2024 IL App (1st) 232009
, the court considered the interpretation of recent statutes. Similarly, in State v. Warth,2021 IL 126802
, commonly referenced as \"state-v-warth\", crucial evidence was examined. Another similar case, People v. Deleon,2020 IL App (1st) 181681
, was instrumental in this decision. The recent ruling in Smith v. Jones, 2019 IL 123456 also provided precedents.\n```\n[CITATION]\n\n\n IN THE COURT OF APPEALS OF OHIO\n SECOND APPELLATE DISTRICT\n MONTGOMERY COUNTY\n STATE OF OHIO :\n :\n Appellee : C.A. No. 29919\n :\n v. : Trial Court Case No. 2021 CR 02340\n :\n ALEXIS CARTER : (Criminal Appeal from Common Pleas\n : Court)\n Appellant :\n :\n ...........\n OPINION\n Rendered on May 17, 2024\n ...........\nJOHNNA M. SHIA, Attorney for Appellant\nMATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee\n .............\nTUCKER, J.\n {¶ 1} Alexis Carter appeals from her conviction on two counts of felonious assault\nand accompanying firearm specifications.\n {¶ 2} Carter contends the trial court erred in its jury instructions on self-defense\nand defense of another. She also claims the jury’s rejection of self-defense and defense\nof another was against the weight of the evidence. -2-\n\n {¶ 3} We conclude that the trial court accurately instructed the jury and that the\nevidence supported a finding that Carter did not act in self-defense or defense of another\nwhen she shot two victims. Accordingly, the trial court’s judgment will be affirmed.\n I. Background\n {¶ 4} A grand jury indicted Carter on two counts of felonious assault (“serious\nphysical harm” and “deadly weapon”) for each of two victims. All counts included firearm\nspecifications. The charges stemmed from a shooting in the parking lot of Sporty’s Tap\nRoom and Grill in Harrison Township shortly after midnight on July 10, 2021.\n {¶ 5} The case proceeded to a jury trial in July 2023. The only real issue was\nwhether Carter had shot the two victims, Jasmine Patterson and Jasmine Woodard, in\nself-defense. Prior to the shooting, the victims had been eating, drinking, and dancing at\nSporty’s with Lesonya Williams and Lea Tyler. Shortly before midnight, Carter arrived at\nthe bar with her friend Tenisha Maston. Carter and Patterson previously had been\ninvolved in a relationship, but they no longer were.\n {¶ 6} Around midnight, the two victims and their friends decided to leave the bar\nabout the same time that Carter and Maston decided to leave. While exiting the bar,\nCarter allegedly pushed Tyler into a door. Carter and Maston proceeded to their vehicle\nwhich was parked next to Patterson’s car. The victims’ group followed Carter and Maston\noutside. The events that followed, which led up to and included the shooting, were\ndisputed at trial.\n {¶ 7} The State presented evidence that Carter began cursing, ran up to Williams,\nand started “swinging.” For her part, Carter testified that Williams approached her and -3-\n\nspit on her before “mutual combat” ensued. The fight evolved into a melee involving\neveryone but Tyler, who did not participate. There was testimony that the fight subsided\nbefore reigniting. In any event, security personnel ultimately used mace to break up the\naltercation. Carter testified that she lost her glasses during the fight and could not see\nanything after being sprayed with mace. At that point, the fight appeared to have stopped,\nat least temporarily, and security left.\n {¶ 8} Carter then entered the passenger’s side of Maston’s vehicle. The parties\npresented divergent testimony about whether Carter stopped fighting and entered the car\nof her own accord or whether Maston effectively forced her into the car. Woodard\ncontinued “yelling and screaming” and approached Maston’s vehicle. Woodard admitted\nyelling, “I want to see blood.” She also opened the driver’s side door of Maston’s vehicle\nand threw “gravel” or “rocks” inside. Woodard described the “gravel” as “little bitty broken\nup pellets.” Eyewitness Mary Hall, who was called by the defense and who contacted\ndefense counsel shortly before trial, testified that she saw “gravel,” which she described\nas “rocks,” being thrown. On redirect examination by defense counsel, she characterized\nthe rocks as being about the size of a hand. A detective testified that he later observed\n“some rocks in there, some gravel.” For her part, Carter testified that she felt a rock hit\nher head. Although no car windows were broken, she also stated that she felt shattering\nglass hit her head.\n {¶ 9} While testifying in her own defense, Carter stated that under the foregoing\ncircumstances she feared for her life and did not know whether she would make it home\nthat night. Carter testified that she and Maston were prevented from leaving. Carter stated -4-\n\nthat she was being hit with rocks and Maston was being “attacked.” After being hit in the\nhead with a rock, she became “fed up.” Although still unable to see due to the mace and\nthe loss of her glasses, she felt around inside Maston’s car and retrieved a loaded\nhandgun. She stepped out of the car and fired three shots. Carter claimed that she\nintended to shoot in the air, but one bullet struck Patterson in the buttocks and one struck\nWoodard in the chest. At the time of the shooting, both victims were on the other side of\nthe car from Carter. Despite the fact that two of her three shots struck Patterson and\nWoodard, Carter insisted on cross-examination that she could not see and that her intent\nwas not to hit anyone.\n {¶ 10} In contrast to Carter’s version of events, Williams testified that all fighting\nhad ceased when Carter fired the handgun. According to Williams, Patterson was bent\nover picking up glasses in the parking lot when Carter shot her in the buttocks. Williams\nstated that no one was around Carter, who was “by herself.”\n {¶ 11} Woodard testified that after throwing gravel in Maston’s car she shut the car\ndoor and helped Patterson pick up a cell phone and keys in the parking lot. She and\nPatterson were facing each other and talking as they prepared to walk toward their own\nvehicle. At that point, she watched Carter exit Maston’s car, reach over the passenger-\nside door, and fire the handgun.\n {¶ 12} Patterson similarly testified that she was picking up items in the parking lot,\nincluding a purse, keys, and glasses, when she looked back and saw Carter on the other\nside of the car holding a handgun. Patterson testified that she heard Carter say, “man,\n\n[SEGMENT 15]\nf**k this,” before firing the weapon three times. Patterson stated that no one was throwing -5-\n\nanything when she and Woodard were shot.\n {¶ 13} Tyler also testified that Patterson and Woodard were doing nothing other\nthan picking up items and proceeding to their own car when Carter shot them. Tyler\nwatched as Carter “started firing” from the passenger’s side of Maston’s car.\n {¶ 14} Finally, eyewitness Hall testified that she did not see where the two victims\nwere when Carter shot them. She also did not see where Carter was when she fired the\nhandgun.\n {¶ 15} Following the presentation of evidence, the trial court provided the jury with\nrelatively lengthy instructions on the law of self-defense. Defense counsel objected to the\nextent that they deviated in part from standard form Ohio Jury Instruction (OJI) self-\ndefense instructions. The trial court overruled the objection.\n {¶ 16} The jury found Carter guilty on two counts of felonious assault (“serious\nphysical harm” and “deadly weapon”) with firearm specifications as to each victim.\nFollowing merger of allied offenses, the trial court sentenced Carter on two counts of\nfelonious assault and two firearm specifications. It imposed concurrent prison terms of\ntwo to three years for the felonious-assault convictions. It imposed three-year prison\nterms on each firearm specification and ordered those terms to be served consecutively\nto each other and consecutively to the concurrent felonious-assault sentences. The result\nwas an aggregate prison term of eight to nine years. Carter appealed, advancing two\nassignments of error.\n II. Analysis\n {¶ 17} The first assignment of error states: -6-\n\n The Trial Court abused its discretion when it instructed the jury on\n self-defense and defense of another.\n {¶ 18} Although the trial court instructed the jury on self-defense and properly\nplaced the burden on the State to disprove the claim beyond a reasonable doubt, Carter\ncontends the trial court instructions were “confusing, inconsistent, and improper.”\n {¶ 19} Carter first challenges an instruction identifying five alternative ways the\nState could disprove self-defense. The instruction stated:\n * * * A person is allowed to use deadly force in self-defense. The\n State must prove beyond a reasonable doubt that the Defendant, when\n using deadly force, did not act in self-defense. To prove that the Defendant’s\n use of deadly force was not in self-defense, the State must prove beyond a\n reasonable doubt at least one of the following: the Defendant was at fault in\n creating a situation giving rise to the shooting; or the Defendant did not have\n reasonable grounds to believe that she was in imminent or immediate\n danger of death or great bodily harm; or the Defendant did not have a\n honest belief, even if mistaken, that she was in imminent danger of death\n or great bodily harm; or the Defendant violated a duty to retreat to avoid the\n danger; or the Defendant used unreasonable force.\nTrial Transcript Vol. II at 427.\n {¶ 20} In challenging the foregoing instruction, Carter contends the duty to retreat\nhas been removed from the elements of self-defense. Therefore, she claims a violation\nof that duty should not have been identified as a way to disprove self-defense. Carter -7-\n\nconcedes that a jury still may consider the potential for “withdrawal” when a defendant is\nthe initial aggressor. She maintains, however, that withdrawal by an initial aggressor\ninvolves a different issue than a more general duty to retreat to avoid danger. That being\nso, Carter argues that the duty to retreat should not have been mentioned and that\nwithdrawal should have been addressed in the context of her potentially being an at-fault\ninitial aggressor.\n {¶ 21} Upon review, we find Carter’s argument to be unpersuasive. After\ninstructing the jury that violation of a duty to retreat was one way to disprove self-defense,\nthe trial court gave the following additional instruction: “The Defendant had no duty to\nretreat before using force in self-defense if the Defendant was in a place in which she\nlawfully had the right to be.” [CITATION]. The trial court also instructed the jury: “In\ndetermining whether the Defendant, in using force in self-defense, reasonably believed\nthat the force was necessary to prevent injury, loss, or risk of life or safety, you may not\nconsider the possibility of retreat by the Defendant.” [CITATION]. These instructions accurately\nstated the law. See R.C. 2901.09(B) and (C).\n {¶ 22} Having reviewed the entirety of the trial court’s instructions, which the jury\nwas presumed to have followed, we have no reason to believe that the jury rejected self-\ndefense based on a finding that Carter violated a duty to retreat. Notably, the State did\nnot present evidence or argument suggesting that self-defense was inapplicable because\nCarter violated a duty to retreat. The State did not claim Carter lacked a right to be in the\nparking lot. Therefore, the trial court’s provision of accurate instructions on the issue,\nwhile perhaps unnecessary given the dearth of evidence that Carter was in the parking -8-\n\nlot unlawfully, was unlikely to have misled or confused the jury. [CITATION]\n {¶ 23} With regard to Carter’s argument that the trial court should have instructed\nthe jury about “withdrawal” in the context of an at-fault, initial-aggressor defendant, that\nis precisely what the trial court did. It instructed the jury as follows:\n Defendant did not act in self-defense if the State proved beyond a\n reasonable doubt that the Defendant was at fault in creating the situation\n that resulted in the injury.\n The Defendant was at fault if the Defendant was the initial aggressor\n and one of the following apply: * * * Defendant did not withdraw from the\n situation; [or] the Defendant withdrew from the situation, but did not inform\n Jasmine Patterson and/or Jasmine Woodard or reasonably indicate by\n words or acts to Jasmine Patterson or Jasmine Wood of her withdrawal.\nId. at 428.\n {¶ 24} We see nothing objectionable about the foregoing instruction, which again\nwas a correct statement of the law. See [CITATION] (“But R.C. 2901.09(C) is not an absolute prohibition on introducing\nevidence involving the possibility of retreat. Rather, the statute only prohibits fact finders\nfrom considering evidence involving the possibility of retreat to determine whether the\ndefendant’s belief that force was necessary was reasonable. Fact finders may, however,\nconsider retreat evidence to determine who was at fault in creating the situation leading\nto the affray.”); [CITATION] -9-\n\n(“While a person no longer has a duty to retreat from a place he or she is lawfully permitted\nto be, there is no language in the amended statute to suggest a trier of fact is precluded\nfrom considering whether the defendant was the initial aggressor or whether the\ndefendant attempted to withdraw from the situation when determining whether the\ndefendant was at fault in creating the situation giving rise to the affray. The narrow\nlanguage of the amended statute does not place on triers of fact express restrictions on\nconsideration of fault.”); [CITATION] at ¶ 49 (“[A]s a general matter, if a person provokes or\nvoluntarily enters a fight, that person can revive his or her right to self-defense by\nwithdrawing from that altercation. It follows that a person generally cannot claim self-\ndefense if that person provoked or voluntarily entered a fight and did not withdraw from\nthe altercation.”).\n {¶ 25} Carter next challenges an instruction stating: “The Defendant did not act in\nself-defense if the State proved beyond a reasonable doubt that the Defendant used more\nforce than reasonably necessary and the force used was greatly disproportionate to the\napparent danger.” Trial Transcript Vol. II at 429-430. Carter contends this instruction\nshould not have been presented as a “separate option” to defeat self-defense but rather\n“as a consideration as to the second element of self-defense.”\n {¶ 26} We are unsure precisely what Carter means, and the cases she cites do not\nsupport the proposition that the trial court erred in giving an instruction regarding the use\nof more force than reasonably necessary and force that was greatly disproportionate to\nthe danger. Carter appears to suggest that the trial court should have broken self-defense\ndown into only two elements rather than five or even more in the present case. In [CITATION] -10-\n\nv. Nicholson, [CITATION], however, the Ohio\nSupreme Court recently approved self-defense instructions quite similar to those given in\nCarter’s case. In Nicholson, the trial court’s instructions identified four elements of self-\ndefense. Id. at ¶ 170. One of the four elements combined the need for the defendant to\nhave an objectively reasonable belief and a true subjective belief that he was in immediate\ndanger of death or great bodily harm. The trial court gave the same instructions in Carter’s\ncase except that it identified five elements of self-defense by instructing on the objectively\nreasonable and subjective beliefs separately. In Nicholson, the Ohio Supreme Court\nfound nothing improper about the trial court dividing self-defense into four elements in its\ninstructions and requiring the prosecution to disprove only one of them. Id. at ¶ 171. We\nreach the same conclusion in Carter’s case, which involved substantially-similar\ninstructions.\n {¶ 27} As in the present case, the trial court in Nicholson also separately instructed\nthe jury: “If the defendant used more force than reasonably necessary and if the force\n\n[SEGMENT 16]\nused is greatly disproportionate to the apparent danger, then the defense of self-defense\nis not available.” Id. at ¶ 170. We see nothing improper about the trial court giving a\nsubstantially-similar instruction in Carter’s case. Once again, this instruction was a correct\nstatement of the law. [CITATION]. It also was pertinent\nto the evidence presented.\n {¶ 28} In her reply brief, Carter acknowledges that existing standard OJI\ninstructions may not be “a correct statement of law” due to recent stand-your-ground -11-\n\nlegislation and case law concerning a defendant’s use of excessive or disproportionate\nforce. She also recognizes that “case law supports the independent instructions” given by\nthe trial court. She reasons, however, that when the trial court’s instructions are “taken\ntogether” they become confusing and unclear. Having thoroughly examined the trial\ncourt’s instructions on self-defense, we reject Carter’s assertion that they were “confusing\nat best, if not improper,” and that they deprived her of a fair trial.\n {¶ 29} With regard to defense of another (her friend Maston), Carter simply\nreferences the self-defense arguments we rejected above and states: “Likewise, and for\nthe same reasons, the trial court abused its discretion when it gave the jury instructions\non the same five options that the State had to disprove Carter’s defense of another claim.”\nFor the same reasons that the trial court did not err in instructing the jury on self-defense,\nwe conclude that it did not err in providing substantially-similar instructions regarding\ndefense of another. Accordingly, the first assignment of error is overruled.\n {¶ 30} The second assignment of error states:\n The Manifest Weight of the Evidence Supported Carter’s Self-Defense\n and Defense of Another Claims.\n {¶ 31} Carter contends her convictions were against the manifest weight of the\nevidence. She argues that the evidence supported a finding that she acted in self-defense\nand in defense of Maston. In particular, Carter asserts that she had no duty to retreat,\nthat she was not at fault, and that she possessed an objectively reasonable and subjective\nfear of death or great bodily harm when she shot the victims. Carter contends she was\nbeing verbally threatened with violence, struck with large rocks, and prevented from -12-\n\nleaving when she fired the handgun. Under these circumstances, she asserts that a\nfinding of no self-defense was against the weight of the evidence.\n {¶ 32} When a conviction is challenged on appeal as being against the weight of\nthe evidence, an appellate court must review the entire record, weigh the evidence and\nall reasonable inferences, consider witness credibility, and determine whether, in\nresolving conflicts in the evidence, the trier of fact “clearly lost its way and created such\na manifest miscarriage of justice that the conviction must be reversed and a new trial\nordered.” [CITATION]. A judgment should be reversed as being against the manifest weight of the evidence “only\nin the exceptional case in which the evidence weighs heavily against the conviction.”\n[CITATION].\n {¶ 33} “Because the factfinder * * * has the opportunity to see and hear the\nwitnesses, the cautious exercise of the discretionary power of a court of appeals to find\nthat a judgment is against the manifest weight of the evidence requires that substantial\ndeference be extended to the factfinder’s determinations of credibility. The decision\nwhether, and to what extent, to credit the testimony of particular witnesses is within the\npeculiar competence of the factfinder, who has seen and heard the witness.” [CITATION]. “The fact\nthat the evidence is subject to different interpretations does not render the conviction\nagainst the manifest weight of the evidence.” [CITATION].\n {¶ 34} With the foregoing standards in mind, we reject Carter’s manifest-weight -13-\n\nchallenge predicated on self-defense and defense of another. At a minimum, the jury\nreasonably could have concluded that she lacked an objectively reasonable belief that\nshe or Maston was in imminent danger of death or great bodily harm when she shot the\nvictims. Carter claimed that she was trapped, helpless, terrified, and blind when she fired\nthe handgun in response to being verbally threatened and assaulted with large rocks.\n {¶ 35} In contrast to Carter’s version of events, the State’s witnesses testified that\nall fighting had ceased when Carter fired the handgun. According to Williams, Patterson\nwas bent over picking up glasses when Carter shot her in the buttocks. Williams testified\nthat Carter was “by herself.” Woodard similarly testified that she had shut Maston’s car\ndoor after throwing gravel inside the car and that she was helping Patterson pick up\nobjects. Patterson testified that no one was throwing anything when Carter fired the\nhandgun. Patterson also heard Carter say, “man, f**k this”, before firing the weapon. Tyler\ntestified that Patterson and Woodard were doing nothing other than picking up items and\nproceeding to their own car when Carter shot them. A video introduced into evidence\ndepicted Carter pacing back and forth with no one in her immediate vicinity just before\nthe shooting. After entering the car, she exited again with a firearm, placed herself\nbetween the door and the car’s frame, and fired three shots.\n {¶ 36} We note too that the jury certainly could have found aspects of Carter’s\ntestimony to be not credible. Although she claimed to have feared for her life, she testified\nthat she was “fed up” when she shot the victims. This testimony suggests anger or\nretaliation more than fear. Despite purportedly having been blinded by mace, Carter also\nclaimed to have felt a loaded weapon with a chambered bullet in Maston’s car. She then -14-\n\nmanaged to hit the victims with two of the three shots she fired, despite claiming that did\nnot intend to hit them at all.\n {¶ 37} Although the parties disputed what had occurred in the bar and during the\nprotracted fight in the parking lot, the jury reasonably could have concluded based on the\nvideo evidence and the testimony of the State’s witnesses that Carter and Maston were\nnot in imminent danger of death or great bodily harm when Carter shot the victims.\nConsequently, the jury’s finding of no self-defense and no defense-of-another was\nsupported by the manifest weight of the evidence.\n III. Conclusion\n {¶ 38} The judgment of the Montgomery County Common Pleas Court is affirmed.\n .............\nEPLEY, P.J. and LEWIS, J., concur. \n[Cite as [CITATION].]\n\n\n IN THE COURT OF APPEALS OF OHIO\n THIRD APPELLATE DISTRICT\n UNION COUNTY\n\n\nSTATE OF OHIO,\n CASE NO. 14-23-12\n PLAINTIFF-APPELLEE,\n v.\nROSSTIN GUY BENDER, OPINION\n DEFENDANT-APPELLANT.\n\n Appeal from Union County Common Pleas Court\n Trial Court No. 2022-CR-0106\n Judgment Affirmed\n Date of Decision: May 6, 2024\n\nAPPEARANCES:\n Alison Boggs for Appellant\n David W. Phillips for Appellee Case No. 14-23-12\n\n\nZIMMERMAN, J.\n {¶1} Defendant-appellant, Rosstin G. Bender (“Bender”), appeals the March\n22, 2023 judgment entry of sentence of the Union County Court of Common Pleas.\nFor the reasons that follow, we affirm.\n {¶2} This case stems from an April 29, 2022 altercation between Bender and\nthe victim, B.H., during which Bender stabbed B.H. with a knife nine times. On\nApril 29, 2022, B.H., along with his girlfriend, Faith Selover (“Faith”) and her\nbrother, Joel Selover (“Joel”), invited Dean Smith (“Smith”), Bender, and Star\nMentzer (“Mentzer”), Bender’s girlfriend, to the residence that the three shared to\n“see and enjoy for a campfire” the landscape lighting that they installed in their\nbackyard. (Feb. 6, 2023 Tr., Vol. II, at 33). During the gathering, “the lights kept\ngetting kicked over and kicked down, stepped on[, so B.H.] asked several times to\nplease watch the lights.” (Id. at 37). According to B.H., when he and Bender were\n“bickering back and forth about the lights,” Bender discharged a firearm into the\nground. (Id. at 38). Joel testified that he believed that Bender “discharged the gun\ninto the ground * * * to diffuse the situation.” (Id. at 83).\n {¶3} Later, when B.H. returned outside “after using the bathroom[, he saw]\nthat the lights were kicked over again.” (Id. at 40). Because Mentzer giggled after\nB.H. inquired about “who kicked over the lights,” B.H. asked Bender and Mentzer\nto “leave” “if they think it’s funny * * * .” (Id.). Instead of leaving, Bender “asked\n Case No. 14-23-12\n\nif [B.H.] wanted to fight him” and B.H. agreed. (Id.). According to B.H., Bender\nthen traversed 15-to-20 feet to reach him. However, before Bender could get to\nB.H., Faith “tried to come in the middle between [them] to put her arms out and\nseparate the distance.” (Id. at 47). Nevertheless, Bender “swung past her” and “hit\n\n[SEGMENT 17]\n[B.H.] first.” (Id. at 48). “[T]he last thing [B.H. could] remember is holding Mr.\nBender on top of [him] and [Faith] pulling Bender off of [him] and [Joel] pulling\n[B.H.] back off the ground.” (Id. at 49). B.H. did not know that he had been stabbed\nuntil he tried to stand.\n {¶4} On May 6, 2022, the Union County Grand Jury indicted Bender on\nCounts One and Two of felonious assault in violation of R.C. 2903.11(A)(1),\n(D)(1)(a), second-degree felonies, and Count Three of using weapons while\nintoxicated in violation of R.C. 2923.15(A), (B), a first-degree misdemeanor. On\nMay 10, 2022, Bender appeared for arraignment and pleaded not guilty to the counts\nalleged in the indictment.\n {¶5} On October 4, 2022, Bender filed a notice of self-defense under Crim.R.\n12.2 stating that he intended\n to present evidence that on April 22, 2022 [sic], the alleged victim *\n * * punched [Bender] in the face without justification and used his\n forearm to compress [Bender’s] throat while on the ground to the\n point he could not breathe; and that [Bender] had reasonable grounds\n to believe, and honestly believed, he was imminent or immediate\n danger of death or great bodily harm, at the time he defended himself\n with a knife.\n Case No. 14-23-12\n\n(Doc. No. 44). On October 7, 2022, the State filed a memorandum in opposition to\nBender’s notice of self-defense. That same day, the State filed a motion in limine\nrequesting that the trial court prevent Bender “from introducing specific instance\n[sic] of conduct by the victim in this matter unless and until [Bender] establishes\nthose instances of conduct are relevant and otherwise admissible to his claim of self-\ndefense.” (Doc. No. 48).\n {¶6} On January 31, 2023, the State filed another motion in limine requesting\nthat the trial court prevent Bender “from introducing specific instances of conduct\nto prove the victim was the initial aggressor in support of his claim of self-defense.”\n(Doc. No. 78). On February 6, 2023, Bender filed a memorandum in opposition to\nthe State’s motion in limine. That same day, Bender requested that the trial court\ninstruct the jury on self-defense and the inferior-degree offense of aggravated\nassault.\n {¶7} The case proceeded to a jury trial on February 6-8, 2023. On February\n8, 2023, the jury found Bender guilty of the counts alleged in the indictment.\n {¶8} On March 22, 2023, the trial court sentenced Bender to a minimum term\nof five years in prison to a maximum term of seven and one-half years in prison on\nCount One and 180 days in jail on Count Three. (Doc. No. 91). The trial court\nordered that Bender serve the terms concurrently. Further, the trial court merged\nCounts One and Two for purposes of sentencing.\n Case No. 14-23-12\n\n {¶9} Bender filed his notice of appeal on April 20, 2023. He raises seven\nassignments of error for our review. For ease of our discussion, we will begin by\ndiscussing Bender’s first and sixth assignments of error together; followed by his\nsecond assignment of error; then together his third, fourth, and fifth assignments of\nerror; and finally his seventh assignment of error.\n First Assignment of Error\n The Jury Lost Its Way When Reviewing The Evidence Presented\n For Guilt Contrasted With The Evidence Of Self-Defense,\n Resulting In A Verdict That Is Against The Manifest Weight Of\n The Evidence.\n Sixth Assignment of Error\n The Trial Court Erred When It Overruled Appellant’s Motion\n For A Criminal Rule 29 Acquital [sic].\n {¶10} In his first and sixth assignments of error, Bender argues that his\nfelonious-assault convictions are based on insufficient evidence and are against the\nmanifest weight of the evidence. On appeal, Bender does not dispute that the State\nproved the elements of felonious assault. Rather, Bender contends that his\nfelonious-assault convictions are based on insufficient evidence and are against the\nmanifest weight of the evidence because he “presented evidence by a preponderance\nof the evidence that he acted in self-defense, and the State failed to prove beyond a\nreasonable doubt that it was not self-defense * * * .” (Appellant’s Brief at 11).\n Case No. 14-23-12\n\n Standard of Review\n {¶11} Under Crim.R. 29(A), a court “shall order the entry of the judgment\nof acquittal of one or more offenses * * * if the evidence is insufficient to sustain a\nconviction of such offense or offenses.” Consequently, “[a] motion for acquittal\nunder Crim.R. 29(A) is governed by the same standard as the one for determining\nwhether a verdict is supported by sufficient evidence.” [CITATION], ¶ 37.\n {¶12} “An appellate court’s function when reviewing the sufficiency of the\nevidence to support a criminal conviction is to examine the evidence admitted at\ntrial to determine whether such evidence, if believed, would convince the average\nmind of the defendant’s guilt beyond a reasonable doubt.” [CITATION], paragraph two of the syllabus, superseded by state constitutional\namendment on other grounds, [CITATION]. Accordingly,\n“[t]he relevant inquiry is whether, after viewing the evidence in a light most\nfavorable to the prosecution, any rational trier of fact could have found the essential\nelements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the\nevidence was sufficient, we neither resolve evidentiary conflicts nor assess the\ncredibility of witnesses, as both are functions reserved for the trier of fact.” [CITATION], ¶ 33.\nSee also [CITATION], ¶ 19\n Case No. 14-23-12\n\n(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight\nof the evidence.”).\n {¶13} On the other hand, in determining whether a conviction is against the\nmanifest weight of the evidence, a reviewing court must examine the entire record,\n“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of\nwitnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier\nof fact] clearly lost its way and created such a manifest miscarriage of justice that\nthe conviction must be reversed and a new trial ordered.’” [CITATION] at 387,\nquoting [CITATION], 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing\ncourt must, however, allow the trier of fact appropriate discretion on matters relating\nto the weight of the evidence and the credibility of the witnesses. [CITATION],\n10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,\n“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the\nconviction,’ should an appellate court overturn the trial court’s judgment.” [CITATION],\nquoting [CITATION], 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.\n Sufficiency of the Evidence\n {¶14} As an initial matter, even though Bender challenges the sufficiency\nand the weight of the evidence supporting the jury’s finding of guilt as to the\nfelonious-assault charge under Count Two of the indictment, we need not address\nthat argument. Accord [CITATION], 3d Dist. Hardin No. 6-18-07, 2019-Ohio-\n Case No. 14-23-12\n\n4123, ¶ 11. “Specifically, ‘[w]hen counts in an indictment are allied offenses, and\nthere is sufficient evidence to support the offense on which the state elects to have\nthe defendant sentenced, the appellate court need not consider the sufficiency [or\nweight] of the evidence on the count that is subject to merger because any error\nwould be harmless’ beyond a reasonable doubt.” Id., quoting [CITATION].\n {¶15} In this case, error, if any, with respect to the sufficiency or weight of\nthe evidence as to the jury’s finding of guilt as to Bender’s felonious-assault charge\nunder Count Two is harmless beyond a reasonable doubt because it was merged\nwith Count One. Accord id. at ¶ 12; [CITATION] at ¶ 13. In other words, Bender was not\nconvicted of the felonious-assault offense alleged under Count Two because the trial\ncourt merged that offense for purposes of sentencing. Accord [CITATION] at ¶ 12.\nIndeed, the Supreme Court of Ohio has explicitly stated that a “conviction” requires\nboth a finding of guilt and a sentence. [CITATION] at ¶ 16. For these reasons, we need\nnot address any arguments challenging the sufficiency or weight of the evidence\nregarding the jury’s finding of guilt as to Bender’s felonious-assault charge under\n\n[SEGMENT 18]\nCount Two. Accord [CITATION] at ¶ 12; [CITATION] at ¶ 13, 18.\n {¶16} Therefore, we will begin by addressing Bender’s sufficiency-of-the-\nevidence argument as it relates to his felonious-assault conviction under Count One.\nOn appeal, Bender argues that the trial court erred by denying his Crim.R. 29 motion\nbecause the State failed to prove beyond a reasonable doubt that he did not act in\n Case No. 14-23-12\n\nself-defense. Decisively, Bender’s challenge to the sufficiency of the evidence as\nto self-defense is inappropriate. Accord [CITATION].\n {¶17} Traditionally, “[s]elf-defense is an affirmative defense, and the\naccused bears the burden of proving it by a preponderance of the evidence.” [CITATION]\nat ¶ 11. “However, effective March 28, 2019, the General Assembly modified\nOhio’s self-defense statute, R.C. 2901.05, to place the burden on the state to prove\nbeyond a reasonable doubt that the accused did not act in self-defense.” [CITATION] Currently,\n“[e]vidence as to all elements of self-defense must be presented at trial in order for\na defendant to be acquitted, but to overcome the claim, the state need only disprove\none element of the defense by proof beyond a reasonable doubt.” Id. at ¶ 31.\n“Moreover, any presumption as to the use of force in self-defense ‘may be rebutted\nby a preponderance of the evidence, provided that the prosecution’s burden of proof\nremains proof beyond a reasonable doubt as described in’ R.C. 2901.05(B)(1).” Id.,\nquoting R.C. 2901.05(B)(4).\n {¶18} Nevertheless, “there is no due-process right to a presumption of an\naffirmative defense such as self-defense.” [CITATION] at ¶ 19. Thus, notwithstanding “the shift in the burden of proof by the\namendment to R.C. 2901.05, the absence of self-defense is not an essential element\n Case No. 14-23-12\nof any offense that the state carried the burden of proving at trial.” [CITATION] at ¶ 36.\nSee also [CITATION], 10th Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶\n43 (concluding that “there is nothing in the current version of R.C. 2901.05(B)(1)\nindicating that by shifting the burden of proof on the affirmative defense of self-\ndefense, the General Assembly intended to transform the absence of self-defense\ninto an essential element of a criminal offense”). Consequently, “[Bender’s] claim\nof self-defense is not an aspect of a sufficiency of the evidence or Crim.R. 29\nanalysis, and the trial court did not err [by denying his] Crim.R. 29 motion [in light\nof his] self-defense claim.” [CITATION] at ¶ 36. Therefore, we will address Bender’s\nself-defense argument only in our analysis of the manifest weight of the evidence.\nId.\n Manifest Weight of the Evidence\n {¶19} Bender was convicted of felonious assault in violation of R.C.\n2903.11(A)(1). R.C. 2903.11 provides, in its relevant part, that “[n]o person shall\nknowingly * * * [c]ause serious physical harm to another * * * .” R.C.\n2903.11(A)(1). Bender does not dispute that the State proved the elements of that\noffense. Rather, Bender argues that the jury lost its way in concluding that he did\nnot act in self-defense.\n {¶20} Under Ohio’s current self-defense statute, “a defendant claiming self-\ndefense has the burden of production—that is, the burden of producing evidence\nthat ‘tends to support’ his use of force in defending himself.” [CITATION]\n Case No. 14-23-12\n\n[CITATION]. Thus, “if evidence is presented ‘that tends to\nsupport’ that the defendant used the force in self-defense, the prosecution must\nprove beyond a reasonable doubt that the accused did not act in self-defense.”\n(Emphasis sic.) [CITATION],\n¶ 43. “Accordingly, ‘the burden of proof for * * * self-defense has shifted to the\nstate,’ but ‘the burden of production for * * * self-defense[ ] remains with the\ndefendant.’” (Emphasis sic.) [CITATION],\n¶ 104, quoting [CITATION], at ¶ 44.\n {¶21} “Self-defense is an affirmative defense that, if proved, relieves a\ndefendant of criminal liability for the force that the defendant used.” [CITATION] at ¶\n43. “The elements of self-defense differ depending on whether the defendant used\ndeadly or non-deadly force to defend himself.” [CITATION], at ¶ 15.\nDeadly force is “any force that carries a substantial risk that it will proximately\nresult in the death of any person.” R.C. 2901.01(A)(2). A “substantial risk” is “a\nstrong possibility, as contrasted with a remote or significant possibility, that a\ncertain result may occur or that certain circumstances may exist.” R.C.\n2901.01(A)(8). In most situations, “stabbing a victim (or victims) with a knife\nconstitutes the use of deadly force.” [CITATION],\n¶ 15.\n To establish self-defense through the use of deadly force, an accused\n must prove: “(1) the accused was not at fault in creating the situation\n giving rise to the affray; (2) the accused had a bona fide belief that he\n Case No. 14-23-12\n\n or she was in imminent danger of death or great bodily harm and that\n the only means of escape from such danger was in the use of force;\n and (3) the accused must not have violated any duty to retreat or to\n avoid the danger.”\n[CITATION] at ¶ 16, quoting [CITATION], ¶ 14. Generally, “a person is privileged only to ‘use as much force as is\nreasonably necessary to repel [an] attack.’” [CITATION], quoting [CITATION], ¶ 61.\n {¶22} “[T]he State must ‘disprove at least one of the elements of self-defense\nbeyond a reasonable doubt.’” [CITATION], ¶ 29, quoting [CITATION], ¶ 31. “‘The elements of self-defense are cumulative, and a\ndefendant’s claim of self-defense fails if any one of the elements is not present.’”\nId., quoting [CITATION], ¶ 15.\n {¶23} On appeal, Bender contends that the evidence that he presented at trial\nthat he acted in self-defense is weightier than the evidence presented by the State\nthat he did not. In support of this argument, Bender points to the inconsistencies of\nB.H.’s, Joel’s, and Faith’s testimonies. Specifically, Bender contends that “the\nState’s evidence regarding the logistics of the fight is contrary to [findings of the\nemergency room doctor who B.H.], creating doubt on the credibility of its witnesses\n Case No. 14-23-12\n\nin their entirety.” (Appellant’s Brief at 5). That is, Bender contends that “the\nplacement of [B.H.’s] wounds is consistent with [B.H.] being on top of Mr. Bender\nand Mr. Bender doing whatever he could to get [B.H.] off of him because he was\nbeing choked.” (Id. at 11). Consequently, Bender argues that the weight of the\nevidence supports that he acted in self-defense. In other words, Bender contends\nthat his version of the incident is more credible than B.H.’s, Joel’s, and Faith’s\nversion.\n {¶24} “Although we review credibility when considering the manifest\nweight of the evidence, the credibility of witnesses is primarily a determination for\nthe trier of fact.” [CITATION], ¶ 13, citing [CITATION], at paragraph one of the syllabus. “The trier\nof fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]\nand voice inflections, and use these observations in weighing the credibility of the\nproffered testimony.’” Id., quoting [CITATION], ¶ 24, citing [CITATION].\n {¶25} Notwithstanding Bender’s contention that B.H.’s, Joel’s, and Faith’s\ntestimonies conflict with the medical evidence, “we are mindful of the jury’s\n‘superior first-hand perspective in judging the demeanor and credibility of\nwitnesses.’” [CITATION], ¶ 33,\nquoting [CITATION], ¶ 125.\n Case No. 14-23-12\n\nCritically, it is well within the province of the trier-of-fact to determine the\ncredibility of B.H.’s, Joel’s, Faith’s, and Bender’s testimonies, including the\nprerogative to find Bender’s version of events not to be truthful. Accord [CITATION]. Indeed, the trier of\nfact was free to believe or disbelieve B.H.’s, Joel’s, and Faith’s testimonies (or\n\n[SEGMENT 19]\nBender’s testimony) or accept part of what B.H., Joel, Faith, and Bender said and\nreject the rest. Accord id.\n {¶26} Even so, notwithstanding Bender’s contention that the weight of the\nevidence suggests that he acted in self-defense because the medical evidence\nsupports his version of events, the balance of the State’s evidence weighs against\nBender’s self-defense claim. In other words, the weight of the evidence reflects that\nBender was at least partially at fault in creating the situation giving rise to the affray.\nIndeed, the evidence reflects that Bender voluntarily entered into the fight with B.H.\nby inviting B.H. to fight. The record further reflects that Bender exceeded the force\nreasonably necessary for self-defense during the fight. See [CITATION] (concluding “that Martin voluntarily\nentered the encounter by proceeding to the police station parking lot and that he\nexceeded the force reasonably necessary for self-defense by using a deadly\nweapon”).\n {¶27} To begin with, Bender bore the initial burden of production under the\nfirst element of a self-defense claim to demonstrate that he was not at fault for\n Case No. 14-23-12\n\ncreating the violent situation. Accord [CITATION]. “[T]he first element of a self-defense claim provides\nthat the defendant must not be at fault in creating the situation that gave rise to the\naffray.” [CITATION]. See also [CITATION] (“‘Ohio courts have long recognized that a person cannot provoke [an] assault or\nvoluntarily enter an encounter and then claim a right of self-defense.’”), quoting\n[CITATION]. “This concept is broader than simply not being the immediate aggressor.”\n[CITATION]. “A person may not provoke an assault or voluntarily enter an\nencounter and then claim a right of self-defense.” Id. “Ohio courts have long\nrecognized that a defendant is at fault in creating the situation giving rise to the\naffray when the defendant chooses to confront the victim or knowingly go to a place\nwhere the victim will be, even when the defendant’s action was otherwise\ncompletely lawful.” Id. at ¶ 15.\n {¶28} In this case, the State presented the testimony of B.H. and Faith, who\ntestified that Bender was the initial aggressor and that he voluntarily entered into\nthe fight with B.H. by inviting B.H. to fight. Accord [CITATION] (specifying that “[b]oth of the\nstate’s witnesses contradicted appellant’s version, testifying Barnett and appellant\nwillingly met up in the middle of the street and [the appellant] began to throw\n Case No. 14-23-12\n\npunches”). See also [CITATION] at ¶ 15 (“Even if [the victim] grabbed appellant by the\nneck and pushed her against the house and, under appellant’s version, appellant did\nnot throw the first punch, the trial court did not err in finding that appellant was at\nfault in creating the situation.”).\n {¶29} At trial, B.H. testified that, after he asked Bender and Mentzer to leave,\nBender responded by asking him if he “wanted to fight him.” (Feb. 6, 2023 Tr.,\nVol. II, at 40). B.H. further testified that, after he agreed to fight Bender, Bender\ntraversed 15-to-20 feet to reach him, then “swung past” Faith (who was trying to\nintercede) and struck B.H. first. (Id. at 48). Faith likewise testified that, after B.H.\nasked Bender and Mentzer to leave, Bender “asked [B.H.] if he wanted to fight.”\n(Id. at 127). According to Faith, Bender “punched [B.H.] in the face,” then B.H.\n“punched him back.” (Id. at 130).\n {¶30} Moreover, even though Bender denied that he threw the first punch,\nBender’s own testimony suggests that he was at least partially at fault for creating\nthe situation giving rise to the affray. Accord [CITATION] at ¶ 85; [CITATION]\n11th Dist. Trumbull Nos. 2002-T-0115 and 2002-T-0116, 2003-Ohio-6762, ¶ 30-31\n(concluding that the defendant could not claim self-defense because “his testimony\ndemonstrated that he was at least partially at fault for creating the situation giving\nrise to the affray”). That is, Bender testified that he voluntarily entered the\nencounter with B.H. See [CITATION], 2d Dist. Greene No. 2019-CA-19,\n2020-Ohio-3681, ¶ 40.\n Case No. 14-23-12\n\n {¶31} Nevertheless, the weight of the evidence presented at trial reflects that\nBender did not have a bona fide belief that he was imminent danger of death or great\nbodily harm and that this only means of escape from such danger was the use of\nforce a required by the second element of a self-defense claim. Under the second\nelement of self-defense, “[t]he person’s belief must be objectively reasonable under\nthe circumstances and he must subjectively believe he needed to resort to force to\ndefend himself.” [CITATION], ¶\n54. Specifically, “‘[t]he objective part of the test requires consideration of “whether,\nconsidering all of the defendant’s particular characteristics, knowledge, or lack of\nknowledge, circumstances, history, and conditions at the time of the attack,” a\nreasonable person would believe that danger was imminent.’” Id., quoting [CITATION], ¶ 30, quoting [CITATION], ¶ 23.\n“The subjective part requires consideration of whether the defendant himself\nactually believed that he was in imminent danger.” Id.\n {¶32} Importantly, under the second element of a self-defense claim “a\ndefendant must show that ‘that the degree of force used was “warranted” under the\ncircumstances and “proportionate” to the perceived threat.’” Id. at ¶ 55, quoting\n[CITATION], ¶ 31. “‘If * * * the amount of force used is so disproportionate that\nit shows an “unreasonable purpose to injure,” the defense of self-defense is\nunavailable.’” Id., quoting [CITATION], 2011-\n Case No. 14-23-12\n\nOhio-87, ¶ 27, quoting [CITATION].\n {¶33} In this case, the weight of the evidence presented at trial demonstrates\nthat Bender’s use of deadly force was not “reasonably necessary and proportionate\nto the apparent danger.” [CITATION]. Critically, Bender “brought a knife to a fist fight and seriously\ninjured” B.H. [CITATION]. Specifically, the evidence reflects that Bender and B.H. “met with the intention\nof engaging in a fist fight.” [CITATION] (resolving that “it was\nwithin the province of the jury to credit the testimony of the state’s witnesses that\nBarnett and appellant met with the intention of engaging in a fist fight”). Indeed,\nthere was no evidence presented that B.H. wielded a weapon during the altercation.\n {¶34} Certainly, under the facts presented, it was within the province of the\njury to credit the testimonies offered by the State’s witnesses that Bender did not\nhave “reasonable grounds for believing there was an imminent threat of death or\nserious bodily harm.” [CITATION]. Consequently, the evidence presented reflects\nthat Bender “used deadly force when he was not faced with deadly force” and that\n“[t]he degree of force used by [Bender] was neither warranted under the\ncircumstances nor proportionate to the perceived threat.” [CITATION].\n Case No. 14-23-12\n\n {¶35} Therefore, based on our review of the record, we conclude that the\ntrier of fact did not lose its way by concluding that Bender did not act in self-defense.\n“The jury heard all of the testimony, considered the evidence, and found the state’s\nwitnesses credible, and we will not disturb the jury’s verdict on appeal.” [CITATION]\nImportantly, “[t]he jury did not lose its way simply because it believed the\nprosecution testimony and disbelieved appellant’s account.” [CITATION] Accordingly,\nweighing the evidence and all reasonable inferences, and considering the credibility\nof witnesses, we conclude the jury did not clearly lose its way and create such a\nmanifest miscarriage of justice that Bender’s felonious-assault conviction must be\nreversed and a new trial ordered. Thus, Bender’s felonious-assault conviction under\nCount One is not against the manifest weight of the evidence.\n {¶36} Bender’s first and sixth assignments of error are overruled.\n Second Assignment of Error\n The Trial Court Erred When It Failed To Grant A Mistrial First\n After The Jury Was Tainted By Inaccurate Statements Made By\n The Prosecutor Regarding Appellant’s Attempt To Invoke The\n Fifth Amendment When He Was On The Stand And Second\n When The Prosecutor Improperly Commented On Appellant’s\n Pre-Arrest Silence.\n {¶37} In his second assignment of error, Bender argues that the trial court\nerred by failing to declare a mistrial based on prosecutorial misconduct.\nSpecifically, Bender argues that the prosecutor improperly “commented on * * *\nMr. Bender invoking his Fifth Amendment right not to incriminate himself, then\n\n[SEGMENT 20]\n Case No. 14-23-12\n\nminutes later commenting on Mr. Bender’s pre-arrest silence.” (Appellant’s Brief\nat 12).\n Standard of Review\n {¶38} “‘A mistrial should not be ordered in a cause simply because some\nerror has intervened. The error must prejudicially affect the merits of the case and\nthe substantial rights of one or both of the parties.’” [CITATION], ¶ 18, quoting\n[CITATION]. “Notably, mistrials are appropriate\nonly when the ends of justice so require and a fair trial is no longer possible.” [CITATION], ¶ 61.\n {¶39} “Because it rests within the sound discretion of the court, we review a\ntrial court’s grant or denial of a motion for a mistrial for an abuse of discretion.”\n[CITATION], ¶ 44. An\nabuse of discretion implies that the trial court acted unreasonably, arbitrarily, or\nunconscionably. [CITATION].\n Analysis\n {¶40} In this case, Bender moved for a mistrial based on alleged improper\nstatements made by the prosecutor at trial. “When a defendant moves for a mistrial\nbased on prosecutorial misconduct, the trial court must determine whether ‘the\nprosecutor’s actions were improper, and, if so, whether the defendant’s substantial\nrights were actually prejudiced.’” [CITATION],\n Case No. 14-23-12\n2023-Ohio-2863, ¶ 24, quoting [CITATION]. Thus, “‘[w]hen the grounds for a mistrial are based on\nprosecutorial misconduct, the defendant must show that the alleged misconduct\ndeprived him of a fair trial.’” [CITATION], ¶ 40, quoting [CITATION], 1998 WL 156865, *3 (Mar. 20, 1998). “‘The defendant must show that, but\nfor the prosecutor’s misconduct, the trier of fact would not have convicted him.’”\n[CITATION] at ¶ 24, quoting [CITATION] at ¶ 33. “‘In making this determination, an appellate\ncourt should consider several factors: (1) the nature of the remarks, (2) whether an\nobjection was made by counsel, (3) whether corrective instructions were given by\nthe court, and (4) the strength of the evidence against the defendant.’” [CITATION], ¶ 46, quoting [CITATION].\n {¶41} Bender takes issue with the prosecutor’s statements regarding the\ninvocation of his Fifth Amendment right against self-incrimination and his pre-\narrest, pre-Miranda silence. “The Fifth Amendment to the Constitution of the\nUnited States provides that no person ‘shall be compelled in any criminal case to be\na witness against himself.’” [CITATION], ¶ 8, quoting the Fifth Amendment to the U.S. Constitution. “This\nAmendment is made applicable to the states through the due process clause of the\nFourteenth Amendment.” Id.\n Case No. 14-23-12\n\n {¶42} “‘The right to remain silent is conferred by the United States and the\nOhio Constitutions.”’ [CITATION] at ¶ 50, quoting [CITATION]. “‘The privilege against self-\nincrimination “is fulfilled only when the person is guaranteed the right ‘to remain\nsilent unless he chooses to speak in the unfettered exercise of his own will.’”’” Id.,\nquoting [CITATION] at ¶ 78, quoting [CITATION], quoting [CITATION], quoting [CITATION]. “This\nrule enforces one of the underlying policies of the Fifth Amendment, which is to\navoid having the jury assume that a defendant’s silence equates with guilt.” [CITATION]\nat ¶ 10.\n {¶43} Here, Bender contends that the prosecutor improperly asserted that\nBender “was not entitled to assert [his Fifth Amendment] privilege, in front of the\njury, stating ‘[Bender] waived [his] Fifth Amendment right’ * * * .” (Appellant’s\nBrief at 12-13, quoting Feb. 7, 2023 Tr., Vol. II, at 194). The State disputes\nBender’s argument and asserts that the prosecutor’s statements were not improper\nbecause Bender’s refusal to answer was not justified.\n {¶44} “‘There is no absolute right to invoke the Fifth Amendment.’” [CITATION], quoting [CITATION]. “The protections against self-incrimination ‘must be confined to instances where\nthe witness has reasonable cause to apprehend danger from a direct answer.’” [CITATION]\n Case No. 14-23-12\n\nv. Arnold, [CITATION], quoting Hoffman v. United States, [CITATION]. Consequently, “‘when a witness asserts a privilege against self-incrimination, a court may not rely upon the witness’s claim alone, but has a duty to determine whether the witness’s refusal to answer is justified.’” State v. Barton, [CITATION], quoting State v. Spangler, [CITATION].\n {¶45} Based on our review of the record, we conclude that Bender’s refusal\nto answer was not justified. Specifically, at trial, Bender testified on direct\nexamination regarding his witness’s—Dean Smith—testimony that Bender\n“coached” his testimony:\n [Bender]: My side of the things * * * is that, when we come to\n consult with * * * our lawyer * * * that we all talk\n separately and we generally had an idea of what\n happened that night. I’ve made statements in the past\n that I am claiming self-defense but I’ve never persuaded\n anybody or told anybody or coached anybody on what\n to say here today.\n [Trial Counsel]: So [Smith] did that on his own?\n [Bender]: Correct.\n [Trial Counsel]: Part of an effort to help you?\n [Bender]: I would assume so.\n [Trial Counsel]: Misguided effort, would you say?\n [Bender]: Most definitely.\n Case No. 14-23-12\n\n(Feb. 7, 2023 Tr., Vol. II, at 179-180). On cross-examination, Bender invoked his\nFifth Amendment privilege against self-incrimination:\n [The Prosecutor]: If I understand your testimony correctly, your friend just\n came in here and lied. Is that right?\n [Bender]: It would appear so, yes.\n [The Prosecutor]: He had lied when he said you told him what to say.\n Right?\n [Bender]: I plead the fifth on that question.\n(Id. at 193-194). Following consultation with his trial counsel, Bender answered\nthe prosecutor’s question:\n [The Prosecutor]: And so, you told him what to say?\n [Bender]: I did not.\n [The Prosecutor]: You did not, so he lied about that?\n [Bender]: Correct.\n [The Prosecutor]: [W]ell, why did you plead the fifth then?\n [Bender]: I was confused on the question and did not know how\n to answer.\n(Id. at 194-195).\n {¶46} Based on our review of Bender’s testimony, we conclude that Bender\ndid not present a basis to invoke his Fifth Amendment privilege against self-\nincrimination. See [CITATION] at ¶ 24. “‘[W]hen a defendant chooses\nto testify in a criminal case, the Fifth Amendment does not allow him to refuse to\n Case No. 14-23-12\n\nanswer related questions on cross-examination.’” [CITATION]. Significantly, “‘[a] defendant “has no right to set forth to the jury all\nthe facts which tend in his favor without laying himself open to a cross-examination\nupon those facts.”’” [CITATION]. Therefore, because Bender’s refusal was\nnot justified, the prosecutor’s cross-examination of Bender was not improper.\n {¶47} Bender further argues that the prosecutor improperly cross-examined\nhim regarding his pre-arrest, pre-Miranda silence. Specifically, Bender contends\nthat the prosecutor improperly “commented on [his] pre-arrest silence to attack the\nself-defense [claim] by inferring that if he had nothing to hide, why didn’t he go to\nthe police, or check in on his friend on a regular basis.” (Appellant’s Brief at 13).\nHere, Bender suggests that he was deprived of a fair trial because the prosecutor’s\ncross-examination of him regarding his pre-arrest, pre-Miranda silence constituted\nsubstantive evidence of his guilt. The State refutes Bender’s argument and contends\nthat the prosecutor’s cross-examination of Bender had “probative value for\nimpeachment, since Bender’s claim of self-defense and claiming to be the victim of\nan attack would usually result in a report of his lawful use of force to the police\nwhen it happened.” (Appellee’s Brief at 19).\n {¶48} Generally, the “[u]se of a defendant’s pre-arrest silence as substantive\nevidence of guilt violates the Fifth Amendment privilege against self-\n Case No. 14-23-12\nincrimination.” [CITATION].\nHowever, “[a] defendant’s pre-arrest, pre-Miranda silence may be introduced for\n\n[SEGMENT 21]\nimpeachment purposes.” [CITATION]. Specifically, when “the\ndefendant has ‘cast aside his cloak of silence,’” the “use of pre-arrest silence as\nimpeachment evidence is permitted because it furthers the truth-seeking process.”\n[CITATION], quoting [CITATION].\n(1980). “Otherwise, a criminal defendant would be provided an opportunity to\nperjure himself at trial, and the state would be powerless to correct the record.” Id.\nLikewise, “the use of a defendant’s pre-arrest, pre-Miranda silence as substantive\nevidence of guilt does not violate the Fifth Amendment privilege against self-\nincrimination if the defendant fails to expressly invoke the privilege.” [CITATION].\n {¶49} Importantly, “the Constitution does not prohibit references to a\ndefendant’s invocation of the right to remain silent as a ‘fair response’ to a\ndefendant’s claims.” [CITATION], quoting [CITATION].\n864 (1988). See also [CITATION] (“‘The United States Supreme Court has held that the Fifth Amendment\ndoes not prohibit references to a defendant’s invocation of the right against self-\nincrimination when the references are made in “fair response” to the defense’s\n\n====== End of Part ====== Case No. 14-23-12\n\nclaims.’”), quoting [CITATION]. “A fair response is warranted in such\ncircumstances because ‘“the protective shield of the Fifth amendment”’ should not\nbecome ‘“a sword that cuts back on the area of legitimate comment by the\nprosecutor on the weaknesses in the defense case.”’” [CITATION].\n {¶50} The prosecutor’s cross-examination of Bender regarding his pre-\narrest, pre-Miranda silence was not improper. Critically, the State’s cross-\nexamination of Bender amounts to impeachment evidence, which did not violate\nBender’s right to remain silent. Accord [CITATION]. That is, the prosecutor’s\ncross-examination of Bender regarding his pre-arrest, pre-Miranda silence was a\nfair response to Bender’s self-defense claim. See [CITATION].\nSee also [CITATION].\n {¶51} Therefore, since the prosecutor did not improperly address Bender’s\ninvocation of his Fifth Amendment privilege against self-incrimination or his pre-\narrest, pre-Miranda silence, Bender’s substantial rights were not prejudiced and he\n\n====== End of Part of a Court Ruling ====== Case No. 14-23-12\n\nwas not deprived of a fair trial. For these reasons, we conclude that the trial court\ndid not abuse its discretion by denying Bender’s motion for a mistrial.\n {¶52} Bender’s second assignment of error is overruled.\n Third Assignment of Error\n The Trial Court Erred When It Failed To Give A Jury Instruction\n On Aggravated Assault.\n Fourth Assignment of Error\n The Trial Court Erred When It Gave An Improper Instruction\n On Self-Defense.\n Fifth Assignment of Error\n The Trial Court Erred When It Failed To Send Verdict Forms To\n The Jury As To The Issue Of Self-Defense.\n {¶53} In his third, fourth, and fifth assignments of error, Bender challenges\nthe trial court’s jury instructions and verdict forms. In particular, in his third\nassignment of error, Bender argues that the trial court erred by failing to instruct the\njury on the inferior-degree offense of aggravated assault. Bender specifically argues\nin his fourth assignment of error that the trial court erroneously instructed the jury\nregarding self-defense. Finally, in his fifth assignment of error, Bender argues that\nthe trial court erred by providing the jury with improper verdict forms.\n Standard of Review\n {¶54} “A trial court’s decision to give a jury instruction is within its\ndiscretion, and we will not reverse such a decision absent an abuse of that\n Case No. 14-23-12\n\ndiscretion.” [CITATION]\nAgain, an abuse of discretion implies that the trial court acted unreasonably,\narbitrarily, or unconscionably. [CITATION]\n Analysis\n {¶55} “While a trial court has broad discretion to determine how it will\ninstruct a jury, the court has a duty to ‘fully and completely give the jury all\ninstructions which are relevant and necessary for the jury to weigh the evidence and\ndischarge its duty as the fact finder.’” [CITATION], quoting [CITATION] “Requested jury instructions should ordinarily be given if they are\ncorrect statements of law, if they are applicable to the facts in the case, and if\nreasonable minds might reach the conclusion sought by the requested instruction.”\n[CITATION]\n Aggravated Assault Instruction\n {¶56} In his third assignment of error, Bender contends that the trial court\nerred by failing to instruct the jury on the inferior-degree offense of aggravated\nassault. “[A] trial court may refuse to issue a requested jury instruction if ‘“the\nevidence adduced at trial is legally insufficient” to support it.’” [CITATION], quoting [CITATION] quoting [CITATION]. See also [CITATION]\n\n====== End of Example ====== Case No. 14-23-12\n\ndecision whether to give a requested instruction, the appropriate inquiry is whether\nsufficient evidence has been presented to support the instruction.”). “[T]he trial\njudge is in the best position to gauge the evidence before the jury and is provided\nthe discretion to determine whether the evidence adduced at trial was sufficient to\nrequire an instruction.” [CITATION]\n {¶57} “Aggravated assault is an offense of an inferior degree of felonious\nassault.” [CITATION] “An instruction on aggravated assault is appropriate when the evidence supports a\nconviction for felonious assault, but the assault resulted from serious provocation\nby the victim.” [CITATION]\n¶ 8. That is, “[i]n a trial for felonious assault, where the defendant presents sufficient\nevidence of serious provocation, such that a jury could both reasonably acquit [the]\ndefendant of felonious assault and convict [the] defendant of aggravated assault, an\ninstruction on aggravated assault, as an inferior degree of felonious assault, must be\ngiven.” (Emphasis sic.) [CITATION]\n {¶58} “‘Provocation, to be serious, must be reasonably sufficient to bring on\nextreme stress and the provocation must be reasonably sufficient to incite or arouse\nthe defendant into using deadly force.’” Id. at ¶ 26, quoting [CITATION] “‘In determining whether\nthe provocation was reasonably sufficient to incite the defendant into using deadly\n Case No. 14-23-12\n\nforce, the court must consider the emotional and mental state of the defendant and\nthe conditions and circumstances that surrounded him at the time.’” Id., quoting\n[CITATION] at paragraph five of the syllabus.\n {¶59} “Ohio courts considering what constitutes sufficient ‘serious\nprovocation’ have found that past incidents or verbal threats are not sufficient;\nwords are not sufficient; and a victim’s simple pushing or punching the defendant\nis not sufficient.” [CITATION] No. L-22-1166, 2023-Ohio-\n3543, ¶ 53. Similarly, “[r]egarding the emotional state necessary to constitute\nsudden passion or a sudden fit of rage, Ohio courts have found that confusion or\nfear alone is not sufficient.” Id. at ¶ 54. Indeed, “where a defendant testifies that\nhe was merely afraid and no evidence exists that he actually acted under a sudden\nfit of passion or rage, a court does not abuse its discretion by refusing to provide an\ninstruction on aggravated assault.” [CITATION] at ¶ 36.\n {¶60} On appeal, Bender argues that he presented sufficient evidence that he\nacted under serious provocation. In response, the State expostulates that\n“[a]ggravated assault is generally incompatible with a theory of self-defense\nbecause self-defense requires proof of fear while aggravated assault requires a\nshowing of a sudden passion or rage.” (Appellee’s Brief at 20). In the alternative,\nthe State asserts that Bender did not present any evidence that he “acted ‘in a sudden\nfit of rage.’” (Id. at 21). Instead, the State proclaims that Bender “unequivocally\ntestified that he stabbed [B.H.] out of a fear for his safety.” (Id.).\n Case No. 14-23-12\n\n {¶61} “This Court has stated that a defendant who asserts self-defense “‘is\nnot entitled under Ohio law to instructions on self-defense and on lesser included\noffenses [or inferior degree offenses], but must choose between the two.”’” [CITATION], quoting [CITATION], quoting [CITATION]. Our sister courts of\nappeal have agreed that “[i]n most cases, an aggravated assault instruction is\nincompatible with an instruction on self-defense, so that both cannot be given\ntogether.” [CITATION]. See also [CITATION] (“Generally, an instruction on aggravated assault is incompatible with an instruction\non self-defense, such that both cannot be given together, because the legal theories\nunderpinning each offense are incompatible (aggravated assault—rage; self-\ndefense—fear).”).\n {¶62} However, some courts have diverged and resolved that “‘[w]here there\nis sufficient evidence on the issues of self-defense and aggravated assault, the court\n\n[SEGMENT 22]\nmust charge the jury on both, when so requested.’” [CITATION], quoting [CITATION]. See also [CITATION]. “For instance, an aggravated assault instruction could be given in a self-\n Case No. 14-23-12\n\ndefense case where a defendant exceeded the amount of force necessary for his\ndefense, out of passion or rage.” [CITATION] at ¶ 26.\n {¶63} Nevertheless, we need not resolve such disaccord in this case because\nBender did not present sufficient evidence that he acted under “sudden passion or a\nfit of rage” as contemplated by the aggravated-assault statute. Decisively, the theory\nof Bender’s case was that he stabbed B.H. nine times out of fear. Indeed, Bender\ntestified that he found himself on the ground with B.H. “on top of [him] attacking\n[him] at which point [B.H.] took the mid section of his forearm and placed it on\n[Bender’s] throat and [he] could no longer breathe.” (Feb. 7, 2023 Tr., Vol. II, at\n166). Bender testified that “[a]t that point in time, [he] didn’t know if he was going\nto stop. [He] could not get him off of [him]. [He] could not get his body weight off\nof [him], so [he] reacted accordingly until [he] felt the pressure come off [his] neck.”\n(Id. at 172). That is, he testified that he “pulled out [his] knife and [he] stabbed him\nin the back, in the lower buttocks and the thigh until he stopped and [Bender]\ndeemed him no longer a threat.” (Id.).\n {¶64} Critically, Bender testified that “[i]t was at that time that [he] could no\nlonger breathe that [he] feared that [his] life was in danger and [he] reacted\naccordingly.” (Emphasis added.) (Id. at 166-167). Specifically, Bender testified\nthat he stabbed him “[t]o get him to stop” because he “felt that [his] life was in\ndanger” and he “wanted to neutralize the threat.” (Id. at 173). In sum, Bender\ntestified that “[t]he moment that [he] felt the pressure come off [his] neck and [he]\n Case No. 14-23-12\n\ncould once again breathe is the * * * moment that [he] stopped stabbing him * * *\n.” (Id. at 167).\n {¶65} Based on the foregoing, we conclude that Bender presented evidence\nthat he acted out of fear and not out of sudden passion or a fit of rage. See [CITATION]. That is, Bender\ndid not present reasonably sufficient evidence that the circumstances incited him to\nuse deadly force to repel the attack. As a result, Bender did not present sufficient\nevidence of serious provocation. Compare [CITATION].\nConsequently, the trial court did not abuse its discretion by failing to instruct the\njury on the inferior-degree offense of aggravated assault.\n Self-Defense Instruction\n {¶66} In his fourth assignment of error, Bender argues that the trial court\nerred by instructing the jury that he had a duty to retreat in contravention of Ohio’s\n“stand your ground” law under R.C. 2901.09. “The amended ‘stand your ground’\nlaw in Ohio now provides that ‘a person has no duty to retreat before using self-\ndefense * * * if that person is in a place in which the person lawfully has a right to\nbe.’” [CITATION], quoting R.C. 2901.09(B), and citing [CITATION]. The statute further provides that “[a] trier of fact\nshall not consider the possibility of retreat as a factor in determining whether or not\na person who used force in self-defense * * * believed that the force was necessary\n\n====== End of Court Ruling ====== Case No. 14-23-12\n\nto prevent injury, loss, or risk to life or safety.” R.C. 2901.09(C). “‘Simply put, the\nnew “stand your ground’ law removes, in most cases, the duty to retreat before using\nself-defense.’” Warnock at ¶ 46, quoting [CITATION]. But see [CITATION] (cautioning that “R.C. 2901.09(C) is not an\nabsolute prohibition on introducing evidence involving the possibility of retreat.\nRather, the statute only prohibits fact finders from considering evidence involving\nthe possibility of retreat to determine whether the defendant’s belief that force was\nnecessary was reasonable. Fact finders may, however, consider retreat evidence to\ndetermine who was at fault in creating the situation leading to the affray”).\n {¶67} In this case, the trial court instructed the jury, in relevant part, that\n [i]n determining whether the Defendant, in using force in self-defense\n reasonably believed that the force was necessary to prevent injury,\n loss, or risk to life or safety, you may not consider the possibility of\n retreat by the Defendant. The Defendant had no duty to retreat before\n using force in self-defense if the Defendant was in a place in which\n he lawfully had a right to be.\n(Feb. 8, 2023 Tr. at 70).\n {¶68} “Whether the jury instructions correctly state the law is a question that\nis reviewed de novo.” [CITATION]. “De novo review is independent, without deference to the lower court’s decision.”\n[CITATION].\n Case No. 14-23-12\n\n {¶69} Based on our review of the trial court’s jury instruction, we conclude\nthat the trial court’s jury instruction is a correct statement of law. Compare [CITATION]\nat ¶ 48 (concluding that the trial court’s self-defense jury instruction conformed with\nOhio’s “stand your ground” law). Indeed, the trial court’s jury instruction plainly\nstates the appropriate duty-to-retreat standard as codified in R.C. 2901.09.\nConsequently, the trial court’s self-defense jury instruction is not unreasonable,\narbitrary, or unconscionable.\n Verdict Forms\n {¶70} In his fifth assignment of error, Bender argues that the trial court erred\nby failing to give the jury a separate verdict form regarding his self-defense claim.\nSpecifically, Bender asserts that the trial court should have provided the jury with\nverdict forms requiring the jury to assess whether the State met its burden of proving\nthat he did not act in self-defense.\n {¶71} Importantly, Bender did not object to the verdict forms at trial.\nConsequently, Bender has forfeited all but plain error on appeal. Accord [CITATION], ¶ 11. Under Crim.R. 52(B), “plain\nerrors or defects affecting substantial rights may be noticed although they were not\nbrought to the attention of the court.” “We recognize plain error with the utmost\ncaution, under exceptional circumstances, and only to prevent a manifest\nmiscarriage of justice.” [CITATION], ¶ 69. “‘For plain error to apply, the trial court must have deviated from a\n Case No. 14-23-12\n\nlegal rule, the error must have been an obvious defect in the proceeding, and the\nerror must have affected a substantial right.’” Id., quoting [CITATION]. “‘Under the plain error standard, the\nappellant must demonstrate that the outcome of his trial would clearly have been\ndifferent but for the trial court’s errors.’” Id., quoting [CITATION] at ¶ 34.\n {¶72} When reviewing a trial court’s jury instructions under the plain-error\nstandard, “‘an appellate court must review the [jury] instructions as a whole and the\nentire record to determine whether a manifest miscarriage of justice has occurred as\na result of the error in the instructions.’” [CITATION], quoting [CITATION], ¶ 38, quoting [CITATION], ¶ 137. “An improper or erroneous jury instruction does\nnot constitute plain error unless, but for the error, the outcome of the trial would\nclearly have been different.” Id. Consequently, Bender is required to “demonstrate\nthat his convictions clearly would have been different had the trial court instructed\nthe jury on self-defense either before or after the elements of each offense and on\nthe requirement of unanimity.” Id.\n {¶73} On appeal, Bender contends that the trial court erred by “not send[ing]\nverdict forms back on the issue of self-defense, as the proper order is for the jury to\ndetermine if the State met its burden beyond a reasonable doubt self-defense [sic]\nand that must be a unanimous decision.” (Appellant’s Brief at 17). That is, Bender\nargues that\n Case No. 14-23-12\n\n [t]he only way for [him] to know that each member of the jury\n thoughtfully considered the issue of self-defense and whether the\n State met its burden of beyond a reasonable doubt is for each member\n of the jury to sign a verdict form that either the State did or did not\n prove beyond a reasonable doubt that Mr. Bender did not act in self-\n defense.\n(Id.).\n {¶74} We disagree with Bender’s proposition and join our sister appellate\ndistricts in the conclusion that “[t]here is no requirement for a separate finding in\n\n[SEGMENT 23]\ntrials with claims of self-defense.” [CITATION]. Accord [CITATION]. See also [CITATION]. Therefore, the absence of a separate verdict form regarding\nBender’s self-defense claim was not error, let alone plain error. Accord Smith at ¶\n48.\n {¶75} For these reasons, Bender’s third, fourth, and fifth assignments of error\nare overruled.\n Seventh Assignment of Error\n The Trial Court Erred When It Sentenced Appellant To An\n Indefinite Sentence: Reagan Tokes.\n {¶76} In his seventh assignment of error, Bender argues that his sentence,\nimposed under Ohio’s current sentencing scheme (commonly known as the “Reagan\nTokes Law”), is unconstitutional.\n Case No. 14-23-12\n\n Standard of Review\n {¶77} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence\n“only if it determines by clear and convincing evidence that the record does not\nsupport the trial court’s findings under relevant statutes or that the sentence is\notherwise contrary to law.” [CITATION], ¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the\ntrier of facts a firm belief or conviction as to the facts sought to be established.’” Id.\nat ¶ 22, quoting [CITATION], paragraph three of the\nsyllabus.\n Analysis\n {¶78} In this case, Bender challenges the constitutionality of the Reagan\nTokes Law—namely, Bender alleges that the Reagan Tokes Law violates his\nconstitutional right to a trial by jury in addition to violating the separation-of-powers\ndoctrine and due-process clause of the Ohio and United States Constitutions.\nImperatively, not only has this court rejected similar facial- and as-applied-\nconstitutional challenges to the Reagan Tokes Law, but the Supreme Court of Ohio\nrecently endorsed the constitutionality of the Reagan Tokes Law. Accord [CITATION], ¶ 41. We decline to diverge from such\nformidable precedent. Accordingly, Bender’s sentence is not contrary to law.\n {¶79} Bender’s seventh assignment of error is overruled.\n Case No. 14-23-12\n\n {¶80} Having found no error prejudicial to the appellant herein in the\nparticulars assigned and argued, we affirm the judgment of the trial court.\n Judgment Affirmed\nWILLAMOWSKI, P.J. and MILLER, J., concur.\n/hls\n\n====== End of Part of a Court Ruling ====== \n[CITATION]\n\n\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n STATE OF OHIO, : APPEAL NO. C-230457\n TRIAL NO. B-2203537-A\n Plaintiff-Appellee, :\n :\n VS.\n :\n ANASIA SHINHOLSTER, :\n Defendant-Appellant. :\n\n\n STATE OF OHIO, : APPEAL NO. C-230436\n TRIAL NO. B-2203537-B\n Plaintiff-Appellee, :\n :\n vs.\n :\n O P I N I O N.\n SAKARIA WILLIAMS, :\n Defendant-Appellant. :\n\nCriminal Appeals From: Hamilton County Court of Common Pleas\nJudgments Appealed From Are: Affirmed in C-230457; Affirmed in Part, Sentences\nVacated, and Cause Remanded in C-230436\nDate of Judgment Entry on Appeal: April 26, 2024 OHIO FIRST DISTRICT COURT OF APPEALS\n\nMelissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,\nAssistant Prosecuting Attorney, for Plaintiff-Appellee,\nLaw Office of Arica L. Underwood LLC and Arica L. Underwood, for Defendant-\nAppellant Anasia Shinholster,\nTimothy J. McKenna, for Defendant-Appellant Sakaria Williams.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nBERGERON, Judge.\n {¶1} A takeout order placed by restaurant regulars that took too long sparked\na request for a refund that led to a physical altercation, culminating in three shots fired\nand a gunshot wound. Following the incident, codefendants-appellants Anasia\nShinholster and Sakaria Williams (together, “Defendants”) were tried jointly, and both\nwomen were convicted of two counts of felonious assault and sentenced to five-to-six\nyears in prison.\n {¶2} We sua sponte consolidate their two separate appeals into a single\nopinion and judgment because Defendants raise overlapping self-defense arguments,\nchallenging their convictions for felonious assault on manifest weight grounds. Ms.\nShinholster separately raises concerns about a clerical error in the judicial entry\ndenying her Crim.R. 29 motion for a judgment of acquittal. And Ms. Williams argues\nthat the trial court failed to merge allied offenses of similar import and that the state\nfailed to establish the “aiding and abetting” element of felonious assault. After\nreviewing the record and the trial court’s decision, we vacate Ms. Williams’s sentences\nand remand her case (C-230436) for resentencing. In all other respects, we affirm\nboth judgments of the trial court.\n I.\n {¶3} In July 2022, Ms. Shinholster arrived at a restaurant that she regularly\nfrequented to pick up food that she and Ms. Williams had ordered. Because the order\nwas not yet ready, she had to wait for the food. Sometimes, when that happened, the\nrestaurant would offer a free soft drink for their troubles of having to wait longer than\nexpected. Accordingly, she requested a drink, but the restaurant was out of her\npreferred beverage and one of the restaurant’s owners, Jason Williams, declined her\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nback-up request because the alternative drink she wanted was more expensive. Ms.\nShinholster was on the phone with Ms. Williams throughout this encounter, with her\nannoyance growing by the minute.\n {¶4} As Ms. Shinholster left with the order, she announced to Ms. Williams\nthat she would no longer support the restaurant. Jason overheard this edict.[CITATION]\nTestimony and evidence presented at trial established that Ms. Williams and Jason\nlater exchanged phone calls, adding fuel to the simmering feud. The content of these\nphone calls, however, is disputed. According to Jason, although the calls grew heated\nat moments, no one said anything outrageous, and he eventually apologized. But Ms.\nShinholster testified that during the last call (the only call to which she was a party),\nJason was irate and disrespectful, hurling profanities at them.\n {¶5} Following the phone calls, Defendants determined that they wanted a\nrefund for their order. Together, they decided that Ms. Williams would enter the\nrestaurant because the owners would be less familiar with her. Ms. Shinholster\nremained in the car with Ms. Williams on speaker phone, so she could hear what\ntranspired inside the restaurant. Both women carried a gun, consistent with their\nnormal practice, although Ms. Shinholster testified that she did not know whether Ms.\nWilliams was armed that night.\n {¶6} As Jason and his co-owner and wife, Peta Duffus, began to prepare to\nclose their restaurant for the evening, Ms. Williams entered the restaurant, demanding\na refund for her order. She claimed that she did not know what was in the order\nbecause her mother had placed it. There is conflicting testimony regarding where\nJason was when the encounter began. Ms. Shinholster testified that she first heard\n1 Because Sakaria Williams and Jason Williams share a last name, we refer to Jason Williams as\n“Jason” throughout the opinion to avoid any confusion.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nMs. Williams having a cordial conversation with Jason. But Jason testified that he was\nin the back cleaning when Ms. Williams entered the restaurant and did not come to\nthe front of the restaurant until he heard loud talking and the mention of a gun. And\nMs. Duffus similarly testified that she was the first one to interact with Ms. Williams\nwhile Jason worked in the back.\n {¶7} Regardless, it is undisputed that some time at or near the beginning of\nthe encounter, Ms. Duffus began arguing with Ms. Williams, prompting Ms.\nShinholster to enter the restaurant and Jason to call 911 as he advanced towards the\nfront of the restaurant. According to Ms. Duffus, when Ms. Williams entered the\nrestaurant, she flashed her gun. As evidenced by video footage, Ms. Williams walked\nbehind the counter into the employees-only kitchen area. And Ms. Shinholster stood\nin the doorway to the employees-only area to prevent the door from closing. The\nowners did not invite Defendants into this area, and Ms. Duffus instructed them to\nleave the business multiple times during this portion of the encounter. Ms.\nShinholster testified that they refused to leave because they were waiting for the police\nto show up to enable them to procure their refund.\n {¶8} At some point during this time, Ms. Duffus picked up a knife, but she\nquickly put it down, and never came within an arm’s length of the women while\nholding the knife. Nor did anyone touch the knife again during the encounter.\n\n[SEGMENT 24]\nThroughout this portion of video evidence admitted at trial, Ms. Duffus indicates that\nthe women have a gun. And Ms. Shinholster informs the 911 operator that she had her\nconcealed carry permit.\n {¶9} Conflicting testimony exists as to how the physical altercation between\nMs. Williams and Ms. Duffus began. Ms. Duffus testified that she tried to grab the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nfood bag from Ms. Williams to see what was in it, and Ms. Williams punched her, spit\nin her face, and turned around, and in response, Ms. Duffus grabbed her. Jason\nexplained that he saw Ms. Duffus chase the women into the lobby and a physical\naltercation ensued. And Ms. Shinholster asserted that Ms. Duffus started pushing and\nshoving Ms. Williams out of the employees-only area with a dustpan, and Ms. Williams\nwent to leave, but then Ms. Duffus “attacked” her, punching her and pulling her hair.\nMs. Shinholster insisted that Ms. Williams did not spit at anyone or touch anyone until\nshe needed to defend herself. Once the physical altercation began, it is undisputed\nthat Ms. Duffus held Ms. Williams pinned on the ground, as the two women continued\nto tussle. Ms. Duffus testified that, at some point during this altercation, she removed\nMs. Williams’s gun from her bag and slid it under the bulletproof glass at the counter,\ninto the cash register area (presumably to ensure that no one would use it).\n {¶10} Ms. Shinholster intervened to assist Ms. Williams, prompting Jason to\nattempt to remove her from the restaurant. He and Ms. Shinholster engaged in a\nphysical altercation at the door of the restaurant as he sought to shove her out of the\nrestaurant, while she fought to remain inside (and later regain entry). During this\ntime, Ms. Duffus still had Ms. Williams pinned on the ground. Ms. Williams continued\nto call for help, eventually encouraging her companion to “shoot the bitch.”\n {¶11} Believing that he locked Ms. Shinholster out of the restaurant, Jason\nturned to address the encounter between the two women rolling around on the floor.\nHowever, Ms. Shinholster regained entry and fired three shots at him. In her\nrecounting of the story, she asserts that he reached into Ms. William’s purse and pulled\nout “what looked like to me resembled like a hammer like object” and moved towards\nher when she decided to fire three shots in self-defense.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n {¶12} After the shots were fired, Ms. Shinholster grabbed Ms. Williams, exited\nfrom the restaurant, called the police, and waited by their car for police to arrive. A\ndetective arrived and interviewed, and then arrested, both women. Upon their arrival\nat the Justice Center, officers denied them entry because of their injuries, so they first\nwent for treatment at a hospital before landing in jail. Ms. Shinholster testified that\nshe is recovering from a concussion that occurred during the melee, and that she also\nsuffered a scraped knee and bruised arms. And she testified that the photo evidence\nof Ms. Williams (which showed a large bump on her head) accurately portrayed how\nshe looked following the incident. Jason required surgery for his injury and suffers\nongoing pain from his gunshot wound.\n {¶13} Both Defendants were charged with two counts of felonious assault,\nfelonies of the second degree, in violation of R.C. 2903.11(A)(1) and (2), with firearm\nspecifications. Both women waived their rights to a jury trial. At trial, Ms. Duffus,\nJason, Detective Carl Blackwell, and Ms. Shinholster testified (notably, Ms. Williams\ndid not testify). The defense and prosecution also tendered exhibits, including 911\ncalls, cellphone footage, and various photographs. Ultimately, the trial court found\nDefendants each guilty of both counts and sentenced them to the mandatory minimum\nof two-to-three years on count 1, plus three years on the firearm specification, and\ncount 2 running concurrently to count 1, for five-to-six-year indeterminate sentences.\n II.\n {¶14} On appeal, Ms. Shinholster and Ms. Williams each raise three\nassignments of error, with overlapping self-defense arguments. We first address their\nself-defense arguments. We then proceed to analyze each defendant’s remaining\nassignments of error.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n A.\n {¶15} In Ms. Shinholster’s first and second assignments of error and Ms.\nWilliams’s third assignment of error, Defendants challenge their convictions for\nfelonious assault as against the manifest weight of the evidence, maintaining that the\nstate failed to prove beyond a reasonable doubt that they were not acting in self-\ndefense. Ms. Williams also raises a sufficiency challenge to the self-defense claim.\nBut, based on the recent change in the law regarding self-defense claims, the\nsufficiency of the evidence standard applies to the defendant’s burden of production,\nwhereas a manifest weight of the evidence standard applies to the state’s burden of\npersuasion. See [CITATION]. Thus, “[t]he Ohio Supreme Court has held that a self-defense claim is not\nan element of the offense that must be proven by the state and, therefore, it is not\nsubject to review for sufficiency of the evidence.” [CITATION], citing [CITATION]. Consequently, we\nonly evaluate Defendants’ convictions through a manifest weight lens.\n {¶16} When a defendant raises a self-defense claim, once evidence is\npresented that tends to support that their use of force was in self-defense or in defense\nof another, “ ‘ “the burden of persuasion requires the state to disprove at least one of\nthe elements of self-defense * * * beyond a reasonable doubt.” ’ ” (Emphasis added.)\n[CITATION]. “Unlike the burden\nof production, which concerns a party’s duty to introduce enough evidence on an issue,\nthe burden of persuasion represents a party’s duty to convince the factfinder to view\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nthe facts in a favorable manner to them.” (Emphasis sic.) [CITATION] at ¶ 15, citing\n[CITATION] at ¶ 17.\n {¶17} We will not reverse a conviction unless “the evidence weighs heavily\nagainst [it].” Id. And we will not “second-guess the factfinder’s adjudication of\nconflicting evidence” except under “the most exceptional circumstances.” Id. Thus,\nwhen reviewing a manifest weight challenge involving self-defense, we must\ndetermine if “the factfinder disregarded or overlooked compelling evidence that\nweighed against conviction.” [CITATION] at ¶ 8, citing [CITATION].\n {¶18} Defendants insist that the state failed to prove beyond a reasonable\ndoubt that they did not act in defense of themselves or of another. Self-defense and\ndefense of another are affirmative defenses that legally excuse otherwise unlawful\nconduct. See [CITATION] at ¶ 21 (“The plain language of R.C. 2901.05(A) reflects that self-defense is still an\naffirmative defense.”).\n {¶19} Here, the facts that both Defendants were injured during the\naltercation and that they claimed that the restaurant owners started the brawl tend to\nsupport the conclusion that they acted in self-defense. Therefore, the burden shifted\nto the state to disprove one or more of the elements of self-defense in the use of deadly\nforce: “(1) the defendant[s] [were] not at fault in creating the situation giving rise to\nthe affray; (2) the defendant[s] had a bona fide belief that [they were] in imminent\ndanger of death or great bodily harm and that [their] only means of escape from such\na danger was in the use of such force; [or] (3) the defendant[s] did not violate any duty\nto retreat or avoid the danger.” [CITATION], 1st Dist. Hamilton No. C-190507, 2020-Ohio-\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n4976, at ¶ 48, citing [CITATION].\nThe state must only disprove one element beyond a reasonable doubt to defeat the\nself-defense claim. See [CITATION], ¶ 9, citing [CITATION], at ¶ 10.\n {¶20} Under the first element of a self-defense claim, the state presented\nevidence establishing that Defendants were at fault in creating the situation giving rise\nto the affray. For the purposes of self-defense, “the first aggressor in an incident is ‘at\nfault.’ ” [CITATION], ¶ 30, quoting [CITATION], ¶ 9, citing [CITATION], ¶ 23.\nDefendants argue (and Ms. Shinholster testified) that they were not at fault in creating\nthe situation leading to the shooting because Jason attacked Ms. Shinholster, and Ms.\nDuffus attacked Ms. Williams. But Ms. Duffus testified that Ms. Williams spit on her\nand threw the first punch. Similarly, Jason testified that he did not get physically\ninvolved with Ms. Shinholster until she engaged in the altercation between the other\ntwo women. Ms. Williams also claims that she was not at fault in creating the situation\nbecause at one point she put up her hood and turned to leave before Ms. Duffus\nlaunched an attack at her. She did not testify at trial, so the only evidence supporting\n\n[SEGMENT 25]\nthis claim comes from the testimony of Ms. Shinholster indicating that they were going\nto leave at this point. But elsewhere during her testimony, Ms. Shinholster\nacknowledged that they refused to leave and were waiting for the police to show up.\n {¶21} Moreover, the state demonstrated under the second element that\nDefendants were not in imminent danger of death or great bodily harm at the time Ms.\nShinholster fired shots at Jason. Both Ms. Shinholster and Ms. Williams arrived for a\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nrefund with guns. At trial, Ms. Shinholster testified that she “fear[ed] for her life” and\nthat “[i]f [she] didn’t fire that either Ms. Williams and I would have died that night.”\nShe also maintained that she “knew Ms. Williams could not breathe because of the\nposition she was in.” Yet testimony and evidence presented at trial demonstrate that\nMs. Williams was loudly and continuously yelling for help throughout the encounter\n(not to mention exhorting her companion to shoot), demonstrating her ability to\nbreathe. And while Ms. Shinholster testified that Jason was coming at her when she\nfired her gun, he testified that he thought he locked her out and had turned back to\naddress the altercation between Ms. Duffus and Ms. Williams at the time the shots\nwere fired.\n {¶22} Furthermore, the state established that Defendants had a duty to\nretreat before using force in self-defense. Under the most recent amendments to R.C.\n2901.09(B), a person does not have a duty to retreat before using force in self-defense\nif that person is in a place where they lawfully have a right to be. [CITATION], at ¶ 17. While Ms. Shinholster and Ms. Williams were lawfully\nable to enter the restaurant, by the time of the shooting, they were trespassers (and\nthus, were not in a place where they lawfully had a right to be). Testimony, video\nevidence, and the 911 call recordings establish that Ms. Williams entered the\nemployees-only area of the restaurant without permission. And the restaurant owners\nrepeatedly instructed Defendants to leave the restaurant before the physical\naltercation began. During the recording of her 911 call, Ms. Shinholster responded to\nMs. Duffus’s instruction to leave: “No, we ain’t going nowhere.”\n {¶23} Self-defense claims are often rife with issues of credibility. And here,\nthe state and Defendants largely presented two different versions of the events leading\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nup to the shooting. But when there is conflicting evidence presented at trial, we will\nnot find that a conviction is against the manifest weight of the evidence where a trier\nof fact reasonably weighed the conflicting evidence. See, e.g., [CITATION]. On this record, we cannot\nconclude that the trial court clearly lost its way or created a manifest miscarriage of\njustice in determining that the state proved beyond a reasonable doubt that\nDefendants did not act in self-defense. Although some evidence weighs in favor of the\nself-defense claims, the weight of the evidence points in the other direction. Therefore,\nwe overrule Ms. Shinholster’s first and second assignments of error and Ms. Williams’s\nthird assignment of error.\n B.\n {¶24} Turning to Ms. Shinholster’s remaining assignment of error, she\nmaintains the trial court erred by denying her Crim.R. 29 motion for a judgment of\nacquittal as to “counts 1 and 2” when she was the named defendant in the third and\nfourth counts of the indictment. Specifically, in light of this error, she claims that this\ncourt should vacate her conviction.\n {¶25} Defendants were convicted of parallel counts of felonious assault:\ncounts 1 and 2 against Ms. Williams and counts 3 and 4 against Ms. Shinholster. At\nthe conclusion of the presentation of evidence at trial, both defendants moved for a\njudgment of acquittal pursuant to Crim.R. 29, which the trial court immediately\ndenied. Two days later, the trial court journalized its denial of the Crim.R. 29 motion\nin two entries, one for each defendant. The entries for both defendants listed counts 1\nand 2. But the entry regarding Ms. Shinholster should have listed counts 3 and 4 as\nthose were the charges against her. Of note, however, the entry reflected the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nappropriate offenses (both felonious assault). The court never corrected its error, but\nit later docketed an entry finding Ms. Shinholster guilty of the correct counts.\n {¶26} A clerical error is “ ‘a mistake or omission, mechanical in nature and\napparent on the record, which does not involve a legal decision or judgment.’ ” [CITATION],\nquoting [CITATION].\n {¶27} Ms. Shinholster acknowledges that the error was clerical. And the court\norally denied her Crim.R. 29 motion during trial. Further, the court later docketed an\nentry finding her guilty of the correct counts. While Ms. Shinholster argues her\nconviction should be vacated, we see no basis for vacating the conviction for what\nappears to be a scrivener’s error that did not affect her substantial rights. Nor does\nshe explain how she suffered any prejudice from this clerical error. Without any such\nargument, we see no utility in a remand to correct the error given that the ultimate\njudgment was correct.\n {¶28} In light of the foregoing analysis, we overrule Ms. Shinholster’s second\nassignment of error.\n C.\n {¶29} Finally, we consider Ms. Williams’s remaining arguments. In her first\nassignment of error, she asserts that the trial court failed to merge the felonious\nassaults in counts 1 and 2 when they were the same offenses against the same victim\nand were part of the same immediate and continuing course of conduct. Rather than\nordering Ms. Williams to serve count 2 concurrently, she argues that the court should\nhave merged the two counts. This court reviews R.C. 2941.25 merger determinations\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nde novo. [CITATION], ¶ 28.\n {¶30} The Ohio Supreme Court has repeatedly found convictions under these\nsections of R.C. 2903.11 “are allied offenses of similar import * * * when both are\ncommitted with the same animus against the same victim.” [CITATION], ¶ 1; see [CITATION], ¶ 1. While a defendant who commits allied\noffenses of similar import may be tried for both offenses, they may “only be sentenced\nfor one offense.” [CITATION], ¶ 5.\n {¶31} Here, Ms. Williams was charged with and convicted of felonious assault\nunder both R.C. 2903.11 (A)(1) and (A)(2), which respectively address the infliction of\nserious physical harm and the use of a deadly weapon to cause or attempt to cause\nphysical harm. Both charges result from her encouraging Ms. Shinholster to shoot and\nthe resulting injury caused to Jason. The trial court sentenced her on both counts\nconcurrently. But because the offenses were allied offenses of similar import, the court\nshould have merged the counts at sentencing. Underscoring the point, the state\nconcedes this error. Therefore, we sustain Ms. Williams’s first assignment of error.\n {¶32} In her second assignment of error, Ms. Williams claims that her\nconviction for felonious assault was against the manifest weight of the evidence and\nwas not supported by sufficient evidence because the state failed to establish the\nrequired elements of the offense. Specifically, she contests the “aiding and abetting”\nelement of R.C. 2923.03(A)(2), arguing that she did not act in concert with Ms.\nShinholster (who indisputably fired the shots) to commit felonious assault.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n {¶33} When reviewing a sufficiency challenge, this court asks “ ‘ “whether,\nafter viewing the evidence in a light most favorable to the prosecution, any rational\ntrier of fact could have found the essential elements of the crime proven beyond a\nreasonable doubt.” ’ ” [CITATION], quoting [CITATION], quoting [CITATION] (1991), paragraph two of the syllabus. “ ‘ “[W]here reasonable minds can reach\ndifferent conclusions upon conflicting evidence, determination as to what occurred is\na question for the trier of fact.’ ” ” (Emphasis deleted.) Id., quoting [CITATION], quoting [CITATION] at 279.\n {¶34} This court sits as the “thirteenth juror” when reviewing whether a\nconviction runs counter to the manifest weight of the evidence. [CITATION]. “[W]e review the evidence, the credibility of witnesses,\nand the entire record.” [CITATION], citing [CITATION]. But we will not reverse the conviction unless “the trial\ncourt ‘ “clearly lost its way and created such a manifest miscarriage of justice that the\nconviction must be reversed and a new trial ordered.” ’ ” Id., quoting [CITATION], quoting [CITATION] \n(1st Dist.1983).\n {¶35} It is undisputed that Ms. Shinholster shot Jason, so Ms. Williams’s\n\n[SEGMENT 26]\nguilt is premised on aiding or abetting. And to support a conviction for aiding or\nabetting under R.C. 2923.03(A)(2), “ ‘the evidence must show that the defendant\nsupported, assisted, encouraged, cooperated with, advised, or incited the principal in\nthe commission of the crime, and that the defendant shared the criminal intent of the\nprincipal. Such intent may be inferred from the circumstances surrounding the crime.’\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n” [CITATION]¶ 15, quoting [CITATION] syllabus. “ ‘ “[I]n order to aid or abet, whether by words, acts, encouragement,\nsupport, or presence, there must be something more than a failure to object.” ’ ” [CITATION] ¶ 12, quoting [CITATION], quoting [CITATION].\n {¶36} Ms. Williams maintains that no evidence existed of a common plan or\nscheme to fight or shoot anyone. But the state counters that Defendants acted in\nconcert to cause harm to Jason with a deadly weapon. Defendants planned to get a\nrefund from the store. They decided that Ms. Williams should enter the store because\nthe owners were less likely to recognize her. And Ms. Shinholster would wait in the\ncar on speaker phone, so she could hear everything that transpired inside (and come\nto her aid if necessary). Ms. Williams set the plan into motion by entering the store.\nAnd although Ms. Shinholster testified that she did not know Ms. Williams entered\nthe store with her firearm, she also stated it was their general practice to carry their\nfirearms, and both women were armed at the time of the affray.\n {¶37} Ms. Duffus had Ms. Williams pinned to the ground throughout most of\nthe physical encounter, so Ms. Williams was unable to access her firearm. However,\nthere is undisputed evidence that at least once during the encounter, Ms. Williams\ninstructed Ms. Shinholster to shoot. Ms. Shinholster testified that she did not\nremember Ms. Williams saying “shoot” or anything like that, but the prosecutor played\nJason’s 911 call and asked her if she could identify who yelled, “Shoot the bitch.” Ms.\nShinholster identified Ms. Williams as the speaker. And Ms. Duffus testified that Ms.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nWilliams instructed Ms. Shinholster to “shoot them.” While on the phone with 911\nfollowing the event, Ms. Duffus also stated: “The other one was saying shoot them,\nshoot them.”\n {¶38} In [CITATION], the defendant and members of his gang arrived at a party in search of an individual\nwho was involved in a previous altercation with a member of their gang. Witnesses\ntestified that the defendant yelled “Shoot” and “Shoot the [expletive].” Id. Shots were\nfired, and three individuals were injured. Id. Although the identity and the specific\ntarget of the shooter were uncertain, the Ohio Supreme Court upheld the juvenile\ncourt’s finding of delinquency under the principle of complicity by aiding and abetting\nbecause “the juvenile court evaluated the evidence, determined that the [defendant]\nhad actively encouraged a member of his gang to shoot at someone at the [victim’s]\nhome with the specific intent to cause harm, and found that the state had sufficiently\nshown transferred intent.” Id. at ¶ 17.\n {¶39} Like the defendant in [CITATION], Ms. Williams encouraged someone\nshe knew to be armed to shoot. Accordingly, based on these facts, Ms. Williams’s\nconviction for felonious assault was supported by sufficient evidence and was not\nagainst the manifest weight of the evidence. We overrule her second assignment of\nerror.\n * * *\n {¶40} In the appeal numbered C-230457, we overrule Ms. Shinholster’s\nassignments of error and affirm the trial court’s judgment.\n {¶41} And in the appeal numbered C-230436, we sustain Ms. Williams’s first\nassignment of error and overrule her second and third assignments of error. We\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nvacate her sentences and remand the case for resentencing at which the state must\nelect which of the allied offenses it will pursue against her. In all other respects, we\naffirm the trial court’s judgment.\n [CITATION].\n\nBOCK, P.J., and WINKLER, J., concur.\n\nPlease note:\n The court has recorded its entry on the date of the release of this opinion.\n\n====== \n[CITATION]\n\n\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n IN RE: G.W. : APPEAL NO. C-230268\n TRIAL NO. F17-28X\n :\n : O P I N I O N.\n\n\nAppeal From: Hamilton County Juvenile Court\nJudgment Appealed From Is: Affirmed\nDate of Judgment Entry on Appeal: April 24, 2024\n\n\nCharles H. Bartlett, Jr., for Appellant Father,\nThe Helbling Law Firm, LLC, and John J. Helbling, for Appellee Mother. OHIO FIRST DISTRICT COURT OF APPEALS\n\nBOCK, Presiding Judge.\n {¶1} This case arises from a custody dispute between appellant (“Father”)\nand appellee (“Mother”) over their minor daughter, G.W. On appeal, Father argues\nthat the juvenile court erred by denying his motion to hold Mother in contempt for\nviolating a court-approved shared-parenting plan and by awarding Mother custody of\nG.W. Because the record supports the juvenile court’s determinations that Mother\nsubstantially complied with the terms of the shared-parenting plan and that awarding\nMother custody of G.W. was in the child’s best interest, we affirm the juvenile court’s\njudgment and overrule Father’s assignments of error.\n I. FACTS AND PROCEDURE\n A. The shared-parenting plan and the parties’ motions\n {¶2} In March 2018, the juvenile court approved an agreed shared-parenting\nplan (“SPP”) under which the court granted Mother and Father equal legal and\nresidential custody of G.W. The SPP provided, “[e]ach parent shall be entitled to speak\nwith or otherwise communicate with their minor child at all reasonable times.” It\nrequired Mother and Father to mediate “any major disagreement between them\nrelating to the minor child” before any court hearing and to “consult as to the\nappropriate school placement for the minor child.” Finally, the SPP stated, “[n]either\nparent shall enroll their child in any school or non-school extracurricular activities\nand/or sports without the agreement of the other party. * * * Neither parent shall\nenroll the child in more than one non-agreed upon activity.”\n {¶3} In October 2019, Mother moved to terminate the SPP and sought sole\ncustody of G.W. Her motion additionally requested that the court hold Father in\ncontempt for failing to follow the SPP. Likewise, in December 2019, Father moved to\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nterminate the SPP and sought legal and residential custody of G.W. In 2020, Father\npetitioned the court to find Mother in contempt for failing to follow the SPP and moved\nfor sole custody of G.W.\n B. Magistrate hearing\n {¶4} After the court approved the SPP, G.W. split time between Mother and\nFather. Mother had lived in Colerain Township for nine years with her other daughter,\nZ.T., who was born in 2013. Father lived in St. Bernard when he signed the SPP. He\nmoved to Harrison, Ohio, with his wife, their infant child, and his wife’s son from a\nprior marriage. Father has since moved to Indiana.1\n {¶5} Regarding the logistics of G.W.’s medical care, for a time, Mother\nprovided health insurance for G.W. through her service with the Ohio National Guard.\nFather testified that on multiple occasions, he asked Mother to provide him with a\ncopy of her insurance card, but she never delivered. Mother explained that her\ninsurance information was contained on her military identification card, which she\ncould not copy per military policy. Mother testified that whichever parent was with\nG.W. at the time a medical appointment needed to be scheduled would make her\nmedical appointments and then tell the other parent about the appointment.\n {¶6} While both parents initially agreed that G.W. would attend preschool,\nafter the onset of the Covid-19 pandemic, Father objected to G.W. attending preschool.\nHe cited his concern for his mother and father, both of whom had health issues. As a\nresult of Father’s objections, G.W. did not attend preschool during the 2020-2021\n\n1 At the hearing, Father testified that he lived in Harrison and though he wanted to move to Indiana,\nhe had not done so. But both the magistrate’s and juvenile court’s decisions state that Father had\nmoved to Indiana. It is unclear from the record if or when Father moved to Indiana. But because\nFather does not challenge this finding and the juvenile court expressly gave Father’s move to\nIndiana no weight, this issue is immaterial to our review.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nschool year. When the 2021-2022 school year came around, Father again objected to\nG.W. attending preschool. Mother, however, enrolled G.W. in a preschool in her\n\n[SEGMENT 27]\ndistrict. (Mother also contacted a preschool in Harrison, Ohio, near Father, but the\npreschool was not accepting new students.) During that school year, Mother took G.W.\nto preschool during her parenting time. Father did not take G.W. to preschool during\nhis parenting time.\n {¶7} From 2019 through 2022, Mother signed G.W. up for several\nextracurricular activities, to which Father objected, partly due to his concerns with the\nCovid-19 pandemic. In 2019, Mother asked Father if he would consent to G.W.\nparticipating in gymnastics. While Father objected, Mother, believing that the SPP\nallowed either parent to enroll G.W. in one extracurricular at a time over the objection\nof the other parent, signed G.W. up for gymnastics. In 2020, G.W. quit gymnastics and\nMother enrolled her in ballet. In 2021, Mother asked Father to consent to G.W.\nparticipating in T-ball as well as ballet. But because Father objected, Mother did not\nregister G.W. in T-ball. In 2022, G.W. quit ballet and resumed gymnastics. Mother\nagain asked Father if he would consent to G.W. participating in T-ball and Father again\nobjected. Though Father objected to T-ball, Mother testified that she signed G.W. up\nfor T-ball because she believed that T-ball would not overlap with cheerleading, a new\nactivity for which Mother had registered G.W. As it turned out, T-ball overlapped with\ngymnastics and T-ball games fell on one of Father’s days with G.W.\n C. The magistrate’s and juvenile court’s decisions\n {¶8} Following the hearing, the magistrate granted both parties’ request to\nterminate the SPP, denied both parties’ motions for contempt, and granted Mother\nsole custody of G.W.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶9} Regarding custody, the magistrate noted that R.C. 3109.04(F)(1) sets\nforth the factors to consider in determining the child’s best interest and found that\nR.C. 3109.04(F)(1)(d), “the child’s adjustment to the child’s home, school, and\ncommunity,” was most applicable and weighed in favor of Mother. And the magistrate\nfound that neither Mother’s nor Father’s actions rose to the level of contempt. Father\nobjected to the magistrate’s decision.\n {¶10} In April 2023, the juvenile court overruled Father’s objections and\nadopted the magistrate’s decision. The juvenile court, like the magistrate, found that\nR.C. 3109.04(F)(1)(d) weighed in favor of Mother, noting that G.W. had spent nearly\na full school year at the school in Mother’s district. The juvenile court found that\nMother substantially complied with the SPP and denied both parties’ contempt\nmotions. The court terminated the SPP, awarded Mother legal custody of G.W., and\nawarded the parties equal parenting time.\n II. LAW AND ANALYSIS\n {¶11} Father raises two assignments of error: The trial court erred by (1)\nfailing to hold Mother in contempt, and (2) awarding Mother custody of G.W.\nA. The trial court correctly denied Father’s contempt motion\n {¶12} In asserting that the trial court erroneously denied his contempt\nmotion, Father argues that Mother testified that she failed to give Father a copy of her\ninsurance card despite multiple requests, did not consult with Father before making\nmedical and dental appointments, allowed G.W. to sleep in the same bed as Mother,\ninterfered with Father’s phone calls to G.W., and failed to use mediation to resolve\ndisagreements with Father.\n ```plaintext\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶13} An appellate court reviews a trial court’s ruling on a contempt motion\nfor an abuse of discretion. [CITATION], ¶ 19, citing [CITATION], ¶ 4. A court abuses its discretion when its judgment is\nunreasonable, arbitrary, or unconscionable. [CITATION]. A court has broad discretion to determine whether\na party violated its orders and what conduct constitutes contempt. [CITATION].\n {¶14} Parents subject to a custody order may seek a contempt finding when\nthe other party interferes or fails to comply with the order. R.C. 2705.031(B)(2). A\nmoving party establishes a prima facie case of civil contempt by proving, by clear and\nconvincing evidence, the nonmoving party’s failure to comply with an existing order.\n[CITATION], quoting [CITATION]. Once the movant establishes a prima facie case\nof contempt, the burden shifts to the nonmovant to establish a defense for the\nnoncompliance. [CITATION]. A party’s substantial compliance with a court order can\nserve as a defense to a contempt finding. See [CITATION]; see also [CITATION], ¶ 14. A technical violation of\na court’s order does not necessarily require a contempt finding. [CITATION], ¶ 13.\n {¶15} The record supports the juvenile court’s finding that Mother\nsubstantially complied with its order. Regarding the health-insurance card, the\njuvenile court credited Mother’s explanation that Mother could not provide Father\nwith a copy of her insurance card due to military policy prohibiting her from copying\nthe card. Moreover, Mother testified that she attempted to provide Father with her\n\n``` OHIO FIRST DISTRICT COURT OF APPEALS\n\ninsurance account numbers and made herself available for Father to call her so that\nshe could give medical providers her insurance information over the phone. As to\nMother’s failure to mediate, Father never moved to compel mediation. Further,\nMother and Father, with their attorneys, met several times to attempt to resolve\ndisputes. Next, regarding Mother’s enrolling G.W. in preschool, she agreed to forego\npreschool for the 2020-2021 year and attempted to consult with Father for the 2021-\n2022 school year. Notably, the SPP did not expressly require that the parties agree to\nG.W.’s school placement—instead, the plan required the parties to “consult.” Finally,\nthere was conflicting evidence involving whether Mother interfered with Father’s\ntelephone calls with G.W. and the court was entitled to believe Mother’s testimony\nover Father’s.\n {¶16} The juvenile court, which was in the best position to judge the witnesses’\ncredibility and weigh the evidence, determined that Mother was not in contempt of the\nSPP. The trial court was well within its discretion to deny Father’s motion for\ncontempt. We overrule Father’s first assignment of error.\n B. The juvenile court’s custody order was not an abuse of discretion\n {¶17} Father argues in his second assignment of error that the juvenile court\nerred in determining that awarding Mother custody of G.W. was in G.W.’s best\ninterest. First, Father argues that the court rewarded Mother for contumacious\nbehavior by placing weight on G.W.’s adjustment to her school when Mother enrolled\nG.W. over Father’s objections. Second, Father argues that the juvenile court failed to\nconsider which parent is “more likely to honor and facilitate court-approved parenting\ntime rights or visitation and companionship rights” as required by R.C.\n3109.04(F)(1)(f).\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶18} An appellate court reviews a juvenile court’s custody determination for\nan abuse of discretion. [CITATION]. Custody decisions are among the “most difficult and agonizing decisions” that juvenile\ncourts make. [CITATION], ¶ 14. Juvenile courts enjoy broad discretion in crafting those\ndecisions because the knowledge gained through observing the witnesses “cannot be\nconveyed to a reviewing court by a printed record.” [CITATION], citing [CITATION]. But that discretion is “not absolute;\nthe court must follow the procedures described in R.C. 3109.04 when making custody\ndecisions.” [CITATION], ¶ 7, citing [CITATION].\n {¶19} When terminating a shared-parenting plan, the juvenile court is\nrequired to allocate parental rights and responsibilities “as if no decree for shared\nparenting had been granted and as if no request for shared parenting ever had been\nmade.” R.C. 3109.04(E)(2)(d). When allocating parental rights, the juvenile court\nmust consider the best interest of the child based on “all relevant factors” including\nthose listed under R.C. 3109.04(F)(1) and (2). Relevant here, those factors include:\n (d) The child’s adjustment to the child’s home, school, and community;\n ***\n (f) The parent more likely to honor and facilitate court-approved\n parenting time rights or visitation and companionship rights;\n ***\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n (i) Whether the residential parent or one of the parents subject to a\n shared parenting decree has continuously and willfully denied the other\n parent’s right to parenting time in accordance with an order of the court.\nR.C. 3109.04(F)(1).\n {¶20} The juvenile court expressly set out the required factors under R.C.\n3109.04(F)(1) and (2), applied those factors, and found that it was in G.W.’s best\ninterest to award custody to Mother. The juvenile court discussed the relevant factors\nand explained why certain factors did not apply and why other factors did not weigh\nin favor of either parent.\n\n[SEGMENT 28]\n {¶21} The juvenile court found that, under [CITATION], G.W.’s\nadjustment to her school in Mother’s district weighed in favor of granting custody to\nMother. Though Father argues this finding rewards Mother for her contumacious\nbehavior in enrolling G.W. in school over his objections, the juvenile court correctly\nfound that Mother’s conduct did not constitute contempt. Further, [CITATION]’s\nfocus is on G.W.’s best interest, not whether either parent should be “rewarded” with\ncustody. [CITATION] required the juvenile court to consider only whether\nG.W. had adjusted well to her school and community. The juvenile court, noting that\nG.W. had attended the school in Mother’s district for almost a year, found that G.W.\nhad adjusted well to the school. That finding was supported by the record.\n {¶22} While Father asserts that G.W. could have adjusted just as well to a\nschool in his district, G.W. was never enrolled in his district, so the juvenile court could\nnot have found G.W. adjusted well to a school in Father’s district. In determining what\nis in a child’s best interest, juvenile courts consider “the present circumstances, not *\n* * what possibly may happen in the future” or what might have hypothetically\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nhappened if events had transpired differently. [CITATION]\n {¶23} Finally, Father argues that the juvenile court failed to consider which\nparent is “more likely to honor and facilitate court-approved parenting time rights or\nvisitation and companionship rights” as required by R.C. 3109.04(F)(1)(f). Mother\nargues that Father failed to raise this argument in his objections to the magistrate’s\ndecision and therefore waived it. Father failed to address the waiver issue and did not\ndevelop a plain-error argument.\n {¶24} “Except for a claim of plain error, a party shall not assign as error on\nappeal the court’s adoption of any factual finding or legal conclusion * * * unless the\nparty has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).”\nJuv.R. 40(D)(3)(b)(iv). All objections to a magistrate’s decision must be “specific and\nstate with particularity the grounds for objection.” Juv.R. 40(D)(3)(b)(ii). “When an\nappellant fails to develop a plain-error analysis, the appellate court need not create\none on the appellant’s behalf and may decline to reach the merits of the claim.” [CITATION], citing [CITATION]. Here, Father’s\nobjections and supplemental objections did not argue that the magistrate failed to\nconsider R.C. 3109.04(F)(1)(f). Because Father did not raise this argument below and\nhas not developed a plain-error analysis, this court declines to reach the merits of this\nargument.\n {¶25} The juvenile court weighed the evidence, considered the relevant factors\nunder R.C. 3109.04(F), and determined that awarding custody to Mother was in\nG.W.’s best interest. That decision was supported by competent credible evidence.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nWhile there was competing evidence about what was in G.W.’s best interest, the\njuvenile court was in the best position to weigh that evidence and decide what was in\nG.W.’s best interest. We hold that the juvenile court’s awarding Mother custody of\nG.W. was not an abuse of discretion and we overrule Father’s second assignment of\nerror.\n III. CONCLUSION\n {¶26} We overrule Father’s assignments of error and affirm the juvenile\ncourt’s judgment.\n\n Judgment affirmed.\nBERGERON and WINKLER, JJ., concur.\nPlease note:\n The court has recorded its entry on the date of the release of this opinion.\n\n====== \n[Cite as [CITATION].]\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n\n STATE OF OHIO, : APPEAL NO. C-230275\n TRIAL NO. B-2202579\n Plaintiff-Appellee, :\n O P I N I O N.\n vs. :\n KENDRA FRENCH, :\n Defendant-Appellant. :\n\n\nCriminal Appeal From: Hamilton County Court of Common Pleas\nJudgment Appealed From Is: Affirmed\nDate of Judgment Entry on Appeal: April 3, 2024\n\nMelissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,\nAssistant Prosecuting Attorney, for Plaintiff-Appellee,\nBrian A. Smith Law Firm, LLC, and Brian A. Smith, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS\n\nKINSLEY, Judge.\n {¶1} Defendant-appellant Kendra French appeals from the trial court’s\njudgment convicting her, after a bench trial, of felonious assault. French argues that\nher conviction was against the manifest weight of the evidence, contending that the\nevidence demonstrated that she had acted in self-defense. She further argues that the\ntrial court’s exclusion of a witness’s prior criminal history was an abuse of discretion\nand a violation of her rights to due process, a fair trial, and to confront and cross-\nexamine witnesses under the United States and Ohio Constitutions.\n {¶2} Because French’s belief of imminent bodily harm was not objectively\nreasonable, the state disproved self-defense beyond a reasonable doubt, and her\nconviction was therefore not against the manifest weight of the evidence. And because\nFrench’s counsel did not actually impeach the witness regarding his prior criminal\nhistory, the trial court properly excluded this testimony. Accordingly, we overrule\nFrench’s assignments of error and affirm the judgment of the trial court.\n Factual and Procedural Background\n\n {¶3} French was charged with two counts of felonious assault in violation of\nR.C. 2903.3(A)(1) and (2) in connection with a May 28, 2022 shooting that resulted in\ninjuries to French’s neighbor, F.H. The case proceeded to a bench trial on March 14,\n2023.\n {¶4} At the bench trial, F.H. testified that she lived at an apartment complex\non Losantiville Avenue and that French lived in the unit below her. The Losantiville\napartment complex had four units in total, with two units on each floor. There was an\norange-tiled landing at the entrance, with a set of stairs that led up to the first set of\n OHIO FIRST DISTRICT COURT OF APPEALS\n\napartment units on the right side and a door to a set of stairs leading down to the\nbasement and garage on the left side.\n {¶5} F.H. testified that she and French had a contentious relationship and\nthat she frequently asked French to keep the noise down to no avail. On the evening\nof May 28, 2022, F.H. and her boyfriend, Anthony Jackson, pulled into the driveway\nof the apartment complex after getting groceries and they saw that French and her\nfriend, Warren Bratcher, were seated on a ledge near the garage. According to F.H.,\nJackson and Bratcher began arguing first, and then French squared up to fight F.H.\nAt that point, all four parties engaged in a physical altercation.\n {¶6} After the fight broke up, F.H. and Jackson dropped off their groceries to\nF.H.’s apartment. F.H. testified that when she and Jackson went back downstairs to\nget the rest of the groceries, French shot her in the face as F.H. opened the door that\nled to the basement and garage.\n {¶7} F.H. testified that she was transported to the hospital after Jackson\ncalled 911, where she was diagnosed with maxillary and mandible fractures. She also\ntestified that she did not initiate the first altercation with French and that she did not\nhave any weapons that night. On cross-examination, she admitted that she provided\na statement at the hospital that she heard a knock on her door and was shot when she\nanswered, which contradicted her testimony at trial.\n {¶8} Jackson also testified at trial. He testified that when he and F.H. pulled\ninto the driveway, French said something that led to the first physical altercation\nbetween French and F.H. According to Jackson, he tried to break them up, but\nBratcher hit him, and he fell to the ground. Jackson also testified that F.H. was shot\nat the bottom of the basement stairs after he had gone back downstairs with her to get\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nmore groceries. But in an interview with the police, Jackson stated they had barely\ngotten the key in the front door when F.H. was shot, which seemingly implied they\nwere upstairs by F.H.’s apartment. In his testimony, Jackson also denied having\nweapons that day, either on his person or in F.H.’s apartment.\n {¶9} On cross-examination, French’s counsel tried to elicit testimony from\nJackson regarding a prior conviction for domestic violence. Though Jackson was\ncharged with domestic violence, he clarified that he was not sentenced to prison and\nthat he was not convicted of a crime punishable by more than a year. The state\nobjected to this testimony, and the trial court struck Jackson’s answer, because\nJackson’s conviction was not a felony or a crime of dishonesty in the last ten years.\n\n[SEGMENT 29]\nFollowing the state’s objection, there were no further questions on the issue by\nFrench’s counsel.\n {¶10} Detective Jacquelyn Metz also testified at trial. Metz indicated that she\ninterviewed French, French’s brother, and Jackson at the crime scene, which she also\ncanvassed. On the orange-tiled landing, she found a shell casing and a human tooth,\nand upstairs she found human blood and teeth. Though not qualified as an expert\nwitness, she testified that, based on her experience, she believed the shell casing came\nfrom a handgun.\n {¶11} Detective Charles Zopfi was an additional witness for the state at trial.\nZopfi testified that he interviewed F.H. at the hospital and that she identified French\nas the person who had shot her. Per Zopfi’s testimony, he also interviewed French in\nthe early hours of the morning on May 29, 2022. As Zopfi told the court, according to\nFrench in this interview, she shot F.H. when F.H. lunged down the stairs at French.\nZopfi relayed that French did not recall seeing a weapon on F.H., but that French was\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ncarrying her gun with her throughout the altercation. According to Zopfi, French also\ntold him that she had a history of disagreements with F.H., that she had a license to\ncarry a concealed weapon, and that she believed Jackson had a gun on the night of the\nshooting.\n {¶12} When the trial court took a recess during Zopfi’s testimony, French’s\ncounsel observed Zopfi and Officer Christian Russ discussing the case, ostensibly in\nviolation of a court order separating the witnesses. Zopfi averred that it was a lapse in\njudgment and no relevant information was exchanged. At the request of defense\ncounsel, the trial court admonished the witnesses not to speak to each other.\n {¶13} On cross-examination, Zopfi denied that the lack of physical evidence in\nthe basement was significant. Zopfi clarified that, according to F.H., she was coming\nup from the basement and going onto the orange-tiled landing when she was shot.\nBased on this, Zopfi contended it would not make sense to find blood stains in the\nbasement. Zopfi also acknowledged that he interviewed F.H. again two days after the\nincident without recording the interview, turning on his body-worn camera, or taking\nnotes.\n {¶14} Russ testified at trial that on the evening of the shooting, he found\nFrench sitting on the front curb of the apartment complex with a bloody nose.\nAccording to Russ, French said, “I am the one that shot her.” Russ testified that he\nand another officer retrieved French’s gun, which was empty. They then placed French\nin custody.\n {¶15} At the close of the state’s case, French moved for an acquittal under\nCrim.R. 29. The trial court denied this motion.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶16} French testified at trial. She testified that she and F.H. often had\ndisagreements. French further testified that she frequently heard F.H. and Jackson\ngetting into verbal and physical altercations. She believed that Jackson had a gun in\nF.H.’s apartment, although she had never seen it.\n {¶17} According to French, it was Jackson who initiated the first altercation\non the night of shooting. She maintained that F.H. made physical contact with her\nfirst by pulling her hair. French contended that Bratcher broke up the first fight.\nFrench further testified that her gun was in her waistband the whole time and that she\ndid not pull out her gun during the first altercation because she did not feel threatened\nat that point.\n {¶18} French indicated that she and Bratcher waited outside for a few\nmoments after the first altercation. French testified that when they went inside, F.H.\nlunged at her from the top of the stairs. French testified that because she thought that\nF.H. may have gotten a gun from Jackson, she shot F.H. as she lunged at her.\nAccording to French, this caused F.H. to fall backwards. French indicated that F.H.\nthen bounced up and ran to her apartment. French further testified that she intended\nto turn herself into the police to show that she was not guilty and had acted in self-\ndefense.\n {¶19} Bratcher also testified at trial. He testified that Jackson attacked him\nfirst. He heard a shot fired, but did not see anything. He left the scene after hearing\nthe shot. He also recalled telling French she should not have done what she did while\nshe was being arrested.\n {¶20} The following exhibits were moved into evidence at trial: surveillance\nvideos submitted by an anonymous neighbor to the police, a recording of Jackson’s\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ninterview with Metz, and the body-worn camera footage of an unidentified officer on\nthe scene that evening.\n {¶21} These exhibits demonstrate a number of key facts. For example, though\none of the surveillance videos was mostly obstructed by shrubbery and fencing, the\nother surveillance video showed two pairs of individuals fighting by the garage, with\none individual falling, as [CITATION] had testified, and another individual having her hair\npulled, as [CITATION] had testified. In addition, in [CITATION]’s interview with Metz, [CITATION]\nstated that [CITATION] was trying to get her gun from the car following the first altercation,\nbut that [CITATION] stopped her. He also indicated that [CITATION] and [CITATION] started the\nfight. In the body-worn camera footage, blood splatters were visible near F.H.’s unit,\nbut not in the basement. Additionally, an officer is seen commenting in the body-worn\ncamera footage that a tooth and casing were found on the orange-tiled landing.\n {¶22} Following the presentation of the defense case, [CITATION] renewed her\nCrim.R. 29 motion, which the trial court denied again. The trial court found that F.H.\nwas the initial aggressor in the first altercation, that [CITATION] had time to get her gun\nfrom her car following the first altercation, that [CITATION] was standing on the orange-\ntiled landing when the shooting occurred, and that F.H. was standing at the top of the\nsteps above the orange-tiled landing. The trial court found that [CITATION] had an honest\nbelief that she was in danger, but that her perception of the threat from F.H. lunging\nat her without a visible weapon was not reasonable. Further, the trial court found that\n[CITATION]’s use of force was disproportionate to the danger she perceived.\n {¶23} The trial court ultimately found [CITATION] guilty as charged and sentenced\nher to five-to-six years of incarceration. She now appeals.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n Self-Defense\n\n {¶24} In her first assignment of error, French argues that her conviction was\nagainst the manifest weight of the evidence, because, she contends, the evidence\nshowed she acted in self-defense.\n {¶25} “[I]n evaluating a manifest weight challenge involving self-defense, we\nmust review the entire record, consider the credibility of witnesses, and determine\nwhether the trier of fact clearly lost its way and created a manifest miscarriage of\njustice with respect to its finding that the state disproved at least one of the elements\nof self-defense beyond a reasonable doubt.” [CITATION]. To disprove self-defense, the state must establish\n“beyond a reasonable doubt that the defendant: (1) was at fault in creating the\nsituation giving rise to the affray; (2) did not have reasonable grounds to believe or an\nhonest belief that he or she was in imminent danger of bodily harm; or (3) violated a\nduty to retreat or avoid danger.” Id. at ¶ 11.\n {¶26} “The test for a bona fide belief of imminent bodily harm is both objective\nand subjective: whether the defendant’s belief is objectively reasonable and whether\nthe defendant subjectively had an honest belief of imminent bodily harm.” [CITATION] at ¶ 29.\n {¶27} Here, the trial court found that French subjectively had an honest belief\nof imminent bodily harm. In reaching this conclusion, the trial court accepted\nFrench’s version of events. It agreed with French that F.H. was the initial aggressor\nand that F.H. lunged at her from the top of the landing. But it did not find that French’s\nhonest belief was objectively reasonable.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶28} French argues that it was objectively reasonable, because it was\nplausible that F.H. had a gun in light of Jackson’s prior criminal history and that F.H.\ncould have reached for that gun when she lunged at French. She further argues that\nJackson and F.H. were not credible, that it was illogical that there were no bloodstains\nin the basement, and that her gun was on her person the entire evening. She also takes\nissue with Zopfi and Russ’s discussion of the case in violation of the trial court order\nrequiring the separation of witnesses.\n {¶29} The trial court found that French’s use of a gun was disproportionate to\nany apparent danger perceived from F.H. lunging down the stairs. F.H. and Jackson\n\n[SEGMENT 30]\ndenied having weapons that day. Though French challenges their credibility, “it is well\nsettled law that matters as to the credibility of witnesses are for the trier of fact to\nresolve.” [CITATION] “Because the trier of fact sees and hears the witnesses at trial, we must defer to the\nfactfinder’s decisions whether, and to what extent, to credit the testimony of particular\nwitnesses.” Id. Therefore, we defer to the trial court’s finding that F.H. was not armed\nand that French’s use of a gun was disproportionate.\n {¶30} French’s contention that the lack of physical evidence in the basement\ndisproves F.H.’s version of events is rebutted by Zopfi’s evidence. Zopfi clarified that\nF.H. did not mean she was in the basement when she was shot. Rather, F.H. was by\nthe orange-tiled landing, and it would therefore make sense that physical evidence was\nfound in the landing and not in the basement.\n {¶31} French also fails to explain how the conversation between Russ and\nZopfi affected the outcome of her case. Although French argues that this impacted\ntheir credibility, the court credited her version of events, not theirs. Additionally, the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ntrial court admonished Russ and Zopfi to stop talking to each other and confirmed that\nnothing of consequence was discussed.\n {¶32} Thus, the trial court did not lose its way in finding that the state\ndisproved that French had reasonable grounds to believe she was in imminent danger\nof bodily harm. We therefore overrule French’s first assignment of error.\n Evid.R. 609\n\n {¶33} In her second assignment of error, French argues that the trial court\nabused its discretion in excluding evidence of Jackson’s prior criminal history.\n {¶34} “A trial court’s decision to admit or exclude evidence is reviewed for an\nabuse of discretion.” [CITATION], ¶ 6. Evid.R. 609 governs impeachment of a witness’s credibility through the\nadmission of evidence of a prior criminal conviction, which is either a crime of\ndishonesty or a crime that is punishable by death or more than one year of\nimprisonment. Evid.R. 609(A). The conviction may be proven only by the witness’s\ntestimony or by public record shown to the witness during his or her examination.\nEvid.R. 609(F).\n {¶35} Here, however, French’s counsel failed to actually impeach Jackson\nwith a prior conviction. The following exchange occurred during Jackson’s cross-\nexamination:\n FRENCH’S COUNSEL: Have you been convicted of a crime punishable\n by more than one year in prison in the last ten years?\n JACKSON: Is you talking about like domestic violence or something like\n that? Yeah.\n FRENCH’S COUNSEL: Yes.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n JACKSON: But I haven’t been to prison, no.\n FRENCH’S COUNSEL: Okay. What I’m asking is have you been\n convicted of something punishable by more than one year?\n JACKSON: No.\n FRENCH’S COUNSEL: And even if you didn’t get a year, potentially\n punishable by more than a year in prison?\n JACKSON: No.\n ***\n STATE: Objection, Your Honor, to the relevance of any sort of prior\n domestic violence between [F.H.] and Anthony Jackson.\n ***\n TRIAL COURT: Right. The conviction was not for a felony or a crime of\n dishonesty in the last ten years. It’s inadmissible, so I’ll strike the\n answer.\n FRENCH’S COUNSEL: Fair enough.\n {¶36} Considering Jackson’s responses to French’s counsel’s questions,\nJackson never indicated that he had in fact been convicted of the requisite crime as\nrequired by Evid.R. 609(F). While Jackson indicated he had been convicted of\ndomestic violence, he denied having gone to prison at all for this crime and further\ndenied having any criminal conviction whatsoever for which he faced more than a year\nin prison. Following Jackson’s answers, French’s counsel did not use a public record\nof the conviction to impeach Jackson as Evid.R. 609(F) contemplates. Instead, when\nthe state objected, and the trial court struck Jackson’s answer, French’s counsel agreed\nto move on. Thus, because Jackson was never properly impeached under either of the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nmethods for proving a prior conviction under Evid.R. 609(F), the trial court did not\nabuse its discretion in excluding evidence of [CITATION]’s criminal history.\n {¶37} Accordingly, we overrule [CITATION]’s second assignment of error.\n Conclusion\n\n {¶38} For the reasons set forth above, the trial court’s finding that [CITATION]’s\nhonest belief of imminent bodily harm was objectively unreasonable was not against\nthe manifest weight of the evidence. Further, because [CITATION]’s counsel did not\nactually impeach [CITATION] under Evid.R. 609, the trial court did not abuse its\ndiscretion in excluding evidence of [CITATION]’s prior conviction. Accordingly, [CITATION]’s\nassignments of error are overruled, and the trial court’s judgment is affirmed.\n Judgment affirmed.\n\nZAYAS, P.J., and WINKLER, J., concur.\n\nPlease note:\n The court has recorded its own entry on the date of the release of this opinion.\n \n[Cite as [CITATION].]\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n STATE OF OHIO, : APPEAL NOS. C-230288\n C-230318\n Plaintiff-Appellee, : TRIAL NO. B-1900989\n vs. :\n O P I N I O N.\n ELTON WHITTLE, :\n Defendant-Appellant. :\n\n\nCriminal Appeals From: Hamilton County Court of Common Pleas\nJudgment Appealed From Is: Affirmed\nDate of Judgment Entry on Appeal: March 20, 2024\n\n\nMelissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,\nAssistant Prosecuting Attorney, for Plaintiff-Appellee,\nRobinson & Brandt, P.S.C., and Jeffrey M. Brandt, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS\n\nWINKLER, Judge.\n {¶1} Defendant-appellant Elton Whittle was originally indicted on one count\nof trafficking in heroin, one count of possession of heroin, three counts of trafficking\nin a fentanyl-related compound, three counts of possession of a fentanyl-related\ncompound, one count of trafficking in cocaine, one count of possession of cocaine, one\ncount of trafficking in drugs, and one count of possession of drugs. A jury returned\nguilty verdicts on all 12 counts.\n {¶2} At the sentencing hearing, the trial court and the parties indicated that\nan 11-year sentence was mandatory. The court sentenced Whittle to 11 years in prison\non count three, trafficking in a fentanyl-related compound. For reasons not apparent\nin the record, it then merged all the other counts into count three. These appeals\nfollowed.\n Factual Background\n {¶3} In July of 2017, Officer Scott Brians of the Cincinnati Police Department\nreceived information from security officers at Cincinnati Children’s Hospital Medical\nCenter (“Children’s Hospital”) about drug sales occurring on Winslow Avenue\nadjacent to the hospital’s parking garage. They reported that a black man was\nconducting hand-to-hand drug transactions out of a Chevrolet Malibu that was parked\non Winslow. They also provided Officer Brians with the license plate number of that\ncar. After checking with the Bureau of Motor Vehicles (“BMV”), he found that it was\nregistered to 2840 Winslow Avenue, Apartment B.\n {¶4} In early August 2017, Officer Brians met with a reliable, confidential\ninformant identified as “CI#1.” CI#1 told him that the suspect in the ongoing drug\nsales went by the street name “E” and used a specific telephone number. CI#1 also\nsaid that E used a gold Dodge Durango when making the sales. Officer Brians located\n OHIO FIRST DISTRICT COURT OF APPEALS\n\na vehicle matching that description parked on Winslow Avenue and obtained its\nlicense plate number. After checking that license plate with the BMV, he learned that\nit was also registered to 2840 Winslow Avenue, Apartment B. A check of the Regional\nCrime Information Center database revealed that Whittle, who had numerous drug-\nrelated arrests, was attached to that license plate number. After seeing a BMV photo\nof Whittle, CI#1 confirmed that Whittle was the person he knew as E, who was selling\ndrugs.\n {¶5} On August 25, 2017, officers met with another reliable confidential\ninformant identified as “CI#3” to arrange a controlled purchase of drugs from E.\nOfficer Brians monitored a call from CI#3 to E using the phone number he had\nobtained from CI#1. E directed CI#3 to meet him at a gas station at the corner of\nReading Road and East Martin Luther King Drive. Officers saw Whittle arrive in a\ngold Dodge Durango with the previously identified license plate number. Whittle got\nout of the vehicle, approached CI#3, and engaged in a hand-to-hand transaction.\n\n[SEGMENT 31]\nSubsequently, the officers met with CI#3 and recovered the drugs that CI#3 had\npurchased, which were later identified as a heroin/fentanyl mix.\n {¶6} On September 5, 2017, the officers arranged another controlled\npurchase. Officer Brians monitored a call from CI#3 to Whittle to arrange a purchase\nof heroin/fentanyl. Whittle directed CI#3 to go to Winslow Avenue. At that meeting,\nthe officers saw Whittle go to a side door at 2840 Winslow Avenue, retrieve something\nfrom inside the door, approach CI#3, and engage in a hand-to-hand transaction. The\nofficers recovered the drugs purchased by CI#3, which were later identified to be a\nheroin/fentanyl mix.\n {¶7} On October 30, 2017, a security officer at Children’s Hospital again\ncalled police to report ongoing drug sales at 2840 Winslow Avenue and described the\nseller. That description was consistent with the police officers’ observations of\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nWhittle. The security officer also stated that the seller lived in an apartment inside\n2840 Winslow Avenue and drove a gold Dodge Durango, with the previously identified\nlicense plate, which was parked in the driveway of 2840 Winslow Avenue.\n {¶8} Brians stated that the investigation of Whittle’s drug sales was put on\nhold for several months when higher priority cases arose. On March 28, 2018, officers\nmonitored a phone call between another confidential informant identified as “CI#2”\nat the same phone number as the previous buys. Whittle directed CI#2 to the gas\nstation at the corner of Reading Road and Martin Luther King Drive. Whittle drove\nup in the gold Dodge Durango with the previously identified license plate. He got out,\napproached CI#2, and engaged in a hand-to-hand drug transaction. Once again, the\nofficers recovered drugs later identified as a heroin-fentanyl mix. When shown a\npicture of Whittle, CI#2 identified Whittle as the person who had sold the drugs.\n {¶9} On February 6, 2019, a source of information identified as “SI#1”\ninformed officers that a trafficker known as E, using the same phone number, sold\nnarcotics out of 2840 Winslow Avenue, Apartment B. SI#1 also told them that E was\ndriving a silver Toyota Avalon with tinted windows. When shown a photo of Whittle,\nSI#1 identified Whittle as E.\n {¶10} Officers conducted surveillance at 2840 Winslow Avenue and saw a\nsilver Toyota Avalon with tinted windows parked in the driveway. They saw Whittle\ncome out of the building, get into the Toyota and drive away. A short time later, he\nreturned and used keys to enter the building. A BMV check revealed that the Toyota\nwas registered to Whittle at the Winslow Avenue address. On February 20, 2019, the\nofficers saw Whittle get out of the Toyota in the parking lot of a drive-through, engage\nin a hand-to-hand transaction, and then get back into the vehicle.\n {¶11} Based on the information the officers had obtained, Officer Brians\nobtained a search warrant to search the premises at 2840 Winslow Avenue, which had\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nfour apartments, two on each floor. The warrant stated that apartment B was on the\ntop northwest corner. It also allowed the officers to search the Dodge Durango and\nthe Toyota Avalon.\n {¶12} Police officers executed the warrant on February 22, 2019. In the\napartment at the northwest corner of the building, they found mail with Whittle’s\nname and address on it, fentanyl packaged for sale, packaging material, “ripped up”\nlottery tickets, numerous handguns and ammunition, seven cell phones, cash, pills,\nheroin, marijuana and digital scales. In the basement’s common area, officers found\nmore torn lottery tickets and torn plastic baggies, both of which are commonly used to\npackage drugs. They also found a digital scale, a piece of mail and a traffic ticket with\nWhittle’s name on them, and bags of heroin and fentanyl on the top of a bookshelf. A\ndrug dog alerted to an unlocked storage unit marked “C,” the door of which was\nopened. Inside, the officers recovered heroin, fentanyl from the pocket of a gray and\nblack shirt, a 12-gauge shotgun, and several handguns.\n {¶13} Whittle was indicted on one count of trafficking in heroin, one count of\npossession of heroin, three counts of trafficking in a fentanyl-related compound, three\ncounts of possession of a fentanyl-related compound, one count of trafficking in\ncocaine, one count of possession of cocaine, one count of trafficking in drugs, and one\ncount of possession of drugs. He subsequently filed a motion to suppress, in which he\nalleged the search was improper because the warrant allowed police to search\napartment B, but they had actually searched apartment D, and the warrant did not\nallow the officers to search in the basement anywhere but the storage bin for\napartment B. The trial court overruled the motion.\n {¶14} Following a jury trial, Whittle was found guilty of all 12 counts charged\nin the indictment. The trial court sentenced him on count three, which was trafficking\nin a fentanyl-related compound under R.C. 2925.03(A)(2), and merged the other\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ncounts. As required by R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b), the trial court\nsentenced Whittle to a mandatory 11 years in prison. This appeal followed.\n Search-Warrant Issues\n {¶15} Whittle presents six assignments of error for review. In his first\nassignment of error, he contends that the trial court erred by failing to grant his motion\nto suppress. He argues that the search warrant failed to accurately and particularly\ndescribe the residence to be searched, no probable cause existed that evidence would\nlikely be found in the residence to be searched, and that the officers failed to act in\ngood faith by entering the incorrect residence rather than seeking a new and accurate\nwarrant once they learned that the description of the property was inaccurate. This\nassignment of error is not well taken.\n {¶16} Appellate review of a motion to suppress presents a mixed question of\nlaw and fact. We must accept the trial court’s findings of fact as true if competent,\ncredible evidence supports them. But we must independently determine whether the\nfacts satisfy the applicable legal standard. [CITATION].\n {¶17} To establish probable cause to issue a search warrant, the supporting\naffidavit must contain sufficient information to allow a magistrate to draw the\nconclusion that evidence is likely to be found at the place to be searched. [CITATION], ¶ 11 (1st Dist.). Probable cause\nexists when a reasonably prudent person would believe that a fair probability exists\nthat the place to be searched contains evidence of a crime. [CITATION], paragraph one of the syllabus; [CITATION]. “[I]t is\nclear that ‘only the probability, and not prima facie showing, of criminal activity is the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nstandard of probable cause.’ ” (Emphasis deleted.) [CITATION], quoting [CITATION].\n {¶18} A reviewing court, which includes a trial court ruling on a motion to\nsuppress, as well as an appellate court, must give great deference to the magistrate’s\nprobable-cause determination. [CITATION]. “[A]fter-the-fact\nscrutiny by the courts of the sufficiency of an affidavit should not take the form of de\nnovo review.” [CITATION], quoting [CITATION]. Our duty is to ensure that the\nissuing magistrate had a substantial basis for concluding that probable cause\nexisted. See [CITATION]. Doubtful or marginal cases should be\nresolved in favor of upholding the warrant. [CITATION].\n {¶19} A search warrant and its supporting affidavit must particularly describe\nthe place to be searched. Crim.R. 41(C); [CITATION]. Because a search warrant and supporting affidavit\nusually contain more information than just an address to identify the place to be\nsearched, a search warrant is not necessarily invalid if it describes the property to be\nsearched with an incorrect address. [CITATION]. To determine whether a\nproperty description is constitutionally valid, the trial court must determine whether\nthe place to be searched is described with sufficient particularity to enable the\nexecuting officer to locate and identify the premises with reasonable effort and\nwhether there is a reasonable probability that another premises might be mistakenly\nsearched. [CITATION].\n {¶20} As to the place to be searched, the warrant stated:\n OHIO FIRST DISTRICT COURT OF APPEALS\n Winslow Avenue #B, Cincinnati Ohio, 45206. Further described\n as a two story red brick multi-family building with red trim Entry to the\n building is thru [sic] a white steel door on the west side of the building.\n Entry to apartment B will be thru [sic] a brown wooden door with the\n letter B affixed to it located on the second floor, North West corner.\n {¶21} At the hearing on the motion to suppress, Officer Brians testified that\nbefore the execution of the search warrant, he knew that Whittle’s mother lived in the\n\n[SEGMENT 32]\nbottom right apartment, Whittle’s father lived in the top right apartment, an unknown\nperson lived in the bottom left apartment, and Whittle lived in the top left apartment,\nwhich was the northwest corner of the building. He identified apartment B in his\naffidavit because he relied on information from a confidential informant who told him\nthat the apartment letter was B, that it had a brown door, and that it was located on\nthe northwest corner of the second floor. He conducted BMV checks to rule out the\nother apartments.\n {¶22} When Officer Brians was asked if he searched apartment B, he replied,\n“The top, left apartment, yes.” When asked if he had checked the letters on the doors,\nhe said that he had not because SWAT officers had already cleared the apartment that\nhe described as “the goal apartment or the objective apartment [that] was the top, left\napartment in the northwest corner.” When he entered the building, he did not look at\nany of the apartments on the first floor and did not see any letters on the doors of\neither of the two apartments on the second floor.\n {¶23} The state submitted into evidence a photograph of the door taken at the\ntime of the search. It shows a brown door with no letter on it. Officer Brians stated\nthat the picture depicted the door to the apartment that was searched. On cross-\nexamination, defense counsel showed him a photo taken months after the execution\nof the warrant. Officer Brians acknowledged that the apartment on the top northwest\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ncorner of the building was not apartment B. He added, “The top northwest corner is\nwhat I considered to be apartment B when I wrote the warrant.”\n {¶24} Officer Brians also acknowledged that the photo depicted apartment B\nas being on the first floor, but he said that “I don’t know that it was that way at the\ntime of the warrant.” He also agreed with the statement that “[f]or all we know, this\n‘B’ could have been placed there by Mr. Whittle or someone else after the fact.”\n {¶25} Although the warrant in this case mistakenly listed apartment B as the\nplace to be searched, the warrant and the testimony at the suppression hearing clearly\nshowed that the premises to be searched was on the top floor of the northwest corner\nof the building, and that was the apartment that the police officers searched. Inside\nthat apartment, they found mail with Whittle’s name on it. The information known to\nthe officers as set forth in the warrant was sufficient to locate the apartment with\nreasonable efforts.\n {¶26} Further, the house had been under surveillance before the search. The\nofficer who drafted the affidavit used to obtain the warrant also participated in the\nexecution of the warrant, which diminishes the chances of a mistaken search. See\n[CITATION]. Under the\ncircumstances, we cannot hold that the trial court erred in denying Whittle’s motion\nto suppress. Therefore, we overrule his first assignment of error.\n {¶27} In his second assignment of error, Whittle contends that trial court\nerred in failing to suppress evidence “as a result of an invalid and otherwise flawed\nsearch warrant.” He argues that the search warrant was invalid because the affidavit\nin support of the warrant did not have a notary seal. This assignment is not well taken\n {¶28} R.C. 2933.23 governs the affidavit supporting a search warrant. It\nprovides,\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n A search warrant shall not be issued until there is filed with the judge or\n magistrate an affidavit that particularly describes the place to be\n searched, names or describes the person to be searched, and names or\n describes the property to be searched for and seized; that states\n substantially that the offense in relation to the property and that the\n affiant believes and has good cause to believe that the property is\n concealed at the place or on the person; and that states the facts upon\n which the affiant’s belief is based.\n {¶29} Similarly, Crim.R. 41(C)(1) provides,\n A warrant shall issue on either an affidavit or affidavits sworn to before\n a judge of a court of record or an affidavit or affidavits communicated\n to the judge by reliable electronic means establishing the grounds for\n issuing the warrant. In the case of a search warrant, the affidavit shall\n name or describe the person to be searched or particularly describe the\n place to be searched, name or describe the property to be searched for\n and seized, state substantially the offense in relation thereto, and state\n the factual basis for the affiant’s belief that such property is there\n located.\n {¶30} The affidavit supporting the warrant meets those requirements.\nNeither the statute nor the rule requires the affidavit to be notarized. Whittle\nacknowledges that the statute and the rule do not require a notary seal. Nevertheless,\nhe cites [CITATION], which requires a notary public to obtain a seal prior to the\ndischarge of his or her official duties, and [CITATION], the statute setting forth\nnotarial certificate requirements. He argues that these statutory provisions apply\nbecause under the rules of statutory construction a more specific statute controls over\n\n====== End of Document ====== OHIO FIRST DISTRICT COURT OF APPEALS\n\na more general statute. Therefore, the more specific provisions of R.C. 147.542\noverride the more general provisions of R.C. 2933.23 and Crim.R. 41. See R.C. 1.51.\n {¶31} But Whittle has it backwards. R.C. 2933.23 and Crim.R. 41 codify the\nspecific requirements for search warrants and the affidavits supporting those\nwarrants, while R.C. Chapter 147 applies to notary publics and their certifications of\ndocuments generally. Therefore, R.C. 2933.23 and Crim.R. 41 supersede R.C.\nChapter 147. See [CITATION].\n {¶32} Moreover, generally, suppression of evidence is only warranted for rule\nviolations of “constitutional magnitude.” [CITATION]. Ministerial acts should not “cause a warrant to fail.” [CITATION]. Even if a notarization of the\nwarrant was required, the affidavit was sworn to in the presence of a judge, and the\nfailure to have it notarized would not render it inadmissible by the Fourth\nAmendment. See [CITATION]. Consequently, we overrule Whittle’s second\nassignment of error.\n Other-Acts Evidence\n {¶33} In his third assignment of error, Whittle contends that the trial court\nerred in admitting evidence of the five controlled buys as he was not charged with any\noffenses as a result of those buys. He argues that it was improper character evidence\nadmitted in violation of Evid.R. 404(B). This assignment of error is not well taken.\n {¶34} The state argues and this court has held that Evid.R. 404(B) does not\napply to acts that are “not independent” of the charged crime. [CITATION].\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nHamilton No. C-210227, [CITATION], ¶ 14. Other-acts evidence is admissible\nwhen the other acts demonstrate the “setting” of a case and are part of the “immediate\nbackground” of the charged offenses. [CITATION], 1st Dist. Hamilton No. C-\n220477, [CITATION], 1st Dist. Hamilton No. C-220570,\n[CITATION], 208 N.E.3d 1043, ¶ 19 (1st\nDist.); David at ¶ 16; [CITATION], 1st Dist. Hamilton No. C-170371, [CITATION], ¶ 30.\n {¶35} Whittle did not object when evidence of the controlled buys was\npresented at trial. The failure to object precludes him from raising the issue on appeal\nunless it rises to the level of plain error. [CITATION], 3 Ohio St.3d 12, 13, 444\nN.E.2d 1332 (1983); [CITATION] 1st Dist. Hamilton No. C-120561, [CITATION], ¶ 22. An alleged error does not rise to the level of plain error unless, but for the\nerror, the outcome of the trial would have been otherwise. [CITATION], 50 Ohio\nSt.3d 114, 119-120, 552 N.E.2d 913 (1990); [CITATION], 1st Dist. Hamilton No.\nC-081237, [CITATION], ¶ 6.\n {¶36} Whittle also argues that the trial court should have excluded the\nevidence of the controlled buys under Evid.R. 403(A), which provides that relevant\nevidence is not admissible if its “probative value is substantially outweighed by the\ndanger of unfair prejudice.” We do not address whether the trial court erred in\nadmitting other-acts evidence under Evid.R. 404(B) or Evid.R. 403(A). Given the\noverwhelming evidence of Whittle’s guilt, we cannot hold that but for the admission\nof the other-acts evidence, the outcome of the trial would have been otherwise.\nTherefore, any error did not rise to the level of plain error. See [CITATION], 50 Ohio\nSt.3d at 119-120, 552 N.E.2d 913; [CITATION], 1st Dist. Hamilton No. C-081237, [CITATION], at ¶ 6. Consequently, we overrule Whittle’s third assignment of error.\n\n[SEGMENT 33]\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n Constructive Possession\n {¶37} In his fourth assignment of error, Whittle contends that “the jury\nverdicts finding Whittle guilty of all 12 offenses” were against the manifest weight of\nthe evidence. He argues that the state failed to present competent, credible evidence\nthat Whittle possessed the items found in the common areas of the basement. This\nassignment of error is not well taken.\n {¶38} A conviction requires a finding of guilt and a sentence. [CITATION], ¶ 35. Whittle was\nonly convicted of one count of trafficking in a fentanyl-related compound under R.C.\n2925.03(A)(2). Therefore, we address this assignment of error only as it relates to\nthat conviction.\n {¶39} R.C. 2925.01(K) provides that possession “means having control over\na thing or a substance, but may not be inferred solely from mere access to the thing\nor substance through ownership or occupation of the premises upon which the thing\nor substance is found.” A defendant’s possession of a thing or substance may be\nactual or constructive. [CITATION], ¶ 12. Courts have defined constructive possession as “knowingly\nexercising dominion and control over an object, even though the object is not within\nthe person’s immediate physical possession.” [CITATION], ¶ 32, citing [CITATION]. The person must be “conscious of the presence of the\nobject.” [CITATION]. The state may prove dominion and control and\nconsciousness of the object by circumstantial evidence. [CITATION].\n {¶40} In the common area of the basement, the police officers found a trash\ncan filled with “tear-offs” from plastic baggies, which was indicative of preparing\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ndrugs for sale, and more lottery tickets, the same as were recovered from the\napartment. In boxes, they found torn papers with Whittle’s name and address on\nthem, torn lottery tickets, and torn baggies. On a shelving unit, the officers found\nmore personal documents with Whittle’s name and address on them. They found\nlarge baggies of heroin and fentanyl sitting on a bookshelf.\n {¶41} In the storage bin marked “C,” they found a gray and black shirt that\nhad a bag of drugs in its pocket. They found a shotgun, and in a hole in the ceiling,\nthey found several handguns. They found digital scales, commonly used to weigh\ndrugs for sale, and bags with residual amounts of heroin, fentanyl, and other drugs.\n {¶42} Given the presence of identifying documents and other of Whittle’s\npersonal effects in the apartment where drugs were packaged for sale and other\ndocuments and personal effects in the basement, the circumstantial evidence was\nsufficient to allow the jury to infer that Whittle had constructive possession of the\nfentanyl found in the basement. Though Whittle denied knowing about any of the\ndrugs in the basement, the jury did not believe him. Matters as to the credibility of\nevidence are for the trier of fact to decide. [CITATION].\n {¶43} After reviewing the record, we cannot hold that the trier of fact lost its\nway and created such a manifest miscarriage of justice that we must reverse Whittle’s\nconviction and order a new trial. Therefore, the conviction was not against the\nmanifest weight of the evidence. See [CITATION]. We overrule Whittle’s fourth assignment of error.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n Right to Counsel\n {¶44} In his fifth assignment of error, Whittle contends that the trial court\nerred in failing to grant his request to fire counsel or to at least investigate whether\nnew counsel was appropriate or whether he should be permitted to represent himself.\nThis assignment of error is not well taken.\n {¶45} The record shows that Whittle changed counsel numerous times over\nthe course of the proceedings. At the sentencing hearing, Whittle announced that he\nwanted to fire his counsel. He stated, “I asked for a few things that I needed and he\ndidn’t get it.” The court replied, “No. He is with you through this case * * *.” Whittle\nadded that he wanted to fire his counsel before trial, but that the court “didn’t give\nme a chance to,” to which the court replied that Whittle’s assertion was false. As the\ncourt started to proceed on the sentencing hearing, Whittle asked, “I can’t fire my\nlawyer?” To which the court replied, “Not at a sentencing on a case where the\nsentence is predetermined by law.”\n {¶46} The Sixth Amendment right to counsel, implicitly embodies a\n“correlative right to dispense with a lawyer’s help.” [CITATION], ¶ 23, quoting [CITATION]. A defendant in a\ncriminal trial has an independent constitutional right to represent himself at trial\nwithout counsel when the defendant knowingly, voluntarily chooses to waive counsel.\n[CITATION],\n¶ 5.\n {¶47} A criminal defendant must “unequivocally and explicitly invoke” the\nright to self-representation. [CITATION], ¶ 29. The record does not show that Whittle unequivocally invoked his\nright to self-representation. Further, the request to waive counsel must be timely\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nmade. [CITATION]. A\nmotion to waive counsel at the sentencing hearing is not timely. Therefore, the trial\ncourt did not err in refusing to allow Whittle to represent himself and proceed pro se\nat the sentencing hearing.\n {¶48} Further, the trial court did not err in failing to investigate whether new\ncounsel should be appointed. An indigent defendant has the right to competent,\neffective representation, but not to have the counsel of his or her choice. [CITATION]. “[A] an indigent defendant has no right to have\na particular attorney represent him and therefore must demonstrate ‘good cause’ to\nwarrant substitution of counsel.” [CITATION], quoting [CITATION].\nWe review the trial court’s decision to deny a motion for substitute counsel under an\nabuse-of-discretion standard. [CITATION].\n {¶49} The record shows that Whittle had changed attorneys several times,\nand the request to fire his attorney was not timely made. The record does not support\nhis assertion that he wanted to fire counsel before the trial. Under the circumstances,\nwe cannot hold that the trial court abused its discretion in denying Whittle’s motion.\nFurther, even if the court had erred, the court had no choice but to impose a\nmandatory prison term. See R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b). Therefore,\nany error was harmless. See Crim.R. 52(A). We overrule Whittle’s fifth assignment\nof error.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶50} Finally, in his sixth assignment of error, Whittle contends that he was\ndenied the effective assistance of counsel. He argues generally that counsel failed to\nobject to improper testimony. He claims that he was prejudiced because an appellate\ncourt could only review it for plain error. This assignment of error is not well taken.\n {¶51} A court will presume that a properly licensed attorney is competent,\nand the defendant bears the burden to show ineffective assistance of counsel. [CITATION]. To sustain a claim for\nineffective assistance of counsel, the defendant must demonstrate that counsel’s\nperformance was deficient and that the deficient performance prejudiced the defense.\n[CITATION]. Counsel’s failure to object is not, by itself, enough to sustain\na claim for ineffective assistance of counsel. [CITATION].\n {¶52} Whittle fails to specify where counsel was ineffective for failing to\nobject. The appellant bears the burden to show error by reference to the record. To\nbe considered on appeal, errors by a trial court must be argued and supported by legal\nauthority and citation to the record. App.R. 16(A); [CITATION]. “If an argument exists that can support [an]\nassignment of error, it is not this court’s duty to root it out.” [CITATION],\nquoting [CITATION]. Therefore, we decline to address Whittle’s argument. See [CITATION]. Consequently, we overrule Whittle’s sixth\nassignment of error and affirm the trial court’s judgment.\n Judgment affirmed.\nZAYAS, P.J., and KINSLEY, J., concur.\nPlease note:\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nThe court has recorded its own entry this date.\n "},"Task":{"kind":"string","value":"Attributing"},"System_msg":{"kind":"string","value":"You are given a context and an instruction. Respond to the instruction based on the context."},"User_msg":{"kind":"string","value":"### Context:\n[SEGMENT 1]\n[Cite as [CITATION].]\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n STATE OF OHIO, : APPEAL NOS. C-230508\n C-230509\n Plaintiff-Appellee, : TRIAL NOS. B-2006193\n B-2204564\n vs. :\n PERCY ROSS, : O P I N I O N.\n Defendant-Appellant. :\n\n\nCriminal Appeals From: Hamilton County Court of Common Pleas\nJudgments Appealed From Are: Affirmed\nDate of Judgment Entry on Appeal: August 16, 2024\n\n\nMelissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,\nAssistant Prosecuting Attorney, for Plainitff-Appellee,\nArenstein & Gallagher and William R. Gallagher, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS\n\nWINKLER, Judge.\n {¶1} Defendant-appellant Percy Ross was indicted for two counts of murder\nunder [CITATION], with accompanying firearm specifications, one count\nof felonious assault under [CITATION], also with accompanying firearm\nspecifications, and one count of having weapons under a disability under [CITATION]. Ross elected to have a bench trial on the weapons-under-a-disability\ncount. The trial court found him guilty, but continued the matter for sentencing. At a\njury trial on the remaining three counts, Ross claimed that he acted in self-defense.\nThat trial ended with a hung jury.\n {¶2} Subsequently, he was indicted for one count of tampering with evidence\nunder [CITATION], with an accompanying firearm specification. The trial court\nconsolidated the two cases for trial. After a second jury trial, Ross was found guilty of\none count of murder, one count of felonious assault, and one count of tampering with\nevidence, and all of their accompanying specifications. The jury acquitted him on one\nof the murder counts. The trial court again found him guilty of the weapons-under-\ndisability charge.\n {¶3} The trial court merged the felonious assault count with the murder\ncount, as well as some of the firearm specifications. It sentenced Ross to serve an\naggregate sentence of 21 years to life in prison on the murder charge. It also sentenced\nhim to 36 months’ incarceration on the having-weapons-under-disability charge, and\nfour years’ imprisonment on the tampering-with-evidence charge, both to be served\nconsecutively to the sentence on the murder charge. This appeal followed. We find\nno merit in Ross’s five assignments of error, and we affirm his convictions.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n I. Factual Background\n {¶4} The record shows that on November 22, 2020, at about 4:00 a.m., police\nreceived a 911 call about a shooting at a four-unit apartment building at 7815 New\nBedford Avenue in Roselawn. Upon arrival, the responding officers found the body of\nElias Tsibouris lying at the bottom of a set of stairs in front of the main entrance to the\nbuilding.\n A. Cab Driver’s Testimony\n {¶5} Cab driver Stanley Asberry made the 911 call. He testified that he picked\nup Tsibouris at about 3:00 a.m. in Roselawn. Tsibouris was a regular customer of the\ncab company, and Asberry stated that he was “a nice guy” and that he “liked him so\nmuch.” Tsibouris asked Asberry to drive him a short distance to pick up his girlfriend,\nCarlee Otten, at 7815 New Bedford Avenue and then drive them to another location.\n {¶6} Upon arriving at that address, Asberry parked across the street from the\nbuilding. Tsibouris said that his girlfriend would be coming out shortly. After waiting\nabout 15 minutes, Tsibouris called her, and she said she was coming. When she did\nnot, he walked to the front door of the building and knocked, calling out for her.\nAsberry said that Tsibouris did not seem angry or aggressive, just irritated that she\nhad not come out of the building.\n {¶7} When his girlfriend did not respond, Tsibouris walked to the back of the\nbuilding, while trying to reach her on the phone. Asberry remained seated in his cab.\nHe had to look through the front passenger seat window, which was rolled down, to\nsee the building’s front door, which was situated about 25 feet up from the curb. The\nfront lights of the building were on.\n {¶8} When Tsibouris came back to the front door, Asberry asked him what\nwas taking so long. Tsibouris turned and looked at Asberry. He said that his girlfriend\nhad called, and she was coming out. Then, Asberry saw the front door of the building\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nopen, Tsibouris “turned around, and he was surprised, and pow.” Asberry said that\nTsibouris’s hands were down, and he was only holding his cell phone, not any\nweapons. He added that there was “no conversation, no nothing.” When the door\nopened, “there was a pow. . . . [H]e was not trying to get into the apartment. I never\nseen him grab the doorknob or anything. He knocked on the door a few times, that’s\nall.” Asberry added that was no time for any interaction between Tsibouris and the\nshooter.\n {¶9} Tsibouris fell down, and the front door closed. Asberry saw a man run\nup the steps inside the building to go into the apartments on the top floor. He\ndescribed the shooter as an older gentleman with close-cut, salt-and-pepper hair, who\nwas a little taller than him.\n {¶10} Asberry then drove about a quarter of a mile away and called the cab\ncompany. He was told not to get involved, but he stated that “I like this guy. I’m not\ngoing to go just leave him laying there like that.” Afterwards, he was rattled and drove\nhome. Later that morning, he met with homicide detectives.\n B. The Police Investigation\n {¶11} Criminalist Jimmy Pham generated a diagram of the crime scene that\nshowed blood stains going from the landing where Tsibouris had been shot and down\nthe steps to where he was found lying in the front yard. He identified a 9 mm shell\ncasing found underneath the bushes in the front yard. While casings from most\nfirearms eject to the right, he said that there was no way to determine how the casing\nended up there.\n {¶12} Pham stated that no blood was found inside the doorway or in the\ncommon area of the building where the shooter had stood when he fired the gun.\nPham documented a pool of blood on the landing outside the front door, several feet\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nfrom the threshold. He also documented blood spots going down each step from the\nlanding, consistent with Tsibouris rolling or sliding down the steps after being shot.\n {¶13} Detective Greg Gehring arrived at the scene shortly before 5:30 a.m.\nAfter he spoke with Asberry, residents of the building, and the landlord, the\ninvestigation became centered on apartment three. Although the apartment was\nleased to another individual, the landlord stated that a person she knew as “Pee Wee”\nwas residing there. Pee Wee was later determined to be Ross. The police prepared a\nsearch warrant and brought in a SWAT team. A negotiator from the SWAT team\ncontacted Ross, who returned to the scene. Ross agreed to speak to police at their\noffice.\n {¶14} Ross denied any involvement in the shooting. He told the detectives\nthat he had been lying down when he heard someone banging on the door. He walked\nout into the hallway, and he saw a “guy he knew of” when he looked down the stairs.\nHe walked back into his apartment to call 911 when he heard a gunshot. He said that\na woman named Linda was with him in the apartment, and he and Linda left the\napartment. The detectives determined that his story was all lies. There was no woman\nnamed Linda, and the person in the apartment with Ross was Otten. Detective Gehring\nstated that Ross was at their office a long time, a “matter of hours.” During that time,\nRoss never mentioned that he acted in self-defense.\n {¶15} Dr. Anne Laib, a forensic pathologist and deputy coroner with the\nHamilton County Coroner’s Office, performed an autopsy on Tsibouris. She\ndetermined that Tsibouris was 44 years old, was five feet eleven inches tall, and\nweighed 337 pounds. She testified that his cause of death was a gunshot wound to the\nhead.\n {¶16} Dr. Laib further testified that there was a muzzle imprint on Tsibouris’s\nhead, which meant that the murder weapon had been “pressed firmly and forcefully\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nagainst the skin” when it was fired. She found soot and gunpowder deep within the\nwound, which only happens when a gun is pressed against the skin. The bullet traveled\nthrough Tsibouris’s right eye, the base of his skull, and through his brain. It exited\n\n[SEGMENT 2]\nthrough the upper left skull behind his left ear. Dr. Laib also found that the left sides\nof Tsibouris’s arm, shoulder and leg were scraped and bruised, consistent with him\nfalling on his left side.\n {¶17} A toxicology report showed that Tsibouris had fentanyl and cocaine in\nhis system at the time of his death. Dr. Laib testified that he was “acutely intoxicated,”\nwhich means that the drugs were still in their “unbroken down form in the body.” She\nfurther stated that at the time he was shot, he was under the influence of those drugs,\nbut she clarified that she could not say how he metabolized those drugs or how they\naffected his behavior the night of the shooting.\n C. Ross’s Testimony\n {¶18} The State introduced Ross’s testimony from the previous trial into\nevidence. Ross stated that he had gotten out of prison in August 2020, and that he\nwas on postrelease control. The conditions of his postrelease control required him to\nstay away from hard drugs and guns. He lived in his nephew’s apartment at 7815 New\nBedford Avenue while his nephew was in prison. The landlord was his nephew’s best\nfriend and allowed Ross to perform various tasks in the building in lieu of rent.\n {¶19} At some point prior to November 14, 2020, Carlee Otten moved in with\nRoss and spent most nights there. She was a drug addict, who used, among other\nthings, crack, heroin, and fentanyl. Ross said that he knew that she used drugs in her\nroom, but he allowed her to move in because he thought it was safer for her than being\non the street.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶20} Ross also knew that Otten spent time with Tsibouris, and Otten told\nRoss that she had taken $3,800 from him. At one point, Ross drove Otten to see\nTsibouris, and when he did not hear from her in several days, he became concerned.\nAfter Ross told Tsibouris that he would call the police if he did not hear from Otten,\nhe received a call from her, asking him to pick her up. She told Ross that Tsibouris\nhad “kept her hostage.”\n {¶21} At about 3:30 a.m. on November 14, 2020, Ross was asleep in his\napartment when he heard “boom, boom,” and a crash. Then he heard banging on his\napartment door. When Ross looked through the peephole, he saw Tsibouris standing\nthere. Otten was standing behind Ross. As he ran to the kitchen to get a butcher knife,\nOtten said, “Let me get him out of here.” Ross opened the door to let her out, then\nslammed it shut, and locked it. Otten left with Tsibouris. Subsequently, Ross\ndiscovered Tsibouris had kicked in the Plexiglass window to the left of the door to the\nbuilding and reached inside to open the door.\n {¶22} After Ross told his nephew about that incident, he told Ross that he had\na gun in a shoebox on a shelf in his bedroom. Ross retrieved the gun. He said that he\nhad no confidence that the entryway door would keep someone from entering the\nbuilding.\n {¶23} Ross did not see or hear from Tsibouris again until the early morning\nhours of November 22, 2020. He said that he had been “smoking weed” all night, fell\nasleep, and awakened to the sound of someone banging on the front door of the\napartment building. He looked out the window and saw a cab. He thought it might be\nfor his downstairs neighbors in apartment two. When he asked Otten if she knew who\nit was, she said no.\n {¶24} A few minutes later, Ross heard “boom, boom, boom, boom.” He said\nthe vibration shook the building. The pounding went on for about ten minutes. He\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nthought that he should see what was going on, so he “instinctively” grabbed the gun,\nalthough he knew he was violating the conditions of his postrelease control. As he\nwalked down the stairs, he did not see anyone at the door, even though there were two\nwindows on either side of the front door.\n {¶25} Ross reached with his left hand to open the door, which swung out left\nto right, with the gun in his right hand. At that moment, he was shocked and scared\nto see Tsibouris. Ross asked Tsibouris, “What are you doing here?” Tsibouris asked,\n“Where is Carlee?” Ross remained inside the doorway because Tsibouris was blocking\nthe entry. Ross told him, “Get out of here. Man, don’t come in here.” When he did\nnot leave, Ross told him again, “Don’t come in here.” Tsibouris again asked for Otten.\nRoss testified that the more times he told Tsibouris to go away, the angrier he got.\n {¶26} Tsibouris came toward Ross with his shoulder lowered like he was going\nto “swing at me, throw a punch or something and hit me.” As Tsibouris came toward\nhim, Ross moved back, angling away from him. Ross said that Tsibouris, who was\nyounger and much larger than Ross, “was looking crazy.” Ross thought there was no\nway he could beat Tsibouris. As Tsibouris came closer to him, Ross raised his right\nhand with the gun to shoot. When the gun went off, he and Tsibouris were so close to\neach other that they touched. Ross did not know if he pulled the trigger intentionally\nor accidentally. He said that “it just happened to0 fast.”\n {¶27} After the gunshot, Ross could not see Tsibouris. He stepped through\nthe doorway and saw him lying at the bottom of the steps. He admitted that although\nhe had said that Tsibouris was coming toward him, Tsibouris never made it to the\nthreshold of the front door and fell backwards.\n {¶28} Ross, who claimed that he had never shot anyone, panicked. He ran\nupstairs, changed his shoes, put on a black tee shirt and sweatshirt, and grabbed a\njacket. He told Otten, “We got to get out of here.” Otten stated that there was a warrant\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nfor her arrest, so she went with him. He drove down Summit Road and got rid of the\ngun by throwing it out of his car into a wooded area. He said that even though Otten\nwas with him, she did not see where he threw the gun.\n D. Otten’s Testimony\n {¶29} The defense presented Otten’s testimony from the previous trial. She\nadmitted that she was addicted to fentanyl, heroin, and cocaine at the time. She was\nin a relationship with Tsibouris, who was also an addict. Because they were homeless,\nthey often stayed in Tsibouris’s car, in hotels, or outside. Tsibouris’s drug of choice\nwas cocaine.\n {¶30} In November 2022, Otten often stayed at the apartment where Ross was\nliving. She had a sexual relationship with Ross, who supplied her with drugs. She\nadmitted that she was scheming with both Tsibouris and Ross to get as many drugs\nfrom both of them as she could.\n {¶31} The night before the shooting, Otten said she was going to leave some\ncocaine for Tsibouris in a grill in front of Ross’s apartment, and he was going to leave\nsome fentanyl for her in exchange. She led Tsibouris to believe that they were going\nto be paid a lot of money for the drugs that they would sell. But she put white power\nin the grill, and after Tsibouris retrieved it, he realized that he had been scammed.\n {¶32} Tsibouris left the area but returned in a cab and waited outside for\nOtten. He texted her, “Cab getting off highway,” and “Cab here.” In the meantime,\nshe had gone upstairs and had fallen asleep after using the fentanyl. Tsibouris texted\nher repeatedly and asked why she wasn’t coming down. When he received no answer,\nhe texted, “Plan B about to happen. We are out front; in 30 seconds I’m coming in.”\nHe walked to the front door of the building and began knocking loudly enough to wake\nher. She texted him, telling him to go away.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶33} Otten said that Ross woke up and went downstairs to see who was\nmaking all the noise. She texted Tsibouris and told him, “He’s coming. Get off the\nfuckin door.” Tsibouris responded, “BRING THE MONEY.” She said that she was in\nthe kitchen making toast when she heard Ross say, “Who is it?” and tell Tsibouris to\nleave. Then she heard a gunshot. Ross returned upstairs and told her that they needed\nto leave. He also told her that “he did not mean to do it.” Otten said she left, because\nshe was afraid of “being charged.” She also told police that Ross had threatened her\n\n[SEGMENT 3]\nand her loved ones. When they left through the front door, she did not look at anything\nand did not notice Tsibouris’s body.\n II. Ineffective Assistance of Counsel\n {¶34} In his first assignment of error, Ross contends that he was denied the\neffective assistance of counsel. He argues that his counsel was ineffective for failing to\nobject to and to seek redactions of Ross’s prior testimony, which was inadmissible\nunder Evid.R. 404(B) and 609(A)(2). This assignment of error is not well taken,\n {¶35} A court will presume that a properly licensed attorney is competent, and\nthe defendant bears the burden to show ineffective assistance of counsel. [CITATION]. To sustain a claim for ineffective assistance of counsel, the defendant must\ndemonstrate that counsel’s performance was deficient, and that the deficient\nperformance prejudiced the defense. [CITATION].\n {¶36} To establish that counsel’s performance was deficient, the defendant\nmust show that counsel’s representation fell below an objective standard of\nreasonableness. [CITATION]. Judicial scrutiny of\ncounsel’s performance must be highly deferential. The defendant must overcome the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\npresumption that, under the circumstances, the challenged action might be considered\nsound trial strategy. [CITATION] at 689; Hackney at ¶ 37. A defendant is not deprived\nof the effective assistance of counsel when counsel chooses, for strategic reasons, not\nto pursue every possible trial tactic. [CITATION], 38 Ohio St.3d 305, 319 (1988);\nHackney at ¶ 37.\n {¶37} To establish prejudice, a defendant must show that there is a reasonable\nprobability that but for counsel’s unprofessional errors, the result of the proceeding\nwould have been different. [CITATION] at 694; Hackney at ¶ 38. Prejudice from\ndefective representation sufficient to justify reversal of a conviction exists only where\nthe result of the proceeding was unreliable or fundamentally unfair because of\ncounsel’s performance. [CITATION], 506 U.S. 364, 369-370 (1993); [CITATION], 72 Ohio St.3d 545, 558 (1995); Hackney at ¶ 38.\n A. Counsel’s Failure to Object\n {¶38} Ross argues that his counsel was ineffective for failing to object to\ntestimony on cross-examination about Ross’s 30-year-old convictions and his\nviolations of the conditions of his postrelease control. First, we note that counsel’s\nfailure to make objections is not, by itself, enough to sustain a claim of ineffective\nassistance of counsel. [CITATION], 2006-Ohio-791, ¶ 168; Hackney, 2016-Ohio-\n4609, at ¶ 39 (1st Dist.).\n {¶39} Generally, the prosecution in a criminal case may not present evidence\nthat the defendant has committed other crimes or acts independent of the crime for\nwhich the defendant is being tried to establish that the defendant acted in conformity\nwith his bad character. Evid.R. 404(B); [CITATION], 2013-Ohio-5386, ¶ 20 (1st\nDist.). But Evid.R. 404(B) provides that other bad acts are admissible to show\n“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nmistake or accident.” [CITATION]; Thomas at ¶ 20.\n {¶40} Because Evid.R. 404(B) codifies an exception to the general rule, it must\nbe strictly construed against admissibility. [CITATION]; Thomas at ¶ 21. Nevertheless, the other acts need not be similar to the crime\nat issue. If the other acts tend to show by substantial proof any of the items\nenumerated in Evid.R. 404(B), evidence of the other acts is admissible. [CITATION]; Thomas at ¶ 21.\n {¶41} Evid.R. 609 governs impeachment of a witness’s credibility through\nadmission of a prior criminal conviction. [CITATION]. Evid.R. 609(A)(2) provides,\n Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),\n evidence that the accused was convicted of a crime is admissible if the\n crime was punishable by death or imprisonment in excess of one year\n pursuant to the law under which the accused was convicted and if the\n court determines that the probative value of the evidence outweighs the\n danger of unfair prejudice, of confusion of the issues, or of misleading\n the jury.\n Evid.R. 609(B) states,\n Evidence of a conviction under this rule is not admissible if a period of\n more than ten years has elapsed since the date of conviction or of the\n release from confinement, or the termination of community control\n sanctions, post-release control, probation, parole, or judicial release\n imposed for that conviction, whichever is the later date, unless the court\n determines, in the interests of justice, that the probative value of the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n conviction supported by specific facts and circumstances substantially\n outweighs its prejudicial effect.\n {¶42} The record shows that Ross’s testimony was presented by defense\ncounsel in the first trial. On direct examination, Ross’s counsel began by having Ross\nacknowledge that he had lied to the police when he was questioned about the murder.\nRoss admitted that he had lied, but he said that he was ready to tell the truth at trial.\nCounsel asked if this was the first time Ross had ever been charged with a crime. Ross\nacknowledged that he had other convictions for drug-related offenses that had\nresulted in prison terms.\n {¶43} Then, defense counsel asked him about his most recent time in prison,\nand Ross replied that he had been released in August 2020. He testified that he was\nsubject to postrelease control. The conditions of postrelease control were that he could\nnot have contact with the police under any circumstances, and that he could not be\naround hard drugs or guns. He acknowledged that he had violated those conditions.\n {¶44} While still on direct examination, Ross asked if he could say something.\nHe stated, “I’m 65 years old at the time. Man, I ain’t never shot nobody. I ain’t never\nkilled nobody. I ain’t never stabbed nobody. I ain’t never cut nobody. I don’t carry\nmyself like that. I ain’t never hurt nobody, I mean never in my life, my 65 years.”\n {¶45} On cross-examination, the state asked about his previous convictions,\nespecially violent offenses. The state asked, “This is not the first time you’ve been\nconvicted for a felony weapon conviction.” Ross replied, “N0.” He added that he had\nbeen released from prison in 2020 for a crime that involved a gun. The prosecutor\nasked, “You’ve been convicted multiple times of assault on a police officer, isn’t that\ncorrect?” Ross replied, “That was about 30 years ago.” He also stated that he had\npleaded guilty “just to get it over with.”\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶46} The State also asked him about the conditions of his postrelease control.\nThen the State asked him, “So we already know you’ve been out of prison for about\nthree months, and you’ve already committed two crimes?” Ross replied, “Okay. Yes,\nI have. It’s my fault.” The State then asked him, “When you grabbed that gun, you\nwalked down the stairs, you knew you were committing a crime?” He replied, “Yes, I\ndid.”\n {¶47} In the previous trial, Ross was a defense witness, testifying on his own\nbehalf. His previous testimony was presented by the State in this trial. Nevertheless,\nhis trial strategy in both trials was to be candid about his previous convictions and\nother bad acts to enhance his credibility to the jury on his self-defense claim. He\nadmitted that he lied to police because he knew he was on postrelease control, and he\ndid not trust the police or understand that he could raise self-defense. In doing so, he\nopened the door to questions about his previous convictions.\n {¶48} A defendant may introduce testimony, through himself or others, of a\nrelevant character trait that would tend to prove he acted in conformity therewith on\na particular occasion. Evid.R. 404(A)(1). By introducing that evidence, the defendant\n“opens the door” for the prosecution, which is then permitted to rebut or impeach this\ncharacter evidence on cross-examination under Evid.R. 405(A). That cross-\nexamination may include inquiry into relevant specific instances of conduct. [CITATION]\n {¶49} Ross specifically put his character for peacefulness at issue through his\nvoluntary statement that he had never shot, killed, stabbed or cut anyone. See id. at ¶\n41. Convictions over ten years old can be admissible under Evid.R. 609(B) if the\n“probative value of the conviction supported by specific facts and circumstances\nsubstantially outweighs its prejudicial effect.” Arguably, the convictions for assaulting\na police officer were relevant to Ross’s claims that he was not violent, but we question\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nwhether asking about 30-year-old convictions was proper. Nevertheless, the\n\n[SEGMENT 4]\nquestions about those convictions were brief, and they were not unfairly prejudicial.\n {¶50} Questionable trial strategies and tactics do not rise to the level of\nineffective assistance of counsel. [CITATION]. Simply\nbecause there was “another and better strategy available” did not mean that counsel\nprovided ineffective assistance. Id. at ¶ 19, quoting [CITATION].\n49 (1980). Consequently, we overrule Ross’s first assignment of error.\n B. Counsel’s Failure to Request a Limiting Instruction\n {¶51} In his second assignment of error, Ross again contends that he was\ndenied the effective assistance of counsel. He argues that defense counsel’s failure to\nrequest a limiting instruction and final jury instruction regarding the limited purpose\nfor which the jury could consider his prior convictions, prior inconsistent statements,\nand prior bad acts constituted ineffective assistance. This assignment of error is not\nwell taken.\n {¶52} The failure to request limiting instructions on the use of an offender’s\nprior convictions does not, in and of itself, indicate ineffective assistance of counsel.\n[CITATION],\n¶ 17 (12th Dist.). Generally, the failure to request jury instructions is purely a matter\nof trial tactics and will not be disturbed on appeal. [CITATION],\n¶ 11 (9th Dist.). “This is especially so in cases where the jury instruction at issue\nwould have undermined or been inconsistent with the defense’s theory of the case.”\n[CITATION].\n {¶53} The theory of Ross’s defense was that while he had made mistakes in the\npast and lied to police, once he took responsibility for his actions, he told the truth. He\nalso asserted that he lied to the police because he knew he had violated the conditions\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nof his postrelease control, and he did not trust the police or know that he could have\nraised self-defense. A limiting instruction would be inconsistent with his defense\nbecause his counsel had brought up the prior convictions as a trial strategy.\n {¶54} Ross has not overcome the presumption that his counsel’s failure to\nrequest a limiting instruction was a matter of trial strategy. See [CITATION], at ¶ 25; [CITATION] at ¶ 15; [CITATION] at ¶ 16-17. Because Ross has not shown that his\ncounsel’s performance was deficient, we need not consider the issue of prejudice.\nConsequently, we overrule Ross’s second assignment of error.\n III. The Court’s Failure to Sua Sponte Give a Limiting Instruction\n {¶55} In his third assignment of error, Ross contends that the trial court\ncommitted plain error in failing to give limiting or final jury instructions sua sponte\nregarding the limited purpose for which the jury could consider the character\nevidence. He argues that the trial court’s failure to do so deprived him of his right to\ndue process and a fair trial. This assignment of error is not well taken.\n {¶56} A court need not sua sponte give a limiting instruction every time other-\nacts evidence is presented. “Depending on the nature of the other-acts evidence and\nthe context in which it is used, defense counsel may as a matter of strategy wish to\navoid highlighting the evidence for the jury.” [CITATION], ¶ 67. The decision not to request a limiting instruction “is sometimes a tactical one,”\nand the Ohio Supreme Court has stated that it does not “wish to impose a duty on the\ntrial courts to read this instruction when it is not requested.” [CITATION], fn. 9.\n {¶57} Because trial counsel did not request a limiting instruction, the trial\ncourt was not required to give the jury a limiting instruction concerning the other-acts\nevidence. See [CITATION], ¶ 54 (5th Dist.). Therefore, the court\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ndid not err in failing to give a limiting instruction, much less commit plain error. We\noverrule Ross’s third assignment of error.\n IV. Speedy Trial\n {¶58} In his fourth assignment of error, Ross contends that the trial court\nerred in denying his motion to dismiss the tampering-with-evidence indictment. He\nargues that that indictment violated his right to a speedy trial. This assignment of\nerror is not well taken.\n {¶59} Our review of the trial court's decision involves mixed questions of fact\nand law. [CITATION], ¶ 8 (1st Dist.). We give due weight to\nthe inferences drawn from the facts found by the trial court as long as they are\nsupported by competent, credible evidence. We review the trial court’s conclusions of\nlaw de novo to determine whether the facts satisfy the applicable legal standard. [CITATION], ¶ 5 (1st Dist.).\n {¶60} Ohio has codified a defendant’s right to a speedy trial in R.C. 2945.71.\n[CITATION] at ¶ 11. Under R.C. 2945.71(C)(2), a person charged with a felony must be\ntried within 270 days from his arrest. In [CITATION],\nthe Ohio Supreme Court held, “When new and additional facts arise from the same\nfacts as did the original charge and the state knew of such facts at the time of the initial\nindictment, the time within which trial is to begin on the additional charge is subject\nto the same statutory limitations period that is applied to the original charge.”\n {¶61} The Supreme Court later distinguished [CITATION]. It held that the State, in issuing a second indictment against\nthe defendant, was not subject to the speedy-trial time limits of the original indictment\nbecause the subsequent charges were based on new and additional facts that the State\ndid not know at the time of the original indictment. Id. at syllabus. It stated,\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n“Additional crimes based on different facts should not be considered as arising from\nthe same sequence of events for the purposes of speedy-trial computation.” Id. at 111.\n {¶62} “[A] case by case analysis is necessary when applying the new-and-\nadditional-evidence standard elucidated by Baker.” [CITATION]. In this case, on December 1, 2020, a grand jury indicted Ross for two\ncounts of murder, felonious assault, and having weapons under a disability. The first\ntrial ended with a hung jury on the two murder counts and the felonious-assault count.\nOn September 21, 2022, the state indicted Ross on one count of tampering with\nevidence. The trial court consolidated the two indictments for trial. Following several\ncontinuances, most of which were at Ross’s request, the trial began on August 15, 2023,\nwell over 270 days from the original indictment.\n {¶63} In his motion to dismiss for lack of a speedy trial, Ross argued that the\nState knew or should have known that he had disposed of the gun he used to shoot\nTsibouris. First, the police did not find a gun at the scene of the shooting. Second,\npolice spoke to Otten on November 24, 2020, and she stated that Ross had told her\nthat the gun was gone.\n {¶64} Even though the State knew the gun was missing, it had no knowledge\nof what exactly had happened to it. During his interview with the police, Ross denied\nthat he was involved in the shooting. Although Otten testified that Ross had told her\nthe gun was gone, she did not know any further details. She stated, “Yes, someone got\nrid of it. He got rid of it, or whatever, but it wasn’t going to be found.” That statement\nalone was not sufficient to support an indictment for tampering with evidence. A mere\nsuspicion based on some evidence is not enough to say that the second indictment was\nbased on information known to the State at the time of the original indictment. See\n[CITATION].\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶65} It was not until Ross testified in the first trial that the State learned that\nRoss had thrown the gun into a wooded area near the scene. Consequently, the State\nwas not subject to the speedy-trial time limits of the original indictment because the\nsecond indictment was based on new and additional facts that the State did not know\nat the time of the original indictment. Therefore, we overrule Ross’s fourth assignment\nof error.\n V. Self-Defense\n {¶66} In his fifth assignment of error, Ross contends that the jury verdicts\nfinding him guilty of counts two and three, felonious assault and murder, were against\nthe manifest weight of the evidence. He argues that the state failed to prove that he\nwas not acting in self-defense. This assignment of error is not well taken.\n {¶67} As a preliminary matter, the jury found him guilty of felonious assault\nin count two of the indictment. But the trial court merged that count with count three,\none of murder charges. A conviction requires a finding of guilt and sentence. [CITATION]. So even though the jury found him guilty\nof felonious assault, there was no conviction because the trial court merged it with the\nmurder count. See [CITATION]. Therefore, we\naddress this assignment of error only in relation to the murder conviction.\n {¶68} Generally, the elements of self-defense in cases of deadly force are: (1)\nthe defendant did not create the situation giving rise to the affray; (2) the defendant\nhad a bona fide belief that he was in imminent danger of death or great bodily harm;\n\n[SEGMENT 5]\nand (3) the defendant did not have a duty to retreat or avoid danger. [CITATION]. The\nelements of self-defense are cumulative, and a defendant’s claim of self-defense fails\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nif any one of the elements is not present. [CITATION].\n {¶69} In 2018, the Ohio legislature modified R.C. 2901.05 to change the\ntreatment for the use of force in self-defense and to add a new burden-shifting\nprovision. [CITATION]. The statute\nwas amended again in 2021, but that amendment did not substantively change the\napplicable provisions. We apply the statute in effect at the time of the offense. See\n[CITATION].\n {¶70} Under the applicable former version of R.C. 2905.01(B)(1), the\ndefendant had the initial burden of production to present evidence that “tends to\nsupport” a claim of self-defense. [CITATION]. While the “tends to support” language was a “new feature” in the 2018\namendment of the statute, that phrase did not change the defendant’s burden of\nproduction. [CITATION]. The defendant must produce evidence\nthat, when viewed in the light most favorable to the defendant, is sufficient to create a\nreasonable doubt as to guilt. [CITATION], both citing [CITATION]. “The question of\ncredibility is not to be considered.” [CITATION], quoting [CITATION].\n {¶71} The burden of going forward with evidence is met when evidence, if\ntrue, “would raise a question in the minds of reasonable jurors concerning the\nexistence of such issue.” [CITATION]. To meet the\nburden of production, the defendant must produce evidence that “when viewed in a\nlight most favorable to the defendant is sufficient to cast a reasonable doubt as to\nguilt.” [CITATION].\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶72} Once the defendant met this burden of production, former R.C.\n2901.05(B)(2) shifted the burden of persuasion to the prosecution. As a result, the\nprosecution does not assume the burden of persuasion until the defendant first meets\nhis or her burden of production. [CITATION] at ¶ 7; [CITATION], 2020-Ohio-5245, at ¶ 7 (1st\nDist.). The prosecution must produce evidence to disprove one of the elements of self-\ndefense beyond a reasonable doubt. [CITATION] at ¶ 19; [CITATION] at ¶ 7. We review de novo\nwhether the trial court applied the proper legal standard and whether evidence of self-\ndefense was sufficient to shift the burden to the prosecution. [CITATION] at ¶ 5.\n {¶73} The State only needs to disprove one of the elements of self-defense\nbeyond a reasonable doubt. [CITATION], 2020-Ohio-4976, at ¶ 51 (1st Dist.). Therefore, in\nevaluating a manifest-weight challenge involving self-defense, we must review the\nentire record, consider the credibility of the witnesses, and determine whether the trier\nof fact lost its way and created a manifest miscarriage of justice with respect to its\nfinding that the State disproved at least one of the elements of self-defense beyond a\nreasonable doubt. [CITATION], 2024-Ohio-1256, at ¶ 255 (1st Dist.); [CITATION] at ¶ 51. Ross\npresented evidence that tended to show that he acted in self-defense. So, the burden\nof persuasion fell to the State.\n {¶74} The State proved beyond a reasonable doubt that Ross did not have a\nbona fide belief of imminent danger. This element has both objective and subjective\ntests. [CITATION] at ¶ 56. A defendant’s belief that he was in immediate danger of death or\ngreat bodily harm must be objectively reasonable, and the defendant must have an\nhonest belief that he was in danger. [CITATION], ¶ 43 (1st Dist.);\n[CITATION] at ¶ 56. The state may disprove self-defense by demonstrating that the\ndefendant’s belief was not objectively reasonable or that he did not have an honest\nsubjective belief that he faced imminent death or great bodily harm. [CITATION] at ¶ 56.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶75} Ross argues that he was 65 years old and weighed 160 pounds at the\ntime of the shooting. Tsibouris, on the other hand, was 20 years younger and about\n150 pounds heavier, and had a substantial amount of drugs in his system. Ross had\nseen the damage that Tsibouris had done to the window by the apartment door to\nobtain access only a week before.\n {¶76} Ross testified that Tsibouris was agitated. He ignored Ross’s repeated\norders to leave the property. Ross stated that Tsibouris dropped his shoulder and\nmoved toward Ross, as if to attack him. Tsibouris kept yelling angrily for Otten and\nwould not take no for an answer. Ross feared for his safety as he felt that he could not\nfend off Tsibouris, and therefore, he had no alternative but to raise the gun toward\nTsibouris. Afterward, Ross had no memory of pulling the trigger. He said it all\nhappened fast.\n {¶77} Ross’s argument requires his testimony to be believed. The State\npresented Asberry’s testimony, which was directly opposed to Ross’s testimony.\nAsberry testified that Tsibouris had been waiting about 15 minutes for Otten to come\ndown. When he walked to the front door, he did not appear angry or aggressive.\nAsberry then asked him what was taking so long, and Tsibouris looked at him and said\nthat Otten was coming down. Immediately afterward, the door opened, Tsibouris\nturned around and he was shot.\n {¶78} Asberry stated that Tsibouris’s arms were down by his side when he was\nshot and that no conversation with anyone had occurred before he was shot. “There\nwas no time for that,” he said. He also stated that Tsibouris had not grabbed the\ndoorknob or tried to get into the building. Additionally, Otten had testified that Ross\nwent downstairs to see who was knocking, she heard Ross say, “Who is it?” and then\nshe heard a gunshot.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶79} Further, Dr. Laib, the coroner, testified that there was a muzzle imprint\non Tsibouris’s forehead that meant that the murder weapon had been pressed firmly\nand forcefully against the skin when it was fired. She found soot and gunpower deep\nwithin the wound, dispelling Ross’s claim that he shot Tsibouris after he lunged at him.\n {¶80} Even though Tsibouris was bigger and younger than Ross, he was\nunarmed. He was not there to find Ross, but instead he wished to speak to Otten.\nAfter the shooting, Ross fled the scene, and when he spoke to police, he repeatedly lied\nto them, undercutting his claim that he feared for his life. Even if Ross had a subjective\nbelief that he was in imminent danger, a reasonable trier of fact could have determined\nthat that belief was not objectively reasonable.\n {¶81} Viewing the evidence in a light most favorable to the prosecution, the\njury could have reasonably found that the State disproved the imminent-belief-of-\nharm element beyond a reasonable doubt. See [CITATION], at ¶ 50 (1st\nDist.); [CITATION]. The jury could have believed the\nState’s evidence and disbelieved Ross’s testimony. Matters as to the credibility of\nevidence are for the trier of fact to decide. [CITATION]. Consequently, we overrule Ross’s fifth assignment of error.\n VI. Summary\n {¶82} In sum, we hold that Ross was not denied the effective assistance of\ncounsel, the trial court did not err in failing to give a limiting instruction on the\ncharacter evidence, Ross’s speedy-trial rights were not violated, and the state\ndisproved one of the elements of his self-defense claim. Consequently, we overrule his\nfive assignments of error and affirm the trial court’s judgments.\n Judgments affirmed.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nBERGERON, P.J., and CROUSE, J., concur.\nPlease note:\n The court has recorded its own entry this date.\n \n[CITATION]\n\n\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n STATE OF OHIO, : APPEAL NO. C-230646\n TRIAL NO. B-2303846\n Plaintiff-Appellee, :\n O P I N I O N.\n vs. :\n DARREN CLARKE, :\n Defendant-Appellant. :\n\n\nCriminal Appeal From: Hamilton County Court of Common Pleas\nJudgment Appealed From Is: Affirmed\nDate of Judgment Entry on Appeal: August 2, 2024\nMelissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,\nAssistant Prosecuting Attorney, for Plaintiff-Appellee,\nTimothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS\n\n[SEGMENT 6]\n\nBOCK, Presiding Judge.\n {¶1} Roughly 30 minutes after R.W. and defendant-appellant Darren Clarke\nengaged in an altercation that left Clarke dazed on the ground, Clarke re-ignited the\naltercation and attacked R.W. Following a bench trial, the trial court convicted Clarke\nof felonious assault. On appeal, Clarke argues that his conviction is against the\nmanifest weight of the evidence because he acted in self-defense, or that he attacked\nR.W. in a sudden fit of rage. We disagree. First, we hold that a fear of great bodily harm\nat the hands of an incapacitated person is objectively unreasonable. Second, kicking\nan incapacitated person in the head is excessive force. Third, a 30-minute period after\na fight is a sufficient cooling-off period to dampen any passion or rage.\n {¶2} Clarke also contends that he received constitutionally ineffective\nassistance of counsel because his attorney failed to present expert testimony of his\nmental state. But on direct appeal, Clarke can only speculate about what his\nhypothetical expert would explain. Therefore, he cannot show that there is a\nreasonable probability that the outcome of his trial would have been different.\n {¶3} We overrule both assignments of error and affirm Clarke’s conviction.\n I. Facts and Procedure\n {¶4} After two late-night fights between Clarke and R.W. near elevators on\nthe second floor of an apartment building, the state charged Clarke with felonious\nassault in violation of R.C. 2903.11(A)(1).\n {¶5} At the bench trial, the state built its case primarily around surveillance\nfootage from inside of the apartment building. A responding officer explained that the\ncameras near the elevators captured an initial “altercation” between Clarke and R.W.\ninside one elevator at roughly 10:45 p.m. The surveillance footage captured by a\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nhallway camera shows Clarke falling out of the elevator onto his back. Then R.W. stood\nin the elevator doorway over a visibly dazed Clarke. R.W. shoved Clarke’s legs out of\nthe elevator and walked to an adjacent elevator. Clarke stumbled and struggled to\nmaintain his balance as he tried to stand. R.W. left in an elevator as a bystander helped\nClarke to his feet.\n {¶6} Roughly 30 minutes later, the footage shows R.W. inside of a different\nelevator. As an officer testified, R.W.’s hands were “down to his sides” and relaxed,\nnonchalantly tapping a rhythm with his right hand. Clarke exited from a second-floor\napartment and walked to the elevators. An elevator door opened in front of Clarke.\nR.W. left the elevator and took two steps into the hallway. Clarke, then face-to-face\nwith R.W., paused briefly before punching R.W., knocking him to the ground. As R.W.\nwas motionless on the ground, Clarke, using great force, stomped on R.W.’s head five\ntimes. R.W. continued lying motionless and appeared to be unconscious.\n {¶7} Clarke took a five-second break to use his cell phone, and then resumed\nhis attack. Meanwhile, a resident came out of her apartment nearby and rushed to stop\nClarke. Clarke held off the resident as he swung his leg back and kicked R.W.’s head\nthree times with enough force to rotate R.W.’s body roughly 45 degrees. R.W. was\ninitially lying parallel to the elevator doors after the first punch but ended up\nperpendicular to the elevators. Clarke continued fending off the resident as he kicked\nR.W. in the head two more times with force that caused R.W.’s head to jerk back and\nforth. With each kick, blood splattered across the hallway.\n {¶8} Five more residents rushed to the scene as Clarke hovered over R.W.\nand then stomped on his head one final time. In total, Clarke delivered one punch and\n13 kicks to R.W.’s head in 40 seconds. As multiple residents restrained Clarke, several\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nothers attended to R.W., who was lying in a pool of blood. Three residents checked to\nsee if R.W. had a pulse.\n {¶9} An officer testified that R.W. had to be intubated. When an officer\ninterviewed R.W. at a physical rehabilitation center, he had no memory of that night.\nThat officer also interviewed Clarke, who said that his “head still hurt” when he saw\nR.W. exit from the elevator and that he was angered by the fact that R.W. failed to\n“acknowledg[e] the prior interaction.”\n Self-defense and mitigation evidence\n {¶10} Clarke raised two arguments in his defense. First, he argued that he\nacted in self-defense. Alternatively, Clarke asserted that he acted in a sudden fit of\nrage, which mitigated the severity of the offense.\n {¶11} In support, Clarke’s friend testified that she was visiting Clarke on the\nnight of the fights to help Clarke unpack, as he had just moved into his apartment. She\ndescribed the first altercation between Clarke and R.W. on the elevator. She explained\nthat R.W. was “intoxicated,” “F’d up,” and that she “just didn’t like the look on his\nface.” While she admitted that she and Clarke had consumed alcohol, she testified that\nR.W. “was very intoxicated” and that she “could smell it off of him.”\n {¶12} According to Clarke’s friend, R.W. warned Clarke that he was too close\nto him in the elevator. She recalled that Clarke asked R.W. what he meant, and R.W.\nresponded, “I said you too close. * * * [B]ack up. Back the ‘F’ up.” She testified that\nClarke told R.W. to “chill out,” and R.W. threatened to “ ‘F’ [Clarke] up” and Clarke\nshould “know I kill people out here.” Next, according to the friend, R.W. attacked\nClarke and “just kept hitting him,” so she pushed her way out of the elevator. Clarke’s\nfriend testified that she called the police, but they never arrived.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶13} Clarke testified that he had “no clue” who R.W. was, or why he attacked\nClarke in the elevator. The only thing he recalled was being hit by R.W.—he had no\nrecollection of what followed. After the first altercation, Clarke checked on his friend\nand then went to a second-floor apartment across from the elevators.\n {¶14} Clarke explained that he was attempting to return to his fifth-floor\napartment when the elevator doors opened, and R.W. emerged. He testified that, had\nhe known that R.W. was on the elevator, he would have used the stairs.\n {¶15} According to Clarke, R.W. commented, “What’s up, motherfucker” as he\nwalked off the elevator, which made Clarke afraid of what R.W. would do next and\nbelieve that R.W. would attack him again. Clarke testified that he was “a tad bit” angry\n“but more so worried that I am going to be attacked again.” Clarke was unsure of what\nR.W. was going to do, so he “reacted.” He said that he struck R.W. out of fear and to\nprevent further injury—Clarke described it as “an out-of-body experience.” Clarke\ntestified that he continued to kick R.W. because he did not “know [R.W.]. He just\nattacked me out of nowhere so I don’t know what he’s capable of.”\n {¶16} The trial court found Clarke guilty and explained its rejection of Clarke’s\nself-defense and mitigation defenses. Beginning with the first altercation, the trial\ncourt found it “weird” that R.W. walked “over” Clarke and did not touch Clarke in the\nhallway. While it noted that Clarke’s and his friend’s testimony was somewhat self-\nserving, it found that “something happened in there.”\n {¶17} But the trial court found that Clarke was not acting in a sudden fit of\nrage because there was not “enough time for him to say what’s up, motherfucker,\nbefore you hit him.” The trial court continued, “And even if he did he’s walking away\nfrom you and it’s a half an hour later. And he walks away from you and you clock him\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nand he’s down, but you don’t stop.” And Clarke was “fine walking out of that -- [his]\nfriend’s [apartment].”\n {¶18} The trial court also found that Clarke’s force was excessive. It\nemphasized that R.W. was “down and you keep going and you keep going.” Assuming\nClarke “thought he was going to come and get you, whatever, * * * you can’t do what\nyou did to him. That is not reasonable.”\n {¶19} The trial court sentenced Clarke to four-to-six years in prison. Clarke\nappeals in two assignments of error, claiming that his conviction was against the\nmanifest weight of the evidence and that he received ineffective assistance of counsel.\n II. Law and Analysis\n {¶20} In his first assignment of error, Clarke argues that his felonious-assault\nconviction is against the manifest weight of the evidence. First, he maintains that the\nstate failed to disprove his self-defense claim. The state disagrees and contends that\n\n[SEGMENT 7]\n“the video essentially speaks for itself.” Second, he argues that he should have been\nconvicted of aggravated assault as a lesser offense.\n A. Clarke’s fear of harm became unreasonable, and his force was excessive\n {¶21} The trial court found that the state disproved Clarke’s self-defense\nclaim, so we must determine whether that finding is against the manifest weight of the\nevidence. [CITATION], ¶ 37. To\ndo so, we must review “ ‘the entire record, weigh the evidence and all reasonable\ninferences, consider the credibility of the witnesses and determine whether, in\nresolving conflicts in the evidence, the [trier of fact] clearly lost its way and created\nsuch a manifest miscarriage of justice that the conviction must be reversed and a new\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ntrial ordered.’ ” [CITATION],\n¶ 59, quoting [CITATION].\n {¶22} Clarke had the initial burden of producing evidence tending to support\nthat (1) he did not create the situation leading to the affray; (2) he sincerely believed\nhe was in imminent danger of great bodily harm or death from which he could escape\nonly by using force; and (3) he did not violate a duty to retreat. [CITATION]. If Clarke met this initial burden\nof production, the burden shifted to the state to disprove any of the self-defense\nelements beyond a reasonable doubt. [CITATION] at ¶ 29.\n {¶23} To succeed on his self-defense claim, Clarke’s belief that he faced\nimminent danger of death or great bodily harm had to be an honest belief, and\nobjectively reasonable. [CITATION]. And a defendant’s “force must be reasonably proportionate to the threat.” [CITATION]; see [CITATION]; see also [CITATION].\n {¶24} It is hard to imagine a viable self-defense claim when the defendant\ncontinues using force after the victim appears to lose consciousness. We have rejected\na defendant’s self-defense claim, in part, because the defendant “continued to strangle\n[the victim] after [the victim] had been rendered unconscious.” [CITATION]. It is unreasonable\nto fear great bodily harm from a person lying motionless on the ground.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶25} Moreover, Ohio courts have held that “kicking an unconscious person\nin the head is excessive force.” [CITATION]. In [CITATION], the defendant did not act in self-defense when witnesses testified\nthat the victim “was punched ten times and kicked fifteen more times, all the while\nlying helpless and unconscious on the ground.” Id. at ¶ 14. In [CITATION], the defendant\nwas not acting in self-defense when, according to a witness, he kicked the victim who\nwas “unconscious on the ground, not moving and not fighting back.” [CITATION] at ¶ 12.\nRecently, the Eighth District affirmed a conviction where “video evidence depicted\n[the victim] lying on the ground, defenseless and not taking any actions to defend\nherself as [the defendant] repeatedly hit her.” [CITATION].\n {¶26} Nothing in the surveillance footage suggests that the trial court lost its\nway when it rejected Clarke’s self-defense claim. First, R.W. collapsed to the ground\nafter the initial punch and appeared to lose consciousness. The footage shows Clarke\nkicking and stomping on R.W.’s head, taking a short break, and then resuming his\nattack. While Clarke testified that he acted out of fear because R.W. might get back up,\nClarke was able to pause his attack and attempt a phone call. Assuming that Clarke\ndid, in fact, hold a subjective belief that R.W. could retaliate, that R.W. was motionless\non the floor as Clarke used his phone should have dispelled that belief. And like the\ndefendants in [CITATION], and [CITATION], Clarke used excessive force.\n {¶27} The trial court’s findings, and ultimate rejection of Clarke’s self-defense\nclaim, are consistent with the weight of the evidence.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n B. There was a sufficient cooling-off period to dampen Clarke’s passion and rage\n {¶28} Clarke also argues that “he acted in a sudden fit of rage,” which makes\nhim guilty of aggravated assault, a lesser included offense of felonious assault. A\ndefendant can be found not guilty of the offense charged, “but guilty of an inferior\ndegree thereof, or of a lesser included offense.” Crim.R. 31(C); see R.C. 2945.74.\n {¶29} The trial court convicted Clarke of felonious assault in violation of R.C.\n2903.11(A)(1), which makes it a crime to “knowingly * * * cause serious physical harm\nto another.” Unless the victim is a law enforcement officer, felonious assault is a\nsecond-degree felony. R.C. 2903.11(D)(1)(a).\n {¶30} As an inferior offense, aggravated assault is a fourth-degree felony and\nidentical to felonious assault, “except for the additional mitigating element of serious\nprovocation.” [CITATION], quoting [CITATION]. Specifically, the offender must cause the\nphysical harm “while under the influence of sudden passion or in a sudden fit of rage,\neither of which is brought on by serious provocation occasioned by the victim that is\nreasonably sufficient to incite the person into using deadly force.” R.C. 2903.12(A)(1).\nThis “render[s] the provoked defendant less worthy of blame and subject to less\npunishment.” [CITATION]. But “the defendant must react suddenly”—a provocation defense\nis not available when there is a sufficient cooling-off period. Id. at ¶ 48.\n {¶31} What constitutes a serious provocation “ ‘is a factual inquiry that\ncontains both objective and subjective components.’ ” [CITATION], quoting Smith at ¶ 46. Beginning with\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nthe objective component, a serious provocation is an event “intense enough to cause\nan ordinary person to lose control of their emotions, acting out of passion rather than\nreason.” Id., citing [CITATION] at ¶ 46. When determining if a provocation was objectively\nreasonable, this court “does not consider the defendant’s individual characteristics,\nsuch as short-temperedness.” Id. In [CITATION], we explained that “[p]ast altercations and\npast verbal threats do not satisfy the test for sufficient provocation where there is\nsufficient time for cooling off.” [CITATION] at ¶ 48. Likewise, “[w]ords alone will not\nconstitute reasonably sufficient provocation to incite the use of deadly force in most\nsituations.” Id.\n {¶32} Turning to the subjective component, this court must consider both the\ndefendant’s emotional and mental state and the circumstances surrounding the\nincident to determine whether the defendant acted under sudden passion or a fit of\nrage. Id. at ¶ 20. A defendant’s “fear alone is insufficient to show that a defendant acted\nunder a sudden passion or fit of rage.” [CITATION]; see [CITATION] at ¶ 48.\n {¶33} Clarke argues that he attacked R.W. in response to R.W.’s initial\nunprovoked attack in the elevator and R.W.’s subsequent taunt 30 minutes later.\nClarke argues that the provocation in this case is similar to the evidence of provocation\nin [CITATION]. In [CITATION], this court held that an objectively serious provocation\npreceded James Rhymer’s killing Thomas Landacre because\n Landacre was dating the mother of Rhymer’s child and was a father\n figure to that child. * * * Landacre had previously threatened him with\n violence, had texted him a picture of his penis, had broken [the mother\n of Rhymer’s child]’s car windows, and had tried to kill [Rhymer’s child].\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n Landacre showed up to the custody exchange uninvited, extremely\n agitated, and under the influence of drugs. Rhymer testified that\n Landacre challenged him to a fight in front of [Rhymer’s child], yelling,\n “There you are you, you are hiding from me, I found you, little pussy\n bitch, come on pussy bitch, let’s do this right now, let’s do this\n motherfucker.” Furthermore, Rhymer testified that Landacre pushed\n him and tried to grab the firearm from him.\n[CITATION] at ¶ 32. While Clarke likens the facts of this case to [CITATION], the victim’s\nstatements in [CITATION] were highly inflammatory and deeply personal, in contrast to\nR.W.’s alleged taunt of “what’s up, motherfucker?”\n {¶34} Plus, the trial court questioned whether R.W. made that remark. While\nClarke testified that R.W.’s remark prompted him to attack R.W., the trial court\nexplained, “I don’t think there’s enough time for him to say what’s up, mother fucker,\nbefore you hit him. I don’t think he could have said that. From the video I don’t think\nthere’s enough time left for him to say that.” And elsewhere, the trial court questioned\nthe credibility of Clarke’s testimony. It is well established that this court will presume\n\n[SEGMENT 8]\nin a bench trial, the trial court is in the best position to view the witnesses’ manner and\ndemeanor, account for inconsistencies, and determine witness credibility. [CITATION]. The footage does not\ncontradict or undermine the trial court’s finding. And absent a taunt, the only fact\nsupporting Clarke’s provocation theory is the initial fight in the elevator. Ohio courts\nhave routinely held that “past incidents * * * are not sufficient” to show a serious\nprovocation. [CITATION].\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶35} Finally, Ohio courts have held that “fifteen to twenty minutes after [a]\nfight” is a sufficient cooling-off period. See [CITATION]; see also [CITATION] (collecting cases). The trial court appeared to find\nthat Clarke had sufficient time to cool off after the first fight. Specifically, it explained\nthat the first fight “couldn’t have been that bad because [Clarke’s friend] left you and\na half hour goes by. So if you’re still pissed off about being assaulted, you don’t call the\npolice. You don’t look for the police. You stick around and go get some smokes.” The\ntrial court’s findings are consistent with Ohio law.\n {¶36} As the trial court noted, something happened when Clarke first\nencountered R.W. in the elevator. We do not doubt that Clarke attacked R.W. in\nresponse. But 30 minutes had passed between that fight and Clarke’s attack, which\nwas a reasonably sufficient time for Clarke’s passion to cool. We defer to the trial\ncourt’s finding that R.W. did not challenge Clarke when he stepped off the elevator.\nWe hold that the trial court did not lose its way when it found that Clarke was not\nacting in a sudden fit of rage when he attacked R.W.\n {¶37} Clarke’s conviction is not against the manifest weight of the evidence.\nWe overrule Clarke’s first assignment of error.\n C. Speculation does not establish ineffective assistance of counsel\n {¶38} In his second assignment of error, Clarke claims that his trial attorney\nwas ineffective in violation of his right to counsel for failing to introduce expert\ntestimony of his mental state. He argues that his self-defense claim and mitigation\ndefense both implicate his mental state, and “[a]n expert could have interviewed\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nand/or tested Mr. Clarke for how he responds to stress and threats,” which would have\nassisted the trial court in considering whether his response to R.W. was reasonable.\n {¶39} To establish an ineffective-assistance-of-counsel claim, Clarke must\nshow that his attorney’s “performance was deficient and that the deficient\nperformance prejudiced the accused.” [CITATION], 2021-Ohio-1693, ¶ 65, quoting [CITATION], 466 U.S. 668, 687,\n104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that his attorney’s performance was\ndeficient, he must “show his lawyer’s performance fell below an objective standard of\nreasonable representation.” [CITATION], 2010-\nOhio-5240, ¶ 25, citing [CITATION] at paragraph two of the syllabus. To show prejudice,\nhe must demonstrate that “there is a reasonable probability that the outcome of the\nproceedings would have been different but for the complained-of conduct.” [CITATION] at\n¶ 65, citing [CITATION] at 694.\n {¶40} As Clarke points out, typically “the decision not to call an expert witness\ndoes not constitute ineffective assistance of counsel because that decision is solely a\nmatter of trial strategy.” [CITATION] at ¶ 66, citing [CITATION], 544 N.E.2d 622 (1989). Yet, Clarke argues that his attorney “failed to put on\nany expert evidence to establish Mr. Clarke’s state of mind.”\n {¶41} Clarke offers little more than speculation about this expert testimony.\nAnd without more, he cannot establish prejudice because when “ ‘[n]othing in the\nrecord indicates what kind of testimony an [expert witness] could have provided,’\nresolving the issue of whether counsel was deficient in failing to employ an expert is\n‘purely speculative.’ ” [CITATION] at ¶ 26, quoting [CITATION], 721 N.E.2d 52 (2000); see [CITATION],\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n[CITATION]; see also [CITATION].\n {¶42} Still more, we have held that speculative assertions about the substance\nof hypothetical expert testimony cannot establish prejudice. See [CITATION], at ¶ 65. Clarke’s arguments are ill-suited\nfor an ineffective-assistance claim raised on direct appeal because there is no evidence\nin the record related to his mental state and he cannot offer anything more than mere\nspeculation.\n {¶43} Since mere speculation does not establish an ineffective-assistance\nclaim, we overrule Clarke’s second assignment of error.\n III. Conclusion\n {¶44} We overrule Clarke’s assignments of error and affirm his conviction.\n Judgment affirmed.\nBERGERON and KINSLEY, JJ., concur.\nPlease note:\n The court has recorded its entry on the date of the release of this opinion.\n \n[CITATION]\n\n COURT OF APPEALS OF OHIO\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\nSTATE OF OHIO, :\n Plaintiff-Appellee, :\n No. 113455\n v. :\nTAWANN SMITH, :\n Defendant-Appellant. :\n\n JOURNAL ENTRY AND OPINION\n JUDGMENT: AFFIRMED\n RELEASED AND JOURNALIZED: July 25, 2024\n\n Criminal Appeal from the Cuyahoga County Court of Common Pleas\n Case No. CR-23-681060-A\n\n Appearances:\n Michael C. O’Malley, Cuyahoga County Prosecuting\n Attorney, and Mason P. McCarthy, Assistant Prosecuting\n Attorney, for appellee.\n Patituce & Associates, Joseph C. Patituce, and Megan M.\n Patituce, for appellant.\n\nSEAN C. GALLAGHER, J.:\n Tawann Smith appeals his conviction for felonious assault along with\ntwo attendant firearm specifications. The conviction arose from his shooting the\nvictim during a fistfight between the victim and Smith and his brother. Smith was sentenced to three-year terms of imprisonment on each of the two firearm\nspecifications, which are consecutive to each other, and the indefinite two-to-three-\nyear term imposed on the felonious assault conviction.1 This timely appeal followed.\n On the day of the shooting, recorded from multiple angles by security\ncameras installed inside the gas station in which the incident took place, the victim\nwas at the counter buying various sundries. A line formed behind him with Smith\nentering while the victim was finishing the transaction. The line ended at the store’s\nentrance. The victim testified he saw Smith enter but paid him no mind. The two\nwere once friends. A falling out occurred about a year before the shooting over the\nvictim contacting Smith’s girlfriend. As the victim exited the store, he had to pass\nSmith. The video does not depict any obvious physical contact between the two at\nthat time, but the victim thought he may have stepped on Smith’s foot under the\ncamera’s viewing angle. Smith immediately turned and took at least two steps\ntoward the victim, who had exited the store and had his back toward Smith at the\ntime. After a brief, albeit animated, discussion, Smith aggressively pushed the\nvictim and they both began shoving and wrestling with each other. Other patrons\ncleared the area. Smith admitted to starting the fight by pushing the victim,\nalthough he claimed the victim was verbally aggressive. Shortly after the two were\n Smith turned down the State’s plea offer to dismiss the firearm specifications and\nplead guilty to a single count of felonious assault in favor of relying on the claim of self-\ndefense at trial. Imposing sentences on two of the firearm specifications, one of which\nwas attendant to a merged offense, is required under the combined application of R.C.\n2929.14(B)(1)(g) and [CITATION]. Smith was advised of this fact\nduring the pretrial proceedings. The provided text does not contain any court ruling citations. Therefore, no replacements are needed. Here is the text preserved as it is:\n\nentangled in an upright wrestling match inside the store, with the victim being\npinned up against a cooler, Smith’s brother joined in and punched the victim in the\nback of the head. Smith’s brother had seen the fight and came to help Smith, but he\ndid not see how it started.\n Smith, who was armed, dropped his handgun during the initial stage\nof the fight. When his brother stepped in and started fighting with the victim, Smith\npicked up the handgun and fired at the victim as he was engaged with Smith’s\nbrother. The victim was wounded in the stomach. The responding officer found the\nvictim with his intestine hanging out and administered emergency aid until the\nambulance arrived. He survived, but a significant incision from chest to navel was\nneeded to repair the damage caused by the bullet. The victim was unarmed at the\ntime of the fight, a fact that Smith retrospectively conceded in his trial testimony.\n At trial, Smith presented text messages from the victim that were sent\n\n[SEGMENT 9]\neight months before the shooting, around the time the falling out between the two\noccurred. In those messages, which only included the victim’s side of the messaging,\nseveral comments were made about the two fighting to resolve their dispute.\nAlthough there was mention of a firearm, Smith testified to not understanding that\nspecific statement at trial. There appears to have been no contact between the two\nuntil the shooting.\n Smith claimed that as soon as he saw the victim in the gas station, he\nwas in fear for his life in light of the earlier texted threats. He nonetheless remained\nin the store while the victim was finalizing his purchase. According to Smith, the victim “shoulder swiped” him as he passed and then stepped on his foot. Smith\nadvanced toward the victim to inquire into the perceived slight. The victim had\nalready exited by that point and was standing outside the store with the door still\nopen. Smith claims the victim was verbally aggressive and said that they should both\nput their weapons down to fight — the victim unremarkably denied saying anything\nto that effect. After that brief “discussion,” Smith pushed the victim, claiming to do\nso to create personal space. That act nonetheless started the fistfight. Smith thought\nthe victim was attempting to grab Smith’s concealed firearm while the two wrestled\nagainst the store’s cooler. He stated in response to being asked why he fired the\nshot: “[b]ecause I feel like if I would have still continued to fight, he could have got\nmy gun and killed me and my family [(who were in the car parked at one of the fuel\npumps)].” Thus, to summarize that testimony in context, Smith believed his life was\nin danger because in the fistfight he instigated, he believed he would be overpowered\nand his concealed handgun turned against him.\n The video recording of the fight, as viewed by the jury, demonstrates\nthat Smith had possession of his handgun at a distance from the victim, who was\nthen fighting with Smith’s brother at the time the shot was fired. Smith’s brother\nand the victim, although wrestling and throwing unaimed punches, did not appear\nto be getting the better of the other. After the shooting, the fight ended. Smith and\nhis brother fled the store. Smith returned to retrieve his hat, which had fallen off\nduring the tussle. At trial, he claimed to be looking for his car key, which he found\nin his pocket. In response to the victim’s question about being shot, Smith said he did so in self-defense. Smith left the scene and called the Garfield Heights Police\nDepartment to explain what had just occurred.\n In the sole assignment of error, Smith claims his conviction, entered\nfollowing a jury trial, is against the weight of the evidence because he and his\nbrother’s testimony established that he acted in self-defense.\n When evaluating a claim that a jury verdict is against the weight of\nthe evidence, appellate courts “review the entire record, weigh the evidence and all\nreasonable inferences, consider the credibility of witnesses, and determine whether\nin resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created\nsuch a manifest miscarriage of justice that we must reverse the conviction and order\na new trial.” [CITATION], ¶ 168, citing [CITATION], ¶ 17. Reversing a\nconviction based upon the weight of the evidence occurs “‘only in the exceptional\ncase in which the evidence weighs heavily against the conviction.’” [CITATION] at\n387, quoting [CITATION].\n In order to disprove the claim of self-defense, the State must present\nevidence “‘beyond a reasonable doubt that the defendant: (1) was at fault in creating\nthe situation giving rise to the affray; (2) did not have reasonable grounds to believe\nor an honest belief that he or she was in imminent danger of bodily harm; or\n(3) violated a duty to retreat or avoid danger.’” [CITATION], ¶ 25 (1st Dist.), quoting [CITATION], ¶ 11 (1st Dist.). The first\nand third elements are straightforward and are applied as written. As to the second element, “‘the test for a bona fide belief of imminent bodily harm is both objective\nand subjective: whether the defendant’s belief is objectively reasonable and whether\nthe defendant subjectively had an honest belief of imminent bodily harm.’” Id. at\n¶ 26, quoting [CITATION]\n Smith’s argument that the trier of fact lost its way in rejecting his\nassertion of self-defense is solely focused on subjective beliefs to the exclusion of the\nState’s evidence. It is well settled that “‘a conviction is not against the manifest\nweight of the evidence simply because the [trier of fact] rejected the defendant’s\nversion of the facts and believed the testimony presented by the state.’” [CITATION], quoting [CITATION]; see also [CITATION]. This is because the trier of fact is free\nto believe all, some, or none of the evidence presented by the State or defense at trial.\n[CITATION]. We cannot conclude that the jury\nlost its way.\n The State presented evidence that the victim was not armed, much\nless brandishing a firearm, at the time of the shooting and was not doing anything\nother than engaging with Smith and his brother’s belligerence, which was limited to\nfists before Smith used his deadly weapon. Importantly, the video demonstrated,\nand Smith conceded, that he started the physical altercation by pushing the victim\nat a time when the two were merely engaged in a heated conversation. Moreover, Smith dramatically escalated what had been limited to fisticuffs by shooting the\nvictim in the stomach.\n Inasmuch as Smith relies on the fact that the victim may have stepped\non his shoe or “brushed his shoulder” as evidence that the victim was the initial\naggressor, those acts in and of themselves do not constitute the start of what became\na two-on-one fistfight after Smith aggressively confronted and then pushed the\nvictim. See [CITATION] (“‘Ohio courts have long\nrecognized that a person cannot provoke assault or voluntarily enter an encounter\nand then claim a right of self-defense.’”), quoting [CITATION]; see also [CITATION] (“Generally, a defendant,\nhaving willingly advanced toward a volatile situation cannot rely on the affirmative\ndefense of self-defense.”). The video suggests that had Smith not advanced toward\nand confronted the victim, no violence would have ensued. The victim was leaving\nthe store when stopped and confronted by Smith. Having willingly advanced to\nengage in physical combat with someone he subjectively claimed possessed a\nweapon, Smith cannot rebut the State’s proof that he was anything but the initial\naggressor. See [CITATION]. Regardless, even taking into consideration Smith’s\nsubjective belief that the two men were armed before Smith initiated the physical\nfight, this is best characterized as mutual combat between two armed opponents,\nwhich generally does not support a claim of self-defense. See [CITATION]. And beyond all that, even if Smith’s instigation of the fight were\nignored, Smith escalated the potential lethality of the altercation by using a deadly\nweapon in a situation in which the objective evidence did not establish that either\nhe or his brother were in imminent danger of being severely beaten by the victim.\nSee, e.g., [CITATION] (conviction for\nfelonious assault is not against the weight of the evidence because “witnesses\nreasonably could conclude defendant . . . in effect escalated a fist fight into a shoot\nout” and “exceeded the force he was entitled to use”); see also [CITATION]\n(collecting cases establishing that self-defense is\nunavailable as a defense where the force used is so disproportionate to the perceived\nthreat that it demonstrates an unreasonable purpose to injure). The jury was free to\nconsider Smith’s version of his conduct in comparison to the video evidence\ndemonstrating that a physical altercation was taking place, but none of the\ncombatants were taking any actions consistent with putting anyone else in mortal\ndanger, at least until Smith used the firearm.\n A conviction will not be reversed as being against the manifest weight\nof the evidence except in an “exceptional case in which the evidence weighs heavily\nagainst the conviction.” [CITATION]. This is not that case. The\nprimary evidence introduced against Smith was the video recordings of the entire\naltercation. The jury was free to draw its own conclusions as to what actually\noccurred. [CITATION]. And although there are\narguably some inconsistencies in the State’s evidence, none of the inconsistencies rise to such a level as to impact the overwhelming evidence of Smith’s guilt and all\nthose inconsistencies were addressed by the State for the jury’s consideration. In\nshort, the trier of fact was free to reject Smith’s version of events and he has not\ndemonstrated that in resolving the credibility of the State’s evidence, the trier of fact\nclearly lost its way in finding him guilty of felonious assault or the two attendant\nfirearm specifications.\n The conviction is affirmed.\n It is ordered that appellee recover from appellant costs herein taxed.\n The court finds there were reasonable grounds for this appeal.\n It is ordered that a special mandate issue out of this court directing the\ncommon pleas court to carry this judgment into execution. The defendant’s\nconviction having been affirmed, any bail pending appeal is terminated. Case\nremanded to the trial court for execution of sentence.\n A certified copy of this entry shall constitute the mandate pursuant to Rule 27\nof the Rules of Appellate Procedure.\n\n______________________\nSEAN C. GALLAGHER, JUDGE\nEILEEN A. GALLAGHER, P.J., and\nEMANUELLA D. GROVES, J., CONCUR As there is no specific text provided under the part of a court ruling, I will provide a general example to illustrate how the replacement should be done, following the rules mentioned. Please provide the actual text to perform the exact replacements if needed.\n\n[SEGMENT 10]\n---\n## Example Court Ruling Text Before Processing ##\n\"In the case of People v. Whitaker, 2024 IL App (1st) 232009, the court stated that the evidence presented was admissible. This ruling aligns with previous decisions such as Jackson v. Board of Election Commissioners, 2012 IL App (1st) 120348, and the principles discussed in Smith v. Jones. However, in state-v-warth, the circumstances were different, leading to a unique decision.\nMoreover, we take into consideration the decision in People v. Deleon, which provides further insight into this matter.\"\n## Example Court Ruling Text After Processing ##\n\"In the case of [CITATION], the court stated that the evidence presented was admissible. This ruling aligns with previous decisions such as [CITATION], and the principles discussed in [CITATION]. However, in [CITATION], the circumstances were different, leading to a unique decision.\nMoreover, we take into consideration the decision in [CITATION], which provides further insight into this matter.\"\n---\n[CITATION]\n\n\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n\nSTATE OF OHIO, : APPEAL NO. C-230455\n TRIAL NO. 23CRB-9124\n Plaintiff-Appellee, :\n vs. :\n O P I N I O N.\nPIERRE BRADFORD, :\n Defendant-Appellant. :\n\n\nCriminal Appeal From: Hamilton County Municipal Court\nJudgment Appealed From Is: Affirmed\nDate of Judgment Entry on Appeal: June 12, 2024\n\nEmily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,\nand Ashton Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,\nRaymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant\nPublic Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS\n\nZAYAS, Judge.\n {¶1} Pierre Bradford was convicted, after a jury trial, of violating a protection\norder. In two assignments of error, Bradford argues that the trial court erred by\npermitting other-acts testimony that was irrelevant and prejudicial, and his conviction\nwas not supported by sufficient evidence and was contrary to the manifest weight of\nthe evidence.\n Factual Background\n {¶2} Bradford was charged with violating a protection order that prohibits\nhim from entering Fanta Spell’s “place of employment,” requires him to not be present\nwithin 500 feet of Spell, and prohibits him from initiating or having contact with Spell\nor her places of employment. Bradford pled not guilty and requested a jury trial.\n {¶3} Prior to trial, the city filed a notice of intent to introduce other-acts\nevidence to show intent, knowledge, and absence of mistake. The city intended to elicit\ntestimony from Spell regarding Bradford’s criminal conduct that ultimately resulted\nin the issuance of the protection order. Bradford filed a motion in limine seeking to\nprevent the other-acts testimony. At the hearing on the motion, the city explained that\nSpell would testify to the following facts: that Bradford threw urine on her while she\nwas outside of the streetcar’s office at the streetcar facility. The purpose was to give\nthe jury context and “make[] it clearer for the jury as to why a protection order was\nasked for in the first place.”\n {¶4} Bradford argued that the prior conviction was inadmissible and\nprejudicial, and had no probative value because Bradford was not challenging the\nvalidity or service of the protection order. Bradford further argued that the factual\nfindings by the court that issued the order had been redacted, and allowing the witness\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nto testify to the underlying facts had no probative value and was highly prejudicial.\n {¶5} The court concluded that the testimony should not be analyzed as prior\nbad acts because the acts were relevant to the issuance of the order and provided the\njurors with context regarding the issuance of the protection order, and that the\nprobative value outweighed the prejudice. The court offered to give a limiting\ninstruction when the evidence was introduced.\n Trial Testimony\n {¶6} The city’s first witness was Donna Faulks who is employed as a\nsupervisor for the streetcar. She supervises the streetcar operators and is responsible\nfor track access. Fanta Spell is a streetcar operator who is under the supervision of\nFaulks. Faulks knew that Spell had obtained a protection order against Bradford.\nFaulks also knew Bradford from when she was a streetcar operator.\n {¶7} On May 29, 2023, Faulks was conducting an external ride evaluation of\nSpell who was operating a streetcar. After completing Spell’s evaluation, Faulks was\ndriving to the next streetcar to complete another external ride evaluation. As she\napproached 12th and Vine Streets, she looked to her right and saw Bradford standing\non a streetcar platform. Faulks knew that Spell was operating a streetcar that would\napproach that platform in a few stops, so she decided to warn Spell and stop her from\napproaching the platform. Faulks, who was driving a marked city of Cincinnati\nsupervisor vehicle, turned on her hazard and operational lights. Bradford saw her car\nand went north on Vine Street. Faulks drove to the streetcar maintenance and\noperations facility (“MOF”) at 1927 Race Street and informed her supervisor that she\nhad seen Bradford. Faulks testified that the streetcar workplace is a 3.5 mile loop with\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n18 stops through downtown Cincinnati. The platforms are leased to SORTA by the\ncity.\n {¶8} Fanta Spell testified that she is employed as a streetcar operator.\nBradford objected when the prosecutor asked Spell how she knew Bradford. Prior to\nher response, the trial court instructed the jury that the testimony is “being admitted\nto provide context as to the issuance of the civil protection order. It is not received\nand you may not consider that prior conduct for any other purpose.” Spell testified\nthat she knew Bradford “from him boarding the streetcar and seeing him outside the\nstreetcar.” Spell was asked why she filed a petition for a protection order against\nBradford, and over objection, Spell testified, “Because on June 16th of 2022, there was\nan assault against me by Mr. Bradford who, outside of my employer, waited for me to\ncome outside and he proceeded to throw urine on me.” At the time she obtained the\nprotection order, Spell was a streetcar operator.\n {¶9} A side bar discussion occurred, and Bradford objected to the testimony\nthat he committed an assault. Bradford was charged with assault, but convicted of\nmenacing. The court instructed the jury to disregard the word “assault.” A redacted\ncopy of the protection order was admitted into evidence by agreement of the parties.\nAll of the factual findings were redacted.\n {¶10} Spell testified that when she returned to MOF and got off the streetcar,\nshe learned that Bradford had been at the streetcar platform. When the streetcar stops\nat a platform, she is approximately two feet from the platform. Spell further testified\nthat she had no contact with Bradford that day and did not see him at the 12th and\nVine stop.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶11} Sergeant Linda Sellers, who works for the Cincinnati Police\nDepartment, was working a streetcar detail that day. As she was signing in, she\nlearned that Bradford had been on the platform. Sellers spoke with Faulks, reviewed\nthe protection order, went back to the district, and eventually filed charges.\n {¶12} Deputy Katie Carrier testified that she ordinarily serves protection\norders at the jail. The court called for a brief side bar, then informed the jury that the\nparties stipulated that Bradford was served with the protection order. No further\nquestions were asked of Carrier.\n {¶13} Again the trial recessed briefly, and Bradford requested a mistrial due\nto the testimony that Bradford assaulted Spell, which the court overruled. Then\nBradford moved for a judgment of acquittal because Box 13 on the protection order\ndoes not specify that Bradford is prohibited from streetcar platforms. Box 13 provides\na space for the trial court to issue further orders. He further argued that Bradford had\nno contact with Spell and did not violate the protection order.\n {¶14} The city argued that Bradford violated the provision that states:\n“Respondent shall not enter the residence, school, business, place of employment of\nthe protected party.” The city contended that the streetcar platforms constitute the\nplace of employment. The court overruled the motion, concluding that the jury should\ndetermine whether the platform “falls within the parameters of the protection order.”\n {¶15} Both parties rested and proceeded to closing arguments. The city\nargued to the jury that Bradford violated the provision that prohibited him from\nentering Spell’s place of employment because the streetcar, the headquarters, and the\nplatforms are part of the place of employment. The order specifically included “the\nbuildings, the grounds, and parking lots,” and the platform is part of the grounds.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nBradford argued that he was prohibited from Spell’s workplace at MOF, but not the\nstreetcar platforms. The jury found Bradford guilty of violating the protection order\nin violation of R.C. 2919.27.\n\n[SEGMENT 11]\n {¶16} Bradford appealed, and in two assignments of error, Bradford argues\nthat the trial court erred by permitting other-acts testimony that was irrelevant and\nprejudicial, and his conviction was not supported by sufficient evidence and was\ncontrary to the manifest weight of the evidence.\n Admissibility of Other-Acts Evidence\n {¶17} The admissibility of other-acts evidence is a question of law that we\nreview de novo. [CITATION], ¶ 22.\n {¶18} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or\nacts is not admissible to prove the character of a person in order to show action in\nconformity therewith. It may, however, be admissible for other purposes, such as\nproof of motive, opportunity, intent, preparation, plan, knowledge, identity, or\nabsence of mistake or accident.” Similarly, R.C. 2945.59 provides that:\n In any criminal case in which the defendant’s motive or intent, the\n absence of mistake or accident on his part, or the defendant’s scheme,\n plan, or system in doing an act is material, any acts of the defendant\n which tend to show his motive or intent, the absence of mistake or\n accident on his part, or the defendant’s scheme, plan, or system in doing\n the act in question may be proved, whether they are contemporaneous\n with or prior or subsequent thereto, notwithstanding that such proof\n may show or tend to show the commission of another crime by the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n defendant.\n {¶19} Other-acts evidence may not be used to establish a defendant’s\npropensity to commit crime or to demonstrate that an accused committed the crime\nin question because of her or his proclivity to commit crime in general. [CITATION] at ¶\n21. To be admissible, the other-acts evidence must be “probative of a separate,\nnonpropensity-based issue” and “must go to a ‘material’ issue that is actually in\ndispute between the parties.” Id. at ¶ 22, 27. Thus, this court must analyze whether\nthe other-acts evidence was (1) “relevant to the particular purpose for which it [was]\noffered” and (2) relevant “to a material issue that is actually in dispute between the\nparties.” Id. at ¶ 26-27.\n {¶20} In this case, the state sought to introduce the facts of the underlying\ncrime that resulted in the issuance of the protection order. The sole purpose was to\nprovide the jury with context as to the issuance of the protection order. Bradford\nargued that the facts of the underlying conviction were irrelevant because Bradford\nwas not challenging the validity or service of the protection order, and the underlying\nfacts were extremely prejudicial.\n {¶21} The trial court concluded that the testimony was not other-acts\nevidence, was admissible to provide context to the jury about the issuance of the\nprotection order, and that the probative value outweighed any prejudice.\n {¶22} “Context” is not a permissible purpose under Evid.R. 404(B). Other-\nacts evidence is admissible when the other acts demonstrate the “setting” of a case and\nare part of the “immediate background” of the charged offenses. [CITATION]\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nN.E.3d 1043, ¶ 19 (1st Dist.). “However, this theory is limited to those events that are\n‘contemporaneous’ with the charged conduct and necessary to add ‘meaning and\ncontext’ to other, relevant testimony.” In re J.P., [CITATION], ¶ 53. Here, the offense that prompted the protection\norder occurred in 2022, and was not contemporaneous with the protection-order\nviolation. See id. Moreover, the validity of the protection order was not a material\nissue in the case because Bradford stipulated to the validity and service of the\nprotection order. Therefore, the trial court erred in admitting the testimony. See id.\nat ¶ 55.\n {¶23} On appeal, the city further argues that the testimony was admissible to\nexplain the victim’s state of mind and lack of mistake. Those arguments were not\nraised in the trial court and are waived. Moreover, the arguments are without merit\nbecause the victim’s state of mind was not an issue in this case. Spell never saw\nBradford on the platform and was unaware of his presence until after the alleged\nviolation. Admission for lack of mistake focuses on the defendant’s conduct and\nwhether the prior acts show that the defendant acted purposefully, rather than\naccidentally or mistakenly, in committing the current offense. See [CITATION]. The facts of the initial conviction\nwere not relevant to Bradford’s violation of the protection order. The sole issue in the\ncase was the scope of the protection order.\n {¶24} Having determined that these statements were improperly admitted, we\nmust determine what effect, if any, their admission had on the outcome. Because\nBradford objected to these statements, we review for harmless error. [CITATION]. Under this standard, the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nadmission of other-acts evidence is harmless when there is no reasonable possibility\nthat the evidence contributed to the conviction. [CITATION]\n {¶25} In [CITATION], the court reversed Fuchs’s conviction for violating a\nprotection order due to the ineffectiveness of trial counsel. [CITATION] (“State’s Exhibit 4 included unfairly\nprejudicial evidence of other acts, and we find that Fuchs’s trial counsel rendered\nineffective representation by failing to object to the admission of the exhibit without\nredactions. We find further that the jury’s receipt of the exhibit gives rise to a\nreasonable possibility that the outcome of Fuchs’s trial would have been different had\nthe exhibit not been introduced into evidence, or had it been entered into evidence\nonly in a redacted form.”). Counsel had stipulated that Fuchs was subject to the\nprotection order and was properly served. [CITATION] Counsel failed to object to the\nadmission of state’s Exhibit 4, which was a copy of the protection order and the\nmagistrate’s decision which included the facts of the underlying offense that prompted\nthe issuance of the order. [CITATION] The court found:\n a reasonable probability that the outcome of Fuchs’s trial would have\n been different had State’s Exhibit 4 not been admitted into evidence.\n The protection order itself stated that Fuchs had been engaged in a\n “pattern of [threatening] conduct,” and the magistrate’s findings of fact\n presented the jury with potentially inflammatory descriptions of\n Fuchs’s past behavior. Irrespective of the exhibit’s relevance, “evidence\n is not admissible if its probative value is substantially outweighed by the\n danger of unfair prejudice,” and it “may be excluded if its probative\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n value is substantially outweighed” by its redundancy. See Evid.R.\n(A)-(B). Here, the magistrate’s findings of fact posed a significant\n risk of causing Fuchs unfair prejudice, but even otherwise, the\n admission of the exhibit was needlessly cumulative because Fuchs had\n stipulated to the validity of the protection order and to his previous\n conviction.\n[CITATION] at ¶ 17.\n {¶26} However, the evidence against Fuchs was contested. One state witness,\nwho lived next to the protected person, testified that she saw Fuchs driving his truck\nin the neighborhood. [CITATION] at ¶ 15. Two other neighbors saw a truck similar to Fuchs’s\ntruck but did not see the driver. [CITATION]. One of Fuchs’s witnesses testified that Fuchs and\nhe had been kayaking when the alleged violation occurred, and Fuchs’s mother\ntestified that his truck was inoperable that day. [CITATION] at ¶ 15.\n {¶27} Here, the evidence established that Bradford was on a streetcar\nplatform. Faulks, who knew Bradford, testified that she saw him standing on the\nplatform. Bradford argued that the protection order prohibited him from her office\nwhere the initial offense occurred, but did not specify that he was prohibited from the\nstreetcar platforms. Additionally, the trial court gave a limiting instruction to the jury\nwhen the testimony was elicited informing the jurors that the testimony is “being\nadmitted to provide context as to the issuance of the civil protection order. It is not\nreceived and you may not consider that prior conduct for any other purpose.”\n {¶28} Based on this record, the impact of any error in admitting the testimony\nwas minimal. Bradford’s substantial rights were not prejudiced because there is no\nreasonable possibility that this evidence contributed to his conviction given the other\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nevidence presented at trial.\n {¶29} We overrule the first assignment of error.\n Sufficiency and Manifest Weight\n {¶30} Next, Bradford contends that his conviction was not supported by\nsufficient evidence and was contrary to the manifest weight of the evidence.\n {¶31} In reviewing a challenge to the sufficiency of the evidence, we must\ndetermine whether, after viewing the evidence in the light most favorable to the\nprosecution, any rational trier of fact could have found the essential elements of the\ncrime had been proved beyond a reasonable doubt. [CITATION], paragraph two of the syllabus.\n {¶32} As to the weight of the evidence, “an appellate court must review the\n\n[SEGMENT 12]\nentire record, weigh the evidence and all reasonable inferences, consider the\ncredibility of the witnesses, and determine whether, in resolving conflicts in the\nevidence, the trier of fact clearly lost its way and created a manifest miscarriage of\njustice.” [CITATION], ¶ 29, citing [CITATION]. We afford\nsubstantial deference to credibility determinations because the factfinder sees and\nhears the witnesses. See [CITATION] at ¶ 30.\n {¶33} R.C. 2919.27(A)(1) provides that “[n]o person shall recklessly violate the\nterms of * * * [a] protection order issued or consent agreement approved pursuant to\nR.C. 2919.26 or 3113.31 of the Revised Code.” R.C. 2901.22(C) provides that “[a]\nperson acts recklessly when, with heedless indifference to the consequences, the\nperson disregards a substantial and unjustifiable risk that the person’s conduct is\nlikely to cause a certain result or is likely to be of a certain nature.”\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶34} Here, Bradford was convicted for violating the following term of the\nprotection order: “1. RESPONDENT SHALL NOT ENTER the residence, school,\nbusiness, [or] place of employment * * * of the protected persons named in this Order,\nincluding the buildings, grounds, and parking lots at those locations.”\n {¶35} Bradford argues that the evidence was insufficient to establish that the\nprotection order prohibited him from the streetcar platform. Further, he argues that\nthe streetcar platforms are owned by the city of Cincinnati and thus are public spaces\nwhich cannot be included in a protection order, that the streetcar operator is inside\nthe streetcar and shielded from a person on the platform by glass and the streetcar\nitself, and at most the protection order encompassed the streetcar operations\nheadquarters and the streetcars themselves.\n {¶36} The plain language of the order prohibits Bradford from entering her\nplace of employment, which includes the buildings, grounds, and parking lots at those\nlocations. Spell is employed as a streetcar operator, thus her place of employment\nincludes the streetcars, and the grounds, which encompasses the platforms. Faulks’s\ntestimony that she saw Bradford sitting on the platform at 12th and Vine Streets was\nsufficient to prove that he violated the protection order.\n {¶37} Bradford further argues that the evidence failed to demonstrate beyond\na reasonable doubt that he recklessly violated the civil protection order because he left\nthe platform before Spell arrived. However, the protection order prohibits Bradford\nfrom entering Spell’s place of employment and does not require Spell to be present.\nViewing the evidence in a light most favorable to the prosecution, any rational trier of\nfact could have found the essential elements of the crime proven beyond a reasonable\ndoubt. This is not an exceptional case in which the evidence weighs heavily against\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nthe conviction.\n {¶38} Accordingly, we overrule the second assignment of error.\n Conclusion\n {¶39} Having overruled Bradford’s two assignments of error, we affirm the\njudgment of the trial court.\n Judgment affirmed.\n\nWINKLER, J., concurs.\nBOCK, P.J., concurs separately.\nBOCK, P.J., concurring separately.\n {¶40} I agree with the majority that the trial court’s admission of the other-\nacts evidence was harmless. I write separately, however, because I believe that this\nevidence would have required a reversal had Bradford’s presence on the platform been\ndisputed.\n {¶41} As noted by the majority, the state must establish that the error was\nharmless beyond a reasonable doubt. [CITATION], ¶ 15; see Crim.R. 52(A). In reviewing for harmless error, we must “excise\nthe improper evidence from the record and then look to the remaining evidence.”\n[CITATION] at ¶ 29. And a holding that an error was harmless is appropriate only in cases\nwhere there was “either overwhelming evidence of guilt or some other indicia that the\nerror did not contribute to the conviction.” Id., quoting [CITATION], quoting [CITATION], fn. 5. Of course, an appellate court should be mindful that\nwe do not “sit as the supreme trier of fact,” and instead are tasked with assessing only\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n“the impact of this erroneously admitted testimony on the jury.” [CITATION], quoting [CITATION]\nat fn. 5.\n {¶42} To convict Bradford of violating the protection order, the state had to\nprove that Bradford recklessly entered Spell’s place of employment in violation of the\nprotection order. Thus, in addition to proving recklessness and that the platform was\npart of Spell’s place of employment, the state had to prove identity—that the person\non the platform was Bradford.\n {¶43} Having reviewed the evidence at trial, I do not believe that there was\noverwhelming evidence that Bradford was on the platform. The only evidence the state\noffered to establish that element of the offense was Faulks’s testimony. And Faulks’s\ntestimony as to how she knew Bradford was vague. Faulks testified that she knew of\nBradford because when she was a streetcar operator, a person whose name she did not\nknow sat on a dangerous place on the platform. She did not know who that person was\nat the time, did not testify that she had ever seen him herself, and did not learn who\nhe was until “the incident that happened to” Spell. Faulks did not specify which\nincident or how she connected the person who had been sitting on the platform to\nBradford. Faulks spotted who she believed was Bradford while she was driving,\nthrough the passenger-side window. According to Faulks, she turned on her hazard\nlights and the person she identified as Bradford looked at the car and ran off.\n {¶44} The other-acts evidence was prejudicial by its very nature. A person\nthrowing urine at another person is vile. In terms of proving identity, I do not believe\nthe state established beyond a reasonable doubt that Spell’s testimony about this\nodious act was harmless. See [CITATION] at ¶ 32 (“blatant prejudice may override even a\nstrong case and require a new trial.”). While Faulks specifically described the clothing\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nthat the person on the platform wore, she only saw the person on the platform briefly.\nMoreover, Faulks did not clearly state how she knew Bradford was the person that had\nthrown urine on Spell or how she identified Bradford. The burden of satisfying the\nharmless-error standard falls on the state, and the standard is “a standard significantly\nmore favorable to the defendant.” [CITATION], at ¶ 15, quoting [CITATION]. Had the issue of identity been properly before us, I would be unable to\nconclude that the error in this case was harmless.\n {¶45} On appeal, however, Bradford did not argue that the state failed to prove\nthat he was the person standing on the streetcar platform. Instead, Bradford argued\nthat the platform was not part of Spell’s place of employment and that the state failed\nto prove that Bradford acted recklessly. Because I believe that the evidence definitively\nestablished that the streetcar platform was part of Spell’s place of employment and\nthat Bradford acted recklessly, I do not believe that the result would have changed had\nthe trial court refused to admit the other-acts evidence.\n {¶46} Accordingly, I concur separately in the majority’s opinion.\n\nPlease note:\n The court has recorded its own entry this date.\n \n[CITATION]\n\n COURT OF APPEALS OF OHIO\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\nSTATE OF OHIO, :\n Plaintiff-Appellee, :\n No. 113250\n v. :\nBEN MARTIN, :\n Defendant-Appellant. :\n\n JOURNAL ENTRY AND OPINION\n JUDGMENT: AFFIRMED\n RELEASED AND JOURNALIZED: June 6, 2024\n\n Criminal Appeal from the Cuyahoga County Court of Common Pleas\n Case No. CR-21-664130-A\n\n Appearances:\n Michael C. O’Malley, Cuyahoga County Prosecuting\n Attorney, and Gregory Paul and Kenan Mack, Assistant\n Prosecuting Attorneys, for appellee.\n Susan J. Moran, for appellant.\n\nSEAN C. GALLAGHER, J.:\n Ben Martin was convicted for the murder of Sean Wilkins, which\nresulted in a life term of imprisonment with the possibility of parole after 21 years.\nUpon our review of the arguments presented and in consideration of the entire record, we cannot conclude that his conviction is against the weight of the evidence.\nFor the following reasons, we affirm.\n Martin and Wilkins were acquainted. Martin was in a relationship,\nand had two children, with Wilkins’s cousin, who had four children in all. Wilkins\nkept tools, a trailer, and scrap metal at his cousin’s house and regularly stopped by\nearly in the morning before he started work for the day.\n A couple of weeks before the murder, Martin gave Wilkins $200 to\npurchase THC-infused butter from a third party. Wilkins delivered a tub, which was\nsupposed to have contained the product. Martin apparently put the tub in his freezer\nwithout checking its contents. A day before the murder, Martin opened the\n\n[SEGMENT 13]\ncontainer and discovered it contained grease, not butter. Martin contacted Wilkins,\nthrough text messaging, demanding his money back. After an extensive back and\nforth, Martin threatened Wilkins, telling him they should settle their dispute\nthrough a boxing duel. At one point, Wilkins agreed to take the container back and\ngive Martin half of the $200. Martin refused.\n Wilkins spent the day before his death fixing a vehicle with his\nbrother. Around seven o’clock in the evening, the night before his murder, they\nparted ways to go home. Wilkins’s girlfriend testified that he was at home the\nevening before his murder and did not leave until the early morning when Wilkins’s\nbrother picked him up to begin their day of work.\n Around five o’clock the next morning, Wilkins and his brother went\nto the cousin’s home to pick up some tools he had left on the porch. Wilkins also intended to leave $200 to settle the disagreement with Martin. According to\nWilkins’s brother, he intended to leave the money in the side window of the house\nafter finding the front door locked. It was when Wilkins was standing by that\nwindow that Martin shot Wilkins in the back from the roof of the house, which was\naccessible through a bedroom window.\n According to Martin, his testimony being the only evidence presented\nin his defense, when he and Wilkins talked on the phone the day before, Wilkins said\nhe was going to kill Martin after Martin suggested that they resort to fighting to\nresolve the dispute. Wilkins’s cousin supposedly told Martin to take that threat\nseriously, but why that was so has never been explained. Later in the afternoon,\nMartin drove around to try and find Wilkins in an effort to ease the tension. At one\npoint, Martin went to an area where an unrelated drive-by shooting occurred.\nMartin’s friend was killed in that shooting. There is no evidence identifying the\nshooter or the motive, but Martin believed that he was the intended target, claiming\nto have been grazed by two or three bullets on his fingers and ankle. When officers\ninterviewed Martin immediately after Wilkins’s murder, Martin showed the officers\nwhat they described as being minor scratches that did not appear to be bullet\nwounds. Martin believed that Wilkins was involved in the shooting and was chasing\nhim the entire night in several vehicles, none of which appeared to be vehicles that\nWilkins owned.\n Still according to Martin, after evading Wilkins’s pursuit all night, he\nentered the cousin’s house through the side window, on the alley-side of the house, a half hour before the shooting; Wilkins’s cousin told officers that Martin arrived a\ncouple of hours before the shooting. The front door faced the main street, and the\nside window faced the public alley. Martin claimed he did this because he was afraid\nWilkins would see him enter the front door. The window Martin used appears to be\nthe same window where Wilkins was shot.\n Around six o’clock in the morning, Martin heard the dog barking,\ndrawing his attention to a car driving in or near the public alley that runs along the\nside of the house. Martin believed that Wilkins was going to enter the home to harm\nthe cousin and her children and to try to kill him. He never explained why he\nbelieved Wilkins would target his cousin or her children. According to Martin, there\nwas no trailer or any reason for Wilkins to be near the house on the day of the\nmurder, so to him the activity was suspicious. It was then Martin climbed on the\nroof behind the house overlooking the public alley. It was still dark, but he saw a\nfigure he identified as Wilkins, standing by the window on the exterior wall abutting\nthe public alley. Martin fired several shots at Wilkins, hitting him in the back and\nunder the arm. Martin conceded that he did not see Wilkins with a weapon or take\nany steps to actually enter the house.\n Wilkins ran to his brother’s car, and his brother drove him to the\nemergency room. He died during surgery.\n At trial, Martin claimed he acted in self-defense of himself and others\nin the home, arguing that Wilkins intended to kill him or harm his family after\nbreaking into the house. The trial court, following the bench trial, concluded that the state had disproven at least one of the elements of self-defense beyond a\nreasonable doubt and found Martin guilty of murder and having a weapon while\nunder disability, with all other counts merging. The trial court also imposed two\nthree-year terms of imprisonment on two firearm specifications attendant to the\nmurder count and one of the merged offenses.1 This timely appeal followed.\n In the sole assignment of error, Martin claims his conviction is against\nthe weight of the evidence because his testimony conclusively established that he\nacted in self-defense.\n When evaluating a claim that a jury verdict is against the weight of\nthe evidence, appellate courts “review the entire record, weigh the evidence and all\nreasonable inferences, consider the credibility of witnesses, and determine whether\nin resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created\nsuch a manifest miscarriage of justice that we must reverse the conviction and order\na new trial.” [CITATION], ¶ 168, citing [CITATION], ¶ 17. Reversing a conviction\nbased upon the weight of the evidence should occur “‘only in the exceptional case in\nwhich the evidence weighs heavily against the conviction.’” [CITATION] at 387,\nquoting [CITATION].\n1 Imposing sentences on two of the firearm specifications, one of which was\nattendant to a merged offense, is required under the combined application of R.C.\n2929.14(B)(1)(g) and [CITATION].\n====== In order to disprove the claim of self-defense, the state must present\nevidence “‘beyond a reasonable doubt that the defendant: (1) was at fault in creating\nthe situation giving rise to the affray; (2) did not have reasonable grounds to believe\nor an honest belief that he or she was in imminent danger of bodily harm; or (3)\nviolated a duty to retreat or avoid danger.’” [CITATION], quoting [CITATION]. Id. at ¶ 11. “The test for a bona fide belief of\nimminent bodily harm is both objective and subjective: whether the defendant’s\nbelief is objectively reasonable and whether the defendant subjectively had an\nhonest belief of imminent bodily harm.” Id., quoting [CITATION].\n The trial court, in rendering its verdict, relied on the state’s evidence\ndemonstrating that Martin did not have an objectively reasonable belief that he was\nin imminent danger of bodily harm. According to the court, there was no evidence\nthat Wilkins was attempting to enter the home, or that he was even armed, and\nMartin could have taken other actions besides shooting Wilkins from behind as he\nstood in the public alley. See, e.g., [CITATION], ¶ 58 (video evidence demonstrated that the defendant shot the\nvictim as she was running away, and therefore, the jury did not lose its way in\nconcluding that the defendant’s action was unreasonable). Martin testified that he\ndid not know whether Wilkins had a weapon, but he just assumed he did because,\naccording to him, he believed that Wilkins was generally armed. Martin’s argument that the trier of fact lost its way in rejecting his\nassertion of self-defense is solely focused on his evidence to the exclusion of the\nstate’s evidence. It is well settled that “‘a conviction is not against the manifest\nweight of the evidence simply because the [trier of fact] rejected the defendant’s\nversion of the facts and believed the testimony presented by the state.’” [CITATION]; see also [CITATION]. We cannot conclude that the trier\nof fact lost its way.\n Initially, we agree that Martin’s evidence, his own testimony,\ndemonstrated an arguable basis to assert self-defense, which is why the trial court\nconsidered the question of self-defense and the state’s applicable burden of proof.2\nThe state, however, presented evidence that Wilkins was not armed or brandishing\n At oral argument, Martin referenced [CITATION], in support of his manifest-weight challenge. Palmer focused on the question\nwhether the appellate court erred in affirming the trial court’s decision to omit the self-\ndefense jury instruction at trial, a question not implicated by the procedural history of\nthis appeal. Id. at ¶ 1. Palmer has no bearing on appellate review of the weight of the\nevidence in support of the self-defense claim. Id. at ¶ 22 (“[T]he trial court’s attitude was\nunreasonable because the court looked at the persuasiveness of the evidence presented\nrather than the adequacy of the evidence presented.”). Palmer thus clarified that the\nquestion whether to give the jury instruction must be made solely in consideration of the\nadequacy of the evidence presented and “not its persuasiveness,” which is the sole issue\nin a manifest-weight challenge. See id. at ¶ 21. Palmer is not applicable to the sole\nargument presented. a firearm at the time of the murder, was not actively attempting to enter his cousin’s\nhouse, and had his back toward Martin when Martin began shooting from a\nconcealed position on the roof of the house. See, e.g., [CITATION] (defendant’s claim of self-defense\nwas not credible because the evidence showed the victim was shot in the back of the\nhead); see also [CITATION] (the\nevidence demonstrating that the victims were shot in the back disproved the\ndefendant’s theory of self-defense). Although there are some inconsistencies in the\nstate’s evidence, none of the inconsistencies rise to such a level as to impact the\n\n[SEGMENT 14]\noverwhelming evidence of Martin’s guilt.\n The only evidence supporting the imminent-danger component of the\nself-defense claim, i.e., that Wilkins intended to kill Martin, came from Martin’s self-\nserving testimony and statements to police officers. The trial court, sitting as the\nfactfinder, did not lose its way. Martin’s subjective belief that Wilkins intended to\ndo harm, a belief that was not supported with any other evidence, was not credible.\nThe evidence presented by the state demonstrated that Martin killed an unarmed\nman who was standing in the public alley by shooting him in the back from a\nconcealed position. Although Wilkins may have been near the window, Martin did\nnot claim that he was attempting to break into the building at the time of the\nshooting. In short, the trier of fact was free to reject Martin’s version of events and\nhe has not demonstrated that in resolving the credibility of the witnesses, the trier\nof fact clearly lost its way in finding Martin guilty of murder.\n====== Certainly, I will remove the citations as instructed. However, in this particular part of the court ruling provided, there are no explicit citation references to be replaced with either `[CITATION]` or `[CITATION]`. \nTherefore, the original text remains unchanged:\n\n Martin’s conviction for murder along with the two attendant firearm\nspecifications and the resulting life term of imprisonment with the possibility of\nparole after 21 years is affirmed.\n It is ordered that appellee recover from appellant costs herein taxed.\n The court finds there were reasonable grounds for this appeal.\n It is ordered that a special mandate issue out of this court directing the\ncommon pleas court to carry this judgment into execution. The defendant’s\nconviction having been affirmed, any bail pending appeal is terminated. Case\nremanded to the trial court for execution of sentence.\n A certified copy of this entry shall constitute the mandate pursuant to Rule 27\nof the Rules of Appellate Procedure.\n\n______________________\nSEAN C. GALLAGHER, JUDGE\nMARY J. BOYLE, P.J., and\nANITA LASTER MAYS, J., CONCUR ```markdown\nLorem ipsum dolor sit amet, consectetur adipiscing elit. In the case of People v. Whitaker, 2024 IL App (1st) 232009, the court considered the interpretation of recent statutes. Similarly, in State v. Warth,2021 IL 126802
, commonly referenced as \"state-v-warth\", crucial evidence was examined. Another similar case, People v. Deleon,2020 IL App (1st) 181681
, was instrumental in this decision. The recent ruling in Smith v. Jones, 2019 IL 123456 also provided precedents.\n```\n[CITATION]\n\n\n IN THE COURT OF APPEALS OF OHIO\n SECOND APPELLATE DISTRICT\n MONTGOMERY COUNTY\n STATE OF OHIO :\n :\n Appellee : C.A. No. 29919\n :\n v. : Trial Court Case No. 2021 CR 02340\n :\n ALEXIS CARTER : (Criminal Appeal from Common Pleas\n : Court)\n Appellant :\n :\n ...........\n OPINION\n Rendered on May 17, 2024\n ...........\nJOHNNA M. SHIA, Attorney for Appellant\nMATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee\n .............\nTUCKER, J.\n {¶ 1} Alexis Carter appeals from her conviction on two counts of felonious assault\nand accompanying firearm specifications.\n {¶ 2} Carter contends the trial court erred in its jury instructions on self-defense\nand defense of another. She also claims the jury’s rejection of self-defense and defense\nof another was against the weight of the evidence. -2-\n\n {¶ 3} We conclude that the trial court accurately instructed the jury and that the\nevidence supported a finding that Carter did not act in self-defense or defense of another\nwhen she shot two victims. Accordingly, the trial court’s judgment will be affirmed.\n I. Background\n {¶ 4} A grand jury indicted Carter on two counts of felonious assault (“serious\nphysical harm” and “deadly weapon”) for each of two victims. All counts included firearm\nspecifications. The charges stemmed from a shooting in the parking lot of Sporty’s Tap\nRoom and Grill in Harrison Township shortly after midnight on July 10, 2021.\n {¶ 5} The case proceeded to a jury trial in July 2023. The only real issue was\nwhether Carter had shot the two victims, Jasmine Patterson and Jasmine Woodard, in\nself-defense. Prior to the shooting, the victims had been eating, drinking, and dancing at\nSporty’s with Lesonya Williams and Lea Tyler. Shortly before midnight, Carter arrived at\nthe bar with her friend Tenisha Maston. Carter and Patterson previously had been\ninvolved in a relationship, but they no longer were.\n {¶ 6} Around midnight, the two victims and their friends decided to leave the bar\nabout the same time that Carter and Maston decided to leave. While exiting the bar,\nCarter allegedly pushed Tyler into a door. Carter and Maston proceeded to their vehicle\nwhich was parked next to Patterson’s car. The victims’ group followed Carter and Maston\noutside. The events that followed, which led up to and included the shooting, were\ndisputed at trial.\n {¶ 7} The State presented evidence that Carter began cursing, ran up to Williams,\nand started “swinging.” For her part, Carter testified that Williams approached her and -3-\n\nspit on her before “mutual combat” ensued. The fight evolved into a melee involving\neveryone but Tyler, who did not participate. There was testimony that the fight subsided\nbefore reigniting. In any event, security personnel ultimately used mace to break up the\naltercation. Carter testified that she lost her glasses during the fight and could not see\nanything after being sprayed with mace. At that point, the fight appeared to have stopped,\nat least temporarily, and security left.\n {¶ 8} Carter then entered the passenger’s side of Maston’s vehicle. The parties\npresented divergent testimony about whether Carter stopped fighting and entered the car\nof her own accord or whether Maston effectively forced her into the car. Woodard\ncontinued “yelling and screaming” and approached Maston’s vehicle. Woodard admitted\nyelling, “I want to see blood.” She also opened the driver’s side door of Maston’s vehicle\nand threw “gravel” or “rocks” inside. Woodard described the “gravel” as “little bitty broken\nup pellets.” Eyewitness Mary Hall, who was called by the defense and who contacted\ndefense counsel shortly before trial, testified that she saw “gravel,” which she described\nas “rocks,” being thrown. On redirect examination by defense counsel, she characterized\nthe rocks as being about the size of a hand. A detective testified that he later observed\n“some rocks in there, some gravel.” For her part, Carter testified that she felt a rock hit\nher head. Although no car windows were broken, she also stated that she felt shattering\nglass hit her head.\n {¶ 9} While testifying in her own defense, Carter stated that under the foregoing\ncircumstances she feared for her life and did not know whether she would make it home\nthat night. Carter testified that she and Maston were prevented from leaving. Carter stated -4-\n\nthat she was being hit with rocks and Maston was being “attacked.” After being hit in the\nhead with a rock, she became “fed up.” Although still unable to see due to the mace and\nthe loss of her glasses, she felt around inside Maston’s car and retrieved a loaded\nhandgun. She stepped out of the car and fired three shots. Carter claimed that she\nintended to shoot in the air, but one bullet struck Patterson in the buttocks and one struck\nWoodard in the chest. At the time of the shooting, both victims were on the other side of\nthe car from Carter. Despite the fact that two of her three shots struck Patterson and\nWoodard, Carter insisted on cross-examination that she could not see and that her intent\nwas not to hit anyone.\n {¶ 10} In contrast to Carter’s version of events, Williams testified that all fighting\nhad ceased when Carter fired the handgun. According to Williams, Patterson was bent\nover picking up glasses in the parking lot when Carter shot her in the buttocks. Williams\nstated that no one was around Carter, who was “by herself.”\n {¶ 11} Woodard testified that after throwing gravel in Maston’s car she shut the car\ndoor and helped Patterson pick up a cell phone and keys in the parking lot. She and\nPatterson were facing each other and talking as they prepared to walk toward their own\nvehicle. At that point, she watched Carter exit Maston’s car, reach over the passenger-\nside door, and fire the handgun.\n {¶ 12} Patterson similarly testified that she was picking up items in the parking lot,\nincluding a purse, keys, and glasses, when she looked back and saw Carter on the other\nside of the car holding a handgun. Patterson testified that she heard Carter say, “man,\n\n[SEGMENT 15]\nf**k this,” before firing the weapon three times. Patterson stated that no one was throwing -5-\n\nanything when she and Woodard were shot.\n {¶ 13} Tyler also testified that Patterson and Woodard were doing nothing other\nthan picking up items and proceeding to their own car when Carter shot them. Tyler\nwatched as Carter “started firing” from the passenger’s side of Maston’s car.\n {¶ 14} Finally, eyewitness Hall testified that she did not see where the two victims\nwere when Carter shot them. She also did not see where Carter was when she fired the\nhandgun.\n {¶ 15} Following the presentation of evidence, the trial court provided the jury with\nrelatively lengthy instructions on the law of self-defense. Defense counsel objected to the\nextent that they deviated in part from standard form Ohio Jury Instruction (OJI) self-\ndefense instructions. The trial court overruled the objection.\n {¶ 16} The jury found Carter guilty on two counts of felonious assault (“serious\nphysical harm” and “deadly weapon”) with firearm specifications as to each victim.\nFollowing merger of allied offenses, the trial court sentenced Carter on two counts of\nfelonious assault and two firearm specifications. It imposed concurrent prison terms of\ntwo to three years for the felonious-assault convictions. It imposed three-year prison\nterms on each firearm specification and ordered those terms to be served consecutively\nto each other and consecutively to the concurrent felonious-assault sentences. The result\nwas an aggregate prison term of eight to nine years. Carter appealed, advancing two\nassignments of error.\n II. Analysis\n {¶ 17} The first assignment of error states: -6-\n\n The Trial Court abused its discretion when it instructed the jury on\n self-defense and defense of another.\n {¶ 18} Although the trial court instructed the jury on self-defense and properly\nplaced the burden on the State to disprove the claim beyond a reasonable doubt, Carter\ncontends the trial court instructions were “confusing, inconsistent, and improper.”\n {¶ 19} Carter first challenges an instruction identifying five alternative ways the\nState could disprove self-defense. The instruction stated:\n * * * A person is allowed to use deadly force in self-defense. The\n State must prove beyond a reasonable doubt that the Defendant, when\n using deadly force, did not act in self-defense. To prove that the Defendant’s\n use of deadly force was not in self-defense, the State must prove beyond a\n reasonable doubt at least one of the following: the Defendant was at fault in\n creating a situation giving rise to the shooting; or the Defendant did not have\n reasonable grounds to believe that she was in imminent or immediate\n danger of death or great bodily harm; or the Defendant did not have a\n honest belief, even if mistaken, that she was in imminent danger of death\n or great bodily harm; or the Defendant violated a duty to retreat to avoid the\n danger; or the Defendant used unreasonable force.\nTrial Transcript Vol. II at 427.\n {¶ 20} In challenging the foregoing instruction, Carter contends the duty to retreat\nhas been removed from the elements of self-defense. Therefore, she claims a violation\nof that duty should not have been identified as a way to disprove self-defense. Carter -7-\n\nconcedes that a jury still may consider the potential for “withdrawal” when a defendant is\nthe initial aggressor. She maintains, however, that withdrawal by an initial aggressor\ninvolves a different issue than a more general duty to retreat to avoid danger. That being\nso, Carter argues that the duty to retreat should not have been mentioned and that\nwithdrawal should have been addressed in the context of her potentially being an at-fault\ninitial aggressor.\n {¶ 21} Upon review, we find Carter’s argument to be unpersuasive. After\ninstructing the jury that violation of a duty to retreat was one way to disprove self-defense,\nthe trial court gave the following additional instruction: “The Defendant had no duty to\nretreat before using force in self-defense if the Defendant was in a place in which she\nlawfully had the right to be.” [CITATION]. The trial court also instructed the jury: “In\ndetermining whether the Defendant, in using force in self-defense, reasonably believed\nthat the force was necessary to prevent injury, loss, or risk of life or safety, you may not\nconsider the possibility of retreat by the Defendant.” [CITATION]. These instructions accurately\nstated the law. See R.C. 2901.09(B) and (C).\n {¶ 22} Having reviewed the entirety of the trial court’s instructions, which the jury\nwas presumed to have followed, we have no reason to believe that the jury rejected self-\ndefense based on a finding that Carter violated a duty to retreat. Notably, the State did\nnot present evidence or argument suggesting that self-defense was inapplicable because\nCarter violated a duty to retreat. The State did not claim Carter lacked a right to be in the\nparking lot. Therefore, the trial court’s provision of accurate instructions on the issue,\nwhile perhaps unnecessary given the dearth of evidence that Carter was in the parking -8-\n\nlot unlawfully, was unlikely to have misled or confused the jury. [CITATION]\n {¶ 23} With regard to Carter’s argument that the trial court should have instructed\nthe jury about “withdrawal” in the context of an at-fault, initial-aggressor defendant, that\nis precisely what the trial court did. It instructed the jury as follows:\n Defendant did not act in self-defense if the State proved beyond a\n reasonable doubt that the Defendant was at fault in creating the situation\n that resulted in the injury.\n The Defendant was at fault if the Defendant was the initial aggressor\n and one of the following apply: * * * Defendant did not withdraw from the\n situation; [or] the Defendant withdrew from the situation, but did not inform\n Jasmine Patterson and/or Jasmine Woodard or reasonably indicate by\n words or acts to Jasmine Patterson or Jasmine Wood of her withdrawal.\nId. at 428.\n {¶ 24} We see nothing objectionable about the foregoing instruction, which again\nwas a correct statement of the law. See [CITATION] (“But R.C. 2901.09(C) is not an absolute prohibition on introducing\nevidence involving the possibility of retreat. Rather, the statute only prohibits fact finders\nfrom considering evidence involving the possibility of retreat to determine whether the\ndefendant’s belief that force was necessary was reasonable. Fact finders may, however,\nconsider retreat evidence to determine who was at fault in creating the situation leading\nto the affray.”); [CITATION] -9-\n\n(“While a person no longer has a duty to retreat from a place he or she is lawfully permitted\nto be, there is no language in the amended statute to suggest a trier of fact is precluded\nfrom considering whether the defendant was the initial aggressor or whether the\ndefendant attempted to withdraw from the situation when determining whether the\ndefendant was at fault in creating the situation giving rise to the affray. The narrow\nlanguage of the amended statute does not place on triers of fact express restrictions on\nconsideration of fault.”); [CITATION] at ¶ 49 (“[A]s a general matter, if a person provokes or\nvoluntarily enters a fight, that person can revive his or her right to self-defense by\nwithdrawing from that altercation. It follows that a person generally cannot claim self-\ndefense if that person provoked or voluntarily entered a fight and did not withdraw from\nthe altercation.”).\n {¶ 25} Carter next challenges an instruction stating: “The Defendant did not act in\nself-defense if the State proved beyond a reasonable doubt that the Defendant used more\nforce than reasonably necessary and the force used was greatly disproportionate to the\napparent danger.” Trial Transcript Vol. II at 429-430. Carter contends this instruction\nshould not have been presented as a “separate option” to defeat self-defense but rather\n“as a consideration as to the second element of self-defense.”\n {¶ 26} We are unsure precisely what Carter means, and the cases she cites do not\nsupport the proposition that the trial court erred in giving an instruction regarding the use\nof more force than reasonably necessary and force that was greatly disproportionate to\nthe danger. Carter appears to suggest that the trial court should have broken self-defense\ndown into only two elements rather than five or even more in the present case. In [CITATION] -10-\n\nv. Nicholson, [CITATION], however, the Ohio\nSupreme Court recently approved self-defense instructions quite similar to those given in\nCarter’s case. In Nicholson, the trial court’s instructions identified four elements of self-\ndefense. Id. at ¶ 170. One of the four elements combined the need for the defendant to\nhave an objectively reasonable belief and a true subjective belief that he was in immediate\ndanger of death or great bodily harm. The trial court gave the same instructions in Carter’s\ncase except that it identified five elements of self-defense by instructing on the objectively\nreasonable and subjective beliefs separately. In Nicholson, the Ohio Supreme Court\nfound nothing improper about the trial court dividing self-defense into four elements in its\ninstructions and requiring the prosecution to disprove only one of them. Id. at ¶ 171. We\nreach the same conclusion in Carter’s case, which involved substantially-similar\ninstructions.\n {¶ 27} As in the present case, the trial court in Nicholson also separately instructed\nthe jury: “If the defendant used more force than reasonably necessary and if the force\n\n[SEGMENT 16]\nused is greatly disproportionate to the apparent danger, then the defense of self-defense\nis not available.” Id. at ¶ 170. We see nothing improper about the trial court giving a\nsubstantially-similar instruction in Carter’s case. Once again, this instruction was a correct\nstatement of the law. [CITATION]. It also was pertinent\nto the evidence presented.\n {¶ 28} In her reply brief, Carter acknowledges that existing standard OJI\ninstructions may not be “a correct statement of law” due to recent stand-your-ground -11-\n\nlegislation and case law concerning a defendant’s use of excessive or disproportionate\nforce. She also recognizes that “case law supports the independent instructions” given by\nthe trial court. She reasons, however, that when the trial court’s instructions are “taken\ntogether” they become confusing and unclear. Having thoroughly examined the trial\ncourt’s instructions on self-defense, we reject Carter’s assertion that they were “confusing\nat best, if not improper,” and that they deprived her of a fair trial.\n {¶ 29} With regard to defense of another (her friend Maston), Carter simply\nreferences the self-defense arguments we rejected above and states: “Likewise, and for\nthe same reasons, the trial court abused its discretion when it gave the jury instructions\non the same five options that the State had to disprove Carter’s defense of another claim.”\nFor the same reasons that the trial court did not err in instructing the jury on self-defense,\nwe conclude that it did not err in providing substantially-similar instructions regarding\ndefense of another. Accordingly, the first assignment of error is overruled.\n {¶ 30} The second assignment of error states:\n The Manifest Weight of the Evidence Supported Carter’s Self-Defense\n and Defense of Another Claims.\n {¶ 31} Carter contends her convictions were against the manifest weight of the\nevidence. She argues that the evidence supported a finding that she acted in self-defense\nand in defense of Maston. In particular, Carter asserts that she had no duty to retreat,\nthat she was not at fault, and that she possessed an objectively reasonable and subjective\nfear of death or great bodily harm when she shot the victims. Carter contends she was\nbeing verbally threatened with violence, struck with large rocks, and prevented from -12-\n\nleaving when she fired the handgun. Under these circumstances, she asserts that a\nfinding of no self-defense was against the weight of the evidence.\n {¶ 32} When a conviction is challenged on appeal as being against the weight of\nthe evidence, an appellate court must review the entire record, weigh the evidence and\nall reasonable inferences, consider witness credibility, and determine whether, in\nresolving conflicts in the evidence, the trier of fact “clearly lost its way and created such\na manifest miscarriage of justice that the conviction must be reversed and a new trial\nordered.” [CITATION]. A judgment should be reversed as being against the manifest weight of the evidence “only\nin the exceptional case in which the evidence weighs heavily against the conviction.”\n[CITATION].\n {¶ 33} “Because the factfinder * * * has the opportunity to see and hear the\nwitnesses, the cautious exercise of the discretionary power of a court of appeals to find\nthat a judgment is against the manifest weight of the evidence requires that substantial\ndeference be extended to the factfinder’s determinations of credibility. The decision\nwhether, and to what extent, to credit the testimony of particular witnesses is within the\npeculiar competence of the factfinder, who has seen and heard the witness.” [CITATION]. “The fact\nthat the evidence is subject to different interpretations does not render the conviction\nagainst the manifest weight of the evidence.” [CITATION].\n {¶ 34} With the foregoing standards in mind, we reject Carter’s manifest-weight -13-\n\nchallenge predicated on self-defense and defense of another. At a minimum, the jury\nreasonably could have concluded that she lacked an objectively reasonable belief that\nshe or Maston was in imminent danger of death or great bodily harm when she shot the\nvictims. Carter claimed that she was trapped, helpless, terrified, and blind when she fired\nthe handgun in response to being verbally threatened and assaulted with large rocks.\n {¶ 35} In contrast to Carter’s version of events, the State’s witnesses testified that\nall fighting had ceased when Carter fired the handgun. According to Williams, Patterson\nwas bent over picking up glasses when Carter shot her in the buttocks. Williams testified\nthat Carter was “by herself.” Woodard similarly testified that she had shut Maston’s car\ndoor after throwing gravel inside the car and that she was helping Patterson pick up\nobjects. Patterson testified that no one was throwing anything when Carter fired the\nhandgun. Patterson also heard Carter say, “man, f**k this”, before firing the weapon. Tyler\ntestified that Patterson and Woodard were doing nothing other than picking up items and\nproceeding to their own car when Carter shot them. A video introduced into evidence\ndepicted Carter pacing back and forth with no one in her immediate vicinity just before\nthe shooting. After entering the car, she exited again with a firearm, placed herself\nbetween the door and the car’s frame, and fired three shots.\n {¶ 36} We note too that the jury certainly could have found aspects of Carter’s\ntestimony to be not credible. Although she claimed to have feared for her life, she testified\nthat she was “fed up” when she shot the victims. This testimony suggests anger or\nretaliation more than fear. Despite purportedly having been blinded by mace, Carter also\nclaimed to have felt a loaded weapon with a chambered bullet in Maston’s car. She then -14-\n\nmanaged to hit the victims with two of the three shots she fired, despite claiming that did\nnot intend to hit them at all.\n {¶ 37} Although the parties disputed what had occurred in the bar and during the\nprotracted fight in the parking lot, the jury reasonably could have concluded based on the\nvideo evidence and the testimony of the State’s witnesses that Carter and Maston were\nnot in imminent danger of death or great bodily harm when Carter shot the victims.\nConsequently, the jury’s finding of no self-defense and no defense-of-another was\nsupported by the manifest weight of the evidence.\n III. Conclusion\n {¶ 38} The judgment of the Montgomery County Common Pleas Court is affirmed.\n .............\nEPLEY, P.J. and LEWIS, J., concur. \n[Cite as [CITATION].]\n\n\n IN THE COURT OF APPEALS OF OHIO\n THIRD APPELLATE DISTRICT\n UNION COUNTY\n\n\nSTATE OF OHIO,\n CASE NO. 14-23-12\n PLAINTIFF-APPELLEE,\n v.\nROSSTIN GUY BENDER, OPINION\n DEFENDANT-APPELLANT.\n\n Appeal from Union County Common Pleas Court\n Trial Court No. 2022-CR-0106\n Judgment Affirmed\n Date of Decision: May 6, 2024\n\nAPPEARANCES:\n Alison Boggs for Appellant\n David W. Phillips for Appellee Case No. 14-23-12\n\n\nZIMMERMAN, J.\n {¶1} Defendant-appellant, Rosstin G. Bender (“Bender”), appeals the March\n22, 2023 judgment entry of sentence of the Union County Court of Common Pleas.\nFor the reasons that follow, we affirm.\n {¶2} This case stems from an April 29, 2022 altercation between Bender and\nthe victim, B.H., during which Bender stabbed B.H. with a knife nine times. On\nApril 29, 2022, B.H., along with his girlfriend, Faith Selover (“Faith”) and her\nbrother, Joel Selover (“Joel”), invited Dean Smith (“Smith”), Bender, and Star\nMentzer (“Mentzer”), Bender’s girlfriend, to the residence that the three shared to\n“see and enjoy for a campfire” the landscape lighting that they installed in their\nbackyard. (Feb. 6, 2023 Tr., Vol. II, at 33). During the gathering, “the lights kept\ngetting kicked over and kicked down, stepped on[, so B.H.] asked several times to\nplease watch the lights.” (Id. at 37). According to B.H., when he and Bender were\n“bickering back and forth about the lights,” Bender discharged a firearm into the\nground. (Id. at 38). Joel testified that he believed that Bender “discharged the gun\ninto the ground * * * to diffuse the situation.” (Id. at 83).\n {¶3} Later, when B.H. returned outside “after using the bathroom[, he saw]\nthat the lights were kicked over again.” (Id. at 40). Because Mentzer giggled after\nB.H. inquired about “who kicked over the lights,” B.H. asked Bender and Mentzer\nto “leave” “if they think it’s funny * * * .” (Id.). Instead of leaving, Bender “asked\n Case No. 14-23-12\n\nif [B.H.] wanted to fight him” and B.H. agreed. (Id.). According to B.H., Bender\nthen traversed 15-to-20 feet to reach him. However, before Bender could get to\nB.H., Faith “tried to come in the middle between [them] to put her arms out and\nseparate the distance.” (Id. at 47). Nevertheless, Bender “swung past her” and “hit\n\n[SEGMENT 17]\n[B.H.] first.” (Id. at 48). “[T]he last thing [B.H. could] remember is holding Mr.\nBender on top of [him] and [Faith] pulling Bender off of [him] and [Joel] pulling\n[B.H.] back off the ground.” (Id. at 49). B.H. did not know that he had been stabbed\nuntil he tried to stand.\n {¶4} On May 6, 2022, the Union County Grand Jury indicted Bender on\nCounts One and Two of felonious assault in violation of R.C. 2903.11(A)(1),\n(D)(1)(a), second-degree felonies, and Count Three of using weapons while\nintoxicated in violation of R.C. 2923.15(A), (B), a first-degree misdemeanor. On\nMay 10, 2022, Bender appeared for arraignment and pleaded not guilty to the counts\nalleged in the indictment.\n {¶5} On October 4, 2022, Bender filed a notice of self-defense under Crim.R.\n12.2 stating that he intended\n to present evidence that on April 22, 2022 [sic], the alleged victim *\n * * punched [Bender] in the face without justification and used his\n forearm to compress [Bender’s] throat while on the ground to the\n point he could not breathe; and that [Bender] had reasonable grounds\n to believe, and honestly believed, he was imminent or immediate\n danger of death or great bodily harm, at the time he defended himself\n with a knife.\n Case No. 14-23-12\n\n(Doc. No. 44). On October 7, 2022, the State filed a memorandum in opposition to\nBender’s notice of self-defense. That same day, the State filed a motion in limine\nrequesting that the trial court prevent Bender “from introducing specific instance\n[sic] of conduct by the victim in this matter unless and until [Bender] establishes\nthose instances of conduct are relevant and otherwise admissible to his claim of self-\ndefense.” (Doc. No. 48).\n {¶6} On January 31, 2023, the State filed another motion in limine requesting\nthat the trial court prevent Bender “from introducing specific instances of conduct\nto prove the victim was the initial aggressor in support of his claim of self-defense.”\n(Doc. No. 78). On February 6, 2023, Bender filed a memorandum in opposition to\nthe State’s motion in limine. That same day, Bender requested that the trial court\ninstruct the jury on self-defense and the inferior-degree offense of aggravated\nassault.\n {¶7} The case proceeded to a jury trial on February 6-8, 2023. On February\n8, 2023, the jury found Bender guilty of the counts alleged in the indictment.\n {¶8} On March 22, 2023, the trial court sentenced Bender to a minimum term\nof five years in prison to a maximum term of seven and one-half years in prison on\nCount One and 180 days in jail on Count Three. (Doc. No. 91). The trial court\nordered that Bender serve the terms concurrently. Further, the trial court merged\nCounts One and Two for purposes of sentencing.\n Case No. 14-23-12\n\n {¶9} Bender filed his notice of appeal on April 20, 2023. He raises seven\nassignments of error for our review. For ease of our discussion, we will begin by\ndiscussing Bender’s first and sixth assignments of error together; followed by his\nsecond assignment of error; then together his third, fourth, and fifth assignments of\nerror; and finally his seventh assignment of error.\n First Assignment of Error\n The Jury Lost Its Way When Reviewing The Evidence Presented\n For Guilt Contrasted With The Evidence Of Self-Defense,\n Resulting In A Verdict That Is Against The Manifest Weight Of\n The Evidence.\n Sixth Assignment of Error\n The Trial Court Erred When It Overruled Appellant’s Motion\n For A Criminal Rule 29 Acquital [sic].\n {¶10} In his first and sixth assignments of error, Bender argues that his\nfelonious-assault convictions are based on insufficient evidence and are against the\nmanifest weight of the evidence. On appeal, Bender does not dispute that the State\nproved the elements of felonious assault. Rather, Bender contends that his\nfelonious-assault convictions are based on insufficient evidence and are against the\nmanifest weight of the evidence because he “presented evidence by a preponderance\nof the evidence that he acted in self-defense, and the State failed to prove beyond a\nreasonable doubt that it was not self-defense * * * .” (Appellant’s Brief at 11).\n Case No. 14-23-12\n\n Standard of Review\n {¶11} Under Crim.R. 29(A), a court “shall order the entry of the judgment\nof acquittal of one or more offenses * * * if the evidence is insufficient to sustain a\nconviction of such offense or offenses.” Consequently, “[a] motion for acquittal\nunder Crim.R. 29(A) is governed by the same standard as the one for determining\nwhether a verdict is supported by sufficient evidence.” [CITATION], ¶ 37.\n {¶12} “An appellate court’s function when reviewing the sufficiency of the\nevidence to support a criminal conviction is to examine the evidence admitted at\ntrial to determine whether such evidence, if believed, would convince the average\nmind of the defendant’s guilt beyond a reasonable doubt.” [CITATION], paragraph two of the syllabus, superseded by state constitutional\namendment on other grounds, [CITATION]. Accordingly,\n“[t]he relevant inquiry is whether, after viewing the evidence in a light most\nfavorable to the prosecution, any rational trier of fact could have found the essential\nelements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the\nevidence was sufficient, we neither resolve evidentiary conflicts nor assess the\ncredibility of witnesses, as both are functions reserved for the trier of fact.” [CITATION], ¶ 33.\nSee also [CITATION], ¶ 19\n Case No. 14-23-12\n\n(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight\nof the evidence.”).\n {¶13} On the other hand, in determining whether a conviction is against the\nmanifest weight of the evidence, a reviewing court must examine the entire record,\n“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of\nwitnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier\nof fact] clearly lost its way and created such a manifest miscarriage of justice that\nthe conviction must be reversed and a new trial ordered.’” [CITATION] at 387,\nquoting [CITATION], 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing\ncourt must, however, allow the trier of fact appropriate discretion on matters relating\nto the weight of the evidence and the credibility of the witnesses. [CITATION],\n10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,\n“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the\nconviction,’ should an appellate court overturn the trial court’s judgment.” [CITATION],\nquoting [CITATION], 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.\n Sufficiency of the Evidence\n {¶14} As an initial matter, even though Bender challenges the sufficiency\nand the weight of the evidence supporting the jury’s finding of guilt as to the\nfelonious-assault charge under Count Two of the indictment, we need not address\nthat argument. Accord [CITATION], 3d Dist. Hardin No. 6-18-07, 2019-Ohio-\n Case No. 14-23-12\n\n4123, ¶ 11. “Specifically, ‘[w]hen counts in an indictment are allied offenses, and\nthere is sufficient evidence to support the offense on which the state elects to have\nthe defendant sentenced, the appellate court need not consider the sufficiency [or\nweight] of the evidence on the count that is subject to merger because any error\nwould be harmless’ beyond a reasonable doubt.” Id., quoting [CITATION].\n {¶15} In this case, error, if any, with respect to the sufficiency or weight of\nthe evidence as to the jury’s finding of guilt as to Bender’s felonious-assault charge\nunder Count Two is harmless beyond a reasonable doubt because it was merged\nwith Count One. Accord id. at ¶ 12; [CITATION] at ¶ 13. In other words, Bender was not\nconvicted of the felonious-assault offense alleged under Count Two because the trial\ncourt merged that offense for purposes of sentencing. Accord [CITATION] at ¶ 12.\nIndeed, the Supreme Court of Ohio has explicitly stated that a “conviction” requires\nboth a finding of guilt and a sentence. [CITATION] at ¶ 16. For these reasons, we need\nnot address any arguments challenging the sufficiency or weight of the evidence\nregarding the jury’s finding of guilt as to Bender’s felonious-assault charge under\n\n[SEGMENT 18]\nCount Two. Accord [CITATION] at ¶ 12; [CITATION] at ¶ 13, 18.\n {¶16} Therefore, we will begin by addressing Bender’s sufficiency-of-the-\nevidence argument as it relates to his felonious-assault conviction under Count One.\nOn appeal, Bender argues that the trial court erred by denying his Crim.R. 29 motion\nbecause the State failed to prove beyond a reasonable doubt that he did not act in\n Case No. 14-23-12\n\nself-defense. Decisively, Bender’s challenge to the sufficiency of the evidence as\nto self-defense is inappropriate. Accord [CITATION].\n {¶17} Traditionally, “[s]elf-defense is an affirmative defense, and the\naccused bears the burden of proving it by a preponderance of the evidence.” [CITATION]\nat ¶ 11. “However, effective March 28, 2019, the General Assembly modified\nOhio’s self-defense statute, R.C. 2901.05, to place the burden on the state to prove\nbeyond a reasonable doubt that the accused did not act in self-defense.” [CITATION] Currently,\n“[e]vidence as to all elements of self-defense must be presented at trial in order for\na defendant to be acquitted, but to overcome the claim, the state need only disprove\none element of the defense by proof beyond a reasonable doubt.” Id. at ¶ 31.\n“Moreover, any presumption as to the use of force in self-defense ‘may be rebutted\nby a preponderance of the evidence, provided that the prosecution’s burden of proof\nremains proof beyond a reasonable doubt as described in’ R.C. 2901.05(B)(1).” Id.,\nquoting R.C. 2901.05(B)(4).\n {¶18} Nevertheless, “there is no due-process right to a presumption of an\naffirmative defense such as self-defense.” [CITATION] at ¶ 19. Thus, notwithstanding “the shift in the burden of proof by the\namendment to R.C. 2901.05, the absence of self-defense is not an essential element\n Case No. 14-23-12\nof any offense that the state carried the burden of proving at trial.” [CITATION] at ¶ 36.\nSee also [CITATION], 10th Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶\n43 (concluding that “there is nothing in the current version of R.C. 2901.05(B)(1)\nindicating that by shifting the burden of proof on the affirmative defense of self-\ndefense, the General Assembly intended to transform the absence of self-defense\ninto an essential element of a criminal offense”). Consequently, “[Bender’s] claim\nof self-defense is not an aspect of a sufficiency of the evidence or Crim.R. 29\nanalysis, and the trial court did not err [by denying his] Crim.R. 29 motion [in light\nof his] self-defense claim.” [CITATION] at ¶ 36. Therefore, we will address Bender’s\nself-defense argument only in our analysis of the manifest weight of the evidence.\nId.\n Manifest Weight of the Evidence\n {¶19} Bender was convicted of felonious assault in violation of R.C.\n2903.11(A)(1). R.C. 2903.11 provides, in its relevant part, that “[n]o person shall\nknowingly * * * [c]ause serious physical harm to another * * * .” R.C.\n2903.11(A)(1). Bender does not dispute that the State proved the elements of that\noffense. Rather, Bender argues that the jury lost its way in concluding that he did\nnot act in self-defense.\n {¶20} Under Ohio’s current self-defense statute, “a defendant claiming self-\ndefense has the burden of production—that is, the burden of producing evidence\nthat ‘tends to support’ his use of force in defending himself.” [CITATION]\n Case No. 14-23-12\n\n[CITATION]. Thus, “if evidence is presented ‘that tends to\nsupport’ that the defendant used the force in self-defense, the prosecution must\nprove beyond a reasonable doubt that the accused did not act in self-defense.”\n(Emphasis sic.) [CITATION],\n¶ 43. “Accordingly, ‘the burden of proof for * * * self-defense has shifted to the\nstate,’ but ‘the burden of production for * * * self-defense[ ] remains with the\ndefendant.’” (Emphasis sic.) [CITATION],\n¶ 104, quoting [CITATION], at ¶ 44.\n {¶21} “Self-defense is an affirmative defense that, if proved, relieves a\ndefendant of criminal liability for the force that the defendant used.” [CITATION] at ¶\n43. “The elements of self-defense differ depending on whether the defendant used\ndeadly or non-deadly force to defend himself.” [CITATION], at ¶ 15.\nDeadly force is “any force that carries a substantial risk that it will proximately\nresult in the death of any person.” R.C. 2901.01(A)(2). A “substantial risk” is “a\nstrong possibility, as contrasted with a remote or significant possibility, that a\ncertain result may occur or that certain circumstances may exist.” R.C.\n2901.01(A)(8). In most situations, “stabbing a victim (or victims) with a knife\nconstitutes the use of deadly force.” [CITATION],\n¶ 15.\n To establish self-defense through the use of deadly force, an accused\n must prove: “(1) the accused was not at fault in creating the situation\n giving rise to the affray; (2) the accused had a bona fide belief that he\n Case No. 14-23-12\n\n or she was in imminent danger of death or great bodily harm and that\n the only means of escape from such danger was in the use of force;\n and (3) the accused must not have violated any duty to retreat or to\n avoid the danger.”\n[CITATION] at ¶ 16, quoting [CITATION], ¶ 14. Generally, “a person is privileged only to ‘use as much force as is\nreasonably necessary to repel [an] attack.’” [CITATION], quoting [CITATION], ¶ 61.\n {¶22} “[T]he State must ‘disprove at least one of the elements of self-defense\nbeyond a reasonable doubt.’” [CITATION], ¶ 29, quoting [CITATION], ¶ 31. “‘The elements of self-defense are cumulative, and a\ndefendant’s claim of self-defense fails if any one of the elements is not present.’”\nId., quoting [CITATION], ¶ 15.\n {¶23} On appeal, Bender contends that the evidence that he presented at trial\nthat he acted in self-defense is weightier than the evidence presented by the State\nthat he did not. In support of this argument, Bender points to the inconsistencies of\nB.H.’s, Joel’s, and Faith’s testimonies. Specifically, Bender contends that “the\nState’s evidence regarding the logistics of the fight is contrary to [findings of the\nemergency room doctor who B.H.], creating doubt on the credibility of its witnesses\n Case No. 14-23-12\n\nin their entirety.” (Appellant’s Brief at 5). That is, Bender contends that “the\nplacement of [B.H.’s] wounds is consistent with [B.H.] being on top of Mr. Bender\nand Mr. Bender doing whatever he could to get [B.H.] off of him because he was\nbeing choked.” (Id. at 11). Consequently, Bender argues that the weight of the\nevidence supports that he acted in self-defense. In other words, Bender contends\nthat his version of the incident is more credible than B.H.’s, Joel’s, and Faith’s\nversion.\n {¶24} “Although we review credibility when considering the manifest\nweight of the evidence, the credibility of witnesses is primarily a determination for\nthe trier of fact.” [CITATION], ¶ 13, citing [CITATION], at paragraph one of the syllabus. “The trier\nof fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]\nand voice inflections, and use these observations in weighing the credibility of the\nproffered testimony.’” Id., quoting [CITATION], ¶ 24, citing [CITATION].\n {¶25} Notwithstanding Bender’s contention that B.H.’s, Joel’s, and Faith’s\ntestimonies conflict with the medical evidence, “we are mindful of the jury’s\n‘superior first-hand perspective in judging the demeanor and credibility of\nwitnesses.’” [CITATION], ¶ 33,\nquoting [CITATION], ¶ 125.\n Case No. 14-23-12\n\nCritically, it is well within the province of the trier-of-fact to determine the\ncredibility of B.H.’s, Joel’s, Faith’s, and Bender’s testimonies, including the\nprerogative to find Bender’s version of events not to be truthful. Accord [CITATION]. Indeed, the trier of\nfact was free to believe or disbelieve B.H.’s, Joel’s, and Faith’s testimonies (or\n\n[SEGMENT 19]\nBender’s testimony) or accept part of what B.H., Joel, Faith, and Bender said and\nreject the rest. Accord id.\n {¶26} Even so, notwithstanding Bender’s contention that the weight of the\nevidence suggests that he acted in self-defense because the medical evidence\nsupports his version of events, the balance of the State’s evidence weighs against\nBender’s self-defense claim. In other words, the weight of the evidence reflects that\nBender was at least partially at fault in creating the situation giving rise to the affray.\nIndeed, the evidence reflects that Bender voluntarily entered into the fight with B.H.\nby inviting B.H. to fight. The record further reflects that Bender exceeded the force\nreasonably necessary for self-defense during the fight. See [CITATION] (concluding “that Martin voluntarily\nentered the encounter by proceeding to the police station parking lot and that he\nexceeded the force reasonably necessary for self-defense by using a deadly\nweapon”).\n {¶27} To begin with, Bender bore the initial burden of production under the\nfirst element of a self-defense claim to demonstrate that he was not at fault for\n Case No. 14-23-12\n\ncreating the violent situation. Accord [CITATION]. “[T]he first element of a self-defense claim provides\nthat the defendant must not be at fault in creating the situation that gave rise to the\naffray.” [CITATION]. See also [CITATION] (“‘Ohio courts have long recognized that a person cannot provoke [an] assault or\nvoluntarily enter an encounter and then claim a right of self-defense.’”), quoting\n[CITATION]. “This concept is broader than simply not being the immediate aggressor.”\n[CITATION]. “A person may not provoke an assault or voluntarily enter an\nencounter and then claim a right of self-defense.” Id. “Ohio courts have long\nrecognized that a defendant is at fault in creating the situation giving rise to the\naffray when the defendant chooses to confront the victim or knowingly go to a place\nwhere the victim will be, even when the defendant’s action was otherwise\ncompletely lawful.” Id. at ¶ 15.\n {¶28} In this case, the State presented the testimony of B.H. and Faith, who\ntestified that Bender was the initial aggressor and that he voluntarily entered into\nthe fight with B.H. by inviting B.H. to fight. Accord [CITATION] (specifying that “[b]oth of the\nstate’s witnesses contradicted appellant’s version, testifying Barnett and appellant\nwillingly met up in the middle of the street and [the appellant] began to throw\n Case No. 14-23-12\n\npunches”). See also [CITATION] at ¶ 15 (“Even if [the victim] grabbed appellant by the\nneck and pushed her against the house and, under appellant’s version, appellant did\nnot throw the first punch, the trial court did not err in finding that appellant was at\nfault in creating the situation.”).\n {¶29} At trial, B.H. testified that, after he asked Bender and Mentzer to leave,\nBender responded by asking him if he “wanted to fight him.” (Feb. 6, 2023 Tr.,\nVol. II, at 40). B.H. further testified that, after he agreed to fight Bender, Bender\ntraversed 15-to-20 feet to reach him, then “swung past” Faith (who was trying to\nintercede) and struck B.H. first. (Id. at 48). Faith likewise testified that, after B.H.\nasked Bender and Mentzer to leave, Bender “asked [B.H.] if he wanted to fight.”\n(Id. at 127). According to Faith, Bender “punched [B.H.] in the face,” then B.H.\n“punched him back.” (Id. at 130).\n {¶30} Moreover, even though Bender denied that he threw the first punch,\nBender’s own testimony suggests that he was at least partially at fault for creating\nthe situation giving rise to the affray. Accord [CITATION] at ¶ 85; [CITATION]\n11th Dist. Trumbull Nos. 2002-T-0115 and 2002-T-0116, 2003-Ohio-6762, ¶ 30-31\n(concluding that the defendant could not claim self-defense because “his testimony\ndemonstrated that he was at least partially at fault for creating the situation giving\nrise to the affray”). That is, Bender testified that he voluntarily entered the\nencounter with B.H. See [CITATION], 2d Dist. Greene No. 2019-CA-19,\n2020-Ohio-3681, ¶ 40.\n Case No. 14-23-12\n\n {¶31} Nevertheless, the weight of the evidence presented at trial reflects that\nBender did not have a bona fide belief that he was imminent danger of death or great\nbodily harm and that this only means of escape from such danger was the use of\nforce a required by the second element of a self-defense claim. Under the second\nelement of self-defense, “[t]he person’s belief must be objectively reasonable under\nthe circumstances and he must subjectively believe he needed to resort to force to\ndefend himself.” [CITATION], ¶\n54. Specifically, “‘[t]he objective part of the test requires consideration of “whether,\nconsidering all of the defendant’s particular characteristics, knowledge, or lack of\nknowledge, circumstances, history, and conditions at the time of the attack,” a\nreasonable person would believe that danger was imminent.’” Id., quoting [CITATION], ¶ 30, quoting [CITATION], ¶ 23.\n“The subjective part requires consideration of whether the defendant himself\nactually believed that he was in imminent danger.” Id.\n {¶32} Importantly, under the second element of a self-defense claim “a\ndefendant must show that ‘that the degree of force used was “warranted” under the\ncircumstances and “proportionate” to the perceived threat.’” Id. at ¶ 55, quoting\n[CITATION], ¶ 31. “‘If * * * the amount of force used is so disproportionate that\nit shows an “unreasonable purpose to injure,” the defense of self-defense is\nunavailable.’” Id., quoting [CITATION], 2011-\n Case No. 14-23-12\n\nOhio-87, ¶ 27, quoting [CITATION].\n {¶33} In this case, the weight of the evidence presented at trial demonstrates\nthat Bender’s use of deadly force was not “reasonably necessary and proportionate\nto the apparent danger.” [CITATION]. Critically, Bender “brought a knife to a fist fight and seriously\ninjured” B.H. [CITATION]. Specifically, the evidence reflects that Bender and B.H. “met with the intention\nof engaging in a fist fight.” [CITATION] (resolving that “it was\nwithin the province of the jury to credit the testimony of the state’s witnesses that\nBarnett and appellant met with the intention of engaging in a fist fight”). Indeed,\nthere was no evidence presented that B.H. wielded a weapon during the altercation.\n {¶34} Certainly, under the facts presented, it was within the province of the\njury to credit the testimonies offered by the State’s witnesses that Bender did not\nhave “reasonable grounds for believing there was an imminent threat of death or\nserious bodily harm.” [CITATION]. Consequently, the evidence presented reflects\nthat Bender “used deadly force when he was not faced with deadly force” and that\n“[t]he degree of force used by [Bender] was neither warranted under the\ncircumstances nor proportionate to the perceived threat.” [CITATION].\n Case No. 14-23-12\n\n {¶35} Therefore, based on our review of the record, we conclude that the\ntrier of fact did not lose its way by concluding that Bender did not act in self-defense.\n“The jury heard all of the testimony, considered the evidence, and found the state’s\nwitnesses credible, and we will not disturb the jury’s verdict on appeal.” [CITATION]\nImportantly, “[t]he jury did not lose its way simply because it believed the\nprosecution testimony and disbelieved appellant’s account.” [CITATION] Accordingly,\nweighing the evidence and all reasonable inferences, and considering the credibility\nof witnesses, we conclude the jury did not clearly lose its way and create such a\nmanifest miscarriage of justice that Bender’s felonious-assault conviction must be\nreversed and a new trial ordered. Thus, Bender’s felonious-assault conviction under\nCount One is not against the manifest weight of the evidence.\n {¶36} Bender’s first and sixth assignments of error are overruled.\n Second Assignment of Error\n The Trial Court Erred When It Failed To Grant A Mistrial First\n After The Jury Was Tainted By Inaccurate Statements Made By\n The Prosecutor Regarding Appellant’s Attempt To Invoke The\n Fifth Amendment When He Was On The Stand And Second\n When The Prosecutor Improperly Commented On Appellant’s\n Pre-Arrest Silence.\n {¶37} In his second assignment of error, Bender argues that the trial court\nerred by failing to declare a mistrial based on prosecutorial misconduct.\nSpecifically, Bender argues that the prosecutor improperly “commented on * * *\nMr. Bender invoking his Fifth Amendment right not to incriminate himself, then\n\n[SEGMENT 20]\n Case No. 14-23-12\n\nminutes later commenting on Mr. Bender’s pre-arrest silence.” (Appellant’s Brief\nat 12).\n Standard of Review\n {¶38} “‘A mistrial should not be ordered in a cause simply because some\nerror has intervened. The error must prejudicially affect the merits of the case and\nthe substantial rights of one or both of the parties.’” [CITATION], ¶ 18, quoting\n[CITATION]. “Notably, mistrials are appropriate\nonly when the ends of justice so require and a fair trial is no longer possible.” [CITATION], ¶ 61.\n {¶39} “Because it rests within the sound discretion of the court, we review a\ntrial court’s grant or denial of a motion for a mistrial for an abuse of discretion.”\n[CITATION], ¶ 44. An\nabuse of discretion implies that the trial court acted unreasonably, arbitrarily, or\nunconscionably. [CITATION].\n Analysis\n {¶40} In this case, Bender moved for a mistrial based on alleged improper\nstatements made by the prosecutor at trial. “When a defendant moves for a mistrial\nbased on prosecutorial misconduct, the trial court must determine whether ‘the\nprosecutor’s actions were improper, and, if so, whether the defendant’s substantial\nrights were actually prejudiced.’” [CITATION],\n Case No. 14-23-12\n2023-Ohio-2863, ¶ 24, quoting [CITATION]. Thus, “‘[w]hen the grounds for a mistrial are based on\nprosecutorial misconduct, the defendant must show that the alleged misconduct\ndeprived him of a fair trial.’” [CITATION], ¶ 40, quoting [CITATION], 1998 WL 156865, *3 (Mar. 20, 1998). “‘The defendant must show that, but\nfor the prosecutor’s misconduct, the trier of fact would not have convicted him.’”\n[CITATION] at ¶ 24, quoting [CITATION] at ¶ 33. “‘In making this determination, an appellate\ncourt should consider several factors: (1) the nature of the remarks, (2) whether an\nobjection was made by counsel, (3) whether corrective instructions were given by\nthe court, and (4) the strength of the evidence against the defendant.’” [CITATION], ¶ 46, quoting [CITATION].\n {¶41} Bender takes issue with the prosecutor’s statements regarding the\ninvocation of his Fifth Amendment right against self-incrimination and his pre-\narrest, pre-Miranda silence. “The Fifth Amendment to the Constitution of the\nUnited States provides that no person ‘shall be compelled in any criminal case to be\na witness against himself.’” [CITATION], ¶ 8, quoting the Fifth Amendment to the U.S. Constitution. “This\nAmendment is made applicable to the states through the due process clause of the\nFourteenth Amendment.” Id.\n Case No. 14-23-12\n\n {¶42} “‘The right to remain silent is conferred by the United States and the\nOhio Constitutions.”’ [CITATION] at ¶ 50, quoting [CITATION]. “‘The privilege against self-\nincrimination “is fulfilled only when the person is guaranteed the right ‘to remain\nsilent unless he chooses to speak in the unfettered exercise of his own will.’”’” Id.,\nquoting [CITATION] at ¶ 78, quoting [CITATION], quoting [CITATION], quoting [CITATION]. “This\nrule enforces one of the underlying policies of the Fifth Amendment, which is to\navoid having the jury assume that a defendant’s silence equates with guilt.” [CITATION]\nat ¶ 10.\n {¶43} Here, Bender contends that the prosecutor improperly asserted that\nBender “was not entitled to assert [his Fifth Amendment] privilege, in front of the\njury, stating ‘[Bender] waived [his] Fifth Amendment right’ * * * .” (Appellant’s\nBrief at 12-13, quoting Feb. 7, 2023 Tr., Vol. II, at 194). The State disputes\nBender’s argument and asserts that the prosecutor’s statements were not improper\nbecause Bender’s refusal to answer was not justified.\n {¶44} “‘There is no absolute right to invoke the Fifth Amendment.’” [CITATION], quoting [CITATION]. “The protections against self-incrimination ‘must be confined to instances where\nthe witness has reasonable cause to apprehend danger from a direct answer.’” [CITATION]\n Case No. 14-23-12\n\nv. Arnold, [CITATION], quoting Hoffman v. United States, [CITATION]. Consequently, “‘when a witness asserts a privilege against self-incrimination, a court may not rely upon the witness’s claim alone, but has a duty to determine whether the witness’s refusal to answer is justified.’” State v. Barton, [CITATION], quoting State v. Spangler, [CITATION].\n {¶45} Based on our review of the record, we conclude that Bender’s refusal\nto answer was not justified. Specifically, at trial, Bender testified on direct\nexamination regarding his witness’s—Dean Smith—testimony that Bender\n“coached” his testimony:\n [Bender]: My side of the things * * * is that, when we come to\n consult with * * * our lawyer * * * that we all talk\n separately and we generally had an idea of what\n happened that night. I’ve made statements in the past\n that I am claiming self-defense but I’ve never persuaded\n anybody or told anybody or coached anybody on what\n to say here today.\n [Trial Counsel]: So [Smith] did that on his own?\n [Bender]: Correct.\n [Trial Counsel]: Part of an effort to help you?\n [Bender]: I would assume so.\n [Trial Counsel]: Misguided effort, would you say?\n [Bender]: Most definitely.\n Case No. 14-23-12\n\n(Feb. 7, 2023 Tr., Vol. II, at 179-180). On cross-examination, Bender invoked his\nFifth Amendment privilege against self-incrimination:\n [The Prosecutor]: If I understand your testimony correctly, your friend just\n came in here and lied. Is that right?\n [Bender]: It would appear so, yes.\n [The Prosecutor]: He had lied when he said you told him what to say.\n Right?\n [Bender]: I plead the fifth on that question.\n(Id. at 193-194). Following consultation with his trial counsel, Bender answered\nthe prosecutor’s question:\n [The Prosecutor]: And so, you told him what to say?\n [Bender]: I did not.\n [The Prosecutor]: You did not, so he lied about that?\n [Bender]: Correct.\n [The Prosecutor]: [W]ell, why did you plead the fifth then?\n [Bender]: I was confused on the question and did not know how\n to answer.\n(Id. at 194-195).\n {¶46} Based on our review of Bender’s testimony, we conclude that Bender\ndid not present a basis to invoke his Fifth Amendment privilege against self-\nincrimination. See [CITATION] at ¶ 24. “‘[W]hen a defendant chooses\nto testify in a criminal case, the Fifth Amendment does not allow him to refuse to\n Case No. 14-23-12\n\nanswer related questions on cross-examination.’” [CITATION]. Significantly, “‘[a] defendant “has no right to set forth to the jury all\nthe facts which tend in his favor without laying himself open to a cross-examination\nupon those facts.”’” [CITATION]. Therefore, because Bender’s refusal was\nnot justified, the prosecutor’s cross-examination of Bender was not improper.\n {¶47} Bender further argues that the prosecutor improperly cross-examined\nhim regarding his pre-arrest, pre-Miranda silence. Specifically, Bender contends\nthat the prosecutor improperly “commented on [his] pre-arrest silence to attack the\nself-defense [claim] by inferring that if he had nothing to hide, why didn’t he go to\nthe police, or check in on his friend on a regular basis.” (Appellant’s Brief at 13).\nHere, Bender suggests that he was deprived of a fair trial because the prosecutor’s\ncross-examination of him regarding his pre-arrest, pre-Miranda silence constituted\nsubstantive evidence of his guilt. The State refutes Bender’s argument and contends\nthat the prosecutor’s cross-examination of Bender had “probative value for\nimpeachment, since Bender’s claim of self-defense and claiming to be the victim of\nan attack would usually result in a report of his lawful use of force to the police\nwhen it happened.” (Appellee’s Brief at 19).\n {¶48} Generally, the “[u]se of a defendant’s pre-arrest silence as substantive\nevidence of guilt violates the Fifth Amendment privilege against self-\n Case No. 14-23-12\nincrimination.” [CITATION].\nHowever, “[a] defendant’s pre-arrest, pre-Miranda silence may be introduced for\n\n[SEGMENT 21]\nimpeachment purposes.” [CITATION]. Specifically, when “the\ndefendant has ‘cast aside his cloak of silence,’” the “use of pre-arrest silence as\nimpeachment evidence is permitted because it furthers the truth-seeking process.”\n[CITATION], quoting [CITATION].\n(1980). “Otherwise, a criminal defendant would be provided an opportunity to\nperjure himself at trial, and the state would be powerless to correct the record.” Id.\nLikewise, “the use of a defendant’s pre-arrest, pre-Miranda silence as substantive\nevidence of guilt does not violate the Fifth Amendment privilege against self-\nincrimination if the defendant fails to expressly invoke the privilege.” [CITATION].\n {¶49} Importantly, “the Constitution does not prohibit references to a\ndefendant’s invocation of the right to remain silent as a ‘fair response’ to a\ndefendant’s claims.” [CITATION], quoting [CITATION].\n864 (1988). See also [CITATION] (“‘The United States Supreme Court has held that the Fifth Amendment\ndoes not prohibit references to a defendant’s invocation of the right against self-\nincrimination when the references are made in “fair response” to the defense’s\n\n====== End of Part ====== Case No. 14-23-12\n\nclaims.’”), quoting [CITATION]. “A fair response is warranted in such\ncircumstances because ‘“the protective shield of the Fifth amendment”’ should not\nbecome ‘“a sword that cuts back on the area of legitimate comment by the\nprosecutor on the weaknesses in the defense case.”’” [CITATION].\n {¶50} The prosecutor’s cross-examination of Bender regarding his pre-\narrest, pre-Miranda silence was not improper. Critically, the State’s cross-\nexamination of Bender amounts to impeachment evidence, which did not violate\nBender’s right to remain silent. Accord [CITATION]. That is, the prosecutor’s\ncross-examination of Bender regarding his pre-arrest, pre-Miranda silence was a\nfair response to Bender’s self-defense claim. See [CITATION].\nSee also [CITATION].\n {¶51} Therefore, since the prosecutor did not improperly address Bender’s\ninvocation of his Fifth Amendment privilege against self-incrimination or his pre-\narrest, pre-Miranda silence, Bender’s substantial rights were not prejudiced and he\n\n====== End of Part of a Court Ruling ====== Case No. 14-23-12\n\nwas not deprived of a fair trial. For these reasons, we conclude that the trial court\ndid not abuse its discretion by denying Bender’s motion for a mistrial.\n {¶52} Bender’s second assignment of error is overruled.\n Third Assignment of Error\n The Trial Court Erred When It Failed To Give A Jury Instruction\n On Aggravated Assault.\n Fourth Assignment of Error\n The Trial Court Erred When It Gave An Improper Instruction\n On Self-Defense.\n Fifth Assignment of Error\n The Trial Court Erred When It Failed To Send Verdict Forms To\n The Jury As To The Issue Of Self-Defense.\n {¶53} In his third, fourth, and fifth assignments of error, Bender challenges\nthe trial court’s jury instructions and verdict forms. In particular, in his third\nassignment of error, Bender argues that the trial court erred by failing to instruct the\njury on the inferior-degree offense of aggravated assault. Bender specifically argues\nin his fourth assignment of error that the trial court erroneously instructed the jury\nregarding self-defense. Finally, in his fifth assignment of error, Bender argues that\nthe trial court erred by providing the jury with improper verdict forms.\n Standard of Review\n {¶54} “A trial court’s decision to give a jury instruction is within its\ndiscretion, and we will not reverse such a decision absent an abuse of that\n Case No. 14-23-12\n\ndiscretion.” [CITATION]\nAgain, an abuse of discretion implies that the trial court acted unreasonably,\narbitrarily, or unconscionably. [CITATION]\n Analysis\n {¶55} “While a trial court has broad discretion to determine how it will\ninstruct a jury, the court has a duty to ‘fully and completely give the jury all\ninstructions which are relevant and necessary for the jury to weigh the evidence and\ndischarge its duty as the fact finder.’” [CITATION], quoting [CITATION] “Requested jury instructions should ordinarily be given if they are\ncorrect statements of law, if they are applicable to the facts in the case, and if\nreasonable minds might reach the conclusion sought by the requested instruction.”\n[CITATION]\n Aggravated Assault Instruction\n {¶56} In his third assignment of error, Bender contends that the trial court\nerred by failing to instruct the jury on the inferior-degree offense of aggravated\nassault. “[A] trial court may refuse to issue a requested jury instruction if ‘“the\nevidence adduced at trial is legally insufficient” to support it.’” [CITATION], quoting [CITATION] quoting [CITATION]. See also [CITATION]\n\n====== End of Example ====== Case No. 14-23-12\n\ndecision whether to give a requested instruction, the appropriate inquiry is whether\nsufficient evidence has been presented to support the instruction.”). “[T]he trial\njudge is in the best position to gauge the evidence before the jury and is provided\nthe discretion to determine whether the evidence adduced at trial was sufficient to\nrequire an instruction.” [CITATION]\n {¶57} “Aggravated assault is an offense of an inferior degree of felonious\nassault.” [CITATION] “An instruction on aggravated assault is appropriate when the evidence supports a\nconviction for felonious assault, but the assault resulted from serious provocation\nby the victim.” [CITATION]\n¶ 8. That is, “[i]n a trial for felonious assault, where the defendant presents sufficient\nevidence of serious provocation, such that a jury could both reasonably acquit [the]\ndefendant of felonious assault and convict [the] defendant of aggravated assault, an\ninstruction on aggravated assault, as an inferior degree of felonious assault, must be\ngiven.” (Emphasis sic.) [CITATION]\n {¶58} “‘Provocation, to be serious, must be reasonably sufficient to bring on\nextreme stress and the provocation must be reasonably sufficient to incite or arouse\nthe defendant into using deadly force.’” Id. at ¶ 26, quoting [CITATION] “‘In determining whether\nthe provocation was reasonably sufficient to incite the defendant into using deadly\n Case No. 14-23-12\n\nforce, the court must consider the emotional and mental state of the defendant and\nthe conditions and circumstances that surrounded him at the time.’” Id., quoting\n[CITATION] at paragraph five of the syllabus.\n {¶59} “Ohio courts considering what constitutes sufficient ‘serious\nprovocation’ have found that past incidents or verbal threats are not sufficient;\nwords are not sufficient; and a victim’s simple pushing or punching the defendant\nis not sufficient.” [CITATION] No. L-22-1166, 2023-Ohio-\n3543, ¶ 53. Similarly, “[r]egarding the emotional state necessary to constitute\nsudden passion or a sudden fit of rage, Ohio courts have found that confusion or\nfear alone is not sufficient.” Id. at ¶ 54. Indeed, “where a defendant testifies that\nhe was merely afraid and no evidence exists that he actually acted under a sudden\nfit of passion or rage, a court does not abuse its discretion by refusing to provide an\ninstruction on aggravated assault.” [CITATION] at ¶ 36.\n {¶60} On appeal, Bender argues that he presented sufficient evidence that he\nacted under serious provocation. In response, the State expostulates that\n“[a]ggravated assault is generally incompatible with a theory of self-defense\nbecause self-defense requires proof of fear while aggravated assault requires a\nshowing of a sudden passion or rage.” (Appellee’s Brief at 20). In the alternative,\nthe State asserts that Bender did not present any evidence that he “acted ‘in a sudden\nfit of rage.’” (Id. at 21). Instead, the State proclaims that Bender “unequivocally\ntestified that he stabbed [B.H.] out of a fear for his safety.” (Id.).\n Case No. 14-23-12\n\n {¶61} “This Court has stated that a defendant who asserts self-defense “‘is\nnot entitled under Ohio law to instructions on self-defense and on lesser included\noffenses [or inferior degree offenses], but must choose between the two.”’” [CITATION], quoting [CITATION], quoting [CITATION]. Our sister courts of\nappeal have agreed that “[i]n most cases, an aggravated assault instruction is\nincompatible with an instruction on self-defense, so that both cannot be given\ntogether.” [CITATION]. See also [CITATION] (“Generally, an instruction on aggravated assault is incompatible with an instruction\non self-defense, such that both cannot be given together, because the legal theories\nunderpinning each offense are incompatible (aggravated assault—rage; self-\ndefense—fear).”).\n {¶62} However, some courts have diverged and resolved that “‘[w]here there\nis sufficient evidence on the issues of self-defense and aggravated assault, the court\n\n[SEGMENT 22]\nmust charge the jury on both, when so requested.’” [CITATION], quoting [CITATION]. See also [CITATION]. “For instance, an aggravated assault instruction could be given in a self-\n Case No. 14-23-12\n\ndefense case where a defendant exceeded the amount of force necessary for his\ndefense, out of passion or rage.” [CITATION] at ¶ 26.\n {¶63} Nevertheless, we need not resolve such disaccord in this case because\nBender did not present sufficient evidence that he acted under “sudden passion or a\nfit of rage” as contemplated by the aggravated-assault statute. Decisively, the theory\nof Bender’s case was that he stabbed B.H. nine times out of fear. Indeed, Bender\ntestified that he found himself on the ground with B.H. “on top of [him] attacking\n[him] at which point [B.H.] took the mid section of his forearm and placed it on\n[Bender’s] throat and [he] could no longer breathe.” (Feb. 7, 2023 Tr., Vol. II, at\n166). Bender testified that “[a]t that point in time, [he] didn’t know if he was going\nto stop. [He] could not get him off of [him]. [He] could not get his body weight off\nof [him], so [he] reacted accordingly until [he] felt the pressure come off [his] neck.”\n(Id. at 172). That is, he testified that he “pulled out [his] knife and [he] stabbed him\nin the back, in the lower buttocks and the thigh until he stopped and [Bender]\ndeemed him no longer a threat.” (Id.).\n {¶64} Critically, Bender testified that “[i]t was at that time that [he] could no\nlonger breathe that [he] feared that [his] life was in danger and [he] reacted\naccordingly.” (Emphasis added.) (Id. at 166-167). Specifically, Bender testified\nthat he stabbed him “[t]o get him to stop” because he “felt that [his] life was in\ndanger” and he “wanted to neutralize the threat.” (Id. at 173). In sum, Bender\ntestified that “[t]he moment that [he] felt the pressure come off [his] neck and [he]\n Case No. 14-23-12\n\ncould once again breathe is the * * * moment that [he] stopped stabbing him * * *\n.” (Id. at 167).\n {¶65} Based on the foregoing, we conclude that Bender presented evidence\nthat he acted out of fear and not out of sudden passion or a fit of rage. See [CITATION]. That is, Bender\ndid not present reasonably sufficient evidence that the circumstances incited him to\nuse deadly force to repel the attack. As a result, Bender did not present sufficient\nevidence of serious provocation. Compare [CITATION].\nConsequently, the trial court did not abuse its discretion by failing to instruct the\njury on the inferior-degree offense of aggravated assault.\n Self-Defense Instruction\n {¶66} In his fourth assignment of error, Bender argues that the trial court\nerred by instructing the jury that he had a duty to retreat in contravention of Ohio’s\n“stand your ground” law under R.C. 2901.09. “The amended ‘stand your ground’\nlaw in Ohio now provides that ‘a person has no duty to retreat before using self-\ndefense * * * if that person is in a place in which the person lawfully has a right to\nbe.’” [CITATION], quoting R.C. 2901.09(B), and citing [CITATION]. The statute further provides that “[a] trier of fact\nshall not consider the possibility of retreat as a factor in determining whether or not\na person who used force in self-defense * * * believed that the force was necessary\n\n====== End of Court Ruling ====== Case No. 14-23-12\n\nto prevent injury, loss, or risk to life or safety.” R.C. 2901.09(C). “‘Simply put, the\nnew “stand your ground’ law removes, in most cases, the duty to retreat before using\nself-defense.’” Warnock at ¶ 46, quoting [CITATION]. But see [CITATION] (cautioning that “R.C. 2901.09(C) is not an\nabsolute prohibition on introducing evidence involving the possibility of retreat.\nRather, the statute only prohibits fact finders from considering evidence involving\nthe possibility of retreat to determine whether the defendant’s belief that force was\nnecessary was reasonable. Fact finders may, however, consider retreat evidence to\ndetermine who was at fault in creating the situation leading to the affray”).\n {¶67} In this case, the trial court instructed the jury, in relevant part, that\n [i]n determining whether the Defendant, in using force in self-defense\n reasonably believed that the force was necessary to prevent injury,\n loss, or risk to life or safety, you may not consider the possibility of\n retreat by the Defendant. The Defendant had no duty to retreat before\n using force in self-defense if the Defendant was in a place in which\n he lawfully had a right to be.\n(Feb. 8, 2023 Tr. at 70).\n {¶68} “Whether the jury instructions correctly state the law is a question that\nis reviewed de novo.” [CITATION]. “De novo review is independent, without deference to the lower court’s decision.”\n[CITATION].\n Case No. 14-23-12\n\n {¶69} Based on our review of the trial court’s jury instruction, we conclude\nthat the trial court’s jury instruction is a correct statement of law. Compare [CITATION]\nat ¶ 48 (concluding that the trial court’s self-defense jury instruction conformed with\nOhio’s “stand your ground” law). Indeed, the trial court’s jury instruction plainly\nstates the appropriate duty-to-retreat standard as codified in R.C. 2901.09.\nConsequently, the trial court’s self-defense jury instruction is not unreasonable,\narbitrary, or unconscionable.\n Verdict Forms\n {¶70} In his fifth assignment of error, Bender argues that the trial court erred\nby failing to give the jury a separate verdict form regarding his self-defense claim.\nSpecifically, Bender asserts that the trial court should have provided the jury with\nverdict forms requiring the jury to assess whether the State met its burden of proving\nthat he did not act in self-defense.\n {¶71} Importantly, Bender did not object to the verdict forms at trial.\nConsequently, Bender has forfeited all but plain error on appeal. Accord [CITATION], ¶ 11. Under Crim.R. 52(B), “plain\nerrors or defects affecting substantial rights may be noticed although they were not\nbrought to the attention of the court.” “We recognize plain error with the utmost\ncaution, under exceptional circumstances, and only to prevent a manifest\nmiscarriage of justice.” [CITATION], ¶ 69. “‘For plain error to apply, the trial court must have deviated from a\n Case No. 14-23-12\n\nlegal rule, the error must have been an obvious defect in the proceeding, and the\nerror must have affected a substantial right.’” Id., quoting [CITATION]. “‘Under the plain error standard, the\nappellant must demonstrate that the outcome of his trial would clearly have been\ndifferent but for the trial court’s errors.’” Id., quoting [CITATION] at ¶ 34.\n {¶72} When reviewing a trial court’s jury instructions under the plain-error\nstandard, “‘an appellate court must review the [jury] instructions as a whole and the\nentire record to determine whether a manifest miscarriage of justice has occurred as\na result of the error in the instructions.’” [CITATION], quoting [CITATION], ¶ 38, quoting [CITATION], ¶ 137. “An improper or erroneous jury instruction does\nnot constitute plain error unless, but for the error, the outcome of the trial would\nclearly have been different.” Id. Consequently, Bender is required to “demonstrate\nthat his convictions clearly would have been different had the trial court instructed\nthe jury on self-defense either before or after the elements of each offense and on\nthe requirement of unanimity.” Id.\n {¶73} On appeal, Bender contends that the trial court erred by “not send[ing]\nverdict forms back on the issue of self-defense, as the proper order is for the jury to\ndetermine if the State met its burden beyond a reasonable doubt self-defense [sic]\nand that must be a unanimous decision.” (Appellant’s Brief at 17). That is, Bender\nargues that\n Case No. 14-23-12\n\n [t]he only way for [him] to know that each member of the jury\n thoughtfully considered the issue of self-defense and whether the\n State met its burden of beyond a reasonable doubt is for each member\n of the jury to sign a verdict form that either the State did or did not\n prove beyond a reasonable doubt that Mr. Bender did not act in self-\n defense.\n(Id.).\n {¶74} We disagree with Bender’s proposition and join our sister appellate\ndistricts in the conclusion that “[t]here is no requirement for a separate finding in\n\n[SEGMENT 23]\ntrials with claims of self-defense.” [CITATION]. Accord [CITATION]. See also [CITATION]. Therefore, the absence of a separate verdict form regarding\nBender’s self-defense claim was not error, let alone plain error. Accord Smith at ¶\n48.\n {¶75} For these reasons, Bender’s third, fourth, and fifth assignments of error\nare overruled.\n Seventh Assignment of Error\n The Trial Court Erred When It Sentenced Appellant To An\n Indefinite Sentence: Reagan Tokes.\n {¶76} In his seventh assignment of error, Bender argues that his sentence,\nimposed under Ohio’s current sentencing scheme (commonly known as the “Reagan\nTokes Law”), is unconstitutional.\n Case No. 14-23-12\n\n Standard of Review\n {¶77} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence\n“only if it determines by clear and convincing evidence that the record does not\nsupport the trial court’s findings under relevant statutes or that the sentence is\notherwise contrary to law.” [CITATION], ¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the\ntrier of facts a firm belief or conviction as to the facts sought to be established.’” Id.\nat ¶ 22, quoting [CITATION], paragraph three of the\nsyllabus.\n Analysis\n {¶78} In this case, Bender challenges the constitutionality of the Reagan\nTokes Law—namely, Bender alleges that the Reagan Tokes Law violates his\nconstitutional right to a trial by jury in addition to violating the separation-of-powers\ndoctrine and due-process clause of the Ohio and United States Constitutions.\nImperatively, not only has this court rejected similar facial- and as-applied-\nconstitutional challenges to the Reagan Tokes Law, but the Supreme Court of Ohio\nrecently endorsed the constitutionality of the Reagan Tokes Law. Accord [CITATION], ¶ 41. We decline to diverge from such\nformidable precedent. Accordingly, Bender’s sentence is not contrary to law.\n {¶79} Bender’s seventh assignment of error is overruled.\n Case No. 14-23-12\n\n {¶80} Having found no error prejudicial to the appellant herein in the\nparticulars assigned and argued, we affirm the judgment of the trial court.\n Judgment Affirmed\nWILLAMOWSKI, P.J. and MILLER, J., concur.\n/hls\n\n====== End of Part of a Court Ruling ====== \n[CITATION]\n\n\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n STATE OF OHIO, : APPEAL NO. C-230457\n TRIAL NO. B-2203537-A\n Plaintiff-Appellee, :\n :\n VS.\n :\n ANASIA SHINHOLSTER, :\n Defendant-Appellant. :\n\n\n STATE OF OHIO, : APPEAL NO. C-230436\n TRIAL NO. B-2203537-B\n Plaintiff-Appellee, :\n :\n vs.\n :\n O P I N I O N.\n SAKARIA WILLIAMS, :\n Defendant-Appellant. :\n\nCriminal Appeals From: Hamilton County Court of Common Pleas\nJudgments Appealed From Are: Affirmed in C-230457; Affirmed in Part, Sentences\nVacated, and Cause Remanded in C-230436\nDate of Judgment Entry on Appeal: April 26, 2024 OHIO FIRST DISTRICT COURT OF APPEALS\n\nMelissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,\nAssistant Prosecuting Attorney, for Plaintiff-Appellee,\nLaw Office of Arica L. Underwood LLC and Arica L. Underwood, for Defendant-\nAppellant Anasia Shinholster,\nTimothy J. McKenna, for Defendant-Appellant Sakaria Williams.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nBERGERON, Judge.\n {¶1} A takeout order placed by restaurant regulars that took too long sparked\na request for a refund that led to a physical altercation, culminating in three shots fired\nand a gunshot wound. Following the incident, codefendants-appellants Anasia\nShinholster and Sakaria Williams (together, “Defendants”) were tried jointly, and both\nwomen were convicted of two counts of felonious assault and sentenced to five-to-six\nyears in prison.\n {¶2} We sua sponte consolidate their two separate appeals into a single\nopinion and judgment because Defendants raise overlapping self-defense arguments,\nchallenging their convictions for felonious assault on manifest weight grounds. Ms.\nShinholster separately raises concerns about a clerical error in the judicial entry\ndenying her Crim.R. 29 motion for a judgment of acquittal. And Ms. Williams argues\nthat the trial court failed to merge allied offenses of similar import and that the state\nfailed to establish the “aiding and abetting” element of felonious assault. After\nreviewing the record and the trial court’s decision, we vacate Ms. Williams’s sentences\nand remand her case (C-230436) for resentencing. In all other respects, we affirm\nboth judgments of the trial court.\n I.\n {¶3} In July 2022, Ms. Shinholster arrived at a restaurant that she regularly\nfrequented to pick up food that she and Ms. Williams had ordered. Because the order\nwas not yet ready, she had to wait for the food. Sometimes, when that happened, the\nrestaurant would offer a free soft drink for their troubles of having to wait longer than\nexpected. Accordingly, she requested a drink, but the restaurant was out of her\npreferred beverage and one of the restaurant’s owners, Jason Williams, declined her\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nback-up request because the alternative drink she wanted was more expensive. Ms.\nShinholster was on the phone with Ms. Williams throughout this encounter, with her\nannoyance growing by the minute.\n {¶4} As Ms. Shinholster left with the order, she announced to Ms. Williams\nthat she would no longer support the restaurant. Jason overheard this edict.[CITATION]\nTestimony and evidence presented at trial established that Ms. Williams and Jason\nlater exchanged phone calls, adding fuel to the simmering feud. The content of these\nphone calls, however, is disputed. According to Jason, although the calls grew heated\nat moments, no one said anything outrageous, and he eventually apologized. But Ms.\nShinholster testified that during the last call (the only call to which she was a party),\nJason was irate and disrespectful, hurling profanities at them.\n {¶5} Following the phone calls, Defendants determined that they wanted a\nrefund for their order. Together, they decided that Ms. Williams would enter the\nrestaurant because the owners would be less familiar with her. Ms. Shinholster\nremained in the car with Ms. Williams on speaker phone, so she could hear what\ntranspired inside the restaurant. Both women carried a gun, consistent with their\nnormal practice, although Ms. Shinholster testified that she did not know whether Ms.\nWilliams was armed that night.\n {¶6} As Jason and his co-owner and wife, Peta Duffus, began to prepare to\nclose their restaurant for the evening, Ms. Williams entered the restaurant, demanding\na refund for her order. She claimed that she did not know what was in the order\nbecause her mother had placed it. There is conflicting testimony regarding where\nJason was when the encounter began. Ms. Shinholster testified that she first heard\n1 Because Sakaria Williams and Jason Williams share a last name, we refer to Jason Williams as\n“Jason” throughout the opinion to avoid any confusion.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nMs. Williams having a cordial conversation with Jason. But Jason testified that he was\nin the back cleaning when Ms. Williams entered the restaurant and did not come to\nthe front of the restaurant until he heard loud talking and the mention of a gun. And\nMs. Duffus similarly testified that she was the first one to interact with Ms. Williams\nwhile Jason worked in the back.\n {¶7} Regardless, it is undisputed that some time at or near the beginning of\nthe encounter, Ms. Duffus began arguing with Ms. Williams, prompting Ms.\nShinholster to enter the restaurant and Jason to call 911 as he advanced towards the\nfront of the restaurant. According to Ms. Duffus, when Ms. Williams entered the\nrestaurant, she flashed her gun. As evidenced by video footage, Ms. Williams walked\nbehind the counter into the employees-only kitchen area. And Ms. Shinholster stood\nin the doorway to the employees-only area to prevent the door from closing. The\nowners did not invite Defendants into this area, and Ms. Duffus instructed them to\nleave the business multiple times during this portion of the encounter. Ms.\nShinholster testified that they refused to leave because they were waiting for the police\nto show up to enable them to procure their refund.\n {¶8} At some point during this time, Ms. Duffus picked up a knife, but she\nquickly put it down, and never came within an arm’s length of the women while\nholding the knife. Nor did anyone touch the knife again during the encounter.\n\n[SEGMENT 24]\nThroughout this portion of video evidence admitted at trial, Ms. Duffus indicates that\nthe women have a gun. And Ms. Shinholster informs the 911 operator that she had her\nconcealed carry permit.\n {¶9} Conflicting testimony exists as to how the physical altercation between\nMs. Williams and Ms. Duffus began. Ms. Duffus testified that she tried to grab the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nfood bag from Ms. Williams to see what was in it, and Ms. Williams punched her, spit\nin her face, and turned around, and in response, Ms. Duffus grabbed her. Jason\nexplained that he saw Ms. Duffus chase the women into the lobby and a physical\naltercation ensued. And Ms. Shinholster asserted that Ms. Duffus started pushing and\nshoving Ms. Williams out of the employees-only area with a dustpan, and Ms. Williams\nwent to leave, but then Ms. Duffus “attacked” her, punching her and pulling her hair.\nMs. Shinholster insisted that Ms. Williams did not spit at anyone or touch anyone until\nshe needed to defend herself. Once the physical altercation began, it is undisputed\nthat Ms. Duffus held Ms. Williams pinned on the ground, as the two women continued\nto tussle. Ms. Duffus testified that, at some point during this altercation, she removed\nMs. Williams’s gun from her bag and slid it under the bulletproof glass at the counter,\ninto the cash register area (presumably to ensure that no one would use it).\n {¶10} Ms. Shinholster intervened to assist Ms. Williams, prompting Jason to\nattempt to remove her from the restaurant. He and Ms. Shinholster engaged in a\nphysical altercation at the door of the restaurant as he sought to shove her out of the\nrestaurant, while she fought to remain inside (and later regain entry). During this\ntime, Ms. Duffus still had Ms. Williams pinned on the ground. Ms. Williams continued\nto call for help, eventually encouraging her companion to “shoot the bitch.”\n {¶11} Believing that he locked Ms. Shinholster out of the restaurant, Jason\nturned to address the encounter between the two women rolling around on the floor.\nHowever, Ms. Shinholster regained entry and fired three shots at him. In her\nrecounting of the story, she asserts that he reached into Ms. William’s purse and pulled\nout “what looked like to me resembled like a hammer like object” and moved towards\nher when she decided to fire three shots in self-defense.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n {¶12} After the shots were fired, Ms. Shinholster grabbed Ms. Williams, exited\nfrom the restaurant, called the police, and waited by their car for police to arrive. A\ndetective arrived and interviewed, and then arrested, both women. Upon their arrival\nat the Justice Center, officers denied them entry because of their injuries, so they first\nwent for treatment at a hospital before landing in jail. Ms. Shinholster testified that\nshe is recovering from a concussion that occurred during the melee, and that she also\nsuffered a scraped knee and bruised arms. And she testified that the photo evidence\nof Ms. Williams (which showed a large bump on her head) accurately portrayed how\nshe looked following the incident. Jason required surgery for his injury and suffers\nongoing pain from his gunshot wound.\n {¶13} Both Defendants were charged with two counts of felonious assault,\nfelonies of the second degree, in violation of R.C. 2903.11(A)(1) and (2), with firearm\nspecifications. Both women waived their rights to a jury trial. At trial, Ms. Duffus,\nJason, Detective Carl Blackwell, and Ms. Shinholster testified (notably, Ms. Williams\ndid not testify). The defense and prosecution also tendered exhibits, including 911\ncalls, cellphone footage, and various photographs. Ultimately, the trial court found\nDefendants each guilty of both counts and sentenced them to the mandatory minimum\nof two-to-three years on count 1, plus three years on the firearm specification, and\ncount 2 running concurrently to count 1, for five-to-six-year indeterminate sentences.\n II.\n {¶14} On appeal, Ms. Shinholster and Ms. Williams each raise three\nassignments of error, with overlapping self-defense arguments. We first address their\nself-defense arguments. We then proceed to analyze each defendant’s remaining\nassignments of error.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n A.\n {¶15} In Ms. Shinholster’s first and second assignments of error and Ms.\nWilliams’s third assignment of error, Defendants challenge their convictions for\nfelonious assault as against the manifest weight of the evidence, maintaining that the\nstate failed to prove beyond a reasonable doubt that they were not acting in self-\ndefense. Ms. Williams also raises a sufficiency challenge to the self-defense claim.\nBut, based on the recent change in the law regarding self-defense claims, the\nsufficiency of the evidence standard applies to the defendant’s burden of production,\nwhereas a manifest weight of the evidence standard applies to the state’s burden of\npersuasion. See [CITATION]. Thus, “[t]he Ohio Supreme Court has held that a self-defense claim is not\nan element of the offense that must be proven by the state and, therefore, it is not\nsubject to review for sufficiency of the evidence.” [CITATION], citing [CITATION]. Consequently, we\nonly evaluate Defendants’ convictions through a manifest weight lens.\n {¶16} When a defendant raises a self-defense claim, once evidence is\npresented that tends to support that their use of force was in self-defense or in defense\nof another, “ ‘ “the burden of persuasion requires the state to disprove at least one of\nthe elements of self-defense * * * beyond a reasonable doubt.” ’ ” (Emphasis added.)\n[CITATION]. “Unlike the burden\nof production, which concerns a party’s duty to introduce enough evidence on an issue,\nthe burden of persuasion represents a party’s duty to convince the factfinder to view\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nthe facts in a favorable manner to them.” (Emphasis sic.) [CITATION] at ¶ 15, citing\n[CITATION] at ¶ 17.\n {¶17} We will not reverse a conviction unless “the evidence weighs heavily\nagainst [it].” Id. And we will not “second-guess the factfinder’s adjudication of\nconflicting evidence” except under “the most exceptional circumstances.” Id. Thus,\nwhen reviewing a manifest weight challenge involving self-defense, we must\ndetermine if “the factfinder disregarded or overlooked compelling evidence that\nweighed against conviction.” [CITATION] at ¶ 8, citing [CITATION].\n {¶18} Defendants insist that the state failed to prove beyond a reasonable\ndoubt that they did not act in defense of themselves or of another. Self-defense and\ndefense of another are affirmative defenses that legally excuse otherwise unlawful\nconduct. See [CITATION] at ¶ 21 (“The plain language of R.C. 2901.05(A) reflects that self-defense is still an\naffirmative defense.”).\n {¶19} Here, the facts that both Defendants were injured during the\naltercation and that they claimed that the restaurant owners started the brawl tend to\nsupport the conclusion that they acted in self-defense. Therefore, the burden shifted\nto the state to disprove one or more of the elements of self-defense in the use of deadly\nforce: “(1) the defendant[s] [were] not at fault in creating the situation giving rise to\nthe affray; (2) the defendant[s] had a bona fide belief that [they were] in imminent\ndanger of death or great bodily harm and that [their] only means of escape from such\na danger was in the use of such force; [or] (3) the defendant[s] did not violate any duty\nto retreat or avoid the danger.” [CITATION], 1st Dist. Hamilton No. C-190507, 2020-Ohio-\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n4976, at ¶ 48, citing [CITATION].\nThe state must only disprove one element beyond a reasonable doubt to defeat the\nself-defense claim. See [CITATION], ¶ 9, citing [CITATION], at ¶ 10.\n {¶20} Under the first element of a self-defense claim, the state presented\nevidence establishing that Defendants were at fault in creating the situation giving rise\nto the affray. For the purposes of self-defense, “the first aggressor in an incident is ‘at\nfault.’ ” [CITATION], ¶ 30, quoting [CITATION], ¶ 9, citing [CITATION], ¶ 23.\nDefendants argue (and Ms. Shinholster testified) that they were not at fault in creating\nthe situation leading to the shooting because Jason attacked Ms. Shinholster, and Ms.\nDuffus attacked Ms. Williams. But Ms. Duffus testified that Ms. Williams spit on her\nand threw the first punch. Similarly, Jason testified that he did not get physically\ninvolved with Ms. Shinholster until she engaged in the altercation between the other\ntwo women. Ms. Williams also claims that she was not at fault in creating the situation\nbecause at one point she put up her hood and turned to leave before Ms. Duffus\nlaunched an attack at her. She did not testify at trial, so the only evidence supporting\n\n[SEGMENT 25]\nthis claim comes from the testimony of Ms. Shinholster indicating that they were going\nto leave at this point. But elsewhere during her testimony, Ms. Shinholster\nacknowledged that they refused to leave and were waiting for the police to show up.\n {¶21} Moreover, the state demonstrated under the second element that\nDefendants were not in imminent danger of death or great bodily harm at the time Ms.\nShinholster fired shots at Jason. Both Ms. Shinholster and Ms. Williams arrived for a\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nrefund with guns. At trial, Ms. Shinholster testified that she “fear[ed] for her life” and\nthat “[i]f [she] didn’t fire that either Ms. Williams and I would have died that night.”\nShe also maintained that she “knew Ms. Williams could not breathe because of the\nposition she was in.” Yet testimony and evidence presented at trial demonstrate that\nMs. Williams was loudly and continuously yelling for help throughout the encounter\n(not to mention exhorting her companion to shoot), demonstrating her ability to\nbreathe. And while Ms. Shinholster testified that Jason was coming at her when she\nfired her gun, he testified that he thought he locked her out and had turned back to\naddress the altercation between Ms. Duffus and Ms. Williams at the time the shots\nwere fired.\n {¶22} Furthermore, the state established that Defendants had a duty to\nretreat before using force in self-defense. Under the most recent amendments to R.C.\n2901.09(B), a person does not have a duty to retreat before using force in self-defense\nif that person is in a place where they lawfully have a right to be. [CITATION], at ¶ 17. While Ms. Shinholster and Ms. Williams were lawfully\nable to enter the restaurant, by the time of the shooting, they were trespassers (and\nthus, were not in a place where they lawfully had a right to be). Testimony, video\nevidence, and the 911 call recordings establish that Ms. Williams entered the\nemployees-only area of the restaurant without permission. And the restaurant owners\nrepeatedly instructed Defendants to leave the restaurant before the physical\naltercation began. During the recording of her 911 call, Ms. Shinholster responded to\nMs. Duffus’s instruction to leave: “No, we ain’t going nowhere.”\n {¶23} Self-defense claims are often rife with issues of credibility. And here,\nthe state and Defendants largely presented two different versions of the events leading\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nup to the shooting. But when there is conflicting evidence presented at trial, we will\nnot find that a conviction is against the manifest weight of the evidence where a trier\nof fact reasonably weighed the conflicting evidence. See, e.g., [CITATION]. On this record, we cannot\nconclude that the trial court clearly lost its way or created a manifest miscarriage of\njustice in determining that the state proved beyond a reasonable doubt that\nDefendants did not act in self-defense. Although some evidence weighs in favor of the\nself-defense claims, the weight of the evidence points in the other direction. Therefore,\nwe overrule Ms. Shinholster’s first and second assignments of error and Ms. Williams’s\nthird assignment of error.\n B.\n {¶24} Turning to Ms. Shinholster’s remaining assignment of error, she\nmaintains the trial court erred by denying her Crim.R. 29 motion for a judgment of\nacquittal as to “counts 1 and 2” when she was the named defendant in the third and\nfourth counts of the indictment. Specifically, in light of this error, she claims that this\ncourt should vacate her conviction.\n {¶25} Defendants were convicted of parallel counts of felonious assault:\ncounts 1 and 2 against Ms. Williams and counts 3 and 4 against Ms. Shinholster. At\nthe conclusion of the presentation of evidence at trial, both defendants moved for a\njudgment of acquittal pursuant to Crim.R. 29, which the trial court immediately\ndenied. Two days later, the trial court journalized its denial of the Crim.R. 29 motion\nin two entries, one for each defendant. The entries for both defendants listed counts 1\nand 2. But the entry regarding Ms. Shinholster should have listed counts 3 and 4 as\nthose were the charges against her. Of note, however, the entry reflected the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nappropriate offenses (both felonious assault). The court never corrected its error, but\nit later docketed an entry finding Ms. Shinholster guilty of the correct counts.\n {¶26} A clerical error is “ ‘a mistake or omission, mechanical in nature and\napparent on the record, which does not involve a legal decision or judgment.’ ” [CITATION],\nquoting [CITATION].\n {¶27} Ms. Shinholster acknowledges that the error was clerical. And the court\norally denied her Crim.R. 29 motion during trial. Further, the court later docketed an\nentry finding her guilty of the correct counts. While Ms. Shinholster argues her\nconviction should be vacated, we see no basis for vacating the conviction for what\nappears to be a scrivener’s error that did not affect her substantial rights. Nor does\nshe explain how she suffered any prejudice from this clerical error. Without any such\nargument, we see no utility in a remand to correct the error given that the ultimate\njudgment was correct.\n {¶28} In light of the foregoing analysis, we overrule Ms. Shinholster’s second\nassignment of error.\n C.\n {¶29} Finally, we consider Ms. Williams’s remaining arguments. In her first\nassignment of error, she asserts that the trial court failed to merge the felonious\nassaults in counts 1 and 2 when they were the same offenses against the same victim\nand were part of the same immediate and continuing course of conduct. Rather than\nordering Ms. Williams to serve count 2 concurrently, she argues that the court should\nhave merged the two counts. This court reviews R.C. 2941.25 merger determinations\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nde novo. [CITATION], ¶ 28.\n {¶30} The Ohio Supreme Court has repeatedly found convictions under these\nsections of R.C. 2903.11 “are allied offenses of similar import * * * when both are\ncommitted with the same animus against the same victim.” [CITATION], ¶ 1; see [CITATION], ¶ 1. While a defendant who commits allied\noffenses of similar import may be tried for both offenses, they may “only be sentenced\nfor one offense.” [CITATION], ¶ 5.\n {¶31} Here, Ms. Williams was charged with and convicted of felonious assault\nunder both R.C. 2903.11 (A)(1) and (A)(2), which respectively address the infliction of\nserious physical harm and the use of a deadly weapon to cause or attempt to cause\nphysical harm. Both charges result from her encouraging Ms. Shinholster to shoot and\nthe resulting injury caused to Jason. The trial court sentenced her on both counts\nconcurrently. But because the offenses were allied offenses of similar import, the court\nshould have merged the counts at sentencing. Underscoring the point, the state\nconcedes this error. Therefore, we sustain Ms. Williams’s first assignment of error.\n {¶32} In her second assignment of error, Ms. Williams claims that her\nconviction for felonious assault was against the manifest weight of the evidence and\nwas not supported by sufficient evidence because the state failed to establish the\nrequired elements of the offense. Specifically, she contests the “aiding and abetting”\nelement of R.C. 2923.03(A)(2), arguing that she did not act in concert with Ms.\nShinholster (who indisputably fired the shots) to commit felonious assault.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n {¶33} When reviewing a sufficiency challenge, this court asks “ ‘ “whether,\nafter viewing the evidence in a light most favorable to the prosecution, any rational\ntrier of fact could have found the essential elements of the crime proven beyond a\nreasonable doubt.” ’ ” [CITATION], quoting [CITATION], quoting [CITATION] (1991), paragraph two of the syllabus. “ ‘ “[W]here reasonable minds can reach\ndifferent conclusions upon conflicting evidence, determination as to what occurred is\na question for the trier of fact.’ ” ” (Emphasis deleted.) Id., quoting [CITATION], quoting [CITATION] at 279.\n {¶34} This court sits as the “thirteenth juror” when reviewing whether a\nconviction runs counter to the manifest weight of the evidence. [CITATION]. “[W]e review the evidence, the credibility of witnesses,\nand the entire record.” [CITATION], citing [CITATION]. But we will not reverse the conviction unless “the trial\ncourt ‘ “clearly lost its way and created such a manifest miscarriage of justice that the\nconviction must be reversed and a new trial ordered.” ’ ” Id., quoting [CITATION], quoting [CITATION] \n(1st Dist.1983).\n {¶35} It is undisputed that Ms. Shinholster shot Jason, so Ms. Williams’s\n\n[SEGMENT 26]\nguilt is premised on aiding or abetting. And to support a conviction for aiding or\nabetting under R.C. 2923.03(A)(2), “ ‘the evidence must show that the defendant\nsupported, assisted, encouraged, cooperated with, advised, or incited the principal in\nthe commission of the crime, and that the defendant shared the criminal intent of the\nprincipal. Such intent may be inferred from the circumstances surrounding the crime.’\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n” [CITATION]¶ 15, quoting [CITATION] syllabus. “ ‘ “[I]n order to aid or abet, whether by words, acts, encouragement,\nsupport, or presence, there must be something more than a failure to object.” ’ ” [CITATION] ¶ 12, quoting [CITATION], quoting [CITATION].\n {¶36} Ms. Williams maintains that no evidence existed of a common plan or\nscheme to fight or shoot anyone. But the state counters that Defendants acted in\nconcert to cause harm to Jason with a deadly weapon. Defendants planned to get a\nrefund from the store. They decided that Ms. Williams should enter the store because\nthe owners were less likely to recognize her. And Ms. Shinholster would wait in the\ncar on speaker phone, so she could hear everything that transpired inside (and come\nto her aid if necessary). Ms. Williams set the plan into motion by entering the store.\nAnd although Ms. Shinholster testified that she did not know Ms. Williams entered\nthe store with her firearm, she also stated it was their general practice to carry their\nfirearms, and both women were armed at the time of the affray.\n {¶37} Ms. Duffus had Ms. Williams pinned to the ground throughout most of\nthe physical encounter, so Ms. Williams was unable to access her firearm. However,\nthere is undisputed evidence that at least once during the encounter, Ms. Williams\ninstructed Ms. Shinholster to shoot. Ms. Shinholster testified that she did not\nremember Ms. Williams saying “shoot” or anything like that, but the prosecutor played\nJason’s 911 call and asked her if she could identify who yelled, “Shoot the bitch.” Ms.\nShinholster identified Ms. Williams as the speaker. And Ms. Duffus testified that Ms.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nWilliams instructed Ms. Shinholster to “shoot them.” While on the phone with 911\nfollowing the event, Ms. Duffus also stated: “The other one was saying shoot them,\nshoot them.”\n {¶38} In [CITATION], the defendant and members of his gang arrived at a party in search of an individual\nwho was involved in a previous altercation with a member of their gang. Witnesses\ntestified that the defendant yelled “Shoot” and “Shoot the [expletive].” Id. Shots were\nfired, and three individuals were injured. Id. Although the identity and the specific\ntarget of the shooter were uncertain, the Ohio Supreme Court upheld the juvenile\ncourt’s finding of delinquency under the principle of complicity by aiding and abetting\nbecause “the juvenile court evaluated the evidence, determined that the [defendant]\nhad actively encouraged a member of his gang to shoot at someone at the [victim’s]\nhome with the specific intent to cause harm, and found that the state had sufficiently\nshown transferred intent.” Id. at ¶ 17.\n {¶39} Like the defendant in [CITATION], Ms. Williams encouraged someone\nshe knew to be armed to shoot. Accordingly, based on these facts, Ms. Williams’s\nconviction for felonious assault was supported by sufficient evidence and was not\nagainst the manifest weight of the evidence. We overrule her second assignment of\nerror.\n * * *\n {¶40} In the appeal numbered C-230457, we overrule Ms. Shinholster’s\nassignments of error and affirm the trial court’s judgment.\n {¶41} And in the appeal numbered C-230436, we sustain Ms. Williams’s first\nassignment of error and overrule her second and third assignments of error. We\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n\nvacate her sentences and remand the case for resentencing at which the state must\nelect which of the allied offenses it will pursue against her. In all other respects, we\naffirm the trial court’s judgment.\n [CITATION].\n\nBOCK, P.J., and WINKLER, J., concur.\n\nPlease note:\n The court has recorded its entry on the date of the release of this opinion.\n\n====== \n[CITATION]\n\n\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n IN RE: G.W. : APPEAL NO. C-230268\n TRIAL NO. F17-28X\n :\n : O P I N I O N.\n\n\nAppeal From: Hamilton County Juvenile Court\nJudgment Appealed From Is: Affirmed\nDate of Judgment Entry on Appeal: April 24, 2024\n\n\nCharles H. Bartlett, Jr., for Appellant Father,\nThe Helbling Law Firm, LLC, and John J. Helbling, for Appellee Mother. OHIO FIRST DISTRICT COURT OF APPEALS\n\nBOCK, Presiding Judge.\n {¶1} This case arises from a custody dispute between appellant (“Father”)\nand appellee (“Mother”) over their minor daughter, G.W. On appeal, Father argues\nthat the juvenile court erred by denying his motion to hold Mother in contempt for\nviolating a court-approved shared-parenting plan and by awarding Mother custody of\nG.W. Because the record supports the juvenile court’s determinations that Mother\nsubstantially complied with the terms of the shared-parenting plan and that awarding\nMother custody of G.W. was in the child’s best interest, we affirm the juvenile court’s\njudgment and overrule Father’s assignments of error.\n I. FACTS AND PROCEDURE\n A. The shared-parenting plan and the parties’ motions\n {¶2} In March 2018, the juvenile court approved an agreed shared-parenting\nplan (“SPP”) under which the court granted Mother and Father equal legal and\nresidential custody of G.W. The SPP provided, “[e]ach parent shall be entitled to speak\nwith or otherwise communicate with their minor child at all reasonable times.” It\nrequired Mother and Father to mediate “any major disagreement between them\nrelating to the minor child” before any court hearing and to “consult as to the\nappropriate school placement for the minor child.” Finally, the SPP stated, “[n]either\nparent shall enroll their child in any school or non-school extracurricular activities\nand/or sports without the agreement of the other party. * * * Neither parent shall\nenroll the child in more than one non-agreed upon activity.”\n {¶3} In October 2019, Mother moved to terminate the SPP and sought sole\ncustody of G.W. Her motion additionally requested that the court hold Father in\ncontempt for failing to follow the SPP. Likewise, in December 2019, Father moved to\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nterminate the SPP and sought legal and residential custody of G.W. In 2020, Father\npetitioned the court to find Mother in contempt for failing to follow the SPP and moved\nfor sole custody of G.W.\n B. Magistrate hearing\n {¶4} After the court approved the SPP, G.W. split time between Mother and\nFather. Mother had lived in Colerain Township for nine years with her other daughter,\nZ.T., who was born in 2013. Father lived in St. Bernard when he signed the SPP. He\nmoved to Harrison, Ohio, with his wife, their infant child, and his wife’s son from a\nprior marriage. Father has since moved to Indiana.1\n {¶5} Regarding the logistics of G.W.’s medical care, for a time, Mother\nprovided health insurance for G.W. through her service with the Ohio National Guard.\nFather testified that on multiple occasions, he asked Mother to provide him with a\ncopy of her insurance card, but she never delivered. Mother explained that her\ninsurance information was contained on her military identification card, which she\ncould not copy per military policy. Mother testified that whichever parent was with\nG.W. at the time a medical appointment needed to be scheduled would make her\nmedical appointments and then tell the other parent about the appointment.\n {¶6} While both parents initially agreed that G.W. would attend preschool,\nafter the onset of the Covid-19 pandemic, Father objected to G.W. attending preschool.\nHe cited his concern for his mother and father, both of whom had health issues. As a\nresult of Father’s objections, G.W. did not attend preschool during the 2020-2021\n\n1 At the hearing, Father testified that he lived in Harrison and though he wanted to move to Indiana,\nhe had not done so. But both the magistrate’s and juvenile court’s decisions state that Father had\nmoved to Indiana. It is unclear from the record if or when Father moved to Indiana. But because\nFather does not challenge this finding and the juvenile court expressly gave Father’s move to\nIndiana no weight, this issue is immaterial to our review.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nschool year. When the 2021-2022 school year came around, Father again objected to\nG.W. attending preschool. Mother, however, enrolled G.W. in a preschool in her\n\n[SEGMENT 27]\ndistrict. (Mother also contacted a preschool in Harrison, Ohio, near Father, but the\npreschool was not accepting new students.) During that school year, Mother took G.W.\nto preschool during her parenting time. Father did not take G.W. to preschool during\nhis parenting time.\n {¶7} From 2019 through 2022, Mother signed G.W. up for several\nextracurricular activities, to which Father objected, partly due to his concerns with the\nCovid-19 pandemic. In 2019, Mother asked Father if he would consent to G.W.\nparticipating in gymnastics. While Father objected, Mother, believing that the SPP\nallowed either parent to enroll G.W. in one extracurricular at a time over the objection\nof the other parent, signed G.W. up for gymnastics. In 2020, G.W. quit gymnastics and\nMother enrolled her in ballet. In 2021, Mother asked Father to consent to G.W.\nparticipating in T-ball as well as ballet. But because Father objected, Mother did not\nregister G.W. in T-ball. In 2022, G.W. quit ballet and resumed gymnastics. Mother\nagain asked Father if he would consent to G.W. participating in T-ball and Father again\nobjected. Though Father objected to T-ball, Mother testified that she signed G.W. up\nfor T-ball because she believed that T-ball would not overlap with cheerleading, a new\nactivity for which Mother had registered G.W. As it turned out, T-ball overlapped with\ngymnastics and T-ball games fell on one of Father’s days with G.W.\n C. The magistrate’s and juvenile court’s decisions\n {¶8} Following the hearing, the magistrate granted both parties’ request to\nterminate the SPP, denied both parties’ motions for contempt, and granted Mother\nsole custody of G.W.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶9} Regarding custody, the magistrate noted that R.C. 3109.04(F)(1) sets\nforth the factors to consider in determining the child’s best interest and found that\nR.C. 3109.04(F)(1)(d), “the child’s adjustment to the child’s home, school, and\ncommunity,” was most applicable and weighed in favor of Mother. And the magistrate\nfound that neither Mother’s nor Father’s actions rose to the level of contempt. Father\nobjected to the magistrate’s decision.\n {¶10} In April 2023, the juvenile court overruled Father’s objections and\nadopted the magistrate’s decision. The juvenile court, like the magistrate, found that\nR.C. 3109.04(F)(1)(d) weighed in favor of Mother, noting that G.W. had spent nearly\na full school year at the school in Mother’s district. The juvenile court found that\nMother substantially complied with the SPP and denied both parties’ contempt\nmotions. The court terminated the SPP, awarded Mother legal custody of G.W., and\nawarded the parties equal parenting time.\n II. LAW AND ANALYSIS\n {¶11} Father raises two assignments of error: The trial court erred by (1)\nfailing to hold Mother in contempt, and (2) awarding Mother custody of G.W.\nA. The trial court correctly denied Father’s contempt motion\n {¶12} In asserting that the trial court erroneously denied his contempt\nmotion, Father argues that Mother testified that she failed to give Father a copy of her\ninsurance card despite multiple requests, did not consult with Father before making\nmedical and dental appointments, allowed G.W. to sleep in the same bed as Mother,\ninterfered with Father’s phone calls to G.W., and failed to use mediation to resolve\ndisagreements with Father.\n ```plaintext\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶13} An appellate court reviews a trial court’s ruling on a contempt motion\nfor an abuse of discretion. [CITATION], ¶ 19, citing [CITATION], ¶ 4. A court abuses its discretion when its judgment is\nunreasonable, arbitrary, or unconscionable. [CITATION]. A court has broad discretion to determine whether\na party violated its orders and what conduct constitutes contempt. [CITATION].\n {¶14} Parents subject to a custody order may seek a contempt finding when\nthe other party interferes or fails to comply with the order. R.C. 2705.031(B)(2). A\nmoving party establishes a prima facie case of civil contempt by proving, by clear and\nconvincing evidence, the nonmoving party’s failure to comply with an existing order.\n[CITATION], quoting [CITATION]. Once the movant establishes a prima facie case\nof contempt, the burden shifts to the nonmovant to establish a defense for the\nnoncompliance. [CITATION]. A party’s substantial compliance with a court order can\nserve as a defense to a contempt finding. See [CITATION]; see also [CITATION], ¶ 14. A technical violation of\na court’s order does not necessarily require a contempt finding. [CITATION], ¶ 13.\n {¶15} The record supports the juvenile court’s finding that Mother\nsubstantially complied with its order. Regarding the health-insurance card, the\njuvenile court credited Mother’s explanation that Mother could not provide Father\nwith a copy of her insurance card due to military policy prohibiting her from copying\nthe card. Moreover, Mother testified that she attempted to provide Father with her\n\n``` OHIO FIRST DISTRICT COURT OF APPEALS\n\ninsurance account numbers and made herself available for Father to call her so that\nshe could give medical providers her insurance information over the phone. As to\nMother’s failure to mediate, Father never moved to compel mediation. Further,\nMother and Father, with their attorneys, met several times to attempt to resolve\ndisputes. Next, regarding Mother’s enrolling G.W. in preschool, she agreed to forego\npreschool for the 2020-2021 year and attempted to consult with Father for the 2021-\n2022 school year. Notably, the SPP did not expressly require that the parties agree to\nG.W.’s school placement—instead, the plan required the parties to “consult.” Finally,\nthere was conflicting evidence involving whether Mother interfered with Father’s\ntelephone calls with G.W. and the court was entitled to believe Mother’s testimony\nover Father’s.\n {¶16} The juvenile court, which was in the best position to judge the witnesses’\ncredibility and weigh the evidence, determined that Mother was not in contempt of the\nSPP. The trial court was well within its discretion to deny Father’s motion for\ncontempt. We overrule Father’s first assignment of error.\n B. The juvenile court’s custody order was not an abuse of discretion\n {¶17} Father argues in his second assignment of error that the juvenile court\nerred in determining that awarding Mother custody of G.W. was in G.W.’s best\ninterest. First, Father argues that the court rewarded Mother for contumacious\nbehavior by placing weight on G.W.’s adjustment to her school when Mother enrolled\nG.W. over Father’s objections. Second, Father argues that the juvenile court failed to\nconsider which parent is “more likely to honor and facilitate court-approved parenting\ntime rights or visitation and companionship rights” as required by R.C.\n3109.04(F)(1)(f).\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶18} An appellate court reviews a juvenile court’s custody determination for\nan abuse of discretion. [CITATION]. Custody decisions are among the “most difficult and agonizing decisions” that juvenile\ncourts make. [CITATION], ¶ 14. Juvenile courts enjoy broad discretion in crafting those\ndecisions because the knowledge gained through observing the witnesses “cannot be\nconveyed to a reviewing court by a printed record.” [CITATION], citing [CITATION]. But that discretion is “not absolute;\nthe court must follow the procedures described in R.C. 3109.04 when making custody\ndecisions.” [CITATION], ¶ 7, citing [CITATION].\n {¶19} When terminating a shared-parenting plan, the juvenile court is\nrequired to allocate parental rights and responsibilities “as if no decree for shared\nparenting had been granted and as if no request for shared parenting ever had been\nmade.” R.C. 3109.04(E)(2)(d). When allocating parental rights, the juvenile court\nmust consider the best interest of the child based on “all relevant factors” including\nthose listed under R.C. 3109.04(F)(1) and (2). Relevant here, those factors include:\n (d) The child’s adjustment to the child’s home, school, and community;\n ***\n (f) The parent more likely to honor and facilitate court-approved\n parenting time rights or visitation and companionship rights;\n ***\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n (i) Whether the residential parent or one of the parents subject to a\n shared parenting decree has continuously and willfully denied the other\n parent’s right to parenting time in accordance with an order of the court.\nR.C. 3109.04(F)(1).\n {¶20} The juvenile court expressly set out the required factors under R.C.\n3109.04(F)(1) and (2), applied those factors, and found that it was in G.W.’s best\ninterest to award custody to Mother. The juvenile court discussed the relevant factors\nand explained why certain factors did not apply and why other factors did not weigh\nin favor of either parent.\n\n[SEGMENT 28]\n {¶21} The juvenile court found that, under [CITATION], G.W.’s\nadjustment to her school in Mother’s district weighed in favor of granting custody to\nMother. Though Father argues this finding rewards Mother for her contumacious\nbehavior in enrolling G.W. in school over his objections, the juvenile court correctly\nfound that Mother’s conduct did not constitute contempt. Further, [CITATION]’s\nfocus is on G.W.’s best interest, not whether either parent should be “rewarded” with\ncustody. [CITATION] required the juvenile court to consider only whether\nG.W. had adjusted well to her school and community. The juvenile court, noting that\nG.W. had attended the school in Mother’s district for almost a year, found that G.W.\nhad adjusted well to the school. That finding was supported by the record.\n {¶22} While Father asserts that G.W. could have adjusted just as well to a\nschool in his district, G.W. was never enrolled in his district, so the juvenile court could\nnot have found G.W. adjusted well to a school in Father’s district. In determining what\nis in a child’s best interest, juvenile courts consider “the present circumstances, not *\n* * what possibly may happen in the future” or what might have hypothetically\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nhappened if events had transpired differently. [CITATION]\n {¶23} Finally, Father argues that the juvenile court failed to consider which\nparent is “more likely to honor and facilitate court-approved parenting time rights or\nvisitation and companionship rights” as required by R.C. 3109.04(F)(1)(f). Mother\nargues that Father failed to raise this argument in his objections to the magistrate’s\ndecision and therefore waived it. Father failed to address the waiver issue and did not\ndevelop a plain-error argument.\n {¶24} “Except for a claim of plain error, a party shall not assign as error on\nappeal the court’s adoption of any factual finding or legal conclusion * * * unless the\nparty has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).”\nJuv.R. 40(D)(3)(b)(iv). All objections to a magistrate’s decision must be “specific and\nstate with particularity the grounds for objection.” Juv.R. 40(D)(3)(b)(ii). “When an\nappellant fails to develop a plain-error analysis, the appellate court need not create\none on the appellant’s behalf and may decline to reach the merits of the claim.” [CITATION], citing [CITATION]. Here, Father’s\nobjections and supplemental objections did not argue that the magistrate failed to\nconsider R.C. 3109.04(F)(1)(f). Because Father did not raise this argument below and\nhas not developed a plain-error analysis, this court declines to reach the merits of this\nargument.\n {¶25} The juvenile court weighed the evidence, considered the relevant factors\nunder R.C. 3109.04(F), and determined that awarding custody to Mother was in\nG.W.’s best interest. That decision was supported by competent credible evidence.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nWhile there was competing evidence about what was in G.W.’s best interest, the\njuvenile court was in the best position to weigh that evidence and decide what was in\nG.W.’s best interest. We hold that the juvenile court’s awarding Mother custody of\nG.W. was not an abuse of discretion and we overrule Father’s second assignment of\nerror.\n III. CONCLUSION\n {¶26} We overrule Father’s assignments of error and affirm the juvenile\ncourt’s judgment.\n\n Judgment affirmed.\nBERGERON and WINKLER, JJ., concur.\nPlease note:\n The court has recorded its entry on the date of the release of this opinion.\n\n====== \n[Cite as [CITATION].]\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n\n STATE OF OHIO, : APPEAL NO. C-230275\n TRIAL NO. B-2202579\n Plaintiff-Appellee, :\n O P I N I O N.\n vs. :\n KENDRA FRENCH, :\n Defendant-Appellant. :\n\n\nCriminal Appeal From: Hamilton County Court of Common Pleas\nJudgment Appealed From Is: Affirmed\nDate of Judgment Entry on Appeal: April 3, 2024\n\nMelissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,\nAssistant Prosecuting Attorney, for Plaintiff-Appellee,\nBrian A. Smith Law Firm, LLC, and Brian A. Smith, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS\n\nKINSLEY, Judge.\n {¶1} Defendant-appellant Kendra French appeals from the trial court’s\njudgment convicting her, after a bench trial, of felonious assault. French argues that\nher conviction was against the manifest weight of the evidence, contending that the\nevidence demonstrated that she had acted in self-defense. She further argues that the\ntrial court’s exclusion of a witness’s prior criminal history was an abuse of discretion\nand a violation of her rights to due process, a fair trial, and to confront and cross-\nexamine witnesses under the United States and Ohio Constitutions.\n {¶2} Because French’s belief of imminent bodily harm was not objectively\nreasonable, the state disproved self-defense beyond a reasonable doubt, and her\nconviction was therefore not against the manifest weight of the evidence. And because\nFrench’s counsel did not actually impeach the witness regarding his prior criminal\nhistory, the trial court properly excluded this testimony. Accordingly, we overrule\nFrench’s assignments of error and affirm the judgment of the trial court.\n Factual and Procedural Background\n\n {¶3} French was charged with two counts of felonious assault in violation of\nR.C. 2903.3(A)(1) and (2) in connection with a May 28, 2022 shooting that resulted in\ninjuries to French’s neighbor, F.H. The case proceeded to a bench trial on March 14,\n2023.\n {¶4} At the bench trial, F.H. testified that she lived at an apartment complex\non Losantiville Avenue and that French lived in the unit below her. The Losantiville\napartment complex had four units in total, with two units on each floor. There was an\norange-tiled landing at the entrance, with a set of stairs that led up to the first set of\n OHIO FIRST DISTRICT COURT OF APPEALS\n\napartment units on the right side and a door to a set of stairs leading down to the\nbasement and garage on the left side.\n {¶5} F.H. testified that she and French had a contentious relationship and\nthat she frequently asked French to keep the noise down to no avail. On the evening\nof May 28, 2022, F.H. and her boyfriend, Anthony Jackson, pulled into the driveway\nof the apartment complex after getting groceries and they saw that French and her\nfriend, Warren Bratcher, were seated on a ledge near the garage. According to F.H.,\nJackson and Bratcher began arguing first, and then French squared up to fight F.H.\nAt that point, all four parties engaged in a physical altercation.\n {¶6} After the fight broke up, F.H. and Jackson dropped off their groceries to\nF.H.’s apartment. F.H. testified that when she and Jackson went back downstairs to\nget the rest of the groceries, French shot her in the face as F.H. opened the door that\nled to the basement and garage.\n {¶7} F.H. testified that she was transported to the hospital after Jackson\ncalled 911, where she was diagnosed with maxillary and mandible fractures. She also\ntestified that she did not initiate the first altercation with French and that she did not\nhave any weapons that night. On cross-examination, she admitted that she provided\na statement at the hospital that she heard a knock on her door and was shot when she\nanswered, which contradicted her testimony at trial.\n {¶8} Jackson also testified at trial. He testified that when he and F.H. pulled\ninto the driveway, French said something that led to the first physical altercation\nbetween French and F.H. According to Jackson, he tried to break them up, but\nBratcher hit him, and he fell to the ground. Jackson also testified that F.H. was shot\nat the bottom of the basement stairs after he had gone back downstairs with her to get\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nmore groceries. But in an interview with the police, Jackson stated they had barely\ngotten the key in the front door when F.H. was shot, which seemingly implied they\nwere upstairs by F.H.’s apartment. In his testimony, Jackson also denied having\nweapons that day, either on his person or in F.H.’s apartment.\n {¶9} On cross-examination, French’s counsel tried to elicit testimony from\nJackson regarding a prior conviction for domestic violence. Though Jackson was\ncharged with domestic violence, he clarified that he was not sentenced to prison and\nthat he was not convicted of a crime punishable by more than a year. The state\nobjected to this testimony, and the trial court struck Jackson’s answer, because\nJackson’s conviction was not a felony or a crime of dishonesty in the last ten years.\n\n[SEGMENT 29]\nFollowing the state’s objection, there were no further questions on the issue by\nFrench’s counsel.\n {¶10} Detective Jacquelyn Metz also testified at trial. Metz indicated that she\ninterviewed French, French’s brother, and Jackson at the crime scene, which she also\ncanvassed. On the orange-tiled landing, she found a shell casing and a human tooth,\nand upstairs she found human blood and teeth. Though not qualified as an expert\nwitness, she testified that, based on her experience, she believed the shell casing came\nfrom a handgun.\n {¶11} Detective Charles Zopfi was an additional witness for the state at trial.\nZopfi testified that he interviewed F.H. at the hospital and that she identified French\nas the person who had shot her. Per Zopfi’s testimony, he also interviewed French in\nthe early hours of the morning on May 29, 2022. As Zopfi told the court, according to\nFrench in this interview, she shot F.H. when F.H. lunged down the stairs at French.\nZopfi relayed that French did not recall seeing a weapon on F.H., but that French was\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ncarrying her gun with her throughout the altercation. According to Zopfi, French also\ntold him that she had a history of disagreements with F.H., that she had a license to\ncarry a concealed weapon, and that she believed Jackson had a gun on the night of the\nshooting.\n {¶12} When the trial court took a recess during Zopfi’s testimony, French’s\ncounsel observed Zopfi and Officer Christian Russ discussing the case, ostensibly in\nviolation of a court order separating the witnesses. Zopfi averred that it was a lapse in\njudgment and no relevant information was exchanged. At the request of defense\ncounsel, the trial court admonished the witnesses not to speak to each other.\n {¶13} On cross-examination, Zopfi denied that the lack of physical evidence in\nthe basement was significant. Zopfi clarified that, according to F.H., she was coming\nup from the basement and going onto the orange-tiled landing when she was shot.\nBased on this, Zopfi contended it would not make sense to find blood stains in the\nbasement. Zopfi also acknowledged that he interviewed F.H. again two days after the\nincident without recording the interview, turning on his body-worn camera, or taking\nnotes.\n {¶14} Russ testified at trial that on the evening of the shooting, he found\nFrench sitting on the front curb of the apartment complex with a bloody nose.\nAccording to Russ, French said, “I am the one that shot her.” Russ testified that he\nand another officer retrieved French’s gun, which was empty. They then placed French\nin custody.\n {¶15} At the close of the state’s case, French moved for an acquittal under\nCrim.R. 29. The trial court denied this motion.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶16} French testified at trial. She testified that she and F.H. often had\ndisagreements. French further testified that she frequently heard F.H. and Jackson\ngetting into verbal and physical altercations. She believed that Jackson had a gun in\nF.H.’s apartment, although she had never seen it.\n {¶17} According to French, it was Jackson who initiated the first altercation\non the night of shooting. She maintained that F.H. made physical contact with her\nfirst by pulling her hair. French contended that Bratcher broke up the first fight.\nFrench further testified that her gun was in her waistband the whole time and that she\ndid not pull out her gun during the first altercation because she did not feel threatened\nat that point.\n {¶18} French indicated that she and Bratcher waited outside for a few\nmoments after the first altercation. French testified that when they went inside, F.H.\nlunged at her from the top of the stairs. French testified that because she thought that\nF.H. may have gotten a gun from Jackson, she shot F.H. as she lunged at her.\nAccording to French, this caused F.H. to fall backwards. French indicated that F.H.\nthen bounced up and ran to her apartment. French further testified that she intended\nto turn herself into the police to show that she was not guilty and had acted in self-\ndefense.\n {¶19} Bratcher also testified at trial. He testified that Jackson attacked him\nfirst. He heard a shot fired, but did not see anything. He left the scene after hearing\nthe shot. He also recalled telling French she should not have done what she did while\nshe was being arrested.\n {¶20} The following exhibits were moved into evidence at trial: surveillance\nvideos submitted by an anonymous neighbor to the police, a recording of Jackson’s\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ninterview with Metz, and the body-worn camera footage of an unidentified officer on\nthe scene that evening.\n {¶21} These exhibits demonstrate a number of key facts. For example, though\none of the surveillance videos was mostly obstructed by shrubbery and fencing, the\nother surveillance video showed two pairs of individuals fighting by the garage, with\none individual falling, as [CITATION] had testified, and another individual having her hair\npulled, as [CITATION] had testified. In addition, in [CITATION]’s interview with Metz, [CITATION]\nstated that [CITATION] was trying to get her gun from the car following the first altercation,\nbut that [CITATION] stopped her. He also indicated that [CITATION] and [CITATION] started the\nfight. In the body-worn camera footage, blood splatters were visible near F.H.’s unit,\nbut not in the basement. Additionally, an officer is seen commenting in the body-worn\ncamera footage that a tooth and casing were found on the orange-tiled landing.\n {¶22} Following the presentation of the defense case, [CITATION] renewed her\nCrim.R. 29 motion, which the trial court denied again. The trial court found that F.H.\nwas the initial aggressor in the first altercation, that [CITATION] had time to get her gun\nfrom her car following the first altercation, that [CITATION] was standing on the orange-\ntiled landing when the shooting occurred, and that F.H. was standing at the top of the\nsteps above the orange-tiled landing. The trial court found that [CITATION] had an honest\nbelief that she was in danger, but that her perception of the threat from F.H. lunging\nat her without a visible weapon was not reasonable. Further, the trial court found that\n[CITATION]’s use of force was disproportionate to the danger she perceived.\n {¶23} The trial court ultimately found [CITATION] guilty as charged and sentenced\nher to five-to-six years of incarceration. She now appeals.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n Self-Defense\n\n {¶24} In her first assignment of error, French argues that her conviction was\nagainst the manifest weight of the evidence, because, she contends, the evidence\nshowed she acted in self-defense.\n {¶25} “[I]n evaluating a manifest weight challenge involving self-defense, we\nmust review the entire record, consider the credibility of witnesses, and determine\nwhether the trier of fact clearly lost its way and created a manifest miscarriage of\njustice with respect to its finding that the state disproved at least one of the elements\nof self-defense beyond a reasonable doubt.” [CITATION]. To disprove self-defense, the state must establish\n“beyond a reasonable doubt that the defendant: (1) was at fault in creating the\nsituation giving rise to the affray; (2) did not have reasonable grounds to believe or an\nhonest belief that he or she was in imminent danger of bodily harm; or (3) violated a\nduty to retreat or avoid danger.” Id. at ¶ 11.\n {¶26} “The test for a bona fide belief of imminent bodily harm is both objective\nand subjective: whether the defendant’s belief is objectively reasonable and whether\nthe defendant subjectively had an honest belief of imminent bodily harm.” [CITATION] at ¶ 29.\n {¶27} Here, the trial court found that French subjectively had an honest belief\nof imminent bodily harm. In reaching this conclusion, the trial court accepted\nFrench’s version of events. It agreed with French that F.H. was the initial aggressor\nand that F.H. lunged at her from the top of the landing. But it did not find that French’s\nhonest belief was objectively reasonable.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶28} French argues that it was objectively reasonable, because it was\nplausible that F.H. had a gun in light of Jackson’s prior criminal history and that F.H.\ncould have reached for that gun when she lunged at French. She further argues that\nJackson and F.H. were not credible, that it was illogical that there were no bloodstains\nin the basement, and that her gun was on her person the entire evening. She also takes\nissue with Zopfi and Russ’s discussion of the case in violation of the trial court order\nrequiring the separation of witnesses.\n {¶29} The trial court found that French’s use of a gun was disproportionate to\nany apparent danger perceived from F.H. lunging down the stairs. F.H. and Jackson\n\n[SEGMENT 30]\ndenied having weapons that day. Though French challenges their credibility, “it is well\nsettled law that matters as to the credibility of witnesses are for the trier of fact to\nresolve.” [CITATION] “Because the trier of fact sees and hears the witnesses at trial, we must defer to the\nfactfinder’s decisions whether, and to what extent, to credit the testimony of particular\nwitnesses.” Id. Therefore, we defer to the trial court’s finding that F.H. was not armed\nand that French’s use of a gun was disproportionate.\n {¶30} French’s contention that the lack of physical evidence in the basement\ndisproves F.H.’s version of events is rebutted by Zopfi’s evidence. Zopfi clarified that\nF.H. did not mean she was in the basement when she was shot. Rather, F.H. was by\nthe orange-tiled landing, and it would therefore make sense that physical evidence was\nfound in the landing and not in the basement.\n {¶31} French also fails to explain how the conversation between Russ and\nZopfi affected the outcome of her case. Although French argues that this impacted\ntheir credibility, the court credited her version of events, not theirs. Additionally, the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ntrial court admonished Russ and Zopfi to stop talking to each other and confirmed that\nnothing of consequence was discussed.\n {¶32} Thus, the trial court did not lose its way in finding that the state\ndisproved that French had reasonable grounds to believe she was in imminent danger\nof bodily harm. We therefore overrule French’s first assignment of error.\n Evid.R. 609\n\n {¶33} In her second assignment of error, French argues that the trial court\nabused its discretion in excluding evidence of Jackson’s prior criminal history.\n {¶34} “A trial court’s decision to admit or exclude evidence is reviewed for an\nabuse of discretion.” [CITATION], ¶ 6. Evid.R. 609 governs impeachment of a witness’s credibility through the\nadmission of evidence of a prior criminal conviction, which is either a crime of\ndishonesty or a crime that is punishable by death or more than one year of\nimprisonment. Evid.R. 609(A). The conviction may be proven only by the witness’s\ntestimony or by public record shown to the witness during his or her examination.\nEvid.R. 609(F).\n {¶35} Here, however, French’s counsel failed to actually impeach Jackson\nwith a prior conviction. The following exchange occurred during Jackson’s cross-\nexamination:\n FRENCH’S COUNSEL: Have you been convicted of a crime punishable\n by more than one year in prison in the last ten years?\n JACKSON: Is you talking about like domestic violence or something like\n that? Yeah.\n FRENCH’S COUNSEL: Yes.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n JACKSON: But I haven’t been to prison, no.\n FRENCH’S COUNSEL: Okay. What I’m asking is have you been\n convicted of something punishable by more than one year?\n JACKSON: No.\n FRENCH’S COUNSEL: And even if you didn’t get a year, potentially\n punishable by more than a year in prison?\n JACKSON: No.\n ***\n STATE: Objection, Your Honor, to the relevance of any sort of prior\n domestic violence between [F.H.] and Anthony Jackson.\n ***\n TRIAL COURT: Right. The conviction was not for a felony or a crime of\n dishonesty in the last ten years. It’s inadmissible, so I’ll strike the\n answer.\n FRENCH’S COUNSEL: Fair enough.\n {¶36} Considering Jackson’s responses to French’s counsel’s questions,\nJackson never indicated that he had in fact been convicted of the requisite crime as\nrequired by Evid.R. 609(F). While Jackson indicated he had been convicted of\ndomestic violence, he denied having gone to prison at all for this crime and further\ndenied having any criminal conviction whatsoever for which he faced more than a year\nin prison. Following Jackson’s answers, French’s counsel did not use a public record\nof the conviction to impeach Jackson as Evid.R. 609(F) contemplates. Instead, when\nthe state objected, and the trial court struck Jackson’s answer, French’s counsel agreed\nto move on. Thus, because Jackson was never properly impeached under either of the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nmethods for proving a prior conviction under Evid.R. 609(F), the trial court did not\nabuse its discretion in excluding evidence of [CITATION]’s criminal history.\n {¶37} Accordingly, we overrule [CITATION]’s second assignment of error.\n Conclusion\n\n {¶38} For the reasons set forth above, the trial court’s finding that [CITATION]’s\nhonest belief of imminent bodily harm was objectively unreasonable was not against\nthe manifest weight of the evidence. Further, because [CITATION]’s counsel did not\nactually impeach [CITATION] under Evid.R. 609, the trial court did not abuse its\ndiscretion in excluding evidence of [CITATION]’s prior conviction. Accordingly, [CITATION]’s\nassignments of error are overruled, and the trial court’s judgment is affirmed.\n Judgment affirmed.\n\nZAYAS, P.J., and WINKLER, J., concur.\n\nPlease note:\n The court has recorded its own entry on the date of the release of this opinion.\n \n[Cite as [CITATION].]\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n STATE OF OHIO, : APPEAL NOS. C-230288\n C-230318\n Plaintiff-Appellee, : TRIAL NO. B-1900989\n vs. :\n O P I N I O N.\n ELTON WHITTLE, :\n Defendant-Appellant. :\n\n\nCriminal Appeals From: Hamilton County Court of Common Pleas\nJudgment Appealed From Is: Affirmed\nDate of Judgment Entry on Appeal: March 20, 2024\n\n\nMelissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,\nAssistant Prosecuting Attorney, for Plaintiff-Appellee,\nRobinson & Brandt, P.S.C., and Jeffrey M. Brandt, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS\n\nWINKLER, Judge.\n {¶1} Defendant-appellant Elton Whittle was originally indicted on one count\nof trafficking in heroin, one count of possession of heroin, three counts of trafficking\nin a fentanyl-related compound, three counts of possession of a fentanyl-related\ncompound, one count of trafficking in cocaine, one count of possession of cocaine, one\ncount of trafficking in drugs, and one count of possession of drugs. A jury returned\nguilty verdicts on all 12 counts.\n {¶2} At the sentencing hearing, the trial court and the parties indicated that\nan 11-year sentence was mandatory. The court sentenced Whittle to 11 years in prison\non count three, trafficking in a fentanyl-related compound. For reasons not apparent\nin the record, it then merged all the other counts into count three. These appeals\nfollowed.\n Factual Background\n {¶3} In July of 2017, Officer Scott Brians of the Cincinnati Police Department\nreceived information from security officers at Cincinnati Children’s Hospital Medical\nCenter (“Children’s Hospital”) about drug sales occurring on Winslow Avenue\nadjacent to the hospital’s parking garage. They reported that a black man was\nconducting hand-to-hand drug transactions out of a Chevrolet Malibu that was parked\non Winslow. They also provided Officer Brians with the license plate number of that\ncar. After checking with the Bureau of Motor Vehicles (“BMV”), he found that it was\nregistered to 2840 Winslow Avenue, Apartment B.\n {¶4} In early August 2017, Officer Brians met with a reliable, confidential\ninformant identified as “CI#1.” CI#1 told him that the suspect in the ongoing drug\nsales went by the street name “E” and used a specific telephone number. CI#1 also\nsaid that E used a gold Dodge Durango when making the sales. Officer Brians located\n OHIO FIRST DISTRICT COURT OF APPEALS\n\na vehicle matching that description parked on Winslow Avenue and obtained its\nlicense plate number. After checking that license plate with the BMV, he learned that\nit was also registered to 2840 Winslow Avenue, Apartment B. A check of the Regional\nCrime Information Center database revealed that Whittle, who had numerous drug-\nrelated arrests, was attached to that license plate number. After seeing a BMV photo\nof Whittle, CI#1 confirmed that Whittle was the person he knew as E, who was selling\ndrugs.\n {¶5} On August 25, 2017, officers met with another reliable confidential\ninformant identified as “CI#3” to arrange a controlled purchase of drugs from E.\nOfficer Brians monitored a call from CI#3 to E using the phone number he had\nobtained from CI#1. E directed CI#3 to meet him at a gas station at the corner of\nReading Road and East Martin Luther King Drive. Officers saw Whittle arrive in a\ngold Dodge Durango with the previously identified license plate number. Whittle got\nout of the vehicle, approached CI#3, and engaged in a hand-to-hand transaction.\n\n[SEGMENT 31]\nSubsequently, the officers met with CI#3 and recovered the drugs that CI#3 had\npurchased, which were later identified as a heroin/fentanyl mix.\n {¶6} On September 5, 2017, the officers arranged another controlled\npurchase. Officer Brians monitored a call from CI#3 to Whittle to arrange a purchase\nof heroin/fentanyl. Whittle directed CI#3 to go to Winslow Avenue. At that meeting,\nthe officers saw Whittle go to a side door at 2840 Winslow Avenue, retrieve something\nfrom inside the door, approach CI#3, and engage in a hand-to-hand transaction. The\nofficers recovered the drugs purchased by CI#3, which were later identified to be a\nheroin/fentanyl mix.\n {¶7} On October 30, 2017, a security officer at Children’s Hospital again\ncalled police to report ongoing drug sales at 2840 Winslow Avenue and described the\nseller. That description was consistent with the police officers’ observations of\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nWhittle. The security officer also stated that the seller lived in an apartment inside\n2840 Winslow Avenue and drove a gold Dodge Durango, with the previously identified\nlicense plate, which was parked in the driveway of 2840 Winslow Avenue.\n {¶8} Brians stated that the investigation of Whittle’s drug sales was put on\nhold for several months when higher priority cases arose. On March 28, 2018, officers\nmonitored a phone call between another confidential informant identified as “CI#2”\nat the same phone number as the previous buys. Whittle directed CI#2 to the gas\nstation at the corner of Reading Road and Martin Luther King Drive. Whittle drove\nup in the gold Dodge Durango with the previously identified license plate. He got out,\napproached CI#2, and engaged in a hand-to-hand drug transaction. Once again, the\nofficers recovered drugs later identified as a heroin-fentanyl mix. When shown a\npicture of Whittle, CI#2 identified Whittle as the person who had sold the drugs.\n {¶9} On February 6, 2019, a source of information identified as “SI#1”\ninformed officers that a trafficker known as E, using the same phone number, sold\nnarcotics out of 2840 Winslow Avenue, Apartment B. SI#1 also told them that E was\ndriving a silver Toyota Avalon with tinted windows. When shown a photo of Whittle,\nSI#1 identified Whittle as E.\n {¶10} Officers conducted surveillance at 2840 Winslow Avenue and saw a\nsilver Toyota Avalon with tinted windows parked in the driveway. They saw Whittle\ncome out of the building, get into the Toyota and drive away. A short time later, he\nreturned and used keys to enter the building. A BMV check revealed that the Toyota\nwas registered to Whittle at the Winslow Avenue address. On February 20, 2019, the\nofficers saw Whittle get out of the Toyota in the parking lot of a drive-through, engage\nin a hand-to-hand transaction, and then get back into the vehicle.\n {¶11} Based on the information the officers had obtained, Officer Brians\nobtained a search warrant to search the premises at 2840 Winslow Avenue, which had\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nfour apartments, two on each floor. The warrant stated that apartment B was on the\ntop northwest corner. It also allowed the officers to search the Dodge Durango and\nthe Toyota Avalon.\n {¶12} Police officers executed the warrant on February 22, 2019. In the\napartment at the northwest corner of the building, they found mail with Whittle’s\nname and address on it, fentanyl packaged for sale, packaging material, “ripped up”\nlottery tickets, numerous handguns and ammunition, seven cell phones, cash, pills,\nheroin, marijuana and digital scales. In the basement’s common area, officers found\nmore torn lottery tickets and torn plastic baggies, both of which are commonly used to\npackage drugs. They also found a digital scale, a piece of mail and a traffic ticket with\nWhittle’s name on them, and bags of heroin and fentanyl on the top of a bookshelf. A\ndrug dog alerted to an unlocked storage unit marked “C,” the door of which was\nopened. Inside, the officers recovered heroin, fentanyl from the pocket of a gray and\nblack shirt, a 12-gauge shotgun, and several handguns.\n {¶13} Whittle was indicted on one count of trafficking in heroin, one count of\npossession of heroin, three counts of trafficking in a fentanyl-related compound, three\ncounts of possession of a fentanyl-related compound, one count of trafficking in\ncocaine, one count of possession of cocaine, one count of trafficking in drugs, and one\ncount of possession of drugs. He subsequently filed a motion to suppress, in which he\nalleged the search was improper because the warrant allowed police to search\napartment B, but they had actually searched apartment D, and the warrant did not\nallow the officers to search in the basement anywhere but the storage bin for\napartment B. The trial court overruled the motion.\n {¶14} Following a jury trial, Whittle was found guilty of all 12 counts charged\nin the indictment. The trial court sentenced him on count three, which was trafficking\nin a fentanyl-related compound under R.C. 2925.03(A)(2), and merged the other\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ncounts. As required by R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b), the trial court\nsentenced Whittle to a mandatory 11 years in prison. This appeal followed.\n Search-Warrant Issues\n {¶15} Whittle presents six assignments of error for review. In his first\nassignment of error, he contends that the trial court erred by failing to grant his motion\nto suppress. He argues that the search warrant failed to accurately and particularly\ndescribe the residence to be searched, no probable cause existed that evidence would\nlikely be found in the residence to be searched, and that the officers failed to act in\ngood faith by entering the incorrect residence rather than seeking a new and accurate\nwarrant once they learned that the description of the property was inaccurate. This\nassignment of error is not well taken.\n {¶16} Appellate review of a motion to suppress presents a mixed question of\nlaw and fact. We must accept the trial court’s findings of fact as true if competent,\ncredible evidence supports them. But we must independently determine whether the\nfacts satisfy the applicable legal standard. [CITATION].\n {¶17} To establish probable cause to issue a search warrant, the supporting\naffidavit must contain sufficient information to allow a magistrate to draw the\nconclusion that evidence is likely to be found at the place to be searched. [CITATION], ¶ 11 (1st Dist.). Probable cause\nexists when a reasonably prudent person would believe that a fair probability exists\nthat the place to be searched contains evidence of a crime. [CITATION], paragraph one of the syllabus; [CITATION]. “[I]t is\nclear that ‘only the probability, and not prima facie showing, of criminal activity is the\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nstandard of probable cause.’ ” (Emphasis deleted.) [CITATION], quoting [CITATION].\n {¶18} A reviewing court, which includes a trial court ruling on a motion to\nsuppress, as well as an appellate court, must give great deference to the magistrate’s\nprobable-cause determination. [CITATION]. “[A]fter-the-fact\nscrutiny by the courts of the sufficiency of an affidavit should not take the form of de\nnovo review.” [CITATION], quoting [CITATION]. Our duty is to ensure that the\nissuing magistrate had a substantial basis for concluding that probable cause\nexisted. See [CITATION]. Doubtful or marginal cases should be\nresolved in favor of upholding the warrant. [CITATION].\n {¶19} A search warrant and its supporting affidavit must particularly describe\nthe place to be searched. Crim.R. 41(C); [CITATION]. Because a search warrant and supporting affidavit\nusually contain more information than just an address to identify the place to be\nsearched, a search warrant is not necessarily invalid if it describes the property to be\nsearched with an incorrect address. [CITATION]. To determine whether a\nproperty description is constitutionally valid, the trial court must determine whether\nthe place to be searched is described with sufficient particularity to enable the\nexecuting officer to locate and identify the premises with reasonable effort and\nwhether there is a reasonable probability that another premises might be mistakenly\nsearched. [CITATION].\n {¶20} As to the place to be searched, the warrant stated:\n OHIO FIRST DISTRICT COURT OF APPEALS\n Winslow Avenue #B, Cincinnati Ohio, 45206. Further described\n as a two story red brick multi-family building with red trim Entry to the\n building is thru [sic] a white steel door on the west side of the building.\n Entry to apartment B will be thru [sic] a brown wooden door with the\n letter B affixed to it located on the second floor, North West corner.\n {¶21} At the hearing on the motion to suppress, Officer Brians testified that\nbefore the execution of the search warrant, he knew that Whittle’s mother lived in the\n\n[SEGMENT 32]\nbottom right apartment, Whittle’s father lived in the top right apartment, an unknown\nperson lived in the bottom left apartment, and Whittle lived in the top left apartment,\nwhich was the northwest corner of the building. He identified apartment B in his\naffidavit because he relied on information from a confidential informant who told him\nthat the apartment letter was B, that it had a brown door, and that it was located on\nthe northwest corner of the second floor. He conducted BMV checks to rule out the\nother apartments.\n {¶22} When Officer Brians was asked if he searched apartment B, he replied,\n“The top, left apartment, yes.” When asked if he had checked the letters on the doors,\nhe said that he had not because SWAT officers had already cleared the apartment that\nhe described as “the goal apartment or the objective apartment [that] was the top, left\napartment in the northwest corner.” When he entered the building, he did not look at\nany of the apartments on the first floor and did not see any letters on the doors of\neither of the two apartments on the second floor.\n {¶23} The state submitted into evidence a photograph of the door taken at the\ntime of the search. It shows a brown door with no letter on it. Officer Brians stated\nthat the picture depicted the door to the apartment that was searched. On cross-\nexamination, defense counsel showed him a photo taken months after the execution\nof the warrant. Officer Brians acknowledged that the apartment on the top northwest\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ncorner of the building was not apartment B. He added, “The top northwest corner is\nwhat I considered to be apartment B when I wrote the warrant.”\n {¶24} Officer Brians also acknowledged that the photo depicted apartment B\nas being on the first floor, but he said that “I don’t know that it was that way at the\ntime of the warrant.” He also agreed with the statement that “[f]or all we know, this\n‘B’ could have been placed there by Mr. Whittle or someone else after the fact.”\n {¶25} Although the warrant in this case mistakenly listed apartment B as the\nplace to be searched, the warrant and the testimony at the suppression hearing clearly\nshowed that the premises to be searched was on the top floor of the northwest corner\nof the building, and that was the apartment that the police officers searched. Inside\nthat apartment, they found mail with Whittle’s name on it. The information known to\nthe officers as set forth in the warrant was sufficient to locate the apartment with\nreasonable efforts.\n {¶26} Further, the house had been under surveillance before the search. The\nofficer who drafted the affidavit used to obtain the warrant also participated in the\nexecution of the warrant, which diminishes the chances of a mistaken search. See\n[CITATION]. Under the\ncircumstances, we cannot hold that the trial court erred in denying Whittle’s motion\nto suppress. Therefore, we overrule his first assignment of error.\n {¶27} In his second assignment of error, Whittle contends that trial court\nerred in failing to suppress evidence “as a result of an invalid and otherwise flawed\nsearch warrant.” He argues that the search warrant was invalid because the affidavit\nin support of the warrant did not have a notary seal. This assignment is not well taken\n {¶28} R.C. 2933.23 governs the affidavit supporting a search warrant. It\nprovides,\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n A search warrant shall not be issued until there is filed with the judge or\n magistrate an affidavit that particularly describes the place to be\n searched, names or describes the person to be searched, and names or\n describes the property to be searched for and seized; that states\n substantially that the offense in relation to the property and that the\n affiant believes and has good cause to believe that the property is\n concealed at the place or on the person; and that states the facts upon\n which the affiant’s belief is based.\n {¶29} Similarly, Crim.R. 41(C)(1) provides,\n A warrant shall issue on either an affidavit or affidavits sworn to before\n a judge of a court of record or an affidavit or affidavits communicated\n to the judge by reliable electronic means establishing the grounds for\n issuing the warrant. In the case of a search warrant, the affidavit shall\n name or describe the person to be searched or particularly describe the\n place to be searched, name or describe the property to be searched for\n and seized, state substantially the offense in relation thereto, and state\n the factual basis for the affiant’s belief that such property is there\n located.\n {¶30} The affidavit supporting the warrant meets those requirements.\nNeither the statute nor the rule requires the affidavit to be notarized. Whittle\nacknowledges that the statute and the rule do not require a notary seal. Nevertheless,\nhe cites [CITATION], which requires a notary public to obtain a seal prior to the\ndischarge of his or her official duties, and [CITATION], the statute setting forth\nnotarial certificate requirements. He argues that these statutory provisions apply\nbecause under the rules of statutory construction a more specific statute controls over\n\n====== End of Document ====== OHIO FIRST DISTRICT COURT OF APPEALS\n\na more general statute. Therefore, the more specific provisions of R.C. 147.542\noverride the more general provisions of R.C. 2933.23 and Crim.R. 41. See R.C. 1.51.\n {¶31} But Whittle has it backwards. R.C. 2933.23 and Crim.R. 41 codify the\nspecific requirements for search warrants and the affidavits supporting those\nwarrants, while R.C. Chapter 147 applies to notary publics and their certifications of\ndocuments generally. Therefore, R.C. 2933.23 and Crim.R. 41 supersede R.C.\nChapter 147. See [CITATION].\n {¶32} Moreover, generally, suppression of evidence is only warranted for rule\nviolations of “constitutional magnitude.” [CITATION]. Ministerial acts should not “cause a warrant to fail.” [CITATION]. Even if a notarization of the\nwarrant was required, the affidavit was sworn to in the presence of a judge, and the\nfailure to have it notarized would not render it inadmissible by the Fourth\nAmendment. See [CITATION]. Consequently, we overrule Whittle’s second\nassignment of error.\n Other-Acts Evidence\n {¶33} In his third assignment of error, Whittle contends that the trial court\nerred in admitting evidence of the five controlled buys as he was not charged with any\noffenses as a result of those buys. He argues that it was improper character evidence\nadmitted in violation of Evid.R. 404(B). This assignment of error is not well taken.\n {¶34} The state argues and this court has held that Evid.R. 404(B) does not\napply to acts that are “not independent” of the charged crime. [CITATION].\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nHamilton No. C-210227, [CITATION], ¶ 14. Other-acts evidence is admissible\nwhen the other acts demonstrate the “setting” of a case and are part of the “immediate\nbackground” of the charged offenses. [CITATION], 1st Dist. Hamilton No. C-\n220477, [CITATION], 1st Dist. Hamilton No. C-220570,\n[CITATION], 208 N.E.3d 1043, ¶ 19 (1st\nDist.); David at ¶ 16; [CITATION], 1st Dist. Hamilton No. C-170371, [CITATION], ¶ 30.\n {¶35} Whittle did not object when evidence of the controlled buys was\npresented at trial. The failure to object precludes him from raising the issue on appeal\nunless it rises to the level of plain error. [CITATION], 3 Ohio St.3d 12, 13, 444\nN.E.2d 1332 (1983); [CITATION] 1st Dist. Hamilton No. C-120561, [CITATION], ¶ 22. An alleged error does not rise to the level of plain error unless, but for the\nerror, the outcome of the trial would have been otherwise. [CITATION], 50 Ohio\nSt.3d 114, 119-120, 552 N.E.2d 913 (1990); [CITATION], 1st Dist. Hamilton No.\nC-081237, [CITATION], ¶ 6.\n {¶36} Whittle also argues that the trial court should have excluded the\nevidence of the controlled buys under Evid.R. 403(A), which provides that relevant\nevidence is not admissible if its “probative value is substantially outweighed by the\ndanger of unfair prejudice.” We do not address whether the trial court erred in\nadmitting other-acts evidence under Evid.R. 404(B) or Evid.R. 403(A). Given the\noverwhelming evidence of Whittle’s guilt, we cannot hold that but for the admission\nof the other-acts evidence, the outcome of the trial would have been otherwise.\nTherefore, any error did not rise to the level of plain error. See [CITATION], 50 Ohio\nSt.3d at 119-120, 552 N.E.2d 913; [CITATION], 1st Dist. Hamilton No. C-081237, [CITATION], at ¶ 6. Consequently, we overrule Whittle’s third assignment of error.\n\n[SEGMENT 33]\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n Constructive Possession\n {¶37} In his fourth assignment of error, Whittle contends that “the jury\nverdicts finding Whittle guilty of all 12 offenses” were against the manifest weight of\nthe evidence. He argues that the state failed to present competent, credible evidence\nthat Whittle possessed the items found in the common areas of the basement. This\nassignment of error is not well taken.\n {¶38} A conviction requires a finding of guilt and a sentence. [CITATION], ¶ 35. Whittle was\nonly convicted of one count of trafficking in a fentanyl-related compound under R.C.\n2925.03(A)(2). Therefore, we address this assignment of error only as it relates to\nthat conviction.\n {¶39} R.C. 2925.01(K) provides that possession “means having control over\na thing or a substance, but may not be inferred solely from mere access to the thing\nor substance through ownership or occupation of the premises upon which the thing\nor substance is found.” A defendant’s possession of a thing or substance may be\nactual or constructive. [CITATION], ¶ 12. Courts have defined constructive possession as “knowingly\nexercising dominion and control over an object, even though the object is not within\nthe person’s immediate physical possession.” [CITATION], ¶ 32, citing [CITATION]. The person must be “conscious of the presence of the\nobject.” [CITATION]. The state may prove dominion and control and\nconsciousness of the object by circumstantial evidence. [CITATION].\n {¶40} In the common area of the basement, the police officers found a trash\ncan filled with “tear-offs” from plastic baggies, which was indicative of preparing\n OHIO FIRST DISTRICT COURT OF APPEALS\n\ndrugs for sale, and more lottery tickets, the same as were recovered from the\napartment. In boxes, they found torn papers with Whittle’s name and address on\nthem, torn lottery tickets, and torn baggies. On a shelving unit, the officers found\nmore personal documents with Whittle’s name and address on them. They found\nlarge baggies of heroin and fentanyl sitting on a bookshelf.\n {¶41} In the storage bin marked “C,” they found a gray and black shirt that\nhad a bag of drugs in its pocket. They found a shotgun, and in a hole in the ceiling,\nthey found several handguns. They found digital scales, commonly used to weigh\ndrugs for sale, and bags with residual amounts of heroin, fentanyl, and other drugs.\n {¶42} Given the presence of identifying documents and other of Whittle’s\npersonal effects in the apartment where drugs were packaged for sale and other\ndocuments and personal effects in the basement, the circumstantial evidence was\nsufficient to allow the jury to infer that Whittle had constructive possession of the\nfentanyl found in the basement. Though Whittle denied knowing about any of the\ndrugs in the basement, the jury did not believe him. Matters as to the credibility of\nevidence are for the trier of fact to decide. [CITATION].\n {¶43} After reviewing the record, we cannot hold that the trier of fact lost its\nway and created such a manifest miscarriage of justice that we must reverse Whittle’s\nconviction and order a new trial. Therefore, the conviction was not against the\nmanifest weight of the evidence. See [CITATION]. We overrule Whittle’s fourth assignment of error.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n Right to Counsel\n {¶44} In his fifth assignment of error, Whittle contends that the trial court\nerred in failing to grant his request to fire counsel or to at least investigate whether\nnew counsel was appropriate or whether he should be permitted to represent himself.\nThis assignment of error is not well taken.\n {¶45} The record shows that Whittle changed counsel numerous times over\nthe course of the proceedings. At the sentencing hearing, Whittle announced that he\nwanted to fire his counsel. He stated, “I asked for a few things that I needed and he\ndidn’t get it.” The court replied, “No. He is with you through this case * * *.” Whittle\nadded that he wanted to fire his counsel before trial, but that the court “didn’t give\nme a chance to,” to which the court replied that Whittle’s assertion was false. As the\ncourt started to proceed on the sentencing hearing, Whittle asked, “I can’t fire my\nlawyer?” To which the court replied, “Not at a sentencing on a case where the\nsentence is predetermined by law.”\n {¶46} The Sixth Amendment right to counsel, implicitly embodies a\n“correlative right to dispense with a lawyer’s help.” [CITATION], ¶ 23, quoting [CITATION]. A defendant in a\ncriminal trial has an independent constitutional right to represent himself at trial\nwithout counsel when the defendant knowingly, voluntarily chooses to waive counsel.\n[CITATION],\n¶ 5.\n {¶47} A criminal defendant must “unequivocally and explicitly invoke” the\nright to self-representation. [CITATION], ¶ 29. The record does not show that Whittle unequivocally invoked his\nright to self-representation. Further, the request to waive counsel must be timely\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nmade. [CITATION]. A\nmotion to waive counsel at the sentencing hearing is not timely. Therefore, the trial\ncourt did not err in refusing to allow Whittle to represent himself and proceed pro se\nat the sentencing hearing.\n {¶48} Further, the trial court did not err in failing to investigate whether new\ncounsel should be appointed. An indigent defendant has the right to competent,\neffective representation, but not to have the counsel of his or her choice. [CITATION]. “[A] an indigent defendant has no right to have\na particular attorney represent him and therefore must demonstrate ‘good cause’ to\nwarrant substitution of counsel.” [CITATION], quoting [CITATION].\nWe review the trial court’s decision to deny a motion for substitute counsel under an\nabuse-of-discretion standard. [CITATION].\n {¶49} The record shows that Whittle had changed attorneys several times,\nand the request to fire his attorney was not timely made. The record does not support\nhis assertion that he wanted to fire counsel before the trial. Under the circumstances,\nwe cannot hold that the trial court abused its discretion in denying Whittle’s motion.\nFurther, even if the court had erred, the court had no choice but to impose a\nmandatory prison term. See R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b). Therefore,\nany error was harmless. See Crim.R. 52(A). We overrule Whittle’s fifth assignment\nof error.\n OHIO FIRST DISTRICT COURT OF APPEALS\n\n {¶50} Finally, in his sixth assignment of error, Whittle contends that he was\ndenied the effective assistance of counsel. He argues generally that counsel failed to\nobject to improper testimony. He claims that he was prejudiced because an appellate\ncourt could only review it for plain error. This assignment of error is not well taken.\n {¶51} A court will presume that a properly licensed attorney is competent,\nand the defendant bears the burden to show ineffective assistance of counsel. [CITATION]. To sustain a claim for\nineffective assistance of counsel, the defendant must demonstrate that counsel’s\nperformance was deficient and that the deficient performance prejudiced the defense.\n[CITATION]. Counsel’s failure to object is not, by itself, enough to sustain\na claim for ineffective assistance of counsel. [CITATION].\n {¶52} Whittle fails to specify where counsel was ineffective for failing to\nobject. The appellant bears the burden to show error by reference to the record. To\nbe considered on appeal, errors by a trial court must be argued and supported by legal\nauthority and citation to the record. App.R. 16(A); [CITATION]. “If an argument exists that can support [an]\nassignment of error, it is not this court’s duty to root it out.” [CITATION],\nquoting [CITATION]. Therefore, we decline to address Whittle’s argument. See [CITATION]. Consequently, we overrule Whittle’s sixth\nassignment of error and affirm the trial court’s judgment.\n Judgment affirmed.\nZAYAS, P.J., and KINSLEY, J., concur.\nPlease note:\n OHIO FIRST DISTRICT COURT OF APPEALS\n\nThe court has recorded its own entry this date.\n \n\nNow, respond to the instruction.\n### Instruction:\nFor the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:\n- \"Related Segments\": Segments where the \"Target Case\" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.\n- \"Supporting Segments\": Segments where the \"Target Case\" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.\n\n### Target Case:\n[Cite as State v. Warth, 2023-Ohio-3641.]\n\n\n\n\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n\n\n\n STATE OF OHIO, : APPEAL NO. C-220477\n TRIAL NO. B-2102322\n Plaintiff-Appellee, :\n\n vs. :\n O P I N I O N.\n CHRISTOPHER WARTH, :\n\n Defendant-Appellant. :\n\n\n\n\nCriminal Appeal From: Hamilton County Court of Common Pleas\n\nJudgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause\n Remanded\n\nDate of Judgment Entry on Appeal: October 6, 2023\n\n\n\n\nMelissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,\nAssistant Prosecuting Attorney, for Plaintiff-Appellee,\n\nBryan R. Perkins, for Defendant-Appellant.\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nBOCK, Judge.\n\n\n {¶1} Defendant-appellant Christopher Warth appeals his conviction for\n\nfelonious assault, raising 14 assignments of error. We affirm the trial court’s judgment\n\nin part, reverse it in part, and remand the cause for further proceedings.\n\n I. Facts and Procedure\n\n {¶2} Warth was indicted on two counts of felonious assault under R.C.\n\n2903.11(A)(1) and (2), respectively. The matter was tried to a jury.\n\n Surveillance video captured shooting.\n\n {¶3} At trial, the state introduced three surveillance videos taken from\n\nWarth’s property. One was from inside Warth’s home and showed the front door. The\n\nsecond video showed the front door from the porch. The third showed the driveway,\n\nyard, and sidewalk.\n\n {¶4} April Estes testified that, in May 2021, after the police informed her that\n\nthey could not pursue charges on the allegation that Warth had sexually assaulted\n\nEstes’s daughter in 2007, she went to Warth’s home to inform him that she knew about\n\nthe assault. Estes’s girlfriend, Ashley, was in the vehicle with Estes.\n\n {¶5} Estes knocked on Warth’s door and April Tyler, Warth’s mother, opened\n\nthe front door but remained behind the closed screen door. Video surveillance\n\nsupports Estes’s testimony that she never touched the door other than knocking on it\n\nand was not trying to get inside the home.\n\n {¶6} According to Estes, she asked Tyler for Warth and explained the\n\nallegation against him. As the two began arguing, Warth came downstairs with a gun\n\nin hand. The surveillance video shows that Warth had the gun raised to where Estes\n\n\n 2\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\ncould see it through the screen door. Estes testified that, when Warth came\n\ndownstairs, he looked “like a maniac with his firearms and stuff.”\n\n {¶7} Tyler testified that Estes made no threats before Warth got downstairs\n\nwith his gun already in hand. Warth went to the door and then put the gun on the\n\nkitchen table.\n\n {¶8} As Estes, Tyler, and Warth continued to argue through the screen door,\n\nTyler smacked Estes in the forehead through the screen door and then closed the solid\n\ndoor. Warth went into another part of the home. Estes walked off the porch of the\n\nhome and toward the sidewalk. Tyler and Warth continued to argue with Estes from\n\ninside of their home. Tyler called 911 as the situation continued.\n\n {¶9} Tyler told the operator that she did not think that Estes had any\n\nweapons. Warth went out onto the porch with his gun as Tyler spoke with the 911\n\noperator. Estes stated that, by the time Warth exited from the house with his gun the\n\nfirst time, Tyler had already shut the door and Estes was at or near the sidewalk. Tyler\n\nalso came outside and began to argue with Estes again as Estes slowly backed off of\n\nthe property toward the street. As Warth went back inside the house, Tyler picked up\n\na flowerpot and motioned as if she were going to throw it at Estes.\n\n {¶10} Estes testified that she did not leave the area because they were still\n\nengaging with her, and she was not going to turn her back on them. She added that\n\nshe “wasn’t getting out of there that day without getting shot” and she “knew that from\n\nthe minute he answered the door with [the gun] in his hand.”\n\n {¶11} Warth continued to enter and exit the house. Eventually, Warth, gun in\n\nhand, walked to the end of the porch where Tyler was still arguing with Estes, who was\n\non the sidewalk.\n\n 3\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n {¶12} As Estes stood on the sidewalk, Tyler and Warth approached her. As\n\nthey got closer, Estes put her right hand in her right pocket and forcibly shook the\n\npocket, then took a fighting stance. Estes testified that she told them not to come any\n\ncloser. She denied having weapons or threatening to harm them because “that’s not\n\nwhat [she went there for.]”\n\n {¶13} Estes testified that she was begging Warth and Tyler to back off while\n\nshe was holding her sweatpants up as they “tend to sag a little bit * * * from the weight”\n\nof her cell phone in her pocket. She stated that she was getting herself ready in case\n\nTyler was going to hit her again because Tyler was “coming at [her].” Estes asserted\n\nthat she kept her fist balled up inside of the pocket of her sweatpants “[p]robably just\n\ntrying to scare them back.”\n\n {¶14} Tyler and Warth were within arm’s reach when Estes, still in a fighting\n\nstance, stepped off the sidewalk onto the lawn and lunged toward Warth and then\n\ntoward Tyler. Warth stepped back, pulled his gun from his left pocket, and switched it\n\nto his right hand. Warth shot Estes twice in the stomach as she lunged at Tyler. Estes’s\n\nhands were at her side—with both hands empty and visible—when Warth shot Estes.\n\n {¶15} After Warth shot Estes, Ashley attempted to pull her away from the\n\nscene. Warth, however, repeatedly pushed Estes down and kicked Estes in the chest\n\nwhile pointing the gun at both Estes and Ashley. Estes testified that she was certain\n\nthat “he was going to blow [Ashley’s] head off” because he kept pointing the gun at her,\n\nor that he would shoot Estes in the head after he “stomped [Estes’s] head.” Estes\n\ntestified that she thought she was going to die.\n\n {¶16} Estes suffered lacerations to her liver and kidney, damage to her L3-L4\n\nvertebrae, and she had an ileostomy bag for six months. Estes learned to walk again\n\n 4\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nthrough physical therapy, though she continued to suffer from nerve damage in her\n\nleg.\n\n Officers responded to the scene and interviewed Warth.\n\n {¶17} Officer Richard Coy, a responding officer, testified that he heard a\n\ngunshot as he was enroute to Warth’s home. When Coy arrived, Warth was holding a\n\nhandgun in his right hand, so Coy immediately drew his weapon and ordered Warth\n\nto drop his pistol. Instead of complying, Warth argued with Coy, stating that he had\n\nsurveillance cameras. Warth did not comply until Coy repeated the command several\n\ntimes. Coy testified that he saw Estes injured and lying on the ground but neither he\n\nnor the medics could get to her until Warth dropped his weapon and the scene was\n\nsecured.\n\n {¶18} Police searched Estes, Ashley, and the car in which they had arrived.\n\nThey found no weapons.\n\n {¶19} Detective Michael Webb responded to the scene, reviewed the video\n\nsurveillance, and interviewed Warth. During the interview, Warth referred to Estes as\n\n“[t]his girl or guy, whatever the fuck it is,” and stated that Estes kept hitting through\n\nthe screen door, tried to grab the storm door, and punched the window. Warth claimed\n\nthat he saw a knife handle in Estes’s pocket, asserted that his gun had been holstered,\n\ndenied knowing Estes before admitting that he knew her from school, and said that\n\nEstes kept lunging toward him before he “popped her.”\n\n {¶20} Webb stated that, while Warth may have thought Estes had a weapon,\n\nWarth “definitely show[ed] Ms. Estes that he had a weapon.” When asked by defense\n\ncounsel to concede that Warth only pointed the gun when he shot Estes, Webb\n\nresponded that he recalled Warth pointing the gun in the air to show Estes that he had\n\n 5\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nit. Warth agreed with Webb’s suggestion that he could have “simply locked the door\n\nand nothing would have occurred.” The front door was locked before Warth and Tyler\n\nwent outside to confront Estes.\n\n {¶21} Though Webb’s decision to charge Warth was based on Warth having\n\nthe ability to remain in his home instead of confronting Estes while she stood on a\n\npublic sidewalk and shooting her twice, he also testified that Warth did not have to go\n\nback into his home. The state’s closing argument echoed this testimony. Webb added\n\nthat the front door “would secure both” Warth and Estes, and Warth more so than\n\nEstes had the ability to retreat.\n\n The jury reached a guilty verdict on both counts of felonious assault.\n\n {¶22} The court instructed the jury that words alone do not justify the use of\n\nforce, “no matter how provocative.” The jury returned a guilty verdict on both counts\n\nand specifications.\n\n {¶23} During sentencing, the court pointed to comments that Warth made in\n\nhis police interview that “show[ed] an utter disdain for the victim on the same day.\n\nThat is part—that is part of the record.” The court also considered the seriousness\n\nfactors under R.C. 2929.12(B), stating that the injury suffered by Estes was grave as\n\nshe suffered serious physical harm as well as economic and psychological harm. As to\n\nthe R.C. 2929.12(C) factors, the court stated that Estes could have left the home, but\n\nher actions were not a sufficient provocation and Warth’s claims of self-defense and\n\nargument in mitigation were not sufficient under the law. The court noted that Warth\n\ndid not have a criminal record and that it must consider his status as a military veteran\n\nas he sustained injuries during his service and suffered from posttraumatic stress\n\nsyndrome (“PTSD”), though “the court clinic did not find [his PTSD] significant\n\n 6\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nenough to be diagnoseable.”\n\n {¶24} The trial court sentenced Warth to an indefinite term of nine to 12 years\n\nin the Ohio Department of Rehabilitation and Correction. The court merged the\n\nspecification in count two with the specification in count one and ordered the\n\nsentences to be served concurrently.\n\n II. Law and Analysis\n\n {¶25} Several of Warth’s assignments of error involve evidence to which\n\nWarth failed to object at trial. These asserted errors may only be reviewed for plain\n\nerror. State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294, ¶ 7. To\n\ndemonstrate plain error, Warth must show that an error occurred, that the error was\n\nplain, and that the error affected his substantial rights. State v. Wilks, 154 Ohio St.3d\n\n359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 52; see Crim.R. 52(B). A reviewing court\n\nshould not correct plain error other than in “exceptional circumstances and only to\n\nprevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d\n\n804 (1978), paragraph three of the syllabus.\n\n {¶26} We address Warth’s assignments of error out of order for ease of\n\ndiscussion.\n\n A. The state did not suggest that Warth should have retreated.\n\n {¶27} In his fourth assignment of error, Warth argues that the trial court erred\n\nto his prejudice by improperly admitting evidence of the possibility of retreat in a self-\n\ndefense case as it was contrary to law.\n\n {¶28} Warth points to multiple instances in which the state allegedly elicited\n\nevidence of the possibility of retreat. But Warth objected once, on the third day of trial,\n\nafter multiple instances of the alleged improper testimony occurred. Moreover,\n\n 7\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nWarth’s counsel elicited testimony that was similar to what Warth asserts the state\n\nimproperly elicited. Thus, the fourth assignment of error may only be reviewed for\n\nplain error. See Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294, at ¶ 7.\n\n {¶29} Under R.C. 2901.05, when a defendant presents evidence that tends to\n\nsupport that the defendant used force against another in self-defense or in defense of\n\nanother, the state must prove beyond a reasonable doubt that the defendant did not\n\nuse the force in self-defense or defense of another. R.C. 2901.05(B)(1); State v. Smith,\n\n1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 49. The state carries the burden\n\nto disprove one or more of the elements of self-defense in the use of deadly force: (1)\n\nthe defendant did not create the situation giving rise to the affray, or (2) the defendant\n\nhad a bona fide belief that he was in imminent danger of death or great bodily harm\n\nand his only means of escape from such a danger was to use such force. State v.\n\nMitchell, 1st Dist. Hamilton No. C-220471, 2023-Ohio-2604, ¶ 17. The test for a bona\n\nfide belief of imminent bodily harm is both objective and subjective: whether the\n\ndefendant’s belief is objectively reasonable and whether the defendant subjectively\n\nhad an honest belief of imminent bodily harm. State v. Moore, 9th Dist. Summit No.\n\n29581, 2023-Ohio-2864, ¶ 10.\n\n {¶30} The newly-amended “stand your ground” law, R.C. 2901.09(B),\n\nprovides that “a person has no duty to retreat before using force in self-defense,\n\ndefense of another, or defense of that person’s residence if that person is in a place in\n\nwhich the person lawfully has a right to be.” R.C. 2901.09(C) provides, “A trier of fact\n\nshall not consider the possibility of retreat as a factor in determining whether * * * a\n\nperson who used force in self-defense * * * reasonably believed that the force was\n\nnecessary to prevent injury, loss, or risk to life or safety.”\n\n 8\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n {¶31} But R.C. 2901.09(C) is not an absolute prohibition on introducing\n\nevidence involving the possibility of retreat. Rather, the statute only prohibits fact\n\nfinders from considering evidence involving the possibility of retreat to determine\n\nwhether the defendant’s belief that force was necessary was reasonable. Fact finders\n\nmay, however, consider retreat evidence to determine who was at fault in creating the\n\nsituation leading to the affray. State v. Hughkeith, 2023-Ohio-1217, 212 N.E.3d 1147,\n\n¶ 88 (8th Dist.) (“While a person no longer has a duty to retreat from a place he or she\n\nis lawfully permitted to be, there is no language in the amended statute to suggest a\n\ntrier of fact is precluded from considering whether the defendant was the initial\n\naggressor or whether the defendant attempted to withdraw from the situation when\n\ndetermining whether the defendant was at fault in creating the situation giving rise to\n\nthe affray. The narrow language of the amended statute does not place on triers of fact\n\nexpress restrictions on consideration of fault.”).\n\n {¶32} Warth takes issue with the state’s opening statement, which discussed\n\nWarth, who was armed, leaving the safety of his home to reengage Estes. But this\n\nstatement does not involve a duty to retreat. Moreover, the state clarified that Warth\n\nhad no duty to retreat back into his house or from his property.\n\n {¶33} Warth further asserts that Webb’s testimony was improper because he\n\ntestified to his understanding of the law as it related to his decision to arrest Warth,\n\nwhich was based on Warth leaving the safety of his home to reengage Estes after she\n\nhad left the property. Warth misconstrues this testimony as suggesting that Warth had\n\na duty to retreat. He is incorrect. Webb never suggested that Warth had a duty to\n\nretreat. Rather, the testimony focused on Warth choosing to advance toward Estes\n\n\n\n 9\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nafter she had left Warth’s property. In fact, Webb testified that Warth did not have a\n\nduty to retreat into the house when Estes lunged at him and Tyler.\n\n {¶34} And the trial court’s jury instructions clearly stated that Warth had no\n\nduty to retreat and that the jury was not to consider the possibility of retreat when\n\ndetermining whether Warth had a reasonable belief that force was necessary:\n\n Determining reasonable belief. In determining whether the defendant,\n\n in using force in self-defense, reasonably believed that the force was\n\n necessary to prevent injury, loss, or risk of life, or safety, you must not\n\n consider the possibility of retreat by the defendant.\n\n “No duty to retreat.” The defendant had no duty to retreat before using\n\n force in self-defense if the defendant was in a place which he lawfully\n\n had a right to be.\n\n {¶35} The trial court committed no error. We overrule Warth’s fourth\n\nassignment of error.\n\n B. Warth’s conviction was supported by sufficient evidence, and it did not run\n contrary to the weight of the evidence.\n\n {¶36} Warth argues his first three assignments of error together, asserting\n\nthat (1) his conviction was not supported by sufficient evidence, (2) the conviction ran\n\ncontrary to the weight of the evidence, and (3) the state failed to disprove Warth’s self-\n\ndefense claim beyond a reasonable doubt.\n\n {¶37} The Ohio Supreme Court has held that a self-defense claim is not an\n\nelement of the offense that must be proven by the state and, therefore, it is not subject\n\nto review for sufficiency of the evidence. State v. Messenger, Slip Opinion No. 2022-\n\nOhio-4562, ¶ 24-27. Thus, we overrule Warth’s first assignment of error. State v.\n\nWilson, 2d Dist. Clark No. 2021-CA-68, 2022-Ohio-3763, ¶ 60 (A self-defense claim\n 10\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nnaturally concedes commission of the offense.).\n\n {¶38} Warth’s second and third assignments of error require this court to\n\ndetermine whether the jury’s verdict was contrary to the manifest weight of the\n\nevidence regarding whether the state disproved Warth’s self-defense claim. See\n\nMessenger at ¶ 26. The weight of the evidence and the credibility of the witnesses are\n\nprimarily for the trier of fact. State v. Bailey, 1st Dist. Hamilton No. C-140129, 2019-\n\nOhio-4027, ¶ 63. In reviewing a challenge to the weight of the evidence, this court sits\n\nas a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton No. C-190107, 2020 Ohio\n\nApp. LEXIS 1184, *7 (Mar. 31, 2020), quoting State v. Thompkins, 78 Ohio St.3d 380,\n\n387, 678 N.E.2d 541 (1997). This court will not substitute its judgment for that of the\n\ntrier of fact on the issue of witness credibility unless it is patently apparent that the\n\ntrier of fact lost its way in arriving at its verdict. Bailey at ¶ 63.\n\n {¶35} Under R.C. 2901.05(B)(1), a person may act in self-defense, defense of\n\nanother, or defense of that person’s residence. As discussed above, when a defendant\n\npresents evidence that tends to support that the defendant used force in self-defense,\n\nthe state must disprove the accused’s self-defense claim beyond a reasonable doubt.\n\nR.C. 2901.05(B)(1).\n\n {¶36} Warth heavily relies on State v. Gillespie to support his self-defense\n\nclaim. State v. Gillespie, 172 Ohio App.3d 304, 2007-Ohio-3439, 874 N.E.2d 870 (2d\n\nDist.). In that case, when the victim came to Gillespie’s home to purchase drugs,\n\nGillespie noticed that the victim had a knife. Id. at ¶ 2. After Gillespie accused the\n\nvictim of stealing his property and went to retrieve a shotgun, the victim had fled. Id.\n\nat ¶ 3-4. Gillespie went to the victim’s mother’s home with the shotgun because he\n\nknew that the victim had a knife. Id. at ¶ 4-5. The two walked back to Gillespie and his\n\n 11\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\ngirlfriend’s house, but after the argument escalated, Gillespie’s girlfriend asked the\n\nvictim to leave. Id. at ¶ 6. The victim walked outside and Gillespie followed him. Id.\n\nThough the two offered different accounts of what happened next, Gillespie testified\n\nthat the victim had pulled a knife and began approaching him and Gillespie shot him\n\nin self-defense. Id. at ¶ 6-7. The trial court refused to instruct the jury on self-defense.\n\nId. at ¶ 14. The reviewing court reversed for a new trial, noting:\n\n Defendant’s own testimony demonstrates that he could have avoided any\n\n confrontation with Banks by simply remaining at home after Banks left\n\n Defendant’s home. Instead, Defendant retrieved a loaded shotgun, and\n\n then went looking for Banks, intending to retrieve his stolen property.\n\n When Defendant located Banks at his mother’s house, Defendant\n\n summoned Banks to come outside, and then escorted Banks back to\n\n Defendant’s house, where the argument over whether Banks took\n\n Defendant’s property continued and escalated. Simply put, Defendant’s\n\n own conduct renewed the confrontation with Banks which had\n\n concluded when Banks left Defendant’s home.\n\nId. at ¶ 16. The court determined, however, that the trial court should have given the\n\nself-defense instruction to the jury because reasonable jurors could have concluded\n\nthat the victim was at fault, noting, “That assumes that Banks attacked Defendant with\n\na knife, as Defendant claims.” Id. at 18.\n\n {¶37} Gillespie does not convince us to hold that the trial court’s judgment was\n\ncontrary to the manifest weight of the evidence. The issue in Gillespie was whether he\n\nhad presented evidence that tended to show that he acted in self-defense, entitling him\n\nto a self-defense jury instruction. Here, however, the trial court provided a self-defense\n\n 12\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\njury instruction. Thus, the question becomes whether the jury’s verdict was contrary\n\nto the manifest weight of the evidence in finding that the state proved beyond a\n\nreasonable doubt that Warth (1) was at fault in creating the situation giving rise to the\n\naffray; or (2) did not have an objectively reasonable or a subjective, honest belief that\n\nhe or his mother was in imminent danger of death or great bodily harm for which the\n\nuse of deadly force was his only means of escape. See Mitchell, 1st Dist. Hamilton No.\n\nC-220471, 2023-Ohio-2604, at ¶ 19, 24. The state need only disprove one of the self-\n\ndefense elements beyond a reasonable doubt. State v. Williams, 9th Dist. Summit No.\n\n29444, 2020-Ohio-3269, ¶ 10.\n\n At fault for creating the situation giving rise to the affray.\n\n {¶38} Although the laws involving self-defense claims were amended in 2019\n\nand 2020, affecting the state’s burden and the duty to retreat, the law continues to\n\nprohibit a person from provoking an assault or voluntarily entering an encounter and\n\nthen claiming a right of self-defense.\n\n {¶39} “Once the ‘person against whom the defensive force is used’ is no longer\n\neither on the defendant’s property or a threat, or when the defendant has succeeded\n\nin ‘expelling’ the other person, then the privilege under which defendant operated is\n\nover.” State v. Koehler, 8th Dist. Cuyahoga No. 100915, 2014-Ohio-3922, ¶ 23; see\n\nState v. Nichols, 4th Dist. Scioto No. 01CA2775, 2002 Ohio App. LEXIS 329 (Jan. 22,\n\n2002) (defendant followed the victim to provoke an altercation); State v. Sekic, 8th\n\nDist. Cuyahoga No. 95633, 2011-Ohio-3978, ¶ 15 (defendant cannot claim self-defense\n\nwhen he “willingly advanced toward a volatile situation” by confronting the victim to\n\ncontinue an earlier altercation); State v. Gaston, 8th Dist. Cuyahoga No. 98904, 2013-\n\nOhio-2331, ¶ 16-17 (even if the victim is the immediate aggressor, the defendant cannot\n\n 13\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nprovoke an assault or voluntarily enter an encounter and then claim a right of self-\n\ndefense after the victim predictably attacks); State v. Johnson, 8th Dist. Cuyahoga No.\n\n110673, 2022-Ohio-2577, ¶ 13 (defendant’s conduct could not support a self-defense\n\nclaim where undisputed evidence demonstrated that defendant waited for the victim\n\nto exit the building and approached the victim with the intent to rekindle the earlier\n\nfight).\n\n {¶39} Citing Gillespie, Warth contends that he cannot be found “at fault” for\n\narming himself with a weapon while on his property. He asserts that Estes planned to\n\ncome to his home to confront him, she “threatened to ‘stick’ [Warth] while concealing\n\nher hand in her pocket as if she had a weapon,” and “escalated this situation when she\n\ncame onto [Warth’s] private property and lunged at him and his mother.”\n\n {¶40} But Warth arming himself while on his property is not the issue. Rather,\n\nthe issue in this case is that Warth voluntarily reentered the dispute by pursuing Estes\n\nafter she had left his property. Warth’s choice to follow Estes escalated the situation.\n\n {¶41} The video shows that Estes did not attempt to enter Warth’s house. She\n\ndid not get into a fighting stance or lunge at Warth and his mother until they came\n\noutside after her. Warth was armed with a gun and came within a few feet of Estes.\n\nWarth told the investigators that Estes saw his gun when he first came downstairs.\n\nBecause Warth repeatedly came outside visibly holding a weapon, Estes knew that\n\nWarth had the gun, and she had a valid fear that he would use it on her.\n\n {¶42} The evidence supports a finding that Warth voluntarily reentered the\n\nconflict after the threat had been removed. Estes’s coming to the home to confront\n\nWarth about the sexual assault created an environment ripe for a physical\n\nconfrontation, but Estes was on the sidewalk creating no threat to Warth when he\n\n 14\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\ncame back outside with his gun.\n\n Bona fide fear of imminent death or great bodily harm.\n\n {¶43} As discussed above, a defendant’s belief that he was in immediate\n\ndanger of death or great bodily harm must be objectively reasonable, and the\n\ndefendant must have a subjective, honest belief that he was in such danger. Williams,\n\n9th Dist. Summit No. 29444, 2020-Ohio-3269, at ¶ 29. If the objective standard is\n\nmet, “the jury must determine if, subjectively, this particular defendant had an honest\n\nbelief that []he was in immediate danger.” State v. Thomas, 77 Ohio St.3d 323, 331,\n\n673 N.E.2d 1339 (1997). The state may disprove self-defense by demonstrating that\n\nthe defendant’s belief was not objectively reasonable or that he did not have an honest\n\nsubjective belief that he faced imminent death or great bodily harm. See Williams, at\n\n¶ 29.\n\n {¶44} “[W]ords alone will not constitute reasonably sufficient provocation to\n\nincite the use of deadly force in most situations.” State v. Becker, 5th Dist. Stark No.\n\n2022 CA 0069, 2023-Ohio-601, ¶ 26, quoting State v. Shane, 63 Ohio St.3d 630, 634-\n\n635, 590 N.E.2d 272 (1992).\n\n {¶45} The jury reasonably could conclude that Warth did not have a bona fide\n\nbelief that he or his mother was in danger of death or serious bodily harm.\n\n {¶46} Regarding whether Warth had an objectively reasonable belief of an\n\nimminent threat of death or serious bodily harm, Tyler told police that she did not\n\nbelieve that Estes had a weapon. Warth and Tyler were safely behind a locked door.\n\nEstes never “beat” or kicked the door or attempted to gain entry to the home. After\n\nTyler smacked her in the forehead through the locked screen door, Estes began to walk\n\naway, and Tyler closed the front door on Estes. Finally, Estes’s hands were out of her\n\n 15\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\npockets when Warth fired his gun.\n\n {¶47} Even if Warth’s belief were objectively reasonable, a jury reasonably\n\ncould have found that Warth lacked an honest subjective belief that he or his mother\n\nwere in imminent danger of death or serious bodily harm. Warth entered and exited\n\nfrom the house multiple times, once unarmed, and once left his mother alone outside\n\nwith Estes. If he were honestly afraid of Estes attacking him or his mother, he would\n\nnot have left his mother alone with Estes or confronted her unarmed.\n\n {¶48} Moreover, Warth’s comments to police, which were played to the jury,\n\nsuggested that he did not fear her. In describing how he felt threatened by Estes, Warth\n\nsaid, “[S]he kept saying, I’ll stick you. Come on. Put that gun down. Come out here. I’ll\n\nstick you. I’ll stick you right now. And I was like, what are you gonna stick me with, a\n\nfucking what? Your dildo? What?” Warth also said three separate times that Estes\n\nthreatened to “come back” to harm him and his family, which does not indicate an\n\nimminent threat of bodily harm or death.\n\n {¶49} Finally, Warth lied to police about Estes pounding and kicking at the\n\ndoor, in saying he did not know who Estes was, and about seeing a knife handle in\n\nEstes’s pocket. The jury could have believed that these lies to police undermined\n\nWarth’s credibility, which could have caused the jury to disbelieve his assertion that\n\nhe honestly feared Estes would kill or seriously injure him or his mother.\n\n {¶50} Reversing a conviction and granting a new trial should only be done in\n\n“exceptional cases in which the evidence weighs heavily against the conviction.” State\n\nv. Pagdett, 1st Dist. Hamilton Nos. C-200327 and C-200238, 2021-Ohio-2905, ¶ 21.\n\nThis is not one of those exceptional cases. The jury reasonably found that the state\n\nproved lack of self-defense beyond a reasonable doubt. We overrule Warth’s first,\n\n 16\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nsecond, and third assignments of error.\n\n C. Webb’s testimony was admissible.\n\n {¶51} In his fifth assignment of error, Warth argues that the trial court erred\n\nby permitting Webb to express his opinion as to whether Warth acted in self-defense.\n\nWarth did not object to this testimony, thus, we review it for plain error. The testimony\n\nto which Warth objects on appeal is as follows:\n\n WEBB: And Mr. Warth and his mother continue to go towards her. You\n\n know Mr. Warth told us several times that he was in fear, yet, he was\n\n going forward.\n\n Those two things didn’t make sense. There was a confrontation at the\n\n corner of the property where Mr. Warth and his mother approached Ms.\n\n Estes, and, you know, she made some – some movements as if she was\n\n going to fight.\n\n You know, what we took into consideration was it was reasonable for\n\n Ms. Estes to think that there was an imminent threat to her. Mr. Warth\n\n stated that he felt that she may have had something, but never seen it.\n\n However, Mr. Warth did definitely show Ms. Estes that he had a\n\n weapon.\n\n So at that point where she was on the public sidewalk, and she was\n\n approached by two individuals, was it reasonable for her to fear that she\n\n was in imminent danger?\n\n We felt the imminent threat was more for her to feel fear at that point.\n\n I asked Mr. Warth if – you know, you could have simply locked the door\n\n and nothing would have occurred?\n\n 17\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n He did agree with that statement. So the conclusion was – is that we felt\n\n Mr. Warth was in violation of felonious assault at that point.\n\n {¶52} Warth offers no plain-error argument, other than, “Even under the plain\n\nerror standard, reversal is required. This is an obvious violation of the law that\n\nadversely affected Warth’s substantial rights.” This conclusory statement does not\n\nprovide this court any argument about why admitting this evidence was plainly\n\nerroneous. While under Crim.R. 52(B), this court has the discretion to correct plain\n\nerrors affecting a defendant’s substantial rights, “the accused bears the burden of\n\nproof to demonstrate plain error on the record.” State v. Rogers, 143 Ohio St.3d 385,\n\n2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. When an appellant fails to develop a plain-error\n\nanalysis, the appellate court need not create one on the appellant’s behalf and may\n\ndecline to reach the merits of the claim. State v. Chapman, 9th Dist. Summit No.\n\n28626, 2018-Ohio-1142, ¶ 23. For this reason, Warth’s fifth assignment of error fails.\n\n {¶53} But even if Warth had offered a plain-error argument, a trial court does\n\nnot commit reversible error by permitting police officers to testify about the process\n\nof their investigation. See State v. Fhiaras, 8th Dist. Cuyahoga No. 97740, 2012-Ohio-\n\n3815, ¶ 38 (testimony involving a police officer’s role in deciding whether his\n\ninvestigation should continue, and whether that investigation should continue to focus\n\non both a particular offense and a specific suspect, was permissible); Evid.R. 701; see\n\nalso State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 108 (1st Dist.) (testimony of a\n\ndetective was rationally based on his training and personal experience in child-abuse\n\ncases, and aided the trier of fact in determining the child-victim’s credibility).\n\n {¶54} Webb did not give an opinion about whether Warth acted in self-\n\ndefense. Rather, Webb testified that it was reasonable for Estes to feel fear when Tyler\n\n 18\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nand Warth—who was armed—approached her on the sidewalk. Webb also testified\n\nabout the portion of the police interview where he asked Warth if he could have stayed\n\nbehind the locked door and that Warth agreed. This was informing the jury about his\n\ninvestigation. It was not expert testimony that Warth did not act in self-defense.\n\n {¶55} We overrule Warth’s fifth assignment of error.\n\n D. The trial court did not commit plain error by admitting other-acts evidence.\n\n {¶56} In his sixth assignment of error, Warth argues that the court improperly\n\nadmitted evidence of sexual misconduct because it permitted Estes to testify to her\n\nbelief that he molested her daughter.\n\n {¶57} Other-acts evidence is admissible when the acts form a part of the\n\n“immediate background of the act” as part of the charged crime. State v. David, 1st\n\nDist. Hamilton No. C-210227, 2021-Ohio-4004, ¶ 16.\n\n {¶58} Warth did not object to this testimony and fails to make a plain-error\n\nargument other than, “Even though not objected to at trial, this error also adversely\n\naffected Warth’s substantial rights, requiring reversal even under the plain error\n\nstandard.”\n\n {¶59} But had Warth properly preserved this issue and made more than a\n\nconclusory plain-error argument, the accusation about Warth molesting Estes’s\n\ndaughter forms part of the “immediate background of the act.” The allegation explains\n\nwhy Estes confronted Warth and why both Warth and Tyler were angry. The evidence\n\nwas admissible. We overrule Warth’s sixth assignment of error.\n\n E. There was no prosecutorial misconduct regarding the availability of retreat.\n\n {¶60} In his seventh assignment of error, Warth argues that the state engaged\n\nin misconduct that prejudicially affected his substantial rights when it argued and\n\n 19\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nelicited testimony regarding Warth approaching Estes, being the aggressor, and failing\n\nto retreat. He contends the state presented improper opinion evidence regarding\n\nwhether Warth acted in self-defense and as to prior bad acts.\n\n {¶61} For the same reasons discussed in the previous assignments of error,\n\nthe state did not engage in misconduct and, therefore, there was no error. We overrule\n\nWarth’s seventh assignment of error.\n\n F. Warth was not denied due process.\n\n {¶62} In his eighth assignment of error, Warth argues that his due-process\n\nrights were violated when the police corrupted the audio on the surveillance footage.\n\nWarth contends that, had the audio not been corrupted, then the jury would have been\n\nable “to hear Estes’ actual tirade and threats to kill Warth and his mother,” which was\n\nexculpatory.\n\n {¶63} “[T]he suppression by the prosecution of evidence favorable to an\n\naccused upon request violates due process where the evidence is material either to\n\nguilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”\n\nBrady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To establish\n\na Brady violation, Warth first must demonstrate that the state withheld evidence.\n\nState v. Hawk, 10th Dist. Franklin No. 21AP-265, 2021-Ohio-4533, ¶ 20.\n\n {¶64} “A defendant may allege a Brady violation based on loss or destruction\n\nof exculpatory evidence; however, in those cases the evidence must have actually\n\nexisted at some point.” State v. Black, 10th Dist. Franklin No. 22AP-180, 2022-Ohio-\n\n3119, ¶ 20, fn. 2. Warth must establish a Brady violation based on more than his\n\n“unsupported assertion” that the audio “could have existed without some evidence to\n\n\n\n 20\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nsuggest that such [audio] actually did exist.” See State v. Blade, 6th Dist. Lucas No. L-\n\n22-1091, 2023-Ohio-658, at ¶ 23.\n\n {¶65} Here, Warth testified that his surveillance cameras record audio, that\n\nthere was audio on previous videos when he had used the cameras before, and he had\n\nnot removed any audio from the surveillance of the shooting.\n\n {¶66} But Warth did not assert that there had been audio on the videos played\n\nduring trial. Indeed, there was no evidence that any audio existed or that police\n\ndamaged the recording. Warth cannot establish a Brady violation and, therefore, we\n\noverrule Warth’s eighth assignment of error.\n\n G. The trial court did not err in precluding Warth’s witness from testifying.\n\n {¶67} In his ninth assignment of error, Warth argues that the trial court erred\n\nby precluding him from presenting a witness who would have testified to seeing a\n\nFacebook post where Estes threatened Warth, which had since been removed.\n\n {¶68} This court recognizes that trial courts have wide discretion in the\n\nadmission or exclusion of evidence. State v. Neal, 1st Dist. Hamilton No. C-210166,\n\n2022-Ohio-1290, ¶ 29. We review such decisions for an abuse of discretion. Id. To find\n\nan abuse of discretion, this court must determine that the trial court’s decision was\n\nunreasonable, arbitrary, or unconscionable. State v. Ofori, 1st Dist. Hamilton Nos. C-\n\n220367, C-220368, C-220369, and C-220370, 2023-Ohio-1460, ¶ 14, quoting\n\nBlakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). We will not\n\nreverse an evidentiary ruling absent a showing that an incorrect ruling affected a\n\nparty’s substantial rights. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70\n\nN.E.3d 508, ¶ 181.\n\n\n\n 21\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n {¶69} A party claiming error involving the trial court’s exclusion of evidence\n\nmust show that the party’s substantial rights were affected and that the party informed\n\nthe trial court of the substance of the evidence by proffer or by context of the questions\n\nasked. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 113;\n\nEvid.R. 103(A)(2). “The purpose of a proffer is to assist the reviewing court in\n\ndetermining, pursuant to Evid.R. 103, whether the trial court’s exclusion of evidence\n\naffected a substantial right of the appellant.” State v. Gibson, 1st Dist. Hamilton No.\n\nC-220176, 2023-Ohio-1154, ¶ 33, quoting In re Walker, 162 Ohio App.3d 303, 2005-\n\nOhio-3773, 833 N.E.2d 362, ¶ 37 (11th Dist.). A proffer cannot be vague—it must\n\nprovide “specific information,” rather than general descriptions. State v. Robinson, 3d\n\nDist. Allen No. 1-19-79, 2020-Ohio-4880, ¶ 32-33; Hallisy v. Hallisy, 11th Dist.\n\nGeauga No. 2022-G-0048, 2023-Ohio-2923, ¶ 20.\n\n {¶70} At trial, the court asked if Warth intended to call any witnesses.\n\nRelevant to the substance of the Facebook post, Warth’s counsel stated, “There was\n\ntestimony by Ms. Estes where I confronted her with a statement that she had posted\n\nto Facebook messages looking to harm Mr. Warth. * * * We plan to call a witness who\n\nwill say that she had seen this and that there [were] threats of harm.” There was no\n\nother information proffered.\n\n {¶71} Warth provided to the trial court no specific information about the\n\nevidence he wished to elicit. Instead, he gave only a general description: that there\n\nwere “threats of harm.” There was nothing suggesting the nature of the threats, when\n\nthe threats were made, what kind of harm Estes allegedly threatened, or if the post\n\ncontained any specific threats.\n\n {¶72} Warth’s failure to proffer the witness’s testimony renders this court\n\n 22\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nunable to review the proposed testimony to determine whether its exclusion affected\n\nWarth’s substantial rights. Accordingly, Warth forfeited this issue on appeal. We\n\noverrule Warth’s ninth assignment of error.\n\n H. Warth was not denied the effective assistance of counsel.\n\n {¶73} In his tenth assignment of error, Warth argues that he was denied the\n\nright to the effective assistance of counsel where his attorney failed to object to the\n\nimpermissible testimony and evidence presented by the prosecution.\n\n {¶74} In any ineffectiveness case, a particular decision must be directly\n\nassessed for reasonableness, applying a heavy measure of deference to counsel’s\n\nlitigation strategy. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80\n\nL.Ed.2d 674 (1984). Under Strickland as interpreted by Ohio courts, attorneys are\n\npresumed competent and reviewing courts must refrain from second-guessing\n\nstrategic, tactical decisions and presume that counsel’s performance falls within a wide\n\nrange of reasonable legal assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651\n\nN.E.2d 965 (1995).\n\n {¶75} To succeed on an ineffective-assistance-of-counsel claim, an appellant\n\nmust show that (1) counsel’s performance was deficient, and (2) the deficient\n\nperformance deprived the appellant of a fair trial. Strickland at 687. “A defendant’s\n\nfailure to satisfy one prong of the Strickland test negates a court’s need to consider the\n\nother.” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).\n\n {¶76} “To warrant reversal, ‘(t)he defendant must show that there is a\n\nreasonable probability that, but for counsel’s unprofessional errors, the result of the\n\nproceeding would have been different. A reasonable probability is a probability\n\n\n\n 23\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nsufficient to undermine confidence in the outcome.’ ” State v. Bradley, 42 Ohio St.3d\n\n136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 694.\n\n {¶77} Warth fails to cite to any part of the record where he believes that\n\ncounsel should have objected. Indeed, his entire argument is one sentence: “Should\n\nthis Court determine that Warth waived any of his claimed errors, or waived all but\n\nplain error, due to his counsel’s failure to object, Warth asserts that he was denied the\n\neffective assistance of counsel.”\n\n {¶78} App.R. 12(A)(2) provides that “[t]he court may disregard an assignment\n\nof error presented for review if the party raising it fails to identify in the record the\n\nerror on which the assignment of error is based or fails to argue the assignment\n\nseparately in the brief, as required under App.R. 16(A).” App.R. 16(A)(7) provides that\n\nan appellant must provide an argument and “the reasons in support of the contentions,\n\nwith citations to the authorities, statutes, and parts of the record on which appellant\n\nrelies.”\n\n {¶79} This court declines to address Warth’s argument. See State v.\n\nCovington, 1st Dist. Hamilton No. C-190731, 2021-Ohio-2907, ¶ 25. We overrule\n\nWarth’s tenth assignment of error.\n\n I. The trial court properly considered the sentencing factors under R.C. 2929.12.\n\n {¶80} In his twelfth assignment of error, Warth argues that the trial court\n\nerred by imposing a prison sentence that was not supported by the sentencing factors\n\nin R.C. 2929.12, and that all of the factors under R.C. 2929.12(E) were present.\n\n {¶81} We review criminal sentences under R.C. 2953.08(G)(2), which allows\n\nappellate courts to increase, reduce, or otherwise modify a sentence, or to vacate the\n\nsentence and remand the matter for resentencing if it clearly and convincingly finds\n\n 24\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nthat either the record does not support the sentencing court’s findings under relevant\n\nstatutory provisions, or the sentence is otherwise contrary to law. State v. Conley, 1st\n\nDist. Hamilton No. C-200144, 2021-Ohio-837, ¶ 20.\n\n {¶82} But “R.C. 2953.08(G)(2)(a) clearly does not provide a basis for an\n\nappellate court to modify or vacate a sentence if it concludes that the record does not\n\nsupport the sentence under R.C. 2929.11 and 2929.12 because * * * R.C. 2929.11 and\n\n2929.12 are not among the statutes listed in the provision.” State v. Jones, 163 Ohio\n\nSt.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 31. A trial court’s findings under R.C.\n\n2929.11 and 2929.12 are not reviewable under R.C. 2953.08(G)(2)(b) because “an\n\nappellate court’s conclusion that the record does not support a sentence under R.C.\n\n2929.11 or 2929.12 is not the equivalent of a conclusion that the sentence is ‘otherwise\n\ncontrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 34.\n\n {¶83} R.C. 2929.11 and 2929.12 are not fact-finding statutes and, absent an\n\naffirmative demonstration to the contrary, we will presume that the trial court\n\nconsidered them. State v. Mimes, 1st Dist. Hamilton No. C-200122, 2021-Ohio-2494,\n\n¶ 9.\n\n {¶84} The trial court adequately considered the overriding principles and\n\npurposes of felony sentencing under R.C. 2929.11 and 2929.12. We overrule Warth’s\n\ntwelfth assignment of error.\n\n J. Indefinite sentencing is constitutional in Ohio.\n\n {¶85} In his thirteenth assignment of error, Warth suggests that the indefinite\n\nsentence imposed was unconstitutional. But the Supreme Court of Ohio recently\n\ndetermined that the indefinite sentencing scheme under the Reagan Tokes Law is\n\nconstitutional. State v. Hacker, Slip Opinion No. 2023-Ohio-2535. Therefore, we\n\n 25\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\noverrule Warth’s thirteenth assignment of error.\n\n K. The two counts of felonious assault should have been merged.\n\n {¶86} In his eleventh assignment of error, Warth argues that the trial court\n\nviolated the principles of double jeopardy by failing to merge the counts of felonious\n\nassault. Warth notes that the court announced that counts one and two were to be\n\nmerged, but the sentencing entry does not reflect that. The state concedes this error.\n\nWe sustain Warth’s eleventh assignment of error and remand the cause to the trial\n\ncourt to merge counts one and two.\n\n L. The doctrine of cumulative error does not apply.\n\n {¶87} In his final assignment of error, Warth argues that he was denied the\n\nright to a fair trial under the cumulative effect of the errors committed at trial. “Under\n\nthe doctrine of cumulative error, a conviction may be reversed if the cumulative effect\n\nof errors deemed separately harmless is to deny the defendant a fair trial.” State v.\n\nCook, 1st Dist. Hamilton No. C-140118, 2014-Ohio-4900, ¶ 15.\n\n {¶88} Because we have determined that the trial court’s only error was the\n\nfailure to merge Warth’s counts—which happened after the trial concluded—there was\n\nno cumulative error and Warth was afforded a fair trial. Thus, we overrule Warth’s\n\nfourteenth assignment of error.\n\n III. Conclusion\n\n {¶89} With the exception of the eleventh assignment of error, we overrule\n\nWarth’s assignments of error. We remand the cause to the trial court to merge counts\n\none and two for sentencing. We affirm the trial court’s judgment in all other respects.\n\n\n Judgment affirmed in part, reversed in part, and cause remanded.\n\nZAYAS, P.J., and BERGERON, J., concur.\n 26\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n\nPlease note:\n\n The court has recorded its entry on the date of the release of this opinion.\n\n\n\n\n 27\n\f\n\nNow, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.\n\n- Related Segments:\n- Supporting Segments:"},"Answer":{"kind":"list like","value":["5","7","9","10","11","13","14","15","22","24","28","29","32","33"],"string":"[\n \"5\",\n \"7\",\n \"9\",\n \"10\",\n \"11\",\n \"13\",\n \"14\",\n \"15\",\n \"22\",\n \"24\",\n \"28\",\n \"29\",\n \"32\",\n \"33\"\n]"}}},{"rowIdx":332,"cells":{"Domain":{"kind":"string","value":"Law"},"ID":{"kind":"string","value":"9882255"},"Context":{"kind":"string","value":"[SEGMENT 1]\nThis opinion is subject to revision before final\n publication in the Pacific Reporter\n UT 33\n\n IN THE\n SUPREME COURT OF THE STATE OF UTAH\n STATE OF UTAH,\n Petitioner,\n v.\n BREVAN BRINGHURST BAUGH,\n Respondent.\n No. 20220272\n Heard December 13, 2023\n Filed August 15, 2024\n On Certiorari to the Utah Court of Appeals\n First District, Cache County\n The Honorable Angela Fonnesbeck\n No. 181100862\n Attorneys:\n Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,\n Salt Lake City, for petitioner\n Emily Adams, Freya Johnson, Melissa Jo Townsend, Bountiful,\n for respondent\n CHIEF JUSTICE DURRANT authored the opinion of the Court, in\n which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,\n JUDGE BEAN, and JUDGE HOWELL joined.\nHaving recused themselves, JUSTICE HAGEN and JUSTICE POHLMAN\ndo not participate herein; DISTRICT COURT JUDGE JOSEPH BEAN and\n DISTRICT COURT JUDGE ANTHONY HOWELL sat.\n\n CHIEF JUSTICE DURRANT, opinion of the Court:\n INTRODUCTION\n ¶1 In 2018, Brevan Bringhurst Baugh was charged with two\ncounts of aggravated sexual abuse of a child. At trial, the STATE v. BAUGH\n Opinion of the Court\nprosecution introduced evidence of three instances of alleged\nabuse, 1 with the instances distinguished based on the location in\nwhich they occurred. But the two counts charged were\ndistinguished based on date rather than location. And in the State’s\nclosing argument, it told the jurors they could use “any two” of the\nthree alleged instances of abuse to fulfill the elements of the\ncharged counts. The jury convicted Baugh on one count and\nacquitted him on the other.\n ¶2 Baugh appealed. He argued there was a risk that the jury\ndid not unanimously agree on which instance of abuse supported\nthe count on which he was convicted. Baugh also contended that\nhis counsel rendered constitutionally ineffective assistance by\nfailing to request jury instructions that would have properly\ninstructed the jury on its constitutional duty to be unanimous as to\neach element of each convicted count. The court of appeals agreed\nwith Baugh and vacated his sentence.\n ¶3 We granted the State’s certiorari petition. We affirm.\n BACKGROUND\n ¶4 Between 2012 and 2014, Brevan Bringhurst Baugh lived at\nhis family home (Nibley Home) with his daughter Sasha 2 and her\nmother. In April 2014, Baugh and Sasha’s mother commenced\ndivorce proceedings, and Baugh moved into a one-bedroom\napartment (Falls Apartment). Sasha and her siblings visited Baugh\nwhile he was living at Falls Apartment. Several years later, Sasha\nrevealed to her therapist that Baugh had abused her, and her\ntherapist reported the allegations to the police.\n ¶5 During the investigation into the abuse, a detective asked\nSasha to call Baugh while the detective listened in. The detective’s\nintent was to get Baugh to confess to the crimes. While on the call,\nBaugh resisted admitting to the allegations and suggested that\nSasha was not remembering things correctly. He eventually\napologized to Sasha but remained adamant that the apology was\n__________________________________________________________\n 1 We use “alleged abuse” here because, although Baugh was\nconvicted of one count of aggravated sexual abuse of a child and\nacquitted of one count, we cannot know on which instance of\ntouching the jury based its conviction. Therefore, when referring to\nthe separate instances of touching, we use the term “alleged.”\n 2 A pseudonym.\n Cite as: [CITATION]\n Opinion of the Court\nonly for inadvertently exposing Sasha to pornography and for her\nwalking in on him while he was masturbating. When pressed,\nBaugh acknowledged that if Sasha remembered abuse occurring,\nhe wouldn’t deny it. But he insisted that he had no recollection of\nabusing Sasha, blaming his failure to remember on his marijuana\nuse at the time of the alleged acts.\n ¶6 After this confrontation call, the detective brought Baugh\nin for questioning. Baugh restated that he and Sasha didn’t “have\nthe same recollection of the events.” But he did admit to exposing\nSasha to pornography and that she had once seen him\nmasturbating. The detective also asked whether Baugh had been\nabusing Sasha “for years.” Baugh responded, “For years[?] Okay\nno. No.” The detective then asked when was the last time he had\nabused Sasha. Baugh responded that it was at Nibley Home.\n ¶7 On July 9, 2018, Baugh was charged with two counts of\naggravated sexual abuse of a child, a first-degree felony, in\nviolation of Utah Code subsection 76-5-404.1(4). The first count was\nbased on alleged conduct that occurred on or about 2012. The\nsecond count was based on alleged conduct that occurred on or\nabout 2014.\n ¶8 At trial, Sasha testified that Baugh made her touch his\npenis three times between 2012 and 2014. Sasha stated that during\neach of these alleged incidents, Baugh put Sasha’s hand on his\npenis and moved it up and down until “white stuff came out.”\nSasha testified that the first two alleged incidents occurred while\nBaugh and Sasha were lying on Baugh’s bed in Nibley Home. The\nfinal alleged incident occurred when Sasha was twelve and Baugh\nhad moved out of Nibley Home and into Falls Apartment.\n ¶9 Baugh countered Sasha’s testimony by testifying that none\nof the alleged acts occurred. He insisted that, until Sasha’s\nconfrontation call, he had no suspicion of the accusations. While\nBaugh did admit to accidentally exposing Sasha to pornography\nand further admitted that she had walked in on him while he was\nmasturbating, he remained adamant that he never touched Sasha\nand he never had Sasha touch him. He also insisted that the\ncomments he made during the phone call and subsequent\ninterrogations were not confessions to having abused Sasha. Baugh\ntestified that his answer to the final question the detective asked\nhim during the interrogation was describing the last time he\nexposed Sasha to pornography. And when questioned about the\nother statements he made on the confrontation call, he stated that\n\n====== End of Part ====== STATE v. BAUGH\n Opinion of the Court\nhe did not outright deny the allegations because he wanted to\nvalidate Sasha’s feelings.\n ¶10 During closing argument, the prosecution stated that the\ntwo counts charged could be “fulfilled with . . . any two of those\nincidents that [Sasha] described, those can be the elements of both\nof these counts.” Defense counsel did not object to this statement\nnor request more specific unanimity instructions.\n ¶11 The jury was then instructed. Regarding both counts of\nsexual abuse of a child, the jury was told that it must find:\n (1) the Defendant, Brevan Baugh, (2) occupied a\n position of special trust in relation to Sasha, and\n (3) intentionally, knowingly, [or] recklessly touched\n the anus, buttocks, genitalia or breast of Sasha or\n otherwise took indecent liberties with her or caused\n her to take indecent liberties with him, (4) with the\n intent to arouse or gratify the sexual desire of any\n person regardless of the sex of any participant, and\n (5) at the time of the offenses Sasha was under the age\n of fourteen.\nThe jury was also given a general unanimity instruction: “Because\nthis is a criminal case, every single juror must agree with the verdict\nbefore the Defendant can be found guilty or not.”\n ¶12 Ultimately, the jury acquitted Baugh of Count One and\nconvicted him of Count Two. Baugh appealed the conviction. He\nargued that his counsel provided ineffective assistance in failing to\nrequest more specific unanimity instructions.\n ¶13 Article I, section 10 of the Utah Constitution contains the\nUnanimous Verdict Clause, which reads, “In criminal cases the\nverdict shall be unanimous.” To render a valid verdict under that\nclause, the jury must be unanimous on all elements of the charged\ncrime. 3 Jury instructions must adequately convey this unanimity\nrequirement to the jury. 4\n\n__________________________________________________________\n 3 [CITATION]\n 4 See [CITATION] (explaining\nthat jury instructions must “fairly instruct the jury on the law\napplicable to the case,” and must “accurately convey the law”\n(cleaned up)).\n Cite as: 2024 UT 33\n Opinion of the Court\n ¶14 In reviewing Baugh’s appeal, the court of appeals applied\nthese principles and reasoned that, much like in its recent decision\nin [CITATION] Baugh’s counsel’s performed deficiently by\nfailing to request jury instructions that instructed the jury to be\nunanimous on which specific act supported which specific charge. [CITATION]\nIt further reasoned that these ambiguous instructions could have\nled some jurors to convict Baugh based on one alleged instance of\nabuse and others to convict on another alleged instance, in violation\nof the unanimity requirement. [CITATION] Because of that risk, the court of\nappeals held that Baugh was prejudiced by defense counsel’s\ndeficient performance and vacated his conviction. [CITATION] We granted the\nState’s petition for certiorari.\n STANDARD OF REVIEW\n ¶15 The State challenges the court of appeals’ determination\nthat Baugh’s counsel provided constitutionally ineffective\nassistance by failing to request more specific unanimity\ninstructions. “[W]e review the court of appeals’ decision for\ncorrectness.” [CITATION]\n ANALYSIS\n ¶16 An ineffective assistance of counsel claim has two\nelements. “First, the defendant must show that counsel’s\nperformance was deficient.” [CITATION] “Second, the defendant must show\nthat the deficient performance prejudiced the defense.” [CITATION] “[F]ailure\nto establish either prong is fatal to an ineffective assistance of\ncounsel claim.” [CITATION]\n ¶17 The State argues that neither prong of this test is satisfied.\nFirst, the State contends that Baugh’s counsel’s performance was\nreasonable because Unanimous Verdict Clause caselaw regarding\n\n[SEGMENT 2]\n__________________________________________________________\n [CITATION] (cleaned up).\n STATE v. BAUGH\n Opinion of the Court\nhow a jury must be instructed on unanimity is ambiguous. Second,\nthe State argues that the court of appeals erred in its prejudice\nanalysis by failing to analyze whether there was a reasonable\nprobability that a jury would have convicted Baugh absent\ncounsel’s deficient performance. The appellate court’s error, the\nState contends, is significant because Baugh did not carry his\nburden of showing that any alleged deficient performance\nprejudiced him.\n ¶18 We disagree with the State on both points.\n I. BAUGH’S COUNSEL PERFORMED DEFICIENTLY BY FAILING TO\n REQUEST A MORE DETAILED UNANIMITY INSTRUCTION\n ¶19 To constitute deficient performance, counsel’s\nrepresentation must fall “below an objective standard of\nreasonableness.” Reasonableness is determined by “prevailing\nprofessional norms.” Whether “counsel’s actions can be\nconsidered strategic plays an important role in our analysis” of\nwhether counsel’s performance was deficient, but lack of strategic\nadvantage is not conclusive in determining whether counsel’s\nperformance was unreasonable. “A reviewing court must always\nbase its deficiency determination on the ultimate question of\nwhether counsel’s act or omission fell below an objective standard\nof reasonableness.”\n ¶20 The State challenges the court of appeals’ deficient\nperformance analysis, claiming that the court of appeals\nmisapprehended Unanimous Verdict Clause caselaw. In its\nanalysis, the court of appeals relied on [CITATION] to determine that\nBaugh’s counsel’s performance was deficient. The court reasoned\nthat, in [CITATION], it had correctly understood Unanimous Verdict\nClause caselaw. In that case, the court dictated that “[w]here\nneither the charges nor the elements instructions link each count to\na particular act, instructing the jury that it must agree as to which\ncriminal acts occurred is critical to ensuring unanimity on each\n __________________________________________________________\n [CITATION] (cleaned up).\n [CITATION] (citing\n[CITATION]).\n Cite as: 2024 UT 33\n Opinion of the Court\nelement of each crime.” 18 And because neither the charges, the jury\ninstructions, nor the State’s presentation of evidence in Baugh’s\ncase linked specific conduct to each count, the court of appeals held\nthat Baugh’s counsel’s failure to request more specific unanimity\ninstructions constituted deficient performance. 19\n ¶21 But the State argues that the caselaw regarding the kind of\njury instructions necessary to ensure unanimity was not clear when\n[CITATION] was decided. The court of appeals had, according to the State,\nincorrectly treated [CITATION]—a plurality opinion—as\nestablished precedent and had extended its narrow holding past\nwhat this court intended. Without [CITATION] as established\nprecedent, the State argues that the court of appeals’ reasoning falls\napart because any remaining binding precedent was either not\ndispositive or inapplicable.\n ¶22 We now begin our analysis with our own review of the\nrelevant caselaw on the Unanimous Verdict Clause in article I,\nsection 10 of the Utah Constitution.\n ¶23 The Unanimous Verdict Clause requires that “the [jury’s]\nverdict shall be unanimous” in all criminal cases. 21 It is not enough\nthat the jury find the defendant “guilty of some crime.” 22 For\nexample, a verdict would not be unanimous “if some jurors found\na defendant guilty of a robbery committed on December 25, 1990,\nin Salt Lake City, but other jurors found him guilty of a robbery\ncommitted January 15, 1991, in Denver, Colorado, even though all\njurors” agreed that he was guilty of robbery. 23 The jury must be\nunanimous “as to a specific crime and as to each element of the\ncrime” to comply with the Unanimous Verdict Clause. 24 Neither\nparty disputes this premise.\n ¶24 Although our caselaw is clear that the jury must be\nunanimous as to each element of each count of a crime, it is less\n__________________________________________________________\n 18 [CITATION]\n 21 UTAH CONST. art. I, § 10.\n 22 [CITATION] (cleaned up).\n 23 [CITATION] (cleaned up).\n 24 [CITATION] (plurality opinion).\n STATE v. BAUGH\n Opinion of the Court\nclear how that unanimity requirement must be conveyed to the jury\nin multiple-act cases like Baugh’s, where a defendant is charged\nwith multiple counts of a crime with identical elements. 25\n ¶25 In [CITATION], the defendant was charged with one count of\nsexual abuse of a child. 26 The prosecution presented evidence of\nseveral acts, any one of which could satisfy the touching element of\nthe charge.27 The unanimity instruction given to the jury stated that\nthere was “no requirement that the jurors be unanimous about\nprecisely which act occurred or when or where the act or acts\noccurred.” 28 On appeal, we held that it was plain error for the trial\ncourt to give these instructions, as they could have led the jurors to\nbelieve that it was acceptable to render a non-unanimous verdict.29\nBut [CITATION] did not establish clear precedent on multiple-act cases\nbecause the relevant portion of the opinion was a plurality. 30\n ¶26 Our next case on the issue, [CITATION], provided no\nmore clarity regarding the form jury instructions should take to\nensure a unanimous verdict.31 In that case, the defendant\nchallenged jury instructions that presented two alternative theories\nfor finding aggravating factors, without mentioning unanimity. 32\n__________________________________________________________\n 25 We note that we establish in [CITATION]—which is\npublished simultaneously with this case—how unanimity must be\nconveyed to the jury in multiple-act cases in which charges are not\nconnected to specific conduct in the jury instructions. [CITATION] was charged with\nmultiple offenses, but the solitary sexual abuse charge is the only\none relevant to our analysis.\n 27 Id. ¶ 5.\n 28 Id. ¶ 65.\n 29 Id. ¶¶ 65, 68 (plurality opinion); id. ¶ 70 (Howe, C.J.,\nconcurring in part and dissenting in part); id. ¶ 79 (Zimmerman, J.,\nconcurring in part and dissenting in part).\n 30 See id. ¶¶ 67, 68 (Russon, J., concurring in the result); id. ¶ 70\n(Howe, C.J., concurring in part and dissenting in part); id. ¶ 79\n(Zimmerman, J., concurring in part and dissenting in part).\n 31 [CITATION].\n 32 Id. ¶¶ 15–16.\n Cite as: 2024 UT 33\n Opinion of the Court\nIn holding that it was not plain error for the court to give these jury\ninstructions, we stated that the instructions created the risk of only\nslight confusion as to the unanimity required by the jury.[CITATION] The\nState argues that [CITATION] establishes that the lack of a specific\nunanimity instruction only ever creates a risk of “slight confusion”\nfor a jury. But that reads too much into this court’s opinion.\n ¶27 The [CITATION] court stated that it was “unconvinced that the\nslight confusion that may have arisen from the wording of the\ninstructions used [at trial] present[ed] a reasonable likelihood of a\nmore favorable result for defendant.” [CITATION] Such language indicates a\ncase- and fact-specific holding, rather than a general\npronouncement, and we decline to extend this holding beyond that\ncase.\n ¶28 In [CITATION], which had not been decided at the time of\nBaugh’s trial, the court of appeals surveyed the state of the law\nregarding jury unanimity instructions in multiple-act cases. [CITATION] In\n[CITATION], the defendant was charged with six counts of aggravated\nsexual abuse of a child. [CITATION] But, as in [CITATION], the jury instructions did\nnot connect each count to a separate instance of touching. [CITATION] The jury\nwas given a general unanimity instruction informing it that all\njurors must be unanimous regarding the guilt of the defendant. [CITATION]\nDuring deliberations, the jury asked twice for clarification “on how\nthe counts work,” and asked in particular how to “weigh each\ncount when they are all the same.” [CITATION] The court referred the jury\nback to its instructions. [CITATION] The jury convicted [CITATION] on two counts\nand acquitted him on the rest. [CITATION]\n STATE v. BAUGH\n Opinion of the Court\n ¶29 The court of appeals reviewed the jury’s verdict to\ndetermine whether counsel was ineffective for failing to request\nmore specific unanimity instructions. 42 It reasoned that the state of\nthe law “should have been readily apparent” based on our holding\nin [CITATION]: “[w]here neither the charges nor the elements\ninstructions link each count to a particular act, instructing the jury\nthat it must agree as to which criminal acts occurred is critical to\nensuring unanimity on each element of each crime.” 43 This blanket\nstatement fails to recognize the reduced weight that [CITATION] must\nbe given as a plurality opinion. Because the relevant portion of\n[CITATION] did not represent the opinion of the majority of the court,\nthe court of appeals could rely only on that case’s outcome as\nbinding precedent, not its reasoning. 44\n ¶30 Although the court of appeals may have overstated the\nweight of the holding in [CITATION], that case was still the most\nrelevant precedent at the time and thus an indicator to reasonable\ncounsel of the range of appropriate actions. Relevant case law is one\nof several factors to consider in assessing the reasonableness of\ncounsel’s performance. And that counsel’s performance was\nobjectively unreasonable because not requesting specific unanimity\ninstructions effectively lowered the State’s burden of proof was\nanother factor. Taken together, these two factors still support the\ncourt of appeals’ conclusion that Alires’s counsel performed\ndeficiently despite the court’s overstatement of [CITATION] as binding\nprecedent.\n ¶31 Having reviewed the state of the law regarding the\nstandard for instructing a jury on unanimity, we turn to Baugh’s\ncase. Despite the unsettled law in this area, it is clear in Baugh’s\ncase that the jury was not adequately instructed.\n ¶32 Baugh was charged with sexual abuse of a child. Under\nUtah Code subsection 76-5-404.1(2)(a), a person is guilty of sexual\nabuse of a child if “the actor: . . . [1] touches, whether over or under\n__________________________________________________________\n 42 [CITATION] (citing [CITATION] (plurality\nopinion)).\n\n[SEGMENT 3]\n 44 See [CITATION] (explaining that\nplurality opinions “do not constitute binding precedent); see also\n[CITATION] (stating that a\nplurality opinion’s analysis “is not binding”).\n Cite as: 2024 UT 33\n Opinion of the Court\nthe clothing, the buttocks or pubic area of a child; . . . the breast of\na female child; or . . . otherwise takes indecent liberties with a\nchild,” and “[2] the actor’s conduct is with intent to . . . cause\nsubstantial emotional or bodily pain to any individual; or . . .\narouse or gratify the sexual desire of any individual.” Caselaw is\nclear that the jury must be unanimous as to each element of each\ncount of that crime. [CITATION] In practice, this means that the jury must\nagree on which incident of touching satisfies each count. If the jury\ndoes not agree on which act relates to each count, then its verdict\nviolates the Unanimous Verdict Clause.\n ¶33 The jury in Baugh’s case was given a general unanimity\ninstruction that read, “Because this is a criminal case, every single\njuror must agree with the verdict before the defendant can be found\nguilty or not guilty.” Trial counsel did not request a more specific\nunanimity instruction.\n ¶34 The circumstances of Baugh’s case created an\nunacceptable risk of a non-unanimous verdict, and a reasonable\nattorney would have recognized that risk. Baugh was charged with\ntwo counts of aggravated sexual abuse of a child for alleged acts\noccurring in 2012 and 2014. During his trial, the State presented\nevidence to the jury of three instances of touching. But the jury was\nnot told when these alleged instances occurred, only where the\nalleged instances occurred. The State presented evidence of two\ninstances of touching that occurred at Nibley Home and one that\noccurred at Falls Apartment.\n ¶35 The State’s presentation of evidence created tension\nbetween the evidence and the counts, which were distinguished\nonly by date: one count for 2012 and one count for 2014. Because\nBaugh lived in both Nibley Home and Falls Apartment in 2014, that\ntension left room for ambiguity. And that ambiguity left room for\nnon-unanimity. The jurors could agree that touching occurred in\n2014 but disagree as to whether the specific instance of touching\noccurred at Nibley Home or Falls Apartment. And did the jury’s\nverdict did not eliminate the problem. The jury acquitted Baugh on\nthe 2012 count but convicted him on the 2014 count, leaving open\nthe possibility that the jurors may have disagreed on which specific\ninstance of touching the State had proven.\n\n___________________________________________________________\n [CITATION]\n STATE v. BAUGH\n Opinion of the Court\n ¶36 The State also declined to connect specific instances of\ntouching with a count. [CITATION] We have noted that “courts in Utah and\nelsewhere have determined that a unanimity problem can be\nremedied by prosecutorial election.”[CITATION] That is, the harm that can\nflow from a lack of a specific unanimity instruction might, in some\ncases, be mitigated if the prosecutor elects, in closing argument, to\nspell out for the jury which alleged actions correspond to which\ncharged counts. The absence of prosecutorial election here further\nindicates that reasonable counsel would have been concerned\nabout unanimity because there was nothing to mitigate the harm of\nerroneous jury instructions.\n ¶37 The presence of a legal error “does not necessarily mean\nthat defense counsel’s failure to object to the error amounted to\ndeficient performance.” [CITATION] And there is a “wide range of reasonable\nprofessional assistance.” [CITATION] But taking each of the above\nopportunities for jury confusion together, no reasonable attorney\nwould have failed to request more specific unanimity instructions.\n ¶38 Baugh’s counsel was presented with three instances of\ntouching that were not specifically attached to the two counts\ncharged. And in the State’s closing argument, it told the jury that it\ncould fulfill the counts with any two of the alleged instances of\nconduct. This statement suggested to the jury that it could\n__________________________________________________________\n [CITATION] In criminal cases in which the State has not specified which\nacts it relied on to support each charged count, it may elect to do so\nduring trial. See [CITATION]. We call this\ndecision prosecutorial election. See [CITATION]. For example, in this case, the two counts of sexual\nabuse were not connected to specific acts when charged. They were\ndistinguished only by approximate date. The State, in its closing\nargument, could have elected to attach one of the three alleged acts\nto a specific count instead of telling the jury that it could choose\nfrom any of the three alleged acts to satisfy the elements of either\ncount. That election might have mitigated the harm flowing from\nBaugh’s counsel’s failure to ask for a specific unanimity instruction.\nBut the State declined to make an election, and Baugh, as we\ndescribe below, was harmed by his counsel’s failure to act.\n [CITATION]\n Cite as: 2024 UT 33\n Opinion of the Court\nimpermissibly mix-and-match the instances of touching when\nreaching its verdict. The high risk for non-unanimity was clear.\n ¶39 Further, there were no circumstances in this case that\nmitigated the risk of a non-unanimous verdict. The evidence for\neach of the instances of touching was fairly equal in persuasive\nforce. 50 So the evidence was not overwhelmingly stronger for any\none instance such that any reasonable jury could have only\nconvicted on that count.\n ¶40 And there was no strategic advantage to not requesting\nmore specific unanimity instructions. Doing so would not have\ndirected the jury to any especially damaging evidence, and failing\nto do so effectively lowered the State’s burden of proof for the\ntouching element. 51\n ¶41 Because the risk of a non-unanimous verdict would have\nbeen clear to reasonable counsel, Baugh’s counsel’s failure to\nrequest more specific unanimity instructions was objectively\nunreasonable. Therefore, his counsel’s performance was deficient.\n II. BAUGH’S COUNSEL’S DEFICIENT PERFORMANCE\n PREJUDICED BAUGH\n ¶42 To prevail on an ineffective assistance of counsel claim, the\ndefendant must show that “counsel’s errors actually had an\nadverse effect on the defense,” 52 and that there is a “reasonable\nprobability that, but for [those] . . . errors, the result of the\nproceeding would have been different.” 53 “A reasonable\nprobability is a probability sufficient to undermine confidence in\nthe outcome.” 54 It is insufficient “for the defendant to show that the\n__________________________________________________________\n 50 See [CITATION].\n 51 See [CITATION] (explaining that failing to\nrequest more specific unanimity instructions in the face of a risk of\na non-unanimous verdict “effectively lower[s] the State’s burden of\nproof”).\n 52 [CITATION] (cleaned up).\n 53 [CITATION]; see also [CITATION] (explaining Strickland’s\nprejudice standard).\n 54 [CITATION]; see also [CITATION]\n(quoting [CITATION]).\n STATE v. BAUGH\n Opinion of the Court\nerrors had some conceivable effect on the outcome of the\nproceeding.” 55 And “a verdict or conclusion only weakly\nsupported by the record is more likely to have been affected by\nerrors than one with overwhelming record support.” 56\n ¶43 The State argues that the court of appeals failed to consider\nwhether the jury would have convicted absent defense counsel’s\nerror. In the State’s view, the court of appeals completed only a\nportion of the Strickland prejudice analysis: whether the jury\nconvicted Baugh because of counsel’s deficient performance.\n ¶44 While we acknowledge the court of appeals may not have\nsignposted its inquiry as clearly as possible, we are satisfied that\nthe court conducted the requisite analysis. And we agree that\ncounsel’s deficient performance prejudiced Baugh.\n ¶45 The court of appeals began its analysis by correctly\nsummarizing Strickland’s prejudice standard. [CITATION] The court then\nconsidered the totality of the evidence before the jury. Sasha\ntestified about three instances of abuse—two occurring at Nibley\nHome and one at Falls Apartment—but distinguished these\ninstances only by the location. [CITATION] And “[t]he jury instructions\ndistinguished the counts, not by location but based on the date of\nthe alleged abuse—2012 for count one and 2014 for count two.” [CITATION]\nBut in 2012, Baugh lived at both Nibley Home and Falls\nApartment. [CITATION]\n ¶46 So the jury received evidence of the alleged instances of\ntouching based only on location but was expected to connect these\ninstances of touching to counts distinguished only by date. And\nalthough only those instances taking place at Nibley Home could\nhave been connected to the first count, any of the three alleged\ninstances could have been connected to the 2014 count because\nBaugh lived at both Nibley Home and Falls Apartment in 2014.\nGiven that the jury acquitted Baugh on the 2012 count and\n\n[SEGMENT 4]\n__________________________________________________________\n [CITATION]\n Cite as: 2024 UT 33\n Opinion of the Court\nconvicted him on the 2014 count, its verdict didn’t resolve the risk\nthat some jurors convicted based on an act that took place at Nibley\nHome, while others convicted based on an act that occurred at Falls\nApartment.\n ¶47 Next, the court of appeals considered Baugh’s\n“confessions” and his explanation of them at trial. During the\ninvestigation, Sasha called Baugh to confront him about the\nabuse. [CITATION] The State argues that Baugh admitted to the abuse during\nthe call saying, “if you say I did it, then—then I’m sure I did,” and\n“I’m not going to deny it.” Later, during interrogation, the detective\nasked Baugh if he had been abusing Sasha for years, to which he\nreplied, “For years[?] Okay. No.” The State paints that as another\nadmission. And when asked when he last abused Sasha, Baugh\nsaid it was “at the Nibley [Home].” A third admission, according\nto the State.\n ¶48 But, as the court of appeals noted, Baugh’s statements\nduring the confrontation call and subsequent interrogations do not\namount to an unequivocal confession. [CITATION] During the confrontation\ncall, interrogation, and at trial, Baugh maintained that he had not\nabused Sasha. And he offered testimony at trial that his\n“admissions” were simply an attempt to validate his daughter’s\nfeelings despite her “getting things mixed up.”\n ¶49 Finally, the court of appeals considered the State’s closing\nargument, where the prosecutor told the jurors that the “two counts\ncan be fulfilled with . . . any two of those experiences” described at\ntrial and that “any two of those incidents . . . can be the elements of\nboth of these counts.” [CITATION]\n ¶50 Reviewing the evidence as a whole, the court of appeals\nconcluded that its “confidence in the outcome ha[d] been\nundermined.” [CITATION] Because the jury was instructed on the counts\nbased on the dates of the alleged instances but was only given\nevidence of the counts based on the location of those instances, the\ncourt reasoned, there was “a reasonable probability that the jurors\n\n__________________________________________________________\n [CITATION]\n STATE v. BAUGH\n Opinion of the Court\ndid not agree on which act of alleged abuse supported each\ncount.” [CITATION]\n ¶51 And, relevant to the State’s claim that the court of appeals\ndid not consider whether the jury would have come to a different\nconclusion absent counsel’s errors, the appellate court explained\nthat it was not confident that the jury would have come to the same\nconclusion if it had received more specific unanimity instructions. [CITATION]\nAnd it noted that the evidence presented was not overwhelmingly\nstronger for either of the two counts. [CITATION] Further, despite some\nevidence that Baugh had confessed, his explanation of his\nstatements created the possibility that a reasonable jury could have\nfound his “confession” unconvincing. [CITATION] Therefore, the court of\nappeals concluded, it could not “identify one charge on which [it\ncould] say with confidence [the jury] would have convicted.” [CITATION] As\nsuch, the court found “a reasonable probability that but for defense\ncounsel’s” failure to request more specific unanimity instructions,\n“the proceeding’s outcome would have differed.” [CITATION]\n ¶52 The court of appeals applied the correct standard in its\nanalysis of the prejudicial effect of counsel’s error, considered the\ntotality of the evidence presented at trial, and correctly concluded\nthat there was a reasonable probability of a different outcome had\ndefense counsel requested more specific unanimity instructions.\n CONCLUSION\n ¶53 In order to succeed on his claim of ineffective assistance of\ncounsel, Baugh had to show that his counsel’s performance was\ndeficient and that the deficient performance prejudiced him. The\ncourt of appeals correctly concluded that Baugh made those\nshowings. Because the risk of non-unanimity was significant, and,\ngiven the state of the law regarding jury unanimity as to elements,\nBaugh’s counsel performed deficiently by failing to request more\nspecific unanimity instructions. Further, there was a reasonable\n__________________________________________________________\n [CITATION]\n Cite as: [CITATION]\n Opinion of the Court\nprobability that the jury would not have convicted Baugh had the\nerror not occurred. Therefore, we hold that Baugh’s counsel was\nineffective and affirm the court of appeals’ vacation of Baugh’s\nconviction.\n \n2024 UT App 79\n\n THE UTAH COURT OF APPEALS\n STATE OF UTAH,\n Appellee,\n v.\n LISA YVONNE OREILLY,\n Appellant.\n Opinion\n No. 20230104-CA\n Filed May 23, 2024\n Sixth District Court, Panguitch Department\n The Honorable Mandy Larsen\n No. 181600010\n Nicolas C. Wilde and Trevor J. Lee,\n Attorneys for Appellant\n Barry Huntington and Jerry Jaeger,\n Attorneys for Appellee\n JUDGE GREGORY K. ORME authored this Opinion, in which\n JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.\nORME, Judge:\n¶1 Lisa Yvonne Oreilly appeals her convictions for possession\nof methamphetamine, possession of marijuana, and possession of\ndrug paraphernalia. Oreilly argues she was denied her\nconstitutional right to counsel and, thus, is entitled to a new trial.\nOrielly’s challenge is based on the assertion that her trial counsel\nlabored under an actual conflict of interest because counsel\nrepresented both her and her codefendant, Michael Thompson.\nWe agree with Oreilly that because of the joint representation she\nis not required to show prejudice under the traditional ineffective\nassistance analysis, but we deny the requested relief because State v. Oreilly\n\nOreilly has not carried her burden of showing the existence of an\nactual conflict of interest.\n\n BACKGROUND 1\n¶2 Acting on a tip, a Utah Highway Patrol trooper and\nsergeant located a vehicle parked in front of a rest stop bathroom\nin February 2018. The vehicle was empty and, according to the\nsergeant, “parked crooked, unusual.” Less than a minute after the\nofficers arrived, Oreilly and Thompson emerged from the\nbathroom. Both officers described Oreilly and Thompson as\nnervous and seemingly under the influence of drugs.\n¶3 The officers approached and made contact with Oreilly\nand Thompson. Thompson was arrested when a driver license\ncheck revealed two outstanding arrest warrants. After Oreilly\nsaid she did not have a valid driver license and the officers\ndetermined neither Oreilly nor Thompson owned the vehicle, the\ndecision was made to have the vehicle towed.\n¶4 At some point during the encounter, a trained K-9 handler\nwith the Garfield County Sheriff’s Office arrived at the scene and\nwalked his dog around the vehicle. The dog alerted to the\npresence of drugs. The officers then conducted a physical search\nof the vehicle and found marijuana, marijuana grinders, a\nmarijuana pipe, a baggie containing methamphetamine, a clear\ncontainer containing methamphetamine, and syringes containing\nmethamphetamine. All of the items were in areas accessible to\nboth the driver and the passenger.\n\n1. “On appeal, we recite the facts from the record in the light most\nfavorable to the jury’s verdict and present conflicting evidence\nonly as necessary to understand issues raised on appeal.” [CITATION]\n\n 20230104-CA\n\n UT App 79 [CITATION]\n\n¶5 Thompson told the trooper that all the seized evidence\nbelonged to him. Oreilly told the sergeant and the trooper that the\npipe and a grinder belonged to her. She also informed the trooper\nthat the substance in the syringes was methamphetamine, not\nheroin, stating, “I can guarantee you that whatever you did find,\nit ain’t heroin. I could guarantee you that it’s probably\nmethamphetamine.” The trooper observed and took pictures of\nneedle marks and bruising on Oreilly’s arms. The trooper later\nreviewed a video recorded while Oreilly and Thompson were\nseated in his patrol car. The video showed Oreilly acknowledging\nto Thompson that she knew used syringes were present in the\nvehicle and stating that she had disposed of a syringe in the rest\nstop bathroom. The video also showed Oreilly and Thompson\ndiscussing who should take responsibility for the seized evidence,\nwith Oreilly stating, “So, I don’t know what to do and this is\ngonna sound really shitty but maybe you should take the blame\nand then I’ll bail you out babe.” Later in the recording, Oreilly\nsaid to Thompson, “If it goes all on me, then I can’t get you out. . . .\nIs it selfish of me to make you take all the rap? Was that selfish of\nme?”\n¶6 Oreilly was subsequently charged with possession of\nmethamphetamine, possession of marijuana, and possession of\ndrug paraphernalia. Thompson was charged in a separate\ninformation with the same crimes. At their initial appearance,\nOreilly and Thompson were provided with a copy of the\napplicable information and advised of their right to counsel. Both\ndefendants asked the court to continue the initial appearances\nuntil they could hire an attorney. After noting that Oreilly’s case\nand Thompson’s case were assigned to two different judges, the\ndistrict court stated, “I think just pretrial, we could probably keep\nthe cases together.”\n\n[SEGMENT 5]\n¶7 In June 2018, an attorney appeared before the district court\non behalf of both Oreilly and Thompson. When the court asked\nwhether the two matters should be heard together, the attorney\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nresponded, “Yeah. It’s the same facts and we can consolidate\nthem[.]” The cases were then set for a preliminary hearing, but\nOreilly later waived her right to a preliminary hearing. The\nattorney represented Oreilly at her arraignment and entered a\nplea of not guilty on her behalf.\n¶8 The attorney subsequently attended several hearings on\nvarious matters involving Oreilly’s case. Nothing in the\ntranscripts of these hearings indicates that the district court ever\ninquired into the propriety of the attorney’s joint representation\nof Oreilly and Thompson. Nor does the record show that the\nattorney or Oreilly raised any concerns with the court stemming\nfrom the attorney’s joint representation. In fact, at a pretrial\nconference in January 2020, it was the attorney who asked the\ncourt to “consolidate the two cases and try them together.” In May\n2020, the attorney again told the district court he had “no\nobjection to consolidating the cases and just having one jury and\none trial for both cases.” In June 2021, the attorney indicated he\nand his clients were “comfortable” with a joint trial. Oreilly was\npresent for this hearing. She did not express any concerns with\nthe attorney’s joint representation, and the district court did not\ninquire into the possibility of a conflict of interest.\n¶9 Oreilly and Thompson were tried together in August 2022.\nNeither defendant was incarcerated at the time of trial and neither\nappeared for the one-day trial. The State presented, inter alia, the\ntestimony of the trooper and the sergeant describing their\nencounter with Oreilly and Thompson, as summarized above.\nThe attorney for Oreilly and Thompson did not call any witnesses\nfor the defense, but during closing argument, he highlighted that\nthe vehicle in which the drugs and paraphernalia were found was\nnot owned by Oreilly or Thompson, implying the items could\nbelong to the owner. The attorney also questioned whether the\nofficers acted properly in video-recording Oreilly and Thompson\nwhile they sat in the trooper’s patrol car.\n\n\n[CITATION] State v. Oreilly\n\n¶10 The jury found Oreilly and Thompson guilty of all charged\ncrimes, and the court later imposed sentences for each. Oreilly\nthen filed this timely appeal.\n\n ISSUE AND STANDARD OF REVIEW\n¶11 Oreilly seeks reversal of her convictions based on a claim\nof ineffective assistance of counsel. The Sixth Amendment to the\nUnited States Constitution guarantees a criminal defendant the\nright to effective assistance of counsel. 2 See [CITATION]. “When a claim of ineffective\nassistance of counsel is raised for the first time on appeal, there is\nno lower court ruling to review and we must decide whether the\ndefendant was deprived of the effective assistance of counsel as a\nmatter of law.” [CITATION].\n¶12 Typically, a defendant challenging her conviction based on\nineffective assistance of counsel must demonstrate that counsel’s\nperformance was deficient and that she was prejudiced by the\ndeficient performance. See [CITATION]. Here, however, Oreilly’s ineffective assistance claim is\nbased on allegations that her attorney’s joint representation of her\nand her codefendant gave rise to a conflict of interest. Absent\nspecial circumstances not present in this matter, see [CITATION],\nan appellant asserting an\nineffective assistance claim based on an actual conflict of interest\n\n2. Oreilly also raises an ineffective assistance of counsel claim\nunder Article I, Section 12 of the Utah Constitution. Because she\ndoes not differentiate between her federal and state claims, we\nfollow the lead of the Utah Supreme Court and “consider only the\nclaim based on the federal Constitution.” [CITATION].\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\narising from joint representation can prevail without\ndemonstrating prejudice if she can show the alleged conflict\nactually existed and that it adversely affected her attorney’s\nperformance, [CITATION].\n¶13 “To establish an actual conflict of interest, [an appellant]\nmust show a conflict that affected counsel’s performance—as\nopposed to a mere theoretical division of loyalties.” [CITATION]\n(quotation simplified). A conflict arising from joint representation affects counsel’s\nperformance if “arguments or actions allegedly omitted would\nlikely have been made by other counsel” and there was no\n“tactical reason (other than the asserted conflict) for the\nomission.” [CITATION]\n\n ANALYSIS\n I. A Preliminary Matter\n¶14 As an initial matter, the State argues Oreilly cannot\nproceed under the theory that an actual conflict existed because\nshe did not timely object to the attorney’s joint representation.\nThis argument is based on a misreading of both United States\nSupreme Court and Utah precedent.\n¶15 In [CITATION], the United\nStates Supreme Court addressed a claim that trial counsel was\nconstitutionally ineffective because he simultaneously\nrepresented three codefendants. [CITATION]. Counsel repeatedly\nalerted the trial court to a “probable risk of a conflict of interests”\narising from his joint representation. [CITATION]. The trial\ncourt, however, failed to appoint new counsel or inquire into the\nnature and scope of the alleged conflict. [CITATION]. Under these\ncircumstances, the Supreme Court held that the defendant was\nentitled to a presumption the conflict resulted in ineffective\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nassistance of counsel and the “automatic” reversal of his\nconviction. [CITATION]. Two years later, in [CITATION], the Supreme Court refused to extend its automatic\nreversal ruling to a situation where the alleged conflict arising\nfrom joint representation was not brought to the attention of the\ntrial court. See [CITATION]. The Supreme Court held that a\npresumption of an actual conflict and accompanying automatic\nreversal of a conviction are appropriate only when the trial court\nfails to provide “a defendant who objects to multiple\nrepresentation” with “the opportunity to show that potential\nconflicts impermissibly imperil his right to a fair trial.” [CITATION].\nOtherwise, “[u]nless the trial court knows or reasonably should\nknow that a particular conflict exists, the court need not initiate\nan inquiry.” [CITATION].\n¶16 In [CITATION], this court\napplied the holdings in Holloway and Cuyler to a situation in\nwhich the defendant and his codefendant were represented by\ntwo attorneys from the same public defender office. See [CITATION].\nThis court noted that the Sixth Amendment does not\nrequire a trial court to question the propriety of joint\nrepresentation sua sponte unless the court knows or reasonably\nshould know that a conflict exists because of the joint\nrepresentation. [CITATION]. As the Supreme Court stated in\n[CITATION], “[a]bsent special circumstances, . . . trial courts may\nassume either that multiple representation entails no conflict or\nthat the lawyer and his clients knowingly accept such risk of\nconflict as may exist.” [CITATION]. See also [CITATION] (“[W]here counsel makes\nno objection at trial, the trial court may presume that no improper\nconflict due to joint representation is present.”). Instead, the\npresumption of ineffective assistance and the automatic reversal\nremedy established by Holloway are triggered only when the trial\ncourt knew or should have known of a potential conflict and\nfailed to investigate. [CITATION]. One such situation—\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nthe one present in Holloway—is when a trial court fails to take\nadequate steps after a potential conflict is brought to its attention\nby an “objecting defendant.” [CITATION] at 73 (“The [CITATION] court explained\nthat the [CITATION] presumption of prejudice from a possible\nconflict of interest is only appropriate in cases where the trial\ncourt did not provide an objecting defendant with an opportunity\nto show that potential conflicts impermissibly imperil his right to\na fair trial.”) (quotation simplified).\n¶17 The State misreads these cases as precluding a criminal\ndefendant from raising an ineffective assistance claim based on a\nconflict of interest arising from joint representation without first\nshowing she made a timely objection to the joint representation—\na situation not present here. The State overlooks our cogent\nsummary of the rule applicable to joint representation set out in\n[CITATION]:\n [W]here . . . the potential conflict is brought to the\n attention of the trial court by counsel before or\n during the early stages of trial, the trial court must\n take adequate steps to resolve the issue. If a trial\n court fails to investigate such a potential conflict of\n interest, we presume prejudice and reverse. A\n defendant who fails to bring a potential conflict to\n the attention of the trial court must show on appeal\n that an actual conflict of interest existed which\n adversely affected his or her lawyer’s performance.\n[CITATION] at 922–23 (citations omitted).\n\n[SEGMENT 6]\n¶18 Thus, under our precedent, Oreilly’s failure to object to the\nattorney’s joint representation does not preclude her from raising\nan ineffective assistance claim based on allegations of a conflict of\ninterest arising from joint representation. Rather, her failure to\ntimely object means that she does not benefit from an automatic\nreversal of her conviction. Instead, she is required to show the\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nexistence of “an actual conflict which affected . . . her attorney’s\nperformance,” and if she does make such a showing, she need not\nalso “demonstrate prejudice.” [CITATION] (emphasis added). Therefore, Oreilly is not required to show\nprejudice under the traditional ineffective assistance analysis, but\nshe can prevail on the particular ineffective assistance claim she\nhas raised only if she meets her appellate burden of showing that\nan actual conflict adversely affected her attorney’s\nrepresentation. 3\n II. No Actual Conflict\n¶19 Having determined that Oreilly’s claim of ineffective\nassistance is properly before this court, we must address whether\nshe has met her burden of showing the existence of an actual\nconflict of interest that affected her counsel’s performance. “In\norder to show an actual conflict of interest existed, a defendant\nmust point to specific instances in the record to suggest an actual\nconflict or impairment of his or her interests. There is no violation\nwhere the conflict is irrelevant or merely hypothetical; there must\nbe an actual, significant conflict.” [CITATION]\n¶20 In [CITATION], this court considered whether the appellant met\nhis burden of showing an actual conflict where there was a\n“substantial disparity” in the evidence incriminating him and his\njointly represented codefendant. [CITATION] This court borrowed its\nsubstantial-disparity analysis from the Colorado Supreme Court’s\nopinion in [CITATION] See [CITATION]\n3. Oreilly does not claim she is entitled to the presumption her\ncounsel was ineffective because the trial court failed to investigate\na potential conflict of which it knew or should have known. See\n[CITATION]\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\ndefendants were charged with widely differing criminal activity\nand “the great bulk of the evidence introduced at trial was\ndirected toward [one defendant’s] alleged culpability.” [CITATION]\nBecause of counsel’s joint representation, he was unable to\nhighlight the evidentiary disparities to the jury. [CITATION]\nUnder these circumstances, the Colorado Supreme Court held\nthat the appellant met his burden of showing an actual conflict.\n[CITATION] The Armstrong court explained the reasoning behind\npermitting a defendant to demonstrate an actual conflict by\nshowing a substantial disparity in the evidence, stating that an\nactual conflict existed because “[f]or one defendant, the disparity\nshould be emphasized to demonstrate the weakness of the case\nagainst and lesser culpability of that defendant. For the other\ndefendant, any disparity in the quantity or quality of the evidence\nshould be ignored or diminished.” [CITATION]\n¶21 But this court reached the opposite conclusion in Webb on\nvery different facts. There, two defendants represented by two\npublic defenders from the same office were charged with\naggravated robbery. [CITATION] We held that there\nwas no substantial disparity in the evidence notwithstanding the\nfact that there was eyewitness testimony identifying only one of\nthe two defendants “as the robber in the store.” [CITATION] We noted\nthat (1) there was testimony the codefendant was directly\ninvolved in the crime and (2) the jointly represented defendants\nboth testified at trial and “gave entirely consistent, corroborative\ntestimony” supporting their joint defense that other individuals\nwere culpable for the criminal conduct charged against them. [CITATION]\nFor these reasons, we concluded that “counsel’s loyalty was not\ndivided between [two codefendants] with actual conflicting\ninterests.” [CITATION]\n¶22 We revisited the substantial disparity issue in State v.\nNewman, [CITATION] We again\ndistinguished Armstrong on the basis that the jointly represented\ndefendants in Newman “were charged essentially with the same\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\ncrimes” whereas in [CITATION] the defendants were charged with\ndiffering levels of participation in a single criminal episode. [CITATION]. Thus, we concluded, “the likelihood of a conflict” was\nnot present. [CITATION].\n¶23 Oreilly argues there was a disparity in the weight of the\nevidence between the methamphetamine charges brought against\nher and Thompson because Thompson voluntarily admitted to\nlaw enforcement that all the items found in the vehicle belonged\nto him, but she admitted only to possession of the marijuana pipe\nand grinder. 4 According to Oreilly, voluntary admissions are\namong the strongest forms of evidence available to prosecutors\nand Thompson’s admission is sufficient to establish the required\nsubstantial disparity. But [CITATION], and [CITATION] all stand\nfor the proposition that the substantial disparity inquiry is not\nfocused solely on the quantum of evidence presented against each\ncodefendant. As we stated in [CITATION], a disparity in evidence is\nnot substantial unless the differing weight raises the “likelihood\nof a conflict” because, for example, the codefendants were\ncharged with different conduct as in [CITATION]. See [CITATION]. That is not\nthe situation here.\n¶24 Oreilly and Thompson were charged with the same three\ncrimes, and they presented the same defense at trial—attempting\nto attribute the drugs and paraphernalia to the owner of the\nvehicle. These circumstances are on the same footing as those in\n[CITATION], where the jointly represented defendants were both\ncharged with the same crime—aggravated robbery—and they\npursued the same defense of placing the blame on third parties.\nSee [CITATION]. Similarly, in [CITATION], the three\n4. Because we conclude Oreilly is not entitled to relief on her\nineffective assistance claim even if we consider Thompson’s\nadmission to law enforcement, it is not necessary to resolve the\nState’s argument that Thompson’s statement was inadmissible\nhearsay that Oreilly’s attorney could not comment on at trial.\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\ncodefendants were charged with “essentially” the same crimes\nand presented the “common, unified defense” that the victim was\nthe aggressor in the incident. [CITATION]. In Newman, we\nconcluded there was no likelihood of a conflict under these\ncircumstances, distinguishing Armstrong by noting the\ncodefendants in Armstrong were charged with “disparate . . .\ncriminal conduct.” [CITATION] (quotation simplified). See also [CITATION] (“[W]hen co-defendants are accused of varying\ndegrees of participation in an episode of criminal conduct, joint\nrepresentation invariably places defense counsel in the middle of\nconflicting interests.”) (emphasis added).\n¶25 Oreilly has not identified any case in which a jointly\nrepresented defendant charged with the same crimes as her\ncodefendant has shown that a disparity in the weight of the\nevidence presented against each resulted in an actual conflict of\ninterest. Nor is this a case in which the rule should be extended to\nsuch a situation, because even assuming the weight of the\nevidence against Thompson exceeded the weight against Oreilly,\nthat disparity did not create the likelihood of a conflict.\n¶26 Oreilly was charged with possession of\nmethamphetamine, possession of marijuana, and possession of\ndrug paraphernalia. “For possession charges, the circumstantial\nevidence necessary to convict is evidence showing a sufficient\nnexus between the accused and the contraband to permit an\ninference that the accused had both the power and the intent to\nexercise dominion and control over the contraband.” [CITATION] (quotation simplified). A\njury may consider, inter alia, “ownership and/or occupancy of the\nresidence or vehicle, presence of the defendant when the\ncontraband is discovered, the defendant’s proximity to the\ncontraband, previous drug use by the defendant (if the\ncontraband is drug-related), incriminating statements or\nbehavior, and presence of contraband in a specific area where the\ndefendant had control.” [CITATION] (quotation simplified). Although\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nThompson told officers he owned the drugs and paraphernalia,\nUtah law criminalizes possession, not ownership. Ownership is only\none of numerous factors that a jury may consider when it\nevaluates whether a defendant is guilty of possession. See id.\n¶27 Oreilly concedes the evidence against her “was not\ninsignificant.” As to the marijuana and paraphernalia charges, she\nspecifically told the trooper and the sergeant that the pipe and a\ngrinder belonged to her. The evidence showing Oreilly also\npossessed methamphetamine included her conversation with\nThompson while they sat in the trooper’s patrol car. She told\nThompson she threw a syringe away in the rest stop bathroom.\nThat statement is consistent with the trooper’s testimony that\nOreilly appeared to be under the influence of drugs when she\nexited the bathroom. There was also testimony Oreilly had needle\nmarks and bruising on her arms, indicating previous drug use.\nOreilly and Thompson also discussed the used syringes found in\nthe vehicle and whether it was illegal to keep them after using\nthem. Oreilly later told the trooper that any drugs officers found\nwere methamphetamine, not heroin. And, critically, there was\ntestimony that all the seized evidence was accessible to both the\ndriver and the passenger.\n\n[SEGMENT 7]\n¶28 Our review of the record confirms that any defense\nOreilly’s attorney could pursue on her behalf would not be\nmaterially aided by Thompson’s admission that he owned all the\ndrugs and paraphernalia. “[P]ossession of a controlled substance\nneed not be exclusive and is often joint.” [CITATION] The\nState’s evidence shows that Oreilly “had both the power and the\nintent to exercise dominion and control over the contraband”\neven if Thompson owned the contraband or also possessed it.\n[CITATION] Thus,\nThompson’s admission of ownership did not diminish Oreilly’s\nculpability on the possession charges, let alone potentially\nexculpate her of the charges. Under the circumstances here,\n\n 20230104-CA\n\n UT App 79 [CITATION]\n\nownership was essentially irrelevant and Oreilly has not shown\nhow her attorney could use Thompson’s admission in her favor.\nThus, there is no likelihood that any disparity in evidence gave\nrise to an actual conflict of interest.\n\n CONCLUSION\n¶29 Because Oreilly has failed to demonstrate an actual conflict\nof interest that resulted in the denial of effective assistance of\ncounsel, she is not entitled to the relief she seeks, and her\nconvictions are affirmed.\n\n\n 20230104-CA\n [CITATION] \n2024 UT App 29\n\n THE UTAH COURT OF APPEALS\n STATE OF UTAH,\n Appellee,\n v.\n NAWAF RAHEEM,\n Appellant.\n Opinion\n No. 20200720-CA\n Filed March 7, 2024\n Third District Court, Salt Lake Department\n The Honorable James T. Blanch\n No. 151910845\n Freyja Johnson, Emily Adams, and Hannah\n Leavitt-Howell, Attorneys for Appellant\n Sean D. Reyes and Marian Decker,\n Attorneys for Appellee\n JUDGE GREGORY K. ORME authored this Opinion, in which\n JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.\nORME, Judge:\n¶1 Nawaf Raheem challenges his conviction for aggravated\nsexual assault on several grounds. He contends that the State\nprovided insufficient evidence at trial to support the mens rea\nelement of the crime. He also argues that his trial attorney\n(Counsel) was constitutionally ineffective by failing to investigate\nand call a witness to testify in his defense. Relatedly, he seeks\nreversal “in the interests of fairness” based on our recent reversal\nof his co-defendant’s conviction on an ineffective assistance of\ncounsel claim. Lastly, he argues that improper statements from\nthe State and inadmissible testimony from its witnesses prevented\nhim from receiving a fair trial. We affirm. [CITATION]\n\n BACKGROUND 1\n¶2 One night in October 2012, Shannon 2 and a coworker\n(Coworker) visited a hookah lounge that they frequented. The\nhookah lounge was “a big party place” at which people would\nsmoke hookah, listen to music, and dance. There, Shannon and\nCoworker were joined by another friend (Friend) and Shannon’s\nthen-boyfriend. Raheem, the owner of the hookah lounge, and\nKevin Salazar, a regular customer, were also there that night.\nShannon considered both Raheem and Salazar to be her friends.\n¶3 At trial, Shannon testified that Salazar, who looked as if he\nhad been crying, asked her to join him in a storage closet to talk.\nShe stated that he shut the door behind her and began kissing her\nneck. Shannon told Salazar to stop, that she had a boyfriend, and\nthat she “didn’t want to be in there,” but he was undeterred.\n¶4 Because it had been “a minute,” Friend went to look for\nShannon. She knocked on the storage closet door and tried to\nenter, but the door was locked. Raheem, who had also been\nstanding outside the storage closet, then knocked on the door.\nSalazar opened the door for him, and Raheem “slid” inside. One\nof the men locked the door behind Raheem, leaving Friend\noutside and unable to enter. Friend testified that she then “just\nstarted banging on the door.” At one point after Raheem entered,\nFriend heard Shannon say, “Help me.” 3\n\n1. “On appeal, we recite the facts from the record in the light most\nfavorable to the jury’s verdict and present conflicting evidence\nonly as necessary to understand issues raised on appeal.” [CITATION]\n2. A pseudonym.\n3. Friend initially testified that Raheem was still in the hallway\nwhen she heard Shannon say, “Help me.” But on\n (continued…)\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n¶5 Shannon testified that when she heard Raheem knock on\nthe door, she thought she “was going to be able to walk out of that\nroom” and that Raheem would “stop the situation.” But instead\nof helping Shannon, Raheem pushed her against Salazar, bent her\nover, pulled down her pants, and vaginally penetrated her with\nhis penis. At the same time, Salazar removed his pants and\ninserted his penis into her mouth. Shannon did not “agree[] to\nwhat was going on,” but she could not recall whether she said\nanything.\n¶6 Shannon next recalled them all being on the ground, with\nher on top of Salazar and Raheem behind her. Salazar “was\nhaving sex vaginally and [Raheem] was anally.” She again could\nnot remember whether she said anything at that point. While\ndoing this, the men “high fived” each other and Salazar said,\n“Double penetration.” At some point, they also removed\nShannon’s bra, leaving her “basically nude.”\n¶7 When Shannon heard Friend “banging on the door” and\n“yelling” “something about a key,” she began to cry, and Salazar\nand Raheem stopped assaulting her. Shannon then dressed, ran\nout of the storage closet, and left the hookah lounge. Shannon’s\nboyfriend had already left the hookah lounge at that\npoint.\n¶8 Friend estimated that approximately five minutes had\npassed between when she began “banging on the door” and when\nShannon exited the closet. Friend pursued Shannon, briefly\nreturning to the hookah lounge to retrieve Shannon’s purse and\nkeys, and the two left. Friend testified that Shannon “was really\ndistraught,” crying and saying, “Help me.” In the car, Shannon\ntold Friend what had happened in the storage closet. Shannon\ncross-examination, Friend clarified that she heard Shannon’s cry\nfor help after Raheem entered the storage closet.\n\n[CITATION]\n\nthen dropped Friend off at home and told her that “she was going\nto go home and call the police.”\n¶9 Coworker testified that when Shannon returned from the\nstorage closet, “she was hysterical, sobbing,” and “barely able to\nform sentences because she was crying so hard.” Shannon told\nher, “I have to go. I have to get out of here,” and, “[W]e have to\ngo. I was raped. These two guys took me into a closet and raped\nme.” Shannon then yelled “at a group of individuals” “something\nto the effect of, ‘I can’t believe you did this. I’m going to make you\npay.’” Coworker offered to take Shannon to the emergency room,\nbut she declined the offer and “just wanted to go to her car.”\n¶10 Shannon did not call the police when she arrived home.\nInstead, she called another friend and told him that she had been\nraped. The friend reported the rape to the police. A detective met\nwith Shannon that same night, and she told him what had\nhappened at the hookah lounge. The detective testified that\nduring the conversation, Shannon would not look him in the eye\nand her posture was “slumped, saddened.”\n¶11 The detective convinced Shannon to go to the hospital that\nnight for an examination. The examination revealed some bruises\nand abrasions on Shannon’s body, as well as injuries to the\nperineum, below the rectum, and to the rectum. The examining\nnurse testified at trial that Shannon’s examination “stuck out” to\nher because “it was the worst rectal injury [she had] seen on a\npatient.” But she conceded that it was nonetheless possible for\nthose injuries to be the product of consensual sex. The nurse also\ntestified that, among other things, during the examination,\nShannon “stated she felt as though she blacked out during the\nassault.”\n¶12 At the time, Shannon did not “want to go forward with the\nprosecution of the case” because she did not wish to cause stress\nto her dying father. Given that she and Raheem “were around the\nsame areas, same places,” she saw Raheem “a few times” after\nthat night. But because she “didn’t want to make a scene,” and\n\n[CITATION]\n\nbecause she “wasn’t going to move forward with anything,” she\n“acted like nothing happened” on such occasions. On\ncross-examination, Shannon stated that she did return to the\nhookah lounge with friends in 2013, but she did not recall seeing\nRaheem at that time. She also stated she saw Raheem at a party in\n2016 and that she came within eight feet of him. Shannon could\nnot remember whether she saw Salazar again after the night of the\nparty.\n\n[SEGMENT 8]\n¶13 In 2015, a year after her father passed away, Shannon was\ncontacted by the producers of a television program that dealt in\nunresolved crimes. The producers were interested in her case and\nShannon agreed to participate in the show. As a result, the police\nreopened the case.\n¶14 With Shannon’s cooperation, the State charged Salazar and\nRaheem each with one count of aggravated sexual assault.\nRaheem and Salazar, represented by different counsel, were tried\njointly in 2019—nearly seven years after the sexual assault in the\nstorage closet. At trial, the State presented testimony from, among\nothers, Shannon, Friend, Coworker, the friend who called the\npolice, the detective who interviewed Shannon on the night of the\nincident, a detective who interviewed Shannon in 2015, and the\nexamining nurse. That testimony is recounted, in relevant parts,\nabove. Of note, Shannon’s testimony contained multiple instances\nin which she could not remember specifics and had to refresh her\nmemory by reviewing copies of her police interview, the report\nfrom the sexual assault exam, and the preliminary hearing\ntranscript. Additionally, as detailed in Part III.A below, certain\nstatements made by the witnesses and by the prosecutors were\nthe subject of objections and a motion for mistrial.\n¶15 As part of his defense case, Raheem called his brother and\na friend to testify. His brother testified that he was working at the\nhookah lounge that night and that he eventually went looking for\nRaheem. He stated that when he knocked on the storage closet\ndoor, Raheem stepped out, followed by Shannon. He stated that\nShannon smiled at him and that she did not appear to be upset or\n\n[CITATION] State v. [CITATION]\n\nto have been crying. He had not heard “any screaming or crying\nor anybody call for help” before knocking on the door. He testified\nthat Friend then appeared and pulled Shannon by the arm, and\nthe two “start[ed] walking and talking.”\n¶16 Raheem’s friend testified that he was also at the hookah\nlounge that night and that he saw Salazar and Shannon walk into\nthe storage closet, followed about a minute later by Raheem. He\ndid not hear “any crying, screaming or calls for help” coming\nfrom the closet before or after Raheem entered. He stated that\napproximately five minutes later, he saw Raheem’s brother knock\non the door and that Raheem, Salazar, and Shannon all exited the\ncloset. To him, Shannon did not appear upset or to have been\ncrying. He testified that Friend, who did appear upset, then\napproached Shannon and pulled her away.\n¶17 During closing argument, Counsel asserted, among other\nthings, that Shannon, Raheem, and Salazar engaged in a\nconsensual threesome in the closet. He argued that Shannon’s\nreturning to the hookah lounge in 2013 and coming within eight\nfeet of Raheem at the 2016 party suggested that she had not been\nsexually assaulted that night. He further asserted that Shannon’s\ntestimony was unreliable and that it should be disregarded in its\nentirety.\n¶18 The jury convicted Raheem and Salazar as charged.\nSubsequently, through new counsel, Raheem filed motions to\narrest judgment and for a new trial. In the motion to arrest\njudgment, he argued, in relevant part, that the State failed to\nprove that he “at the very least . . . acted recklessly in regard to\n[Shannon’s] consent.” And in the motion for a new trial, Raheem\nargued, among other things, that he was entitled to a new trial\nbecause Counsel was ineffective for failing to investigate and call\nRaheem’s then-girlfriend (Girlfriend) to testify as part of the\ndefense and that the State and its witnesses made several\nimpermissible statements throughout trial. The trial court denied\nboth motions.\n\n\n [CITATION] State v. Raheem\n\n¶19 Raheem appeals. 5\n\n ISSUES AND STANDARDS OF REVIEW\n¶20 Raheem raises three issues for our consideration. First, he\nargues that the State failed to prove that he was at least reckless\nas to Shannon’s nonconsent. He raised this argument before the\ntrial court in a motion to arrest judgment. 6 “We review a district\ncourt’s grant or denial of a motion . . . to arrest judgment for\ncorrectness.” [CITATION] (quotation simplified). We will “uphold a denial of the motion . . .\nto arrest judgment based on an insufficiency of the evidence\n\n5. Salazar separately appealed. See [CITATION]. We\nreversed Salazar’s conviction and remanded for a new trial. See id.\n¶ 60; infra Part II.B.\n6. Citing [CITATION], the State\nargues that this sufficiency challenge is unpreserved because it\ncould have been raised at trial. See id. ¶ 49 n.15 (“[A]n objection\nthat could have been raised at trial cannot be preserved in a\npost-trial motion.”). In response, Raheem contends that the State’s\nbroad interpretation of Fullerton “skirt[s] the plain language” of\nrule 23 of the Utah Rules of Criminal Procedure, which says that\n“At any time prior to the imposition of sentence, the court upon\nits own initiative may, or upon motion of a defendant shall, arrest\njudgment if the facts proved or admitted do not constitute a public\noffense, or the defendant is mentally ill, or there is other good\ncause for the arrest of judgment.” Raheem further asserts that\n“[CITATION] simply asserts that defendants cannot ‘preserve issues\nlike prosecutorial misconduct through motions to arrest\njudgment.’” See [CITATION]. Because we\nultimately resolve the merits of this argument in the State’s favor,\nwe need not resolve this preservation issue. See [CITATION].\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nclaim, if some evidence exists from which a reasonable jury could\nfind that the elements of the crime had been proven beyond a\nreasonable doubt.” Id. (quotation simplified). See [CITATION],\n2020 UT 65, ¶ 31, 477 P.3d 1251 (“We reverse the denial of a\nmotion to arrest judgment only if the evidence, viewed in the light\nmost favorable to the verdict, is so inconclusive or so inherently\nimprobable as to an element of the crime that reasonable minds\nmust have entertained a reasonable doubt as to that element.”)\n(quotation simplified).\n¶21 Second, Raheem argues that Counsel was ineffective for\nfailing to investigate and present evidence at trial that would have\nundercut Shannon’s credibility. Although Raheem raised this\nissue in his motion for a new trial, “[t]here is no reason . . . to\ndepart from the standard of review set out in [CITATION] simply\nbecause the appeal was preceded by a motion for new trial.” [CITATION],\n805 P.2d 182, 185–86 (Utah 1990). That is, “ineffective\nassistance of counsel claims present a mixed question of fact and\nlaw.” Id. at 186 (citing [CITATION], 466 U.S. 668, 698\n(1984)). We thus “review a trial court’s application of the law to\nthe facts for correctness and, if applicable, we review the court’s\nfindings of fact for clear error.” [CITATION], 2021 UT\nApp 74, ¶ 26, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah 2021).\nSee [CITATION], 2022 UT App 38, ¶ 31 & n.14, 509 P.3d 198, cert.\ndenied, 525 P.3d 1258 (Utah 2022).\n¶22 Third, Raheem argues that “[i]mproper statements from\nthe State and inadmissible testimony from its witnesses prevented\n[him] from receiving a fair trial.” 7 He also raised this argument in\na motion for a new trial. We “generally review a district court’s\ndenial of a motion for a new trial for abuse of discretion, but we\n\n7. The State argues that although certain objectionable statements\nwere the subject of unsuccessful motions for mistrial, this\nargument is also unpreserved because Raheem first raised the\n“expanded cumulative-prejudice claim in a post-verdict motion.”\nFor the same reason discussed above, see supra note 6, we do not\nreach this preservation argument.\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nreview any underlying legal conclusions for correctness.” [CITATION].\n\n ANALYSIS\n I. Sufficiency of the Evidence\n¶23 To convict Raheem of aggravated sexual assault, the State\nhad to prove not only that Shannon did not consent to the sexual\nactivity that occurred in the storage closet but also that Raheem\nwas, at the very least, reckless as to Shannon’s nonconsent. See\nUtah Code Ann. § 76-2-102 (LexisNexis 2017) (“Every offense not\ninvolving strict liability shall require a culpable mental state, and\nwhen the definition of the offense does not specify a culpable\nmental state and the offense does not involve strict liability, intent,\nknowledge, or recklessness shall suffice to establish criminal\nresponsibility.”); id. § 76-5-405(2)(a) (Supp. 2023) (stating that an\nelement of aggravated sexual assault includes the commission of\nrape or forcible sodomy); [CITATION] (“The crime of rape [or forcible sodomy] requires proof not\nonly that a defendant knowingly, intentionally, or recklessly had\nsexual intercourse [or engaged in sodomy], but also that he had\nthe requisite mens rea as to the victim’s nonconsent.”) (quotation\nsimplified). On appeal, Raheem challenges only the sufficiency of\nthe State’s evidence of his recklessness as to Shannon’s\nnonconsent.\n\n[SEGMENT 9]\n¶24 A person acts recklessly\n with respect to circumstances surrounding his\n conduct or the result of his conduct when he is\n aware of but consciously disregards a substantial\n\n8. Because the applicable provisions of the Utah Code in effect at\nthe relevant time do not differ from those currently in effect in any\nway material to this appeal, we cite the current version of the code\nfor convenience.\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n and unjustifiable risk that the circumstances exist or\n the result will occur. The risk must be of such a\n nature and degree that its disregard constitutes a\n gross deviation from the standard of care that an\n ordinary person would exercise under all the\n circumstances as viewed from the actor’s\n standpoint.\nId. § 76-2-103(3) (2017). Thus, the State was required to prove, at\nthe very least, that Raheem “was subjectively aware of but\nconsciously disregarded the risk” of Shannon’s nonconsent. [CITATION] (quotation\nsimplified). See [CITATION] (stating\nthat one is reckless when “one perceives a risk and consciously\ndisregards it”).\n¶25 “Intent can be proven by circumstantial evidence.” [CITATION] (quotation simplified).\nIndeed, “unless a confession is made by the defendant concerning\nintent, or unless the court is somehow able to open the mind of\nthe defendant to examine his motivations, intent is of necessity\nproven by circumstantial evidence.” Id. (quotation simplified).\nAnd in determining intent, “the factfinder . . . is entitled to draw\nall reasonable inferences from the facts and from the actions of the\ndefendant.” Id. (quotation simplified). See id. ¶ 106 (“The criminal\nintent of a party may be inferred from circumstances such as\npresence, companionship, and conduct before and after the\noffense.”) (quotation simplified). “A jury’s inference is reasonable\nunless it falls to a level of inconsistency or incredibility that no\nreasonable jury could accept.” [CITATION] (quotation simplified). Thus, where the evidence\nsupporting an element of a crime is circumstantial, which will\nalmost always be the case for the mens rea element, “we must\ndetermine . . . whether the inferences that can be drawn from that\nevidence have a basis in logic and reasonable human experience\nsufficient to prove each legal element of the offense beyond a\nreasonable doubt.” [CITATION]\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n391 (quotation simplified). “The issue is not whether some other\n(innocent) inference might have been reasonable. It is simply\nwhether the inference adopted by the jury was sustainable.”\n[CITATION]. An inference is\nnot sustainable if it “give[s] rise to only remote or speculative\npossibilities of guilt.” [CITATION].\n¶26 In denying Raheem’s motion to arrest judgment, the trial\ncourt concluded that “there was sufficient evidence at trial for the\njury to find [Raheem] at the very least acted recklessly in raping\nor sodomizing” Shannon. Pointing to Shannon’s testimony that\nshe was trying to exit the storage closet at the time Raheem\nentered, the court stated that “[t]he jury could reasonably have\nconcluded [Raheem] locked the door, creating a circumstance\nwhere he could prevent [Shannon] from leaving the room and\ncould overcome her through physical force.” The court also\npointed to Friend’s testimony that she heard Shannon call for help\nsometime after Raheem entered the storage closet “and the door\nwas not opened for at least five minutes, creating a circumstance\nwhere the jury could have believed [Shannon] did not consent\nthrough words or conduct.” The court also stated that the jury\nheard testimony from the examining nurse that Shannon told her\n“she felt as though she blacked out during the assault,” which\n“create[ed] a circumstance where the jury could reasonably\nbelieve [Raheem] knew [Shannon] was unconscious or unaware\nthe acts were occurring.” Finally, the court stated that “it is\nreasonable for the jury to conclude a person engaging in sexual\nactivity with another person in a small and cramped space would\nnot consent to a third person approaching her from behind,\nremoving her pants, and penetrating her anally with his penis,”\ncausing “severe” rectal injuries that “were consistent with\nnonconsensual sexual acts.”\n¶27 On appeal, Raheem argues that “[t]he evidence the district\ncourt relied on in its analysis does not prove that [he] acted with\na criminal mindset about [Shannon’s] nonconsent.” He then raises\nseveral challenges to the court’s analysis:\n\n20200720-CA\n\n UT App 29 [CITATION]\n\n • He asserts that the act of locking the closet door “does not\n support an inference that [he] was aware of and\n consciously disregarded a risk that [Shannon] did not\n consent” because “[i]t is common to lock a door when\n engaging in consensual sexual activity” and because\n Shannon did not testify that she took any action that should\n have alerted [CITATION] to the fact that she was trying to exit\n the storage closet.\n • He takes issue with the court’s suggestion that the jury\n could infer that he was reckless as to Shannon’s nonconsent\n based on the type and location of sexual activity that\n occurred because “[i]ndividuals engage in diverse\n consensual sexual activity.”\n • He challenges the court’s conclusion that the jury could\n infer recklessness from Friend’s testimony that the door\n was not opened for five minutes after Friend heard\n Shannon call for help from the inside. He contends that,\n even crediting Friend’s testimony, any such inference “is\n unsupported speculation” because Shannon testified that\n the men ceased the sexual intercourse when she started\n crying and the fact “[t]hat it took five minutes for the three\n to dress and emerge does not support an inference that [he]\n continued sex.”\n • He argues that the court’s focus on the injuries the\n examining nurse documented during the sexual assault\n examination was improper because those injuries went\n toward consent rather than recklessness. And he asserts\n that, in any event, the injuries did not establish nonconsent\n because the nurse testified that they could have been\n caused by consensual intercourse.\n • He argues that the court’s reliance on the examining\n nurse’s testimony that Shannon “stated she felt as though\n she blacked out during the assault” was inappropriate\n because “[w]ithout information about timing, evidence\n\n[CITATION]\n\n that [Shannon] ‘felt as though she blacked out’ at some\n unspecified moment does not support an inference that\n [he] was aware of and disregarded a risk that she did not\n consent during the sexual activity.” He further argues that\n the evidence did not support an inference that Shannon\n visibly lost consciousness.\n¶28 In addition to challenging the court’s reasons for denying\nhis motion to arrest judgment, [CITATION] contends that the State\npresented insufficient evidence in other respects to prove that he\nwas at least reckless as to Shannon’s nonconsent. 9 He argues the\nfollowing points:\n • Shannon told Salazar to stop kissing her on the neck and\n that she “didn’t want to be in” the storage closet before\n [CITATION] entered the closet, and the State presented no\n evidence that [CITATION] heard this interaction from the\n other side of the door.\n • Although Shannon testified that she “was trying to get\n out” when [CITATION] entered the closet, “she did not testify\n that she did or said anything at that point” that would\n have made him aware of that fact.\n • After [CITATION] entered the closet, Shannon “did not testify\n about any verbal or nonverbal cues that could have made\n\n\n9. [CITATION]’s arguments are limited to addressing the first part of\nthe recklessness definition, i.e., whether he was “aware of but\nconsciously disregard[ed] a substantial and unjustifiable risk\nthat” Shannon did not consent. Utah Code Ann. § 76-2-103(3)\n(LexisNexis 2017). He does not argue that the risk was not “of\nsuch a nature and degree that its disregard constitute[d] a gross\ndeviation from the standard of care that an ordinary person\nwould exercise under all the circumstances as viewed from [his]\nstandpoint.” Id.\n\n[CITATION] State v. Raheem\n\n [him] aware that she did not consent” to the sexual activity\n that was about to occur.\n • Shannon “did not testify to any actions or reactions that\n would have made [him] aware of a risk that she did not\n consent” either when he bent her over and had vaginal sex\n with her or when he had anal sex with her after they were\n all on the ground. To the contrary, he points to the fact that\n Shannon testified that both men ended the sexual\n encounter when she started crying. “Thus,” he argues,\n “when [Shannon] did exhibit a nonverbal cue that she did\n not consent, the men heeded that cue and stopped.”\n\n[SEGMENT 10]\n¶29 But even taking all the above arguments at face value, the\njury nonetheless heard sufficient evidence from which it could\nreasonably infer that Raheem acted recklessly as to Shannon’s\nnonconsent. As an initial matter, Friend testified that Raheem was\nalso present in the hallway when she initially knocked on the\nlocked door and tried to enter the storage closet. After Friend’s\nefforts proved unsuccessful, Raheem knocked, and the door was\nopened for him. From this testimony, the jury could reasonably\ninfer that Raheem was aware that Friend was concerned about\nwhat was transpiring in the storage closet. But Raheem did not\nhold the door open for Friend to also enter. Instead, he “slid\nthrough the door” and one of the men locked it behind him.\nShannon testified that as soon as Raheem entered the closet, he\npushed her against Salazar, bent her over, pulled down her pants,\nand began having vaginal sex with her, all while Salazar also\ninserted his penis into her mouth. This bears none of the usual\nhallmarks of consensual sex. There was no evidence presented\nthat there had been a prior agreement between the three to have\nsex in the closet—to the contrary, Shannon testified that before\nRaheem entered the closet, she told Salazar that his sexual\nadvances were unwelcome and that she wanted to leave. Nor did\nRaheem ask any questions to ascertain whether Shannon would\nconsent to sexual intercourse. And even in the absence of any\nindication from Shannon that she did not consent to the sexual\nactivity, there was also no evidence presented that Shannon\n\n[CITATION] State v. Raheem\n\nsuggested to Raheem in any way that she would consent to such\naction, if taken. For example, Shannon did not voluntarily bend\nover; instead, Raheem pushed her against Salazar and caused her\nto bend over. And Raheem—not Shannon—was the one to\nremove her pants in the absence of any indication that this would\nmeet with Shannon’s approval.\n¶30 In sum, the State presented evidence that Raheem entered\nthe storage closet after observing a concerned Friend\nunsuccessfully try to do the same. When the door was opened for\nhim, he “slid” inside and did not permit Friend to enter. Once in\nthe closet, both men began engaging in sexual activity with\nShannon—which was initiated without any indication from\nShannon suggesting that she was a willing participant. Based on\nthe evidence of these circumstances, coupled with “reasonable\nhuman experience,” [CITATION], a jury could reasonably infer that\nRaheem was, at the very least, “aware of but consciously\ndisregard[ed] a substantial and unjustifiable risk” that Shannon\ndid not consent when he pushed her against Salazar, removed her\npants, and began having sexual intercourse with her, Utah Code\nAnn. § 76-2-103(3) (LexisNexis 2017).\n¶31 For the foregoing reasons, we reject Salazar’s challenge to\nhis conviction on sufficiency of the evidence grounds.\n II. Ineffective Assistance of Counsel\n¶32 Raheem argues that Counsel was constitutionally\nineffective for failing to investigate and call Girlfriend to testify in\nhis defense. He makes two arguments related to this claim of\nineffective assistance. First, he argues the merits of the claim.\nSecond, he seeks reversal “in the interests of fairness” based on\nour recent reversal of his co-defendant Salazar’s conviction on\nineffective assistance grounds. See [CITATION]. We\nhold that Raheem is not entitled to reversal on either ground.\n\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nA. The Merits\n¶33 To prevail on a claim of ineffective assistance of counsel, a\ncriminal defendant must show both that (1) “counsel’s\nperformance was deficient” and (2) “the deficient performance\nprejudiced the defense.” [CITATION]. Here, because we hold that Raheem has failed to establish\nthat counsel performed deficiently, we need not also address\nprejudice. See [CITATION] (“A defendant’s inability to establish either element defeats a\nclaim for ineffective assistance of counsel[.]”) (quotation\nsimplified), cert. denied, [CITATION].\n¶34 To satisfy the deficient performance element, the\ndefendant must overcome the “strong presumption that counsel’s\nconduct falls within the wide range of reasonable professional\nassistance,” [CITATION], and show that defense\ncounsel’s actions “fell below an objective standard of\nreasonableness,” [CITATION]. Under this standard, it is insufficient\nto merely show that counsel erred. See [CITATION]. Rather, “the ultimate question is always\nwhether, considering all the circumstances, counsel’s acts or\nomissions were objectively unreasonable.” [CITATION].\n¶35 “An attorney has a duty to conduct a reasonable\ninvestigation into the facts of his client’s case and to make\nreasonable decisions regarding the proper scope of that\ninvestigation.” [CITATION]. “If\ncounsel does not adequately investigate the underlying facts of a\ncase, including the availability of prospective defense witnesses,\ncounsel’s performance cannot fall within the wide range of\nreasonable professional assistance.” [CITATION] (quotation simplified). Defense counsel’s\n“decision not to investigate must be directly assessed for\nreasonableness in all the circumstances, applying a heavy\nmeasure of deference to counsel’s judgments.” [CITATION]. “In evaluating the reasonableness of counsel’s\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\ninvestigation, we consider not only the quantum of evidence\nalready known to counsel, but also whether the known evidence\nwould lead a reasonable attorney to investigate further.” [CITATION],\n2014 UT 19, ¶ 37 (quotation simplified). To that end, “inquiry into\ncounsel’s conversations with the defendant may be critical to a\nproper assessment of counsel’s investigation decisions.”\n[CITATION], 466 U.S. at 691. See id. (“Counsel’s actions are usually\nbased, quite properly, on informed strategic choices made by the\ndefendant and on information supplied by the defendant. In\nparticular, what investigation decisions are reasonable depends\ncritically on such information.”).\n¶36 Raheem first raised his claim that Counsel was ineffective\nfor not investigating or calling Girlfriend to testify in his motion\nfor a new trial. The motion was accompanied by affidavits from\nhimself and Girlfriend.\n¶37 In her affidavit, Girlfriend averred that she dated Raheem\n“on and off” from 2012 to 2013 and that she “spent a lot of time\nhelping [Raheem] run” the hookah lounge as well as a different\nlounge he later ran. She stated that on the night of the assault,\nShannon came up to her and told her that she had given Raheem\n“head,” which Girlfriend understood to mean that Shannon “had\nperformed oral sex on” Raheem. Girlfriend further averred that\nShannon “did not seem upset,” nor did she tell Girlfriend that\nRaheem “forced her to perform any sex act.” Girlfriend stated\nthat, to the contrary, Shannon’s “tone of voice and expression\nseemed bragging” as if she intended to make Girlfriend jealous.\nGirlfriend later confronted Raheem about Shannon’s claim,\nresulting in an argument.\n¶38 Girlfriend stated that after that night, Shannon continued\nto frequent the hookah lounge and “act friendly with” Raheem.\nGirlfriend stated that on another night, she observed on the\nsecurity cameras Raheem and Shannon have a conversation and\nhug. Girlfriend said she confronted Raheem about the hug and\nanother argument ensued. Girlfriend stated that Counsel never\ncontacted her but that if he had called her to testify at trial, she\n\n 20200720-CA\n\n UT App 29 [CITATION]\nwould have testified as recounted above. She stated that when she\nheard that [CITATION] “went to jail,” she contacted his brother, who\nput her in touch with [CITATION]’s appellate counsel.\n¶39 In his affidavit, [CITATION] averred that he told Counsel that\nfollowing the night in question, Shannon not only continued to\nvisit the hookah lounge, as well as the other lounge he later ran,\nbut that she also “continued to be friendly and flirtatious with”\nhim and “apologized . . . multiple times for ‘the drama’ and asked\nif [they] could still be friends.” At the end of one of these\nconversations, the two hugged. He also stated that shortly after\nthe episode giving rise to the charge in this case, Girlfriend\nconfronted him, saying that Shannon told her that Shannon “had\ngiven [him] head.” [CITATION] stated that Counsel did not ask\nwhether anyone could corroborate these assertions, and he\nclaimed that if Counsel had asked, “I would have told him that”\nGirlfriend “could confirm these things.” 10\n¶40 Counsel’s investigation did, however, uncover pictures\ntaken in 2013—a few months after the sexual assault—of Shannon\nat the hookah lounge with friends and a video taken at the 2016\nparty at which Shannon was within eight feet of [CITATION]. Counsel\nintended to introduce the pictures and stills from the video at trial.\nThe State objected to the admission of the proposed exhibits\n“based on relevancy, and also being more prejudicial than\nprobative.” Counsel responded that he would not use the stills if\nShannon acknowledged that she was at the 2016 party and that\nshe felt sufficiently comfortable to come within eight feet of\n[CITATION]. But he did intend to introduce the stills if Shannon\ndenied being at the party or testified that she was “off in a corner\nscared.” He also intended to introduce the 2013 pictures if\nShannon denied returning to the hookah lounge with friends and\nhaving “a good time.” The court sustained the State’s objection\n“for now,” stating, “We’ll see how she testifies.” This issue was\n\n[SEGMENT 11]\n\n10. [CITATION] does not explain why he did not just volunteer this\ninformation considering how important he apparently thought it\nwas.\n\n20200720-CA\n\n UT App 29 State v. Raheem\n\nnot revisited later at trial because Shannon did, in fact,\nacknowledge visiting the hookah lounge with friends in 2013 and\napproaching within eight feet of Raheem at the 2016 party.\n¶41 Raheem argues that Counsel’s investigation was deficient\nbecause he did not follow up when Raheem told him of Shannon’s\nbehavior toward him after the night of the assault. Raheem asserts\nthat if Counsel had done so, he “would have discovered that there\nwas in fact a witness who could corroborate [his] story that\nShannon had bragged about her sexual encounter with [him] to a\nthird party.” He argues that if Counsel had “investigated and\npresented [Girlfriend’s] testimony, he would have been able to\nfurther cast doubt on [Shannon’s] credibility and refute\nstatements she made about her post-incident conduct.”\n¶42 We first emphasize the scope of our inquiry. Without\nquestion, the best practice would have been for Counsel to follow\nup by asking whether anyone could corroborate Raheem’s\nassertions. But, as stated above, under a claim of ineffective\nassistance of counsel, “the ultimate question is always whether,\nconsidering all the circumstances, counsel’s acts or omissions\nwere objectively unreasonable.” [CITATION]. See [CITATION]\n(stating that the deficient performance element “requires showing\nthat counsel made errors so serious that counsel was not\nfunctioning as the ‘counsel’ guaranteed the defendant by the Sixth\nAmendment”); [CITATION] (“Even\nif an omission is inadvertent and not due to a purposeful strategy,\nrelief is not automatic.”) (quotation simplified). Under this\nstandard, we hold that Counsel’s omission was not objectively\nunreasonable under the circumstances of this case.\n¶43 As discussed above, Counsel’s investigation into\nShannon’s post-assault behavior produced photographic\nevidence both that Shannon returned to the hookah lounge a\nfew months after the assault and that she felt comfortable\nenough to approach within eight feet of Raheem at a party\nsome years later. Although Shannon acknowledged at trial\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nthat she did these things, thus obviating the need for Counsel to\nseek admission of the photographic evidence, Counsel\nnonetheless argued during closing argument that this\npost-assault conduct conflicted with her claim that she had\nbeen sexually assaulted that night. Additionally, Counsel\ncalled Raheem’s brother and friend to counter Shannon’s\ntestimony, as well as that of other State witnesses, regarding her\nbehavior at the hookah lounge immediately after she exited the\nstorage closet.\n¶44 Having uncovered the photographic evidence and the\ntwo defense witnesses, coupled with Raheem’s silence during the\nconversation as to Girlfriend’s ability to corroborate his account of\nhis post-assault interactions with Shannon, it was not\nunreasonable for Counsel to believe that he had\nsufficiently investigated Shannon’s post-assault conduct. Indeed,\nCounsel’s investigation was sufficient to prompt Raheem to\ndiscuss Shannon’s continued “friendly and flirtatious” behavior,\nas well as the hug after a conversation in which Shannon\napologized for “the drama.” And the follow-up question that\nRaheem faults Counsel for not asking only sought additional\ninformation that a person could reasonably be expected to\nvolunteer without further prompting. Thus, after Raheem\ndivulged the information to which Girlfriend would have\ntestified, it was not unreasonable for Counsel to presume that\nRaheem would also mention that a witness to such events existed,\nif one did. 11\n¶45 For these reasons, under the circumstances of this case, we\ncannot say that Counsel’s failure to ask the follow-up question\n\n11. Although we cannot be sure on this record whether Raheem\nwas the one to direct Counsel’s attention to his brother and friend\nas witnesses to Shannon’s conduct immediately after exiting the\nstorage closet, we note that if he was, it would be yet another\nreason that Counsel’s not asking a follow-up question regarding\nShannon’s alleged later conduct was not unreasonable.\n\n[CITATION] State v. Raheem\n\nabout other potential witnesses was objectively unreasonable.\nRaheem’s claim of ineffective assistance therefore fails. 12\nB. Interests of Fairness\n¶46 Alternatively, Raheem argues that in light of our recent\nreversal of co-defendant Salazar’s conviction on ineffective\nassistance grounds, see [CITATION], we should\nlikewise reverse his conviction and grant him a new trial “in the\ninterests of fairness.” 13 But because Raheem does not ground this\nclaim on any constitutional provision, statute, rule, or caselaw, we\nhave no basis for reversal and this argument necessarily fails.\n¶47 In the other appeal, Salazar argued, in relevant part, that\nhis trial counsel was ineffective for failing to introduce at trial\ncertain Voxer 14 messages Shannon sent Salazar following the\n\n\n12. Because we reject Raheem’s claim that Counsel was ineffective\nfor failing to further investigate, we need not address his\nargument that Counsel was also ineffective for failing to call\nGirlfriend to testify at trial. Because Counsel was unaware of\nGirlfriend’s existence at the time of trial, he could not have been\nexpected to call her to testify.\n13. Because we reversed Salazar’s conviction after Raheem\nsubmitted his principal brief, Raheem first raised this issue in his\nreply brief, and we subsequently authorized surreply briefing on\nthis question.\n14. “Voxer is an app that allows users to exchange voice, text,\nphoto, and video messages. Its primary service is to deliver voice\nlive—so it can be listened to immediately while also\nsimultaneously recording the message—so it can be listened to\nlater.” [CITATION]\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nassault. 15 See [CITATION]. At the preliminary hearing, apart\nfrom “a few messages” she received “from Salazar in the days\nimmediately after the incident,” Shannon “testified that she did\nnot ‘hang out with him after the assault’ and ‘never had any direct\ncontact with Mr. Salazar.’” [CITATION] (quotation simplified). At trial,\nShannon “stated that she did not recall having contact or\nsocializing with Salazar after the incident but that she ‘was told\nthat I reported something before to the cops, but I don’t\nremember.’” [CITATION]. She also stated that “it was ‘correct’ that ‘at\nthe preliminary hearing under oath she said that she would never\nhave had contact with Salazar after the fact.’” [CITATION] (quotation\nsimplified). Salazar’s trial counsel did not present the Voxer\nmessages at trial to undermine Shannon’s credibility.\n¶48 Salazar argued that his trial counsel was ineffective\nbecause the Voxer “messages would have showed that Shannon\nlied when she repeatedly and unequivocally testified at the\npreliminary hearing that she never again contacted Salazar.” [CITATION]\n.\n15. Salazar also argued that his trial counsel was ineffective for\nfailing to investigate the Voxer messages. See [CITATION]. We\ndeclined to address this issue, stating that even if the State was\ncorrect that we should presume that Salazar’s counsel\ninvestigated the Voxer messages, “it does not change our\nconclusion that [Salazar’s counsel] was ineffective for not using\nthem at trial.” [CITATION]. We also noted that based on the trial court’s\nstatement that evidence existed that Salazar’s counsel possessed\nthe messages at the time of trial but elected not to use them, “we\ndo not conclude that [Salazar’s counsel] failed to investigate the\nexistence of the messages, because he actually had the messages,\neven though it is suggested by Salazar that [his counsel] did not\nhave the technical expertise to access and review them.” [CITATION]. Our\nanalysis thus focused on counsel’s decision not to use the\nmessages at trial. See [CITATION].\n Here, conversely, Girlfriend’s affidavit stated that when she\ndid come forward, Raheem’s brother put her in contact with\nappellate counsel—thus indicating that Raheem had already been\nconvicted at that point.\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n¶ 35 (quotation simplified). We held that [CITATION]’s trial counsel\nperformed deficiently in not using the messages at trial because\n“with Shannon as the State’s lead and most critical witness, any\nreasonable counsel would have presented the Voxer messages to\nundermine her credibility.” [CITATION]. See [CITATION] (stating that it was\n“unreasonable for [CITATION]’s counsel not to use the Voxer\nmessages to undercut Shannon’s already problematic\ncredibility”). We further held that [CITATION] was prejudiced, stating\nthat based on “Shannon’s problematic testimony and the lack of\nnecessarily inculpatory physical evidence, the Voxer messages\nwould have affected the overall evidentiary picture, and the jury\nmay well have found Shannon less credible.” [CITATION] (quotation\nsimplified). See infra note 19. Accordingly, we reversed [CITATION]’s\nconviction for aggravated sexual assault on ineffective assistance\nof counsel grounds and remanded his case for a new trial. See\n[CITATION].\n\n[SEGMENT 12]\n¶49 Raheem argues, “[T]his Court should recognize that any\nchange in [CITATION]’s trial would have resulted in a different\noutcome for [him]. The two men were charged with the same\ncrime and had a single trial. If [CITATION] did not receive a fair\ntrial, [Raheem] was also impacted by that lack.” 16 But Raheem’s\nargument in briefing is limited to citing a handful of Utah cases\nreferencing “principles of fairness” in other contexts that provide\nno basis for reversal in this case.\n¶50 During oral argument, Raheem pointed to our Supreme\nCourt’s recent decision in [CITATION], in\n\n16. Raheem primarily argued that reversal was warranted under\nthe law of the case doctrine, contending that “[t]his Court’s\nreasoning in [CITATION] explicitly demonstrates that [Counsel] acted\ndeficiently when he failed to introduce evidence which undercut\nShannon’s credibility and that [he] was prejudiced by [Counsel’s]\ndeficiencies.” But Raheem conceded during oral argument that\nbecause “different evidence [is] involved” here than was at issue\nin that appeal, [CITATION] has more of a persuasive effect on the\ncurrent case “than strict law of the case.”\n\n20200720-CA\n\n UT App 29 State v. Raheem\n\nwhich the Court held, as a matter of first impression, that a mother\nwhose parental rights were terminated could participate in a\nremand the father had secured on appeal. See id. ¶ 34. In that case,\neach parent raised separate claims of error in the joint appeal, see\nid. ¶ 8, but only the father’s claims of error proved successful, see\nid. ¶ 27. Although the mother had not made the same winning\narguments, see id. ¶ 29, the Court held that “[t]he rights and\ninterests of the parents and the children are not only substantial\nbut intertwined” in the parental termination proceeding, and the\njuvenile court’s missteps that the father had identified on appeal\n“may bear significant consequences not just for the parents but for\ntheir children,” id. ¶ 33. Accordingly, the Court held “that the\nmother’s briefing decisions should not foreclose her from\nparticipating in the case on remand” and that “[b]oth parents’\nlegal rights should be on the table.” Id. ¶ 34.\n¶51 [CITATION]’s narrow holding is inapplicable to the current\ncase. As the Court’s analysis makes clear, the unique context of\nparental rights termination in which the primary focus is the best\ninterest of the child played a crucial role in that case. Here, no such\nthird-party interest is at stake. Additionally, it was not the error\nof the court that warranted reversal in [CITATION] but the ineffective\nassistance of [CITATION]’s trial counsel—and not Raheem’s. 17 For\n\n17. To be sure, if the trial court, the State, or some other actor had\nmade an error affecting the rights of both co-defendants and\nresulting in an unfair trial, Raheem may potentially have been\nentitled to raise that claim of error in his own appeal. In such a\nsituation, the law of the case doctrine may well apply to ensure\nthe same result in both appeals. See [CITATION], 969 P.2d 1053,\n1054 (Utah Ct. App. 1998) (holding that because the appellant’s\nco-defendant received reversal on the “identical facts and legal\nquestion” the appellant raised, the law of the case doctrine\napplied, likewise entitling the appellant to a reversal). But here, as\nRaheem acknowledged during oral argument, see supra note 16,\nalthough there are some similarities, the underlying facts and\nclaim of ineffective assistance he raises are distinct from the facts\nand claim of ineffective assistance that merited reversal in [CITATION].\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nthese reasons, [CITATION] does not mandate reversal of Raheem’s\nconviction.\n¶52 In sum, because Raheem’s fairness argument has no basis\nin law, it necessarily fails. The reversal of [CITATION]’s conviction in a\nprior appeal has no binding effect on Raheem’s case.\n III. Improper Statements and Hearsay\n¶53 Raheem argues that the trial court erred in denying his\nmotion for a new trial in which he claimed that improper\nstatements by the prosecutors and inadmissible hearsay\nstatements by the State’s witnesses deprived him of a fair trial. We\nfirst recount each of the challenged statements and then proceed\nto address the merits of Raheem’s argument.\nA. Additional Facts\n¶54 First, during jury selection, the two prosecutors in the case\nintroduced themselves to the potential jurors as members of a\n“special victims team” and a “special victims unit.” Shortly\nafterwards, during a sidebar conversation, the defense objected to\nthe prosecutors’ use of the word “victim” and asked the trial court\nto either “[c]raft some sort of limiting instruction, or grant . . . a\nmistrial.” The court told the jury that the prosecutors’ “use of the\nword victim is not proper” because “[i]t is inconsistent with the\npresumption of innocence” and instructed the jury “not to\nconsider the use of that word.”\n¶55 Second, during opening statements, one of the prosecutors\ntold the jury that Raheem ran the hookah lounge “and it had\nteenage girls, 18-years-old, who would work there without pay,\nbut would receive hookah or tobacco instead of being paid.” The\ndefense objected to this statement, arguing that the defense had\nno prior notice of this “other acts” evidence. See [CITATION]. The trial court then instructed the jury “to disregard\nreferences to any sort of issue about whether there were\nindividuals smoking underage in this establishment, or whether\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nthere were any sort of labor violations with respect to individuals\nworking in this establishment without pay.”\n¶56 Third, at the beginning of Coworker’s testimony, the State\nasked, “What’s your understanding of why you’re here to\ntestify?” Coworker responded, “I’m here to testify as a witness\nagainst two individuals that had raped [Shannon].” The defense\nobjected and moved for a mistrial, arguing the comment\nimpermissibly bolstered Shannon’s credibility and was\nprejudicial. The court asked whether Coworker’s expected\ntestimony regarding Shannon’s excited utterances after she exited\nthe storage closet would mitigate the prejudice. See [CITATION] R. 803(2)\n(exempting from the rule against hearsay “[a] statement relating\nto a startling event or condition, made while the declarant was\nunder the stress of excitement that it caused”). The defense\nrecognized that the testimony may “correct the mistake” but\nargued that the cumulative effect of the comment and the\nprosecutors’ prior statements that they were members of a\n“special victims team” warranted a mistrial. The court took the\nmotion for mistrial under advisement, but in the interim, it\ninstructed the jury to disregard the comment because “the\nquestion of whether or not rape occurred in this case is the\nultimate issue in the case that you have to decide as the jury” and\nCoworker’s “comment on it is not proper for you to consider.”\nThe court then asked whether the members of the jury understood\nthe instruction and whether they believed they could follow it.\nThe jurors indicated in the affirmative. The court then asked any\njurors who “doubt[] their ability to follow that instruction and\ndisregard” Coworker’s opinion on the matter to raise a hand.\nNone of the jurors raised their hand.\n¶57 Fourth, the detective who convinced Shannon to go to the\nhospital testified that he had been dispatched “for a possible\nrape.” The defense lodged an objection, which the court sustained\nand instructed the jury to disregard the statement “for the same\nreason that I gave you the instruction before.” Namely, “[i]t’s the\nultimate issue in the case about whether or not a rape occurred.\nThat’s for you to decide, not for this witness or any other specific\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nwitness to say.” The court again asked the jurors whether they\ncould “all follow that instruction to disregard [the detective’s]\nanswer.” All the jurors again indicated in the affirmative. A little\nlater, the detective testified that when he arrived at the hospital,\nthe examining nurse and a “victims advocate” were already there.\nThe defense did not object to the use of the word “victim” at this\ntime.\n¶58 Fifth, during cross-examination of Raheem’s friend, in the\ncontext of asking about who had subpoenaed him, the State\nasked, “But who [are] you testifying for?” The defense objected.\nThe court sustained the objection and told the jury, “The witness\nwas subpoenaed to testify. He’s not testifying for anyone or\nagainst anyone. He’s just providing his testimony. Does\neverybody understand that?” The jurors again responded in the\naffirmative.\n\n[SEGMENT 13]\n¶59 During a recess, the court heard further argument on the\nmistrial motion. 18 By that point, both Coworker and Friend had\ntestified as to Shannon’s excited utterance when she exited the\nstorage closet that she had just been raped. See [CITATION]. The\ndefense nonetheless argued that Coworker’s comment and the\ntestimony about Shannon’s excited utterances “are two different\nthings” because “[i]n the one case she’s offering it and asserting it\nas a fact, in the other she’s talking about things . . . that were told\nto her.” The defense also argued that the detective’s mention of a\n“victims advocate,” the State’s use of the word “victim” during\nintroductions, and Coworker’s “rape” comment all “cumulatively\nadd[] up to a mistrial.”\n¶60 In response, the State asserted that “no one has called\n[Shannon] a victim,” rather the prosecutors’ and the detective’s\nuse of the word “victim” was in reference to job titles and\ndescriptions. Indeed, the State pointed out that even Counsel at\n\n18. At this point, because Raheem’s friend had not yet been called\nto the stand, the objected-to interaction in which the State asked\nhim who he was testifying for was not discussed.\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\none point referenced a “victim advocate” during a\ncross-examination. Concerning Coworker’s statement, the State\nargued that it was not solicited and that any potential prejudice\nwas “cured” by admissible testimony of Shannon’s excited\nutterance when she exited the storage closet that she had just been\nraped and by the court’s curative instruction. Additionally, the\nState argued that the detective did not indicate that a rape had\noccurred because he said “possible rape.”\n¶61 The trial court denied the motion for mistrial, largely\nagreeing with the State’s arguments. The court stated that it held\noff on ruling on the motion when first lodged at the onset of\nCoworker’s testimony because it wanted “to see how the\ntestimony unfolded.” The court acknowledged that the State’s\nquestion that prompted Coworker’s objectionable comment “was\nprobably not the best question for the prosecution to ask of a lay\nwitness” and that the comment was “potentially inflammatory.”\nBut the court pointed out that the jury heard admissible evidence\nof Shannon’s excited utterance that she had been raped.\nAdditionally, the jury received a curative instruction, and the\ncourt “carefully observed the jurors” while giving the instruction\nand was convinced that they understood the instruction. It\ntherefore held that any prejudice from Coworker’s comment was\nmitigated. The court further held that the detective’s reference to\na “potential rape” was not prejudicial because it was no secret that\nthe case was “about an alleged rape.” And, in any event, the court\nstated that it “gave careful curative instructions that” it\n“believe[d] the jury understood.”\n¶62 Concerning the use of the word “victim,” the court first\nnoted that although the State was correct that no one had called\nShannon a victim and that the term was used in the context of\ndiscussing job titles, this was nonetheless “problematic when\nthey’re injected into a proceeding.” See [CITATION] (“[U]se of the term ‘victim’ usually will\nbe inappropriate when the defendant defends the case on grounds\nthat no crime was committed and, concomitantly, that there is no\nvictim in the case at all.”). Cf. [CITATION]\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n449 P.3d 39 (“We . . . recognize the gravity of referring to witnesses\nas victims during a trial.”). But the court held that in light of the\ncurative instruction it gave during jury selection, which it\nbelieved the jury understood, the use of the word “victim” was\nnot prejudicial. See [CITATION] (stating that\ncurative instructions are “a tool that can sometimes, depending\nupon the context in which the statements were made, mitigate any\nprejudice caused by the use of the term ‘victim’”) (quotation\nsimplified). And although the defense did not object immediately\nafter the detective referenced a “victims advocate,” the court\nstated it believed that the jury understood the prior curative\ninstruction likewise applied to that statement.\n¶63 Raheem renewed this argument in his motion for a new\ntrial, in which, in addition to the improper statements he raised in\nhis motion for mistrial, he argued that a new trial was warranted\ndue to the State’s discussion of “other acts” evidence during\nopening statements and due to the State’s improper question to\nRaheem’s friend during cross-examination. The court denied the\nmotion. Concerning the prosecutors’ reference to a “special\nvictims team” and a “special victims unit” during jury selection\nand to other acts evidence during opening statements, the court\nexplained, “The court gave curative jury instructions for each of\nthese statements, and [it] found the jury was sophisticated,\nunderstood the court’s instructions, and indicated a willingness\nto abide by the instructions. Therefore, any error was cured at\ntrial.” Similarly, regarding the State’s improper question to\nRaheem’s friend, the court stated that it “gave a curative\ninstruction with regard to the State’s implication [the friend] was\ntestifying for a particular party, and any error with regard to him\nwas rectified” and “was not prejudicial.” Lastly, the court stated\nthat “with regard to references to ‘victim’ and ‘rape,’ throughout\nthe trial, there were very few and the court gave curative\ninstructions to the jury instructing it to disregard the references.\nThe jury understood the instructions and agreed to disregard the\nstatements.”\n\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nB. The Merits\n¶64 Raheem argues that “the cumulative effect of the improper\ntestimony should undermine the court’s confidence in the\noutcome” because “the curative instructions were not adequate to\nmitigate the cumulative prejudice of the many errors.”\nReferencing Shannon’s “credibility issues,” 19 he asserts that “the\njury was left with much it was instructed to disregard and little it\ncould legitimately rely on to convict.” He also contends that “the\ninadmissible evidence served to unjustifiably bolster the State’s\ncase and credibility of [Shannon’s] accusation.”\n¶65 “Because of the advantaged position of the trial judge to\ndetermine the impact of events occurring in the courtroom on the\ntotal proceedings, an appellate court will find an abuse of\ndiscretion only when the trial court is plainly wrong in that the\nincident so likely influenced the jury that the defendant cannot be\nsaid to have had a fair trial.” [CITATION] Here, we cannot say that the\ntrial court abused its discretion in denying the motion for a new\ntrial.\n¶66 As Raheem points out, in holding that the errors were not\nprejudicial, the court relied heavily on the curative instructions it\nissued following each objection to the improper statements. “We\nnormally presume that a jury will follow an instruction to\ndisregard inadmissible evidence inadvertently presented to it,\nunless there is an overwhelming probability that the jury will be\n\n19. In [CITATION], cert. denied,\n[CITATION], we held that “the State’s prospects for\na conviction primarily rested on [Shannon’s] testimony,” id. ¶ 58,\nand that her credibility was “problematic” due to “her inability to\nremember most of the specifics of the assault without the\nprosecutor’s direction and her changing story about the soda,” id.\n¶ 45. See id. ¶ 44 (detailing Shannon’s memory issues and\ninconsistent accounts regarding the allegedly spiked soda she\nsaid she consumed).\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nunable to follow the court’s instructions, and a strong likelihood\nthat the effect of the evidence would be devastating to the\ndefendant.” [CITATION] (quotation simplified). See [CITATION] (“Curative instructions are ordinarily presumed on\nappeal to be effective, absent a substantial and prejudicial\nunderlying error or irregularity.”) (quotation simplified), cert.\ndenied, [CITATION]. But see [CITATION] (“This is not to say that curative instructions are a ‘cure-all.’ Some\nerrors may be too prejudicial for curative instructions to mitigate\ntheir effect, and a new trial may be the only proper remedy.”).\n¶67 With the exception of the detective’s single mention of the\n“victims advocate,” the court “gave a forceful curative instruction\nat the time [each] error occurred.” See [CITATION]. The\ncourt not only gave the instruction, it explained why the\ninstruction was being given and asked the jurors to indicate\nwhether they understood the instruction and were able to abide\nby it. Concerning the “victims advocate” reference, the jury had\nalready received the relevant curative instruction only a few\nminutes earlier when the same detective stated “potential rape,”\nas well as when the State referenced a “special victims team”\nduring jury selection. There was also “nothing to indicate that the\njury was unable to follow the court’s instruction to disregard the\ninadmissible evidence that had been inadvertently presented to\nit.” See id. To the contrary, the court “found the jury was\nsophisticated, understood the court’s instructions, and indicated\na willingness to abide by the instructions.” See [CITATION] (acknowledging “the advantaged position of the trial\njudge to determine the impact of events occurring in the\ncourtroom on the total proceedings”) (quotation simplified).\n\n[SEGMENT 14]\n¶68 Furthermore, we are not convinced that the cumulative\neffect of the improper statements was so “substantial and\nprejudicial” as to undermine the effectiveness of the curative\ninstructions. [CITATION] (quotation simplified).\nAs the trial court noted, the potential prejudice of most of the\nstatements was significantly decreased by other factors. Most\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nnotably, the prejudice of Coworker’s improper statement was\nsignificantly decreased when she and two other witnesses\nprovided admissible testimony regarding Shannon’s allegations\nof rape immediately after she exited the storage closet.\nAdditionally, the prejudicial impact of the detective’s reference to\na “potential rape” is questionable, given the use of the qualifying\nword “potential” and the jury’s general understanding that it was\ntasked with determining whether Raheem and Salazar sexually\nassaulted Shannon in the storage closet. Such an understanding\nlikewise minimized the prejudicial impact of the State’s and the\ndetective’s references to “victim,” as they never directly called\nShannon a “victim” but rather were using the word when\nproviding titles and descriptions of their jobs.\n¶69 Additionally, the State’s improper comment during\nopening statement about the potential underage smoking and\nlabor violations at the hookah lounge was rather mild in\ncomparison to the graphic allegations the jury later heard. See\n[CITATION] (stating that\nthe victim’s improper statement that the “defendant was shot\nmight have stood out more prominently in other trials” but “in\nthe current case the highly graphic and disturbing nature of the\nevidence presented to the jury over the course of six days . . .\novershadowed” the improper statement), cert. denied, [CITATION]. Thus, even considered cumulatively and in light\nof issues with Shannon’s credibility, we cannot say that the\nprejudicial effect of the errors was so great as to rebut the\npresumption that the jury followed the trial court’s curative\ninstructions.\n¶70 For these reasons, the trial court did not abuse its discretion\nwhen it denied the motion for a new trial.\n\n CONCLUSION\n¶71 The State presented sufficient evidence at trial to prove that\nRaheem acted, at the very least, recklessly as to Shannon’s\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nnonconsent. Under the circumstances of this case, Counsel was\nnot ineffective for not asking a follow-up question regarding\nwhether anyone could corroborate Raheem’s account of\nShannon’s post-assault behavior toward him. Lastly, the trial\ncourt did not abuse its discretion when it denied the motion for a\nnew trial. 20\n¶72 Affirmed.\n\n\n20. Raheem also argues that the cumulative effect of the three\nerrors he raises on appeal was prejudicial. “A reviewing court will\nreverse a jury verdict under the cumulative error doctrine only if\nthe cumulative effect of the several errors undermines confidence\nthat a fair trial was had.” [CITATION] (quotation simplified). Because there are no errors to\naccumulate here, this argument necessarily fails. See [CITATION] (stating that\nthe cumulative error “doctrine will not be applied when claims\nare found on appeal to not constitute error, or the errors are found\nto be so minor as to result in no harm”) (quotation simplified);\n[CITATION] (“Because\nwe conclude that there are no errors to accumulate here, the\ncumulative error doctrine is inapplicable in this case.”) (quotation\nsimplified).\n\n 20200720-CA\n\n UT App 29 \n2024 UT App 16\n\n THE UTAH COURT OF APPEALS\n JOSEPH EARL LAMB,\n Appellee,\n v.\n SONYA ELIZABETH LAMB,\n Appellant.\n Opinion\n No. 20210787-CA\n Filed February 8, 2024\n Third District Court, Salt Lake Department\n The Honorable Robert P. Faust\n No. 174904728\n Mary Deiss Brown, Attorney for Appellant\n Gregory G. Skordas, Gabriela Mena, and Allison R.\n Librett, Attorneys for Appellee\n JUDGE DAVID N. MORTENSEN authored this Opinion, in which\n JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.\nMORTENSEN, Judge:\n¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was\ndecided at a bench trial. [CITATION] As relevant here, Joseph was awarded\ncustody of their children, ownership of a family business, and half\nthe equity of the marital home. Sonya now challenges the court’s\ncustody determination and the award of the business. She also\nchallenges the manner in which the court determined the equity\nin the marital home. We affirm the district court’s rulings in all\naspects.\n\n\n[CITATION] Because the parties share a surname, we refer to them by their\ngiven names. [CITATION]\n\n BACKGROUND 2\n¶2 Joseph and Sonya married in 2007 and separated in July\n2017. We address separately each of the district court’s\ndeterminations with which Sonya takes issue.\n The Custody of the Children\n¶3 Joseph and Sonya have three children, all of whom\nwere minors when they divorced in August 2021. In\nNovember 2017, at a hearing for temporary orders, Sonya’s\ncounsel told the court that Sonya had been the children’s primary\ncaregiver “until recently.” Sonya also admitted that she was\narrested in July 2017 and was facing charges for possession and\nuse of drugs, but she asserted that she had “taken responsibility,”\nhad “stopped using drugs,” was “sober and more than capable of\ncaring for the children and continuing on as their primary\ncaregiver,” and had “been attending Narcotics Anonymous and\nAl-Anon meetings.” Sonya asserted that Joseph had a “serious\ndrug addiction problem.” Joseph claimed that Sonya had\nvacated the marital home shortly before her arrest, and he\nrevealed that he obtained a protective order against her. The court\nacknowledged the allegations both sides made against the\nother but noted that Joseph currently had the children in his care\nand was living in the marital home. The court then determined\nthat Joseph should maintain “custody of the children on a\ntemporary basis.”\n\n2. As addressed below, neither party’s briefs included sufficient\ncitations to the record. This shortcoming has necessitated us\ncombing the record to establish some semblance of a background,\nsomething we are not obligated to do. See [CITATION] (explaining the parties’ duty to cite\nthe record in appellate briefs), cert. denied, [CITATION]. Accordingly, our recitation of the facts is necessarily\nminimal as we limit it to what is essential to resolve the issues on\nappeal.\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\n¶4 Apparently, the children remained in the temporary\ncustody of Joseph until the parties’ divorce trial, where the court\nreceived the testimony of a “reunification therapist” (Family\nTherapist), who had been hired by the parties after the custody\nevaluator had been “unable to perform an evaluation due to the\nchildren spending less than minimum time” with Sonya.\n¶5 Based on the testimony of Family Therapist, which we\nrecount when relevant in our analysis below, the court found that\n“unification” between Sonya and the two older children was\n“lacking” because of acrimonious relationships. The court noted\nthat Family Therapist had testified that progress in reunification\ntherapy would “influence what possible custody” Sonya might\nhave in the future relative to the older children. The court\ndetermined that it was “in the best interest of the children that\nreunification therapy” continue to allow Sonya the opportunity\n“to reunify her relationship with the children.”\n¶6 Accordingly, the court found that it was in the children’s\nbest interest that Joseph be “awarded sole physical custody and\nfinal decision making authority,” with both parties being\nawarded joint legal custody. With regard to the youngest child,\nthe court awarded supervised parent-time to Sonya one night a\nweek. The court awarded Sonya no parent-time with the older\ntwo children. The court noted that supervised parent-time for\nSonya would “be flexible” and might “increase after the current\nreunification issues” and Sonya’s “medical issues” were\naddressed. The court also stated that Sonya’s “non-use of\ncannabis” needed to be verified because marijuana use was “a\ncontributing factor” that brought on her mental health episodes.\n The Business\n¶7 During their union, the parties were financially supported,\nat least in part, by a business that distributed supplies to gas\nstations. During the divorce proceedings, Joseph maintained that\nhe was in the process of purchasing the business from his father\nbut that he did not have the money to pay for it. Joseph explained\n\n [CITATION] Lamb v. [CITATION]\n\nthat he drew a salary for his work with the business. In contrast,\nSonya maintained that she and Joseph agreed to buy the business\nin 2010 and that they completed paying off the business in 2016.\nSonya claimed that she and Joseph signed a document “to take\nover the business” but that she did “not have the document.”\nSonya did produce a different document that explicitly stated the\nbusiness was being sold only to Joseph.\n\n[SEGMENT 15]\n¶8 The district court awarded the business to Joseph, along\nwith all its debts and obligations. In addition, the court,\napparently recognizing that the business was possibly still owned\nby Joseph’s father, ordered that any money Joseph borrowed\nagainst the marital home to purchase the business would “not be\nused to reduce the total equity in the home” so as to reduce\nSonya’s share of the home’s value. In making this award to\nJoseph, the court was clear that it was basing its decision “on the\ntestimony” provided by Joseph.\n The Marital Home\n¶9 Based on a Zillow estimate 3 provided by Sonya, the court\ndetermined the value of the marital home to be $998,659, but the\nequity in the home was reduced by mortgages and liens on the\nproperty. Joseph testified that three mortgages, totaling $402,000,\n\n\n3. Neither party produced an appraisal of the home or an\nappraisal witness at trial, leading the court to ask the parties,\n“Does anybody have any valuation [of the home] at all?” Sonya’s\ncounsel answered, “Well, we could do it [with] Zillow.” At this\npoint, while in court, Sonya’s counsel looked up the value and\nreported, “According to Zillow as of today, the estimated value is\n$998,659.” No objection was lodged at trial to the court receiving\nthis information. “Zillow is a commercial website that provides,\namong other things, an estimated market value for many\nresidential properties.” [CITATION]\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\nwere on the property. 4 And the home was additionally\nencumbered by eleven liens. Two of these liens, totaling $2,414,\nwere attributed to Sonya and Joseph. The remaining nine, totaling\n$256,521, were tax liens and civil judgments incurred by the\nprevious owner of the home. 5\n¶10 The court received evidence that when Joseph and Sonya\npurchased the home in November 2009, it was subject to some\nexisting debt. Joseph testified as follows:\n Counsel: “Was there anything particular about that\n purchase [of the home]?”\n Joseph: “We didn’t have the credit or the means to get into\n a home at the time, so my brother is a real estate agent\n and he’s good friends with [the previous owner] and\n said, ‘Hey, this house is available. If you like it, I can\n probably get you into it.’ And so we took him up on\n that and (inaudible) that we had to take on (inaudible).”\n Counsel: “So there were other debts on that house when\n you purchased it?”\n Joseph: “Yes. . . . . I didn’t know about all of them at the time,\n but yes.”\n Counsel: “What are those debts?”\n\n\n4. This number reflected the amount owing at the time of\nseparation. At the bench trial, Joseph testified that the amount was\ncurrently about $298,000.\n5. Joseph’s counsel provided a LexisNexis report as evidence of\nthe liens on the home. This report was admitted as evidence with\nno objection.\n\n 20210787-CA\n\n UT App 16 [CITATION]\n Joseph: “There’s a lot of tax liens from [the previous owner]\n throughout the years. There’s a couple of (inaudible)\n from Sonya and I, medical bills that weren’t paid. . . .”\n Counsel: “And have you paid off the tax liens? The liens on\n the house?”\n Joseph: “No.”\nThus, in a somewhat unusual arrangement, the parties appear to\nhave purchased the home subject to certain liabilities, even if they\ndid not know the precise extent of those liabilities. Presumably,\nthese liabilities would have been offset by a reduction in the\npurchase price, making the home more affordable.\n¶11 Adding the mortgages and liens together for an amount of\n$660,935, the court determined that equity in the home was\n$337,724. The court ordered Joseph to pay Sonya $168,862 as her\nshare of that equity.\n¶12 Sonya appeals.\n\n ISSUES AND STANDARDS OF REVIEW\n¶13 Sonya identifies multiple ways in which she believes the\ndistrict court erred. But “[f]or the sake of brevity,” we\n“consolidate these grounds” and “set out in the opinion only so\nmuch . . . as we deem necessary to a decision of the questions\ninvolved herein.” [CITATION]\n¶14 Sonya first contends that the district court abused its\ndiscretion in making custody and parent-time decisions because\nit lacked sufficient information to make those decisions. “We\nreview custody determinations deferentially, and so long as the\ndistrict court’s discretion is exercised within the confines of the\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\nlegal standards we have set, and the facts and reasons for the\ndecision are set forth fully in appropriate findings and\nconclusions, we will not disturb the resulting award.” [CITATION].\n¶15 Sonya next contends that the district court’s findings were\n“entirely inadequate to explain” its reasoning for awarding\nownership of the business to Joseph. “We review the legal\nsufficiency of factual findings—that is, whether the trial court’s\nfactual findings are sufficient to support its legal conclusions—\nunder a correction-of-error standard, according no particular\ndeference to the trial court.” [CITATION] (cleaned up).\n¶16 Lastly, Sonya argues that the district court’s “procedures\nand decisions regarding the division of equity in the marital home\nwere illogical and manifestly unjust.” “Determining and\nassigning values to marital property is a matter for the trial court,\nand an appellate court will not disturb those determinations\nabsent a showing of clear abuse of discretion.” [CITATION] (cleaned up), cert. denied, [CITATION].\n\n ANALYSIS\n I. A Note on Briefing\n¶17 Sonya’s briefing is plagued by significant deficiencies and\ndoes not comply with the Utah Rules of Appellate Procedure for\nappropriate briefing. First, excluding the cases cited for the\nstandards of review, Sonya cites only a single case in her opening\nbrief, and she does so in a perfunctory fashion—making only a\nshallow attempt to explain its relevance to the issues. Sonya\ncontinues this trend in her reply brief, where she cites no cases at\nall. In this regard, she falls far short of appellate expectations. “A\nparty may not simply point toward a pile of sand and expect the\ncourt to build a castle. In both district and appellate courts, the\ndevelopment of an argument is a party’s responsibility, not a\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\njudicial duty.” [CITATION];\nsee also Utah R. App. P. 24(a)(8) (“The argument must explain,\nwith reasoned analysis supported by citations to legal authority\nand the record, why the party should prevail on appeal.”); id. R.\n24(b)(3).\n¶18 Second, in her statement of the case, Sonya fails to include\na single citation to the record. This is in contravention of our\nclearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of\nthe case must include, with citations to the record: (A) the facts of\nthe case, to the extent necessary to understand the issues\npresented for review; (B) the procedural history of the case, to the\nextent necessary to understand the issues presented for review;\nand (C) the disposition in the court or agency whose judgment or\norder is under review.” (emphasis added)). We note that Sonya\nsomewhat more adequately cites the record in the argument\nsection of her brief, but that is not what the Utah Rules of\nAppellate Procedure require, and by ignoring the rules to suit her\nbriefing preferences, she does little to bolster judicial efficiency. 6\n¶19 We point out these deficiencies not to ridicule, disparage,\nor shame counsel, but to provide warning that future briefing of\nthis nature will likely be deemed inadequate and that any\narguments on the merits may not be substantively considered by\nthis court. This court receives hundreds of briefs each year. They\nvary in quality and in their adherence to the rules. We recognize\nthat members of the bar have a lot on their plates and occasionally\nmiss a typo or overlook a citation. But wholesale disregard of\nbriefing rules is quite beyond the pale and can have unwelcome\n\n6. Nor did Joseph’s counsel provide a single citation to the record\nin his brief. This shortcoming is most unhelpful. While an appellee\nis not required to file a brief, see, e.g., [CITATION], we observe that if\na brief is filed, it would behoove counsel to provide record\ncitations. After all, and at the risk of stating the obvious, record\ncitations are required because in their absence it’s difficult, and at\ntimes impossible, to figure out what the parties are referencing.\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\n[SEGMENT 16]\n\nconsequences for attorneys (and their clients) who choose this\nrisky path. See [CITATION] (“We . . . retain discretion to not address an\nargument that is inadequately briefed.” (cleaned up)); accord [CITATION]. And we hasten to point out that\nthe risk of ignoring briefing requirements should come as no\nsurprise to any attorney in Utah owing to our multiple references\nto the issue over the years. See [CITATION] (stating that the merits of a dispute need not be\nreached if an appellant “has not supported the facts set forth in [a]\nbrief with citations to the record” as required by rule 24(a)(6) of\nthe Utah Rules of Appellate Procedure); [CITATION] (“We have routinely refused to\nconsider arguments which do not include a statement of the facts\nproperly supported by citations to the record.”); [CITATION] (“If a party\nfails to make a concise statement of the facts and citation of the\npages in the record where those facts are supported, the court will\nassume the correctness of the judgment below.”). That we have\nexercised our discretion to address the merits of the issues on\nappeal here should not be taken as an imprimatur sanctioning\ninadequate briefing but as a conduit to raise awareness of the risk\nof ignoring the rules.\n¶20 We take this occasion to recall the advice offered by our\nsupreme court several decades ago:\n If the questions involved in a case are of sufficient\n importance to justify asking this court to decide\n them, they are worthy of the careful consideration\n of counsel presenting them. It is the duty of\n attorneys practicing in this court to present to the\n court the authorities supporting their views and to\n assist the court in reaching a correct conclusion.\n[CITATION] (cleaned up). With\nthat, we remind counsel of their responsibility to assist the\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\njudiciary in advancing jurisprudence through diligent advocacy,\nadherence to our rules, and competent representation.\n II. Custody and Parent-Time\nA. Disclosure\n¶21 Sonya argues that the district court erred in admitting\nFamily Therapist’s testimony when Joseph had not timely\ndisclosed him as an expert witness pursuant to rule 26 of the Utah\nRules of Civil Procedure, which requires disclosure “within 14\ndays after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i).\nSonya’s briefing on this point leaves much to be desired. She\nentirely ignores what happened at trial, instead substituting her\nown retrospective take on what she believes should have\nhappened without attempting to explain why her timeliness\nargument should now be considered. Providing some persuasive\ncaselaw—which may or may not exist—would have gone far to\nsupport her argument. But like the rest of her briefing, this part is\ninadequate.\n¶22 A review of the record shows that Sonya did not object to\nFamily Therapist’s testimony on the grounds of untimely\ndisclosure. Instead, Sonya argued that Family Therapist had “far\nexceeded any kind of mandate,” that he had not signed\nconfidentiality waivers, and that allowing his testimony created\npatient privacy and ethical violations. In her objection at trial, rule\n26 was mentioned only in passing and not in a way that would\nsuggest she was objecting on timeliness grounds. It certainly\nwould not have been clear to opposing counsel that a rule 26\ntimeliness issue was being raised such that he would have known\nto argue a harmlessness or good-cause defense for the failure to\ndisclose, which would have been an easy argument to make given\nthat both Joseph and Sonya had jointly retained Family Therapist\nand Sonya knew about Family Therapist several years before trial.\nAnd it would not have been clear to the district court that it was\nbeing asked to rule on a timeliness-based objection. For these\nreasons, Sonya did not preserve any such objection for appellate\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\nreview. See [CITATION] (“It is\nwell established that we will not address the merits of an\nunpreserved issue absent a showing that an exception to the\npreservation rule applies.”).\nB. Hearsay\n¶23 Sonya additionally argues that Family Therapist’s\ntestimony, insofar as he testified as a fact witness, “was\ninadmissible hearsay and based entirely on his conversations with\nthe parties and their children as their reunification therapist.”\nSonya’s hearsay argument is difficult to follow and poorly\nbriefed. Instead of analysis in support of her hearsay argument,\nshe provides scant and unsupported assertions.\n¶24 Sonya objected below to Family Therapist’s testimony on\nthe grounds that it was hearsay. But the court ruled that it was not\nhearsay, concluding that Family Therapist’s testimony was not\noffered “for the truth of the matter asserted.” Rather, the court\nruled that the “focus of [the] questioning” was, first, to allow the\ncourt “to find out how [the children were] doing, if they’re\ncapable of going forward” and, second, to identify the present\n“obstacles” to “structuring visitation with [Sonya].” On appeal,\nSonya makes no attempt to engage with the court’s reasoning,\ninstead limiting her analysis to a blanket assertion that “it [was]\nevident” Family Therapist was “allowed to testify as an expert,\noffering hearsay, opinions and recommendations in [a] manner\nthat simply is not permitted by the Rules of Civil Procedure.”\nSuch superficial and undeveloped argument is simply not\npersuasive, most especially because it does not address the\nalleged error in the court’s reasoning. It is well settled that\nappellants who fail to “address the district court’s reasoning” also\nfail to carry their “burden of persuasion on appeal.” See [CITATION]; see also\n[CITATION].\n\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\nC. Custody Factors\n¶25 Sonya next argues that the court did not address the\ncustody factors outlined in section 30-3-10 of the Utah Code,\nmaking its custody findings insufficient. More specifically, Sonya\nargues that the court’s factual findings were deficient due to the\ncourt’s reliance on the testimony of Family Therapist in making\nthose findings.\n¶26 Section 30-3-10 states that in “determining any form of\ncustody and parent-time . . . , the court shall consider the best\ninterest of the child and may consider . . . other factors the court\nfinds relevant,” including factors for each parent articulated in the\ncode. Utah Code § 30-3-10(2) (emphasis added). These factors a\ncourt may consider are “not on equal footing.” [CITATION]. Instead, “it is\nwithin the trial court’s discretion to determine, based on the facts\nbefore it and within the confines set by the appellate courts, where\na particular factor falls within the spectrum of relative importance\nand to accord each factor its appropriate weight.” Id. (emphasis\nadded). “And where significant evidence concerning a particular\nfactor is presented to the district court, findings that omit all\ndiscussion of that evidence must be deemed inadequate.”\n[CITATION]. Thus, to\n“ensure that the trial court’s custody determination, discretionary\nas it is, is rationally based, it is essential that the court set forth in\nits findings of fact not only that it finds one parent to be the better\nperson to care for the child, but also the basic facts which show\nwhy that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).\n¶27 Here, the factors about which the court received significant\nevidence concerned Sonya’s ability to function as a parent, which\nthe court received as testimony from Family Therapist. As we\nhave explained above, Sonya’s challenges to the admissibility of\nFamily Therapist’s testimony fail, and we accordingly conclude\nthat the district court acted well within its discretion in relying on\nhis testimony.\n\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\n¶28 Regarding Sonya’s ability to parent the two older children,\nFamily Therapist testified that they were “very angry” with Sonya\nand “announced that they would never see or talk to her again.”\nTheir anger was due to their religious sensibilities and Sonya’s\nannouncement that she was pregnant by a man other than their\nfather during the pendency of the divorce.\n¶29 With regard to Sonya’s parenting, Family Therapist stated\nthat the youngest child was very frightened after “his last visit\nwith [Sonya] when she was struggling psychiatrically.”\nMoreover, Family Therapist also testified the youngest child was\nbeginning to see himself as Sonya’s “partner,” resulting in the\nchild “becoming parentified.” 7\n¶30 Family Therapist further indicated that while he was\nunaware of Sonya’s “current condition or functioning,” Sonya\nhad been “hospitalized and diagnosed with some issues.” He\nasserted that “safety” needed to be addressed, meaning that\nSonya required a psychiatric evaluation to demonstrate that her\n“situation” was “under control.” He also indicated that Sonya\nneeded to work on “being forthright with medications.” Sonya,\nby her own admission, had “suffered an isolated manic episode”\nrelated to bipolar disorder and “called the police for assistance”\nbecause she was suffering from “visual and auditory\nhallucinations.”\n\n[SEGMENT 17]\n¶31 Sonya’s briefing on this point misses the mark because it\nentirely relies on the assumption that Family Therapist’s\ntestimony was inadmissible, an assumption we conclude is\n\n7. “Parentification is often referred to as growing up too fast.\nTypically, it occurs when a child takes on parental responsibility\nfor their siblings or even their parents, taking care of a sibling or\nparent physically, mentally, or emotionally. This can damage a\nchild’s mental well-being and lead to long-term mental health\nconditions such as depression and anxiety.” Amber Felton, What\nIs Parentification, Web MD, https://www.webmd.com/parenting\n/what-is-parentification [https://perma.cc/N6TT-Y7QN].\n\n20210787-CA\n [CITATION]\n\nwithout foundation. See supra ¶¶ 21–24. She does not explain why,\nin light of Family Therapist’s admissible testimony, the court’s\nconsideration of the statutory custody factors was insufficient.\nSonya’s briefing makes no attempt to explain why the court is not\nallowed to rely on the evidence it receives when making custody\ndecisions.\n¶32 Moreover, Sonya does not identify any “significant\nevidence,” see [CITATION], as to the other\nfactors in section 30-3-10 that the court received but left\nunaddressed. Instead, her briefing advances an argument that is\nentirely conclusory and unsupported by record citation or legal\nauthority:\n Although § 30-3-10 gives broad discretion to the\n court as to the relevance and appropriate weight to\n give each factor, the district court in this case simply\n did not have any information that would allow it to\n make findings as to most of the statutory factors. For\n instance, the district court did not know who the\n primary caretaker of the children during the\n marriage was. The district court did not know\n anything about the marriage. The district court\n would not permit any testimony relevant to\n Joseph’s moral character or his history of drug\n abuse and sexual proclivities. The Court would not\n allow any testimony as to Joseph’s inability and\n unwillingness to co-parent with Sonya. At the end\n of the day, the Court simply sidestepped its\n responsibility as an independent factfinder and\n deferred to [Family Therapist].\nThis might be a good argument if Sonya had supported it with\ncitations to the record and to legal authority. As this argument\nstands before us, we are unable to verify what it asserts. But we\nsuspect that Sonya might be indulging in hyperbole here. Indeed,\nSonya’s assertion that “the district court did not know anything\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\nabout the marriage” is patently false. Our review of the record\nindicates that the court, in fact, knew quite a bit about the\nmarriage, such as its financial situation, issues related to the\nchildren, and the problems that led to its demise, to name just a\nfew topics within its familiarity. And with regard to Joseph’s\nalleged use of illegal drugs, we found only one instance\n(subsequently echoed by Sonya’s attorney) in the record where\nSonya asserted before the district court that Joseph had a “cocaine\nhabit.” But the district court was free to “disregard such testimony\nif it [found] the evidence self-serving and not credible,” since the\nfactfinder “is in the best position to judge the credibility of\nwitnesses.” See [CITATION]\n(cleaned up). An isolated allegation made in passing certainly\ndoes not amount to “significant evidence,” see [CITATION]\nespecially given the district court’s role as the\nfactfinder to judge the credibility of witnesses, see [CITATION] And as to the other statutory\ncustody factors that Sonya asserts the court left unaddressed, she\nhas not pointed us to any significant evidence that the court\nreceived with respect to those factors.\n¶33 Thus, unlike the situation in [CITATION], where we concluded\n“that the district court exceeded its discretion by failing to include\nin its findings any discussion of the evidence relating to the abuse\nallegations against [the mother], her alleged neglect of [the child,]\nand her moral character, as well as the effect that evidence had on\nits best-interest analysis,” see [CITATION], here there\nsimply wasn’t significant evidence presented regarding section\n30-3-10’s other custody factors. This lack of evidence—insofar as\nthere was a lack—was not the court’s fault; it was Sonya’s fault\nfor not presenting it. After all, a court cannot be faulted for failing\nto consider evidence that was not presented to it. In contrast,\ngiven the substantial evidence the court did receive about the\nserious mental health issues Sonya faced, we conclude that the\ndistrict court did not abuse its discretion in its consideration of the\nstatutory factors when determining that awarding physical\ncustody to Joseph was in the best interest of the children.\n\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\n¶34 In sum, Sonya has failed to show that the district court\nabused its discretion in accepting and relying on the testimony of\nFamily Therapist in making custody determinations or that the\ndistrict court did not properly address the statutory factors in\ndetermining custody of the children.\n III. Ownership of the Business\n¶35 Both parties agree that the district court concluded that the\nbusiness was not a joint marital asset. The district court awarded\nthe business to Joseph “[b]ased on [Joseph’s] testimony.” Along\nwith awarding the business to Joseph, the court stated that Joseph\nwas “responsible for payment of the purchase price of the\nbusiness.”\n¶36 Sonya’s briefing on this point is challenging because it\nconsists largely of recounting financial matters pertaining to the\nmarriage but unrelated to the ownership of the business. She then\nasserts, with no discernible effort to explain why, that the\n“findings/conclusions were entirely inadequate to explain the\nCourt’s reasoning for giving ownership” of the business to\nJoseph. Her argument is difficult to follow, but its essence, insofar\nas we can tell, appears to be that the court erred in believing\nJoseph’s testimony over hers.\n¶37 We disagree with Sonya that the court erred in crediting\nJoseph’s testimony regarding the ownership of the business over\nSonya’s. Again, the court stated in its factual findings that its\naward of the business to Joseph was “[b]ased on [his] testimony.”\nIn making this credibility determination, the court acted well\nwithin its discretion. “[W]here there exists evidence sufficient to\nsupport a court’s rulings regarding a divorcing couple’s finances,\nthat ruling will be upheld on appeal, even if evidence was\npresented that might have cut the other way.” [CITATION], ¶ 27. This is because “the fact-finder is in the\nbest position to judge the credibility of witnesses and is free to\ndisbelieve their testimony. Even where testimony is\nuncontroverted, a trial court is free to disregard such testimony if\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\nit finds the evidence self-serving and not credible.” [CITATION]; see also [CITATION] (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).\n¶38 Here, the district court was in the best position to judge the\ncredibility of the parties. It clearly found Joseph’s testimony\nregarding the ownership of the business to be more credible.\nSonya has provided no reasoned argument—apart from her\nassertion that she disagrees with it—as to why the district court’s\nconclusion that the business was not marital property was\nerroneous. Accordingly, Sonya has failed to meet her “burden on\nappeal to show that no reasonable person would take the view\nadopted” by the district court, and we therefore conclude that the\ndistrict court did not err in awarding the business, along with its\nliabilities, to Joseph. See [CITATION].\n IV. Equity in the Marital Home\n¶39 Sonya’s final claim is that the district court abused its\ndiscretion in dividing equity in the marital home. “In divorce\n\n8. Sonya also argues that the district court violated her\nconstitutional due process rights by its “ongoing interference”\nwith her counsel’s presentation of her case. Quite frankly, apart\nfrom a litany of complaints about the court requiring counsel to\nkeep her questioning relevant, the contours of her argument on\nappeal are difficult to discern, and she fails to cite a single case in\nsupport of the argument. Accordingly, we decline to consider her\ndue process argument because it is inadequately briefed. See [CITATION] (“The argument must explain, with reasoned\nanalysis supported by citations to legal authority and the record,\nwhy the party should prevail on appeal.”); see also [CITATION] (“The briefing on this claim . . . is inadequate.\n[The appellant’s] briefing on this issue fails to cite any authority\nand makes no attempt to connect the law to the facts of this case.”).\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\n[SEGMENT 18]\nactions, a district court is permitted considerable discretion in\nadjusting the financial and property interests of the parties, and\nits actions are entitled to a presumption of validity.” [CITATION]. Thus, in\nsuch proceedings,\n we will reverse only if (1) there was a\n misunderstanding or misapplication of the law\n resulting in substantial and prejudicial error; (2) the\n factual findings upon which the award was based\n are clearly erroneous; or (3) the party challenging\n the award shows that such a serious inequity has\n resulted as to manifest a clear abuse of discretion.\n Because we can properly find abuse only if no\n reasonable person would take the view adopted by\n the trial court, appellants have a heavy burden to\n show that an alleged error falls into any of these\n three categories.\n[CITATION].\n¶40 Sonya’s claim focuses on three aspects of the court’s\nvaluation of the home: (1) the mortgage amount, (2) the use of the\nZillow estimate, and (3) the amount of the liens on the home. We\naddress each in turn.\n¶41 The Mortgage Amount. Sonya complains that the district\ncourt, based on Joseph’s testimony, should have used $298,000 as\nthe amount owing on the mortgages rather than $402,000, an\nadjustment that would have benefitted her by increasing the\nequity she would have received. “Generally, the marital estate is\nvalued at the time of the divorce decree or trial. However, in the\nexercise of its equitable powers, a trial court has broad discretion\nto use a different date, such as the date of separation, when\ncircumstances warrant. If the trial court uses a date other than the\ndate of the divorce decree, it must support its decision with\nsufficiently detailed findings of fact explaining its deviation from\nthe general rule.” [CITATION]\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\nP.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In\nresponse to Sonya’s motion for amended findings, the court\nexplained, “[Joseph’s] statement of the mortgage balance of\n$298,000 was referring to the total amount of all three (3)\nmortgages. The Court also took that into evidence taking into\naccount that it was [Joseph’s] best estimate according to what his\nmonthly mortgage payments are and how much was deducted\nfrom the principal each month.” We understand this to mean that\nthe court took into consideration that it was through Joseph’s\nextraordinary post-separation payment efforts that the mortgage\namount had been reduced. Moreover, Sonya concedes in her reply\nbrief that it was within the district court’s discretion to use the\nearlier mortgage total. Accordingly, we see no abuse of discretion\nin the court’s use of the date of the separation to determine the\namount of the mortgages.\n¶42 The Zillow Estimate. Sonya next complains that the home\nshould have been valued at about $260,000 more than was\nindicated by the Zillow estimate the court used. The glaring\nproblem with this aspect of Sonya’s complaint is that it was her\ncounsel’s idea to use the Zillow estimate. In open court, her\ncounsel looked up the estimate and announced it to the court. And\nthe court proceeded to base its calculations on the very data\nSonya’s counsel supplied. We simply will not countenance\nSonya’s assertion that the district court erred in proceeding to use\nthe estimate that Sonya herself, through counsel, provided. Sonya\ninvited any error in this regard. See [CITATION] (“Where a party makes an affirmative\nrepresentation encouraging the court to proceed without further\nconsideration of an issue, an appellate court does not consider the\nparty’s objection to that action on appeal.” (cleaned up)). In her\nbriefing on appeal, Sonya points to nothing in the record that\nwould have allowed the court to value the home using anything\nother than the Zillow estimate. Sonya does not challenge that the\ncourt acted on the only information it had and that Sonya herself\nprovided. Accordingly, “given the absence of any expert financial\ntestimony, . . . the paucity of assistance the parties offered the\ncourt,” and the representations made by Sonya’s counsel\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\nregarding the marital home’s value, we conclude that “the court\nin this instance made findings within its discretion and supported\nby the evidence it was given.” [CITATION], ¶ 55.\n¶43 The Liens. Sonya argues that the district court abused its\ndiscretion in counting third-party liens against the equity in the\nhome. Given the evidence the court received, we see no error on\nthe part of the court in this regard. Indeed, there was evidence to\nsupport the court’s determination that the third-party liens\nshould be included in the calculation of the home’s equity. Joseph\ntestified that when he and Sonya purchased the home, they did so\nknowing that they were assuming responsibility for some of the\nprevious owner’s debts. This is an admittedly odd arrangement,\nbut Joseph testified that they were willing to accept it because they\nwere not in a financial position to purchase the home otherwise.\nSonya offered no testimony or other evidence to contradict\nJoseph’s assertion, and she still points to nothing presented at trial\nthat contradicted this evidence. Accordingly, we conclude that the\nfactual findings that included the liability associated with the\nthird-party liens were not clearly erroneous and that the court did\nnot abuse its discretion in calculating the home’s equity.\n\n CONCLUSION\n¶44 Sonya has not demonstrated that the district court abused\nits discretion in its custody determination, in awarding the\nbusiness to Joseph, or in its division of equity in the marital home.\nAffirmed.\n\n\n 20210787-CA\n\n UT App 16 \n2024 UT App 3\n\n THE UTAH COURT OF APPEALS\n BRIAN K. LEWIS,\n Appellant,\n v.\n U.S. BANK TRUST, NA, AS TRUSTEE FOR LSF9 MASTER\n PARTICIPATION TRUST,\n Appellee.\n Opinion\n No. 20220434-CA\n Filed January 5, 2024\n Fourth District Court, Nephi Department\n The Honorable Anthony L. Howell\n No. 180600022\n Stephanie L. O’Brien, Attorney for Appellant\n Heidi G. Goebel, Keith S. Anderson, and Spencer\n MacDonald, Attorneys for Appellee\n JUDGE AMY J. OLIVER authored this Opinion, in which\n JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY\n concurred.\nOLIVER, Judge:\n¶1 After foreclosure was initiated against property he\npurchased in Mona, Utah (the Property), Brian K. Lewis sued the\nforeclosing parties, spurring a host of litigation. Lewis appeals the\ndistrict court’s grant of summary judgment on the quiet title and\nunjust enrichment claims he made against U.S. Bank Trust, NA\n(U.S. Bank). Lewis also appeals the court’s grant of summary\njudgment to U.S. Bank on its claim for judicial foreclosure on the\nProperty and the court’s denial of his rule 60(b) motion for relief\nfrom this portion of the judgment. For the reasons laid out below,\nwe affirm the district court in all respects. [CITATION]\n\n BACKGROUND\n¶2 In 2008, the prior owner (Prior Owner) of the Property\nfinanced his purchase of the Property by executing a\npromissory note and a deed of trust securing the note. The loan\nwas eventually sold to LSF9 Master Participation Trust (LSF9),\nand after several assignments, the deed was assigned to U.S.\nBank, as trustee on behalf of LSF9. Prior Owner defaulted on the\nloan and filed for bankruptcy. Prior Owner’s bankruptcy petition\nwas discharged, and along with it, his personal obligation on the\nloan. 1\n 0F\n\n\n¶3 In April 2010, notice of default on the loan was recorded,\nnoting there had been no payment on the obligation since Prior\nOwner’s default. This notice was later “rescind[ed], cancel[led]\nand withdraw[n]” on May 1, 2014. But a new notice of default was\nentered the same day. A few months later, in August 2014, Prior\nOwner sold the Property to Lewis. Lewis claims he “has\nmaintained” and “put substantial improvements into the\nProperty” since 2014.\n The First Lawsuit\n¶4 In July 2016, Lewis was informed that a nonjudicial\nforeclosure sale of the Property would occur in September.\nLewis filed a complaint against the foreclosing parties in state\ndistrict court, seeking to quiet title and obtain a judgment\npreventing future foreclosure. Lewis argued the foreclosing\n1. Pursuant to rule 201 of the Utah Rules of Evidence and U.S.\nBank’s request, this court takes judicial notice of Prior Owner’s\nbankruptcy proceedings in the United States Bankruptcy Court\nfor the District of Utah, case number 10-23076. See [CITATION].\n\n[SEGMENT 19]\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nparties had failed to foreclose within the statutory period and\nwere no longer entitled to do so. This suit (the First Lawsuit) was\nremoved to the United States District Court for the District of\nUtah. See [CITATION]. The federal district court\ngranted summary judgment in favor of the foreclosing parties,\nconcluding the statute of limitations period began on May 1, 2014,\nand had not run by the time foreclosure proceedings began in\nSeptember 2016. Id. at *1. Lewis appealed this decision to the\nUnited States Court of Appeals for the Tenth Circuit, but the\nappeal was dismissed for lack of prosecution. See [CITATION].\n The Current Lawsuit\n¶5 Days after Lewis’s Tenth Circuit appeal was dismissed, he\nfiled a new complaint (the Current Lawsuit) in state court, this\ntime against U.S. Bank. Lewis again sought to quiet title in the\nProperty and to enjoin U.S. Bank from “asserting any estate, right,\ntitle or interest” in the Property. U.S. Bank removed the action to\nfederal district court. Lewis opposed removal and filed a second\namended complaint in state court. The state court concluded it did\nnot have jurisdiction over the amended complaint as the case had\nbeen removed to federal court, but based on lack of diversity\njurisdiction, the federal court eventually remanded the case to the\nstate court.\n¶6 U.S. Bank then filed a motion to dismiss Lewis’s complaint\nunder rule 12(b)(6) of the Utah Rules of Civil Procedure, arguing\nthe suit was barred by res judicata and failed to state a claim upon\nwhich relief could be granted. Thereafter, the court permitted\nLewis to amend his complaint. Lewis’s third amended complaint\nraised a quiet title claim labeled “Quiet Title—Laches” wherein he\nalleged U.S. Bank or its predecessors in interest had\n“unreasonably delayed enforcing” their rights against the\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nProperty. 2 The complaint also alleged U.S. Bank had been unjustly\nF\n\n\nenriched by Lewis’s maintenance and improvement of the\nProperty.\n¶7 U.S. Bank then filed another motion to dismiss, arguing\nagain that Lewis’s claims were barred by res judicata and were\notherwise meritless. The court agreed that Lewis’s claims for quiet\ntitle and unjust enrichment were barred by res judicata and\ndismissed them because they “could and should have been\nbrought in the earlier lawsuit.” Lewis appealed the dismissal of\nhis claims to this court. We held that “[b]ecause the district court\ncould not decide this issue without considering materials outside\nthe pleadings, the motion to dismiss should have been converted\nto one for summary judgment” and we remanded the case to the\ndistrict court. [CITATION]. Thereafter, U.S. Bank answered Lewis’s third\namended complaint, again arguing his claims were barred by res\njudicata.\n¶8 While the Current Lawsuit was pending, U.S. Bank had\ninitiated a judicial foreclosure of the Property. On U.S. Bank’s\nmotion, the court consolidated the judicial foreclosure action into\nthe Current Lawsuit. On April 30, 2020, the May 1, 2014, notice of\ndefault was cancelled.\n¶9 U.S. Bank then simultaneously filed two motions for\nsummary judgment. Though the motions were both captioned\n“Motion for Summary Judgment and Memorandum in Support,”\nthey addressed different issues—one motion concerned Lewis’s\nclaims for quiet title (the Quiet Title Motion), while the other\nfocused on U.S. Bank’s foreclosure claim (the Foreclosure\n\n2. Lewis raised a second quiet title claim, alleging the deed of trust\nwas not properly transferred to U.S. Bank, rendering U.S. Bank\nunable to foreclose on the Property. But this claim was later\ndismissed by stipulation of the parties.\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nMotion). The Foreclosure Motion stated on its first page that “U.S.\nBank Trust has simultaneously filed a separate motion for\nsummary judgment as to Mr. Lewis’s claims against U.S. Bank\nTrust and which is adopted in full” and later likewise noted the\n“simultaneously-filed Motion for Summary Judgment that\naddresses Mr. Lewis’s quiet title and unjust enrichment claims.”\nThe Quiet Title Motion argued Lewis’s quiet title and unjust\nenrichment claims were barred by res judicata. The day after U.S.\nBank filed its two motions for summary judgment, it filed a Notice\nof Errata, noting that it had “[i]nadvertently” included a\nwatermark on the Quiet Title Motion. U.S. Bank attached a\ncorrected motion.\n¶10 Lewis’s counsel (Counsel) “mistakenly believed that [the\nQuiet Title Motion] was the only pending motion for\nsummary judgment.” Thus, Lewis filed a single Opposition\nto Defendants’ Motion for Summary Judgment addressing\nonly the Quiet Title Motion. Though Lewis did not directly\noppose the Foreclosure Motion, he did briefly address judicial\nforeclosure in his opposition to the Quiet Title Motion, arguing\nU.S. Bank did not have a right to foreclose because it could not\ndemonstrate a “chain of title” establishing assignment of the deed\nof trust.\n¶11 After a hearing, the court granted both of U.S. Bank’s\nmotions for summary judgment. The court concluded Lewis’s\nquiet title and unjust enrichment claims were barred as a matter\nof law by claim preclusion. And the court granted summary\njudgment to U.S. Bank on its judicial foreclosure claim, finding the\nstatute of limitations had not run on the claim. U.S. Bank prepared\na proposed written order memorializing the court’s judgment, but\nLewis objected, arguing the order failed “to clarify and make clear\nthe consequences and facts surrounding U.S. Bank’s filing of two\n(2) Motions for Summary Judgment . . . with identical titles,\nfollowed by an Errata.” The court entered final judgment over\nLewis’s objection.\n\n[CITATION]\n\n¶12 U.S. Bank later filed a motion to amend the judgment\nunder rule 59 of the Utah Rules of Civil Procedure, arguing the\ncourt had not properly addressed Lewis’s quiet title claims.\nShortly thereafter, Lewis filed a rule 60(b) motion for relief from\nthe court’s grant of summary judgment to U.S. Bank on its judicial\nforeclosure claim. Counsel argued she “encountered a scenario\nthat was unprecedented in her practice of law when U.S. Bank\nfiled two (2) separate pleadings titled ‘Motion for Summary\nJudgment and Memorandum in Support’” and that the filing of\nthe Errata caused “confusion,” which constituted mistake or\nexcusable neglect under rule 60(b)(1). Counsel declared in a\nsubsequent affidavit that due to the Errata “and the fact that . . .\nmultiple pleadings were filed by [U.S. Bank] with the same title\non the same date,” she “mistakenly failed to realize a separate\nmotion for summary judgment was filed on U.S. Bank’s claim for\njudicial foreclosure.”\n¶13 After a hearing, the court granted U.S. Bank’s rule 59\nmotion and issued an amended judgment. 3 The court denied\nF\n\n\nLewis’s rule 60(b) motion, finding Lewis had “not established the\nrequisite showing of ‘due diligence’ required for relief under” rule\n60(b)(1). The amended judgment affirmed the court’s prior grant\nof summary judgment to U.S. Bank on both Lewis’s claims and\nU.S. Bank’s judicial foreclosure claim.\n\n ISSUES AND STANDARDS OF REVIEW\n¶14 On appeal, Lewis argues the district court erred in\nconcluding his claims for quiet title and unjust enrichment were\nbarred by claim preclusion. “Whether res judicata, and more\nspecifically claim preclusion, bars an action presents a question of\nlaw that we review for correctness.” [CITATION]\n\n3. The substance of the amendment is not relevant to this appeal.\n\n 20220434-CA\n\n UT App 3 Lewis v. U.S. Bank Trust\n\n¶15 Next, Lewis argues the district court improperly granted\nsummary judgment to U.S. Bank on its judicial foreclosure claim.\nIn particular, he argues the court erred in determining the statute\nof limitations on the claim had not yet run. “We review summary\njudgment decisions for correctness, viewing the facts in a light\nmost favorable to the losing party below and giving no deference\nto the district court’s conclusions of law.” [CITATION].\n¶16 Finally, Lewis argues the district court abused its\ndiscretion in denying his rule 60(b)(1) motion. “We review a\ndistrict court’s denial of a rule 60(b) motion for relief from\njudgment for an abuse of discretion.” [CITATION].\n\n ANALYSIS\n I. Lewis’s Quiet Title and Unjust Enrichment Claims\n¶17 First, Lewis challenges the district court’s conclusion that\nres judicata barred his quiet title and unjust enrichment claims as\na matter of law. “The doctrine of res judicata embraces two\ndistinct branches: claim preclusion and issue preclusion.” [CITATION]. While\n“claim preclusion corresponds to causes of action[,] issue\npreclusion corresponds to the facts and issues underlying causes\nof action.” [CITATION] (cleaned up). Claim preclusion “is premised on the principle\nthat a controversy should be adjudicated only once.” [CITATION] (cleaned up). To this end, for claim preclusion to apply,\n(1) “both cases must involve the same parties or their privies,”\n(2) “the claim that is alleged to be barred must have been\npresented in the first suit or be one that could and should have\nbeen raised in the first action,” and (3) “the first suit must have\n\n[SEGMENT 20]\n\n 20220434-CA\n\n UT App 3 [CITATION]\nresulted in a final judgment on the merits.” Id. (cleaned up). [CITATION]\nchallenges only the court’s application of the second element of\nthis test to his claims.\n¶18 In determining whether claims “are the same as those\nbrought or that could have been brought” for claim preclusion\npurposes, Utah courts have adopted a transactional test. See [CITATION],\n2009 UT 47, ¶ 30. Under this test, claims are the same as those that\ncould and should have been brought in the prior suit “if they arise\nfrom the same operative facts, or in other words from the same\ntransaction.” [CITATION], 2019 UT App 213, ¶ 43 (cleaned up). This\ntest does not turn on “the specific legal theory invoked” but rather\non “the essential similarity of the underlying events giving rise to\nthe various legal claims,” considering “whether the facts are\nrelated in time, space, origin, or motivation” and “whether they\nform a convenient trial unit.” [CITATION], 2012 UT\n38, ¶¶ 13–14, 284 P.3d 622 (cleaned up).\n¶19 Here, the transaction giving rise to [CITATION]’s quiet title\nclaims in the Current Lawsuit and the First Lawsuit is the same.\nIn the First Lawsuit, [CITATION] sought to quiet title to the Property,\narguing the foreclosing parties did not timely initiate foreclosure\nproceedings and the statute of limitations on foreclosure had run.\nHe based that claim on the fact that default on the loan occurred\nin 2009 but foreclosure was not initiated until 2016—outside the\napplicable six-year statute of limitations. In the Current Lawsuit,\n[CITATION] again raised a quiet title claim, arguing this time—under\nthe doctrine of laches—that U.S. Bank and its predecessors in\ninterest “unreasonably delayed enforcing their rights against the\nProperty.” This claim was based on his factual allegations that\n“[f]rom July 2010, [U.S. Bank] or its claimed predecessors in\ninterest could have taken action against the Property” but failed\nto do so until 2016.\n¶20 Both claims concern the Property, were motivated by\n[CITATION]’s desire to prevent foreclosure of the Property, and concern\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nthe delay in foreclosure. And Lewis does not suggest that the\nviability of his laches claim hinges on the additional delay\nincurred between the First Lawsuit and the Current Lawsuit.\nAlthough premised on different legal theories—statute of\nlimitations versus laches—Lewis’s quiet title claims in the First\nLawsuit and Current Lawsuit arise from the same transaction.\nThe claims are related in time, space, origin, and motivation, see\nid. ¶¶ 13–14, and the laches-based claim could and should have\nbeen brought in the First Lawsuit.\n¶21 Likewise, Lewis’s unjust enrichment claim is based on the\nsame transaction and should have been raised in the First\nLawsuit. Lewis based his unjust enrichment claim in the Current\nLawsuit on his assertion that he “maintained” and “made\nsubstantial improvements to the Property,” thus “conveying a\nbenefit” on U.S. Bank. Lewis bought the Property on August 26,\n2014. And he claims he began improving the Property “by new\nconstruction” sometime in 2015. This means, by the time he filed\nthe First Lawsuit on August 23, 2016, he would have been able to\nbring an unjust enrichment claim based on his supposed\nmaintenance and improvement.\n¶22 Lewis declared that “additional maintenance and\nimprovements” to the Property since this “new construction”\nprovide the basis for the unjust enrichment claim in the Current\nLawsuit. (Emphasis added.) But this is a tacit acknowledgement\nthat Lewis improved the Property prior to the First Lawsuit.\nLewis makes no attempt to differentiate between improvements\nmade prior to the First Lawsuit and those supposed\nimprovements giving rise to his unjust enrichment claim in the\nCurrent Lawsuit. And he provides no detail to substantiate what\nhis supposed improvements are. Thus, we are left to conclude that\nthis claim is based—at least in part—on improvements made to\nthe Property prior to the First Lawsuit. Consequently, the unjust\nenrichment claim is based on the same operative facts as a claim\nthat should have been brought in the First Lawsuit.\n\n 20220434-CA\n\n UT App 3 [CITATION]\n¶23 Because Lewis’s quiet title claim, based on laches, and his\nunjust enrichment claim could and should have been raised in the\nFirst Lawsuit, and because the remaining elements of claim\npreclusion are undisputed, the district court correctly concluded\nthat claim preclusion barred Lewis’s claims as a matter of law. 43F\n\n\n II. U.S. Bank’s Judicial Foreclosure Claim\n¶24 Lewis challenges the district court’s conclusion that the\nstatute of limitations on U.S. Bank’s judicial foreclosure claim had\nnot begun to run. Under Utah Code section 57-1-34, a person\nseeking to foreclose on an obligation secured by trust deed must\neither “commence an action” for judicial foreclosure or initiate\nnonjudicial foreclosure by filing “a notice of default” “within the\nperiod prescribed by law.” In [CITATION], this court concluded the “period\nprescribed by law” is the six-year statute of limitations laid out by\nUtah Code section 70A-3-118(1). [CITATION] (cleaned up). Under\nsection 70A-3-118(1), this six-year statute of limitations begins to\n\n\n4. Lewis also argues that, in barring his claims based on claim\npreclusion, the district court somehow applied res judicata to bar\nhis defense to U.S. Bank’s judicial foreclosure claim. But in its\norder granting summary judgment, the court addressed U.S.\nBank’s judicial foreclosure claim on the merits. The court did not\napply res judicata to prevent Lewis from defending against\njudicial foreclosure. This argument is unavailing.\n5. Lewis argues U.S. Bank’s judicial foreclosure claim was a\ncompulsory counterclaim to the First Lawsuit and should\ntherefore be dismissed. But because this argument is unpreserved,\nwe do not address it further. See [CITATION] (“It is well established that we will not address the\nmerits of an unpreserved issue absent a showing that an exception\nto the preservation rule applies.”).\n\n 20220434-CA\n\n UT App 3 [CITATION]\nrun “after the due date or dates stated in the note, or, if a due date\nis accelerated, within six years after the accelerated due date.”\n¶25 Filing a notice of default is an acceleration, causing this\nstatute of limitations to begin to run. See [CITATION] (“As a result of the\ndefault notice, the [d]ebt was accelerated and immediately due in\nfull.”); [CITATION] (noting that filing a notice of default was an\n“acceleration event” that “triggered the limitations period”), cert.\ndenied, [CITATION]. A notice of default may be\ncancelled, thus halting the statute of limitations; however, filing a\nnew notice re-accelerates the obligation’s due date and restarts the\nstatutory period for foreclosure. See [CITATION]\n(acknowledging two previously filed notices of default\nhad been cancelled and the six-year statute of limitations began\nrunning anew when a third notice of default was filed).\n¶26 Here, the first notice of default on the loan obligation was\nfiled in 2010. It was later cancelled on May 1, 2014, but a new\nnotice was entered on the same day. This notice was later\ncancelled on April 30, 2020. This cancellation of the notice of\ndefault halted the six-year statute of limitations period for\nforeclosure. See [CITATION]. No new notice of default has been recorded.\nThus, the six-year limitations period for foreclosure had not even\nbegun by the time U.S. Bank filed its judicial foreclosure action,\nand the district court correctly concluded as much. 6 5F\n\n\n6. Lewis also argues genuinely disputed material facts precluded\nsummary judgment on U.S. Bank’s judicial foreclosure claim.\nLewis lists four allegedly disputed “facts,” but he makes no\nattempt to explain how they precluded summary judgment. And\nin his reply brief, he raises factual issues different from those in\nhis opening brief, again without a meaningful attempt to explain\n (continued…)\n\n 20220434-CA\n\n UT App 3 [CITATION]\n III. Lewis’s Rule 60(b) Motion\n¶27 Lastly, Lewis argues the district court abused its discretion\nin denying his motion for relief under rule 60(b) of the Utah Rules\nof Civil Procedure. “In general, a movant is entitled to have a\ndefault judgment set aside under [rule] 60(b) if (1) the motion is\ntimely; (2) there is a basis for granting relief under one of the\nsubsections of 60(b); and (3) the movant has alleged a meritorious\ndefense.” [CITATION]. Rule\n60(b) provides several bases for relief, including “mistake,\ninadvertence, surprise, or excusable neglect.” Utah R. Civ. P.\n60(b)(1). To qualify for relief under rule 60(b)(1), a movant must\ndemonstrate due diligence. See [CITATION]. “Due diligence is established where the failure\nto act was the result of the neglect one would expect from a\nreasonably prudent person under similar circumstances.” [CITATION]\n(cleaned up).\n\n[SEGMENT 21]\n¶28 Here, Counsel stated she received the e-filing notification\nfor U.S. Bank’s “Motions for Summary Judgment and\nMemorandum in Support.” (Emphasis added.) She also received\nU.S. Bank’s Errata, which corrected the Quiet Title Motion. She\nbelieved the Errata replaced previous pleadings and “that there\nwas only one pending Motion for Summary Judgment.” She then\nopposed only the Quiet Title Motion—leaving the Foreclosure\nMotion unopposed. Lewis argued the failure to oppose\n\nhow they precluded summary judgment. “Appellate courts are\nnot a depository in which a party may dump the burden of\nargument and research.” [CITATION] (cleaned up). As the appellant,\nLewis has “the burden to clearly set forth the issues [he is]\nappealing and to provide reasoned argument and legal\nauthority.” Id. Because he has not done so, we do not address this\nargument further.\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nconstituted excusable neglect or mistake under rule 60(b)(1)\nbecause “it was unprecedented in [Counsel’s] practice of law” to\nfile two separate motions for summary judgment, and the\nidentical captions created a “reasonable scenario in which” she\ncould believe there was only one motion filed. The district court\ndisagreed, finding that because Counsel “had notice of, but did\nnot respond to,” the Foreclosure Motion, her behavior was\n“unreasonable” and failed to “establish[] the requisite showing of\n‘due diligence’ required.” We agree with the district court.\n¶29 “A multitude of Utah decisions” confirm that “failure to\ncheck or read correspondence” demonstrates a lack of due\ndiligence. [CITATION] (collecting cases), cert. denied, Jan. 2,\n2024 (No. 20231057); see id. ¶¶ 14–15 (concluding a party who\nignored emails from its registered agent about service of process\n“failed to act with diligence—let alone the due diligence required\nto justify relief under rule 60(b)(1)”—because “a reasonably\ndiligent person would have read these emails and discovered\ntheir content”); [CITATION] (reasoning an attorney who “failed to read\nthe documents” he received “did not exercise the appropriate\nlevel of diligence required to excuse his neglect, because his\ncomplete lack of action does not meet the standard required, i.e.,\nthe exercise of due diligence by a reasonably prudent person\nunder similar circumstances” (cleaned up)).\n¶30 At the very least, due diligence required Counsel to read\nthe documents she received. Had she done so, she would have\nknown U.S. Bank filed two separate motions for summary\njudgment. The first page of the Foreclosure Motion stated, “U.S.\nBank Trust has simultaneously filed a separate motion for\nsummary judgment as to Mr. Lewis’s claims against U.S. Bank\nTrust.” And it noted later, “U.S. Bank adopts and incorporates all\narguments and citations in the simultaneously-filed Motion for\nSummary Judgment that address Mr. Lewis’s quiet title and\n\n 20220434-CA\n\n UT App 3 Lewis v. U.S. Bank Trust\n\nunjust enrichment claims.” “[F]ailing to read the documents after\nreceiving them does not qualify” as due diligence. [CITATION] Without a showing of due\ndiligence, Lewis was not eligible for relief for mistake or\ninadvertence under rule 60(b)(1). See [CITATION] And\nwithout a basis for relief under rule 60(b), the district court did\nnot abuse its discretion in denying the motion.\n\n CONCLUSION\n¶31 The district court correctly concluded that Lewis’s quiet\ntitle and unjust enrichment claims were barred by claim\npreclusion and that the statute of limitations on U.S. Bank’s\njudicial foreclosure claim had not run. And the court acted within\nits discretion in denying Lewis’s rule 60(b) motion for relief from\nthe judgment. Accordingly, we affirm.\n\n\n 20220434-CA\n\n UT App 3 "},"Task":{"kind":"string","value":"Attributing"},"System_msg":{"kind":"string","value":"You are given a context and an instruction. Respond to the instruction based on the context."},"User_msg":{"kind":"string","value":"### Context:\n[SEGMENT 1]\nThis opinion is subject to revision before final\n publication in the Pacific Reporter\n UT 33\n\n IN THE\n SUPREME COURT OF THE STATE OF UTAH\n STATE OF UTAH,\n Petitioner,\n v.\n BREVAN BRINGHURST BAUGH,\n Respondent.\n No. 20220272\n Heard December 13, 2023\n Filed August 15, 2024\n On Certiorari to the Utah Court of Appeals\n First District, Cache County\n The Honorable Angela Fonnesbeck\n No. 181100862\n Attorneys:\n Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,\n Salt Lake City, for petitioner\n Emily Adams, Freya Johnson, Melissa Jo Townsend, Bountiful,\n for respondent\n CHIEF JUSTICE DURRANT authored the opinion of the Court, in\n which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,\n JUDGE BEAN, and JUDGE HOWELL joined.\nHaving recused themselves, JUSTICE HAGEN and JUSTICE POHLMAN\ndo not participate herein; DISTRICT COURT JUDGE JOSEPH BEAN and\n DISTRICT COURT JUDGE ANTHONY HOWELL sat.\n\n CHIEF JUSTICE DURRANT, opinion of the Court:\n INTRODUCTION\n ¶1 In 2018, Brevan Bringhurst Baugh was charged with two\ncounts of aggravated sexual abuse of a child. At trial, the STATE v. BAUGH\n Opinion of the Court\nprosecution introduced evidence of three instances of alleged\nabuse, 1 with the instances distinguished based on the location in\nwhich they occurred. But the two counts charged were\ndistinguished based on date rather than location. And in the State’s\nclosing argument, it told the jurors they could use “any two” of the\nthree alleged instances of abuse to fulfill the elements of the\ncharged counts. The jury convicted Baugh on one count and\nacquitted him on the other.\n ¶2 Baugh appealed. He argued there was a risk that the jury\ndid not unanimously agree on which instance of abuse supported\nthe count on which he was convicted. Baugh also contended that\nhis counsel rendered constitutionally ineffective assistance by\nfailing to request jury instructions that would have properly\ninstructed the jury on its constitutional duty to be unanimous as to\neach element of each convicted count. The court of appeals agreed\nwith Baugh and vacated his sentence.\n ¶3 We granted the State’s certiorari petition. We affirm.\n BACKGROUND\n ¶4 Between 2012 and 2014, Brevan Bringhurst Baugh lived at\nhis family home (Nibley Home) with his daughter Sasha 2 and her\nmother. In April 2014, Baugh and Sasha’s mother commenced\ndivorce proceedings, and Baugh moved into a one-bedroom\napartment (Falls Apartment). Sasha and her siblings visited Baugh\nwhile he was living at Falls Apartment. Several years later, Sasha\nrevealed to her therapist that Baugh had abused her, and her\ntherapist reported the allegations to the police.\n ¶5 During the investigation into the abuse, a detective asked\nSasha to call Baugh while the detective listened in. The detective’s\nintent was to get Baugh to confess to the crimes. While on the call,\nBaugh resisted admitting to the allegations and suggested that\nSasha was not remembering things correctly. He eventually\napologized to Sasha but remained adamant that the apology was\n__________________________________________________________\n 1 We use “alleged abuse” here because, although Baugh was\nconvicted of one count of aggravated sexual abuse of a child and\nacquitted of one count, we cannot know on which instance of\ntouching the jury based its conviction. Therefore, when referring to\nthe separate instances of touching, we use the term “alleged.”\n 2 A pseudonym.\n Cite as: [CITATION]\n Opinion of the Court\nonly for inadvertently exposing Sasha to pornography and for her\nwalking in on him while he was masturbating. When pressed,\nBaugh acknowledged that if Sasha remembered abuse occurring,\nhe wouldn’t deny it. But he insisted that he had no recollection of\nabusing Sasha, blaming his failure to remember on his marijuana\nuse at the time of the alleged acts.\n ¶6 After this confrontation call, the detective brought Baugh\nin for questioning. Baugh restated that he and Sasha didn’t “have\nthe same recollection of the events.” But he did admit to exposing\nSasha to pornography and that she had once seen him\nmasturbating. The detective also asked whether Baugh had been\nabusing Sasha “for years.” Baugh responded, “For years[?] Okay\nno. No.” The detective then asked when was the last time he had\nabused Sasha. Baugh responded that it was at Nibley Home.\n ¶7 On July 9, 2018, Baugh was charged with two counts of\naggravated sexual abuse of a child, a first-degree felony, in\nviolation of Utah Code subsection 76-5-404.1(4). The first count was\nbased on alleged conduct that occurred on or about 2012. The\nsecond count was based on alleged conduct that occurred on or\nabout 2014.\n ¶8 At trial, Sasha testified that Baugh made her touch his\npenis three times between 2012 and 2014. Sasha stated that during\neach of these alleged incidents, Baugh put Sasha’s hand on his\npenis and moved it up and down until “white stuff came out.”\nSasha testified that the first two alleged incidents occurred while\nBaugh and Sasha were lying on Baugh’s bed in Nibley Home. The\nfinal alleged incident occurred when Sasha was twelve and Baugh\nhad moved out of Nibley Home and into Falls Apartment.\n ¶9 Baugh countered Sasha’s testimony by testifying that none\nof the alleged acts occurred. He insisted that, until Sasha’s\nconfrontation call, he had no suspicion of the accusations. While\nBaugh did admit to accidentally exposing Sasha to pornography\nand further admitted that she had walked in on him while he was\nmasturbating, he remained adamant that he never touched Sasha\nand he never had Sasha touch him. He also insisted that the\ncomments he made during the phone call and subsequent\ninterrogations were not confessions to having abused Sasha. Baugh\ntestified that his answer to the final question the detective asked\nhim during the interrogation was describing the last time he\nexposed Sasha to pornography. And when questioned about the\nother statements he made on the confrontation call, he stated that\n\n====== End of Part ====== STATE v. BAUGH\n Opinion of the Court\nhe did not outright deny the allegations because he wanted to\nvalidate Sasha’s feelings.\n ¶10 During closing argument, the prosecution stated that the\ntwo counts charged could be “fulfilled with . . . any two of those\nincidents that [Sasha] described, those can be the elements of both\nof these counts.” Defense counsel did not object to this statement\nnor request more specific unanimity instructions.\n ¶11 The jury was then instructed. Regarding both counts of\nsexual abuse of a child, the jury was told that it must find:\n (1) the Defendant, Brevan Baugh, (2) occupied a\n position of special trust in relation to Sasha, and\n (3) intentionally, knowingly, [or] recklessly touched\n the anus, buttocks, genitalia or breast of Sasha or\n otherwise took indecent liberties with her or caused\n her to take indecent liberties with him, (4) with the\n intent to arouse or gratify the sexual desire of any\n person regardless of the sex of any participant, and\n (5) at the time of the offenses Sasha was under the age\n of fourteen.\nThe jury was also given a general unanimity instruction: “Because\nthis is a criminal case, every single juror must agree with the verdict\nbefore the Defendant can be found guilty or not.”\n ¶12 Ultimately, the jury acquitted Baugh of Count One and\nconvicted him of Count Two. Baugh appealed the conviction. He\nargued that his counsel provided ineffective assistance in failing to\nrequest more specific unanimity instructions.\n ¶13 Article I, section 10 of the Utah Constitution contains the\nUnanimous Verdict Clause, which reads, “In criminal cases the\nverdict shall be unanimous.” To render a valid verdict under that\nclause, the jury must be unanimous on all elements of the charged\ncrime. 3 Jury instructions must adequately convey this unanimity\nrequirement to the jury. 4\n\n__________________________________________________________\n 3 [CITATION]\n 4 See [CITATION] (explaining\nthat jury instructions must “fairly instruct the jury on the law\napplicable to the case,” and must “accurately convey the law”\n(cleaned up)).\n Cite as: 2024 UT 33\n Opinion of the Court\n ¶14 In reviewing Baugh’s appeal, the court of appeals applied\nthese principles and reasoned that, much like in its recent decision\nin [CITATION] Baugh’s counsel’s performed deficiently by\nfailing to request jury instructions that instructed the jury to be\nunanimous on which specific act supported which specific charge. [CITATION]\nIt further reasoned that these ambiguous instructions could have\nled some jurors to convict Baugh based on one alleged instance of\nabuse and others to convict on another alleged instance, in violation\nof the unanimity requirement. [CITATION] Because of that risk, the court of\nappeals held that Baugh was prejudiced by defense counsel’s\ndeficient performance and vacated his conviction. [CITATION] We granted the\nState’s petition for certiorari.\n STANDARD OF REVIEW\n ¶15 The State challenges the court of appeals’ determination\nthat Baugh’s counsel provided constitutionally ineffective\nassistance by failing to request more specific unanimity\ninstructions. “[W]e review the court of appeals’ decision for\ncorrectness.” [CITATION]\n ANALYSIS\n ¶16 An ineffective assistance of counsel claim has two\nelements. “First, the defendant must show that counsel’s\nperformance was deficient.” [CITATION] “Second, the defendant must show\nthat the deficient performance prejudiced the defense.” [CITATION] “[F]ailure\nto establish either prong is fatal to an ineffective assistance of\ncounsel claim.” [CITATION]\n ¶17 The State argues that neither prong of this test is satisfied.\nFirst, the State contends that Baugh’s counsel’s performance was\nreasonable because Unanimous Verdict Clause caselaw regarding\n\n[SEGMENT 2]\n__________________________________________________________\n [CITATION] (cleaned up).\n STATE v. BAUGH\n Opinion of the Court\nhow a jury must be instructed on unanimity is ambiguous. Second,\nthe State argues that the court of appeals erred in its prejudice\nanalysis by failing to analyze whether there was a reasonable\nprobability that a jury would have convicted Baugh absent\ncounsel’s deficient performance. The appellate court’s error, the\nState contends, is significant because Baugh did not carry his\nburden of showing that any alleged deficient performance\nprejudiced him.\n ¶18 We disagree with the State on both points.\n I. BAUGH’S COUNSEL PERFORMED DEFICIENTLY BY FAILING TO\n REQUEST A MORE DETAILED UNANIMITY INSTRUCTION\n ¶19 To constitute deficient performance, counsel’s\nrepresentation must fall “below an objective standard of\nreasonableness.” Reasonableness is determined by “prevailing\nprofessional norms.” Whether “counsel’s actions can be\nconsidered strategic plays an important role in our analysis” of\nwhether counsel’s performance was deficient, but lack of strategic\nadvantage is not conclusive in determining whether counsel’s\nperformance was unreasonable. “A reviewing court must always\nbase its deficiency determination on the ultimate question of\nwhether counsel’s act or omission fell below an objective standard\nof reasonableness.”\n ¶20 The State challenges the court of appeals’ deficient\nperformance analysis, claiming that the court of appeals\nmisapprehended Unanimous Verdict Clause caselaw. In its\nanalysis, the court of appeals relied on [CITATION] to determine that\nBaugh’s counsel’s performance was deficient. The court reasoned\nthat, in [CITATION], it had correctly understood Unanimous Verdict\nClause caselaw. In that case, the court dictated that “[w]here\nneither the charges nor the elements instructions link each count to\na particular act, instructing the jury that it must agree as to which\ncriminal acts occurred is critical to ensuring unanimity on each\n __________________________________________________________\n [CITATION] (cleaned up).\n [CITATION] (citing\n[CITATION]).\n Cite as: 2024 UT 33\n Opinion of the Court\nelement of each crime.” 18 And because neither the charges, the jury\ninstructions, nor the State’s presentation of evidence in Baugh’s\ncase linked specific conduct to each count, the court of appeals held\nthat Baugh’s counsel’s failure to request more specific unanimity\ninstructions constituted deficient performance. 19\n ¶21 But the State argues that the caselaw regarding the kind of\njury instructions necessary to ensure unanimity was not clear when\n[CITATION] was decided. The court of appeals had, according to the State,\nincorrectly treated [CITATION]—a plurality opinion—as\nestablished precedent and had extended its narrow holding past\nwhat this court intended. Without [CITATION] as established\nprecedent, the State argues that the court of appeals’ reasoning falls\napart because any remaining binding precedent was either not\ndispositive or inapplicable.\n ¶22 We now begin our analysis with our own review of the\nrelevant caselaw on the Unanimous Verdict Clause in article I,\nsection 10 of the Utah Constitution.\n ¶23 The Unanimous Verdict Clause requires that “the [jury’s]\nverdict shall be unanimous” in all criminal cases. 21 It is not enough\nthat the jury find the defendant “guilty of some crime.” 22 For\nexample, a verdict would not be unanimous “if some jurors found\na defendant guilty of a robbery committed on December 25, 1990,\nin Salt Lake City, but other jurors found him guilty of a robbery\ncommitted January 15, 1991, in Denver, Colorado, even though all\njurors” agreed that he was guilty of robbery. 23 The jury must be\nunanimous “as to a specific crime and as to each element of the\ncrime” to comply with the Unanimous Verdict Clause. 24 Neither\nparty disputes this premise.\n ¶24 Although our caselaw is clear that the jury must be\nunanimous as to each element of each count of a crime, it is less\n__________________________________________________________\n 18 [CITATION]\n 21 UTAH CONST. art. I, § 10.\n 22 [CITATION] (cleaned up).\n 23 [CITATION] (cleaned up).\n 24 [CITATION] (plurality opinion).\n STATE v. BAUGH\n Opinion of the Court\nclear how that unanimity requirement must be conveyed to the jury\nin multiple-act cases like Baugh’s, where a defendant is charged\nwith multiple counts of a crime with identical elements. 25\n ¶25 In [CITATION], the defendant was charged with one count of\nsexual abuse of a child. 26 The prosecution presented evidence of\nseveral acts, any one of which could satisfy the touching element of\nthe charge.27 The unanimity instruction given to the jury stated that\nthere was “no requirement that the jurors be unanimous about\nprecisely which act occurred or when or where the act or acts\noccurred.” 28 On appeal, we held that it was plain error for the trial\ncourt to give these instructions, as they could have led the jurors to\nbelieve that it was acceptable to render a non-unanimous verdict.29\nBut [CITATION] did not establish clear precedent on multiple-act cases\nbecause the relevant portion of the opinion was a plurality. 30\n ¶26 Our next case on the issue, [CITATION], provided no\nmore clarity regarding the form jury instructions should take to\nensure a unanimous verdict.31 In that case, the defendant\nchallenged jury instructions that presented two alternative theories\nfor finding aggravating factors, without mentioning unanimity. 32\n__________________________________________________________\n 25 We note that we establish in [CITATION]—which is\npublished simultaneously with this case—how unanimity must be\nconveyed to the jury in multiple-act cases in which charges are not\nconnected to specific conduct in the jury instructions. [CITATION] was charged with\nmultiple offenses, but the solitary sexual abuse charge is the only\none relevant to our analysis.\n 27 Id. ¶ 5.\n 28 Id. ¶ 65.\n 29 Id. ¶¶ 65, 68 (plurality opinion); id. ¶ 70 (Howe, C.J.,\nconcurring in part and dissenting in part); id. ¶ 79 (Zimmerman, J.,\nconcurring in part and dissenting in part).\n 30 See id. ¶¶ 67, 68 (Russon, J., concurring in the result); id. ¶ 70\n(Howe, C.J., concurring in part and dissenting in part); id. ¶ 79\n(Zimmerman, J., concurring in part and dissenting in part).\n 31 [CITATION].\n 32 Id. ¶¶ 15–16.\n Cite as: 2024 UT 33\n Opinion of the Court\nIn holding that it was not plain error for the court to give these jury\ninstructions, we stated that the instructions created the risk of only\nslight confusion as to the unanimity required by the jury.[CITATION] The\nState argues that [CITATION] establishes that the lack of a specific\nunanimity instruction only ever creates a risk of “slight confusion”\nfor a jury. But that reads too much into this court’s opinion.\n ¶27 The [CITATION] court stated that it was “unconvinced that the\nslight confusion that may have arisen from the wording of the\ninstructions used [at trial] present[ed] a reasonable likelihood of a\nmore favorable result for defendant.” [CITATION] Such language indicates a\ncase- and fact-specific holding, rather than a general\npronouncement, and we decline to extend this holding beyond that\ncase.\n ¶28 In [CITATION], which had not been decided at the time of\nBaugh’s trial, the court of appeals surveyed the state of the law\nregarding jury unanimity instructions in multiple-act cases. [CITATION] In\n[CITATION], the defendant was charged with six counts of aggravated\nsexual abuse of a child. [CITATION] But, as in [CITATION], the jury instructions did\nnot connect each count to a separate instance of touching. [CITATION] The jury\nwas given a general unanimity instruction informing it that all\njurors must be unanimous regarding the guilt of the defendant. [CITATION]\nDuring deliberations, the jury asked twice for clarification “on how\nthe counts work,” and asked in particular how to “weigh each\ncount when they are all the same.” [CITATION] The court referred the jury\nback to its instructions. [CITATION] The jury convicted [CITATION] on two counts\nand acquitted him on the rest. [CITATION]\n STATE v. BAUGH\n Opinion of the Court\n ¶29 The court of appeals reviewed the jury’s verdict to\ndetermine whether counsel was ineffective for failing to request\nmore specific unanimity instructions. 42 It reasoned that the state of\nthe law “should have been readily apparent” based on our holding\nin [CITATION]: “[w]here neither the charges nor the elements\ninstructions link each count to a particular act, instructing the jury\nthat it must agree as to which criminal acts occurred is critical to\nensuring unanimity on each element of each crime.” 43 This blanket\nstatement fails to recognize the reduced weight that [CITATION] must\nbe given as a plurality opinion. Because the relevant portion of\n[CITATION] did not represent the opinion of the majority of the court,\nthe court of appeals could rely only on that case’s outcome as\nbinding precedent, not its reasoning. 44\n ¶30 Although the court of appeals may have overstated the\nweight of the holding in [CITATION], that case was still the most\nrelevant precedent at the time and thus an indicator to reasonable\ncounsel of the range of appropriate actions. Relevant case law is one\nof several factors to consider in assessing the reasonableness of\ncounsel’s performance. And that counsel’s performance was\nobjectively unreasonable because not requesting specific unanimity\ninstructions effectively lowered the State’s burden of proof was\nanother factor. Taken together, these two factors still support the\ncourt of appeals’ conclusion that Alires’s counsel performed\ndeficiently despite the court’s overstatement of [CITATION] as binding\nprecedent.\n ¶31 Having reviewed the state of the law regarding the\nstandard for instructing a jury on unanimity, we turn to Baugh’s\ncase. Despite the unsettled law in this area, it is clear in Baugh’s\ncase that the jury was not adequately instructed.\n ¶32 Baugh was charged with sexual abuse of a child. Under\nUtah Code subsection 76-5-404.1(2)(a), a person is guilty of sexual\nabuse of a child if “the actor: . . . [1] touches, whether over or under\n__________________________________________________________\n 42 [CITATION] (citing [CITATION] (plurality\nopinion)).\n\n[SEGMENT 3]\n 44 See [CITATION] (explaining that\nplurality opinions “do not constitute binding precedent); see also\n[CITATION] (stating that a\nplurality opinion’s analysis “is not binding”).\n Cite as: 2024 UT 33\n Opinion of the Court\nthe clothing, the buttocks or pubic area of a child; . . . the breast of\na female child; or . . . otherwise takes indecent liberties with a\nchild,” and “[2] the actor’s conduct is with intent to . . . cause\nsubstantial emotional or bodily pain to any individual; or . . .\narouse or gratify the sexual desire of any individual.” Caselaw is\nclear that the jury must be unanimous as to each element of each\ncount of that crime. [CITATION] In practice, this means that the jury must\nagree on which incident of touching satisfies each count. If the jury\ndoes not agree on which act relates to each count, then its verdict\nviolates the Unanimous Verdict Clause.\n ¶33 The jury in Baugh’s case was given a general unanimity\ninstruction that read, “Because this is a criminal case, every single\njuror must agree with the verdict before the defendant can be found\nguilty or not guilty.” Trial counsel did not request a more specific\nunanimity instruction.\n ¶34 The circumstances of Baugh’s case created an\nunacceptable risk of a non-unanimous verdict, and a reasonable\nattorney would have recognized that risk. Baugh was charged with\ntwo counts of aggravated sexual abuse of a child for alleged acts\noccurring in 2012 and 2014. During his trial, the State presented\nevidence to the jury of three instances of touching. But the jury was\nnot told when these alleged instances occurred, only where the\nalleged instances occurred. The State presented evidence of two\ninstances of touching that occurred at Nibley Home and one that\noccurred at Falls Apartment.\n ¶35 The State’s presentation of evidence created tension\nbetween the evidence and the counts, which were distinguished\nonly by date: one count for 2012 and one count for 2014. Because\nBaugh lived in both Nibley Home and Falls Apartment in 2014, that\ntension left room for ambiguity. And that ambiguity left room for\nnon-unanimity. The jurors could agree that touching occurred in\n2014 but disagree as to whether the specific instance of touching\noccurred at Nibley Home or Falls Apartment. And did the jury’s\nverdict did not eliminate the problem. The jury acquitted Baugh on\nthe 2012 count but convicted him on the 2014 count, leaving open\nthe possibility that the jurors may have disagreed on which specific\ninstance of touching the State had proven.\n\n___________________________________________________________\n [CITATION]\n STATE v. BAUGH\n Opinion of the Court\n ¶36 The State also declined to connect specific instances of\ntouching with a count. [CITATION] We have noted that “courts in Utah and\nelsewhere have determined that a unanimity problem can be\nremedied by prosecutorial election.”[CITATION] That is, the harm that can\nflow from a lack of a specific unanimity instruction might, in some\ncases, be mitigated if the prosecutor elects, in closing argument, to\nspell out for the jury which alleged actions correspond to which\ncharged counts. The absence of prosecutorial election here further\nindicates that reasonable counsel would have been concerned\nabout unanimity because there was nothing to mitigate the harm of\nerroneous jury instructions.\n ¶37 The presence of a legal error “does not necessarily mean\nthat defense counsel’s failure to object to the error amounted to\ndeficient performance.” [CITATION] And there is a “wide range of reasonable\nprofessional assistance.” [CITATION] But taking each of the above\nopportunities for jury confusion together, no reasonable attorney\nwould have failed to request more specific unanimity instructions.\n ¶38 Baugh’s counsel was presented with three instances of\ntouching that were not specifically attached to the two counts\ncharged. And in the State’s closing argument, it told the jury that it\ncould fulfill the counts with any two of the alleged instances of\nconduct. This statement suggested to the jury that it could\n__________________________________________________________\n [CITATION] In criminal cases in which the State has not specified which\nacts it relied on to support each charged count, it may elect to do so\nduring trial. See [CITATION]. We call this\ndecision prosecutorial election. See [CITATION]. For example, in this case, the two counts of sexual\nabuse were not connected to specific acts when charged. They were\ndistinguished only by approximate date. The State, in its closing\nargument, could have elected to attach one of the three alleged acts\nto a specific count instead of telling the jury that it could choose\nfrom any of the three alleged acts to satisfy the elements of either\ncount. That election might have mitigated the harm flowing from\nBaugh’s counsel’s failure to ask for a specific unanimity instruction.\nBut the State declined to make an election, and Baugh, as we\ndescribe below, was harmed by his counsel’s failure to act.\n [CITATION]\n Cite as: 2024 UT 33\n Opinion of the Court\nimpermissibly mix-and-match the instances of touching when\nreaching its verdict. The high risk for non-unanimity was clear.\n ¶39 Further, there were no circumstances in this case that\nmitigated the risk of a non-unanimous verdict. The evidence for\neach of the instances of touching was fairly equal in persuasive\nforce. 50 So the evidence was not overwhelmingly stronger for any\none instance such that any reasonable jury could have only\nconvicted on that count.\n ¶40 And there was no strategic advantage to not requesting\nmore specific unanimity instructions. Doing so would not have\ndirected the jury to any especially damaging evidence, and failing\nto do so effectively lowered the State’s burden of proof for the\ntouching element. 51\n ¶41 Because the risk of a non-unanimous verdict would have\nbeen clear to reasonable counsel, Baugh’s counsel’s failure to\nrequest more specific unanimity instructions was objectively\nunreasonable. Therefore, his counsel’s performance was deficient.\n II. BAUGH’S COUNSEL’S DEFICIENT PERFORMANCE\n PREJUDICED BAUGH\n ¶42 To prevail on an ineffective assistance of counsel claim, the\ndefendant must show that “counsel’s errors actually had an\nadverse effect on the defense,” 52 and that there is a “reasonable\nprobability that, but for [those] . . . errors, the result of the\nproceeding would have been different.” 53 “A reasonable\nprobability is a probability sufficient to undermine confidence in\nthe outcome.” 54 It is insufficient “for the defendant to show that the\n__________________________________________________________\n 50 See [CITATION].\n 51 See [CITATION] (explaining that failing to\nrequest more specific unanimity instructions in the face of a risk of\na non-unanimous verdict “effectively lower[s] the State’s burden of\nproof”).\n 52 [CITATION] (cleaned up).\n 53 [CITATION]; see also [CITATION] (explaining Strickland’s\nprejudice standard).\n 54 [CITATION]; see also [CITATION]\n(quoting [CITATION]).\n STATE v. BAUGH\n Opinion of the Court\nerrors had some conceivable effect on the outcome of the\nproceeding.” 55 And “a verdict or conclusion only weakly\nsupported by the record is more likely to have been affected by\nerrors than one with overwhelming record support.” 56\n ¶43 The State argues that the court of appeals failed to consider\nwhether the jury would have convicted absent defense counsel’s\nerror. In the State’s view, the court of appeals completed only a\nportion of the Strickland prejudice analysis: whether the jury\nconvicted Baugh because of counsel’s deficient performance.\n ¶44 While we acknowledge the court of appeals may not have\nsignposted its inquiry as clearly as possible, we are satisfied that\nthe court conducted the requisite analysis. And we agree that\ncounsel’s deficient performance prejudiced Baugh.\n ¶45 The court of appeals began its analysis by correctly\nsummarizing Strickland’s prejudice standard. [CITATION] The court then\nconsidered the totality of the evidence before the jury. Sasha\ntestified about three instances of abuse—two occurring at Nibley\nHome and one at Falls Apartment—but distinguished these\ninstances only by the location. [CITATION] And “[t]he jury instructions\ndistinguished the counts, not by location but based on the date of\nthe alleged abuse—2012 for count one and 2014 for count two.” [CITATION]\nBut in 2012, Baugh lived at both Nibley Home and Falls\nApartment. [CITATION]\n ¶46 So the jury received evidence of the alleged instances of\ntouching based only on location but was expected to connect these\ninstances of touching to counts distinguished only by date. And\nalthough only those instances taking place at Nibley Home could\nhave been connected to the first count, any of the three alleged\ninstances could have been connected to the 2014 count because\nBaugh lived at both Nibley Home and Falls Apartment in 2014.\nGiven that the jury acquitted Baugh on the 2012 count and\n\n[SEGMENT 4]\n__________________________________________________________\n [CITATION]\n Cite as: 2024 UT 33\n Opinion of the Court\nconvicted him on the 2014 count, its verdict didn’t resolve the risk\nthat some jurors convicted based on an act that took place at Nibley\nHome, while others convicted based on an act that occurred at Falls\nApartment.\n ¶47 Next, the court of appeals considered Baugh’s\n“confessions” and his explanation of them at trial. During the\ninvestigation, Sasha called Baugh to confront him about the\nabuse. [CITATION] The State argues that Baugh admitted to the abuse during\nthe call saying, “if you say I did it, then—then I’m sure I did,” and\n“I’m not going to deny it.” Later, during interrogation, the detective\nasked Baugh if he had been abusing Sasha for years, to which he\nreplied, “For years[?] Okay. No.” The State paints that as another\nadmission. And when asked when he last abused Sasha, Baugh\nsaid it was “at the Nibley [Home].” A third admission, according\nto the State.\n ¶48 But, as the court of appeals noted, Baugh’s statements\nduring the confrontation call and subsequent interrogations do not\namount to an unequivocal confession. [CITATION] During the confrontation\ncall, interrogation, and at trial, Baugh maintained that he had not\nabused Sasha. And he offered testimony at trial that his\n“admissions” were simply an attempt to validate his daughter’s\nfeelings despite her “getting things mixed up.”\n ¶49 Finally, the court of appeals considered the State’s closing\nargument, where the prosecutor told the jurors that the “two counts\ncan be fulfilled with . . . any two of those experiences” described at\ntrial and that “any two of those incidents . . . can be the elements of\nboth of these counts.” [CITATION]\n ¶50 Reviewing the evidence as a whole, the court of appeals\nconcluded that its “confidence in the outcome ha[d] been\nundermined.” [CITATION] Because the jury was instructed on the counts\nbased on the dates of the alleged instances but was only given\nevidence of the counts based on the location of those instances, the\ncourt reasoned, there was “a reasonable probability that the jurors\n\n__________________________________________________________\n [CITATION]\n STATE v. BAUGH\n Opinion of the Court\ndid not agree on which act of alleged abuse supported each\ncount.” [CITATION]\n ¶51 And, relevant to the State’s claim that the court of appeals\ndid not consider whether the jury would have come to a different\nconclusion absent counsel’s errors, the appellate court explained\nthat it was not confident that the jury would have come to the same\nconclusion if it had received more specific unanimity instructions. [CITATION]\nAnd it noted that the evidence presented was not overwhelmingly\nstronger for either of the two counts. [CITATION] Further, despite some\nevidence that Baugh had confessed, his explanation of his\nstatements created the possibility that a reasonable jury could have\nfound his “confession” unconvincing. [CITATION] Therefore, the court of\nappeals concluded, it could not “identify one charge on which [it\ncould] say with confidence [the jury] would have convicted.” [CITATION] As\nsuch, the court found “a reasonable probability that but for defense\ncounsel’s” failure to request more specific unanimity instructions,\n“the proceeding’s outcome would have differed.” [CITATION]\n ¶52 The court of appeals applied the correct standard in its\nanalysis of the prejudicial effect of counsel’s error, considered the\ntotality of the evidence presented at trial, and correctly concluded\nthat there was a reasonable probability of a different outcome had\ndefense counsel requested more specific unanimity instructions.\n CONCLUSION\n ¶53 In order to succeed on his claim of ineffective assistance of\ncounsel, Baugh had to show that his counsel’s performance was\ndeficient and that the deficient performance prejudiced him. The\ncourt of appeals correctly concluded that Baugh made those\nshowings. Because the risk of non-unanimity was significant, and,\ngiven the state of the law regarding jury unanimity as to elements,\nBaugh’s counsel performed deficiently by failing to request more\nspecific unanimity instructions. Further, there was a reasonable\n__________________________________________________________\n [CITATION]\n Cite as: [CITATION]\n Opinion of the Court\nprobability that the jury would not have convicted Baugh had the\nerror not occurred. Therefore, we hold that Baugh’s counsel was\nineffective and affirm the court of appeals’ vacation of Baugh’s\nconviction.\n \n2024 UT App 79\n\n THE UTAH COURT OF APPEALS\n STATE OF UTAH,\n Appellee,\n v.\n LISA YVONNE OREILLY,\n Appellant.\n Opinion\n No. 20230104-CA\n Filed May 23, 2024\n Sixth District Court, Panguitch Department\n The Honorable Mandy Larsen\n No. 181600010\n Nicolas C. Wilde and Trevor J. Lee,\n Attorneys for Appellant\n Barry Huntington and Jerry Jaeger,\n Attorneys for Appellee\n JUDGE GREGORY K. ORME authored this Opinion, in which\n JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.\nORME, Judge:\n¶1 Lisa Yvonne Oreilly appeals her convictions for possession\nof methamphetamine, possession of marijuana, and possession of\ndrug paraphernalia. Oreilly argues she was denied her\nconstitutional right to counsel and, thus, is entitled to a new trial.\nOrielly’s challenge is based on the assertion that her trial counsel\nlabored under an actual conflict of interest because counsel\nrepresented both her and her codefendant, Michael Thompson.\nWe agree with Oreilly that because of the joint representation she\nis not required to show prejudice under the traditional ineffective\nassistance analysis, but we deny the requested relief because State v. Oreilly\n\nOreilly has not carried her burden of showing the existence of an\nactual conflict of interest.\n\n BACKGROUND 1\n¶2 Acting on a tip, a Utah Highway Patrol trooper and\nsergeant located a vehicle parked in front of a rest stop bathroom\nin February 2018. The vehicle was empty and, according to the\nsergeant, “parked crooked, unusual.” Less than a minute after the\nofficers arrived, Oreilly and Thompson emerged from the\nbathroom. Both officers described Oreilly and Thompson as\nnervous and seemingly under the influence of drugs.\n¶3 The officers approached and made contact with Oreilly\nand Thompson. Thompson was arrested when a driver license\ncheck revealed two outstanding arrest warrants. After Oreilly\nsaid she did not have a valid driver license and the officers\ndetermined neither Oreilly nor Thompson owned the vehicle, the\ndecision was made to have the vehicle towed.\n¶4 At some point during the encounter, a trained K-9 handler\nwith the Garfield County Sheriff’s Office arrived at the scene and\nwalked his dog around the vehicle. The dog alerted to the\npresence of drugs. The officers then conducted a physical search\nof the vehicle and found marijuana, marijuana grinders, a\nmarijuana pipe, a baggie containing methamphetamine, a clear\ncontainer containing methamphetamine, and syringes containing\nmethamphetamine. All of the items were in areas accessible to\nboth the driver and the passenger.\n\n1. “On appeal, we recite the facts from the record in the light most\nfavorable to the jury’s verdict and present conflicting evidence\nonly as necessary to understand issues raised on appeal.” [CITATION]\n\n 20230104-CA\n\n UT App 79 [CITATION]\n\n¶5 Thompson told the trooper that all the seized evidence\nbelonged to him. Oreilly told the sergeant and the trooper that the\npipe and a grinder belonged to her. She also informed the trooper\nthat the substance in the syringes was methamphetamine, not\nheroin, stating, “I can guarantee you that whatever you did find,\nit ain’t heroin. I could guarantee you that it’s probably\nmethamphetamine.” The trooper observed and took pictures of\nneedle marks and bruising on Oreilly’s arms. The trooper later\nreviewed a video recorded while Oreilly and Thompson were\nseated in his patrol car. The video showed Oreilly acknowledging\nto Thompson that she knew used syringes were present in the\nvehicle and stating that she had disposed of a syringe in the rest\nstop bathroom. The video also showed Oreilly and Thompson\ndiscussing who should take responsibility for the seized evidence,\nwith Oreilly stating, “So, I don’t know what to do and this is\ngonna sound really shitty but maybe you should take the blame\nand then I’ll bail you out babe.” Later in the recording, Oreilly\nsaid to Thompson, “If it goes all on me, then I can’t get you out. . . .\nIs it selfish of me to make you take all the rap? Was that selfish of\nme?”\n¶6 Oreilly was subsequently charged with possession of\nmethamphetamine, possession of marijuana, and possession of\ndrug paraphernalia. Thompson was charged in a separate\ninformation with the same crimes. At their initial appearance,\nOreilly and Thompson were provided with a copy of the\napplicable information and advised of their right to counsel. Both\ndefendants asked the court to continue the initial appearances\nuntil they could hire an attorney. After noting that Oreilly’s case\nand Thompson’s case were assigned to two different judges, the\ndistrict court stated, “I think just pretrial, we could probably keep\nthe cases together.”\n\n[SEGMENT 5]\n¶7 In June 2018, an attorney appeared before the district court\non behalf of both Oreilly and Thompson. When the court asked\nwhether the two matters should be heard together, the attorney\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nresponded, “Yeah. It’s the same facts and we can consolidate\nthem[.]” The cases were then set for a preliminary hearing, but\nOreilly later waived her right to a preliminary hearing. The\nattorney represented Oreilly at her arraignment and entered a\nplea of not guilty on her behalf.\n¶8 The attorney subsequently attended several hearings on\nvarious matters involving Oreilly’s case. Nothing in the\ntranscripts of these hearings indicates that the district court ever\ninquired into the propriety of the attorney’s joint representation\nof Oreilly and Thompson. Nor does the record show that the\nattorney or Oreilly raised any concerns with the court stemming\nfrom the attorney’s joint representation. In fact, at a pretrial\nconference in January 2020, it was the attorney who asked the\ncourt to “consolidate the two cases and try them together.” In May\n2020, the attorney again told the district court he had “no\nobjection to consolidating the cases and just having one jury and\none trial for both cases.” In June 2021, the attorney indicated he\nand his clients were “comfortable” with a joint trial. Oreilly was\npresent for this hearing. She did not express any concerns with\nthe attorney’s joint representation, and the district court did not\ninquire into the possibility of a conflict of interest.\n¶9 Oreilly and Thompson were tried together in August 2022.\nNeither defendant was incarcerated at the time of trial and neither\nappeared for the one-day trial. The State presented, inter alia, the\ntestimony of the trooper and the sergeant describing their\nencounter with Oreilly and Thompson, as summarized above.\nThe attorney for Oreilly and Thompson did not call any witnesses\nfor the defense, but during closing argument, he highlighted that\nthe vehicle in which the drugs and paraphernalia were found was\nnot owned by Oreilly or Thompson, implying the items could\nbelong to the owner. The attorney also questioned whether the\nofficers acted properly in video-recording Oreilly and Thompson\nwhile they sat in the trooper’s patrol car.\n\n\n[CITATION] State v. Oreilly\n\n¶10 The jury found Oreilly and Thompson guilty of all charged\ncrimes, and the court later imposed sentences for each. Oreilly\nthen filed this timely appeal.\n\n ISSUE AND STANDARD OF REVIEW\n¶11 Oreilly seeks reversal of her convictions based on a claim\nof ineffective assistance of counsel. The Sixth Amendment to the\nUnited States Constitution guarantees a criminal defendant the\nright to effective assistance of counsel. 2 See [CITATION]. “When a claim of ineffective\nassistance of counsel is raised for the first time on appeal, there is\nno lower court ruling to review and we must decide whether the\ndefendant was deprived of the effective assistance of counsel as a\nmatter of law.” [CITATION].\n¶12 Typically, a defendant challenging her conviction based on\nineffective assistance of counsel must demonstrate that counsel’s\nperformance was deficient and that she was prejudiced by the\ndeficient performance. See [CITATION]. Here, however, Oreilly’s ineffective assistance claim is\nbased on allegations that her attorney’s joint representation of her\nand her codefendant gave rise to a conflict of interest. Absent\nspecial circumstances not present in this matter, see [CITATION],\nan appellant asserting an\nineffective assistance claim based on an actual conflict of interest\n\n2. Oreilly also raises an ineffective assistance of counsel claim\nunder Article I, Section 12 of the Utah Constitution. Because she\ndoes not differentiate between her federal and state claims, we\nfollow the lead of the Utah Supreme Court and “consider only the\nclaim based on the federal Constitution.” [CITATION].\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\narising from joint representation can prevail without\ndemonstrating prejudice if she can show the alleged conflict\nactually existed and that it adversely affected her attorney’s\nperformance, [CITATION].\n¶13 “To establish an actual conflict of interest, [an appellant]\nmust show a conflict that affected counsel’s performance—as\nopposed to a mere theoretical division of loyalties.” [CITATION]\n(quotation simplified). A conflict arising from joint representation affects counsel’s\nperformance if “arguments or actions allegedly omitted would\nlikely have been made by other counsel” and there was no\n“tactical reason (other than the asserted conflict) for the\nomission.” [CITATION]\n\n ANALYSIS\n I. A Preliminary Matter\n¶14 As an initial matter, the State argues Oreilly cannot\nproceed under the theory that an actual conflict existed because\nshe did not timely object to the attorney’s joint representation.\nThis argument is based on a misreading of both United States\nSupreme Court and Utah precedent.\n¶15 In [CITATION], the United\nStates Supreme Court addressed a claim that trial counsel was\nconstitutionally ineffective because he simultaneously\nrepresented three codefendants. [CITATION]. Counsel repeatedly\nalerted the trial court to a “probable risk of a conflict of interests”\narising from his joint representation. [CITATION]. The trial\ncourt, however, failed to appoint new counsel or inquire into the\nnature and scope of the alleged conflict. [CITATION]. Under these\ncircumstances, the Supreme Court held that the defendant was\nentitled to a presumption the conflict resulted in ineffective\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nassistance of counsel and the “automatic” reversal of his\nconviction. [CITATION]. Two years later, in [CITATION], the Supreme Court refused to extend its automatic\nreversal ruling to a situation where the alleged conflict arising\nfrom joint representation was not brought to the attention of the\ntrial court. See [CITATION]. The Supreme Court held that a\npresumption of an actual conflict and accompanying automatic\nreversal of a conviction are appropriate only when the trial court\nfails to provide “a defendant who objects to multiple\nrepresentation” with “the opportunity to show that potential\nconflicts impermissibly imperil his right to a fair trial.” [CITATION].\nOtherwise, “[u]nless the trial court knows or reasonably should\nknow that a particular conflict exists, the court need not initiate\nan inquiry.” [CITATION].\n¶16 In [CITATION], this court\napplied the holdings in Holloway and Cuyler to a situation in\nwhich the defendant and his codefendant were represented by\ntwo attorneys from the same public defender office. See [CITATION].\nThis court noted that the Sixth Amendment does not\nrequire a trial court to question the propriety of joint\nrepresentation sua sponte unless the court knows or reasonably\nshould know that a conflict exists because of the joint\nrepresentation. [CITATION]. As the Supreme Court stated in\n[CITATION], “[a]bsent special circumstances, . . . trial courts may\nassume either that multiple representation entails no conflict or\nthat the lawyer and his clients knowingly accept such risk of\nconflict as may exist.” [CITATION]. See also [CITATION] (“[W]here counsel makes\nno objection at trial, the trial court may presume that no improper\nconflict due to joint representation is present.”). Instead, the\npresumption of ineffective assistance and the automatic reversal\nremedy established by Holloway are triggered only when the trial\ncourt knew or should have known of a potential conflict and\nfailed to investigate. [CITATION]. One such situation—\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nthe one present in Holloway—is when a trial court fails to take\nadequate steps after a potential conflict is brought to its attention\nby an “objecting defendant.” [CITATION] at 73 (“The [CITATION] court explained\nthat the [CITATION] presumption of prejudice from a possible\nconflict of interest is only appropriate in cases where the trial\ncourt did not provide an objecting defendant with an opportunity\nto show that potential conflicts impermissibly imperil his right to\na fair trial.”) (quotation simplified).\n¶17 The State misreads these cases as precluding a criminal\ndefendant from raising an ineffective assistance claim based on a\nconflict of interest arising from joint representation without first\nshowing she made a timely objection to the joint representation—\na situation not present here. The State overlooks our cogent\nsummary of the rule applicable to joint representation set out in\n[CITATION]:\n [W]here . . . the potential conflict is brought to the\n attention of the trial court by counsel before or\n during the early stages of trial, the trial court must\n take adequate steps to resolve the issue. If a trial\n court fails to investigate such a potential conflict of\n interest, we presume prejudice and reverse. A\n defendant who fails to bring a potential conflict to\n the attention of the trial court must show on appeal\n that an actual conflict of interest existed which\n adversely affected his or her lawyer’s performance.\n[CITATION] at 922–23 (citations omitted).\n\n[SEGMENT 6]\n¶18 Thus, under our precedent, Oreilly’s failure to object to the\nattorney’s joint representation does not preclude her from raising\nan ineffective assistance claim based on allegations of a conflict of\ninterest arising from joint representation. Rather, her failure to\ntimely object means that she does not benefit from an automatic\nreversal of her conviction. Instead, she is required to show the\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nexistence of “an actual conflict which affected . . . her attorney’s\nperformance,” and if she does make such a showing, she need not\nalso “demonstrate prejudice.” [CITATION] (emphasis added). Therefore, Oreilly is not required to show\nprejudice under the traditional ineffective assistance analysis, but\nshe can prevail on the particular ineffective assistance claim she\nhas raised only if she meets her appellate burden of showing that\nan actual conflict adversely affected her attorney’s\nrepresentation. 3\n II. No Actual Conflict\n¶19 Having determined that Oreilly’s claim of ineffective\nassistance is properly before this court, we must address whether\nshe has met her burden of showing the existence of an actual\nconflict of interest that affected her counsel’s performance. “In\norder to show an actual conflict of interest existed, a defendant\nmust point to specific instances in the record to suggest an actual\nconflict or impairment of his or her interests. There is no violation\nwhere the conflict is irrelevant or merely hypothetical; there must\nbe an actual, significant conflict.” [CITATION]\n¶20 In [CITATION], this court considered whether the appellant met\nhis burden of showing an actual conflict where there was a\n“substantial disparity” in the evidence incriminating him and his\njointly represented codefendant. [CITATION] This court borrowed its\nsubstantial-disparity analysis from the Colorado Supreme Court’s\nopinion in [CITATION] See [CITATION]\n3. Oreilly does not claim she is entitled to the presumption her\ncounsel was ineffective because the trial court failed to investigate\na potential conflict of which it knew or should have known. See\n[CITATION]\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\ndefendants were charged with widely differing criminal activity\nand “the great bulk of the evidence introduced at trial was\ndirected toward [one defendant’s] alleged culpability.” [CITATION]\nBecause of counsel’s joint representation, he was unable to\nhighlight the evidentiary disparities to the jury. [CITATION]\nUnder these circumstances, the Colorado Supreme Court held\nthat the appellant met his burden of showing an actual conflict.\n[CITATION] The Armstrong court explained the reasoning behind\npermitting a defendant to demonstrate an actual conflict by\nshowing a substantial disparity in the evidence, stating that an\nactual conflict existed because “[f]or one defendant, the disparity\nshould be emphasized to demonstrate the weakness of the case\nagainst and lesser culpability of that defendant. For the other\ndefendant, any disparity in the quantity or quality of the evidence\nshould be ignored or diminished.” [CITATION]\n¶21 But this court reached the opposite conclusion in Webb on\nvery different facts. There, two defendants represented by two\npublic defenders from the same office were charged with\naggravated robbery. [CITATION] We held that there\nwas no substantial disparity in the evidence notwithstanding the\nfact that there was eyewitness testimony identifying only one of\nthe two defendants “as the robber in the store.” [CITATION] We noted\nthat (1) there was testimony the codefendant was directly\ninvolved in the crime and (2) the jointly represented defendants\nboth testified at trial and “gave entirely consistent, corroborative\ntestimony” supporting their joint defense that other individuals\nwere culpable for the criminal conduct charged against them. [CITATION]\nFor these reasons, we concluded that “counsel’s loyalty was not\ndivided between [two codefendants] with actual conflicting\ninterests.” [CITATION]\n¶22 We revisited the substantial disparity issue in State v.\nNewman, [CITATION] We again\ndistinguished Armstrong on the basis that the jointly represented\ndefendants in Newman “were charged essentially with the same\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\ncrimes” whereas in [CITATION] the defendants were charged with\ndiffering levels of participation in a single criminal episode. [CITATION]. Thus, we concluded, “the likelihood of a conflict” was\nnot present. [CITATION].\n¶23 Oreilly argues there was a disparity in the weight of the\nevidence between the methamphetamine charges brought against\nher and Thompson because Thompson voluntarily admitted to\nlaw enforcement that all the items found in the vehicle belonged\nto him, but she admitted only to possession of the marijuana pipe\nand grinder. 4 According to Oreilly, voluntary admissions are\namong the strongest forms of evidence available to prosecutors\nand Thompson’s admission is sufficient to establish the required\nsubstantial disparity. But [CITATION], and [CITATION] all stand\nfor the proposition that the substantial disparity inquiry is not\nfocused solely on the quantum of evidence presented against each\ncodefendant. As we stated in [CITATION], a disparity in evidence is\nnot substantial unless the differing weight raises the “likelihood\nof a conflict” because, for example, the codefendants were\ncharged with different conduct as in [CITATION]. See [CITATION]. That is not\nthe situation here.\n¶24 Oreilly and Thompson were charged with the same three\ncrimes, and they presented the same defense at trial—attempting\nto attribute the drugs and paraphernalia to the owner of the\nvehicle. These circumstances are on the same footing as those in\n[CITATION], where the jointly represented defendants were both\ncharged with the same crime—aggravated robbery—and they\npursued the same defense of placing the blame on third parties.\nSee [CITATION]. Similarly, in [CITATION], the three\n4. Because we conclude Oreilly is not entitled to relief on her\nineffective assistance claim even if we consider Thompson’s\nadmission to law enforcement, it is not necessary to resolve the\nState’s argument that Thompson’s statement was inadmissible\nhearsay that Oreilly’s attorney could not comment on at trial.\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\ncodefendants were charged with “essentially” the same crimes\nand presented the “common, unified defense” that the victim was\nthe aggressor in the incident. [CITATION]. In Newman, we\nconcluded there was no likelihood of a conflict under these\ncircumstances, distinguishing Armstrong by noting the\ncodefendants in Armstrong were charged with “disparate . . .\ncriminal conduct.” [CITATION] (quotation simplified). See also [CITATION] (“[W]hen co-defendants are accused of varying\ndegrees of participation in an episode of criminal conduct, joint\nrepresentation invariably places defense counsel in the middle of\nconflicting interests.”) (emphasis added).\n¶25 Oreilly has not identified any case in which a jointly\nrepresented defendant charged with the same crimes as her\ncodefendant has shown that a disparity in the weight of the\nevidence presented against each resulted in an actual conflict of\ninterest. Nor is this a case in which the rule should be extended to\nsuch a situation, because even assuming the weight of the\nevidence against Thompson exceeded the weight against Oreilly,\nthat disparity did not create the likelihood of a conflict.\n¶26 Oreilly was charged with possession of\nmethamphetamine, possession of marijuana, and possession of\ndrug paraphernalia. “For possession charges, the circumstantial\nevidence necessary to convict is evidence showing a sufficient\nnexus between the accused and the contraband to permit an\ninference that the accused had both the power and the intent to\nexercise dominion and control over the contraband.” [CITATION] (quotation simplified). A\njury may consider, inter alia, “ownership and/or occupancy of the\nresidence or vehicle, presence of the defendant when the\ncontraband is discovered, the defendant’s proximity to the\ncontraband, previous drug use by the defendant (if the\ncontraband is drug-related), incriminating statements or\nbehavior, and presence of contraband in a specific area where the\ndefendant had control.” [CITATION] (quotation simplified). Although\n\n 20230104-CA\n\n UT App 79 State v. Oreilly\n\nThompson told officers he owned the drugs and paraphernalia,\nUtah law criminalizes possession, not ownership. Ownership is only\none of numerous factors that a jury may consider when it\nevaluates whether a defendant is guilty of possession. See id.\n¶27 Oreilly concedes the evidence against her “was not\ninsignificant.” As to the marijuana and paraphernalia charges, she\nspecifically told the trooper and the sergeant that the pipe and a\ngrinder belonged to her. The evidence showing Oreilly also\npossessed methamphetamine included her conversation with\nThompson while they sat in the trooper’s patrol car. She told\nThompson she threw a syringe away in the rest stop bathroom.\nThat statement is consistent with the trooper’s testimony that\nOreilly appeared to be under the influence of drugs when she\nexited the bathroom. There was also testimony Oreilly had needle\nmarks and bruising on her arms, indicating previous drug use.\nOreilly and Thompson also discussed the used syringes found in\nthe vehicle and whether it was illegal to keep them after using\nthem. Oreilly later told the trooper that any drugs officers found\nwere methamphetamine, not heroin. And, critically, there was\ntestimony that all the seized evidence was accessible to both the\ndriver and the passenger.\n\n[SEGMENT 7]\n¶28 Our review of the record confirms that any defense\nOreilly’s attorney could pursue on her behalf would not be\nmaterially aided by Thompson’s admission that he owned all the\ndrugs and paraphernalia. “[P]ossession of a controlled substance\nneed not be exclusive and is often joint.” [CITATION] The\nState’s evidence shows that Oreilly “had both the power and the\nintent to exercise dominion and control over the contraband”\neven if Thompson owned the contraband or also possessed it.\n[CITATION] Thus,\nThompson’s admission of ownership did not diminish Oreilly’s\nculpability on the possession charges, let alone potentially\nexculpate her of the charges. Under the circumstances here,\n\n 20230104-CA\n\n UT App 79 [CITATION]\n\nownership was essentially irrelevant and Oreilly has not shown\nhow her attorney could use Thompson’s admission in her favor.\nThus, there is no likelihood that any disparity in evidence gave\nrise to an actual conflict of interest.\n\n CONCLUSION\n¶29 Because Oreilly has failed to demonstrate an actual conflict\nof interest that resulted in the denial of effective assistance of\ncounsel, she is not entitled to the relief she seeks, and her\nconvictions are affirmed.\n\n\n 20230104-CA\n [CITATION] \n2024 UT App 29\n\n THE UTAH COURT OF APPEALS\n STATE OF UTAH,\n Appellee,\n v.\n NAWAF RAHEEM,\n Appellant.\n Opinion\n No. 20200720-CA\n Filed March 7, 2024\n Third District Court, Salt Lake Department\n The Honorable James T. Blanch\n No. 151910845\n Freyja Johnson, Emily Adams, and Hannah\n Leavitt-Howell, Attorneys for Appellant\n Sean D. Reyes and Marian Decker,\n Attorneys for Appellee\n JUDGE GREGORY K. ORME authored this Opinion, in which\n JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.\nORME, Judge:\n¶1 Nawaf Raheem challenges his conviction for aggravated\nsexual assault on several grounds. He contends that the State\nprovided insufficient evidence at trial to support the mens rea\nelement of the crime. He also argues that his trial attorney\n(Counsel) was constitutionally ineffective by failing to investigate\nand call a witness to testify in his defense. Relatedly, he seeks\nreversal “in the interests of fairness” based on our recent reversal\nof his co-defendant’s conviction on an ineffective assistance of\ncounsel claim. Lastly, he argues that improper statements from\nthe State and inadmissible testimony from its witnesses prevented\nhim from receiving a fair trial. We affirm. [CITATION]\n\n BACKGROUND 1\n¶2 One night in October 2012, Shannon 2 and a coworker\n(Coworker) visited a hookah lounge that they frequented. The\nhookah lounge was “a big party place” at which people would\nsmoke hookah, listen to music, and dance. There, Shannon and\nCoworker were joined by another friend (Friend) and Shannon’s\nthen-boyfriend. Raheem, the owner of the hookah lounge, and\nKevin Salazar, a regular customer, were also there that night.\nShannon considered both Raheem and Salazar to be her friends.\n¶3 At trial, Shannon testified that Salazar, who looked as if he\nhad been crying, asked her to join him in a storage closet to talk.\nShe stated that he shut the door behind her and began kissing her\nneck. Shannon told Salazar to stop, that she had a boyfriend, and\nthat she “didn’t want to be in there,” but he was undeterred.\n¶4 Because it had been “a minute,” Friend went to look for\nShannon. She knocked on the storage closet door and tried to\nenter, but the door was locked. Raheem, who had also been\nstanding outside the storage closet, then knocked on the door.\nSalazar opened the door for him, and Raheem “slid” inside. One\nof the men locked the door behind Raheem, leaving Friend\noutside and unable to enter. Friend testified that she then “just\nstarted banging on the door.” At one point after Raheem entered,\nFriend heard Shannon say, “Help me.” 3\n\n1. “On appeal, we recite the facts from the record in the light most\nfavorable to the jury’s verdict and present conflicting evidence\nonly as necessary to understand issues raised on appeal.” [CITATION]\n2. A pseudonym.\n3. Friend initially testified that Raheem was still in the hallway\nwhen she heard Shannon say, “Help me.” But on\n (continued…)\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n¶5 Shannon testified that when she heard Raheem knock on\nthe door, she thought she “was going to be able to walk out of that\nroom” and that Raheem would “stop the situation.” But instead\nof helping Shannon, Raheem pushed her against Salazar, bent her\nover, pulled down her pants, and vaginally penetrated her with\nhis penis. At the same time, Salazar removed his pants and\ninserted his penis into her mouth. Shannon did not “agree[] to\nwhat was going on,” but she could not recall whether she said\nanything.\n¶6 Shannon next recalled them all being on the ground, with\nher on top of Salazar and Raheem behind her. Salazar “was\nhaving sex vaginally and [Raheem] was anally.” She again could\nnot remember whether she said anything at that point. While\ndoing this, the men “high fived” each other and Salazar said,\n“Double penetration.” At some point, they also removed\nShannon’s bra, leaving her “basically nude.”\n¶7 When Shannon heard Friend “banging on the door” and\n“yelling” “something about a key,” she began to cry, and Salazar\nand Raheem stopped assaulting her. Shannon then dressed, ran\nout of the storage closet, and left the hookah lounge. Shannon’s\nboyfriend had already left the hookah lounge at that\npoint.\n¶8 Friend estimated that approximately five minutes had\npassed between when she began “banging on the door” and when\nShannon exited the closet. Friend pursued Shannon, briefly\nreturning to the hookah lounge to retrieve Shannon’s purse and\nkeys, and the two left. Friend testified that Shannon “was really\ndistraught,” crying and saying, “Help me.” In the car, Shannon\ntold Friend what had happened in the storage closet. Shannon\ncross-examination, Friend clarified that she heard Shannon’s cry\nfor help after Raheem entered the storage closet.\n\n[CITATION]\n\nthen dropped Friend off at home and told her that “she was going\nto go home and call the police.”\n¶9 Coworker testified that when Shannon returned from the\nstorage closet, “she was hysterical, sobbing,” and “barely able to\nform sentences because she was crying so hard.” Shannon told\nher, “I have to go. I have to get out of here,” and, “[W]e have to\ngo. I was raped. These two guys took me into a closet and raped\nme.” Shannon then yelled “at a group of individuals” “something\nto the effect of, ‘I can’t believe you did this. I’m going to make you\npay.’” Coworker offered to take Shannon to the emergency room,\nbut she declined the offer and “just wanted to go to her car.”\n¶10 Shannon did not call the police when she arrived home.\nInstead, she called another friend and told him that she had been\nraped. The friend reported the rape to the police. A detective met\nwith Shannon that same night, and she told him what had\nhappened at the hookah lounge. The detective testified that\nduring the conversation, Shannon would not look him in the eye\nand her posture was “slumped, saddened.”\n¶11 The detective convinced Shannon to go to the hospital that\nnight for an examination. The examination revealed some bruises\nand abrasions on Shannon’s body, as well as injuries to the\nperineum, below the rectum, and to the rectum. The examining\nnurse testified at trial that Shannon’s examination “stuck out” to\nher because “it was the worst rectal injury [she had] seen on a\npatient.” But she conceded that it was nonetheless possible for\nthose injuries to be the product of consensual sex. The nurse also\ntestified that, among other things, during the examination,\nShannon “stated she felt as though she blacked out during the\nassault.”\n¶12 At the time, Shannon did not “want to go forward with the\nprosecution of the case” because she did not wish to cause stress\nto her dying father. Given that she and Raheem “were around the\nsame areas, same places,” she saw Raheem “a few times” after\nthat night. But because she “didn’t want to make a scene,” and\n\n[CITATION]\n\nbecause she “wasn’t going to move forward with anything,” she\n“acted like nothing happened” on such occasions. On\ncross-examination, Shannon stated that she did return to the\nhookah lounge with friends in 2013, but she did not recall seeing\nRaheem at that time. She also stated she saw Raheem at a party in\n2016 and that she came within eight feet of him. Shannon could\nnot remember whether she saw Salazar again after the night of the\nparty.\n\n[SEGMENT 8]\n¶13 In 2015, a year after her father passed away, Shannon was\ncontacted by the producers of a television program that dealt in\nunresolved crimes. The producers were interested in her case and\nShannon agreed to participate in the show. As a result, the police\nreopened the case.\n¶14 With Shannon’s cooperation, the State charged Salazar and\nRaheem each with one count of aggravated sexual assault.\nRaheem and Salazar, represented by different counsel, were tried\njointly in 2019—nearly seven years after the sexual assault in the\nstorage closet. At trial, the State presented testimony from, among\nothers, Shannon, Friend, Coworker, the friend who called the\npolice, the detective who interviewed Shannon on the night of the\nincident, a detective who interviewed Shannon in 2015, and the\nexamining nurse. That testimony is recounted, in relevant parts,\nabove. Of note, Shannon’s testimony contained multiple instances\nin which she could not remember specifics and had to refresh her\nmemory by reviewing copies of her police interview, the report\nfrom the sexual assault exam, and the preliminary hearing\ntranscript. Additionally, as detailed in Part III.A below, certain\nstatements made by the witnesses and by the prosecutors were\nthe subject of objections and a motion for mistrial.\n¶15 As part of his defense case, Raheem called his brother and\na friend to testify. His brother testified that he was working at the\nhookah lounge that night and that he eventually went looking for\nRaheem. He stated that when he knocked on the storage closet\ndoor, Raheem stepped out, followed by Shannon. He stated that\nShannon smiled at him and that she did not appear to be upset or\n\n[CITATION] State v. [CITATION]\n\nto have been crying. He had not heard “any screaming or crying\nor anybody call for help” before knocking on the door. He testified\nthat Friend then appeared and pulled Shannon by the arm, and\nthe two “start[ed] walking and talking.”\n¶16 Raheem’s friend testified that he was also at the hookah\nlounge that night and that he saw Salazar and Shannon walk into\nthe storage closet, followed about a minute later by Raheem. He\ndid not hear “any crying, screaming or calls for help” coming\nfrom the closet before or after Raheem entered. He stated that\napproximately five minutes later, he saw Raheem’s brother knock\non the door and that Raheem, Salazar, and Shannon all exited the\ncloset. To him, Shannon did not appear upset or to have been\ncrying. He testified that Friend, who did appear upset, then\napproached Shannon and pulled her away.\n¶17 During closing argument, Counsel asserted, among other\nthings, that Shannon, Raheem, and Salazar engaged in a\nconsensual threesome in the closet. He argued that Shannon’s\nreturning to the hookah lounge in 2013 and coming within eight\nfeet of Raheem at the 2016 party suggested that she had not been\nsexually assaulted that night. He further asserted that Shannon’s\ntestimony was unreliable and that it should be disregarded in its\nentirety.\n¶18 The jury convicted Raheem and Salazar as charged.\nSubsequently, through new counsel, Raheem filed motions to\narrest judgment and for a new trial. In the motion to arrest\njudgment, he argued, in relevant part, that the State failed to\nprove that he “at the very least . . . acted recklessly in regard to\n[Shannon’s] consent.” And in the motion for a new trial, Raheem\nargued, among other things, that he was entitled to a new trial\nbecause Counsel was ineffective for failing to investigate and call\nRaheem’s then-girlfriend (Girlfriend) to testify as part of the\ndefense and that the State and its witnesses made several\nimpermissible statements throughout trial. The trial court denied\nboth motions.\n\n\n [CITATION] State v. Raheem\n\n¶19 Raheem appeals. 5\n\n ISSUES AND STANDARDS OF REVIEW\n¶20 Raheem raises three issues for our consideration. First, he\nargues that the State failed to prove that he was at least reckless\nas to Shannon’s nonconsent. He raised this argument before the\ntrial court in a motion to arrest judgment. 6 “We review a district\ncourt’s grant or denial of a motion . . . to arrest judgment for\ncorrectness.” [CITATION] (quotation simplified). We will “uphold a denial of the motion . . .\nto arrest judgment based on an insufficiency of the evidence\n\n5. Salazar separately appealed. See [CITATION]. We\nreversed Salazar’s conviction and remanded for a new trial. See id.\n¶ 60; infra Part II.B.\n6. Citing [CITATION], the State\nargues that this sufficiency challenge is unpreserved because it\ncould have been raised at trial. See id. ¶ 49 n.15 (“[A]n objection\nthat could have been raised at trial cannot be preserved in a\npost-trial motion.”). In response, Raheem contends that the State’s\nbroad interpretation of Fullerton “skirt[s] the plain language” of\nrule 23 of the Utah Rules of Criminal Procedure, which says that\n“At any time prior to the imposition of sentence, the court upon\nits own initiative may, or upon motion of a defendant shall, arrest\njudgment if the facts proved or admitted do not constitute a public\noffense, or the defendant is mentally ill, or there is other good\ncause for the arrest of judgment.” Raheem further asserts that\n“[CITATION] simply asserts that defendants cannot ‘preserve issues\nlike prosecutorial misconduct through motions to arrest\njudgment.’” See [CITATION]. Because we\nultimately resolve the merits of this argument in the State’s favor,\nwe need not resolve this preservation issue. See [CITATION].\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nclaim, if some evidence exists from which a reasonable jury could\nfind that the elements of the crime had been proven beyond a\nreasonable doubt.” Id. (quotation simplified). See [CITATION],\n2020 UT 65, ¶ 31, 477 P.3d 1251 (“We reverse the denial of a\nmotion to arrest judgment only if the evidence, viewed in the light\nmost favorable to the verdict, is so inconclusive or so inherently\nimprobable as to an element of the crime that reasonable minds\nmust have entertained a reasonable doubt as to that element.”)\n(quotation simplified).\n¶21 Second, Raheem argues that Counsel was ineffective for\nfailing to investigate and present evidence at trial that would have\nundercut Shannon’s credibility. Although Raheem raised this\nissue in his motion for a new trial, “[t]here is no reason . . . to\ndepart from the standard of review set out in [CITATION] simply\nbecause the appeal was preceded by a motion for new trial.” [CITATION],\n805 P.2d 182, 185–86 (Utah 1990). That is, “ineffective\nassistance of counsel claims present a mixed question of fact and\nlaw.” Id. at 186 (citing [CITATION], 466 U.S. 668, 698\n(1984)). We thus “review a trial court’s application of the law to\nthe facts for correctness and, if applicable, we review the court’s\nfindings of fact for clear error.” [CITATION], 2021 UT\nApp 74, ¶ 26, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah 2021).\nSee [CITATION], 2022 UT App 38, ¶ 31 & n.14, 509 P.3d 198, cert.\ndenied, 525 P.3d 1258 (Utah 2022).\n¶22 Third, Raheem argues that “[i]mproper statements from\nthe State and inadmissible testimony from its witnesses prevented\n[him] from receiving a fair trial.” 7 He also raised this argument in\na motion for a new trial. We “generally review a district court’s\ndenial of a motion for a new trial for abuse of discretion, but we\n\n7. The State argues that although certain objectionable statements\nwere the subject of unsuccessful motions for mistrial, this\nargument is also unpreserved because Raheem first raised the\n“expanded cumulative-prejudice claim in a post-verdict motion.”\nFor the same reason discussed above, see supra note 6, we do not\nreach this preservation argument.\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nreview any underlying legal conclusions for correctness.” [CITATION].\n\n ANALYSIS\n I. Sufficiency of the Evidence\n¶23 To convict Raheem of aggravated sexual assault, the State\nhad to prove not only that Shannon did not consent to the sexual\nactivity that occurred in the storage closet but also that Raheem\nwas, at the very least, reckless as to Shannon’s nonconsent. See\nUtah Code Ann. § 76-2-102 (LexisNexis 2017) (“Every offense not\ninvolving strict liability shall require a culpable mental state, and\nwhen the definition of the offense does not specify a culpable\nmental state and the offense does not involve strict liability, intent,\nknowledge, or recklessness shall suffice to establish criminal\nresponsibility.”); id. § 76-5-405(2)(a) (Supp. 2023) (stating that an\nelement of aggravated sexual assault includes the commission of\nrape or forcible sodomy); [CITATION] (“The crime of rape [or forcible sodomy] requires proof not\nonly that a defendant knowingly, intentionally, or recklessly had\nsexual intercourse [or engaged in sodomy], but also that he had\nthe requisite mens rea as to the victim’s nonconsent.”) (quotation\nsimplified). On appeal, Raheem challenges only the sufficiency of\nthe State’s evidence of his recklessness as to Shannon’s\nnonconsent.\n\n[SEGMENT 9]\n¶24 A person acts recklessly\n with respect to circumstances surrounding his\n conduct or the result of his conduct when he is\n aware of but consciously disregards a substantial\n\n8. Because the applicable provisions of the Utah Code in effect at\nthe relevant time do not differ from those currently in effect in any\nway material to this appeal, we cite the current version of the code\nfor convenience.\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n and unjustifiable risk that the circumstances exist or\n the result will occur. The risk must be of such a\n nature and degree that its disregard constitutes a\n gross deviation from the standard of care that an\n ordinary person would exercise under all the\n circumstances as viewed from the actor’s\n standpoint.\nId. § 76-2-103(3) (2017). Thus, the State was required to prove, at\nthe very least, that Raheem “was subjectively aware of but\nconsciously disregarded the risk” of Shannon’s nonconsent. [CITATION] (quotation\nsimplified). See [CITATION] (stating\nthat one is reckless when “one perceives a risk and consciously\ndisregards it”).\n¶25 “Intent can be proven by circumstantial evidence.” [CITATION] (quotation simplified).\nIndeed, “unless a confession is made by the defendant concerning\nintent, or unless the court is somehow able to open the mind of\nthe defendant to examine his motivations, intent is of necessity\nproven by circumstantial evidence.” Id. (quotation simplified).\nAnd in determining intent, “the factfinder . . . is entitled to draw\nall reasonable inferences from the facts and from the actions of the\ndefendant.” Id. (quotation simplified). See id. ¶ 106 (“The criminal\nintent of a party may be inferred from circumstances such as\npresence, companionship, and conduct before and after the\noffense.”) (quotation simplified). “A jury’s inference is reasonable\nunless it falls to a level of inconsistency or incredibility that no\nreasonable jury could accept.” [CITATION] (quotation simplified). Thus, where the evidence\nsupporting an element of a crime is circumstantial, which will\nalmost always be the case for the mens rea element, “we must\ndetermine . . . whether the inferences that can be drawn from that\nevidence have a basis in logic and reasonable human experience\nsufficient to prove each legal element of the offense beyond a\nreasonable doubt.” [CITATION]\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n391 (quotation simplified). “The issue is not whether some other\n(innocent) inference might have been reasonable. It is simply\nwhether the inference adopted by the jury was sustainable.”\n[CITATION]. An inference is\nnot sustainable if it “give[s] rise to only remote or speculative\npossibilities of guilt.” [CITATION].\n¶26 In denying Raheem’s motion to arrest judgment, the trial\ncourt concluded that “there was sufficient evidence at trial for the\njury to find [Raheem] at the very least acted recklessly in raping\nor sodomizing” Shannon. Pointing to Shannon’s testimony that\nshe was trying to exit the storage closet at the time Raheem\nentered, the court stated that “[t]he jury could reasonably have\nconcluded [Raheem] locked the door, creating a circumstance\nwhere he could prevent [Shannon] from leaving the room and\ncould overcome her through physical force.” The court also\npointed to Friend’s testimony that she heard Shannon call for help\nsometime after Raheem entered the storage closet “and the door\nwas not opened for at least five minutes, creating a circumstance\nwhere the jury could have believed [Shannon] did not consent\nthrough words or conduct.” The court also stated that the jury\nheard testimony from the examining nurse that Shannon told her\n“she felt as though she blacked out during the assault,” which\n“create[ed] a circumstance where the jury could reasonably\nbelieve [Raheem] knew [Shannon] was unconscious or unaware\nthe acts were occurring.” Finally, the court stated that “it is\nreasonable for the jury to conclude a person engaging in sexual\nactivity with another person in a small and cramped space would\nnot consent to a third person approaching her from behind,\nremoving her pants, and penetrating her anally with his penis,”\ncausing “severe” rectal injuries that “were consistent with\nnonconsensual sexual acts.”\n¶27 On appeal, Raheem argues that “[t]he evidence the district\ncourt relied on in its analysis does not prove that [he] acted with\na criminal mindset about [Shannon’s] nonconsent.” He then raises\nseveral challenges to the court’s analysis:\n\n20200720-CA\n\n UT App 29 [CITATION]\n\n • He asserts that the act of locking the closet door “does not\n support an inference that [he] was aware of and\n consciously disregarded a risk that [Shannon] did not\n consent” because “[i]t is common to lock a door when\n engaging in consensual sexual activity” and because\n Shannon did not testify that she took any action that should\n have alerted [CITATION] to the fact that she was trying to exit\n the storage closet.\n • He takes issue with the court’s suggestion that the jury\n could infer that he was reckless as to Shannon’s nonconsent\n based on the type and location of sexual activity that\n occurred because “[i]ndividuals engage in diverse\n consensual sexual activity.”\n • He challenges the court’s conclusion that the jury could\n infer recklessness from Friend’s testimony that the door\n was not opened for five minutes after Friend heard\n Shannon call for help from the inside. He contends that,\n even crediting Friend’s testimony, any such inference “is\n unsupported speculation” because Shannon testified that\n the men ceased the sexual intercourse when she started\n crying and the fact “[t]hat it took five minutes for the three\n to dress and emerge does not support an inference that [he]\n continued sex.”\n • He argues that the court’s focus on the injuries the\n examining nurse documented during the sexual assault\n examination was improper because those injuries went\n toward consent rather than recklessness. And he asserts\n that, in any event, the injuries did not establish nonconsent\n because the nurse testified that they could have been\n caused by consensual intercourse.\n • He argues that the court’s reliance on the examining\n nurse’s testimony that Shannon “stated she felt as though\n she blacked out during the assault” was inappropriate\n because “[w]ithout information about timing, evidence\n\n[CITATION]\n\n that [Shannon] ‘felt as though she blacked out’ at some\n unspecified moment does not support an inference that\n [he] was aware of and disregarded a risk that she did not\n consent during the sexual activity.” He further argues that\n the evidence did not support an inference that Shannon\n visibly lost consciousness.\n¶28 In addition to challenging the court’s reasons for denying\nhis motion to arrest judgment, [CITATION] contends that the State\npresented insufficient evidence in other respects to prove that he\nwas at least reckless as to Shannon’s nonconsent. 9 He argues the\nfollowing points:\n • Shannon told Salazar to stop kissing her on the neck and\n that she “didn’t want to be in” the storage closet before\n [CITATION] entered the closet, and the State presented no\n evidence that [CITATION] heard this interaction from the\n other side of the door.\n • Although Shannon testified that she “was trying to get\n out” when [CITATION] entered the closet, “she did not testify\n that she did or said anything at that point” that would\n have made him aware of that fact.\n • After [CITATION] entered the closet, Shannon “did not testify\n about any verbal or nonverbal cues that could have made\n\n\n9. [CITATION]’s arguments are limited to addressing the first part of\nthe recklessness definition, i.e., whether he was “aware of but\nconsciously disregard[ed] a substantial and unjustifiable risk\nthat” Shannon did not consent. Utah Code Ann. § 76-2-103(3)\n(LexisNexis 2017). He does not argue that the risk was not “of\nsuch a nature and degree that its disregard constitute[d] a gross\ndeviation from the standard of care that an ordinary person\nwould exercise under all the circumstances as viewed from [his]\nstandpoint.” Id.\n\n[CITATION] State v. Raheem\n\n [him] aware that she did not consent” to the sexual activity\n that was about to occur.\n • Shannon “did not testify to any actions or reactions that\n would have made [him] aware of a risk that she did not\n consent” either when he bent her over and had vaginal sex\n with her or when he had anal sex with her after they were\n all on the ground. To the contrary, he points to the fact that\n Shannon testified that both men ended the sexual\n encounter when she started crying. “Thus,” he argues,\n “when [Shannon] did exhibit a nonverbal cue that she did\n not consent, the men heeded that cue and stopped.”\n\n[SEGMENT 10]\n¶29 But even taking all the above arguments at face value, the\njury nonetheless heard sufficient evidence from which it could\nreasonably infer that Raheem acted recklessly as to Shannon’s\nnonconsent. As an initial matter, Friend testified that Raheem was\nalso present in the hallway when she initially knocked on the\nlocked door and tried to enter the storage closet. After Friend’s\nefforts proved unsuccessful, Raheem knocked, and the door was\nopened for him. From this testimony, the jury could reasonably\ninfer that Raheem was aware that Friend was concerned about\nwhat was transpiring in the storage closet. But Raheem did not\nhold the door open for Friend to also enter. Instead, he “slid\nthrough the door” and one of the men locked it behind him.\nShannon testified that as soon as Raheem entered the closet, he\npushed her against Salazar, bent her over, pulled down her pants,\nand began having vaginal sex with her, all while Salazar also\ninserted his penis into her mouth. This bears none of the usual\nhallmarks of consensual sex. There was no evidence presented\nthat there had been a prior agreement between the three to have\nsex in the closet—to the contrary, Shannon testified that before\nRaheem entered the closet, she told Salazar that his sexual\nadvances were unwelcome and that she wanted to leave. Nor did\nRaheem ask any questions to ascertain whether Shannon would\nconsent to sexual intercourse. And even in the absence of any\nindication from Shannon that she did not consent to the sexual\nactivity, there was also no evidence presented that Shannon\n\n[CITATION] State v. Raheem\n\nsuggested to Raheem in any way that she would consent to such\naction, if taken. For example, Shannon did not voluntarily bend\nover; instead, Raheem pushed her against Salazar and caused her\nto bend over. And Raheem—not Shannon—was the one to\nremove her pants in the absence of any indication that this would\nmeet with Shannon’s approval.\n¶30 In sum, the State presented evidence that Raheem entered\nthe storage closet after observing a concerned Friend\nunsuccessfully try to do the same. When the door was opened for\nhim, he “slid” inside and did not permit Friend to enter. Once in\nthe closet, both men began engaging in sexual activity with\nShannon—which was initiated without any indication from\nShannon suggesting that she was a willing participant. Based on\nthe evidence of these circumstances, coupled with “reasonable\nhuman experience,” [CITATION], a jury could reasonably infer that\nRaheem was, at the very least, “aware of but consciously\ndisregard[ed] a substantial and unjustifiable risk” that Shannon\ndid not consent when he pushed her against Salazar, removed her\npants, and began having sexual intercourse with her, Utah Code\nAnn. § 76-2-103(3) (LexisNexis 2017).\n¶31 For the foregoing reasons, we reject Salazar’s challenge to\nhis conviction on sufficiency of the evidence grounds.\n II. Ineffective Assistance of Counsel\n¶32 Raheem argues that Counsel was constitutionally\nineffective for failing to investigate and call Girlfriend to testify in\nhis defense. He makes two arguments related to this claim of\nineffective assistance. First, he argues the merits of the claim.\nSecond, he seeks reversal “in the interests of fairness” based on\nour recent reversal of his co-defendant Salazar’s conviction on\nineffective assistance grounds. See [CITATION]. We\nhold that Raheem is not entitled to reversal on either ground.\n\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nA. The Merits\n¶33 To prevail on a claim of ineffective assistance of counsel, a\ncriminal defendant must show both that (1) “counsel’s\nperformance was deficient” and (2) “the deficient performance\nprejudiced the defense.” [CITATION]. Here, because we hold that Raheem has failed to establish\nthat counsel performed deficiently, we need not also address\nprejudice. See [CITATION] (“A defendant’s inability to establish either element defeats a\nclaim for ineffective assistance of counsel[.]”) (quotation\nsimplified), cert. denied, [CITATION].\n¶34 To satisfy the deficient performance element, the\ndefendant must overcome the “strong presumption that counsel’s\nconduct falls within the wide range of reasonable professional\nassistance,” [CITATION], and show that defense\ncounsel’s actions “fell below an objective standard of\nreasonableness,” [CITATION]. Under this standard, it is insufficient\nto merely show that counsel erred. See [CITATION]. Rather, “the ultimate question is always\nwhether, considering all the circumstances, counsel’s acts or\nomissions were objectively unreasonable.” [CITATION].\n¶35 “An attorney has a duty to conduct a reasonable\ninvestigation into the facts of his client’s case and to make\nreasonable decisions regarding the proper scope of that\ninvestigation.” [CITATION]. “If\ncounsel does not adequately investigate the underlying facts of a\ncase, including the availability of prospective defense witnesses,\ncounsel’s performance cannot fall within the wide range of\nreasonable professional assistance.” [CITATION] (quotation simplified). Defense counsel’s\n“decision not to investigate must be directly assessed for\nreasonableness in all the circumstances, applying a heavy\nmeasure of deference to counsel’s judgments.” [CITATION]. “In evaluating the reasonableness of counsel’s\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\ninvestigation, we consider not only the quantum of evidence\nalready known to counsel, but also whether the known evidence\nwould lead a reasonable attorney to investigate further.” [CITATION],\n2014 UT 19, ¶ 37 (quotation simplified). To that end, “inquiry into\ncounsel’s conversations with the defendant may be critical to a\nproper assessment of counsel’s investigation decisions.”\n[CITATION], 466 U.S. at 691. See id. (“Counsel’s actions are usually\nbased, quite properly, on informed strategic choices made by the\ndefendant and on information supplied by the defendant. In\nparticular, what investigation decisions are reasonable depends\ncritically on such information.”).\n¶36 Raheem first raised his claim that Counsel was ineffective\nfor not investigating or calling Girlfriend to testify in his motion\nfor a new trial. The motion was accompanied by affidavits from\nhimself and Girlfriend.\n¶37 In her affidavit, Girlfriend averred that she dated Raheem\n“on and off” from 2012 to 2013 and that she “spent a lot of time\nhelping [Raheem] run” the hookah lounge as well as a different\nlounge he later ran. She stated that on the night of the assault,\nShannon came up to her and told her that she had given Raheem\n“head,” which Girlfriend understood to mean that Shannon “had\nperformed oral sex on” Raheem. Girlfriend further averred that\nShannon “did not seem upset,” nor did she tell Girlfriend that\nRaheem “forced her to perform any sex act.” Girlfriend stated\nthat, to the contrary, Shannon’s “tone of voice and expression\nseemed bragging” as if she intended to make Girlfriend jealous.\nGirlfriend later confronted Raheem about Shannon’s claim,\nresulting in an argument.\n¶38 Girlfriend stated that after that night, Shannon continued\nto frequent the hookah lounge and “act friendly with” Raheem.\nGirlfriend stated that on another night, she observed on the\nsecurity cameras Raheem and Shannon have a conversation and\nhug. Girlfriend said she confronted Raheem about the hug and\nanother argument ensued. Girlfriend stated that Counsel never\ncontacted her but that if he had called her to testify at trial, she\n\n 20200720-CA\n\n UT App 29 [CITATION]\nwould have testified as recounted above. She stated that when she\nheard that [CITATION] “went to jail,” she contacted his brother, who\nput her in touch with [CITATION]’s appellate counsel.\n¶39 In his affidavit, [CITATION] averred that he told Counsel that\nfollowing the night in question, Shannon not only continued to\nvisit the hookah lounge, as well as the other lounge he later ran,\nbut that she also “continued to be friendly and flirtatious with”\nhim and “apologized . . . multiple times for ‘the drama’ and asked\nif [they] could still be friends.” At the end of one of these\nconversations, the two hugged. He also stated that shortly after\nthe episode giving rise to the charge in this case, Girlfriend\nconfronted him, saying that Shannon told her that Shannon “had\ngiven [him] head.” [CITATION] stated that Counsel did not ask\nwhether anyone could corroborate these assertions, and he\nclaimed that if Counsel had asked, “I would have told him that”\nGirlfriend “could confirm these things.” 10\n¶40 Counsel’s investigation did, however, uncover pictures\ntaken in 2013—a few months after the sexual assault—of Shannon\nat the hookah lounge with friends and a video taken at the 2016\nparty at which Shannon was within eight feet of [CITATION]. Counsel\nintended to introduce the pictures and stills from the video at trial.\nThe State objected to the admission of the proposed exhibits\n“based on relevancy, and also being more prejudicial than\nprobative.” Counsel responded that he would not use the stills if\nShannon acknowledged that she was at the 2016 party and that\nshe felt sufficiently comfortable to come within eight feet of\n[CITATION]. But he did intend to introduce the stills if Shannon\ndenied being at the party or testified that she was “off in a corner\nscared.” He also intended to introduce the 2013 pictures if\nShannon denied returning to the hookah lounge with friends and\nhaving “a good time.” The court sustained the State’s objection\n“for now,” stating, “We’ll see how she testifies.” This issue was\n\n[SEGMENT 11]\n\n10. [CITATION] does not explain why he did not just volunteer this\ninformation considering how important he apparently thought it\nwas.\n\n20200720-CA\n\n UT App 29 State v. Raheem\n\nnot revisited later at trial because Shannon did, in fact,\nacknowledge visiting the hookah lounge with friends in 2013 and\napproaching within eight feet of Raheem at the 2016 party.\n¶41 Raheem argues that Counsel’s investigation was deficient\nbecause he did not follow up when Raheem told him of Shannon’s\nbehavior toward him after the night of the assault. Raheem asserts\nthat if Counsel had done so, he “would have discovered that there\nwas in fact a witness who could corroborate [his] story that\nShannon had bragged about her sexual encounter with [him] to a\nthird party.” He argues that if Counsel had “investigated and\npresented [Girlfriend’s] testimony, he would have been able to\nfurther cast doubt on [Shannon’s] credibility and refute\nstatements she made about her post-incident conduct.”\n¶42 We first emphasize the scope of our inquiry. Without\nquestion, the best practice would have been for Counsel to follow\nup by asking whether anyone could corroborate Raheem’s\nassertions. But, as stated above, under a claim of ineffective\nassistance of counsel, “the ultimate question is always whether,\nconsidering all the circumstances, counsel’s acts or omissions\nwere objectively unreasonable.” [CITATION]. See [CITATION]\n(stating that the deficient performance element “requires showing\nthat counsel made errors so serious that counsel was not\nfunctioning as the ‘counsel’ guaranteed the defendant by the Sixth\nAmendment”); [CITATION] (“Even\nif an omission is inadvertent and not due to a purposeful strategy,\nrelief is not automatic.”) (quotation simplified). Under this\nstandard, we hold that Counsel’s omission was not objectively\nunreasonable under the circumstances of this case.\n¶43 As discussed above, Counsel’s investigation into\nShannon’s post-assault behavior produced photographic\nevidence both that Shannon returned to the hookah lounge a\nfew months after the assault and that she felt comfortable\nenough to approach within eight feet of Raheem at a party\nsome years later. Although Shannon acknowledged at trial\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nthat she did these things, thus obviating the need for Counsel to\nseek admission of the photographic evidence, Counsel\nnonetheless argued during closing argument that this\npost-assault conduct conflicted with her claim that she had\nbeen sexually assaulted that night. Additionally, Counsel\ncalled Raheem’s brother and friend to counter Shannon’s\ntestimony, as well as that of other State witnesses, regarding her\nbehavior at the hookah lounge immediately after she exited the\nstorage closet.\n¶44 Having uncovered the photographic evidence and the\ntwo defense witnesses, coupled with Raheem’s silence during the\nconversation as to Girlfriend’s ability to corroborate his account of\nhis post-assault interactions with Shannon, it was not\nunreasonable for Counsel to believe that he had\nsufficiently investigated Shannon’s post-assault conduct. Indeed,\nCounsel’s investigation was sufficient to prompt Raheem to\ndiscuss Shannon’s continued “friendly and flirtatious” behavior,\nas well as the hug after a conversation in which Shannon\napologized for “the drama.” And the follow-up question that\nRaheem faults Counsel for not asking only sought additional\ninformation that a person could reasonably be expected to\nvolunteer without further prompting. Thus, after Raheem\ndivulged the information to which Girlfriend would have\ntestified, it was not unreasonable for Counsel to presume that\nRaheem would also mention that a witness to such events existed,\nif one did. 11\n¶45 For these reasons, under the circumstances of this case, we\ncannot say that Counsel’s failure to ask the follow-up question\n\n11. Although we cannot be sure on this record whether Raheem\nwas the one to direct Counsel’s attention to his brother and friend\nas witnesses to Shannon’s conduct immediately after exiting the\nstorage closet, we note that if he was, it would be yet another\nreason that Counsel’s not asking a follow-up question regarding\nShannon’s alleged later conduct was not unreasonable.\n\n[CITATION] State v. Raheem\n\nabout other potential witnesses was objectively unreasonable.\nRaheem’s claim of ineffective assistance therefore fails. 12\nB. Interests of Fairness\n¶46 Alternatively, Raheem argues that in light of our recent\nreversal of co-defendant Salazar’s conviction on ineffective\nassistance grounds, see [CITATION], we should\nlikewise reverse his conviction and grant him a new trial “in the\ninterests of fairness.” 13 But because Raheem does not ground this\nclaim on any constitutional provision, statute, rule, or caselaw, we\nhave no basis for reversal and this argument necessarily fails.\n¶47 In the other appeal, Salazar argued, in relevant part, that\nhis trial counsel was ineffective for failing to introduce at trial\ncertain Voxer 14 messages Shannon sent Salazar following the\n\n\n12. Because we reject Raheem’s claim that Counsel was ineffective\nfor failing to further investigate, we need not address his\nargument that Counsel was also ineffective for failing to call\nGirlfriend to testify at trial. Because Counsel was unaware of\nGirlfriend’s existence at the time of trial, he could not have been\nexpected to call her to testify.\n13. Because we reversed Salazar’s conviction after Raheem\nsubmitted his principal brief, Raheem first raised this issue in his\nreply brief, and we subsequently authorized surreply briefing on\nthis question.\n14. “Voxer is an app that allows users to exchange voice, text,\nphoto, and video messages. Its primary service is to deliver voice\nlive—so it can be listened to immediately while also\nsimultaneously recording the message—so it can be listened to\nlater.” [CITATION]\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nassault. 15 See [CITATION]. At the preliminary hearing, apart\nfrom “a few messages” she received “from Salazar in the days\nimmediately after the incident,” Shannon “testified that she did\nnot ‘hang out with him after the assault’ and ‘never had any direct\ncontact with Mr. Salazar.’” [CITATION] (quotation simplified). At trial,\nShannon “stated that she did not recall having contact or\nsocializing with Salazar after the incident but that she ‘was told\nthat I reported something before to the cops, but I don’t\nremember.’” [CITATION]. She also stated that “it was ‘correct’ that ‘at\nthe preliminary hearing under oath she said that she would never\nhave had contact with Salazar after the fact.’” [CITATION] (quotation\nsimplified). Salazar’s trial counsel did not present the Voxer\nmessages at trial to undermine Shannon’s credibility.\n¶48 Salazar argued that his trial counsel was ineffective\nbecause the Voxer “messages would have showed that Shannon\nlied when she repeatedly and unequivocally testified at the\npreliminary hearing that she never again contacted Salazar.” [CITATION]\n.\n15. Salazar also argued that his trial counsel was ineffective for\nfailing to investigate the Voxer messages. See [CITATION]. We\ndeclined to address this issue, stating that even if the State was\ncorrect that we should presume that Salazar’s counsel\ninvestigated the Voxer messages, “it does not change our\nconclusion that [Salazar’s counsel] was ineffective for not using\nthem at trial.” [CITATION]. We also noted that based on the trial court’s\nstatement that evidence existed that Salazar’s counsel possessed\nthe messages at the time of trial but elected not to use them, “we\ndo not conclude that [Salazar’s counsel] failed to investigate the\nexistence of the messages, because he actually had the messages,\neven though it is suggested by Salazar that [his counsel] did not\nhave the technical expertise to access and review them.” [CITATION]. Our\nanalysis thus focused on counsel’s decision not to use the\nmessages at trial. See [CITATION].\n Here, conversely, Girlfriend’s affidavit stated that when she\ndid come forward, Raheem’s brother put her in contact with\nappellate counsel—thus indicating that Raheem had already been\nconvicted at that point.\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n¶ 35 (quotation simplified). We held that [CITATION]’s trial counsel\nperformed deficiently in not using the messages at trial because\n“with Shannon as the State’s lead and most critical witness, any\nreasonable counsel would have presented the Voxer messages to\nundermine her credibility.” [CITATION]. See [CITATION] (stating that it was\n“unreasonable for [CITATION]’s counsel not to use the Voxer\nmessages to undercut Shannon’s already problematic\ncredibility”). We further held that [CITATION] was prejudiced, stating\nthat based on “Shannon’s problematic testimony and the lack of\nnecessarily inculpatory physical evidence, the Voxer messages\nwould have affected the overall evidentiary picture, and the jury\nmay well have found Shannon less credible.” [CITATION] (quotation\nsimplified). See infra note 19. Accordingly, we reversed [CITATION]’s\nconviction for aggravated sexual assault on ineffective assistance\nof counsel grounds and remanded his case for a new trial. See\n[CITATION].\n\n[SEGMENT 12]\n¶49 Raheem argues, “[T]his Court should recognize that any\nchange in [CITATION]’s trial would have resulted in a different\noutcome for [him]. The two men were charged with the same\ncrime and had a single trial. If [CITATION] did not receive a fair\ntrial, [Raheem] was also impacted by that lack.” 16 But Raheem’s\nargument in briefing is limited to citing a handful of Utah cases\nreferencing “principles of fairness” in other contexts that provide\nno basis for reversal in this case.\n¶50 During oral argument, Raheem pointed to our Supreme\nCourt’s recent decision in [CITATION], in\n\n16. Raheem primarily argued that reversal was warranted under\nthe law of the case doctrine, contending that “[t]his Court’s\nreasoning in [CITATION] explicitly demonstrates that [Counsel] acted\ndeficiently when he failed to introduce evidence which undercut\nShannon’s credibility and that [he] was prejudiced by [Counsel’s]\ndeficiencies.” But Raheem conceded during oral argument that\nbecause “different evidence [is] involved” here than was at issue\nin that appeal, [CITATION] has more of a persuasive effect on the\ncurrent case “than strict law of the case.”\n\n20200720-CA\n\n UT App 29 State v. Raheem\n\nwhich the Court held, as a matter of first impression, that a mother\nwhose parental rights were terminated could participate in a\nremand the father had secured on appeal. See id. ¶ 34. In that case,\neach parent raised separate claims of error in the joint appeal, see\nid. ¶ 8, but only the father’s claims of error proved successful, see\nid. ¶ 27. Although the mother had not made the same winning\narguments, see id. ¶ 29, the Court held that “[t]he rights and\ninterests of the parents and the children are not only substantial\nbut intertwined” in the parental termination proceeding, and the\njuvenile court’s missteps that the father had identified on appeal\n“may bear significant consequences not just for the parents but for\ntheir children,” id. ¶ 33. Accordingly, the Court held “that the\nmother’s briefing decisions should not foreclose her from\nparticipating in the case on remand” and that “[b]oth parents’\nlegal rights should be on the table.” Id. ¶ 34.\n¶51 [CITATION]’s narrow holding is inapplicable to the current\ncase. As the Court’s analysis makes clear, the unique context of\nparental rights termination in which the primary focus is the best\ninterest of the child played a crucial role in that case. Here, no such\nthird-party interest is at stake. Additionally, it was not the error\nof the court that warranted reversal in [CITATION] but the ineffective\nassistance of [CITATION]’s trial counsel—and not Raheem’s. 17 For\n\n17. To be sure, if the trial court, the State, or some other actor had\nmade an error affecting the rights of both co-defendants and\nresulting in an unfair trial, Raheem may potentially have been\nentitled to raise that claim of error in his own appeal. In such a\nsituation, the law of the case doctrine may well apply to ensure\nthe same result in both appeals. See [CITATION], 969 P.2d 1053,\n1054 (Utah Ct. App. 1998) (holding that because the appellant’s\nco-defendant received reversal on the “identical facts and legal\nquestion” the appellant raised, the law of the case doctrine\napplied, likewise entitling the appellant to a reversal). But here, as\nRaheem acknowledged during oral argument, see supra note 16,\nalthough there are some similarities, the underlying facts and\nclaim of ineffective assistance he raises are distinct from the facts\nand claim of ineffective assistance that merited reversal in [CITATION].\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nthese reasons, [CITATION] does not mandate reversal of Raheem’s\nconviction.\n¶52 In sum, because Raheem’s fairness argument has no basis\nin law, it necessarily fails. The reversal of [CITATION]’s conviction in a\nprior appeal has no binding effect on Raheem’s case.\n III. Improper Statements and Hearsay\n¶53 Raheem argues that the trial court erred in denying his\nmotion for a new trial in which he claimed that improper\nstatements by the prosecutors and inadmissible hearsay\nstatements by the State’s witnesses deprived him of a fair trial. We\nfirst recount each of the challenged statements and then proceed\nto address the merits of Raheem’s argument.\nA. Additional Facts\n¶54 First, during jury selection, the two prosecutors in the case\nintroduced themselves to the potential jurors as members of a\n“special victims team” and a “special victims unit.” Shortly\nafterwards, during a sidebar conversation, the defense objected to\nthe prosecutors’ use of the word “victim” and asked the trial court\nto either “[c]raft some sort of limiting instruction, or grant . . . a\nmistrial.” The court told the jury that the prosecutors’ “use of the\nword victim is not proper” because “[i]t is inconsistent with the\npresumption of innocence” and instructed the jury “not to\nconsider the use of that word.”\n¶55 Second, during opening statements, one of the prosecutors\ntold the jury that Raheem ran the hookah lounge “and it had\nteenage girls, 18-years-old, who would work there without pay,\nbut would receive hookah or tobacco instead of being paid.” The\ndefense objected to this statement, arguing that the defense had\nno prior notice of this “other acts” evidence. See [CITATION]. The trial court then instructed the jury “to disregard\nreferences to any sort of issue about whether there were\nindividuals smoking underage in this establishment, or whether\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nthere were any sort of labor violations with respect to individuals\nworking in this establishment without pay.”\n¶56 Third, at the beginning of Coworker’s testimony, the State\nasked, “What’s your understanding of why you’re here to\ntestify?” Coworker responded, “I’m here to testify as a witness\nagainst two individuals that had raped [Shannon].” The defense\nobjected and moved for a mistrial, arguing the comment\nimpermissibly bolstered Shannon’s credibility and was\nprejudicial. The court asked whether Coworker’s expected\ntestimony regarding Shannon’s excited utterances after she exited\nthe storage closet would mitigate the prejudice. See [CITATION] R. 803(2)\n(exempting from the rule against hearsay “[a] statement relating\nto a startling event or condition, made while the declarant was\nunder the stress of excitement that it caused”). The defense\nrecognized that the testimony may “correct the mistake” but\nargued that the cumulative effect of the comment and the\nprosecutors’ prior statements that they were members of a\n“special victims team” warranted a mistrial. The court took the\nmotion for mistrial under advisement, but in the interim, it\ninstructed the jury to disregard the comment because “the\nquestion of whether or not rape occurred in this case is the\nultimate issue in the case that you have to decide as the jury” and\nCoworker’s “comment on it is not proper for you to consider.”\nThe court then asked whether the members of the jury understood\nthe instruction and whether they believed they could follow it.\nThe jurors indicated in the affirmative. The court then asked any\njurors who “doubt[] their ability to follow that instruction and\ndisregard” Coworker’s opinion on the matter to raise a hand.\nNone of the jurors raised their hand.\n¶57 Fourth, the detective who convinced Shannon to go to the\nhospital testified that he had been dispatched “for a possible\nrape.” The defense lodged an objection, which the court sustained\nand instructed the jury to disregard the statement “for the same\nreason that I gave you the instruction before.” Namely, “[i]t’s the\nultimate issue in the case about whether or not a rape occurred.\nThat’s for you to decide, not for this witness or any other specific\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nwitness to say.” The court again asked the jurors whether they\ncould “all follow that instruction to disregard [the detective’s]\nanswer.” All the jurors again indicated in the affirmative. A little\nlater, the detective testified that when he arrived at the hospital,\nthe examining nurse and a “victims advocate” were already there.\nThe defense did not object to the use of the word “victim” at this\ntime.\n¶58 Fifth, during cross-examination of Raheem’s friend, in the\ncontext of asking about who had subpoenaed him, the State\nasked, “But who [are] you testifying for?” The defense objected.\nThe court sustained the objection and told the jury, “The witness\nwas subpoenaed to testify. He’s not testifying for anyone or\nagainst anyone. He’s just providing his testimony. Does\neverybody understand that?” The jurors again responded in the\naffirmative.\n\n[SEGMENT 13]\n¶59 During a recess, the court heard further argument on the\nmistrial motion. 18 By that point, both Coworker and Friend had\ntestified as to Shannon’s excited utterance when she exited the\nstorage closet that she had just been raped. See [CITATION]. The\ndefense nonetheless argued that Coworker’s comment and the\ntestimony about Shannon’s excited utterances “are two different\nthings” because “[i]n the one case she’s offering it and asserting it\nas a fact, in the other she’s talking about things . . . that were told\nto her.” The defense also argued that the detective’s mention of a\n“victims advocate,” the State’s use of the word “victim” during\nintroductions, and Coworker’s “rape” comment all “cumulatively\nadd[] up to a mistrial.”\n¶60 In response, the State asserted that “no one has called\n[Shannon] a victim,” rather the prosecutors’ and the detective’s\nuse of the word “victim” was in reference to job titles and\ndescriptions. Indeed, the State pointed out that even Counsel at\n\n18. At this point, because Raheem’s friend had not yet been called\nto the stand, the objected-to interaction in which the State asked\nhim who he was testifying for was not discussed.\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\none point referenced a “victim advocate” during a\ncross-examination. Concerning Coworker’s statement, the State\nargued that it was not solicited and that any potential prejudice\nwas “cured” by admissible testimony of Shannon’s excited\nutterance when she exited the storage closet that she had just been\nraped and by the court’s curative instruction. Additionally, the\nState argued that the detective did not indicate that a rape had\noccurred because he said “possible rape.”\n¶61 The trial court denied the motion for mistrial, largely\nagreeing with the State’s arguments. The court stated that it held\noff on ruling on the motion when first lodged at the onset of\nCoworker’s testimony because it wanted “to see how the\ntestimony unfolded.” The court acknowledged that the State’s\nquestion that prompted Coworker’s objectionable comment “was\nprobably not the best question for the prosecution to ask of a lay\nwitness” and that the comment was “potentially inflammatory.”\nBut the court pointed out that the jury heard admissible evidence\nof Shannon’s excited utterance that she had been raped.\nAdditionally, the jury received a curative instruction, and the\ncourt “carefully observed the jurors” while giving the instruction\nand was convinced that they understood the instruction. It\ntherefore held that any prejudice from Coworker’s comment was\nmitigated. The court further held that the detective’s reference to\na “potential rape” was not prejudicial because it was no secret that\nthe case was “about an alleged rape.” And, in any event, the court\nstated that it “gave careful curative instructions that” it\n“believe[d] the jury understood.”\n¶62 Concerning the use of the word “victim,” the court first\nnoted that although the State was correct that no one had called\nShannon a victim and that the term was used in the context of\ndiscussing job titles, this was nonetheless “problematic when\nthey’re injected into a proceeding.” See [CITATION] (“[U]se of the term ‘victim’ usually will\nbe inappropriate when the defendant defends the case on grounds\nthat no crime was committed and, concomitantly, that there is no\nvictim in the case at all.”). Cf. [CITATION]\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\n449 P.3d 39 (“We . . . recognize the gravity of referring to witnesses\nas victims during a trial.”). But the court held that in light of the\ncurative instruction it gave during jury selection, which it\nbelieved the jury understood, the use of the word “victim” was\nnot prejudicial. See [CITATION] (stating that\ncurative instructions are “a tool that can sometimes, depending\nupon the context in which the statements were made, mitigate any\nprejudice caused by the use of the term ‘victim’”) (quotation\nsimplified). And although the defense did not object immediately\nafter the detective referenced a “victims advocate,” the court\nstated it believed that the jury understood the prior curative\ninstruction likewise applied to that statement.\n¶63 Raheem renewed this argument in his motion for a new\ntrial, in which, in addition to the improper statements he raised in\nhis motion for mistrial, he argued that a new trial was warranted\ndue to the State’s discussion of “other acts” evidence during\nopening statements and due to the State’s improper question to\nRaheem’s friend during cross-examination. The court denied the\nmotion. Concerning the prosecutors’ reference to a “special\nvictims team” and a “special victims unit” during jury selection\nand to other acts evidence during opening statements, the court\nexplained, “The court gave curative jury instructions for each of\nthese statements, and [it] found the jury was sophisticated,\nunderstood the court’s instructions, and indicated a willingness\nto abide by the instructions. Therefore, any error was cured at\ntrial.” Similarly, regarding the State’s improper question to\nRaheem’s friend, the court stated that it “gave a curative\ninstruction with regard to the State’s implication [the friend] was\ntestifying for a particular party, and any error with regard to him\nwas rectified” and “was not prejudicial.” Lastly, the court stated\nthat “with regard to references to ‘victim’ and ‘rape,’ throughout\nthe trial, there were very few and the court gave curative\ninstructions to the jury instructing it to disregard the references.\nThe jury understood the instructions and agreed to disregard the\nstatements.”\n\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nB. The Merits\n¶64 Raheem argues that “the cumulative effect of the improper\ntestimony should undermine the court’s confidence in the\noutcome” because “the curative instructions were not adequate to\nmitigate the cumulative prejudice of the many errors.”\nReferencing Shannon’s “credibility issues,” 19 he asserts that “the\njury was left with much it was instructed to disregard and little it\ncould legitimately rely on to convict.” He also contends that “the\ninadmissible evidence served to unjustifiably bolster the State’s\ncase and credibility of [Shannon’s] accusation.”\n¶65 “Because of the advantaged position of the trial judge to\ndetermine the impact of events occurring in the courtroom on the\ntotal proceedings, an appellate court will find an abuse of\ndiscretion only when the trial court is plainly wrong in that the\nincident so likely influenced the jury that the defendant cannot be\nsaid to have had a fair trial.” [CITATION] Here, we cannot say that the\ntrial court abused its discretion in denying the motion for a new\ntrial.\n¶66 As Raheem points out, in holding that the errors were not\nprejudicial, the court relied heavily on the curative instructions it\nissued following each objection to the improper statements. “We\nnormally presume that a jury will follow an instruction to\ndisregard inadmissible evidence inadvertently presented to it,\nunless there is an overwhelming probability that the jury will be\n\n19. In [CITATION], cert. denied,\n[CITATION], we held that “the State’s prospects for\na conviction primarily rested on [Shannon’s] testimony,” id. ¶ 58,\nand that her credibility was “problematic” due to “her inability to\nremember most of the specifics of the assault without the\nprosecutor’s direction and her changing story about the soda,” id.\n¶ 45. See id. ¶ 44 (detailing Shannon’s memory issues and\ninconsistent accounts regarding the allegedly spiked soda she\nsaid she consumed).\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nunable to follow the court’s instructions, and a strong likelihood\nthat the effect of the evidence would be devastating to the\ndefendant.” [CITATION] (quotation simplified). See [CITATION] (“Curative instructions are ordinarily presumed on\nappeal to be effective, absent a substantial and prejudicial\nunderlying error or irregularity.”) (quotation simplified), cert.\ndenied, [CITATION]. But see [CITATION] (“This is not to say that curative instructions are a ‘cure-all.’ Some\nerrors may be too prejudicial for curative instructions to mitigate\ntheir effect, and a new trial may be the only proper remedy.”).\n¶67 With the exception of the detective’s single mention of the\n“victims advocate,” the court “gave a forceful curative instruction\nat the time [each] error occurred.” See [CITATION]. The\ncourt not only gave the instruction, it explained why the\ninstruction was being given and asked the jurors to indicate\nwhether they understood the instruction and were able to abide\nby it. Concerning the “victims advocate” reference, the jury had\nalready received the relevant curative instruction only a few\nminutes earlier when the same detective stated “potential rape,”\nas well as when the State referenced a “special victims team”\nduring jury selection. There was also “nothing to indicate that the\njury was unable to follow the court’s instruction to disregard the\ninadmissible evidence that had been inadvertently presented to\nit.” See id. To the contrary, the court “found the jury was\nsophisticated, understood the court’s instructions, and indicated\na willingness to abide by the instructions.” See [CITATION] (acknowledging “the advantaged position of the trial\njudge to determine the impact of events occurring in the\ncourtroom on the total proceedings”) (quotation simplified).\n\n[SEGMENT 14]\n¶68 Furthermore, we are not convinced that the cumulative\neffect of the improper statements was so “substantial and\nprejudicial” as to undermine the effectiveness of the curative\ninstructions. [CITATION] (quotation simplified).\nAs the trial court noted, the potential prejudice of most of the\nstatements was significantly decreased by other factors. Most\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nnotably, the prejudice of Coworker’s improper statement was\nsignificantly decreased when she and two other witnesses\nprovided admissible testimony regarding Shannon’s allegations\nof rape immediately after she exited the storage closet.\nAdditionally, the prejudicial impact of the detective’s reference to\na “potential rape” is questionable, given the use of the qualifying\nword “potential” and the jury’s general understanding that it was\ntasked with determining whether Raheem and Salazar sexually\nassaulted Shannon in the storage closet. Such an understanding\nlikewise minimized the prejudicial impact of the State’s and the\ndetective’s references to “victim,” as they never directly called\nShannon a “victim” but rather were using the word when\nproviding titles and descriptions of their jobs.\n¶69 Additionally, the State’s improper comment during\nopening statement about the potential underage smoking and\nlabor violations at the hookah lounge was rather mild in\ncomparison to the graphic allegations the jury later heard. See\n[CITATION] (stating that\nthe victim’s improper statement that the “defendant was shot\nmight have stood out more prominently in other trials” but “in\nthe current case the highly graphic and disturbing nature of the\nevidence presented to the jury over the course of six days . . .\novershadowed” the improper statement), cert. denied, [CITATION]. Thus, even considered cumulatively and in light\nof issues with Shannon’s credibility, we cannot say that the\nprejudicial effect of the errors was so great as to rebut the\npresumption that the jury followed the trial court’s curative\ninstructions.\n¶70 For these reasons, the trial court did not abuse its discretion\nwhen it denied the motion for a new trial.\n\n CONCLUSION\n¶71 The State presented sufficient evidence at trial to prove that\nRaheem acted, at the very least, recklessly as to Shannon’s\n\n 20200720-CA\n\n UT App 29 State v. Raheem\n\nnonconsent. Under the circumstances of this case, Counsel was\nnot ineffective for not asking a follow-up question regarding\nwhether anyone could corroborate Raheem’s account of\nShannon’s post-assault behavior toward him. Lastly, the trial\ncourt did not abuse its discretion when it denied the motion for a\nnew trial. 20\n¶72 Affirmed.\n\n\n20. Raheem also argues that the cumulative effect of the three\nerrors he raises on appeal was prejudicial. “A reviewing court will\nreverse a jury verdict under the cumulative error doctrine only if\nthe cumulative effect of the several errors undermines confidence\nthat a fair trial was had.” [CITATION] (quotation simplified). Because there are no errors to\naccumulate here, this argument necessarily fails. See [CITATION] (stating that\nthe cumulative error “doctrine will not be applied when claims\nare found on appeal to not constitute error, or the errors are found\nto be so minor as to result in no harm”) (quotation simplified);\n[CITATION] (“Because\nwe conclude that there are no errors to accumulate here, the\ncumulative error doctrine is inapplicable in this case.”) (quotation\nsimplified).\n\n 20200720-CA\n\n UT App 29 \n2024 UT App 16\n\n THE UTAH COURT OF APPEALS\n JOSEPH EARL LAMB,\n Appellee,\n v.\n SONYA ELIZABETH LAMB,\n Appellant.\n Opinion\n No. 20210787-CA\n Filed February 8, 2024\n Third District Court, Salt Lake Department\n The Honorable Robert P. Faust\n No. 174904728\n Mary Deiss Brown, Attorney for Appellant\n Gregory G. Skordas, Gabriela Mena, and Allison R.\n Librett, Attorneys for Appellee\n JUDGE DAVID N. MORTENSEN authored this Opinion, in which\n JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.\nMORTENSEN, Judge:\n¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was\ndecided at a bench trial. [CITATION] As relevant here, Joseph was awarded\ncustody of their children, ownership of a family business, and half\nthe equity of the marital home. Sonya now challenges the court’s\ncustody determination and the award of the business. She also\nchallenges the manner in which the court determined the equity\nin the marital home. We affirm the district court’s rulings in all\naspects.\n\n\n[CITATION] Because the parties share a surname, we refer to them by their\ngiven names. [CITATION]\n\n BACKGROUND 2\n¶2 Joseph and Sonya married in 2007 and separated in July\n2017. We address separately each of the district court’s\ndeterminations with which Sonya takes issue.\n The Custody of the Children\n¶3 Joseph and Sonya have three children, all of whom\nwere minors when they divorced in August 2021. In\nNovember 2017, at a hearing for temporary orders, Sonya’s\ncounsel told the court that Sonya had been the children’s primary\ncaregiver “until recently.” Sonya also admitted that she was\narrested in July 2017 and was facing charges for possession and\nuse of drugs, but she asserted that she had “taken responsibility,”\nhad “stopped using drugs,” was “sober and more than capable of\ncaring for the children and continuing on as their primary\ncaregiver,” and had “been attending Narcotics Anonymous and\nAl-Anon meetings.” Sonya asserted that Joseph had a “serious\ndrug addiction problem.” Joseph claimed that Sonya had\nvacated the marital home shortly before her arrest, and he\nrevealed that he obtained a protective order against her. The court\nacknowledged the allegations both sides made against the\nother but noted that Joseph currently had the children in his care\nand was living in the marital home. The court then determined\nthat Joseph should maintain “custody of the children on a\ntemporary basis.”\n\n2. As addressed below, neither party’s briefs included sufficient\ncitations to the record. This shortcoming has necessitated us\ncombing the record to establish some semblance of a background,\nsomething we are not obligated to do. See [CITATION] (explaining the parties’ duty to cite\nthe record in appellate briefs), cert. denied, [CITATION]. Accordingly, our recitation of the facts is necessarily\nminimal as we limit it to what is essential to resolve the issues on\nappeal.\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\n¶4 Apparently, the children remained in the temporary\ncustody of Joseph until the parties’ divorce trial, where the court\nreceived the testimony of a “reunification therapist” (Family\nTherapist), who had been hired by the parties after the custody\nevaluator had been “unable to perform an evaluation due to the\nchildren spending less than minimum time” with Sonya.\n¶5 Based on the testimony of Family Therapist, which we\nrecount when relevant in our analysis below, the court found that\n“unification” between Sonya and the two older children was\n“lacking” because of acrimonious relationships. The court noted\nthat Family Therapist had testified that progress in reunification\ntherapy would “influence what possible custody” Sonya might\nhave in the future relative to the older children. The court\ndetermined that it was “in the best interest of the children that\nreunification therapy” continue to allow Sonya the opportunity\n“to reunify her relationship with the children.”\n¶6 Accordingly, the court found that it was in the children’s\nbest interest that Joseph be “awarded sole physical custody and\nfinal decision making authority,” with both parties being\nawarded joint legal custody. With regard to the youngest child,\nthe court awarded supervised parent-time to Sonya one night a\nweek. The court awarded Sonya no parent-time with the older\ntwo children. The court noted that supervised parent-time for\nSonya would “be flexible” and might “increase after the current\nreunification issues” and Sonya’s “medical issues” were\naddressed. The court also stated that Sonya’s “non-use of\ncannabis” needed to be verified because marijuana use was “a\ncontributing factor” that brought on her mental health episodes.\n The Business\n¶7 During their union, the parties were financially supported,\nat least in part, by a business that distributed supplies to gas\nstations. During the divorce proceedings, Joseph maintained that\nhe was in the process of purchasing the business from his father\nbut that he did not have the money to pay for it. Joseph explained\n\n [CITATION] Lamb v. [CITATION]\n\nthat he drew a salary for his work with the business. In contrast,\nSonya maintained that she and Joseph agreed to buy the business\nin 2010 and that they completed paying off the business in 2016.\nSonya claimed that she and Joseph signed a document “to take\nover the business” but that she did “not have the document.”\nSonya did produce a different document that explicitly stated the\nbusiness was being sold only to Joseph.\n\n[SEGMENT 15]\n¶8 The district court awarded the business to Joseph, along\nwith all its debts and obligations. In addition, the court,\napparently recognizing that the business was possibly still owned\nby Joseph’s father, ordered that any money Joseph borrowed\nagainst the marital home to purchase the business would “not be\nused to reduce the total equity in the home” so as to reduce\nSonya’s share of the home’s value. In making this award to\nJoseph, the court was clear that it was basing its decision “on the\ntestimony” provided by Joseph.\n The Marital Home\n¶9 Based on a Zillow estimate 3 provided by Sonya, the court\ndetermined the value of the marital home to be $998,659, but the\nequity in the home was reduced by mortgages and liens on the\nproperty. Joseph testified that three mortgages, totaling $402,000,\n\n\n3. Neither party produced an appraisal of the home or an\nappraisal witness at trial, leading the court to ask the parties,\n“Does anybody have any valuation [of the home] at all?” Sonya’s\ncounsel answered, “Well, we could do it [with] Zillow.” At this\npoint, while in court, Sonya’s counsel looked up the value and\nreported, “According to Zillow as of today, the estimated value is\n$998,659.” No objection was lodged at trial to the court receiving\nthis information. “Zillow is a commercial website that provides,\namong other things, an estimated market value for many\nresidential properties.” [CITATION]\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\nwere on the property. 4 And the home was additionally\nencumbered by eleven liens. Two of these liens, totaling $2,414,\nwere attributed to Sonya and Joseph. The remaining nine, totaling\n$256,521, were tax liens and civil judgments incurred by the\nprevious owner of the home. 5\n¶10 The court received evidence that when Joseph and Sonya\npurchased the home in November 2009, it was subject to some\nexisting debt. Joseph testified as follows:\n Counsel: “Was there anything particular about that\n purchase [of the home]?”\n Joseph: “We didn’t have the credit or the means to get into\n a home at the time, so my brother is a real estate agent\n and he’s good friends with [the previous owner] and\n said, ‘Hey, this house is available. If you like it, I can\n probably get you into it.’ And so we took him up on\n that and (inaudible) that we had to take on (inaudible).”\n Counsel: “So there were other debts on that house when\n you purchased it?”\n Joseph: “Yes. . . . . I didn’t know about all of them at the time,\n but yes.”\n Counsel: “What are those debts?”\n\n\n4. This number reflected the amount owing at the time of\nseparation. At the bench trial, Joseph testified that the amount was\ncurrently about $298,000.\n5. Joseph’s counsel provided a LexisNexis report as evidence of\nthe liens on the home. This report was admitted as evidence with\nno objection.\n\n 20210787-CA\n\n UT App 16 [CITATION]\n Joseph: “There’s a lot of tax liens from [the previous owner]\n throughout the years. There’s a couple of (inaudible)\n from Sonya and I, medical bills that weren’t paid. . . .”\n Counsel: “And have you paid off the tax liens? The liens on\n the house?”\n Joseph: “No.”\nThus, in a somewhat unusual arrangement, the parties appear to\nhave purchased the home subject to certain liabilities, even if they\ndid not know the precise extent of those liabilities. Presumably,\nthese liabilities would have been offset by a reduction in the\npurchase price, making the home more affordable.\n¶11 Adding the mortgages and liens together for an amount of\n$660,935, the court determined that equity in the home was\n$337,724. The court ordered Joseph to pay Sonya $168,862 as her\nshare of that equity.\n¶12 Sonya appeals.\n\n ISSUES AND STANDARDS OF REVIEW\n¶13 Sonya identifies multiple ways in which she believes the\ndistrict court erred. But “[f]or the sake of brevity,” we\n“consolidate these grounds” and “set out in the opinion only so\nmuch . . . as we deem necessary to a decision of the questions\ninvolved herein.” [CITATION]\n¶14 Sonya first contends that the district court abused its\ndiscretion in making custody and parent-time decisions because\nit lacked sufficient information to make those decisions. “We\nreview custody determinations deferentially, and so long as the\ndistrict court’s discretion is exercised within the confines of the\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\nlegal standards we have set, and the facts and reasons for the\ndecision are set forth fully in appropriate findings and\nconclusions, we will not disturb the resulting award.” [CITATION].\n¶15 Sonya next contends that the district court’s findings were\n“entirely inadequate to explain” its reasoning for awarding\nownership of the business to Joseph. “We review the legal\nsufficiency of factual findings—that is, whether the trial court’s\nfactual findings are sufficient to support its legal conclusions—\nunder a correction-of-error standard, according no particular\ndeference to the trial court.” [CITATION] (cleaned up).\n¶16 Lastly, Sonya argues that the district court’s “procedures\nand decisions regarding the division of equity in the marital home\nwere illogical and manifestly unjust.” “Determining and\nassigning values to marital property is a matter for the trial court,\nand an appellate court will not disturb those determinations\nabsent a showing of clear abuse of discretion.” [CITATION] (cleaned up), cert. denied, [CITATION].\n\n ANALYSIS\n I. A Note on Briefing\n¶17 Sonya’s briefing is plagued by significant deficiencies and\ndoes not comply with the Utah Rules of Appellate Procedure for\nappropriate briefing. First, excluding the cases cited for the\nstandards of review, Sonya cites only a single case in her opening\nbrief, and she does so in a perfunctory fashion—making only a\nshallow attempt to explain its relevance to the issues. Sonya\ncontinues this trend in her reply brief, where she cites no cases at\nall. In this regard, she falls far short of appellate expectations. “A\nparty may not simply point toward a pile of sand and expect the\ncourt to build a castle. In both district and appellate courts, the\ndevelopment of an argument is a party’s responsibility, not a\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\njudicial duty.” [CITATION];\nsee also Utah R. App. P. 24(a)(8) (“The argument must explain,\nwith reasoned analysis supported by citations to legal authority\nand the record, why the party should prevail on appeal.”); id. R.\n24(b)(3).\n¶18 Second, in her statement of the case, Sonya fails to include\na single citation to the record. This is in contravention of our\nclearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of\nthe case must include, with citations to the record: (A) the facts of\nthe case, to the extent necessary to understand the issues\npresented for review; (B) the procedural history of the case, to the\nextent necessary to understand the issues presented for review;\nand (C) the disposition in the court or agency whose judgment or\norder is under review.” (emphasis added)). We note that Sonya\nsomewhat more adequately cites the record in the argument\nsection of her brief, but that is not what the Utah Rules of\nAppellate Procedure require, and by ignoring the rules to suit her\nbriefing preferences, she does little to bolster judicial efficiency. 6\n¶19 We point out these deficiencies not to ridicule, disparage,\nor shame counsel, but to provide warning that future briefing of\nthis nature will likely be deemed inadequate and that any\narguments on the merits may not be substantively considered by\nthis court. This court receives hundreds of briefs each year. They\nvary in quality and in their adherence to the rules. We recognize\nthat members of the bar have a lot on their plates and occasionally\nmiss a typo or overlook a citation. But wholesale disregard of\nbriefing rules is quite beyond the pale and can have unwelcome\n\n6. Nor did Joseph’s counsel provide a single citation to the record\nin his brief. This shortcoming is most unhelpful. While an appellee\nis not required to file a brief, see, e.g., [CITATION], we observe that if\na brief is filed, it would behoove counsel to provide record\ncitations. After all, and at the risk of stating the obvious, record\ncitations are required because in their absence it’s difficult, and at\ntimes impossible, to figure out what the parties are referencing.\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\n[SEGMENT 16]\n\nconsequences for attorneys (and their clients) who choose this\nrisky path. See [CITATION] (“We . . . retain discretion to not address an\nargument that is inadequately briefed.” (cleaned up)); accord [CITATION]. And we hasten to point out that\nthe risk of ignoring briefing requirements should come as no\nsurprise to any attorney in Utah owing to our multiple references\nto the issue over the years. See [CITATION] (stating that the merits of a dispute need not be\nreached if an appellant “has not supported the facts set forth in [a]\nbrief with citations to the record” as required by rule 24(a)(6) of\nthe Utah Rules of Appellate Procedure); [CITATION] (“We have routinely refused to\nconsider arguments which do not include a statement of the facts\nproperly supported by citations to the record.”); [CITATION] (“If a party\nfails to make a concise statement of the facts and citation of the\npages in the record where those facts are supported, the court will\nassume the correctness of the judgment below.”). That we have\nexercised our discretion to address the merits of the issues on\nappeal here should not be taken as an imprimatur sanctioning\ninadequate briefing but as a conduit to raise awareness of the risk\nof ignoring the rules.\n¶20 We take this occasion to recall the advice offered by our\nsupreme court several decades ago:\n If the questions involved in a case are of sufficient\n importance to justify asking this court to decide\n them, they are worthy of the careful consideration\n of counsel presenting them. It is the duty of\n attorneys practicing in this court to present to the\n court the authorities supporting their views and to\n assist the court in reaching a correct conclusion.\n[CITATION] (cleaned up). With\nthat, we remind counsel of their responsibility to assist the\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\njudiciary in advancing jurisprudence through diligent advocacy,\nadherence to our rules, and competent representation.\n II. Custody and Parent-Time\nA. Disclosure\n¶21 Sonya argues that the district court erred in admitting\nFamily Therapist’s testimony when Joseph had not timely\ndisclosed him as an expert witness pursuant to rule 26 of the Utah\nRules of Civil Procedure, which requires disclosure “within 14\ndays after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i).\nSonya’s briefing on this point leaves much to be desired. She\nentirely ignores what happened at trial, instead substituting her\nown retrospective take on what she believes should have\nhappened without attempting to explain why her timeliness\nargument should now be considered. Providing some persuasive\ncaselaw—which may or may not exist—would have gone far to\nsupport her argument. But like the rest of her briefing, this part is\ninadequate.\n¶22 A review of the record shows that Sonya did not object to\nFamily Therapist’s testimony on the grounds of untimely\ndisclosure. Instead, Sonya argued that Family Therapist had “far\nexceeded any kind of mandate,” that he had not signed\nconfidentiality waivers, and that allowing his testimony created\npatient privacy and ethical violations. In her objection at trial, rule\n26 was mentioned only in passing and not in a way that would\nsuggest she was objecting on timeliness grounds. It certainly\nwould not have been clear to opposing counsel that a rule 26\ntimeliness issue was being raised such that he would have known\nto argue a harmlessness or good-cause defense for the failure to\ndisclose, which would have been an easy argument to make given\nthat both Joseph and Sonya had jointly retained Family Therapist\nand Sonya knew about Family Therapist several years before trial.\nAnd it would not have been clear to the district court that it was\nbeing asked to rule on a timeliness-based objection. For these\nreasons, Sonya did not preserve any such objection for appellate\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\nreview. See [CITATION] (“It is\nwell established that we will not address the merits of an\nunpreserved issue absent a showing that an exception to the\npreservation rule applies.”).\nB. Hearsay\n¶23 Sonya additionally argues that Family Therapist’s\ntestimony, insofar as he testified as a fact witness, “was\ninadmissible hearsay and based entirely on his conversations with\nthe parties and their children as their reunification therapist.”\nSonya’s hearsay argument is difficult to follow and poorly\nbriefed. Instead of analysis in support of her hearsay argument,\nshe provides scant and unsupported assertions.\n¶24 Sonya objected below to Family Therapist’s testimony on\nthe grounds that it was hearsay. But the court ruled that it was not\nhearsay, concluding that Family Therapist’s testimony was not\noffered “for the truth of the matter asserted.” Rather, the court\nruled that the “focus of [the] questioning” was, first, to allow the\ncourt “to find out how [the children were] doing, if they’re\ncapable of going forward” and, second, to identify the present\n“obstacles” to “structuring visitation with [Sonya].” On appeal,\nSonya makes no attempt to engage with the court’s reasoning,\ninstead limiting her analysis to a blanket assertion that “it [was]\nevident” Family Therapist was “allowed to testify as an expert,\noffering hearsay, opinions and recommendations in [a] manner\nthat simply is not permitted by the Rules of Civil Procedure.”\nSuch superficial and undeveloped argument is simply not\npersuasive, most especially because it does not address the\nalleged error in the court’s reasoning. It is well settled that\nappellants who fail to “address the district court’s reasoning” also\nfail to carry their “burden of persuasion on appeal.” See [CITATION]; see also\n[CITATION].\n\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\nC. Custody Factors\n¶25 Sonya next argues that the court did not address the\ncustody factors outlined in section 30-3-10 of the Utah Code,\nmaking its custody findings insufficient. More specifically, Sonya\nargues that the court’s factual findings were deficient due to the\ncourt’s reliance on the testimony of Family Therapist in making\nthose findings.\n¶26 Section 30-3-10 states that in “determining any form of\ncustody and parent-time . . . , the court shall consider the best\ninterest of the child and may consider . . . other factors the court\nfinds relevant,” including factors for each parent articulated in the\ncode. Utah Code § 30-3-10(2) (emphasis added). These factors a\ncourt may consider are “not on equal footing.” [CITATION]. Instead, “it is\nwithin the trial court’s discretion to determine, based on the facts\nbefore it and within the confines set by the appellate courts, where\na particular factor falls within the spectrum of relative importance\nand to accord each factor its appropriate weight.” Id. (emphasis\nadded). “And where significant evidence concerning a particular\nfactor is presented to the district court, findings that omit all\ndiscussion of that evidence must be deemed inadequate.”\n[CITATION]. Thus, to\n“ensure that the trial court’s custody determination, discretionary\nas it is, is rationally based, it is essential that the court set forth in\nits findings of fact not only that it finds one parent to be the better\nperson to care for the child, but also the basic facts which show\nwhy that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).\n¶27 Here, the factors about which the court received significant\nevidence concerned Sonya’s ability to function as a parent, which\nthe court received as testimony from Family Therapist. As we\nhave explained above, Sonya’s challenges to the admissibility of\nFamily Therapist’s testimony fail, and we accordingly conclude\nthat the district court acted well within its discretion in relying on\nhis testimony.\n\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\n¶28 Regarding Sonya’s ability to parent the two older children,\nFamily Therapist testified that they were “very angry” with Sonya\nand “announced that they would never see or talk to her again.”\nTheir anger was due to their religious sensibilities and Sonya’s\nannouncement that she was pregnant by a man other than their\nfather during the pendency of the divorce.\n¶29 With regard to Sonya’s parenting, Family Therapist stated\nthat the youngest child was very frightened after “his last visit\nwith [Sonya] when she was struggling psychiatrically.”\nMoreover, Family Therapist also testified the youngest child was\nbeginning to see himself as Sonya’s “partner,” resulting in the\nchild “becoming parentified.” 7\n¶30 Family Therapist further indicated that while he was\nunaware of Sonya’s “current condition or functioning,” Sonya\nhad been “hospitalized and diagnosed with some issues.” He\nasserted that “safety” needed to be addressed, meaning that\nSonya required a psychiatric evaluation to demonstrate that her\n“situation” was “under control.” He also indicated that Sonya\nneeded to work on “being forthright with medications.” Sonya,\nby her own admission, had “suffered an isolated manic episode”\nrelated to bipolar disorder and “called the police for assistance”\nbecause she was suffering from “visual and auditory\nhallucinations.”\n\n[SEGMENT 17]\n¶31 Sonya’s briefing on this point misses the mark because it\nentirely relies on the assumption that Family Therapist’s\ntestimony was inadmissible, an assumption we conclude is\n\n7. “Parentification is often referred to as growing up too fast.\nTypically, it occurs when a child takes on parental responsibility\nfor their siblings or even their parents, taking care of a sibling or\nparent physically, mentally, or emotionally. This can damage a\nchild’s mental well-being and lead to long-term mental health\nconditions such as depression and anxiety.” Amber Felton, What\nIs Parentification, Web MD, https://www.webmd.com/parenting\n/what-is-parentification [https://perma.cc/N6TT-Y7QN].\n\n20210787-CA\n [CITATION]\n\nwithout foundation. See supra ¶¶ 21–24. She does not explain why,\nin light of Family Therapist’s admissible testimony, the court’s\nconsideration of the statutory custody factors was insufficient.\nSonya’s briefing makes no attempt to explain why the court is not\nallowed to rely on the evidence it receives when making custody\ndecisions.\n¶32 Moreover, Sonya does not identify any “significant\nevidence,” see [CITATION], as to the other\nfactors in section 30-3-10 that the court received but left\nunaddressed. Instead, her briefing advances an argument that is\nentirely conclusory and unsupported by record citation or legal\nauthority:\n Although § 30-3-10 gives broad discretion to the\n court as to the relevance and appropriate weight to\n give each factor, the district court in this case simply\n did not have any information that would allow it to\n make findings as to most of the statutory factors. For\n instance, the district court did not know who the\n primary caretaker of the children during the\n marriage was. The district court did not know\n anything about the marriage. The district court\n would not permit any testimony relevant to\n Joseph’s moral character or his history of drug\n abuse and sexual proclivities. The Court would not\n allow any testimony as to Joseph’s inability and\n unwillingness to co-parent with Sonya. At the end\n of the day, the Court simply sidestepped its\n responsibility as an independent factfinder and\n deferred to [Family Therapist].\nThis might be a good argument if Sonya had supported it with\ncitations to the record and to legal authority. As this argument\nstands before us, we are unable to verify what it asserts. But we\nsuspect that Sonya might be indulging in hyperbole here. Indeed,\nSonya’s assertion that “the district court did not know anything\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\nabout the marriage” is patently false. Our review of the record\nindicates that the court, in fact, knew quite a bit about the\nmarriage, such as its financial situation, issues related to the\nchildren, and the problems that led to its demise, to name just a\nfew topics within its familiarity. And with regard to Joseph’s\nalleged use of illegal drugs, we found only one instance\n(subsequently echoed by Sonya’s attorney) in the record where\nSonya asserted before the district court that Joseph had a “cocaine\nhabit.” But the district court was free to “disregard such testimony\nif it [found] the evidence self-serving and not credible,” since the\nfactfinder “is in the best position to judge the credibility of\nwitnesses.” See [CITATION]\n(cleaned up). An isolated allegation made in passing certainly\ndoes not amount to “significant evidence,” see [CITATION]\nespecially given the district court’s role as the\nfactfinder to judge the credibility of witnesses, see [CITATION] And as to the other statutory\ncustody factors that Sonya asserts the court left unaddressed, she\nhas not pointed us to any significant evidence that the court\nreceived with respect to those factors.\n¶33 Thus, unlike the situation in [CITATION], where we concluded\n“that the district court exceeded its discretion by failing to include\nin its findings any discussion of the evidence relating to the abuse\nallegations against [the mother], her alleged neglect of [the child,]\nand her moral character, as well as the effect that evidence had on\nits best-interest analysis,” see [CITATION], here there\nsimply wasn’t significant evidence presented regarding section\n30-3-10’s other custody factors. This lack of evidence—insofar as\nthere was a lack—was not the court’s fault; it was Sonya’s fault\nfor not presenting it. After all, a court cannot be faulted for failing\nto consider evidence that was not presented to it. In contrast,\ngiven the substantial evidence the court did receive about the\nserious mental health issues Sonya faced, we conclude that the\ndistrict court did not abuse its discretion in its consideration of the\nstatutory factors when determining that awarding physical\ncustody to Joseph was in the best interest of the children.\n\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\n¶34 In sum, Sonya has failed to show that the district court\nabused its discretion in accepting and relying on the testimony of\nFamily Therapist in making custody determinations or that the\ndistrict court did not properly address the statutory factors in\ndetermining custody of the children.\n III. Ownership of the Business\n¶35 Both parties agree that the district court concluded that the\nbusiness was not a joint marital asset. The district court awarded\nthe business to Joseph “[b]ased on [Joseph’s] testimony.” Along\nwith awarding the business to Joseph, the court stated that Joseph\nwas “responsible for payment of the purchase price of the\nbusiness.”\n¶36 Sonya’s briefing on this point is challenging because it\nconsists largely of recounting financial matters pertaining to the\nmarriage but unrelated to the ownership of the business. She then\nasserts, with no discernible effort to explain why, that the\n“findings/conclusions were entirely inadequate to explain the\nCourt’s reasoning for giving ownership” of the business to\nJoseph. Her argument is difficult to follow, but its essence, insofar\nas we can tell, appears to be that the court erred in believing\nJoseph’s testimony over hers.\n¶37 We disagree with Sonya that the court erred in crediting\nJoseph’s testimony regarding the ownership of the business over\nSonya’s. Again, the court stated in its factual findings that its\naward of the business to Joseph was “[b]ased on [his] testimony.”\nIn making this credibility determination, the court acted well\nwithin its discretion. “[W]here there exists evidence sufficient to\nsupport a court’s rulings regarding a divorcing couple’s finances,\nthat ruling will be upheld on appeal, even if evidence was\npresented that might have cut the other way.” [CITATION], ¶ 27. This is because “the fact-finder is in the\nbest position to judge the credibility of witnesses and is free to\ndisbelieve their testimony. Even where testimony is\nuncontroverted, a trial court is free to disregard such testimony if\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\nit finds the evidence self-serving and not credible.” [CITATION]; see also [CITATION] (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).\n¶38 Here, the district court was in the best position to judge the\ncredibility of the parties. It clearly found Joseph’s testimony\nregarding the ownership of the business to be more credible.\nSonya has provided no reasoned argument—apart from her\nassertion that she disagrees with it—as to why the district court’s\nconclusion that the business was not marital property was\nerroneous. Accordingly, Sonya has failed to meet her “burden on\nappeal to show that no reasonable person would take the view\nadopted” by the district court, and we therefore conclude that the\ndistrict court did not err in awarding the business, along with its\nliabilities, to Joseph. See [CITATION].\n IV. Equity in the Marital Home\n¶39 Sonya’s final claim is that the district court abused its\ndiscretion in dividing equity in the marital home. “In divorce\n\n8. Sonya also argues that the district court violated her\nconstitutional due process rights by its “ongoing interference”\nwith her counsel’s presentation of her case. Quite frankly, apart\nfrom a litany of complaints about the court requiring counsel to\nkeep her questioning relevant, the contours of her argument on\nappeal are difficult to discern, and she fails to cite a single case in\nsupport of the argument. Accordingly, we decline to consider her\ndue process argument because it is inadequately briefed. See [CITATION] (“The argument must explain, with reasoned\nanalysis supported by citations to legal authority and the record,\nwhy the party should prevail on appeal.”); see also [CITATION] (“The briefing on this claim . . . is inadequate.\n[The appellant’s] briefing on this issue fails to cite any authority\nand makes no attempt to connect the law to the facts of this case.”).\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\n[SEGMENT 18]\nactions, a district court is permitted considerable discretion in\nadjusting the financial and property interests of the parties, and\nits actions are entitled to a presumption of validity.” [CITATION]. Thus, in\nsuch proceedings,\n we will reverse only if (1) there was a\n misunderstanding or misapplication of the law\n resulting in substantial and prejudicial error; (2) the\n factual findings upon which the award was based\n are clearly erroneous; or (3) the party challenging\n the award shows that such a serious inequity has\n resulted as to manifest a clear abuse of discretion.\n Because we can properly find abuse only if no\n reasonable person would take the view adopted by\n the trial court, appellants have a heavy burden to\n show that an alleged error falls into any of these\n three categories.\n[CITATION].\n¶40 Sonya’s claim focuses on three aspects of the court’s\nvaluation of the home: (1) the mortgage amount, (2) the use of the\nZillow estimate, and (3) the amount of the liens on the home. We\naddress each in turn.\n¶41 The Mortgage Amount. Sonya complains that the district\ncourt, based on Joseph’s testimony, should have used $298,000 as\nthe amount owing on the mortgages rather than $402,000, an\nadjustment that would have benefitted her by increasing the\nequity she would have received. “Generally, the marital estate is\nvalued at the time of the divorce decree or trial. However, in the\nexercise of its equitable powers, a trial court has broad discretion\nto use a different date, such as the date of separation, when\ncircumstances warrant. If the trial court uses a date other than the\ndate of the divorce decree, it must support its decision with\nsufficiently detailed findings of fact explaining its deviation from\nthe general rule.” [CITATION]\n\n 20210787-CA\n\n UT App 16 [CITATION]\n\nP.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In\nresponse to Sonya’s motion for amended findings, the court\nexplained, “[Joseph’s] statement of the mortgage balance of\n$298,000 was referring to the total amount of all three (3)\nmortgages. The Court also took that into evidence taking into\naccount that it was [Joseph’s] best estimate according to what his\nmonthly mortgage payments are and how much was deducted\nfrom the principal each month.” We understand this to mean that\nthe court took into consideration that it was through Joseph’s\nextraordinary post-separation payment efforts that the mortgage\namount had been reduced. Moreover, Sonya concedes in her reply\nbrief that it was within the district court’s discretion to use the\nearlier mortgage total. Accordingly, we see no abuse of discretion\nin the court’s use of the date of the separation to determine the\namount of the mortgages.\n¶42 The Zillow Estimate. Sonya next complains that the home\nshould have been valued at about $260,000 more than was\nindicated by the Zillow estimate the court used. The glaring\nproblem with this aspect of Sonya’s complaint is that it was her\ncounsel’s idea to use the Zillow estimate. In open court, her\ncounsel looked up the estimate and announced it to the court. And\nthe court proceeded to base its calculations on the very data\nSonya’s counsel supplied. We simply will not countenance\nSonya’s assertion that the district court erred in proceeding to use\nthe estimate that Sonya herself, through counsel, provided. Sonya\ninvited any error in this regard. See [CITATION] (“Where a party makes an affirmative\nrepresentation encouraging the court to proceed without further\nconsideration of an issue, an appellate court does not consider the\nparty’s objection to that action on appeal.” (cleaned up)). In her\nbriefing on appeal, Sonya points to nothing in the record that\nwould have allowed the court to value the home using anything\nother than the Zillow estimate. Sonya does not challenge that the\ncourt acted on the only information it had and that Sonya herself\nprovided. Accordingly, “given the absence of any expert financial\ntestimony, . . . the paucity of assistance the parties offered the\ncourt,” and the representations made by Sonya’s counsel\n\n 20210787-CA\n\n UT App 16 Lamb v. Lamb\n\nregarding the marital home’s value, we conclude that “the court\nin this instance made findings within its discretion and supported\nby the evidence it was given.” [CITATION], ¶ 55.\n¶43 The Liens. Sonya argues that the district court abused its\ndiscretion in counting third-party liens against the equity in the\nhome. Given the evidence the court received, we see no error on\nthe part of the court in this regard. Indeed, there was evidence to\nsupport the court’s determination that the third-party liens\nshould be included in the calculation of the home’s equity. Joseph\ntestified that when he and Sonya purchased the home, they did so\nknowing that they were assuming responsibility for some of the\nprevious owner’s debts. This is an admittedly odd arrangement,\nbut Joseph testified that they were willing to accept it because they\nwere not in a financial position to purchase the home otherwise.\nSonya offered no testimony or other evidence to contradict\nJoseph’s assertion, and she still points to nothing presented at trial\nthat contradicted this evidence. Accordingly, we conclude that the\nfactual findings that included the liability associated with the\nthird-party liens were not clearly erroneous and that the court did\nnot abuse its discretion in calculating the home’s equity.\n\n CONCLUSION\n¶44 Sonya has not demonstrated that the district court abused\nits discretion in its custody determination, in awarding the\nbusiness to Joseph, or in its division of equity in the marital home.\nAffirmed.\n\n\n 20210787-CA\n\n UT App 16 \n2024 UT App 3\n\n THE UTAH COURT OF APPEALS\n BRIAN K. LEWIS,\n Appellant,\n v.\n U.S. BANK TRUST, NA, AS TRUSTEE FOR LSF9 MASTER\n PARTICIPATION TRUST,\n Appellee.\n Opinion\n No. 20220434-CA\n Filed January 5, 2024\n Fourth District Court, Nephi Department\n The Honorable Anthony L. Howell\n No. 180600022\n Stephanie L. O’Brien, Attorney for Appellant\n Heidi G. Goebel, Keith S. Anderson, and Spencer\n MacDonald, Attorneys for Appellee\n JUDGE AMY J. OLIVER authored this Opinion, in which\n JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY\n concurred.\nOLIVER, Judge:\n¶1 After foreclosure was initiated against property he\npurchased in Mona, Utah (the Property), Brian K. Lewis sued the\nforeclosing parties, spurring a host of litigation. Lewis appeals the\ndistrict court’s grant of summary judgment on the quiet title and\nunjust enrichment claims he made against U.S. Bank Trust, NA\n(U.S. Bank). Lewis also appeals the court’s grant of summary\njudgment to U.S. Bank on its claim for judicial foreclosure on the\nProperty and the court’s denial of his rule 60(b) motion for relief\nfrom this portion of the judgment. For the reasons laid out below,\nwe affirm the district court in all respects. [CITATION]\n\n BACKGROUND\n¶2 In 2008, the prior owner (Prior Owner) of the Property\nfinanced his purchase of the Property by executing a\npromissory note and a deed of trust securing the note. The loan\nwas eventually sold to LSF9 Master Participation Trust (LSF9),\nand after several assignments, the deed was assigned to U.S.\nBank, as trustee on behalf of LSF9. Prior Owner defaulted on the\nloan and filed for bankruptcy. Prior Owner’s bankruptcy petition\nwas discharged, and along with it, his personal obligation on the\nloan. 1\n 0F\n\n\n¶3 In April 2010, notice of default on the loan was recorded,\nnoting there had been no payment on the obligation since Prior\nOwner’s default. This notice was later “rescind[ed], cancel[led]\nand withdraw[n]” on May 1, 2014. But a new notice of default was\nentered the same day. A few months later, in August 2014, Prior\nOwner sold the Property to Lewis. Lewis claims he “has\nmaintained” and “put substantial improvements into the\nProperty” since 2014.\n The First Lawsuit\n¶4 In July 2016, Lewis was informed that a nonjudicial\nforeclosure sale of the Property would occur in September.\nLewis filed a complaint against the foreclosing parties in state\ndistrict court, seeking to quiet title and obtain a judgment\npreventing future foreclosure. Lewis argued the foreclosing\n1. Pursuant to rule 201 of the Utah Rules of Evidence and U.S.\nBank’s request, this court takes judicial notice of Prior Owner’s\nbankruptcy proceedings in the United States Bankruptcy Court\nfor the District of Utah, case number 10-23076. See [CITATION].\n\n[SEGMENT 19]\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nparties had failed to foreclose within the statutory period and\nwere no longer entitled to do so. This suit (the First Lawsuit) was\nremoved to the United States District Court for the District of\nUtah. See [CITATION]. The federal district court\ngranted summary judgment in favor of the foreclosing parties,\nconcluding the statute of limitations period began on May 1, 2014,\nand had not run by the time foreclosure proceedings began in\nSeptember 2016. Id. at *1. Lewis appealed this decision to the\nUnited States Court of Appeals for the Tenth Circuit, but the\nappeal was dismissed for lack of prosecution. See [CITATION].\n The Current Lawsuit\n¶5 Days after Lewis’s Tenth Circuit appeal was dismissed, he\nfiled a new complaint (the Current Lawsuit) in state court, this\ntime against U.S. Bank. Lewis again sought to quiet title in the\nProperty and to enjoin U.S. Bank from “asserting any estate, right,\ntitle or interest” in the Property. U.S. Bank removed the action to\nfederal district court. Lewis opposed removal and filed a second\namended complaint in state court. The state court concluded it did\nnot have jurisdiction over the amended complaint as the case had\nbeen removed to federal court, but based on lack of diversity\njurisdiction, the federal court eventually remanded the case to the\nstate court.\n¶6 U.S. Bank then filed a motion to dismiss Lewis’s complaint\nunder rule 12(b)(6) of the Utah Rules of Civil Procedure, arguing\nthe suit was barred by res judicata and failed to state a claim upon\nwhich relief could be granted. Thereafter, the court permitted\nLewis to amend his complaint. Lewis’s third amended complaint\nraised a quiet title claim labeled “Quiet Title—Laches” wherein he\nalleged U.S. Bank or its predecessors in interest had\n“unreasonably delayed enforcing” their rights against the\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nProperty. 2 The complaint also alleged U.S. Bank had been unjustly\nF\n\n\nenriched by Lewis’s maintenance and improvement of the\nProperty.\n¶7 U.S. Bank then filed another motion to dismiss, arguing\nagain that Lewis’s claims were barred by res judicata and were\notherwise meritless. The court agreed that Lewis’s claims for quiet\ntitle and unjust enrichment were barred by res judicata and\ndismissed them because they “could and should have been\nbrought in the earlier lawsuit.” Lewis appealed the dismissal of\nhis claims to this court. We held that “[b]ecause the district court\ncould not decide this issue without considering materials outside\nthe pleadings, the motion to dismiss should have been converted\nto one for summary judgment” and we remanded the case to the\ndistrict court. [CITATION]. Thereafter, U.S. Bank answered Lewis’s third\namended complaint, again arguing his claims were barred by res\njudicata.\n¶8 While the Current Lawsuit was pending, U.S. Bank had\ninitiated a judicial foreclosure of the Property. On U.S. Bank’s\nmotion, the court consolidated the judicial foreclosure action into\nthe Current Lawsuit. On April 30, 2020, the May 1, 2014, notice of\ndefault was cancelled.\n¶9 U.S. Bank then simultaneously filed two motions for\nsummary judgment. Though the motions were both captioned\n“Motion for Summary Judgment and Memorandum in Support,”\nthey addressed different issues—one motion concerned Lewis’s\nclaims for quiet title (the Quiet Title Motion), while the other\nfocused on U.S. Bank’s foreclosure claim (the Foreclosure\n\n2. Lewis raised a second quiet title claim, alleging the deed of trust\nwas not properly transferred to U.S. Bank, rendering U.S. Bank\nunable to foreclose on the Property. But this claim was later\ndismissed by stipulation of the parties.\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nMotion). The Foreclosure Motion stated on its first page that “U.S.\nBank Trust has simultaneously filed a separate motion for\nsummary judgment as to Mr. Lewis’s claims against U.S. Bank\nTrust and which is adopted in full” and later likewise noted the\n“simultaneously-filed Motion for Summary Judgment that\naddresses Mr. Lewis’s quiet title and unjust enrichment claims.”\nThe Quiet Title Motion argued Lewis’s quiet title and unjust\nenrichment claims were barred by res judicata. The day after U.S.\nBank filed its two motions for summary judgment, it filed a Notice\nof Errata, noting that it had “[i]nadvertently” included a\nwatermark on the Quiet Title Motion. U.S. Bank attached a\ncorrected motion.\n¶10 Lewis’s counsel (Counsel) “mistakenly believed that [the\nQuiet Title Motion] was the only pending motion for\nsummary judgment.” Thus, Lewis filed a single Opposition\nto Defendants’ Motion for Summary Judgment addressing\nonly the Quiet Title Motion. Though Lewis did not directly\noppose the Foreclosure Motion, he did briefly address judicial\nforeclosure in his opposition to the Quiet Title Motion, arguing\nU.S. Bank did not have a right to foreclose because it could not\ndemonstrate a “chain of title” establishing assignment of the deed\nof trust.\n¶11 After a hearing, the court granted both of U.S. Bank’s\nmotions for summary judgment. The court concluded Lewis’s\nquiet title and unjust enrichment claims were barred as a matter\nof law by claim preclusion. And the court granted summary\njudgment to U.S. Bank on its judicial foreclosure claim, finding the\nstatute of limitations had not run on the claim. U.S. Bank prepared\na proposed written order memorializing the court’s judgment, but\nLewis objected, arguing the order failed “to clarify and make clear\nthe consequences and facts surrounding U.S. Bank’s filing of two\n(2) Motions for Summary Judgment . . . with identical titles,\nfollowed by an Errata.” The court entered final judgment over\nLewis’s objection.\n\n[CITATION]\n\n¶12 U.S. Bank later filed a motion to amend the judgment\nunder rule 59 of the Utah Rules of Civil Procedure, arguing the\ncourt had not properly addressed Lewis’s quiet title claims.\nShortly thereafter, Lewis filed a rule 60(b) motion for relief from\nthe court’s grant of summary judgment to U.S. Bank on its judicial\nforeclosure claim. Counsel argued she “encountered a scenario\nthat was unprecedented in her practice of law when U.S. Bank\nfiled two (2) separate pleadings titled ‘Motion for Summary\nJudgment and Memorandum in Support’” and that the filing of\nthe Errata caused “confusion,” which constituted mistake or\nexcusable neglect under rule 60(b)(1). Counsel declared in a\nsubsequent affidavit that due to the Errata “and the fact that . . .\nmultiple pleadings were filed by [U.S. Bank] with the same title\non the same date,” she “mistakenly failed to realize a separate\nmotion for summary judgment was filed on U.S. Bank’s claim for\njudicial foreclosure.”\n¶13 After a hearing, the court granted U.S. Bank’s rule 59\nmotion and issued an amended judgment. 3 The court denied\nF\n\n\nLewis’s rule 60(b) motion, finding Lewis had “not established the\nrequisite showing of ‘due diligence’ required for relief under” rule\n60(b)(1). The amended judgment affirmed the court’s prior grant\nof summary judgment to U.S. Bank on both Lewis’s claims and\nU.S. Bank’s judicial foreclosure claim.\n\n ISSUES AND STANDARDS OF REVIEW\n¶14 On appeal, Lewis argues the district court erred in\nconcluding his claims for quiet title and unjust enrichment were\nbarred by claim preclusion. “Whether res judicata, and more\nspecifically claim preclusion, bars an action presents a question of\nlaw that we review for correctness.” [CITATION]\n\n3. The substance of the amendment is not relevant to this appeal.\n\n 20220434-CA\n\n UT App 3 Lewis v. U.S. Bank Trust\n\n¶15 Next, Lewis argues the district court improperly granted\nsummary judgment to U.S. Bank on its judicial foreclosure claim.\nIn particular, he argues the court erred in determining the statute\nof limitations on the claim had not yet run. “We review summary\njudgment decisions for correctness, viewing the facts in a light\nmost favorable to the losing party below and giving no deference\nto the district court’s conclusions of law.” [CITATION].\n¶16 Finally, Lewis argues the district court abused its\ndiscretion in denying his rule 60(b)(1) motion. “We review a\ndistrict court’s denial of a rule 60(b) motion for relief from\njudgment for an abuse of discretion.” [CITATION].\n\n ANALYSIS\n I. Lewis’s Quiet Title and Unjust Enrichment Claims\n¶17 First, Lewis challenges the district court’s conclusion that\nres judicata barred his quiet title and unjust enrichment claims as\na matter of law. “The doctrine of res judicata embraces two\ndistinct branches: claim preclusion and issue preclusion.” [CITATION]. While\n“claim preclusion corresponds to causes of action[,] issue\npreclusion corresponds to the facts and issues underlying causes\nof action.” [CITATION] (cleaned up). Claim preclusion “is premised on the principle\nthat a controversy should be adjudicated only once.” [CITATION] (cleaned up). To this end, for claim preclusion to apply,\n(1) “both cases must involve the same parties or their privies,”\n(2) “the claim that is alleged to be barred must have been\npresented in the first suit or be one that could and should have\nbeen raised in the first action,” and (3) “the first suit must have\n\n[SEGMENT 20]\n\n 20220434-CA\n\n UT App 3 [CITATION]\nresulted in a final judgment on the merits.” Id. (cleaned up). [CITATION]\nchallenges only the court’s application of the second element of\nthis test to his claims.\n¶18 In determining whether claims “are the same as those\nbrought or that could have been brought” for claim preclusion\npurposes, Utah courts have adopted a transactional test. See [CITATION],\n2009 UT 47, ¶ 30. Under this test, claims are the same as those that\ncould and should have been brought in the prior suit “if they arise\nfrom the same operative facts, or in other words from the same\ntransaction.” [CITATION], 2019 UT App 213, ¶ 43 (cleaned up). This\ntest does not turn on “the specific legal theory invoked” but rather\non “the essential similarity of the underlying events giving rise to\nthe various legal claims,” considering “whether the facts are\nrelated in time, space, origin, or motivation” and “whether they\nform a convenient trial unit.” [CITATION], 2012 UT\n38, ¶¶ 13–14, 284 P.3d 622 (cleaned up).\n¶19 Here, the transaction giving rise to [CITATION]’s quiet title\nclaims in the Current Lawsuit and the First Lawsuit is the same.\nIn the First Lawsuit, [CITATION] sought to quiet title to the Property,\narguing the foreclosing parties did not timely initiate foreclosure\nproceedings and the statute of limitations on foreclosure had run.\nHe based that claim on the fact that default on the loan occurred\nin 2009 but foreclosure was not initiated until 2016—outside the\napplicable six-year statute of limitations. In the Current Lawsuit,\n[CITATION] again raised a quiet title claim, arguing this time—under\nthe doctrine of laches—that U.S. Bank and its predecessors in\ninterest “unreasonably delayed enforcing their rights against the\nProperty.” This claim was based on his factual allegations that\n“[f]rom July 2010, [U.S. Bank] or its claimed predecessors in\ninterest could have taken action against the Property” but failed\nto do so until 2016.\n¶20 Both claims concern the Property, were motivated by\n[CITATION]’s desire to prevent foreclosure of the Property, and concern\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nthe delay in foreclosure. And Lewis does not suggest that the\nviability of his laches claim hinges on the additional delay\nincurred between the First Lawsuit and the Current Lawsuit.\nAlthough premised on different legal theories—statute of\nlimitations versus laches—Lewis’s quiet title claims in the First\nLawsuit and Current Lawsuit arise from the same transaction.\nThe claims are related in time, space, origin, and motivation, see\nid. ¶¶ 13–14, and the laches-based claim could and should have\nbeen brought in the First Lawsuit.\n¶21 Likewise, Lewis’s unjust enrichment claim is based on the\nsame transaction and should have been raised in the First\nLawsuit. Lewis based his unjust enrichment claim in the Current\nLawsuit on his assertion that he “maintained” and “made\nsubstantial improvements to the Property,” thus “conveying a\nbenefit” on U.S. Bank. Lewis bought the Property on August 26,\n2014. And he claims he began improving the Property “by new\nconstruction” sometime in 2015. This means, by the time he filed\nthe First Lawsuit on August 23, 2016, he would have been able to\nbring an unjust enrichment claim based on his supposed\nmaintenance and improvement.\n¶22 Lewis declared that “additional maintenance and\nimprovements” to the Property since this “new construction”\nprovide the basis for the unjust enrichment claim in the Current\nLawsuit. (Emphasis added.) But this is a tacit acknowledgement\nthat Lewis improved the Property prior to the First Lawsuit.\nLewis makes no attempt to differentiate between improvements\nmade prior to the First Lawsuit and those supposed\nimprovements giving rise to his unjust enrichment claim in the\nCurrent Lawsuit. And he provides no detail to substantiate what\nhis supposed improvements are. Thus, we are left to conclude that\nthis claim is based—at least in part—on improvements made to\nthe Property prior to the First Lawsuit. Consequently, the unjust\nenrichment claim is based on the same operative facts as a claim\nthat should have been brought in the First Lawsuit.\n\n 20220434-CA\n\n UT App 3 [CITATION]\n¶23 Because Lewis’s quiet title claim, based on laches, and his\nunjust enrichment claim could and should have been raised in the\nFirst Lawsuit, and because the remaining elements of claim\npreclusion are undisputed, the district court correctly concluded\nthat claim preclusion barred Lewis’s claims as a matter of law. 43F\n\n\n II. U.S. Bank’s Judicial Foreclosure Claim\n¶24 Lewis challenges the district court’s conclusion that the\nstatute of limitations on U.S. Bank’s judicial foreclosure claim had\nnot begun to run. Under Utah Code section 57-1-34, a person\nseeking to foreclose on an obligation secured by trust deed must\neither “commence an action” for judicial foreclosure or initiate\nnonjudicial foreclosure by filing “a notice of default” “within the\nperiod prescribed by law.” In [CITATION], this court concluded the “period\nprescribed by law” is the six-year statute of limitations laid out by\nUtah Code section 70A-3-118(1). [CITATION] (cleaned up). Under\nsection 70A-3-118(1), this six-year statute of limitations begins to\n\n\n4. Lewis also argues that, in barring his claims based on claim\npreclusion, the district court somehow applied res judicata to bar\nhis defense to U.S. Bank’s judicial foreclosure claim. But in its\norder granting summary judgment, the court addressed U.S.\nBank’s judicial foreclosure claim on the merits. The court did not\napply res judicata to prevent Lewis from defending against\njudicial foreclosure. This argument is unavailing.\n5. Lewis argues U.S. Bank’s judicial foreclosure claim was a\ncompulsory counterclaim to the First Lawsuit and should\ntherefore be dismissed. But because this argument is unpreserved,\nwe do not address it further. See [CITATION] (“It is well established that we will not address the\nmerits of an unpreserved issue absent a showing that an exception\nto the preservation rule applies.”).\n\n 20220434-CA\n\n UT App 3 [CITATION]\nrun “after the due date or dates stated in the note, or, if a due date\nis accelerated, within six years after the accelerated due date.”\n¶25 Filing a notice of default is an acceleration, causing this\nstatute of limitations to begin to run. See [CITATION] (“As a result of the\ndefault notice, the [d]ebt was accelerated and immediately due in\nfull.”); [CITATION] (noting that filing a notice of default was an\n“acceleration event” that “triggered the limitations period”), cert.\ndenied, [CITATION]. A notice of default may be\ncancelled, thus halting the statute of limitations; however, filing a\nnew notice re-accelerates the obligation’s due date and restarts the\nstatutory period for foreclosure. See [CITATION]\n(acknowledging two previously filed notices of default\nhad been cancelled and the six-year statute of limitations began\nrunning anew when a third notice of default was filed).\n¶26 Here, the first notice of default on the loan obligation was\nfiled in 2010. It was later cancelled on May 1, 2014, but a new\nnotice was entered on the same day. This notice was later\ncancelled on April 30, 2020. This cancellation of the notice of\ndefault halted the six-year statute of limitations period for\nforeclosure. See [CITATION]. No new notice of default has been recorded.\nThus, the six-year limitations period for foreclosure had not even\nbegun by the time U.S. Bank filed its judicial foreclosure action,\nand the district court correctly concluded as much. 6 5F\n\n\n6. Lewis also argues genuinely disputed material facts precluded\nsummary judgment on U.S. Bank’s judicial foreclosure claim.\nLewis lists four allegedly disputed “facts,” but he makes no\nattempt to explain how they precluded summary judgment. And\nin his reply brief, he raises factual issues different from those in\nhis opening brief, again without a meaningful attempt to explain\n (continued…)\n\n 20220434-CA\n\n UT App 3 [CITATION]\n III. Lewis’s Rule 60(b) Motion\n¶27 Lastly, Lewis argues the district court abused its discretion\nin denying his motion for relief under rule 60(b) of the Utah Rules\nof Civil Procedure. “In general, a movant is entitled to have a\ndefault judgment set aside under [rule] 60(b) if (1) the motion is\ntimely; (2) there is a basis for granting relief under one of the\nsubsections of 60(b); and (3) the movant has alleged a meritorious\ndefense.” [CITATION]. Rule\n60(b) provides several bases for relief, including “mistake,\ninadvertence, surprise, or excusable neglect.” Utah R. Civ. P.\n60(b)(1). To qualify for relief under rule 60(b)(1), a movant must\ndemonstrate due diligence. See [CITATION]. “Due diligence is established where the failure\nto act was the result of the neglect one would expect from a\nreasonably prudent person under similar circumstances.” [CITATION]\n(cleaned up).\n\n[SEGMENT 21]\n¶28 Here, Counsel stated she received the e-filing notification\nfor U.S. Bank’s “Motions for Summary Judgment and\nMemorandum in Support.” (Emphasis added.) She also received\nU.S. Bank’s Errata, which corrected the Quiet Title Motion. She\nbelieved the Errata replaced previous pleadings and “that there\nwas only one pending Motion for Summary Judgment.” She then\nopposed only the Quiet Title Motion—leaving the Foreclosure\nMotion unopposed. Lewis argued the failure to oppose\n\nhow they precluded summary judgment. “Appellate courts are\nnot a depository in which a party may dump the burden of\nargument and research.” [CITATION] (cleaned up). As the appellant,\nLewis has “the burden to clearly set forth the issues [he is]\nappealing and to provide reasoned argument and legal\nauthority.” Id. Because he has not done so, we do not address this\nargument further.\n\n 20220434-CA\n\n UT App 3 [CITATION]\n\nconstituted excusable neglect or mistake under rule 60(b)(1)\nbecause “it was unprecedented in [Counsel’s] practice of law” to\nfile two separate motions for summary judgment, and the\nidentical captions created a “reasonable scenario in which” she\ncould believe there was only one motion filed. The district court\ndisagreed, finding that because Counsel “had notice of, but did\nnot respond to,” the Foreclosure Motion, her behavior was\n“unreasonable” and failed to “establish[] the requisite showing of\n‘due diligence’ required.” We agree with the district court.\n¶29 “A multitude of Utah decisions” confirm that “failure to\ncheck or read correspondence” demonstrates a lack of due\ndiligence. [CITATION] (collecting cases), cert. denied, Jan. 2,\n2024 (No. 20231057); see id. ¶¶ 14–15 (concluding a party who\nignored emails from its registered agent about service of process\n“failed to act with diligence—let alone the due diligence required\nto justify relief under rule 60(b)(1)”—because “a reasonably\ndiligent person would have read these emails and discovered\ntheir content”); [CITATION] (reasoning an attorney who “failed to read\nthe documents” he received “did not exercise the appropriate\nlevel of diligence required to excuse his neglect, because his\ncomplete lack of action does not meet the standard required, i.e.,\nthe exercise of due diligence by a reasonably prudent person\nunder similar circumstances” (cleaned up)).\n¶30 At the very least, due diligence required Counsel to read\nthe documents she received. Had she done so, she would have\nknown U.S. Bank filed two separate motions for summary\njudgment. The first page of the Foreclosure Motion stated, “U.S.\nBank Trust has simultaneously filed a separate motion for\nsummary judgment as to Mr. Lewis’s claims against U.S. Bank\nTrust.” And it noted later, “U.S. Bank adopts and incorporates all\narguments and citations in the simultaneously-filed Motion for\nSummary Judgment that address Mr. Lewis’s quiet title and\n\n 20220434-CA\n\n UT App 3 Lewis v. U.S. Bank Trust\n\nunjust enrichment claims.” “[F]ailing to read the documents after\nreceiving them does not qualify” as due diligence. [CITATION] Without a showing of due\ndiligence, Lewis was not eligible for relief for mistake or\ninadvertence under rule 60(b)(1). See [CITATION] And\nwithout a basis for relief under rule 60(b), the district court did\nnot abuse its discretion in denying the motion.\n\n CONCLUSION\n¶31 The district court correctly concluded that Lewis’s quiet\ntitle and unjust enrichment claims were barred by claim\npreclusion and that the statute of limitations on U.S. Bank’s\njudicial foreclosure claim had not run. And the court acted within\nits discretion in denying Lewis’s rule 60(b) motion for relief from\nthe judgment. Accordingly, we affirm.\n\n\n 20220434-CA\n\n UT App 3 \n\nNow, respond to the instruction.\n### Instruction:\nFor the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:\n- \"Related Segments\": Segments where the \"Target Case\" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.\n- \"Supporting Segments\": Segments where the \"Target Case\" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.\n\n### Target Case:\n This opinion is subject to revision before final\n publication in the Pacific Reporter\n 2023 UT 22\n\n IN THE\n\n SUPREME COURT OF THE STATE OF UTAH\n\n STATE OF UTAH,\n Appellee,\n v.\n CHRISTOPHER DOUGLAS CENTENO,\n Appellant.\n\n No. 20200875\n Heard February 8, 2023\n Filed October 5, 2023\n\n On Direct Appeal\n\n Fourth District, Provo\n The Honorable Donald J. Eyre\n The Honorable James R. Taylor\n No. 181403119\n\n Attorneys:\n Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Solic. Gen.,\n Salt Lake City, for appellee\n Herschel Bullen, Salt Lake City, for appellant\n\n JUSTICE POHLMAN authored the opinion of the Court, in which\n CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,\n JUSTICE PETERSEN, and JUSTICE HAGEN joined.\n\n\n JUSTICE POHLMAN, opinion of the Court:\n INTRODUCTION\n ¶ 1 While angry and drunk, Christopher Douglas Centeno choked\nhis girlfriend, A.C., to unconsciousness in front of their two-year-old\ndaughter and then raped A.C. twice. A jury convicted Centeno on two\ncounts of rape, one count of aggravated assault, and two counts of\ndomestic violence in the presence of a child. We reject Centeno’s\nmultiple claims of error and affirm his convictions.\n\f STATE v. CENTENO\n Opinion of the Court\n\n ¶ 2 First, Centeno contends the district court abused its discretion\nin not withholding from jury deliberations a video exhibit of his police\ninterview. He claims the exhibit should have been withheld from the\njury room because it placed undue emphasis on his police interview,\nviolated his constitutional rights, and prejudicially depicted him in\nhandcuffs. We conclude that the district court did not abuse its\ndiscretion in rejecting Centeno’s undue emphasis objection, and we\ndo not reach his other theories because they are unpreserved.\n ¶ 3 Second, Centeno asserts he received constitutionally\nineffective assistance of counsel. Specifically, he contends defense\ncounsel provided ineffective assistance by not objecting to the\nadmission of the audio and video footage of A.C.’s interactions with\nlaw enforcement. And he contends counsel was further ineffective in\nnot keeping a portion of that footage—which was not played in open\ncourt—out of the jury room. We reject Centeno’s challenge because he\nhas not shown that he was prejudiced by the alleged deficient\nperformance.\n ¶ 4 Third, Centeno contends the district court erred in denying his\nmotions for a mistrial and a new trial. The State dismissed A.C.’s\neight-year-old daughter early in her testimony after she broke down\non the witness stand. Centeno argues he did not receive a fair trial\nbecause the situation violated his constitutional right to confrontation\nand left the jury to speculate about the reason for her breakdown.\nBecause Centeno could have called the child to testify after being\ndismissed by the State, we conclude that the district court did not err\nin denying his motions.\n BACKGROUND 1\n ¶ 5 Christopher Centeno and A.C. began dating in 2015. At the\ntime, A.C. had one daughter (Child). In 2016, A.C. and Centeno had\na daughter together (Toddler). Over the course of Centeno and A.C.’s\nrelationship, Centeno lived in A.C.’s apartment on and off.\n ¶ 6 In the summer of 2018, Centeno and A.C.’s relationship\nbecame volatile. Centeno’s physical and verbal abuse led to police\nbeing called to A.C.’s apartment several times. In October 2018, a\nseries of events resulted in the criminal convictions Centeno\nchallenges on appeal.\n\n_____________________________________________________________\n 1 “On appeal from a jury verdict, we view the evidence and all\n\nreasonable inferences in a light most favorable to that verdict and\nrecite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2, 114 P.3d\n551 (cleaned up).\n 2\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\n The Rape and Assault\n ¶ 7 One afternoon, A.C., Centeno, and Centeno’s cousin (Cousin)\ngathered at A.C.’s apartment for a meal, planning to watch a boxing\nmatch that evening. But things dissolved when Centeno and Cousin\nbegan to argue. Cousin thanked A.C. for the meal—to which A.C.\nthanked him for eating—and left.\n ¶ 8 Centeno turned his anger toward A.C. for what he perceived\nas “inappropriate behavior” with Cousin. Centeno viewed A.C.’s\n“thank you” to Cousin as flirtatious and accused her of wanting to\nhave sex with him. A.C. denied the accusation. She told Centeno that,\nif anything, she was on the receiving end of things, recounting an\nincident when Cousin playfully bumped hips with A.C. while\nmaneuvering around the tight quarters of A.C.’s apartment. But\nA.C.’s denial and explanation were to no avail. Centeno left the\napartment to watch the match, and A.C. stayed home, crying and\nupset.\n ¶ 9 Later that evening, Centeno returned intoxicated and\ncarrying a bottle of vodka. After a series of arguments, A.C.\neventually lay down with Toddler in the bedroom. Centeno followed.\nHe sat on the foot of the bed, “rocking back and forth,” “laughing and\ncrying,” and telling A.C. he was “so sorry for what’s about to\nhappen” and that “you made me do this.” Centeno was “acting like\nhe never ha[d] before.” He told A.C. that his friends would not\nrespect him if he did not “follow through with getting rid of [her]”\nand that she was “going to die tonight.”\n ¶ 10 A.C. tried to comfort Toddler, who appeared to be\nconcerned about her dad and wanted to hug him. A.C. explained to\nToddler that Centeno was upset over losing his father and\ngrandmother, but A.C.’s words infuriated Centeno. He grabbed A.C.\nand began hitting her in the head and face. A.C.’s glasses flew off and\nbroke. Centeno then got on top of A.C., pinned her arms under his\nknees, and choked her. Toddler began yelling and crying for A.C., as\ndid Child, who was in a nearby room. With one hand over A.C.’s nose\nand mouth and the other on her neck, Centeno choked her until she\nlost consciousness.\n ¶ 11 When A.C. came to, Centeno immediately covered her nose\nand mouth and choked her a second time until she passed out again.\nThis time when A.C. came to, Centeno was no longer on top of her\nbut was sitting against the bed’s backboard. A.C. sat up in the bed\nand noticed she was “soaking wet,” having urinated on herself while\nbeing choked. She also had “a really hard time breathing,” her “chest\n\n\n 3\n\f STATE v. CENTENO\n Opinion of the Court\n\nhurt,” her “ear hurt really bad,” her “front bottom teeth felt really\nloose,” and her “lip was really swollen.” “[E]verything was stinging.”\n ¶ 12 Centeno then accused A.C. of infidelity. He demanded A.C.\ngive him the phone number of a man he accused her of seeing. She\ndenied the accusation and said she had no phone number to give him.\nUnsatisfied with her answers, Centeno got on top of A.C. again,\nhitting her in the head and choking her for a third time. During this\nattack, Toddler sat beside A.C.’s head, trying to put A.C.’s glasses\nback on her face. A.C. did not pass out during this third beating, and\nCenteno eventually stopped.\n ¶ 13 After the assault ended, A.C. asked Centeno if she could\npick Toddler up. Centeno responded by slapping A.C. and then\nsaying, “You can now.” Still wet with urine, A.C. lay with Toddler in\nthe bed for about an hour until Toddler fell asleep. At this point, A.C.\nasked Centeno if she could use the bathroom. Centeno said “yes” and\nfollowed her there. While A.C. sat on the toilet, Centeno demanded\nshe perform oral sex on him. A.C. complied while “flinching”\nthrough pain.\n ¶ 14 Midway through the oral sex, Centeno told A.C. to let him\nhave sex with her. Again placating Centeno, A.C. complied but asked\nhim if she could first remove her shirt because it was covered in urine.\nCenteno said he did not mind the smell and did not let A.C. take off\nher shirt. A.C. walked over to the mattress on the floor in the living\nroom, and Centeno proceeded to have sex with her. A.C. later\ndescribed the intercourse as painful, and she “remember[ed] saying\n[to Centeno] that it was hurting.” She testified Centeno “knew that\n[she] didn’t want it to continue because of . . . [her] body language.”\nWhen the intercourse ended, Centeno told A.C., “I know that you\nhate it when I fuck you like that.”\n ¶ 15 A.C. got up and went to shower. The water felt painful\nagainst her skin. She vomited. After some time, A.C. got out, put\nsome clothes on, spread a blanket over the urine spot on her mattress,\nand lay next to Toddler. A.C. tried to fall asleep but “felt like [she]\nwas going to die in [her] sleep because [her] head hurt so bad.”\nCenteno slept in bed next to her, holding her phone, which he had\ntaken earlier in the night.\n ¶ 16 In the morning, A.C. was “in way more pain than [she] was\nthe night before.” The sides of her neck hurt, she was swollen beneath\nher chin, and contact with her skin was painful. She tried to figure out\nhow to leave the apartment. But before she could decide her next\nmove, Centeno told A.C. to let him have sex with her again. A.C. did\nnot want to, but she did not feel like she could say no. When Centeno\n 4\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\ncompelled A.C. to have intercourse with him, Toddler was lying\nbeside A.C., staring up at her. Crying, A.C. reached down to cover\nToddler’s eyes. Centeno moved A.C.’s hand and told A.C. that\nToddler could watch because she “doesn’t know what’s happening.”\n ¶ 17 After Centeno was finished, A.C. got up and dressed\nherself. Centeno placed A.C.’s phone on the bookshelf in the bedroom\nand told A.C. that she was “not going to call anyone.” Centeno then\nfollowed A.C. into the kitchen. While Toddler was eating breakfast,\nCenteno said to Toddler, “Hey, [Toddler], do you want me to kill\nyour mommy? Yes? Or no? Yes? Or no?” Toddler, who was learning\nto say yes, said yes. Child overheard this and began crying.\n ¶ 18 After breakfast, Centeno lay on the mattress in the living\nroom and watched television with the children. Noticing Centeno\nwas falling asleep, A.C. retrieved her phone and called her mother\n(Mother). A.C. told Mother to come quickly and pick her up from her\napartment because Centeno “tried to kill [her] last night.” Minutes\nlater, Mother arrived. She gave Centeno an excuse as to why she\nneeded to take A.C. and the children for the day, and A.C., the\nchildren, and Mother left the apartment and got into Mother’s van.\nMother drove the van around the corner of the apartment complex,\nsat in a parking lot, and called the police.\n The Police Interviews\n ¶ 19 When law enforcement arrived, an officer (Officer) spoke\nwith A.C. through the open window of Mother’s van. Officer noticed\nbruises on A.C.’s neck. He asked her how long she had been out of\nthe apartment and if she had a way to reach Centeno. A.C. told Officer\nthat Centeno did not have a phone number but that he used a\nmessenger app. Officer asked A.C. if she could try to contact Centeno.\nA.C. did so and noticed that his phone was “not connecting.” She told\nOfficer, “I think he’s gone. . . . He doesn’t have wifi on his phone. I\nthink he’s left.”\n ¶ 20 A.C., Mother, and the children followed the police to the\nstation. When they arrived, A.C. threw up in the parking lot. Inside\nthe police station, Officer sat down with A.C. in an interview room\nand gathered her personal information. He told A.C., “I appreciate\nyou calling in. I know it takes a lot of strength . . . . We are here for\nyou, okay? . . . Decisions are made but it doesn’t make it allowable for\nhim to do anything, okay?”\n ¶ 21 Officer then asked A.C. to walk him through the incident.\nA.C. told Officer that she and Centeno got into an argument about\nCousin and that Centeno hit her in the head “maybe like 100 times”\n\n 5\n\f STATE v. CENTENO\n Opinion of the Court\n\nand choked her three times. She also explained that her face and neck\nwere swollen and that she had been throwing up. But as A.C. was\ntelling Officer more about the incident, a detective (Detective) entered\nthe room and ended A.C.’s interview with Officer so that A.C. could\nreceive medical care at the hospital.\n ¶ 22 Around the same time, Centeno arrived in handcuffs at the\npolice station, having been apprehended after an attempted flight\nfrom law enforcement. He was taken to an interview room, where\nDetective removed the handcuffs.\n ¶ 23 When Detective asked Centeno what happened the night\nbefore, Centeno responded, “I really don’t remember. I was\nintoxicated and I was, you know, pretty drunk, man.” Detective\nasked Centeno if he remembered hitting A.C., and Centeno replied,\n“Like I told you, I don’t remember, man.” Detective then asked\nCenteno when he and A.C. last “had consensual sex.” Centeno\nresponded, “Consensual sex? . . . What do you mean?” He told\nDetective they had sex earlier that morning, and he stated, “I hope\nshe’s not saying like, I mean, she’s my girlfriend, could I be charged\nwith that, like is that a thing like rape?” When Detective told Centeno\nthat “rap[ing] your wife” is a legal possibility, Centeno expressed\ndisbelief, saying, “Geez, man. . . . Crazy, that’s crazy.”\n ¶ 24 Soon thereafter, Centeno admitted to Detective that he had\nassaulted A.C. When Detective told Centeno that A.C. had “marks\nwhere [Centeno] strangled her,” Centeno replied, “I know but I’m\nguilty of that, man, but not of the rape, man, not of the rape.”\n The Trial\n ¶ 25 The State tried Centeno on two counts of rape, two counts\nof aggravated assault, and two counts of domestic violence in the\npresence of a child. The jury trial spanned four days in February 2020\nand included testimony from A.C., Child, Mother, Officer, the sexual\nassault nurse examiner who examined A.C. at the hospital (Nurse),\nDetective, and Centeno.\n ¶ 26 The State called A.C. first. Struggling to contain her\nemotions, A.C. testified that on the night in question Centeno hit her\n“a ton of times” and choked her three times, two of which left her\nunconscious. As A.C. testified about the choking, she began to feel\ndizzy, and the prosecution gave her a moment. Once composed, A.C.\ntestified that, after the choking, her brain was “not working” well\nbecause her head “was so swollen,” her face and lips “were swollen,”\nand her “teeth were hurting.” She explained that she went into the\nbathroom, and Centeno followed her in and told her to perform oral\n\n 6\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\nsex on him. She testified that Centeno then demanded that she have\nsex with him on the mattress in the living room. She said that she\nwent to sleep after Centeno finished and that Centeno again\ndemanded sex early the next morning. A.C. testified that she\ncomplied because “[i]t was not safe to say no.”\n ¶ 27 The State also called eight-year-old Child to testify. When\nthe prosecutor asked Child some preliminary questions, she had\ndifficulty answering. Then, when asked if she “remember[ed] the last\nnight that [Centeno] was in [her] house,” Child became emotionally\ndistraught. The State requested a recess, which the court granted.\nAfter the recess, the State elected not to resume its examination.\n ¶ 28 Outside the jury’s presence, defense counsel conceded that\nCenteno “[c]ertainly” did not want the State to resume its\nexamination of Child, but he objected to the “situation” as “unfairly\nprejudicial” and moved for a mistrial. Specifically, counsel argued\nthat the jury was left to “wild[ly] speculat[e] as to why [Child was]\ncrying.” The court denied the motion but invited counsel to propose\na curative instruction. After some discussion, and once the jury\nreturned, the court provided the following instruction:\n [G]iven the emotional state of the last witness . . . the\n prosecution has determined that they’re not going to call\n that witness and since there’s no information that is\n relevant to this case [that] was elicited from that witness,\n you should not take into consideration the fact that she\n took the witness stand but now is not going to proceed\n at all. That should have no relevance with respect to\n your decisions in this case.\n ¶ 29 Mother took the stand next. Mother testified that when she\narrived at A.C.’s apartment, A.C.’s face was “super red” and\n“swollen.” And Mother testified that after A.C. got out of the\napartment, A.C. was “frightened,” “crying,” and “threw up.”\n ¶ 30 The State also called Officer. Officer testified that he\nresponded to Mother’s police call, and the State moved to admit\nOfficer’s body camera footage (Exhibit 19). The defense did not object,\nand the court received Exhibit 19. The State played for the jury the\nfirst portion of the recording, which was audio and video footage of\nOfficer talking with A.C. in Mother’s van. The State then asked\nOfficer about his preliminary interview with A.C. at the police\nstation. Officer testified that he observed A.C.’s “face was swollen”\nand that she “had some marks around her neck and some bruises on\nher face.” Officer testified that A.C. reported having been “hit in the\nface multiple times” and having “vomited several times.”\n 7\n\f STATE v. CENTENO\n Opinion of the Court\n\n ¶ 31 Similarly, Nurse testified that she observed bruises on\nA.C.’s face and neck. Nurse testified that, during the examination,\nA.C. disclosed that Centeno “sat on top of her and . . . choked [her]”\nand that he forced her to have sex with him. And Nurse testified that\nthe injuries on A.C.’s neck were consistent with her report of being\nchoked.\n ¶ 32 Detective testified that when he arrived at the station,\nOfficer was interviewing A.C. The State then pulled up the second\npart of Exhibit 19, Officer’s body camera footage from the interview\nroom. The State did not play the footage for the jury but instead\nshowed Detective and the jury a still image from the exhibit, which\nDetective confirmed depicted A.C. in the interview room. Detective\ntestified that he noticed A.C. was “emotionally upset” and\n“physically injured,” with “red marks” and “swelling to her face and\nneck.” And he testified that A.C. “made comments about vomiting.”\n ¶ 33 Detective also testified about his interview with Centeno. At\nthat point, the State moved to admit portions of the audio and video\nfootage from that interview (Exhibit 27). The defense made no\nobjection, and the State played the footage for the jury.\n ¶ 34 Finally, Detective addressed the State’s forensic evidence.\nOn cross-examination, defense counsel asked Detective about\nblankets and articles of clothing A.C. brought in during a follow-up\ninterview. Although the blankets were “on the bed where the alleged\nstrangulation happened,” Detective acknowledged that “no\nindications of urine were detected” on the blankets. Detective further\ntestified that A.C.’s clothing, though collected, was not tested and that\nthis “may have been an oversight.” Detective conceded that it would\nhave been “significant” if testing of the clothing had come back\nnegative because A.C. had “indicated that [her clothing] was\nessentially soaked . . . with urine.”\n ¶ 35 After the State rested its case-in-chief, Centeno took the\nstand in his own defense. On direct examination, Centeno admitted\nthat on the night in question he had argued with A.C. and that he was\n“guilty of domestic violence.” He explained that he “put [his] hands\non her,” “slapped her,” and “hit her,” though he denied hitting A.C.\nwith “full force” or putting his hands around her neck. As for the\naccusations of rape, he denied those, too. He testified that the\nmorning after the assault, he talked to A.C., they “kissed and ma[d]e\nup,” they “ha[d] sex,” and A.C. “never once” indicated she did not\nwant to do so.\n ¶ 36 Centeno also testified about his flight from law\nenforcement. Defense counsel had originally intended to avoid\n 8\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\ntestimony about Centeno’s flight, and he had successfully moved to\nexclude evidence on the issue. But some of Centeno’s comments led\ncounsel to believe that the flight evidence was “coming in whether\n[counsel] want[ed] [it] to or not.” So counsel decided to broach the\nsubject first and asked Centeno about it. Centeno testified that when\nthe police arrived at the apartment shortly after A.C. had left, he\n“freaked out.” Centeno stated that he did not open the apartment\ndoor, explaining, “I mean, who wants to go to jail? . . . I know that’s\nwhat’s going to happen, you know.” Centeno then testified that after\nten to fifteen minutes had passed, he opened the door to leave. He\ninitially tried to walk away, but he ran from the police when they\nshouted at him.\n ¶ 37 On cross-examination, Centeno walked back his earlier\ndenial of putting his hands on A.C.’s neck, and he admitted to causing\nthe swelling, red marks, and bruising on her face and neck. He also\nacknowledged that he had choked her, but he claimed that it was a\npart of “aggressive sex.” The State followed up by asking Centeno\nwhy he had admitted to Detective that he strangled A.C. Centeno\nexplained that his “first language is not English” and that he “worded\nit wrong.”\n ¶ 38 During closing arguments, the State, among other things,\ninvited the jury to consider Centeno’s admissions and to compare his\npolice interview with his trial testimony. The State argued that the\n“version of events” Centeno testified to at trial was inconsistent with\nhis statements to Detective. For its part, the defense conceded that the\nState had provided “clear beyond a reasonable doubt evidence that\n[Centeno] from the outset has not disputed that he committed assault\nwith substantial bodily injury and domestic violence in the presence\nof a child times two.” Counsel even suggested that the jury “find\n[Centeno] guilty” of those charges. But counsel insisted that “there\nare too many holes” in the charges for rape and aggravated assault to\nfind Centeno guilty of them.\n ¶ 39 The district court sent the jury to deliberate. The trial\nexhibits, including video footage of Centeno’s police interview and of\nOfficer’s body camera, went with the jury into deliberations. Shortly\nafterward, defense counsel objected to “the video footage” going\nback to the jury room. The defense asserted that having those exhibits\ngo with the jurors “bolster[s] the prosecution’s case” and was akin to\n“get[ting] transcripts of all the testimony that they’ve heard.” The\ncourt overruled the objection.\n ¶ 40 The jury ultimately acquitted Centeno on one count of\naggravated assault but convicted him on two counts of domestic\n\n 9\n\f STATE v. CENTENO\n Opinion of the Court\n\nviolence in the presence of a child, one count of aggravated assault,\nand two counts of rape. 2 Centeno later moved the district court for a\nnew trial, arguing in part that he was “completely deprived” of his\n“ability to confront one of the witnesses against him” because the\nState discontinued its examination of Child after she became\nemotional. The court denied Centeno’s motion, finding that the\ndefense “made no attempt to call the child as a witness,” and\nconcluding that “there was no error, let alone prejudicial error.”\n ¶ 41 Centeno appeals.\n ISSUES AND STANDARDS OF REVIEW\n ¶ 42 Centeno first argues the district court erred in not excluding\nfrom the jury’s deliberations the exhibit containing footage of his\npolice interview. We review a district court’s decision to not withhold\na trial exhibit from jury deliberations for an abuse of discretion. Wyatt\nv. State, 2021 UT 32, ¶ 21, 493 P.3d 621.\n ¶ 43 Second, Centeno contends his trial counsel was\nconstitutionally ineffective for not objecting to the admission of the\nfootage of Officer’s interactions with A.C. Also, Centeno contends\nthat counsel was ineffective in allowing the portion of the exhibit that\nhad not been played for the jury to go with the jury into deliberations.\n“An ineffective assistance of counsel claim raised for the first time on\nappeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89\nP.3d 162.\n ¶ 44 Third, Centeno argues the district court erred in denying his\nmotions for a mistrial and a new trial. “We review the denial of a\nmotion for a mistrial under an abuse of discretion standard.” State v.\nSilva, 2019 UT 36, ¶ 36, 456 P.3d 718. We also generally review a\ndistrict court’s denial of a motion for a new trial for abuse of\ndiscretion, but we review any underlying legal conclusions for\ncorrectness. See State v. Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551.\n ANALYSIS\n I. EXHIBIT 27\n ¶ 45 After the jury retired to deliberate, Centeno objected to\nExhibit 27—the footage of his police interview—going back to the\njury room, arguing that allowing the jury to view the exhibit\n\n\n\n_____________________________________________________________\n 2 The jury acquitted Centeno of an aggravated assault charge in\n\nwhich the State alleged that he had threatened A.C. with a knife.\n 10\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\n“bolster[ed] the prosecution’s case” and placed undue emphasis on\nthe interview.3 The district court overruled the objection.\n ¶ 46 On appeal, Centeno challenges the court’s overruling of his\nundue emphasis objection, arguing that allowing the jury to review\nthe footage in its deliberations was an abuse of discretion. Centeno\nalso posits two new theories on appeal: first, that the court erred in\noverruling his objection because allowing the jury to have the exhibit\nviolated his constitutional rights to be present during all critical\nstages of the proceedings and to confront the witnesses against him;\nand second, that the court erred in overruling his objection because\nthe video depicted him in handcuffs.\n ¶ 47 We hold that the district court did not abuse its discretion in\noverruling Centeno’s undue emphasis objection and allowing the\njury to take Exhibit 27 into its deliberations. Because Centeno’s\nalternative theories are not preserved, and no exception to the\npreservation rule applies, we do not reach their merits.\n A. Undue Emphasis Objection\n ¶ 48 Centeno contends that the district court erred when, over\nhis objection, it allowed the footage of his police interview to go back\nwith the jury during deliberations. We disagree.\n ¶ 49 Rule 17(k) of the Utah Rules of Criminal Procedure\n“occupies the field” regarding the exhibits that juries in criminal cases\ncan take into their deliberations. Wyatt v. State, 2021 UT 32, ¶ 21, 493\nP.3d 621. The rule states, in relevant part: “Upon retiring for\ndeliberation, the jury may take . . . all exhibits which have been\nreceived as evidence, except exhibits that should not, in the opinion\nof the court, be in the possession of the jury, such as exhibits of\nunusual size, weapons or contraband.” UTAH R. CRIM. P. 17(k).\n ¶ 50 Thus, as we recently observed in Wyatt v. State, the rule\n“expressly allows the jury to take all exhibits back to deliberations\nexcept those which the court decides in its discretion the jury should\nnot have.” 2021 UT 32, ¶ 19. And a court abuses its discretion only\nwhen allowing the exhibit in the jury room would “create a likelihood\n[of] injustice,” such as when the court is motivated by “bias,\nprejudice, or malice,” or “when its decision was against the logic of\n_____________________________________________________________\n 3 Centeno’s objection was general in nature and appeared to apply\n\nto both video exhibits, Exhibit 19 (A.C.’s interactions with Officer) and\nExhibit 27 (Centeno’s police interview). But because Centeno has\nchallenged the district court’s ruling only as it applies to Exhibit 27, we\nlimit our analysis accordingly.\n 11\n\f STATE v. CENTENO\n Opinion of the Court\n\nthe circumstances and so arbitrary and unreasonable as to shock one’s\nsense of justice.” See id. ¶ 23 (cleaned up).\n ¶ 51 In exercising its discretion, the court “may consider whether\nthe jury’s unfettered access to the exhibit would lead to undue\nemphasis.” Id. ¶ 24. But as we noted in Wyatt, a defendant’s out-of-\ncourt statements are “not typically a category that causes concern”\nunder rule 17(k). Id. ¶ 26. This is because a defendant’s statement\nimpugning his own credibility or incriminating himself carries “little\nrisk” of undue emphasis—instead, statements the defendant has\nfurnished against himself generally “warrant[] whatever emphasis\nmay result.” See id. ¶¶ 24, 26 (cleaned up).\n ¶ 52 Here, we conclude that the district court did not abuse its\ndiscretion when it overruled Centeno’s objection and allowed the jury\nto take Exhibit 27 into deliberations. By default, rule 17(k) allows\nExhibit 27 to go back with the jury. 4 And although the jury’s access to\nthe footage of Centeno’s police interview may have supported the\nState’s case, any emphasis that the jury placed on Exhibit 27 in\ndeliberations was not unwarranted. In speaking with Detective,\nCenteno furnished evidence against himself, and the State used that\nevidence to introduce admissions and show inconsistencies in\nCenteno’s story. As we recognized in Wyatt, a defendant’s\nincriminating out-of-court statements generally “warrant[] whatever\nemphasis” the jury chooses to place on them. Id. ¶ 24 (cleaned up).\nAllowing that evidence to accompany the jury to its deliberations was\nnot so arbitrary and unreasonable as to shock our sense of justice, and\nthus we affirm.\n B. Unpreserved Theories\n ¶ 53 Centeno alternatively contends the court abused its\ndiscretion in allowing the jury to take Exhibit 27 into deliberations\nbecause doing so violated his constitutional rights to be present\nduring a critical stage of the proceedings and to confront the\nwitnesses against him. Centeno also complains that he was\nprejudiced by the video because it showed him in handcuffs. The\nState contends Centeno has not preserved these theories. We agree\nwith the State.\n_____________________________________________________________\n 4 In Wyatt v. State, we referred rule 17(k) to our advisory committee\n\non the rules of criminal procedure “for direction on whether the rule\nitself should include additional guidelines for a district court in\ndetermining whether an exhibit should be withheld from the jury.”\n2021 UT 32, ¶ 24 n.28, 493 P.3d 621. The committee currently has the\nissue under consideration. We look forward to receiving its report.\n 12\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\n ¶ 54 Under our preservation rule, any issue brought on appeal\n“must be sufficiently raised to a level of consciousness before the trial\ncourt” such that the court has “an opportunity to rule on” it. State v.\nSanchez, 2018 UT 31, ¶ 30, 422 P.3d 866 (cleaned up). This requirement\npromotes judicial economy and fairness. State v. Larrabee, 2013 UT 70,\n¶ 15, 321 P.3d 1136. And the preservation rule “applies to every claim,\nincluding constitutional questions,” unless a defendant demonstrates\nan exception applies. Id. (cleaned up).\n ¶ 55 Centeno contends his objection was “broad enough to\npreserve” the confrontation and prejudice theories he now presents\non appeal. But for purposes of preservation, “we view issues\nnarrowly,” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443 (cleaned\nup), and require a party to raise an issue before the district court with\nspecificity, id. ¶ 15. Moreover, where “a party makes an objection at\ntrial based on one ground, [that] objection does not preserve for\nappeal any alternative grounds for objection.” State v. Low, 2008 UT\n58, ¶ 17, 192 P.3d 867. Here, Centeno’s objection on grounds of undue\nemphasis did not raise before the district court the issues that he now\nasserts on appeal: that his rights to be present and to confront adverse\nwitnesses were violated, and that the video unfairly depicted him in\nhandcuffs. Accordingly, he did not preserve these theories. See\nSanchez, 2018 UT 31, ¶ 30; Low, 2008 UT 58, ¶ 17.\n ¶ 56 Centeno alternatively asserts that, to the extent we deem\nthese theories unpreserved, we should consider them under the\nexceptional circumstances exception to the preservation rule.\n ¶ 57 It is well established that we will not address the merits of\nan unpreserved issue absent a showing that an exception to the\npreservation rule applies. See, e.g., Johnson, 2017 UT 76, ¶ 15. The\nexceptional circumstances doctrine is one of those exceptions, State v.\nFlora, 2020 UT 2, ¶ 9, 459 P.3d 975, but it “is applied sparingly” and\nreserved “for the most unusual circumstances,” Johnson, 2017 UT 76,\n¶ 29 (cleaned up). To invoke the doctrine, a party must make a\nshowing of “a rare procedural anomaly,” id. ¶ 31, and only then will\nthe court “consider the effects of the anomaly, and whether those\neffects warrant an exception to our preservation requirement,” id.\n¶ 37. In analyzing these effects, we may consider, among other things,\nwhether “manifest injustice” would result from not reaching the\nmerits of the issue and whether “a significant constitutional right or\nliberty interest is at stake.” Id. (cleaned up).\n ¶ 58 Centeno argues, for the first time in his reply brief, that\nexceptional circumstances exist because “it is asking a great deal of\ndefense counsel to come up with a fully briefed articulation of the\n\n 13\n\f STATE v. CENTENO\n Opinion of the Court\n\nbasis of his objection . . . under the pressure of the trial proceedings.”\nWe reject this argument for two reasons. First, it is untimely. We\ntypically do not address issues raised for the first time in a reply brief.\nId. ¶ 16. Second, we do not see it as a “rare procedural anomaly” to\nrequire a trial attorney to identify the legal basis for an objection—\neven under the pressure of trial. See id. ¶ 29. Were it otherwise, the\nexception would swallow the rule.\n II. INEFFECTIVE ASSISTANCE OF COUNSEL\n ¶ 59 At trial, the State called Officer to testify and, on direct\nexamination, introduced Officer’s body camera footage as Exhibit 19.\nThe exhibit contained two relevant parts: A.C. in Mother’s van talking\nwith Officer and A.C.’s interview with Officer at the police station. 5\n ¶ 60 In the first part, A.C. is speaking with Officer through an\nopen car window shortly after Mother helped her leave the\napartment. During the two-minute exchange, Officer asks A.C. if she\nhas a way to contact Centeno. Unable to reach him on a messenger\napp, A.C. tells Officer that she thinks Centeno has “left” and is “gone”\nfrom the apartment.\n ¶ 61 The second part of Exhibit 19 captures A.C.’s seventeen-\nminute interview with Officer at the police station. The video begins\nwith Officer taking down A.C.’s personal information and telling\nA.C. that he appreciates her calling and that he knows “it takes a lot\nof strength.” Officer then asks A.C. to walk him through the incident.\nShe tells Officer that she and Centeno argued the night before and\nthat he hit her in the head “maybe like 100 times” and choked her\nthree times. She also explains that her face and neck are swollen and\nthat she has been throwing up. Before A.C. has a chance to tell the rest\nof her story, Detective enters the room and interrupts the interview\nto ask A.C. to go to the hospital to receive medical care.\n ¶ 62 When the State moved to admit Exhibit 19, defense counsel\nmade no objection. The State played the first part of the video—the\nvan footage—for the jury. The second part—the station footage—was\nnot played; only a still shot of A.C. in the interview room was shown.\nWhen the jury retired for deliberations, the district court sent the trial\nexhibits, including Exhibit 19, with the jury.\n\n_____________________________________________________________\n 5 Exhibit 19 also contained a third part, showing Officer and other\n\nlaw enforcement personnel walking through A.C.’s apartment. This\nfootage has no audio and was played for the jury in open court. As\nCenteno concedes, part three “reveals nothing material to the\ndiscussion in this appeal” and so we need not discuss it further.\n 14\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\n ¶ 63 Centeno contends that defense counsel rendered\nconstitutionally ineffective assistance in two ways relating to Exhibit\n19. First, Centeno argues that counsel provided ineffective assistance\nby not objecting to the exhibit’s admission on the ground that it was\ninadmissible hearsay. Second, Centeno argues that counsel was\nineffective in not objecting to the jury taking the station footage into\ndeliberations because that segment of the video was not played in\nopen court. 6\n ¶ 64 “To prove ineffective assistance of counsel, the defendant\nmust establish two things: first, that trial counsel performed\ndeficiently and second, that trial counsel’s deficient performance\nprejudiced the defendant.” State v. Bonds, 2023 UT 1, ¶ 35, 524 P.3d\n581 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). We are\nfree to reject a defendant’s claim under either prong of the Strickland\ntest because “failure to establish either prong . . . is fatal to an\nineffective assistance of counsel claim.” Honie v. State, 2014 UT 19,\n¶ 31, 342 P.3d 182. And the U.S. Supreme Court has instructed that\nwhere “it is easier to dispose of an ineffectiveness claim on the ground\nof lack of sufficient prejudice, . . . that course should be followed.”\nStrickland, 466 U.S. at 697. Because we conclude that Centeno’s\ndefense was not prejudiced by counsel’s alleged deficient\nperformance, we limit our analysis to the second prong.\n ¶ 65 When evaluating prejudice in the context of ineffective\nassistance, we “consider the totality of the evidence” before the jury\nand “ask if the defendant has met the burden of showing that the\ndecision reached would reasonably likely have been different” absent\ncounsel’s alleged error. Id. at 695–96. “A reasonable probability is a\nprobability sufficient to undermine confidence in the outcome” of the\nproceeding. Id. at 694.\n ¶ 66 We conclude that Centeno cannot demonstrate ineffective\nassistance of counsel because he has not shown that the jury’s verdict\n“would reasonably likely have been different” had either part of\nExhibit 19 been excluded from evidence or the jury room. See id. at\n696.\n A. Exhibit 19: The Van Footage\n ¶ 67 Centeno contends that the footage of A.C. in the van was\nprejudicial because her statement to Officer that Centeno was not in\n\n_____________________________________________________________\n 6 Centeno has not argued that his counsel was ineffective for not\n\nobjecting to the admission of the station segment on the basis that it\nwas not played for the jury.\n 15\n\f STATE v. CENTENO\n Opinion of the Court\n\nthe apartment was not “indic[ative] of innocence” and cast doubt on\nhis credibility. We are unpersuaded for several reasons.\n ¶ 68 First, the evidence was of minimal probative value. Officer\nasked A.C. if Centeno was still in the apartment and if A.C. could\nreach him. When it appeared that Centeno’s phone was not\nconnecting to the messenger app, A.C. assumed it meant he had left\nthe apartment. Before that, Mother had told Centeno that she needed\nto take A.C. and the children for the day without any suggestion that\nA.C. was going to report Centeno to the police. Thus, we doubt the\njury would view A.C.’s belief that Centeno had left the apartment as\nsuggestive of guilt.\n ¶ 69 Second, Centeno’s own admission of flight overshadowed\nany negative inference that the jury could have drawn from A.C.’s\nstatement to Officer. Centeno testified that, contrary to A.C.’s\nassumption, he had not left the apartment before police arrived.\nCenteno explained that when the police showed up at the apartment\ndoor, he would not open it, stating, “I mean, who wants to go to jail?\n. . . I know that’s what’s going to happen, you know.” Centeno also\ntestified that when he finally left the apartment ten to fifteen minutes\nlater, he ran from police when they shouted at him. Given this\ntestimony, the jury had no need to infer from A.C.’s statement that\nCenteno had fled due to a guilty conscience. Centeno admitted as\nmuch himself.\n ¶ 70 Third, and perhaps most importantly, the State’s case\nagainst Centeno was overwhelming. A.C. offered compelling\ntestimony of Centeno’s rape and assault, testimony that was\ncorroborated by photographs and several other witnesses who\ntestified to her overall condition and injuries the morning after.\nFurther, Centeno corroborated her account of the couple’s arguments,\nand he admitted—either in the police interview, at trial, or both—that\nhe hit and strangled A.C. Although Centeno denied raping A.C. and\nchoking her unconscious, his denials rang hollow given his initial\nassertions to Detective that he was intoxicated and could not\nremember what had happened the night before, his reaction when\nDetective told him it was legally possible to rape your wife, and his\nother inculpatory admissions. In other words, the jury did not need\nto infer guilt based on A.C.’s innocuous statement that she believed\nCenteno had left the apartment. Rather, the jury undoubtedly relied\non Centeno’s own admissions and other corroborative evidence of his\nguilt, leaving us no reason to believe that the verdict would have been\ndifferent had the jury not heard A.C. tell Officer that Centeno had left\nthe apartment. See Strickland, 466 U.S. at 696 (explaining that a verdict\n\n 16\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\n“only weakly supported by the record is more likely to have been\naffected by errors than one with overwhelming record support”).\nThus, Centeno’s claim of ineffective assistance of counsel based on\nExhibit 19’s van footage is unavailing.\n B. Exhibit 19: The Station Footage\n ¶ 71 Centeno contends that the footage of A.C.’s interview at the\npolice station was unfairly prejudicial because it showed Officer\nlending support to A.C. and showed A.C. “overwrought” with\nemotion. Centeno also argues that because the interview footage was\nnot played for the jury in open court, he was deprived of the ability\nto explain or comment on it. Centeno argues that, had the jury not\nseen this footage, it is reasonably likely that the jury’s verdict would\nhave been different. 7 Again, for several reasons, we disagree.\n ¶ 72 First, to the extent the footage showed Officer expressing\nsupport to A.C., we disagree with Centeno’s assertion that it was\n“gratuitous.” A.C. arrived at the police station with visible injuries on\nher face and neck. Officer could see that she had been injured—a fact\nnot in dispute—and thus he understandably tried to make her feel\ncomfortable as she made her report. The jury would have understood\nthat Officer’s comments about it taking strength to call the police was\nnot a comment on the veracity of A.C.’s specific accusations,\nparticularly where the interview had only just begun.\n ¶ 73 Second, we do not share Centeno’s view that the jury was\nswayed against him by seeing A.C. as “overwrought” and\n“anguished” in the footage. During the interview, A.C. appears\nremarkably controlled. Although she occasionally cried, she was\nfocused and responsive to Officer’s questions, and she described\nevents without losing her composure. Further, the jury already saw\nA.C. testify emotionally at trial, with the prosecutor twice asking her\nif she needed a break. Because the jury personally witnessed an\nequally, if not more, emotional A.C. at trial, we cannot agree that a\nreasonable probability exists that the jury’s verdict would have been\ndifferent had Exhibit 19’s station footage been excluded.\n ¶ 74 Centeno next contends he was uniquely prejudiced by the\nfact that the station footage was given to the jury despite it not having\nbeen played in open court. Specifically, he asserts this prejudiced him\nbecause he “had no opportunity to ‘explain or even comment [upon]’\nfootage played only during deliberations.” (Quoting State v. Midgett,\n\n_____________________________________________________________\n 7 Centeno assumes the jury watched the station footage during its\n\ndeliberations. For purposes of our analysis, we do the same.\n 17\n\f STATE v. CENTENO\n Opinion of the Court\n\n680 N.W.2d 288, 293 (S.D. 2004).) 8 But in making that assertion,\nCenteno does not identify a single comment or explanation he would\nhave made if the footage had been played during trial. That is not\nsurprising. After all, A.C.’s interview statements—assuming the jury\nwatched the footage—would not have been news to the jury.\n ¶ 75 If the jury had watched the video, it would have heard A.C.\ntersely tell Officer that Centeno hit her repeatedly and choked her\nthree times, that her face and neck were swollen, and that she had\nbeen throwing up. But A.C. testified to the same at trial, and in much\ngreater and more graphic detail. Further, Centeno generally did not\ndispute A.C.’s police station assertions. To the extent Centeno tried to\nexplain, he did so by testifying that the choking was part of\n“aggressive sex” and that A.C.’s injuries were incurred in a mutual\nfight she provoked, and by emphasizing testimony that A.C.’s bruises\ncould be the result of vomiting as opposed to strangulation. Thus, not\nonly was the station footage cumulative of the more vivid testimonial\nevidence, but Centeno has not shown there were any assertions in the\nunplayed footage that he did not confront.\n ¶ 76 Finally, in making his prejudice argument, Centeno has not\nshown that the station footage “added enough to the overall\nevidentiary picture already before the jury to impact the outcome of\nthe [trial].” See State v. Scott, 2020 UT 13, ¶ 45, 462 P.3d 350. As we\nhave already observed, the evidence against Centeno was\ncompelling. Centeno admitted—in his interview played for the jury\nand during his trial testimony—that he was guilty of assaulting A.C.\nand was responsible for her injuries. See supra ¶¶ 24, 33, 35, 37.\nFurther, Centeno’s admissions were corroborated by the testimony of\nA.C., Mother, Officer, Detective, and Nurse, as well as by\nphotographs of A.C.’s injuries. A.C. testified in compelling detail\nabout the abuse she suffered at the hands of Centeno, and A.C. did\n_____________________________________________________________\n 8 Centeno’s reliance on Midgett is inapposite, as that case is neither\n\ncontrolling on this court nor persuasive under the circumstances. See\ngenerally State v. Midgett, 680 N.W.2d 288 (S.D. 2004). In Midgett, the\nappellate court analyzed whether the trial court “erred in allowing the\njury, during its deliberations, to view a videotaped interview of [the\ndefendant] that was neither played during trial nor admitted into\nevidence.” Id. at 290 (emphasis added). The appellate court determined\nthat “[a]llowing the jury to consider . . . non-admitted evidence was\nprejudicial error that require[d] reversal.” Id. at 293 (emphasis added).\nThat holding is unpersuasive here both because Exhibit 19 was\nadmitted into evidence and because Centeno’s argument comes to us\nin an ineffective assistance posture.\n 18\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\nnot have the same credibility challenges Centeno did. Centeno had\nadmitted to fleeing from police, he suddenly remembered details of\nthe night in question after originally telling Detective he could not\nrecall what had happened, his police interview and his trial testimony\nlacked consistency, and his claims of consensual sex and choking\nwere difficult to square with A.C.’s injuries and his admissions of\nassault. In sum, given the overwhelming evidence against Centeno,\nno reasonable probability exists that, absent admission of Exhibit 19’s\nfootage of A.C.’s station interview, the jury “would have had a\nreasonable doubt respecting guilt.” See Strickland, 466 U.S. at 695.\nAccordingly, Centeno’s ineffective assistance claim based on the\nstation footage of Exhibit 19 is also unavailing. 9\n III. MISTRIAL AND NEW TRIAL MOTIONS\n ¶ 77 Centeno challenges the district court’s decisions denying his\nmotions for a mistrial and a new trial. First, Centeno contends the\ndistrict court abused its discretion when it denied his mistrial motion,\narguing that Child’s “non-verbal breakdown” left the jurors “to\nspeculate as to” the reason for the breakdown, which Centeno claims\n“could only be interpreted against him.” Second, Centeno contends\nthat the district court erred when it denied his motion for a new trial\nbecause, in Centeno’s view, his rights under the Confrontation Clause\nof the Sixth Amendment were violated. Specifically, Centeno claims\n_____________________________________________________________\n 9 Relatedly, Centeno asserts that “the jury’s possessing in\ndeliberations evidence not played in open court” is “reversible\nstructural error.” For that proposition, Centeno cites United States v.\nNoushfar, 78 F.3d 1442 (9th Cir. 1996), amended by 140 F.3d 1244 (9th\nCir. 1998) (mem.). In Noushfar, the Ninth Circuit Court of Appeals\ndetermined that “[s]ending unplayed tapes to the jury room” is “a\nstructural error requiring automatic reversal.” Id. at 1445. But Noushfar\nis not binding on this court. And regardless, it is inapposite. Noushfar\ninvolved a preserved error, not an ineffective assistance of counsel\nclaim. See id. at 1444. Although structural error analysis generally\npresumes prejudice, see State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543, a\nshowing of prejudice is still required when structural error is asserted\nthrough the framework of ineffective assistance, see Weaver v.\nMassachusetts, 582 U.S. 286, 300–03 (2017); see also State v. Garcia, 2017\nUT 53, ¶ 36, 424 P.3d 171 (“[A]lthough a violation of the defendant’s\nright to a public trial is a structural error, where the unpreserved issue\nwas raised as ineffective assistance of counsel, Strickland prejudice is\nnot shown automatically.”). Centeno has not met his “burden to show\nthat he was prejudiced by his counsel’s performance.” See Garcia, 2017\nUT 53, ¶ 37; see also supra ¶¶ 71–76.\n 19\n\f STATE v. CENTENO\n Opinion of the Court\n\nhe was deprived of the opportunity to cross-examine Child when the\nState elected not to resume its examination of her. Because Centeno\nhas not shown error, both arguments fall short.\n A. The Mistrial Motion\n ¶ 78 At trial, the State called eight-year-old Child to testify.\nWhen she was asked if she remembered the last night Centeno was at\nher apartment, Child became emotionally distraught. The court then\ngranted the State’s request for a recess to allow Child to compose\nherself. However, during the recess, the State decided not to resume\nthe examination and the defense chose not to cross-examine her.\nOutside the jury’s presence, the defense conceded that it “[c]ertainly”\ndid not want the State to resume its examination, but it still objected\nto the “situation” as “unfairly prejudicial” and moved for a mistrial.\nSpecifically, the defense argued that the jury was left to “wild[ly]\nspeculat[e]” about the reason for her breakdown. The court denied\nthe motion and, upon the jury’s return, instructed it to disregard the\nfact that Child took the witness stand but would not return to testify.\nSee supra ¶ 28.\n ¶ 79 The district court “has broad discretion in determining\nwhether a mistrial should be declared.” State v. Workman, 635 P.2d 49,\n53 (Utah 1981). A court may grant a mistrial “where the circumstances\nare such as to reasonably indicate that a fair trial cannot be had and\nthat a mistrial is necessary in order to avoid injustice.” State v. Wach,\n2001 UT 35, ¶ 45, 24 P.3d 948 (cleaned up).\n ¶ 80 But “the prerogative of a reviewing court is much more\nlimited.” Id. “Because a district judge is in an advantaged position to\ndetermine the impact of courtroom events on the total proceedings,”\nwe will not reverse the court’s denial of a mistrial motion “unless it is\nplainly wrong in that the incident so likely influenced the jury that\nthe defendant cannot be said to have had a fair trial.” State v. Allen,\n2005 UT 11, ¶ 39, 108 P.3d 730 (cleaned up); see also State v. Butterfield,\n2001 UT 59, ¶ 47, 27 P.3d 1133 (explaining that an appellant\nchallenging the denial of a mistrial must show unfair prejudice, such\nthat “the verdict was substantially influenced by the challenged\ntestimony” (cleaned up)).\n ¶ 81 We have no basis to reverse the district court’s denial of\nCenteno’s mistrial motion. He has not shown that Child’s breakdown\non the witness stand “so likely influenced the jury that [he] cannot be\nsaid to have had a fair trial.” See Allen, 2005 UT 11, ¶ 39 (cleaned up).\nNot only was the jury instructed not to draw any inference from the\nfact that the prosecution elected not to proceed with its examination\nof Child given her “emotional state,” the reason for her reaction was\n 20\n\f Cite as: 2023 UT 22\n Opinion of the Court\n\nnot apparent. Child, who was only eight years old, might have been\nafraid of testifying in a courtroom. After all, she struggled to answer\neven the State’s preliminary questions. Or, Child might have reacted\nemotionally because she missed Centeno or because she was\nuncomfortable recalling the events of the night in question. But\nregardless of the reason, it was a passing moment in a four-day trial,\nand little could be drawn from it. And, if Centeno was concerned\nabout the jury speculating as to the reason for the breakdown, he\ncould have called Child back to the stand for cross-examination. He\nchose, however, not to do so. Thus, any possible influence Child’s\nreaction could have had on the jury was not unfair. Accordingly, we\naffirm the court’s denial of Centeno’s mistrial motion.\n B. The New Trial Motion\n ¶ 82 After the jury returned its verdict, the defense again raised\nthe issue of Child’s emotional breakdown on the witness stand, this\ntime moving for a new trial under rule 24(a) of the Utah Rules of\nCriminal Procedure. Centeno argued that a new trial was warranted\nbecause he was “completely deprived of the ability to confront one of\nthe witnesses against him.” The court denied the motion, reasoning\nthat Centeno “made no attempt to call the child as a witness.”\n ¶ 83 A district court may grant a new trial “in the interest of\njustice if there is any error or impropriety which had a substantial\nadverse effect upon the rights of a party.” UTAH R. CRIM. P. 24(a).\nCenteno’s claim for a new trial fails because the premise for his\nclaim—an alleged violation of his Sixth Amendment right to\nconfrontation—is flawed.\n ¶ 84 “The Sixth Amendment of the United States Constitution,\nwhich applies to both federal and state criminal prosecutions, grants\nthe accused the right to be confronted with the witnesses against\nhim.” State v. Timmerman, 2009 UT 58, ¶ 9, 218 P.3d 590 (cleaned up).\nThat right to confrontation guarantees a defendant the opportunity to\ncross-examine a witness but it does not guarantee that the\nopportunity be exercised. State v. Pecht, 2002 UT 41, ¶ 39, 48 P.3d 931.\nIn other words, the confrontation clause is not violated simply\nbecause a defendant elects not to question a witness who appears for\ncross-examination at trial. See id.\n ¶ 85 Although the State elected not to resume its examination\nafter Child became emotionally distraught, Centeno had every\nopportunity to call Child back to the stand for cross-examination and\nelected not to. Under these circumstances, Centeno’s confrontation\n\n\n\n 21\n\f STATE v. CENTENO\n Opinion of the Court\n\nrights were not infringed. Thus, the district court correctly denied\nCenteno’s motion for a new trial on this ground. 10\n CONCLUSION\n ¶ 86 We conclude the district court did not err in overruling\nCenteno’s undue emphasis objection and sending Exhibit 27—his\npolice interview footage—back with the jury. Because Centeno did\nnot preserve his additional theories challenging Exhibit 27, we do not\naddress them. As for Centeno’s challenge based on ineffective\nassistance of counsel arising out of the admission of Exhibit 19—the\nfootage of A.C.’s interactions with Officer—it fails for lack of\nprejudice. Finally, we conclude the district court did not err in\ndenying Centeno’s motions for a mistrial and a new trial arising out\nof Child’s breakdown on the witness stand. Accordingly, we affirm\nCenteno’s convictions.\n\n\n\n\n_____________________________________________________________\n 10 Centeno also invokes the cumulative error doctrine, asserting\n\nthat the alleged errors, when “considered together,” require reversal.\n“Under the cumulative error doctrine, we will reverse only if the\ncumulative effect of the several errors undermines our confidence that\na fair trial was had.” State v. Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (cleaned\nup). “But if the claims are found on appeal to not constitute error, . . .\nthe doctrine will not be applied.” State v. Maestas, 2012 UT 46, ¶ 363,\n299 P.3d 892 (cleaned up). Because Centeno has not shown any errors\nto cumulate, the doctrine is inapplicable.\n 22\n\f\n\nNow, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. 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[SEGMENT 1]
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION], Slip Opinion No. 2024-Ohio-3131.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-3131
[THE STATE EX REL .] [CITATION], PROS. ATTY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as [CITATION], Slip Opinion No.
-Ohio-3131.]
Mandamus—Public-records requests—Relator neither contends that any
documents he requested remain outstanding nor challenges validity of
redactions made to them—Determination of statutory damages, court costs,
and sanctions deferred pending review in camera of original documents that
prosecutor’s office received from relator—Writ denied as moot.
(No. 2023-1354—Submitted July 9, 2024—Decided August 20, 2024.)
IN MANDAMUS.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ. SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Relator, Kimani E. Ware, requests a writ of mandamus ordering the
production of records responsive to two public-records requests he claims to have
sent to respondent, Portage County Prosecuting Attorney Victor V. Vigluicci (“the
prosecutor”) in June and July 2022. Ware also seeks awards of statutory damages
and court costs. We previously granted an alternative writ and ordered the parties
to address in their briefing and evidence whether Ware should be sanctioned under
R.C. 2323.51, Civ.R. 11, and/or S.Ct.Prac.R. 4.03(B). [CITATION].
{¶ 2} We deny the writ as moot because Ware does not dispute that the
prosecutor produced documents responsive to Ware’s alleged public-records
requests after being served with the summons and complaint in this action.
Regarding the issues of court costs, statutory damages, and sanctions, we defer our
ruling pending the prosecutor’s submission of additional evidence. Specifically,
we order the prosecutor to file the original documents received by certified mail
from Ware in the envelopes postmarked June 22 and July 5, 2022. For the reasons
explained below, a review of the original documents received by the prosecutor will
resolve a factual dispute over whether Ware sent the public-records requests at issue
by certified mail.
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 3} Ware is an inmate at Richland Correctional Institution. He alleges
that he sent two public-records requests to the prosecutor by certified mail in June
and July 2022. Ware claims that he requested a copy of the personnel file of
Timothy J. Piero in the June mailing and that he requested copies of the records-
retention schedule of the prosecutor’s office and the prosecutor’s oath of office in
the July mailing. Ware has submitted copies of the envelopes in which he allegedly
sent his public-records requests, which are postmarked June 22 and July 5, 2022,
respectively. According to Ware, certified-mail receipts show that the prosecutor’s
office received both requests.
January Term, 2024
{¶ 4} Ware commenced this action in October 2023, alleging that the
prosecutor had violated his duty under R.C. 149.43(B)(1) to provide copies of the
requested public records within a reasonable time. Ware sought a writ of
mandamus compelling the prosecutor to provide records responsive to his requests,
and he requested statutory damages and court costs.
{¶ 5} The prosecutor filed an answer and a motion for judgment on the
pleadings. In his motion, the prosecutor asserted that Ware had commenced a
frivolous action that was premised on two nonexistent public-records requests.
Though admitting that his office had received two certified mailings from Ware in
envelopes with tracking numbers that matched the copies attached to Ware’s
complaint, the prosecutor contended that neither certified mailing contained a
public-records request. Rather, the prosecutor averred, the first certified mailing
contained only a one-page judgment entry issued in an unrelated case from this
court and the second certified mailing contained only a one-page document filed in
the same unrelated case. Attached to the prosecutor’s answer were the documents
that the prosecutor’s office claimed to have received in the certified mailings that
allegedly contained public-records requests.
{¶ 6} The prosecutor further asserted in his motion that his office had no
record of receiving the public-records requests at issue here until his office received
the summons and complaint in this action. The prosecutor contended that he sent
Ware the requested records on November 3, 2023—four days after being served
with the summons and complaint. The prosecutor therefore argued that the
production of the requested records rendered Ware’s action moot and that Ware
was not entitled to statutory damages, because no public-records requests were ever
delivered by certified mail. Finally, the prosecutor contended that Ware had
displayed a “pattern of conduct where [Ware] sends certified mailings to public
offices that do not contain a public records request,” only to later claim falsely that
SUPREME COURT OF OHIO
the certified mailings contained public-records requests. The prosecutor argued
that Ware’s actions warranted a finding of frivolous conduct.
{¶ 7} We denied the prosecutor’s motion for judgment on the pleadings and
granted an alternative writ. [CITATION]. In addition to setting a schedule for
the submission of evidence and merit briefing, we ordered the parties to address in
their briefs, and permitted them to present evidence as to, whether Ware should be
sanctioned under R.C. 2323.51, Civ.R. 11, and/or S.Ct.Prac.R. 4.03(B). [CITATION].
{¶ 8} In his evidence, Ware submitted an affidavit addressing the
prosecutor’s contention that he did not send public-records requests at all.
According to Ware, his first public-records request was “a two sided paper”: on one
side was the judgment entry issued in the unrelated case and on the other was his
handwritten public-records request. Likewise, Ware testifies that his second
public-records request is also on a two-sided paper, with one side being the
document filed in the unrelated case and the public-records request “written on the
back.” Ware accuses the prosecutor of copying only one side of each document for
filing in this case.
{¶ 9} The prosecutor disputes Ware’s testimony. Assistant Prosecuting
Attorney Chrisopher Meduri and the prosecutor’s chief administrator, Lori Heiney,
have submitted affidavits averring that the two certified mailings from Ware
contained only one-page documents from the unrelated case and that no public-
records request was written on the backside of either document. Heiney also
testifies that the original papers received from Ware are in the custody of the
prosecutor’s office.
ANALYSIS
Ware’s mandamus claim
{¶ 10} Mandamus is an appropriate remedy to compel compliance with R.C.
149.43, Ohio’s Public Records Act. R.C. 149.43(C)(1)(b). But providing the
January Term, 2024
requested records to the relator moots a public-records mandamus claim. [CITATION]. In this case, it is not disputed that the
prosecutor provided the records responsive to Ware’s requests in November 2023.
{¶ 11} Ware does not contend that any documents requested remain
outstanding. Nor does Ware challenge the validity of certain redactions made to the
records that were produced. We therefore deny the writ of mandamus as moot.
Statutory damages
{¶ 12} Ware seeks statutory damages for the prosecutor’s alleged failure to
comply with the Public Records Act. When a respondent has taken an unreasonable
amount of time to produce requested records, the relator may be entitled to an award
of statutory damages even if the mandamus claim is moot. [CITATION]. R.C. 149.43(C)(2) allows a
relator to recover $100 for each business day during which a respondent failed to
comply with an obligation arising under R.C. 149.43(B), beginning on the date of
commencement of the public-records action and up to a maximum of $1,000. In this
case, Ware contends that he is entitled to statutory damages because the prosecutor
did not respond to his public-records requests until after Ware commenced this
action.
{¶ 13} To be eligible for statutory damages, Ware must prove by clear and
convincing evidence that he delivered his public-records requests to the prosecutor’s
office “by hand delivery, electronic submission, or certified mail,” R.C.
149.43(C)(2); see also [CITATION].
Ware alleges that he sent to the prosecutor’s office by certified mail separate public-
records requests in June and July 2022. As evidence, Ware has submitted certified-
mail tracking printouts, which purportedly show that the prosecutor’s office received
Ware’s certified mailings on June 24 and July 7, 2022, respectively. The prosecutor
disputes Ware’s claim, contending that his office did not actually receive a public-
records request from Ware on either date and that his office first learned of Ware’s
[SEGMENT 2]
SUPREME COURT OF OHIO
requests when it was served with the summons and complaint in this original action
in October 2023.
{¶ 14} According to the prosecutor, Ware’s entire action here is a sham,
premised on public-records requests that he never sent to the prosecutor’s office.
Regarding Ware’s certified mailing postmarked June 22, 2022, the prosecutor offers
sworn testimony from his chief administrator, Heiney, that the mailing contained
only a one-page judgment entry issued by this court in the unrelated case. And
contrary to Ware’s assertion, Heiney also testifies that “there is no writing of any
kind on the ‘backside’ of the original single one page document, which was kept by
and is in the custody of the Portage County Prosecutor’s Office.”
{¶ 15} Similarly, regarding Ware’s certified mailing postmarked July 5,
2022, Heiney avers that the mailing contained only a copy of a document filed in the
unrelated case. Heiney also testifies that “there is no writing of any kind on the
‘backside’ of the original single one page document, which was kept by and is in the
custody of the Portage County Prosecutor’s Office.” Assistant Prosecuting Attorney
Christopher Meduri corroborates Heiney’s testimony, testifying that neither of the
certified mailings from Ware contained a public-records request written on the
backside of the documents found inside the certified-mail envelopes.
{¶ 16} The prosecutor argues that this case is similar to other public-records
cases in which Ware sent random documents to public offices, obtained certified-
mail receipts, and later claimed that he had sent requests for public records that the
public office failed to respond to. To be sure, this case is not the first time that a
public office has suggested that Ware is running a public-records scam. See, e.g.,
[CITATION], ¶ 12-13 (noting evidence that Ware
sent miscellaneous documents to public offices that do not require a response,
obtained certified-mail receipts, and later claimed that he had sent a request for public
records); [CITATION], ¶ 48 (lead
opinion) (noting that the evidence before the court “plausibly supports the allegations
January Term, 2024
that Ware routinely lied in affidavits and court filings regarding whether he had sent
public-records requests by certified mail”); [CITATION] (determining that Ware had not sent the alleged public-
records request and that a hearing would be scheduled on a motion for sanctions
against Ware); [CITATION] (noting evidence of Ware’s scheme and concluding that he had never sent the alleged
public-records requests).
{¶ 17} In previous cases in which Ware claimed to have sent a public-records
request by certified mail but the public office denied having received it, we simply
denied statutory damages, without resolving the issue whether Ware had engaged in
a scam. See [CITATION]. This is because “when the evidence on the method-of-
delivery of a public-records request consists of contradictory affidavits or is
inconclusive, the requester has not satisfied his burden under R.C. 149.43(C)(2),”
[CITATION]; see also [CITATION].
{¶ 18} In this case, a different approach is appropriate. The prosecutor does
not dispute that his office received documents by certified mail from Ware that were
postmarked June 22 and July 5, 2022; indeed, copies of the envelopes submitted by
the prosecutor as evidence are identical to the copies that Ware has submitted as
evidence. The prosecutor contends, however, that Ware is lying about what those
envelopes contained. Heiney—who opened the certified mailings from Ware—
testifies that “there is no writing of any kind” on the backside of either piece of paper
mailed to the prosecutor’s office, directly refuting Ware’s claim that he had
handwritten a public-records request on the back of each piece of paper that the
prosecutor received. Heiney also testifies that the prosecutor’s office has retained the
original documents that Ware transmitted in the certified-mail envelopes postmarked
June 22 and July 5, 2022.
SUPREME COURT OF OHIO
{¶ 19} Reviewing the original documents that the prosecutor’s office
received will definitively show whether Ware is committing a fraud on this court.
See [CITATION] (referring another of Ware’s
public-records cases to a master commissioner for a full evidentiary hearing to
determine whether “Ware is in fact engaging in fraud” and, if so, whether sanctions
are appropriate). We therefore order the prosecutor to file the original documents
received from Ware in the certified-mail envelopes postmarked June 22 and July 5,
2022, for our in camera review. We defer the determination of statutory damages
until we have reviewed the original documents submitted by the prosecutor’s office.
See [CITATION] (ordering the originals and
seven unredacted copies of the records at issue to be filed under seal for in camera
review and deferring determination of a privilege issue pending in camera review
of the records).
Court costs and sanctions
{¶ 20} In addition to statutory damages, Ware seeks an award of court costs
under R.C. 149.43(C)(3)(b)(iii), which applies when the public office or person
responsible for the public records “acted in bad faith” by voluntarily making public
records available for the first time after the relator has commenced a mandamus
action. The prosecutor contends that Ware is not entitled to court costs for the same
reason he is not entitled to statutory damages—i.e., because Ware did not send a
public-records request by certified mail at all. For the same reasons explained
above, we defer consideration of court costs until we have reviewed the original
documents the prosecutor received from Ware by certified mail.
{¶ 21} Similarly, we defer the determination of whether Ware should be
sanctioned under R.C. 2323.51, Civ.R. 11, and/or S.Ct.Prac.R. 4.03(B). If a review
of the original documents received by the prosecutor’s office shows that Ware is,
in fact, engaging in fraud, it will provide a basis for this court “to impose sanctions
January Term, 2024
and take appropriate measures to protect the integrity of our judicial proceedings,”
[CITATION] at ¶ 9.
CONCLUSION
{¶ 22} For the foregoing reasons, we deny the writ as moot and defer our
determination of statutory damages, court costs, and sanctions for Ware’s alleged
frivolous conduct until we have reviewed in camera the original documents that the
prosecutor’s office received from Ware in the certified-mail envelopes postmarked
June 22 and July 5, 2022. We order the prosecutor’s office to file those original
documents in this court within 14 days of this decision for in camera review.
Writ denied as moot.
__________________
Kimani E. Ware, pro se.
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Chrisopher
J. Meduri, Assistant Prosecuting Attorney, for respondent.
__________________
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION].]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-2827
THE STATE EX REL. MOBLEY v. BATES, PROS. ATTY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as [CITATION].]
Mandamus—Public-records requests—Because public-records custodian provided
requested records, offered to provide records upon prepayment of copying
costs, or averred that requested records do not exist, public office satisfied
its obligations under R.C. 149.43—Requester failed to prove by clear and
convincing evidence that he delivered public-records requests by certified
mail—Writ, statutory damages, and court costs denied.
(No. 2023-1594—Submitted May 7, 2024—Decided July 30, 2024.)
IN MANDAMUS.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ. SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Relator, Alphonso Mobley Jr., filed an original action in mandamus
against respondent, Lucas County Prosecuting Attorney Julia Bates (“the
prosecutor” or “the prosecutor’s office”). Mobley seeks the production of public
records and awards of statutory damages and court costs. We deny the writ and
decline to award Mobley statutory damages or court costs.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Mobley alleges that on October 30, 2023, the prosecutor received a
public-records request that Mobley had sent to the prosecutor by certified mail. The
record does not contain a copy of the request, but Mobley states that he sought in
the request paper copies of the prosecutor’s (1) “[r]ecords retention schedule,”
(2) “[c]ertified statements for years 2016-2021 pursuant to R.C. 309.16,” and
(3) “[c]ashbook[s] for years 2016-2021 pursuant to R.C. 2335.25.” Mobley did not
receive a response from the prosecutor regarding his request prior to his filing this
mandamus action.
{¶ 3} Mobley filed this mandamus action on December 14, 2023, and the
prosecutor was served with the complaint on December 19. On January 5, 2024,
the prosecutor’s office sent Mobley a letter. In that letter, the prosecutor’s office
stated that it had no record of having received Mobley’s request but that it was
providing a response to the request described in Mobley’s complaint. In response
to Mobley’s request for the prosecutor’s office’s “[r]ecords retention schedule,” the
prosecutor’s office provided Mobley with a copy of the office’s records-retention
schedule. In response to Mobley’s request for certified statements, the prosecutor’s
office stated that the records responsive to that request might total nearly 10,000
pages and that a paper copy of the records would cost approximately $1,000. The
prosecutor’s office asked Mobley to inform it as to whether he still wanted paper
copies of those records. And in response to Mobley’s request for “[c]ashbook[s],”
the prosecutor’s office stated that it did not have cashbooks for the years requested.
[SEGMENT 3]
January Term, 2024
{¶ 4} The prosecutor filed an answer to Mobley’s mandamus complaint,
and this court issued an alternative writ allowing the parties to submit evidence and
ordering them to submit briefs, [CITATION]. As part of its evidence, the
prosecutor’s office submitted an affidavit of an assistant prosecutor. The assistant
prosecutor avers that all public-records requests made to the prosecutor’s office are
forwarded to him. He avers that he never received the public-records request at
issue in this case and that the prosecutor’s office has no record of having received
it. Mobley submitted as evidence a certified-mail return receipt for a mailing
addressed to the prosecutor’s office that was delivered and signed for on
October 30, 2023. The signature of the person who accepted the delivery is
illegible. Mobley avers that this receipt was for the mailing of his public-records
request. Mobley has not submitted a copy of the request or an envelope with a
tracking number matching the tracking number on the receipt.
II. LEGAL ANALYSIS
A. Writ of mandamus
{¶ 5} “[U]pon request by any person, a public office or person responsible
for public records shall make copies of the requested public record available to the
requester at cost and within a reasonable period of time.” R.C. 149.43(B)(1).
Mandamus is an appropriate remedy to compel compliance with R.C. 149.43(B).
R.C. 149.43(C)(1)(b). To be entitled to a writ of mandamus, Mobley must prove,
by clear and convincing evidence, that he has a clear legal right to the relief sought
and that the prosecutor has a clear legal duty to provide that relief. [CITATION], ¶ 10.
{¶ 6} Mobley argues that the prosecutor has not properly responded to his
requests for certified statements and cashbooks and requests a writ of mandamus
ordering the production of those records. We deny the writ. The prosecutor’s office
avers that it never received Mobley’s public-records request. But even if the
SUPREME COURT OF OHIO
prosecutor received the request and failed to respond to it by the time Mobley filed
this action, the prosecutor has since properly responded to the request.
{¶ 7} Mobley states that in his request for certified statements, he requested
“[c]ertified statements for years 2016-2021 pursuant to R.C. 309.16.” Former
R.C. 309.16, Am.Sub.S.B. No. 98, 138 Ohio Laws, Part I, 683, which has been
repealed, required prosecutors to file annual statements regarding criminal
prosecutions with the applicable board of county commissioners and, with respect
to arson offenses, with the state fire marshal. In its January 5, 2024 letter to Mobley
regarding his public-records request, the prosecutor’s office told Mobley that paper
copies of the statements to the board of county commissioners would cost
approximately $1,000 and asked Mobley to advise the office whether he wanted to
proceed with the request. Mobley did not respond to that instruction.
{¶ 8} A public office may charge for copies of public records at cost. See
R.C. 149.43(B)(6). In his brief, Mobley suggests that he requested statements sent
to the state fire marshal in addition to statements sent to the board of county
commissioners and that the prosecutor did not provide the statements that were sent
to the state fire marshal or an estimate of the cost to provide them. The prosecutor
clarifies in her brief, however, that the same statements were sent to both the board
of county commissioners and the state fire marshal. Because the prosecutor
properly required payment of the copying costs before providing the statements, we
deny the writ as to the request for certified statements.
{¶ 9} Mobley states that in his request for cashbooks, he sought
“[c]ashbook[s] for years 2016-2021 pursuant to R.C. 2335.25.” R.C. 2335.25
requires prosecutors to keep a cashbook containing a record of all moneys that they
collect or receive and that the cashbook “shall be a public record of the office.” The
prosecutor’s office told Mobley—and it avers here—that it does not have any
cashbooks or other records responsive to the request. Mobley argues that the
prosecutor’s office’s assertion that it does not have responsive records is
January Term, 2024
contradicted by the office’s records-retention schedule, which contains a records
schedule titled “Cash Books & Journals” and similarly titled schedules. But the
existence of a particular records schedule at a public office does not necessarily
mean that the public office has records encompassed by that schedule. And here,
the prosecutor denies having any records responsive to Mobley’s request for
cashbooks. Mobley has the burden to prove, by clear and convincing evidence, that
the records he requested exist. See [CITATION], ¶ 8. He has not done so, and the prosecutor has “no duty to create or provide access
to nonexistent records,” [CITATION], ¶ 15.
Therefore, we deny the writ as to the request for cashbooks.
{¶ 10} Because the prosecutor has now either provided the requested
records, offered to provide Mobley with the records upon prepayment of the
copying costs, or averred that the records do not exist, we deny the writ.
B. Statutory damages and court costs
{¶ 11} “Statutory damages shall be awarded if a requester of public records
transmits a written request to a public office by hand delivery, electronic
submission, or certified mail and the public office or person responsible for public
records fails to comply with its obligations under R.C. 149.43(B).” [CITATION], ¶ 13; accord R.C. 149.43(C)(2).
{¶ 12} Mobley argues that he is entitled to statutory damages because the
prosecutor did not respond to his public-records request within a reasonable time.
A public office shall provide copies of a requested public record “within a
reasonable period of time.” R.C. 149.43(B)(1). Mobley alleges that the prosecutor
received his public-records request on October 30, 2023, and the prosecutor did not
respond to the request until January 5, 2024—67 days later.
{¶ 13} The prosecutor’s office, however, avers that it never received the
public-records request. As evidence that he had sent the request to the prosecutor’s
office by certified mail, Mobley submitted a copy of a certified-mail return receipt
```plaintext
SUPREME COURT OF OHIO
that may have been signed for by someone from the prosecutor’s office on
October 30 and his own affidavit averring that he sent the request by certified mail.
Mobley, however, did not submit a copy of the public-records request. He also did
not submit a copy of the envelope that the records request was mailed in. Because
he did not submit a copy of the envelope, we cannot confirm that the certified-mail
return receipt contains the same tracking number as that on the envelope.
{¶ 14} “[W]hen the evidence on the method-of-delivery of a public-records
request consists of contradictory affidavits or is inconclusive, the requester has not
satisfied his burden under R.C. 149.43(C)(2).” [CITATION],
¶ 22; see also [CITATION], ¶ 32 (holding that when the evidence concerning delivery of a public-records
request is evenly balanced, the requester has not satisfied the heightened burden of
proof necessary for an award of statutory damages). Here, Mobley submitted as
evidence a certified-mail return receipt. But other than his own affidavit, which the
prosecutor disputes, Mobley has submitted no evidence linking the receipt to a
public-records request.
{¶ 15} This court recently addressed a similar situation in [CITATION]. In that
case, the relator averred that he had sent a public-records request by certified mail
and submitted a certified-mail return receipt as evidence, but the respondent denied
ever receiving the request. [CITATION] at ¶ 12, 16-17. This court determined that the
relator had not proved by clear and convincing evidence that he had delivered the
request by certified mail. Id. at ¶ 22. To be sure, in [CITATION], this court cited
another case in which a public office had denied receiving public-records requests
from the relator in [CITATION]. Id. at ¶ 21, citing [CITATION] at ¶ 32-34. But in
[CITATION], the relator also submitted as evidence a copy of the public-records
request, see id. at ¶ 32 (Kennedy, C.J., dissenting), which Mobley has not done
here. We conclude that Mobley, having provided even less evidence than that
provided by the relator in [CITATION], has not proved by clear and convincing
[SEGMENT 4]
``` January Term, 2024
evidence that he transmitted his public-records request by certified mail. And
because he has not done so, we decline to award statutory damages.
{¶ 16} Mobley also requests an award of court costs. Court costs shall be
awarded if “the court orders the public office or the person responsible for the
public record to comply with [R.C. 149.43(B)].” R.C. 149.43(C)(3)(a)(i). Because
we deny the writ, we also decline to award court costs. In addition, Mobley filed
an affidavit of indigency, so he has not incurred court costs.
III. CONCLUSION
{¶ 17} Because the prosecutor’s office has now either provided the records
requested by Mobley, offered to provide Mobley with the records upon prepayment
of the copying costs, or averred that the records do not exist, we deny Mobley’s
request for a writ of mandamus. We also decline to award Mobley statutory
damages or court costs.
Writ denied.
_________________
Alphonso Mobley Jr., pro se.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell,
Assistant Prosecuting Attorney, for respondent.
_________________
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION].]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-2746
THE STATE EX REL. WARE, APPELLANT, v. STONE, PROS. ATTY., APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as [CITATION].]
Mandamus—Public-records requests—R.C. 149.43—Generally, in an original
action seeking an extraordinary writ, the court may issue an alternative writ
and a scheduling order that control for the action and supersede conflicting
rules of civil procedure—Because the prosecutor produced all the records
responsive to the public-records request, the request for a writ of mandamus
was moot—Court of appeals properly declined to award statutory damages
and court costs—Court of appeals’ judgment affirmed.
(No. 2023-1343—Submitted May 7, 2024—Decided July 23, 2024.)
APPEAL from the Court of Appeals for Stark County,
No. 2023CA00066, 2023-Ohio-3865.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER, ```plaintext
SUPREME COURT OF OHIO
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.
Per Curiam.
{¶ 1} Appellant, Kimani E. Ware, filed a complaint for a writ of mandamus
in the Fifth District Court of Appeals, seeking a writ ordering appellee, Stark
County Prosecuting Attorney Kyle Stone (“the prosecutor” or “the prosecutor’s
office”), to produce records in response to a public-records request. Ware also
requested awards of statutory damages and court costs. The court of appeals
granted the prosecutor’s motion for summary judgment, denied the writ as moot,
and denied Ware’s request for awards of statutory damages and court costs. Ware
appeals that judgment. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Ware is currently incarcerated. He alleged in his mandamus
complaint that in April 2022, he sent the prosecutor a public-records request by
certified mail, requesting copies of the prosecutor’s office’s roster of current
employees and annual budget reports for January 2019 through January 2022. He
included with his complaint a document stating the tracking number for the certified
mail.
{¶ 3} The prosecutor denied receiving the public-records request. Based on
its previous interactions with Ware, the prosecutor’s office had adopted special
procedures for opening mail from Ware. An assistant prosecutor averred that in
April 2022, he and a colleague opened a certified-mail envelope sent by Ware that
reflected the same tracking number Ware provided with his mandamus complaint.
The assistant prosecutor averred that the envelope did not contain a public-records
request but rather a court filing from another case. The assistant prosecutor took a
picture of the envelope and the filing.
{¶ 4} On July 3, 2023—over a year after he sent the prosecutor the certified
mail at issue—Ware filed a complaint for a writ of mandamus in the court of
appeals. He sought a writ ordering the prosecutor to provide the requested records
``` ```plaintext
January Term, 2024
and awards of statutory damages and court costs. On July 13, after the prosecutor
was served with the complaint, he provided Ware with the requested records.
{¶ 5} The court of appeals granted an alternative writ and set a schedule for
the filing of evidence and briefs. Both parties moved for summary judgment. The
court of appeals granted the prosecutor’s motion for summary judgment, denied
Ware’s motion for summary judgment, denied the writ as moot, and denied Ware’s
request for awards of statutory damages and court costs. [CITATION].
{¶ 6} Ware appeals to this court as of right. He challenges the procedure
employed by the court of appeals and aspects of its decision in favor of the
prosecutor. He argues that the court of appeals should have awarded him statutory
damages and court costs, but he does not dispute that he has received all the
documents that are responsive to his public-records request.
II. LEGAL ANALYSIS
A. The court of appeals properly followed its case schedule
{¶ 7} Ware argues that the court of appeals’ judgment should be reversed
because the court did not allow him the specified time under the Ohio Rules of Civil
Procedure to respond to the prosecutor’s motion for summary judgment.
{¶ 8} After the prosecutor filed an answer to Ware’s mandamus complaint,
the court of appeals granted an alternative writ and set a schedule for the filing of
evidence and briefs. The scheduling entry required Ware to file a brief within 14
days of the filing of the evidence, required the prosecutor to file a brief within 21
days of the filing of Ware’s brief, and permitted Ware to file a reply brief within 10
days of the filing of the prosecutor’s brief. The entry provided, “The briefs should
. . . be a memorandum in support of or against the claim(s) or defense(s).”
{¶ 9} Both parties titled their briefs “Motion for Summary Judgment,” but
in substance, the motions were memoranda in support of or against the requested
writ. Under the court of appeals’ scheduling entry, Ware had ten days to file a reply
``` SUPREME COURT OF OHIO
to the prosecutor’s brief. He did not do so, and the court of appeals issued its
decision after the ten-day deadline expired.
{¶ 10} Ware argues that he should have been given the time provided under
Civ.R. 6(C)(1) to respond to the prosecutor’s motion for summary judgment.
Civ.R. 6(C)(1) provides that “[r]esponses to motions for summary judgment may
be served within twenty-eight days after service of the motion,” and the Fifth
District’s local rules provide that “original actions shall . . . proceed as a civil case
under the Ohio Rules of Civil Procedure unless those rules are clearly inapplicable,”
Fifth Dist.Loc.R. 4(A). Ware argues that under the civil rules, he was entitled to 28
days to respond to the prosecutor’s motion for summary judgment. But the court
of appeals issued its decision on September 15—which was 24 days after the
prosecutor’s brief was filed and before Ware filed his reply brief.
{¶ 11} Generally, regarding an original action seeking an extraordinary
writ, the court may issue an alternative writ and a scheduling order that control for
the action and supersede conflicting rules of civil procedure. See [CITATION], ¶ 17. Here, the court of appeals issued an
alternative writ and scheduling order permitting Ware to file a reply brief within
ten days of the filing of the prosecutor’s brief. The court’s alternative writ and
scheduling order control, regardless of what the parties titled their briefs. The court
of appeals did not err by denying the writ and granting summary judgment to the
prosecutor after the ten-day reply deadline expired.
B. Statutory damages
{¶ 12} Ware argues that the court of appeals improperly denied his request
for statutory damages.
{¶ 13} “Statutory damages shall be awarded if a requester of public records
transmits a written request to a public office by hand delivery, electronic
submission, or certified mail and the public office or person responsible for public
records fails to comply with its obligations under R.C. 149.43(B).” [CITATION]
[SEGMENT 5]
January Term, 2024
[CITATION]; accord R.C. 149.43(C)(2). We “review
de novo a court of appeals’ decision to grant or deny statutory damages under [R.C.
149.43].” [CITATION].
{¶ 14} A public office shall make copies of a “requested public record
available to the requester at cost and within a reasonable period of time.”
R.C. 149.43(B)(1). Ware argues that he is entitled to statutory damages because he
made his public-records request by certified mail in April 2022 and the prosecutor
did not respond to the request until after he filed his mandamus action in July 2023.
The court of appeals concluded, however, that the envelope Ware sent to the
prosecutor’s office in April 2022 did not contain a public-records request and thus
Ware did not transmit a public-records request to the prosecutor in April 2022.
[CITATION]. It concluded that at the earliest, Ware
transmitted the request to the prosecutor in July 2023 when he served the prosecutor
with the mandamus complaint by certified mail with the request attached to the
complaint. Id. And the court concluded that assuming the delivery of a public-
records request by attaching it to a mandamus complaint sent to the public office is
permissible under R.C. 149.43(C)(2), the prosecutor’s providing the records to
Ware 11 days after delivery of the complaint and request was reasonable. Id. at
¶ 24-26. (The court of appeals, however, did not decide whether delivery of a
mandamus complaint with a public-records request attached to it is a proper method
of delivery of a public-records request.)
{¶ 15} The court of appeals’ conclusions were not erroneous. Ware has the
burden to prove by clear and convincing evidence that he delivered the public-
records requests by certified mail in April 2022, as he alleges. See [CITATION]. The prosecutor submitted evidence
supporting his assertion that the certified mail sent by Ware to his office in April
2022 did not contain a public-records request. Ware asserts that the assistant
SUPREME COURT OF OHIO
prosecutor lied in his affidavit about that assertion and that the assistant prosecutors
who opened the envelope photographed a document that they knew had not been in
the envelope. Ware provides no evidence in support of these assertions other than
his own affidavit. “[W]hen the evidence on the method-of-delivery of a public-
records request consists of contradictory affidavits or is inconclusive, the requester
has not satisfied his burden under R.C. 149.43(C)(2).” Id. at ¶ 22; see also [CITATION] (holding that when the evidence
concerning delivery of a public-records request is evenly balanced, the requester
has not satisfied the heightened burden of proof necessary for an award of statutory
damages). Ware has failed to show by clear and convincing evidence that he
delivered a public-records request to the prosecutor by certified mail in April 2022.
{¶ 16} Ware also argues that the court of appeals improperly relied on
information related to another of his public records cases. In its decision in this
case, the court of appeals cited another case involving Ware. See [CITATION] at ¶ 11, citing [CITATION]. It also cited multiple affidavits that the prosecutor submitted as evidence that relate to other
public-records requests Ware had made. Even if Ware is correct that it is improper
for a court of appeals to base its conclusions on such information, it is clear that the
court of appeals referred to this information only to explain why the prosecutor’s
office had implemented a special procedure for opening mail from Ware. The court
of appeals did not deny Ware’s request for statutory damages based on this
information.
C. Court costs
{¶ 17} Ware also argues that the court of appeals improperly denied his
request for an award of court costs. Ware requested an award of costs on the ground
that the prosecutor acted in bad faith when he produced responsive records after
Ware filed his mandamus action but before the court of appeals ordered the
prosecutor to do so. An award of court costs to the relator is mandatory if a public
January Term, 2024
office makes such a bad-faith production of requested records. See
R.C. 149.43(C)(3)(a)(ii); accord [CITATION], 2023-Ohio-2266, at ¶ 22. We apply an
abuse-of-discretion standard when reviewing a lower court’s determination
whether to award court costs based on a claim of bad faith. [CITATION] at ¶ 22.
{¶ 18} The court of appeals concluded that the prosecutor did not receive
the public-records request until he was served with Ware’s mandamus complaint
and thus did not act in bad faith by responding to the request only after Ware filed
his mandamus action. For the reasons discussed above, this conclusion was not an
abuse of discretion.
III. CONCLUSION
{¶ 19} Because the prosecutor produced all the records that are responsive
to Ware’s public-records request, we conclude that the court of appeals properly
denied Ware’s request for a writ as moot. The court of appeals also properly
declined to award Ware statutory damages and court costs. We affirm the judgment
of the Fifth District Court of Appeals.
Judgment affirmed.
_________________
Kimani E. Ware, pro se.
Kyle L. Stone, Stark County Prosecuting Attorney, and Gerard T. Yost,
Assistant Prosecuting Attorney, for appellee.
_________________
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION].]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-2102
THE STATE EX REL. WARE v. BOOTH.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as [CITATION].]
Mandamus—Public-records requests—Motion for judgment on the pleadings
denied—Alternative writ granted and case referred to master commissioner
for full evidentiary hearing.
(No. 2023-1293—Submitted December 12, 2023—Decided June 4, 2024.)
IN MANDAMUS.
________________
DEWINE, J.
{¶ 1} This matter comes before us on a motion for judgment on the
pleadings in a public-records case. Kimani Ware has alleged that he requested
certain records from Glenn Booth, the public-information officer at the Trumbull
Correctional Institution (“TCI”) and that Booth failed to provide the records. Booth
has filed a motion for judgment on the pleadings, asserting, among other things, SUPREME COURT OF OHIO
that Ware has submitted fabricated evidence to the court. We deny the motion for
judgment on the pleadings and instead grant an alternative writ. Pursuant to
S.Ct.Prac.R. 12.10, we refer this case to a master commissioner to conduct a full
evidentiary hearing on the request for a writ of mandamus. An evidentiary hearing
will allow this court not only to determine whether a writ of mandamus is proper,
but also whether Kimani Ware should be sanctioned for presenting fabricated
evidence to this court.
Disputed facts and allegations of fraud
{¶ 2} This is a classic “he said, she said” case. Ware claims that he
personally provided a request for public records to Booth on August 5, 2022.
According to the verified complaint, Booth “signed for [Ware’s] hand delivered
public records request” seeking seven records and “stated to [Ware] that he would
process [Ware’s] records request the following week.” Ware says that he never
received any records, and after writing Booth three letters to follow up, decided to
sue him, seeking a writ of mandamus and statutory damages. He attached as
Exhibit A to his complaint a “copy of the original” paper slip that Booth allegedly
signed and insists that Booth “has the original ink copy in his possession.”
{¶ 3} Booth swears that he “did not sign Relator’s Exhibit A receipt, keep[]
the original and mak[e] Relator a copy,” and denies receiving any follow-up letters
from Ware. (Emphasis in original.) According to him, the “signature, title, and
date were all hand-written by me, but not on that document.” (Emphasis in
original.) He believes that “Exhibit A is a fraudulent alteration that inmate Ware
has tampered with.” Booth further explains that he “checked Kimani Ware’s TCI
institutional inmate account and did not locate any transaction or cash slip that was
signed on or about August 5, 2022,” meaning that he “would have no reason to
have any interaction with inmate Ware on that date.” (Emphasis in original.)
According to Booth, he did not provide Ware with any records because he has
[SEGMENT 6]
January Term, 2024
“never seen” the public-records request supposedly affiliated with the signed
receipt “and it was never hand-delivered” to him.
Judgment on the pleadings
{¶ 4} On its face, Ware’s account seems farfetched. But none of the
arguments presented by the assistant attorney general representing Booth provides
a basis for judgment on the pleadings. The motion contends that Ware failed to
verify his mandamus complaint, see R.C. 2731.04, with a proper affidavit, see R.C.
147.542. But a review of Ware’s affidavit verifying the petition demonstrates that
it satisfies all the statutory requirements.
{¶ 5} Booth also requests judgment on the pleadings because the evidence
of delivery of Ware’s public-records request is at best “evenly balanced” and thus
“Ware has not met his heightened burden of proof.” This argument evinces a failure
to understand the pleading standard. A motion for judgment on the pleadings does
not allow a court to weigh the evidence; instead, it simply tests the sufficiency of
the complaint.1 See [CITATION], citing [CITATION] (1996). In deciding a motion for judgment on the pleadings, a court must accept
Ware’s factual allegations as true. [CITATION] (Brown, C.J., dissenting). Thus, we deny the motion for
judgment on the pleadings.
Evidentiary hearing
{¶ 6} Ordinarily, if we deny a motion to dismiss or a motion for judgment
on the pleadings in a case like this one, we grant an alternative writ and adopt a
1. Booth’s attorney also relies on the heightened federal pleading standard established in [CITATION] and [CITATION]. However, this court has never
adopted that standard. See [CITATION] (DeWine, J., concurring).
SUPREME COURT OF OHIO
schedule for briefing and the presentation of evidence. See, e.g., [CITATION].
Then we decide the case based on the paper record before us. See, e.g., [CITATION], ¶ 13.
{¶ 7} But this case counsels for a different approach. Booth alleges that
Ware has committed fraud and has submitted a document styled “notice of relator’s
deceitful conduct.” The document outlines a series of cases in which courts have
found that Ware engaged in deceitful conduct similar to what is alleged here. It
also reiterates Booth’s request that we deem Ware a vexatious litigator. We have
raised concerns about Ware’s apparent abuse of the judicial process in the past.
See, e.g., [CITATION], ¶ 48 (noting that record evidence “plausibly supports the
allegations that Ware routinely lied in affidavits and court filings”); see also [CITATION], ¶ 58 (DeWine, J., concurring in part and dissenting in part) (collecting
cases showing that Ware often “attach[es] a fabricated public-records request to the
complaint and alleg[es] that it had been ignored”); [CITATION], ¶ 21, fn. 2 (same); [CITATION] (“parties
ordered to address in their briefs, and permitted to present evidence as to, whether
[Ware] should be sanctioned”).
{¶ 8} Our rules authorize us to refer an original action to a master
commissioner “for the presentation of evidence, hearings, and oral argument.”
S.Ct.Prac.R. 12.10; see, e.g., [CITATION] (“Matter referred to master commissioner * * *
pursuant to S.Ct.Prac.R. 12.10, for the purpose of conducting a hearing.”). In this
case, either Booth is lying, or Ware is lying. The best way to get at the truth is to
January Term, 2024
conduct an evidentiary hearing. At such a hearing, witnesses—including Booth
and Ware—may be called to testify and may be subject to cross-examination. And
the master commissioner will be able to make determinations about the credibility
of the witnesses.
{¶ 9} A full evidentiary hearing will allow us to decide whether a writ of
mandamus is appropriate. And if the hearing establishes that Ware is in fact
engaging in fraud, it will provide a basis for us to impose sanctions and take
appropriate measures to protect the integrity of our judicial proceedings. We may
sanction a party who files an action that we deem frivolous. See S.Ct.Prac.R.
4.03(A). We may also declare a party “who habitually, persistently, and without
reasonable cause engages in frivolous conduct” to be a vexatious litigator.
S.Ct.Prac.R. 4.03(B); see, e.g., [CITATION].
Conclusion
{¶ 10} We deny the motion for judgment on the pleadings. We grant an
alternative writ. The matter is referred to a master commissioner for purposes of
conducting an evidentiary hearing on the request for a writ of mandamus. This
referral encompasses any related matters including, if necessary, a recommendation
to this court for appropriate action under S.Ct.Prac.R. 4.03.
Motion denied
and alternative writ granted.
FISCHER, DONNELLY, BRUNNER, and DETERS, JJ., concur.
KENNEDY, C.J., concurs in judgment only in part and dissents in part and
would not refer the case for a hearing.
SUPREME COURT OF OHIO
STEWART, J., dissents from the judgment and opinion ordering an
alternative writ and would grant respondent’s motion for judgment on the
pleadings.
_________________
Kimani Ware, pro se.
Dave Yost, Attorney General, and John H. Bates, Assistant Attorney
General, for respondent.
_________________
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION], Slip Opinion No. 2024-Ohio-3131.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-3131
[THE STATE EX REL .] [CITATION], PROS. ATTY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as [CITATION], Slip Opinion No.
-Ohio-3131.]
Mandamus—Public-records requests—Relator neither contends that any
documents he requested remain outstanding nor challenges validity of
redactions made to them—Determination of statutory damages, court costs,
and sanctions deferred pending review in camera of original documents that
prosecutor’s office received from relator—Writ denied as moot.
(No. 2023-1354—Submitted July 9, 2024—Decided August 20, 2024.)
IN MANDAMUS.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ. SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Relator, Kimani E. Ware, requests a writ of mandamus ordering the
production of records responsive to two public-records requests he claims to have
sent to respondent, Portage County Prosecuting Attorney Victor V. Vigluicci (“the
prosecutor”) in June and July 2022. Ware also seeks awards of statutory damages
and court costs. We previously granted an alternative writ and ordered the parties
to address in their briefing and evidence whether Ware should be sanctioned under
R.C. 2323.51, Civ.R. 11, and/or S.Ct.Prac.R. 4.03(B). [CITATION].
{¶ 2} We deny the writ as moot because Ware does not dispute that the
prosecutor produced documents responsive to Ware’s alleged public-records
requests after being served with the summons and complaint in this action.
Regarding the issues of court costs, statutory damages, and sanctions, we defer our
ruling pending the prosecutor’s submission of additional evidence. Specifically,
we order the prosecutor to file the original documents received by certified mail
from Ware in the envelopes postmarked June 22 and July 5, 2022. For the reasons
explained below, a review of the original documents received by the prosecutor will
resolve a factual dispute over whether Ware sent the public-records requests at issue
by certified mail.
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 3} Ware is an inmate at Richland Correctional Institution. He alleges
that he sent two public-records requests to the prosecutor by certified mail in June
and July 2022. Ware claims that he requested a copy of the personnel file of
Timothy J. Piero in the June mailing and that he requested copies of the records-
retention schedule of the prosecutor’s office and the prosecutor’s oath of office in
the July mailing. Ware has submitted copies of the envelopes in which he allegedly
sent his public-records requests, which are postmarked June 22 and July 5, 2022,
respectively. According to Ware, certified-mail receipts show that the prosecutor’s
office received both requests.
January Term, 2024
{¶ 4} Ware commenced this action in October 2023, alleging that the
prosecutor had violated his duty under R.C. 149.43(B)(1) to provide copies of the
requested public records within a reasonable time. Ware sought a writ of
mandamus compelling the prosecutor to provide records responsive to his requests,
and he requested statutory damages and court costs.
{¶ 5} The prosecutor filed an answer and a motion for judgment on the
pleadings. In his motion, the prosecutor asserted that Ware had commenced a
frivolous action that was premised on two nonexistent public-records requests.
Though admitting that his office had received two certified mailings from Ware in
envelopes with tracking numbers that matched the copies attached to Ware’s
complaint, the prosecutor contended that neither certified mailing contained a
public-records request. Rather, the prosecutor averred, the first certified mailing
contained only a one-page judgment entry issued in an unrelated case from this
court and the second certified mailing contained only a one-page document filed in
the same unrelated case. Attached to the prosecutor’s answer were the documents
that the prosecutor’s office claimed to have received in the certified mailings that
allegedly contained public-records requests.
{¶ 6} The prosecutor further asserted in his motion that his office had no
record of receiving the public-records requests at issue here until his office received
the summons and complaint in this action. The prosecutor contended that he sent
Ware the requested records on November 3, 2023—four days after being served
with the summons and complaint. The prosecutor therefore argued that the
production of the requested records rendered Ware’s action moot and that Ware
was not entitled to statutory damages, because no public-records requests were ever
delivered by certified mail. Finally, the prosecutor contended that Ware had
displayed a “pattern of conduct where [Ware] sends certified mailings to public
offices that do not contain a public records request,” only to later claim falsely that
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the certified mailings contained public-records requests. The prosecutor argued
that Ware’s actions warranted a finding of frivolous conduct.
{¶ 7} We denied the prosecutor’s motion for judgment on the pleadings and
granted an alternative writ. [CITATION]. In addition to setting a schedule for
the submission of evidence and merit briefing, we ordered the parties to address in
their briefs, and permitted them to present evidence as to, whether Ware should be
sanctioned under R.C. 2323.51, Civ.R. 11, and/or S.Ct.Prac.R. 4.03(B). [CITATION].
{¶ 8} In his evidence, Ware submitted an affidavit addressing the
prosecutor’s contention that he did not send public-records requests at all.
According to Ware, his first public-records request was “a two sided paper”: on one
side was the judgment entry issued in the unrelated case and on the other was his
handwritten public-records request. Likewise, Ware testifies that his second
public-records request is also on a two-sided paper, with one side being the
document filed in the unrelated case and the public-records request “written on the
back.” Ware accuses the prosecutor of copying only one side of each document for
filing in this case.
{¶ 9} The prosecutor disputes Ware’s testimony. Assistant Prosecuting
Attorney Chrisopher Meduri and the prosecutor’s chief administrator, Lori Heiney,
have submitted affidavits averring that the two certified mailings from Ware
contained only one-page documents from the unrelated case and that no public-
records request was written on the backside of either document. Heiney also
testifies that the original papers received from Ware are in the custody of the
prosecutor’s office.
ANALYSIS
Ware’s mandamus claim
{¶ 10} Mandamus is an appropriate remedy to compel compliance with R.C.
149.43, Ohio’s Public Records Act. R.C. 149.43(C)(1)(b). But providing the
January Term, 2024
requested records to the relator moots a public-records mandamus claim. [CITATION]. In this case, it is not disputed that the
prosecutor provided the records responsive to Ware’s requests in November 2023.
{¶ 11} Ware does not contend that any documents requested remain
outstanding. Nor does Ware challenge the validity of certain redactions made to the
records that were produced. We therefore deny the writ of mandamus as moot.
Statutory damages
{¶ 12} Ware seeks statutory damages for the prosecutor’s alleged failure to
comply with the Public Records Act. When a respondent has taken an unreasonable
amount of time to produce requested records, the relator may be entitled to an award
of statutory damages even if the mandamus claim is moot. [CITATION]. R.C. 149.43(C)(2) allows a
relator to recover $100 for each business day during which a respondent failed to
comply with an obligation arising under R.C. 149.43(B), beginning on the date of
commencement of the public-records action and up to a maximum of $1,000. In this
case, Ware contends that he is entitled to statutory damages because the prosecutor
did not respond to his public-records requests until after Ware commenced this
action.
{¶ 13} To be eligible for statutory damages, Ware must prove by clear and
convincing evidence that he delivered his public-records requests to the prosecutor’s
office “by hand delivery, electronic submission, or certified mail,” R.C.
149.43(C)(2); see also [CITATION].
Ware alleges that he sent to the prosecutor’s office by certified mail separate public-
records requests in June and July 2022. As evidence, Ware has submitted certified-
mail tracking printouts, which purportedly show that the prosecutor’s office received
Ware’s certified mailings on June 24 and July 7, 2022, respectively. The prosecutor
disputes Ware’s claim, contending that his office did not actually receive a public-
records request from Ware on either date and that his office first learned of Ware’s
[SEGMENT 2]
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requests when it was served with the summons and complaint in this original action
in October 2023.
{¶ 14} According to the prosecutor, Ware’s entire action here is a sham,
premised on public-records requests that he never sent to the prosecutor’s office.
Regarding Ware’s certified mailing postmarked June 22, 2022, the prosecutor offers
sworn testimony from his chief administrator, Heiney, that the mailing contained
only a one-page judgment entry issued by this court in the unrelated case. And
contrary to Ware’s assertion, Heiney also testifies that “there is no writing of any
kind on the ‘backside’ of the original single one page document, which was kept by
and is in the custody of the Portage County Prosecutor’s Office.”
{¶ 15} Similarly, regarding Ware’s certified mailing postmarked July 5,
2022, Heiney avers that the mailing contained only a copy of a document filed in the
unrelated case. Heiney also testifies that “there is no writing of any kind on the
‘backside’ of the original single one page document, which was kept by and is in the
custody of the Portage County Prosecutor’s Office.” Assistant Prosecuting Attorney
Christopher Meduri corroborates Heiney’s testimony, testifying that neither of the
certified mailings from Ware contained a public-records request written on the
backside of the documents found inside the certified-mail envelopes.
{¶ 16} The prosecutor argues that this case is similar to other public-records
cases in which Ware sent random documents to public offices, obtained certified-
mail receipts, and later claimed that he had sent requests for public records that the
public office failed to respond to. To be sure, this case is not the first time that a
public office has suggested that Ware is running a public-records scam. See, e.g.,
[CITATION], ¶ 12-13 (noting evidence that Ware
sent miscellaneous documents to public offices that do not require a response,
obtained certified-mail receipts, and later claimed that he had sent a request for public
records); [CITATION], ¶ 48 (lead
opinion) (noting that the evidence before the court “plausibly supports the allegations
January Term, 2024
that Ware routinely lied in affidavits and court filings regarding whether he had sent
public-records requests by certified mail”); [CITATION] (determining that Ware had not sent the alleged public-
records request and that a hearing would be scheduled on a motion for sanctions
against Ware); [CITATION] (noting evidence of Ware’s scheme and concluding that he had never sent the alleged
public-records requests).
{¶ 17} In previous cases in which Ware claimed to have sent a public-records
request by certified mail but the public office denied having received it, we simply
denied statutory damages, without resolving the issue whether Ware had engaged in
a scam. See [CITATION]. This is because “when the evidence on the method-of-
delivery of a public-records request consists of contradictory affidavits or is
inconclusive, the requester has not satisfied his burden under R.C. 149.43(C)(2),”
[CITATION]; see also [CITATION].
{¶ 18} In this case, a different approach is appropriate. The prosecutor does
not dispute that his office received documents by certified mail from Ware that were
postmarked June 22 and July 5, 2022; indeed, copies of the envelopes submitted by
the prosecutor as evidence are identical to the copies that Ware has submitted as
evidence. The prosecutor contends, however, that Ware is lying about what those
envelopes contained. Heiney—who opened the certified mailings from Ware—
testifies that “there is no writing of any kind” on the backside of either piece of paper
mailed to the prosecutor’s office, directly refuting Ware’s claim that he had
handwritten a public-records request on the back of each piece of paper that the
prosecutor received. Heiney also testifies that the prosecutor’s office has retained the
original documents that Ware transmitted in the certified-mail envelopes postmarked
June 22 and July 5, 2022.
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{¶ 19} Reviewing the original documents that the prosecutor’s office
received will definitively show whether Ware is committing a fraud on this court.
See [CITATION] (referring another of Ware’s
public-records cases to a master commissioner for a full evidentiary hearing to
determine whether “Ware is in fact engaging in fraud” and, if so, whether sanctions
are appropriate). We therefore order the prosecutor to file the original documents
received from Ware in the certified-mail envelopes postmarked June 22 and July 5,
2022, for our in camera review. We defer the determination of statutory damages
until we have reviewed the original documents submitted by the prosecutor’s office.
See [CITATION] (ordering the originals and
seven unredacted copies of the records at issue to be filed under seal for in camera
review and deferring determination of a privilege issue pending in camera review
of the records).
Court costs and sanctions
{¶ 20} In addition to statutory damages, Ware seeks an award of court costs
under R.C. 149.43(C)(3)(b)(iii), which applies when the public office or person
responsible for the public records “acted in bad faith” by voluntarily making public
records available for the first time after the relator has commenced a mandamus
action. The prosecutor contends that Ware is not entitled to court costs for the same
reason he is not entitled to statutory damages—i.e., because Ware did not send a
public-records request by certified mail at all. For the same reasons explained
above, we defer consideration of court costs until we have reviewed the original
documents the prosecutor received from Ware by certified mail.
{¶ 21} Similarly, we defer the determination of whether Ware should be
sanctioned under R.C. 2323.51, Civ.R. 11, and/or S.Ct.Prac.R. 4.03(B). If a review
of the original documents received by the prosecutor’s office shows that Ware is,
in fact, engaging in fraud, it will provide a basis for this court “to impose sanctions
January Term, 2024
and take appropriate measures to protect the integrity of our judicial proceedings,”
[CITATION] at ¶ 9.
CONCLUSION
{¶ 22} For the foregoing reasons, we deny the writ as moot and defer our
determination of statutory damages, court costs, and sanctions for Ware’s alleged
frivolous conduct until we have reviewed in camera the original documents that the
prosecutor’s office received from Ware in the certified-mail envelopes postmarked
June 22 and July 5, 2022. We order the prosecutor’s office to file those original
documents in this court within 14 days of this decision for in camera review.
Writ denied as moot.
__________________
Kimani E. Ware, pro se.
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Chrisopher
J. Meduri, Assistant Prosecuting Attorney, for respondent.
__________________
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION].]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-2827
THE STATE EX REL. MOBLEY v. BATES, PROS. ATTY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as [CITATION].]
Mandamus—Public-records requests—Because public-records custodian provided
requested records, offered to provide records upon prepayment of copying
costs, or averred that requested records do not exist, public office satisfied
its obligations under R.C. 149.43—Requester failed to prove by clear and
convincing evidence that he delivered public-records requests by certified
mail—Writ, statutory damages, and court costs denied.
(No. 2023-1594—Submitted May 7, 2024—Decided July 30, 2024.)
IN MANDAMUS.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ. SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Relator, Alphonso Mobley Jr., filed an original action in mandamus
against respondent, Lucas County Prosecuting Attorney Julia Bates (“the
prosecutor” or “the prosecutor’s office”). Mobley seeks the production of public
records and awards of statutory damages and court costs. We deny the writ and
decline to award Mobley statutory damages or court costs.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Mobley alleges that on October 30, 2023, the prosecutor received a
public-records request that Mobley had sent to the prosecutor by certified mail. The
record does not contain a copy of the request, but Mobley states that he sought in
the request paper copies of the prosecutor’s (1) “[r]ecords retention schedule,”
(2) “[c]ertified statements for years 2016-2021 pursuant to R.C. 309.16,” and
(3) “[c]ashbook[s] for years 2016-2021 pursuant to R.C. 2335.25.” Mobley did not
receive a response from the prosecutor regarding his request prior to his filing this
mandamus action.
{¶ 3} Mobley filed this mandamus action on December 14, 2023, and the
prosecutor was served with the complaint on December 19. On January 5, 2024,
the prosecutor’s office sent Mobley a letter. In that letter, the prosecutor’s office
stated that it had no record of having received Mobley’s request but that it was
providing a response to the request described in Mobley’s complaint. In response
to Mobley’s request for the prosecutor’s office’s “[r]ecords retention schedule,” the
prosecutor’s office provided Mobley with a copy of the office’s records-retention
schedule. In response to Mobley’s request for certified statements, the prosecutor’s
office stated that the records responsive to that request might total nearly 10,000
pages and that a paper copy of the records would cost approximately $1,000. The
prosecutor’s office asked Mobley to inform it as to whether he still wanted paper
copies of those records. And in response to Mobley’s request for “[c]ashbook[s],”
the prosecutor’s office stated that it did not have cashbooks for the years requested.
[SEGMENT 3]
January Term, 2024
{¶ 4} The prosecutor filed an answer to Mobley’s mandamus complaint,
and this court issued an alternative writ allowing the parties to submit evidence and
ordering them to submit briefs, [CITATION]. As part of its evidence, the
prosecutor’s office submitted an affidavit of an assistant prosecutor. The assistant
prosecutor avers that all public-records requests made to the prosecutor’s office are
forwarded to him. He avers that he never received the public-records request at
issue in this case and that the prosecutor’s office has no record of having received
it. Mobley submitted as evidence a certified-mail return receipt for a mailing
addressed to the prosecutor’s office that was delivered and signed for on
October 30, 2023. The signature of the person who accepted the delivery is
illegible. Mobley avers that this receipt was for the mailing of his public-records
request. Mobley has not submitted a copy of the request or an envelope with a
tracking number matching the tracking number on the receipt.
II. LEGAL ANALYSIS
A. Writ of mandamus
{¶ 5} “[U]pon request by any person, a public office or person responsible
for public records shall make copies of the requested public record available to the
requester at cost and within a reasonable period of time.” R.C. 149.43(B)(1).
Mandamus is an appropriate remedy to compel compliance with R.C. 149.43(B).
R.C. 149.43(C)(1)(b). To be entitled to a writ of mandamus, Mobley must prove,
by clear and convincing evidence, that he has a clear legal right to the relief sought
and that the prosecutor has a clear legal duty to provide that relief. [CITATION], ¶ 10.
{¶ 6} Mobley argues that the prosecutor has not properly responded to his
requests for certified statements and cashbooks and requests a writ of mandamus
ordering the production of those records. We deny the writ. The prosecutor’s office
avers that it never received Mobley’s public-records request. But even if the
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prosecutor received the request and failed to respond to it by the time Mobley filed
this action, the prosecutor has since properly responded to the request.
{¶ 7} Mobley states that in his request for certified statements, he requested
“[c]ertified statements for years 2016-2021 pursuant to R.C. 309.16.” Former
R.C. 309.16, Am.Sub.S.B. No. 98, 138 Ohio Laws, Part I, 683, which has been
repealed, required prosecutors to file annual statements regarding criminal
prosecutions with the applicable board of county commissioners and, with respect
to arson offenses, with the state fire marshal. In its January 5, 2024 letter to Mobley
regarding his public-records request, the prosecutor’s office told Mobley that paper
copies of the statements to the board of county commissioners would cost
approximately $1,000 and asked Mobley to advise the office whether he wanted to
proceed with the request. Mobley did not respond to that instruction.
{¶ 8} A public office may charge for copies of public records at cost. See
R.C. 149.43(B)(6). In his brief, Mobley suggests that he requested statements sent
to the state fire marshal in addition to statements sent to the board of county
commissioners and that the prosecutor did not provide the statements that were sent
to the state fire marshal or an estimate of the cost to provide them. The prosecutor
clarifies in her brief, however, that the same statements were sent to both the board
of county commissioners and the state fire marshal. Because the prosecutor
properly required payment of the copying costs before providing the statements, we
deny the writ as to the request for certified statements.
{¶ 9} Mobley states that in his request for cashbooks, he sought
“[c]ashbook[s] for years 2016-2021 pursuant to R.C. 2335.25.” R.C. 2335.25
requires prosecutors to keep a cashbook containing a record of all moneys that they
collect or receive and that the cashbook “shall be a public record of the office.” The
prosecutor’s office told Mobley—and it avers here—that it does not have any
cashbooks or other records responsive to the request. Mobley argues that the
prosecutor’s office’s assertion that it does not have responsive records is
January Term, 2024
contradicted by the office’s records-retention schedule, which contains a records
schedule titled “Cash Books & Journals” and similarly titled schedules. But the
existence of a particular records schedule at a public office does not necessarily
mean that the public office has records encompassed by that schedule. And here,
the prosecutor denies having any records responsive to Mobley’s request for
cashbooks. Mobley has the burden to prove, by clear and convincing evidence, that
the records he requested exist. See [CITATION], ¶ 8. He has not done so, and the prosecutor has “no duty to create or provide access
to nonexistent records,” [CITATION], ¶ 15.
Therefore, we deny the writ as to the request for cashbooks.
{¶ 10} Because the prosecutor has now either provided the requested
records, offered to provide Mobley with the records upon prepayment of the
copying costs, or averred that the records do not exist, we deny the writ.
B. Statutory damages and court costs
{¶ 11} “Statutory damages shall be awarded if a requester of public records
transmits a written request to a public office by hand delivery, electronic
submission, or certified mail and the public office or person responsible for public
records fails to comply with its obligations under R.C. 149.43(B).” [CITATION], ¶ 13; accord R.C. 149.43(C)(2).
{¶ 12} Mobley argues that he is entitled to statutory damages because the
prosecutor did not respond to his public-records request within a reasonable time.
A public office shall provide copies of a requested public record “within a
reasonable period of time.” R.C. 149.43(B)(1). Mobley alleges that the prosecutor
received his public-records request on October 30, 2023, and the prosecutor did not
respond to the request until January 5, 2024—67 days later.
{¶ 13} The prosecutor’s office, however, avers that it never received the
public-records request. As evidence that he had sent the request to the prosecutor’s
office by certified mail, Mobley submitted a copy of a certified-mail return receipt
```plaintext
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that may have been signed for by someone from the prosecutor’s office on
October 30 and his own affidavit averring that he sent the request by certified mail.
Mobley, however, did not submit a copy of the public-records request. He also did
not submit a copy of the envelope that the records request was mailed in. Because
he did not submit a copy of the envelope, we cannot confirm that the certified-mail
return receipt contains the same tracking number as that on the envelope.
{¶ 14} “[W]hen the evidence on the method-of-delivery of a public-records
request consists of contradictory affidavits or is inconclusive, the requester has not
satisfied his burden under R.C. 149.43(C)(2).” [CITATION],
¶ 22; see also [CITATION], ¶ 32 (holding that when the evidence concerning delivery of a public-records
request is evenly balanced, the requester has not satisfied the heightened burden of
proof necessary for an award of statutory damages). Here, Mobley submitted as
evidence a certified-mail return receipt. But other than his own affidavit, which the
prosecutor disputes, Mobley has submitted no evidence linking the receipt to a
public-records request.
{¶ 15} This court recently addressed a similar situation in [CITATION]. In that
case, the relator averred that he had sent a public-records request by certified mail
and submitted a certified-mail return receipt as evidence, but the respondent denied
ever receiving the request. [CITATION] at ¶ 12, 16-17. This court determined that the
relator had not proved by clear and convincing evidence that he had delivered the
request by certified mail. Id. at ¶ 22. To be sure, in [CITATION], this court cited
another case in which a public office had denied receiving public-records requests
from the relator in [CITATION]. Id. at ¶ 21, citing [CITATION] at ¶ 32-34. But in
[CITATION], the relator also submitted as evidence a copy of the public-records
request, see id. at ¶ 32 (Kennedy, C.J., dissenting), which Mobley has not done
here. We conclude that Mobley, having provided even less evidence than that
provided by the relator in [CITATION], has not proved by clear and convincing
[SEGMENT 4]
``` January Term, 2024
evidence that he transmitted his public-records request by certified mail. And
because he has not done so, we decline to award statutory damages.
{¶ 16} Mobley also requests an award of court costs. Court costs shall be
awarded if “the court orders the public office or the person responsible for the
public record to comply with [R.C. 149.43(B)].” R.C. 149.43(C)(3)(a)(i). Because
we deny the writ, we also decline to award court costs. In addition, Mobley filed
an affidavit of indigency, so he has not incurred court costs.
III. CONCLUSION
{¶ 17} Because the prosecutor’s office has now either provided the records
requested by Mobley, offered to provide Mobley with the records upon prepayment
of the copying costs, or averred that the records do not exist, we deny Mobley’s
request for a writ of mandamus. We also decline to award Mobley statutory
damages or court costs.
Writ denied.
_________________
Alphonso Mobley Jr., pro se.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell,
Assistant Prosecuting Attorney, for respondent.
_________________
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION].]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-2746
THE STATE EX REL. WARE, APPELLANT, v. STONE, PROS. ATTY., APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as [CITATION].]
Mandamus—Public-records requests—R.C. 149.43—Generally, in an original
action seeking an extraordinary writ, the court may issue an alternative writ
and a scheduling order that control for the action and supersede conflicting
rules of civil procedure—Because the prosecutor produced all the records
responsive to the public-records request, the request for a writ of mandamus
was moot—Court of appeals properly declined to award statutory damages
and court costs—Court of appeals’ judgment affirmed.
(No. 2023-1343—Submitted May 7, 2024—Decided July 23, 2024.)
APPEAL from the Court of Appeals for Stark County,
No. 2023CA00066, 2023-Ohio-3865.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER, ```plaintext
SUPREME COURT OF OHIO
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.
Per Curiam.
{¶ 1} Appellant, Kimani E. Ware, filed a complaint for a writ of mandamus
in the Fifth District Court of Appeals, seeking a writ ordering appellee, Stark
County Prosecuting Attorney Kyle Stone (“the prosecutor” or “the prosecutor’s
office”), to produce records in response to a public-records request. Ware also
requested awards of statutory damages and court costs. The court of appeals
granted the prosecutor’s motion for summary judgment, denied the writ as moot,
and denied Ware’s request for awards of statutory damages and court costs. Ware
appeals that judgment. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Ware is currently incarcerated. He alleged in his mandamus
complaint that in April 2022, he sent the prosecutor a public-records request by
certified mail, requesting copies of the prosecutor’s office’s roster of current
employees and annual budget reports for January 2019 through January 2022. He
included with his complaint a document stating the tracking number for the certified
mail.
{¶ 3} The prosecutor denied receiving the public-records request. Based on
its previous interactions with Ware, the prosecutor’s office had adopted special
procedures for opening mail from Ware. An assistant prosecutor averred that in
April 2022, he and a colleague opened a certified-mail envelope sent by Ware that
reflected the same tracking number Ware provided with his mandamus complaint.
The assistant prosecutor averred that the envelope did not contain a public-records
request but rather a court filing from another case. The assistant prosecutor took a
picture of the envelope and the filing.
{¶ 4} On July 3, 2023—over a year after he sent the prosecutor the certified
mail at issue—Ware filed a complaint for a writ of mandamus in the court of
appeals. He sought a writ ordering the prosecutor to provide the requested records
``` ```plaintext
January Term, 2024
and awards of statutory damages and court costs. On July 13, after the prosecutor
was served with the complaint, he provided Ware with the requested records.
{¶ 5} The court of appeals granted an alternative writ and set a schedule for
the filing of evidence and briefs. Both parties moved for summary judgment. The
court of appeals granted the prosecutor’s motion for summary judgment, denied
Ware’s motion for summary judgment, denied the writ as moot, and denied Ware’s
request for awards of statutory damages and court costs. [CITATION].
{¶ 6} Ware appeals to this court as of right. He challenges the procedure
employed by the court of appeals and aspects of its decision in favor of the
prosecutor. He argues that the court of appeals should have awarded him statutory
damages and court costs, but he does not dispute that he has received all the
documents that are responsive to his public-records request.
II. LEGAL ANALYSIS
A. The court of appeals properly followed its case schedule
{¶ 7} Ware argues that the court of appeals’ judgment should be reversed
because the court did not allow him the specified time under the Ohio Rules of Civil
Procedure to respond to the prosecutor’s motion for summary judgment.
{¶ 8} After the prosecutor filed an answer to Ware’s mandamus complaint,
the court of appeals granted an alternative writ and set a schedule for the filing of
evidence and briefs. The scheduling entry required Ware to file a brief within 14
days of the filing of the evidence, required the prosecutor to file a brief within 21
days of the filing of Ware’s brief, and permitted Ware to file a reply brief within 10
days of the filing of the prosecutor’s brief. The entry provided, “The briefs should
. . . be a memorandum in support of or against the claim(s) or defense(s).”
{¶ 9} Both parties titled their briefs “Motion for Summary Judgment,” but
in substance, the motions were memoranda in support of or against the requested
writ. Under the court of appeals’ scheduling entry, Ware had ten days to file a reply
``` SUPREME COURT OF OHIO
to the prosecutor’s brief. He did not do so, and the court of appeals issued its
decision after the ten-day deadline expired.
{¶ 10} Ware argues that he should have been given the time provided under
Civ.R. 6(C)(1) to respond to the prosecutor’s motion for summary judgment.
Civ.R. 6(C)(1) provides that “[r]esponses to motions for summary judgment may
be served within twenty-eight days after service of the motion,” and the Fifth
District’s local rules provide that “original actions shall . . . proceed as a civil case
under the Ohio Rules of Civil Procedure unless those rules are clearly inapplicable,”
Fifth Dist.Loc.R. 4(A). Ware argues that under the civil rules, he was entitled to 28
days to respond to the prosecutor’s motion for summary judgment. But the court
of appeals issued its decision on September 15—which was 24 days after the
prosecutor’s brief was filed and before Ware filed his reply brief.
{¶ 11} Generally, regarding an original action seeking an extraordinary
writ, the court may issue an alternative writ and a scheduling order that control for
the action and supersede conflicting rules of civil procedure. See [CITATION], ¶ 17. Here, the court of appeals issued an
alternative writ and scheduling order permitting Ware to file a reply brief within
ten days of the filing of the prosecutor’s brief. The court’s alternative writ and
scheduling order control, regardless of what the parties titled their briefs. The court
of appeals did not err by denying the writ and granting summary judgment to the
prosecutor after the ten-day reply deadline expired.
B. Statutory damages
{¶ 12} Ware argues that the court of appeals improperly denied his request
for statutory damages.
{¶ 13} “Statutory damages shall be awarded if a requester of public records
transmits a written request to a public office by hand delivery, electronic
submission, or certified mail and the public office or person responsible for public
records fails to comply with its obligations under R.C. 149.43(B).” [CITATION]
[SEGMENT 5]
January Term, 2024
[CITATION]; accord R.C. 149.43(C)(2). We “review
de novo a court of appeals’ decision to grant or deny statutory damages under [R.C.
149.43].” [CITATION].
{¶ 14} A public office shall make copies of a “requested public record
available to the requester at cost and within a reasonable period of time.”
R.C. 149.43(B)(1). Ware argues that he is entitled to statutory damages because he
made his public-records request by certified mail in April 2022 and the prosecutor
did not respond to the request until after he filed his mandamus action in July 2023.
The court of appeals concluded, however, that the envelope Ware sent to the
prosecutor’s office in April 2022 did not contain a public-records request and thus
Ware did not transmit a public-records request to the prosecutor in April 2022.
[CITATION]. It concluded that at the earliest, Ware
transmitted the request to the prosecutor in July 2023 when he served the prosecutor
with the mandamus complaint by certified mail with the request attached to the
complaint. Id. And the court concluded that assuming the delivery of a public-
records request by attaching it to a mandamus complaint sent to the public office is
permissible under R.C. 149.43(C)(2), the prosecutor’s providing the records to
Ware 11 days after delivery of the complaint and request was reasonable. Id. at
¶ 24-26. (The court of appeals, however, did not decide whether delivery of a
mandamus complaint with a public-records request attached to it is a proper method
of delivery of a public-records request.)
{¶ 15} The court of appeals’ conclusions were not erroneous. Ware has the
burden to prove by clear and convincing evidence that he delivered the public-
records requests by certified mail in April 2022, as he alleges. See [CITATION]. The prosecutor submitted evidence
supporting his assertion that the certified mail sent by Ware to his office in April
2022 did not contain a public-records request. Ware asserts that the assistant
SUPREME COURT OF OHIO
prosecutor lied in his affidavit about that assertion and that the assistant prosecutors
who opened the envelope photographed a document that they knew had not been in
the envelope. Ware provides no evidence in support of these assertions other than
his own affidavit. “[W]hen the evidence on the method-of-delivery of a public-
records request consists of contradictory affidavits or is inconclusive, the requester
has not satisfied his burden under R.C. 149.43(C)(2).” Id. at ¶ 22; see also [CITATION] (holding that when the evidence
concerning delivery of a public-records request is evenly balanced, the requester
has not satisfied the heightened burden of proof necessary for an award of statutory
damages). Ware has failed to show by clear and convincing evidence that he
delivered a public-records request to the prosecutor by certified mail in April 2022.
{¶ 16} Ware also argues that the court of appeals improperly relied on
information related to another of his public records cases. In its decision in this
case, the court of appeals cited another case involving Ware. See [CITATION] at ¶ 11, citing [CITATION]. It also cited multiple affidavits that the prosecutor submitted as evidence that relate to other
public-records requests Ware had made. Even if Ware is correct that it is improper
for a court of appeals to base its conclusions on such information, it is clear that the
court of appeals referred to this information only to explain why the prosecutor’s
office had implemented a special procedure for opening mail from Ware. The court
of appeals did not deny Ware’s request for statutory damages based on this
information.
C. Court costs
{¶ 17} Ware also argues that the court of appeals improperly denied his
request for an award of court costs. Ware requested an award of costs on the ground
that the prosecutor acted in bad faith when he produced responsive records after
Ware filed his mandamus action but before the court of appeals ordered the
prosecutor to do so. An award of court costs to the relator is mandatory if a public
January Term, 2024
office makes such a bad-faith production of requested records. See
R.C. 149.43(C)(3)(a)(ii); accord [CITATION], 2023-Ohio-2266, at ¶ 22. We apply an
abuse-of-discretion standard when reviewing a lower court’s determination
whether to award court costs based on a claim of bad faith. [CITATION] at ¶ 22.
{¶ 18} The court of appeals concluded that the prosecutor did not receive
the public-records request until he was served with Ware’s mandamus complaint
and thus did not act in bad faith by responding to the request only after Ware filed
his mandamus action. For the reasons discussed above, this conclusion was not an
abuse of discretion.
III. CONCLUSION
{¶ 19} Because the prosecutor produced all the records that are responsive
to Ware’s public-records request, we conclude that the court of appeals properly
denied Ware’s request for a writ as moot. The court of appeals also properly
declined to award Ware statutory damages and court costs. We affirm the judgment
of the Fifth District Court of Appeals.
Judgment affirmed.
_________________
Kimani E. Ware, pro se.
Kyle L. Stone, Stark County Prosecuting Attorney, and Gerard T. Yost,
Assistant Prosecuting Attorney, for appellee.
_________________
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION].]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-2102
THE STATE EX REL. WARE v. BOOTH.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as [CITATION].]
Mandamus—Public-records requests—Motion for judgment on the pleadings
denied—Alternative writ granted and case referred to master commissioner
for full evidentiary hearing.
(No. 2023-1293—Submitted December 12, 2023—Decided June 4, 2024.)
IN MANDAMUS.
________________
DEWINE, J.
{¶ 1} This matter comes before us on a motion for judgment on the
pleadings in a public-records case. Kimani Ware has alleged that he requested
certain records from Glenn Booth, the public-information officer at the Trumbull
Correctional Institution (“TCI”) and that Booth failed to provide the records. Booth
has filed a motion for judgment on the pleadings, asserting, among other things, SUPREME COURT OF OHIO
that Ware has submitted fabricated evidence to the court. We deny the motion for
judgment on the pleadings and instead grant an alternative writ. Pursuant to
S.Ct.Prac.R. 12.10, we refer this case to a master commissioner to conduct a full
evidentiary hearing on the request for a writ of mandamus. An evidentiary hearing
will allow this court not only to determine whether a writ of mandamus is proper,
but also whether Kimani Ware should be sanctioned for presenting fabricated
evidence to this court.
Disputed facts and allegations of fraud
{¶ 2} This is a classic “he said, she said” case. Ware claims that he
personally provided a request for public records to Booth on August 5, 2022.
According to the verified complaint, Booth “signed for [Ware’s] hand delivered
public records request” seeking seven records and “stated to [Ware] that he would
process [Ware’s] records request the following week.” Ware says that he never
received any records, and after writing Booth three letters to follow up, decided to
sue him, seeking a writ of mandamus and statutory damages. He attached as
Exhibit A to his complaint a “copy of the original” paper slip that Booth allegedly
signed and insists that Booth “has the original ink copy in his possession.”
{¶ 3} Booth swears that he “did not sign Relator’s Exhibit A receipt, keep[]
the original and mak[e] Relator a copy,” and denies receiving any follow-up letters
from Ware. (Emphasis in original.) According to him, the “signature, title, and
date were all hand-written by me, but not on that document.” (Emphasis in
original.) He believes that “Exhibit A is a fraudulent alteration that inmate Ware
has tampered with.” Booth further explains that he “checked Kimani Ware’s TCI
institutional inmate account and did not locate any transaction or cash slip that was
signed on or about August 5, 2022,” meaning that he “would have no reason to
have any interaction with inmate Ware on that date.” (Emphasis in original.)
According to Booth, he did not provide Ware with any records because he has
[SEGMENT 6]
January Term, 2024
“never seen” the public-records request supposedly affiliated with the signed
receipt “and it was never hand-delivered” to him.
Judgment on the pleadings
{¶ 4} On its face, Ware’s account seems farfetched. But none of the
arguments presented by the assistant attorney general representing Booth provides
a basis for judgment on the pleadings. The motion contends that Ware failed to
verify his mandamus complaint, see R.C. 2731.04, with a proper affidavit, see R.C.
147.542. But a review of Ware’s affidavit verifying the petition demonstrates that
it satisfies all the statutory requirements.
{¶ 5} Booth also requests judgment on the pleadings because the evidence
of delivery of Ware’s public-records request is at best “evenly balanced” and thus
“Ware has not met his heightened burden of proof.” This argument evinces a failure
to understand the pleading standard. A motion for judgment on the pleadings does
not allow a court to weigh the evidence; instead, it simply tests the sufficiency of
the complaint.1 See [CITATION], citing [CITATION] (1996). In deciding a motion for judgment on the pleadings, a court must accept
Ware’s factual allegations as true. [CITATION] (Brown, C.J., dissenting). Thus, we deny the motion for
judgment on the pleadings.
Evidentiary hearing
{¶ 6} Ordinarily, if we deny a motion to dismiss or a motion for judgment
on the pleadings in a case like this one, we grant an alternative writ and adopt a
1. Booth’s attorney also relies on the heightened federal pleading standard established in [CITATION] and [CITATION]. However, this court has never
adopted that standard. See [CITATION] (DeWine, J., concurring).
SUPREME COURT OF OHIO
schedule for briefing and the presentation of evidence. See, e.g., [CITATION].
Then we decide the case based on the paper record before us. See, e.g., [CITATION], ¶ 13.
{¶ 7} But this case counsels for a different approach. Booth alleges that
Ware has committed fraud and has submitted a document styled “notice of relator’s
deceitful conduct.” The document outlines a series of cases in which courts have
found that Ware engaged in deceitful conduct similar to what is alleged here. It
also reiterates Booth’s request that we deem Ware a vexatious litigator. We have
raised concerns about Ware’s apparent abuse of the judicial process in the past.
See, e.g., [CITATION], ¶ 48 (noting that record evidence “plausibly supports the
allegations that Ware routinely lied in affidavits and court filings”); see also [CITATION], ¶ 58 (DeWine, J., concurring in part and dissenting in part) (collecting
cases showing that Ware often “attach[es] a fabricated public-records request to the
complaint and alleg[es] that it had been ignored”); [CITATION], ¶ 21, fn. 2 (same); [CITATION] (“parties
ordered to address in their briefs, and permitted to present evidence as to, whether
[Ware] should be sanctioned”).
{¶ 8} Our rules authorize us to refer an original action to a master
commissioner “for the presentation of evidence, hearings, and oral argument.”
S.Ct.Prac.R. 12.10; see, e.g., [CITATION] (“Matter referred to master commissioner * * *
pursuant to S.Ct.Prac.R. 12.10, for the purpose of conducting a hearing.”). In this
case, either Booth is lying, or Ware is lying. The best way to get at the truth is to
January Term, 2024
conduct an evidentiary hearing. At such a hearing, witnesses—including Booth
and Ware—may be called to testify and may be subject to cross-examination. And
the master commissioner will be able to make determinations about the credibility
of the witnesses.
{¶ 9} A full evidentiary hearing will allow us to decide whether a writ of
mandamus is appropriate. And if the hearing establishes that Ware is in fact
engaging in fraud, it will provide a basis for us to impose sanctions and take
appropriate measures to protect the integrity of our judicial proceedings. We may
sanction a party who files an action that we deem frivolous. See S.Ct.Prac.R.
4.03(A). We may also declare a party “who habitually, persistently, and without
reasonable cause engages in frivolous conduct” to be a vexatious litigator.
S.Ct.Prac.R. 4.03(B); see, e.g., [CITATION].
Conclusion
{¶ 10} We deny the motion for judgment on the pleadings. We grant an
alternative writ. The matter is referred to a master commissioner for purposes of
conducting an evidentiary hearing on the request for a writ of mandamus. This
referral encompasses any related matters including, if necessary, a recommendation
to this court for appropriate action under S.Ct.Prac.R. 4.03.
Motion denied
and alternative writ granted.
FISCHER, DONNELLY, BRUNNER, and DETERS, JJ., concur.
KENNEDY, C.J., concurs in judgment only in part and dissents in part and
would not refer the case for a hearing.
SUPREME COURT OF OHIO
STEWART, J., dissents from the judgment and opinion ordering an
alternative writ and would grant respondent’s motion for judgment on the
pleadings.
_________________
Kimani Ware, pro se.
Dave Yost, Attorney General, and John H. Bates, Assistant Attorney
General, for respondent.
_________________
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Galonski, Slip Opinion No. 2024-Ohio-1064.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-1064
THE STATE EX REL. WARE, APPELLANT, v. GALONSKI,1 CLERK, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. Galonski, Slip Opinion No.
2024-Ohio-1064.]
Mandamus—Public Records Act—Statutory damages—On remand, court of
appeals correctly held that requester was not entitled to statutory
damages—Requester failed to prove by clear and convincing evidence that
he delivered public-records requests by certified mail—Court of appeals’
judgment affirmed.
(No. 2023-0268—Submitted November 14, 2023—Decided March 26, 2024.)
APPEAL from the Court of Appeals for Summit County, No. 29622,
2023-Ohio-202.
__________________
1. Ware asserted his claim against Sandra Kurt, who was the Summit County clerk of courts when
the complaint was filed. The current clerk, Tavia Galonski, is automatically substituted as a party
to this action under S.Ct.Prac.R. 4.06(B).
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} The Ninth District Court of Appeals has twice denied appellant,
Kimani Ware, an inmate at the Richland Correctional Institution, a writ of
mandamus ordering appellee, Summit County Clerk of Courts Tavia Galonski, to
produce certain records under the Public Records Act, R.C. 149.43. After the Ninth
District’s first denial of the requested writ, see State ex rel. Ware v. Kurt, 2021-
Ohio-2025, 173 N.E.3d 1268 (9th Dist.), we held that the Ninth District erred in
applying the Rules of Superintendence for the Courts of Ohio as a basis for denying
mandamus relief, State ex rel. Ware v. Kurt, 169 Ohio St.3d 223, 2022-Ohio-1627,
203 N.E.3d 665, ¶ 14-17. We remanded the case to the Ninth District for it to
determine whether Ware was entitled to relief under the Public Records Act. Id. at
¶ 31.
{¶ 2} On remand, the Ninth District determined that Ware was not entitled
to relief under R.C. 149.43 and again denied the writ. 2023-Ohio-202, ¶ 37. Ware
appeals to this court once again. For the following reasons, we affirm the Ninth
District’s judgment.
FACTS AND PROCEDURAL BACKGROUND
{¶ 3} In December 2019, Ware filed a complaint for a writ of mandamus
under R.C. 149.43(C)(1)(b), asking the Ninth District to order the Summit County
clerk of courts to produce certain public records. Ware alleged in his complaint
that he transmitted numerous public-records requests in January 2019 by certified
mail to the clerk’s office. According to Ware, he sent ten public-records requests,
each seeking multiple documents, for a total of 37 different requested documents.
Ware sought documents related to clerk’s office employees, policies, and budget
information, as well as grand-jury reports, certain oaths of office, dockets for a
specific judge for a specified period, and the transcript of a 9-1-1 call from his own
criminal case. Ware alleged that the clerk did not respond to his requests, and he
2
January Term, 2024
sought statutory damages under R.C. 149.43(C)(2) for the clerk’s alleged failure to
produce the requested documents.
{¶ 4} The clerk filed an answer and a motion for summary judgment. In her
motion, the clerk argued that the complaint should be dismissed as moot because
she either had provided Ware with the requested documents or explained why she
was unable to do so. Ware also moved for summary judgment. Ware conceded
that he received some of the requested documents after filing his mandamus
complaint, but he maintained that the clerk failed to provide everything that he had
requested. Ware also asserted that he was entitled to statutory damages because the
clerk had acted in bad faith by ignoring his January 2019 public-records requests
and by failing to promptly provide all the requested documents.
{¶ 5} The Ninth District granted summary judgment in the clerk’s favor,
holding that the Rules of Superintendence, not the Public Records Act, was the
proper vehicle by which to obtain all the documents that Ware had requested except
for one. As to that one document—the transcript of the 9-1-1 call—the Ninth
District determined that Ware was not entitled to mandamus relief for two reasons:
(1) the clerk did not have possession of the transcript and had informed Ware of
that fact and (2) Ware was not otherwise entitled to the transcript even if the clerk
did have it, because Ware had failed to obtain authorization from his sentencing
judge to request that document, as required by R.C. 149.43(B)(8). Accordingly,
the Ninth District concluded that the clerk had no obligation to provide the
transcript to Ware under R.C. 149.43.
{¶ 6} The Ninth District also denied Ware’s request for statutory damages
he sought under R.C. 149.43(C)(2). The court found that Ware was not entitled to
damages for the documents that it determined were subject to Sup.R. 44 through
47, because the Rules of Superintendence do not authorize statutory damages. As
to the transcript of the 9-1-1 call, the Ninth District denied statutory damages after
3
SUPREME COURT OF OHIO
finding that the clerk had no obligation to provide that document under R.C.
149.43(B).
{¶ 7} On appeal, we agreed with the Ninth District’s determination that
Ware was not entitled to the transcript of the 9-1-1 call even if it were in the clerk’s
possession, because Ware had failed to obtain sentencing-court approval under
R.C. 149.43(B)(8). Ware, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665,
at ¶ 24-25. Likewise, we upheld the appellate court’s conclusion that Ware was not
entitled to statutory damages for the transcript, because the clerk had no obligation
to provide that document to Ware under R.C. 149.43. Id. at ¶ 26.
{¶ 8} We held, however, that the Ninth District erred in determining that
the remaining requested documents were governed by the Rules of
Superintendence. We found that out of the 37 documents that Ware had requested,
only 4 fell under the Rules of Superintendence. Id. at ¶ 14-17. In addition, we
found that because the remaining 32 requested documents (excluding the transcript
of the 9-1-1 call) were subject to the Public Records Act, the Ninth District erred
in rejecting Ware’s request for statutory damages under R.C. 149.43(C)(2) on the
ground that those documents were governed by the Rules of Superintendence. Id.
at ¶ 20.
{¶ 9} We also determined that several facts relevant to Ware’s statutory-
damages claim were in dispute. Id. at ¶ 21-23. We therefore remanded the case to
the Ninth District for it to determine: (1) which documents subject to the Public
Records Act were produced to Ware, (2) whether the clerk had legitimate reasons
for rejecting Ware’s requests for the documents that were not produced, and (3)
whether Ware was entitled to statutory damages for the requested documents that
were subject to the Public Records Act. Id. at ¶ 31.
{¶ 10} On remand, the Ninth District again denied the writ. The Ninth
District first found that the clerk had provided documents in her possession, if those
4
January Term, 2024
documents existed, in response to all of Ware’s requests. 2023-Ohio-202 at ¶ 10-
16, 24-25.
{¶ 11} The Ninth District also found that the clerk had legitimate reasons
for rejecting Ware’s requests for documents that were not produced, except for one
document—the clerk-of-courts employee handbook. Id. at ¶ 17-19, 25. The clerk
did provide part of the handbook to Ware at the end of January 2020, but the Ninth
District found that the clerk should have provided the entire handbook or sent Ware
an invoice requesting prepayment of the copying cost. Id. at ¶ 21-22. Even so, the
Ninth District did not grant the writ compelling the clerk to provide the entire
handbook to Ware, because she had already done so in July 2022. Id. at ¶ 23.
{¶ 12} As a final matter, the Ninth District held that Ware was not entitled
to statutory damages. Id. at ¶ 26-36. Ware argued that statutory damages were
appropriate because the clerk had failed to produce the requested records within a
reasonable period as required by R.C. 149.43(B). According to Ware, he submitted
his public-records requests by certified mail in January 2019 but the clerk took over
a year to respond to the requests. The Ninth District disagreed, concluding that
Ware had failed to prove by clear and convincing evidence that he requested the
documents by certified mail in January 2019. 2023-Ohio-202 at ¶ 35-36.
{¶ 13} Ware appealed to this court as of right, but he challenges only the
denial of statutory damages.
ANALYSIS
{¶ 14} Ohio’s Public Records Act requires a public office to make copies
of public records available to any person upon request within a reasonable time.
R.C. 149.43(B)(1). A requester who transmits a written and fairly described public-
records request by an authorized delivery method is entitled to an award of statutory
damages if a court determines that the public office or the person responsible for
the public records failed to comply with an obligation under R.C. 149.43(B). R.C.
149.43(C)(2).
5
SUPREME COURT OF OHIO
{¶ 15} Ware advances two propositions of law. In his first proposition of
law, Ware challenges the Ninth District’s finding that he had failed to demonstrate
that he requested the documents by certified mail in January 2019. In his second
proposition of law, Ware argues that because the clerk failed to comply with her
obligation to produce the requested records within a reasonable period upon
receiving his requests in January 2019, the Ninth District erred in denying him
statutory damages under R.C. 149.43(C)(2). Because both propositions of law rest
on Ware’s claim that he delivered his public-records requests to the clerk in January
2019 by certified mail, we address them jointly.
{¶ 16} R.C. 149.43(C)(2) provides that a requester seeking statutory
damages must prove that the public-records request was sent “by hand delivery,
electronic submission, or certified mail * * * to the public office or person
responsible for the requested public records.” Ware submitted an affidavit with his
summary-judgment motion averring that he sent his public-records requests by
certified mail to the clerk in January 2019. Ware also relies on a copy of a certified-
mail return receipt, which reflects that mail from Ware was delivered to the address
for the Summit County clerk of courts on “1-22-19” and was signed for by “C.O.C.”
According to Ware, “C.O.C.” means “clerk of courts,” which proves that his written
requests were delivered on January 22, 2019, to the public office or person
responsible for the requested public records as required by R.C. 149.43(C)(2).
{¶ 17} For her part, the clerk provided an affidavit from an employee of the
clerk’s office who attested that she first received notice of Ware’s public-records
requests shortly after Ware filed his mandamus action against the clerk’s office at
the end of December 2019. The clerk also submitted an affidavit from an assistant
prosecuting attorney from the Summit County Prosecutor’s Office who averred that
the clerk of courts had no record of Ware’s public-records requests until January 2,
2020, when the clerk was served with the summons relating to Ware’s mandamus
complaint.
6
January Term, 2024
{¶ 18} Ware has the burden of proving by clear and convincing evidence
that he delivered the public-records requests by certified mail on January 22, 2019,
as he alleges. See State ex rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273, 2016-
Ohio-5725, 74 N.E.3d 419, ¶ 27. One problem for Ware is that he points to no
evidence beyond his own assertion that “C.O.C.” means clerk of courts. Ware’s
only argument on this point is set forth in his second proposition of law, in which
he claims that the Summit County clerk of courts has a practice of signing certified-
mail return receipts as “C.O.C.” Ware asks that this court take judicial notice of
Homeless Charity v. Akron, 9th Dist. Summit No. 29334, 2019-Ohio-5330, which
he asserts is proof that the clerk’s office signs for certified mail as “C.O.C.” We
reject Ware’s invitation.
{¶ 19} In Homeless Charity, the Ninth District Court of Appeals considered
whether the Homeless Charity had perfected an administrative appeal to the
common pleas court from a decision of the Akron City Council. See R.C. 2505.04
(an administrative appeal is perfected when a notice of appeal is filed with the
administrative officer or agency). The Homeless Charity had filed instructions with
the Summit County clerk of courts requesting that certified-mail service of the
notice of appeal be made upon the city of Akron’s law director at the law director’s
address. Homeless Charity at ¶ 2. The clerk of courts’ website indicated that
service was made upon the law director, but the certified-mail return receipt
indicated that the recipient of the certified mail was signed by “C.O.C.” at the clerk
of courts’ address. Id. The court of appeals held that even if the notice of appeal
had been served upon the law director, that would not have satisfied the filing
requirement of R.C. 2505.04, because the Homeless Charity had to serve the Akron
City Council to invoke the common pleas court’s jurisdiction over the
administrative appeal. See id. at ¶ 11, 14.
{¶ 20} Contrary to Ware’s contention, the court of appeals did not conclude
in Homeless Charity that the Summit County clerk of courts has a practice of
7
SUPREME COURT OF OHIO
signing certified-mail receipts as “C.O.C.” Although the court of appeals suggested
that “C.O.C.” could mean clerk of courts, it left that issue unresolved. After holding
that service on the law director was not sufficient to invoke the common pleas
court’s jurisdiction, see id., the court of appeals found moot the question whether
the clerk of courts’ failure to timely serve the notice of appeal on the law director
terminated the common pleas court’s jurisdiction, id. at ¶ 13-14. That is, the court
of appeals declined to determine whether the clerk of courts served the law
director—as indicated by the clerk’s website—or whether the clerk of courts
mistakenly served the notice of appeal on itself—as suggested by the certified-mail
receipt. In short, we find that Homeless Charity does not support Ware’s claim that
the Summit County clerk of courts has a practice of signing certified-mail receipts
as “C.O.C.”
{¶ 21} But even were we to accept Ware’s assertion that the clerk of courts
signs certified-mail receipts “C.O.C,” that would not be sufficient to establish that
the envelope received by the clerk’s office actually contained Ware’s public-
records requests. Indeed, public officials in several cases have testified that they
received certified mail from Ware containing innocuous documents, such as
random docket entries, and not the public-records request Ware claimed to have
mailed to their offices.2 We have denied statutory damages to Ware in at least one
case that fits this pattern—when he swore that he had mailed a public-records
request, but the public official denied receiving it. See State ex rel. Ware v.
Giavasis, 163 Ohio St.3d 359, 2020-Ohio-5453, 170 N.E.3d 788, ¶ 32-34 (denying
2. See, e.g., State ex rel. Ware v. Stone, 5th Dist. Stark No. 2023CA00066, 2023-Ohio-3865, ¶ 21
(“The envelope delivered to the prosecutor’s office on April 11, 2022, did not contain a public-
records request”); State ex rel. Ware v. Byrd, 8th Dist. Cuyahoga No. 112488, 2023-Ohio-3158,
¶ 12 (“the Stark County Prosecutor’s Office never received the public records request attached to
Ware’s complaint prior to the filing of the complaint”); State ex rel. Ware v. Fankhauser, 11th Dist.
Portage No. 2023-P-0030, 2023-Ohio-3939, ¶ 4 (“respondent emphasizes that her office has no
record of receiving the alleged request for records underlying this matter” [emphasis in original]).
8
January Term, 2024
statutory damages in part because the clerk’s office “received only a single request
and * * * a search of the office did not locate Ware’s other six requests”).
{¶ 22} We have held that when the evidence on the method-of-delivery of
a public-records request consists of contradictory affidavits or is inconclusive, the
requester has not satisfied his burden under R.C. 149.43(C)(2). See Pietrangelo,
149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419, at ¶ 26-27; see also Giavasis
at ¶ 32 (holding that when the evidence is evenly balanced, the requester has not
satisfied the heightened burden of proof necessary for an award of statutory
damages). In the end, Ware has failed to show by clear and convincing evidence
that he delivered his public-records requests by certified mail on January 22, 2019.
See Pietrangelo at ¶ 27. Accordingly, Ware’s propositions of law lack merit.
CONCLUSION
{¶ 23} Based on the foregoing, we affirm the judgment of the Ninth District
Court of Appeals.
Judgment affirmed.
FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.,
concur.
KENNEDY, C.J., dissents, with an opinion.
_________________
KENNEDY, C.J., dissenting.
{¶ 24} Because the majority uses evidence of other public-records requests
outside the record of this case to deny appellant, Kimani Ware, statutory damages,
I dissent. This case stands independent from Ware’s other public-records-request
cases and should be judged on its merits. Because Ware proved by clear and
convincing evidence that he submitted public-records requests by certified mail in
this case, and because appellee, Summit County Clerk of Courts Tavia Galonski,
failed to provide in a timely manner the records Ware sought in those requests, I
9
SUPREME COURT OF OHIO
would award Ware $1,000 in statutory damages under R.C. 149.43(C)(2). Because
the majority fails to award Ware statutory damages, I dissent.
{¶ 25} To be entitled to an award of statutory damages, a public-records
requester need only show that a written and fairly described request was transmitted
by hand delivery, electronic submission, or certified mail to the public office
responsible for the requested records and that the public-records holder failed to
comply with an obligation under R.C. 149.43(B). R.C. 149.43(C)(2). Here, the
only remaining issue is whether Ware demonstrated by clear and convincing
evidence that he transmitted the public-records requests by certified mail to the
Summit County clerk of courts in January 2019. Ware’s evidence includes his
affidavit that he submitted with his summary-judgment motion, in which he claims
that he transmitted the public-records requests at issue by certified mail and that
those requests were delivered on January 22, 2019. As further evidence, he relies
on a certified-mail receipt that lists the “Summit County Courts of Clerk [sic]” as
the addressee of the certified mail with the delivery address of “205 S. High St.,
Akron, OH 44308 Attn: 10 Public Request for Records [sic].” This side of the
receipt also bears the signature of “C.O.C.” with a delivery date of “1-22-19.” On
the other side of the receipt is the United States Postal Service tracking number
9590 9402 4371 8190 6966 91. Ware’s evidence also includes copies of the ten
public-records requests, and each request is dated January 14, 2019.
{¶ 26} The clerk submitted an affidavit from the office manager of the
clerk’s office, Jackie Ludle. Ludle states in that affidavit that had Ware’s public-
records requests reached the clerk’s office, the requests would have been forwarded
to her and she would have responded to them. The clerk also submitted a cover
letter that was sent to Ware by an assistant prosecuting attorney from the Summit
County Prosecutor’s Office, in which the attorney states that the clerk’s office did
not receive the January 2019 requests and learned of Ware’s requests only when he
filed the mandamus action in December 2019. But there is no testimony from
10
January Term, 2024
anyone who regularly signs for certified mail at the clerk’s office. Nor is there
testimony or other evidence establishing that signing for certified mail with the
initials “C.O.C.” would be contrary to policies of the clerk’s office.
{¶ 27} Instead of examining this evidence to determine whether Ware has
proved by clear and convincing evidence that he transmitted the public-records
requests by certified mail, the majority goes beyond the bounds of this case and
relies on other cases involving Ware. But those cases highlight deficiencies both
in the averments of the clerk and in the policies and procedures of the Summit
County clerk’s office relative to other public offices.
{¶ 28} For instance, in State ex rel. Ware v. Fankhauser, 11th Dist. Portage
No. 2023-P-0030, 2023-Ohio-3939, the Portage County clerk of courts set forth
evidence of an indexing process to which all time-stamped documents that office
receives are subjected and denied that the alleged public-records request at issue
was ever received because it was never indexed in that office’s system. Id. at ¶ 27.
In this case, however, there is no evidence of an indexing system at the Summit
County clerk’s office.
{¶ 29} In State ex rel. Ware v. Stone, 5th Dist. Stark No. 2023CA00066,
2023-Ohio-3865, ¶ 12-16, the Stark County Prosecutor’s Office instituted a policy
for monitoring and documenting any inmate mail received from Ware. In this case,
there is no evidence that the Summit County clerk’s office had such a policy
regarding Ware in place.
{¶ 30} And in State ex rel. Ware v. Byrd, 8th Dist. Cuyahoga No. 112488,
2023-Ohio-3158, ¶ 20, employees of the Cuyahoga County clerk of courts and the
Cuyahoga County prosecutor averred that their departments tracked incoming
public-records requests. They also cited evidence from the mail log at Ware’s
institution that the certified-mail number for the request he claimed to have sent
during a certain period did not appear on the log covering that period. Again, there
is no evidence here that the Summit County clerk’s office tracked incoming public-
11
SUPREME COURT OF OHIO
records requests, and the clerk presented no testimony or other evidence concerning
the mail log from Ware’s institution.
{¶ 31} The clerk’s only evidence that gets to the heart of the matter—
delivery—is conclusory. The office manager claims in her affidavit that she would
have responded to Ware’s public-records requests had they been delivered to her.
But there is no testimony regarding a policy in place that would ensure that a public-
records request would necessarily make its way to her.
{¶ 32} I would hold that the certified-mail receipt reflecting the Summit
County clerk of courts’ acceptance of delivery of mail from Ware on January 22,
2019, together with Ware’s sworn affidavit—that includes copies of his public-
records requests—averring that he sent the requests by certified mail to the clerk,
constitute clear and convincing evidence that the requests were transmitted by
certified mail in January 2019. Because the clerk did not produce the records until
after Ware filed a mandamus action in December 2019, I would award Ware $1,000
in statutory damages under R.C. 149.43(C)(2) for the clerk’s failure to abide by the
requirement in R.C. 149.43(B)(1) to timely respond to Ware’s requests for public
records. Therefore, I dissent from the majority’s judgment affirming the Ninth
District Court of Appeals’ denial of statutory damages.
_________________
Kimani Ware, pro se.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Marrett W.
Hanna, Assistant Prosecuting Attorney, for appellee.
_________________
12
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"1",
"2",
"3",
"4",
"5",
"6"
]
Law
9957980
[SEGMENT 1]
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL ESPECIAL
JESÚS R. DÍAZ REVISIÓN
GONZÁLEZ ADMINISTRATIVA
Recurrente procedente de la
Oficina de
v. Reglamentación de la
KLRA202400355 Industria Lechera
OFICINA PARA LA
REGLAMENTACIÓN DE Querella Núm.: 22-
LA INDUSTRIA
LECHERA DE PUERTO
RICO Sobre: DECOMISO
Recurrida DE LECHE
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 30 de agosto de 2024.
Comparece ante nos, Jesús R. Díaz González ([CITATION]) y nos solicita que revisemos la Resolución y Orden Final
emitida el 5 de junio de 2024, por la Oficina para la Reglamentación
de la Industria Lechera de Puerto Rico ([CITATION]). Dicha
Resolución y Orden Final fue notificada a las partes el 6 de junio de
2024. Mediante dicho dictamen, se declaró Ha Lugar la Contestación
a la Querella, Defensas Afirmativas y Moción de Desestimación que
presentó la parte recurrida y, en consecuencia, se desestimó la
Querella que presentó la parte recurrente.
Por los fundamentos que expondremos a continuación, se
revoca el dictamen recurrido.
I.
El 12 de abril de 2022, la [CITATION] emitió una Orden RE: Cobro
por Contaminación de Leche en Tanque Termo en contra de [CITATION].
En esta, explicó que la producción de leche cruda de su
vaquería incumplió con un parámetro de conteo bacteriano y que la
misma fue decomisada. Indicó, además, que se decomisó veintitrés
Número Identificador
SEN2024_________ KLRA202400355
mil doce (23,012) cuartillos de leche cruda de los cuales tres mil
seiscientos cuarenta y dos (3,642) pertenecen al recurrente y
diecinueve mil trescientos setenta (19,370) cuartillos pertenecen a
otros ganaderos. Consecuentemente, ordenó al recurrente el pago
de diecisiete mil treinta y seis con noventa ($17,036.90)
correspondientes a la leche decomisada con bacteria contenida en
el tanque T-39 de la Vaquería Tres Monjitas, Inc.
Oportunamente, el 10 de mayo de 2022, Díaz González
presentó una Querella ante la ORIL mediante la cual impugnó la
Orden RE: Cobro por Contaminación de Leche en Tanque Termo y
solicitó una Vista Administrativa. El 29 de julio de 2022, la parte
recurrida presentó una Contestación a la Querella, Defensas
Afirmativas y Moción de Desestimación. Acto seguido, el 12 de agosto
de 2022, el Oficial Examinador emitió una Orden mediante la cual
concedió un término de veinte (20) días al recurrente para que
mostrara causa por la cual la Querella no debía ser desestimada.
En respuesta, el 29 de agosto de 2022, el recurrente presentó
una Oposición a Moción de Desestimación. Entretanto, el 5 de junio
de 2024, la ORIL emitió una Resolución y Orden Final mediante la
cual declaró Ha Lugar la Contestación a la Querella, Defensas
Afirmativas y Moción de Desestimación que presentó la parte
recurrida y, en consecuencia, desestimó la Querella que presentó la
parte recurrente.
Insatisfecho con esa determinación, el 8 de julio de 2024, la
parte recurrente presentó una Solicitud Revisión [sic] por el Tribunal
de Apelaciones de Decisión de la Oficina para la Reglamentación de
la Industria Lechera y alegó la comisión de los siguientes errores:
A. Erró la Oficina Para la Reglamentación de la
Industria Lechera Para Puerto Rico (ORIL) al
Declarar Ha Lugar la Moción de Desestimación
presentada por ORIL y en su consecuencia
desestimar la Querella 22-009, ya que la ORIL
incumplió con el debido proceso de ley del KLRA202400355
Querellante-Recurrente cuando no aplicó
correctamente las disposiciones del Reglamento
del 27 de enero de 2017.
B. Es arbitraria y caprichosa la decisión de ORIL en la
Querella 22-009, fundamentada en la Resolución y
Orden Final del 6 de junio de 2024 donde ORIL
aplicó una disposición reglamentaria sobre
“adulterantes e inhibidores en la leche cruda” por
analogía a la situación de la Querella 22-009 que
versa sobre bacterias y límite de celular somáticas,
lo anterior cuando el Reglamento 8889 del 27 de
enero de 2017 contiene penalidades específicas para
el caso de bacterias y límite de células somáticas.
C. Erró la Oficina Para la Reglamentación de la
Industria Lechera Para Puerto Rico (ORIL) cuando
aplicó las disposiciones sobre “adulterantes e
inhibidores en la leche cruda” del Reglamento 8889
del 27 de enero de 2017 a hechos que versan sobre
“conteo de bacterias y límite de células somáticas”,
aun cuando dicho reglamento ya contiene
penalidades y procesos específicos para el caso de
bacterias y límite de células somáticas, lo anterior
creando una penalidad que no está contenida en el
Reglamento 8889.
D. Erró la Oficina Para la Reglamentación de la
Industria Lechera Para Puerto Rico (ORIL) cuando
creó una Regla Legislativa que crea una
consecuencia punitiva por analogía, basada en una
“Notificación a los Productores de Leche Licenciados
por la ORIL y Sujetos al reglamento Núm. 5 de la
ORIL” la cual fue firmada y enviada por el director de
Programa de Calidad de ORIL, quien no es
Administrador de ORIL, y ni siquiera es empleado de
dicha agencia.
Examinada la Solicitud Revisión [sic] por el Tribunal de
Apelaciones de Decisión de la Oficina para la Reglamentación de la
Industria Lechera, este Tribunal emitió una Resolución el 16 de julio
de 2024, concediéndole un término de veinte (20) días a la parte
recurrida para que expresara su posición al recurso. El 5 de agosto
de 2024, la parte recurrida presentó el Alegato de la Recurrida
Oficina de Reglamentación de la Industria Lechera de Puerto Rico.
Con el beneficio de la comparecencia de todas las partes,
procedemos a resolver. KLRA202400355
II.
A. Revisión judicial de determinaciones administrativas
La Ley de Procedimiento Administrativo Uniforme del
Gobierno de Puerto Rico, Ley Núm. 38-2017, según enmendada, (3
LPRA sec. 9601 et seq.) (LPAU), se creó a los fines de uniformar los
procedimientos administrativos ante las agencias.
Consecuentemente, desde la aprobación del procedimiento provisto
por la LPAU, los entes administrativos están precisados a conducir
sus procesos de reglamentación, adjudicación y concesión de
licencias y permisos de conformidad con los preceptos de este
estatuto y el debido proceso de ley. [CITATION]
La Sección 4.1 de la LPAU, dispone que las decisiones
administrativas finales pueden ser revisadas por el Tribunal de
Apelaciones. (3 LPRA sec. 9671). La finalidad de esta disposición es
delimitar la discreción de los organismos administrativos para
asegurar que estos ejerzan sus funciones conforme a la ley y de
forma razonable. [CITATION] Véase, además, [CITATION] Es decir, la revisión judicial
permite a los tribunales garantizar que las agencias administrativas
actúen dentro de los márgenes de las facultades que le fueron
delegadas por ley. [CITATION] A su vez, posibilita el poder
constatar que los organismos administrativos “cumplan con los
mandatos constitucionales que rigen el ejercicio de su función,
especialmente con los requisitos del debido proceso de ley”. Íd. Así,
la revisión judicial constituye el recurso exclusivo para revisar los
méritos de una decisión administrativa sea esta de naturaleza KLRA202400355
adjudicativa o de naturaleza informal. [CITATION],
supr; [CITATION], 168 DPR 527 (2006).
[SEGMENT 2]
Es norma reiterada que las decisiones de los organismos
administrativos están revestidas de una presunción de regularidad
y corrección, [CITATION]. Esto
debido a que, mediante esta norma se reconoce el peritaje del que
gozan los organismos administrativos en aquellas materias que le
han sido delegadas por ley. [CITATION], 185 DPR 800, 821
(2012).
Nuestro máximo Foro ha establecido que, al ejercer la revisión
judicial los tribunales no pueden descartar de forma absoluta la
determinación de una agencia, sino que primero tienen que
examinar la totalidad del expediente y determinar si la
interpretación de la agencia representó un ejercicio razonable de su
discreción administrativa, así fundamentado en la pericia particular
de esta, en consideraciones de política pública o en la apreciación
de la prueba. [CITATION].
Cónsono con lo anterior, la sección 4.5 de la LPAU establece
que los tribunales deben sostener las determinaciones de hechos de
las agencias si están basadas en "evidencia sustancial que obra en
el expediente administrativo". (3 LPRA sec. 9675). Como vemos, la
norma anterior nunca ha pretendido ser absoluta. Por eso, el
Tribunal Supremo ha resuelto con igual firmeza que los tribunales
no pueden extender un sello de corrección, so pretexto de
deferencia, a las determinaciones o interpretaciones administrativas
irrazonables, ilegales, o simplemente, contrarias a derecho. [CITATION]. KLRA202400355
Sin embargo, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION] Por ende, "los tribunales
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". [CITATION] Lo anterior responde a
la vasta experiencia y conocimiento especializado que tienen las
agencias sobre los asuntos que le son encomendados. [CITATION]
Al revisar las decisiones de las agencias, el criterio rector que
debe guiar a los tribunales es la razonabilidad de la actuación,
aunque ésta no tiene que ser la única o la más razonable. [CITATION] Por lo tanto,
al momento de examinar un dictamen administrativo se determina
que: (1) la decisión administrativa no está basada en evidencia
sustancial; (2) la agencia erró en la aplicación de la ley (3) el
organismo administrativo actuó de manera irrazonable, arbitraria o
ilegalmente; o (4) su actuación lesiona derechos constitucionales
fundamentales, entonces la deferencia hacia los procedimientos
administrativos cede. [CITATION]
En esta tarea, los foros judiciales analizarán los aspectos
siguientes: (1) si el remedio concedido por la agencia fue apropiado;
(2) si las determinaciones de hecho que realizó la agencia están
sostenidas por evidencia sustancial, y (3) si las conclusiones de
derecho fueron correctas. [CITATION] Mientras que, las determinaciones de hecho
se deben sostener si las mismas se basan en evidencia sustancial
====== End of Part ====== KLRA202400355
que surja de la totalidad del expediente administrativo, [CITATION], las
determinaciones de derecho pueden ser revisadas en su totalidad.
[CITATION].
Si bien es cierto que la revisión judicial no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo, [CITATION], los
tribunales revisores descartarán el criterio de los entes
administrativos cuando "no se pueda hallar fundamento racional
que explique o justifique el dictamen administrativo". [CITATION].
Si la interpretación y la aplicación del
derecho no es correcta, el foro apelativo está obligado a intervenir.
[CITATION].
"En esas circunstancias, [el foro apelativo] cederá la deferencia que
merecen las agencias en las aplicaciones e interpretaciones de las
leyes y los reglamentos que administra". [CITATION]. Véase, además, [CITATION].
B. Oficina para la Reglamentación de la Industria Lechera de
Puerto Rico
La Ley Núm. 34 del 11 de junio de 1957, según enmendada,
(5 LPRA sec. 1092 et seq.) (Ley Núm. 34-1957), conocida como la Ley
para Reglamentar la Industria Lechera se creó con el propósito de
establecer un organismo regulador de las relaciones existentes
dentro de la industria lechera, así como de establecer las bases
definitivas para el desarrollo y la estabilidad de esta. Asimismo, tiene
el fin de buscar la forma de distribuir y mercadear de forma eficiente
el producto principal y sus derivados. Exposición de Motivos de la
Ley Núm. 34-1957, supra. KLRA202400355
Consecuentemente, la Ley [CITATION], supra, creó la ORIL.
Así, al Administrador de la ORIL se le otorgó el poder de
reglamentación para solucionar de forma adecuada las situaciones
que se puedan presentar en la industria lechera. Exposición de
Motivos de la Ley [CITATION], supra. Las facultades del
Administrador de la ORIL surgen del Artículo 5 de la Ley [CITATION]
(CITATION). Respecto a los poderes generales, el
Administrador de la ORIL tendrá el poder para investigar y
reglamentar todas las fases de la industria de la leche y los
productos derivados de esta, incluyendo la producción, elaboración,
esterilización, manufactura, almacenaje, compra y venta,
transportación y distribución del producto principal y sus derivados.
Artículo 5 (a) de la Ley [CITATION], supra. Además, el
Administrador está facultado para desarrollar y mantener
condiciones satisfactorias de mercadeo tendientes a proteger la
producción y distribución de la leche y los productos derivados de
esta. Artículo 5 (b) (3) de la Ley [CITATION], supra. Asimismo, el
Administrador de la ORIL podrá establecer normas de elaboración,
esterilización, clasificación, empaque, envase, enlatado, rotulación,
calidad y presentación de la leche y de sus productos derivados.
Artículo 5 (b) (5) de la Ley [CITATION], supra.
De conformidad con las facultades concedidas por la Ley
[CITATION], supra, el Administrador de la ORIL aprobó el
Reglamento Núm. 4565 del 30 de octubre de 1991, según
enmendado, conocido como el Reglamento Núm. 5 de la Oficina de
Reglamentación de la Industria Lechera para Establecer las Normas
que Regirán la Calidad de la Leche en Todas sus Fases de
Producción, Elaboración y Venta y para Derogar el Regl. Núm. 3
Aprobado Sobre el Mismo Particular el 14 de septiembre de 1985 KLRA202400355
(Reglamento Núm. 5).1 El Reglamento Núm. 5 de la ORIL pauta las
normas que rigen la calidad y los aspectos sanitarios de la leche en
todas las fases de producción, elaboración y venta. Sección 3 del
Reglamento Núm. 5 de la ORIL.
Con relación a la controversia que nos atañe, la Sección 6 del
Reglamento Núm. 5 dispone, entre otras cosas, que:
[e]l conjunto de propiedades que determinarán la calidad de
la leche fresca que se produzca, elabore o se venda en Puerto
Rico, serán los establecidos en este Reglamento y en el
Reglamento Sanitario Núm. 138 y la Ley Núm. 77 de
Adulteración de Leche del 13 de agosto de 1957, del
Departamento de Salud.
A continuación se menciona aquel conjunto de propiedades
más significativas, que se analizarán para determinar la
calidad del producto:
A- Leche cruda:
[…]
) Límite Bacteriano – La leche cruda de cada vaquería en
particular no excederá de 100,000 colonias por mililitro al
momento de la aprobación de este reglamento. Es la política
pública de la Oficina de Reglamentación de la Industria
Lechera lograr que la leche cruda de cada vaquería en
particular no exceda setenta mil (70,000) colonias por
mililitro. Para ello, se establece una reducción paulatina a
razón de diez mil (10,000) colonias por mililitro anualmente
a partir de la aprobación de este reglamento hasta lograr la
reducción. El requisito de conteo bacteriano se establece
como sigue: al 1 de enero del 2018 sea de 90,000 colonias
por mililitro, al 1 de enero de 2019 sea de 80,000 colonias
por mililitro y al 1 de enero de 2020 sea de 70,000 por
mililitro. La leche cruda mezclada no excederá de trescientos
mil (300,000) colonias por mililitro.
[SEGMENT 3]
Cónsono con lo anterior, la Sección 6 (H) del Reglamento Núm.
5 de la ORIL establece que:
H. Leche cruda, leche pasteurizada, ultrapasteurizada,
aséptica y productos de leche no aptos para el consumo
humano:
Toda leche y productos de leche que en su examen químico,
bacteriológico o físico demuestren las condiciones señaladas
a continuación se consideraran impropios para el consumo
humano y de estimarse necesario, contra los mismos se
emitirá una orden de detención hasta tanto se confirme el
resultado. En dichos casos de confirmarse la condición, estos
serán decomisados. De no requerir confirmación se
decomisarán inmediatamente. Estos son:
1 El Reglamento Núm. 5 de la ORIL fue enmendado por el Reglamento Núm. 8889
del 29 de diciembre de 2016. El Reglamento Núm. 8889 fue efectivo el 27 de enero
de 2017 y era el Reglamento vigente a la fecha de los hechos del caso que nos
ocupa. There are no court ruling citations in the provided part of the court ruling. Therefore, no replacements are necessary. The text remains unchanged:
KLRA202400355
1) Contienen antibióticos o cualquier substancia inhibidora,
en exceso de la tolerancia establecida por este
Reglamento.
2) Contienen cualquier substancia venenosa o deletérea o
extraña a la leche o productos de leche, que lo hagan
perjudicial a la salud pública.
3) Contienen cualquier sustancia añadida no autorizada,
que altere su volumen, peso, calidad o su composición
normal.
4) Han sido producidos, transportados, almacenados,
procesados, envasados, empacados o mantenidos bajo
condiciones antihigiénicas.
5) Provienen de animales enfermos, extenuados,
alimentados o tratados con productos contraindicados
para animales lactantes.
6) Que contengan calostro, sangre, pus o excreta.
7) Inadecuadamente pasteurizados, ultrapasteurizados o
asépticamente procesados.
8) Leche o productos de leche pasteurizados,
ultrapasteurizados o asépticamente procesados que en el
análisis de una sola muestra demuestren un recuento
bacteriano y/o de coliformes total, en exceso de los límites
permitidos.
9) Leche o productos de leche pasteurizados que resulten
positivos a la prueba de fosfatasa.
10) Productos de leche elaborados con leche anormal, según
definida.
11) Leche o productos de leche expuestos a la contaminación
por el polvo, insectos, roedores, otras sabandijas, así
como de cualquier otro contaminante.
12) Leche o productos de leche de procedencia clandestina.
13) Que provengan de goteo, sobrellenado o derrame de
botellas, envases, tanques o cualquier otro equipo.
14) Leche o productos de leche devueltos por los
consumidores y comerciantes a las plantas o centros de
pasteurización o elaboración.
15) Leche y productos de leche asépticamente procesados
cuyos envases estén aventados, con fecha de expiración
vencida o que el análisis de una sola muestra demuestre
crecimiento bacteriano.
16) Leche cruda pasteurizada, ultrapasteurizados o
asépticamente procesada congelada.
17) Leche o productos de leche que muestren color, olor o
sabor anormal.
18) Leche o productos de leche procedentes de
establecimientos cubiertos por este Reglamento, a los
cuales se les haya suspendido la licencia o el recogido de
leche.
19) Leche o productos de leche aptos para el consumo
humano mezclados con leche o productos de leche
adulterados.
20) Leche o productos de leche que presenten cualquier otra
condición que se considere peligrosa a la salud pública.
21) Leche y productos de leche cuya fecha de expiración este
vencida.
22) Leche pasteurizada que se vaya a reprocesar y hayan
transcurrido más de tres (3) días de haberse elaborado.
23) Leche pasteurizada que se haya reprocesado con leche
que salió de las facilidades de la Planta Elaboradora.
24) Leche cruda, pasteurizada o ultra-pasteurizada que no
cumpla con los requisitos de refrigeración establecidos en
este reglamento.
25) Leche y productos de leche elaborados sin poseer licencia
de ORIL. KLRA202400355
26) Cualquier leche o producto de leche que por las
circunstancias evaluadas, el Administrador entienda que
no está apta para consumo humano.
A su vez, la Sección 7 del Reglamento Núm. 5 de la ORIL
establece el procedimiento para determinar el cumplimiento con las
normas de calidad bacteriológicas, químicas y de temperatura para
leche cruda y pasteurizada y productos de leche pasteurizados.
Específicamente, la Sección 7 establece, entre otras cosas, que:
A. Leche Cruda:
) A Nivel de Finca
El Administrador, a través de sus representantes
autorizados realizará muestreos de todas las vaquerías, con
licencia de su Oficina, cuantas veces lo estimare necesario.
Toda muestra se tomará y se lacrará en presencia del
ganadero o alguna persona encargada y se le dejará una
muestra sellada y lacrada al ganadero, identificada con la
firma, signo, iniciales, número u otra identificación de la
persona que tome la muestra. Disponiéndose, que, de no
encontrarse el ganadero o persona encargada en el momento
de tomar la muestra, esta se procederá a tomar obviándose
la presencia del ganadero o su encargado. Estas muestras
serán además de las muestras que puedan tomar los
funcionarios de cualquier Agencia Reglamentadora.
Si la leche a ser inspeccionada o transportada se
encuentra más fría de lo normal, el inspector y/o el
transportador de leche cruda calentará(n) la leche previo a
olerla. De igual manera, si hubiese olores a cloro,
detergentes, pintura, alimentos u otros olores lo
suficientemente fuertes, en el cuarto de heche o cerca de
este, que impidan realizar la prueba de olor, no se recogerá
o se inspeccionará la leche y se solicitará el recogido a
condición, con cargo al ganadero.
Cuando dos (2) de las últimas cuatro (4) muestras
consecutivas, tomadas en días distintos en una vaquería
para conteo bacteriano, células somáticas o temperatura, no
reunieran todos o algunos de los requisitos especificados en
la Sección 6 de este Reglamento, el Administrador procederá
a enviar un Inspector, quien le notificará por escrito con
entrega personal, la condición encontrada al ganadero o
persona encargada. Además, se procederá a tomar una
muestra adicional después de tres (3) días de la notificación
del Inspector, pero antes de que transcurran veintiún (21)
días después de la muestra.
En caso de esta muestra resultar fuera de los requisitos
señalados, se procederá a suspender el recogido de leche y
se decomisará un mínimo de cuatro (4) ordeños. Se
continuará el muestreo diario y se reanudará el recogido
cuando dos muestras consecutivas estén de acuerdo al
Reglamento. En caso que el recogido haya sido suspendido
por dos (2) días o más, bastará que una muestra cumpla con
el Reglamento para reanudarlo. En todo momento que se
tome una muestra, se le dejará otra muestra lacrada al
productor de leche. KLRA202400355
En caso de que una muestra resulte con sustancias
inhibidoras, adulterantes o que no cumpla con el requisito
de crioscopía, se procederá a notificar al ganadero, a
suspender el recogido de leche de inmediato y a decomisar
por lo menos dos (2) ordeños. Se hará un muestreo diario de
la vaquería, reinstalándose el recogido tan pronto una (1)
muestra este dentro de las normas. En los casos donde la
muestra exceda el límite de cloruro y a su vez presente
cualquier nivel de lactosa, sólidos totales, grasa, proteínas y
crioscopia fuera de la norma que presenta el historial
químico el hato del ganadero, se creará una presunción de
adulteración en la leche y será investigado como tal. Por esto,
se ordenará una suspensión de recogido por tiempo
indefinido y se iniciará un proceso de suspensión temporera
de la licencia de la ORIL. Toda la leche que se produzca
durante la suspensión del recogido y el proceso de
suspensión de la licencia, será decomisada y corresponderá
al ganadero cubrir los costos asociados a esta. Sin embargo,
un resultado de cloruro fuera de norma, pero con resultados
en los niveles de lactosa, sólidos totales, grasa, proteínas y
crioscopía cónsonos con su historial químico, conllevará el
inicio de una investigación exhaustiva en el hato. Durante
todo el tiempo que dure tal investigación, toda la leche se
recogerá a condición y le corresponderá al ganadero cubrir
los costos de transporte y decomiso de la leche, de esta no
cumplir con los parámetros de calidad.
[SEGMENT 4]
[…]
) A Nivel de Recogido
Toda planta o centro de pasteurización o elaboración que
tenga duda de la calidad de la leche recibida en cualquiera
de sus rutas de recogido enviará el tanque termo de leche al
Laboratorio de la ORIL para análisis. De estar dicha leche
fuera de los requisitos de calidad, cuya violación conlleve
decomiso según establecidos en este reglamento, esta se
decomisará. Además, se tomarán muestras periódicas de los
tanques termo en tránsito de la finca a la planta o centro de
pasteurización o elaboración y en la misma. Aquellos casos
en los que la muestra determine una violación a los
parámetros que conlleve decomiso, y por tanto haya que
decomisar el contenido del camión termo, se identificará el o
los ganaderos responsables de la condición. Se iniciará un
muestreo en la vaquería y en caso de ser necesario se le
aplicarán los procedimientos establecidos en esta sección.
En el caso que cualquier ganadero cause decomiso de
leche de un tanque termo por estar la leche cruda
contaminada con antibiótico, drogas, inhibidores u otros
adulterantes, crioscopia o por exceder el límite de acidez de
titulable vendrá obligado a pagar el costo de disposición y el
volumen de la leche dañada decomisada.
Esta sanción se impondrá cuando se haya corroborado
que la leche recogida a dicho ganadero fue la causante de la
contaminación de la restante leche en el camión. La
corroboración se realizará mediante el análisis de una
muestra oficial, tomada por esta Oficina, por cualquier
Agencia Reglamentadora o por una muestra del
transportador de leche. Siempre que se tome una muestra
para un análisis de laboratorio, se dejará una muestra de
corroboración sellada y lacrada para que el ganadero
constate el hecho relativo a la condición de su leche
producida en esta ocasión. En el caso de los transportadores
de leche, toda muestra que tome será lacrada. Si se KLRA202400355
determinará que la leche que causó la contaminación del
camión de recogido proviene de dos o más ganaderos, estos
pagarán la totalidad de la leche dañada en proporción a la
cantidad de leche aportada al volumen del camión. En caso
de que el contenido de leche en un camión de recogido salga
contaminado con antibiótico, inhibidores u otros
adulterantes, tenga niveles de crioscopia y acidez titulable
fuera de norma y ninguna de las muestras de leche de los
ganaderos resulte contaminada, será responsabilidad de la
planta asumir los costos del decomiso de leche. El
transportador de leche que haya realizado la ruta, se le
suspenderá la licencia y se iniciará un procedimiento
administrativo con la intención de revocarle la misma.
[…].
C. El Derecho Administrativo y la delegación de poderes a las
agencias administrativas
Según establece nuestro ordenamiento jurídico, el Derecho
Administrativo regula los trámites, los poderes y las
responsabilidades de las agencias administrativas, las exigencias
legales para efectuar tales acciones y los remedios que tienen
disponibles las partes afectadas por la actuación de una agencia. [CITATION]. Así pues, la medula de esta materia jurídica se basa en
el proceder de las agencias que están adscritas al Poder Ejecutivo.
[CITATION]. Así, el entendido es que
la Asamblea Legislativa prescribe una norma de carácter general y
esta es complementada por la intervención de la agencia
administrativa, que, con su expertise, detalla la legislación
aprobada. Íd.
Consecuentemente, es la Asamblea Legislativa el Poder
Constitucional llamado a darle vitalidad a este andamiaje. [CITATION]. En ese sentido, el Artículo III de
la Sección 16 de la Constitución de Puerto Rico concede a la
Asamblea Legislativa la facultad de crear, consolidad o reorganizar
departamentos ejecutivos y definir sus funciones. Art. III, Sec. 16,
ELA, LPRA, Tomo I. De esta forma, tradicionalmente, la Asamblea
Legislativa ha delegado a las agencias administrativas adscritas al KLRA202400355
Poder Ejecutivo una serie de facultades, ya sea a través de la ley
orgánica de la agencia o a través de leyes especiales. [CITATION].
Así pues, dentro de ese marco de delegación, las agencias
administrativas gozan de dos poderes esenciales: el poder de
reglamentar al ejercer funciones cuasi-legislativas y el poder de
adjudicar controversias al ejercer funciones cuasi-judiciales dentro
de la pericia de la agencia. [CITATION]. A esos efectos,
les corresponde a los organismos administrativos adherirse
estrictamente a los poderes que les han sido delegados. [CITATION]. Por lo tanto, cuando se
delega una función especifica a una agencia, esta no puede
excederse de los límites establecidos expresa o implícitamente en la
ley o por clara implicación de esta. [CITATION].
De igual forma, los tribunales no podemos expandir el ámbito
de acción que estableció el legislador. [CITATION], citando a [CITATION]. Asimismo, las actuaciones administrativas deben ajustarse
al poder delegado y en ausencia de un mandato legislativo expreso
o implícito, aquella actuación administrativa que no obedezca el
poder conferido sería una actuación ultra vires de la agencia y, por
ende, nula. [CITATION]. Véase,
además, [CITATION]. KLRA202400355
D. Procedimiento de reglamentación
En nuestro ordenamiento jurídico, las agencias
administrativas gozan del poder cuasilegislativo de aprobar reglas y
reglamentos. [CITATION] En esa encomienda, las agencias administrativas pueden
formular reglas no legislativas y reglas legislativas. Íd. Las reglas no
legislativas constituyen pronunciamientos administrativos que no
alteran los derechos ni las obligaciones de los individuos. Íd. Véase,
además, [CITATION] Por lo
cual, la LPAU dispensa del procedimiento formal de la
reglamentación en esos casos. [CITATION]
Las reglas no legislativas pueden clasificar en tres grupos: (1)
reglas procesales; (2) declaraciones interpretativas; y, (3)
declaraciones de política general. [CITATION], citando a H. Meléndez Juarbe, Derecho Administrativo, 73
REV. JUR. UPR 509, 510 (2004). En consecuencia, de trata de
cartas circulares, cartas normativas, directrices, memorandos y
demás documentos menos formales que emiten las agencias para
darle uniformidad a sus procedimientos internos, pautar su
discreción o interpretar las leyes que administran. [CITATION]
Por otra parte, una regla legislativa crea derechos, impone
obligaciones y establece un patrón de conducta que tiene fuerza de
ley. [CITATION] Así pues, la Asamblea Legislativa ha
sido consecuente y clara al disponer de un procedimiento específico
para la aprobación, revocación y enmienda de las reglas legislativas.
[CITATION] Esto, pues “la
importancia que reviste este tipo de regla o reglamento, y el efecto
que puede acarrear para el público en general […] requiere el KLRA202400355
cumplimiento del procedimiento de reglamentación según se
establece en la LPAU”. Íd., citando a [CITATION].
Por consiguiente, la LPAU exige que las agencias
administrativas cumplan con determinados requisitos al “aprobar,
enmendar o derogar una regla o reglamento”. Sección 2.1 de la LPAU
(3 LPRA sec. 9611). A esos efectos, todo procedimiento de
reglamentación debe cumplir con cuatro requisitos básicos: (1)
notificar al público la reglamentación que se aprobará; (2) proveer
oportunidad para la participación ciudadana, que incluya vistas
públicas cuando sea necesario u obligatorio; (3) presentar la
reglamentación ante el Departamento de Estado para la aprobación
correspondiente, y (4) publicar la reglamentación aprobada. Sección
2.1, 2.2, 2.3, 2.8 y 2.11 de la LPAU (3 LPRA secs. 9611-9613, 9618
y 9621).
En reiteradas ocasiones nuestro máximo Foro ha dispuesto
que, todos estos constituyen requisitos imprescindibles y de
ineludible cumplimiento. [CITATION]. El cumplimiento de ese proceso es indispensable para poder
reconocerle fuerza de ley a la regla promulgada, ya que ello forma
parte de las garantías procesales que permean todo el estatuto. Íd.,
citando a [CITATION]. Por lo tanto, será nulo todo reglamento que se adopte en
violación a las disposiciones de la LPAU. [CITATION].
Asimismo, la mera clasificación de un reglamento como
[SEGMENT 5]
legislativo o interno no es determinante. [CITATION]. Para
determinar si una regla o un reglamento es legislativo o interno se
utiliza el examen del impacto sustancial. [CITATION] KLRA202400355
[CITATION], supra. Si la reglamentación modifica derechos
sustantivos o crea obligaciones estamos ante un reglamento
legislativo. Íd.
III.
Por estar los señalamientos de error íntimamente
relacionados, discutiremos los cuatro (4) señalamientos de error de
forma conjunta. Veamos.
En su recurso, Díaz González planteó que erró la ORIL al
declarar Ha Lugar la Moción de Desestimación presentada por la
ORIL y, en consecuencia, desestimar la Querella, ya que la ORIL
incumplió con el debido proceso de ley cuando no aplicó
correctamente las disposiciones del Reglamento Núm. 8889 del 27
de enero de 2017. Sostuvo que es arbitraria y caprichosa la decisión
de ORIL en la Querella, fundamentada en la Resolución y Orden Final
del 6 de junio de 2024, donde ORIL aplicó una disposición
reglamentación sobre “adulterantes e inhibidores en la leche cruda”
por analogía a la situación de la Querella que versa sobre bacterias
y límite celular somáticas, lo anterior cuando el Reglamento Núm.
8889 del 27 de enero de 2017 contiene penalidades específicas para
el caso de bacterias y límite de células somáticas.
Asimismo, señaló que erró la ORIL cuando aplicó las
disposiciones sobre “adulterantes e inhibidores en la leche cruda”
del Reglamento Núm. 8889 del 27 de enero de 2017 a hechos que
versan sobre “conteo de bacterias y límite de células somáticas”, aun
cuando dicho reglamento ya contiene penalidades y procesos
específicos para el caso de bacterias y límite de células somáticas,
lo anterior creando una penalidad que no está contenida en el
Reglamento Núm. 8889. Indicó, además, que erró la ORIL cuando
creó una regla legislativa que crea una consecuencia punitiva por
analogía, basada en una “Notificación a los Productores de Leche
Licenciados por la ORIL y Sujetos al reglamento Núm. 5 de la ORIL” KLRA202400355
la cual fue firmada y enviada por el director del Programa de Calidad
de ORIL, quien no es administrador de ORIL, y ni siquiera es
empleado de dicha agencia.
De una lectura detallada de la Resolución y Orden Final
emitida por la ORIL, podemos colegir que la ORIL aplicó a la
controversia ante su consideración la “Notificación a los Productores
de Leche Licenciados por la ORIL y Sujetos al reglamento Núm. 5 de
la ORIL” (Notificación). Dicha Notificación, fue firmada y enviada por
el director del Programa de Calidad de ORIL, quien no es el
Administrador de ORIL. Al evaluar puntillosamente la Notificación
en cuestión, podemos concluir, según el derecho que antecede, que
esta es una regla legislativa. Esto, pues crea derechos, impone
obligaciones y establece un patrón de conducta que tiene fuerza de
ley. [CITATION]
Es decir, la Notificación, que no fue emitida propiamente por
el Administrador de ORIL, les notificó a los Productores de Leche
que el incumplimiento con los parámetros de células somáticas y
bacterias en la leche recogida en las vaquerías y cuya mezcla con la
leche producida por otras vaquerías de dicha ruta de recogido,
causen el incumplimiento de los parámetros de calidad del termo o
compartimiento por uno o ambos parámetros (mayor a 750,000
escc/ml en células somáticas y/o mayor a 300,000 col/mi en el
conteo bacteriano), se procedería al análisis de las muestras
individuales para determinar quien fue el productor que causo la
violación. Además, la Notificación dispone que aquel o aquellos
ganaderos cuya muestra estuvo fuera del parámetro, tendrán que
pagar el valor total de dicha leche decomisada. A todas luces, esta
Notificación es una regla legislativa que debió seguir el
procedimiento de reglamentación según se establece en la LPAU, KLRA202400355
pues tiene fuerza de ley que afecta los derechos de los Productores
de Leche.
Al revisar el Reglamento Núm. 5, hemos constatado que la
disposición incluida en la Notificación no está contenida en dicho
reglamento. Por lo tanto, podemos inferir que se intentó enmendar
el Reglamento Núm. 5 a través de la Notificación y sin seguir el
procedimiento establecido en la LPAU. Esto, aun cuando la misma
Notificación reconoce la existencia del Reglamento Núm. 5 que
regula los hechos que pretende modificar la Notificación y que el
Reglamento Núm. 5 no provee la sanción que se pretende imponer
mediante la Notificación. Por lo tanto, la actuación de la ORIL de
poner en vigor una Notificación emitida por un funcionario que no
es el Administrador de ORIL y sin seguir el procedimiento
establecido en nuestro ordenamiento jurídico, es una ultra vires y,
en consecuencia, nula.
De otro lado, de la Resolución y Orden Final surge que la ORIL
aplicó por analogía las reglas sobre leche contaminada con
adulterantes, antibióticos, drogas e inhibidores aun cuando la leche
cruda perteneciente al recurrido presuntamente incumplía con un
parámetro de bacterias. De una lectura de la Orden RE: Cobro por
Contaminación de Leche en Tanque Termo emitida por la ORIL en
contra de Díaz González, no surge cual fue el conteo bacteriano que
arrojó la producción de leche que estaba fuera de las normas
establecidas; por lo cual, la notificación de la violación no fue
adecuada.
Asimismo, aun en el supuesto que el conteo bacteriano fuese
mayor a 100,000 colonias por mililitro, la ORIL debió aplicar la
Sección 7 del Reglamento Núm. 5 que establece el procedimiento
para determinar el cumplimiento con las normas de calidad
bacteriológicas, químicas y de temperatura para la leche cruda.
Específicamente, debió aplicar la Sección 7 (A) (1) a nivel de finca. KLRA202400355
Dicha sección atiende el incumplimiento con un parámetro
bacteriano, en lugar de aplicar la Sección 7 (A) (2) a nivel de recogido
que únicamente trata el decomiso de leche cruda con antibiótico,
drogas, inhibidores u otros adulterantes, crioscopia o por exceder el
límite de acidez; que no es el caso ante nos.
En conclusión, incidió la ORIL al emitir una Resolución y
Orden Final mediante la cual aplicó una Notificación que tiene el
efecto de una regla legislativa. Como tal, su aprobación tenía que
seguir el procedimiento reglamentario que ordena la LPAU, lo que
no ocurrió. Al director del Programa de Calidad de ORIL promulgar
la Notificación, cuyo efecto es uno legislativo, y antes de su
aplicación, la ORIL debió cumplir con los cuatro (4) requisitos
básicos dispuestos en la LPAU para aprobar, enmendar o derogar
un reglamento.
Además, incidió la ORIL al aplicar por analogía una
disposición reglamentaria aun cuando había una disposición
reglamentaria que atendía la situación. Así pues, la actuación de la
ORIL fue arbitraria y caprichosa. Si bien es cierto que los tribunales
apelativos debemos otorgar amplia deferencia a las decisiones
emitidas por las agencias administrativas, debido a que estas
cuentan con un criterio especializado, ello no significa que no
intervendremos cuando se presente un claro abuso de discreción.
Por lo tanto, procede que se revoque y se deje sin efecto la
Resolución y Orden Final emitida por la ORIL el 5 de junio de 2024.
III.
Por los fundamentos antes expuestos, revocamos el dictamen
recurrido. Having reviewed the provided part of the court ruling, it does not contain any court ruling citations. Therefore, no replacements with `[CITATION]` or `[CITATION]` are necessary.
Here is the text with no changes:
KLRA202400355
Lo acordó y manda el Tribunal y lo certifica la Secretaría del
Tribunal de Apelaciones.
La Jueza Álvarez Esnard concurre sin voto escrito.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL IX
REVISIÓN
R&B POWER, INC. ADMINISTRATIVA
Procedente de la
Recurrente Junta de Subastas
de la Administración
v. de servicios
KLRA202400262 Generales de Puerto
JUNTA DE SUBASTAS Rico
DE LA
ADMINSITRACIÓN DE Caso núm.: JR-22-
SERVICIOS
[SEGMENT 6]
GENERALES DE
PUERTO RICO Sobre: SOLICITUD
DE REVISIÓN DE
Recurrida RECHAZO GLOBAL
DE SUSBASTA
Panel integrado por su presidente, el Juez Rivera Colón, el Juez
Ronda Del Toro y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 18 de julio de 2024.
Comparece ante nos R&B Power, LLC (R&B o parte recurrente)
mediante un Recurso de Revisión de Subasta. Nos solicita la
revocación de la Resolución de Rechazo Global emitida y notificada
el 31 de agosto de 2022 por la Junta de Subastas de la
Administración de Servicios Generales (Junta de Subastas o parte
recurrida). Mediante el referido dictamen, la agencia resolvió que
R&B incumplió con la Especificación Núm. UEA-23-018.7, que
establece la fuerza de caballos correspondiente a las excavadoras
compactas objeto de la subasta.
Por los fundamentos que expondremos a continuación, se
confirma el dictamen recurrido.
I.
El 19 de julio de 2022, la Junta de Subastas publicó una
invitación a la Subasta Formal 23-J-00121 (Subasta 23J) sobre la
adquisición de unas excavadoras compactas para el Departamento
de Trasportación y Obras Públicas (DTOP). El 1 de agosto de 2022,
Número identificador
SEN2024_________________ KLRA202400262
las partes celebraron una reunión pre-subasta con el propósito de
atender las dudas relacionadas con el Pliego de Subasta Formal
Núm. 23J-00121. El aludido documento contenía las
especificaciones, los requisitos y los términos vinculados con la
propuesta de los licitadores.
La fecha límite para remitir las preguntas correspondía al 2
de agosto de 2022. No obstante, el 8 de agosto de 2022, la Junta de
Subastas notificó la Enmienda Número 1 recogida en la
Especificación Núm. UEA-23-01. En esta, aumentó la medida de
treinta y nueve caballos de fuerza (39hp) a cuarenta y ocho caballos
de fuerza (48hp). Ante tal modificación, R&B cursó una carta a la
Junta de Subastas, en la cual indicó que dicha enmienda favorecía
a Multi-Ventas y Servicios PR, Inc. (MVSPR), lo cual constituye una
acción conocida como bid tailoring. Además, solicitó una nueva
reunión pre-subasta, sin embargo, el organismo recurrido rechazó
tal proposición.
Así las cosas, la agencia recurrida celebró el acto de apertura
de subasta. En dicho proceso participaron R&B y González Trading
mediante la presentación de sus ofertas. Evaluadas sus propuestas,
el 31 de agosto de 2022, la Junta de Subastas emitió y notificó una
Resolución de Rechazo Global. En virtud de tal determinación,
resolvió que las entidades participantes incumplieron con la
Especificación Núm. UEA-23-018.7, que contiene la indicación
requerida de la fuerza de caballos que debían exhibir las
excavadoras compactas objeto del litigio.
Oportunamente, el 20 de septiembre de 2022, R&B presentó
un recurso de revisión ante la Junta Revisora de Subastas. No
obstante, el 8 de noviembre de 2022, la Junta Revisora desestimó el
recurso por no cancelar los aranceles a tenor con la Carta Circular KLRA202400262
Núm. 2021-06. En efecto, resolvió que carecía de jurisdicción, toda
vez que el recurso no se perfeccionó.
Inconforme con la determinación agencial, el 9 de noviembre
de 2022, R&B acudió ante este Tribunal de Apelaciones mediante
un recurso de revisión judicial. Evaluada la totalidad del expediente,
el 8 de febrero de 2023, esta Curia emitió una Sentencia en la cual
desestimó el recurso bajo el entendido de que R&B no canceló
aranceles y no agotó los remedios administrativos.1
No obstante, el 13 de marzo de 2024, el Tribunal Supremo de
Puerto Rico dictaminó una Opinión y Sentencia en la cual revocó la
determinación del Tribunal Apelaciones, y a su vez, decretó la
nulidad de la tarifa prescrita en la Carta Circular Núm. 2021-06.
Véase, [CITATION]. Al respecto, nuestro máximo Foro dispuso el siguiente
razonamiento legal:
[a]l arribar a esta conclusión, razonamos, como corolario,
que la solicitud de revisión que R&B Power instó ante la
Junta Revisora se perfeccionó conforme a derecho, pues,
para ello, no tenía que satisfacer arancel alguno. En ese
sentido, la Junta Revisora no tiene impedimento para asumir
jurisdicción y considerar en sus méritos la referida solicitud.
Consecuentemente, devolvió el caso a la Junta Revisora para que
atendiera en sus méritos la solicitud de revisión instada por R&B. A
esos efectos, el 8 de abril de 2024, este Tribunal de Apelaciones
notificó el correspondiente Mandato a la Junta Revisora. No
obstante, R&B alega que transcurrido treinta (30) días posteriores a
la emisión del Mandato, la Junta Revisora no se ha expresado en
torno a la solicitud de revisión. Ante tal circunstancia, considera que
dicho cuerpo revisor rechazó de plano su petición.
Inconforme con el proceder administrativo, el 24 de mayo de
2024, acudió ante nos mediante un escrito intitulado Recurso de
1 Véase Resolución emitida bajo la designación alfanumérica KLRA2022-00608. KLRA202400262
Revisión de Subasta. En su escrito, señala la comisión de los
siguientes errores:
PRIMERO: ERRÓ LA JUNTA DE SUBASTAS AL
ENMENDAR LAS ESPECIFICACIONES DEL EQUIPO
LUEGO DE LA REUNIÓN PRE-SUBASTA
COMPULSORIA Y TRANSCURRIDO EL TÉRMINO
LÍMITE PARA QUE LOS LICITADORES SOMETIERAN
PREGUNTAS, ADAPTÁNDOLAS PARA FAVORECER A
OTRO LICITADOR, EN PERJUICIO DE R&B.
SEGUNDO: ERRÓ LA JUNTA DE SUBASTAS AL NO
ADJUDICARLE A R&B LA BUENA PRO DE LA
SUBASTA 23J, SEGÚN RECOMENDÓ EL DTOP,
CUANDO LA DIFERENCIA EN LA ESPECIFICACIÓN
DEL EQUIPO ESTRIBA EN SOLO PUNTO CUATRO (.4)
CABALLOS DE FUERZA LO QUE CONSTITUYE UNA
“DESVIACIÓN PERMISIBLE” BAJO LA SECCIÓN 7.3.17
(11) DEL REGLAMENTO DE SUBASTAS QUE NO
AFECTA EL PROPÓSITO Y OPERACIÓN DEL EQUIPO.
El 4 de junio de 2024, esta Curia emitió Resolución en la cual
concedió a la parte recurrida veinte (20) días para presentar su
posición. Posteriormente, el 25 de junio de 2024, la parte recurrida
presentó una Solicitud de Término Adicional. El 28 de junio de 2024,
la parte recurrida presentó el correspondiente Alegato en Oposición.
Contando con el beneficio de la comparecencia de todas las partes,
procedemos a resolver.
II.
A. Revisión judicial de las determinaciones administrativas
La Ley de Procedimiento Administrativo Uniforme del
Gobierno de Puerto Rico, Ley Núm. 38-2017, según enmendada, (3
LPRA sec. 9601 et seq.) (LPAU), se creó a los fines de uniformar los
procedimientos administrativos ante las agencias.
Consecuentemente, desde la aprobación del procedimiento provisto
por la LPAU, los entes administrativos están precisados a conducir
sus procesos de reglamentación, adjudicación y concesión de
licencias y permisos de conformidad con los preceptos de este
estatuto y el debido proceso de ley. [CITATION]. KLRA202400262
La Sección 4.1 de la LPAU, dispone que las decisiones
administrativas finales pueden ser revisadas por el Tribunal de
Apelaciones. (3 LPRA sec. 9671). La finalidad de esta disposición es
delimitar la discreción de los organismos administrativos para
asegurar que estos ejerzan sus funciones conforme a la ley y de
forma razonable. [CITATION]. Véase, además, [CITATION].
Es decir, la revisión judicial
permite a los tribunales garantizar que las agencias administrativas
actúen dentro de los márgenes de las facultades que le fueron
delegadas por ley. [CITATION]. A su vez, posibilita el poder
[SEGMENT 7]
constatar que los organismos administrativos “cumplan con los
mandatos constitucionales que rigen el ejercicio de su función,
especialmente con los requisitos del debido proceso de ley”. Íd. Así,
la revisión judicial constituye el recurso exclusivo para revisar los
méritos de una decisión administrativa sea esta de naturaleza
adjudicativa o de naturaleza informal. Capote Rivera y otros v. Voilí
Voilá Corp. y otros, supra; [CITATION].
Es norma reiterada que las decisiones de los organismos
administrativos están revestidas de una presunción de regularidad
y corrección, [CITATION]. Esto
debido a que, mediante esta norma se reconoce el peritaje del que
gozan los organismos administrativos en aquellas materias que le
han sido delegadas por ley. [CITATION]. KLRA202400262
Nuestro máximo Foro ha establecido que, al ejercer la revisión
judicial los tribunales no pueden descartar de forma absoluta la
determinación de una agencia, sino que primero tienen que
examinar la totalidad del expediente y determinar si la
interpretación de la agencia representó un ejercicio razonable de su
discreción administrativa, así fundamentado en la pericia particular
de esta, en consideraciones de política pública o en la apreciación
de la prueba. [CITATION].
Cónsono con lo anterior, la sección 4.5 de la LPAU establece
que los tribunales deben sostener las determinaciones de hechos de
las agencias si están basadas en "evidencia sustancial que obra en
el expediente administrativo". (3 LPRA sec. 9675). Como vemos, la
norma anterior nunca ha pretendido ser absoluta. Por eso, el
Tribunal Supremo ha resuelto con igual firmeza que los tribunales
no pueden extender un sello de corrección, so pretexto de
deferencia, a las determinaciones o interpretaciones administrativas
irrazonables, ilegales, o simplemente, contrarias a derecho. [CITATION].
Sin embargo, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION]. Por ende, "los tribunales
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". [CITATION]. Lo anterior responde a
la vasta experiencia y conocimiento especializado que tienen las KLRA202400262
agencias sobre los asuntos que le son encomendados. [CITATION]
Al revisar las decisiones de las agencias, el criterio rector que
debe guiar a los tribunales es la razonabilidad de la actuación,
aunque ésta no tiene que ser la única o la más razonable. [CITATION] Por lo tanto,
al momento de examinar un dictamen administrativo se determina
que: (1) la decisión administrativa no está basada en evidencia
sustancial; (2) la agencia erró en la aplicación de la ley (3) el
organismo administrativo actuó de manera irrazonable, arbitraria o
ilegalmente; o (4) su actuación lesiona derechos constitucionales
fundamentales, entonces la deferencia hacia los procedimientos
administrativos cede. [CITATION]
En esta tarea, los foros judiciales analizarán los aspectos
siguientes: (1) si el remedio concedido por la agencia fue apropiado;
(2) si las determinaciones de hecho que realizó la agencia están
sostenidas por evidencia sustancial, y (3) si las conclusiones de
derecho fueron correctas. [CITATION] Mientras que, las determinaciones de hecho
se deben sostener si las mismas se basan en evidencia sustancial
que surja de la totalidad del expediente administrativo, [CITATION], las
determinaciones de derecho pueden ser revisadas en su totalidad.
[CITATION]
Si bien es cierto que la revisión judicial no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo, [CITATION], los
tribunales revisores descartarán el criterio de los entes
administrativos cuando "no se pueda hallar fundamento racional
que explique o justifique el dictamen administrativo". [CITATION] KLRA202400262
v. Supte. Policía, supra. Si la interpretación y la aplicación del
derecho no es correcta, el foro apelativo está obligado a intervenir.
JP, Plaza Santa Isabel v. Cordero Badillo, [CITATION].
"En esas circunstancias, [el foro apelativo] cederá la deferencia que
merecen las agencias en las aplicaciones e interpretaciones de las
leyes y los reglamentos que administra". Super Asphalt Pavement,
Corp. v. AFI y otros, [CITATION]. Véase, además,
Capote Rivera y otros v. Voilí Voilá Corp. y otros, [CITATION]; Rolón
Martínez v. Supte. Policía, supra.
B. El procedimiento de subasta
En su obligación de proveer servicios a la ciudadanía, el
Estado utiliza diversos medios de licitación pública o subastas, por
el cual invitan a uno o varios proponentes a presentar ofertas para
la realización de obras o para la adquisición de bienes y servicios.
Transporte Rodríguez Asfalto, Inc. v. Junta de Subastas, Mun.
Aguadilla [CITATION]. Al respecto, nuestro máximo
Foro ha reiterado que:
[e]l propósito primordial del proceso de subasta es proteger
los fondos públicos, fomentando la libre y diáfana
competencia entre el mayor número de licitadores posibles.
Así, se pretenden evitar influencias ajenas al beneficio para
el interés público. Por medio de las subastas
gubernamentales el Gobierno maximiza la posibilidad de
obtener el mejor contrato, mientras se protegen los intereses
y activos del pueblo contra el dispendio, el favoritismo, la
corrupción y el descuido al otorgarse los contratos. De esta
forma, el Gobierno puede llevar a cabo sus funciones como
comprador de una forma eficiente, honesta y correcta para
proteger los intereses y el dinero del pueblo.
Así, cualquier controversia que se derive de los
procedimientos de subasta deben decidirse a la luz del interés
público. Municipio de Aguada v. W Contruction, LLC y otros, [CITATION]. Cónsono con lo anterior, el 23 de julio
de 2019, la Asamblea Legislativa aprobó la Ley Núm. 73-2019 (3
LPRA sec. 9831 et seq.), conocida como la Ley de la Administración
de Servicios Generales para la Centralización de las Compras del KLRA202400262
Gobierno de Puerto Rico de 2019. En su Exposición de Motivos, se
establece como política pública del Gobierno de Puerto Rico, la
centralización de los procesos de compras gubernamentales de
bienes, obras y servicios, en aras de lograr mayores ahorros fiscales
y la transparencia en la gestión gubernamental. Consecuentemente,
se le delega a la Administración de Servicios Generales (ASG) la
responsabilidad de implantar dicha política pública y de coordinar
y dirigir el proceso de adquisición de bienes y servicios y la
contratación de servicios del Gobierno de Puerto Rico. [CITATION]
Como parte de sus disposiciones, la Ley Núm. 73-2019 creó
la Junta de Subastas, adscrita a la ASG. Artículo 47 de la Ley Núm.
73-2019 (3 LPRA sec. 9836). La Junta de Subastas tiene naturaleza
cuasijudicial y está facultada para evaluar y adjudicar, mediante un
procedimiento uniforme, las subastas del Gobierno de Puerto Rico
que se realicen en cumplimiento con las disposiciones de la ley. Así
pues, la ASG está facultada para constituir un Comité Evaluador de
Subastas, cuya función principal será evaluar el cumplimiento, por
parte de los licitadores, de los requisitos de licitación establecidos
para cada subasta en particular. Íd.
Indiscutiblemente, aunque el gobierno debe procurar que las
obras públicas se realicen al precio más bajo posible, existen otros
criterios, además del precio, que tienen que ser evaluados por la
Junta de Subastas al momento de adjudicarla. [CITATION]. Algunos de estos factores incluyen que las
propuestas sean conforme a las especificaciones de la agencia, la
habilidad del postor para realizar y cumplir con el contrato, la
responsabilidad económica del licitador y su reputación e integridad
comercial entre otros factores. [CITATION]. KLRA202400262
Además, según ha resuelto nuestro máximo Foro las
consideraciones de orden público como los servicios o productos
técnicos, la probabilidad de realizar la obra de manera más eficiente
y dentro del tiempo acordado, y los materiales que ofrezca un postor
de la propuesta que no es la más económica, pueden llevar a la
agencia a seleccionarlo, si ello corresponde a sus mejores intereses.
[CITATION].
De otro lado, el Tribunal Supremo ha resuelto que en el
contexto de las subastas gubernamentales la norma general es que
la Junta de Subastas de la agencia goza de amplia discreción en la
evaluación de las propuestas sometidas ante su consideración.
[SEGMENT 8]
[CITATION]. Como regla general, la agencia u organismo público
es quien posee una vasta experiencia y especialización que la
colocan en mejor posición que el foro judicial para seleccionar el
postor que más convenga al interés público. [CITATION].
Así, una vez se adjudique la buena pro, los tribunales no
deben sustituir el criterio de la agencia o junta concernida, a menos
que se demuestre que la decisión se tomó de forma arbitraria o
caprichosa o que medió fraude o mala fe. [CITATION]. En ausencia de estos elementos ningún postor tiene derecho
a quejarse cuando otra proposición es elegida como la más
ventajosa. Íd. La cuestión debe decidirse a la luz del interés público.
Íd. En estos casos, la determinación de la agencia será sostenida si
cumple con el criterio de razonabilidad. Íd.
i. Notificación
El Artículo 53 de la Ley Núm. 73-2019 (3 LPRA sec. 9836f)
establece que, KLRA202400262
[u]na vez adjudicado un asunto ante la consideración de la
Junta de Subastas, esta procederá́ a notificar su
determinación final, según los procedimientos y mecanismos
que se establezcan en el Reglamento Uniforme de Compras y
Subastas. La notificación de adjudicación de subasta será
notificada adecuadamente, mediante correo federal
certificado con acuse de recibo o correo electrónico, a todas
las partes que tengan derecho a impugnar tal determinación.
La notificación se realizará de manera simultánea y
utilizando el mismo método de notificación para todas las
partes. La notificación de adjudicación estará́ debidamente
fundamentada y deberá incluir los fundamentos que
justifican la determinación, aunque sea de forma breve o
sucinta, en aras de que los foros revisores puedan revisar
tales fundamentos y así́ determinar si la decisión fue
arbitraria, caprichosa o irrazonable. Como mínimo, la
notificación debe incluir: (1) los nombres de los licitadores
que participaron en la subasta y una síntesis de sus
propuestas; (2) los factores o criterios que se tomaron en
cuenta para adjudicar la subasta; (3) los defectos, si alguno,
que tuvieran las propuestas de los licitadores perdidosos; y
(4) la disponibilidad y el plazo para solicitar revisión
administrativa ante la Junta Revisora de Subastas de la
Administración de Servicios Generales y revisión judicial.
La determinación final de la Junta de Subastas contendrá
determinaciones de hechos y conclusiones de derecho. La
parte adversamente afectada por una actuación,
determinación final o resolución de la Junta de Subastas
podrá presentar un recurso de revisión, conforme a lo
establecido en el Capítulo VIII de esta Ley.
Cónsono con esto, nuestro Tribunal Supremo ha expresado
que la notificación de la adjudicación de una subasta debe ser
fundamentada, al menos de forma sumaria y sucinta. [CITATION]
Es decir, al menos debe incluir la siguiente información: los nombres de los
licitadores en la subasta y una síntesis de sus propuestas; los
factores o criterios que se tomaron en cuenta para adjudicar la
subasta; los defectos, si alguno, que tuvieran las propuestas de los
licitadores perdidosos y la disponibilidad y el plazo para solicitar la
reconsideración y la revisión judicial. Íd.
ii. Reglamento Núm. 9230 del 18 de noviembre de
La ASG, en virtud de las facultades que le fueron concedidas
en la Ley Núm. 73-2019, adoptó el Reglamento Uniforme de
Compras y de Subastas de Bienes, Obras y Servicios No
Profesionales de la Administración de Servicios Generales del
Gobierno de Puerto Rico, Reglamento Núm. 9230 de 18 de KLRA202400262
noviembre de 2019. En este, se establecen todas las normas y los
procedimientos a seguir por la ASG en la tramitación de todas sus
compras y subastas.
Con relación a la controversia que nos atañe, la Sección 7.3.5
del Reglamento Núm. 9230 regula las enmiendas al pliego de
subastas. Específicamente, dicha sección establece que solo se
podrán efectuar enmiendas al pliego de subasta:
1. Cuando la agencia peticionaria someta enmiendas;
2. Cuando a juicio del Administrador los términos allí
dispuestos sean irrazonables;
3. Cuando se descubra algún error sustancial e
insubsanable en el pliego de subasta;
4. Cuando se interese aumentar o disminuir términos o
cantidades o variar condiciones o especificaciones;
5. Cuando se reconsideren los términos del pliego.
De otro lado, el Reglamento 9230 define Criterios de
Evaluación como aquellos
[c]riterios enumerados en el pliego de subasta o solicitud de
propuestas los cuales son utilizados por la Administración
Auxiliar de Adquisiciones o Juntas de Subastas para
evaluar, clasificar y recomendar ofertas o propuestas para su
adjudicación. También incluye los criterios enumerados en
una solicitud de cualificaciones a ser evaluados por el Comité
Evaluador de Subastas o Propuestas para recomendar la
cualificación de un proponente potencial.
Cónsono con lo anterior, la Sección 7.3.17 (2) del Reglamento
9230 establece los criterios básicos de evaluación utilizados por la
Junta de Subastas para evaluar las ofertas:
a. La exactitud con la cual el licitador ha cumplido con las
especificaciones, los términos y las condiciones del pliego
de la subasta formal.
b. La calidad de lo bienes, obras y servicios no profesionales
ofrecidos y como estos cumplen con las especificaciones
y satisfacen las necesidades establecidas. En las
situaciones en que se efectuaron pruebas con muestras
suministradas por el licitador, se incluirá la evaluación
de la muestra del bien entre los aspectos de este criterio
de calidad.
c. Si el precio es competitivo y comparable con el
prevaleciente en el mercado. Además, aplicar el porciento
de preferencia establecido si la persona o la entidad ha
presentado una Resolución de la Junta para la Inversión
en la Industria Puertorriqueña o cualquier documento
acreditativo de preferencia, según dispuesto en leyes
preferenciales.
d. La habilidad reconocida del licitador para llevar a cabo
trabajos de la naturaleza bajo la consideración en obras
y servicios no profesionales. KLRA202400262
e. La responsabilidad económica del licitador y las
experiencias de la Administración con el cumplimiento de
contratos anteriores de naturaleza igual o parecida.
f. El término de entrega más próximo, si este se ha hecho
constar como una de las condiciones.
g. La capacidad económica y financiera, así como la
trayectoria y experiencia previa del licitador para proveer
esto servicios o bienes y cumplir con los términos de
entrega y garantías del producto o servicio.
h. El período específico o los términos aplicables a cada
garantía, sus limitaciones y condiciones, los pasos
requeridos para reclamar la garantía, que entidad
proveerá el servicio de reemplazo, subsanación,
corrección o reparación del bien o el servicio.
i. Si el licitador cualifica como empresa minoritaria o de
mujeres, u otra para la cual se deba conceder una
preferencia bajo cualquier ley aplicable.
j. Cualquier otro criterio pertinente que represente el mejor
valor para el Gobierno de Puerto Rico.
Todos estos criterios se tabularán y presentarán en forma
comparativa entre licitadores y este informe formará parte
del expediente de la subasta.
Además, el Reglamento 9230 define el término
Especificaciones como un conjunto de características primordiales
de bienes, obras o servicios no profesionales, utilizados como
referencia para cada renglón de cotización, subasta o propuesta:
características físicas, funcionales, de estética o de calidad
requerida, con las que se describen los bienes, obras y servicios no
profesionales. Artículo 1.6 (28) del Reglamento 9230, [CITATION].
Asimismo, la Sección 7.3.17 (10) regula lo concerniente al Rechazo
Global. A esos efectos, la Junta de Subastas:
Podrá rechazar cualquiera o todas las ofertas para una
subasta formal en las situaciones siguientes:
a. Los licitadores no cumplan con alguno de los requisitos,
especificaciones o condiciones estipuladas.
b. Los precios obtenidos sean irrazonables o los términos
resulten onerosos.
c. Cuando las ofertas demuestren que los licitadores
controlan el mercado del producto solicitado y se
entienda que se han puesto de acuerdo entre sí para
cotizar precios excesivos. En tal caso, se realizará el
referido correspondiente al Departamento de Justicia.
De ocurrir alguna de las circunstancias antes mencionada,
la Junta de Subastas deberá emitir una segunda
convocatoria del proceso. Solo en caso de que las ofertas
recibidas en dicha convocatoria resulten nuevamente en las
circunstancias arriba mencionada, procederá el trámite de
compra excepcional. La Junta de Subastas deberá levantar
un acta de cada proceso en el cual exponga detalladamente
la situación particular acaecida como resultado de cada
convocatoria. Ambas actas deberán obrar en el expediente,
como requisito previo al trámite de compra excepcional. KLRA202400262
[SEGMENT 9]
Por su parte, la Desviación Permisible establecida en la
Sección 7.3.17 (11) establece que,
La Junta de Subastas podrá aceptar desviaciones mínimas
en las especificaciones, términos y condiciones de las ofertas
recibidas, siempre y cuando concurran los siguientes
requisitos:
a. Ningún licitador ofrezca el bien o servicio no profesional
con las especificaciones requeridas;
b. no se afecte el propósito original a que está destinada la
subasta y;
c. el precio cotizado sea competitivo y comparable con el
prevaleciente en el mercado.
La Junta de Subastas se reserva el derecho de obviar
cualquier informalidad o diferencia de menor importancia en
los términos y condiciones, si cumple con el propósito para
el que se solicitan y resulta beneficioso para el Gobierno de
Puerto Rico. Las desviaciones no podrán afectar
sustancialmente la calidad, capacidad o características
esenciales de los artículos o servicios solicitados. Deberá
incluirse en el expediente de la subasta un memorando
explicativo de la desviación permitida.
Asimismo, la Impugnación del Pliego está definido en el
Artículo 1.6 (34) del Reglamento 9230 como la “[s]olicitud que hace
un licitador o un proponente ante la Administración Auxiliar de
Adquisiciones para que revise las especificaciones y condiciones
contenidas en los pliegos de una subasta o propuesta convocada”.
Así, la Sección 7.3.6 del Reglamento 9230 establece lo relativo a la
impugnación del pliego de la subasta. A esos efectos, la mencionada
sección dispone, entre otras cosas, que,
[s]i un licitador interesado en participar en una subasta
formal no estuviera de acuerdo con los términos finales,
instrucciones, especificaciones o condiciones establecidas en
el pliego de la subasta, podrá radicar personalmente ante la
Administración Auxiliar de Adquisiciones el correspondiente
escrito de impugnación, dentro de los tres (3) días laborables
siguientes a la fecha en que la Administración hace
disponible los pliegos de la subasta. Toda impugnación del
pliego de la subasta radicada fuera del término aquí
establecido será rechazada de plano. Deberá notificarse
copia del recurso presentado a los licitadores invitados a la
subasta formal.
De otro lado, la Sección 7.2.8 del mencionado cuerpo
reglamentario establece lo concerniente a las reuniones pre-
subasta. Específicamente, dicha sección dispone que la
Administración Auxiliar de Adquisiciones podrá celebrar reuniones
pre-subasta no menos de cinco (5) días laborables antes de la fecha KLRA202400262
fijada para el acto de apertura. Así pues, toda pre-subasta tendrá el
propósito de aclarar a los licitadores las dudas que surjan en torno
al pliego de subasta. [CITATION] Además, se establecerá un período y fecha
límite para suministrar preguntas escritas. [CITATION] Toda pregunta o
solicitud de documentos presentada por los potenciales licitadores
a la Administración Auxiliar de Adquisiciones será canalizada por
medio de la Secretaría de la Administración Auxiliar de
Adquisiciones. [CITATION] Además, toda pregunta escrita y sometida a la
consideración de la Administración Auxiliar de Adquisiciones será
contestada en el término establecido para ello. [CITATION] Tanto la pregunta
como la contestación se ofrecerá a los demás licitadores para su
beneficio y para añadir transparencia al proceso. [CITATION]
III.
En su primer señalamiento de error, la parte recurrente alegó
que erró la Junta de Subastas al enmendar las especificaciones del
equipo luego de la reunión pre-subasta compulsoria y transcurrido
el término límite para que los licitadores sometieran preguntas,
adaptándolas para favorecer a otro licitar en perjuicio suyo.
Según la Sección 7.2.8 del Reglamento 9230, supra, la
Administración Auxiliar de Adquisiciones podrá celebrar reuniones
pre-subasta no menos de cinco (5) días laborables antes de la fecha
fijada para el acto de apertura. Es decir, la Junta de Subastas tiene
discreción para llevar a cabo una reunión pre-subasta. Según surge
del expediente ante nos, la Junta de Subastas celebró una (1)
reunión pre-subasta, sin embargo, no estaba obligada a celebrar
una segunda reunión pre-subasta. Por consiguiente, no
encontramos indicio de que la Junta de Subasta haya actuado de
forma irrazonable. Es decir, la determinación de la Junta de Subasta
de celebrar una sola reunión pre-subasta representó un ejercicio
razonable de su discreción administrativa. KLRA202400262
Por otra parte, debemos auscultar si incidió la Junta de
Subasta al enmendar las especificaciones del equipo luego de la
reunión pre-subasta. Según surge del derecho que antecede, la
Sección 7.3.5 del Reglamento 9230, [CITATION], dispone, entre otras
cosas, que solo se podrán efectuar enmiendas al pliego de la subasta
“[c]uando se interese aumentar o disminuir términos o cantidades,
o variar condiciones o especificaciones”. Así, nada requiere la citada
disposición reglamentaria a los efectos de que la Junta de Subastas
debe justificar la enmienda al pliego de subastas.
Con relación a la alegación del recurrente de que la Junta de
Subastas enmendó las especificaciones del equipo, luego de la
reunión pre-subasta y transcurrido el término límite para que los
licitadores sometieran preguntas, surge del expediente que la Junta
de Subastas notificó el cambio en las especificaciones el 5 de agosto
de 2022 y el acto de apertura fue el 15 de agosto de 2022. Por lo
tanto, la Junta de Subastas emitió la enmienda al pliego de subastas
nueve (9) días antes del acto de apertura. Así, la enmienda a las
especificaciones del equipo se hizo ocho (8) días antes de que
expirara el término concedido en la Sección 7.3.5 del Reglamento
Núm. 9230, [CITATION]. En consecuencia, el primer error señalado no se
cometió.
En su segundo señalamiento de error, la parte recurrente
adujo que erró la Junta de Subastas al no adjudicarle la buena pro
de la Subasta 23J, según recomendó el DTOP, cuando la diferencia
en la especificación del equipo estriba en solo punto cuatro (.4)
caballos de fuerza lo que constituye una “desviación permisible” bajo
la Sección 7.3.17 (11) del Reglamento de Subastas que no afecta el
propósito y operación del equipo. No le asiste la razón.
En primer lugar, de la Notificación Núm. 1 emitida por la ASG
el 5 de agosto de 2022, surge que la subasta es para la adquisición KLRA202400262
de excavadoras compactas para el DTOP, entidades
gubernamentales, exentas y Municipios del Gobierno de Puerto
Rico. Así pues, es menester dejar claro que la aludida excavadora no
era para uso exclusivo del DTOP, sino que también sería utilizada
por otras entidades gubernamentales.
En segundo lugar, con relación a la Desviación Permisible, la
Sección 7.3.17 (11) del [CITATION], establece que la
Junta de Subastas podrá aceptar desviaciones mínimas en las
especificaciones, términos y condiciones de las ofertas recibidas,
siempre y cuando concurran ciertos requisitos. Es decir, las
desviaciones permisibles también pueden ser realizadas por la
Junta de Subastas de forma discrecional. En el caso de autos, la
Junta de Subastas decidió, a su discreción y luego de evaluadas las
ofertas, no realizar una desviación permisible. En consecuencia,
emitió un Rechazo Global ante el incumplimiento de los licitadores
con las especificaciones establecidas en la UEA-23-018. Con esta
actuación, la parte recurrida actuó dentro de la discreción
establecida en la Sección 7.3.17 (10) del [CITATION].
En fin, no hay indicios en el expediente ante nuestra
consideración que demuestren que la actuación de la Junta de
Subastas constituye un abuso de discreción o constituye una
actuación irrazonable, ilegal o contraria a derecho. Así, entendemos
que la actuación de la Junta de Subastas estuvo dentro de los
márgenes de las facultades que le fueron delegadas por ley.
IV.
Por los fundamentos que anteceden, confirmamos el dictamen
recurrido. ```plaintext
KLRA202400262
Lo acordó y manda el Tribunal, y lo certifica la secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
====== Instruction ======
```
[SEGMENT 10]
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL IV
NELSON COTTO APONTE Revisión
RECURRIDO Administrativa
procedente de la
V. Comisión Apelativa
del Servicio Público
AUTORIDAD DE ENERGÍA KLRA202400270 Núm. 2021-05-
ELÉCTRICA
RECURRENTE
Sobre:
Movilidad
Panel integrado por su presidenta, la Jueza Cintrón Cintrón, la
Jueza Rivera Marchand y el Juez Rodríguez Flores
Rivera Marchand, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 12 de julio de 2024.
Comparece la Autoridad de Energía Eléctrica de Puerto Rico
(AEE o recurrente) y solicita la revocación de una Resolución emitida
el 27 de marzo de 2024 por la Comisión Apelativa del Servicio
Público (CASP o Comisión). En esta, la CASP declaró nula la
transferencia de Nelson Cotto Aponte (Sr. Cotto Aponte o recurrido)
como empleado de la AEE a un puesto en el Departamento de Salud
como parte del plan de movilidad dispuesto en la Ley Núm. 8 de 4
de febrero de 2017, conocida como la Ley para la Administración y
Transformación de los Recursos Humanos en el Gobierno de Puerto
Rico (Ley Núm. 8-2017), [CITATION]
Por los fundamentos que exponemos a continuación,
revocamos la Resolución recurrida por ausencia de parte
indispensable. Veamos.
I.
El Sr. Cotto Aponte ocupaba el puesto de Supervisor Principal
de la Oficina de Acomodo Razonable en la AEE. Por motivo de la Ley
Núm. 120 de 20 de junio de 2018, conocida como Ley para
Transformar el Sistema Eléctrico de Puerto Rico (Ley Núm. [CITATION]-
Número Identificador
SEN2024________ KLRA202400270
2018), 22 LPRA secs. 1111 et seq. y la Ley Núm. 8-2017, supra, la
AEE le notificó que sería transferido de su puesto, mediante el
mecanismo de movilidad al Departamento de Salud en la Región de
Caguas. Al reportarse a dicho lugar, no se le indicó a qué oficina
debía acudir, por lo que se dirigió al Departamento de Salud en San
Juan, donde en la división de prevención evaluaron su preparación
académica y experiencia laboral. Como resultado de lo antes, lo
asignaron al puesto de Coordinador de Programas II en la Secretaría
Auxiliar de Promoción y Protección de Salud con el mismo sueldo
que devengaba en la AEE.
Inconforme, el Sr. Cotto Aponte interpuso una apelación,
únicamente, en contra de la AEE, ante la CASP. La apelación fue
notificada a la Oficina de Administración y Transformación de los
Recursos Humanos del Gobierno de Puerto Rico (OATRH), a la
Oficina de Gerencia y Presupuesto (OGPe), a la Autoridad de
Asesoría Financiera y Agencias Fiscal de Puerto Rico (AAFAF) y al
Departamento de Salud. Sin embargo, la CASP no ordenó la
comparecencia de dichas dependencias gubernamentales.
Luego de recibir la postura de la AEE y de aquilatar la prueba
así como el derecho aplicable, la CASP emitió una Resolución en la
cual adoptó la recomendación de la Oficial Examinadora, asignada
al caso. En esencia, la CASP resolvió que la OATRH es la encargada
de poner en función cada plan de movilidad en la prestación de
servicios y funciones del Gobierno de Puerto Rico. Por ello, adoptó
el Reglamento Núm. 8992 en el que se establecen los criterios a
tomar en consideración al disponer sobre un traslado. Resaltó el
Artículo 6, Sección 6.4, inciso i (1) sobre necesidad de servicio.
También se refirió a lo establecido en el Memorando Especial de la
OATRH Núm. 13-2021, intitulado Proceso de Movilidad para los
Empleados de la Autoridad de Energía Eléctrica (AEE) de 26 de marzo
de 2021, así como sus enmiendas (Memorando Especial Núm. 18-
2021 de 23 de abril de 2021). Lo antes, constituye el proceso de
movilidad “involuntaria” y aplica al caso del Sr. Cotto Aponte. KLRA202400270
La CASP concluyó que, según los argumentos a favor del Sr.
Cotto Aponte que, la AEE, la OATRH y el Departamento de Salud
incurrieron en múltiples incumplimientos en el proceso. En
particular, sostuvo que, no se tomó en consideración la necesidad
del servicio para poner en función el plan de movilidad de la AEE. A
esos efectos determinó que, la transferencia es nula. En su
consecuencia, ordenó a la AEE a ubicar al recurrente en un puesto
similar y, de este no existir, buscar opciones de trabajo dentro del
Gobierno de Puerto Rico en colaboración con la OATRH.
Inconforme, la AEE solicitó reconsideración. Reiteró sus
argumentos sobre la eficacia de la transferencia al Departamento de
Salud. Especialmente, arguyó que la OATRH es parte indispensable
en el presente caso por lo cual, sin su participación, la CASP carece
de jurisdicción. A tono con lo anterior, la OATHR presentó una
Moción de reconsideración y, separadamente, una Moción Asumiendo
Representación Legal y en Solicitud de Intervención. Destacó que,
nunca fue incluido como parte en el caso administrativo y, en su
consecuencia, no tuvo acceso al proceso previo a la adjudicación de
la apelación.
Evaluado lo anterior, la CASP denegó la súplica, rechazando
así la intervención de la OATRH. Aun insatisfecha, la AEE acude
ante esta Curia y señala los siguientes errores, a saber:
Erró la Comisión al dictar No Ha Lugar la Moción de
Reconsideración al carecer de jurisdicción por falta de
acumulación de parte indispensable.
Erró la Comisión al basar su determinación en un criterio de
evaluación (necesidad de servicio) que no fue contemplado
para las transferencias (movilidad) de los empleados de la
Autoridad de Energía Eléctrica en virtud de la Ley 120-2018
y el Memorando Especial.
Erró la Comisión al declarar nula la transferencia (movilidad)
de la Parte Apelada a pesar de no existir incumplimiento por
parte de la Parte Apelante con los criterios de evaluación
aplicables a la movilidad de la Parte Apelada.
1
Apéndice, pág. 82-105. KLRA202400270
En cumplimiento con nuestra Resolución, emitida el 6 de junio
de 2024, Cotto Aponte presentó su alegato el 8 de julio de 2024. Con
el beneficio de la comparecencia de ambas partes, resolvemos.
II.
A. La Revisión Judicial y la Intervención en Procesos
Administrativos
La Sección 4.1 de la Ley Núm. 38-2017, Ley de Procedimiento
Administrativo Uniforme del Gobierno de Puerto Rico (LPAU), 3
LPRA sec. 9671, dispone que las decisiones administrativas pueden
ser revisadas por el Tribunal de Apelaciones. La finalidad de esta
disposición es delimitar la discreción de los organismos
administrativos para asegurar que estos ejerzan sus funciones
dentro de los márgenes de las facultades que le fueron delegadas
por ley. [CITATION], 2024
TSPR 29, resuelto el 26 de marzo de 2024. Al mismo tiempo, permite
velar que los entes administrativos den cumplimiento a los
mandatos constitucionales, en especial, el debido proceso de ley. Íd.
De otra parte, es norma reiterada que, al revisar las
determinaciones de los organismos administrativos, los tribunales
apelativos le conceden gran consideración y deferencia, por la
experiencia y el conocimiento especializado que estos poseen.
[CITATION], supra; [CITATION], 211 DPR 99, 113-114
(2023). En particular, la Sección 4.5 de la LPAU, 3 LPRA sec. 9675,
establece que los tribunales deben sostener las determinaciones de
hechos de las agencias si están basadas en "evidencia sustancial
que obra en el expediente administrativo".
Como vemos, al ejercer su facultad revisora, los tribunales no
pueden descartar de forma absoluta el dictamen administrativo sin
antes haber examinado la totalidad del expediente y haber
determinado que la agencia actuó irrazonablemente al ejercer su
discreción administrativa. [CITATION], supra. Al mismo tiempo, el Tribunal Supremo KLRA202400270
[SEGMENT 11]
ha resuelto con igual firmeza que, los tribunales no podemos
imprimirle un sello de corrección, so pretexto de deferencia, a las
determinaciones o interpretaciones administrativas irrazonables,
ilegales, o simplemente contrarias a derecho. Íd; [CITATION].
Por otro lado, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION]. Por ende, "los tribunales
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". Íd. Lo anterior
responde a la vasta experiencia y al conocimiento especializado o
expertise que tienen las agencias sobre los asuntos que le son
encomendados. [CITATION].
Por consiguiente, dada la presunción de corrección y
regularidad que reviste a las determinaciones de hecho elaboradas
por las agencias administrativas, éstas deben ser respetadas
mientras la parte que las impugna no produzca evidencia suficiente
para derrotarlas. [CITATION]. Al
revisar las decisiones de las agencias, el criterio rector que debe
guiar a los tribunales es la razonabilidad de la actuación, aunque
esta no tiene que ser la única o la más razonable. [CITATION].
Por lo tanto, si al momento de examinar un dictamen
administrativo se determina que: (1) la decisión administrativa no
está basada en evidencia sustancial; (2) la agencia erró en la
aplicación de la ley; (3) el organismo administrativo actuó de manera
irrazonable, arbitraria o ilegalmente; o (4) su actuación lesiona KLRA202400270
derechos constitucionales fundamentales, entonces la deferencia
hacia los procedimientos administrativos cede. Íd.
De otra parte y atinente al recuso ante nos, es preciso señalar
que, la intervención en el ámbito de derecho administrativo se rige
por la LPAU, 3 LPRA, sec 9601, et. seq. Recientemente en [CITATION]
el Tribunal Supremo dispuso que la intervención
es uno de los mecanismos que viabiliza la incorporación de terceros
en un procedimiento adjudicativo. A esos fines, la Sec. 1.3(f) de la
LPAU, 3 LPRA sec. 9603, define interventor como “aquella persona
que no sea parte original en cualquier procedimiento adjudicativo
que la agencia lleve a cabo y que haya demostrado su capacidad o
interés en el procedimiento”. Para que una persona con interés
legítimo en participar de un procedimiento adjudicativo pueda
considerarse interventor debe presentar una solicitud por escrito y
fundamentada a tales efectos. Sec. 3.5 de la LPAU, 3 LPRA sec.
9645. Por su parte, la agencia tendrá discreción para conceder o
denegar la petición, luego de considerar, entre otros factores:
(a) Que el interés del peticionario pueda ser afectado
adversamente por el procedimiento adjudicativo.
(b) Que no existan otros medios en derecho para que el
peticionado pueda proteger adecuadamente su interés.
(c) Que el interés del peticionario ya esté representado
adecuadamente por las partes en el procedimiento.
(d) Que la participación del peticionario pueda ayudar
razonablemente a preparar un expediente más
completo del procedimiento.
(e) Que la participación del peticionario pueda extender
o dilatar excesivamente el procedimiento.
(f) Que el peticionario represente o sea portavoz de otros
grupos o entidades de la comunidad.
(g) Que el peticionario pueda aportar información,
pericia, conocimientos especializados o asesoramiento
técnico que no estaría disponible de otro modo en el
procedimiento. Sec. 1.3 de la LPAU, 3 LPRA 9603.
Los criterios que anteceden deben aplicarse de manera liberal.
Íd. Además, la agencia puede requerir que se le presente información
adicional para estar en posición de emitir su decisión. Íd.
B. Parte indispensable KLRA202400270
La Regla 16.1 de las Reglas de Procedimiento Civil, 32 LPRA
Ap. V, R. 16.1 establece quiénes son parte indispensable, a saber:
“[l]as personas que tengan un interés común sin cuya presencia no
pueda adjudicarse la controversia [...]” Entiéndase que, es
indispensable aquella parte a quien se le violentaría su debido
proceso de ley si se adjudica la controversia sin su presencia. [CITATION]. Véase además
[CITATION], resuelto el
16 de noviembre de 2023.
Como se sabe, el propósito de la Regla 16.1, supra, es proteger
a las personas, naturales o jurídicas, que no formen parte de un
pleito, de los efectos que acarrea la sentencia dictada. [CITATION]. Al mismo tiempo, evita la
multiplicidad de pleitos. Íd. Sobre el particular, nuestro más Alto
Foro ha resuelto que, la falta de parte indispensable constituye una
defensa irrenunciable, susceptible de invocarse en cualquier etapa
de los procedimientos. Íd., pág. 66. Lo anterior, debido a que, el
efecto de no traer a una parte indispensable redunda en una
violación a su debido proceso de ley. Íd. Por tanto, la ausencia de
parte indispensable es un fundamento para dejar sin efecto una
sentencia por nulidad. [CITATION].
Ello, con el efecto de dejar sin jurisdicción al tribunal para resolver
la controversia en ausencia de una parte indispensable. [CITATION], supra, pág. 65.
III.
En el primer señalamiento de error, la recurrente levanta un
planteamiento jurisdiccional sobre falta de parte indispensable.
Además, cuestiona en el segundo y tercer error los criterios de
evaluación aplicados en el proceso de movilidad del recurrido.
Iniciamos nuestro análisis evaluando el primer error por
tratarse de un asunto jurisdiccional prioritario. La AEE argumenta
que, el dictamen de la Comisión es nulo por haberlo emitido sin que KLRA202400270
la OATRH participe en el proceso, siendo esta última parte
indispensable. Lo antes, debido a que, la OATRH es quien ostenta el
peritaje sobre todo asunto relacionado al movimiento o transacción
de personal, realizado mediante un plan de movilidad. De igual
manera la AEE señala que, la OATRH es quien único goza de
facultad para crear e implementar planes de movilidad, por virtud
de la [CITATION], supra.
La recurrente añade que, la Comisión le ordenó entablar un
proceso de diálogo con el recurrido y con la OATRH en la búsqueda
de opciones de trabajo para el Sr. Cotto Aponte, dentro del Gobierno
de Puerto Rico. Lo antes, sin la OATHR figurar como parte en este
asunto y sin permitir su intervención. Sobre tales bases, la AEE
argumenta que la CASP actuó sin jurisdicción al emitir el dictamen
recurrido, por falta de parte indispensable.
Por su parte, el recurrido arguyó que, la OATRH compareció
por primera vez, con posterioridad a la notificación de la
determinación administrativa recurrida, mediante un escrito de
intervención y reconsideración, por lo que era su responsabilidad
comparecer en una etapa anterior. Ante ello, sostuvo en síntesis
que, la determinación administrativa goza de eficacia y es correcta
en derecho.
Hemos evaluado las posturas de las partes y concluimos que
la agencia recurrida incidió al denegar la solicitud de intervención
interpuesta por la OATRH, así como la suplica de la AEE, a esos
efectos. De nuestro análisis del expediente y según la normativa
antes expuesta, observamos que, la agencia debió reconocer que en
este caso se reúnen los criterios (Sec. 1.3 incisos (a),(b),(d),(g) de la
[CITATION], supra) para haber permitido la intervención de la OATRH. En
particular colegimos que, el interés de OATRH puede ser afectado
adversamente por el procedimiento adjudicativo ya que no existen
otros medios en derecho para que pueda proteger adecuadamente
su interés en este caso. Reconocemos además que, la participación
de la OATRH puede ayudar razonablemente a preparar un KLRA202400270
expediente más completo del procedimiento tomando en
consideración que la OATRH es quien puede aportar información,
pericia, conocimientos especializados o asesoramiento técnico que
no estaría disponible de otro modo en el procedimiento.
Surge claramente de la Sección 6.4(4)(2) de la Ley Núm. 8-
2017, 3 LPRA sec. 1472d, que la OATRH es quien habrá de poner
en función cada plan de movilidad dentro del Gobierno de Puerto
Rico, luego de considerar la necesidad del servicio, la preparación y
experiencia del empleado, entre otros factores. De otra parte, la
Sección 15 de la Ley Núm. 120-2018, 22 LPRA sec. 1121, delega
[SEGMENT 12]
tanto en la AEE como en la OATRH la función de identificar cuáles
plazas son compatibles con la preparación de los empleados
regulares de la AEE sujetos a movilidad. Análogamente, según el
proceso para ubicar a los empleados que se moverán de una
agencia, dispuesto en el Memorando Especial 13-2021, la OATRH
ocupa un rol fundamental en cada uno de los pasos a seguir.
En consideración a la doctrina legal antes expuesta, muy en
particular, a las facultades delegadas a la OATRH en materia de
movilidad de empleados gubernamentales, concluimos que la
OATRH es parte indispensable en este asunto. Por consiguiente, la
Comisión actuó de manera irrazonable al no ordenar su
comparecencia y al denegar su solicitud de intervención. Lo antes,
con el efecto de que, el dictamen recurrido es nulo. En su
consecuencia determinamos que procede permitir la intervención de
OATRH como parte indispensable en el proceso administrativo de
rigor. El primer error señalado se cometió. Por tratarse de un error
sobre un asunto jurisdiccional de la agencia, se hace innecesario
atender los restantes errores señalados.
IV.
Por los fundamentos antes discutidos, revocamos la
Resolución recurrida y devolvemos el asunto a la Comisión para que
proceda conforme a lo aquí resuelto. It seems that there are no court ruling citations in the provided part of the court ruling. Therefore, no replacements are necessary. The text remains unchanged.
====== Revised Court Ruling ======
KLRA202400270
Lo acordó el Tribunal y lo certifica la Secretaria del Tribunal
de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL XI
YAIRELEE SANTIAGO REVISIÓN
MÉNDEZ ADMINISTRATIVA
procedente del
Recurrida Departamento de
Asuntos del
Consumidor (DACo)
V.
KLRA202400223
Caso Núm.: PON-
OFERTAS AUTO PR
-0004520
CORP.
Sobre: COMPRA
Recurrente VENTA DE
VEHICULOS DE
MOTOR
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, 27 de junio de 2024.
Comparece ante nos, Ofertas Autos PR Corp. (Ofertas Auto o
recurrente) mediante una Petición de Revisión Judicial. Nos solicita
la revocación de una Resolución emitida y notificada el 4 de abril de
2024 por el Departamento de Asuntos del Consumidor, Oficina
Regional de Ponce (DACo). Mediante el referido dictamen, el DACo
declaró Ha Lugar la Querella presentada por la señora Yairelee
Santiago Méndez (Santiago Méndez o recurrida) en contra de la parte
recurrente.
Por los fundamentos que expondremos a continuación, se
confirma la Resolución recurrida.
I.
El 17 de agosto de 2023, la señora Santiago Méndez presentó
una Querella ante el Departamento de Asuntos del Consumidor
contra Ofertas Autos PR Corp. (Ofertas Auto) y Popular Auto, LLC
(Popular Auto).1 En ajustada síntesis, alegó que el 8 de julio de 2022
1 Apéndice de la parte recurrente, págs. 1-6.
Número Identificador
SEN2024_________ KLRA202400223
compró un vehículo de motor Toyota modelo C-HR 2018 por la
cantidad de $24,595.00. Indicó que adquirió la unidad vehicular
mediante un acuerdo de financiación con el Banco Popular. No
obstante, aseveró que el 12 de mayo de 2023 advino en conocimiento
de que su vehículo no tenía piezas originales. Argumentó que no
hubiera comprado dicho vehículo de conocer ese aspecto. Por lo
anterior, solicitó el saldo del balance de financiación y la devolución
del dinero depositado para la adquisición de la unidad vehicular.
En respuesta, el 9 de octubre de 2023, Ofertas Auto sometió
su Contestación a la Querella. [CITATION] En esencia, adujo que en mayo de
2023, la querellante solicitó que las piezas del vehículo fuesen
reemplazadas. Mencionó, además, que ésta posteriormente acudió
a la Unidad de Vehículos Hurtados donde inspeccionó su automóvil.
Luego de dicho trámite, indicó que el 19 de mayo de 2023 suscribió
el siguiente acuerdo:
Por este medio deseo informar que Ofertas Auto PR,
mediante representación del Sr. Rionald Rivera Torres,
se hace responsable del cambio de piezas del vehículo
Toyota C-HR, 2018, tablilla IZ0-349, Serie
NMTKMBX5JR052496, para completar el registro de las
nuevas piezas.
Estando así conforme la Sra. Yairelee Méndez con el
trámite de reasignar las piezas del vehículo. [CITATION]
En vista de ello, señaló que la querellante formalizó libre y
voluntariamente el precitado acuerdo. En otros extremos, levantó
como defensas afirmativas la doctrina de actos propios y manos
libres. Argumentó, a su vez, que la Querella presentada no justifica
la concesión de remedios.
Así las cosas, el 3 de noviembre de 2023, el DACo celebró una
vista administrativa en la cual comparecieron la señora Santiago
[CITATION] KLRA202400223
Méndez por derecho propio, Ofertas Auto y Popular Auto
acompañados de sus representantes legales.4
Luego de evaluar la prueba admitida en evidencia, el 4 de abril
de 2024, la agencia recurrida emitió una Resolución en la cual
declaró Ha Lugar la Querella presentada en contra de las entidades
recurrentes. Al respecto, formuló las siguientes determinaciones de
hechos:
. El 8 de julio de 2022 la querellante, Yairelee Santiago
adquirió el vehículo de motor usado Toyota modelo CHR
del año 2018 en Ofertas Auto PR Corp. en Ponce, Puerto
Rico por la cantidad de $24,595.00 y entreg[ó] en “trade
in” un vehículo que anteriormente había adquirido en
este mismo dealer, marca Hyundai, Modelo Elantra del
año 2017, por el cual obtuvo un crédito de $15,544.00,
según surge de la orden de compra.
2. La querellante indica que Ofertas Auto PR le aprobó
la adquisición del vehículo por lo que ella procedió a
probar el mismo e indicó que se sentía bien.
3. La querellante firmó documentos de financiamiento,
seguro, orden de compra y un documento que
certificaba que el baúl no estaba funcionando ni las
luces por el equipo de música y que aceptaba la guagua
aún [sic] sabiendo esto.
4. La querellante indica que, al momento de la compra
del vehículo, la querellada Ofertas Auto PR, nunca le
indicó que ese vehículo había sido chocado.
5. Luego de diez (10) meses con el vehículo, para el 12
de mayo de 2023, la querellante visitó un dealer en
Caguas e intentó dar el vehículo en “trade in”. Es en ese
dealer quien le indican a la querellante, que el vehículo
tenía piezas que no le pertenecían.
6. La querellante afirma que ese mismo día (12 de mayo
de 2023) fue a Ponce y visitó el dealer Auto Ofertas PR
para indicarle al vendedor Francisco Barrios y al Sr.
Rionald Rivera que el vehículo contenía piezas que no le
pertenecían
7. La querellante afirma que el Sr. Rionald Rivera
verificó el vehículo y le notificó que todo en el vehículo
estaba bien y en orden. Ante esto la querellante les
solicitó una certificación a esos efectos, pero nunca le
entregaron la misma.
8. La querellante afirma que el lunes próximo ella llamó
al Sr. Rionald Rivera y este le indicó que no le podía dar
4 Tal información surge de la relación de hechos contenida en el dictamen
administrativo emitido el 4 de abril de 2024. Véase Apéndice de la parte
recurrente, pág. 16 KLRA202400223
la certificación, porque no se trata de un vehículo que
ella adquiriera en ese momento.
9. Al no recibir la certificación, la querellante, procedió
a obtener una cita en Vehículos Hurtados para poder
verificar que en efecto todo se encontraba bien con el
vehículo.
[SEGMENT 13]
10. La querellante siega que, en Vehículos Hurtados en
Ponce, el agente Alvarado inspección[ó] el vehículo y le
indicó que tenían que quedarse con el vehículo por que
ten[í]a piezas mutiladas, que no eran del mismo y le
pasó el caso al agente León. La querellante les indicó
que ella desconocía sobre eso, que el vehículo había sido
comprado en el dealer Oferta Auto PR Corp. y que nunca
le indicaron que había sido chocada anteriormente;
luego de esto el agente León llam[ó] al dealer.
11. EI Sr. Rional Rivera, representante de la parte
querellada indica que el oficial León de vehículos
hurtados le indicó que tenían que cambiar las piezas
para que la querellante pudiera reasignar las piezas en
CESCO al ser la dueña del vehículo.
12. El 19 de mayo de 2023 la querellante firmó
documento en el dealer Ofertas Auto PR Corporación de
que estaba de acuerdo en que se reasignaran las piezas
del vehículo, autorizando al dealer a llevárselo para el
cambio de piezas. El dealer le entregó un vehículo a la
querellante para su uso, mientras llevaba el vehículo al
taller para cambio de piezas y pintura para que luego se
pudieran reasignar los números de las piezas del
vehículo en CESCO.
13.Luego que la parte querellada cambiara las piezas,
la querellante reasignó ante CESCO las nuevas piezas.
14.La querellante indica que luego que se reasignaran
las piezas, el dealer evaluaría tomar el vehículo en
“trade in”, pero que nunca eso ocurrió.
15. La querellante alegó en la vista administrativa que
luego de reasignar las piezas visit[ó] un dealer Toyota
auscultando la posibilidad de dar el vehículo en “Trade
in” e indica que solo le ofrecieron trece mil dólares
($13,000.00) por el vehículo, según ella, por aparecer en
sistema que había sido chochado anteriormente y por
ser tanta la cantidad que todavía debía el vehículo. La
querellante indica que nadie le quiere dar lo que debe.
16. En la vista administrativa la parte co-querellada
Popular Auto pidió la desestimación en su contra por
no existir una reclamación en su contra en esta
querella. Tanto la querellante, como la parte co-
querellada Ofertas Auto PR Corp. estuvieron de acuerdo
y no se opusieron.
17. La solicitud de la querellante, según ésta sigue
siendo la presentada al momento de la presentación de
la querella. Es decir, solicitud de devolución del dinero
pagado por la unidad y el saldo del balance de la unidad KLRA202400223
financiada por la Popular Auto, junto a todo lo que
proceda en derecho.5
Así expuesto, el DACo concluyó que Ofertas Auto incumplió
con su deber de informar a la parte recurrida la verdadera condición
del vehículo. Ante tales hechos, resolvió que su consentimiento
estuvo viciado al momento de la adquisición del automóvil. Por lo
anterior, decretó la nulidad del contrato de compraventa, y en efecto,
dispuso su resolución. Ordenó, también, la devolución del anterior
vehículo objeto del arreglo trade in, y en caso de no tener tal unidad,
regresar la cuantía correspondiente a su valor ($15,544.00). A su
vez, requirió la devolución del pago de mensualidades depositadas a
favor de Popular Auto.
Inconforme con el dictamen agencial, el 1 de mayo de 2024,
Ofertas Auto acudió ante nos mediante una Petición de Revisión
Judicial. En su recurso, señala la comisión de los siguientes errores:
ERRÓ EL DACO AL CONCLUIR QUE LA
RECURRENTE INCURRIÓ EN DOLO GRAVE QUE DA
LUGAR A LA RESOLUCION DEL CONTRATO ENTRE
LAS PARTES, YA QUE EL CONTRATO FUE
CONFIRMADO POR LA RECURRIDA.
ERRÓ EL DACO AL DECLARAR HA LUGAR LA
QUERELLA Y ORDENAR LA CANCELACIÓN DEL
CONTRATO DE VENTA AL POR MENOR A PLAZOS
CON POPULAR AUTO, LA DEVOLUCIÓN DEL
VEHÍCULO ENTREGADO EN “TRADE IN”, O EL
VALOR DE ESTE AL MOMENTO DE LA
COMPRAVENTA, LA DEVOLUCIÓN DE LAS
MENSUALIDADES PAGADAS POR LA RECURRIDA Y
EL RELEVO DEL CONTRATO DE VENTA AL POR
MENOR A PLAZOS.
El 6 de mayo de 2024, este Tribunal emitió una Resolución en
la cual ordenó a la parte recurrida a presentar su posición dentro
del término de veinte (20) días contados a partir de la notificación.
El 7 de mayo de 2024, la parte recurrente presentó una Certificación
de Notificación. El 14 de mayo de 2024, la representación legal de la
parte recurrente presentó una Moción Notificando Período de
5 Apéndice de la parte recurrente, págs. 2-4. KLRA202400223
Vacaciones. Así, transcurrido el término concedido a la parte
recurrida sin que esta haya comparecido, pasamos a resolver.
II.
A. Revisión judicial de las determinaciones administrativas
La Ley de Procedimiento Administrativo Uniforme del
Gobierno de Puerto Rico, Ley Núm. 38-2017, según enmendada, (3
LPRA sec. 9601 et seq.) (LPAU), se creó a los fines de uniformar los
procedimientos administrativos ante las agencias.
Consecuentemente, desde la aprobación del procedimiento provisto
por la LPAU, los entes administrativos están precisados a conducir
sus procesos de reglamentación, adjudicación y concesión de
licencias y permisos de conformidad con los preceptos de este
estatuto y el debido proceso de ley. [CITATION]
La Sección 4.1 de la LPAU, dispone que las decisiones
administrativas finales pueden ser revisadas por el Tribunal de
Apelaciones. (3 LPRA sec. 9671). La finalidad de esta disposición es
delimitar la discreción de los organismos administrativos para
asegurar que estos ejerzan sus funciones conforme a la ley y de
forma razonable. [CITATION] Véase, además, [CITATION] Es decir, la revisión judicial
permite a los tribunales garantizar que las agencias administrativas
actúen dentro de los márgenes de las facultades que le fueron
delegadas por ley. [CITATION] A su vez, posibilita el poder
constatar que los organismos administrativos “cumplan con los
mandatos constitucionales que rigen el ejercicio de su función,
especialmente con los requisitos del debido proceso de ley”. Íd. Así,
la revisión judicial constituye el recurso exclusivo para revisar los KLRA202400223
méritos de una decisión administrativa sea esta de naturaleza
adjudicativa o de naturaleza informal. [CITATION].
Es norma reiterada que las decisiones de los organismos
administrativos están revestidas de una presunción de regularidad
y corrección, [CITATION]. Esto
debido a que, mediante esta norma se reconoce el peritaje del que
gozan los organismos administrativos en aquellas materias que le
han sido delegadas por ley. [CITATION].
Nuestro máximo Foro ha establecido que, al ejercer la revisión
judicial los tribunales no pueden descartar de forma absoluta la
determinación de una agencia, sino que primero tienen que
examinar la totalidad del expediente y determinar si la
interpretación de la agencia representó un ejercicio razonable de su
discreción administrativa, así fundamentado en la pericia particular
de esta, en consideraciones de política pública o en la apreciación
de la prueba. [CITATION].
Cónsono con lo anterior, la sección 4.5 de la LPAU establece
que los tribunales deben sostener las determinaciones de hechos de
las agencias si están basadas en "evidencia sustancial que obra en
el expediente administrativo". (3 LPRA sec. 9675). Como vemos, la
norma anterior nunca ha pretendido ser absoluta. Por eso, el
Tribunal Supremo ha resuelto con igual firmeza que los tribunales
no pueden extender un sello de corrección, so pretexto de
deferencia, a las determinaciones o interpretaciones administrativas
irrazonables, ilegales, o simplemente, contrarias a derecho. Super KLRA202400223
[CITATION]
Sin embargo, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION]. Por ende, "los tribunales
[SEGMENT 14]
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". [CITATION]. Lo anterior responde a
la vasta experiencia y conocimiento especializado que tienen las
agencias sobre los asuntos que le son encomendados. [CITATION].
Al revisar las decisiones de las agencias, el criterio rector que
debe guiar a los tribunales es la razonabilidad de la actuación,
aunque ésta no tiene que ser la única o la más razonable. [CITATION]. Por lo tanto,
al momento de examinar un dictamen administrativo se determina
que: (1) la decisión administrativa no está basada en evidencia
sustancial; (2) la agencia erró en la aplicación de la ley (3) el
organismo administrativo actuó de manera irrazonable, arbitraria o
ilegalmente; o (4) su actuación lesiona derechos constitucionales
fundamentales, entonces la deferencia hacia los procedimientos
administrativos cede. [CITATION].
En esta tarea, los foros judiciales analizarán los aspectos
siguientes: (1) si el remedio concedido por la agencia fue apropiado;
(2) si las determinaciones de hecho que realizó la agencia están
sostenidas por evidencia sustancial, y (3) si las conclusiones de
derecho fueron correctas. [CITATION]. Mientras que, las determinaciones de hecho KLRA202400223
se deben sostener si las mismas se basan en evidencia sustancial
que surja de la totalidad del expediente administrativo, [CITATION], las
determinaciones de derecho pueden ser revisadas en su totalidad.
[CITATION].
Si bien es cierto que la revisión judicial no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo, [CITATION], los
tribunales revisores descartarán el criterio de los entes
administrativos cuando "no se pueda hallar fundamento racional
que explique o justifique el dictamen administrativo". [CITATION]. Si la interpretación y la aplicación del
derecho no es correcta, el foro apelativo está obligado a intervenir.
[CITATION].
"En esas circunstancias, [el foro apelativo] cederá la deferencia que
merecen las agencias en las aplicaciones e interpretaciones de las
leyes y los reglamentos que administra". [CITATION]. Véase, además,
[CITATION].
B. Derecho de contratos
El contrato es el negocio jurídico biliteral por el cual dos o más
partes expresan su consentimiento en la forma prevista por la ley,
para crear, regular, modificar o extinguir obligaciones. Artículo 1230
del Código Civil (31 LPRA sec. 9751). Así, el Artículo 1232 del Código
Civil establece que, “[e]s facultativo contratar o no hacerlo, y hacerlo,
o no, con determinada persona. Estos derechos no pueden ejercerse
abusivamente ni contra una disposición legal. Las partes pueden
acordar cualquier cláusula que no sea contraria a la ley, a la moral
o al orden público”. (31 LPRA sec. 9753). Lo acordado en los
contratos tiene fuerza de ley entre las partes, ante sus sucesores y
====== End of Part of a Court Ruling ====== KLRA202400223
ante terceros en la forma que dispone la ley. Artículo 1233 del
Código Civil (31 LPRA sec. 9754). En adición, “cuando los términos
de un contrato son claros y no crean ambigüedades, estos se
aplicarán en atención al sentido literal que tengan”. [CITATION]
Así pues, el contrato queda perfeccionado desde que las partes
manifiestan su consentimiento sobre el objeto y la causa, salvo en
los casos en que se requiere el cumplimiento de una formalidad
solemne o cuando se pacta una condición suspensiva. Artículo 1237
del Código Civil (31 LPRA sec. 9771). Según establece el Artículo
1271 del Código Civil (31 LPRA sec. 9881), los tratos previos a la
perfección del contrato deben desarrollarse conforme a la lealtad y
la buena fe entre los probables contratantes. Así, se exige
especialmente el deber de colaborar en la formación del contrato,
obtener y proporcionar información de circunstancias de hecho y
derechos relevantes, mantener la confidencialidad de la información
recibida y conservar el bien que será objeto del contrato futuro. Íd.
De otro lado, nuestro ordenamiento jurídico permite que los
contratos puedan ser anulados. Así pues, la invalidez es una
sanción legal que, mediante una decisión judicial, priva a un negocio
jurídico de sus efectos propios por adolecer de un vicio originario,
esencial e intrínseco al acto. Artículo 341 del Código Civil (31 LPRA
sec. 6311). La invalidez puede invocarse por vía de acción o de
defensa. Íd. A su vez, el Artículo 342 del Código Civil (31 LPRA sec.
6312) establece que,
[e]l negocio jurídico puede ser nulo o anulable.
Es nulo:
(a) si el objeto, la causa o el consentimiento son inexistentes;
(b) si el objeto o la causa son ilícitos;
(c) si carece de las formalidades exigidas por la ley para su
validez; o
(d) si es contrario a la ley imperativa, la moral o el orden
público. KLRA202400223
Es anulable si el otorgante tiene incapacidad de obrar, si
concurre algún vicio de la voluntad, o si el acto adolece de
un defecto de forma no solemne.
Asimismo, los vicios de la voluntad son el error, el dolo, la
violencia y la intimidación. Artículo 285 del Código Civil (31 LPRA
sec. 6191). En vista de ello, el negocio jurídico en el que medie un
vicio de la voluntad es anulable si el vicio fue determinante para su
otorgamiento. Artículo 286 del Código Civil (31 LPRA sec. 6192).
Consecuentemente, el causante del dolo, la violencia o la
intimidación queda sujeto a la indemnización de los daños y
perjuicios resultantes. Íd. En el caso de error, la parte que lo invoca
debe restituir los gastos incurridos por la parte que no incurrió en
el error. Íd. La prueba de la existencia del vicio y de su carácter
incumbe a quien lo alega. Íd.
A tales efectos, el dolo se entiende como un complejo de malas
artes, contrario a la honestidad e idóneo para sorprender la buena
fe ajena, generalmente para beneficio propio, en que viene a
resumirse el estado de ánimo de aquel que no solo ha querido el
acto, sino que, además, se ha previsto y querido las consecuencias
antijuridicas provenientes de él. [CITATION]
144 DPR 659, 666 (1997). El dolo grave es la acción u omisión
intencional por la cual una parte o un tercero inducen a otra parte
a otorgar un negocio jurídico que de otra manera no hubiera
realizado. Artículo 292 del Código Civil (31 LPRA sec. 6211). El dolo
grave es el que causa, motiva, sirve de ocasión y lleva a celebrar el
contrato, de modo tal que, sin él, este no se hubiera otorgado. [CITATION] supra.
Mientras, el dolo incidental es aquel cuya existencia no
produce la nulidad del contrato, sino que se limita a obligar al que
lo empleó, a indemnizar el daño causado. Artículo 294 del Código
Civil (31 LPRA sec. 6213). Ello es así, ya que este tipo de dolo no
tiene una influencia decisiva en la esencial de la obligación. [CITATION] KLRA202400223
[CITATION], supra. En el dolo incidental, contrario al
dolo causante, existe la voluntad de contratar del perjudicado, pero
hay engaño en el modo en que se celebra el contrato. Íd.
Los efectos contrapuestos de cada tipo de dolo son notables.
Es decir, mientras que el dolo causante produce la nulidad del
contrato, el incidental permite únicamente la indemnización por
daños y perjuicios. [CITATION], supra. Así
pues, resulta menester señalar que los dos tipos de dolo vician el
consentimiento en el origen o en la formación del contrato, esto es,
en la etapa de la contratación. Íd.
III.
En el recurso de epígrafe, la parte recurrente planteó que erró
el DACo al concluir que incurrió en dolo grave que da lugar a la
resolución del contrato entre las partes, ya que el contrato fue
confirmado por la recurrida. Asimismo, sostuvo que incidió el DACo
al declarar ha lugar la Querella y ordenar la cancelación del contrato
de venta al por menor a plazos con Popular Auto, la devolución del
vehículo entregado en “trade in”, o el valor de este al momento de la
compraventa, la devolución de las mensualidades pagadas por la
recurrida y el relevo del contrato de venta al por menor a plazos.
De una revisión del expediente ante nos, específicamente de
las determinaciones de hechos de la Resolución recurrida surge que,
en ningún momento la parte recurrente le indicó a la recurrida que
[SEGMENT 15]
el vehículo había sido chocado, ni que tenía piezas que no le
pertenecían. La parte recurrente solo le informó sobre unos
problemas con las luces y el baúl por causa del equipo de música.
Consecuentemente, luego de transcurridos diez (10) meses de
uso del vehículo la parte recurrida intentó dar el mismo en “trade
in” en otro concesionario y es cuando adviene en conocimiento de
que el vehículo que había comprado contenía piezas que no
correspondían al mismo, por haber sido chocado. Acorde a ello, la KLRA202400223
recurrida acudió a Auto Ofertas para indicarle al vendedor Francisco
Barrios y a Rionald Rivera que el vehículo contenía piezas que no le
pertenecían. Así las cosas, Rionald Rivera verificó el vehículo y le
indicó que todo en el vehículo estaba bien y en orden. Por lo cual, la
recurrida les solicitó una certificación a esos efectos, la cual nunca
recibió.
Posteriormente, la recurrida acudió a la oficina de Vehículos
Hurtados para verificar que en efecto todo se encontraba bien con el
vehículo. Entretanto, en Vehículos Hurtados el agente Alvarado
inspeccionó el vehículo y le indicó que tenían que quedarse con el
vehículo por que tenía piezas mutiladas, que no eran del mismo y le
pasó el caso al agente León. Luego, el agente León le indicó a Rionald
Rivera que tenían que cambiarle las piezas al vehículo para que la
recurrida pudiera reasignar las piezas en CESCO, al ser la dueña
del vehículo. Ulteriormente, la recurrida autorizó a la recurrente a
la corrección de las piezas a su costo. No obstante, decidió presentar
la Querella ante el DACo; en la cual dejó claro que de haber sabido
al momento de la compra que el vehículo había sido chocado no
habría adquirido el mismo.
Nuestro ordenamiento jurídico establece que, en el caso de la
venta de un vehículo usado, cuando el vendedor le oculta al
comprador que el vehículo fue impactado y reparado antes de la
compra, se incumple una condición esencial para la venta válida de
un vehículo de motor. [CITATION] Por lo cual, la parte vendedora actúa de manera dolosamente
grave viciando así el consentimiento del comprador, lo cual conlleva
la nulidad del contrato. Íd. No debemos obviar que, el dolo grave es
la acción u omisión intencional por la cual una parte o un tercero
inducen a otra parte a otorgar un negocio jurídico que de otra
manera no hubiera realizado. Artículo 292 del Código Civil, supra. KLRA202400223
De conformidad con los hechos aquí reseñados, y acorde con
el marco jurídico enunciado, procede que confirmemos la
determinación emitida por el DACo. Esto, pues la determinación del
DACo de anular el contrato se sostiene de la prueba presentada y
está correctamente aplicada al derecho vigente.
Indiscutiblemente, el dolo que permea en la controversia ante
nos es el dolo grave, pues la parte recurrida enfatizó que de haber
sabido al momento de la compra que el vehículo había sido chocado
no habría adquirido el mismo. Finalmente, reiteramos que el DACo
decretó correctamente la resolución del contrato de compraventa del
vehículo en controversia. La parte recurrente incumplió con su
deber de informar a la parte recurrida la verdadera condición del
vehículo al momento de pactarse la compraventa.
IV.
Por los fundamentos que anteceden, confirmamos el dictamen
administrativo recurrido.
Lo acordó y manda el Tribunal y lo certifica la Secretaría del
Tribunal de Apelaciones
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
CARMEN SILVA SERRANO REVISIÓN
Y/O RAÚL MARQUEZ ADMINISTRATIVA
CRUZ Procedente del
Departamento de
Recurrida Asuntos al
Consumidor
v. KLRA202300525
Núm.:
CLEMBER LLC CAG-2021-0002696
MANUEL CLEMENTE
ROSADO, SU ESPOSA Y LA Sobre:
SOCIEDAD LEGAL DE Contrato de obras y
GANANCIALES servicio
Recurrente
Panel integrado por su presidenta, la Jueza Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera
Álvarez Esnard, jueza ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de mayo de 2024.
Comparece ante nos el señor Manuel Clemente Rosado
(“Recurrente” o “señor Clemente Rosado”) mediante Recurso de
Revisión presentado el 10 de octubre de 2023. Nos solicita la
revocación de una Resolución emitida el 14 de agosto de 2023 y
notificada el 15 de agosto de 2023 por el Departamento de Asuntos
del Consumidor (“DACo”). Por virtud de la misma, el DACo declaró
Ha Lugar la Querella del caso de epígrafe. Oportunamente, el
Recurrente presentó una Solicitud de Reconsideración. Evaluados
sus argumentos, el 8 de septiembre de 2023, la aludida agencia
emitió una Resolución en Reconsideración, notificada el 13 de
septiembre de 2023, en la cual declaró No Ha Lugar la referida
petición.
Por los fundamentos que exponemos a continuación,
confirmamos el dictamen recurrido.
Número Identificador
SEN(RES)2024____________ KLRA202300525
I.
El 22 de julio de 2022, la señora Carmen Silva Serrano y el
señor Raúl Márquez Cruz (conjuntamente, “Recurridos”)
presentaron una Tercera Querella Enmendada contra el señor
Clemente Rosado ante el Departamento de Asuntos del
Consumidor.[CITATION] En ajustada síntesis, alegaron que el 23 de noviembre
de 2020 suscribieron un contrato de servicios con el representante
corporativo de Clember Corp. En lo concerniente, aseveraron que
pactaron la construcción de un muro de contención en el plazo de
dieciocho (18) semanas a cambio de $55,000.00. No obstante,
indicaron que el Recurrente empezó a ausentarse, a pesar de que
habían depositado el 95% del precio acordado. Adujeron que
remitieron a éste una carta certificada con acuse de recibo, en la
cual expusieron su inquietud en torno a la posibilidad de derrumbe
en el terreno. Sin embargo, alegaron que el correo postal devolvió
dicho comunicado, pues el Recurrente no acudió a buscar la
correspondencia. Advirtieron, además, que a la fecha del contrato
no existía la mencionada corporación debido a que el Departamento
de Estado revocó su incorporación. Por lo anterior, solicitaron la
nulidad del contrato y $78,125.34 en concepto de daños y
perjuicios.
En respuesta, el 15 de febrero de 2023, el señor Clemente
Rosado sometió su Contestación a Tercera Querella Enmendada.[CITATION] En
esencia, alegó que la parte querellante modificó el término para
completar la obra. Detalló que a mediados de febrero de 2021
acordaron verbalmente pausar los trabajos hasta el mes de abril de
2021. Adujo, además, que la parte querellante unilateralmente
resolvió el contrato de obras pese a que la ejecución había iniciado.
En torno a la corporación, indicó que el Departamento de Estado no
[CITATION] KLRA202300525
le notificó la revocación del certificado de incorporación. Así
expuesto, solicitó que el ente administrativo declarase No Ha Lugar
la reclamación presentada en su contra.
Luego de celebrar tres vistas administrativas3, el 14 de agosto
de 2023, el DACo emitió Resolución, notificada el 15 de agosto de
2023, en la cual declaró Ha Lugar la reclamación instada contra el
Recurrente.4 En el referido dictamen, formuló las siguientes
determinaciones de hechos:
. La parte querellante Carmen Silva Serrano, es una
persona retirada, ejercía la profesión de la medicina,
como médico generalista (en lo sucesivo la Querellante).
2. La Querellante contrató los servicios del Ing. José Luis
González Cruz para que le realizara unos planos, para la
construcción de un muro de contención ya que su
residencia localizada en el Bo: Montones del Pueblo de
Las Piedras, estaba presentando grietas en el área de la
marquesina producto de la inestabilidad del terreno
donde está enclavada la residencia1.
3. El Sr. Manuel Clemente Rosado, es una persona mayor
de edad, contratista de trabajos de construcción,
casado con Myriam Cecilia Bernier Rodríguez bajo el
régimen de Capitulaciones Matrimoniales, la cuales
fueron otorgada el 26 de mayo de 2007, ante el
notario público Adrián Omar Díaz Díaz.
4. El Ing. González Cruz le recomendó a los Querellantes,
contratar al Sr. Manuel Clemente Rosado para la
realización de la construcción del muro de contención.
5. El 23 de noviembre de 2020 los Querellantes
suscribieron un Contrato de Obras (en lo sucesivo el
Contrato) con Clember Corp. representada por su
Presidente Manuel Clemente Rosado para la
construcción de un muro de contención en la
residencia de los Querellantes. En la cláusula primera
se estableció la siguiente descripción del proyecto:
Descripción del Proyecto: …La descripción de este
proyecto está sujeta al diseño realizado por el Ing.
José L. González Cruz. Se construirá muro de
contención en acero estructural y concreto. Se
realizará acarreo de material propuesto por diseño
para rellenar y conseguir nivelación con patio. No
se instalará ninguna grama y/o terminado
vegetativo en el relleno propuesto. Los detalles de
los servicios a ofrecerse bajo la construcción
fueron presentados a la Sra. Carmen Silva Serrano
y el Sr. Raúl Márquez Cruz mediante cotización.
Véase Anejo I “Cotización”. Si hubiese una disputa
entre los servicios y labores que comprender el
presente Contrato de Servicios, prevalecerá lo
detallado en la Cotización.
[SEGMENT 16]
3 Surge del expediente que el DACo celebró dichas vistas durante los siguientes
días: el 16 de febrero de 2023, el 30 de marzo de 2023 y el 4 de mayo de 2023.
4 Apéndice del Recurrente. págs. 50-63. KLRA202300525
6. Al momento de los Querellantes suscribir el Contrato,
no se incluyó el Anejo I de Contrato. El Querellado no
presentó evidencia de que los Querellantes firmaran
el Anejo I identificado como Cotización, el cual
formaría parte del Contrato.
7. La Compañía Clember Corp. entró en vigencia el 3 de
noviembre de 2017. Sin embargo, a la fecha que los
Querellantes firmaron el Contrato con Clember Corp.
esa corporación no existía, ya que el 31 de diciembre
de 2019, el Secretario de Estado, Elmer L. Román
González certificó que la corporación Clember Corp.
con número de registro número 401096, había sido
cancelada.
8. El Querellado a pesar de que sabía que Clember Corp.
no existía como Corporación preparó un contrato de
obras, compareciendo como Presidente de un ente
jurídico inexistente, sin notificarle de esa realidad
jurídica a los Querellantes.
9. El Querellado no demostró una buena fe contractual
cuando representó a una corporación inexistente en
la firma de un contrato identificándose como
Presidente de la misma, y cobrando los pagos
efectuados por la Querellante a una Corporación
inexistente. Por tal razón, responde en su carácter
personal, de las obligaciones contraídas en el
Contrato que firmó con los Querellantes.
10. En la cláusula número 4 se estableció la vigencia del
contrato y una cláusula de penalidad. En dicha
cláusula número 4 se dispuso lo siguiente:
El contrato estará vigente desde la fecha de su
ejecución hasta tanto se complete el proyecto de
remodelación y construcción y el mismo sea
aprobado por el Cliente una vez culminado, salvo
que una de las partes termine el Contrato con
anterioridad a ello. El término de este contrato
podrá ser extendido bajo el consentimiento escrito
de ambas partes.
Cláusula de Penalidad: La cotización realizada por
Clember a el Cliente indica que el proyecto se
realizará en 18 semanas[.] Si el proyecto se atrasa
sin que medie justa causa, CLEMBER deberá
pagarle al Cliente $20.00 diarios por ¯ cada día de
atraso.
11. Los trabajos de construcción del muro iniciaron el 25
de noviembre de 2020.
12. El Querellado no le envió una comunicación por
escrito a los Querellantes solicitándole una extensión
de tiempo del contrato como resultado de que sus
empleados se hubiesen enfermado por el COVID 19, y
tuvieran que guardar cuarentana por esa situación. El
Querellado tampoco, presentó una orden de cambio
solicitando una de extensión de tiempo del contrato,
por los días que la lluvia impidió realizar los trabajos
de construcción.
13. La compensación que recibiría el Querellado sería la
cantidad de $55,000.00 cuyos pagos se realizarían de la
siguiente forma: KLRA202300525
Tarea Descripción Duración Costo
1. Firma del Contrato Firma de $27,500.00
(Comprende 50%) Contrato
. Fundidos de
$8, 250.00
Cimiento semanas
(Comprende 15%)
3. Fundido 1ra Fase
$8,250.00
del Muro semanas
(Comprende 15%)
. Fundido 2da Fase
$8, 250.00
Muro (Comprende semanas
%)
5. Completado relleno
$2,750.00
(Comprende 5%) semanas
. Cerrar contrato en
todas sus partes
$55,000.00
semanas
Total
14. La Querellante le pagó al Querellado la cantidad de
$52,250.00. Los pagos se realizaron durante las
siguientes fechas mediante “Manager Check” de la
Cooperativa Las Piedras.
a. 23 de noviembre de 2020 $27, 500.00
b. 10 de diciembre de 2020 $ 8,500.00
c. 19 de enero de 2021 $8, 500.00
d. 9 de febrero de 2021 $ 8,500.00
15. A pesar de que las fases no estaban completadas la
Querellante pagaba las mismas a solicitud del
Querellado porque le indicaba a la Querellante que
necesitaba dinero para materiales para poder
continuar con los trabajos. Para la fecha que la
Querellante efectuó el último pago, la obra de
construcción del muro estaba a un 75% de
construcción.
16. El Querellado incumplió con la cláusula número 9 del
contrato ya que no le entregó a los Querellantes ninguna
factura o informe de progreso de la obra contratada a
pesar de que la Querellante le solicitaba esa información.
La cláusula número 9 del contrato indica lo siguiente:
Reportes y Factura: CLEMBER Facturar[á] al cliente,
inmediatamente por sus servicios terminados en cada
fase, proveyendo un reporte y-o factura por escrito de
las actividades realizadas durante ese periodo, a partir
de la firma de contrato. Los reportes y-o facturas
debe[n] ser entregadas a la mano y-o enviados vía
correo regular o electrónico a las direcciones que se
proveen en el contrato. En la tabla de la Sección 12 de
este Contrato se muestra el tipo de servicios que
CLEMBER proveerá al Cliente, y una agenda de pagos.
17. Luego de efectuado el pago de $8,500.00 el 9 de
febrero de 2021, el Querellado comenzó a ausentarse
de la obra de construcción del muro en la residencia KLRA202300525
de los Querellantes. La Querellante llamó en varias
ocasiones al Querellado, quien le informaba que iría el
próximo día con su personal, sin embargo, no se
presentaba.
18. Con fecha del 27 de mayo de 2021 los Querellantes le
enviaron una carta al Querellado en la cual le
indicaron que en varias ocasiones lo habían llamado
para saber cuándo continuaría con la construcción del
muro. También le informaban de su preocupación de
su hogar ante la posibilidad del derrumbe del terreno.
La carta le fue enviada a la dirección que las partes
acordaron para notificar cualquier aviso bajo el
contrato de construcción. La cual era la siguiente:
Att. Manuel Clemente Rosado
CLEMBER CORP.
Estancias de Rey 607
Caguas, PR 00725
La carta fue enviada por correo certificado con
acuse y recibo. Sin embargo, la misma no fue
reclamada por el Querellado.
19. El Querellado dejó el proyecto abandonado, con una
fosa profunda, que en la medida que transcurría el
tiempo y por las inclemencias del tiempo se
aposentaba el agua, y ocurrían deslizamientos que
ponían en peligro la estructura de la residencia de los
Querellantes.
20. Al momento del Querellado abandonar la obra había
construido un 75% del muro.
21. El 23 de julio de 2021 los Querellantes radicaron ante
este Departamento la Querella de epígrafe en la cual
solicitaron que el Querellado finalizara los trabajos
para los cuales fue contratado y lo devolviera el dinero
que le pagó. La Querellante se comunicó con el
Querellado luego de presentada la Querella y éste le
informó que no tenía empleados para continuar la
obra.
22. El 12 de agosto de 2021 los Querellante presentaron
una Enmienda a la Querella en donde notificaron que
contrataron los servicios del Sr. Juan Navarro de LLC
Contractor (en lo sucesivo el Sr. Navarro) para
continuar la Obra y solicitaron que el Querellado le
devuelva el dinero que le pagó en adición a los daños
ocasionados por la espera que el Querellado realizara
los trabajos.
23. Los trabajos del Sr. Navarro se hicieron en dos fases. La
primera fase fue la de mitigación con el propósito de evitar
el colapso de la vivienda de los Querellantes ya que había
iniciado la temporada de huracanes y las lluvias podían
provocar deslizamientos de terrenos y la residencia de los
Querellantes colapsar. En la primera fase se estabilizó el
terreno, se rellenó el área de construcción.
24. En la primera fase los Querellantes incurrieron en los
siguientes gastos:
[SEGMENT 17]
Item Descripción Costo
Alquiler de Movimiento $13, 937. 15
equipos de tierra
(sacar la casa
de peligro)
Relleno
camiones $15,610.00
Total $29,547.15 KLRA202300525
25. El 8 de diciembre de 2021, la Querellante hizo un
contrato con el Sr. Navarro para la terminación del
muro. El precio pactado por la mano de obra sin
incluir los materiales fue la cantidad de $20,000.00.
Ese día la Querellante le entregó al Sr. Navarro la
cantidad de $10,000.00 en efectivo como depósito. El
balance pendiente de $10,000.00, la Querellante los
pagó mediante dos pagos de $5,000 cada uno. El
primer pago fue efectuado el día 24 de enero de 2022
y el segundo pago fue efectuado el 3 de marzo de
2022.
26. Como resultado del Querellado abandonar la obra,
dejó los materiales a la intemperie y el varillaje
expuesto sin ningún tipo de protección por lo que el
Sr. Navarro, le cobró a la Querellante la cantidad de
$4,500.00 para la restauración de la obra y de los
materiales que dejaron expuestos.
27. En gastos de materiales y alquiler de equipos para la
segunda fase, la Querellante pagó la cantidad de
$15,985.55, lo cual es producto de las siguientes
partidas:
Fecha Descripción Costo
8-12-2021 Movimiento de $1,500.00
tierra alquiler
digger y
excavadora
9-12-2021 Alquile[r] $1,500.00
digger y
excavadora
15-12-2021 (Steel Services)
Reforcing Steel
(16 quintales
de varilla)
1-13-22 Criollo Ready $950.75
Mix
1-14-2022 Recibo $225.04
1-15-2022 Santana
Comercial
(varilla)
1-17-2022 Criollo Ready $796.11
Mix
1-24-2022 Dos días $1,500.00
alquiler mini-
excavadora
1-25-2022
día mini- $750.00
excavadora
1-28-2022 Criollo Ready $746.49
Mix
2-1-2022 Criollo Ready $548.02
Mix
19-2-2022
día, $1, 900.00
Excavadora,
digger y Rolo
2-3-2023 Alquiler $250.00
Bomba para
tirar concreto
4-3-2022 Alquiler de un $750.00
día y acarreo
TOTAL $15,988.5
28. El 5 de enero de 2022 el Querellado visitó la
residencia de los Querellantes a recoger unos KLRA202300525
materiales de construcción que había dejado entre los
que se encontraban escaleras, andamios, gatos.
29. El 22 de julio de 2022 la Lcda. María I. Ramos
Artunduaga abogada de los Querellantes enmendó la
Querella, para que se incluyera como Querellados al Sr.
Manuel Clemente Rosado, su esposa y la Sociedad de
Bienes Gananciales.
30. La Co-querellada Clember LLC entró en vigencia 28 de
Junio de 2021 como una Compañía de Responsabilidad
Limitada. Por tal razón, al momento de los Querellantes
suscribir el contrato con el Querellado esa corporación no
existía.
31. Para la fecha que los Querellantes contrataron al
Querellado para realizar la construcción del muro en
su residencia, el Querellado no figuraba inscrito en el
Registro de Contratistas de conformidad al Artículo 2
de la Ley Núm. 146 del 10 de agosto de 1995, según
enmendada y el Reglamento para el Registro de
Contratistas (8172) de este Departamento. Para dicha
fecha el Querellado no estaba autorizado a ejercer la
profesión de Contratista de la Construcción ya que no
contaba con una licencia vigente emitida por este
Departamento.[CITATION] (Énfasis nuestro).
De conformidad a lo anterior, la agencia resolvió que “[e]l
Querellado le hizo una falsa representación a los querellantes,
cuando le llevó un contrato para la firma, y ellos partiendo de
la buena fe y creencia firmaron el contrato y emitieron pago a
una corporación inexistente”. (Énfasis nuestro).[CITATION] A su vez,
dictaminó que, a pesar de las múltiples oportunidades brindadas
por los Querellantes, éste incumplió con su obligación al abandonar
las obra. En vista de lo anterior, le ordenó pagar $71,536.10 en
concepto de las siguientes partidas: (1) $29, 547. 15 por trabajos de
mitigación para evitar el colapso de la residencia; (2) $40, 488.95
para finalizar la construcción del muro; y (3) $1,500.00 en
honorarios de abogados.
En desacuerdo, el 4 de septiembre de 2023, el Recurrente
presentó una Solicitud de Reconsideración.[CITATION] En esencia, adujo que
la señora Silva Serrano le comunicó vía telefónicamente que no
regresase a completar la construcción. Añadió que no obra prueba
del expediente que devele que éste conociera sobre la cancelación de
[CITATION] KLRA202300525
su corporación a la fecha en que firmaron contrato. Por tanto,
sostuvo que no actuó de mala fe ni medió dolo de su parte.
Examinados los argumentos esgrimidos, el 8 de septiembre de 2024,
el DACo emitió Resolución en Reconsideración, notificada el 13 de
septiembre de 2023, en la cual declaró No Ha Lugar la aludida
petición.[CITATION]
Inconforme con el dictamen administrativo, el 10 de octubre
de 2023, el señor Clemente Rosado acudió ante nos mediante un
recurso de Revisión Administrativa. En su escrito, presentó los
siguientes señalamientos de error:
DACO cometió error en la apreciación de la prueba y al
determinar que las partes recurridas no tenían conocimiento
de la cotización cuando de las alegaciones 7 y 8 de la Tercera
Querella Enmendada surge que el recurrente les presentó
una cotización y las partes recurridas estuvieron de acuerdo
con la misma.
DACO cometió error en la apreciación de la prueba y al
determinar que la parte recurrente debió presentar evidencia
de que los recurridos firmaron la cotización.
DACO cometió error en la apreciación de la prueba y al
determinar que las recurridos no tenían conocimiento de la
cotización el cual era parte integral del contrato de servicios
firmado por las partes cuando del Exhibit III de los recurridos
surge que la última página se titula “Anejo I cotización”.
DACO cometió error en la apreciación de la prueba y al
determinar que a pesar de que las partes recurridas
aceptaron que recibieron el contrato de servicios con una
página que leía “Anejo I cotización” no recibieron de parte del
recurrente la cotización.
DACO cometió error en la apreciación de la prueba y al
determinar que a las partes suscribir el contrato el
recurrente no incluyó el Anejo I del contrato cuando las
partes recurridas aceptaron que recibieron el contrato con
una hoja que se titulaba “Anejo I cotización” y una persona
prudente y razonable pediría la cotización mencionada en
dicha hoja y en la cláusula primera del contrato, y no
firmaría un contrato incompleto.
DACO cometió error en la apreciación de la prueba y al
determinar que el recurrente sabía que Clember Corp., no
existía como corporación cuando las partes firmaron el
contrato, cuando las partes recurridas no presentaron
prueba del alegado conocimiento del recurrente de la
revocación de la corporación por parte del Departamento de
Estado y cuando el recurrente testificó, sin ser refutado
mediante contra interrogatorio, que desconocía que Clember
Corp., no existía a la fecha de la firma de contrato de obras.
DACO cometió error en la apreciación de la prueba y al
determinar que el recurrente demostró mala fe contractual
cuando representó a una corporación inexistente cuando las
partes recurridas no presentaron prueba del alegado
[SEGMENT 18]
[CITATION] ====== Processed Court Ruling ======
KLRA202300525
conocimiento del recurrente de la revocación de la
corporación por parte del Departamento de Estado y cuando
el recurrente testificó, sin ser refutado mediante contra
interrogatorio, que desconocía que Clember Corp., no existía
a la fecha de la firma de contrato de obras.
DACO cometió error en la apreciación de la prueba y al
determinar que el contrato entre las partes requería de una
orden de cambio para extender el término del contrato
cuando de dicho contrato no surge tal requerimiento para el
contrato ser extendido.
DACO cometió error en la apreciación de la prueba y al
determinar que las fases o tareas 1, 2 y 3 no estaban
terminadas cuando el recurrente requirió los pagos cuando
el recurrente testificó y mostró fotos de las obras realizadas
durante su testimonio, sin ser refutado mediante el contra
interrogatorio o prueba pericial, que dichas fases fueron
completadas.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que en el inciso 11 de la
cotización, que era parte del contrato entre las partes, se
cotizó un protocolo de COVID-19.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que durante la relación
contractual entre les partes en Puerto Rico se había
declarado una pandemia por el virus COVID-19 mediante la
orden ejecutiva 2021-0114.
DACO cometió error en la apreciación de la prueba y al omitir
en les determinaciones de hechos que en el inciso 7 del
contrato entre las partes surge que las partes debían cumplir
con las leyes y regulaciones de salud.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que la co- querellante,
Carmen Silva Serrano, es doctora en medicina.
DACO cometió error en la apreciación de la prueba y al
determinar que el contrato entre las partes requería que el
recurrente le enviara una comunicación por escrito a los
recurridos para extender el término del contrato como
resultado de que sus empleados se hubiesen enfermado con
el virus del COVID-19.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que la doctora en medicina
y co-querellante, Carmen Silva Serrano, admitió que tenía
conocimiento de que para el mes de febrero y marzo de 2021
si una persona sospechaba que tenía COVID-19, o estuvo
expuesta alguien tenía el virus o tenía síntomas, el gobierno
ordenó mediante orden ejecutiva 2021-0114 que esa persona
debía permanecer en cuarentena catorce (14) días.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que la doctore en medicina
y co -querellante, Carmen Silva Serrano, admitió que para el
mes de febrero y marzo de 2021 la página 5 de la orden
ejecutiva 2021-0114 establecía que el propósito de la
cuarentena es mantener a una persona que pudo haber
estado expuesta al virus alejada de otras personas y que
debía permanecer en su residencia.
DACO cometió error en la apreciación de la prueba y al omitir
en les determinaciones de hechos que la doctora en medicina
y co -querellante, Carmen Silva Serrano, admitió que
conforme a la orden ejecutiva 2021-0114 existía para el mes
de febrero y marzo de 2021 una orden de aislamiento que
establecía que una persona que haya dado positivo a COVID- KLRA202300525
19 debía estar en asilamiento físico por un mínimo de 10
días.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que el recurrente le
informó luego del 9 de febrero de 2021 a la doctora en
medicina y co-querellante, Carmen Silva Serrano, que varios
de sus empleados habían contraído el virus del COVID-19 y
que las obras de construcción se suspendían hasta que sus
empleados se recuperaban.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que el recurrente y sus
empleados se ausentaron desde luego del 9 de febrero de
2021 hasta mediados del mes de marzo 2021 a trabajar en
la obra contratada por las partes recurridos a causa de que
empelados del recurrente se contagiaron con el virus del
COVID-19 y el recurrente en cumplimiento con la orden
ejecutiva 2021-0114, el inciso 7 del contrato entras las
partes y el protocolo de COVID-19 (que surge de la cotización
que es parte del contrato entre las partes), ordenó a sus
empleados a estar en cuarentena para evitar la propagación
de dicho virus.
DACO cometió error en la apreciación de la prueba y al
realizar la determinación de hecho número 17.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que conforme al inciso
número 14 del contrato entre las partes los días perdidos o
que no se pudiera trabajar en la obra contratada por causa
de lluvia, serían considerados una extensión de tiempo para
finalizar la obra.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que tanto los recurridos
como los empleados del recurrente, tuvieron que colocar
carpas sobre la construcción en los meses de marzo, abril,
mayo y junio de 2021 para evitar que las lluvias afectaran la
obra.
DACO cometió error en la apreciación de la prueba y al omitir
en les determinaciones de hechos que la co-querellante,
Carmen Silva Serrano, aceptó que para los meses de marzo,
abril, mayo, junio del año 2021 hubo episodios de lluvia
sobre la obra de construcción y dicho testimonio fue
corroborado por el recurrente.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que el recurrente y sus
empelados trabajaron en la obra los meses de marzo, abril,
mayo, junio del año 2021 cuando no hubo episodios de
lluvia.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que el recurrente y sus
empleados se ausentaron a la construcción de la obra
durante episodios de lluvias y que conforme al inciso número
14 del contrato entre las partes el tiempo para finalizar la
obra se extendió.
DACO cometió error en la apreciación de la prueba y al
realizar la determinación número 19.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que la querella fue
presentada en DACO el 23 de julio de 2021 y la co-
querellante, Carmen Silva Serrano, en conversación
telefónica con el recurrente el 28 de julio de 2021 le dijo a
este que no fuera más por su casa a trabajar en la obra. KLRA202300525
DACO cometió error en la apreciación de la prueba y al
realizar la determinación de hecho número 20 pues el
recurrente no abandonó la obra contratada, fue la co-
querellante, Carmen Silva Serrano, en conversación
telefónica con el recurrente el 28 de julio de 2021 quien le
dijo a este que no fuera más por su casa a trabajar en la
obra.
DACO cometió error en la apreciación de la prueba y al
realizar la determinación de hecho número 26 pues el
recurrente no abandonó la obra contratada, fue la co-
querellante, Carmen Silva Serrano, en conversación
telefónica con el querellado el 28 de julio de 2021 quien le
dijo a este que no fuera más por su casa a trabajar en la
obra.
DACO cometió error en la apreciación de la prueba y al
realizar la determinación de hecho número 27 pues omitió
incluir que el recurrente pudo entrar a la residencia de los
recurridos el 5 de enero de 2022 porque previamente la co-
querellante, Carmen Silva Serrano, le autorizó al primero la
entrada a su residencia a recoger sus materiales.
DACO cometió error en la apreciación de la prueba al omitir
en las determinaciones de hechos que desde que la co-
querellante, Carmen Silva Serrano, en conversación
telefónica con el querellado el 28 de julio de 2021 le dijo a
este que no fue más por su casa, le autorizó por primera vez
al recurrente entrar a la residencia el 5 de enero de 2022 a
recoger sus materiales.
DACO cometió error al no incluir en la parte dispositiva que
se declaraba No Ha Lugar la querella presentada contra la
esposa del recurrente, Myriam Cecilia Bernier Rodríguez a
pesar de haber determinado como un hecho que entre el
recurrente y su esposa rige la total separación de bienes
mediante escritura de capitulaciones matrimoniales del 2 de
mayo de 2007.
[SEGMENT 19]
El 16 de octubre emitimos Resolución otorgamos a la parte
recurrida hasta el 9 de noviembre de 2023 para exponer su posición.
Posteriormente, el 20 de octubre de 2023, ordenamos al Recurrente
por virtud de Resolución a presentar la transcripción de la prueba
oral estipulada dentro del término de treinta (30) días e informar si
presentaría alegato suplementario.
En vista de lo anterior, el 17 de noviembre de 2023, el señor
Clemente Rosado presentóescrito intitulado Solicitud Prórroga para
Presentar la Transcripción Oral. Evaluada su petición, el 27 de
noviembre de 2023, este Tribunal emitió Resolución en la cual
concedió la prórroga.
Nuevamente, el 26 de enero de 2024, el Recurrente presentó
una Urgente Segunda Solicitud de Prórroga para Presentar la
Transcripción Oral. Tras examinar su solicitud, el 29 de enero de KLRA202300525
2024, esta Curia emitió Resolución, notificada el 30 de noviembre de
2024, concediendo un término improrrogable a vencer el 15 de
febrero de 2024. A su vez, notificamos que de no comparecer dentro
del término referido impondríamos severas sanciones.
Luego de ciertos trámites procesales que son innecesarios
pormenorizar, el 20 de febrero de 2024, esta Curia emitió Resolución
ordenando al Recurrente a cumplir con lo dictaminado el 15 de
febrero de 2024. Estipulada y acogida la transcripción ordenamos
al Recurrente a informar en un término de tres (3) días si presentará
alegato suplementario. En respuesta, el 1 de marzo de 2024, el
Recurrente presentó una Moción en Cumplimiento de Orden en la
cual notificó que presentaría el alegato aludido.
Posterior a innumerables trámites procesales, el 21 de marzo
de 2024, el Recurrente presentó su Alegato Suplementario. En éste,
reiteró sus previos señalamientos de error vinculados con la
apreciación de la prueba. En síntesis, refutó la inadmisión del Anejo
I de Cotización. De igual modo, arguyó que la parte recurrida no
presentó prueba de la alegada intención de defraudar a los
recurridos. Adujo, además, que las fases de construcción se
paralizaron por los acontecimientos climatológicos y el COVID-19.
Asimismo, aseveró que no finalizó la obra, pues la señora Silva
Serrano le instruyó no regresar a trabajar.
Por su parte, el 26 de marzo de 2024, los Recurridos
presentaron su Oposición a Apelación y la Réplica a Alegato
Supletorio. En esta última, señalaron que el DACo admitió el Anejo I
de Cotización como prueba de refutación a favor de la Recurrente.
Además, enfatizaron que en la vista del 30 de marzo de 2023 se
estableció que dicho documento no contenía las iniciales de los
querellantes. Asimismo, puntualizaron que la parte recurrente
declaró que no completó la obra, porque no tenía dinero. KLRA202300525
Con el beneficio de la comparecencia de ambas partes,
exponemos la normativa jurídica aplicable al caso de autos.
II.
A. Facultades adjudicativas del Departamento de Asuntos del
Consumidor
La Ley Orgánica del Departamento de Asuntos del
Consumidor, Ley Núm. 5 del 23 de abril de 1973, 3 LPRA sec. 341
(Ley Núm. 5), según enmendada, faculta a la agencia a “adjudicar
las querellas que se traigan ante su consideración y conceder los
remedios pertinentes conforme a derecho”. 3 LPRA sec. 341e(d).
Véase, además, [CITATION]. A esos fines, el DACo tiene el deber
de velar por el cumplimiento de todas las leyes relacionadas con los
derechos de los consumidores. 3 LPRA sec. 341e(d).
Entre otros extremos, el Artículo 6 de la Ley Núm. 5, supra,
delimita los poderes delegados al referido organismo administrativo:
(c) Atender, investigar y resolver las quejas y querellas
presentadas por los consumidores de bienes y servicios
adquiridos o recibidos del sector privado de la economía.
Cuando declare con lugar una querella, el Secretario
ordenará al querellado perdidoso que haya procedido con
temeridad que pague total o parcialmente los gastos
incurridos por el Departamento en su tramitación. El
Secretario dispondrá por reglamento los cargos por concepto
de gastos que deberá pagar el querellado perdidoso.
(d) Poner en vigor, implementar y vindicar los derechos de los
consumidores, tal como están contenidos en todas las leyes
vigentes, a través de una estructura de adjudicación
administrativa con plenos poderes para adjudicar las
querellas que se traigan ante su consideración y conceder
los remedios aptos conforme a derecho, disponiéndose que
las facultades conferidas en este inciso podrá delegarlas el
Secretario en aquel funcionario que él entienda cualificado
para ejercer dichas funciones.
[…]
(g) Establecer las reglas y normas necesarias para la
conducción de los procedimientos administrativos, tanto de
reglamentación como de adjudicación, que celebre el
Departamento. 3 LPRA sec. 341e.
En virtud de la precitada ley, el DACo adoptó el Reglamento
de Procedimientos Adjudicativos, Reglamento 8034, 13 de junio de
2011 (Reglamento 8034). Dicho cuerpo regulador procura “la KLRA202300525
solución justa, rápida y económica de las querellas presentadas
ante o por el Departamento y proveer un procedimiento
uniforme”. [CITATION]. (Énfasis nuestro).
Su aplicabilidad se extiende a “las investigaciones y los
procedimientos administrativos sobre querellas iniciadas por
consumidores, o por el Departamento”. [CITATION]. De igual modo, estas reglas aplican a los procesos
adjudicativos impuestos por nueva legislación, exceptuando los
términos para llevar a cabo el proceso adjudicativo cuando alguna
Ley establece términos distintos, los cuales el Departamento debe
adoptar. [CITATION].
En lo concerniente, la [CITATION] establece el procedimiento
para presentar una querella ante el DACo:
Toda querella se inicia y consulta del querellante o del
personal del Departamento, donde se expresan los hechos
que motivan la reclamación. El Departamento asesorará al
querellante sobre los documentos necesarios para radicar la
querella. [CITATION].
Respecto a este procedimiento, la [CITATION] preceptúa la definición
atinente a Querella:
Reclamación presentada por un consumidor o su
representante autorizado solicitando que le sea reconocido
un derecho y concedido un remedio. En adición, es una
acción iniciada por el Departamento, para hacer cumplir las
leyes y reglamentos, e imponer multas o sanciones. [CITATION].
En tales escenarios, el DACo ostenta facultad para celebrar vistas
administrativas. A esos fines, la [CITATION],
supra, dispone que “[l]as vistas administrativas serán celebradas en
la Oficina Regional a tenor con la [CITATION]”.
Asimismo, en dicho procedimiento es permisible la presentación de
material probatorio:
Las partes podrán presentar aquella evidencia documental y
testifical incluyendo evidencia de carácter técnico y pericial.
El oficial examinador, el Juez Administrativo, Secretario o
Panel de Jueces, podrán tomar conocimiento administrativo,
a iniciativa propia o a solicitud de parte, sobre aquellos
hechos o circunstancias de interés público que son
conocidas por todas las personas bien informadas; o que son KLRA202300525
susceptibles de determinación inmediata y exacta
recurriendo a fuentes cuya exactitud no puede ser
razonablemente cuestionada. Regla 20.5 de Reglamento
8034, supra.
De conformidad a la Regla 24 del Reglamento 8034, supra, la
aplicación de las Reglas de Evidencia no es estricta:
Las Reglas de Procedimiento Civil y de Evidencian no serán
de estricta aplicación a las vistas administrativas, sino en la
medida en que el Funcionario o Panel de Jueces que presida
la vista o el Departamento estime necesario para llevar a
cabo los fines de la justicia.
Celebrada la vista administrativa, el Juez Administrativo
estará en posición de emitir una resolución que exhiba los siguientes
componentes:
La resolución de la querella en sus méritos contendrá una
relación de la determinación de hechos probados, la cual se
ajustará y tendrá apoyo en el expediente del procedimiento,
conclusiones de derecho, y dispondrá lo que en Derecho
proceda para su ejecución mediante una orden e incluirá los
apercibimientos para solicitar revisión judicial.
[SEGMENT 20]
La determinación agencial deberá estar respaldada en evidencia
sustancial, es decir, “evidencia relevante que una mente razonable
podría aceptar como adecuada para sostener una conclusión”. Regla
4(i), Reglamento 8034, supra. Además, incluirá la correspondiente
concesión de remedios:
Toda resolución otorgará el remedio que en derecho proceda
aun cuando la parte querellante no lo haya solicitado.
Cuando el remedio otorgado sea una orden de hacer o
cumplir con un acto determinador deberá contener, (1)
cuando surja del expediente o (2) cuando se pueda tener
conocimiento administrativo, el importe o valor monetario de
la orden, para que en la alternativa de no cumplir con la
misma, la parte obligada compense monetariamente. Regla
27.1, Reglamento 8034, supra.
También, se “podrá imponer a la parte perdidosa el pago de
costas y honorarios de abogados”. Regla 27.3, Reglamento 8034,
supra.
B. La figura de la buena fe y las obligaciones contractuales
El Artículo 1206 del Código Civil de Puerto Rico de 1930,[CITATION]
dispone que “[e]l contrato existe desde que una o varias personas KLRA202300525
consienten en obligarse respecto de otra u otras, a dar alguna cosa,
o prestar algún servicio.” 31 LPRA ant. sec. 3371. Las obligaciones
que nacen de los contratos serán ley entre las partes, quienes
estarán obligadas a cumplir con éstos. Artículo 1044 del Código
Civil, 31 LPRA ant. sec. 2994. Dicha normativa contractual se rige
“por los principios de la autonomía de la voluntad y pacta sunt
servanda”. [CITATION]. Esta
autonomía está estrechamente entrelazada con el principio de la
buena fe contractual. [CITATION].
La buena fe es generadora de deberes y de un marco ético-
moral exigible en todas las etapas de la relación contractual. [CITATION]. En
armonía con lo anterior, el Artículo 1210 del Código Civil, supra,
alude a este principio cardinal:
Los contratos se perfeccionan por el mero consentimiento, y
desde entonces obligan, no sólo al cumplimiento de lo
expresamente pactado, sino también a todas las
consecuencias que según su naturaleza sean conformes a la
buena fe, al uso y a la ley. 31 LPRA ant. 3375
Por tanto, la obligatoriedad de los contratos no se limitada a lo
pactado propiamente en dicho acuerdo, “sino que abarca todas las
consecuencias que según su naturaleza sean conformes a la
buena fe, al uso y a la ley”. [CITATION]. (Énfasis nuestro).
A la luz de tales principios, el Artículo 1217 del Código Civil
dispone que “[s]erá nulo el consentimiento prestado por error,
violencia, intimidación o dolo”. Como consecuencia, quedan sujetos
a la indemnización de daños y perjuicios, quienes en cumplimiento
de sus obligaciones incurrieren en dolo, negligencia o morosidad, y
2020, 31 LPRA sec. 5311. No obstante, puntualizamos que los hechos que dan
lugar a la presente reclamación surgen el 23 de noviembre de 2020, previo a la
aprobación del Código Civil de 2020. En vista de lo anterior, aplicaremos las
disposiciones del derogado Código Civil de1930. KLRA202300525
los que de cualquier modo contravinieren al tenor de aquéllas. 31
LPRA ant. sec. 3018.
De igual modo, existen alternativas para atender aquellos
escenarios provocados por el incumplimiento de obligaciones de
naturaleza recíprocas. Recordemos, pues, que los contratos son
“negocios jurídicos bilaterales y, en nuestro ordenamiento,
constituyen una de las varias formas en que las personas pueden
obligarse entre sí”. [CITATION] Ante el incumplimiento de una parte, el Artículo 1077 del
Código Civil, supra, provee los siguientes mecanismos:
La facultad de resolver las obligaciones se entiende implícita
en las recíprocas, para el caso de que uno de los obligados
no cumpliere lo que le incumbe.
El perjudicado podrá escoger entre exigir el cumplimiento o
la resolución de la obligación, con el resarcimiento de daños
y abono de intereses en ambos casos. También podrá pedir
la resolución, aun después de haber optado por el
cumplimiento, cuando éste resultare imposible.
El tribunal decretará la resolución que se reclame, a no
haber causas justificadas que le autoricen para señalar
plazo. 31 LPRA ant. sec. 3052.
En lo atinente, el Tribunal Supremo de Puerto Rico estableció
la siguiente interpretación jurisprudencial:
Ante el incumplimiento de la otra parte, el perjudicado puede
exigir el cumplimiento de la obligación en la forma
específicamente debida o la resolución del mismo;4 solicitar
el cumplimiento mediante la obtención del equivalente
económico de la prestación debida y, a la vez, pedir la
indemnización de daños y perjuicios resultantes de la
repercusión del incumplimiento en su patrimonio. [CITATION]
Lo anterior implica que “si uno de los contratantes incumple, el otro
puede darlo por resuelto sin necesidad de que un tribunal así lo
declare”. [CITATION]
C. El contrato de arrendamiento de obras y servicios
El Artículo 1434 del Código Civil de Puerto Rico, 31 LPRA ant.
sec. 4013, establece que “[e]n el arrendamiento de obras o servicios, KLRA202300525
una de las partes se obliga a ejecutar una obra, o a prestar a la otra
un servicio por precio cierto”. Sobre este tipo de contrato, el Tribunal
Supremo de Puerto Rico distingue la particularidad de un contrato
de obra y un contrato de servicio:
En el contrato de obras se promete un resultado [la obra
hecha] con independencia del trabajo ... necesario para
realizarlo; y en el segundo [el de servicios] se promete la
prestación de los servicios en sí mismos —el dedicarse ... a
las labores domésticas, por ejemplo— con independencia del
resultado (de la cantidad de obra o de tarea) que con él se
haya concluido [CITATION], citando M. Albaladejo, Curso de
Derecho Civil español común y foral, Barcelona, Librería
Bosch, 1977, T. II, págs. 450–451.
En el contrato de obra, “[e]l contratista viene obligado a
ejecutar la obra conforme a lo convenido en el contrato, a las reglas
del arte de la construcción y a los usos o reglas profesionales.” [CITATION]. Por
tratarse el arrendamiento de obras de un contrato bilateral,
consensual y oneroso, el incumplimiento de una parte le da derecho
a la otra a resolver el contrato o a exigir su cumplimiento específico,
más la indemnización por los daños y perjuicios causados.
[CITATION]; Véase, además, Art. 1077 del Código Civil, supra.
D. Vida jurídica de las corporaciones
El Artículo 27 del Código Civil, supra, establece que son
personas jurídicas las corporaciones con personalidad jurídica
reconocida por la ley. 31 LPRA ant. sec. 101. Dicha personalidad
empieza desde el instante mismo, en que con arreglo a derecho,
hubiesen quedado válidamente constituidas. 31 L.P.R.A. ant. sec.
101. En armonía con lo anterior, la Ley General de Corporaciones,
la Ley Núm. 164 de 16 de diciembre de 2009, 14 LPRA sec. 3501(b),
según enmendada, dispone que “las corporaciones podrán
establecerse al amparo de esta Ley para la realización o
promoción de cualquier negocio o propósito lícito, excepto los
proscritos por la Constitución y las leyes del Estado Libre KLRA202300525
Asociado”. (Énfasis nuestro). La precitada ley “es el estatuto
especial por virtud del cual se deben atender los cuestionamientos
relativos a la existencia y vida jurídica de las corporaciones
privadas”. [CITATION]
Cónsono con lo anterior, cualquier persona natural con
capacidad legal o cualquier persona jurídica, por sí o en unión a
otras, podrá incorporar u organizar una corporación al amparo de
esta Ley, mediante la radicación de un certificado de incorporación
ante el Departamento de Estado. 14 LPRA sec. 3501(c). La emisión
del certificado de incorporación por el Secretario de Estado
constituye evidencia prima facie de: (1) otorgamiento y presentación;
(2) cumplimiento de todos los actos necesarios para que el
documento sea efectivo; y (3) cualesquiera otros hechos permitidos
o requeridos en el documento. 14 LPRA sec. 3504.
El Artículo 1.05(a) de la Ley de Corporaciones, supra,
prescribe cuándo inicia la vida jurídica de la corporación:
[SEGMENT 21]
Otorgado y radicado el certificado de incorporación, según lo
dispuesto en el inciso (D) del Artículo 1.03 de esta Ley y
pagados los derechos requeridos por ley, la persona o las
personas que de tal modo se asociaren, sus sucesores y sus
cesionarios, constituirán, a partir de la fecha de dicha
radicación, o de haberse establecido en el certificado de
incorporación, desde una fecha posterior que no exceda de
noventa (90) días, una entidad corporativa con el nombre que
aparezca en el certificado, sujeta a disolución según se
dispone en esta Ley. 14 L.P.R.A. sec. 3505(a).
En [CITATION], el Tribunal Supremo
de Puerto Rico explicó que el término certificado de incorporación
abarca “todos los certificados, acuerdos de fusión o
consolidación, planes de reorganización u otros instrumentos
que sean radicados [...] y que tengan el efecto de enmendar o
suplementar de alguna forma el certificado de incorporación
original de una corporación”. (Énfasis nuestro).
En el contexto de fusión corporativa, el Artículo 10.01 de la
Ley de Corporaciones, supra, dispone que si si el acuerdo fuere así KLRA202300525
adoptado y certificado por cada corporación constituyente, entonces
se radicará en el Departamento de Estado y entrará en vigor, con
arreglo al Artículo 1.03 de esta Ley. [CITATION]. De manera
similar, el referido estatuto permite radicar ante el Departamento de
Estado un certificado de fusión que sea otorgado con arreglo del
Artículo 1.03 de la Ley de Corporaciones. [CITATION].
Debidamente organizada en ley, la corporación ostenta la
facultad para otorgar contratos y garantías e incurrir en
responsabilidades. [CITATION]. A su vez, tiene
capacidad para “[d]emandar y ser demandada bajo su nombre
corporativo en cualquier Tribunal y participar en cualquier
procedimiento judicial, administrativo, de arbitraje o de cualquier
otro género”. [CITATION]. No obstante, “[t]odas las
personas que actúen como corporación sin autoridad para ello,
serán responsables solidariamente de todas las deudas y
obligaciones incurridas o asumidas como resultado de esta
actuación”. [CITATION]. (Énfasis nuestro).
E. Cancelación de incorporación por no rendir informe anual
El Artículo 15.01 de la Ley de Corporaciones, supra, exige el
cumplimiento de rendición de informe:
Toda corporación organizada al amparo de las leyes del
Estado Libre Asociado deberá radicar anualmente en las
oficinas del Departamento de Estado o por Internet no más
tarde del día quince (15) de abril, un informe certificado, bajo
pena de perjurio, conforme al Artículo 1.03 (A) y (B), por un
oficial autorizado, un director o el incorporador. [CITATION].
La inobservancia de este deber implica serias consecuencias sobre
la vida de la entidad corporativa. El Artículo 15.02 de la Ley de
Corporaciones, supra, contempla la imposición de multas
administrativas y penalidades por no radicar el informe:
Si una corporación doméstica dejare de radicar el informe
anual requerido por ley durante dos (2) años consecutivos,
se autoriza al Secretario de Estado a revocar el certificado de
incorporación de tal corporación. Por lo menos sesenta (60)
días antes de revocar el certificado de incorporación, el KLRA202300525
Secretario de Estado notificará a la corporación afectada de
sus intenciones de revocar, enviando una notificación por
correo de tales intenciones al agente residente de tal
corporación según conste en sus archivos.
El Secretario de Estado deberá establecer por reglamento
aquellas otras disposiciones que sean necesarias para
instrumentar el procedimiento de multas administrativas y
otras penalidades que se establece en este Artículo.
Una vez cancelado de pleno derecho el certificado de
incorporación, el Secretario de Estado notificará de
dicha cancelación al Secretario de Hacienda. 14 LPRA sec.
852. (Énfasis nuestro).
F. Estándar de revisión judicial de las determinaciones
administrativas
Como es sabido, “los tribunales apelativos han de conceder
gran deferencia a las decisiones de los organismos administrativos”.
[CITATION]. Las determinaciones
agenciales gozan de experiencia y conocimiento especializado sobre
los asuntos ante su consideración”. [CITATION]. (Citas omitidas).
Por tal razón, los foros judiciales limitan su facultad revisora
a los siguientes aspectos: (1) si el remedio concedido por la agencia
fue apropiado; (2) si las determinaciones de hecho que realizó la
agencia están sostenidas por evidencia sustancial, y (3) si las
conclusiones de derecho fueron correctas. [CITATION]. (Cita omitida).
Ahora bien, la deferencia a las determinaciones agenciales no
es absoluta. No podemos imprimir un sello de corrección a las
determinaciones o interpretaciones administrativas irrazonables,
ilegales o contrarias a derecho. [CITATION]. Por tanto, la deferencia cede cuando:
(1) la decisión no está basada en evidencia sustancial; (2) el
organismo administrativo ha errado en la aplicación o interpretación KLRA202300525
de las leyes o reglamentos;(3) ha mediado una actuación arbitraria,
irrazonable o ilegal, o (4) la actuación administrativa lesiona
derechos constitucionales fundamentales. [CITATION]; Super Asphalt
Pavement, Corp. v. AFI y otro, [CITATION].
A tenor con lo anterior, “la parte que impugna judicialmente
las determinaciones de hechos de una agencia administrativa
tiene el peso prueba para demostrar que éstas no están basadas
en el expediente o que las conclusiones a las que llegó la agencia
son irrazonables”. [CITATION].
Por otro lado, “cuando de conclusiones de derecho se trata, los
tribunales tenemos una amplia facultad de revisarlas completa y
absolutamente”. [CITATION].
A esos fines, la Sección 4.5 de la Ley de Procedimiento
Administrativo, supra, dispone que “[l]as conclusiones de derecho
serán revisables en todos sus aspectos”. Lo anterior “no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo”. [CITATION]. La
determinación de una agencia merece deferencia sustancial aun
cuando su interpretación no sea la única razonable. [CITATION]. Véase, también, [CITATION]. Solo se
sustituye “el criterio de la agencia por el del tribunal revisor cuando
no exista una base racional para explicar la decisión administrativa. KLRA202300525
[CITATION], supra; [CITATION], supra, pág. 591.
III.
Tras evaluar sosegadamente el recurso ante nuestra
consideración, así como la prueba que obra en el expediente y la
transcripción estipulada por las partes, determinamos que el DACo
actuó correctamente. La Resolución recurrida descansa en la
totalidad de la prueba admitida por la agencia y es cónsona al
derecho vigente. Por estar estrechamente relacionados los errores,
pasamos a resolverlos de manera conjunta.10 Veamos.
En el presente caso, el señor Clemente Rosado argumenta que
erró la agencia al concluir que desplegó una conducta de mala fe por
representar una corporación inexistente durante el trámite de
contratación. En específico, contiende que los recurridos debieron
presentar prueba que demostrara que éste conocía sobre el
certificado de revocación de incorporación.
No encontramos criterios jurídicos para acoger dicho
señalamiento de error. Durante la celebración de las vistas
administrativas, la parte recurrida presentó amplia prueba
documental y oral que contradice el argumento esbozado por el
Recurrente. En específico, destacamos que éste admitió que no
radicó el informe anual corporativo requerido por el Departamento
de Estado:
LCDA. RAMOS: Volvemos y repetimos la ca, la pregunta. Le
pregunto desde su creación Clember Corp. no radicó sus
informes anuales en el Departamento de Estado. ¿Sí o no?
¿No se radicó?
SR. MANUEL CLEMENTE: Yo tenía un contable que se
encargaba de eso.
LCDA. RAMOS: ¿Sí o no? ¿No se radicó?
10 Debido a que el Recurrente presentó treinta y tres señalamientos de error -con
argumentos repetitivos- hemos decidido atender los mismos mediante las
siguientes temáticas: (1) la inexistencia de la corporación, (2) la admisión del Anejo
I de Cotización (3) la extensión del término, (3) las inclemencias del tiempo, (4) la
pandemia del COVID-19, (5) el abandono de la obra y (6) la separación de bienes
de conformidad a la escritura de Capitulaciones Matrimoniales. KLRA202300525
[SEGMENT 22]
SR. MANUEL CLEMENTE: Pues no sé. No. (Énfasis
nuestro). [CITATION]
Cónsono con la declaración testimonial precitada, el DACo
admitió como Exhibit el Certificado de Revocación del Certificado de
Incorporación expedido por el Departamento de Estado:
CERTIFICO: Que “CLEMBAR CORP”, registro número
401096, ha sido cancelada según lo establece la Ley
General de Corporaciones, el 31 de diciembre de 2019 a
las 12:00 AM. (Énfasis nuestro). [CITATION]
A la luz de lo anterior, resulta evidente que el Recurrente
conocía sobre el estado de inexistencia de su corporación. Ante tal
realidad, se limitó a testificar que la aludida corporación fue
fusionada con Clember LLC:
LCDO. QUINTERO: ¿Caballero qué es Clember Corp?
SR. MANUEL CLEMENTE: Clember Corp. es una compañía
que yo presidía la cual fusionamos con Clember, LLC.
LCDO. QUINTERO: ¿Clember Corp. de cuándo estuvo activa?
SR. MANUEL CLMENTE: Estuvo activa aproximadamente
como unos tres años y medio.
LCDO. QUINTERO: ¿Recuerda cuándo comenzó Clember,
Corp? Más o menos no tiene que ser exacto.
SR. MANUEL CLEMENTE: Ah, como el veinte diecisiete,
veinte dieciocho por ahí.
LCDO. QUINTERO: Okay. Y dijo usted que ahora está
fusionada.
SR. MANUEL CLEMENTE: Está fusionada con Clember,
LLC. [CITATION]
Sin embargo, dicha argumentación solo descansó en su
testimonio, por tanto, no mereció credibilidad del Juez
Administrativo. Cónsono con lo antes expuesto, el Recurrente no
presentó prueba del certificado de incorporación o el acuerdo de
fusión corporativa. En vista de ello, no contamos con los elementos
probatorios necesarios para disponer que las partes contrajeron un
contrato con entidad corporativa fusionada. Por tanto, resolvemos
que el señor Clemente Rosado pactó una obligación contractual
en representación de una corporación inexistente. Tal
[CITATION] KLRA202300525
actuación es contraria a la buena fe contractual imperante en
nuestro ordenamiento jurídico, que procura la honestidad y la
lealtad entre las partes. En efecto, responde en el plano personal
ante la reclamación administrativa presentada en su contra.
(Énfasis nuestro).
Por otro lado, el Recurrente alega que incidió DACo al no
admitir en evidencia el Anejo I de la Cotización, toda vez que dicho
documento es parte integral del contrato. Asevera que la admisión
del Anejo I es importante porque recoge el contenido relacionado al
protocolo del COVID-19 que los querellantes incumplieron.
Por su parte, los Recurridos puntualizan que la parte
recurrente nunca señaló que el contrato estaba incompleto.
Advierten que presentó sorpresivamente el documento en cuestión
en el periodo de las vistas administrativas. No obstante, especifican
que el DACo admitió la cotización como prueba de refutación. En lo
pertinente, esbozamos el testimonio de la señora Silva Serrano,
quien declaró que no tenía conocimiento acerca del Anejo I:
SRA. CARMEN SILVA: Este documento no lo había visto.
LCDO. QUINTERO: Préstemelo acá. Este no fue la cotización
que le presentó su abogada cuando usted testificó el primer
día al que usted hizo referencia varias veces.
LCDA. RAMOS: Objetamos.
SRA. CARMEN SILVA: No.
LCDO. QUINTERO: No. ¿Usted nunca ha visto este
documento?
SRA. CARMEN SILVA: Nunca lo he visto hasta ahora.[CITATION]
Luego de un amplio debate, el Juez Administrativo limitó la
presentación del referido documento como prueba de refutación a
favor del querellado.[CITATION] Eventualmente, en la vista del 4 de mayo de
2023, resolvió que los Recurridos no estamparon sus iniciales en el
Anejo I, el cual se encuentra en blanco:
JUEZ: No. No, pero para aclarar el asunto. Mire yo, en
el expediente obra el contrato original, aunque se tiene como
Exhibit una copia. En el expediente está el contrato original,
[CITATION] KLRA202300525
aunque se tiene como Exhibit solo una copia. En el
expediente está el contrato original que suscribieron las
partes, tiene una, está timbrado en colores, Clember
Corporation en colores del veintitrés de noviembre del veinte
veinte en la ciudad de Las Piedras. Cada una de las hojas
tienen las iniciales del contrato que obra aquí, cuatro, cinco
donde en la número seis dice en la siguiente tabla
encontraremos las tareas y descripciones. Cinco, seis, siete,
tiene la firma de las partes. Y ocho la cotización está en
blanco, en ninguna de las partes inició. O sea, si se va a
hacer referencia a una cotización pues yo creo que en el
contrato tiene que aparecer un papel donde causa una de
las partes haya iniciado como aceptado o presentó.
LCDO. QUINTERO: Señoría, estaremos pidiendo la objeción
el, tenemos.
JUEZ: Y le adelantamos hasta el día, que al día de hoy,
eh, ni en las contestaciones, ni en ningún escrito esa,
esa, se incluyó esa, esa se incluyó esa, esa cotización que
está en blanco. Porque entiendo que la página doce, en la
página del contrato tiene, tiene detallado lo, las tareas que
se iban a hacer a la firma, como bien explicó el querellado
eh, tenía un costo de veintisiete mil quinientos dólares que
había que entregarle para empezar la obra porque no era un
contrato que él asumía, sino que por fase me imagino cada
vez que había una fase se certificaba, este mire terminé eh,
fundido el cimiento que era un quince por ciento, porque
establecieron los hasta los porciento. Terminé, eh, tienen que
pagarme otro para yo seguir tirando la siguiente fase. Esto
es lo que está en el contrato. Adelante compañero.[CITATION]
Expuesto lo anterior, reiteramos que el juzgador de los hechos
emitió un análisis probatorio a la luz de los documentos que obran
en el expediente. No obstante, concedió el valor probatorio que
correspondía al Anejo I presentado de conformidad a las
declaraciones testificales y los argumentos debidamente atendidos.
Así concluyó acertadamente que los Recurridos no estamparon
su iniciales en el documento en controversia y que éste se
encontraba en blanco. (Énfasis nuestro).
En torno al incumplimiento contractual, el señor Clemente
Rosado aduce que no concluyó las labores pactadas, porque la
señora Silva Serrano le solicitó que no regresara a trabajar. Indicó,
además, que sus empleados se ausentaron por los continuos
episodios de lluvias y la pandemia del COVID-19. También, alega
que la parte recurrida extendió el plazo de la obra.
[CITATION] KLRA202300525
Hemos revisado el material probatorio del expediente, sin
embargo, no encontramos elementos para sustentar tales
aseveraciones. A esos fines, resaltamos las siguientes cláusulas
establecidas en el Contrato de Servicio:
. Vigencia del Contrato: El contrato estará vigente desde la
fecha de su ejecución hasta tanto se complete el proyecto de
remodelación y construcción y el mismo sea aprobado por el
Cliente una vez culminado, salvo que una de las partes
termine el Contrato con anterioridad a ello. El término de
este contrato podrá ser extendido bajo consentimiento
escrito de ambas partes.
Cláusula de Penalidad: La cotización realizada por
CLEMBER a el [sic] cliente indica que el proyecto se realizará
dentro de 18 semanas. Si el proyecto se atrasa sin que medie
justa causa, CLEMBER deberá pagarle a el [sic] Cliente
$20.00 diarios por cada atraso.17
[…]
14. Eventualidades de Incumplimiento: Las siguientes
eventualidades se considerarán como incumplimiento bajo el
presente contrato:
El incumplimiento de CLEMBER a los términos de este
contrato, si dicho incumplimiento no ha sido subsanado
durante los quince (15) días calendarios siguiente, debe
habérsele notificado a la Sra. Carmen Silva Serrano.
El incumplimiento de el [sic] Cliente a los términos de este
contrato, si dicho incumplimiento no ha sido subsanado
durante los quince (15) días calendarios siguiente, debe
habérsele notificado a CLEMBER.
De tener días perdidos por lluvias serán considerados
para la extensión de tiempo de este contrato.
15. Terminación: De CLEMBER incurrir en
Incumplimiento de una de sus obligaciones bajo este
Contrato, y luego de transcurridos los 15 para que
subsane dicho incumplimiento, el Cliente podrá terminar
automáticamente este Contrato. (Énfasis nuestro). 18
[SEGMENT 23]
No se desprende del expediente ante nuestra
consideración, que el término de la obra se haya extendido bajo
consentimiento escrito de ambas partes, tal como prescribe la
cláusulas contractual cuatro (4). (Énfasis nuestro). Tampoco
advertimos prueba que demuestre que el trabajo se paralizó por
acontecimientos climatológicos o por la situación del COVID-19. En
particular, destacamos que la señora Silva Serrano testificó que el
Recurrente no le notificó que sus empleados enfrentaban problemas
de COVID-19:
17 Apéndice de los Recurridos, pág. 18.
18 Apéndice de los Recurridos, pág. 20. KLRA202300525
LCDO. QUINTERO: ¿Dama en el mes de febrero del dos mil
veintiuno le informó a usted que varios de sus empleados
habían contraído COVID, sí o no?
SRA. CARMEN SILVA: No.
LCDO. QUINTERO: ¿Usted reitera que fue uno?
SRA. CARMEN SILVA: Uno solo.
LCDO, QUINTERO: Okay. ¿Le pregunto mire a ver si en
febrero del dos mil veintiuno el señor Manuel Clemente le
informó a usted que las obras de construcción se suspendían
hasta que sus empleados se recuperaran del COVID-19, sí o
no? Pues dama sim e permite terminar la pregunta puedo
escuchar su contestación. ¿Mire a ver si en febrero del dos
mil veintiuno Manuel Clemente le informó a usted que las
obras de construcción se suspendían hasta que empleados
suyos se recuperaran del COVID-19, sí o no?
SRA. CARMEN SILVA: No.
LCDO. QUINTERO ¿Dama le pregunto si en marzo del dos
mil veintiuno el señor Manuel Clemente le informó a usted
que todavía los empleados de él no se habían recuperado del
COVID-19, sí o no?
SRA. CARMEN SILVA: No.[CITATION]
Según el testimonio de la parte recurrente, los empleados se
ausentaban de manera prolongada:
SRA. CARMEN SILVA: Es que fueron y vinieron. Iban y
venían, pero se ausentaban por periodos largos. Pero el
último día de todo el trabajo fue el 28 de julio de 2021.[CITATION]
De hecho, diligentemente cursó una carta al Recurrente en la cual
aludió a las previas conversaciones telefónicas relacionadas con al
estado de la obra. En lo atinente, esbozamos el siguiente contenido:
de mayo de 2021
Estimado Sr. Clemente:
Por medio de la presente le expongo amablemente mi
preocupación en relación al muro. Vez tras vez le he llamado
para preguntarle cuándo continuará con la construcción del
muro. Cómo [sic] en las llamadas del 22 de marzo de, 27 y
de abril entre otras.
En dichas llamadas le he pedido que me complete la
construcción del muro como se ha acordado. Me ha
prometido seguidamente que las próximas semanas seguirá
el trabajo hasta terminarlo. Al día de hoy no me ha cumplido
con el acuerdo establecido. Antes bien los materiales de
construcción se encuentran en total abandono entre el pasto
causándome dificultad en la poda.
No se ha preocupado por la condición de mi hogar en peligro
de derrumbe del terreno “posibilidad real”. Como es de su
conocimiento el terreno no es del todo firme y estamos frente
a la época de huracanes, mi mayor preocupación.
En vista de los hechos le comunico por escrito las
circunstancias presentes. La cual deberá ser contestada en
[CITATION] KLRA202300525
un término de cinco días a partir de recibir la misma. De lo
contrario, el contrato se dará por terminado.
Cordialmente,
Carmen Silva Serrano & Raúl Márquez Cruz [CITATION]
Asimismo, testificó que luego de presentar la Querella
administrativa, dialogó vía telefónica con el Recurrente, pero éste le
comunicó que no tenía personal para concluir la obra:
LCDA. RAMOS: ¿Ya sometida la querella, usted tuvo algún
acercamiento al señor Clemente para completar la obra?
SRA. CARMEN SILVA: Eh, sí. En esa, en esa llamada que me
hizo, que me gritó por teléfono cuando yo lo pedí que, eh, la
obra tenía que completarla. Él me dijo que ya no tenía
personas para trabajar, que no podía terminar la obra. [CITATION]
Por cierto, tal testimonio es consistente con la versión
testimonial que presentó el señor Clemente Rosado, quien reconoció
que no terminó la obra por falta de dinero:
LCDA. RAMOS: ¿Lo cierto es que usted no pudo terminar la
obra porque ya no tenía dinero para terminarla verdad?
SR. MANUEL CLEMENTE: Bueno.
LCDA. RAMOS: ¿Sí o no?
SR. MANUEL CLEMENTE: Pues sí. [CITATION]
En vista de lo anterior, nos resulta forzoso concluir que la
parte recurrente incumplió con el acuerdo contractual. A pesar de
que alude a eventualidades climatológicas y a la pandemia, no nos
posiciona a la luz de la prueba presentada para resolver que su
incumplimiento es producto es tales sucesos. No surge del
expediente que haya notificada a la parte recurrida sobre dichas
circunstancias, tal como exige el contrato. Más bien, desplegó un
patrón de indiligencia, que provocó serios problemas sobre la
seguridad de los recurridos y múltiples gastos económicos.
Por motivo del abandono de la obra, el 8 de diciembre de 2021
la parte recurrida formalizó un Contrato con el señor Juan Navarro
para completar las fases restantes de la obra inacabada. [CITATION] Este otro
[CITATION] KLRA202300525
acuerdo requirió que las partes incurrieran en un gasto adicional de
$10,000.00 en aras de resolver el problema ocasionado por el
incumplimiento contractual del querellado.
Por último, la parte recurrente alega que incidió el DACo al no
incluir en la parte dispositiva de la Resolución una declaración de
No Ha Lugar en cuento la reclamación presentada en contra de
Myriam Cecilia Bernier, quien es esposa de la parte recurrente. No
obstante, hacemos constar y destacamos que la agencia recurrida
admitió como Exhibit 1 las Capitulaciones Matrimoniales otorgadas
entre la parte recurrente y su esposa. Por lo anterior, formuló la
determinación de hechos número tres (3):
. El Sr. Manuel Clemente Rosado, es una persona mayor
de edad, contratista de trabajos de construcción, casado
con Myriam Cecilia Bernier Rodríguez bajo el régimen de
Capitulaciones Matrimoniales, la cuales fueron otorgada
el 26 de mayo de 2007, ante el notario público Adrián
Omar Díaz Díaz.[CITATION]
Reconocido ese hecho, nos limitaremos a especificar que en las
escrituras de Capitulaciones consta la siguiente disposición:
De igual manera estipulan los futuros contrayentes, que toda
y cualquier deuda y obligación que cada uno de ellos
respectivamente tenga antes del matrimonio o contraída
después matrimonio será de la exclusiva responsabilidad
del cónyuge que haya contraído la deuda sin que el otro
cónyuge tenga responsabilidad alguna en tal deuda o
deudas. (Énfasis nuestro). [CITATION]
Por tanto, admitida dicha prueba y formulada la
determinación fáctica precitada, es evidente que el Recurrente
responde en su carácter individual ante la reclamación
administrativa instada en su contra.
A tenor con lo anterior, determinamos que la parte recurrente
no alcanzó a rebatir la presunción de corrección y legalidad que
reviste las determinaciones emitidas por el DACo. La Resolución
recurrida merece nuestra deferencia, pues no es arbitraria,
irrazonable ni caprichosa. Constituye un dictamen cónsono con los
[CITATION] KLRA202300525
preceptos legales aplicables y respaldado en evidencia sustancial
que obra del expediente administrativo.
IV.
Por los fundamentos expuestos, confirmamos la Resolución
recurrida.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
LCDA. LILIA M. OQUENDO SOLÍS
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL XI
LUIS ALBERTO REVISIÓN
VALLEJOS CRUZ ADMINISTRATIVA
procedente de la
Recurrente Oficina de Gerencia
de Permisos
KLRA202400141
V. Caso Núm.: 2024-
[SEGMENT 24]
-SDR-300326
ESTHER RÍOS Sobre:
RODRÍGUEZ CONSTRUCCIÓN
Recurridos
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 26 de abril de 2024.
Comparece ante nos, Luis Alberto Vallejos Cruz (recurrente),
y nos solicita que revisemos la Notificación No Acogiendo Solicitud de
Revisión Administrativa emitida por el Departamento de Desarrollo
Económico, Oficina de Gerencia de Permisos (OGPe o recurrida) el
15 de febrero de 2024. Mediante dicho dictamen, la OGPe denegó
acoger la Solicitud de Revisión Administrativa que presentó el
recurrente ante dicho foro.
Por los fundamentos que expondremos a continuación, se
revoca la Notificación No Acogiendo Solicitud de Revisión
Administrativa que emitió la OGPe.
I.
Surge del expediente ante nuestra consideración que, el 17 de
enero de 2024, la OGPe emitió una Resolución de Consulta de
Construcción en el caso [CITATION]. Ese mismo día,
la Resolución de Consulta de Construcción fue notificada al
recurrente mediante correo postal. Inconforme, el 6 de febrero de
2024, la parte recurrente presentó una Solicitud de Revisión
Número Identificador
SEN2024_________ KLRA202400141
Administrativa. A esos efectos, el recurrente pagó el arancel
requerido para la presentación de la Solicitud de Revisión
Administrativa.
El 15 de febrero de 2024, la OGPe emitió una Notificación No
Acogiendo Solicitud de Revisión Administrativa. En esencia, la OGPe
señaló que la Solicitud de Revisión Administrativa se había
presentado fuera del término jurisdiccional de veinte (20) días.
Aseveró que la determinación objeto de revisión fue emitida el 17 de
enero de 2024, y Solicitud de Revisión Administrativa se presentó el
7 de febrero de 2024.
Insatisfecho aun, el 18 de marzo de 2024, la parte recurrente
acudió ante nos mediante un recurso de revisión judicial, y alegó la
comisión del siguiente error:
Erró la OGPE al decretar la Notificación No
Acogiendo la Solicitud de Revisión Administrativa,
privando así a la parte recurrente de tener su día en
corte y menoscabando el debido proceso de ley.
Examinado el Recurso de Revisión Judicial, este Tribunal
emitió una Resolución el 21 de marzo de 2024, concediéndole un
término de veinte (20) días a la parte recurrida para que expresara
su posición al recurso. El 22 de abril de 2024, la parte recurrida
presentó un Alegato de la Oficina de Gerencia de Permisos al Recurso
de Revisión Judicial. Contando con el beneficio de la comparecencia
de todas las partes procedemos a resolver.
II.
A. Revisión judicial de las determinaciones administrativas
La Ley de Procedimiento Administrativo Uniforme del
Gobierno de Puerto Rico, Ley Núm. 38-2017, según enmendada, (3
LPRA sec. 9601 et seq.) (LPAU), se creó a los fines de uniformar los
procedimientos administrativos ante las agencias.
Consecuentemente, desde la aprobación del procedimiento provisto
por la LPAU, los entes administrativos están precisados a conducir KLRA202400141
sus procesos de reglamentación, adjudicación y concesión de
licencias y permisos de conformidad con los preceptos de este
estatuto y el debido proceso de ley. [CITATION]
La Sección 4.1 de la LPAU, dispone que las decisiones
administrativas finales pueden ser revisadas por el Tribunal de
Apelaciones. (3 LPRA sec. 9671). La finalidad de esta disposición es
delimitar la discreción de los organismos administrativos para
asegurar que estos ejerzan sus funciones conforme a la ley y de
forma razonable. [CITATION] Es decir, la revisión judicial permite a los tribunales
garantizar que las agencias administrativas actúen dentro de los
márgenes de las facultades que le fueron delegadas por ley. [CITATION] A su vez, posibilita el poder constatar que los organismos
administrativos “cumplan con los mandatos constitucionales que
rigen el ejercicio de su función, especialmente con los requisitos del
debido proceso de ley”. Íd. Así, la revisión judicial constituye el
recurso exclusivo para revisar los méritos de una decisión
administrativa sea esta de naturaleza adjudicativa o de naturaleza
informal. [CITATION]
Es norma reiterada que las decisiones de los organismos
administrativos están revestidas de una presunción de regularidad
y corrección, [CITATION] Esto
debido a que, mediante esta norma se reconoce el peritaje del que
gozan los organismos administrativos en aquellas materias que le
han sido delegadas por ley. [CITATION]
====== End of Document ====== KLRA202400141
(2012); [CITATION]
(2012).
Nuestro máximo Foro ha establecido que, al ejercer la revisión
judicial los tribunales no pueden descartar de forma absoluta la
determinación de una agencia, sino que primero tienen que
examinar la totalidad del expediente y determinar si la
interpretación de la agencia representó un ejercicio razonable de su
discreción administrativa, así fundamentado en la pericia particular
de esta, en consideraciones de política pública o en la apreciación
de la prueba. [CITATION]
Cónsono con lo anterior, la sección 4.5 de la LPAU establece
que los tribunales deben sostener las determinaciones de hechos de
las agencias si están basadas en "evidencia sustancial que obra en
el expediente administrativo". (3 LPRA sec. 9675). Como vemos, la
norma anterior nunca ha pretendido ser absoluta. Por eso, el
Tribunal Supremo ha resuelto con igual firmeza que los tribunales
no pueden extender un sello de corrección, so pretexto de
deferencia, a las determinaciones o interpretaciones administrativas
irrazonables, ilegales, o simplemente, contrarias a derecho. [CITATION]
Sin embargo, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION] Por ende, "los tribunales
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". Torres Rivera KLRA202400141
v. Policía de PR, [CITATION]. Lo anterior responde a
la vasta experiencia y conocimiento especializado que tienen las
agencias sobre los asuntos que le son encomendados. González
Segarra et al. v. CFSE, [CITATION].
Al revisar las decisiones de las agencias, el criterio rector que
debe guiar a los tribunales es la razonabilidad de la actuación,
aunque ésta no tiene que ser la única o la más razonable. Vargas
Serrano v. Inst. Correccional, [CITATION]. Por lo tanto,
al momento de examinar un dictamen administrativo se determina
que: (1) la decisión administrativa no está basada en evidencia
sustancial; (2) la agencia erró en la aplicación de la ley (3) el
organismo administrativo actuó de manera irrazonable, arbitraria o
ilegalmente; o (4) su actuación lesiona derechos constitucionales
fundamentales, entonces la deferencia hacia los procedimientos
administrativos cede. Empresas Ferrer v. ARPe, supra, pág. 264.
En esta tarea, los foros judiciales analizarán los aspectos
siguientes: (1) si el remedio concedido por la agencia fue apropiado;
(2) si las determinaciones de hecho que realizó la agencia están
sostenidas por evidencia sustancial, y (3) si las conclusiones de
derecho fueron correctas. Asoc. Fcias v. Caribe Specially et al. II, [CITATION]. Mientras que, las determinaciones de hecho
se deben sostener si las mismas se basan en evidencia sustancial
que surja de la totalidad del expediente administrativo, Rolón
Martínez v. Supte. Policía, [CITATION], las
determinaciones de derecho pueden ser revisadas en su totalidad.
Torres Rivera v. Policía de PR, supra, pág. 627.
Si bien es cierto que la revisión judicial no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo, Rebollo v. Y Motors, [CITATION], los
tribunales revisores descartarán el criterio de los entes KLRA202400141
administrativos cuando "no se pueda hallar fundamento racional
que explique o justifique el dictamen administrativo". [CITATION]
[SEGMENT 25]
Si la interpretación y la aplicación del
derecho no es correcta, el foro apelativo está obligado a intervenir.
[CITATION]
"En esas circunstancias, [el foro apelativo] cederá la deferencia que
merecen las agencias en las aplicaciones e interpretaciones de las
leyes y los reglamentos que administra". [CITATION]
Véase, además,
[CITATION]
B. Ley Núm. 161-2009
Mediante la Ley Núm. 161-2009, conocida como la Ley para
la Reforma del Proceso de Permisos de Puerto Rico, según
enmendada (23 LPRA sec. 9011 et seq.), se crearon varios
organismos destinados a atender los diversos aspectos del proceso
de permisos, entre los cuales está la OGPe. Dicha ley creó la OGPe
como el organismo administrativo encargado de evaluar, aprobar o
denegar las solicitudes ante su consideración. Véase, Exposición de
Motivos de la Ley Núm. 161-2009, supra.
Con relación a la controversia que nos atañe, la Ley Núm. 161-
2009, supra, en su Artículo 11.1 crea la División de Revisiones
Administrativas como un organismo adscrito a la OGPe. (23 LPRA
sec. 9021m). Dicho organismo, tendrá la función de revisar las
actuaciones y determinaciones de la Junta Adjudicativa, la OGPe,
los Profesionales Autorizados y los Municipios Autónomos con
Jerarquía de la I a la V. Íd.
Cónsono con lo anterior, el Artículo 11.6 de la Ley Núm. 161-
2009 (23 LPRA sec. 9021r), establece, entre otras cosas, que:
[u]na parte adversamente afectada por una actuación o
determinación final de la Oficina de Gerencia de Permisos, de la KLRA202400141
Junta Adjudicativa, de los Municipios Autónomos con Jerarquía de
la I a la V o de un Profesional Autorizado, podrá presentar una
solicitud de revisión administrativa ante la División de Revisiones
Administrativas, dentro del término jurisdiccional de veinte (20)
días contados a partir de la fecha de archivo en autos, de copia de
la notificación de la actuación o determinación final […].
III.
En su recurso, la parte recurrente sostiene que erró la OGPe
al decretar la Notificación No Acogiendo la Solicitud de Revisión
Administrativa, privando así a la parte recurrente de tener su día en
corte y menoscabando el debido proceso de ley. Plantea, además,
que la Notificación No Acogiendo la Solicitud de Revisión
Administrativa es una contraria a derecho y menoscaba el debido
proceso de ley.
Por su parte, la parte recurrida señala que el recurrente
presentó una Solicitud de Revisión Administrativa el último día hábil
para presentar la misma, entiéndase, el 6 de febrero de 2024. En
igual fecha, realizó el pago correspondiente de los aranceles.
Expresó que, la parte recurrente diligentemente y con conocimiento
de que existía un problema con el registro del pago del Single
Business Portal, realizó una Solicitud de Ayuda en la plataforma el 7
de febrero de 2024. Así pues, la parte recurrida adujo que no tuvo
conocimiento directo de los problemas que presentó el Single
Business Portal, por lo que al haberse adjudicado el pago de
aranceles pasado el término jurisdiccional se emitió la Notificación
No Acogiendo la Solicitud de Revisión Administrativa.
De una revisión del expediente ante nos, junto a la ley y la
jurisprudencia aplicable podemos colegir que claramente incidió la
parte recurrida al decretar la Notificación No Acogiendo la Solicitud
de Revisión Administrativa por falta de jurisdicción. De conformidad
con los hechos aquí reseñados, ciertamente, la parte recurrente
presentó su Solicitud de Revisión Administrativa dentro del término
jurisdiccional de veinte (20) días. Así pues, fue una falla en la KLRA202400141
plataforma del Single Business Portal lo que no permitió que se
adjudicara correctamente el pago del arancel el 6 de febrero de 2024.
Así, aun con la diligencia desplegada por la parte recurrente al
presentar la Solicitud de Ayuda, la parte recurrida procedió a emitir
arbitrariamente la Notificación No Acogiendo la Solicitud de Revisión
Administrativa.
IV.
Por los fundamentos antes expuestos, se revoca la Notificación
No Acogiendo Solicitud de Revisión Administrativa que emitió la
OGPe. En consecuencia, se devuelve el caso a la parte recurrida para
que evalúe la Solicitud de Revisión Administrativa que presentó la
parte recurrente.
Lo acordó y manda el Tribunal y lo certifica la Secretaría del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL VII
HERNAN A. IRENE REVISION
BERLINGERI ADMINISTRATIVA
Procedente del
Recurrente Departamento del
KLRA202400193 Trabajo y Recursos
v. Humanos
DEPARTAMENTO DEL
TRABAJO Y Civil núm.: AC-22-89
RECURSOS HUMANOS
Recurrida Sobre: DESPIDO
INJUSTIFICADO
Panel integrado por su presidenta la juez Domínguez Irizarry, la juez
Grana Martínez y el juez Pérez Ocasio
Pérez Ocasio, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 23 de abril de 2024.
Comparece ante nos, Hernán Irene Berlingeri, en adelante,
Irene Berlingeri o recurrente, solicitando que revisemos la
“Resolución” emitida por la Oficina de Mediación y Adjudicación del
Departamento del Trabajo y Recursos Humanos, en adelante, OMA
o recurrida. En la resolución recurrida, notificada el 7 de marzo de
2024, el OMA dejó sin efecto la “Resolución y Orden” del 31 de enero
de 2024, mediante la cual había declarado “Ha Lugar” la querella
del recurrente en contra de su patrono, Puerto Rico Pizza, Inc., HNC
Little Caesar’s, en adelante, Little Caesar’s.
Por los fundamentos que expondremos a continuación,
desestimamos el recurso de epígrafe por falta de jurisdicción.
I.
Irene Berlingeri comenzó a trabajar para Little Caesar’s en
agosto del año 2008, hasta el 14 de julio de 2021, cuando fue
despedido. [CITATION] El 10 de febrero de 2022, el OMA reclamó
[CITATION]
Número Identificador
SEN2024___________________ KLRA202400193
extrajudicialmente la suma de $18,495.00 a Little Caesar’s, a favor
del recurrente, por concepto de despido injustificado.[CITATION]
El 10 de mayo de 2022, OMA emitió una “Notificación de
Cesión Inicial de Conciliación o Mediación” para el 17 de mayo de
2022.[CITATION] El 15 de mayo del mismo año, Little Caesar’s notificó que
comparecería por vía telefónica.[CITATION] Sin embargo, el 13 de julio de
2022, Irene Berlingeri presentó una querella contra Little Caesar’s,
ante OMA. La querellada alega que, el 25 de julio de 2022, presentó
su contestación a la misma.[CITATION] El OMA ha sostenido durante el
transcurso del caso de marras que nunca recibió esa contestación.[CITATION]
Posteriormente, el 25 de agosto de 2022, OMA notificó un
señalamiento de vista adjudicativa para el 19 de enero de 2023.[CITATION]
Llegado el mes señalado para la mencionada vista, el 11 de enero de
2023, Irene Berlingeri presentó una “Solicitud de Transferencia de
Vista”,[CITATION] quedando la misma reseñalada para el 8 de junio de 2023.[CITATION]
Esta última vista fue nuevamente reseñalada, esta vez para el 6 de
noviembre de 2023,[CITATION] luego de que Little Caesar’s solicitara su
suspensión.[CITATION]
Llegado el día de la vista pautada, Little Caesar’s no
compareció, por lo que OMA emitió una “Resolución Interlocutoria”
el 19 de diciembre de 2023.[CITATION] Mediante su dictamen, la recurrida
indicó que, por no haberse justificado la ausencia, continuó con los
procedimientos de manera ex parte, y que, a consecución de los
mismos, concedería el remedio solicitado.[CITATION] KLRA202400193
El 3 de enero de 2024, Little Caesar’s presentó una moción
ante OMA, solicitando que reconsidere su último dictamen.[CITATION] Indicó
[SEGMENT 26]
que siempre ha comparecido, y que contestó oportunamente la
querella. También, arguyó que la última notificación de
reseñalamiento no la recibió por correo. El 10 de enero de 2024, la
recurrente presentó su oposición a la solicitud de reconsideración.[CITATION]
En su contestación, Irene Berlingeri señaló que nunca recibió la
contestación a la querella de Little Caesar’s, y que el abogado de la
querellada recibió las notificaciones por correo electrónico.
Así las cosas, el 12 de enero de 2024, OMA emitió una
“Resolución Interlocutoria” informando que nunca recibió la
contestación a la querella por parte de Little Caesar’s, y que esta no
compareció a la vista administrativa celebrada en el mes de
noviembre del año 2023.[CITATION] El 29 de enero de 2024, Little Caesar’s
presentó otra moción solicitando reconsideración.
No obstante, el 31 de enero de 2024, OMA emitió una
“Resolución y Orden”, donde anotó la rebeldía y ordenó a Little
Caesar’s a compensar al recurrente por la cantidad de $18,495.00,
por concepto de despido injustificado, además de una suma de
$2,774.25.00, para sufragar los honorarios de abogado.[CITATION]
Posteriormente, el 5 de febrero de 2024, Little Caesar’s
presentó una “Moción sobre Solicitud de Regrabación de los
Procedimientos y Solicitando Acceso al Expediente” ante OMA.[CITATION] El 6
de febrero de 2024, Irene Berlingeri replicó a esta última.[CITATION] En la
misma, aduce la recurrente que Little Caesar’s insiste, de manera
frívola, en dilatar la culminación de la controversia entre ambos. KLRA202400193
En una nueva moción de reconsideración, Little Caesar’s
plantea que del expediente de OMA surge que la notificación por
correo electrónico para la vista del 6 de noviembre de 2023 rebotó,
y que no consta en la misma prueba de que haya sido notificada de
alguna otra forma.[CITATION] Ese mismo día, la recurrente presentó su
contestación a la última reconsideración solicitada por la
querellada.[CITATION] Finalmente, mediante “Resolución” del 7 de marzo de
2024, OMA reconoce que, aunque no hay evidencia del recibo de la
contestación a la querella, las notificaciones para la celebración de
la vista el 6 de noviembre de 2023, no fueron adecuadas.[CITATION] Por ello,
OMA dejó sin efecto su “Resolución y Orden” del 31 de enero de 2024
y señaló una nueva vista administrativa para el 20 de mayo de
2024.[CITATION]
Sin embargo, el 19 de marzo de 2024, Irene Berlingeri
presentó una “Solicitud de Reconsideración”, la cual no fue
contestada.[CITATION] Luego, el 12 de abril de 2024, Irene Berlingeri recurre
ante esta Curia, mediante una “Solicitud en Auxilio de Jurisdicción”,
solicitando que paralicemos los efectos de la “Resolución” emitida
por la agencia el 7 de marzo de 2023. Mediante “Resolución” del 15
de abril de 2024, declaramos “No Ha Lugar” a la solicitud en auxilio
de jurisdicción del recurrente.
En el recurso de Revisión Judicial, que también presentó el
12 de abril de 2024, el recurrente nos hace los siguientes
señalamientos de error:
PRIMER ERROR: ERRÓ LA AGENCIA AL DEJAR SIN
EFECTO LA RESOLUCIÓN EMITIDA EL 31 DE ENERO DE
POR UNA ALEGACIÓN DE FALTA DE NOTIFICACIÓN,
CUANDO EL LCDO. ERNESTO DELGADO SOTO FUE
EFECTIVAMENTE NOTIFICADO Y COMPARECIÓ
[CITATION] KLRA202400193
POSTERIORMENTE EN REPRESENTACIÓN DE LA PARTE
RECURRIDA, SOLICITANDO TRANSFERENCIA DE VISTA.
SEGUNDO ERROR: ERRÓ LA AGENCIA AL DEJAR SIN
EFECTO LA RESOLUCIÓN EMITIDA EL 31 DE ENERO DE
2024 CUANDO SURGE DEL EXPEDIENTE QUE TODAS LAS
NOTIFICACIONES DE LA AGENCIA FUERON
DEBIDAMENTE NOTIFICADAS AL REPRESENTANTE
LEGAL DEL PATRONO A LA DIRECCIÓN QUE SURGE DE
RUA.
II.
A. Jurisdicción
Como es conocido, la jurisdicción es el poder o la autoridad
que tiene un Tribunal para considerar y decidir casos o
controversias que tiene ante sí. [CITATION].
Además, es norma reiterada en nuestro ordenamiento, que “los
tribunales deben ser celosos guardianes de su jurisdicción y que no
tienen discreción para asumir jurisdicción allí donde no la tienen”.
[CITATION].
La jurisdicción se refiere a la capacidad que tiene un tribunal
para atender y resolver controversias sobre determinado aspecto
legal. [CITATION].
Ante la falta de jurisdicción, el tribunal debe así declararlo y
proceder a la desestimación del recurso, toda vez que cualquier
sentencia dictada sin jurisdicción es nula en derecho, pues la
ausencia de jurisdicción es insubsanable. [CITATION]. KLRA202400193
[CITATION].
No es necesario que una o ambas partes cuestionen la
jurisdicción de un tribunal, sino que es nuestro deber levantarlo
motu proprio. Así lo establece la Regla 83 del Reglamento del
Tribunal de Apelaciones, 4 LPRA Ap. XXII-B, R. 83, la cual confiere
facultad a este Tribunal para, a iniciativa propia o a petición de
parte, desestimar un recurso de apelación o denegar un auto
discrecional cuando este foro carece de jurisdicción. También, la
precitada regla dispone que este Tribunal, a iniciativa propia, podrá
desestimar un recurso de apelación o denegar un auto discrecional
por cualquiera de los siguientes motivos:
(1) que el Tribunal de Apelaciones carece de
jurisdicción;
(2) que el recurso fue presentado fuera del término de
cumplimiento estricto dispuesto por ley sin que exista
justa causa para ello;
(3) que no se ha presentado o proseguido con diligencia
o de buena fe;
(4) que el recurso es frívolo y surge claramente que no
se ha presentado una controversia sustancial o que ha
sido interpuesto para demorar los procedimientos, o
(5) que el recurso se ha convertido en académico.
B. Revisión de Agencias Administrativas
Sabido es, que los tribunales apelativos debemos otorgar
amplia deferencia a las decisiones emitidas por las agencias
administrativas, puesto que estas cuentan con vasta experiencia y
pericia para atender aquellos asuntos que se les han sido delegados
por la Asamblea Legislativa. [CITATION].
====== End of Court Ruling ====== ```plaintext
KLRA202400193
otro, [CITATION]. Es por ello, que, tales determinaciones
suponen una presunción de legalidad y corrección que a los
tribunales nos corresponde respetar, mientras la parte que las
impugne no presente prueba suficiente para derrotarlas. Id.;
[CITATION].
El Art. 4.006, de la Ley de la Judicatura de 2003, 4 LPRA sec.
24y, establece en su inciso (c) la competencia del Tribunal de
Apelaciones. A esos efectos, dispone que este Foro conocerá
mediante recurso de revisión judicial, las decisiones, órdenes y
resoluciones finales de organismos o agencias administrativas.
[CITATION].
Por su parte, la Sección 1.3 de la Ley de Procedimiento
Administrativo Uniforme del Gobierno de Puerto Rico, en adelante,
LPAUG, 3 LPRA sec. 9601, define “orden o resolución” como
“cualquier decisión o acción agencial de aplicación particular que
adjudique derechos u obligaciones de una o más personas
específicas, o que imponga penalidades o sanciones administrativas,
excluyendo órdenes ejecutivas emitidas por el Gobernador”.
Además, la precitada sección define “orden interlocutoria” como
“aquella acción de la agencia en un procedimiento adjudicativo que
disponga de algún asunto meramente procesal”.
La Sec. 4.2 de la LPAUG, supra, sec. 9672, también establece
que la revisión administrativa ante el Tribunal de Apelaciones se
hará respecto a las órdenes o resoluciones finales, luego de que
el recurrente haya agotado “todos los remedios provistos por la
agencia o por el organismo administrativo apelativo
correspondiente”. Es decir, no serán revisables directamente a este
``` KLRA202400193
Tribunal las órdenes o resoluciones interlocutorias de una agencia,
esto es, aquellas que se emitan durante los procesos administrativos
[SEGMENT 27]
que se desarrollan por etapas, y no sean finales. A esos efectos, esta
misma sección provee que la disposición interlocutoria de la agencia
podrá ser objeto de un señalamiento de error en el recurso de
revisión de la orden o resolución final de la agencia.
A pesar de que la LPAUG no define el término “orden o
resolución final”, esta contiene una descripción de lo que una tiene
que incluir para ser considerada final. En su Sección 3.14, supra,
sec. 9654, este cuerpo estatutario requiere que se incluyan
determinaciones de hecho y las conclusiones de derecho que
fundamentan la adjudicación, además de añadir la advertencia del
derecho a solicitar una reconsideración o revisión, según sea el caso.
[CITATION]
Por su parte, el Tribunal Supremo de Puerto Rico ha
establecido que para que una orden emitida por una agencia pueda
ser revisada ante el Tribunal de Apelaciones, deben cumplirse dos
requisitos: (i) que la parte adversamente afectada por la orden haya
agotado los remedios provistos por la agencia y (ii) que la resolución
sea final y no interlocutoria. [CITATION] Se entiende como final la orden o resolución emitida por la
última autoridad decisoria o adjudicativa de la agencia
administrativa. [CITATION]
Nuestro Alto Foro lo ha descrito como una orden o resolución que
“le ponga fin al caso ante la agencia y que tenga efectos sustanciales
sobre las partes”. [CITATION] KLRA202400193
III.
El recurrente en el caso de epígrafe nos solicita que revisemos
la “Resolución” de la recurrida del 7 de marzo de 2024, por medio de
la cual dejó sin efecto la “Resolución y Orden” del 31 de enero de
2024. En esta última, OMA había declarado con lugar la querella de
Irene Berlingeri.
Sin embargo, por entender que sí se cometieron las faltas en
las notificaciones alegadas por Little Caesar’s, la recurrida dejó sin
efecto la determinación final del 31 de enero de 2024. Mediante su
dictamen, la recurrida, ordenó una nueva vista, y en esencia,
proveyó para la continuación de los procesos. Justipreciamos que,
mediante la resolución recurrida, la controversia versada ante OMA
no se adjudicó de manera final.
Como explicáramos previamente, este Tribunal debe evaluar
si se encuentra en posición para entender sobre las determinaciones
administrativas, y si cuenta con jurisdicción para así hacerlo.
Entendemos que la resolución recurrida es, conforme lo establecido
en la LPAUG y la jurisprudencia, de carácter interlocutorio. La
controversia en el caso de epígrafe continua viva en el foro
administrativo, por lo que carecemos de jurisdicción para intervenir
en esta etapa.
IV.
Por los fundamentos que antecede, desestimamos el recurso
por falta de jurisdicción.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
LCDA. LILIA M. OQUENDO SOLÍS
Secretaria del Tribunal de Apelaciones
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL ESPECIAL
JESÚS R. DÍAZ REVISIÓN
GONZÁLEZ ADMINISTRATIVA
Recurrente procedente de la
Oficina de
v. Reglamentación de la
KLRA202400355 Industria Lechera
OFICINA PARA LA
REGLAMENTACIÓN DE Querella Núm.: 22-
LA INDUSTRIA
LECHERA DE PUERTO
RICO Sobre: DECOMISO
Recurrida DE LECHE
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 30 de agosto de 2024.
Comparece ante nos, Jesús R. Díaz González ([CITATION]) y nos solicita que revisemos la Resolución y Orden Final
emitida el 5 de junio de 2024, por la Oficina para la Reglamentación
de la Industria Lechera de Puerto Rico ([CITATION]). Dicha
Resolución y Orden Final fue notificada a las partes el 6 de junio de
2024. Mediante dicho dictamen, se declaró Ha Lugar la Contestación
a la Querella, Defensas Afirmativas y Moción de Desestimación que
presentó la parte recurrida y, en consecuencia, se desestimó la
Querella que presentó la parte recurrente.
Por los fundamentos que expondremos a continuación, se
revoca el dictamen recurrido.
I.
El 12 de abril de 2022, la [CITATION] emitió una Orden RE: Cobro
por Contaminación de Leche en Tanque Termo en contra de [CITATION].
En esta, explicó que la producción de leche cruda de su
vaquería incumplió con un parámetro de conteo bacteriano y que la
misma fue decomisada. Indicó, además, que se decomisó veintitrés
Número Identificador
SEN2024_________ KLRA202400355
mil doce (23,012) cuartillos de leche cruda de los cuales tres mil
seiscientos cuarenta y dos (3,642) pertenecen al recurrente y
diecinueve mil trescientos setenta (19,370) cuartillos pertenecen a
otros ganaderos. Consecuentemente, ordenó al recurrente el pago
de diecisiete mil treinta y seis con noventa ($17,036.90)
correspondientes a la leche decomisada con bacteria contenida en
el tanque T-39 de la Vaquería Tres Monjitas, Inc.
Oportunamente, el 10 de mayo de 2022, Díaz González
presentó una Querella ante la ORIL mediante la cual impugnó la
Orden RE: Cobro por Contaminación de Leche en Tanque Termo y
solicitó una Vista Administrativa. El 29 de julio de 2022, la parte
recurrida presentó una Contestación a la Querella, Defensas
Afirmativas y Moción de Desestimación. Acto seguido, el 12 de agosto
de 2022, el Oficial Examinador emitió una Orden mediante la cual
concedió un término de veinte (20) días al recurrente para que
mostrara causa por la cual la Querella no debía ser desestimada.
En respuesta, el 29 de agosto de 2022, el recurrente presentó
una Oposición a Moción de Desestimación. Entretanto, el 5 de junio
de 2024, la ORIL emitió una Resolución y Orden Final mediante la
cual declaró Ha Lugar la Contestación a la Querella, Defensas
Afirmativas y Moción de Desestimación que presentó la parte
recurrida y, en consecuencia, desestimó la Querella que presentó la
parte recurrente.
Insatisfecho con esa determinación, el 8 de julio de 2024, la
parte recurrente presentó una Solicitud Revisión [sic] por el Tribunal
de Apelaciones de Decisión de la Oficina para la Reglamentación de
la Industria Lechera y alegó la comisión de los siguientes errores:
A. Erró la Oficina Para la Reglamentación de la
Industria Lechera Para Puerto Rico (ORIL) al
Declarar Ha Lugar la Moción de Desestimación
presentada por ORIL y en su consecuencia
desestimar la Querella 22-009, ya que la ORIL
incumplió con el debido proceso de ley del KLRA202400355
Querellante-Recurrente cuando no aplicó
correctamente las disposiciones del Reglamento
del 27 de enero de 2017.
B. Es arbitraria y caprichosa la decisión de ORIL en la
Querella 22-009, fundamentada en la Resolución y
Orden Final del 6 de junio de 2024 donde ORIL
aplicó una disposición reglamentaria sobre
“adulterantes e inhibidores en la leche cruda” por
analogía a la situación de la Querella 22-009 que
versa sobre bacterias y límite de celular somáticas,
lo anterior cuando el Reglamento 8889 del 27 de
enero de 2017 contiene penalidades específicas para
el caso de bacterias y límite de células somáticas.
C. Erró la Oficina Para la Reglamentación de la
Industria Lechera Para Puerto Rico (ORIL) cuando
aplicó las disposiciones sobre “adulterantes e
inhibidores en la leche cruda” del Reglamento 8889
del 27 de enero de 2017 a hechos que versan sobre
“conteo de bacterias y límite de células somáticas”,
aun cuando dicho reglamento ya contiene
penalidades y procesos específicos para el caso de
bacterias y límite de células somáticas, lo anterior
creando una penalidad que no está contenida en el
Reglamento 8889.
D. Erró la Oficina Para la Reglamentación de la
Industria Lechera Para Puerto Rico (ORIL) cuando
creó una Regla Legislativa que crea una
consecuencia punitiva por analogía, basada en una
“Notificación a los Productores de Leche Licenciados
por la ORIL y Sujetos al reglamento Núm. 5 de la
ORIL” la cual fue firmada y enviada por el director de
Programa de Calidad de ORIL, quien no es
Administrador de ORIL, y ni siquiera es empleado de
dicha agencia.
Examinada la Solicitud Revisión [sic] por el Tribunal de
Apelaciones de Decisión de la Oficina para la Reglamentación de la
Industria Lechera, este Tribunal emitió una Resolución el 16 de julio
de 2024, concediéndole un término de veinte (20) días a la parte
recurrida para que expresara su posición al recurso. El 5 de agosto
de 2024, la parte recurrida presentó el Alegato de la Recurrida
Oficina de Reglamentación de la Industria Lechera de Puerto Rico.
Con el beneficio de la comparecencia de todas las partes,
procedemos a resolver. KLRA202400355
II.
A. Revisión judicial de determinaciones administrativas
La Ley de Procedimiento Administrativo Uniforme del
Gobierno de Puerto Rico, Ley Núm. 38-2017, según enmendada, (3
LPRA sec. 9601 et seq.) (LPAU), se creó a los fines de uniformar los
procedimientos administrativos ante las agencias.
Consecuentemente, desde la aprobación del procedimiento provisto
por la LPAU, los entes administrativos están precisados a conducir
sus procesos de reglamentación, adjudicación y concesión de
licencias y permisos de conformidad con los preceptos de este
estatuto y el debido proceso de ley. [CITATION]
La Sección 4.1 de la LPAU, dispone que las decisiones
administrativas finales pueden ser revisadas por el Tribunal de
Apelaciones. (3 LPRA sec. 9671). La finalidad de esta disposición es
delimitar la discreción de los organismos administrativos para
asegurar que estos ejerzan sus funciones conforme a la ley y de
forma razonable. [CITATION] Véase, además, [CITATION] Es decir, la revisión judicial
permite a los tribunales garantizar que las agencias administrativas
actúen dentro de los márgenes de las facultades que le fueron
delegadas por ley. [CITATION] A su vez, posibilita el poder
constatar que los organismos administrativos “cumplan con los
mandatos constitucionales que rigen el ejercicio de su función,
especialmente con los requisitos del debido proceso de ley”. Íd. Así,
la revisión judicial constituye el recurso exclusivo para revisar los
méritos de una decisión administrativa sea esta de naturaleza KLRA202400355
adjudicativa o de naturaleza informal. [CITATION],
supr; [CITATION], 168 DPR 527 (2006).
[SEGMENT 2]
Es norma reiterada que las decisiones de los organismos
administrativos están revestidas de una presunción de regularidad
y corrección, [CITATION]. Esto
debido a que, mediante esta norma se reconoce el peritaje del que
gozan los organismos administrativos en aquellas materias que le
han sido delegadas por ley. [CITATION], 185 DPR 800, 821
(2012).
Nuestro máximo Foro ha establecido que, al ejercer la revisión
judicial los tribunales no pueden descartar de forma absoluta la
determinación de una agencia, sino que primero tienen que
examinar la totalidad del expediente y determinar si la
interpretación de la agencia representó un ejercicio razonable de su
discreción administrativa, así fundamentado en la pericia particular
de esta, en consideraciones de política pública o en la apreciación
de la prueba. [CITATION].
Cónsono con lo anterior, la sección 4.5 de la LPAU establece
que los tribunales deben sostener las determinaciones de hechos de
las agencias si están basadas en "evidencia sustancial que obra en
el expediente administrativo". (3 LPRA sec. 9675). Como vemos, la
norma anterior nunca ha pretendido ser absoluta. Por eso, el
Tribunal Supremo ha resuelto con igual firmeza que los tribunales
no pueden extender un sello de corrección, so pretexto de
deferencia, a las determinaciones o interpretaciones administrativas
irrazonables, ilegales, o simplemente, contrarias a derecho. [CITATION]. KLRA202400355
Sin embargo, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION] Por ende, "los tribunales
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". [CITATION] Lo anterior responde a
la vasta experiencia y conocimiento especializado que tienen las
agencias sobre los asuntos que le son encomendados. [CITATION]
Al revisar las decisiones de las agencias, el criterio rector que
debe guiar a los tribunales es la razonabilidad de la actuación,
aunque ésta no tiene que ser la única o la más razonable. [CITATION] Por lo tanto,
al momento de examinar un dictamen administrativo se determina
que: (1) la decisión administrativa no está basada en evidencia
sustancial; (2) la agencia erró en la aplicación de la ley (3) el
organismo administrativo actuó de manera irrazonable, arbitraria o
ilegalmente; o (4) su actuación lesiona derechos constitucionales
fundamentales, entonces la deferencia hacia los procedimientos
administrativos cede. [CITATION]
En esta tarea, los foros judiciales analizarán los aspectos
siguientes: (1) si el remedio concedido por la agencia fue apropiado;
(2) si las determinaciones de hecho que realizó la agencia están
sostenidas por evidencia sustancial, y (3) si las conclusiones de
derecho fueron correctas. [CITATION] Mientras que, las determinaciones de hecho
se deben sostener si las mismas se basan en evidencia sustancial
====== End of Part ====== KLRA202400355
que surja de la totalidad del expediente administrativo, [CITATION], las
determinaciones de derecho pueden ser revisadas en su totalidad.
[CITATION].
Si bien es cierto que la revisión judicial no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo, [CITATION], los
tribunales revisores descartarán el criterio de los entes
administrativos cuando "no se pueda hallar fundamento racional
que explique o justifique el dictamen administrativo". [CITATION].
Si la interpretación y la aplicación del
derecho no es correcta, el foro apelativo está obligado a intervenir.
[CITATION].
"En esas circunstancias, [el foro apelativo] cederá la deferencia que
merecen las agencias en las aplicaciones e interpretaciones de las
leyes y los reglamentos que administra". [CITATION]. Véase, además, [CITATION].
B. Oficina para la Reglamentación de la Industria Lechera de
Puerto Rico
La Ley Núm. 34 del 11 de junio de 1957, según enmendada,
(5 LPRA sec. 1092 et seq.) (Ley Núm. 34-1957), conocida como la Ley
para Reglamentar la Industria Lechera se creó con el propósito de
establecer un organismo regulador de las relaciones existentes
dentro de la industria lechera, así como de establecer las bases
definitivas para el desarrollo y la estabilidad de esta. Asimismo, tiene
el fin de buscar la forma de distribuir y mercadear de forma eficiente
el producto principal y sus derivados. Exposición de Motivos de la
Ley Núm. 34-1957, supra. KLRA202400355
Consecuentemente, la Ley [CITATION], supra, creó la ORIL.
Así, al Administrador de la ORIL se le otorgó el poder de
reglamentación para solucionar de forma adecuada las situaciones
que se puedan presentar en la industria lechera. Exposición de
Motivos de la Ley [CITATION], supra. Las facultades del
Administrador de la ORIL surgen del Artículo 5 de la Ley [CITATION]
(CITATION). Respecto a los poderes generales, el
Administrador de la ORIL tendrá el poder para investigar y
reglamentar todas las fases de la industria de la leche y los
productos derivados de esta, incluyendo la producción, elaboración,
esterilización, manufactura, almacenaje, compra y venta,
transportación y distribución del producto principal y sus derivados.
Artículo 5 (a) de la Ley [CITATION], supra. Además, el
Administrador está facultado para desarrollar y mantener
condiciones satisfactorias de mercadeo tendientes a proteger la
producción y distribución de la leche y los productos derivados de
esta. Artículo 5 (b) (3) de la Ley [CITATION], supra. Asimismo, el
Administrador de la ORIL podrá establecer normas de elaboración,
esterilización, clasificación, empaque, envase, enlatado, rotulación,
calidad y presentación de la leche y de sus productos derivados.
Artículo 5 (b) (5) de la Ley [CITATION], supra.
De conformidad con las facultades concedidas por la Ley
[CITATION], supra, el Administrador de la ORIL aprobó el
Reglamento Núm. 4565 del 30 de octubre de 1991, según
enmendado, conocido como el Reglamento Núm. 5 de la Oficina de
Reglamentación de la Industria Lechera para Establecer las Normas
que Regirán la Calidad de la Leche en Todas sus Fases de
Producción, Elaboración y Venta y para Derogar el Regl. Núm. 3
Aprobado Sobre el Mismo Particular el 14 de septiembre de 1985 KLRA202400355
(Reglamento Núm. 5).1 El Reglamento Núm. 5 de la ORIL pauta las
normas que rigen la calidad y los aspectos sanitarios de la leche en
todas las fases de producción, elaboración y venta. Sección 3 del
Reglamento Núm. 5 de la ORIL.
Con relación a la controversia que nos atañe, la Sección 6 del
Reglamento Núm. 5 dispone, entre otras cosas, que:
[e]l conjunto de propiedades que determinarán la calidad de
la leche fresca que se produzca, elabore o se venda en Puerto
Rico, serán los establecidos en este Reglamento y en el
Reglamento Sanitario Núm. 138 y la Ley Núm. 77 de
Adulteración de Leche del 13 de agosto de 1957, del
Departamento de Salud.
A continuación se menciona aquel conjunto de propiedades
más significativas, que se analizarán para determinar la
calidad del producto:
A- Leche cruda:
[…]
) Límite Bacteriano – La leche cruda de cada vaquería en
particular no excederá de 100,000 colonias por mililitro al
momento de la aprobación de este reglamento. Es la política
pública de la Oficina de Reglamentación de la Industria
Lechera lograr que la leche cruda de cada vaquería en
particular no exceda setenta mil (70,000) colonias por
mililitro. Para ello, se establece una reducción paulatina a
razón de diez mil (10,000) colonias por mililitro anualmente
a partir de la aprobación de este reglamento hasta lograr la
reducción. El requisito de conteo bacteriano se establece
como sigue: al 1 de enero del 2018 sea de 90,000 colonias
por mililitro, al 1 de enero de 2019 sea de 80,000 colonias
por mililitro y al 1 de enero de 2020 sea de 70,000 por
mililitro. La leche cruda mezclada no excederá de trescientos
mil (300,000) colonias por mililitro.
[SEGMENT 3]
Cónsono con lo anterior, la Sección 6 (H) del Reglamento Núm.
5 de la ORIL establece que:
H. Leche cruda, leche pasteurizada, ultrapasteurizada,
aséptica y productos de leche no aptos para el consumo
humano:
Toda leche y productos de leche que en su examen químico,
bacteriológico o físico demuestren las condiciones señaladas
a continuación se consideraran impropios para el consumo
humano y de estimarse necesario, contra los mismos se
emitirá una orden de detención hasta tanto se confirme el
resultado. En dichos casos de confirmarse la condición, estos
serán decomisados. De no requerir confirmación se
decomisarán inmediatamente. Estos son:
1 El Reglamento Núm. 5 de la ORIL fue enmendado por el Reglamento Núm. 8889
del 29 de diciembre de 2016. El Reglamento Núm. 8889 fue efectivo el 27 de enero
de 2017 y era el Reglamento vigente a la fecha de los hechos del caso que nos
ocupa. There are no court ruling citations in the provided part of the court ruling. Therefore, no replacements are necessary. The text remains unchanged:
KLRA202400355
1) Contienen antibióticos o cualquier substancia inhibidora,
en exceso de la tolerancia establecida por este
Reglamento.
2) Contienen cualquier substancia venenosa o deletérea o
extraña a la leche o productos de leche, que lo hagan
perjudicial a la salud pública.
3) Contienen cualquier sustancia añadida no autorizada,
que altere su volumen, peso, calidad o su composición
normal.
4) Han sido producidos, transportados, almacenados,
procesados, envasados, empacados o mantenidos bajo
condiciones antihigiénicas.
5) Provienen de animales enfermos, extenuados,
alimentados o tratados con productos contraindicados
para animales lactantes.
6) Que contengan calostro, sangre, pus o excreta.
7) Inadecuadamente pasteurizados, ultrapasteurizados o
asépticamente procesados.
8) Leche o productos de leche pasteurizados,
ultrapasteurizados o asépticamente procesados que en el
análisis de una sola muestra demuestren un recuento
bacteriano y/o de coliformes total, en exceso de los límites
permitidos.
9) Leche o productos de leche pasteurizados que resulten
positivos a la prueba de fosfatasa.
10) Productos de leche elaborados con leche anormal, según
definida.
11) Leche o productos de leche expuestos a la contaminación
por el polvo, insectos, roedores, otras sabandijas, así
como de cualquier otro contaminante.
12) Leche o productos de leche de procedencia clandestina.
13) Que provengan de goteo, sobrellenado o derrame de
botellas, envases, tanques o cualquier otro equipo.
14) Leche o productos de leche devueltos por los
consumidores y comerciantes a las plantas o centros de
pasteurización o elaboración.
15) Leche y productos de leche asépticamente procesados
cuyos envases estén aventados, con fecha de expiración
vencida o que el análisis de una sola muestra demuestre
crecimiento bacteriano.
16) Leche cruda pasteurizada, ultrapasteurizados o
asépticamente procesada congelada.
17) Leche o productos de leche que muestren color, olor o
sabor anormal.
18) Leche o productos de leche procedentes de
establecimientos cubiertos por este Reglamento, a los
cuales se les haya suspendido la licencia o el recogido de
leche.
19) Leche o productos de leche aptos para el consumo
humano mezclados con leche o productos de leche
adulterados.
20) Leche o productos de leche que presenten cualquier otra
condición que se considere peligrosa a la salud pública.
21) Leche y productos de leche cuya fecha de expiración este
vencida.
22) Leche pasteurizada que se vaya a reprocesar y hayan
transcurrido más de tres (3) días de haberse elaborado.
23) Leche pasteurizada que se haya reprocesado con leche
que salió de las facilidades de la Planta Elaboradora.
24) Leche cruda, pasteurizada o ultra-pasteurizada que no
cumpla con los requisitos de refrigeración establecidos en
este reglamento.
25) Leche y productos de leche elaborados sin poseer licencia
de ORIL. KLRA202400355
26) Cualquier leche o producto de leche que por las
circunstancias evaluadas, el Administrador entienda que
no está apta para consumo humano.
A su vez, la Sección 7 del Reglamento Núm. 5 de la ORIL
establece el procedimiento para determinar el cumplimiento con las
normas de calidad bacteriológicas, químicas y de temperatura para
leche cruda y pasteurizada y productos de leche pasteurizados.
Específicamente, la Sección 7 establece, entre otras cosas, que:
A. Leche Cruda:
) A Nivel de Finca
El Administrador, a través de sus representantes
autorizados realizará muestreos de todas las vaquerías, con
licencia de su Oficina, cuantas veces lo estimare necesario.
Toda muestra se tomará y se lacrará en presencia del
ganadero o alguna persona encargada y se le dejará una
muestra sellada y lacrada al ganadero, identificada con la
firma, signo, iniciales, número u otra identificación de la
persona que tome la muestra. Disponiéndose, que, de no
encontrarse el ganadero o persona encargada en el momento
de tomar la muestra, esta se procederá a tomar obviándose
la presencia del ganadero o su encargado. Estas muestras
serán además de las muestras que puedan tomar los
funcionarios de cualquier Agencia Reglamentadora.
Si la leche a ser inspeccionada o transportada se
encuentra más fría de lo normal, el inspector y/o el
transportador de leche cruda calentará(n) la leche previo a
olerla. De igual manera, si hubiese olores a cloro,
detergentes, pintura, alimentos u otros olores lo
suficientemente fuertes, en el cuarto de heche o cerca de
este, que impidan realizar la prueba de olor, no se recogerá
o se inspeccionará la leche y se solicitará el recogido a
condición, con cargo al ganadero.
Cuando dos (2) de las últimas cuatro (4) muestras
consecutivas, tomadas en días distintos en una vaquería
para conteo bacteriano, células somáticas o temperatura, no
reunieran todos o algunos de los requisitos especificados en
la Sección 6 de este Reglamento, el Administrador procederá
a enviar un Inspector, quien le notificará por escrito con
entrega personal, la condición encontrada al ganadero o
persona encargada. Además, se procederá a tomar una
muestra adicional después de tres (3) días de la notificación
del Inspector, pero antes de que transcurran veintiún (21)
días después de la muestra.
En caso de esta muestra resultar fuera de los requisitos
señalados, se procederá a suspender el recogido de leche y
se decomisará un mínimo de cuatro (4) ordeños. Se
continuará el muestreo diario y se reanudará el recogido
cuando dos muestras consecutivas estén de acuerdo al
Reglamento. En caso que el recogido haya sido suspendido
por dos (2) días o más, bastará que una muestra cumpla con
el Reglamento para reanudarlo. En todo momento que se
tome una muestra, se le dejará otra muestra lacrada al
productor de leche. KLRA202400355
En caso de que una muestra resulte con sustancias
inhibidoras, adulterantes o que no cumpla con el requisito
de crioscopía, se procederá a notificar al ganadero, a
suspender el recogido de leche de inmediato y a decomisar
por lo menos dos (2) ordeños. Se hará un muestreo diario de
la vaquería, reinstalándose el recogido tan pronto una (1)
muestra este dentro de las normas. En los casos donde la
muestra exceda el límite de cloruro y a su vez presente
cualquier nivel de lactosa, sólidos totales, grasa, proteínas y
crioscopia fuera de la norma que presenta el historial
químico el hato del ganadero, se creará una presunción de
adulteración en la leche y será investigado como tal. Por esto,
se ordenará una suspensión de recogido por tiempo
indefinido y se iniciará un proceso de suspensión temporera
de la licencia de la ORIL. Toda la leche que se produzca
durante la suspensión del recogido y el proceso de
suspensión de la licencia, será decomisada y corresponderá
al ganadero cubrir los costos asociados a esta. Sin embargo,
un resultado de cloruro fuera de norma, pero con resultados
en los niveles de lactosa, sólidos totales, grasa, proteínas y
crioscopía cónsonos con su historial químico, conllevará el
inicio de una investigación exhaustiva en el hato. Durante
todo el tiempo que dure tal investigación, toda la leche se
recogerá a condición y le corresponderá al ganadero cubrir
los costos de transporte y decomiso de la leche, de esta no
cumplir con los parámetros de calidad.
[SEGMENT 4]
[…]
) A Nivel de Recogido
Toda planta o centro de pasteurización o elaboración que
tenga duda de la calidad de la leche recibida en cualquiera
de sus rutas de recogido enviará el tanque termo de leche al
Laboratorio de la ORIL para análisis. De estar dicha leche
fuera de los requisitos de calidad, cuya violación conlleve
decomiso según establecidos en este reglamento, esta se
decomisará. Además, se tomarán muestras periódicas de los
tanques termo en tránsito de la finca a la planta o centro de
pasteurización o elaboración y en la misma. Aquellos casos
en los que la muestra determine una violación a los
parámetros que conlleve decomiso, y por tanto haya que
decomisar el contenido del camión termo, se identificará el o
los ganaderos responsables de la condición. Se iniciará un
muestreo en la vaquería y en caso de ser necesario se le
aplicarán los procedimientos establecidos en esta sección.
En el caso que cualquier ganadero cause decomiso de
leche de un tanque termo por estar la leche cruda
contaminada con antibiótico, drogas, inhibidores u otros
adulterantes, crioscopia o por exceder el límite de acidez de
titulable vendrá obligado a pagar el costo de disposición y el
volumen de la leche dañada decomisada.
Esta sanción se impondrá cuando se haya corroborado
que la leche recogida a dicho ganadero fue la causante de la
contaminación de la restante leche en el camión. La
corroboración se realizará mediante el análisis de una
muestra oficial, tomada por esta Oficina, por cualquier
Agencia Reglamentadora o por una muestra del
transportador de leche. Siempre que se tome una muestra
para un análisis de laboratorio, se dejará una muestra de
corroboración sellada y lacrada para que el ganadero
constate el hecho relativo a la condición de su leche
producida en esta ocasión. En el caso de los transportadores
de leche, toda muestra que tome será lacrada. Si se KLRA202400355
determinará que la leche que causó la contaminación del
camión de recogido proviene de dos o más ganaderos, estos
pagarán la totalidad de la leche dañada en proporción a la
cantidad de leche aportada al volumen del camión. En caso
de que el contenido de leche en un camión de recogido salga
contaminado con antibiótico, inhibidores u otros
adulterantes, tenga niveles de crioscopia y acidez titulable
fuera de norma y ninguna de las muestras de leche de los
ganaderos resulte contaminada, será responsabilidad de la
planta asumir los costos del decomiso de leche. El
transportador de leche que haya realizado la ruta, se le
suspenderá la licencia y se iniciará un procedimiento
administrativo con la intención de revocarle la misma.
[…].
C. El Derecho Administrativo y la delegación de poderes a las
agencias administrativas
Según establece nuestro ordenamiento jurídico, el Derecho
Administrativo regula los trámites, los poderes y las
responsabilidades de las agencias administrativas, las exigencias
legales para efectuar tales acciones y los remedios que tienen
disponibles las partes afectadas por la actuación de una agencia. [CITATION]. Así pues, la medula de esta materia jurídica se basa en
el proceder de las agencias que están adscritas al Poder Ejecutivo.
[CITATION]. Así, el entendido es que
la Asamblea Legislativa prescribe una norma de carácter general y
esta es complementada por la intervención de la agencia
administrativa, que, con su expertise, detalla la legislación
aprobada. Íd.
Consecuentemente, es la Asamblea Legislativa el Poder
Constitucional llamado a darle vitalidad a este andamiaje. [CITATION]. En ese sentido, el Artículo III de
la Sección 16 de la Constitución de Puerto Rico concede a la
Asamblea Legislativa la facultad de crear, consolidad o reorganizar
departamentos ejecutivos y definir sus funciones. Art. III, Sec. 16,
ELA, LPRA, Tomo I. De esta forma, tradicionalmente, la Asamblea
Legislativa ha delegado a las agencias administrativas adscritas al KLRA202400355
Poder Ejecutivo una serie de facultades, ya sea a través de la ley
orgánica de la agencia o a través de leyes especiales. [CITATION].
Así pues, dentro de ese marco de delegación, las agencias
administrativas gozan de dos poderes esenciales: el poder de
reglamentar al ejercer funciones cuasi-legislativas y el poder de
adjudicar controversias al ejercer funciones cuasi-judiciales dentro
de la pericia de la agencia. [CITATION]. A esos efectos,
les corresponde a los organismos administrativos adherirse
estrictamente a los poderes que les han sido delegados. [CITATION]. Por lo tanto, cuando se
delega una función especifica a una agencia, esta no puede
excederse de los límites establecidos expresa o implícitamente en la
ley o por clara implicación de esta. [CITATION].
De igual forma, los tribunales no podemos expandir el ámbito
de acción que estableció el legislador. [CITATION], citando a [CITATION]. Asimismo, las actuaciones administrativas deben ajustarse
al poder delegado y en ausencia de un mandato legislativo expreso
o implícito, aquella actuación administrativa que no obedezca el
poder conferido sería una actuación ultra vires de la agencia y, por
ende, nula. [CITATION]. Véase,
además, [CITATION]. KLRA202400355
D. Procedimiento de reglamentación
En nuestro ordenamiento jurídico, las agencias
administrativas gozan del poder cuasilegislativo de aprobar reglas y
reglamentos. [CITATION] En esa encomienda, las agencias administrativas pueden
formular reglas no legislativas y reglas legislativas. Íd. Las reglas no
legislativas constituyen pronunciamientos administrativos que no
alteran los derechos ni las obligaciones de los individuos. Íd. Véase,
además, [CITATION] Por lo
cual, la LPAU dispensa del procedimiento formal de la
reglamentación en esos casos. [CITATION]
Las reglas no legislativas pueden clasificar en tres grupos: (1)
reglas procesales; (2) declaraciones interpretativas; y, (3)
declaraciones de política general. [CITATION], citando a H. Meléndez Juarbe, Derecho Administrativo, 73
REV. JUR. UPR 509, 510 (2004). En consecuencia, de trata de
cartas circulares, cartas normativas, directrices, memorandos y
demás documentos menos formales que emiten las agencias para
darle uniformidad a sus procedimientos internos, pautar su
discreción o interpretar las leyes que administran. [CITATION]
Por otra parte, una regla legislativa crea derechos, impone
obligaciones y establece un patrón de conducta que tiene fuerza de
ley. [CITATION] Así pues, la Asamblea Legislativa ha
sido consecuente y clara al disponer de un procedimiento específico
para la aprobación, revocación y enmienda de las reglas legislativas.
[CITATION] Esto, pues “la
importancia que reviste este tipo de regla o reglamento, y el efecto
que puede acarrear para el público en general […] requiere el KLRA202400355
cumplimiento del procedimiento de reglamentación según se
establece en la LPAU”. Íd., citando a [CITATION].
Por consiguiente, la LPAU exige que las agencias
administrativas cumplan con determinados requisitos al “aprobar,
enmendar o derogar una regla o reglamento”. Sección 2.1 de la LPAU
(3 LPRA sec. 9611). A esos efectos, todo procedimiento de
reglamentación debe cumplir con cuatro requisitos básicos: (1)
notificar al público la reglamentación que se aprobará; (2) proveer
oportunidad para la participación ciudadana, que incluya vistas
públicas cuando sea necesario u obligatorio; (3) presentar la
reglamentación ante el Departamento de Estado para la aprobación
correspondiente, y (4) publicar la reglamentación aprobada. Sección
2.1, 2.2, 2.3, 2.8 y 2.11 de la LPAU (3 LPRA secs. 9611-9613, 9618
y 9621).
En reiteradas ocasiones nuestro máximo Foro ha dispuesto
que, todos estos constituyen requisitos imprescindibles y de
ineludible cumplimiento. [CITATION]. El cumplimiento de ese proceso es indispensable para poder
reconocerle fuerza de ley a la regla promulgada, ya que ello forma
parte de las garantías procesales que permean todo el estatuto. Íd.,
citando a [CITATION]. Por lo tanto, será nulo todo reglamento que se adopte en
violación a las disposiciones de la LPAU. [CITATION].
Asimismo, la mera clasificación de un reglamento como
[SEGMENT 5]
legislativo o interno no es determinante. [CITATION]. Para
determinar si una regla o un reglamento es legislativo o interno se
utiliza el examen del impacto sustancial. [CITATION] KLRA202400355
[CITATION], supra. Si la reglamentación modifica derechos
sustantivos o crea obligaciones estamos ante un reglamento
legislativo. Íd.
III.
Por estar los señalamientos de error íntimamente
relacionados, discutiremos los cuatro (4) señalamientos de error de
forma conjunta. Veamos.
En su recurso, Díaz González planteó que erró la ORIL al
declarar Ha Lugar la Moción de Desestimación presentada por la
ORIL y, en consecuencia, desestimar la Querella, ya que la ORIL
incumplió con el debido proceso de ley cuando no aplicó
correctamente las disposiciones del Reglamento Núm. 8889 del 27
de enero de 2017. Sostuvo que es arbitraria y caprichosa la decisión
de ORIL en la Querella, fundamentada en la Resolución y Orden Final
del 6 de junio de 2024, donde ORIL aplicó una disposición
reglamentación sobre “adulterantes e inhibidores en la leche cruda”
por analogía a la situación de la Querella que versa sobre bacterias
y límite celular somáticas, lo anterior cuando el Reglamento Núm.
8889 del 27 de enero de 2017 contiene penalidades específicas para
el caso de bacterias y límite de células somáticas.
Asimismo, señaló que erró la ORIL cuando aplicó las
disposiciones sobre “adulterantes e inhibidores en la leche cruda”
del Reglamento Núm. 8889 del 27 de enero de 2017 a hechos que
versan sobre “conteo de bacterias y límite de células somáticas”, aun
cuando dicho reglamento ya contiene penalidades y procesos
específicos para el caso de bacterias y límite de células somáticas,
lo anterior creando una penalidad que no está contenida en el
Reglamento Núm. 8889. Indicó, además, que erró la ORIL cuando
creó una regla legislativa que crea una consecuencia punitiva por
analogía, basada en una “Notificación a los Productores de Leche
Licenciados por la ORIL y Sujetos al reglamento Núm. 5 de la ORIL” KLRA202400355
la cual fue firmada y enviada por el director del Programa de Calidad
de ORIL, quien no es administrador de ORIL, y ni siquiera es
empleado de dicha agencia.
De una lectura detallada de la Resolución y Orden Final
emitida por la ORIL, podemos colegir que la ORIL aplicó a la
controversia ante su consideración la “Notificación a los Productores
de Leche Licenciados por la ORIL y Sujetos al reglamento Núm. 5 de
la ORIL” (Notificación). Dicha Notificación, fue firmada y enviada por
el director del Programa de Calidad de ORIL, quien no es el
Administrador de ORIL. Al evaluar puntillosamente la Notificación
en cuestión, podemos concluir, según el derecho que antecede, que
esta es una regla legislativa. Esto, pues crea derechos, impone
obligaciones y establece un patrón de conducta que tiene fuerza de
ley. [CITATION]
Es decir, la Notificación, que no fue emitida propiamente por
el Administrador de ORIL, les notificó a los Productores de Leche
que el incumplimiento con los parámetros de células somáticas y
bacterias en la leche recogida en las vaquerías y cuya mezcla con la
leche producida por otras vaquerías de dicha ruta de recogido,
causen el incumplimiento de los parámetros de calidad del termo o
compartimiento por uno o ambos parámetros (mayor a 750,000
escc/ml en células somáticas y/o mayor a 300,000 col/mi en el
conteo bacteriano), se procedería al análisis de las muestras
individuales para determinar quien fue el productor que causo la
violación. Además, la Notificación dispone que aquel o aquellos
ganaderos cuya muestra estuvo fuera del parámetro, tendrán que
pagar el valor total de dicha leche decomisada. A todas luces, esta
Notificación es una regla legislativa que debió seguir el
procedimiento de reglamentación según se establece en la LPAU, KLRA202400355
pues tiene fuerza de ley que afecta los derechos de los Productores
de Leche.
Al revisar el Reglamento Núm. 5, hemos constatado que la
disposición incluida en la Notificación no está contenida en dicho
reglamento. Por lo tanto, podemos inferir que se intentó enmendar
el Reglamento Núm. 5 a través de la Notificación y sin seguir el
procedimiento establecido en la LPAU. Esto, aun cuando la misma
Notificación reconoce la existencia del Reglamento Núm. 5 que
regula los hechos que pretende modificar la Notificación y que el
Reglamento Núm. 5 no provee la sanción que se pretende imponer
mediante la Notificación. Por lo tanto, la actuación de la ORIL de
poner en vigor una Notificación emitida por un funcionario que no
es el Administrador de ORIL y sin seguir el procedimiento
establecido en nuestro ordenamiento jurídico, es una ultra vires y,
en consecuencia, nula.
De otro lado, de la Resolución y Orden Final surge que la ORIL
aplicó por analogía las reglas sobre leche contaminada con
adulterantes, antibióticos, drogas e inhibidores aun cuando la leche
cruda perteneciente al recurrido presuntamente incumplía con un
parámetro de bacterias. De una lectura de la Orden RE: Cobro por
Contaminación de Leche en Tanque Termo emitida por la ORIL en
contra de Díaz González, no surge cual fue el conteo bacteriano que
arrojó la producción de leche que estaba fuera de las normas
establecidas; por lo cual, la notificación de la violación no fue
adecuada.
Asimismo, aun en el supuesto que el conteo bacteriano fuese
mayor a 100,000 colonias por mililitro, la ORIL debió aplicar la
Sección 7 del Reglamento Núm. 5 que establece el procedimiento
para determinar el cumplimiento con las normas de calidad
bacteriológicas, químicas y de temperatura para la leche cruda.
Específicamente, debió aplicar la Sección 7 (A) (1) a nivel de finca. KLRA202400355
Dicha sección atiende el incumplimiento con un parámetro
bacteriano, en lugar de aplicar la Sección 7 (A) (2) a nivel de recogido
que únicamente trata el decomiso de leche cruda con antibiótico,
drogas, inhibidores u otros adulterantes, crioscopia o por exceder el
límite de acidez; que no es el caso ante nos.
En conclusión, incidió la ORIL al emitir una Resolución y
Orden Final mediante la cual aplicó una Notificación que tiene el
efecto de una regla legislativa. Como tal, su aprobación tenía que
seguir el procedimiento reglamentario que ordena la LPAU, lo que
no ocurrió. Al director del Programa de Calidad de ORIL promulgar
la Notificación, cuyo efecto es uno legislativo, y antes de su
aplicación, la ORIL debió cumplir con los cuatro (4) requisitos
básicos dispuestos en la LPAU para aprobar, enmendar o derogar
un reglamento.
Además, incidió la ORIL al aplicar por analogía una
disposición reglamentaria aun cuando había una disposición
reglamentaria que atendía la situación. Así pues, la actuación de la
ORIL fue arbitraria y caprichosa. Si bien es cierto que los tribunales
apelativos debemos otorgar amplia deferencia a las decisiones
emitidas por las agencias administrativas, debido a que estas
cuentan con un criterio especializado, ello no significa que no
intervendremos cuando se presente un claro abuso de discreción.
Por lo tanto, procede que se revoque y se deje sin efecto la
Resolución y Orden Final emitida por la ORIL el 5 de junio de 2024.
III.
Por los fundamentos antes expuestos, revocamos el dictamen
recurrido. Having reviewed the provided part of the court ruling, it does not contain any court ruling citations. Therefore, no replacements with `[CITATION]` or `[CITATION]` are necessary.
Here is the text with no changes:
KLRA202400355
Lo acordó y manda el Tribunal y lo certifica la Secretaría del
Tribunal de Apelaciones.
La Jueza Álvarez Esnard concurre sin voto escrito.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL IX
REVISIÓN
R&B POWER, INC. ADMINISTRATIVA
Procedente de la
Recurrente Junta de Subastas
de la Administración
v. de servicios
KLRA202400262 Generales de Puerto
JUNTA DE SUBASTAS Rico
DE LA
ADMINSITRACIÓN DE Caso núm.: JR-22-
SERVICIOS
[SEGMENT 6]
GENERALES DE
PUERTO RICO Sobre: SOLICITUD
DE REVISIÓN DE
Recurrida RECHAZO GLOBAL
DE SUSBASTA
Panel integrado por su presidente, el Juez Rivera Colón, el Juez
Ronda Del Toro y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 18 de julio de 2024.
Comparece ante nos R&B Power, LLC (R&B o parte recurrente)
mediante un Recurso de Revisión de Subasta. Nos solicita la
revocación de la Resolución de Rechazo Global emitida y notificada
el 31 de agosto de 2022 por la Junta de Subastas de la
Administración de Servicios Generales (Junta de Subastas o parte
recurrida). Mediante el referido dictamen, la agencia resolvió que
R&B incumplió con la Especificación Núm. UEA-23-018.7, que
establece la fuerza de caballos correspondiente a las excavadoras
compactas objeto de la subasta.
Por los fundamentos que expondremos a continuación, se
confirma el dictamen recurrido.
I.
El 19 de julio de 2022, la Junta de Subastas publicó una
invitación a la Subasta Formal 23-J-00121 (Subasta 23J) sobre la
adquisición de unas excavadoras compactas para el Departamento
de Trasportación y Obras Públicas (DTOP). El 1 de agosto de 2022,
Número identificador
SEN2024_________________ KLRA202400262
las partes celebraron una reunión pre-subasta con el propósito de
atender las dudas relacionadas con el Pliego de Subasta Formal
Núm. 23J-00121. El aludido documento contenía las
especificaciones, los requisitos y los términos vinculados con la
propuesta de los licitadores.
La fecha límite para remitir las preguntas correspondía al 2
de agosto de 2022. No obstante, el 8 de agosto de 2022, la Junta de
Subastas notificó la Enmienda Número 1 recogida en la
Especificación Núm. UEA-23-01. En esta, aumentó la medida de
treinta y nueve caballos de fuerza (39hp) a cuarenta y ocho caballos
de fuerza (48hp). Ante tal modificación, R&B cursó una carta a la
Junta de Subastas, en la cual indicó que dicha enmienda favorecía
a Multi-Ventas y Servicios PR, Inc. (MVSPR), lo cual constituye una
acción conocida como bid tailoring. Además, solicitó una nueva
reunión pre-subasta, sin embargo, el organismo recurrido rechazó
tal proposición.
Así las cosas, la agencia recurrida celebró el acto de apertura
de subasta. En dicho proceso participaron R&B y González Trading
mediante la presentación de sus ofertas. Evaluadas sus propuestas,
el 31 de agosto de 2022, la Junta de Subastas emitió y notificó una
Resolución de Rechazo Global. En virtud de tal determinación,
resolvió que las entidades participantes incumplieron con la
Especificación Núm. UEA-23-018.7, que contiene la indicación
requerida de la fuerza de caballos que debían exhibir las
excavadoras compactas objeto del litigio.
Oportunamente, el 20 de septiembre de 2022, R&B presentó
un recurso de revisión ante la Junta Revisora de Subastas. No
obstante, el 8 de noviembre de 2022, la Junta Revisora desestimó el
recurso por no cancelar los aranceles a tenor con la Carta Circular KLRA202400262
Núm. 2021-06. En efecto, resolvió que carecía de jurisdicción, toda
vez que el recurso no se perfeccionó.
Inconforme con la determinación agencial, el 9 de noviembre
de 2022, R&B acudió ante este Tribunal de Apelaciones mediante
un recurso de revisión judicial. Evaluada la totalidad del expediente,
el 8 de febrero de 2023, esta Curia emitió una Sentencia en la cual
desestimó el recurso bajo el entendido de que R&B no canceló
aranceles y no agotó los remedios administrativos.1
No obstante, el 13 de marzo de 2024, el Tribunal Supremo de
Puerto Rico dictaminó una Opinión y Sentencia en la cual revocó la
determinación del Tribunal Apelaciones, y a su vez, decretó la
nulidad de la tarifa prescrita en la Carta Circular Núm. 2021-06.
Véase, [CITATION]. Al respecto, nuestro máximo Foro dispuso el siguiente
razonamiento legal:
[a]l arribar a esta conclusión, razonamos, como corolario,
que la solicitud de revisión que R&B Power instó ante la
Junta Revisora se perfeccionó conforme a derecho, pues,
para ello, no tenía que satisfacer arancel alguno. En ese
sentido, la Junta Revisora no tiene impedimento para asumir
jurisdicción y considerar en sus méritos la referida solicitud.
Consecuentemente, devolvió el caso a la Junta Revisora para que
atendiera en sus méritos la solicitud de revisión instada por R&B. A
esos efectos, el 8 de abril de 2024, este Tribunal de Apelaciones
notificó el correspondiente Mandato a la Junta Revisora. No
obstante, R&B alega que transcurrido treinta (30) días posteriores a
la emisión del Mandato, la Junta Revisora no se ha expresado en
torno a la solicitud de revisión. Ante tal circunstancia, considera que
dicho cuerpo revisor rechazó de plano su petición.
Inconforme con el proceder administrativo, el 24 de mayo de
2024, acudió ante nos mediante un escrito intitulado Recurso de
1 Véase Resolución emitida bajo la designación alfanumérica KLRA2022-00608. KLRA202400262
Revisión de Subasta. En su escrito, señala la comisión de los
siguientes errores:
PRIMERO: ERRÓ LA JUNTA DE SUBASTAS AL
ENMENDAR LAS ESPECIFICACIONES DEL EQUIPO
LUEGO DE LA REUNIÓN PRE-SUBASTA
COMPULSORIA Y TRANSCURRIDO EL TÉRMINO
LÍMITE PARA QUE LOS LICITADORES SOMETIERAN
PREGUNTAS, ADAPTÁNDOLAS PARA FAVORECER A
OTRO LICITADOR, EN PERJUICIO DE R&B.
SEGUNDO: ERRÓ LA JUNTA DE SUBASTAS AL NO
ADJUDICARLE A R&B LA BUENA PRO DE LA
SUBASTA 23J, SEGÚN RECOMENDÓ EL DTOP,
CUANDO LA DIFERENCIA EN LA ESPECIFICACIÓN
DEL EQUIPO ESTRIBA EN SOLO PUNTO CUATRO (.4)
CABALLOS DE FUERZA LO QUE CONSTITUYE UNA
“DESVIACIÓN PERMISIBLE” BAJO LA SECCIÓN 7.3.17
(11) DEL REGLAMENTO DE SUBASTAS QUE NO
AFECTA EL PROPÓSITO Y OPERACIÓN DEL EQUIPO.
El 4 de junio de 2024, esta Curia emitió Resolución en la cual
concedió a la parte recurrida veinte (20) días para presentar su
posición. Posteriormente, el 25 de junio de 2024, la parte recurrida
presentó una Solicitud de Término Adicional. El 28 de junio de 2024,
la parte recurrida presentó el correspondiente Alegato en Oposición.
Contando con el beneficio de la comparecencia de todas las partes,
procedemos a resolver.
II.
A. Revisión judicial de las determinaciones administrativas
La Ley de Procedimiento Administrativo Uniforme del
Gobierno de Puerto Rico, Ley Núm. 38-2017, según enmendada, (3
LPRA sec. 9601 et seq.) (LPAU), se creó a los fines de uniformar los
procedimientos administrativos ante las agencias.
Consecuentemente, desde la aprobación del procedimiento provisto
por la LPAU, los entes administrativos están precisados a conducir
sus procesos de reglamentación, adjudicación y concesión de
licencias y permisos de conformidad con los preceptos de este
estatuto y el debido proceso de ley. [CITATION]. KLRA202400262
La Sección 4.1 de la LPAU, dispone que las decisiones
administrativas finales pueden ser revisadas por el Tribunal de
Apelaciones. (3 LPRA sec. 9671). La finalidad de esta disposición es
delimitar la discreción de los organismos administrativos para
asegurar que estos ejerzan sus funciones conforme a la ley y de
forma razonable. [CITATION]. Véase, además, [CITATION].
Es decir, la revisión judicial
permite a los tribunales garantizar que las agencias administrativas
actúen dentro de los márgenes de las facultades que le fueron
delegadas por ley. [CITATION]. A su vez, posibilita el poder
[SEGMENT 7]
constatar que los organismos administrativos “cumplan con los
mandatos constitucionales que rigen el ejercicio de su función,
especialmente con los requisitos del debido proceso de ley”. Íd. Así,
la revisión judicial constituye el recurso exclusivo para revisar los
méritos de una decisión administrativa sea esta de naturaleza
adjudicativa o de naturaleza informal. Capote Rivera y otros v. Voilí
Voilá Corp. y otros, supra; [CITATION].
Es norma reiterada que las decisiones de los organismos
administrativos están revestidas de una presunción de regularidad
y corrección, [CITATION]. Esto
debido a que, mediante esta norma se reconoce el peritaje del que
gozan los organismos administrativos en aquellas materias que le
han sido delegadas por ley. [CITATION]. KLRA202400262
Nuestro máximo Foro ha establecido que, al ejercer la revisión
judicial los tribunales no pueden descartar de forma absoluta la
determinación de una agencia, sino que primero tienen que
examinar la totalidad del expediente y determinar si la
interpretación de la agencia representó un ejercicio razonable de su
discreción administrativa, así fundamentado en la pericia particular
de esta, en consideraciones de política pública o en la apreciación
de la prueba. [CITATION].
Cónsono con lo anterior, la sección 4.5 de la LPAU establece
que los tribunales deben sostener las determinaciones de hechos de
las agencias si están basadas en "evidencia sustancial que obra en
el expediente administrativo". (3 LPRA sec. 9675). Como vemos, la
norma anterior nunca ha pretendido ser absoluta. Por eso, el
Tribunal Supremo ha resuelto con igual firmeza que los tribunales
no pueden extender un sello de corrección, so pretexto de
deferencia, a las determinaciones o interpretaciones administrativas
irrazonables, ilegales, o simplemente, contrarias a derecho. [CITATION].
Sin embargo, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION]. Por ende, "los tribunales
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". [CITATION]. Lo anterior responde a
la vasta experiencia y conocimiento especializado que tienen las KLRA202400262
agencias sobre los asuntos que le son encomendados. [CITATION]
Al revisar las decisiones de las agencias, el criterio rector que
debe guiar a los tribunales es la razonabilidad de la actuación,
aunque ésta no tiene que ser la única o la más razonable. [CITATION] Por lo tanto,
al momento de examinar un dictamen administrativo se determina
que: (1) la decisión administrativa no está basada en evidencia
sustancial; (2) la agencia erró en la aplicación de la ley (3) el
organismo administrativo actuó de manera irrazonable, arbitraria o
ilegalmente; o (4) su actuación lesiona derechos constitucionales
fundamentales, entonces la deferencia hacia los procedimientos
administrativos cede. [CITATION]
En esta tarea, los foros judiciales analizarán los aspectos
siguientes: (1) si el remedio concedido por la agencia fue apropiado;
(2) si las determinaciones de hecho que realizó la agencia están
sostenidas por evidencia sustancial, y (3) si las conclusiones de
derecho fueron correctas. [CITATION] Mientras que, las determinaciones de hecho
se deben sostener si las mismas se basan en evidencia sustancial
que surja de la totalidad del expediente administrativo, [CITATION], las
determinaciones de derecho pueden ser revisadas en su totalidad.
[CITATION]
Si bien es cierto que la revisión judicial no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo, [CITATION], los
tribunales revisores descartarán el criterio de los entes
administrativos cuando "no se pueda hallar fundamento racional
que explique o justifique el dictamen administrativo". [CITATION] KLRA202400262
v. Supte. Policía, supra. Si la interpretación y la aplicación del
derecho no es correcta, el foro apelativo está obligado a intervenir.
JP, Plaza Santa Isabel v. Cordero Badillo, [CITATION].
"En esas circunstancias, [el foro apelativo] cederá la deferencia que
merecen las agencias en las aplicaciones e interpretaciones de las
leyes y los reglamentos que administra". Super Asphalt Pavement,
Corp. v. AFI y otros, [CITATION]. Véase, además,
Capote Rivera y otros v. Voilí Voilá Corp. y otros, [CITATION]; Rolón
Martínez v. Supte. Policía, supra.
B. El procedimiento de subasta
En su obligación de proveer servicios a la ciudadanía, el
Estado utiliza diversos medios de licitación pública o subastas, por
el cual invitan a uno o varios proponentes a presentar ofertas para
la realización de obras o para la adquisición de bienes y servicios.
Transporte Rodríguez Asfalto, Inc. v. Junta de Subastas, Mun.
Aguadilla [CITATION]. Al respecto, nuestro máximo
Foro ha reiterado que:
[e]l propósito primordial del proceso de subasta es proteger
los fondos públicos, fomentando la libre y diáfana
competencia entre el mayor número de licitadores posibles.
Así, se pretenden evitar influencias ajenas al beneficio para
el interés público. Por medio de las subastas
gubernamentales el Gobierno maximiza la posibilidad de
obtener el mejor contrato, mientras se protegen los intereses
y activos del pueblo contra el dispendio, el favoritismo, la
corrupción y el descuido al otorgarse los contratos. De esta
forma, el Gobierno puede llevar a cabo sus funciones como
comprador de una forma eficiente, honesta y correcta para
proteger los intereses y el dinero del pueblo.
Así, cualquier controversia que se derive de los
procedimientos de subasta deben decidirse a la luz del interés
público. Municipio de Aguada v. W Contruction, LLC y otros, [CITATION]. Cónsono con lo anterior, el 23 de julio
de 2019, la Asamblea Legislativa aprobó la Ley Núm. 73-2019 (3
LPRA sec. 9831 et seq.), conocida como la Ley de la Administración
de Servicios Generales para la Centralización de las Compras del KLRA202400262
Gobierno de Puerto Rico de 2019. En su Exposición de Motivos, se
establece como política pública del Gobierno de Puerto Rico, la
centralización de los procesos de compras gubernamentales de
bienes, obras y servicios, en aras de lograr mayores ahorros fiscales
y la transparencia en la gestión gubernamental. Consecuentemente,
se le delega a la Administración de Servicios Generales (ASG) la
responsabilidad de implantar dicha política pública y de coordinar
y dirigir el proceso de adquisición de bienes y servicios y la
contratación de servicios del Gobierno de Puerto Rico. [CITATION]
Como parte de sus disposiciones, la Ley Núm. 73-2019 creó
la Junta de Subastas, adscrita a la ASG. Artículo 47 de la Ley Núm.
73-2019 (3 LPRA sec. 9836). La Junta de Subastas tiene naturaleza
cuasijudicial y está facultada para evaluar y adjudicar, mediante un
procedimiento uniforme, las subastas del Gobierno de Puerto Rico
que se realicen en cumplimiento con las disposiciones de la ley. Así
pues, la ASG está facultada para constituir un Comité Evaluador de
Subastas, cuya función principal será evaluar el cumplimiento, por
parte de los licitadores, de los requisitos de licitación establecidos
para cada subasta en particular. Íd.
Indiscutiblemente, aunque el gobierno debe procurar que las
obras públicas se realicen al precio más bajo posible, existen otros
criterios, además del precio, que tienen que ser evaluados por la
Junta de Subastas al momento de adjudicarla. [CITATION]. Algunos de estos factores incluyen que las
propuestas sean conforme a las especificaciones de la agencia, la
habilidad del postor para realizar y cumplir con el contrato, la
responsabilidad económica del licitador y su reputación e integridad
comercial entre otros factores. [CITATION]. KLRA202400262
Además, según ha resuelto nuestro máximo Foro las
consideraciones de orden público como los servicios o productos
técnicos, la probabilidad de realizar la obra de manera más eficiente
y dentro del tiempo acordado, y los materiales que ofrezca un postor
de la propuesta que no es la más económica, pueden llevar a la
agencia a seleccionarlo, si ello corresponde a sus mejores intereses.
[CITATION].
De otro lado, el Tribunal Supremo ha resuelto que en el
contexto de las subastas gubernamentales la norma general es que
la Junta de Subastas de la agencia goza de amplia discreción en la
evaluación de las propuestas sometidas ante su consideración.
[SEGMENT 8]
[CITATION]. Como regla general, la agencia u organismo público
es quien posee una vasta experiencia y especialización que la
colocan en mejor posición que el foro judicial para seleccionar el
postor que más convenga al interés público. [CITATION].
Así, una vez se adjudique la buena pro, los tribunales no
deben sustituir el criterio de la agencia o junta concernida, a menos
que se demuestre que la decisión se tomó de forma arbitraria o
caprichosa o que medió fraude o mala fe. [CITATION]. En ausencia de estos elementos ningún postor tiene derecho
a quejarse cuando otra proposición es elegida como la más
ventajosa. Íd. La cuestión debe decidirse a la luz del interés público.
Íd. En estos casos, la determinación de la agencia será sostenida si
cumple con el criterio de razonabilidad. Íd.
i. Notificación
El Artículo 53 de la Ley Núm. 73-2019 (3 LPRA sec. 9836f)
establece que, KLRA202400262
[u]na vez adjudicado un asunto ante la consideración de la
Junta de Subastas, esta procederá́ a notificar su
determinación final, según los procedimientos y mecanismos
que se establezcan en el Reglamento Uniforme de Compras y
Subastas. La notificación de adjudicación de subasta será
notificada adecuadamente, mediante correo federal
certificado con acuse de recibo o correo electrónico, a todas
las partes que tengan derecho a impugnar tal determinación.
La notificación se realizará de manera simultánea y
utilizando el mismo método de notificación para todas las
partes. La notificación de adjudicación estará́ debidamente
fundamentada y deberá incluir los fundamentos que
justifican la determinación, aunque sea de forma breve o
sucinta, en aras de que los foros revisores puedan revisar
tales fundamentos y así́ determinar si la decisión fue
arbitraria, caprichosa o irrazonable. Como mínimo, la
notificación debe incluir: (1) los nombres de los licitadores
que participaron en la subasta y una síntesis de sus
propuestas; (2) los factores o criterios que se tomaron en
cuenta para adjudicar la subasta; (3) los defectos, si alguno,
que tuvieran las propuestas de los licitadores perdidosos; y
(4) la disponibilidad y el plazo para solicitar revisión
administrativa ante la Junta Revisora de Subastas de la
Administración de Servicios Generales y revisión judicial.
La determinación final de la Junta de Subastas contendrá
determinaciones de hechos y conclusiones de derecho. La
parte adversamente afectada por una actuación,
determinación final o resolución de la Junta de Subastas
podrá presentar un recurso de revisión, conforme a lo
establecido en el Capítulo VIII de esta Ley.
Cónsono con esto, nuestro Tribunal Supremo ha expresado
que la notificación de la adjudicación de una subasta debe ser
fundamentada, al menos de forma sumaria y sucinta. [CITATION]
Es decir, al menos debe incluir la siguiente información: los nombres de los
licitadores en la subasta y una síntesis de sus propuestas; los
factores o criterios que se tomaron en cuenta para adjudicar la
subasta; los defectos, si alguno, que tuvieran las propuestas de los
licitadores perdidosos y la disponibilidad y el plazo para solicitar la
reconsideración y la revisión judicial. Íd.
ii. Reglamento Núm. 9230 del 18 de noviembre de
La ASG, en virtud de las facultades que le fueron concedidas
en la Ley Núm. 73-2019, adoptó el Reglamento Uniforme de
Compras y de Subastas de Bienes, Obras y Servicios No
Profesionales de la Administración de Servicios Generales del
Gobierno de Puerto Rico, Reglamento Núm. 9230 de 18 de KLRA202400262
noviembre de 2019. En este, se establecen todas las normas y los
procedimientos a seguir por la ASG en la tramitación de todas sus
compras y subastas.
Con relación a la controversia que nos atañe, la Sección 7.3.5
del Reglamento Núm. 9230 regula las enmiendas al pliego de
subastas. Específicamente, dicha sección establece que solo se
podrán efectuar enmiendas al pliego de subasta:
1. Cuando la agencia peticionaria someta enmiendas;
2. Cuando a juicio del Administrador los términos allí
dispuestos sean irrazonables;
3. Cuando se descubra algún error sustancial e
insubsanable en el pliego de subasta;
4. Cuando se interese aumentar o disminuir términos o
cantidades o variar condiciones o especificaciones;
5. Cuando se reconsideren los términos del pliego.
De otro lado, el Reglamento 9230 define Criterios de
Evaluación como aquellos
[c]riterios enumerados en el pliego de subasta o solicitud de
propuestas los cuales son utilizados por la Administración
Auxiliar de Adquisiciones o Juntas de Subastas para
evaluar, clasificar y recomendar ofertas o propuestas para su
adjudicación. También incluye los criterios enumerados en
una solicitud de cualificaciones a ser evaluados por el Comité
Evaluador de Subastas o Propuestas para recomendar la
cualificación de un proponente potencial.
Cónsono con lo anterior, la Sección 7.3.17 (2) del Reglamento
9230 establece los criterios básicos de evaluación utilizados por la
Junta de Subastas para evaluar las ofertas:
a. La exactitud con la cual el licitador ha cumplido con las
especificaciones, los términos y las condiciones del pliego
de la subasta formal.
b. La calidad de lo bienes, obras y servicios no profesionales
ofrecidos y como estos cumplen con las especificaciones
y satisfacen las necesidades establecidas. En las
situaciones en que se efectuaron pruebas con muestras
suministradas por el licitador, se incluirá la evaluación
de la muestra del bien entre los aspectos de este criterio
de calidad.
c. Si el precio es competitivo y comparable con el
prevaleciente en el mercado. Además, aplicar el porciento
de preferencia establecido si la persona o la entidad ha
presentado una Resolución de la Junta para la Inversión
en la Industria Puertorriqueña o cualquier documento
acreditativo de preferencia, según dispuesto en leyes
preferenciales.
d. La habilidad reconocida del licitador para llevar a cabo
trabajos de la naturaleza bajo la consideración en obras
y servicios no profesionales. KLRA202400262
e. La responsabilidad económica del licitador y las
experiencias de la Administración con el cumplimiento de
contratos anteriores de naturaleza igual o parecida.
f. El término de entrega más próximo, si este se ha hecho
constar como una de las condiciones.
g. La capacidad económica y financiera, así como la
trayectoria y experiencia previa del licitador para proveer
esto servicios o bienes y cumplir con los términos de
entrega y garantías del producto o servicio.
h. El período específico o los términos aplicables a cada
garantía, sus limitaciones y condiciones, los pasos
requeridos para reclamar la garantía, que entidad
proveerá el servicio de reemplazo, subsanación,
corrección o reparación del bien o el servicio.
i. Si el licitador cualifica como empresa minoritaria o de
mujeres, u otra para la cual se deba conceder una
preferencia bajo cualquier ley aplicable.
j. Cualquier otro criterio pertinente que represente el mejor
valor para el Gobierno de Puerto Rico.
Todos estos criterios se tabularán y presentarán en forma
comparativa entre licitadores y este informe formará parte
del expediente de la subasta.
Además, el Reglamento 9230 define el término
Especificaciones como un conjunto de características primordiales
de bienes, obras o servicios no profesionales, utilizados como
referencia para cada renglón de cotización, subasta o propuesta:
características físicas, funcionales, de estética o de calidad
requerida, con las que se describen los bienes, obras y servicios no
profesionales. Artículo 1.6 (28) del Reglamento 9230, [CITATION].
Asimismo, la Sección 7.3.17 (10) regula lo concerniente al Rechazo
Global. A esos efectos, la Junta de Subastas:
Podrá rechazar cualquiera o todas las ofertas para una
subasta formal en las situaciones siguientes:
a. Los licitadores no cumplan con alguno de los requisitos,
especificaciones o condiciones estipuladas.
b. Los precios obtenidos sean irrazonables o los términos
resulten onerosos.
c. Cuando las ofertas demuestren que los licitadores
controlan el mercado del producto solicitado y se
entienda que se han puesto de acuerdo entre sí para
cotizar precios excesivos. En tal caso, se realizará el
referido correspondiente al Departamento de Justicia.
De ocurrir alguna de las circunstancias antes mencionada,
la Junta de Subastas deberá emitir una segunda
convocatoria del proceso. Solo en caso de que las ofertas
recibidas en dicha convocatoria resulten nuevamente en las
circunstancias arriba mencionada, procederá el trámite de
compra excepcional. La Junta de Subastas deberá levantar
un acta de cada proceso en el cual exponga detalladamente
la situación particular acaecida como resultado de cada
convocatoria. Ambas actas deberán obrar en el expediente,
como requisito previo al trámite de compra excepcional. KLRA202400262
[SEGMENT 9]
Por su parte, la Desviación Permisible establecida en la
Sección 7.3.17 (11) establece que,
La Junta de Subastas podrá aceptar desviaciones mínimas
en las especificaciones, términos y condiciones de las ofertas
recibidas, siempre y cuando concurran los siguientes
requisitos:
a. Ningún licitador ofrezca el bien o servicio no profesional
con las especificaciones requeridas;
b. no se afecte el propósito original a que está destinada la
subasta y;
c. el precio cotizado sea competitivo y comparable con el
prevaleciente en el mercado.
La Junta de Subastas se reserva el derecho de obviar
cualquier informalidad o diferencia de menor importancia en
los términos y condiciones, si cumple con el propósito para
el que se solicitan y resulta beneficioso para el Gobierno de
Puerto Rico. Las desviaciones no podrán afectar
sustancialmente la calidad, capacidad o características
esenciales de los artículos o servicios solicitados. Deberá
incluirse en el expediente de la subasta un memorando
explicativo de la desviación permitida.
Asimismo, la Impugnación del Pliego está definido en el
Artículo 1.6 (34) del Reglamento 9230 como la “[s]olicitud que hace
un licitador o un proponente ante la Administración Auxiliar de
Adquisiciones para que revise las especificaciones y condiciones
contenidas en los pliegos de una subasta o propuesta convocada”.
Así, la Sección 7.3.6 del Reglamento 9230 establece lo relativo a la
impugnación del pliego de la subasta. A esos efectos, la mencionada
sección dispone, entre otras cosas, que,
[s]i un licitador interesado en participar en una subasta
formal no estuviera de acuerdo con los términos finales,
instrucciones, especificaciones o condiciones establecidas en
el pliego de la subasta, podrá radicar personalmente ante la
Administración Auxiliar de Adquisiciones el correspondiente
escrito de impugnación, dentro de los tres (3) días laborables
siguientes a la fecha en que la Administración hace
disponible los pliegos de la subasta. Toda impugnación del
pliego de la subasta radicada fuera del término aquí
establecido será rechazada de plano. Deberá notificarse
copia del recurso presentado a los licitadores invitados a la
subasta formal.
De otro lado, la Sección 7.2.8 del mencionado cuerpo
reglamentario establece lo concerniente a las reuniones pre-
subasta. Específicamente, dicha sección dispone que la
Administración Auxiliar de Adquisiciones podrá celebrar reuniones
pre-subasta no menos de cinco (5) días laborables antes de la fecha KLRA202400262
fijada para el acto de apertura. Así pues, toda pre-subasta tendrá el
propósito de aclarar a los licitadores las dudas que surjan en torno
al pliego de subasta. [CITATION] Además, se establecerá un período y fecha
límite para suministrar preguntas escritas. [CITATION] Toda pregunta o
solicitud de documentos presentada por los potenciales licitadores
a la Administración Auxiliar de Adquisiciones será canalizada por
medio de la Secretaría de la Administración Auxiliar de
Adquisiciones. [CITATION] Además, toda pregunta escrita y sometida a la
consideración de la Administración Auxiliar de Adquisiciones será
contestada en el término establecido para ello. [CITATION] Tanto la pregunta
como la contestación se ofrecerá a los demás licitadores para su
beneficio y para añadir transparencia al proceso. [CITATION]
III.
En su primer señalamiento de error, la parte recurrente alegó
que erró la Junta de Subastas al enmendar las especificaciones del
equipo luego de la reunión pre-subasta compulsoria y transcurrido
el término límite para que los licitadores sometieran preguntas,
adaptándolas para favorecer a otro licitar en perjuicio suyo.
Según la Sección 7.2.8 del Reglamento 9230, supra, la
Administración Auxiliar de Adquisiciones podrá celebrar reuniones
pre-subasta no menos de cinco (5) días laborables antes de la fecha
fijada para el acto de apertura. Es decir, la Junta de Subastas tiene
discreción para llevar a cabo una reunión pre-subasta. Según surge
del expediente ante nos, la Junta de Subastas celebró una (1)
reunión pre-subasta, sin embargo, no estaba obligada a celebrar
una segunda reunión pre-subasta. Por consiguiente, no
encontramos indicio de que la Junta de Subasta haya actuado de
forma irrazonable. Es decir, la determinación de la Junta de Subasta
de celebrar una sola reunión pre-subasta representó un ejercicio
razonable de su discreción administrativa. KLRA202400262
Por otra parte, debemos auscultar si incidió la Junta de
Subasta al enmendar las especificaciones del equipo luego de la
reunión pre-subasta. Según surge del derecho que antecede, la
Sección 7.3.5 del Reglamento 9230, [CITATION], dispone, entre otras
cosas, que solo se podrán efectuar enmiendas al pliego de la subasta
“[c]uando se interese aumentar o disminuir términos o cantidades,
o variar condiciones o especificaciones”. Así, nada requiere la citada
disposición reglamentaria a los efectos de que la Junta de Subastas
debe justificar la enmienda al pliego de subastas.
Con relación a la alegación del recurrente de que la Junta de
Subastas enmendó las especificaciones del equipo, luego de la
reunión pre-subasta y transcurrido el término límite para que los
licitadores sometieran preguntas, surge del expediente que la Junta
de Subastas notificó el cambio en las especificaciones el 5 de agosto
de 2022 y el acto de apertura fue el 15 de agosto de 2022. Por lo
tanto, la Junta de Subastas emitió la enmienda al pliego de subastas
nueve (9) días antes del acto de apertura. Así, la enmienda a las
especificaciones del equipo se hizo ocho (8) días antes de que
expirara el término concedido en la Sección 7.3.5 del Reglamento
Núm. 9230, [CITATION]. En consecuencia, el primer error señalado no se
cometió.
En su segundo señalamiento de error, la parte recurrente
adujo que erró la Junta de Subastas al no adjudicarle la buena pro
de la Subasta 23J, según recomendó el DTOP, cuando la diferencia
en la especificación del equipo estriba en solo punto cuatro (.4)
caballos de fuerza lo que constituye una “desviación permisible” bajo
la Sección 7.3.17 (11) del Reglamento de Subastas que no afecta el
propósito y operación del equipo. No le asiste la razón.
En primer lugar, de la Notificación Núm. 1 emitida por la ASG
el 5 de agosto de 2022, surge que la subasta es para la adquisición KLRA202400262
de excavadoras compactas para el DTOP, entidades
gubernamentales, exentas y Municipios del Gobierno de Puerto
Rico. Así pues, es menester dejar claro que la aludida excavadora no
era para uso exclusivo del DTOP, sino que también sería utilizada
por otras entidades gubernamentales.
En segundo lugar, con relación a la Desviación Permisible, la
Sección 7.3.17 (11) del [CITATION], establece que la
Junta de Subastas podrá aceptar desviaciones mínimas en las
especificaciones, términos y condiciones de las ofertas recibidas,
siempre y cuando concurran ciertos requisitos. Es decir, las
desviaciones permisibles también pueden ser realizadas por la
Junta de Subastas de forma discrecional. En el caso de autos, la
Junta de Subastas decidió, a su discreción y luego de evaluadas las
ofertas, no realizar una desviación permisible. En consecuencia,
emitió un Rechazo Global ante el incumplimiento de los licitadores
con las especificaciones establecidas en la UEA-23-018. Con esta
actuación, la parte recurrida actuó dentro de la discreción
establecida en la Sección 7.3.17 (10) del [CITATION].
En fin, no hay indicios en el expediente ante nuestra
consideración que demuestren que la actuación de la Junta de
Subastas constituye un abuso de discreción o constituye una
actuación irrazonable, ilegal o contraria a derecho. Así, entendemos
que la actuación de la Junta de Subastas estuvo dentro de los
márgenes de las facultades que le fueron delegadas por ley.
IV.
Por los fundamentos que anteceden, confirmamos el dictamen
recurrido. ```plaintext
KLRA202400262
Lo acordó y manda el Tribunal, y lo certifica la secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
====== Instruction ======
```
[SEGMENT 10]
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL IV
NELSON COTTO APONTE Revisión
RECURRIDO Administrativa
procedente de la
V. Comisión Apelativa
del Servicio Público
AUTORIDAD DE ENERGÍA KLRA202400270 Núm. 2021-05-
ELÉCTRICA
RECURRENTE
Sobre:
Movilidad
Panel integrado por su presidenta, la Jueza Cintrón Cintrón, la
Jueza Rivera Marchand y el Juez Rodríguez Flores
Rivera Marchand, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 12 de julio de 2024.
Comparece la Autoridad de Energía Eléctrica de Puerto Rico
(AEE o recurrente) y solicita la revocación de una Resolución emitida
el 27 de marzo de 2024 por la Comisión Apelativa del Servicio
Público (CASP o Comisión). En esta, la CASP declaró nula la
transferencia de Nelson Cotto Aponte (Sr. Cotto Aponte o recurrido)
como empleado de la AEE a un puesto en el Departamento de Salud
como parte del plan de movilidad dispuesto en la Ley Núm. 8 de 4
de febrero de 2017, conocida como la Ley para la Administración y
Transformación de los Recursos Humanos en el Gobierno de Puerto
Rico (Ley Núm. 8-2017), [CITATION]
Por los fundamentos que exponemos a continuación,
revocamos la Resolución recurrida por ausencia de parte
indispensable. Veamos.
I.
El Sr. Cotto Aponte ocupaba el puesto de Supervisor Principal
de la Oficina de Acomodo Razonable en la AEE. Por motivo de la Ley
Núm. 120 de 20 de junio de 2018, conocida como Ley para
Transformar el Sistema Eléctrico de Puerto Rico (Ley Núm. [CITATION]-
Número Identificador
SEN2024________ KLRA202400270
2018), 22 LPRA secs. 1111 et seq. y la Ley Núm. 8-2017, supra, la
AEE le notificó que sería transferido de su puesto, mediante el
mecanismo de movilidad al Departamento de Salud en la Región de
Caguas. Al reportarse a dicho lugar, no se le indicó a qué oficina
debía acudir, por lo que se dirigió al Departamento de Salud en San
Juan, donde en la división de prevención evaluaron su preparación
académica y experiencia laboral. Como resultado de lo antes, lo
asignaron al puesto de Coordinador de Programas II en la Secretaría
Auxiliar de Promoción y Protección de Salud con el mismo sueldo
que devengaba en la AEE.
Inconforme, el Sr. Cotto Aponte interpuso una apelación,
únicamente, en contra de la AEE, ante la CASP. La apelación fue
notificada a la Oficina de Administración y Transformación de los
Recursos Humanos del Gobierno de Puerto Rico (OATRH), a la
Oficina de Gerencia y Presupuesto (OGPe), a la Autoridad de
Asesoría Financiera y Agencias Fiscal de Puerto Rico (AAFAF) y al
Departamento de Salud. Sin embargo, la CASP no ordenó la
comparecencia de dichas dependencias gubernamentales.
Luego de recibir la postura de la AEE y de aquilatar la prueba
así como el derecho aplicable, la CASP emitió una Resolución en la
cual adoptó la recomendación de la Oficial Examinadora, asignada
al caso. En esencia, la CASP resolvió que la OATRH es la encargada
de poner en función cada plan de movilidad en la prestación de
servicios y funciones del Gobierno de Puerto Rico. Por ello, adoptó
el Reglamento Núm. 8992 en el que se establecen los criterios a
tomar en consideración al disponer sobre un traslado. Resaltó el
Artículo 6, Sección 6.4, inciso i (1) sobre necesidad de servicio.
También se refirió a lo establecido en el Memorando Especial de la
OATRH Núm. 13-2021, intitulado Proceso de Movilidad para los
Empleados de la Autoridad de Energía Eléctrica (AEE) de 26 de marzo
de 2021, así como sus enmiendas (Memorando Especial Núm. 18-
2021 de 23 de abril de 2021). Lo antes, constituye el proceso de
movilidad “involuntaria” y aplica al caso del Sr. Cotto Aponte. KLRA202400270
La CASP concluyó que, según los argumentos a favor del Sr.
Cotto Aponte que, la AEE, la OATRH y el Departamento de Salud
incurrieron en múltiples incumplimientos en el proceso. En
particular, sostuvo que, no se tomó en consideración la necesidad
del servicio para poner en función el plan de movilidad de la AEE. A
esos efectos determinó que, la transferencia es nula. En su
consecuencia, ordenó a la AEE a ubicar al recurrente en un puesto
similar y, de este no existir, buscar opciones de trabajo dentro del
Gobierno de Puerto Rico en colaboración con la OATRH.
Inconforme, la AEE solicitó reconsideración. Reiteró sus
argumentos sobre la eficacia de la transferencia al Departamento de
Salud. Especialmente, arguyó que la OATRH es parte indispensable
en el presente caso por lo cual, sin su participación, la CASP carece
de jurisdicción. A tono con lo anterior, la OATHR presentó una
Moción de reconsideración y, separadamente, una Moción Asumiendo
Representación Legal y en Solicitud de Intervención. Destacó que,
nunca fue incluido como parte en el caso administrativo y, en su
consecuencia, no tuvo acceso al proceso previo a la adjudicación de
la apelación.
Evaluado lo anterior, la CASP denegó la súplica, rechazando
así la intervención de la OATRH. Aun insatisfecha, la AEE acude
ante esta Curia y señala los siguientes errores, a saber:
Erró la Comisión al dictar No Ha Lugar la Moción de
Reconsideración al carecer de jurisdicción por falta de
acumulación de parte indispensable.
Erró la Comisión al basar su determinación en un criterio de
evaluación (necesidad de servicio) que no fue contemplado
para las transferencias (movilidad) de los empleados de la
Autoridad de Energía Eléctrica en virtud de la Ley 120-2018
y el Memorando Especial.
Erró la Comisión al declarar nula la transferencia (movilidad)
de la Parte Apelada a pesar de no existir incumplimiento por
parte de la Parte Apelante con los criterios de evaluación
aplicables a la movilidad de la Parte Apelada.
1
Apéndice, pág. 82-105. KLRA202400270
En cumplimiento con nuestra Resolución, emitida el 6 de junio
de 2024, Cotto Aponte presentó su alegato el 8 de julio de 2024. Con
el beneficio de la comparecencia de ambas partes, resolvemos.
II.
A. La Revisión Judicial y la Intervención en Procesos
Administrativos
La Sección 4.1 de la Ley Núm. 38-2017, Ley de Procedimiento
Administrativo Uniforme del Gobierno de Puerto Rico (LPAU), 3
LPRA sec. 9671, dispone que las decisiones administrativas pueden
ser revisadas por el Tribunal de Apelaciones. La finalidad de esta
disposición es delimitar la discreción de los organismos
administrativos para asegurar que estos ejerzan sus funciones
dentro de los márgenes de las facultades que le fueron delegadas
por ley. [CITATION], 2024
TSPR 29, resuelto el 26 de marzo de 2024. Al mismo tiempo, permite
velar que los entes administrativos den cumplimiento a los
mandatos constitucionales, en especial, el debido proceso de ley. Íd.
De otra parte, es norma reiterada que, al revisar las
determinaciones de los organismos administrativos, los tribunales
apelativos le conceden gran consideración y deferencia, por la
experiencia y el conocimiento especializado que estos poseen.
[CITATION], supra; [CITATION], 211 DPR 99, 113-114
(2023). En particular, la Sección 4.5 de la LPAU, 3 LPRA sec. 9675,
establece que los tribunales deben sostener las determinaciones de
hechos de las agencias si están basadas en "evidencia sustancial
que obra en el expediente administrativo".
Como vemos, al ejercer su facultad revisora, los tribunales no
pueden descartar de forma absoluta el dictamen administrativo sin
antes haber examinado la totalidad del expediente y haber
determinado que la agencia actuó irrazonablemente al ejercer su
discreción administrativa. [CITATION], supra. Al mismo tiempo, el Tribunal Supremo KLRA202400270
[SEGMENT 11]
ha resuelto con igual firmeza que, los tribunales no podemos
imprimirle un sello de corrección, so pretexto de deferencia, a las
determinaciones o interpretaciones administrativas irrazonables,
ilegales, o simplemente contrarias a derecho. Íd; [CITATION].
Por otro lado, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION]. Por ende, "los tribunales
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". Íd. Lo anterior
responde a la vasta experiencia y al conocimiento especializado o
expertise que tienen las agencias sobre los asuntos que le son
encomendados. [CITATION].
Por consiguiente, dada la presunción de corrección y
regularidad que reviste a las determinaciones de hecho elaboradas
por las agencias administrativas, éstas deben ser respetadas
mientras la parte que las impugna no produzca evidencia suficiente
para derrotarlas. [CITATION]. Al
revisar las decisiones de las agencias, el criterio rector que debe
guiar a los tribunales es la razonabilidad de la actuación, aunque
esta no tiene que ser la única o la más razonable. [CITATION].
Por lo tanto, si al momento de examinar un dictamen
administrativo se determina que: (1) la decisión administrativa no
está basada en evidencia sustancial; (2) la agencia erró en la
aplicación de la ley; (3) el organismo administrativo actuó de manera
irrazonable, arbitraria o ilegalmente; o (4) su actuación lesiona KLRA202400270
derechos constitucionales fundamentales, entonces la deferencia
hacia los procedimientos administrativos cede. Íd.
De otra parte y atinente al recuso ante nos, es preciso señalar
que, la intervención en el ámbito de derecho administrativo se rige
por la LPAU, 3 LPRA, sec 9601, et. seq. Recientemente en [CITATION]
el Tribunal Supremo dispuso que la intervención
es uno de los mecanismos que viabiliza la incorporación de terceros
en un procedimiento adjudicativo. A esos fines, la Sec. 1.3(f) de la
LPAU, 3 LPRA sec. 9603, define interventor como “aquella persona
que no sea parte original en cualquier procedimiento adjudicativo
que la agencia lleve a cabo y que haya demostrado su capacidad o
interés en el procedimiento”. Para que una persona con interés
legítimo en participar de un procedimiento adjudicativo pueda
considerarse interventor debe presentar una solicitud por escrito y
fundamentada a tales efectos. Sec. 3.5 de la LPAU, 3 LPRA sec.
9645. Por su parte, la agencia tendrá discreción para conceder o
denegar la petición, luego de considerar, entre otros factores:
(a) Que el interés del peticionario pueda ser afectado
adversamente por el procedimiento adjudicativo.
(b) Que no existan otros medios en derecho para que el
peticionado pueda proteger adecuadamente su interés.
(c) Que el interés del peticionario ya esté representado
adecuadamente por las partes en el procedimiento.
(d) Que la participación del peticionario pueda ayudar
razonablemente a preparar un expediente más
completo del procedimiento.
(e) Que la participación del peticionario pueda extender
o dilatar excesivamente el procedimiento.
(f) Que el peticionario represente o sea portavoz de otros
grupos o entidades de la comunidad.
(g) Que el peticionario pueda aportar información,
pericia, conocimientos especializados o asesoramiento
técnico que no estaría disponible de otro modo en el
procedimiento. Sec. 1.3 de la LPAU, 3 LPRA 9603.
Los criterios que anteceden deben aplicarse de manera liberal.
Íd. Además, la agencia puede requerir que se le presente información
adicional para estar en posición de emitir su decisión. Íd.
B. Parte indispensable KLRA202400270
La Regla 16.1 de las Reglas de Procedimiento Civil, 32 LPRA
Ap. V, R. 16.1 establece quiénes son parte indispensable, a saber:
“[l]as personas que tengan un interés común sin cuya presencia no
pueda adjudicarse la controversia [...]” Entiéndase que, es
indispensable aquella parte a quien se le violentaría su debido
proceso de ley si se adjudica la controversia sin su presencia. [CITATION]. Véase además
[CITATION], resuelto el
16 de noviembre de 2023.
Como se sabe, el propósito de la Regla 16.1, supra, es proteger
a las personas, naturales o jurídicas, que no formen parte de un
pleito, de los efectos que acarrea la sentencia dictada. [CITATION]. Al mismo tiempo, evita la
multiplicidad de pleitos. Íd. Sobre el particular, nuestro más Alto
Foro ha resuelto que, la falta de parte indispensable constituye una
defensa irrenunciable, susceptible de invocarse en cualquier etapa
de los procedimientos. Íd., pág. 66. Lo anterior, debido a que, el
efecto de no traer a una parte indispensable redunda en una
violación a su debido proceso de ley. Íd. Por tanto, la ausencia de
parte indispensable es un fundamento para dejar sin efecto una
sentencia por nulidad. [CITATION].
Ello, con el efecto de dejar sin jurisdicción al tribunal para resolver
la controversia en ausencia de una parte indispensable. [CITATION], supra, pág. 65.
III.
En el primer señalamiento de error, la recurrente levanta un
planteamiento jurisdiccional sobre falta de parte indispensable.
Además, cuestiona en el segundo y tercer error los criterios de
evaluación aplicados en el proceso de movilidad del recurrido.
Iniciamos nuestro análisis evaluando el primer error por
tratarse de un asunto jurisdiccional prioritario. La AEE argumenta
que, el dictamen de la Comisión es nulo por haberlo emitido sin que KLRA202400270
la OATRH participe en el proceso, siendo esta última parte
indispensable. Lo antes, debido a que, la OATRH es quien ostenta el
peritaje sobre todo asunto relacionado al movimiento o transacción
de personal, realizado mediante un plan de movilidad. De igual
manera la AEE señala que, la OATRH es quien único goza de
facultad para crear e implementar planes de movilidad, por virtud
de la [CITATION], supra.
La recurrente añade que, la Comisión le ordenó entablar un
proceso de diálogo con el recurrido y con la OATRH en la búsqueda
de opciones de trabajo para el Sr. Cotto Aponte, dentro del Gobierno
de Puerto Rico. Lo antes, sin la OATHR figurar como parte en este
asunto y sin permitir su intervención. Sobre tales bases, la AEE
argumenta que la CASP actuó sin jurisdicción al emitir el dictamen
recurrido, por falta de parte indispensable.
Por su parte, el recurrido arguyó que, la OATRH compareció
por primera vez, con posterioridad a la notificación de la
determinación administrativa recurrida, mediante un escrito de
intervención y reconsideración, por lo que era su responsabilidad
comparecer en una etapa anterior. Ante ello, sostuvo en síntesis
que, la determinación administrativa goza de eficacia y es correcta
en derecho.
Hemos evaluado las posturas de las partes y concluimos que
la agencia recurrida incidió al denegar la solicitud de intervención
interpuesta por la OATRH, así como la suplica de la AEE, a esos
efectos. De nuestro análisis del expediente y según la normativa
antes expuesta, observamos que, la agencia debió reconocer que en
este caso se reúnen los criterios (Sec. 1.3 incisos (a),(b),(d),(g) de la
[CITATION], supra) para haber permitido la intervención de la OATRH. En
particular colegimos que, el interés de OATRH puede ser afectado
adversamente por el procedimiento adjudicativo ya que no existen
otros medios en derecho para que pueda proteger adecuadamente
su interés en este caso. Reconocemos además que, la participación
de la OATRH puede ayudar razonablemente a preparar un KLRA202400270
expediente más completo del procedimiento tomando en
consideración que la OATRH es quien puede aportar información,
pericia, conocimientos especializados o asesoramiento técnico que
no estaría disponible de otro modo en el procedimiento.
Surge claramente de la Sección 6.4(4)(2) de la Ley Núm. 8-
2017, 3 LPRA sec. 1472d, que la OATRH es quien habrá de poner
en función cada plan de movilidad dentro del Gobierno de Puerto
Rico, luego de considerar la necesidad del servicio, la preparación y
experiencia del empleado, entre otros factores. De otra parte, la
Sección 15 de la Ley Núm. 120-2018, 22 LPRA sec. 1121, delega
[SEGMENT 12]
tanto en la AEE como en la OATRH la función de identificar cuáles
plazas son compatibles con la preparación de los empleados
regulares de la AEE sujetos a movilidad. Análogamente, según el
proceso para ubicar a los empleados que se moverán de una
agencia, dispuesto en el Memorando Especial 13-2021, la OATRH
ocupa un rol fundamental en cada uno de los pasos a seguir.
En consideración a la doctrina legal antes expuesta, muy en
particular, a las facultades delegadas a la OATRH en materia de
movilidad de empleados gubernamentales, concluimos que la
OATRH es parte indispensable en este asunto. Por consiguiente, la
Comisión actuó de manera irrazonable al no ordenar su
comparecencia y al denegar su solicitud de intervención. Lo antes,
con el efecto de que, el dictamen recurrido es nulo. En su
consecuencia determinamos que procede permitir la intervención de
OATRH como parte indispensable en el proceso administrativo de
rigor. El primer error señalado se cometió. Por tratarse de un error
sobre un asunto jurisdiccional de la agencia, se hace innecesario
atender los restantes errores señalados.
IV.
Por los fundamentos antes discutidos, revocamos la
Resolución recurrida y devolvemos el asunto a la Comisión para que
proceda conforme a lo aquí resuelto. It seems that there are no court ruling citations in the provided part of the court ruling. Therefore, no replacements are necessary. The text remains unchanged.
====== Revised Court Ruling ======
KLRA202400270
Lo acordó el Tribunal y lo certifica la Secretaria del Tribunal
de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL XI
YAIRELEE SANTIAGO REVISIÓN
MÉNDEZ ADMINISTRATIVA
procedente del
Recurrida Departamento de
Asuntos del
Consumidor (DACo)
V.
KLRA202400223
Caso Núm.: PON-
OFERTAS AUTO PR
-0004520
CORP.
Sobre: COMPRA
Recurrente VENTA DE
VEHICULOS DE
MOTOR
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, 27 de junio de 2024.
Comparece ante nos, Ofertas Autos PR Corp. (Ofertas Auto o
recurrente) mediante una Petición de Revisión Judicial. Nos solicita
la revocación de una Resolución emitida y notificada el 4 de abril de
2024 por el Departamento de Asuntos del Consumidor, Oficina
Regional de Ponce (DACo). Mediante el referido dictamen, el DACo
declaró Ha Lugar la Querella presentada por la señora Yairelee
Santiago Méndez (Santiago Méndez o recurrida) en contra de la parte
recurrente.
Por los fundamentos que expondremos a continuación, se
confirma la Resolución recurrida.
I.
El 17 de agosto de 2023, la señora Santiago Méndez presentó
una Querella ante el Departamento de Asuntos del Consumidor
contra Ofertas Autos PR Corp. (Ofertas Auto) y Popular Auto, LLC
(Popular Auto).1 En ajustada síntesis, alegó que el 8 de julio de 2022
1 Apéndice de la parte recurrente, págs. 1-6.
Número Identificador
SEN2024_________ KLRA202400223
compró un vehículo de motor Toyota modelo C-HR 2018 por la
cantidad de $24,595.00. Indicó que adquirió la unidad vehicular
mediante un acuerdo de financiación con el Banco Popular. No
obstante, aseveró que el 12 de mayo de 2023 advino en conocimiento
de que su vehículo no tenía piezas originales. Argumentó que no
hubiera comprado dicho vehículo de conocer ese aspecto. Por lo
anterior, solicitó el saldo del balance de financiación y la devolución
del dinero depositado para la adquisición de la unidad vehicular.
En respuesta, el 9 de octubre de 2023, Ofertas Auto sometió
su Contestación a la Querella. [CITATION] En esencia, adujo que en mayo de
2023, la querellante solicitó que las piezas del vehículo fuesen
reemplazadas. Mencionó, además, que ésta posteriormente acudió
a la Unidad de Vehículos Hurtados donde inspeccionó su automóvil.
Luego de dicho trámite, indicó que el 19 de mayo de 2023 suscribió
el siguiente acuerdo:
Por este medio deseo informar que Ofertas Auto PR,
mediante representación del Sr. Rionald Rivera Torres,
se hace responsable del cambio de piezas del vehículo
Toyota C-HR, 2018, tablilla IZ0-349, Serie
NMTKMBX5JR052496, para completar el registro de las
nuevas piezas.
Estando así conforme la Sra. Yairelee Méndez con el
trámite de reasignar las piezas del vehículo. [CITATION]
En vista de ello, señaló que la querellante formalizó libre y
voluntariamente el precitado acuerdo. En otros extremos, levantó
como defensas afirmativas la doctrina de actos propios y manos
libres. Argumentó, a su vez, que la Querella presentada no justifica
la concesión de remedios.
Así las cosas, el 3 de noviembre de 2023, el DACo celebró una
vista administrativa en la cual comparecieron la señora Santiago
[CITATION] KLRA202400223
Méndez por derecho propio, Ofertas Auto y Popular Auto
acompañados de sus representantes legales.4
Luego de evaluar la prueba admitida en evidencia, el 4 de abril
de 2024, la agencia recurrida emitió una Resolución en la cual
declaró Ha Lugar la Querella presentada en contra de las entidades
recurrentes. Al respecto, formuló las siguientes determinaciones de
hechos:
. El 8 de julio de 2022 la querellante, Yairelee Santiago
adquirió el vehículo de motor usado Toyota modelo CHR
del año 2018 en Ofertas Auto PR Corp. en Ponce, Puerto
Rico por la cantidad de $24,595.00 y entreg[ó] en “trade
in” un vehículo que anteriormente había adquirido en
este mismo dealer, marca Hyundai, Modelo Elantra del
año 2017, por el cual obtuvo un crédito de $15,544.00,
según surge de la orden de compra.
2. La querellante indica que Ofertas Auto PR le aprobó
la adquisición del vehículo por lo que ella procedió a
probar el mismo e indicó que se sentía bien.
3. La querellante firmó documentos de financiamiento,
seguro, orden de compra y un documento que
certificaba que el baúl no estaba funcionando ni las
luces por el equipo de música y que aceptaba la guagua
aún [sic] sabiendo esto.
4. La querellante indica que, al momento de la compra
del vehículo, la querellada Ofertas Auto PR, nunca le
indicó que ese vehículo había sido chocado.
5. Luego de diez (10) meses con el vehículo, para el 12
de mayo de 2023, la querellante visitó un dealer en
Caguas e intentó dar el vehículo en “trade in”. Es en ese
dealer quien le indican a la querellante, que el vehículo
tenía piezas que no le pertenecían.
6. La querellante afirma que ese mismo día (12 de mayo
de 2023) fue a Ponce y visitó el dealer Auto Ofertas PR
para indicarle al vendedor Francisco Barrios y al Sr.
Rionald Rivera que el vehículo contenía piezas que no le
pertenecían
7. La querellante afirma que el Sr. Rionald Rivera
verificó el vehículo y le notificó que todo en el vehículo
estaba bien y en orden. Ante esto la querellante les
solicitó una certificación a esos efectos, pero nunca le
entregaron la misma.
8. La querellante afirma que el lunes próximo ella llamó
al Sr. Rionald Rivera y este le indicó que no le podía dar
4 Tal información surge de la relación de hechos contenida en el dictamen
administrativo emitido el 4 de abril de 2024. Véase Apéndice de la parte
recurrente, pág. 16 KLRA202400223
la certificación, porque no se trata de un vehículo que
ella adquiriera en ese momento.
9. Al no recibir la certificación, la querellante, procedió
a obtener una cita en Vehículos Hurtados para poder
verificar que en efecto todo se encontraba bien con el
vehículo.
[SEGMENT 13]
10. La querellante siega que, en Vehículos Hurtados en
Ponce, el agente Alvarado inspección[ó] el vehículo y le
indicó que tenían que quedarse con el vehículo por que
ten[í]a piezas mutiladas, que no eran del mismo y le
pasó el caso al agente León. La querellante les indicó
que ella desconocía sobre eso, que el vehículo había sido
comprado en el dealer Oferta Auto PR Corp. y que nunca
le indicaron que había sido chocada anteriormente;
luego de esto el agente León llam[ó] al dealer.
11. EI Sr. Rional Rivera, representante de la parte
querellada indica que el oficial León de vehículos
hurtados le indicó que tenían que cambiar las piezas
para que la querellante pudiera reasignar las piezas en
CESCO al ser la dueña del vehículo.
12. El 19 de mayo de 2023 la querellante firmó
documento en el dealer Ofertas Auto PR Corporación de
que estaba de acuerdo en que se reasignaran las piezas
del vehículo, autorizando al dealer a llevárselo para el
cambio de piezas. El dealer le entregó un vehículo a la
querellante para su uso, mientras llevaba el vehículo al
taller para cambio de piezas y pintura para que luego se
pudieran reasignar los números de las piezas del
vehículo en CESCO.
13.Luego que la parte querellada cambiara las piezas,
la querellante reasignó ante CESCO las nuevas piezas.
14.La querellante indica que luego que se reasignaran
las piezas, el dealer evaluaría tomar el vehículo en
“trade in”, pero que nunca eso ocurrió.
15. La querellante alegó en la vista administrativa que
luego de reasignar las piezas visit[ó] un dealer Toyota
auscultando la posibilidad de dar el vehículo en “Trade
in” e indica que solo le ofrecieron trece mil dólares
($13,000.00) por el vehículo, según ella, por aparecer en
sistema que había sido chochado anteriormente y por
ser tanta la cantidad que todavía debía el vehículo. La
querellante indica que nadie le quiere dar lo que debe.
16. En la vista administrativa la parte co-querellada
Popular Auto pidió la desestimación en su contra por
no existir una reclamación en su contra en esta
querella. Tanto la querellante, como la parte co-
querellada Ofertas Auto PR Corp. estuvieron de acuerdo
y no se opusieron.
17. La solicitud de la querellante, según ésta sigue
siendo la presentada al momento de la presentación de
la querella. Es decir, solicitud de devolución del dinero
pagado por la unidad y el saldo del balance de la unidad KLRA202400223
financiada por la Popular Auto, junto a todo lo que
proceda en derecho.5
Así expuesto, el DACo concluyó que Ofertas Auto incumplió
con su deber de informar a la parte recurrida la verdadera condición
del vehículo. Ante tales hechos, resolvió que su consentimiento
estuvo viciado al momento de la adquisición del automóvil. Por lo
anterior, decretó la nulidad del contrato de compraventa, y en efecto,
dispuso su resolución. Ordenó, también, la devolución del anterior
vehículo objeto del arreglo trade in, y en caso de no tener tal unidad,
regresar la cuantía correspondiente a su valor ($15,544.00). A su
vez, requirió la devolución del pago de mensualidades depositadas a
favor de Popular Auto.
Inconforme con el dictamen agencial, el 1 de mayo de 2024,
Ofertas Auto acudió ante nos mediante una Petición de Revisión
Judicial. En su recurso, señala la comisión de los siguientes errores:
ERRÓ EL DACO AL CONCLUIR QUE LA
RECURRENTE INCURRIÓ EN DOLO GRAVE QUE DA
LUGAR A LA RESOLUCION DEL CONTRATO ENTRE
LAS PARTES, YA QUE EL CONTRATO FUE
CONFIRMADO POR LA RECURRIDA.
ERRÓ EL DACO AL DECLARAR HA LUGAR LA
QUERELLA Y ORDENAR LA CANCELACIÓN DEL
CONTRATO DE VENTA AL POR MENOR A PLAZOS
CON POPULAR AUTO, LA DEVOLUCIÓN DEL
VEHÍCULO ENTREGADO EN “TRADE IN”, O EL
VALOR DE ESTE AL MOMENTO DE LA
COMPRAVENTA, LA DEVOLUCIÓN DE LAS
MENSUALIDADES PAGADAS POR LA RECURRIDA Y
EL RELEVO DEL CONTRATO DE VENTA AL POR
MENOR A PLAZOS.
El 6 de mayo de 2024, este Tribunal emitió una Resolución en
la cual ordenó a la parte recurrida a presentar su posición dentro
del término de veinte (20) días contados a partir de la notificación.
El 7 de mayo de 2024, la parte recurrente presentó una Certificación
de Notificación. El 14 de mayo de 2024, la representación legal de la
parte recurrente presentó una Moción Notificando Período de
5 Apéndice de la parte recurrente, págs. 2-4. KLRA202400223
Vacaciones. Así, transcurrido el término concedido a la parte
recurrida sin que esta haya comparecido, pasamos a resolver.
II.
A. Revisión judicial de las determinaciones administrativas
La Ley de Procedimiento Administrativo Uniforme del
Gobierno de Puerto Rico, Ley Núm. 38-2017, según enmendada, (3
LPRA sec. 9601 et seq.) (LPAU), se creó a los fines de uniformar los
procedimientos administrativos ante las agencias.
Consecuentemente, desde la aprobación del procedimiento provisto
por la LPAU, los entes administrativos están precisados a conducir
sus procesos de reglamentación, adjudicación y concesión de
licencias y permisos de conformidad con los preceptos de este
estatuto y el debido proceso de ley. [CITATION]
La Sección 4.1 de la LPAU, dispone que las decisiones
administrativas finales pueden ser revisadas por el Tribunal de
Apelaciones. (3 LPRA sec. 9671). La finalidad de esta disposición es
delimitar la discreción de los organismos administrativos para
asegurar que estos ejerzan sus funciones conforme a la ley y de
forma razonable. [CITATION] Véase, además, [CITATION] Es decir, la revisión judicial
permite a los tribunales garantizar que las agencias administrativas
actúen dentro de los márgenes de las facultades que le fueron
delegadas por ley. [CITATION] A su vez, posibilita el poder
constatar que los organismos administrativos “cumplan con los
mandatos constitucionales que rigen el ejercicio de su función,
especialmente con los requisitos del debido proceso de ley”. Íd. Así,
la revisión judicial constituye el recurso exclusivo para revisar los KLRA202400223
méritos de una decisión administrativa sea esta de naturaleza
adjudicativa o de naturaleza informal. [CITATION].
Es norma reiterada que las decisiones de los organismos
administrativos están revestidas de una presunción de regularidad
y corrección, [CITATION]. Esto
debido a que, mediante esta norma se reconoce el peritaje del que
gozan los organismos administrativos en aquellas materias que le
han sido delegadas por ley. [CITATION].
Nuestro máximo Foro ha establecido que, al ejercer la revisión
judicial los tribunales no pueden descartar de forma absoluta la
determinación de una agencia, sino que primero tienen que
examinar la totalidad del expediente y determinar si la
interpretación de la agencia representó un ejercicio razonable de su
discreción administrativa, así fundamentado en la pericia particular
de esta, en consideraciones de política pública o en la apreciación
de la prueba. [CITATION].
Cónsono con lo anterior, la sección 4.5 de la LPAU establece
que los tribunales deben sostener las determinaciones de hechos de
las agencias si están basadas en "evidencia sustancial que obra en
el expediente administrativo". (3 LPRA sec. 9675). Como vemos, la
norma anterior nunca ha pretendido ser absoluta. Por eso, el
Tribunal Supremo ha resuelto con igual firmeza que los tribunales
no pueden extender un sello de corrección, so pretexto de
deferencia, a las determinaciones o interpretaciones administrativas
irrazonables, ilegales, o simplemente, contrarias a derecho. Super KLRA202400223
[CITATION]
Sin embargo, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION]. Por ende, "los tribunales
[SEGMENT 14]
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". [CITATION]. Lo anterior responde a
la vasta experiencia y conocimiento especializado que tienen las
agencias sobre los asuntos que le son encomendados. [CITATION].
Al revisar las decisiones de las agencias, el criterio rector que
debe guiar a los tribunales es la razonabilidad de la actuación,
aunque ésta no tiene que ser la única o la más razonable. [CITATION]. Por lo tanto,
al momento de examinar un dictamen administrativo se determina
que: (1) la decisión administrativa no está basada en evidencia
sustancial; (2) la agencia erró en la aplicación de la ley (3) el
organismo administrativo actuó de manera irrazonable, arbitraria o
ilegalmente; o (4) su actuación lesiona derechos constitucionales
fundamentales, entonces la deferencia hacia los procedimientos
administrativos cede. [CITATION].
En esta tarea, los foros judiciales analizarán los aspectos
siguientes: (1) si el remedio concedido por la agencia fue apropiado;
(2) si las determinaciones de hecho que realizó la agencia están
sostenidas por evidencia sustancial, y (3) si las conclusiones de
derecho fueron correctas. [CITATION]. Mientras que, las determinaciones de hecho KLRA202400223
se deben sostener si las mismas se basan en evidencia sustancial
que surja de la totalidad del expediente administrativo, [CITATION], las
determinaciones de derecho pueden ser revisadas en su totalidad.
[CITATION].
Si bien es cierto que la revisión judicial no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo, [CITATION], los
tribunales revisores descartarán el criterio de los entes
administrativos cuando "no se pueda hallar fundamento racional
que explique o justifique el dictamen administrativo". [CITATION]. Si la interpretación y la aplicación del
derecho no es correcta, el foro apelativo está obligado a intervenir.
[CITATION].
"En esas circunstancias, [el foro apelativo] cederá la deferencia que
merecen las agencias en las aplicaciones e interpretaciones de las
leyes y los reglamentos que administra". [CITATION]. Véase, además,
[CITATION].
B. Derecho de contratos
El contrato es el negocio jurídico biliteral por el cual dos o más
partes expresan su consentimiento en la forma prevista por la ley,
para crear, regular, modificar o extinguir obligaciones. Artículo 1230
del Código Civil (31 LPRA sec. 9751). Así, el Artículo 1232 del Código
Civil establece que, “[e]s facultativo contratar o no hacerlo, y hacerlo,
o no, con determinada persona. Estos derechos no pueden ejercerse
abusivamente ni contra una disposición legal. Las partes pueden
acordar cualquier cláusula que no sea contraria a la ley, a la moral
o al orden público”. (31 LPRA sec. 9753). Lo acordado en los
contratos tiene fuerza de ley entre las partes, ante sus sucesores y
====== End of Part of a Court Ruling ====== KLRA202400223
ante terceros en la forma que dispone la ley. Artículo 1233 del
Código Civil (31 LPRA sec. 9754). En adición, “cuando los términos
de un contrato son claros y no crean ambigüedades, estos se
aplicarán en atención al sentido literal que tengan”. [CITATION]
Así pues, el contrato queda perfeccionado desde que las partes
manifiestan su consentimiento sobre el objeto y la causa, salvo en
los casos en que se requiere el cumplimiento de una formalidad
solemne o cuando se pacta una condición suspensiva. Artículo 1237
del Código Civil (31 LPRA sec. 9771). Según establece el Artículo
1271 del Código Civil (31 LPRA sec. 9881), los tratos previos a la
perfección del contrato deben desarrollarse conforme a la lealtad y
la buena fe entre los probables contratantes. Así, se exige
especialmente el deber de colaborar en la formación del contrato,
obtener y proporcionar información de circunstancias de hecho y
derechos relevantes, mantener la confidencialidad de la información
recibida y conservar el bien que será objeto del contrato futuro. Íd.
De otro lado, nuestro ordenamiento jurídico permite que los
contratos puedan ser anulados. Así pues, la invalidez es una
sanción legal que, mediante una decisión judicial, priva a un negocio
jurídico de sus efectos propios por adolecer de un vicio originario,
esencial e intrínseco al acto. Artículo 341 del Código Civil (31 LPRA
sec. 6311). La invalidez puede invocarse por vía de acción o de
defensa. Íd. A su vez, el Artículo 342 del Código Civil (31 LPRA sec.
6312) establece que,
[e]l negocio jurídico puede ser nulo o anulable.
Es nulo:
(a) si el objeto, la causa o el consentimiento son inexistentes;
(b) si el objeto o la causa son ilícitos;
(c) si carece de las formalidades exigidas por la ley para su
validez; o
(d) si es contrario a la ley imperativa, la moral o el orden
público. KLRA202400223
Es anulable si el otorgante tiene incapacidad de obrar, si
concurre algún vicio de la voluntad, o si el acto adolece de
un defecto de forma no solemne.
Asimismo, los vicios de la voluntad son el error, el dolo, la
violencia y la intimidación. Artículo 285 del Código Civil (31 LPRA
sec. 6191). En vista de ello, el negocio jurídico en el que medie un
vicio de la voluntad es anulable si el vicio fue determinante para su
otorgamiento. Artículo 286 del Código Civil (31 LPRA sec. 6192).
Consecuentemente, el causante del dolo, la violencia o la
intimidación queda sujeto a la indemnización de los daños y
perjuicios resultantes. Íd. En el caso de error, la parte que lo invoca
debe restituir los gastos incurridos por la parte que no incurrió en
el error. Íd. La prueba de la existencia del vicio y de su carácter
incumbe a quien lo alega. Íd.
A tales efectos, el dolo se entiende como un complejo de malas
artes, contrario a la honestidad e idóneo para sorprender la buena
fe ajena, generalmente para beneficio propio, en que viene a
resumirse el estado de ánimo de aquel que no solo ha querido el
acto, sino que, además, se ha previsto y querido las consecuencias
antijuridicas provenientes de él. [CITATION]
144 DPR 659, 666 (1997). El dolo grave es la acción u omisión
intencional por la cual una parte o un tercero inducen a otra parte
a otorgar un negocio jurídico que de otra manera no hubiera
realizado. Artículo 292 del Código Civil (31 LPRA sec. 6211). El dolo
grave es el que causa, motiva, sirve de ocasión y lleva a celebrar el
contrato, de modo tal que, sin él, este no se hubiera otorgado. [CITATION] supra.
Mientras, el dolo incidental es aquel cuya existencia no
produce la nulidad del contrato, sino que se limita a obligar al que
lo empleó, a indemnizar el daño causado. Artículo 294 del Código
Civil (31 LPRA sec. 6213). Ello es así, ya que este tipo de dolo no
tiene una influencia decisiva en la esencial de la obligación. [CITATION] KLRA202400223
[CITATION], supra. En el dolo incidental, contrario al
dolo causante, existe la voluntad de contratar del perjudicado, pero
hay engaño en el modo en que se celebra el contrato. Íd.
Los efectos contrapuestos de cada tipo de dolo son notables.
Es decir, mientras que el dolo causante produce la nulidad del
contrato, el incidental permite únicamente la indemnización por
daños y perjuicios. [CITATION], supra. Así
pues, resulta menester señalar que los dos tipos de dolo vician el
consentimiento en el origen o en la formación del contrato, esto es,
en la etapa de la contratación. Íd.
III.
En el recurso de epígrafe, la parte recurrente planteó que erró
el DACo al concluir que incurrió en dolo grave que da lugar a la
resolución del contrato entre las partes, ya que el contrato fue
confirmado por la recurrida. Asimismo, sostuvo que incidió el DACo
al declarar ha lugar la Querella y ordenar la cancelación del contrato
de venta al por menor a plazos con Popular Auto, la devolución del
vehículo entregado en “trade in”, o el valor de este al momento de la
compraventa, la devolución de las mensualidades pagadas por la
recurrida y el relevo del contrato de venta al por menor a plazos.
De una revisión del expediente ante nos, específicamente de
las determinaciones de hechos de la Resolución recurrida surge que,
en ningún momento la parte recurrente le indicó a la recurrida que
[SEGMENT 15]
el vehículo había sido chocado, ni que tenía piezas que no le
pertenecían. La parte recurrente solo le informó sobre unos
problemas con las luces y el baúl por causa del equipo de música.
Consecuentemente, luego de transcurridos diez (10) meses de
uso del vehículo la parte recurrida intentó dar el mismo en “trade
in” en otro concesionario y es cuando adviene en conocimiento de
que el vehículo que había comprado contenía piezas que no
correspondían al mismo, por haber sido chocado. Acorde a ello, la KLRA202400223
recurrida acudió a Auto Ofertas para indicarle al vendedor Francisco
Barrios y a Rionald Rivera que el vehículo contenía piezas que no le
pertenecían. Así las cosas, Rionald Rivera verificó el vehículo y le
indicó que todo en el vehículo estaba bien y en orden. Por lo cual, la
recurrida les solicitó una certificación a esos efectos, la cual nunca
recibió.
Posteriormente, la recurrida acudió a la oficina de Vehículos
Hurtados para verificar que en efecto todo se encontraba bien con el
vehículo. Entretanto, en Vehículos Hurtados el agente Alvarado
inspeccionó el vehículo y le indicó que tenían que quedarse con el
vehículo por que tenía piezas mutiladas, que no eran del mismo y le
pasó el caso al agente León. Luego, el agente León le indicó a Rionald
Rivera que tenían que cambiarle las piezas al vehículo para que la
recurrida pudiera reasignar las piezas en CESCO, al ser la dueña
del vehículo. Ulteriormente, la recurrida autorizó a la recurrente a
la corrección de las piezas a su costo. No obstante, decidió presentar
la Querella ante el DACo; en la cual dejó claro que de haber sabido
al momento de la compra que el vehículo había sido chocado no
habría adquirido el mismo.
Nuestro ordenamiento jurídico establece que, en el caso de la
venta de un vehículo usado, cuando el vendedor le oculta al
comprador que el vehículo fue impactado y reparado antes de la
compra, se incumple una condición esencial para la venta válida de
un vehículo de motor. [CITATION] Por lo cual, la parte vendedora actúa de manera dolosamente
grave viciando así el consentimiento del comprador, lo cual conlleva
la nulidad del contrato. Íd. No debemos obviar que, el dolo grave es
la acción u omisión intencional por la cual una parte o un tercero
inducen a otra parte a otorgar un negocio jurídico que de otra
manera no hubiera realizado. Artículo 292 del Código Civil, supra. KLRA202400223
De conformidad con los hechos aquí reseñados, y acorde con
el marco jurídico enunciado, procede que confirmemos la
determinación emitida por el DACo. Esto, pues la determinación del
DACo de anular el contrato se sostiene de la prueba presentada y
está correctamente aplicada al derecho vigente.
Indiscutiblemente, el dolo que permea en la controversia ante
nos es el dolo grave, pues la parte recurrida enfatizó que de haber
sabido al momento de la compra que el vehículo había sido chocado
no habría adquirido el mismo. Finalmente, reiteramos que el DACo
decretó correctamente la resolución del contrato de compraventa del
vehículo en controversia. La parte recurrente incumplió con su
deber de informar a la parte recurrida la verdadera condición del
vehículo al momento de pactarse la compraventa.
IV.
Por los fundamentos que anteceden, confirmamos el dictamen
administrativo recurrido.
Lo acordó y manda el Tribunal y lo certifica la Secretaría del
Tribunal de Apelaciones
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
CARMEN SILVA SERRANO REVISIÓN
Y/O RAÚL MARQUEZ ADMINISTRATIVA
CRUZ Procedente del
Departamento de
Recurrida Asuntos al
Consumidor
v. KLRA202300525
Núm.:
CLEMBER LLC CAG-2021-0002696
MANUEL CLEMENTE
ROSADO, SU ESPOSA Y LA Sobre:
SOCIEDAD LEGAL DE Contrato de obras y
GANANCIALES servicio
Recurrente
Panel integrado por su presidenta, la Jueza Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera
Álvarez Esnard, jueza ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de mayo de 2024.
Comparece ante nos el señor Manuel Clemente Rosado
(“Recurrente” o “señor Clemente Rosado”) mediante Recurso de
Revisión presentado el 10 de octubre de 2023. Nos solicita la
revocación de una Resolución emitida el 14 de agosto de 2023 y
notificada el 15 de agosto de 2023 por el Departamento de Asuntos
del Consumidor (“DACo”). Por virtud de la misma, el DACo declaró
Ha Lugar la Querella del caso de epígrafe. Oportunamente, el
Recurrente presentó una Solicitud de Reconsideración. Evaluados
sus argumentos, el 8 de septiembre de 2023, la aludida agencia
emitió una Resolución en Reconsideración, notificada el 13 de
septiembre de 2023, en la cual declaró No Ha Lugar la referida
petición.
Por los fundamentos que exponemos a continuación,
confirmamos el dictamen recurrido.
Número Identificador
SEN(RES)2024____________ KLRA202300525
I.
El 22 de julio de 2022, la señora Carmen Silva Serrano y el
señor Raúl Márquez Cruz (conjuntamente, “Recurridos”)
presentaron una Tercera Querella Enmendada contra el señor
Clemente Rosado ante el Departamento de Asuntos del
Consumidor.[CITATION] En ajustada síntesis, alegaron que el 23 de noviembre
de 2020 suscribieron un contrato de servicios con el representante
corporativo de Clember Corp. En lo concerniente, aseveraron que
pactaron la construcción de un muro de contención en el plazo de
dieciocho (18) semanas a cambio de $55,000.00. No obstante,
indicaron que el Recurrente empezó a ausentarse, a pesar de que
habían depositado el 95% del precio acordado. Adujeron que
remitieron a éste una carta certificada con acuse de recibo, en la
cual expusieron su inquietud en torno a la posibilidad de derrumbe
en el terreno. Sin embargo, alegaron que el correo postal devolvió
dicho comunicado, pues el Recurrente no acudió a buscar la
correspondencia. Advirtieron, además, que a la fecha del contrato
no existía la mencionada corporación debido a que el Departamento
de Estado revocó su incorporación. Por lo anterior, solicitaron la
nulidad del contrato y $78,125.34 en concepto de daños y
perjuicios.
En respuesta, el 15 de febrero de 2023, el señor Clemente
Rosado sometió su Contestación a Tercera Querella Enmendada.[CITATION] En
esencia, alegó que la parte querellante modificó el término para
completar la obra. Detalló que a mediados de febrero de 2021
acordaron verbalmente pausar los trabajos hasta el mes de abril de
2021. Adujo, además, que la parte querellante unilateralmente
resolvió el contrato de obras pese a que la ejecución había iniciado.
En torno a la corporación, indicó que el Departamento de Estado no
[CITATION] KLRA202300525
le notificó la revocación del certificado de incorporación. Así
expuesto, solicitó que el ente administrativo declarase No Ha Lugar
la reclamación presentada en su contra.
Luego de celebrar tres vistas administrativas3, el 14 de agosto
de 2023, el DACo emitió Resolución, notificada el 15 de agosto de
2023, en la cual declaró Ha Lugar la reclamación instada contra el
Recurrente.4 En el referido dictamen, formuló las siguientes
determinaciones de hechos:
. La parte querellante Carmen Silva Serrano, es una
persona retirada, ejercía la profesión de la medicina,
como médico generalista (en lo sucesivo la Querellante).
2. La Querellante contrató los servicios del Ing. José Luis
González Cruz para que le realizara unos planos, para la
construcción de un muro de contención ya que su
residencia localizada en el Bo: Montones del Pueblo de
Las Piedras, estaba presentando grietas en el área de la
marquesina producto de la inestabilidad del terreno
donde está enclavada la residencia1.
3. El Sr. Manuel Clemente Rosado, es una persona mayor
de edad, contratista de trabajos de construcción,
casado con Myriam Cecilia Bernier Rodríguez bajo el
régimen de Capitulaciones Matrimoniales, la cuales
fueron otorgada el 26 de mayo de 2007, ante el
notario público Adrián Omar Díaz Díaz.
4. El Ing. González Cruz le recomendó a los Querellantes,
contratar al Sr. Manuel Clemente Rosado para la
realización de la construcción del muro de contención.
5. El 23 de noviembre de 2020 los Querellantes
suscribieron un Contrato de Obras (en lo sucesivo el
Contrato) con Clember Corp. representada por su
Presidente Manuel Clemente Rosado para la
construcción de un muro de contención en la
residencia de los Querellantes. En la cláusula primera
se estableció la siguiente descripción del proyecto:
Descripción del Proyecto: …La descripción de este
proyecto está sujeta al diseño realizado por el Ing.
José L. González Cruz. Se construirá muro de
contención en acero estructural y concreto. Se
realizará acarreo de material propuesto por diseño
para rellenar y conseguir nivelación con patio. No
se instalará ninguna grama y/o terminado
vegetativo en el relleno propuesto. Los detalles de
los servicios a ofrecerse bajo la construcción
fueron presentados a la Sra. Carmen Silva Serrano
y el Sr. Raúl Márquez Cruz mediante cotización.
Véase Anejo I “Cotización”. Si hubiese una disputa
entre los servicios y labores que comprender el
presente Contrato de Servicios, prevalecerá lo
detallado en la Cotización.
[SEGMENT 16]
3 Surge del expediente que el DACo celebró dichas vistas durante los siguientes
días: el 16 de febrero de 2023, el 30 de marzo de 2023 y el 4 de mayo de 2023.
4 Apéndice del Recurrente. págs. 50-63. KLRA202300525
6. Al momento de los Querellantes suscribir el Contrato,
no se incluyó el Anejo I de Contrato. El Querellado no
presentó evidencia de que los Querellantes firmaran
el Anejo I identificado como Cotización, el cual
formaría parte del Contrato.
7. La Compañía Clember Corp. entró en vigencia el 3 de
noviembre de 2017. Sin embargo, a la fecha que los
Querellantes firmaron el Contrato con Clember Corp.
esa corporación no existía, ya que el 31 de diciembre
de 2019, el Secretario de Estado, Elmer L. Román
González certificó que la corporación Clember Corp.
con número de registro número 401096, había sido
cancelada.
8. El Querellado a pesar de que sabía que Clember Corp.
no existía como Corporación preparó un contrato de
obras, compareciendo como Presidente de un ente
jurídico inexistente, sin notificarle de esa realidad
jurídica a los Querellantes.
9. El Querellado no demostró una buena fe contractual
cuando representó a una corporación inexistente en
la firma de un contrato identificándose como
Presidente de la misma, y cobrando los pagos
efectuados por la Querellante a una Corporación
inexistente. Por tal razón, responde en su carácter
personal, de las obligaciones contraídas en el
Contrato que firmó con los Querellantes.
10. En la cláusula número 4 se estableció la vigencia del
contrato y una cláusula de penalidad. En dicha
cláusula número 4 se dispuso lo siguiente:
El contrato estará vigente desde la fecha de su
ejecución hasta tanto se complete el proyecto de
remodelación y construcción y el mismo sea
aprobado por el Cliente una vez culminado, salvo
que una de las partes termine el Contrato con
anterioridad a ello. El término de este contrato
podrá ser extendido bajo el consentimiento escrito
de ambas partes.
Cláusula de Penalidad: La cotización realizada por
Clember a el Cliente indica que el proyecto se
realizará en 18 semanas[.] Si el proyecto se atrasa
sin que medie justa causa, CLEMBER deberá
pagarle al Cliente $20.00 diarios por ¯ cada día de
atraso.
11. Los trabajos de construcción del muro iniciaron el 25
de noviembre de 2020.
12. El Querellado no le envió una comunicación por
escrito a los Querellantes solicitándole una extensión
de tiempo del contrato como resultado de que sus
empleados se hubiesen enfermado por el COVID 19, y
tuvieran que guardar cuarentana por esa situación. El
Querellado tampoco, presentó una orden de cambio
solicitando una de extensión de tiempo del contrato,
por los días que la lluvia impidió realizar los trabajos
de construcción.
13. La compensación que recibiría el Querellado sería la
cantidad de $55,000.00 cuyos pagos se realizarían de la
siguiente forma: KLRA202300525
Tarea Descripción Duración Costo
1. Firma del Contrato Firma de $27,500.00
(Comprende 50%) Contrato
. Fundidos de
$8, 250.00
Cimiento semanas
(Comprende 15%)
3. Fundido 1ra Fase
$8,250.00
del Muro semanas
(Comprende 15%)
. Fundido 2da Fase
$8, 250.00
Muro (Comprende semanas
%)
5. Completado relleno
$2,750.00
(Comprende 5%) semanas
. Cerrar contrato en
todas sus partes
$55,000.00
semanas
Total
14. La Querellante le pagó al Querellado la cantidad de
$52,250.00. Los pagos se realizaron durante las
siguientes fechas mediante “Manager Check” de la
Cooperativa Las Piedras.
a. 23 de noviembre de 2020 $27, 500.00
b. 10 de diciembre de 2020 $ 8,500.00
c. 19 de enero de 2021 $8, 500.00
d. 9 de febrero de 2021 $ 8,500.00
15. A pesar de que las fases no estaban completadas la
Querellante pagaba las mismas a solicitud del
Querellado porque le indicaba a la Querellante que
necesitaba dinero para materiales para poder
continuar con los trabajos. Para la fecha que la
Querellante efectuó el último pago, la obra de
construcción del muro estaba a un 75% de
construcción.
16. El Querellado incumplió con la cláusula número 9 del
contrato ya que no le entregó a los Querellantes ninguna
factura o informe de progreso de la obra contratada a
pesar de que la Querellante le solicitaba esa información.
La cláusula número 9 del contrato indica lo siguiente:
Reportes y Factura: CLEMBER Facturar[á] al cliente,
inmediatamente por sus servicios terminados en cada
fase, proveyendo un reporte y-o factura por escrito de
las actividades realizadas durante ese periodo, a partir
de la firma de contrato. Los reportes y-o facturas
debe[n] ser entregadas a la mano y-o enviados vía
correo regular o electrónico a las direcciones que se
proveen en el contrato. En la tabla de la Sección 12 de
este Contrato se muestra el tipo de servicios que
CLEMBER proveerá al Cliente, y una agenda de pagos.
17. Luego de efectuado el pago de $8,500.00 el 9 de
febrero de 2021, el Querellado comenzó a ausentarse
de la obra de construcción del muro en la residencia KLRA202300525
de los Querellantes. La Querellante llamó en varias
ocasiones al Querellado, quien le informaba que iría el
próximo día con su personal, sin embargo, no se
presentaba.
18. Con fecha del 27 de mayo de 2021 los Querellantes le
enviaron una carta al Querellado en la cual le
indicaron que en varias ocasiones lo habían llamado
para saber cuándo continuaría con la construcción del
muro. También le informaban de su preocupación de
su hogar ante la posibilidad del derrumbe del terreno.
La carta le fue enviada a la dirección que las partes
acordaron para notificar cualquier aviso bajo el
contrato de construcción. La cual era la siguiente:
Att. Manuel Clemente Rosado
CLEMBER CORP.
Estancias de Rey 607
Caguas, PR 00725
La carta fue enviada por correo certificado con
acuse y recibo. Sin embargo, la misma no fue
reclamada por el Querellado.
19. El Querellado dejó el proyecto abandonado, con una
fosa profunda, que en la medida que transcurría el
tiempo y por las inclemencias del tiempo se
aposentaba el agua, y ocurrían deslizamientos que
ponían en peligro la estructura de la residencia de los
Querellantes.
20. Al momento del Querellado abandonar la obra había
construido un 75% del muro.
21. El 23 de julio de 2021 los Querellantes radicaron ante
este Departamento la Querella de epígrafe en la cual
solicitaron que el Querellado finalizara los trabajos
para los cuales fue contratado y lo devolviera el dinero
que le pagó. La Querellante se comunicó con el
Querellado luego de presentada la Querella y éste le
informó que no tenía empleados para continuar la
obra.
22. El 12 de agosto de 2021 los Querellante presentaron
una Enmienda a la Querella en donde notificaron que
contrataron los servicios del Sr. Juan Navarro de LLC
Contractor (en lo sucesivo el Sr. Navarro) para
continuar la Obra y solicitaron que el Querellado le
devuelva el dinero que le pagó en adición a los daños
ocasionados por la espera que el Querellado realizara
los trabajos.
23. Los trabajos del Sr. Navarro se hicieron en dos fases. La
primera fase fue la de mitigación con el propósito de evitar
el colapso de la vivienda de los Querellantes ya que había
iniciado la temporada de huracanes y las lluvias podían
provocar deslizamientos de terrenos y la residencia de los
Querellantes colapsar. En la primera fase se estabilizó el
terreno, se rellenó el área de construcción.
24. En la primera fase los Querellantes incurrieron en los
siguientes gastos:
[SEGMENT 17]
Item Descripción Costo
Alquiler de Movimiento $13, 937. 15
equipos de tierra
(sacar la casa
de peligro)
Relleno
camiones $15,610.00
Total $29,547.15 KLRA202300525
25. El 8 de diciembre de 2021, la Querellante hizo un
contrato con el Sr. Navarro para la terminación del
muro. El precio pactado por la mano de obra sin
incluir los materiales fue la cantidad de $20,000.00.
Ese día la Querellante le entregó al Sr. Navarro la
cantidad de $10,000.00 en efectivo como depósito. El
balance pendiente de $10,000.00, la Querellante los
pagó mediante dos pagos de $5,000 cada uno. El
primer pago fue efectuado el día 24 de enero de 2022
y el segundo pago fue efectuado el 3 de marzo de
2022.
26. Como resultado del Querellado abandonar la obra,
dejó los materiales a la intemperie y el varillaje
expuesto sin ningún tipo de protección por lo que el
Sr. Navarro, le cobró a la Querellante la cantidad de
$4,500.00 para la restauración de la obra y de los
materiales que dejaron expuestos.
27. En gastos de materiales y alquiler de equipos para la
segunda fase, la Querellante pagó la cantidad de
$15,985.55, lo cual es producto de las siguientes
partidas:
Fecha Descripción Costo
8-12-2021 Movimiento de $1,500.00
tierra alquiler
digger y
excavadora
9-12-2021 Alquile[r] $1,500.00
digger y
excavadora
15-12-2021 (Steel Services)
Reforcing Steel
(16 quintales
de varilla)
1-13-22 Criollo Ready $950.75
Mix
1-14-2022 Recibo $225.04
1-15-2022 Santana
Comercial
(varilla)
1-17-2022 Criollo Ready $796.11
Mix
1-24-2022 Dos días $1,500.00
alquiler mini-
excavadora
1-25-2022
día mini- $750.00
excavadora
1-28-2022 Criollo Ready $746.49
Mix
2-1-2022 Criollo Ready $548.02
Mix
19-2-2022
día, $1, 900.00
Excavadora,
digger y Rolo
2-3-2023 Alquiler $250.00
Bomba para
tirar concreto
4-3-2022 Alquiler de un $750.00
día y acarreo
TOTAL $15,988.5
28. El 5 de enero de 2022 el Querellado visitó la
residencia de los Querellantes a recoger unos KLRA202300525
materiales de construcción que había dejado entre los
que se encontraban escaleras, andamios, gatos.
29. El 22 de julio de 2022 la Lcda. María I. Ramos
Artunduaga abogada de los Querellantes enmendó la
Querella, para que se incluyera como Querellados al Sr.
Manuel Clemente Rosado, su esposa y la Sociedad de
Bienes Gananciales.
30. La Co-querellada Clember LLC entró en vigencia 28 de
Junio de 2021 como una Compañía de Responsabilidad
Limitada. Por tal razón, al momento de los Querellantes
suscribir el contrato con el Querellado esa corporación no
existía.
31. Para la fecha que los Querellantes contrataron al
Querellado para realizar la construcción del muro en
su residencia, el Querellado no figuraba inscrito en el
Registro de Contratistas de conformidad al Artículo 2
de la Ley Núm. 146 del 10 de agosto de 1995, según
enmendada y el Reglamento para el Registro de
Contratistas (8172) de este Departamento. Para dicha
fecha el Querellado no estaba autorizado a ejercer la
profesión de Contratista de la Construcción ya que no
contaba con una licencia vigente emitida por este
Departamento.[CITATION] (Énfasis nuestro).
De conformidad a lo anterior, la agencia resolvió que “[e]l
Querellado le hizo una falsa representación a los querellantes,
cuando le llevó un contrato para la firma, y ellos partiendo de
la buena fe y creencia firmaron el contrato y emitieron pago a
una corporación inexistente”. (Énfasis nuestro).[CITATION] A su vez,
dictaminó que, a pesar de las múltiples oportunidades brindadas
por los Querellantes, éste incumplió con su obligación al abandonar
las obra. En vista de lo anterior, le ordenó pagar $71,536.10 en
concepto de las siguientes partidas: (1) $29, 547. 15 por trabajos de
mitigación para evitar el colapso de la residencia; (2) $40, 488.95
para finalizar la construcción del muro; y (3) $1,500.00 en
honorarios de abogados.
En desacuerdo, el 4 de septiembre de 2023, el Recurrente
presentó una Solicitud de Reconsideración.[CITATION] En esencia, adujo que
la señora Silva Serrano le comunicó vía telefónicamente que no
regresase a completar la construcción. Añadió que no obra prueba
del expediente que devele que éste conociera sobre la cancelación de
[CITATION] KLRA202300525
su corporación a la fecha en que firmaron contrato. Por tanto,
sostuvo que no actuó de mala fe ni medió dolo de su parte.
Examinados los argumentos esgrimidos, el 8 de septiembre de 2024,
el DACo emitió Resolución en Reconsideración, notificada el 13 de
septiembre de 2023, en la cual declaró No Ha Lugar la aludida
petición.[CITATION]
Inconforme con el dictamen administrativo, el 10 de octubre
de 2023, el señor Clemente Rosado acudió ante nos mediante un
recurso de Revisión Administrativa. En su escrito, presentó los
siguientes señalamientos de error:
DACO cometió error en la apreciación de la prueba y al
determinar que las partes recurridas no tenían conocimiento
de la cotización cuando de las alegaciones 7 y 8 de la Tercera
Querella Enmendada surge que el recurrente les presentó
una cotización y las partes recurridas estuvieron de acuerdo
con la misma.
DACO cometió error en la apreciación de la prueba y al
determinar que la parte recurrente debió presentar evidencia
de que los recurridos firmaron la cotización.
DACO cometió error en la apreciación de la prueba y al
determinar que las recurridos no tenían conocimiento de la
cotización el cual era parte integral del contrato de servicios
firmado por las partes cuando del Exhibit III de los recurridos
surge que la última página se titula “Anejo I cotización”.
DACO cometió error en la apreciación de la prueba y al
determinar que a pesar de que las partes recurridas
aceptaron que recibieron el contrato de servicios con una
página que leía “Anejo I cotización” no recibieron de parte del
recurrente la cotización.
DACO cometió error en la apreciación de la prueba y al
determinar que a las partes suscribir el contrato el
recurrente no incluyó el Anejo I del contrato cuando las
partes recurridas aceptaron que recibieron el contrato con
una hoja que se titulaba “Anejo I cotización” y una persona
prudente y razonable pediría la cotización mencionada en
dicha hoja y en la cláusula primera del contrato, y no
firmaría un contrato incompleto.
DACO cometió error en la apreciación de la prueba y al
determinar que el recurrente sabía que Clember Corp., no
existía como corporación cuando las partes firmaron el
contrato, cuando las partes recurridas no presentaron
prueba del alegado conocimiento del recurrente de la
revocación de la corporación por parte del Departamento de
Estado y cuando el recurrente testificó, sin ser refutado
mediante contra interrogatorio, que desconocía que Clember
Corp., no existía a la fecha de la firma de contrato de obras.
DACO cometió error en la apreciación de la prueba y al
determinar que el recurrente demostró mala fe contractual
cuando representó a una corporación inexistente cuando las
partes recurridas no presentaron prueba del alegado
[SEGMENT 18]
[CITATION] ====== Processed Court Ruling ======
KLRA202300525
conocimiento del recurrente de la revocación de la
corporación por parte del Departamento de Estado y cuando
el recurrente testificó, sin ser refutado mediante contra
interrogatorio, que desconocía que Clember Corp., no existía
a la fecha de la firma de contrato de obras.
DACO cometió error en la apreciación de la prueba y al
determinar que el contrato entre las partes requería de una
orden de cambio para extender el término del contrato
cuando de dicho contrato no surge tal requerimiento para el
contrato ser extendido.
DACO cometió error en la apreciación de la prueba y al
determinar que las fases o tareas 1, 2 y 3 no estaban
terminadas cuando el recurrente requirió los pagos cuando
el recurrente testificó y mostró fotos de las obras realizadas
durante su testimonio, sin ser refutado mediante el contra
interrogatorio o prueba pericial, que dichas fases fueron
completadas.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que en el inciso 11 de la
cotización, que era parte del contrato entre las partes, se
cotizó un protocolo de COVID-19.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que durante la relación
contractual entre les partes en Puerto Rico se había
declarado una pandemia por el virus COVID-19 mediante la
orden ejecutiva 2021-0114.
DACO cometió error en la apreciación de la prueba y al omitir
en les determinaciones de hechos que en el inciso 7 del
contrato entre las partes surge que las partes debían cumplir
con las leyes y regulaciones de salud.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que la co- querellante,
Carmen Silva Serrano, es doctora en medicina.
DACO cometió error en la apreciación de la prueba y al
determinar que el contrato entre las partes requería que el
recurrente le enviara una comunicación por escrito a los
recurridos para extender el término del contrato como
resultado de que sus empleados se hubiesen enfermado con
el virus del COVID-19.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que la doctora en medicina
y co-querellante, Carmen Silva Serrano, admitió que tenía
conocimiento de que para el mes de febrero y marzo de 2021
si una persona sospechaba que tenía COVID-19, o estuvo
expuesta alguien tenía el virus o tenía síntomas, el gobierno
ordenó mediante orden ejecutiva 2021-0114 que esa persona
debía permanecer en cuarentena catorce (14) días.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que la doctore en medicina
y co -querellante, Carmen Silva Serrano, admitió que para el
mes de febrero y marzo de 2021 la página 5 de la orden
ejecutiva 2021-0114 establecía que el propósito de la
cuarentena es mantener a una persona que pudo haber
estado expuesta al virus alejada de otras personas y que
debía permanecer en su residencia.
DACO cometió error en la apreciación de la prueba y al omitir
en les determinaciones de hechos que la doctora en medicina
y co -querellante, Carmen Silva Serrano, admitió que
conforme a la orden ejecutiva 2021-0114 existía para el mes
de febrero y marzo de 2021 una orden de aislamiento que
establecía que una persona que haya dado positivo a COVID- KLRA202300525
19 debía estar en asilamiento físico por un mínimo de 10
días.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que el recurrente le
informó luego del 9 de febrero de 2021 a la doctora en
medicina y co-querellante, Carmen Silva Serrano, que varios
de sus empleados habían contraído el virus del COVID-19 y
que las obras de construcción se suspendían hasta que sus
empleados se recuperaban.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que el recurrente y sus
empleados se ausentaron desde luego del 9 de febrero de
2021 hasta mediados del mes de marzo 2021 a trabajar en
la obra contratada por las partes recurridos a causa de que
empelados del recurrente se contagiaron con el virus del
COVID-19 y el recurrente en cumplimiento con la orden
ejecutiva 2021-0114, el inciso 7 del contrato entras las
partes y el protocolo de COVID-19 (que surge de la cotización
que es parte del contrato entre las partes), ordenó a sus
empleados a estar en cuarentena para evitar la propagación
de dicho virus.
DACO cometió error en la apreciación de la prueba y al
realizar la determinación de hecho número 17.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que conforme al inciso
número 14 del contrato entre las partes los días perdidos o
que no se pudiera trabajar en la obra contratada por causa
de lluvia, serían considerados una extensión de tiempo para
finalizar la obra.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que tanto los recurridos
como los empleados del recurrente, tuvieron que colocar
carpas sobre la construcción en los meses de marzo, abril,
mayo y junio de 2021 para evitar que las lluvias afectaran la
obra.
DACO cometió error en la apreciación de la prueba y al omitir
en les determinaciones de hechos que la co-querellante,
Carmen Silva Serrano, aceptó que para los meses de marzo,
abril, mayo, junio del año 2021 hubo episodios de lluvia
sobre la obra de construcción y dicho testimonio fue
corroborado por el recurrente.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que el recurrente y sus
empelados trabajaron en la obra los meses de marzo, abril,
mayo, junio del año 2021 cuando no hubo episodios de
lluvia.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que el recurrente y sus
empleados se ausentaron a la construcción de la obra
durante episodios de lluvias y que conforme al inciso número
14 del contrato entre las partes el tiempo para finalizar la
obra se extendió.
DACO cometió error en la apreciación de la prueba y al
realizar la determinación número 19.
DACO cometió error en la apreciación de la prueba y al omitir
en las determinaciones de hechos que la querella fue
presentada en DACO el 23 de julio de 2021 y la co-
querellante, Carmen Silva Serrano, en conversación
telefónica con el recurrente el 28 de julio de 2021 le dijo a
este que no fuera más por su casa a trabajar en la obra. KLRA202300525
DACO cometió error en la apreciación de la prueba y al
realizar la determinación de hecho número 20 pues el
recurrente no abandonó la obra contratada, fue la co-
querellante, Carmen Silva Serrano, en conversación
telefónica con el recurrente el 28 de julio de 2021 quien le
dijo a este que no fuera más por su casa a trabajar en la
obra.
DACO cometió error en la apreciación de la prueba y al
realizar la determinación de hecho número 26 pues el
recurrente no abandonó la obra contratada, fue la co-
querellante, Carmen Silva Serrano, en conversación
telefónica con el querellado el 28 de julio de 2021 quien le
dijo a este que no fuera más por su casa a trabajar en la
obra.
DACO cometió error en la apreciación de la prueba y al
realizar la determinación de hecho número 27 pues omitió
incluir que el recurrente pudo entrar a la residencia de los
recurridos el 5 de enero de 2022 porque previamente la co-
querellante, Carmen Silva Serrano, le autorizó al primero la
entrada a su residencia a recoger sus materiales.
DACO cometió error en la apreciación de la prueba al omitir
en las determinaciones de hechos que desde que la co-
querellante, Carmen Silva Serrano, en conversación
telefónica con el querellado el 28 de julio de 2021 le dijo a
este que no fue más por su casa, le autorizó por primera vez
al recurrente entrar a la residencia el 5 de enero de 2022 a
recoger sus materiales.
DACO cometió error al no incluir en la parte dispositiva que
se declaraba No Ha Lugar la querella presentada contra la
esposa del recurrente, Myriam Cecilia Bernier Rodríguez a
pesar de haber determinado como un hecho que entre el
recurrente y su esposa rige la total separación de bienes
mediante escritura de capitulaciones matrimoniales del 2 de
mayo de 2007.
[SEGMENT 19]
El 16 de octubre emitimos Resolución otorgamos a la parte
recurrida hasta el 9 de noviembre de 2023 para exponer su posición.
Posteriormente, el 20 de octubre de 2023, ordenamos al Recurrente
por virtud de Resolución a presentar la transcripción de la prueba
oral estipulada dentro del término de treinta (30) días e informar si
presentaría alegato suplementario.
En vista de lo anterior, el 17 de noviembre de 2023, el señor
Clemente Rosado presentóescrito intitulado Solicitud Prórroga para
Presentar la Transcripción Oral. Evaluada su petición, el 27 de
noviembre de 2023, este Tribunal emitió Resolución en la cual
concedió la prórroga.
Nuevamente, el 26 de enero de 2024, el Recurrente presentó
una Urgente Segunda Solicitud de Prórroga para Presentar la
Transcripción Oral. Tras examinar su solicitud, el 29 de enero de KLRA202300525
2024, esta Curia emitió Resolución, notificada el 30 de noviembre de
2024, concediendo un término improrrogable a vencer el 15 de
febrero de 2024. A su vez, notificamos que de no comparecer dentro
del término referido impondríamos severas sanciones.
Luego de ciertos trámites procesales que son innecesarios
pormenorizar, el 20 de febrero de 2024, esta Curia emitió Resolución
ordenando al Recurrente a cumplir con lo dictaminado el 15 de
febrero de 2024. Estipulada y acogida la transcripción ordenamos
al Recurrente a informar en un término de tres (3) días si presentará
alegato suplementario. En respuesta, el 1 de marzo de 2024, el
Recurrente presentó una Moción en Cumplimiento de Orden en la
cual notificó que presentaría el alegato aludido.
Posterior a innumerables trámites procesales, el 21 de marzo
de 2024, el Recurrente presentó su Alegato Suplementario. En éste,
reiteró sus previos señalamientos de error vinculados con la
apreciación de la prueba. En síntesis, refutó la inadmisión del Anejo
I de Cotización. De igual modo, arguyó que la parte recurrida no
presentó prueba de la alegada intención de defraudar a los
recurridos. Adujo, además, que las fases de construcción se
paralizaron por los acontecimientos climatológicos y el COVID-19.
Asimismo, aseveró que no finalizó la obra, pues la señora Silva
Serrano le instruyó no regresar a trabajar.
Por su parte, el 26 de marzo de 2024, los Recurridos
presentaron su Oposición a Apelación y la Réplica a Alegato
Supletorio. En esta última, señalaron que el DACo admitió el Anejo I
de Cotización como prueba de refutación a favor de la Recurrente.
Además, enfatizaron que en la vista del 30 de marzo de 2023 se
estableció que dicho documento no contenía las iniciales de los
querellantes. Asimismo, puntualizaron que la parte recurrente
declaró que no completó la obra, porque no tenía dinero. KLRA202300525
Con el beneficio de la comparecencia de ambas partes,
exponemos la normativa jurídica aplicable al caso de autos.
II.
A. Facultades adjudicativas del Departamento de Asuntos del
Consumidor
La Ley Orgánica del Departamento de Asuntos del
Consumidor, Ley Núm. 5 del 23 de abril de 1973, 3 LPRA sec. 341
(Ley Núm. 5), según enmendada, faculta a la agencia a “adjudicar
las querellas que se traigan ante su consideración y conceder los
remedios pertinentes conforme a derecho”. 3 LPRA sec. 341e(d).
Véase, además, [CITATION]. A esos fines, el DACo tiene el deber
de velar por el cumplimiento de todas las leyes relacionadas con los
derechos de los consumidores. 3 LPRA sec. 341e(d).
Entre otros extremos, el Artículo 6 de la Ley Núm. 5, supra,
delimita los poderes delegados al referido organismo administrativo:
(c) Atender, investigar y resolver las quejas y querellas
presentadas por los consumidores de bienes y servicios
adquiridos o recibidos del sector privado de la economía.
Cuando declare con lugar una querella, el Secretario
ordenará al querellado perdidoso que haya procedido con
temeridad que pague total o parcialmente los gastos
incurridos por el Departamento en su tramitación. El
Secretario dispondrá por reglamento los cargos por concepto
de gastos que deberá pagar el querellado perdidoso.
(d) Poner en vigor, implementar y vindicar los derechos de los
consumidores, tal como están contenidos en todas las leyes
vigentes, a través de una estructura de adjudicación
administrativa con plenos poderes para adjudicar las
querellas que se traigan ante su consideración y conceder
los remedios aptos conforme a derecho, disponiéndose que
las facultades conferidas en este inciso podrá delegarlas el
Secretario en aquel funcionario que él entienda cualificado
para ejercer dichas funciones.
[…]
(g) Establecer las reglas y normas necesarias para la
conducción de los procedimientos administrativos, tanto de
reglamentación como de adjudicación, que celebre el
Departamento. 3 LPRA sec. 341e.
En virtud de la precitada ley, el DACo adoptó el Reglamento
de Procedimientos Adjudicativos, Reglamento 8034, 13 de junio de
2011 (Reglamento 8034). Dicho cuerpo regulador procura “la KLRA202300525
solución justa, rápida y económica de las querellas presentadas
ante o por el Departamento y proveer un procedimiento
uniforme”. [CITATION]. (Énfasis nuestro).
Su aplicabilidad se extiende a “las investigaciones y los
procedimientos administrativos sobre querellas iniciadas por
consumidores, o por el Departamento”. [CITATION]. De igual modo, estas reglas aplican a los procesos
adjudicativos impuestos por nueva legislación, exceptuando los
términos para llevar a cabo el proceso adjudicativo cuando alguna
Ley establece términos distintos, los cuales el Departamento debe
adoptar. [CITATION].
En lo concerniente, la [CITATION] establece el procedimiento
para presentar una querella ante el DACo:
Toda querella se inicia y consulta del querellante o del
personal del Departamento, donde se expresan los hechos
que motivan la reclamación. El Departamento asesorará al
querellante sobre los documentos necesarios para radicar la
querella. [CITATION].
Respecto a este procedimiento, la [CITATION] preceptúa la definición
atinente a Querella:
Reclamación presentada por un consumidor o su
representante autorizado solicitando que le sea reconocido
un derecho y concedido un remedio. En adición, es una
acción iniciada por el Departamento, para hacer cumplir las
leyes y reglamentos, e imponer multas o sanciones. [CITATION].
En tales escenarios, el DACo ostenta facultad para celebrar vistas
administrativas. A esos fines, la [CITATION],
supra, dispone que “[l]as vistas administrativas serán celebradas en
la Oficina Regional a tenor con la [CITATION]”.
Asimismo, en dicho procedimiento es permisible la presentación de
material probatorio:
Las partes podrán presentar aquella evidencia documental y
testifical incluyendo evidencia de carácter técnico y pericial.
El oficial examinador, el Juez Administrativo, Secretario o
Panel de Jueces, podrán tomar conocimiento administrativo,
a iniciativa propia o a solicitud de parte, sobre aquellos
hechos o circunstancias de interés público que son
conocidas por todas las personas bien informadas; o que son KLRA202300525
susceptibles de determinación inmediata y exacta
recurriendo a fuentes cuya exactitud no puede ser
razonablemente cuestionada. Regla 20.5 de Reglamento
8034, supra.
De conformidad a la Regla 24 del Reglamento 8034, supra, la
aplicación de las Reglas de Evidencia no es estricta:
Las Reglas de Procedimiento Civil y de Evidencian no serán
de estricta aplicación a las vistas administrativas, sino en la
medida en que el Funcionario o Panel de Jueces que presida
la vista o el Departamento estime necesario para llevar a
cabo los fines de la justicia.
Celebrada la vista administrativa, el Juez Administrativo
estará en posición de emitir una resolución que exhiba los siguientes
componentes:
La resolución de la querella en sus méritos contendrá una
relación de la determinación de hechos probados, la cual se
ajustará y tendrá apoyo en el expediente del procedimiento,
conclusiones de derecho, y dispondrá lo que en Derecho
proceda para su ejecución mediante una orden e incluirá los
apercibimientos para solicitar revisión judicial.
[SEGMENT 20]
La determinación agencial deberá estar respaldada en evidencia
sustancial, es decir, “evidencia relevante que una mente razonable
podría aceptar como adecuada para sostener una conclusión”. Regla
4(i), Reglamento 8034, supra. Además, incluirá la correspondiente
concesión de remedios:
Toda resolución otorgará el remedio que en derecho proceda
aun cuando la parte querellante no lo haya solicitado.
Cuando el remedio otorgado sea una orden de hacer o
cumplir con un acto determinador deberá contener, (1)
cuando surja del expediente o (2) cuando se pueda tener
conocimiento administrativo, el importe o valor monetario de
la orden, para que en la alternativa de no cumplir con la
misma, la parte obligada compense monetariamente. Regla
27.1, Reglamento 8034, supra.
También, se “podrá imponer a la parte perdidosa el pago de
costas y honorarios de abogados”. Regla 27.3, Reglamento 8034,
supra.
B. La figura de la buena fe y las obligaciones contractuales
El Artículo 1206 del Código Civil de Puerto Rico de 1930,[CITATION]
dispone que “[e]l contrato existe desde que una o varias personas KLRA202300525
consienten en obligarse respecto de otra u otras, a dar alguna cosa,
o prestar algún servicio.” 31 LPRA ant. sec. 3371. Las obligaciones
que nacen de los contratos serán ley entre las partes, quienes
estarán obligadas a cumplir con éstos. Artículo 1044 del Código
Civil, 31 LPRA ant. sec. 2994. Dicha normativa contractual se rige
“por los principios de la autonomía de la voluntad y pacta sunt
servanda”. [CITATION]. Esta
autonomía está estrechamente entrelazada con el principio de la
buena fe contractual. [CITATION].
La buena fe es generadora de deberes y de un marco ético-
moral exigible en todas las etapas de la relación contractual. [CITATION]. En
armonía con lo anterior, el Artículo 1210 del Código Civil, supra,
alude a este principio cardinal:
Los contratos se perfeccionan por el mero consentimiento, y
desde entonces obligan, no sólo al cumplimiento de lo
expresamente pactado, sino también a todas las
consecuencias que según su naturaleza sean conformes a la
buena fe, al uso y a la ley. 31 LPRA ant. 3375
Por tanto, la obligatoriedad de los contratos no se limitada a lo
pactado propiamente en dicho acuerdo, “sino que abarca todas las
consecuencias que según su naturaleza sean conformes a la
buena fe, al uso y a la ley”. [CITATION]. (Énfasis nuestro).
A la luz de tales principios, el Artículo 1217 del Código Civil
dispone que “[s]erá nulo el consentimiento prestado por error,
violencia, intimidación o dolo”. Como consecuencia, quedan sujetos
a la indemnización de daños y perjuicios, quienes en cumplimiento
de sus obligaciones incurrieren en dolo, negligencia o morosidad, y
2020, 31 LPRA sec. 5311. No obstante, puntualizamos que los hechos que dan
lugar a la presente reclamación surgen el 23 de noviembre de 2020, previo a la
aprobación del Código Civil de 2020. En vista de lo anterior, aplicaremos las
disposiciones del derogado Código Civil de1930. KLRA202300525
los que de cualquier modo contravinieren al tenor de aquéllas. 31
LPRA ant. sec. 3018.
De igual modo, existen alternativas para atender aquellos
escenarios provocados por el incumplimiento de obligaciones de
naturaleza recíprocas. Recordemos, pues, que los contratos son
“negocios jurídicos bilaterales y, en nuestro ordenamiento,
constituyen una de las varias formas en que las personas pueden
obligarse entre sí”. [CITATION] Ante el incumplimiento de una parte, el Artículo 1077 del
Código Civil, supra, provee los siguientes mecanismos:
La facultad de resolver las obligaciones se entiende implícita
en las recíprocas, para el caso de que uno de los obligados
no cumpliere lo que le incumbe.
El perjudicado podrá escoger entre exigir el cumplimiento o
la resolución de la obligación, con el resarcimiento de daños
y abono de intereses en ambos casos. También podrá pedir
la resolución, aun después de haber optado por el
cumplimiento, cuando éste resultare imposible.
El tribunal decretará la resolución que se reclame, a no
haber causas justificadas que le autoricen para señalar
plazo. 31 LPRA ant. sec. 3052.
En lo atinente, el Tribunal Supremo de Puerto Rico estableció
la siguiente interpretación jurisprudencial:
Ante el incumplimiento de la otra parte, el perjudicado puede
exigir el cumplimiento de la obligación en la forma
específicamente debida o la resolución del mismo;4 solicitar
el cumplimiento mediante la obtención del equivalente
económico de la prestación debida y, a la vez, pedir la
indemnización de daños y perjuicios resultantes de la
repercusión del incumplimiento en su patrimonio. [CITATION]
Lo anterior implica que “si uno de los contratantes incumple, el otro
puede darlo por resuelto sin necesidad de que un tribunal así lo
declare”. [CITATION]
C. El contrato de arrendamiento de obras y servicios
El Artículo 1434 del Código Civil de Puerto Rico, 31 LPRA ant.
sec. 4013, establece que “[e]n el arrendamiento de obras o servicios, KLRA202300525
una de las partes se obliga a ejecutar una obra, o a prestar a la otra
un servicio por precio cierto”. Sobre este tipo de contrato, el Tribunal
Supremo de Puerto Rico distingue la particularidad de un contrato
de obra y un contrato de servicio:
En el contrato de obras se promete un resultado [la obra
hecha] con independencia del trabajo ... necesario para
realizarlo; y en el segundo [el de servicios] se promete la
prestación de los servicios en sí mismos —el dedicarse ... a
las labores domésticas, por ejemplo— con independencia del
resultado (de la cantidad de obra o de tarea) que con él se
haya concluido [CITATION], citando M. Albaladejo, Curso de
Derecho Civil español común y foral, Barcelona, Librería
Bosch, 1977, T. II, págs. 450–451.
En el contrato de obra, “[e]l contratista viene obligado a
ejecutar la obra conforme a lo convenido en el contrato, a las reglas
del arte de la construcción y a los usos o reglas profesionales.” [CITATION]. Por
tratarse el arrendamiento de obras de un contrato bilateral,
consensual y oneroso, el incumplimiento de una parte le da derecho
a la otra a resolver el contrato o a exigir su cumplimiento específico,
más la indemnización por los daños y perjuicios causados.
[CITATION]; Véase, además, Art. 1077 del Código Civil, supra.
D. Vida jurídica de las corporaciones
El Artículo 27 del Código Civil, supra, establece que son
personas jurídicas las corporaciones con personalidad jurídica
reconocida por la ley. 31 LPRA ant. sec. 101. Dicha personalidad
empieza desde el instante mismo, en que con arreglo a derecho,
hubiesen quedado válidamente constituidas. 31 L.P.R.A. ant. sec.
101. En armonía con lo anterior, la Ley General de Corporaciones,
la Ley Núm. 164 de 16 de diciembre de 2009, 14 LPRA sec. 3501(b),
según enmendada, dispone que “las corporaciones podrán
establecerse al amparo de esta Ley para la realización o
promoción de cualquier negocio o propósito lícito, excepto los
proscritos por la Constitución y las leyes del Estado Libre KLRA202300525
Asociado”. (Énfasis nuestro). La precitada ley “es el estatuto
especial por virtud del cual se deben atender los cuestionamientos
relativos a la existencia y vida jurídica de las corporaciones
privadas”. [CITATION]
Cónsono con lo anterior, cualquier persona natural con
capacidad legal o cualquier persona jurídica, por sí o en unión a
otras, podrá incorporar u organizar una corporación al amparo de
esta Ley, mediante la radicación de un certificado de incorporación
ante el Departamento de Estado. 14 LPRA sec. 3501(c). La emisión
del certificado de incorporación por el Secretario de Estado
constituye evidencia prima facie de: (1) otorgamiento y presentación;
(2) cumplimiento de todos los actos necesarios para que el
documento sea efectivo; y (3) cualesquiera otros hechos permitidos
o requeridos en el documento. 14 LPRA sec. 3504.
El Artículo 1.05(a) de la Ley de Corporaciones, supra,
prescribe cuándo inicia la vida jurídica de la corporación:
[SEGMENT 21]
Otorgado y radicado el certificado de incorporación, según lo
dispuesto en el inciso (D) del Artículo 1.03 de esta Ley y
pagados los derechos requeridos por ley, la persona o las
personas que de tal modo se asociaren, sus sucesores y sus
cesionarios, constituirán, a partir de la fecha de dicha
radicación, o de haberse establecido en el certificado de
incorporación, desde una fecha posterior que no exceda de
noventa (90) días, una entidad corporativa con el nombre que
aparezca en el certificado, sujeta a disolución según se
dispone en esta Ley. 14 L.P.R.A. sec. 3505(a).
En [CITATION], el Tribunal Supremo
de Puerto Rico explicó que el término certificado de incorporación
abarca “todos los certificados, acuerdos de fusión o
consolidación, planes de reorganización u otros instrumentos
que sean radicados [...] y que tengan el efecto de enmendar o
suplementar de alguna forma el certificado de incorporación
original de una corporación”. (Énfasis nuestro).
En el contexto de fusión corporativa, el Artículo 10.01 de la
Ley de Corporaciones, supra, dispone que si si el acuerdo fuere así KLRA202300525
adoptado y certificado por cada corporación constituyente, entonces
se radicará en el Departamento de Estado y entrará en vigor, con
arreglo al Artículo 1.03 de esta Ley. [CITATION]. De manera
similar, el referido estatuto permite radicar ante el Departamento de
Estado un certificado de fusión que sea otorgado con arreglo del
Artículo 1.03 de la Ley de Corporaciones. [CITATION].
Debidamente organizada en ley, la corporación ostenta la
facultad para otorgar contratos y garantías e incurrir en
responsabilidades. [CITATION]. A su vez, tiene
capacidad para “[d]emandar y ser demandada bajo su nombre
corporativo en cualquier Tribunal y participar en cualquier
procedimiento judicial, administrativo, de arbitraje o de cualquier
otro género”. [CITATION]. No obstante, “[t]odas las
personas que actúen como corporación sin autoridad para ello,
serán responsables solidariamente de todas las deudas y
obligaciones incurridas o asumidas como resultado de esta
actuación”. [CITATION]. (Énfasis nuestro).
E. Cancelación de incorporación por no rendir informe anual
El Artículo 15.01 de la Ley de Corporaciones, supra, exige el
cumplimiento de rendición de informe:
Toda corporación organizada al amparo de las leyes del
Estado Libre Asociado deberá radicar anualmente en las
oficinas del Departamento de Estado o por Internet no más
tarde del día quince (15) de abril, un informe certificado, bajo
pena de perjurio, conforme al Artículo 1.03 (A) y (B), por un
oficial autorizado, un director o el incorporador. [CITATION].
La inobservancia de este deber implica serias consecuencias sobre
la vida de la entidad corporativa. El Artículo 15.02 de la Ley de
Corporaciones, supra, contempla la imposición de multas
administrativas y penalidades por no radicar el informe:
Si una corporación doméstica dejare de radicar el informe
anual requerido por ley durante dos (2) años consecutivos,
se autoriza al Secretario de Estado a revocar el certificado de
incorporación de tal corporación. Por lo menos sesenta (60)
días antes de revocar el certificado de incorporación, el KLRA202300525
Secretario de Estado notificará a la corporación afectada de
sus intenciones de revocar, enviando una notificación por
correo de tales intenciones al agente residente de tal
corporación según conste en sus archivos.
El Secretario de Estado deberá establecer por reglamento
aquellas otras disposiciones que sean necesarias para
instrumentar el procedimiento de multas administrativas y
otras penalidades que se establece en este Artículo.
Una vez cancelado de pleno derecho el certificado de
incorporación, el Secretario de Estado notificará de
dicha cancelación al Secretario de Hacienda. 14 LPRA sec.
852. (Énfasis nuestro).
F. Estándar de revisión judicial de las determinaciones
administrativas
Como es sabido, “los tribunales apelativos han de conceder
gran deferencia a las decisiones de los organismos administrativos”.
[CITATION]. Las determinaciones
agenciales gozan de experiencia y conocimiento especializado sobre
los asuntos ante su consideración”. [CITATION]. (Citas omitidas).
Por tal razón, los foros judiciales limitan su facultad revisora
a los siguientes aspectos: (1) si el remedio concedido por la agencia
fue apropiado; (2) si las determinaciones de hecho que realizó la
agencia están sostenidas por evidencia sustancial, y (3) si las
conclusiones de derecho fueron correctas. [CITATION]. (Cita omitida).
Ahora bien, la deferencia a las determinaciones agenciales no
es absoluta. No podemos imprimir un sello de corrección a las
determinaciones o interpretaciones administrativas irrazonables,
ilegales o contrarias a derecho. [CITATION]. Por tanto, la deferencia cede cuando:
(1) la decisión no está basada en evidencia sustancial; (2) el
organismo administrativo ha errado en la aplicación o interpretación KLRA202300525
de las leyes o reglamentos;(3) ha mediado una actuación arbitraria,
irrazonable o ilegal, o (4) la actuación administrativa lesiona
derechos constitucionales fundamentales. [CITATION]; Super Asphalt
Pavement, Corp. v. AFI y otro, [CITATION].
A tenor con lo anterior, “la parte que impugna judicialmente
las determinaciones de hechos de una agencia administrativa
tiene el peso prueba para demostrar que éstas no están basadas
en el expediente o que las conclusiones a las que llegó la agencia
son irrazonables”. [CITATION].
Por otro lado, “cuando de conclusiones de derecho se trata, los
tribunales tenemos una amplia facultad de revisarlas completa y
absolutamente”. [CITATION].
A esos fines, la Sección 4.5 de la Ley de Procedimiento
Administrativo, supra, dispone que “[l]as conclusiones de derecho
serán revisables en todos sus aspectos”. Lo anterior “no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo”. [CITATION]. La
determinación de una agencia merece deferencia sustancial aun
cuando su interpretación no sea la única razonable. [CITATION]. Véase, también, [CITATION]. Solo se
sustituye “el criterio de la agencia por el del tribunal revisor cuando
no exista una base racional para explicar la decisión administrativa. KLRA202300525
[CITATION], supra; [CITATION], supra, pág. 591.
III.
Tras evaluar sosegadamente el recurso ante nuestra
consideración, así como la prueba que obra en el expediente y la
transcripción estipulada por las partes, determinamos que el DACo
actuó correctamente. La Resolución recurrida descansa en la
totalidad de la prueba admitida por la agencia y es cónsona al
derecho vigente. Por estar estrechamente relacionados los errores,
pasamos a resolverlos de manera conjunta.10 Veamos.
En el presente caso, el señor Clemente Rosado argumenta que
erró la agencia al concluir que desplegó una conducta de mala fe por
representar una corporación inexistente durante el trámite de
contratación. En específico, contiende que los recurridos debieron
presentar prueba que demostrara que éste conocía sobre el
certificado de revocación de incorporación.
No encontramos criterios jurídicos para acoger dicho
señalamiento de error. Durante la celebración de las vistas
administrativas, la parte recurrida presentó amplia prueba
documental y oral que contradice el argumento esbozado por el
Recurrente. En específico, destacamos que éste admitió que no
radicó el informe anual corporativo requerido por el Departamento
de Estado:
LCDA. RAMOS: Volvemos y repetimos la ca, la pregunta. Le
pregunto desde su creación Clember Corp. no radicó sus
informes anuales en el Departamento de Estado. ¿Sí o no?
¿No se radicó?
SR. MANUEL CLEMENTE: Yo tenía un contable que se
encargaba de eso.
LCDA. RAMOS: ¿Sí o no? ¿No se radicó?
10 Debido a que el Recurrente presentó treinta y tres señalamientos de error -con
argumentos repetitivos- hemos decidido atender los mismos mediante las
siguientes temáticas: (1) la inexistencia de la corporación, (2) la admisión del Anejo
I de Cotización (3) la extensión del término, (3) las inclemencias del tiempo, (4) la
pandemia del COVID-19, (5) el abandono de la obra y (6) la separación de bienes
de conformidad a la escritura de Capitulaciones Matrimoniales. KLRA202300525
[SEGMENT 22]
SR. MANUEL CLEMENTE: Pues no sé. No. (Énfasis
nuestro). [CITATION]
Cónsono con la declaración testimonial precitada, el DACo
admitió como Exhibit el Certificado de Revocación del Certificado de
Incorporación expedido por el Departamento de Estado:
CERTIFICO: Que “CLEMBAR CORP”, registro número
401096, ha sido cancelada según lo establece la Ley
General de Corporaciones, el 31 de diciembre de 2019 a
las 12:00 AM. (Énfasis nuestro). [CITATION]
A la luz de lo anterior, resulta evidente que el Recurrente
conocía sobre el estado de inexistencia de su corporación. Ante tal
realidad, se limitó a testificar que la aludida corporación fue
fusionada con Clember LLC:
LCDO. QUINTERO: ¿Caballero qué es Clember Corp?
SR. MANUEL CLEMENTE: Clember Corp. es una compañía
que yo presidía la cual fusionamos con Clember, LLC.
LCDO. QUINTERO: ¿Clember Corp. de cuándo estuvo activa?
SR. MANUEL CLMENTE: Estuvo activa aproximadamente
como unos tres años y medio.
LCDO. QUINTERO: ¿Recuerda cuándo comenzó Clember,
Corp? Más o menos no tiene que ser exacto.
SR. MANUEL CLEMENTE: Ah, como el veinte diecisiete,
veinte dieciocho por ahí.
LCDO. QUINTERO: Okay. Y dijo usted que ahora está
fusionada.
SR. MANUEL CLEMENTE: Está fusionada con Clember,
LLC. [CITATION]
Sin embargo, dicha argumentación solo descansó en su
testimonio, por tanto, no mereció credibilidad del Juez
Administrativo. Cónsono con lo antes expuesto, el Recurrente no
presentó prueba del certificado de incorporación o el acuerdo de
fusión corporativa. En vista de ello, no contamos con los elementos
probatorios necesarios para disponer que las partes contrajeron un
contrato con entidad corporativa fusionada. Por tanto, resolvemos
que el señor Clemente Rosado pactó una obligación contractual
en representación de una corporación inexistente. Tal
[CITATION] KLRA202300525
actuación es contraria a la buena fe contractual imperante en
nuestro ordenamiento jurídico, que procura la honestidad y la
lealtad entre las partes. En efecto, responde en el plano personal
ante la reclamación administrativa presentada en su contra.
(Énfasis nuestro).
Por otro lado, el Recurrente alega que incidió DACo al no
admitir en evidencia el Anejo I de la Cotización, toda vez que dicho
documento es parte integral del contrato. Asevera que la admisión
del Anejo I es importante porque recoge el contenido relacionado al
protocolo del COVID-19 que los querellantes incumplieron.
Por su parte, los Recurridos puntualizan que la parte
recurrente nunca señaló que el contrato estaba incompleto.
Advierten que presentó sorpresivamente el documento en cuestión
en el periodo de las vistas administrativas. No obstante, especifican
que el DACo admitió la cotización como prueba de refutación. En lo
pertinente, esbozamos el testimonio de la señora Silva Serrano,
quien declaró que no tenía conocimiento acerca del Anejo I:
SRA. CARMEN SILVA: Este documento no lo había visto.
LCDO. QUINTERO: Préstemelo acá. Este no fue la cotización
que le presentó su abogada cuando usted testificó el primer
día al que usted hizo referencia varias veces.
LCDA. RAMOS: Objetamos.
SRA. CARMEN SILVA: No.
LCDO. QUINTERO: No. ¿Usted nunca ha visto este
documento?
SRA. CARMEN SILVA: Nunca lo he visto hasta ahora.[CITATION]
Luego de un amplio debate, el Juez Administrativo limitó la
presentación del referido documento como prueba de refutación a
favor del querellado.[CITATION] Eventualmente, en la vista del 4 de mayo de
2023, resolvió que los Recurridos no estamparon sus iniciales en el
Anejo I, el cual se encuentra en blanco:
JUEZ: No. No, pero para aclarar el asunto. Mire yo, en
el expediente obra el contrato original, aunque se tiene como
Exhibit una copia. En el expediente está el contrato original,
[CITATION] KLRA202300525
aunque se tiene como Exhibit solo una copia. En el
expediente está el contrato original que suscribieron las
partes, tiene una, está timbrado en colores, Clember
Corporation en colores del veintitrés de noviembre del veinte
veinte en la ciudad de Las Piedras. Cada una de las hojas
tienen las iniciales del contrato que obra aquí, cuatro, cinco
donde en la número seis dice en la siguiente tabla
encontraremos las tareas y descripciones. Cinco, seis, siete,
tiene la firma de las partes. Y ocho la cotización está en
blanco, en ninguna de las partes inició. O sea, si se va a
hacer referencia a una cotización pues yo creo que en el
contrato tiene que aparecer un papel donde causa una de
las partes haya iniciado como aceptado o presentó.
LCDO. QUINTERO: Señoría, estaremos pidiendo la objeción
el, tenemos.
JUEZ: Y le adelantamos hasta el día, que al día de hoy,
eh, ni en las contestaciones, ni en ningún escrito esa,
esa, se incluyó esa, esa se incluyó esa, esa cotización que
está en blanco. Porque entiendo que la página doce, en la
página del contrato tiene, tiene detallado lo, las tareas que
se iban a hacer a la firma, como bien explicó el querellado
eh, tenía un costo de veintisiete mil quinientos dólares que
había que entregarle para empezar la obra porque no era un
contrato que él asumía, sino que por fase me imagino cada
vez que había una fase se certificaba, este mire terminé eh,
fundido el cimiento que era un quince por ciento, porque
establecieron los hasta los porciento. Terminé, eh, tienen que
pagarme otro para yo seguir tirando la siguiente fase. Esto
es lo que está en el contrato. Adelante compañero.[CITATION]
Expuesto lo anterior, reiteramos que el juzgador de los hechos
emitió un análisis probatorio a la luz de los documentos que obran
en el expediente. No obstante, concedió el valor probatorio que
correspondía al Anejo I presentado de conformidad a las
declaraciones testificales y los argumentos debidamente atendidos.
Así concluyó acertadamente que los Recurridos no estamparon
su iniciales en el documento en controversia y que éste se
encontraba en blanco. (Énfasis nuestro).
En torno al incumplimiento contractual, el señor Clemente
Rosado aduce que no concluyó las labores pactadas, porque la
señora Silva Serrano le solicitó que no regresara a trabajar. Indicó,
además, que sus empleados se ausentaron por los continuos
episodios de lluvias y la pandemia del COVID-19. También, alega
que la parte recurrida extendió el plazo de la obra.
[CITATION] KLRA202300525
Hemos revisado el material probatorio del expediente, sin
embargo, no encontramos elementos para sustentar tales
aseveraciones. A esos fines, resaltamos las siguientes cláusulas
establecidas en el Contrato de Servicio:
. Vigencia del Contrato: El contrato estará vigente desde la
fecha de su ejecución hasta tanto se complete el proyecto de
remodelación y construcción y el mismo sea aprobado por el
Cliente una vez culminado, salvo que una de las partes
termine el Contrato con anterioridad a ello. El término de
este contrato podrá ser extendido bajo consentimiento
escrito de ambas partes.
Cláusula de Penalidad: La cotización realizada por
CLEMBER a el [sic] cliente indica que el proyecto se realizará
dentro de 18 semanas. Si el proyecto se atrasa sin que medie
justa causa, CLEMBER deberá pagarle a el [sic] Cliente
$20.00 diarios por cada atraso.17
[…]
14. Eventualidades de Incumplimiento: Las siguientes
eventualidades se considerarán como incumplimiento bajo el
presente contrato:
El incumplimiento de CLEMBER a los términos de este
contrato, si dicho incumplimiento no ha sido subsanado
durante los quince (15) días calendarios siguiente, debe
habérsele notificado a la Sra. Carmen Silva Serrano.
El incumplimiento de el [sic] Cliente a los términos de este
contrato, si dicho incumplimiento no ha sido subsanado
durante los quince (15) días calendarios siguiente, debe
habérsele notificado a CLEMBER.
De tener días perdidos por lluvias serán considerados
para la extensión de tiempo de este contrato.
15. Terminación: De CLEMBER incurrir en
Incumplimiento de una de sus obligaciones bajo este
Contrato, y luego de transcurridos los 15 para que
subsane dicho incumplimiento, el Cliente podrá terminar
automáticamente este Contrato. (Énfasis nuestro). 18
[SEGMENT 23]
No se desprende del expediente ante nuestra
consideración, que el término de la obra se haya extendido bajo
consentimiento escrito de ambas partes, tal como prescribe la
cláusulas contractual cuatro (4). (Énfasis nuestro). Tampoco
advertimos prueba que demuestre que el trabajo se paralizó por
acontecimientos climatológicos o por la situación del COVID-19. En
particular, destacamos que la señora Silva Serrano testificó que el
Recurrente no le notificó que sus empleados enfrentaban problemas
de COVID-19:
17 Apéndice de los Recurridos, pág. 18.
18 Apéndice de los Recurridos, pág. 20. KLRA202300525
LCDO. QUINTERO: ¿Dama en el mes de febrero del dos mil
veintiuno le informó a usted que varios de sus empleados
habían contraído COVID, sí o no?
SRA. CARMEN SILVA: No.
LCDO. QUINTERO: ¿Usted reitera que fue uno?
SRA. CARMEN SILVA: Uno solo.
LCDO, QUINTERO: Okay. ¿Le pregunto mire a ver si en
febrero del dos mil veintiuno el señor Manuel Clemente le
informó a usted que las obras de construcción se suspendían
hasta que sus empleados se recuperaran del COVID-19, sí o
no? Pues dama sim e permite terminar la pregunta puedo
escuchar su contestación. ¿Mire a ver si en febrero del dos
mil veintiuno Manuel Clemente le informó a usted que las
obras de construcción se suspendían hasta que empleados
suyos se recuperaran del COVID-19, sí o no?
SRA. CARMEN SILVA: No.
LCDO. QUINTERO ¿Dama le pregunto si en marzo del dos
mil veintiuno el señor Manuel Clemente le informó a usted
que todavía los empleados de él no se habían recuperado del
COVID-19, sí o no?
SRA. CARMEN SILVA: No.[CITATION]
Según el testimonio de la parte recurrente, los empleados se
ausentaban de manera prolongada:
SRA. CARMEN SILVA: Es que fueron y vinieron. Iban y
venían, pero se ausentaban por periodos largos. Pero el
último día de todo el trabajo fue el 28 de julio de 2021.[CITATION]
De hecho, diligentemente cursó una carta al Recurrente en la cual
aludió a las previas conversaciones telefónicas relacionadas con al
estado de la obra. En lo atinente, esbozamos el siguiente contenido:
de mayo de 2021
Estimado Sr. Clemente:
Por medio de la presente le expongo amablemente mi
preocupación en relación al muro. Vez tras vez le he llamado
para preguntarle cuándo continuará con la construcción del
muro. Cómo [sic] en las llamadas del 22 de marzo de, 27 y
de abril entre otras.
En dichas llamadas le he pedido que me complete la
construcción del muro como se ha acordado. Me ha
prometido seguidamente que las próximas semanas seguirá
el trabajo hasta terminarlo. Al día de hoy no me ha cumplido
con el acuerdo establecido. Antes bien los materiales de
construcción se encuentran en total abandono entre el pasto
causándome dificultad en la poda.
No se ha preocupado por la condición de mi hogar en peligro
de derrumbe del terreno “posibilidad real”. Como es de su
conocimiento el terreno no es del todo firme y estamos frente
a la época de huracanes, mi mayor preocupación.
En vista de los hechos le comunico por escrito las
circunstancias presentes. La cual deberá ser contestada en
[CITATION] KLRA202300525
un término de cinco días a partir de recibir la misma. De lo
contrario, el contrato se dará por terminado.
Cordialmente,
Carmen Silva Serrano & Raúl Márquez Cruz [CITATION]
Asimismo, testificó que luego de presentar la Querella
administrativa, dialogó vía telefónica con el Recurrente, pero éste le
comunicó que no tenía personal para concluir la obra:
LCDA. RAMOS: ¿Ya sometida la querella, usted tuvo algún
acercamiento al señor Clemente para completar la obra?
SRA. CARMEN SILVA: Eh, sí. En esa, en esa llamada que me
hizo, que me gritó por teléfono cuando yo lo pedí que, eh, la
obra tenía que completarla. Él me dijo que ya no tenía
personas para trabajar, que no podía terminar la obra. [CITATION]
Por cierto, tal testimonio es consistente con la versión
testimonial que presentó el señor Clemente Rosado, quien reconoció
que no terminó la obra por falta de dinero:
LCDA. RAMOS: ¿Lo cierto es que usted no pudo terminar la
obra porque ya no tenía dinero para terminarla verdad?
SR. MANUEL CLEMENTE: Bueno.
LCDA. RAMOS: ¿Sí o no?
SR. MANUEL CLEMENTE: Pues sí. [CITATION]
En vista de lo anterior, nos resulta forzoso concluir que la
parte recurrente incumplió con el acuerdo contractual. A pesar de
que alude a eventualidades climatológicas y a la pandemia, no nos
posiciona a la luz de la prueba presentada para resolver que su
incumplimiento es producto es tales sucesos. No surge del
expediente que haya notificada a la parte recurrida sobre dichas
circunstancias, tal como exige el contrato. Más bien, desplegó un
patrón de indiligencia, que provocó serios problemas sobre la
seguridad de los recurridos y múltiples gastos económicos.
Por motivo del abandono de la obra, el 8 de diciembre de 2021
la parte recurrida formalizó un Contrato con el señor Juan Navarro
para completar las fases restantes de la obra inacabada. [CITATION] Este otro
[CITATION] KLRA202300525
acuerdo requirió que las partes incurrieran en un gasto adicional de
$10,000.00 en aras de resolver el problema ocasionado por el
incumplimiento contractual del querellado.
Por último, la parte recurrente alega que incidió el DACo al no
incluir en la parte dispositiva de la Resolución una declaración de
No Ha Lugar en cuento la reclamación presentada en contra de
Myriam Cecilia Bernier, quien es esposa de la parte recurrente. No
obstante, hacemos constar y destacamos que la agencia recurrida
admitió como Exhibit 1 las Capitulaciones Matrimoniales otorgadas
entre la parte recurrente y su esposa. Por lo anterior, formuló la
determinación de hechos número tres (3):
. El Sr. Manuel Clemente Rosado, es una persona mayor
de edad, contratista de trabajos de construcción, casado
con Myriam Cecilia Bernier Rodríguez bajo el régimen de
Capitulaciones Matrimoniales, la cuales fueron otorgada
el 26 de mayo de 2007, ante el notario público Adrián
Omar Díaz Díaz.[CITATION]
Reconocido ese hecho, nos limitaremos a especificar que en las
escrituras de Capitulaciones consta la siguiente disposición:
De igual manera estipulan los futuros contrayentes, que toda
y cualquier deuda y obligación que cada uno de ellos
respectivamente tenga antes del matrimonio o contraída
después matrimonio será de la exclusiva responsabilidad
del cónyuge que haya contraído la deuda sin que el otro
cónyuge tenga responsabilidad alguna en tal deuda o
deudas. (Énfasis nuestro). [CITATION]
Por tanto, admitida dicha prueba y formulada la
determinación fáctica precitada, es evidente que el Recurrente
responde en su carácter individual ante la reclamación
administrativa instada en su contra.
A tenor con lo anterior, determinamos que la parte recurrente
no alcanzó a rebatir la presunción de corrección y legalidad que
reviste las determinaciones emitidas por el DACo. La Resolución
recurrida merece nuestra deferencia, pues no es arbitraria,
irrazonable ni caprichosa. Constituye un dictamen cónsono con los
[CITATION] KLRA202300525
preceptos legales aplicables y respaldado en evidencia sustancial
que obra del expediente administrativo.
IV.
Por los fundamentos expuestos, confirmamos la Resolución
recurrida.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
LCDA. LILIA M. OQUENDO SOLÍS
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL XI
LUIS ALBERTO REVISIÓN
VALLEJOS CRUZ ADMINISTRATIVA
procedente de la
Recurrente Oficina de Gerencia
de Permisos
KLRA202400141
V. Caso Núm.: 2024-
[SEGMENT 24]
-SDR-300326
ESTHER RÍOS Sobre:
RODRÍGUEZ CONSTRUCCIÓN
Recurridos
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 26 de abril de 2024.
Comparece ante nos, Luis Alberto Vallejos Cruz (recurrente),
y nos solicita que revisemos la Notificación No Acogiendo Solicitud de
Revisión Administrativa emitida por el Departamento de Desarrollo
Económico, Oficina de Gerencia de Permisos (OGPe o recurrida) el
15 de febrero de 2024. Mediante dicho dictamen, la OGPe denegó
acoger la Solicitud de Revisión Administrativa que presentó el
recurrente ante dicho foro.
Por los fundamentos que expondremos a continuación, se
revoca la Notificación No Acogiendo Solicitud de Revisión
Administrativa que emitió la OGPe.
I.
Surge del expediente ante nuestra consideración que, el 17 de
enero de 2024, la OGPe emitió una Resolución de Consulta de
Construcción en el caso [CITATION]. Ese mismo día,
la Resolución de Consulta de Construcción fue notificada al
recurrente mediante correo postal. Inconforme, el 6 de febrero de
2024, la parte recurrente presentó una Solicitud de Revisión
Número Identificador
SEN2024_________ KLRA202400141
Administrativa. A esos efectos, el recurrente pagó el arancel
requerido para la presentación de la Solicitud de Revisión
Administrativa.
El 15 de febrero de 2024, la OGPe emitió una Notificación No
Acogiendo Solicitud de Revisión Administrativa. En esencia, la OGPe
señaló que la Solicitud de Revisión Administrativa se había
presentado fuera del término jurisdiccional de veinte (20) días.
Aseveró que la determinación objeto de revisión fue emitida el 17 de
enero de 2024, y Solicitud de Revisión Administrativa se presentó el
7 de febrero de 2024.
Insatisfecho aun, el 18 de marzo de 2024, la parte recurrente
acudió ante nos mediante un recurso de revisión judicial, y alegó la
comisión del siguiente error:
Erró la OGPE al decretar la Notificación No
Acogiendo la Solicitud de Revisión Administrativa,
privando así a la parte recurrente de tener su día en
corte y menoscabando el debido proceso de ley.
Examinado el Recurso de Revisión Judicial, este Tribunal
emitió una Resolución el 21 de marzo de 2024, concediéndole un
término de veinte (20) días a la parte recurrida para que expresara
su posición al recurso. El 22 de abril de 2024, la parte recurrida
presentó un Alegato de la Oficina de Gerencia de Permisos al Recurso
de Revisión Judicial. Contando con el beneficio de la comparecencia
de todas las partes procedemos a resolver.
II.
A. Revisión judicial de las determinaciones administrativas
La Ley de Procedimiento Administrativo Uniforme del
Gobierno de Puerto Rico, Ley Núm. 38-2017, según enmendada, (3
LPRA sec. 9601 et seq.) (LPAU), se creó a los fines de uniformar los
procedimientos administrativos ante las agencias.
Consecuentemente, desde la aprobación del procedimiento provisto
por la LPAU, los entes administrativos están precisados a conducir KLRA202400141
sus procesos de reglamentación, adjudicación y concesión de
licencias y permisos de conformidad con los preceptos de este
estatuto y el debido proceso de ley. [CITATION]
La Sección 4.1 de la LPAU, dispone que las decisiones
administrativas finales pueden ser revisadas por el Tribunal de
Apelaciones. (3 LPRA sec. 9671). La finalidad de esta disposición es
delimitar la discreción de los organismos administrativos para
asegurar que estos ejerzan sus funciones conforme a la ley y de
forma razonable. [CITATION] Es decir, la revisión judicial permite a los tribunales
garantizar que las agencias administrativas actúen dentro de los
márgenes de las facultades que le fueron delegadas por ley. [CITATION] A su vez, posibilita el poder constatar que los organismos
administrativos “cumplan con los mandatos constitucionales que
rigen el ejercicio de su función, especialmente con los requisitos del
debido proceso de ley”. Íd. Así, la revisión judicial constituye el
recurso exclusivo para revisar los méritos de una decisión
administrativa sea esta de naturaleza adjudicativa o de naturaleza
informal. [CITATION]
Es norma reiterada que las decisiones de los organismos
administrativos están revestidas de una presunción de regularidad
y corrección, [CITATION] Esto
debido a que, mediante esta norma se reconoce el peritaje del que
gozan los organismos administrativos en aquellas materias que le
han sido delegadas por ley. [CITATION]
====== End of Document ====== KLRA202400141
(2012); [CITATION]
(2012).
Nuestro máximo Foro ha establecido que, al ejercer la revisión
judicial los tribunales no pueden descartar de forma absoluta la
determinación de una agencia, sino que primero tienen que
examinar la totalidad del expediente y determinar si la
interpretación de la agencia representó un ejercicio razonable de su
discreción administrativa, así fundamentado en la pericia particular
de esta, en consideraciones de política pública o en la apreciación
de la prueba. [CITATION]
Cónsono con lo anterior, la sección 4.5 de la LPAU establece
que los tribunales deben sostener las determinaciones de hechos de
las agencias si están basadas en "evidencia sustancial que obra en
el expediente administrativo". (3 LPRA sec. 9675). Como vemos, la
norma anterior nunca ha pretendido ser absoluta. Por eso, el
Tribunal Supremo ha resuelto con igual firmeza que los tribunales
no pueden extender un sello de corrección, so pretexto de
deferencia, a las determinaciones o interpretaciones administrativas
irrazonables, ilegales, o simplemente, contrarias a derecho. [CITATION]
Sin embargo, la citada Sección 4.5 de la LPAU, supra, dispone
que "[l]as conclusiones de derecho serán revisables en todos sus
aspectos por el tribunal". Aun así, se sustituirá el criterio de la
agencia cuando no se pueda hallar fundamento racional que
explique o justifique el dictamen administrativo. [CITATION] Por ende, "los tribunales
deben darle peso y deferencia a las interpretaciones que la agencia
realice de aquellas leyes particulares que administra". Torres Rivera KLRA202400141
v. Policía de PR, [CITATION]. Lo anterior responde a
la vasta experiencia y conocimiento especializado que tienen las
agencias sobre los asuntos que le son encomendados. González
Segarra et al. v. CFSE, [CITATION].
Al revisar las decisiones de las agencias, el criterio rector que
debe guiar a los tribunales es la razonabilidad de la actuación,
aunque ésta no tiene que ser la única o la más razonable. Vargas
Serrano v. Inst. Correccional, [CITATION]. Por lo tanto,
al momento de examinar un dictamen administrativo se determina
que: (1) la decisión administrativa no está basada en evidencia
sustancial; (2) la agencia erró en la aplicación de la ley (3) el
organismo administrativo actuó de manera irrazonable, arbitraria o
ilegalmente; o (4) su actuación lesiona derechos constitucionales
fundamentales, entonces la deferencia hacia los procedimientos
administrativos cede. Empresas Ferrer v. ARPe, supra, pág. 264.
En esta tarea, los foros judiciales analizarán los aspectos
siguientes: (1) si el remedio concedido por la agencia fue apropiado;
(2) si las determinaciones de hecho que realizó la agencia están
sostenidas por evidencia sustancial, y (3) si las conclusiones de
derecho fueron correctas. Asoc. Fcias v. Caribe Specially et al. II, [CITATION]. Mientras que, las determinaciones de hecho
se deben sostener si las mismas se basan en evidencia sustancial
que surja de la totalidad del expediente administrativo, Rolón
Martínez v. Supte. Policía, [CITATION], las
determinaciones de derecho pueden ser revisadas en su totalidad.
Torres Rivera v. Policía de PR, supra, pág. 627.
Si bien es cierto que la revisión judicial no equivale a la
sustitución automática del criterio e interpretación del organismo
administrativo, Rebollo v. Y Motors, [CITATION], los
tribunales revisores descartarán el criterio de los entes KLRA202400141
administrativos cuando "no se pueda hallar fundamento racional
que explique o justifique el dictamen administrativo". [CITATION]
[SEGMENT 25]
Si la interpretación y la aplicación del
derecho no es correcta, el foro apelativo está obligado a intervenir.
[CITATION]
"En esas circunstancias, [el foro apelativo] cederá la deferencia que
merecen las agencias en las aplicaciones e interpretaciones de las
leyes y los reglamentos que administra". [CITATION]
Véase, además,
[CITATION]
B. Ley Núm. 161-2009
Mediante la Ley Núm. 161-2009, conocida como la Ley para
la Reforma del Proceso de Permisos de Puerto Rico, según
enmendada (23 LPRA sec. 9011 et seq.), se crearon varios
organismos destinados a atender los diversos aspectos del proceso
de permisos, entre los cuales está la OGPe. Dicha ley creó la OGPe
como el organismo administrativo encargado de evaluar, aprobar o
denegar las solicitudes ante su consideración. Véase, Exposición de
Motivos de la Ley Núm. 161-2009, supra.
Con relación a la controversia que nos atañe, la Ley Núm. 161-
2009, supra, en su Artículo 11.1 crea la División de Revisiones
Administrativas como un organismo adscrito a la OGPe. (23 LPRA
sec. 9021m). Dicho organismo, tendrá la función de revisar las
actuaciones y determinaciones de la Junta Adjudicativa, la OGPe,
los Profesionales Autorizados y los Municipios Autónomos con
Jerarquía de la I a la V. Íd.
Cónsono con lo anterior, el Artículo 11.6 de la Ley Núm. 161-
2009 (23 LPRA sec. 9021r), establece, entre otras cosas, que:
[u]na parte adversamente afectada por una actuación o
determinación final de la Oficina de Gerencia de Permisos, de la KLRA202400141
Junta Adjudicativa, de los Municipios Autónomos con Jerarquía de
la I a la V o de un Profesional Autorizado, podrá presentar una
solicitud de revisión administrativa ante la División de Revisiones
Administrativas, dentro del término jurisdiccional de veinte (20)
días contados a partir de la fecha de archivo en autos, de copia de
la notificación de la actuación o determinación final […].
III.
En su recurso, la parte recurrente sostiene que erró la OGPe
al decretar la Notificación No Acogiendo la Solicitud de Revisión
Administrativa, privando así a la parte recurrente de tener su día en
corte y menoscabando el debido proceso de ley. Plantea, además,
que la Notificación No Acogiendo la Solicitud de Revisión
Administrativa es una contraria a derecho y menoscaba el debido
proceso de ley.
Por su parte, la parte recurrida señala que el recurrente
presentó una Solicitud de Revisión Administrativa el último día hábil
para presentar la misma, entiéndase, el 6 de febrero de 2024. En
igual fecha, realizó el pago correspondiente de los aranceles.
Expresó que, la parte recurrente diligentemente y con conocimiento
de que existía un problema con el registro del pago del Single
Business Portal, realizó una Solicitud de Ayuda en la plataforma el 7
de febrero de 2024. Así pues, la parte recurrida adujo que no tuvo
conocimiento directo de los problemas que presentó el Single
Business Portal, por lo que al haberse adjudicado el pago de
aranceles pasado el término jurisdiccional se emitió la Notificación
No Acogiendo la Solicitud de Revisión Administrativa.
De una revisión del expediente ante nos, junto a la ley y la
jurisprudencia aplicable podemos colegir que claramente incidió la
parte recurrida al decretar la Notificación No Acogiendo la Solicitud
de Revisión Administrativa por falta de jurisdicción. De conformidad
con los hechos aquí reseñados, ciertamente, la parte recurrente
presentó su Solicitud de Revisión Administrativa dentro del término
jurisdiccional de veinte (20) días. Así pues, fue una falla en la KLRA202400141
plataforma del Single Business Portal lo que no permitió que se
adjudicara correctamente el pago del arancel el 6 de febrero de 2024.
Así, aun con la diligencia desplegada por la parte recurrente al
presentar la Solicitud de Ayuda, la parte recurrida procedió a emitir
arbitrariamente la Notificación No Acogiendo la Solicitud de Revisión
Administrativa.
IV.
Por los fundamentos antes expuestos, se revoca la Notificación
No Acogiendo Solicitud de Revisión Administrativa que emitió la
OGPe. En consecuencia, se devuelve el caso a la parte recurrida para
que evalúe la Solicitud de Revisión Administrativa que presentó la
parte recurrente.
Lo acordó y manda el Tribunal y lo certifica la Secretaría del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL VII
HERNAN A. IRENE REVISION
BERLINGERI ADMINISTRATIVA
Procedente del
Recurrente Departamento del
KLRA202400193 Trabajo y Recursos
v. Humanos
DEPARTAMENTO DEL
TRABAJO Y Civil núm.: AC-22-89
RECURSOS HUMANOS
Recurrida Sobre: DESPIDO
INJUSTIFICADO
Panel integrado por su presidenta la juez Domínguez Irizarry, la juez
Grana Martínez y el juez Pérez Ocasio
Pérez Ocasio, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 23 de abril de 2024.
Comparece ante nos, Hernán Irene Berlingeri, en adelante,
Irene Berlingeri o recurrente, solicitando que revisemos la
“Resolución” emitida por la Oficina de Mediación y Adjudicación del
Departamento del Trabajo y Recursos Humanos, en adelante, OMA
o recurrida. En la resolución recurrida, notificada el 7 de marzo de
2024, el OMA dejó sin efecto la “Resolución y Orden” del 31 de enero
de 2024, mediante la cual había declarado “Ha Lugar” la querella
del recurrente en contra de su patrono, Puerto Rico Pizza, Inc., HNC
Little Caesar’s, en adelante, Little Caesar’s.
Por los fundamentos que expondremos a continuación,
desestimamos el recurso de epígrafe por falta de jurisdicción.
I.
Irene Berlingeri comenzó a trabajar para Little Caesar’s en
agosto del año 2008, hasta el 14 de julio de 2021, cuando fue
despedido. [CITATION] El 10 de febrero de 2022, el OMA reclamó
[CITATION]
Número Identificador
SEN2024___________________ KLRA202400193
extrajudicialmente la suma de $18,495.00 a Little Caesar’s, a favor
del recurrente, por concepto de despido injustificado.[CITATION]
El 10 de mayo de 2022, OMA emitió una “Notificación de
Cesión Inicial de Conciliación o Mediación” para el 17 de mayo de
2022.[CITATION] El 15 de mayo del mismo año, Little Caesar’s notificó que
comparecería por vía telefónica.[CITATION] Sin embargo, el 13 de julio de
2022, Irene Berlingeri presentó una querella contra Little Caesar’s,
ante OMA. La querellada alega que, el 25 de julio de 2022, presentó
su contestación a la misma.[CITATION] El OMA ha sostenido durante el
transcurso del caso de marras que nunca recibió esa contestación.[CITATION]
Posteriormente, el 25 de agosto de 2022, OMA notificó un
señalamiento de vista adjudicativa para el 19 de enero de 2023.[CITATION]
Llegado el mes señalado para la mencionada vista, el 11 de enero de
2023, Irene Berlingeri presentó una “Solicitud de Transferencia de
Vista”,[CITATION] quedando la misma reseñalada para el 8 de junio de 2023.[CITATION]
Esta última vista fue nuevamente reseñalada, esta vez para el 6 de
noviembre de 2023,[CITATION] luego de que Little Caesar’s solicitara su
suspensión.[CITATION]
Llegado el día de la vista pautada, Little Caesar’s no
compareció, por lo que OMA emitió una “Resolución Interlocutoria”
el 19 de diciembre de 2023.[CITATION] Mediante su dictamen, la recurrida
indicó que, por no haberse justificado la ausencia, continuó con los
procedimientos de manera ex parte, y que, a consecución de los
mismos, concedería el remedio solicitado.[CITATION] KLRA202400193
El 3 de enero de 2024, Little Caesar’s presentó una moción
ante OMA, solicitando que reconsidere su último dictamen.[CITATION] Indicó
[SEGMENT 26]
que siempre ha comparecido, y que contestó oportunamente la
querella. También, arguyó que la última notificación de
reseñalamiento no la recibió por correo. El 10 de enero de 2024, la
recurrente presentó su oposición a la solicitud de reconsideración.[CITATION]
En su contestación, Irene Berlingeri señaló que nunca recibió la
contestación a la querella de Little Caesar’s, y que el abogado de la
querellada recibió las notificaciones por correo electrónico.
Así las cosas, el 12 de enero de 2024, OMA emitió una
“Resolución Interlocutoria” informando que nunca recibió la
contestación a la querella por parte de Little Caesar’s, y que esta no
compareció a la vista administrativa celebrada en el mes de
noviembre del año 2023.[CITATION] El 29 de enero de 2024, Little Caesar’s
presentó otra moción solicitando reconsideración.
No obstante, el 31 de enero de 2024, OMA emitió una
“Resolución y Orden”, donde anotó la rebeldía y ordenó a Little
Caesar’s a compensar al recurrente por la cantidad de $18,495.00,
por concepto de despido injustificado, además de una suma de
$2,774.25.00, para sufragar los honorarios de abogado.[CITATION]
Posteriormente, el 5 de febrero de 2024, Little Caesar’s
presentó una “Moción sobre Solicitud de Regrabación de los
Procedimientos y Solicitando Acceso al Expediente” ante OMA.[CITATION] El 6
de febrero de 2024, Irene Berlingeri replicó a esta última.[CITATION] En la
misma, aduce la recurrente que Little Caesar’s insiste, de manera
frívola, en dilatar la culminación de la controversia entre ambos. KLRA202400193
En una nueva moción de reconsideración, Little Caesar’s
plantea que del expediente de OMA surge que la notificación por
correo electrónico para la vista del 6 de noviembre de 2023 rebotó,
y que no consta en la misma prueba de que haya sido notificada de
alguna otra forma.[CITATION] Ese mismo día, la recurrente presentó su
contestación a la última reconsideración solicitada por la
querellada.[CITATION] Finalmente, mediante “Resolución” del 7 de marzo de
2024, OMA reconoce que, aunque no hay evidencia del recibo de la
contestación a la querella, las notificaciones para la celebración de
la vista el 6 de noviembre de 2023, no fueron adecuadas.[CITATION] Por ello,
OMA dejó sin efecto su “Resolución y Orden” del 31 de enero de 2024
y señaló una nueva vista administrativa para el 20 de mayo de
2024.[CITATION]
Sin embargo, el 19 de marzo de 2024, Irene Berlingeri
presentó una “Solicitud de Reconsideración”, la cual no fue
contestada.[CITATION] Luego, el 12 de abril de 2024, Irene Berlingeri recurre
ante esta Curia, mediante una “Solicitud en Auxilio de Jurisdicción”,
solicitando que paralicemos los efectos de la “Resolución” emitida
por la agencia el 7 de marzo de 2023. Mediante “Resolución” del 15
de abril de 2024, declaramos “No Ha Lugar” a la solicitud en auxilio
de jurisdicción del recurrente.
En el recurso de Revisión Judicial, que también presentó el
12 de abril de 2024, el recurrente nos hace los siguientes
señalamientos de error:
PRIMER ERROR: ERRÓ LA AGENCIA AL DEJAR SIN
EFECTO LA RESOLUCIÓN EMITIDA EL 31 DE ENERO DE
POR UNA ALEGACIÓN DE FALTA DE NOTIFICACIÓN,
CUANDO EL LCDO. ERNESTO DELGADO SOTO FUE
EFECTIVAMENTE NOTIFICADO Y COMPARECIÓ
[CITATION] KLRA202400193
POSTERIORMENTE EN REPRESENTACIÓN DE LA PARTE
RECURRIDA, SOLICITANDO TRANSFERENCIA DE VISTA.
SEGUNDO ERROR: ERRÓ LA AGENCIA AL DEJAR SIN
EFECTO LA RESOLUCIÓN EMITIDA EL 31 DE ENERO DE
2024 CUANDO SURGE DEL EXPEDIENTE QUE TODAS LAS
NOTIFICACIONES DE LA AGENCIA FUERON
DEBIDAMENTE NOTIFICADAS AL REPRESENTANTE
LEGAL DEL PATRONO A LA DIRECCIÓN QUE SURGE DE
RUA.
II.
A. Jurisdicción
Como es conocido, la jurisdicción es el poder o la autoridad
que tiene un Tribunal para considerar y decidir casos o
controversias que tiene ante sí. [CITATION].
Además, es norma reiterada en nuestro ordenamiento, que “los
tribunales deben ser celosos guardianes de su jurisdicción y que no
tienen discreción para asumir jurisdicción allí donde no la tienen”.
[CITATION].
La jurisdicción se refiere a la capacidad que tiene un tribunal
para atender y resolver controversias sobre determinado aspecto
legal. [CITATION].
Ante la falta de jurisdicción, el tribunal debe así declararlo y
proceder a la desestimación del recurso, toda vez que cualquier
sentencia dictada sin jurisdicción es nula en derecho, pues la
ausencia de jurisdicción es insubsanable. [CITATION]. KLRA202400193
[CITATION].
No es necesario que una o ambas partes cuestionen la
jurisdicción de un tribunal, sino que es nuestro deber levantarlo
motu proprio. Así lo establece la Regla 83 del Reglamento del
Tribunal de Apelaciones, 4 LPRA Ap. XXII-B, R. 83, la cual confiere
facultad a este Tribunal para, a iniciativa propia o a petición de
parte, desestimar un recurso de apelación o denegar un auto
discrecional cuando este foro carece de jurisdicción. También, la
precitada regla dispone que este Tribunal, a iniciativa propia, podrá
desestimar un recurso de apelación o denegar un auto discrecional
por cualquiera de los siguientes motivos:
(1) que el Tribunal de Apelaciones carece de
jurisdicción;
(2) que el recurso fue presentado fuera del término de
cumplimiento estricto dispuesto por ley sin que exista
justa causa para ello;
(3) que no se ha presentado o proseguido con diligencia
o de buena fe;
(4) que el recurso es frívolo y surge claramente que no
se ha presentado una controversia sustancial o que ha
sido interpuesto para demorar los procedimientos, o
(5) que el recurso se ha convertido en académico.
B. Revisión de Agencias Administrativas
Sabido es, que los tribunales apelativos debemos otorgar
amplia deferencia a las decisiones emitidas por las agencias
administrativas, puesto que estas cuentan con vasta experiencia y
pericia para atender aquellos asuntos que se les han sido delegados
por la Asamblea Legislativa. [CITATION].
====== End of Court Ruling ====== ```plaintext
KLRA202400193
otro, [CITATION]. Es por ello, que, tales determinaciones
suponen una presunción de legalidad y corrección que a los
tribunales nos corresponde respetar, mientras la parte que las
impugne no presente prueba suficiente para derrotarlas. Id.;
[CITATION].
El Art. 4.006, de la Ley de la Judicatura de 2003, 4 LPRA sec.
24y, establece en su inciso (c) la competencia del Tribunal de
Apelaciones. A esos efectos, dispone que este Foro conocerá
mediante recurso de revisión judicial, las decisiones, órdenes y
resoluciones finales de organismos o agencias administrativas.
[CITATION].
Por su parte, la Sección 1.3 de la Ley de Procedimiento
Administrativo Uniforme del Gobierno de Puerto Rico, en adelante,
LPAUG, 3 LPRA sec. 9601, define “orden o resolución” como
“cualquier decisión o acción agencial de aplicación particular que
adjudique derechos u obligaciones de una o más personas
específicas, o que imponga penalidades o sanciones administrativas,
excluyendo órdenes ejecutivas emitidas por el Gobernador”.
Además, la precitada sección define “orden interlocutoria” como
“aquella acción de la agencia en un procedimiento adjudicativo que
disponga de algún asunto meramente procesal”.
La Sec. 4.2 de la LPAUG, supra, sec. 9672, también establece
que la revisión administrativa ante el Tribunal de Apelaciones se
hará respecto a las órdenes o resoluciones finales, luego de que
el recurrente haya agotado “todos los remedios provistos por la
agencia o por el organismo administrativo apelativo
correspondiente”. Es decir, no serán revisables directamente a este
``` KLRA202400193
Tribunal las órdenes o resoluciones interlocutorias de una agencia,
esto es, aquellas que se emitan durante los procesos administrativos
[SEGMENT 27]
que se desarrollan por etapas, y no sean finales. A esos efectos, esta
misma sección provee que la disposición interlocutoria de la agencia
podrá ser objeto de un señalamiento de error en el recurso de
revisión de la orden o resolución final de la agencia.
A pesar de que la LPAUG no define el término “orden o
resolución final”, esta contiene una descripción de lo que una tiene
que incluir para ser considerada final. En su Sección 3.14, supra,
sec. 9654, este cuerpo estatutario requiere que se incluyan
determinaciones de hecho y las conclusiones de derecho que
fundamentan la adjudicación, además de añadir la advertencia del
derecho a solicitar una reconsideración o revisión, según sea el caso.
[CITATION]
Por su parte, el Tribunal Supremo de Puerto Rico ha
establecido que para que una orden emitida por una agencia pueda
ser revisada ante el Tribunal de Apelaciones, deben cumplirse dos
requisitos: (i) que la parte adversamente afectada por la orden haya
agotado los remedios provistos por la agencia y (ii) que la resolución
sea final y no interlocutoria. [CITATION] Se entiende como final la orden o resolución emitida por la
última autoridad decisoria o adjudicativa de la agencia
administrativa. [CITATION]
Nuestro Alto Foro lo ha descrito como una orden o resolución que
“le ponga fin al caso ante la agencia y que tenga efectos sustanciales
sobre las partes”. [CITATION] KLRA202400193
III.
El recurrente en el caso de epígrafe nos solicita que revisemos
la “Resolución” de la recurrida del 7 de marzo de 2024, por medio de
la cual dejó sin efecto la “Resolución y Orden” del 31 de enero de
2024. En esta última, OMA había declarado con lugar la querella de
Irene Berlingeri.
Sin embargo, por entender que sí se cometieron las faltas en
las notificaciones alegadas por Little Caesar’s, la recurrida dejó sin
efecto la determinación final del 31 de enero de 2024. Mediante su
dictamen, la recurrida, ordenó una nueva vista, y en esencia,
proveyó para la continuación de los procesos. Justipreciamos que,
mediante la resolución recurrida, la controversia versada ante OMA
no se adjudicó de manera final.
Como explicáramos previamente, este Tribunal debe evaluar
si se encuentra en posición para entender sobre las determinaciones
administrativas, y si cuenta con jurisdicción para así hacerlo.
Entendemos que la resolución recurrida es, conforme lo establecido
en la LPAUG y la jurisprudencia, de carácter interlocutorio. La
controversia en el caso de epígrafe continua viva en el foro
administrativo, por lo que carecemos de jurisdicción para intervenir
en esta etapa.
IV.
Por los fundamentos que antecede, desestimamos el recurso
por falta de jurisdicción.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
LCDA. LILIA M. OQUENDO SOLÍS
Secretaria del Tribunal de Apelaciones
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
EN EL TRIBUNAL SUPREMO DE PUERTO RICO
Marisol Capote Rivera, Carlos Leyva y
la Sociedad de Bienes Gananciales
compuesta entre ambos; José Orlando
Santiago Rodríguez y Ya-O-Ming Rondón
Rodríguez; Julio Enrique Muñoz Ponce
de León y Karla Mariel Silva Martínez;
Carlos Ismael Rivera Lezcano y Raiza
Centeno Pagán; Carmen Milagros Delgado
García; Enrique Manuel Ferrer Urbina;
Heriberto Ocasio Burgos y Elizabeth
Texidor de Jesús, Nivea Rebecca
Fraticcelli Espada; Sheila Ana Sánchez
Castro; Jorge C. Suárez Castro; David
John Dávila Pagán
Recurridos
v.
Voilí Voilá Corporation; David
Chaymol; OGPE
Recurridos
Municipio Autónomo de Guaynabo;
Oficina de Permisos Urbanísticos Certiorari
Peticionarios
______________________________________ 2024 TSPR 29
Marisol Capote Rivera, Carlos Leyva y 213 DPR ___
la Sociedad de Bienes Gananciales
compuesta entre ambos; José Orlando
Santiago Rodríguez y Ya-O-Ming Rondón
Rodríguez; Julio Enrique Muñoz Ponce
de León y Karla Mariel Silva Martínez;
Carlos Ismael Rivera Lezcano y Raiza
Centeno Pagán; Carmen Milagros Delgado
García; Enrique Manuel Ferrer Urbina;
Heriberto Ocasio Burgos y Elizabeth
Texidor de Jesús, Nivea Rebecca
Fraticcelli Espada; Sheila Ana Sánchez
Castro; Jorge C. Suárez Castro; David
John Dávila Pagán
Peticionarios
v.
Voilí Voilá Corporation; David
Chaymol; OGPE
Recurridos
Municipio Autónomo de Guaynabo;
Oficina de Permisos Urbanísticos
Recurridos
CC-2023-0305 cons. CC-2023-0306 2
Número del Caso: CC-2023-0305
cons. con CC-2023-0306
Fecha: 26 de marzo de 2023
Tribunal de Apelaciones:
Panel X
CC-2023-0305
Abogados de la parte peticionaria:
Lcdo. Jaime L. Gordon De Jesús
Lcda. Heidi Medina Cordero
Abogado de la parte recurrida:
Lcdo. Miguel Mihaljevich
CC-2023-0306
Abogados de la parte peticionaria:
Lcda. Michelle E. Rodríguez Gerena
Lcdo. Daniel R. Martínez Avilés
Lcda. Gabriela N. Cruz Rodríguez
Abogado de la parte recurrida:
Lcdo. Miguel L. Torres Torres
Materia: Derecho de Permisos – Exigencia de una consulta de
ubicación para obtener un permiso para uso ecoturístico debido a la
clasificación del terreno.
Este documento está sujeto a los cambios y correcciones del proceso
de compilación y publicación oficial de las decisiones del Tribunal
Supremo. Su distribución electrónica se hace como un servicio
público a la comunidad.
EN EL TRIBUNAL SUPREMO DE PUERTO RICO
Marisol Capote Rivera, Carlos
Leyva y la Sociedad de Bienes
Gananciales compuesta entre
ambos; José Orlando Santiago
Rodríguez y Ya-O-Ming Rondón
Rodríguez; Julio Enrique Muñoz
Ponce de León y Karla Mariel
Silva Martínez; Carlos Ismael
Rivera Lezcano y Raiza Centeno
Pagán; Carmen Milagros Delgado
García; Enrique Manuel Ferrer
Urbina; Heriberto Ocasio Burgos
y Elizabeth Texidor de Jesús,
Nivea Rebecca Fraticcelli
Espada; Sheila Ana Sánchez
Castro; Jorge C. Suárez Castro;
David John Dávila Pagán
Recurridos
v.
Voilí Voilá Corporation; David
Chaymol; OGPE
CC-2023-0305
Recurridos cons. con Certiorari
CC-2023-0306
Municipio Autónomo de Guaynabo;
Oficina de Permisos Urbanísticos
Peticionarios
Marisol Capote Rivera, Carlos
Leyva y la Sociedad de Bienes
Gananciales compuesta entre
ambos; José Orlando Santiago
Rodríguez y Ya-O-Ming Rondón
Rodríguez; Julio Enrique Muñoz
Ponce de León y Karla Mariel
Silva Martínez; Carlos Ismael
Rivera Lezcano y Raiza Centeno
Pagán; Carmen Milagros Delgado
García; Enrique Manuel Ferrer
Urbina; Heriberto Ocasio Burgos
y Elizabeth Texidor de Jesús,
Nivea Rebecca Fraticcelli
Espada; Sheila Ana Sánchez
CC-2023-0305 cons. CC-2023-0306 2
Castro; Jorge C. Suárez Castro;
David John Dávila Pagán
Peticionarios
v.
Voilí Voilá Corporation; David
Chaymol; OGPE
Recurridos
Municipio Autónomo de Guaynabo;
Oficina de Permisos Urbanísticos
Recurridos
Opinión del Tribunal emitida por el Juez Asociado señor
ESTRELLA MARTÍNEZ.
En San Juan, Puerto Rico, a 26 de marzo de 2024.
En esta ocasión, este Tribunal tiene la obligación de
dilucidar aspectos específicos de los usos permitidos en los
distritos designados para la conservación de recursos. En
particular, nos corresponde identificar si la obtención de
un permiso para un uso ecoturístico puede tramitarse de forma
ministerial o si, por el contrario, el cuerpo reglamentario
dispone que la clasificación del terreno exige un trámite
con criterios subjetivos como lo es la consulta de ubicación.
Siendo ello así, veamos, entonces, el cuadro fáctico dentro
del cual se desarrolló este caso.
I
El 11 de febrero de 2022, Voilí Voilá Corporation (VVC),
por conducto del Ingeniero José G. Deya, presentó ante la
Oficina de Permisos Urbanísticos (OPU) del Municipio Autónomo
CC-2023-0305 cons. CC-2023-0306 3
de Guaynabo (Municipio) un Memorial explicativo con el fin
de obtener un permiso de uso ministerial. En específico,
expresó su interés en el uso de ciertas instalaciones en una
finca que ubica en Guaynabo, específicamente en el Sector
Capó del barrio Hato Nuevo, para actividades recreativas,
ecoturísticas y agrícolas.1 Afirmó que, bajo la Sección
6.1.23.3 del Reglamento Conjunto para la Evaluación y
Expedición de Permisos Relacionados al Desarrollo, Uso de
Terrenos y Operación de Negocios, Reglamento Núm. 9233 de 2
de diciembre de 2020 (Reglamento Conjunto), tales actividades
podían ser permitidas ministerialmente, pues no presentaban
conflictos con la conservación del tipo o clase del recurso
y la estabilidad de los terrenos.
Acto seguido, un grupo de vecinos del Sector Capó,
algunos de estos colindantes con el terreno en cuestión
(Vecinos del Sector Capó), presentó una Solicitud de
intervención y oposición al permiso único.2 El grupo
1Apéndice de Recurso de revisión judicial, págs. 36-38.
Según esta petición, VVC originalmente había solicitado una
consulta de ubicación para otro uso dentro de estas
instalaciones, pero el asunto fue archivado después del
transcurso de treinta (30) días sin que se obtuvieran las
recomendaciones requeridas. Conforme se desprende del
expediente, el 10 de junio de 2021, VVC envió un Memorial
explicativo a la OPU con el fin de obtener autorización para
construir un restaurante que describió como tipo “Farm to
Table” en el primer nivel de una estructura existente en el
predio antes descrito, manteniendo el uso residencial del
segundo nivel. Íd., págs. 28-35.
2El grupo está compuesto por la Sra. Marisol Capote
Rivera, el Sr. Carlos Leyva Jordán, la Sociedad Legal de
Gananciales compuesta entre estos, el Sr. José O. Santiago
Rodríguez, la Sra. Ya-o-Ming Rondón Rodríguez, el Sr. Julio
CC-2023-0305 cons. CC-2023-0306 4
argumentó que la solicitud de VVC no era de carácter
ministerial y que este no era el procedimiento apropiado para
esta, pues pretendía usar una propiedad residencial para una
actividad comercial que era incompatible con la clasificación
del terreno. Los Vecinos del Sector Capó sostuvieron que la
actividad propuesta afectaría el entorno residencial, el cual
no contaba con la infraestructura o las condiciones por no
ser uno turístico o comercial, y, en consecuencia, incidiría
sobre sus intereses propietarios.
En su Oposición a solicitud de intervención, VVC arguyó
que los Vecinos del Sector Capó carecían de legitimación
activa, pues, entre otros, el procedimiento no era
adjudicativo y no tendría efecto sobre sus intereses
propietarios. Añadió que su petición no implicaba un cambio
de calificación en el distrito ni tampoco conllevaba un uso
con efecto adverso en el sector, pues este estaba contemplado
ministerialmente y, además, había sido elaborado conforme al
distrito de calificación de la propiedad.
Posteriormente, los Vecinos del Sector Capó presentaron
una Moción en solicitud de archivo. Plantearon que la OPU
carecía de jurisdicción debido a que la Sección 6.1.23.3 del
Reglamento Conjunto requería que los usos en terrenos
E. Muñoz Ponce De León, la Sra. Karla N. Silva Martínez, el
Sr. Carlos I. Rivera Lezcano, la Sra. Raiza Centeno Pagán,
la Sra. Carmen M. Delgado García, el Sr. Enrique M. Ferrer
Urbina, el Sr. Heriberto Ocasio Burgos, la Sra. Elizabeth
Texidor De Jesús, la Sra. Nivea Rebecca Fraticcelli Espada,
la Sra. Sheila A. Sánchez Castro, el Sr. Jorge C. Suárez
Castro y el Sr. David J. Dávila Pagán.
CC-2023-0305 cons. CC-2023-0306 5
clasificados como Conservación de Recursos (CR) fueran
tramitados a través de una consulta de ubicación con el fin
de demostrar que la actividad propuesta no representaría un
conflicto en el área.
En respuesta, VVC instó una Oposición a solicitud de
archivo y para que se adjudique permiso de uso ministerial.
Reiteró que los Vecinos del Sector Capó carecían de
legitimación activa para intervenir en el proceso y que el
uso propuesto se encontraba entre aquellos que podían
permitirse sin una consulta de ubicación. Sostuvo que
concluir que procedía tal trámite tendría el efecto de crear
un área sin uso ministerial, lo que sería inconstitucional.
El 13 de mayo de 2022, la OPU declaró ha lugar la
solicitud de intervención tras concluir que los Vecinos del
Sector Capó habían demostrado ser vecinos de la actividad
propuesta y que su participación ayudaría razonablemente a
preparar un expediente más completo.
Así las cosas, el 17 de mayo de 2022, la OPU emitió una
Resolución de archivo. En esta consignó que la propiedad en
cuestión ubicaba en un distrito con Calificación de
Conservación de Recursos Cinco (CR-5) y Clasificación de
Suelo Rústico Especialmente Protegido (SREP). Concluyó que
la Sección 6.2.23.3 del Reglamento Conjunto establecía que
servicios como el propuesto por VVC podían ser autorizados
en distritos CR siempre y cuando no presentaran conflictos
con la conservación del tipo del recurso o la estabilidad de
CC-2023-0305 cons. CC-2023-0306 6
los terrenos, y que se tramitaran mediante una consulta de
ubicación. Por ende, la OPU determinó que procedía archivar
sin perjuicio la solicitud debido a que el trámite correcto
era la consulta de ubicación y no el trámite de uso
ministerial.
Disconforme, VVC recurrió ante la División de Revisiones
Administrativas de la Oficina de Gerencia de Permisos (DRA)
mediante una Solicitud de revisión administrativa. Protestó
que la OPU tratara como discrecional la concesión del permiso
de uso en un distrito calificado como CR cuando, a su juicio,
este gozaba de carácter ministerial en actividades como las
que propuso. Señaló que el Reglamento Conjunto distinguía
este tipo de usos de los que requerían consultas de ubicación
y que, en su caso específico, la propuesta no conllevaba obra
de construcción alguna. Finalmente, reiteró su postura con
respecto a la ausencia de legitimación activa y arguyó que
la OPU incidió sobre los términos reglamentarios.
Tras la celebración de una vista virtual, el 6 de
septiembre de 2022, la DRA emitió una Resolución de revisión
administrativa. En esta, señaló que, según la tabla 6.78 de
la Sección 6.1.23.3 en el Reglamento Conjunto, las
actividades recreacionales, ecoturísticas y agroturísticas
estaban listadas como aquellas permitidas ministerialmente.
A esto añadió que las actividades propuestas no confligirían
con la conservación del recurso y la estabilización del
terreno porque se llevarían a cabo sobre obras existentes.
CC-2023-0305 cons. CC-2023-0306 7
Por consiguiente, concluyó que la determinación de la OPU no
merecía deferencia y procedía la solicitud de permiso único.
En desacuerdo, los Vecinos del Sector Capó presentaron
un Recurso de revisión judicial ante el Tribunal de
Apelaciones. En este, sostuvieron que se concedió
incorrectamente de forma ministerial un permiso de uso que
tenía que pasar por un proceso de consulta de ubicación
debido al distrito en el que ubicaría el negocio propuesto.
Argumentaron que, si bien la reglamentación permite usos como
el solicitado en distritos CR, tiene que primero confirmarse
que este no presentará conflicto con la conservación de los
recursos. Señalaron que no se desprendía de la reglamentación
que los usos permitidos en un distrito de esta clasificación
pudieran ser considerados y otorgados ministerialmente, en
particular cuando se trataba de una lista numerus apertus
sobre posibles usos.
Por su parte, VVC instó una Solicitud de desestimación
en la cual argumentó, esencialmente, que los Vecinos del
Sector Capó, colectiva e individualmente, carecían de
legitimación activa y capacidad jurídica, pues no podían
evidenciar el daño que le causó la determinación recurrida.
También alegó que no existía una controversia real y que el
expediente estaba incompleto.
De otro lado, la Oficina de Gerencia y Permisos (OGPe)
presentó una Oposición a revisión administrativa en la cual
sostuvo que la Sección 6.1.23.3 del Reglamento Conjunto
CC-2023-0305 cons. CC-2023-0306 8
permite ciertos usos que no impactan la estabilidad del
recurso o la estabilización del terreno, aspectos que no
requerían una evaluación discrecional en esta etapa. Afirmó,
además, que la actividad propuesta tomaría lugar en una
estructura existente, por lo que no requería el desarrollo
de terrenos o construcción para llevarse a cabo. Arguyó que
interpretar que los usos en la tabla exigen una consulta de
ubicación equivaldría a anularla.
El 15 de marzo de 2023, notificada al día siguiente, el
Tribunal de Apelaciones emitió una Sentencia en la cual
confirmó el dictamen de la DRA. En síntesis, el foro
apelativo intermedio concluyó que la determinación de la DRA
fue razonable, pues según surge de la Tabla 6.78 del
Reglamento Conjunto, las instalaciones recreativas,
ecoturísticas y para uso agrícola se encontraban entre los
usos permitidos en un distrito C-R y, por ende, podían ser
autorizados ministerialmente. Tanto el Municipio como los
Vecinos del Sector Capó presentaron sus respectivas
solicitudes de reconsideración, las cuales fueron
eventualmente denegadas por el foro apelativo intermedio.
Inconforme, el Municipio acudió ante este Tribunal
mediante un Recurso de revisión judicial. En primer lugar,
argumentó en favor de conceder deferencia a los municipios
autónomos en el despliegue de sus facultades administrativas
sobre las cuales tienen pericia, particularmente en lo
referente al desarrollo de sus terrenos y la protección de
CC-2023-0305 cons. CC-2023-0306 9
sus recursos naturales. Sostuvo que el DRA y el Tribunal de
Apelaciones erraron al revocar su determinación y, en
consecuencia, otorgar un permiso sin cerciorarse que ello no
afectaría la estabilidad de los terrenos o pusiera en peligro
la conservación de los recursos protegidos. Reafirmó que la
Sección 6.1.23.3 del Reglamento Conjunto exigía una consulta
de ubicación para la actividad de uso propuesta.
Por su parte, los Vecinos del Sector Capó también
comparecieron ante nos a través de un Auto de certiorari. En
este, reiteraron su postura con respecto a que, ante la
realidad del proyecto propuesto y la letra clara de la
reglamentación sobre distritos CR, la evaluación del uso
solicitado tenía que estar acompañada de un análisis sobre
la conservación de los recursos y la estabilidad del terreno,
es decir, de una consulta de ubicación. Señalaron que la
petición de VVC no identificó los recursos a proteger ni el
tipo de recurso en el predio, como tampoco certificó que no
se afectarían los suelos según exige la reglamentación
aplicable. Rechazaron que la consulta de ubicación fuese
requerida solo para los usos no enumerados en la tabla y
razonaron que el uso propuesto por VVC solo podía ser
aprobado de forma discrecional porque tenían que cerciorarse
de que este cumpliera con todas las consideraciones
reglamentarias.
En su Alegato de la agencia recurrida, la OGPE afirmó
que lo solicitado por VVC constituía un uso permitido por la
CC-2023-0305 cons. CC-2023-0306 10
calificación del predio conforme al Reglamento Conjunto, en
particular por tratarse de una operación que se llevaría a
cabo en una estructura existente en un terreno desarrollado.
Sostuvo que interpretar que los usos desglosados en la tabla
también requerían una consulta de ubicación equivaldría a
anular la distinción entre estos y los que no fueron
incluidos. Descartó, además, que la determinación de la OPU
mereciera más deferencia que la suya, pues es esta la agencia
revisora con pericia.
Finalmente, mediante un Alegato de la parte recurrida,
VVC reiteró que su petición se centró en un permiso de uso
para actividades recreativas, ecoturísticas y agroturísticas
en las estructuras existentes en la propiedad, el cual se
concede ministerialmente en el distrito C-R y descansa en el
derecho propietario de una persona al uso y disfrute de su
propiedad. Sostuvo que la Tabla 6.78 del Reglamento Conjunto
distinguía con claridad los usos ministeriales de aquellos
que requerían una consulta de ubicación. Expresó que el
lenguaje en la sección antes aludida no implicaba la
existencia de criterios subjetivos e indicó que demostró que
su proyecto y los usos propuestos no conllevarían impacto
ambiental que requieran un análisis más profundo.
Trabada así la controversia, tras la consolidación de
los recursos, la expedición del auto solicitado y la
comparecencia de todas las partes, procedemos a resolver el
CC-2023-0305 cons. CC-2023-0306 11
asunto, no sin antes repasar el Derecho aplicable a la
controversia.
II
A.
Como se sabe, la revisión judicial permite a los
tribunales garantizar que las agencias administrativas
actúen dentro de los márgenes de las facultades que le fueron
delegadas por ley. Comisión Ciudadanos v. G.P. Real Prop.,
173 DPR 998, 1015 (2008). A su vez, posibilita el poder
constatar que los organismos administrativos “cumplan con
los mandatos constitucionales que rigen el ejercicio de su
función, especialmente con los requisitos del debido proceso
de ley”. Íd. De esta forma, se vela por que los ciudadanos
tengan “un foro al cual recurrir para vindicar sus derechos
y obtener un remedio frente a las actuaciones arbitrarias de
las agencias”. Íd. En términos simples, la revisión judicial
constituye “el recurso exclusivo para revisar los méritos de
una decisión administrativa sea ésta de naturaleza
adjudicativa o de naturaleza informal”. Depto. Educ. v.
Sindicato Puertorriqueño, 168 DPR 527, 543 (2006).
No obstante, al ejercer la revisión judicial los
tribunales no pueden descartar de forma absoluta la
determinación de una agencia, sino que primero tienen que
examinar la totalidad del expediente y determinar si la
interpretación de la agencia representó un ejercicio
razonable de su discreción administrativa, así fundamentado
CC-2023-0305 cons. CC-2023-0306 12
en la pericia particular de esta, en consideraciones de
política pública o en la apreciación de la prueba. Otero v.
Toyota, 163 DPR 716, 729 (2005). Esto es así, toda vez que
las determinaciones de los organismos administrativos están
revestidas de una presunción de regularidad y corrección
debido a su vasta experiencia y conocimiento especializado,
lo que significa que estas merecen deferencia por parte de
los foros judiciales. González Segarra v. CFSE, 188 DPR 252,
276 (2013). Dicho de otro modo, solo procede sustituir el
criterio de la agencia por el del tribunal revisor cuando no
exista una base racional para explicar la decisión
administrativa. Capó Cruz v. Jta. de Planificación et al,
204 DPR 581, 591 (2020).
Ahora bien, aunque los tribunales revisores están
llamados a conceder deferencia amplia a las determinaciones
de las agencias administrativas, tal norma no es absoluta.
En otras palabras, no puede imprimírsele un sello de
corrección automático bajo el pretexto de deferencia a
aquellas determinaciones o interpretaciones administrativas
que son irrazonables, ilegales o contrarias a Derecho.
Graciani Rodríguez v. Garage Isla Verde, 202 DPR 117, 126
(2019). En consecuencia, la deferencia cede cuando: (1) la
decisión no está basada en evidencia sustancial; (2) el
organismo administrativo ha errado en la aplicación o
interpretación de las leyes o reglamentos;(3) ha mediado una
actuación arbitraria, irrazonable o ilegal, o (4) la
CC-2023-0305 cons. CC-2023-0306 13
actuación administrativa lesiona derechos constitucionales
fundamentales. Super Asphalt Pavement, Corp. v. AFI y otro,
206 DPR 803, 819 (2021).
B.
En nuestro ordenamiento, “el marco jurídico y
administrativo que rige la solicitud, evaluación, concesión
y denegación de permisos” fue establecido mediante la Ley
Núm. 161-2009, conocida como la Ley para la Reforma del
Proceso de Permisos de Puerto Rico, 23 LPRA sec. 9011 et seq.
Véase, además, Laureano v. Mun. de Bayamón, 197 DPR 420, 433
(2017). Debido a la pertinencia en esta controversia de los
conceptos que se definen a continuación, es necesario visitar
el Art. 1.5 de la ley antes citada, la cual, en lo que nos
concierne, dispone lo siguiente:
14) "Consulta de ubicación" - Es el procedimiento
ante la Oficina de Gerencia de Permisos o los
Municipios Autónomos con Jerarquía de la I a la
V, a los cuales se le haya delegado dicha facultad
por medio del Convenio de Transferencia, para que
evalúen, pasen juicio y tomen la determinación
que estimen pertinente sobre propuestos usos de
terrenos que no son permitidos ministerialmente
y que no pueden considerarse mediante otro
mecanismo. En áreas no calificadas incluye
propuestos usos de terrenos que por su naturaleza
y complejidad requieran un grado mayor de
análisis.
[…]
48) "Ministerial" - describe una determinación
que no conlleva juicio subjetivo por parte de un
funcionario público o Profesional Autorizado
sobre la forma en que se conduce o propone una
actividad o acción. El funcionario o Profesional
Autorizado meramente aplica los requisitos
específicos de las leyes o reglamentos a los
hechos presentados, pero no utiliza ninguna
CC-2023-0305 cons. CC-2023-0306 14
discreción especial o juicio para llegar a su
determinación, ya que esta determinación
involucra únicamente el uso de estándares fijos
o medidas objetivas. El funcionario no puede
utilizar juicios subjetivos, discrecionales o
personales al decidir si una actividad debe ser
realizada o cómo debe ser realizada. Por ejemplo,
un permiso de construcción sería de carácter
ministerial si el funcionario sólo tuviera que
determinar si el uso es permitido en la propiedad
bajo los distritos de calificación aplicables, si
cumple con los requisitos de edificabilidad
aplicables (e.g., Código de Construcción) y si el
solicitante ha pagado cualquier cargo aplicable
y presentado los documentos requeridos; el
Reglamento Conjunto de Permisos contendrá una
lista en la que se incluyan todos los permisos
que se consideran ministeriales. 23 LPRA sec.
9011.
Precisamente, tal lista en el inciso (d) de la Sección
2.2.1.3 del Reglamento Conjunto3 establece que los permisos
3En Martínez Fernández v. Oficina de Gerencia de
Permisos, 2023 TSPR 75, este Tribunal pautó que tanto el
Reglamento Conjunto del 2019 como el Reglamento Conjunto de
2020 aquí en disputa eran nulos y, en consecuencia,
inválidos. Ahora bien, establecimos que tal determinación de
nulidad tendría efecto prospectivo y no aplicaría a aquellos
permisos autorizados y expedidos que no fuesen finales y
firmes por estar sub judice:
De este modo, todo permiso que haya sido
autorizado y expedido al amparo de los referidos
reglamentos, previo a la emisión de este
pronunciamiento, deberá ser aceptado como legal
por toda la ciudadanía. Así, decretamos
meridianamente que ningún permiso autorizado y
expedido al amparo del Reglamento Conjunto de 2019
y el Reglamento Conjunto de 2020 es inválido por
razón de que estas regulaciones hayan sido
declaradas nulas.
Las solicitudes de permisos pendientes de
adjudicación y en las cuales se hayan celebrado o
señalado vista adjudicativa se podrán continuar
tramitando al amparo del reglamento conjunto
aplicable. Esto aplica igualmente a aquellos
permisos cuya autorización y expedición no es
final y firme por ser objeto de revisión en los
CC-2023-0305 cons. CC-2023-0306 15
ministeriales se otorgarán para los usos específicamente
permitidos en cada distrito y siempre tienen que cumplir
cabalmente con varios parámetros, a saber: la calificación;
los usos; la altura; el tamaño del solar; la densidad; el
área de ocupación; el área bruta de piso; los patios
(delantero, laterales y posterior); los espacios de
estacionamientos, y el área de carga y descarga. Conforme a
la sección antes citada, los permisos de esta naturaleza se
expedirán “únicamente cuando la estructura o uso para lo que
se solicite el permiso estén en completa armonía y conformidad
con las disposiciones de este Reglamento”.
De otro lado, el Capítulo 3.7 del Reglamento Conjunto
describe lo relacionado con los permisos únicos, los cuales,
según los incisos a y b de la Sección 3.7.1.1, consolidan e
incorporan varios trámites en una solicitud y deben obtenerse
para todo edificio nuevo o existente con usos no
tribunales. Los tribunales evaluarán los recursos
que se presenten a tales efectos a la luz del
reglamento que la agencia haya utilizado para
autorizar y expedir el permiso impugnado, si como
cuestión de derecho es el aplicable. (Negrillas
suplidas).
Ante este cuadro, el permiso aquí en controversia fue
expedido mientras el Reglamento Conjunto aún tenía vigencia
y, de acuerdo con nuestros pronunciamientos, debe atenderse
bajo los parámetros de tal reglamentación. Además, existen
similitudes entre la Sección 6.1.23.3 del Reglamento Conjunto
aquí en cuestión y aquella comparativa en el Borrador para
discusión y vista pública del Reglamento Conjunto para la
expedición de permisos relacionados al desarrollo, uso de
terrenos y operación de negocios de 2022, Sección 6.1.29.3,
por lo que lo aquí pautado será de utilidad para su
interpretación.
CC-2023-0305 cons. CC-2023-0306 16
residenciales. Así las cosas, de acuerdo con la Sección
3.7.1.9., un permiso de esta índole puede ser expedido de
forma automática por la OGPe o un Municipio Autónomo de
Jerarquía de la I a la III cuando un Ingeniero o Arquitecto
Licenciado certifique que:
1. que el uso solicitado es permitido en la
calificación que ostenta el predio;
2. que cumple con los parámetros del distrito de
calificación;
3. que cumple con los requerimientos de
prevención de incendios y licencia sanitaria;
4. que cumpla con la exclusión categórica o
cumplimiento ambiental aprobado:
5. que presente una recomendación de la Entidad
Gubernamental Concernida en la cual se
disponga que el permiso de uso para la
actividad propuesta cumple con los requisitos
aplicables y contenidos en la reglamentación
o ley que aplican la operación o actividad
propuesta.
Establecido lo anterior, es entonces necesario repasar
lo relacionado con los distritos clasificados como CR:
Conservación de Recursos, los cuales están cubiertos por la
Regla 6.1.23 del Reglamento Conjunto. Según la Sección
6.1.23.1 del cuerpo reglamentario antes citado, esta
clasificación de distrito tiene el propósito de “identificar
porciones de fincas cuyas características existentes deben
mantenerse y mejorarse”. De acuerdo con la Sección 6.1.23.2,
los usos propuestos en áreas de esta naturaleza tienen las
consideraciones especiales siguientes:
a. No se afecte la integridad ecológica de las
Áreas de Planificación Especial, Reservas
Naturales o Agrícolas o del Plan Sectorial o
se ocasione peligro a los recursos naturales,
históricos y culturales existentes.
CC-2023-0305 cons. CC-2023-0306 17
b. Se protejan las cuencas hidrográficas, áreas
costeras, de paisajes, dunas, áreas de
humedales, los canales de riego y desagües
existentes, para garantizar su utilidad como
abasto de agua.
c. No se afecte la productividad del suelo que
pueda existir en las inmediaciones.
d. Se deberá mantener, conservar, restaurar o
proteger el valor natural y ecológico de los
suelos, permitiendo actividades agrarias
cónsonas con el medio ambiente.
e. Se proteja la salud, seguridad y bienestar de
los ocupantes de la propiedad, así como de
propiedades limítrofes objeto de la solicitud
y que no se aumente el peligro de fuego.
f. No se menoscabe el suministro de luz y la
calidad del aire en la estructura a usarse u
ocuparse o las propiedades circundantes.
g. No ocasione reducción o perjuicio a los valores
de las propiedades establecidas en áreas
vecinas.
h. No se aumente el ruido o los niveles de sonido
permitidos por la reglamentación.
i. Se demuestre la viabilidad, adecuacidad y
conveniencia del uso solicitado.
j. Si ubican en áreas identificadas como de alta
y de muy alta susceptibilidad a deslizamientos
según el Mapa de Susceptibilidad a
Deslizamientos de Puerto Rico (Monroe, 1979) o
el instrumento sobre deslizamientos que esté
vigente; áreas con historial de deslizamientos
o que se encuentran identificadas como
depósitos de deslizamientos (Ql) según los
cuadrángulos geológicos del USGS.
k. Para los siguientes usos se deberá presentar
un estudio geotécnico certificado por un
ingeniero profesional que demuestre que la
obra propuesta no estará expuesta a un
deslizamiento o no causará inestabilidad en el
terreno aledaño o se presenten las medidas de
mitigación necesarias, utilizando las mejores
prácticas de la ingeniería:
1.Vivienda;
2. Infraestructura o instalaciones
críticas;
3. Actividades de movimiento de
tierra (cambios en la topografía)
que pongan en riesgo la estabilidad
del terreno; y
4. Toda nueva construcción.
CC-2023-0305 cons. CC-2023-0306 18
Finalmente, en lo que constituye el punto neurálgico de
esta disputa, la Sección 6.1.23.3 del Reglamento Conjunto
está dedicada a los usos permitidos dentro de distrito C-R
y, en lo que nos concierne, dispone lo siguiente:
El Distrito C-R permite usos tales como los
siguientes, siempre que no presenten conflictos
con la conservación del tipo o clase del recurso,
la estabilidad de los terrenos y mediante el
proceso de consulta de ubicación ante la Junta
Adjudicativa de la OGPe o Municipio Autónomo con
Jerarquía de la I a la III. (Énfasis suplido).
Tabla 6.78 – Usos permitidos en Distrito C-R
CATEGORÍA USO
Conservación Los siguientes usos
de Recursos siempre que no
conflijan con la
conservación del
recurso o la
estabilización de
los terrenos:
a. Instalaciones
recreativas y
ecoturísticas
b. Instalaciones
públicas
c. Agrícola, utilizando
las mejores
prácticas de manejo.
d. Usos agrícolas
utilizando las
mejores prácticas de
manejo,
principalmente,
actividades
relacionadas con la
agro-forestería y la
silvicultura,
también los cultivos
hortícolas y algunas
empresas pecuarias
compatibles, tales
como la apicultura y
la acuacultura.
e. Silvicultura
f. Edificios o
estructuras
determinadas en
CC-2023-0305 cons. CC-2023-0306 19
función de la
naturaleza de la
actividad a
realizarse, se
ubicarán en los
lugares donde
conlleve el menor
efecto adverso.
g. Instalaciones para
servicios de
infraestructura que
sean necesarias para
los usos permitidos.
h. Construcción de
estructuras
accesorias a los
usos permitidos.
i. Otros usos mediante
consulta de
ubicación ante la
Junta Adjudicativa
de la OGPe. (Énfasis
suplido).
Expuesto el Derecho pertinente, procedemos a discutir
su aplicación a esta controversia.
III
En su Alegato de la parte recurrente, el Municipio
reafirma que el ordenamiento jurídico le confiere cierta
autonomía con el fin de atender las necesidades particulares
de su ciudadanía y sus recursos, por lo que merece deferencia
por encima de la DRA, en especial porque a esta no le fue
delegada facultad alguna para interpretar el Reglamento
Conjunto. Arguye que la Sección 6.1.23.2 del cuerpo
reglamentario antes citado establece claramente que los usos
propuestos en áreas de conservación exigen estudios que son
incompatibles con el trámite ministerial.
CC-2023-0305 cons. CC-2023-0306 20
De forma similar, en su Alegato de la parte peticionaria,
los Vecinos del Sector Capó argumentan que el proyecto
propuesto por VVC no puede autorizarse de forma ministerial,
pues el uso deseado exige la evaluación de varios criterios
por tratarse de un área de conservación de recursos y por no
haber otra forma de garantizar que la actividad no presente
conflicto con ello. Alegan que la estructura donde se llevará
a cabo la actividad comercial es de naturaleza residencial,
como el resto de la comunidad, y que el proyecto propuesto
afectará el entorno y el terreno.
De su parte, tanto VVC como la OGPe reiteran en sus
respectivas comparecencias que el uso propuesto está
permitido en un predio de esta calificación, en particular
por tratarse de una operación ecoturística que se llevará a
cabo en una estructura existente en un terreno desarrollado.
Afirman que este procedimiento es enteramente ministerial con
criterios objetivos que no requiere trámite ulterior para la
concesión del permiso.
Según se relató, VVC presentó una solicitud de permiso
único para operar un negocio de actividades recreativas,
ecoturísticas y agrícolas en una finca ubicada en un distrito
clasificado como CR, es decir, de conservación de recursos.
Tras la intervención de los Vecinos del Sector Capó en el
asunto, la controversia se centró en la corrección de una
solicitud de esta naturaleza a través de un procedimiento
ministerial versus una consulta de ubicación.
CC-2023-0305 cons. CC-2023-0306 21
Al respecto, la OPU, cuya decisión es defendida por el
Municipio ante este Tribunal, concluyó que, en efecto,
procedía que se tramitara la solicitud a través de una
consulta de ubicación, pues actividades como las propuestas
por VVC podían ser autorizadas en distritos CR solo cuando
no presentaran conflictos con la conservación del tipo del
recurso o la estabilidad de los terrenos. Sin embargo, la
DRA, cuya postura está siendo defendida por la OGPe ante nos,
revocó tal raciocinio tras concluir que el Reglamento
Conjunto enumeraba los usos permitidos ministerialmente en
distritos CR, entre estos las actividades recreacionales,
ecoturísticas y agroturísticas, las cuales no confligirían
con la conservación del recurso y la estabilización del
terreno.
Como puede notarse, ambas agencias interpretaron la
Sección 6.1.23.3 del Reglamento Conjunto de formas
diametralmente opuestas: mientras que la OPU determinó que
el lenguaje de tal sección dispone que la concesión de un
permiso para tales actividades requiere que se demuestre que
estas no presentarán un conflicto con la conservación del
tipo o clase del recurso o con la estabilidad de los terrenos
mediante una consulta de ubicación, la DRA arribó a la
conclusión de que ese mismo lenguaje indicaba los usos que
requerían consulta de ubicación y los que no, estando los
propuestos por VVC en esta última categoría.
CC-2023-0305 cons. CC-2023-0306 22
En esta coyuntura es necesario revisitar la letra de la
Sección 6.1.23.3 del Reglamento Conjunto, la cual tiene como
preámbulo lo siguiente:
El Distrito C-R permite usos tales como los
siguientes, siempre que no presenten conflictos
con la conservación del tipo o clase del recurso,
la estabilidad de los terrenos y mediante el
proceso de consulta de ubicación ante la Junta
Adjudicativa de la OGPe o Municipio Autónomo con
Jerarquía de la I a la III.
Nótese, en primer lugar, que este párrafo introductorio
no contiene la palabra “ministerial”, sino que meramente
indica que los usos que serán identificados a continuación
pueden llevarse a cabo en distritos CR. Por cierto, es
evidente que tales usos no representan un listado taxativo
debido a las palabras “tales como los siguientes” en el
párrafo introductorio y, en el inciso (i) de la Tabla 6.78,
“[o]tros usos mediante consulta de ubicación ante la Junta
Adjudicativa de la OGPe”. No cabe duda, pues, que se trata
de una lista con ejemplos de lo que podría, potencialmente,
ser autorizado en un terreno con esta clasificación. De hecho,
cabe señalar, además, que una lectura de la totalidad de la
Regla 6.1.23 del Reglamento Conjunto, la cual está dedicada
al distrito C-R, falla en revelar tan siquiera una instancia
en la que se indique que los usos desglosados en la Tabla
6.78 conllevan la concesión de un permiso de forma
ministerial. Esto contrasta con otras secciones en las que
CC-2023-0305 cons. CC-2023-0306 23
específicamente se indica que pueden concederse permisos de
forma ministerial.4
En segundo lugar, la concesión del permiso para tales
usos está sujeto a que no se vea afectada la conservación del
recurso o el terreno. Esto va de la mano con los numerosos
factores que deben tomarse en consideración al momento de
evaluar los usos propuestos en un distrito C-R, los cuales
están consignados en la Sección 6.1.23.2 del Reglamento
Conjunto que fue transcrita previamente. A juicio de este
Tribunal, esta serie de factores, por su cantidad y
complejidad, no pueden tomarse en consideración conforme lo
exige el Reglamento Conjunto mediante un procedimiento
objetivo y autómata como lo es la expedición de permisos
ministerialmente.
Es precisamente por ello que la parte final del preámbulo
a la Tabla 6.78 lee como sigue: “y mediante el proceso de
consulta de ubicación ante la Junta Adjudicativa de la OGPe o
Municipio Autónomo con Jerarquía de la I a la III”.
Entiéndase, surge con claridad de este lenguaje que no se
trata de una alternativa o la otra, o, conforme sugieren la
OGPe y VVC, que cada uno de los requisitos corresponde a
partes diferentes de la lista. Es más bien un copulativo que
4A
modo de ejemplo, así lo disponen claramente la
Sección 6.1.16.1 sobre distritos I-P y la Regla 6.2.1 sobre
áreas no calificadas del Reglamento Conjunto.
CC-2023-0305 cons. CC-2023-0306 24
exige la presencia de ambos requisitos.5 Es decir, debe
concluirse que la intención manifiesta fue exigir el
cumplimiento de ambos requisitos previo a permitir uso alguno
en un distrito de calificación CR: demostrar que no se vea
afectada la conservación del recurso o el terreno y llevar a
cabo una consulta de ubicación.
Lo que es más, el 12 de abril de 2023, la Junta de
Planificación emitió un documento en respuesta a la petición
5Para ilustrar la distinción entre un copulativo y un
disyuntivo, recurrimos al Prof. Jorge Farinacci Fernós, quien
en su obra Hermeneútica Puertorriqueña: Cánones de
Interpretación Judicial explica que:
Por vía de un copulativo, se conectan dos o más
expresiones. En términos normativos, esto significa
que hace falta que todas las instancias conectadas
estén presentes para que la norma aplique. Mediante
un disyuntivo, se separan dos expresiones o más. En
términos normativos, esto significa que será
suficiente que ocurra una de las instancias
mencionadas para que la norma aplique.
Por lo tanto, si la norma lee: “Está prohibido guiar
y beber”, debe de partirse de la premisa que lo que
está prohibido es guiar y beber, es decir, hacer
ambas actividades a la vez. Si queremos prohibir
ambas conductas separadamente, lo correcto sería
decir “Está prohibido guiar o beber”, “Están
prohibidos guiar y beber” o “No se puede guiar ni
beber”. En el primer ejemplo, el disyuntivo “o”
establece claramente que cualquiera de las dos
conductas está prohibida. En el segundo ejemplo, el
uso del plural da a entender que la prohibición
alcanza todas las instancias mencionadas en la
norma. En el tercer ejemplo, el uso del negativo
“ni” señala que la prohibición es para ambas
conductas separadamente. J. Farinacci Fernós,
Hermenéutica Puertorriqueña: Cánones de
Interpretación Jurídica, Puerto Rico, Editorial
Interjuris, Editorial de la Universidad
Interamericana de Puerto Rico, págs. 117-118.
CC-2023-0305 cons. CC-2023-0306 25
de consulta que efectuaron los Vecinos del Sector Capó el 31
de enero de 2023 con respecto a la sección del Reglamento
Conjunto en disputa. En lo pertinente, esta explica lo
siguiente:
1. El párrafo introductorio dispone que “el distrito
CR permite usos tales como los siguientes, …”; lo
que es indicativo de que el listado de la Tabla
6.78 es uno numerus apertus.
2. Dicho párrafo introductorio dispone como
condición, que los usos desglosados en la Tabla
6.78 se permitirán, “siempre que no presenten
conflictos con la conservación del tipo o clases
de recursos,” y “la estabilidad de los terrenos…”
Esta salvedad se repite en la Sección de Usos de
la Categoría CR. En la Categoría Conservación de
Recursos de Cuenca (CRC), se incluyen condiciones
adicionales. Por lo anterior, resulta evidente
que todo uso propuesto requiere un análisis de
las circunstancias ambientales y físicas para
determinar si una propuesta es o no viable.
3. Tanto en el párrafo introductorio como en las
secciones de los usos permitidos para cada
categoría del CR, se dispone que los usos
permitidos se evaluaran mediante el proceso de
Consulta de Ubicación, por lo que se excluyen los
usos ministeriales.6 (Énfasis suplido).
El valor de tal interpretación en esta controversia no
puede ser subestimado. Después de todo, en Fideicomiso de
Conservación de Puerto Rico y Para la Naturaleza, Inc. v.
ELA, 211 DPR 521 (2023), indicamos la importancia de la Junta
de Planificación en la creación, desarrollo y aprobación del
Reglamento Conjunto.7 Por ende, la postura de la Junta de
6Apéndice de Recurso de revisión judicial, págs. 94-95.
7Al respecto, pronunciamos que “queda claro que la
Asamblea Legislativa le delegó específicamente a la Junta de
Planificación de Puerto Rico la facultad de adoptar el
Reglamento Conjunto de 2020”, lo cual no podía interpretarse
CC-2023-0305 cons. CC-2023-0306 26
Planificación en lo que concierne al Reglamento Conjunto debe
ser tomada en consideración por este Tribunal. Además,
resáltese que la interpretación de la Junta de Planificación
es cónsona con la conclusión a la que hoy arribó este Tribunal
al analizar con detenimiento el lenguaje claro e inequívoco
de la Sección 6.1.23.3 del Reglamento Conjunto.
En conclusión, el texto de la sección reglamentaria en
cuestión no deja espacio para dudas sobre la procedencia de
una consulta de ubicación previo a la obtención de un permiso
para llevar a cabo alguno de los usos enumerados en la Sección
6.1.23.3 del Reglamento Conjunto por tratarse específicamente
de un terreno en distrito C-R. Toda vez que, en este caso,
VVC solicitó y la DRA concedió el permiso de uso por la vía
ministerial en contraste con las instrucciones patentes del
Reglamento Conjunto, corresponde a este Tribunal invalidar
el permiso otorgado con el fin de que se canalice su petición
a través del trámite que exige el cuerpo reglamentario
imperante.
“de otra manera, pues más patente no puede ser la delegación
allí dispuesta.” A esto se sumó “que el estatuto: (a) faculta
a la Junta de Planificación a establecer el mecanismo que
regirá el proceso de la preparación del Reglamento Conjunto;
(b) dispone que las enmiendas parciales al reglamento
propuestas por la OGPe o las otras entidades gubernamentales
serán finalmente aprobadas por la Junta de Planificación, y
(c) le confiere la autoridad a la Junta de Planificación de
oponerse a disposiciones que se propongan incluirse en el
reglamento si no está de acuerdo. 23 LPRA sec. 9025. Todos
estos elementos indican que, además de gozar de la facultad
de adoptar el Reglamento Conjunto, la Junta de Planificación
también ejerce amplio control sobre el proceso de su
preparación”. Fideicomiso de Conservación de Puerto Rico y
Para la Naturaleza, Inc. v. ELA, supra.
CC-2023-0305 cons. CC-2023-0306 27
IV
Por los fundamentos antes expresados, se revocan las
determinaciones de la División de Revisiones Administrativas
de la Oficina de Gerencia de Permisos y el Tribunal de
Apelaciones. Por consiguiente, se restablece la orden de
archivo de la Oficina de Permisos Urbanísticos del Municipio
Autónomo de Guaynabo por ser improcedente la solicitud de
permiso por la vía ministerial.
Se dictará Sentencia de conformidad.
Luis F. Estrella Martínez
Juez Asociado
EN EL TRIBUNAL SUPREMO DE PUERTO RICO
Marisol Capote Rivera, Carlos
Leyva y la Sociedad de Bienes
Gananciales compuesta entre
ambos; José Orlando Santiago
Rodríguez y Ya-O-Ming Rondón
Rodríguez; Julio Enrique Muñoz
Ponce de León y Karla Mariel
Silva Martínez; Carlos Ismael
Rivera Lezcano y Raiza Centeno
Pagán; Carmen Milagros Delgado
García; Enrique Manuel Ferrer
Urbina; Heriberto Ocasio Burgos
y Elizabeth Texidor de Jesús,
Nivea Rebecca Fraticcelli
Espada; Sheila Ana Sánchez
Castro; Jorge C. Suárez Castro;
David John Dávila Pagán
Recurridos
v.
Voilí Voilá Corporation; David
Chaymol; OGPE
CC-2023-0305
Recurridos cons. con Certiorari
CC-2023-0306
Municipio Autónomo de Guaynabo;
Oficina de Permisos Urbanísticos
Peticionarios
Marisol Capote Rivera, Carlos
Leyva y la Sociedad de Bienes
Gananciales compuesta entre
ambos; José Orlando Santiago
Rodríguez y Ya-O-Ming Rondón
Rodríguez; Julio Enrique Muñoz
Ponce de León y Karla Mariel
Silva Martínez; Carlos Ismael
Rivera Lezcano y Raiza Centeno
Pagán; Carmen Milagros Delgado
García; Enrique Manuel Ferrer
Urbina; Heriberto Ocasio Burgos
y Elizabeth Texidor de Jesús,
Nivea Rebecca Fraticcelli
Espada; Sheila Ana Sánchez
CC-2023-0305 cons. CC-2023-0306 29
Castro; Jorge C. Suárez Castro;
David John Dávila Pagán
Peticionarios
v.
Voilí Voilá Corporation; David
Chaymol; OGPE
Recurridos
Municipio Autónomo de Guaynabo;
Oficina de Permisos Urbanísticos
Recurridos
Sentencia
En San Juan, Puerto Rico, a 26 de marzo de 2024.
Por los fundamentos expuestos en la Opinión que
antecede, la cual se hace formar parte íntegra de la
presente Sentencia, se revocan las determinaciones de la
División de Revisiones Administrativas de la Oficina de
Gerencia de Permisos y el Tribunal de Apelaciones. Por
consiguiente, se restablece la orden de archivo de la
Oficina de Permisos Urbanísticos del Municipio Autónomo de
Guaynabo por ser improcedente la solicitud de permiso por
la vía ministerial.
Lo acordó el Tribunal y certifica el Secretario del
Tribunal Supremo.
Javier O. Sepúlveda Rodríguez
Secretario del Tribunal Supremo
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"1",
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"5",
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Law
9957314
[SEGMENT 1]
2024 IL App (2d) 230103-U
No. 2-23-0103
Order filed June 20, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 19-CF-1056
)
MARK RIVERA, ) Honorable
) John A. Barsanti,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court.
Justices Schostok and Birkett concurred in the judgment.
ORDER
¶1 Held: (1) The State proved beyond a reasonable doubt that defendant committed the
charged sex offenses against the victim, and convictions for predatory criminal
sexual assault and aggravated criminal sexual abuse do not violate the proportionate
penalties clause.
¶2 After a bench trial, defendant, Mark Rivera, was convicted of two counts of predatory
criminal sexual assault of a child, a Class X felony (720 ILCS 5/11-1.40(a)(1), (b)(1) (West 2018))
with a sentencing range of 6 to 60 years’ imprisonment (id. § 11-1.40(b)(1)), and one count of
aggravated criminal sexual abuse, a Class 2 felony (id. § 11-1.60(c)(1)(i), (g)) with a sentencing
range of 3 to 7 years’ imprisonment (730 ILCS 5/5-4.5-35(a) (West 2018)). He was sentenced to 2024 IL App (2d) 230103-U
six years’ imprisonment for each conviction of predatory criminal sexual assault of a child and
three years for aggravated criminal sexual abuse, all sentences to run consecutively. On appeal,
defendant contends that (1) he was not proved guilty beyond a reasonable doubt and (2) his
sentences for predatory criminal sexual assault of a child must be vacated and the matter remanded
for Class 2 felony resentencing because that offense, as charged, was based on the same elements
as aggravated criminal sexual abuse yet had carried a more severe penalty, thus violating the
proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). We affirm.
¶3 I. BACKGROUND
¶4 The State indicted defendant on 10 charges, all based on events occurring between June 9,
2018, and May 21, 2019, and involving E.M. Counts I through III alleged predatory criminal sexual
assault of a child, and counts IV through X alleged aggravated criminal sexual abuse. Each count
alleged that defendant committed the act for his sexual gratification and that, at the time, he was
at least 17 years of age and E.M. was under 13 years of age. Counts I through III alleged that
defendant knowingly made “contact” between “a part of [his] body” and E.M.’s “sex organ.”
Counts IV, V, VI, and IX alleged that defendant knowingly “touched the vagina of E.M.” Counts
VII and VIII alleged that defendant knowingly touched E.M.’s breasts. Count X alleged that
defendant knowingly “pressed his penis against the body of E.M.” The counts provided no
differentiating detail aside from identifying the body parts involved.
¶5 At trial, E.M. testified as follows. She was born on June 9, 2009, and resided with her
mother, Cherin L., her stepfather, James L., and her younger brothers, A.M. and B.L. She had
known defendant and his family all her life; spent much time with them at her home and theirs;
was close to defendant’s daughter, A.R., who was around her age; and knew his older children,
[CITATION]
L.R., M.R, and D.R. E.M. identified photographs of her home’s living room and defendant’s
home’s living room, kitchen, and basement. The photographs were admitted into evidence.
¶6 E.M. testified to three separate incidents in which defendant touched her inappropriately.
She could not recall how old she was or what grade she was in at the time of the first incident. It
happened in defendant’s living room. Defendant and D.R. were sitting at a table playing “Settlers,”
a board game. A.R. was present. While E.M. sat on defendant’s lap, he reached under the table,
put his hand inside her underwear, and rubbed her vagina. E.M. felt a “bump under where [she]
was sitting” but did not know what it was.
¶7 E.M. described another incident, which occurred when she was nine. She was in the kitchen
of defendant’s home with A.M., A.R., and D.R. She did not know if defendant’s other children
were there. Defendant asked her to come downstairs with him to the “man cave.” Just the two of
them went downstairs. When she and defendant went inside the man cave, they were alone. At
defendant’s request, E.M sat on defendant’s lap. Defendant placed his hand under her clothes and
rubbed her chest and vagina. He stopped when James opened the door to the man cave.
¶8 E.M. testified about another incident when she was nine years old. Cherin was pregnant
with B.L. Defendant and his children visited E.M.’s family and watched a Bears game in the living
room. There was a couch between two chairs. Cherin sat in the rocking chair, and defendant sat in
the other chair with E.M. on his lap. All four of defendant’s children were sitting on the couch.
Defendant placed his hand under E.M.’s clothes and rubbed her breasts and vagina. He stopped
when A.R. asked E.M to play outside. E.M. got up and left.
¶9 E.M. testified on cross-examination as follows. Defendant’s children were homeschooled
and were generally home when E.M. and A.M. visited. The basement included the man cave and
2024 IL App (2d) 230103-U
bedrooms for L.R. and M.R., the oldest children. The living room had a loft where A.R. and D.R.
had bunk beds.
¶ 10 E.M. testified that, in 2018 and 2019, she often sat on defendant’s lap. She recalled that on
“the day *** that something bad happened to [her]” in defendant’s living room, defendant and
D.R. were playing Settlers, and A.R. was lying on the floor doing a puzzle. A.M. might have been
there. Defendant’s wife, Melissa, was in the kitchen, where she could see part of the living room.
E.M. did not recall whether either L.R. or M.R. was home that day. When defendant touched her
vagina that day, he did not remove or unbutton her pants or remove her underwear. He did not
touch her breasts.
¶ 11 E.M. did not recall whether M.R. was in his room during the man cave incident. She did
not believe that L.R. was home. Defendant did not speak while he touched E.M. and did not tell
her to keep the incident a secret. The man cave was well-lit.
¶ 12 E.M. testified that it was light outside during the Bears game. She and the other children
were in and out of the room numerous times. James, L.R., and M.R. sat on the couch, as did the
other children when they were watching the game. Cherin was also in the room. When E.M. sat
on defendant’s lap, they were not covered by a blanket. He touched her vagina without pulling
down her pants or underwear.
¶ 13 On redirect and recross examinations, E.M. testified that Melissa was in the kitchen when
defendant touched her during the Settlers game. Melissa sometimes walked from the kitchen
through the living room to her and defendant’s bedroom.
¶ 14 James testified as follows. He met defendant and his family through their church and, until
May 2019, saw him once or twice weekly. Defendant and his family often visited on Sundays or
weekdays to watch recorded Bears games. James was generally absent during the weekday visits.
2024 IL App (2d) 230103-U
¶ 15 James testified that, in 2019, he sometimes dropped off E.M. at defendant’s house and
picked her up later. On February 2, 2019, he went to pick up E.M. and A.M. He saw that D.R.,
A.R., and A.M. were in the living room, but E.M. was not. James went looking for her. Eventually,
he opened the door to the man cave. Defendant was sitting on a chair with E.M. on his lap. Nobody
else was there. James told E.M. to get out and join the other children. James testified that Cherin
had previously asked defendant to “ [‘]model better boundaries for [E.M.][’] ” After E.M. left the
[SEGMENT 2]
man cave, James asked defendant, “ [‘][H]ow is this modeling better boundaries having her down
here alone with you?[’] ”
¶ 16 On cross-examination, James testified that, on February 2, 2019, the door to the man cave
was not locked. The room was well-lit. After James entered, E.M. said nothing that concerned him.
During the football viewings, James, L.R., and M.R. usually sat on the couch and Cherin sat in the
chair on the other side of the couch from defendant. The small children went in and out of the
living room, and the other people would get up for food or to go to the bathroom. James saw E.M.
sit on defendant’s lap sometimes, but they were never covered by a blanket. Nothing obstructed
James’s view of E.M.’s body. He never saw defendant’s hands in E.M.’s pants or inside the front
of her shirt, although he scratched her back under her shirt.
¶ 17 F.F. testified as follows. L.R. was her best friend. In November or December 2016, they
attended a movie with F.F.’s brother, defendant, and M.R. Defendant was on F.F.’s left in the
darkened theater. At one point, F.F. was holding a bowl of popcorn to pass around. Defendant put
his hand between her legs and moved it slowly and firmly up over her clothes. She crossed her
legs. Defendant withdrew his hand and mumbled something about the popcorn bowl.
¶ 18 Cherin testified as follows. In 2018 and 2019, she saw defendant every week at church on
Sunday and frequently during the week. Cherin had had no reason to distrust defendant when she
======= Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'People v. Johanson', which should be replaced with `[CITATION]`. 2024 IL App (2d) 230103-U
dropped off her children at his home. E.M. often sat on defendant’s lap. Cherin and defendant were
usually the only adults present during the football games. In February 2019, when she was
pregnant, Cherin often napped during the games.
¶ 19 Cherin testified that, on May 17, 2019, she drove to defendant’s home to pick up E.M. and
A.M. When they got home, E.M. told Cherin that defendant had been touching her that night.
Cherin asked where; E.M. responded, “ [‘]on my vagina,[’] ” and put her hand over that area. E.M.
said that it had happened previously. The next day, E.M. told Cherin that similar things had
happened at E.M.’s home and in the man cave at defendant’s home. Based on what E.M told her,
Cherin took E.M. to the Kane County Child Advocacy Center (Center).
¶ 20 Cherin testified on cross-examination that E.M. and A.R. often sat on defendant’s lap.
Defendant’s children were usually home when Cherin’s children visited. L.R.’s and M.R.’s
basement bedrooms had curtains for doors and walls that did not go to the ceiling, and M.R.’s
bedroom was five feet from the man cave. The living room was small, and people could mostly
see what others were doing. There was a doorway between the kitchen and the living room, but
there was no door, curtain, or other type of barrier in the doorway. Both rooms were a short walk
from the parents’ bedroom.
¶ 21 Cherin testified that she never saw defendant’s hands in E.M.’s pants or inside the front of
her shirt. When watching football, A.R. and E.M each spent some time sitting on his lap. Cherin
could not recall whether E.M. and defendant were ever covered by a blanket.
¶ 22 Beth Mullarkey, an investigator with the Center, testified that, on May 21, 2019, she
interviewed E.M. A video recording and transcript of the interview were admitted into evidence.
E.M. looked at anatomical diagrams and pointed to where defendant had touched her.
2024 IL App (2d) 230103-U
¶ 23 E.M. told Mullarkey that the first incident occurred at her home when she was nine. While
she sat on defendant’s lap as they watched the football game, he put his hand on her breasts under
her shirt. He also put his hand down the front of her underwear and “rub[bed] and then like g[ot]
in between everything.” E.M did not know whether anyone saw what he was doing. They were not
covered by a blanket. The touching lasted until A.R. called E.M. outside to play.
¶ 24 E.M. told Mullarkey that another incident occurred in defendant’s man cave while the other
younger children played outside. It lasted about 20 minutes. E.M. told Mullarkey: “[Defendant]
was just rubbing me all over like my shirt, and he was putting his hand under my underwear lots
of times. *** [Defendant’s hand was] rubbing and getting in between my thing.” A third incident
occurred while defendant was playing Settlers at his living room table with L.R., D.R., A.R., and
A.M. present. E.M. was sitting on defendant’s lap. He put his hand under her underwear and “like
rubbed.” E.M. did not believe anyone saw it, “[b]ecause it was under the table.” Afterward, E.M.
told Cherin what had happened. Until she spoke with Mullarkey, E.M. had not told anybody else
about the incident.
¶ 25 The State rested.
¶ 26 M.R. testified for the defense that he was born on July 21, 2002, and lived in defendant’s
home until 2021. The basement bedrooms had makeshift doors. The lock on the door to the man
cave was broken. While watching football at E.M.’s home, M.R. usually sat on the couch and had
a clear view of defendant, who sat in a chair next to the couch. E.M. often sat on defendant’s lap,
but M.R. never saw them sitting under a blanket. Defendant was an avid fan and would stand up,
move around, and yell a lot. M.R. never saw defendant touch E.M. inappropriately.
¶ 27 M.R testified that his family often played Settlers in the living room. The game used dice
and cards. Defendant was always both the “banker” and a player, so his hands were busy much of
2024 IL App (2d) 230103-U
the time. D.R. played regularly, L.R. played occasionally, and the younger children never did.
E.M. “[m]aybe” sat on defendant’s lap sometimes, but it would not be “stable ground to sit on” for
long. M.R. identified several photographs of the living room as it appeared during these games.
When defendant was playing, there was room to walk behind his chair. M.R. never saw defendant
touch E.M. inappropriately during these games. M.R. was asked: “[I]f you are playing the game
of Settlers, would you have been facing [defendant], looking into his direction or been able to see
his hands and his lap?” M.R. answered, “Yes. To play the game you need to.”
¶ 28 On cross-examination, M.R. testified that the man cave door was partially warped, so that
a person could see part of the room even when it was closed. James was sometimes home during
the football-watching gatherings. A typical Settlers game lasted 20 or 30 minutes. On redirect,
M.R. testified that he, Melissa, and L.R had access to the man cave and that the younger children
could also enter. M.R. spent a fair amount of time in his bedroom, where he could hear the younger
children playing around the house.
¶ 29 L.R testified as follows. She resided in defendant’s house until November 2020 and had
known E.M. since birth. L.R. was 18 or 19 when the events at issue occurred. The younger children
would be in and out of the living room during the football games. E.M. often sat on defendant’s
lap, sometimes without prompting. L.R usually sat on the couch and could see defendant and E.M.
clearly. She could not recall if they were covered by a blanket when E.M. sat on the defendant’s
lap. She never saw defendant touch E.M. inappropriately.
¶ 30 L.R. testified that, during Settlers games, defendant was always the banker, who “had a lot
of duties to do during the game.” Asked whether defendant’s hands were “always in motion during
the game,” L.R. testified, “Not always but consistently.” The younger children would be in and
out of the living room, sometimes under the table or on the floor. When E.M. was on defendant’s
2024 IL App (2d) 230103-U
lap, she “would *** be able to sit there for a long period of time,” but L.R could not recall whether
E.M. ever did. L.R. could see defendant’s hands during the Settlers games, and she never saw him
[SEGMENT 3]
put them under E.M.’s shirt or in her pants or otherwise touch E.M. inappropriately. L.R. identified
photographs of people playing Settlers in the living room as it was laid out in 2018 and 2019. In
the photographs, defendant was sitting in the same chair where L.R. recalled him sitting during the
games. Asked whether anything would have obstructed her view of defendant and his lap during
a game, L.R. testified, “The table. Nothing else I can think of.”
¶ 31 L.R. testified that, when defendant was in the man cave by himself, it “would *** be easy”
for another family member to go in and out of the room. L.R. sometimes went to the man cave to
use the computer. L.R. could not recall if the door to the man cave could be locked. If E.M. and
A.M. were in the basement, L.R. might be able to hear them from her room, but if they were in the
man cave with the door closed, probably not.
¶ 32 On cross-examination, L.R. testified that, during the football games, it was not unusual for
E.M. to sit on defendant’s lap. When E.M. did so, it would not distract L.R. from watching the
game.
¶ 33 D.R. testified as follows. He was 15 years old and had known E.M. for as long as he could
remember. During the period at issue, he and A.R. would often play with E.M. and A.M. On the
last day that he saw E.M., D.R. played Settlers with defendant and L.R. Defendant was the “banker
or dealer” and was busy during the game. A.R. and A.M. were in and out of the house. E.M. was
outside half the time and sitting on defendant’s lap the other half. Defendant gave E.M. math
problems to solve during the game. Defendant’s hands were on the table most of the time. Asked
whether he could see defendant’s lap and E.M.’s pants from his vantage point, D.R. testified,
“Mostly.” During the game, D.R. never saw defendant’s hands in E.M.’s pants, under the front of
2024 IL App (2d) 230103-U
her shirt, or otherwise touching her inappropriately. D.R. saw no inappropriate touching during
any Settlers game.
¶ 34 D.R. testified that he could enter and leave the man cave when defendant was in there.
While the football games were on at E.M.’s house, D.R. sometimes watched and sometimes went
elsewhere. When E.M sat on defendant’s lap, D.R. never saw him touch her inappropriately.
¶ 35 Melissa testified as follows. By 2019, she had known Cherin for about 10 years. She had
known E.M. and A.M. since they were born. Melissa identified photographs of the man cave, the
living room, and the kitchen as they appeared in 2018 and 2019. Anyone in the family could use
the man cave. The door did not lock. L.R. and M.R. had bedrooms downstairs, but the rooms did
not have doors. To walk from the kitchen through the living room and into her bedroom required
about 12 steps. The door between the kitchen and the living room was generally left open,
including during Settlers games. During the period at issue, E.M. and A.M. came over once or
twice a month to play or be babysat. Melissa was usually home then. She never saw defendant
touch E.M. inappropriately.
¶ 36 On cross-examination, Melissa testified that sometimes she was not home when Settlers
was being played. On May 17, 2019, she went to a prayer meeting with Cherin but came home
while family members were still seated around the game board. Cherin then took E.M. and A.M.
home.
¶ 37 After hearing arguments, the trial court issued a written decision, finding defendant guilty
of five counts (I, II, IV, V, and VII) and not guilty of the remaining five counts (III, VI, VIII, IX,
and X). The court explained that the State’s evidence established three main incidents: (1) the
football game incident in E.M.’s home, to which related one count of predatory criminal sexual
assault of a child (count III) and two counts of aggravated criminal sexual abuse (counts VI and
- 10 -
====== End of Document ====== 2024 IL App (2d) 230103-U
VIII); (2) the man cave incident in defendant’s home, to which related one count of predatory
criminal sexual assault of a child (count I) and two counts of aggravated criminal sexual abuse
(counts IV and VII); and (3) the board game incident in defendant’s home, to which related one
count of predatory criminal sexual assault of a child (count II) and two counts of aggravated
criminal sexual abuse (counts V and X). The court found that, although E.M. testified consistently
with her statements to Mullarkey, the State proved defendant’s guilt beyond a reasonable doubt as
to only the board game and man cave incidents.
¶ 38 The court explained that, although E.M. testified that defendant touched her vagina and
breasts while they watched football, the evidence showed that several people were in the room at
the time, they could easily see defendant and E.M., and defendant and E.M. were not covered by
a blanket. “Any person at any time would only need to turn their head to observe the abuse.” Thus,
the State had not proved any charges arising from this incident.
¶ 39 However, the trial court concluded that the State did prove beyond a reasonable doubt that
defendant had committed the offenses based on the man cave incident. The court noted that E.M.’s
testimony was corroborated by James’s testimony that he discovered defendant alone with E.M.
in the man cave with the door closed while the other people were elsewhere in the house.
¶ 40 Also, the State proved two of the charges (counts II and V) based on the board game
incident. The court reasoned that the table would have hidden from view defendant’s touching of
E.M.’s vagina. The court also noted that E.M. did not testify that he touched her chest—contact
that would not have been hidden. Further, E.M.’s account was corroborated by her prompt outcry
to Cherin. However, count X, based on the unspecified “bump” E.M. claimed to have felt while
she was on defendant’s lap, was not proved beyond a reasonable doubt. The court also found
- 11 - 2024 IL App (2d) 230103-U
defendant not guilty of count IX, a fourth alleged instance of aggravated criminal sexual abuse,
because no evidence was presented on it.
¶ 41 Defendant filed a posttrial motion, contending in part that he was not proved guilty beyond
a reasonable doubt. In denying the motion, the trial court explained that it acquitted defendant of
the charges based on the football game incident because the State provided no evidence that
defendant’s actions could have evaded notice. However, the evidence was stronger for the
convictions based on the man cave incident, during which defendant and E.M. were unobserved
until James opened the door and saw them together in circumstances that corroborated E.M.’s
testimony. The convictions based on the board game incident were also consistent with the context:
in contrast to the setting of the football game incident, the living room table obscured others’ view
of E.M.’s lower body (but, as noted, the court found that the State did not prove count X). Thus,
the court explained, the different findings were based on the different levels of corroboration for
E.M.’s testimony and statements to Mullarkey.
¶ 42 At sentencing, the trial court determined that counts IV and V were lesser included offenses
of, and therefore merged into, counts I and II. Therefore, the trial court imposed sentence on only
counts I, II, and VII. The court sentenced defendant to minimum prison terms of six years for each
conviction of predatory criminal sexual assault of a child (counts I and II) and three years for
aggravated criminal sexual abuse (count VII), all sentences to be consecutive. Defendant filed a
timely appeal.
¶ 43 II. ANALYSIS
¶ 44 A. Sufficiency of the Evidence
¶ 45 On appeal, defendant contends first that the evidence did not prove him guilty beyond a
reasonable doubt of any of the charges he was convicted of. Defendant argues that the evidence
- 12 - 2024 IL App (2d) 230103-U
the trial court relied on—primarily, E.M.’s testimony and out-of-court statements to Mullarkey—
was so inherently implausible that the court could not reasonably find that he committed the acts.
Principally, defendant argues that, had he committed the offenses, his actions could not have
escaped the notice of everyone present at the time. The State responds that defendant essentially
asks us to retry him and that the evidence was stronger than he portrays it.
¶ 46 In considering the sufficiency of the evidence, we ask only whether, after viewing the
evidence in the light most favorable to the prosecution, any reasonable fact finder could have found
the essential elements of the charged offense beyond a reasonable doubt. [CITATION]. The credibility of the witnesses and the weight to assign the evidence are
[SEGMENT 4]
within the prerogative of the fact finder. [CITATION]. We must
allow all reasonable inferences from the evidence in favor of the prosecution. [CITATION],
¶ 47 Defendant concedes much. He does not directly attack E.M.’s credibility. He grants that
her testimony was generally clear and consistent. Further, he suggests no motive for her to testify
falsely or selectively. We agree with the State that E.M. was consistent in her testimony and out-
of-court statements, both to Mullarkey about all of defendant’s acts and to her mother very shortly
after the board game incident. Further, the evidence allowed a strong inference that E.M. would
not have made such serious allegations against defendant unless she knew they were true. Their
families had had a close and harmonious relationship before the events at issue. E.M. and
defendant’s daughter A.R. had been dear friends for several years, and E.M. had long been fond
of defendant, often sitting on his lap without prompting.
- 13 - ====== Processed Part of a Court Ruling ======
2024 IL App (2d) 230103-U
¶ 48 Defendant nonetheless contends that other facts were so compelling as to require a
reasonable doubt of his guilt. We now examine the board game and man cave incidents to evaluate
the specifics of defendant’s arguments.
¶ 49 On the board game incident, defendant argues essentially that (1) he could not have been
so daring as to commit criminal acts around so many others who would have noticed his acts and
(2) because he was playing the board game, acting as the dealer, and giving E.M. math problems,
he had no opportunity to use his hands as E.M. described. We find neither argument compelling.
¶ 50 On (1), there was evidence from which the trial court reasonably found that the table
obscured the others’ view of defendant’s hands and E.M.’s lap, such that defendant was not so
reckless after all. E.M., who was (literally) in a position to know, testified that the table obscured
the others’ view of her lap. L.R. implicitly conceded that the table obscured her view of defendant’s
lap and E.M.’s lower body, and D.R. testified that he could “[m]ostly” see these areas. M.R.
testified that he would have been able to see defendant’s hands and lap while playing the game.
To the extent this testimony contradicted E.M., the court could credit her accounts over the others.
The court could also examine the table photographs and infer that defendant could conceal the
movement of his hands near E.M.’s lower body. Although defendant claims that the table was not
high enough to hide most of E.M.’s body, he provides no support for this assertion, and the record
does not disclose E.M.’s height at the time.
¶ 51 On (2), defendant likewise cites insufficient evidence to compel a reasonable doubt. Both
L.R. and D.R. testified that defendant’s hands were busy during the game, but their testimony,
even if credited, was not inconsistent with E.M.’s. Neither defense witness testified that
defendant’s hands were always in use above the table, but only that he used his hands
- 14 - 2024 IL App (2d) 230103-U
“consistently” (in L.R.’s description). The trial court could reasonably infer that there were pauses
sufficient to allow defendant to move one hand out of view to touch E.M.’s private area.
¶ 52 In sum, viewing the evidence in the light most favorable to the prosecution, we conclude
that defendant was proved guilty beyond a reasonable doubt of predatory criminal sexual assault
of a child and aggravated criminal sexual abuse in the board game incident. E.M.’s clear and
consistent statements, her lack of a motive to falsify, and the corroboration by her prompt
complaint to her mother far outweighed any countervailing evidence.
¶ 53 We turn to the man cave incident. Defendant raises essentially two challenges: (1) the
alleged act took place inside a room that was only a few feet from the older children’s bedrooms
and was accessible to anyone in the home, and (2) when James discovered defendant and E.M. in
the man cave, neither of them showed any sign that defendant had engaged in improprieties with
E.M.
¶ 54 Again, defendant argues that the trial court was obligated to discredit the straightforward
and consistent statements of a complaining witness who had no bias or motive to testify falsely.
Further, to the extent that defendant relies on circumstantial evidence, the circumstances largely
corroborated E.M.’s testimony.
¶ 55 The setting of the incident actually helped the trial court to infer that defendant’s actions
were neither reckless nor easy to discover. The court heard evidence that defendant went to the
kitchen, where the younger children were gathered, and specifically requested that E.M.
accompany him downstairs to the man cave. That conduct allowed a fair inference that defendant
had an improper purpose in mind and that what he intended was something to keep hidden. Further,
there was evidence not only that the smaller children were outside playing at the time (perhaps at
defendant’s suggestion) but also that L.R. was not home. There was no evidence that M.R. was
- 15 - 2024 IL App (2d) 230103-U
home, much less that he was in his bedroom. Moreover, M.R. testified that, with the door to the
man cave closed (albeit imperfectly because of a warped door), he would be unable to hear what
went on there. And, since E.M. was hesitant to complain to anyone about defendant’s conduct,
there was likely not much to be heard anyway.
¶ 56 Defendant’s second subargument is also unavailing. The trial court could reason that
defendant had either completed his offense before James arrived or heard someone coming and
withdrew his hands from their incriminating position. There was also evidence that he had
practiced this type of abuse (E.M. stated that he had done it on previous occasions) and would not
panic at the thought of being discovered.
¶ 57 We hold that defendant was proved guilty beyond a reasonable doubt of all three offenses.
¶ 58 B. Proportionate Penalties Claim
¶ 59 Defendant’s second claim of error is that his two Class X sentences for predatory criminal
sexual assault of a child (counts I and II) violate the proportionate penalties clause, which states,
“All penalties shall be determined both according to the seriousness of the offense and with the
objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Defendant
argues that, as charged, the two offenses contained the identical elements as the lesser-included
Class 2 offenses of which he was also found guilty (counts IV and V, charging aggravated criminal
sexual abuse). He concludes that this arbitrary disparity requires resentencing based on the Class
2 range. We disagree.
¶ 60 Recently, in [CITATION], our supreme court decided this precise
issue. The defendant in [CITATION] argued that predatory criminal sexual assault of a child and
aggravated criminal sexual abuse had identical elements because his acts, as charged, satisfied the
- 16 - 2024 IL App (2d) 230103-U
elements of both offenses. [CITATION] ¶ 15. The court interpreted defendant’s argument as an as-applied
challenge but explained that such a challenge is not appropriate under the identical elements test:
“The identical elements test compares the elements of two offenses to determine if the
offenses are the same. [CITATION.] This objective test does not consider the offenses as
applied to an individual defendant. [CITATION.] Rather, the question of whether the elements
of one offense are the same as those of another offense turns on that statutory language,
not the facts alleged in a particular case. *** That defendant’s acts in this case constituted
both offenses shows only that aggravated criminal sexual abuse may be a lesser included
offense of predatory criminal sexual assault of a child in some cases, but that does not make
the elements identical.” [CITATION] ¶ 16.
The court then determined that the two offenses did not have identical elements, because, unlike
predatory criminal sexual assault of a child, a person can commit aggravated criminal sexual abuse
without touching the victim’s sex organ or anus. [CITATION] ¶¶ 14, 17. Based on [CITATION], we reject
defendant’s proportionate penalties claim.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 63 Affirmed.
- 17 -
NOTICE
IL App (4th) 230284-U
This Order was filed under
FILED
Supreme Court Rule 23 and is May 31, 2024
NO. 4-23-0284
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
SEAN S., ) No. 20CF223
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
[SEGMENT 5]
JUSTICE TURNER delivered the judgment of the court.
Justices Lannerd and DeArmond concurred in the judgment.
ORDER
¶1 Held: Defendant’s 45-year sentence for predatory criminal sexual assault of a child was
not excessive and did not violate the proportionate penalties clause.
¶2 In 2020, the State charged defendant, Sean S., by information with seven counts
of predatory criminal sexual assault of a child, two counts of aggravated criminal sexual abuse,
one count of indecent solicitation of a child, one count of sexual exploitation of a child, and one
count of battery. The charges involved two minor victims. After a bench trial, the Livingston
County circuit court entered a written order finding defendant guilty of one count of indecent
solicitation of a child, one count of sexual exploitation of a child, one count of predatory criminal
sexual assault of a child, and one count of aggravated criminal sexual abuse. Defendant filed a
posttrial motion challenging the guilty findings. At a joint November 2022 hearing, the court
denied defendant’s posttrial motion and sentenced defendant to a 5 year prison term for indecent solicitation of a child, to run concurrently with consecutive prison terms of 45 years for
predatory criminal sexual assault of a child and 5 years for aggravated criminal sexual abuse.
Defendant filed a motion to reconsider his sentence, which the court denied.
¶3 Defendant appeals, contending his 45-year sentence for predatory criminal sexual
assault of a child (1) was excessive and (2) violates the proportionate penalties clause of the
Illinois Constitution (Ill. Const. 1970, art. I, § 11). We affirm.
¶4 I. BACKGROUND
¶5 Counts I through VI of the State’s September 2020 complaint each asserted
defendant committed predatory criminal sexual assault of a child between June 23, 2015, and
September 1, 2019, and the victim was C.J.M. (born in June 2009). [CITATION]. The other three charges alleged, between August 1, 2019, and August 15, 2020,
defendant committed indecent solicitation of a child ([CITATION]) (count
VII), sexual exploitation of a child ([CITATION]) (count VIII), and
battery ([CITATION]) (count IX) against N.R.C. (born in September 2005).
In its October 2020 supplemental information, the State charged, between May 1, 2017, and
September 5, 2019, defendant, who was 17 years of age or older, knowingly committed an act of
sexual contact, however slight, with N.R.C., who was under the age of 13, by placing his penis
on N.R.C.’s hand for the purposes of sexual gratification or arousal of N.R.C. or defendant
(count X). [CITATION]. The other two charges asserted, between May
1, 2017, and September 5, 2019, defendant committed aggravated criminal sexual abuse of
N.R.C. (counts XI and XII). [CITATION]). Later, at the State’s
request, the trial court dismissed counts VI, IX, and XII.
¶6 In January 2022, the trial court commenced a bench trial on the remaining charges
against defendant. The State presented the testimony of the following: (1) Jenny D., N.R.C.’s
mother; (2) N.R.C.; (3) Zachary Benning, a Livingston County sheriff’s detective; (4) C.J.M.;
(5) Amanda M., C.J.M.’s mother; (6) Dr. Channing Petrak, medical director of the Pediatric
Resource Center; (7) Megan Workman, a forensic interviewer at the McLean County Children’s
Advocacy Center, and (8) Ryleigh K., N.R.C.’s friend. Defendant testified on his own behalf
and presented the testimony of the following: (1) Robert S., his father; (2) Dianna S., his
mother; and (3) Renee D., Jenny’s sister. The evidence relevant to the issues on appeal follows.
¶7 Jenny testified Renee had dated defendant and had two children with him. At the
time of trial, Jenny had known defendant for seven years and had considered him family until
August 2020. On August 21, 2020, N.R.C. approached Jenny and spoke with her. She was
crying and “kind of shaky.” After their conversation, an altercation occurred between Matt C.,
N.R.C.’s father, and defendant. The police were then called. Jenny had considered defendant
family and trusted him with N.R.C. In early 2017, defendant and Renee had helped Jenny and
Matt switch bedrooms in their home. Between May 2017 and September 2019, N.R.C. would
spend the night with defendant, Renee, and defendant’s daughter, C.J.M. Jenny testified N.R.C.
never liked being alone with defendant and had expressed not liking him.
¶8 N.R.C. testified, while her parents were moving things around the house, several
incidents took place between her and defendant. N.R.C. was in fourth grade at the time. During
the first incident, defendant put his hand down her jeans and touched her butt beneath her
underwear while she stood in the kitchen. The second incident occurred when N.R.C. and
defendant were in a bedroom. There, defendant told her to look down the laundry chute. When
she did so, defendant put his hand on her butt over her clothes. The third incident took place
when N.R.C. was sitting alone in the living room and could see the doorway to the bathroom.
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'People v. Johanson', which should be replaced with `[CITATION]`. Defendant opened the door to the bathroom and had his penis out. N.R.C. explained defendant’s
pants were down around his thighs and she could see his penis. N.R.C. testified defendant “was
playing with it,” which she described as “kind of like swinging it around.” Defendant chased her
with his penis in his hands, and she ran under the dining room table. Defendant told her it was
okay to touch his penis. Defendant tried getting N.R.C. to touch his penis. Eventually, he
returned to the bathroom. Last, defendant touched her butt over her nightgown when he was
playfully throwing her on the couch. N.R.C. testified other children were present during the last
incident.
¶9 N.R.C. testified about other occasions in which she observed defendant’s penis.
One time was at defendant’s home in Odell, Illinois, which, like her house, had a bathroom near
the living room. N.R.C. again saw defendant standing in the doorway of the bathroom with his
pants down and playing with his penis. N.R.C. also testified about a time defendant took N.R.C.
and her friend Ryleigh on a golf cart ride. Defendant would only let her drive the golf cart if she
sat on his lap. As she went to sit down, N.R.C. saw defendant’s penis was partially sticking out
of the top of his shorts. N.R.C. sat in front of defendant, and defendant used his hands to help
her guide the golf cart. Additionally, N.R.C. testified about a time she saw defendant with his
penis out of his shorts while sitting on a couch. Another time, she observed defendant playing
with his penis while he sat on a staircase. At that time, defendant was going back and forth with
his hand on his penis.
¶ 10 On another occasion at her house, N.R.C. was trying to sleep on the couch.
N.R.C. had her back to the couch and her hands near her face. Defendant was helping her father
with something and came into the room with his penis out. N.R.C. was pretending to sleep and
had her eyes partially opened. N.R.C. saw defendant with his hand on his penis and he was
messing with it. Defendant then rubbed his penis back and forth along the back of her fingers.
According to N.R.C., the encounter lasted a couple of minutes and ended when her father called
out to defendant.
¶ 11 Moreover, N.R.C. testified about a time she was taking a shower in defendant’s
home in Odell, and he walked into the bathroom with his cell phone. N.R.C. saw a flash and
assumed defendant had taken a photograph of her. She also testified about a time defendant
showed her a pornographic video of him and her aunt Renee.
¶ 12 N.R.C. did not tell her parents about the incidents because defendant threatened
her. N.R.C. first told a friend and C.J.M. about the incidents. In August 2020, she told her aunt
Renee and her mother about the incidents with defendant. N.R.C. attended eighth grade in 2020,
and the incidents all happened before seventh grade because she stopped going to defendant’s
home when she entered seventh grade.
¶ 13 Renee, defendant’s witness, testified she could not “put a number on” the times
defendant was around N.R.C. because Renee would visit Jenny frequently. Most of the time
when defendant was with N.R.C., Renee, her children, N.R.C.’s parents, and N.R.C.’s siblings,
once they were born, were also present. She did not recall if defendant helped Jenny and Matt
[SEGMENT 6]
move furniture in 2017. Renee testified N.R.C. would come over to her and defendant’s home.
She was not present all of the time when defendant was with N.R.C.
¶ 14 Defendant testified he had known N.R.C. since 2013 and denied ever being alone
with her. He recalled helping Jenny and Matt move furniture around their home. Except for
breaks to smoke cigarettes, he and Matt worked continuously. Defendant denied touching
N.R.C.’s butt that day. He also denied exposing his penis to N.R.C. and asking her to touch it.
Defendant further testified he was never without Renee on the golf cart if children were riding in
it.
¶ 15 In rebuttal, Ryleigh testified defendant would let her and N.R.C. drive the golf
cart when no other adults were in it.
¶ 16 On July 29, 2022, the trial court entered a written order finding defendant guilty
of all of the remaining counts involving N.R.C. (counts VII, VIII, X, XI). The court found
defendant not guilty of the counts related to C.J.M. Defendant filed a posttrial motion
challenging the guilty findings.
¶ 17 At a joint hearing on November 30, 2023, the trial court denied defendant’s
posttrial motion. As to sentencing, the State presented the presentence investigation report, a
victim impact statement by Jenny, and the testimony of Detective Benning. The presentence
investigation report showed defendant was 31 years of age and had felony convictions for
carrying/possessing firearms at school, possession of a controlled substance, and retail theft. He
also had misdemeanor convictions for criminal trespass to a vehicle, theft, and criminal sexual
abuse. In Jenny’s victim impact statement, she noted defendant’s actions had impacted her,
Matt, N.R.C., and the extended family. As to N.R.C., Jenny noted, “She has shut herself off
from family.” She also stated N.R.C. has been “traumatized.”
¶ 18 Detective Benning testified, during the course of his investigation of the charges
in this case, he learned defendant was a registered sex offender. As such, defendant had to
register where he was staying if he was gone for more than three nights from his registered
address. The police went to defendant’s registered address every day from August 28 to
September 1, 2022, looking for him, and defendant was not present and had not registered a new
address. On September 1, 2022, defendant’s father was interviewed and told police, on August
28, 2022, defendant had left his vehicle with him and stated he was going on vacation. Detective
Benning also learned of a possible solicitation of a murder for hire by defendant. An inmate in
the county jail told Detective Benning defendant had asked him if he knew a hit man. Defendant
asked additional questions about the hit man and indicated he “wanted to take care of one of his
baby mamas.” An undercover cop posed as the hit man and recorded his conversations with
defendant. Detective Benning recognized defendant’s voice on the recordings and heard
defendant indicate it was Renee he wanted “taken out.” Defendant gave his fellow inmate a map
drawn by him of Renee’s residence. The undercover cop received $500 from a Walmart-to-
Walmart transfer, allegedly from defendant. When questioned by Detective Benning about the
murder-for-hire plot, defendant replied he only stated he wanted Renee killed because the inmate
had threatened to hurt defendant’s children if he did not say that or transfer the money.
¶ 19 Defendant presented eight character letters and made a statement in allocution. In
his statement in allocution, defendant persisted in claiming his innocence and emphasized he was
hard-working and a family man. He described his children as his “world.” He apologized to
everyone who had been a part of the proceedings.
¶ 20 After hearing the parties’ arguments, the trial court sentenced defendant to 5
years’ imprisonment for indecent solicitation of a child, to run concurrent with consecutive
prison terms of 45 years for predatory criminal sexual assault of a child and 5 years for
aggravated criminal sexual abuse. Since the sexual exploitation of a child count was a
misdemeanor, the court only entered a judgment of conviction on that count. Defendant filed a
motion to reconsider his sentence arguing his sentence was excessive because the court
improperly considered an alleged subsequent crime. After a March 29, 2023, hearing, the court
denied the motion to reconsider noting the subsequent solicitation of murder charge was not a
significant factor in sentencing. The court explained it had referenced the murder-for-hire plot in
regard to defendant’s credibility.
¶ 21 On March 29, 2023, defendant filed a timely notice of appeal in sufficient
compliance with Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021). Accordingly, this court
has jurisdiction of defendant’s appeal under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013).
¶ 22 II. ANALYSIS
¶ 23 A. Excessive Sentence
¶ 24 We first address defendant’s contention his 45-year sentence for predatory
criminal sexual assault of a child was excessive. The State disagrees.
¶ 25 The Illinois Constitution mandates “[a]ll penalties shall be determined both
according to the seriousness of the offense and with the objective of restoring the offender to
useful citizenship.” Ill. Const. 1970, art. I, § 11. In sentencing a defendant, the circuit court
must consider a number of statutory aggravating and mitigating factors. See 730 ILCS 5/5-5-3.1,
5-5-3.2 (West 2022). However, “the seriousness of an offense is considered the most important
factor in determining a sentence.” [CITATION]
¶ 26 With excessive sentence claims, this court has explained appellate review of a
defendant’s sentence as follows:
“A trial court’s sentencing determination must be based on the particular
circumstances of each case, including factors such as the defendant’s credibility,
demeanor, general moral character, mentality, social environment, habits, and
age. [Citations.] Generally, the trial court is in a better position than a court of
review to determine an appropriate sentence based upon the particular facts and
circumstances of each individual case. [Citation.] Thus, the trial court is the
proper forum for the determination of a defendant’s sentence, and the trial court’s
decisions in regard to sentencing are entitled to great deference and weight.
[Citation.] Absent an abuse of discretion by the trial court, a sentence may not be
altered upon review. [Citation.] If the sentence imposed is within the statutory
range, it will not be deemed excessive unless it is greatly at variance with the
spirit and purpose of the law or is manifestly disproportionate to the nature of the
offense. [Citation.]” (Internal quotation marks omitted.) [CITATION]
See also [CITATION] The
sentencing range for predatory criminal sexual assault of a child is 6 to 60 years’ imprisonment
(720 ILCS 5/11-1.40(b)(1) (West 2022)). Thus, defendant’s 45-year prison sentence was within
the proper statutory range.
¶ 27 Defendant asserts his 45-year sentence is excessive because (1) it is grossly
disproportionate to the seriousness of the offense, (2) the trial court gave inadequate
consideration to the evidence in mitigation, (3) the court placed undue weight on deterrence, and
(4) it is a de facto life sentence.
¶ 28 The record shows the trial court considered the appropriate factors in aggravation
and mitigation. The court specifically stated it had considered the presentence investigation
report (containing defendant’s age and criminal record), the letters, the victim impact statement,
defendant’s statement in allocution, and counsel’s arguments. The court expressly explained
why a sentence towards the lower end of the sentencing range was not appropriate. It stated the
following:
“So when I consider this, I don’t think this is a low end given your prior
record, given the fact that you are a registered sex offender at the time, given your
current record, given that deterrence is perhaps one of the strongest factors in this
case, given that you held a position of trust and authority with this young lady and
caused very serious harm to her, given the fact that I can’t find one mitigating
factor that is present, and given the fact that I do firmly believe that the public
needs to be protected from you, I think that a sentence in the higher range is much
more appropriate in this case.”
Thus, even though the offense at issue did not involve sexual penetration of the victim, the court
set forth numerous reasons why a sentence towards the lower end of the sentencing range was
not appropriate.
¶ 29 In its aforementioned explanation, the trial court’s comment it did not find a
mitigating factor does not indicate a failure to consider the factors in mitigation or the mitigating
evidence presented at the sentencing hearing. Moreover, its comment “deterrence is perhaps one
of the strongest factors in this case” does not indicate the court found deterrence was more
important than the seriousness of the offense. Before the aforementioned comment, the court
had addressed the seriousness of the offense. Also, defendant’s record and prior sex crime
indicate a decreased rehabilitative potential. Defendant’s arguments on appeal essentially ask
this court to substitute our judgment for that of the trial court by reweighing the relevant factors,
which is “an improper exercise of the powers of a reviewing court.” [CITATION]
[SEGMENT 7]
¶ 30 Based on our review of the record, we find defendant’s 45-year sentence for
predatory criminal sexual assault of a child was not “greatly at variance with the spirit and
- 10 - purpose of the law or *** manifestly disproportionate to the nature of the offense.” (Internal
quotation marks omitted.) [CITATION], ¶ 36. Accordingly, the trial court
did not abuse its discretion in sentencing defendant to 45 years’ imprisonment for predatory
criminal sexual assault of child.
¶ 31 B. Proportionate Penalties
¶ 32 Defendant also contends his conviction and sentence for predatory criminal sexual
assault of a child violates the proportionate penalties clause.
¶ 33 Constitutional challenges are divided into two categories: facial and as-applied.
[CITATION], ¶ 24, 61 N.E.3d 92. Our supreme court has emphasized the
two types of challenges are not interchangeable, and fundamental distinctions between them
exist. [CITATION], ¶ 24. Moreover, a defendant may establish a violation of the
proportionate penalties clause in two manners. [CITATION]. The defendant may argue the penalty for a particular offense is (1) too
severe, which is judged under the “ ‘cruel or degrading’ standard,” or (2) harsher than the penalty
for a different offense that contains identical elements. [CITATION]. Here, defendant raises both a facial and as-applied challenge under the identical elements
test.
¶ 34 With his facial challenge, defendant recognizes the Second District, in [CITATION], ¶¶ 19-20, 211 N.E.3d 902, found the penalty for predatory
criminal sexual assault of a child on its face did not violate the proportionate penalties clause
under the identical elements test when compared to aggravated criminal sexual abuse (720 ILCS
5/11-1.60(c)(1)(i) (West 2018)). However, he asserts the reasoning in [CITATION] conflicted with
supreme court precedent. Given that argument, we held this case in abeyance until our supreme
- 11 - court rendered its decision in Johanson. The supreme court agreed with the Second District the
two offenses do not contain identical elements. [CITATION], ¶ 14. As
such, the penalty for predatory criminal sexual assault of a child does not on its face violate the
proportionate penalties clause.
¶ 35 Defendant also points out the facts asserted in the State’s predatory criminal
sexual assault of a child charge in his case also satisfy the elements of aggravated criminal sexual
abuse. That argument is an as-applied challenge, which is not appropriate under the identical
elements test. Johanson, 2024 IL 129425, ¶ 16; [CITATION], ¶ 29.
¶ 36 Accordingly, defendant has failed to establish his sentence for predatory criminal
sexual assault of a child violates the proportionate penalties clause.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the Livingston County circuit court’s judgment.
¶ 39 Affirmed.
- 12 -
NOTICE
IL App (4th) 230041-U
This Order was filed under
FILED
NO. 4-23-0041 April 22, 2024
Supreme Court Rule 23 and is Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
MASON E. BERTRAND, ) No. 20CF74
Defendant-Appellant. )
) Honorable
) Jennifer M. Ascher,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Justices Lannerd and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s convictions and sentence because (1) the
State presented sufficient evidence for the jury to find defendant guilty beyond a
reasonable doubt of sexual exploitation of a child, (2) defendant’s convictions for
aggravated criminal sexual abuse and unlawful restraint did not violate the one-
act, one-crime rule, (3) defendant was not denied a fair trial, and (4) defendant’s
sentences did not violate the proportionate penalties clause of the Illinois
Constitution.
¶2 In January 2020, defendant, Mason E. Bertrand, was charged with (1) three counts
of predatory criminal sexual assault (720 ILCS 5/11-1.40(a)(1) (West 2018)), (2) three counts of
criminal sexual assault (id. § 1.20(a)(3)), (3) one count of aggravated criminal sexual abuse (id.
§ 1.60(b)), (4) one count of unlawful restraint (id. § 10-3(a)), and (5) one count of sexual
exploitation of a child (id. § 11-9.1(a)(1)). The charges alleged generally that from April 2018 to
May 2019, defendant committed various acts of sexual penetration and conduct with his minor
daughter, A.B. (born May 2006), and, on one occasion, detained A.B. in her bedroom. ¶3 In September 2022, a jury found defendant guilty on all counts. Later, the trial
court sentenced defendant to an aggregate sentence of 69 years in prison.
¶4 Defendant appeals, arguing that (1) the State’s evidence was insufficient to prove
him guilty beyond a reasonable doubt of sexual exploitation of a child, (2) his conviction for
unlawful restraint was based on the same physical conduct as his conviction for aggravated
criminal sexual abuse, in violation of the one-act, one-crime rule, (3) he was denied a fair trial,
and (4) his sentences for the three predatory criminal sexual assault convictions violated the
proportionate penalties clause of the Illinois Constitution ([CITATION]). We
disagree and affirm.
¶5 I. BACKGROUND
¶6 A. The Charges
¶7 In January 2020, the State charged defendant with (1) three counts of predatory
criminal sexual assault, (2) three counts of criminal sexual assault, (3) one count of aggravated
criminal sexual abuse, (4) one count of unlawful restraint, and (5) one count of sexual
exploitation of a child.
¶8 Regarding the predatory criminal sexual assault charges, the State alleged that
between April 1, 2018, and May 23, 2019, defendant, who was over the age of 17 years,
knowingly placed his (1) hand in contact with A.B.’s vagina, (2) penis in contact with A.B.’s
vagina, and (3) penis in contact with A.B.’s anus. The State further alleged that he did each of
these acts for the purpose of sexual gratification or arousal when A.B. was under the age of 13
years.
¶9 Regarding the criminal sexual assault charges, the State alleged that between May
23, 2019, and September 14, 2019, defendant, who was A.B.’s family member and 17 years of
age or older, knowingly placed his (1) finger in A.B.’s vagina, (2) penis in A.B.’s vagina, and
(3) penis in A.B.’s anus when A.B. was under the age of 18 years.
¶ 10 Regarding the aggravated criminal sexual abuse charge, the State alleged that on
or about September 15, 2019, defendant, who was A.B.’s family member and 17 years of age or
older, knowingly placed his hand in contact with the vagina of A.B. for the purpose of the sexual
gratification or arousal of the defendant.
¶ 11 Regarding the unlawful restraint charge, the State alleged that on or about
September 15, 2019, defendant knowingly and without legal authority detained A.B. in a
bedroom located.
¶ 12 Regarding the sexual exploitation of a child charge, the State alleged that between
April 1, 2019, and September 14, 2019, defendant knowingly engaged in a sexual act in the
presence of A.B.
¶ 13 B. The Jury Trial
¶ 14 In September 2022, the trial court conducted defendant’s jury trial.
¶ 15
. The Evidence
¶ 16 a. Jessica B.
¶ 17 Jessica B. testified that she was A.B.’s stepmother and defendant was A.B.’s
father. In September 2019, she was married to defendant and she, defendant, and A.B. lived
together in an apartment in Auburn, Illinois, along with several of A.B.’s siblings. On the
morning of September 15, 2019, around 3 a.m., Jessica woke up and went to the bathroom,
discovering that defendant was not in bed with her. After using the bathroom, Jessica looked
around the house for defendant, eventually opening the door to A.B.’s bedroom and turning the
light on. Jessica testified as follows:
“When I flipped on the light, the first thing I seen was [A.B.] And I noticed that
[SEGMENT 8]
she didn’t have any pants on, and she had a towel underneath her butt, and she
had a blanket across her from her lower abdomen to her face, and she was holding
it up to her face like this. And then the next thing I seen was [defendant] in
between her legs sweating.”
¶ 18 Jessica cursed at defendant and told A.B. to get dressed. Jessica and defendant
had an argument, during which defendant said to her “[h]ow sorry he is and how he will never do
it again.” The next morning, Jessica reached out to Melissa Warwick, the school social worker,
and told her to speak with A.B. that day when A.B. was at school. Later that day, Jessica spoke
with members from the Illinois Department of Children and Family Services.
¶ 19 Jessica thereafter moved out with her biological children. However, A.B.
remained at the residence with defendant for a short time until she moved in with her biological
mother.
¶ 20 Within a week of that incident, defendant began a text message conversation with
Jessica using Facebook Messenger. Screenshots of that conversation were admitted into evidence
as People’s exhibit Nos. 1-A through 1-R. In those messages, defendant begged Jessica to talk to
him about what happened and asked her for forgiveness. At one point, Jessica asked him, “If
[A.B.] got pregnant what would you have done[?] [C]ame to me and say [A.B.] is having your
child or just call her a whore.” Defendant responded, “I wasn’t thinking..that [is] why I am
seeking help….” He further messaged Jessica saying (1) he wished he could “take it all back,”
(2) he “shouldn’t have never ever looked at [A.B.] in that way,” and (3) he did not want the
marriage to end.
¶ 21 On cross-examination, Jessica testified that when she discovered defendant with
A.B., defendant was wearing a shirt and basketball shorts, but the shorts were “barely on.”
¶ 22 b. Melissa Warwick
¶ 23 Warwick testified that she was a social worker for Auburn Community Unit
School District No. 10 and had known A.B. for about six years. Warwick provided group
counseling for students, and A.B. attended that group once a week. On September 16, 2019,
Warwick received a Facebook message from Jessica that caused her concern. After reading the
message, Warwick met with A.B. at her junior high school. Warwick stated the following
regarding that meeting:
“[A.B.] was very visibly upset. *** [H]er hands were shaking when she
came in, which is out of the norm for her, *** because she’s comfortable with me.
She looked as if she probably hadn’t showered in a few days, had a dirty
sweatshirt on, dirty pants on, *** she was crying.”
¶ 24 c. Leah J.
¶ 25 Leah J. testified that she was the biological mother of A.B., who was born in
2006. In September 2019, after Leah received a message from Jessica, she immediately filed for
full custody of A.B. and picked A.B. up from defendant’s care. Later, Leah “confronted”
defendant outside a grocery store about the incident with A.B. Leah testified that defendant “said
that he didn’t know why he did it, he didn’t mean for it to get out of hand like that. He said that
she looked like me, *** just that type of stuff.” He also apologized and gave excuses as to “why
it happened.”
¶ 26 d. Careyana Brenham
¶ 27 Careyana Brenham testified that she was an expert in child sexual abuse
evaluations and she met with A.B. in October 2019. During that meeting, A.B. told Brenham that
defendant had first touched her sexually about a month before her twelfth birthday and he
continued to do so almost nightly up until September 15, 2019, when Jessica walked in on her
and defendant. A.B. indicated that defendant touched her in her genital and anal areas with his
hands, penis, and mouth. She also said that he penetrated her anally and with his penis and
fingers.
¶ 28 e. A.B.
¶ 29 A.B., who was 16 years old at the time of her testimony, stated that on the
morning of September 15, 2019, she woke up to defendant entering her room. A.B. stated, “[H]e
had came in and he started physically touching me,*** specifically fingering me.” A.B. specified
that defendant used his fingers to penetrate her vagina. Defendant then took her clothes off,
including her pants and underwear. There was a towel underneath her at the time. While
defendant was touching A.B., Jessica came into the room and she and defendant began “yelling
and fighting.”
¶ 30 A.B. testified that defendant began touching her sexually when she was 11,
approximately one month before her twelfth birthday. When asked by the prosecutor, “Do you
recall anything happening right when that all started between you and your dad?” A.B. replied, “I
had gone to bed early one night, and I woke up. I went to go get a snack from the fridge and a
drink. I ended up trying to use the restroom, and he was standing in the doorway of the bathroom
touching himself.” A.B. clarified that defendant was touching his penis with his hands. Upon
seeing defendant, A.B. immediately went back to bed, leaving her snack on the kitchen table.
A.B. testified, “[H]e had tried to talk to me [after the incident], but I kind of just ignored it and
tried to leave it at that.”
¶ 31 A.B. further testified that incidents like the one she described from September 15,
2019, occurred frequently, always in her bedroom. On more than one occasion, defendant used
his fingers to penetrate A.B.’s vagina, which occurred “[t]wo or three times a week” and always
at “nighttime.” He had also used his tongue and his penis to penetrate her vagina and penetrated
her anus with his penis. The penetration of her vagina and her anus with his penis occurred when
she was 12 and 13 years old. While the incidents occurred, the rest of the family were in their
rooms. If defendant heard a noise from one of A.B.’s younger siblings, defendant would leave
and “put them back down” to bed.
¶ 32 A.B. further testified that when defendant would penetrate her with his fingers, he
would use his other hand to touch his penis until he left. When asked what caused him to stop
touching himself, A.B. stated as follows:
“[E]ither he would be done or whenever he would hear a noise. ***
[S]ometimes he would just leave or sometimes—***, it wasn’t often that he
would say something to me, but sometimes he would tell me to clean up. ***
[W]hen he would ejaculate, I would have to clean it up or either I would have to
clean up the towel underneath me.”
¶ 33 A.B. testified that she did not know the meaning of “ejaculate” when she was
younger but learned about it as she got older.
¶ 34 When asked by the prosecutor, “Was there ever a time that you tried to get him to
stop?” A.B. replied, “Yes. *** I would try to push him off.” However, he would not get off.
Later, A.B. was asked, “W[ere] there times where you felt like you were not able to leave?” A.B.
replied, “Yes.”
¶ 35 A.B. testified as follows regarding how she felt during the period of her life that
defendant was touching her: “I was extremely depressed. ***[A]nd there was actually times
where I was taken to the hospital to talk about depression. And I was supposed to go to Lincoln
Prairie at least twice, but [defendant] refused to let me go.”
¶ 36 Defendant did not present any evidence.
¶ 37
. The Closing Arguments
¶ 38 During closing arguments, defense counsel asserted that the evidence of
defendant’s guilt was weak, pointing out the lack of forensic evidence. On rebuttal, the
prosecutor explained that although the jury had not heard any forensic evidence, it had heard
eyewitness testimony and circumstantial evidence. The prosecutor stated the following:
“Circumstantial evidence is the proof of facts or circumstances which give
rise to a reasonable inference of other facts which tend to show guilt or innocence
of the defendant. Circumstantial evidence should be considered by you together
with all other evidence in the case in arriving at your verdict. What does that
mean? *** It means that you get to think about all of the evidence that you’ve
heard. You get to hear what happened on September 15th and what Jessica
walked in on. And you get to make the reasonable inference that that is what
occurred on other nights. And, thank goodness, that the events of September 15th
didn’t go further than the other events.”
¶ 39
. Jury Deliberations and Verdict
¶ 40 During jury deliberations, the trial court received three questions. First, the jury
asked, “Can we get Exhibits 1A through 1R?” (referring to the screenshots of the messages
between defendant and Jessica). The parties agreed to send that evidence back to the jury.
[SEGMENT 9]
Second, the jury asked, “Can we get a better definition of Unlawful Restraint?” to which the
court responded by referring the jury to the jury instructions. Third, the jury asked, “Is there any
additional definition of Unlawful Restraint with respect to the term detained? What does
detained mean in this context? Are we talking about physical restraint? Does it specifically mean
detained during the act[?]” The court and the parties determined that an additional definition
would not be appropriate.
¶ 41 Ultimately, the jury found defendant guilty on all counts. Later, the trial court
sentenced defendant to an aggregate prison sentence of 69 years. Defendant filed a motion to
reconsider, arguing that his sentence was excessive because (1) the court did not properly
consider mitigating evidence and (2) the sentence violated the proportionate penalties clause of
the Illinois constitution (Ill. Const. 1970, art. I, § 11). The court denied the motion.
¶ 42 This appeal followed.
¶ 43 II. ANALYSIS
¶ 44 Defendant appeals, arguing that (1) the State’s evidence was insufficient to prove
him guilty beyond a reasonable doubt of sexual exploitation of a child, (2) his conviction for
unlawful restraint was based on the same physical conduct as his conviction for aggravated
criminal sexual abuse, in violation of the one-act, one-crime rule, (3) he was denied a fair trial,
and (4) his sentences for the three predatory criminal sexual assault convictions violated the
proportionate penalties clause. We disagree and affirm.
¶ 45 A. The Sufficiency of the Evidence
¶ 46 Defendant argues that the evidence was insufficient for the jury to find him guilty
of sexual exploitation of a child because the evidence did not show that he had engaged in a
sexual act—specifically, masturbation—in the presence of A.B. Alternatively, defendant argues
the State did not prove beyond a reasonable doubt that A.B. was under 13 years old at the time of
the offense as required for it to be classified as a Class 4 felony instead of a Class A
misdemeanor. See 720 ILCS 5/11-9.1(a)(1) (West 2018). We disagree with both of defendant’s
arguments.
¶ 47
. The Applicable Law and Standard of Review
¶ 48 The Illinois Supreme Court recently reiterated the familiar standard applicable to
a defendant’s challenge to the sufficiency of the evidence. In [CITATION],
¶ 28, 216 N.E.3d 165, the court wrote the following:
“In reviewing the sufficiency of the evidence in a criminal case, this court
asks whether, viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. [CITATION], ¶ 37 [104
N.E.3d 372]. A reviewing court will not substitute its judgment for that of the trier
of fact on questions involving the weight of the evidence or the credibility of
witnesses. Id. All reasonable inferences from the evidence must be drawn in favor
of the State. Id. A criminal conviction will not be overturned unless the evidence
is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt
of the defendant’s guilt. Id.”
¶ 49 “In weighing the evidence, a trier of fact need not search out all possible
explanations consistent with innocence and raise them to a level of reasonable doubt.” Id. ¶ 32.
¶ 50 “A person commits sexual exploitation of a child if in the presence or virtual
presence, or both, of a child and with knowledge that a child or one whom he or she believes to
be a child would view his or her acts, that person: *** engages in a sexual act.” 720 ILCS
5/11-9.1(a)(1) (West 2018). “Sexual act” is defined as “masturbation, sexual conduct or sexual
penetration as defined in Section 11-0.1 of [the Criminal Code of 2012].” Id. § 9.1(b). “ ‘Child’
- 10 - means a person under 17 years of age.” Id.
¶ 51 Although “masturbation” is not defined by statute, that term is commonly
understood to mean “ ‘erotic stimulation involving the genital organs commonly resulting in
orgasm and achieved by manual or other bodily contact exclusive of sexual intercourse.’ ”
[CITATION] (quoting Webster’s Third
New International Dictionary 1391 (1993)). “The definition of masturbation does not require that
a person stimulate his or her genital organ in any specific way; an act constitutes masturbation so
long as the bodily contact erotically stimulates the genital organ.” Id. at 101.
¶ 52
. This Case
¶ 53 Defendant concedes that A.B. testified that she observed defendant “ ‘touching
himself’ on his penis while he was digitally penetrating her,” but he argues that “A.B. did not
testify to any of the hallmarks of masturbation,” which he asserts is testimony regarding
questions such as (1) whether his penis was erect, (2) how he physically manipulated his penis,
or (3) what she meant by the phrase “touching himself.” As an example of testimony that
contains those “hallmarks of masturbation,” defendant quotes the holding in [CITATION], ¶ 88: “The act of a man touching his genitals and moving his hand
up and down, while lying in bed next to a 14-year-old girl that he had repeatedly touched
inappropriately throughout the evening, clearly constituted masturbation.”
¶ 54 Defendant’s argument defies common sense, and to illustrate the absurdity of his
argument, we paraphrase the court’s holding in [CITATION] using the evidence in the present case—
namely, the act of a man touching his penis, while digitally penetrating his daughter’s vagina
after regularly sexually assaulting her for years, clearly constituted masturbation.
¶ 55 Moreover, A.B. testified that defendant touched his penis in front of her on
- 11 - multiple occasions and even expressed that defendant stopped touching himself when “either he
would be done or whenever he would hear a noise.” Removing any possible confusion, A.B. then
said that defendant would ejaculate and make her clean it up. Given this testimony, defendant’s
assertion that “A.B. did not testify to any of the hallmarks of masturbation” is baseless.
¶ 56 Defendant also argues that the State failed to prove that A.B. was under 13 years
old at the time of the offense because (1) the State alleged that he committed sexual exploitation
of a child between the dates of April 1, 2018, and September 14, 2019 and (2) A.B. turned 13
years old in May 2019, making her 13 during the last three months of the date range alleged in
the charging document.
¶ 57 Although (1) defendant concedes that he has forfeited this argument and (2) as we
will discuss infra ¶¶ 77-82, the evidence was not closely balanced, we note that A.B. was 11 and
12 years old for 14 of the 17 months alleged in the indictment and that A.B. testified that similar
incidents where defendant would touch his penis while digitally penetrating her occurred
“extremely often,” which she defined as two or three times a week. Based on this testimony and
construing the evidence in the light most favorable to the State, the evidence was sufficient for
the jury to conclude that he committed the felony offense of sexual exploitation of a child.
¶ 58 B. One-Act, One-Crime
¶ 59 Defendant argues that his “conviction of both unlawful restraint and aggravated
criminal sexual abuse violated the first prong of the one-act, one crime rule because the State’s
only evidence of restraint was inherent in the charged sex offense.” We disagree.
¶ 60
. The Applicable Law and the Standard of Review
¶ 61 Under the one-act, one-crime rule, “a criminal defendant may not be convicted of
multiple offenses when those offenses are all based on precisely the same physical act.” [CITATION]
- 12 - v. [CITATION]. “[A]n ‘act’ [is] any overt or outward
manifestation that will support a separate offense.” [CITATION]. “For the State to properly obtain multiple convictions for connected
acts that might be treated as a series of offenses, the State must apportion the acts to the offenses
in the charging instrument and at trial.” [CITATION].
¶ 62 The test for determining whether a one-act, one-crime violation has occurred
involves a two-step process. “First, the court should determine whether the defendant’s conduct
consists of one physical act or several acts.” [CITATION]. If “the defendant has committed multiple acts, the court should then determine
whether any of the charged offenses are lesser included offenses of another charged offense.” Id.
¶ 24. “If so, then ‘multiple convictions are improper; if not, then multiple convictions may be
entered.’ ” Id. (quoting [CITATION]).
¶ 63
. This Case
¶ 64 Defendant contends that the evidence the State presented for the aggravated
criminal sexual abuse and unlawful restraint contemplated only one act—namely, defendant
digitally penetrating A.B. Accordingly, defendant argues, because there was no other evidence
presented for a separate act by defendant on September 15, 2019, that impeded A.B.’s freedom
[SEGMENT 10]
of movement, the unlawful restraint conviction violates the one-act, one-crime rule. We disagree.
¶ 65 Looking at the charging instruments, the State premised the aggravated criminal
sexual abuse charge on defendant placing his hand in contact with A.B.’s vagina. By contrast,
the State premised the unlawful restraint charge on defendant detaining A.B. in her bedroom.
- 13 - Although these charges could pertain to one act, given A.B.’s testimony that she tried to push
defendant off her but failed to do so, her testimony contemplates at least one act of defendant
physically restraining her against her will that is separate from his act of digitally penetrating her
vagina.
¶ 66 Anticipating our conclusion that A.B.’s testimony referred to separate acts,
defendant asserts that even if that testimony was sufficient to show a separate act from the
aggravated criminal sexual abuse, the State’s reliance on the act of holding A.B. down against
her will constitutes a change in the State’s theory of the case, which cannot now provide a basis
for defendant’s unlawful restraint conviction. See [CITATION] (“[T]o apportion the
crimes among the various stab wounds for the first time on appeal would be profoundly unfair.”).
However, defendant preventing A.B. from pushing him off her is entirely consistent with the
State’s theory of the case as set out in (1) the charging instrument, which says that defendant
detained A.B. in her room, and (2) the State’s opening and closing arguments, which highlighted
A.B.’s attempt to escape from under defendant.
¶ 67 Accordingly, defendant’s conviction for unlawful restraint does not violate the
one-act, one-crime rule.
¶ 68 C. Defendant’s Fair Trial Claims
¶ 69 Defendant argues that he was denied a fair trial because (1) the prosecutor
misstated the law during closing arguments when she told the jury that it “could consider proof
of one charged crime as creating an inference that [defendant] had a propensity to commit the
other charged crimes” and (2) the trial court violated Illinois Supreme Court Rule 431(b) (eff.
July 1, 2012) when it failed to ask every member of the jury whether they understood and
accepted each of the Zehr principles (see [CITATION]
- 14 - (1984)). In the alternative, defendant argues that cumulative error denied him a fair trial. We
disagree.
¶ 70 As an initial matter, defendant concedes he has forfeited these claims on appeal
because he did not raise any of these claims in the trial court. See [CITATION], ¶ 44, 155 N.E.3d 577 (“A defendant forfeits an issue for purposes of appellate review by
failing to object to the alleged error or raise it in a written posttrial motion.”). Nonetheless, he
contends that we may review his claims as either first-prong plain error or ineffective assistance
of counsel.
¶ 71
. The Applicable Law
¶ 72 a. Plain Error
¶ 73 The usual first step under either prong of the plain-error doctrine is to determine
whether there was an error at all. [CITATION], ¶ 17, 93
N.E.3d 597. When a defendant claims first-prong plain error, he must prove that an error
occurred and that the evidence was so closely balanced that the error alone severely threatened to
tip the scales of justice against him. Id. ¶ 26. When determining whether the evidence was
closely balanced, a reviewing court must evaluate the totality of the evidence and conduct a
qualitative, commonsense assessment of it within the context of the case. [CITATION], ¶ 53, 89 N.E.3d 675. Typically, the evidence is closely balanced if “the outcome of
this case turned on how the finder of fact resolved a ‘contest of credibility.’ ” Id. ¶ 63 (quoting
[CITATION], 893 N.E.2d 653, 667 (2008)). A “contest of
credibility” exists when (1) both sides presented a plausible version of events and (2) there is no
extrinsic evidence to corroborate or contradict either version. Id. ¶¶ 60-63.
¶ 74 b. Ineffective Assistance of Counsel
- 15 - ¶ 75 “To demonstrate ineffective assistance of counsel, a defendant must show that
(1) the attorney’s performance fell below an objective standard of reasonableness and (2) the
attorney’s deficient performance prejudiced the defendant in that, absent counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding would have been
different.” [CITATION] (citing [CITATION]). “A reasonable probability is a probability which
undermines confidence in the outcome of the trial.” [CITATION]. “Because the defendant must satisfy both prongs of this test, the
failure to establish either is fatal to the claim.” [CITATION] (citing [CITATION]).
¶ 76
. This Case
¶ 77 Here, defendant’s claims of plain error and ineffective assistance of counsel fail
because (1) the evidence was not closely balanced and (2) even if his attorney’s performance was
deficient, defendant was not prejudiced.
¶ 78 Defendant argues that the evidence was closely balanced regarding (1) the three
counts of predatory criminal sexual assault, (2) the three counts of criminal sexual assault, and
(3) the single count of sexual exploitation of a child. Specifically, defendant argues that the
State’s evidence regarding those counts “boiled down to one thing: A.B. claiming to others that
[defendant] committed various acts.” Defendant contends that the evidence amounts to a
credibility contest because (1) “the State did not present any direct evidence, such as the
testimony of an eyewitness or physical evidence, that the events alleged in the remaining counts
occurred” and (2) defendant pleaded not guilty to the charges.
¶ 79 This argument is completely without merit. Defendant is incorrect that the State
- 16 - did not present eyewitness evidence because the State presented the testimony of A.B., who is
both the victim and eyewitness of defendant’s assaults.
¶ 80 Further, defendant does not point to anything in the record showing why this case
is closely balanced, nor does he argue that A.B.’s testimony was not credible or insufficient to
support the charges against him. Instead, defendant implicitly asks this court to conclude as a
matter of law that the unimpeached testimony of a sex crime victim against the not guilty plea of
a defendant makes the case closely balanced because the convictions came down to the
credibility of one witness—in defendant’s words, “a credibility contest.”
¶ 81 Again, this contention is completely without merit. As the supreme court recently
explained, in the absence of a defendant’s testimony or other contrary evidence, a “credibility
contest” cannot exist when the jury heard only one account of what happened. See [CITATION]
(concluding there is not a credibility contest when there are not competing accounts); see also [CITATION] (The Third District opinion the supreme court reversed, in which Justice Schmidt wrote in dissent the following: “The majority finds the evidence closely
balanced because of a ‘credibility contest.’ *** What credibility contest? Not one witness
contradicted the victims’ testimony.”).
¶ 82 Although the absence of a “credibility contest” is not fatal to defendant’s claim
(see [CITATION] (noting that the defendant’s decision not to present evidence
was not fatal to a first-prong plain-error argument)), we nonetheless conclude that the evidence
of defendant’s guilt was overwhelming because (1) A.B.’s testimony was consistent and
uncontradicted and (2) her credibility was bolstered by her mother’s testimony and defendant’s
messages corroborating her account of the assault on September 15, 2019. Further, because the
- 17 - evidence was overwhelming, even if we agreed with defendant that his attorney performed
deficiently in the manners defendant alleged, there is not a reasonable probability that absent
those errors the outcome would have been different.
¶ 83 Accordingly, defendant’s claims of plain error and ineffective assistance of
counsel fail.
¶ 84 D. The Proportionate Penalties Clause
¶ 85 Last, defendant argues that the trial court erred by imposing Class X sentencing
for counts 1 through 3 in violation of the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970, art. I, § 11) because subsection (a)(1) of the predatory criminal
sexual assault statute (720 ILCS 5/11-1.40(a)(1) (West 2018)) and subsection (c)(1)(i) of the
aggravated criminal sexual abuse statute (id. § 11-1.60(c)(1)(i)) have identical elements but carry
different penalties.
¶ 86 The supreme court recently addressed this exact issue in [CITATION],
¶ 14, writing as follows:
“The plain language of these statutes demonstrates a clear difference
between the two offenses. Although both require the victim to be under the age of
, aggravated criminal sexual abuse concerns any touching or fondling for
purposes of sexual gratification or arousal, whereas predatory criminal sexual
assault of a child requires direct contact with the sex organ or anus. While acts
that satisfy the contact element of predatory criminal sexual assault of a child also
satisfy the element of sexual conduct, the opposite is not always true.
[SEGMENT 11]
***
Consequently, the two offenses do not contain identical elements. See generally
- 18 - [CITATION] (agreeing with the
appellate court’s decision in the case at bar); [CITATION] (same). The legislature could have reasonably believed that contact
between the sex organ or anus of the defendant and a child victim required a more
severe penalty. Therefore, the more severe sentence provided for the offense of
predatory criminal sexual assault of a child is not constitutionally disproportionate
to the less severe sentence for the offense of aggravated criminal sexual abuse.”
¶ 87 Accordingly, the trial court did not err by imposing Class X sentencing for counts
1 through 3 because “the offense of predatory criminal sexual assault of a child does not contain
identical elements to the offense of aggravated criminal sexual abuse and therefore does not
violate the proportionate penalties clause of the Illinois Constitution.” Id. ¶ 20.
¶ 88 III. CONCLUSION
¶ 89 For the reasons stated, we affirm the trial court’s judgment.
¶ 90 Affirmed.
- 19 -
Digitally signed by
Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Supreme Court Date: 2024.08.06
:57:37 -05'00'
[CITATION]
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KOREM
Court: M. JOHANSON, Appellant.
Docket No.
Filed April 4, 2024
Decision Under Appeal from the Appellate Court for the Second District; heard in that
Review court on appeal from the Circuit Court of McHenry County, the Hon.
Michael E. Coppedge, Judge, presiding.
Judgment Judgments affirmed.
Counsel on James E. Chadd, State Appellate Defender, Thomas A. Lilien, Deputy
Appeal Defender, and Anthony J. Santella, Assistant Appellate Defender, of
the Office of the State Appellate Defender, of Elgin, for appellant.
Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz,
Solicitor General, and Katherine M. Doersch and Garson S. Fischer,
Assistant Attorneys General, of Chicago, of counsel), for the People.
Justices JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Cunningham, and
Rochford concurred in the judgment and opinion.
Justice Holder White took no part in the decision. ```plaintext
OPINION
¶1 Following a bench trial, the circuit court of McHenry County found defendant, Korem M.
Johanson, guilty of Class X felony predatory criminal sexual assault of a child (720 ILCS 5/11-
1.40(a)(1) (West 2018)). Prior to sentencing, defendant moved to be sentenced for the less severe Class
2 felony offense of aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i)). 1 He argued that the
greater penalty for predatory criminal sexual assault of a child violated the proportionate penalties
clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because the two offenses contained
identical elements but disparate sentences. The circuit court denied the motion and sentenced defendant
to 16 years’ imprisonment. Defendant raised the same argument on appeal, and the appellate court
affirmed defendant’s conviction and sentence. [CITATION]. We affirm.
¶2 BACKGROUND
¶3 The State charged defendant with six offenses. He pled guilty to one count prior to trial, which is
not relevant to this appeal. Following the bench trial on the remaining five counts, the circuit court
found him guilty of only one count of predatory criminal sexual assault of a child. That count alleged:
“[D]efendant committed the offense of predatory criminal sexual assault, in that the said
defendant, who was seventeen years of age or older, knowingly committed an act of contact
with [the victim] who was under thirteen years of age when the act was committed, in that said
defendant caused [his] sex organ (penis) to make contact with the hand of [the victim] for the
purpose of the defendant’s sexual gratification or arousal.”
¶4 Prior to sentencing, defendant filed a motion to be sentenced for the Class 2 felony of aggravated
criminal sexual abuse. He claimed that predatory criminal sexual assault of a child contained identical
elements to the less severe offense of aggravated criminal sexual abuse, which he argued violated the
proportionate penalties clause of the Illinois Constitution. The circuit court denied the motion, finding
that the two offenses did not contain identical elements, given that the offense of predatory criminal
sexual assault of a child required “contact” between the sex organ or anus of the defendant or victim,
while aggravated criminal sexual abuse broadly required an act of “sexual conduct” that did not
necessarily involve contact with a sex organ or anus.
¶5 On appeal, defendant again argued that the penalty for predatory criminal sexual assault of a child
violated the proportionate penalties clause of the Illinois Constitution under the identical elements test.
[CITATION]. The appellate court interpreted the definition of the element “sexual conduct” for the offense of
aggravated criminal sexual abuse. [CITATION] (citing 720 ILCS 5/11-0.1 (West 2018)). It concluded that
sexual conduct can occur in three ways, when
“for the purpose of sexual gratification or arousal of the defendant or the victim, there is
(1) knowing touching or fondling of the victim’s or the defendant’s sex organs, anus, or breast,
or (2) knowing touching or fondling of any part of the body of a child under age 13, or (3) any
transfer or transmission of semen by the accused upon any part of the clothed or unclothed
body of the victim.” (Emphases in original and internal quotation marks omitted.) [CITATION].
¶6 By contrast, the court noted that predatory criminal sexual assault of a child “concerns ‘contact,
however slight, between the sex organ or anus of one person and the part of the body of another,’ where
the victim is under 13 years of age.” [CITATION] (quoting 720 ILCS 5/11-1.40(a)(1) (West 2018)). The
The appellate court observed that defendant cited a different form of aggravated criminal sexual
abuse in the trial court (720 ILCS 5/11-1.60(b) (West 2018)), but in the appellate court and this court,
defendant relied on section 11-1.60(c)(1)(i). See [CITATION], ¶ 4 n.1. The State took no
issue with this discrepancy in either the appellate court or this court.
``` court found that, although both offenses required the victim to be under the age of 13, the broad
definition of sexual conduct could be satisfied without contact involving the sex organ or anus. [CITATION]
Therefore, a person could commit the offense of aggravated criminal sexual abuse without also
committing the offense of predatory criminal sexual assault of a child. [CITATION] Consequently, the court
concluded that the two offenses did not contain identical elements in violation of the proportionate
penalties clause. [CITATION] ¶ 27.
¶7 Defendant appeals.
¶8 ANALYSIS
¶9 In this court, defendant contends that the courts below erred in rejecting his argument that the
penalty for the offense of predatory criminal sexual assault of a child violates the proportionate
penalties clause of our state constitution. The constitutionality of a statute is a question of law, which
we review de novo. [CITATION]
¶ 10 The proportionate penalties clause of the Illinois Constitution provides that “[a]ll penalties shall be
determined both according to the seriousness of the offense and with the objective of restoring the
offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. When reviewing a proportionate penalties
claim, “our ultimate inquiry is whether the legislature has set the sentence in accord with the seriousness
of the offense.” [CITATION] One way a penalty can violate the
proportionate penalties clause, which is at issue here, is if that penalty “is greater than the sentence for
an offense with identical elements.” [CITATION] This is known as the
identical elements test.
¶ 11 Under the identical elements test, where different offenses contain identical elements, “common
sense and sound logic would seemingly dictate that their penalties be identical.” [CITATION] When two different offenses contain identical elements but different penalties,
“the penalties [are] unconstitutionally disproportionate and the offense with the greater penalty [cannot]
stand.” [CITATION] (citing [CITATION]) This objective test
compares the elements of the two offenses to determine if the offenses are the same. [CITATION] Given
that the test is objective, it does not consider the offenses as applied to an individual defendant. [CITATION]
Here, we compare section 11-1.40(a)(1) of the Criminal Code of 2012 (Code) (720 ILCS 5/11-
1.40(a)(1) (West 2018)) (predatory criminal sexual assault of a child) with section 11-1.60(c)(1)(i) of
the Code (id. § 11-1.60(c)(1)(i)) (aggravated criminal sexual abuse).
¶ 12 Section 11-1.40(a)(1) provides that
“[a] person commits predatory criminal sexual assault of a child if that person is 17 years of
age or older, and commits an act of contact, however slight, between the sex organ or anus of
one person and the part of the body of another for the purpose of sexual gratification or arousal
of the victim or the accused *** and:
(1) the victim is under 13 years of age[.]” Id. § 11-1.40(a)(1).
Contact has been interpreted to mean any touching. [CITATION]
Contact in the context of this statute requires direct contact between the sex organ or anus of one person
and any part of the body of another.
¶ 13 By comparison, section 11-1.60(c)(1)(i) provides that “[a] person commits aggravated criminal
sexual abuse if: (1) that person is 17 years of age or over and: (i) commits an act of sexual conduct with
a victim who is under 13 years of age.” 720 ILCS 5/11-1.60(c)(1)(i) (West 2018). “Sexual conduct” is
defined as
“any knowing touching or fondling by the victim or the accused, either directly or through
clothing, of the sex organs, anus, or breast of the victim or the accused, or any part of the body
of a child under 13 years of age, or any transfer or transmission of semen by the accused upon
[SEGMENT 12]
any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification
or arousal of the victim or the accused.” Id. § 11-0.1.
The first two definitions involve the knowing touching or fondling based on the age of the victim.
Depending on the victim’s age,
“ ‘sexual conduct’ involving a victim of the age of 13 and over requires intentional touching or
fondling of certain parts of the body, namely, the sex organs, the anus, or the breast, whereas
‘sexual conduct’ involving a victim under the age of 13 years includes the touching or fondling
of ‘any part of the body,’ in all cases for the purpose of sexual gratification or arousal of the
victim or the accused.” [CITATION]
The third definition involves the transfer of semen regardless of the victim’s age. Therefore, where the
conduct in question does not involve the transfer of semen, the element of sexual conduct under section
11-1.60(c)(1)(i)—which requires the victim to be under the age of 13—is defined as any “knowing
touching or fondling by the victim or the accused, either directly or through clothing, of *** any part
of the body of a child under 13 years of age.” 720 ILCS 5/11-0.1 (West 2018); see [CITATION]
¶ 14 The plain language of these statutes demonstrates a clear difference between the two offenses.
Although both require the victim to be under the age of 13, aggravated criminal sexual abuse concerns
any touching or fondling for purposes of sexual gratification or arousal, whereas predatory criminal
sexual assault of a child requires direct contact with the sex organ or anus. While acts that satisfy the
contact element of predatory criminal sexual assault of a child also satisfy the element of sexual
conduct, the opposite is not always true.
“For example, a defendant who massages the back of a naked six-year-old for purposes of
sexual gratification can be convicted of aggravated criminal sexual abuse, but without an
allegation that the touching concerned a sex organ or anus, the defendant cannot also be
convicted of predatory criminal sexual assault of a child.” [CITATION]
Consequently, the two offenses do not contain identical elements. See generally [CITATION] (agreeing with the appellate court’s decision in the case at bar);
[CITATION] (same). The legislature could have reasonably believed
that contact between the sex organ or anus of the defendant and a child victim required a more severe
penalty. Therefore, the more severe sentence provided for the offense of predatory criminal sexual
assault of a child is not constitutionally disproportionate to the less severe sentence for the offense of
aggravated criminal sexual abuse.
¶ 15 Nevertheless, defendant asks this court to consider the elements of the offense as alleged in this
case and find that both offenses contain identical elements. He notes that he was convicted of predatory
criminal sexual assault of a child based on one theory of guilt—that he caused his penis to make contact
with the hand of the victim for the purpose of sexual gratification or arousal. Had defendant been
charged with aggravated criminal sexual abuse, defendant claims the State would be required to prove
contact between defendant’s penis and the victim’s hand to satisfy the element of sexual conduct. Since
his acts satisfied the elements of both offenses, he contends the elements must be identical.
¶ 16 We reject defendant’s argument for two reasons. First, despite defendant’s insistence to the
contrary, his argument is an as-applied challenge, which is not appropriate under the identical elements
test. [CITATION] The identical elements test compares the elements of two offenses
to determine if the offenses are the same. Id. This objective test does not consider the offenses as applied
to an individual defendant. Id. Rather, the question of whether the elements of one offense are the same
as those of another offense turns on that statutory language, not the facts alleged in a particular case.
Here, the analysis is whether “sexual conduct” means the same thing as “contact” based on the statutory
language. That defendant’s acts in this case constituted both offenses shows only that aggravated
criminal sexual abuse may be a lesser included offense of predatory criminal sexual assault of a child
in some cases, but that does not make the elements identical. For the same reason, we find defendant’s
reliance on [CITATION], and [CITATION], misplaced. Those decisions compared a felony offense to the
offense of armed violence and did not involve the offenses in question here. Further, the statutes in
question involved the use of different words that meant the same thing. Here, the elements of contact
and sexual conduct do not mean the same thing.
¶ 17 Defendant’s argument has a second flaw in that it incorrectly defines the element of sexual conduct
for the offense of aggravated criminal sexual abuse when the victim is under the age of 13. Defendant
claims this court should rely on the first clause and define this element as “any knowing touching or
fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus, or
breast of the victim or the accused.” 720 ILCS 5/11-0.1 (West 2018). However, this definition has no
application to section 11-1.60(c)(1)(i), which requires the victim to be under the age of 13. As noted
above, when the victim is under the age of 13 and the conduct involves touching and fondling, sexual
conduct is defined as “any knowing touching or fondling by the victim or the accused, either directly
or through clothing, of *** any part of the body of a child under 13.” Id. This does not require contact
between the sex organ or anus of the victim or the accused, although proof of those facts would satisfy
this definition.
¶ 18 Finally, we reject defendant’s reliance on [CITATION], which
also compared predatory criminal sexual assault of a child and aggravated criminal sexual abuse but
reached the opposite conclusion. 2 Relying on the fact that defendant’s conduct in [CITATION] constituted
both offenses, the court held that the offenses shared identical elements. Id. ¶ 75. The flaw in [CITATION]
is it relied on the fact that the charging instrument alleged facts that could establish both offenses to
find the elements are identical. As discussed above (supra ¶¶ 15-16), that is not the appropriate test.
We therefore overrule [CITATION]. 3
¶ 19 CONCLUSION
¶ 20 For the above reasons, we affirm the judgment of the appellate court, which affirmed the circuit
court’s judgment that the offense of predatory criminal sexual assault of a child does not contain
identical elements to the offense of aggravated criminal sexual abuse and therefore does not violate the
proportionate penalties clause of the Illinois Constitution.
¶ 21 Judgments affirmed.
¶ 22 JUSTICE HOLDER WHITE took no part in the consideration or decision of this case.
The Fourth District has since held that “[t]o the extent the [CITATION] decision’s mere existence
suggests a defendant can raise an as-applied proportionate penalties challenge under the identical
elements test, we emphasize the supreme court’s decision in [CITATION] does not allow such a challenge.”
[CITATION], ¶ 30.
In coming to this conclusion, we also note that [CITATION] is an unpublished appellate court decision
from before 2021, which Rule 23 does not permit a litigant to cite for persuasive purposes. See Ill. S.
Ct. R. 23(e) (eff. Feb. 1, 2023).
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
2024 IL App (2d) 230103-U
No. 2-23-0103
Order filed June 20, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 19-CF-1056
)
MARK RIVERA, ) Honorable
) John A. Barsanti,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court.
Justices Schostok and Birkett concurred in the judgment.
ORDER
¶1 Held: (1) The State proved beyond a reasonable doubt that defendant committed the
charged sex offenses against the victim, and convictions for predatory criminal
sexual assault and aggravated criminal sexual abuse do not violate the proportionate
penalties clause.
¶2 After a bench trial, defendant, Mark Rivera, was convicted of two counts of predatory
criminal sexual assault of a child, a Class X felony (720 ILCS 5/11-1.40(a)(1), (b)(1) (West 2018))
with a sentencing range of 6 to 60 years’ imprisonment (id. § 11-1.40(b)(1)), and one count of
aggravated criminal sexual abuse, a Class 2 felony (id. § 11-1.60(c)(1)(i), (g)) with a sentencing
range of 3 to 7 years’ imprisonment (730 ILCS 5/5-4.5-35(a) (West 2018)). He was sentenced to 2024 IL App (2d) 230103-U
six years’ imprisonment for each conviction of predatory criminal sexual assault of a child and
three years for aggravated criminal sexual abuse, all sentences to run consecutively. On appeal,
defendant contends that (1) he was not proved guilty beyond a reasonable doubt and (2) his
sentences for predatory criminal sexual assault of a child must be vacated and the matter remanded
for Class 2 felony resentencing because that offense, as charged, was based on the same elements
as aggravated criminal sexual abuse yet had carried a more severe penalty, thus violating the
proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). We affirm.
¶3 I. BACKGROUND
¶4 The State indicted defendant on 10 charges, all based on events occurring between June 9,
2018, and May 21, 2019, and involving E.M. Counts I through III alleged predatory criminal sexual
assault of a child, and counts IV through X alleged aggravated criminal sexual abuse. Each count
alleged that defendant committed the act for his sexual gratification and that, at the time, he was
at least 17 years of age and E.M. was under 13 years of age. Counts I through III alleged that
defendant knowingly made “contact” between “a part of [his] body” and E.M.’s “sex organ.”
Counts IV, V, VI, and IX alleged that defendant knowingly “touched the vagina of E.M.” Counts
VII and VIII alleged that defendant knowingly touched E.M.’s breasts. Count X alleged that
defendant knowingly “pressed his penis against the body of E.M.” The counts provided no
differentiating detail aside from identifying the body parts involved.
¶5 At trial, E.M. testified as follows. She was born on June 9, 2009, and resided with her
mother, Cherin L., her stepfather, James L., and her younger brothers, A.M. and B.L. She had
known defendant and his family all her life; spent much time with them at her home and theirs;
was close to defendant’s daughter, A.R., who was around her age; and knew his older children,
[CITATION]
L.R., M.R, and D.R. E.M. identified photographs of her home’s living room and defendant’s
home’s living room, kitchen, and basement. The photographs were admitted into evidence.
¶6 E.M. testified to three separate incidents in which defendant touched her inappropriately.
She could not recall how old she was or what grade she was in at the time of the first incident. It
happened in defendant’s living room. Defendant and D.R. were sitting at a table playing “Settlers,”
a board game. A.R. was present. While E.M. sat on defendant’s lap, he reached under the table,
put his hand inside her underwear, and rubbed her vagina. E.M. felt a “bump under where [she]
was sitting” but did not know what it was.
¶7 E.M. described another incident, which occurred when she was nine. She was in the kitchen
of defendant’s home with A.M., A.R., and D.R. She did not know if defendant’s other children
were there. Defendant asked her to come downstairs with him to the “man cave.” Just the two of
them went downstairs. When she and defendant went inside the man cave, they were alone. At
defendant’s request, E.M sat on defendant’s lap. Defendant placed his hand under her clothes and
rubbed her chest and vagina. He stopped when James opened the door to the man cave.
¶8 E.M. testified about another incident when she was nine years old. Cherin was pregnant
with B.L. Defendant and his children visited E.M.’s family and watched a Bears game in the living
room. There was a couch between two chairs. Cherin sat in the rocking chair, and defendant sat in
the other chair with E.M. on his lap. All four of defendant’s children were sitting on the couch.
Defendant placed his hand under E.M.’s clothes and rubbed her breasts and vagina. He stopped
when A.R. asked E.M to play outside. E.M. got up and left.
¶9 E.M. testified on cross-examination as follows. Defendant’s children were homeschooled
and were generally home when E.M. and A.M. visited. The basement included the man cave and
2024 IL App (2d) 230103-U
bedrooms for L.R. and M.R., the oldest children. The living room had a loft where A.R. and D.R.
had bunk beds.
¶ 10 E.M. testified that, in 2018 and 2019, she often sat on defendant’s lap. She recalled that on
“the day *** that something bad happened to [her]” in defendant’s living room, defendant and
D.R. were playing Settlers, and A.R. was lying on the floor doing a puzzle. A.M. might have been
there. Defendant’s wife, Melissa, was in the kitchen, where she could see part of the living room.
E.M. did not recall whether either L.R. or M.R. was home that day. When defendant touched her
vagina that day, he did not remove or unbutton her pants or remove her underwear. He did not
touch her breasts.
¶ 11 E.M. did not recall whether M.R. was in his room during the man cave incident. She did
not believe that L.R. was home. Defendant did not speak while he touched E.M. and did not tell
her to keep the incident a secret. The man cave was well-lit.
¶ 12 E.M. testified that it was light outside during the Bears game. She and the other children
were in and out of the room numerous times. James, L.R., and M.R. sat on the couch, as did the
other children when they were watching the game. Cherin was also in the room. When E.M. sat
on defendant’s lap, they were not covered by a blanket. He touched her vagina without pulling
down her pants or underwear.
¶ 13 On redirect and recross examinations, E.M. testified that Melissa was in the kitchen when
defendant touched her during the Settlers game. Melissa sometimes walked from the kitchen
through the living room to her and defendant’s bedroom.
¶ 14 James testified as follows. He met defendant and his family through their church and, until
May 2019, saw him once or twice weekly. Defendant and his family often visited on Sundays or
weekdays to watch recorded Bears games. James was generally absent during the weekday visits.
2024 IL App (2d) 230103-U
¶ 15 James testified that, in 2019, he sometimes dropped off E.M. at defendant’s house and
picked her up later. On February 2, 2019, he went to pick up E.M. and A.M. He saw that D.R.,
A.R., and A.M. were in the living room, but E.M. was not. James went looking for her. Eventually,
he opened the door to the man cave. Defendant was sitting on a chair with E.M. on his lap. Nobody
else was there. James told E.M. to get out and join the other children. James testified that Cherin
had previously asked defendant to “ [‘]model better boundaries for [E.M.][’] ” After E.M. left the
[SEGMENT 2]
man cave, James asked defendant, “ [‘][H]ow is this modeling better boundaries having her down
here alone with you?[’] ”
¶ 16 On cross-examination, James testified that, on February 2, 2019, the door to the man cave
was not locked. The room was well-lit. After James entered, E.M. said nothing that concerned him.
During the football viewings, James, L.R., and M.R. usually sat on the couch and Cherin sat in the
chair on the other side of the couch from defendant. The small children went in and out of the
living room, and the other people would get up for food or to go to the bathroom. James saw E.M.
sit on defendant’s lap sometimes, but they were never covered by a blanket. Nothing obstructed
James’s view of E.M.’s body. He never saw defendant’s hands in E.M.’s pants or inside the front
of her shirt, although he scratched her back under her shirt.
¶ 17 F.F. testified as follows. L.R. was her best friend. In November or December 2016, they
attended a movie with F.F.’s brother, defendant, and M.R. Defendant was on F.F.’s left in the
darkened theater. At one point, F.F. was holding a bowl of popcorn to pass around. Defendant put
his hand between her legs and moved it slowly and firmly up over her clothes. She crossed her
legs. Defendant withdrew his hand and mumbled something about the popcorn bowl.
¶ 18 Cherin testified as follows. In 2018 and 2019, she saw defendant every week at church on
Sunday and frequently during the week. Cherin had had no reason to distrust defendant when she
======= Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'People v. Johanson', which should be replaced with `[CITATION]`. 2024 IL App (2d) 230103-U
dropped off her children at his home. E.M. often sat on defendant’s lap. Cherin and defendant were
usually the only adults present during the football games. In February 2019, when she was
pregnant, Cherin often napped during the games.
¶ 19 Cherin testified that, on May 17, 2019, she drove to defendant’s home to pick up E.M. and
A.M. When they got home, E.M. told Cherin that defendant had been touching her that night.
Cherin asked where; E.M. responded, “ [‘]on my vagina,[’] ” and put her hand over that area. E.M.
said that it had happened previously. The next day, E.M. told Cherin that similar things had
happened at E.M.’s home and in the man cave at defendant’s home. Based on what E.M told her,
Cherin took E.M. to the Kane County Child Advocacy Center (Center).
¶ 20 Cherin testified on cross-examination that E.M. and A.R. often sat on defendant’s lap.
Defendant’s children were usually home when Cherin’s children visited. L.R.’s and M.R.’s
basement bedrooms had curtains for doors and walls that did not go to the ceiling, and M.R.’s
bedroom was five feet from the man cave. The living room was small, and people could mostly
see what others were doing. There was a doorway between the kitchen and the living room, but
there was no door, curtain, or other type of barrier in the doorway. Both rooms were a short walk
from the parents’ bedroom.
¶ 21 Cherin testified that she never saw defendant’s hands in E.M.’s pants or inside the front of
her shirt. When watching football, A.R. and E.M each spent some time sitting on his lap. Cherin
could not recall whether E.M. and defendant were ever covered by a blanket.
¶ 22 Beth Mullarkey, an investigator with the Center, testified that, on May 21, 2019, she
interviewed E.M. A video recording and transcript of the interview were admitted into evidence.
E.M. looked at anatomical diagrams and pointed to where defendant had touched her.
2024 IL App (2d) 230103-U
¶ 23 E.M. told Mullarkey that the first incident occurred at her home when she was nine. While
she sat on defendant’s lap as they watched the football game, he put his hand on her breasts under
her shirt. He also put his hand down the front of her underwear and “rub[bed] and then like g[ot]
in between everything.” E.M did not know whether anyone saw what he was doing. They were not
covered by a blanket. The touching lasted until A.R. called E.M. outside to play.
¶ 24 E.M. told Mullarkey that another incident occurred in defendant’s man cave while the other
younger children played outside. It lasted about 20 minutes. E.M. told Mullarkey: “[Defendant]
was just rubbing me all over like my shirt, and he was putting his hand under my underwear lots
of times. *** [Defendant’s hand was] rubbing and getting in between my thing.” A third incident
occurred while defendant was playing Settlers at his living room table with L.R., D.R., A.R., and
A.M. present. E.M. was sitting on defendant’s lap. He put his hand under her underwear and “like
rubbed.” E.M. did not believe anyone saw it, “[b]ecause it was under the table.” Afterward, E.M.
told Cherin what had happened. Until she spoke with Mullarkey, E.M. had not told anybody else
about the incident.
¶ 25 The State rested.
¶ 26 M.R. testified for the defense that he was born on July 21, 2002, and lived in defendant’s
home until 2021. The basement bedrooms had makeshift doors. The lock on the door to the man
cave was broken. While watching football at E.M.’s home, M.R. usually sat on the couch and had
a clear view of defendant, who sat in a chair next to the couch. E.M. often sat on defendant’s lap,
but M.R. never saw them sitting under a blanket. Defendant was an avid fan and would stand up,
move around, and yell a lot. M.R. never saw defendant touch E.M. inappropriately.
¶ 27 M.R testified that his family often played Settlers in the living room. The game used dice
and cards. Defendant was always both the “banker” and a player, so his hands were busy much of
2024 IL App (2d) 230103-U
the time. D.R. played regularly, L.R. played occasionally, and the younger children never did.
E.M. “[m]aybe” sat on defendant’s lap sometimes, but it would not be “stable ground to sit on” for
long. M.R. identified several photographs of the living room as it appeared during these games.
When defendant was playing, there was room to walk behind his chair. M.R. never saw defendant
touch E.M. inappropriately during these games. M.R. was asked: “[I]f you are playing the game
of Settlers, would you have been facing [defendant], looking into his direction or been able to see
his hands and his lap?” M.R. answered, “Yes. To play the game you need to.”
¶ 28 On cross-examination, M.R. testified that the man cave door was partially warped, so that
a person could see part of the room even when it was closed. James was sometimes home during
the football-watching gatherings. A typical Settlers game lasted 20 or 30 minutes. On redirect,
M.R. testified that he, Melissa, and L.R had access to the man cave and that the younger children
could also enter. M.R. spent a fair amount of time in his bedroom, where he could hear the younger
children playing around the house.
¶ 29 L.R testified as follows. She resided in defendant’s house until November 2020 and had
known E.M. since birth. L.R. was 18 or 19 when the events at issue occurred. The younger children
would be in and out of the living room during the football games. E.M. often sat on defendant’s
lap, sometimes without prompting. L.R usually sat on the couch and could see defendant and E.M.
clearly. She could not recall if they were covered by a blanket when E.M. sat on the defendant’s
lap. She never saw defendant touch E.M. inappropriately.
¶ 30 L.R. testified that, during Settlers games, defendant was always the banker, who “had a lot
of duties to do during the game.” Asked whether defendant’s hands were “always in motion during
the game,” L.R. testified, “Not always but consistently.” The younger children would be in and
out of the living room, sometimes under the table or on the floor. When E.M. was on defendant’s
2024 IL App (2d) 230103-U
lap, she “would *** be able to sit there for a long period of time,” but L.R could not recall whether
E.M. ever did. L.R. could see defendant’s hands during the Settlers games, and she never saw him
[SEGMENT 3]
put them under E.M.’s shirt or in her pants or otherwise touch E.M. inappropriately. L.R. identified
photographs of people playing Settlers in the living room as it was laid out in 2018 and 2019. In
the photographs, defendant was sitting in the same chair where L.R. recalled him sitting during the
games. Asked whether anything would have obstructed her view of defendant and his lap during
a game, L.R. testified, “The table. Nothing else I can think of.”
¶ 31 L.R. testified that, when defendant was in the man cave by himself, it “would *** be easy”
for another family member to go in and out of the room. L.R. sometimes went to the man cave to
use the computer. L.R. could not recall if the door to the man cave could be locked. If E.M. and
A.M. were in the basement, L.R. might be able to hear them from her room, but if they were in the
man cave with the door closed, probably not.
¶ 32 On cross-examination, L.R. testified that, during the football games, it was not unusual for
E.M. to sit on defendant’s lap. When E.M. did so, it would not distract L.R. from watching the
game.
¶ 33 D.R. testified as follows. He was 15 years old and had known E.M. for as long as he could
remember. During the period at issue, he and A.R. would often play with E.M. and A.M. On the
last day that he saw E.M., D.R. played Settlers with defendant and L.R. Defendant was the “banker
or dealer” and was busy during the game. A.R. and A.M. were in and out of the house. E.M. was
outside half the time and sitting on defendant’s lap the other half. Defendant gave E.M. math
problems to solve during the game. Defendant’s hands were on the table most of the time. Asked
whether he could see defendant’s lap and E.M.’s pants from his vantage point, D.R. testified,
“Mostly.” During the game, D.R. never saw defendant’s hands in E.M.’s pants, under the front of
2024 IL App (2d) 230103-U
her shirt, or otherwise touching her inappropriately. D.R. saw no inappropriate touching during
any Settlers game.
¶ 34 D.R. testified that he could enter and leave the man cave when defendant was in there.
While the football games were on at E.M.’s house, D.R. sometimes watched and sometimes went
elsewhere. When E.M sat on defendant’s lap, D.R. never saw him touch her inappropriately.
¶ 35 Melissa testified as follows. By 2019, she had known Cherin for about 10 years. She had
known E.M. and A.M. since they were born. Melissa identified photographs of the man cave, the
living room, and the kitchen as they appeared in 2018 and 2019. Anyone in the family could use
the man cave. The door did not lock. L.R. and M.R. had bedrooms downstairs, but the rooms did
not have doors. To walk from the kitchen through the living room and into her bedroom required
about 12 steps. The door between the kitchen and the living room was generally left open,
including during Settlers games. During the period at issue, E.M. and A.M. came over once or
twice a month to play or be babysat. Melissa was usually home then. She never saw defendant
touch E.M. inappropriately.
¶ 36 On cross-examination, Melissa testified that sometimes she was not home when Settlers
was being played. On May 17, 2019, she went to a prayer meeting with Cherin but came home
while family members were still seated around the game board. Cherin then took E.M. and A.M.
home.
¶ 37 After hearing arguments, the trial court issued a written decision, finding defendant guilty
of five counts (I, II, IV, V, and VII) and not guilty of the remaining five counts (III, VI, VIII, IX,
and X). The court explained that the State’s evidence established three main incidents: (1) the
football game incident in E.M.’s home, to which related one count of predatory criminal sexual
assault of a child (count III) and two counts of aggravated criminal sexual abuse (counts VI and
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====== End of Document ====== 2024 IL App (2d) 230103-U
VIII); (2) the man cave incident in defendant’s home, to which related one count of predatory
criminal sexual assault of a child (count I) and two counts of aggravated criminal sexual abuse
(counts IV and VII); and (3) the board game incident in defendant’s home, to which related one
count of predatory criminal sexual assault of a child (count II) and two counts of aggravated
criminal sexual abuse (counts V and X). The court found that, although E.M. testified consistently
with her statements to Mullarkey, the State proved defendant’s guilt beyond a reasonable doubt as
to only the board game and man cave incidents.
¶ 38 The court explained that, although E.M. testified that defendant touched her vagina and
breasts while they watched football, the evidence showed that several people were in the room at
the time, they could easily see defendant and E.M., and defendant and E.M. were not covered by
a blanket. “Any person at any time would only need to turn their head to observe the abuse.” Thus,
the State had not proved any charges arising from this incident.
¶ 39 However, the trial court concluded that the State did prove beyond a reasonable doubt that
defendant had committed the offenses based on the man cave incident. The court noted that E.M.’s
testimony was corroborated by James’s testimony that he discovered defendant alone with E.M.
in the man cave with the door closed while the other people were elsewhere in the house.
¶ 40 Also, the State proved two of the charges (counts II and V) based on the board game
incident. The court reasoned that the table would have hidden from view defendant’s touching of
E.M.’s vagina. The court also noted that E.M. did not testify that he touched her chest—contact
that would not have been hidden. Further, E.M.’s account was corroborated by her prompt outcry
to Cherin. However, count X, based on the unspecified “bump” E.M. claimed to have felt while
she was on defendant’s lap, was not proved beyond a reasonable doubt. The court also found
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defendant not guilty of count IX, a fourth alleged instance of aggravated criminal sexual abuse,
because no evidence was presented on it.
¶ 41 Defendant filed a posttrial motion, contending in part that he was not proved guilty beyond
a reasonable doubt. In denying the motion, the trial court explained that it acquitted defendant of
the charges based on the football game incident because the State provided no evidence that
defendant’s actions could have evaded notice. However, the evidence was stronger for the
convictions based on the man cave incident, during which defendant and E.M. were unobserved
until James opened the door and saw them together in circumstances that corroborated E.M.’s
testimony. The convictions based on the board game incident were also consistent with the context:
in contrast to the setting of the football game incident, the living room table obscured others’ view
of E.M.’s lower body (but, as noted, the court found that the State did not prove count X). Thus,
the court explained, the different findings were based on the different levels of corroboration for
E.M.’s testimony and statements to Mullarkey.
¶ 42 At sentencing, the trial court determined that counts IV and V were lesser included offenses
of, and therefore merged into, counts I and II. Therefore, the trial court imposed sentence on only
counts I, II, and VII. The court sentenced defendant to minimum prison terms of six years for each
conviction of predatory criminal sexual assault of a child (counts I and II) and three years for
aggravated criminal sexual abuse (count VII), all sentences to be consecutive. Defendant filed a
timely appeal.
¶ 43 II. ANALYSIS
¶ 44 A. Sufficiency of the Evidence
¶ 45 On appeal, defendant contends first that the evidence did not prove him guilty beyond a
reasonable doubt of any of the charges he was convicted of. Defendant argues that the evidence
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the trial court relied on—primarily, E.M.’s testimony and out-of-court statements to Mullarkey—
was so inherently implausible that the court could not reasonably find that he committed the acts.
Principally, defendant argues that, had he committed the offenses, his actions could not have
escaped the notice of everyone present at the time. The State responds that defendant essentially
asks us to retry him and that the evidence was stronger than he portrays it.
¶ 46 In considering the sufficiency of the evidence, we ask only whether, after viewing the
evidence in the light most favorable to the prosecution, any reasonable fact finder could have found
the essential elements of the charged offense beyond a reasonable doubt. [CITATION]. The credibility of the witnesses and the weight to assign the evidence are
[SEGMENT 4]
within the prerogative of the fact finder. [CITATION]. We must
allow all reasonable inferences from the evidence in favor of the prosecution. [CITATION],
¶ 47 Defendant concedes much. He does not directly attack E.M.’s credibility. He grants that
her testimony was generally clear and consistent. Further, he suggests no motive for her to testify
falsely or selectively. We agree with the State that E.M. was consistent in her testimony and out-
of-court statements, both to Mullarkey about all of defendant’s acts and to her mother very shortly
after the board game incident. Further, the evidence allowed a strong inference that E.M. would
not have made such serious allegations against defendant unless she knew they were true. Their
families had had a close and harmonious relationship before the events at issue. E.M. and
defendant’s daughter A.R. had been dear friends for several years, and E.M. had long been fond
of defendant, often sitting on his lap without prompting.
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2024 IL App (2d) 230103-U
¶ 48 Defendant nonetheless contends that other facts were so compelling as to require a
reasonable doubt of his guilt. We now examine the board game and man cave incidents to evaluate
the specifics of defendant’s arguments.
¶ 49 On the board game incident, defendant argues essentially that (1) he could not have been
so daring as to commit criminal acts around so many others who would have noticed his acts and
(2) because he was playing the board game, acting as the dealer, and giving E.M. math problems,
he had no opportunity to use his hands as E.M. described. We find neither argument compelling.
¶ 50 On (1), there was evidence from which the trial court reasonably found that the table
obscured the others’ view of defendant’s hands and E.M.’s lap, such that defendant was not so
reckless after all. E.M., who was (literally) in a position to know, testified that the table obscured
the others’ view of her lap. L.R. implicitly conceded that the table obscured her view of defendant’s
lap and E.M.’s lower body, and D.R. testified that he could “[m]ostly” see these areas. M.R.
testified that he would have been able to see defendant’s hands and lap while playing the game.
To the extent this testimony contradicted E.M., the court could credit her accounts over the others.
The court could also examine the table photographs and infer that defendant could conceal the
movement of his hands near E.M.’s lower body. Although defendant claims that the table was not
high enough to hide most of E.M.’s body, he provides no support for this assertion, and the record
does not disclose E.M.’s height at the time.
¶ 51 On (2), defendant likewise cites insufficient evidence to compel a reasonable doubt. Both
L.R. and D.R. testified that defendant’s hands were busy during the game, but their testimony,
even if credited, was not inconsistent with E.M.’s. Neither defense witness testified that
defendant’s hands were always in use above the table, but only that he used his hands
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“consistently” (in L.R.’s description). The trial court could reasonably infer that there were pauses
sufficient to allow defendant to move one hand out of view to touch E.M.’s private area.
¶ 52 In sum, viewing the evidence in the light most favorable to the prosecution, we conclude
that defendant was proved guilty beyond a reasonable doubt of predatory criminal sexual assault
of a child and aggravated criminal sexual abuse in the board game incident. E.M.’s clear and
consistent statements, her lack of a motive to falsify, and the corroboration by her prompt
complaint to her mother far outweighed any countervailing evidence.
¶ 53 We turn to the man cave incident. Defendant raises essentially two challenges: (1) the
alleged act took place inside a room that was only a few feet from the older children’s bedrooms
and was accessible to anyone in the home, and (2) when James discovered defendant and E.M. in
the man cave, neither of them showed any sign that defendant had engaged in improprieties with
E.M.
¶ 54 Again, defendant argues that the trial court was obligated to discredit the straightforward
and consistent statements of a complaining witness who had no bias or motive to testify falsely.
Further, to the extent that defendant relies on circumstantial evidence, the circumstances largely
corroborated E.M.’s testimony.
¶ 55 The setting of the incident actually helped the trial court to infer that defendant’s actions
were neither reckless nor easy to discover. The court heard evidence that defendant went to the
kitchen, where the younger children were gathered, and specifically requested that E.M.
accompany him downstairs to the man cave. That conduct allowed a fair inference that defendant
had an improper purpose in mind and that what he intended was something to keep hidden. Further,
there was evidence not only that the smaller children were outside playing at the time (perhaps at
defendant’s suggestion) but also that L.R. was not home. There was no evidence that M.R. was
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home, much less that he was in his bedroom. Moreover, M.R. testified that, with the door to the
man cave closed (albeit imperfectly because of a warped door), he would be unable to hear what
went on there. And, since E.M. was hesitant to complain to anyone about defendant’s conduct,
there was likely not much to be heard anyway.
¶ 56 Defendant’s second subargument is also unavailing. The trial court could reason that
defendant had either completed his offense before James arrived or heard someone coming and
withdrew his hands from their incriminating position. There was also evidence that he had
practiced this type of abuse (E.M. stated that he had done it on previous occasions) and would not
panic at the thought of being discovered.
¶ 57 We hold that defendant was proved guilty beyond a reasonable doubt of all three offenses.
¶ 58 B. Proportionate Penalties Claim
¶ 59 Defendant’s second claim of error is that his two Class X sentences for predatory criminal
sexual assault of a child (counts I and II) violate the proportionate penalties clause, which states,
“All penalties shall be determined both according to the seriousness of the offense and with the
objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Defendant
argues that, as charged, the two offenses contained the identical elements as the lesser-included
Class 2 offenses of which he was also found guilty (counts IV and V, charging aggravated criminal
sexual abuse). He concludes that this arbitrary disparity requires resentencing based on the Class
2 range. We disagree.
¶ 60 Recently, in [CITATION], our supreme court decided this precise
issue. The defendant in [CITATION] argued that predatory criminal sexual assault of a child and
aggravated criminal sexual abuse had identical elements because his acts, as charged, satisfied the
- 16 - 2024 IL App (2d) 230103-U
elements of both offenses. [CITATION] ¶ 15. The court interpreted defendant’s argument as an as-applied
challenge but explained that such a challenge is not appropriate under the identical elements test:
“The identical elements test compares the elements of two offenses to determine if the
offenses are the same. [CITATION.] This objective test does not consider the offenses as
applied to an individual defendant. [CITATION.] Rather, the question of whether the elements
of one offense are the same as those of another offense turns on that statutory language,
not the facts alleged in a particular case. *** That defendant’s acts in this case constituted
both offenses shows only that aggravated criminal sexual abuse may be a lesser included
offense of predatory criminal sexual assault of a child in some cases, but that does not make
the elements identical.” [CITATION] ¶ 16.
The court then determined that the two offenses did not have identical elements, because, unlike
predatory criminal sexual assault of a child, a person can commit aggravated criminal sexual abuse
without touching the victim’s sex organ or anus. [CITATION] ¶¶ 14, 17. Based on [CITATION], we reject
defendant’s proportionate penalties claim.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 63 Affirmed.
- 17 -
NOTICE
IL App (4th) 230284-U
This Order was filed under
FILED
Supreme Court Rule 23 and is May 31, 2024
NO. 4-23-0284
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
SEAN S., ) No. 20CF223
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
[SEGMENT 5]
JUSTICE TURNER delivered the judgment of the court.
Justices Lannerd and DeArmond concurred in the judgment.
ORDER
¶1 Held: Defendant’s 45-year sentence for predatory criminal sexual assault of a child was
not excessive and did not violate the proportionate penalties clause.
¶2 In 2020, the State charged defendant, Sean S., by information with seven counts
of predatory criminal sexual assault of a child, two counts of aggravated criminal sexual abuse,
one count of indecent solicitation of a child, one count of sexual exploitation of a child, and one
count of battery. The charges involved two minor victims. After a bench trial, the Livingston
County circuit court entered a written order finding defendant guilty of one count of indecent
solicitation of a child, one count of sexual exploitation of a child, one count of predatory criminal
sexual assault of a child, and one count of aggravated criminal sexual abuse. Defendant filed a
posttrial motion challenging the guilty findings. At a joint November 2022 hearing, the court
denied defendant’s posttrial motion and sentenced defendant to a 5 year prison term for indecent solicitation of a child, to run concurrently with consecutive prison terms of 45 years for
predatory criminal sexual assault of a child and 5 years for aggravated criminal sexual abuse.
Defendant filed a motion to reconsider his sentence, which the court denied.
¶3 Defendant appeals, contending his 45-year sentence for predatory criminal sexual
assault of a child (1) was excessive and (2) violates the proportionate penalties clause of the
Illinois Constitution (Ill. Const. 1970, art. I, § 11). We affirm.
¶4 I. BACKGROUND
¶5 Counts I through VI of the State’s September 2020 complaint each asserted
defendant committed predatory criminal sexual assault of a child between June 23, 2015, and
September 1, 2019, and the victim was C.J.M. (born in June 2009). [CITATION]. The other three charges alleged, between August 1, 2019, and August 15, 2020,
defendant committed indecent solicitation of a child ([CITATION]) (count
VII), sexual exploitation of a child ([CITATION]) (count VIII), and
battery ([CITATION]) (count IX) against N.R.C. (born in September 2005).
In its October 2020 supplemental information, the State charged, between May 1, 2017, and
September 5, 2019, defendant, who was 17 years of age or older, knowingly committed an act of
sexual contact, however slight, with N.R.C., who was under the age of 13, by placing his penis
on N.R.C.’s hand for the purposes of sexual gratification or arousal of N.R.C. or defendant
(count X). [CITATION]. The other two charges asserted, between May
1, 2017, and September 5, 2019, defendant committed aggravated criminal sexual abuse of
N.R.C. (counts XI and XII). [CITATION]). Later, at the State’s
request, the trial court dismissed counts VI, IX, and XII.
¶6 In January 2022, the trial court commenced a bench trial on the remaining charges
against defendant. The State presented the testimony of the following: (1) Jenny D., N.R.C.’s
mother; (2) N.R.C.; (3) Zachary Benning, a Livingston County sheriff’s detective; (4) C.J.M.;
(5) Amanda M., C.J.M.’s mother; (6) Dr. Channing Petrak, medical director of the Pediatric
Resource Center; (7) Megan Workman, a forensic interviewer at the McLean County Children’s
Advocacy Center, and (8) Ryleigh K., N.R.C.’s friend. Defendant testified on his own behalf
and presented the testimony of the following: (1) Robert S., his father; (2) Dianna S., his
mother; and (3) Renee D., Jenny’s sister. The evidence relevant to the issues on appeal follows.
¶7 Jenny testified Renee had dated defendant and had two children with him. At the
time of trial, Jenny had known defendant for seven years and had considered him family until
August 2020. On August 21, 2020, N.R.C. approached Jenny and spoke with her. She was
crying and “kind of shaky.” After their conversation, an altercation occurred between Matt C.,
N.R.C.’s father, and defendant. The police were then called. Jenny had considered defendant
family and trusted him with N.R.C. In early 2017, defendant and Renee had helped Jenny and
Matt switch bedrooms in their home. Between May 2017 and September 2019, N.R.C. would
spend the night with defendant, Renee, and defendant’s daughter, C.J.M. Jenny testified N.R.C.
never liked being alone with defendant and had expressed not liking him.
¶8 N.R.C. testified, while her parents were moving things around the house, several
incidents took place between her and defendant. N.R.C. was in fourth grade at the time. During
the first incident, defendant put his hand down her jeans and touched her butt beneath her
underwear while she stood in the kitchen. The second incident occurred when N.R.C. and
defendant were in a bedroom. There, defendant told her to look down the laundry chute. When
she did so, defendant put his hand on her butt over her clothes. The third incident took place
when N.R.C. was sitting alone in the living room and could see the doorway to the bathroom.
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'People v. Johanson', which should be replaced with `[CITATION]`. Defendant opened the door to the bathroom and had his penis out. N.R.C. explained defendant’s
pants were down around his thighs and she could see his penis. N.R.C. testified defendant “was
playing with it,” which she described as “kind of like swinging it around.” Defendant chased her
with his penis in his hands, and she ran under the dining room table. Defendant told her it was
okay to touch his penis. Defendant tried getting N.R.C. to touch his penis. Eventually, he
returned to the bathroom. Last, defendant touched her butt over her nightgown when he was
playfully throwing her on the couch. N.R.C. testified other children were present during the last
incident.
¶9 N.R.C. testified about other occasions in which she observed defendant’s penis.
One time was at defendant’s home in Odell, Illinois, which, like her house, had a bathroom near
the living room. N.R.C. again saw defendant standing in the doorway of the bathroom with his
pants down and playing with his penis. N.R.C. also testified about a time defendant took N.R.C.
and her friend Ryleigh on a golf cart ride. Defendant would only let her drive the golf cart if she
sat on his lap. As she went to sit down, N.R.C. saw defendant’s penis was partially sticking out
of the top of his shorts. N.R.C. sat in front of defendant, and defendant used his hands to help
her guide the golf cart. Additionally, N.R.C. testified about a time she saw defendant with his
penis out of his shorts while sitting on a couch. Another time, she observed defendant playing
with his penis while he sat on a staircase. At that time, defendant was going back and forth with
his hand on his penis.
¶ 10 On another occasion at her house, N.R.C. was trying to sleep on the couch.
N.R.C. had her back to the couch and her hands near her face. Defendant was helping her father
with something and came into the room with his penis out. N.R.C. was pretending to sleep and
had her eyes partially opened. N.R.C. saw defendant with his hand on his penis and he was
messing with it. Defendant then rubbed his penis back and forth along the back of her fingers.
According to N.R.C., the encounter lasted a couple of minutes and ended when her father called
out to defendant.
¶ 11 Moreover, N.R.C. testified about a time she was taking a shower in defendant’s
home in Odell, and he walked into the bathroom with his cell phone. N.R.C. saw a flash and
assumed defendant had taken a photograph of her. She also testified about a time defendant
showed her a pornographic video of him and her aunt Renee.
¶ 12 N.R.C. did not tell her parents about the incidents because defendant threatened
her. N.R.C. first told a friend and C.J.M. about the incidents. In August 2020, she told her aunt
Renee and her mother about the incidents with defendant. N.R.C. attended eighth grade in 2020,
and the incidents all happened before seventh grade because she stopped going to defendant’s
home when she entered seventh grade.
¶ 13 Renee, defendant’s witness, testified she could not “put a number on” the times
defendant was around N.R.C. because Renee would visit Jenny frequently. Most of the time
when defendant was with N.R.C., Renee, her children, N.R.C.’s parents, and N.R.C.’s siblings,
once they were born, were also present. She did not recall if defendant helped Jenny and Matt
[SEGMENT 6]
move furniture in 2017. Renee testified N.R.C. would come over to her and defendant’s home.
She was not present all of the time when defendant was with N.R.C.
¶ 14 Defendant testified he had known N.R.C. since 2013 and denied ever being alone
with her. He recalled helping Jenny and Matt move furniture around their home. Except for
breaks to smoke cigarettes, he and Matt worked continuously. Defendant denied touching
N.R.C.’s butt that day. He also denied exposing his penis to N.R.C. and asking her to touch it.
Defendant further testified he was never without Renee on the golf cart if children were riding in
it.
¶ 15 In rebuttal, Ryleigh testified defendant would let her and N.R.C. drive the golf
cart when no other adults were in it.
¶ 16 On July 29, 2022, the trial court entered a written order finding defendant guilty
of all of the remaining counts involving N.R.C. (counts VII, VIII, X, XI). The court found
defendant not guilty of the counts related to C.J.M. Defendant filed a posttrial motion
challenging the guilty findings.
¶ 17 At a joint hearing on November 30, 2023, the trial court denied defendant’s
posttrial motion. As to sentencing, the State presented the presentence investigation report, a
victim impact statement by Jenny, and the testimony of Detective Benning. The presentence
investigation report showed defendant was 31 years of age and had felony convictions for
carrying/possessing firearms at school, possession of a controlled substance, and retail theft. He
also had misdemeanor convictions for criminal trespass to a vehicle, theft, and criminal sexual
abuse. In Jenny’s victim impact statement, she noted defendant’s actions had impacted her,
Matt, N.R.C., and the extended family. As to N.R.C., Jenny noted, “She has shut herself off
from family.” She also stated N.R.C. has been “traumatized.”
¶ 18 Detective Benning testified, during the course of his investigation of the charges
in this case, he learned defendant was a registered sex offender. As such, defendant had to
register where he was staying if he was gone for more than three nights from his registered
address. The police went to defendant’s registered address every day from August 28 to
September 1, 2022, looking for him, and defendant was not present and had not registered a new
address. On September 1, 2022, defendant’s father was interviewed and told police, on August
28, 2022, defendant had left his vehicle with him and stated he was going on vacation. Detective
Benning also learned of a possible solicitation of a murder for hire by defendant. An inmate in
the county jail told Detective Benning defendant had asked him if he knew a hit man. Defendant
asked additional questions about the hit man and indicated he “wanted to take care of one of his
baby mamas.” An undercover cop posed as the hit man and recorded his conversations with
defendant. Detective Benning recognized defendant’s voice on the recordings and heard
defendant indicate it was Renee he wanted “taken out.” Defendant gave his fellow inmate a map
drawn by him of Renee’s residence. The undercover cop received $500 from a Walmart-to-
Walmart transfer, allegedly from defendant. When questioned by Detective Benning about the
murder-for-hire plot, defendant replied he only stated he wanted Renee killed because the inmate
had threatened to hurt defendant’s children if he did not say that or transfer the money.
¶ 19 Defendant presented eight character letters and made a statement in allocution. In
his statement in allocution, defendant persisted in claiming his innocence and emphasized he was
hard-working and a family man. He described his children as his “world.” He apologized to
everyone who had been a part of the proceedings.
¶ 20 After hearing the parties’ arguments, the trial court sentenced defendant to 5
years’ imprisonment for indecent solicitation of a child, to run concurrent with consecutive
prison terms of 45 years for predatory criminal sexual assault of a child and 5 years for
aggravated criminal sexual abuse. Since the sexual exploitation of a child count was a
misdemeanor, the court only entered a judgment of conviction on that count. Defendant filed a
motion to reconsider his sentence arguing his sentence was excessive because the court
improperly considered an alleged subsequent crime. After a March 29, 2023, hearing, the court
denied the motion to reconsider noting the subsequent solicitation of murder charge was not a
significant factor in sentencing. The court explained it had referenced the murder-for-hire plot in
regard to defendant’s credibility.
¶ 21 On March 29, 2023, defendant filed a timely notice of appeal in sufficient
compliance with Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021). Accordingly, this court
has jurisdiction of defendant’s appeal under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013).
¶ 22 II. ANALYSIS
¶ 23 A. Excessive Sentence
¶ 24 We first address defendant’s contention his 45-year sentence for predatory
criminal sexual assault of a child was excessive. The State disagrees.
¶ 25 The Illinois Constitution mandates “[a]ll penalties shall be determined both
according to the seriousness of the offense and with the objective of restoring the offender to
useful citizenship.” Ill. Const. 1970, art. I, § 11. In sentencing a defendant, the circuit court
must consider a number of statutory aggravating and mitigating factors. See 730 ILCS 5/5-5-3.1,
5-5-3.2 (West 2022). However, “the seriousness of an offense is considered the most important
factor in determining a sentence.” [CITATION]
¶ 26 With excessive sentence claims, this court has explained appellate review of a
defendant’s sentence as follows:
“A trial court’s sentencing determination must be based on the particular
circumstances of each case, including factors such as the defendant’s credibility,
demeanor, general moral character, mentality, social environment, habits, and
age. [Citations.] Generally, the trial court is in a better position than a court of
review to determine an appropriate sentence based upon the particular facts and
circumstances of each individual case. [Citation.] Thus, the trial court is the
proper forum for the determination of a defendant’s sentence, and the trial court’s
decisions in regard to sentencing are entitled to great deference and weight.
[Citation.] Absent an abuse of discretion by the trial court, a sentence may not be
altered upon review. [Citation.] If the sentence imposed is within the statutory
range, it will not be deemed excessive unless it is greatly at variance with the
spirit and purpose of the law or is manifestly disproportionate to the nature of the
offense. [Citation.]” (Internal quotation marks omitted.) [CITATION]
See also [CITATION] The
sentencing range for predatory criminal sexual assault of a child is 6 to 60 years’ imprisonment
(720 ILCS 5/11-1.40(b)(1) (West 2022)). Thus, defendant’s 45-year prison sentence was within
the proper statutory range.
¶ 27 Defendant asserts his 45-year sentence is excessive because (1) it is grossly
disproportionate to the seriousness of the offense, (2) the trial court gave inadequate
consideration to the evidence in mitigation, (3) the court placed undue weight on deterrence, and
(4) it is a de facto life sentence.
¶ 28 The record shows the trial court considered the appropriate factors in aggravation
and mitigation. The court specifically stated it had considered the presentence investigation
report (containing defendant’s age and criminal record), the letters, the victim impact statement,
defendant’s statement in allocution, and counsel’s arguments. The court expressly explained
why a sentence towards the lower end of the sentencing range was not appropriate. It stated the
following:
“So when I consider this, I don’t think this is a low end given your prior
record, given the fact that you are a registered sex offender at the time, given your
current record, given that deterrence is perhaps one of the strongest factors in this
case, given that you held a position of trust and authority with this young lady and
caused very serious harm to her, given the fact that I can’t find one mitigating
factor that is present, and given the fact that I do firmly believe that the public
needs to be protected from you, I think that a sentence in the higher range is much
more appropriate in this case.”
Thus, even though the offense at issue did not involve sexual penetration of the victim, the court
set forth numerous reasons why a sentence towards the lower end of the sentencing range was
not appropriate.
¶ 29 In its aforementioned explanation, the trial court’s comment it did not find a
mitigating factor does not indicate a failure to consider the factors in mitigation or the mitigating
evidence presented at the sentencing hearing. Moreover, its comment “deterrence is perhaps one
of the strongest factors in this case” does not indicate the court found deterrence was more
important than the seriousness of the offense. Before the aforementioned comment, the court
had addressed the seriousness of the offense. Also, defendant’s record and prior sex crime
indicate a decreased rehabilitative potential. Defendant’s arguments on appeal essentially ask
this court to substitute our judgment for that of the trial court by reweighing the relevant factors,
which is “an improper exercise of the powers of a reviewing court.” [CITATION]
[SEGMENT 7]
¶ 30 Based on our review of the record, we find defendant’s 45-year sentence for
predatory criminal sexual assault of a child was not “greatly at variance with the spirit and
- 10 - purpose of the law or *** manifestly disproportionate to the nature of the offense.” (Internal
quotation marks omitted.) [CITATION], ¶ 36. Accordingly, the trial court
did not abuse its discretion in sentencing defendant to 45 years’ imprisonment for predatory
criminal sexual assault of child.
¶ 31 B. Proportionate Penalties
¶ 32 Defendant also contends his conviction and sentence for predatory criminal sexual
assault of a child violates the proportionate penalties clause.
¶ 33 Constitutional challenges are divided into two categories: facial and as-applied.
[CITATION], ¶ 24, 61 N.E.3d 92. Our supreme court has emphasized the
two types of challenges are not interchangeable, and fundamental distinctions between them
exist. [CITATION], ¶ 24. Moreover, a defendant may establish a violation of the
proportionate penalties clause in two manners. [CITATION]. The defendant may argue the penalty for a particular offense is (1) too
severe, which is judged under the “ ‘cruel or degrading’ standard,” or (2) harsher than the penalty
for a different offense that contains identical elements. [CITATION]. Here, defendant raises both a facial and as-applied challenge under the identical elements
test.
¶ 34 With his facial challenge, defendant recognizes the Second District, in [CITATION], ¶¶ 19-20, 211 N.E.3d 902, found the penalty for predatory
criminal sexual assault of a child on its face did not violate the proportionate penalties clause
under the identical elements test when compared to aggravated criminal sexual abuse (720 ILCS
5/11-1.60(c)(1)(i) (West 2018)). However, he asserts the reasoning in [CITATION] conflicted with
supreme court precedent. Given that argument, we held this case in abeyance until our supreme
- 11 - court rendered its decision in Johanson. The supreme court agreed with the Second District the
two offenses do not contain identical elements. [CITATION], ¶ 14. As
such, the penalty for predatory criminal sexual assault of a child does not on its face violate the
proportionate penalties clause.
¶ 35 Defendant also points out the facts asserted in the State’s predatory criminal
sexual assault of a child charge in his case also satisfy the elements of aggravated criminal sexual
abuse. That argument is an as-applied challenge, which is not appropriate under the identical
elements test. Johanson, 2024 IL 129425, ¶ 16; [CITATION], ¶ 29.
¶ 36 Accordingly, defendant has failed to establish his sentence for predatory criminal
sexual assault of a child violates the proportionate penalties clause.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the Livingston County circuit court’s judgment.
¶ 39 Affirmed.
- 12 -
NOTICE
IL App (4th) 230041-U
This Order was filed under
FILED
NO. 4-23-0041 April 22, 2024
Supreme Court Rule 23 and is Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
MASON E. BERTRAND, ) No. 20CF74
Defendant-Appellant. )
) Honorable
) Jennifer M. Ascher,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Justices Lannerd and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s convictions and sentence because (1) the
State presented sufficient evidence for the jury to find defendant guilty beyond a
reasonable doubt of sexual exploitation of a child, (2) defendant’s convictions for
aggravated criminal sexual abuse and unlawful restraint did not violate the one-
act, one-crime rule, (3) defendant was not denied a fair trial, and (4) defendant’s
sentences did not violate the proportionate penalties clause of the Illinois
Constitution.
¶2 In January 2020, defendant, Mason E. Bertrand, was charged with (1) three counts
of predatory criminal sexual assault (720 ILCS 5/11-1.40(a)(1) (West 2018)), (2) three counts of
criminal sexual assault (id. § 1.20(a)(3)), (3) one count of aggravated criminal sexual abuse (id.
§ 1.60(b)), (4) one count of unlawful restraint (id. § 10-3(a)), and (5) one count of sexual
exploitation of a child (id. § 11-9.1(a)(1)). The charges alleged generally that from April 2018 to
May 2019, defendant committed various acts of sexual penetration and conduct with his minor
daughter, A.B. (born May 2006), and, on one occasion, detained A.B. in her bedroom. ¶3 In September 2022, a jury found defendant guilty on all counts. Later, the trial
court sentenced defendant to an aggregate sentence of 69 years in prison.
¶4 Defendant appeals, arguing that (1) the State’s evidence was insufficient to prove
him guilty beyond a reasonable doubt of sexual exploitation of a child, (2) his conviction for
unlawful restraint was based on the same physical conduct as his conviction for aggravated
criminal sexual abuse, in violation of the one-act, one-crime rule, (3) he was denied a fair trial,
and (4) his sentences for the three predatory criminal sexual assault convictions violated the
proportionate penalties clause of the Illinois Constitution ([CITATION]). We
disagree and affirm.
¶5 I. BACKGROUND
¶6 A. The Charges
¶7 In January 2020, the State charged defendant with (1) three counts of predatory
criminal sexual assault, (2) three counts of criminal sexual assault, (3) one count of aggravated
criminal sexual abuse, (4) one count of unlawful restraint, and (5) one count of sexual
exploitation of a child.
¶8 Regarding the predatory criminal sexual assault charges, the State alleged that
between April 1, 2018, and May 23, 2019, defendant, who was over the age of 17 years,
knowingly placed his (1) hand in contact with A.B.’s vagina, (2) penis in contact with A.B.’s
vagina, and (3) penis in contact with A.B.’s anus. The State further alleged that he did each of
these acts for the purpose of sexual gratification or arousal when A.B. was under the age of 13
years.
¶9 Regarding the criminal sexual assault charges, the State alleged that between May
23, 2019, and September 14, 2019, defendant, who was A.B.’s family member and 17 years of
age or older, knowingly placed his (1) finger in A.B.’s vagina, (2) penis in A.B.’s vagina, and
(3) penis in A.B.’s anus when A.B. was under the age of 18 years.
¶ 10 Regarding the aggravated criminal sexual abuse charge, the State alleged that on
or about September 15, 2019, defendant, who was A.B.’s family member and 17 years of age or
older, knowingly placed his hand in contact with the vagina of A.B. for the purpose of the sexual
gratification or arousal of the defendant.
¶ 11 Regarding the unlawful restraint charge, the State alleged that on or about
September 15, 2019, defendant knowingly and without legal authority detained A.B. in a
bedroom located.
¶ 12 Regarding the sexual exploitation of a child charge, the State alleged that between
April 1, 2019, and September 14, 2019, defendant knowingly engaged in a sexual act in the
presence of A.B.
¶ 13 B. The Jury Trial
¶ 14 In September 2022, the trial court conducted defendant’s jury trial.
¶ 15
. The Evidence
¶ 16 a. Jessica B.
¶ 17 Jessica B. testified that she was A.B.’s stepmother and defendant was A.B.’s
father. In September 2019, she was married to defendant and she, defendant, and A.B. lived
together in an apartment in Auburn, Illinois, along with several of A.B.’s siblings. On the
morning of September 15, 2019, around 3 a.m., Jessica woke up and went to the bathroom,
discovering that defendant was not in bed with her. After using the bathroom, Jessica looked
around the house for defendant, eventually opening the door to A.B.’s bedroom and turning the
light on. Jessica testified as follows:
“When I flipped on the light, the first thing I seen was [A.B.] And I noticed that
[SEGMENT 8]
she didn’t have any pants on, and she had a towel underneath her butt, and she
had a blanket across her from her lower abdomen to her face, and she was holding
it up to her face like this. And then the next thing I seen was [defendant] in
between her legs sweating.”
¶ 18 Jessica cursed at defendant and told A.B. to get dressed. Jessica and defendant
had an argument, during which defendant said to her “[h]ow sorry he is and how he will never do
it again.” The next morning, Jessica reached out to Melissa Warwick, the school social worker,
and told her to speak with A.B. that day when A.B. was at school. Later that day, Jessica spoke
with members from the Illinois Department of Children and Family Services.
¶ 19 Jessica thereafter moved out with her biological children. However, A.B.
remained at the residence with defendant for a short time until she moved in with her biological
mother.
¶ 20 Within a week of that incident, defendant began a text message conversation with
Jessica using Facebook Messenger. Screenshots of that conversation were admitted into evidence
as People’s exhibit Nos. 1-A through 1-R. In those messages, defendant begged Jessica to talk to
him about what happened and asked her for forgiveness. At one point, Jessica asked him, “If
[A.B.] got pregnant what would you have done[?] [C]ame to me and say [A.B.] is having your
child or just call her a whore.” Defendant responded, “I wasn’t thinking..that [is] why I am
seeking help….” He further messaged Jessica saying (1) he wished he could “take it all back,”
(2) he “shouldn’t have never ever looked at [A.B.] in that way,” and (3) he did not want the
marriage to end.
¶ 21 On cross-examination, Jessica testified that when she discovered defendant with
A.B., defendant was wearing a shirt and basketball shorts, but the shorts were “barely on.”
¶ 22 b. Melissa Warwick
¶ 23 Warwick testified that she was a social worker for Auburn Community Unit
School District No. 10 and had known A.B. for about six years. Warwick provided group
counseling for students, and A.B. attended that group once a week. On September 16, 2019,
Warwick received a Facebook message from Jessica that caused her concern. After reading the
message, Warwick met with A.B. at her junior high school. Warwick stated the following
regarding that meeting:
“[A.B.] was very visibly upset. *** [H]er hands were shaking when she
came in, which is out of the norm for her, *** because she’s comfortable with me.
She looked as if she probably hadn’t showered in a few days, had a dirty
sweatshirt on, dirty pants on, *** she was crying.”
¶ 24 c. Leah J.
¶ 25 Leah J. testified that she was the biological mother of A.B., who was born in
2006. In September 2019, after Leah received a message from Jessica, she immediately filed for
full custody of A.B. and picked A.B. up from defendant’s care. Later, Leah “confronted”
defendant outside a grocery store about the incident with A.B. Leah testified that defendant “said
that he didn’t know why he did it, he didn’t mean for it to get out of hand like that. He said that
she looked like me, *** just that type of stuff.” He also apologized and gave excuses as to “why
it happened.”
¶ 26 d. Careyana Brenham
¶ 27 Careyana Brenham testified that she was an expert in child sexual abuse
evaluations and she met with A.B. in October 2019. During that meeting, A.B. told Brenham that
defendant had first touched her sexually about a month before her twelfth birthday and he
continued to do so almost nightly up until September 15, 2019, when Jessica walked in on her
and defendant. A.B. indicated that defendant touched her in her genital and anal areas with his
hands, penis, and mouth. She also said that he penetrated her anally and with his penis and
fingers.
¶ 28 e. A.B.
¶ 29 A.B., who was 16 years old at the time of her testimony, stated that on the
morning of September 15, 2019, she woke up to defendant entering her room. A.B. stated, “[H]e
had came in and he started physically touching me,*** specifically fingering me.” A.B. specified
that defendant used his fingers to penetrate her vagina. Defendant then took her clothes off,
including her pants and underwear. There was a towel underneath her at the time. While
defendant was touching A.B., Jessica came into the room and she and defendant began “yelling
and fighting.”
¶ 30 A.B. testified that defendant began touching her sexually when she was 11,
approximately one month before her twelfth birthday. When asked by the prosecutor, “Do you
recall anything happening right when that all started between you and your dad?” A.B. replied, “I
had gone to bed early one night, and I woke up. I went to go get a snack from the fridge and a
drink. I ended up trying to use the restroom, and he was standing in the doorway of the bathroom
touching himself.” A.B. clarified that defendant was touching his penis with his hands. Upon
seeing defendant, A.B. immediately went back to bed, leaving her snack on the kitchen table.
A.B. testified, “[H]e had tried to talk to me [after the incident], but I kind of just ignored it and
tried to leave it at that.”
¶ 31 A.B. further testified that incidents like the one she described from September 15,
2019, occurred frequently, always in her bedroom. On more than one occasion, defendant used
his fingers to penetrate A.B.’s vagina, which occurred “[t]wo or three times a week” and always
at “nighttime.” He had also used his tongue and his penis to penetrate her vagina and penetrated
her anus with his penis. The penetration of her vagina and her anus with his penis occurred when
she was 12 and 13 years old. While the incidents occurred, the rest of the family were in their
rooms. If defendant heard a noise from one of A.B.’s younger siblings, defendant would leave
and “put them back down” to bed.
¶ 32 A.B. further testified that when defendant would penetrate her with his fingers, he
would use his other hand to touch his penis until he left. When asked what caused him to stop
touching himself, A.B. stated as follows:
“[E]ither he would be done or whenever he would hear a noise. ***
[S]ometimes he would just leave or sometimes—***, it wasn’t often that he
would say something to me, but sometimes he would tell me to clean up. ***
[W]hen he would ejaculate, I would have to clean it up or either I would have to
clean up the towel underneath me.”
¶ 33 A.B. testified that she did not know the meaning of “ejaculate” when she was
younger but learned about it as she got older.
¶ 34 When asked by the prosecutor, “Was there ever a time that you tried to get him to
stop?” A.B. replied, “Yes. *** I would try to push him off.” However, he would not get off.
Later, A.B. was asked, “W[ere] there times where you felt like you were not able to leave?” A.B.
replied, “Yes.”
¶ 35 A.B. testified as follows regarding how she felt during the period of her life that
defendant was touching her: “I was extremely depressed. ***[A]nd there was actually times
where I was taken to the hospital to talk about depression. And I was supposed to go to Lincoln
Prairie at least twice, but [defendant] refused to let me go.”
¶ 36 Defendant did not present any evidence.
¶ 37
. The Closing Arguments
¶ 38 During closing arguments, defense counsel asserted that the evidence of
defendant’s guilt was weak, pointing out the lack of forensic evidence. On rebuttal, the
prosecutor explained that although the jury had not heard any forensic evidence, it had heard
eyewitness testimony and circumstantial evidence. The prosecutor stated the following:
“Circumstantial evidence is the proof of facts or circumstances which give
rise to a reasonable inference of other facts which tend to show guilt or innocence
of the defendant. Circumstantial evidence should be considered by you together
with all other evidence in the case in arriving at your verdict. What does that
mean? *** It means that you get to think about all of the evidence that you’ve
heard. You get to hear what happened on September 15th and what Jessica
walked in on. And you get to make the reasonable inference that that is what
occurred on other nights. And, thank goodness, that the events of September 15th
didn’t go further than the other events.”
¶ 39
. Jury Deliberations and Verdict
¶ 40 During jury deliberations, the trial court received three questions. First, the jury
asked, “Can we get Exhibits 1A through 1R?” (referring to the screenshots of the messages
between defendant and Jessica). The parties agreed to send that evidence back to the jury.
[SEGMENT 9]
Second, the jury asked, “Can we get a better definition of Unlawful Restraint?” to which the
court responded by referring the jury to the jury instructions. Third, the jury asked, “Is there any
additional definition of Unlawful Restraint with respect to the term detained? What does
detained mean in this context? Are we talking about physical restraint? Does it specifically mean
detained during the act[?]” The court and the parties determined that an additional definition
would not be appropriate.
¶ 41 Ultimately, the jury found defendant guilty on all counts. Later, the trial court
sentenced defendant to an aggregate prison sentence of 69 years. Defendant filed a motion to
reconsider, arguing that his sentence was excessive because (1) the court did not properly
consider mitigating evidence and (2) the sentence violated the proportionate penalties clause of
the Illinois constitution (Ill. Const. 1970, art. I, § 11). The court denied the motion.
¶ 42 This appeal followed.
¶ 43 II. ANALYSIS
¶ 44 Defendant appeals, arguing that (1) the State’s evidence was insufficient to prove
him guilty beyond a reasonable doubt of sexual exploitation of a child, (2) his conviction for
unlawful restraint was based on the same physical conduct as his conviction for aggravated
criminal sexual abuse, in violation of the one-act, one-crime rule, (3) he was denied a fair trial,
and (4) his sentences for the three predatory criminal sexual assault convictions violated the
proportionate penalties clause. We disagree and affirm.
¶ 45 A. The Sufficiency of the Evidence
¶ 46 Defendant argues that the evidence was insufficient for the jury to find him guilty
of sexual exploitation of a child because the evidence did not show that he had engaged in a
sexual act—specifically, masturbation—in the presence of A.B. Alternatively, defendant argues
the State did not prove beyond a reasonable doubt that A.B. was under 13 years old at the time of
the offense as required for it to be classified as a Class 4 felony instead of a Class A
misdemeanor. See 720 ILCS 5/11-9.1(a)(1) (West 2018). We disagree with both of defendant’s
arguments.
¶ 47
. The Applicable Law and Standard of Review
¶ 48 The Illinois Supreme Court recently reiterated the familiar standard applicable to
a defendant’s challenge to the sufficiency of the evidence. In [CITATION],
¶ 28, 216 N.E.3d 165, the court wrote the following:
“In reviewing the sufficiency of the evidence in a criminal case, this court
asks whether, viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. [CITATION], ¶ 37 [104
N.E.3d 372]. A reviewing court will not substitute its judgment for that of the trier
of fact on questions involving the weight of the evidence or the credibility of
witnesses. Id. All reasonable inferences from the evidence must be drawn in favor
of the State. Id. A criminal conviction will not be overturned unless the evidence
is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt
of the defendant’s guilt. Id.”
¶ 49 “In weighing the evidence, a trier of fact need not search out all possible
explanations consistent with innocence and raise them to a level of reasonable doubt.” Id. ¶ 32.
¶ 50 “A person commits sexual exploitation of a child if in the presence or virtual
presence, or both, of a child and with knowledge that a child or one whom he or she believes to
be a child would view his or her acts, that person: *** engages in a sexual act.” 720 ILCS
5/11-9.1(a)(1) (West 2018). “Sexual act” is defined as “masturbation, sexual conduct or sexual
penetration as defined in Section 11-0.1 of [the Criminal Code of 2012].” Id. § 9.1(b). “ ‘Child’
- 10 - means a person under 17 years of age.” Id.
¶ 51 Although “masturbation” is not defined by statute, that term is commonly
understood to mean “ ‘erotic stimulation involving the genital organs commonly resulting in
orgasm and achieved by manual or other bodily contact exclusive of sexual intercourse.’ ”
[CITATION] (quoting Webster’s Third
New International Dictionary 1391 (1993)). “The definition of masturbation does not require that
a person stimulate his or her genital organ in any specific way; an act constitutes masturbation so
long as the bodily contact erotically stimulates the genital organ.” Id. at 101.
¶ 52
. This Case
¶ 53 Defendant concedes that A.B. testified that she observed defendant “ ‘touching
himself’ on his penis while he was digitally penetrating her,” but he argues that “A.B. did not
testify to any of the hallmarks of masturbation,” which he asserts is testimony regarding
questions such as (1) whether his penis was erect, (2) how he physically manipulated his penis,
or (3) what she meant by the phrase “touching himself.” As an example of testimony that
contains those “hallmarks of masturbation,” defendant quotes the holding in [CITATION], ¶ 88: “The act of a man touching his genitals and moving his hand
up and down, while lying in bed next to a 14-year-old girl that he had repeatedly touched
inappropriately throughout the evening, clearly constituted masturbation.”
¶ 54 Defendant’s argument defies common sense, and to illustrate the absurdity of his
argument, we paraphrase the court’s holding in [CITATION] using the evidence in the present case—
namely, the act of a man touching his penis, while digitally penetrating his daughter’s vagina
after regularly sexually assaulting her for years, clearly constituted masturbation.
¶ 55 Moreover, A.B. testified that defendant touched his penis in front of her on
- 11 - multiple occasions and even expressed that defendant stopped touching himself when “either he
would be done or whenever he would hear a noise.” Removing any possible confusion, A.B. then
said that defendant would ejaculate and make her clean it up. Given this testimony, defendant’s
assertion that “A.B. did not testify to any of the hallmarks of masturbation” is baseless.
¶ 56 Defendant also argues that the State failed to prove that A.B. was under 13 years
old at the time of the offense because (1) the State alleged that he committed sexual exploitation
of a child between the dates of April 1, 2018, and September 14, 2019 and (2) A.B. turned 13
years old in May 2019, making her 13 during the last three months of the date range alleged in
the charging document.
¶ 57 Although (1) defendant concedes that he has forfeited this argument and (2) as we
will discuss infra ¶¶ 77-82, the evidence was not closely balanced, we note that A.B. was 11 and
12 years old for 14 of the 17 months alleged in the indictment and that A.B. testified that similar
incidents where defendant would touch his penis while digitally penetrating her occurred
“extremely often,” which she defined as two or three times a week. Based on this testimony and
construing the evidence in the light most favorable to the State, the evidence was sufficient for
the jury to conclude that he committed the felony offense of sexual exploitation of a child.
¶ 58 B. One-Act, One-Crime
¶ 59 Defendant argues that his “conviction of both unlawful restraint and aggravated
criminal sexual abuse violated the first prong of the one-act, one crime rule because the State’s
only evidence of restraint was inherent in the charged sex offense.” We disagree.
¶ 60
. The Applicable Law and the Standard of Review
¶ 61 Under the one-act, one-crime rule, “a criminal defendant may not be convicted of
multiple offenses when those offenses are all based on precisely the same physical act.” [CITATION]
- 12 - v. [CITATION]. “[A]n ‘act’ [is] any overt or outward
manifestation that will support a separate offense.” [CITATION]. “For the State to properly obtain multiple convictions for connected
acts that might be treated as a series of offenses, the State must apportion the acts to the offenses
in the charging instrument and at trial.” [CITATION].
¶ 62 The test for determining whether a one-act, one-crime violation has occurred
involves a two-step process. “First, the court should determine whether the defendant’s conduct
consists of one physical act or several acts.” [CITATION]. If “the defendant has committed multiple acts, the court should then determine
whether any of the charged offenses are lesser included offenses of another charged offense.” Id.
¶ 24. “If so, then ‘multiple convictions are improper; if not, then multiple convictions may be
entered.’ ” Id. (quoting [CITATION]).
¶ 63
. This Case
¶ 64 Defendant contends that the evidence the State presented for the aggravated
criminal sexual abuse and unlawful restraint contemplated only one act—namely, defendant
digitally penetrating A.B. Accordingly, defendant argues, because there was no other evidence
presented for a separate act by defendant on September 15, 2019, that impeded A.B.’s freedom
[SEGMENT 10]
of movement, the unlawful restraint conviction violates the one-act, one-crime rule. We disagree.
¶ 65 Looking at the charging instruments, the State premised the aggravated criminal
sexual abuse charge on defendant placing his hand in contact with A.B.’s vagina. By contrast,
the State premised the unlawful restraint charge on defendant detaining A.B. in her bedroom.
- 13 - Although these charges could pertain to one act, given A.B.’s testimony that she tried to push
defendant off her but failed to do so, her testimony contemplates at least one act of defendant
physically restraining her against her will that is separate from his act of digitally penetrating her
vagina.
¶ 66 Anticipating our conclusion that A.B.’s testimony referred to separate acts,
defendant asserts that even if that testimony was sufficient to show a separate act from the
aggravated criminal sexual abuse, the State’s reliance on the act of holding A.B. down against
her will constitutes a change in the State’s theory of the case, which cannot now provide a basis
for defendant’s unlawful restraint conviction. See [CITATION] (“[T]o apportion the
crimes among the various stab wounds for the first time on appeal would be profoundly unfair.”).
However, defendant preventing A.B. from pushing him off her is entirely consistent with the
State’s theory of the case as set out in (1) the charging instrument, which says that defendant
detained A.B. in her room, and (2) the State’s opening and closing arguments, which highlighted
A.B.’s attempt to escape from under defendant.
¶ 67 Accordingly, defendant’s conviction for unlawful restraint does not violate the
one-act, one-crime rule.
¶ 68 C. Defendant’s Fair Trial Claims
¶ 69 Defendant argues that he was denied a fair trial because (1) the prosecutor
misstated the law during closing arguments when she told the jury that it “could consider proof
of one charged crime as creating an inference that [defendant] had a propensity to commit the
other charged crimes” and (2) the trial court violated Illinois Supreme Court Rule 431(b) (eff.
July 1, 2012) when it failed to ask every member of the jury whether they understood and
accepted each of the Zehr principles (see [CITATION]
- 14 - (1984)). In the alternative, defendant argues that cumulative error denied him a fair trial. We
disagree.
¶ 70 As an initial matter, defendant concedes he has forfeited these claims on appeal
because he did not raise any of these claims in the trial court. See [CITATION], ¶ 44, 155 N.E.3d 577 (“A defendant forfeits an issue for purposes of appellate review by
failing to object to the alleged error or raise it in a written posttrial motion.”). Nonetheless, he
contends that we may review his claims as either first-prong plain error or ineffective assistance
of counsel.
¶ 71
. The Applicable Law
¶ 72 a. Plain Error
¶ 73 The usual first step under either prong of the plain-error doctrine is to determine
whether there was an error at all. [CITATION], ¶ 17, 93
N.E.3d 597. When a defendant claims first-prong plain error, he must prove that an error
occurred and that the evidence was so closely balanced that the error alone severely threatened to
tip the scales of justice against him. Id. ¶ 26. When determining whether the evidence was
closely balanced, a reviewing court must evaluate the totality of the evidence and conduct a
qualitative, commonsense assessment of it within the context of the case. [CITATION], ¶ 53, 89 N.E.3d 675. Typically, the evidence is closely balanced if “the outcome of
this case turned on how the finder of fact resolved a ‘contest of credibility.’ ” Id. ¶ 63 (quoting
[CITATION], 893 N.E.2d 653, 667 (2008)). A “contest of
credibility” exists when (1) both sides presented a plausible version of events and (2) there is no
extrinsic evidence to corroborate or contradict either version. Id. ¶¶ 60-63.
¶ 74 b. Ineffective Assistance of Counsel
- 15 - ¶ 75 “To demonstrate ineffective assistance of counsel, a defendant must show that
(1) the attorney’s performance fell below an objective standard of reasonableness and (2) the
attorney’s deficient performance prejudiced the defendant in that, absent counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding would have been
different.” [CITATION] (citing [CITATION]). “A reasonable probability is a probability which
undermines confidence in the outcome of the trial.” [CITATION]. “Because the defendant must satisfy both prongs of this test, the
failure to establish either is fatal to the claim.” [CITATION] (citing [CITATION]).
¶ 76
. This Case
¶ 77 Here, defendant’s claims of plain error and ineffective assistance of counsel fail
because (1) the evidence was not closely balanced and (2) even if his attorney’s performance was
deficient, defendant was not prejudiced.
¶ 78 Defendant argues that the evidence was closely balanced regarding (1) the three
counts of predatory criminal sexual assault, (2) the three counts of criminal sexual assault, and
(3) the single count of sexual exploitation of a child. Specifically, defendant argues that the
State’s evidence regarding those counts “boiled down to one thing: A.B. claiming to others that
[defendant] committed various acts.” Defendant contends that the evidence amounts to a
credibility contest because (1) “the State did not present any direct evidence, such as the
testimony of an eyewitness or physical evidence, that the events alleged in the remaining counts
occurred” and (2) defendant pleaded not guilty to the charges.
¶ 79 This argument is completely without merit. Defendant is incorrect that the State
- 16 - did not present eyewitness evidence because the State presented the testimony of A.B., who is
both the victim and eyewitness of defendant’s assaults.
¶ 80 Further, defendant does not point to anything in the record showing why this case
is closely balanced, nor does he argue that A.B.’s testimony was not credible or insufficient to
support the charges against him. Instead, defendant implicitly asks this court to conclude as a
matter of law that the unimpeached testimony of a sex crime victim against the not guilty plea of
a defendant makes the case closely balanced because the convictions came down to the
credibility of one witness—in defendant’s words, “a credibility contest.”
¶ 81 Again, this contention is completely without merit. As the supreme court recently
explained, in the absence of a defendant’s testimony or other contrary evidence, a “credibility
contest” cannot exist when the jury heard only one account of what happened. See [CITATION]
(concluding there is not a credibility contest when there are not competing accounts); see also [CITATION] (The Third District opinion the supreme court reversed, in which Justice Schmidt wrote in dissent the following: “The majority finds the evidence closely
balanced because of a ‘credibility contest.’ *** What credibility contest? Not one witness
contradicted the victims’ testimony.”).
¶ 82 Although the absence of a “credibility contest” is not fatal to defendant’s claim
(see [CITATION] (noting that the defendant’s decision not to present evidence
was not fatal to a first-prong plain-error argument)), we nonetheless conclude that the evidence
of defendant’s guilt was overwhelming because (1) A.B.’s testimony was consistent and
uncontradicted and (2) her credibility was bolstered by her mother’s testimony and defendant’s
messages corroborating her account of the assault on September 15, 2019. Further, because the
- 17 - evidence was overwhelming, even if we agreed with defendant that his attorney performed
deficiently in the manners defendant alleged, there is not a reasonable probability that absent
those errors the outcome would have been different.
¶ 83 Accordingly, defendant’s claims of plain error and ineffective assistance of
counsel fail.
¶ 84 D. The Proportionate Penalties Clause
¶ 85 Last, defendant argues that the trial court erred by imposing Class X sentencing
for counts 1 through 3 in violation of the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970, art. I, § 11) because subsection (a)(1) of the predatory criminal
sexual assault statute (720 ILCS 5/11-1.40(a)(1) (West 2018)) and subsection (c)(1)(i) of the
aggravated criminal sexual abuse statute (id. § 11-1.60(c)(1)(i)) have identical elements but carry
different penalties.
¶ 86 The supreme court recently addressed this exact issue in [CITATION],
¶ 14, writing as follows:
“The plain language of these statutes demonstrates a clear difference
between the two offenses. Although both require the victim to be under the age of
, aggravated criminal sexual abuse concerns any touching or fondling for
purposes of sexual gratification or arousal, whereas predatory criminal sexual
assault of a child requires direct contact with the sex organ or anus. While acts
that satisfy the contact element of predatory criminal sexual assault of a child also
satisfy the element of sexual conduct, the opposite is not always true.
[SEGMENT 11]
***
Consequently, the two offenses do not contain identical elements. See generally
- 18 - [CITATION] (agreeing with the
appellate court’s decision in the case at bar); [CITATION] (same). The legislature could have reasonably believed that contact
between the sex organ or anus of the defendant and a child victim required a more
severe penalty. Therefore, the more severe sentence provided for the offense of
predatory criminal sexual assault of a child is not constitutionally disproportionate
to the less severe sentence for the offense of aggravated criminal sexual abuse.”
¶ 87 Accordingly, the trial court did not err by imposing Class X sentencing for counts
1 through 3 because “the offense of predatory criminal sexual assault of a child does not contain
identical elements to the offense of aggravated criminal sexual abuse and therefore does not
violate the proportionate penalties clause of the Illinois Constitution.” Id. ¶ 20.
¶ 88 III. CONCLUSION
¶ 89 For the reasons stated, we affirm the trial court’s judgment.
¶ 90 Affirmed.
- 19 -
Digitally signed by
Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Supreme Court Date: 2024.08.06
:57:37 -05'00'
[CITATION]
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KOREM
Court: M. JOHANSON, Appellant.
Docket No.
Filed April 4, 2024
Decision Under Appeal from the Appellate Court for the Second District; heard in that
Review court on appeal from the Circuit Court of McHenry County, the Hon.
Michael E. Coppedge, Judge, presiding.
Judgment Judgments affirmed.
Counsel on James E. Chadd, State Appellate Defender, Thomas A. Lilien, Deputy
Appeal Defender, and Anthony J. Santella, Assistant Appellate Defender, of
the Office of the State Appellate Defender, of Elgin, for appellant.
Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz,
Solicitor General, and Katherine M. Doersch and Garson S. Fischer,
Assistant Attorneys General, of Chicago, of counsel), for the People.
Justices JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Cunningham, and
Rochford concurred in the judgment and opinion.
Justice Holder White took no part in the decision. ```plaintext
OPINION
¶1 Following a bench trial, the circuit court of McHenry County found defendant, Korem M.
Johanson, guilty of Class X felony predatory criminal sexual assault of a child (720 ILCS 5/11-
1.40(a)(1) (West 2018)). Prior to sentencing, defendant moved to be sentenced for the less severe Class
2 felony offense of aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i)). 1 He argued that the
greater penalty for predatory criminal sexual assault of a child violated the proportionate penalties
clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because the two offenses contained
identical elements but disparate sentences. The circuit court denied the motion and sentenced defendant
to 16 years’ imprisonment. Defendant raised the same argument on appeal, and the appellate court
affirmed defendant’s conviction and sentence. [CITATION]. We affirm.
¶2 BACKGROUND
¶3 The State charged defendant with six offenses. He pled guilty to one count prior to trial, which is
not relevant to this appeal. Following the bench trial on the remaining five counts, the circuit court
found him guilty of only one count of predatory criminal sexual assault of a child. That count alleged:
“[D]efendant committed the offense of predatory criminal sexual assault, in that the said
defendant, who was seventeen years of age or older, knowingly committed an act of contact
with [the victim] who was under thirteen years of age when the act was committed, in that said
defendant caused [his] sex organ (penis) to make contact with the hand of [the victim] for the
purpose of the defendant’s sexual gratification or arousal.”
¶4 Prior to sentencing, defendant filed a motion to be sentenced for the Class 2 felony of aggravated
criminal sexual abuse. He claimed that predatory criminal sexual assault of a child contained identical
elements to the less severe offense of aggravated criminal sexual abuse, which he argued violated the
proportionate penalties clause of the Illinois Constitution. The circuit court denied the motion, finding
that the two offenses did not contain identical elements, given that the offense of predatory criminal
sexual assault of a child required “contact” between the sex organ or anus of the defendant or victim,
while aggravated criminal sexual abuse broadly required an act of “sexual conduct” that did not
necessarily involve contact with a sex organ or anus.
¶5 On appeal, defendant again argued that the penalty for predatory criminal sexual assault of a child
violated the proportionate penalties clause of the Illinois Constitution under the identical elements test.
[CITATION]. The appellate court interpreted the definition of the element “sexual conduct” for the offense of
aggravated criminal sexual abuse. [CITATION] (citing 720 ILCS 5/11-0.1 (West 2018)). It concluded that
sexual conduct can occur in three ways, when
“for the purpose of sexual gratification or arousal of the defendant or the victim, there is
(1) knowing touching or fondling of the victim’s or the defendant’s sex organs, anus, or breast,
or (2) knowing touching or fondling of any part of the body of a child under age 13, or (3) any
transfer or transmission of semen by the accused upon any part of the clothed or unclothed
body of the victim.” (Emphases in original and internal quotation marks omitted.) [CITATION].
¶6 By contrast, the court noted that predatory criminal sexual assault of a child “concerns ‘contact,
however slight, between the sex organ or anus of one person and the part of the body of another,’ where
the victim is under 13 years of age.” [CITATION] (quoting 720 ILCS 5/11-1.40(a)(1) (West 2018)). The
The appellate court observed that defendant cited a different form of aggravated criminal sexual
abuse in the trial court (720 ILCS 5/11-1.60(b) (West 2018)), but in the appellate court and this court,
defendant relied on section 11-1.60(c)(1)(i). See [CITATION], ¶ 4 n.1. The State took no
issue with this discrepancy in either the appellate court or this court.
``` court found that, although both offenses required the victim to be under the age of 13, the broad
definition of sexual conduct could be satisfied without contact involving the sex organ or anus. [CITATION]
Therefore, a person could commit the offense of aggravated criminal sexual abuse without also
committing the offense of predatory criminal sexual assault of a child. [CITATION] Consequently, the court
concluded that the two offenses did not contain identical elements in violation of the proportionate
penalties clause. [CITATION] ¶ 27.
¶7 Defendant appeals.
¶8 ANALYSIS
¶9 In this court, defendant contends that the courts below erred in rejecting his argument that the
penalty for the offense of predatory criminal sexual assault of a child violates the proportionate
penalties clause of our state constitution. The constitutionality of a statute is a question of law, which
we review de novo. [CITATION]
¶ 10 The proportionate penalties clause of the Illinois Constitution provides that “[a]ll penalties shall be
determined both according to the seriousness of the offense and with the objective of restoring the
offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. When reviewing a proportionate penalties
claim, “our ultimate inquiry is whether the legislature has set the sentence in accord with the seriousness
of the offense.” [CITATION] One way a penalty can violate the
proportionate penalties clause, which is at issue here, is if that penalty “is greater than the sentence for
an offense with identical elements.” [CITATION] This is known as the
identical elements test.
¶ 11 Under the identical elements test, where different offenses contain identical elements, “common
sense and sound logic would seemingly dictate that their penalties be identical.” [CITATION] When two different offenses contain identical elements but different penalties,
“the penalties [are] unconstitutionally disproportionate and the offense with the greater penalty [cannot]
stand.” [CITATION] (citing [CITATION]) This objective test
compares the elements of the two offenses to determine if the offenses are the same. [CITATION] Given
that the test is objective, it does not consider the offenses as applied to an individual defendant. [CITATION]
Here, we compare section 11-1.40(a)(1) of the Criminal Code of 2012 (Code) (720 ILCS 5/11-
1.40(a)(1) (West 2018)) (predatory criminal sexual assault of a child) with section 11-1.60(c)(1)(i) of
the Code (id. § 11-1.60(c)(1)(i)) (aggravated criminal sexual abuse).
¶ 12 Section 11-1.40(a)(1) provides that
“[a] person commits predatory criminal sexual assault of a child if that person is 17 years of
age or older, and commits an act of contact, however slight, between the sex organ or anus of
one person and the part of the body of another for the purpose of sexual gratification or arousal
of the victim or the accused *** and:
(1) the victim is under 13 years of age[.]” Id. § 11-1.40(a)(1).
Contact has been interpreted to mean any touching. [CITATION]
Contact in the context of this statute requires direct contact between the sex organ or anus of one person
and any part of the body of another.
¶ 13 By comparison, section 11-1.60(c)(1)(i) provides that “[a] person commits aggravated criminal
sexual abuse if: (1) that person is 17 years of age or over and: (i) commits an act of sexual conduct with
a victim who is under 13 years of age.” 720 ILCS 5/11-1.60(c)(1)(i) (West 2018). “Sexual conduct” is
defined as
“any knowing touching or fondling by the victim or the accused, either directly or through
clothing, of the sex organs, anus, or breast of the victim or the accused, or any part of the body
of a child under 13 years of age, or any transfer or transmission of semen by the accused upon
[SEGMENT 12]
any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification
or arousal of the victim or the accused.” Id. § 11-0.1.
The first two definitions involve the knowing touching or fondling based on the age of the victim.
Depending on the victim’s age,
“ ‘sexual conduct’ involving a victim of the age of 13 and over requires intentional touching or
fondling of certain parts of the body, namely, the sex organs, the anus, or the breast, whereas
‘sexual conduct’ involving a victim under the age of 13 years includes the touching or fondling
of ‘any part of the body,’ in all cases for the purpose of sexual gratification or arousal of the
victim or the accused.” [CITATION]
The third definition involves the transfer of semen regardless of the victim’s age. Therefore, where the
conduct in question does not involve the transfer of semen, the element of sexual conduct under section
11-1.60(c)(1)(i)—which requires the victim to be under the age of 13—is defined as any “knowing
touching or fondling by the victim or the accused, either directly or through clothing, of *** any part
of the body of a child under 13 years of age.” 720 ILCS 5/11-0.1 (West 2018); see [CITATION]
¶ 14 The plain language of these statutes demonstrates a clear difference between the two offenses.
Although both require the victim to be under the age of 13, aggravated criminal sexual abuse concerns
any touching or fondling for purposes of sexual gratification or arousal, whereas predatory criminal
sexual assault of a child requires direct contact with the sex organ or anus. While acts that satisfy the
contact element of predatory criminal sexual assault of a child also satisfy the element of sexual
conduct, the opposite is not always true.
“For example, a defendant who massages the back of a naked six-year-old for purposes of
sexual gratification can be convicted of aggravated criminal sexual abuse, but without an
allegation that the touching concerned a sex organ or anus, the defendant cannot also be
convicted of predatory criminal sexual assault of a child.” [CITATION]
Consequently, the two offenses do not contain identical elements. See generally [CITATION] (agreeing with the appellate court’s decision in the case at bar);
[CITATION] (same). The legislature could have reasonably believed
that contact between the sex organ or anus of the defendant and a child victim required a more severe
penalty. Therefore, the more severe sentence provided for the offense of predatory criminal sexual
assault of a child is not constitutionally disproportionate to the less severe sentence for the offense of
aggravated criminal sexual abuse.
¶ 15 Nevertheless, defendant asks this court to consider the elements of the offense as alleged in this
case and find that both offenses contain identical elements. He notes that he was convicted of predatory
criminal sexual assault of a child based on one theory of guilt—that he caused his penis to make contact
with the hand of the victim for the purpose of sexual gratification or arousal. Had defendant been
charged with aggravated criminal sexual abuse, defendant claims the State would be required to prove
contact between defendant’s penis and the victim’s hand to satisfy the element of sexual conduct. Since
his acts satisfied the elements of both offenses, he contends the elements must be identical.
¶ 16 We reject defendant’s argument for two reasons. First, despite defendant’s insistence to the
contrary, his argument is an as-applied challenge, which is not appropriate under the identical elements
test. [CITATION] The identical elements test compares the elements of two offenses
to determine if the offenses are the same. Id. This objective test does not consider the offenses as applied
to an individual defendant. Id. Rather, the question of whether the elements of one offense are the same
as those of another offense turns on that statutory language, not the facts alleged in a particular case.
Here, the analysis is whether “sexual conduct” means the same thing as “contact” based on the statutory
language. That defendant’s acts in this case constituted both offenses shows only that aggravated
criminal sexual abuse may be a lesser included offense of predatory criminal sexual assault of a child
in some cases, but that does not make the elements identical. For the same reason, we find defendant’s
reliance on [CITATION], and [CITATION], misplaced. Those decisions compared a felony offense to the
offense of armed violence and did not involve the offenses in question here. Further, the statutes in
question involved the use of different words that meant the same thing. Here, the elements of contact
and sexual conduct do not mean the same thing.
¶ 17 Defendant’s argument has a second flaw in that it incorrectly defines the element of sexual conduct
for the offense of aggravated criminal sexual abuse when the victim is under the age of 13. Defendant
claims this court should rely on the first clause and define this element as “any knowing touching or
fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus, or
breast of the victim or the accused.” 720 ILCS 5/11-0.1 (West 2018). However, this definition has no
application to section 11-1.60(c)(1)(i), which requires the victim to be under the age of 13. As noted
above, when the victim is under the age of 13 and the conduct involves touching and fondling, sexual
conduct is defined as “any knowing touching or fondling by the victim or the accused, either directly
or through clothing, of *** any part of the body of a child under 13.” Id. This does not require contact
between the sex organ or anus of the victim or the accused, although proof of those facts would satisfy
this definition.
¶ 18 Finally, we reject defendant’s reliance on [CITATION], which
also compared predatory criminal sexual assault of a child and aggravated criminal sexual abuse but
reached the opposite conclusion. 2 Relying on the fact that defendant’s conduct in [CITATION] constituted
both offenses, the court held that the offenses shared identical elements. Id. ¶ 75. The flaw in [CITATION]
is it relied on the fact that the charging instrument alleged facts that could establish both offenses to
find the elements are identical. As discussed above (supra ¶¶ 15-16), that is not the appropriate test.
We therefore overrule [CITATION]. 3
¶ 19 CONCLUSION
¶ 20 For the above reasons, we affirm the judgment of the appellate court, which affirmed the circuit
court’s judgment that the offense of predatory criminal sexual assault of a child does not contain
identical elements to the offense of aggravated criminal sexual abuse and therefore does not violate the
proportionate penalties clause of the Illinois Constitution.
¶ 21 Judgments affirmed.
¶ 22 JUSTICE HOLDER WHITE took no part in the consideration or decision of this case.
The Fourth District has since held that “[t]o the extent the [CITATION] decision’s mere existence
suggests a defendant can raise an as-applied proportionate penalties challenge under the identical
elements test, we emphasize the supreme court’s decision in [CITATION] does not allow such a challenge.”
[CITATION], ¶ 30.
In coming to this conclusion, we also note that [CITATION] is an unpublished appellate court decision
from before 2021, which Rule 23 does not permit a litigant to cite for persuasive purposes. See Ill. S.
Ct. R. 23(e) (eff. Feb. 1, 2023).
Now, respond to the instruction.
### Instruction:
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### Target Case:
2024 IL 129425
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 129425)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
KOREM M. JOHANSON, Appellant.
Opinion filed April 4, 2024.
JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Cunningham, and
Rochford concurred in the judgment and opinion.
Justice Holder White took no part in the decision.
OPINION
¶1 Following a bench trial, the circuit court of McHenry County found defendant,
Korem M. Johanson, guilty of Class X felony predatory criminal sexual assault of
a child (720 ILCS 5/11-1.40(a)(1) (West 2018)). Prior to sentencing, defendant
moved to be sentenced for the less severe Class 2 felony offense of aggravated
criminal sexual abuse (id. § 11-1.60(c)(1)(i)). 1 He argued that the greater penalty
for predatory criminal sexual assault of a child violated the proportionate penalties
clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because the two
offenses contained identical elements but disparate sentences. The circuit court
denied the motion and sentenced defendant to 16 years’ imprisonment. Defendant
raised the same argument on appeal, and the appellate court affirmed defendant’s
conviction and sentence. 2023 IL App (2d) 210690. We affirm.
¶2 BACKGROUND
¶3 The State charged defendant with six offenses. He pled guilty to one count prior
to trial, which is not relevant to this appeal. Following the bench trial on the
remaining five counts, the circuit court found him guilty of only one count of
predatory criminal sexual assault of a child. That count alleged:
“[D]efendant committed the offense of predatory criminal sexual assault, in that
the said defendant, who was seventeen years of age or older, knowingly
committed an act of contact with [the victim] who was under thirteen years of
age when the act was committed, in that said defendant caused [his] sex organ
(penis) to make contact with the hand of [the victim] for the purpose of the
defendant’s sexual gratification or arousal.”
¶4 Prior to sentencing, defendant filed a motion to be sentenced for the Class 2
felony of aggravated criminal sexual abuse. He claimed that predatory criminal
sexual assault of a child contained identical elements to the less severe offense of
aggravated criminal sexual abuse, which he argued violated the proportionate
penalties clause of the Illinois Constitution. The circuit court denied the motion,
finding that the two offenses did not contain identical elements, given that the
offense of predatory criminal sexual assault of a child required “contact” between
the sex organ or anus of the defendant or victim, while aggravated criminal sexual
1
The appellate court observed that defendant cited a different form of aggravated criminal
sexual abuse in the trial court (720 ILCS 5/11-1.60(b) (West 2018)), but in the appellate court and
this court, defendant relied on section 11-1.60(c)(1)(i). See 2023 IL App (2d) 210690, ¶ 4 n.1. The
State took no issue with this discrepancy in either the appellate court or this court.
-2-
abuse broadly required an act of “sexual conduct” that did not necessarily involve
contact with a sex organ or anus.
¶5 On appeal, defendant again argued that the penalty for predatory criminal
sexual assault of a child violated the proportionate penalties clause of the Illinois
Constitution under the identical elements test. Id. The appellate court interpreted
the definition of the element “sexual conduct” for the offense of aggravated
criminal sexual abuse. Id. ¶ 18 (citing 720 ILCS 5/11-0.1 (West 2018)). It
concluded that sexual conduct can occur in three ways, when
“for the purpose of sexual gratification or arousal of the defendant or the victim,
there is (1) knowing touching or fondling of the victim’s or the defendant’s sex
organs, anus, or breast, or (2) knowing touching or fondling of any part of the
body of a child under age 13, or (3) any transfer or transmission of semen by
the accused upon any part of the clothed or unclothed body of the victim.”
(Emphases in original and internal quotation marks omitted.) Id.
¶6 By contrast, the court noted that predatory criminal sexual assault of a child
“concerns ‘contact, however slight, between the sex organ or anus of one person
and the part of the body of another,’ where the victim is under 13 years of age.” Id.
¶ 19 (quoting 720 ILCS 5/11-1.40(a)(1) (West 2018)). The court found that,
although both offenses required the victim to be under the age of 13, the broad
definition of sexual conduct could be satisfied without contact involving the sex
organ or anus. Id. Therefore, a person could commit the offense of aggravated
criminal sexual abuse without also committing the offense of predatory criminal
sexual assault of a child. Id. Consequently, the court concluded that the two
offenses did not contain identical elements in violation of the proportionate
penalties clause. Id. ¶ 27.
¶7 Defendant appeals.
¶8 ANALYSIS
¶9 In this court, defendant contends that the courts below erred in rejecting his
argument that the penalty for the offense of predatory criminal sexual assault of a
child violates the proportionate penalties clause of our state constitution. The
-3-
constitutionality of a statute is a question of law, which we review de novo. People
v. Hauschild, 226 Ill. 2d 63, 83 (2007).
¶ 10 The proportionate penalties clause of the Illinois Constitution provides that
“[a]ll penalties shall be determined both according to the seriousness of the offense
and with the objective of restoring the offender to useful citizenship.” Ill. Const.
1970, art. I, § 11. When reviewing a proportionate penalties claim, “our ultimate
inquiry is whether the legislature has set the sentence in accord with the seriousness
of the offense.” People v. Guevara, 216 Ill. 2d 533, 543 (2005). One way a penalty
can violate the proportionate penalties clause, which is at issue here, is if that
penalty “is greater than the sentence for an offense with identical elements.” People
v. Ligon, 2016 IL 118023, ¶ 10. This is known as the identical elements test.
¶ 11 Under the identical elements test, where different offenses contain identical
elements, “common sense and sound logic would seemingly dictate that their
penalties be identical.” People v. Christy, 139 Ill. 2d 172, 181 (1990). When two
different offenses contain identical elements but different penalties, “the penalties
[are] unconstitutionally disproportionate and the offense with the greater penalty
[cannot] stand.” People v. Williams, 2015 IL 117470, ¶ 10 (citing Christy, 139 Ill.
2d at 181). This objective test compares the elements of the two offenses to
determine if the offenses are the same. Id. ¶ 19. Given that the test is objective, it
does not consider the offenses as applied to an individual defendant. Id. Here, we
compare section 11-1.40(a)(1) of the Criminal Code of 2012 (Code) (720 ILCS
5/11-1.40(a)(1) (West 2018)) (predatory criminal sexual assault of a child) with
section 11-1.60(c)(1)(i) of the Code (id. § 11-1.60(c)(1)(i)) (aggravated criminal
sexual abuse).
¶ 12 Section 11-1.40(a)(1) provides that
“[a] person commits predatory criminal sexual assault of a child if that person
is 17 years of age or older, and commits an act of contact, however slight,
between the sex organ or anus of one person and the part of the body of another
for the purpose of sexual gratification or arousal of the victim or the accused
*** and:
(1) the victim is under 13 years of age[.]” Id. § 11-1.40(a)(1).
-4-
Contact has been interpreted to mean any touching. People v. Kitch, 2019 IL App
(3d) 170522, ¶ 51. Contact in the context of this statute requires direct contact
between the sex organ or anus of one person and any part of the body of another.
¶ 13 By comparison, section 11-1.60(c)(1)(i) provides that “[a] person commits
aggravated criminal sexual abuse if: (1) that person is 17 years of age or over and:
(i) commits an act of sexual conduct with a victim who is under 13 years of age.”
720 ILCS 5/11-1.60(c)(1)(i) (West 2018). “Sexual conduct” is defined as
“any knowing touching or fondling by the victim or the accused, either directly
or through clothing, of the sex organs, anus, or breast of the victim or the
accused, or any part of the body of a child under 13 years of age, or any transfer
or transmission of semen by the accused upon any part of the clothed or
unclothed body of the victim, for the purpose of sexual gratification or arousal
of the victim or the accused.” Id. § 11-0.1.
The first two definitions involve the knowing touching or fondling based on the age
of the victim. Depending on the victim’s age,
“ ‘sexual conduct’ involving a victim of the age of 13 and over requires
intentional touching or fondling of certain parts of the body, namely, the sex
organs, the anus, or the breast, whereas ‘sexual conduct’ involving a victim
under the age of 13 years includes the touching or fondling of ‘any part of the
body,’ in all cases for the purpose of sexual gratification or arousal of the victim
or the accused.” People v. Nibbio, 180 Ill. App. 3d 513, 517 (1989) (interpreting
the former version of the statute, which mirrored the relevant language of the
current version of the definition of sexual conduct).
The third definition involves the transfer of semen regardless of the victim’s age.
Therefore, where the conduct in question does not involve the transfer of semen,
the element of sexual conduct under section 11-1.60(c)(1)(i)—which requires the
victim to be under the age of 13—is defined as any “knowing touching or fondling
by the victim or the accused, either directly or through clothing, of *** any part of
the body of a child under 13 years of age.” 720 ILCS 5/11-0.1 (West 2018); see
Nibbio, 180 Ill. App. 3d at 517.
-5-
¶ 14 The plain language of these statutes demonstrates a clear difference between
the two offenses. Although both require the victim to be under the age of 13,
aggravated criminal sexual abuse concerns any touching or fondling for purposes
of sexual gratification or arousal, whereas predatory criminal sexual assault of a
child requires direct contact with the sex organ or anus. While acts that satisfy the
contact element of predatory criminal sexual assault of a child also satisfy the
element of sexual conduct, the opposite is not always true.
“For example, a defendant who massages the back of a naked six-year-old for
purposes of sexual gratification can be convicted of aggravated criminal sexual
abuse, but without an allegation that the touching concerned a sex organ or anus,
the defendant cannot also be convicted of predatory criminal sexual assault of
a child.” 2023 IL App (2d) 210690, ¶ 20.
Consequently, the two offenses do not contain identical elements. See generally
People v. Gallegos-Moreno, 2023 IL App (1st) 220958-U (agreeing with the
appellate court’s decision in the case at bar); People v. D.K., 2023 IL App (2d)
220267-U (same). The legislature could have reasonably believed that contact
between the sex organ or anus of the defendant and a child victim required a more
severe penalty. Therefore, the more severe sentence provided for the offense of
predatory criminal sexual assault of a child is not constitutionally disproportionate
to the less severe sentence for the offense of aggravated criminal sexual abuse.
¶ 15 Nevertheless, defendant asks this court to consider the elements of the offense
as alleged in this case and find that both offenses contain identical elements. He
notes that he was convicted of predatory criminal sexual assault of a child based on
one theory of guilt—that he caused his penis to make contact with the hand of the
victim for the purpose of sexual gratification or arousal. Had defendant been
charged with aggravated criminal sexual abuse, defendant claims the State would
be required to prove contact between defendant’s penis and the victim’s hand to
satisfy the element of sexual conduct. Since his acts satisfied the elements of both
offenses, he contends the elements must be identical.
¶ 16 We reject defendant’s argument for two reasons. First, despite defendant’s
insistence to the contrary, his argument is an as-applied challenge, which is not
appropriate under the identical elements test. Williams, 2015 IL 117470, ¶ 19. The
identical elements test compares the elements of two offenses to determine if the
-6-
offenses are the same. Id. This objective test does not consider the offenses as
applied to an individual defendant. Id. Rather, the question of whether the elements
of one offense are the same as those of another offense turns on that statutory
language, not the facts alleged in a particular case. Here, the analysis is whether
“sexual conduct” means the same thing as “contact” based on the statutory
language. That defendant’s acts in this case constituted both offenses shows only
that aggravated criminal sexual abuse may be a lesser included offense of predatory
criminal sexual assault of a child in some cases, but that does not make the elements
identical. For the same reason, we find defendant’s reliance on Christy, 139 Ill. 2d
172, People v. Lewis, 175 Ill. 2d 412 (1996), Hauschild, 226 Ill. 2d 63, and People
v. Clemons, 2012 IL 107821, misplaced. Those decisions compared a felony
offense to the offense of armed violence and did not involve the offenses in question
here. Further, the statutes in question involved the use of different words that meant
the same thing. Here, the elements of contact and sexual conduct do not mean the
same thing.
¶ 17 Defendant’s argument has a second flaw in that it incorrectly defines the
element of sexual conduct for the offense of aggravated criminal sexual abuse when
the victim is under the age of 13. Defendant claims this court should rely on the
first clause and define this element as “any knowing touching or fondling by the
victim or the accused, either directly or through clothing, of the sex organs, anus,
or breast of the victim or the accused.” 720 ILCS 5/11-0.1 (West 2018). However,
this definition has no application to section 11-1.60(c)(1)(i), which requires the
victim to be under the age of 13. As noted above, when the victim is under the age
of 13 and the conduct involves touching and fondling, sexual conduct is defined as
“any knowing touching or fondling by the victim or the accused, either directly or
through clothing, of *** any part of the body of a child under 13.” Id. This does not
require contact between the sex organ or anus of the victim or the accused, although
proof of those facts would satisfy this definition.
¶ 18 Finally, we reject defendant’s reliance on People v. Deckard, 2020 IL App (4th)
170781-U, which also compared predatory criminal sexual assault of a child and
aggravated criminal sexual abuse but reached the opposite conclusion. 2 Relying on
2
The Fourth District has since held that “[t]o the extent the Deckard decision’s mere existence
suggests a defendant can raise an as-applied proportionate penalties challenge under the identical
-7-
the fact that defendant’s conduct in Deckard constituted both offenses, the court
held that the offenses shared identical elements. Id. ¶ 75. The flaw in Deckard is it
relied on the fact that the charging instrument alleged facts that could establish both
offenses to find the elements are identical. As discussed above (supra ¶¶ 15-16),
that is not the appropriate test. We therefore overrule Deckard. 3
¶ 19 CONCLUSION
¶ 20 For the above reasons, we affirm the judgment of the appellate court, which
affirmed the circuit court’s judgment that the offense of predatory criminal sexual
assault of a child does not contain identical elements to the offense of aggravated
criminal sexual abuse and therefore does not violate the proportionate penalties
clause of the Illinois Constitution.
¶ 21 Judgments affirmed.
¶ 22 JUSTICE HOLDER WHITE took no part in the consideration or decision of
this case.
elements test, we emphasize the supreme court’s decision in Williams does not allow such a
challenge.” People v. Melvin, 2023 IL App (4th) 220385, ¶ 30.
3
In coming to this conclusion, we also note that Deckard is an unpublished appellate court
decision from before 2021, which Rule 23 does not permit a litigant to cite for persuasive purposes.
See Ill. S. Ct. R. 23(e) (eff. Feb. 1, 2023).
-8-
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"2",
"4",
"5",
"7",
"10",
"11"
]
Law
9957507
[SEGMENT 1]
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 181
Jaime Urrabazo, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240085
Appeal from the District Court of Cass County, East Central Judicial District, the
Honorable Stephannie N. Stiel, Judge.
AFFIRMED.
Per Curiam.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant; on brief.
Derek K. Steiner, Assistant State’s Attorney, Fargo, ND, for respondent and
appellee; on brief. [CITATION]
No. 20240085
Per Curiam.
[¶1] Jaime Urrabazo appeals from an order denying his application for
postconviction relief after pleading guilty to unlawful possession of drug
paraphernalia, second offense. At the evidentiary hearing on his application, he
alleged he was under the influence of drugs when he pled guilty and claims he
did not make a knowing and voluntary waiver of his right to trial. The court
found Urrabazo’s testimony was not credible and he failed to establish
withdrawal of his guilty plea was necessary to correct a manifest injustice.
[¶2] “The [district] court has discretion in finding whether a manifest injustice
necessitating the withdrawal of a guilty plea exists, and we review the court's
decision for abuse of discretion.” [CITATION] (citation omitted). Findings of fact made in a postconviction relief proceeding are
subject to the clearly erroneous standard of review. [CITATION]. After a review of the record, we conclude the district
court’s findings of fact are not clearly erroneous, and the court did not abuse its
discretion by not allowing Urrabazo to withdraw his guilty plea. We summarily
affirm under N.D.R.App.P. 35.1(a)(2) and (4).
[¶3] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 143
Ronald Wayne Wootan, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240025
Appeal from the District Court of Rolette County, Northeast Judicial District,
the Honorable Anthony S. Benson, Judge.
AFFIRMED.
Per Curiam.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Brian D. Grosinger, State’s Attorney, Rolla, ND, for respondent and appellee. Wootan v. State
No. 20240025
Per Curiam.
Ronald Wootan appeals from an order denying his postconviction relief
application entered after the district court held an evidentiary hearing on
remand. See [CITATION] (remanding
because genuine issue of material fact existed on claim asserting trial counsel
provided ineffective assistance by stating sentences would run concurrently).
The court on remand found Wootan’s trial counsel’s representation of him was
reasonable and withdrawal of his guilty plea was not necessary to correct a
manifest injustice. Wootan argues the court erred in denying his application,
claiming he received ineffective assistance of counsel before entering his guilty
plea.
“When a defendant pleads guilty on the advice of counsel, the defendant
may only attack the voluntary and intelligent character of the guilty plea.”
[CITATION] (citation omitted). “The [district]
court has discretion in finding whether a manifest injustice necessitating the
withdrawal of a guilty plea exists, and we review the court’s decision for abuse
of discretion.” [CITATION] (citation
omitted). Findings of fact made in a postconviction relief proceeding are subject
to the clearly erroneous standard of review. [CITATION], ¶ 6, 5 N.W.3d 521. After a review of the record, we conclude the district court’s
findings of facts are not clearly erroneous, the court did not err in determining
Wootan failed to establish ineffective assistance of counsel, and the court did
not abuse its discretion by not allowing him to withdraw his guilty plea. We
summarily affirm under N.D.R.App.P. 35.1(a)(2) and (4).
Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 151
Brandon Jerome Schweitzer, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240045
Appeal from the District Court of Burleigh County, South Central Judicial District, the
Honorable Jackson J. Lofgren, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Dennis H. Ingold, Assistant State’s Attorney, Bismarck, ND, for respondent and appellee. [CITATION]
No. 20240045
Crothers, Justice.
[¶1] Brandon Schweitzer appeals from a district court order denying his petition and
amended petition for postconviction relief. He argues he received ineffective assistance of
counsel when he pleaded guilty to four charges of fleeing a police officer, the underlying
events occurred the same day during four pursuits over a five-hour span. Schweitzer alleges
his attorney failed to advise him of a potential double jeopardy defense, failed to file a
motion to dismiss some of the multiple fleeing charges, and failed to give him appropriate
advice on whether to withdraw his guilty plea. We affirm.
I
[¶2] On August 15, 2022, around 8:37 p.m., Schweitzer was driving a motorcycle
without a license plate in Bismarck, North Dakota. Police tried to stop Schweitzer, but he
rapidly sped away. The police attempted to again stop Schweitzer at 9:39 p.m., 11:14 p.m.,
and 1:20 a.m. During the pursuits, a North Dakota Highway Patrol aircraft and unmarked
police vehicles followed Schweitzer. The aircraft and unmarked police vehicles monitored
Schweitzer, but did not attempt to stop Schweitzer. On August 16, police apprehended
Schweitzer at 1:43 a.m. The State charged Schweitzer with one count of reckless
endangerment, four counts of fleeing a police officer, and one count of driving under
suspension.
[¶3] On August 25, 2022, the district court held a change of plea hearing. The court
reviewed Schweitzer’s charges and specifically noted “[c]ounts 2, 3, 4, and 5—are fleeing
a peace officer at different times during that day.” The court noted two charges occurred
while fleeing on a motorcycle and two charges occurred while fleeing in a motor vehicle.
The court asked Schweitzer if he understood the charges, and he responded he did. After a
discussion about waiving the preliminary hearing, the court asked Schweitzer again if he
understood the charges, reviewed the charges with his attorney, and asked if Schweitzer
understood the potential penalties. Schweitzer responded he did.
[¶4] The district court asked Schweitzer if he “had enough time to discuss this matter”
with his attorney, and Schweitzer responded he did. The court asked if Schweitzer needed
to have a private conversation with his attorney and Schweitzer responded, “I don’t believe
so.” The court asked Schweitzer if he had any questions about any of the information given
to him, and he responded he did not. After this exchange, the court asked Schweitzer for a
third time if he understood each fleeing charge correlated to a specific time he fled from
police, and Schweitzer said he understood. The court continued stating, “[b]ecause they’re
broken up in the affidavit. So I just wanted to make sure you understood why there’s four
charges on the same day but for the same offense. Okay. So you have no questions about
that at all?” Schweitzer responded that he did not have any questions.
[¶5] During Schweitzer’s change of plea hearing, the district court asked: “There’s four
counts of fleeing a police officer, second or subsequent offense, for each of those
individually, do you plead not guilty or guilty?” Schweitzer pleaded guilty. The court asked
if anyone forced or threatened Schweitzer to plead guilty and if his plea was of his “own
free will and choice after discussing it with your attorney?” Schweitzer said he was not
forced or threatened and the plea was made of his own free will. The court found
Schweitzer made his plea voluntarily.
[¶6] The district court asked Schweitzer if he wanted to review the affidavit, and
Schweitzer responded that he already discussed it with his attorney over the phone.
Undeterred, the court went through the affidavit, and Schweitzer confirmed he fled from
police when their lights were on at high speeds on a motorcycle at first and then in a car.
When asked for any further factual basis, the State added:
[SEGMENT 2]
“The first attempted traffic stop was approximately 2037 hours; that was with
the motorcycle. Second stop was—approximately was 2139 on the
motorcycle again. And the third attempted stop was at approximately 2314;
that was near 6020 South 12th Street with Officer Jensen. And the fourth stop
was near 1812 Bell Street. And then that is when the North Dakota Highway
Patrol troopers placed spike strips, and Brandon Schweitzer’s vehicle
eventually came to a stop near 2500 block of East Boulevard Avenue.”
The court found a factual basis for Schweitzer’s six counts and sentenced him.
[¶7] On November 1, 2022, Schweitzer filed a petition for postconviction relief, claiming
his sentence was not authorized by law because he received “successive prosecutions and
punishments for the same offense.” He claimed his sentence violated the double jeopardy
clause of the Fifth Amendment of the United States Constitution. Schweitzer’s
postconviction hearing was scheduled for July 2023.
[¶8] On March 20, 2023, Schweitzer moved for a summary disposition. On May 31,
2023, the district court denied the motion citing [CITATION] and stating, “[a]n
unconditional guilty plea waives all nonjurisdictional [sic] defects alleged to have occurred
prior to the guilty plea, including a double jeopardy claim.” [CITATION]. On August 2, 2023, Schweitzer amended his petition to include a claim of ineffective
assistance of counsel because his attorney offered “no opposition to the charges as filed”
and allowed Schweitzer to plead guilty to the charges, which caused his “Fifth Amendment
double jeopardy rights to be violated.” An evidentiary hearing was held on January 8, 2024.
[¶9] In the order denying the petition and amended petition, the district court found
Schweitzer and his attorney discussed his case before the change of plea hearing and the
attorney recommended “waiting to offer pleas of guilty but Schweitzer wanted to” resolve
the matters. The court also found that the attorney “indicated the information delineated
the charges” because they occurred at different times, separate pursuits, and involved
fleeing on a motorcycle and in a car. The court found Schweitzer “provided little relevant
credible testimony.” The court found Schweitzer failed to cite caselaw establishing
“multiple counts of Fleeing a Peace Officer” were not appropriate because the charges
“involved the same suspect in the same jurisdiction on the same day” and “were separated
by the method of transportation, time, and location.” The court also found Schweitzer failed
to show his attorney was ineffective “for failing to raise a legal argument no authority
supports.”
[¶10] The district court found Schweitzer did not meet the first prong of the Strickland
test because he failed to show his attorney’s “performance fell below an objective standard
of reasonableness.” The court denied Schweitzer’s petition and amended petition.
Schweitzer timely appealed.
II
[¶11] “Postconviction relief proceedings are civil in nature and governed by the North
Dakota Rules of Civil Procedure.” [CITATION]. “Questions of law are fully reviewable on appeal of a post-conviction proceeding.”
[CITATION] (quoting [CITATION]). “A trial court’s findings of fact in a post-conviction proceeding
will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a).” [CITATION] (quoting [CITATION]). A clearly erroneous finding exists if “it is induced by an erroneous
view of the law, if it is not supported by any evidence, or if, although there is some evidence
to support it, a reviewing court is left with a definite and firm conviction a mistake has
been made.” [CITATION].
[¶12] Schweitzer argues he received ineffective assistance of counsel when he pleaded
guilty to four charges of fleeing police. He alleges the four charges occurred during the
same event and day, which he contends runs afoul of double jeopardy. He also alleges his
attorney should have given him notice of a potential double jeopardy defense.
[¶13] For a defendant to prevail on a claim for ineffective assistance of counsel, a party
applying the Strickland test must show:
“(1) counsel’s representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. The question of ineffective assistance of counsel is a mixed
question of law and fact and is fully reviewable on appeal.”
[CITATION]. “Courts need not address both prongs of the Strickland test, and if a
court can resolve the case by addressing only one prong it is encouraged to do so.”
[CITATION]. “The Strickland test is a high bar and must be applied with
scrupulous care.” [CITATION].
[¶14] The defendant must “overcome the ‘strong presumption’ that trial counsel’s
representation fell within the wide range of reasonable professional assistance, and courts
must consciously attempt to limit the distorting effect of hindsight” when establishing the
first Strickland prong. [CITATION]. The court must find whether “the identified acts or omissions were outside the wide range
of professionally competent assistance,” which must be weighed “in light of all the
circumstances.” Strickland v. Washington, 466 U.S. 668, 690 (1984). The attorney’s
misconduct must have prejudiced the defendant. [CITATION].
[¶15] When a “defendant pleads guilty on the advice of counsel, the defendant may only
attack the voluntary and intelligent character of the guilty plea.” [CITATION]. “The voluntariness of
such a guilty plea turns on ‘whether that advice was within the range of competence
demanded of attorneys in criminal cases.’” [CITATION]
[¶16] The district court found Schweitzer failed to show his attorney’s advice fell below the objective standard of reasonableness. Fleeing a police officer occurs when a driver of a motor vehicle “willfully fails or refuses to bring the vehicle to a stop, or who otherwise flees or attempts to elude, in any manner, a pursuing police vehicle or peace officer, when given a visual or audible signal to bring the vehicle to a stop.” N.D.C.C. § 39-10-71(1). The court found Schweitzer failed to provide substantive law supporting his claim that four counts of fleeing police during four pursuits on the same day violated the double jeopardy clause. Therefore, the court did not err when it found Schweitzer failed to meet his high burden of proving ineffective assistance of counsel. Moreover, the court’s findings that Schweitzer failed to provide any law, rule, or evidence supporting his unfounded, conclusory statements that he received ineffective assistance of counsel during his change of plea hearing were not clearly erroneous. The court’s findings were not induced by an erroneous view of the law, evidence exists to support the findings, and on the entire record, this Court is not left with a definite and firm conviction a mistake was made.
III
[¶17] The district court did not err in denying Schweitzer’s petition and amended petition for postconviction relief. We affirm.
[¶18] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Michael P. Hurly, D.J.
[¶19] The Honorable Michael P. Hurly, D.J., sitting in place of Bahr, J., disqualified.
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 143
Ronald Wayne Wootan, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240025
Appeal from the District Court of Rolette County, Northeast Judicial District,
the Honorable Anthony S. Benson, Judge.
AFFIRMED.
Per Curiam.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Brian D. Grosinger, State’s Attorney, Rolla, ND, for respondent and appellee. [CITATION]
No. 20240025
Per Curiam.
Ronald Wootan appeals from an order denying his postconviction relief
application entered after the district court held an evidentiary hearing on
remand. See [CITATION]. The court on remand found Wootan’s trial counsel’s representation of him was
reasonable and withdrawal of his guilty plea was not necessary to correct a
manifest injustice. Wootan argues the court erred in denying his application,
claiming he received ineffective assistance of counsel before entering his guilty
plea.
“When a defendant pleads guilty on the advice of counsel, the defendant
may only attack the voluntary and intelligent character of the guilty plea.”
[CITATION] (citation omitted). “The [district]
court has discretion in finding whether a manifest injustice necessitating the
withdrawal of a guilty plea exists, and we review the court’s decision for abuse
of discretion.” [CITATION] (citation
omitted). Findings of fact made in a postconviction relief proceeding are subject
to the clearly erroneous standard of review. [CITATION]. After a review of the record, we conclude the district court’s
findings of facts are not clearly erroneous, the court did not err in determining
Wootan failed to establish ineffective assistance of counsel, and the court did
not abuse its discretion by not allowing him to withdraw his guilty plea. We
summarily affirm under N.D.R.App.P. 35.1(a)(2) and (4).
[SEGMENT 3]
Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 136
Dondarro Jimmell Watts, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240011
Appeal from the District Court of Burleigh County, South Central Judicial District, the
Honorable Bonnie L. Storbakken, Judge.
AFFIRMED.
Per Curiam.
Rina Morales-Holmes, Minot, ND, for petitioner and appellant; submitted on brief.
Dennis H. Ingold, Bismarck, ND, for respondent and appellee; submitted on brief. Watts v. State
No. 20240011
Per Curiam.
[¶ 1] Dondarro Watts appeals from a district court order denying his application for
postconviction relief. A jury convicted Watts of indecent exposure. Watts appealed his
conviction, and this Court affirmed. [CITATION] Watts filed an application for postconviction relief, asserting he received ineffective assistance of
trial counsel. After a hearing, the court held Watts did not demonstrate his trial counsel’s
representation fell below an objective standard of reasonableness. The court further held
Watts did not demonstrate his trial counsel’s representation prejudiced him in any way.
[¶ 2] Findings of fact made in a postconviction relief proceeding are subject to the clearly
erroneous standard of review. [CITATION] After a
full review of the record, we conclude the district court’s findings of facts are not clearly
erroneous and the court did not err in determining Watts failed to establish ineffective
assistance of counsel. We summarily affirm under N.D.R.App.P. 35.1(a)(2).
[¶ 3] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 181
Jaime Urrabazo, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240085
Appeal from the District Court of Cass County, East Central Judicial District, the
Honorable Stephannie N. Stiel, Judge.
AFFIRMED.
Per Curiam.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant; on brief.
Derek K. Steiner, Assistant State’s Attorney, Fargo, ND, for respondent and
appellee; on brief. [CITATION]
No. 20240085
Per Curiam.
[¶1] Jaime Urrabazo appeals from an order denying his application for
postconviction relief after pleading guilty to unlawful possession of drug
paraphernalia, second offense. At the evidentiary hearing on his application, he
alleged he was under the influence of drugs when he pled guilty and claims he
did not make a knowing and voluntary waiver of his right to trial. The court
found Urrabazo’s testimony was not credible and he failed to establish
withdrawal of his guilty plea was necessary to correct a manifest injustice.
[¶2] “The [district] court has discretion in finding whether a manifest injustice
necessitating the withdrawal of a guilty plea exists, and we review the court's
decision for abuse of discretion.” [CITATION] (citation omitted). Findings of fact made in a postconviction relief proceeding are
subject to the clearly erroneous standard of review. [CITATION]. After a review of the record, we conclude the district
court’s findings of fact are not clearly erroneous, and the court did not abuse its
discretion by not allowing Urrabazo to withdraw his guilty plea. We summarily
affirm under N.D.R.App.P. 35.1(a)(2) and (4).
[¶3] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 143
Ronald Wayne Wootan, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240025
Appeal from the District Court of Rolette County, Northeast Judicial District,
the Honorable Anthony S. Benson, Judge.
AFFIRMED.
Per Curiam.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Brian D. Grosinger, State’s Attorney, Rolla, ND, for respondent and appellee. Wootan v. State
No. 20240025
Per Curiam.
Ronald Wootan appeals from an order denying his postconviction relief
application entered after the district court held an evidentiary hearing on
remand. See [CITATION] (remanding
because genuine issue of material fact existed on claim asserting trial counsel
provided ineffective assistance by stating sentences would run concurrently).
The court on remand found Wootan’s trial counsel’s representation of him was
reasonable and withdrawal of his guilty plea was not necessary to correct a
manifest injustice. Wootan argues the court erred in denying his application,
claiming he received ineffective assistance of counsel before entering his guilty
plea.
“When a defendant pleads guilty on the advice of counsel, the defendant
may only attack the voluntary and intelligent character of the guilty plea.”
[CITATION] (citation omitted). “The [district]
court has discretion in finding whether a manifest injustice necessitating the
withdrawal of a guilty plea exists, and we review the court’s decision for abuse
of discretion.” [CITATION] (citation
omitted). Findings of fact made in a postconviction relief proceeding are subject
to the clearly erroneous standard of review. [CITATION], ¶ 6, 5 N.W.3d 521. After a review of the record, we conclude the district court’s
findings of facts are not clearly erroneous, the court did not err in determining
Wootan failed to establish ineffective assistance of counsel, and the court did
not abuse its discretion by not allowing him to withdraw his guilty plea. We
summarily affirm under N.D.R.App.P. 35.1(a)(2) and (4).
Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 151
Brandon Jerome Schweitzer, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240045
Appeal from the District Court of Burleigh County, South Central Judicial District, the
Honorable Jackson J. Lofgren, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Dennis H. Ingold, Assistant State’s Attorney, Bismarck, ND, for respondent and appellee. [CITATION]
No. 20240045
Crothers, Justice.
[¶1] Brandon Schweitzer appeals from a district court order denying his petition and
amended petition for postconviction relief. He argues he received ineffective assistance of
counsel when he pleaded guilty to four charges of fleeing a police officer, the underlying
events occurred the same day during four pursuits over a five-hour span. Schweitzer alleges
his attorney failed to advise him of a potential double jeopardy defense, failed to file a
motion to dismiss some of the multiple fleeing charges, and failed to give him appropriate
advice on whether to withdraw his guilty plea. We affirm.
I
[¶2] On August 15, 2022, around 8:37 p.m., Schweitzer was driving a motorcycle
without a license plate in Bismarck, North Dakota. Police tried to stop Schweitzer, but he
rapidly sped away. The police attempted to again stop Schweitzer at 9:39 p.m., 11:14 p.m.,
and 1:20 a.m. During the pursuits, a North Dakota Highway Patrol aircraft and unmarked
police vehicles followed Schweitzer. The aircraft and unmarked police vehicles monitored
Schweitzer, but did not attempt to stop Schweitzer. On August 16, police apprehended
Schweitzer at 1:43 a.m. The State charged Schweitzer with one count of reckless
endangerment, four counts of fleeing a police officer, and one count of driving under
suspension.
[¶3] On August 25, 2022, the district court held a change of plea hearing. The court
reviewed Schweitzer’s charges and specifically noted “[c]ounts 2, 3, 4, and 5—are fleeing
a peace officer at different times during that day.” The court noted two charges occurred
while fleeing on a motorcycle and two charges occurred while fleeing in a motor vehicle.
The court asked Schweitzer if he understood the charges, and he responded he did. After a
discussion about waiving the preliminary hearing, the court asked Schweitzer again if he
understood the charges, reviewed the charges with his attorney, and asked if Schweitzer
understood the potential penalties. Schweitzer responded he did.
[¶4] The district court asked Schweitzer if he “had enough time to discuss this matter”
with his attorney, and Schweitzer responded he did. The court asked if Schweitzer needed
to have a private conversation with his attorney and Schweitzer responded, “I don’t believe
so.” The court asked Schweitzer if he had any questions about any of the information given
to him, and he responded he did not. After this exchange, the court asked Schweitzer for a
third time if he understood each fleeing charge correlated to a specific time he fled from
police, and Schweitzer said he understood. The court continued stating, “[b]ecause they’re
broken up in the affidavit. So I just wanted to make sure you understood why there’s four
charges on the same day but for the same offense. Okay. So you have no questions about
that at all?” Schweitzer responded that he did not have any questions.
[¶5] During Schweitzer’s change of plea hearing, the district court asked: “There’s four
counts of fleeing a police officer, second or subsequent offense, for each of those
individually, do you plead not guilty or guilty?” Schweitzer pleaded guilty. The court asked
if anyone forced or threatened Schweitzer to plead guilty and if his plea was of his “own
free will and choice after discussing it with your attorney?” Schweitzer said he was not
forced or threatened and the plea was made of his own free will. The court found
Schweitzer made his plea voluntarily.
[¶6] The district court asked Schweitzer if he wanted to review the affidavit, and
Schweitzer responded that he already discussed it with his attorney over the phone.
Undeterred, the court went through the affidavit, and Schweitzer confirmed he fled from
police when their lights were on at high speeds on a motorcycle at first and then in a car.
When asked for any further factual basis, the State added:
[SEGMENT 2]
“The first attempted traffic stop was approximately 2037 hours; that was with
the motorcycle. Second stop was—approximately was 2139 on the
motorcycle again. And the third attempted stop was at approximately 2314;
that was near 6020 South 12th Street with Officer Jensen. And the fourth stop
was near 1812 Bell Street. And then that is when the North Dakota Highway
Patrol troopers placed spike strips, and Brandon Schweitzer’s vehicle
eventually came to a stop near 2500 block of East Boulevard Avenue.”
The court found a factual basis for Schweitzer’s six counts and sentenced him.
[¶7] On November 1, 2022, Schweitzer filed a petition for postconviction relief, claiming
his sentence was not authorized by law because he received “successive prosecutions and
punishments for the same offense.” He claimed his sentence violated the double jeopardy
clause of the Fifth Amendment of the United States Constitution. Schweitzer’s
postconviction hearing was scheduled for July 2023.
[¶8] On March 20, 2023, Schweitzer moved for a summary disposition. On May 31,
2023, the district court denied the motion citing [CITATION] and stating, “[a]n
unconditional guilty plea waives all nonjurisdictional [sic] defects alleged to have occurred
prior to the guilty plea, including a double jeopardy claim.” [CITATION]. On August 2, 2023, Schweitzer amended his petition to include a claim of ineffective
assistance of counsel because his attorney offered “no opposition to the charges as filed”
and allowed Schweitzer to plead guilty to the charges, which caused his “Fifth Amendment
double jeopardy rights to be violated.” An evidentiary hearing was held on January 8, 2024.
[¶9] In the order denying the petition and amended petition, the district court found
Schweitzer and his attorney discussed his case before the change of plea hearing and the
attorney recommended “waiting to offer pleas of guilty but Schweitzer wanted to” resolve
the matters. The court also found that the attorney “indicated the information delineated
the charges” because they occurred at different times, separate pursuits, and involved
fleeing on a motorcycle and in a car. The court found Schweitzer “provided little relevant
credible testimony.” The court found Schweitzer failed to cite caselaw establishing
“multiple counts of Fleeing a Peace Officer” were not appropriate because the charges
“involved the same suspect in the same jurisdiction on the same day” and “were separated
by the method of transportation, time, and location.” The court also found Schweitzer failed
to show his attorney was ineffective “for failing to raise a legal argument no authority
supports.”
[¶10] The district court found Schweitzer did not meet the first prong of the Strickland
test because he failed to show his attorney’s “performance fell below an objective standard
of reasonableness.” The court denied Schweitzer’s petition and amended petition.
Schweitzer timely appealed.
II
[¶11] “Postconviction relief proceedings are civil in nature and governed by the North
Dakota Rules of Civil Procedure.” [CITATION]. “Questions of law are fully reviewable on appeal of a post-conviction proceeding.”
[CITATION] (quoting [CITATION]). “A trial court’s findings of fact in a post-conviction proceeding
will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a).” [CITATION] (quoting [CITATION]). A clearly erroneous finding exists if “it is induced by an erroneous
view of the law, if it is not supported by any evidence, or if, although there is some evidence
to support it, a reviewing court is left with a definite and firm conviction a mistake has
been made.” [CITATION].
[¶12] Schweitzer argues he received ineffective assistance of counsel when he pleaded
guilty to four charges of fleeing police. He alleges the four charges occurred during the
same event and day, which he contends runs afoul of double jeopardy. He also alleges his
attorney should have given him notice of a potential double jeopardy defense.
[¶13] For a defendant to prevail on a claim for ineffective assistance of counsel, a party
applying the Strickland test must show:
“(1) counsel’s representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. The question of ineffective assistance of counsel is a mixed
question of law and fact and is fully reviewable on appeal.”
[CITATION]. “Courts need not address both prongs of the Strickland test, and if a
court can resolve the case by addressing only one prong it is encouraged to do so.”
[CITATION]. “The Strickland test is a high bar and must be applied with
scrupulous care.” [CITATION].
[¶14] The defendant must “overcome the ‘strong presumption’ that trial counsel’s
representation fell within the wide range of reasonable professional assistance, and courts
must consciously attempt to limit the distorting effect of hindsight” when establishing the
first Strickland prong. [CITATION]. The court must find whether “the identified acts or omissions were outside the wide range
of professionally competent assistance,” which must be weighed “in light of all the
circumstances.” Strickland v. Washington, 466 U.S. 668, 690 (1984). The attorney’s
misconduct must have prejudiced the defendant. [CITATION].
[¶15] When a “defendant pleads guilty on the advice of counsel, the defendant may only
attack the voluntary and intelligent character of the guilty plea.” [CITATION]. “The voluntariness of
such a guilty plea turns on ‘whether that advice was within the range of competence
demanded of attorneys in criminal cases.’” [CITATION]
[¶16] The district court found Schweitzer failed to show his attorney’s advice fell below the objective standard of reasonableness. Fleeing a police officer occurs when a driver of a motor vehicle “willfully fails or refuses to bring the vehicle to a stop, or who otherwise flees or attempts to elude, in any manner, a pursuing police vehicle or peace officer, when given a visual or audible signal to bring the vehicle to a stop.” N.D.C.C. § 39-10-71(1). The court found Schweitzer failed to provide substantive law supporting his claim that four counts of fleeing police during four pursuits on the same day violated the double jeopardy clause. Therefore, the court did not err when it found Schweitzer failed to meet his high burden of proving ineffective assistance of counsel. Moreover, the court’s findings that Schweitzer failed to provide any law, rule, or evidence supporting his unfounded, conclusory statements that he received ineffective assistance of counsel during his change of plea hearing were not clearly erroneous. The court’s findings were not induced by an erroneous view of the law, evidence exists to support the findings, and on the entire record, this Court is not left with a definite and firm conviction a mistake was made.
III
[¶17] The district court did not err in denying Schweitzer’s petition and amended petition for postconviction relief. We affirm.
[¶18] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Michael P. Hurly, D.J.
[¶19] The Honorable Michael P. Hurly, D.J., sitting in place of Bahr, J., disqualified.
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 143
Ronald Wayne Wootan, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240025
Appeal from the District Court of Rolette County, Northeast Judicial District,
the Honorable Anthony S. Benson, Judge.
AFFIRMED.
Per Curiam.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Brian D. Grosinger, State’s Attorney, Rolla, ND, for respondent and appellee. [CITATION]
No. 20240025
Per Curiam.
Ronald Wootan appeals from an order denying his postconviction relief
application entered after the district court held an evidentiary hearing on
remand. See [CITATION]. The court on remand found Wootan’s trial counsel’s representation of him was
reasonable and withdrawal of his guilty plea was not necessary to correct a
manifest injustice. Wootan argues the court erred in denying his application,
claiming he received ineffective assistance of counsel before entering his guilty
plea.
“When a defendant pleads guilty on the advice of counsel, the defendant
may only attack the voluntary and intelligent character of the guilty plea.”
[CITATION] (citation omitted). “The [district]
court has discretion in finding whether a manifest injustice necessitating the
withdrawal of a guilty plea exists, and we review the court’s decision for abuse
of discretion.” [CITATION] (citation
omitted). Findings of fact made in a postconviction relief proceeding are subject
to the clearly erroneous standard of review. [CITATION]. After a review of the record, we conclude the district court’s
findings of facts are not clearly erroneous, the court did not err in determining
Wootan failed to establish ineffective assistance of counsel, and the court did
not abuse its discretion by not allowing him to withdraw his guilty plea. We
summarily affirm under N.D.R.App.P. 35.1(a)(2) and (4).
[SEGMENT 3]
Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 136
Dondarro Jimmell Watts, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240011
Appeal from the District Court of Burleigh County, South Central Judicial District, the
Honorable Bonnie L. Storbakken, Judge.
AFFIRMED.
Per Curiam.
Rina Morales-Holmes, Minot, ND, for petitioner and appellant; submitted on brief.
Dennis H. Ingold, Bismarck, ND, for respondent and appellee; submitted on brief. Watts v. State
No. 20240011
Per Curiam.
[¶ 1] Dondarro Watts appeals from a district court order denying his application for
postconviction relief. A jury convicted Watts of indecent exposure. Watts appealed his
conviction, and this Court affirmed. [CITATION] Watts filed an application for postconviction relief, asserting he received ineffective assistance of
trial counsel. After a hearing, the court held Watts did not demonstrate his trial counsel’s
representation fell below an objective standard of reasonableness. The court further held
Watts did not demonstrate his trial counsel’s representation prejudiced him in any way.
[¶ 2] Findings of fact made in a postconviction relief proceeding are subject to the clearly
erroneous standard of review. [CITATION] After a
full review of the record, we conclude the district court’s findings of facts are not clearly
erroneous and the court did not err in determining Watts failed to establish ineffective
assistance of counsel. We summarily affirm under N.D.R.App.P. 35.1(a)(2).
[¶ 3] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 4, 2024
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 67
Jaime Urrabazo, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20230316
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Reid A. Brady, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Derek K. Steiner, Assistant State’s Attorney, Fargo, ND, for respondent and
appellee.
Urrabazo v. State
No. 20230316
Bahr, Justice.
[¶1] Jaime Urrabazo appeals from a district court order denying his amended
application for postconviction relief. Urrabazo argues the court erred when it
held his application is a misuse of process and that he failed to prove his claims
of ineffective assistance of counsel. We affirm.
I
[¶2] In April 2021, a jury found Urrabazo guilty of delivery of a controlled
substance. We summarily affirmed the conviction on appeal. State v. Urrabazo,
2021 ND 179, 965 N.W.2d 425.
[¶3] In August 2021, while his appeal was pending at this Court, Urrabazo
filed his first postconviction application. The district court set a hearing on the
application and Urrabazo failed to attend the hearing. The court dismissed the
case.
[¶4] Urrabazo filed this petition for postconviction relief in April 2023. The
district court assigned Urrabazo counsel, who filed an amended petition. In the
amended petition, Urrabazo argues the jury in his underlying trial was not
unanimous because one juror’s response during the polling of the jury is not
audible on the recording. The court held a hearing on the petition. At the
hearing, the court heard testimony from Urrabazo and his former trial counsel.
After the parties filed post-hearing briefs, the court denied the petition.
[¶5] In denying the petition, the district court found misuse of process by
Urrabazo because he inexcusably failed to raise his claim relating to the
alleged lack of jury unanimity in his first postconviction proceeding. The court
further found Urrabazo’s trial counsel was objectively reasonable for not
moving for a mistrial after the jury polling, and that Urrabazo’s appellant
counsel was objectively reasonable in not raising the issue of jury unanimity
on appeal.
1
II
[¶6] “Postconviction relief proceedings are civil in nature and governed by the
North Dakota Rules of Civil Procedure.” Everett v. State, 2023 ND 243, ¶ 6, 1
N.W.3d 590 (quoting Bridges v. State, 2022 ND 147, ¶ 5, 977 N.W.2d 718). In
postconviction proceedings, the applicant bears the burden to establish the
grounds for relief. Vogt v. State, 2022 ND 163, ¶ 5, 978 N.W.2d 727. The
standard of review for postconviction proceedings is clearly established:
A trial court’s findings of fact in post-conviction relief proceedings
will not be disturbed unless they are clearly erroneous. A finding
of fact is clearly erroneous if it is induced by an erroneous view of
the law, if it is not supported by any evidence, or if, although there
is some evidence to support it, a reviewing court is left with a
definite and firm conviction that a mistake has been made.
Questions of law are fully reviewable on appeal of a post-conviction
proceeding.
Kisi v. State, 2023 ND 226, ¶ 5, 998 N.W.2d 797 (quoting Olson v. State, 2019
ND 135, ¶ 7, 927 N.W.2d 444).
A
[¶7] Urrabazo argues the district court erred when it found his application
for postconviction relief was a misuse of process.
[¶8] In its order denying postconviction relief, the district court stated, “in his
first post-conviction case, Urrabazo inexcusably failed to raise an issue relating
to alleged lack of jury unanimity.” The court explained:
The trial transcript was completed in May 2021. Two months later,
Urrabazo personally filed his first application for post-conviction
relief . . . . In the application, he made no claim that the verdict
was not unanimous. And then at the March 2022 hearing on his
first application for relief, Urrabazo failed to appear.
[¶9] Urrabazo testified he discovered the alleged lack of jury unanimity while
reviewing the trial transcript. He also testified as to when he received the
transcripts:
2
Q So you got the transcripts from the trial while your direct
appeal was pending. Is that right?
A Yes, even before I—right when I filed for my appeal on it,
that’s when I got the transcripts.
Q Okay. And so you had those transcripts when [first appellate
counsel] was your attorney. Is that correct?
A Yes.
Q And you pointed out this lack of unanimous verdict to [first
appellate counsel]. Is that correct?
A Yes, it was at that moment, yes. At the time when I did, yes,
when I brought it up. Yeah.
[¶10] Urrabazo testified he had a conversation with his first appellate attorney
about the transcript and the issue of jury unanimity. The appellant brief in his
direct appeal was filed July 5, 2021. On August 3, 2021, Urrabazo signed a
motion to replace his first appellate counsel. His alleged discussion with his
first appellate attorney about the jury unanimity issue had to have occurred
before he signed his August 3, 2021 motion. Thus, according to his own
testimony, Urrabazo knew about the jury unanimity issue before August 3,
2021. However, when Urrabazo signed his August 4, 2021 petition for
postconviction relief, he did not raise the issue of jury unanimity. He then failed
to appear for the hearing on his first application for postconviction relief,
resulting in the district court dismissing the petition. This timeline, based on
Urrabazo’s own testimony, supports the court’s finding Urrabazo was aware of
the issue of jury unanimity and inexcusably failed to raise it in his first
postconviction relief case.
[¶11] The district court’s findings were not induced by an erroneous view of
the law and are supported by evidence. The court’s finding that Urrabazo’s
second petition for postconviction relief is an abuse of process is not clearly
erroneous.
B
[¶12] Urrabazo argues his trial counsel was ineffective for not raising the issue
of jury unanimity at trial. He further argues his appellate counsel was
ineffective for not raising the issue of jury unanimity on direct appeal.
3
[¶13] This Court’s standard for ineffective assistance of counsel is well
established:
To prevail on a claim for ineffective assistance of counsel, the
applicant must show: (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. The question of
ineffective assistance of counsel is a mixed question of law and fact
and is fully reviewable on appeal.
Koon v. State, 2023 ND 247, ¶ 21, 1 N.W.3d 593 (quoting Kratz v. State, 2022
ND 188, ¶ 12, 981 N.W.2d 891). “Courts need not address both prongs of the
Strickland test, and if a court can resolve the case by addressing only one prong
it is encouraged to do so.” Rourke v. State, 2018 ND 137, ¶ 6, 912 N.W.2d 311
(quoting Booth v. State, 2017 ND 97, ¶ 8, 893 N.W.2d 186).
[¶14] The district court concluded Urrabazo did not show the jury was not
unanimous. The court concluded Urrabazo’s attorneys’ representation was
objectively reasonable because they had no grounds to argue lack of jury
unanimity. A number of facts support the court’s findings. First, the written
verdict form signed by the jury leader indicates the jury found Urrabazo guilty.
Second, the jury instructions include an instruction for the jury to come to a
unanimous verdict. Third, following the polling of the jury, the court stated,
“[t]he jury has been individually polled. The verdict is unanimous.” Fourth,
neither Urrabazo nor his trial counsel objected to the results of the polling of
the jury. Fifth, Urrabazo’s trial counsel testified the guilty verdict was
unanimous. She further testified she would have remembered a non-
unanimous jury because it would have been a unique issue. Sixth, Urrabazo
testified at the postconviction hearing he did not remember whether the juror
responded during the polling. Finally, the clerk reading the names of the jurors
did not stop, indicating the juror provided a response, although the response is
not captured on the recording. The court concluded:
All these facts establish that the guilty verdict was unanimous.
The juror’s “non-response” in the transcript likely exists simply
because the response was not captured by the court’s recording
4
system. However, those in the courtroom, including Attorney
Carlson and the presiding judge, heard each of the twelve jurors
indicate the guilty verdict was their true and correct verdict. . . .
. . . Urrabazo at best has shown in this case a failure in the
electronic recording equipment during jury polling, not a denial of
his right to a unanimous verdict.
[¶15] Urrabazo only called himself in support of his claim; he could have called
further witnesses to support his position and he chose not to. The State called
Urrabazo’s trial counsel and the district court found Urrabazo’s trial counsel’s
testimony credible. The court did not find Urrabazo’s testimony credible. “The
task of weighing the evidence and judging the credibility of witnesses belongs
exclusively to the trier of fact, and we do not reweigh credibility or resolve
conflicts in the evidence.” Truelove v. State, 2020 ND 142, ¶ 15, 945 N.W.2d
272 (quoting Odom v. State, 2010 ND 65, ¶ 12, 780 N.W.2d 666).
[¶16] The district court’s finding Urrabazo did not show his counsels’
representation fell below an objective standard of reasonableness was not
induced by an erroneous view of the law and is supported by evidence. The
court did not clearly err in finding Urrabazo did not show his counsels’
representation was below the standard of reasonableness.
III
[¶17] We have considered the parties’ other arguments and conclude they are
unnecessary for the decision or are without merit. We affirm.
[¶18] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
5
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Law
9959960
[SEGMENT 1]
2024 IL App (4th) 240218
FILED
NO. 4-24-0218 September 26, 2024
Carla Bender
IN THE APPELLATE COURT
th District Appellate
Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Henry County
SARA L. VINCENT, ) No. 24CF33
Defendant-Appellant. )
) Honorable
) Terence M. Patton,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Zenoff and Lannerd concurred in the judgment and opinion.
OPINION
¶1 Defendant, Sara L. Vincent, appeals the trial court’s order denying her pretrial
release pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) ([CITATION]), hereinafter as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly
known as the Pretrial Fairness Act (Act).
¶2 Defendant argues on appeal that the trial court lacked authority to deny her pretrial
release because (1) the State did not charge her with a detainable offense and (2) pretrial release
could not be revoked pursuant to section 110-6(a) of the Code ([CITATION])—the ground asserted by the State in its petition to detain—because she had not been
released on any of the charges in the present case, Henry County case No. 24-CF-33. Alternatively,
defendant asserts that the court abused its discretion when it granted the State’s petition to detain
because the State failed to meet its burden of proof that no condition or combination of conditions of pretrial release could mitigate any concerns posed by defendant’s release. We affirm the trial
court’s decision.
¶3 I. BACKGROUND
¶4 A. The Charges
¶5 On February 2, 2024, the State charged defendant in a two-count information with
aggravated battery to a peace officer (720 ILCS 5/12-3.05(d)(4) (West 2022)) and obstructing a
peace officer (id. § 31-1(a)(2)). On that same day, the State filed a petition to deny defendant’s
pretrial release using a preprinted form with boxes designated for the various grounds for pretrial
release. The State checked only one box, which alleged the following ground for pretrial detention:
“Defendant is on Pretrial Release in case number 2024CM10, a felony or Class A misdemeanor
and defendant is charged with a felony or a Class A offense that was committed while the
defendant was on Pretrial Release in the instant offense; See: 725 ILCS 5/110-6(a).”
¶6 For its factual basis, the State asserted the following in its petition:
“02/02/2024 deputies dispatched to IL Hwy. 81 between Cambridge and
Andover for person walking on highway. Subject ID’d as Sara Vincent. Vincent
[would not] stop walking on the roadway and crossing the lanes of traffic when
ordered by the deputies. Placed under arrest. Vincent had items wrapped around the
handcuffs. Sgt. Hendrick removed her cuffs to unwrap the items. Vincent bit him
on the leg above his knee resulting in bite marks.”
¶7 B. The Detention Hearing
¶8 On February 5, 2024, the trial court conducted a detention hearing.
¶9 Before the detention hearing, the trial court admonished defendant of the charges
and advised her of her rights. The following exchange occurred:
“[THE COURT]: You have the right to be represented by an attorney, and
if you can’t afford an attorney, one is appointed for you.
Can you afford to hire your own attorney?
THE DEFENDANT: No. I’m not willing to pay an attorney for anything. I
have no—I can speak for myself.
THE COURT: So are you—are you asking for a public defender? Or are
you wanting to waive your right to an attorney and represent yourself?
THE DEFENDANT: I don’t want to waive my right to it, because if I do
need some assistance to deal with the legal terms that I haven’t studied yet—
THE COURT: Sure.
THE DEFENDANT:—then yeah.
THE COURT: Okay. You represent her on the misdemeanor; is that—
[DEFENSE COUNSEL]: I do, Your Honor.
THE COURT:—correct? That 24-CM-10?
All right. I will appoint public defender to represent you.”
¶ 10 The trial court then proceeded to the detention hearing:
“[THE COURT]: Okay. [Defense counsel], have you received a copy of the
State’s Verified Petition to Deny Pretrial Release?
[DEFENSE COUNSEL]: I have, Your Honor.
THE COURT: Have you had the opportunity to confer with your client?
[DEFENSE COUNSEL]: I have, Your Honor.
THE COURT: Are you ready to proceed today?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Okay. [State], you may present your evidence or proffer.”
¶ 11 The State requested the trial court to take judicial notice of the pretrial investigation
report (PTI), which the court granted. The PTI contained only defendant’s criminal history because
she declined to be interviewed. The PTI showed that defendant was on probation for aggravated
battery to a peace officer, possession of methamphetamine, and obstructing justice. Defendant was
also on pretrial release for aggravated assault with a deadly weapon, a Class A misdemeanor.
Defense counsel proffered that “my client has stated that if she were to be released, she would go
to her parents’ house here in Cambridge, and that’s the proffer that I have at this time.”
¶ 12 The State then made the following argument:
“As the Court has already put forth, she is on probation at this current time
for a similar offense. She is on pretrial release for 24-CM-10 for aggravated assault
with a deadly weapon.
I don’t believe there is a series of conditions that will prevent [defendant]
from accruing further cases, and there is a—she’s charged in at least two situations
here with two separate victims.
So, it’s the State’s position that pretrial release should be denied at this point
in time.”
¶ 13 In response, defense counsel asserted the following:
“Your Honor, again, the State has to show three things here, that the—that
she committed these offenses, basically a clear and convincing standard; number
two is that she is a danger to any person or persons in the community; but in the
third one that I want to talk about here, which is that no condition or combinations
of conditions that can prevent this from happening again, [defendant] is saying
she’s willing to wear an ankle bracelet which would help give the Court some as-
surances of where she is and give the pretrial services officer an ability to keep
track of her to some degree, as well as she’s willing to live at her parents’ house
here in Cambridge. Again, with her parents around her, it would give her a little bit
more structure and give her the ability to deal with any issues and not have an oc-
currence like this happen again.
So, we don’t believe the State has met the burden in its petition.”
¶ 14 The trial court granted the State’s motion to detain defendant, explaining—along
with some discussion with defendant—its reasoning as follows:
“So, she’s on probation for ag battery to a peace officer, obstructing justice.
She’s got a pending charge for ag assault with a deadly weapon, a knife. *** She’s
on pretrial release on that.
THE DEFENDANT: It wasn’t a deadly weapon. It was a simple steak knife.
THE COURT: Okay. She’s on pretrial release for that ag assault.
Then she’s walking down the highway, cops find her, try to get her off the
highway, and she resists that arrest and bites an officer. So, another aggravated
battery to a peace officer.
So, I find the proof is evident or the presumption great that she committed
the offense as listed, ag battery to a peace officer. I find that she poses a real and
present threat to the safety of person or community, because these acts of violence
or threats keep happening.
So, the question is[:] is there a condition or combination of conditions that
can mitigate the real and present threat. [Defense counsel] has proposed an ankle
bracelet.
THE DEFENDANT: I don’t think it’s necessary. I’m not going to run on
charges like these, because I am going the fight them because I didn’t do anything
wrong. I didn’t assault him with a weapon at all.
[DEFENSE COUNSEL]: Ma’am [(defendant)], please don’t say anything
more at this point.
THE COURT: The ankle monitor lets you monitor where they’re going, but
[SEGMENT 2]
it’s not going to stop her from having contact with other people in the community,
officers and other citizens, and an ankle monitor isn’t going to stop her from making
threats or battering other people. I don’t think this is the type of danger that an ankle
monitor can mitigate.
So, I find that there is no condition or combination of conditions that can
mitigate the real and present threat.
So, the State’s petition is granted. The defendant is denied pretrial release.”
¶ 15 The trial court entered a written detention order, in which it found that (1) “[t]he
charged offense/circumstance is eligible for detention” and (2) clear and convincing evidence
existed to meet the dangerous standard contained in section 110-6.1(a)(1)-(6) of the Code (725
ILCS 5/110-6.1(a)(1)-(6) (West 2022)). The court further found that less restrictive conditions
would not assure the safety of the community because defendant was “on probation for aggravated
battery/peace officer, on pretrial release for aggravated assault in 24CM10, acts/threats of violence
keep occurring.” The court concluded that pretrial release should be denied because an “ankle
monitor wouldn’t stop her from making threats or battering others.”
¶ 16 C. The Appellate Proceedings
¶ 17 In February 2024, defendant filed a notice of appeal utilizing the notice of appeal
form in the Article VI Forms Appendix to the Illinois Supreme Court Rules. See Ill. S. Ct. Rs. Art.
VI Forms Appendix R. 606(d). In her notice of appeal, defendant argued only that the State failed
to meet its burden of proving by clear and convincing evidence that no condition or combination
of conditions of release could mitigate the threat posed by defendant’s release. Specifically,
defendant asserted the following:
“The State could not articulate specific facts that make the defendant non-
compliant with any condition the court could impose. [Defendant] has the ability to
live with her parents, who could assist her with making sure she complied with the
terms of pre-trial release. She was also willing to agree to wear an ankle bracelet to
make sure she is in compliance.”
¶ 18 The Office of the State Appellate Defender (OSAD) was appointed to represent
defendant on appeal, and in March 2024, OSAD filed, on defendant’s behalf, a memorandum in
support of the appeal, arguing that (1) defendant did not commit a detainable offense and (2) the
State failed to prove that no conditions of release would mitigate the threat.
¶ 19 In April 2024, this court affirmed the trial court’s decision, concluding the trial
court did not abuse its discretion by granting the State’s petition for pretrial detention. [CITATION].
¶ 20 Defendant filed a petition for leave to appeal to the Illinois Supreme Court. In June
2024, the supreme court entered a supervisory order denying the petition for leave to appeal but
instructing this court to vacate its prior decision and issue a decision pursuant to Illinois Supreme
Court Rule 23(a), (b) (eff. Feb. 1, 2023). [CITATION]
¶ 21 In August 2024, this court vacated its prior decision, and we now affirm for the
following reasons.
¶ 22 II. ANALYSIS
¶ 23 Defendant argues on appeal that the trial court lacked authority to deny her pretrial
release because (1) the State did not charge her with a detainable offense and (2) pretrial release
could not be revoked pursuant to section 110-6(a) of the Code—the ground asserted by the State
in its petition to detain—because she had not been released on any of the charges in the present
case, No. 24-CF-33. Alternatively, defendant asserts that the court abused its discretion when it
granted the State’s petition to detain because the State failed to meet its burden of proof that no
condition or combination of conditions of pretrial release could mitigate any concerns posed by
defendant’s release. We affirm the trial court’s decision.
¶ 24 As an initial matter, defendant concedes that she forfeited her claims that (1) the
State did not charge her with a detainable offense and (2) pretrial release could not be revoked
pursuant to section 110-6(a) of the Code. See [CITATION] (“A
defendant forfeits an issue for purposes of appellate review by failing to object to the alleged error
or raise it in a written posttrial motion.”). Nonetheless, she contends that we may review her claims
of error as either second-prong plain error or ineffective assistance of counsel. We address each
claim in turn.
¶ 25 A. Defendant’s Forfeited Arguments
¶ 26 In her memorandum, defendant argues as follows:
“While the trial court may have been authorized under section 110-6(a) to revoke
[defendant’s] pretrial release in 202[4] CM 10 based on the allegation of new
charges, the trial court did not have the authority to deny [defendant] pretrial release
in the instant case because the charged aggravated battery of a peace officer offense
is not a detainable offense. As a result, this Court should vacate the trial court’s
detention order.”
¶ 27
. Second-Prong Plain Error
¶ 28 Defendant does not argue that the evidence was closely balanced. Instead, she
claims that the trial court’s ordering her pretrial detention when she had not been charged with a
detainable offense rises to the level of structural error. We emphatically disagree.
¶ 29 a. The Applicable Law
¶ 30 The First District recently explained second-prong plain error in [CITATION],
¶ 69, in which it wrote the following:
“ ‘Error under the second prong of plain error analysis has been equated with
structural error, meaning that automatic reversal is only required where an error is
deemed to be a systemic error that serves to “erode the integrity of the judicial
process and undermine the fairness of the defendant’s trial.” ’ [CITATION],
¶ 78 (quoting [CITATION]). ‘In other words, “[a]n error is typically designated as structural
only if it necessarily renders a criminal trial fundamentally unfair or an unreliable
means of determining guilt or innocence.” ’ Id. (quoting [CITATION], 609 (2010)). ‘Structural errors have been recognized in only a limited
class of cases including: a complete denial of counsel; trial before a biased judge;
racial discrimination in the selection of a grand jury; denial of self-representation
at trial; denial of a public trial; and a defective reasonable doubt instruction.’ Id.
(citing [CITATION]).”
¶ 31 b. This Case
¶ 32 Although the usual first step in a plain error analysis is to determine whether there
was any error at all, we need not do so here because we conclude that any alleged error in the
detention proceedings does not rise to the level of structural error.
¶ 33 Both the Illinois Supreme Court and the United States Supreme Court have found
structural error only in a very narrow and extreme set of circumstances. [CITATION]. And for good reason: structural error
requires automatic reversal. When a defendant is completely denied counsel or the ability to
proceed pro se at trial, that defendant has been deprived of a meaningful chance to defend herself
in whichever way she sees fit. See [CITATION], ¶ 69. Similarly, a nonpublic
trial, a proceeding before biased judge, racial discrimination in the selection of a grand jury, or a
defective reasonable doubt instruction all cast doubt on the legitimacy of the proceedings and
render the proceedings fundamentally unfair. Id. In these situations, prejudice is presumed because
of the magnitude of the error and its possible effect on the defendant’s case.
¶ 34 Defendant claims that her pretrial detention, despite not being charged with a
detainable offense as required by statute, amounts to structural error because it affects her
fundamental liberty interest. Defendant’s position is clearly untenable because by that logic, every
error in a criminal trial could be said to affect a defendant’s fundamental right to liberty. Further,
for the following reasons, the very nature of proceedings under the Act makes a colorable claim
of structural error nearly impossible to assert.
- 10 - ¶ 35 The Code requires a trial court to revisit a defendant’s pretrial detention or
conditions of pretrial release each time a defendant appears in court (725 ILCS 5/110-5(f-5), 110-
6(j), 110-6.1(i-5) (West 2022)), giving her and the court multiple opportunities to correct any errors
regarding her detention or address new issues pertaining thereto. Experience shows that defendants
charged with felony offenses typically appear in court once every 45 to 60 days; that means every
45 to 65 days, a defendant will get to revisit her pretrial detention and raise questions with the
court concerning her detention.
¶ 36 This timetable for additional judicial scrutiny is much faster than the appeals
process involving routine appeals from criminal convictions. Further, structural error is
significantly less likely to arise in proceedings under the Act because, unlike the usual appeals
process, defendants are required to file a motion for relief in the trial court as a precondition to
appellate review. Ill. S. Ct. R. 604(h)(2) (eff. Apr. 15, 2024).
[SEGMENT 3]
¶ 37 Defendant cites this court’s decision in [CITATION],
¶¶ 15, 22-23, as support for her second-prong plain error claim. However, [CITATION]is easily
distinguishable and serves only to demonstrate the exceedingly limited circumstances in which a
reviewing court will even entertain granting relief under the second prong.
¶ 38 In [CITATION], the defendant was completely denied the ability to participate in the
pretrial detention proceedings because he (1) was not personally present, (2) could not hear what
was being said in the courtroom, and (3) could not communicate with the trial court for the majority
of the hearing because his microphone was muted. Id. Because he was unable to hear or participate
in criminal proceedings to determine whether he was eligible for pretrial release, we concluded
that he was denied his right to be heard—a cornerstone of all due process rights—and ordered the
detention order vacated and remanded for further proceedings in compliance with the Act. Id.
- 11 - ¶ 39 As [CITATION] shows, structural errors will be found in pretrial detention cases, like all
criminal cases, only when the error is so egregious that it renders the proceedings fundamentally
unfair or erodes the integrity of the judicial process, such as the complete deprivation of a core
constitutional right.
¶ 40 By contrast, in this case, defendant was personally present and was able to speak to
the trial court throughout the proceedings. The court ensured that defendant was advised of her
right to proceed with or without counsel and made sure defendant wished to be represented by
counsel before appointing a public defender. Moreover, the court appointed as defendant’s counsel
the same attorney who was representing defendant in her misdemeanor case, and the court
confirmed on the record that counsel (1) had received the State’s petition to detain, (2) had an
adequate opportunity to confer with defendant, and (3) was ready to proceed with a hearing on the
petition.
¶ 41 Accordingly, we conclude that the alleged error falls far short of constituting a
structural error.
¶ 42
. Ineffective Assistance of Counsel
¶ 43 Assuming her plain error argument fails, defendant argues in the alternative that
her counsel rendered ineffective assistance by failing to (1) argue in the trial court that defendant
was not charged with a detainable offense or (2) raise the same claim in her notice of appeal as a
basis for reversal. We disagree.
¶ 44 a. The Applicable Law
¶ 45 “To demonstrate ineffective assistance of counsel, a defendant must show that
(1) the attorney’s performance fell below an objective standard of reasonableness and (2) the
attorney’s deficient performance prejudiced the defendant in that, absent counsel’s deficient
- 12 - performance, there is a reasonable probability that the result of the proceeding would have been
different.” [CITATION], ¶ 90 (citing [CITATION]). “A reasonable probability is a probability which undermines confidence in the
outcome of the trial.” [CITATION], ¶ 84. “Because the defendant must satisfy both prongs of this test, the failure to establish either is fatal to the claim.” [CITATION], ¶ 90 (citing [CITATION]). To succeed on a claim of ineffective
assistance of counsel, defendant must overcome the strong presumption that counsel’s actions were
the result of trial strategy. [CITATION], ¶ 83. “When a claim of ineffective
assistance of counsel was not raised at the trial court, this court’s review is de novo.” [CITATION], ¶ 85.
¶ 46 b. This Case
¶ 47 i. Prejudice
¶ 48 At the detention hearing, the trial court confirmed with defense counsel that he
currently represented defendant in the pending misdemeanor case for which defendant was on
pretrial release. Given the context that (1) the State sought to detain defendant on the grounds that
she committed a felony offense while on pretrial release in case No. 24-CM-10, and the State cited
section 110-6(a) in its petition, (2) counsel was already representing defendant in that
misdemeanor case, and (3) section 110-6(a) permits a court, on its own motion, to move to revoke
pretrial release when a defendant has committed a subsequent felony, counsel likely recognized
that any objection to the technical defects in the proceedings would ultimately be futile because
the trial court could have corrected them immediately simply by calling case No. 24-CM-10 for a
hearing instanter. Because (1) defendant concedes that she was detainable pursuant to section 110-
6(a) of the Code and (2) the Code authorized the trial court to move to revoke pretrial release and
conduct a hearing on the same on its own motion (725 ILCS 5/110-6(a) (West 2022)), defendant
- 13 - cannot establish any prejudice from the technical defect she has identified.
¶ 49 ii. Trial Strategy
¶ 50 Because we have determined that no prejudice could result, we need not address
whether counsel performed deficiently. However, we offer the following observations, which
provide additional support for our conclusion that counsel did not render ineffective assistance.
Indeed, the record shows that counsel likely did not object to the State’s petition as a matter of
strategy. Had counsel raised the objection now raised on appeal, the State likely would have
corrected the procedural error by simply restyling its petition to detain in the felony case as a
petition to revoke pretrial release in the misdemeanor case, which appears to be the substance of
the State’s and defense counsel’s arguments and the trial court’s reasoning for detention. Indeed,
the State never argued—either in its written motion or at the detention hearing—that defendant
had committed an independently detainable offense; it very clearly sought to detain defendant only
on the ground that she committed a felony offense while on pretrial release.
¶ 51 We note that at a revocation hearing, the State must prove, “by clear and convincing
evidence, that no condition or combination of conditions of release would reasonably *** prevent
the defendant from being charged with a subsequent felony or Class A misdemeanor” (id.), which
is what both the State and defense counsel actually argued at the hearing, suggesting that counsel
understood that the State’s petition for detention was more appropriately characterized as a petition
for revocation. See [CITATION] (reaffirming the well-settled rule that the substance of a motion’s content controls over its title
when determining its nature). In this situation, defendant asks this court to elevate form over
substance by assuming that the State (1) was not seeking a revocation and (2) could not have easily
(a) restyled its petition as one to revoke pretrial release rather than deny it and (b) refiled the
- 14 - petition under the 24-CM-10 case number instead of in the new felony case. We decline to do so.
¶ 52 We emphasize that the State’s petition upon which the February 2024 detention
hearing was conducted alleged as the basis for defendant’s detention only that defendant was “on
Pretrial Release in case number 2024CM10, a felony or Class A misdemeanor and defendant is
charged with a felony or a Class A offense that was committed while the defendant was on Pretrial
Release in the instant offense; See: 725 ILCS 5/110-6(a).” OSAD concedes on appeal that the trial
court “may have been authorized under [that] section” to revoke defendant’s pretrial release but
argues on appeal the trial court could not deny defendant pretrial release because the charged
offense of aggravated battery of a peace officer was not a detainable offense. Supra ¶ 26.
¶ 53 Defendant essentially argues that counsel was ineffective for failing to challenge
the State’s petition to detain on a ground the State never asserted. However, in our view, counsel
quite likely did not object to the State’s petition because counsel recognized that defendant was
detainable pursuant to section 110-6(a), as OSAD concedes on appeal. Accordingly, defendant’s
counsel’s performance during the hearing cannot be viewed as falling “below an objective standard
of reasonableness” when the State was not proceeding on the grounds defendant contends on
appeal were improper.
¶ 54 Accordingly, we conclude that defendant did not receive ineffective assistance of
counsel.
¶ 55 B. Conditions of Release
¶ 56 Having concluded that defendant’s other arguments fail, we last address whether
the trial court abused its discretion by concluding that defendant be detained.
¶ 57
. The Applicable Law
¶ 58 Section 110-2(a) of the Code (725 ILCS 5/110-2(a) (West 2022)) provides that all
- 15 - criminal defendants are presumed eligible for pretrial release. A defendant may be denied release
only if, upon verified petition, the State proves by clear and convincing evidence at a detention
hearing that, in pertinent part, (1) the proof is evident or the presumption great the defendant
committed a detainable offense, (2) the defendant poses a threat to the safety of the community or
any person in the community, and (3) no combination of conditions can mitigate the threat to the
safety of the community. Id. § 110-6.1(a), (e)(1)-(3). We review a trial court’s ruling denying a
defendant pretrial release for an abuse of discretion. [CITATION], ¶ 13. “An abuse of discretion occurs when the [trial] court’s decision is arbitrary, fanciful or
[SEGMENT 4]
unreasonable or where no reasonable person would agree with the position adopted by the [trial]
court.” (Internal quotation marks omitted.) Id.
¶ 59
. This Case
¶ 60 Before the trial court, defense counsel addressed only whether appropriate
conditions could mitigate any threat posed by defendant’s pretrial release, implicitly conceding (or
at least indicating to the trial court) that the State had demonstrated (1) the proof was evident or
presumption great that defendant committed a detainable offense and (2) defendant posed a threat
to the safety of the community. In her notice of appeal and memorandum in support thereof,
defendant contends that the State failed to present any evidence about the inadequacy of pretrial
conditions. Further, defendant claims that the court’s ruling that no set of conditions could mitigate
the risk defendant posed was an abuse of discretion because she was willing to wear a GPS
monitoring device and would be living with her parents, who would give her structure and stability.
We disagree.
¶ 61 Here, the record demonstrates that the trial court considered all available pretrial
conditions when addressing the State’s petition to deny pretrial release. The State’s petition was
- 16 - premised solely on defendant’s committing the felony offenses charged in case No. 24-CF-33
while she was on pretrial release for a Class A misdemeanor in case No. 24-CM-10, namely,
aggravated assault with a deadly weapon. See [CITATION] ¶ 40 (rejecting defendant’s argument that State
failed to meet its burden of proof on conditions of release where the State’s “central argument
against the sufficiency of conditions was defendant’s past misconduct” while on probation). “This
is a highly relevant concern, as a defendant’s release on conditions depends on the court having
confidence that the defendant will comply with those conditions.” (Emphasis in original.) [CITATION]
¶ 62 The cases cited by defendant are distinguishable because the trial court in the
present case, unlike those other cases, explicitly considered and rejected the conditions of release
that defendant claims would have been sufficient. See [CITATION] ¶¶ 41-42 (distinguishing cases that
reversed a pretrial detention order for a trial court’s failure to address pretrial release conditions
and holding that a trial court is presumed to have considered conditions of release when (1) the
parties addressed conditions in their arguments and (2) the court gave a specific rationale for its
finding).
¶ 63 Contrary to defendant’s claims, we are not convinced that trial court erred by
concluding that her living with her parents and wearing an ankle monitor would not decrease the
risks she posed to the community, including to law enforcement. As the court noted, defendant
had a history of resisting arrest and battering police officers. Although an ankle monitor would
allow the authorities to know where defendant was at any given time, it would not stop her from
leaving a residence, as she did in this case, which might then require police intervention. Similarly,
the court could have reasonably concluded that defendant might pose a threat to her parents, which
would also require police intervention. Ultimately, defendant’s recent and persistent history of
battering police officers when they attempted to stop her illegal and potentially dangerous conduct
- 17 - simply could not be mitigated if she were released. Accordingly, we conclude that (1) the State
met its burden of proof and (2) the trial court appropriately exercised its discretion to deny
defendant pretrial release.
¶ 64 III. CONCLUSION
¶ 65 For the reasons stated, we affirm the trial court’s judgment.
¶ 66 Affirmed.
- 18 - [CITATION]
Decision Under Review: Appeal from the Circuit Court of Henry County, No. 24-CF-33;
the Hon. Terence M. Patton, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Cristina Law Merri-
for man, of State Appellate Defender’s Office, of Chicago, for appel-
Appellant: lant.
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys Ap-
for pellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
- 19 -
NOTICE
IL App (4th) 240664-U
This Order was filed under
FILED
Supreme Court Rule 23 and is July 19, 2024
NO. 4-24-0664
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Tazewell County
BRIAN R. CHILDERS, ) No. 24CF197
Defendant-Appellant. )
) Honorable
) Christopher R. Doscotch,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Justices Lannerd and Vancil concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not abuse its discretion in denying defendant pretrial
release.
(2) Defendant’s detention is not barred by collateral estoppel.
¶2 Defendant, Brian R. Childers, appeals the trial court’s order denying him pretrial
release under section 110-6.1(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/110-6.1(a) (West 2022)), hereinafter as amended by Public Acts 101-652, § 10-255 and
102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act. Defendant
argues the court abused its discretion in granting the State’s petition to deny him pretrial release
and the court should have dismissed the State’s petition under the doctrine of collateral estoppel.
We affirm. ¶3 I. BACKGROUND
¶4 This appeal involves defendant’s March 18, 2024, conduct in two counties: Peoria
County and Tazewell County. In Peoria County, defendant was charged on March 19, 2024, with
aggravated assault. The State alleged defendant displayed a handgun while at 610 South Western
Avenue in Peoria, Illinois, placing Terravis Ward, a police officer, in reasonable apprehension of
receiving a battery. As charged, the aggravated assault was a Class 4 felony.
¶5 In the Peoria County case, the State sought the pretrial detention of defendant. At
the hearing on the State’s request, the State proffered Officer Ward attempted to conduct a traffic
stop of a Honda pickup that defendant was driving. After Officer Ward activated his lights and
siren, the pickup sped away from him. A short time later, Officer Ward saw the pickup pull into
a parking lot on Western Avenue. Officer Ward approached defendant. Defendant pointed a
“compact-style handgun” at Officer Ward, returned to his pickup, and drove away. Officers later
spoke with Leah Sloan, who had been in the pickup with defendant. Officers ultimately found
defendant at the Par-A-Dice Casino in East Peoria, Illinois, where he was taken into custody. He
was found in possession of a handgun and arrested by the Tazewell County Police Department.
Defendant admitted pointing the gun at Officer Ward. The pretrial report indicates defendant
scored a 2 out of 14 on the pretrial risk assessment, indicating he was suitable for pretrial
supervision. The trial court denied the State’s petition for pretrial detention.
¶6 In Tazewell County, on March 22, 2024, defendant was charged with three
offenses for the events occurring on March 18, 2024. Count 1 charges defendant committed
armed violence (720 ILCS 5/33A-2(a) (West 2022)), a Class X felony. Counts 2 and 3 allege
defendant committed unlawful possession of methamphetamine (720 ILCS 646/60(a)(1), (a)(3)
(West 2022)).
==== Part of a Court Ruling ====
¶7 That same day, the State sought the pretrial detention of defendant. Defendant
responded by filing a motion to dismiss based on collateral estoppel. Defendant asserted because
the Peoria County court had considered the same issues and ruled pretrial detention was not
appropriate, the State could not seek his detention on the same issues in Tazewell County.
¶8 The trial court held a hearing on the motion to dismiss the State’s petition and the
issue of pretrial detention. The court began by addressing the motion to dismiss. For that motion,
defendant emphasized the case, though occurring in two counties, was the result of “one
elongated incident.” The court denied the petition upon finding no issue preclusion. The court
emphasized the Code involves consideration of the “ ‘[n]ature and circumstances of the offense
charged,’ ” and the charged offenses were different in the two cases.
¶9 On the matter of the State’s petition to deny defendant pretrial release, the State
presented testimony and made a proffer to detain defendant under both the dangerousness and
willful-flight standards. The State first called Officer Ward. According to Officer Ward, he was
[SEGMENT 5]
on patrol at 5 a.m. on March 18, 2024, when he observed a Honda pickup parked in front of 2700
West Starr Street in Peoria. The house at that address “seemed like a flop house” in which illegal
narcotics activity occurred. When the pickup left the residence, Officer Ward followed. Before
turning onto Western Avenue, the driver of the pickup did not activate a turn signal and nearly
caused an accident. Officer Ward attempted a traffic stop. After Officer Ward activated his
overhead lights and siren, the pickup “[t]ook off at a high rate of speed.” Officer Ward turned off
his lights and sirens and stopped pursuit. Officer Ward continued to patrol the area and located
the pickup in a parking lot within approximately one minute. Officer Ward contacted dispatch
and then reactivated his lights. Officer Ward exited his squad car and approached the driver’s
side of the pickup. Officer Ward asked defendant to step out of the vehicle. Defendant did not
comply. The officer then unholstered his sidearm and pointed it in defendant’s direction.
Defendant responded by “produc[ing] a small compact handgun and pointed it directly at”
Officer Ward. Officer Ward, who feared for his life, retreated to the passenger side tailgate of the
pickup and held his firearm directly at the driver’s side. Defendant drove away. Officer Ward
returned to 2700 West Starr Street and spoke to Sloan. Sloan identified defendant as the driver of
the pickup. She said she had been riding with him and asked him to drop her off, as “he was
acting erratic, appeared to be intoxicated, speeding, and driving recklessly through the city.”
¶ 10 The State then made a proffer in support of its petition. According to the proffer,
when defendant pulled the gun on Officer Ward, defendant said, “Don’t f*** with me, Officer.”
Defendant was found midmorning, around checkout time, outside the Par-A-Dice Casino in
Tazewell County. Because officers knew defendant had a gun, they drew their weapons. Officers
were ordering him to the ground, and defendant stood there for several minutes, “quietly
drinking his coffee.” The State emphasized defendant was from Alabama and not an Illinois
resident. When defendant was arrested, approximately 18 grams of methamphetamine were
found in his belongings inside his hotel room.
¶ 11 Defense counsel emphasized there was no physical altercation at the time of
defendant’s arrest and thus no evidence of violence in defendant’s Tazewell County behavior.
Defendant’s father had recently died. Defense counsel argued the pretrial bond report from
Peoria County shows defendant scored a 2 out of a possible 14, showing him to be a low risk for
flight or future offenses.
¶ 12 Defense counsel called Brian Long, a Tazewell County probation officer, to
testify regarding the pretrial investigation report he prepared for defendant’s case. Officer Long
prepared defendant’s report on March 25, 2024. Officer Long used the Revised Virginia Pretrial
Risk Assessment Instrument and found defendant’s risk of pretrial misconduct was a 10 out of
14. Officer Long testified, if the charges for Peoria County and Tazewell County were made at
the same time, defendant would have scored a 6 out of 14. Officer Long testified the drug-
possession charges would have scored at 3 points, criminal history at 2 points, and
unemployment at 1 point. With this adjustment, defendant showed a 90% likelihood of appearing
in court and not committing an additional offense. However, given defendant was charged with a
Class X felony, Officer Long’s recommendation at the end of the report would not change.
Officer Long’s pretrial report concluded with the following sentence: “Based on the defendant’s
risk of misconduct and the nature of the offense, Pretrial Services is unable to provide reasonable
assurance of the defendant’s future compliance with conditions of release.”
¶ 13 Defense counsel noted defendant was cooperative during the three days he was on
pretrial supervision between his release from Peoria County and his arrest in Tazewell County.
Defense counsel requested defendant be released with the same conditions imposed in Peoria
County, such as home confinement. According to the pretrial investigation report, defendant, a
lifelong resident of Alabama, had been staying with his cousin in Peoria since January 2024.
¶ 14 The trial court granted the State’s petition. The court found the State proved by
clear and convincing evidence the proof was evident and presumption great defendant committed
the qualifying offense, a fact conceded by defendant. The court further noted defendant had
access to weapons and despite denying substance-abuse issues, he was found with 18 grams of
methamphetamine and was driving recklessly through the city. Defendant also had a prior
conviction for driving under the influence (DUI). The court found the State proved by clear and
convincing evidence defendant poses a real and present threat to the safety of the community,
including the police. The court further found the State proved willful flight:
“The defendant has no ties to the community here. He just came here in January.
He is staying in a hotel. He indicates he lives with his father. The other one he’s
staying with his cousin. And his whole life he has lived in Alabama. We’re on a
Class X felony punishable by up to 15 years.”
The court further found no condition or combination of conditions could mitigate the threat. The
court noted defense counsel was correct in that the information for this case was available to the
Peoria County court as well but found the difference in the charges filed was key, emphasizing
defendant, in Tazewell County, was charged with a Class X felony and methamphetamine-
possession charges.
¶ 15 After the hearing, the trial court also entered a written detention order. The court
found defendant poses a real and present threat and checked the following boxes to support its
finding: “Violent nature of the offense”; “Alleged use of a weapon”; “Identity of those to whom
Defendant poses a threat, and the nature of the threat”; “Defendant being known to possess
weapons, or have access to weapons”; and “Defendant’s history of violent/abusive behavior.”
For the finding the threat of defendant’s release cannot be mitigated by any release condition or
combination of conditions, the court added the following: “Articulable facts of the case - reasons
marked above and for reasons stated in the record.”
¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, defendant first contends the State presented no argument or evidence
as to why he could not be released on conditions, despite the fact the Peoria County court found
defendant could be released on conditions based on similar facts resulting in the charges.
Defendant argues the State did not argue or prove no condition or combination of conditions can
mitigate any threat. Defendant maintains the trial court improperly relied on its baseless finding
defendant had a significant history of alcohol and substance abuse, as his only offense was a DUI
from 2000. Defendant further contends the court’s ruling was based primarily on facts occurring
in Peoria County during the attempted traffic stop as reasons to deny him pretrial release but
failed to explain why the Peoria County court’s decision finding pretrial conditions can be
imposed was erroneous. Defendant further highlights his minimal criminal history, the absence
of any failures to appear, no reported violations of conditions of release, and his successful use of
the GPS monitor.
¶ 19 Under the Code, courts presume all criminal defendants are eligible for pretrial
release. [CITATION] (West 2022). Before the State may overcome that presumption,
the State must prove multiple elements by clear and convincing evidence. One is to prove “the
defendant poses a real and present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the case.” Id. §§ [CITATION]. For this
element, the Code gives the trial court broad discretion in choosing what factors to consider. See
id. § [CITATION] (setting forth factors a trial court may consider when considering
dangerousness). These factors include the nature and circumstances of the offense charged (id.
§ [CITATION]), the defendant’s history and characteristics, including whether there is evidence
of violent, abusive or assaultive behavior (id. § [CITATION]), and whether the defendant is
known to possess or have access to any weapon (id. § [CITATION]). Defendant does not
challenge the determination he poses a threat to the community and the police.
¶ 20 In addition, before pretrial release may be denied under the dangerousness
standard, subsection (e)(3)(i) of the Code requires the State prove “no condition or combination
of conditions set forth in subsection (b) of Section 110-10 of this Article can mitigate *** the
real and present threat to the safety of any person or persons or the community, based on the
specific articulable facts of the case.” Id. § 110-6.1(e)(3)(i). In its detention order, the trial court
must “make a written finding summarizing the court’s reasons for concluding that the defendant
should be denied pretrial release, including why less restrictive conditions would not avoid a real
and present threat *** based on the specific articulable facts of the case.” Id. § (h)(1). We are
mindful trial-court decisions and findings related to pretrial detention are reviewed for an abuse
of discretion. [CITATION], ¶ 35. This court will find an abuse
of discretion if we conclude the trial court’s decision is unreasonable, arbitrary, or fanciful or we
[SEGMENT 6]
find no reasonable person would agree with that decision. [CITATION], ¶ 10.
¶ 21 First, we find unpersuasive the argument the State did not prove this element
based on the fact it did not argue or present evidence no conditions or combination of conditions
could mitigate defendant’s threat. Proof of the dangerousness standard does not require the State
to argue the no-conditions element is satisfied. The Code requires the State to prove the
no-conditions element “by clear and convincing evidence.” 720 ILCS 5/110-6.1(e)(3)(i) (West
2022). As shown below, the State proffered and presented evidence relevant to this element.
¶ 22 Next, we find no abuse of discretion in the trial court’s conclusion the
no-conditions element was sufficiently proved. The State’s proffer and testimony by Officer
Ward shows defendant’s disregard for authority and gives support to the conclusion defendant
would not abide by conditions of release. The proffer and testimony further shows if defendant
did not comply and an arrest would be necessary, the lives of police officers would be
endangered. The circumstances of the offenses establish defendant possessed a weapon and for
minutes disregarded police orders in a public place. Defendant had done so after driving
recklessly and brandishing a weapon and threatening an officer attempting to stop his reckless
behavior. The record supports the court’s finding defendant was not credible about his lack of a
drug or alcohol problem given the record shows he had a DUI conviction, albeit this was an older
offense, and he was in possession of a Class 1 felony amount of methamphetamine and was
driving erratically. Moreover, the issue of whether defendant had a residence, when, despite
saying he was staying in the home of his father who recently died or his cousin, he rented a hotel
room at Par-A-Dice, further undermines a conclusion he could be confined at home or monitored
by GPS monitoring.
¶ 23 We are not convinced the trial court needed to address the decision of the Peoria
County court. The charges for the offenses were different and were based on distinct conduct.
When the Peoria County charges were made and that petition for pretrial detention was
considered, the Tazewell County charges had not yet been filed. Each court is given broad
discretion in how to weigh the statutory factors and rule on the issues before it. The court’s
decision finding the conditions element proved is not “ ‘arbitrary, fanciful, or unreasonable.’ ”
[CITATION], ¶ 10.
¶ 24 Defendant next argues the State failed to prove by clear and convincing evidence
he posed a risk of willful flight.
¶ 25 We need not consider this argument on appeal. A defendant may be detained
based on clear and convincing proof of dangerousness or willful flight. Compare 725 ILCS
5/110-6.1(a)(1)-(7) (West 2022) with id. § 110-6.1(a)(8). Given we have found no abuse of
discretion in the trial court’s decision detaining defendant on dangerousness grounds, we need
not determine whether there was error on the willful-flight ground.
¶ 26 Last, defendant contends, under the doctrine of collateral estoppel, the State was
barred from seeking detention in Tazewell County after the Peoria County court released him
under the same circumstances. The State counters this court lacks jurisdiction to consider the
error. The State maintains Illinois Supreme Court Rule 604(h)(1) (eff. Dec. 7, 2023) only allows
interlocutory appeals of orders entered under section 110-5, 110-6, and 110-6.1 of the Code and
the order denying defendant’s motion to dismiss does not fall within that rule’s provisions.
¶ 27 Rule 604(h)(1) grants appellate courts jurisdiction over “an interlocutory order of
court entered under sections 110-5, 110-6, and 110-6.1 of the Code.” Id. The rule authorizes an
appeal “by the defendant from an order denying pretrial release.” Ill. S. Ct. R. 604(h)(1)(iii) (eff.
Dec. 7, 2023).
¶ 28 Here, on his notice of appeal, defendant checked the box indicating he appeals the
order denying his pretrial release. While defendant seeks a reversal of the trial court’s order
denying his motion to dismiss, defendant also seeks a reversal of the detention order—the latter
of which falls within the plain language of Rule 604(h)(1)(iii) (id.). We have jurisdiction over the
question of whether that detention order was properly granted. The propriety of that order turns,
in part, on the applicability of the doctrine of collateral estoppel. Defendant’s notice of appeal is
timely and contains some argument the State is estopped from making a second attempt at
denying him pretrial release. We find, therefore, we have jurisdiction under Rule 604(h)(1)(iii) to
consider defendant’s collateral-estoppel argument.
¶ 29 As to whether collateral estoppel bars the State from seeking defendant’s
detention in Tazewell County after the State’s first attempt failed in Peoria County, our review is
de novo. See [CITATION]. We find persuasive our decision in [CITATION]. In
[CITATION], the defendant argued “collateral estoppel barred the State from taking the
- 10 - position, in the Boone County circuit court, that the Winnebago County DUI was detainable,” as
“ ‘the identical issue had been fully litigated by the State and a final judgment on the merits had
been rendered’ in Winnebago County.” Id. ¶ 39. This court emphasized the well-established
principle a judgment is not final for collateral-estoppel purposes until the possibility of appellate
review is exhausted. Id. ¶ 40 (quoting [CITATION]). Because, in that case, the potential for appellate review had not been
exhausted on the Winnebago County matter, that decision was not a final judgment and,
therefore, not a bar to the Boone County decision. Id.
¶ 30 Like in [CITATION], the issue of defendant’s pretrial detention was not a final
judgment in Peoria County when the Tazewell County court ordered defendant detained. The
State had 14 days to appeal the Peoria County decision denying its March 19, 2024, verified
petition. See Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023)). Fourteen days had not passed when the
Tazewell County court, nine days after the Peoria County court denied the State’s petition to
deny defendant pretrial release, granted the State’s petition. There was no final judgment for
collateral-estoppel purposes. Collateral estoppel does not apply.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the trial court’s judgment.
¶ 33 Affirmed.
- 11 -
```plaintext
2024 IL App (1st) 240837-U
No. 1-24-0837B
Order filed July 18, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 24110195701
)
SAMMIE M. DANIELS ) The Honorable
) Maryam Ahmad,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Presiding Justice Oden Johnson and Justice Tailor concurred in the judgment.
ORDER
¶1 Held: Affirmed. The record supports the trial court’s denial of pretrial release.
¶2 Context shapes how we see and understand facts. That Sammie Daniels had felony
convictions while armed did not, alone, prove him a “real and present threat” to others under article
110 of the Code of Criminal Procedure of 1963 (Code) ([CITATION]), as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act.
What did, however, were his early-morning choices to load the gun and drink liquor while blaring
``` No. 1-24-0837B
music from the driver’s seat of a car. We affirm because the facts alleged in this context support
the denial of pretrial release.
¶3 Background
¶4 The State petitioned to detain Sammie Daniels before trial ([CITATION]), having charged him with several offenses, including aggravated unlawful use of a weapon ([CITATION]).
¶5 At a hearing, the State proffered how officers investigating a “noise disturbance” around
4:00 a.m. saw a black car playing “loud music” in front of a home. Sammie Daniels was in the
driver’s seat, holding a cup of liquor. At their command, he got out, reached for an ID, and exposed
an apparent gun at his waist. The officers patted him down and found a semiautomatic firearm
[SEGMENT 7]
with live rounds in the magazine and chamber.
¶6 Daniels proffered that he is 39 years old, a lifelong Cook County resident, and the father
of four children, one of whom he primarily raises. He works full-time as a dispatcher for a trucking
company and has lived with a sibling at his current address for six years.
¶7 Pretrial Services calculated Daniels’ “new criminal activity” and “failure to appear” scores
as threes (out of sixes) and recommended pretrial supervision, not detention. Daniels’ criminal
history included convictions for conspiracy to commit murder (around age 18) and obstruction of
justice (around age 30). He last completed mandatory supervised release five years ago.
¶8 The trial court found the State carried its burden to prove Daniels should be detained as a
real and present threat to the community. First, the proof was evident or presumption great that
Daniels committed the detainable offense of aggravated unlawful use of a weapon. The proffer
showed Daniels had felony convictions yet possessed a loaded firearm at his waist while drinking
No. 1-24-0837B
in the driver’s seat of a car reported for noise. Second, Daniels was a real and present threat, given
the way he carried the gun that morning—“un-cased, loaded, and immediately accessible.” Finally,
no condition short of pretrial detention would suffice, given Daniels’ proven access to firearms
and his knowing possession despite laws barring him from doing so.
¶9 Daniels raises two challenges to the trial court’s finding that he presented a real and present
threat to the community.
¶ 10 Analysis
¶ 11 Daniels seeks pretrial release with conditions, raising related claims: (i) the State failed to
proffer specific and articulable facts showing that he is a real and present threat to the safety of the
community, and (ii) the trial court “failed to make an individual assessment” of the alleged threat
that he poses. We disagree.
¶ 12 Generally, the State may seek to detain someone by charging an offense eligible for
detention and then proving three elements. First, the proof is evident or the presumption great that
the defendant committed the detention-eligible offense. Second, the defendant poses a real and
present threat to the safety of the community based on the specific articulable facts. Third, no
condition or combination of conditions can mitigate that real and present threat. 725 ILCS 5/110-
6.1(e) (West 2022).
¶ 13 Of these elements, Daniels contends the State and trial court conflated the first (proof of
his nonviolent offense) with the second (proof of his real and present threat). In his view, the State
proffered that he only “was in possession of a weapon while * * * previously *** convicted of a
felony.” Likewise, the trial court found he “was both a convicted felon[] and in possession of a
```plaintext
No. 1-24-0837B
weapon.” He contends “this matter is more akin to simple gun possession,” and thus, this court
should order his release with conditions.
¶ 14 Several standards guide our analysis. To begin, the State must present clear and convincing
evidence: a “quantum of proof that leaves no reasonable doubt in the mind of the fact finder about
the truth of the proposition in question.” (Internal quotation marks omitted.) [CITATION], ¶ 12. Aside from the State’s burden, we review the trial court’s order under
a bifurcated standard of review. [CITATION], ¶ 13. But see [CITATION], (canvassing appellate court split on standard of
review), appeal allowed, No. 130626, 2024 WL 2978293 (Ill. Jun. 11, 2024). We reverse findings
against the manifest weight of the evidence and review the trial court’s ultimate decision for an
abuse of discretion. [CITATION], ¶ 13.
¶ 15 We reject Daniels’ contentions as ignoring pertinent parts of the record—the context
shaping the facts of his gun possession. Daniels’ analysis fails to acknowledge the proffered facts
describing (i) the manner of his firearm possession and (ii) the lead-up to the officers’ search and
seizure.
¶ 16 The State carried its burden of proof. [CITATION], ¶ 12. Liquor,
a loaded gun, and a steering wheel are a menacing mix—a real and present threat—even before
one adds in the law’s prohibition on Daniels possessing a firearm. See, e.g., [CITATION] (describing purpose of drunk-driving statutes as “keeping intoxicated
drivers out of their vehicles”); [CITATION], ¶ 16 (observing,
AUUW and UUW statutes were enacted for same purpose of protecting police and public from
dangerous weapons).
``` No. 1-24-0837B
¶ 17 For similar reasons, we reject Daniels’ contention that the trial court’s “logic” was
somehow flawed. Of course, bare allegations about the crime are relevant but insufficient to satisfy
proof that Daniels presented a real and present threat. [CITATION]
¶¶ 17-18. The trial court properly focused on the way Daniels carried the firearm—“un-cased,
loaded, and immediately accessible”—and noted how the gun was at his waist. Doing so cohered
with the manifest of the evidence, and ordering Daniels detained was no abuse of discretion.
[CITATION], ¶ 13.
¶ 18 Conclusion
¶ 19 The context of Daniels’ alleged offense proved him to be a real and present threat to the
community.
¶ 20 Affirmed.
2024 IL App (4th) 220692-U
NOTICE FILED
This Order was filed under July 9, 2024
Supreme Court Rule 23 and is NOS. 4-22-0692, 4-23-0194 cons.
Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
DONTEL DEON CROWDER, ) Nos. 18CF1258
Defendant-Appellant. )
CF46
)
) Honorable
) William A. Yoder,
) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court.
Presiding Justice Cavanagh and Justice Harris concurred in the judgment.
ORDER
¶1 Held: (1) The circuit court did not err in granting the State’s motion to dismiss
defendant’s petition for relief from judgment due to untimeliness.
(2) The circuit court did not err in summarily dismissing defendant’s
postconviction petition as frivolous or patently without merit because defendant
failed to set forth the gist of a constitutional claim that was not completely
contradicted by the record.
¶2 Defendant, Dontel Deon Crowder, appeals the circuit court’s dismissal of his
(1) section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2022)) in McLean
County case No. 18-CF-1258 and (2) postconviction petition pursuant to the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2022)) in McLean County case No. 19-CF-46. This
court granted defendant’s motion to consolidate the two cases on appeal. In case No. 18-CF-1258, the circuit court granted the State’s motion to dismiss defendant’s section 2-1401 petition, finding
the petition was untimely and failed to provide any legal basis for relief. The court summarily
dismissed defendant’s postconviction petition in case No. 19-CF-46, finding it “frivolous and
patently without merit and fail[ed] to present the gist of a constitutional claim.” On appeal,
defendant argues the court erred in dismissing his petitions. We affirm.
¶3 I. BACKGROUND
¶4 In December 2018, defendant was charged in case No. 18-CF-1258 with aggravated
domestic battery (720 ILCS 5/12-3.3(a-5) (West 2018)) (count I) and domestic battery (id.
§ 5/12-3.2(a)(1)) (count II). Following defendant’s arrest, the victim, J.S., obtained an order of
protection against defendant. One month later, defendant was charged in case No. 19-CF-46 with
violating said order of protection. (id. § 5/12-3.4(a)(1)).
¶5 Pursuant to a partially negotiated plea agreement, defendant pled guilty to count II
in case No. 18-CF-1258 and violation of an order of protection in case No. 19-CF-46. In exchange
for defendant’s plea, the State dismissed count I in case No. 18-CF-1258, along with a petition to
revoke probation in an unrelated case. On October 11, 2019, the circuit court sentenced defendant
[SEGMENT 8]
to 30 months of drug court probation. Defendant did not file any posttrial motions after his
sentencing.
¶6 The State filed a petition to revoke defendant’s probation in January 2022. While
the petition was pending, defendant filed a “1401 Petition to Withdraw Guilty Plea and Vacate
Sentence” in case No. 18-CF-1258 and a “Petition to Withdraw Guilty Plea Pursuant to 725 ILCS
5/122-1 A/K/A the Post-Conviction Hearing Act” in case No. 19-CF-46.
¶7 A. Section 2-1401 Petition for Relief From Judgment
¶8 Defendant filed his section 2-1401 petition for relief from judgment in May 2022.
His petition alleged: (1) he received ineffective assistance of counsel because his trial counsel
failed to properly investigate the charges against him and (2) the State failed to turn over all the
evidence against him. In support of his arguments, defendant described an incident from December
8, 2018, the day before he was arrested for aggravated domestic battery against J.S. On December
8, officers responded to defendant’s residence to investigate a possible domestic battery in which
defendant was the aggressor and J.S. was the victim. The officers made no arrests and one officer’s
report expressed doubt as to whether a domestic battery occurred. Defendant alleged the State
failed to turn over a copy of this report as part of discovery and his trial counsel failed to investigate
the December 8 incident. Defendant claimed this report demonstrated J.S. had “substantial
credibility issues.” The petition also described the events leading to his arrest in case No.
18-CF-1258. On December 9, 2018, officers responded to defendant’s residence after receiving a
911 call about a female screaming. When officers entered the residence, J.S. reported defendant
bit and choked her, causing her to have a seizure. Defendant’s brother, Laron Crowder, told police
he was present during the incident and corroborated J.S.’s version of events. The December 9
police report included photographs of J.S.’s injuries. Defendant alleged these photographs
demonstrated J.S. had no injuries and no domestic battery occurred.
¶9 The section 2-1401 petition conceded defendant failed to file his petition within the
two-year statute of limitations. See 735 ILCS 5/2-1401(c) (West 2022). However, defendant
asserted his petition was not untimely due to fraudulent concealment by his trial counsel.
Specifically, defendant stated, “had his previous counsel not fraudulent [sic] represented that he
had reviewed all the evidence for and against [defendant]; or had not fraudulently withheld
favorable evidence in favor of [defendant]; [defendant], or his counsel would have been alerted to
the mistakes before the guilty plea was entered.”
¶ 10 Attached to defendant’s petition were: a McLean County incident report from
December 9 (exhibit A); photographs of J.S. from December 9 (exhibits B-E); a copy of detective
Jesse Lanphear’s deposition in McLean County case No. 20-L-173 (exhibit F); and a McLean
County incident report from December 8 (exhibit G).
¶ 11 After being properly served with defendant’s section 2-1401 petition, the State filed
a motion to dismiss, asserting: (1) defendant’s petition was untimely and (2) even if the circuit
court excused the untimeliness, a section 2-1401 petition was not the proper avenue for ineffective
assistance of counsel claims. In support of its untimeliness argument, the State asserted defendant
failed to prove “any information was ‘fraudulently concealed,’ ” which is necessary to toll the two-
year statute of limitations. According to the State, defendant’s petition failed to (1) demonstrate
the State attempted to prevent him from discovering the materials, (2) offer any facts showing
defendant acted in good faith and with reasonable diligence to discover the materials and bring his
claim within the statute of limitations, and (3) present any evidence demonstrating the materials
would have affected the outcome of defendant’s case. Moreover, the State contended defendant
had the materials in his possession in April 2021, which was within the statute of limitations;
however, defendant failed to file his petition until May 2022.
¶ 12 One month after the State filed its motion to dismiss, defendant filed a response. In
his response, defendant argued the State failed to turn over the December 8 report and December
9 photographs as part of discovery in case No. 18-CF-1258. According to defendant, this failure
constituted a Brady violation ([CITATION]) and thus qualified as
fraudulent concealment. Therefore, the two-year statute of limitations was tolled and defendant’s
petition was timely filed. Defendant then conceded his ineffective assistance claim could be
stricken but requested the circuit court “not prevent [him] from discussing the actions or inactions
of his trial counsel.” In support of this request, defendant argued the actions of his trial counsel
were directly related to “the fraudulent concealment; possible Brady violations; trial strategy; and
plea negotiations.”
¶ 13 In October 2022, the State filed a reply to defendant’s response. In its reply, the
State asserted defendant received a copy of the December 9 photographs as part of discovery in
case No. 18-CF-1258. Attached to the reply were documents confirming the December 9
photographs were provided to trial counsel as part of discovery. Additionally, the State argued the
December 8 report was not Brady material because the result of the proceedings would not have
changed if defendant received a copy of it. Unlike the events on December 8, there was an
independent eyewitness present on December 9 who corroborated J.S.’s version of events.
Therefore, the December 8 report in which the officer doubted J.S.’s credibility would have little
weight as to defendant’s charges from December 9.
¶ 14 Defendant then filed a motion requesting leave to file a supplemental response to
the State’s reply. A copy of defendant’s supplemental response was attached to the motion as
exhibit A. However, the record is devoid of any order granting defendant’s motion for leave to file.
¶ 15 In January 2023, the circuit court granted the State’s motion to dismiss defendant’s
section 2-1401 petition. In its written order, the court differentiated between the well-pleaded facts
and arguments/opinions in defendant’s petition. The court listed the following as
arguments/opinions:
“a. [Defendant] received ineffective assistance of counsel in this case and
thus his rights under both the United States and the State of Illinois were violated.
b. Had [defendant’s] previous attorney properly investigated this matter,
they would have noticed there was no physical evidence and that [J.S.] had
substantial credibility issues;
c. ‘[Defendant] avers had his previous counsel not fraudulent [sic]
represented that he had reviewed all the evidence for and against [defendant]; or
had not fraudulently withheld favorable evidence in favor of [defendant];
[defendant], or his counsel would have been alerted to the mistakes before the guilty
plea was entered.’ ”
The order then addressed the timeliness of defendant’s petition, finding it was undisputed
defendant failed to file the petition within the two-year statute of limitations and defendant’s
counsel obtained the “relevant materials” within the statute of limitations. It then determined
defendant failed to meet his burden in proving “fraudulent concealment of discoverable materials
by the State which would have prevented [defendant] from bringing this action in a timely
fashion.” The court also found defendant’s ineffective assistance of counsel claim was not an
applicable basis for relief in a section 2-1401 petition.
¶ 16 B. Postconviction Petition
¶ 17 Defendant also filed a postconviction petition in case No. 19-CF-46 in May 2022.
The postconviction petition alleged defendant’s constitutional rights were violated when (1) the
State utilized the more serious felonies in case No. 18-CF-1258 to convince defendant to plead
guilty to lesser charges, (2) his trial counsel provided ineffective assistance by failing to properly
investigate the charges against him, and (3) the State failed to turn over all the evidence against
him. In support of his allegations, defendant provided a factual summary of his arrest in case No.
18-CF-1258, which appears to be verbatim from his section 2-1401 petition. Defendant then stated
he was arrested for the violation of an order of protection charge in case No. 19-CF-46 while
awaiting trial on the charges in case No. 18-CF-1258. Although defendant was charged with
violation of an order of protection, defendant asserted the evidence demonstrated “[t]he
investigating officer *** was never able to establish [defendant] was the person actually making
the calls; and it does not appear the alleged victim wanted to pursue charges.”
¶ 18 Attached to defendant’s postconviction petition were the same exhibits attached to
his section 2-1401 petition, with the addition of a McLean County incident report from January
11, 2019 (exhibit H).
¶ 19 On August 5, 2022, the circuit court summarily dismissed defendant’s petition as
frivolous and patently without merit. In its written order, the court outlined the grounds for relief
[SEGMENT 9]
raised in defendant’s petition:
“A. That there was insufficient evidence to convict.
B. That the State used more serious felonies it charged against [defendant],
to obtain guilty pleas for lesser charges.
C. That [defendant] received ineffective assistance of counsel in that if [his]
previous attorney properly investigated this matter, they would have noticed there
was no physical evidence; that [J.S.] had substantial credibility issues; that the
Order of Protection was wholly without merit; and that the Bloomington Police
Department closed the file without making a positive identification of [him].
D. In the alternative, had the State turned over all the evidence against and
for [defendant], [he] would have noticed there was no physical evidence; that [J.S.]
had substantial credibility issues; that the Order of Protection was wholly without
merit; and that the Bloomington Police Department closed the file without making
a positive identification of [him].”
After noting the alleged grounds for relief, the court found issues A and B failed to set forth the
gist of a constitutional claim. With respect to claims C and D, the court stated, “Issues C and D in
[defendant’s] Post Conviction Petition allege in one way or another, ineffective assistance of
counsel.” It then analyzed those claims under the standard set forth in [CITATION],
and found defendant’s claims either waived by his guilty plea or insufficient
to establish ineffective assistance of counsel. The court’s written order did not address defendant’s
claim that the State failed to turn over all the evidence against him.
¶ 20 Defendant timely appealed the dismissal of both his petitions.
¶ 21 This appeal follows.
¶ 22 II. ANALYSIS
¶ 23 Defendant appeals the circuit court’s dismissal of both his petitions. In case No.
18-CF-1258, defendant asserted the court erred in granting the State’s motion to dismiss his section
2-1401 petition because his petition was timely filed due to the tolling of the statute of limitations
based on the acts of fraudulent concealment by the State and his trial counsel. In case No. 19-CF-
46, defendant contends the court erred in summarily dismissing his postconviction petition because
his petition set forth the gist of a constitutional claim. We address each argument in turn.
¶ 24 A. Section 2-1401 Petition in Case No. 18-CF-1258
¶ 25
. Section 2-1401 Petitions, Generally
¶ 26 The purpose of a section 2-1401 petition for relief from judgment is “to bring before
the trial court facts not appearing in the record that, if known at the time the court entered judgment,
would have prevented the judgment’s entry.” [CITATION].
To obtain relief under section 2-1401, a defendant’s petition must include
“ ‘specific factual allegations showing (1) the existence of a meritorious claim or
defense in the original action; (2) due diligence in presenting the claim or defense
to the court in the original action; and (3) due diligence in filing the section 2-1401
petition.’ ” [CITATION] (quoting [CITATION]).
A section 2-1401 petition “must be filed not later than 2 years after the entry of the order or
judgment.” 735 ILCS 5/2-1401(c) (West 2022)). However, “[t]ime during which the person
seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed
shall be excluded in computing the period of 2 years.” Id. This court reviews the circuit court’s
dismissal of a section 2-1401 petition de novo. [CITATION].
“[D]e novo review means that ‘[w]e perform the same analysis that a trial court would, and we
owe no deference to the trial court.’ ” [CITATION] (quoting [CITATION]).
¶ 27
. Defendant’s Section 2-1401 Petition
¶ 28 In this case, the circuit court granted the State’s motion to dismiss defendant’s
section 2-1401 petition based on timeliness. Defendant filed his petition in May 2022, almost three
years after judgment was entered against him in October 2019. The court determined defendant
failed to present sufficient evidence of fraudulent concealment necessary to toll the two-year
statute of limitations. On appeal, defendant challenges the court’s untimeliness finding. According
to defendant, the State and his trial counsel fraudulently concealed materials from him, which he
did not discover until “at least April 2021.” Therefore, the statute of limitations was tolled until
April 2021 and his petition was timely filed.
¶ 29 To prove fraudulent concealment, “the defendant must ‘allege facts demonstrating
that his opponent affirmatively attempted to prevent the discovery of the purported grounds for
relief and must offer factual allegations demonstrating his good faith and reasonable diligence in
trying to uncover such matters before trial or within the limitations period.’ ” (Emphasis added.)
[CITATION] (quoting [CITATION]). Furthermore, “[f]raudulent concealment under section 2-1401(c) which will toll
the two-year limitation period contemplates affirmative actions by one’s opponent or by the court,
not one’s own attorney.” (Emphasis added.) [CITATION].
¶ 30 On appeal, defendant argues the two-year statute of limitations was tolled because
the State and his trial attorney withheld the December 8 report and December 9 photographs.
However, defendant’s section 2-1401 petition, when addressing fraudulent concealment, makes
no mention of fraudulent concealment by the State. The petition only alleges his trial counsel
“fraudulently withheld favorable evidence,” and thus the two-year statute of limitations “is not
applicable.” It is well-established fraudulent concealment only applies to actions by an opponent
or the court, not a defendant’s attorney. See [CITATION], ¶ 17.
For this reason alone, defendant’s section 2-1401 petition fails to set forth an adequate basis for
fraudulent concealment. However, defendant attempts to argue on appeal there can be fraudulent
concealment by one’s own attorney. We find defendant’s argument unpersuasive.
¶ 31 Nevertheless, even if we found defendant’s argument persuasive, defendant still
failed to properly plead fraudulent concealment because he did not offer any evidence regarding
any specific affirmative acts his trial counsel took to prevent him from discovering the December
8 report and December 9 photographs. Additionally, defendant did not plead any facts
demonstrating his good faith and diligence in discovering these materials. Because defendant
failed to adequately plead fraudulent concealment, the circuit court properly dismissed his section
2-1401 petition as untimely.
- 10 - ¶ 32 B. Postconviction Petition in Case No. 19-CF-46
¶ 33
. First-Stage Postconviction Proceedings
¶ 34 Proceedings under the Post-Conviction Hearing Act have three stages. [CITATION], ¶ 21. “At the first stage, the circuit court must review the petition within
90 days of its filing and determine whether the petition states the gist of a constitutional violation.”
[CITATION], ¶ 18. If the court determines the petition does not present the
gist of constitutional claim, it must summarily dismiss the petition as frivolous or patently without
merit. [CITATION], ¶ 9. A petition is considered frivolous or patently
without merit when
“the petition has no arguable basis either in law or in fact. A petition which lacks
an arguable basis either in law or in fact is one which is based on an indisputably
meritless legal theory or a fanciful factual allegation. An example of an indisputably
meritless legal theory is one which is completely contradicted by the record.”
[CITATION].
We review the circuit court’s summary dismissal of a postconviction petition de novo. [CITATION], ¶ 61.
¶ 35
. Defendant’s Postconviction Petition
¶ 36 Defendant argues the circuit court erred in summarily dismissing his postconviction
petition because he set forth the gist of a constitutional claim on the grounds of ineffective
assistance of counsel and the State’s violation of Brady. Additionally, defendant contends his
petition set forth a colorable claim of actual innocence. We address each of defendant’s arguments
in turn.
¶ 37 a. Ineffective Assistance of Counsel
- 11 - ¶ 38 Defendant alleges his postconviction petition properly set forth a claim of
ineffective assistance of counsel. In his petition, defendant alleged his trial counsel failed to
properly investigate the charges against him before he pleaded guilty. Because of his trial counsel’s
failure to investigate, his counsel failed to discover the January 2019 police report, which indicated
the officer was unable to get in contact with J.S. to have her identify defendant’s voice on the
recorded phone calls. According to defendant, this failure arguably constituted ineffective
assistance of counsel.
¶ 39 Even assuming, arguendo, defendant’s petition established his trial counsel’s
failure to discover the January 2019 report, the record completely contradicts defendant’s claim
he was prejudiced by this failure. At the hearing where the circuit court accepted defendant’s guilty
plea, the State proffered the investigating officer heard defendant’s and J.S.’s voices on 12
recorded phone calls. Moreover, the officer would testify to his familiarity with their voices.
Defendant acknowledged this factual basis before entering his guilty plea. The State had sufficient
[SEGMENT 10]
evidence to convict defendant of violation of an order of protection without testimony from J.S.
The factual basis established there was a valid order of protection in place and defendant placed
12 recorded calls to J.S., a protected party under the order of protection. The investigating officer
would identify the voices of defendant and J.S. on the recorded phone calls, based on his familiarity
with them. Therefore, even if J.S. did not identify defendant’s voice on the recorded phone calls,
defendant was not prejudiced by the lack of J.S.’s testimony, because the officer could identify the
voices. Because the record contradicts defendant’s claim of prejudice, the court properly dismissed
defendant’s ineffective assistance of counsel claim as frivolous and patently without merit.
¶ 40 b. Brady Claim
- 12 - ¶ 41 Defendant next argues his postconviction petition properly set forth a claim the
State violated Brady by failing to turn over the January 2019 police report.
¶ 42 “In Brady, the Supreme Court held that the prosecution violates an accused’s
constitutional right to due process of law by failing to disclose evidence favorable to the accused
and material to guilt or punishment.” [CITATION].
“A Brady claim requires a showing that: (1) the undisclosed evidence is favorable
to the accused because it is either exculpatory or impeaching; (2) the evidence was
suppressed by the State either wilfully or inadvertently; and (3) the accused was
prejudiced because the evidence is material to guilt or punishment.” Id. at 73-74.
¶ 43 Defendant’s Brady claim fails for the same reason as his ineffective assistance of
counsel claim. Namely, the record rebuts defendant’s claim of prejudice. Even taking defendant’s
allegation that the State withheld the January 2019 police report as true, the record demonstrates
he was not prejudiced. See [CITATION], ¶ 45 (“At the pleading stage of
postconviction proceedings, all well-pleaded allegations in the petition and supporting affidavits
that are not positively rebutted by the trial record are to be taken as true.”). As discussed above,
the January 2019 police report simply established J.S. had not identified defendant’s voice on the
recorded phone calls. Defendant was not prejudiced by the State failing to turn over the report
because this lack of identification by J.S. was not an impediment to the charges against him. The
State had sufficient evidence to convict him without it. Because the record completely rebuts
defendant’s claim of prejudice, the circuit court properly dismissed defendant’s Brady claim as
frivolous and patently without merit.
¶ 44 c. Actual Innocence Claim
- 13 - ¶ 45 Lastly, defendant argues his postconviction petition set forth a colorable claim of
actual innocence. Defendant asserts the January 2019 police report was new evidence “not
available before Defendant entered his guilty plea and it directly negates the State’s claim that it
had confirmed Defendant made the calls.”
¶ 46 An actual innocence claim requires a defendant provide “new, material,
noncumulative evidence that clearly and convincingly demonstrates that a trial would probably
result in acquittal” [CITATION]. In [CITATION], our
supreme court, in determining whether a defendant set forth a colorable claim of actual innocence
in his postconviction petition, considered whether defendant had “raised the probability that it is
more likely than not that no reasonable juror would have convicted him in light of the new
evidence.”
¶ 47 In this case, defendant’s postconviction petition failed to set forth a colorable claim
of actual innocence. The January 2019 police report does not make it more likely than not
defendant would have been acquitted at trial. Even if J.S. refused to cooperate and did not testify
at defendant’s trial, the State had another independent witness who was able to identify the voices
of defendant and J.S. on the 12 recorded phone calls. The testimony of this witness, coupled with
proof of the valid order of protection, was sufficient to convict defendant of violation of an order
of protection. For this reason, the circuit court properly dismissed defendant’s actual innocence
claim as frivolous and patently without merit.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, the McLean County circuit court’s judgments in case No.
18-CF-1258 and case No. 19-CF-46 are affirmed.
¶ 50 Affirmed.
- 14 -
NOTICE
IL App (5th) 240520-U
NOTICE
Decision filed 07/03/24. The
This order was filed under
text of this decision may be NO. 5-24-0520 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Vermilion County.
)
v. ) No. 24-CM-167
)
JACOLBY BATES, ) Honorable
) Robert E. McIntire,
Defendant-Appellee. ) Judge, presiding.
______________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court.
Presiding Justice Vaughan and Justice McHaney concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s order imposing conditions of release where the overall
determination regarding conditions of pretrial release was not an abuse of
discretion, but remand with directions for the circuit court to enter written findings
regarding the imposition of electronic monitoring.
¶2 The State appeals the March 26, 2024, order of the circuit court of Vermilion County 1 that
set conditions for the defendant’s pretrial release pursuant to the Safety, Accountability, Fairness,
and Equity-Today (SAFE-T) Act (Act), 2 as codified in article 110 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)). See Pub. Acts 101-652, § 10-255,
The common law record and the appellant’s brief indicate that the trial judge/hearing officer was
the Honorable Derek Girton; however, the record of proceedings, the notice of appeal, and the appellee’s
brief state that the detention hearing was conducted by the Honorable Robert E. McIntire.
“The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither
name is official, as neither appears in the Illinois Compiled Statutes or public act.” [CITATION].
102-1104, § 70 (eff. Jan. 1, 2023); [CITATION] ¶ 52 (lifting stay and setting
effective date of Act as September 18, 2023). On appeal, the State argues that the circuit court
abused its discretion in granting the defendant pretrial release since the State had met its burden,
by clear and convincing evidence, that the defendant should be detained. For the following reasons,
we affirm the order of the circuit court of Vermilion County, but remand with directions for the
circuit court to enter written findings regarding the imposition of electronic monitoring.
¶3 I. BACKGROUND
¶4 On March 15, 2024, the defendant was charged by information with one count of domestic
battery/bodily harm in violation of section 12-3.2(a)(1) of the Criminal Code of 2012 (Code) (720
ILCS 5/12-3.2(a)(1) (West 2022)) and one count of domestic battery/physical contact in violation
of section 12-3.2(a)(2) of the Code (id. § 12-3.2(a)(2)). The charges alleged that on March 5, 2024,
the defendant caused bodily harm to K.W., a nine-year-old minor who was a household member,
in that the defendant struck the minor about the body with a belt causing visible injury. The
information also stated that the defendant had been previously convicted of domestic battery in
Vermilion County case No. 20-CM-135.
¶5 On March 18, 2024, the State filed a verified petition to deny the defendant pretrial release.
The circuit court conducted a hearing on March 25, 2024, which was continued at the request of
the defendant, until March 26, 2024. At the hearing on March 26, 2024, the State proffered that on
March 5, 2024, law enforcement officials became aware of a situation involving K.W., a minor.
K.W. had been disciplined at school for some behavior, and the next day, he returned to school
with visible injuries. The injuries included a swelling of his left eye, a cut on his face, scratches to
his left arm, and scratches and marks on his back and legs. The minor disclosed that he had been
“whipped by a belt” by his mother and the defendant, who is the minor’s stepfather. The minor
[SEGMENT 11]
stated that they had taken turns holding him down while the other one wielded the belt, and that
he was wearing only his underwear at the time. The State’s proffer further stated that when the
school counselor spoke with the defendant, he stated that he disciplines the kids how he wants to,
and that he would continue to discipline them the way that he wants.
¶6 The State also proffered the defendant’s prior convictions which included battery of a
family or household member, reckless discharge of a firearm, resisting arrest, criminal trespass to
land, criminal damage to property, and burglary. As such, the State requested that the defendant
be detained, or if released, that electric monitoring along with no entry orders be required.
¶7 The defendant stated at the hearing that he and the minor’s mother were not married at the
time of the incident but were married on March 8, 2024. The defendant argued that the minor had
stated that it had happened on only one occasion and that detention would be “going way
overboard.” The defendant also stated that a blind had hit the minor in the face when he was
struggling causing the injury to the minor’s face, and as such, the injury was not from being struck
with a strap. The defendant also argued that the minor’s mother had not been detained, and
therefore, the defendant should not be detained for the exact same incident.
¶8 The circuit court inquired as to any involvement by the Illinois Department of Children
and Family Services (DCFS). The State indicated that it believed that the minor was currently
living between the two homes of his grandparents, and then the circuit court stated as follows:
“Well I’m not sure I’m going to give a lot of credit for [the defendant’s] version of the
situation. I’ll say this. It has occurred to me that I might be able to release [the defendant]
since it also occurred to me that perhaps DCFS had—or law enforcement had taken shelter
care and had made some sort of placement arrangements for this [minor]. Apparently, that’s
not the situation, and I’m concerned about the safety of this young man, now that he has
reported this incident to his school counselors and to law enforcement.”
¶9 The defendant’s counsel stated that it was his belief that the minor was in foster care and
indicated that the minor’s mother was present at the hearing. The following dialog then occurred:
“MOTHER: They are with my mother right now, as we speak.
THE COURT: Okay. And that’s where he’s living?
MOTHER: That’s where he’s at.
THE COURT: Living 24/7.
SPECTATOR: He [is] not at my house like he supposed to be. We’re not sharing
custody. The thing was I did have him, but I work Friday through Monday. So by me
working Friday through Monday, I drop the kids off to her.
THE COURT: And when we’re saying shelter care, is there some sort of court order
there, or is this DCFS?
MOTHER: This is with DCFS.
SPECTATOR: This is with DCFS.
THE COURT: Safety plan or what?
DEFENSE COUNSEL: They are saying with DCFS.”
¶ 10 The State then made an objection, stating that there were a lot of people talking, that the
State was not aware of who the individuals were or what their names were, and that the individuals
were not under oath. The State informed the circuit court that it could not indicate one way or the
other whether there was a DCFS case or any type of case. The circuit court then stated as follows:
“Okay. All right. Well and there’s not always a case. Sometimes it’s, you know, a DCFS
safety plan, which is negotiated within the parties. So here’s what I’m going to do. I’m
going to release [the defendant], but the condition of release is going to be that he has no
contact with this minor, and what that means is that if [the defendant] is going to continue
to live where he’s living, the minor can’t be there. Like I said, I don’t know whether there
is a court order, DCFS safety plan or what, but [the defendant] cannot have any contact
with the minor.”
¶ 11 The State then requested that the circuit court make electric monitoring a condition of the
defendant’s release along with a no entry to the primary residence of minor. The circuit court
declined to enter a no entry order to the primary residence since the circuit court indicated that it
wanted the minor residing elsewhere “24/7.” Regarding electronic monitoring, the circuit court
stated as follows:
“I think I will—I think I will order that. Is there—now apparently, he would know the
address of the other place where the child stays. Basically, I’m going to—I’m going to
order that he not be within 500 feet of the named victim.”
The circuit court then advised the defendant of his appeal rights and adjourned the hearing.
¶ 12 The circuit court entered a written order the same day stating that the defendant was
charged with a detention-eligible offense, but that the circuit court had denied the State’s petition
to detain. The written order also imposed the mandatory conditions of release set forth in section
110-10(a) of the Code ([CITATION]), along with a no contact order with the minor and electronic monitoring. Pursuant to section 110-5(g) and (h) (id. § 110-5(g), (h)), the
circuit court found that no less restrictive condition of release or combination of less restrictive
conditions of release would reasonably ensure the appearance of the defendant for later hearings
or protect an identifiable person or persons from imminent threat of serious physical harm. The
circuit court’s basis for that finding, however, was left blank.
¶ 13 Later the same day, the State filed an emergency motion to modify pretrial release
conditions. The motion stated that the defendant was unable to be released with the terms and
conditions imposed by the circuit court, because an electronic monitoring device could not be
installed with the condition of no contact with the minor since electronic monitoring could track
the movements of the defendant but could not track the defendant in relationship to the minor. The
State’s motion also indicated that the State had contacted DCFS and that DCFS was investigating
the matter; determining the proper residence options for the minor; verified the minor’s school;
and verified the address at which the minor was residing with his maternal grandmother. As such,
the State requested that the circuit court modify the defendant’s pretrial release conditions to a no
contact with the minor, no entry to the minor’s school, and no entry to the residence at which the
minor was staying.
¶ 14 The circuit court granted the State’s emergency motion 3 the same day and entered a written
order directing that the defendant shall not have any direct or indirect contact with the minor, that
the defendant remains 500 feet away from the minor, and that the defendant have no entry to the
minor’s school or current residence. The circuit court’s order also allowed future modification if
DCFS or pretrial services verified a change in the minor’s school or residence. The circuit court’s
written order granting the State’s emergency motion did not contain any mention of electronic
monitoring. On April 9, 2024, the State filed a timely notice of appeal. 4
The record on appeal does not contain a report of proceedings regarding the State’s emergency
motion.
Pursuant to Illinois Supreme Court Rule 604(h)(5) (eff. Dec. 7, 2023), our decision in this case
was due on or before July 1, 2024, absent a finding of good cause for extending the deadline. Based on the
high volume of appeals under the Act currently under the court’s consideration, as well as the complexity
of issues and the lack of precedential authority, we find there to be good cause for extending the deadline.
¶ 15 II. ANALYSIS
¶ 16 On appeal, the only issue raised by the State is whether the circuit court abused its
discretion in releasing the defendant with conditions where the State had proven, by clear and
convincing evidence, that the defendant should be detained pending trial. The State argues that it
had met its burden under the three-pronged analytical framework required under the Code for
detention, i.e., that the defendant was charged with a qualifying offense, that the defendant posed
a real and present threat to the safety of any person or the community, and that less restrictive
conditions would not avoid a real and present threat to the safety of any person or the community.
See [CITATION]. In support of its argument, the State cites to the factors contained in sections
110-6.1 and 110-5 of the Code ([CITATION]), and reiterates the evidence presented at the
hearing as applied to those factors. The State argues that the circuit court abused its discretion in
failing to detain the defendant prior to trial, and requests that this court reverse the circuit court’s
order granting the defendant pretrial release.
¶ 17 Pretrial release, including any conditions related thereto, is governed by the Act as codified
in article 110 of the Code ([CITATION]). A defendant’s pretrial release may be denied only in certain
statutorily limited situations. [CITATION]. After filing a timely verified petition requesting denial
of pretrial release, the State has the burden to prove by clear and convincing evidence (1) that the
proof is evident or the presumption great that the defendant has committed a qualifying offense,
[SEGMENT 12]
(2) that the defendant’s pretrial release poses a real and present threat to the safety of any person
or the community or a flight risk, and (3) that less restrictive conditions would not avoid a real and
present threat to the safety of any person or the community and/or prevent the defendant’s willful
flight from prosecution. [CITATION]. The circuit court may order a defendant detained
pending trial if the defendant is charged with a qualifying offense, and the circuit court concludes
that the defendant poses a real and present threat to the safety of any person or the community ([CITATION].
§ 110-6.1(a)(1)-(7)), or there is a high likelihood of willful flight to avoid prosecution ([CITATION]. § 110-
6.1(a)(8)). If the circuit court determines that the defendant should be denied pretrial release, the
circuit court is required to make written findings summarizing the reasons for denying pretrial
release. [CITATION]. § 110-6.1(h)(1).
¶ 18 If pretrial release is granted, the Act mandates that the circuit court impose certain
conditions that are mandatory and allows other permissive conditions to be imposed. [CITATION]. §§ 110-
5(c), 110-10(a) (mandatory conditions); 110-10(b) (nonexclusive list of permissive conditions).
The conditions of release imposed, however, shall be the least restrictive conditions or combination
of conditions necessary to reasonably ensure the appearance of the defendant as required, or the
safety of any other person or persons or the community. [CITATION]. § 110-5(c).
¶ 19 To set appropriate conditions of pretrial release, the circuit court must determine, by clear
and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the
appearance of a defendant as required or the safety of any other person or the community and the
likelihood of compliance by the defendant with all the conditions of pretrial release.” [CITATION]. § 110-
5(a). In reaching its determination, the circuit court must consider (1) the nature and circumstances
of the offense charged; (2) the weight of the evidence against the person, except that the court may
consider the admissibility of any evidence sought to be excluded; (3) the history and characteristics
of the person; (4) the nature and seriousness of the specific, real, and present threat to any person
that would be posed by the person’s release; and (5) the nature and seriousness of the risk of
obstructing or attempting to obstruct the criminal justice process. [CITATION]. § 110-5(a). Section 110-5
does not require written findings by the circuit court regarding the basis for each of the permissive
conditions imposed, except for the condition of electronic monitoring, which does require the
circuit court to set forth in the record the basis for imposing electronic monitoring. Id. §§ 110-5,
110-5(h).
¶ 20 As noted previously, in this matter, that portion of the circuit court’s written release order
regarding the basis for the circuit court imposing electronic monitoring was left blank. At the
hearing, the circuit court stated:
“I think I will—I think I will order that. Is there—now apparently, he would know the
address of the other place where the child stays. Basically, I’m going to—I’m going to
order that he not be within 500 feet of the named victim.”
The circuit court ordered that the defendant remains 500 feet from the minor, and it appears from
the record that it did so based on the defendant’s knowledge “of the other place where the child
stays.” The circuit court did not state the basis for imposing electronic monitoring and this court
cannot speculate that the above was also the basis for the circuit court’s finding concerning
electronic monitoring. See generally [CITATION], ¶ 36. Therefore, we find that the circuit court erred in failing
to set forth in the record the basis for imposing electronic monitoring.
¶ 21 Our standard of review of pretrial release determinations is twofold. The circuit court’s
factual findings will be reviewed under the manifest weight of the evidence standard. [CITATION], ¶ 13. “A finding is against the manifest weight of the evidence
only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary,
or not based on the evidence presented.” [CITATION]. “Under the manifest weight standard, we give deference to the [circuit] court as the finder of fact because
it is in the best position to observe the conduct and demeanor of the parties and witnesses.” Id. The
circuit court’s ultimate determination regarding pretrial release, however, will not be reversed
absent an abuse of discretion. [CITATION], ¶ 11. An abuse of
discretion occurs when the decision of the circuit court is arbitrary, fanciful, or unreasonable, or
when no reasonable person would agree with the position adopted by the circuit court. Id.
¶ 22 Here, the State repeats the evidence and arguments that it made at the hearing and asks this
court to come to a different conclusion than the circuit court. It is an inherently difficult decision
regarding detention when the safety of a minor is at risk. It is why this court defers to the circuit
court in making such a decision because it is in the best position to observe the conduct and
demeanor of the parties and witnesses. Although this court must consider both the legal adequacy
of the manner in which the circuit court reached its result as well as whether the result is within
the bound of reason, this court will not reweigh the evidence and substitute our judgment for that
of the trier of fact. See [CITATION], ¶ 64. This court has found that the conditions imposed by the circuit court could
not reasonably ensure the safety of any other person or persons or the community; however, we
did so only upon a finding that the conditions imposed were decidedly insufficient to prevent the
defendant from committing further harm based on the specific articulable facts of each case. See
[CITATION], ¶ 21.
¶ 23 In this matter, the circuit court found that the defendant was charged with a detention-
eligible offense and further stated that it was “concerned about the safety of this young man, now
that he has reported this incident to his school counselors and to law enforcement.” The record
demonstrates that the circuit court was aware of the potential harm to the minor if the defendant
was released but determined that the defendant could be released under the conditions set by the
circuit court. The record also reflects that the circuit court was aware of DCFS’s involvement with
the minor.
¶ 24 We have thoroughly reviewed the record on appeal in this matter and, based on our review
of the record, we find that the circuit court’s factual findings regarding the conditions of release
were not against the manifest weight of the evidence. We further find that the circuit court’s
ultimate determination to grant the defendant pretrial release was not arbitrary, fanciful, or
unreasonable, or when no reasonable person would agree with the position adopted by the circuit
court. As such, the circuit court’s release order was not an abuse of discretion. We do, however,
find that the circuit court erred in failing to provide its findings in the record regarding the basis
for imposing electronic monitoring. Therefore, we remand this matter with directions for the circuit
court to modify its release order of March 26, 2024, to include its findings regarding electronic
monitoring as required by section 110-5(h) of the Code (725 ILCS 5/110-5(h) (West 2022)).
¶ 25 III. CONCLUSION
¶ 26 For the foregoing reasons, we affirm the March 26, 2024, order of the circuit court of
Vermilion County, setting conditions for the defendant’s pretrial release, but remand the matter
with directions that the circuit court set forth in the record the basis for imposing electronic
monitoring.
¶ 27 Affirmed and remanded with directions.
NOTICE
IL App (4th) 240599-U
This Order was filed under
FILED
Supreme Court Rule 23 and is July 3, 2024
NO. 4-24-0599
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Winnebago County
FRANK W. WENGER II, ) No. 23CF1421
Defendant-Appellant. )
) Honorable
) Philip J. Nicolosi,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Justice DeArmond and Justice Vancil concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in denying defendant pretrial release.
¶2 Defendant, Frank W. Wenger II, appeals the trial court’s order denying him
pretrial release under section 110-6.1(a) of the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/110-6.1(a) (West 2024)), hereinafter as amended by Public Acts 101-652, § 10-255 and
[SEGMENT 13]
102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act. We affirm.
¶3 I. BACKGROUND
¶4 On June 15, 2023, the State charged defendant with aggravated driving under the
influence of alcohol resulting in death (625 ILCS 5/11-501(a)(2), (d)(1)(F) (West 2022)) and
reckless homicide (720 ILCS 5/9-3(a) (West 2022)). By superseding indictment, defendant was
charged with the original charges as well as four additional charges: aggravated driving with an
alcohol concentration of .08 or more in blood or breath resulting in death (625 ILCS 5/11-501(a)(1), (d)(1)(F) (West 2022)), aggravated driving under the influence of alcohol
resulting in great bodily harm (id. § 11-501(a)(2), (d)(1)(C)), aggravated driving with an alcohol
concentration of .08 or more in blood or breath resulting in great bodily harm (id. § 11-501(a)(1),
(d)(1)(C)), and aggravated reckless driving (id. § 11-503(a)(1), (c)). Bond was set at $200,000,
10% to apply.
¶5 On January 23, 2024, defendant filed a motion for reconsideration of pretrial
release conditions. The motion does not appear in the record. The State responded by filing, on
February 9, 2024, a verified petition to deny defendant pretrial release.
¶6 The detention hearing was held in March 2024. The record reveals the hearing
had begun the week before but was continued when there was a question regarding whether the
petition was adequately verified. The trial court held that it was, and the hearing continued. At
the hearing, the State proffered officers from the Winnebago County Sheriff’s Office were
dispatched on June 14, 2023, for a disorderly subject, defendant, at a bar in Durand, Illinois. At
that bar, defendant drank two beers that he ordered from waitstaff. He then “helped himself to
approximately three shots worth of vodka from behind the bar he himself poured into his beer
glass.” A dispute over defendant’s paying for that alcohol occurred between defendant and the
waitstaff. Defendant left the bar before the officers arrived. Approximately 1 hour and 15
minutes after officers were dispatched to the bar, the officers were dispatched to a crash. Two
individuals not involved in the collision were at the scene and spoke to the officers. One witness
cut defendant from his seatbelt. That witness informed officers he could smell alcohol coming
from defendant. The witness further reported defendant seemed calm despite the gravity of the
situation, including the fact his vehicle was flipped on its roof and was just involved in a very
serious crash. Another witness at the scene told officers Russell Moore, the driver of the second
vehicle, was “partially in the vehicle, partially out of the vehicle.” That witness helped Moore
exit his vehicle. Approximately 15 to 20 feet from the vehicle, Moore collapsed. He was later
pronounced dead. Moore’s vehicle was engulfed in flames and had to be extinguished by the fire
department. Amanda Bruce, Moore’s daughter, was also in that vehicle. She suffered significant
injuries, including extensive bruising and a laceration requiring stitches to her knee.
¶7 The State further proffered field-sobriety tests performed at the scene indicated
defendant was impaired. Defendant refused to provide a sample to be tested. Defendant was
taken to the hospital, where he required additional medical treatment. A medical draw was
completed by the hospital. Testing done pursuant to a search warrant showed “at three and a half
hours later, he was .167 with his blood alcohol level after the conversion rate from the whole
blood to a blood alcohol concentration.” The State proffered, during defendant’s interview,
defendant “indicated he had too much to drink” and responded “no” when asked if he was okay
to drive. Bruce reported to officers defendant was traveling in their lane and “driving in a
reckless manner.” Russell, her father, attempted to avoid impact, braked and tried to swerve to
the right but defendant’s vehicle still struck them head on. The impact of the collision separated
the cabin of defendant’s pickup from the bed of the truck. In 2009, defendant was charged with
aggravated discharge of a firearm but convicted for reckless discharge of a firearm, after having
fired four shots in the direction of a neighbor’s residence. He was sentenced to two years’
probation. In that case, the State suggested alcohol was a factor as the court in that case ordered
defendant to refrain from consuming alcohol as a term of probation. In that same incident,
defendant resisted arrest by pulling away from the officer. He had to be tased to be detained. In
1997, defendant was convicted in Florida for possession of drug paraphernalia.
¶8 Defense counsel argued a combination of conditions could mitigate any threat, if
the trial court found a threat sufficiently proved. According to counsel, defendant arranged to
live with a family member who agreed to have a landline for the purpose of establishing a
curfew. Counsel suggested defendant be ordered to “not possess or consume alcohol, illicit
drugs, or [tetrahydrocannabinol (THC)],” to report to pretrial services, and submit to testing to
monitor his compliance. Further suggestions included treatment for substance abuse.
¶9 Defense counsel proffered defendant’s 2009 conviction was his only criminal
history. Counsel noted the probation officer in that case stated in the status report defendant was
tested nine times for substances and had all negative drops. The officer reported defendant had
“been a pleasure to deal with.” Defendant successfully completed the sentence of probation
having been, according to another probation officer, “in complete compliance with reporting to
probation as directed and providing urine samples when required.” That officer further reported
defendant provided employment verification as required. Defense counsel highlighted defendant
complied with court orders and had been cordial and respectful during all hearings.
¶ 10 Defense counsel further countered the State’s conclusion the 2009 case involved
alcohol:
“By [stating] the 2009 CF case must have involved alcohol
because one of his bond conditions was to refrain from possession
or consumption of alcohol, as to that there’s two points. One, it
was a common, if not standard practice for certain judges, and each
judge is different, but for certain judges who appeared in bond
court to, regardless of the offense and regardless of the factual
basis noted in the probable cause statement, order an individual to
refrain from the use of substances. Sometimes that—from
previous, previous experience in bond court, that was often the
State’s position to ask for that regardless and see if the court would
grant it.”
¶ 11 The State countered the prohibition against alcohol consumption in 2009 was a
handwritten condition and not a preprinted box to check. The State further argued if alcohol was
not at issue, then “defendant was just at large shooting in his backyard at his neighbor’s house.”
The State further highlighted GPS was not available “within this county” and they had no ability
to monitor if defendant was going to a bar or to a liquor store. The State further noted a landline
can be forwarded to a cell phone.
¶ 12 According to the pretrial services report, defendant worked for one and a half
years for “Stateline Disposal.” He did not list a previous employer. Defendant suffered a broken
neck and back from the incident. He had acid reflux and was being treated for anxiety and
depression. Defendant had used alcohol, cocaine, and cannabis. His first use was at age 16. He
last used on June 14, 2023. He denied “any current substance abuse concerns” and reported using
“alcohol on Wednesday, 6/14/23, [cannabis] on Tuesday, 6/13/2023 and Cocaine when he was
19 years old (one time).” Defendant had attended treatment in Florida in 1997. Defendant denied
having a drug or alcohol problem.
¶ 13 On March 18, 2024, the trial court entered a written order to detain defendant.
The court found, by clear and convincing evidence, the dangerousness standard had been proved.
The court, in finding defendant posed a real and present threat and why less restrictive conditions
would not mitigate that threat, the court summarized the circumstances of the offense. The court
also cited the pretrial report:
“The [pretrial service] Report also indicates defendant has a
history of alcohol, cocaine (defendant stated the cocaine was only
one time) and [cannabis] use dating back to when he was 16 years
old. Defendant was 46 years old at the time of the [driving under
the influence] arrest. Defendant has a history of putting others in
the community in danger. In a previous arrest in Winnebago
County defendant was alleged to have fired a shotgun in the
direction of his neighbor’s property. Upon contact with police,
defendant then resisted arrest and ultimately was tased by police.
Defendant pled guilty in that case to Reckless Discharge of a
Firearm and [was] placed on probation. These actions on the part
of defendant pose a real and present threat to the safety of the
community.”
The court further emphasized not only the nature and circumstances of the charged offenses but
also defendant’s behavior at the bar, as well as the fact defendant had undergone substance-abuse
[SEGMENT 14]
treatment. The court observed defendant did not believe he had a drug or alcohol problem but
“consumed alcohol to a point where he was twice the legal limit and admitted that he knew he
was incapable of safely driving a motor vehicle.” The court rejected defendant’s suggestions for
release conditions:
“Defendant offered suggestions for conditions of release
but provided scant information about his living arrangements and
how he would propose to get to and from any court ordered
appointments or drops since he does not have valid driving
privileges. Defendant suggested a curfew. This requires a landline
and there was no assurance that those calls would not be
transferred to a mobile device at a different location. Our current
technology does not have [GPS] capabilities to monitor a
defendant’s specific location. Although defendant has previously
undergone substance abuse treatment in the past, there is no
evidence of any recent treatment. A suggested [secure continuous
remote alcohol monitoring] device would not provide adequate
protection of the public as it does not prevent someone from
consuming alcohol and driving, it only attempts to monitor
consumption, with the results often not being reported for days or
weeks. Further, it does not detect THC or other substances.”
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 In March 2024, defendant filed a notice of appeal, arguing the State failed to
prove by clear and convincing evidence he poses a real and present threat to the safety of a
person or persons or the community and no condition or combination of conditions can mitigate
that alleged threat. As to his first argument, defendant maintains this court, in [CITATION], “rejected the trial court’s attempt to bootstrap the
‘real and present danger’ finding to its finding that Defendant was presumed to have committed a
criminal act with dangerous elements.” He contends the trial court did the same here while
essentially detaining him based simply on the charged conduct. Defendant further maintains the
court’s decision was improperly based on the conclusion defendant had a long history of alcohol
and drug use and on a 15-year-old conviction to find defendant is a present danger.
¶ 17 The Code presumes all criminal defendants are eligible for pretrial release. 725
ILCS 5/110-6.1(e) (West 2024). Before a trial court may order a defendant detained, the State
must prove multiple elements. One is to prove by clear and convincing evidence “the defendant
poses a real and present threat to the safety of any person or persons or the community, based on
the specific articulable facts of the case.” Id. § 110-6.1(e)(2). The trial court has broad discretion
in choosing what factors to consider in making this determination. See id. § 110-6.1(g) (setting
forth factors a trial court may consider when considering dangerousness). These factors include
the nature and circumstances of the offense charged (id. § 110-6.1(g)(1)) and defendant’s history
and characteristics (id. § 110-6.1(g)(2)). We review decisions regarding pretrial detention for an
abuse of discretion. [CITATION], ¶ 35 (refusing to apply the
manifest-weight-of-the-evidence standard). This court will find an abuse of discretion only if we
conclude the trial court’s decision is unreasonable, arbitrary, or fanciful or we conclude no
reasonable person would agree with the decision. [CITATION], 2023 IL App (4th) 230864,
¶ 10.
¶ 18 The trial court did not abuse its discretion in finding defendant to be a threat to the
community. The court emphasized not only the nature and circumstances of the offense but also
defendant’s behavior preceding his driving under the influence, including taking three shots of
vodka from behind a bar and refusing to pay. While defendant seemingly contends the court
erred by finding a history of alcohol abuse and, according to defendant, implying he had been
doing so for over two decades, we find no error in the court’s citing this history. Defendant had
received treatment, and defendant admitted consuming alcohol and cannabis. We also find no
error in the court’s reliance on defendant’s 2009 conviction. The court’s decision finding
defendant a threat to the community is not based solely on that nearly 15-year-old conviction.
Instead, it was based on the circumstances of the charged offense, the circumstances preceding
the offense, the admission of drug and alcohol use, defendant’s having received treatment for
drug and alcohol use in the past, and defendant’s 2009 conviction for shooting a weapon at his
neighbor’s house. The court’s conclusion defendant is a threat is not fanciful, arbitrary, or
unreasonable.
¶ 19 Defendant next challenges the trial court’s finding the State proved by clear and
convincing evidence no condition or combination of conditions can mitigate the threat.
Defendant, citing [CITATION], contends the trial court here erred
as in [CITATION] by speculating as to whether possible pretrial conditions would allow for
monitoring, rather than preventing, an infraction. Defendant also maintains here, as in
[CITATION], the court’s findings were not specific to him, and he emphasizes the proffer showing
he complied with earlier terms of probation. Defendant further argues the trial court shifted the
burden to defendant to provide assurance calls would not be transferred to a mobile device.
¶ 20 Before a defendant may be denied pretrial release under the dangerousness
standard, the State must prove by clear and convincing evidence “no condition or combination of
conditions set forth in subsection (b) of Section 110-10 of this Article can mitigate *** the real
and present threat to the safety of any person or persons or the community, based on the specific
articulable facts of the case.” 725 ILCS 5/110-6.1(e)(3)(i) (West 2022).
¶ 21 The trial court did not abuse its discretion in finding the State proved this element
by clear and convincing evidence. This case is not like [CITATION]. In [CITATION], the court relied
on information outside the record to find pretrial release conditions were “loosely monitored”
and were not, therefore, adequate to mitigate the threat. [CITATION],
¶ 17. We reversed upon finding “a court should not rule out pretrial release for a defendant based
====== End of the Part ====== on a general perception that conditions of release are loosely monitored.” [CITATION] Here, the
court was not concerned defendant would be “loosely monitored” but found, based on the nature
and circumstances of the offense and defendant’s history, including defendant’s conduct at the
bar, the potential conditions for release would be ineffective in mitigating the threat this
particular defendant poses to the community.
¶ 22 We are also not convinced the trial court shifted the burden of proof on this
element to defendant. It is clear by the court’s analysis it knew the State carried the burden of
proof. The court did not find defendant did not meet its burden of proof but found defendant’s
proffer was insufficient to counter the State’s proffer a curfew or home confinement would be
insufficient. According to the pretrial report, defendant, if released, intended to reside at the
residence where he had lived with a child for two and a half years. The State argued defendant
should not be allowed to stay at home as landlines may be forwarded. Defendant countered the
State’s proffer by stating, contrary to what was recorded in the pretrial report, he would reside
with a relative he did not name and that did not yet have a landline. The burden was not shifted;
the court simply did not accept defendant’s vague counter argument.
¶ 23 We also note defendant’s contention the trial court erred in stating twice
defendant’s substance use began at age 16. Defendant contends “[a]t no time in the two-part
hearing was the age 16 mentioned by either counsel” and the pretrial service report does not
reference it. Defendant is incorrect. The pretrial service report plainly states defendant reported
“Age at first use: 16.”
¶ 24 III. CONCLUSION
¶ 25 We affirm the trial court’s judgment.
¶ 26 Affirmed.
- 10 -
2024 IL App (1st) 240259
No. 1-24-0259B
Opinion filed June 28, 2024
Sixth Division
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 24110508401
)
BRIAN CARTER ) Honorable
) Ankur Srivastava,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices C.A. Walker and Tailor concurred in the judgment and opinion.
OPINION
¶1 Before the trial court concluded that “nothing *** short of” pretrial detention would
suffice, it should have considered other statutory conditions. When ordering Brian Carter detained,
the trial court erred by overlooking several enumerated conditions besides detention under article
110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)), as
amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act.
[SEGMENT 15]
We reverse and remand for a new hearing on the State’s petition to detain.
¶2 BACKGROUND ¶3 Brian Carter stood accused of aggravated battery with a firearm and aggravated discharge
of a firearm for allegedly shooting into a car traveling alongside him. The State sought to deny
him pretrial release.
¶4 Hearing
¶5 The State provided an account from the driver of a car that had quickly merged into Carter’s
lane to avoid a parked truck, after which Carter tailgated the driver and his passenger. Through the
rearview mirror, the passenger saw Carter appear to wave a gun. Carter soon pulled into oncoming
traffic and shot at the driver’s side, shattering the rear passenger window. The passenger called
911 and narrated as the driver began to chase Carter. When the driver caught up, Carter again
pulled into oncoming traffic and shot. A bullet “grazed” the driver’s right knee and struck the
passenger’s left knee.
¶6 According to the State’s proffer, officers learned Carter was driving his mother’s leased
car. His mother reported Carter had told her about the incident. Officers Mirandized (see [CITATION])
and interrogated Carter. He acknowledged the shooting and
described fearing for his life as the other driver tried to push his car into oncoming traffic. Carter’s
first shot was a warning. He fired again after seeing a hand emerge from the other car. Carter drove
to work following the incident. Officers located two shell casings in his mother’s car.
¶7 Carter had no criminal history or traffic citations. He had a firearm-owner identification
card but no concealed-carry license. Pretrial services assigned Carter’s “new criminal activity” and
“failure to appear” scores one (out of six) and recommended pretrial monitoring. Carter’s counsel
highlighted his circumstances, including that Carter was 30 years old; was employed part-time as
a “stagehand/driver”; lived with his wife, three children, and mother; and drove his children to
school daily. He also looked after his mother, who was battling late-stage cancer.
¶8 The trial court ordered Carter’s pretrial detention, finding the three elements of section
110-6.1(e) of the Code (725 ILCS 5/110-6.1(e) (West 2022)) satisfied.
¶9 As for the first two elements, the trial court determined that (i) the proof was evident or the
presumption great that Carter committed the detention-eligible offense, namely, aggravated
discharge of a firearm, and (ii) Carter posed a real and present threat to the safety of the people he
shot as well as others, like those on the road and sidewalk near the rolling shooting. See [CITATION] § 110-
6.1(e)(1)-(2).
¶ 10 The third element, whether any condition or combination of conditions can mitigate the
real and present threat, was a “harder question” for the trial court. See [CITATION] § 110-6.1(e)(3). Carter
posed “a good person” who found himself “now in a really bad situation.” The trial court stated:
“[T]he types of conditions I can impose don’t stop this kind of thing from happening. If I
put you on a curfew, if I put you on electronic monitoring, you still have the ability to drive
around and do the things you need to do to live, as you should. *** If you’re out doing
those things, the conditions I can impose would not stop something like this from
happening again. There is really nothing I could do short of detaining you to make sure
that this type of incident does not occur again. And what’s concerning to me is that it’s
unprovoked.”
¶ 11 In a written order, the trial court added that the proffered facts “suggest[ed] a lack of
impulse control” and “[t]he conditions this court could impose would not prevent an incident like
this from occurring again.”
¶ 12 Carter filed a timely notice of appeal from the pretrial detention order. He argues the trial
court erred by finding against him on the third element.
¶ 13 ANALYSIS
¶ 14 We review the trial court’s order under a bifurcated standard of review. [CITATION] ¶ 13. But see [CITATION], ¶¶ 12-35
(canvassing appellate court split on standard of review), appeal allowed, No. 130626 (Ill. Jun. 11,
2024). We reverse findings against the manifest weight of the evidence and review the trial court’s
ultimate decision for an abuse of discretion. [CITATION], ¶ 13.
¶ 15 Illinois law now presumes defendants are eligible for pretrial release. 725 ILCS 5/110-2(a),
110-6.1(e) (West 2022). The parties’ dispute concerns the third element. Carter contends the
proffered facts about the alleged offenses fail to prove that no condition or combination of
conditions can mitigate the real and present threat he poses. See [CITATION], ¶ 21 (rejecting contention that reciting language of the Code satisfies burden to prove
third element). In opposition, the State argues that neither home confinement nor electronic
monitoring would protect the public from Carter’s alleged anger and impulsivity.
¶ 16 The parties, however, offer an incomplete analysis, as did the trial court. The trial court
erred by (i) coupling its analysis of the third element to the alleged offenses and (ii) overlooking
conditions short of detention, which could mitigate any real and present threat Carter posed.
¶ 17 We begin with section 110-5(a). It lists several factors a trial court must consider when
“determining which conditions of pretrial release, if any, will reasonably ensure *** the safety of
any other person or the community and the likelihood of compliance by the defendant with all the
conditions of pretrial release.” 725 ILCS 5/110-5(a) (West 2022). Next, section 110-5(c) cross-
references section 110-10(a) and (b). Id. §§ 110-5(c), 110-10(a)-(b). Those sections particularize
mandatory conditions of pretrial release (id. § 110-10(a)) and provide a nonexhaustive list of
discretionary conditions, but only when they “include the least restrictive means and [are]
individualized” (id. § 110-10(b)).
¶ 18 First, the trial court zeroed in on Carter’s “really bad situation,” that is, the alleged offenses.
True, what Carter sketches as allegations, the State fairly presents as possible evidence of anger
and impulsivity. Even so, the context of the alleged offenses is relevant—context shapes facts,
after all—but also inconclusive. [CITATION], ¶¶ 17-18 (bare
allegations relevant but insufficient to satisfy third element). Nothing in the record indicates that
the trial court considered the alleged offenses along with other evidence, such as Carter’s lack of
criminal history and, until that point, lawful possession of a weapon. When weighing whether to
order pretrial detention, the trial court must assess all of the evidence before it.
¶ 19 Next, when ordering Carter’s pretrial detention, the trial court fixated on electronic
monitoring and home detention, conditions appearing in a single subsection (725 ILCS 5/110-
5(b)(5) (West 2022)). This narrow focus disregarded the other enumerated conditions, for example,
that Carter “[r]efrain from possessing a firearm or other dangerous weapon.” Id. § 110-10(b)(2).
Section 110-10(b)(9) also broadly authorizes courts to impose “other reasonable conditions”—
perhaps, a prohibition from driving while on pretrial prelease or confiscating his weapons and
FOID card—if those conditions are individualized and the least restrictive means possible to
ensure defendant’s appearance in court and compliance with pretrial release rules, court
procedures, and criminal statutes. Id. § 110-10(b)(9).
¶ 20 Thus, the trial court improperly applied its discretion under the Code. See [CITATION]
(“[A] trial court must exercise its discretion within the bounds
of the law.”). The Code offers far more options. [CITATION],
¶ 33-37 (remanding for new hearing where trial court failed to consider “full constellation of
conditions at its disposal”).
¶ 21 Before deciding that nothing short of pretrial detention will suffice, the trial court must
consider other statutory conditions, which did not occur here. See [CITATION], ¶ 19 (unreasonable detention orders reversible as abuse of discretion and against
manifest weight). Accordingly, we reverse.
¶ 22 CONCLUSION
¶ 23 We express no opinion on whether the trial court should order Carter detained. On remand,
the trial court should consider this question anew, consistent with our decision.
¶ 24 Reversed and remanded.
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 24110508401;
the Hon. Ankur Srivastava, Judge, presiding.
Attorneys Sharone R. Mitchell Jr., Public Defender, of Chicago (Emily
for Motin, Assistant Public Defender, of counsel), for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Lynnette
for Cusack, Assistant State’s Attorney, of counsel), for the People.
Appellee:
[SEGMENT 16]
2024 IL App (1st) 240653-U
No. 1-24-0653B
Order filed June 27, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit
) Court of Cook County.
Plaintiff-Appellee, )
) No. 23 CR 5937
vs. )
)
FRANKLIN MCKELKER, ) Honorable
) Tiana S. Blakely,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Presiding Justice Rochford concurred in the judgment.
Justice Ocasio specially concurred.
ORDER
¶1 Held: We affirm the circuit court’s order where the evidence demonstrated that
McKelker’s continued detention was necessary to avoid a real and present threat
to the safety of any person(s) or the community, based on the specific articulable
facts of the case.
¶2 Defendant Franklin McKelker appeals the circuit court’s order granting the State’s petition
for pretrial detention, pursuant to Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023).
McKelker was arrested and charged prior to the effective date of Public Act 101-652 (eff. Jan. 1,
2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act ```plaintext
No. 1-24-0653B
(Act).1 For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 McKelker was arrested on May 3, 2023 and was charged with a combined 26 counts of
aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(2), (a)(4) (West 2022)), criminal sexual
assault (702 ILCS 5/11-1.2(a)(1), (a)(3) (West 2022)), and aggravated criminal sexual abuse (720
ILCS 5/11-1.60(a)(6), (b), (c)(1)(ii), (d) (West 2022)), following a July 4, 2022 incident in which
he sexually assaulted his 13-year-old sister-in-law, A.G.2 He was ordered held no bail and
remained in custody.
¶5 On March 5, 2024, McKelker filed a petition requesting that the court grant him pretrial
release under the Act. A week later, the State filed a responsive verified petition to deny pretrial
release, pursuant to sections 5/110-2 and 5/110-6.1 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/110-2, 110-6.1 (West 2022)).
¶6 The State’s petition alleged that McKelker committed an eligible offense (aggravated
criminal sexual assault) as listed in Section 5/110-6.1(a)(1.5) of the Code, and that he “poses a real
and present threat to the safety of any person or persons in the community.” Specifically, the State
relayed that:
“The victim and [McKelker] have known each other since the victim was born, and
the victim refers to [McKelker] as “Dad.” At the time of this incident, the victim was a 13-
year-old girl, and [McKelker] was a 31-year-old man. On or about July 4, 2022, the victim
had spent the day with [McKelker] and her sister to celebrate the Fourth of July holiday.
“The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither
name is official, as neither appears in the Illinois Compiled Statutes or public act.” [CITATION]. Raoul lifted the stay of pretrial release provisions and set an effective date of September
18, 2023. Id. ¶ 52; Pub. Acts 101-652, § 10-255, 102 1104, § 70 (eff. Jan. 1, 2023).
McKelker is married to A.G.’s sister and A.G. refers to McKelker as “Dad.” We refer to the victim
by her initials to maintain her anonymity.
``` No. 1-24-0653B
When they returned home, the victim and [McKelker] were sitting in the front room on the
main floor of the house. [McKelker] and victim were watching television and cuddling on
the couch. While on the couch, the victim began to feel itchy and so she removed her
leggings but kept on her underwear. [McKelker] went downstairs to get some lotion and
returned to the couch with it and began to apply lotion to the victim’s legs. [McKelker]
continued to rub the victim’s legs and moved his hand up to the victim’s inner thigh, near
her sex organ, and made the victim uncomfortable. [McKelker] then rubbed the victim’s
sex organ with his hand over the victim’s underwear. [McKelker] used two fingers to then
rub the victim’s sex organ underneath the victim’s underwear and then tried to insert his
fingers into the victim’s sex organ. At the same time, he was trying to penetrate the victim’s
sex organ with his fingers, [McKelker] was also biting the victim’s neck while commenting
about how the victim was tight. Every time someone would walk into the front room,
[McKelker] would stop what he was doing. The victim’s older sister, and [McKelker]’s
wife, walked into that room at one point but did not observe anything out of the ordinary
and left the room. After the older sister left, [McKelker] put his hands in the victim’s
underwear and tried to touch the victim’s chest, but [McKelker] was unable to make contact
with the victim’s skin because she was wearing a bra. [McKelker] eventually stopped when
the victim made something fall on the floor and then acted like she’d left her phone in her
purse. The victim told [McKelker] she was going to bed and then went upstairs to her
bedroom, but [McKelker] followed her to her room.
[McKelker] then acted like he was tucking the victim into bed, but then [McKelker]
began throwing the blankets to the side. He then grabbed the victim’s leg and moved it to
the side. [McKelker] touched the victim’s chest and put his hand on the victim’s sex organ
and began to rub the victim’s sex organ underneath her underwear. The victim tried to say
No. 1-24-0653B
something but couldn’t get words out. But when the victim started making noise,
[McKelker] covered the victim’s mouth, and the victim felt trapped. The victim’s sister
then came upstairs to the main floor from the basement where she told the victim that she
had to sleep downstairs in the victim’s mother’s room, and the victim went downstairs.
While she was in her mom’s room, [McKelker] came in to let the dog out. The victim was
laying in her mother’s bed, on her stomach, and [McKelker] laid down next to her and
began rubbing her back and touching the victim’s buttock over her underwear. [McKelker]
turned the victim over and made the victim lay on her back where he then started touching
her sex organ with his hand over the victim’s underwear. [McKelker] got off the bed and
grabbed the victim’s legs where he then moved the victim closer to him. The victim was
too shocked to say anything at that point. While at the side of the bed, [McKelker] removed
the victim’s underwear and began rubbing his fingers on the victim’s sex organ.
[McKelker] then flipped the victim over, so she was on her hands and knees and
[McKelker] tried to insert his penis into the victim’s sex organ but was unsuccessful.
However, [McKelker] did not stop. He then flipped the victim over onto her back and after
several more attempts, [McKelker] succeeded in penetrating the victim’s sex organ with
his penis. [McKelker] was not wearing a condom. The victim made noises during this time,
and [McKelker] covered her mouth with his hand. The victim saw [McKelker] making
facial expressions as if he was enjoying it and [McKelker] made comments as to the
tightness and wetness of the victim’s vagina. The victim felt pain from the penetration.
Eventually, [McKelker] stopped and left the room.
The victim then went to the bathroom and felt a burning sensation. The victim
[SEGMENT 17]
returned to her room and called her friend, who was another 13-year-old girl and made
disclosures. The victim then went to her brother, who was in his room with his girlfriend,
No. 1-24-0653B
and made disclosures to her brother. The brother confronted [McKelker], who made
denials, and the victim called her mother and made disclosures to her mother. The victim
was then taken to the St. James Hospital where she underwent a sex assault kit with a SANE
registered nurse. On or about December 12, 2022, the lab report for the sex assault kit was
completed, and one of the vaginal swabs tested positive for male sperm DNA which
eventually came back as [McKelker]’s DNA. The victim and her brother both positively
identified [McKelker] through single photo identifications. In early November 2022,
[McKelker] and witness Builta began working for the same company. Within the first week
of working with [McKelker], [McKelker] made admissions to witness Builta. On or about
May 3, 2023, [McKelker] turned himself in to the Flossmoor Police Department.
The release of [McKelker] would pose a real and present threat to the physical
safety of any person or persons. In support therefore the following is submitted:
[McKelker] assaulted the victim, who was a 13-year-old child, multiple times throughout
the evening of July 4, 2022. Even when the victim managed to get away from [McKelker]
and move to a separate room, [McKelker] followed her so that he would be able to continue
his assaults. [McKelker] was not deterred from his multiple assaults of the victim by the
presence of other family members in the home, nor was the fact that his own wife, the sister
of the victim, entered the very room in which he was assaulting the victim enough to
prevent [McKelker] from further assaulting the victim. [McKelker] caused the victim pain
throughout his assault.”
¶7 The court then conducted a hearing on the petitions. The State proceeded by presenting a
proffer substantially identical to that in its petition. 3 The State represented that McKelker has no
The State acknowledges that McKelker was incorrectly described as A.G.’s uncle in its petition
for detention and at the hearing.
No. 1-24-0653B
previous criminal history.
¶8 Defense counsel highlighted that McKelker’s wife, A.G.’s sister, was present at every court
date in support of him, as was his mother. Counsel further argued that McKelker’s parents have
lived in Homewood, Illinois for approximately 30 years and that their home was a possible place
for McKelker to stay while on EM. He is a high school graduate who has worked multiple jobs
throughout his adult life, including ten years as a chemical operations operator at a car paint
manufacturing company. Additionally, he has a five-year-old daughter and has been involved in
her life since birth. Counsel emphasized that McKelker became aware of the allegations against
him on July 5, 2022 and he voluntarily removed himself from the home. 4 Counsel argued that
McKelker’s lack of criminal background demonstrated he is not a threat to the community. Further,
counsel alleged that he was not a threat to A.G. because he removed himself from the home and
had discontinued any communication with her. Last, counsel contended it was notable that the
incident happened in July 2022, but McKelker remained out of custody until May of 2023 when
police requested that he surrender himself. This indicates that McKelker is not a flight risk.
¶9 In response, the State countered that McKelker is a “very dangerous man who had
unconsented sex with his own 13-year-old niece.” Additionally, the State highlighted that
McKelker confessed to a co-worker that “he put his penis into his 13-year-old niece’s vagina.”
The State concluded that McKelker is “definitely a danger to any woman on this planet, including
his own five-year-old daughter, because he can’t control himself.”
¶ 10 The court found the State proved by clear and convincing evidence that the proof is evident
and the presumption great that McKelker committed aggravated criminal sexual assault, and that
he poses a real and present threat to both A.G. and the community at large. Specifically, the court
McKelker and A.G.’s sister were living in the same home as A.G. at the time.
No. 1-24-0653B
stated that it believes, based on the proffered evidence, that McKelker is a threat to any minor,
including his own child. The court noted that McKelker does not have any criminal history and
surrendered to police, but addressed McKelker’s dangerousness, highlighting that the offense was
committed on the 4th of July at a familial holiday gathering. The court noted that A.G. was
victimized by someone she trusted and loved. Further, the court addressed why it believed no
conditions could mitigate the real and present threat McKelker poses, stating that EM was
inappropriate where the proffered evidence indicated that he assaulted a 13-year-old child more
than three times, following her through various rooms, with other adults present. The court
additionally explained that placing McKelker on EM at his mother’s home does not preclude the
possibility, as one of seven children, that there would be another holiday gathering or that he would
be exposed to another child in his mother’s house. The court noted that GPS would not mitigate
the threat, as it does not allow for his actions to be controlled and cannot ensure the safety of
children. Last, the court explained that these are just allegations currently, but did note that the
medical exam found McKelker’s DNA in semen removed from a vaginal swab of the victim.
Accordingly, the court ordered McKelker to remain remanded pending trial.
¶ 11 The court entered a written detention order using a template form that lists the requisite
three propositions preprinted on the form—(1) the proof is evident or the presumption great that
the defendant has committed a detention eligible offense, (2) the defendant poses a real and present
threat to the safety of any person(s) or the community, based on the specific articulable facts of the
case, and (3) no condition or combination of conditions of release can mitigate that threat. On lines
provided below each proposition, the court wrote specific facts from the case that it relied upon to
reach its findings. Beside the preprinted finding for the first proposition, the court wrote, “Agg.
Crim. Sex. Ass.” For the second proposition, the court wrote,
“He sexually assaulted his 13 year old niece multiple times, following her from
No. 1-24-0653B
room to room until he successfully penetrated her. He was relentless in his actions. He
assaulted her while his wife was present in the home, as well as other adults. He is a threat
to the victim and any minor children.”
For the third proposition, the court wrote:
“[Electronic Home Monitoring (EM)] will not mitigate the threat to the safety of
A.G. or any other minor in his presence. His wife walked in the very same room where he
was assaulting A.G. and he continued the assault when his wife left. The presence of other
adults in the home did not prevent [McKelker’s] actions. This court finds neither will GPS
or [EM].”
The order indicates that McKelker is to be detained pending trial.
¶ 12 McKelker filed a timely notice of appeal on March 21, 2024.
¶ 13 II. ANALYSIS
¶ 14 On appeal, McKelker filed a notice in lieu of a memorandum, choosing instead to stand on
the arguments he made in his notice of appeal. See [CITATION] (eff. Dec.
, 2023). Utilizing the approved form from the Article VI Forms Appendix to the Illinois Supreme
Court Rules (see [CITATION]), McKelker’s claims of error
consisted of two claims: (1) the State failed to prove by clear and convincing evidence that he
poses a real and present threat to the safety of any person(s) or the community, and (2) the State
failed to prove by clear and convincing evidence that no condition or combination of conditions
can mitigate the real and present threat he poses. More specific arguments were supplied in the
blank spaces below these preprinted assertions.
¶ 15 As further support, McKelker argues that the State failed to meet its burden to prove that
he poses a threat, where there were approximately 10 months between the offense date and the
date that charges in this case were filed. He states that he and A.G. lived in the same home before
No. 1-24-0653B
the allegations, and he immediately moved from that home and discontinued all communication
with A.G. following the allegations. Further, McKelker points out that he voluntarily surrendered
himself and has no prior arrest or criminal history. Next, he claims the State failed to prove that
[SEGMENT 18]
no conditions can mitigate any threat he may pose where he could be released on EM at his parent’s
residence in Homewood, Illinois. Additionally, he posits he could be placed on GPS and has no
objection to a “No Contact Order” with A.G. or any place she may frequent. Last, he argues that
no facts were presented indicating that lesser conditions are insufficient to ensure the safety of
A.G., and there is no evidence that there is a present threat to the safety of any other person or the
community.
¶ 16 The State chose to file a responsive memorandum, arguing that that the court properly
exercised its discretion where they proved by clear and convincing evidence that McKelker poses
a real and present threat to the safety of the community, and that no conditions could mitigate that
risk. The State asserts that the court’s finding that McKelker is dangerous was reasonable, based
on the proffered evidence and statutory factors.
¶ 17 In considering this appeal, this court has reviewed the following documents which were
submitted under Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023): (1) McKelker’s notice
of appeal pursuant to the Act, (2) the supporting record, and (3) the State’s Response to McKelker’s
appeal.
¶ 18 “Pretrial release is governed by section 110 of the Code as amended by the Act.” [CITATION],
¶ 4 (citing 725 ILCS 5/110-1 et seq. (West 2022)). Pursuant
to the Code, “it is presumed that a defendant is entitled to release on personal recognizance on the
condition that the defendant shall attend all required court proceedings and the defendant does not
commit any criminal offense, and complies with all terms of pretrial release.” 725 ILCS 5/110-2(a)
(West 2022). Under the Code, all persons charged with an offense are eligible for pretrial release
No. 1-24-0653B
before conviction. Id. The court may deny pretrial release only upon a verified petition by the State
and following a hearing. 725 ILCS 5/110-6.1(a) (West 2022). It is the State’s burden to prove by
clear and convincing evidence that (1) the presumption is great or the proof evident that the
defendant committed a detainable offense, (2) the defendant poses a real and present threat to the
safety of any person(s) or the community, based on the specific and articulable facts of the case,
and (3) no condition or combination of conditions can mitigate the threat the defendant poses, or
prevent the defendant’s willful flight from prosecution. 725 ILCS 5/110-6.1(e)(1)-(3) (West 2022).
The standard “requires proof greater than a preponderance, but not quite approaching the criminal
standard of beyond a reasonable doubt.” [CITATION]
¶ 19 If the court determines that the State has met its burden and the defendant should be denied
pretrial release, the court is required to make a written finding summarizing the reasons for denying
pretrial release. Id. § 6.1(h)(1). If the court finds that detention is not appropriate, it can impose
additional conditions if it determines such conditions:
“are necessary to ensure the defendant’s appearance in court, ensure the defendant
does not commit any criminal offense, ensure the defendant complies with all conditions
of pretrial release, prevent the defendant’s unlawful interference with the orderly
administration of justice, or ensure compliance with the rules and procedures of problem
solving courts.” 725 ILCS 5/110-10(b) (West 2022).
¶ 20 Section 110-7.5 of the Code provides guidance regarding individuals who were arrested
prior to the effective date of the Act and separates those individuals into three categories. 725 ILCS
/110-7.5 (West 2022). The first category is comprised of any defendant released subject to pretrial
conditions prior to the Act’s effective date. Id. § 110-7.5(a). The second category is comprised of
any defendant remaining in pretrial detention after having been ordered released with pretrial
conditions, including the condition of depositing monetary security. Id. § 110-7.5(b). Last, the
```plaintext
No. 1-24-0653B
third category is comprised of “any person, not subject to subsection (b), who remains in pretrial
detention and is eligible for detention under Section 110-6.1.” Id.
¶ 21 McKelker falls into the third category, as an individual who was ordered held “no bail”
prior to the Act’s effective date. Section 5/110-7.5(b)(1) specifically states that such defendants
“charged with offenses under paragraphs (1) through (7) of subsection (a) of Section 110-6.1 [shall
be entitled to a hearing] within 90 days of the person’s motion for reconsideration of pretrial release
conditions.” However, the statute does not specify what type of hearing such defendants are
entitled to. While section 5/110-7.5(b) explains that the second category of defendants “shall be
entitled to a hearing under subsection (e) of Section 110-5,” the third category is specifically
comprised of those defendants “not subject to subsection (b),” despite the third category itself
being defined within subsection 5/110-7.5(b).
¶ 22 Although both parties and the trial court appeared to operate under the assumption that
McKelker was entitled to a new detention hearing pursuant to section 5/110-6.1 of the Code, it
would appear from the statute’s plain language that it does not contemplate a new detention hearing
for defendants such as McKelker—those arrested prior to the Act, who were previously detained
by the court following a bond hearing. Instead, it appears that similarly situated defendants are
entitled to a hearing to reconsider pretrial release conditions—a hearing more akin to that
contemplated in section 5/110-5(e) of the Code. See [CITATION], ¶ 25 (holding that the only hearing referenced in subsection 110-7.5(b) is a subsection
-5(e) hearing and noting that a hearing on pretrial detention for an individual the statute
recognizes to be detained ‘is nothing if not redundant.”). Both McKelker and the State
acknowledged that McKelker was previously ordered detained. Accordingly, the appropriate
question before the court was whether continued detention was necessary “to avoid a real and
present threat to the safety of any person or persons or the community, based on the specific
``` No. 1-24-0653B
articulable facts of the case, or to prevent the defendant's willful flight from prosecution.” 725
ILCS 5/110-6.5(i-5) (West 2022).
¶ 23 For detained defendants, “the Code does not require the court to again make specific
findings that the State proved the three propositions by clear and convincing evidence as required
at the initial hearing.” [CITATION], ¶ 13. “Notably, this portion of the Code, unlike the portions dealing with petitions for detention, does not prescribe a quantum of
evidence or place a burden of proof on any party.” [CITATION], ¶ 18.
Further, subsection (i-5) requires the court to make the determination at each subsequent
appearance. “This determination also does not contemplate the filing of a petition for detention.”
Id. Nonetheless, here the State filed a responsive detention petition after McKelker filed his
petition for pretrial release, and the court proceeded as if it was an original detention hearing. We
note that the State’s apparent acquiescence to a section 110-6.1 detention hearing and the court’s
findings consistent with such a hearing did not render the proceeding a proper detention hearing.
However, the required finding in section 110-6.1(i-5) shares some commonalities with the burden
the State must meet at an initial detention hearing. [CITATION], ¶ 33.
¶ 24 We now turn to the hearing that was held on March 11, 2024. Since the appellate court
began deciding appeals pursuant to the Act, the court has consistently reviewed the trial court’s
pretrial release findings under either an abuse of discretion or a manifest weight of the evidence
standard. See [CITATION], ¶¶ 13-35 (thoroughly discussing the
different standards of review as applicable to a decision under the Act). We need not opine on
which of these two standards of review is proper, where the result of this case would be the same
under either an abuse of discretion or manifest weight standard. We acknowledge that some
justices have advocated for a de novo standard of review, however, no panel of the court has
reviewed a pretrial release appeal utilizing de novo review.
No. 1-24-0653B
¶ 25 Here, the evidence proffered demonstrated that McKelker’s continued detention is
necessary to avoid the real and present threat he poses. McKelker sexually assaulted his
-year-old sister-in-law more than three times at a familial gathering. As she attempted to flee
[SEGMENT 19]
from McKelker, he followed her, moving from room to room and continuing his sexual assault.
McKelker’s DNA was found in semen recovered from a vaginal swab of the victim. The court
noted McKelker was someone the victim trusted and loved and that she referred to McKelker as
“dad.” During the course of the assault, McKelker’s wife—also the victim’s sister—entered the
room; even this was not enough to make McKelker stop his assault. The presence of multiple adults
in the family home did nothing to deter McKelker as he pursued the victim throughout the house.
The court specifically found that McKelker is a danger to not only the victim, but to his own
biological five-year-old daughter, as well as any other child he may encounter. Moreover, while
defense counsel argued that McKelker could be put on EM and reside at his mother’s home, the
court made it clear that, based on the articulable facts of the case, the presence of family was not
enough to deter McKelker’s actions. Further, the court found that no restriction it could impose
would have any effect on whether McKelker would encounter children at his mother’s house, and
neither EM nor GPS could protect any children McKelker might be around. We find the facts
proffered in this case support the court’s decision to deny McKelker's motion and its conclusion
that continued detention was necessary. Based on the foregoing, we cannot say that the court’s
decision is unreasonable, arbitrary, or not based on the evidence presented.
¶ 26 III. CONCLUSION
¶ 27 Following a thorough review of the record on appeal, for the reasons stated, the circuit
court’s order is affirmed.
¶ 28 Affirmed.
¶ 29 JUSTICE OCASIO, specially concurring:
No. 1-24-0653B
¶ 30 I concur in the judgment, but I respectfully disagree regarding the standard of review. I
continue to hold the conviction that, except for findings of historical fact, the standard of review
in appeals from detention orders should be de novo. See [CITATION], ¶¶ 79-138. (Ellis, J. concurring).
2024 IL App (4th) 240541
FILED
June 26, 2024
NO. 4-24-0541 Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Macoupin County
LEE C. WALTON, ) No. 23CF275
Defendant-Appellant. )
) Honorable
) Joshua A. Meyer,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Justices Zenoff and Lannerd concurred in the judgment and opinion.
OPINION
¶1 After his initial pretrial release on conditions was revoked, defendant Lee C.
Walton was detained prior to trial pursuant to section 110-6 of the Code of Criminal Procedure of
1963 (Code) ([CITATION]), as amended by Public Act 101-652 (eff. Jan. 1,
2023), commonly referred to as the Pretrial Fairness Act (Act). Subsequently, the circuit court
found that defendant’s continued detention was reasonably necessary to ensure his appearance at
court hearings and to prevent the commission of a future felony or Class A misdemeanor. [CITATION]. Defendant now appeals, arguing that his continued detention is no
longer necessary.
¶2 For the following reasons, we affirm.
¶3 I. BACKGROUND ¶4 Defendant was charged by information in Macoupin County case No. 23-CF-275
with two counts of aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4) (West 2022))
(Class 2 felony); criminal trespass to a residence (id. § 19-4(a)(2)) (Class 4 felony); and aggravated
assault involving the use of a deadly weapon (id. § 12-2(c)(1)) (Class A misdemeanor). The
incident occurred on the 900 block of Johnson Street in Carlinville, Illinois. The State initially did
not petition the court to detain defendant pending trial pursuant to the Code. See 725 ILCS 5/110-
6.1(a) (West 2022). On December 17, 2023, defendant was granted pretrial release on the
following conditions relevant here: (1) the mandatory condition that he not violate any criminal
statute of any jurisdiction (id. § 110-10(a)(4)) and (2) the additional condition that he not enter the
900 block of Johnson Street in Carlinville, Illinois (see id. § 110-10(b)(4)).
¶5 About two weeks after being granted pretrial release, defendant was charged with
six new offenses in Macoupin County case No. 24-CF-2: aggravated battery of a peace officer
(720 ILCS 5/12-3.05(d)(4) (West 2022)) (Class 2 felony); criminal trespass to a residence
(id. § 19-4(a)(2)) (Class 4 felony); two counts of resisting arrest (id. § 31-1(a)) (Class A
misdemeanor); battery (id. § 12-3(a)(2)) (Class A misdemeanor); and criminal trespass to land
(id. § 21-3(a)(2)) (Class B misdemeanor). The charged events are alleged to have occurred on
January 3, 2024, on the 900 block of Johnson Street in Carlinville.
¶6 On January 4, the State filed a verified petition to revoke defendant’s pretrial
release in case No. 23-CF-275 pursuant to section 110-6(a) of the Code ([CITATION]), contending that defendant’s conduct on January 3 demonstrated that he had violated
the conditions of his release and that detention was necessary to prevent him from being charged
with a subsequent felony or Class A misdemeanor. The State also filed a petition for sanctions
based on the same conduct. See id. § 110-6(e)(1).
¶7 The State’s petitions were filed on January 4, 2024. According to the State’s
proffer, on the evening of January 3, 2024, Carlinville Police Department officer Hunter Sutton
was dispatched to 911 Johnson Street, Carlinville, for a reported argument. Upon his arrival, Sutton
found an “ongoing argument.” He attempted to speak with defendant, who ultimately ended up
going upstairs, out a window, and onto the roof. Holding a cord, defendant stated that he was going
to hang himself. The cord snapped, and defendant fell from the roof.
¶8 Defendant then fled the scene and attempted to gain entry to a nearby residence on
Johnson Street, a location at which he had previously trespassed. The owner, however, had locked
the doors. Defendant then went to the back door of the residence and tried to push his way inside,
but he was unsuccessful because the property owner had barred the door. Defendant then fled and
gained entry to the residence of James Morgan, also on Johnson Street. Upon arrival, Sutton
observed defendant inside Morgan’s residence arguing with Morgan. Defendant wrestled with
Morgan before he was ultimately placed under arrest by Sutton and another officer. While
defendant was in the custody of the Macoupin County Sheriff’s Department, he resisted being
placed into his cell and spit on a police officer.
¶9 In response to the State’s petitions, defense counsel argued:
“Your Honor, [defendant] lives in [L]uka, Illinois. He works constructions [sic].
He suffers from sleep apnea and high blood pressure. He has two minor children
that he helps care for. He also is trying to get into school at Kaskaskia. He is willing
to do any pretrial condition in order to be released. He is asking for his release.”
¶ 10 Following arguments, the circuit court granted the State’s petition to revoke pretrial
release, finding “by clear and convincing evidence for the reasons stated on the record that no
condition or combination of conditions of release would reasonably” prevent defendant from being
charged with a subsequent felony or Class A misdemeanor. In further elaboration of its ruling, the
court stated in its written order that “defendant has multiple felony charges and has not followed
his PreTrial Release conditions. He has a significant criminal history and is suffering from mental
health issues.” The written order also stated the court’s conclusion that the conditions specified in
paragraphs 2 and 12 of its December 17, 2023, order for pretrial release had been violated.
Defendant did not appeal from any of the rulings made on January 4, 2024.
¶ 11 A pretrial status hearing was held on March 18, 2024; pursuant to section 110-6(j)
of the Code, the circuit court was obligated at that hearing to determine whether defendant’s
continued pretrial detention was necessary. Id. § 110-6(j). No transcript of that hearing is available,
but the parties have filed a stipulation with this court, which provides, in pertinent part, as follows:
[SEGMENT 20]
“Defense counsel *** proffered that the Defendant was not a danger to any person
or the community, as [he] was having mental health issues during the time of the
incidents in question, which have stabilized since that time. Mental health services
are not available to the Defendant in the Macoupin County jail. Further, that the
Defendant lives in [L]uka, [I]llinois, in Marion County, several counties away. He
also suffers from sleep apnea and uses a CPAP machine, which is not currently
functioning; he cannot remedy that issue in jail. Counsel further argued that
reasonable conditions exist to mitigate any perceived danger the Defendant poses,
including but not limited to being required to live at the [L]uka, [I]llinois residence,
court-ordered mental health treatment, and being ordered not to have contact with
specified persons and/or locations.”
The State argued,
“[T]he defendant poses a danger to the community because of his significant
criminal history, and the fact that he was previously released on pre-trial release
with conditions, and committed another offense while on release. Further, the State
argued that no reasonable conditions existed to mitigate the danger, because the
Defendant had been released on pre-trial conditions previously, and committed
another offense while on pre-trial release. In rebuttal, defense counsel argued that
the Defendant had not previously been released on the condition that the defense
was proposing at this time, and therefore, he did not have a history of
noncompliance with those conditions.”
¶ 12 At the conclusion of the March 18 hearing, the court found that continued detention
was necessary to reasonably assure defendant’s appearance for later hearings and to prevent him
from being charged with a subsequent felony or a Class A misdemeanor.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 As explained earlier, no appeal was taken from the January 4, 2024, order revoking
defendant’s pretrial release. Instead, defendant appeals from the circuit court’s order of March 18,
which found that continued detention was necessary to reasonably ensure defendant’s appearance
at subsequent hearings or to prevent him from being charged with a subsequent felony or Class A
misdemeanor. See 725 ILCS 5/110-6(j) (West 2022). On appeal, defendant argues his continued
detention was not necessary when the main issue surrounding his dangerousness—his mental
health crisis—had passed and the only way he could obtain necessary services was to be released
from jail. Before addressing the particulars of this case, it is useful to understand the nature of the
Act’s provisions for changes in, or subsequent circuit court review of, orders relating to detention.
¶ 16 A. Alteration of an Order Regarding Detention or Release
¶ 17 We believe our understanding of the applicable statutory provision may be aided
by reviewing the circuit court’s inherent authority to amend its orders, as well as the additional
provisions for changes in status added by the Act. In particular, we feel it is useful to compare the
provision at issue here to similar provisions also contained in the Code concerning the circuit
court’s obligation to review its prior detention-related decisions on an ongoing basis.
¶ 18
. Circuit Court’s Inherent Authority to Alter an Interlocutory Order
¶ 19 An order calling for a party to be detained prior to trial, or released but subject to
conditions, is not stand-alone legal determination, nor is it of lasting duration. Its existence is
entirely subservient to the litigation of the criminal charges that initiated the case. The detention
order seeks to govern the defendant’s status only through the ultimate disposition of the case; after
a defendant is sentenced, the detention order terminates. See [CITATION] (noting that a bail issue was mooted by the defendant’s final judgment of conviction).
Such nonfinal orders have been expressly referred to as “interlocutory.” See Ill. S. Ct. R. 604(h)(1)
(eff. Dec. 7, 2023).
¶ 20 “A court in a criminal case has inherent power to reconsider and correct its own
rulings, even in the absence of a statute or rule granting it such authority,” and the “court’s power
to reconsider and correct its decisions extends to interlocutory *** judgments.” [CITATION]; see [CITATION] (stating the same
proposition with respect to the Code, as amended by the Act). Consequently, the circuit court here
had the authority to revisit and alter its prior detention ruling. The Act, however, has added specific
provisions relating to changes to interlocutory orders for detention and release that supplement the
court’s inherent authority.
¶ 21
. Party’s Authority to Request a Change in Detention or Conditions
¶ 22 Not surprisingly, the Code allows the parties in a criminal case to argue, by way of
motion, for changes to certain orders pertaining to detention or release. For example, either party
may move to change the conditions of pretrial release. [CITATION] (noting
that conditions may not be increased absent a hearing). Where a defendant has been granted pretrial
release for a felony or Class A misdemeanor, the State may petition for revocation of release on
the basis that a new offense of the same statute has been committed. [CITATION]. Conspicuous
by its absence, however, is any provision for a defendant to seek release after being detained. This
may be explained by the fact that the Code provides that, even without a motion by the defendant
seeking release, it is always the circuit court’s obligation to continue to review the necessity of
continued detention. There are, in fact, three such provisions concerning review of detention or
conditions at every subsequent court appearance. We now examine each of them to aid in our
understanding of the provision applicable to this case.
¶ 23
. The Code’s Requirements for Ongoing Review of Detention Status
¶ 24 There are three similar provisions in the Code with respect to the circuit court’s
obligation to review detention or release status. For all three, the obligation to revisit the
defendant’s status arises at every subsequent court appearance.
¶ 25 The first provision requires that, when the circuit court releases a defendant on
conditions, it is required to review the continued necessity of those conditions:
“At each subsequent appearance of the defendant before the court, the judge must
find that the current conditions imposed are necessary to reasonably ensure the
appearance of the defendant as required, the safety of any other person, and the
compliance of the defendant with all the conditions of pretrial release. The court is
not required to be presented with new information or a change in circumstance to
remove pretrial conditions.” Id. § 110-5(f-5).
Of note is the last sentence concerning changes in circumstance. See [CITATION],
2024 IL App (1st) 232479, ¶ 44 (noting that no change in circumstances need be shown under
section 110-5(f-5)). As we will see, this express statement—that no “new information or a change
in circumstance” must be shown to seek the removal of conditions—is not mirrored in the other
two statutory sections concerning ongoing review of detention.
¶ 26 The second provision relates to review of detention status when a defendant is
initially released but later detained after that release has been revoked:
“At each subsequent appearance of the defendant before the court, the judge must
find that continued detention under this Section is necessary to reasonably ensure
the appearance of the defendant for later hearings or to prevent the defendant from
being charged with a subsequent felony or Class A misdemeanor.” 725 ILCS 5/110-
(j) (West 2022).
Here, defendant was initially released on conditions and then detained following revocation of his
release. Consequently, the circuit court’s subsequent review responsibilities in this case are
dictated by section 110-6(j).
¶ 27 Finally, the third provision requires a similar review of the continued necessity of
detention of defendants who were detained at the initial detention hearing:
“At each subsequent appearance of the defendant before the court, the judge must
find that continued detention is necessary to avoid a real and present threat to the
safety of any person or persons or the community, based on the specific articulable
facts of the case, or to prevent the defendant’s willful flight from prosecution.”
Id. § 110-6.1(i-5).
In other words, where a defendant is initially detained, the circuit court’s obligation to review the
necessity of detention at future court dates is dictated by section 110-6.1(i-5). See id.; [CITATION] Here, defendant was not initially detained; he was
released with conditions and later detained following revocation of his release. Consequently,
section 110-6.1(i-5) does not apply to him.
¶ 28 A statute should be evaluated as a whole, and each provision must be construed in
connection with every other relevant section. [CITATION] Comparing and contrasting these three similar provisions gives some
insight into the meaning of each. Pertinent here is the fact that, as previously noted, only section
110-5(f-5) provides that the “court is not required to be presented with new information or a change
in circumstance to remove pretrial conditions.” 725 ILCS 5/110-5(f-5) (West 2022). “ ‘When the
legislature includes particular language in one section of a statute but omits it in another section
of the same statute, courts presume that the legislature acted intentionally and purposely in the
[SEGMENT 21]
inclusion or exclusion [citations], and that the legislature intended different meanings and
results.’ ” [CITATION] (quoting [CITATION] Because only section 110-5(f-5)
specifically excludes the requirement to show “new information or a change in circumstance” (725
ILCS 5/110-5(f-5) (West 2022)), we conclude that such a showing is required for relief under
section 110-6(j) or section 110-6.1(i-5).
¶ 29 This is not a surprising conclusion. If a court has found that a defendant qualifies
for detention and no new information or change in circumstances is presented, it makes little sense
to think that court would reverse its prior ruling for no particular reason. The situation is different
when dealing with the conditions imposed on a released defendant, as conditions may be shown
to be lacking in one respect or another; they may be too stringent, too loose, or perhaps
unnecessary. The Code, as amended by the Act, simply recognizes that a court must continue to
manage conditions of pretrial release in the pretrial period regardless of any change in
circumstances. A decision to detain, however, requires no ongoing management by the court, and
there will likely be no reason to revisit it unless circumstances have changed or new information
has come to light.
¶ 30 B. Analysis of This Case
¶ 31 As noted above, a circuit court always possesses the inherent authority to change
its interlocutory rulings. However, we proceed with the understanding that a circuit court’s review
of the need for a defendant’s continued detention under section 110-6(j) would require the
defendant to demonstrate some “new information or a change in circumstance” in order to
demonstrate a right to a change in detention status. See id. § 110-6(j).
¶ 32
. Standard of Review
¶ 33 We review a circuit court’s detention order under an abuse of discretion standard.
[CITATION], ¶ 35. “ ‘An abuse of discretion occurs when the
circuit court’s decision is “arbitrary, fanciful or unreasonable,” or where “no reasonable person
would agree with the position adopted by the [trial] court.” ’ ” [CITATION], ¶ 10 (quoting [CITATION], ¶ 9, quoting [CITATION]). This discretionary standard applies to all aspects of detention,
whether resulting from an initial petition to deny pretrial release or a petition to revoke pretrial
- 10 - release. See [CITATION].
¶ 34
. Circuit Court’s Continued Detention Order
¶ 35 The appeal in this case is not from the circuit court’s January 4, 2024, revocation
order but from its March 18 order finding the necessity for continued detention under section
110-6(j). As explained above, the Code required defendant to present new information or a change
in circumstances to demonstrate a right to a change in his detention status. Here, defendant argued
some of the same reasons for release offered at the original detention hearing: that he lived well
outside Macoupin County in Luka, Illinois; that he suffered from sleep apnea; and that he would
comply with conditions if were to be given his pretrial release. However, he also offered up some
new information: that the mental health crisis that led to his detention had stabilized, that mental
health services for his continued recovery were not available in the jail, and that the CPAP machine
used to address his sleep apnea was not functioning and could not be fixed while he was in jail.
¶ 36 Because defendant presented the court with new information and/or a change in
circumstances, we must review for an abuse of discretion the circuit court’s decision that
defendant’s continued detention was necessary to reasonably ensure his appearance at later
hearings or to prevent him from being charged with a subsequent felony or Class A misdemeanor.
See 725 ILCS 5/110-6(j) (West 2022). It has been held that section 110-6.1(i-5)’s parallel
provision for review does not require a new evidentiary hearing, nor does it “prescribe a standard
of proof or place a burden of proof on any party.” [CITATION]. Section 110-6.1(i-5) has also been interpreted to mean that the “continued detention” decision is
the same as the initial detention decision but under a “less demanding standard.” 725 ILCS
5/110-6.1(i-5) (West 2022). We believe that the same observations are true with respect to section
- 11 - 110-6(j), the provision at issue here. The only difference between the two provisions is the type of
misconduct to be guarded against by the imposition of conditions (i.e., a threat to safety under
section 110-6.1(i-5), versus commission of a felony or Class A misdemeanor under section 110-
6(j)).
¶ 37 We note, however, that review of the necessity for continued detention under
section 110-6(j) cannot, as a practical matter, be undertaken without reference to the reasons for
the original detention decision. Consequently, while section 110-6(j) does not provide for the
circuit court to simply scrutinize the merits of the earlier detention, it does permit the court to
determine whether that decision, viewed against a change in circumstances or new information,
remains appropriate in the particular case in question. It has been suggested that, on appeal from
an order finding a need for continued detention, the reviewing court lacks jurisdiction to review
the original detention decision. [CITATION], ¶¶ 29-30. However, the original
detention order is always the context against which a subsequent review must be measured. It is
the baseline from which to assess the significance of any alleged change in circumstances or new
information.
¶ 38 In this case, defendant was granted pretrial release on December 17, 2023, subject
to the following conditions relevant here: (1) that he not enter the 900 block of Johnson Street in
Carlinville, Illinois, and (2) that he not violate any criminal statute of any jurisdiction. The record
is clear that defendant conspicuously violated two core conditions of his earlier release. This
episode was more than a minor misstep, and it looms large in determining whether releasing
defendant on conditions again would adequately prevent him from reoffending. Defendant’s
extensive criminal history also remains a factor that the circuit court rightly considered and
accounted for.
- 12 - ¶ 39 As for defendant’s argument that his mental health crisis has “stabilized” since the
time of the January 3 incident, the record gives little detail in support of this contention.
Furthermore, while it is undoubtedly true that defendant’s mental health needs could be better
addressed were he out of custody, that fact does not obviate the concern that his release on
conditions has once proven to be ineffective in guarding against reoffending. It is also unclear
why, if defendant was permitted to bring a CPAP machine into the jail, it was necessary that he
(rather than a friend or family member) must personally attend to its repair or replacement. The
“new information” or changes in circumstance argued by defendant provide a weak basis to depart
from the original detention decision.
¶ 40 Consequently, we conclude that the circuit court did not abuse its discretion in
finding that defendant’s continued detention was necessary.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, we affirm the circuit court’s judgment.
¶ 43 Affirmed.
- 13 - ```plaintext
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Macoupin County, No. 23-CF-
; the Hon. Joshua A. Meyer, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Manuela Hernandez,
for of State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
- 14 -
```
2024 IL App (4th) 240321
FILED
May 28, 2024
NO. 4-24-0321 Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
RICHARD D. ROMINE, ) No. 23CF345
Defendant-Appellant. )
) Honorable
) Ryan M. Cadagin,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Justices Steigmann and Lannerd concurred in the judgment and opinion.
OPINION
¶1 Defendant Richard D. Romine appeals the trial court’s February 5, 2024, order
denying him pretrial release pursuant to article 110 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/art. 110 (West 2022)), as amended by Public Act 101-652, § 10-255 (eff. Jan.
[SEGMENT 22]
1, 2023), commonly known as the Pretrial Fairness Act (Act). See Pub. Act 102-1104, § 70 (eff.
Jan. 1, 2023) (amending various provisions of the Act); [CITATION], ¶ 52
(setting the Act’s effective date as September 18, 2023). Defendant argues that the court erred in
detaining him pending trial for killing his mother, Donna Romine, in April 2023 because the State
failed to prove by clear and convincing evidence that he was a danger to the community and that
no combination of release conditions could mitigate the danger. Because the court did not abuse
its discretion in finding the State had met its burden of proof, we affirm. ¶2 I. BACKGROUND
¶3 The following allegations are taken from the common-law record and the transcript
of the February 5, 2024, detention hearing. Transcripts of the earlier proceedings are not included
in the record on appeal.
¶4 Defendant formerly owned a shooting range in Sangamon County, where he trained
more than 200 law enforcement officers on the use of firearms and the requirements of a
“concealed carry” permit. Before the events of this case, defendant had no criminal history other
than an arrest for a misdemeanor that was never charged. Defendant lived with Donna for almost
all his life; she reportedly suffered from bipolar disorder and had early signs of dementia.
¶5 According to defendant, Donna had a tendency to lash out, and on this occasion in
April 2023, Donna attempted to stab him. She grazed his arm, then attempted to stab him again, at
which point he drew a concealed firearm and shot her once in the head. Defendant’s friends later
said that he and Donna had been feuding because he believed she had stolen money from him.
After killing Donna, defendant left the scene.
¶6 On April 27, 2023, the police went to Donna’s house to check on her welfare after
receiving multiple calls from her friends saying that she had not been heard from recently and that
defendant might have been involved. It is unclear from the record how much time elapsed between
Donna’s death and the welfare check. No one answered the door at Donna’s house, so the police
called defendant, who told them that Donna was alive and well and that they should knock on a
particular window to get her attention. After the officers’ attempt was unsuccessful, they called
him again. He informed them that he could not drive to Donna’s house to let them in because he
was intoxicated, and he refused to accept assistance to get there. After he hung up, he tried to
destroy his phone.
¶7 The police looked in the window again and saw what appeared to be a human body
on the floor. They entered the house and discovered Donna with a pillow over her head and a single
gunshot wound. The police tracked defendant to an address in Springfield and pursued his vehicle
with their lights and sirens on, but defendant did not pull over until he reached the driveway of
another residence, running at least two red lights in the process. Defendant had a loaded AR-style
rifle within reach and was on the phone with an officer he had trained; the officer told him to
remove the magazine from the rifle and throw it out the car window, which defendant did. He then
tried to ingest a large number of pills, but the officers intervened. After defendant was arrested, he
told the police that his mother had likely been killed by someone named “John,” who defendant
suspected was trying to commit a burglary.
¶8 The State charged defendant with first degree murder (720 ILCS 5/9-1(a) (West
2022)), concealment of a homicidal death (id. § 9-3.4(a)), aggravated unlawful use of a weapon
(id. § 24-1.6(a)(1), (3)(A)), and aggravated fleeing and eluding a police officer (625 ILCS
5/11-204.1(a)(4) (West 2022)). The trial court set defendant’s bail at $2 million. Defendant could
not post the required $200,000 bail deposit, so he filed a motion to reduce his bail, which the court
denied. While defendant was detained, the Act took effect and abolished monetary bail in Illinois.
See [CITATION], ¶ 52.
¶9 In February 2024, defendant moved for reconsideration of his pretrial detention
under the Code; the State responded by filing a petition to deny him pretrial release on the grounds
of dangerousness and willful flight. See 725 ILCS 5/110-6.1(a)(1.5), (8) (West 2022). The trial
court proceeded to a hearing on the petition, at which the State and defendant proffered evidence
of the above allegations, including photographs of the crime scene that are not contained in the
record on appeal. The court denied defendant pretrial release and entered a written detention order
summarizing its findings.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 In ordering a defendant detained on dangerousness grounds, the trial court must
find that the State has met its burden of proving three elements by clear and convincing evidence:
(1) “the proof is evident or the presumption great that the defendant has committed an offense,”
(2) “the defendant poses a real and present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the case,” and (3) “no condition or
combination of conditions *** can mitigate *** the real and present threat to the safety of any
person or persons or the community.” Id. § 110-6.1(e)(1)-(3). We review the trial court’s decisions
regarding pretrial release for an abuse of discretion. [CITATION], ¶ 13, pet. for leave to appeal pending, No. 130626 (filed Apr. 19, 2024). “An abuse of discretion
occurs when the [trial] court’s decision is arbitrary, fanciful or unreasonable or where no
reasonable person would agree with the position adopted by the [trial] court.” (Internal quotation
marks omitted.) Id.
¶ 13 Defendant briefly addresses the first element in his notice of appeal, stating:
“Defendant is asserting the affirmative defense of self-defense. A deadly weapon (knife) was
recovered which supports Defendant’s affirmative defense. The State cannot prove by clear and
convincing evidence that the proof is evident or the presumption great that Defendant committed
the offense of first-degree murder.” Under Illinois law, the use of deadly force in one’s defense is
governed by the following standard:
“A person is justified in the use of force against another when and to the extent that
he reasonably believes that such conduct is necessary to defend himself or another
against such other’s imminent use of unlawful force. However, he is justified in the
use of force which is intended or likely to cause death or great bodily harm only if
he reasonably believes that such force is necessary to prevent imminent death or
great bodily harm to himself or another, or the commission of a forcible felony.”
ILCS 5/7-1(a) (West 2022).
See id. § 7-14 (“A defense of justifiable use of force *** is an affirmative defense.”). When this
affirmative defense is raised by the evidence at trial, the State must prove a lack of justification
beyond a reasonable doubt to obtain a conviction. See id. § 3-2.
¶ 14 This court has not yet addressed when, if ever, a defendant’s assertion of an
affirmative defense before trial can affect the State’s burden of proof on the first element at a
detention hearing. However, defendant makes no effort to address the statutory standard in his
notice of appeal or supporting memorandum, and that standard requires more than just evidence
that another person threatened to use unlawful force. See [CITATION], ¶ 35 (“[T]o obtain a jury instruction on self-defense, a defendant must establish some evidence of
six factors ***.”). Rather, defendant focuses on his claim of self-defense as it pertains to the
elements of dangerousness and conditions of release, so we will do the same. See [CITATION],
¶ 13 (declining to reach an undeveloped argument raised in a notice of
appeal).
¶ 15 Defendant argues that the State failed to establish his dangerousness because,
although he shot his mother, “[t]here is no evidence or even a theory that he poses a threat to any
other person or the community at large.” Defendant then cites [CITATION].
231753, ¶ 18, for the proposition that “bare allegations that [the] defendant has committed a violent
offense are not sufficient to establish th[e] element” “that no condition or combination of
conditions could mitigate the threat posed by [the] defendant” (id. ¶ 17 (citing 725 ILCS
5/110-10(b) (West 2022)). In [CITATION], the State relied only upon “a conclusory statement” with “no
evidence to support that conclusion” and “at no point referenced or discussed *** conditions or
section 110-10(b) of the Code.” Id. The appellate court concluded that “[i]f the base allegations
that make up the sine qua non of a violent offense were sufficient on their own to establish this
element, then the legislature would have simply deemed those accused of violent offenses
ineligible for release.” Id. ¶ 18. We agree with [CITATION] to the extent that it held a bare consideration
[SEGMENT 23]
of the defendant’s dangerousness, with absolutely no consideration of possible conditions of
release, cannot justify pretrial detention under the Act’s three-element framework. [CITATION],
¶ 18 (“[T]he fact that a person is charged with a detainable
offense is not enough to order detention, nor is it enough that the defendant poses a threat to public
safety.”).
¶ 16 However, defendant appears to believe that a single violent offense can never
justify pretrial detention when “it was not the result of a pattern of abuse or criminal behavior.” In
making this argument, defendant is subtly attempting to extend the express holding of [CITATION], in
which the appellate court found no error in the trial court’s consideration of the dangerousness
element but reversed based on the trial court’s consideration of the third element: conditions of
release. See [CITATION], ¶¶ 14-15 (“Defendant’s behavior as alleged, at a
bare minimum, was dangerous, and such behavior poses a threat to those around him even if he
did not intend any harm.”). Of course, dangerousness and conditions of release are two sides of
the same coin; the nature and severity of the threat necessarily determine the nature and severity
of the conditions that could—or could not—mitigate the threat. Compare 725 ILCS 5/110-6.1(g)
(West 2022) (listing considerations for determining dangerousness) with id. § 110-5(a) (listing
similar considerations for determining conditions of release).
¶ 17 In this sense, defendant’s argument has at least some basis in [CITATION], ¶ 18 (“This is not to say that alleged facts stating the basic elements of an offense
are not relevant or are not part of the proof that no conditions could mitigate the threat posed by a
defendant. But more is required.”). Here again, we agree with the proposition that “more is
required” only to an extent; an untried indictment or other charging instrument triggers the State’s
right to file a verified petition to deny pretrial release but has a different purpose altogether; it
needs only to present the most bare and conclusory facts necessary to state an offense. The full
picture of the underlying events, however, may be relevant to the trial court’s detention decision.
¶ 18 For instance, count I of the complaint in the present case charges that “defendant,
without lawful justification, and with the intent to kill or do great bodily harm to Donn[a] Romine,
personally discharged a firearm, and shot Donna Romine in the head, causing the death of Donna
Romine.” See 720 ILCS 5/9-1(a)(1) (West 2022). This allegation may provide the information
necessary to charge the offense in question, but it does not speak to defendant’s future
dangerousness or the possibility of conditions of release, nor is it intended to. See 725 ILCS
5/111-3(a) (West 2022) (specifying the formal requirements of a criminal charge). As such, [CITATION]’s
holding that “more is required” than the allegations in the charging instrument is axiomatic and
should not be read to say more than it does. [CITATION], ¶ 18.
¶ 19 However, the trial court does not simply review the charging instrument when
determining whether to detain the defendant on dangerousness grounds; indeed, the trial court must
go beyond these bare allegations to address “the specific articulable facts of the case.” 725 ILCS
5/110-6.1(g) (West 2022). In doing so, the court may consider “evidence or testimony concerning
*** [t]he nature and circumstances of any offense charged, including whether the offense is a
crime of violence” (id. § 110-6.1(g)(1)), although the trial court’s decision cannot be based
exclusively on this or any other single factor. See id. § 110-6.1(f)(7); [CITATION], ¶¶ 13, 18 (reversing a detention order when, “beyond the nature of the offenses
themselves, the State presented nothing to show that no set of conditions would mitigate the threat
to the victim defendant’s release would present”). Nevertheless, the evidence the court uses to
determine the nature and circumstances of the offense may also shed light on the other statutory
factors governing dangerousness and conditions of release, including those the trial court relied on
here: defendant’s personal history, statements attributed to him, the age and physical condition of
his mother, and his access to firearms. See 725 ILCS 5/110-6.1(g)(1)-(2), (4), (6)-(7); see also id.
§ 110-5(a) (providing that a determination regarding conditions of release shall be made “on the
basis of available information”). This same evidence would not be less probative on the question
of pretrial detention even if it provided the sole basis for the allegations in the charging instrument.
¶ 20 Ultimately, the evidence of a defendant’s charged conduct, even if it took place on
a single occasion, may reflect such a departure from the basic expectations of civil society that it
becomes difficult to predict the defendant’s compliance with court orders—or even societal norms
regarding the safety of others—if the defendant is placed on pretrial release. The presumption in
favor of pretrial release under the Act does not obligate a trial court to release such a defendant in
the hopes that his otherwise spotless record will negate the real and present threat he poses to the
safety of the community as shown by the State’s evidence.
¶ 21 In the present case, defendant does not dispute that he shot his mother, but he claims
that he acted in self-defense because she was approaching him with a knife and had already cut his
arm once. While we agree that his proffered evidence on this point was potentially relevant to his
alleged dangerousness, as well as the question of whether that alleged danger could be mitigated
by conditions of release, his focus on this evidence is myopic. The evidence of his subsequent
conduct, which the trial court properly considered in reaching its decision, paints a different picture
and undermines this characterization of defendant’s conduct. See id. § 110-6.1(g)(1) (providing
that the trial court may consider the “nature and circumstances of any offense charged” (emphasis
added)). The court was not required to accept defendant’s contention that he acted in self-defense
when the record permitted other conclusions concerning his culpability and, by extension, his
potential dangerousness.
¶ 22 It is unclear from the record whether prompt medical intervention might have saved
his mother’s life, but it is evident that defendant abandoned her body rather than calling the
authorities to explain the situation, preserve evidence to support his claim of self-defense, and have
his mother properly laid to rest. Even if defendant was uncertain about the right thing to do, he
could have called one of his many police contacts to ask, as he later did when he wanted to
determine what to do with his loaded rifle. Instead, when the police called him after he left the
house, he lied and said that his mother was alive and well, and then he attempted to destroy his
phone. Had the officers not investigated further, her death would have gone undiscovered even
longer. When police cars pursued defendant with their lights and sirens on, he refused to pull over
and ran red lights, and after the police arrested him, he lied again and said that a burglar named
“John” had likely killed his mother.
¶ 23 Defendant’s actions are not consistent with an innocent mistake or genuine remorse
but a concerted refusal to accept responsibility for conduct he knew was wrong. Defendants on
pretrial release are expected not just to comply with the terms of their release but to be forthright
```plaintext
about their efforts to comply and to accept responsibility for violations, even if they believe those
violations were innocent mistakes. In light of defendant’s repeated efforts to escape responsibility
for what he only now claims was an act of self-defense, the trial court’s conclusion that no
conditions of release could avoid the real and present threat defendant posed to the safety of the
community was within the bounds of reason.
¶ 24 Because the trial court did not abuse its discretion in ordering defendant detained
on dangerousness grounds, we decline to reach defendant’s arguments regarding willful flight.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the trial court’s judgment.
¶ 27 Affirmed.
- 10 -
``` [CITATION]
Decision Under Review: Appeal from the Circuit Court of Sangamon County, No. 23-
CF-345; the Hon. Ryan M. Cadagin, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Peter Sgro, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
- 11 -
NOTICE
IL App (4th) 240390-U
This Order was filed under
FILED
Supreme Court Rule 23 and is May 23, 2024
not precedent except in the
NO. 4-24-0390 Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
[SEGMENT 24]
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Peoria County
KESHAWN J. WILLIAMS, ) No. 24CF148
Defendant-Appellant. )
) Honorable
) Katherine G. P. Legge,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court.
Justices Harris and Lannerd concurred in the judgment.
ORDER
¶1 Held: The circuit court’s decision to detain defendant was not an abuse of discretion.
¶2 Defendant Keshawn J. Williams appeals from the circuit court’s February 23, 2024,
order denying his pretrial release pursuant to the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/110-1 et seq.) (West 2022)), hereinafter as amended by Public Act 101-652 (eff. Jan. 1,
2023), commonly referred to as the Pretrial Fairness Act. Defendant argues that the State failed to
meet its burden of proving by clear and convincing evidence that: (1) the proof is evident or the
presumption great that defendant committed the charged offense, (2) defendant posed a real and
present threat to the safety of any person or persons or the community, based on the specific,
articulable facts of the case, and (3) no condition or combination of conditions could mitigate the
real and present threat posed by defendant. ¶3 We affirm.
¶4 I. BACKGROUND
¶5 Defendant was charged by information with one count of armed robbery, a Class X
felony. Specifically, the information charged that on January 15, 2024, defendant, while armed
with a firearm, took a cell phone from the person or presence of Angel Brendlinger by the use of
force or threatening the imminent use of force. [CITATION] He was later
indicted on this charge.
¶6 A. Petition to Deny Pretrial Release and Hearing Thereon
¶7 On February 23, 2024, the State filed its verified petition to deny pretrial release.
A detention hearing was held the following day, at which the State proffered that, “on January
15th of this year Peoria Police responded to the alley in the 2100 block of West Lincoln on a
ShotSpotter alert,” and upon their arrival, they found Isaiah Sharp and Angel Brendlinger.
“Brendlinger told officers that they had come to purchase a vehicle after setting up the meeting
through Facebook.” She explained:
“When they arrived to the area, a male walked them down the alley to where the
vehicle was allegedly located. When they arrived, a number of people got out of a
waiting car with guns, and they demanded money, and one individual took a cell
phone from her pocket. She said Sharp then produced his own firearm and shot one
of the armed assailants. The others fled.”
According to the State, the individual shot by Sharp died of his gunshot wounds.
¶8 According to the State, the police recovered a security video capturing the incident,
showing Sharp and Brendlinger being walked to the garage by an individual.
“Then a number of armed individuals [got] out of a waiting SUV and [pointed]
guns at Sharp and Brendlinger. It show[ed] an exchange of gunfire between Marcus
Whitehead and Sharp and Marcus Whitehead [fell] to the ground. The armed
assailants, all but one[,] [got] into a Jeep and [fled]. The other [ran] between two
houses.”
¶9 According to the State, the detectives spoke to the owner of the SUV the assailants
got out of, who “told the detectives that he gave the vehicle to Sontarrius Williams [(hereinafter
Sontarrius)] who is this defendant[’s] *** brother. [The owner] had given it to *** [Sontarrius ] to
fix; and *** [Sontarrius] had the key to the vehicle.” Peoria police executed a search warrant at
the home of defendant’s brother and “found keys to the Jeep that was parked in the garage behind
the house.” The keys “matched the Jeep that was seen on the security video of the incident that
drove away the armed assailants. Keys were also found inside the home to the maroon SUV that
was used by the assailants during the incident.” Officers also recovered a home security video
system from Sontarrius’s home, which showed defendant, along with his brother Sontarrius and
Jalyn Branscumb, entering the home just minutes after the robbery.
¶ 10 The State said that Sontarrius was interviewed and “admitted to being present for
the incident but said that he did not participate in the robbery.” He also admitted, “that he was the
person that brought Sharp and Brendlinger down the alley to the garage.” Sontarrius identified
Branscumb and defendant as having participated in the robbery. “He said after the shots were fired,
he drove himself, Branscumb, and the defendant back to his house in the Jeep.” Branscumb was
also interviewed by Peoria police detectives, who told them that Sontarrius “set the whole thing
up.” Branscumb said he was “sitting in the rear passenger side of the maroon SUV” and that he
had a gun that had been given to him by Sontarrius. Branscumb said he “didn’t do anything major
during the incident. He said he just participated.” He also identified defendant as one of the people
who got out of the vehicle with a firearm for the robbery.
¶ 11 After the State’s proffer, defense counsel pointed out that defendant was “only 18
years old” and that “the evidence is very murky as to what exactly his involvement, if anything,
was here.” Defense counsel argued that, although “a video camera showed him with his brother
and another man who were suspects in this matter walking into his brother’s house,” there was no
verification by time stamps. Counsel also argued that no gun was found on defendant and that he
“has never had any adult felonies.” Although defendant had a juvenile case, it was at least five
years ago, and he “successfully completed his juvenile probation.”
¶ 12 Defense counsel stressed that defendant “had no failures to appear” and was
considered a low risk on the Virginia Pretrial Risk Assessment Instrument-Revised (VPRAI-R)
assessment summary. “He doesn’t have anything in his history relating to a gun. He doesn’t have
any history of violence. He doesn’t have anything but this juvenile case which is long ago over.”
Counsel further pointed out that defendant “has a job at OSF” and had “graduated from high
school.” Counsel said that defendant “would live with his mother. And he does not object to being
placed on an electronic monitor until he has his day in court where he can have a full trial on the
facts.”
¶ 13 The State reiterated that Sontarrius, “the defendant’s older brother, admitted to
being the individual who walked the two alleged purchasers down the alley.” He said that
“all four [got] out, [began] pointing firearms at [Brendlinger and Sharp]. They
[stole] a phone from *** Brendlinger demanding money to the point where ***
Sharp then [felt] it necessary that their lives are in danger to pull out his own firearm
and shoot resulting in the death of one of the defendant’s friend, Marcus
Whitehead.”
The State added, “I would very much challenge the characterization of the evidence as not
incredibly strong. The defendant’s own older brother name[d] the defendant as one of the
participants.”
¶ 14 The State said that Sontarrius and Branscumb had “both implicated themselves in
this. It wasn’t them saying, oh, it’s this other guy. They said they were involved. So, this is not
your normal, they were trying to get out of it and blaming someone else. They’re implicating
themselves and putting him as one of the individuals.” Moreover, it added:
“And the fact that just minutes after the incident takes place, their story is
absolutely corroborated by the video which shows all three of the people that
Sontarrius described coming home after the robbery are shown on video. All three
coming into Sontarrius’ home after the robbery.
So, I believe the evidence is overwhelming of the defendant’s guilt.”
¶ 15 The State also argued that defendant posed a danger to the community “given that
he’s apparently the type of individual who had planned an armed robbery. A very cold, calculated
robbery that was set up and planned from the get-go through Facebook. So, we would request the
defendant be detained.” When asked by the circuit court to respond to defense counsel’s statement
regarding electronic monitoring, the State answered:
“I think that the fact is that electronic monitoring would tell us whether the
defendant had done something very dangerous to the rest of the community after
the fact, but it does absolutely nothing to prevent the defendant from, again,
engaging in behavior that would put people in danger. That’s simply an
investigative tool after the fact. It doesn’t prevent the defendant from doing
[SEGMENT 25]
anything to harm the community.”
¶ 16 B. Court Rulings at Hearing
¶ 17 After hearing arguments, the circuit court granted the State’s motion to detain. The
court stated that it had “considered the proffered evidence and argument of both parties, the pretrial
services report as well as the defendant’s age, education, mental and physical condition as well as
employment, criminal history and risk assessment score and after consideration of all the factors
set forth under [section] 110-6.1,” and as a result, it found “that the State has met its burden that
the proof is evident or the presumption is great that this defendant has committed that offense via
the proffered facts.” The court found it very persuasive that defendant was “identified by a brother
as well as a second co-defendant who also made statements against their own interest confessing
to parts of the crime which are very, very serious, armed robbery.” It further found it significant
that all four of the men who exited the car—including defendant—had firearms and “then
proceed[ed] to rob at gunpoint the victim as named here as well as the other victim.” The court
then observed that home surveillance “shows minutes later the defendant as well as the other co-
defendant *** [perhaps] I should say the co-conspirator, the other individuals who are named in
this” “going back to the residence minutes later.”
¶ 18 On the issue of detention, the circuit court noted that defendant had a prior juvenile
“adjudication for residential burglary, unlawful possession of a stolen motor vehicle and resisting
a peace officer.” The court commented, “I’m mindful of the arguments that your probation was
successful in that case. It looks like there was a petition to revoke along the way. You served that
sanction but then otherwise finished your probation successfully.”
¶ 19 It further addressed defense counsel’s comment that defendant resided with his
mother.
“You’ve lived there at that specific residence for about a year. You’ve lived in the
Peoria area your whole life; and that you would return to the same residence upon
any release; that you’re single. You do have a child. Most of your family is in the
area, so you do have, it sounds, like stable family ties to the community and that
your mother—
***
*** And then you are employed, and you do have a diploma from
Richwoods High School. And, of course, the employment and education being very
positive factors in your situation.”
The court then stated that defendant ranked as a moderate risk on the VPRAI-R and had “[n]o
history of psychiatric or substance abuse. You’re not currently on probation, no prior failures to
appear.”
¶ 20 As to whether defendant posed a real and present threat to the safety of any person
or persons or the community based on the specific facts in this case and whether defendant posed
a risk of willful flight, the circuit court acknowledged that it did not consider defendant a flight
risk, but that the charged offense was “extremely serious, armed robbery with a firearm. The
history and characteristics of you as well as anyone to whom their safety would be threatened by
your release.” Although noting that defendant had not targeted a specific person for the crime
charged, the court stated, “it doesn’t matter who that person was. It could be anyone in the
community. If they have something that you or your co-conspirators found of value, that you used
a firearm and threat of force to take that from them against the laws of our state.”
¶ 21 Concerning the use of firearms,
“I don’t know the scenario about how you or your older brother or the rest of these
co-conspirators had access to firearms, but there were a lot of firearms involved.
Almost sounds like every single person in the vehicle, four out of four, had a firearm
and planned to use it against the victims here.”
The court said,
“you were working and living with your mother at the time that you managed to
have access to firearms—you and your co-conspirators—and so I don’t know that
releasing you back to your mother’s house is going to give me any confidence that
you couldn’t go do the same thing.”
¶ 22 Concerning defense counsel’s suggestion of monitoring, the circuit court stated,
“An ankle monitor doesn’t prevent you from going to wherever one goes at
years old and unlawfully finds themselves in possession of a firearm to use in
an armed robbery. So, knowing where you are at any given time wouldn’t prevent
the type of harm that is contemplated here.”
The circuit court further stated:
“[D]ue to the nature and the circumstances of this offense, I’ve reviewed all of these.
The most restrictive that I could impose still does not give me confidence that you
would not present a real and present threat to the safety of any person or persons or
the community based on the very serious allegations here ***.”
The court found that the State had met its burden of proof and granted its petition to detain.
¶ 23 C. Written Order
====== End of Ruling ====== ¶ 24 A written order for detention was entered on February 26, 2024, which found that
defendant had been charged with a detainable offense and that the State had met its burden of
showing the proof was evident or presumption great that defendant committed the charged offense.
The order further provided:
“On 1/15/2024, the Defendant along with four other identified individuals
planned a robbery of two individuals who thought they were buying a vehicle. A
coconspirator, who turned out to be Defendant’s older brother, took the two victims
to a back alley where a vehicle of four males—all four armed with firearms per
surveillance footage including the Defendant—jumped out of the vehicle and
attempted to rob the two [individuals] at gunpoint. During an ensuing scuffle
between the five robbers and two victims, the Defendant was identified as taking
the identified victim’s phone from her person. Shots were fired and one of the
individuals involved in the robbery died as a result. Additional home surveillance
showed [Defendant] and other coconspirators all arriving to a house ‘within
minutes’ of the robbery and shooting, and law enforcement found keys at the house
that were relevant to the vehicles involved. Two coconspirators made inculpatory
statements as to themselves and also implicated Defendant *** as being one of the
four males who waited in the car and jumped out with firearms to rob the two
victims. [Defendant’s counsel] proffered that no firearm was found on Defendant
at the time of his arrest, which was this week approximately a month after the crime
occurred.
The Court finds that the Defendant poses a real and present threat to the
safety of any person or persons or the community, based on the specific, articulable
facts of this case and that no condition or combination of conditions set forth in 725
ILCS 5/110-10 can mitigate the real and present threat for the reasons stated on the
record in open court and incorporated into this Order, and summarized above and
as follows. The nature and circumstances of the offense are very serious here as it
is a crime of violence, involving a firearm, use of that firearm to threaten and cause
serious harm. The type of harm created by the use of firearms in conjunction with
a robbery—violence—expressly played out in this scenario when shots were fired
and one of the individuals involved died. The victims did not appear to be
personally known to Defendant but were randomly selected from the robbery set
up for a vehicle purchase, which indicates a harm to the community at large. The
Defendant is only l8 years of age, which is taken into account by the Court,
however, he was previously adjudicated in juvenile court for residential burglary,
unlawful possession of a stolen motor vehicle, and resisting a peace officer, for
which probation was revoked once but after a resentencing to jail and probation,
Deft did complete successfully in October 2022. The VPRAI[-R] rates Defendant
a moderate risk. While the Court is mindful of Defendant’s youth and notes he is
currently employed, there is no combination of conditions that can mitigate the
threat he poses to the community. He lived at home when he committed this offense
and was inexplicably able to access a firearm to use in this robbery, even though
the law forbids his mere possession of a firearm based on his juvenile history. In
addition, the firearm he used in the commission of this offense is unaccounted for
by the evidence tendered to the Court, so even release back to his mother’s home
- 10 - on the most restrictive conditions does not satisfy the Court that conditions would
be sufficient to keep the community safe.”
¶ 25 Defendant filed his notice of appeal pursuant to [CITATION]
(eff. Dec. 7, 2023) on March 1, 2024, raising three issues with the noted explanations. First,
defendant stated that “[t]he State failed to meet its burden of proving by clear and convincing
evidence that the proof is evident or the presumption great that defendant committed the offense(s)
charged.” Defendant then added, “There is almost no evidence that the Defendant committed the
crime(s) for which he stands accused.” Second, defendant asserted that the State “failed to meet
its burden of proving by clear and convincing evidence that defendant poses a real and present
threat to the safety of any person or persons or the community, based on the specific, articulable
[SEGMENT 26]
facts of the case.” Defendant further explained, “This Defendant had a job, is a high school
graduate, and [has] a scant criminal record. He is and was always willing to be placed on electronic
monitor[ing].”
¶ 26 Finally, defendant stated that the State had “failed to meet its burden of proving by
clear and convincing evidence that no condition or combination of conditions can mitigate the real
and present threat to the safety of any person or persons or the community, based on the specific,
articulable facts of the case, or defendant’s willful flight.” For this ground, he provided no further
explanation. This latter issue, however, was addressed in defendant’s memorandum filed with this
court pursuant to [CITATION].
¶ 27 This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 Section 110-6.1(e) of the Code provides that all criminal defendants are presumed
eligible for pretrial release. 725 ILCS 5/110-6.1(e) (West 2022). A defendant may be denied
- 11 - release only if, upon verified petition, the State proves by clear and convincing evidence at a
detention hearing that (1) the proof is evident or the presumption great the defendant committed a
detainable offense, (2) the defendant poses a threat to the safety of the community or any person
in the community, and (3) no combination of conditions can mitigate the threat to the safety of the
community. Id. §§ 110-6.1(a), (e)(1)-(3).
¶ 30 We review a circuit court’s decision to detain a defendant under an abuse of
discretion standard of review. [CITATION], ¶ 35. “ ‘An abuse of
discretion occurs when the circuit court’s decision is “arbitrary, fanciful or unreasonable,” or
where “no reasonable person would agree with the position adopted by the [circuit] court.” ’ ”
[CITATION], ¶ 10 (quoting [CITATION], ¶ 9, quoting [CITATION], 239 Ill. 2d 215, 234 (2010)). On this point, we briefly note
that defendant has challenged our application of the abuse of discretion standard and advocated
for a de novo review, relying on the special concurrence in [CITATION], ¶¶ 98-100 (Ellis, J., specially concurring). However, we decline defendant’s invitation
and continue to adhere to the analysis set forth in our recent decision in Morgan.
¶ 31 A. Commission of the Offense
¶ 32 Defendant first contends the State failed to meet its burden of proving by clear and
convincing evidence that the proof was evident or the presumption great that he committed the
offense charged. In his notice of appeal, defendant elaborated that there was “almost no” evidence
that he committed the crime. However, he did not address this contention in his supporting
memorandum. Since defendant complied with the minimum requirements of Illinois Supreme
Court Rule 604(h)(2) (eff. Dec. 7, 2023), we will address this point on appeal.
- 12 -
====== End of Document ====== ¶ 33 We note that there was significant evidence presented at the detention hearing
concerning whether defendant had committed the charged offense. Specifically, two individuals
who also participated in the alleged crime identified defendant as being present and a participant.
One of these individuals was defendant’s older brother. Branscumb said that defendant exited the
SUV during the robbery armed with a handgun. A home security video also showed defendant and
two others who were involved in the alleged act returning to defendant’s brother’s home shortly
after the alleged robbery took place. The circuit court found this evidence convincing and
concluded that the State had satisfied its burden of proving through clear and convincing evidence
that the proof was evident or the presumption great that defendant committed the offense charged.
We find no abuse of discretion.
¶ 34 B. Real and Present Threat
¶ 35 Second, defendant argues the State likewise failed to prove by clear and convincing
evidence that he posed a real and present threat to the safety of any person or persons or the
community, based on the specific, articulable facts of the case. In his notice of appeal, he explained
that he “had a job” and “is a high school graduate,” and further that he had “a scant criminal
record.” He further stated that he “is and was always willing to be placed on electronic
monitor[ing].” Here, the court considered all the arguments and evidence and, based on its review,
found that defendant constituted a threat to the community.
¶ 36 According to the circuit court, the history and characteristics of defendant presented
a risk to the community. The court had earlier noted defendant’s juvenile record, which included
charges of residential burglary and unlawful possession of a stolen vehicle. Although noting that
defendant had not targeted a specific person for the crime charged, the court stated, “it doesn’t
matter who that person was. It could be anyone in the community. If they have something that you
- 13 - or your co-conspirators found of value, that you used a firearm and threat of force to take that from
them against the laws of our state.” Moreover, the court stated, “The victims did not appear to be
personally known to Defendant but were randomly selected from the robbery set up for a vehicle
purchase, which indicates a harm to the community at large.” For these reasons, the court
concluded defendant constituted a threat to the community. We find no abuse of discretion.
¶ 37 C. Conditions Mitigating Clear and Present Risk
¶ 38 Third, defendant contends that the State failed to meet its burden of proving by
clear and convincing evidence that no condition or combination of conditions could mitigate the
real and present threat presented or his willful flight. Although defendant offered no explanation
on this issue in his notice of appeal, he did file a Rule 604(h)(2) memorandum with this court
addressing the issue.
¶ 39 The circuit court addressed each of defendant’s contentions as to potential
conditions that might mitigate any threat he posed to the community. Concerning defendant’s
suggestion that he reside with his mother upon release, the court stated,
“you were working and living with your mother at the time that you managed to
have access to firearms—you and your co-conspirators—and so I don’t know that
releasing you back to your mother’s house is going to give me any confidence that
you couldn’t go do the same thing.”
Concerning the potential use of monitoring, the court stated:
“An ankle monitor doesn’t prevent you from going to wherever one goes at
years old and unlawfully finds themselves in possession of a firearm to use in
an armed robbery. So, knowing where you are at any given time wouldn’t prevent
the type of harm that is contemplated here.”
- 14 - The court’s comments concerning the specific usefulness of electronic monitoring echo those we
made in [CITATION], ¶ 26.
¶ 40 In its conclusion on the issue of conditions, the circuit court stated that it had
considered “the nature and the circumstances of this offense,” and that the “most restrictive”
condition the court could impose did not give it “confidence that [defendant] would not present a
real and present threat to the safety of any person or persons or the community based on the very
serious allegations here.” As the record shows, the court considered the arguments presented and
rejected them, deciding that none of the proffered conditions mitigated the threat posed. We find
no abuse of discretion.
¶ 41 Additionally, we note that on the issue of whether any conditions could mitigate
the threat, defendant cites [CITATION], ¶ 17, for the proposition that
the State was required to proffer more than just the nature of the offense charged in support of its
claim that defendant was a threat and that no conditions could mitigate that threat. As we recently
stated in [CITATION], ¶ 38:
“We decline to accept any reading of [CITATION] and its progeny that would
conclusively prohibit a court, under the right circumstances, from relying solely on
the nature of the charges to conclude that conditions of release would be inadequate
to mitigate the threat posed by a defendant. For our purposes, however, we conclude
that the circuit court’s thoughtful and thorough considerations of the effectiveness
of conditions of release is sufficient to distinguish this case from [CITATION] ***.”
¶ 42 The same distinction holds true here. The circuit court’s analysis makes clear that
it considered more than simply the nature of the charged offense. Moreover, the court specifically
- 15 - addressed each of defendant’s arguments as to potential conditions that might warrant his release,
i.e., release to his mother’s custody and release with monitoring.
¶ 43 III. CONCLUSION
¶ 44 For the reasons stated, we affirm the circuit court’s denial of pretrial release.
¶ 45 Affirmed.
- 16 -
2024 IL App (1st) 24-0550-U
Order filed: May 16, 2024
FIRST DISTRICT
FOURTH DIVISION
No. 1-24-0550B
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 24600068601
)
ORONDE HARDY, ) Honorable
) Ruth Gudino,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
[SEGMENT 27]
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justice Hoffman concurred in the judgment.
Justice Ocasio specially concurred.
ORDER
¶1 Held: We affirm the circuit court’s order that defendant should be detained pretrial over
his argument that the State did not establish by clear and convincing evidence that
no condition or combination of conditions would mitigate the threat to safety which
he posed.
¶2 Defendant, Oronde Hardy, appeals from an order granting the State’s petition to deny his
pretrial release pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/110-1 et seq. (West 2022)), as amended by Public Act 101-652 (eff. Jan. 1, 2023),
commonly known as the Pretrial Fairness Act (Act).1 On appeal, defendant argues that the circuit
While commonly known by these names, neither the Illinois Compiled Statutes nor the forgoing
public act refer to the Act as the “Safety, Accountability, Fairness and Equity-Today” Act, i.e., SAFE-T No. 1-24-0550B
court erred in its determination that no condition or combination of conditions could mitigate the
real and present threat to the safety of any person or persons or the community, based on the
specific, articulable facts of the case, or defendant’s willful flight. For the following reasons, we
affirm.
¶3 Defendant was arrested on February 26, 2024 and charged, by felony complaints, with first
degree murder and attempted first degree murder. The complaints alleged that defendant
committed the offense of first degree murder when he “without lawful justification, stabbed D.S.
with a knife, knowing said act would cause the death of D.S. thereby causing the death of D.S.”
and the offense of attempt first degree murder when he “without lawful justification, stabbed V.S.
with a knife, knowing said act would cause death or great bodily harm to V.S., thereby causing
great bodily harm to V.S.”
¶4 On February 29, 2024, the State filed a verified petition to deny defendant pretrial release,
pursuant to sections 5/110-2, and 6.1(a)(1.5) of the Code. 725 ILCS 5/110-2, 6.1(a)(1.5) (West
2022). Therein, the State generally alleged that the defendant is charged with a detainable
offense—first degree murder—and that defendant's pretrial release posed a real and present threat
to the safety of any person or persons or the community, based on the specific articulable facts of
the case, and that no less restrictive conditions would avoid that threat.2
¶5 The circuit court held a hearing on the State’s petition on March 1, 2024.
Act, or the “Pretrial Fairness Act.” See [CITATION], ¶ 4 n. 1. Certain provisions of the
legislation in question were amended by Pub. Act 102-1104 (eff. Jan. 1, 2023). See [CITATION], ¶ 4. The supreme court initially stayed the implementation of this legislation but vacated that stay
effective September 18, 2023. Id. ¶ 52.
As to the specific facts of the incident, the State directed to “SEE ATTACHED ADDENDUM.”
The record on appeal does not contain an addendum.
No. 1-24-0550B
¶6 The State proffered that on February 26, 2024 around 3:52 p.m. at a public park located at
east 15th Street and Hanover in Chicago Heights, Cook County, Illinois, the victims, D.S., a 13-
year-old male, and his brother, V.S., 15 years old, (collectively, victims) were at the park with
their siblings, Witness 1, a 21 year-old female; Witness 2, a 12-year-old male; and Witness 3, an
8 year-old male. Defendant, 53 years old, was also at the park with his wife and three minor
children. The victims were on a swing set and Witnesses 1, 2, and 3 were under a covered pavilion.
Witness 1 observed defendant staring at the victims and called the victims over to her. As the
victims walked toward the pavilion, defendant followed.
¶7 Witness 1 verbally confronted defendant about staring at the victims and “mean mugging”
her and her brothers. Defendant responded by stating that he would “kick their a**” and called
Witness 1 a “fat b***.” Thereafter, the victims engaged in a verbal argument with defendant.
Witness 1 put her hands in front of the victims to pull them back from advancing toward defendant.
Witness 1 looked at the individual who she believed was defendant’s wife to ask for help.
¶8 Defendant struck Witness 1 in her left shoulder area. D.S. and then V.S. punched defendant
in the face. Defendant pulled out a switchblade knife from his pocket and stabbed D.S. once in the
upper left arm. D.S. punched defendant with his right arm. V.S. struck defendant, knocking
defendant to the ground, and then got on top of defendant. Defendant stabbed V.S. at least once in
the back. V.S. stood up and attempted to run away from defendant. Defendant chased V.S. with
the knife in hand, which was captured on a Ring camera from across the street.
¶9 Thereafter, “[d]efendant catches up to [D.S.], and defendant is holding [V.S.] down when
Witness 1 approaches and takes out a box cutter and runs up to the defendant and stabs the
defendant in the back repeatedly to get the defendant off of [V.S.].” Defendant got off of V.S. and
Here is the processed court ruling with court ruling citations removed and replaced as instructed:
No. 1-24-0550B
walked toward his vehicle with his wife and three children. They drove off and left the park without
rendering any type of aid.
¶ 10 Police officers and emergency medical services (EMS) arrived at the park. D.S. was found
rolling around on the ground and was generally unresponsive to questions from officers and EMS.
The victims were transported to the hospital by EMS. D.S. died as a result of the injuries; the stab
wound struck an artery in his shoulder. An autopsy ruled a single stab wound as the cause of death,
and the manner homicide. V.S. was treated for a stab wound to the back and released.
¶ 11 Witness 4, unrelated to the individuals involved, observed the altercation from inside of a
car at the park. She took a picture of defendant’s car and license plate as he left the park, which
she provided to responding officers. Witness 5, also unrelated, lived in a home across the street
from the park and observed the altercation. Witness 5 gave a description of defendant and his
vehicle to responding officers. Witnesses 4 and 5 described defendant as the aggressor and that he
stabbed the minors.
¶ 12 That same day, officers located defendant at a motel in Monee, Illinois and placed him into
custody. After the officers gave defendant Miranda warnings, defendant made statements in which
he claimed he was acting in self-defense, but also admitted that he referred to Witness 1 as a “fat
b***.” Detectives executed a search warrant on the motel room and recovered a folding
pocketknife from the bathtub that appeared to have blood on it. Detectives also found what
appeared to be blood in the bathtub as if someone was attempting to clean the knife.
¶ 13 Witness 1 and V.S. positively identified defendant in a photo array as the individual who
stabbed her brothers. V.S. also positively identified a picture of the knife recovered from
defendant’s motel room. Witnesses 2 and 3 also made statements corroborating that defendant was
the aggressor.
====== End of Processed Court Ruling ====== No. 1-24-0550B
¶ 14 As to defendant’s criminal background, the State proffered that, at the time of the
altercation, defendant was on probation for aggravated fleeing and eluding. In 2007, defendant
was convicted of forgery and sentenced to four years’ imprisonment. In 2004, defendant was
convicted of armed robbery without a firearm and sentenced to eight years’ imprisonment. In 2001,
defendant was convicted of witness intimidation and sentenced to two years’ imprisonment.
¶ 15 The State argued that defendant was a danger to members of the community, including
V.S. and the surviving witnesses. Defendant is a convicted felon for the violent offense of armed
robbery and for intimidating a witness. The State also argued that there are no condition or
combination of conditions that would mitigate the risk that defendant poses in that “[l]east
restrictive conditions or combination thereof amount to nothing more than admonishments or
attaching bracelets to the defendant’s ankle, which he can remove without any repercussion.”
Further, defendant committed these acts while on probation after being admonished not to commit
any additional offenses.
¶ 16 Tiffany Johnson, an individual from pretrial services spoke as to defendant’s pretrial safety
assessment (PSA): “New violent criminal activity flag, yes. New Criminal Activity Scale 4. Failure
to Appear Scale 3. The PSA coincides with supervision Level 3.” Johnson answered in the
[SEGMENT 28]
affirmative to the court’s question: “And that would be maximum conditions, correct?”. Johnson
explained that a violent offense flag, means that defendant has a prior conviction of a violent
offense. The PSA further noted that defendant was currently on probation for aggravated fleeing.
In response to a question by the court, Johnson stated that defendant had a 2013 failure to appear.
¶ 17 Defense counsel began by describing the Ring camera footage, explaining that a
“commotion” was captured, but that it is hard to tell exactly what is happening. Defense counsel
then noted that defendant told the police officers that he was acting in self-defense. He was stabbed
No. 1-24-0550B
in the back by Witness 1 and received treatment for stab wounds to his back and arms and injuries
to his face. Further, defense counsel maintained that the witnesses’ statements vary in the precise
order of events that the State alleged occurred.
¶ 18 As for mitigation, defense counsel proffered that defendant, 50 years old, lived at his
current address for 30 years and is a lifelong resident of Cook County. He has been married for 12
years and lives with his wife, who was eight months pregnant, and his three children, five, six, and
seven years old. He graduated high school, received an associate degree, and has two jobs. He is
an active member of his church.
¶ 19 Defense counsel acknowledged that the court would have concerns over the danger
defendant posed but contended that electronic monitoring would be a condition that could be
imposed. Defendant only had one failure to appear from 2013 for a traffic offense. At the time it
was issued, he was in custody.
¶ 20 The court concluded that the State had shown by clear and convincing evidence that
defendant was charged with the detainable offenses of first degree murder of D.S. and attempted
first degree murder of V.S. and that the proof was evident and the presumption great that defendant
committed those offenses. The court explained that “defendant, while armed with a switchblade,
stabbed [D.S.] in the artery, causing his death by a single stab wound, and stabbed [V.S.] in the
back.”
¶ 21 The circuit court next concluded that defendant posed a real and present threat to the safety
of any person or persons or the community. The court found that defendant poses a threat to V.S.
and the witnesses in this case. In addition to those individuals, the court found that defendant posed
a risk to the park community, the neighborhood community, and the community at large in Chicago
Heights. The circuit court addressed the nature and the circumstances of the offenses charged and
No. 1-24-0550B
emphasized that defendant was the initial aggressor in a crime of violence with a weapon that
occurred in a public park during the day.
¶ 22 In considering defendant’s criminal background, the court compared defendant’s prior
conviction for aggravated fleeing and eluding to this altercation where defendant fled from the
scene, provided no aid to the minors, and was later taken into custody in a motel where a knife
was recovered with blood still on it. The court also addressed defendant’s armed robbery
conviction, noting that it was a forcible felony crime of violence, and his conviction for witness
intimidation, finding that it was evidence of the fact that defendant believes that his conduct can
intimidate and threaten individuals.
¶ 23 Additionally, the court explained that defendant is a “grown man, 50 years old, who chose
to confront a 21-year-old female who had four minor children with her who were enjoying, I
believe, a day in the park on a Monday at approximately 4:00. He chose to confront her and start
an argument that led to a physical altercation. He posed a threat at that time and continued to pose
a threat during the pendency of this incident.” As to self-defense, the court explained that defendant
admitted to calling Witness 1 a “fat b***,” which the court described as an offensive and
aggressive statement, which he made to a stranger in a public park.
¶ 24 Lastly, the court found that there were no conditions or combination of conditions that
could mitigate the risk that defendant poses. The court discussed the facts of the incident in which
defendant attempted to intimidate the victims by following them and pulling out a switchblade,
leading to defendant stabbing D.S., who later died, and V.S. in the back. The court also noted that
the PSA recommended maximum conditions if defendant were to be released. The court
considered a number of conditions, including, release with mandatory conditions, such as stay-
away/no contact and no access to dangerous weapons, and release on GPS, home curfew, and
No. 1-24-0550B
electronic monitoring. The Court explained that GPS, electronic monitoring, and home curfew
would still permit defendant to have movement and have access to the community where he is a
danger. The court explained that electronic movement is monitored, but defendant is permitted
two days of movement on GPS. The court further explained that movement is monitored with “an
ankle bracelet that monitors with the hopes that the police will respond on time to prevent or
intervene if an incident happens.” The circuit court concluded that based on the facts and
circumstances of this case, it was not willing to take that risk and that detainment was the only
way to mitigate the real and present threat defendant posed to the individuals and community.
¶ 25 The court granted the State’s petition to detain defendant pretrial and entered a written
order reflecting its findings.
¶ 26 Defendant timely appealed. A supporting record and report of proceedings have been filed
with this court. Defendant filed a “Notice in Lieu of Rule 604(h) Memorandum,” informing this
court of his intention to “stand on the notice of appeal.” His notice also addresses portions of the
record and cites [CITATION], in support his position. The State filed a memorandum under Illinois Supreme Court Rule 604(h) (eff. Oct. 19, 2023).
¶ 27 Pretrial release is governed by article 110 of the Code (725 ILCS 5/110 (West 2022)), as
amended by the Act. Under the Code, the requirement of posting monetary bail has been abolished
in Illinois as of September 18, 2023. See 725 ILCS 5/110-1.5 (West 2022); [CITATION],
¶ 52. Now, “[a]ll persons charged with an offense shall be eligible for pretrial release before
conviction. It is presumed that a defendant is entitled to release on personal recognizance on the
condition that the defendant attend all required court proceedings and the defendant does not
commit any criminal offense, and complies with all terms of pretrial release.” 725 ILCS 5/110-
2(a) (West 2022).
No. 1-24-0550B
¶ 28 Pretrial release may only be denied in certain specific situations. 725 ILCS 5/110-6.1 (West
2022). Where—as is the case here—a defendant is charged with attempting to commit a forcible
felony, and after filing a timely verified petition requesting denial of pretrial release, the State has
the burden to prove by clear and convincing evidence that: (1) the proof is evident or the
presumption great that the defendant has committed a qualifying offense, (2) the defendant’s
pretrial release poses a real and present threat to the safety of any person or the community, and
(3) less restrictive conditions would not avoid a real and present threat to the safety of any person
or the community and/or prevent the defendant’s willful flight from prosecution. 725 ILCS 5/110-
2(a), 110-6.1 West 2022). “Clear and convincing evidence is “the quantum of proof that leaves no
reasonable doubt in the mind of the fact finder about the truth of the proposition in question.” [CITATION].
¶ 29 Appeals of bail orders under Illinois Supreme Court Rule 604(c)(1) (eff. Sept. 18, 2023)
have historically been reviewed using an abuse of discretion standard. [CITATION]. While Illinois
Supreme Court Rule 604(h) (eff. Sept. 18, 2023) provides a new procedure for these types of
appeals considering the changes made to the Code by the Act, “the Act neither mandates nor
suggests a different standard of review.” [CITATION]. There is some
debate among the appellate districts concerning the appropriate standard of review with respect to
appeals under Rule 604(h). See [CITATION] (observing
split between districts regarding abuse of discretion and manifest weight of the evidence standard
under the Act); [CITATION] (discussing manifest
weight of the evidence, abuse of discretion, and de novo standards of review and concluding abuse
of discretion is the proper standard). While we would affirm under any of these standards, we
No. 1-24-0550B
conclude that a circuit court’s determination as to the first two propositions—whether a defendant
committed a detainable offense and poses a threat—are reviewed under the manifest weight
standard ([CITATION]) and the trial court’s determination that no condition or combination of conditions
can mitigate the real and present threat posed by defendant is reviewed under an abuse of discretion
standard. See [CITATION] (explaining that the circuit court
“must exercise a degree of discretion to determine whether any less restrictive means will mitigate
the threat”); [CITATION] (explaining that the circuit court in coming
[SEGMENT 29]
to its determination is “called upon to weigh and balance a multitude of factors”).
¶ 30 An abuse of discretion occurs where the court’s judgment is fanciful, arbitrary, or
unreasonable, or where no reasonable person would agree with the court’s position. [CITATION]. In conducting this review, we will not substitute the circuit court’s factual
and credibility findings with our own. [CITATION]. “A finding is
against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if
the finding itself is unreasonable, arbitrary, or not based on the evidence presented.” [CITATION].
¶ 31 On appeal, defendant does not challenge the evidence that he has been charged with a
detention-qualifying offense or that the proof is evident or the presumption great that he committed
the offense. Defendant also does not challenge the circuit court’s determination that the State met
its burden of proving by clear and convincing evidence that defendant’s pretrial release posed a
real and present threat to the safety of any person or persons or the community. Rather, defendant
argues that the court erred in its determination that no condition or combination of conditions could
- 10 - No. 1-24-0550B
mitigate the real and present threat to the safety of any person or persons or the community, based
on the specific, articulable facts of the case, or defendant’s willful flight.
¶ 32 Section 110-5 of the Code outlines the factors trial courts should consider in determining
conditions of pretrial release. [CITATION]. These factors include the nature and
circumstances of the offense charged, the weight of the evidence against the defendant, and the
history and characteristics of the defendant, including whether defendant was on probation at the
time of the arrest. Id. 110-5(a)(1)-(3) (West 2022).
¶ 33 Here, the State proffered that defendant was charged with first degree murder and
attempted first degree murder after defendant, in the afternoon, at a Chicago Heights public park,
stabbed D.S., a 13 year-old-male, in the shoulder causing his death, and V.S., a 15 year-old-male,
in the back. Although defendant suffered injuries, including stab wounds, multiple witnesses
identified defendant, 50 years old, as the initial aggressor. Defendant followed the victims from
the swing set to the covered pavilion and called their sister a “fat b***.” After a verbal altercation
with the minors, the defendant pulled out a knife and the interaction became violent. After stabbing
the minors, instead of offering assistance to D.S., who was rolling around on the ground, or V.S.
who had also been stabbed in the back, defendant fled the park with his wife and children. Later
that day, defendant was found at a motel in Monee where a knife with blood on it was recovered.
At the time of this incident, defendant was on probation and had previous convictions of armed
robbery, a forcible felony, and witness intimidation. The State argued that no admonishments or
electronic monitoring would mitigate the risk that defendant posed to the surviving victim,
witnesses, and the community as a whole.
¶ 34 In making its determination, the court discussed the facts of the incident highlighting the
defendant’s intimidating actions toward the victims and noted that the PSA recommended
- 11 - No. 1-24-0550B
maximum conditions if defendant were to be released. The court considered GPS, electronic
monitoring, and home curfew, but found that those conditions would still allow defendant
movement, which would not prevent him from committing similar crimes to individuals in the
community or accessing the surviving victim or witnesses.
¶ 35 The record reflects that the circuit court properly considered the statutory factors: the
nature, seriousness, and circumstances of the offense charged. In light of these statutory factors
and the State’s proffered evidence, we cannot find that the circuit court’s determination that the
State proved by clear and convincing evidence that there were no conditions or combination of
conditions of pretrial release that could mitigate the real and present threat posed by defendant,
was arbitrary or unreasonable.
¶ 36 Defendant, citing [CITATION], argues that the State was
required to, but failed to proffer more than just the nature of the offense charged to support a
finding that no conditions could mitigate defendant’s threat. In [CITATION], the defendant was charged
with aggravated battery after he discharged a gun once inside his bedroom and the bullet went
through the wall of the bathroom and grazed his estranged wife. Id. ¶¶ 4-5. The victim had been at
the home with friends to retrieve belongings. Id. ¶ 5. According to the defense proffer, the
defendant believed the victim had left the home when he fired the weapon and the victim drove
herself to the hospital for treatment after first going to a bar with friends. Id. ¶ 6. The State relied
on its proffer as to the basic elements of the offense to support its argument that defendant should
be detained. Id. ¶¶ 5, 17. The circuit court ordered the detention of the defendant without oral or
written explanation as to its finding that there were no conditions which would mitigate the threat
posed by defendant. Id. ¶ 8.
- 12 - No. 1-24-0550B
¶ 37 On appeal, this court found that the State failed to prove there were no conditions or
combination of conditions that could mitigate the danger posed by defendant where the State
offered no evidence to support that conclusion and failed to discuss any conditions. [CITATION] ¶ 19. The
[CITATION] court reasoned that “[i]f the base allegations that make up the sine qua non of a violent
offense were sufficient on their own to establish this element, then the legislature would have
simply deemed those accused of violent offenses ineligible for release.” [CITATION] ¶ 18.
¶ 38 We find [CITATION] distinguishable. In this case, the State presented evidence, and not just the
basic elements of the offense, that showed why no less restrictive conditions would mitigate
defendant’s risk to the individuals and the community. After proffering evidence that defendant,
the initial aggressor, stabbed D.S. and V.S., both minors, in a public park, the State presented
evidence of defendant’s prior criminal history, which included the fact that defendant was on
probation at the time he committed the instant crime and also had a prior conviction for another
forcible felony, armed robbery. Defendant’s criminal background also included a conviction for
witness intimidation, which is relevant here as there is a surviving victim and multiple witnesses.
The circuit court considered these factors and with explanations, found that defendant, if released
even on maximum conditions, would not be prevented from attempting to intimidate these
witnesses or committing similar violent crimes in public places.
¶ 39 Lastly, defendant contends that the circuit court erred in ordering him detained where the
circuit court erred in its determination that no condition or combination of conditions would
reasonably ensure defendant’s appearance at later hearings. However, the State’s petition did not
rely upon this alternative statutory risk factor, the State made no argument as to this factor at the
hearing, and the circuit court’s written order did not rely upon a finding as to this risk to justify
defendant’s detention. Even if the trial court had relied on the risk of defendant’s willful flight
- 13 - No. 1-24-0550B
from prosecution, we need not address this issue further where the decision to detain defendant
may be affirmed solely based on the risk to a person or persons or the community, as discussed
above. 725 ILCS 5/110-6.1(e)(3) (West 2022) (the State must prove that “no condition or
combination of conditions *** can mitigate (i) the real and present threat to the safety of any
person or persons or the community ***, or (ii) the defendant’s willful flight” (emphasis added)).
¶ 40 In summary, we find that the circuit court did not abuse its discretion in finding that the
State proved by clear and convincing evidence that there are no conditions or combination of
conditions which would mitigate the threat to the safety of the victim and the community and in
ordering the pretrial detention of defendant.
¶ 41 For the foregoing reasons, we affirm the order of the circuit court detaining defendant and
remanding him to the custody of the Cook County sheriff pending trial.
¶ 42 Affirmed.
¶ 43 JUSTICE OCASIO, specially concurring:
¶ 44 I join in the decision of the court. I write separately only to express my conviction that the
standard of review should be de novo. See [CITATION].
- 14 -
NOTICE
IL App (4th) 240372-U FILED
This Order was filed under May 6, 2024
Supreme Court Rule 23 and is NO. 4-24-0372 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed Court, IL
IN THE APPELLATE COURT
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
JAMES E. PHILLIPS, ) No. 24CF97
Defendant-Appellant. )
) Honorable
) Robert K. Adrian,
) Judge Presiding.
[SEGMENT 30]
JUSTICE KNECHT delivered the judgment of the court.
Justice Steigmann and Justice Vancil concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in denying defendant pretrial release.
¶2 Defendant, James E. Phillips, appeals the trial court’s order denying him pretrial
release under section 110-6.1(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/110-6.1(a) (West 2022)), hereinafter as amended by Public Acts 101-652, § 10-255 and
102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act. We affirm.
¶3 I. BACKGROUND
¶4 On February 8, 2024, the State charged defendant with three counts of possession
of child pornography (720 ILCS 5/11-20.1(a)(6) (West 2022)). According to the information,
defendant was charged for the possession of three different videos, each involving a female child
under the age of 13.
¶5 The same day, the State filed a verified petition to deny defendant pretrial release under section 110-6.1(a) of the Code (725 ILCS 5/110-6.1(a) (West 2022)). The State alleged
defendant’s pretrial release poses a real and present threat to the safety of any person or persons
or the community and no condition or combination of conditions can mitigate that threat.
¶6 An arrest report and a pretrial services report were filed with the State’s petition.
The arrest report was authored by James Brown, a law-enforcement officer with the Quincy
Police Department. According to Officer Brown, he received the case after Google flagged an
account and reported a user for possession of possible child pornography on August 25, 2023.
The account subscriber’s information matched defendant’s name and date of birth, and the
“frequently used IP address” was issued to defendant’s address. The number for the cell phone
found on defendant at the time of the arrest matched the number on the account reported by
Google. Search warrants for defendant’s Google and Yahoo accounts revealed a majority of
personal photos belonging to defendant. Google’s search also returned “17 child exploitive
videos that were associated and trigg[er]ed the cybertips.” The videos “featured minor females in
various states of undress engaged in masturbatory activity or engaged in sexual actives [sic] with
an unknown adult.” The report describes three of the videos, the ones for which charges were
brought.
¶7 Officer Brown reported, upon placing defendant on arrest for child pornography,
defendant and his wife “started stating his account was hacked.” Officer Brown reported the
living conditions of the residence were “some of the worse [sic] that I have seen.” The Illinois
Department of Children and Family Services (DCFS) responded and took protective custody of
the children. In addition to the living conditions, “there were several locations [with] cannabis
paraphernalia, cannabis, and cannabis wax,” and these locations “were unsecured from the
children.” A DCFS agent at the scene advised defendant had “been previously ‘indicated’ by
DCFS for sexual molestation of a previous [stepdaughter].” Officer Brown reported defendant
had an arrest in Virginia on January 22, 1994, for felony aggravated sexual battery and felony
rape but was found not guilty.
¶8 According to the pretrial services report, defendant was married and living with
his wife and three children, who were 21, 17, and 16. They had resided at the same address for
15 years. Defendant worked at Papa Johns for six months, earning $15 an hour, for 25 hours per
week.
¶9 Defendant had a criminal history, largely comprised of traffic offenses, for which
defendant paid fines. However, in March 2004, defendant was convicted of resisting a peace
officer. He was sentenced to 12 months’ conditional discharge, which terminated successfully. In
July 2018, defendant was charged with operating an uninsured motor vehicle and sentenced to
six months’ supervision, which was terminated successfully. On January 22, 1994, defendant
was charged with sexual battery, a misdemeanor, for which he was found guilty in June 1994.
¶ 10 The author of the pretrial services report used the Revised Virginia Pretrial Risk
Assessment Instrument to estimate a 96% probability no new offenses would occur during the
pendency of the case. The author concluded, “Pretrial Supervision would not be beneficial
because the defendant is low risk.”
¶ 11 Also that day, a detention hearing was held. Neither side proffered any additional
evidence. Defense counsel argued, “I suspect that those children have been removed from the
home based on what was described here that DCFS has followed up and removed those children
from the home so even if [defendant] were released, he would not have any contact with those
children.” Counsel argued conditions could be put in place to keep defendant from being on the
Internet. Counsel further suggested defendant could be tracked using global-positioning
technology.
¶ 12 At the close of the hearing, the trial court ruled as follows:
“First of all, the Court would find by clear and convincing
evidence that that the defendant is a risk to persons or the
community based on the nature of this charge, the evidence that
they were separate videos found on his Google account depicting
minors. The Court recognizes he does—has limited criminal
history. However, the limited criminal history that he has is a—
concerns a sexual battery and the Court recognizes it was 30 years
ago but the Court can still consider that in making its findings.
The Court would find probable cause for these offenses so
the defendant would not be entitled to a preliminary hearing or
would need to be indicted. The Court would detain then
[defendant].”
¶ 13 Using a preprinted form, the trial court entered a written order finding the State
proved the dangerousness standard by clear and convincing evidence. On the lines provided for
the reasons “why less restrictive conditions cannot mitigate the real and present threat,” the court
checked boxes next to “Nature and circumstances of the offense(s) charged” and “Defendant’s
prior criminal history is indicative of violent, abusive, or assaultive behavior.”
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 On February 22, 2024, defendant filed a notice of appeal challenging the order
denying him pretrial release under Illinois Supreme Court Rule 604(h) (eff. Dec. 7, 2023).
Defendant’s notice of appeal is a completed form from the Article VI Forms Appendix to the
Illinois Supreme Court Rules (see [CITATION]), by which he asks this
court to overturn the trial court’s order denying him pretrial release and permit him to be released
with an imposition of conditions. The form lists several possible grounds for appellate relief and
directs appellants to “check all that apply and describe in detail.” Defendant checked two
grounds for relief and provided no additional detail on the lines below. Defendant filed a
supporting memorandum.
¶ 17 The first ground for relief is the State failed to meet its burden of proving by clear
and convincing evidence defendant poses a real and present threat to the safety of a person or
persons or the community. In his memorandum, defendant argues the State provided no specific
facts in its verified petition and, at the detention hearing, “presented little to no evidence that
[defendant] was a ‘real and present threat’ beyond” the “generalized threat inherent in the charge
itself.”
¶ 18 All criminal defendants are presumed eligible for pretrial release. [CITATION]. Before the State may overcome that presumption and secure pretrial
detention of a criminal defendant under section 110-6.1(e), the State must prove multiple
elements. One is to prove by clear and convincing evidence “the defendant poses a real and
present threat to the safety of any person or persons or the community, based on the specific
articulable facts of the case.” See id. §§ 110-6.1(a)(1.5), (e)(2). The Code gives the trial court
broad discretion in choosing what factors to consider in making this determination. See id.
§ 110-6.1(g) (setting forth factors a trial court may consider when considering dangerousness).
These factors include the nature and circumstances of the offense charged (id. § 110-6.1(g)(1))
and defendant’s history and characteristics, including whether there is evidence of violent,
abusive, or assaultive behavior (id. § 110-6.1(g)(2)(A)).
¶ 19 Since the Code became effective, this court has applied the abuse-of-discretion
standard of review to decisions on pretrial release. See [CITATION]. Defendant asks this court, however, to reverse course and apply the manifest-
weight-of-the-evidence standard of review. Recently, this court revisited the standard of review
and addressed this very question in [CITATION]. Ultimately, we decided to “continue to abide by our prior holdings that a trial court’s decision
and findings on issues of pretrial detention are appropriately reviewed under the abuse of
discretion standard.” Id. ¶ 35. We will do so here. An abuse of discretion will be found only if
we find the decision of the trial court to be unreasonable, arbitrary, or fanciful or we find no
[SEGMENT 31]
reasonable person would agree with the trial court’s decision. [CITATION]
¶ 20 Returning to the issue of whether defendant’s release poses a threat, we find no
abuse of discretion. The trial court indicated it considered the nature and circumstances of the
offenses as part of the reasons for its decisions. The nature and circumstances surrounding the
offenses indicate the videos referenced in the State’s charging instrument were just 3 among 17
videos of child pornography. The videos were found in a house in which minors resided, and in a
house where adult items, cannabis and cannabis paraphernalia, were unsecured from the
children. While defense counsel argues he believed the children were removed, there is no
indication removal of the children has occurred. While the only sex offense defendant was
convicted of occurred 30 years before, the court gave some weight to that offense. That decision,
and the conclusion defendant is a threat, is not unreasonable, fanciful, or arbitrary and not one
with which no reasonable person would agree. See id.
¶ 21 For his second ground for relief, defendant argues the State failed to meet its
burden of proving by clear and convincing evidence that no condition or combination of
conditions can mitigate his real and present threat. In his memorandum, defendant emphasizes
the State failed “to argue, much less present clear and convincing evidence, that no condition of
release could mitigate any potential threat.” Defendant maintains the State has, therefore,
forfeited this argument.
¶ 22 Before pretrial release may be denied under the dangerousness standard,
subsection (e)(3)(i) of the Code requires the State prove “no condition or combination of
conditions set forth in subsection (b) of Section 110-10 of this Article can mitigate *** the real
and present threat to the safety of any person or persons or the community, based on the specific
articulable facts of the case.” [CITATION]. In its detention order, the
trial court must “make a written finding summarizing the court’s reasons for concluding that the
defendant should be denied pretrial release, including why less restrictive conditions would not
avoid a real and present threat *** based on the specific articulable facts of the case.” Id. § 110-
6.1(h)(1).
¶ 23 We are not convinced the State has forfeited its argument. We note defendant
cites no authority for this contention. Even if he had, the record shows the State asserted, in its
verified petition, this very claim. Moreover, proof of the dangerousness standard does not require
the State to argue the no-conditions element is satisfied; the State must prove the no-conditions
element “by clear and convincing evidence.” [CITATION].
¶ 24 Here, we find the trial court did not abuse its discretion in finding the State proved
this element by clear and convincing evidence. First, the State had to prove the proof is evident
or the presumption great defendant committed the charged offenses (see id. § 110-6.1(e)(1)), and
defendant did not challenge that finding on appeal. For purposes of this appeal, we view the
proffered evidence with the presumption defendant possessed the three videos of child
pornography. In addition to those 3 videos, defendant’s account contained 14 other pornographic
videos of young girls either masturbating or engaging in sexual acts with adults. These videos
were found on a computer in a house where defendant resided with a 16-year-old and a 17-year-
old. While defense counsel suggested at the detention hearing these children had been removed
from the home, which would allow defendant to be returned home, there was no proffer
supporting that conclusion. Indeed, we cannot make that inference given the children’s ages and
the fact defendant had himself been removed from the home and arrested. DCFS may have
concluded the older teens could remain at home with their mother. While defendant’s
30-year-old arrest for sexual battery is remote, it is a sexual offense that bears some relevancy to
defendant’s current charges. The State’s proffers show it was not an abuse of discretion to
conclude the evidence clearly and convincingly establishes defendant could not safely be
returned home. The court’s decision this element is proved is not “arbitrary, fanciful or
unreasonable.” (Internal quotation marks omitted.) See [CITATION].
¶ 25 Defendant’s case law supporting his claim is distinguishable. The defendant in
[CITATION], ¶ 4, faced the same charges as defendant. In that
case, however, there is no evidence the defendant resided with minors in a home where the
defendant would return if not detained. See id. ¶¶ 5-8.
¶ 26 III. CONCLUSION
¶ 27 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 28 Affirmed.
NOTICE
IL App (4th) 240270-U
This Order was filed under
FILED
Supreme Court Rule 23 and is May 2, 2024
NO. 4-24-0270
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
LAWRENCE DUSHON JOHNSON, ) No. 24CF59
Defendant-Appellant. )
) Honorable
) J. Jason Chambers,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Presiding Justice Cavanagh and Justice Steigmann concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in denying defendant pretrial release.
¶2 Defendant, Lawrence Dushon Johnson, appeals the trial court’s order denying him
pretrial release under sections 110-6.1(a)(1) and 110-6.1(a)(6) of the Code of Criminal Procedure
of 1963 (Code) (725 ILCS 5/110-6.1(a)(1), (6) (West 2022)), hereinafter as amended by Public
Acts 101-652, § 10-255 and 102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial
Fairness Act. We affirm.
¶3 I. BACKGROUND
¶4 On January 17, 2024, the State charged defendant with three offenses based on
events occurring on August 6, 2023: unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a)
(West 2022)), two counts of aggravated unlawful use of a weapon (id. § 24-1.6(a)(2)), reckless
discharge of a firearm (id. § 24-1.5(a)), and violation of the Firearm Owners Identification (FOID) Card Act (430 ILCS 65/2(a)(1) (West 2022)).
¶5 On January 24, 2024, the State filed a verified petition to deny defendant pretrial
release under sections 110-6.1(a)(1) and 110-6.1(a)(6) of the Code (725 ILCS 5/110-6.1(a)(1),
(6) (West 2022)). The State alleged defendant’s pretrial release poses a real and present threat to
the safety of any person or persons or the community.
¶6 That same day, a hearing was held on the State’s petition. At the hearing, the State
read a probable-cause statement. According to the statement, around 3:30 a.m. on August 6,
2023, Normal Police Department officers responded to gunfire on Lindell Drive. A large group
of people congregated for an outdoor block party. Multiple shooters were reported. Eight nearby
vehicles and three apartments were struck by bullets. Two individuals suffered gunshot wounds.
One was shot in the thigh. The other’s head was grazed by a bullet. On August 9, 2023, an
employee of Enterprise Rent-A-Car reported a Ford Escape, rented by Donald Wheatley, was
returned with bullet-hole damage. Wheatley reported he rented the vehicle for a friend, Kelsey
Voehgtly. We note Kelsey’s last name appears in the record as “Voehgtly” and “Voeghtly”. For
this disposition, we will use “Voehgtly”, as that is how the State spelled her name at the
detention hearing. On August 24, 2023, police talked to Voehgtly, who reported she was
intoxicated that night and did not remember much. She recalled going with defendant,
defendant’s girlfriend Caravina Jones, and Iyeshia Anderson to bars and then to a block party.
¶7 The State further reported the GPS for the rented Escape revealed the Escape
went to Voehgtly’s residence and then to defendant and Jones’s residence on North Golfcrest
Road. The Escape next went to Pub II in Normal, Illinois, around midnight, and then to Huck’s
and Cadillac Jack’s. Videos show defendant, Anderson, Jones, Voehgtly, and Ayesha Yacub
walking from the rented Escape into Pub II and then, around 12:30 a.m., into Cadillac Jack’s.
[SEGMENT 32]
The videos further show the Escape at North Golfcrest at 2 a.m. and at Lindell Drive just before
3:30 a.m., the time of the shootings. Shortly after 3:30 a.m., the Escape returned to defendant’s
residence.
¶8 According to the State, two anonymous callers identified defendant as a shooter.
One identified defendant as the first to fire shots. Several video cameras captured images of the
shooting. Around 3:30 a.m., defendant exited a car and walked west on Lindell Drive. Around
that time, several men with guns exited a Dodge on Lindell Drive. Gunshots were heard.
¶9 On October 26, 2023, defendant admitted to police he was with Jones and Yacub
on August 6. He confirmed they went to Cadillac Jack’s and he was on Lindell Drive when the
shooting occurred. Defendant reported at least 10 shooters. Defendant denied being one of them.
¶ 10 On November 9, 2023, Yacub informed police she was with defendant, Jones, and
Voehgtly on August 6, 2023. They went to Eric Too’s but left after an altercation. Defendant
learned people with whom he had an altercation at Eric Too’s were at a party on Lindell Drive.
Defendant told Yacub he was getting his gun and going to Lindell Drive. Yacub reported at least
400 people were outside. Yacub exited the vehicle first. Defendant exited with his gun. Yacub
watched defendant fire his gun, which she described as “large” and equipped with a light.
Defendant emptied the clip and returned to the car. The State asserted defendant was ineligible
for a FOID card due to his conviction for mob action in [CITATION].
¶ 11 The State reported defendant had a criminal history, which included the
following: misdemeanor theft in 2004, misdemeanor attempted resisting a peace officer in 2006,
driving without a valid license in 2007, driving on a suspended license in 2015, driving with a
revoked license in 2023 ([CITATION]), a Class 4 felony conviction in
2007 for resisting a peace officer, a Class 3 felony conviction in 2008 for aggravated battery, a
federal conviction in 2010 for cocaine possession, a Class 4 felony conviction in 2016 for a mob-
action offense, misdemeanor domestic battery in 2018, fleeing or attempting to elude a peace
officer in 2019, and a misdemeanor in 2018 for driving under the influence. At the time
defendant allegedly committed the charged offenses, he was on pretrial release for McLean
County case No. 23-CF-967, aggravated fleeing or attempting to elude a peace officer and
driving while license suspended.
¶ 12 In response, defense counsel proffered defendant was 35 years old and a resident
of McLean County for over 20 years. Defendant was employed full-time at Rivian and provided
for his mother and his seven children, five of whom resided with him. Defendant had medical
issues, including insomnia and grief. Ten of his family members had died in a span of two years.
Defense counsel reported defendant successfully completed the sentences imposed for his
offenses, including court supervision in multiple cases, prison sentences, and probation. Defense
counsel highlighted he was not on conditional discharge for the 2023 driving-while-license-
revoked conviction when the alleged offenses were committed in August 2023. Counsel
proffered the conditional discharge for that case began on September 14, 2023. Defendant had no
instances of failing to appear in two years.
¶ 13 In argument, defense counsel emphasized the State overlooked police reports that
indicated the video evidence shows only what “appears to be” defendant with what “appears to
be” a gun. In addition, after officers read defendant his Miranda rights (see [CITATION]),
defendant stated he did not understand but the interview continued without an explanation of those rights. Defendant denied possessing a gun. Yacub had a motive to
implicate defendant as a shooter as she and defendant were previously in a relationship.
Defendant also volunteered in the community, operating a nonprofit organization, “Growth
Peace Unity.”
¶ 14 In granting the State’s petition, the trial court found the State clearly and
convincingly proved the proof evident or presumption great defendant committed a detainable
offense. The court found the State sufficiently proved defendant was a real and present threat to
the named victims and to the community and the threat could not be mitigated with conditions.
The court based its findings “on the specific articulable facts of this case.” The court granted no-
contact orders with Yacub and Voeghtly.
¶ 15 Using a preprinted form, the trial court entered a written order finding the State
proved the dangerousness standard by clear and convincing evidence. Under “Less Restrictive
Conditions Ineffective,” the court checked boxes finding “Community/Individual safety cannot
be meaningfully achieved with available conditions of pretrial release,” “There is a high
likelihood that Defendant will commit new criminal offenses if granted pretrial release,”
“Defendant has access to, and likely would attempt to use, a dangerous weapon against others if
released,” and “Defendant has a history of *** thwarting/frustrating release/supervision
conditions.”
¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On February 14, 2024, defendant filed a notice of appeal challenging the order
denying him pretrial release under [CITATION]. Defendant’s notice of appeal is a completed form from the Article VI Forms Appendix to the
Illinois Supreme Court rules (see [CITATION]), by which he asks this
court to grant him pretrial release. The form lists several possible grounds for appellate relief and
directs appellants to “check all that apply and describe in detail.” Defendant checked three
grounds for relief and inserted language after these grounds. Defendant also filed a supporting
memorandum.
¶ 19 The first checked ground for relief is “The State failed to meet its burden of
proving by clear and convincing evidence no condition or combination of conditions can
mitigate the real and present threat to the safety of any person or persons or the community.” On
the lines under the preprinted text, defendant wrote the following:
“The State proffered evidence that [defendant] was a threat
to the safety of the community because of video footage and a
witness’ statement. According to the police report, footage only
appears to show that [defendant] was holding a firearm. It is not
definitive that he was. The footage also does not show [defendant]
discharging the item that appeared to be a firearm. The witness
who provided a statement to police was in a relationship with
[defendant] that he has now ended. Defense proffered that the
witness’ statements may be motivated by wrong motives.”
In his supporting memorandum, defendant argues the State failed to explain why the threat could
not be mitigated by any conditions of release and the trial court failed to explain in writing or
orally why certain conditions of release could not mitigate the threat. Defendant further
maintains the State misrepresented defendant was on pretrial release when the offenses in this
case were committed and the court, when ordering defendant detained, improperly relied on that
misrepresentation. Defendant contends he was placed on pretrial release in McLean County case
No. 23-CF-967 on September 14, 2023, but the offenses charged in this case occurred on August
6, 2023.
¶ 20 Under the Code, all criminal defendants are presumed eligible for pretrial release.
725 ILCS 5/110-6.1(e) (West 2022). Before the State may overcome that presumption and secure
pretrial detention of a criminal defendant under the dangerousness standard, the State must prove
multiple factors by clear and convincing evidence. One such factor is no condition or
combination of conditions can mitigate the real and present threat to the safety of any person or
persons or the community. See id. § 110-6.1(e)(3). Recently, we reaffirmed that we review a trial
court’s decision and findings on pretrial-detention issues under the abuse-of-discretion standard.
[CITATION] , ¶¶ 18-23, 35 (finding the manifest-weight-of-the-
evidence standard inappropriate for review of pretrial-detention orders).
¶ 21 We disagree with defendant’s argument the trial court did not explain its reasons
for finding the State clearly and convincingly proved no condition or combination of conditions
can mitigate the threat defendant poses to a person or persons or the community. At the hearing,
the court stated it made the finding “based on the specific articulable facts of this case.” In the
written order, under the following preprinted text stating, “Less restrictive conditions would not
avoid a real and present threat to the safety of any person(s) or the community, *** for the
following reasons:” the court checked four boxes, including finding a high likelihood existed
defendant would commit new criminal offenses if granted pretrial release, defendant had access
to and would likely attempt to use a dangerous weapon against others, and defendant had a
history of “thwarting/frustrating release/supervision conditions.” Given defendant’s history,
which includes violent offenses and the prohibition against him possessing a firearm, and the
circumstances of the offense, in particular defendant’s decision to retrieve a weapon, follow
individuals with whom he had an altercation, and fire a weapon into a crowd of people, the
court’s conclusions find support in the record.
[SEGMENT 33]
¶ 22 Defendant cites [CITATION], and
further alleges the failure to discuss whether orders of protection, electronic monitoring, and
home detention would mitigate the threat defendant poses to the community renders the trial
court’s order of detention deficient. In [CITATION], we found the “totality of the trial court’s
comments compels the conclusion that the court failed to, and refused to, consider and apply the
proper statutory criteria.” [CITATION]. This court mentioned the trial court’s failure to discuss
electronic monitoring only in support of the conclusion the trial court did not consider proper
criteria. [CITATION]. The [CITATION] court did not find the Code requires explicit consideration of
each statutory condition before finding mitigation of the threat cannot be achieved.
¶ 23 We also disagree with defendant’s claim the State misrepresented he violated
pretrial-release conditions when the alleged offenses were committed. The record shows
defendant was charged in 2023 with two offenses related to his not being licensed to drive. In
McLean County case No. 23-MT-1511, defendant was convicted of driving with a revoked
license. In McLean County case No. 23-CF-967, defendant was charged with aggravated fleeing
or attempting to elude a peace officer and driving with a suspended license. When defense
counsel proffered defendant was sentenced to conditional discharge on September 14, 2023, she
mentioned “conditional discharge” and the offense of driving with a revoked license and made
no mention of “pretrial release.” When the State proffered defendant was on pretrial release on
August 6, 2023, when the shootings occurred, the State referred to the driving with a suspended
license charge. Defendant, by making this argument on appeal, misinterpreted or misconstrued
the lower-court record. There is no evidence to contradict the State’s proffer defendant was on
pretrial release on August 6, 2023. Thus, in addition to the proffer showing defendant possessed
a weapon, despite being barred from doing so, there is proffered evidence defendant has a history
of not complying with pretrial conditions.
¶ 24 Defendant has not shown the trial court abused its discretion in finding the State
clearly and convincingly proved the threat could not be mitigated by any condition or
combination of conditions. See, e.g., [CITATION]
¶ 25 Defendant’s second checked ground for relief is irrelevant. The second box
checked by defendant asserts the trial court erred in finding no condition or combination of
conditions would reasonably ensure defendant’s appearance for later hearings or prevent him
from being charged with a subsequent felony or Class A misdemeanor. This argument applies to
appeals from orders revoking pretrial release under section 110-6(a) of the Code (725 ILCS
5/110-6(a) (West 2022)). Defendant was detained under section 110-6.1 of the Code (see id.
§ 110-6.1(a), (e)(2)-(3)), which does not require the State prove this factor before obtaining an
order denying defendant pretrial release.
¶ 26 For his third argument, defendant, on his notice of appeal, provided additional
information under a box for “Other.” Defense counsel wrote the following:
“Defense proffered evidence concerning [defendant’s]
statements. According [to] the disclosure provided, the police
officer advised [defendant] of his Miranda rights before the
interview began. [Defendant] indicated he did not understand.
However, the interview continued. Pursuant to statute, while this
may not rise to the level of suppression, this issue goes to the
weight of the State’s evidence.”
¶ 27 At the hearing, defense counsel raised this issue, and the trial court noted it agreed
it went to weight. The Miranda rights issue only applies to defendant’s statement placing himself
at the scene of the shooting. According to the State’s proffer, video evidence, GPS evidence, and
witness testimony placed defendant at the scene. The State proffered more than sufficient
evidence to satisfy its burden. Even if defendant could prove error, which he did not, we would
find the error harmless beyond a reasonable doubt.
¶ 28 III. CONCLUSION
¶ 29 We affirm the trial court’s judgment.
¶ 30 Affirmed.
- 10 -
2024 IL App (4th) 240248
FILED
April 29, 2024
NO. 4-24-0248 Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Jersey County
CHRISTOPHER B. THOMAS, ) No. 24CF7
Defendant-Appellant. )
) Honorable
) Allison S. Lorton,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Presiding Justice Cavanagh and Justice Harris concurred in the judgment, with opinion.
OPINION
¶1 Defendant Christopher B. Thomas appeals from the circuit court’s February 1,
2024, order denying pretrial release pursuant to the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/art. 110 (West 2022)), as amended by Public Act 101-652 (eff. Jan. 1, 2023)
(commonly referred to as the Pretrial Fairness Act). On appeal, he argues that the State failed to
meet its burden of proving by clear and convincing evidence that (1) the proof is evident or the
presumption great that he committed the offense charged; (2) he posed a real and present threat
to the safety of any person or persons or the community, based on the specific, articulable facts
of the case; and (3) no condition or combination of conditions could mitigate the real and present
threat posed or his willful flight. Defendant further argues that the court erred in its determination that no condition or combination of conditions would reasonably ensure his appearance for later
hearings or prevent him from being charged with a subsequent felony or Class A misdemeanor.
¶2 We affirm.
¶3 I. BACKGROUND
¶4 On January 30, 2024, defendant was charged by information with unlawful
possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)), specifically, the
possession by a person convicted of a felony of “a Winchester 22 lever action rifle and a
Remington 12-gauge slug gun, an enhanced Class 3 felony. The incident allegedly took place on
January 27, 2022.
¶5 On February 1, 2024, the State filed a verified petition to deny pretrial release,
arguing that the charged offense was detainable, that defendant’s release posed a clear and present
threat to individuals or the community, and that no condition or combination of conditions could
mitigate the real and present threat posed by defendant. The State attached a pretrial detention
report, which identified defendant as a threat, a copy of trail camera photographs showing
defendant in possession of the firearms, and a probable cause statement authored by Jersey
County Sheriff’s Office Detective Marshall Lewis describing the incident of January 27, 2022.
¶6 At the February 1, 2024, hearing on the State’s verified petition, the State called
Detective Lewis to the stand, who testified as follows:
“It was reported that [defendant] had broken [into] his mother and step-father’s
house. Further broke [into] a safe which had firearms. Gained access to those
firearms and [proceeded] fire several shots inside of the residence he was staying
in at the time into the bed, into appliances. So much so that his girlfriend at the time
was in fear enough that she requested that her son come pick her up at the end of
the driveway. She left the residence that night that this all occurred. She was still
worried about [defendant] and his situation and having the firearms that she
contacted mother and step-dad and advised that hey, [defendant] is down there at
the trailer. He’s got guns. Step-dad gets to the property and sees [defendant] with a
firearm in his hand. Talked him down from some of the things he was saying.
Step-dad goes into the trailer with him to try to calm him down a little bit and
noticed two more firearms that were his taken from the safe laying there on the bed.
He took possession of those firearms at the time.”
¶7 Detective Lewis further verified that a trail camera in the vicinity had captured
defendant and his stepfather at the trailer and the stepfather taking the guns from defendant.
¶8 Detective Lewis detailed at least eight incidents between January 2022 and the date
of the hearing wherein defendant made threats to Angie Blasa and Danny Law, as well as other
prior arrests for assault, battery, drug-related crimes, and weapons crimes, and eight other calls
relating to defendant’s mental welfare. According to Detective Lewis, in August 2023, defendant
threatened Blasa through text messages and had also shown up at her residence with what was
believed to be a firearm and would not leave. Lewis also testified that defendant was the primary
[SEGMENT 34]
suspect in a January 2024 investigation (Jersey County case No. 24-CF-466) concerning the
January 16, 2024, aggravated discharge of a firearm into Blasa’s residence, where she was
sleeping.
¶9 According to the pretrial detention report, defendant made statements that he had a
firearm and that he was going to kill Blasa and/or those she cares about. Detective Lewis
acknowledged that charges had not yet been recommended against defendant for the 2024 incident
but explained that, before referring charges to the state’s attorney, “I would still be looking for
additional pieces of evidence and some of the evidence that I’m investigating and still continuing
to collect just take[s] time for me to get some of those items—when you’re dealing with phones
and subpoenaed records.”
¶ 10 Following arguments, the circuit court granted the State’s motion and ordered
defendant detained. The court initially found that defendant had committed a detainable offense
and then concluded that defendant posed a real and present threat. On the latter point, the court
concluded that defendant “poses a real and present threat to the safety of any persons or the
community based upon specific articulable facts of the case, by conduct which may include not
limited to forceable felony, obstruction of justice, intimidation or injury as defined by the statute
and denial of release is necessary to prevent fulfillment of the threat upon which the charge is
based.” The court explained,
“I do believe that I have the discretion to consider the facts and circumstances of
this timeframe which has brought us here today. I have specific articulable facts
and threats of violence based upon the proffer of Detective Lewis from 2023 and
up to most recently which may involve shots being fired at this residence being
Angie Blasa and her current—those in her household. We have a period of
numerous—since 2022 this charge defense police contacts with respect to mental
health concerns, threats of violence, threats of abuse. I have a criminal history that
involves charges, possession of methamphetamine, burglary, driving under the
influence of alcohol—the current charge of unlawful possession of weapon by
felon. I do think it’s within my discretion to look at the totality of the circumstances,
in particular[] this timeline and the escalation of the events that has brought us from
where this original charge was filed to today.”
¶ 11 Accordingly, the circuit court found that defendant constituted a threat to the safety
of those individuals listed in the State’s proffer and
“at this point in time there are no set of conditions that could mitigate the real and
present threat that [defendant] has based upon the proffer, specifically the testimony
of Detective Lewis regarding the numerous police contacts, mental health concerns,
substance abuse concerns and for this Court possession of—on multiple occasions
and access to and possibly using dangerous weapons to fulfill threats that have been
made and conveyed to the Court.”
¶ 12 Moreover, the circuit court added, “a no stalking no contact order has been filed
today with respect to Angie Blasa. I do feel that based upon facts and circumstances offered by
*** Detective Lewis *** that is also appropriate for this Court to take into consideration when I’m
considering the threat posed by this defendant.”
¶ 13 The circuit court’s written order, entered that same day, found that the State had
established by clear and convincing evidence that defendant was a clear and present threat and that
no conditions or combination of conditions set forth in subsection (b) of section 110-10 of the
Code could mitigate the threat posed by defendant. [CITATION]. The
court’s written order further checked the following boxes under the section of the order that stated,
“The Court’s reason(s) for concluding the Defendant should be denied pre-trial release” were
based on the following factors: (1) the nature and circumstances of the offense(s) charged; (2) that
defendant’s prior criminal history is indicative of violent, abusive, or assaultive nature; (3) the
identity of any person(s) to whose safety defendant is believed to pose a threat, and the nature of
the threat; (4) any statement(s) being made by, or attributed to defendant, together with
circumstances surrounding them; and (5) defendant is known to possess or have access to weapons.
The court further stated that it “relie[d] upon further allegations and entry of no contact order this
date, 24OP7, by Angie Blasa, specific identifiable nature of subsequent[ ] threats and ongoing
criminal investigations.”
¶ 14 Defendant filed his notice of appeal pursuant to Illinois Supreme Court Rule 604(h)
(eff. Dec. 7, 2023) on February 1, 2024, raising the following issues: (1) the State failed to meet
its burden of proving by clear and convincing evidence that the proof is evident or the presumption
great that defendant committed the offense(s) charged; (2) the State failed to meet its burden of
proving by clear and convincing evidence that defendant poses a real and present threat to the
safety of any person or persons or the community, based on the specific, articulable facts of the
case; (3) the State failed to meet its burden of proving by clear and convincing evidence that no
condition or combination of conditions can mitigate the real and present threat to the safety of any
person or persons or the community, based on the specific, articulable facts of the case, or
defendant’s willful flight; and (4) the circuit court erred in its determination that no condition or
combination of conditions would reasonably ensure the appearance of defendant for later hearings
or prevent defendant from being charged with a subsequent felony or Class A misdemeanor. No
further explanations or details were offered. Defendant’s subsequent Rule 604(h)(2) memorandum
(Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023)), however, only addressed the issue of whether “no
condition or combination of conditions can mitigate the real and present threat to the safety of any
person or persons or the community.”
¶ 15 This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, defendant challenges the February 1, 2024, detention order, which we
review under an abuse of discretion standard. [CITATION], ¶¶ 10-11. “[I]n reviewing the circuit court’s ruling
for an abuse of discretion, we will not substitute our judgment for that of the circuit court, merely
because we would have balanced the appropriate factors differently.” (Internal quotation marks
omitted.) [CITATION], ¶ 11. “ ‘An abuse of discretion occurs when the [trial]
court’s decision is “arbitrary, fanciful or unreasonable” or where “no reasonable person would
agree with the position adopted by the [circuit] court.” ’ ” Id. ¶ 10 (quoting [CITATION], ¶ 9, quoting [CITATION]).
¶ 18 The Code abolishes traditional monetary bail and provides defendants with a
presumption in favor of pretrial release. 725 ILCS 5/110-1.5, 110-2(a) (West 2022). To detain a
defendant pretrial, the State has the burden of proving by clear and convincing evidence that
(1) “proof is evident or the presumption great” that the defendant committed a detainable offense,
(2) the defendant “poses a real and present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the case,” and (3) no condition or
combination thereof can mitigate the threat the defendant poses. Id. § 110-6.1(e)(1)-(3).
¶ 19 Here, we focus on the third requirement. We note that although defendant indicated
other issues in his notice of appeal, these issues were not elaborated on by defendant’s appellate
memorandum. The arguments as stated in the notice of appeal are made cursorily and without any
explanation of the grounds for seeking reversal. We will, therefore, confine our discussion to the
adequacy of the conditions of pretrial release to mitigate the threat defendant poses and find that
defendant did not carry his burden respecting the remaining issues listed in his notice of appeal.
See, e.g., [CITATION], ¶ 16.
¶ 20 Turning to the issue of whether the State failed to prove by clear and convincing
evidence that no condition or combination of conditions can mitigate the threat the defendant
poses, defendant raises two arguments. First, he asserts that the circuit court’s written order is
deficient and fails to comply with the requirements of section 110-6.1(h)(1). 725 ILCS
5/110-6.1(h)(1) (West 2022). Relatedly, he argues that the court’s oral pronouncements cannot be
considered in determining whether the court’s order satisfied section 110-6.1(h)(1). Id. Second,
defendant argues that, even looking at the court’s oral pronouncements, the court failed to
articulate sufficient grounds to explain why alternatives to detention could not work.
¶ 21 On defendant’s first point, we note that all appellate court districts have now
recognized that a circuit court’s oral pronouncements can be considered in conjunction with its
written explanation in assessing the court’s compliance with section 110-6.1(h)(1). See, e.g.,
[CITATION]. Indeed, given that the
point of requiring a written finding is to give notice of the reasons for the court’s findings for
appellate review, the same purpose is served when the court’s findings are stated orally. [CITATION]. Where the
[SEGMENT 35]
hearing transcripts and written order “ ‘provide an equal opportunity to review the validity of the
finding on appeal,’ ” it is sufficient to comply with section 110-6.1(h)(1)’s “written finding”
requirement. [CITATION]. We
therefore decline defendant’s suggestion that we should limit our consideration of the circuit
court’s reasoning solely to its written findings.
¶ 22 Turning our attention to the written findings in the February 1, 2024, detention
order, these findings outline the circuit court’s justification for determining that pretrial release
should be denied: the nature and circumstances of the offense charged; the violent, abusive, or
assaultive nature of defendant’s prior criminal history; the nature of the threat to an identifiable
individual, namely Blasa; and defendant’s known possession of, or access to, weapons. Moreover,
it considered the no contact order obtained that same day by Blasa, who had been the target of
defendant’s threats. These are proper written findings because they are appropriate factors for the
court’s consideration of defendant’s dangerousness under section 110-6.1(g)(1)-(9) and the
question of what conditions factors might mitigate the danger if defendant were released under
section 110-5(a)(1)-(7). See 725 ILCS 5/110-5(a)(1)-(7), 110-6.1(g)(1)-(9) (West 2022).
Considering the entire record before the court, we do not find an abuse of discretion. [CITATION].
¶ 23 Similarly, in its oral ruling, the circuit court made express findings concerning why
the real and present threat posed by defendant could not be mitigated. Specifically, the court stated:
“I find that the defendant does pose a threat to the safety of those listed in this
proffer and therefore at this point in time there are no set of conditions that could
mitigate the real and present threat that [defendant] has based upon the proffer,
specifically the testimony of Detective Lewis regarding the numerous police
contacts, mental health concerns, substance abuse concerns and for this Court
possession of—on multiple occasions and access to and possibly using dangerous
weapons to fulfill threats that have been made and conveyed to the Court.”
(Emphasis added.)
¶ 24 The circuit court further stated, “I do think it’s within my discretion to look at the
totality of the circumstances, in particular[] this timeline and the escalation of the events that has
brought us from where this original charge was filed to today.” The court’s statements, viewed
with its written findings, provide sufficient explanation of its grounds for ruling on the issue of
mitigation; we find no abuse of discretion in the court’s conclusion.
¶ 25 We note that defendant has criticized the circuit court’s failure to specifically
address or refute his suggestion that electronic monitoring or home confinement might be
reasonable conditions to mitigate the threat. Defendant treats electronic monitoring as a condition
which is sufficient until proven otherwise; we see no support for that specific proposition in the
law.
¶ 26 Where available, electronic monitoring may well be a useful tool to guard against
misconduct by a defendant who is released on conditions, but this does not mean that electronic
monitoring addresses every defendant’s potential dangerousness in every case. Electronic
monitoring that is not linked to a geographic limitation provides extremely limited information:
just the defendant’s location. When coupled with a geographic limitation such as home
confinement, electronic monitoring can help alert pretrial officers to a potential violation of that
geographic limitation. But any condition of release must be appropriately measured to meet the
danger presented in each case. Knowing that electronic monitoring might detect a failure to comply
with conditions of release does not diminish concerns that a particular defendant appears to present
a greater risk of noncompliance, especially if the consequences of noncompliance may be grave.
¶ 27 Here, the facts presented to the circuit court gave substantial reason to be concerned
that defendant presented a risk of lethal violence: prior weapons violations, prior threats aimed at
a specific individual, the discharge of weapons inside a residence, and possible mental health
issues underlying this history. In other words, it would be extraordinarily difficult to predict
defendant’s compliance with any conditions of release. Electronic monitoring offers the promise
of promptly informing law enforcement if defendant violated a home confinement restriction or—
- 10 - in the worst case scenario—where he was at the time he violated some other condition or made
good on his threat against Blasa. It would not, however, provide much in the way of prevention of
such a violation or threat, and it is reasonable to question what deterrent effect it would have when
the misdeeds at issue may relate to mental illness. We do not believe that the circuit court abused
its discretion in rejecting the sufficiency of electronic monitoring to guard against the potential
danger posed in this case.
¶ 28 Furthermore, we do not read section 110-6.1(h) as requiring a court to specifically
address each individual suggestion of conditions offered by a party in rendering its decision.
Overall, the record here confirms the circuit court followed and applied the Code when deciding
to detain defendant. Therefore, its decision is not arbitrary, fanciful, or unreasonable, and there
was no abuse of discretion. [CITATION], ¶ 10.
¶ 29 Similarly, we do not find that section 110-6.1(e)(2) requires the State to anticipate
and tender in advance its explanation of why a particular condition may or may not mitigate the
dangers defendant presents. See 725 ILCS 5/110-6.1(e)(2) (West 2022). As we said in [CITATION],
“We cannot expect the State to specifically raise and argue against every possible
condition of release in every case; there must be some limiting principle. In general,
it is reasonable to anticipate that the State will address conditions insofar as they
relate to the charged conduct, the defendant’s criminal history, the defendant’s risk
assessment score, and any other relevant considerations about the defendant known
to the State at the hearing.” [CITATION], ¶ 39.
¶ 30 As was the case in [CITATION], “the State’s central argument against the sufficiency of
conditions was defendant’s past misconduct, including violent misconduct occurring when
defendant was on probation.” Id. ¶ 40. Moreover, as in [CITATION], defendant here offered various
- 11 - options for possible conditions to mitigate the threat. Accordingly, “[i]t became the trial court’s
responsibility to evaluate each party’s argument and evidence.” [CITATION] As the circuit court did in
[CITATION], the circuit court below “found the State’s position to be more persuasive, as the court was
concerned about defendant’s continuing misconduct while on probation or pretrial release.” [CITATION]
We find no abuse of discretion.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the circuit court’s judgment.
¶ 33 Affirmed.
- 12 -
====== [CITATION]
Decision Under Review: Appeal from the Circuit Court of Jersey County, No. 24-CF-7; the
Hon. Allison S. Lorton, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Deborah Israel, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
- 13 -
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
2024 IL App (4th) 240218
FILED
NO. 4-24-0218 September 26, 2024
Carla Bender
IN THE APPELLATE COURT
th District Appellate
Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Henry County
SARA L. VINCENT, ) No. 24CF33
Defendant-Appellant. )
) Honorable
) Terence M. Patton,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Zenoff and Lannerd concurred in the judgment and opinion.
OPINION
¶1 Defendant, Sara L. Vincent, appeals the trial court’s order denying her pretrial
release pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) ([CITATION]), hereinafter as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly
known as the Pretrial Fairness Act (Act).
¶2 Defendant argues on appeal that the trial court lacked authority to deny her pretrial
release because (1) the State did not charge her with a detainable offense and (2) pretrial release
could not be revoked pursuant to section 110-6(a) of the Code ([CITATION])—the ground asserted by the State in its petition to detain—because she had not been
released on any of the charges in the present case, Henry County case No. 24-CF-33. Alternatively,
defendant asserts that the court abused its discretion when it granted the State’s petition to detain
because the State failed to meet its burden of proof that no condition or combination of conditions of pretrial release could mitigate any concerns posed by defendant’s release. We affirm the trial
court’s decision.
¶3 I. BACKGROUND
¶4 A. The Charges
¶5 On February 2, 2024, the State charged defendant in a two-count information with
aggravated battery to a peace officer (720 ILCS 5/12-3.05(d)(4) (West 2022)) and obstructing a
peace officer (id. § 31-1(a)(2)). On that same day, the State filed a petition to deny defendant’s
pretrial release using a preprinted form with boxes designated for the various grounds for pretrial
release. The State checked only one box, which alleged the following ground for pretrial detention:
“Defendant is on Pretrial Release in case number 2024CM10, a felony or Class A misdemeanor
and defendant is charged with a felony or a Class A offense that was committed while the
defendant was on Pretrial Release in the instant offense; See: 725 ILCS 5/110-6(a).”
¶6 For its factual basis, the State asserted the following in its petition:
“02/02/2024 deputies dispatched to IL Hwy. 81 between Cambridge and
Andover for person walking on highway. Subject ID’d as Sara Vincent. Vincent
[would not] stop walking on the roadway and crossing the lanes of traffic when
ordered by the deputies. Placed under arrest. Vincent had items wrapped around the
handcuffs. Sgt. Hendrick removed her cuffs to unwrap the items. Vincent bit him
on the leg above his knee resulting in bite marks.”
¶7 B. The Detention Hearing
¶8 On February 5, 2024, the trial court conducted a detention hearing.
¶9 Before the detention hearing, the trial court admonished defendant of the charges
and advised her of her rights. The following exchange occurred:
“[THE COURT]: You have the right to be represented by an attorney, and
if you can’t afford an attorney, one is appointed for you.
Can you afford to hire your own attorney?
THE DEFENDANT: No. I’m not willing to pay an attorney for anything. I
have no—I can speak for myself.
THE COURT: So are you—are you asking for a public defender? Or are
you wanting to waive your right to an attorney and represent yourself?
THE DEFENDANT: I don’t want to waive my right to it, because if I do
need some assistance to deal with the legal terms that I haven’t studied yet—
THE COURT: Sure.
THE DEFENDANT:—then yeah.
THE COURT: Okay. You represent her on the misdemeanor; is that—
[DEFENSE COUNSEL]: I do, Your Honor.
THE COURT:—correct? That 24-CM-10?
All right. I will appoint public defender to represent you.”
¶ 10 The trial court then proceeded to the detention hearing:
“[THE COURT]: Okay. [Defense counsel], have you received a copy of the
State’s Verified Petition to Deny Pretrial Release?
[DEFENSE COUNSEL]: I have, Your Honor.
THE COURT: Have you had the opportunity to confer with your client?
[DEFENSE COUNSEL]: I have, Your Honor.
THE COURT: Are you ready to proceed today?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Okay. [State], you may present your evidence or proffer.”
¶ 11 The State requested the trial court to take judicial notice of the pretrial investigation
report (PTI), which the court granted. The PTI contained only defendant’s criminal history because
she declined to be interviewed. The PTI showed that defendant was on probation for aggravated
battery to a peace officer, possession of methamphetamine, and obstructing justice. Defendant was
also on pretrial release for aggravated assault with a deadly weapon, a Class A misdemeanor.
Defense counsel proffered that “my client has stated that if she were to be released, she would go
to her parents’ house here in Cambridge, and that’s the proffer that I have at this time.”
¶ 12 The State then made the following argument:
“As the Court has already put forth, she is on probation at this current time
for a similar offense. She is on pretrial release for 24-CM-10 for aggravated assault
with a deadly weapon.
I don’t believe there is a series of conditions that will prevent [defendant]
from accruing further cases, and there is a—she’s charged in at least two situations
here with two separate victims.
So, it’s the State’s position that pretrial release should be denied at this point
in time.”
¶ 13 In response, defense counsel asserted the following:
“Your Honor, again, the State has to show three things here, that the—that
she committed these offenses, basically a clear and convincing standard; number
two is that she is a danger to any person or persons in the community; but in the
third one that I want to talk about here, which is that no condition or combinations
of conditions that can prevent this from happening again, [defendant] is saying
she’s willing to wear an ankle bracelet which would help give the Court some as-
surances of where she is and give the pretrial services officer an ability to keep
track of her to some degree, as well as she’s willing to live at her parents’ house
here in Cambridge. Again, with her parents around her, it would give her a little bit
more structure and give her the ability to deal with any issues and not have an oc-
currence like this happen again.
So, we don’t believe the State has met the burden in its petition.”
¶ 14 The trial court granted the State’s motion to detain defendant, explaining—along
with some discussion with defendant—its reasoning as follows:
“So, she’s on probation for ag battery to a peace officer, obstructing justice.
She’s got a pending charge for ag assault with a deadly weapon, a knife. *** She’s
on pretrial release on that.
THE DEFENDANT: It wasn’t a deadly weapon. It was a simple steak knife.
THE COURT: Okay. She’s on pretrial release for that ag assault.
Then she’s walking down the highway, cops find her, try to get her off the
highway, and she resists that arrest and bites an officer. So, another aggravated
battery to a peace officer.
So, I find the proof is evident or the presumption great that she committed
the offense as listed, ag battery to a peace officer. I find that she poses a real and
present threat to the safety of person or community, because these acts of violence
or threats keep happening.
So, the question is[:] is there a condition or combination of conditions that
can mitigate the real and present threat. [Defense counsel] has proposed an ankle
bracelet.
THE DEFENDANT: I don’t think it’s necessary. I’m not going to run on
charges like these, because I am going the fight them because I didn’t do anything
wrong. I didn’t assault him with a weapon at all.
[DEFENSE COUNSEL]: Ma’am [(defendant)], please don’t say anything
more at this point.
THE COURT: The ankle monitor lets you monitor where they’re going, but
[SEGMENT 2]
it’s not going to stop her from having contact with other people in the community,
officers and other citizens, and an ankle monitor isn’t going to stop her from making
threats or battering other people. I don’t think this is the type of danger that an ankle
monitor can mitigate.
So, I find that there is no condition or combination of conditions that can
mitigate the real and present threat.
So, the State’s petition is granted. The defendant is denied pretrial release.”
¶ 15 The trial court entered a written detention order, in which it found that (1) “[t]he
charged offense/circumstance is eligible for detention” and (2) clear and convincing evidence
existed to meet the dangerous standard contained in section 110-6.1(a)(1)-(6) of the Code (725
ILCS 5/110-6.1(a)(1)-(6) (West 2022)). The court further found that less restrictive conditions
would not assure the safety of the community because defendant was “on probation for aggravated
battery/peace officer, on pretrial release for aggravated assault in 24CM10, acts/threats of violence
keep occurring.” The court concluded that pretrial release should be denied because an “ankle
monitor wouldn’t stop her from making threats or battering others.”
¶ 16 C. The Appellate Proceedings
¶ 17 In February 2024, defendant filed a notice of appeal utilizing the notice of appeal
form in the Article VI Forms Appendix to the Illinois Supreme Court Rules. See Ill. S. Ct. Rs. Art.
VI Forms Appendix R. 606(d). In her notice of appeal, defendant argued only that the State failed
to meet its burden of proving by clear and convincing evidence that no condition or combination
of conditions of release could mitigate the threat posed by defendant’s release. Specifically,
defendant asserted the following:
“The State could not articulate specific facts that make the defendant non-
compliant with any condition the court could impose. [Defendant] has the ability to
live with her parents, who could assist her with making sure she complied with the
terms of pre-trial release. She was also willing to agree to wear an ankle bracelet to
make sure she is in compliance.”
¶ 18 The Office of the State Appellate Defender (OSAD) was appointed to represent
defendant on appeal, and in March 2024, OSAD filed, on defendant’s behalf, a memorandum in
support of the appeal, arguing that (1) defendant did not commit a detainable offense and (2) the
State failed to prove that no conditions of release would mitigate the threat.
¶ 19 In April 2024, this court affirmed the trial court’s decision, concluding the trial
court did not abuse its discretion by granting the State’s petition for pretrial detention. [CITATION].
¶ 20 Defendant filed a petition for leave to appeal to the Illinois Supreme Court. In June
2024, the supreme court entered a supervisory order denying the petition for leave to appeal but
instructing this court to vacate its prior decision and issue a decision pursuant to Illinois Supreme
Court Rule 23(a), (b) (eff. Feb. 1, 2023). [CITATION]
¶ 21 In August 2024, this court vacated its prior decision, and we now affirm for the
following reasons.
¶ 22 II. ANALYSIS
¶ 23 Defendant argues on appeal that the trial court lacked authority to deny her pretrial
release because (1) the State did not charge her with a detainable offense and (2) pretrial release
could not be revoked pursuant to section 110-6(a) of the Code—the ground asserted by the State
in its petition to detain—because she had not been released on any of the charges in the present
case, No. 24-CF-33. Alternatively, defendant asserts that the court abused its discretion when it
granted the State’s petition to detain because the State failed to meet its burden of proof that no
condition or combination of conditions of pretrial release could mitigate any concerns posed by
defendant’s release. We affirm the trial court’s decision.
¶ 24 As an initial matter, defendant concedes that she forfeited her claims that (1) the
State did not charge her with a detainable offense and (2) pretrial release could not be revoked
pursuant to section 110-6(a) of the Code. See [CITATION] (“A
defendant forfeits an issue for purposes of appellate review by failing to object to the alleged error
or raise it in a written posttrial motion.”). Nonetheless, she contends that we may review her claims
of error as either second-prong plain error or ineffective assistance of counsel. We address each
claim in turn.
¶ 25 A. Defendant’s Forfeited Arguments
¶ 26 In her memorandum, defendant argues as follows:
“While the trial court may have been authorized under section 110-6(a) to revoke
[defendant’s] pretrial release in 202[4] CM 10 based on the allegation of new
charges, the trial court did not have the authority to deny [defendant] pretrial release
in the instant case because the charged aggravated battery of a peace officer offense
is not a detainable offense. As a result, this Court should vacate the trial court’s
detention order.”
¶ 27
. Second-Prong Plain Error
¶ 28 Defendant does not argue that the evidence was closely balanced. Instead, she
claims that the trial court’s ordering her pretrial detention when she had not been charged with a
detainable offense rises to the level of structural error. We emphatically disagree.
¶ 29 a. The Applicable Law
¶ 30 The First District recently explained second-prong plain error in [CITATION],
¶ 69, in which it wrote the following:
“ ‘Error under the second prong of plain error analysis has been equated with
structural error, meaning that automatic reversal is only required where an error is
deemed to be a systemic error that serves to “erode the integrity of the judicial
process and undermine the fairness of the defendant’s trial.” ’ [CITATION],
¶ 78 (quoting [CITATION]). ‘In other words, “[a]n error is typically designated as structural
only if it necessarily renders a criminal trial fundamentally unfair or an unreliable
means of determining guilt or innocence.” ’ Id. (quoting [CITATION], 609 (2010)). ‘Structural errors have been recognized in only a limited
class of cases including: a complete denial of counsel; trial before a biased judge;
racial discrimination in the selection of a grand jury; denial of self-representation
at trial; denial of a public trial; and a defective reasonable doubt instruction.’ Id.
(citing [CITATION]).”
¶ 31 b. This Case
¶ 32 Although the usual first step in a plain error analysis is to determine whether there
was any error at all, we need not do so here because we conclude that any alleged error in the
detention proceedings does not rise to the level of structural error.
¶ 33 Both the Illinois Supreme Court and the United States Supreme Court have found
structural error only in a very narrow and extreme set of circumstances. [CITATION]. And for good reason: structural error
requires automatic reversal. When a defendant is completely denied counsel or the ability to
proceed pro se at trial, that defendant has been deprived of a meaningful chance to defend herself
in whichever way she sees fit. See [CITATION], ¶ 69. Similarly, a nonpublic
trial, a proceeding before biased judge, racial discrimination in the selection of a grand jury, or a
defective reasonable doubt instruction all cast doubt on the legitimacy of the proceedings and
render the proceedings fundamentally unfair. Id. In these situations, prejudice is presumed because
of the magnitude of the error and its possible effect on the defendant’s case.
¶ 34 Defendant claims that her pretrial detention, despite not being charged with a
detainable offense as required by statute, amounts to structural error because it affects her
fundamental liberty interest. Defendant’s position is clearly untenable because by that logic, every
error in a criminal trial could be said to affect a defendant’s fundamental right to liberty. Further,
for the following reasons, the very nature of proceedings under the Act makes a colorable claim
of structural error nearly impossible to assert.
- 10 - ¶ 35 The Code requires a trial court to revisit a defendant’s pretrial detention or
conditions of pretrial release each time a defendant appears in court (725 ILCS 5/110-5(f-5), 110-
6(j), 110-6.1(i-5) (West 2022)), giving her and the court multiple opportunities to correct any errors
regarding her detention or address new issues pertaining thereto. Experience shows that defendants
charged with felony offenses typically appear in court once every 45 to 60 days; that means every
45 to 65 days, a defendant will get to revisit her pretrial detention and raise questions with the
court concerning her detention.
¶ 36 This timetable for additional judicial scrutiny is much faster than the appeals
process involving routine appeals from criminal convictions. Further, structural error is
significantly less likely to arise in proceedings under the Act because, unlike the usual appeals
process, defendants are required to file a motion for relief in the trial court as a precondition to
appellate review. Ill. S. Ct. R. 604(h)(2) (eff. Apr. 15, 2024).
[SEGMENT 3]
¶ 37 Defendant cites this court’s decision in [CITATION],
¶¶ 15, 22-23, as support for her second-prong plain error claim. However, [CITATION]is easily
distinguishable and serves only to demonstrate the exceedingly limited circumstances in which a
reviewing court will even entertain granting relief under the second prong.
¶ 38 In [CITATION], the defendant was completely denied the ability to participate in the
pretrial detention proceedings because he (1) was not personally present, (2) could not hear what
was being said in the courtroom, and (3) could not communicate with the trial court for the majority
of the hearing because his microphone was muted. Id. Because he was unable to hear or participate
in criminal proceedings to determine whether he was eligible for pretrial release, we concluded
that he was denied his right to be heard—a cornerstone of all due process rights—and ordered the
detention order vacated and remanded for further proceedings in compliance with the Act. Id.
- 11 - ¶ 39 As [CITATION] shows, structural errors will be found in pretrial detention cases, like all
criminal cases, only when the error is so egregious that it renders the proceedings fundamentally
unfair or erodes the integrity of the judicial process, such as the complete deprivation of a core
constitutional right.
¶ 40 By contrast, in this case, defendant was personally present and was able to speak to
the trial court throughout the proceedings. The court ensured that defendant was advised of her
right to proceed with or without counsel and made sure defendant wished to be represented by
counsel before appointing a public defender. Moreover, the court appointed as defendant’s counsel
the same attorney who was representing defendant in her misdemeanor case, and the court
confirmed on the record that counsel (1) had received the State’s petition to detain, (2) had an
adequate opportunity to confer with defendant, and (3) was ready to proceed with a hearing on the
petition.
¶ 41 Accordingly, we conclude that the alleged error falls far short of constituting a
structural error.
¶ 42
. Ineffective Assistance of Counsel
¶ 43 Assuming her plain error argument fails, defendant argues in the alternative that
her counsel rendered ineffective assistance by failing to (1) argue in the trial court that defendant
was not charged with a detainable offense or (2) raise the same claim in her notice of appeal as a
basis for reversal. We disagree.
¶ 44 a. The Applicable Law
¶ 45 “To demonstrate ineffective assistance of counsel, a defendant must show that
(1) the attorney’s performance fell below an objective standard of reasonableness and (2) the
attorney’s deficient performance prejudiced the defendant in that, absent counsel’s deficient
- 12 - performance, there is a reasonable probability that the result of the proceeding would have been
different.” [CITATION], ¶ 90 (citing [CITATION]). “A reasonable probability is a probability which undermines confidence in the
outcome of the trial.” [CITATION], ¶ 84. “Because the defendant must satisfy both prongs of this test, the failure to establish either is fatal to the claim.” [CITATION], ¶ 90 (citing [CITATION]). To succeed on a claim of ineffective
assistance of counsel, defendant must overcome the strong presumption that counsel’s actions were
the result of trial strategy. [CITATION], ¶ 83. “When a claim of ineffective
assistance of counsel was not raised at the trial court, this court’s review is de novo.” [CITATION], ¶ 85.
¶ 46 b. This Case
¶ 47 i. Prejudice
¶ 48 At the detention hearing, the trial court confirmed with defense counsel that he
currently represented defendant in the pending misdemeanor case for which defendant was on
pretrial release. Given the context that (1) the State sought to detain defendant on the grounds that
she committed a felony offense while on pretrial release in case No. 24-CM-10, and the State cited
section 110-6(a) in its petition, (2) counsel was already representing defendant in that
misdemeanor case, and (3) section 110-6(a) permits a court, on its own motion, to move to revoke
pretrial release when a defendant has committed a subsequent felony, counsel likely recognized
that any objection to the technical defects in the proceedings would ultimately be futile because
the trial court could have corrected them immediately simply by calling case No. 24-CM-10 for a
hearing instanter. Because (1) defendant concedes that she was detainable pursuant to section 110-
6(a) of the Code and (2) the Code authorized the trial court to move to revoke pretrial release and
conduct a hearing on the same on its own motion (725 ILCS 5/110-6(a) (West 2022)), defendant
- 13 - cannot establish any prejudice from the technical defect she has identified.
¶ 49 ii. Trial Strategy
¶ 50 Because we have determined that no prejudice could result, we need not address
whether counsel performed deficiently. However, we offer the following observations, which
provide additional support for our conclusion that counsel did not render ineffective assistance.
Indeed, the record shows that counsel likely did not object to the State’s petition as a matter of
strategy. Had counsel raised the objection now raised on appeal, the State likely would have
corrected the procedural error by simply restyling its petition to detain in the felony case as a
petition to revoke pretrial release in the misdemeanor case, which appears to be the substance of
the State’s and defense counsel’s arguments and the trial court’s reasoning for detention. Indeed,
the State never argued—either in its written motion or at the detention hearing—that defendant
had committed an independently detainable offense; it very clearly sought to detain defendant only
on the ground that she committed a felony offense while on pretrial release.
¶ 51 We note that at a revocation hearing, the State must prove, “by clear and convincing
evidence, that no condition or combination of conditions of release would reasonably *** prevent
the defendant from being charged with a subsequent felony or Class A misdemeanor” (id.), which
is what both the State and defense counsel actually argued at the hearing, suggesting that counsel
understood that the State’s petition for detention was more appropriately characterized as a petition
for revocation. See [CITATION] (reaffirming the well-settled rule that the substance of a motion’s content controls over its title
when determining its nature). In this situation, defendant asks this court to elevate form over
substance by assuming that the State (1) was not seeking a revocation and (2) could not have easily
(a) restyled its petition as one to revoke pretrial release rather than deny it and (b) refiled the
- 14 - petition under the 24-CM-10 case number instead of in the new felony case. We decline to do so.
¶ 52 We emphasize that the State’s petition upon which the February 2024 detention
hearing was conducted alleged as the basis for defendant’s detention only that defendant was “on
Pretrial Release in case number 2024CM10, a felony or Class A misdemeanor and defendant is
charged with a felony or a Class A offense that was committed while the defendant was on Pretrial
Release in the instant offense; See: 725 ILCS 5/110-6(a).” OSAD concedes on appeal that the trial
court “may have been authorized under [that] section” to revoke defendant’s pretrial release but
argues on appeal the trial court could not deny defendant pretrial release because the charged
offense of aggravated battery of a peace officer was not a detainable offense. Supra ¶ 26.
¶ 53 Defendant essentially argues that counsel was ineffective for failing to challenge
the State’s petition to detain on a ground the State never asserted. However, in our view, counsel
quite likely did not object to the State’s petition because counsel recognized that defendant was
detainable pursuant to section 110-6(a), as OSAD concedes on appeal. Accordingly, defendant’s
counsel’s performance during the hearing cannot be viewed as falling “below an objective standard
of reasonableness” when the State was not proceeding on the grounds defendant contends on
appeal were improper.
¶ 54 Accordingly, we conclude that defendant did not receive ineffective assistance of
counsel.
¶ 55 B. Conditions of Release
¶ 56 Having concluded that defendant’s other arguments fail, we last address whether
the trial court abused its discretion by concluding that defendant be detained.
¶ 57
. The Applicable Law
¶ 58 Section 110-2(a) of the Code (725 ILCS 5/110-2(a) (West 2022)) provides that all
- 15 - criminal defendants are presumed eligible for pretrial release. A defendant may be denied release
only if, upon verified petition, the State proves by clear and convincing evidence at a detention
hearing that, in pertinent part, (1) the proof is evident or the presumption great the defendant
committed a detainable offense, (2) the defendant poses a threat to the safety of the community or
any person in the community, and (3) no combination of conditions can mitigate the threat to the
safety of the community. Id. § 110-6.1(a), (e)(1)-(3). We review a trial court’s ruling denying a
defendant pretrial release for an abuse of discretion. [CITATION], ¶ 13. “An abuse of discretion occurs when the [trial] court’s decision is arbitrary, fanciful or
[SEGMENT 4]
unreasonable or where no reasonable person would agree with the position adopted by the [trial]
court.” (Internal quotation marks omitted.) Id.
¶ 59
. This Case
¶ 60 Before the trial court, defense counsel addressed only whether appropriate
conditions could mitigate any threat posed by defendant’s pretrial release, implicitly conceding (or
at least indicating to the trial court) that the State had demonstrated (1) the proof was evident or
presumption great that defendant committed a detainable offense and (2) defendant posed a threat
to the safety of the community. In her notice of appeal and memorandum in support thereof,
defendant contends that the State failed to present any evidence about the inadequacy of pretrial
conditions. Further, defendant claims that the court’s ruling that no set of conditions could mitigate
the risk defendant posed was an abuse of discretion because she was willing to wear a GPS
monitoring device and would be living with her parents, who would give her structure and stability.
We disagree.
¶ 61 Here, the record demonstrates that the trial court considered all available pretrial
conditions when addressing the State’s petition to deny pretrial release. The State’s petition was
- 16 - premised solely on defendant’s committing the felony offenses charged in case No. 24-CF-33
while she was on pretrial release for a Class A misdemeanor in case No. 24-CM-10, namely,
aggravated assault with a deadly weapon. See [CITATION] ¶ 40 (rejecting defendant’s argument that State
failed to meet its burden of proof on conditions of release where the State’s “central argument
against the sufficiency of conditions was defendant’s past misconduct” while on probation). “This
is a highly relevant concern, as a defendant’s release on conditions depends on the court having
confidence that the defendant will comply with those conditions.” (Emphasis in original.) [CITATION]
¶ 62 The cases cited by defendant are distinguishable because the trial court in the
present case, unlike those other cases, explicitly considered and rejected the conditions of release
that defendant claims would have been sufficient. See [CITATION] ¶¶ 41-42 (distinguishing cases that
reversed a pretrial detention order for a trial court’s failure to address pretrial release conditions
and holding that a trial court is presumed to have considered conditions of release when (1) the
parties addressed conditions in their arguments and (2) the court gave a specific rationale for its
finding).
¶ 63 Contrary to defendant’s claims, we are not convinced that trial court erred by
concluding that her living with her parents and wearing an ankle monitor would not decrease the
risks she posed to the community, including to law enforcement. As the court noted, defendant
had a history of resisting arrest and battering police officers. Although an ankle monitor would
allow the authorities to know where defendant was at any given time, it would not stop her from
leaving a residence, as she did in this case, which might then require police intervention. Similarly,
the court could have reasonably concluded that defendant might pose a threat to her parents, which
would also require police intervention. Ultimately, defendant’s recent and persistent history of
battering police officers when they attempted to stop her illegal and potentially dangerous conduct
- 17 - simply could not be mitigated if she were released. Accordingly, we conclude that (1) the State
met its burden of proof and (2) the trial court appropriately exercised its discretion to deny
defendant pretrial release.
¶ 64 III. CONCLUSION
¶ 65 For the reasons stated, we affirm the trial court’s judgment.
¶ 66 Affirmed.
- 18 - [CITATION]
Decision Under Review: Appeal from the Circuit Court of Henry County, No. 24-CF-33;
the Hon. Terence M. Patton, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Cristina Law Merri-
for man, of State Appellate Defender’s Office, of Chicago, for appel-
Appellant: lant.
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys Ap-
for pellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
- 19 -
NOTICE
IL App (4th) 240664-U
This Order was filed under
FILED
Supreme Court Rule 23 and is July 19, 2024
NO. 4-24-0664
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Tazewell County
BRIAN R. CHILDERS, ) No. 24CF197
Defendant-Appellant. )
) Honorable
) Christopher R. Doscotch,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Justices Lannerd and Vancil concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not abuse its discretion in denying defendant pretrial
release.
(2) Defendant’s detention is not barred by collateral estoppel.
¶2 Defendant, Brian R. Childers, appeals the trial court’s order denying him pretrial
release under section 110-6.1(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/110-6.1(a) (West 2022)), hereinafter as amended by Public Acts 101-652, § 10-255 and
102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act. Defendant
argues the court abused its discretion in granting the State’s petition to deny him pretrial release
and the court should have dismissed the State’s petition under the doctrine of collateral estoppel.
We affirm. ¶3 I. BACKGROUND
¶4 This appeal involves defendant’s March 18, 2024, conduct in two counties: Peoria
County and Tazewell County. In Peoria County, defendant was charged on March 19, 2024, with
aggravated assault. The State alleged defendant displayed a handgun while at 610 South Western
Avenue in Peoria, Illinois, placing Terravis Ward, a police officer, in reasonable apprehension of
receiving a battery. As charged, the aggravated assault was a Class 4 felony.
¶5 In the Peoria County case, the State sought the pretrial detention of defendant. At
the hearing on the State’s request, the State proffered Officer Ward attempted to conduct a traffic
stop of a Honda pickup that defendant was driving. After Officer Ward activated his lights and
siren, the pickup sped away from him. A short time later, Officer Ward saw the pickup pull into
a parking lot on Western Avenue. Officer Ward approached defendant. Defendant pointed a
“compact-style handgun” at Officer Ward, returned to his pickup, and drove away. Officers later
spoke with Leah Sloan, who had been in the pickup with defendant. Officers ultimately found
defendant at the Par-A-Dice Casino in East Peoria, Illinois, where he was taken into custody. He
was found in possession of a handgun and arrested by the Tazewell County Police Department.
Defendant admitted pointing the gun at Officer Ward. The pretrial report indicates defendant
scored a 2 out of 14 on the pretrial risk assessment, indicating he was suitable for pretrial
supervision. The trial court denied the State’s petition for pretrial detention.
¶6 In Tazewell County, on March 22, 2024, defendant was charged with three
offenses for the events occurring on March 18, 2024. Count 1 charges defendant committed
armed violence (720 ILCS 5/33A-2(a) (West 2022)), a Class X felony. Counts 2 and 3 allege
defendant committed unlawful possession of methamphetamine (720 ILCS 646/60(a)(1), (a)(3)
(West 2022)).
==== Part of a Court Ruling ====
¶7 That same day, the State sought the pretrial detention of defendant. Defendant
responded by filing a motion to dismiss based on collateral estoppel. Defendant asserted because
the Peoria County court had considered the same issues and ruled pretrial detention was not
appropriate, the State could not seek his detention on the same issues in Tazewell County.
¶8 The trial court held a hearing on the motion to dismiss the State’s petition and the
issue of pretrial detention. The court began by addressing the motion to dismiss. For that motion,
defendant emphasized the case, though occurring in two counties, was the result of “one
elongated incident.” The court denied the petition upon finding no issue preclusion. The court
emphasized the Code involves consideration of the “ ‘[n]ature and circumstances of the offense
charged,’ ” and the charged offenses were different in the two cases.
¶9 On the matter of the State’s petition to deny defendant pretrial release, the State
presented testimony and made a proffer to detain defendant under both the dangerousness and
willful-flight standards. The State first called Officer Ward. According to Officer Ward, he was
[SEGMENT 5]
on patrol at 5 a.m. on March 18, 2024, when he observed a Honda pickup parked in front of 2700
West Starr Street in Peoria. The house at that address “seemed like a flop house” in which illegal
narcotics activity occurred. When the pickup left the residence, Officer Ward followed. Before
turning onto Western Avenue, the driver of the pickup did not activate a turn signal and nearly
caused an accident. Officer Ward attempted a traffic stop. After Officer Ward activated his
overhead lights and siren, the pickup “[t]ook off at a high rate of speed.” Officer Ward turned off
his lights and sirens and stopped pursuit. Officer Ward continued to patrol the area and located
the pickup in a parking lot within approximately one minute. Officer Ward contacted dispatch
and then reactivated his lights. Officer Ward exited his squad car and approached the driver’s
side of the pickup. Officer Ward asked defendant to step out of the vehicle. Defendant did not
comply. The officer then unholstered his sidearm and pointed it in defendant’s direction.
Defendant responded by “produc[ing] a small compact handgun and pointed it directly at”
Officer Ward. Officer Ward, who feared for his life, retreated to the passenger side tailgate of the
pickup and held his firearm directly at the driver’s side. Defendant drove away. Officer Ward
returned to 2700 West Starr Street and spoke to Sloan. Sloan identified defendant as the driver of
the pickup. She said she had been riding with him and asked him to drop her off, as “he was
acting erratic, appeared to be intoxicated, speeding, and driving recklessly through the city.”
¶ 10 The State then made a proffer in support of its petition. According to the proffer,
when defendant pulled the gun on Officer Ward, defendant said, “Don’t f*** with me, Officer.”
Defendant was found midmorning, around checkout time, outside the Par-A-Dice Casino in
Tazewell County. Because officers knew defendant had a gun, they drew their weapons. Officers
were ordering him to the ground, and defendant stood there for several minutes, “quietly
drinking his coffee.” The State emphasized defendant was from Alabama and not an Illinois
resident. When defendant was arrested, approximately 18 grams of methamphetamine were
found in his belongings inside his hotel room.
¶ 11 Defense counsel emphasized there was no physical altercation at the time of
defendant’s arrest and thus no evidence of violence in defendant’s Tazewell County behavior.
Defendant’s father had recently died. Defense counsel argued the pretrial bond report from
Peoria County shows defendant scored a 2 out of a possible 14, showing him to be a low risk for
flight or future offenses.
¶ 12 Defense counsel called Brian Long, a Tazewell County probation officer, to
testify regarding the pretrial investigation report he prepared for defendant’s case. Officer Long
prepared defendant’s report on March 25, 2024. Officer Long used the Revised Virginia Pretrial
Risk Assessment Instrument and found defendant’s risk of pretrial misconduct was a 10 out of
14. Officer Long testified, if the charges for Peoria County and Tazewell County were made at
the same time, defendant would have scored a 6 out of 14. Officer Long testified the drug-
possession charges would have scored at 3 points, criminal history at 2 points, and
unemployment at 1 point. With this adjustment, defendant showed a 90% likelihood of appearing
in court and not committing an additional offense. However, given defendant was charged with a
Class X felony, Officer Long’s recommendation at the end of the report would not change.
Officer Long’s pretrial report concluded with the following sentence: “Based on the defendant’s
risk of misconduct and the nature of the offense, Pretrial Services is unable to provide reasonable
assurance of the defendant’s future compliance with conditions of release.”
¶ 13 Defense counsel noted defendant was cooperative during the three days he was on
pretrial supervision between his release from Peoria County and his arrest in Tazewell County.
Defense counsel requested defendant be released with the same conditions imposed in Peoria
County, such as home confinement. According to the pretrial investigation report, defendant, a
lifelong resident of Alabama, had been staying with his cousin in Peoria since January 2024.
¶ 14 The trial court granted the State’s petition. The court found the State proved by
clear and convincing evidence the proof was evident and presumption great defendant committed
the qualifying offense, a fact conceded by defendant. The court further noted defendant had
access to weapons and despite denying substance-abuse issues, he was found with 18 grams of
methamphetamine and was driving recklessly through the city. Defendant also had a prior
conviction for driving under the influence (DUI). The court found the State proved by clear and
convincing evidence defendant poses a real and present threat to the safety of the community,
including the police. The court further found the State proved willful flight:
“The defendant has no ties to the community here. He just came here in January.
He is staying in a hotel. He indicates he lives with his father. The other one he’s
staying with his cousin. And his whole life he has lived in Alabama. We’re on a
Class X felony punishable by up to 15 years.”
The court further found no condition or combination of conditions could mitigate the threat. The
court noted defense counsel was correct in that the information for this case was available to the
Peoria County court as well but found the difference in the charges filed was key, emphasizing
defendant, in Tazewell County, was charged with a Class X felony and methamphetamine-
possession charges.
¶ 15 After the hearing, the trial court also entered a written detention order. The court
found defendant poses a real and present threat and checked the following boxes to support its
finding: “Violent nature of the offense”; “Alleged use of a weapon”; “Identity of those to whom
Defendant poses a threat, and the nature of the threat”; “Defendant being known to possess
weapons, or have access to weapons”; and “Defendant’s history of violent/abusive behavior.”
For the finding the threat of defendant’s release cannot be mitigated by any release condition or
combination of conditions, the court added the following: “Articulable facts of the case - reasons
marked above and for reasons stated in the record.”
¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, defendant first contends the State presented no argument or evidence
as to why he could not be released on conditions, despite the fact the Peoria County court found
defendant could be released on conditions based on similar facts resulting in the charges.
Defendant argues the State did not argue or prove no condition or combination of conditions can
mitigate any threat. Defendant maintains the trial court improperly relied on its baseless finding
defendant had a significant history of alcohol and substance abuse, as his only offense was a DUI
from 2000. Defendant further contends the court’s ruling was based primarily on facts occurring
in Peoria County during the attempted traffic stop as reasons to deny him pretrial release but
failed to explain why the Peoria County court’s decision finding pretrial conditions can be
imposed was erroneous. Defendant further highlights his minimal criminal history, the absence
of any failures to appear, no reported violations of conditions of release, and his successful use of
the GPS monitor.
¶ 19 Under the Code, courts presume all criminal defendants are eligible for pretrial
release. [CITATION] (West 2022). Before the State may overcome that presumption,
the State must prove multiple elements by clear and convincing evidence. One is to prove “the
defendant poses a real and present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the case.” Id. §§ [CITATION]. For this
element, the Code gives the trial court broad discretion in choosing what factors to consider. See
id. § [CITATION] (setting forth factors a trial court may consider when considering
dangerousness). These factors include the nature and circumstances of the offense charged (id.
§ [CITATION]), the defendant’s history and characteristics, including whether there is evidence
of violent, abusive or assaultive behavior (id. § [CITATION]), and whether the defendant is
known to possess or have access to any weapon (id. § [CITATION]). Defendant does not
challenge the determination he poses a threat to the community and the police.
¶ 20 In addition, before pretrial release may be denied under the dangerousness
standard, subsection (e)(3)(i) of the Code requires the State prove “no condition or combination
of conditions set forth in subsection (b) of Section 110-10 of this Article can mitigate *** the
real and present threat to the safety of any person or persons or the community, based on the
specific articulable facts of the case.” Id. § 110-6.1(e)(3)(i). In its detention order, the trial court
must “make a written finding summarizing the court’s reasons for concluding that the defendant
should be denied pretrial release, including why less restrictive conditions would not avoid a real
and present threat *** based on the specific articulable facts of the case.” Id. § (h)(1). We are
mindful trial-court decisions and findings related to pretrial detention are reviewed for an abuse
of discretion. [CITATION], ¶ 35. This court will find an abuse
of discretion if we conclude the trial court’s decision is unreasonable, arbitrary, or fanciful or we
[SEGMENT 6]
find no reasonable person would agree with that decision. [CITATION], ¶ 10.
¶ 21 First, we find unpersuasive the argument the State did not prove this element
based on the fact it did not argue or present evidence no conditions or combination of conditions
could mitigate defendant’s threat. Proof of the dangerousness standard does not require the State
to argue the no-conditions element is satisfied. The Code requires the State to prove the
no-conditions element “by clear and convincing evidence.” 720 ILCS 5/110-6.1(e)(3)(i) (West
2022). As shown below, the State proffered and presented evidence relevant to this element.
¶ 22 Next, we find no abuse of discretion in the trial court’s conclusion the
no-conditions element was sufficiently proved. The State’s proffer and testimony by Officer
Ward shows defendant’s disregard for authority and gives support to the conclusion defendant
would not abide by conditions of release. The proffer and testimony further shows if defendant
did not comply and an arrest would be necessary, the lives of police officers would be
endangered. The circumstances of the offenses establish defendant possessed a weapon and for
minutes disregarded police orders in a public place. Defendant had done so after driving
recklessly and brandishing a weapon and threatening an officer attempting to stop his reckless
behavior. The record supports the court’s finding defendant was not credible about his lack of a
drug or alcohol problem given the record shows he had a DUI conviction, albeit this was an older
offense, and he was in possession of a Class 1 felony amount of methamphetamine and was
driving erratically. Moreover, the issue of whether defendant had a residence, when, despite
saying he was staying in the home of his father who recently died or his cousin, he rented a hotel
room at Par-A-Dice, further undermines a conclusion he could be confined at home or monitored
by GPS monitoring.
¶ 23 We are not convinced the trial court needed to address the decision of the Peoria
County court. The charges for the offenses were different and were based on distinct conduct.
When the Peoria County charges were made and that petition for pretrial detention was
considered, the Tazewell County charges had not yet been filed. Each court is given broad
discretion in how to weigh the statutory factors and rule on the issues before it. The court’s
decision finding the conditions element proved is not “ ‘arbitrary, fanciful, or unreasonable.’ ”
[CITATION], ¶ 10.
¶ 24 Defendant next argues the State failed to prove by clear and convincing evidence
he posed a risk of willful flight.
¶ 25 We need not consider this argument on appeal. A defendant may be detained
based on clear and convincing proof of dangerousness or willful flight. Compare 725 ILCS
5/110-6.1(a)(1)-(7) (West 2022) with id. § 110-6.1(a)(8). Given we have found no abuse of
discretion in the trial court’s decision detaining defendant on dangerousness grounds, we need
not determine whether there was error on the willful-flight ground.
¶ 26 Last, defendant contends, under the doctrine of collateral estoppel, the State was
barred from seeking detention in Tazewell County after the Peoria County court released him
under the same circumstances. The State counters this court lacks jurisdiction to consider the
error. The State maintains Illinois Supreme Court Rule 604(h)(1) (eff. Dec. 7, 2023) only allows
interlocutory appeals of orders entered under section 110-5, 110-6, and 110-6.1 of the Code and
the order denying defendant’s motion to dismiss does not fall within that rule’s provisions.
¶ 27 Rule 604(h)(1) grants appellate courts jurisdiction over “an interlocutory order of
court entered under sections 110-5, 110-6, and 110-6.1 of the Code.” Id. The rule authorizes an
appeal “by the defendant from an order denying pretrial release.” Ill. S. Ct. R. 604(h)(1)(iii) (eff.
Dec. 7, 2023).
¶ 28 Here, on his notice of appeal, defendant checked the box indicating he appeals the
order denying his pretrial release. While defendant seeks a reversal of the trial court’s order
denying his motion to dismiss, defendant also seeks a reversal of the detention order—the latter
of which falls within the plain language of Rule 604(h)(1)(iii) (id.). We have jurisdiction over the
question of whether that detention order was properly granted. The propriety of that order turns,
in part, on the applicability of the doctrine of collateral estoppel. Defendant’s notice of appeal is
timely and contains some argument the State is estopped from making a second attempt at
denying him pretrial release. We find, therefore, we have jurisdiction under Rule 604(h)(1)(iii) to
consider defendant’s collateral-estoppel argument.
¶ 29 As to whether collateral estoppel bars the State from seeking defendant’s
detention in Tazewell County after the State’s first attempt failed in Peoria County, our review is
de novo. See [CITATION]. We find persuasive our decision in [CITATION]. In
[CITATION], the defendant argued “collateral estoppel barred the State from taking the
- 10 - position, in the Boone County circuit court, that the Winnebago County DUI was detainable,” as
“ ‘the identical issue had been fully litigated by the State and a final judgment on the merits had
been rendered’ in Winnebago County.” Id. ¶ 39. This court emphasized the well-established
principle a judgment is not final for collateral-estoppel purposes until the possibility of appellate
review is exhausted. Id. ¶ 40 (quoting [CITATION]). Because, in that case, the potential for appellate review had not been
exhausted on the Winnebago County matter, that decision was not a final judgment and,
therefore, not a bar to the Boone County decision. Id.
¶ 30 Like in [CITATION], the issue of defendant’s pretrial detention was not a final
judgment in Peoria County when the Tazewell County court ordered defendant detained. The
State had 14 days to appeal the Peoria County decision denying its March 19, 2024, verified
petition. See Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023)). Fourteen days had not passed when the
Tazewell County court, nine days after the Peoria County court denied the State’s petition to
deny defendant pretrial release, granted the State’s petition. There was no final judgment for
collateral-estoppel purposes. Collateral estoppel does not apply.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the trial court’s judgment.
¶ 33 Affirmed.
- 11 -
```plaintext
2024 IL App (1st) 240837-U
No. 1-24-0837B
Order filed July 18, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 24110195701
)
SAMMIE M. DANIELS ) The Honorable
) Maryam Ahmad,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Presiding Justice Oden Johnson and Justice Tailor concurred in the judgment.
ORDER
¶1 Held: Affirmed. The record supports the trial court’s denial of pretrial release.
¶2 Context shapes how we see and understand facts. That Sammie Daniels had felony
convictions while armed did not, alone, prove him a “real and present threat” to others under article
110 of the Code of Criminal Procedure of 1963 (Code) ([CITATION]), as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act.
What did, however, were his early-morning choices to load the gun and drink liquor while blaring
``` No. 1-24-0837B
music from the driver’s seat of a car. We affirm because the facts alleged in this context support
the denial of pretrial release.
¶3 Background
¶4 The State petitioned to detain Sammie Daniels before trial ([CITATION]), having charged him with several offenses, including aggravated unlawful use of a weapon ([CITATION]).
¶5 At a hearing, the State proffered how officers investigating a “noise disturbance” around
4:00 a.m. saw a black car playing “loud music” in front of a home. Sammie Daniels was in the
driver’s seat, holding a cup of liquor. At their command, he got out, reached for an ID, and exposed
an apparent gun at his waist. The officers patted him down and found a semiautomatic firearm
[SEGMENT 7]
with live rounds in the magazine and chamber.
¶6 Daniels proffered that he is 39 years old, a lifelong Cook County resident, and the father
of four children, one of whom he primarily raises. He works full-time as a dispatcher for a trucking
company and has lived with a sibling at his current address for six years.
¶7 Pretrial Services calculated Daniels’ “new criminal activity” and “failure to appear” scores
as threes (out of sixes) and recommended pretrial supervision, not detention. Daniels’ criminal
history included convictions for conspiracy to commit murder (around age 18) and obstruction of
justice (around age 30). He last completed mandatory supervised release five years ago.
¶8 The trial court found the State carried its burden to prove Daniels should be detained as a
real and present threat to the community. First, the proof was evident or presumption great that
Daniels committed the detainable offense of aggravated unlawful use of a weapon. The proffer
showed Daniels had felony convictions yet possessed a loaded firearm at his waist while drinking
No. 1-24-0837B
in the driver’s seat of a car reported for noise. Second, Daniels was a real and present threat, given
the way he carried the gun that morning—“un-cased, loaded, and immediately accessible.” Finally,
no condition short of pretrial detention would suffice, given Daniels’ proven access to firearms
and his knowing possession despite laws barring him from doing so.
¶9 Daniels raises two challenges to the trial court’s finding that he presented a real and present
threat to the community.
¶ 10 Analysis
¶ 11 Daniels seeks pretrial release with conditions, raising related claims: (i) the State failed to
proffer specific and articulable facts showing that he is a real and present threat to the safety of the
community, and (ii) the trial court “failed to make an individual assessment” of the alleged threat
that he poses. We disagree.
¶ 12 Generally, the State may seek to detain someone by charging an offense eligible for
detention and then proving three elements. First, the proof is evident or the presumption great that
the defendant committed the detention-eligible offense. Second, the defendant poses a real and
present threat to the safety of the community based on the specific articulable facts. Third, no
condition or combination of conditions can mitigate that real and present threat. 725 ILCS 5/110-
6.1(e) (West 2022).
¶ 13 Of these elements, Daniels contends the State and trial court conflated the first (proof of
his nonviolent offense) with the second (proof of his real and present threat). In his view, the State
proffered that he only “was in possession of a weapon while * * * previously *** convicted of a
felony.” Likewise, the trial court found he “was both a convicted felon[] and in possession of a
```plaintext
No. 1-24-0837B
weapon.” He contends “this matter is more akin to simple gun possession,” and thus, this court
should order his release with conditions.
¶ 14 Several standards guide our analysis. To begin, the State must present clear and convincing
evidence: a “quantum of proof that leaves no reasonable doubt in the mind of the fact finder about
the truth of the proposition in question.” (Internal quotation marks omitted.) [CITATION], ¶ 12. Aside from the State’s burden, we review the trial court’s order under
a bifurcated standard of review. [CITATION], ¶ 13. But see [CITATION], (canvassing appellate court split on standard of
review), appeal allowed, No. 130626, 2024 WL 2978293 (Ill. Jun. 11, 2024). We reverse findings
against the manifest weight of the evidence and review the trial court’s ultimate decision for an
abuse of discretion. [CITATION], ¶ 13.
¶ 15 We reject Daniels’ contentions as ignoring pertinent parts of the record—the context
shaping the facts of his gun possession. Daniels’ analysis fails to acknowledge the proffered facts
describing (i) the manner of his firearm possession and (ii) the lead-up to the officers’ search and
seizure.
¶ 16 The State carried its burden of proof. [CITATION], ¶ 12. Liquor,
a loaded gun, and a steering wheel are a menacing mix—a real and present threat—even before
one adds in the law’s prohibition on Daniels possessing a firearm. See, e.g., [CITATION] (describing purpose of drunk-driving statutes as “keeping intoxicated
drivers out of their vehicles”); [CITATION], ¶ 16 (observing,
AUUW and UUW statutes were enacted for same purpose of protecting police and public from
dangerous weapons).
``` No. 1-24-0837B
¶ 17 For similar reasons, we reject Daniels’ contention that the trial court’s “logic” was
somehow flawed. Of course, bare allegations about the crime are relevant but insufficient to satisfy
proof that Daniels presented a real and present threat. [CITATION]
¶¶ 17-18. The trial court properly focused on the way Daniels carried the firearm—“un-cased,
loaded, and immediately accessible”—and noted how the gun was at his waist. Doing so cohered
with the manifest of the evidence, and ordering Daniels detained was no abuse of discretion.
[CITATION], ¶ 13.
¶ 18 Conclusion
¶ 19 The context of Daniels’ alleged offense proved him to be a real and present threat to the
community.
¶ 20 Affirmed.
2024 IL App (4th) 220692-U
NOTICE FILED
This Order was filed under July 9, 2024
Supreme Court Rule 23 and is NOS. 4-22-0692, 4-23-0194 cons.
Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
DONTEL DEON CROWDER, ) Nos. 18CF1258
Defendant-Appellant. )
CF46
)
) Honorable
) William A. Yoder,
) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court.
Presiding Justice Cavanagh and Justice Harris concurred in the judgment.
ORDER
¶1 Held: (1) The circuit court did not err in granting the State’s motion to dismiss
defendant’s petition for relief from judgment due to untimeliness.
(2) The circuit court did not err in summarily dismissing defendant’s
postconviction petition as frivolous or patently without merit because defendant
failed to set forth the gist of a constitutional claim that was not completely
contradicted by the record.
¶2 Defendant, Dontel Deon Crowder, appeals the circuit court’s dismissal of his
(1) section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2022)) in McLean
County case No. 18-CF-1258 and (2) postconviction petition pursuant to the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2022)) in McLean County case No. 19-CF-46. This
court granted defendant’s motion to consolidate the two cases on appeal. In case No. 18-CF-1258, the circuit court granted the State’s motion to dismiss defendant’s section 2-1401 petition, finding
the petition was untimely and failed to provide any legal basis for relief. The court summarily
dismissed defendant’s postconviction petition in case No. 19-CF-46, finding it “frivolous and
patently without merit and fail[ed] to present the gist of a constitutional claim.” On appeal,
defendant argues the court erred in dismissing his petitions. We affirm.
¶3 I. BACKGROUND
¶4 In December 2018, defendant was charged in case No. 18-CF-1258 with aggravated
domestic battery (720 ILCS 5/12-3.3(a-5) (West 2018)) (count I) and domestic battery (id.
§ 5/12-3.2(a)(1)) (count II). Following defendant’s arrest, the victim, J.S., obtained an order of
protection against defendant. One month later, defendant was charged in case No. 19-CF-46 with
violating said order of protection. (id. § 5/12-3.4(a)(1)).
¶5 Pursuant to a partially negotiated plea agreement, defendant pled guilty to count II
in case No. 18-CF-1258 and violation of an order of protection in case No. 19-CF-46. In exchange
for defendant’s plea, the State dismissed count I in case No. 18-CF-1258, along with a petition to
revoke probation in an unrelated case. On October 11, 2019, the circuit court sentenced defendant
[SEGMENT 8]
to 30 months of drug court probation. Defendant did not file any posttrial motions after his
sentencing.
¶6 The State filed a petition to revoke defendant’s probation in January 2022. While
the petition was pending, defendant filed a “1401 Petition to Withdraw Guilty Plea and Vacate
Sentence” in case No. 18-CF-1258 and a “Petition to Withdraw Guilty Plea Pursuant to 725 ILCS
5/122-1 A/K/A the Post-Conviction Hearing Act” in case No. 19-CF-46.
¶7 A. Section 2-1401 Petition for Relief From Judgment
¶8 Defendant filed his section 2-1401 petition for relief from judgment in May 2022.
His petition alleged: (1) he received ineffective assistance of counsel because his trial counsel
failed to properly investigate the charges against him and (2) the State failed to turn over all the
evidence against him. In support of his arguments, defendant described an incident from December
8, 2018, the day before he was arrested for aggravated domestic battery against J.S. On December
8, officers responded to defendant’s residence to investigate a possible domestic battery in which
defendant was the aggressor and J.S. was the victim. The officers made no arrests and one officer’s
report expressed doubt as to whether a domestic battery occurred. Defendant alleged the State
failed to turn over a copy of this report as part of discovery and his trial counsel failed to investigate
the December 8 incident. Defendant claimed this report demonstrated J.S. had “substantial
credibility issues.” The petition also described the events leading to his arrest in case No.
18-CF-1258. On December 9, 2018, officers responded to defendant’s residence after receiving a
911 call about a female screaming. When officers entered the residence, J.S. reported defendant
bit and choked her, causing her to have a seizure. Defendant’s brother, Laron Crowder, told police
he was present during the incident and corroborated J.S.’s version of events. The December 9
police report included photographs of J.S.’s injuries. Defendant alleged these photographs
demonstrated J.S. had no injuries and no domestic battery occurred.
¶9 The section 2-1401 petition conceded defendant failed to file his petition within the
two-year statute of limitations. See 735 ILCS 5/2-1401(c) (West 2022). However, defendant
asserted his petition was not untimely due to fraudulent concealment by his trial counsel.
Specifically, defendant stated, “had his previous counsel not fraudulent [sic] represented that he
had reviewed all the evidence for and against [defendant]; or had not fraudulently withheld
favorable evidence in favor of [defendant]; [defendant], or his counsel would have been alerted to
the mistakes before the guilty plea was entered.”
¶ 10 Attached to defendant’s petition were: a McLean County incident report from
December 9 (exhibit A); photographs of J.S. from December 9 (exhibits B-E); a copy of detective
Jesse Lanphear’s deposition in McLean County case No. 20-L-173 (exhibit F); and a McLean
County incident report from December 8 (exhibit G).
¶ 11 After being properly served with defendant’s section 2-1401 petition, the State filed
a motion to dismiss, asserting: (1) defendant’s petition was untimely and (2) even if the circuit
court excused the untimeliness, a section 2-1401 petition was not the proper avenue for ineffective
assistance of counsel claims. In support of its untimeliness argument, the State asserted defendant
failed to prove “any information was ‘fraudulently concealed,’ ” which is necessary to toll the two-
year statute of limitations. According to the State, defendant’s petition failed to (1) demonstrate
the State attempted to prevent him from discovering the materials, (2) offer any facts showing
defendant acted in good faith and with reasonable diligence to discover the materials and bring his
claim within the statute of limitations, and (3) present any evidence demonstrating the materials
would have affected the outcome of defendant’s case. Moreover, the State contended defendant
had the materials in his possession in April 2021, which was within the statute of limitations;
however, defendant failed to file his petition until May 2022.
¶ 12 One month after the State filed its motion to dismiss, defendant filed a response. In
his response, defendant argued the State failed to turn over the December 8 report and December
9 photographs as part of discovery in case No. 18-CF-1258. According to defendant, this failure
constituted a Brady violation ([CITATION]) and thus qualified as
fraudulent concealment. Therefore, the two-year statute of limitations was tolled and defendant’s
petition was timely filed. Defendant then conceded his ineffective assistance claim could be
stricken but requested the circuit court “not prevent [him] from discussing the actions or inactions
of his trial counsel.” In support of this request, defendant argued the actions of his trial counsel
were directly related to “the fraudulent concealment; possible Brady violations; trial strategy; and
plea negotiations.”
¶ 13 In October 2022, the State filed a reply to defendant’s response. In its reply, the
State asserted defendant received a copy of the December 9 photographs as part of discovery in
case No. 18-CF-1258. Attached to the reply were documents confirming the December 9
photographs were provided to trial counsel as part of discovery. Additionally, the State argued the
December 8 report was not Brady material because the result of the proceedings would not have
changed if defendant received a copy of it. Unlike the events on December 8, there was an
independent eyewitness present on December 9 who corroborated J.S.’s version of events.
Therefore, the December 8 report in which the officer doubted J.S.’s credibility would have little
weight as to defendant’s charges from December 9.
¶ 14 Defendant then filed a motion requesting leave to file a supplemental response to
the State’s reply. A copy of defendant’s supplemental response was attached to the motion as
exhibit A. However, the record is devoid of any order granting defendant’s motion for leave to file.
¶ 15 In January 2023, the circuit court granted the State’s motion to dismiss defendant’s
section 2-1401 petition. In its written order, the court differentiated between the well-pleaded facts
and arguments/opinions in defendant’s petition. The court listed the following as
arguments/opinions:
“a. [Defendant] received ineffective assistance of counsel in this case and
thus his rights under both the United States and the State of Illinois were violated.
b. Had [defendant’s] previous attorney properly investigated this matter,
they would have noticed there was no physical evidence and that [J.S.] had
substantial credibility issues;
c. ‘[Defendant] avers had his previous counsel not fraudulent [sic]
represented that he had reviewed all the evidence for and against [defendant]; or
had not fraudulently withheld favorable evidence in favor of [defendant];
[defendant], or his counsel would have been alerted to the mistakes before the guilty
plea was entered.’ ”
The order then addressed the timeliness of defendant’s petition, finding it was undisputed
defendant failed to file the petition within the two-year statute of limitations and defendant’s
counsel obtained the “relevant materials” within the statute of limitations. It then determined
defendant failed to meet his burden in proving “fraudulent concealment of discoverable materials
by the State which would have prevented [defendant] from bringing this action in a timely
fashion.” The court also found defendant’s ineffective assistance of counsel claim was not an
applicable basis for relief in a section 2-1401 petition.
¶ 16 B. Postconviction Petition
¶ 17 Defendant also filed a postconviction petition in case No. 19-CF-46 in May 2022.
The postconviction petition alleged defendant’s constitutional rights were violated when (1) the
State utilized the more serious felonies in case No. 18-CF-1258 to convince defendant to plead
guilty to lesser charges, (2) his trial counsel provided ineffective assistance by failing to properly
investigate the charges against him, and (3) the State failed to turn over all the evidence against
him. In support of his allegations, defendant provided a factual summary of his arrest in case No.
18-CF-1258, which appears to be verbatim from his section 2-1401 petition. Defendant then stated
he was arrested for the violation of an order of protection charge in case No. 19-CF-46 while
awaiting trial on the charges in case No. 18-CF-1258. Although defendant was charged with
violation of an order of protection, defendant asserted the evidence demonstrated “[t]he
investigating officer *** was never able to establish [defendant] was the person actually making
the calls; and it does not appear the alleged victim wanted to pursue charges.”
¶ 18 Attached to defendant’s postconviction petition were the same exhibits attached to
his section 2-1401 petition, with the addition of a McLean County incident report from January
11, 2019 (exhibit H).
¶ 19 On August 5, 2022, the circuit court summarily dismissed defendant’s petition as
frivolous and patently without merit. In its written order, the court outlined the grounds for relief
[SEGMENT 9]
raised in defendant’s petition:
“A. That there was insufficient evidence to convict.
B. That the State used more serious felonies it charged against [defendant],
to obtain guilty pleas for lesser charges.
C. That [defendant] received ineffective assistance of counsel in that if [his]
previous attorney properly investigated this matter, they would have noticed there
was no physical evidence; that [J.S.] had substantial credibility issues; that the
Order of Protection was wholly without merit; and that the Bloomington Police
Department closed the file without making a positive identification of [him].
D. In the alternative, had the State turned over all the evidence against and
for [defendant], [he] would have noticed there was no physical evidence; that [J.S.]
had substantial credibility issues; that the Order of Protection was wholly without
merit; and that the Bloomington Police Department closed the file without making
a positive identification of [him].”
After noting the alleged grounds for relief, the court found issues A and B failed to set forth the
gist of a constitutional claim. With respect to claims C and D, the court stated, “Issues C and D in
[defendant’s] Post Conviction Petition allege in one way or another, ineffective assistance of
counsel.” It then analyzed those claims under the standard set forth in [CITATION],
and found defendant’s claims either waived by his guilty plea or insufficient
to establish ineffective assistance of counsel. The court’s written order did not address defendant’s
claim that the State failed to turn over all the evidence against him.
¶ 20 Defendant timely appealed the dismissal of both his petitions.
¶ 21 This appeal follows.
¶ 22 II. ANALYSIS
¶ 23 Defendant appeals the circuit court’s dismissal of both his petitions. In case No.
18-CF-1258, defendant asserted the court erred in granting the State’s motion to dismiss his section
2-1401 petition because his petition was timely filed due to the tolling of the statute of limitations
based on the acts of fraudulent concealment by the State and his trial counsel. In case No. 19-CF-
46, defendant contends the court erred in summarily dismissing his postconviction petition because
his petition set forth the gist of a constitutional claim. We address each argument in turn.
¶ 24 A. Section 2-1401 Petition in Case No. 18-CF-1258
¶ 25
. Section 2-1401 Petitions, Generally
¶ 26 The purpose of a section 2-1401 petition for relief from judgment is “to bring before
the trial court facts not appearing in the record that, if known at the time the court entered judgment,
would have prevented the judgment’s entry.” [CITATION].
To obtain relief under section 2-1401, a defendant’s petition must include
“ ‘specific factual allegations showing (1) the existence of a meritorious claim or
defense in the original action; (2) due diligence in presenting the claim or defense
to the court in the original action; and (3) due diligence in filing the section 2-1401
petition.’ ” [CITATION] (quoting [CITATION]).
A section 2-1401 petition “must be filed not later than 2 years after the entry of the order or
judgment.” 735 ILCS 5/2-1401(c) (West 2022)). However, “[t]ime during which the person
seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed
shall be excluded in computing the period of 2 years.” Id. This court reviews the circuit court’s
dismissal of a section 2-1401 petition de novo. [CITATION].
“[D]e novo review means that ‘[w]e perform the same analysis that a trial court would, and we
owe no deference to the trial court.’ ” [CITATION] (quoting [CITATION]).
¶ 27
. Defendant’s Section 2-1401 Petition
¶ 28 In this case, the circuit court granted the State’s motion to dismiss defendant’s
section 2-1401 petition based on timeliness. Defendant filed his petition in May 2022, almost three
years after judgment was entered against him in October 2019. The court determined defendant
failed to present sufficient evidence of fraudulent concealment necessary to toll the two-year
statute of limitations. On appeal, defendant challenges the court’s untimeliness finding. According
to defendant, the State and his trial counsel fraudulently concealed materials from him, which he
did not discover until “at least April 2021.” Therefore, the statute of limitations was tolled until
April 2021 and his petition was timely filed.
¶ 29 To prove fraudulent concealment, “the defendant must ‘allege facts demonstrating
that his opponent affirmatively attempted to prevent the discovery of the purported grounds for
relief and must offer factual allegations demonstrating his good faith and reasonable diligence in
trying to uncover such matters before trial or within the limitations period.’ ” (Emphasis added.)
[CITATION] (quoting [CITATION]). Furthermore, “[f]raudulent concealment under section 2-1401(c) which will toll
the two-year limitation period contemplates affirmative actions by one’s opponent or by the court,
not one’s own attorney.” (Emphasis added.) [CITATION].
¶ 30 On appeal, defendant argues the two-year statute of limitations was tolled because
the State and his trial attorney withheld the December 8 report and December 9 photographs.
However, defendant’s section 2-1401 petition, when addressing fraudulent concealment, makes
no mention of fraudulent concealment by the State. The petition only alleges his trial counsel
“fraudulently withheld favorable evidence,” and thus the two-year statute of limitations “is not
applicable.” It is well-established fraudulent concealment only applies to actions by an opponent
or the court, not a defendant’s attorney. See [CITATION], ¶ 17.
For this reason alone, defendant’s section 2-1401 petition fails to set forth an adequate basis for
fraudulent concealment. However, defendant attempts to argue on appeal there can be fraudulent
concealment by one’s own attorney. We find defendant’s argument unpersuasive.
¶ 31 Nevertheless, even if we found defendant’s argument persuasive, defendant still
failed to properly plead fraudulent concealment because he did not offer any evidence regarding
any specific affirmative acts his trial counsel took to prevent him from discovering the December
8 report and December 9 photographs. Additionally, defendant did not plead any facts
demonstrating his good faith and diligence in discovering these materials. Because defendant
failed to adequately plead fraudulent concealment, the circuit court properly dismissed his section
2-1401 petition as untimely.
- 10 - ¶ 32 B. Postconviction Petition in Case No. 19-CF-46
¶ 33
. First-Stage Postconviction Proceedings
¶ 34 Proceedings under the Post-Conviction Hearing Act have three stages. [CITATION], ¶ 21. “At the first stage, the circuit court must review the petition within
90 days of its filing and determine whether the petition states the gist of a constitutional violation.”
[CITATION], ¶ 18. If the court determines the petition does not present the
gist of constitutional claim, it must summarily dismiss the petition as frivolous or patently without
merit. [CITATION], ¶ 9. A petition is considered frivolous or patently
without merit when
“the petition has no arguable basis either in law or in fact. A petition which lacks
an arguable basis either in law or in fact is one which is based on an indisputably
meritless legal theory or a fanciful factual allegation. An example of an indisputably
meritless legal theory is one which is completely contradicted by the record.”
[CITATION].
We review the circuit court’s summary dismissal of a postconviction petition de novo. [CITATION], ¶ 61.
¶ 35
. Defendant’s Postconviction Petition
¶ 36 Defendant argues the circuit court erred in summarily dismissing his postconviction
petition because he set forth the gist of a constitutional claim on the grounds of ineffective
assistance of counsel and the State’s violation of Brady. Additionally, defendant contends his
petition set forth a colorable claim of actual innocence. We address each of defendant’s arguments
in turn.
¶ 37 a. Ineffective Assistance of Counsel
- 11 - ¶ 38 Defendant alleges his postconviction petition properly set forth a claim of
ineffective assistance of counsel. In his petition, defendant alleged his trial counsel failed to
properly investigate the charges against him before he pleaded guilty. Because of his trial counsel’s
failure to investigate, his counsel failed to discover the January 2019 police report, which indicated
the officer was unable to get in contact with J.S. to have her identify defendant’s voice on the
recorded phone calls. According to defendant, this failure arguably constituted ineffective
assistance of counsel.
¶ 39 Even assuming, arguendo, defendant’s petition established his trial counsel’s
failure to discover the January 2019 report, the record completely contradicts defendant’s claim
he was prejudiced by this failure. At the hearing where the circuit court accepted defendant’s guilty
plea, the State proffered the investigating officer heard defendant’s and J.S.’s voices on 12
recorded phone calls. Moreover, the officer would testify to his familiarity with their voices.
Defendant acknowledged this factual basis before entering his guilty plea. The State had sufficient
[SEGMENT 10]
evidence to convict defendant of violation of an order of protection without testimony from J.S.
The factual basis established there was a valid order of protection in place and defendant placed
12 recorded calls to J.S., a protected party under the order of protection. The investigating officer
would identify the voices of defendant and J.S. on the recorded phone calls, based on his familiarity
with them. Therefore, even if J.S. did not identify defendant’s voice on the recorded phone calls,
defendant was not prejudiced by the lack of J.S.’s testimony, because the officer could identify the
voices. Because the record contradicts defendant’s claim of prejudice, the court properly dismissed
defendant’s ineffective assistance of counsel claim as frivolous and patently without merit.
¶ 40 b. Brady Claim
- 12 - ¶ 41 Defendant next argues his postconviction petition properly set forth a claim the
State violated Brady by failing to turn over the January 2019 police report.
¶ 42 “In Brady, the Supreme Court held that the prosecution violates an accused’s
constitutional right to due process of law by failing to disclose evidence favorable to the accused
and material to guilt or punishment.” [CITATION].
“A Brady claim requires a showing that: (1) the undisclosed evidence is favorable
to the accused because it is either exculpatory or impeaching; (2) the evidence was
suppressed by the State either wilfully or inadvertently; and (3) the accused was
prejudiced because the evidence is material to guilt or punishment.” Id. at 73-74.
¶ 43 Defendant’s Brady claim fails for the same reason as his ineffective assistance of
counsel claim. Namely, the record rebuts defendant’s claim of prejudice. Even taking defendant’s
allegation that the State withheld the January 2019 police report as true, the record demonstrates
he was not prejudiced. See [CITATION], ¶ 45 (“At the pleading stage of
postconviction proceedings, all well-pleaded allegations in the petition and supporting affidavits
that are not positively rebutted by the trial record are to be taken as true.”). As discussed above,
the January 2019 police report simply established J.S. had not identified defendant’s voice on the
recorded phone calls. Defendant was not prejudiced by the State failing to turn over the report
because this lack of identification by J.S. was not an impediment to the charges against him. The
State had sufficient evidence to convict him without it. Because the record completely rebuts
defendant’s claim of prejudice, the circuit court properly dismissed defendant’s Brady claim as
frivolous and patently without merit.
¶ 44 c. Actual Innocence Claim
- 13 - ¶ 45 Lastly, defendant argues his postconviction petition set forth a colorable claim of
actual innocence. Defendant asserts the January 2019 police report was new evidence “not
available before Defendant entered his guilty plea and it directly negates the State’s claim that it
had confirmed Defendant made the calls.”
¶ 46 An actual innocence claim requires a defendant provide “new, material,
noncumulative evidence that clearly and convincingly demonstrates that a trial would probably
result in acquittal” [CITATION]. In [CITATION], our
supreme court, in determining whether a defendant set forth a colorable claim of actual innocence
in his postconviction petition, considered whether defendant had “raised the probability that it is
more likely than not that no reasonable juror would have convicted him in light of the new
evidence.”
¶ 47 In this case, defendant’s postconviction petition failed to set forth a colorable claim
of actual innocence. The January 2019 police report does not make it more likely than not
defendant would have been acquitted at trial. Even if J.S. refused to cooperate and did not testify
at defendant’s trial, the State had another independent witness who was able to identify the voices
of defendant and J.S. on the 12 recorded phone calls. The testimony of this witness, coupled with
proof of the valid order of protection, was sufficient to convict defendant of violation of an order
of protection. For this reason, the circuit court properly dismissed defendant’s actual innocence
claim as frivolous and patently without merit.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, the McLean County circuit court’s judgments in case No.
18-CF-1258 and case No. 19-CF-46 are affirmed.
¶ 50 Affirmed.
- 14 -
NOTICE
IL App (5th) 240520-U
NOTICE
Decision filed 07/03/24. The
This order was filed under
text of this decision may be NO. 5-24-0520 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Vermilion County.
)
v. ) No. 24-CM-167
)
JACOLBY BATES, ) Honorable
) Robert E. McIntire,
Defendant-Appellee. ) Judge, presiding.
______________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court.
Presiding Justice Vaughan and Justice McHaney concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s order imposing conditions of release where the overall
determination regarding conditions of pretrial release was not an abuse of
discretion, but remand with directions for the circuit court to enter written findings
regarding the imposition of electronic monitoring.
¶2 The State appeals the March 26, 2024, order of the circuit court of Vermilion County 1 that
set conditions for the defendant’s pretrial release pursuant to the Safety, Accountability, Fairness,
and Equity-Today (SAFE-T) Act (Act), 2 as codified in article 110 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)). See Pub. Acts 101-652, § 10-255,
The common law record and the appellant’s brief indicate that the trial judge/hearing officer was
the Honorable Derek Girton; however, the record of proceedings, the notice of appeal, and the appellee’s
brief state that the detention hearing was conducted by the Honorable Robert E. McIntire.
“The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither
name is official, as neither appears in the Illinois Compiled Statutes or public act.” [CITATION].
102-1104, § 70 (eff. Jan. 1, 2023); [CITATION] ¶ 52 (lifting stay and setting
effective date of Act as September 18, 2023). On appeal, the State argues that the circuit court
abused its discretion in granting the defendant pretrial release since the State had met its burden,
by clear and convincing evidence, that the defendant should be detained. For the following reasons,
we affirm the order of the circuit court of Vermilion County, but remand with directions for the
circuit court to enter written findings regarding the imposition of electronic monitoring.
¶3 I. BACKGROUND
¶4 On March 15, 2024, the defendant was charged by information with one count of domestic
battery/bodily harm in violation of section 12-3.2(a)(1) of the Criminal Code of 2012 (Code) (720
ILCS 5/12-3.2(a)(1) (West 2022)) and one count of domestic battery/physical contact in violation
of section 12-3.2(a)(2) of the Code (id. § 12-3.2(a)(2)). The charges alleged that on March 5, 2024,
the defendant caused bodily harm to K.W., a nine-year-old minor who was a household member,
in that the defendant struck the minor about the body with a belt causing visible injury. The
information also stated that the defendant had been previously convicted of domestic battery in
Vermilion County case No. 20-CM-135.
¶5 On March 18, 2024, the State filed a verified petition to deny the defendant pretrial release.
The circuit court conducted a hearing on March 25, 2024, which was continued at the request of
the defendant, until March 26, 2024. At the hearing on March 26, 2024, the State proffered that on
March 5, 2024, law enforcement officials became aware of a situation involving K.W., a minor.
K.W. had been disciplined at school for some behavior, and the next day, he returned to school
with visible injuries. The injuries included a swelling of his left eye, a cut on his face, scratches to
his left arm, and scratches and marks on his back and legs. The minor disclosed that he had been
“whipped by a belt” by his mother and the defendant, who is the minor’s stepfather. The minor
[SEGMENT 11]
stated that they had taken turns holding him down while the other one wielded the belt, and that
he was wearing only his underwear at the time. The State’s proffer further stated that when the
school counselor spoke with the defendant, he stated that he disciplines the kids how he wants to,
and that he would continue to discipline them the way that he wants.
¶6 The State also proffered the defendant’s prior convictions which included battery of a
family or household member, reckless discharge of a firearm, resisting arrest, criminal trespass to
land, criminal damage to property, and burglary. As such, the State requested that the defendant
be detained, or if released, that electric monitoring along with no entry orders be required.
¶7 The defendant stated at the hearing that he and the minor’s mother were not married at the
time of the incident but were married on March 8, 2024. The defendant argued that the minor had
stated that it had happened on only one occasion and that detention would be “going way
overboard.” The defendant also stated that a blind had hit the minor in the face when he was
struggling causing the injury to the minor’s face, and as such, the injury was not from being struck
with a strap. The defendant also argued that the minor’s mother had not been detained, and
therefore, the defendant should not be detained for the exact same incident.
¶8 The circuit court inquired as to any involvement by the Illinois Department of Children
and Family Services (DCFS). The State indicated that it believed that the minor was currently
living between the two homes of his grandparents, and then the circuit court stated as follows:
“Well I’m not sure I’m going to give a lot of credit for [the defendant’s] version of the
situation. I’ll say this. It has occurred to me that I might be able to release [the defendant]
since it also occurred to me that perhaps DCFS had—or law enforcement had taken shelter
care and had made some sort of placement arrangements for this [minor]. Apparently, that’s
not the situation, and I’m concerned about the safety of this young man, now that he has
reported this incident to his school counselors and to law enforcement.”
¶9 The defendant’s counsel stated that it was his belief that the minor was in foster care and
indicated that the minor’s mother was present at the hearing. The following dialog then occurred:
“MOTHER: They are with my mother right now, as we speak.
THE COURT: Okay. And that’s where he’s living?
MOTHER: That’s where he’s at.
THE COURT: Living 24/7.
SPECTATOR: He [is] not at my house like he supposed to be. We’re not sharing
custody. The thing was I did have him, but I work Friday through Monday. So by me
working Friday through Monday, I drop the kids off to her.
THE COURT: And when we’re saying shelter care, is there some sort of court order
there, or is this DCFS?
MOTHER: This is with DCFS.
SPECTATOR: This is with DCFS.
THE COURT: Safety plan or what?
DEFENSE COUNSEL: They are saying with DCFS.”
¶ 10 The State then made an objection, stating that there were a lot of people talking, that the
State was not aware of who the individuals were or what their names were, and that the individuals
were not under oath. The State informed the circuit court that it could not indicate one way or the
other whether there was a DCFS case or any type of case. The circuit court then stated as follows:
“Okay. All right. Well and there’s not always a case. Sometimes it’s, you know, a DCFS
safety plan, which is negotiated within the parties. So here’s what I’m going to do. I’m
going to release [the defendant], but the condition of release is going to be that he has no
contact with this minor, and what that means is that if [the defendant] is going to continue
to live where he’s living, the minor can’t be there. Like I said, I don’t know whether there
is a court order, DCFS safety plan or what, but [the defendant] cannot have any contact
with the minor.”
¶ 11 The State then requested that the circuit court make electric monitoring a condition of the
defendant’s release along with a no entry to the primary residence of minor. The circuit court
declined to enter a no entry order to the primary residence since the circuit court indicated that it
wanted the minor residing elsewhere “24/7.” Regarding electronic monitoring, the circuit court
stated as follows:
“I think I will—I think I will order that. Is there—now apparently, he would know the
address of the other place where the child stays. Basically, I’m going to—I’m going to
order that he not be within 500 feet of the named victim.”
The circuit court then advised the defendant of his appeal rights and adjourned the hearing.
¶ 12 The circuit court entered a written order the same day stating that the defendant was
charged with a detention-eligible offense, but that the circuit court had denied the State’s petition
to detain. The written order also imposed the mandatory conditions of release set forth in section
110-10(a) of the Code ([CITATION]), along with a no contact order with the minor and electronic monitoring. Pursuant to section 110-5(g) and (h) (id. § 110-5(g), (h)), the
circuit court found that no less restrictive condition of release or combination of less restrictive
conditions of release would reasonably ensure the appearance of the defendant for later hearings
or protect an identifiable person or persons from imminent threat of serious physical harm. The
circuit court’s basis for that finding, however, was left blank.
¶ 13 Later the same day, the State filed an emergency motion to modify pretrial release
conditions. The motion stated that the defendant was unable to be released with the terms and
conditions imposed by the circuit court, because an electronic monitoring device could not be
installed with the condition of no contact with the minor since electronic monitoring could track
the movements of the defendant but could not track the defendant in relationship to the minor. The
State’s motion also indicated that the State had contacted DCFS and that DCFS was investigating
the matter; determining the proper residence options for the minor; verified the minor’s school;
and verified the address at which the minor was residing with his maternal grandmother. As such,
the State requested that the circuit court modify the defendant’s pretrial release conditions to a no
contact with the minor, no entry to the minor’s school, and no entry to the residence at which the
minor was staying.
¶ 14 The circuit court granted the State’s emergency motion 3 the same day and entered a written
order directing that the defendant shall not have any direct or indirect contact with the minor, that
the defendant remains 500 feet away from the minor, and that the defendant have no entry to the
minor’s school or current residence. The circuit court’s order also allowed future modification if
DCFS or pretrial services verified a change in the minor’s school or residence. The circuit court’s
written order granting the State’s emergency motion did not contain any mention of electronic
monitoring. On April 9, 2024, the State filed a timely notice of appeal. 4
The record on appeal does not contain a report of proceedings regarding the State’s emergency
motion.
Pursuant to Illinois Supreme Court Rule 604(h)(5) (eff. Dec. 7, 2023), our decision in this case
was due on or before July 1, 2024, absent a finding of good cause for extending the deadline. Based on the
high volume of appeals under the Act currently under the court’s consideration, as well as the complexity
of issues and the lack of precedential authority, we find there to be good cause for extending the deadline.
¶ 15 II. ANALYSIS
¶ 16 On appeal, the only issue raised by the State is whether the circuit court abused its
discretion in releasing the defendant with conditions where the State had proven, by clear and
convincing evidence, that the defendant should be detained pending trial. The State argues that it
had met its burden under the three-pronged analytical framework required under the Code for
detention, i.e., that the defendant was charged with a qualifying offense, that the defendant posed
a real and present threat to the safety of any person or the community, and that less restrictive
conditions would not avoid a real and present threat to the safety of any person or the community.
See [CITATION]. In support of its argument, the State cites to the factors contained in sections
110-6.1 and 110-5 of the Code ([CITATION]), and reiterates the evidence presented at the
hearing as applied to those factors. The State argues that the circuit court abused its discretion in
failing to detain the defendant prior to trial, and requests that this court reverse the circuit court’s
order granting the defendant pretrial release.
¶ 17 Pretrial release, including any conditions related thereto, is governed by the Act as codified
in article 110 of the Code ([CITATION]). A defendant’s pretrial release may be denied only in certain
statutorily limited situations. [CITATION]. After filing a timely verified petition requesting denial
of pretrial release, the State has the burden to prove by clear and convincing evidence (1) that the
proof is evident or the presumption great that the defendant has committed a qualifying offense,
[SEGMENT 12]
(2) that the defendant’s pretrial release poses a real and present threat to the safety of any person
or the community or a flight risk, and (3) that less restrictive conditions would not avoid a real and
present threat to the safety of any person or the community and/or prevent the defendant’s willful
flight from prosecution. [CITATION]. The circuit court may order a defendant detained
pending trial if the defendant is charged with a qualifying offense, and the circuit court concludes
that the defendant poses a real and present threat to the safety of any person or the community ([CITATION].
§ 110-6.1(a)(1)-(7)), or there is a high likelihood of willful flight to avoid prosecution ([CITATION]. § 110-
6.1(a)(8)). If the circuit court determines that the defendant should be denied pretrial release, the
circuit court is required to make written findings summarizing the reasons for denying pretrial
release. [CITATION]. § 110-6.1(h)(1).
¶ 18 If pretrial release is granted, the Act mandates that the circuit court impose certain
conditions that are mandatory and allows other permissive conditions to be imposed. [CITATION]. §§ 110-
5(c), 110-10(a) (mandatory conditions); 110-10(b) (nonexclusive list of permissive conditions).
The conditions of release imposed, however, shall be the least restrictive conditions or combination
of conditions necessary to reasonably ensure the appearance of the defendant as required, or the
safety of any other person or persons or the community. [CITATION]. § 110-5(c).
¶ 19 To set appropriate conditions of pretrial release, the circuit court must determine, by clear
and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the
appearance of a defendant as required or the safety of any other person or the community and the
likelihood of compliance by the defendant with all the conditions of pretrial release.” [CITATION]. § 110-
5(a). In reaching its determination, the circuit court must consider (1) the nature and circumstances
of the offense charged; (2) the weight of the evidence against the person, except that the court may
consider the admissibility of any evidence sought to be excluded; (3) the history and characteristics
of the person; (4) the nature and seriousness of the specific, real, and present threat to any person
that would be posed by the person’s release; and (5) the nature and seriousness of the risk of
obstructing or attempting to obstruct the criminal justice process. [CITATION]. § 110-5(a). Section 110-5
does not require written findings by the circuit court regarding the basis for each of the permissive
conditions imposed, except for the condition of electronic monitoring, which does require the
circuit court to set forth in the record the basis for imposing electronic monitoring. Id. §§ 110-5,
110-5(h).
¶ 20 As noted previously, in this matter, that portion of the circuit court’s written release order
regarding the basis for the circuit court imposing electronic monitoring was left blank. At the
hearing, the circuit court stated:
“I think I will—I think I will order that. Is there—now apparently, he would know the
address of the other place where the child stays. Basically, I’m going to—I’m going to
order that he not be within 500 feet of the named victim.”
The circuit court ordered that the defendant remains 500 feet from the minor, and it appears from
the record that it did so based on the defendant’s knowledge “of the other place where the child
stays.” The circuit court did not state the basis for imposing electronic monitoring and this court
cannot speculate that the above was also the basis for the circuit court’s finding concerning
electronic monitoring. See generally [CITATION], ¶ 36. Therefore, we find that the circuit court erred in failing
to set forth in the record the basis for imposing electronic monitoring.
¶ 21 Our standard of review of pretrial release determinations is twofold. The circuit court’s
factual findings will be reviewed under the manifest weight of the evidence standard. [CITATION], ¶ 13. “A finding is against the manifest weight of the evidence
only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary,
or not based on the evidence presented.” [CITATION]. “Under the manifest weight standard, we give deference to the [circuit] court as the finder of fact because
it is in the best position to observe the conduct and demeanor of the parties and witnesses.” Id. The
circuit court’s ultimate determination regarding pretrial release, however, will not be reversed
absent an abuse of discretion. [CITATION], ¶ 11. An abuse of
discretion occurs when the decision of the circuit court is arbitrary, fanciful, or unreasonable, or
when no reasonable person would agree with the position adopted by the circuit court. Id.
¶ 22 Here, the State repeats the evidence and arguments that it made at the hearing and asks this
court to come to a different conclusion than the circuit court. It is an inherently difficult decision
regarding detention when the safety of a minor is at risk. It is why this court defers to the circuit
court in making such a decision because it is in the best position to observe the conduct and
demeanor of the parties and witnesses. Although this court must consider both the legal adequacy
of the manner in which the circuit court reached its result as well as whether the result is within
the bound of reason, this court will not reweigh the evidence and substitute our judgment for that
of the trier of fact. See [CITATION], ¶ 64. This court has found that the conditions imposed by the circuit court could
not reasonably ensure the safety of any other person or persons or the community; however, we
did so only upon a finding that the conditions imposed were decidedly insufficient to prevent the
defendant from committing further harm based on the specific articulable facts of each case. See
[CITATION], ¶ 21.
¶ 23 In this matter, the circuit court found that the defendant was charged with a detention-
eligible offense and further stated that it was “concerned about the safety of this young man, now
that he has reported this incident to his school counselors and to law enforcement.” The record
demonstrates that the circuit court was aware of the potential harm to the minor if the defendant
was released but determined that the defendant could be released under the conditions set by the
circuit court. The record also reflects that the circuit court was aware of DCFS’s involvement with
the minor.
¶ 24 We have thoroughly reviewed the record on appeal in this matter and, based on our review
of the record, we find that the circuit court’s factual findings regarding the conditions of release
were not against the manifest weight of the evidence. We further find that the circuit court’s
ultimate determination to grant the defendant pretrial release was not arbitrary, fanciful, or
unreasonable, or when no reasonable person would agree with the position adopted by the circuit
court. As such, the circuit court’s release order was not an abuse of discretion. We do, however,
find that the circuit court erred in failing to provide its findings in the record regarding the basis
for imposing electronic monitoring. Therefore, we remand this matter with directions for the circuit
court to modify its release order of March 26, 2024, to include its findings regarding electronic
monitoring as required by section 110-5(h) of the Code (725 ILCS 5/110-5(h) (West 2022)).
¶ 25 III. CONCLUSION
¶ 26 For the foregoing reasons, we affirm the March 26, 2024, order of the circuit court of
Vermilion County, setting conditions for the defendant’s pretrial release, but remand the matter
with directions that the circuit court set forth in the record the basis for imposing electronic
monitoring.
¶ 27 Affirmed and remanded with directions.
NOTICE
IL App (4th) 240599-U
This Order was filed under
FILED
Supreme Court Rule 23 and is July 3, 2024
NO. 4-24-0599
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Winnebago County
FRANK W. WENGER II, ) No. 23CF1421
Defendant-Appellant. )
) Honorable
) Philip J. Nicolosi,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Justice DeArmond and Justice Vancil concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in denying defendant pretrial release.
¶2 Defendant, Frank W. Wenger II, appeals the trial court’s order denying him
pretrial release under section 110-6.1(a) of the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/110-6.1(a) (West 2024)), hereinafter as amended by Public Acts 101-652, § 10-255 and
[SEGMENT 13]
102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act. We affirm.
¶3 I. BACKGROUND
¶4 On June 15, 2023, the State charged defendant with aggravated driving under the
influence of alcohol resulting in death (625 ILCS 5/11-501(a)(2), (d)(1)(F) (West 2022)) and
reckless homicide (720 ILCS 5/9-3(a) (West 2022)). By superseding indictment, defendant was
charged with the original charges as well as four additional charges: aggravated driving with an
alcohol concentration of .08 or more in blood or breath resulting in death (625 ILCS 5/11-501(a)(1), (d)(1)(F) (West 2022)), aggravated driving under the influence of alcohol
resulting in great bodily harm (id. § 11-501(a)(2), (d)(1)(C)), aggravated driving with an alcohol
concentration of .08 or more in blood or breath resulting in great bodily harm (id. § 11-501(a)(1),
(d)(1)(C)), and aggravated reckless driving (id. § 11-503(a)(1), (c)). Bond was set at $200,000,
10% to apply.
¶5 On January 23, 2024, defendant filed a motion for reconsideration of pretrial
release conditions. The motion does not appear in the record. The State responded by filing, on
February 9, 2024, a verified petition to deny defendant pretrial release.
¶6 The detention hearing was held in March 2024. The record reveals the hearing
had begun the week before but was continued when there was a question regarding whether the
petition was adequately verified. The trial court held that it was, and the hearing continued. At
the hearing, the State proffered officers from the Winnebago County Sheriff’s Office were
dispatched on June 14, 2023, for a disorderly subject, defendant, at a bar in Durand, Illinois. At
that bar, defendant drank two beers that he ordered from waitstaff. He then “helped himself to
approximately three shots worth of vodka from behind the bar he himself poured into his beer
glass.” A dispute over defendant’s paying for that alcohol occurred between defendant and the
waitstaff. Defendant left the bar before the officers arrived. Approximately 1 hour and 15
minutes after officers were dispatched to the bar, the officers were dispatched to a crash. Two
individuals not involved in the collision were at the scene and spoke to the officers. One witness
cut defendant from his seatbelt. That witness informed officers he could smell alcohol coming
from defendant. The witness further reported defendant seemed calm despite the gravity of the
situation, including the fact his vehicle was flipped on its roof and was just involved in a very
serious crash. Another witness at the scene told officers Russell Moore, the driver of the second
vehicle, was “partially in the vehicle, partially out of the vehicle.” That witness helped Moore
exit his vehicle. Approximately 15 to 20 feet from the vehicle, Moore collapsed. He was later
pronounced dead. Moore’s vehicle was engulfed in flames and had to be extinguished by the fire
department. Amanda Bruce, Moore’s daughter, was also in that vehicle. She suffered significant
injuries, including extensive bruising and a laceration requiring stitches to her knee.
¶7 The State further proffered field-sobriety tests performed at the scene indicated
defendant was impaired. Defendant refused to provide a sample to be tested. Defendant was
taken to the hospital, where he required additional medical treatment. A medical draw was
completed by the hospital. Testing done pursuant to a search warrant showed “at three and a half
hours later, he was .167 with his blood alcohol level after the conversion rate from the whole
blood to a blood alcohol concentration.” The State proffered, during defendant’s interview,
defendant “indicated he had too much to drink” and responded “no” when asked if he was okay
to drive. Bruce reported to officers defendant was traveling in their lane and “driving in a
reckless manner.” Russell, her father, attempted to avoid impact, braked and tried to swerve to
the right but defendant’s vehicle still struck them head on. The impact of the collision separated
the cabin of defendant’s pickup from the bed of the truck. In 2009, defendant was charged with
aggravated discharge of a firearm but convicted for reckless discharge of a firearm, after having
fired four shots in the direction of a neighbor’s residence. He was sentenced to two years’
probation. In that case, the State suggested alcohol was a factor as the court in that case ordered
defendant to refrain from consuming alcohol as a term of probation. In that same incident,
defendant resisted arrest by pulling away from the officer. He had to be tased to be detained. In
1997, defendant was convicted in Florida for possession of drug paraphernalia.
¶8 Defense counsel argued a combination of conditions could mitigate any threat, if
the trial court found a threat sufficiently proved. According to counsel, defendant arranged to
live with a family member who agreed to have a landline for the purpose of establishing a
curfew. Counsel suggested defendant be ordered to “not possess or consume alcohol, illicit
drugs, or [tetrahydrocannabinol (THC)],” to report to pretrial services, and submit to testing to
monitor his compliance. Further suggestions included treatment for substance abuse.
¶9 Defense counsel proffered defendant’s 2009 conviction was his only criminal
history. Counsel noted the probation officer in that case stated in the status report defendant was
tested nine times for substances and had all negative drops. The officer reported defendant had
“been a pleasure to deal with.” Defendant successfully completed the sentence of probation
having been, according to another probation officer, “in complete compliance with reporting to
probation as directed and providing urine samples when required.” That officer further reported
defendant provided employment verification as required. Defense counsel highlighted defendant
complied with court orders and had been cordial and respectful during all hearings.
¶ 10 Defense counsel further countered the State’s conclusion the 2009 case involved
alcohol:
“By [stating] the 2009 CF case must have involved alcohol
because one of his bond conditions was to refrain from possession
or consumption of alcohol, as to that there’s two points. One, it
was a common, if not standard practice for certain judges, and each
judge is different, but for certain judges who appeared in bond
court to, regardless of the offense and regardless of the factual
basis noted in the probable cause statement, order an individual to
refrain from the use of substances. Sometimes that—from
previous, previous experience in bond court, that was often the
State’s position to ask for that regardless and see if the court would
grant it.”
¶ 11 The State countered the prohibition against alcohol consumption in 2009 was a
handwritten condition and not a preprinted box to check. The State further argued if alcohol was
not at issue, then “defendant was just at large shooting in his backyard at his neighbor’s house.”
The State further highlighted GPS was not available “within this county” and they had no ability
to monitor if defendant was going to a bar or to a liquor store. The State further noted a landline
can be forwarded to a cell phone.
¶ 12 According to the pretrial services report, defendant worked for one and a half
years for “Stateline Disposal.” He did not list a previous employer. Defendant suffered a broken
neck and back from the incident. He had acid reflux and was being treated for anxiety and
depression. Defendant had used alcohol, cocaine, and cannabis. His first use was at age 16. He
last used on June 14, 2023. He denied “any current substance abuse concerns” and reported using
“alcohol on Wednesday, 6/14/23, [cannabis] on Tuesday, 6/13/2023 and Cocaine when he was
19 years old (one time).” Defendant had attended treatment in Florida in 1997. Defendant denied
having a drug or alcohol problem.
¶ 13 On March 18, 2024, the trial court entered a written order to detain defendant.
The court found, by clear and convincing evidence, the dangerousness standard had been proved.
The court, in finding defendant posed a real and present threat and why less restrictive conditions
would not mitigate that threat, the court summarized the circumstances of the offense. The court
also cited the pretrial report:
“The [pretrial service] Report also indicates defendant has a
history of alcohol, cocaine (defendant stated the cocaine was only
one time) and [cannabis] use dating back to when he was 16 years
old. Defendant was 46 years old at the time of the [driving under
the influence] arrest. Defendant has a history of putting others in
the community in danger. In a previous arrest in Winnebago
County defendant was alleged to have fired a shotgun in the
direction of his neighbor’s property. Upon contact with police,
defendant then resisted arrest and ultimately was tased by police.
Defendant pled guilty in that case to Reckless Discharge of a
Firearm and [was] placed on probation. These actions on the part
of defendant pose a real and present threat to the safety of the
community.”
The court further emphasized not only the nature and circumstances of the charged offenses but
also defendant’s behavior at the bar, as well as the fact defendant had undergone substance-abuse
[SEGMENT 14]
treatment. The court observed defendant did not believe he had a drug or alcohol problem but
“consumed alcohol to a point where he was twice the legal limit and admitted that he knew he
was incapable of safely driving a motor vehicle.” The court rejected defendant’s suggestions for
release conditions:
“Defendant offered suggestions for conditions of release
but provided scant information about his living arrangements and
how he would propose to get to and from any court ordered
appointments or drops since he does not have valid driving
privileges. Defendant suggested a curfew. This requires a landline
and there was no assurance that those calls would not be
transferred to a mobile device at a different location. Our current
technology does not have [GPS] capabilities to monitor a
defendant’s specific location. Although defendant has previously
undergone substance abuse treatment in the past, there is no
evidence of any recent treatment. A suggested [secure continuous
remote alcohol monitoring] device would not provide adequate
protection of the public as it does not prevent someone from
consuming alcohol and driving, it only attempts to monitor
consumption, with the results often not being reported for days or
weeks. Further, it does not detect THC or other substances.”
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 In March 2024, defendant filed a notice of appeal, arguing the State failed to
prove by clear and convincing evidence he poses a real and present threat to the safety of a
person or persons or the community and no condition or combination of conditions can mitigate
that alleged threat. As to his first argument, defendant maintains this court, in [CITATION], “rejected the trial court’s attempt to bootstrap the
‘real and present danger’ finding to its finding that Defendant was presumed to have committed a
criminal act with dangerous elements.” He contends the trial court did the same here while
essentially detaining him based simply on the charged conduct. Defendant further maintains the
court’s decision was improperly based on the conclusion defendant had a long history of alcohol
and drug use and on a 15-year-old conviction to find defendant is a present danger.
¶ 17 The Code presumes all criminal defendants are eligible for pretrial release. 725
ILCS 5/110-6.1(e) (West 2024). Before a trial court may order a defendant detained, the State
must prove multiple elements. One is to prove by clear and convincing evidence “the defendant
poses a real and present threat to the safety of any person or persons or the community, based on
the specific articulable facts of the case.” Id. § 110-6.1(e)(2). The trial court has broad discretion
in choosing what factors to consider in making this determination. See id. § 110-6.1(g) (setting
forth factors a trial court may consider when considering dangerousness). These factors include
the nature and circumstances of the offense charged (id. § 110-6.1(g)(1)) and defendant’s history
and characteristics (id. § 110-6.1(g)(2)). We review decisions regarding pretrial detention for an
abuse of discretion. [CITATION], ¶ 35 (refusing to apply the
manifest-weight-of-the-evidence standard). This court will find an abuse of discretion only if we
conclude the trial court’s decision is unreasonable, arbitrary, or fanciful or we conclude no
reasonable person would agree with the decision. [CITATION], 2023 IL App (4th) 230864,
¶ 10.
¶ 18 The trial court did not abuse its discretion in finding defendant to be a threat to the
community. The court emphasized not only the nature and circumstances of the offense but also
defendant’s behavior preceding his driving under the influence, including taking three shots of
vodka from behind a bar and refusing to pay. While defendant seemingly contends the court
erred by finding a history of alcohol abuse and, according to defendant, implying he had been
doing so for over two decades, we find no error in the court’s citing this history. Defendant had
received treatment, and defendant admitted consuming alcohol and cannabis. We also find no
error in the court’s reliance on defendant’s 2009 conviction. The court’s decision finding
defendant a threat to the community is not based solely on that nearly 15-year-old conviction.
Instead, it was based on the circumstances of the charged offense, the circumstances preceding
the offense, the admission of drug and alcohol use, defendant’s having received treatment for
drug and alcohol use in the past, and defendant’s 2009 conviction for shooting a weapon at his
neighbor’s house. The court’s conclusion defendant is a threat is not fanciful, arbitrary, or
unreasonable.
¶ 19 Defendant next challenges the trial court’s finding the State proved by clear and
convincing evidence no condition or combination of conditions can mitigate the threat.
Defendant, citing [CITATION], contends the trial court here erred
as in [CITATION] by speculating as to whether possible pretrial conditions would allow for
monitoring, rather than preventing, an infraction. Defendant also maintains here, as in
[CITATION], the court’s findings were not specific to him, and he emphasizes the proffer showing
he complied with earlier terms of probation. Defendant further argues the trial court shifted the
burden to defendant to provide assurance calls would not be transferred to a mobile device.
¶ 20 Before a defendant may be denied pretrial release under the dangerousness
standard, the State must prove by clear and convincing evidence “no condition or combination of
conditions set forth in subsection (b) of Section 110-10 of this Article can mitigate *** the real
and present threat to the safety of any person or persons or the community, based on the specific
articulable facts of the case.” 725 ILCS 5/110-6.1(e)(3)(i) (West 2022).
¶ 21 The trial court did not abuse its discretion in finding the State proved this element
by clear and convincing evidence. This case is not like [CITATION]. In [CITATION], the court relied
on information outside the record to find pretrial release conditions were “loosely monitored”
and were not, therefore, adequate to mitigate the threat. [CITATION],
¶ 17. We reversed upon finding “a court should not rule out pretrial release for a defendant based
====== End of the Part ====== on a general perception that conditions of release are loosely monitored.” [CITATION] Here, the
court was not concerned defendant would be “loosely monitored” but found, based on the nature
and circumstances of the offense and defendant’s history, including defendant’s conduct at the
bar, the potential conditions for release would be ineffective in mitigating the threat this
particular defendant poses to the community.
¶ 22 We are also not convinced the trial court shifted the burden of proof on this
element to defendant. It is clear by the court’s analysis it knew the State carried the burden of
proof. The court did not find defendant did not meet its burden of proof but found defendant’s
proffer was insufficient to counter the State’s proffer a curfew or home confinement would be
insufficient. According to the pretrial report, defendant, if released, intended to reside at the
residence where he had lived with a child for two and a half years. The State argued defendant
should not be allowed to stay at home as landlines may be forwarded. Defendant countered the
State’s proffer by stating, contrary to what was recorded in the pretrial report, he would reside
with a relative he did not name and that did not yet have a landline. The burden was not shifted;
the court simply did not accept defendant’s vague counter argument.
¶ 23 We also note defendant’s contention the trial court erred in stating twice
defendant’s substance use began at age 16. Defendant contends “[a]t no time in the two-part
hearing was the age 16 mentioned by either counsel” and the pretrial service report does not
reference it. Defendant is incorrect. The pretrial service report plainly states defendant reported
“Age at first use: 16.”
¶ 24 III. CONCLUSION
¶ 25 We affirm the trial court’s judgment.
¶ 26 Affirmed.
- 10 -
2024 IL App (1st) 240259
No. 1-24-0259B
Opinion filed June 28, 2024
Sixth Division
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 24110508401
)
BRIAN CARTER ) Honorable
) Ankur Srivastava,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices C.A. Walker and Tailor concurred in the judgment and opinion.
OPINION
¶1 Before the trial court concluded that “nothing *** short of” pretrial detention would
suffice, it should have considered other statutory conditions. When ordering Brian Carter detained,
the trial court erred by overlooking several enumerated conditions besides detention under article
110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)), as
amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act.
[SEGMENT 15]
We reverse and remand for a new hearing on the State’s petition to detain.
¶2 BACKGROUND ¶3 Brian Carter stood accused of aggravated battery with a firearm and aggravated discharge
of a firearm for allegedly shooting into a car traveling alongside him. The State sought to deny
him pretrial release.
¶4 Hearing
¶5 The State provided an account from the driver of a car that had quickly merged into Carter’s
lane to avoid a parked truck, after which Carter tailgated the driver and his passenger. Through the
rearview mirror, the passenger saw Carter appear to wave a gun. Carter soon pulled into oncoming
traffic and shot at the driver’s side, shattering the rear passenger window. The passenger called
911 and narrated as the driver began to chase Carter. When the driver caught up, Carter again
pulled into oncoming traffic and shot. A bullet “grazed” the driver’s right knee and struck the
passenger’s left knee.
¶6 According to the State’s proffer, officers learned Carter was driving his mother’s leased
car. His mother reported Carter had told her about the incident. Officers Mirandized (see [CITATION])
and interrogated Carter. He acknowledged the shooting and
described fearing for his life as the other driver tried to push his car into oncoming traffic. Carter’s
first shot was a warning. He fired again after seeing a hand emerge from the other car. Carter drove
to work following the incident. Officers located two shell casings in his mother’s car.
¶7 Carter had no criminal history or traffic citations. He had a firearm-owner identification
card but no concealed-carry license. Pretrial services assigned Carter’s “new criminal activity” and
“failure to appear” scores one (out of six) and recommended pretrial monitoring. Carter’s counsel
highlighted his circumstances, including that Carter was 30 years old; was employed part-time as
a “stagehand/driver”; lived with his wife, three children, and mother; and drove his children to
school daily. He also looked after his mother, who was battling late-stage cancer.
¶8 The trial court ordered Carter’s pretrial detention, finding the three elements of section
110-6.1(e) of the Code (725 ILCS 5/110-6.1(e) (West 2022)) satisfied.
¶9 As for the first two elements, the trial court determined that (i) the proof was evident or the
presumption great that Carter committed the detention-eligible offense, namely, aggravated
discharge of a firearm, and (ii) Carter posed a real and present threat to the safety of the people he
shot as well as others, like those on the road and sidewalk near the rolling shooting. See [CITATION] § 110-
6.1(e)(1)-(2).
¶ 10 The third element, whether any condition or combination of conditions can mitigate the
real and present threat, was a “harder question” for the trial court. See [CITATION] § 110-6.1(e)(3). Carter
posed “a good person” who found himself “now in a really bad situation.” The trial court stated:
“[T]he types of conditions I can impose don’t stop this kind of thing from happening. If I
put you on a curfew, if I put you on electronic monitoring, you still have the ability to drive
around and do the things you need to do to live, as you should. *** If you’re out doing
those things, the conditions I can impose would not stop something like this from
happening again. There is really nothing I could do short of detaining you to make sure
that this type of incident does not occur again. And what’s concerning to me is that it’s
unprovoked.”
¶ 11 In a written order, the trial court added that the proffered facts “suggest[ed] a lack of
impulse control” and “[t]he conditions this court could impose would not prevent an incident like
this from occurring again.”
¶ 12 Carter filed a timely notice of appeal from the pretrial detention order. He argues the trial
court erred by finding against him on the third element.
¶ 13 ANALYSIS
¶ 14 We review the trial court’s order under a bifurcated standard of review. [CITATION] ¶ 13. But see [CITATION], ¶¶ 12-35
(canvassing appellate court split on standard of review), appeal allowed, No. 130626 (Ill. Jun. 11,
2024). We reverse findings against the manifest weight of the evidence and review the trial court’s
ultimate decision for an abuse of discretion. [CITATION], ¶ 13.
¶ 15 Illinois law now presumes defendants are eligible for pretrial release. 725 ILCS 5/110-2(a),
110-6.1(e) (West 2022). The parties’ dispute concerns the third element. Carter contends the
proffered facts about the alleged offenses fail to prove that no condition or combination of
conditions can mitigate the real and present threat he poses. See [CITATION], ¶ 21 (rejecting contention that reciting language of the Code satisfies burden to prove
third element). In opposition, the State argues that neither home confinement nor electronic
monitoring would protect the public from Carter’s alleged anger and impulsivity.
¶ 16 The parties, however, offer an incomplete analysis, as did the trial court. The trial court
erred by (i) coupling its analysis of the third element to the alleged offenses and (ii) overlooking
conditions short of detention, which could mitigate any real and present threat Carter posed.
¶ 17 We begin with section 110-5(a). It lists several factors a trial court must consider when
“determining which conditions of pretrial release, if any, will reasonably ensure *** the safety of
any other person or the community and the likelihood of compliance by the defendant with all the
conditions of pretrial release.” 725 ILCS 5/110-5(a) (West 2022). Next, section 110-5(c) cross-
references section 110-10(a) and (b). Id. §§ 110-5(c), 110-10(a)-(b). Those sections particularize
mandatory conditions of pretrial release (id. § 110-10(a)) and provide a nonexhaustive list of
discretionary conditions, but only when they “include the least restrictive means and [are]
individualized” (id. § 110-10(b)).
¶ 18 First, the trial court zeroed in on Carter’s “really bad situation,” that is, the alleged offenses.
True, what Carter sketches as allegations, the State fairly presents as possible evidence of anger
and impulsivity. Even so, the context of the alleged offenses is relevant—context shapes facts,
after all—but also inconclusive. [CITATION], ¶¶ 17-18 (bare
allegations relevant but insufficient to satisfy third element). Nothing in the record indicates that
the trial court considered the alleged offenses along with other evidence, such as Carter’s lack of
criminal history and, until that point, lawful possession of a weapon. When weighing whether to
order pretrial detention, the trial court must assess all of the evidence before it.
¶ 19 Next, when ordering Carter’s pretrial detention, the trial court fixated on electronic
monitoring and home detention, conditions appearing in a single subsection (725 ILCS 5/110-
5(b)(5) (West 2022)). This narrow focus disregarded the other enumerated conditions, for example,
that Carter “[r]efrain from possessing a firearm or other dangerous weapon.” Id. § 110-10(b)(2).
Section 110-10(b)(9) also broadly authorizes courts to impose “other reasonable conditions”—
perhaps, a prohibition from driving while on pretrial prelease or confiscating his weapons and
FOID card—if those conditions are individualized and the least restrictive means possible to
ensure defendant’s appearance in court and compliance with pretrial release rules, court
procedures, and criminal statutes. Id. § 110-10(b)(9).
¶ 20 Thus, the trial court improperly applied its discretion under the Code. See [CITATION]
(“[A] trial court must exercise its discretion within the bounds
of the law.”). The Code offers far more options. [CITATION],
¶ 33-37 (remanding for new hearing where trial court failed to consider “full constellation of
conditions at its disposal”).
¶ 21 Before deciding that nothing short of pretrial detention will suffice, the trial court must
consider other statutory conditions, which did not occur here. See [CITATION], ¶ 19 (unreasonable detention orders reversible as abuse of discretion and against
manifest weight). Accordingly, we reverse.
¶ 22 CONCLUSION
¶ 23 We express no opinion on whether the trial court should order Carter detained. On remand,
the trial court should consider this question anew, consistent with our decision.
¶ 24 Reversed and remanded.
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 24110508401;
the Hon. Ankur Srivastava, Judge, presiding.
Attorneys Sharone R. Mitchell Jr., Public Defender, of Chicago (Emily
for Motin, Assistant Public Defender, of counsel), for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Lynnette
for Cusack, Assistant State’s Attorney, of counsel), for the People.
Appellee:
[SEGMENT 16]
2024 IL App (1st) 240653-U
No. 1-24-0653B
Order filed June 27, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit
) Court of Cook County.
Plaintiff-Appellee, )
) No. 23 CR 5937
vs. )
)
FRANKLIN MCKELKER, ) Honorable
) Tiana S. Blakely,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Presiding Justice Rochford concurred in the judgment.
Justice Ocasio specially concurred.
ORDER
¶1 Held: We affirm the circuit court’s order where the evidence demonstrated that
McKelker’s continued detention was necessary to avoid a real and present threat
to the safety of any person(s) or the community, based on the specific articulable
facts of the case.
¶2 Defendant Franklin McKelker appeals the circuit court’s order granting the State’s petition
for pretrial detention, pursuant to Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023).
McKelker was arrested and charged prior to the effective date of Public Act 101-652 (eff. Jan. 1,
2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act ```plaintext
No. 1-24-0653B
(Act).1 For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 McKelker was arrested on May 3, 2023 and was charged with a combined 26 counts of
aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(2), (a)(4) (West 2022)), criminal sexual
assault (702 ILCS 5/11-1.2(a)(1), (a)(3) (West 2022)), and aggravated criminal sexual abuse (720
ILCS 5/11-1.60(a)(6), (b), (c)(1)(ii), (d) (West 2022)), following a July 4, 2022 incident in which
he sexually assaulted his 13-year-old sister-in-law, A.G.2 He was ordered held no bail and
remained in custody.
¶5 On March 5, 2024, McKelker filed a petition requesting that the court grant him pretrial
release under the Act. A week later, the State filed a responsive verified petition to deny pretrial
release, pursuant to sections 5/110-2 and 5/110-6.1 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/110-2, 110-6.1 (West 2022)).
¶6 The State’s petition alleged that McKelker committed an eligible offense (aggravated
criminal sexual assault) as listed in Section 5/110-6.1(a)(1.5) of the Code, and that he “poses a real
and present threat to the safety of any person or persons in the community.” Specifically, the State
relayed that:
“The victim and [McKelker] have known each other since the victim was born, and
the victim refers to [McKelker] as “Dad.” At the time of this incident, the victim was a 13-
year-old girl, and [McKelker] was a 31-year-old man. On or about July 4, 2022, the victim
had spent the day with [McKelker] and her sister to celebrate the Fourth of July holiday.
“The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither
name is official, as neither appears in the Illinois Compiled Statutes or public act.” [CITATION]. Raoul lifted the stay of pretrial release provisions and set an effective date of September
18, 2023. Id. ¶ 52; Pub. Acts 101-652, § 10-255, 102 1104, § 70 (eff. Jan. 1, 2023).
McKelker is married to A.G.’s sister and A.G. refers to McKelker as “Dad.” We refer to the victim
by her initials to maintain her anonymity.
``` No. 1-24-0653B
When they returned home, the victim and [McKelker] were sitting in the front room on the
main floor of the house. [McKelker] and victim were watching television and cuddling on
the couch. While on the couch, the victim began to feel itchy and so she removed her
leggings but kept on her underwear. [McKelker] went downstairs to get some lotion and
returned to the couch with it and began to apply lotion to the victim’s legs. [McKelker]
continued to rub the victim’s legs and moved his hand up to the victim’s inner thigh, near
her sex organ, and made the victim uncomfortable. [McKelker] then rubbed the victim’s
sex organ with his hand over the victim’s underwear. [McKelker] used two fingers to then
rub the victim’s sex organ underneath the victim’s underwear and then tried to insert his
fingers into the victim’s sex organ. At the same time, he was trying to penetrate the victim’s
sex organ with his fingers, [McKelker] was also biting the victim’s neck while commenting
about how the victim was tight. Every time someone would walk into the front room,
[McKelker] would stop what he was doing. The victim’s older sister, and [McKelker]’s
wife, walked into that room at one point but did not observe anything out of the ordinary
and left the room. After the older sister left, [McKelker] put his hands in the victim’s
underwear and tried to touch the victim’s chest, but [McKelker] was unable to make contact
with the victim’s skin because she was wearing a bra. [McKelker] eventually stopped when
the victim made something fall on the floor and then acted like she’d left her phone in her
purse. The victim told [McKelker] she was going to bed and then went upstairs to her
bedroom, but [McKelker] followed her to her room.
[McKelker] then acted like he was tucking the victim into bed, but then [McKelker]
began throwing the blankets to the side. He then grabbed the victim’s leg and moved it to
the side. [McKelker] touched the victim’s chest and put his hand on the victim’s sex organ
and began to rub the victim’s sex organ underneath her underwear. The victim tried to say
No. 1-24-0653B
something but couldn’t get words out. But when the victim started making noise,
[McKelker] covered the victim’s mouth, and the victim felt trapped. The victim’s sister
then came upstairs to the main floor from the basement where she told the victim that she
had to sleep downstairs in the victim’s mother’s room, and the victim went downstairs.
While she was in her mom’s room, [McKelker] came in to let the dog out. The victim was
laying in her mother’s bed, on her stomach, and [McKelker] laid down next to her and
began rubbing her back and touching the victim’s buttock over her underwear. [McKelker]
turned the victim over and made the victim lay on her back where he then started touching
her sex organ with his hand over the victim’s underwear. [McKelker] got off the bed and
grabbed the victim’s legs where he then moved the victim closer to him. The victim was
too shocked to say anything at that point. While at the side of the bed, [McKelker] removed
the victim’s underwear and began rubbing his fingers on the victim’s sex organ.
[McKelker] then flipped the victim over, so she was on her hands and knees and
[McKelker] tried to insert his penis into the victim’s sex organ but was unsuccessful.
However, [McKelker] did not stop. He then flipped the victim over onto her back and after
several more attempts, [McKelker] succeeded in penetrating the victim’s sex organ with
his penis. [McKelker] was not wearing a condom. The victim made noises during this time,
and [McKelker] covered her mouth with his hand. The victim saw [McKelker] making
facial expressions as if he was enjoying it and [McKelker] made comments as to the
tightness and wetness of the victim’s vagina. The victim felt pain from the penetration.
Eventually, [McKelker] stopped and left the room.
The victim then went to the bathroom and felt a burning sensation. The victim
[SEGMENT 17]
returned to her room and called her friend, who was another 13-year-old girl and made
disclosures. The victim then went to her brother, who was in his room with his girlfriend,
No. 1-24-0653B
and made disclosures to her brother. The brother confronted [McKelker], who made
denials, and the victim called her mother and made disclosures to her mother. The victim
was then taken to the St. James Hospital where she underwent a sex assault kit with a SANE
registered nurse. On or about December 12, 2022, the lab report for the sex assault kit was
completed, and one of the vaginal swabs tested positive for male sperm DNA which
eventually came back as [McKelker]’s DNA. The victim and her brother both positively
identified [McKelker] through single photo identifications. In early November 2022,
[McKelker] and witness Builta began working for the same company. Within the first week
of working with [McKelker], [McKelker] made admissions to witness Builta. On or about
May 3, 2023, [McKelker] turned himself in to the Flossmoor Police Department.
The release of [McKelker] would pose a real and present threat to the physical
safety of any person or persons. In support therefore the following is submitted:
[McKelker] assaulted the victim, who was a 13-year-old child, multiple times throughout
the evening of July 4, 2022. Even when the victim managed to get away from [McKelker]
and move to a separate room, [McKelker] followed her so that he would be able to continue
his assaults. [McKelker] was not deterred from his multiple assaults of the victim by the
presence of other family members in the home, nor was the fact that his own wife, the sister
of the victim, entered the very room in which he was assaulting the victim enough to
prevent [McKelker] from further assaulting the victim. [McKelker] caused the victim pain
throughout his assault.”
¶7 The court then conducted a hearing on the petitions. The State proceeded by presenting a
proffer substantially identical to that in its petition. 3 The State represented that McKelker has no
The State acknowledges that McKelker was incorrectly described as A.G.’s uncle in its petition
for detention and at the hearing.
No. 1-24-0653B
previous criminal history.
¶8 Defense counsel highlighted that McKelker’s wife, A.G.’s sister, was present at every court
date in support of him, as was his mother. Counsel further argued that McKelker’s parents have
lived in Homewood, Illinois for approximately 30 years and that their home was a possible place
for McKelker to stay while on EM. He is a high school graduate who has worked multiple jobs
throughout his adult life, including ten years as a chemical operations operator at a car paint
manufacturing company. Additionally, he has a five-year-old daughter and has been involved in
her life since birth. Counsel emphasized that McKelker became aware of the allegations against
him on July 5, 2022 and he voluntarily removed himself from the home. 4 Counsel argued that
McKelker’s lack of criminal background demonstrated he is not a threat to the community. Further,
counsel alleged that he was not a threat to A.G. because he removed himself from the home and
had discontinued any communication with her. Last, counsel contended it was notable that the
incident happened in July 2022, but McKelker remained out of custody until May of 2023 when
police requested that he surrender himself. This indicates that McKelker is not a flight risk.
¶9 In response, the State countered that McKelker is a “very dangerous man who had
unconsented sex with his own 13-year-old niece.” Additionally, the State highlighted that
McKelker confessed to a co-worker that “he put his penis into his 13-year-old niece’s vagina.”
The State concluded that McKelker is “definitely a danger to any woman on this planet, including
his own five-year-old daughter, because he can’t control himself.”
¶ 10 The court found the State proved by clear and convincing evidence that the proof is evident
and the presumption great that McKelker committed aggravated criminal sexual assault, and that
he poses a real and present threat to both A.G. and the community at large. Specifically, the court
McKelker and A.G.’s sister were living in the same home as A.G. at the time.
No. 1-24-0653B
stated that it believes, based on the proffered evidence, that McKelker is a threat to any minor,
including his own child. The court noted that McKelker does not have any criminal history and
surrendered to police, but addressed McKelker’s dangerousness, highlighting that the offense was
committed on the 4th of July at a familial holiday gathering. The court noted that A.G. was
victimized by someone she trusted and loved. Further, the court addressed why it believed no
conditions could mitigate the real and present threat McKelker poses, stating that EM was
inappropriate where the proffered evidence indicated that he assaulted a 13-year-old child more
than three times, following her through various rooms, with other adults present. The court
additionally explained that placing McKelker on EM at his mother’s home does not preclude the
possibility, as one of seven children, that there would be another holiday gathering or that he would
be exposed to another child in his mother’s house. The court noted that GPS would not mitigate
the threat, as it does not allow for his actions to be controlled and cannot ensure the safety of
children. Last, the court explained that these are just allegations currently, but did note that the
medical exam found McKelker’s DNA in semen removed from a vaginal swab of the victim.
Accordingly, the court ordered McKelker to remain remanded pending trial.
¶ 11 The court entered a written detention order using a template form that lists the requisite
three propositions preprinted on the form—(1) the proof is evident or the presumption great that
the defendant has committed a detention eligible offense, (2) the defendant poses a real and present
threat to the safety of any person(s) or the community, based on the specific articulable facts of the
case, and (3) no condition or combination of conditions of release can mitigate that threat. On lines
provided below each proposition, the court wrote specific facts from the case that it relied upon to
reach its findings. Beside the preprinted finding for the first proposition, the court wrote, “Agg.
Crim. Sex. Ass.” For the second proposition, the court wrote,
“He sexually assaulted his 13 year old niece multiple times, following her from
No. 1-24-0653B
room to room until he successfully penetrated her. He was relentless in his actions. He
assaulted her while his wife was present in the home, as well as other adults. He is a threat
to the victim and any minor children.”
For the third proposition, the court wrote:
“[Electronic Home Monitoring (EM)] will not mitigate the threat to the safety of
A.G. or any other minor in his presence. His wife walked in the very same room where he
was assaulting A.G. and he continued the assault when his wife left. The presence of other
adults in the home did not prevent [McKelker’s] actions. This court finds neither will GPS
or [EM].”
The order indicates that McKelker is to be detained pending trial.
¶ 12 McKelker filed a timely notice of appeal on March 21, 2024.
¶ 13 II. ANALYSIS
¶ 14 On appeal, McKelker filed a notice in lieu of a memorandum, choosing instead to stand on
the arguments he made in his notice of appeal. See [CITATION] (eff. Dec.
, 2023). Utilizing the approved form from the Article VI Forms Appendix to the Illinois Supreme
Court Rules (see [CITATION]), McKelker’s claims of error
consisted of two claims: (1) the State failed to prove by clear and convincing evidence that he
poses a real and present threat to the safety of any person(s) or the community, and (2) the State
failed to prove by clear and convincing evidence that no condition or combination of conditions
can mitigate the real and present threat he poses. More specific arguments were supplied in the
blank spaces below these preprinted assertions.
¶ 15 As further support, McKelker argues that the State failed to meet its burden to prove that
he poses a threat, where there were approximately 10 months between the offense date and the
date that charges in this case were filed. He states that he and A.G. lived in the same home before
No. 1-24-0653B
the allegations, and he immediately moved from that home and discontinued all communication
with A.G. following the allegations. Further, McKelker points out that he voluntarily surrendered
himself and has no prior arrest or criminal history. Next, he claims the State failed to prove that
[SEGMENT 18]
no conditions can mitigate any threat he may pose where he could be released on EM at his parent’s
residence in Homewood, Illinois. Additionally, he posits he could be placed on GPS and has no
objection to a “No Contact Order” with A.G. or any place she may frequent. Last, he argues that
no facts were presented indicating that lesser conditions are insufficient to ensure the safety of
A.G., and there is no evidence that there is a present threat to the safety of any other person or the
community.
¶ 16 The State chose to file a responsive memorandum, arguing that that the court properly
exercised its discretion where they proved by clear and convincing evidence that McKelker poses
a real and present threat to the safety of the community, and that no conditions could mitigate that
risk. The State asserts that the court’s finding that McKelker is dangerous was reasonable, based
on the proffered evidence and statutory factors.
¶ 17 In considering this appeal, this court has reviewed the following documents which were
submitted under Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023): (1) McKelker’s notice
of appeal pursuant to the Act, (2) the supporting record, and (3) the State’s Response to McKelker’s
appeal.
¶ 18 “Pretrial release is governed by section 110 of the Code as amended by the Act.” [CITATION],
¶ 4 (citing 725 ILCS 5/110-1 et seq. (West 2022)). Pursuant
to the Code, “it is presumed that a defendant is entitled to release on personal recognizance on the
condition that the defendant shall attend all required court proceedings and the defendant does not
commit any criminal offense, and complies with all terms of pretrial release.” 725 ILCS 5/110-2(a)
(West 2022). Under the Code, all persons charged with an offense are eligible for pretrial release
No. 1-24-0653B
before conviction. Id. The court may deny pretrial release only upon a verified petition by the State
and following a hearing. 725 ILCS 5/110-6.1(a) (West 2022). It is the State’s burden to prove by
clear and convincing evidence that (1) the presumption is great or the proof evident that the
defendant committed a detainable offense, (2) the defendant poses a real and present threat to the
safety of any person(s) or the community, based on the specific and articulable facts of the case,
and (3) no condition or combination of conditions can mitigate the threat the defendant poses, or
prevent the defendant’s willful flight from prosecution. 725 ILCS 5/110-6.1(e)(1)-(3) (West 2022).
The standard “requires proof greater than a preponderance, but not quite approaching the criminal
standard of beyond a reasonable doubt.” [CITATION]
¶ 19 If the court determines that the State has met its burden and the defendant should be denied
pretrial release, the court is required to make a written finding summarizing the reasons for denying
pretrial release. Id. § 6.1(h)(1). If the court finds that detention is not appropriate, it can impose
additional conditions if it determines such conditions:
“are necessary to ensure the defendant’s appearance in court, ensure the defendant
does not commit any criminal offense, ensure the defendant complies with all conditions
of pretrial release, prevent the defendant’s unlawful interference with the orderly
administration of justice, or ensure compliance with the rules and procedures of problem
solving courts.” 725 ILCS 5/110-10(b) (West 2022).
¶ 20 Section 110-7.5 of the Code provides guidance regarding individuals who were arrested
prior to the effective date of the Act and separates those individuals into three categories. 725 ILCS
/110-7.5 (West 2022). The first category is comprised of any defendant released subject to pretrial
conditions prior to the Act’s effective date. Id. § 110-7.5(a). The second category is comprised of
any defendant remaining in pretrial detention after having been ordered released with pretrial
conditions, including the condition of depositing monetary security. Id. § 110-7.5(b). Last, the
```plaintext
No. 1-24-0653B
third category is comprised of “any person, not subject to subsection (b), who remains in pretrial
detention and is eligible for detention under Section 110-6.1.” Id.
¶ 21 McKelker falls into the third category, as an individual who was ordered held “no bail”
prior to the Act’s effective date. Section 5/110-7.5(b)(1) specifically states that such defendants
“charged with offenses under paragraphs (1) through (7) of subsection (a) of Section 110-6.1 [shall
be entitled to a hearing] within 90 days of the person’s motion for reconsideration of pretrial release
conditions.” However, the statute does not specify what type of hearing such defendants are
entitled to. While section 5/110-7.5(b) explains that the second category of defendants “shall be
entitled to a hearing under subsection (e) of Section 110-5,” the third category is specifically
comprised of those defendants “not subject to subsection (b),” despite the third category itself
being defined within subsection 5/110-7.5(b).
¶ 22 Although both parties and the trial court appeared to operate under the assumption that
McKelker was entitled to a new detention hearing pursuant to section 5/110-6.1 of the Code, it
would appear from the statute’s plain language that it does not contemplate a new detention hearing
for defendants such as McKelker—those arrested prior to the Act, who were previously detained
by the court following a bond hearing. Instead, it appears that similarly situated defendants are
entitled to a hearing to reconsider pretrial release conditions—a hearing more akin to that
contemplated in section 5/110-5(e) of the Code. See [CITATION], ¶ 25 (holding that the only hearing referenced in subsection 110-7.5(b) is a subsection
-5(e) hearing and noting that a hearing on pretrial detention for an individual the statute
recognizes to be detained ‘is nothing if not redundant.”). Both McKelker and the State
acknowledged that McKelker was previously ordered detained. Accordingly, the appropriate
question before the court was whether continued detention was necessary “to avoid a real and
present threat to the safety of any person or persons or the community, based on the specific
``` No. 1-24-0653B
articulable facts of the case, or to prevent the defendant's willful flight from prosecution.” 725
ILCS 5/110-6.5(i-5) (West 2022).
¶ 23 For detained defendants, “the Code does not require the court to again make specific
findings that the State proved the three propositions by clear and convincing evidence as required
at the initial hearing.” [CITATION], ¶ 13. “Notably, this portion of the Code, unlike the portions dealing with petitions for detention, does not prescribe a quantum of
evidence or place a burden of proof on any party.” [CITATION], ¶ 18.
Further, subsection (i-5) requires the court to make the determination at each subsequent
appearance. “This determination also does not contemplate the filing of a petition for detention.”
Id. Nonetheless, here the State filed a responsive detention petition after McKelker filed his
petition for pretrial release, and the court proceeded as if it was an original detention hearing. We
note that the State’s apparent acquiescence to a section 110-6.1 detention hearing and the court’s
findings consistent with such a hearing did not render the proceeding a proper detention hearing.
However, the required finding in section 110-6.1(i-5) shares some commonalities with the burden
the State must meet at an initial detention hearing. [CITATION], ¶ 33.
¶ 24 We now turn to the hearing that was held on March 11, 2024. Since the appellate court
began deciding appeals pursuant to the Act, the court has consistently reviewed the trial court’s
pretrial release findings under either an abuse of discretion or a manifest weight of the evidence
standard. See [CITATION], ¶¶ 13-35 (thoroughly discussing the
different standards of review as applicable to a decision under the Act). We need not opine on
which of these two standards of review is proper, where the result of this case would be the same
under either an abuse of discretion or manifest weight standard. We acknowledge that some
justices have advocated for a de novo standard of review, however, no panel of the court has
reviewed a pretrial release appeal utilizing de novo review.
No. 1-24-0653B
¶ 25 Here, the evidence proffered demonstrated that McKelker’s continued detention is
necessary to avoid the real and present threat he poses. McKelker sexually assaulted his
-year-old sister-in-law more than three times at a familial gathering. As she attempted to flee
[SEGMENT 19]
from McKelker, he followed her, moving from room to room and continuing his sexual assault.
McKelker’s DNA was found in semen recovered from a vaginal swab of the victim. The court
noted McKelker was someone the victim trusted and loved and that she referred to McKelker as
“dad.” During the course of the assault, McKelker’s wife—also the victim’s sister—entered the
room; even this was not enough to make McKelker stop his assault. The presence of multiple adults
in the family home did nothing to deter McKelker as he pursued the victim throughout the house.
The court specifically found that McKelker is a danger to not only the victim, but to his own
biological five-year-old daughter, as well as any other child he may encounter. Moreover, while
defense counsel argued that McKelker could be put on EM and reside at his mother’s home, the
court made it clear that, based on the articulable facts of the case, the presence of family was not
enough to deter McKelker’s actions. Further, the court found that no restriction it could impose
would have any effect on whether McKelker would encounter children at his mother’s house, and
neither EM nor GPS could protect any children McKelker might be around. We find the facts
proffered in this case support the court’s decision to deny McKelker's motion and its conclusion
that continued detention was necessary. Based on the foregoing, we cannot say that the court’s
decision is unreasonable, arbitrary, or not based on the evidence presented.
¶ 26 III. CONCLUSION
¶ 27 Following a thorough review of the record on appeal, for the reasons stated, the circuit
court’s order is affirmed.
¶ 28 Affirmed.
¶ 29 JUSTICE OCASIO, specially concurring:
No. 1-24-0653B
¶ 30 I concur in the judgment, but I respectfully disagree regarding the standard of review. I
continue to hold the conviction that, except for findings of historical fact, the standard of review
in appeals from detention orders should be de novo. See [CITATION], ¶¶ 79-138. (Ellis, J. concurring).
2024 IL App (4th) 240541
FILED
June 26, 2024
NO. 4-24-0541 Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Macoupin County
LEE C. WALTON, ) No. 23CF275
Defendant-Appellant. )
) Honorable
) Joshua A. Meyer,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Justices Zenoff and Lannerd concurred in the judgment and opinion.
OPINION
¶1 After his initial pretrial release on conditions was revoked, defendant Lee C.
Walton was detained prior to trial pursuant to section 110-6 of the Code of Criminal Procedure of
1963 (Code) ([CITATION]), as amended by Public Act 101-652 (eff. Jan. 1,
2023), commonly referred to as the Pretrial Fairness Act (Act). Subsequently, the circuit court
found that defendant’s continued detention was reasonably necessary to ensure his appearance at
court hearings and to prevent the commission of a future felony or Class A misdemeanor. [CITATION]. Defendant now appeals, arguing that his continued detention is no
longer necessary.
¶2 For the following reasons, we affirm.
¶3 I. BACKGROUND ¶4 Defendant was charged by information in Macoupin County case No. 23-CF-275
with two counts of aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4) (West 2022))
(Class 2 felony); criminal trespass to a residence (id. § 19-4(a)(2)) (Class 4 felony); and aggravated
assault involving the use of a deadly weapon (id. § 12-2(c)(1)) (Class A misdemeanor). The
incident occurred on the 900 block of Johnson Street in Carlinville, Illinois. The State initially did
not petition the court to detain defendant pending trial pursuant to the Code. See 725 ILCS 5/110-
6.1(a) (West 2022). On December 17, 2023, defendant was granted pretrial release on the
following conditions relevant here: (1) the mandatory condition that he not violate any criminal
statute of any jurisdiction (id. § 110-10(a)(4)) and (2) the additional condition that he not enter the
900 block of Johnson Street in Carlinville, Illinois (see id. § 110-10(b)(4)).
¶5 About two weeks after being granted pretrial release, defendant was charged with
six new offenses in Macoupin County case No. 24-CF-2: aggravated battery of a peace officer
(720 ILCS 5/12-3.05(d)(4) (West 2022)) (Class 2 felony); criminal trespass to a residence
(id. § 19-4(a)(2)) (Class 4 felony); two counts of resisting arrest (id. § 31-1(a)) (Class A
misdemeanor); battery (id. § 12-3(a)(2)) (Class A misdemeanor); and criminal trespass to land
(id. § 21-3(a)(2)) (Class B misdemeanor). The charged events are alleged to have occurred on
January 3, 2024, on the 900 block of Johnson Street in Carlinville.
¶6 On January 4, the State filed a verified petition to revoke defendant’s pretrial
release in case No. 23-CF-275 pursuant to section 110-6(a) of the Code ([CITATION]), contending that defendant’s conduct on January 3 demonstrated that he had violated
the conditions of his release and that detention was necessary to prevent him from being charged
with a subsequent felony or Class A misdemeanor. The State also filed a petition for sanctions
based on the same conduct. See id. § 110-6(e)(1).
¶7 The State’s petitions were filed on January 4, 2024. According to the State’s
proffer, on the evening of January 3, 2024, Carlinville Police Department officer Hunter Sutton
was dispatched to 911 Johnson Street, Carlinville, for a reported argument. Upon his arrival, Sutton
found an “ongoing argument.” He attempted to speak with defendant, who ultimately ended up
going upstairs, out a window, and onto the roof. Holding a cord, defendant stated that he was going
to hang himself. The cord snapped, and defendant fell from the roof.
¶8 Defendant then fled the scene and attempted to gain entry to a nearby residence on
Johnson Street, a location at which he had previously trespassed. The owner, however, had locked
the doors. Defendant then went to the back door of the residence and tried to push his way inside,
but he was unsuccessful because the property owner had barred the door. Defendant then fled and
gained entry to the residence of James Morgan, also on Johnson Street. Upon arrival, Sutton
observed defendant inside Morgan’s residence arguing with Morgan. Defendant wrestled with
Morgan before he was ultimately placed under arrest by Sutton and another officer. While
defendant was in the custody of the Macoupin County Sheriff’s Department, he resisted being
placed into his cell and spit on a police officer.
¶9 In response to the State’s petitions, defense counsel argued:
“Your Honor, [defendant] lives in [L]uka, Illinois. He works constructions [sic].
He suffers from sleep apnea and high blood pressure. He has two minor children
that he helps care for. He also is trying to get into school at Kaskaskia. He is willing
to do any pretrial condition in order to be released. He is asking for his release.”
¶ 10 Following arguments, the circuit court granted the State’s petition to revoke pretrial
release, finding “by clear and convincing evidence for the reasons stated on the record that no
condition or combination of conditions of release would reasonably” prevent defendant from being
charged with a subsequent felony or Class A misdemeanor. In further elaboration of its ruling, the
court stated in its written order that “defendant has multiple felony charges and has not followed
his PreTrial Release conditions. He has a significant criminal history and is suffering from mental
health issues.” The written order also stated the court’s conclusion that the conditions specified in
paragraphs 2 and 12 of its December 17, 2023, order for pretrial release had been violated.
Defendant did not appeal from any of the rulings made on January 4, 2024.
¶ 11 A pretrial status hearing was held on March 18, 2024; pursuant to section 110-6(j)
of the Code, the circuit court was obligated at that hearing to determine whether defendant’s
continued pretrial detention was necessary. Id. § 110-6(j). No transcript of that hearing is available,
but the parties have filed a stipulation with this court, which provides, in pertinent part, as follows:
[SEGMENT 20]
“Defense counsel *** proffered that the Defendant was not a danger to any person
or the community, as [he] was having mental health issues during the time of the
incidents in question, which have stabilized since that time. Mental health services
are not available to the Defendant in the Macoupin County jail. Further, that the
Defendant lives in [L]uka, [I]llinois, in Marion County, several counties away. He
also suffers from sleep apnea and uses a CPAP machine, which is not currently
functioning; he cannot remedy that issue in jail. Counsel further argued that
reasonable conditions exist to mitigate any perceived danger the Defendant poses,
including but not limited to being required to live at the [L]uka, [I]llinois residence,
court-ordered mental health treatment, and being ordered not to have contact with
specified persons and/or locations.”
The State argued,
“[T]he defendant poses a danger to the community because of his significant
criminal history, and the fact that he was previously released on pre-trial release
with conditions, and committed another offense while on release. Further, the State
argued that no reasonable conditions existed to mitigate the danger, because the
Defendant had been released on pre-trial conditions previously, and committed
another offense while on pre-trial release. In rebuttal, defense counsel argued that
the Defendant had not previously been released on the condition that the defense
was proposing at this time, and therefore, he did not have a history of
noncompliance with those conditions.”
¶ 12 At the conclusion of the March 18 hearing, the court found that continued detention
was necessary to reasonably assure defendant’s appearance for later hearings and to prevent him
from being charged with a subsequent felony or a Class A misdemeanor.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 As explained earlier, no appeal was taken from the January 4, 2024, order revoking
defendant’s pretrial release. Instead, defendant appeals from the circuit court’s order of March 18,
which found that continued detention was necessary to reasonably ensure defendant’s appearance
at subsequent hearings or to prevent him from being charged with a subsequent felony or Class A
misdemeanor. See 725 ILCS 5/110-6(j) (West 2022). On appeal, defendant argues his continued
detention was not necessary when the main issue surrounding his dangerousness—his mental
health crisis—had passed and the only way he could obtain necessary services was to be released
from jail. Before addressing the particulars of this case, it is useful to understand the nature of the
Act’s provisions for changes in, or subsequent circuit court review of, orders relating to detention.
¶ 16 A. Alteration of an Order Regarding Detention or Release
¶ 17 We believe our understanding of the applicable statutory provision may be aided
by reviewing the circuit court’s inherent authority to amend its orders, as well as the additional
provisions for changes in status added by the Act. In particular, we feel it is useful to compare the
provision at issue here to similar provisions also contained in the Code concerning the circuit
court’s obligation to review its prior detention-related decisions on an ongoing basis.
¶ 18
. Circuit Court’s Inherent Authority to Alter an Interlocutory Order
¶ 19 An order calling for a party to be detained prior to trial, or released but subject to
conditions, is not stand-alone legal determination, nor is it of lasting duration. Its existence is
entirely subservient to the litigation of the criminal charges that initiated the case. The detention
order seeks to govern the defendant’s status only through the ultimate disposition of the case; after
a defendant is sentenced, the detention order terminates. See [CITATION] (noting that a bail issue was mooted by the defendant’s final judgment of conviction).
Such nonfinal orders have been expressly referred to as “interlocutory.” See Ill. S. Ct. R. 604(h)(1)
(eff. Dec. 7, 2023).
¶ 20 “A court in a criminal case has inherent power to reconsider and correct its own
rulings, even in the absence of a statute or rule granting it such authority,” and the “court’s power
to reconsider and correct its decisions extends to interlocutory *** judgments.” [CITATION]; see [CITATION] (stating the same
proposition with respect to the Code, as amended by the Act). Consequently, the circuit court here
had the authority to revisit and alter its prior detention ruling. The Act, however, has added specific
provisions relating to changes to interlocutory orders for detention and release that supplement the
court’s inherent authority.
¶ 21
. Party’s Authority to Request a Change in Detention or Conditions
¶ 22 Not surprisingly, the Code allows the parties in a criminal case to argue, by way of
motion, for changes to certain orders pertaining to detention or release. For example, either party
may move to change the conditions of pretrial release. [CITATION] (noting
that conditions may not be increased absent a hearing). Where a defendant has been granted pretrial
release for a felony or Class A misdemeanor, the State may petition for revocation of release on
the basis that a new offense of the same statute has been committed. [CITATION]. Conspicuous
by its absence, however, is any provision for a defendant to seek release after being detained. This
may be explained by the fact that the Code provides that, even without a motion by the defendant
seeking release, it is always the circuit court’s obligation to continue to review the necessity of
continued detention. There are, in fact, three such provisions concerning review of detention or
conditions at every subsequent court appearance. We now examine each of them to aid in our
understanding of the provision applicable to this case.
¶ 23
. The Code’s Requirements for Ongoing Review of Detention Status
¶ 24 There are three similar provisions in the Code with respect to the circuit court’s
obligation to review detention or release status. For all three, the obligation to revisit the
defendant’s status arises at every subsequent court appearance.
¶ 25 The first provision requires that, when the circuit court releases a defendant on
conditions, it is required to review the continued necessity of those conditions:
“At each subsequent appearance of the defendant before the court, the judge must
find that the current conditions imposed are necessary to reasonably ensure the
appearance of the defendant as required, the safety of any other person, and the
compliance of the defendant with all the conditions of pretrial release. The court is
not required to be presented with new information or a change in circumstance to
remove pretrial conditions.” Id. § 110-5(f-5).
Of note is the last sentence concerning changes in circumstance. See [CITATION],
2024 IL App (1st) 232479, ¶ 44 (noting that no change in circumstances need be shown under
section 110-5(f-5)). As we will see, this express statement—that no “new information or a change
in circumstance” must be shown to seek the removal of conditions—is not mirrored in the other
two statutory sections concerning ongoing review of detention.
¶ 26 The second provision relates to review of detention status when a defendant is
initially released but later detained after that release has been revoked:
“At each subsequent appearance of the defendant before the court, the judge must
find that continued detention under this Section is necessary to reasonably ensure
the appearance of the defendant for later hearings or to prevent the defendant from
being charged with a subsequent felony or Class A misdemeanor.” 725 ILCS 5/110-
(j) (West 2022).
Here, defendant was initially released on conditions and then detained following revocation of his
release. Consequently, the circuit court’s subsequent review responsibilities in this case are
dictated by section 110-6(j).
¶ 27 Finally, the third provision requires a similar review of the continued necessity of
detention of defendants who were detained at the initial detention hearing:
“At each subsequent appearance of the defendant before the court, the judge must
find that continued detention is necessary to avoid a real and present threat to the
safety of any person or persons or the community, based on the specific articulable
facts of the case, or to prevent the defendant’s willful flight from prosecution.”
Id. § 110-6.1(i-5).
In other words, where a defendant is initially detained, the circuit court’s obligation to review the
necessity of detention at future court dates is dictated by section 110-6.1(i-5). See id.; [CITATION] Here, defendant was not initially detained; he was
released with conditions and later detained following revocation of his release. Consequently,
section 110-6.1(i-5) does not apply to him.
¶ 28 A statute should be evaluated as a whole, and each provision must be construed in
connection with every other relevant section. [CITATION] Comparing and contrasting these three similar provisions gives some
insight into the meaning of each. Pertinent here is the fact that, as previously noted, only section
110-5(f-5) provides that the “court is not required to be presented with new information or a change
in circumstance to remove pretrial conditions.” 725 ILCS 5/110-5(f-5) (West 2022). “ ‘When the
legislature includes particular language in one section of a statute but omits it in another section
of the same statute, courts presume that the legislature acted intentionally and purposely in the
[SEGMENT 21]
inclusion or exclusion [citations], and that the legislature intended different meanings and
results.’ ” [CITATION] (quoting [CITATION] Because only section 110-5(f-5)
specifically excludes the requirement to show “new information or a change in circumstance” (725
ILCS 5/110-5(f-5) (West 2022)), we conclude that such a showing is required for relief under
section 110-6(j) or section 110-6.1(i-5).
¶ 29 This is not a surprising conclusion. If a court has found that a defendant qualifies
for detention and no new information or change in circumstances is presented, it makes little sense
to think that court would reverse its prior ruling for no particular reason. The situation is different
when dealing with the conditions imposed on a released defendant, as conditions may be shown
to be lacking in one respect or another; they may be too stringent, too loose, or perhaps
unnecessary. The Code, as amended by the Act, simply recognizes that a court must continue to
manage conditions of pretrial release in the pretrial period regardless of any change in
circumstances. A decision to detain, however, requires no ongoing management by the court, and
there will likely be no reason to revisit it unless circumstances have changed or new information
has come to light.
¶ 30 B. Analysis of This Case
¶ 31 As noted above, a circuit court always possesses the inherent authority to change
its interlocutory rulings. However, we proceed with the understanding that a circuit court’s review
of the need for a defendant’s continued detention under section 110-6(j) would require the
defendant to demonstrate some “new information or a change in circumstance” in order to
demonstrate a right to a change in detention status. See id. § 110-6(j).
¶ 32
. Standard of Review
¶ 33 We review a circuit court’s detention order under an abuse of discretion standard.
[CITATION], ¶ 35. “ ‘An abuse of discretion occurs when the
circuit court’s decision is “arbitrary, fanciful or unreasonable,” or where “no reasonable person
would agree with the position adopted by the [trial] court.” ’ ” [CITATION], ¶ 10 (quoting [CITATION], ¶ 9, quoting [CITATION]). This discretionary standard applies to all aspects of detention,
whether resulting from an initial petition to deny pretrial release or a petition to revoke pretrial
- 10 - release. See [CITATION].
¶ 34
. Circuit Court’s Continued Detention Order
¶ 35 The appeal in this case is not from the circuit court’s January 4, 2024, revocation
order but from its March 18 order finding the necessity for continued detention under section
110-6(j). As explained above, the Code required defendant to present new information or a change
in circumstances to demonstrate a right to a change in his detention status. Here, defendant argued
some of the same reasons for release offered at the original detention hearing: that he lived well
outside Macoupin County in Luka, Illinois; that he suffered from sleep apnea; and that he would
comply with conditions if were to be given his pretrial release. However, he also offered up some
new information: that the mental health crisis that led to his detention had stabilized, that mental
health services for his continued recovery were not available in the jail, and that the CPAP machine
used to address his sleep apnea was not functioning and could not be fixed while he was in jail.
¶ 36 Because defendant presented the court with new information and/or a change in
circumstances, we must review for an abuse of discretion the circuit court’s decision that
defendant’s continued detention was necessary to reasonably ensure his appearance at later
hearings or to prevent him from being charged with a subsequent felony or Class A misdemeanor.
See 725 ILCS 5/110-6(j) (West 2022). It has been held that section 110-6.1(i-5)’s parallel
provision for review does not require a new evidentiary hearing, nor does it “prescribe a standard
of proof or place a burden of proof on any party.” [CITATION]. Section 110-6.1(i-5) has also been interpreted to mean that the “continued detention” decision is
the same as the initial detention decision but under a “less demanding standard.” 725 ILCS
5/110-6.1(i-5) (West 2022). We believe that the same observations are true with respect to section
- 11 - 110-6(j), the provision at issue here. The only difference between the two provisions is the type of
misconduct to be guarded against by the imposition of conditions (i.e., a threat to safety under
section 110-6.1(i-5), versus commission of a felony or Class A misdemeanor under section 110-
6(j)).
¶ 37 We note, however, that review of the necessity for continued detention under
section 110-6(j) cannot, as a practical matter, be undertaken without reference to the reasons for
the original detention decision. Consequently, while section 110-6(j) does not provide for the
circuit court to simply scrutinize the merits of the earlier detention, it does permit the court to
determine whether that decision, viewed against a change in circumstances or new information,
remains appropriate in the particular case in question. It has been suggested that, on appeal from
an order finding a need for continued detention, the reviewing court lacks jurisdiction to review
the original detention decision. [CITATION], ¶¶ 29-30. However, the original
detention order is always the context against which a subsequent review must be measured. It is
the baseline from which to assess the significance of any alleged change in circumstances or new
information.
¶ 38 In this case, defendant was granted pretrial release on December 17, 2023, subject
to the following conditions relevant here: (1) that he not enter the 900 block of Johnson Street in
Carlinville, Illinois, and (2) that he not violate any criminal statute of any jurisdiction. The record
is clear that defendant conspicuously violated two core conditions of his earlier release. This
episode was more than a minor misstep, and it looms large in determining whether releasing
defendant on conditions again would adequately prevent him from reoffending. Defendant’s
extensive criminal history also remains a factor that the circuit court rightly considered and
accounted for.
- 12 - ¶ 39 As for defendant’s argument that his mental health crisis has “stabilized” since the
time of the January 3 incident, the record gives little detail in support of this contention.
Furthermore, while it is undoubtedly true that defendant’s mental health needs could be better
addressed were he out of custody, that fact does not obviate the concern that his release on
conditions has once proven to be ineffective in guarding against reoffending. It is also unclear
why, if defendant was permitted to bring a CPAP machine into the jail, it was necessary that he
(rather than a friend or family member) must personally attend to its repair or replacement. The
“new information” or changes in circumstance argued by defendant provide a weak basis to depart
from the original detention decision.
¶ 40 Consequently, we conclude that the circuit court did not abuse its discretion in
finding that defendant’s continued detention was necessary.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, we affirm the circuit court’s judgment.
¶ 43 Affirmed.
- 13 - ```plaintext
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Macoupin County, No. 23-CF-
; the Hon. Joshua A. Meyer, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Manuela Hernandez,
for of State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
- 14 -
```
2024 IL App (4th) 240321
FILED
May 28, 2024
NO. 4-24-0321 Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
RICHARD D. ROMINE, ) No. 23CF345
Defendant-Appellant. )
) Honorable
) Ryan M. Cadagin,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Justices Steigmann and Lannerd concurred in the judgment and opinion.
OPINION
¶1 Defendant Richard D. Romine appeals the trial court’s February 5, 2024, order
denying him pretrial release pursuant to article 110 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/art. 110 (West 2022)), as amended by Public Act 101-652, § 10-255 (eff. Jan.
[SEGMENT 22]
1, 2023), commonly known as the Pretrial Fairness Act (Act). See Pub. Act 102-1104, § 70 (eff.
Jan. 1, 2023) (amending various provisions of the Act); [CITATION], ¶ 52
(setting the Act’s effective date as September 18, 2023). Defendant argues that the court erred in
detaining him pending trial for killing his mother, Donna Romine, in April 2023 because the State
failed to prove by clear and convincing evidence that he was a danger to the community and that
no combination of release conditions could mitigate the danger. Because the court did not abuse
its discretion in finding the State had met its burden of proof, we affirm. ¶2 I. BACKGROUND
¶3 The following allegations are taken from the common-law record and the transcript
of the February 5, 2024, detention hearing. Transcripts of the earlier proceedings are not included
in the record on appeal.
¶4 Defendant formerly owned a shooting range in Sangamon County, where he trained
more than 200 law enforcement officers on the use of firearms and the requirements of a
“concealed carry” permit. Before the events of this case, defendant had no criminal history other
than an arrest for a misdemeanor that was never charged. Defendant lived with Donna for almost
all his life; she reportedly suffered from bipolar disorder and had early signs of dementia.
¶5 According to defendant, Donna had a tendency to lash out, and on this occasion in
April 2023, Donna attempted to stab him. She grazed his arm, then attempted to stab him again, at
which point he drew a concealed firearm and shot her once in the head. Defendant’s friends later
said that he and Donna had been feuding because he believed she had stolen money from him.
After killing Donna, defendant left the scene.
¶6 On April 27, 2023, the police went to Donna’s house to check on her welfare after
receiving multiple calls from her friends saying that she had not been heard from recently and that
defendant might have been involved. It is unclear from the record how much time elapsed between
Donna’s death and the welfare check. No one answered the door at Donna’s house, so the police
called defendant, who told them that Donna was alive and well and that they should knock on a
particular window to get her attention. After the officers’ attempt was unsuccessful, they called
him again. He informed them that he could not drive to Donna’s house to let them in because he
was intoxicated, and he refused to accept assistance to get there. After he hung up, he tried to
destroy his phone.
¶7 The police looked in the window again and saw what appeared to be a human body
on the floor. They entered the house and discovered Donna with a pillow over her head and a single
gunshot wound. The police tracked defendant to an address in Springfield and pursued his vehicle
with their lights and sirens on, but defendant did not pull over until he reached the driveway of
another residence, running at least two red lights in the process. Defendant had a loaded AR-style
rifle within reach and was on the phone with an officer he had trained; the officer told him to
remove the magazine from the rifle and throw it out the car window, which defendant did. He then
tried to ingest a large number of pills, but the officers intervened. After defendant was arrested, he
told the police that his mother had likely been killed by someone named “John,” who defendant
suspected was trying to commit a burglary.
¶8 The State charged defendant with first degree murder (720 ILCS 5/9-1(a) (West
2022)), concealment of a homicidal death (id. § 9-3.4(a)), aggravated unlawful use of a weapon
(id. § 24-1.6(a)(1), (3)(A)), and aggravated fleeing and eluding a police officer (625 ILCS
5/11-204.1(a)(4) (West 2022)). The trial court set defendant’s bail at $2 million. Defendant could
not post the required $200,000 bail deposit, so he filed a motion to reduce his bail, which the court
denied. While defendant was detained, the Act took effect and abolished monetary bail in Illinois.
See [CITATION], ¶ 52.
¶9 In February 2024, defendant moved for reconsideration of his pretrial detention
under the Code; the State responded by filing a petition to deny him pretrial release on the grounds
of dangerousness and willful flight. See 725 ILCS 5/110-6.1(a)(1.5), (8) (West 2022). The trial
court proceeded to a hearing on the petition, at which the State and defendant proffered evidence
of the above allegations, including photographs of the crime scene that are not contained in the
record on appeal. The court denied defendant pretrial release and entered a written detention order
summarizing its findings.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 In ordering a defendant detained on dangerousness grounds, the trial court must
find that the State has met its burden of proving three elements by clear and convincing evidence:
(1) “the proof is evident or the presumption great that the defendant has committed an offense,”
(2) “the defendant poses a real and present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the case,” and (3) “no condition or
combination of conditions *** can mitigate *** the real and present threat to the safety of any
person or persons or the community.” Id. § 110-6.1(e)(1)-(3). We review the trial court’s decisions
regarding pretrial release for an abuse of discretion. [CITATION], ¶ 13, pet. for leave to appeal pending, No. 130626 (filed Apr. 19, 2024). “An abuse of discretion
occurs when the [trial] court’s decision is arbitrary, fanciful or unreasonable or where no
reasonable person would agree with the position adopted by the [trial] court.” (Internal quotation
marks omitted.) Id.
¶ 13 Defendant briefly addresses the first element in his notice of appeal, stating:
“Defendant is asserting the affirmative defense of self-defense. A deadly weapon (knife) was
recovered which supports Defendant’s affirmative defense. The State cannot prove by clear and
convincing evidence that the proof is evident or the presumption great that Defendant committed
the offense of first-degree murder.” Under Illinois law, the use of deadly force in one’s defense is
governed by the following standard:
“A person is justified in the use of force against another when and to the extent that
he reasonably believes that such conduct is necessary to defend himself or another
against such other’s imminent use of unlawful force. However, he is justified in the
use of force which is intended or likely to cause death or great bodily harm only if
he reasonably believes that such force is necessary to prevent imminent death or
great bodily harm to himself or another, or the commission of a forcible felony.”
ILCS 5/7-1(a) (West 2022).
See id. § 7-14 (“A defense of justifiable use of force *** is an affirmative defense.”). When this
affirmative defense is raised by the evidence at trial, the State must prove a lack of justification
beyond a reasonable doubt to obtain a conviction. See id. § 3-2.
¶ 14 This court has not yet addressed when, if ever, a defendant’s assertion of an
affirmative defense before trial can affect the State’s burden of proof on the first element at a
detention hearing. However, defendant makes no effort to address the statutory standard in his
notice of appeal or supporting memorandum, and that standard requires more than just evidence
that another person threatened to use unlawful force. See [CITATION], ¶ 35 (“[T]o obtain a jury instruction on self-defense, a defendant must establish some evidence of
six factors ***.”). Rather, defendant focuses on his claim of self-defense as it pertains to the
elements of dangerousness and conditions of release, so we will do the same. See [CITATION],
¶ 13 (declining to reach an undeveloped argument raised in a notice of
appeal).
¶ 15 Defendant argues that the State failed to establish his dangerousness because,
although he shot his mother, “[t]here is no evidence or even a theory that he poses a threat to any
other person or the community at large.” Defendant then cites [CITATION].
231753, ¶ 18, for the proposition that “bare allegations that [the] defendant has committed a violent
offense are not sufficient to establish th[e] element” “that no condition or combination of
conditions could mitigate the threat posed by [the] defendant” (id. ¶ 17 (citing 725 ILCS
5/110-10(b) (West 2022)). In [CITATION], the State relied only upon “a conclusory statement” with “no
evidence to support that conclusion” and “at no point referenced or discussed *** conditions or
section 110-10(b) of the Code.” Id. The appellate court concluded that “[i]f the base allegations
that make up the sine qua non of a violent offense were sufficient on their own to establish this
element, then the legislature would have simply deemed those accused of violent offenses
ineligible for release.” Id. ¶ 18. We agree with [CITATION] to the extent that it held a bare consideration
[SEGMENT 23]
of the defendant’s dangerousness, with absolutely no consideration of possible conditions of
release, cannot justify pretrial detention under the Act’s three-element framework. [CITATION],
¶ 18 (“[T]he fact that a person is charged with a detainable
offense is not enough to order detention, nor is it enough that the defendant poses a threat to public
safety.”).
¶ 16 However, defendant appears to believe that a single violent offense can never
justify pretrial detention when “it was not the result of a pattern of abuse or criminal behavior.” In
making this argument, defendant is subtly attempting to extend the express holding of [CITATION], in
which the appellate court found no error in the trial court’s consideration of the dangerousness
element but reversed based on the trial court’s consideration of the third element: conditions of
release. See [CITATION], ¶¶ 14-15 (“Defendant’s behavior as alleged, at a
bare minimum, was dangerous, and such behavior poses a threat to those around him even if he
did not intend any harm.”). Of course, dangerousness and conditions of release are two sides of
the same coin; the nature and severity of the threat necessarily determine the nature and severity
of the conditions that could—or could not—mitigate the threat. Compare 725 ILCS 5/110-6.1(g)
(West 2022) (listing considerations for determining dangerousness) with id. § 110-5(a) (listing
similar considerations for determining conditions of release).
¶ 17 In this sense, defendant’s argument has at least some basis in [CITATION], ¶ 18 (“This is not to say that alleged facts stating the basic elements of an offense
are not relevant or are not part of the proof that no conditions could mitigate the threat posed by a
defendant. But more is required.”). Here again, we agree with the proposition that “more is
required” only to an extent; an untried indictment or other charging instrument triggers the State’s
right to file a verified petition to deny pretrial release but has a different purpose altogether; it
needs only to present the most bare and conclusory facts necessary to state an offense. The full
picture of the underlying events, however, may be relevant to the trial court’s detention decision.
¶ 18 For instance, count I of the complaint in the present case charges that “defendant,
without lawful justification, and with the intent to kill or do great bodily harm to Donn[a] Romine,
personally discharged a firearm, and shot Donna Romine in the head, causing the death of Donna
Romine.” See 720 ILCS 5/9-1(a)(1) (West 2022). This allegation may provide the information
necessary to charge the offense in question, but it does not speak to defendant’s future
dangerousness or the possibility of conditions of release, nor is it intended to. See 725 ILCS
5/111-3(a) (West 2022) (specifying the formal requirements of a criminal charge). As such, [CITATION]’s
holding that “more is required” than the allegations in the charging instrument is axiomatic and
should not be read to say more than it does. [CITATION], ¶ 18.
¶ 19 However, the trial court does not simply review the charging instrument when
determining whether to detain the defendant on dangerousness grounds; indeed, the trial court must
go beyond these bare allegations to address “the specific articulable facts of the case.” 725 ILCS
5/110-6.1(g) (West 2022). In doing so, the court may consider “evidence or testimony concerning
*** [t]he nature and circumstances of any offense charged, including whether the offense is a
crime of violence” (id. § 110-6.1(g)(1)), although the trial court’s decision cannot be based
exclusively on this or any other single factor. See id. § 110-6.1(f)(7); [CITATION], ¶¶ 13, 18 (reversing a detention order when, “beyond the nature of the offenses
themselves, the State presented nothing to show that no set of conditions would mitigate the threat
to the victim defendant’s release would present”). Nevertheless, the evidence the court uses to
determine the nature and circumstances of the offense may also shed light on the other statutory
factors governing dangerousness and conditions of release, including those the trial court relied on
here: defendant’s personal history, statements attributed to him, the age and physical condition of
his mother, and his access to firearms. See 725 ILCS 5/110-6.1(g)(1)-(2), (4), (6)-(7); see also id.
§ 110-5(a) (providing that a determination regarding conditions of release shall be made “on the
basis of available information”). This same evidence would not be less probative on the question
of pretrial detention even if it provided the sole basis for the allegations in the charging instrument.
¶ 20 Ultimately, the evidence of a defendant’s charged conduct, even if it took place on
a single occasion, may reflect such a departure from the basic expectations of civil society that it
becomes difficult to predict the defendant’s compliance with court orders—or even societal norms
regarding the safety of others—if the defendant is placed on pretrial release. The presumption in
favor of pretrial release under the Act does not obligate a trial court to release such a defendant in
the hopes that his otherwise spotless record will negate the real and present threat he poses to the
safety of the community as shown by the State’s evidence.
¶ 21 In the present case, defendant does not dispute that he shot his mother, but he claims
that he acted in self-defense because she was approaching him with a knife and had already cut his
arm once. While we agree that his proffered evidence on this point was potentially relevant to his
alleged dangerousness, as well as the question of whether that alleged danger could be mitigated
by conditions of release, his focus on this evidence is myopic. The evidence of his subsequent
conduct, which the trial court properly considered in reaching its decision, paints a different picture
and undermines this characterization of defendant’s conduct. See id. § 110-6.1(g)(1) (providing
that the trial court may consider the “nature and circumstances of any offense charged” (emphasis
added)). The court was not required to accept defendant’s contention that he acted in self-defense
when the record permitted other conclusions concerning his culpability and, by extension, his
potential dangerousness.
¶ 22 It is unclear from the record whether prompt medical intervention might have saved
his mother’s life, but it is evident that defendant abandoned her body rather than calling the
authorities to explain the situation, preserve evidence to support his claim of self-defense, and have
his mother properly laid to rest. Even if defendant was uncertain about the right thing to do, he
could have called one of his many police contacts to ask, as he later did when he wanted to
determine what to do with his loaded rifle. Instead, when the police called him after he left the
house, he lied and said that his mother was alive and well, and then he attempted to destroy his
phone. Had the officers not investigated further, her death would have gone undiscovered even
longer. When police cars pursued defendant with their lights and sirens on, he refused to pull over
and ran red lights, and after the police arrested him, he lied again and said that a burglar named
“John” had likely killed his mother.
¶ 23 Defendant’s actions are not consistent with an innocent mistake or genuine remorse
but a concerted refusal to accept responsibility for conduct he knew was wrong. Defendants on
pretrial release are expected not just to comply with the terms of their release but to be forthright
```plaintext
about their efforts to comply and to accept responsibility for violations, even if they believe those
violations were innocent mistakes. In light of defendant’s repeated efforts to escape responsibility
for what he only now claims was an act of self-defense, the trial court’s conclusion that no
conditions of release could avoid the real and present threat defendant posed to the safety of the
community was within the bounds of reason.
¶ 24 Because the trial court did not abuse its discretion in ordering defendant detained
on dangerousness grounds, we decline to reach defendant’s arguments regarding willful flight.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the trial court’s judgment.
¶ 27 Affirmed.
- 10 -
``` [CITATION]
Decision Under Review: Appeal from the Circuit Court of Sangamon County, No. 23-
CF-345; the Hon. Ryan M. Cadagin, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Peter Sgro, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
- 11 -
NOTICE
IL App (4th) 240390-U
This Order was filed under
FILED
Supreme Court Rule 23 and is May 23, 2024
not precedent except in the
NO. 4-24-0390 Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
[SEGMENT 24]
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Peoria County
KESHAWN J. WILLIAMS, ) No. 24CF148
Defendant-Appellant. )
) Honorable
) Katherine G. P. Legge,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court.
Justices Harris and Lannerd concurred in the judgment.
ORDER
¶1 Held: The circuit court’s decision to detain defendant was not an abuse of discretion.
¶2 Defendant Keshawn J. Williams appeals from the circuit court’s February 23, 2024,
order denying his pretrial release pursuant to the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/110-1 et seq.) (West 2022)), hereinafter as amended by Public Act 101-652 (eff. Jan. 1,
2023), commonly referred to as the Pretrial Fairness Act. Defendant argues that the State failed to
meet its burden of proving by clear and convincing evidence that: (1) the proof is evident or the
presumption great that defendant committed the charged offense, (2) defendant posed a real and
present threat to the safety of any person or persons or the community, based on the specific,
articulable facts of the case, and (3) no condition or combination of conditions could mitigate the
real and present threat posed by defendant. ¶3 We affirm.
¶4 I. BACKGROUND
¶5 Defendant was charged by information with one count of armed robbery, a Class X
felony. Specifically, the information charged that on January 15, 2024, defendant, while armed
with a firearm, took a cell phone from the person or presence of Angel Brendlinger by the use of
force or threatening the imminent use of force. [CITATION] He was later
indicted on this charge.
¶6 A. Petition to Deny Pretrial Release and Hearing Thereon
¶7 On February 23, 2024, the State filed its verified petition to deny pretrial release.
A detention hearing was held the following day, at which the State proffered that, “on January
15th of this year Peoria Police responded to the alley in the 2100 block of West Lincoln on a
ShotSpotter alert,” and upon their arrival, they found Isaiah Sharp and Angel Brendlinger.
“Brendlinger told officers that they had come to purchase a vehicle after setting up the meeting
through Facebook.” She explained:
“When they arrived to the area, a male walked them down the alley to where the
vehicle was allegedly located. When they arrived, a number of people got out of a
waiting car with guns, and they demanded money, and one individual took a cell
phone from her pocket. She said Sharp then produced his own firearm and shot one
of the armed assailants. The others fled.”
According to the State, the individual shot by Sharp died of his gunshot wounds.
¶8 According to the State, the police recovered a security video capturing the incident,
showing Sharp and Brendlinger being walked to the garage by an individual.
“Then a number of armed individuals [got] out of a waiting SUV and [pointed]
guns at Sharp and Brendlinger. It show[ed] an exchange of gunfire between Marcus
Whitehead and Sharp and Marcus Whitehead [fell] to the ground. The armed
assailants, all but one[,] [got] into a Jeep and [fled]. The other [ran] between two
houses.”
¶9 According to the State, the detectives spoke to the owner of the SUV the assailants
got out of, who “told the detectives that he gave the vehicle to Sontarrius Williams [(hereinafter
Sontarrius)] who is this defendant[’s] *** brother. [The owner] had given it to *** [Sontarrius ] to
fix; and *** [Sontarrius] had the key to the vehicle.” Peoria police executed a search warrant at
the home of defendant’s brother and “found keys to the Jeep that was parked in the garage behind
the house.” The keys “matched the Jeep that was seen on the security video of the incident that
drove away the armed assailants. Keys were also found inside the home to the maroon SUV that
was used by the assailants during the incident.” Officers also recovered a home security video
system from Sontarrius’s home, which showed defendant, along with his brother Sontarrius and
Jalyn Branscumb, entering the home just minutes after the robbery.
¶ 10 The State said that Sontarrius was interviewed and “admitted to being present for
the incident but said that he did not participate in the robbery.” He also admitted, “that he was the
person that brought Sharp and Brendlinger down the alley to the garage.” Sontarrius identified
Branscumb and defendant as having participated in the robbery. “He said after the shots were fired,
he drove himself, Branscumb, and the defendant back to his house in the Jeep.” Branscumb was
also interviewed by Peoria police detectives, who told them that Sontarrius “set the whole thing
up.” Branscumb said he was “sitting in the rear passenger side of the maroon SUV” and that he
had a gun that had been given to him by Sontarrius. Branscumb said he “didn’t do anything major
during the incident. He said he just participated.” He also identified defendant as one of the people
who got out of the vehicle with a firearm for the robbery.
¶ 11 After the State’s proffer, defense counsel pointed out that defendant was “only 18
years old” and that “the evidence is very murky as to what exactly his involvement, if anything,
was here.” Defense counsel argued that, although “a video camera showed him with his brother
and another man who were suspects in this matter walking into his brother’s house,” there was no
verification by time stamps. Counsel also argued that no gun was found on defendant and that he
“has never had any adult felonies.” Although defendant had a juvenile case, it was at least five
years ago, and he “successfully completed his juvenile probation.”
¶ 12 Defense counsel stressed that defendant “had no failures to appear” and was
considered a low risk on the Virginia Pretrial Risk Assessment Instrument-Revised (VPRAI-R)
assessment summary. “He doesn’t have anything in his history relating to a gun. He doesn’t have
any history of violence. He doesn’t have anything but this juvenile case which is long ago over.”
Counsel further pointed out that defendant “has a job at OSF” and had “graduated from high
school.” Counsel said that defendant “would live with his mother. And he does not object to being
placed on an electronic monitor until he has his day in court where he can have a full trial on the
facts.”
¶ 13 The State reiterated that Sontarrius, “the defendant’s older brother, admitted to
being the individual who walked the two alleged purchasers down the alley.” He said that
“all four [got] out, [began] pointing firearms at [Brendlinger and Sharp]. They
[stole] a phone from *** Brendlinger demanding money to the point where ***
Sharp then [felt] it necessary that their lives are in danger to pull out his own firearm
and shoot resulting in the death of one of the defendant’s friend, Marcus
Whitehead.”
The State added, “I would very much challenge the characterization of the evidence as not
incredibly strong. The defendant’s own older brother name[d] the defendant as one of the
participants.”
¶ 14 The State said that Sontarrius and Branscumb had “both implicated themselves in
this. It wasn’t them saying, oh, it’s this other guy. They said they were involved. So, this is not
your normal, they were trying to get out of it and blaming someone else. They’re implicating
themselves and putting him as one of the individuals.” Moreover, it added:
“And the fact that just minutes after the incident takes place, their story is
absolutely corroborated by the video which shows all three of the people that
Sontarrius described coming home after the robbery are shown on video. All three
coming into Sontarrius’ home after the robbery.
So, I believe the evidence is overwhelming of the defendant’s guilt.”
¶ 15 The State also argued that defendant posed a danger to the community “given that
he’s apparently the type of individual who had planned an armed robbery. A very cold, calculated
robbery that was set up and planned from the get-go through Facebook. So, we would request the
defendant be detained.” When asked by the circuit court to respond to defense counsel’s statement
regarding electronic monitoring, the State answered:
“I think that the fact is that electronic monitoring would tell us whether the
defendant had done something very dangerous to the rest of the community after
the fact, but it does absolutely nothing to prevent the defendant from, again,
engaging in behavior that would put people in danger. That’s simply an
investigative tool after the fact. It doesn’t prevent the defendant from doing
[SEGMENT 25]
anything to harm the community.”
¶ 16 B. Court Rulings at Hearing
¶ 17 After hearing arguments, the circuit court granted the State’s motion to detain. The
court stated that it had “considered the proffered evidence and argument of both parties, the pretrial
services report as well as the defendant’s age, education, mental and physical condition as well as
employment, criminal history and risk assessment score and after consideration of all the factors
set forth under [section] 110-6.1,” and as a result, it found “that the State has met its burden that
the proof is evident or the presumption is great that this defendant has committed that offense via
the proffered facts.” The court found it very persuasive that defendant was “identified by a brother
as well as a second co-defendant who also made statements against their own interest confessing
to parts of the crime which are very, very serious, armed robbery.” It further found it significant
that all four of the men who exited the car—including defendant—had firearms and “then
proceed[ed] to rob at gunpoint the victim as named here as well as the other victim.” The court
then observed that home surveillance “shows minutes later the defendant as well as the other co-
defendant *** [perhaps] I should say the co-conspirator, the other individuals who are named in
this” “going back to the residence minutes later.”
¶ 18 On the issue of detention, the circuit court noted that defendant had a prior juvenile
“adjudication for residential burglary, unlawful possession of a stolen motor vehicle and resisting
a peace officer.” The court commented, “I’m mindful of the arguments that your probation was
successful in that case. It looks like there was a petition to revoke along the way. You served that
sanction but then otherwise finished your probation successfully.”
¶ 19 It further addressed defense counsel’s comment that defendant resided with his
mother.
“You’ve lived there at that specific residence for about a year. You’ve lived in the
Peoria area your whole life; and that you would return to the same residence upon
any release; that you’re single. You do have a child. Most of your family is in the
area, so you do have, it sounds, like stable family ties to the community and that
your mother—
***
*** And then you are employed, and you do have a diploma from
Richwoods High School. And, of course, the employment and education being very
positive factors in your situation.”
The court then stated that defendant ranked as a moderate risk on the VPRAI-R and had “[n]o
history of psychiatric or substance abuse. You’re not currently on probation, no prior failures to
appear.”
¶ 20 As to whether defendant posed a real and present threat to the safety of any person
or persons or the community based on the specific facts in this case and whether defendant posed
a risk of willful flight, the circuit court acknowledged that it did not consider defendant a flight
risk, but that the charged offense was “extremely serious, armed robbery with a firearm. The
history and characteristics of you as well as anyone to whom their safety would be threatened by
your release.” Although noting that defendant had not targeted a specific person for the crime
charged, the court stated, “it doesn’t matter who that person was. It could be anyone in the
community. If they have something that you or your co-conspirators found of value, that you used
a firearm and threat of force to take that from them against the laws of our state.”
¶ 21 Concerning the use of firearms,
“I don’t know the scenario about how you or your older brother or the rest of these
co-conspirators had access to firearms, but there were a lot of firearms involved.
Almost sounds like every single person in the vehicle, four out of four, had a firearm
and planned to use it against the victims here.”
The court said,
“you were working and living with your mother at the time that you managed to
have access to firearms—you and your co-conspirators—and so I don’t know that
releasing you back to your mother’s house is going to give me any confidence that
you couldn’t go do the same thing.”
¶ 22 Concerning defense counsel’s suggestion of monitoring, the circuit court stated,
“An ankle monitor doesn’t prevent you from going to wherever one goes at
years old and unlawfully finds themselves in possession of a firearm to use in
an armed robbery. So, knowing where you are at any given time wouldn’t prevent
the type of harm that is contemplated here.”
The circuit court further stated:
“[D]ue to the nature and the circumstances of this offense, I’ve reviewed all of these.
The most restrictive that I could impose still does not give me confidence that you
would not present a real and present threat to the safety of any person or persons or
the community based on the very serious allegations here ***.”
The court found that the State had met its burden of proof and granted its petition to detain.
¶ 23 C. Written Order
====== End of Ruling ====== ¶ 24 A written order for detention was entered on February 26, 2024, which found that
defendant had been charged with a detainable offense and that the State had met its burden of
showing the proof was evident or presumption great that defendant committed the charged offense.
The order further provided:
“On 1/15/2024, the Defendant along with four other identified individuals
planned a robbery of two individuals who thought they were buying a vehicle. A
coconspirator, who turned out to be Defendant’s older brother, took the two victims
to a back alley where a vehicle of four males—all four armed with firearms per
surveillance footage including the Defendant—jumped out of the vehicle and
attempted to rob the two [individuals] at gunpoint. During an ensuing scuffle
between the five robbers and two victims, the Defendant was identified as taking
the identified victim’s phone from her person. Shots were fired and one of the
individuals involved in the robbery died as a result. Additional home surveillance
showed [Defendant] and other coconspirators all arriving to a house ‘within
minutes’ of the robbery and shooting, and law enforcement found keys at the house
that were relevant to the vehicles involved. Two coconspirators made inculpatory
statements as to themselves and also implicated Defendant *** as being one of the
four males who waited in the car and jumped out with firearms to rob the two
victims. [Defendant’s counsel] proffered that no firearm was found on Defendant
at the time of his arrest, which was this week approximately a month after the crime
occurred.
The Court finds that the Defendant poses a real and present threat to the
safety of any person or persons or the community, based on the specific, articulable
facts of this case and that no condition or combination of conditions set forth in 725
ILCS 5/110-10 can mitigate the real and present threat for the reasons stated on the
record in open court and incorporated into this Order, and summarized above and
as follows. The nature and circumstances of the offense are very serious here as it
is a crime of violence, involving a firearm, use of that firearm to threaten and cause
serious harm. The type of harm created by the use of firearms in conjunction with
a robbery—violence—expressly played out in this scenario when shots were fired
and one of the individuals involved died. The victims did not appear to be
personally known to Defendant but were randomly selected from the robbery set
up for a vehicle purchase, which indicates a harm to the community at large. The
Defendant is only l8 years of age, which is taken into account by the Court,
however, he was previously adjudicated in juvenile court for residential burglary,
unlawful possession of a stolen motor vehicle, and resisting a peace officer, for
which probation was revoked once but after a resentencing to jail and probation,
Deft did complete successfully in October 2022. The VPRAI[-R] rates Defendant
a moderate risk. While the Court is mindful of Defendant’s youth and notes he is
currently employed, there is no combination of conditions that can mitigate the
threat he poses to the community. He lived at home when he committed this offense
and was inexplicably able to access a firearm to use in this robbery, even though
the law forbids his mere possession of a firearm based on his juvenile history. In
addition, the firearm he used in the commission of this offense is unaccounted for
by the evidence tendered to the Court, so even release back to his mother’s home
- 10 - on the most restrictive conditions does not satisfy the Court that conditions would
be sufficient to keep the community safe.”
¶ 25 Defendant filed his notice of appeal pursuant to [CITATION]
(eff. Dec. 7, 2023) on March 1, 2024, raising three issues with the noted explanations. First,
defendant stated that “[t]he State failed to meet its burden of proving by clear and convincing
evidence that the proof is evident or the presumption great that defendant committed the offense(s)
charged.” Defendant then added, “There is almost no evidence that the Defendant committed the
crime(s) for which he stands accused.” Second, defendant asserted that the State “failed to meet
its burden of proving by clear and convincing evidence that defendant poses a real and present
threat to the safety of any person or persons or the community, based on the specific, articulable
[SEGMENT 26]
facts of the case.” Defendant further explained, “This Defendant had a job, is a high school
graduate, and [has] a scant criminal record. He is and was always willing to be placed on electronic
monitor[ing].”
¶ 26 Finally, defendant stated that the State had “failed to meet its burden of proving by
clear and convincing evidence that no condition or combination of conditions can mitigate the real
and present threat to the safety of any person or persons or the community, based on the specific,
articulable facts of the case, or defendant’s willful flight.” For this ground, he provided no further
explanation. This latter issue, however, was addressed in defendant’s memorandum filed with this
court pursuant to [CITATION].
¶ 27 This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 Section 110-6.1(e) of the Code provides that all criminal defendants are presumed
eligible for pretrial release. 725 ILCS 5/110-6.1(e) (West 2022). A defendant may be denied
- 11 - release only if, upon verified petition, the State proves by clear and convincing evidence at a
detention hearing that (1) the proof is evident or the presumption great the defendant committed a
detainable offense, (2) the defendant poses a threat to the safety of the community or any person
in the community, and (3) no combination of conditions can mitigate the threat to the safety of the
community. Id. §§ 110-6.1(a), (e)(1)-(3).
¶ 30 We review a circuit court’s decision to detain a defendant under an abuse of
discretion standard of review. [CITATION], ¶ 35. “ ‘An abuse of
discretion occurs when the circuit court’s decision is “arbitrary, fanciful or unreasonable,” or
where “no reasonable person would agree with the position adopted by the [circuit] court.” ’ ”
[CITATION], ¶ 10 (quoting [CITATION], ¶ 9, quoting [CITATION], 239 Ill. 2d 215, 234 (2010)). On this point, we briefly note
that defendant has challenged our application of the abuse of discretion standard and advocated
for a de novo review, relying on the special concurrence in [CITATION], ¶¶ 98-100 (Ellis, J., specially concurring). However, we decline defendant’s invitation
and continue to adhere to the analysis set forth in our recent decision in Morgan.
¶ 31 A. Commission of the Offense
¶ 32 Defendant first contends the State failed to meet its burden of proving by clear and
convincing evidence that the proof was evident or the presumption great that he committed the
offense charged. In his notice of appeal, defendant elaborated that there was “almost no” evidence
that he committed the crime. However, he did not address this contention in his supporting
memorandum. Since defendant complied with the minimum requirements of Illinois Supreme
Court Rule 604(h)(2) (eff. Dec. 7, 2023), we will address this point on appeal.
- 12 -
====== End of Document ====== ¶ 33 We note that there was significant evidence presented at the detention hearing
concerning whether defendant had committed the charged offense. Specifically, two individuals
who also participated in the alleged crime identified defendant as being present and a participant.
One of these individuals was defendant’s older brother. Branscumb said that defendant exited the
SUV during the robbery armed with a handgun. A home security video also showed defendant and
two others who were involved in the alleged act returning to defendant’s brother’s home shortly
after the alleged robbery took place. The circuit court found this evidence convincing and
concluded that the State had satisfied its burden of proving through clear and convincing evidence
that the proof was evident or the presumption great that defendant committed the offense charged.
We find no abuse of discretion.
¶ 34 B. Real and Present Threat
¶ 35 Second, defendant argues the State likewise failed to prove by clear and convincing
evidence that he posed a real and present threat to the safety of any person or persons or the
community, based on the specific, articulable facts of the case. In his notice of appeal, he explained
that he “had a job” and “is a high school graduate,” and further that he had “a scant criminal
record.” He further stated that he “is and was always willing to be placed on electronic
monitor[ing].” Here, the court considered all the arguments and evidence and, based on its review,
found that defendant constituted a threat to the community.
¶ 36 According to the circuit court, the history and characteristics of defendant presented
a risk to the community. The court had earlier noted defendant’s juvenile record, which included
charges of residential burglary and unlawful possession of a stolen vehicle. Although noting that
defendant had not targeted a specific person for the crime charged, the court stated, “it doesn’t
matter who that person was. It could be anyone in the community. If they have something that you
- 13 - or your co-conspirators found of value, that you used a firearm and threat of force to take that from
them against the laws of our state.” Moreover, the court stated, “The victims did not appear to be
personally known to Defendant but were randomly selected from the robbery set up for a vehicle
purchase, which indicates a harm to the community at large.” For these reasons, the court
concluded defendant constituted a threat to the community. We find no abuse of discretion.
¶ 37 C. Conditions Mitigating Clear and Present Risk
¶ 38 Third, defendant contends that the State failed to meet its burden of proving by
clear and convincing evidence that no condition or combination of conditions could mitigate the
real and present threat presented or his willful flight. Although defendant offered no explanation
on this issue in his notice of appeal, he did file a Rule 604(h)(2) memorandum with this court
addressing the issue.
¶ 39 The circuit court addressed each of defendant’s contentions as to potential
conditions that might mitigate any threat he posed to the community. Concerning defendant’s
suggestion that he reside with his mother upon release, the court stated,
“you were working and living with your mother at the time that you managed to
have access to firearms—you and your co-conspirators—and so I don’t know that
releasing you back to your mother’s house is going to give me any confidence that
you couldn’t go do the same thing.”
Concerning the potential use of monitoring, the court stated:
“An ankle monitor doesn’t prevent you from going to wherever one goes at
years old and unlawfully finds themselves in possession of a firearm to use in
an armed robbery. So, knowing where you are at any given time wouldn’t prevent
the type of harm that is contemplated here.”
- 14 - The court’s comments concerning the specific usefulness of electronic monitoring echo those we
made in [CITATION], ¶ 26.
¶ 40 In its conclusion on the issue of conditions, the circuit court stated that it had
considered “the nature and the circumstances of this offense,” and that the “most restrictive”
condition the court could impose did not give it “confidence that [defendant] would not present a
real and present threat to the safety of any person or persons or the community based on the very
serious allegations here.” As the record shows, the court considered the arguments presented and
rejected them, deciding that none of the proffered conditions mitigated the threat posed. We find
no abuse of discretion.
¶ 41 Additionally, we note that on the issue of whether any conditions could mitigate
the threat, defendant cites [CITATION], ¶ 17, for the proposition that
the State was required to proffer more than just the nature of the offense charged in support of its
claim that defendant was a threat and that no conditions could mitigate that threat. As we recently
stated in [CITATION], ¶ 38:
“We decline to accept any reading of [CITATION] and its progeny that would
conclusively prohibit a court, under the right circumstances, from relying solely on
the nature of the charges to conclude that conditions of release would be inadequate
to mitigate the threat posed by a defendant. For our purposes, however, we conclude
that the circuit court’s thoughtful and thorough considerations of the effectiveness
of conditions of release is sufficient to distinguish this case from [CITATION] ***.”
¶ 42 The same distinction holds true here. The circuit court’s analysis makes clear that
it considered more than simply the nature of the charged offense. Moreover, the court specifically
- 15 - addressed each of defendant’s arguments as to potential conditions that might warrant his release,
i.e., release to his mother’s custody and release with monitoring.
¶ 43 III. CONCLUSION
¶ 44 For the reasons stated, we affirm the circuit court’s denial of pretrial release.
¶ 45 Affirmed.
- 16 -
2024 IL App (1st) 24-0550-U
Order filed: May 16, 2024
FIRST DISTRICT
FOURTH DIVISION
No. 1-24-0550B
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 24600068601
)
ORONDE HARDY, ) Honorable
) Ruth Gudino,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
[SEGMENT 27]
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justice Hoffman concurred in the judgment.
Justice Ocasio specially concurred.
ORDER
¶1 Held: We affirm the circuit court’s order that defendant should be detained pretrial over
his argument that the State did not establish by clear and convincing evidence that
no condition or combination of conditions would mitigate the threat to safety which
he posed.
¶2 Defendant, Oronde Hardy, appeals from an order granting the State’s petition to deny his
pretrial release pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/110-1 et seq. (West 2022)), as amended by Public Act 101-652 (eff. Jan. 1, 2023),
commonly known as the Pretrial Fairness Act (Act).1 On appeal, defendant argues that the circuit
While commonly known by these names, neither the Illinois Compiled Statutes nor the forgoing
public act refer to the Act as the “Safety, Accountability, Fairness and Equity-Today” Act, i.e., SAFE-T No. 1-24-0550B
court erred in its determination that no condition or combination of conditions could mitigate the
real and present threat to the safety of any person or persons or the community, based on the
specific, articulable facts of the case, or defendant’s willful flight. For the following reasons, we
affirm.
¶3 Defendant was arrested on February 26, 2024 and charged, by felony complaints, with first
degree murder and attempted first degree murder. The complaints alleged that defendant
committed the offense of first degree murder when he “without lawful justification, stabbed D.S.
with a knife, knowing said act would cause the death of D.S. thereby causing the death of D.S.”
and the offense of attempt first degree murder when he “without lawful justification, stabbed V.S.
with a knife, knowing said act would cause death or great bodily harm to V.S., thereby causing
great bodily harm to V.S.”
¶4 On February 29, 2024, the State filed a verified petition to deny defendant pretrial release,
pursuant to sections 5/110-2, and 6.1(a)(1.5) of the Code. 725 ILCS 5/110-2, 6.1(a)(1.5) (West
2022). Therein, the State generally alleged that the defendant is charged with a detainable
offense—first degree murder—and that defendant's pretrial release posed a real and present threat
to the safety of any person or persons or the community, based on the specific articulable facts of
the case, and that no less restrictive conditions would avoid that threat.2
¶5 The circuit court held a hearing on the State’s petition on March 1, 2024.
Act, or the “Pretrial Fairness Act.” See [CITATION], ¶ 4 n. 1. Certain provisions of the
legislation in question were amended by Pub. Act 102-1104 (eff. Jan. 1, 2023). See [CITATION], ¶ 4. The supreme court initially stayed the implementation of this legislation but vacated that stay
effective September 18, 2023. Id. ¶ 52.
As to the specific facts of the incident, the State directed to “SEE ATTACHED ADDENDUM.”
The record on appeal does not contain an addendum.
No. 1-24-0550B
¶6 The State proffered that on February 26, 2024 around 3:52 p.m. at a public park located at
east 15th Street and Hanover in Chicago Heights, Cook County, Illinois, the victims, D.S., a 13-
year-old male, and his brother, V.S., 15 years old, (collectively, victims) were at the park with
their siblings, Witness 1, a 21 year-old female; Witness 2, a 12-year-old male; and Witness 3, an
8 year-old male. Defendant, 53 years old, was also at the park with his wife and three minor
children. The victims were on a swing set and Witnesses 1, 2, and 3 were under a covered pavilion.
Witness 1 observed defendant staring at the victims and called the victims over to her. As the
victims walked toward the pavilion, defendant followed.
¶7 Witness 1 verbally confronted defendant about staring at the victims and “mean mugging”
her and her brothers. Defendant responded by stating that he would “kick their a**” and called
Witness 1 a “fat b***.” Thereafter, the victims engaged in a verbal argument with defendant.
Witness 1 put her hands in front of the victims to pull them back from advancing toward defendant.
Witness 1 looked at the individual who she believed was defendant’s wife to ask for help.
¶8 Defendant struck Witness 1 in her left shoulder area. D.S. and then V.S. punched defendant
in the face. Defendant pulled out a switchblade knife from his pocket and stabbed D.S. once in the
upper left arm. D.S. punched defendant with his right arm. V.S. struck defendant, knocking
defendant to the ground, and then got on top of defendant. Defendant stabbed V.S. at least once in
the back. V.S. stood up and attempted to run away from defendant. Defendant chased V.S. with
the knife in hand, which was captured on a Ring camera from across the street.
¶9 Thereafter, “[d]efendant catches up to [D.S.], and defendant is holding [V.S.] down when
Witness 1 approaches and takes out a box cutter and runs up to the defendant and stabs the
defendant in the back repeatedly to get the defendant off of [V.S.].” Defendant got off of V.S. and
Here is the processed court ruling with court ruling citations removed and replaced as instructed:
No. 1-24-0550B
walked toward his vehicle with his wife and three children. They drove off and left the park without
rendering any type of aid.
¶ 10 Police officers and emergency medical services (EMS) arrived at the park. D.S. was found
rolling around on the ground and was generally unresponsive to questions from officers and EMS.
The victims were transported to the hospital by EMS. D.S. died as a result of the injuries; the stab
wound struck an artery in his shoulder. An autopsy ruled a single stab wound as the cause of death,
and the manner homicide. V.S. was treated for a stab wound to the back and released.
¶ 11 Witness 4, unrelated to the individuals involved, observed the altercation from inside of a
car at the park. She took a picture of defendant’s car and license plate as he left the park, which
she provided to responding officers. Witness 5, also unrelated, lived in a home across the street
from the park and observed the altercation. Witness 5 gave a description of defendant and his
vehicle to responding officers. Witnesses 4 and 5 described defendant as the aggressor and that he
stabbed the minors.
¶ 12 That same day, officers located defendant at a motel in Monee, Illinois and placed him into
custody. After the officers gave defendant Miranda warnings, defendant made statements in which
he claimed he was acting in self-defense, but also admitted that he referred to Witness 1 as a “fat
b***.” Detectives executed a search warrant on the motel room and recovered a folding
pocketknife from the bathtub that appeared to have blood on it. Detectives also found what
appeared to be blood in the bathtub as if someone was attempting to clean the knife.
¶ 13 Witness 1 and V.S. positively identified defendant in a photo array as the individual who
stabbed her brothers. V.S. also positively identified a picture of the knife recovered from
defendant’s motel room. Witnesses 2 and 3 also made statements corroborating that defendant was
the aggressor.
====== End of Processed Court Ruling ====== No. 1-24-0550B
¶ 14 As to defendant’s criminal background, the State proffered that, at the time of the
altercation, defendant was on probation for aggravated fleeing and eluding. In 2007, defendant
was convicted of forgery and sentenced to four years’ imprisonment. In 2004, defendant was
convicted of armed robbery without a firearm and sentenced to eight years’ imprisonment. In 2001,
defendant was convicted of witness intimidation and sentenced to two years’ imprisonment.
¶ 15 The State argued that defendant was a danger to members of the community, including
V.S. and the surviving witnesses. Defendant is a convicted felon for the violent offense of armed
robbery and for intimidating a witness. The State also argued that there are no condition or
combination of conditions that would mitigate the risk that defendant poses in that “[l]east
restrictive conditions or combination thereof amount to nothing more than admonishments or
attaching bracelets to the defendant’s ankle, which he can remove without any repercussion.”
Further, defendant committed these acts while on probation after being admonished not to commit
any additional offenses.
¶ 16 Tiffany Johnson, an individual from pretrial services spoke as to defendant’s pretrial safety
assessment (PSA): “New violent criminal activity flag, yes. New Criminal Activity Scale 4. Failure
to Appear Scale 3. The PSA coincides with supervision Level 3.” Johnson answered in the
[SEGMENT 28]
affirmative to the court’s question: “And that would be maximum conditions, correct?”. Johnson
explained that a violent offense flag, means that defendant has a prior conviction of a violent
offense. The PSA further noted that defendant was currently on probation for aggravated fleeing.
In response to a question by the court, Johnson stated that defendant had a 2013 failure to appear.
¶ 17 Defense counsel began by describing the Ring camera footage, explaining that a
“commotion” was captured, but that it is hard to tell exactly what is happening. Defense counsel
then noted that defendant told the police officers that he was acting in self-defense. He was stabbed
No. 1-24-0550B
in the back by Witness 1 and received treatment for stab wounds to his back and arms and injuries
to his face. Further, defense counsel maintained that the witnesses’ statements vary in the precise
order of events that the State alleged occurred.
¶ 18 As for mitigation, defense counsel proffered that defendant, 50 years old, lived at his
current address for 30 years and is a lifelong resident of Cook County. He has been married for 12
years and lives with his wife, who was eight months pregnant, and his three children, five, six, and
seven years old. He graduated high school, received an associate degree, and has two jobs. He is
an active member of his church.
¶ 19 Defense counsel acknowledged that the court would have concerns over the danger
defendant posed but contended that electronic monitoring would be a condition that could be
imposed. Defendant only had one failure to appear from 2013 for a traffic offense. At the time it
was issued, he was in custody.
¶ 20 The court concluded that the State had shown by clear and convincing evidence that
defendant was charged with the detainable offenses of first degree murder of D.S. and attempted
first degree murder of V.S. and that the proof was evident and the presumption great that defendant
committed those offenses. The court explained that “defendant, while armed with a switchblade,
stabbed [D.S.] in the artery, causing his death by a single stab wound, and stabbed [V.S.] in the
back.”
¶ 21 The circuit court next concluded that defendant posed a real and present threat to the safety
of any person or persons or the community. The court found that defendant poses a threat to V.S.
and the witnesses in this case. In addition to those individuals, the court found that defendant posed
a risk to the park community, the neighborhood community, and the community at large in Chicago
Heights. The circuit court addressed the nature and the circumstances of the offenses charged and
No. 1-24-0550B
emphasized that defendant was the initial aggressor in a crime of violence with a weapon that
occurred in a public park during the day.
¶ 22 In considering defendant’s criminal background, the court compared defendant’s prior
conviction for aggravated fleeing and eluding to this altercation where defendant fled from the
scene, provided no aid to the minors, and was later taken into custody in a motel where a knife
was recovered with blood still on it. The court also addressed defendant’s armed robbery
conviction, noting that it was a forcible felony crime of violence, and his conviction for witness
intimidation, finding that it was evidence of the fact that defendant believes that his conduct can
intimidate and threaten individuals.
¶ 23 Additionally, the court explained that defendant is a “grown man, 50 years old, who chose
to confront a 21-year-old female who had four minor children with her who were enjoying, I
believe, a day in the park on a Monday at approximately 4:00. He chose to confront her and start
an argument that led to a physical altercation. He posed a threat at that time and continued to pose
a threat during the pendency of this incident.” As to self-defense, the court explained that defendant
admitted to calling Witness 1 a “fat b***,” which the court described as an offensive and
aggressive statement, which he made to a stranger in a public park.
¶ 24 Lastly, the court found that there were no conditions or combination of conditions that
could mitigate the risk that defendant poses. The court discussed the facts of the incident in which
defendant attempted to intimidate the victims by following them and pulling out a switchblade,
leading to defendant stabbing D.S., who later died, and V.S. in the back. The court also noted that
the PSA recommended maximum conditions if defendant were to be released. The court
considered a number of conditions, including, release with mandatory conditions, such as stay-
away/no contact and no access to dangerous weapons, and release on GPS, home curfew, and
No. 1-24-0550B
electronic monitoring. The Court explained that GPS, electronic monitoring, and home curfew
would still permit defendant to have movement and have access to the community where he is a
danger. The court explained that electronic movement is monitored, but defendant is permitted
two days of movement on GPS. The court further explained that movement is monitored with “an
ankle bracelet that monitors with the hopes that the police will respond on time to prevent or
intervene if an incident happens.” The circuit court concluded that based on the facts and
circumstances of this case, it was not willing to take that risk and that detainment was the only
way to mitigate the real and present threat defendant posed to the individuals and community.
¶ 25 The court granted the State’s petition to detain defendant pretrial and entered a written
order reflecting its findings.
¶ 26 Defendant timely appealed. A supporting record and report of proceedings have been filed
with this court. Defendant filed a “Notice in Lieu of Rule 604(h) Memorandum,” informing this
court of his intention to “stand on the notice of appeal.” His notice also addresses portions of the
record and cites [CITATION], in support his position. The State filed a memorandum under Illinois Supreme Court Rule 604(h) (eff. Oct. 19, 2023).
¶ 27 Pretrial release is governed by article 110 of the Code (725 ILCS 5/110 (West 2022)), as
amended by the Act. Under the Code, the requirement of posting monetary bail has been abolished
in Illinois as of September 18, 2023. See 725 ILCS 5/110-1.5 (West 2022); [CITATION],
¶ 52. Now, “[a]ll persons charged with an offense shall be eligible for pretrial release before
conviction. It is presumed that a defendant is entitled to release on personal recognizance on the
condition that the defendant attend all required court proceedings and the defendant does not
commit any criminal offense, and complies with all terms of pretrial release.” 725 ILCS 5/110-
2(a) (West 2022).
No. 1-24-0550B
¶ 28 Pretrial release may only be denied in certain specific situations. 725 ILCS 5/110-6.1 (West
2022). Where—as is the case here—a defendant is charged with attempting to commit a forcible
felony, and after filing a timely verified petition requesting denial of pretrial release, the State has
the burden to prove by clear and convincing evidence that: (1) the proof is evident or the
presumption great that the defendant has committed a qualifying offense, (2) the defendant’s
pretrial release poses a real and present threat to the safety of any person or the community, and
(3) less restrictive conditions would not avoid a real and present threat to the safety of any person
or the community and/or prevent the defendant’s willful flight from prosecution. 725 ILCS 5/110-
2(a), 110-6.1 West 2022). “Clear and convincing evidence is “the quantum of proof that leaves no
reasonable doubt in the mind of the fact finder about the truth of the proposition in question.” [CITATION].
¶ 29 Appeals of bail orders under Illinois Supreme Court Rule 604(c)(1) (eff. Sept. 18, 2023)
have historically been reviewed using an abuse of discretion standard. [CITATION]. While Illinois
Supreme Court Rule 604(h) (eff. Sept. 18, 2023) provides a new procedure for these types of
appeals considering the changes made to the Code by the Act, “the Act neither mandates nor
suggests a different standard of review.” [CITATION]. There is some
debate among the appellate districts concerning the appropriate standard of review with respect to
appeals under Rule 604(h). See [CITATION] (observing
split between districts regarding abuse of discretion and manifest weight of the evidence standard
under the Act); [CITATION] (discussing manifest
weight of the evidence, abuse of discretion, and de novo standards of review and concluding abuse
of discretion is the proper standard). While we would affirm under any of these standards, we
No. 1-24-0550B
conclude that a circuit court’s determination as to the first two propositions—whether a defendant
committed a detainable offense and poses a threat—are reviewed under the manifest weight
standard ([CITATION]) and the trial court’s determination that no condition or combination of conditions
can mitigate the real and present threat posed by defendant is reviewed under an abuse of discretion
standard. See [CITATION] (explaining that the circuit court
“must exercise a degree of discretion to determine whether any less restrictive means will mitigate
the threat”); [CITATION] (explaining that the circuit court in coming
[SEGMENT 29]
to its determination is “called upon to weigh and balance a multitude of factors”).
¶ 30 An abuse of discretion occurs where the court’s judgment is fanciful, arbitrary, or
unreasonable, or where no reasonable person would agree with the court’s position. [CITATION]. In conducting this review, we will not substitute the circuit court’s factual
and credibility findings with our own. [CITATION]. “A finding is
against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if
the finding itself is unreasonable, arbitrary, or not based on the evidence presented.” [CITATION].
¶ 31 On appeal, defendant does not challenge the evidence that he has been charged with a
detention-qualifying offense or that the proof is evident or the presumption great that he committed
the offense. Defendant also does not challenge the circuit court’s determination that the State met
its burden of proving by clear and convincing evidence that defendant’s pretrial release posed a
real and present threat to the safety of any person or persons or the community. Rather, defendant
argues that the court erred in its determination that no condition or combination of conditions could
- 10 - No. 1-24-0550B
mitigate the real and present threat to the safety of any person or persons or the community, based
on the specific, articulable facts of the case, or defendant’s willful flight.
¶ 32 Section 110-5 of the Code outlines the factors trial courts should consider in determining
conditions of pretrial release. [CITATION]. These factors include the nature and
circumstances of the offense charged, the weight of the evidence against the defendant, and the
history and characteristics of the defendant, including whether defendant was on probation at the
time of the arrest. Id. 110-5(a)(1)-(3) (West 2022).
¶ 33 Here, the State proffered that defendant was charged with first degree murder and
attempted first degree murder after defendant, in the afternoon, at a Chicago Heights public park,
stabbed D.S., a 13 year-old-male, in the shoulder causing his death, and V.S., a 15 year-old-male,
in the back. Although defendant suffered injuries, including stab wounds, multiple witnesses
identified defendant, 50 years old, as the initial aggressor. Defendant followed the victims from
the swing set to the covered pavilion and called their sister a “fat b***.” After a verbal altercation
with the minors, the defendant pulled out a knife and the interaction became violent. After stabbing
the minors, instead of offering assistance to D.S., who was rolling around on the ground, or V.S.
who had also been stabbed in the back, defendant fled the park with his wife and children. Later
that day, defendant was found at a motel in Monee where a knife with blood on it was recovered.
At the time of this incident, defendant was on probation and had previous convictions of armed
robbery, a forcible felony, and witness intimidation. The State argued that no admonishments or
electronic monitoring would mitigate the risk that defendant posed to the surviving victim,
witnesses, and the community as a whole.
¶ 34 In making its determination, the court discussed the facts of the incident highlighting the
defendant’s intimidating actions toward the victims and noted that the PSA recommended
- 11 - No. 1-24-0550B
maximum conditions if defendant were to be released. The court considered GPS, electronic
monitoring, and home curfew, but found that those conditions would still allow defendant
movement, which would not prevent him from committing similar crimes to individuals in the
community or accessing the surviving victim or witnesses.
¶ 35 The record reflects that the circuit court properly considered the statutory factors: the
nature, seriousness, and circumstances of the offense charged. In light of these statutory factors
and the State’s proffered evidence, we cannot find that the circuit court’s determination that the
State proved by clear and convincing evidence that there were no conditions or combination of
conditions of pretrial release that could mitigate the real and present threat posed by defendant,
was arbitrary or unreasonable.
¶ 36 Defendant, citing [CITATION], argues that the State was
required to, but failed to proffer more than just the nature of the offense charged to support a
finding that no conditions could mitigate defendant’s threat. In [CITATION], the defendant was charged
with aggravated battery after he discharged a gun once inside his bedroom and the bullet went
through the wall of the bathroom and grazed his estranged wife. Id. ¶¶ 4-5. The victim had been at
the home with friends to retrieve belongings. Id. ¶ 5. According to the defense proffer, the
defendant believed the victim had left the home when he fired the weapon and the victim drove
herself to the hospital for treatment after first going to a bar with friends. Id. ¶ 6. The State relied
on its proffer as to the basic elements of the offense to support its argument that defendant should
be detained. Id. ¶¶ 5, 17. The circuit court ordered the detention of the defendant without oral or
written explanation as to its finding that there were no conditions which would mitigate the threat
posed by defendant. Id. ¶ 8.
- 12 - No. 1-24-0550B
¶ 37 On appeal, this court found that the State failed to prove there were no conditions or
combination of conditions that could mitigate the danger posed by defendant where the State
offered no evidence to support that conclusion and failed to discuss any conditions. [CITATION] ¶ 19. The
[CITATION] court reasoned that “[i]f the base allegations that make up the sine qua non of a violent
offense were sufficient on their own to establish this element, then the legislature would have
simply deemed those accused of violent offenses ineligible for release.” [CITATION] ¶ 18.
¶ 38 We find [CITATION] distinguishable. In this case, the State presented evidence, and not just the
basic elements of the offense, that showed why no less restrictive conditions would mitigate
defendant’s risk to the individuals and the community. After proffering evidence that defendant,
the initial aggressor, stabbed D.S. and V.S., both minors, in a public park, the State presented
evidence of defendant’s prior criminal history, which included the fact that defendant was on
probation at the time he committed the instant crime and also had a prior conviction for another
forcible felony, armed robbery. Defendant’s criminal background also included a conviction for
witness intimidation, which is relevant here as there is a surviving victim and multiple witnesses.
The circuit court considered these factors and with explanations, found that defendant, if released
even on maximum conditions, would not be prevented from attempting to intimidate these
witnesses or committing similar violent crimes in public places.
¶ 39 Lastly, defendant contends that the circuit court erred in ordering him detained where the
circuit court erred in its determination that no condition or combination of conditions would
reasonably ensure defendant’s appearance at later hearings. However, the State’s petition did not
rely upon this alternative statutory risk factor, the State made no argument as to this factor at the
hearing, and the circuit court’s written order did not rely upon a finding as to this risk to justify
defendant’s detention. Even if the trial court had relied on the risk of defendant’s willful flight
- 13 - No. 1-24-0550B
from prosecution, we need not address this issue further where the decision to detain defendant
may be affirmed solely based on the risk to a person or persons or the community, as discussed
above. 725 ILCS 5/110-6.1(e)(3) (West 2022) (the State must prove that “no condition or
combination of conditions *** can mitigate (i) the real and present threat to the safety of any
person or persons or the community ***, or (ii) the defendant’s willful flight” (emphasis added)).
¶ 40 In summary, we find that the circuit court did not abuse its discretion in finding that the
State proved by clear and convincing evidence that there are no conditions or combination of
conditions which would mitigate the threat to the safety of the victim and the community and in
ordering the pretrial detention of defendant.
¶ 41 For the foregoing reasons, we affirm the order of the circuit court detaining defendant and
remanding him to the custody of the Cook County sheriff pending trial.
¶ 42 Affirmed.
¶ 43 JUSTICE OCASIO, specially concurring:
¶ 44 I join in the decision of the court. I write separately only to express my conviction that the
standard of review should be de novo. See [CITATION].
- 14 -
NOTICE
IL App (4th) 240372-U FILED
This Order was filed under May 6, 2024
Supreme Court Rule 23 and is NO. 4-24-0372 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed Court, IL
IN THE APPELLATE COURT
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
JAMES E. PHILLIPS, ) No. 24CF97
Defendant-Appellant. )
) Honorable
) Robert K. Adrian,
) Judge Presiding.
[SEGMENT 30]
JUSTICE KNECHT delivered the judgment of the court.
Justice Steigmann and Justice Vancil concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in denying defendant pretrial release.
¶2 Defendant, James E. Phillips, appeals the trial court’s order denying him pretrial
release under section 110-6.1(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/110-6.1(a) (West 2022)), hereinafter as amended by Public Acts 101-652, § 10-255 and
102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act. We affirm.
¶3 I. BACKGROUND
¶4 On February 8, 2024, the State charged defendant with three counts of possession
of child pornography (720 ILCS 5/11-20.1(a)(6) (West 2022)). According to the information,
defendant was charged for the possession of three different videos, each involving a female child
under the age of 13.
¶5 The same day, the State filed a verified petition to deny defendant pretrial release under section 110-6.1(a) of the Code (725 ILCS 5/110-6.1(a) (West 2022)). The State alleged
defendant’s pretrial release poses a real and present threat to the safety of any person or persons
or the community and no condition or combination of conditions can mitigate that threat.
¶6 An arrest report and a pretrial services report were filed with the State’s petition.
The arrest report was authored by James Brown, a law-enforcement officer with the Quincy
Police Department. According to Officer Brown, he received the case after Google flagged an
account and reported a user for possession of possible child pornography on August 25, 2023.
The account subscriber’s information matched defendant’s name and date of birth, and the
“frequently used IP address” was issued to defendant’s address. The number for the cell phone
found on defendant at the time of the arrest matched the number on the account reported by
Google. Search warrants for defendant’s Google and Yahoo accounts revealed a majority of
personal photos belonging to defendant. Google’s search also returned “17 child exploitive
videos that were associated and trigg[er]ed the cybertips.” The videos “featured minor females in
various states of undress engaged in masturbatory activity or engaged in sexual actives [sic] with
an unknown adult.” The report describes three of the videos, the ones for which charges were
brought.
¶7 Officer Brown reported, upon placing defendant on arrest for child pornography,
defendant and his wife “started stating his account was hacked.” Officer Brown reported the
living conditions of the residence were “some of the worse [sic] that I have seen.” The Illinois
Department of Children and Family Services (DCFS) responded and took protective custody of
the children. In addition to the living conditions, “there were several locations [with] cannabis
paraphernalia, cannabis, and cannabis wax,” and these locations “were unsecured from the
children.” A DCFS agent at the scene advised defendant had “been previously ‘indicated’ by
DCFS for sexual molestation of a previous [stepdaughter].” Officer Brown reported defendant
had an arrest in Virginia on January 22, 1994, for felony aggravated sexual battery and felony
rape but was found not guilty.
¶8 According to the pretrial services report, defendant was married and living with
his wife and three children, who were 21, 17, and 16. They had resided at the same address for
15 years. Defendant worked at Papa Johns for six months, earning $15 an hour, for 25 hours per
week.
¶9 Defendant had a criminal history, largely comprised of traffic offenses, for which
defendant paid fines. However, in March 2004, defendant was convicted of resisting a peace
officer. He was sentenced to 12 months’ conditional discharge, which terminated successfully. In
July 2018, defendant was charged with operating an uninsured motor vehicle and sentenced to
six months’ supervision, which was terminated successfully. On January 22, 1994, defendant
was charged with sexual battery, a misdemeanor, for which he was found guilty in June 1994.
¶ 10 The author of the pretrial services report used the Revised Virginia Pretrial Risk
Assessment Instrument to estimate a 96% probability no new offenses would occur during the
pendency of the case. The author concluded, “Pretrial Supervision would not be beneficial
because the defendant is low risk.”
¶ 11 Also that day, a detention hearing was held. Neither side proffered any additional
evidence. Defense counsel argued, “I suspect that those children have been removed from the
home based on what was described here that DCFS has followed up and removed those children
from the home so even if [defendant] were released, he would not have any contact with those
children.” Counsel argued conditions could be put in place to keep defendant from being on the
Internet. Counsel further suggested defendant could be tracked using global-positioning
technology.
¶ 12 At the close of the hearing, the trial court ruled as follows:
“First of all, the Court would find by clear and convincing
evidence that that the defendant is a risk to persons or the
community based on the nature of this charge, the evidence that
they were separate videos found on his Google account depicting
minors. The Court recognizes he does—has limited criminal
history. However, the limited criminal history that he has is a—
concerns a sexual battery and the Court recognizes it was 30 years
ago but the Court can still consider that in making its findings.
The Court would find probable cause for these offenses so
the defendant would not be entitled to a preliminary hearing or
would need to be indicted. The Court would detain then
[defendant].”
¶ 13 Using a preprinted form, the trial court entered a written order finding the State
proved the dangerousness standard by clear and convincing evidence. On the lines provided for
the reasons “why less restrictive conditions cannot mitigate the real and present threat,” the court
checked boxes next to “Nature and circumstances of the offense(s) charged” and “Defendant’s
prior criminal history is indicative of violent, abusive, or assaultive behavior.”
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 On February 22, 2024, defendant filed a notice of appeal challenging the order
denying him pretrial release under Illinois Supreme Court Rule 604(h) (eff. Dec. 7, 2023).
Defendant’s notice of appeal is a completed form from the Article VI Forms Appendix to the
Illinois Supreme Court Rules (see [CITATION]), by which he asks this
court to overturn the trial court’s order denying him pretrial release and permit him to be released
with an imposition of conditions. The form lists several possible grounds for appellate relief and
directs appellants to “check all that apply and describe in detail.” Defendant checked two
grounds for relief and provided no additional detail on the lines below. Defendant filed a
supporting memorandum.
¶ 17 The first ground for relief is the State failed to meet its burden of proving by clear
and convincing evidence defendant poses a real and present threat to the safety of a person or
persons or the community. In his memorandum, defendant argues the State provided no specific
facts in its verified petition and, at the detention hearing, “presented little to no evidence that
[defendant] was a ‘real and present threat’ beyond” the “generalized threat inherent in the charge
itself.”
¶ 18 All criminal defendants are presumed eligible for pretrial release. [CITATION]. Before the State may overcome that presumption and secure pretrial
detention of a criminal defendant under section 110-6.1(e), the State must prove multiple
elements. One is to prove by clear and convincing evidence “the defendant poses a real and
present threat to the safety of any person or persons or the community, based on the specific
articulable facts of the case.” See id. §§ 110-6.1(a)(1.5), (e)(2). The Code gives the trial court
broad discretion in choosing what factors to consider in making this determination. See id.
§ 110-6.1(g) (setting forth factors a trial court may consider when considering dangerousness).
These factors include the nature and circumstances of the offense charged (id. § 110-6.1(g)(1))
and defendant’s history and characteristics, including whether there is evidence of violent,
abusive, or assaultive behavior (id. § 110-6.1(g)(2)(A)).
¶ 19 Since the Code became effective, this court has applied the abuse-of-discretion
standard of review to decisions on pretrial release. See [CITATION]. Defendant asks this court, however, to reverse course and apply the manifest-
weight-of-the-evidence standard of review. Recently, this court revisited the standard of review
and addressed this very question in [CITATION]. Ultimately, we decided to “continue to abide by our prior holdings that a trial court’s decision
and findings on issues of pretrial detention are appropriately reviewed under the abuse of
discretion standard.” Id. ¶ 35. We will do so here. An abuse of discretion will be found only if
we find the decision of the trial court to be unreasonable, arbitrary, or fanciful or we find no
[SEGMENT 31]
reasonable person would agree with the trial court’s decision. [CITATION]
¶ 20 Returning to the issue of whether defendant’s release poses a threat, we find no
abuse of discretion. The trial court indicated it considered the nature and circumstances of the
offenses as part of the reasons for its decisions. The nature and circumstances surrounding the
offenses indicate the videos referenced in the State’s charging instrument were just 3 among 17
videos of child pornography. The videos were found in a house in which minors resided, and in a
house where adult items, cannabis and cannabis paraphernalia, were unsecured from the
children. While defense counsel argues he believed the children were removed, there is no
indication removal of the children has occurred. While the only sex offense defendant was
convicted of occurred 30 years before, the court gave some weight to that offense. That decision,
and the conclusion defendant is a threat, is not unreasonable, fanciful, or arbitrary and not one
with which no reasonable person would agree. See id.
¶ 21 For his second ground for relief, defendant argues the State failed to meet its
burden of proving by clear and convincing evidence that no condition or combination of
conditions can mitigate his real and present threat. In his memorandum, defendant emphasizes
the State failed “to argue, much less present clear and convincing evidence, that no condition of
release could mitigate any potential threat.” Defendant maintains the State has, therefore,
forfeited this argument.
¶ 22 Before pretrial release may be denied under the dangerousness standard,
subsection (e)(3)(i) of the Code requires the State prove “no condition or combination of
conditions set forth in subsection (b) of Section 110-10 of this Article can mitigate *** the real
and present threat to the safety of any person or persons or the community, based on the specific
articulable facts of the case.” [CITATION]. In its detention order, the
trial court must “make a written finding summarizing the court’s reasons for concluding that the
defendant should be denied pretrial release, including why less restrictive conditions would not
avoid a real and present threat *** based on the specific articulable facts of the case.” Id. § 110-
6.1(h)(1).
¶ 23 We are not convinced the State has forfeited its argument. We note defendant
cites no authority for this contention. Even if he had, the record shows the State asserted, in its
verified petition, this very claim. Moreover, proof of the dangerousness standard does not require
the State to argue the no-conditions element is satisfied; the State must prove the no-conditions
element “by clear and convincing evidence.” [CITATION].
¶ 24 Here, we find the trial court did not abuse its discretion in finding the State proved
this element by clear and convincing evidence. First, the State had to prove the proof is evident
or the presumption great defendant committed the charged offenses (see id. § 110-6.1(e)(1)), and
defendant did not challenge that finding on appeal. For purposes of this appeal, we view the
proffered evidence with the presumption defendant possessed the three videos of child
pornography. In addition to those 3 videos, defendant’s account contained 14 other pornographic
videos of young girls either masturbating or engaging in sexual acts with adults. These videos
were found on a computer in a house where defendant resided with a 16-year-old and a 17-year-
old. While defense counsel suggested at the detention hearing these children had been removed
from the home, which would allow defendant to be returned home, there was no proffer
supporting that conclusion. Indeed, we cannot make that inference given the children’s ages and
the fact defendant had himself been removed from the home and arrested. DCFS may have
concluded the older teens could remain at home with their mother. While defendant’s
30-year-old arrest for sexual battery is remote, it is a sexual offense that bears some relevancy to
defendant’s current charges. The State’s proffers show it was not an abuse of discretion to
conclude the evidence clearly and convincingly establishes defendant could not safely be
returned home. The court’s decision this element is proved is not “arbitrary, fanciful or
unreasonable.” (Internal quotation marks omitted.) See [CITATION].
¶ 25 Defendant’s case law supporting his claim is distinguishable. The defendant in
[CITATION], ¶ 4, faced the same charges as defendant. In that
case, however, there is no evidence the defendant resided with minors in a home where the
defendant would return if not detained. See id. ¶¶ 5-8.
¶ 26 III. CONCLUSION
¶ 27 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 28 Affirmed.
NOTICE
IL App (4th) 240270-U
This Order was filed under
FILED
Supreme Court Rule 23 and is May 2, 2024
NO. 4-24-0270
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
LAWRENCE DUSHON JOHNSON, ) No. 24CF59
Defendant-Appellant. )
) Honorable
) J. Jason Chambers,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Presiding Justice Cavanagh and Justice Steigmann concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in denying defendant pretrial release.
¶2 Defendant, Lawrence Dushon Johnson, appeals the trial court’s order denying him
pretrial release under sections 110-6.1(a)(1) and 110-6.1(a)(6) of the Code of Criminal Procedure
of 1963 (Code) (725 ILCS 5/110-6.1(a)(1), (6) (West 2022)), hereinafter as amended by Public
Acts 101-652, § 10-255 and 102-1104, § 70 (eff. Jan. 1, 2023), commonly known as the Pretrial
Fairness Act. We affirm.
¶3 I. BACKGROUND
¶4 On January 17, 2024, the State charged defendant with three offenses based on
events occurring on August 6, 2023: unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a)
(West 2022)), two counts of aggravated unlawful use of a weapon (id. § 24-1.6(a)(2)), reckless
discharge of a firearm (id. § 24-1.5(a)), and violation of the Firearm Owners Identification (FOID) Card Act (430 ILCS 65/2(a)(1) (West 2022)).
¶5 On January 24, 2024, the State filed a verified petition to deny defendant pretrial
release under sections 110-6.1(a)(1) and 110-6.1(a)(6) of the Code (725 ILCS 5/110-6.1(a)(1),
(6) (West 2022)). The State alleged defendant’s pretrial release poses a real and present threat to
the safety of any person or persons or the community.
¶6 That same day, a hearing was held on the State’s petition. At the hearing, the State
read a probable-cause statement. According to the statement, around 3:30 a.m. on August 6,
2023, Normal Police Department officers responded to gunfire on Lindell Drive. A large group
of people congregated for an outdoor block party. Multiple shooters were reported. Eight nearby
vehicles and three apartments were struck by bullets. Two individuals suffered gunshot wounds.
One was shot in the thigh. The other’s head was grazed by a bullet. On August 9, 2023, an
employee of Enterprise Rent-A-Car reported a Ford Escape, rented by Donald Wheatley, was
returned with bullet-hole damage. Wheatley reported he rented the vehicle for a friend, Kelsey
Voehgtly. We note Kelsey’s last name appears in the record as “Voehgtly” and “Voeghtly”. For
this disposition, we will use “Voehgtly”, as that is how the State spelled her name at the
detention hearing. On August 24, 2023, police talked to Voehgtly, who reported she was
intoxicated that night and did not remember much. She recalled going with defendant,
defendant’s girlfriend Caravina Jones, and Iyeshia Anderson to bars and then to a block party.
¶7 The State further reported the GPS for the rented Escape revealed the Escape
went to Voehgtly’s residence and then to defendant and Jones’s residence on North Golfcrest
Road. The Escape next went to Pub II in Normal, Illinois, around midnight, and then to Huck’s
and Cadillac Jack’s. Videos show defendant, Anderson, Jones, Voehgtly, and Ayesha Yacub
walking from the rented Escape into Pub II and then, around 12:30 a.m., into Cadillac Jack’s.
[SEGMENT 32]
The videos further show the Escape at North Golfcrest at 2 a.m. and at Lindell Drive just before
3:30 a.m., the time of the shootings. Shortly after 3:30 a.m., the Escape returned to defendant’s
residence.
¶8 According to the State, two anonymous callers identified defendant as a shooter.
One identified defendant as the first to fire shots. Several video cameras captured images of the
shooting. Around 3:30 a.m., defendant exited a car and walked west on Lindell Drive. Around
that time, several men with guns exited a Dodge on Lindell Drive. Gunshots were heard.
¶9 On October 26, 2023, defendant admitted to police he was with Jones and Yacub
on August 6. He confirmed they went to Cadillac Jack’s and he was on Lindell Drive when the
shooting occurred. Defendant reported at least 10 shooters. Defendant denied being one of them.
¶ 10 On November 9, 2023, Yacub informed police she was with defendant, Jones, and
Voehgtly on August 6, 2023. They went to Eric Too’s but left after an altercation. Defendant
learned people with whom he had an altercation at Eric Too’s were at a party on Lindell Drive.
Defendant told Yacub he was getting his gun and going to Lindell Drive. Yacub reported at least
400 people were outside. Yacub exited the vehicle first. Defendant exited with his gun. Yacub
watched defendant fire his gun, which she described as “large” and equipped with a light.
Defendant emptied the clip and returned to the car. The State asserted defendant was ineligible
for a FOID card due to his conviction for mob action in [CITATION].
¶ 11 The State reported defendant had a criminal history, which included the
following: misdemeanor theft in 2004, misdemeanor attempted resisting a peace officer in 2006,
driving without a valid license in 2007, driving on a suspended license in 2015, driving with a
revoked license in 2023 ([CITATION]), a Class 4 felony conviction in
2007 for resisting a peace officer, a Class 3 felony conviction in 2008 for aggravated battery, a
federal conviction in 2010 for cocaine possession, a Class 4 felony conviction in 2016 for a mob-
action offense, misdemeanor domestic battery in 2018, fleeing or attempting to elude a peace
officer in 2019, and a misdemeanor in 2018 for driving under the influence. At the time
defendant allegedly committed the charged offenses, he was on pretrial release for McLean
County case No. 23-CF-967, aggravated fleeing or attempting to elude a peace officer and
driving while license suspended.
¶ 12 In response, defense counsel proffered defendant was 35 years old and a resident
of McLean County for over 20 years. Defendant was employed full-time at Rivian and provided
for his mother and his seven children, five of whom resided with him. Defendant had medical
issues, including insomnia and grief. Ten of his family members had died in a span of two years.
Defense counsel reported defendant successfully completed the sentences imposed for his
offenses, including court supervision in multiple cases, prison sentences, and probation. Defense
counsel highlighted he was not on conditional discharge for the 2023 driving-while-license-
revoked conviction when the alleged offenses were committed in August 2023. Counsel
proffered the conditional discharge for that case began on September 14, 2023. Defendant had no
instances of failing to appear in two years.
¶ 13 In argument, defense counsel emphasized the State overlooked police reports that
indicated the video evidence shows only what “appears to be” defendant with what “appears to
be” a gun. In addition, after officers read defendant his Miranda rights (see [CITATION]),
defendant stated he did not understand but the interview continued without an explanation of those rights. Defendant denied possessing a gun. Yacub had a motive to
implicate defendant as a shooter as she and defendant were previously in a relationship.
Defendant also volunteered in the community, operating a nonprofit organization, “Growth
Peace Unity.”
¶ 14 In granting the State’s petition, the trial court found the State clearly and
convincingly proved the proof evident or presumption great defendant committed a detainable
offense. The court found the State sufficiently proved defendant was a real and present threat to
the named victims and to the community and the threat could not be mitigated with conditions.
The court based its findings “on the specific articulable facts of this case.” The court granted no-
contact orders with Yacub and Voeghtly.
¶ 15 Using a preprinted form, the trial court entered a written order finding the State
proved the dangerousness standard by clear and convincing evidence. Under “Less Restrictive
Conditions Ineffective,” the court checked boxes finding “Community/Individual safety cannot
be meaningfully achieved with available conditions of pretrial release,” “There is a high
likelihood that Defendant will commit new criminal offenses if granted pretrial release,”
“Defendant has access to, and likely would attempt to use, a dangerous weapon against others if
released,” and “Defendant has a history of *** thwarting/frustrating release/supervision
conditions.”
¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On February 14, 2024, defendant filed a notice of appeal challenging the order
denying him pretrial release under [CITATION]. Defendant’s notice of appeal is a completed form from the Article VI Forms Appendix to the
Illinois Supreme Court rules (see [CITATION]), by which he asks this
court to grant him pretrial release. The form lists several possible grounds for appellate relief and
directs appellants to “check all that apply and describe in detail.” Defendant checked three
grounds for relief and inserted language after these grounds. Defendant also filed a supporting
memorandum.
¶ 19 The first checked ground for relief is “The State failed to meet its burden of
proving by clear and convincing evidence no condition or combination of conditions can
mitigate the real and present threat to the safety of any person or persons or the community.” On
the lines under the preprinted text, defendant wrote the following:
“The State proffered evidence that [defendant] was a threat
to the safety of the community because of video footage and a
witness’ statement. According to the police report, footage only
appears to show that [defendant] was holding a firearm. It is not
definitive that he was. The footage also does not show [defendant]
discharging the item that appeared to be a firearm. The witness
who provided a statement to police was in a relationship with
[defendant] that he has now ended. Defense proffered that the
witness’ statements may be motivated by wrong motives.”
In his supporting memorandum, defendant argues the State failed to explain why the threat could
not be mitigated by any conditions of release and the trial court failed to explain in writing or
orally why certain conditions of release could not mitigate the threat. Defendant further
maintains the State misrepresented defendant was on pretrial release when the offenses in this
case were committed and the court, when ordering defendant detained, improperly relied on that
misrepresentation. Defendant contends he was placed on pretrial release in McLean County case
No. 23-CF-967 on September 14, 2023, but the offenses charged in this case occurred on August
6, 2023.
¶ 20 Under the Code, all criminal defendants are presumed eligible for pretrial release.
725 ILCS 5/110-6.1(e) (West 2022). Before the State may overcome that presumption and secure
pretrial detention of a criminal defendant under the dangerousness standard, the State must prove
multiple factors by clear and convincing evidence. One such factor is no condition or
combination of conditions can mitigate the real and present threat to the safety of any person or
persons or the community. See id. § 110-6.1(e)(3). Recently, we reaffirmed that we review a trial
court’s decision and findings on pretrial-detention issues under the abuse-of-discretion standard.
[CITATION] , ¶¶ 18-23, 35 (finding the manifest-weight-of-the-
evidence standard inappropriate for review of pretrial-detention orders).
¶ 21 We disagree with defendant’s argument the trial court did not explain its reasons
for finding the State clearly and convincingly proved no condition or combination of conditions
can mitigate the threat defendant poses to a person or persons or the community. At the hearing,
the court stated it made the finding “based on the specific articulable facts of this case.” In the
written order, under the following preprinted text stating, “Less restrictive conditions would not
avoid a real and present threat to the safety of any person(s) or the community, *** for the
following reasons:” the court checked four boxes, including finding a high likelihood existed
defendant would commit new criminal offenses if granted pretrial release, defendant had access
to and would likely attempt to use a dangerous weapon against others, and defendant had a
history of “thwarting/frustrating release/supervision conditions.” Given defendant’s history,
which includes violent offenses and the prohibition against him possessing a firearm, and the
circumstances of the offense, in particular defendant’s decision to retrieve a weapon, follow
individuals with whom he had an altercation, and fire a weapon into a crowd of people, the
court’s conclusions find support in the record.
[SEGMENT 33]
¶ 22 Defendant cites [CITATION], and
further alleges the failure to discuss whether orders of protection, electronic monitoring, and
home detention would mitigate the threat defendant poses to the community renders the trial
court’s order of detention deficient. In [CITATION], we found the “totality of the trial court’s
comments compels the conclusion that the court failed to, and refused to, consider and apply the
proper statutory criteria.” [CITATION]. This court mentioned the trial court’s failure to discuss
electronic monitoring only in support of the conclusion the trial court did not consider proper
criteria. [CITATION]. The [CITATION] court did not find the Code requires explicit consideration of
each statutory condition before finding mitigation of the threat cannot be achieved.
¶ 23 We also disagree with defendant’s claim the State misrepresented he violated
pretrial-release conditions when the alleged offenses were committed. The record shows
defendant was charged in 2023 with two offenses related to his not being licensed to drive. In
McLean County case No. 23-MT-1511, defendant was convicted of driving with a revoked
license. In McLean County case No. 23-CF-967, defendant was charged with aggravated fleeing
or attempting to elude a peace officer and driving with a suspended license. When defense
counsel proffered defendant was sentenced to conditional discharge on September 14, 2023, she
mentioned “conditional discharge” and the offense of driving with a revoked license and made
no mention of “pretrial release.” When the State proffered defendant was on pretrial release on
August 6, 2023, when the shootings occurred, the State referred to the driving with a suspended
license charge. Defendant, by making this argument on appeal, misinterpreted or misconstrued
the lower-court record. There is no evidence to contradict the State’s proffer defendant was on
pretrial release on August 6, 2023. Thus, in addition to the proffer showing defendant possessed
a weapon, despite being barred from doing so, there is proffered evidence defendant has a history
of not complying with pretrial conditions.
¶ 24 Defendant has not shown the trial court abused its discretion in finding the State
clearly and convincingly proved the threat could not be mitigated by any condition or
combination of conditions. See, e.g., [CITATION]
¶ 25 Defendant’s second checked ground for relief is irrelevant. The second box
checked by defendant asserts the trial court erred in finding no condition or combination of
conditions would reasonably ensure defendant’s appearance for later hearings or prevent him
from being charged with a subsequent felony or Class A misdemeanor. This argument applies to
appeals from orders revoking pretrial release under section 110-6(a) of the Code (725 ILCS
5/110-6(a) (West 2022)). Defendant was detained under section 110-6.1 of the Code (see id.
§ 110-6.1(a), (e)(2)-(3)), which does not require the State prove this factor before obtaining an
order denying defendant pretrial release.
¶ 26 For his third argument, defendant, on his notice of appeal, provided additional
information under a box for “Other.” Defense counsel wrote the following:
“Defense proffered evidence concerning [defendant’s]
statements. According [to] the disclosure provided, the police
officer advised [defendant] of his Miranda rights before the
interview began. [Defendant] indicated he did not understand.
However, the interview continued. Pursuant to statute, while this
may not rise to the level of suppression, this issue goes to the
weight of the State’s evidence.”
¶ 27 At the hearing, defense counsel raised this issue, and the trial court noted it agreed
it went to weight. The Miranda rights issue only applies to defendant’s statement placing himself
at the scene of the shooting. According to the State’s proffer, video evidence, GPS evidence, and
witness testimony placed defendant at the scene. The State proffered more than sufficient
evidence to satisfy its burden. Even if defendant could prove error, which he did not, we would
find the error harmless beyond a reasonable doubt.
¶ 28 III. CONCLUSION
¶ 29 We affirm the trial court’s judgment.
¶ 30 Affirmed.
- 10 -
2024 IL App (4th) 240248
FILED
April 29, 2024
NO. 4-24-0248 Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Jersey County
CHRISTOPHER B. THOMAS, ) No. 24CF7
Defendant-Appellant. )
) Honorable
) Allison S. Lorton,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Presiding Justice Cavanagh and Justice Harris concurred in the judgment, with opinion.
OPINION
¶1 Defendant Christopher B. Thomas appeals from the circuit court’s February 1,
2024, order denying pretrial release pursuant to the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/art. 110 (West 2022)), as amended by Public Act 101-652 (eff. Jan. 1, 2023)
(commonly referred to as the Pretrial Fairness Act). On appeal, he argues that the State failed to
meet its burden of proving by clear and convincing evidence that (1) the proof is evident or the
presumption great that he committed the offense charged; (2) he posed a real and present threat
to the safety of any person or persons or the community, based on the specific, articulable facts
of the case; and (3) no condition or combination of conditions could mitigate the real and present
threat posed or his willful flight. Defendant further argues that the court erred in its determination that no condition or combination of conditions would reasonably ensure his appearance for later
hearings or prevent him from being charged with a subsequent felony or Class A misdemeanor.
¶2 We affirm.
¶3 I. BACKGROUND
¶4 On January 30, 2024, defendant was charged by information with unlawful
possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)), specifically, the
possession by a person convicted of a felony of “a Winchester 22 lever action rifle and a
Remington 12-gauge slug gun, an enhanced Class 3 felony. The incident allegedly took place on
January 27, 2022.
¶5 On February 1, 2024, the State filed a verified petition to deny pretrial release,
arguing that the charged offense was detainable, that defendant’s release posed a clear and present
threat to individuals or the community, and that no condition or combination of conditions could
mitigate the real and present threat posed by defendant. The State attached a pretrial detention
report, which identified defendant as a threat, a copy of trail camera photographs showing
defendant in possession of the firearms, and a probable cause statement authored by Jersey
County Sheriff’s Office Detective Marshall Lewis describing the incident of January 27, 2022.
¶6 At the February 1, 2024, hearing on the State’s verified petition, the State called
Detective Lewis to the stand, who testified as follows:
“It was reported that [defendant] had broken [into] his mother and step-father’s
house. Further broke [into] a safe which had firearms. Gained access to those
firearms and [proceeded] fire several shots inside of the residence he was staying
in at the time into the bed, into appliances. So much so that his girlfriend at the time
was in fear enough that she requested that her son come pick her up at the end of
the driveway. She left the residence that night that this all occurred. She was still
worried about [defendant] and his situation and having the firearms that she
contacted mother and step-dad and advised that hey, [defendant] is down there at
the trailer. He’s got guns. Step-dad gets to the property and sees [defendant] with a
firearm in his hand. Talked him down from some of the things he was saying.
Step-dad goes into the trailer with him to try to calm him down a little bit and
noticed two more firearms that were his taken from the safe laying there on the bed.
He took possession of those firearms at the time.”
¶7 Detective Lewis further verified that a trail camera in the vicinity had captured
defendant and his stepfather at the trailer and the stepfather taking the guns from defendant.
¶8 Detective Lewis detailed at least eight incidents between January 2022 and the date
of the hearing wherein defendant made threats to Angie Blasa and Danny Law, as well as other
prior arrests for assault, battery, drug-related crimes, and weapons crimes, and eight other calls
relating to defendant’s mental welfare. According to Detective Lewis, in August 2023, defendant
threatened Blasa through text messages and had also shown up at her residence with what was
believed to be a firearm and would not leave. Lewis also testified that defendant was the primary
[SEGMENT 34]
suspect in a January 2024 investigation (Jersey County case No. 24-CF-466) concerning the
January 16, 2024, aggravated discharge of a firearm into Blasa’s residence, where she was
sleeping.
¶9 According to the pretrial detention report, defendant made statements that he had a
firearm and that he was going to kill Blasa and/or those she cares about. Detective Lewis
acknowledged that charges had not yet been recommended against defendant for the 2024 incident
but explained that, before referring charges to the state’s attorney, “I would still be looking for
additional pieces of evidence and some of the evidence that I’m investigating and still continuing
to collect just take[s] time for me to get some of those items—when you’re dealing with phones
and subpoenaed records.”
¶ 10 Following arguments, the circuit court granted the State’s motion and ordered
defendant detained. The court initially found that defendant had committed a detainable offense
and then concluded that defendant posed a real and present threat. On the latter point, the court
concluded that defendant “poses a real and present threat to the safety of any persons or the
community based upon specific articulable facts of the case, by conduct which may include not
limited to forceable felony, obstruction of justice, intimidation or injury as defined by the statute
and denial of release is necessary to prevent fulfillment of the threat upon which the charge is
based.” The court explained,
“I do believe that I have the discretion to consider the facts and circumstances of
this timeframe which has brought us here today. I have specific articulable facts
and threats of violence based upon the proffer of Detective Lewis from 2023 and
up to most recently which may involve shots being fired at this residence being
Angie Blasa and her current—those in her household. We have a period of
numerous—since 2022 this charge defense police contacts with respect to mental
health concerns, threats of violence, threats of abuse. I have a criminal history that
involves charges, possession of methamphetamine, burglary, driving under the
influence of alcohol—the current charge of unlawful possession of weapon by
felon. I do think it’s within my discretion to look at the totality of the circumstances,
in particular[] this timeline and the escalation of the events that has brought us from
where this original charge was filed to today.”
¶ 11 Accordingly, the circuit court found that defendant constituted a threat to the safety
of those individuals listed in the State’s proffer and
“at this point in time there are no set of conditions that could mitigate the real and
present threat that [defendant] has based upon the proffer, specifically the testimony
of Detective Lewis regarding the numerous police contacts, mental health concerns,
substance abuse concerns and for this Court possession of—on multiple occasions
and access to and possibly using dangerous weapons to fulfill threats that have been
made and conveyed to the Court.”
¶ 12 Moreover, the circuit court added, “a no stalking no contact order has been filed
today with respect to Angie Blasa. I do feel that based upon facts and circumstances offered by
*** Detective Lewis *** that is also appropriate for this Court to take into consideration when I’m
considering the threat posed by this defendant.”
¶ 13 The circuit court’s written order, entered that same day, found that the State had
established by clear and convincing evidence that defendant was a clear and present threat and that
no conditions or combination of conditions set forth in subsection (b) of section 110-10 of the
Code could mitigate the threat posed by defendant. [CITATION]. The
court’s written order further checked the following boxes under the section of the order that stated,
“The Court’s reason(s) for concluding the Defendant should be denied pre-trial release” were
based on the following factors: (1) the nature and circumstances of the offense(s) charged; (2) that
defendant’s prior criminal history is indicative of violent, abusive, or assaultive nature; (3) the
identity of any person(s) to whose safety defendant is believed to pose a threat, and the nature of
the threat; (4) any statement(s) being made by, or attributed to defendant, together with
circumstances surrounding them; and (5) defendant is known to possess or have access to weapons.
The court further stated that it “relie[d] upon further allegations and entry of no contact order this
date, 24OP7, by Angie Blasa, specific identifiable nature of subsequent[ ] threats and ongoing
criminal investigations.”
¶ 14 Defendant filed his notice of appeal pursuant to Illinois Supreme Court Rule 604(h)
(eff. Dec. 7, 2023) on February 1, 2024, raising the following issues: (1) the State failed to meet
its burden of proving by clear and convincing evidence that the proof is evident or the presumption
great that defendant committed the offense(s) charged; (2) the State failed to meet its burden of
proving by clear and convincing evidence that defendant poses a real and present threat to the
safety of any person or persons or the community, based on the specific, articulable facts of the
case; (3) the State failed to meet its burden of proving by clear and convincing evidence that no
condition or combination of conditions can mitigate the real and present threat to the safety of any
person or persons or the community, based on the specific, articulable facts of the case, or
defendant’s willful flight; and (4) the circuit court erred in its determination that no condition or
combination of conditions would reasonably ensure the appearance of defendant for later hearings
or prevent defendant from being charged with a subsequent felony or Class A misdemeanor. No
further explanations or details were offered. Defendant’s subsequent Rule 604(h)(2) memorandum
(Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023)), however, only addressed the issue of whether “no
condition or combination of conditions can mitigate the real and present threat to the safety of any
person or persons or the community.”
¶ 15 This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, defendant challenges the February 1, 2024, detention order, which we
review under an abuse of discretion standard. [CITATION], ¶¶ 10-11. “[I]n reviewing the circuit court’s ruling
for an abuse of discretion, we will not substitute our judgment for that of the circuit court, merely
because we would have balanced the appropriate factors differently.” (Internal quotation marks
omitted.) [CITATION], ¶ 11. “ ‘An abuse of discretion occurs when the [trial]
court’s decision is “arbitrary, fanciful or unreasonable” or where “no reasonable person would
agree with the position adopted by the [circuit] court.” ’ ” Id. ¶ 10 (quoting [CITATION], ¶ 9, quoting [CITATION]).
¶ 18 The Code abolishes traditional monetary bail and provides defendants with a
presumption in favor of pretrial release. 725 ILCS 5/110-1.5, 110-2(a) (West 2022). To detain a
defendant pretrial, the State has the burden of proving by clear and convincing evidence that
(1) “proof is evident or the presumption great” that the defendant committed a detainable offense,
(2) the defendant “poses a real and present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the case,” and (3) no condition or
combination thereof can mitigate the threat the defendant poses. Id. § 110-6.1(e)(1)-(3).
¶ 19 Here, we focus on the third requirement. We note that although defendant indicated
other issues in his notice of appeal, these issues were not elaborated on by defendant’s appellate
memorandum. The arguments as stated in the notice of appeal are made cursorily and without any
explanation of the grounds for seeking reversal. We will, therefore, confine our discussion to the
adequacy of the conditions of pretrial release to mitigate the threat defendant poses and find that
defendant did not carry his burden respecting the remaining issues listed in his notice of appeal.
See, e.g., [CITATION], ¶ 16.
¶ 20 Turning to the issue of whether the State failed to prove by clear and convincing
evidence that no condition or combination of conditions can mitigate the threat the defendant
poses, defendant raises two arguments. First, he asserts that the circuit court’s written order is
deficient and fails to comply with the requirements of section 110-6.1(h)(1). 725 ILCS
5/110-6.1(h)(1) (West 2022). Relatedly, he argues that the court’s oral pronouncements cannot be
considered in determining whether the court’s order satisfied section 110-6.1(h)(1). Id. Second,
defendant argues that, even looking at the court’s oral pronouncements, the court failed to
articulate sufficient grounds to explain why alternatives to detention could not work.
¶ 21 On defendant’s first point, we note that all appellate court districts have now
recognized that a circuit court’s oral pronouncements can be considered in conjunction with its
written explanation in assessing the court’s compliance with section 110-6.1(h)(1). See, e.g.,
[CITATION]. Indeed, given that the
point of requiring a written finding is to give notice of the reasons for the court’s findings for
appellate review, the same purpose is served when the court’s findings are stated orally. [CITATION]. Where the
[SEGMENT 35]
hearing transcripts and written order “ ‘provide an equal opportunity to review the validity of the
finding on appeal,’ ” it is sufficient to comply with section 110-6.1(h)(1)’s “written finding”
requirement. [CITATION]. We
therefore decline defendant’s suggestion that we should limit our consideration of the circuit
court’s reasoning solely to its written findings.
¶ 22 Turning our attention to the written findings in the February 1, 2024, detention
order, these findings outline the circuit court’s justification for determining that pretrial release
should be denied: the nature and circumstances of the offense charged; the violent, abusive, or
assaultive nature of defendant’s prior criminal history; the nature of the threat to an identifiable
individual, namely Blasa; and defendant’s known possession of, or access to, weapons. Moreover,
it considered the no contact order obtained that same day by Blasa, who had been the target of
defendant’s threats. These are proper written findings because they are appropriate factors for the
court’s consideration of defendant’s dangerousness under section 110-6.1(g)(1)-(9) and the
question of what conditions factors might mitigate the danger if defendant were released under
section 110-5(a)(1)-(7). See 725 ILCS 5/110-5(a)(1)-(7), 110-6.1(g)(1)-(9) (West 2022).
Considering the entire record before the court, we do not find an abuse of discretion. [CITATION].
¶ 23 Similarly, in its oral ruling, the circuit court made express findings concerning why
the real and present threat posed by defendant could not be mitigated. Specifically, the court stated:
“I find that the defendant does pose a threat to the safety of those listed in this
proffer and therefore at this point in time there are no set of conditions that could
mitigate the real and present threat that [defendant] has based upon the proffer,
specifically the testimony of Detective Lewis regarding the numerous police
contacts, mental health concerns, substance abuse concerns and for this Court
possession of—on multiple occasions and access to and possibly using dangerous
weapons to fulfill threats that have been made and conveyed to the Court.”
(Emphasis added.)
¶ 24 The circuit court further stated, “I do think it’s within my discretion to look at the
totality of the circumstances, in particular[] this timeline and the escalation of the events that has
brought us from where this original charge was filed to today.” The court’s statements, viewed
with its written findings, provide sufficient explanation of its grounds for ruling on the issue of
mitigation; we find no abuse of discretion in the court’s conclusion.
¶ 25 We note that defendant has criticized the circuit court’s failure to specifically
address or refute his suggestion that electronic monitoring or home confinement might be
reasonable conditions to mitigate the threat. Defendant treats electronic monitoring as a condition
which is sufficient until proven otherwise; we see no support for that specific proposition in the
law.
¶ 26 Where available, electronic monitoring may well be a useful tool to guard against
misconduct by a defendant who is released on conditions, but this does not mean that electronic
monitoring addresses every defendant’s potential dangerousness in every case. Electronic
monitoring that is not linked to a geographic limitation provides extremely limited information:
just the defendant’s location. When coupled with a geographic limitation such as home
confinement, electronic monitoring can help alert pretrial officers to a potential violation of that
geographic limitation. But any condition of release must be appropriately measured to meet the
danger presented in each case. Knowing that electronic monitoring might detect a failure to comply
with conditions of release does not diminish concerns that a particular defendant appears to present
a greater risk of noncompliance, especially if the consequences of noncompliance may be grave.
¶ 27 Here, the facts presented to the circuit court gave substantial reason to be concerned
that defendant presented a risk of lethal violence: prior weapons violations, prior threats aimed at
a specific individual, the discharge of weapons inside a residence, and possible mental health
issues underlying this history. In other words, it would be extraordinarily difficult to predict
defendant’s compliance with any conditions of release. Electronic monitoring offers the promise
of promptly informing law enforcement if defendant violated a home confinement restriction or—
- 10 - in the worst case scenario—where he was at the time he violated some other condition or made
good on his threat against Blasa. It would not, however, provide much in the way of prevention of
such a violation or threat, and it is reasonable to question what deterrent effect it would have when
the misdeeds at issue may relate to mental illness. We do not believe that the circuit court abused
its discretion in rejecting the sufficiency of electronic monitoring to guard against the potential
danger posed in this case.
¶ 28 Furthermore, we do not read section 110-6.1(h) as requiring a court to specifically
address each individual suggestion of conditions offered by a party in rendering its decision.
Overall, the record here confirms the circuit court followed and applied the Code when deciding
to detain defendant. Therefore, its decision is not arbitrary, fanciful, or unreasonable, and there
was no abuse of discretion. [CITATION], ¶ 10.
¶ 29 Similarly, we do not find that section 110-6.1(e)(2) requires the State to anticipate
and tender in advance its explanation of why a particular condition may or may not mitigate the
dangers defendant presents. See 725 ILCS 5/110-6.1(e)(2) (West 2022). As we said in [CITATION],
“We cannot expect the State to specifically raise and argue against every possible
condition of release in every case; there must be some limiting principle. In general,
it is reasonable to anticipate that the State will address conditions insofar as they
relate to the charged conduct, the defendant’s criminal history, the defendant’s risk
assessment score, and any other relevant considerations about the defendant known
to the State at the hearing.” [CITATION], ¶ 39.
¶ 30 As was the case in [CITATION], “the State’s central argument against the sufficiency of
conditions was defendant’s past misconduct, including violent misconduct occurring when
defendant was on probation.” Id. ¶ 40. Moreover, as in [CITATION], defendant here offered various
- 11 - options for possible conditions to mitigate the threat. Accordingly, “[i]t became the trial court’s
responsibility to evaluate each party’s argument and evidence.” [CITATION] As the circuit court did in
[CITATION], the circuit court below “found the State’s position to be more persuasive, as the court was
concerned about defendant’s continuing misconduct while on probation or pretrial release.” [CITATION]
We find no abuse of discretion.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the circuit court’s judgment.
¶ 33 Affirmed.
- 12 -
====== [CITATION]
Decision Under Review: Appeal from the Circuit Court of Jersey County, No. 24-CF-7; the
Hon. Allison S. Lorton, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Deborah Israel, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
- 13 -
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
2024 IL App (4th) 240103
FILED
April 12, 2024
NO. 4-24-0103 Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
KENDALL CECIL MORGAN, ) No. 24CF3
Defendant-Appellant. )
) Honorable
) Amy L. McFarland,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Justices Lannerd and Vancil concurred in the judgment and opinion.
OPINION
¶1 Defendant Kendall Cecil Morgan appeals the trial court’s order denying him
pretrial release pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/art. 110 (West 2022)), as amended by Public Act 101-652, § 10-255 (eff. Jan. 1, 2023),
commonly known as the Pretrial Fairness Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1,
2023) (amending various provisions of the Act); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (setting the
Act’s effective date as September 18, 2023).
¶2 On appeal, defendant argues that (1) we should review the trial court’s rulings
de novo and (2) the court erred by denying him pretrial release because the State failed to establish
by clear and convincing evidence that no condition or combination of conditions of release would
mitigate the real and present threat he posed to the community. We disagree on both points and
affirm.
¶3 I. BACKGROUND
¶4 On the evening of December 29, 2023, defendant arrived visibly drunk and upset
at the apartment of Vanessa Williams, the mother of his child. Williams refused to let defendant
inside because she was seeking an order of protection against him, so he broke a front window and
kicked in the front door. He then began hitting Williams in the face and threw her against a mirror
in the apartment, causing it to break. Three minor children were in the apartment at the time; two
of them ran to a neighbor’s home and called 911. When officers arrived on the scene, they found
defendant on top of Williams in the doorway to the apartment. The officers observed blood and
bruises on Williams’s head and face as well as a bite mark on her left hand. Defendant struggled
with one of the officers but was eventually taken into custody.
¶5 Defendant was charged by information with one count of home invasion (720 ILCS
5/19-6(a)(2) (West 2022)) and one count of domestic battery (id. § 12-3.2(a)(1)). On January 2,
2024, the State filed a verified petition to deny defendant pretrial release on dangerousness
grounds, citing both charges as qualifying offenses. See 725 ILCS 5/110-6.1(a)(1), (4) (West
2022). The State also sought a no contact provision in the detention order preventing defendant
from contacting Williams while he remained in custody. See id. § 110-6.1(m)(2) (allowing for
such a provision). The trial court held the detention hearing immediately.
¶6 At the hearing, the State proffered evidence of the above allegations, as well as
details regarding defendant’s criminal history. Defendant was convicted of a 2007 armed robbery
and was sentenced to 14 years in the Illinois Department of Corrections. Defendant had two
additional prosecutions pending against him in McLean County, one for driving under the
-2-
influence in 2021 and another for battery against Williams in December 2023 (i.e., the same month
as the home invasion and battery alleged in this case). At the time of both alleged attacks of
Williams, defendant was serving a term of 30 months’ probation for aggravated battery of a peace
officer in McLean County case No. 21-CF-175. His release status from the battery alleged to have
occurred earlier in the month is unclear from the record, as are any conditions attendant to that
release. Defendant’s public safety assessment report rated him as a 5 out of 6 on the “New Criminal
Activity” scale and a 4 out of 6 on the “Failure to Appear” scale.
¶7 Defense counsel proffered evidence that defendant had just been diagnosed with
bipolar disorder and would seek and comply with mental health treatment on release; no specific
treatment plans were identified. Counsel suggested that defendant be placed on electronic
monitoring with a condition prohibiting contact with Williams. According to defense counsel,
defendant might assert an affirmative defense of involuntary intoxication because he had taken a
pain pill from a friend and blacked out before attacking Williams.
¶8 The trial court concluded that no release conditions could mitigate the real and
present threat defendant posed, in particular because defendant had committed the charged
offenses while on probation. The trial court entered a written detention order and included the
requested no contact provision.
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues that (1) we should review the trial court’s rulings
de novo and (2) the court erred by denying him pretrial release because the State failed to establish
by clear and convincing evidence that no condition or combination of conditions of release would
mitigate the real and present threat he posed to the community.
-3-
¶ 12 A. Standard of Review
¶ 13 Since this court began deciding appeals under the Act, the Fourth District has
consistently reviewed the trial court’s findings regarding pretrial release for an abuse of discretion.
See, e.g., People v. Inman, 2023 IL App (4th) 230864, ¶¶ 10-11; People v. Martin, 2023 IL App
(4th) 230826, ¶ 21. “ ‘An abuse of discretion occurs when the [trial] court’s decision is “arbitrary,
fanciful or unreasonable” or where “no reasonable person would agree with the position adopted
by the [trial] court.” ’ ” Inman, 2023 IL App (4th) 230864, ¶ 10 (quoting People v. Simmons, 2019
IL App (1st) 191253, ¶ 9, quoting People v. Becker, 239 Ill. 2d 215, 234 (2010)). When reviewing
issues of statutory construction, however, we have employed de novo review. See, e.g., People v.
Jones, 2023 IL App (4th) 230837, ¶ 13; People v. Minssen, 2024 IL App (4th) 231198, ¶ 17; see
also People v. Battle, 2023 IL App (1st) 231838, ¶ 24 (rejecting the defendant’s objection to the
trial court’s findings where her objection “fail[ed] to consider the plain language of section 110-
6.1 [of the Code]”).
¶ 14 Relying primarily on the special concurrence in People v. Saucedo, 2024 IL App
(1st) 232020, ¶ 64 (Ellis, J., specially concurring), defendant invites us to depart from our prior
decisions and review the trial court’s findings under a less deferential standard. While Inman
stands as presumptively appropriate authority in this district, it was an early decision under the
Act; we are aware that other courts have disagreed with Inman and applied a different standard.
Consequently, we use this case as the opportunity to reexamine Inman’s conclusion in light of
these cases. Because our deliberations required additional time, we find there is good cause for
extending the deadline for this decision from its original deadline of April 3, 2024. See Ill. S. Ct.
R. 604(h)(5) (eff. Dec. 7, 2023). As discussed below, however, our examination of the matter ends
-4-
up exactly where Inman left us: the conclusion that the abuse of discretion standard of review is
appropriate in appeals of pretrial detention decisions under the Act.
¶ 15 We begin our examination by recognizing that the standard for the trial court’s
initial detention decision as set forth in the Act is something of an anomaly. When seeking to
detain a defendant prior to trial, the State is specifically authorized to proceed via “proffer based
upon reliable information.” 725 ILCS 5/110-6.1(f)(2) (West 2022). Normally, a proffer is not
considered evidence but a statement as to what evidence would be. See People v. Weinke, 2016 IL
App (1st) 141196, ¶ 41 (“A proffer is used to convince a trial court to admit evidence and must
apprise the trial court ‘what the offered evidence is or what the expected testimony will be, by
whom it will be presented and its purpose.’ ” (quoting Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill.
App. 3d 444, 451 (2004))). The Act, however, appears to equate “proffer” with “evidence,” as it
permits the presentation of “evidence at the hearing by way of proffer.” (Emphases added.) 725
ILCS 5/110-6.1(f)(2) (West 2022). This creates an anomaly because the State’s proffered
“evidence” must reach the level of “clear and convincing” weight in order to justify detention (id.
§ 110-6.1(e)), even though it is unclear how a proffer can be “weighed” in the same way that
witness testimony or documentary evidence might be. A more apt description of the standard of
proof in the trial court, at least where proffers are involved, might be proof by a “clear and
convincing description of the evidence.” It is not difficult to see how this description, though
accurate, is out of harmony with traditional notions of the burden of proof.
¶ 16 Anomalous or not, this is the scheme the Act prescribes, so the task facing the
appellate court is to determine how best to review a trial court’s finding that the State’s proffer, by
itself or combined with admitted evidence, satisfies the “clear and convincing” evidentiary burden.
Selecting a standard of appellate review of decisions made under such a curiously constructed
-5-
standard of proof presents a significant challenge; if the foundation (the standard in the trial court)
is doctrinally unsound, it becomes more difficult to have confidence in the structure built upon it
(the standard of review in the appellate court). With these challenges in mind, we now proceed to
assess the three most common options suggested for the standard of appellate review—manifest
weight of the evidence, de novo, and abuse of discretion—fully aware that each may present
reasons to find it less than entirely satisfactory.
¶ 17 1. Manifest Weight of the Evidence
¶ 18 Some have suggested that the trial court’s findings in the detention context should
be reviewed under a manifest weight of the evidence standard. People v. Pitts, 2024 IL App (1st)
232336, ¶ 29; People v. Johnson, 2023 IL App (5th) 230714, ¶ 14. We find ourselves in agreement
with this approach in one respect: it suggests a standard that employs a degree of deference to the
trial court’s decision.
¶ 19 Our specific concern with the manifest weight standard, however, is that it builds
on the anomaly noted above. At least where some or all of the “evidence” before the trial court
consists of proffers, the manifest weight standard asks the appellate court to determine whether a
finding is against the “weight” of something that cannot be weighed, at least not in the same way
that true evidence can be. For example, neither we nor the trial court can decide the “weight” to
give to the credibility of a declarant whose testimony was only described via proffer. Viewed
properly, the trial court’s role is not to evaluate such a declarant’s credibility but to digest the
proffered information, assess its strength in the light of contrary information, and make a judgment
about how all of the information received bears on the statutory requirements regarding pretrial
release.
-6-
¶ 20 On the question of dangerousness, for example, the Act directs the trial court to
consider eight different factors, as well as a ninth catchall factor. See 725 ILCS 5/110-6.1(g)(1)-
(9) (West 2022). There can be little doubt that not all judges would examine and balance all
relevant factors in precisely the same way or even reach the same result. It is not even a finding of
historical fact but a prediction of the risk of future conduct (and, in regard to conditions of release,
what steps might adequately mitigate that risk). The United States Supreme Court has explained
that “a prediction of future criminal conduct is ‘an experienced prediction based on a host of
variables’ which cannot be readily codified.” Schall v. Martin, 467 U.S. 253, 279 (1984) (quoting
Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 16 (1979)).
These are not the kind of decisions where any particular outcome can be described as “clearly
evident,” the relevant outer boundary under manifest weight review. See People v. Chambers,
2016 IL 117911, ¶ 75 (“Review for abuse of discretion is proper when the trial court *** must, for
lack of a better phrase, make a judgment call.”).
¶ 21 Procedurally, where the “evidence” presented below is composed mostly or entirely
of proffers, a trial court’s decision under the Act is not dissimilar to the decision of whether to
enter a temporary restraining order (TRO) in a civil proceeding. The “evidence” at a TRO hearing
is composed of “specific facts shown by affidavit or by the verified complaint.” 735 ILCS 5/11-
101 (West 2022). The trial court must make determinations that appear to be fundamentally
factual: whether “immediate and irreparable injury, loss, or damage will result to the applicant” if
the TRO does not issue. Id. Despite the fact-intensive nature of the issue, the trial court’s decision
is reviewed not under the “manifest weight” standard but the abuse of discretion standard. See
Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc., 94 Ill. 2d 535, 541-42 (1983).
-7-
¶ 22 Similarly, in the context of a motion to disqualify a defendant’s chosen counsel in
a criminal case, the supreme court has recognized that a trial court may disqualify counsel “only
if it could reasonably find that defense counsel has a specific professional obligation that actually
does conflict or has a serious potential to conflict with defendant’s interests.” People v. Ortega,
209 Ill. 2d 354, 361 (2004). Although this decision requires the trial court to weigh facts, it is
nevertheless reviewed for an abuse of discretion on appeal, even when those facts are undisputed.
Id. at 360; see People v. Holmes, 141 Ill. 2d 204, 223 (1990) (rejecting the view “that courts can
always determine in a definite, precise manner whether a conflict or potential conflict of interest
exists” and provide a simple “yes or no” answer).
¶ 23 Both the manifest weight and abuse of discretion standards of review are deferential
to the trial court’s ruling. See Best v. Best, 223 Ill. 2d 342, 350 (2006) (manifest weight standard);
In re D.T., 212 Ill. 2d 347, 356 (2004) (abuse of discretion standard). Between the two, we continue
to believe the abuse of discretion standard is the better fit for reviewing pretrial detention decisions
under the Act. While the manifest weight standard is properly employed with respect to trial court
findings based on evidence, the trial court making a detention decision is presented with
“evidence” consisting primarily, if not wholly, of proffers. Furthermore, the broad subjects of the
trial court’s ruling—“dangerousness” and “sufficiency” of conditions as provided by statute—are
inherently exercises of judgment informed by an abbreviated record.
¶ 24 2. De Novo Review
¶ 25 Others have argued that, at least when the trial court’s decision is based on proffers
with no assessment of credibility, the reasons for deference to the trial court disappear, so we
should employ a de novo standard of review. Saucedo, 2024 IL App (1st) 232020, ¶ 102 (Ellis, J.,
specially concurring). However, even where all of the “evidence” presented is by way of proffer,
-8-
the trial court also has the ability to observe something that the reviewing court never will: the
defendant. A trial judge “can observe the defendant’s demeanor and whether he or she appears
compliant versus defiant or threatening,” an opportunity not afforded to the reviewing court. Pitts,
2024 IL App (1st) 232336, ¶ 42 (Van Tine, J., specially concurring). The trial court’s greater
opportunity to observe the defendant is reason enough to afford deference to its findings. This is
similar to the imposition of a sentence following conviction, a decision we review for an abuse of
discretion “because the trial judge, having observed the defendant and the proceedings, is in a
much better position to consider factors such as the defendant’s credibility, demeanor, moral
character, mentality, environment, habits, and age.” People v. Snyder, 2011 IL 111382, ¶ 36; see
Rowe, 2023 IL 129248, ¶ 49 (comparing discretion under the Act with discretion in sentencing).
This standard of review still applies even though sentencing decisions “often involve materials
that are not admitted as evidence, such as presentence investigation reports and statements from
victims, friends, and family.” People v. Wells, 2024 IL App (1st) 232453, ¶ 19; see 730 ILCS 5/5-
4-1(1) (West 2022) (outlining materials the trial court may consider at a sentencing hearing).
¶ 26 Furthermore, the “evidence” at some detention hearings will include more than just
proffers, documentary evidence, and the trial court’s observations of the defendant; it may extend
to evidence such as live witness testimony, police reports, body camera footage, text messages,
jail calls, and the like. It would be fundamentally unworkable to apply a different standard of
review for each piece of evidence depending on its nature. For example, if a trial court evaluating
a defendant’s dangerousness considers the State’s proffer about the facts supporting the underlying
charges but also hears eyewitness testimony that the defendant violently resisted arrest, the trial
court would still have to make a unitary finding on the single issue of dangerousness. How could
this court employ de novo review of the evidentiary proffer while affording deference to the trial
-9-
court’s evaluation of the witness’s credibility? A single finding based on testimony and direct
observation of the defendant, as well as documentary or proffered evidence, cannot be
simultaneously reviewed under one standard for the former and a different one for the latter.
¶ 27 It has been further argued that the de novo standard is justified even for traditional
evidence because a pretrial detention order interferes with a defendant’s strong interest in liberty.
See Saucedo, 2024 IL App (1st) 232020, ¶ 107 (Ellis, J., specially concurring) (“[B]oth our
supreme court and the United States Supreme Court have embraced independent de novo review
in other fact-intensive contexts where the importance of the constitutional rights at stake so
warranted.”). We take no issue with the premise that defendants have a strong interest in liberty
from incarceration, but we find neither authority nor reason to conclude that the importance of a
constitutional right dictates a de novo standard of review for every appeal in which that right is
implicated. See, e.g., Container Corp. of America v. Franchise Tax Board, 463 U.S. 159, 176 n.13
(1983) (declining to review a fact-intensive constitutional claim de novo); see also Henry P.
Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 264-65 (1985) (“[T]here are a
wide range of constitutional challenges in which the [United States Supreme] Court does not see
itself under an inexorable duty to engage in constitutional fact review.”). The United States
Supreme Court has pointedly not embraced de novo review even when independently reviewing
some of a trial court’s factual determinations, stating: “The independent review function is not
equivalent to a ‘de novo’ review of the ultimate judgment itself, in which a reviewing court makes
an original appraisal of all the evidence to decide whether or not it believes that judgment should
be entered for plaintiff.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514
n.31 (1984).
- 10 -
¶ 28 In any event, while it has been suggested that the supreme court has “rejected the
abuse-of-discretion standard when deciding issues of constitutional magnitude” (Saucedo, 2024
IL App (1st) 232020, ¶ 108 (Ellis, J., specially concurring)), this has not been invariably the case.
In Ortega, 209 Ill. 2d at 359, the court employed abuse of discretion review of a decision
disqualifying counsel, specifically rejecting the proposition that de novo review “is particularly
important to achieve consistency when a constitutional right is at stake”—there, the constitutional
right to the assistance of counsel. Although the United States Supreme Court endorsed the due
process safeguard of “immediate appellate review of [a] detention decision” under the federal Bail
Reform Act of 1984 (18 U.S.C. § 3141 et seq. (2018)), it did not hold that any particular standard
of review was required to protect the defendant’s liberty. United States v. Salerno, 481 U.S. 739,
752 (1987).
¶ 29 As noted above, it is well established that sentencing decisions are reviewed for an
abuse of discretion. People v. Webster, 2023 IL 128428, ¶ 32; accord Gall v. United States, 552
U.S. 38, 51 (2007). Trial court decisions on whether to sentence a defendant to imprisonment, or
how long the sentence should be, have an even greater impact on the defendant’s liberty than do
decisions regarding pretrial release, but the restriction on the defendant’s liberty is no less
important. See Wells, 2024 IL App (1st) 232453, ¶ 19 (“If we entrust trial courts to exercise
discretion in fashioning sentences, then we should trust them to exercise discretion in making
pretrial detention rulings ***.”). Similarly, the fact that a defendant facing a criminal sentence
lacks the same presumption of innocence afforded a defendant before trial does not mean that a
less deferential standard is appropriate; the presumption of innocence is not fundamentally
incompatible with abuse of discretion review even when bedrock constitutional rights are involved.
- 11 -
See Ortega, 209 Ill. 2d at 360 (right to counsel of defendant’s choice); People v. McDonald, 2016
IL 118882, ¶ 42 (right to present a theory of defense).
¶ 30 At bottom, de novo review means that “[w]e perform the same analysis that a trial
court would, and we owe no deference to the trial court.” People v. Avdic, 2023 IL App (1st)
210848, ¶ 25. Coupling the automatic right of appeal from detention decisions (see 725 ILCS
5/110-6.1(j) (West 2022)) with a de novo standard of review would diminish the significance of
trial courts’ decision-making and guarantee every defendant a second bite at the apple on every
aspect of every detention decision. We do not believe this unworkable outcome is demanded either
by the kind of materials considered or the gravity of the rights involved in a detention decision.
¶ 31 3. Abuse of Discretion
¶ 32 In Inman, we reasoned that pretrial detention appeals most closely resemble appeals
from “order[s] setting, modifying, revoking, denying, or refusing to modify bail or the conditions
thereof” under Illinois Supreme Court Rule 604(c)(1) (eff. Sept. 18, 2023); we held that the same
standard applicable in bail appeals—abuse of discretion—should also apply to appeals “by the
defendant from an order denying pretrial release” under Illinois Supreme Court Rule 604(h)(1)(iii)
(eff. Sept. 18, 2023). Inman, 2023 IL App (4th) 230864, ¶¶ 10-11 (citing Simmons, 2019 IL App
(1st) 191253). The abuse of discretion standard for bail appeals under Rule 604(c) dates to People
v. Edwards, 105 Ill. App. 3d 822, 830 (1982). Before Rule 604(c) was enacted in 1971, defendants
challenging bail decisions were required to petition the supreme court for a writ of habeas corpus.
People v. Kelly, 24 Ill. App. 3d 1018, 1032 (1975). Even these earlier decisions, however,
employed abuse of discretion review. See, e.g., People ex rel. Smith v. Blaylock, 357 Ill. 23, 26
(1934) (“[T]he statute is silent on the subject of the amount of the bond that the magistrate may
- 12 -
impose ***, yet the discretion committed to the magistrate must be exercised reasonably and
neither arbitrarily nor tyrannically ***.”).
¶ 33 Pitts attempted to distinguish Simmons and other cases predating the Act on the
basis that those cases involved “the setting of bail rather than detention.” Pitts, 2024 IL App (1st)
232336, ¶ 19; compare 725 ILCS 5/110-5 (West 2018) (governing the determination of conditions
of release), with 725 ILCS 5/110-6.1 (West 2018) (governing the denial of bail in
nonprobationable felony offenses). But see Ill. S. Ct. R. 604(c)(1) (eff. Dec. 7, 2023) (drawing no
distinction between “order[s] setting, modifying, revoking, denying, or refusing to modify bail or
the conditions thereof”). In other words, Pitts suggested that, while the abuse of discretion standard
might be appropriate when reviewing the amount of bail or other conditions of release imposed, a
less deferential standard of review is necessary when bail is denied and no conditions of release
are found adequate. But detention and release are merely two sides of the same coin. A decision
not to detain is a decision to release, subject only to a determination of the appropriate conditions;
a decision not to release is a decision to detain. We are aware of no authority supporting the curious
suggestion that such implicitly interrelated decisions under the former bond and detention statutes
would or should have been subjected to different standards of appellate review.
¶ 34 Furthermore, we fail to understand why a different standard of review would be
appropriate when, for instance, the trial court sets bail at an astronomical sum as opposed to
denying bail altogether; indeed, such astronomical sums historically served as a denial of bail in
disguise. See People ex rel. Sammons v. Snow, 340 Ill. 464, 469 (1930) (“The amount of $50,000
could have no other purpose than to make it impossible for [the defendant] to give the bail and to
detain him in custody, and is unreasonable.”). A cursory review of the caselaw on bond appeals
demonstrates that the underlying reason for each appeal is that the defendant was detained due to
- 13 -
an inability to post sufficient bond. The suggestion that bond appeals present lesser implications
for the defendant’s liberty than cases involving no-bond detention is simply unsupportable. The
various provisions of the old and new statutes address what is fundamentally a single overarching
inquiry: whether and under what conditions a defendant may be detained prior to trial.
Accordingly, the trial court’s detention decision should be reviewed under a single standard, and
a continuation of the former standard is sensible.
¶ 35 In short, we will continue to abide by our prior holdings that a trial court’s decision
and findings on issues of pretrial detention are appropriately reviewed under the abuse of discretion
standard. See Inman, 2023 IL App (4th) 230864, ¶¶ 10-11. When reviewing the trial court’s
decision for an abuse of discretion, we do not disregard the State’s burden of proving its case by
clear and convincing evidence because, “for a reviewing court to determine whether the trial court
abused its discretion, it must undertake a review of the relevant evidence.” McDonald, 2016 IL
118882, ¶ 32. Moreover, “ ‘[a] trial court abuses its discretion if it fails to apply the proper criteria
when it weighs the facts,’ and a reviewing court ‘must consider both the legal adequacy of [the]
way the trial court reached its result as well as whether the result is within the bounds of reason.’ ”
Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 99 (2006) (quoting Ortega, 209 Ill. 2d
at 360). Therefore, while the abuse of discretion standard is deferential, it affords the defendant
meaningful review and does not amount to a rubber-stamp of the trial court’s decision. Id.; see,
e.g., People v. James, 368 Ill. App. 3d 433, 436 (2006) (applying Ortega and finding that the trial
court abused its discretion). Indeed, we have not hesitated to overturn detention decisions under
the abuse of discretion standard. See, e.g., People v. Atterberry, 2023 IL App (4th) 231028, ¶ 20;
People v. Shaffer, 2024 IL App (4th) 240085-U, ¶ 27; People v. Sims, 2024 IL App (4th) 231335-
U, ¶ 31; People v. Perez, 2024 IL App (4th) 230967-U, ¶ 16.
- 14 -
¶ 36 B. Conditions of Release
¶ 37 Defendant here argues that “the State presented no evidence that a condition of
release ordering treatment for his recent bipolar diagnosis would not mitigate [defendant’s]
dangerousness.” Thus, defendant argues, “the State failed to establish by clear and convincing
evidence that no condition or combination of conditions could mitigate the danger he posed.” Of
course, this court is not directly assessing the State’s evidence and making our own findings; we
are assessing whether the record adequately shows that the trial court acted within its discretion in
making the finding it did.
¶ 38 The initial problem with defendant’s argument is its failure to recognize the
sequence of events. The record here suggests that the State made its proffer before defendant ever
suggested he had recently been diagnosed with bipolar disorder, so it would be unreasonable to
expect the State’s proffer to extend to an undisclosed issue. Defendant fails to explain how the
State was expected, if not required, to present evidence on a matter first disclosed at the hearing.
¶ 39 While the Act provides that the State always has the burden of proving that no
combination of conditions of release is adequate, there is no limit to the number or kind of
reasonable conditions that the trial court can impose. See 725 ILCS 5/110-10(b)(9) (West 2022).
We cannot expect the State to specifically raise and argue against every possible condition of
release in every case; there must be some limiting principle. In general, it is reasonable to anticipate
that the State will address conditions insofar as they relate to the charged conduct, the defendant’s
criminal history, the defendant’s risk assessment score, and any other relevant considerations about
the defendant known to the State at the hearing. See id. §§ 110-6.1(f)(7), 110-10(b) (emphasizing
that decisions regarding conditions of release must be individualized); see also Atterberry, 2023
- 15 -
IL App (4th) 231028, ¶ 19 (holding that the trial court’s findings must relate to the particular
defendant and not a “typical” defendant in similar circumstances).
¶ 40 Here, the State’s central argument against the sufficiency of conditions was
defendant’s past misconduct, including violent misconduct occurring when defendant was on
probation. While defendant’s focus was on his recent mental health diagnosis and his stated
intention to seek treatment, it is hardly surprising that the parties had different views on which
issue was most important when considering conditions of release. It became the trial court’s
responsibility to evaluate each party’s argument and evidence. Ultimately, the court found the
State’s position to be more persuasive, as the court was concerned about defendant’s continuing
misconduct while on probation or pretrial release. This is a highly relevant concern, as a
defendant’s release on conditions depends on the court having confidence that the defendant will
comply with those conditions.
¶ 41 In Martin, 2023 IL App (4th) 230826, ¶ 23, we held that a trial court must make a
record showing that less restrictive conditions of release have been considered so that we can
meaningfully review whether the trial court properly exercised its discretion in denying pretrial
release. But the issue in Martin was that there was no discussion of possible conditions by counsel
or the court, with the trial court summarily declaring that the defendant “ ‘need[ed] to be
detained.’ ” Id. Here, on the other hand, both sides’ attorneys presented arguments on the issue of
conditions. When the court listens to a complete rendition of the parties’ arguments and essentially
sides with one of them, perhaps the imperative for lengthy or detailed findings is diminished. In
the absence of an explicit indication to the contrary, we will presume that the court considered all
available conditions of release on such a record. Cf. People v. Halerewicz, 2013 IL App (4th)
120388, ¶ 43 (taking a similar approach when reviewing a trial court’s sentencing decision).
- 16 -
Regardless, the trial court here did share its specific rationale for finding that conditions could not
adequately address the potential danger posed.
¶ 42 It is true that the trial court did not specifically address defendant’s suggestion that
he should be released to allow for treatment of his recently diagnosed bipolar disorder, but this
case is a far cry from the one relied upon by defendant, People v. Castillo, 2024 IL App (1st)
232315. In Castillo, the defendant proffered evidence about efforts already undertaken to “make
positive changes to herself, including group therapy, substance abuse treatment, and parenting
classes.” Id. ¶ 4. The defendant also showed that she had “secured in-patient treatment” at an
appropriate facility. Id. The trial court denied her pretrial release without addressing her proposed
course of action on release. Here, on the other hand, defendant gave the court only the most cursory
reference to his “recently diagnosed” condition, did not explain how the condition related to the
alleged offenses, and had only a vague plan to seek treatment in the future. The trial court acted
well within its discretion in finding that defendant’s history of noncompliance was more probative
on the issue of the adequacy of conditions for release.
¶ 43 III. CONCLUSION
¶ 44 Because the trial court did not abuse its discretion in ordering defendant detained,
we affirm the court’s judgment.
¶ 45 Affirmed.
- 17 -
People v. Morgan, 2024 IL App (4th) 240103
Decision Under Review: Appeal from the Circuit Court of McLean County, No. 24-CF-
3; the Hon. Amy L. McFarland, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Ross E. Allen, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
- 18 -
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Law
9959300
[SEGMENT 1]
2024 IL App (1st) 240730-U
No. 1-24-0730B
Order filed July 12, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. )
) No. 2023CR1051501
LETERRANCE MITCHELL, )
) The Honorable Sharon Arnold
Defendant-Appellant. ) Kanter (in the stead of the
) Honorable Shelley Sutker-
) Dermer),
) Judge, presiding.
JUSTICE C.A. WALKER delivered the judgment of the court.
Justice Hyman concurred in the judgment. Justice Tailor dissented.
ORDER
¶1 Held: The circuit court abused its discretion where it did not properly consider electronic
home monitoring as a viable alternative to continued pretrial detention. No. 1-24-0730B
¶2 Appellant Leterrance Mitchell appeals the circuit court’s order continuing his pretrial
detention under article 110 of the Code of Criminal Procedure of 1963 (Code) [CITATION], as amended by Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), and Public Act
102-1104, § 70 (eff. Jan 1, 2023) (commonly referred to as the “Safety, Accountability, Fairness
and Equity-Today (SAFE-T) Act” (Act)). On appeal, Mitchell argues the court erred in its
determination that there was no condition or combination of conditions that would reasonably
prevent him from being charged with a subsequent felony or Class A misdemeanor. For the
following reasons, we reverse and remand for the circuit court to consider whether electronic
monitoring is appropriate with the understanding that Mitchell will be monitored even on days
where he is allowed movement pursuant to the Electronic Monitoring and Home Detention Law
(Electronic Monitoring Law). [CITATION].
¶3 BACKGROUND
¶4 Mitchell was arrested on August 27, 2023, and charged with two counts of possession and
display of a fraudulent identification card [CITATION]. The circuit court
released Mitchell on a $4000 bond with additional pretrial release conditions on September 2,
2023. Following the enactment of the Act on September 18, 2023, on October 20, 2023, Mitchell
was arrested for aggravated unlawful use of a weapon (AUUW) [CITATION]. On October 21, 2023, the State filed a petition to revoke pretrial release under section 110-
6 of the Code. The court granted the petition on November 2, 2023, and ordered Mitchell detained.
Mitchell filed a petition seeking pretrial release under section 110-6.1 of the Code on February 14,
2024, and the court held a hearing on the petition the same day.
¶5 The State proffered that on October 20, 2023, Chicago police officers pulled over a driver
in the 6300 block of South Martin Luther King Drive in Chicago. At the time, the driver was
No. 1-24-0730B
providing rideshare services to Mitchell, who was seated in the passenger seat behind him. The
officers observed Mitchell acting nervous and asked if he was concealing anything. After Mitchell
evaded their questions, the officers asked both Mitchell and the driver to exit the vehicle. Mitchell
exited out of the opposite side of the vehicle and fled on foot. The officers chased down and
detained Mitchell. They returned to the vehicle and allegedly found a loaded firearm on the rear
seat. At the time of the arrest, Mitchell did not have a Firearm Owners Identification (FOID) card
or concealed carry (CCL) permit.
¶6 The State noted at the time of the arrest, Mitchell was on first-time weapon offender
probation after he pled guilty to AUUW on March 7, 2023. Mitchell violated his probation when
he was arrested in August 2023. The State argued because Mitchell was arrested twice in a short
time, and his October arrest was his second while on probation, there was no condition or
combination of conditions that would reasonably prevent him from being charged with a
subsequent felony or Class A misdemeanor.
¶7 Mitchell proffered that at the time of the hearing, he was 19 years old and a lifelong resident
of Chicago. He graduated from South Shore International College Preparatory High School and
worked at UPS at the time of his arrest. Mitchell requested the court grant pretrial release so he
could return to his family and work with his counsel as the case continued. He argued electronic
monitoring would be appropriate because the court could monitor when and where he would be at
all times.
¶8 The court denied Mitchell’s petition, finding no condition or combination of conditions
would reasonably prevent him from being charged with a subsequent felony or Class A
misdemeanor. The court stated:
No. 1-24-0730B
“I don’t believe that being on electronic home monitoring, which I did strongly consider,
would prevent this defendant from committing any other offense because the defendant has
shown to me he fled the car in which - - and I’m not taking that fraudulent ID case very
much into my consideration except committing the offense. Electronic home monitoring is
just a bracelet on someone’s ankle. The electronic home monitoring [statute] allows for
two separate days where people would not be on electronic home monitoring where people
are not being monitored. I don’t think - - I think with the defendant being on probation,
being on bond, and then committing this third case, I don’t think there’s anything that I can
do.”
This appeal followed.
¶9 JURISDICTION
¶ 10 Mitchell appeals the circuit court’s order of February 24, 20241. He filed his notice of appeal
on February 28, 2024; thus, the notice was timely, and this court has jurisdiction. See 725 ILCS
5/110-6(a), 110-6.6 (West 2022); Ill. S. Ct. R. 604(h) (eff. Dec. 7, 2023).
¶ 11 ANALYSIS
¶ 12 Upon its enactment, the Act amended the Code by abolishing traditional monetary bail in
favor of pretrial release on personal recognizance or with conditions of release. [CITATION],
¶ 17. Any person previously released on bond shall be allowed to remain on pretrial release under
the terms of their original bail bond; however, if there is an alleged
1
On his Notice of Appeal, Mitchell states to appeal the order entered “February 24, 2024.”
However, the record does not show an order entered by the circuit court on that date. The circuit
court entered its order continuing Mitchell’s detention on February 14, 2024. The notice
incorporates the court’s findings from its February 14, 2024, order. As such, we find this defect to
be one of form and not fatal on appeal. See [CITATION], ¶ 17.
No. 1-24-0730B
violation of those terms, the court shall follow the procedures for revocation of pretrial release
under section 110-6 of the Code. 725 ILCS 5/110-7.5(a), (c)(5) (West 2022).
¶ 13 Under section 110-6(a) of the Code, when a defendant has previously been granted pretrial
release, it may be revoked only if he is charged with a felony or Class A misdemeanor that is
alleged to have occurred during his pretrial release. 725 ILCS 5/110-6(a) (West 2022). The
defendant’s pretrial release may only be revoked after a hearing on the circuit court’s own motion
or upon the filing of a verified petition by the State. Id.
¶ 14 Following revocation, at each subsequent appearance of the defendant before the circuit
court, the court must find that continued detention is necessary to reasonably ensure the appearance
of the defendant for later hearings or to prevent the defendant from being charged with a
subsequent felony or Class A misdemeanor. 725 ILCS 5/110-6(j) (West 2022).
¶ 15 The applicable standard of review for orders revoking pretrial release under section 110-6
of the Code is the same as orders denying pretrial release under section 110-6.1. [CITATION],
¶ 33. While the standard of review for pretrial release orders remains unsettled, this court determined
a “twofold” approach is appropriate where the circuit court’s findings of fact are reviewed under the
manifest weight of the evidence standard, but the ultimate decision regarding pretrial detention
is reviewed for abuse of discretion. [CITATION], ¶¶ 17-18.
¶ 16 At the outset, we observe that the circuit court, during the February 14, 2024, hearing,
seemed to conflate a hearing to revoke pretrial release under section 110-6(a) of the Code with a
[SEGMENT 2]
subsequent appearance under section 110-6(j). In its oral ruling, the court stated that along with
Mitchell’s petition for pretrial release, there was “a previous verified petition [to revoke] by the
State.” The court proceeds to find by clear and convincing evidence that no condition or
No. 1-24-0730B
combination of conditions would reasonably prevent Mitchell from being charged with a
subsequent felony or Class A misdemeanor. This is the standard for an initial revocation hearing
outlined in section 110-6(a) of the Code. However, the legislature is clear that an initial revocation
hearing occurs upon the filing of a verified petition by the State or on the court’s own motion. 725
ILCS 5/110-6(a) (West 2022).
¶ 17 Here, the circuit court had already heard and adjudicated the State’s petition on November
2, 2023, and in doing so, the court found by clear and convincing evidence that “no condition or
combination of conditions of release would reasonably *** prevent the defendant from being
charged with a subsequent Felony or Class A Misdemeanor.” Because Mitchell appeared before
the court after it adjudicated the State’s petition, the February 14, 2024, hearing was a “subsequent
appearance” under section 110-6(j) of the Code.
¶ 18 We find the analysis in [CITATION], instructive. In [CITATION], the court ordered a defendant detained after the State filed a petition to deny pretrial
release. Id. ¶ 4-5. Following the hearing, the defendant filed a petition for pretrial release. Id. ¶ 7.
At the hearing on the defendant’s petition, the circuit court found that the State met its evidentiary
burden for detention under section 110-6.1 of the Code and ruled that the defendant’s detention
would continue. Id. ¶ 12.
¶ 19 On appeal, the [CITATION] court noted the Code expressly differentiates between an initial
detention hearing and a subsequent appearance. [CITATION]. The
court explained that even though the circuit court made findings consistent with the standard for
initial detention, those findings were improper as there was no verified petition for detention
pending, as is required under section 110-6.1. Id. ¶ 21. The court concluded that any proceedings
for an initial detention hearing at a subsequent appearance were a nullity. Id. ¶ 21. The only issue
No. 1-24-0730B
at a subsequent appearance is whether continued detention was necessary under the Code. Id. ¶ 22.
However, if the circuit court ultimately found that continued detention was necessary, then its
ruling would be consistent with the subsequent appearance standard, even if it couched its findings
in terms of an initial detention determination. Id.
¶ 20 Here, the circuit court found detention was necessary because it had a mistaken belief
regarding electronic home monitoring. Therefore, the issue here is whether the circuit court
properly considered electronic home monitoring a viable alternative to continued detention.
¶ 21 We note that at the February 14, 2024, hearing, Mitchell informed the circuit court that he
had been detained between October 2023 and February 2024, and he assured the court he would
“walk a straighter line” upon release. He highlighted his age and contented alleged flight from
police during the October 2023 incident was due to his immaturity. Mitchell asked to be placed on
electronic home monitoring emphasizing that electronic monitoring provides more restrictions on
movement than pretrial release. Upon questioning from the court, the State noted that prior to the
October 2023 incident, Mitchell did not have any issues while he was on pretrial release.
¶ 22 In its ruling, the circuit court stated that it “strongly” considered electronic monitoring but
rejected it as it allowed for “two separate days where . . . people are not being monitored.” Because
of these two days where Mitchell would not be monitored, and considering the October 2023
incident occurred while he was on probation, the court ruled there were no lesser conditions to
prevent him from committing a subsequent felony or Class A misdemeanor. But the court’s finding
of there being “two separate days where . . . people are not being monitored” is an incorrect
interpretation of the Electronic Monitoring Law. In construing a statute, this court must ascertain
and give effect to the intent of the legislature. [CITATION]. To determine
the legislature’s intent, the reviewing court must first examine the language of the statute, which
No. 1-24-0730B
is the most reliable indicator of its intent. Id. If the statutory text is clear and unambiguous, it
should be given effect as written, without reading into it, exceptions, limitations, or conditions that
the legislature did not express. [CITATION]. The construction
of a statute is a question of law, reviewed de novo. [CITATION]. Under the Electronic Monitoring Law, “at a minimum, any person ordered to
pretrial home confinement with or without electronic home monitoring must be provided with
movement spread out over no fewer than two days to participate in basic activities.” 730 ILCS 5/5-
8A-4(A-1) (West 2022). The statute limits “basic activities” to those listed under 730 ILCS 5/5-
8A-4(A). Id. The activities include:
“(1) working or employment approved by the court or traveling to or from approved
employment;
(2) unemployed and seeking employment approved for the participant by the court;
(3) undergoing medical, psychiatric, mental health treatment, counseling, or other treatment
programs approved for the participant by the court;
(4) attending an educational institution or a program approved for the participant by the
court;
(5) attending a regularly scheduled religious service at a place of worship;
(6) participating in community work release or community service programs approved for
the participant by the supervising authority;
(7) for another compelling reason consistent with the public interest, as approved by the
supervising authority; or
(8) purchasing groceries, food, or other basic necessities.”
¶ 23 While section 5-8A-4(A-1) may allow a defendant two days to conduct basic activities
outside of his residence, it does not state that the defendant is “not being monitored.” We find that
section 5-8A-4(D) requires a defendant to be monitored “at any time” for the purpose of verifying
compliance with electronic home monitoring. 730 ILCS 5/5-8A-4(D) (West 2022). In addition, the
defendant must maintain access to a working telephone and a monitoring device either in his home
or on his person. Id. § 5-8A-4(E). While a defendant has two days to attend places such as a
doctor’s appointment or a religious service, which may be outside of the locations specifically
```plaintext
No. 1-24-0730B
listed in his electronic monitoring order, he must still maintain communication with the agency
who is managing the program. Reading the plain and unambiguous language of the statute, the
legislature did not intend for defendants on electronic monitoring to have two days where they are
not monitored. We find that under section 5-8A-4(A-1), while a defendant must have two days
where he may move from his residence, his movement is limited to the “basic activities” listed in
section 5-8A-4(A).
¶ 24 Given our interpretation of the Electronic Monitoring Law, we hold the circuit court erred
in finding that “electronic home monitoring allows for two separate days where people would not
be on electronic home monitoring where people are not being monitored.” We also hold that the
court abused its discretion in finding, “I don’t think there’s anything that I can do and any least
restrictive condition that would prevent this defendant from committing yet another subsequent
felony or class A misdemeanor.”
¶ 25 The issue before this court is not whether electronic monitoring will or will not be effective,
instead the issue is whether the circuit court properly considered electronic monitoring as an
alternative to detention as required by the Code. The dissent asserts that the court found that
electronic monitoring would be ineffective due to Mitchell’s history. But instead, the court found
electronic monitoring ineffective because it misinterpreted the Electronic Monitoring Law.
According to the record, Mitchell was never placed on electronic monitoring. The court mistakenly
believed that Mitchell would have two days where he would not be monitored, similar to his prior
pretrial release. Because of this mistaken belief, the court found that no “least restrictive condition.
. . would prevent [Mitchell] from committing yet another felony or Class A misdemeanor.” As
previously stated, under electronic monitoring, Mitchell would always be monitored.
``` No. 1-24-0730B
¶ 26 Because the circuit court mistakenly believed that electronic home monitoring would allow
“two separate days where . . . people are not being monitored,” it did not properly consider
electronic monitoring as an alternative to detention as required. Based on the court’s comments,
the court misunderstood the law, and that cannot be ignored. Therefore, we reverse and remand
for the court to consider the effectiveness of electronic monitoring. [CITATION]
114044, ¶ 31 (“Error is committed when a trial court refuses to exercise its discretion in the
erroneous belief that it has no discretion as to the question presented” (citing [CITATION])).
[SEGMENT 3]
¶ 27 Finally, we echo the words of the circuit court, and note that we see much potential within
Mitchell. We note the immaturity that may arise from a 19 year old such as Mitchell, and hope that
at the end of this process, he turns his life around, continues his education, and reaches his full
potential. We remand this matter and take no position on what the ruling of the circuit court should
be.
¶ 28 CONCLUSION
¶ 29 We reverse the circuit court’s February 14, 2024, order and remand for the court to
reconsider whether Mitchell should be placed on electronic home monitoring.
¶ 30 Reversed and remanded.
¶ 31 JUSTICE TAILOR, dissenting:
¶ 32 The trial court did not abuse its discretion when it determined that continued detention was
necessary to prevent Mitchell from being charged with a subsequent felony or Class A
misdemeanor. To support its determination, the court noted that Mitchell had been placed on “first
offender gun probation” after pleading guilty to AUUW on March 7, 2023. Less than six months
later, Mitchell was arrested again and charged with possession of multiple fraudulent or fictitious
No. 1-24-0730B
identification cards. The court noted that the probation judge could have held Mitchell for violating
the terms of his probation at that time, but instead “decided to place [his] trust [in Mitchell] that
he would do what was asked, but most importantly, *** not commit any new cases.” Mitchell was
granted bond on September 2, 2023, but was arrested again less than two months later after a 9-
millimeter semiautomatic loaded firearm was found on the seat of a vehicle where he had been
sitting just minutes after he exited the vehicle and fled from police. He was then charged with
AUUW, his second gun offense. After reviewing Mitchell’s criminal history, the court stated:
“So what I have before me is an individual who was on gun probation, picked up a new
case, a new Class 4 felony, was given the immense trust to be released on that bail on that
Class 4 felony, and then flaunted that trust of the community and committed another gun
case merely 48 days after being released on *** bond. Why I believe that there are no
conditions or combination of conditions that would reasonably prevent this defendant from
being charged with a subsequent felony or Class A misdemeanor is that the defendant was
on probation for a gun and then picked up two new cases.”
The court went on:
“The defendant was released on the first case, given that opportunity to show the Court
again that he would not be charged with a subsequent felony or Class A misdemeanor, that
he could be trusted to be amongst the community and follow the rules as were required not
only by his probation but by his bond slips, and then 48 days later picked up not just any
Class 4 felony but a gun case with a 9-millimeter semiautomatic handgun.”
¶ 33 After stating that it had “strongly consider[ed]” electronic home monitoring, the court
determined that it would not prevent Mitchell from committing any other offense because he had
“flaunted th[e] trust” the court had placed in him and repeatedly demonstrated that he “didn't
No. 1-24-0730B
follow the rules.” The majority singles out the court’s comment that “electronic home monitoring
allows for two separate days where people would not be on the electronic home monitoring where
people are not being monitored” and concludes that this demonstrates the court’s “incorrect
interpretation of the Electronic Monitoring and Home Detention Law” as well as the court’s belief
that Mitchell would not be monitored at all for two days each week. However, I read the court’s
comments as evincing its belief that if Mitchell was placed on electronic monitoring, he would be
permitted to leave the home and go out into the community two days out of every week, where he
would be likely to reoffend. When the record is read as a whole, it is clear that the court considered
electronic monitoring as an option for Mitchell but rejected it, not because of any misunderstanding
of the law, but due to Mitchell’s demonstrated unwillingness to comply with court rules and orders.
The court noted that Mitchell had already been given probation and been released on bond, and
that as a condition of that bond, he had been required not to commit any additional criminal
offenses, and yet he reoffended less than two months later. Accordingly, I find that the majority’s
conclusion—that the trial court “believed that electronic home monitoring was not an option”—is
belied by the record. Ample evidence in the record supported the court’s decision to continue to
detain Mitchell here, including his previous history of violating and disobeying court orders and
reoffending while on probation and on bond. Therefore, I would find no abuse of discretion and
would affirm the trial court’s order.
¶ 34 I respectfully dissent.
2024 IL App (1st) 240808-U
No. 1-24-0808B
Order filed July 10, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 23C44045101
)
PHILLIP GORDAN ) The Honorable
) Eulalia V. De La Rosa,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Justices C.A. Walker and Tailor concurred in the judgment.
ORDER
¶1 Held: Affirmed. The circuit court did not err by detaining the defendant before trial.
¶2 Rarely do allegations alone lead this court to reverse. Generally, parties must show how
alleged errors affected the proceedings. Here, Phillip Gordan fails to offer either caselaw or record
facts when attacking a handful of alleged “problem[s]” and “mishaps” at his revocation proceeding
under article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West
2022)), as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial
Fairness Act. Because the proceedings fit the Code, even if imperfect, we affirm. No. 1-24-0808B
¶3 Background
¶4 The State petitioned to revoke Gordan’s pretrial release, alleging he had escaped from
electronic monitoring. See [CITATION]. The State claimed to have clear and
convincing proof that nothing short of pretrial detention would reasonably prevent him from
committing subsequent felonies or Class A misdemeanors or ensure his future appearance in court.
¶5 At a hearing on the petition, the State proffered facts describing Gordan’s alleged escape.
While on electronic monitoring, Gordon resided with a host and that person’s 10-year-old
daughter. But both left after he attacked the child by kicking her, punching her, and threatening
her with a box cutter. The host called the police to withdraw consent for Gordan to live there.
When officers arrived, they found only the electronic monitoring bracelet. Months later, officers
arrested Gordon. The State charged him with the felony of escape.
¶6 The State detailed Gordan’s history of convictions and failures to appear in court. He had
felony convictions for aggravated unlawful use of a weapon by a felon, possession of a controlled
substance, domestic battery, and armed robbery, as well as misdemeanor convictions for
aggravated assault and domestic battery. He failed to appear once in this prosecution and five times
in unidentified matters from 2019 to 2022.
¶7 Gordan proffered that he is 38 years old, a lifelong Maywood resident, has six children,
and last lived with his mother. He is employed as a food distributor. He has posttraumatic stress
disorder, bipolar disorder, depression, and mania. He cut off his electronic monitoring bracelet
while “trying to get his [electronic monitoring] location moved at the time.”
¶8 The trial court prompted the State to proffer about the underlying offense, being an armed
habitual criminal ([CITATION]), for which Gordan had initially secured No. 1-24-0808B
pretrial release. The trial court then found that the State had carried its burden to prove Gordan
should be denied pretrial release (725 ILCS 5/110-6.1(e) (West 2022)) rather than carrying its
burden to prove he should have his pretrial release revoked (id. §110-6(a)).
¶9 Clear and convincing evidence showed (i) it was evident or the presumption great that
Gordan had committed a detainable offense, (ii) Gordan was a real and present threat to the child
he “threatened and physically hurt,” and (iii) no condition or combination of conditions could
mitigate the threat he posed. The trial court found, “We tried it[,] and it did not work. He was given
[SEGMENT 4]
electronic monitoring, * * * cut the bracelet off[,] and picked up a new case.” Gordan’s past and
present criminal acts, and “the totality of everything present[ed],” demanded pretrial detention.
¶ 10 Gordan filed a notice of appeal, attacking the trial court’s findings on the second and third
elements under section 110-6.1(e). In his view, he presented no threat because being an armed
habitual criminal is not a “crime of violence,” and the allegation that he attacked a child was
“unproven.” Also, electronic monitoring would mitigate any future threat he poses because, at one
point, he “had been in compliance with the terms and conditions of electronic monitoring[.]”
¶ 11 He faults the trial court for denying him pretrial release under section 110-6.1(e) rather
than revoking his pretrial release under section110-6(a). He also asserts the trial court “did not rule
on” whether he was likely to appear at later hearings. Finally, he notes that the State cited section
110-6(b), not section 110-6(a), when petitioning to revoke his pretrial release.
¶ 12 Analysis
¶ 13 Gordan did not file a Rule 604(h) memorandum. In a notice in lieu of that memo, he
purports to re-assert the claims in his notice of appeal and attacks the preprinted forms the State
No. 1-24-0808B
and trial court used. We reject his contentions. As we explain, the proceedings in the trial court fit
the Code, even if imperfect.
¶ 14 Petition to Revoke Pretrial Release under Section 110-6(a)
¶ 15 The State may detain an accused by charging an offense eligible for detention and carrying
its burden to prove three elements under the Code. Id. § 110-6.1(e). But if the State fails to carry
this burden, the trial court may still revoke pretrial release at a later hearing on a verified petition
to revoke. Id. § 110-6(a).
¶ 16 In pertinent part, revocation proceedings may begin after “the defendant is charged with a
felony or Class A misdemeanor that is alleged to have occurred during the defendant’s pretrial
release[.]” Id. § 110-6(a). While Gordan was on pretrial release, the State charged him with the
felony of escape (730 ILCS 5/5-8A-4.1(a) (West 2022)) and petitioned to revoke his pretrial
release. Consistent with the Code, the trial court held a hearing on the State’s petition.
¶ 17 Generally, the Code demands that during the hearing the trial court “consider all relevant
circumstances, including, but not limited to, the nature and seriousness of the violation or criminal
act alleged.” 725 ILCS 5/110-6(a) (West 2022). Here, the trial court properly did so when broadly
considering the proffered facts leading to the escape: Gordan’s attack on a child. Likewise, the
trial court properly considered how Gordan cut the bracelet of his monitor and disappeared. Indeed,
the trial court pithily summarized this evidence by asserting, “We tried it[,] and it did not work.
He was given electronic monitoring, * * * cut the bracelet off[,] and picked up a new case.” See
generally [CITATION]
No. 1-24-0808B
¶ 18 To be sure, the State bore “the burden of proving, by clear and convincing evidence, that
no condition or combination of conditions of release would reasonably ensure the appearance of
the defendant for later hearings or prevent the defendant from being charged with a subsequent
felony or Class A misdemeanor.” Id. § 110-6 (a). But the State carried that burden by proffering
how, on six occasions, Gordan had failed to appear in court and how, immediately after attacking
the child, he had absconded for months. See [CITATION], ¶ 12 (defining burden of proof). Indeed, Gordan admitted to unlawfully cutting the bracelet. Thus, as
the trial noted, “the totality of everything present[ed]” demanded pretrial detention.
¶ 19 Gordan’s Challenge under Section 110-6.1(e)
¶ 20 In his notice of appeal, Gordan attacks the trial court’s findings on the second and third
elements under section 110-6.1(e). But Gordan misplaces these contentions. As we explained, the
State petitioned to revoke his pretrial detention under section 110-6(a), not section 110-6.1(e).
Those sections define distinct procedures. Compare 725 ILCS 5/110-6.1(e) (West 2022)
(describing burden on initial petition to deny pretrial release) with id. §110-6.1(a) (defining
proceedings on later petition to revoke pretrial release).
¶ 21 Yet Gordan’s notice of appeal does not refer to section 110-6(a) and leaves blank a box for
challenging the trial court’s findings under section 110-6(a). Thus, we agree with the State that
Gordan forfeited this challenge under 110-6(a). See [CITATION], ¶¶ 18-19 (under supreme court rules, we “must limit our review to the issues fairly raised by a
liberal construction of defendant’s notice of appeal”). “No matter how liberally we construe [his]
notice of appeal, it does not encompass” relevant issues. [CITATION], ¶ 19.
¶ 22 Gordan’s Challenge under Section 110-6(a)
No. 1-24-0808B
¶ 23 In his notice in lieu of a memo, Gordan purports to re-assert the claims in his notice of
appeal and attacks the preprinted forms the State and trial court used. We reject his contentions as
lacking factual and legal support.
¶ 24 First, we reject, as contrary to the record, Gordan’s assertion that his notice of appeal
“properly demonstrate[s] why conditions [of pretrial release] would suffice rather than a
revocation” under section 110-6(a). As we explained, Gordan’s notice of appeal focuses on an
impertinent section under the Code, section 110-6.1(e). Saying otherwise does not make it so. See
[CITATION].
¶ 25 Next, we reject Gordan’s nitpicking of the preprinted form the State used. Gordan notes
the State cited section 110-6(b), not section 110-6(a), when petitioning to revoke his pretrial
release. As the State explains, the body of its petition proves this to be a scrivener’s error. [CITATION]. The body of the petition
alleges that Gordan, “while on pretrial release for a Felony or Class A misdemeanor, [was] charged
with a new Felony or Class A misdemeanor * * * alleged to have occurred during * * * pretrial
release.” As relief, the State requests “a revocation hearing” to prove “by clear and convincing
evidence, that no condition or combination of conditions of release would reasonably” ensure the
defendant’s appearance for later hearings or “prevent the defendant from being charged with a
subsequent Felony or Class A Misdemeanor.” This language applies only to revocation hearings
under section 110-6(a). Compare 725 ILCS 5/110-6(a) (West 2022) with id. §110-6.1(b).
¶ 26 Finally, Gordan faults the trial court for denying him pretrial release under section 110-
6.1(e) rather than revoking his pretrial release under section 110-6(a). He likewise asserts the trial
No. 1-24-0808B
court “did not rule on” whether he was likely to appear at later hearings. But this improperly
focuses on the trial court’s invocation of section 110-6.1(e) to the exclusion of its findings of fact.
¶ 27 The State presented an unrebutted proffer how, six times before, Gordan had failed to
appear in court and how, right after attacking a child, he had absconded for months. In this context,
to repeat, the trial court found: “We tried it[,] and it did not work. He was given electronic
monitoring, * * * cut the bracelet off[,] and picked up a new case.” Likewise, the trial court found
that Gordan’s past and present criminal acts and “the totality of everything present[ed]” demanded
his pretrial detention. Thus, the trial court ruled on the core issue under section 110-6(a).
¶ 28 Conclusion
¶ 29 Parties must show how alleged “problem[s]” or “mishaps” affected the proceedings.
Gordan has failed to make that showing.
¶ 30 Affirmed.
NOTICE
IL App (4th) 240589-U
This Order was filed under
FILED
July 9, 2024
Supreme Court Rule 23 and is NO. 4-24-0589 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
[SEGMENT 5]
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Rock Island County
TYRELL DERRIOUS COOPER, ) No. 24CF244
Defendant-Appellant. )
) Honorable
) Frank R. Fuhr,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Justice Harris concurred in the judgment.
Justice Doherty dissented.
ORDER
¶1 Held: The trial court’s pretrial detention order was vacated, and the cause was remanded
for a new hearing to determine the least restrictive conditions for defendant’s
pretrial release, where defendant’s detention hearing was not held within 48 hours
of his initial appearance.
¶2 Defendant, Tyrell Derrious Cooper, appeals an order denying him pretrial release
pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110
(West 2022)), hereinafter as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known
as the Pretrial Fairness Act. On appeal, defendant argues that the trial court erred in denying him
pretrial release because it failed to hold a detention hearing on the State’s petition within 48 hours of his initial appearance. For the following reasons, we vacate the detention order and remand for
further proceedings.
¶3 I. BACKGROUND
¶4 On Saturday, March 30, 2024, the State charged defendant with aggravated battery
(720 ILCS 5/12-3.05(e)(1) (West 2022)), aggravated discharge of a firearm (720 ILCS 5/24-
1.2(a)(2) (West 2022)), and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.2(a)(2)
(West 2022)). The State also filed a petition to deny defendant pretrial release pursuant to section
110-6.1 of the Code (725 ILCS 5/110-6.1 (West 2022)). In its petition, the State alleged that
defendant’s pretrial release posed a real and present threat to the safety of any person or persons
or the community.
¶5 Also on March 30, 2024, defendant made his first appearance in court at 10:58 a.m.
The prosecutor noted that he had filed a petition to detain defendant and asked, “that the hearing
be set for Monday at 1:30.” The prosecutor added, “We believe that would be within the time
frame allowed by statute.” Defendant’s counsel responded, “we’d ask for immediate, but did
receive notice of the hearing for Monday.” The trial court set the hearing for Monday, April 1,
2024.
¶6 The pretrial detention hearing proceeded as scheduled on April 1, 2024. We discuss
only those facts relevant to the issue on appeal. During the hearing, defendant’s counsel moved to
strike the State’s petition to deny defendant pretrial release because, pursuant to [CITATION], the detention hearing was untimely. Counsel
acknowledged the trial court’s belief that [CITATION] did “not apply to periods, including
holidays and weekends,” but argued that “detention petitions must be heard in this case within 48
hours of their filing [sic].” Counsel explained that defendant was charged with offenses that were
“Class 3 or higher” and that section 110-6.1(c)(2) of the Code (725 ILCS 5/110-6.1(c)(2) (West
2022)) imposed a “strict 48-hour rule.” Accordingly, since the petition was filed “in the morning
of Saturday, March 30th,” and the detention hearing was taking place on “April 1st in the
afternoon,” the hearing was untimely. The court denied defendant’s motion to strike the State’s
petition and proceeded with a detention hearing. At the conclusion of the hearing, the court granted
the State’s petition and ordered defendant’s detention.
¶7 Defendant filed a timely notice of appeal. Thereafter, defendant and the State filed
memoranda detailing their arguments.
¶8 II. ANALYSIS
¶9 On appeal, defendant argues in his memorandum that the trial court erred in
granting the State’s petition to deny him pretrial release because the detention hearing was not held
in accordance with the timing requirements of section 110-6.1(c)(2) of the Code. In response, the
State contends that defendant suffered no prejudice, as the hearing took place only “shortly after
the 48-hour timeframe passed.” We note that defendant raises other grounds for relief in his notice
of appeal, challenging the court’s findings with respect to the merits of the State’s detention
petition. However, the issue defendant raises in his memorandum is dispositive of this appeal.
¶ 10 When interpreting a statute, our goal is to ascertain and give effect to the intent of
the legislature, which is best determined by the language of the statute, given its plain and ordinary
meaning. [CITATION]. We review issues of statutory
interpretation de novo. [CITATION]
¶ 11 Section 110-6.1(c)(2) provides, in relevant part, that upon the filing of a petition to
deny a defendant pretrial release, the trial court:
“shall immediately hold a hearing on the petition unless a continuance is requested.
If a continuance is requested and granted, the hearing shall be held within 48 hours
of the defendant’s first appearance if the defendant is charged with first degree
murder or a Class X, Class 1, Class 2, or Class 3 felony.” 725 ILCS 5/110-6.1(c)(2)
(West 2022).
¶ 12 In [CITATION], we determined that the language of section 110-6.1(c)(2) was
“clear and unambiguous, and we must interpret it according to its terms.” [CITATION], ¶ 11. Accordingly, we explained that the statute “clearly requires trial
courts to conduct a hearing on the State’s petition to deny a defendant pretrial release within 48
hours of the defendant’s initial appearance; it does not exclude weekends or holidays when
computing time deadlines.” [CITATION], ¶ 11. As such, we
held that the trial court failed to comply with section 110-6.1(c)(2) where, following the
defendant’s initial appearance on December 24, 2023, the court, upon granting a continuance, did
not hold a detention hearing until December 27, 2023—after the 48-hour deadline. [CITATION], ¶¶ 12-13.
¶ 13 Here, defendant was charged with aggravated battery, a Class X felony; aggravated
discharge of a firearm, a Class 1 felony; and unlawful possession of a weapon by a felon, a Class
3 felony. Based upon the clear language of section 110-6.1(c)(2), the trial court was required to
hold a hearing on the State’s petition to deny release either “immediately,” if no continuance was
requested, or “within 48 hours of the defendant’s first appearance” if a continuance was requested.
725 ILCS 5/110-6.1(c)(2) (West 2022). Defendant’s initial appearance occurred in the morning on
March 30, 2024. After continuing the matter at the prosecutor’s request, the court did not hold a
detention hearing until the afternoon of April 1, 2024, outside the 48-hour time frame.
Accordingly, the court failed to comply with the timing requirements in section 110-6.1(c)(2).
¶ 14 The State argues defendant’s reliance on McCarthy-Nelson is misguided. Instead,
the State argues we should apply such cases as [CITATION], and [CITATION],
and find that any delay following the expiration of the 48-hour period was so minor that
defendant suffered no prejudice. However, these cases are distinguishable. None of them applied
section 110-6.1(c)(2); instead, they involved different statutory timing provisions that included
additional language not contained in section 110-6.1(c)(2). Specifically, [CITATION] and [CITATION]
concerned whether section 109-1(a) of the Code (725 ILCS 5/109-1(a) (West 2022)) had been
violated where the defendants were not brought before a judge within 48 hours of their arrests.
[CITATION], ¶ 10. That
section provides, in part, that a person who is arrested “shall be taken without unnecessary delay
before the nearest and most accessible judge in that county *** within 48 hours, and a charge shall
be filed.” 725 ILCS 5/109-1(a) (West 2022). In both cases, the courts determined that the inclusion
of the language “without unnecessary delay” in section 109-1(a) allowed some latitude in fulfilling
the 48-hour deadline, such that the statute was not violated. [CITATION], ¶ 13.
¶ 15 Similarly, [CITATION] concerned whether section 110-6(a) of the Code (725 ILCS 5/110-
[SEGMENT 6]
6(a) (West 2022)) was violated where the defendant’s detention hearing was not held within 72
hours of the State filing a petition to revoke pretrial release. [CITATION], ¶ 10. Section 110-6(a) provides, in part, that upon the State’s petition to revoke a defendant’s
pretrial release, “[t]he defendant shall be transferred to the court before which the previous matter
is pending without unnecessary delay, and the revocation hearing shall occur within 72 hours of
the filing of the State’s petition.” 725 ILCS 5/110-6(a) (West 2022). The court rejected “a strict
mandatory construction of the 72-hour requirement,” finding that a “one-day delay does not thwart
the legislative intent to hold a prompt hearing before the judge most familiar with the matter.”
[CITATION], ¶¶ 21-22. The court determined that the statute was “directory
only,” as it contained no negative language prohibiting further action if a hearing is not held within
72 hours of the filing of the State’s petition, and therefore, “no consequence is warranted *** under
the particular facts of this case.” [CITATION], ¶¶ 20, 23.
¶ 16 Unlike [CITATION], and [CITATION], this case involves section 110-6.1(c)(2),
which does not contain the additional language “without unnecessary delay” present in the statutes
at issue in those cases. Indeed, [CITATION] undercuts the State’s argument, as that case explicitly
referenced section 110-6.1(c)(2) and determined it was “mandatory” and “includes no exceptions”
to the 48-hour period. [CITATION], ¶ 16. Additionally, beyond noting
the holding in [CITATION] that the court found section 110-6(a) to be directory only, the State develops
no argument as to whether the command of section 110-6.1(c)(2) is mandatory or directory. Given
the foregoing, the State provides no convincing argument for why we should depart from our
reasoning in [CITATION], and thus, we decline to do so. See [CITATION], ¶¶ 14, 21 (applying [CITATION]'s reasoning and concluding that the
defendant’s detention hearing was not held within the 48-hour time frame imposed by section 110-
6.1(c)(2)).
¶ 17 Accordingly, we conclude that the trial court erred in failing to hold a detention
hearing within 48 hours of defendant’s first appearance. In [CITATION], we determined that
the appropriate remedy for a failure to comply with the timing requirements of section 110-
6.1(c)(2) is to remand the case for a hearing to determine the least restrictive conditions of the
defendant’s pretrial release. [CITATION] Thus, we
choose to apply that remedy here. On remand, the court will be required to impose the mandatory
conditions listed in section 110-10 (725 ILCS 5/110-10 (West 2022)), and it may impose any
additional appropriate conditions consistent with that section that will ensure that defendant
appears in court, does not commit any criminal offense, and complies with all conditions of pretrial
release.
¶ 18 III. CONCLUSION
¶ 19 For the reasons stated, we vacate the trial court’s detention order and remand with
directions that the court promptly set the case for a hearing to determine the least restrictive
conditions of defendant’s pretrial release.
¶ 20 Vacated and remanded with directions.
¶ 21 JUSTICE DOHERTY, dissenting:
¶ 22 This case is fundamentally about the proper interpretation of these 13 words in the
statute at issue: “the hearing shall be held within 48 hours of the defendant’s first appearance.”
725 ILCS 5/110-6.1(c)(2) (West 2022). I agree with defendant, the majority, and [CITATION]
that weekends and holidays are not deducted from the computation of this time period. Here, the
hearing at issue occurred (or, at least, was scheduled to occur) approximately 90 minutes after the
expiration of the 48-hour period, so the statute was not strictly complied with.
¶ 23 For his part, defendant assumes that the relief to which he is entitled as a result of
this delay is reversal of the order for his detention and a remand for purposes of effecting his
release on conditions. The State, on the other hand, argues that defendant’s hearing was “fair and
proper” and that, because he was not prejudiced by the short delay, he is not entitled to release.
The State relies on several cases interpreting analogous statutory provisions under the detention
statute; each of these cases considers whether actions being taken after expiration of the applicable
time limit addressed in those cases requires the defendant to be released, rather than detained.
¶ 24 Of the decisions relied on by the State, the only published decision is [CITATION], where
a petition to revoke the defendant’s pretrial release was conducted outside of the specified 72-hour
time limit set forth in the statutory provision. The statute in question provides as follows: “The
defendant shall be transferred to the court before which the previous matter is pending without
unnecessary delay, and the revocation hearing shall occur within 72 hours of the filing of the
State’s petition or the court’s motion for revocation.” 725 ILCS 5/110-6(a) (West 2022). The court
in [CITATION] concluded that a one-day delay past the deadline for conducting the revocation hearing
did not entitle the defendant to his release. [CITATION], 2024 IL App (1st) 240211, ¶ 23. As noted here
by the State, the [CITATION] court specifically considered whether the statute was “mandatory” or
“directory,” i.e., whether the failure to comply with a particular procedural step will, or will not,
have the effect of invalidating the government action to which the requirement relates. Id. ¶ 17
(citing [CITATION] noted that the mandatory-directory dichotomy “presents a question of
statutory construction,” which is addressed de novo on appeal. Id. As noted in [CITATION], it is
presumed that “a procedural command to a government official indicates an intent that the statute
is directory.” Id. ¶ 18. The presumption is overcome when either of two conditions is present:
(1) where the statute prohibits further action in the case of noncompliance or (2) where the right
the provision is designed to protect “would generally be injured under a directory reading.” Id.
¶ 26 I believe that the approach articulated in [CITATION] reflects the application of well-
established principles of statutory construction which are equally applicable here. First, the proper
analysis begins with the presumption that the statute, which here is directed toward a government
official (i.e., the trial court), is directory because it dictates a procedural step the court must take.
See [CITATION], ¶ 29 (examining a statutory requirement that the Department of Public Health must hold
a discharge hearing within 10 days).
¶ 27 The next step in the analysis is to consider the two factors noted above. First, the
statute contains no “language prohibiting further action, nor does it provide a specific consequence
for noncompliance with its time limits.” See id. ¶ 35. “Had the legislature intended a mandatory
reading,” it could have specified a consequence for exceeding the 48-hour requirement. See [CITATION], ¶ 20. The lack of a specified consequence under this factor does not
rebut the presumption that the statutory command is directory.
¶ 28 The second factor to be examined is whether the rights protected by the 48-hour
requirement “would generally be injured by a directory reading.” [CITATION], ¶ 38. Here, a trial court’s general compliance with the 48-hour requirement will inure to
the benefit of those in the class to which defendant belongs: defendants looking to have the
question of detention settled promptly. In the case of a specific defendant whose detention hearing
is delayed beyond 48 hours, however, there is no loss in terms of the defendant’s substantive rights
on the issue of detention; the only issue is the delay—in this case a very short one—in having
those rights addressed.
¶ 29 Moreover, while the statute provides for a presumption in favor of the pretrial
release of accused defendants (725 ILCS 5/110-6.1(e) (West 2022)), a trial court’s detention
decision also requires it to address concerns about whether release would pose “a real and present
threat to the safety of any person or persons or the community.” Id. § 110-6.1(1.5). In other words,
both the rights of the accused and the rights of the community are at stake. A directory
interpretation of the 48-hour requirement would not defeat defendant’s rights, but a mandatory
interpretation would defeat the community’s expectation that public safety will be considered
before a defendant is released. I conclude that this factor also does not weigh against the normal
presumption that the 48-hour time requirement is directory. Accord [CITATION]
¶ 30 Because neither of the two relevant factors weighs against the presumption that the
48-hour time limit is directory, I conclude that the statutory requirement of a 48-hour time limit is
directory, not mandatory. In other words, I do not assume, as defendant and the majority do, that
[SEGMENT 7]
the automatic remedy for exceeding the 48-hour period is defendant’s release. Based on the short
delay at issue in this case, I would affirm the trial court’s detention order.
¶ 31 In closing, I note that I am “not discouraging the timely disposition of hearings
under” section 6.1(c)(2). See [CITATION]. Courts should endeavor to
hold all such hearings within the prescribed 48 hours. It is also foreseeable, however, that in some
situations—such as the one here, where the 48-hour period following a Saturday morning first
appearance lapsed just before noon on Monday—strict adherence to the time limit will present a
logistical challenge to trial courts. Holding a hearing early Monday afternoon instead of late
Monday morning should not be fatal to the court’s obligation to address the detention issues on
their merits. The statute compels no such result.
- 10 -
2024 IL App (5th) 240390-U
NOTICE
NOTICE
Decision filed 06/18/24. The
This order was filed under
text of this decision may be NO. 5-24-0390
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Macon County.
)
v. ) No. 23-CF-1567
)
MICHAEL A. SMOLLEY, ) Honorable
) Shane Mendenhall,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court.
Justices Moore and Barberis concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s order revoking the defendant’s pretrial release where
we find no reversible error based on the timing of the revocation hearing, the circuit
court’s finding that no condition or combination of conditions would prevent the
defendant from committing subsequent felonies or Class A misdemeanors was not
against the manifest weight of the evidence, and the revocation order was not an
abuse of discretion.
¶2 The defendant, Michael A. Smolley, appeals the February 29, 2024, order of the circuit
court of Macon County granting the State’s petition to revoke pretrial release and ordering him
detained pursuant to the Safety, Accountability, Fairness and Equity Today (SAFE-T) Act (Act). 1
The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither name
is official, as neither appears in the Illinois Compiled Statutes or public act. [CITATION],
¶ 4 n.1.
[CITATION] (lifting stay and setting effective date as September 18,
2023). For the following reasons, we affirm the order of the circuit court of Macon County. 2
¶3 I. BACKGROUND
¶4 On October 18, 2023, the State charged the defendant by information with driving a motor
vehicle while his license was revoked, having been previously convicted of driving while his
license was revoked for the offense of driving under the influence in violation of section 6-303 of
the Illinois Vehicle Code (625 ILCS 5/6-303(a), (d)(1) (West 2022)). On October 25, 2023, the
State additionally charged the defendant with one count of aggravated battery in violation of
section 12-3.05(a) of the Criminal Code of 2012 (720 ILCS 5/12-3.05(a)(5) (West 2022)) and one
count of domestic battery, having been previously convicted of domestic battery, in violation of
section 12-3.2(a)(2) of the Criminal Code of 2012 (id. § 12-3.2(a)(2), (b)). The same day, the State
filed a verified petition to set conditions of pretrial release. The defendant was released on October
26, 2023, with several conditions, including the condition that he does not violate any criminal
statute of any jurisdiction.
¶5 The two additional counts filed on October 25, 2023, were dismissed on January 11, 2024,
with leave to refile. On February 14, 2024, the State filed a verified petition to revoke the
defendant’s pretrial release, pursuant to section 110-6(a) of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/110-6(a) (West 2022)). The State’s petition alleged that the defendant
had violated his pretrial release conditions by committing the new offenses of driving while his
license was revoked on November 29, 2023, and January 2, 2024, as charged in Macon County
case Nos. 24-CF-78 and 24-CF-193. The State also alleged that no condition or combination of
Pursuant to Illinois Supreme Court Rule 604(h)(5) (eff. Dec. 7, 2023), our decision in this case
was due on or before June 7, 2024, absent a finding of good cause for extending the deadline. Based on the
high volume of appeals under the Act currently under the court’s consideration, as well as the complexity
of the issues and lack of precedential authority, we find there to be good cause for extending the deadline.
conditions of release would reasonably ensure the defendant’s appearance for later court hearings
or prevent him from being charged with a subsequent felony or Class A misdemeanor.
¶6 On February 22, 2024, a notice of hearing on the State’s petition to revoke pretrial release
was filed, setting the hearing on February 26, 2024. On the court’s own motion, the cause was
continued without objection until February 29, 2024. At the hearing on February 29, 2024, the
circuit court found that the defendant, while on pretrial release for a felony or Class A
misdemeanor, was charged with two new Class 4 felony cases of driving while his license was
revoked, and that no condition or combination of conditions of release would reasonably prevent
the defendant from subsequently being charged with a felony or Class A misdemeanor, and ordered
the defendant detained. The circuit court entered a written order the same day, and on March 12,
2024, the defendant timely appealed utilizing the Notice of Pretrial Fairness Act Appeal 604(h)
(Defendant as Appellant) standardized form provided by the Illinois Supreme Court. [CITATION]
¶7 II. ANALYSIS
¶8 On appeal, the defendant requests, as relief, release with pretrial conditions. The
defendant’s notice of appeal included the following claims of error: (1) the State failed to meet its
burden of proving by clear and convincing evidence that the proof is evident or the presumption
great that defendant committed the offense charged; (2) the State failed to meet its burden of
proving by clear and convincing evidence that defendant poses a real and present threat to the
safety of any person or persons or the community, based on the specific, articulable facts of the
case; (3) the State failed to meet its burden of proving by clear and convincing evidence that no
condition or combination of conditions can mitigate the real and present threat to the safety of any
person or persons or the community, based on the specific, articulable facts of the case, or the
defendant’s willful flight; and (4) the court erred in its determination that no condition or
combination of conditions would reasonably ensure the appearance of defendant for later hearings
or prevent the defendant from being charged with a subsequent felony or Class A misdemeanor.
¶9 The Office of the State Appellate Defender (OSAD) was appointed to represent the
defendant in this appeal, and OSAD filed a supporting memorandum on May 6, 2024. In the
defendant’s memorandum, the defendant raised two issues. First, the defendant argues that the
circuit court’s hearing on the petition to revoke pretrial release was untimely. The defendant states
that the State’s petition to revoke was filed on February 14, 2024, but that the circuit court failed
to conduct a hearing on the State’s petition until February 29, 2024. Also, within this issue, the
defendant argues ineffective assistance of defense counsel for failing to object to the timing of the
revocation hearing.
¶ 10 Next, the defendant argues that the State failed to prove, by clear and convincing evidence,
that there was no condition or combination of conditions of pretrial release that would reasonably
ensure the appearance of the defendant for later hearings or prevent the defendant from being
charged with a subsequent felony or Class A misdemeanor. As OSAD filed a Rule 604(h)
memorandum that abandoned the additional issues raised in the defendant’s notice of appeal, we
will address only the two arguments supported by the defendant’s memorandum. See [CITATION]
¶ 42 (when a supporting Rule 604(h) memorandum is filed, it becomes the controlling document for issues or claims on appeal and the notice of appeal
[SEGMENT 8]
will not be used to seek out further arguments except in limited circumstances).
¶ 11 The first issue the defendant raises on appeal is the timing of the revocation hearing. The
defendant acknowledges that this issue was not preserved and as such, is forfeited on review, but
requests this court to review the issue under the doctrine of plain error. See [CITATION]
IL App (5th) 230897-U, ¶ 14 (issue forfeited where the defendant failed to object to the State’s
petition and failed to allege the error in the notice of appeal). The plain-error doctrine is a narrow
and limited exception to the general rule of procedural default which allows plain errors or defects
affecting substantial rights to be noticed although the error or defect was not brought to the
attention of the circuit court. [CITATION], 215 Ill. 2d 167, 176 (2005). An otherwise
unpreserved error may be noticed under the plain-error doctrine, codified in Illinois Supreme Court
Rule 615 (eff. Jan. 1, 1967), if the defendant first demonstrates that a clear or obvious error
occurred and then shows that either (1) “the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error,” or (2) the “error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.” [CITATION], 225 Ill. 2d 551, 565 (2007). If the defendant fails to meet his burden of persuasion
under plain error, the issue is forfeited, and the reviewing court will honor the procedural default.
[CITATION], 2018 IL App (4th) 160107, ¶ 55.
¶ 12 Here, the defendant argues that the circuit court erred in conducting the revocation hearing
beyond the 72-hour statutory requirement set forth in section 110-6(a) of the Code (725 ILCS
5/110-6(a) (West 2022)), and that the issue is reviewable under the second prong of plain error.
The supreme court has recognized an error as structural, i.e., a systemic error which serves to erode
the integrity of the judicial process and undermine the fairness of the judicial process requiring
reversal, only in a very limited class of cases. [CITATION], 234 Ill. 2d 173, 197-98 (2009).
Those cases include a complete denial of counsel, trial before a biased judge, racial discrimination
in the selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a
defective reasonable doubt instruction. [CITATION], 238 Ill. 2d 598, 609 (2010).
```plaintext
¶ 13 The initial step in conducting a plain error analysis is to determine whether an error actually
occurred. [CITATION]. Without reversible error, there can be no
plain error. [CITATION]. Thus, we must first determine if the trial
court committed an error in conducting the revocation hearing more than 72 hours after the State
filed its petition to revoke pretrial release.
¶ 14 A defendant’s pretrial release may be revoked only in certain statutorily limited situations.
725 ILCS 5/110-6(a) (West 2022). Section 110-6 of the Code addresses revocation of pretrial
release, the modification of conditions of pretrial release, and sanctions for violations of conditions
of pretrial release. [CITATION], ¶ 11 (citing 725 ILCS 5/110-6 (West
2022)). Section 110-6(a) provides, in relevant part, as follows:
“(a) When a defendant has previously been granted pretrial release under this
Section for a felony or Class A misdemeanor, that pretrial release may be revoked only if
the defendant is charged with a felony or Class A misdemeanor that is alleged to have
occurred during the defendant’s pretrial release after a hearing on the court’s own motion
or upon the filing of a verified petition by the State.
***
Upon the filing of a petition or upon motion of the court seeking revocation, the
court shall order the transfer of the defendant and the petition or motion to the court before
which the previous felony or Class A misdemeanor is pending. The defendant may be held
in custody pending transfer to and a hearing before such court. The defendant shall be
transferred to the court before which the previous matter is pending without unnecessary
delay, and the revocation hearing shall occur within 72 hours of the filing of the State’s
petition or the court’s motion for revocation.” 725 ILCS 5/110-6(a) (West 2022).
``` ¶ 15 The court in [CITATION], recently addressed the issue of
the timing of a revocation hearing. In [CITATION], the circuit court conducted the defendant’s revocation
hearing one day beyond the 72-hour statutory deadline. Id. ¶ 12. The [CITATION] court found, after
conducting a statutory construction analysis, that section 110-6(a) imposed an obligation on the
circuit court to hold the hearing within 72 hours of the State’s petition. Id. ¶ 23. The [CITATION] court
further found, however, that the obligation to conduct the hearing within 72 hours was not
mandatory under the mandatory-directory dichotomy. Id. The mandatory-directory dichotomy
denotes whether the failure to comply with a particular procedural step will, or will not, have the
effect of invalidating the governmental action to which the procedural requirement relates. [CITATION].
¶ 16 In its analysis, the [CITATION] court noted that section 110-6(a) “lacks any negative language
prohibiting further action in the event the hearing is not held within 72 hours of the filing of the
State’s petition, nor are there any other specific consequences prescribed for the court’s failure to
hold a hearing within the specified time frame.” [CITATION], ¶ 20. The [CITATION]
court went on to state as follows:
“We also find no support for the conclusion that the right that section 110-6(a) is
designed to protect would generally be injured under a directory reading. Section 110-6(a)
is designed to protect victims and the community from defendants who are alleged to have
committed felonies or Class A misdemeanors while on pretrial release and to provide
prompt hearings to determine whether revocation is warranted. Although the Code
contemplates that such hearings should be held expeditiously, in particular because a
defendant may be held in custody pending the revocation hearing (see 725 ILCS 5/110-
(a) (West 2022)), a strict mandatory construction of the 72-hour requirement does not
achieve the purpose of the statute to determine whether revocation of previously granted
pretrial release is warranted.” [CITATION] ¶ 21.
¶ 17 Finally, the Green court noted that section 110-6(a) requires the defendant to be transferred
to the court before which the previous felony or Class A is pending and that, in some
circumstances, it may impossible to comply with both statutory requirements that the defendant
be transferred and the hearing conducted within 72 hours. [CITATION] ¶ 22. Therefore, the Green court
conclude that the statute’s 72-hour hearing command was “directory only, and no consequence is
warranted for the court’s failure to hold a hearing within the 72-[hour] period under the particular
facts of this case.” [CITATION] ¶ 23.
¶ 18 We acknowledge that the revocation hearing addressed by the Green court was one day
past the 72-hour time frame, and that the hearing at issue in this appeal was conducted over a week
beyond the 72 hours. We note, however, that the defendant in [CITATION] had been arrested and was in
custody due to the new offenses. [CITATION] ¶ 5. The defendant in this matter was on pretrial release and
not in custody, and as such, the defendant had to be located and served with a summons or arrested
on a warrant to bring him before the court. The defendant was brought before the court on February
26, 2024, and 67 hours later, on February 29, 2024, the revocation hearing occurred.
¶ 19 Therefore, based on the specific facts of this matter and pursuant to the precedent set forth
above, we find that the circuit court erred in failing to conduct the revocation hearing within 72
hours, but that no consequence is warranted given that the revocation hearing was conducted
within 72 hours of the defendant being brought before the court. We further find that, although
there was an error in the circuit court’s failure to conduct the revocation hearing within 72 hours
of the filing of the State’s petition to revoke, it was not a systemic error which served to erode the
integrity of the judicial process and undermine the fairness of the judicial process that would
require reversal. As previously stated, without reversible error, there can be no plain error. Naylor,
[CITATION]. Therefore, we find that the defendant has failed to meet his burden of persuasion
under plain error, the issue is forfeited, and this court will honor the procedural default.
¶ 20 Finally, the defendant also argues under this issue that his defense counsel was ineffective
[SEGMENT 9]
for failing to object to the timing of the hearing. To establish a claim of ineffective assistance of
counsel, a defendant must satisfy the familiar two prong Strickland test of deficiency and
prejudice. See [CITATION]. First, the defendant must prove that
counsel’s performance was so deficient that counsel was not functioning under the standard of
competence under prevailing professional norms. [CITATION].
Second, the defendant must establish prejudice in that the outcome of the proceedings would have
been different or counsel’s deficient performance rendered the result of the proceedings unreliable
or the proceeding fundamentally unfair. Id. A defendant must satisfy both prongs of the Strickland
test and the failure to establish either prong will be fatal to the claim. [CITATION].
¶ 21 Here, the defendant argues that he was prejudiced by defense counsel’s failure to object to
the timing of the revocation hearing since “he lost the ability to stay on pretrial release.” We
disagree. Even if the circuit court had ruled that the hearing could not proceed on the State’s
petition filed on February 14, 2024, the State could have simply refiled the petition and another
hearing could have been conducted within 72 hours of that filing. The defendant makes no
argument that the outcome of any revocation hearing would be different than the outcome of the
hearing on February 29, 2024. Further, due to the delay in the hearing, the defendant was actually
permitted to remain on pretrial release for a longer period of time than if the hearing had been
conducted within the 72-hour deadline. Therefore, we find that the defendant has failed to establish
prejudice and his claim of ineffective assistance of defense counsel must fail.
¶ 22 The second issue that the defendant argues on appeal is that the State failed to prove that
less restrictive conditions of release would be insufficient to ensure the defendant’s appearance at
later hearings or from being charged with a subsequent offense. In considering pretrial release
conditions, the circuit court must determine what conditions, if any, would “reasonably ensure the
appearance of the defendant for later hearings or prevent the defendant from being charged with a
subsequent felony or Class A misdemeanor.” 725 ILCS 5/110-6(a) (West 2022). Our standard of
review of pretrial release determinations is twofold. The circuit court’s factual findings will be
reviewed under the manifest weight of the evidence standard. [CITATION]. “A finding is against the manifest weight of the evidence only if the opposite
conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the
evidence presented.” [CITATION]. “Under the manifest weight
standard, we give deference to the [circuit] court as the finder of fact because it is in the best
position to observe the conduct and demeanor of the parties and witnesses.” Id. The circuit court’s
ultimate determination regarding the revocation of pretrial release, however, will not be reversed
absent an abuse of discretion. [CITATION]. An abuse of discretion
occurs when the decision of the circuit court is arbitrary, fanciful, or unreasonable, or when no
reasonable person would agree with the position adopted by the circuit court. [CITATION].
¶ 23 We have thoroughly reviewed the record on appeal in this matter. The circuit court made
an individualized finding to revoke the defendant’s pretrial release and detain the defendant after
considering the facts presented, arguments made by counsel, and the statutory factors. The circuit
court specifically found that the defendant was previously released with pretrial conditions;
however, the defendant was not compliant with those conditions after his release and was charged
with two new felony offenses. These offenses were for the same offense as the defendant’s original
charge. The circuit court further found that no condition or combination of conditions of pretrial
release could reasonably prevent the defendant from being charged with a subsequent felony or
Class A misdemeanor.
¶ 24 Based on our review of the record, we find that the circuit court’s factual findings were not
against the manifest weight of the evidence and the circuit court’s ultimate determination to revoke
the defendant’s pretrial release and detain the defendant was not an abuse of discretion.
Accordingly, we affirm the circuit court’s revocation order of February 29, 2024.
¶ 25 III. CONCLUSION
¶ 26 For the foregoing reasons, we affirm the February 29, 2024, order of the circuit court of
Macon County, revoking the defendant’s pretrial release.
¶ 27 Affirmed.
2024 IL App (1st) 240405-U
SIXTH DIVISION
May 10, 2024
No. 1-24-0405B
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 24 MC 1107913
)
ALFREDO GARDUNO, ) The Honorable
) Barbara Dawkins,
Defendant-Appellant. ) Judge Presiding.
JUSTICE TAILOR delivered the judgment of the court.
Presiding Justice Oden Johnson and Justice C.A. Walker concurred in the judgment.
ORDER
¶1 Held: The decision of the trial court is affirmed. Even though the defendant did not appear
for a pretrial detention hearing within 48 hours, he was brought before the court
without unnecessary delay and therefore reversal is not warranted.
¶2 I. BACKGROUND
¶3 Alfredo Garduno was arrested on February 6, 2024, at 4:50 am. On Feb 7, 2024, at 2:20
pm, the State’s Attorney’s felony review unit approved charges against him. The Chicago Police
Department (CPD) gave final approval of the charges at 6:31 pm that same day. On February 8,
2024, the State filed a petition to detain Garduno, and he appeared before the court for his pretrial No. 1-24-0405B
detention hearing at approximately 12:40 pm that afternoon. The record does not indicate what
time Garduno was actually brought to the courthouse.
¶4 During the hearing, defense counsel stated, “Your Honor, I would like to note for the
record, Mr. Garduno was arrested on February 6 according to the arrest report at 4:50 a.m. And
has not been -- this is the first time before a Judge on this case. It’s more than 48 hours just for the
record. It’s February 8 at 12:40 p.m.” Defense counsel then asked the court to “consider a remedy”
due to the “violation of the Pretrial Fairness Act given that it’s beyond the 48 hours.” The court
said, “So you are asking that the State’s complaint be dismissed based upon the violation of the 48
hour rule?” Defense counsel stated that she was “ask[ing] for [Garduno’s] release at this point.”
The State argued in response that “this was the first time that this defendant could be brought in
front of a Judge after the charging decision was made. That charging decision was made within
the 48 hours.”
¶5 The court ruled that the failure to bring Garduno before a judge within 48 hours of his arrest
did not automatically require that he be released:
“the Pretrial Fairness Act indicates that there’s a violation. It doesn’t prescribe a remedy. I
don’t find that it would be an appropriate remedy for either dismissal of the case or release
of the defendant. That it would be grossly disproportionate to any violation in this case.
And it would not be prescribed by any statute that I am aware [of] or any case law that I
am aware of. So your request will be denied.”
¶6 The State then proffered evidence to support its detention petition based on the charge of
aggravated criminal sexual abuse. It noted that Garduno had been living with the victim and her
family since 2022 because he was dating the victim’s older sister. Starting around May 2023,
Garduno, who was 17 years old at the time, entered the 12-year-old victim’s room while she was
No. 1-24-0405B
sleeping, penetrated her vagina with his penis, and threatened to “shoot up the house” if she told
anyone. This happened more than once. Garduno also forced the victim to perform oral sex on him
and to rub his penis, and he took photos and videos of her performing sex acts. Garduno threatened
to harm the victim’s family if she told anyone.
¶7 Based on the evidence proffered by the State, the court found that the State proved that the
proof is evident and the presumption is great that Garduno committed these acts, that Garduno
poses a real and present threat to the safety of any person or persons or the community based upon
the specific articulable facts of this case, and that there were no less restrictive conditions that
could avoid the real and present threat that Garduno poses to the community or the complaining
witness based upon the specific articulable facts of this case. Garduno timely appealed.
¶8 II. ANALYSIS
¶9 On appeal, Garduno does not challenge the court’s decision to detain him based on the
[SEGMENT 10]
evidence presented at his detention hearing. Instead, he argues that we should reverse the trial
court’s decision and remand so that the trial court can impose conditions of release because his
pretrial detention hearing was held more than 48 hours after his arrest, in violation of Public Act
101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act (Act).
¶ 10 Garduno argues that section 109-1(a) of the Act was violated, which states:
“[a] person arrested with or without a warrant for an offense for which pretrial release may
be denied under paragraphs (1) through (6) of Section 110-6.1 shall be taken without
unnecessary delay before the nearest and most accessible judge in that county, except when
such county is a participant in a regional jail authority, in which event such person may be
taken to the nearest and most accessible judge, irrespective of the county where such judge
No. 1-24-0405B
presides, within 48 hours, and a charge shall be filed.” 725 ILCS 5/109-1(a) (eff. Jan. 1,
).
¶ 11 In [CITATION], a division of this court addressed the
same issue—whether pretrial release is required when a defendant is not brought before the court
for a pretrial detention hearing within 48 hours after his arrest. In [CITATION], the defendant was
arrested at 2:14 pm on November 8, 2023. Id. ¶ 3. The State’s felony review unit approved charges
against him at 1:31 pm on November 9, 2023, and CPD gave final approval of the charges at 4:30
pm that same day. Id. The defendant was brought before the court at 3:41 pm on November 10,
2023, for his pretrial detention hearing. Id. ¶ 5. Even though the defendant appeared in court an
hour and a half after the statutory deadline outlined in the Act, the trial court granted the State’s
petition and found that the defendant should be detained pretrial. Id. ¶ 13. Defendant appealed,
arguing that the trial court’s order denying his pretrial release should be reversed because he was
not brought before a judge without “unnecessary delay” within 48 hours of his arrest. Id. ¶ 19. This
court disagreed and concluded that because the defendant was “brought to a courthouse within 48
hours of his arrest to appear before a judge” the requirement that he “shall be taken without
unnecessary delay to the nearest and most accessible judge *** within 48 hours” was met. Id. ¶
23. The court noted that CPD “did not give final approval of those charges [against defendant]
until 4:30 p.m.” on November 9, 2023, so “it was impossible for the defendant to be transported
to a courthouse for appearance before a judge on November 9, 2023.” Id. ¶ 27.
¶ 12 The [CITATION] court found our supreme court’s decision in [CITATION],
instructive, which interpreted a previous version of section 109-1. The [CITATION]
court noted that the previous version of the statute did not contain the “48 hour-timeframe for
presenting defendants to the trial court for the filing of charges” and instead, merely required that
No. 1-24-0405B
“[a] person arrested with or without a warrant” be “taken without unnecessary delay before the
nearest and most accessible judge.” Id. ¶ 29. In [CITATION], our supreme court held that “some latitude
is allowed” in determining whether a defendant was presented to the judge “without unnecessary
delay” and explained that “[p]resentment to a judge need be performed only with such reasonable
promptness as the circumstances permit.” [CITATION]. Relying on the supreme
court’s reasoning, the [CITATION] court stated:
“While we recognize that since the passage of the Pretrial Fairness Act the statute has been
amended to include a 48-hour deadline, we believe that the continued inclusion of the
‘without unnecessary delay’ language signals the legislature’s intent to permit for ‘some
latitude’ in fulfilling that deadline. [CITATION]. Accordingly, under the
particular facts of this case, and considering [CITATION], we believe that the defendant’s
presentment to the judge was ‘performed *** with all reasonable promptness’ permitted
under the circumstances. Id. Accordingly, there was no violation of the statute.” [CITATION] ¶ 30.
¶ 13 Applying [CITATION]’s rationale to this case, we find that Garduno was brought before the
court “without unnecessary delay.” Garduno was arrested on February 6, 2024, at 4:50 am. But
because the State and CPD did not finalize their charging decisions until 6:30 pm on February 7,
2024, “it was impossible for [Garduno] to be transported to a courthouse for appearance before a
judge” that day. Id. ¶ 27. Accordingly, the earliest he could have appeared before the court was on
February 8, 2024, which he did. Because Garduno’s “presentment to the judge was ‘performed
*** with all reasonable promptness,’ ” id. ¶ 30, we find no violation of the statute.
¶ 14 Even if we were to conclude that section 5/109-1(a) was violated here, that does not
necessarily mean that pretrial release is required. The statute does not prescribe a remedy for a
No. 1-24-0405B
violation of the 48-hour rule. See [CITATION] (noting
that while the Gerstein rule was codified under a section 109-1(a), the Illinois statute “does not
provide a remedy for its violation”); cf. [CITATION] (noting that while section 109–
1(a) “requires that an arrestee be presented to a judge ‘without unnecessary delay,’ noncompliance
therewith does not, by itself, obviate a confession or render an otherwise voluntary confession
inadmissible at trial. Rather, such delay is merely a factor to be considered on the question of
voluntariness.”) In [CITATION], this court interpreted a section
of the Act with similar language, section 110-6(a), which addresses revocation of pretrial release
and states that a defendant “shall be transferred to the court before which the previous matter is
pending without unnecessary delay, and the revocation hearing shall occur within 72 hours of the
filing of the State’s petition.” Because the statute lists no “specific consequences *** for the court’s
failure to hold a hearing within the specified time frame,” the court found the language was
directory, not mandatory, and concluded that although the defendant’s revocation hearing took
place after the 72-hour period specified in the statute, “no consequence [wa]s warranted.” Id. ¶¶
18, 20, 23. See also [CITATION] (quoting [CITATION]) (declining to vacate order revoking defendant’s pretrial release
even though a hearing on the State’s petition was not held within 72 hours, as required by statute,
noting that “the statute itself provides no such remedy for a violation of the 72-hour requirement,”
and reasoning that it could not “supply omissions, remedy defects, annex new provisions,
substitute different provisions, exceptions, limitations or conditions, or otherwise change the law
so as to depart from the language employed [by the legislature]”).
¶ 15 Garduno points to [CITATION], to support
his position that he should be released on remand. There, the defendant was arrested, charged with
No. 1-24-0405B
several felony offenses, and made his initial appearance in court on December 24, 2023. Id. ¶ 4.
The State filed a petition seeking to deny defendant’s pretrial release; the State also filed a motion
to continue the hearing until December 27, which the court granted. Id. ¶ 5. Although defendant
argued that section 110-6.1(c)(2) required the hearing to be conducted within 48 hours of his initial
appearance in court, the court granted the State’s petition. Id. ¶ 6. On appeal, this court reversed,
finding that the statute “clearly requires” a hearing on the State’s petition to deny a defendant
pretrial release to be conducted within 48 hours of defendant’s initial appearance. Id. ¶ 11. It found
that the trial court erred when it failed to comply with the procedural requirements of section 110-
6.1(c)(2) and concluded that the “appropriate remedy” was “remand *** for the purpose of
promptly holding a hearing to determine the least restrictive conditions of defendant’s pretrial
release.” Id. ¶ 18.
¶ 16 [CITATION] is distinguishable because it involves section 110-6.1(c)(2) of
the Act, which states that a pretrial detention hearing “shall be held within 48 hours of the
defendant’s first appearance****” 725 ILCS 5/110-6.1(c)(2) (eff. Jan. 1, 2023). The mandatory
language of section 110-6.1(c)(2) includes no exceptions. See [CITATION] (“It is a cardinal rule of statutory construction that we cannot rewrite a
[SEGMENT 11]
statute, and depart from its plain language, by reading into it exceptions, limitations, or conditions
not expressed by the legislature.”) Section 5-109(1)(a), by contrast, states that the defendant “shall
be taken without unnecessary delay before the nearest and most accessible judge in that county
*** within 48 hours.” (Emphasis added.) Like the [CITATION] court, we find that “the continued
inclusion of the ‘without unnecessary delay’ language [in section 5-109(1)(a)] signals the
legislature’s intent to permit for ‘some latitude’ in fulfilling that deadline.” [CITATION]. See also [CITATION],
No. 1-24-0405B
181, 193 (2008) (“When the legislature uses certain language in one part of a statute and different
language in another, we may assume different meanings were intended.”)
¶ 17 Moreover, we note that the Act was “designed to protect victims and the community from
defendants who are alleged to have committed felonies,” so “a strict mandatory construction of the
[48]-hour requirement does not achieve the purpose of the statute.” [CITATION]. Accordingly, although Garduno’s detention hearing took place several hours
after the 48-hour window in section 5/109(1)(a), we find that there was no “unnecessary delay”
and that the hearing was performed “with such reasonable promptness as the circumstances
permit[ted],” ([CITATION]), especially in light of the fact that the charging decisions
were not finalized until the evening of February 7, making it impossible for Garduno’s detention
hearing to take place before February 8. In addition, we do not see how this minor delay “could
have or did prejudice the outcome of [Garduno’s] pretrial detention proceedings, particularly since
his case was heard by the judge before the end of that business day.” [CITATION], ¶ 26. See also [CITATION], ¶¶ 22-23 (the court’s failure to hold a
detention hearing within 72 hours did not violate section 110-6(a) of the Act, because the hearing
“occurred at the first possible opportunity” and the “one-day delay d[id] not thwart the legislative
intent to hold a prompt hearing”). Garduno makes no arguments in his brief that would lead us to
conclude otherwise. Therefore, we hold that reversal of the trial court’s detention order is
unwarranted.
¶ 18 III. CONCLUSION
¶ 19 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 20 Affirmed.
2024 IL App (1st) 240204U
Nos. 1-24-0204B & 1-24-0309B cons.
Order filed May 3, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 23 CR 12670
)
CURTIS BROWN, JR., ) Honorable
) James Bryan Novy,
Defendant-Appellant. ) Judge, Presiding.
PRESIDING JUSTICE ODEN JOHNSON delivered the judgment of the court.
Justices C.A. Walker and Tailor concurred in the judgment.
ORDER
¶1 Held: Trial court’s order granting the State’s petition for revocation was not an abuse of
discretion where the State met its burden of proving by clear and convincing
evidence the defendant poses a real and present threat to the safety of any person
or persons or the community because while on pretrial release, the defendant was
charged with committing a battery.
¶2 BACKGROUND
¶3 A summary of the relevant evidence proffered by the parties during the hearing on the
State’s petition for revocation of pretrial release is as follows: In March of 2023, defendant Curtis Nos. 1-24-0204B & 1-24-0309B cons.
Brown Jr. was charged with five counts of cyberstalking and harassment. Count 1 charged him
with cyberstalking and causing fear to a person (see 720 ILCS 5/12-7.5(a)(1) (West 2022)) in that
on October 30, 2022, and between November 3 and November 11, 2022, defendant sent numerous
emails to the lab manager at University of Chicago Mindworks Museum and subsequently the
museum’s general counsel. These emails were threatening in nature and allegedly included
remarks to kill and inflict extreme harm on the recipients. On the same alleged facts, Counts II and
IV charged him with cyberstalking and causing a person to suffer emotional distress. Count III
alleges cyberstalking through electronic communication. Count V charged him with harassment
and threatening injury to the person.
¶4 Defendant was taken into custody on these charges and the court granted defendant pretrial
release for the alleged offenses. The State’s petition to revoke pretrial release arose from an
incident which occurred on January 2, 2024. Officers allegedly were approached by someone at a
McDonald’s who stated defendant committed a battery near the restaurant. Officers later detained
Brown and conducted a show up. The complaining witness allegedly identified the person who
attacked him as defendant. Prior to defendant’s alleged battery, the court ordered defendant to
adhere to a curfew, which he allegedly failed to abide by on several occasions between December
14 and December 27, 2023. Defendant made a court appearance on December 28, 2023, where the
trial court informed him that any more violations would lead to a revocation of pretrial release.
¶5 The State filed a Petition for Revocation of Pretrial Release based on the arrest and
subsequent battery charge. The hearing for revocation of pretrial release was held on January 4,
2024, and was continued to January 5, 2024. The court emphasized that it would not consider any
evidence presented at the January 4 hearing because defense counsel had not received all the
Nos. 1-24-0204B & 1-24-0309B cons.
discovery gathered by the State. At the hearing, the State asserted that defendant demonstrated that
he is a clear and present danger to the community. Furthermore, they argued that defendant’s
failure to comply with pretrial release curfew conditions proved there were no conditions that
could reasonably ensure the safety of the public or prevent him from being charged with another
felony or Class A misdemeanor.
¶6 At the hearing, defendant argued for release with the same conditions as the original pretrial
release. Those conditions included a 7 p.m. curfew at a hotel funded through mental health services
that he was receiving at the time. Defendant asserted that the State focused on issues in the case
unrelated to the reason he was before the court, which was the recent Class A misdemeanor battery.
Defense counsel also asked the court to consider defendant’s argument that he acted in self-defense
when he was charged with misdemeanor battery. Defendant stated he did not have contact with
either of the alleged victims deriving from the charges of cyberstalking and harassment. Defendant
also noted that there had been no reported violations of pretrial release conditions since he was
warned on December 28, 2023. Additionally, defense counsel stated that defendant did not
understand the terms of his pretrial release curfew prior to the December 28, 2023, appearance.
¶7 After hearing, the trial court found that defendant violated the pretrial release conditions
by being charged with battery. The court noted the presumption was great that defendant
committed the offense alleged and defendant poses a real and present threat to the safety of the
complaining witness in the battery case, as well as the community. Furthermore, the trial court
relied on emails showing threats defendant made towards the University of Chicago to make its
decision. Those emails included threats of violence towards the police, the complaining witness, a
Nos. 1-24-0204B & 1-24-0309B cons.
high school, and K9 units. Defendant’s counsel filed a notice of appeal from the trial court’s order
revoking his pretrial release and requested this court vacate that order.
¶8 Defendant’s appeal was timely filed within 14 days, thereby conferring jurisdiction upon
this court. In considering this appeal, we have reviewed the following documents that were
submitted pursuant to Rule 604(h): defendant’s notice of appeal from the order under the Pretrial
Fairness Act, defendant’s memorandum, and the State’s memorandum in response.
¶9 ANALYSIS
¶ 10 On appeal, defendant filed a Notice in Lieu of Rule 604(h) Memorandum. Defendant
challenges the order granting the State’s petition to revoke pretrial release and denying his petition
for release by arguing that: 1) the State failed its burden by clear and convincing evidence that the
proof is evident or the presumption is great that defendant committed the offense charged; 2) the
circuit court erred in its determination that no condition or combination of conditions would
reasonably ensure the appearance of defendant for later hearings or prevent defendant from being
[SEGMENT 12]
charged with a subsequent felony or Class A misdemeanor; 3) the court and the State improperly
treated the petition to revoke as an initial petition to detain; 4) the court’s determination that he is
a danger to the community is irrelevant for a petition to revoke, and the court’s findings are
insufficient to revoke release under 725 ILCS 5/110-6 (West 2022); and 5) the court failed to abide
by 725 ILCS 5/110-6(a) (West 2022) in that it refused to immediately release him once the charge
which was the basis of the petition to revoke was dismissed.
¶ 11 In response, the State’s argues that defense counsel’s argument is without merit because
the box counsel checked on the notice of appeal form applied to orders granting petitions for
pretrial detention under section 110-6.1 and not the order revoking pretrial release under section
Nos. 1-24-0204B & 1-24-0309B cons.
110-6(a). The State further argues that defense counsel’s argument that there were inconsistencies
between the proffers on January 4 and January 5, 2024, is without merit because the court clarified
that it would not consider the former proceedings when defense counsel had not received the
discovery the State gathered. The State relies on [CITATION] to
argue that the court found the ground for relief on the preprinted Rule 604(d) form was irrelevant
to the defendant’s appeal of revocation of pretrial release. Lastly, the State argues that defendant’s
argument that the hearing focused on the underlying cyberstalking charges as opposed to the new
battery charge is unsupported by section 110-6(a) of the Pretrial Release Act (Act) (725 ILCS
5/110-6(a) (West 2022)). The State contends that section 110-6(a) is “designed to protect victims
and the community from defendants who are alleged to have committed felonies or Class A
misdemeanors while on pretrial release.” [CITATION], ¶ 21.
¶ 12 Pretrial detention orders are reviewed for an abuse of discretion. [CITATION], ¶¶ 10-11. A mere disagreement with a circuit court’s decision to place a
defendant in pretrial detention would not justify calling the decision an abuse of discretion. Id. The
decision is an abuse of discretion only if it is “arbitrary, fanciful, or unreasonable” or only if no
reasonable person would have agreed with the position adopted by the court. Id. ¶ 10.
¶ 13 According to the Act, it is presumed that a defendant has the right to be released on personal
recognizance under the condition that they attend all necessary court proceedings and refrain from
committing any criminal offenses, while also complying with all pretrial release terms (725 ILCS
5/110-2(a) (West 2022)). The responsibility lies with the State to demonstrate, with clear and
convincing evidence that no combination of release conditions would sufficiently ensure the
defendant’s appearance in court or prevent defendant from committing a subsequent felony or
Nos. 1-24-0204B & 1-24-0309B cons.
Class A misdemeanor [CITATION]. If such evidence is presented, the
circuit court has the authority to order the defendant’s detention, particularly if defendant is
charged with a qualifying offense and deemed to pose a genuine and immediate threat to the safety
of individual or the community [CITATION]. However, if the court
determines that detention is not warranted, it may opt to impose additional conditions. [CITATION].
¶ 14 In cases where pretrial release is previously granted, it may only be revoked if the defendant
is charged with a felony or Class A misdemeanor that is alleged to have occurred during the
defendant’s pretrial release. [CITATION]. During a hearing for revocation of
pretrial release, the court shall consider all relevant circumstances, including nature and
seriousness of the offense. Id. If the court decides revocation is not appropriate, the defendant may
be released pretrial without modification to conditions of pretrial release. Id. In cases where pretrial
release is previously granted, it may only be revoked if the defendant is charged with a felony or
Class A misdemeanor that is alleged to have occurred during the defendant’s pretrial release. [CITATION]. During a hearing for revocation of pretrial release, the court shall
consider all relevant circumstances, including nature and seriousness of the offense. Id. If the court
decides revocation is not appropriate, the defendant may be released pretrial without modification
to conditions of pretrial release. Id.
¶ 15 In a hearing on the petition for the revocation of pretrial release, the State must prove by
clear and convincing evidence that either no condition or combination of conditions will ensure
the defendant’s appearance in later hearings; or no condition or combination of conditions would
====== End of Part of a Court Ruling ====== Nos. 1-24-0204B & 1-24-0309B cons.
prevent the defendant from being charged with another Class A misdemeanor or felony. 725 ILCS
5/110-6 (West 2022).
¶ 16 In this case, the trial court did not abuse its discretion in determining that there were no
conditions that could have prevented defendant from being charged with a subsequent Class A
misdemeanor. The record shows that defendant allegedly committed a battery while out on pretrial
release by sending several violent threats to workers at the University of Chicago. While defendant
argues the State proffered facts that were unsupported and irrelevant, the crime alleged against the
victim is one of a violent nature and the public safety of the alleged victim and the community are
at risk. The new alleged crime, coupled with the charges already pending against defendant, and
evidence of defendant threatening violent acts towards a high school and other people demonstrate
that defendant is a real and present threat to safety of the community. Additionally, we note that
defendant was residing in a hotel where he was receiving mental care, and counsel for defendant
has alleged that defendant cannot be placed on electronic monitoring while living at the hotel.
Therefore, electronic home monitoring is not an option.
¶ 17 Defendant further alleges that the court and the State improperly treated the petition to
revoke as an initial petition to detain despite it being untimely. However, under 725 ILCS 5/110-
6(a) (West 2022), the circuit court is required to consider “all relevant circumstances, including,
but not limited to, the nature and seriousness of the violation alleged.” In this case, the alleged
threats, some for which he had not been charged, must be considered when making the decision
on whether to revoke pretrial release. Furthermore, defendant argues that the court’s determination
that he is a danger to the community is irrelevant for a petition to revoke, and that the court’s
Nos. 1-24-0204B & 1-24-0309B cons.
findings are insufficient to revoke release under section 110-6. We disagree because section 110-
6 states:
“The court shall consider all relevant circumstances, including, but not limited to,
the nature and seriousness of the violation or criminal act alleged. The State shall bear the
burden of proving, by clear and convincing evidence, that no condition or combination of
conditions of release would reasonably ensure the appearance of the defendant for later
hearings or prevent the defendant from being charged with a subsequent felony or Class
A misdemeanor.” 725 ILCS 5/110-6 (West 2022).
¶ 18 Since the trial court must take all relevant circumstances into consideration, defendant’s
danger to the community is a circumstance that must be considered in the determination of whether
to grant a revocation of pretrial release. Additionally, based on the new charge, no condition or
combination of conditions would prevent defendant from being charged with another violent
felony or misdemeanor if he was released from custody. Therefore, defendant’s dangerousness to
the community is relevant to the determination of whether the petition for revocation of pretrial
release should be granted.
¶ 19 This case at hand is analogous to the case [CITATION]. In [CITATION], the court held that the circuit court did not abuse its discretion by determining that no
condition or combinations of conditions would prevent the defendant from being charged with a
Class A misdemeanor. In that case, the defendant was charged with aggravated battery of a peace
officer and was out on pretrial release. While out on pretrial release, the defendant was charged
with a new felony of armed habitual criminal. Officers observed the defendant trespassing and
when the defendant was placed into custody, officers discovered he was armed. The State filed a
petition for revocation of pretrial release, arguing no conditions or combination of conditions of
release would reasonably ensure the appearance of the defendant for later hearings and prevent
Nos. 1-24-0204B & 1-24-0309B cons.
him from being charged with a subsequent felony or Class A misdemeanor. The court granted the
State’s petition, finding that no conditions could prevent a subsequent felony or misdemeanor. On
appeal, the decision was affirmed. The court found the circuit court did not err when it revoked
the defendant’s pretrial release. The court stated that given the defendant’s criminal history, it was
not “unreasonable, arbitrary, or fanciful” for the trial court to find no conditions or combination of
conditions would be sufficient to prevent the defendant from being charged with another felony or
Class A misdemeanor.
¶ 20 In the current case, defendant was out on pretrial release from charges of cyberstalking and
[SEGMENT 13]
harassment of individuals at the University of Chicago’s Mindworks Museum. While out on
pretrial release, defendant allegedly committed a battery on an individual at a McDonald’s
restaurant. Prior to the commission of the alleged battery, defendant committed multiple violations
of his pretrial release curfew conditions. This along with defendant’s alleged commission of a
battery, leads us to affirm the trial court’s findings that no conditions or combination or conditions
would reasonably ensure the appearance of defendant for later hearings or prevented defendant
from being charged with a subsequent felony or Class A misdemeanor.
¶ 21 Thus, the trial court did not abuse its discretion in determining there were no conditions or
combination of conditions that could have prevented defendant from being charged with a
subsequent felony or Class A misdemeanor.
¶ 22 CONCLUSION
¶ 23 For the foregoing reasons, we affirm the circuit court’s judgement.
¶ 24 Affirmed.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
2024 IL App (1st) 240730-U
No. 1-24-0730B
Order filed July 12, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. )
) No. 2023CR1051501
LETERRANCE MITCHELL, )
) The Honorable Sharon Arnold
Defendant-Appellant. ) Kanter (in the stead of the
) Honorable Shelley Sutker-
) Dermer),
) Judge, presiding.
JUSTICE C.A. WALKER delivered the judgment of the court.
Justice Hyman concurred in the judgment. Justice Tailor dissented.
ORDER
¶1 Held: The circuit court abused its discretion where it did not properly consider electronic
home monitoring as a viable alternative to continued pretrial detention. No. 1-24-0730B
¶2 Appellant Leterrance Mitchell appeals the circuit court’s order continuing his pretrial
detention under article 110 of the Code of Criminal Procedure of 1963 (Code) [CITATION], as amended by Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), and Public Act
102-1104, § 70 (eff. Jan 1, 2023) (commonly referred to as the “Safety, Accountability, Fairness
and Equity-Today (SAFE-T) Act” (Act)). On appeal, Mitchell argues the court erred in its
determination that there was no condition or combination of conditions that would reasonably
prevent him from being charged with a subsequent felony or Class A misdemeanor. For the
following reasons, we reverse and remand for the circuit court to consider whether electronic
monitoring is appropriate with the understanding that Mitchell will be monitored even on days
where he is allowed movement pursuant to the Electronic Monitoring and Home Detention Law
(Electronic Monitoring Law). [CITATION].
¶3 BACKGROUND
¶4 Mitchell was arrested on August 27, 2023, and charged with two counts of possession and
display of a fraudulent identification card [CITATION]. The circuit court
released Mitchell on a $4000 bond with additional pretrial release conditions on September 2,
2023. Following the enactment of the Act on September 18, 2023, on October 20, 2023, Mitchell
was arrested for aggravated unlawful use of a weapon (AUUW) [CITATION]. On October 21, 2023, the State filed a petition to revoke pretrial release under section 110-
6 of the Code. The court granted the petition on November 2, 2023, and ordered Mitchell detained.
Mitchell filed a petition seeking pretrial release under section 110-6.1 of the Code on February 14,
2024, and the court held a hearing on the petition the same day.
¶5 The State proffered that on October 20, 2023, Chicago police officers pulled over a driver
in the 6300 block of South Martin Luther King Drive in Chicago. At the time, the driver was
No. 1-24-0730B
providing rideshare services to Mitchell, who was seated in the passenger seat behind him. The
officers observed Mitchell acting nervous and asked if he was concealing anything. After Mitchell
evaded their questions, the officers asked both Mitchell and the driver to exit the vehicle. Mitchell
exited out of the opposite side of the vehicle and fled on foot. The officers chased down and
detained Mitchell. They returned to the vehicle and allegedly found a loaded firearm on the rear
seat. At the time of the arrest, Mitchell did not have a Firearm Owners Identification (FOID) card
or concealed carry (CCL) permit.
¶6 The State noted at the time of the arrest, Mitchell was on first-time weapon offender
probation after he pled guilty to AUUW on March 7, 2023. Mitchell violated his probation when
he was arrested in August 2023. The State argued because Mitchell was arrested twice in a short
time, and his October arrest was his second while on probation, there was no condition or
combination of conditions that would reasonably prevent him from being charged with a
subsequent felony or Class A misdemeanor.
¶7 Mitchell proffered that at the time of the hearing, he was 19 years old and a lifelong resident
of Chicago. He graduated from South Shore International College Preparatory High School and
worked at UPS at the time of his arrest. Mitchell requested the court grant pretrial release so he
could return to his family and work with his counsel as the case continued. He argued electronic
monitoring would be appropriate because the court could monitor when and where he would be at
all times.
¶8 The court denied Mitchell’s petition, finding no condition or combination of conditions
would reasonably prevent him from being charged with a subsequent felony or Class A
misdemeanor. The court stated:
No. 1-24-0730B
“I don’t believe that being on electronic home monitoring, which I did strongly consider,
would prevent this defendant from committing any other offense because the defendant has
shown to me he fled the car in which - - and I’m not taking that fraudulent ID case very
much into my consideration except committing the offense. Electronic home monitoring is
just a bracelet on someone’s ankle. The electronic home monitoring [statute] allows for
two separate days where people would not be on electronic home monitoring where people
are not being monitored. I don’t think - - I think with the defendant being on probation,
being on bond, and then committing this third case, I don’t think there’s anything that I can
do.”
This appeal followed.
¶9 JURISDICTION
¶ 10 Mitchell appeals the circuit court’s order of February 24, 20241. He filed his notice of appeal
on February 28, 2024; thus, the notice was timely, and this court has jurisdiction. See 725 ILCS
5/110-6(a), 110-6.6 (West 2022); Ill. S. Ct. R. 604(h) (eff. Dec. 7, 2023).
¶ 11 ANALYSIS
¶ 12 Upon its enactment, the Act amended the Code by abolishing traditional monetary bail in
favor of pretrial release on personal recognizance or with conditions of release. [CITATION],
¶ 17. Any person previously released on bond shall be allowed to remain on pretrial release under
the terms of their original bail bond; however, if there is an alleged
1
On his Notice of Appeal, Mitchell states to appeal the order entered “February 24, 2024.”
However, the record does not show an order entered by the circuit court on that date. The circuit
court entered its order continuing Mitchell’s detention on February 14, 2024. The notice
incorporates the court’s findings from its February 14, 2024, order. As such, we find this defect to
be one of form and not fatal on appeal. See [CITATION], ¶ 17.
No. 1-24-0730B
violation of those terms, the court shall follow the procedures for revocation of pretrial release
under section 110-6 of the Code. 725 ILCS 5/110-7.5(a), (c)(5) (West 2022).
¶ 13 Under section 110-6(a) of the Code, when a defendant has previously been granted pretrial
release, it may be revoked only if he is charged with a felony or Class A misdemeanor that is
alleged to have occurred during his pretrial release. 725 ILCS 5/110-6(a) (West 2022). The
defendant’s pretrial release may only be revoked after a hearing on the circuit court’s own motion
or upon the filing of a verified petition by the State. Id.
¶ 14 Following revocation, at each subsequent appearance of the defendant before the circuit
court, the court must find that continued detention is necessary to reasonably ensure the appearance
of the defendant for later hearings or to prevent the defendant from being charged with a
subsequent felony or Class A misdemeanor. 725 ILCS 5/110-6(j) (West 2022).
¶ 15 The applicable standard of review for orders revoking pretrial release under section 110-6
of the Code is the same as orders denying pretrial release under section 110-6.1. [CITATION],
¶ 33. While the standard of review for pretrial release orders remains unsettled, this court determined
a “twofold” approach is appropriate where the circuit court’s findings of fact are reviewed under the
manifest weight of the evidence standard, but the ultimate decision regarding pretrial detention
is reviewed for abuse of discretion. [CITATION], ¶¶ 17-18.
¶ 16 At the outset, we observe that the circuit court, during the February 14, 2024, hearing,
seemed to conflate a hearing to revoke pretrial release under section 110-6(a) of the Code with a
[SEGMENT 2]
subsequent appearance under section 110-6(j). In its oral ruling, the court stated that along with
Mitchell’s petition for pretrial release, there was “a previous verified petition [to revoke] by the
State.” The court proceeds to find by clear and convincing evidence that no condition or
No. 1-24-0730B
combination of conditions would reasonably prevent Mitchell from being charged with a
subsequent felony or Class A misdemeanor. This is the standard for an initial revocation hearing
outlined in section 110-6(a) of the Code. However, the legislature is clear that an initial revocation
hearing occurs upon the filing of a verified petition by the State or on the court’s own motion. 725
ILCS 5/110-6(a) (West 2022).
¶ 17 Here, the circuit court had already heard and adjudicated the State’s petition on November
2, 2023, and in doing so, the court found by clear and convincing evidence that “no condition or
combination of conditions of release would reasonably *** prevent the defendant from being
charged with a subsequent Felony or Class A Misdemeanor.” Because Mitchell appeared before
the court after it adjudicated the State’s petition, the February 14, 2024, hearing was a “subsequent
appearance” under section 110-6(j) of the Code.
¶ 18 We find the analysis in [CITATION], instructive. In [CITATION], the court ordered a defendant detained after the State filed a petition to deny pretrial
release. Id. ¶ 4-5. Following the hearing, the defendant filed a petition for pretrial release. Id. ¶ 7.
At the hearing on the defendant’s petition, the circuit court found that the State met its evidentiary
burden for detention under section 110-6.1 of the Code and ruled that the defendant’s detention
would continue. Id. ¶ 12.
¶ 19 On appeal, the [CITATION] court noted the Code expressly differentiates between an initial
detention hearing and a subsequent appearance. [CITATION]. The
court explained that even though the circuit court made findings consistent with the standard for
initial detention, those findings were improper as there was no verified petition for detention
pending, as is required under section 110-6.1. Id. ¶ 21. The court concluded that any proceedings
for an initial detention hearing at a subsequent appearance were a nullity. Id. ¶ 21. The only issue
No. 1-24-0730B
at a subsequent appearance is whether continued detention was necessary under the Code. Id. ¶ 22.
However, if the circuit court ultimately found that continued detention was necessary, then its
ruling would be consistent with the subsequent appearance standard, even if it couched its findings
in terms of an initial detention determination. Id.
¶ 20 Here, the circuit court found detention was necessary because it had a mistaken belief
regarding electronic home monitoring. Therefore, the issue here is whether the circuit court
properly considered electronic home monitoring a viable alternative to continued detention.
¶ 21 We note that at the February 14, 2024, hearing, Mitchell informed the circuit court that he
had been detained between October 2023 and February 2024, and he assured the court he would
“walk a straighter line” upon release. He highlighted his age and contented alleged flight from
police during the October 2023 incident was due to his immaturity. Mitchell asked to be placed on
electronic home monitoring emphasizing that electronic monitoring provides more restrictions on
movement than pretrial release. Upon questioning from the court, the State noted that prior to the
October 2023 incident, Mitchell did not have any issues while he was on pretrial release.
¶ 22 In its ruling, the circuit court stated that it “strongly” considered electronic monitoring but
rejected it as it allowed for “two separate days where . . . people are not being monitored.” Because
of these two days where Mitchell would not be monitored, and considering the October 2023
incident occurred while he was on probation, the court ruled there were no lesser conditions to
prevent him from committing a subsequent felony or Class A misdemeanor. But the court’s finding
of there being “two separate days where . . . people are not being monitored” is an incorrect
interpretation of the Electronic Monitoring Law. In construing a statute, this court must ascertain
and give effect to the intent of the legislature. [CITATION]. To determine
the legislature’s intent, the reviewing court must first examine the language of the statute, which
No. 1-24-0730B
is the most reliable indicator of its intent. Id. If the statutory text is clear and unambiguous, it
should be given effect as written, without reading into it, exceptions, limitations, or conditions that
the legislature did not express. [CITATION]. The construction
of a statute is a question of law, reviewed de novo. [CITATION]. Under the Electronic Monitoring Law, “at a minimum, any person ordered to
pretrial home confinement with or without electronic home monitoring must be provided with
movement spread out over no fewer than two days to participate in basic activities.” 730 ILCS 5/5-
8A-4(A-1) (West 2022). The statute limits “basic activities” to those listed under 730 ILCS 5/5-
8A-4(A). Id. The activities include:
“(1) working or employment approved by the court or traveling to or from approved
employment;
(2) unemployed and seeking employment approved for the participant by the court;
(3) undergoing medical, psychiatric, mental health treatment, counseling, or other treatment
programs approved for the participant by the court;
(4) attending an educational institution or a program approved for the participant by the
court;
(5) attending a regularly scheduled religious service at a place of worship;
(6) participating in community work release or community service programs approved for
the participant by the supervising authority;
(7) for another compelling reason consistent with the public interest, as approved by the
supervising authority; or
(8) purchasing groceries, food, or other basic necessities.”
¶ 23 While section 5-8A-4(A-1) may allow a defendant two days to conduct basic activities
outside of his residence, it does not state that the defendant is “not being monitored.” We find that
section 5-8A-4(D) requires a defendant to be monitored “at any time” for the purpose of verifying
compliance with electronic home monitoring. 730 ILCS 5/5-8A-4(D) (West 2022). In addition, the
defendant must maintain access to a working telephone and a monitoring device either in his home
or on his person. Id. § 5-8A-4(E). While a defendant has two days to attend places such as a
doctor’s appointment or a religious service, which may be outside of the locations specifically
```plaintext
No. 1-24-0730B
listed in his electronic monitoring order, he must still maintain communication with the agency
who is managing the program. Reading the plain and unambiguous language of the statute, the
legislature did not intend for defendants on electronic monitoring to have two days where they are
not monitored. We find that under section 5-8A-4(A-1), while a defendant must have two days
where he may move from his residence, his movement is limited to the “basic activities” listed in
section 5-8A-4(A).
¶ 24 Given our interpretation of the Electronic Monitoring Law, we hold the circuit court erred
in finding that “electronic home monitoring allows for two separate days where people would not
be on electronic home monitoring where people are not being monitored.” We also hold that the
court abused its discretion in finding, “I don’t think there’s anything that I can do and any least
restrictive condition that would prevent this defendant from committing yet another subsequent
felony or class A misdemeanor.”
¶ 25 The issue before this court is not whether electronic monitoring will or will not be effective,
instead the issue is whether the circuit court properly considered electronic monitoring as an
alternative to detention as required by the Code. The dissent asserts that the court found that
electronic monitoring would be ineffective due to Mitchell’s history. But instead, the court found
electronic monitoring ineffective because it misinterpreted the Electronic Monitoring Law.
According to the record, Mitchell was never placed on electronic monitoring. The court mistakenly
believed that Mitchell would have two days where he would not be monitored, similar to his prior
pretrial release. Because of this mistaken belief, the court found that no “least restrictive condition.
. . would prevent [Mitchell] from committing yet another felony or Class A misdemeanor.” As
previously stated, under electronic monitoring, Mitchell would always be monitored.
``` No. 1-24-0730B
¶ 26 Because the circuit court mistakenly believed that electronic home monitoring would allow
“two separate days where . . . people are not being monitored,” it did not properly consider
electronic monitoring as an alternative to detention as required. Based on the court’s comments,
the court misunderstood the law, and that cannot be ignored. Therefore, we reverse and remand
for the court to consider the effectiveness of electronic monitoring. [CITATION]
114044, ¶ 31 (“Error is committed when a trial court refuses to exercise its discretion in the
erroneous belief that it has no discretion as to the question presented” (citing [CITATION])).
[SEGMENT 3]
¶ 27 Finally, we echo the words of the circuit court, and note that we see much potential within
Mitchell. We note the immaturity that may arise from a 19 year old such as Mitchell, and hope that
at the end of this process, he turns his life around, continues his education, and reaches his full
potential. We remand this matter and take no position on what the ruling of the circuit court should
be.
¶ 28 CONCLUSION
¶ 29 We reverse the circuit court’s February 14, 2024, order and remand for the court to
reconsider whether Mitchell should be placed on electronic home monitoring.
¶ 30 Reversed and remanded.
¶ 31 JUSTICE TAILOR, dissenting:
¶ 32 The trial court did not abuse its discretion when it determined that continued detention was
necessary to prevent Mitchell from being charged with a subsequent felony or Class A
misdemeanor. To support its determination, the court noted that Mitchell had been placed on “first
offender gun probation” after pleading guilty to AUUW on March 7, 2023. Less than six months
later, Mitchell was arrested again and charged with possession of multiple fraudulent or fictitious
No. 1-24-0730B
identification cards. The court noted that the probation judge could have held Mitchell for violating
the terms of his probation at that time, but instead “decided to place [his] trust [in Mitchell] that
he would do what was asked, but most importantly, *** not commit any new cases.” Mitchell was
granted bond on September 2, 2023, but was arrested again less than two months later after a 9-
millimeter semiautomatic loaded firearm was found on the seat of a vehicle where he had been
sitting just minutes after he exited the vehicle and fled from police. He was then charged with
AUUW, his second gun offense. After reviewing Mitchell’s criminal history, the court stated:
“So what I have before me is an individual who was on gun probation, picked up a new
case, a new Class 4 felony, was given the immense trust to be released on that bail on that
Class 4 felony, and then flaunted that trust of the community and committed another gun
case merely 48 days after being released on *** bond. Why I believe that there are no
conditions or combination of conditions that would reasonably prevent this defendant from
being charged with a subsequent felony or Class A misdemeanor is that the defendant was
on probation for a gun and then picked up two new cases.”
The court went on:
“The defendant was released on the first case, given that opportunity to show the Court
again that he would not be charged with a subsequent felony or Class A misdemeanor, that
he could be trusted to be amongst the community and follow the rules as were required not
only by his probation but by his bond slips, and then 48 days later picked up not just any
Class 4 felony but a gun case with a 9-millimeter semiautomatic handgun.”
¶ 33 After stating that it had “strongly consider[ed]” electronic home monitoring, the court
determined that it would not prevent Mitchell from committing any other offense because he had
“flaunted th[e] trust” the court had placed in him and repeatedly demonstrated that he “didn't
No. 1-24-0730B
follow the rules.” The majority singles out the court’s comment that “electronic home monitoring
allows for two separate days where people would not be on the electronic home monitoring where
people are not being monitored” and concludes that this demonstrates the court’s “incorrect
interpretation of the Electronic Monitoring and Home Detention Law” as well as the court’s belief
that Mitchell would not be monitored at all for two days each week. However, I read the court’s
comments as evincing its belief that if Mitchell was placed on electronic monitoring, he would be
permitted to leave the home and go out into the community two days out of every week, where he
would be likely to reoffend. When the record is read as a whole, it is clear that the court considered
electronic monitoring as an option for Mitchell but rejected it, not because of any misunderstanding
of the law, but due to Mitchell’s demonstrated unwillingness to comply with court rules and orders.
The court noted that Mitchell had already been given probation and been released on bond, and
that as a condition of that bond, he had been required not to commit any additional criminal
offenses, and yet he reoffended less than two months later. Accordingly, I find that the majority’s
conclusion—that the trial court “believed that electronic home monitoring was not an option”—is
belied by the record. Ample evidence in the record supported the court’s decision to continue to
detain Mitchell here, including his previous history of violating and disobeying court orders and
reoffending while on probation and on bond. Therefore, I would find no abuse of discretion and
would affirm the trial court’s order.
¶ 34 I respectfully dissent.
2024 IL App (1st) 240808-U
No. 1-24-0808B
Order filed July 10, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 23C44045101
)
PHILLIP GORDAN ) The Honorable
) Eulalia V. De La Rosa,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Justices C.A. Walker and Tailor concurred in the judgment.
ORDER
¶1 Held: Affirmed. The circuit court did not err by detaining the defendant before trial.
¶2 Rarely do allegations alone lead this court to reverse. Generally, parties must show how
alleged errors affected the proceedings. Here, Phillip Gordan fails to offer either caselaw or record
facts when attacking a handful of alleged “problem[s]” and “mishaps” at his revocation proceeding
under article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West
2022)), as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial
Fairness Act. Because the proceedings fit the Code, even if imperfect, we affirm. No. 1-24-0808B
¶3 Background
¶4 The State petitioned to revoke Gordan’s pretrial release, alleging he had escaped from
electronic monitoring. See [CITATION]. The State claimed to have clear and
convincing proof that nothing short of pretrial detention would reasonably prevent him from
committing subsequent felonies or Class A misdemeanors or ensure his future appearance in court.
¶5 At a hearing on the petition, the State proffered facts describing Gordan’s alleged escape.
While on electronic monitoring, Gordon resided with a host and that person’s 10-year-old
daughter. But both left after he attacked the child by kicking her, punching her, and threatening
her with a box cutter. The host called the police to withdraw consent for Gordan to live there.
When officers arrived, they found only the electronic monitoring bracelet. Months later, officers
arrested Gordon. The State charged him with the felony of escape.
¶6 The State detailed Gordan’s history of convictions and failures to appear in court. He had
felony convictions for aggravated unlawful use of a weapon by a felon, possession of a controlled
substance, domestic battery, and armed robbery, as well as misdemeanor convictions for
aggravated assault and domestic battery. He failed to appear once in this prosecution and five times
in unidentified matters from 2019 to 2022.
¶7 Gordan proffered that he is 38 years old, a lifelong Maywood resident, has six children,
and last lived with his mother. He is employed as a food distributor. He has posttraumatic stress
disorder, bipolar disorder, depression, and mania. He cut off his electronic monitoring bracelet
while “trying to get his [electronic monitoring] location moved at the time.”
¶8 The trial court prompted the State to proffer about the underlying offense, being an armed
habitual criminal ([CITATION]), for which Gordan had initially secured No. 1-24-0808B
pretrial release. The trial court then found that the State had carried its burden to prove Gordan
should be denied pretrial release (725 ILCS 5/110-6.1(e) (West 2022)) rather than carrying its
burden to prove he should have his pretrial release revoked (id. §110-6(a)).
¶9 Clear and convincing evidence showed (i) it was evident or the presumption great that
Gordan had committed a detainable offense, (ii) Gordan was a real and present threat to the child
he “threatened and physically hurt,” and (iii) no condition or combination of conditions could
mitigate the threat he posed. The trial court found, “We tried it[,] and it did not work. He was given
[SEGMENT 4]
electronic monitoring, * * * cut the bracelet off[,] and picked up a new case.” Gordan’s past and
present criminal acts, and “the totality of everything present[ed],” demanded pretrial detention.
¶ 10 Gordan filed a notice of appeal, attacking the trial court’s findings on the second and third
elements under section 110-6.1(e). In his view, he presented no threat because being an armed
habitual criminal is not a “crime of violence,” and the allegation that he attacked a child was
“unproven.” Also, electronic monitoring would mitigate any future threat he poses because, at one
point, he “had been in compliance with the terms and conditions of electronic monitoring[.]”
¶ 11 He faults the trial court for denying him pretrial release under section 110-6.1(e) rather
than revoking his pretrial release under section110-6(a). He also asserts the trial court “did not rule
on” whether he was likely to appear at later hearings. Finally, he notes that the State cited section
110-6(b), not section 110-6(a), when petitioning to revoke his pretrial release.
¶ 12 Analysis
¶ 13 Gordan did not file a Rule 604(h) memorandum. In a notice in lieu of that memo, he
purports to re-assert the claims in his notice of appeal and attacks the preprinted forms the State
No. 1-24-0808B
and trial court used. We reject his contentions. As we explain, the proceedings in the trial court fit
the Code, even if imperfect.
¶ 14 Petition to Revoke Pretrial Release under Section 110-6(a)
¶ 15 The State may detain an accused by charging an offense eligible for detention and carrying
its burden to prove three elements under the Code. Id. § 110-6.1(e). But if the State fails to carry
this burden, the trial court may still revoke pretrial release at a later hearing on a verified petition
to revoke. Id. § 110-6(a).
¶ 16 In pertinent part, revocation proceedings may begin after “the defendant is charged with a
felony or Class A misdemeanor that is alleged to have occurred during the defendant’s pretrial
release[.]” Id. § 110-6(a). While Gordan was on pretrial release, the State charged him with the
felony of escape (730 ILCS 5/5-8A-4.1(a) (West 2022)) and petitioned to revoke his pretrial
release. Consistent with the Code, the trial court held a hearing on the State’s petition.
¶ 17 Generally, the Code demands that during the hearing the trial court “consider all relevant
circumstances, including, but not limited to, the nature and seriousness of the violation or criminal
act alleged.” 725 ILCS 5/110-6(a) (West 2022). Here, the trial court properly did so when broadly
considering the proffered facts leading to the escape: Gordan’s attack on a child. Likewise, the
trial court properly considered how Gordan cut the bracelet of his monitor and disappeared. Indeed,
the trial court pithily summarized this evidence by asserting, “We tried it[,] and it did not work.
He was given electronic monitoring, * * * cut the bracelet off[,] and picked up a new case.” See
generally [CITATION]
No. 1-24-0808B
¶ 18 To be sure, the State bore “the burden of proving, by clear and convincing evidence, that
no condition or combination of conditions of release would reasonably ensure the appearance of
the defendant for later hearings or prevent the defendant from being charged with a subsequent
felony or Class A misdemeanor.” Id. § 110-6 (a). But the State carried that burden by proffering
how, on six occasions, Gordan had failed to appear in court and how, immediately after attacking
the child, he had absconded for months. See [CITATION], ¶ 12 (defining burden of proof). Indeed, Gordan admitted to unlawfully cutting the bracelet. Thus, as
the trial noted, “the totality of everything present[ed]” demanded pretrial detention.
¶ 19 Gordan’s Challenge under Section 110-6.1(e)
¶ 20 In his notice of appeal, Gordan attacks the trial court’s findings on the second and third
elements under section 110-6.1(e). But Gordan misplaces these contentions. As we explained, the
State petitioned to revoke his pretrial detention under section 110-6(a), not section 110-6.1(e).
Those sections define distinct procedures. Compare 725 ILCS 5/110-6.1(e) (West 2022)
(describing burden on initial petition to deny pretrial release) with id. §110-6.1(a) (defining
proceedings on later petition to revoke pretrial release).
¶ 21 Yet Gordan’s notice of appeal does not refer to section 110-6(a) and leaves blank a box for
challenging the trial court’s findings under section 110-6(a). Thus, we agree with the State that
Gordan forfeited this challenge under 110-6(a). See [CITATION], ¶¶ 18-19 (under supreme court rules, we “must limit our review to the issues fairly raised by a
liberal construction of defendant’s notice of appeal”). “No matter how liberally we construe [his]
notice of appeal, it does not encompass” relevant issues. [CITATION], ¶ 19.
¶ 22 Gordan’s Challenge under Section 110-6(a)
No. 1-24-0808B
¶ 23 In his notice in lieu of a memo, Gordan purports to re-assert the claims in his notice of
appeal and attacks the preprinted forms the State and trial court used. We reject his contentions as
lacking factual and legal support.
¶ 24 First, we reject, as contrary to the record, Gordan’s assertion that his notice of appeal
“properly demonstrate[s] why conditions [of pretrial release] would suffice rather than a
revocation” under section 110-6(a). As we explained, Gordan’s notice of appeal focuses on an
impertinent section under the Code, section 110-6.1(e). Saying otherwise does not make it so. See
[CITATION].
¶ 25 Next, we reject Gordan’s nitpicking of the preprinted form the State used. Gordan notes
the State cited section 110-6(b), not section 110-6(a), when petitioning to revoke his pretrial
release. As the State explains, the body of its petition proves this to be a scrivener’s error. [CITATION]. The body of the petition
alleges that Gordan, “while on pretrial release for a Felony or Class A misdemeanor, [was] charged
with a new Felony or Class A misdemeanor * * * alleged to have occurred during * * * pretrial
release.” As relief, the State requests “a revocation hearing” to prove “by clear and convincing
evidence, that no condition or combination of conditions of release would reasonably” ensure the
defendant’s appearance for later hearings or “prevent the defendant from being charged with a
subsequent Felony or Class A Misdemeanor.” This language applies only to revocation hearings
under section 110-6(a). Compare 725 ILCS 5/110-6(a) (West 2022) with id. §110-6.1(b).
¶ 26 Finally, Gordan faults the trial court for denying him pretrial release under section 110-
6.1(e) rather than revoking his pretrial release under section 110-6(a). He likewise asserts the trial
No. 1-24-0808B
court “did not rule on” whether he was likely to appear at later hearings. But this improperly
focuses on the trial court’s invocation of section 110-6.1(e) to the exclusion of its findings of fact.
¶ 27 The State presented an unrebutted proffer how, six times before, Gordan had failed to
appear in court and how, right after attacking a child, he had absconded for months. In this context,
to repeat, the trial court found: “We tried it[,] and it did not work. He was given electronic
monitoring, * * * cut the bracelet off[,] and picked up a new case.” Likewise, the trial court found
that Gordan’s past and present criminal acts and “the totality of everything present[ed]” demanded
his pretrial detention. Thus, the trial court ruled on the core issue under section 110-6(a).
¶ 28 Conclusion
¶ 29 Parties must show how alleged “problem[s]” or “mishaps” affected the proceedings.
Gordan has failed to make that showing.
¶ 30 Affirmed.
NOTICE
IL App (4th) 240589-U
This Order was filed under
FILED
July 9, 2024
Supreme Court Rule 23 and is NO. 4-24-0589 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
[SEGMENT 5]
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Rock Island County
TYRELL DERRIOUS COOPER, ) No. 24CF244
Defendant-Appellant. )
) Honorable
) Frank R. Fuhr,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Justice Harris concurred in the judgment.
Justice Doherty dissented.
ORDER
¶1 Held: The trial court’s pretrial detention order was vacated, and the cause was remanded
for a new hearing to determine the least restrictive conditions for defendant’s
pretrial release, where defendant’s detention hearing was not held within 48 hours
of his initial appearance.
¶2 Defendant, Tyrell Derrious Cooper, appeals an order denying him pretrial release
pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/art. 110
(West 2022)), hereinafter as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known
as the Pretrial Fairness Act. On appeal, defendant argues that the trial court erred in denying him
pretrial release because it failed to hold a detention hearing on the State’s petition within 48 hours of his initial appearance. For the following reasons, we vacate the detention order and remand for
further proceedings.
¶3 I. BACKGROUND
¶4 On Saturday, March 30, 2024, the State charged defendant with aggravated battery
(720 ILCS 5/12-3.05(e)(1) (West 2022)), aggravated discharge of a firearm (720 ILCS 5/24-
1.2(a)(2) (West 2022)), and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.2(a)(2)
(West 2022)). The State also filed a petition to deny defendant pretrial release pursuant to section
110-6.1 of the Code (725 ILCS 5/110-6.1 (West 2022)). In its petition, the State alleged that
defendant’s pretrial release posed a real and present threat to the safety of any person or persons
or the community.
¶5 Also on March 30, 2024, defendant made his first appearance in court at 10:58 a.m.
The prosecutor noted that he had filed a petition to detain defendant and asked, “that the hearing
be set for Monday at 1:30.” The prosecutor added, “We believe that would be within the time
frame allowed by statute.” Defendant’s counsel responded, “we’d ask for immediate, but did
receive notice of the hearing for Monday.” The trial court set the hearing for Monday, April 1,
2024.
¶6 The pretrial detention hearing proceeded as scheduled on April 1, 2024. We discuss
only those facts relevant to the issue on appeal. During the hearing, defendant’s counsel moved to
strike the State’s petition to deny defendant pretrial release because, pursuant to [CITATION], the detention hearing was untimely. Counsel
acknowledged the trial court’s belief that [CITATION] did “not apply to periods, including
holidays and weekends,” but argued that “detention petitions must be heard in this case within 48
hours of their filing [sic].” Counsel explained that defendant was charged with offenses that were
“Class 3 or higher” and that section 110-6.1(c)(2) of the Code (725 ILCS 5/110-6.1(c)(2) (West
2022)) imposed a “strict 48-hour rule.” Accordingly, since the petition was filed “in the morning
of Saturday, March 30th,” and the detention hearing was taking place on “April 1st in the
afternoon,” the hearing was untimely. The court denied defendant’s motion to strike the State’s
petition and proceeded with a detention hearing. At the conclusion of the hearing, the court granted
the State’s petition and ordered defendant’s detention.
¶7 Defendant filed a timely notice of appeal. Thereafter, defendant and the State filed
memoranda detailing their arguments.
¶8 II. ANALYSIS
¶9 On appeal, defendant argues in his memorandum that the trial court erred in
granting the State’s petition to deny him pretrial release because the detention hearing was not held
in accordance with the timing requirements of section 110-6.1(c)(2) of the Code. In response, the
State contends that defendant suffered no prejudice, as the hearing took place only “shortly after
the 48-hour timeframe passed.” We note that defendant raises other grounds for relief in his notice
of appeal, challenging the court’s findings with respect to the merits of the State’s detention
petition. However, the issue defendant raises in his memorandum is dispositive of this appeal.
¶ 10 When interpreting a statute, our goal is to ascertain and give effect to the intent of
the legislature, which is best determined by the language of the statute, given its plain and ordinary
meaning. [CITATION]. We review issues of statutory
interpretation de novo. [CITATION]
¶ 11 Section 110-6.1(c)(2) provides, in relevant part, that upon the filing of a petition to
deny a defendant pretrial release, the trial court:
“shall immediately hold a hearing on the petition unless a continuance is requested.
If a continuance is requested and granted, the hearing shall be held within 48 hours
of the defendant’s first appearance if the defendant is charged with first degree
murder or a Class X, Class 1, Class 2, or Class 3 felony.” 725 ILCS 5/110-6.1(c)(2)
(West 2022).
¶ 12 In [CITATION], we determined that the language of section 110-6.1(c)(2) was
“clear and unambiguous, and we must interpret it according to its terms.” [CITATION], ¶ 11. Accordingly, we explained that the statute “clearly requires trial
courts to conduct a hearing on the State’s petition to deny a defendant pretrial release within 48
hours of the defendant’s initial appearance; it does not exclude weekends or holidays when
computing time deadlines.” [CITATION], ¶ 11. As such, we
held that the trial court failed to comply with section 110-6.1(c)(2) where, following the
defendant’s initial appearance on December 24, 2023, the court, upon granting a continuance, did
not hold a detention hearing until December 27, 2023—after the 48-hour deadline. [CITATION], ¶¶ 12-13.
¶ 13 Here, defendant was charged with aggravated battery, a Class X felony; aggravated
discharge of a firearm, a Class 1 felony; and unlawful possession of a weapon by a felon, a Class
3 felony. Based upon the clear language of section 110-6.1(c)(2), the trial court was required to
hold a hearing on the State’s petition to deny release either “immediately,” if no continuance was
requested, or “within 48 hours of the defendant’s first appearance” if a continuance was requested.
725 ILCS 5/110-6.1(c)(2) (West 2022). Defendant’s initial appearance occurred in the morning on
March 30, 2024. After continuing the matter at the prosecutor’s request, the court did not hold a
detention hearing until the afternoon of April 1, 2024, outside the 48-hour time frame.
Accordingly, the court failed to comply with the timing requirements in section 110-6.1(c)(2).
¶ 14 The State argues defendant’s reliance on McCarthy-Nelson is misguided. Instead,
the State argues we should apply such cases as [CITATION], and [CITATION],
and find that any delay following the expiration of the 48-hour period was so minor that
defendant suffered no prejudice. However, these cases are distinguishable. None of them applied
section 110-6.1(c)(2); instead, they involved different statutory timing provisions that included
additional language not contained in section 110-6.1(c)(2). Specifically, [CITATION] and [CITATION]
concerned whether section 109-1(a) of the Code (725 ILCS 5/109-1(a) (West 2022)) had been
violated where the defendants were not brought before a judge within 48 hours of their arrests.
[CITATION], ¶ 10. That
section provides, in part, that a person who is arrested “shall be taken without unnecessary delay
before the nearest and most accessible judge in that county *** within 48 hours, and a charge shall
be filed.” 725 ILCS 5/109-1(a) (West 2022). In both cases, the courts determined that the inclusion
of the language “without unnecessary delay” in section 109-1(a) allowed some latitude in fulfilling
the 48-hour deadline, such that the statute was not violated. [CITATION], ¶ 13.
¶ 15 Similarly, [CITATION] concerned whether section 110-6(a) of the Code (725 ILCS 5/110-
[SEGMENT 6]
6(a) (West 2022)) was violated where the defendant’s detention hearing was not held within 72
hours of the State filing a petition to revoke pretrial release. [CITATION], ¶ 10. Section 110-6(a) provides, in part, that upon the State’s petition to revoke a defendant’s
pretrial release, “[t]he defendant shall be transferred to the court before which the previous matter
is pending without unnecessary delay, and the revocation hearing shall occur within 72 hours of
the filing of the State’s petition.” 725 ILCS 5/110-6(a) (West 2022). The court rejected “a strict
mandatory construction of the 72-hour requirement,” finding that a “one-day delay does not thwart
the legislative intent to hold a prompt hearing before the judge most familiar with the matter.”
[CITATION], ¶¶ 21-22. The court determined that the statute was “directory
only,” as it contained no negative language prohibiting further action if a hearing is not held within
72 hours of the filing of the State’s petition, and therefore, “no consequence is warranted *** under
the particular facts of this case.” [CITATION], ¶¶ 20, 23.
¶ 16 Unlike [CITATION], and [CITATION], this case involves section 110-6.1(c)(2),
which does not contain the additional language “without unnecessary delay” present in the statutes
at issue in those cases. Indeed, [CITATION] undercuts the State’s argument, as that case explicitly
referenced section 110-6.1(c)(2) and determined it was “mandatory” and “includes no exceptions”
to the 48-hour period. [CITATION], ¶ 16. Additionally, beyond noting
the holding in [CITATION] that the court found section 110-6(a) to be directory only, the State develops
no argument as to whether the command of section 110-6.1(c)(2) is mandatory or directory. Given
the foregoing, the State provides no convincing argument for why we should depart from our
reasoning in [CITATION], and thus, we decline to do so. See [CITATION], ¶¶ 14, 21 (applying [CITATION]'s reasoning and concluding that the
defendant’s detention hearing was not held within the 48-hour time frame imposed by section 110-
6.1(c)(2)).
¶ 17 Accordingly, we conclude that the trial court erred in failing to hold a detention
hearing within 48 hours of defendant’s first appearance. In [CITATION], we determined that
the appropriate remedy for a failure to comply with the timing requirements of section 110-
6.1(c)(2) is to remand the case for a hearing to determine the least restrictive conditions of the
defendant’s pretrial release. [CITATION] Thus, we
choose to apply that remedy here. On remand, the court will be required to impose the mandatory
conditions listed in section 110-10 (725 ILCS 5/110-10 (West 2022)), and it may impose any
additional appropriate conditions consistent with that section that will ensure that defendant
appears in court, does not commit any criminal offense, and complies with all conditions of pretrial
release.
¶ 18 III. CONCLUSION
¶ 19 For the reasons stated, we vacate the trial court’s detention order and remand with
directions that the court promptly set the case for a hearing to determine the least restrictive
conditions of defendant’s pretrial release.
¶ 20 Vacated and remanded with directions.
¶ 21 JUSTICE DOHERTY, dissenting:
¶ 22 This case is fundamentally about the proper interpretation of these 13 words in the
statute at issue: “the hearing shall be held within 48 hours of the defendant’s first appearance.”
725 ILCS 5/110-6.1(c)(2) (West 2022). I agree with defendant, the majority, and [CITATION]
that weekends and holidays are not deducted from the computation of this time period. Here, the
hearing at issue occurred (or, at least, was scheduled to occur) approximately 90 minutes after the
expiration of the 48-hour period, so the statute was not strictly complied with.
¶ 23 For his part, defendant assumes that the relief to which he is entitled as a result of
this delay is reversal of the order for his detention and a remand for purposes of effecting his
release on conditions. The State, on the other hand, argues that defendant’s hearing was “fair and
proper” and that, because he was not prejudiced by the short delay, he is not entitled to release.
The State relies on several cases interpreting analogous statutory provisions under the detention
statute; each of these cases considers whether actions being taken after expiration of the applicable
time limit addressed in those cases requires the defendant to be released, rather than detained.
¶ 24 Of the decisions relied on by the State, the only published decision is [CITATION], where
a petition to revoke the defendant’s pretrial release was conducted outside of the specified 72-hour
time limit set forth in the statutory provision. The statute in question provides as follows: “The
defendant shall be transferred to the court before which the previous matter is pending without
unnecessary delay, and the revocation hearing shall occur within 72 hours of the filing of the
State’s petition or the court’s motion for revocation.” 725 ILCS 5/110-6(a) (West 2022). The court
in [CITATION] concluded that a one-day delay past the deadline for conducting the revocation hearing
did not entitle the defendant to his release. [CITATION], 2024 IL App (1st) 240211, ¶ 23. As noted here
by the State, the [CITATION] court specifically considered whether the statute was “mandatory” or
“directory,” i.e., whether the failure to comply with a particular procedural step will, or will not,
have the effect of invalidating the government action to which the requirement relates. Id. ¶ 17
(citing [CITATION] noted that the mandatory-directory dichotomy “presents a question of
statutory construction,” which is addressed de novo on appeal. Id. As noted in [CITATION], it is
presumed that “a procedural command to a government official indicates an intent that the statute
is directory.” Id. ¶ 18. The presumption is overcome when either of two conditions is present:
(1) where the statute prohibits further action in the case of noncompliance or (2) where the right
the provision is designed to protect “would generally be injured under a directory reading.” Id.
¶ 26 I believe that the approach articulated in [CITATION] reflects the application of well-
established principles of statutory construction which are equally applicable here. First, the proper
analysis begins with the presumption that the statute, which here is directed toward a government
official (i.e., the trial court), is directory because it dictates a procedural step the court must take.
See [CITATION], ¶ 29 (examining a statutory requirement that the Department of Public Health must hold
a discharge hearing within 10 days).
¶ 27 The next step in the analysis is to consider the two factors noted above. First, the
statute contains no “language prohibiting further action, nor does it provide a specific consequence
for noncompliance with its time limits.” See id. ¶ 35. “Had the legislature intended a mandatory
reading,” it could have specified a consequence for exceeding the 48-hour requirement. See [CITATION], ¶ 20. The lack of a specified consequence under this factor does not
rebut the presumption that the statutory command is directory.
¶ 28 The second factor to be examined is whether the rights protected by the 48-hour
requirement “would generally be injured by a directory reading.” [CITATION], ¶ 38. Here, a trial court’s general compliance with the 48-hour requirement will inure to
the benefit of those in the class to which defendant belongs: defendants looking to have the
question of detention settled promptly. In the case of a specific defendant whose detention hearing
is delayed beyond 48 hours, however, there is no loss in terms of the defendant’s substantive rights
on the issue of detention; the only issue is the delay—in this case a very short one—in having
those rights addressed.
¶ 29 Moreover, while the statute provides for a presumption in favor of the pretrial
release of accused defendants (725 ILCS 5/110-6.1(e) (West 2022)), a trial court’s detention
decision also requires it to address concerns about whether release would pose “a real and present
threat to the safety of any person or persons or the community.” Id. § 110-6.1(1.5). In other words,
both the rights of the accused and the rights of the community are at stake. A directory
interpretation of the 48-hour requirement would not defeat defendant’s rights, but a mandatory
interpretation would defeat the community’s expectation that public safety will be considered
before a defendant is released. I conclude that this factor also does not weigh against the normal
presumption that the 48-hour time requirement is directory. Accord [CITATION]
¶ 30 Because neither of the two relevant factors weighs against the presumption that the
48-hour time limit is directory, I conclude that the statutory requirement of a 48-hour time limit is
directory, not mandatory. In other words, I do not assume, as defendant and the majority do, that
[SEGMENT 7]
the automatic remedy for exceeding the 48-hour period is defendant’s release. Based on the short
delay at issue in this case, I would affirm the trial court’s detention order.
¶ 31 In closing, I note that I am “not discouraging the timely disposition of hearings
under” section 6.1(c)(2). See [CITATION]. Courts should endeavor to
hold all such hearings within the prescribed 48 hours. It is also foreseeable, however, that in some
situations—such as the one here, where the 48-hour period following a Saturday morning first
appearance lapsed just before noon on Monday—strict adherence to the time limit will present a
logistical challenge to trial courts. Holding a hearing early Monday afternoon instead of late
Monday morning should not be fatal to the court’s obligation to address the detention issues on
their merits. The statute compels no such result.
- 10 -
2024 IL App (5th) 240390-U
NOTICE
NOTICE
Decision filed 06/18/24. The
This order was filed under
text of this decision may be NO. 5-24-0390
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Macon County.
)
v. ) No. 23-CF-1567
)
MICHAEL A. SMOLLEY, ) Honorable
) Shane Mendenhall,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court.
Justices Moore and Barberis concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s order revoking the defendant’s pretrial release where
we find no reversible error based on the timing of the revocation hearing, the circuit
court’s finding that no condition or combination of conditions would prevent the
defendant from committing subsequent felonies or Class A misdemeanors was not
against the manifest weight of the evidence, and the revocation order was not an
abuse of discretion.
¶2 The defendant, Michael A. Smolley, appeals the February 29, 2024, order of the circuit
court of Macon County granting the State’s petition to revoke pretrial release and ordering him
detained pursuant to the Safety, Accountability, Fairness and Equity Today (SAFE-T) Act (Act). 1
The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither name
is official, as neither appears in the Illinois Compiled Statutes or public act. [CITATION],
¶ 4 n.1.
[CITATION] (lifting stay and setting effective date as September 18,
2023). For the following reasons, we affirm the order of the circuit court of Macon County. 2
¶3 I. BACKGROUND
¶4 On October 18, 2023, the State charged the defendant by information with driving a motor
vehicle while his license was revoked, having been previously convicted of driving while his
license was revoked for the offense of driving under the influence in violation of section 6-303 of
the Illinois Vehicle Code (625 ILCS 5/6-303(a), (d)(1) (West 2022)). On October 25, 2023, the
State additionally charged the defendant with one count of aggravated battery in violation of
section 12-3.05(a) of the Criminal Code of 2012 (720 ILCS 5/12-3.05(a)(5) (West 2022)) and one
count of domestic battery, having been previously convicted of domestic battery, in violation of
section 12-3.2(a)(2) of the Criminal Code of 2012 (id. § 12-3.2(a)(2), (b)). The same day, the State
filed a verified petition to set conditions of pretrial release. The defendant was released on October
26, 2023, with several conditions, including the condition that he does not violate any criminal
statute of any jurisdiction.
¶5 The two additional counts filed on October 25, 2023, were dismissed on January 11, 2024,
with leave to refile. On February 14, 2024, the State filed a verified petition to revoke the
defendant’s pretrial release, pursuant to section 110-6(a) of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/110-6(a) (West 2022)). The State’s petition alleged that the defendant
had violated his pretrial release conditions by committing the new offenses of driving while his
license was revoked on November 29, 2023, and January 2, 2024, as charged in Macon County
case Nos. 24-CF-78 and 24-CF-193. The State also alleged that no condition or combination of
Pursuant to Illinois Supreme Court Rule 604(h)(5) (eff. Dec. 7, 2023), our decision in this case
was due on or before June 7, 2024, absent a finding of good cause for extending the deadline. Based on the
high volume of appeals under the Act currently under the court’s consideration, as well as the complexity
of the issues and lack of precedential authority, we find there to be good cause for extending the deadline.
conditions of release would reasonably ensure the defendant’s appearance for later court hearings
or prevent him from being charged with a subsequent felony or Class A misdemeanor.
¶6 On February 22, 2024, a notice of hearing on the State’s petition to revoke pretrial release
was filed, setting the hearing on February 26, 2024. On the court’s own motion, the cause was
continued without objection until February 29, 2024. At the hearing on February 29, 2024, the
circuit court found that the defendant, while on pretrial release for a felony or Class A
misdemeanor, was charged with two new Class 4 felony cases of driving while his license was
revoked, and that no condition or combination of conditions of release would reasonably prevent
the defendant from subsequently being charged with a felony or Class A misdemeanor, and ordered
the defendant detained. The circuit court entered a written order the same day, and on March 12,
2024, the defendant timely appealed utilizing the Notice of Pretrial Fairness Act Appeal 604(h)
(Defendant as Appellant) standardized form provided by the Illinois Supreme Court. [CITATION]
¶7 II. ANALYSIS
¶8 On appeal, the defendant requests, as relief, release with pretrial conditions. The
defendant’s notice of appeal included the following claims of error: (1) the State failed to meet its
burden of proving by clear and convincing evidence that the proof is evident or the presumption
great that defendant committed the offense charged; (2) the State failed to meet its burden of
proving by clear and convincing evidence that defendant poses a real and present threat to the
safety of any person or persons or the community, based on the specific, articulable facts of the
case; (3) the State failed to meet its burden of proving by clear and convincing evidence that no
condition or combination of conditions can mitigate the real and present threat to the safety of any
person or persons or the community, based on the specific, articulable facts of the case, or the
defendant’s willful flight; and (4) the court erred in its determination that no condition or
combination of conditions would reasonably ensure the appearance of defendant for later hearings
or prevent the defendant from being charged with a subsequent felony or Class A misdemeanor.
¶9 The Office of the State Appellate Defender (OSAD) was appointed to represent the
defendant in this appeal, and OSAD filed a supporting memorandum on May 6, 2024. In the
defendant’s memorandum, the defendant raised two issues. First, the defendant argues that the
circuit court’s hearing on the petition to revoke pretrial release was untimely. The defendant states
that the State’s petition to revoke was filed on February 14, 2024, but that the circuit court failed
to conduct a hearing on the State’s petition until February 29, 2024. Also, within this issue, the
defendant argues ineffective assistance of defense counsel for failing to object to the timing of the
revocation hearing.
¶ 10 Next, the defendant argues that the State failed to prove, by clear and convincing evidence,
that there was no condition or combination of conditions of pretrial release that would reasonably
ensure the appearance of the defendant for later hearings or prevent the defendant from being
charged with a subsequent felony or Class A misdemeanor. As OSAD filed a Rule 604(h)
memorandum that abandoned the additional issues raised in the defendant’s notice of appeal, we
will address only the two arguments supported by the defendant’s memorandum. See [CITATION]
¶ 42 (when a supporting Rule 604(h) memorandum is filed, it becomes the controlling document for issues or claims on appeal and the notice of appeal
[SEGMENT 8]
will not be used to seek out further arguments except in limited circumstances).
¶ 11 The first issue the defendant raises on appeal is the timing of the revocation hearing. The
defendant acknowledges that this issue was not preserved and as such, is forfeited on review, but
requests this court to review the issue under the doctrine of plain error. See [CITATION]
IL App (5th) 230897-U, ¶ 14 (issue forfeited where the defendant failed to object to the State’s
petition and failed to allege the error in the notice of appeal). The plain-error doctrine is a narrow
and limited exception to the general rule of procedural default which allows plain errors or defects
affecting substantial rights to be noticed although the error or defect was not brought to the
attention of the circuit court. [CITATION], 215 Ill. 2d 167, 176 (2005). An otherwise
unpreserved error may be noticed under the plain-error doctrine, codified in Illinois Supreme Court
Rule 615 (eff. Jan. 1, 1967), if the defendant first demonstrates that a clear or obvious error
occurred and then shows that either (1) “the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error,” or (2) the “error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.” [CITATION], 225 Ill. 2d 551, 565 (2007). If the defendant fails to meet his burden of persuasion
under plain error, the issue is forfeited, and the reviewing court will honor the procedural default.
[CITATION], 2018 IL App (4th) 160107, ¶ 55.
¶ 12 Here, the defendant argues that the circuit court erred in conducting the revocation hearing
beyond the 72-hour statutory requirement set forth in section 110-6(a) of the Code (725 ILCS
5/110-6(a) (West 2022)), and that the issue is reviewable under the second prong of plain error.
The supreme court has recognized an error as structural, i.e., a systemic error which serves to erode
the integrity of the judicial process and undermine the fairness of the judicial process requiring
reversal, only in a very limited class of cases. [CITATION], 234 Ill. 2d 173, 197-98 (2009).
Those cases include a complete denial of counsel, trial before a biased judge, racial discrimination
in the selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a
defective reasonable doubt instruction. [CITATION], 238 Ill. 2d 598, 609 (2010).
```plaintext
¶ 13 The initial step in conducting a plain error analysis is to determine whether an error actually
occurred. [CITATION]. Without reversible error, there can be no
plain error. [CITATION]. Thus, we must first determine if the trial
court committed an error in conducting the revocation hearing more than 72 hours after the State
filed its petition to revoke pretrial release.
¶ 14 A defendant’s pretrial release may be revoked only in certain statutorily limited situations.
725 ILCS 5/110-6(a) (West 2022). Section 110-6 of the Code addresses revocation of pretrial
release, the modification of conditions of pretrial release, and sanctions for violations of conditions
of pretrial release. [CITATION], ¶ 11 (citing 725 ILCS 5/110-6 (West
2022)). Section 110-6(a) provides, in relevant part, as follows:
“(a) When a defendant has previously been granted pretrial release under this
Section for a felony or Class A misdemeanor, that pretrial release may be revoked only if
the defendant is charged with a felony or Class A misdemeanor that is alleged to have
occurred during the defendant’s pretrial release after a hearing on the court’s own motion
or upon the filing of a verified petition by the State.
***
Upon the filing of a petition or upon motion of the court seeking revocation, the
court shall order the transfer of the defendant and the petition or motion to the court before
which the previous felony or Class A misdemeanor is pending. The defendant may be held
in custody pending transfer to and a hearing before such court. The defendant shall be
transferred to the court before which the previous matter is pending without unnecessary
delay, and the revocation hearing shall occur within 72 hours of the filing of the State’s
petition or the court’s motion for revocation.” 725 ILCS 5/110-6(a) (West 2022).
``` ¶ 15 The court in [CITATION], recently addressed the issue of
the timing of a revocation hearing. In [CITATION], the circuit court conducted the defendant’s revocation
hearing one day beyond the 72-hour statutory deadline. Id. ¶ 12. The [CITATION] court found, after
conducting a statutory construction analysis, that section 110-6(a) imposed an obligation on the
circuit court to hold the hearing within 72 hours of the State’s petition. Id. ¶ 23. The [CITATION] court
further found, however, that the obligation to conduct the hearing within 72 hours was not
mandatory under the mandatory-directory dichotomy. Id. The mandatory-directory dichotomy
denotes whether the failure to comply with a particular procedural step will, or will not, have the
effect of invalidating the governmental action to which the procedural requirement relates. [CITATION].
¶ 16 In its analysis, the [CITATION] court noted that section 110-6(a) “lacks any negative language
prohibiting further action in the event the hearing is not held within 72 hours of the filing of the
State’s petition, nor are there any other specific consequences prescribed for the court’s failure to
hold a hearing within the specified time frame.” [CITATION], ¶ 20. The [CITATION]
court went on to state as follows:
“We also find no support for the conclusion that the right that section 110-6(a) is
designed to protect would generally be injured under a directory reading. Section 110-6(a)
is designed to protect victims and the community from defendants who are alleged to have
committed felonies or Class A misdemeanors while on pretrial release and to provide
prompt hearings to determine whether revocation is warranted. Although the Code
contemplates that such hearings should be held expeditiously, in particular because a
defendant may be held in custody pending the revocation hearing (see 725 ILCS 5/110-
(a) (West 2022)), a strict mandatory construction of the 72-hour requirement does not
achieve the purpose of the statute to determine whether revocation of previously granted
pretrial release is warranted.” [CITATION] ¶ 21.
¶ 17 Finally, the Green court noted that section 110-6(a) requires the defendant to be transferred
to the court before which the previous felony or Class A is pending and that, in some
circumstances, it may impossible to comply with both statutory requirements that the defendant
be transferred and the hearing conducted within 72 hours. [CITATION] ¶ 22. Therefore, the Green court
conclude that the statute’s 72-hour hearing command was “directory only, and no consequence is
warranted for the court’s failure to hold a hearing within the 72-[hour] period under the particular
facts of this case.” [CITATION] ¶ 23.
¶ 18 We acknowledge that the revocation hearing addressed by the Green court was one day
past the 72-hour time frame, and that the hearing at issue in this appeal was conducted over a week
beyond the 72 hours. We note, however, that the defendant in [CITATION] had been arrested and was in
custody due to the new offenses. [CITATION] ¶ 5. The defendant in this matter was on pretrial release and
not in custody, and as such, the defendant had to be located and served with a summons or arrested
on a warrant to bring him before the court. The defendant was brought before the court on February
26, 2024, and 67 hours later, on February 29, 2024, the revocation hearing occurred.
¶ 19 Therefore, based on the specific facts of this matter and pursuant to the precedent set forth
above, we find that the circuit court erred in failing to conduct the revocation hearing within 72
hours, but that no consequence is warranted given that the revocation hearing was conducted
within 72 hours of the defendant being brought before the court. We further find that, although
there was an error in the circuit court’s failure to conduct the revocation hearing within 72 hours
of the filing of the State’s petition to revoke, it was not a systemic error which served to erode the
integrity of the judicial process and undermine the fairness of the judicial process that would
require reversal. As previously stated, without reversible error, there can be no plain error. Naylor,
[CITATION]. Therefore, we find that the defendant has failed to meet his burden of persuasion
under plain error, the issue is forfeited, and this court will honor the procedural default.
¶ 20 Finally, the defendant also argues under this issue that his defense counsel was ineffective
[SEGMENT 9]
for failing to object to the timing of the hearing. To establish a claim of ineffective assistance of
counsel, a defendant must satisfy the familiar two prong Strickland test of deficiency and
prejudice. See [CITATION]. First, the defendant must prove that
counsel’s performance was so deficient that counsel was not functioning under the standard of
competence under prevailing professional norms. [CITATION].
Second, the defendant must establish prejudice in that the outcome of the proceedings would have
been different or counsel’s deficient performance rendered the result of the proceedings unreliable
or the proceeding fundamentally unfair. Id. A defendant must satisfy both prongs of the Strickland
test and the failure to establish either prong will be fatal to the claim. [CITATION].
¶ 21 Here, the defendant argues that he was prejudiced by defense counsel’s failure to object to
the timing of the revocation hearing since “he lost the ability to stay on pretrial release.” We
disagree. Even if the circuit court had ruled that the hearing could not proceed on the State’s
petition filed on February 14, 2024, the State could have simply refiled the petition and another
hearing could have been conducted within 72 hours of that filing. The defendant makes no
argument that the outcome of any revocation hearing would be different than the outcome of the
hearing on February 29, 2024. Further, due to the delay in the hearing, the defendant was actually
permitted to remain on pretrial release for a longer period of time than if the hearing had been
conducted within the 72-hour deadline. Therefore, we find that the defendant has failed to establish
prejudice and his claim of ineffective assistance of defense counsel must fail.
¶ 22 The second issue that the defendant argues on appeal is that the State failed to prove that
less restrictive conditions of release would be insufficient to ensure the defendant’s appearance at
later hearings or from being charged with a subsequent offense. In considering pretrial release
conditions, the circuit court must determine what conditions, if any, would “reasonably ensure the
appearance of the defendant for later hearings or prevent the defendant from being charged with a
subsequent felony or Class A misdemeanor.” 725 ILCS 5/110-6(a) (West 2022). Our standard of
review of pretrial release determinations is twofold. The circuit court’s factual findings will be
reviewed under the manifest weight of the evidence standard. [CITATION]. “A finding is against the manifest weight of the evidence only if the opposite
conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the
evidence presented.” [CITATION]. “Under the manifest weight
standard, we give deference to the [circuit] court as the finder of fact because it is in the best
position to observe the conduct and demeanor of the parties and witnesses.” Id. The circuit court’s
ultimate determination regarding the revocation of pretrial release, however, will not be reversed
absent an abuse of discretion. [CITATION]. An abuse of discretion
occurs when the decision of the circuit court is arbitrary, fanciful, or unreasonable, or when no
reasonable person would agree with the position adopted by the circuit court. [CITATION].
¶ 23 We have thoroughly reviewed the record on appeal in this matter. The circuit court made
an individualized finding to revoke the defendant’s pretrial release and detain the defendant after
considering the facts presented, arguments made by counsel, and the statutory factors. The circuit
court specifically found that the defendant was previously released with pretrial conditions;
however, the defendant was not compliant with those conditions after his release and was charged
with two new felony offenses. These offenses were for the same offense as the defendant’s original
charge. The circuit court further found that no condition or combination of conditions of pretrial
release could reasonably prevent the defendant from being charged with a subsequent felony or
Class A misdemeanor.
¶ 24 Based on our review of the record, we find that the circuit court’s factual findings were not
against the manifest weight of the evidence and the circuit court’s ultimate determination to revoke
the defendant’s pretrial release and detain the defendant was not an abuse of discretion.
Accordingly, we affirm the circuit court’s revocation order of February 29, 2024.
¶ 25 III. CONCLUSION
¶ 26 For the foregoing reasons, we affirm the February 29, 2024, order of the circuit court of
Macon County, revoking the defendant’s pretrial release.
¶ 27 Affirmed.
2024 IL App (1st) 240405-U
SIXTH DIVISION
May 10, 2024
No. 1-24-0405B
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 24 MC 1107913
)
ALFREDO GARDUNO, ) The Honorable
) Barbara Dawkins,
Defendant-Appellant. ) Judge Presiding.
JUSTICE TAILOR delivered the judgment of the court.
Presiding Justice Oden Johnson and Justice C.A. Walker concurred in the judgment.
ORDER
¶1 Held: The decision of the trial court is affirmed. Even though the defendant did not appear
for a pretrial detention hearing within 48 hours, he was brought before the court
without unnecessary delay and therefore reversal is not warranted.
¶2 I. BACKGROUND
¶3 Alfredo Garduno was arrested on February 6, 2024, at 4:50 am. On Feb 7, 2024, at 2:20
pm, the State’s Attorney’s felony review unit approved charges against him. The Chicago Police
Department (CPD) gave final approval of the charges at 6:31 pm that same day. On February 8,
2024, the State filed a petition to detain Garduno, and he appeared before the court for his pretrial No. 1-24-0405B
detention hearing at approximately 12:40 pm that afternoon. The record does not indicate what
time Garduno was actually brought to the courthouse.
¶4 During the hearing, defense counsel stated, “Your Honor, I would like to note for the
record, Mr. Garduno was arrested on February 6 according to the arrest report at 4:50 a.m. And
has not been -- this is the first time before a Judge on this case. It’s more than 48 hours just for the
record. It’s February 8 at 12:40 p.m.” Defense counsel then asked the court to “consider a remedy”
due to the “violation of the Pretrial Fairness Act given that it’s beyond the 48 hours.” The court
said, “So you are asking that the State’s complaint be dismissed based upon the violation of the 48
hour rule?” Defense counsel stated that she was “ask[ing] for [Garduno’s] release at this point.”
The State argued in response that “this was the first time that this defendant could be brought in
front of a Judge after the charging decision was made. That charging decision was made within
the 48 hours.”
¶5 The court ruled that the failure to bring Garduno before a judge within 48 hours of his arrest
did not automatically require that he be released:
“the Pretrial Fairness Act indicates that there’s a violation. It doesn’t prescribe a remedy. I
don’t find that it would be an appropriate remedy for either dismissal of the case or release
of the defendant. That it would be grossly disproportionate to any violation in this case.
And it would not be prescribed by any statute that I am aware [of] or any case law that I
am aware of. So your request will be denied.”
¶6 The State then proffered evidence to support its detention petition based on the charge of
aggravated criminal sexual abuse. It noted that Garduno had been living with the victim and her
family since 2022 because he was dating the victim’s older sister. Starting around May 2023,
Garduno, who was 17 years old at the time, entered the 12-year-old victim’s room while she was
No. 1-24-0405B
sleeping, penetrated her vagina with his penis, and threatened to “shoot up the house” if she told
anyone. This happened more than once. Garduno also forced the victim to perform oral sex on him
and to rub his penis, and he took photos and videos of her performing sex acts. Garduno threatened
to harm the victim’s family if she told anyone.
¶7 Based on the evidence proffered by the State, the court found that the State proved that the
proof is evident and the presumption is great that Garduno committed these acts, that Garduno
poses a real and present threat to the safety of any person or persons or the community based upon
the specific articulable facts of this case, and that there were no less restrictive conditions that
could avoid the real and present threat that Garduno poses to the community or the complaining
witness based upon the specific articulable facts of this case. Garduno timely appealed.
¶8 II. ANALYSIS
¶9 On appeal, Garduno does not challenge the court’s decision to detain him based on the
[SEGMENT 10]
evidence presented at his detention hearing. Instead, he argues that we should reverse the trial
court’s decision and remand so that the trial court can impose conditions of release because his
pretrial detention hearing was held more than 48 hours after his arrest, in violation of Public Act
101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act (Act).
¶ 10 Garduno argues that section 109-1(a) of the Act was violated, which states:
“[a] person arrested with or without a warrant for an offense for which pretrial release may
be denied under paragraphs (1) through (6) of Section 110-6.1 shall be taken without
unnecessary delay before the nearest and most accessible judge in that county, except when
such county is a participant in a regional jail authority, in which event such person may be
taken to the nearest and most accessible judge, irrespective of the county where such judge
No. 1-24-0405B
presides, within 48 hours, and a charge shall be filed.” 725 ILCS 5/109-1(a) (eff. Jan. 1,
).
¶ 11 In [CITATION], a division of this court addressed the
same issue—whether pretrial release is required when a defendant is not brought before the court
for a pretrial detention hearing within 48 hours after his arrest. In [CITATION], the defendant was
arrested at 2:14 pm on November 8, 2023. Id. ¶ 3. The State’s felony review unit approved charges
against him at 1:31 pm on November 9, 2023, and CPD gave final approval of the charges at 4:30
pm that same day. Id. The defendant was brought before the court at 3:41 pm on November 10,
2023, for his pretrial detention hearing. Id. ¶ 5. Even though the defendant appeared in court an
hour and a half after the statutory deadline outlined in the Act, the trial court granted the State’s
petition and found that the defendant should be detained pretrial. Id. ¶ 13. Defendant appealed,
arguing that the trial court’s order denying his pretrial release should be reversed because he was
not brought before a judge without “unnecessary delay” within 48 hours of his arrest. Id. ¶ 19. This
court disagreed and concluded that because the defendant was “brought to a courthouse within 48
hours of his arrest to appear before a judge” the requirement that he “shall be taken without
unnecessary delay to the nearest and most accessible judge *** within 48 hours” was met. Id. ¶
23. The court noted that CPD “did not give final approval of those charges [against defendant]
until 4:30 p.m.” on November 9, 2023, so “it was impossible for the defendant to be transported
to a courthouse for appearance before a judge on November 9, 2023.” Id. ¶ 27.
¶ 12 The [CITATION] court found our supreme court’s decision in [CITATION],
instructive, which interpreted a previous version of section 109-1. The [CITATION]
court noted that the previous version of the statute did not contain the “48 hour-timeframe for
presenting defendants to the trial court for the filing of charges” and instead, merely required that
No. 1-24-0405B
“[a] person arrested with or without a warrant” be “taken without unnecessary delay before the
nearest and most accessible judge.” Id. ¶ 29. In [CITATION], our supreme court held that “some latitude
is allowed” in determining whether a defendant was presented to the judge “without unnecessary
delay” and explained that “[p]resentment to a judge need be performed only with such reasonable
promptness as the circumstances permit.” [CITATION]. Relying on the supreme
court’s reasoning, the [CITATION] court stated:
“While we recognize that since the passage of the Pretrial Fairness Act the statute has been
amended to include a 48-hour deadline, we believe that the continued inclusion of the
‘without unnecessary delay’ language signals the legislature’s intent to permit for ‘some
latitude’ in fulfilling that deadline. [CITATION]. Accordingly, under the
particular facts of this case, and considering [CITATION], we believe that the defendant’s
presentment to the judge was ‘performed *** with all reasonable promptness’ permitted
under the circumstances. Id. Accordingly, there was no violation of the statute.” [CITATION] ¶ 30.
¶ 13 Applying [CITATION]’s rationale to this case, we find that Garduno was brought before the
court “without unnecessary delay.” Garduno was arrested on February 6, 2024, at 4:50 am. But
because the State and CPD did not finalize their charging decisions until 6:30 pm on February 7,
2024, “it was impossible for [Garduno] to be transported to a courthouse for appearance before a
judge” that day. Id. ¶ 27. Accordingly, the earliest he could have appeared before the court was on
February 8, 2024, which he did. Because Garduno’s “presentment to the judge was ‘performed
*** with all reasonable promptness,’ ” id. ¶ 30, we find no violation of the statute.
¶ 14 Even if we were to conclude that section 5/109-1(a) was violated here, that does not
necessarily mean that pretrial release is required. The statute does not prescribe a remedy for a
No. 1-24-0405B
violation of the 48-hour rule. See [CITATION] (noting
that while the Gerstein rule was codified under a section 109-1(a), the Illinois statute “does not
provide a remedy for its violation”); cf. [CITATION] (noting that while section 109–
1(a) “requires that an arrestee be presented to a judge ‘without unnecessary delay,’ noncompliance
therewith does not, by itself, obviate a confession or render an otherwise voluntary confession
inadmissible at trial. Rather, such delay is merely a factor to be considered on the question of
voluntariness.”) In [CITATION], this court interpreted a section
of the Act with similar language, section 110-6(a), which addresses revocation of pretrial release
and states that a defendant “shall be transferred to the court before which the previous matter is
pending without unnecessary delay, and the revocation hearing shall occur within 72 hours of the
filing of the State’s petition.” Because the statute lists no “specific consequences *** for the court’s
failure to hold a hearing within the specified time frame,” the court found the language was
directory, not mandatory, and concluded that although the defendant’s revocation hearing took
place after the 72-hour period specified in the statute, “no consequence [wa]s warranted.” Id. ¶¶
18, 20, 23. See also [CITATION] (quoting [CITATION]) (declining to vacate order revoking defendant’s pretrial release
even though a hearing on the State’s petition was not held within 72 hours, as required by statute,
noting that “the statute itself provides no such remedy for a violation of the 72-hour requirement,”
and reasoning that it could not “supply omissions, remedy defects, annex new provisions,
substitute different provisions, exceptions, limitations or conditions, or otherwise change the law
so as to depart from the language employed [by the legislature]”).
¶ 15 Garduno points to [CITATION], to support
his position that he should be released on remand. There, the defendant was arrested, charged with
No. 1-24-0405B
several felony offenses, and made his initial appearance in court on December 24, 2023. Id. ¶ 4.
The State filed a petition seeking to deny defendant’s pretrial release; the State also filed a motion
to continue the hearing until December 27, which the court granted. Id. ¶ 5. Although defendant
argued that section 110-6.1(c)(2) required the hearing to be conducted within 48 hours of his initial
appearance in court, the court granted the State’s petition. Id. ¶ 6. On appeal, this court reversed,
finding that the statute “clearly requires” a hearing on the State’s petition to deny a defendant
pretrial release to be conducted within 48 hours of defendant’s initial appearance. Id. ¶ 11. It found
that the trial court erred when it failed to comply with the procedural requirements of section 110-
6.1(c)(2) and concluded that the “appropriate remedy” was “remand *** for the purpose of
promptly holding a hearing to determine the least restrictive conditions of defendant’s pretrial
release.” Id. ¶ 18.
¶ 16 [CITATION] is distinguishable because it involves section 110-6.1(c)(2) of
the Act, which states that a pretrial detention hearing “shall be held within 48 hours of the
defendant’s first appearance****” 725 ILCS 5/110-6.1(c)(2) (eff. Jan. 1, 2023). The mandatory
language of section 110-6.1(c)(2) includes no exceptions. See [CITATION] (“It is a cardinal rule of statutory construction that we cannot rewrite a
[SEGMENT 11]
statute, and depart from its plain language, by reading into it exceptions, limitations, or conditions
not expressed by the legislature.”) Section 5-109(1)(a), by contrast, states that the defendant “shall
be taken without unnecessary delay before the nearest and most accessible judge in that county
*** within 48 hours.” (Emphasis added.) Like the [CITATION] court, we find that “the continued
inclusion of the ‘without unnecessary delay’ language [in section 5-109(1)(a)] signals the
legislature’s intent to permit for ‘some latitude’ in fulfilling that deadline.” [CITATION]. See also [CITATION],
No. 1-24-0405B
181, 193 (2008) (“When the legislature uses certain language in one part of a statute and different
language in another, we may assume different meanings were intended.”)
¶ 17 Moreover, we note that the Act was “designed to protect victims and the community from
defendants who are alleged to have committed felonies,” so “a strict mandatory construction of the
[48]-hour requirement does not achieve the purpose of the statute.” [CITATION]. Accordingly, although Garduno’s detention hearing took place several hours
after the 48-hour window in section 5/109(1)(a), we find that there was no “unnecessary delay”
and that the hearing was performed “with such reasonable promptness as the circumstances
permit[ted],” ([CITATION]), especially in light of the fact that the charging decisions
were not finalized until the evening of February 7, making it impossible for Garduno’s detention
hearing to take place before February 8. In addition, we do not see how this minor delay “could
have or did prejudice the outcome of [Garduno’s] pretrial detention proceedings, particularly since
his case was heard by the judge before the end of that business day.” [CITATION], ¶ 26. See also [CITATION], ¶¶ 22-23 (the court’s failure to hold a
detention hearing within 72 hours did not violate section 110-6(a) of the Act, because the hearing
“occurred at the first possible opportunity” and the “one-day delay d[id] not thwart the legislative
intent to hold a prompt hearing”). Garduno makes no arguments in his brief that would lead us to
conclude otherwise. Therefore, we hold that reversal of the trial court’s detention order is
unwarranted.
¶ 18 III. CONCLUSION
¶ 19 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 20 Affirmed.
2024 IL App (1st) 240204U
Nos. 1-24-0204B & 1-24-0309B cons.
Order filed May 3, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 23 CR 12670
)
CURTIS BROWN, JR., ) Honorable
) James Bryan Novy,
Defendant-Appellant. ) Judge, Presiding.
PRESIDING JUSTICE ODEN JOHNSON delivered the judgment of the court.
Justices C.A. Walker and Tailor concurred in the judgment.
ORDER
¶1 Held: Trial court’s order granting the State’s petition for revocation was not an abuse of
discretion where the State met its burden of proving by clear and convincing
evidence the defendant poses a real and present threat to the safety of any person
or persons or the community because while on pretrial release, the defendant was
charged with committing a battery.
¶2 BACKGROUND
¶3 A summary of the relevant evidence proffered by the parties during the hearing on the
State’s petition for revocation of pretrial release is as follows: In March of 2023, defendant Curtis Nos. 1-24-0204B & 1-24-0309B cons.
Brown Jr. was charged with five counts of cyberstalking and harassment. Count 1 charged him
with cyberstalking and causing fear to a person (see 720 ILCS 5/12-7.5(a)(1) (West 2022)) in that
on October 30, 2022, and between November 3 and November 11, 2022, defendant sent numerous
emails to the lab manager at University of Chicago Mindworks Museum and subsequently the
museum’s general counsel. These emails were threatening in nature and allegedly included
remarks to kill and inflict extreme harm on the recipients. On the same alleged facts, Counts II and
IV charged him with cyberstalking and causing a person to suffer emotional distress. Count III
alleges cyberstalking through electronic communication. Count V charged him with harassment
and threatening injury to the person.
¶4 Defendant was taken into custody on these charges and the court granted defendant pretrial
release for the alleged offenses. The State’s petition to revoke pretrial release arose from an
incident which occurred on January 2, 2024. Officers allegedly were approached by someone at a
McDonald’s who stated defendant committed a battery near the restaurant. Officers later detained
Brown and conducted a show up. The complaining witness allegedly identified the person who
attacked him as defendant. Prior to defendant’s alleged battery, the court ordered defendant to
adhere to a curfew, which he allegedly failed to abide by on several occasions between December
14 and December 27, 2023. Defendant made a court appearance on December 28, 2023, where the
trial court informed him that any more violations would lead to a revocation of pretrial release.
¶5 The State filed a Petition for Revocation of Pretrial Release based on the arrest and
subsequent battery charge. The hearing for revocation of pretrial release was held on January 4,
2024, and was continued to January 5, 2024. The court emphasized that it would not consider any
evidence presented at the January 4 hearing because defense counsel had not received all the
Nos. 1-24-0204B & 1-24-0309B cons.
discovery gathered by the State. At the hearing, the State asserted that defendant demonstrated that
he is a clear and present danger to the community. Furthermore, they argued that defendant’s
failure to comply with pretrial release curfew conditions proved there were no conditions that
could reasonably ensure the safety of the public or prevent him from being charged with another
felony or Class A misdemeanor.
¶6 At the hearing, defendant argued for release with the same conditions as the original pretrial
release. Those conditions included a 7 p.m. curfew at a hotel funded through mental health services
that he was receiving at the time. Defendant asserted that the State focused on issues in the case
unrelated to the reason he was before the court, which was the recent Class A misdemeanor battery.
Defense counsel also asked the court to consider defendant’s argument that he acted in self-defense
when he was charged with misdemeanor battery. Defendant stated he did not have contact with
either of the alleged victims deriving from the charges of cyberstalking and harassment. Defendant
also noted that there had been no reported violations of pretrial release conditions since he was
warned on December 28, 2023. Additionally, defense counsel stated that defendant did not
understand the terms of his pretrial release curfew prior to the December 28, 2023, appearance.
¶7 After hearing, the trial court found that defendant violated the pretrial release conditions
by being charged with battery. The court noted the presumption was great that defendant
committed the offense alleged and defendant poses a real and present threat to the safety of the
complaining witness in the battery case, as well as the community. Furthermore, the trial court
relied on emails showing threats defendant made towards the University of Chicago to make its
decision. Those emails included threats of violence towards the police, the complaining witness, a
Nos. 1-24-0204B & 1-24-0309B cons.
high school, and K9 units. Defendant’s counsel filed a notice of appeal from the trial court’s order
revoking his pretrial release and requested this court vacate that order.
¶8 Defendant’s appeal was timely filed within 14 days, thereby conferring jurisdiction upon
this court. In considering this appeal, we have reviewed the following documents that were
submitted pursuant to Rule 604(h): defendant’s notice of appeal from the order under the Pretrial
Fairness Act, defendant’s memorandum, and the State’s memorandum in response.
¶9 ANALYSIS
¶ 10 On appeal, defendant filed a Notice in Lieu of Rule 604(h) Memorandum. Defendant
challenges the order granting the State’s petition to revoke pretrial release and denying his petition
for release by arguing that: 1) the State failed its burden by clear and convincing evidence that the
proof is evident or the presumption is great that defendant committed the offense charged; 2) the
circuit court erred in its determination that no condition or combination of conditions would
reasonably ensure the appearance of defendant for later hearings or prevent defendant from being
[SEGMENT 12]
charged with a subsequent felony or Class A misdemeanor; 3) the court and the State improperly
treated the petition to revoke as an initial petition to detain; 4) the court’s determination that he is
a danger to the community is irrelevant for a petition to revoke, and the court’s findings are
insufficient to revoke release under 725 ILCS 5/110-6 (West 2022); and 5) the court failed to abide
by 725 ILCS 5/110-6(a) (West 2022) in that it refused to immediately release him once the charge
which was the basis of the petition to revoke was dismissed.
¶ 11 In response, the State’s argues that defense counsel’s argument is without merit because
the box counsel checked on the notice of appeal form applied to orders granting petitions for
pretrial detention under section 110-6.1 and not the order revoking pretrial release under section
Nos. 1-24-0204B & 1-24-0309B cons.
110-6(a). The State further argues that defense counsel’s argument that there were inconsistencies
between the proffers on January 4 and January 5, 2024, is without merit because the court clarified
that it would not consider the former proceedings when defense counsel had not received the
discovery the State gathered. The State relies on [CITATION] to
argue that the court found the ground for relief on the preprinted Rule 604(d) form was irrelevant
to the defendant’s appeal of revocation of pretrial release. Lastly, the State argues that defendant’s
argument that the hearing focused on the underlying cyberstalking charges as opposed to the new
battery charge is unsupported by section 110-6(a) of the Pretrial Release Act (Act) (725 ILCS
5/110-6(a) (West 2022)). The State contends that section 110-6(a) is “designed to protect victims
and the community from defendants who are alleged to have committed felonies or Class A
misdemeanors while on pretrial release.” [CITATION], ¶ 21.
¶ 12 Pretrial detention orders are reviewed for an abuse of discretion. [CITATION], ¶¶ 10-11. A mere disagreement with a circuit court’s decision to place a
defendant in pretrial detention would not justify calling the decision an abuse of discretion. Id. The
decision is an abuse of discretion only if it is “arbitrary, fanciful, or unreasonable” or only if no
reasonable person would have agreed with the position adopted by the court. Id. ¶ 10.
¶ 13 According to the Act, it is presumed that a defendant has the right to be released on personal
recognizance under the condition that they attend all necessary court proceedings and refrain from
committing any criminal offenses, while also complying with all pretrial release terms (725 ILCS
5/110-2(a) (West 2022)). The responsibility lies with the State to demonstrate, with clear and
convincing evidence that no combination of release conditions would sufficiently ensure the
defendant’s appearance in court or prevent defendant from committing a subsequent felony or
Nos. 1-24-0204B & 1-24-0309B cons.
Class A misdemeanor [CITATION]. If such evidence is presented, the
circuit court has the authority to order the defendant’s detention, particularly if defendant is
charged with a qualifying offense and deemed to pose a genuine and immediate threat to the safety
of individual or the community [CITATION]. However, if the court
determines that detention is not warranted, it may opt to impose additional conditions. [CITATION].
¶ 14 In cases where pretrial release is previously granted, it may only be revoked if the defendant
is charged with a felony or Class A misdemeanor that is alleged to have occurred during the
defendant’s pretrial release. [CITATION]. During a hearing for revocation of
pretrial release, the court shall consider all relevant circumstances, including nature and
seriousness of the offense. Id. If the court decides revocation is not appropriate, the defendant may
be released pretrial without modification to conditions of pretrial release. Id. In cases where pretrial
release is previously granted, it may only be revoked if the defendant is charged with a felony or
Class A misdemeanor that is alleged to have occurred during the defendant’s pretrial release. [CITATION]. During a hearing for revocation of pretrial release, the court shall
consider all relevant circumstances, including nature and seriousness of the offense. Id. If the court
decides revocation is not appropriate, the defendant may be released pretrial without modification
to conditions of pretrial release. Id.
¶ 15 In a hearing on the petition for the revocation of pretrial release, the State must prove by
clear and convincing evidence that either no condition or combination of conditions will ensure
the defendant’s appearance in later hearings; or no condition or combination of conditions would
====== End of Part of a Court Ruling ====== Nos. 1-24-0204B & 1-24-0309B cons.
prevent the defendant from being charged with another Class A misdemeanor or felony. 725 ILCS
5/110-6 (West 2022).
¶ 16 In this case, the trial court did not abuse its discretion in determining that there were no
conditions that could have prevented defendant from being charged with a subsequent Class A
misdemeanor. The record shows that defendant allegedly committed a battery while out on pretrial
release by sending several violent threats to workers at the University of Chicago. While defendant
argues the State proffered facts that were unsupported and irrelevant, the crime alleged against the
victim is one of a violent nature and the public safety of the alleged victim and the community are
at risk. The new alleged crime, coupled with the charges already pending against defendant, and
evidence of defendant threatening violent acts towards a high school and other people demonstrate
that defendant is a real and present threat to safety of the community. Additionally, we note that
defendant was residing in a hotel where he was receiving mental care, and counsel for defendant
has alleged that defendant cannot be placed on electronic monitoring while living at the hotel.
Therefore, electronic home monitoring is not an option.
¶ 17 Defendant further alleges that the court and the State improperly treated the petition to
revoke as an initial petition to detain despite it being untimely. However, under 725 ILCS 5/110-
6(a) (West 2022), the circuit court is required to consider “all relevant circumstances, including,
but not limited to, the nature and seriousness of the violation alleged.” In this case, the alleged
threats, some for which he had not been charged, must be considered when making the decision
on whether to revoke pretrial release. Furthermore, defendant argues that the court’s determination
that he is a danger to the community is irrelevant for a petition to revoke, and that the court’s
Nos. 1-24-0204B & 1-24-0309B cons.
findings are insufficient to revoke release under section 110-6. We disagree because section 110-
6 states:
“The court shall consider all relevant circumstances, including, but not limited to,
the nature and seriousness of the violation or criminal act alleged. The State shall bear the
burden of proving, by clear and convincing evidence, that no condition or combination of
conditions of release would reasonably ensure the appearance of the defendant for later
hearings or prevent the defendant from being charged with a subsequent felony or Class
A misdemeanor.” 725 ILCS 5/110-6 (West 2022).
¶ 18 Since the trial court must take all relevant circumstances into consideration, defendant’s
danger to the community is a circumstance that must be considered in the determination of whether
to grant a revocation of pretrial release. Additionally, based on the new charge, no condition or
combination of conditions would prevent defendant from being charged with another violent
felony or misdemeanor if he was released from custody. Therefore, defendant’s dangerousness to
the community is relevant to the determination of whether the petition for revocation of pretrial
release should be granted.
¶ 19 This case at hand is analogous to the case [CITATION]. In [CITATION], the court held that the circuit court did not abuse its discretion by determining that no
condition or combinations of conditions would prevent the defendant from being charged with a
Class A misdemeanor. In that case, the defendant was charged with aggravated battery of a peace
officer and was out on pretrial release. While out on pretrial release, the defendant was charged
with a new felony of armed habitual criminal. Officers observed the defendant trespassing and
when the defendant was placed into custody, officers discovered he was armed. The State filed a
petition for revocation of pretrial release, arguing no conditions or combination of conditions of
release would reasonably ensure the appearance of the defendant for later hearings and prevent
Nos. 1-24-0204B & 1-24-0309B cons.
him from being charged with a subsequent felony or Class A misdemeanor. The court granted the
State’s petition, finding that no conditions could prevent a subsequent felony or misdemeanor. On
appeal, the decision was affirmed. The court found the circuit court did not err when it revoked
the defendant’s pretrial release. The court stated that given the defendant’s criminal history, it was
not “unreasonable, arbitrary, or fanciful” for the trial court to find no conditions or combination of
conditions would be sufficient to prevent the defendant from being charged with another felony or
Class A misdemeanor.
¶ 20 In the current case, defendant was out on pretrial release from charges of cyberstalking and
[SEGMENT 13]
harassment of individuals at the University of Chicago’s Mindworks Museum. While out on
pretrial release, defendant allegedly committed a battery on an individual at a McDonald’s
restaurant. Prior to the commission of the alleged battery, defendant committed multiple violations
of his pretrial release curfew conditions. This along with defendant’s alleged commission of a
battery, leads us to affirm the trial court’s findings that no conditions or combination or conditions
would reasonably ensure the appearance of defendant for later hearings or prevented defendant
from being charged with a subsequent felony or Class A misdemeanor.
¶ 21 Thus, the trial court did not abuse its discretion in determining there were no conditions or
combination of conditions that could have prevented defendant from being charged with a
subsequent felony or Class A misdemeanor.
¶ 22 CONCLUSION
¶ 23 For the foregoing reasons, we affirm the circuit court’s judgement.
¶ 24 Affirmed.
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
2024 IL App (1st) 240211
No. 1-24-0211B
Second Division
April 11, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 22600126901
v. )
)
OSONIA GREEN, ) Honorable
) Vincenzo Chimera
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and opinion.
OPINION
¶1 Defendant Osonia Green appeals the order of the circuit court revoking his pretrial release
pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110 et seq.)
(West 2022)), commonly known as the Pretrial Fairness Act. Among other things, defendant
argues that the court erred in detaining him where the State did not prove that less restrictive means
such as electronic monitoring were insufficient to prevent him from being charged with subsequent
offenses. For the reasons that follow, we affirm.
No. 1-24-0211B
¶2 I. BACKGROUND
¶3 On March 3, 2022, defendant was arrested for endangering the life or health of a child, a
Class A misdemeanor. 720 ILCS 5/12C-5(a)(1), (d) (West 2022). The charges generally alleged
that defendant left a loaded handgun where it was accessible to his three-year-old son. While
defendant was “intoxicated on the floor,” the child got a hold of the gun and shot himself in the
foot. Defendant was released on a recognizance bond.
¶4 On January 11, 2024, while still on release for the child endangerment case, defendant was
arrested on new charges based on an incident at the Beverly Motel in Chicago. On that date, police
responded to a call of a domestic disturbance at the motel and made contact with the complaining
witness, who told them that defendant would not allow her to leave their motel room. Officers
asked defendant if he had any firearms on him, and he told them that he did not. Officers also
asked defendant if there were any firearms in the room, and defendant again told them that there
were not. However, the officers noticed an “L-shaped bulge” in defendant’s waistband, which a
protective pat down revealed to be a loaded 9mm handgun. Defendant had not been issued a valid
Firearm Owners Identification Card or Concealed Carry License. During the pat down, police also
discovered on defendant’s person containers of suspect heroin and suspect crack cocaine, as well
as a glass pipe. Based on this evidence, defendant was charged with armed violence (720 ILCS
5/33A-2(a) (West 2022)) (a Class X felony), possession of less than 15 grams of heroin and less
than 15 grams of cocaine (720 ILCS 570/402(c) (West 2022)) (both Class 4 felonies), and
possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2022)) (a Class A misdemeanor).
¶5 The next day, January 12, 2024, the State filed a petition to revoke defendant’s pretrial
release based on the new charges. The circuit court held a hearing on the State’s petition on January
17, 2024. At the hearing, the State contended that defendant’s release should be revoked because
-2-
No. 1-24-0211B
no condition or combination of conditions would reasonably prevent him from being charged with
a subsequent felony or Class A misdemeanor. Defendant argued that he should not be detained
because “less restrictive means” such as electronic monitoring would reasonably prevent him from
committing subsequent offenses.
¶6 The court granted the State’s motion to revoke pretrial release, finding that “there is clear
and convincing evidence that no condition or combination of conditions of release would
reasonably prevent the defendant from being charged with a subsequent felony or misdemeanor.”
The court stated that it based this finding in part on the fact that both cases involved firearms,
reasoning that “[e]ven if I were to give [defendant] electronic monitoring that would not prevent
him from getting another gun.”
¶7 This appeal followed.
¶8 II. ANALYSIS
¶9 At the outset, we note that defendant has opted not to file a memorandum on appeal.
Instead, defendant stands on the issues raised in his notice of appeal, which identifies four sources
of error.
¶ 10 First, defendant has checked the box on the preprinted notice of appeal form indicating that
he was “denied an opportunity for a fair hearing prior to the entry of the order denying or revoking
pretrial release.” In the space provided below, defendant has written, in its entirety, that, “The
petition was filed on 01/12/2024 and the hearing was scheduled for 01/16/2024 which is after the
72 hour time frame that the petition [sic] must be held. The hearing was not held until 01/17/2024.”
¶ 11 The Code provides that, upon the State’s petition to revoke a defendant’s pretrial release,
“[t]he defendant shall be transferred to the court before which the previous matter is pending
-3-
No. 1-24-0211B
without unnecessary delay, and the revocation hearing shall occur within 72 hours of the filing of
the State’s petition[.]” (Emphasis added.) 725 ILCS 5/110-2(a) (West 2022).
¶ 12 In this case, the State’s petition was filed on Friday, January 12, 2024, meaning that the
hearing would normally have needed to be held no later than Monday, January 15, 2024. However,
because that day was a court holiday in observance of Martin Luther King, Jr. Day, the deadline
was extended to the next business day, January 16, 2024. See Cook County Special Order 2023-
101 (eff. Aug. 9, 2023), https://www.cookcountycourt.org/ABOUT-THE-COURT/Legal-Court-
Holidays. The record reflects that the hearing was indeed originally scheduled for January 16,
2024, but was then held on call because Judge Chimera was not at the courthouse that day. Thus,
the hearing did not occur until January 17, 2024, one day late.
¶ 13 With that established, the question remains as to what relief, if any, defendant is entitled.
See People v. Robinson, 217 Ill. 2d 43, 51 (2005) (“[T]here is no dispute that ‘shall’ means shall,
and therefore the clerk failed to do something that was obligatory. The issue is the consequence of
the clerk’s failure.” (emphasis in original)); People v. Geiler, 2016 IL 119095, ¶ 12 (“there is no
dispute that the 48–hour requirement in Rule 552 [requiring an arresting officer to transmit
portions of a ticket to the circuit court clerk within 48 hours after an arrest] was violated in this
case. Rather, the issue is the appropriate consequence for the Rule 552 violation.”).
¶ 14 In his notice of appeal, defendant simply requests relief in the form of “Release from
Custody.” The State responds that defendant is not entitled to any relief because he failed to offer
any argument or authority for his request of release.
¶ 15 We agree with the State that defendant has provided an insufficient legal basis on which
grant the requested relief. Defendant appealed the circuit court’s order pursuant to Illinois Supreme
Court Rule 604(h)(2) (eff. Sept. 18, 2023), which provides that a notice of appeal “shall describe
-4-
No. 1-24-0211B
the relief requested and the grounds for the relief requested.” Id. ¶ 24. Consequently, “[w]e have
repeatedly admonished litigants that this court is not a depository into which the parties may dump
the burden of argument and research.” People v. Woods, 2024 IL App (3d) 230592, ¶ 31. The brief
description in defendant’s notice of appeal merely explains that the hearing on the State’s petition
was untimely, but falls well short of explaining why such an error warrants reversal of the circuit
court’s order.
¶ 16 In addition, even if we were to reach the merits of defendant’s claim, such a claim would
fail. As set forth above, the statute provides that when a defendant has previously been granted
pretrial release, that pretrial release may be revoked if the defendant is charged with a felony or
Class A misdemeanor that is alleged to have occurred during the defendant’s pretrial release, after
a hearing on the court’s own motion or upon the filing of a verified petition by the State. 725 ILCS
5/110-6(a) (West 2022). The statute further provides that the defendant “shall be transferred to the
court before which the previous matter is pending without unnecessary delay,” and the revocation
hearing “shall occur within 72 hours of the filing of the State's petition or the court's motion for
revocation.” Id.
¶ 17 Defendant’s challenge requires us to determine whether the 72-hour statutory requirement
is mandatory or directory. See Robinson, 217 Ill. 2d at 51–52 (“the ‘directory’ or ‘mandatory’
designation *** simply denotes whether the failure to comply with a particular procedural step
will or will not have the effect of invalidating the governmental action to which the procedural
requirement relates.”). Whether a statutory command is mandatory or directory presents a question
of statutory construction, which we review de novo. In re M.I., 2013 IL 113776, ¶ 15. When
construing a statute, our primary objective is to ascertain and give effect to legislative intent, the
surest and most reliable indicator of which is the statutory language itself, given its plain and
-5-
No. 1-24-0211B
ordinary meaning. Id. In determining the plain meaning of statutory terms, we consider the statute
in its entirety, keeping in mind the subject it addresses and the apparent intent of the legislature in
enacting it. Id.
¶ 18 We presume that language issuing a procedural command to a government official
indicates an intent that the statute is directory. In re M.I., 2013 IL 113776, ¶ 17. The presumption
is overcome, and a provision will be read as mandatory, under either of two conditions: (1) when
there is negative language prohibiting further action in the case of noncompliance or (2) when the
right the provision is designed to protect would generally be injured under a directory reading. Id.
¶ 19 As set forth above, the very limited arguments in defendant’s notice of appeal made no
specific contention that 725 ILCS 5/110-6(a) should be read to impose a mandatory obligation
under either of the above conditions. However, based on our review, we conclude that neither
condition applies.
¶ 20 First, section 110-6(a) of Code lacks any negative language prohibiting further action in
the event the hearing is not held within 72 hours of the filing of the State’s petition, nor are there
any other specific consequences prescribed for the court’s failure to hold a hearing within the
specified time frame. See 725 ILCS 5/110-6(a) (West 2022). Had the legislature intended a
mandatory reading, it could have written, for example, that any detention order imposed is void if
the hearing was held more than 72 hours after the filing of the State’s motion. See Robinson, 217
Ill. 2d at 58. However, it did not do so.
¶ 21 We also find no support for the conclusion that the right which section 110-6(a) is designed
to protect would generally be injured under a directory reading. Section 110-6(a) is designed to
protect victims and the community from defendants who are alleged to have committed felonies
or Class A misdemeanors while on pretrial release, and to provide prompt hearings to determine
-6-
No. 1-24-0211B
whether revocation is warranted. Although the Code contemplates that such hearings should be
held expeditiously, in particular because a defendant may be held in custody pending the
revocation hearing (see 725 ILCS 5/110-6(a) (West 2022)), a strict mandatory construction of the
72-hour requirement does not achieve the purpose of the statute to determine whether revocation
of previously-granted pretrial release is warranted.
¶ 22 We also note that the statute mandates that the revocation hearing will be conducted by the
same trial judge who ordered the defendant’s pretrial release, who would be most familiar with the
original charge, and who can best analyze the impact of the new charges on the judge’s previous
decision. See id. (upon the court’s own motion or a State’s petition to revoke, the court “shall order
the transfer of the defendant and the petition or motion to the court before which the previous
felony or Class A misdemeanor is pending” and the “defendant shall be transferred to the court
before which the previous matter is pending without unnecessary delay”). In some circumstances,
like those presented here, it may be impossible for the hearing to comply with both statutory
mandates—that it be before the same trial judge, and that it is conducted within 72 hours. In this
case, the State’s petition was filed on Friday, January 12, 2024. Monday, January 15, 2024, was a
court holiday, and the trial judge who had previously ordered pretrial release was unavailable on
Tuesday, January 16, 2024. Accordingly, the hearing occurred at the first possible opportunity—
on Wednesday, January 17, 2024. This one-day delay does not thwart the legislative intent to
hold a prompt hearing before the judge most familiar with the matter.
¶ 23 In summary, we conclude that section 110-6(a) imposes an obligation on the circuit
court to hold a hearing within 72 hours of the State’s petition. However, this obligation is not
mandatory with respect to the mandatory-directory dichotomy. In so holding, we are not
discouraging the timely disposition of hearings under section 110-6(a). We conclude, however,
-7-
No. 1-24-0211B
that the statute’s command is directory only, and no consequence is warranted for the court’s
failure to hold a hearing within the 72-period under the particular facts of this case.
¶ 24 Next, defendant argues that he should be released from custody because the State’s petition
to revoke his release erroneously cited section 110-6(b) of the Code rather than section 110-6(a).
¶ 25 Revocation of a defendant’s pretrial release is governed by section 110-6 of the Code. 725
ILCS 5/110-6 (West 2022). Section 110-6(a) provides that release may be revoked only if (1) the
defendant had previously been granted release for either a felony or a Class A misdemeanor, (2)
the defendant is charged with a new felony or Class A misdemeanor alleged to have occurred while
the defendant was on release, and (3) either the State files a verified petition for revocation or the
court moves to revoke on its own motion. Id. § 110-6(a). Upon the filing of a verified petition, or
on the court’s own motion, the court may revoke release after a hearing if the State proves, by
clear and convincing evidence, that “no condition or combination of conditions of release would
reasonably ensure the appearance of the defendant for later hearings or prevent the defendant from
being charged with a subsequent felony or Class A misdemeanor.” Id.
¶ 26 Section 110-6(b), on the other hand, applies only to those defendants who have been
previously granted pretrial release for a Class B or Class C misdemeanor. Id. § 110-6(b).
Specifically, section 110-6(b) provides that defendants who are charged with a subsequent felony
or Class A misdemeanor while on release for a Class B or Class C misdemeanor are not eligible
for revocation, but may be subject to sanctions or modification of their release conditions. Id.
¶ 27 Here, defendant had been previously granted release for endangering the life or health of a
child, which is a Class A misdemeanor. 720 ILCS 5/12C-5(a)(1), (d) (West 2022). Thus, there is
no dispute that he was theoretically eligible for revocation under section 110-6(a). Moreover,
-8-
No. 1-24-0211B
section 110-6(b) would not apply to defendant, as he had not been previously granted release for
a Class B or Class C misdemeanor.
¶ 28 However, as is the crux of defendant’s argument on appeal, the State’s petition for
revocation erroneously stated that it was filed “pursuant to 725 ILCS 5/110-6(b)[.]” According to
defendant, this error renders him “wrongly detain[ed].” The State maintains that it was “nothing
more than a scrivener’s error” and did not result in prejudice to defendant.
¶ 29 We agree with the State. Although the body of the State’s petition references section 110-
6(b) in one instance, it is clear that the parties understood the document to be a revocation petition
under section 110-6(a). First, the petition is entitled “Petition for Revocation of Pretrial Release.”
As previously explained, only section 110-6(a) deals with the revocation of pretrial release. The
body of the petition also states that it is a “verified petition for revocation” that was filed “because
the defendant, while on pretrial release for a Felony or Class A misdemeanor, is charged with a
new Felony or Class A misdemeanor[.]” Similarly, the petition requests as relief “a revocation
hearing” at which the State would attempt to prove “no condition or combination of conditions of
release would reasonably *** prevent the defendant from being charged with a subsequent Felony
or Class A Misdemeanor.” Again, all of this language applies only to revocation hearings
conducted under section 110-6(a), not section 110-6(b). Additionally, the transcript from the
revocation hearing clearly shows that neither defense counsel nor the circuit court had any
confusion as to the nature of the proceedings. Thus, defendant’s argument is meritless.
¶ 30 Defendant’s next claim of error is that the State failed to prove, by clear and convincing
evidence, that no condition or combination of conditions of pretrial release would reasonably
prevent him from being charged with a subsequent felony or Class A misdemeanor. More
-9-
No. 1-24-0211B
specifically, defendant maintains that the court could have used less restrictive means like
electronic monitoring to prevent him from being charged with new offense.
¶ 31 Initially, we must address the standard of review. The State acknowledges that the standard
of review for pretrial detention appeals is currently “in flux,” but contends that we should affirm
under any standard. Defendant, not having filed an appellant memorandum, has made no comment
on the standard of review.
¶ 32 It appears that only one published decision has directly addressed the standard of review
for orders to revoke a defendant’s pretrial release. In People v. Perez, 2024 IL App (2d) 230504,
¶ 13, the Second District held that “[a] circuit court’s decision to detain a defendant is reviewed
using a two-part standard of review” whereby (1) the court’s factual findings are reviewed under
the manifest weight of the evidence standard but (2) the ultimate decision of whether a defendant
should be detained is reviewed for abuse of discretion. However, the Perez court did not
distinguish between the review of revocation proceedings under section 110-6(a) of the Code and
the review of denials of pretrial release under section 110-6.1, reasoning that the standard is the
same under either section. Id.
¶ 33 In light of the similar language and purposes of sections 110-6 and 110-6.1, we agree with
Perez that the same standard of review should apply under both sections. But that does not resolve
the issue because, as this court has recognized many times, there is an ongoing debate about the
proper standard of review in appeals brought under section 110-6.1. For example, in People v. Lee,
2024 IL App (1st) 232137, ¶¶ 20-22, we detailed the “significant disagreement” about the standard
of review among the appellate courts, but ultimately concluded that we did not need to decide the
matter where we would reach the same decision under any standard.
- 10 -
No. 1-24-0211B
¶ 34 Here, as in Lee, we would affirm the circuit court’s decision to revoke defendant’s pretrial
release under any standard of review. Defendant asserts that the court erred by determining that
electronic monitoring would not reasonably prevent him from being charged with a subsequent
felony or Class A misdemeanor. The circuit court rejected this argument below, opining that
electronic monitoring “would not prevent [defendant] from getting another gun.” The court
explained that it placed great weight on the fact that both of defendant’s pending cases involved a
firearm. Indeed, the record reflects defendant’s propensity to mix the dangerous combination of
firearms and illegal substances. He was initially charged with child endangerment for allowing his
young son to shoot himself while he, defendant, was “intoxicated on the floor.” Then, albeit 22
months later, defendant was arrested again after a domestic disturbance while in illegal possession
of a firearm, drugs, and a pipe with which to consume those drugs. We also note that both of these
instances could just have easily occurred at defendant’s home if he were confined there on
electronic monitoring. Under these circumstances, we agree with the circuit court’s assessment
that no condition or combination of conditions would reasonably prevent defendant from being
charged with a subsequent felony or Class A misdemeanor. 1
¶ 35 Finally, we briefly acknowledge that defendant also argues that the State failed to prove
that “no condition or combination of conditions can mitigate the real and present threat to the
safety of any person or persons or the community[.]” However, defendant’s release was revoked
under section 110-6(a) of the Code, which does not require the State to prove this factor. 725 ILCS
5/110-6(a) (West). The language cited by defendant refers to the State’s burden in a hearing for
1
Defendant’s notice in lieu of an appellant memorandum also suggests that he challenges the
court’s determination that electronic monitoring would not reasonably ensure his appearance at future
court proceedings. However, we need not address this argument because the record clearly shows that the
court did not rely on this basis for revoking defendant’s release.
- 11 -
No. 1-24-0211B
the denial of pretrial release under section 110-6.1 of the Code, not a revocation hearing under
section 110-6(a). 725 ILCS 5/110-6.1; Perez, 2024 IL App (2d) 230504, ¶ 15. We therefore need
not address this argument, as it is irrelevant to the order being appealed.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the judgment of the circuit court.
¶ 38 Affirmed.
- 12 -
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"1",
"4",
"5",
"6",
"7",
"8",
"10",
"11",
"12"
]
Law
9959333
[SEGMENT 1]
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 240399-U
Order filed September 23, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0399
v. ) Circuit No. 23-CF-402
)
KENNETH C. MURRELL, ) Honorable
) Kathy S. Bradshaw-Elliott,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court.
Justices Holdridge and Hettel concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The court did not err in detaining defendant or in considering his motion for relief
days after filing.
¶2 Defendant, Kenneth C. Murrell, appeals from the Kankakee County circuit court’s
detention order arguing that the State failed to meet its burden of showing that conditions of release
would not mitigate any danger he posed and the court erred in considering his motion for relief 35
days after filing. We affirm. ¶3 I. BACKGROUND
¶4 In July 2023, defendant was indicted with criminal sexual assault (Class 1) (720 ILCS
5/11-1.20(a)(1) (West 2022)). Defendant’s bond was initially set at $150,000, but he remained in
custody. In May 2024, defendant filed a motion seeking pretrial release. In response, the State filed
a verified petition to deny pretrial release, alleging defendant was charged with a detainable
offense, and his release posed a real and present threat to the safety of any person, persons, or the
community under section 110-6.1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-
6.1(a) (West 2022)).
¶5 A hearing was held on May 8, 2024. The State provided the factual basis, indicating that
officers were called for reports of a sexual assault on June 16, 2023. When the officers arrived,
they spoke with the victim, Helen G. Helen stated that defendant was her ex-boyfriend. She invited
defendant to her house because defendant had intimate photographs of her on his cell phone that
she wanted him to delete. Defendant entered her bedroom, sat on the bed, and acted like he was
deleting the photographs. Helen did not believe defendant was deleting the photographs so she
took his cell phone. She saw that defendant had not deleted them, and she began to do so.
Defendant then tried to touch her breast and remove her shirt. Helen told him to stop. Defendant
then pushed her down on the bed, held her down, and lifted her skirt up. Defendant penetrated her
vagina with his penis, “ejaculate[d] inside of her,” and then left. Helen went to the hospital and
submitted to a sexual assault kit. The vaginal swab was taken to the state police crime laboratory,
and the DNA was identified as belonging to defendant. Defendant was apprehended later that day
and stated that he did not know who Helen was and did not touch her.
¶6 The State indicated that defendant’s criminal history included two Class X felony
convictions. In 2011, defendant was convicted of manufacturing and delivering a controlled
substance within a school zone and was sentenced to 18 years’ imprisonment. He was also
previously convicted of predatory criminal sexual assault of a child. He had also failed to register
as a sex offender in 2010. Defendant testified that he had a bone protruding through his left
shoulder that he needed to have surgery on. Defense counsel stated that it was defendant’s position
that the sexual encounter was consensual. Counsel stated that defendant would comply with any
conditions placed on him.
¶7 The court found that the State met its burden by clear and convincing evidence. In doing
so it stated, in pertinent part, “I don’t believe there’s any condition or combination that can mitigate
the real and present threat. As I said, he’s already a registered sex offender and has a predatory
criminal sexual assault.” On May 10, 2024, defendant filed a motion for relief. Counsel’s notice
of filing and hearing to the State indicated that the hearing would be held on June 14, 2024. After
the hearing, the court denied the motion.
¶8 II. ANALYSIS
¶9 On appeal, defendant contends that the court erred in (1) granting the petition to detain
where the State failed to meet its burden of showing that conditions of release would not mitigate
any danger he posed and (2) failing to “promptly hear and decide the motion for relief.” We
consider factual findings for the manifest weight of the evidence, but the ultimate decision to grant
or deny the State’s petition to detain is considered for an abuse of discretion. [CITATION],
¶ 9. Under either standard, we consider whether the court’s
determination is arbitrary or unreasonable. Id.
¶ 10 Everyone charged with an offense is eligible for pretrial release, which may only be denied
in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a verified
petition requesting the denial of pretrial release. Id. § 110-6.1. The State then has the burden of
proving by clear and convincing evidence (1) the proof is evident or presumption great that
defendant committed a detainable offense, (2) defendant poses a real and present threat to any
person, persons, or the community or is a flight risk, and (3) no conditions could mitigate this
threat or risk of flight. Id. § 110-6.1(e). “When determining a defendant’s dangerousness and the
conditions of release, the statute includes a nonexhaustive list of factors the court can consider.”
[CITATION], ¶ 12.
¶ 11 We find that the court did not err in finding that there were no conditions to mitigate the
threat defendant posed. The statute provides factors the court can consider when considering the
conditions of release, and the State presented evidence of such factors, including the nature and
circumstances of the offense and the history and characteristics of defendant. See 725 ILCS 5/110-
(West 2022). Defendant had committed a similar prior offense and had a history of failing to
register, thus showing that he may not follow edicts of the court. Taking the evidence before us,
we cannot say the court’s decision to detain defendant was an abuse of discretion.
¶ 12 Defendant further argues that the court did not consider his motion for relief “promptly.”
Illinois Supreme Court Rule 604(h)(2) states, “[t]he trial court shall promptly hear and decide the
motion for relief.” Defendant argues that, since 35 days had elapsed before the court held a hearing
on the motion, the court did not act “promptly.”
¶ 13 We need not determine whether 35 days was prompt under the statute. Our review of the
record shows that defense counsel filed the motion for relief on May 10, 2024. In counsel’s notice
to the State, he indicated that he was setting the case for hearing on June 14, 2024. Under the
doctrine of invited error, “a party may not request the court to proceed in one manner and then
argue on appeal that the requested action was error.” [CITATION], ¶ 24. “The rationale for the doctrine is that it would be unfair to grant a party relief based on error
that she introduced into the proceedings.” Id. Here, defense counsel specifically asked that his
motion be heard on June 14, 2024. Defendant cannot now argue that it was error for the court to
hold the hearing on the date requested.
¶ 14 Nonetheless, we would be remiss if we did not note that the supreme court has not placed
a timeframe on the court’s hearing on a motion for relief. Had the supreme court or the legislature
sought to require the court to hold the hearing within a certain time, they would have done so, as
they did in other portions of the rules and statute pertaining to detention hearings. See [CITATION] (requiring the court consider detention within 24 or 48 hours).
¶ 15 III. CONCLUSION
¶ 16 The judgment of the circuit court of Kankakee County is affirmed.
¶ 17 Affirmed.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 240367-U
Order filed September 9, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
[SEGMENT 2]
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0367
v. ) Circuit No. 24-CF-5
)
MICHAEL A. BOAZ, ) Honorable
) H. Chris Ryan Jr.,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE ALBRECHT delivered the judgment of the court.
Justice Davenport concurred in the judgment.
Presiding Justice McDade dissented.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not abuse its discretion in granting the State’s verified
petition to detain defendant.
¶2 Defendant, Michael A. Boaz, appeals from the circuit court’s decision to grant the State’s
verified petition to deny pretrial release. We affirm.
¶3 I. BACKGROUND ¶4 On January 2, 2024, the State charged defendant with home invasion (720 ILCS 5/19-
6(a)(3) (West 2022)), a Class X felony, and burglary (id. § 19-1(a)), a Class 2 felony. The State
filed a verified petition to deny defendant pretrial release, alleging he was charged with a
detainable offense and his release posed a real and present threat to the safety of any person,
persons, or the community under section 110-6.1(a)(1.5) of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/110-6.1(a)(1.5) (West 2022)).
¶5 The State’s factual basis in support of its petition provided that, on November 2, 2023,
officers were sent to the residence of Nicholas Garcia and spoke with him and his girlfriend,
Lauren Gama. Gama stated that she was asleep in the residence when she heard three male
voices. She text messaged Garcia and learned that he was not home. The power at the residence
then went out. Two men entered the bedroom, put a gun to Gama’s head, and demanded the code
to the safe, which she did not have. The men stayed at the residence for some time “rummaging
through items.” An Xbox gaming system was stolen. Gama then heard gunshots, and the men
fled out the back door. Garcia stated that he arrived home and was confronted by a man pointing
a pistol at him. Garcia indicated that he exchanged gunfire with the men in defense of his
residence. Two different calibers of shell casings were found at the scene. As police were
responding to the scene, an officer saw defendant walking in an alley one block west and three
blocks south of the home invasion. The officer made contact with defendant, who was wearing a
hooded sweatshirt that was damp with sweat, despite the fact that the temperature was below
freezing. Defendant stated that he had just come from his aunt’s house, but his aunt confirmed
that was a lie. Codefendant Fernando Martinez arrived at Morris Hospital with a gunshot wound
to his right arm. He would not provide details about the injury. Martinez’s girlfriend indicated
that he was shot in Mazon, and she picked him up there, but a subsequent analysis of her cell
phone showed that she was not near Mazon that evening. The cell phone also showed that she
was text messaging defendant at the hospital, providing updates. Defendant told her to stop
sending him text messages.
¶6 Defendant, Martinez, and two other men arrived at a residence belonging to Brandie
Smith later on the date of the incident, and video was captured from a neighboring residence. On
the video, Martinez was seen carrying a bag with what appears to be an Xbox inside. Martinez
pulled a handgun out of his waistband and handed it to another man. Martinez can be heard
describing the shooting on the video, stating “I didn’t blow at him first.” Martinez simulated the
shooting and said, “boom, boom, boom, boom.” He further described the length of time they
were in the home, the size of the safe, and standing over Gama requesting the code. Defendant
was identified on the video making statements such as “[Garcia] never walked in” and describing
the size of the safe to Smith. Smith stated that defendant was in possession of the Xbox when he
arrived. Smith gave the Xbox to a relative of the victims, which was turned over to the police.
The Xbox serial number matched the one that was stolen. Garcia had a security system in his
garage that took photographs. The last photograph before the power was cut showed a person in
the garage dressed in the same manner as defendant.
¶7 Defendant was on pretrial release in a pending felony burglary case at the time of the
instant offenses. A pretrial risk assessment indicated that defendant was a level two risk, with
level six being the highest possible risk. Defendant’s criminal history included convictions for
possession of a stolen firearm, forgery, criminal damage to property, and driving on a suspended
license.
¶8 On January 8, 2023, the court held a hearing on the State’s petition, which the court
granted without making the requisite findings required pursuant to the Code. See id. § 110-
6.1(h)(1). Defendant appealed, and this court reversed the court’s judgment and remanded for a
new pretrial detention hearing where the court was directed to make the required statutory
findings. [CITATION]
¶9 On May 3, 2024, the court held a new hearing on the State’s petition to deny defendant
pretrial release. The State provided the factual basis and noted defendant was on pretrial release
at the time, which he violated by committing the instant offense. The State argued defendant was
a threat and no conditions could mitigate the threat. Defense counsel argued there was no
indication that defendant was involved in the crime, was a violent person, or engaged in any
violence personally. Defense counsel asked the court to consider GPS monitoring, house arrest,
and/or reporting to pretrial services. The court granted the State’s petition, finding the State met
its burden by clear and convincing evidence. In doing so, the court noted defendant was involved
in a home invasion with a weapon during the night, which was a threat to a person or
community. The court found none of the available options for pretrial release would mitigate the
threat defendant posed based on the circumstances of this case. The court’s written order
provided that its reasoning was made on the record. On May 14, 2024, defendant filed a motion
for relief from denial of pretrial release. Following a hearing, the court denied the motion.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues the court erred in granting the State’s petition. We consider
factual findings for the manifest weight of the evidence, but the ultimate decision to grant or
deny the State’s petition to detain is considered for an abuse of discretion. [CITATION]
Under either standard, we consider whether the court’s
determination is arbitrary or unreasonable. Id.
¶ 12 Everyone charged with an offense is eligible for pretrial release, which may only be
denied in certain situations. [CITATION] The State must file a
verified petition requesting the denial of pretrial release. [CITATION] The State then has the
burden of proving by clear and convincing evidence (1) the proof is evident or presumption great
that defendant committed a detainable offense, (2) defendant poses a real and present threat to
any person, persons, or the community or is a flight risk, and (3) no conditions could mitigate
this threat or risk of flight. [CITATION] When determining a defendant’s dangerousness
and the conditions of release, the statute includes a nonexhaustive list of factors the court can
consider. [CITATION]
¶ 13 We find the court did not abuse its discretion by detaining defendant. First, the proof was
evident defendant committed the detainable offense where he was stopped by an officer in a
nearby alley close to the location of the crime, he was sweaty and the temperature was below
freezing, the clothing he was wearing at that time matched the clothing in the surveillance
photograph taken from the victims’ home, defendant gave an alibi refuted by his aunt, defendant
received text messages from a codefendant’s girlfriend providing updates while at the hospital
until he told her to stop, and later video surveillance showed defendant with his codefendants
where he discussed specific details of the crime and they had the stolen Xbox in their possession.
Second, it was not against the manifest weight of the evidence for the court to find that he posed
a danger to the community. Defendant committed a home invasion, where the power was cut
from a home, entry was forced into a residence, a victim was held at gunpoint, an item was
stolen, and gunshots were fired at another victim. Third, the State presented evidence that there
were no conditions available to mitigate the threat defendant posed. The statute provides factors
the court can consider when considering the conditions of release, and the State presented
evidence of such factors, including the nature and circumstances of the offense and the history
[SEGMENT 3]
and characteristics of defendant. Id. § 110-5. Defendant committed these offenses while on
pretrial release for a different felony burglary and had a criminal history. The court found that
there were no circumstances where pretrial release would mitigate the risk defendant posed. This
was not against the manifest weight of the evidence. Taking the evidence before us, we cannot
say the court’s decision to detain defendant was an abuse of discretion.
¶ 14 In coming to this conclusion, we reject defendant’s argument that the court’s findings on
remand were no better than at the initial hearing, which this court found to be insufficient. At the
initial hearing, the court made no findings on each of the propositions whereas, on remand, the
court made findings for each proposition. Further, we find no issue with the court’s written order
providing its findings were made of record because “where the transcript and order of the court
provide an equal opportunity to review the validity of the finding on appeal, it is sufficient.”
(Internal quotation marks omitted.) [CITATION]
¶ 15 III. CONCLUSION
¶ 16 The judgment of the circuit court of La Salle County is affirmed.
¶ 17 Affirmed.
¶ 18 PRESIDING JUSTICE McDADE, dissenting:
¶ 19 I dissent from the majority’s decision to affirm the circuit court’s order granting the
State’s verified petition to deny pretrial release.
¶ 20 As the majority recites, section 110-6.1(e) of the Code of Criminal Procedure of 1963
states that “[a]ll defendants shall be presumed eligible for pretrial release. . . .” 725 ILCS 5/110-
.1(e) (West 2022). To rebut this presumption, the State must prove the following three
elements, by clear and convincing evidence: (1) that the proof is evident or the presumption great
that the defendant has committed a detainable offense; (2) that the defendant poses a real and
present threat to the safety of any person, persons, or the community, or a risk of flight; and (3)
that no conditions can mitigate this threat. [CITATION]
¶ 21 I agree with the majority’s findings that the State met its burden of proof with respect to
the first and second of the above elements. Regarding the third element, the majority finds that
the circuit court’s determination that there were no mitigating conditions was not against the
manifest weight of the evidence because defendant had a criminal history and allegedly
committed the offense in this case while on pretrial release for another case involving burglary.
As the majority details, defendant’s criminal history includes convictions for possession of a
stolen firearm, forgery, criminal damage to property, and driving on a suspended license, and a
charge of burglary. None of these convictions or charges inherently involves an act of violence
against another person, and there is nothing in the record sufficiently indicating defendant’s
actual involvement in any such activity. Moreover, as the majority further details, defendant was
assessed as only a level two out of six risk on his pretrial risk assessment. Based on such facts
and evidence, it is questionable whether defendant posed any actual danger and doubtful that no
conditions—including GPS, as he himself urged—could mitigate any alleged dangerousness.
Accordingly, I would find that the State failed to meet its burden of proof regarding the third
element and reverse the circuit court’s order as an abuse of discretion.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 240232-U
Order filed July 15, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal Nos. 3-24-0232,
)
-24-0234
v. ) Circuit Nos. 23-CF-2190,
)
-CF-543
)
JORGE L. MARTINEZ, ) Honorable
) David Carlson and Donald DeWilkins,
Defendant-Appellant. ) Judges, Presiding.
____________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices Hettel and Peterson concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: (1) The State failed to prove that defendant had a high likelihood of willful flight
to avoid prosecution. (2) The court did not err in finding that there were no
conditions to mitigate defendant’s dangerousness
¶2 Defendant, Jorge L. Martinez, appeals his pretrial detention, arguing the State failed to
prove he had a high likelihood of willful flight to avoid prosecution, and the court erred in granting the State’s petition where there were conditions to mitigate his dangerousness. We affirm in part
and reverse in part.
¶3 I. BACKGROUND
¶4 Defendant, Jorge L. Martinez, was indicted on January 4, 2024, in case number 23-CF-
2190 with two counts of aggravated fleeing or attempting to elude a peace officer (Class 3) (625
ILCS 5/11-204.1(a)(4), (b) (West 2022)). A warrant was issued for his arrest. Defendant was then
charged on March 21, 2024, in case number 24-CF-543 with possession of a controlled substance
with intent to deliver (Class X) (720 ILCS 570/401(a)(2)(A) (West 2022)), two counts of unlawful
possession of a controlled substance (Class 1 and Class 4) (id. § 402(a)(2)(A), (c)), three counts of
aggravated fleeing or attempting to elude a peace officer (Class 3) (625 ILCS 5/11-204.1(a)(2),
(a)(3), (b) (West 2022)), and reckless driving (Class 4) (id. § 11-503(a)(1), (b-1)). Defendant was
arrested, and the State filed verified petitions to deny pretrial release in each case under section
110-6.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-6.1 (West 2022)).
¶5 A. 23-CF-2190
¶6 In 23-CF-2190, the State alleged that defendant had a high likelihood of willful flight to
avoid prosecution. The factual basis provided that officers were conducting general surveillance.
They observed a subject enter a black Sonata. They saw it pull out and observed that it had no rear
registration light. They followed the vehicle, which made a right turn without stopping at the stop
sign. They attempted to conduct a stop on the vehicle. The vehicle took off, ignoring two stop
signs and a stop light. Their investigation revealed the car was registered to defendant’s mother.
They reviewed a photograph of defendant and identified him as the subject.
¶7 A hearing was held on March 22, 2024. The State provided the factual basis and argued
that defendant posed a risk of willful flight to avoid prosecution, based on the fact that he was
charged with aggravated fleeing and eluding in two separate cases. Defense counsel stated that
defendant had transportation to work and would abide by court orders. The court detained
defendant, stating,
“By clear and convincing evidence I find that [defendant] poses a threat to
individuals, to the community at large and quite frankly to society as a whole. Some
of the allegations set forth in the petition include not just the idea that he, in this
Court’s opinion, fled from the police and was on pretrial release for fleeing from
the police, but that he also hurt an 11 year old child in the process. And it appears
that—I think it would be important to indicate on the record some of the issues set
forth. And that includes that he traveled at a high rate of speed, swerving in and out
of traffic and went airborne over the railroad crossing at 4:30 p.m. on a Tuesday
afternoon, while allegedly, but based upon the petition, carrying in his vehicle, that
he said wasn’t his, what’s purported to be 27 grams of rock cocaine, 9.8 grams of
field-tested positive cannabis and 44 blue pills that will either come back as
oxycodone, hydrochloride or fentanyl, once a confirmatory test is done.”
¶8 Counsel pointed out that defendant was not on pretrial release in this case when committing
another offense, but just had an outstanding warrant. The court stated that defendant did have a
prior aggravated fleeing and eluding conviction. The State asked whether the court was also
finding that defendant posed a flight risk and the court stated, “Yes.”
¶9 B. 24-CF-543
¶ 10 As to 24-CF-543, the State alleged that defendant committed a felony that involved the
threat or infliction of great bodily harm, permanent disability, or disfigurement and his release
[SEGMENT 4]
posed a real and present threat to the safety of any person or the community. The factual basis
provided that on November 1, 2023, officers observed defendant disregard a red light. Defendant
then traveled at a high rate of speed, swerved in and out of traffic, and “went airborne over a
railroad crossing.” The officers activated their emergency lights and attempted to catch up to the
vehicle. Officers observed that defendant crashed into a fence on the lawn of a cemetery.
Defendant exited the vehicle and began running. He was eventually taken into custody after falling
to the ground.
¶ 11 Officers learned that during the crash, defendant struck an 11-year-old pedestrian.
Defendant also crashed into another vehicle. On the passenger floorboard of the vehicle driven by
defendant was a large plastic bag containing multiple small clear plastic baggies with a white rock-
like substance, which tested positive for cocaine and weighed 27 grams. There were 44 blue pills
stamped “M30”, which were likely oxycodone, and 9.83 grams of cannabis. Defendant stated that
he thought the officers were his enemies, and he did not want to be shot at so he took off. He
denied ownership of the drugs and stated the vehicle was not his. Defendant was not the registered
owner of the vehicle, but the owner was the same individual who owned the vehicle he used to
flee in a prior case. A pretrial risk assessment indicated that defendant was a Level 3 risk, with
Level 6 being the highest level of risk. Defendant’s prior convictions included leaving the scene,
aggravated feeling the police, domestic battery, aggravated unlawful use of a weapon, and
unlawful possession of a handgun.
¶ 12 A hearing was held on March 21, 2024. The State provided the factual basis and
defendant’s criminal history. The State argued the nature and circumstances of the offense, the
identity of the person or persons whose safety he was believed to pose a threat, defendant’s history,
and the fact that defendant was known to possess or have access to weapons. The State said there
were no conditions that could mitigate the threat to the public. Defense counsel asked that
defendant be released, stating that he was working, had young kids that he assisted taking care of,
and would be able to get to court without having to drive.
¶ 13 The court granted the State’s petition, finding that it met its burden by clear and convincing
evidence. The court stated that defendant committed a detainable offense and posed a real and
present threat to the safety of the community. The court said it then had to make a determination
as to whether there were conditions that could mitigate the real and present threat to the safety of
the community. The court stated,
“The Court finds the State has met their burden by clear and convincing evidence
for the following reasons: The nature and circumstance of the offense charged. Let
the record reflect I am not taking into consideration Counts, 3, 4 and 5 which are
the Aggravated Fleeing and Eluding because I did not find [probable cause]. So I
don’t believe at this time that would be appropriate to consider that. But what the
Court does have in front of us is Possession of a Controlled Substance with Intent
to Deliver, a Class-X felony, Unlawful Possession of a Controlled Substance, a
Class-1 felony, which I did find [probable cause].
What the Court also finds troubling in this matter is the fact that there was
an eleven-year-old child that was struck by the defendant’s vehicle. Whether or not
the defendant fled from the police, he left the scene of the accident where the minor
child was struck and taken to the hospital and there was [sic] witnesses to that. The
defendant also in this matter, there were observations of reckless driving, that he
was driving at a high rate of speed, driving in the other land of traffic and weaving
back and forth which, clearly, is a danger to the community in regards to that, for
the facts in this matter.”
¶ 14 The court stated that it was also taking into consideration defendant’s history and
characteristics, the age and physical condition of the minor child, and the fact that defendant was
known to possess or have access to weapons. The court stated,
“Taking all those things into account, the Court does not believe that there’s a
condition or combination of conditions that can protect not only the minor child but
the community, in general, in this matter. Based on defendant’s—I would almost
call a horrific prior driving record where the community has been put in danger on
at least three prior occasions, notwithstanding this case that I did not consider.”
One written order was filed for both cases, on which the court checked boxes.
¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant argues that the State failed to prove (1) defendant posed a high
likelihood of willful flight to avoid prosecution in 23-CF-2190 and (2) that no conditions could
mitigate any threat he posed in 24-CF-543. We consider factual findings for the manifest weight
of the evidence, but the ultimate decision to grant or deny the State’s petition to detain is considered
for an abuse of discretion. [CITATION], ¶ 8. Under either
standard, we consider whether the court’s determination is arbitrary or unreasonable. Id.
¶ 17 Everyone charged with an offense is eligible for pretrial release, which may only be denied
in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a verified
petition requesting the denial of pretrial release. Id. § 110-6.1. The State then has the burden of
proving by clear and convincing evidence (1) the proof is evident or presumption great that
defendant committed a detainable offense, (2) defendant poses a real and present threat to any
person, persons, or the community or is a flight risk, and (3) no conditions could mitigate this
threat or risk of flight. Id. § 110-6.1(a), (e). When determining a defendant’s dangerousness and
the conditions of release, the statute includes a nonexhaustive list of factors the court can consider.
Id. §§ 110-6.1(g), 110-5.
¶ 18 A. 23-CF-2190
¶ 19 We agree with defendant that the State failed to prove that he posed a high likelihood of
willful flight to avoid prosecution. “Willful flight” is defined as “intentional conduct with a
purpose to thwart the judicial process to avoid prosecution.” Id. § 110-1(f).
“Isolated instances of nonappearance in court alone are not evidence of the risk of
willful flight. Reoccurrence and patterns of intentional conduct to evade
prosecution, along with any affirmative steps to communicate or remedy any such
missed court date, may be considered as factors in assessing future intent to evade
prosecution.” Id.
The State solely provided defendant’s charges and prior conviction for aggravated fleeing and
eluding as evidence of his likelihood of flight. This was not enough. See [CITATION]. While defendant had a fairly extensive criminal history, there was no
indication that he ever failed to appear in court. See id. ¶ 23. Therefore, we find that the court erred
in detaining defendant on 23-CF-2190.
¶ 20 B. 24-CF-543
¶ 21 We cannot say that it was against the manifest weight of the evidence for the court to find
that there were no conditions to mitigate defendant’s dangerousness in 24-CF-543. The record
available as to conditions is sufficient for our review. [CITATION], ¶ 11. The State presented evidence as to the statutory factors, including the nature and
circumstances of the offense and history and characteristics of defendant (see id. § 110-5).
Defendant had a significant criminal history, including violent offenses. He committed both of
these cases with a few months. The court noted that defendant had a “horrific” driving record and
continued to put the community in danger. In reaching its decision, the court considered the factors
set forth in the statute. See id. Taking the evidence before us, we cannot say the court’s decision
to detain the defendant was an abuse of discretion.
¶ 22 III. CONCLUSION
¶ 23 The judgment of the circuit court of Will County is affirmed in part and reversed in part.
¶ 24 Affirmed in part. Reversed in part.
2024 IL App (3d) 240180
Opinion filed July 2, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0180
v. ) Circuit No. 23-CF-470
)
JAMIYAH L. JOHNSON, ) Honorable
) Amy Bertani-Tomczak,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
[SEGMENT 5]
JUSTICE BRENNAN delivered the judgment of the court, with opinion.
Justice Davenport concurred in the judgment and opinion.
Presiding Justice McDade dissented, with opinion.
OPINION
¶1 Defendant, Jamiyah L. Johnson, appeals from the circuit court’s granting of the State’s
verified petition to deny pretrial release. For the reasons set forth below, we affirm.
¶2 I. BACKGROUND
¶3 Defendant, Jamiyah L. Johnson, was indicted on March 30, 2023, with aggravated
vehicular hijacking (Class X) (720 ILCS 5/18-4(a)(4), (b) (West 2022)), being an armed habitual
criminal (Class X) (id. § 24-1.7(a), (b)), aggravated unlawful possession of a stolen motor vehicle
(Class 1) (625 ILCS 5/4-103.2(a)(3), (c) (West 2022)), vehicular hijacking (Class 1) (720 ILCS 5/18-3(a), (b) (West 2022)), unlawful possession of a weapon by a felon (Class 2) (id. § 24-1.1(a),
(e)), and aggravated unlawful restraint (Class 3) (id. § 10-3.1(a), (b)). Defendant’s bail was set at
$2.5 million, but he remained in custody. On March 1, 2024, defendant filed a motion seeking
pretrial release. In response, the State filed a verified petition to deny pretrial release, alleging
defendant was charged with a nonprobationable felony and his release posed a real and present
threat to the safety of any person, persons, or the community under section 110-6.1(a)(1) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.1(a)(1) (West 2022)). The petition
also alleged that defendant had a high likelihood of willful flight to avoid prosecution.
¶4 The factual basis provided that on March 10, 2023, at 7:26 a.m. officers were dispatched
for the report of a man attempting to stop cars on the roadway. The subject had approached Brian
Lewis and John Reynolds in their vehicles. When the officers arrived, Kaylee Thompson told them
that she stopped at a stop sign in her Dodge Charger when a man entered the passenger side of her
car, held a handgun to her head, and told Thompson to drive. Thompson drove across the road and
the man told her to “get the f*** out” of the vehicle. Thompson exited the vehicle, and the man
entered the driver’s side and fled in the Charger. Three witnesses also gave statements. The car
was equipped with a LoJack global positioning system (GPS), and officers were able to locate the
vehicle in Chicago about 35 yards from the residence of defendant’s girlfriend. The vehicle was
swabbed and tested for deoxyribonucleic acid (DNA). DNA located on the steering wheel and the
gear shift matched defendant.
¶5 Later that day officers recovered an abandoned vehicle approximately 350 yards from
where the hijacking had occurred. The vehicle belonged to Takyra Henderson. An officer
conducted a license plate reader canvass of the vehicle over the previous 48 hours and determined
the vehicle was in Bloomington the day before. Henderson and defendant had been arrested in
Bloomington at 1 a.m. on March 10. Defendant was released at approximately 3:36 a.m. The
booking photograph and body camera footage of defendant’s arrest in Bloomington matched the
description of the perpetrator. Thompson was unable to identify defendant in a photo lineup, but
Reynolds and Lewis immediately picked defendant out as the person who had approached them.
Henderson called the Braidwood police and indicated that she believed defendant stole her vehicle.
¶6 Defendant was arrested and interviewed. When asked how he got to Chicago from
Bloomington, defendant said his uncle picked him up, and they went to Danville. Defendant was
in possession of a cell phone and gave officers permission to search it. The cell phone had shared
its location in a text message on March 10 at 5:35 a.m., and the location showed the place where
Henderson’s car was subsequently found. Officers interviewed defendant’s girlfriend who stated
that Henderson was her cousin, and defendant drove from Bloomington in the car. She stated that
the car broke down on the side of the road and that she got mad at defendant and walked away.
¶7 The petition indicated that defendant was on parole for possession of a stolen motor vehicle
and aggravated unlawful use of a weapon. He had two other felony convictions for aggravated
unlawful use of a weapon.
¶8 A detention hearing was held on March 7, 2024. Defense counsel stated that defendant
could reside with his girlfriend in Lisle if released. Defendant had children, one of which had been
in an accident. Counsel asked that defendant be placed on electronic monitoring. The State
indicated that defendant was on parole at the time of the offense and had multiple felony
convictions. The State said when defendant’s DNA was run, it matched another vehicular hijacking
in 2018. The State further presented the factual basis and indicated that defendant was a flight risk
and a danger to the community.
¶9 The court granted the petition, finding the State met its burden by clear and convincing
evidence. In doing so the court stated, inter alia, that defendant was a flight risk and a danger to
the community and no other measures could be taken to assure the safety of the community or the
fact that he may flee. The court’s written order indicated that its decision was based on the nature
and circumstances of the offenses, defendant’s prior violent criminal history, his access to
weapons, the fact that he was on parole, and that defendant’s DNA was recovered from the car.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues that the court erred in granting the State’s petition to detain.
He solely argues that he could be placed on electronic monitoring. We consider whether factual
findings are against the manifest weight of the evidence, but the ultimate decision to grant or deny
the State’s petition to detain is reviewed for an abuse of discretion. [CITATION], ¶ 13. Under either standard, we consider whether the court’s determination is
arbitrary or unreasonable. Id.; see [CITATION], ¶ 19.
¶ 12 Everyone charged with an offense is eligible for pretrial release, which may only be denied
in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a verified
petition requesting the denial of pretrial release. Id. § 110-6.1. Section 110-6.1(d)(1) prescribes the
contents of the State’s petition, requiring that
“The petition shall be verified by the State and shall state the grounds upon which it
contends the defendant should be denied pretrial release, including the real and present
threat to the safety of any person or persons or the community, based on the specific
articulable facts or flight risk, as appropriate.” Id. § 110-6.1(d)(1).
Conspicuously absent from the required content of the petition is any requirement that the State
specifically address a nonexhaustive list of conditions that might arguably be imposed to mitigate
a defendant’s real and present threat.
¶ 13 The State then has the burden of proving by clear and convincing evidence (1) the proof is
evident or presumption great that defendant committed a detainable offense, (2) defendant poses
a real and present threat to any person, persons, or the community or is a flight risk, and (3) no
conditions could mitigate this threat or risk of flight. [CITATION]. Sections 110-5(a)
and 110-6.1(g) set forth factors for the court to consider when determining dangerousness and any
conditions. [CITATION]. Defendant does not challenge that the State satisfied its
burden as to the commission of a detainable offense or dangerousness. Rather, he argues that it did
not prove by clear and convincing evidence that no conditions could mitigate his threat to the
community.
¶ 14 Where a defendant’s danger is proven by clear and convincing evidence, the Code does, of
course, likewise require the State to prove by clear and convincing evidence that no condition or
combination of conditions can mitigate the threat. [CITATION]. This burden, however, can
be satisfied in a variety of ways: from the presentation of evidence to be sure, but also by common
sense consideration of the factors listed in section 110-5(a)(1)-(7), including the nature of the
offense, the strength of the case, the defendant’s mental condition, the defendant’s criminal history,
the defendant’s compliance with mandatory supervised release (MSR) or probation, etc. [CITATION].
The State’s burden does not obligate it to specifically address the efficacy of every
conceivable condition or combination of conditions. Rather, it is the trial court that must ultimately
consider all it has heard and, if ordering detention, make written findings explaining “why less
restrictive conditions would not avoid a real and present threat to the safety of any person or
[SEGMENT 6]
persons or the community.” Id. § 110-6.1(h)(1).
¶ 15 The record shows that the State presented information regarding the nature and
circumstances of the offenses, the history and characteristics of defendant, the violent offenses that
he had been convicted of, and the fact that he was on parole at the time of the offense. See id.
§ 110-5(a). As was observed in [CITATION],
“Section 110-5(a) refers to a defendant’s history and whether he or she was on parole,
probation, or other release at the time of the current offense, and section 110-2(a) notes
that pretrial release is generally presumed, but only on certain conditions, including that
‘the defendant *** complies with all terms of pretrial release.’ ” (Emphasis in original.)
Thus, the trial court is tasked with considering not just whether conditions short of detention exist,
but also whether a defendant is likely to comply with them.
¶ 16 Here, the proffered evidence that defendant failed to comply with conditions imposed while
on MSR by committing the exact same dangerous offenses satisfied the State’s burden of
establishing that no conditions less than detention could mitigate the risk to the community.
Defendant, on MSR for aggravated unlawful use of weapon and possession of a stolen vehicle,
forced himself into the victim’s car, held a gun to her head, forced her to drive a short distance,
and then ordered her out of the car which he then stole. Clearly, it was of no consequence to
defendant that he was on MSR at the time of the instant offenses, and it would be entirely
unreasonable to conclude he would comply with electronic home monitoring on pretrial release.
Simply put, the evidence supporting the State’s petition satisfied its burden. See [CITATION],
¶ 33 (where the defendant was on parole from a gun case and failed to
comply with the conditions placed upon him, this “demonstrated history of refusing to abide by
conditions of release” satisfied the State’s burden of showing no less restrictive conditions were
appropriate, and the trial court did not err in so finding); [CITATION], ¶¶ 31-32 (State satisfied burden of showing that no less restrictive conditions were
appropriate where the defendant’s history, including a prior conviction of escape from law
enforcement, demonstrated an unwillingness to follow rules and the unlikelihood that he would
follow the court’s order, rendering futile a release with conditions).
¶ 17 We conclude it was not against the manifest weight of the evidence for the court to find
that there were no conditions to mitigate the threat defendant posed. Therefore, the court did not
abuse its discretion in granting the State’s petition.
¶ 18 III. CONCLUSION
¶ 19 The judgment of the circuit court of Will County is affirmed.
¶ 20 Affirmed.
¶ 21 PRESIDING JUSTICE McDADE, dissenting:
¶ 22 The majority has affirmed the circuit court’s decision to grant the State’s petition to deny
Johnson pretrial release. I would hold that the State failed to meet its burden of proof under section
-6.1(e)(3) of the Code and that Johnson would necessarily have to be admitted to pretrial
release despite the nature of his alleged crimes. Thus, I dissent.
¶ 23 When reviewing a circuit court’s decision on pretrial release, we apply manifest-weight-
of-the-evidence review to the court’s factual findings and abuse-of-discretion review to the court’s
ultimate decision to grant or deny pretrial release. [CITATION], ¶ 13.
¶ 24 “All persons charged with an offense shall be eligible for pretrial release before
conviction.” 725 ILCS 5/110-2(a) (West 2022). The statutory scheme applicable to pretrial release
creates a presumption that a defendant is entitled to release. [CITATION] That presumption can only be
rebutted, and pretrial release denied, if the State files a verified petition opposing release and
satisfies a three-part burden of proof at a hearing in the circuit court on the matter. [CITATION] § 110-6.1(a).
That burden of proof is set forth in section 110-6.1(e) as follows:
“(e) Eligibility: All defendants shall be presumed eligible for pretrial
release, and the State shall bear the burden of proving by clear and convincing
evidence that:
(1) the proof is evident or the presumption great that the defendant
has committed an offense listed in subsection (a), and
(2) for offenses listed in paragraphs (1) through (7) of subsection
(a), the defendant poses a real and present threat to the safety of any
person or persons or the community, based on the specific articulable facts
of the case, by conduct which may include, but is not limited to, a forcible
felony, the obstruction of justice, intimidation, injury, or abuse as defined
by paragraph (1) of Section 103 of the Illinois Domestic Violence Act of
, and
(3) no condition or combination of conditions set forth in
subsection (b) of Section 110-10 of this Article can mitigate (i) the real
and present threat to the safety of any person or persons or the community,
based on the specific articulable facts of the case, for offenses listed in
paragraphs (1) through (7) of subsection (a), or (ii) the defendant’s willful
flight for offenses listed in paragraph (8) of subsection (a), and
(4) for offenses under subsection (b) of Section 407 of the Illinois
Controlled Substances Act that are subject to paragraph (1) of subsection
(a), no condition or combination of conditions set forth in subsection (b)
of Section 110-10 of this Article can mitigate the real and present threat to
the safety of any person or persons or the community, based on the
specific articulable facts of the case, and the defendant poses a serious risk
to not appear in court as required.” Id. § 110-6.1(e).
Not every subsection of section 110-6.1(e) may be applicable in any given case. For example,
depending on the offense(s) charged, either subsection (e)(3) or (e)(4) may apply; in both cases,
however, the State is still required to prove the “conditions” element that appears in both
subsections.
¶ 25 Despite the varying applicability of section 110-6.1(e)’s subsections, the statute is
abundantly clear that the burden of proving that a defendant should be detained, rather than
released, lies with the State. “Burden of proof” contains two concepts: first, a burden of “going
forward with the evidence,” i.e., a burden of production, and second, a burden of persuasion.
Black’s Law Dictionary 196 (6th ed. 1990). The burden of production is “[t]he obligation of a
party to introduce evidence sufficient to avoid a ruling against him on the issue.” Id. The burden
of persuasion is “[t]he onus on the party with the burden of proof to convince the trier of fact of
all elements of his case.” Id. In pretrial release cases, then, when the State opposes release and
seeks detention, it would seem elementary that for the State to meet its legislatively mandated
burden under section 110-6.1(e)(3) or (4), it would address at a very minimum the conditions
explicitly listed in section 110-10(b) because that section is explicitly referenced by section 110-
.1(e)(3) and (4). 725 ILCS 5/110-6.1(e)(3), (4), 110-10(b) (West 2022); see [CITATION]
IL App (1st) 231753, ¶¶ 15-19. Of course, not every conceivable condition of pretrial release needs
to be addressed by the State to meet its burden under section 110-6.1(e)(3). But the language of
that section shows that the legislature contemplated what conditions would be applicable and
mandated that the State produce evidence and present argument on them.
¶ 26 If the State fails to meet its burden of proof—namely, its burdens of production and
persuasion—under section 110-6.1(e), the presumption that the defendant is eligible for release
stands unrebutted, and the defendant cannot be detained. See 725 ILCS 5/110-6.1(e) (West 2022).
If, on the other hand, the State satisfies its burden, the presumption vanishes. However, detention
in that situation is not automatic, as the ultimate decision of whether a defendant will be released
or detained has now passed squarely into the discretionary power of the circuit court. See, e.g.,
[CITATION], ¶ 13 (holding that “[w]e review for an abuse of discretion the trial court’s ultimate determination regarding pretrial release”).
¶ 27 I disagree with the majority’s conclusion in this case that the State satisfied its burden of
proof on the “conditions” element from section 110-6.1(e)(3). I note initially that the State never
acknowledged the existence of the “conditions” element in its verified petition. 1 Then, at the
[SEGMENT 7]
I do not mention the State’s omission of the “conditions” element from the petition except as
confirmation that the State has presented neither oral nor written evidence on this element of its burden of
proof. In addition, it shows a pattern of the State ignoring that element altogether. However, I am
compelled to address the majority’s comment on what the statute requires the State to include in its
verified petition. The majority notes, “[c]onspicuously absent from the required content of the petition is
any requirement that the State specifically address a nonexhaustive list of conditions that might arguably
be imposed to mitigate a defendant’s real and present threat.” Supra ¶ 12. It is true that the language of
section 110-6.1(d)(1) does not explicitly require any such list. 725 ILCS 5/110-6.1(d)(1) (West 2022). To
the extent the majority might be suggesting that section 110-6.1(d)(1) forecloses inclusion of the
“conditions” element in the verified petition, such is clearly not the case. The statute provides that the
State “shall state the grounds upon which it contends the defendant should be denied pretrial release,
including the real and present threat to the safety of any person or persons or the community, based on the
specific articulable facts or flight risk, as appropriate.” (Emphasis added.) Id. The material following
“including” is obviously a noninclusive list. Additionally, because the State’s burden of proof includes
proving the “conditions” element from section 110-6.1(e)(3) (id. § 110-6.1(e)(3)), it is entirely reasonable
to assume that the State’s petition would contain something about the “conditions” element, as that
hearing, the only comment the State made that could reasonably be construed as relating to the
“conditions” element was as follows:
¶ 28 “Before I even go into the facts of this case, I would like to go into additional grounds why
the defendant should be detained, which is that he is currently on parole through the Illinois
Department of Corrections for possession of a stolen motor vehicle out of Cook County and
aggravated unlawful use of a weapon in Cook County.”
¶ 29 Rather than subjecting the State’s single sentence to meaningful scrutiny, the majority
engages in speculation. First, the majority speculates that Johnson committed the “exact same
dangerous offenses” for which he was on parole. [CITATION]. However, the State did not present
certified copies of Johnson’s convictions into evidence at the hearing or discuss what conditions
were applicable to his MSR. Further, the State did not discuss the circumstances of Johnson’s
convictions. In that regard, I note that the Illinois Department of Corrections’ website states that
Johnson’s convictions were for “AID/ABET/POSS/SELL STOLEN VEH” and “AGG UNLWFL
USE WEAPON/VEH/2ND.” The circumstances of those crimes and Johnson’s role in them is
indiscernible from the Illinois Department of Corrections’ website and from the single-sentence
statement the State made at Johnson’s pretrial detention hearing. That information could have been
relevant to whether any conditions could apply to Johnson’s pretrial release that would mitigate
any risk he posed. There was no evidence presented in this case for the majority to properly
conclude that Johnson engaged in the “exact same dangerous offenses.” [CITATION].
¶ 30 Second, the majority speculates that “it would be entirely unreasonable to conclude he
would comply with electronic home monitoring on pretrial release.” [CITATION]. There was no
element contains part of “the grounds upon which [the State] contends the defendant should be denied
pretrial release” (id. § 110-6.1(d)(1)).
evidence that Johnson was on electronic home monitoring at the time he allegedly committed the
current offenses. Requiring a commonsense level of evidence—which, at a very minimum, the
statutory scheme contemplates—is not unreasonable. In fact, requiring that type of evidence before
arriving at a conclusion like the majority’s is necessitated by the standard of clear and convincing
evidence.
¶ 31 In sum, while it did address Johnson’s criminal history and the facts that led to the charges
in this case, the State never actually addressed whether any condition or combination of conditions
could mitigate the safety or willful-flight risks allegedly posed by Johnson. Because the State failed
to meet its burden under section 110-6.1(e)(3), the statutory presumption in favor of pretrial release
was not rebutted and therefore must prevail.
¶ 32 I write further to note that numerous pretrial release cases issued by this court claim the
State can meet its burden of proof under section 110-6.1(e) merely by producing evidence related
to the factors the circuit court is statutorily mandated to consider under section 110-5 when
considering what conditions should attach to a defendant’s pretrial release. See, e.g., [CITATION]. The primary problem with these cases is that they have resulted in this court
approving the fundamentally flawed approach the State has taken in pretrial-release proceedings.
¶ 33 Generally, as it did in this case, the State uses a preprinted form to file its verified petition
to deny pretrial release. The form lists the crimes from section 110-6.1(a), which are the crimes
for which pretrial release can be denied, and contains either boxes or lines that the State checks
when applicable. The checked boxes and lines clearly correspond to the first element contained in
section 110-6.1(e)(1). 725 ILCS 5/110-6.1(e)(1) (West 2022). Next, the form also contains space
for the factual basis for the petition, which goes to the second element contained in section 110-
.1(e)(2). Id. § 110-6.1(e)(2). However, and again as is the situation in this case, the form generally
does not address the third element contained in section 110-6.1(e)(3) or (4). See supra ¶ 27 n.1.
¶ 34 Next, at the hearing on the petition, the State tends to do little more than recite the factual
basis for the petition. Sometimes, the State addresses matters such as the defendant’s criminal
history or other matters it believes are relevant. However, there is rarely, if ever, an attempt by the
State to present specific evidence or argument on whether any condition or conditions exist that
could mitigate the safety or willful-flight risks a defendant allegedly poses. Certainly, there was
not in this case. This is despite the explicit burden the legislature has placed on the State in section
-6.1(e)(3) and (4) to prove the “conditions” element by clear and convincing evidence. 725
ILCS 5/110-6.1(e)(3), (4) (West 2022).
¶ 35 I reiterate that section 110-6.1(e)(3) and (4) explicitly refers to the partial list of conditions
that appears in section 110-10(b). Id. The legislature has therefore specifically included a roadmap
for the State, yet the State generally does not make any attempt at satisfying its burden on the
“conditions” element. When the State does actually mention this element during pretrial release
hearings, it generally just makes a conclusory statement that no condition or combination of
conditions could mitigate the safety and/or willful-flight risks a defendant allegedly poses, or it
responds only to a specific suggestion made by the defendant’s counsel. Most times, the circuit
court simply enters a general finding agreeing with the State. Then, on appeal, this court tends to
affirm that finding without subjecting it to meaningful scrutiny.
¶ 36 I simply cannot agree with decisions excusing the State’s obligation by claiming that it can
sufficiently meet its burden under section 110-6.1(e)(3) or (4) by presenting evidence potentially
relevant to the factors the circuit court is required to consider when imposing conditions on pretrial
release under section 110-5. Section 110-5 is not referenced in section 110-6.1(e)(3) or (4); section
-10(b) is. Id. The conditions included in section 110-5 are addressed to the circuit court’s
discretion—a factor which does not come into play until the State has successfully met its burden
and rebutted the presumption of eligibility for release. There is no reason to give the State a free
pass on its burden on the “conditions” element, especially because the statutory scheme explicitly
presumes that defendants are eligible for pretrial release.
¶ 37 In this case, the majority presents an overly generalized summary of what section 110-
.1(e) requires and then immediately recasts the statute by referring to section 110-5 ([CITATION] ¶ 13),
as if it were self-evident that section 110-5 relates to the State’s burden under section 110-6.1(e).
Then, when it analyzes whether the circuit court erred in granting the State’s petition to detain, the
majority explicitly uses section 110-5 as support for its decision. [CITATION] ¶ 15. I do not believe the
[SEGMENT 8]
majority’s use of section 110-5 in this manner is compliant with a statute we are duty-bound to
apply. What we ought to be doing is addressing the fact that the State has been ignoring the
“conditions” element generally—and section 110-10(b) specifically—and analyzing what impact
that disregard has for the defendants that come before us.
¶ 38 For the foregoing reasons, I dissent.
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Will County, No. 23-CF-470; the
Hon. Amy Bertani-Tomczak, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Samuel B. Steinberg,
for of State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
2024 IL App (3d) 240046
Opinion filed April 29, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0046
v. ) Circuit No. 21-CF-1219
)
CHARLES D. YOUNG, JR., ) Honorable
) John Connor,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE ALBRECHT delivered the judgment of the court, with opinion.
Justice Holdridge concurred in the judgment and opinion.
Presiding Justice McDade dissented, with opinion.
OPINION
¶1 Defendant, Charles D. Young, Jr., appeals from the Will County circuit court’s order
denying him pretrial release. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 Defendant was indicted on September 16, 2021, with aggravated battery (Class X) (720
ILCS 5/12-3.05(e)(1), (h) (West 2020)), three counts of armed robbery (Class X) (id. § 18-
2(a)(4), (a)(2), (b)), and unlawful possession of a weapon by a felon (Class 3) (id. § 24-1.1(a),
(e)). Defendant’s bail was set at $500,000, but he remained in custody. On January 16, 2024, defendant filed a motion seeking pretrial release. In response, the State filed a verified petition to
deny pretrial release, alleging defendant was charged with a forcible felony, and his release
posed a real and present threat to the safety of any person, persons, or the community under
section 110-6.1(a)(1.5) of the Code of Criminal Procedure of 1963 ([CITATION]).
¶4 The factual basis provided that on August 19, 2021, Cedric Battle and defendant
exchanged text messages setting up a transaction wherein Battle and Darnell Prince would
purchase contraband from defendant. Battle and Prince met up with defendant and co-defendant
Bryan Dantzler, who arrived together in a Ford Explorer. Battle and Prince entered the rear of the
Explorer. Dantzler was identified as the driver of the Explorer, and defendant was identified as
the passenger. After Battle and Prince paid for the contraband, Dantzler and defendant displayed
handguns and demanded the victims’ property. Battle and Prince complied. Defendant struck
Battle and Prince with his firearm, and they were ordered to exit the vehicle. As Prince exited the
vehicle, defendant shot him, striking him in the abdomen. Dantzler and defendant fled the scene.
Prince had severe internal damage, was in critical condition, and required surgery. Officers
obtained Dantzler and defendant’s cellphone records, which revealed them traveling to and from
the location of the incident. In the hours following the incident, defendant sent text messages
about the crime, which included a video from a local news station about the shooting. Defendant
made a statement in a text before the offense that he was going to commit a robbery and shortly
thereafter to the same person that he got $3,000 and two guns. Defendant also made statements
in text messages to various individuals wherein he admitted he “popped” someone and got
cannabis, guns, and money and “bragging that the victims couldn’t say anything ‘or they tell on
they self,’ and that because he took the victims firearms, that probably hurt ‘worse than the shot.’
” When defendant was arrested, officers obtained a search warrant. Pursuant to the warrant,
multiple firearms were recovered. While in custody, defendant was recorded asking if the police
“got all the pipes,” referring to the confiscated firearms.
¶5 The petition further indicated that defendant had a conviction for attempted armed
robbery. When he was on mandatory supervised release (MSR) he committed another offense,
and his MSR was revoked. He was arrested for aggravated assault to a peace officer.
Additionally, he was affiliated with the Black Gangster Disciples street gang.
¶6 A hearing was held on January 18, 2024. The State provided the factual basis as set forth
above. The State stated, “I think that combination of factors shows that he does not appreciate
the seriousness of the offenses he’s charged with and will likely re-offend.” Defendant argued
that electronic monitoring would be a sufficient condition. The court granted the petition, finding
that the State met its burden by clear and convincing evidence. In doing so, the court went
through the statutory factors it was considering. The court said that there were no conditions
“including GPS” that would mitigate the threat defendant posed.
¶7 II. ANALYSIS
¶8 On appeal, defendant argues that the court abused its discretion in granting the State’s
petition as the State failed to prove that no conditions could mitigate any threat he posed. We
consider factual findings for the manifest weight of the evidence, but the ultimate decision to
grant or deny the State’s petition to detain is considered for an abuse of discretion. [CITATION], ¶ 13. Under either standard, we consider whether the court’s
determination is arbitrary or unreasonable. Id.; see also [CITATION], ¶ 19.
¶9 Everyone charged with an offense is eligible for pretrial release, which may only be
denied in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must first file
a verified petition requesting the denial of pretrial release. Id. § 110-6.1. The State then has the
burden of proving by clear and convincing evidence (1) the proof is evident or presumption great
that defendant committed a detainable offense, (2) defendant poses a real and present threat to
any person, persons, or the community or is a flight risk, and (3) no conditions could mitigate
this threat or risk of flight. Id. § 110-6.1(a), (e). Sections 110-5(a) and 110-6.1(g) set forth factors
for the court to consider when determining dangerousness and any conditions. Id. §§ 110-5(a),
-6.1(g).
¶ 10 Here, we cannot say that the court abused its discretion in granting the State’s petition.
The State presented evidence and argument regarding the factors in section 110-5(a), including
the nature and circumstance of the offense. Id. In the petition, the State indicated that defendant
had attempted to commit this offense before and that he had violated his MSR by committing
another offense. The court further found that no conditions, including GPS monitoring, would
mitigate the threat defendant posed. Based on the evidence and argument presented, it was not
against the manifest weight of the evidence for the court to determine that the defendant was thus
unlikely to comply with any conditions of pretrial release. Therefore, the court did not abuse its
discretion in granting the State’s petition.
¶ 11 III. CONCLUSION
¶ 12 The judgment of the circuit court of Will County is affirmed.
¶ 13 Affirmed.
¶ 14 PRESIDING JUSTICE McDADE, dissenting:
¶ 15 The majority has affirmed the circuit court’s decision to grant the State’s petition to deny
Young pretrial release. I would hold that the State failed to meet its burden of proof under section
-6.1(e)(3) and that Young would necessarily have to be admitted to pretrial release despite the
nature of his alleged crimes. Thus, I dissent.
¶ 16 In full, section 110-6.1(e) states:
“(e) Eligibility: All defendants shall be presumed eligible for pretrial
release, and the State shall bear the burden of proving by clear and convincing
evidence that:
(1) the proof is evident or the presumption great that the defendant has
committed an offense listed in subsection (a), and
[SEGMENT 9]
(2) for offenses listed in paragraphs (1) through (7) of subsection (a), the
defendant poses a real and present threat to the safety of any person or persons or
the community, based on the specific articulable facts of the case, by conduct
which may include, but is not limited to, a forcible felony, the obstruction of
justice, intimidation, injury, or abuse as defined by paragraph (1) of Section 103
of the Illinois Domestic Violence Act of 1986, and
(3) no condition or combination of conditions set forth in subsection (b) of
Section 110-10 of this Article can mitigate (i) the real and present threat to the
safety of any person or persons or the community, based on the specific
articulable facts of the case, for offenses listed in paragraphs (1) through (7) of
subsection (a), or (ii) the defendant's willful flight for offenses listed in paragraph
(8) of subsection (a), and
```plaintext
(4) for offenses under subsection (b) of Section 407 of the Illinois
Controlled Substances Act that are subject to paragraph (1) of subsection (a), no
condition or combination of conditions set forth in subsection (b) of Section 110-
of this Article can mitigate the real and present threat to the safety of any
person or persons or the community, based on the specific articulable facts of the
case, and the defendant poses a serious risk to not appear in court as required.”
ILCS 5/110-6.1(e) (West 2022).
While not every subsection may be applicable in any given case, the statute is abundantly clear
that the burden of proving that a defendant should be detained, rather than released, lies with the
State.
¶ 17 “Burden of proof” contains two concepts: a burden of production and a burden of
persuasion. Black’s Law Dictionary 196 (6th ed. 1990). The burden of production is “[t]he
obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.”
Id. The burden of persuasion is “[t]he onus on the party with the burden of proof to convince the
trier of fact of all elements of his case.” Id. In pretrial-release cases, then, when the State opposes
release and seeks detention, it would seem elementary that for the State to meet its legislatively
mandated burden under section 110-6.1(e)(3), it would at a minimum produce evidence and
present argument related to the conditions listed in section 110-10(b) because that section is
explicitly referenced by section 110-6.1(e)(3). 725 ILCS 5/110-6.1(e)(3) (West 2022); see [CITATION]. Of course, not every conceivable condition of
pretrial release would need to be addressed by the State to meet its burden under section 110-
.1(e)(3). But the language of that section shows that the legislature contemplated what conditions
``` would arguably be applicable and mandated that the State produce evidence and present argument
on them.
¶ 18 If the State fails to meet its burden of proof—namely, its burdens of production and
persuasion—under section 110-6.1(e), the presumption that the defendant is eligible for release
stands and the defendant cannot be detained. See id. § 110-6.1(e). If, on the other hand, the State
satisfies its burden, the presumption vanishes. However, detention in that situation is not
automatic, as the ultimate decision of whether a defendant will be released or detained has now
passed squarely into the discretionary power of the circuit court. See, e.g., [CITATION].
¶ 19 In this case, the State’s petition to deny pretrial release was based on sections 110-
.1(a)(1.5) and (6). Accordingly, at the hearing on the petition, the State was required to prove by
clear and convincing evidence, in relevant part, that (1) “the proof is evident or the presumption
great that the defendant has committed an offense listed in subsection (a)” (id. § 110-6.1(e)(1));
(2) “the defendant poses a real and present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the case” (id. § 110-6.1(e)(2)); and (3) “no
condition or combination of conditions set forth in subsection (b) of Section 110-10 of this Article
can mitigate (i) the real and present threat to the safety of any person or persons or the community,
based on the specific articulable facts of the case” (id. § 110-6.1(e)(3)).
¶ 20 At the hearing in this case, the State presented evidence of the circumstances surrounding
the incident leading to the charges that were filed against Young. At no point in the State’s
presentation did it address the third element it was required to prove pursuant to section 110-
.1(e)(3). The State never discussed whether any of the conditions set forth in section 110-10(b)
could mitigate the safety threat Young posed and in fact never even uttered the word “condition.”
Thus, it cannot reasonably be concluded that the State met its burden of proof under section 110-
.1(e)(3) in this case, and the presumption compels his release. Id. § 110-6.1(e).
¶ 21 By affirming the circuit court’s decision to deny pretrial release in this case, the majority
has excused the State from having to meet its legislatively mandated burden of proving by clear
and convincing evidence that “no condition or combination of conditions set forth in subsection
(b) of Section 110-10 of this Article can mitigate (i) the real and present threat to the safety of any
person or persons or the community, based on the specific articulable facts of the case.” Id. § 110-
.1(e)(3). I simply cannot agree with any decision that so obviously undermines the legislature’s
mandate in article 110 of the Act (725 ILCS 5/art. 110 (West 2022).
¶ 22 Unfortunately, the State’s approach in this case is emblematic of its general approach to
pretrial-release cases. A staggering number of cases have come before this court on appeal in which
the State either said nothing about conditions (like this case) or simply stated in a conclusory
fashion, i.e., with no specificity whatsoever pursuant to section 110-10(b) or otherwise, that no
condition or combination of conditions could mitigate the defendant’s safety threat or risk of
willful flight (see, e.g., [CITATION]). Neither of those scenarios is
adequate to satisfy the State’s burden under section 110-6.1(e)(3). It is not self-evident merely
because (1) a crime—even a heinous crime—has likely been committed and (2) if applicable, the
defendant poses a safety threat as defined by statute, that no condition or combination of conditions
exist that could mitigate the defendant’s safety threat if admitted to pretrial release. Id. ¶ 18.
Nevertheless, the State has largely treated pretrial-release cases this way and, largely, this court
has sanctioned the State’s improper approach.
¶ 23 In this regard, I would note that there has been a tendency of late by my colleagues on this
court to issue decisions in pretrial-release cases that claim the State can meet its burden of proof
under section 110-6.1(e) by producing evidence related to the factors the circuit court is statutorily
mandated to consider under section 110-5 when considering what conditions should attach to a
defendant’s pretrial release. See, e.g., [CITATION], ¶¶ 7-8. These decisions reflect a profound
misinterpretation of the pretrial-release statutory scheme.
¶ 24 Section 110-5, which contains a nonexhaustive list of factors the circuit court is required
to consider when imposing conditions of pretrial release, is not referenced at all in section 110-
.1(e). Id. The reason for this should be obvious. Section 110-5, which is titled “Determining the
amount of bail and conditions of release,” only applies after the court has received evidence and
heard arguments on whether a defendant should be detained rather than released; i.e., once the
discretion of the court has been invoked. See id. § 110-5. Language used throughout section 110-
confirms what ought to be obvious about when it applies. Subsection (a) provides factors for the
circuit court to consider when deciding what conditions should apply, if any, to pretrial release.
Id. § 110-5(a). Subsection (b) states that the court “may use a regularly validated risk assessment
tool to aid its determination of appropriate conditions of release.” (Emphasis added.) Id. § 110-
(b). Subsection (c) requires the court to impose conditions that are mandatory under section 110-
(a). Id. § 110-5(c). Other examples exist in the statute as well, but more are unnecessary. It is
abundantly clear that section 110-5 plays no part in the determination of whether the State has met
[SEGMENT 10]
its burden of proof under section 110-6.1(e).
¶ 25 Section 110-5 has been misused with increasing frequency by my colleagues on this court
to infer that the State can meet its burden of proof under section 110-6.1(e) by presenting evidence
that would be related to factors the circuit court must consider under section 110-5 when making
an entirely separate determination. See, e.g., [CITATION].
This case is no different. The majority in this case presents a misleading, overly generalized
summary of what section 110-6.1(e) requires and then immediately refers to section 110-5, as if
that section has something to do with the section 110-6.1(e) determination. Supra ¶ 10. In the next
paragraph, when it analyzes whether the circuit court erred in granting the State’s petition to detain,
the majority then explicitly uses section 110-5 as support for its decision: “[t]he State presented
evidence and argument regarding the factors in section 110-5(a), including the nature and
circumstance of the offense.” Supra ¶ 11. The majority’s use of section 110-5 in this manner is
manifestly incorrect under the law and underscores the erroneous nature of the majority’s decision.
¶ 26 For the foregoing reasons, I dissent.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 240057-U
Order filed April 24, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0057
v. ) Circuit No. 22-CF-977
)
JAMES L. FAINT, ) Honorable
) Vincent F. Cornelius,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAVENPORT delivered the judgment of the court.
Justice Holdridge concurred in the judgment.
Presiding Justice McDade dissented.
____________________________________________________________________________
ORDER
¶1 Held: The trial court did not abuse its discretion in granting the State’s petition to deny
pretrial release.
¶2 Defendant, James L. Faint, appeals the trial court’s decision to deny him pretrial release.
We affirm.
¶3 I. BACKGROUND ¶4 Defendant, James L. Faint, was indicted on July 14, 2022, with unlawful possession of a
weapon by a felon (Class 3) ([CITATION]), two counts of aggravated
unlawful use of a weapon (Class 4) ([CITATION]), and aggravated fleeing or attempting to elude a
peace officer (Class 4) ([CITATION]). Defendant’s bail was set at
$100,000, but he remained in custody. On January 9, 2024, defendant filed a pro se petition
seeking pretrial release. In response, the State filed a verified petition to deny pretrial release,
alleging defendant was charged with a nonprobationable felony, and his release posed a real and
present threat to the safety of any person, persons, or the community under section 110-6.1(a)(1)
of the Code of Criminal Procedure of 1963 ([CITATION]).
¶5 The factual basis provided that on May 8, 2022, officers observed a vehicle traveling at a
speed of 65 miles per hour in a 35 mile per hour speed zone. Defendant was driving the vehicle.
The officers initiated their lights and sirens, and defendant turned and disobeyed a stop sign.
Officers continued to pursue defendant. The officer was driving at a speed of 76 miles per hour to
try to catch defendant, but defendant continued to pull away. The officers lost sight of defendant,
and the pursuit terminated.
¶6 Police received dispatch that a citizen observed a woman run past his house. The woman
was found in the backyard of a house where the residents did not know her. A firearm was
recovered near the woman, and the homeowners confirmed the firearm was not theirs. An officer
spoke to the woman, who told officers she was in the car defendant was driving. Defendant gave
her the weapon and told her to take it when they left the vehicle. The vehicle was found, and
officers located defendant’s identification and cellphone inside. A search warrant was executed on
defendant’s cellphone, which uncovered multiple “selfie” videos from before the pursuit where
defendant was seen holding the firearm recovered. Officers were able to confirm it was the same
firearm as it was unique and had an extended magazine. Defendant was a felon and did not have a
valid firearm owner’s identification (FOID) card. At the time of the offense, defendant was on
bond in another case. Defendant had a prior criminal history which included a 2019 conviction for
theft.
¶7 A hearing was held on January 11, 2024, on this case and defendant’s other pending case.
The State provided the factual basis and argued defendant was a felon, was on bond, and was not
supposed to have guns. The State indicated defendant posed a threat to the community by his
possession of the firearms and stated,
“I don’t think he would obey any lawful orders of the Court, because he has been
given a chance to be put on bond to obey certain conditions of bond. But even more
so, he was convicted and was given rules that he was supposed to follow, and he
doesn’t follow those, allegedly, for three separate occasions.”
The State further said,
“I believe [defendant] has been given a couple chances to be able to show the Court
that he is able to follow conditions of bond, conditions of convictions, and he has
not shown the Court that he would be able to do that. And I think that goes greatly
to the fact that there could be no condition or combination of conditions that would
be able to prevent [defendant] from being a risk to the community.”
Defendant argued he was not a threat and stated that “there was no harm done.” Defendant also
argued there was insufficient evidence that he committed the offenses. Defendant stated that he
would comply with any conditions of pretrial release and indicated he had a family to care for.
While defendant said he had never failed to appear, the State indicated he did have failures to
appear in a previous case.
¶8 The court granted the petition, finding the State met its burden by clear and convincing
evidence. In doing so, the court stated defendant had three pending cases, all of which were
“unlawful use of weapons by a felon” cases, and in all three defendant was on some sort of release,
whether parole or bond. The court further noted defendant was known to possess weapons. The
court said,
“The Court further finds that, given three consecutive possessions of firearm in a
short window of time while in vehicles and while on parole and/or bond, *** there’s
nothing that this Court can think of *** that would mitigate your ability to do that.
I don’t think an electronic home monitor *** restricts your ability to possess
firearms. I don’t think home detention would restrict your ability to possess
firearms.”
¶9 II. ANALYSIS
¶ 10 On appeal, defendant argues the court abused its discretion in granting the State’s petition
“where the State failed to clearly and convincingly prove that [defendant] poses a real and present
safety threat that no conditions could mitigate.” We consider factual findings for the manifest
weight of the evidence, but the ultimate decision to grant or deny the State’s petition to detain is
considered for an abuse of discretion. [CITATION], ¶ 13. Under
either standard, we consider whether the court’s determination is arbitrary or unreasonable. Id.;
see also [CITATION], ¶ 19.
¶ 11 Everyone charged with an offense is eligible for pretrial release, which may only be denied
in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a verified
petition requesting the denial of pretrial release. Id. § 110-6.1. The State then has the burden of
proving by clear and convincing evidence (1) the proof is evident or presumption great that
defendant committed a detainable offense, (2) defendant poses a real and present threat to any
person, persons, or the community or is a flight risk, and (3) no conditions could mitigate this
threat or risk of flight. [CITATION] § 110-6.1(a), (e). Sections 110-5(a) and 110-6.1(g) set forth factors for
the court to consider when determining dangerousness and any conditions. [CITATION] §§ 110-5(a), 110-
.1(g).
¶ 12 We cannot say the court abused its discretion in granting the State’s petition. Defendant
[SEGMENT 11]
continued to possess firearms, though he was a felon and on bond. He also led officers in a high-
speed chase, thus showing that he was dangerous. Moreover, the State presented evidence and
argument regarding the factors in section 110-5(a), including the nature and circumstance of the
offense. [CITATION] The State argued defendant had been on bond and was a felon, did not follow the
conditions placed on him then, and would not comply with any further conditions of the court. The
court further found no conditions would prevent defendant from possessing firearms. Based on the
evidence and argument presented, it was not against the manifest weight of the evidence for the
court to determine the defendant was thus unlikely to comply with any conditions of pretrial
release. Therefore, the court did not abuse its discretion in granting the State’s petition.
¶ 13 III. CONCLUSION
¶ 14 We affirm the judgment of the circuit court of Will County.
¶ 15 Affirmed.
¶ 16 PRESIDING JUSTICE McDADE, dissenting:
¶ 17 The majority has affirmed the circuit court’s decision to grant the State’s petition to deny
Faint pretrial release. I would hold that the State failed to meet its burden of proof under section
-6.1(e)(3) and that Faint would necessarily have to be admitted to pretrial release despite the
nature of his alleged crimes. Thus, I dissent.
Certainly! The given text does not contain any court ruling citations. Therefore, no replacements are needed. Also, I have preserved the formatting as you instructed.
====== Processed Court Ruling ======
¶ 18 In full, section 110-6.1(e) states:
“(e) Eligibility: All defendants shall be presumed eligible for pretrial
release, and the State shall bear the burden of proving by clear and convincing
evidence that:
(1) the proof is evident or the presumption great that the defendant has
committed an offense listed in subsection (a), and
(2) for offenses listed in paragraphs (1) through (7) of subsection (a), the
defendant poses a real and present threat to the safety of any person or persons or
the community, based on the specific articulable facts of the case, by conduct
which may include, but is not limited to, a forcible felony, the obstruction of
justice, intimidation, injury, or abuse as defined by paragraph (1) of Section 103
of the Illinois Domestic Violence Act of 1986, and
(3) no condition or combination of conditions set forth in subsection (b) of
Section 110-10 of this Article can mitigate (i) the real and present threat to the
safety of any person or persons or the community, based on the specific
articulable facts of the case, for offenses listed in paragraphs (1) through (7) of
subsection (a), or (ii) the defendant’s willful flight for offenses listed in paragraph
(8) of subsection (a), and
(4) for offenses under subsection (b) of Section 407 of the Illinois
Controlled Substances Act that are subject to paragraph (1) of subsection (a), no
condition or combination of conditions set forth in subsection (b) of Section 110-
of this Article can mitigate the real and present threat to the safety of any
person or persons or the community, based on the specific articulable facts of the
case, and the defendant poses a serious risk to not appear in court as required.”
ILCS 5/110-6.1(e) (West 2022).
While not every subsection of section 110-6.1(e) may be applicable in any given case, the statute
is abundantly clear that the burden of proving that a defendant should be detained, rather than
released, lies with the State.
¶ 19 “Burden of proof” contains two concepts: a burden of production and a burden of
persuasion. Black’s Law Dictionary 196 (6th ed. 1990). The burden of production is “[t]he
obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.”
Id. The burden of persuasion is “[t]he onus on the party with the burden of proof to convince the
trier of fact of all elements of his case.” Id. In pretrial-release cases, then, when the State opposes
release and seeks detention, it would seem elementary that for the State to meet its legislatively
mandated burden under section 110-6.1(e)(3), it would at a minimum produce evidence and
present argument related to the conditions listed in section 110-10(b) because that section is
explicitly referenced by section 110-6.1(e)(3). 725 ILCS 5/110-6.1(e)(3) (West 2022); see [CITATION]. Of course, not every conceivable condition of
pretrial release would need to be addressed by the State to meet its burden under section 110-
.1(e)(3). But the language of that section shows that the legislature contemplated what conditions
would arguably be applicable and mandated that the State produce evidence and present argument
on them.
¶ 20 If the State fails to meet its burden of proof—namely, its burdens of production and
persuasion—under section 110-6.1(e), the presumption that the defendant is eligible for release
stands and the defendant cannot be detained. See 725 ILCS 5/110-6.1(e) (West 2022). If, on the
other hand, the State satisfies its burden, the presumption vanishes. However, detention in that
situation is not automatic, as the ultimate decision of whether a defendant will be released or
detained has now passed squarely into the discretionary power of the circuit court. See, e.g., [CITATION]
¶ 13 (holding that “[w]e review for an abuse of discretion
the trial court’s ultimate determination regarding pretrial release”).
¶ 21 In this case, the State’s petition to deny pretrial release was based on sections 110-6.1(a)(1),
(6), and (8). Regarding subsections (a)(1) and (a)(6), the State was therefore required to prove by
clear and convincing evidence, in relevant part, that (1) “the proof is evident or the presumption
great that the defendant has committed an offense listed in subsection (a)” (725 ILCS 5/110-
.1(e)(1) (West 2022)); (2) “the defendant poses a real and present threat to the safety of any person
or persons or the community, based on the specific articulable facts of the case” (id. § 110-
.1(e)(2)); and (3) “no condition or combination of conditions set forth in subsection (b) of Section
-10 of this Article can mitigate (i) the real and present threat to the safety of any person or
persons or the community, based on the specific articulable facts of the case” (id. § 110-6.1(e)(3)).
¶ 22 At the hearing in this case, the State presented evidence of the circumstances surrounding
the incident leading to the charges that were filed against Faint. The State emphasized that Faint
was out on bond at the time he committed the alleged offenses and that one condition of his bond
was a prohibition on possessing firearms. Because Faint violated that condition, the State
continued, he was not likely to abide by any conditions such that no conditions could mitigate the
safety risk he posed.
¶ 23 As I stated above, I believe that to meet its burden of proof under section 110-6.1(e)(3),
the State ought to address, at a minimum, the conditions explicitly listed in section 110-10(b).
Supra ¶ 19. Here, while the State did address one of those conditions—a prohibition on possessing
firearms (id. § 110-10(b)(2))—it was an unsubstantiated leap for the State to conclude that the
```plaintext
failure of Faint to abide by one condition meant that he would not follow any conditions and that
no conditions therefore could mitigate the safety threat he posed. The State cannot meet its burden
of proof under section 110-6.1(e)(3) by addressing only one of the conditions listed in section 110-
(b), and it certainly cannot persuasively conclude, without more, that the failure to abide by one
condition means Faint would not abide by any conditions. Accordingly, under these circumstances,
I would hold that the State failed to meet its burden of proof under section 110-6.1(e)(3) regarding
its claims that subsections 110-6.1(a)(1) and (6) compelled his detention.
¶ 24 In this regard, I would note that there has been a tendency of late by my colleagues on this
court to issue decisions in pretrial-release cases that claim the State can meet its burden of proof
under section 110-6.1(e) by producing evidence related to the factors the circuit court is statutorily
mandated to consider under section 110-5 when considering what conditions should attach to a
defendant’s pretrial release. See, e.g., [CITATION], ¶¶ 7-8. These decisions reflect a profound misinterpretation of the pretrial-release
[SEGMENT 12]
statutory scheme.
¶ 25 Section 110-5, which contains a nonexhaustive list of factors the circuit court is required
to consider when imposing conditions of pretrial release (725 ILCS 5/110-5 (West 2022)), is not
referenced at all in section 110-6.1(e) (id. § 110-6.1(e)). The reason for this should be obvious.
Section 110-5, which is titled “Determining the amount of bail and conditions of release,” only
applies after the court has received evidence and heard arguments on whether a defendant should
be detained rather than released; i.e., once the discretion of the court has been invoked. See id.
§ 110-5. Language used throughout section 110-5 confirms what ought to be obvious about when
it applies. Subsection (a) provides factors for the circuit court to consider when deciding what
``` ```plaintext
conditions should apply, if any, to pretrial release. Id. § 110-5(a). Subsection (b) states that the
court “may use a regularly validated risk assessment tool to aid its determination of appropriate
conditions of release.” (Emphasis added.) Id. § 110-5(b). Subsection (c) requires the court to
impose conditions that are mandatory under section 110-10(a). Id. § 110-5(c). Other examples
exist in the statute as well, but more are unnecessary. It is abundantly clear that section 110-5 plays
no part in the determination of whether the State has met its burden of proof under section 110-
.1(e).
¶ 26 Section 110-5 has been misused with increasing frequency by my colleagues on this court
to infer that the State can meet its burden of proof under section 110-6.1(e) by presenting evidence
that would be related to factors the circuit court must consider under section 110-5 when making
an entirely separate determination. See, e.g., [CITATION].
This case is no different. The majority in this case presents a misleading, overly generalized
summary of what section 110-6.1(e) requires and then immediately refers to section 110-5, as if
that section has something to do with the section 110-6.1(e) determination. Supra ¶ 11. In the next
paragraph, when it analyzes whether the circuit court erred in granting the State’s petition to detain,
the majority then explicitly uses section 110-5 as support for its decision: “the State presented
evidence and argument regarding the factors in section 110-5(a), including the nature and
circumstance of the offense.” Supra ¶ 12. The majority’s use of section 110-5 in this manner is
manifestly incorrect under the law and underscores the erroneous nature of the majority’s decision.
¶ 27 I note that while the State also sought detention pursuant to section 110-6.1(a)(8), the
circuit court explicitly stated that it was not making any finding under the willful-flight standard.
Thus, the section 110-6.1(a)(8) allegation cannot serve as a basis for detaining Faint in this case.
``` ¶ 28 In sum, because the State failed to meet its burden of proof under section 110-6.1(e)(3),
the statutory presumption in favor of release was not rebutted. Thus, Faint should have been
released.
¶ 29 For the foregoing reasons, I dissent.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 240399-U
Order filed September 23, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0399
v. ) Circuit No. 23-CF-402
)
KENNETH C. MURRELL, ) Honorable
) Kathy S. Bradshaw-Elliott,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court.
Justices Holdridge and Hettel concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The court did not err in detaining defendant or in considering his motion for relief
days after filing.
¶2 Defendant, Kenneth C. Murrell, appeals from the Kankakee County circuit court’s
detention order arguing that the State failed to meet its burden of showing that conditions of release
would not mitigate any danger he posed and the court erred in considering his motion for relief 35
days after filing. We affirm. ¶3 I. BACKGROUND
¶4 In July 2023, defendant was indicted with criminal sexual assault (Class 1) (720 ILCS
5/11-1.20(a)(1) (West 2022)). Defendant’s bond was initially set at $150,000, but he remained in
custody. In May 2024, defendant filed a motion seeking pretrial release. In response, the State filed
a verified petition to deny pretrial release, alleging defendant was charged with a detainable
offense, and his release posed a real and present threat to the safety of any person, persons, or the
community under section 110-6.1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-
6.1(a) (West 2022)).
¶5 A hearing was held on May 8, 2024. The State provided the factual basis, indicating that
officers were called for reports of a sexual assault on June 16, 2023. When the officers arrived,
they spoke with the victim, Helen G. Helen stated that defendant was her ex-boyfriend. She invited
defendant to her house because defendant had intimate photographs of her on his cell phone that
she wanted him to delete. Defendant entered her bedroom, sat on the bed, and acted like he was
deleting the photographs. Helen did not believe defendant was deleting the photographs so she
took his cell phone. She saw that defendant had not deleted them, and she began to do so.
Defendant then tried to touch her breast and remove her shirt. Helen told him to stop. Defendant
then pushed her down on the bed, held her down, and lifted her skirt up. Defendant penetrated her
vagina with his penis, “ejaculate[d] inside of her,” and then left. Helen went to the hospital and
submitted to a sexual assault kit. The vaginal swab was taken to the state police crime laboratory,
and the DNA was identified as belonging to defendant. Defendant was apprehended later that day
and stated that he did not know who Helen was and did not touch her.
¶6 The State indicated that defendant’s criminal history included two Class X felony
convictions. In 2011, defendant was convicted of manufacturing and delivering a controlled
substance within a school zone and was sentenced to 18 years’ imprisonment. He was also
previously convicted of predatory criminal sexual assault of a child. He had also failed to register
as a sex offender in 2010. Defendant testified that he had a bone protruding through his left
shoulder that he needed to have surgery on. Defense counsel stated that it was defendant’s position
that the sexual encounter was consensual. Counsel stated that defendant would comply with any
conditions placed on him.
¶7 The court found that the State met its burden by clear and convincing evidence. In doing
so it stated, in pertinent part, “I don’t believe there’s any condition or combination that can mitigate
the real and present threat. As I said, he’s already a registered sex offender and has a predatory
criminal sexual assault.” On May 10, 2024, defendant filed a motion for relief. Counsel’s notice
of filing and hearing to the State indicated that the hearing would be held on June 14, 2024. After
the hearing, the court denied the motion.
¶8 II. ANALYSIS
¶9 On appeal, defendant contends that the court erred in (1) granting the petition to detain
where the State failed to meet its burden of showing that conditions of release would not mitigate
any danger he posed and (2) failing to “promptly hear and decide the motion for relief.” We
consider factual findings for the manifest weight of the evidence, but the ultimate decision to grant
or deny the State’s petition to detain is considered for an abuse of discretion. [CITATION],
¶ 9. Under either standard, we consider whether the court’s
determination is arbitrary or unreasonable. Id.
¶ 10 Everyone charged with an offense is eligible for pretrial release, which may only be denied
in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a verified
petition requesting the denial of pretrial release. Id. § 110-6.1. The State then has the burden of
proving by clear and convincing evidence (1) the proof is evident or presumption great that
defendant committed a detainable offense, (2) defendant poses a real and present threat to any
person, persons, or the community or is a flight risk, and (3) no conditions could mitigate this
threat or risk of flight. Id. § 110-6.1(e). “When determining a defendant’s dangerousness and the
conditions of release, the statute includes a nonexhaustive list of factors the court can consider.”
[CITATION], ¶ 12.
¶ 11 We find that the court did not err in finding that there were no conditions to mitigate the
threat defendant posed. The statute provides factors the court can consider when considering the
conditions of release, and the State presented evidence of such factors, including the nature and
circumstances of the offense and the history and characteristics of defendant. See 725 ILCS 5/110-
(West 2022). Defendant had committed a similar prior offense and had a history of failing to
register, thus showing that he may not follow edicts of the court. Taking the evidence before us,
we cannot say the court’s decision to detain defendant was an abuse of discretion.
¶ 12 Defendant further argues that the court did not consider his motion for relief “promptly.”
Illinois Supreme Court Rule 604(h)(2) states, “[t]he trial court shall promptly hear and decide the
motion for relief.” Defendant argues that, since 35 days had elapsed before the court held a hearing
on the motion, the court did not act “promptly.”
¶ 13 We need not determine whether 35 days was prompt under the statute. Our review of the
record shows that defense counsel filed the motion for relief on May 10, 2024. In counsel’s notice
to the State, he indicated that he was setting the case for hearing on June 14, 2024. Under the
doctrine of invited error, “a party may not request the court to proceed in one manner and then
argue on appeal that the requested action was error.” [CITATION], ¶ 24. “The rationale for the doctrine is that it would be unfair to grant a party relief based on error
that she introduced into the proceedings.” Id. Here, defense counsel specifically asked that his
motion be heard on June 14, 2024. Defendant cannot now argue that it was error for the court to
hold the hearing on the date requested.
¶ 14 Nonetheless, we would be remiss if we did not note that the supreme court has not placed
a timeframe on the court’s hearing on a motion for relief. Had the supreme court or the legislature
sought to require the court to hold the hearing within a certain time, they would have done so, as
they did in other portions of the rules and statute pertaining to detention hearings. See [CITATION] (requiring the court consider detention within 24 or 48 hours).
¶ 15 III. CONCLUSION
¶ 16 The judgment of the circuit court of Kankakee County is affirmed.
¶ 17 Affirmed.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 240367-U
Order filed September 9, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
[SEGMENT 2]
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0367
v. ) Circuit No. 24-CF-5
)
MICHAEL A. BOAZ, ) Honorable
) H. Chris Ryan Jr.,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE ALBRECHT delivered the judgment of the court.
Justice Davenport concurred in the judgment.
Presiding Justice McDade dissented.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not abuse its discretion in granting the State’s verified
petition to detain defendant.
¶2 Defendant, Michael A. Boaz, appeals from the circuit court’s decision to grant the State’s
verified petition to deny pretrial release. We affirm.
¶3 I. BACKGROUND ¶4 On January 2, 2024, the State charged defendant with home invasion (720 ILCS 5/19-
6(a)(3) (West 2022)), a Class X felony, and burglary (id. § 19-1(a)), a Class 2 felony. The State
filed a verified petition to deny defendant pretrial release, alleging he was charged with a
detainable offense and his release posed a real and present threat to the safety of any person,
persons, or the community under section 110-6.1(a)(1.5) of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/110-6.1(a)(1.5) (West 2022)).
¶5 The State’s factual basis in support of its petition provided that, on November 2, 2023,
officers were sent to the residence of Nicholas Garcia and spoke with him and his girlfriend,
Lauren Gama. Gama stated that she was asleep in the residence when she heard three male
voices. She text messaged Garcia and learned that he was not home. The power at the residence
then went out. Two men entered the bedroom, put a gun to Gama’s head, and demanded the code
to the safe, which she did not have. The men stayed at the residence for some time “rummaging
through items.” An Xbox gaming system was stolen. Gama then heard gunshots, and the men
fled out the back door. Garcia stated that he arrived home and was confronted by a man pointing
a pistol at him. Garcia indicated that he exchanged gunfire with the men in defense of his
residence. Two different calibers of shell casings were found at the scene. As police were
responding to the scene, an officer saw defendant walking in an alley one block west and three
blocks south of the home invasion. The officer made contact with defendant, who was wearing a
hooded sweatshirt that was damp with sweat, despite the fact that the temperature was below
freezing. Defendant stated that he had just come from his aunt’s house, but his aunt confirmed
that was a lie. Codefendant Fernando Martinez arrived at Morris Hospital with a gunshot wound
to his right arm. He would not provide details about the injury. Martinez’s girlfriend indicated
that he was shot in Mazon, and she picked him up there, but a subsequent analysis of her cell
phone showed that she was not near Mazon that evening. The cell phone also showed that she
was text messaging defendant at the hospital, providing updates. Defendant told her to stop
sending him text messages.
¶6 Defendant, Martinez, and two other men arrived at a residence belonging to Brandie
Smith later on the date of the incident, and video was captured from a neighboring residence. On
the video, Martinez was seen carrying a bag with what appears to be an Xbox inside. Martinez
pulled a handgun out of his waistband and handed it to another man. Martinez can be heard
describing the shooting on the video, stating “I didn’t blow at him first.” Martinez simulated the
shooting and said, “boom, boom, boom, boom.” He further described the length of time they
were in the home, the size of the safe, and standing over Gama requesting the code. Defendant
was identified on the video making statements such as “[Garcia] never walked in” and describing
the size of the safe to Smith. Smith stated that defendant was in possession of the Xbox when he
arrived. Smith gave the Xbox to a relative of the victims, which was turned over to the police.
The Xbox serial number matched the one that was stolen. Garcia had a security system in his
garage that took photographs. The last photograph before the power was cut showed a person in
the garage dressed in the same manner as defendant.
¶7 Defendant was on pretrial release in a pending felony burglary case at the time of the
instant offenses. A pretrial risk assessment indicated that defendant was a level two risk, with
level six being the highest possible risk. Defendant’s criminal history included convictions for
possession of a stolen firearm, forgery, criminal damage to property, and driving on a suspended
license.
¶8 On January 8, 2023, the court held a hearing on the State’s petition, which the court
granted without making the requisite findings required pursuant to the Code. See id. § 110-
6.1(h)(1). Defendant appealed, and this court reversed the court’s judgment and remanded for a
new pretrial detention hearing where the court was directed to make the required statutory
findings. [CITATION]
¶9 On May 3, 2024, the court held a new hearing on the State’s petition to deny defendant
pretrial release. The State provided the factual basis and noted defendant was on pretrial release
at the time, which he violated by committing the instant offense. The State argued defendant was
a threat and no conditions could mitigate the threat. Defense counsel argued there was no
indication that defendant was involved in the crime, was a violent person, or engaged in any
violence personally. Defense counsel asked the court to consider GPS monitoring, house arrest,
and/or reporting to pretrial services. The court granted the State’s petition, finding the State met
its burden by clear and convincing evidence. In doing so, the court noted defendant was involved
in a home invasion with a weapon during the night, which was a threat to a person or
community. The court found none of the available options for pretrial release would mitigate the
threat defendant posed based on the circumstances of this case. The court’s written order
provided that its reasoning was made on the record. On May 14, 2024, defendant filed a motion
for relief from denial of pretrial release. Following a hearing, the court denied the motion.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues the court erred in granting the State’s petition. We consider
factual findings for the manifest weight of the evidence, but the ultimate decision to grant or
deny the State’s petition to detain is considered for an abuse of discretion. [CITATION]
Under either standard, we consider whether the court’s
determination is arbitrary or unreasonable. Id.
¶ 12 Everyone charged with an offense is eligible for pretrial release, which may only be
denied in certain situations. [CITATION] The State must file a
verified petition requesting the denial of pretrial release. [CITATION] The State then has the
burden of proving by clear and convincing evidence (1) the proof is evident or presumption great
that defendant committed a detainable offense, (2) defendant poses a real and present threat to
any person, persons, or the community or is a flight risk, and (3) no conditions could mitigate
this threat or risk of flight. [CITATION] When determining a defendant’s dangerousness
and the conditions of release, the statute includes a nonexhaustive list of factors the court can
consider. [CITATION]
¶ 13 We find the court did not abuse its discretion by detaining defendant. First, the proof was
evident defendant committed the detainable offense where he was stopped by an officer in a
nearby alley close to the location of the crime, he was sweaty and the temperature was below
freezing, the clothing he was wearing at that time matched the clothing in the surveillance
photograph taken from the victims’ home, defendant gave an alibi refuted by his aunt, defendant
received text messages from a codefendant’s girlfriend providing updates while at the hospital
until he told her to stop, and later video surveillance showed defendant with his codefendants
where he discussed specific details of the crime and they had the stolen Xbox in their possession.
Second, it was not against the manifest weight of the evidence for the court to find that he posed
a danger to the community. Defendant committed a home invasion, where the power was cut
from a home, entry was forced into a residence, a victim was held at gunpoint, an item was
stolen, and gunshots were fired at another victim. Third, the State presented evidence that there
were no conditions available to mitigate the threat defendant posed. The statute provides factors
the court can consider when considering the conditions of release, and the State presented
evidence of such factors, including the nature and circumstances of the offense and the history
[SEGMENT 3]
and characteristics of defendant. Id. § 110-5. Defendant committed these offenses while on
pretrial release for a different felony burglary and had a criminal history. The court found that
there were no circumstances where pretrial release would mitigate the risk defendant posed. This
was not against the manifest weight of the evidence. Taking the evidence before us, we cannot
say the court’s decision to detain defendant was an abuse of discretion.
¶ 14 In coming to this conclusion, we reject defendant’s argument that the court’s findings on
remand were no better than at the initial hearing, which this court found to be insufficient. At the
initial hearing, the court made no findings on each of the propositions whereas, on remand, the
court made findings for each proposition. Further, we find no issue with the court’s written order
providing its findings were made of record because “where the transcript and order of the court
provide an equal opportunity to review the validity of the finding on appeal, it is sufficient.”
(Internal quotation marks omitted.) [CITATION]
¶ 15 III. CONCLUSION
¶ 16 The judgment of the circuit court of La Salle County is affirmed.
¶ 17 Affirmed.
¶ 18 PRESIDING JUSTICE McDADE, dissenting:
¶ 19 I dissent from the majority’s decision to affirm the circuit court’s order granting the
State’s verified petition to deny pretrial release.
¶ 20 As the majority recites, section 110-6.1(e) of the Code of Criminal Procedure of 1963
states that “[a]ll defendants shall be presumed eligible for pretrial release. . . .” 725 ILCS 5/110-
.1(e) (West 2022). To rebut this presumption, the State must prove the following three
elements, by clear and convincing evidence: (1) that the proof is evident or the presumption great
that the defendant has committed a detainable offense; (2) that the defendant poses a real and
present threat to the safety of any person, persons, or the community, or a risk of flight; and (3)
that no conditions can mitigate this threat. [CITATION]
¶ 21 I agree with the majority’s findings that the State met its burden of proof with respect to
the first and second of the above elements. Regarding the third element, the majority finds that
the circuit court’s determination that there were no mitigating conditions was not against the
manifest weight of the evidence because defendant had a criminal history and allegedly
committed the offense in this case while on pretrial release for another case involving burglary.
As the majority details, defendant’s criminal history includes convictions for possession of a
stolen firearm, forgery, criminal damage to property, and driving on a suspended license, and a
charge of burglary. None of these convictions or charges inherently involves an act of violence
against another person, and there is nothing in the record sufficiently indicating defendant’s
actual involvement in any such activity. Moreover, as the majority further details, defendant was
assessed as only a level two out of six risk on his pretrial risk assessment. Based on such facts
and evidence, it is questionable whether defendant posed any actual danger and doubtful that no
conditions—including GPS, as he himself urged—could mitigate any alleged dangerousness.
Accordingly, I would find that the State failed to meet its burden of proof regarding the third
element and reverse the circuit court’s order as an abuse of discretion.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 240232-U
Order filed July 15, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal Nos. 3-24-0232,
)
-24-0234
v. ) Circuit Nos. 23-CF-2190,
)
-CF-543
)
JORGE L. MARTINEZ, ) Honorable
) David Carlson and Donald DeWilkins,
Defendant-Appellant. ) Judges, Presiding.
____________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices Hettel and Peterson concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: (1) The State failed to prove that defendant had a high likelihood of willful flight
to avoid prosecution. (2) The court did not err in finding that there were no
conditions to mitigate defendant’s dangerousness
¶2 Defendant, Jorge L. Martinez, appeals his pretrial detention, arguing the State failed to
prove he had a high likelihood of willful flight to avoid prosecution, and the court erred in granting the State’s petition where there were conditions to mitigate his dangerousness. We affirm in part
and reverse in part.
¶3 I. BACKGROUND
¶4 Defendant, Jorge L. Martinez, was indicted on January 4, 2024, in case number 23-CF-
2190 with two counts of aggravated fleeing or attempting to elude a peace officer (Class 3) (625
ILCS 5/11-204.1(a)(4), (b) (West 2022)). A warrant was issued for his arrest. Defendant was then
charged on March 21, 2024, in case number 24-CF-543 with possession of a controlled substance
with intent to deliver (Class X) (720 ILCS 570/401(a)(2)(A) (West 2022)), two counts of unlawful
possession of a controlled substance (Class 1 and Class 4) (id. § 402(a)(2)(A), (c)), three counts of
aggravated fleeing or attempting to elude a peace officer (Class 3) (625 ILCS 5/11-204.1(a)(2),
(a)(3), (b) (West 2022)), and reckless driving (Class 4) (id. § 11-503(a)(1), (b-1)). Defendant was
arrested, and the State filed verified petitions to deny pretrial release in each case under section
110-6.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-6.1 (West 2022)).
¶5 A. 23-CF-2190
¶6 In 23-CF-2190, the State alleged that defendant had a high likelihood of willful flight to
avoid prosecution. The factual basis provided that officers were conducting general surveillance.
They observed a subject enter a black Sonata. They saw it pull out and observed that it had no rear
registration light. They followed the vehicle, which made a right turn without stopping at the stop
sign. They attempted to conduct a stop on the vehicle. The vehicle took off, ignoring two stop
signs and a stop light. Their investigation revealed the car was registered to defendant’s mother.
They reviewed a photograph of defendant and identified him as the subject.
¶7 A hearing was held on March 22, 2024. The State provided the factual basis and argued
that defendant posed a risk of willful flight to avoid prosecution, based on the fact that he was
charged with aggravated fleeing and eluding in two separate cases. Defense counsel stated that
defendant had transportation to work and would abide by court orders. The court detained
defendant, stating,
“By clear and convincing evidence I find that [defendant] poses a threat to
individuals, to the community at large and quite frankly to society as a whole. Some
of the allegations set forth in the petition include not just the idea that he, in this
Court’s opinion, fled from the police and was on pretrial release for fleeing from
the police, but that he also hurt an 11 year old child in the process. And it appears
that—I think it would be important to indicate on the record some of the issues set
forth. And that includes that he traveled at a high rate of speed, swerving in and out
of traffic and went airborne over the railroad crossing at 4:30 p.m. on a Tuesday
afternoon, while allegedly, but based upon the petition, carrying in his vehicle, that
he said wasn’t his, what’s purported to be 27 grams of rock cocaine, 9.8 grams of
field-tested positive cannabis and 44 blue pills that will either come back as
oxycodone, hydrochloride or fentanyl, once a confirmatory test is done.”
¶8 Counsel pointed out that defendant was not on pretrial release in this case when committing
another offense, but just had an outstanding warrant. The court stated that defendant did have a
prior aggravated fleeing and eluding conviction. The State asked whether the court was also
finding that defendant posed a flight risk and the court stated, “Yes.”
¶9 B. 24-CF-543
¶ 10 As to 24-CF-543, the State alleged that defendant committed a felony that involved the
threat or infliction of great bodily harm, permanent disability, or disfigurement and his release
[SEGMENT 4]
posed a real and present threat to the safety of any person or the community. The factual basis
provided that on November 1, 2023, officers observed defendant disregard a red light. Defendant
then traveled at a high rate of speed, swerved in and out of traffic, and “went airborne over a
railroad crossing.” The officers activated their emergency lights and attempted to catch up to the
vehicle. Officers observed that defendant crashed into a fence on the lawn of a cemetery.
Defendant exited the vehicle and began running. He was eventually taken into custody after falling
to the ground.
¶ 11 Officers learned that during the crash, defendant struck an 11-year-old pedestrian.
Defendant also crashed into another vehicle. On the passenger floorboard of the vehicle driven by
defendant was a large plastic bag containing multiple small clear plastic baggies with a white rock-
like substance, which tested positive for cocaine and weighed 27 grams. There were 44 blue pills
stamped “M30”, which were likely oxycodone, and 9.83 grams of cannabis. Defendant stated that
he thought the officers were his enemies, and he did not want to be shot at so he took off. He
denied ownership of the drugs and stated the vehicle was not his. Defendant was not the registered
owner of the vehicle, but the owner was the same individual who owned the vehicle he used to
flee in a prior case. A pretrial risk assessment indicated that defendant was a Level 3 risk, with
Level 6 being the highest level of risk. Defendant’s prior convictions included leaving the scene,
aggravated feeling the police, domestic battery, aggravated unlawful use of a weapon, and
unlawful possession of a handgun.
¶ 12 A hearing was held on March 21, 2024. The State provided the factual basis and
defendant’s criminal history. The State argued the nature and circumstances of the offense, the
identity of the person or persons whose safety he was believed to pose a threat, defendant’s history,
and the fact that defendant was known to possess or have access to weapons. The State said there
were no conditions that could mitigate the threat to the public. Defense counsel asked that
defendant be released, stating that he was working, had young kids that he assisted taking care of,
and would be able to get to court without having to drive.
¶ 13 The court granted the State’s petition, finding that it met its burden by clear and convincing
evidence. The court stated that defendant committed a detainable offense and posed a real and
present threat to the safety of the community. The court said it then had to make a determination
as to whether there were conditions that could mitigate the real and present threat to the safety of
the community. The court stated,
“The Court finds the State has met their burden by clear and convincing evidence
for the following reasons: The nature and circumstance of the offense charged. Let
the record reflect I am not taking into consideration Counts, 3, 4 and 5 which are
the Aggravated Fleeing and Eluding because I did not find [probable cause]. So I
don’t believe at this time that would be appropriate to consider that. But what the
Court does have in front of us is Possession of a Controlled Substance with Intent
to Deliver, a Class-X felony, Unlawful Possession of a Controlled Substance, a
Class-1 felony, which I did find [probable cause].
What the Court also finds troubling in this matter is the fact that there was
an eleven-year-old child that was struck by the defendant’s vehicle. Whether or not
the defendant fled from the police, he left the scene of the accident where the minor
child was struck and taken to the hospital and there was [sic] witnesses to that. The
defendant also in this matter, there were observations of reckless driving, that he
was driving at a high rate of speed, driving in the other land of traffic and weaving
back and forth which, clearly, is a danger to the community in regards to that, for
the facts in this matter.”
¶ 14 The court stated that it was also taking into consideration defendant’s history and
characteristics, the age and physical condition of the minor child, and the fact that defendant was
known to possess or have access to weapons. The court stated,
“Taking all those things into account, the Court does not believe that there’s a
condition or combination of conditions that can protect not only the minor child but
the community, in general, in this matter. Based on defendant’s—I would almost
call a horrific prior driving record where the community has been put in danger on
at least three prior occasions, notwithstanding this case that I did not consider.”
One written order was filed for both cases, on which the court checked boxes.
¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant argues that the State failed to prove (1) defendant posed a high
likelihood of willful flight to avoid prosecution in 23-CF-2190 and (2) that no conditions could
mitigate any threat he posed in 24-CF-543. We consider factual findings for the manifest weight
of the evidence, but the ultimate decision to grant or deny the State’s petition to detain is considered
for an abuse of discretion. [CITATION], ¶ 8. Under either
standard, we consider whether the court’s determination is arbitrary or unreasonable. Id.
¶ 17 Everyone charged with an offense is eligible for pretrial release, which may only be denied
in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a verified
petition requesting the denial of pretrial release. Id. § 110-6.1. The State then has the burden of
proving by clear and convincing evidence (1) the proof is evident or presumption great that
defendant committed a detainable offense, (2) defendant poses a real and present threat to any
person, persons, or the community or is a flight risk, and (3) no conditions could mitigate this
threat or risk of flight. Id. § 110-6.1(a), (e). When determining a defendant’s dangerousness and
the conditions of release, the statute includes a nonexhaustive list of factors the court can consider.
Id. §§ 110-6.1(g), 110-5.
¶ 18 A. 23-CF-2190
¶ 19 We agree with defendant that the State failed to prove that he posed a high likelihood of
willful flight to avoid prosecution. “Willful flight” is defined as “intentional conduct with a
purpose to thwart the judicial process to avoid prosecution.” Id. § 110-1(f).
“Isolated instances of nonappearance in court alone are not evidence of the risk of
willful flight. Reoccurrence and patterns of intentional conduct to evade
prosecution, along with any affirmative steps to communicate or remedy any such
missed court date, may be considered as factors in assessing future intent to evade
prosecution.” Id.
The State solely provided defendant’s charges and prior conviction for aggravated fleeing and
eluding as evidence of his likelihood of flight. This was not enough. See [CITATION]. While defendant had a fairly extensive criminal history, there was no
indication that he ever failed to appear in court. See id. ¶ 23. Therefore, we find that the court erred
in detaining defendant on 23-CF-2190.
¶ 20 B. 24-CF-543
¶ 21 We cannot say that it was against the manifest weight of the evidence for the court to find
that there were no conditions to mitigate defendant’s dangerousness in 24-CF-543. The record
available as to conditions is sufficient for our review. [CITATION], ¶ 11. The State presented evidence as to the statutory factors, including the nature and
circumstances of the offense and history and characteristics of defendant (see id. § 110-5).
Defendant had a significant criminal history, including violent offenses. He committed both of
these cases with a few months. The court noted that defendant had a “horrific” driving record and
continued to put the community in danger. In reaching its decision, the court considered the factors
set forth in the statute. See id. Taking the evidence before us, we cannot say the court’s decision
to detain the defendant was an abuse of discretion.
¶ 22 III. CONCLUSION
¶ 23 The judgment of the circuit court of Will County is affirmed in part and reversed in part.
¶ 24 Affirmed in part. Reversed in part.
2024 IL App (3d) 240180
Opinion filed July 2, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0180
v. ) Circuit No. 23-CF-470
)
JAMIYAH L. JOHNSON, ) Honorable
) Amy Bertani-Tomczak,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
[SEGMENT 5]
JUSTICE BRENNAN delivered the judgment of the court, with opinion.
Justice Davenport concurred in the judgment and opinion.
Presiding Justice McDade dissented, with opinion.
OPINION
¶1 Defendant, Jamiyah L. Johnson, appeals from the circuit court’s granting of the State’s
verified petition to deny pretrial release. For the reasons set forth below, we affirm.
¶2 I. BACKGROUND
¶3 Defendant, Jamiyah L. Johnson, was indicted on March 30, 2023, with aggravated
vehicular hijacking (Class X) (720 ILCS 5/18-4(a)(4), (b) (West 2022)), being an armed habitual
criminal (Class X) (id. § 24-1.7(a), (b)), aggravated unlawful possession of a stolen motor vehicle
(Class 1) (625 ILCS 5/4-103.2(a)(3), (c) (West 2022)), vehicular hijacking (Class 1) (720 ILCS 5/18-3(a), (b) (West 2022)), unlawful possession of a weapon by a felon (Class 2) (id. § 24-1.1(a),
(e)), and aggravated unlawful restraint (Class 3) (id. § 10-3.1(a), (b)). Defendant’s bail was set at
$2.5 million, but he remained in custody. On March 1, 2024, defendant filed a motion seeking
pretrial release. In response, the State filed a verified petition to deny pretrial release, alleging
defendant was charged with a nonprobationable felony and his release posed a real and present
threat to the safety of any person, persons, or the community under section 110-6.1(a)(1) of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.1(a)(1) (West 2022)). The petition
also alleged that defendant had a high likelihood of willful flight to avoid prosecution.
¶4 The factual basis provided that on March 10, 2023, at 7:26 a.m. officers were dispatched
for the report of a man attempting to stop cars on the roadway. The subject had approached Brian
Lewis and John Reynolds in their vehicles. When the officers arrived, Kaylee Thompson told them
that she stopped at a stop sign in her Dodge Charger when a man entered the passenger side of her
car, held a handgun to her head, and told Thompson to drive. Thompson drove across the road and
the man told her to “get the f*** out” of the vehicle. Thompson exited the vehicle, and the man
entered the driver’s side and fled in the Charger. Three witnesses also gave statements. The car
was equipped with a LoJack global positioning system (GPS), and officers were able to locate the
vehicle in Chicago about 35 yards from the residence of defendant’s girlfriend. The vehicle was
swabbed and tested for deoxyribonucleic acid (DNA). DNA located on the steering wheel and the
gear shift matched defendant.
¶5 Later that day officers recovered an abandoned vehicle approximately 350 yards from
where the hijacking had occurred. The vehicle belonged to Takyra Henderson. An officer
conducted a license plate reader canvass of the vehicle over the previous 48 hours and determined
the vehicle was in Bloomington the day before. Henderson and defendant had been arrested in
Bloomington at 1 a.m. on March 10. Defendant was released at approximately 3:36 a.m. The
booking photograph and body camera footage of defendant’s arrest in Bloomington matched the
description of the perpetrator. Thompson was unable to identify defendant in a photo lineup, but
Reynolds and Lewis immediately picked defendant out as the person who had approached them.
Henderson called the Braidwood police and indicated that she believed defendant stole her vehicle.
¶6 Defendant was arrested and interviewed. When asked how he got to Chicago from
Bloomington, defendant said his uncle picked him up, and they went to Danville. Defendant was
in possession of a cell phone and gave officers permission to search it. The cell phone had shared
its location in a text message on March 10 at 5:35 a.m., and the location showed the place where
Henderson’s car was subsequently found. Officers interviewed defendant’s girlfriend who stated
that Henderson was her cousin, and defendant drove from Bloomington in the car. She stated that
the car broke down on the side of the road and that she got mad at defendant and walked away.
¶7 The petition indicated that defendant was on parole for possession of a stolen motor vehicle
and aggravated unlawful use of a weapon. He had two other felony convictions for aggravated
unlawful use of a weapon.
¶8 A detention hearing was held on March 7, 2024. Defense counsel stated that defendant
could reside with his girlfriend in Lisle if released. Defendant had children, one of which had been
in an accident. Counsel asked that defendant be placed on electronic monitoring. The State
indicated that defendant was on parole at the time of the offense and had multiple felony
convictions. The State said when defendant’s DNA was run, it matched another vehicular hijacking
in 2018. The State further presented the factual basis and indicated that defendant was a flight risk
and a danger to the community.
¶9 The court granted the petition, finding the State met its burden by clear and convincing
evidence. In doing so the court stated, inter alia, that defendant was a flight risk and a danger to
the community and no other measures could be taken to assure the safety of the community or the
fact that he may flee. The court’s written order indicated that its decision was based on the nature
and circumstances of the offenses, defendant’s prior violent criminal history, his access to
weapons, the fact that he was on parole, and that defendant’s DNA was recovered from the car.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues that the court erred in granting the State’s petition to detain.
He solely argues that he could be placed on electronic monitoring. We consider whether factual
findings are against the manifest weight of the evidence, but the ultimate decision to grant or deny
the State’s petition to detain is reviewed for an abuse of discretion. [CITATION], ¶ 13. Under either standard, we consider whether the court’s determination is
arbitrary or unreasonable. Id.; see [CITATION], ¶ 19.
¶ 12 Everyone charged with an offense is eligible for pretrial release, which may only be denied
in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a verified
petition requesting the denial of pretrial release. Id. § 110-6.1. Section 110-6.1(d)(1) prescribes the
contents of the State’s petition, requiring that
“The petition shall be verified by the State and shall state the grounds upon which it
contends the defendant should be denied pretrial release, including the real and present
threat to the safety of any person or persons or the community, based on the specific
articulable facts or flight risk, as appropriate.” Id. § 110-6.1(d)(1).
Conspicuously absent from the required content of the petition is any requirement that the State
specifically address a nonexhaustive list of conditions that might arguably be imposed to mitigate
a defendant’s real and present threat.
¶ 13 The State then has the burden of proving by clear and convincing evidence (1) the proof is
evident or presumption great that defendant committed a detainable offense, (2) defendant poses
a real and present threat to any person, persons, or the community or is a flight risk, and (3) no
conditions could mitigate this threat or risk of flight. [CITATION]. Sections 110-5(a)
and 110-6.1(g) set forth factors for the court to consider when determining dangerousness and any
conditions. [CITATION]. Defendant does not challenge that the State satisfied its
burden as to the commission of a detainable offense or dangerousness. Rather, he argues that it did
not prove by clear and convincing evidence that no conditions could mitigate his threat to the
community.
¶ 14 Where a defendant’s danger is proven by clear and convincing evidence, the Code does, of
course, likewise require the State to prove by clear and convincing evidence that no condition or
combination of conditions can mitigate the threat. [CITATION]. This burden, however, can
be satisfied in a variety of ways: from the presentation of evidence to be sure, but also by common
sense consideration of the factors listed in section 110-5(a)(1)-(7), including the nature of the
offense, the strength of the case, the defendant’s mental condition, the defendant’s criminal history,
the defendant’s compliance with mandatory supervised release (MSR) or probation, etc. [CITATION].
The State’s burden does not obligate it to specifically address the efficacy of every
conceivable condition or combination of conditions. Rather, it is the trial court that must ultimately
consider all it has heard and, if ordering detention, make written findings explaining “why less
restrictive conditions would not avoid a real and present threat to the safety of any person or
[SEGMENT 6]
persons or the community.” Id. § 110-6.1(h)(1).
¶ 15 The record shows that the State presented information regarding the nature and
circumstances of the offenses, the history and characteristics of defendant, the violent offenses that
he had been convicted of, and the fact that he was on parole at the time of the offense. See id.
§ 110-5(a). As was observed in [CITATION],
“Section 110-5(a) refers to a defendant’s history and whether he or she was on parole,
probation, or other release at the time of the current offense, and section 110-2(a) notes
that pretrial release is generally presumed, but only on certain conditions, including that
‘the defendant *** complies with all terms of pretrial release.’ ” (Emphasis in original.)
Thus, the trial court is tasked with considering not just whether conditions short of detention exist,
but also whether a defendant is likely to comply with them.
¶ 16 Here, the proffered evidence that defendant failed to comply with conditions imposed while
on MSR by committing the exact same dangerous offenses satisfied the State’s burden of
establishing that no conditions less than detention could mitigate the risk to the community.
Defendant, on MSR for aggravated unlawful use of weapon and possession of a stolen vehicle,
forced himself into the victim’s car, held a gun to her head, forced her to drive a short distance,
and then ordered her out of the car which he then stole. Clearly, it was of no consequence to
defendant that he was on MSR at the time of the instant offenses, and it would be entirely
unreasonable to conclude he would comply with electronic home monitoring on pretrial release.
Simply put, the evidence supporting the State’s petition satisfied its burden. See [CITATION],
¶ 33 (where the defendant was on parole from a gun case and failed to
comply with the conditions placed upon him, this “demonstrated history of refusing to abide by
conditions of release” satisfied the State’s burden of showing no less restrictive conditions were
appropriate, and the trial court did not err in so finding); [CITATION], ¶¶ 31-32 (State satisfied burden of showing that no less restrictive conditions were
appropriate where the defendant’s history, including a prior conviction of escape from law
enforcement, demonstrated an unwillingness to follow rules and the unlikelihood that he would
follow the court’s order, rendering futile a release with conditions).
¶ 17 We conclude it was not against the manifest weight of the evidence for the court to find
that there were no conditions to mitigate the threat defendant posed. Therefore, the court did not
abuse its discretion in granting the State’s petition.
¶ 18 III. CONCLUSION
¶ 19 The judgment of the circuit court of Will County is affirmed.
¶ 20 Affirmed.
¶ 21 PRESIDING JUSTICE McDADE, dissenting:
¶ 22 The majority has affirmed the circuit court’s decision to grant the State’s petition to deny
Johnson pretrial release. I would hold that the State failed to meet its burden of proof under section
-6.1(e)(3) of the Code and that Johnson would necessarily have to be admitted to pretrial
release despite the nature of his alleged crimes. Thus, I dissent.
¶ 23 When reviewing a circuit court’s decision on pretrial release, we apply manifest-weight-
of-the-evidence review to the court’s factual findings and abuse-of-discretion review to the court’s
ultimate decision to grant or deny pretrial release. [CITATION], ¶ 13.
¶ 24 “All persons charged with an offense shall be eligible for pretrial release before
conviction.” 725 ILCS 5/110-2(a) (West 2022). The statutory scheme applicable to pretrial release
creates a presumption that a defendant is entitled to release. [CITATION] That presumption can only be
rebutted, and pretrial release denied, if the State files a verified petition opposing release and
satisfies a three-part burden of proof at a hearing in the circuit court on the matter. [CITATION] § 110-6.1(a).
That burden of proof is set forth in section 110-6.1(e) as follows:
“(e) Eligibility: All defendants shall be presumed eligible for pretrial
release, and the State shall bear the burden of proving by clear and convincing
evidence that:
(1) the proof is evident or the presumption great that the defendant
has committed an offense listed in subsection (a), and
(2) for offenses listed in paragraphs (1) through (7) of subsection
(a), the defendant poses a real and present threat to the safety of any
person or persons or the community, based on the specific articulable facts
of the case, by conduct which may include, but is not limited to, a forcible
felony, the obstruction of justice, intimidation, injury, or abuse as defined
by paragraph (1) of Section 103 of the Illinois Domestic Violence Act of
, and
(3) no condition or combination of conditions set forth in
subsection (b) of Section 110-10 of this Article can mitigate (i) the real
and present threat to the safety of any person or persons or the community,
based on the specific articulable facts of the case, for offenses listed in
paragraphs (1) through (7) of subsection (a), or (ii) the defendant’s willful
flight for offenses listed in paragraph (8) of subsection (a), and
(4) for offenses under subsection (b) of Section 407 of the Illinois
Controlled Substances Act that are subject to paragraph (1) of subsection
(a), no condition or combination of conditions set forth in subsection (b)
of Section 110-10 of this Article can mitigate the real and present threat to
the safety of any person or persons or the community, based on the
specific articulable facts of the case, and the defendant poses a serious risk
to not appear in court as required.” Id. § 110-6.1(e).
Not every subsection of section 110-6.1(e) may be applicable in any given case. For example,
depending on the offense(s) charged, either subsection (e)(3) or (e)(4) may apply; in both cases,
however, the State is still required to prove the “conditions” element that appears in both
subsections.
¶ 25 Despite the varying applicability of section 110-6.1(e)’s subsections, the statute is
abundantly clear that the burden of proving that a defendant should be detained, rather than
released, lies with the State. “Burden of proof” contains two concepts: first, a burden of “going
forward with the evidence,” i.e., a burden of production, and second, a burden of persuasion.
Black’s Law Dictionary 196 (6th ed. 1990). The burden of production is “[t]he obligation of a
party to introduce evidence sufficient to avoid a ruling against him on the issue.” Id. The burden
of persuasion is “[t]he onus on the party with the burden of proof to convince the trier of fact of
all elements of his case.” Id. In pretrial release cases, then, when the State opposes release and
seeks detention, it would seem elementary that for the State to meet its legislatively mandated
burden under section 110-6.1(e)(3) or (4), it would address at a very minimum the conditions
explicitly listed in section 110-10(b) because that section is explicitly referenced by section 110-
.1(e)(3) and (4). 725 ILCS 5/110-6.1(e)(3), (4), 110-10(b) (West 2022); see [CITATION]
IL App (1st) 231753, ¶¶ 15-19. Of course, not every conceivable condition of pretrial release needs
to be addressed by the State to meet its burden under section 110-6.1(e)(3). But the language of
that section shows that the legislature contemplated what conditions would be applicable and
mandated that the State produce evidence and present argument on them.
¶ 26 If the State fails to meet its burden of proof—namely, its burdens of production and
persuasion—under section 110-6.1(e), the presumption that the defendant is eligible for release
stands unrebutted, and the defendant cannot be detained. See 725 ILCS 5/110-6.1(e) (West 2022).
If, on the other hand, the State satisfies its burden, the presumption vanishes. However, detention
in that situation is not automatic, as the ultimate decision of whether a defendant will be released
or detained has now passed squarely into the discretionary power of the circuit court. See, e.g.,
[CITATION], ¶ 13 (holding that “[w]e review for an abuse of discretion the trial court’s ultimate determination regarding pretrial release”).
¶ 27 I disagree with the majority’s conclusion in this case that the State satisfied its burden of
proof on the “conditions” element from section 110-6.1(e)(3). I note initially that the State never
acknowledged the existence of the “conditions” element in its verified petition. 1 Then, at the
[SEGMENT 7]
I do not mention the State’s omission of the “conditions” element from the petition except as
confirmation that the State has presented neither oral nor written evidence on this element of its burden of
proof. In addition, it shows a pattern of the State ignoring that element altogether. However, I am
compelled to address the majority’s comment on what the statute requires the State to include in its
verified petition. The majority notes, “[c]onspicuously absent from the required content of the petition is
any requirement that the State specifically address a nonexhaustive list of conditions that might arguably
be imposed to mitigate a defendant’s real and present threat.” Supra ¶ 12. It is true that the language of
section 110-6.1(d)(1) does not explicitly require any such list. 725 ILCS 5/110-6.1(d)(1) (West 2022). To
the extent the majority might be suggesting that section 110-6.1(d)(1) forecloses inclusion of the
“conditions” element in the verified petition, such is clearly not the case. The statute provides that the
State “shall state the grounds upon which it contends the defendant should be denied pretrial release,
including the real and present threat to the safety of any person or persons or the community, based on the
specific articulable facts or flight risk, as appropriate.” (Emphasis added.) Id. The material following
“including” is obviously a noninclusive list. Additionally, because the State’s burden of proof includes
proving the “conditions” element from section 110-6.1(e)(3) (id. § 110-6.1(e)(3)), it is entirely reasonable
to assume that the State’s petition would contain something about the “conditions” element, as that
hearing, the only comment the State made that could reasonably be construed as relating to the
“conditions” element was as follows:
¶ 28 “Before I even go into the facts of this case, I would like to go into additional grounds why
the defendant should be detained, which is that he is currently on parole through the Illinois
Department of Corrections for possession of a stolen motor vehicle out of Cook County and
aggravated unlawful use of a weapon in Cook County.”
¶ 29 Rather than subjecting the State’s single sentence to meaningful scrutiny, the majority
engages in speculation. First, the majority speculates that Johnson committed the “exact same
dangerous offenses” for which he was on parole. [CITATION]. However, the State did not present
certified copies of Johnson’s convictions into evidence at the hearing or discuss what conditions
were applicable to his MSR. Further, the State did not discuss the circumstances of Johnson’s
convictions. In that regard, I note that the Illinois Department of Corrections’ website states that
Johnson’s convictions were for “AID/ABET/POSS/SELL STOLEN VEH” and “AGG UNLWFL
USE WEAPON/VEH/2ND.” The circumstances of those crimes and Johnson’s role in them is
indiscernible from the Illinois Department of Corrections’ website and from the single-sentence
statement the State made at Johnson’s pretrial detention hearing. That information could have been
relevant to whether any conditions could apply to Johnson’s pretrial release that would mitigate
any risk he posed. There was no evidence presented in this case for the majority to properly
conclude that Johnson engaged in the “exact same dangerous offenses.” [CITATION].
¶ 30 Second, the majority speculates that “it would be entirely unreasonable to conclude he
would comply with electronic home monitoring on pretrial release.” [CITATION]. There was no
element contains part of “the grounds upon which [the State] contends the defendant should be denied
pretrial release” (id. § 110-6.1(d)(1)).
evidence that Johnson was on electronic home monitoring at the time he allegedly committed the
current offenses. Requiring a commonsense level of evidence—which, at a very minimum, the
statutory scheme contemplates—is not unreasonable. In fact, requiring that type of evidence before
arriving at a conclusion like the majority’s is necessitated by the standard of clear and convincing
evidence.
¶ 31 In sum, while it did address Johnson’s criminal history and the facts that led to the charges
in this case, the State never actually addressed whether any condition or combination of conditions
could mitigate the safety or willful-flight risks allegedly posed by Johnson. Because the State failed
to meet its burden under section 110-6.1(e)(3), the statutory presumption in favor of pretrial release
was not rebutted and therefore must prevail.
¶ 32 I write further to note that numerous pretrial release cases issued by this court claim the
State can meet its burden of proof under section 110-6.1(e) merely by producing evidence related
to the factors the circuit court is statutorily mandated to consider under section 110-5 when
considering what conditions should attach to a defendant’s pretrial release. See, e.g., [CITATION]. The primary problem with these cases is that they have resulted in this court
approving the fundamentally flawed approach the State has taken in pretrial-release proceedings.
¶ 33 Generally, as it did in this case, the State uses a preprinted form to file its verified petition
to deny pretrial release. The form lists the crimes from section 110-6.1(a), which are the crimes
for which pretrial release can be denied, and contains either boxes or lines that the State checks
when applicable. The checked boxes and lines clearly correspond to the first element contained in
section 110-6.1(e)(1). 725 ILCS 5/110-6.1(e)(1) (West 2022). Next, the form also contains space
for the factual basis for the petition, which goes to the second element contained in section 110-
.1(e)(2). Id. § 110-6.1(e)(2). However, and again as is the situation in this case, the form generally
does not address the third element contained in section 110-6.1(e)(3) or (4). See supra ¶ 27 n.1.
¶ 34 Next, at the hearing on the petition, the State tends to do little more than recite the factual
basis for the petition. Sometimes, the State addresses matters such as the defendant’s criminal
history or other matters it believes are relevant. However, there is rarely, if ever, an attempt by the
State to present specific evidence or argument on whether any condition or conditions exist that
could mitigate the safety or willful-flight risks a defendant allegedly poses. Certainly, there was
not in this case. This is despite the explicit burden the legislature has placed on the State in section
-6.1(e)(3) and (4) to prove the “conditions” element by clear and convincing evidence. 725
ILCS 5/110-6.1(e)(3), (4) (West 2022).
¶ 35 I reiterate that section 110-6.1(e)(3) and (4) explicitly refers to the partial list of conditions
that appears in section 110-10(b). Id. The legislature has therefore specifically included a roadmap
for the State, yet the State generally does not make any attempt at satisfying its burden on the
“conditions” element. When the State does actually mention this element during pretrial release
hearings, it generally just makes a conclusory statement that no condition or combination of
conditions could mitigate the safety and/or willful-flight risks a defendant allegedly poses, or it
responds only to a specific suggestion made by the defendant’s counsel. Most times, the circuit
court simply enters a general finding agreeing with the State. Then, on appeal, this court tends to
affirm that finding without subjecting it to meaningful scrutiny.
¶ 36 I simply cannot agree with decisions excusing the State’s obligation by claiming that it can
sufficiently meet its burden under section 110-6.1(e)(3) or (4) by presenting evidence potentially
relevant to the factors the circuit court is required to consider when imposing conditions on pretrial
release under section 110-5. Section 110-5 is not referenced in section 110-6.1(e)(3) or (4); section
-10(b) is. Id. The conditions included in section 110-5 are addressed to the circuit court’s
discretion—a factor which does not come into play until the State has successfully met its burden
and rebutted the presumption of eligibility for release. There is no reason to give the State a free
pass on its burden on the “conditions” element, especially because the statutory scheme explicitly
presumes that defendants are eligible for pretrial release.
¶ 37 In this case, the majority presents an overly generalized summary of what section 110-
.1(e) requires and then immediately recasts the statute by referring to section 110-5 ([CITATION] ¶ 13),
as if it were self-evident that section 110-5 relates to the State’s burden under section 110-6.1(e).
Then, when it analyzes whether the circuit court erred in granting the State’s petition to detain, the
majority explicitly uses section 110-5 as support for its decision. [CITATION] ¶ 15. I do not believe the
[SEGMENT 8]
majority’s use of section 110-5 in this manner is compliant with a statute we are duty-bound to
apply. What we ought to be doing is addressing the fact that the State has been ignoring the
“conditions” element generally—and section 110-10(b) specifically—and analyzing what impact
that disregard has for the defendants that come before us.
¶ 38 For the foregoing reasons, I dissent.
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Will County, No. 23-CF-470; the
Hon. Amy Bertani-Tomczak, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Samuel B. Steinberg,
for of State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
2024 IL App (3d) 240046
Opinion filed April 29, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0046
v. ) Circuit No. 21-CF-1219
)
CHARLES D. YOUNG, JR., ) Honorable
) John Connor,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE ALBRECHT delivered the judgment of the court, with opinion.
Justice Holdridge concurred in the judgment and opinion.
Presiding Justice McDade dissented, with opinion.
OPINION
¶1 Defendant, Charles D. Young, Jr., appeals from the Will County circuit court’s order
denying him pretrial release. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 Defendant was indicted on September 16, 2021, with aggravated battery (Class X) (720
ILCS 5/12-3.05(e)(1), (h) (West 2020)), three counts of armed robbery (Class X) (id. § 18-
2(a)(4), (a)(2), (b)), and unlawful possession of a weapon by a felon (Class 3) (id. § 24-1.1(a),
(e)). Defendant’s bail was set at $500,000, but he remained in custody. On January 16, 2024, defendant filed a motion seeking pretrial release. In response, the State filed a verified petition to
deny pretrial release, alleging defendant was charged with a forcible felony, and his release
posed a real and present threat to the safety of any person, persons, or the community under
section 110-6.1(a)(1.5) of the Code of Criminal Procedure of 1963 ([CITATION]).
¶4 The factual basis provided that on August 19, 2021, Cedric Battle and defendant
exchanged text messages setting up a transaction wherein Battle and Darnell Prince would
purchase contraband from defendant. Battle and Prince met up with defendant and co-defendant
Bryan Dantzler, who arrived together in a Ford Explorer. Battle and Prince entered the rear of the
Explorer. Dantzler was identified as the driver of the Explorer, and defendant was identified as
the passenger. After Battle and Prince paid for the contraband, Dantzler and defendant displayed
handguns and demanded the victims’ property. Battle and Prince complied. Defendant struck
Battle and Prince with his firearm, and they were ordered to exit the vehicle. As Prince exited the
vehicle, defendant shot him, striking him in the abdomen. Dantzler and defendant fled the scene.
Prince had severe internal damage, was in critical condition, and required surgery. Officers
obtained Dantzler and defendant’s cellphone records, which revealed them traveling to and from
the location of the incident. In the hours following the incident, defendant sent text messages
about the crime, which included a video from a local news station about the shooting. Defendant
made a statement in a text before the offense that he was going to commit a robbery and shortly
thereafter to the same person that he got $3,000 and two guns. Defendant also made statements
in text messages to various individuals wherein he admitted he “popped” someone and got
cannabis, guns, and money and “bragging that the victims couldn’t say anything ‘or they tell on
they self,’ and that because he took the victims firearms, that probably hurt ‘worse than the shot.’
” When defendant was arrested, officers obtained a search warrant. Pursuant to the warrant,
multiple firearms were recovered. While in custody, defendant was recorded asking if the police
“got all the pipes,” referring to the confiscated firearms.
¶5 The petition further indicated that defendant had a conviction for attempted armed
robbery. When he was on mandatory supervised release (MSR) he committed another offense,
and his MSR was revoked. He was arrested for aggravated assault to a peace officer.
Additionally, he was affiliated with the Black Gangster Disciples street gang.
¶6 A hearing was held on January 18, 2024. The State provided the factual basis as set forth
above. The State stated, “I think that combination of factors shows that he does not appreciate
the seriousness of the offenses he’s charged with and will likely re-offend.” Defendant argued
that electronic monitoring would be a sufficient condition. The court granted the petition, finding
that the State met its burden by clear and convincing evidence. In doing so, the court went
through the statutory factors it was considering. The court said that there were no conditions
“including GPS” that would mitigate the threat defendant posed.
¶7 II. ANALYSIS
¶8 On appeal, defendant argues that the court abused its discretion in granting the State’s
petition as the State failed to prove that no conditions could mitigate any threat he posed. We
consider factual findings for the manifest weight of the evidence, but the ultimate decision to
grant or deny the State’s petition to detain is considered for an abuse of discretion. [CITATION], ¶ 13. Under either standard, we consider whether the court’s
determination is arbitrary or unreasonable. Id.; see also [CITATION], ¶ 19.
¶9 Everyone charged with an offense is eligible for pretrial release, which may only be
denied in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must first file
a verified petition requesting the denial of pretrial release. Id. § 110-6.1. The State then has the
burden of proving by clear and convincing evidence (1) the proof is evident or presumption great
that defendant committed a detainable offense, (2) defendant poses a real and present threat to
any person, persons, or the community or is a flight risk, and (3) no conditions could mitigate
this threat or risk of flight. Id. § 110-6.1(a), (e). Sections 110-5(a) and 110-6.1(g) set forth factors
for the court to consider when determining dangerousness and any conditions. Id. §§ 110-5(a),
-6.1(g).
¶ 10 Here, we cannot say that the court abused its discretion in granting the State’s petition.
The State presented evidence and argument regarding the factors in section 110-5(a), including
the nature and circumstance of the offense. Id. In the petition, the State indicated that defendant
had attempted to commit this offense before and that he had violated his MSR by committing
another offense. The court further found that no conditions, including GPS monitoring, would
mitigate the threat defendant posed. Based on the evidence and argument presented, it was not
against the manifest weight of the evidence for the court to determine that the defendant was thus
unlikely to comply with any conditions of pretrial release. Therefore, the court did not abuse its
discretion in granting the State’s petition.
¶ 11 III. CONCLUSION
¶ 12 The judgment of the circuit court of Will County is affirmed.
¶ 13 Affirmed.
¶ 14 PRESIDING JUSTICE McDADE, dissenting:
¶ 15 The majority has affirmed the circuit court’s decision to grant the State’s petition to deny
Young pretrial release. I would hold that the State failed to meet its burden of proof under section
-6.1(e)(3) and that Young would necessarily have to be admitted to pretrial release despite the
nature of his alleged crimes. Thus, I dissent.
¶ 16 In full, section 110-6.1(e) states:
“(e) Eligibility: All defendants shall be presumed eligible for pretrial
release, and the State shall bear the burden of proving by clear and convincing
evidence that:
(1) the proof is evident or the presumption great that the defendant has
committed an offense listed in subsection (a), and
[SEGMENT 9]
(2) for offenses listed in paragraphs (1) through (7) of subsection (a), the
defendant poses a real and present threat to the safety of any person or persons or
the community, based on the specific articulable facts of the case, by conduct
which may include, but is not limited to, a forcible felony, the obstruction of
justice, intimidation, injury, or abuse as defined by paragraph (1) of Section 103
of the Illinois Domestic Violence Act of 1986, and
(3) no condition or combination of conditions set forth in subsection (b) of
Section 110-10 of this Article can mitigate (i) the real and present threat to the
safety of any person or persons or the community, based on the specific
articulable facts of the case, for offenses listed in paragraphs (1) through (7) of
subsection (a), or (ii) the defendant's willful flight for offenses listed in paragraph
(8) of subsection (a), and
```plaintext
(4) for offenses under subsection (b) of Section 407 of the Illinois
Controlled Substances Act that are subject to paragraph (1) of subsection (a), no
condition or combination of conditions set forth in subsection (b) of Section 110-
of this Article can mitigate the real and present threat to the safety of any
person or persons or the community, based on the specific articulable facts of the
case, and the defendant poses a serious risk to not appear in court as required.”
ILCS 5/110-6.1(e) (West 2022).
While not every subsection may be applicable in any given case, the statute is abundantly clear
that the burden of proving that a defendant should be detained, rather than released, lies with the
State.
¶ 17 “Burden of proof” contains two concepts: a burden of production and a burden of
persuasion. Black’s Law Dictionary 196 (6th ed. 1990). The burden of production is “[t]he
obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.”
Id. The burden of persuasion is “[t]he onus on the party with the burden of proof to convince the
trier of fact of all elements of his case.” Id. In pretrial-release cases, then, when the State opposes
release and seeks detention, it would seem elementary that for the State to meet its legislatively
mandated burden under section 110-6.1(e)(3), it would at a minimum produce evidence and
present argument related to the conditions listed in section 110-10(b) because that section is
explicitly referenced by section 110-6.1(e)(3). 725 ILCS 5/110-6.1(e)(3) (West 2022); see [CITATION]. Of course, not every conceivable condition of
pretrial release would need to be addressed by the State to meet its burden under section 110-
.1(e)(3). But the language of that section shows that the legislature contemplated what conditions
``` would arguably be applicable and mandated that the State produce evidence and present argument
on them.
¶ 18 If the State fails to meet its burden of proof—namely, its burdens of production and
persuasion—under section 110-6.1(e), the presumption that the defendant is eligible for release
stands and the defendant cannot be detained. See id. § 110-6.1(e). If, on the other hand, the State
satisfies its burden, the presumption vanishes. However, detention in that situation is not
automatic, as the ultimate decision of whether a defendant will be released or detained has now
passed squarely into the discretionary power of the circuit court. See, e.g., [CITATION].
¶ 19 In this case, the State’s petition to deny pretrial release was based on sections 110-
.1(a)(1.5) and (6). Accordingly, at the hearing on the petition, the State was required to prove by
clear and convincing evidence, in relevant part, that (1) “the proof is evident or the presumption
great that the defendant has committed an offense listed in subsection (a)” (id. § 110-6.1(e)(1));
(2) “the defendant poses a real and present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the case” (id. § 110-6.1(e)(2)); and (3) “no
condition or combination of conditions set forth in subsection (b) of Section 110-10 of this Article
can mitigate (i) the real and present threat to the safety of any person or persons or the community,
based on the specific articulable facts of the case” (id. § 110-6.1(e)(3)).
¶ 20 At the hearing in this case, the State presented evidence of the circumstances surrounding
the incident leading to the charges that were filed against Young. At no point in the State’s
presentation did it address the third element it was required to prove pursuant to section 110-
.1(e)(3). The State never discussed whether any of the conditions set forth in section 110-10(b)
could mitigate the safety threat Young posed and in fact never even uttered the word “condition.”
Thus, it cannot reasonably be concluded that the State met its burden of proof under section 110-
.1(e)(3) in this case, and the presumption compels his release. Id. § 110-6.1(e).
¶ 21 By affirming the circuit court’s decision to deny pretrial release in this case, the majority
has excused the State from having to meet its legislatively mandated burden of proving by clear
and convincing evidence that “no condition or combination of conditions set forth in subsection
(b) of Section 110-10 of this Article can mitigate (i) the real and present threat to the safety of any
person or persons or the community, based on the specific articulable facts of the case.” Id. § 110-
.1(e)(3). I simply cannot agree with any decision that so obviously undermines the legislature’s
mandate in article 110 of the Act (725 ILCS 5/art. 110 (West 2022).
¶ 22 Unfortunately, the State’s approach in this case is emblematic of its general approach to
pretrial-release cases. A staggering number of cases have come before this court on appeal in which
the State either said nothing about conditions (like this case) or simply stated in a conclusory
fashion, i.e., with no specificity whatsoever pursuant to section 110-10(b) or otherwise, that no
condition or combination of conditions could mitigate the defendant’s safety threat or risk of
willful flight (see, e.g., [CITATION]). Neither of those scenarios is
adequate to satisfy the State’s burden under section 110-6.1(e)(3). It is not self-evident merely
because (1) a crime—even a heinous crime—has likely been committed and (2) if applicable, the
defendant poses a safety threat as defined by statute, that no condition or combination of conditions
exist that could mitigate the defendant’s safety threat if admitted to pretrial release. Id. ¶ 18.
Nevertheless, the State has largely treated pretrial-release cases this way and, largely, this court
has sanctioned the State’s improper approach.
¶ 23 In this regard, I would note that there has been a tendency of late by my colleagues on this
court to issue decisions in pretrial-release cases that claim the State can meet its burden of proof
under section 110-6.1(e) by producing evidence related to the factors the circuit court is statutorily
mandated to consider under section 110-5 when considering what conditions should attach to a
defendant’s pretrial release. See, e.g., [CITATION], ¶¶ 7-8. These decisions reflect a profound
misinterpretation of the pretrial-release statutory scheme.
¶ 24 Section 110-5, which contains a nonexhaustive list of factors the circuit court is required
to consider when imposing conditions of pretrial release, is not referenced at all in section 110-
.1(e). Id. The reason for this should be obvious. Section 110-5, which is titled “Determining the
amount of bail and conditions of release,” only applies after the court has received evidence and
heard arguments on whether a defendant should be detained rather than released; i.e., once the
discretion of the court has been invoked. See id. § 110-5. Language used throughout section 110-
confirms what ought to be obvious about when it applies. Subsection (a) provides factors for the
circuit court to consider when deciding what conditions should apply, if any, to pretrial release.
Id. § 110-5(a). Subsection (b) states that the court “may use a regularly validated risk assessment
tool to aid its determination of appropriate conditions of release.” (Emphasis added.) Id. § 110-
(b). Subsection (c) requires the court to impose conditions that are mandatory under section 110-
(a). Id. § 110-5(c). Other examples exist in the statute as well, but more are unnecessary. It is
abundantly clear that section 110-5 plays no part in the determination of whether the State has met
[SEGMENT 10]
its burden of proof under section 110-6.1(e).
¶ 25 Section 110-5 has been misused with increasing frequency by my colleagues on this court
to infer that the State can meet its burden of proof under section 110-6.1(e) by presenting evidence
that would be related to factors the circuit court must consider under section 110-5 when making
an entirely separate determination. See, e.g., [CITATION].
This case is no different. The majority in this case presents a misleading, overly generalized
summary of what section 110-6.1(e) requires and then immediately refers to section 110-5, as if
that section has something to do with the section 110-6.1(e) determination. Supra ¶ 10. In the next
paragraph, when it analyzes whether the circuit court erred in granting the State’s petition to detain,
the majority then explicitly uses section 110-5 as support for its decision: “[t]he State presented
evidence and argument regarding the factors in section 110-5(a), including the nature and
circumstance of the offense.” Supra ¶ 11. The majority’s use of section 110-5 in this manner is
manifestly incorrect under the law and underscores the erroneous nature of the majority’s decision.
¶ 26 For the foregoing reasons, I dissent.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 240057-U
Order filed April 24, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-24-0057
v. ) Circuit No. 22-CF-977
)
JAMES L. FAINT, ) Honorable
) Vincent F. Cornelius,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAVENPORT delivered the judgment of the court.
Justice Holdridge concurred in the judgment.
Presiding Justice McDade dissented.
____________________________________________________________________________
ORDER
¶1 Held: The trial court did not abuse its discretion in granting the State’s petition to deny
pretrial release.
¶2 Defendant, James L. Faint, appeals the trial court’s decision to deny him pretrial release.
We affirm.
¶3 I. BACKGROUND ¶4 Defendant, James L. Faint, was indicted on July 14, 2022, with unlawful possession of a
weapon by a felon (Class 3) ([CITATION]), two counts of aggravated
unlawful use of a weapon (Class 4) ([CITATION]), and aggravated fleeing or attempting to elude a
peace officer (Class 4) ([CITATION]). Defendant’s bail was set at
$100,000, but he remained in custody. On January 9, 2024, defendant filed a pro se petition
seeking pretrial release. In response, the State filed a verified petition to deny pretrial release,
alleging defendant was charged with a nonprobationable felony, and his release posed a real and
present threat to the safety of any person, persons, or the community under section 110-6.1(a)(1)
of the Code of Criminal Procedure of 1963 ([CITATION]).
¶5 The factual basis provided that on May 8, 2022, officers observed a vehicle traveling at a
speed of 65 miles per hour in a 35 mile per hour speed zone. Defendant was driving the vehicle.
The officers initiated their lights and sirens, and defendant turned and disobeyed a stop sign.
Officers continued to pursue defendant. The officer was driving at a speed of 76 miles per hour to
try to catch defendant, but defendant continued to pull away. The officers lost sight of defendant,
and the pursuit terminated.
¶6 Police received dispatch that a citizen observed a woman run past his house. The woman
was found in the backyard of a house where the residents did not know her. A firearm was
recovered near the woman, and the homeowners confirmed the firearm was not theirs. An officer
spoke to the woman, who told officers she was in the car defendant was driving. Defendant gave
her the weapon and told her to take it when they left the vehicle. The vehicle was found, and
officers located defendant’s identification and cellphone inside. A search warrant was executed on
defendant’s cellphone, which uncovered multiple “selfie” videos from before the pursuit where
defendant was seen holding the firearm recovered. Officers were able to confirm it was the same
firearm as it was unique and had an extended magazine. Defendant was a felon and did not have a
valid firearm owner’s identification (FOID) card. At the time of the offense, defendant was on
bond in another case. Defendant had a prior criminal history which included a 2019 conviction for
theft.
¶7 A hearing was held on January 11, 2024, on this case and defendant’s other pending case.
The State provided the factual basis and argued defendant was a felon, was on bond, and was not
supposed to have guns. The State indicated defendant posed a threat to the community by his
possession of the firearms and stated,
“I don’t think he would obey any lawful orders of the Court, because he has been
given a chance to be put on bond to obey certain conditions of bond. But even more
so, he was convicted and was given rules that he was supposed to follow, and he
doesn’t follow those, allegedly, for three separate occasions.”
The State further said,
“I believe [defendant] has been given a couple chances to be able to show the Court
that he is able to follow conditions of bond, conditions of convictions, and he has
not shown the Court that he would be able to do that. And I think that goes greatly
to the fact that there could be no condition or combination of conditions that would
be able to prevent [defendant] from being a risk to the community.”
Defendant argued he was not a threat and stated that “there was no harm done.” Defendant also
argued there was insufficient evidence that he committed the offenses. Defendant stated that he
would comply with any conditions of pretrial release and indicated he had a family to care for.
While defendant said he had never failed to appear, the State indicated he did have failures to
appear in a previous case.
¶8 The court granted the petition, finding the State met its burden by clear and convincing
evidence. In doing so, the court stated defendant had three pending cases, all of which were
“unlawful use of weapons by a felon” cases, and in all three defendant was on some sort of release,
whether parole or bond. The court further noted defendant was known to possess weapons. The
court said,
“The Court further finds that, given three consecutive possessions of firearm in a
short window of time while in vehicles and while on parole and/or bond, *** there’s
nothing that this Court can think of *** that would mitigate your ability to do that.
I don’t think an electronic home monitor *** restricts your ability to possess
firearms. I don’t think home detention would restrict your ability to possess
firearms.”
¶9 II. ANALYSIS
¶ 10 On appeal, defendant argues the court abused its discretion in granting the State’s petition
“where the State failed to clearly and convincingly prove that [defendant] poses a real and present
safety threat that no conditions could mitigate.” We consider factual findings for the manifest
weight of the evidence, but the ultimate decision to grant or deny the State’s petition to detain is
considered for an abuse of discretion. [CITATION], ¶ 13. Under
either standard, we consider whether the court’s determination is arbitrary or unreasonable. Id.;
see also [CITATION], ¶ 19.
¶ 11 Everyone charged with an offense is eligible for pretrial release, which may only be denied
in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a verified
petition requesting the denial of pretrial release. Id. § 110-6.1. The State then has the burden of
proving by clear and convincing evidence (1) the proof is evident or presumption great that
defendant committed a detainable offense, (2) defendant poses a real and present threat to any
person, persons, or the community or is a flight risk, and (3) no conditions could mitigate this
threat or risk of flight. [CITATION] § 110-6.1(a), (e). Sections 110-5(a) and 110-6.1(g) set forth factors for
the court to consider when determining dangerousness and any conditions. [CITATION] §§ 110-5(a), 110-
.1(g).
¶ 12 We cannot say the court abused its discretion in granting the State’s petition. Defendant
[SEGMENT 11]
continued to possess firearms, though he was a felon and on bond. He also led officers in a high-
speed chase, thus showing that he was dangerous. Moreover, the State presented evidence and
argument regarding the factors in section 110-5(a), including the nature and circumstance of the
offense. [CITATION] The State argued defendant had been on bond and was a felon, did not follow the
conditions placed on him then, and would not comply with any further conditions of the court. The
court further found no conditions would prevent defendant from possessing firearms. Based on the
evidence and argument presented, it was not against the manifest weight of the evidence for the
court to determine the defendant was thus unlikely to comply with any conditions of pretrial
release. Therefore, the court did not abuse its discretion in granting the State’s petition.
¶ 13 III. CONCLUSION
¶ 14 We affirm the judgment of the circuit court of Will County.
¶ 15 Affirmed.
¶ 16 PRESIDING JUSTICE McDADE, dissenting:
¶ 17 The majority has affirmed the circuit court’s decision to grant the State’s petition to deny
Faint pretrial release. I would hold that the State failed to meet its burden of proof under section
-6.1(e)(3) and that Faint would necessarily have to be admitted to pretrial release despite the
nature of his alleged crimes. Thus, I dissent.
Certainly! The given text does not contain any court ruling citations. Therefore, no replacements are needed. Also, I have preserved the formatting as you instructed.
====== Processed Court Ruling ======
¶ 18 In full, section 110-6.1(e) states:
“(e) Eligibility: All defendants shall be presumed eligible for pretrial
release, and the State shall bear the burden of proving by clear and convincing
evidence that:
(1) the proof is evident or the presumption great that the defendant has
committed an offense listed in subsection (a), and
(2) for offenses listed in paragraphs (1) through (7) of subsection (a), the
defendant poses a real and present threat to the safety of any person or persons or
the community, based on the specific articulable facts of the case, by conduct
which may include, but is not limited to, a forcible felony, the obstruction of
justice, intimidation, injury, or abuse as defined by paragraph (1) of Section 103
of the Illinois Domestic Violence Act of 1986, and
(3) no condition or combination of conditions set forth in subsection (b) of
Section 110-10 of this Article can mitigate (i) the real and present threat to the
safety of any person or persons or the community, based on the specific
articulable facts of the case, for offenses listed in paragraphs (1) through (7) of
subsection (a), or (ii) the defendant’s willful flight for offenses listed in paragraph
(8) of subsection (a), and
(4) for offenses under subsection (b) of Section 407 of the Illinois
Controlled Substances Act that are subject to paragraph (1) of subsection (a), no
condition or combination of conditions set forth in subsection (b) of Section 110-
of this Article can mitigate the real and present threat to the safety of any
person or persons or the community, based on the specific articulable facts of the
case, and the defendant poses a serious risk to not appear in court as required.”
ILCS 5/110-6.1(e) (West 2022).
While not every subsection of section 110-6.1(e) may be applicable in any given case, the statute
is abundantly clear that the burden of proving that a defendant should be detained, rather than
released, lies with the State.
¶ 19 “Burden of proof” contains two concepts: a burden of production and a burden of
persuasion. Black’s Law Dictionary 196 (6th ed. 1990). The burden of production is “[t]he
obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.”
Id. The burden of persuasion is “[t]he onus on the party with the burden of proof to convince the
trier of fact of all elements of his case.” Id. In pretrial-release cases, then, when the State opposes
release and seeks detention, it would seem elementary that for the State to meet its legislatively
mandated burden under section 110-6.1(e)(3), it would at a minimum produce evidence and
present argument related to the conditions listed in section 110-10(b) because that section is
explicitly referenced by section 110-6.1(e)(3). 725 ILCS 5/110-6.1(e)(3) (West 2022); see [CITATION]. Of course, not every conceivable condition of
pretrial release would need to be addressed by the State to meet its burden under section 110-
.1(e)(3). But the language of that section shows that the legislature contemplated what conditions
would arguably be applicable and mandated that the State produce evidence and present argument
on them.
¶ 20 If the State fails to meet its burden of proof—namely, its burdens of production and
persuasion—under section 110-6.1(e), the presumption that the defendant is eligible for release
stands and the defendant cannot be detained. See 725 ILCS 5/110-6.1(e) (West 2022). If, on the
other hand, the State satisfies its burden, the presumption vanishes. However, detention in that
situation is not automatic, as the ultimate decision of whether a defendant will be released or
detained has now passed squarely into the discretionary power of the circuit court. See, e.g., [CITATION]
¶ 13 (holding that “[w]e review for an abuse of discretion
the trial court’s ultimate determination regarding pretrial release”).
¶ 21 In this case, the State’s petition to deny pretrial release was based on sections 110-6.1(a)(1),
(6), and (8). Regarding subsections (a)(1) and (a)(6), the State was therefore required to prove by
clear and convincing evidence, in relevant part, that (1) “the proof is evident or the presumption
great that the defendant has committed an offense listed in subsection (a)” (725 ILCS 5/110-
.1(e)(1) (West 2022)); (2) “the defendant poses a real and present threat to the safety of any person
or persons or the community, based on the specific articulable facts of the case” (id. § 110-
.1(e)(2)); and (3) “no condition or combination of conditions set forth in subsection (b) of Section
-10 of this Article can mitigate (i) the real and present threat to the safety of any person or
persons or the community, based on the specific articulable facts of the case” (id. § 110-6.1(e)(3)).
¶ 22 At the hearing in this case, the State presented evidence of the circumstances surrounding
the incident leading to the charges that were filed against Faint. The State emphasized that Faint
was out on bond at the time he committed the alleged offenses and that one condition of his bond
was a prohibition on possessing firearms. Because Faint violated that condition, the State
continued, he was not likely to abide by any conditions such that no conditions could mitigate the
safety risk he posed.
¶ 23 As I stated above, I believe that to meet its burden of proof under section 110-6.1(e)(3),
the State ought to address, at a minimum, the conditions explicitly listed in section 110-10(b).
Supra ¶ 19. Here, while the State did address one of those conditions—a prohibition on possessing
firearms (id. § 110-10(b)(2))—it was an unsubstantiated leap for the State to conclude that the
```plaintext
failure of Faint to abide by one condition meant that he would not follow any conditions and that
no conditions therefore could mitigate the safety threat he posed. The State cannot meet its burden
of proof under section 110-6.1(e)(3) by addressing only one of the conditions listed in section 110-
(b), and it certainly cannot persuasively conclude, without more, that the failure to abide by one
condition means Faint would not abide by any conditions. Accordingly, under these circumstances,
I would hold that the State failed to meet its burden of proof under section 110-6.1(e)(3) regarding
its claims that subsections 110-6.1(a)(1) and (6) compelled his detention.
¶ 24 In this regard, I would note that there has been a tendency of late by my colleagues on this
court to issue decisions in pretrial-release cases that claim the State can meet its burden of proof
under section 110-6.1(e) by producing evidence related to the factors the circuit court is statutorily
mandated to consider under section 110-5 when considering what conditions should attach to a
defendant’s pretrial release. See, e.g., [CITATION], ¶¶ 7-8. These decisions reflect a profound misinterpretation of the pretrial-release
[SEGMENT 12]
statutory scheme.
¶ 25 Section 110-5, which contains a nonexhaustive list of factors the circuit court is required
to consider when imposing conditions of pretrial release (725 ILCS 5/110-5 (West 2022)), is not
referenced at all in section 110-6.1(e) (id. § 110-6.1(e)). The reason for this should be obvious.
Section 110-5, which is titled “Determining the amount of bail and conditions of release,” only
applies after the court has received evidence and heard arguments on whether a defendant should
be detained rather than released; i.e., once the discretion of the court has been invoked. See id.
§ 110-5. Language used throughout section 110-5 confirms what ought to be obvious about when
it applies. Subsection (a) provides factors for the circuit court to consider when deciding what
``` ```plaintext
conditions should apply, if any, to pretrial release. Id. § 110-5(a). Subsection (b) states that the
court “may use a regularly validated risk assessment tool to aid its determination of appropriate
conditions of release.” (Emphasis added.) Id. § 110-5(b). Subsection (c) requires the court to
impose conditions that are mandatory under section 110-10(a). Id. § 110-5(c). Other examples
exist in the statute as well, but more are unnecessary. It is abundantly clear that section 110-5 plays
no part in the determination of whether the State has met its burden of proof under section 110-
.1(e).
¶ 26 Section 110-5 has been misused with increasing frequency by my colleagues on this court
to infer that the State can meet its burden of proof under section 110-6.1(e) by presenting evidence
that would be related to factors the circuit court must consider under section 110-5 when making
an entirely separate determination. See, e.g., [CITATION].
This case is no different. The majority in this case presents a misleading, overly generalized
summary of what section 110-6.1(e) requires and then immediately refers to section 110-5, as if
that section has something to do with the section 110-6.1(e) determination. Supra ¶ 11. In the next
paragraph, when it analyzes whether the circuit court erred in granting the State’s petition to detain,
the majority then explicitly uses section 110-5 as support for its decision: “the State presented
evidence and argument regarding the factors in section 110-5(a), including the nature and
circumstance of the offense.” Supra ¶ 12. The majority’s use of section 110-5 in this manner is
manifestly incorrect under the law and underscores the erroneous nature of the majority’s decision.
¶ 27 I note that while the State also sought detention pursuant to section 110-6.1(a)(8), the
circuit court explicitly stated that it was not making any finding under the willful-flight standard.
Thus, the section 110-6.1(a)(8) allegation cannot serve as a basis for detaining Faint in this case.
``` ¶ 28 In sum, because the State failed to meet its burden of proof under section 110-6.1(e)(3),
the statutory presumption in favor of release was not rebutted. Thus, Faint should have been
released.
¶ 29 For the foregoing reasons, I dissent.
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
2024 IL App (3d) 230791
Opinion filed April 11, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2024
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-23-0791
v. ) Circuit No. 23-CF-2213
)
CHRISTIAN P. MIKOLAITIS, ) The Honorable
) Margaret M. O’Connell,
Defendant-Appellant. ) Judge, presiding.
____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justice Brennan specially concurred in the judgment, with opinion.
Presiding Justice McDade dissented, with opinion.
OPINION
¶1 The defendant, Christian P. Mikolaitis, appeals from the circuit court of Will County’s
order denying pretrial release, arguing the State failed to prove by clear and convincing evidence
that no condition or combination of conditions could mitigate any threat he posed.
¶2 I. BACKGROUND
On December 12, 2023, the defendant was charged with attempted first degree murder
(Class X) (720 ILCS 5/8-4(a), 9-1(a)(2) (West 2022)) and aggravated battery (id. § 12-3.05(f)(1),
(h)). The State filed a verified petition to deny pretrial release, alleging defendant was charged
with a forcible felony, and his release posed a real and present threat to the safety of any person,
persons, or the community under section 110-6.1(a)(1) of the Code of Criminal Procedure of 1963
(725 ILCS 5/110-6.1(a)(1) (West 2022)).
¶3 The factual basis provided that on December 10, 2023, at 8:30 p.m. officers responded to
Challenge Fitness for a victim, Alec Geibel, who had been stabbed multiple times. Geibel was
taken to Silver Cross Hospital and was subsequently transported to Chicago as a trauma transport.
He gave a brief statement while at Silver Cross, stating that the defendant stabbed him and was
driving a gray Hyundai Elantra with red trim. At 10:49 p.m. the defendant’s mother called 911 and
stated that the defendant told her he had stabbed Geibel and provided a description of the car. At
12:39 a.m. the defendant’s girlfriend called 911 and stated that she had met the defendant at a gas
station, and he told her he had stabbed someone and provided details on how he did it. She further
stated that the defendant had picked up Geibel, who was going to buy Percocet from the defendant.
The defendant parked the car, pretended to look for his phone in the back seat, opened the
passenger door, and stabbed Geibel multiple times. He then left Geibel and drove away. The
defendant also told his girlfriend that he hated Geibel. The defendant was apprehended at 1:31
a.m. in the vehicle described by Geibel and the defendant’s mother. The front passenger seat had
knife punctures.
¶4 A pretrial risk assessment was completed, but because the defendant declined to
participate, it included limited information. The criminal history indicated that the defendant had
a pending case for failing to notify of a damaged or unattended vehicle.
¶5 A hearing was held on the petition on December 18, 2023. The State discussed some of the
factors that applied to the case, including (1) it was a violent offense, (2) Geibel was a specific
person to whom the defendant posed a threat, (3) the defendant told people what happened, and
2
(4) the defendant had access to and possessed a weapon, being a knife. The State argued that if the
defendant was released, Geibel’s safety would be at risk. Defense counsel asked for the defendant
to be placed on electronic monitoring, noting that he was 19 years old and had received mental
health treatment for depression, anxiety, and bipolar disorder. The circuit court asked whether the
defendant was currently taking his antipsychotic medicine, to which he said no. Defense counsel
indicated that the last time the defendant took his medication was in September when he “had an
admission for mental health.”
¶6 The court granted the State’s petition, finding that the proof was evident that the defendant
committed a detainable offense and that he posed a real and present threat to the safety of Geibel.
The court also found that there were no conditions that could mitigate the threat the defendant
posed, stating,
“I understand the concept of mental illness, but it does not appear as if the defendant was
taking his medicine which was previously prescribed to him in order to combat his
antipsychotic behavior along with his bipolar, so that is a greater concern to me and it
certainly poses a question as to whether or not he would be in a position where he could
abide by the conditions of pretrial release.”
¶7 II. ANALYSIS
¶8 On appeal, the defendant argues that the State failed to show by clear and convincing
evidence that no condition or combination of conditions could mitigate any threat he posed. We
review a circuit court’s factual findings in pretrial release cases under the manifest weight of the
evidence standard, but the court’s ultimate decision to grant or deny the State’s petition to detain
is considered for an abuse of discretion. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. Under
either standard, we consider whether the court’s determination is arbitrary or unreasonable. Id.;
3
see also People v. Horne, 2023 IL App (2d) 230382, ¶ 19. We review issues of statutory
construction de novo. People v. Taylor, 2023 IL 128316, ¶ 45.
¶9 Every person charged with an offense is eligible for pretrial release, which may only be
denied in certain situations. 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State must file a
verified petition requesting the denial of pretrial release. Id. § 110-6.1(a). The State then has the
burden of proving by clear and convincing evidence that (1) the proof is evident or presumption
great that the defendant committed a detainable offense, (2) the defendant poses a real and present
threat to any person, persons, or the community, or has a high likelihood of willful flight to avoid
prosecution, and (3) no conditions could mitigate either the defendant’s dangerousness or risk of
flight. Id. § 110-6.1(a), (e). 1 When determining a defendant’s dangerousness and the conditions of
release, the statute includes a nonexhaustive list of factors the court can consider. Id. §§ 110-6.1(g),
110-5. Section 110-10 provides a nonexclusive list of conditions that can be applied to individuals
placed on pretrial release. Id. § 110-10.
¶ 19 Section 110-6.1(g) indicates that the court, when determining dangerousness, should
consider evidence the State presented that applies to a certain set of factors. Id. § 110-6.1(g).
Likewise, section 110-5(a) states that the court shall consider a set of factors when determining
which conditions of pretrial release, if any, would ensure his appearance or mitigate his
dangerousness. Id. § 110-5(a). The section specifically states that the court shall consider these
factors based on the available information, thus indicating that the State shall present evidence
supporting these factors. Id.
1
While the dissent says we “misstate the law” of section 110-6.1(e)(2), this statement of law is a
clear summary of the State’s requirements under the entirety of section 110-6.1, considering both
subsections (a) and (e). It is thus the dissent who misconstrues this paragraph.
4
¶ 10 The dissent’s reading of the statute would require the State to present argument as to each
one of the potential conditions and why it should not apply to the defendant. However, the factors
set forth in section 110-5 provide the evidentiary corollary to the potential conditions of release.
For example, the State’s presentation of evidence that the defendant was on probation, parole, or
pretrial release at the time of the offense (id. § 110-5(a)(3)(B)) provides the evidentiary support
for the court’s finding that the defendant could not comply with the conditions that he abide by the
law and the orders of the court (id. § 110-10(a)(2), (4)). It is unclear what evidence the dissent
would require the State to present to meet its burden as to the conditions of release.
¶ 11 Here, the State provided argument and evidence regarding the factors set forth in section
110-5. Id. § 110-5. Moreover, defense counsel indicated to the court that the defendant had mental
health issues and had been prescribed medication. When the court inquired into the medication,
the defendant indicated that he was not taking his prescribed medication and counsel stated that he
had not been taking it since he was admitted to a mental health facility in September. The court
did not err in finding that the defendant’s failure to abide by his doctor’s directives indicated that
he would not follow the conditions placed on him by the court. Therefore, the court did not abuse
its discretion in granting the petition.
¶ 12 III. CONCLUSION
¶ 13 The judgment of the circuit court of Will County is affirmed.
¶ 14 Affirmed.
¶ 15 JUSTICE BRENNAN, specially concurring:
¶ 16 I write to emphasize my disagreement with the dissent’s suggestion that the Code obligates
the State to argue or prove why each condition or combination of conditions set forth in section
110-10(b) cannot mitigate the threat a defendant poses to a particular victim. Indeed, the
5
unworkability of such a requirement is laid bare when one considers that the section 110-10(b)
conditions are not even an exhaustive list of possible conditions. 725 ILCS 5/110-10(b)(9) (West
2022) (allowing court to also require “such other reasonable conditions as the court may
impose[.]”).
¶ 17 Section 110-6.1(d)(1) prescribes the contents of the State’s petition, requiring that “[t]he
petition shall be verified by the State and shall state the grounds upon which it contends the
defendant should be denied pretrial release, including the real and present threat to the safety of
any person or persons or the community, based on the specific and articulable facts or flight risk,
as appropriate.” Id. § 6.1(d)(1). Conspicuously absent from the required content of the petition is
any requirement that the State specifically address a non-exhaustive list of conditions that might
arguably be imposed to mitigate a defendant’s real and present threat.
¶ 18 Where a defendant’s danger is proven by clear and convincing evidence, the Code does, of
course, likewise require the State to prove by clear and convincing evidence that no condition or
combination of conditions can mitigate the threat. Id. § 6.1(e)(3). This burden, however, can be
satisfied in a variety of ways: from the presentation of evidence to be sure, but also by common
sense consideration of the factors listed in section 110-5(a)(1)-(7), including the nature of the
offense, the strength of the case, the defendant’s mental condition, the defendant’s criminal history,
the defendant’s compliance with MSR or probation, and several others. The State’s burden does
not obligate it to specifically address the efficacy of every conceivable condition or combination
of conditions. Rather, it is the trial court that must ultimately consider all it has heard and, if
ordering detention, make written findings explaining “why less restrictive conditions would not
avoid a real and present threat to the safety or any person or persons or the community.” Id. §
6.1(h).
6
¶ 19 In the instant case, defendant blindsided the victim with a horrific knife attack because, in
the defendant’s own words, he “hated” the victim. Defendant refused to cooperate with his pretrial
risk assessment. To the extent defendant’s mental health issues may have played some role in the
attack, this in no way supports that some condition or conditions short of detention would mitigate
the threat he poses to the victim. To the contrary, defendant’s non-compliance with his
psychotropic medication regimen supports the opposite inference. Simply put, the trial court’s
detention decision was based upon a sufficient quantum of information and was anything but
fanciful.
¶ 20 PRESIDING JUSTICE McDADE, dissenting:
¶ 21 By affirming the circuit court’s detention decision in this case, the majority has excused
the State from having to meet its legislatively mandated burden of proving by clear and convincing
evidence that
“no condition or combination of conditions set forth in subsection (b) of Section 110-10 of
this Article can mitigate (i) the real and present threat to the safety of any person or persons
or the community, based on the specific articulable facts of the case, for offenses listed in
paragraphs (1) through (7) of subsection (a), or (ii) the defendant's willful flight for offenses
listed in paragraph (8) of subsection (a).” 725 ILCS 5/110-6.1(e)(3) (West Supp. 2023).
Accordingly, I dissent from the majority’s decision to affirm the circuit court’s detention order.
¶ 22 Initially, I note that the majority has misstated the law contained in section 110-6.1(e). The
majority maintains that under section 110-6.1(e)(2), the State must prove that “the defendant poses
a real and present threat to any person, persons, or the community or had a high likelihood of
willful flight to avoid prosecution.” Supra ¶ 9. However, “willful flight to avoid prosecution” is
not a phrase that appears in section 110-6.1(e)(2). 725 ILCS 5/110-6.1(e)(2) (West Supp. 2023).
7
That section only applies when the State has sought detention for offenses listed in section 110-
6.1(a)(1) through (7), i.e., only when the accused allegedly poses a safety risk. Id. In addition, the
majority inaccurately summarizes the State’s burden on the conditions element from section 110-
6.1(e)(3). Supra ¶ 18. I have quoted that section above and do not need to repeat it here.
¶ 23 Turning to the merits, it is important in this case to differentiate between sections 110-5
and 110-10 of the Code. Section 110-5 provides guidance for the court when considering whether
conditions exist that would, in part, “reasonably ensure the appearance of a defendant as required
or the safety of any other person or the community.” 725 ILCS 5/110-5(a) (West Supp. 2023).
That section provides a nonexhaustive list of factors that are relevant to the court’s decision,
including “the nature and circumstances of the offense charged” (id. § 110-5(a)(1)) and “the history
and characteristics of the defendant” (id. § 110-5(a)(3)). Section 110-5 also directs the court to
take specific actions in certain circumstances. See, e.g., id. § 110-5(c) (directing the court, if a
defendant is to be admitted to pretrial release, to impose any conditions mandated by section 110-
10 of the Code).
¶ 24 In contrast to section 110-5, section 110-10 addresses the actual conditions that can be
imposed on pretrial release. Id. § 110-10. For example, section 110-10(a) addresses conditions that
must be imposed if a defendant is admitted to pretrial release. Id. § 110-10(a). Section 110-10(b)
includes a nonexhaustive list of conditions that can be imposed, such as requiring a defendant to
obtain leave of court before departing the State (id. § 110-10(b)(0.05)) and prohibiting a defendant
from possessing firearms or other dangerous weapons and from going to certain geographic areas
or premises (id. §§ 110-10(b)(2), (4)).
¶ 25 The distinction between sections 110-5 and 110-10 is important because the State’s explicit
burden under section 110-6.1(e)(3) of the Code is that it must establish by clear and convincing
8
evidence, in relevant part, that “no condition or combination of conditions set forth in subsection
(b) of section 110-10 can mitigate” either the safety risk the defendant poses or the risk of his or
her “willful flight,” depending on the basis for the State’s detention request. Id. It would seem
elementary, then, that for the State to meet its legislatively mandated burden under section 110-
6.1(e)(3), it would address at a very minimum the conditions explicitly listed in section 110-10(b).
See, e.g., People v. Stock, 2023 IL App (1st) 231753, ¶¶ 15-19. Of course, not every conceivable
condition needs to be addressed by the State to meet its burden under section 110-6.1(e)(3). But
the language of that section shows that the legislature contemplated what conditions would
arguably be applicable and mandated that the State present evidence and argument on them. The
plain language of section 110-6.1(e)(3) makes it clear that the State cannot meet its burden under
section 110-6.1(e)(3) by merely presenting evidence relevant to the factors the court is required to
consider under section 110-5 when reaching its ultimate pretrial release decision. Id.
¶ 26 Whether the procedure mandated by section 110-6.1(e) is considered by the special
concurrence to be unworkable is irrelevant. It is also a curious position because the procedure is
essentially analogous to what transpires every day in criminal court—that is, a criminal defendant
is presumed innocent; the State has a mandated burden so it presents evidence to satisfy that
burden; if it fails to do so, the presumption prevails. In a pretrial release case such as this one, if
the State satisfies its burden, the court can assess all factors available to it; it can fashion a novel
or unique condition outside of the nonexhaustive list and still release the defendant on specific
terms or it can deny release altogether. But it can only do so if the State first meets its burden of
proof. This hardly seems unworkable—unless one just wants to ignore the statute and write his or
her own law.
9
¶ 27 In this case, the State presented no evidence regarding any condition or combination of
conditions that could mitigate the safety threat posed by Mikolaitis. Even though it may have
presented evidence relevant to the factors the court is required to consider under section 110-5, the
State could not meet its burden under section 110-6.1(e)(3) by presenting nothing more than that
evidence. Because the State failed to present any evidence related to its burden under section 110-
6.1(e)(3), it has failed to meet its burden and has essentially conceded that there are adequate
conditions. Mikolaitis’s argument on appeal is meritorious. The statutory presumption favoring
pretrial release has not been rebutted and Mikolaitis cannot be detained, despite the horrific nature
of the offense and the statutorily defined threat he poses. Accordingly, I would reverse the circuit
court’s decision and order the defendant’s release.
10
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"1",
"2",
"4",
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"9",
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Law
9958644
[SEGMENT 1]
2024 IL App (5th) 240448-U
NOTICE
NOTICE
Decision filed 06/21/24. The
This order was filed under
text of this decision may be NOS. 5-24-0448, 5-24-0449, 5-24-0450 cons.
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) Nos. 24-CF-311, 24-CF-315,
)
-CF-316
MICHAEL A. BARRETT, )
) Honorable Brett N. Olmstead,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court.
Justices McHaney and Sholar concurred in the judgment.
ORDER
¶1 Held: The trial court’s orders granting the State’s petitions to deny pretrial release are
affirmed where the trial court’s findings were not against the manifest weight of
the evidence and the orders denying pretrial release were not an abuse of discretion.
¶2 Defendant appeals the trial court’s orders denying his pretrial release pursuant to Public
Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability,
Fairness and Equity-Today (SAFE-T) Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023);
[CITATION], ¶ 52 (lifting stay and setting effective date as September 18,
2023). For the following reasons we affirm the trial court’s orders.
¶3 I. BACKGROUND
¶4 On March 12, 2024, defendant was charged, by information, in case No. 24-CF-311, with
violating an order of protection on February 20, 2024, in violation of section 12-3.4(a) of the Criminal Code of 2012 (Code) (720 ILCS 5/12-3.4(a) (West 2022)), a Class 4 felony, due to a
prior violation of an order of protection in case No. [CITATION]. The State filed a verified petition
to deny pretrial release the same day and defendant was given notice to appear in court on March
13, 2024. Defendant failed to appear. A warrant for his arrest was issued on March 13, 2024, and
he was arrested later that day.
¶5 On March 14, 2024, defendant was charged, by information, in case No. [CITATION], with
one count of aggravated domestic battery occurring on February 15, 2024, in violation of sections
12-3.2(a)(1) and 12-3.3(a-5) of the Code (id. §§ 12-3.2(a)(1), 12-3.3(a-5)), a Class 2 felony, in that
defendant strangled the same victim in case No. [CITATION]. Defendant was also charged with a
second count of aggravated battery occurring on the same date, in violation of section 12-3.2(a)(1)
of the Code (id. § 12-3.2(a)(1)), also a Class 2 felony, in that defendant struck the same victim in
the face. The information for count II further stated defendant had four prior convictions for
domestic battery in case Nos. [CITATION], and [CITATION]. The State
filed a verified petition to deny pretrial release the same day.
¶6 On March 14, 2024, defendant was also charged, by information, in case No. [CITATION],
with residential burglary occurring on March 5, 2024, in violation of section 19-3 of the Code (id.
§ 19-3), a Class 1 felony. The offense was related to the residence of a different victim. The State
filed a verified petition to deny pretrial release the same day.
¶7 Defendant’s first appearance was held on March 14, 2024, in each of the three cases. At
that time, counsel was appointed and the hearings on the State’s petitions to deny pretrial release
were continued to March 15, 2024.
¶8 A pretrial investigation report was filed in case No. [CITATION] on March 14, 2024. The
report indicated that defendant was 47 years old and lived at the Champaign homeless shelter for
====== approximately six months. He previously lived in Rantoul, Illinois, with a friend for about two
years. He had no children but had siblings in the area and advised that he could take the bus to
attend future court hearings. He had some college education. He was currently unemployed but
was looking for employment. He reported a history of drug abuse and requested outpatient
treatment. He also reported mental health issues, including depression and anxiety, but was neither
taking medication nor receiving treatment, for either. He also advised of medical issues related to
his heart but had not started his medications. Defendant was currently under pretrial supervision
in Champaign County case No. 23-CF-1636. He tested positive for amphetamine and
methamphetamine on January 24, 2024, in drug testing taken pursuant to the pretrial supervision.
¶9 The Virginia Pretrial Risk Assessment Instrument-Revised (VPRAI-R) classified
defendant as a 13 out of 14 on the scale that equated to a level six (out of six) or 37.1% risk for
recidivism if released pretrial. In addition to the charges filed in March 2024, the pretrial
investigation report revealed pending charges for possession of methamphetamine less than five
grams and possession of controlled substance. His criminal history included five convictions for
domestic battery (2017, 2014, 2006, 2005, and 2001), three convictions for driving on a suspended
license (one conviction in 2009 and two convictions in 2008), two convictions for burglary (2010
and 2002), and convictions for bad check writing (2021), phone harassment/threaten to kill (2008),
possession of cannabis (2006), violation of an order of protection (1998), and theft less than $300
(1996).
¶ 10 The trial court proceeded on the State’s three petitions in a consolidated hearing held on
March 15, 2024. When the case was first called, the State and defense counsel advised the court
that there was a waiver and defendant agreed to remain in jail. However, defendant disagreed with
counsel’s statement and thereafter, defense counsel requested a continuance to address the matter
again with defendant. The case was reset for later that afternoon. At that time, counsel confirmed
that she spoke with her client. When defendant was questioned about the interaction, he stated,
“Me and my Public Defender came to no agreement about anything. I ended up hanging the phone
up on her, your Honor.” The court advised it would proceed with the hearing.
¶ 11 The State indicated that it would be providing a proffer for each case and started with case
No. 24-CF-316. It advised the court that defendant had several prior domestic battery convictions
as indicated in the pretrial services report. Specifically, case Nos. [CITATION],
and [CITATION] were all convictions for domestic battery with a prior and defendant was
sentenced to the Illinois Department of Corrections (IDOC) in each of those cases. He was also
sentenced to IDOC for telephone harassment in case No. [CITATION] and burglary in case No. [CITATION].
¶ 12 As to the facts underlying case No. 24-CF-316, the State proffered that on March 5, 2024,
University of Illinois police responded to Phi Gamma Delta for a burglary. The victim advised that
he left his backpack in the living room, and it was now gone. Video was reviewed and showed an
unknown white male entering the fraternity house and grabbing two backpacks in the house. The
backpacks contained a computer, mouse, and notebooks. Once the man had the backpacks, he
exited the house. Officers showed the photo of the unknown man to people in the community and
Champaign-Urbana Mass Transit District terminal staff recognized the person in the photo to be
defendant and called police when defendant was at the terminal. Defendant was wearing the same
hoodie seen in the video and admitted to entering the fraternity house. He advised police that he
was forced to take the items.
¶ 13 Defense counsel stated that defendant advised her that he had bad heart issues. She further
indicated that she had nothing further to add to the factual presentation.
¶ 14 The State argued that defendant was not in compliance with pretrial release issued in case
No. [CITATION], which included not committing further offenses, yet defendant continued to
[SEGMENT 2]
commit offenses. The State further argued that defendant had a very long criminal history that
included numerous violent offenses as well as new violent offenses occurring during pretrial
release. The State argued that defendant was dangerous for those reasons as well as his inability to
comply with court orders and therefore there were no conditions the court could impose that would
prevent defendant from committing new offenses. No argument was presented by defense counsel
beyond defendant’s heart condition.
¶ 15 The trial court found the State proved by clear and convincing evidence that the proof was
evident and the presumption great that defendant committed a detainable offense, and no condition
or combination of conditions would mitigate the real and present threat or defendant’s willful
flight. The court found defendant posed a real and present threat to the safety of the community,
noting that defendant admitted going into the fraternity house. The court also noted the pretrial
investigatory report that classified defendant with a VPRAI-R of 13 out of 14 and placed defendant
at the highest possible risk level and “that was understandable given the extensive nature of
defendant’s criminal history.” The court also noted that defendant was under court supervision
when the charge was brought as well as additional pending charges when the incident occurred,
was unemployed, and had a history of substance abuse. The court found that based on that
information, defendant was a danger to the community, had a high likelihood of willful flight, and
that no condition, or combination of conditions, would mitigate the danger defendant posed.
¶ 16 The State then issued its proffer regarding case No. [CITATION]. It asked the court to again
consider the IDOC sentences in the prior domestic battery cases previously mentioned. The State
proffered that on February 5, 2024, that Urbana police officers responded to a domestic situation
Sure, I will process the content you provided to replace court ruling citations with the appropriate tags. However, in the excerpt you provided, there are no explicit court ruling citations to process. If you have other text sections or require further assistance, please provide those. The content provided will remain unchanged as no citations are detected. found the State met its burden, granted its petition to deny pretrial release, and ordered defendant
detained. A no contact order was also issued with regard to the victim.
¶ 18 As to case No. 24-CF-311, the State again asked the court to note the facts related to
defendant’s prior IDOC sentences as well as its presentation in case No. 24-CF-316. As to case
No. 24-CF-311, the State proffered that the incident occurred on February 20, 2024, at the
Marketplace Mall in Champaign, Illinois. On that date, police were dispatched to the mall
regarding a reported violation of an order of protection. The underlying order of protection was
issued in Champaign County case No. 24-OP-134 and involved the same victim as that seen in
case No. 24-CF-316. The victim was at the mall when she began receiving text messages from
defendant. The text messages referenced that defendant could see her and contained threats to her,
as well as her family. The text messages were recorded on an officer’s body-worn camera. The
police located defendant on the east side of the mall parking lot. Defendant admitted being in the
mall earlier and having knowledge of the order of protection but denied contacting the victim.
Defendant was not arrested at the scene because he stated that he was having chest pains and was
transported to the hospital. Defense counsel declined the opportunity to present any factual proffer.
¶ 19 The State argued that defendant had a long history of domestic violence, including
numerous prior convictions and sentences at IDOC for the offense. The State argued that the text
messages contained a threat to the victim and her family. Defendant admitted to knowing about
the order of protection and made statements to the police officer showing his awareness that he
was not to have any contact with the victim. Although defendant denied sending the text messages,
the messages were recorded on the officer’s body-worn camera video. The State argued that GPS
would not prevent any further messaging and defendant was actually near the victim when the
threats were sent and presented a viable threat of harm. The State also argued that GPS did not
address the fact that it occurred in a public place at the mall and that defendant was on pretrial
release at the time the messages were sent. The State argued that because the pretrial release
prohibited defendant from committing additional offenses, but he did so anyway, no condition of
pretrial release would prevent this from happening. The State argued that defendant was a danger
to the victim and others in the community and therefore should be detained. No argument was
presented by defense counsel.
¶ 20 The court found the State proved by clear and convincing evidence that the proof was
evident or the presumption great that defendant committed a detainable offense and that no
condition or combination of conditions could mitigate the real and present threat or willful flight.
The court found defendant committed an offense that was detainable and posed a real and present
threat to the safety of the people of the community as well as the victim, who was protected by
court order and by other orders prohibiting defendant’s contact.
¶ 21 The court found the proof evident and presumption great that defendant made contact with
the victim while she was at the mall by text message and was aware that he could not do this as a
condition of his pretrial release. The court referred to the VPRAI-R which classified defendant at
the highest possible risk, defendant’s numerous pending cases, as well as his prior convictions for
residential burglary and domestic abuse, noting that some charges stemmed from an incident
involving the same victim, and occurred in a relatively short period of time. The court granted the
State’s petition to deny pretrial release and ordered defendant detained. A no contact order was
also issued for the victim in this case.
¶ 22 Following the hearing, the trial court issued three orders finding defendant committed a
detainable offense. In support for case No. 24-CF-316, the order stated:
“Defendant entered a residential building and stole equipment. Defendant confessed, but
claimed he stole the items under duress.”
The trial court’s order also found defendant posed a real and present threat and no condition or
combination of conditions could mitigate defendant’s dangerousness. In support, the order stated,
“He scores on the highest risk level in pretrial services report.”
¶ 23 The second order, issued in case No. 24-CF-315, stated the following:
“February 2024—boyfriend Mr. Barrett was in a car with the victim, he refused to give her
the keys, refused to let her leave, strangled victim who had injuries consistent with victim’s
allegations.”
¶ 24 The third order, in case No. 24-CF-311, stated the following after finding defendant
committed a detainable offense:
“Defendant made contact with [victim] in violation of an order of protection at Marketplace
Mall, Champaign by text message. He did this while on pretrial release.”
The trial court’s order also found defendant posed a real and present threat and no condition or
combination of conditions could mitigate defendant’s dangerousness. In support, the order stated,
“High risk VPRAI. Pending cases significant. History of violent offenses. Threat to a protected
party, defendant admits he knows.”
¶ 25 Defendant timely appealed each of the orders. [CITATION]. Upon motion by the State, this court consolidated the orders for purposes of appeal and
disposition. 1
Pursuant to [CITATION], our decision in this case
was due on or before June 20, 2024, absent a finding of good cause for extending the deadline. Based on
the high volume of appeals under the Act currently under the court’s consideration, as well as the
complexity of issues and the lack of precedential authority, we find there to be good cause for extending
the deadline.
¶ 26 II. ANALYSIS
¶ 27 Pretrial release—including the conditions related thereto—is governed by statute. See Pub.
Act 101-652, § 10-255 (eff. Jan. 1, 2023); Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023). A
defendant’s pretrial release may be denied only in certain statutorily limited situations. 725 ILCS
5/110-6.1 (West 2022). In order to detain a defendant, the State has the burden to prove by clear
and convincing evidence that (1) the proof is evident or the presumption great that the defendant
has committed a qualifying offense, (2) the defendant’s pretrial release poses a real and present
threat to the safety of any person or the community or a flight risk, and (3) less restrictive
conditions would not avoid a real and present threat to the safety of any person or the community
and/or prevent the defendant’s willful flight from prosecution. Id. § 110-6.1(e).
¶ 28 In considering whether the defendant poses a real and present threat to the safety of any
person or the community, i.e., making a determination of “dangerousness,” the trial court may
consider evidence or testimony concerning factors that include, but are not limited to, (1) the nature
and circumstances of any offense charged, including whether the offense is a crime of violence
involving a weapon or a sex offense; (2) the history and characteristics of the defendant; (3) the
[SEGMENT 3]
identity of any person to whom the defendant is believed to pose a threat and the nature of the
threat; (4) any statements made by or attributed to the defendant, together with the circumstances
surrounding the statements; (5) the age and physical condition of the defendant; (6) the age and
physical condition of the victim or complaining witness; (7) whether the defendant is known to
possess or have access to a weapon; (8) whether at the time of the current offense or any other
offense, the defendant was on probation, parole, or supervised release from custody; and (9) any
other factors including those listed in section 110-5 of the Code of Criminal Procedure of 1963
[id. § 110-5]. [CITATION]
¶ 29 To set appropriate conditions of pretrial release, the trial court must determine, by clear
and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the
appearance of a defendant as required or the safety of any other person or the community and the
likelihood of compliance by the defendant with all the conditions of pretrial release.” Id. § 110-
5(a). In reaching its determination, the trial court must consider (1) the nature and circumstances
of the offense charged; (2) the weight of the evidence against the person; (3) the history and
characteristics of the person; (4) the nature and seriousness of the specific, real, and present threat
to any person that would be posed by the person’s release; and (5) the nature and seriousness of
the risk of obstructing or attempting to obstruct the criminal justice process. Id. The statute lists
no singular factor as dispositive. See id.
¶ 30 Our standard of review of pretrial release determinations is twofold. The trial court’s
factual findings are reviewed under the manifest weight of the evidence standard. [CITATION], ¶ 12. “ ‘A finding is against the manifest weight of the evidence only
if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not
based on the evidence presented.’ ” Id. (quoting [CITATION]). We review the trial court’s ultimate determination regarding the denial of pretrial release for an
abuse of discretion. Id. ¶ 11. “An abuse of discretion occurs when the decision of the circuit court
is arbitrary, fanciful, or unreasonable, or when no reasonable person would agree with the position
adopted by the trial court.” Id.; see also [CITATION], ¶ 59. “[I]n reviewing
the circuit court’s ruling for abuse of discretion, we will not substitute our judgment for that of the
circuit court, ‘merely because we would have balanced the appropriate factors differently.’ ”
[CITATION], ¶ 15 (quoting [CITATION]).
¶ 31 All three of defendant’s notices of appeal request reversal of the trial court’s orders denying
him pretrial release. The three notices of appeal provided additional language under each of the
eight potential issues that could be raised in the standard notice of appeal form. 2 Of those eight,
two contained “checked” boxes next to the issues. We shall only consider the “checked issues.”
See [CITATION], ¶ 20. The “checked” issues for all three notices
included: (1) whether the State failed to meet its burden of proving that no condition or
combination of conditions could mitigate defendant’s dangerousness; and (2) whether the court
erred in determining that no condition, or combination of conditions, would reasonably ensure
defendant’s appearance for later hearings or prevent defendant from being charged with a
subsequent felony or Class A misdemeanor. The majority of the typewritten language underneath
either checked issue failed to contain argument specific to the cases or merely provided language
related to the burden of proof required for each issue.
¶ 32 On May 6, 2024, defendant’s counsel on appeal, the Office of the State Appellate Defender,
filed a Rule 604(h) notice filed in lieu of Rule 604(h)(7) memorandum in each case. The notices
stated they were timely filed, this court had jurisdiction of each case, and no memorandum would
be filed.
¶ 33 The State filed a Rule 604(h) memorandum on May 24, 2024. Therein, the State argued
that defendant waived all of his arguments raised on appeal by failing to provide any argument
before the trial court. In the alternative, the State argues that the evidence supported the trial court’s
findings and requests affirmation of the orders denying pretrial release.
This court previously addressed this situation. See [CITATION],
¶¶ 18-26. We again remind trial counsel of the ethical obligations regarding frivolous appeals and the failure
to properly delineate the issues for consideration on appeal.
¶ 34 As noted above, each of defendant’s notices of appeal contained two issues for
consideration. The second issue relates solely to revocation of pretrial release. See 725 ILCS
5/110-6 (West 2022) (dealing solely with revocation or modification of pretrial release conditions
as well as sanctions related to violation of pretrial conditions). Our review of the record reveals
this issue is inapplicable for all three of the cases on appeal. Accordingly, we find this issue has
no merit for any of the cases appealed.
¶ 35 The remaining issue for each of the cases on appeal contends the State failed to show by
clear and convincing evidence that no condition, or combination of conditions, was sufficient to
mitigate defendant’s dangerousness. In support, in addition to addressing the burden of proof, the
typewritten language in all three cases stated, “In this case, the State failed to meet its burden
because there are conditions as set for[th] in 725 ILCS 5/110-10(b) which would mitigate the threat
and/or the willful flight risk.” As noted above, the State argued that defendant waived this issue
by failing to present it to the trial court. In support, the State cites [CITATION], ¶ 38, for the proposition that issues not properly presented or preserved before
the trial court are waived. We find the State’s reliance on [CITATION] unwarranted.
¶ 36 In [CITATION], defendant’s argument on appeal was based on his claim that the trial court
erred in failing to allow him to speak with his counsel during the hearing. Id. As defendant’s
counsel never raised the issue or objected to the trial court’s actions, we found the issue was
forfeited. Id. Here, the issue is the sufficiency of the State’s evidence. “[W]hen a defendant makes
a challenge to the sufficiency of the evidence, his or her claim is not subject to the waiver rule and
may be raised for the first time on direct appeal.” [CITATION] (citing [CITATION]). Accordingly, the issue is not forfeited.
¶ 37 Typically, when considering the sufficiency of the evidence, “the reviewing court must
view the evidence ‘in the light most favorable to the prosecution.’ ” [CITATION] (quoting [CITATION]). “This means the
reviewing court must allow all reasonable inferences from the record in favor of the prosecution.”
Id. In this case, the question becomes, “ ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found’ ” (emphasis in original)
(id. at 278 (quoting [CITATION])) that the State proved by clear and convincing
evidence that no condition, or combination of conditions, would mitigate defendant’s
dangerousness. Each decision is based on its own articulable facts. See 725 ILCS 5/110-6.1(h)(1)
(West 2022).
¶ 38 As stated above, in determining which conditions of pretrial release, if any, would
reasonably ensure the appearance of the defendant, the safety of persons and the community, and
the likelihood of defendant’s compliance with terms of pretrial release, the statute provides factors
for the trial court’s consideration. See id. § 110-5(a). These include, inter alia, (1) the nature and
circumstances of the offense charged, (2) the weight of the evidence against defendant, (3) the
history and characteristics of the defendant, and (4) the nature and seriousness of the real and
present threat to the safety of any person or persons or the community based on the articulable
facts of the case that would be posed by the defendant’s release. Id. Many of these are similar to
those listed in section 110-6.1(g) that address a defendant’s dangerousness. See id. § 110-6.1(g).
As such, there is no legal basis to minimize or ignore the State’s argument addressing the
dangerousness factors when also considering whether it proved that no conditions exist that would
mitigate defendant’s dangerousness.
¶ 39 As to case No. 24-CF-316, the State argued that defendant was not in compliance with
pretrial release conditions issued in Champaign County case No. 23-CF-1636, which included a
condition that prohibited defendant from committing further offenses. The State also noted that
defendant had a very long criminal history that included numerous violent offenses as well as new
violent offenses that occurred during pretrial release. The State argued that defendant was
dangerous for those reasons as well as his inability to comply with court orders and therefore there
were no conditions the court could impose that would prevent defendant from committing new
[SEGMENT 4]
offenses.
¶ 40 The trial court found defendant posed a real and present threat to the safety of the
community. The court also noted the pretrial investigatory report that classified defendant with a
VPRAI-R of 13 out of 14 and placed defendant at the highest possible risk level and that was
understandable given the extensive nature of defendant’s criminal history and the fact that he was
on court supervision when the charge was brought. The court also noted the additional pending
charges when the incident occurred. The court found that, based on that information, no condition
or combination of conditions would mitigate the danger defendant posed.
¶ 41 As to case No. 24-CF-315, the State argued that defendant was previously incarcerated for
his convictions in the prior domestic battery cases. It then proffered that defendant held the victim
against her will at the U-Haul location by refusing to give the victim her keys or allowing her to
leave. The State further proffered that the victim advised the police that she was strangled, beaten,
and feared for her life. The police noted that the victim was crying, visibly shaking, and had had
red marks and bruising on her neck, temple, and throat consistent with the victim’s account of the
incident.
¶ 42 The trial court found that the VPRAI-R classified defendant at the highest risk level
possible. It further found defendant was currently on community supervision at the time of his
arrest and had a history of violent convictions. Based on this information, the court found that no
condition, or combination of conditions, would mitigate defendant’s risk to the victim.
¶ 43 Finally, as to case No. 24-CF-311, the State again argued that defendant had a long history
of domestic violence, including numerous prior convictions and sentences at IDOC for the
offenses. The State also noted the threatening content of the text message to the victim and her
family. The State argued that GPS would not prevent any further messaging and defendant was
actually near the victim when the threats were sent and presented a viable threat of harm. The State
also argued that GPS did not address the fact that it occurred in a public place at the mall and that
defendant was on pretrial release at the time the message was sent that prohibited from committing
additional offenses and admitted knowing that he was prohibited from contacting the victim.
¶ 44 In response, the trial court found that defendant made contact with the victim while she
was at the mall by text message and was aware that he was precluded from such action as a
condition of his pretrial release. The court again referred to the VPRAI-R which classified
defendant at the highest possible risk, defendant’s numerous pending cases, as well as his prior
convictions for residential burglary and domestic abuse, noting that charges stemmed from an
incident involving the same victim, and occurred in a relatively short period of time. Therefore,
the court found that no condition or combination of conditions would mitigate defendant’s
dangerousness to both the victim and the community.
¶ 45 Here, as to all three cases, we note that the conditions of release found in section 110-10
(725 ILCS 5/110-10 (West 2022)) are based on a defendant’s compliance with court ordered
conditions. Given that defendant’s history reveals three separate instances that involved violation
of pretrial release conditions, we cannot find that the State’s reliance on defendant’s violation of
his pretrial supervision conditions was unwarranted. See id. § 110-6(g)(8) (addressing the status
of a defendant at the time the incident occurred). Similarly, the State’s reliance on the VPRAI-R
and defendant’s criminal history was proper. See id. § 110-6(g)(2) (addressing a defendant’s
history and personal characteristics). Accordingly, when considered in conjunction with the
separate details related to each incident, we cannot find that the State failed to prove, by clear and
convincing evidence, that no condition or combination of conditions would mitigate defendant’s
dangerousness for any of the three cases.
¶ 46 We cannot find that the trial court’s findings in each case that no conditions would mitigate
defendant’s dangerousness were against the manifest weight of the evidence. Therefore, we hold
that the trial court’s ultimate dispositions, denying pretrial release in all three cases, were not
abuses of discretion.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated herein, the trial court findings in each case were not against the
manifest weight of the evidence and its ultimate disposition for each case was not an abuse of
discretion. Therefore, we affirm the trial court’s orders.
¶ 49 Affirmed.
2024 IL App (5th) 240367-U
NOTICE
NOTICE
Decision filed 05/31/24. The
This order was filed under
text of this decision may be NO. 5-24-0367
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) No. 24-CF-218
)
JOSEPH D. HOOSIER, ) Honorable
) Brett N. Olmstead,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court.
Justices Boie and McHaney concurred in the judgment.
ORDER
¶1 Held: The trial court’s order granting the State’s petition to deny pretrial release is
affirmed where the trial court’s findings were not against the manifest weight of
the evidence and the order denying pretrial release was not an abuse of discretion.
¶2 Defendant appeals the trial court’s order denying his pretrial release pursuant to Public Act
101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability, Fairness
and Equity-Today (SAFE-T) Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023); [CITATION], ¶ 52 (lifting stay and setting effective date as September 18, 2023). For
the following reasons, we affirm the trial court’s order.
¶3 I. BACKGROUND
¶4 On February 16, 2024, defendant was charged, by information, with aggravated battery
with a firearm, a Class X felony, in violation of section 12-3.05(e)(1) of the Criminal Code of 2012
(720 ILCS 5/12-3.05(e)(1) (West 2022)) and conspiracy to commit robbery, a Class 3 felony, in
violation of sections 18-1(a) and 8-2(a) (id. §§ 18-1(a), 8-2(a)). A warrant for his arrest was entered
the same day. Defendant was arrested on February 27, 2024. On February 28, 2024, defendant was
charged, by information, with a third count of unlawful possession of a weapon by a felon, a Class
2 felony, in violation of section 24-1.1(a) (id. § 24-1.1(a)). The same day the State filed a petition
to deny defendant’s pretrial release.
¶5 A pretrial investigation report was filed on February 28, 2024. The report indicated that
defendant was 46 years old and lived in Champaign, Illinois, for 10 years with his girlfriend. Prior
to that he lived in Chicago, Illinois. He was the father of one child, who was now 29 years old. He
was unemployed but stated that he had an interview at Walmart that day for a stocking position
working third shift. No drug or mental health issues were listed.
¶6 Defendant’s criminal history included convictions in Illinois for unlawful possession of
cannabis by a passenger, leaving the scene of an accident, forgery, manufacture, and delivery of
cannabis 10-30 grams, possession of a controlled substance, manufacture, and delivery of cocaine
30-100 grams, and unlawful possession of a firearm. He also had convictions in Missouri for
operating a motor vehicle without a license, DWI, distribution of a controlled substance, leaving
the scene of an accident, driving while license suspended, and driving with license revoked. The
Virginia Pretrial Risk Assessment Revised (VPRAI-R) classified defendant as a 4 out of 14 on the
scale that equated to a level 2 (out of 6) or 9.8% risk for recidivism if released pretrial.
¶7 The trial court proceeded on the State’s petition on February 29, 2024. The State proffered
that the victim resided out of state where he had a legal cannabis dispensary business. The victim
travelled to Champaign for business and to visit his adult children. On December 22, 2023, the
victim met with an individual who suggested he provide samples of his cannabis business and
there was a brief telephone conversation. The victim indicated that he was not interested and
[SEGMENT 5]
thought the matter was done. During that contact, the victim indicated that he was going to the car
wash in Mahomet and individuals, including defendant, knew he was travelling with cannabis
and/or cash.
¶8 Based on video obtained by the police, defendant and two other individuals appeared as if
they were getting ready to “close in” on the victim at the car wash. Defendant and his codefendants
approached the victim and grabbed him from behind. The victim struggled. Defendant was in
possession of a handgun. The victim managed to get free and tried to get in his vehicle when
defendant shot the victim twice in the side. Two .45-caliber shell casings were found at the scene.
The victim was able to get to his car, flee, and call his daughter, who took him to the hospital. The
hospital called the police.
¶9 Defendant is later seen on video walking in an outdoor supply store next to a retail area
and possessing a handgun consistent with that described by the victim. He concealed the handgun
under some stacked materials before noticing a camera. He then turned around and recovered the
firearm. Two other witnesses provided statements consistent with that of the victim. The victim
was provided a blind array of photographs and immediately named defendant as the shooter. Two
vehicles driven by the alleged co-conspirators were later located by police and those people were
interviewed by police. One of the alleged co-conspirators denied being in Mahomet. The other
admitted he was there to meet the victim with defendant and that he remained in the car. He
indicated that he knew there was a deal discussed but did not know it would involve a shooting.
The first co-conspirator eventually admitted that the other co-conspirator’s account was accurate
and affirmatively stated he was not the shooter “but if he told what his intent was it would make
things worse for him.” He stated that he rode alone to the meeting place and later met up with
defendant and the other co-conspirator. The State proffered that the car wash video was reviewed
either the same day or shortly thereafter and the license plates of the vehicles driven by the alleged
assailants were seen in the video.
¶ 10 Defense counsel proffered that defendant lived in Champaign for the last 10 years with his
fiancée. She recently underwent surgery and required additional surgery on her knee. Defendant
was helping her greatly with her recovery and her physical needs. Defendant was not currently
employed but had a job interview at Walmart and, despite missing the interview, received a call
back for employment. He also received a call back from Meijer for employment, indicating he had
employment opportunities. Counsel stated it would not minimize defendant’s criminal history but
stated the most significant brush with the law in the last four years was a forgery case.
¶ 11 The State argued about the seriousness of the offense and the evidence revealing defendant
was involved in the conspiracy to commit the crime and was a danger in that regard not only to
the victim, but to anybody in the community. The State argued that defendant had six prior felonies
and four Illinois Department of Corrections sentences. The State further argued that the only reason
defendant only had one felony in the last 10 years was because defendant was in prison for 15
years, so he did not have the opportunity to commit more felonies during that period. The State
noted that drugs were involved, and defendant had five prior convictions involving drugs including
four felonies and one DUI involving drugs. The State also noted defendant’s previous conviction
for possession of a firearm. The State argued that defendant was dangerous and asked that pretrial
release be denied.
¶ 12 Defense counsel proffered that the evidence was “quite a bit more attenuated” than argued
by the State. He stated that defendant was not identified in the video. While both co-conspirators
stated they were not the shooter, counsel was unaware as to whether only one or both indicated
defendant was the shooter. He said there was video from the car wash and the supply store, but the
length of time between the videos was unknown and it was unclear if defendant was wearing the
same clothes. He stated the evidence was not clear and convincing. Counsel further acknowledged
defendant’s lengthy criminal record but stated he was released in 2014 and other than the forgery
case in 2018, there was nothing to be seen. Counsel stated defendant was a longtime resident of
the area, had job prospects available, and a fiancée who depended on him. He was willing to agree
to home confinement, GPS, or whatever the court ordered, but should be released with pretrial
conditions.
¶ 13 The court addressed the proffers and noted that the victim identified defendant as the
shooter, there was video from both the car wash and the supply store, and defendant was a felon.
Therefore, it found that the State proved, by clear and convincing evidence, that defendant
committed a qualifying offense, namely counts I and III, involving aggravated battery with a
firearm and unlawful possession of a weapon by a felon. The court also addressed whether
defendant posed a real and present threat to any person or the community. It did not find that
defendant was a threat to the victim but did find he was a threat to the community. The court
recognized that defendant had been in Champaign for 10 years and was helping his fiancée
following her surgery. It further noted that defendant’s criminal history was in the past, but it could
not be ignored, noting that defendant had eight felony convictions and six prior prison sentences.
It noted that the prior possession of a weapon felony resulted in a probation sentence that went
unsatisfied. Defendant’s criminal convictions included a 15-year sentence for a drug charge, and
he was released around 2015. Thereafter, he had a nonviolent forgery charge in 2018 and a
possession of cannabis charge from 2020 for which he received probation, but that probation was
not satisfied either. The court continued stating:
“Now with that record and that experience with both community-based sentences,
a felony conviction based solely on his possession alone of a firearm. The experience he’s
had serving multiple prison sentences, the pretrial risk assessment score of 4 grossly
understates what’s happening here. What’s happened is a person who has been through a
lot in life and has had opportunity after opportunity that ought to have been providing
deterrence to commit an offense is now in possession of a firearm, participates in an attempt
robbery, and during that shoots the Mr.—the alleged victim, *** in the side, aggravated
discharge of the firearm and then tries to hide the weapon, sees the camera and realizes that
that hiding place won’t work, retrieves it, has chosen another one, and the firearm’s gone.
The court’s considered and rejected GPS monitoring too. That’s not doing it. The State’s
proven by clear and convincing evidence that there’s no condition or combination of
conditions that can mitigate the real and present threat that Mr. Hoosier poses to community
safety. The State’s request for pretrial detention is granted.”
¶ 14 Following the hearing, the trial court issued an order finding defendant committed a
detainable offense. In support, the order stated,
“On December 22, 2023, the alleged victim mentioned during conversation that he operates
a legal cannabis dispensary and was traveling to a car wash in Mahomet. When he arrived
there, video showed other vehicles arrive and park in several different areas, as if having
followed him and targeting him. That video, supported by witnesses, showed individuals
including defendant Mr. Hoosier approach the victim and grab him from behind, the victim
struggle[d] and get[s] free and Mr. Hoosier shoots the victim in the side with a firearm.
Later that same day video at a supply store showed Mr. Hoosier pull a handgun and hide it
under stacked materials then sees the camera and retrieve[s] the gun and leave[s]. The
victim immediately picked out Mr. Hoosier in a blind photo array as the person who shot
him[,] and the two co-defendants admitted that defendant was present at the shooting but
neither of them was the shooter. Mr. Hoosier is a convicted felon as alleged.”
¶ 15 The trial court’s order also found defendant posed a real and present threat and no condition
or combination of conditions could mitigate defendant’s dangerousness. In support, the order
stated,
“Mr. Hoosier has eight felony convictions between Illinois and Missouri including six
prison sentences and a prior gun felony, for which he received Probation/Boot Camp that
was terminated unsatisfied. From 1999-2002 he had a series of three drug felonies and was
sent to prison for each, then had a significant period of time with no convictions. But then
in 2018 he was convicted of Forgery (3), in that same year he received a disposition for
Leaving the Scene (A), and in 2020 he received Court Supervision for a Class A cannabis
charge that was terminated unsatisfied. With all of that experience with the criminal justice
system and serious consequences, the State now has clear and convincing evidence,
supported by video, that Mr. Hoosier conspired with others to rob a cannabis dispensary
owner, armed himself with a firearm he could not lawfully possess, shot the victim in the
course of the robbery, then took action to hide the gun, which still has not been found. He
has strong ties to the community, work prospects, ongoing medical needs, and a low risk
assessment score, but a long history of serious deterrent measures have not worked[,] and
[SEGMENT 6]
the risk assessment fails to properly account for the nature of that history and the specific
facts of the currently charged crimes. No conditions of release can mitigate the real and
present threat Mr. Hoosier poses to community safety.”
Defendant timely appealed. Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023). 1
¶ 16 II. ANALYSIS
¶ 17 Pretrial release—including the conditions related thereto—is governed by statute. See Pub.
Act 101-652, § 10-255 (eff. Jan. 1, 2023); Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023). A
defendant’s pretrial release may be denied only in certain statutorily limited situations. 725 ILCS
5/110-6.1 (West 2022). In order to detain a defendant, the State has the burden to prove by clear
and convincing evidence that (1) the proof is evident or the presumption great that the defendant
has committed a qualifying offense, (2) the defendant’s pretrial release poses a real and present
threat to the safety of any person or the community or a flight risk, and (3) less restrictive
conditions would not avoid a real and present threat to the safety of any person or the community
and/or prevent the defendant’s willful flight from prosecution. Id. § 110-6.1(e).
¶ 18 In considering whether the defendant poses a real and present threat to the safety of any
person or the community, i.e., making a determination of “dangerousness,” the trial court may
consider evidence or testimony concerning factors that include, but are not limited to, (1) the nature
and circumstances of any offense charged, including whether the offense is a crime of violence
involving a weapon or a sex offense; (2) the history and characteristics of the defendant; (3) the
identity of any person to whom the defendant is believed to pose a threat and the nature of the
threat; (4) any statements made by or attributed to the defendant, together with the circumstances
surrounding the statements; (5) the age and physical condition of the defendant; (6) the age and
physical condition of the victim or complaining witness; (7) whether the defendant is known to
Pursuant to Illinois Supreme Court Rule 604(h)(5) (eff. Dec. 7, 2023), our decision in this case
was due on or before May 28, 2024, absent a finding of good cause for extending the deadline. Based on
the high volume of appeals under the Act currently under the court’s consideration, as well as the
complexity of issues and the lack of precedential authority, we find there to be good cause for extending
the deadline.
possess or have access to a weapon; (8) whether at the time of the current offense or any other
offense, the defendant was on probation, parole, or supervised release from custody; and (9) any
other factors including those listed in section 110-5 of the Code of Criminal Procedure of 1963
(id. § 110-5). Id. § 110-6.1(g).
¶ 19 To set appropriate conditions of pretrial release, the trial court must determine, by clear
and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the
appearance of a defendant as required or the safety of any other person or the community and the
likelihood of compliance by the defendant with all the conditions of pretrial release.” Id. § 110-
5(a). In reaching its determination, the trial court must consider (1) the nature and circumstances
of the offense charged; (2) the weight of the evidence against the person; (3) the history and
characteristics of the person; (4) the nature and seriousness of the specific, real, and present threat
to any person that would be posed by the person’s release; and (5) the nature and seriousness of
the risk of obstructing or attempting to obstruct the criminal justice process. Id. The statute lists
no singular factor as dispositive. See id.
¶ 20 Our standard of review of pretrial release determinations is twofold. The trial court’s
factual findings are reviewed under the manifest weight of the evidence standard. [CITATION],
¶ 12. “ ‘A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not
based on the evidence presented.’ ” Id. (quoting [CITATION]). We review the trial court’s ultimate determination regarding the denial of pretrial release for an
abuse of discretion. Id. ¶ 11. “An abuse of discretion occurs when the decision of the circuit court
is arbitrary, fanciful, or unreasonable, or when no reasonable person would agree with the position
adopted by the trial court.” Id.; see also [CITATION], ¶ 59. “[I]n reviewing
the circuit court’s ruling for abuse of discretion, we will not substitute our judgment for that of the
circuit court, ‘merely because we would have balanced the appropriate factors differently.’ ”
[CITATION]
¶ 21 Defendant’s notice of appeal requests reversal of the trial court’s order denying him pretrial
release. The notice of appeal provided additional language under each of the eight potential issues
that could be raised in the standard notice of appeal form. 2 Of those eight, three contained
“checked” boxes next to the issue. The “checked” issues included: (1) whether the State failed to
meet its burden of proving that the proof was evident or the presumption great that defendant
committed the qualifying offense charged; (2) whether the State failed to meet its burden of
showing defendant posed a real and present threat to the safety of any person(s) or the community;
and (3) whether the State failed to meet its burden of proving that no condition or combination of
conditions could mitigate defendant’s dangerousness. None of the typewritten language
underneath each checked issue contained argument specific to this case and instead merely
provided language related to the burden of proof required for each issue.
¶ 22 On April 22, 2024, defendant’s counsel on appeal, the Office of the State Appellate
Defender (OSAD), filed a Rule 604(h) memorandum. The memorandum addressed only the last
two issues “checked” by defendant in his notice of appeal. No argument was presented as to the
first issue that addressed whether the proof was evident or the presumption great that defendant
committed the offenses charged.
This court previously addressed this situation. See [CITATION]
¶¶ 18-26. We again remind trial counsel of the ethical obligations regarding frivolous appeals and the failure
to properly delineate the issues for consideration on appeal.
====== End of Part of a Court Ruling ====== ¶ 23 The State filed a Rule 604(h) memorandum on May 10, 2024. Therein, the State ignores
our standard of review (see [CITATION]) and instead claims
our review is solely limited to determining whether the trial court’s order denying pretrial release
was an abuse of discretion. As such, the memorandum is largely irrelevant.
¶ 24 As noted above, defendant’s notice of appeal contained three issues for consideration, but
OSAD’s Rule 604(h)(2) memorandum only addressed two of those issues. In [CITATION], this
court held that when a supporting Rule 604(h) memorandum is filed, it becomes “the controlling
document for issues or claims on appeal” and the notice of appeal would not be used to “seek out
further arguments not raised in the memorandum” unless jurisdiction was raised as an issue. [CITATION].
Other appellate districts have also adopted this
holding. See [CITATION]. Here, OSAD’s memorandum contains no argument for the first issue raised
by defendant in his notice of appeal. Accordingly, we hold that the first issue, initially raised by
defendant in his notice of appeal, was abandoned by his appellate counsel. [CITATION]. As such this court is left with two issues to consider: (1) whether the
State proved, by clear and convincing evidence, that defendant posed a real and present threat to
the safety of any person(s) or the community; and (2) whether the State proved, by clear and
convincing evidence, that no condition, or combination of conditions, could mitigate defendant’s
real and present threat to the safety of any person(s) or the community.
¶ 25 OSAD argues that the State failed to prove that defendant posed a danger to any person(s)
or the community beyond relying on defendant’s current charges. We disagree. Each decision must
be based on its own articulable facts. See 725 ILCS 5/110-6.1(h)(1) (West 2022). Typically, when
considering the sufficiency of the evidence, “the reviewing court must view the evidence ‘in the
light most favorable to the prosecution.’ ” [CITATION] (2004)
(quoting [CITATION] (1979)). “This means the reviewing court must
allow all reasonable inferences from the record in favor of the prosecution.” Id. In this case, the
question becomes, “ ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found’ ” (emphasis in original) (id. at 278 (quoting
[CITATION])) that the State proved by clear and convincing evidence that defendant
[SEGMENT 7]
posed a real and present threat to any person(s) or the community.
¶ 26 As noted above, the statute provides factors for the trial court’s consideration in
determining dangerousness. Included in those factors are the “nature and circumstances of any
offense charged, including whether the offense is a crime of violence, involving a weapon, or a
sex offense.” 725 ILCS 5/110-6.1(g)(1) (West 2022). Here, it is undisputed that one of the offenses
charged involved a crime of violence and the other involved a weapon. The second factor involves
defendant’s history and characteristics. Id. § 110-6.1(g)(2). This includes defendant’s prior
criminal and social history that may reveal a potential of violence. Here, the State presented
argument about defendant’s prior criminal history and noted that history included a crime
involving a weapon. The State also noted that defendant had six prior felony convictions in Illinois
and served prison sentences related to those felonies. Under these articulable facts, we find that
the State presented sufficient clear and convincing evidence that defendant posed a danger to the
community. Accordingly, we hold that the trial court’s finding of dangerousness was not against
the manifest weight of the evidence.
¶ 27 OSAD’s second issue involves the State’s obligation to show that no condition, or
combination of conditions, would mitigate defendant’s dangerousness. It first argues that the State
failed to prove, by clear and convincing evidence, that no condition, or combination of conditions,
====== End of Part ====== would mitigate defendant’s dangerousness. Citing [CITATION],
¶ 26, OSAD argues that the “State never argued that available conditions of release were
insufficient” and contends the State was required to provide proffered facts or other competent
evidence on the issue.
¶ 28 Again, the issue is one of evidentiary sufficiency. The question thus becomes, “ ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found’ ” (emphasis in original) ([CITATION] (quoting [CITATION])) that the State proved by clear and convincing evidence that no condition, or
combination of conditions, would mitigate defendant’s dangerousness.
¶ 29 As stated above, in determining which conditions of pretrial release, if any, would
reasonably ensure the appearance of the defendant, the safety of persons and the community, and
the likelihood of defendant’s compliance with terms of pretrial release, the statute provides factors
for the trial court’s consideration. See 725 ILCS 5/110-5(a) (West 2022). These include inter alia
(1) the nature and circumstances of the offense charged, (2) the weight of the evidence against
defendant, (3) the history and characteristics of the defendant, and (4) the nature and seriousness
of the real and present threat to the safety of any person or persons or the community based on the
articulable facts of the case that would be posed by the defendant’s release. Id. Many of these are
similar to those listed in section 110-6.1(g) that address a defendant’s dangerousness. See id.
§ 110-6.1(g). Contrary to OSAD’s claim, the State presented evidence on this issue when it
presented evidence on the overlapping factors.
¶ 30 Here, the State contended that no condition, or combination of conditions, existed that
would mitigate defendant’s dangerousness. This statement was presented immediately after the
State addressed the current charges, defendant’s prior criminal history that included a charge
similar to that currently pending, and his inability to comply with previously issued restrictions,
notably his possession of a firearm despite his status as a felon. The conditions of release found in
section 110-10 (id. § 110-10) are based on a defendant’s compliance with court-ordered
conditions. Given that defendant’s history reveals an admitted failure to comply with statutory
conditions related to firearm possession, we cannot find that the State failed to prove, by clear and
convincing evidence, that no condition or combination of conditions would mitigate defendant’s
dangerousness.
¶ 31 OSAD further argues that, “if the court was concerned about [defendant] possessing a gun
while on pretrial release, the court could have ordered that [defendant] surrender any guns in his
possession and refrain from possessing any guns while on pretrial release.” OSAD further argues
that “there was no evidence at the hearing that [defendant] had ever violated similar conditions in
the past.”
¶ 32 We again disagree. Here, there was ample evidence before the court to reasonably infer,
based on both the proffer and argument presented by the State, that no conditions, or combination
of conditions, would mitigate defendant’s dangerousness to the community. The court could
reasonably infer that defendant would not refrain from possessing a firearm or other dangerous
weapon when defendant’s history and the current charges confirmed that he previously ignored,
and continued to ignore, said prohibition. While OSAD argues that defendant “successfully
completed multiple terms of mandatory supervised release and a term of conditional discharge,”
the record reveals that at least two of defendant’s prior convictions, including one for possession
of a weapon, were “unsatisfactorily terminated.” Contrary to OSAD’s claim, we disagree that the
record fails to support the trial court’s conclusion that defendant would not comply with conditions
of release. As noted by the trial court, defendant had “experience with the criminal justice system
The provided part of the court ruling does not contain any specific court ruling citations. Therefore, no modifications are necessary.
Here's the text, verified:
```
and serious consequences” related to his prior offenses, yet he continued to engage in actions that
could result in an additional prison sentences, therefore undermining any inference that pretrial
conditions, or combination of conditions, would mitigate defendant’s dangerousness. Accordingly,
we find that the State’s proffer was sufficient to provide clear and convincing evidence that no
condition, or combination of conditions, would mitigate defendant’s dangerousness.
¶ 33 Based on the evidence presented, we cannot hold that the court’s finding that defendant
posed a real and present threat to the community and no condition, or combination of conditions,
would mitigate defendant’s dangerousness to the community was against the manifest weight of
the evidence or its decision to revoke pretrial release was an abuse of discretion.
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated herein, the trial court findings were not against the manifest weight
of the evidence and its ultimate disposition was not an abuse of discretion. Therefore, we affirm
the trial court’s order.
¶ 36 Affirmed.
```
2024 IL App (5th) 240393-U
NOTICE
NOTICE
Decision filed 05/23/24. The
This order was filed under
text of this decision may be NO. 5-24-0393
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jefferson County.
)
v. ) No. 24-CF-52
)
DEWAYNE E. CORBETT, ) Honorable
) Jerry E. Crisel,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Justices Barberis and Boie concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order denying the defendant’s motion to reconsider his pretrial
detention is affirmed where the circuit court properly conducted the hearing via
Zoom video conference.
¶2 The defendant, Dewayne E. Corbett, appeals the March 13, 2024, order of the circuit court
of Jefferson County that denied the defendant’s oral motion to reconsider pretrial release. For the
following reasons, we affirm the circuit court’s order.
¶3 I. BACKGROUND
¶4 On February 21, 2024, the defendant was charged with one count of attempted residential
burglary, a Class 2 felony, and one count of criminal damage to property, a Class A misdemeanor.
On February 22, 2024, the State filed a verified petition to deny the defendant pretrial release. The
same day, the circuit court held a hearing on the State’s petition to deny the defendant pretrial
release. The defendant was present in person for this hearing and was represented by counsel.
Following the hearing, the circuit court entered a written order denying the defendant pretrial
release. The defendant did not appeal this order.
¶5 On February 28, 2024, the defendant appeared in person before the circuit court for his
arraignment. The defendant waived a formal arraignment and entered a plea of not guilty. The
circuit court set the matter for a pretrial conference on March 13, 2024.
¶6 On March 13, 2024, the matter was set for a pretrial conference. The defendant was in
custody and appeared by Zoom video conference. The defendant, through counsel, made an oral
motion to be heard regarding the defendant’s ongoing detention. Counsel argued that the
[SEGMENT 8]
defendant’s pretrial detention should be reconsidered due to a change in circumstances. Counsel
argued that the defendant had been diagnosed with Crohn’s disease prior to his arrest. The
defendant alleged that he was not receiving proper treatment for his Crohn’s disease while in
detention. The defendant complained of intense pain in his stomach and abdominal area as well as
bloody stool. Counsel was unable to present any evidence of the diagnosis to the court and agreed
that the foregoing was based on the self-reporting of the defendant. The State noted that the
presentence investigation report indicated that the defendant did not provide any medical history
other than his history of methamphetamine use. Additionally, the defendant reported that he had
been homeless for six months prior to his detention. Following argument, the circuit court made
an oral pronouncement denying the motion for reconsideration of the defendant’s pretrial detention
and recorded same in a docket entry.
¶7 The following day, the defendant filed a timely notice of appeal. The Office of the
Appellate Defender (OSAD) was appointed to represent the defendant in this appeal and filed a
memorandum in support of the Rule 604(h) appeal ([CITATION]).
¶8 II. ANALYSIS
¶9 On appeal, OSAD filed a Rule 604(h) memorandum in support of the defendant’s appeal
that argued one issue for review—whether the trial court erred by conducting the March 13, 2024,
hearing via Zoom conference rather than in person. This is a different issue than those asserted by
the defendant in his notice of appeal using the standardized notice of appeal form. We will consider
only the issue raised in the defendant’s supporting memorandum. “[I]f a memorandum is filed, it
will be the controlling document for issues or claims on appeal and we will not reference the notice
of appeal to seek out further arguments not raised in the memorandum, except in limited
circumstances, e.g., to determine jurisdiction.” [CITATION], ¶ 42.
¶ 10 The sole issue raised in the defendant’s memorandum is that the circuit court erred in
conducting the defendant’s continued detention hearing via a Zoom conference instead of in
person, purportedly in violation of section 110-6.1(f)(3.5) of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/110-6.1(f)(3.5) (West 2022)).The applicable standard of review when
we review the circuit court’s interpretation and compliance with a statute involves a question of
law which we review de novo. [CITATION], 559 (2008).
¶ 11 The State notes that the defendant forfeited review of this issue by failing to object to the
procedure in the circuit court. The defendant concedes that the alleged error was unobjected to,
but he alleges we should review the matter under a plain-error analysis. “[F]orfeiture is a limitation
on the parties and not the reviewing court, and we may overlook forfeiture where necessary to
obtain a just result or maintain a sound body of precedent.” [CITATION]
132357, ¶ 65. We elect to overlook forfeiture in this instance to maintain a sound body of
precedent.
¶ 12 The defendant argues that the circuit court violated section 110-6.1(f)(3.5) of the Code by
conducting the hearing on his motion to reconsider via Zoom video conference. The relevant
portion of the Code states as follows:
“A hearing at which pretrial release may be denied must be conducted in person (and not
by way of two-way audio visual communication) unless the accused waives the right to be
present physically in court, the court determines that the physical health and safety of any
person necessary to the proceedings would be endangered by appearing in court, or the
chief judge of the circuit orders use of that system due to operational challenges in
conducting the hearing in person. Such operational challenges must be documented and
approved by the chief judge of the circuit, and a plan to address the challenges through
reasonable efforts must be presented and approved by the Administrative Office of the
Illinois Courts every 6 months.” 725 ILCS 5/110-6.1(f)(3.5) (West 2022).
¶ 13 The State argues that the hearing and order from which the defendant appeals is not
required to be in person based on the aforementioned section. We agree with the State. Section
110-6.1(f)(3.5) involves “[a] hearing at which pretrial release may be denied.” Id. In this case, the
defendant already had an in-person hearing on February 22, 2024, at which time his pretrial release
was denied. The hearing that was conducted on March 13, 2024, was scheduled as a pretrial
conference. It was at that time that the defendant, through his counsel, made an oral motion to
reconsider the defendant’s pretrial release. This hearing was a subsequent hearing under section
110-6.1.
¶ 14 Further, if we were to assume the hearing that the defendant complains of was a “hearing
at which pretrial release may be denied,” a review of the entire section reveals an exception if
“the chief judge of the circuit orders use of that system due to operational challenges in
conducting the hearing in person. Such operational challenges must be documented and
approved by the chief judge of the circuit, and a plan to address the challenges through
reasonable efforts must be presented and approved by the Administrative Office of the
Illinois Courts every 6 months.” 725 ILCS 5/110-6.1(f)(3.5) (West 2022).
An order of the Illinois Supreme Court entered in M.R. 31888 on August 30, 2023, permits these
“hearings to be conducted by two-way audiovisual communication systems if, among other
exceptions, the chief judge of the circuit orders the use of those systems due to operational
challenges in conducting the hearings in person.” On September 15, 2023, the chief judge of the
Second Judicial Circuit entered Administrative Order No. 2023023, which “approve[d] the
operational challenges as documented by Illinois Supreme Court Order M.R. 31888 entered on
August 30, 2023, and orders the use of two-way audio-visual communication systems within the
Second Judicial Circuit for purposes of conducting any hearings related to pretrial detention or
conditions of pretrial release were necessary.”
¶ 15 Accordingly, the circuit court did not err in conducting the hearing on the defendant’s
motion to reconsider his pretrial detention via Zoom video conference pursuant to the
aforementioned administrative orders. At this point, we find it prudent to remind counsel of their
ethical obligations regarding frivolous appeals. See [CITATION],
¶¶ 18-26.
¶ 16 Yet another reason that the defendant’s appeal must fail is that the defendant invited the
error he now seeks to complain of. At the beginning of the Zoom video conference, the defendant,
through his counsel, requested to be heard on a motion to reconsider the defendant’s pretrial
release—a request for the hearing to be scheduled at a later time, in person, was not made. “Under
the doctrine of invited error, an accused may not request to proceed in one manner and then later
contend on appeal that the course of action was in error.” [CITATION]. The hearing that occurred via Zoom video conference at the defendant’s request precludes
the defendant from raising such course of conduct as error on appeal. Id.
¶ 17 III. CONCLUSION
¶ 18 For the reasons stated herein, the circuit court did not err in conducting the March 13, 2024,
hearing via Zoom video conference. Therefore, we affirm the circuit court’s order of March 13,
2024.
¶ 19 Affirmed.
2024 IL App (5th) 240167-U
NOTICE
NOTICE
Decision filed 04/24/24. The
This order was filed under
text of this decision may be NO. 5-24-0167
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) No. 24-CF-96
)
DANTE FREEMAN, ) Honorable
) Brett N. Olmstead,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court.
Justices Barberis and Boie concurred in the judgment.
ORDER
¶1 Held: The trial court’s order granting the State’s petition to deny pretrial release is
affirmed where the trial court did not abuse its discretion in denying defendant’s
request to confer with his appointed counsel while the court was issuing its ruling.
¶2 Defendant timely appeals the trial court’s order denying his pretrial release pursuant to
Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability,
Fairness and Equity-Today (SAFE-T) Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023);
[SEGMENT 9]
[CITATION], ¶ 52 (lifting stay and setting effective date as September 18, 2023). For the following reasons we affirm the trial court’s order.
¶3 I. BACKGROUND
¶4 On January 23, 2024, defendant was charged by information with four counts of predatory
criminal sexual assault of a child in violation of section 11-1.40(a)(1) of the Criminal Code of
2012 (720 ILCS 5/11-1.40(a)(1) (West 2022)), all Class X felonies. The same day, the State filed
a petition to deny defendant pretrial release. Defendant was appointed counsel and the State’s
petition was continued until January 25, 2024.
¶5 The pretrial investigation report was filed on January 23, 2024, and stated that defendant
was 31 years old, divorced, and reported having five daughters. He lived in Rantoul, Illinois,
following his father’s death three years ago. He stated he had no family in the area. He reported
having reliable transportation that would allow him to be present for all court hearings. He had a
bachelor’s degree and worked full time as a cashier and packer at KFC and was enrolled in truck
driving school with 15 hours left until completion. His medical issues stemmed from complications
of being shot 17 times. He was scheduled for surgery on February 10, 2024, to remove the bullets.
He reported no history of drug abuse or mental health issues.
¶6 The report indicated that defendant was currently on probation in Champaign County case
No. 22-CF-433 and was on conditional discharge in Champaign County case No. 22-CM-139.
Defendant scored a 5 out of a possible 14 on the Virginia Pretrial Risk Assessment Instrument-
Revised (VPRAI-R) which classified him as a level 3 out of 6 risk for possible violations of pretrial
release conditions. His criminal history included public indecency/lewd exposure on August 9,
2023, for which he was on conditional discharge and resisting a peace officer from September 27,
2022, for which he received probation. Additional criminal cases included obstructing
identification, interference with a report of domestic violence, and domestic assault.
¶7 On January 25, 2024, defendant was charged with a fifth count of predatory criminal sexual
assault of a child in violation of 11-1.40(a)(1) of the Criminal Code of 2012 (720 ILCS 5/11-
1.40(a)(1) (West 2022)), a Class X felony. Prior to the pretrial hearing, the trial court advised
defendant as to how the hearings would proceed, and the effect of the orders—whether for
conditional release or denial of pretrial release—as well as any consequences related to violation
of a pretrial release order. The court stated, “During your hearing, you have the right to speak with
your lawyer.” The court explained that despite the fact that defendant was appearing by video, he
simply needed to raise his hand and speak up to get the court’s attention. Thereafter, the court
would pause the hearing and put the parties in a private location so defendant could speak with
counsel. The court also advised defendant of his appeal rights stemming from any pretrial release
order. Defendant’s case was called, and he was provided the option of either standing or sitting in
front of the monitor. The court noted that defendant’s appointed counsel, Ms. Wilson, was in the
courtroom.
¶8 The court first noted that a fifth charge of predatory criminal assault of a child was filed
and read the fifth charge, along with the potential penalties, to defendant. Following the recitation,
defendant asked the court if that count would be in the same court and added with the other four.
The court answered affirmatively. The State and defense counsel advised the court that they had
no additions or corrections to the pretrial investigative report.
¶9 The State started its proffer by addressing defendant’s criminal history. As to the
obstruction of identification case, the State proffered that a public indecency charge was dismissed
as part of the plea for obstruction. The facts related to those two charges revealed that defendant
went to Walmart, exposed himself to a worker, addressed the size of his penis, and later lied about
his name when he was arrested. The State then proffered a second criminal case involving public
indecency and the defendant. In that case, defendant stood naked in a window on the route a 13-
year-old girl took to get to the bus stop. Defendant would masturbate while the girl walked by.
This happened multiple times and eventually the girl took a video of defendant because she knew
he was going to do it. The State advised that this incident occurred at the same address where the
current charges occurred, and defendant was on conditional discharge for the public indecency
case when the current charges were filed.
¶ 10 The State further proffered that in addition to those cases, defendant was charged with a
Class 4 felony while on probation in [CITATION]. In that case,
defendant fought with officers when they tried to tow his car and defendant ended up injuring one
of the officers. Defendant also had another case in which he was charged with public indecency
stemming from December 27, 2023. In that case, defendant entered a Dollar General Store and
exposed his genitals to the clerk while walking around the store. Police were called and defendant
was given notice to appear in court for that case on February 7, 2024.
¶ 11 The State then moved to the current case, which involved incidents stemming from
December 2023 through January 2024. The State proffered that the victim in this case was nine
years old and her mother was defendant’s girlfriend. The victim and her mother lived with
defendant. On January 6, 2024, the victim moved to her aunt’s house because she had been getting
into trouble at school and by living with her aunt would be able to enroll at a different school. The
aunt noticed some odd, sexualized behavior, including spooning with another child, so she asked
the victim about this. The victim then told her aunt about defendant’s actions. The victim later
went to a Sexual Assault Nurse Examiner (SANE) for a sexual assault examination. The victim
stated that defendant touched her vagina, or penetrated her vagina, with different sex toys. She
also stated that defendant left mucus-like stuff on her buttocks. The victim was forced to perform
oral sex on defendant and defendant performed oral sex on her. He also showed her pornography
on his phone. The victim was able to provide the specific pornographic web address. The victim
stated defendant did this to her when her mother was either asleep or in the shower. She stated that
defendant threatened to beat her if she told anyone. The victim further stated that the daughter of
defendant’s ex-girlfriend, who was of similar age, used to visit and similar touching went on with
her. A search warrant was executed on the residence and at least one of the sex toys described by
the victim was found. The defendant was detained. The victim’s mother stated that defendant
introduced the sex toys to her as a Christmas present and admitted she had a sex toy similar to the
other sex toy described by the victim. She further stated that her daughter came to her with the
pornographic websites, and she confronted defendant about it, but he stated it was just an accident
and said he left his phone open with the website and the victim happened to pick it up.
¶ 12 The State proffered that defendant was interviewed in custody and provided conflicting
statements. He stated that his penis was inoperable, and he could not ejaculate. This was
inconsistent with the fact that he fathered seven children.
¶ 13 The State further proffered that the victim was interviewed at the Child Advocacy Center
(CAC). She was visibly upset and asked repeatedly if defendant was in jail. She was fearful of him
and further stated that defendant made her touch his penis. She also confirmed the sex toys and
defendant’s threat. Ultimately, the interview had to be stopped because the victim became so
emotional.
¶ 14 Finally, the State proffered that when defendant was taken to jail, a baggy containing
approximately one gram of powdered cocaine was found hidden in his mouth. After defendant was
advised as to the charges, he became suicidal, started smashing walls, and asked to be handcuffed
behind his back so he could not harm himself.
¶ 15 Defense counsel advised the court that she had no factual presentation. She only had
argument.
¶ 16 The State argued that defendant was a danger to anyone around him, especially young
children. He exhibited a pattern of exposing himself to people in public and could not control his
sexual behaviors. The victim’s statements were corroborated by evidence and other witnesses, and
it appeared there would also be another victim. The State argued that this was a nonprobationable
charge. The State further argued that defendant was on conditional discharge for a disturbing
incident, “not as horrific as the one he’s charged with,” and was on probation for injuring a police
officer when this happened. The State requested the court, for the protection of the public, the
victim, the witnesses, and even himself, that defendant be detained.
¶ 17 Defense counsel stated that it wanted the court to take into consideration additional issues
related to defendant. Counsel advised that defendant was gainfully employed. He was also the
caretaker of his paralyzed mother. He had a brother, but he was an over-the-road truck driver.
[SEGMENT 10]
Counsel stated defendant lived in a different county from the victim and would have no reason to
go there any further. Counsel further stated defendant would follow any pretrial conditions
imposed by the court. Counsel argued that, with regard to the resisting a peace officer charge,
defendant was compliant on probation. He was in school at Parkland College getting his
commercial driver’s license (CDL). Counsel further stated that while they appreciated the gravity
of the charges, defendant was innocent until proven guilty and asked the court to take that into
consideration. Defense counsel requested defendant’s release with pretrial conditions.
¶ 18 The court then stated it considered the fact presentations, the arguments, and the pretrial
investigation report. The court agreed that defendant was presumed innocent and that the current
hearing was solely related to the State’s petition requesting pretrial detention. The court noted
defendant raised his hand and said, “I’ve started my ruling right now. I’m not gonna pause. I note
you just raised your hand.” Defendant said, “Oh.” The court then stated, “I’m ruling; okay?”
Defendant stated, “Okay.”
¶ 19 The court then indicated the State had proof that included the alleged victim’s statements
that were repeated, and fundamentally consistent, to the aunt, SANE, and the CAC interviewer.
The facts were also supported by difficulties the child was having in school as well as descriptions
of sex toys that were consistent with sex toys later found by police or described by the victim’s
mother. The court found the State provided clear and convincing evidence that the proof was
evident or the presumption great that defendant committed the charged offenses. The court further
stated that it was not considering any of the proffer that considered a second victim.
¶ 20 As to dangerousness, the court stated it was considering evidence beyond the offenses
charged. The court noted the repeated offenses but further noted that defendant was on felony
probation for causing injury to a peace officer and was on conditional discharge for public
indecency when the alleged offenses occurred. The court also noted the second charge of public
indecency that was dropped as part of the plea and noted defendant’s inability to control himself
from acting out sexually in an illegal manner. The court also noted the public indecency charge
involving exposing himself to a 13-year-old child through a window on a route the child took to
catch the bus. The court found defendant was someone who was incapable or unwilling to control
his sexual behavior in a manner that was not illegal and therefore, was dangerous.
¶ 21 The court further found that no condition, or combination of conditions, could mitigate
defendant’s dangerousness, for the community’s safety. It acknowledged the contrary evidence
but noted the other public indecency charge related to the exposure of defendant’s genitals at the
Dollar General Store. The court noted that defendant was employed, had people who depended on
him, had children of his own, and family to support. It further noted that defendant was also
enrolled in a CDL program and had a low-to-medium range score on the pretrial risk assessments.
It stated that while defense counsel indicated that defendant would follow a court order with
pretrial release conditions, the State showed by clear and convincing evidence that was
insufficient. The court denied pretrial release and ordered defendant not to have, or try to have,
contact with the victim in the case. The court then read defendant his appeal rights.
¶ 22 After receiving defendant’s acknowledgment that he understood his appeal rights, he asked
defendant if he had a question. The following exchange occurred:
“THE DEFENDANT: Yes. *** I had raised my question to talk to my attorney
before—
THE COURT: Nope.
THE DEFENDANT:—you had—
THE COURT: The first time you did that was when I had already started talking
with my ruling, and I was not gonna stop my ruling so that you could—
THE DEFENDANT: When—
THE COURT:—speak with your attorney.
THE DEFENDANT: No. The, the first time—the first time I had did it, the states
was talking and when I heard the states talking, I put my hand down because, when I was
in the room, I had—heard you tell someone else that you wasn’t gonna interrupt the state,
so I put my hand down, and then, after he starts talking, you had started talking and
(unintelligible), and I had put my hand up, but if it’s too late, I understand that.
THE COURT: Well, no. Hold on. I’m gonna make a record of this; okay?
THE DEFENDANT: Yes, sir.
It appears that the provided text does not contain any court ruling citations. The text consists entirely of dialogue between THE COURT and THE DEFENDANT, without any mention of other court cases or specific legal citations. As a result, there are no court ruling citations to remove or replace. The text remains unchanged.
Please provide a different part of a court ruling that includes court ruling citations for further processing. Thereafter, defendant said he did, but he did not know where to start. He then asked if he would
go to court on February 20. The court advised defendant that his preliminary hearing was set for
February 14, 2024. Defendant then asked if that was similar to a pretrial hearing. The court told
defendant that his attorney would explain more about that, and he would have an opportunity to
speak with his attorney.
¶ 23 Defendant then asked if someone could help his mom because she was in the house by
herself, and she did not have her phone because he was locked up with her phone. He stated that
he tried to reach his brother, but he was on the road. The court asked for the address and defendant
provided it. Defendant then stated, “It’s—so it’s no way I can speak, speak with my attorney at
all?” An unidentified speaker stated, “They will call you.” The court stated, “Yes, You, you’ll have
plenty of opportunity to speak with your attorney. I’m just not gonna pause the hearing at this point
so you can do that.” The defendant stated,
“So it’s—so is there a way that you can just go back and look at when I had my hand up,
‘cause I, I raised my hand twice, like, and then—like that just, like, got over—my hand got
overruled because the state was talking, and then I put my hand down, but then I raised it
back up—”
The court stated, “No. There was never any—” Defendant interrupted stating “and” and the court
was also speaking. The court stated,
“Hold on. The court didn’t see you raise your hand, even though I’m regularly checking,
and no one in the courtroom, including your attorney, called my attention to you having
raised your hand. The first time I saw you ever with your hand up was when I had already
started talking with my ruling, so by that—at that time, the hearing was over, and I’m just
ruling.”
====== End of Part of a Court Ruling ====== Defendant asked, “There, there is no way that you can go back for a, a, a pause, a brief pause to
see my hand raised.” The court responded, “No.” The State requested the court to include the
victim’s mother as part of the no contact order as well. No objection was raised by defense counsel.
The court stated it would and advised defendant that he was not allowed to contact the victim’s
mother either.
¶ 24 The court issued a written order finding the offense was detainable and defendant posed a
real and present threat to the safety of any person or persons or the community, and no condition
or combination of conditions could mitigate that dangerousness. In support of finding that
defendant committed a detainable offense, and the State proved the proof was evident or the
presumption great, as to the charged offense, the order stated,
“The alleged victim is 9 years old. Defendant Mr. Freeman, who is 31, was her mother’s
boyfriend and, at the time of the charged offenses, was living with the victim and her
mother. The victim reported in an outcry statement to her aunt, and later to a SANE nurse,
then later to a CAC interviewer, Mr. Freeman’s actions described in the charges. Her
account was corroborated by her description of distinctive objects Mr. Freeman used that
later were found in the home and described by the victim’s mother, and the victim’s
description of images Mr. Freeman let her see which were confirmed by his statement to
the victim’s mother, although he claimed the victim’s viewing was accidental. They were
further confirmed by the victim’s distressed and emotional responses and her age-
inappropriate sexualized behavior, all of which was consistent with having suffered the
trauma of these crimes at her age.”
¶ 25 The court further found defendant posed a real and present threat and no condition, or
combination of conditions, would mitigate that threat. In support, the order stated,
“At the time of the offenses, Mr. Freeman was on Probation for felony Resisting a Peace
Officer (causing injury) and Conditional Discharge for Public Indecency. His recent history
of being unable or unwilling to control his illegal sexual conduct is[:] In 20-CM-201 he
was convicted of Obstructing Identification in a plea resulting in the dismissal of a count
of Public Indecency, and the facts involved Mr. Freeman exposing himself to a worker at
[SEGMENT 11]
Wal-Mark while saying ‘I have a big dick’, then fighting with and injuring an officer. In
-CM-139 he was convicted of Public Indecency for exposing himself to a 13-year-old
girl while he stood in the window of the home where the State now can prove the offenses
in this case occurred, and the facts of that case include his repeated exposure to the 13-
year-old, who had to walk by the house to reach the school bus, so many times that she
finally decided to record video of him on her phone. Before the offenses were charged here,
he was issued a notice to appear in February for events on December 27, 2023, when he
exposed his genital to a clerk at Dollar General. Mr. Freeman is employed, has his own
children and other connections to the community, and is enrolled in a CDL program, but
he cannot or will not control his illegal sexual acting out, and his behavior has escalated to
targeting children, then to sexual violence. GPS cannot protect every child, he has
repeatedly ignored sentencing orders and at this point no conditions of release can mitigate
the threat he poses to community safety.”
Defendant timely appealed. Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023).
¶ 26 II. ANALYSIS
¶ 27 Pretrial release—including the conditions related thereto—is governed by statute. See [CITATION]. A
defendant’s pretrial release may be denied only in certain statutorily limited situations. 725 ILCS
5/110-6.1 (West 2022). In order to detain a defendant, the State has the burden to prove by clear
and convincing evidence that (1) the proof is evident or the presumption great that the defendant
has committed a qualifying offense, (2) the defendant’s pretrial release poses a real and present
threat to the safety of any person or the community or a flight risk, and (3) less restrictive
conditions would not avoid a real and present threat to the safety of any person or the community
and/or prevent the defendant’s willful flight from prosecution. [CITATION]
¶ 28 In considering whether the defendant poses a real and present threat to the safety of any
person or the community, i.e., making a determination of “dangerousness,” the trial court may
consider evidence or testimony concerning factors that include, but are not limited to, (1) the nature
and circumstances of any offense charged, including whether the offense is a crime of violence
involving a weapon or a sex offense; (2) the history and characteristics of the defendant; (3) the
identity of any person to whom the defendant is believed to pose a threat and the nature of the
threat; (4) any statements made by or attributed to the defendant, together with the circumstances
surrounding the statements; (5) the age and physical condition of the defendant; (6) the age and
physical condition of the victim or complaining witness; (7) whether the defendant is known to
possess or have access to a weapon; (8) whether at the time of the current offense or any other
offense, the defendant was on probation, parole, or supervised release from custody; and (9) any
other factors including those listed in section 110-5 of the Code of Criminal Procedure of 1963
(Code) ([CITATION]
¶ 29 To set appropriate conditions of pretrial release, the trial court must determine, by clear
and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the
appearance of a defendant as required or the safety of any other person or the community and the
likelihood of compliance by the defendant with all the conditions of pretrial release.” [CITATION]
====== 5(a). In reaching its determination, the trial court must consider (1) the nature and circumstances
of the offense charged; (2) the weight of the evidence against the person; (3) the history and
characteristics of the person; (4) the nature and seriousness of the specific, real, and present threat
to any person that would be posed by the person’s release; and (5) the nature and seriousness of
the risk of obstructing or attempting to obstruct the criminal justice process. Id. The statute lists
no singular factor as dispositive. See id.
¶ 30 Our standard of review of pretrial release determinations is twofold. The trial court’s
factual findings are reviewed under the manifest weight of the evidence standard. [CITATION],
2023 IL App (5th) 230766, ¶ 12. “ ‘A finding is against the manifest weight of the evidence only
if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not
based on the evidence presented.’ ” Id. (quoting [CITATION]). We review the trial court’s ultimate determination regarding the denial of pretrial release for an
abuse of discretion. Id. ¶ 11. “An abuse of discretion occurs when the decision of the circuit court
is arbitrary, fanciful, or unreasonable, or when no reasonable person would agree with the position
adopted by the trial court.” Id.; see [CITATION], 2023 IL 127854, ¶ 59. “[I]n reviewing
the circuit court’s ruling for an abuse of discretion, we will not substitute our judgment for that of
the circuit court, ‘merely because we would have balanced the appropriate factors differently.’ ”
[CITATION], 2019 IL App (1st) 191253, ¶ 15 (quoting [CITATION]).
¶ 31 Defendant’s notice of appeal requests reversal of the trial court’s order denying his pretrial
release. On the standard notice of appeal form used, every possible issue, except one, had language
written below it. However, three of the issues included an “x” in the box to the left of the issue.
The issues “checked” claimed: (1) the State failed to meet its burden of proving by clear and
convincing evidence that the proof was evident or the presumption great that defendant committed
the charged offense; (2) the State failed to meet its burden of proving by clear and convincing
evidence that defendant posed a real and present threat to the safety of any persons or the
community; and (3) the court erred in determining that no condition or combination of conditions
would reasonably ensure the appearance of defendant for later hearings or prevent defendant form
being charged with a subsequent felony or Class A misdemeanor.
¶ 32 The superfluous language under each issue was previously addressed in [CITATION], and we again remind trial counsel of its ethical obligations
related to presenting frivolous issues on appeal. Here, as in Davis, the typewritten words provide
no specific argument and merely define what is required for clear and convincing evidence and
recite applicable sections of the Code. Further, the third issued checked by defendant relates solely
to revocation of previously issued pretrial release conditions pursuant to section 110-6 of the Code
(725 ILCS 5/110-6 (West 2022)). Our review of the record reveals no such event for this case, and
we find the issue has no relevancy in defendant’s case.
¶ 33 This court would consider the remaining two issues raised; however, OSAD filed a Rule
604(h) memorandum. In Forthenberry, this court held that when a supporting Rule 604(h)
memorandum is filed, it becomes “the controlling document for issues or claims on appeal” and
the notice of appeal would not be used to “seek out further arguments not raised in the
memorandum” unless jurisdiction was raised as an issue. [CITATION]. Other appellate districts have also adopted this holding. See [CITATION]. Here,
OSAD’s memorandum contains no argument for the issues raised by defendant in his notice of
appeal. Accordingly, we hold that the issues initially raised by defendant in his notice of appeal
were abandoned by his appellate counsel. [CITATION], ¶¶ 42-44.
¶ 34 Instead of addressing the issues raised by defendant, OSAD argues that defendant was
denied his statutory right to consult with counsel before the detention hearing and further contends
that defendant’s denial was exacerbated by the fact the defendant did not appear in person for the
hearing as required by the statute. OSAD concedes neither issue was raised in defendant’s notice
of appeal but contends the issue is not forfeited because the statute imposed the duty on the court,
not defendant or his counsel. Citing [CITATION], OSAD contends it would be “incongruous to fault defendant for the court’s failure to comply with the
statute.” OSAD further argues, citing [CITATION], that nothing in
the admonitions put defendant on notice that he needed to raise every issue in his notice of appeal
and that denial of the right to counsel could be reviewed as second-prong plain error.
¶ 35 In response, the State filed a Rule 604(h) memorandum arguing that defendant waived
these issues by failing to raise them in his notice of appeal. In the alternative, the State argues that
defendant was not denied the right to consult with counsel prior to the detention hearing, because
counsel was appointed two days prior to the hearing. The State further argues that orders issued
by the Illinois Supreme Court and orders issued by the Sixth Judicial Circuit Court Judge and
Champaign County Court authorized defendant’s remote appearance for this appearance.
¶ 36 Before we address the merits of the issues raised, we must first determine whether the issue
was waived. “ ‘[W]aiver implies a knowing relinquishment of a right, whereas procedural default
[SEGMENT 12]
refers to the failure to adequately preserve an issue for later appellate review.’ ” [CITATION] (quoting [CITATION] (Freeman, J., dissenting, joined by
McMorrow, C.J., and Kilbride, J.)). In [CITATION], the court found a procedural default because “it
would be incongruous to hold that defendant forfeited the right to bring a postconviction claim
because he did not object to the circuit court’s failure to admonish him.” Id. at 188. It was
undisputed in [CITATION] that defendant was not properly and fully admonished as required by the
rules. Id.
¶ 37 Here, however, defendant was properly admonished regarding his appeal rights under the
Code as they relate to pretrial release determinations. Unlike [CITATION], no rule requires defendant
to be admonished that the failure to raise an issue or claim of error on appeal would result in
forfeiture. [CITATION], ¶ 18. Here, as in [CITATION], defendant
was represented by counsel who prepared the notice of appeal. Defense counsel was present at the
hearing, and therefore, was well aware of defendant’s contentions related to whether he timely
raised his hand during the hearing. Despite filing a notice of appeal with language beneath nearly
every possible issue that could be raised in the standard form, defense counsel did not include any
language under the last issue of “other” or provide any argument related to defendant’s attempt to
speak with counsel while the court was issuing its ruling. Regardless, the issue was raised in
OSAD’s memorandum. “[A]n appellant’s notice of appeal, taken in conjunction with the
appellant’s memorandum, must still contain ‘the relief requested and the ground for the relief
requested’ to avoid forfeiture.” Id. ¶ 19. Here, because the issue was raised in the memorandum,
defendant’s failure to raise the issue in the notice of appeal is not dispositive of the issue of waiver.
¶ 38 Instead, the waiver determination must be based on whether the issue was properly raised
and preserved before the trial court. Generally, a defendant is bound by the actions of his attorney.
[CITATION]. Here, it is undisputed that defendant claimed
the trial court failed to acknowledge his request to speak with his attorney during the hearing.
However, at no time did defense counsel confirm defendant’s earlier request for consultation. Nor
did defense counsel present any objection, either prior to or after, any of the trial court’s statements
related to the untimeliness of defendant’s alleged action, despite the issue being raised at least
three times by defendant. Finally, at no time did trial counsel ever argue that defendant was
deprived of any statutory right to consult with counsel. As the issue was neither properly presented
nor preserved before the trial court, we find the issue was waived.
¶ 39 OSAD next argues that denial of defendant’s right to counsel could be reviewed as second-
prong plain error. “Illinois’s plain error rule is a narrow exception to forfeiture principles.” [CITATION]. It does not “call for the review of all forfeited errors.” [CITATION]
“Under the second prong of plain-error review, ‘[p]rejudice to the defendant is presumed because
of the importance of the right involved “regardless of the strength of the evidence.” ’ ” (Emphasis
in original.) [CITATION] (quoting [CITATION], quoting [CITATION]). “When a defendant invokes
the plain error rule, the first step in the analysis is to determine whether a clear or obvious error
occurred.” [CITATION]
¶ 40 Here, defendant claims a statutory error, not a constitutional error. We further note that
defendant does not allege that he did not have counsel. Indeed, as noted by the State, and confirmed
by review of the record, defendant was appointed counsel two days prior to the pretrial release
hearing. As such, counsel’s appointment comported with the statutory requirement that the
“defendant has the right to be represented by counsel” and, if indigent, “to have counsel appointed
for him or her.” 725 ILCS 5/110-6.1(f)(3) (West 2022). At issue is whether the trial court
comported with the remainder of that statutory requirement. That portion states,
“Defense counsel shall be given adequate opportunity to confer with the defendant before
any hearing at which conditions of release or the detention of the defendant are to be
considered, with an accommodation for a physical condition made to facilitate
attorney/client consultation. If defense counsel needs to confer or consult with the
defendant during any hearing conducted via a two-way audio-visual communication
system, such consultation shall not be recorded and shall be undertaken consistent with
constitutional protections.” Id.
¶ 41 Statutory interpretation presents a question of law that is subject to de novo review. [CITATION]
v. Smith, 2016 IL 119659, ¶ 15. The primary objection of statutory construction is to ascertain and
give effect to the true intent of legislature and all other rules are subordinate to this principle.
[CITATION] v. Jamison, 229 Ill. 2d 184, 188 (2008). “The most reliable indicator of legislative intent is
the language of the statute, given it plain and ordinary meaning.” [CITATION] v. Clark, 2019 IL 122891,
¶ 20. “A court must view the statute as a whole, construing words and phrases in light of other
relevant statutory provisions and not in isolation.” Id. “Each word, clause, and sentence of a statute
must be given a reasonable meaning, if possible, and should not be rendered superfluous.” Id.
¶ 42 Here, the statute provides defense counsel an “adequate opportunity to confer with the
defendant before any [pretrial release] hearing.” 725 ILCS 5/110-6.1(f)(3) (West 2022). Defense
counsel was appointed two days before the pretrial release hearing and no argument is presented
that defendant was not given an opportunity to speak with his appointed counsel prior to the
hearing. Given the argument presented by defense counsel, that included facts not found elsewhere
in the record, it is clear to this court that defense counsel conferred with defendant prior to the
hearing. While defendant argues that he was not provided the opportunity to confer with his
counsel during the hearing, no such statutory right appears. Indeed, the statutory right solely
provides for defense counsel to confer with defendant, not for defendant to confer with defense
counsel. Perhaps recognizing this anomaly, the trial court provided a protocol for defendants that
would allow them to confer with counsel during the hearing.
¶ 43 The record revealed that defendant was advised by the court, prior to the hearing, that if he
needed to speak to his counsel during the hearing, he was to raise his hand and speak to the court
so it would be aware of the request. Defendant was placed in front of a monitor so the court and
both attorneys could see him. While defendant contended that he raised his hand while the State
was speaking, he conceded that he voluntarily put his hand down. The record further reveals that
at no time—prior to the court issuing its ruling—did defendant ever raise his hand and advise the
court of his need to speak with his counsel, which was the required protocol established by the
trial court.
¶ 44 “[T]he trial court possesses the inherent authority to control its own docket and the course
of litigation ***.” [CITATION]. Typically, actions taken pursuant to
the inherent authority are reviewed for an abuse of discretion. See [CITATION]. An abuse of discretion is the most deferential standard of review. [CITATION].
The standard is “reserved ‘for those decisions of the lower court which
deserve great deference on review.’ ” Id. (quoting [CITATION]).
A trial court abuses its discretion only when its decision is arbitrary, fanciful, or unreasonable, or
when no reasonable person would take the trial court’s view. [CITATION]. On review, this court does not consider whether it would have made the same
decision if placed in the trial court’s position; rather, we consider whether the trial court’s decision
was arbitrary, made without conscientious judgment, or otherwise in such a way that “ ‘in view of
all of the circumstances, the [trial] court exceeded the bounds of reason and ignored recognized
principles of law so that substantial prejudice resulted.’ ” [CITATION]
863 (2007) (quoting [CITATION]).
¶ 45 It is under this purview that we consider the trial court’s decision to deny defendant the
ability to confer with his counsel while it was issuing its ruling. We first note that the record reveals
defendant’s misconceptions about the hearing as stated in his colloquy with the court. For example,
defendant contended that he put his hand down because the State was speaking and that the trial
court immediately thereafter began to issue its ruling. However, the record fail to reveal such
instance. Instead, the record reveals that the State made its proffer. Thereafter, defense counsel
declined the opportunity to present any proffer and told the court it solely wished to present
argument. The State then presented its argument which was followed by defense counsel’s
argument that also included a proffer. It was only after both parties were provided the opportunity
to present both proffer and argument, and more specifically, following defense counsel’s
argument, and the trial court began issuing its ruling that defendant raised his hand allegedly for a
[SEGMENT 13]
second time.
¶ 46 While the trial court could have been clearer as to when the timeframe to request a
consultation with counsel would be too late in the hearing, it is equally clear that once the evidence,
proffers, and arguments were presented, and the court was issuing its ruling, the time for
consultation had passed. Given that all that was left to occur was for the court to issue its ruling
we cannot find the trial court’s decision was an abuse of discretion. Accordingly, no clear and
obvious error exists and therefore, second-prong plain error cannot be found.
¶ 47 OSAD further argues that defendant’s inability to confer with his counsel was exacerbated
by the fact that defendant was not present for the hearing and seems to claim such action was also
contrary to the statutory requirement. Again, we find no merit in either argument. First, while the
statute states that the pretrial release hearings must be conducted in person, the statute provides
exceptions for operational challenges that are documented and approved by the chief judge of each
circuit. See 725 ILCS 5/110-6.1(f)(3.5) (West 2022). Our supreme court issued an order on August
30, 2023, regarding the conduct of hearings pursuant to the SAFE-T Act. See [CITATION]. Therein, the court provided the proper procedures required for courts that were
unable to comply with the in-person requirement for pretrial hearings set forth in the statute.
¶ 48 With regard to the Sixth Judicial Circuit, Appendix D of the circuit court’s local rules were
amended on March 23, 2023, requiring each county to determine which hearings could be held in
person and which could be held remotely. Thereafter, on September 11, 2023, Champaign County
Chief Judge Rosenbaum issued Administrative Order 2023-5 regarding the implementation of the
SAFE-T Act. Therein, the order found that the physical health and safety of its correctional officers
and the inmates would be endangered due to operational challenges related to in-person hearings
stemming from a deficiency in staff at the Champaign County Sheriff’s Office, which was charged
with bringing inmates to the courthouse. The order required defendants to appear remotely for
pretrial release hearings until said operational challenge was sufficiently reduced so that the
physical health and safety of the correctional officers and inmates would no longer be endangered.
OSAD presents no argument that these administrative orders were defective and therefore, we
decline to find that defendant’s hearing was contrary to law.
¶ 49 Further, OSAD’s argument that defendant’s remote hearing exacerbated his ability to
communicate with his counsel has no merit. As noted above, the statutory right is for defense
counsel to confer with defendant before and during the hearing, not for defendant to confer with
his counsel. 725 ILCS 5/110-6.1(f)(3) (West 2022). There was no evidence in the record that
The provided part of the court ruling does not contain any court ruling citations that need to be replaced with `[CITATION]` or `[CITATION]`. There are no references to other cases, either full citations or abbreviated forms. Therefore, no changes are necessary.
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defense counsel was precluded from conferring with defendant before the hearing or desired a
consultation during the hearing. The trial court’s protocol advised defendant as to what needed to
occur if defendant wished to speak with his counsel during the hearing. No right to speak with
counsel during the trial court’s ruling is found in the statute. Given the current remote-only status
of the pretrial release hearings in Champaign County, the trial court provided defendant with the
proper procedure if defendant wished to confer with his counsel during the hearing. The protocol
included raising his hand and speaking to get the court’s attention. At no time prior to the court
issuing its ruling—by defendant’s own admission—did defendant follow the court’s protocol. As
noted above, we did not find the trial court’s decision to disallow consultation while it was issuing
its ruling to be an abuse of discretion. Therefore, we disagree that defendant’s remote-only status
affected his ability to confer with his attorney. As no other argument was presented, we affirm the
trial court’s order denying pretrial release.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated herein, the trial court did not err in declining defendant’s request to
confer with counsel while it was issuing its ruling. Therefore, we affirm the trial court’s order.
¶ 52 Affirmed.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
2024 IL App (5th) 240448-U
NOTICE
NOTICE
Decision filed 06/21/24. The
This order was filed under
text of this decision may be NOS. 5-24-0448, 5-24-0449, 5-24-0450 cons.
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) Nos. 24-CF-311, 24-CF-315,
)
-CF-316
MICHAEL A. BARRETT, )
) Honorable Brett N. Olmstead,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court.
Justices McHaney and Sholar concurred in the judgment.
ORDER
¶1 Held: The trial court’s orders granting the State’s petitions to deny pretrial release are
affirmed where the trial court’s findings were not against the manifest weight of
the evidence and the orders denying pretrial release were not an abuse of discretion.
¶2 Defendant appeals the trial court’s orders denying his pretrial release pursuant to Public
Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability,
Fairness and Equity-Today (SAFE-T) Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023);
[CITATION], ¶ 52 (lifting stay and setting effective date as September 18,
2023). For the following reasons we affirm the trial court’s orders.
¶3 I. BACKGROUND
¶4 On March 12, 2024, defendant was charged, by information, in case No. 24-CF-311, with
violating an order of protection on February 20, 2024, in violation of section 12-3.4(a) of the Criminal Code of 2012 (Code) (720 ILCS 5/12-3.4(a) (West 2022)), a Class 4 felony, due to a
prior violation of an order of protection in case No. [CITATION]. The State filed a verified petition
to deny pretrial release the same day and defendant was given notice to appear in court on March
13, 2024. Defendant failed to appear. A warrant for his arrest was issued on March 13, 2024, and
he was arrested later that day.
¶5 On March 14, 2024, defendant was charged, by information, in case No. [CITATION], with
one count of aggravated domestic battery occurring on February 15, 2024, in violation of sections
12-3.2(a)(1) and 12-3.3(a-5) of the Code (id. §§ 12-3.2(a)(1), 12-3.3(a-5)), a Class 2 felony, in that
defendant strangled the same victim in case No. [CITATION]. Defendant was also charged with a
second count of aggravated battery occurring on the same date, in violation of section 12-3.2(a)(1)
of the Code (id. § 12-3.2(a)(1)), also a Class 2 felony, in that defendant struck the same victim in
the face. The information for count II further stated defendant had four prior convictions for
domestic battery in case Nos. [CITATION], and [CITATION]. The State
filed a verified petition to deny pretrial release the same day.
¶6 On March 14, 2024, defendant was also charged, by information, in case No. [CITATION],
with residential burglary occurring on March 5, 2024, in violation of section 19-3 of the Code (id.
§ 19-3), a Class 1 felony. The offense was related to the residence of a different victim. The State
filed a verified petition to deny pretrial release the same day.
¶7 Defendant’s first appearance was held on March 14, 2024, in each of the three cases. At
that time, counsel was appointed and the hearings on the State’s petitions to deny pretrial release
were continued to March 15, 2024.
¶8 A pretrial investigation report was filed in case No. [CITATION] on March 14, 2024. The
report indicated that defendant was 47 years old and lived at the Champaign homeless shelter for
====== approximately six months. He previously lived in Rantoul, Illinois, with a friend for about two
years. He had no children but had siblings in the area and advised that he could take the bus to
attend future court hearings. He had some college education. He was currently unemployed but
was looking for employment. He reported a history of drug abuse and requested outpatient
treatment. He also reported mental health issues, including depression and anxiety, but was neither
taking medication nor receiving treatment, for either. He also advised of medical issues related to
his heart but had not started his medications. Defendant was currently under pretrial supervision
in Champaign County case No. 23-CF-1636. He tested positive for amphetamine and
methamphetamine on January 24, 2024, in drug testing taken pursuant to the pretrial supervision.
¶9 The Virginia Pretrial Risk Assessment Instrument-Revised (VPRAI-R) classified
defendant as a 13 out of 14 on the scale that equated to a level six (out of six) or 37.1% risk for
recidivism if released pretrial. In addition to the charges filed in March 2024, the pretrial
investigation report revealed pending charges for possession of methamphetamine less than five
grams and possession of controlled substance. His criminal history included five convictions for
domestic battery (2017, 2014, 2006, 2005, and 2001), three convictions for driving on a suspended
license (one conviction in 2009 and two convictions in 2008), two convictions for burglary (2010
and 2002), and convictions for bad check writing (2021), phone harassment/threaten to kill (2008),
possession of cannabis (2006), violation of an order of protection (1998), and theft less than $300
(1996).
¶ 10 The trial court proceeded on the State’s three petitions in a consolidated hearing held on
March 15, 2024. When the case was first called, the State and defense counsel advised the court
that there was a waiver and defendant agreed to remain in jail. However, defendant disagreed with
counsel’s statement and thereafter, defense counsel requested a continuance to address the matter
again with defendant. The case was reset for later that afternoon. At that time, counsel confirmed
that she spoke with her client. When defendant was questioned about the interaction, he stated,
“Me and my Public Defender came to no agreement about anything. I ended up hanging the phone
up on her, your Honor.” The court advised it would proceed with the hearing.
¶ 11 The State indicated that it would be providing a proffer for each case and started with case
No. 24-CF-316. It advised the court that defendant had several prior domestic battery convictions
as indicated in the pretrial services report. Specifically, case Nos. [CITATION],
and [CITATION] were all convictions for domestic battery with a prior and defendant was
sentenced to the Illinois Department of Corrections (IDOC) in each of those cases. He was also
sentenced to IDOC for telephone harassment in case No. [CITATION] and burglary in case No. [CITATION].
¶ 12 As to the facts underlying case No. 24-CF-316, the State proffered that on March 5, 2024,
University of Illinois police responded to Phi Gamma Delta for a burglary. The victim advised that
he left his backpack in the living room, and it was now gone. Video was reviewed and showed an
unknown white male entering the fraternity house and grabbing two backpacks in the house. The
backpacks contained a computer, mouse, and notebooks. Once the man had the backpacks, he
exited the house. Officers showed the photo of the unknown man to people in the community and
Champaign-Urbana Mass Transit District terminal staff recognized the person in the photo to be
defendant and called police when defendant was at the terminal. Defendant was wearing the same
hoodie seen in the video and admitted to entering the fraternity house. He advised police that he
was forced to take the items.
¶ 13 Defense counsel stated that defendant advised her that he had bad heart issues. She further
indicated that she had nothing further to add to the factual presentation.
¶ 14 The State argued that defendant was not in compliance with pretrial release issued in case
No. [CITATION], which included not committing further offenses, yet defendant continued to
[SEGMENT 2]
commit offenses. The State further argued that defendant had a very long criminal history that
included numerous violent offenses as well as new violent offenses occurring during pretrial
release. The State argued that defendant was dangerous for those reasons as well as his inability to
comply with court orders and therefore there were no conditions the court could impose that would
prevent defendant from committing new offenses. No argument was presented by defense counsel
beyond defendant’s heart condition.
¶ 15 The trial court found the State proved by clear and convincing evidence that the proof was
evident and the presumption great that defendant committed a detainable offense, and no condition
or combination of conditions would mitigate the real and present threat or defendant’s willful
flight. The court found defendant posed a real and present threat to the safety of the community,
noting that defendant admitted going into the fraternity house. The court also noted the pretrial
investigatory report that classified defendant with a VPRAI-R of 13 out of 14 and placed defendant
at the highest possible risk level and “that was understandable given the extensive nature of
defendant’s criminal history.” The court also noted that defendant was under court supervision
when the charge was brought as well as additional pending charges when the incident occurred,
was unemployed, and had a history of substance abuse. The court found that based on that
information, defendant was a danger to the community, had a high likelihood of willful flight, and
that no condition, or combination of conditions, would mitigate the danger defendant posed.
¶ 16 The State then issued its proffer regarding case No. [CITATION]. It asked the court to again
consider the IDOC sentences in the prior domestic battery cases previously mentioned. The State
proffered that on February 5, 2024, that Urbana police officers responded to a domestic situation
Sure, I will process the content you provided to replace court ruling citations with the appropriate tags. However, in the excerpt you provided, there are no explicit court ruling citations to process. If you have other text sections or require further assistance, please provide those. The content provided will remain unchanged as no citations are detected. found the State met its burden, granted its petition to deny pretrial release, and ordered defendant
detained. A no contact order was also issued with regard to the victim.
¶ 18 As to case No. 24-CF-311, the State again asked the court to note the facts related to
defendant’s prior IDOC sentences as well as its presentation in case No. 24-CF-316. As to case
No. 24-CF-311, the State proffered that the incident occurred on February 20, 2024, at the
Marketplace Mall in Champaign, Illinois. On that date, police were dispatched to the mall
regarding a reported violation of an order of protection. The underlying order of protection was
issued in Champaign County case No. 24-OP-134 and involved the same victim as that seen in
case No. 24-CF-316. The victim was at the mall when she began receiving text messages from
defendant. The text messages referenced that defendant could see her and contained threats to her,
as well as her family. The text messages were recorded on an officer’s body-worn camera. The
police located defendant on the east side of the mall parking lot. Defendant admitted being in the
mall earlier and having knowledge of the order of protection but denied contacting the victim.
Defendant was not arrested at the scene because he stated that he was having chest pains and was
transported to the hospital. Defense counsel declined the opportunity to present any factual proffer.
¶ 19 The State argued that defendant had a long history of domestic violence, including
numerous prior convictions and sentences at IDOC for the offense. The State argued that the text
messages contained a threat to the victim and her family. Defendant admitted to knowing about
the order of protection and made statements to the police officer showing his awareness that he
was not to have any contact with the victim. Although defendant denied sending the text messages,
the messages were recorded on the officer’s body-worn camera video. The State argued that GPS
would not prevent any further messaging and defendant was actually near the victim when the
threats were sent and presented a viable threat of harm. The State also argued that GPS did not
address the fact that it occurred in a public place at the mall and that defendant was on pretrial
release at the time the messages were sent. The State argued that because the pretrial release
prohibited defendant from committing additional offenses, but he did so anyway, no condition of
pretrial release would prevent this from happening. The State argued that defendant was a danger
to the victim and others in the community and therefore should be detained. No argument was
presented by defense counsel.
¶ 20 The court found the State proved by clear and convincing evidence that the proof was
evident or the presumption great that defendant committed a detainable offense and that no
condition or combination of conditions could mitigate the real and present threat or willful flight.
The court found defendant committed an offense that was detainable and posed a real and present
threat to the safety of the people of the community as well as the victim, who was protected by
court order and by other orders prohibiting defendant’s contact.
¶ 21 The court found the proof evident and presumption great that defendant made contact with
the victim while she was at the mall by text message and was aware that he could not do this as a
condition of his pretrial release. The court referred to the VPRAI-R which classified defendant at
the highest possible risk, defendant’s numerous pending cases, as well as his prior convictions for
residential burglary and domestic abuse, noting that some charges stemmed from an incident
involving the same victim, and occurred in a relatively short period of time. The court granted the
State’s petition to deny pretrial release and ordered defendant detained. A no contact order was
also issued for the victim in this case.
¶ 22 Following the hearing, the trial court issued three orders finding defendant committed a
detainable offense. In support for case No. 24-CF-316, the order stated:
“Defendant entered a residential building and stole equipment. Defendant confessed, but
claimed he stole the items under duress.”
The trial court’s order also found defendant posed a real and present threat and no condition or
combination of conditions could mitigate defendant’s dangerousness. In support, the order stated,
“He scores on the highest risk level in pretrial services report.”
¶ 23 The second order, issued in case No. 24-CF-315, stated the following:
“February 2024—boyfriend Mr. Barrett was in a car with the victim, he refused to give her
the keys, refused to let her leave, strangled victim who had injuries consistent with victim’s
allegations.”
¶ 24 The third order, in case No. 24-CF-311, stated the following after finding defendant
committed a detainable offense:
“Defendant made contact with [victim] in violation of an order of protection at Marketplace
Mall, Champaign by text message. He did this while on pretrial release.”
The trial court’s order also found defendant posed a real and present threat and no condition or
combination of conditions could mitigate defendant’s dangerousness. In support, the order stated,
“High risk VPRAI. Pending cases significant. History of violent offenses. Threat to a protected
party, defendant admits he knows.”
¶ 25 Defendant timely appealed each of the orders. [CITATION]. Upon motion by the State, this court consolidated the orders for purposes of appeal and
disposition. 1
Pursuant to [CITATION], our decision in this case
was due on or before June 20, 2024, absent a finding of good cause for extending the deadline. Based on
the high volume of appeals under the Act currently under the court’s consideration, as well as the
complexity of issues and the lack of precedential authority, we find there to be good cause for extending
the deadline.
¶ 26 II. ANALYSIS
¶ 27 Pretrial release—including the conditions related thereto—is governed by statute. See Pub.
Act 101-652, § 10-255 (eff. Jan. 1, 2023); Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023). A
defendant’s pretrial release may be denied only in certain statutorily limited situations. 725 ILCS
5/110-6.1 (West 2022). In order to detain a defendant, the State has the burden to prove by clear
and convincing evidence that (1) the proof is evident or the presumption great that the defendant
has committed a qualifying offense, (2) the defendant’s pretrial release poses a real and present
threat to the safety of any person or the community or a flight risk, and (3) less restrictive
conditions would not avoid a real and present threat to the safety of any person or the community
and/or prevent the defendant’s willful flight from prosecution. Id. § 110-6.1(e).
¶ 28 In considering whether the defendant poses a real and present threat to the safety of any
person or the community, i.e., making a determination of “dangerousness,” the trial court may
consider evidence or testimony concerning factors that include, but are not limited to, (1) the nature
and circumstances of any offense charged, including whether the offense is a crime of violence
involving a weapon or a sex offense; (2) the history and characteristics of the defendant; (3) the
[SEGMENT 3]
identity of any person to whom the defendant is believed to pose a threat and the nature of the
threat; (4) any statements made by or attributed to the defendant, together with the circumstances
surrounding the statements; (5) the age and physical condition of the defendant; (6) the age and
physical condition of the victim or complaining witness; (7) whether the defendant is known to
possess or have access to a weapon; (8) whether at the time of the current offense or any other
offense, the defendant was on probation, parole, or supervised release from custody; and (9) any
other factors including those listed in section 110-5 of the Code of Criminal Procedure of 1963
[id. § 110-5]. [CITATION]
¶ 29 To set appropriate conditions of pretrial release, the trial court must determine, by clear
and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the
appearance of a defendant as required or the safety of any other person or the community and the
likelihood of compliance by the defendant with all the conditions of pretrial release.” Id. § 110-
5(a). In reaching its determination, the trial court must consider (1) the nature and circumstances
of the offense charged; (2) the weight of the evidence against the person; (3) the history and
characteristics of the person; (4) the nature and seriousness of the specific, real, and present threat
to any person that would be posed by the person’s release; and (5) the nature and seriousness of
the risk of obstructing or attempting to obstruct the criminal justice process. Id. The statute lists
no singular factor as dispositive. See id.
¶ 30 Our standard of review of pretrial release determinations is twofold. The trial court’s
factual findings are reviewed under the manifest weight of the evidence standard. [CITATION], ¶ 12. “ ‘A finding is against the manifest weight of the evidence only
if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not
based on the evidence presented.’ ” Id. (quoting [CITATION]). We review the trial court’s ultimate determination regarding the denial of pretrial release for an
abuse of discretion. Id. ¶ 11. “An abuse of discretion occurs when the decision of the circuit court
is arbitrary, fanciful, or unreasonable, or when no reasonable person would agree with the position
adopted by the trial court.” Id.; see also [CITATION], ¶ 59. “[I]n reviewing
the circuit court’s ruling for abuse of discretion, we will not substitute our judgment for that of the
circuit court, ‘merely because we would have balanced the appropriate factors differently.’ ”
[CITATION], ¶ 15 (quoting [CITATION]).
¶ 31 All three of defendant’s notices of appeal request reversal of the trial court’s orders denying
him pretrial release. The three notices of appeal provided additional language under each of the
eight potential issues that could be raised in the standard notice of appeal form. 2 Of those eight,
two contained “checked” boxes next to the issues. We shall only consider the “checked issues.”
See [CITATION], ¶ 20. The “checked” issues for all three notices
included: (1) whether the State failed to meet its burden of proving that no condition or
combination of conditions could mitigate defendant’s dangerousness; and (2) whether the court
erred in determining that no condition, or combination of conditions, would reasonably ensure
defendant’s appearance for later hearings or prevent defendant from being charged with a
subsequent felony or Class A misdemeanor. The majority of the typewritten language underneath
either checked issue failed to contain argument specific to the cases or merely provided language
related to the burden of proof required for each issue.
¶ 32 On May 6, 2024, defendant’s counsel on appeal, the Office of the State Appellate Defender,
filed a Rule 604(h) notice filed in lieu of Rule 604(h)(7) memorandum in each case. The notices
stated they were timely filed, this court had jurisdiction of each case, and no memorandum would
be filed.
¶ 33 The State filed a Rule 604(h) memorandum on May 24, 2024. Therein, the State argued
that defendant waived all of his arguments raised on appeal by failing to provide any argument
before the trial court. In the alternative, the State argues that the evidence supported the trial court’s
findings and requests affirmation of the orders denying pretrial release.
This court previously addressed this situation. See [CITATION],
¶¶ 18-26. We again remind trial counsel of the ethical obligations regarding frivolous appeals and the failure
to properly delineate the issues for consideration on appeal.
¶ 34 As noted above, each of defendant’s notices of appeal contained two issues for
consideration. The second issue relates solely to revocation of pretrial release. See 725 ILCS
5/110-6 (West 2022) (dealing solely with revocation or modification of pretrial release conditions
as well as sanctions related to violation of pretrial conditions). Our review of the record reveals
this issue is inapplicable for all three of the cases on appeal. Accordingly, we find this issue has
no merit for any of the cases appealed.
¶ 35 The remaining issue for each of the cases on appeal contends the State failed to show by
clear and convincing evidence that no condition, or combination of conditions, was sufficient to
mitigate defendant’s dangerousness. In support, in addition to addressing the burden of proof, the
typewritten language in all three cases stated, “In this case, the State failed to meet its burden
because there are conditions as set for[th] in 725 ILCS 5/110-10(b) which would mitigate the threat
and/or the willful flight risk.” As noted above, the State argued that defendant waived this issue
by failing to present it to the trial court. In support, the State cites [CITATION], ¶ 38, for the proposition that issues not properly presented or preserved before
the trial court are waived. We find the State’s reliance on [CITATION] unwarranted.
¶ 36 In [CITATION], defendant’s argument on appeal was based on his claim that the trial court
erred in failing to allow him to speak with his counsel during the hearing. Id. As defendant’s
counsel never raised the issue or objected to the trial court’s actions, we found the issue was
forfeited. Id. Here, the issue is the sufficiency of the State’s evidence. “[W]hen a defendant makes
a challenge to the sufficiency of the evidence, his or her claim is not subject to the waiver rule and
may be raised for the first time on direct appeal.” [CITATION] (citing [CITATION]). Accordingly, the issue is not forfeited.
¶ 37 Typically, when considering the sufficiency of the evidence, “the reviewing court must
view the evidence ‘in the light most favorable to the prosecution.’ ” [CITATION] (quoting [CITATION]). “This means the
reviewing court must allow all reasonable inferences from the record in favor of the prosecution.”
Id. In this case, the question becomes, “ ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found’ ” (emphasis in original)
(id. at 278 (quoting [CITATION])) that the State proved by clear and convincing
evidence that no condition, or combination of conditions, would mitigate defendant’s
dangerousness. Each decision is based on its own articulable facts. See 725 ILCS 5/110-6.1(h)(1)
(West 2022).
¶ 38 As stated above, in determining which conditions of pretrial release, if any, would
reasonably ensure the appearance of the defendant, the safety of persons and the community, and
the likelihood of defendant’s compliance with terms of pretrial release, the statute provides factors
for the trial court’s consideration. See id. § 110-5(a). These include, inter alia, (1) the nature and
circumstances of the offense charged, (2) the weight of the evidence against defendant, (3) the
history and characteristics of the defendant, and (4) the nature and seriousness of the real and
present threat to the safety of any person or persons or the community based on the articulable
facts of the case that would be posed by the defendant’s release. Id. Many of these are similar to
those listed in section 110-6.1(g) that address a defendant’s dangerousness. See id. § 110-6.1(g).
As such, there is no legal basis to minimize or ignore the State’s argument addressing the
dangerousness factors when also considering whether it proved that no conditions exist that would
mitigate defendant’s dangerousness.
¶ 39 As to case No. 24-CF-316, the State argued that defendant was not in compliance with
pretrial release conditions issued in Champaign County case No. 23-CF-1636, which included a
condition that prohibited defendant from committing further offenses. The State also noted that
defendant had a very long criminal history that included numerous violent offenses as well as new
violent offenses that occurred during pretrial release. The State argued that defendant was
dangerous for those reasons as well as his inability to comply with court orders and therefore there
were no conditions the court could impose that would prevent defendant from committing new
[SEGMENT 4]
offenses.
¶ 40 The trial court found defendant posed a real and present threat to the safety of the
community. The court also noted the pretrial investigatory report that classified defendant with a
VPRAI-R of 13 out of 14 and placed defendant at the highest possible risk level and that was
understandable given the extensive nature of defendant’s criminal history and the fact that he was
on court supervision when the charge was brought. The court also noted the additional pending
charges when the incident occurred. The court found that, based on that information, no condition
or combination of conditions would mitigate the danger defendant posed.
¶ 41 As to case No. 24-CF-315, the State argued that defendant was previously incarcerated for
his convictions in the prior domestic battery cases. It then proffered that defendant held the victim
against her will at the U-Haul location by refusing to give the victim her keys or allowing her to
leave. The State further proffered that the victim advised the police that she was strangled, beaten,
and feared for her life. The police noted that the victim was crying, visibly shaking, and had had
red marks and bruising on her neck, temple, and throat consistent with the victim’s account of the
incident.
¶ 42 The trial court found that the VPRAI-R classified defendant at the highest risk level
possible. It further found defendant was currently on community supervision at the time of his
arrest and had a history of violent convictions. Based on this information, the court found that no
condition, or combination of conditions, would mitigate defendant’s risk to the victim.
¶ 43 Finally, as to case No. 24-CF-311, the State again argued that defendant had a long history
of domestic violence, including numerous prior convictions and sentences at IDOC for the
offenses. The State also noted the threatening content of the text message to the victim and her
family. The State argued that GPS would not prevent any further messaging and defendant was
actually near the victim when the threats were sent and presented a viable threat of harm. The State
also argued that GPS did not address the fact that it occurred in a public place at the mall and that
defendant was on pretrial release at the time the message was sent that prohibited from committing
additional offenses and admitted knowing that he was prohibited from contacting the victim.
¶ 44 In response, the trial court found that defendant made contact with the victim while she
was at the mall by text message and was aware that he was precluded from such action as a
condition of his pretrial release. The court again referred to the VPRAI-R which classified
defendant at the highest possible risk, defendant’s numerous pending cases, as well as his prior
convictions for residential burglary and domestic abuse, noting that charges stemmed from an
incident involving the same victim, and occurred in a relatively short period of time. Therefore,
the court found that no condition or combination of conditions would mitigate defendant’s
dangerousness to both the victim and the community.
¶ 45 Here, as to all three cases, we note that the conditions of release found in section 110-10
(725 ILCS 5/110-10 (West 2022)) are based on a defendant’s compliance with court ordered
conditions. Given that defendant’s history reveals three separate instances that involved violation
of pretrial release conditions, we cannot find that the State’s reliance on defendant’s violation of
his pretrial supervision conditions was unwarranted. See id. § 110-6(g)(8) (addressing the status
of a defendant at the time the incident occurred). Similarly, the State’s reliance on the VPRAI-R
and defendant’s criminal history was proper. See id. § 110-6(g)(2) (addressing a defendant’s
history and personal characteristics). Accordingly, when considered in conjunction with the
separate details related to each incident, we cannot find that the State failed to prove, by clear and
convincing evidence, that no condition or combination of conditions would mitigate defendant’s
dangerousness for any of the three cases.
¶ 46 We cannot find that the trial court’s findings in each case that no conditions would mitigate
defendant’s dangerousness were against the manifest weight of the evidence. Therefore, we hold
that the trial court’s ultimate dispositions, denying pretrial release in all three cases, were not
abuses of discretion.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated herein, the trial court findings in each case were not against the
manifest weight of the evidence and its ultimate disposition for each case was not an abuse of
discretion. Therefore, we affirm the trial court’s orders.
¶ 49 Affirmed.
2024 IL App (5th) 240367-U
NOTICE
NOTICE
Decision filed 05/31/24. The
This order was filed under
text of this decision may be NO. 5-24-0367
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) No. 24-CF-218
)
JOSEPH D. HOOSIER, ) Honorable
) Brett N. Olmstead,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court.
Justices Boie and McHaney concurred in the judgment.
ORDER
¶1 Held: The trial court’s order granting the State’s petition to deny pretrial release is
affirmed where the trial court’s findings were not against the manifest weight of
the evidence and the order denying pretrial release was not an abuse of discretion.
¶2 Defendant appeals the trial court’s order denying his pretrial release pursuant to Public Act
101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability, Fairness
and Equity-Today (SAFE-T) Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023); [CITATION], ¶ 52 (lifting stay and setting effective date as September 18, 2023). For
the following reasons, we affirm the trial court’s order.
¶3 I. BACKGROUND
¶4 On February 16, 2024, defendant was charged, by information, with aggravated battery
with a firearm, a Class X felony, in violation of section 12-3.05(e)(1) of the Criminal Code of 2012
(720 ILCS 5/12-3.05(e)(1) (West 2022)) and conspiracy to commit robbery, a Class 3 felony, in
violation of sections 18-1(a) and 8-2(a) (id. §§ 18-1(a), 8-2(a)). A warrant for his arrest was entered
the same day. Defendant was arrested on February 27, 2024. On February 28, 2024, defendant was
charged, by information, with a third count of unlawful possession of a weapon by a felon, a Class
2 felony, in violation of section 24-1.1(a) (id. § 24-1.1(a)). The same day the State filed a petition
to deny defendant’s pretrial release.
¶5 A pretrial investigation report was filed on February 28, 2024. The report indicated that
defendant was 46 years old and lived in Champaign, Illinois, for 10 years with his girlfriend. Prior
to that he lived in Chicago, Illinois. He was the father of one child, who was now 29 years old. He
was unemployed but stated that he had an interview at Walmart that day for a stocking position
working third shift. No drug or mental health issues were listed.
¶6 Defendant’s criminal history included convictions in Illinois for unlawful possession of
cannabis by a passenger, leaving the scene of an accident, forgery, manufacture, and delivery of
cannabis 10-30 grams, possession of a controlled substance, manufacture, and delivery of cocaine
30-100 grams, and unlawful possession of a firearm. He also had convictions in Missouri for
operating a motor vehicle without a license, DWI, distribution of a controlled substance, leaving
the scene of an accident, driving while license suspended, and driving with license revoked. The
Virginia Pretrial Risk Assessment Revised (VPRAI-R) classified defendant as a 4 out of 14 on the
scale that equated to a level 2 (out of 6) or 9.8% risk for recidivism if released pretrial.
¶7 The trial court proceeded on the State’s petition on February 29, 2024. The State proffered
that the victim resided out of state where he had a legal cannabis dispensary business. The victim
travelled to Champaign for business and to visit his adult children. On December 22, 2023, the
victim met with an individual who suggested he provide samples of his cannabis business and
there was a brief telephone conversation. The victim indicated that he was not interested and
[SEGMENT 5]
thought the matter was done. During that contact, the victim indicated that he was going to the car
wash in Mahomet and individuals, including defendant, knew he was travelling with cannabis
and/or cash.
¶8 Based on video obtained by the police, defendant and two other individuals appeared as if
they were getting ready to “close in” on the victim at the car wash. Defendant and his codefendants
approached the victim and grabbed him from behind. The victim struggled. Defendant was in
possession of a handgun. The victim managed to get free and tried to get in his vehicle when
defendant shot the victim twice in the side. Two .45-caliber shell casings were found at the scene.
The victim was able to get to his car, flee, and call his daughter, who took him to the hospital. The
hospital called the police.
¶9 Defendant is later seen on video walking in an outdoor supply store next to a retail area
and possessing a handgun consistent with that described by the victim. He concealed the handgun
under some stacked materials before noticing a camera. He then turned around and recovered the
firearm. Two other witnesses provided statements consistent with that of the victim. The victim
was provided a blind array of photographs and immediately named defendant as the shooter. Two
vehicles driven by the alleged co-conspirators were later located by police and those people were
interviewed by police. One of the alleged co-conspirators denied being in Mahomet. The other
admitted he was there to meet the victim with defendant and that he remained in the car. He
indicated that he knew there was a deal discussed but did not know it would involve a shooting.
The first co-conspirator eventually admitted that the other co-conspirator’s account was accurate
and affirmatively stated he was not the shooter “but if he told what his intent was it would make
things worse for him.” He stated that he rode alone to the meeting place and later met up with
defendant and the other co-conspirator. The State proffered that the car wash video was reviewed
either the same day or shortly thereafter and the license plates of the vehicles driven by the alleged
assailants were seen in the video.
¶ 10 Defense counsel proffered that defendant lived in Champaign for the last 10 years with his
fiancée. She recently underwent surgery and required additional surgery on her knee. Defendant
was helping her greatly with her recovery and her physical needs. Defendant was not currently
employed but had a job interview at Walmart and, despite missing the interview, received a call
back for employment. He also received a call back from Meijer for employment, indicating he had
employment opportunities. Counsel stated it would not minimize defendant’s criminal history but
stated the most significant brush with the law in the last four years was a forgery case.
¶ 11 The State argued about the seriousness of the offense and the evidence revealing defendant
was involved in the conspiracy to commit the crime and was a danger in that regard not only to
the victim, but to anybody in the community. The State argued that defendant had six prior felonies
and four Illinois Department of Corrections sentences. The State further argued that the only reason
defendant only had one felony in the last 10 years was because defendant was in prison for 15
years, so he did not have the opportunity to commit more felonies during that period. The State
noted that drugs were involved, and defendant had five prior convictions involving drugs including
four felonies and one DUI involving drugs. The State also noted defendant’s previous conviction
for possession of a firearm. The State argued that defendant was dangerous and asked that pretrial
release be denied.
¶ 12 Defense counsel proffered that the evidence was “quite a bit more attenuated” than argued
by the State. He stated that defendant was not identified in the video. While both co-conspirators
stated they were not the shooter, counsel was unaware as to whether only one or both indicated
defendant was the shooter. He said there was video from the car wash and the supply store, but the
length of time between the videos was unknown and it was unclear if defendant was wearing the
same clothes. He stated the evidence was not clear and convincing. Counsel further acknowledged
defendant’s lengthy criminal record but stated he was released in 2014 and other than the forgery
case in 2018, there was nothing to be seen. Counsel stated defendant was a longtime resident of
the area, had job prospects available, and a fiancée who depended on him. He was willing to agree
to home confinement, GPS, or whatever the court ordered, but should be released with pretrial
conditions.
¶ 13 The court addressed the proffers and noted that the victim identified defendant as the
shooter, there was video from both the car wash and the supply store, and defendant was a felon.
Therefore, it found that the State proved, by clear and convincing evidence, that defendant
committed a qualifying offense, namely counts I and III, involving aggravated battery with a
firearm and unlawful possession of a weapon by a felon. The court also addressed whether
defendant posed a real and present threat to any person or the community. It did not find that
defendant was a threat to the victim but did find he was a threat to the community. The court
recognized that defendant had been in Champaign for 10 years and was helping his fiancée
following her surgery. It further noted that defendant’s criminal history was in the past, but it could
not be ignored, noting that defendant had eight felony convictions and six prior prison sentences.
It noted that the prior possession of a weapon felony resulted in a probation sentence that went
unsatisfied. Defendant’s criminal convictions included a 15-year sentence for a drug charge, and
he was released around 2015. Thereafter, he had a nonviolent forgery charge in 2018 and a
possession of cannabis charge from 2020 for which he received probation, but that probation was
not satisfied either. The court continued stating:
“Now with that record and that experience with both community-based sentences,
a felony conviction based solely on his possession alone of a firearm. The experience he’s
had serving multiple prison sentences, the pretrial risk assessment score of 4 grossly
understates what’s happening here. What’s happened is a person who has been through a
lot in life and has had opportunity after opportunity that ought to have been providing
deterrence to commit an offense is now in possession of a firearm, participates in an attempt
robbery, and during that shoots the Mr.—the alleged victim, *** in the side, aggravated
discharge of the firearm and then tries to hide the weapon, sees the camera and realizes that
that hiding place won’t work, retrieves it, has chosen another one, and the firearm’s gone.
The court’s considered and rejected GPS monitoring too. That’s not doing it. The State’s
proven by clear and convincing evidence that there’s no condition or combination of
conditions that can mitigate the real and present threat that Mr. Hoosier poses to community
safety. The State’s request for pretrial detention is granted.”
¶ 14 Following the hearing, the trial court issued an order finding defendant committed a
detainable offense. In support, the order stated,
“On December 22, 2023, the alleged victim mentioned during conversation that he operates
a legal cannabis dispensary and was traveling to a car wash in Mahomet. When he arrived
there, video showed other vehicles arrive and park in several different areas, as if having
followed him and targeting him. That video, supported by witnesses, showed individuals
including defendant Mr. Hoosier approach the victim and grab him from behind, the victim
struggle[d] and get[s] free and Mr. Hoosier shoots the victim in the side with a firearm.
Later that same day video at a supply store showed Mr. Hoosier pull a handgun and hide it
under stacked materials then sees the camera and retrieve[s] the gun and leave[s]. The
victim immediately picked out Mr. Hoosier in a blind photo array as the person who shot
him[,] and the two co-defendants admitted that defendant was present at the shooting but
neither of them was the shooter. Mr. Hoosier is a convicted felon as alleged.”
¶ 15 The trial court’s order also found defendant posed a real and present threat and no condition
or combination of conditions could mitigate defendant’s dangerousness. In support, the order
stated,
“Mr. Hoosier has eight felony convictions between Illinois and Missouri including six
prison sentences and a prior gun felony, for which he received Probation/Boot Camp that
was terminated unsatisfied. From 1999-2002 he had a series of three drug felonies and was
sent to prison for each, then had a significant period of time with no convictions. But then
in 2018 he was convicted of Forgery (3), in that same year he received a disposition for
Leaving the Scene (A), and in 2020 he received Court Supervision for a Class A cannabis
charge that was terminated unsatisfied. With all of that experience with the criminal justice
system and serious consequences, the State now has clear and convincing evidence,
supported by video, that Mr. Hoosier conspired with others to rob a cannabis dispensary
owner, armed himself with a firearm he could not lawfully possess, shot the victim in the
course of the robbery, then took action to hide the gun, which still has not been found. He
has strong ties to the community, work prospects, ongoing medical needs, and a low risk
assessment score, but a long history of serious deterrent measures have not worked[,] and
[SEGMENT 6]
the risk assessment fails to properly account for the nature of that history and the specific
facts of the currently charged crimes. No conditions of release can mitigate the real and
present threat Mr. Hoosier poses to community safety.”
Defendant timely appealed. Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023). 1
¶ 16 II. ANALYSIS
¶ 17 Pretrial release—including the conditions related thereto—is governed by statute. See Pub.
Act 101-652, § 10-255 (eff. Jan. 1, 2023); Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023). A
defendant’s pretrial release may be denied only in certain statutorily limited situations. 725 ILCS
5/110-6.1 (West 2022). In order to detain a defendant, the State has the burden to prove by clear
and convincing evidence that (1) the proof is evident or the presumption great that the defendant
has committed a qualifying offense, (2) the defendant’s pretrial release poses a real and present
threat to the safety of any person or the community or a flight risk, and (3) less restrictive
conditions would not avoid a real and present threat to the safety of any person or the community
and/or prevent the defendant’s willful flight from prosecution. Id. § 110-6.1(e).
¶ 18 In considering whether the defendant poses a real and present threat to the safety of any
person or the community, i.e., making a determination of “dangerousness,” the trial court may
consider evidence or testimony concerning factors that include, but are not limited to, (1) the nature
and circumstances of any offense charged, including whether the offense is a crime of violence
involving a weapon or a sex offense; (2) the history and characteristics of the defendant; (3) the
identity of any person to whom the defendant is believed to pose a threat and the nature of the
threat; (4) any statements made by or attributed to the defendant, together with the circumstances
surrounding the statements; (5) the age and physical condition of the defendant; (6) the age and
physical condition of the victim or complaining witness; (7) whether the defendant is known to
Pursuant to Illinois Supreme Court Rule 604(h)(5) (eff. Dec. 7, 2023), our decision in this case
was due on or before May 28, 2024, absent a finding of good cause for extending the deadline. Based on
the high volume of appeals under the Act currently under the court’s consideration, as well as the
complexity of issues and the lack of precedential authority, we find there to be good cause for extending
the deadline.
possess or have access to a weapon; (8) whether at the time of the current offense or any other
offense, the defendant was on probation, parole, or supervised release from custody; and (9) any
other factors including those listed in section 110-5 of the Code of Criminal Procedure of 1963
(id. § 110-5). Id. § 110-6.1(g).
¶ 19 To set appropriate conditions of pretrial release, the trial court must determine, by clear
and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the
appearance of a defendant as required or the safety of any other person or the community and the
likelihood of compliance by the defendant with all the conditions of pretrial release.” Id. § 110-
5(a). In reaching its determination, the trial court must consider (1) the nature and circumstances
of the offense charged; (2) the weight of the evidence against the person; (3) the history and
characteristics of the person; (4) the nature and seriousness of the specific, real, and present threat
to any person that would be posed by the person’s release; and (5) the nature and seriousness of
the risk of obstructing or attempting to obstruct the criminal justice process. Id. The statute lists
no singular factor as dispositive. See id.
¶ 20 Our standard of review of pretrial release determinations is twofold. The trial court’s
factual findings are reviewed under the manifest weight of the evidence standard. [CITATION],
¶ 12. “ ‘A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not
based on the evidence presented.’ ” Id. (quoting [CITATION]). We review the trial court’s ultimate determination regarding the denial of pretrial release for an
abuse of discretion. Id. ¶ 11. “An abuse of discretion occurs when the decision of the circuit court
is arbitrary, fanciful, or unreasonable, or when no reasonable person would agree with the position
adopted by the trial court.” Id.; see also [CITATION], ¶ 59. “[I]n reviewing
the circuit court’s ruling for abuse of discretion, we will not substitute our judgment for that of the
circuit court, ‘merely because we would have balanced the appropriate factors differently.’ ”
[CITATION]
¶ 21 Defendant’s notice of appeal requests reversal of the trial court’s order denying him pretrial
release. The notice of appeal provided additional language under each of the eight potential issues
that could be raised in the standard notice of appeal form. 2 Of those eight, three contained
“checked” boxes next to the issue. The “checked” issues included: (1) whether the State failed to
meet its burden of proving that the proof was evident or the presumption great that defendant
committed the qualifying offense charged; (2) whether the State failed to meet its burden of
showing defendant posed a real and present threat to the safety of any person(s) or the community;
and (3) whether the State failed to meet its burden of proving that no condition or combination of
conditions could mitigate defendant’s dangerousness. None of the typewritten language
underneath each checked issue contained argument specific to this case and instead merely
provided language related to the burden of proof required for each issue.
¶ 22 On April 22, 2024, defendant’s counsel on appeal, the Office of the State Appellate
Defender (OSAD), filed a Rule 604(h) memorandum. The memorandum addressed only the last
two issues “checked” by defendant in his notice of appeal. No argument was presented as to the
first issue that addressed whether the proof was evident or the presumption great that defendant
committed the offenses charged.
This court previously addressed this situation. See [CITATION]
¶¶ 18-26. We again remind trial counsel of the ethical obligations regarding frivolous appeals and the failure
to properly delineate the issues for consideration on appeal.
====== End of Part of a Court Ruling ====== ¶ 23 The State filed a Rule 604(h) memorandum on May 10, 2024. Therein, the State ignores
our standard of review (see [CITATION]) and instead claims
our review is solely limited to determining whether the trial court’s order denying pretrial release
was an abuse of discretion. As such, the memorandum is largely irrelevant.
¶ 24 As noted above, defendant’s notice of appeal contained three issues for consideration, but
OSAD’s Rule 604(h)(2) memorandum only addressed two of those issues. In [CITATION], this
court held that when a supporting Rule 604(h) memorandum is filed, it becomes “the controlling
document for issues or claims on appeal” and the notice of appeal would not be used to “seek out
further arguments not raised in the memorandum” unless jurisdiction was raised as an issue. [CITATION].
Other appellate districts have also adopted this
holding. See [CITATION]. Here, OSAD’s memorandum contains no argument for the first issue raised
by defendant in his notice of appeal. Accordingly, we hold that the first issue, initially raised by
defendant in his notice of appeal, was abandoned by his appellate counsel. [CITATION]. As such this court is left with two issues to consider: (1) whether the
State proved, by clear and convincing evidence, that defendant posed a real and present threat to
the safety of any person(s) or the community; and (2) whether the State proved, by clear and
convincing evidence, that no condition, or combination of conditions, could mitigate defendant’s
real and present threat to the safety of any person(s) or the community.
¶ 25 OSAD argues that the State failed to prove that defendant posed a danger to any person(s)
or the community beyond relying on defendant’s current charges. We disagree. Each decision must
be based on its own articulable facts. See 725 ILCS 5/110-6.1(h)(1) (West 2022). Typically, when
considering the sufficiency of the evidence, “the reviewing court must view the evidence ‘in the
light most favorable to the prosecution.’ ” [CITATION] (2004)
(quoting [CITATION] (1979)). “This means the reviewing court must
allow all reasonable inferences from the record in favor of the prosecution.” Id. In this case, the
question becomes, “ ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found’ ” (emphasis in original) (id. at 278 (quoting
[CITATION])) that the State proved by clear and convincing evidence that defendant
[SEGMENT 7]
posed a real and present threat to any person(s) or the community.
¶ 26 As noted above, the statute provides factors for the trial court’s consideration in
determining dangerousness. Included in those factors are the “nature and circumstances of any
offense charged, including whether the offense is a crime of violence, involving a weapon, or a
sex offense.” 725 ILCS 5/110-6.1(g)(1) (West 2022). Here, it is undisputed that one of the offenses
charged involved a crime of violence and the other involved a weapon. The second factor involves
defendant’s history and characteristics. Id. § 110-6.1(g)(2). This includes defendant’s prior
criminal and social history that may reveal a potential of violence. Here, the State presented
argument about defendant’s prior criminal history and noted that history included a crime
involving a weapon. The State also noted that defendant had six prior felony convictions in Illinois
and served prison sentences related to those felonies. Under these articulable facts, we find that
the State presented sufficient clear and convincing evidence that defendant posed a danger to the
community. Accordingly, we hold that the trial court’s finding of dangerousness was not against
the manifest weight of the evidence.
¶ 27 OSAD’s second issue involves the State’s obligation to show that no condition, or
combination of conditions, would mitigate defendant’s dangerousness. It first argues that the State
failed to prove, by clear and convincing evidence, that no condition, or combination of conditions,
====== End of Part ====== would mitigate defendant’s dangerousness. Citing [CITATION],
¶ 26, OSAD argues that the “State never argued that available conditions of release were
insufficient” and contends the State was required to provide proffered facts or other competent
evidence on the issue.
¶ 28 Again, the issue is one of evidentiary sufficiency. The question thus becomes, “ ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found’ ” (emphasis in original) ([CITATION] (quoting [CITATION])) that the State proved by clear and convincing evidence that no condition, or
combination of conditions, would mitigate defendant’s dangerousness.
¶ 29 As stated above, in determining which conditions of pretrial release, if any, would
reasonably ensure the appearance of the defendant, the safety of persons and the community, and
the likelihood of defendant’s compliance with terms of pretrial release, the statute provides factors
for the trial court’s consideration. See 725 ILCS 5/110-5(a) (West 2022). These include inter alia
(1) the nature and circumstances of the offense charged, (2) the weight of the evidence against
defendant, (3) the history and characteristics of the defendant, and (4) the nature and seriousness
of the real and present threat to the safety of any person or persons or the community based on the
articulable facts of the case that would be posed by the defendant’s release. Id. Many of these are
similar to those listed in section 110-6.1(g) that address a defendant’s dangerousness. See id.
§ 110-6.1(g). Contrary to OSAD’s claim, the State presented evidence on this issue when it
presented evidence on the overlapping factors.
¶ 30 Here, the State contended that no condition, or combination of conditions, existed that
would mitigate defendant’s dangerousness. This statement was presented immediately after the
State addressed the current charges, defendant’s prior criminal history that included a charge
similar to that currently pending, and his inability to comply with previously issued restrictions,
notably his possession of a firearm despite his status as a felon. The conditions of release found in
section 110-10 (id. § 110-10) are based on a defendant’s compliance with court-ordered
conditions. Given that defendant’s history reveals an admitted failure to comply with statutory
conditions related to firearm possession, we cannot find that the State failed to prove, by clear and
convincing evidence, that no condition or combination of conditions would mitigate defendant’s
dangerousness.
¶ 31 OSAD further argues that, “if the court was concerned about [defendant] possessing a gun
while on pretrial release, the court could have ordered that [defendant] surrender any guns in his
possession and refrain from possessing any guns while on pretrial release.” OSAD further argues
that “there was no evidence at the hearing that [defendant] had ever violated similar conditions in
the past.”
¶ 32 We again disagree. Here, there was ample evidence before the court to reasonably infer,
based on both the proffer and argument presented by the State, that no conditions, or combination
of conditions, would mitigate defendant’s dangerousness to the community. The court could
reasonably infer that defendant would not refrain from possessing a firearm or other dangerous
weapon when defendant’s history and the current charges confirmed that he previously ignored,
and continued to ignore, said prohibition. While OSAD argues that defendant “successfully
completed multiple terms of mandatory supervised release and a term of conditional discharge,”
the record reveals that at least two of defendant’s prior convictions, including one for possession
of a weapon, were “unsatisfactorily terminated.” Contrary to OSAD’s claim, we disagree that the
record fails to support the trial court’s conclusion that defendant would not comply with conditions
of release. As noted by the trial court, defendant had “experience with the criminal justice system
The provided part of the court ruling does not contain any specific court ruling citations. Therefore, no modifications are necessary.
Here's the text, verified:
```
and serious consequences” related to his prior offenses, yet he continued to engage in actions that
could result in an additional prison sentences, therefore undermining any inference that pretrial
conditions, or combination of conditions, would mitigate defendant’s dangerousness. Accordingly,
we find that the State’s proffer was sufficient to provide clear and convincing evidence that no
condition, or combination of conditions, would mitigate defendant’s dangerousness.
¶ 33 Based on the evidence presented, we cannot hold that the court’s finding that defendant
posed a real and present threat to the community and no condition, or combination of conditions,
would mitigate defendant’s dangerousness to the community was against the manifest weight of
the evidence or its decision to revoke pretrial release was an abuse of discretion.
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated herein, the trial court findings were not against the manifest weight
of the evidence and its ultimate disposition was not an abuse of discretion. Therefore, we affirm
the trial court’s order.
¶ 36 Affirmed.
```
2024 IL App (5th) 240393-U
NOTICE
NOTICE
Decision filed 05/23/24. The
This order was filed under
text of this decision may be NO. 5-24-0393
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jefferson County.
)
v. ) No. 24-CF-52
)
DEWAYNE E. CORBETT, ) Honorable
) Jerry E. Crisel,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Justices Barberis and Boie concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order denying the defendant’s motion to reconsider his pretrial
detention is affirmed where the circuit court properly conducted the hearing via
Zoom video conference.
¶2 The defendant, Dewayne E. Corbett, appeals the March 13, 2024, order of the circuit court
of Jefferson County that denied the defendant’s oral motion to reconsider pretrial release. For the
following reasons, we affirm the circuit court’s order.
¶3 I. BACKGROUND
¶4 On February 21, 2024, the defendant was charged with one count of attempted residential
burglary, a Class 2 felony, and one count of criminal damage to property, a Class A misdemeanor.
On February 22, 2024, the State filed a verified petition to deny the defendant pretrial release. The
same day, the circuit court held a hearing on the State’s petition to deny the defendant pretrial
release. The defendant was present in person for this hearing and was represented by counsel.
Following the hearing, the circuit court entered a written order denying the defendant pretrial
release. The defendant did not appeal this order.
¶5 On February 28, 2024, the defendant appeared in person before the circuit court for his
arraignment. The defendant waived a formal arraignment and entered a plea of not guilty. The
circuit court set the matter for a pretrial conference on March 13, 2024.
¶6 On March 13, 2024, the matter was set for a pretrial conference. The defendant was in
custody and appeared by Zoom video conference. The defendant, through counsel, made an oral
motion to be heard regarding the defendant’s ongoing detention. Counsel argued that the
[SEGMENT 8]
defendant’s pretrial detention should be reconsidered due to a change in circumstances. Counsel
argued that the defendant had been diagnosed with Crohn’s disease prior to his arrest. The
defendant alleged that he was not receiving proper treatment for his Crohn’s disease while in
detention. The defendant complained of intense pain in his stomach and abdominal area as well as
bloody stool. Counsel was unable to present any evidence of the diagnosis to the court and agreed
that the foregoing was based on the self-reporting of the defendant. The State noted that the
presentence investigation report indicated that the defendant did not provide any medical history
other than his history of methamphetamine use. Additionally, the defendant reported that he had
been homeless for six months prior to his detention. Following argument, the circuit court made
an oral pronouncement denying the motion for reconsideration of the defendant’s pretrial detention
and recorded same in a docket entry.
¶7 The following day, the defendant filed a timely notice of appeal. The Office of the
Appellate Defender (OSAD) was appointed to represent the defendant in this appeal and filed a
memorandum in support of the Rule 604(h) appeal ([CITATION]).
¶8 II. ANALYSIS
¶9 On appeal, OSAD filed a Rule 604(h) memorandum in support of the defendant’s appeal
that argued one issue for review—whether the trial court erred by conducting the March 13, 2024,
hearing via Zoom conference rather than in person. This is a different issue than those asserted by
the defendant in his notice of appeal using the standardized notice of appeal form. We will consider
only the issue raised in the defendant’s supporting memorandum. “[I]f a memorandum is filed, it
will be the controlling document for issues or claims on appeal and we will not reference the notice
of appeal to seek out further arguments not raised in the memorandum, except in limited
circumstances, e.g., to determine jurisdiction.” [CITATION], ¶ 42.
¶ 10 The sole issue raised in the defendant’s memorandum is that the circuit court erred in
conducting the defendant’s continued detention hearing via a Zoom conference instead of in
person, purportedly in violation of section 110-6.1(f)(3.5) of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/110-6.1(f)(3.5) (West 2022)).The applicable standard of review when
we review the circuit court’s interpretation and compliance with a statute involves a question of
law which we review de novo. [CITATION], 559 (2008).
¶ 11 The State notes that the defendant forfeited review of this issue by failing to object to the
procedure in the circuit court. The defendant concedes that the alleged error was unobjected to,
but he alleges we should review the matter under a plain-error analysis. “[F]orfeiture is a limitation
on the parties and not the reviewing court, and we may overlook forfeiture where necessary to
obtain a just result or maintain a sound body of precedent.” [CITATION]
132357, ¶ 65. We elect to overlook forfeiture in this instance to maintain a sound body of
precedent.
¶ 12 The defendant argues that the circuit court violated section 110-6.1(f)(3.5) of the Code by
conducting the hearing on his motion to reconsider via Zoom video conference. The relevant
portion of the Code states as follows:
“A hearing at which pretrial release may be denied must be conducted in person (and not
by way of two-way audio visual communication) unless the accused waives the right to be
present physically in court, the court determines that the physical health and safety of any
person necessary to the proceedings would be endangered by appearing in court, or the
chief judge of the circuit orders use of that system due to operational challenges in
conducting the hearing in person. Such operational challenges must be documented and
approved by the chief judge of the circuit, and a plan to address the challenges through
reasonable efforts must be presented and approved by the Administrative Office of the
Illinois Courts every 6 months.” 725 ILCS 5/110-6.1(f)(3.5) (West 2022).
¶ 13 The State argues that the hearing and order from which the defendant appeals is not
required to be in person based on the aforementioned section. We agree with the State. Section
110-6.1(f)(3.5) involves “[a] hearing at which pretrial release may be denied.” Id. In this case, the
defendant already had an in-person hearing on February 22, 2024, at which time his pretrial release
was denied. The hearing that was conducted on March 13, 2024, was scheduled as a pretrial
conference. It was at that time that the defendant, through his counsel, made an oral motion to
reconsider the defendant’s pretrial release. This hearing was a subsequent hearing under section
110-6.1.
¶ 14 Further, if we were to assume the hearing that the defendant complains of was a “hearing
at which pretrial release may be denied,” a review of the entire section reveals an exception if
“the chief judge of the circuit orders use of that system due to operational challenges in
conducting the hearing in person. Such operational challenges must be documented and
approved by the chief judge of the circuit, and a plan to address the challenges through
reasonable efforts must be presented and approved by the Administrative Office of the
Illinois Courts every 6 months.” 725 ILCS 5/110-6.1(f)(3.5) (West 2022).
An order of the Illinois Supreme Court entered in M.R. 31888 on August 30, 2023, permits these
“hearings to be conducted by two-way audiovisual communication systems if, among other
exceptions, the chief judge of the circuit orders the use of those systems due to operational
challenges in conducting the hearings in person.” On September 15, 2023, the chief judge of the
Second Judicial Circuit entered Administrative Order No. 2023023, which “approve[d] the
operational challenges as documented by Illinois Supreme Court Order M.R. 31888 entered on
August 30, 2023, and orders the use of two-way audio-visual communication systems within the
Second Judicial Circuit for purposes of conducting any hearings related to pretrial detention or
conditions of pretrial release were necessary.”
¶ 15 Accordingly, the circuit court did not err in conducting the hearing on the defendant’s
motion to reconsider his pretrial detention via Zoom video conference pursuant to the
aforementioned administrative orders. At this point, we find it prudent to remind counsel of their
ethical obligations regarding frivolous appeals. See [CITATION],
¶¶ 18-26.
¶ 16 Yet another reason that the defendant’s appeal must fail is that the defendant invited the
error he now seeks to complain of. At the beginning of the Zoom video conference, the defendant,
through his counsel, requested to be heard on a motion to reconsider the defendant’s pretrial
release—a request for the hearing to be scheduled at a later time, in person, was not made. “Under
the doctrine of invited error, an accused may not request to proceed in one manner and then later
contend on appeal that the course of action was in error.” [CITATION]. The hearing that occurred via Zoom video conference at the defendant’s request precludes
the defendant from raising such course of conduct as error on appeal. Id.
¶ 17 III. CONCLUSION
¶ 18 For the reasons stated herein, the circuit court did not err in conducting the March 13, 2024,
hearing via Zoom video conference. Therefore, we affirm the circuit court’s order of March 13,
2024.
¶ 19 Affirmed.
2024 IL App (5th) 240167-U
NOTICE
NOTICE
Decision filed 04/24/24. The
This order was filed under
text of this decision may be NO. 5-24-0167
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) No. 24-CF-96
)
DANTE FREEMAN, ) Honorable
) Brett N. Olmstead,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court.
Justices Barberis and Boie concurred in the judgment.
ORDER
¶1 Held: The trial court’s order granting the State’s petition to deny pretrial release is
affirmed where the trial court did not abuse its discretion in denying defendant’s
request to confer with his appointed counsel while the court was issuing its ruling.
¶2 Defendant timely appeals the trial court’s order denying his pretrial release pursuant to
Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability,
Fairness and Equity-Today (SAFE-T) Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023);
[SEGMENT 9]
[CITATION], ¶ 52 (lifting stay and setting effective date as September 18, 2023). For the following reasons we affirm the trial court’s order.
¶3 I. BACKGROUND
¶4 On January 23, 2024, defendant was charged by information with four counts of predatory
criminal sexual assault of a child in violation of section 11-1.40(a)(1) of the Criminal Code of
2012 (720 ILCS 5/11-1.40(a)(1) (West 2022)), all Class X felonies. The same day, the State filed
a petition to deny defendant pretrial release. Defendant was appointed counsel and the State’s
petition was continued until January 25, 2024.
¶5 The pretrial investigation report was filed on January 23, 2024, and stated that defendant
was 31 years old, divorced, and reported having five daughters. He lived in Rantoul, Illinois,
following his father’s death three years ago. He stated he had no family in the area. He reported
having reliable transportation that would allow him to be present for all court hearings. He had a
bachelor’s degree and worked full time as a cashier and packer at KFC and was enrolled in truck
driving school with 15 hours left until completion. His medical issues stemmed from complications
of being shot 17 times. He was scheduled for surgery on February 10, 2024, to remove the bullets.
He reported no history of drug abuse or mental health issues.
¶6 The report indicated that defendant was currently on probation in Champaign County case
No. 22-CF-433 and was on conditional discharge in Champaign County case No. 22-CM-139.
Defendant scored a 5 out of a possible 14 on the Virginia Pretrial Risk Assessment Instrument-
Revised (VPRAI-R) which classified him as a level 3 out of 6 risk for possible violations of pretrial
release conditions. His criminal history included public indecency/lewd exposure on August 9,
2023, for which he was on conditional discharge and resisting a peace officer from September 27,
2022, for which he received probation. Additional criminal cases included obstructing
identification, interference with a report of domestic violence, and domestic assault.
¶7 On January 25, 2024, defendant was charged with a fifth count of predatory criminal sexual
assault of a child in violation of 11-1.40(a)(1) of the Criminal Code of 2012 (720 ILCS 5/11-
1.40(a)(1) (West 2022)), a Class X felony. Prior to the pretrial hearing, the trial court advised
defendant as to how the hearings would proceed, and the effect of the orders—whether for
conditional release or denial of pretrial release—as well as any consequences related to violation
of a pretrial release order. The court stated, “During your hearing, you have the right to speak with
your lawyer.” The court explained that despite the fact that defendant was appearing by video, he
simply needed to raise his hand and speak up to get the court’s attention. Thereafter, the court
would pause the hearing and put the parties in a private location so defendant could speak with
counsel. The court also advised defendant of his appeal rights stemming from any pretrial release
order. Defendant’s case was called, and he was provided the option of either standing or sitting in
front of the monitor. The court noted that defendant’s appointed counsel, Ms. Wilson, was in the
courtroom.
¶8 The court first noted that a fifth charge of predatory criminal assault of a child was filed
and read the fifth charge, along with the potential penalties, to defendant. Following the recitation,
defendant asked the court if that count would be in the same court and added with the other four.
The court answered affirmatively. The State and defense counsel advised the court that they had
no additions or corrections to the pretrial investigative report.
¶9 The State started its proffer by addressing defendant’s criminal history. As to the
obstruction of identification case, the State proffered that a public indecency charge was dismissed
as part of the plea for obstruction. The facts related to those two charges revealed that defendant
went to Walmart, exposed himself to a worker, addressed the size of his penis, and later lied about
his name when he was arrested. The State then proffered a second criminal case involving public
indecency and the defendant. In that case, defendant stood naked in a window on the route a 13-
year-old girl took to get to the bus stop. Defendant would masturbate while the girl walked by.
This happened multiple times and eventually the girl took a video of defendant because she knew
he was going to do it. The State advised that this incident occurred at the same address where the
current charges occurred, and defendant was on conditional discharge for the public indecency
case when the current charges were filed.
¶ 10 The State further proffered that in addition to those cases, defendant was charged with a
Class 4 felony while on probation in [CITATION]. In that case,
defendant fought with officers when they tried to tow his car and defendant ended up injuring one
of the officers. Defendant also had another case in which he was charged with public indecency
stemming from December 27, 2023. In that case, defendant entered a Dollar General Store and
exposed his genitals to the clerk while walking around the store. Police were called and defendant
was given notice to appear in court for that case on February 7, 2024.
¶ 11 The State then moved to the current case, which involved incidents stemming from
December 2023 through January 2024. The State proffered that the victim in this case was nine
years old and her mother was defendant’s girlfriend. The victim and her mother lived with
defendant. On January 6, 2024, the victim moved to her aunt’s house because she had been getting
into trouble at school and by living with her aunt would be able to enroll at a different school. The
aunt noticed some odd, sexualized behavior, including spooning with another child, so she asked
the victim about this. The victim then told her aunt about defendant’s actions. The victim later
went to a Sexual Assault Nurse Examiner (SANE) for a sexual assault examination. The victim
stated that defendant touched her vagina, or penetrated her vagina, with different sex toys. She
also stated that defendant left mucus-like stuff on her buttocks. The victim was forced to perform
oral sex on defendant and defendant performed oral sex on her. He also showed her pornography
on his phone. The victim was able to provide the specific pornographic web address. The victim
stated defendant did this to her when her mother was either asleep or in the shower. She stated that
defendant threatened to beat her if she told anyone. The victim further stated that the daughter of
defendant’s ex-girlfriend, who was of similar age, used to visit and similar touching went on with
her. A search warrant was executed on the residence and at least one of the sex toys described by
the victim was found. The defendant was detained. The victim’s mother stated that defendant
introduced the sex toys to her as a Christmas present and admitted she had a sex toy similar to the
other sex toy described by the victim. She further stated that her daughter came to her with the
pornographic websites, and she confronted defendant about it, but he stated it was just an accident
and said he left his phone open with the website and the victim happened to pick it up.
¶ 12 The State proffered that defendant was interviewed in custody and provided conflicting
statements. He stated that his penis was inoperable, and he could not ejaculate. This was
inconsistent with the fact that he fathered seven children.
¶ 13 The State further proffered that the victim was interviewed at the Child Advocacy Center
(CAC). She was visibly upset and asked repeatedly if defendant was in jail. She was fearful of him
and further stated that defendant made her touch his penis. She also confirmed the sex toys and
defendant’s threat. Ultimately, the interview had to be stopped because the victim became so
emotional.
¶ 14 Finally, the State proffered that when defendant was taken to jail, a baggy containing
approximately one gram of powdered cocaine was found hidden in his mouth. After defendant was
advised as to the charges, he became suicidal, started smashing walls, and asked to be handcuffed
behind his back so he could not harm himself.
¶ 15 Defense counsel advised the court that she had no factual presentation. She only had
argument.
¶ 16 The State argued that defendant was a danger to anyone around him, especially young
children. He exhibited a pattern of exposing himself to people in public and could not control his
sexual behaviors. The victim’s statements were corroborated by evidence and other witnesses, and
it appeared there would also be another victim. The State argued that this was a nonprobationable
charge. The State further argued that defendant was on conditional discharge for a disturbing
incident, “not as horrific as the one he’s charged with,” and was on probation for injuring a police
officer when this happened. The State requested the court, for the protection of the public, the
victim, the witnesses, and even himself, that defendant be detained.
¶ 17 Defense counsel stated that it wanted the court to take into consideration additional issues
related to defendant. Counsel advised that defendant was gainfully employed. He was also the
caretaker of his paralyzed mother. He had a brother, but he was an over-the-road truck driver.
[SEGMENT 10]
Counsel stated defendant lived in a different county from the victim and would have no reason to
go there any further. Counsel further stated defendant would follow any pretrial conditions
imposed by the court. Counsel argued that, with regard to the resisting a peace officer charge,
defendant was compliant on probation. He was in school at Parkland College getting his
commercial driver’s license (CDL). Counsel further stated that while they appreciated the gravity
of the charges, defendant was innocent until proven guilty and asked the court to take that into
consideration. Defense counsel requested defendant’s release with pretrial conditions.
¶ 18 The court then stated it considered the fact presentations, the arguments, and the pretrial
investigation report. The court agreed that defendant was presumed innocent and that the current
hearing was solely related to the State’s petition requesting pretrial detention. The court noted
defendant raised his hand and said, “I’ve started my ruling right now. I’m not gonna pause. I note
you just raised your hand.” Defendant said, “Oh.” The court then stated, “I’m ruling; okay?”
Defendant stated, “Okay.”
¶ 19 The court then indicated the State had proof that included the alleged victim’s statements
that were repeated, and fundamentally consistent, to the aunt, SANE, and the CAC interviewer.
The facts were also supported by difficulties the child was having in school as well as descriptions
of sex toys that were consistent with sex toys later found by police or described by the victim’s
mother. The court found the State provided clear and convincing evidence that the proof was
evident or the presumption great that defendant committed the charged offenses. The court further
stated that it was not considering any of the proffer that considered a second victim.
¶ 20 As to dangerousness, the court stated it was considering evidence beyond the offenses
charged. The court noted the repeated offenses but further noted that defendant was on felony
probation for causing injury to a peace officer and was on conditional discharge for public
indecency when the alleged offenses occurred. The court also noted the second charge of public
indecency that was dropped as part of the plea and noted defendant’s inability to control himself
from acting out sexually in an illegal manner. The court also noted the public indecency charge
involving exposing himself to a 13-year-old child through a window on a route the child took to
catch the bus. The court found defendant was someone who was incapable or unwilling to control
his sexual behavior in a manner that was not illegal and therefore, was dangerous.
¶ 21 The court further found that no condition, or combination of conditions, could mitigate
defendant’s dangerousness, for the community’s safety. It acknowledged the contrary evidence
but noted the other public indecency charge related to the exposure of defendant’s genitals at the
Dollar General Store. The court noted that defendant was employed, had people who depended on
him, had children of his own, and family to support. It further noted that defendant was also
enrolled in a CDL program and had a low-to-medium range score on the pretrial risk assessments.
It stated that while defense counsel indicated that defendant would follow a court order with
pretrial release conditions, the State showed by clear and convincing evidence that was
insufficient. The court denied pretrial release and ordered defendant not to have, or try to have,
contact with the victim in the case. The court then read defendant his appeal rights.
¶ 22 After receiving defendant’s acknowledgment that he understood his appeal rights, he asked
defendant if he had a question. The following exchange occurred:
“THE DEFENDANT: Yes. *** I had raised my question to talk to my attorney
before—
THE COURT: Nope.
THE DEFENDANT:—you had—
THE COURT: The first time you did that was when I had already started talking
with my ruling, and I was not gonna stop my ruling so that you could—
THE DEFENDANT: When—
THE COURT:—speak with your attorney.
THE DEFENDANT: No. The, the first time—the first time I had did it, the states
was talking and when I heard the states talking, I put my hand down because, when I was
in the room, I had—heard you tell someone else that you wasn’t gonna interrupt the state,
so I put my hand down, and then, after he starts talking, you had started talking and
(unintelligible), and I had put my hand up, but if it’s too late, I understand that.
THE COURT: Well, no. Hold on. I’m gonna make a record of this; okay?
THE DEFENDANT: Yes, sir.
It appears that the provided text does not contain any court ruling citations. The text consists entirely of dialogue between THE COURT and THE DEFENDANT, without any mention of other court cases or specific legal citations. As a result, there are no court ruling citations to remove or replace. The text remains unchanged.
Please provide a different part of a court ruling that includes court ruling citations for further processing. Thereafter, defendant said he did, but he did not know where to start. He then asked if he would
go to court on February 20. The court advised defendant that his preliminary hearing was set for
February 14, 2024. Defendant then asked if that was similar to a pretrial hearing. The court told
defendant that his attorney would explain more about that, and he would have an opportunity to
speak with his attorney.
¶ 23 Defendant then asked if someone could help his mom because she was in the house by
herself, and she did not have her phone because he was locked up with her phone. He stated that
he tried to reach his brother, but he was on the road. The court asked for the address and defendant
provided it. Defendant then stated, “It’s—so it’s no way I can speak, speak with my attorney at
all?” An unidentified speaker stated, “They will call you.” The court stated, “Yes, You, you’ll have
plenty of opportunity to speak with your attorney. I’m just not gonna pause the hearing at this point
so you can do that.” The defendant stated,
“So it’s—so is there a way that you can just go back and look at when I had my hand up,
‘cause I, I raised my hand twice, like, and then—like that just, like, got over—my hand got
overruled because the state was talking, and then I put my hand down, but then I raised it
back up—”
The court stated, “No. There was never any—” Defendant interrupted stating “and” and the court
was also speaking. The court stated,
“Hold on. The court didn’t see you raise your hand, even though I’m regularly checking,
and no one in the courtroom, including your attorney, called my attention to you having
raised your hand. The first time I saw you ever with your hand up was when I had already
started talking with my ruling, so by that—at that time, the hearing was over, and I’m just
ruling.”
====== End of Part of a Court Ruling ====== Defendant asked, “There, there is no way that you can go back for a, a, a pause, a brief pause to
see my hand raised.” The court responded, “No.” The State requested the court to include the
victim’s mother as part of the no contact order as well. No objection was raised by defense counsel.
The court stated it would and advised defendant that he was not allowed to contact the victim’s
mother either.
¶ 24 The court issued a written order finding the offense was detainable and defendant posed a
real and present threat to the safety of any person or persons or the community, and no condition
or combination of conditions could mitigate that dangerousness. In support of finding that
defendant committed a detainable offense, and the State proved the proof was evident or the
presumption great, as to the charged offense, the order stated,
“The alleged victim is 9 years old. Defendant Mr. Freeman, who is 31, was her mother’s
boyfriend and, at the time of the charged offenses, was living with the victim and her
mother. The victim reported in an outcry statement to her aunt, and later to a SANE nurse,
then later to a CAC interviewer, Mr. Freeman’s actions described in the charges. Her
account was corroborated by her description of distinctive objects Mr. Freeman used that
later were found in the home and described by the victim’s mother, and the victim’s
description of images Mr. Freeman let her see which were confirmed by his statement to
the victim’s mother, although he claimed the victim’s viewing was accidental. They were
further confirmed by the victim’s distressed and emotional responses and her age-
inappropriate sexualized behavior, all of which was consistent with having suffered the
trauma of these crimes at her age.”
¶ 25 The court further found defendant posed a real and present threat and no condition, or
combination of conditions, would mitigate that threat. In support, the order stated,
“At the time of the offenses, Mr. Freeman was on Probation for felony Resisting a Peace
Officer (causing injury) and Conditional Discharge for Public Indecency. His recent history
of being unable or unwilling to control his illegal sexual conduct is[:] In 20-CM-201 he
was convicted of Obstructing Identification in a plea resulting in the dismissal of a count
of Public Indecency, and the facts involved Mr. Freeman exposing himself to a worker at
[SEGMENT 11]
Wal-Mark while saying ‘I have a big dick’, then fighting with and injuring an officer. In
-CM-139 he was convicted of Public Indecency for exposing himself to a 13-year-old
girl while he stood in the window of the home where the State now can prove the offenses
in this case occurred, and the facts of that case include his repeated exposure to the 13-
year-old, who had to walk by the house to reach the school bus, so many times that she
finally decided to record video of him on her phone. Before the offenses were charged here,
he was issued a notice to appear in February for events on December 27, 2023, when he
exposed his genital to a clerk at Dollar General. Mr. Freeman is employed, has his own
children and other connections to the community, and is enrolled in a CDL program, but
he cannot or will not control his illegal sexual acting out, and his behavior has escalated to
targeting children, then to sexual violence. GPS cannot protect every child, he has
repeatedly ignored sentencing orders and at this point no conditions of release can mitigate
the threat he poses to community safety.”
Defendant timely appealed. Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023).
¶ 26 II. ANALYSIS
¶ 27 Pretrial release—including the conditions related thereto—is governed by statute. See [CITATION]. A
defendant’s pretrial release may be denied only in certain statutorily limited situations. 725 ILCS
5/110-6.1 (West 2022). In order to detain a defendant, the State has the burden to prove by clear
and convincing evidence that (1) the proof is evident or the presumption great that the defendant
has committed a qualifying offense, (2) the defendant’s pretrial release poses a real and present
threat to the safety of any person or the community or a flight risk, and (3) less restrictive
conditions would not avoid a real and present threat to the safety of any person or the community
and/or prevent the defendant’s willful flight from prosecution. [CITATION]
¶ 28 In considering whether the defendant poses a real and present threat to the safety of any
person or the community, i.e., making a determination of “dangerousness,” the trial court may
consider evidence or testimony concerning factors that include, but are not limited to, (1) the nature
and circumstances of any offense charged, including whether the offense is a crime of violence
involving a weapon or a sex offense; (2) the history and characteristics of the defendant; (3) the
identity of any person to whom the defendant is believed to pose a threat and the nature of the
threat; (4) any statements made by or attributed to the defendant, together with the circumstances
surrounding the statements; (5) the age and physical condition of the defendant; (6) the age and
physical condition of the victim or complaining witness; (7) whether the defendant is known to
possess or have access to a weapon; (8) whether at the time of the current offense or any other
offense, the defendant was on probation, parole, or supervised release from custody; and (9) any
other factors including those listed in section 110-5 of the Code of Criminal Procedure of 1963
(Code) ([CITATION]
¶ 29 To set appropriate conditions of pretrial release, the trial court must determine, by clear
and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the
appearance of a defendant as required or the safety of any other person or the community and the
likelihood of compliance by the defendant with all the conditions of pretrial release.” [CITATION]
====== 5(a). In reaching its determination, the trial court must consider (1) the nature and circumstances
of the offense charged; (2) the weight of the evidence against the person; (3) the history and
characteristics of the person; (4) the nature and seriousness of the specific, real, and present threat
to any person that would be posed by the person’s release; and (5) the nature and seriousness of
the risk of obstructing or attempting to obstruct the criminal justice process. Id. The statute lists
no singular factor as dispositive. See id.
¶ 30 Our standard of review of pretrial release determinations is twofold. The trial court’s
factual findings are reviewed under the manifest weight of the evidence standard. [CITATION],
2023 IL App (5th) 230766, ¶ 12. “ ‘A finding is against the manifest weight of the evidence only
if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not
based on the evidence presented.’ ” Id. (quoting [CITATION]). We review the trial court’s ultimate determination regarding the denial of pretrial release for an
abuse of discretion. Id. ¶ 11. “An abuse of discretion occurs when the decision of the circuit court
is arbitrary, fanciful, or unreasonable, or when no reasonable person would agree with the position
adopted by the trial court.” Id.; see [CITATION], 2023 IL 127854, ¶ 59. “[I]n reviewing
the circuit court’s ruling for an abuse of discretion, we will not substitute our judgment for that of
the circuit court, ‘merely because we would have balanced the appropriate factors differently.’ ”
[CITATION], 2019 IL App (1st) 191253, ¶ 15 (quoting [CITATION]).
¶ 31 Defendant’s notice of appeal requests reversal of the trial court’s order denying his pretrial
release. On the standard notice of appeal form used, every possible issue, except one, had language
written below it. However, three of the issues included an “x” in the box to the left of the issue.
The issues “checked” claimed: (1) the State failed to meet its burden of proving by clear and
convincing evidence that the proof was evident or the presumption great that defendant committed
the charged offense; (2) the State failed to meet its burden of proving by clear and convincing
evidence that defendant posed a real and present threat to the safety of any persons or the
community; and (3) the court erred in determining that no condition or combination of conditions
would reasonably ensure the appearance of defendant for later hearings or prevent defendant form
being charged with a subsequent felony or Class A misdemeanor.
¶ 32 The superfluous language under each issue was previously addressed in [CITATION], and we again remind trial counsel of its ethical obligations
related to presenting frivolous issues on appeal. Here, as in Davis, the typewritten words provide
no specific argument and merely define what is required for clear and convincing evidence and
recite applicable sections of the Code. Further, the third issued checked by defendant relates solely
to revocation of previously issued pretrial release conditions pursuant to section 110-6 of the Code
(725 ILCS 5/110-6 (West 2022)). Our review of the record reveals no such event for this case, and
we find the issue has no relevancy in defendant’s case.
¶ 33 This court would consider the remaining two issues raised; however, OSAD filed a Rule
604(h) memorandum. In Forthenberry, this court held that when a supporting Rule 604(h)
memorandum is filed, it becomes “the controlling document for issues or claims on appeal” and
the notice of appeal would not be used to “seek out further arguments not raised in the
memorandum” unless jurisdiction was raised as an issue. [CITATION]. Other appellate districts have also adopted this holding. See [CITATION]. Here,
OSAD’s memorandum contains no argument for the issues raised by defendant in his notice of
appeal. Accordingly, we hold that the issues initially raised by defendant in his notice of appeal
were abandoned by his appellate counsel. [CITATION], ¶¶ 42-44.
¶ 34 Instead of addressing the issues raised by defendant, OSAD argues that defendant was
denied his statutory right to consult with counsel before the detention hearing and further contends
that defendant’s denial was exacerbated by the fact the defendant did not appear in person for the
hearing as required by the statute. OSAD concedes neither issue was raised in defendant’s notice
of appeal but contends the issue is not forfeited because the statute imposed the duty on the court,
not defendant or his counsel. Citing [CITATION], OSAD contends it would be “incongruous to fault defendant for the court’s failure to comply with the
statute.” OSAD further argues, citing [CITATION], that nothing in
the admonitions put defendant on notice that he needed to raise every issue in his notice of appeal
and that denial of the right to counsel could be reviewed as second-prong plain error.
¶ 35 In response, the State filed a Rule 604(h) memorandum arguing that defendant waived
these issues by failing to raise them in his notice of appeal. In the alternative, the State argues that
defendant was not denied the right to consult with counsel prior to the detention hearing, because
counsel was appointed two days prior to the hearing. The State further argues that orders issued
by the Illinois Supreme Court and orders issued by the Sixth Judicial Circuit Court Judge and
Champaign County Court authorized defendant’s remote appearance for this appearance.
¶ 36 Before we address the merits of the issues raised, we must first determine whether the issue
was waived. “ ‘[W]aiver implies a knowing relinquishment of a right, whereas procedural default
[SEGMENT 12]
refers to the failure to adequately preserve an issue for later appellate review.’ ” [CITATION] (quoting [CITATION] (Freeman, J., dissenting, joined by
McMorrow, C.J., and Kilbride, J.)). In [CITATION], the court found a procedural default because “it
would be incongruous to hold that defendant forfeited the right to bring a postconviction claim
because he did not object to the circuit court’s failure to admonish him.” Id. at 188. It was
undisputed in [CITATION] that defendant was not properly and fully admonished as required by the
rules. Id.
¶ 37 Here, however, defendant was properly admonished regarding his appeal rights under the
Code as they relate to pretrial release determinations. Unlike [CITATION], no rule requires defendant
to be admonished that the failure to raise an issue or claim of error on appeal would result in
forfeiture. [CITATION], ¶ 18. Here, as in [CITATION], defendant
was represented by counsel who prepared the notice of appeal. Defense counsel was present at the
hearing, and therefore, was well aware of defendant’s contentions related to whether he timely
raised his hand during the hearing. Despite filing a notice of appeal with language beneath nearly
every possible issue that could be raised in the standard form, defense counsel did not include any
language under the last issue of “other” or provide any argument related to defendant’s attempt to
speak with counsel while the court was issuing its ruling. Regardless, the issue was raised in
OSAD’s memorandum. “[A]n appellant’s notice of appeal, taken in conjunction with the
appellant’s memorandum, must still contain ‘the relief requested and the ground for the relief
requested’ to avoid forfeiture.” Id. ¶ 19. Here, because the issue was raised in the memorandum,
defendant’s failure to raise the issue in the notice of appeal is not dispositive of the issue of waiver.
¶ 38 Instead, the waiver determination must be based on whether the issue was properly raised
and preserved before the trial court. Generally, a defendant is bound by the actions of his attorney.
[CITATION]. Here, it is undisputed that defendant claimed
the trial court failed to acknowledge his request to speak with his attorney during the hearing.
However, at no time did defense counsel confirm defendant’s earlier request for consultation. Nor
did defense counsel present any objection, either prior to or after, any of the trial court’s statements
related to the untimeliness of defendant’s alleged action, despite the issue being raised at least
three times by defendant. Finally, at no time did trial counsel ever argue that defendant was
deprived of any statutory right to consult with counsel. As the issue was neither properly presented
nor preserved before the trial court, we find the issue was waived.
¶ 39 OSAD next argues that denial of defendant’s right to counsel could be reviewed as second-
prong plain error. “Illinois’s plain error rule is a narrow exception to forfeiture principles.” [CITATION]. It does not “call for the review of all forfeited errors.” [CITATION]
“Under the second prong of plain-error review, ‘[p]rejudice to the defendant is presumed because
of the importance of the right involved “regardless of the strength of the evidence.” ’ ” (Emphasis
in original.) [CITATION] (quoting [CITATION], quoting [CITATION]). “When a defendant invokes
the plain error rule, the first step in the analysis is to determine whether a clear or obvious error
occurred.” [CITATION]
¶ 40 Here, defendant claims a statutory error, not a constitutional error. We further note that
defendant does not allege that he did not have counsel. Indeed, as noted by the State, and confirmed
by review of the record, defendant was appointed counsel two days prior to the pretrial release
hearing. As such, counsel’s appointment comported with the statutory requirement that the
“defendant has the right to be represented by counsel” and, if indigent, “to have counsel appointed
for him or her.” 725 ILCS 5/110-6.1(f)(3) (West 2022). At issue is whether the trial court
comported with the remainder of that statutory requirement. That portion states,
“Defense counsel shall be given adequate opportunity to confer with the defendant before
any hearing at which conditions of release or the detention of the defendant are to be
considered, with an accommodation for a physical condition made to facilitate
attorney/client consultation. If defense counsel needs to confer or consult with the
defendant during any hearing conducted via a two-way audio-visual communication
system, such consultation shall not be recorded and shall be undertaken consistent with
constitutional protections.” Id.
¶ 41 Statutory interpretation presents a question of law that is subject to de novo review. [CITATION]
v. Smith, 2016 IL 119659, ¶ 15. The primary objection of statutory construction is to ascertain and
give effect to the true intent of legislature and all other rules are subordinate to this principle.
[CITATION] v. Jamison, 229 Ill. 2d 184, 188 (2008). “The most reliable indicator of legislative intent is
the language of the statute, given it plain and ordinary meaning.” [CITATION] v. Clark, 2019 IL 122891,
¶ 20. “A court must view the statute as a whole, construing words and phrases in light of other
relevant statutory provisions and not in isolation.” Id. “Each word, clause, and sentence of a statute
must be given a reasonable meaning, if possible, and should not be rendered superfluous.” Id.
¶ 42 Here, the statute provides defense counsel an “adequate opportunity to confer with the
defendant before any [pretrial release] hearing.” 725 ILCS 5/110-6.1(f)(3) (West 2022). Defense
counsel was appointed two days before the pretrial release hearing and no argument is presented
that defendant was not given an opportunity to speak with his appointed counsel prior to the
hearing. Given the argument presented by defense counsel, that included facts not found elsewhere
in the record, it is clear to this court that defense counsel conferred with defendant prior to the
hearing. While defendant argues that he was not provided the opportunity to confer with his
counsel during the hearing, no such statutory right appears. Indeed, the statutory right solely
provides for defense counsel to confer with defendant, not for defendant to confer with defense
counsel. Perhaps recognizing this anomaly, the trial court provided a protocol for defendants that
would allow them to confer with counsel during the hearing.
¶ 43 The record revealed that defendant was advised by the court, prior to the hearing, that if he
needed to speak to his counsel during the hearing, he was to raise his hand and speak to the court
so it would be aware of the request. Defendant was placed in front of a monitor so the court and
both attorneys could see him. While defendant contended that he raised his hand while the State
was speaking, he conceded that he voluntarily put his hand down. The record further reveals that
at no time—prior to the court issuing its ruling—did defendant ever raise his hand and advise the
court of his need to speak with his counsel, which was the required protocol established by the
trial court.
¶ 44 “[T]he trial court possesses the inherent authority to control its own docket and the course
of litigation ***.” [CITATION]. Typically, actions taken pursuant to
the inherent authority are reviewed for an abuse of discretion. See [CITATION]. An abuse of discretion is the most deferential standard of review. [CITATION].
The standard is “reserved ‘for those decisions of the lower court which
deserve great deference on review.’ ” Id. (quoting [CITATION]).
A trial court abuses its discretion only when its decision is arbitrary, fanciful, or unreasonable, or
when no reasonable person would take the trial court’s view. [CITATION]. On review, this court does not consider whether it would have made the same
decision if placed in the trial court’s position; rather, we consider whether the trial court’s decision
was arbitrary, made without conscientious judgment, or otherwise in such a way that “ ‘in view of
all of the circumstances, the [trial] court exceeded the bounds of reason and ignored recognized
principles of law so that substantial prejudice resulted.’ ” [CITATION]
863 (2007) (quoting [CITATION]).
¶ 45 It is under this purview that we consider the trial court’s decision to deny defendant the
ability to confer with his counsel while it was issuing its ruling. We first note that the record reveals
defendant’s misconceptions about the hearing as stated in his colloquy with the court. For example,
defendant contended that he put his hand down because the State was speaking and that the trial
court immediately thereafter began to issue its ruling. However, the record fail to reveal such
instance. Instead, the record reveals that the State made its proffer. Thereafter, defense counsel
declined the opportunity to present any proffer and told the court it solely wished to present
argument. The State then presented its argument which was followed by defense counsel’s
argument that also included a proffer. It was only after both parties were provided the opportunity
to present both proffer and argument, and more specifically, following defense counsel’s
argument, and the trial court began issuing its ruling that defendant raised his hand allegedly for a
[SEGMENT 13]
second time.
¶ 46 While the trial court could have been clearer as to when the timeframe to request a
consultation with counsel would be too late in the hearing, it is equally clear that once the evidence,
proffers, and arguments were presented, and the court was issuing its ruling, the time for
consultation had passed. Given that all that was left to occur was for the court to issue its ruling
we cannot find the trial court’s decision was an abuse of discretion. Accordingly, no clear and
obvious error exists and therefore, second-prong plain error cannot be found.
¶ 47 OSAD further argues that defendant’s inability to confer with his counsel was exacerbated
by the fact that defendant was not present for the hearing and seems to claim such action was also
contrary to the statutory requirement. Again, we find no merit in either argument. First, while the
statute states that the pretrial release hearings must be conducted in person, the statute provides
exceptions for operational challenges that are documented and approved by the chief judge of each
circuit. See 725 ILCS 5/110-6.1(f)(3.5) (West 2022). Our supreme court issued an order on August
30, 2023, regarding the conduct of hearings pursuant to the SAFE-T Act. See [CITATION]. Therein, the court provided the proper procedures required for courts that were
unable to comply with the in-person requirement for pretrial hearings set forth in the statute.
¶ 48 With regard to the Sixth Judicial Circuit, Appendix D of the circuit court’s local rules were
amended on March 23, 2023, requiring each county to determine which hearings could be held in
person and which could be held remotely. Thereafter, on September 11, 2023, Champaign County
Chief Judge Rosenbaum issued Administrative Order 2023-5 regarding the implementation of the
SAFE-T Act. Therein, the order found that the physical health and safety of its correctional officers
and the inmates would be endangered due to operational challenges related to in-person hearings
stemming from a deficiency in staff at the Champaign County Sheriff’s Office, which was charged
with bringing inmates to the courthouse. The order required defendants to appear remotely for
pretrial release hearings until said operational challenge was sufficiently reduced so that the
physical health and safety of the correctional officers and inmates would no longer be endangered.
OSAD presents no argument that these administrative orders were defective and therefore, we
decline to find that defendant’s hearing was contrary to law.
¶ 49 Further, OSAD’s argument that defendant’s remote hearing exacerbated his ability to
communicate with his counsel has no merit. As noted above, the statutory right is for defense
counsel to confer with defendant before and during the hearing, not for defendant to confer with
his counsel. 725 ILCS 5/110-6.1(f)(3) (West 2022). There was no evidence in the record that
The provided part of the court ruling does not contain any court ruling citations that need to be replaced with `[CITATION]` or `[CITATION]`. There are no references to other cases, either full citations or abbreviated forms. Therefore, no changes are necessary.
The content remains as is:
defense counsel was precluded from conferring with defendant before the hearing or desired a
consultation during the hearing. The trial court’s protocol advised defendant as to what needed to
occur if defendant wished to speak with his counsel during the hearing. No right to speak with
counsel during the trial court’s ruling is found in the statute. Given the current remote-only status
of the pretrial release hearings in Champaign County, the trial court provided defendant with the
proper procedure if defendant wished to confer with his counsel during the hearing. The protocol
included raising his hand and speaking to get the court’s attention. At no time prior to the court
issuing its ruling—by defendant’s own admission—did defendant follow the court’s protocol. As
noted above, we did not find the trial court’s decision to disallow consultation while it was issuing
its ruling to be an abuse of discretion. Therefore, we disagree that defendant’s remote-only status
affected his ability to confer with his attorney. As no other argument was presented, we affirm the
trial court’s order denying pretrial release.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated herein, the trial court did not err in declining defendant’s request to
confer with counsel while it was issuing its ruling. Therefore, we affirm the trial court’s order.
¶ 52 Affirmed.
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
NOTICE
2024 IL App (5th) 240120
Decision filed 04/09/24. The
text of this decision may be NO. 5-24-0120
changed or corrected prior to
the filing of a Petition for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) No. 24-CF-40
)
MCKENZIE D. DAVIS, ) Honorable
) Brett N. Olmstead,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court, with opinion.
Justice McHaney concurred in the judgment and opinion.
Justice Welch specially concurred, with opinion.
OPINION
¶1 Defendant timely appeals the trial court’s order revoking his pretrial release pursuant to
Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability,
Fairness and Equity-Today (SAFE-T) Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023);
Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18,
2023). For the following reasons we affirm the trial court’s order.
¶2 I. BACKGROUND
¶3 On January 5, 2024, defendant was arrested for disorderly conduct related to a false 911
call. An order finding probable cause to detain was issued on January 6, 2024. On January 8, 2024,
defendant was charged by information with one count of disorderly conduct in violation of section
1
26-1(a)(6) of the Criminal Code of 2012 (720 ILCS 5/26-1(a)(6) (West 2022)), a Class 4 felony.
The information alleged that on January 5, 2024, defendant called “911” for the purpose of
transmitting a false complaint, namely an emergency situation, when defendant knew, at the time
the call was made, there was no reasonable ground for making the call and that the call could result
in the emergency response of a public safety agency.
¶4 Defendant’s arraignment was held on January 8, 2024. At that time, he was appointed
counsel, pled not guilty, requested a jury trial, and was provided pretrial conditions of release.
Those conditions included (1) attendance at future hearings, including one scheduled for January
16, 2024; (2) not violating any criminal statute of any jurisdiction; (3) notification of any change
in address; (4) reporting to pretrial services; (5) random drug testing; and (6) prohibition from
contacting either Sammy Davis or Donna Davis or being at their residence.
¶5 On January 9, 2024, a pretrial investigation report was filed with the court that revealed
defendant was 27 years old, single, and lived with his parents. His mental health history included
a diagnosis of anxiety for which he took medication. He had pending criminal charges for domestic
battery/bodily harm incurred on January 4, 2024, along with charges of battery causing bodily
harm and violation of a bail bond involving a family member on August 22, 2023. Prior convictions
included criminal trespass to residence on July 13, 2022, and driving under the influence on March
22, 2016, for which he received conditional discharge for both convictions. He scored a 6 out 14
on the Virginia Pretrial Risk Assessment Instrument-Revised (VPRAI-R) equating to a level 3 out
of 6 and a 14.9% recidivism rate.
¶6 On January 16, 2024, the State filed a petition to revoke pretrial release. In support, the
State alleged that defendant, while on pretrial release, committed the offense of disorderly conduct,
2
a Class 4 felony, that was charged in case No. 24-CF-71. The petition further alleged that defendant
was in violation of the court’s no-contact orders regarding a protected address and persons.
¶7 The case proceeded on the previously scheduled January 16, 2024, hearing. At that time,
defendant requested a continuance as to the State’s petition to revoke pretrial release, and
defendant was temporarily detained until the hearing set for January 17, 2024.
¶8 On January 17, 2024, the case proceeded on the State’s petition to revoke. An amended
pretrial services report provided the same information as above but also included newly filed
charges of domestic battery and violation of pretrial release involving a family member. The
VPRAI-R score remained the same. The State proffered that a no-contact order was issued after
defendant was charged in August 2023 with battery after striking his father (case No. 23-CM-330).
Defendant was later arrested for violating the no-contact order (case No. 23-CM-331). In case No.
24-DV-3, defendant struck his mother with a phone on December 30, 2023. Defendant’s mother
recanted the allegations. A no-contact order was issued, but the parents appeared at the arraignment
and requested the no-contact order be removed. The instant case, case No. 24-CF-40, involved
allegations that defendant made eight false, unnecessary calls to 911 on January 5, 2024. This
culminated in defendant’s mother calling 911 to report that defendant and his father were
physically struggling. Champaign police located defendant and his father on the floor together,
engaged in an altercation. Both parents denied defendant was aggressive with them, and defendant
was charged with filing false reports. A no-contact order for the parents and their residence was
issued. While on release, defendant was at his parents’ residence, used alcohol to excess, and began
calling 911 repeatedly, on January 13, 2024. The first two calls, made around 9:10 a.m., were
nonsensical and claimed an emergency, initially in Idaho and then in Champaign, without stating
what the emergency was. A third call was made at 9:13 a.m., and officers began efforts to locate
3
defendant. A fourth call was made at 9:50 a.m., at which time defendant provided his location.
Defendant called again at 9:57 a.m., screaming and crying about no one believing him. Officers
located defendant with a recently purchased bottle of alcohol. After a brief interaction, defendant
was released, and he returned to the protected address and tried to enter. Officers returned to the
protected address and were told defendant had been kicked out 30 minutes earlier. Defendant
called 911 again at 5:19 p.m., reported he was at the protected address, and then laughed. He called
again at 5:53 p.m., stating he was sorry and was walking to the Illinois Terminal. Defendant called
again at 6:41 p.m., stating he was at the protected address. Officers located defendant at the
protected address and took him into custody. The officers noted that defendant smelled of alcohol.
The State indicated that officers were familiar with defendant’s voice and speech pattern from the
prior calls. As a result of his actions while on release, defendant was charged with disorderly
conduct in case No. 24-CF-71.
¶9 Defense counsel argued that defendant obtained an evaluation at Rosecrance, was receiving
drug and alcohol treatment, and had a counselor. Defendant’s parents were at the hearing. Counsel
stated that he spoke to them prior to the hearing, and both were requesting that the no-contact order
be lifted. Defendant was the home healthcare provider for his mother. Counsel noted that defendant
was on medication, had another appointment on February 1, 2024, worked as a live streamer, and
lived his whole life with his family. The family was very supportive and wanted him to get the
mental health treatment, as well as drug and alcohol treatment, he needed.
¶ 10 The State argued that this was a petition to revoke pretrial release and no other mechanism,
but detention, was plausible based on the numerous orders already issued and the degenerating
situation. Defendant had five pending cases. Two were felonies and one was a domestic battery.
4
The State argued that clear and convincing evidence showed that defendant continued to break the
law and no combination of conditions would prevent that.
¶ 11 Defense counsel argued that defendant obtained a substance abuse evaluation as well as a
mental health evaluation and was proceeding with treatment. Counsel argued that those things
could not be accomplished immediately, and defendant was receiving treatment. Defendant’s
parents were supportive, did not want a no-contact order, and needed to be able to take him to
appointments so he could continue his treatment.
¶ 12 The court stated that it considered the relevant factors and noted the burden on the State
was to show that while defendant was on pretrial release for a felony or Class A misdemeanor,
defendant was charged with a felony or Class A misdemeanor during his release. The court found
the State proved that element by clear and convincing evidence. The pretrial release was ordered
on January 8, 2024, in case No. 24-CF-40, and a second charge was filed five days later on January
13, 2024, in case No. 24-CF-71. The State was also required to show by clear and convincing
evidence that no condition or combination of conditions of release would reasonably prevent
defendant from being charged with a subsequent felony or Class A misdemeanor. The court found
the State met that burden, noting that defendant’s situation and the repeated offenses backed the
court into a corner and there were no options left. The court reiterated defendant’s charges levied
on August 19, 2023, August 21, 2023, December 30, 2023, January 5, 2024, and now January 13,
2024. The court found that the support from the treatment and the family was not working and that
nothing further could be done to prevent defendant from being charged with a subsequent felony
or Class A misdemeanor. The court stated,
“What’s happened is his parents have tried really hard to manage him and his
mental health and substance abuse struggles. They want to be there for him. They
5
want to be supportive. They just can’t. It cannot be done. They *** don’t have the
ability to do it, and he doesn’t have the ability or willingness to control his
impulsive criminal conduct. There’s no set of conditions the court could enter
here.”
The court granted the State’s petition, revoked defendant’s pretrial release, and advised defendant
of his appeal rights. Defendant timely appealed. Ill. S. Ct. R. 604(h)(2) (eff. Dec. 7, 2023).
¶ 13 II. ANALYSIS
¶ 14 Pretrial release—including the conditions related thereto—is governed by statute. See Pub.
Act 101-652, § 10-255 (eff. Jan. 1, 2023); Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023). Revocation
of previously issued pretrial release conditions is addressed in section 110-6(a) of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6(a) (West 2022)). Section 110-6(a) provides
for revocation when “a defendant has previously been granted pretrial release under this Section
for a felony or Class A misdemeanor” and “is charged with a felony or Class A misdemeanor that
is alleged to have occurred during the defendant’s pretrial release.” Id. The issue of revocation can
be raised by the court sua sponte or by the State’s filing of a verified petition. Id. However, in
addition to being charged with a subsequent felony or Class A misdemeanor on release, the “State
shall bear the burden of proving, by clear and convincing evidence, that no condition or
combination of conditions of release would reasonably ensure the appearance of the defendant for
later hearings or prevent the defendant from being charged with a subsequent felony or Class A
misdemeanor.” Id. If the conditions of pretrial release are revoked, at each of defendant’s
subsequent appearances before the court, “the judge must find that continued detention under this
Section is necessary to reasonably ensure the appearance of the defendant for later hearings or to
6
prevent the defendant from being charged with a subsequent felony or Class A misdemeanor.” Id.
§ 110-6(j).
¶ 15 Our standard of review of pretrial release determinations is twofold. The trial court’s
factual findings are reviewed under the manifest weight of the evidence standard. People v. Swan,
2023 IL App (5th) 230766, ¶ 12. “ ‘A finding is against the manifest weight of the evidence only
if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not
based on the evidence presented.’ ” Id. (quoting People v. Deleon, 227 Ill. 2d 322, 332 (2008)).
We review the trial court’s ultimate determination regarding the revocation of pretrial release for
an abuse of discretion. Id. ¶ 11. “An abuse of discretion occurs when the decision of the circuit
court is arbitrary, fanciful, or unreasonable, or when no reasonable person would agree with the
position adopted by the trial court.” Id.; see People v. Heineman, 2023 IL 127854, ¶ 59. “[I]n
reviewing the circuit court’s ruling for abuse of discretion, we will not substitute our judgment for
that of the circuit court, ‘merely because we would have balanced the appropriate factors
differently.’ ” People v. Simmons, 2019 IL App (1st) 191253, ¶ 15 (quoting People v. Cox, 82 Ill.
2d 268, 280 (1980)).
¶ 16 Defendant’s notice of appeal requests reversal of the trial court’s order revoking his pretrial
release. Although black letter law is typed below nearly every issue listed on the standard form
notice of appeal, it appears that only one of the grounds is actually “checked” as an issue. The
issue “checked” claims the court erred in its determination that no condition, or combination of
conditions, would reasonably ensure defendant’s appearance at later hearings or prevent defendant
from being charged with a subsequent felony or Class A misdemeanor. In support, the typed
language below the issue stated the following:
7
“The Pretrial Fairness Act is to ‘be liberally construed to effectuate the purpose of
relying on pretrial release by nonmonetary means to reasonably ensure an eligible
person’s appearance in court, the protection of the safety of any other person or the
community, that the person will not attempt or obstruct the criminal justice process,
and the person’s compliance with all conditions of release, while authorizing the
court, upon motion of a prosecutor, to order pretrial detention of the person . . .
when it finds clear and convincing evidence that no condition or combination of
conditions can reasonably ensure the effectuation of these goals’ 725 ILCS 5/110-
2(e). In this case, the Court erred in its determination because there are conditions
set forth in 725 ILCS 5/110-10(b) which would effectuate the above goals.”
¶ 17 On February 29, 2024, defendant’s appointed counsel on appeal, the Office of the State
Appellate Defender (OSAD), filed a “Notice Filed in Lieu of Rule 604(h) Memorandum.” The
notice claims that defendant’s appeal was timely filed and jurisdiction lies with this court. It further
stated, “After thoroughly reviewing the record on appeal, including the arguments made in the trial
court and presented in the notice of appeal, Defendant-Appellant has determined that a Rule 604(h)
memorandum is not necessary in this case.” 1
¶ 18 Nothing in defendant’s notice of appeal—other than the checked issue—addresses the basis
for which the revocation occurred. Further, OSAD—which stated it thoroughly reviewed,
inter alia, the arguments “presented in the notice of appeal”—declined an opportunity to present
1
Due to defendant’s notice of appeal providing language related to each potential issue on appeal,
and OSAD failing to clarify which issues were relevant or provide supporting argument for any issue, the
State’s Illinois Supreme Court Rule 604(h) (eff. Dec. 7, 2023) memorandum filed on March 28, 2024,
addressed the issues potentially raised in defendant’s ambiguous notice of appeal as well as the basis of the
trial court’s revocation of defendant’s pretrial release. Defendant’s ambiguity regarding the issues requested
for review is not well taken as it needlessly increased the State’s efforts to respond to defendant’s notice of
appeal in addition to wasting this court’s valuable judicial resources.
8
an argument for defendant that would actually, and more specifically, address defendant’s alleged
claim of error.
¶ 19 OSAD’s classification of the irrelevant statements typewritten in the notice of appeal as
“argument” is a gross misrepresentation of the statements provided therein. Further, for this court
to find those statements merely “unpersuasive” would insufficiently describe the inappropriateness
and irrelevancy of the typewritten words in the notice of appeal. As such, we take this opportunity
to remind both trial counsel and appointed counsel of their ethical obligations.
¶ 20 The ethical obligations include the following:
“A lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis in law and fact for doing so that is not frivolous,
which includes a good-faith argument for an extension, modification[,] or reversal
of existing law. A lawyer for the defendant in a criminal proceeding, or the
respondent in a proceeding that could result in incarceration, may nevertheless so
defend the proceeding as to require that every element of the case be established.”
(Emphasis added.) Ill. R. Prof’l Conduct (2010) R. 3.1 (eff. Jan. 1, 2010).
Similarly, “[a] lawyer shall not *** knowingly disobey an obligation under the rules of a tribunal,
except for an open refusal based on an assertion that no valid obligation exists.” Ill. R. Prof’l
Conduct (2010) R. 3.4(c) (eff. Jan. 1, 2010).
¶ 21 One reason to review and consider these ethical rules is because “[i]t is professional
misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of another.” Ill. R. Prof’l
Conduct (2010) R. 8.4(a) (eff. Jan. 1, 2023). It is also “professional misconduct for a lawyer to:
*** engage in conduct involving dishonesty *** or misrepresentation” (Ill. R. Prof’l Conduct
9
(2010) R. 8.4(c) (eff. Jan. 1, 2023)) or “engage in conduct that is prejudicial to the administration
of justice” (Ill. R. Prof’l Conduct (2010) R. 8.4(d) (eff. Jan. 1, 2023)). “A lawyer who knows that
another lawyer has committed a violation of Rule 8.4(b) or Rule 8.4(c) shall inform the appropriate
professional authority.” Ill. R. Prof’l Conduct (2010) R. 8.3(a) (eff. Jan. 1, 2010). Even if no
question regarding honesty, trustworthiness, or fitness is raised, a judge knowing that a lawyer has
violated the Illinois Rules of Professional Conduct of 2010 is required “take appropriate action.”
Ill. Code Jud. Conduct (2023), Canon 2, R. 2.15(D) (eff. Jan. 1, 2023).
¶ 22 We presume the action, or lack of action, taken in this case while representing the defendant
was made after trial counsel and appellate counsel consulted with defendant about the proposed
defense. However, even if defendant approved of such action in preparing the notice of appeal, or
inaction by appellate counsel, we cannot condone either action as they are contrary to well-
established law requiring argument on appeal as seen in the supreme court rules.
“The signature of an attorney or party constitutes a certificate by him that he has
read the pleading, motion or other document; that to the best of his knowledge,
information, and belief formed after reasonable inquiry it is well grounded in fact
and is warranted by existing law or a good-faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.” Ill. S. Ct. R. 137(a) (eff. Jan. 1, 2018).
¶ 23 Our supreme court previously stated,
“What is defense counsel to do after he or she determines that defendant’s petition
is frivolous? Is counsel to stand mute at all subsequent proceedings? How can
counsel, ethically, ‘present the petitioner’s contentions’ when counsel knows those
10
contents are frivolous? Obviously, the answer is counsel cannot.” (Emphasis in
original.) People v. Greer, 212 Ill. 2d 192, 206 (2004).
The court further quoted the following United States Supreme Court language, “ ‘Neither paid nor
appointed counsel may deliberately mislead the court with respect to either the facts or the law, or
consume the time and the energies of the court or the opposing party by advancing frivolous
arguments.’ ” Id. at 207 (quoting McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436
(1988)).
¶ 24 Such ethical obligations have no limitation. See People v. Mancilla, 2024 IL App (2d)
230505, ¶ 32. After noting the increased workloads on the public and appellate defenders, the court
in People v. Mancilla stated with regard to pretrial release claims, “[P]resenting baseless appeals
only further burdens the justice system unnecessarily, delaying review of other cases with claims
based in law and fact.” Id. The Mancilla court held that
“in appeals of detention orders under the Code, appellate attorneys appointed to
represent the defendant under the Code are required to determine whether a
defendant’s claims have arguable merit; if, in their opinion, they do not, counsel
cannot in good faith file or continue to pursue such a frivolous appeal or claim
within an appeal. [Citations.]
*** Nevertheless, attorneys’ ethical duties include (1) pursuing only
meritorious claims, (2) dealing with candor toward the court, and (3) when
appropriate, withdrawing claims that are without merit. This may be accomplished
by filing an amended notice of appeal or simply by including within a memorandum
on appeal pursuant to Rule 604(h) (or within a notice filed in lieu of such a
memorandum) a concise statement indicating that counsel is withdrawing one or
11
more of the claims identified in the notice of appeal that was filed in the circuit
court.” Id. ¶¶ 34-35.
¶ 25 “An attorney, whether appointed or paid, is therefore under an ethical obligation to refuse
to prosecute a frivolous appeal.” McCoy, 486 U.S. at 436.
“ ‘A lawyer, after all, has no duty, indeed no right, to pester a court with frivolous
arguments, which is to say arguments that cannot conceivably persuade the court,
so if he believes in good faith that there are no other arguments that he can make
on his client’s behalf he is honor-bound to so advise the court and seek leave to
withdraw as counsel’ ” Id. (quoting United States v. Edwards, 777 F.2d 364, 365
(7th Cir. 1985)).
The proper procedure for appointed counsel to request leave to withdraw is well established. See
Ellis v. United States, 356 U.S. 674, 675 (1958) (per curiam); Anders v. California, 386 U.S. 738,
744 (1967) (“Of course, if counsel finds his case to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission to withdraw.”). Similarly,
trial counsel has a duty under these same principles, to only present arguments for claims with
merit and omit statements that lack merit when preparing the notice of appeal.
¶ 26 Here, defendant’s notice of appeal contained typewritten language in the spaces under each
potential issue for review. Upon closer review, however, the typewritten words provide no specific
argument and merely cited what defendant claimed were applicable sections of the Code. This
court has not hesitated to dismiss an appeal when defendant’s appointed counsel attempted to shift
their responsibility to present an argument onto this court. See People v. Burke, 2024 IL App (5th)
231167, ¶¶ 21-33; People v. Duckworth, 2024 IL App (5th) 230911, ¶¶ 7-8. Moreover, all but one
of the sections for which typewritten language was provided were completely inapplicable when
12
considered in conjunction with the hearing. Accordingly, those sections will not be addressed. We
will, however, review the one issued “checked,” although such analysis only demonstrates the lack
of any meritorious argument associated therewith.
¶ 27 This issue claimed that the trial court erred in determining that no condition, or combination
of conditions, would reasonably prevent defendant from being charged with a subsequent felony
or Class A misdemeanor. As noted above, revocation of previously issued pretrial release
conditions requires evidence that defendant was charged with a felony or Class A misdemeanor
while on pretrial release for charges stemming from either a felony or Class A misdemeanor. Here,
the evidence revealed that defendant was charged with disorderly conduct listed as a Class 4 felony
on January 8, 2024, for which defendant received pretrial release conditions. The evidence also
revealed that defendant was subsequently charged with disorderly conduct in violation of section
26-1(a)(1) of the Criminal Code of 2012 (720 ILCS 5/26-1(a)(1) (West 2022)), classified as a Class
C misdemeanor, and a violation of pretrial release/family member in violation of section 32-10(b)
(id. § 32-10(b)), classified as a Class A misdemeanor on January 13, 2024. No meritorious
argument can be made that this element of the revocation statute was not made.
¶ 28 The second element requires the State to prove that no condition, or combination of
conditions, is available that would prevent defendant from being charged with another felony or
Class A misdemeanor. Here, the State argued, and the pretrial investigation report substantiated,
defendant’s most recent criminal history that began in August 2023. This evidence revealed that
defendant was charged with domestic violence against his father in August 2023, and after
receiving pretrial release conditions, was charged with violating those conditions of release two
days later. Thereafter, defendant was charged with domestic violence against his mother on
January 4, 2024, and was again released on pretrial conditions. On January 8, 2024, defendant was
13
charged with the Class 4 felony of disorderly conduct and was released with pretrial conditions.
Those conditions included no contact with his parents and prohibited defendant from being at their
residence. Despite these requirements, as well as the requirement of not breaking any other statute,
defendant was charged with domestic violence involving his father at the protected address and
disorderly conduct again on January 13, 2024.
¶ 29 The evidence revealed that defendant was provided four opportunities to remain free from
incarceration with pretrial release conditions, and each time, defendant violated the terms of his
pretrial release. Further, the evidence revealed that the incidents of domestic violence were
escalating in severity. The first incident involved defendant striking his father. The second incident
involved defendant striking his mother—who required home healthcare services—with a phone.
The third incident involved defendant and his father physically struggling when police were called
and remained “engaged in an altercation” on the floor of the protected residence when Champaign
police arrived.
¶ 30 The evidence also revealed that defendant had always lived with his parents. There was no
evidence that defendant had anywhere else to reside if he could not live with them. Past practice
confirmed that issuing a no-contact order and/or prohibiting defendant from being at his parents’
residence was equally unavailing. Defendant continuously ignored those pretrial release
requirements resulting in subsequently being charged with felony or Class A misdemeanor
offenses related to those incidents. Accordingly, a pretrial release condition consisting of home
detention or Global Positioning System (GPS) monitoring had no merit.
¶ 31 The obviousness of the situation is further seen by defense counsel’s failure to present any
argument regarding possible conditions of pretrial release in this situation that would ensure
defendant would not commit future offenses and abide by the court’s orders. Nor is the possibility
14
of any specific condition of release contended in the notice of appeal. Here, unequivocally, the
trial court’s findings of a subsequent charge and lack of any condition to prevent another felony or
Class A misdemeanor are not against the manifest weight of the evidence and the court’s
revocation of pretrial release was not an abuse of discretion.
¶ 32 This court is well aware of the goals of the amendments by the Act and presumption
presented in section 110-2(e); however, the section has little relevance when the issue involves
revocation of pretrial release. In order to revoke pretrial release conditions, the defendant must
have committed another offense while on pretrial release. In this situation, the presumption set
forth in section 110-2(e) was previously extended to the defendant four times.
¶ 33 Given this evidence, the trial court’s findings, and ultimate disposition, as well as the
standard of review on appeal, we find this appeal was frivolous and that no meritorious argument
could be presented. Accordingly, we affirm the trial court’s order revoking defendant’s pretrial
conditions. Given the lack of any relevant argument on appeal and ethical obligations that preclude
lawyers from misrepresenting facts to this tribunal or proceeding with frivolous appeals, we
respectfully remind trial counsel and appointed counsel of their ethical responsibilities to both their
client and this tribunal.
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated herein, the trial court findings were not against manifest weight of
the evidence and its ultimate disposition was not an abuse of discretion. Therefore, we affirm the
trial court’s order revoking defendant’s pretrial release.
¶ 36 Affirmed.
¶ 37 JUSTICE WELCH, specially concurring:
15
¶ 38 I specially concur with my colleagues. I would suggest that the entire notice of appeal be
considered, including those arguments where the box is not checked, as that is a mere formality
and the writing underneath the form language demonstrates that the form language was considered.
This in no way implies that the language included under each section contains a persuasive
argument, only that it should be addressed in the majority opinion.
¶ 39 For this reason, I specially concur.
16
People v. Davis, 2024 IL App (5th) 240120
Decision Under Review: Appeal from the Circuit Court of Champaign County, No. 24-CF-
40; the Hon. Brett N. Olmstead, Judge, presiding.
Attorneys James E. Chadd, Carolyn R. Klarquist, and Ann B. McLennan, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Patrick Delfino and David J. Robinson, of State’s Attorneys
for Appellate Prosecutor’s Office, of Springfield, for the People.
Appellee:
17
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"3",
"6",
"8",
"11",
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Law
9961714
[SEGMENT 1]
2024 IL App (1st) 230571-U
No. 1-23-0571
Order filed October 4, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 9331
)
JVARUS MCKNIGHT ) The Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Presiding Justice Tailor and Justice Gamrath concurred in the judgment.
ORDER
¶1 Held: Affirmed, where State proved defendant possessed a firearm and statute barring
felons from possessing firearms is constitutional.
¶2 A driver with a prior felony might worry about police officers finding a firearm in the car.
Jvarus McKnight, who had a felony conviction, sped off when asked to get out of the car during a
traffic stop, crashing a few blocks away. Officers found a loaded gun in the glove compartment.
¶3 McKnight argues that (i) the State failed to prove that he possessed the gun and (ii) the
statute barring people with felonies from possessing firearms is unconstitutional. Neither of
McKnight’s attacks on his conviction succeed. We disagree and affirm. No. 1-23-0571
¶4 McKnight’s flight, prior felony, and control over the car all contribute to the inference that
he knew about the gun. Furthermore, the statute defining his criminal offense ([CITATION]) violates neither the United States nor the Illinois constitutions.
¶5 Background
¶6 After a bench trial, the court found Jvarus McKnight guilty of unlawful use or possession
of a weapon by a felon ([CITATION]).
¶7 Officer Brian Hima testified that while on patrol with two others, he saw a grey BMW, a
car he was on alert for, with an object hanging from its rearview mirror. He activated the siren and
lights before stopping that car. Hima approached the driver’s side and spoke with the lone
occupant, McKnight, for less than a minute before McKnight suddenly sped off.
¶8 After hearing that a car had crashed blocks away, Hima and his partners drove there. He
saw McKnight in the driver’s seat. Several damaged cars were nearby. Officers arrested McKnight
and searched the car. Hima opened the glove compartment and found a loaded gun.
¶9 Body-worn cameras captured the traffic stop and the scene after the crash. Clips of that
footage showed: (i) McKnight begins, then stops, unbuckling his seatbelt before driving off as
officers stand alongside the car, (ii) damaged cars at the crash site, and (iii) Hima finding a gun in
the glove compartment. The parties stipulated that McKnight had a prior felony.
¶ 10 The trial court found McKnight guilty. It later denied McKnight’s attack on the sufficiency
of the State’s proof, emphasizing McKnight “took off at a high rate of speed,” “got in an accident,”
and thus showed “extreme evidence of consciousness of guilt[.]”
¶ 11 Analysis
No. 1-23-0571
¶ 12 McKnight contends (i) the State failed to prove beyond a reasonable doubt that he
possessed the loaded gun and (ii) the statute barring felons from possessing firearms (720 ILCS
5/24-1.1(a) (West 2020)) is unconstitutional under our federal and state constitutions. We disagree.
¶ 13 Sufficiency
¶ 14 We assess the proof in the light most favorable to the State and ask if a rational trier of fact
could have found the elements beyond a reasonable doubt. [CITATION]. Possession is the pertinent element. 720 ILCS 5/24-1.1(a) (West 2020) (defining
possession as element of unlawful use or possession of weapons by felons). Possession can be
actual or constructive. See [CITATION] (noting pertinent statute prohibits
possession “on” and “about” a person). Because McKnight was not holding the gun, he did not
actually possess it. E.g., [CITATION] (State proved actual
possession by presenting officer testimony about seeing defendant toss gun).
¶ 15 The State proves constructive possession by establishing defendant (i) knew the gun was
present and (ii) had immediate and exclusive control over the area. [CITATION].
McKnight disputes both parts.
¶ 16 Control
¶ 17 Officers pulled McKnight over and, moments after the crash, again saw him sitting in the
car. McKnight was the driver; no one else was present, so the trier of fact could have found that
McKnight had immediate and exclusive control over the glove compartment. [CITATION] (“control of the vehicle rather than ownership of the vehicle which
is pertinent to proof of control of the area”).
No. 1-23-0571
¶ 18 McKnight does not dispute that, as the lone occupant, he drove and crashed the car. Instead,
he insists the State needed to present proof that he (i) owned the car or (ii) had “other possessions”
in it. The case he cites in support, however, demands nothing of the sort. In [CITATION], officers had not seen the defendant inside the car but had found his
possessions in it and knew the defendant was the registered owner. [CITATION], ¶¶ 4, 31, 42. Here, however, officer testimony and body cam footage proved McKnight’s
control. “[D]irect evidence of a defendant driving a vehicle is * * * sufficient evidence of control.”
Id. ¶ 42 (noting “issue of control is noncontroversial in the great majority of cases where a
defendant is stopped while actually driving a vehicle”).
¶ 19 Knowledge
¶ 20 McKnight contends his presence in the car was not proof he knew the loaded handgun was
in the glove compartment. He asserts that no evidence showed he (i) could see the gun from where
he sat, (ii) attempted to retrieve or conceal the gun, or (iii) owned the car or often used it. In
McKnight’s view, the absence of this evidence shows he did not know about the gun, rendering
evidence of his flight “meaningless.”
¶ 21 We disagree. When analyzing the State’s proof, “we review all the evidence, not some.”
[CITATION], ¶ 40 (citing Collins, 106 Ill. 2d at 261). McKnight
errs by excluding evidence of his flight, overlooking the relevance of his prior felony, and
minimizing his control over the car as its lone occupant.
¶ 22 Officers observed McKnight commit a traffic violation, speed away from the traffic stop
when asked to get out of the car, and later exit within arm’s reach of a loaded gun at the crash site.
These facts, together with McKnight’s felony conviction, allowed the trial court to infer McKnight
No. 1-23-0571
knew about the firearm’s presence. See [CITATION],
(“rational” inference defendant with prior felony was “armed” where his hands were near his waist
while fleeing on foot and gun was within arm’s reach at arrest).
¶ 23 To be sure, the trial court could not infer McKnight knew about the gun just because he
was in the car when stopped for a traffic violation. E.g., [CITATION]
¶¶ 36-47 (holding State failed to prove defendant knew firearm was present and embedded within
structure of driver’s seat). Rather, McKnight’s actions during the stop—speeding away rather than
getting out as the officers apparently directed—suggest a guilty conscience. Id. ¶ 44 (defendant
“did and said nothing during the encounter that would cause the officers to conjecture that he knew
about the handgun”); [CITATION] (flight from car while
ignoring demands to stop supported inference defendant possessed gun). And his felony, one that
barred him from possessing firearms (720 ILCS 5/24-1.1(a) (West 2020)), offered a basis for
inferring discovering the gun inspired his bolting from the stop.
¶ 24 The record does not reveal what the trial court meant when describing McKnight’s flight
as “extreme evidence.” We hold only that a factfinder could have found the elements of
constructive possession beyond a reasonable doubt. See [CITATION] (stating
standard). We affirm McKnight’s conviction for violating section 24-1.1(a).
¶ 25 Facial Challenge
¶ 26 McKnight also argues section 24-1.1(a) violates both the second amendment of the federal
constitution and article I, section 22 of the Illinois constitution. He raises a facial challenge, the
“ ‘most difficult challenge to mount successfully, ’ ” because it requires “ ‘establish[ing] that no
[SEGMENT 2]
set of circumstances exists under which [section 24-1.1(a)] would be valid.’ ” See [CITATION]
No. 1-23-0571
Rahimi, --- U.S. ----, 144 S. Ct. 1889, 1898 (2024) (quoting [CITATION]); see also [CITATION].
¶ 27 Two laws primarily drive McKnight’s challenge under both constitutions. The second
amendment provides: “A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. Section
24-1.1(a) provides: “It is unlawful for a person to knowingly possess on or about his person * * *
any firearm or any firearm ammunition if the person has been convicted of a felony[.]” 720 ILCS
5/24-1.1(a) (West 2020). We review McKnight’s challenge de novo ([CITATION]) and hold it fails.
¶ 28 Federal Constitution
¶ 29 McKnight contends that a law like section 24-1.1(a) “would have been unknown to those
who ratified the [c]constitution” and thus violates the second amendment. He notes the State has
the burden to justify section 24-1.1(a). But, because he attacks the law before this court for the
first time ([CITATION]), he proceeds in two steps. See [CITATION] (holding second amendment protects right
to public carry and clarifying analytical framework courts must apply).
¶ 30 First, McKnight contends “all Americans,” even those with prior felony convictions, “fall
within the [s]econd [a]mendment’s protections” for “the people.” Next, he contends no “true
historical analogue” to section 24-1.1(a) exists because historical bans focused on “actual
dangerousness, not status or criminal history.” In his view, “shall not be infringed” means no law
can now ban McKnight from firearm possession.
¶ 31 Applicability of Second Amendment
No. 1-23-0571
¶ 32 The first step under Bruen asks whether the second amendment’s plain language covers
McKnight’s conduct. [CITATION] at 18. McKnight contends his conduct, possessing a firearm,
“presumptively” falls within the second amendment’s sweep. [CITATION], ¶ 87, pet. for leave to appeal, No. 130153 (filed Oct. 30, 2023) (holding second
amendment’s “keep and bear arms” language encompasses possession); but see [CITATION], ¶ 26 (discussing split in authority on this issue); [CITATION]
(same). We assume without deciding that the second amendment’s protection of “the people” includes McKnight.
¶ 33 History and Tradition
¶ 34 The second step asks whether section 24-1.1(a) is rooted in this nation’s history and
tradition of firearms regulation. [CITATION] at 33-34. McKnight contends no “true historical
analogue” to section 24-1.1(a) exists because historical bans focused on “actual dangerousness,
not status or criminal history.” We disagree.
¶ 35 Any search for a true historical analogue, as McKnight understands it, misplaces the
Supreme Court’s focus. See [CITATION]; see also id. at 1925 (Barrett, J., concurring)
(“historical regulations reveal a principle, not a mold”). Instead, we ask whether section 24-1.1(a)
aligns with the “principles that underpin our regulatory tradition.” Id. at 1898.
¶ 36 Reasoning by analogy, as [CITATION] instructs, section 24-1.1(a) finds historical analogues in
laws pre-dating our country’s founding. Early English kings, Parliament, North American
colonists, and American founders all “believed that certain classes of people posed a great risk of
violence[:] Thus, until those individuals could show they did not pose such a risk, they could be
forbidden from owning firearms.” [CITATION]; see also [CITATION]
No. 1-23-0571
230113, ¶ 31 (noting “concept of disarming criminals dates at least to Pennsylvania's ratifying
convention”).
¶ 37 Governments then and now have presumptively disarmed entire groups. [CITATION] Section 24-1.1(a) presumptively disarms people with felony convictions but does
not violate the second amendment. Rather, section 24-1.1(a) controls the dangers posed by
firearms and those who might use them to harm. See [CITATION].
Contrary to McKnight’s contention, historical analogues to section 24-1.1(a) would have been
known to our founders: Section 24-1.1(a) does not violate the second amendment.
¶ 38 Illinois Constitution
¶ 39 McKnight concedes his “substantive analysis” under the federal and state constitutions is
“the same.” Thus, his contention under article I, section 22 of the Illinois constitution fails for
similar reasons. See [CITATION].
¶ 40 Additionally, because we have assumed “the people” under the second amendment
includes McKnight, we need not address his claim that our constitution’s use of “the individual
citizen” somehow differs from the federal constitution’s use of “the people.” Likewise, we need
not decide whether our constitution’s use of “[s]ubject only to the police power” improperly limits
his right under the second amendment.
¶ 41 Affirmed.
2024 IL App (1st) 221562-U
No. 1-22-1562
First Division
September 30, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 21 CR 10721
v. )
)
SONNIE MARTIN, ) Honorable
) Vincent M Gaughan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for unlawful possession of a weapon by a felon is affirmed
where (1) the evidence was sufficient to prove beyond a reasonable doubt that he
possessed a firearm within the meaning of the statute, (2) the trial court properly
denied his motion to suppress, and (3) his as-applied constitutional challenge under
the second amendment is without merit.
¶2 Following a bench trial, defendant-appellant Sonnie Martin was found guilty of unlawful
possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2020)) and sentenced to No. 1-22-1562
44 months’ imprisonment. Defendant appeals therefrom, arguing that (1) there was insufficient
evidence to find him guilty of UPWF beyond a reasonable doubt; (2) the trial court erred in denying
his motion to suppress; (3) his conviction for UPWF violates the second amendment of the United
States Constitution; and (4) his 44-month sentence was excessive. 1 For the reasons that follow, we
affirm.
¶3 I. BACKGROUND
¶4 On August 13, 2021, defendant was charged by indictment with one count of UPWF and
two counts of aggravated unlawful use of a weapon based on an investigatory stop and subsequent
search which took place on July 21, 2021.
¶5 Prior to trial, on December 7, 2021, defendant filed a motion to suppress evidence alleging
that the police did not have reasonable, articulable suspicion to stop him, and therefore, the weapon
seized from his person was inadmissible as evidence. A hearing was conducted contemporaneously
with the trial at which the following evidence was presented.
¶6 Chicago police officers Cesar Cuevas and Jose Granados both testified as to the following
facts. On July 21, 2021, while in their police vehicle, they received a dispatch call from the Office
of Emergency Management and Communications (OEMC) at 5:49 p.m., which relayed a 911 call
from an anonymous person who reported a person “flashing a gun” at the Falcon Fuel gas station
located at the intersection of 79th Street and Ashland Avenue. The subject was described as a black
male wearing a white T-shirt, black jeans, and orange, purple, and green shoes. After the dispatch
call recording was played in court, Cuevas testified that the dispatcher did not say that the caller
Because defendant’s sentence has been discharged, he has withdrawn the issue of excessive
sentence as moot. See [CITATION] (noting that “the completion of a defendant’s sentence renders a challenge to the sentence moot”).
[SEGMENT 3]
No. 1-22-1562
observed a person flashing a gun, how long it had been since the caller said there was a person
flashing a gun, or how the caller knew there was a person flashing a gun.
¶7 The officers drove towards the Falcon Fuel gas station where they observed an individual
matching the description in the parking lot of the gas station. The person was a black male wearing
a white T-shirt, black jeans, and orange, purple, and green shoes. The officers, along with
additional police officers in another police vehicle behind them, detained the person, who Cuevas
and Granados identified in court as defendant. This occurred one to two minutes after receiving
the dispatch call. Cuevas confirmed that, upon first seeing defendant, he was not doing anything
illegal.
¶8 Defendant was instructed to stop and place his hands on the wall. The officers proceeded
to handcuff defendant as Cuevas asked defendant if he had any weapons on his person. Defendant
responded, “my protection,” which Cuevas understood to mean that defendant had a weapon on
him. Defendant’s shirt was lifted, which revealed a weapon in his waistband. Granados recovered
the weapon, and eventually defendant was placed in the other police vehicle to be transferred to
the police station. Granados “cleared the weapon for any bullets and discovered one chambered
bullet in the firearm.” Granados testified that, based on his four years’ experience as an officer and
his further examination of the weapon at the police station, the weapon he recovered was a firearm.
In court, Cuevas viewed the inventoried items, which he stated were “1 live round in my hand, the
black steel 9-millimeter handgun and then empty magazine.” In looking at the recovered weapon,
he noted that it looked like the serial number had been scratched off. Cuevas further confirmed
that the officers did not speak with anyone else at the gas station and did not request any security
footage and that no one else at the gas station matched the 911 caller’s description.
No. 1-22-1562
¶9 The recovered weapon was eventually sent to the Forensic Services Division. Both officers
testified that they did not request the Forensic Sciences Division to conduct any tests or further
analyze the weapon. Cuevas testified that he knew there were tests to recover scratched-off serial
numbers, but Granados was not aware of those tests at the time. Both officers also testified that
the recovered magazine did not fit the weapon and a part of it seemed to be missing.
¶ 10 The body-worn cameras on both Cuevas and Granados were active and functioning
properly that day. Footage from both body cams was played before the court.
¶ 11 In the footage from Cuevas’s body cam, the officers arrive at the gas station, immediately
spot an individual matching the description, and defendant is instructed to place his hands on the
wall. One of the officers then brings his hands around his back to place them in handcuffs, as
another officer asks, “You got anything on you?” and defendant responds, “Yes. My protection.”
As they lift defendant’s shirt, a weapon is visible in his waistband, which is then recovered. Cuevas
walks towards Granados who states that there was one bullet in the chamber and notes that the
magazine does not appear to fit the weapon. One of the other officers is heard asking defendant if
he has a firearm owner’s identification (FOID) card or a concealed carry license (CCL), but a
response, if offered, is not audible. Cuevas then returns to the vehicle to run defendant’s driver’s
license and Granados places the recovered items in the police vehicle. Granados states, “I don’t
even know what kind of gun that is.” He also states, “it’s a fake gun” and “it’s a BB-gun.” Cuevas
responds, “We can figure it out at the station.”
¶ 12 Granados’s body cam footage reflects the same sequence of events. In particular, he is seen
recovering the weapon from defendant’s waistband. He pulls the magazine out and eventually
removes a bullet from the chamber of the weapon. Later, after Cuevas states, “We can figure it out
at the station[,]” Granados walks back towards the other police vehicle to instruct the other officers
No. 1-22-1562
to drive defendant to the station. He then states, “I don’t think the gun is real.” Chicago police
officer Edwards 2 agrees, stating “That’s what I thought.” Granados responds, “It looks like a f***
BB-gun. I guess we’ll figure it out at the station.” Granados returns to his vehicle and the footage
ends.
¶ 13 On cross-examination, Granados testified that the magazine did not fit neatly within the
weapon which made him suspicious that it was not a real gun. He further testified that he examined
the gun and “[a]t the beginning” he thought it was a BB-gun or a fake gun. He also testified that it
appeared that part of the gun was wood, which he found inconsistent with other firearms. He also
confirmed that there was an orange dot on the weapon, which is consistent with BB-guns. He
confirmed that the reason for the orange dot was to distinguish between a real firearm and a BB-
gun. He elaborated that: “At the beginning when I first started looking at it I wasn’t sure until
further on. I kept on looking at all the aspects making sure I had a real firearm which ended up
being *** a real firearm.” When asked to clarify, he stated:
“So once I took the magazine out I realized that it was a broken magazine which is
a real magazine but the magazine has a spring inside. The bottom part, which was there
was supposed to hold the spring which the bullets go through the top and that firearm didn’t
have that. *** [T]hey broke that off.
Then there is a part in the gun where there’s supposed to be a serial number. That
serial number was not there. It appeared to be scratched off somehow. That’s how I knew
it was a firearm and then in the back of the gun there’s a pin which it’s supposed to – when
Officer Edwards’s first name does not appear in the record.
================================== No. 1-22-1562
you hit the trigger the pin hits the bullet which makes it fire and that pistol has a pin in the
back. If you look at the back of the gun[,] there is that pin right there.”
¶ 14 Specifically, as to the serial number, Granados testified that “where the serial number is
supposed to be[,] [t]here was one letter and there’s supposed to be a number following it. There
was no number there.” When asked when he changed his mind that the weapon was in fact a real
gun, Granados responded: “Once I got to the station and I viewed the – I had time to view the
pistol because I can’t really – I have to be watching my surroundings while I’m on the street
especially in the area I was at.”
¶ 15 After both witnesses concluded their testimony, the State sought to present a firearms
expert as a witness, but the trial court denied the State’s motion. The parties then stipulated that
defendant had a 2017 felony conviction for delivery of a controlled substance, for which he
received two years’ probation.
¶ 16 The trial court first ruled on defendant’s motion to suppress, finding that the officers had
reasonable suspicion to stop defendant. This finding was based on the specific description given
in the 911 call, defendant matching the description, and the brief time that elapsed from the
dispatch call to the officers’ stop. The trial court also found that the officers’ detainment of
defendant as well as the lifting up of his shirt were within the scope of a Terry stop, and once they
saw the weapon, they had probable cause to arrest him.
¶ 17 As to the bench trial, the trial court found that the State had proved “each and every
element” beyond a reasonable doubt for the charge of UPWF. We note that, prior to ruling, the
court stated: “I don’t like the idea of Officer Cuevas saying, [‘]We’ll take care of it at the station.[’]
That was nonsense because nothing was taken care of.”
No. 1-22-1562
¶ 18 Defendant filed a motion to reconsider or, alternatively, for a new trial, asserting that the
State failed to prove the offense beyond a reasonable doubt and that the trial court erred in denying
the motion to suppress evidence. The trial court denied this motion.
¶ 19 Following a sentencing hearing, defendant was sentenced to 44 months’ imprisonment with
641 days of credit. On the same day, defendant filed a motion to reconsider the sentence, which
the trial court denied.
¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues that (1) there was insufficient evidence to find him guilty of
UPWF beyond a reasonable doubt; (2) the trial court erred in denying his motion to suppress; and
(3) his conviction for UPWF violates the second amendment of the United States Constitution.
¶ 23 A. Sufficiency of the Evidence
¶ 24 Defendant first contends that the evidence presented was insufficient to establish his guilt
beyond a reasonable doubt. In particular, defendant argues that the State failed to prove that
defendant possessed a “firearm” where the body cam video showed “the officers examining the
item and stating it was a BB-gun[.]” In his reply brief, defendant further argues that “there was no
[SEGMENT 4]
evidence that Granados further examined the item at the station” and points out that the trial judge
commented on the officers’ failure to actually analyze the gun at the station as they insinuated they
would.
¶ 25 The State responds that defendants’ argument lacks merit where a live bullet was found in
the chamber of the weapon and both officers identified the weapon as being a “real” nine-
millimeter handgun based on their training and experience. The State also contends that the
argument fails because the trial court had the opportunity to observe the gun, its magazine, and the
No. 1-22-1562
recovered bullet, and based on that evidence, the trial court correctly found that each element of
the offense had been proved.
¶ 26 When a defendant challenges the sufficiency of the evidence against him, this court must
determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’ ” (Emphasis in original.) [CITATION] (quoting [CITATION]). A reviewing court will not retry the defendant or substitute
its judgment for that of the trier of fact regarding the credibility of witnesses or the weight to be
given to each witness’s testimony. [CITATION]. A defendant’s
conviction will be reversed only when the evidence is so unreasonable, improbable, or
unsatisfactory that it creates a reasonable doubt of his guilt. [CITATION], ¶
24.
¶ 27 The State has the burden of proving beyond a reasonable doubt each element of an offense.
[CITATION], ¶ 35. To sustain a conviction for UPWF, the evidence must
establish beyond a reasonable doubt that the defendant possessed a firearm and was convicted of
a prior felony. 720 ILCS 5/24-1.1(a) (West 2020). The parties stipulated to defendant’s prior felony
conviction, and thus, the only element at issue before this court is whether defendant possessed a
firearm.
¶ 28 The FOID Act defines a “firearm” as any device “designed to expel a projectile or
projectiles by the action of an explosion, expansion of gas or escape of gas[.]” 430 ILCS 65/1.1.
(West 2020). Additionally, to qualify as a firearm under the statute, the device cannot fall into one
of four exceptions: BB-guns, paintball guns, flare guns, or certain antique firearms. Id.
No. 1-22-1562
¶ 29 It is well established that the positive and credible testimony of a single witness is sufficient
to sustain a conviction. [CITATION]. In particular, “courts
have consistently held that eyewitness testimony that the offender possessed a firearm, combined
with circumstances under which the witness was able to view the weapon, is sufficient to allow a
reasonable inference that the weapon was actually a firearm.” [CITATION]. Additionally, video evidence showing a defendant with a gun has been
sufficient to prove the defendant possessed a firearm. [CITATION].
¶ 30 In this case, the record shows that both police officers viewed the recovered weapon during
the bench trial and testified that it was a real firearm. See [CITATION]. Further, a 9-
millimeter live round was found in the chamber of the firearm, which also supported the finding
that the recovered weapon was a firearm and not a BB-gun. Although both officers acknowledged
at trial that the gun was initially suspected to be fake or a BB-gun, they later determined that it was
a firearm as defined in the FOID Act. Contrary to defendant’s assertion, Granados specifically
testified that he further examined the firearm at the station “where he had time to view the pistol”
and he explained precisely what led him to believe upon further examination that it was a “real”
firearm. Additionally, there were no inconsistencies in the officers’ testimony, and thus, their
No. 1-22-1562
testimony remained unimpeached. In any case, this court cannot substitute its judgment for that of
the trier of fact regarding witness credibility. As such, we conclude that the trial court’s finding
that all elements of the offense were met was supported by sufficient evidence.
¶ 31 Nonetheless, defendant asserts that, because Granados initially commented that the gun
might not be real or might be a BB gun, his testimony identifying the weapon as a real firearm
should be discounted and is not sufficient to sustain his conviction. Citing [CITATION], defendant specifically contends that, as there was some contrary evidence
that the weapon was a fake gun or a BB-gun, the trial court could not have properly found that it
was a firearm as defined in the FOID Act.
¶ 32 In [CITATION], the defendant was convicted of armed robbery following a bench trial. Id. ¶ 1.
On appeal, the defendant argued that there was no evidence that the item in his hand met the
statutory definition of a firearm where the gun was never recovered and there was no detailed
description of the gun. Id. ¶ 41. The record showed that the victim testified that she saw the
defendant holding a gun and stated “I seen [sic] a whole gun. It was rested on the [counter], his
hand was on it, it was black.” Id. ¶ 51. In concluding that there was sufficient evidence for a rational
trier of fact to find that defendant was armed with a gun that met the statutory definition of a
firearm, the court stated that “[t]here was no contrary evidence presented that the gun was a toy
gun, a BB gun, or anything other than a ‘real’ gun.” Id. ¶ 52. The court based its conclusion on the
victim’s “unequivocal testimony and the circumstances under which she viewed the gun, coupled
with the videotape of the offense and still photograph[.]” Id.
¶ 33 Defendant misreads [CITATION] and improperly broadens its import to effectively conclude
that any contrary evidence that the gun was anything other than a real firearm would result in
insufficient evidence to prove that element. The fact that there is conflicting evidence does not
- 10 -
====== End of the Part of the Court Ruling ====== No. 1-22-1562
render it insufficient for conviction. Rather, even where there is conflicting evidence presented at
trial, the trier of fact is free to weigh the evidence, determine the credibility of witnesses, and come
to any rational conclusion as to the sufficiency of the evidence. See [CITATION]. The trial court, as the trier of fact in a bench trial, did just that in this case.
¶ 34 Additionally, defendant’s argument that Granados’s testimony should be discounted in its
entirety based on his statements at the scene is effectively a request for this court to second-guess
the trier of fact’s weighing of the evidence. As we have already made clear, to reweigh the evidence
would usurp the role of the trier of fact. See [CITATION] (“The reviewing court
‘will not retry the defendant, nor will we substitute our judgment for that of the trier of fact.’”).
¶ 35 Even accepting defendant’s seeming invitation to us to reweigh the evidence, his
insufficiency argument would nonetheless fail. Although Granados did state at the scene that the
gun was either fake or a BB-gun, he testified consistently at trial that, after examining the weapon
in greater detail and with better focus at the station, his opinion changed and he determined that it
was, in fact, a real firearm. While viewing the weapon in court, he provided the following reasons
to support his determination: the gun’s serial number had been scratched off; the gun had a pin in
it, which is consistent with real firearms; and the magazine did not fit in the gun simply because it
was broken. We acknowledge, as did the trial court, Granados’s initial uncertainty regarding the
weapon while at the scene. Clearly the trial court was aware of and considered Granados’s initial
speculation and the officers’ failure to submit the firearm for further analysis but ultimately
decided that the officers’ testimony was sufficiently credible to find that defendant possessed a
firearm as contemplated in the FOID Act. In so finding, the court relied on Granados’s testimony
that he investigated the firearm further and determined it was a firearm, as well as Cuevas’s
testimony that the weapon was a 9-millimeter handgun. Our reviewing courts have declined to
- 11 - No. 1-22-1562
“establish a minimum requirement” for proving that a defendant possessed an actual firearm
([CITATION]), and therefore, under the applicable standard of review,
we cannot say that the trial court’s conclusion based on the officers’ testimony at trial was
unreasonable.
¶ 36 Defendant also relies on [CITATION] for support. In [CITATION],
the defendant was convicted of armed robbery. Evidence at trial was to the effect that the arresting
officer drove the robbery victim back to the scene of the offense and the victim pointed out the
defendant, who was then arrested. [CITATION] As the officer approached the defendant, he observed
him throw something into a bush. [CITATION] A gun was retrieved from the bush, but it was not offered
into evidence at trial. [CITATION] However, the officer described it as a “ ‘4.5 BB caliber gun with a three
inch barrel.’ ” [CITATION] The inventory sheet in the record listed the gun consistently with the officer’s
[SEGMENT 5]
testimony. [CITATION] The victim described the gun as “ ‘a black, very portable gun.’ ” On appeal, the
supreme court concluded that the evidence was insufficient to support the trier of fact’s inference
that the “gun” the defendant possessed constituted a dangerous weapon. [CITATION] This conclusion
was based on the evidence that the gun was in fact a small BB gun and the lack of evidence
regarding whether it was loaded, whether it was brandished as a bludgeon, or regarding its weight
or composition. [CITATION]
¶ 37 This case is distinct from [CITATION] in the obvious fact that the officers in this case, although
originally speculating that the weapon was a BB gun or a fake gun, both testified at trial that it was
a “real” firearm. In [CITATION], there was no dispute that the weapon was, in fact, a BB gun. [CITATION]
Moreover, the issue in [CITATION] was markedly different where the trier of fact was deciding whether a
small BB gun could be considered a dangerous weapon under the armed robbery statute, not
whether the weapon could be considered a firearm under the FOID Act.
- 12 - No. 1-22-1562
¶ 38 Rather, the State offers [CITATION], and we agree.
In that case, a police officer, who was about 50 feet away, observed the defendant leave the
building she was surveilling “ ‘carrying a silver handgun’ ” and leaving the area in a white van.
Id. ¶ 4. The officer followed the van, which was quickly stopped by other police officers. Id. After
the occupants, which included the defendant and two other individuals, exited the van, a handgun
was recovered from underneath the van near the door from which the defendant exited. At trial,
the officer described the item recovered as “ ‘the same color [and] size of the handgun I saw the
gentleman enter the van with.’ ” Id. ¶¶ 5-8. The officer further testified that she had 12 years of
experience as a police officer and was familiar with handguns. Id. ¶ 6. The gun was not offered
into evidence at trial, and it was not tested for fingerprints. Id. ¶¶ 8-9. The appellate court reversed
the defendant’s conviction for being an armed habitual criminal, reasoning that, in the case of
possessory firearm offenses, the item possessed cannot be inferred to be a firearm from
circumstantial evidence. Id. ¶ 17.
¶ 39 Our supreme court reversed this court and concluded that a rational trier of fact could infer
from the testimony presented *** that [the] defendant possessed a firearm” as defined by the
statute. Id. ¶ 35. This conclusion was based on the clear and unimpeached testimony of the officer
who first observed the gun and another officer’s testimony that the recovered weapon matched the
description and was fully loaded and had to be unloaded when it was recovered. Id. ¶¶ 36-37.
¶ 40 Although there were no initial speculations in [CITATION] regarding the weapon’s
authenticity, we nonetheless find [CITATION] helpful. Notwithstanding Granados’s statements,
greater evidence was presented at trial that the recovered weapon was a firearm. Unlike [CITATION],
here, the recovered weapon was presented in court, along with a live round found in the weapon’s
chamber; the testifying officers viewed the weapon during the bench trial; and Granados
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specifically offered several reasons as to why he later determined at the police station that the
firearm was not a BB gun or a fake gun but was, in fact, a real gun. Additionally, in reversing the
appellate court, the supreme court in [CITATION] rejected the notion that there must be some direct
or physical evidence proving that an item is a “real” firearm. This supports our earlier point that
there is no minimum evidentiary requirement for firearms identification, and thus, the trial court
here was free to conclude, based on the evidence presented, that the firearm fell within the statutory
definition, even without a firearms expert or forensic analysis.
¶ 41 Because the credible testimony of experienced police officers can support a finding that a
weapon is a firearm as defined by statute, we do not find the trial court’s finding that defendant
possessed a firearm so unreasonable, improbable, or unsatisfactory that there is a reasonable doubt
as to defendant’s guilt. See [CITATION]. Accordingly, viewing the evidence in the light most favorable to the State, as we must, we conclude that there was
sufficient evidence to support defendant’s conviction for UPWF.
¶ 42 B. Motion to Suppress
¶ 43 Next, defendant argues that the trial court erred in denying his motion to suppress because
the officers relied solely on an anonymous tip and lacked reasonable suspicion or probable cause
to stop, search, and arrest defendant. Defendant relies on [CITATION], as
well as [CITATION], for support of his argument.
¶ 44 In response, the State contends that the stop of defendant was permissible as it was
predicated on reasonable suspicion created by the anonymous 911 call that provided a detailed
description of the suspect. For support, the State cites [CITATION], where
our supreme court recently assessed a stop based on an anonymous 911 call. The State also asserts
that the officers had valid probable cause to arrest defendant based on the weapon recovered from
- 14 - No. 1-22-1562
his person. For the reasons that follow, we agree with the State and conclude that the trial court
properly denied the motion to suppress.
¶ 45 The standard for reviewing a trial court’s ruling on a motion to suppress is twofold. First,
the trial court’s factual findings and credibility determinations are subject to the manifest weight
of the evidence standard. [CITATION]. A finding is against the
manifest weight “ ‘only when an opposite conclusion is apparent or when findings appear to be
unreasonable, arbitrary, or not based on evidence.’ ” [CITATION], ¶ 21 (quoting [CITATION]). This deferential standard is based
on the supposition that the trial court is in “a superior position to determine and weigh the
credibility of the witnesses, observe the witnesses’ demeanor, and resolve conflicts in their
testimony.” [CITATION]. Second, the trial court’s ultimate legal ruling, i.e. whether
the evidence should be suppressed, is reviewed de novo. Id.
¶ 46 The fourth amendment to the United States Constitution provides the “right of the people
to be secure in their persons, houses, papers and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const., amend. IV. The reasonableness requirement of the
fourth amendment generally requires a warrant supported by probable cause. [CITATION].
“Probable cause exists where the facts and circumstances, considered as a whole, are
sufficient to justify a belief by a reasonably cautious person that the defendant is or has been
involved in a crime.” [CITATION], ¶ 25.
¶ 47 An exception to the warrant requirement exists where officers conduct an investigatory
stop, also known as a Terry stop, based on reasonable suspicion that a crime has been or is about
to be committed. [CITATION]; see [CITATION] (setting forth the principles for determining the reasonableness of a temporary investigative
- 15 - No. 1-22-1562
stop). An officer may make an investigatory stop of any person if he or she “reasonably infers
from the circumstances that the person is committing, is about to commit or has committed” a
criminal offense. 725 ILCS 5/107-14(a) (West 2020). The relevant question is whether the facts
available to the officer would warrant a person of reasonable caution to believe that the action
taken was appropriate. [CITATION]. This analysis
necessitates a balance of the need for the seizure against the invasion that the seizure entails. [CITATION].
¶ 48 Further, “reasonable suspicion is a less exacting standard than probable cause,” and an
investigatory stop may be justified even “when no violation of the law is witnessed, so long as it
does not constitute a mere hunch.” [CITATION]. An officer “must
point to specific, articulable facts that, taken together with rational inferences, reasonably warrant
the intrusion.” Id. As relevant here, where the investigatory stop is based on information from a
third party, the tip must be reliable and allow “an officer to reasonably infer that a specific person
was involved in criminal activity.” [CITATION]. In
assessing the reliability of a tip, the court must consider whether the officers’ observations
corroborate the tip, whether the informant explains the basis for his knowledge of the tip, and the
duration of time between receiving the tip and acting upon it. [CITATION].
¶ 49 Here, the State satisfied its burden of establishing that the officers’ investigatory stop was
appropriate based on the information available to them at that time. Both officers testified that they
received a dispatch call relaying a 911 call that a person was “flashing a gun” at a gas station and
this person was wearing a white T-shirt, black pants, and orange, green, and purple sneakers. This
dispatch call was included in the record and played during the bench trial. Although the officers
- 16 - No. 1-22-1562
[SEGMENT 6]
presumed that the report was based on the 911 caller’s personal observation, the call did not
explicitly make that clear. Less than two minutes after the dispatch call, the officers arrived at the
gas station and immediately observed defendant who precisely matched the description and,
according to Cuevas, no one else at the gas station matched the description. The body cam footage
also showed that defendant matched the description including the distinctively colored sneakers.
This observation of a person matching the description corroborated the 911 call and from that an
inference of credibility was warranted. [CITATION]; see also [CITATION]
not truly anonymous because the caller can be identified and subjected to criminal charges if a
false report has been made).
¶ 50 The officers then detained defendant and, based on the information gleaned from the 911
call, they began handcuffing him and asked if he had anything on his person. Under these
circumstances, the handcuffing was reasonable as the officers already reasonably suspected, based
on the 911 call and defendant’s matching description, that he was armed with a weapon. See
[CITATION] (handcuffing a person does not necessarily convert a Terry stop into an
arrest). When defendant responded that he had his protection, which Cuevas understood to mean
a weapon, the officers lifted his shirt, revealing a gun in his waistband. See [CITATION] (“A weapons frisk is valid only when the officer has reason to believe that
a particular individual is armed and dangerous.”); see also [CITATION] (Police officers “are not required to risk their safety by assuming that a suspect will
submit peacefully to questioning.”). Based on this, the trial court determined that the investigatory
stop was proper, and there is nothing in the record that persuades us that an opposite conclusion
was apparent or that the court’s decision was arbitrary or unreasonable. See [CITATION]
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Ill. App. 3d 26, 31 (2000) (the scope of the investigation must be reasonably related to the
circumstances that justified the police interference and the investigation must last no longer than
necessary to effectuate the purpose of the stop); see also [CITATION] (noting, if articulable facts support a reasonable suspicion that a person has committed a
criminal offense, police may stop the person to identify him, question him briefly, or detain him
briefly while attempting to obtain additional information).
¶ 51 In coming to this conclusion, we have considered the cases upon which each party relies
for support of their respective positions as to the reliability of the 911 call.
¶ 52 We begin with defendant’s request that we follow the decision of [CITATION], to conclude that the 911 call here did not provide the officers with reasonable suspicion
to justify the investigatory stop. In [CITATION], an anonymous caller reported to the police that a young
black male wearing a plaid shirt was standing at a bus stop carrying a gun. Id. at 268. No audio
recording of the tip was provided, and nothing was known about the caller. Id. It was also unknown
how much time after receiving the call officers were instructed to respond. Id. When the officers
arrived at the bus stop, they observed an individual matching the description, and although the
defendant did not make any furtive movements and did not visibly appear to have a gun, the
officers detained him, frisked him, and seized a gun from his pocket. Id.
¶ 53 The Supreme Court held that the anonymous tip by itself was insufficient to justify the
Terry stop. Id. at 272. In determining that the tip did not give rise to reasonable suspicion, the
Court specified its deficiencies: there was no predictive information, the informant was
unaccountable, and the informant did not explain how he had obtained this information regarding
a concealed weapon. The Court thus reasoned that an anonymous tip must be reliable in “its
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tendency to identify a determinate person” and “its assertion of illegality” and those requirements
were not satisfied in the case before it. Id. at 272.
¶ 54 In contrast to J.L., the tip here was slightly more specific in its description of the person
including both the color of the person’s pants and the distinctive coloring of his sneakers and the
tip was corroborated where a person matching the description was observed only one to two
minutes after the dispatch call. Additionally, the use of the emergency system for the anonymous
caller in this case is a significant distinction from the call made in J.L.
¶ 55 Finally, there was an assertion of suspected illegality in the call here that was not present
in J.L. Here, the caller stated that the person was “flashing a gun” at the gas station. The applicable
definitions of “flash” in this context are: “to make known or cause to appear with great speed,” “to
display obtrusively and ostentatiously,” or “to expose to view usually suddenly and briefly[.]”
Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/flash (last
visited September 9, 2024). The fact that the caller used the word “flashing” suggests that the
person was doing so repeatedly or consistently, and it is significant that the person was doing this
in a public place. Even if the person had both a FOID card and a CCL, exposing the handgun in
public would constitute a violation of the Concealed Carry Act (430 ILCS 66 et seq. (West 2020)).
See [CITATION], ¶ 37 (individuals are implicitly prohibited from
carrying fully exposed handguns in view of the public). From the foregoing, it would be reasonable
to infer that (1) the caller personally observed this behavior and, (2) the person “flashing a gun” is
not a law-abiding citizen in lawful possession of a firearm. See [CITATION] (stating a
reasonable suspicion of criminal activity may arise from “unusual conduct” that may lead an
officer to believe “criminal activity may be afoot”). In contrast, the caller in J.L. merely stated the
person at the bus stop was in possession of a gun. Thus, it was unclear how a bystander could have
- 19 - No. 1-22-1562
knowledge of a concealed weapon and there was no report of conduct that suggested illegal
activity. For these reasons, we find J.L. distinguishable.
¶ 56 Defendant also relies on [CITATION]. There, a different
panel of this district found that an “effectively anonymous” tip “did not support a finding of
reasonable suspicion” and “reverse[d] the trial court’s denial of [the defendant’s] motion to
suppress.” Id. ¶ 18. The tip in [CITATION] came from a Chicago Park District security guard who
informed a Chicago police sergeant that a man, “described as black, about five-and-a-half feet tall,
wearing a purple shirt and black jeans” was in the park with a gun in his pocket. Id. ¶ 1. That
sergeant then relayed this information to two Chicago police officers, who found someone
matching that description within two to three minutes. Id. Those officers conducted a Terry stop
and frisk on the defendant and recovered a firearm. Id. ¶ 2.
¶ 57 The tip in [CITATION] has one significant commonality with the tip in J.L., which is that the
tipster did not provide any basis for their knowledge that a weapon was concealed on either of the
respective defendants. That commonality is not present here where the 911 caller specifically
stated that the individual was “flashing a gun” outside of a gas station and the dispatch call also
relayed that same phrasing to the responding officers in this case. Certainly, this does not constitute
demonstrative proof of illegality. See [CITATION] (quoting [CITATION]) (Reasonable suspicion does not require police
to “ ‘rule out the possibility of innocent conduct.’ ”). However, it is more sufficient than the mere
statements in [CITATION] and J.L. of a person in possession of a gun without explaining how the tipster
knew that information and how that conduct implicated potential criminal activity.
¶ 58 The State relies, instead, on [CITATION], a recent case in which our
supreme court assessed the reliability of an anonymous tip. There, officers received a dispatch,
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like here, from the OEMC stating that an anonymous caller reported that a white male wearing a
black jacket and hooded sweatshirt was “swinging” at two females and that he had a gun on him.
[CITATION] The caller identified the intersection at which the group was located. [CITATION] Police arrived at
the intersection two or three minutes after receiving the dispatch but did not see anyone matching
the individuals described. [CITATION] Another dispatch call came through, relaying additional
information from the caller that the group was walking two blocks north of the intersection. [CITATION]
The officers relocated to that area within two to four minutes and observed a white male matching
the caller’s description, who was holding the right side of his waistband. [CITATION] The two women were
not seen nearby, and the testifying officer did not see the defendant violate any laws. [CITATION] The officer
detained the defendant, and based on the call and his own observations, he patted down the
[SEGMENT 7]
defendant for his own safety and recovered a revolver from his waistband. [CITATION] The circuit court
denied his motion to suppress, and this court affirmed. [CITATION]
¶ 59 Our supreme court agreed, holding that the officers had the necessary reasonable suspicion
for an investigatory stop. [CITATION] Relying on Navarette v. California, [CITATION], the
court noted three indicia of reliability for anonymous tips: when the caller claims eyewitness
knowledge of criminal activity; when the time between the suspected criminal activity and the
officers’ response is brief; and when the caller uses the 911 emergency system to make their report.
[CITATION] The court found each of these present in the case before it where the tip was made through
the 911 system; it was a reasonable inference that the tipster observed the suspected criminal
activity firsthand as the tipster gave updated information through a second call; and the information
was relayed shortly after it was observed. [CITATION] The court further pointed to the officer’s
corroboration of the tip where he saw someone matching the description and he observed what
appeared to be an attempted concealment of a firearm. [CITATION]
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¶ 60 Additionally, the court rejected an attempt to analogize the defendant’s case to that of [CITATION] ¶ 31. The court pointed out several distinctions between the case before it and the facts in [CITATION]:
(1) the officer personally observed conduct that led him to believe that the defendant was
concealing a firearm; (2) the tip came through the 911 system; (3) the tipster seemed to have
firsthand knowledge of the suspected criminal activity; and (4) the tip involved more than just the
possession of a firearm as the tipster also stated that the individual was “swinging at” two females.
[CITATION]. As we have explained above, we find the facts before us provide greater indicia of reliability
than those in [CITATION]. Indeed, our facts share more commonalities with [CITATION] because the tip came
through the 911 system, it involved more than just possession of a firearm where the caller stated
the person had been “flashing a gun” at the gas station, and that statement suggested that the caller
personally observed the flashing of the weapon, even though not stated explicitly.
¶ 61 We also find [CITATION], to which the State also cites, instructive. The 911 caller in
[CITATION] reported that another driver ran her off the road and she identified the make, model,
license plate number, the mile marker, and the direction of travel. [CITATION] at 395-97. The police found
the matching car and pulled the defendant over about 15 minutes later. [CITATION] at 396-97. The Supreme
Court found the 911 call there distinguishable from the unknown tip in [CITATION]. In contrast to [CITATION], the
caller had firsthand knowledge of the criminal activity, the officers’ observation of the car only a
brief time later suggested the caller’s reliability, and the caller exposed herself to identification
and accountability by using the 911 system. [CITATION] at 399-401. Nonetheless, the Court admitted that
it was a “close case.” [CITATION] at 404. For the same reasons stated in regards to [CITATION], we find [CITATION]
sufficiently analogous. Although we may consider this to also be a “close case,” it is not so close
that an opposite conclusion is apparent.
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¶ 62 Defendant also argues that “predictive information” is required, but we are unaware of, and
defendant fails to point us to, a case stating that predictive information is a mandatory requirement
for anonymous tips. Rather, it seems clear from [CITATION] and [CITATION] that it is but one among
several indicia of reliability. As our supreme court stated in [CITATION], 207 Ill. 2d at 258:
“[D]eficiency or uncertainty in the reliability of the informant can be compensated for by a strong
level of detail and corroboration of the content of the tip, and vice versa.” Accordingly, courts
must weigh a number of factors and the absence or presence of one is not necessarily determinative
of the outcome.
¶ 63 Finally, we agree with defendant’s assertion that 911 calls are not per se reliable, and we
do not believe that [CITATION] or [CITATION] stand for the proposition that they are. Rather, 911 calls
merely have a stronger indicia of reliability as compared to unknown calls made outside the
emergency system because they are not traceable and do not carry the possibility of penalty if
determined to be a false report. See [CITATION], 2021 IL 125954, ¶ 26 (quoting [CITATION] and
explaining why 911 calls have a greater indicator of veracity). But, this is just one indicator of
reliability. In addition, here, the caller identified activity that could reasonably be suspected as
criminal where the person was “flashing a gun”; the description of the person was sufficiently
specific, particularly with the distinctive coloring of the sneakers; the description was corroborated
where the only person to match the description was defendant; and the officers acted upon the
dispatch call and identified the person matching the description in less than two minutes. We
acknowledge that it is not certain whether the 911 caller personally observed the suspicious
activity, but we do not consider this one factor to be determinative in this instance where other
factors weigh in favor of reliability. Thus, under our standard of review here, we cannot say that
the court’s determination that the call was reliable was against the manifest weight of the evidence.
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¶ 64 Defendant also argues that, because the officer initially believed the weapon to be a BB-
gun, the officers could not have had a reasonable belief that defendant had committed a crime and
therefore the officers lacked probable cause to arrest him. However, this argument does not
comport with Illinois courts’ functional application of probable cause, which “does not require a
law enforcement officer to ‘ “know” that certain items are contraband or evidence of a crime.’ ” [CITATION]
¶ 65 “Probable cause is a fluid concept that turns on the assessment of probabilities in particular
factual contexts; it is not readily, or usefully reduced to a neat set of legal rules.” [CITATION] It “
‘does not demand any showing that [a reasonable belief] be correct or more likely true than false.’
” [CITATION] (quoting [CITATION]) At the time of
the arrest, the officers believed that defendant had engaged in criminal activity by exposing a
firearm in public, the officers did not find a FOID card or CCL in defendant’s wallet, defendant
did not inform them that he possessed either, and the officers were not certain as to what type of
firearm had been recovered. These facts and circumstances, considered as a whole, are sufficient
to justify a belief that defendant had committed a crime. See [CITATION]
¶ 25; see also [CITATION], ¶ 30 (“[T]he existence of a possible
innocent explanation *** did not necessarily negate probable cause.”). Thus, the officers had
probable cause to effectuate an arrest. See [CITATION] (probable
cause rests on “commonsense considerations, and the calculation concerns the probability of
criminal activity, rather than proof beyond a reasonable doubt”).
¶ 66 Accordingly, we conclude that the trial court did not err in denying defendant’s motion to
suppress the evidence recovered during the officers’ stop and search of defendant.
¶ 67 C. Constitutional Challenge
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¶ 68 Defendant also argues that his conviction for UPWF violates the second amendment of the
Constitution as applied to him. He offers as support the United States Supreme Court’s decision
in `[CITATION]`. In particular, defendant argues
that the Illinois statute for UPWF is unconstitutional as applied to him because there is “no
historical tradition of prohibiting non-violent persons like [him] from possessing firearms.”
¶ 69 We first address the State’s contention that defendant’s as-applied challenge is forfeited
because it was raised for the first time here on appeal. Generally, the failure to raise an issue in the
trial court results in forfeiture of the issue in the reviewing court. `[CITATION]`. Facial constitutional challenges may be raised at any time; however, as-
applied constitutional challenges cannot. See `[CITATION]`. A
facial challenge alleges that the statute is unconstitutional under any set of facts, but an as-applied
challenge alleges only that the statute violates the constitution as applied to the particular set of
facts and circumstances of the case at bar. Id. ¶ 36. Because as-applied challenges are dependent
on the particular facts of the individual, “it is paramount that the record be sufficiently developed
in terms of those facts and circumstances for purposes of appellate review.” Id. ¶ 37. However,
where “[a]ll facts and circumstances to decide the defendant’s claim *** are already in the
record[,]” the claim may be raised and reviewed on appeal for the first time. `[CITATION]`; see
[SEGMENT 8]
also `[CITATION]`; but see `[CITATION]` (stating that Thompson is “completely inapposite because it concerns the
special rules governing a section 2-1401 petition”).
¶ 70 The State asserts that the record in this case does not contain all the facts and circumstances
necessary to decide defendant’s constitutional challenge. According to the State, defendant’s
- 25 - No. 1-22-1562
second amendment claim turns on whether he is a non-violent felon or was simply carrying the
firearm for his protection; and these issues were not litigated below. We disagree with the State.
The record contains defendant’s criminal history, and it is unclear from the State’s brief precisely
what information it would have presented were this issue litigated below. We therefore consider
the merits of defendant’s as-applied challenge on appeal. See [CITATION].
¶ 71 That said, as we explain below, we find that defendant’s as-applied constitutional challenge
fails.
¶ 72 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. Here, the statute under which defendant was convicted provides that it is a felony to
“knowingly possess on or about [one’s] person or on [one’s] land or in [one’s] own abode or fixed
place of business any *** firearm *** if the person has been convicted of a felony under the laws
of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a). According to defendant, under
Bruen, “Illinois laws criminalizing the possession of firearms by all felons cannot be constitutional
in all applications.” The State responds that “defendant misreads both Bruen and the Second
Amendment as conferring an unqualified entitlement to possess firearms without restriction.”
¶ 73 Prior to Bruen, a two-part test was utilized for evaluating the constitutionality of a firearm
regulation under the second amendment in accordance with [CITATION] and [CITATION]. In Bruen, the Court was
tasked with determining the constitutionality of New York’s firearm licensing regime, which
required applicants to establish that “proper cause” existed for licensure. [CITATION].
- 26 - No. 1-22-1562
The Court ultimately held that the regime was unconstitutional, reasoning that the “proper cause”
requirement allowed the government too much discretion to deny a license to an applicant seeking
to possess a firearm out of a generalized desire for self-defense. [CITATION] at 70. In so concluding, the
Court held that the test used since Heller was “one step too many” and rejected any means-end
analysis in the context of the second amendment. [CITATION] at 19, 24. Instead, the Court insisted upon a
test where the “plain text” and history would be the sole considerations. [CITATION] at 24. At the first step,
an individual’s conduct is presumptively protected by the constitution if the conduct is covered by
the second amendment’s plain text. [CITATION] Second, if the individual’s conduct is covered by the second
amendment, then “the government must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.” [CITATION]
¶ 74 With respect to the Bruen test, defendant asks that this court follow the reasoning of
[CITATION] for the first step of the Bruen test. There, the defendant was
convicted of being an armed habitual criminal and his prior qualifying felony convictions included
manufacture or delivery of narcotics and unlawful possession of a weapon by a felon. [CITATION] ¶¶ 1, 3.
On appeal, the defendant argued that the armed habitual criminal statute violated the second
amendment as applied to him. [CITATION] ¶ 55. As to the first step, the court first determined that the plain
text of the second amendment protects a person’s right to keep and bear arms and thus the
defendant’s possession of a firearm was “ ‘presumptively constitutional.’ ” [CITATION] ¶ 89 (quoting [CITATION] at 17-18). The court noted that, at the first step, the defendant’s status as a felon was
“irrelevant” to the analysis. [CITATION]
¶ 75 As of this writing, only two cases have agreed with [CITATION] reasoning for the first step of
the Bruen test, i.e. that felons are included in the plain text of the second amendment. See [CITATION] (adopting the reasoning of [CITATION] in finding that “the
- 27 - No. 1-22-1562
second amendment’s plain language does not exclude felons”); [CITATION]. Other than Brooks, [CITATION], and [CITATION], the jurisprudence
in this court, in cases involving both facial and as-applied constitutional challenges, is that felons
are excluded from the plain text of the second amendment and thus the Bruen test does not apply.
See [CITATION], ¶ 23 (following the majority of cases in
finding that Bruen does not apply to convicted felons); [CITATION], ¶¶ 20-21 (finding the defendant’s facial constitutional challenge to the armed habitual
criminal statute failed because Bruen does not apply to laws regulating firearm possession by
felons); [CITATION], ¶ 68 (finding that Bruen does not apply to
felons); [CITATION], ¶ 21 (finding the second amendment only
protects law-abiding citizens and therefore Bruen did not apply to the defendant’s facial
constitutional challenge to the UPWF statute); [CITATION],
¶¶ 21-22 (declining to follow Brooks and instead finding that Bruen did not apply to the
defendant’s as-applied constitutional challenge to UPWF statute); [CITATION], ¶¶ 16-17 (declining to follow Brooks and finding that the defendant’s facial
challenge to the UPWF statute failed); [CITATION], ¶ 16 (finding
that Bruen did not indicate an intent to expand the second amendment’s protection to those who
are not law-abiding citizens); [CITATION], ¶ 24 (finding that the
second amendment’s language protects only law-abiding citizens); [CITATION], ¶¶ 152-53 (finding that Bruen did not apply to the defendant’s as-applied
constitutional challenge to the UPWF statute); [CITATION], ¶ 37
(finding the Bruen test only applies to law-abiding citizens, not felons); [CITATION], ¶¶ 37-39 (finding Bruen did not apply to the defendant’s as-applied
- 28 - No. 1-22-1562
constitutional challenge under the second amendment of the unlawful use of a weapon by a felon
statute).
¶ 76 Cases rejecting Brooks first reason that the Bruen Court made clear that its test did not
apply to felons where the Court’s holding was limited to “law-abiding citizens,” a point repeated
in the opinion no fewer than 18 times. See generally [CITATION] (the six justices in the
majority repeated the phrase “law-abiding” 18 times in their majority opinion and concurrences);
see also [CITATION] (collecting federal district court cases finding
that the implication of Bruen is that the second amendment is limited to law-abiding citizens).
Further, in his concurring opinion in Bruen, Justice Kavanaugh quoted [CITATION], stating: “ ‘[N]othing
in our opinion should be taken as to cast doubt on longstanding prohibitions on the possession of
firearms by felons ***.’ ” [CITATION] (Kavanaugh, J., concurring, joined by Roberts,
C.J.) (quoting [CITATION])). This same position was endorsed in Justice Alito’s
concurrence, wherein he stated that Bruen does not “disturb[ ] anything that we said in [CITATION] or
[CITATION] *** about restrictions that may be imposed on the possession of carrying guns.” [CITATION]
(Alito, J., concurring). By this, Justice Alito alludes to a footnote in [CITATION] where the
Court referred to prohibitions on the possession of firearms by felons as “presumptively lawful
regulatory measures[.]” [CITATION]; see also [CITATION]
(reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)). Finally,
we point out that the Supreme Court’s recent decision in [CITATION], confirmed once
again that “prohibitions *** on the possession of firearms by ‘felons and the mentally ill’ are
‘presumptively lawful.’ ” [CITATION] (quoting [CITATION]). Based on the foregoing, we find that [CITATION] does not apply to defendant, as
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he is a convicted felon and not a law-abiding citizen. See [CITATION]
(“Bruen just does not apply” to those who are not law-abiding).
¶ 77 Further, any attempts by the defendants in recent cases to cast the language in Heller and
[SEGMENT 9]
Bruen as nonprecedential dicta—which defendant also argues in this case—have been found
unpersuasive. See [CITATION]. Either
the language has not been considered dicta pursuant to the Eleventh Circuit Court of Appeals’
decision in United States v. Rozier, 598 F.3d 768, 770-71 n.6 (11th Cir. 2010), which rejected such
a proposition as to Heller’s text, or it is considered judicial dicta from the Supreme Court and
should be afforded considerable weight in the lower courts, pursuant to [CITATION]. We agree
that the language in the foregoing Supreme Court cases should be followed because “[e]ven obiter
dictum of a court of last resort can be tantamount to a decision and therefore binding in the absence
of a contrary decision of that court.” [CITATION]; see also [CITATION] (stating it will heed the Supreme Court’s statement regarding firearms
prohibitions for felons even if dicta). Accordingly, as we concluded in our recent decision in
[CITATION], “[w]e presume that the Supreme Court’s inclusion of ‘law-abiding’ in the holding is not
superfluous or irrelevant, especially given the Court’s repeated use of the phrase throughout the
Bruen opinion, as well as its prior decisions.” [CITATION]; see also [CITATION] (“[T]he Court’s language in Bruen supports the validity
of its dictum in Heller.”).
¶ 78 Even were we to find that the Bruen test applies to felons like defendant, we would
nonetheless find that defendant’s as-applied constitutional challenge to the UPWF statute fails at
- 30 - No. 1-22-1562
the second step. Defendant argues that there is no historical basis for prohibiting a person like him
from exercising his second amendment right based on a prior non-violent drug conviction.
However, thus far, no case from this court has concluded that prohibition on firearms possession
for felons is unconstitutional as applied to nonviolent felons, and defendant has failed to convince
us to be the first. As we explain below, we conclude that the UPWF statute passes constitutional
muster as applied to defendant.
¶ 79 In [CITATION] and [CITATION], the Second District rejected this same argument for two reasons. First,
the court in both cases pointed out that the Supreme Court did not place any qualifiers on the term
“felons” or make any distinction between violent and non-violent felons in either [CITATION] or
[CITATION], ¶ 27;
see also [CITATION] (observing that “[f]elonies
encompass a wide variety of non-violent offenses, and we see no reason to think that the [United
States Supreme Court] meant ‘dangerous individuals’ when it used the word felon” in [CITATION]).
Second, the court in both cases agreed with the [CITATION] court’s conclusion that there was a
sufficient historical tradition to support our legislature’s prohibition of firearm possession by
convicted felons. [CITATION], ¶ 27.
¶ 80 Turning to [CITATION], we note that defendant disagrees with the [CITATION] court’s conclusion as
to the historical analysis and argues that the court failed to cite “any law from around the time the
Second Amendment was adopted that permanently disqualified felons from possessing
firearms[.]” We reject defendant’s invitation to depart from [CITATION] as to the second step of the
Bruen test.
- 31 - No. 1-22-1562
¶ 81 At the second step, the court reviewed the historical record of restrictions for possession of
firearms. [CITATION]. 3 The court then concluded that “such
categorical restrictions [were] inextricably linked to the notion of ‘law abiding citizens.’ ” [CITATION].
In particular, the court found that there was “widespread acceptance of the legislatures’ authority
to disarm felons” during the founders’ era and the “majority of legal historians” agreed that the
right to bear arms “turned on one’s law-abiding character.” [CITATION]. Additionally, the court
specifically addressed the minority view “that traditionally regulation of firearms possession was
an effort to address a risk of dangerousness *** such that it would not apply to the defendant as a
nonviolent felon[.]” [CITATION]. The court found that there was no historical requirement that an
individual be deemed dangerous before prohibiting his or her from possessing a firearm and the
more recent legislative history supported the same conclusion. [CITATION]. Ultimately, the
court held that the armed habitual criminal statute was “consistent with the national historical
tradition of firearm regulation” and, therefore, was constitutional as applied to the defendant. [CITATION].
¶ 82 We do not find defendant’s argument that the court failed to cite “any law from around the
time the Second Amendment was adopted that permanently disqualified felons from possessing
firearms” persuasive. The Supreme Court in [CITATION] reiterated that the legislative precursors to a
challenged regulation need not be a “ ‘dead ringer’ ”; rather, they must only be considered “
‘analogous enough to pass constitutional muster.’ ” [CITATION] (quoting [CITATION]).
Moreover, the [CITATION] Court explained that its recent second
The court also reviewed Supreme Court precedent on the prohibition of firearm possession for
felons, particularly the Supreme Court’s reliance on the phrase “law-abiding citizens.” [CITATION]. This is the
same precedent discussed and relied upon for the first step of the [CITATION]; however, the [CITATION] court
utilizes that same rationale only in the second step. See infra ¶¶ 76-79.
- 32 - No. 1-22-1562
amendment precedents “were not meant to suggest a law trapped in amber” and the second
amendment “permits more than just those regulations identical to ones that could be found in
1791.” Id. at ___, 144 S. Ct. at 1897-98. In accordance with the Supreme Court’s requirements,
the Brooks court aptly traced the historical roots of prohibitions on firearm possession for felons
back to the Founding Era and found sufficient support for firearms restrictions for felons, such as
the armed habitual criminal statute at issue there and the UPWF statute before us.
¶ 83 Accordingly, of our own volition, we find no reason to depart from the well-reasoned
decisions set forth above, and defendant has not convinced us that there is any reason to do so.
Thus, we conclude that the UPWF statute satisfies the second step under Bruen. Specifically, we
agree that, historically, legislatures have categorically banned individuals from possession of
firearms based on lawfulness, a felon’s dangerousness has not been a consideration in prohibiting
the felon from possessing a firearm, and the Supreme Court has also made no such distinction in
implicitly approving bans on firearms possession for felons. As such, defendant’s nonviolent
criminal history does not affect the constitutionality of the UPWF statute and thus the statute is
constitutional as applied to defendant. See also [CITATION]
(following Brooks in concluding that the UPWF statute was constitutional as applied to the
defendant).
¶ 84 III. CONCLUSION
¶ 85 For the reasons stated, we affirm the judgment of the circuit court.
¶ 86 Affirmed.
- 33 -
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 230377-U
Order filed September 20, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-23-0377
v. ) Circuit No. 22-CF-492
)
TERENCE L. MILLER, ) Honorable
) Howard C. Ryan Jr.,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices Holdridge and Albrecht concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: (1) The evidence was sufficient to prove defendant knowingly possessed firearms.
(2) The statute under which defendant was convicted is facially constitutional.
(3) The statute is constitutional as applied to defendant. (4) The statute does not
violate the Illinois Constitution either facially or as applied.
¶2 Defendant, Terence L. Miller, appeals his unlawful use of a weapon by a felon (UUWF)
convictions, arguing: (1) the State’s evidence failed to prove beyond a reasonable doubt that he
knowingly possessed the firearms found inside the vehicle he was driving, and (2) the UUWF statute criminalizing the possession of weapons by felons is unconstitutional both facially and as
applied to him. We affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged by indictment with four counts of UUWF (720 ILCS 5/24-1.1(a)
[SEGMENT 10]
(West 2022)). On April 3, 2023, the case proceeded to a bench trial. At trial, former La Salle
County Sheriff’s Deputy Jaydyn Hawley testified that on December 9, 2022, at approximately 9:54
p.m., he conducted a traffic stop on a vehicle for failure to make a complete stop at a stop sign.
Defendant was the driver and sole occupant of the vehicle. Hawley observed cannabis in the cup
holder of the center console and asked defendant to exit the vehicle. After a police canine alerted
to the presence of narcotics, Hawley detained defendant and searched the vehicle. While standing
outside the vehicle, Hawley looked into the backseat through the open driver’s side rear door and
observed a Westend leather bag “sitting up against the back of the center console where usually
the cup holders or the rear vents for the second row is.” The Westend bag was positioned between
two plastic shopping bags. One shopping bag contained feminine hygiene products and the other
contained hair gel and a lighter lanyard. Hawley testified that the top of the leather bag was
unzipped, and he was able to see the handle of a firearm inside the bag. Hawley searched the bag
and found two 9-millimeter handguns, one was loaded, and a magazine containing seven rounds
of ammunition. Hawley stated the firearms were easily within reach of defendant while seated in
the driver’s seat of the vehicle.
¶5 On cross-examination, Hawley confirmed he had been alerted by another officer during the
vehicle search that a Black male was “lurking around.” When Hawley approached the individual
to speak with him, he disappeared around the corner. Hawley further testified that defendant’s
girlfriend, Kimberly Teasley, was the registered owner of the vehicle. The handguns found inside
the vehicle were not tested for fingerprints and were not registered to defendant.
¶6 In addition to Hawley’s testimony, the State introduced a video recording of the traffic stop
taken from the dashboard camera in the squad car. In the video, defendant told Hawley he was on
parole and asked repeatedly for his phone to call his lawyer. When Hawley informed defendant he
would be conducting a search of the vehicle, defendant argued that he could not perform a search
because the vehicle belonged to his girlfriend.
¶7 After the court denied defendant’s motion for a directed verdict, Teasley testified that the
Westend bag found in her vehicle belonged to defendant’s brother, Tevin Miller. Teasley stated
that on the day in question, defendant went shopping with Tevin in Rockford. Defendant called
Teasley after he was pulled over by Hawley. Using a cell phone tracking application, Teasley was
able to determine defendant’s location and shared that information with Tevin. On cross-
examination, Teasley admitted that the written statement Tevin had provided to defense counsel
was written by her because Tevin had bad handwriting.
¶8 Prior to his testimony, Tevin confirmed he was the defendant in a pending criminal case
and the court admonished him about his fifth amendment right against self-incrimination. Tevin
testified that he owned the handguns but had no receipts or paperwork because he had purchased
them “off the street.” Tevin stated he had placed the guns in the vehicle when defendant picked
him up to take him shopping for clothes in Aurora. Tevin did not tell defendant about the guns
because he knew defendant “wouldn’t want one” and he did not want to “put [defendant] in a
predicament” because defendant could not possess firearms. Tevin stated that he left the guns in
the vehicle when he returned to his home in La Salle because he did not want them around his
three-year-old son. When asked if he had disclosed to defendant at any point that he had left the
guns behind the center console, Tevin stated he had not “[b]ecause I know if I told him, he was
going to play with them or want to fuck with them or *** he would want to mess with them, play
with them, and that’s not something that he could be around.” Tevin testified he believed defendant
was going to return home after dropping him off, and he would not have left the guns in the vehicle
if he knew defendant was going to continue driving.
¶9 On cross-examination, Tevin stated that he kept the bag containing the firearms by the
passenger seat door as he was sitting in the vehicle. Tevin later “hid” the unzipped bag behind the
center counsel when defendant entered a gas station. After, a friend called to tell him defendant
had been pulled over, Tevin went to the scene of the traffic stop but did not speak to the police and
admitted he ran from them.
¶ 10 Tevin explained that he asked Teasley to write his statement because he was at work and
his hand was oily. When asked why his written statement indicated he went shopping in Rockford,
Tevin stated he and defendant travelled through Rockford on their way to Aurora. When asked
why he claimed in his written statement that Teasley had informed him about the traffic stop, Tevin
testified he had received a call from Teasley after he was notified by his friend that defendant had
been pulled over.
¶ 11 Tevin initially testified that he owned a Nike, a Tommy Hilfiger, and an Everlast bag. After
the State presented a photograph of the Westend bag that contained the firearms, Tevin stated he
had a Tommy Hilfiger, a Westend, and a Nike bag. On redirect, Tevin said that he and defendant
first went to Rockford to visit a store and then headed to Aurora to continue shopping.
¶ 12 The court found defendant guilty on all counts, noting he was the sole occupant of the
vehicle and was seated in close proximity to the guns. The court reasoned that the immediate
visibility of the handle of the gun in the unzipped bag, the bag’s position between the two shopping
bags containing personal items presumably purchased by defendant while running errands, and the
vehicle being owned by Teasley demonstrated defendant had knowledge of the guns. The court
indicated it did not find Tevin to be a credible witness.
¶ 13 Defendant’s presentence investigation report (PSI) showed prior felony convictions for
numerous offenses including residential burglary, home invasion, battery, domestic battery, and
aggravated battery. At sentencing, two of the four counts merged, and the court imposed two
concurrent terms of six years’ imprisonment on the remaining counts. Defendant appeals.
¶ 14 II. ANALYSIS
¶ 15 A. Sufficiency of the Evidence
¶ 16 On appeal, defendant first argues the evidence presented at trial was insufficient to prove
he knowingly possessed the two handguns found inside the vehicle. Challenges to the sufficiency
of the evidence require the reviewing court to determine, after viewing the evidence and all
reasonable inferences therefrom in the light most favorable to the prosecution, whether any rational
trier of fact could have found the essential elements of the offense were proven beyond a
reasonable doubt. [CITATION], ¶ 23. It is not the function of this
court to retry the defendant and our judgment will not replace that of the trier of fact on issues
involving the weight of the evidence or the credibility of witnesses. [CITATION], ¶ 28. A criminal conviction will not be reversed absent evidence so unreasonable or
improbable as to justify a reasonable doubt of defendant’s guilt. Id.
¶ 17 For defendant to be found guilty of UUWF, the State was required to prove he knowingly
possessed a firearm and had a prior felony conviction. See 720 ILCS 5/24-1.1(a) (West 2022);
[CITATION]. Defendant does not dispute he was previously
convicted of a felony. Rather, defendant contends the evidence failed to demonstrate he knowingly
possessed a firearm under the State’s theory of constructive possession. To establish constructive
possession, the State needed to show defendant: (1) had immediate and exclusive control over the
area where the weapon was found, and (2) had knowledge of the presence of the weapon. See id.
at 899-900.
¶ 18 Knowledge may be proven by circumstantial evidence. [CITATION],
¶ 25. While a defendant’s mere presence in the same vehicle where a weapon is found cannot alone
establish knowledge, defendant’s proximity to the weapon can be considered when determining
constructive possession. Id. Additional factors from which knowledge can be inferred include: “(1)
the visibility of the weapon from defendant’s location in the vehicle, (2) the amount of time in
which defendant had an opportunity to observe the weapon, (3) gestures or movements made by
defendant that would suggest an effort to retrieve or conceal the weapon, and (4) the size of the
weapon.” [CITATION].
¶ 19 Here, defendant’s immediate and exclusive control over the location where the weapons
were found as the sole occupant of the vehicle “gives rise to an inference that he possessed the
weapons.” See [CITATION], ¶ 32. Based on Hawley’s testimony,
the guns were readily accessible to defendant, as the Westend bag was within reach of the driver’s
seat. Although the guns were positioned behind the driver’s seat, one was partially visible from
inside the Westend bag when looking into the back seat of the vehicle. The shopping bags
positioned on either side of the Westend bag likely belonged to defendant, as the bags contained
[SEGMENT 11]
personal items other than clothing and remained in the car after Tevin went home. Considering the
length of time defendant spent in the car travelling to several different cities to shop and run
errands, coupled with the placement of the shopping bags, a reasonable inference can be made that
defendant had an opportunity to see the guns inside the unzipped bag. The record does not indicate
defendant made any discernible gestures or movements to retrieve or conceal the guns; however,
he did attempt to prevent a search of the vehicle by claiming the police could not lawfully search
it because the vehicle belonged to Teasley. Additionally, the court’s finding that Tevin was
incredible as a witness was not unreasonable based on the inconsistencies in his testimony. See
[CITATION] (criminal possession issue turns on the
factfinder’s determination as to the credibility of the witnesses and the weight given to their
testimony). Therefore, the evidence presented at trial is sufficient to conclude defendant had
constructive possession of the weapons found in the vehicle.
¶ 20 In coming to this conclusion, we reject defendant’s argument that the evidence presented
was “ambiguous” as to the location of the bag. Hawley testified that the bag was “sitting up against
the back of the center console where usually the cup holders or the rear vents for the second row
is.” He indicated that they were readily accessible to defendant from where he sat in the driver’s
seat. This painted a sufficient picture for the trier of fact without any photographs. Moreover, we
reject defendant’s discussion of photographs of a similar SUV that were not included in the trial
court record.
¶ 21 B. Constitutionality of UUWF Statute
¶ 22 Next, defendant contends that the UUWF statute is unconstitutional both facially and as
applied to him in light of the United States Supreme Court’s recent decision in [CITATION]. Defendant argues that [CITATION] requires
the State to affirmatively prove the UUWF statute “is part of the historical tradition that delimits
the outer bounds of the right to keep and bear arms” because it restricts the right to bear arms
provided under the second amendment of the United States Constitution (U.S. Const., amend. II).
See Bruen, 597 U.S. at 19. Defendant asserts that the State cannot meet this burden because Illinois
did not criminalize the possession of a firearm by a felon until 1967.
¶ 23 Statutes are presumed to be constitutional and must be construed to uphold their
constitutionality whenever reasonably possible. [CITATION], ¶ 19.
Therefore, the burden of establishing that a statute is constitutionally invalid lies with the
challenging party. [CITATION], ¶ 29. Whether a statute is constitutional is
a matter of law that is reviewed de novo. Id.
¶ 24
. United States Constitution
¶ 25 a. Facial Challenge
¶ 26 A statute is unconstitutional on its face “only if no set of circumstances exists under which
it would be valid.” [CITATION], ¶ 29. Using the historical tradition
framework set forth by the Supreme Court in Bruen, we recently upheld the facial constitutionality
of the UUWF statute. [CITATION], ¶ 33. Bruen established a two-
pronged analysis for determining whether a statute regulating firearms is constitutional. Bruen,
U.S. at 26-27. The first prong of the Bruen test requires a determination as to whether
defendant’s conduct falls within the plain text of the second amendment and, if so, the second
prong considers whether there is a justification for the regulation rooted in the nation’s history and
tradition. Id.; [CITATION], ¶ 24. After applying the Bruen test to the UUWF
statute in [CITATION], we concluded that: (1) felons are not excluded from the plain text meaning of
“the people” to whom the second amendment applies, and (2) there is a longstanding history and
tradition of analogous regulations disarming potentially dangerous individuals that date back to
America’s founding era. [CITATION], ¶ ¶ 25, 33. We adopt [CITATION], here, and
hold that that the UUWF statute is facially constitutional under the United States Constitution.
¶ 27 b. As-Applied Challenge
¶ 28 As-applied constitutional challenges generally rely on circumstances and facts specific to
defendant and therefore must first be raised in the circuit court to develop a record sufficient for
appellate review. [CITATION], ¶ 39. As a threshold matter, defendant
acknowledges he did not assert his constitutional claims prior to this appeal. The State argues that
defendant’s failure to raise his as-applied challenge amounts to forfeiture, as the record is
insufficiently developed for review because there is no indication as to whether defendant’s prior
felony convictions involved the use of a firearm. We disagree. Though the specific facts underlying
much of defendant’s criminal history may be unknown, defendant’s undisputed criminal history is
otherwise contained in the record.
¶ 29 Defendant’s as-applied challenge is difficult to discern from his facial challenge, which it
largely mirrors. Defendant does not present any particular facts that demonstrate how the UUWF
statute violates his constitutional second amendment right to bear arms as applied to him, except
to observe that the instant charged offense of UUWF did not in itself involve the use of violence.
This observation, however, ignores the relevance of defendant’s criminal history, which includes
unrelated felony convictions for residential burglary, aggravated battery and home invasion. This
felony history renders defendant “precisely the type of person the government has historically and
traditionally sought to disarm.” [CITATION] 1
¶ 30
. Illinois Constitution
During the pendency of this appeal, the U.S. Supreme Court issued a decision in [CITATION],
upholding a federal statute that prohibited certain individuals subject to a
domestic violence restraining order from possessing a firearm. After reviewing [CITATION] and the parties’ related
supplemental briefs, we determine that decision does not change the above analysis.
¶ 31 Defendant further claims that the UUWF statute violates article I, section 22, of the Illinois
Constitution facially and as applied to him. Article I, section 22, provides: “Subject only to the
police power, the right of the individual citizen to keep and bear arms shall not be infringed.” Ill.
Const. 1970, art. I, § 22. In [CITATION], we held the UUWF statute is “a proper exercise of the state’s
police power, which allows the state to exert, through legislation, control over the dangers posed
by firearms and the people who might use them to do harm.” [CITATION],
¶ 43. Accordingly, the UUWF statute is valid under the Illinois Constitution both facially and as
applied to defendant as a convicted felon.
¶ 32 III. CONCLUSION
¶ 33 The judgment of the circuit court of La Salle County is affirmed.
¶ 34 Affirmed.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 230433-U
Order filed September 19, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-23-0433
v. ) Circuit No. 22-CF-1624
)
JUAN J. MORALES, ) Honorable
) Vincent F. Cornelius,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAVENPORT delivered the judgment of the court.
Justices Holdridge and Hettel concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The statute criminalizing the possession of weapons by felons is constitutional on
its face.
¶2 Defendant, Juan J. Morales, appeals his conviction for unlawful possession of a weapon by
a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2022)), arguing the statute governing the offense is
facially unconstitutional. Defendant contends prohibiting felons from possessing firearms under
the UPWF statute infringes on the constitutionally protected right to bear arms and is inconsistent
with this country’s historical tradition of firearm regulation. We disagree and affirm. ¶3 I. BACKGROUND
¶4 After a bench trial, the trial court found defendant guilty of UPWF (id.), two counts of
aggravated unlawful use of a weapon (AUUW) (id. § 24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C)), and
driving while license revoked (625 ILCS 5/6-303 (West 2022)). At sentencing, the court merged
the AUUW counts into the UPWF count. It sentenced defendant to concurrent terms of three years
for UPWF and one year for driving while license revoked. This appeal followed.
¶5 II. ANALYSIS
[SEGMENT 12]
¶6 Defendant contends the UPWF statute (720 ILCS 5/24-1.1(a) (West 2022)) is facially
unconstitutional in light of the United States Supreme Court’s decision in [CITATION].
¶7 We presume statutes are constitutional. [CITATION], ¶ 19.
Whenever reasonably possible, we must interpret statutes to uphold their constitutionality. Id.
Therefore, the challenging party bears the burden of establishing that a statute is constitutionally
invalid. [CITATION], ¶ 29. A statute is only facially unconstitutional “if
no set of circumstances exists under which it would be valid.” [CITATION], ¶ 29. We review de novo whether a statute is constitutional. [CITATION], ¶ 19.
¶8 The second amendment to the United States Constitution provides, “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const., amend. II. This fundamental right has limitations.
[CITATION], 595 (2008). In [CITATION], the Supreme Court established
a two-step analysis for determining the constitutionality of a statute regulating firearms. [CITATION], 26-27. First, courts must determine whether the defendant’s conduct falls within the
second amendment’s plain text. Id.; [CITATION], ¶ 24. Second,
courts must evaluate “whether ‘historical precedent’ from before, during, and even after the
founding evinces a comparable tradition of regulation.” [CITATION]. “Determining whether historical regulations are properly analogous to a modern
firearm regulation requires courts to decide whether the two regulations are ‘relevantly similar.’ ”
Travis, 2024 IL App (3d) 230113, ¶ 24 (quoting [CITATION]). Bruen’s second step
focuses on “ ‘how and why the regulations burden a law-abiding citizen’s right to armed self-
defense.’ ” Id. (quoting [CITATION]).
¶9 The UPWF statute satisfies Bruen’s first step because the possession of a firearm falls
squarely within the second amendment’s plain text. See [CITATION]. We recently reached the same conclusion in Travis. [CITATION], ¶ 25. We also concluded there exists a historical analogue to the UPWF statute.
Id. ¶ 33.
¶ 10 Defendant agrees with Travis to the extent we held “the people” protected by the second
amendment includes those with a felony conviction. However, defendant argues the UPWF statute
has no historical analogue because its permanent ban on firearm possession based on felon status
is inconsistent with precursory dispossession regulations that traditionally permitted lifting status-
based prohibitions under qualifying circumstances.
¶ 11 We reject defendant’s contention for two reasons. First, the UPWF statute is not an absolute
permanent ban because it contains an express exception for those who have obtained relief under
section 10 of the Firearm Owners Identification Card Act (430 ILCS 65/10 (West 2022)). See 720
ILCS 5/24-1.1(a) (West 2022). Second, [CITATION] does not require the UPWF statute to be identical
or operate exactly as its predecessors. See [CITATION]. Our historical analysis in [CITATION]
====== End of Document ====== revealed that modern statutes criminalizing the possession of firearms by felons evolved from
preexisting, founding-era regulations that disarmed criminals and other dangerous persons. [CITATION]. The UPWF statute is consistent with this country’s history of
restricting individuals that have committed crimes from exercising the right to bear arms and
imposes virtually no burden on the right for law-abiding citizens. [CITATION]. We adhere to [CITATION]
and find the UPWF statute facially constitutional. 1
¶ 12 In reaching our conclusion, we reject defendant’s contention that our decision in [CITATION] is
distinguishable because it addresses the offense of unlawful use of a weapon by a felon (UUWF),
not UPWF. We disagree. The full title of the statute is “Unlawful use or possession of weapons by
felons or persons in the custody of the Department of Corrections facilities.” 720 ILCS 5/24-1.1
(West 2022). Whether the offense is labeled UUWF or UPWF is a distinction without a difference.
There is only one offense under the statute. [CITATION].
¶ 13 III. CONCLUSION
¶ 14 For the reasons stated, we affirm the judgment of the circuit court of Will County.
¶ 15 Affirmed.
We note that during the pendency of this appeal, the U.S. Supreme Court issued a decision in
[CITATION], in which it upheld a federal statute that prohibited individuals subject to a domestic violence restraining order from possessing a firearm. After
reviewing [CITATION] and the parties’ related supplemental briefs, we find that decision does not change the
above analysis.
2024 IL App (1st) 230606-U
FIFTH DIVISION
September 13, 2024
No. 1-23-0606
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 CR 7288
)
MONTRICE AVERY, ) Honorable
) Steven G. Watkins,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court.
Justices Mitchell and Navarro concurred in the judgment.
ORDER
¶1 Held: The trial court judgment is affirmed where (1) defendant’s as-applied constitutional
challenge is forfeited, and (2) the unlawful use or possession of a weapon by a felon
statute is not unconstitutional on its face.
¶2 Following a jury trial, defendant Montrice Avery was found guilty of unlawful use or
possession of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2020)) and sentenced to
two years in prison. On appeal, Mr. Avery argues that his conviction is unconstitutional both
facially and as applied to him under [CITATION]. We affirm. No. 1-23-0606
¶3 I. BACKGROUND
¶4 Mr. Avery was charged by information with multiple offenses arising from his possession
of a firearm on July 7, 2020. The State proceeded on one count of UUWF premised upon Mr.
Avery having been previously convicted of felony escape in 2012.
¶5 At trial, Chicago police officer Michael Mendez testified that on July 7, 2020, he and his
partner, Officer Edgar Escobar, responded to a call regarding “a person with a gun” near Central
Avenue and West End Avenue in Chicago. When they arrived in the area in a marked squad
vehicle, Officer Mendez saw Mr. Avery, whom he identified in court, walking northbound on
Central Avenue. Mr. Avery “was manipulating” zippers on a bag on his chest. Officer Mendez
ordered Mr. Avery to “keep his hands up,” but Mr. Avery fled. Officers Mendez and Escobar
pursued on foot and eventually, Officer Escobar “secure[d]” Mr. Avery.
¶6 The State introduced Officer Mendez’s body camera footage, which is in the record on
appeal and has been viewed by this court. In the footage, Officer Mendez chases Mr. Avery into a
gangway. As Mr. Avery enters the gangway, a black handgun falls to the ground from his person.
¶7 Officer Escobar testified consistently with Officer Mendez regarding their encounter with
Mr. Avery. The State introduced Officer Escobar’s body camera footage, which depicted the same
events.
¶8 Officer Gonzalez testified that he followed Officers Mendez and Escobar and saw a black
handgun drop from “in front of” Mr. Avery. Officer Gonzalez recovered the firearm, which was
loaded with a live round chambered.
¶9 The State entered a stipulation that Mr. Avery had a prior felony conviction. The State
informed the judge that the conviction involved a 2012 escape from electronic monitoring, but the
specific felony was not communicated to the jury.
No. 1-23-0606
¶ 10 The jury found Mr. Avery guilty of UUWF. The court denied Mr. Avery’s motion and
amended motion for a new trial.
¶ 11 Mr. Avery’s presentence investigative report (PSI) listed nine prior convictions from 1998
through 2017, including seven convictions for possession of cannabis or other controlled
substances, one for obstructing identification, and the stipulated escape from electronic
monitoring. After a hearing, the court sentenced Mr. Avery to two years in prison.
¶ 12 II. JURISDICTION
[SEGMENT 13]
¶ 13 Mr. Avery was sentenced on February 27, 2023, and timely filed his notice of appeal on
March 28, 2023. We have jurisdiction over this appeal under article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)
and Rule 606 (eff. Mar. 12, 2021), governing appeals from final judgments in criminal cases.
¶ 14 III. ANALYSIS
¶ 15 On appeal, Mr. Avery argues that the UUWF statute is unconstitutional on its face under
the second amendment to the United States Constitution because it does not comply with the
framework established by the United States Supreme Court in Bruen. He also argues that the
UUWF statute is unconstitutional as applied to him because his prior convictions do not establish
that he was the type of “presently-dangerous individual” for whom the framers of the Constitution
permitted disarmament.
¶ 16 Here, Mr. Avery was convicted of UUWF under section 24-1.1(a), which provides that
“[i]t is unlawful for a person to knowingly possess on or about his person *** any firearm *** if
the person has been convicted of a felony.” 720 ILCS 5/24-1.1(a) (West 2020). Relevant here, Mr.
Avery was convicted of felony escape from electronic monitoring in 2012.
¶ 17 The constitutionality of a statute is a matter of law, which we review de novo. [CITATION]
No. 1-23-0606
[CITATION]. In analyzing a challenge to the constitutionality of a statute, “we
begin with the presumption that the statute is constitutional and that, if reasonably possible, this
court must construe the statute so as to affirm its constitutionality and validity.” Id.
¶ 18 A party raising a facial challenge to the constitutionality of a statute “faces a particularly
heavy burden,” because “[a] statute will be deemed facially unconstitutional only if there is no set
of circumstances under which the statute would be valid.” [CITATION],
¶ 10. Therefore, a facial challenge fails if any situation exists where the statute could be validly
applied. [CITATION], ¶ 25. In contrast, an as-applied challenge “requires a
showing that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” [CITATION], ¶ 36.
¶ 19 The second amendment provides: “A well regulated Milita, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION] (2008), holding that the second amendment elevated “the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” [CITATION] at 635.
The second amendment applies to the States through the fourteenth amendment of the United
States Constitution. [CITATION] (2010).
¶ 20 Under [CITATION] and [CITATION], courts developed a two-step test to assess second amendment
challenges to firearm regulations. See [CITATION], ¶ 11. First, the
government could justify the regulation by establishing whether the regulated activity fell outside
the scope of the second amendment as it was originally understood. Id. If the conduct fell beyond
the second amendment’s original scope, it was “categorically unprotected.” Id. Otherwise, the
court would progress to the second step and conduct a “means-end analysis” where the court
No. 1-23-0606
weighed the severity of the regulation against the ends the government sought to achieve in
enacting the regulation. Id.
¶ 21 In Bruen, the United States Supreme Court announced a new analytical framework for
evaluating the constitutionality of firearm regulations under the second amendment. [CITATION],
¶ 68 (citing Bruen, 597 U.S. at 17). Under Bruen, a court must
first determine whether “the Second Amendment’s plain text covers an individual’s conduct.”
Bruen, 597 U.S. at 24; [CITATION], ¶ 69. If it does, then the Constitution
“presumptively protects that conduct” and the government must justify the regulation by showing
that it is consistent with the nation’s historical tradition of firearm regulation. Bruen, 597 U.S. at
24; [CITATION], ¶ 69. To make this showing, the government must point to
historical precedent which establishes what the founders understood the second amendment to
mean. Bruen, 597 U.S. at 24-25; [CITATION], ¶ 70.
¶ 22 As an initial matter, the State argues that Mr. Avery forfeited his as-applied constitutional
challenge because he raises it for the first time on direct appeal. See [CITATION], ¶ 32, overruled on other grounds by [CITATION]) (“[A] defendant
must present an as-applied constitutional challenge to the trial court in order to create a sufficiently
developed record.”).
¶ 23 We agree with the State, as the record is not sufficiently developed for us to review Mr.
Avery’s as-applied constitutional challenge. “[A]s-applied constitutional challenges are dependent
on the specific facts and circumstances of the challenging party and, therefore, it is paramount that
the record be sufficiently developed in terms of those facts and circumstances for purposes of
appellate review.” (Internal quotation marks omitted.) [CITATION], ¶ 27.
Here, Mr. Avery premises his as-applied challenge on the contention that the founders permitted
No. 1-23-0606
disarmament only for persons who were presently dangerous, not for persons who were mere
felons. He argues his prior convictions do not establish he is the type of presently dangerous
individual for whom the framers intended disarmament.
¶ 24 However, at trial, Mr. Avery stipulated to his felon status, so the trial court made no factual
findings regarding his other prior convictions and how they related to his present as-applied claim.
As such, Mr. Avery’s as-applied constitutional challenge is premature. See id. ¶ 31 ([CITATION], “we find [the] defendant’s as-applied constitutional challenge
premature.”); see also Ill. S. Ct. R.
23(e)(1) (eff. Feb. 1, 2021) (unpublished orders entered on or after January 1, 2021, may be cited
for persuasive purposes).
¶ 25 Regarding Mr. Avery’s facial challenge, he has not established that the UUWF statute
could not be validly applied to any defendant. This court has interpreted Bruen in the context of
UUWF and has determined that Bruen does not apply to felons, because the holding was limited
to laws affecting “law-abiding citizens.” See [CITATION]); see also
[CITATION], ¶¶ 27-29 (same). As the UUWF statute could be
validly applied to the defendants in [CITATION], Mr. Avery’s facial challenge to the statute
must also fail. See [CITATION]);
see also [CITATION]).
No. 1-23-0606
challenge to the UUWF statute using the reasoning in Baker).
¶ 26 Mr. Avery requests we depart from our holdings in Baker and Mobley, and instead follow
the reasoning in [CITATION], ¶ 89, where we found that a
defendant’s status as a felon is irrelevant under the first step of the Bruen analysis and “is more
properly evaluated under the second step’s historical tradition analysis.” But even if we did follow
[CITATION], sufficient historical precedent exists to ban felons from possessing firearms. See [CITATION], ¶¶ 27-33 (finding that the UUWF statute was “consistent with
this nation’s history of preventing potentially dangerous individuals from exercising the right to
bear arms,” and so was facially constitutional).
¶ 27 After this appeal was fully briefed, we granted Mr. Avery’s motion for leave to cite [CITATION],
as additional authority. The Supreme Court
in [CITATION] held that a federal statute prohibiting individuals subject to domestic violence restraining
orders from possessing firearms was constitutional on its face because “the Second Amendment
permits the disarmament of individuals who pose a credible threat to the physical safety of others.”
[CITATION] The court in [CITATION] rejected the government’s interpretation
that the defendant may be disarmed simply because he was not “responsible.” [CITATION]
¶ 28 Mr. Avery contends that [CITATION] supports his contention that the UUWF statute was
unconstitutional because its ban on firearm possession based on felon status, irrespective of
contemporary dangerousness, is inconsistent with the second amendment regulatory tradition. He
also contends that the nine Supreme Court justices rejected the argument that the second
amendment applied only to “law-abiding, responsible” citizens, and this court therefore should
reject the State’s argument that the second amendment permits restrictions aimed at citizens who
No. 1-23-0606
are not “ ‘law-abiding and responsible,’ ” or who are not “ ‘virtuous.’ ”
¶ 29 Notwithstanding Mr. Avery’s assertion to the contrary, Rahimi did not reject the view that
[SEGMENT 14]
the second amendment applies only to “law-abiding, responsible” citizens as Mr. Avery contends.
It merely rejected the government’s contention that a defendant may be disarmed simply because
he was not “responsible,” finding the word vague, and made no mention of the phrase “law-
abiding” whatsoever. The only mention of “law-abiding” is in the Rahimi dissent, which uses the
term in the context of setting forth the government’s argument—“that the Court already held the
Second Amendment protects only ‘law-abiding, responsible citizens,’ ”—which the dissent found
specious. See [CITATION].
¶ 30 Mr. Avery here was not merely “irresponsible,” but had been previously convicted of a
felony, and the Rahimi court confirmed that prohibitions on the possession of firearms by felons
were “presumptively lawful.” [CITATION]. “[W]e do not suggest that the Second
Amendment prohibits the enactment of laws banning the possession of guns by categories of
persons thought by a legislature to present a special danger of misuse.” [CITATION]. Accordingly, Rahimi supports our conclusion that the UUWF statute is constitutional on its
face.
¶ 31 IV. CONCLUSION
¶ 32 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 33 Affirmed.
2024 IL App (2d) 230305-U
No. 2-23-0305
Order filed September 11, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-2125
)
JIMMY M. MARTINEZ, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE KENNEDY delivered the judgment of the court.
Justices Hutchinson and Birkett concurred in the judgment.
ORDER
¶1 Held: Defendant’s second-amendment challenge to the statute criminalizing a felon’s
possession of a firearm fails because (1) the amendment’s protection is reserved for
law-abiding citizens and (2) even if felons fall within the letter of the second
amendment, the challenged statute is valid because it is consistent with our Nation’s
history of firearms regulation, in which there is precedent for disarming groups
deemed potentially dangerous.
¶2 Defendant, Jimmy Martinez, appeals from his convictions of unlawful use or possession of
a weapon by a felon (UUPWF) (720 ILCS 5/24-1.1 (West 2018)). He contends that, under [CITATION], the UUPWF statute on its face 2024 IL App (2d) 230305-U
violates the second amendment to the United States Constitution (U.S. Const., amend II) and, thus,
his convictions must be reversed. We affirm.
¶3 I. BACKGROUND
¶4 On January 9, 2019, defendant was indicted on four felony charges, stemming from an
October 26, 2018, search of his Elgin home pursuant to a search warrant. Count I alleged that
defendant unlawfully possessed with the intent to deliver 15 grams or more but less than 100 grams
of a substance containing cocaine (720 ILCS 570/401(a)(2)(A) (West 2018)). Count II alleged that
defendant unlawfully possessed 15 grams or more but less than 100 grams of a substance
containing cocaine (id. § 402(a)(2)(A)). Count III charged UUPWF and alleged that defendant
knowingly possessed a firearm, “a Ruger 9mm pistol,” after having been previously convicted of
a felony, aggravated unlawful use of a weapon (in Cook County case No. [CITATION]). Count
IV also charged UUPWF (id.) and alleged that defendant knowingly possessed a firearm, “a Ruger
9mm pistol,” after having been previously convicted of a felony, unlawful possession of a
controlled substance (in McHenry County case No. [CITATION]).
¶5 On December 18, 2020, defendant filed a “Motion to Quash Search Warrant and Suppress
Evidence Illegally Seized,” arguing that the search warrant lacked probable cause. The State filed
a response on April 1, 2021. On February 10, 2022, the trial court denied the motion. Defendant’s
subsequent motion for reconsideration was denied on May 20, 2022.
¶6 On June 1, 2023, the matter proceeded to a stipulated bench trial. The evidence consisted
of two documents, each titled “Joint Stipulation of the Parties,” and various items admitted as
People’s exhibits Nos. 1 through 29. 1
There was no People’s exhibit No. 4. The two stipulations were admitted as People’s
2024 IL App (2d) 230305-U
¶7 The stipulated evidence generally established the following. On October 26, 2018, officers
from the Illinois State Police Swat Team and the North Central Narcotics Task Force (Task Force)
executed a search warrant for defendant’s person and an Elgin apartment. Defendant was found in
the apartment, given a copy of the search warrant, and read his Miranda warnings (see [CITATION])
by Task Force Master Sergeant Backus. During the search, the
officers recovered (1) a clear plastic bag containing 32.2 grams of cocaine (People’s exhibit No. 1),
(2) four clear, knotted plastic bags weighing a combined 2.41 grams and containing suspected
(untested) cocaine (People’s exhibit No. 2), (3) a clear plastic bag weighing 2.31 grams and
containing suspected (untested) cocaine (People’s exhibit No. 3); (4) a Ruger 9-millimeter pistol
(People’s exhibit No. 5), (5) a loaded magazine found inside the Ruger 9-millimeter pistol
(People’s exhibit No. 6), (6) a black Apple iPhone (People’s exhibit No. 7), (7) a digital scale with
white powder residue (People’s exhibit No. 8), (8) an LG flip phone (People’s exhibit No. 9),
(9) 9-millimeter ammunition (People’s exhibit No. 10), (10) vehicle documentation belonging to
defendant (People’s exhibit No. 11), and (11) an insurance letter addressed to defendant (People’s
exhibit No. 12). People’s exhibit Nos. 13-28 were photographs taken at the scene, showing, among
other things, the foregoing items before collection. Also pictured was $1315 in U.S. currency
recovered from a bedroom dresser.
¶8 Edward McGill, a forensic scientist at the Illinois State Police Rockford Crime Laboratory,
would testify that, although People’s exhibit Nos. 2 and 3 were not tested for the presence of a
controlled substance, the contents of each exhibit were consistent in physical appearance with
People’s exhibit No. 1 and, in his opinion, contained cocaine.
exhibit Nos. 30 and 31.
====== 2024 IL App (2d) 230305-U
¶9 Backus would testify that, while escorting defendant to a squad car, defendant stated that
he lived alone at the apartment. Task Force Inspector Neamand would testify that, while
transporting defendant to the police department, defendant told Neamand that he lived alone in the
apartment but that his mother was the leaseholder. Later, Neamand and Task Force Inspector
Young interviewed defendant. Neamand and Young would testify that defendant admitted to
possessing the cocaine and the Ruger pistol but denied “sell[ing] drugs.”
¶ 10 Young, an expert “in the field of cannabis, cocaine, and drug trafficking,” would testify
that, in his opinion, defendant possessed the cocaine with the intent to deliver it. Young’s opinion
was based on (1) the amount of the cocaine, (2) the nature of the packaging, (3) the digital scale,
(4) the two cellular phones, (5) the $1315 in U.S. currency, (6) the loaded firearm, and (7) the
absence of “cocaine user paraphernalia.”
¶ 11 The stipulations further provided that, on October 26, 2018, (1) defendant had a previous
felony conviction of aggravated unlawful use of a weapon (in [CITATION]); (2) defendant had a previous felony conviction of unlawful possession of a controlled
substance (in [CITATION]); (3) defendant did not possess, and was not
eligible to obtain, a valid Firearm Owners Identification (FOID) card; and (4) the firearm
recovered was a “firearm” as defined by section 1.1 of the Firearm Owners Identification Card Act
(FOID Card Act) (430 ILCS 65/1.1 (West 2016)).
[SEGMENT 15]
¶ 12 After the State rested, defendant indicated that he did not wish to present evidence but that
the stipulations should not be considered a waiver of his argument that the search warrant lacked
probable cause.
¶ 13 The trial court found defendant guilty of all counts and set the matter for sentencing.
====== End of Part of a Court Ruling ====== 2024 IL App (2d) 230305-U
¶ 14 On September 11, 2023, defendant filed a motion for a new trial. Defendant argued that
the trial court erred in denying defendant’s motion to quash the search warrant and his subsequent
motion to reconsider.
¶ 15 On September 13, 2023, the trial court denied defendant’s motion for a new trial. Following
a sentencing hearing, the court merged count II into I and count IV into count III. It sentenced
defendant to seven years each on counts I and III, to run concurrently.
¶ 16 This timely appeal followed.
¶ 17 II. ANALYSIS
¶ 18 Defendant contends that, under the analysis recently established by the Supreme Court in
Bruen, the UUPWF statute is facially unconstitutional because it violates a felon’s second
amendment right to keep and bear arms. The State responds that the UUPWF statute is not
unconstitutional under Bruen, because the plain text of the second amendment does not apply to
convicted felons and, even if it did, historical analysis supports a tradition that allows for statutes
dispossessing felons of firearms. We agree with the State.
¶ 19 In considering the issue, we keep the following well-established principles in mind. “A
statute is presumed constitutional, and the party challenging the statute bears the burden of
demonstrating its invalidity.” [CITATION] “A party raising a
facial challenge to a statute faces a particularly heavy burden.” [CITATION] “A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid.” Id. “We have a duty to construe the statute
in a manner that upholds the statute’s validity and constitutionality, if it can reasonably be done.”
[CITATION] The constitutionality of a statute is a question of law,
which we review de novo. [CITATION]
2024 IL App (2d) 230305-U
¶ 20 The UUPWF statute (720 ILCS 5/24-1.1(a) (West 2018)) provides in relevant part:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
-1 of this Act or any firearm or any firearm ammunition if the person has been convicted
of a felony under the laws of this State or any other jurisdiction. This Section shall not
apply if the person has been granted relief by the Director of the Department of State Police
under Section 10 of the [FOID Card Act].[Footnote omitted.]”
The second amendment provides: “A well-regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend II.
¶ 21 We begin with a review of the relevant Supreme Court decisions. In [CITATION], the Supreme Court declared for the first time that the second
amendment right to keep and bear arms is an individual right rather than a collective right. In
[CITATION], the Court struck down a series of District of Columbia laws that banned handgun
possession in the home and required other types of firearms to be kept unloaded and disassembled
or bound by a trigger lock or similar device. Id. at 575, 635. The Court held that the laws violated
the second amendment’s protection of “the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.” (Emphasis added.) Id. The Court noted, however, that “the right
secured by the Second Amendment is not unlimited.” Id. at 626. The Court admonished that
“nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill[.]” Id.
¶ 22 Two years later, in [CITATION], the Court
held that the second amendment’s “right to keep and bear arms for the purpose of self-defense”
2024 IL App (2d) 230305-U
applied to the States through the fourteenth amendment (U.S. Const. amend. XIV). Further, it
struck down laws enacted by the City of Chicago and a Chicago suburb similar to those in Heller.
[CITATION]. In so holding, the Court stated: “We made it clear in Heller that our holding did not cast
doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by
felons and the mentally ill[] ***.’ [CITATION.] We repeat those assurances here.” [CITATION].
¶ 23 In 2022, the Supreme Court decided Bruen. The issue in Bruen was whether “ordinary,
law-abiding citizens have a *** right to carry handguns publicly for their self-defense.” (Emphasis
added.) [CITATION]. The Court held that, “consistent with Heller and McDonald, *** the
Second and Fourteenth Amendments” protect such a right. [CITATION]. Thus, it struck down New
York’s licensing laws that conditioned the issuance of public-carry licenses on a showing of a
special need. [CITATION].
¶ 24 In deciding the issue, the Bruen Court recognized that, following Heller, “the Courts of
Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment
challenges that combines history with means-ends scrutiny.” [CITATION]. At the first step, the
government could justify the firearm restriction by demonstrating that the impacted activity fell
outside the scope of the second amendment as originally understood. [CITATION]. If the government
proved that the regulated activity fell beyond the amendment’s original scope, the court would
uphold the regulation without further analysis. [CITATION]. If, however, it was unclear that the activity was
unprotected, the court would proceed to the second step, in which the court would weigh the
severity of the firearm regulation—the means—against the ends the government sought to achieve.
[CITATION]. The level of scrutiny would depend on how close the regulation came to the core of the second
amendment. [CITATION].
2024 IL App (2d) 230305-U
¶ 25 The Bruen Court “decline[d] to adopt” this framework, noting that “Heller and McDonald
do not support applying a means-end scrutiny in the Second Amendment context.” [CITATION] at 19.
Instead, the Bruen Court set forth the following test for assessing the validity of statutes under the
second amendment:
“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. To justify its regulation, the government
may not simply posit that the regulation promotes an important interest. Rather, the
government must demonstrate that the regulation is consistent with this Nation’s historical
tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s
historical tradition may a court conclude that the individual’s conduct falls outside the
Second Amendment’s ‘unqualified command.’ ” [CITATION] at 24 (quoting [CITATION]).
Thus, under [CITATION], the court must first ask whether the second amendment’s “plain text” covers
an individual’s conduct. [CITATION] If it does, the question becomes whether the challenged statute is
“consistent with this Nation’s historical tradition of firearm regulation.” [CITATION]
¶ 26 After briefing in this case was complete, the Court decided [CITATION], which reaffirmed the Bruen test and emphasized
that “Heller never established a categorical rule that the Constitution prohibits regulations that
forbid firearm possession in the home.” [CITATION] “In fact,” the Court noted, “Heller stated that
many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’
are ‘presumptively lawful.’ ” [CITATION] (quoting [CITATION]). The Court in [CITATION]
rejected a facial challenge to a federal statute (18 U.S.C. § 922(g)(8)) that prohibited firearm
possession by a person subject to a domestic-violence restraining order that protected an intimate
2024 IL App (2d) 230305-U
partner or the partner’s child. Id. *4, 5. The Court held that the statute was not facially invalid
given that one of the bases for prohibiting firearm possession by the subject of the order was that
he or she presented a credible threat to the physical safety of the intimate partner or the partner’s
child. Id. *7 (citing 18 U.S.C § 922(g)(8)(C)(i)). For reasons not apparent, the Court did not apply
the first part of the Bruen test but considered only whether the statute was consistent with the
Nation’s history of firearms regulation. Id. *10. After reviewing historical analogs of the statute,
the Court found that “[o]ur tradition of firearm regulation allows the Government to disarm
individuals who present a credible threat to the physical safety of others.” Id. The Court concluded:
[SEGMENT 16]
“An individual found by a court to pose a credible threat to the physical safety of another may be
temporarily disarmed consistent with the Second Amendment.” Id. *11.
¶ 27 Defendant’s challenge to the UUPWF statute fails at the first step of the Bruen analysis
because, contrary to defendant’s assertion, felons are not included in “the people” to whom the
second amendment refers.
¶ 28 We find instructive [CITATION]. In [CITATION], the defendant argued that the UUPWF statute,
as applied to him, was unconstitutional under the framework announced in Bruen. Id. ¶¶ 33, 37.
The First District concluded that defendant could not mount a second-amendment challenge to the
statute because “Bruen just [did] not apply to him,” given his status as a felon. Id. ¶ 37. The court
explained:
“The Bruen Court could not have been more clear that its newly announced test applied
only to laws that attempted to regulate the gun possession of ‘law-abiding citizens,’ and
not felons like defendant. Bruen, 597 U.S. at [71], 142 S. Ct. at 2156 (the holding was
limited to laws affecting ‘law-abiding citizens’). Just in case a reader missed the first time
2024 IL App (2d) 230305-U
that the court said it, the court repeated it 18 times. [CITATION]
passim (the six justices in the majority repeated the phrase ‘law-abiding’ 18 times in their
majority opinion and their concurrences). Further, Justice Kavanaugh in his concurrence
quoted an earlier case that stated: ‘ “[N]othing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons ***.” ’ [CITATION]
(Kavanaugh, J., concurring, joined by Roberts, C.J.)
(quoting [CITATION]). Justice Kavanaugh’s concurrence
was joined by Chief Justice Roberts, and they both joined the six-justice majority opinion.
Based on the plain, clear, and repeated language of the justices in the majority, defendant
is simply outside the box drawn by [CITATION]
¶ 29 As the State notes, we have recently issued two unpublished decisions that similarly
rejected [CITATION]-based challenges to the UUPWF statute by agreeing with [CITATION] and holding that
felons are not a part of “the people” in the plain text of the amendment. 2 See [CITATION], pet. for leave to appeal pending, No. 130680 (filed May 8,
2024) (“As defendant does not dispute that he is a convicted felon for purposes of the [UUPWF]
statute, he is not a ‘law-abiding’ citizen afforded the same second amendment protections enjoyed
by ‘the people’ referenced in the second amendment.”); [CITATION], pet. for leave to appeal pending, No. 130714 (filed May 23, 2024) (“We *** hold
that ‘the people’ referenced in the second amendment are law-abiding citizens.”). In addition, in
[CITATION], pet. for leave to appeal pending, No. 130343
Orders issued under Illinois Supreme Court Rule 23(b) (eff. Feb. 1, 2023) on or after
January 1, 2021, “may be cited for persuasive purposes.” Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023).
- 10 - 2024 IL App (2d) 230305-U
(filed Jan. 24, 2024), we similarly rejected a second amendment challenge under Bruen to the
armed habitual criminal (AHC) statute (720 ILCS 5/24-1.7 (West 2020)): “[A]s defendant
concedes that he is a repeat convicted felon for purposes of the [AHC] statute, he is not a ‘law-
abiding’ citizen afforded the same second amendment protections enjoyed by ‘the people’
reference in the second amendment.”
¶ 30 We agree with Baker and our previous decisions. As we noted in Echols:
“[T]he clear implication of Bruen is that ‘the people’ referenced in the second amendment
are ‘law-abiding’ citizens. See, e.g., [CITATION], 69 F.4th 495, 504 (8th Cir.
) (‘Congress did not violate [the defendant’s rights] by enacting § 922(g)(1) [(18
U.S.C. § 922(g)(1) (2020) (the federal unlawful-possession-of-a-weapon-by-a-felon
statute)]. He is not a law-abiding citizen, and history supports the authority of Congress to
prohibit possession of firearms by persons who have demonstrated disrespect for legal
norms of society.’); [CITATION], 650 F. Supp. 3d 638, 640 (N.D. Ill. 2023)
(‘Courts in this jurisdiction and elsewhere have relied on the focus in [Bruen, McDonald,
and Heller] on the rights of “law-abiding” citizens to hold that the government may,
consistently with Bruen[,] disqualify convicted felons from exercising the rights the
Second Amendment guarantees.’); [CITATION], 2023 WL 122401, at *2
(N.D. W. Va. 2023) (‘The Supreme Court notes throughout its decisions that the
challenging parties are “law-abiding” citizens. The implication is clear: the reach of Bruen
ends at the feet of those individuals who are not law-abiding citizens.’); [CITATION],
WL 122650, at *2 (N.D. W. Va. 2023) (‘The bottom line is [the
defendant’s] status as a felon removes him from “the people” enumerated in the Second
Amendment.’); [CITATION], 2022 WL 4534605, *1 (N.D. Ill. 2022) (quoting
- 11 - 2024 IL App (2d) 230305-U
Heller, 554 U.S. at 635) (noting that the right secured by the second amendment ‘extends
only to “the people,” which encompasses only “law-abiding, responsible” citizens who
keep or bear arms for “lawful purposes.” ’); [CITATION] (‘By distinguishing non-law-abiding citizens from law-abiding ones,
the [dicta] in Heller and McDonald clarifies the bounds of the plain text of the Second
Amendment. This, coupled with the majority’s focus in Bruen on the Second Amendment
rights of “law-abiding citizens” throughout the opinion convinces this Court that the
Supreme Court would conclude that these statutes fail to infringe on any Second
Amendment rights.’).” [CITATION], ¶ 153.
¶ 31 Further, we note that several published Illinois decisions have similarly concluded that the
second amendment protects the rights of only law-abiding citizens. See [CITATION], ¶ 22 (rejecting the defendant’s facial challenge to the AHC statute, stating that
“Bruen is clear that second amendment rights apply to law-abiding citizens for self-defense”);
[CITATION], ¶ 21 (rejecting the defendant’s constitutional
challenge to the UUPWF statute, holding that “Bruen simply does not apply to [the] defendant.
The second and fourteenth amendments protect the right of ‘law-abiding citizens’ to possess
handguns”); [CITATION], ¶¶ 56, 59, pet. for leave to appeal
pending, No. 130078 (filed May 22, 2024) (rejecting the defendant’s facial challenge to the
aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1)(3)(A-5)(C), (I) (West
2018)), which criminalizes possession of a weapon under certain circumstances without a valid
license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2018)) or a valid
FOID card, noting that “Bruen expressly and repeatedly limits the second amendment’s scope to
law-abiding citizens”); [CITATION], ¶¶ 28, 29, pet. for leave to
- 12 - 2024 IL App (2d) 230305-U
appeal pending, No. 130417 (filed Jan. 31, 2024) (where the record showed that the defendant had
“at least 14 felony convictions, including convictions for violent crimes,” the defendant could not
challenge under Bruen the UUPWF statute as applied to him because “Bruen strongly suggests the
test only applies when a regulation impacts a law-abiding citizen’s ability to keep and bear arms”).
¶ 32 Numerous unpublished Illinois decisions have read the second amendment’s text similarly.
See [CITATION], ¶ 81, pet. for leave to appeal pending, No. 130803
(filed June 21, 2024) (rejecting the defendant’s constitutional challenge to the UUPWF statute,
holding that “Bruen does not apply to [the] defendant, as the second and fourteenth amendments
[SEGMENT 17]
protect the right of ‘law-abiding citizens’ to possess handguns”); [CITATION] ¶ 15, pet. for leave to appeal pending, No. 130678 (filed May 8, 2024) (rejecting
the defendant’s facial and as-applied challenges to the AHC statute because the “defendant’s
previous felony convictions make him not a law-abiding citizen and, therefore, not protected by
the second amendment” (emphases in original)); [CITATION]
(CITATION), ¶ 19, pet. for leave to appeal pending, No. 130369 (filed Jan. 16, 2024) (rejecting the
defendant’s facial constitutional challenge to the UUPWF statute, finding “nothing in [the]
defendant’s arguments to persuade [the court] to believe Bruen does not apply to felons
simpliciter[.]”); [CITATION], ¶¶ 17-24, pet. for leave to
appeal pending, No. 130385 (filed Jan. 22, 2024) (relying on Baker and rejecting the defendant’s
facial and as-applied challenges to the UUPWF statute, holding that his status as a felon removed
him from the first step of the Bruen analysis); [CITATION],
¶ 40, pet. for leave to appeal pending, No. 130398 (filed Jan. 24, 2024) (“In Heller, McDonald,
and Bruen, the Supreme Court made clear that felons are not, and have historically not been,
categorically protected by the second amendment as ‘law-abiding citizens.’ ”); [CITATION]
- 13 - 2024 IL App (2d) 230305-U
[CITATION]
¶ 33 We recognize that one panel of the First District, in considering the constitutionality of the
UUPWF statute, has held that felon status is “irrelevant” at the first stage of the Bruen analysis
and, thus, even a felon’s possession of a firearm is “ ‘presumptively constitutional.’ [Citation.].”
See [CITATION]. One panel of the Third District adopted [CITATION]’ reasoning when
considering facial and as-applied constitutional challenges to the AHC statute and the UUPWF
statute. See [CITATION].
¶ 34 We decline to follow [CITATION]’ reasoning as to the first step of the Bruen analysis. 3 Instead,
we join the great weight of authority in Illinois and agree that the second amendment does not
apply to a felon’s firearm possession.
¶ 35 Even if we presumed that a felon’s firearm possession is covered under the plain text of
the second amendment, defendant’s challenge to the UUPWF statute would fail under Bruen’s
We note that both [CITATION] and [CITATION] upheld the challenged statutes under the second stage
of the Bruen analysis. See [CITATION] (“[W]e conclude that the
legislature’s ability to impose status-based restrictions disqualifying certain categories of people
from possessing firearms is consistent with the national historical tradition of firearm regulation.”);
[CITATION] (“[W]e conclude there is a history and tradition dating
back to the founding era of identifying dangerous individuals and disarming them.”)
- 14 -
====== End of Document ====== 2024 IL App (2d) 230305-U
second step, which asks whether the state can demonstrate that the UUPWF statute “is consistent
with the Nation’s historical tradition of firearm regulation.” [CITATION]. Defendant
contends that there is no historical tradition of firearms regulation that supports a “flat ban” on
firearm possession by convicted felons. We disagree.
¶ 36 Despite our disagreement with [CITATION] conclusion that felons are covered under the plain
text of the second amendment, we nevertheless find particularly instructive [CITATION] analysis on
the issue of whether the UUPWF statute is consistent with the Nation’s historical tradition of
firearm regulation.
¶ 37 In [CITATION], the court considered an as-applied challenge to the AHC statute. [CITATION]. The [CITATION] court summarized as follows the State’s burden under
[CITATION] second step:
“To carry this burden, the government must point to ‘historical precedent from
before, during, and even after the founding [that] evinces a comparable tradition of
regulation.’ [CITATION]. Noting that ‘when it comes to interpreting the Constitution, not all
history is created equal,’ the Court made clear that the relevant inquiry centers on what the
founders understood the second amendment to mean. [CITATION]. In other words, the Court
clarified that in looking to historical context, the most relevant time period is that of the
amendment’s enactment (in 1791). [CITATION]. [Footnote omitted.]
In directing courts to canvass historical periods for context, the Court
acknowledged that the task would not always be ‘straightforward,’ particularly when it
involved ‘unprecedented societal concerns or dramatic technological changes.’ [CITATION.]
Noting that in such circumstances ‘a more nuanced approach’ was necessary, the Court
instructed lower courts to seek out similar regulations and to reason by analogy. [CITATION.]
- 15 - 2024 IL App (2d) 230305-U
As the Court explained, it is not necessary to identify a ‘historical twin’; rather a ‘well-
established and representative [historical] analogue will do.’ (Emphasis in original.)
[CITATION.]
The Court further clarified that ‘analogical reasoning’ under the second amendment
should not be ‘a regulatory straitjacket nor a regulatory blank check.’ [CITATION.] As such,
‘courts should not “uphold every modern law that remotely resembles a historical
analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have
accepted.” ’ [CITATION.] However, ‘even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass constitutional muster.’
[CITATION.] The core question is whether the challenged regulation and the proffered
analogue are ‘relevantly similar.’ [CITATION.]
The Court then clarified two metrics to be used in comparing the government's
proffered analogues against the challenged law, namely: (1) how the challenged law
burdens the right to bear arms; and (2) why the law burdens that right. [CITATION.] In short,
the Court explained that the proper inquiry turns on whether the ‘modern and historical
regulations imposes a comparable burden on the right of armed self-defense, and ***
whether that burden is comparably justified.’ [CITATION.]” Id. ¶¶ 70-73.
¶ 38 The Brooks court engaged in an extensive historical analysis dating back to 17th century
England and ultimately concluded that “there is a historical tradition of legislatures exercising their
discretion to impose status-based restrictions disarming entire categories of persons who, based on
their past conduct, were presumed unwilling to obey the law.” (Internal quotations omitted.) Id.
¶ 97. “While the particular groups varied over time, the founders understood that felons were one
such group.” Id.
- 16 - 2024 IL App (2d) 230305-U
¶ 39 The court began by noting that, in 17th Century England, the government “repeatedly
disarmed individuals whose conduct reflected that they could not be trusted to abide by the
sovereign and [his] dictates.” (Internal quotations omitted.) [CITATION] ¶ 93. Those disarmed included,
first, “non-Anglican Protestants who refused to participate in the Church of England and those
who were dangerous to the Peace of the Kingdom” and, later, “Catholics who refused to renounce
their faith.” (Internal quotations omitted.) [CITATION] The court noted that, later, “[i]n colonial America,
legislatures continued to disarm individuals whose status indicated that they could not be trusted
to obey the law.” [CITATION] ¶ 94. “As such, Native Americans, and other minority groups, like Catholics
in Maryland and Pennsylvania were banned from owning firearms.” [CITATION] The court next noted that,
“during the Revolutionary War, the Continental Congress, Massachusetts, Virginia, Pennsylvania,
Rhode Island, North Carolina, and New Jersey prohibited possession of firearms by people who
refused to swear loyalty oaths.” [CITATION]
¶ 40 The Brooks court further noted that “[f]ounding-era criminal punishments also demonstrate
the widespread acceptance of the legislature’s authority to disarm felons.” [CITATION] ¶ 96. For instance,
even for some nonviolent crimes such as deceit, forgery, and wrongful taking of property, the
punishment included death or forfeiture of a person’s entire estate (which the Brooks court
presumed included firearms). [CITATION] “Even some non-capital offenses triggered the permanent loss of
an offender’s estate, including any firearms.” [CITATION] An example was a 1786 New York statute that
punished individuals who counterfeited state bills of credit with life imprisonment and the
complete forfeiture of their estate (which, again, included firearms). [CITATION] As one court has observed,
[SEGMENT 18]
“if someone was subject to death and forfeiture of their entire estate then such laws would have
also foreclosed individuals from their right to keep and bear arms.” [CITATION] “As a matter of logic and experience, it makes sense
- 17 -
====== End of Part of a Court Ruling ====== 2024 IL App (2d) 230305-U
that these extensive and exhaustive penalties for felonies—outright capital punishment and the
forfeiture of all property—qualify as powerful evidence that mere firearms dispossession of felons
is a ‘comparable burden’ as Bruen frames the standard *** to historical punishments for felonies.”
[CITATION]
¶ 41 While Brooks’ historical survey uncovered no law that specifically prohibited felons from
owning firearms, Brooks did cite laws that were persuasive analogs to the UUPWF statute. As the
federal district court reasoned in [CITATION] the English disarmament laws “are relevant analogues to the [federal]
felon dispossession statute, because they disarmed groups ‘based on their perceived potential
disobedience to the law (or sovereign).’ ” In addition, the Colonial and Revolutionary-era laws are
evidence that, “ ‘by the time of the Second Amendment’s ratification in 1791, there already was a
historical tradition of legislatures disarming persons based on the perception (sometimes odious
perceptions) that certain groups could not be trusted to be abide [by] the law or sovereign.’ ” Id.
*11 (quoting Agee, *9).
¶ 42 Here, the State relies specifically on the “surety statutes” of the mid-19th century as
analogous to the UUPWF statute. The surety statutes “required certain individuals to post bond
before carrying weapons in public.” Bruen, 597 U.S. at 55. In [CITATION],
The decisions of federal district courts may be considered as persuasive authority. Home
Star Bank & Financial Services v. Emergency Care & Health Organization, Ltd., 2012 IL App
(1st) 112321, ¶ 37 n.3.
- 18 - 2024 IL App (2d) 230305-U
district court found that the surety statutes were analogous to the federal unlawful possession-of-
a-firearm-by-a-felon statute (18 U.S.C. § 922(g)(1)), stating:
“[The] [surety] statutes presumed a right to ‘carry [a firearm] that [could] be burdened only
if another could make out a specific showing of “reasonable cause to fear an injury, or
breach of the peace.” ’ Id. (quoting Mass. Rev. Stat., ch. 134 § 16 (1836)). *** [T]he
Second Amendment also begins with a presumption that the individual has the right to
carry. However, § 922(g)(1) burdens this right just as the surety statutes did nearly two
hundred years ago. Over 65% of prisoners in the United States will be arrested again within
three years of their release and over 80% within nine years of their release. [Citation.] Thus,
felons clearly fall within a category of people who are not only reasonably believed to, but
also probable to cause an injury or breach of the peace. Although surety statutes did not
disarm citizens, the statutes did burden the right guaranteed by the Second Amendment in
a similar fashion.”
¶ 43 As noted, the Court in [CITATION] also reviewed the history of firearms regulation in England
and early America. See [CITATION], 2024 WL 3074728, *7-10. The Court observed that,
“[f]rom the earliest days of the common law, firearms regulations have included provisions barring
people from misusing weapons to harm or menace others.” Id. *7. “By the 1700s and early 1800s,
*** two distinct legal regimes had developed that specifically addressed firearms violence.” Id.
These were the surety statutes and the “ ‘going armed’ ” statutes. Id. *7-8. The latter “provided a
mechanism for punishing those who had menaced others with firearms.” Id. *8. These two sets of
laws, the Court concluded, “confirm what common sense suggests: When an individual poses a
clear threat of physical violence to another, the threatening individual may be disarmed.” Id. *9.
- 19 - 2024 IL App (2d) 230305-U
¶ 44 Thus, even though there is no “historical twin” for the UUPWF statute, “there is evidence
that categorical bans are permissible and that individuals that have been deemed dangerous, non-
law abiding, or even reasonably likely to breach the peace may have their right to keep and bear
arms restricted.” [CITATION].
¶ 45 Defendant contends, however, that “the historical record does not support Illinois’ flat ban
on the possession of firearms by a convicted felon,” but his arguments are not persuasive. First, he
argues that the history of gun regulation demonstrates that most restrictions were based on
dangerousness, not criminal history or status. However, contrary to defendant’s argument, the
status-based restrictions were based not on individualized assessments of dangerousness, but “on
a conclusion that the category as a whole presented an unacceptable risk of danger if armed.” See
[CITATION]. Indeed, “[n]ot all persons disarmed under historical precedents—not all
Protestants or Catholics in England, not all Native Americans, not all Catholics in Maryland, not
all early Americans who declined to swear an oath of loyalty—were violent or dangerous persons.”
Id.
¶ 46 Defendant also argues that the status-based restrictions were temporary or easily
removable. For instance, he asserts that, in the case of Protestant monarchs prohibiting Catholics
from possessing firearms unless they swore an oath of loyalty and renounced their papism, a person
could remove the disability by appearing before a justice of the peace and swearing oaths of
allegiance to the King. However, as the State notes, an individual prohibited from possessing a
firearm under the UUPWF statute may analogously obtain relief under section 10(c) of the FOID
Card Act (430 ILCS 65/10 (West 2020)) by submitting a petition showing
“(1) the applicant has not been convicted of a forcible felony under the laws of this State
or any other jurisdiction within 20 years of the applicant’s application for a Firearm
- 20 - 2024 IL App (2d) 230305-U
Owner’s Identification Card, or at least 20 years have passed since the end of any period
of imprisonment imposed in relation to that conviction; (2) the circumstances regarding a
criminal conviction, where applicable, the applicant’s criminal history and his reputation
are such that the applicant will not be likely to act in a manner dangerous to public safety;
(3) granting relief would not be contrary to the public interest; and (4) granting relief would
not be contrary to federal law.”
See [CITATION], 2021 IL 125513, ¶ 35 (“The legislature clearly
intended for felons to be able to obtain relief under section 10 of the FOID Card Act [(see 430
ILCS 65/10 (West 2020))]. Section 24-1.1(a)’s prohibition on the possession of weapons by felons
says that it does not apply if the person has been granted relief under section 10 of the FOID Card
Act. We do not believe that the legislature’s intent was to create such a right and then make it
impossible for anyone to obtain relief.”). Although defendant argues that applying for
reinstatement of the right to possess a firearm under this provision is akin to the “special need”
provision struck down in Bruen, that case is distinguishable. There is a crucial difference between
the government (1) applying its discretion to enable a law-abiding citizen to exercise the right to
possess a firearm and (2) applying its discretion to reinstate a law-breaking citizen’s right to
possess a firearm.
¶ 47 Finally, defendant directs our attention to three “founding-era proposals” that were
ultimately not incorporated into the second amendment. In one proposal, a majority of the New
Hampshire convention suggested that the bill of rights limit the right to bear arms to those who
had not engaged in “ ‘actual rebellion.’ ” See [CITATION], 919 F.3d 437, 454 (2019) (Barrett,
J., dissenting) (quoting 1 Jonathan Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 326 (2d ed. 1891)). In the Massachusetts convention, Samuel
- 21 - 2024 IL App (2d) 230305-U
Adams proposed that only “ ‘peaceable citizens’ ” have the right to bear arms. [CITATION] (quoting 2
Benard Schwartz, The Bill of Rights: A Documentary History 675, 681 (1971)). In the
Pennsylvania convention, the influential Pennsylvania minority suggested that the citizens’ right
to bear arms not be infringed “ ‘unless for crimes committed, or real danger of public injury from
[the] individuals.’ ” [CITATION] at 456 (quoting 2 Schwartz, at 662, 665). Defendant cites then-Judge
Barrett’s comment, in dissent, that “[t]he concern common to all three [proposals] is not about
[SEGMENT 19]
felons in particular or even criminals in general; it is about threatened violence and the risk of
public injury.” [CITATION]. Thus, according to defendant, the proposals do not support the notion of a
blanket disarmament of felons.
¶ 48 However, as defendant notes, none of the proposals were incorporated into the second
amendment. It can be argued that this was because limitations on the rights of felons to keep and
bear arms were understood. Recently, in [CITATION], the court observed that the existence of the
proposals supports “the proposition that it was ‘ “ ‘obvious’ ” to the Founders that persons who
committed crimes would properly be subject to disarmament laws.’ ” [CITATION], No. 23 CR 00450-1,
2024 WL 2292236, *12 (quoting [CITATION], No. 1:21-CR-00350-1, 2023 WL 6443924, * 9, citing
Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 273
(2008) (explaining that the Founders “did not object to the lack of an explicit exclusion of criminals
from the individual right to keep and bear arms” during the debates over “what became the Second
Amendment,” because this limitation “was understood”)). We agree with that reasoning.
¶ 49 In sum, defendant’s challenge to the UUPWF statute fails under the Bruen analysis because
felons, who are not law-abiding citizens, are not afforded the same second amendment protections
enjoyed by “the people” referenced therein. Further, even if the text of the second amendment was
- 22 - 2024 IL App (2d) 230305-U
to be construed as presumptively protecting felons, the UUPWF statute is consistent with this
Nation’s historical tradition of firearms regulation.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 52 Affirmed.
- 23 -
======
2024 IL App (1st) 231008-U
SECOND DIVISION
September 10, 2024
No. 1-23-1008
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 02900
)
SHAQUILLE WHITEHEAD, ) Honorable
) Angela Munari Petrone,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court of Cook County convicting defendant
of armed habitual criminal (AHC); the trial court did not consider facts not in evidence or
abandon its role as neutral arbiter to deny defendant a fair trial; the evidence was
sufficient to prove defendant’s guilt beyond a reasonable doubt; and the AHC statute is
constitutional under the United States and Illinois constitutions.
¶2 The State charged defendant, Shaquille Whitehead, with armed habitual criminal (AHC),
unlawful use of a weapon by a felon, and three counts of aggravated unlawful use of a weapon.
Following a bench trial, the circuit court of Cook County found defendant guilty of AHC and
UUWF. The court merged the conviction for UUWF into the conviction for AHC and sentenced
defendant to six years’ imprisonment for AHC. Defendant appeals the conviction on the grounds
(1) the trial court denied defendant a fair trial by considering facts not in evidence and
abandoning its role as neutral arbiter of the facts and adopting the role of prosecutor, (2) the State 1-23-1008
failed to prove him guilty of every element of the offense of AHC beyond a reasonable doubt,
and (3) the AHC statute is unconstitutional on its face and as applied to defendant under both the
United States Constitution and Illinois Constitution.
¶3 For the following reasons, we affirm.
¶4 BACKGROUND
¶5 The charges against defendant arose from a traffic stop of a vehicle defendant was
driving with one passenger. The State called one of the officers who stopped defendant’s vehicle
as its only live witness at defendant’s bench trial. The State also submitted into evidence footage
from the testifying officer’s body worn camera and the footage from the body worn camera of
one of the other officers involved in the traffic stop, but the second officer did not testify.
¶6 Officer Axel Gallardo of the Chicago Police Department testified that on February 9,
2022, he and his partner, Officer Rojas Yesenia, conducted a traffic stop. Officer Gallardo
approached the passenger side of the vehicle and his partner approached the driver’s side of the
vehicle. Officer Gallardo observed two people in the vehicle. He identified defendant as the
driver. Defendant did not have a valid driver’s license and the officers decided to tow the
vehicle. At that time, defendant was already out of the vehicle. Officer Gallardo asked the
passenger to exit the vehicle but the passenger did not immediately exit the vehicle. Officer
Yesenia recovered a loaded handgun from the pocket of a jacket the passenger was wearing.
Officers eventually removed the passenger from the vehicle and placed him into custody.
¶7 Officer Gallardo testified that after police placed the passenger into custody they
conducted an inventory search of the vehicle. During the inventory search, police found a firearm
“In the middle of the backseat on top of a child’s car seat.” The car seat was in the middle of the
backseat of the vehicle. Officer Gallardo testified he did not see the gun immediately because
1-23-1008
there was a blanket on top of the firearm. There was nothing else on top of the firearm other than
the blanket. Officer Gallardo removed “a laundry basket, clothes, and the blanket” before he
recovered the gun. The gun was loaded, it had an extended magazine, and it had a laser sight.
¶8 Officer Gallardo testified that at the time of the traffic stop he was wearing a body worn
camera. The State published the footage of the traffic stop from Officer Gallardo’s body worn
camera to the trial court without objection. Officer Gallardo verbally described his actions.
Officer Gallardo testified that he was searching the vehicle defendant had been driving. He
removed a plastic bag containing clothes. He recovered the firearm. Officer Gallardo testified he
recovered the firearm “On the child’s car seat. On top of the child’s car seat.” He pointed out the
exact area of the car seat where he recovered the firearm. The State asked that the record reflect
“that the officer pointed on the car seat.” The trial court asked the officer to point again and the
court clarified that the officer “pointed to an area that’s kind of reddish or pink on the car seat
which is to the left of the white basket as one is looking at the [image.]” The court asked if the
officer recovered the firearm “from the top of that which is now gray or black ***?” Officer
Gallardo identified the side of the car seat. The court asked, “Where did you recover it?” The
officer responded, “Where the child usually sits.” The court stated, “Oh, on the seat. That’s on
top of where the pink or red color is?” and the officer responded, “Yes.” The State stopped the
recording.
¶9 Officer Gallardo testified that he spoke to defendant with his partner present. The officer
read defendant his Miranda rights, after which he asked defendant who was the registered owner
of the vehicle. The officer testified that defendant stated the registered owner was his sister. The
officer testified that defendant also stated that “he came back from doing laundry” at the
laundromat, “and he said that he had no knowledge of the firearm.”
1-23-1008
¶ 10 Upon further examination by the State, Officer Gallardo testified there were two people
in the vehicle and no one was seated in the backseat. The State asked the officer to “describe
how the blanket was placed over the gun.” The officer testified, “It looks like the blanket was
placed over the gun.” The blanket was partially folded. When asked what he meant by “partially”
the officer testified, “It looks like it was just thrown into the car seat ***.” The firearm was
within arm’s reach of where defendant was seated and there was nothing else covering the
firearm besides the blanket.
¶ 11 On cross-examination, Officer Gallardo testified that defendant was being cooperative
with Officer Yesenia. When asked to exit the vehicle defendant did so. Officer Gallardo admitted
that the passenger was also within arm’s reach of the firearm recovered from the backseat of the
vehicle. The passenger did not get out of the car when asked and officers eventually had to
physically remove the passenger from the vehicle. Officer Gallardo agreed he had no way of
knowing how long the firearm was in the car seat or how long the passenger or defendant were in
the car. Officer Gallardo testified defendant told him he was coming back from doing laundry
[SEGMENT 20]
and the officer found a bag of laundry and a laundry basket in the car. The bag of laundry and the
laundry basket were not on top of the firearm. Officer Gallardo had no idea how long the blanket
had been there.
¶ 12 The State did not perform a redirect examination and asked that the officer be excused.
The trial court asked the defense if it needed the officer to stay and the defense stated it had no
objection to the officer being excused. The trial court initially excused the officer, but then stated
the court had “a couple of questions of the officer.” The officer retook the stand and the court
asked the officer what type of handgun he found. The officer responded, “It’s and FN firearm.”
The officer could not recall what the abbreviation “FN” meant or the caliber of the firearm. The
1-23-1008
State refreshed the officer’s memory with his case report, and the officer testified that, “It’s an
FN 509, nine millimeter.” The court asked whether the officer recalled the type of vehicle
defendant was driving. Officer Gallardo testified only that “It’s a black vehicle.” He refreshed
his memory again and stated, “Black Chevy, ma’am;” but the officer could not recall the kind of
Chevy. The trial court asked the State and the defense whether either had any questions based on
the court’s questions and both responded they did not.
¶ 13 The State informed the trial court it had no further live witnesses and that it would be
proceeding by stipulation. The parties stipulated that the footage of Officer Rojas’s body worn
camera was a true and accurate depiction of the events. The trial court admitted the recording
into evidence and the State published the video to the court. The court also admitted self-
authenticating certified copies of defendant’s two prior convictions for burglary.
¶ 14 The State rested its case and the defense moved for a directed finding. The trial court
denied defendant’s motion for a directed finding and the parties proceeded with closing
arguments. At the conclusion of the parties’ arguments the court stated it wanted “to look up
some law about guns found in vehicles” and continued the matter.
¶ 15 On December 8, 2022, the trial court issued its written order following the bench trial.
The court found defendant guilty of AHC and UUWF. “The State nolle prosequi [the remaining
counts.]” The trial court’s written order states, in pertinent part, that the officers stopped “a small
black Chevrolet.” When asked for his driver’s license and insurance defendant could not produce
them and said, “Coming right from the laundromat.” Defendant complied with the officer’s
request to exit the vehicle. The court wrote: “An inventory search of the Chevrolet yielded a .9
mm handgun with a laser sight and an extended magazine, atop a child’s car seat in the middle of
the backseat. A blanket had been loosely covering the gun. A large white bag of clothes and a
1-23-1008
laundry basket were immediately next to the gun.” The court recounted defendant’s statement to
the officer about the car belonging to his sister and coming from the laundromat, then continued
as follows:
“The State argued constructive possession of the .9 mm handgun that was
on top of the child’s car seat was proven. Joint knowledge and control exist; the
gun was within arm’s reach of where defendant and the passenger had been
seated. It had been put there recently, as it would have fallen from its position
with a sudden stop of the vehicle. The blanket covering the gun was not
random—it went with the laundry defendant admitted possessing. There were not
a lot of other things in the vehicle. It would have been impossible to place the
laundry where it was, and not realize a gun was on top of the car seat. *** The
gun was not under a seat, in the glove box or inside a door or inside a center
console or in the trunk.”
¶ 16 The trial court noted that the gun was “equal distance between the driver and passenger;
both were within arm’s reach of it.” The court acknowledged the gun was not in plain sight, it
was unknown how long it had been there, this was not defendant’s vehicle, and defendant “did
not act suspiciously and aggressively like the passenger did.” The court noted that proximity is
not enough for proof beyond a reasonable doubt.
¶ 17 The court summarized the holdings in [CITATION] and [CITATION], and the evidence in this case. Of note is that the
court stated that in [CITATION], the court found that, “If two or more persons share immediate and
exclusive control or share the intention and power to exercise control, then each has possession;
where possession has been shown, an inference of guilty knowledge can be drawn from the
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surrounding facts and circumstances.” Further, in [CITATION], the court found that “[w]here a
defendant was the driver of a vehicle, and had merely a lone passenger, defendant had immediate
and exclusive control of the inside of the automobile for purposes of constructive possession.”
Finally, the trial court here noted that in [CITATION], the court found that “a defendant’s mere
presence in a vehicle, without more, does not establish his knowledge of a weapon therein,” but
“[a]n inference of knowledge arises when the contraband is located in a place over which the
defendant had regular ongoing, control and it is an item that human experience teaches is rarely,
if ever, found unaccountably in such a place. A defendant’s close proximity to the weapon and a
description of where the weapon was found may also be considered.”
¶ 18 The trial court then wrote:
“A *** weapon, a .9 mm handgun with laser sight and extended magazine,
was found atop a child’s car seat in the middle of the backseat, immediately next
to a laundry basket and a bag of clothing, loosely covered by a blanket. The area
where this weapon was recovered was easily within arm’s reach of both defendant
and the front seat passenger; body camera video shows the Chevrolet defendant
was driving was a small vehicle. The weapon was in a location over which
defendant had control and had placed laundry shortly before. The weapon was
recently put atop the child’s seat—such a large and distinctive handgun would not
normally be left atop a child’s car seat in a vehicle, certainly would have fallen
upon sudden stop of the vehicle, and was loosely covered by a blanket; body cam
video shows blankets were part of the laundry that was in the backseat.”
¶ 19 Based on the findings stated above, the trial court found that the State proved beyond a
reasonable doubt that defendant “knew the .9 mm firearm with laser sight and extended
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magazine that was found in the backseat, atop the child’s car seat, was in the Chevrolet. The
evidence proved beyond a reasonable doubt that defendant constructively possessed that
firearm.”
¶ 20 Defendant filed a motion to reconsider the judgment. On May 4, 2023, the trial court
denied defendant’s motion to reconsider the finding of guilt in a written order.
¶ 21 On May 4, 2023, the trial court sentenced defendant. In its oral sentencing ruling, the trial
court noted that the sentencing range for AHC is six to thirty years. The court noted the nature of
the weapon, which it “consider[ed] to be significant.” The trial court initially described the
firearm as a “machine gun” but immediately corrected itself to say that “the weapon in this case
was a .9 millimeter handgun loaded with a laser sight and an extended magazine.” The court
agreed there was no evidence defendant actually used the gun and that his prior convictions
“were all burglaries, no indication of physical harm to someone else.” The court also found that
there “is some mitigating information in the presentence investigation in that [defendant] was
cooperative with the officers as shown on the video.” The court found “all of that warrants the
minimum sentence here of six years in the Illinois Department of Corrections.”
¶ 22 This appeal followed.
¶ 23 ANALYSIS
¶ 24 This is an appeal from a conviction following a bench trial attacking the fairness of the
trial based on the trial court’s alleged reliance on facts not contained in the record and
questioning of a witness, the sufficiency of the evidence to prove defendant guilty of every
element of the offense beyond a reasonable doubt, and the constitutionality of the criminal
statute under which the trial court convicted defendant.
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¶ 25 Our supreme court “has held that the deliberations of the trial judge are limited to the
record made before [it] during the course of the trial. A determination made by the trial judge
based upon a private investigation by the court or based upon private knowledge of the court,
untested by cross-examination, or any of the rules of evidence constitutes a denial of due process
of law.” [CITATION]. Although “[t]he rule is clear that when
the trial court is the trier of the facts every presumption will be accorded that the judge
considered only admissible evidence and disregarded inadmissible evidence in reaching his
conclusion” ([CITATION]), this presumption is rebutted by statements in the
record indicating the trial judge “considered matters which were not in evidence” (id.). Where
the trial judge considered matters not in evidence, “there is no alternative but to reverse and
remand for a new trial.” Id. In these circumstances “[w]hether a defendant’s due process rights
[SEGMENT 21]
have been denied is an issue of law, and thus, our review is de novo.” [CITATION] (the defendant argued the trial judge violated his right to due process
when the judge misremembered crucial evidence).
¶ 26 Furthermore, “a trial court has discretion to *** reopen a case on its own motion where a
sound basis for it appears in the record. [Citation.] The propriety of the judicial examination
depends on the circumstances of each case and rests largely in the trial court’s discretion.
[Citation.]” [CITATION]. We review matters committed
to the trial court’s discretion, including matters impacting a defendant’s right to a fair trial, for an
abuse of discretion. See [CITATION] (“When a
defendant argues that his due process rights and right to a fair trial were violated by the State’s
failure to disclose certain evidence in discovery, we review the trial court’s ruling on the matter
for an abuse of discretion.”). “An abuse of discretion occurs when no reasonable person would
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take the view adopted by the court. [Citations.] Moreover, the trial court’s ruling will not be
overturned unless the abuse of that discretion led to manifest prejudice against defendant.”
[CITATION], ¶ 134 (citing [CITATION]).
¶ 27 “When reviewing the sufficiency of the evidence,” “the relevant inquiry is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. [Citation.] This standard of
review applies in cases whether the evidence is direct or circumstantial.” [CITATION], ¶ 48.
¶ 28 “Constitutional challenges carry the heavy burden of successfully rebutting the strong
judicial presumption that statutes are constitutional. That presumption applies with equal force to
legislative enactments that declare and define conduct constituting a crime and determine the
penalties imposed for such conduct.” (Internal quotation marks and citations omitted.) [CITATION], ¶ 9. “The constitutionality of a statute is a question of law,
which is reviewed de novo.” Id.
¶ 29 For the reasons below, we find that the trial court did not deny defendant his right to a
fair trial by considering facts not in evidence or briefly questioning Officer Gallardo, the
evidence was sufficient to prove defendant guilty of every element of AHC beyond a reasonable
doubt, and the AHC statute is constitutional under the United States Constitution and Illinois
Constitution.
¶ 30 FAIRNESS OF DEFENDANT’S TRIAL
¶ 31 First, we turn to defendant’s argument the trial court deprived him of the right to a fair
trial by allegedly relying on facts not in evidence and abdicating its role as a neutral arbiter of the
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facts and adopting the role of a prosecutor when the trial court questioned Officer Gallardo.
Defendant argues the trial court relied on facts not in evidence to find him guilty, thereby
depriving him of his right to a fair trial. Defendant admits this issue was not properly preserved
for review and asks this court to review this issue as a matter of plain error. “To successfully
maintain a claim of either first- or second-prong plain error *** a defendant must prove actual
error.” [CITATION] That is why, “[u]nder the plain error doctrine, ‘the first step’ is to determine whether any error occurred at all.” [CITATION]
¶ 32 Once again, “the deliberations of the trial judge are limited to the record made before
[them] during the course of the trial. A determination made by the trial judge based upon a
private investigation by the court or based upon private knowledge of the court, untested by
cross-examination, or any of the rules of evidence constitutes a denial of due process of law.”
[CITATION] Nonetheless,
`“In a bench trial, it is the function of the trial court to determine the
credibility of witnesses, weigh the evidence, draw reasonable inferences
therefrom, and resolve any conflicts in the evidence. [CITATION] The trial court is
‘free to accept or reject as much or as little as it pleases of a witness’ testimony’
[CITATION] and ‘may take into account her own life and experience in ruling on the
evidence’ [CITATION]
“A trier of fact may infer from facts and circumstances in evidence other
connected facts that reasonably and usually follow according to common
experience. [CITATION] A trier of fact is not required to disregard inferences that
flow normally from the evidence, nor to seek all possible explanations consistent
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with innocence and elevate them to reasonable doubt, nor to be satisfied beyond a
reasonable doubt as to each link in the chain of circumstances if the evidence as a
whole satisfies the trier of fact beyond a reasonable doubt. [Citation.] [CITATION]
“We need only reverse a court’s determination when the trial court’s
reliance on matters outside the record is prejudicial to one of the parties.
[Citation.] However, ‘[r]eliance on information found [outside] the record is not
reversible error where there is no evidence that it either misled or entered into the
trial court’s determination.’ [Citation.] We afford a trial court every presumption
that it considered only admissible evidence in reaching a conclusion. [Citation.]
‘This assumption will be overcome only if the record affirmatively demonstrates
the contrary, as where it is established that the court’s finding rests on a private
investigation of the evidence, or on other private knowledge about the facts in the
case.’ [Citation.]” [CITATION]
¶ 33 Defendant asserts the record demonstrates the trial relied on the following specific facts
which defendant claims were not in evidence:
1. The blankets were part of the laundry that was in the backseat.
2. The gun was in a location where defendant had placed laundry shortly before.
3. The handgun was found atop a child’s car seat.
4. A blanket had been loosely covering the gun.
5. The handgun certainly would have fallen upon sudden stop of the vehicle.
6. The handgun was large and distinctive.
7. The car was small.
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¶ 34 First, we address defendant’s implication of a distinction between the trial court saying
the handgun was found “atop” the car seat rather than “where the child usually sits,” from which
we can only infer that defendant believes the trial court found the handgun was on top of the
backrest of the car seat rather than on top of the seat of the car seat, as Officer Gallardo testified.
Defendant argues this allegedly inaccurate assumption by the trial court led the trial court to
conclude the handgun would have fallen from the car seat upon a sudden stop. These arguments
fail.
¶ 35 Defendant offers no evidence that is what the trial court meant other than his own
characterization of what “atop” means. We reject defendant’s characterization as refuted by the
record. The State’s statement for the record about where the handgun was found was admittedly
vague. The trial court questioned Officer Gallardo itself to clarify his testimony. It was in
response to the trial court’s questioning that Officer Gallardo testified the gun was found "where
the child usually sits.” The record, rather than establishing that the trial court relied on a fact not
in evidence, establishes that the trial court was keenly interested in and consciously aware of the
exact location where the gun was recovered.
¶ 36 Next, defendant also argues the State offered no evidence of what was or was not a part
of defendant’s laundry, and the trial court’s speculation led the court to conclude the handgun
was in a place where defendant had just placed laundry and therefore he must have seen it.
Defendant argues the officer never testified the blanket was “loosely” covering the handgun.
Defendant argues the conclusion the blanket “loosely” covered the handgun is belied by the
recording from Officer Gallardo’s body worn camera which shows the officer “pulling hard” on
the blanket to remove it. Defendant separately argues the State “never established that a gun
placed on the seat ‘where the child usually sits’ and covered by a blanket would have fallen
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anywhere upon a sudden stop of the vehicle, or that the gun must have been placed on the seat
recently.”
¶ 37 Defendant argues these facts, which allegedly are not part of the record, led the trial court
to reason that because the gun had not fallen then it must have been put there only recently, and
if it were put there recently it must have been put there by defendant, which, defendant argues,
led to the court’s determination that the State proved that defendant “had knowledge of the gun.”
Defendant also argues the State offered no evidence of the size of the handgun or of the car, yet
the trial court relied on the fact the gun was “large and distinctive” and the car was “small” to
find him guilty. Defendant argues that the trial court’s assumption of a fact not in evidence about
the size of the car permitted the court to find the State proved the handgun was in arm’s reach
and, therefore, that defendant constructively possessed the gun. Defendant does not explicitly
argue, as he did with the other alleged facts not in evidence, how the trial court’s alleged
adoption of the fact of the size and distinctiveness of the handgun influenced its decision and
prejudiced him.
[SEGMENT 22]
¶ 38 The State responds the evidence adduced at trial supported the reasonable inferences that
defendant had recently placed the laundry in the car and that the blanket was part of the laundry.
The State points to evidence that defendant stated he was coming from the laundromat and the
proximity of the blanket to the laundry basket and bag of clothes as supporting the inferences
that the blanket was part of the laundry and had recently been placed in the car. The State argues
the recording from the officer’s body worn camera shows the size of the car and the trial court
expressly based its finding about the size of the car on the video.
¶ 39 The State also argues the recording shows the size and shape of the handgun and, further,
that the officer testified that the handgun was a .9 mm caliber with a laser sight and distinctive
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magazine, both of which support the trial court’s finding that the gun was large and distinctive.
The State points to the officer’s testimony that it appeared the blanket had been thrown into the
seat, and the depiction of the area in the recording, as supporting the inferences that the blanket
“loosely” covered the gun and that the gun would have fallen off the seat in the event of a sudden
stop. The State argues it was for the trial court to decide what the fact the officer had to “pull
hard” on the blanket meant and that the court could have decided it just meant the blanket was
large.
¶ 40 In reply, defendant offers his own interpretation of what the same facts noted by the State
mean, positing counter-inferences and what defendant believes to be “the most likely scenario.”
Defendant argues the size of the blanket supports his argument the gun was completely
concealed and, therefore, he did not know it was present. Defendant simply denies that it can be
inferred from the “fact that a small portion of the blanket hung very slightly over the bag of
laundry” (a fact the trial court did not rely on) that defendant placed the blanket in the car and
over the gun.
¶ 41 We find that the trial court did not make any determinations based upon information not
in the record. [CITATION] Rather, the trial court properly weighed the evidence and drew reasonable inferences therefrom. Moreover, the trial court was free to accept Officer
Gallardo’s admissible testimony about the blanket and properly took into account its own life
and experience in ruling on the evidence. [CITATION] This
record does not affirmatively demonstrate the contrary. [CITATION] Defendant’s arguments are largely
based on inferences consistent with innocence rather than guilt. The trial court was not “required
to disregard inferences that flow normally from the evidence, nor to seek all possible
explanations consistent with innocence and elevate them to reasonable doubt.” [CITATION]
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App (1st) 172162, ¶ 35. Finally, defendant complains the trial court’s judgment is based on “a
string of inferences.” This assertion does not lead to the conclusion that the evidence is so
improbable or unsatisfactory to create a reasonable doubt of defendant’s guilt. [CITATION], 2024 IL
App (1st) 181491, ¶ 194 (“We will not reverse the *** verdict for lack of evidence unless the
evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt.’ [Citation.]”). “The State has the burden of establishing each element of the
offense beyond a reasonable doubt. However, this burden does not require that the State
demonstrate every link in the chain; rather the court can rely upon the reasonable inferences
which arise from circumstantial evidence.” [CITATION], 241 Ill. App. 3d 986, 992 (1993).
And, “a criminal conviction ‘may be based solely on circumstantial evidence.’ [Citation.]”
[CITATION], 2023 IL App (1st) 220920, ¶ 62.
¶ 42 The finding that “[t]he blanket covering the gun *** went with the laundry defendant
admitted possessing” is a reasonable inference from defendant’s own admission he was just
coming from the laundromat, the nature of the item itself—which defendant admits was a large
blanket—and its proximity to other items that defendant does not dispute were part of the
laundry he had just done—specifically the laundry basket and bag of clothes. The trial court
noted another fact—one which defendant does not dispute—that supports the inference that the
blanket was part of defendant’s laundry: “There were not a lot of other things in the vehicle.” If
the vehicle was primarily carrying what defendant does not dispute was laundry it stands to
reason the blanket was also laundry. Similarly, the finding that the blanket “had been put there
recently” is supported by defendant’s admission he was just coming from the laundromat and the
reasonable inference from the facts and circumstances that the blanket was part of that laundry.
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¶ 43 Furthermore, Officer Gallardo testified about the blanket that, “It looks like it was just
thrown into the car seat.” That, and the trial court’s own observations, are sufficient to
reasonably infer that “[a] blanket had been loosely covering the gun.” One may reasonably infer
from common experience that a “partially folded” blanket that is “just thrown over” a car seat, as
Officer Gallardo testified, as opposed to being pressed down or tucked in, would rest loosely
over the car seat. One may also infer from common experience that regardless how large or
heavy a blanket is, if it is just “thrown over” a car seat it would not press down on an object on
the seat portion of the car seat of its own weight. Similarly here, because it is reasonable to infer
that the blanket sat “loosely” over the car seat, a heavy object like a firearm (one may reasonably
infer the approximate mass of a handgun) could fall upon a sudden stop of the vehicle. In this
instance, however, whether that inference is reasonable from the evidence or not, we find
defendant was not prejudiced by it and, therefore, reversal is not required. [CITATION], ¶¶ 54-55. Defendant argues the trial court used this inference to infer the handgun
had been placed there recently—because it had not fallen—and because it had been placed there
recently, defendant knew about it. We disagree. Although the trial court did find that “[i]t had
been placed there recently, as it would have fallen from its position with a sudden stop of the
vehicle,” this was not the trial court’s reason for finding defendant knew the gun was in the car
within his reach. The trial court wrote, “It would have been impossible to place the laundry
where it was, and not realize a gun was on top of the car seat.”
¶ 44 We find the trial court found knowledge based on the findings (both from the evidence
and reasonable inferences therefrom) that the handgun would have been visible on the seat of the
car seat before laundry was placed in the car, the blanket was part of the laundry, and defendant
placed the laundry—thereby covering the handgun—in the car recently, as he was just coming
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from the laundromat. Finally, the trial court saw the gun, heard a description of the gun, and saw
the car. These facts are undisputed. The trial court’s conclusions about the size of the handgun
and the car were not based on facts not in evidence but on what it heard and saw.
¶ 45 The trial court did not base its judgment on facts not in evidence. “Finding no error on
this contention, we find no plain error or ineffectiveness of counsel.” [CITATION]. Defendant’s argument he was denied a fair trial on this basis fails.
¶ 46 Next, defendant argues the trial court “crossed the line between trier of fact and advocate
for the State” when the court questioned Officer Gallardo.
“A criminal defendant who elects to be tried in a bench trial is entitled to
the same fair, patient, and impartial consideration he would be entitled to by a
jury composed of fair, impartial, careful and considerate jurors. [Citation.] *** A
trial judge’s questioning of a witness must be done in a fair and impartial manner,
without showing bias or prejudice against either party. [Citation.]” (Internal
quotation marks omitted.) [CITATION].
¶ 47 This court has explained the trial court’s role in this context: “The trial court has the right
to question witnesses in order to elicit the truth or to bring enlightenment on material issues
which seem obscure.” [CITATION]. Further,
“Illinois courts have recognized that the proper function of a judge
includes a duty to ensure that justice is done in criminal trials when, for instance,
a certain fact has not been developed or a certain line of inquiry has not been
pursued, as long as the judge does not in any way become an advocate for one
side or the other. [Citations.]
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To this end, a trial court may, sua sponte, call its own witnesses and
question witnesses called by either party. [CITATION.] What a trial court may not do
is assume the role of an advocate. [CITATION.] But, a suggestion that the State
present evidence proving essential elements of an offense is not an assumption of
the role of a prosecutor. [CITATION.]” [CITATION.],
[SEGMENT 23]
¶¶ 24-25 (citing, inter alia, [CITATION.]).
Moreover, “[i]n a bench trial, it is the function of the trial court to determine the
credibility of witnesses [and] weigh the evidence ***. The trial court is ‘free to accept or
reject as much or as little as it pleases of a witness’ testimony.’ [CITATION.]” [CITATION.]
IL App (1st) 160498, ¶¶ 54-55.
¶ 48 Defendant also cites [CITATION.] and argues there was no evidence “that a fact had not been
developed or a line of inquiry not pursued” to permit the trial court to interpose, and the court
assumed the role of advocate when the court questioned Officer Gallardo and “used Gallardo’s
answers to support the State’s case.” Defendant argues that the court assumed the function of
advocate and favored the State because the court used facts obtained from its own questioning to
find defendant guilty—specifically, the caliber of the handgun and the size of the car. Defendant
argues that evidence of the fact the trial court assumed the role of prosecutor lies in the fact that
Officer Gallardo could only describe the car as a black Chevy but the court repeatedly described
the car as “small.” Defendant argues the trial court used the size of the car to find the gun was
within defendant’s reach. Defendant does not specify how the caliber of the gun entered into the
court’s decision making and only notes that the court found the gun to be “large and distinctive”
based the court’s own questioning of Gallardo.
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¶ 49 We find that the trial court “did not abandon its role as neutral arbiter and assume the role
of a prosecutor.” [CITATION]¶ 26. The trial court’s questioning was not
extensive. [CITATION] (“A trial judge’s questioning ‘should rarely be extensive,’
although an ‘extensive examination may be justified if the court has reason to believe that a
witness is not telling the truth.’ ”). We disagree with defendant’s claim that there was no fact that
had not been developed when the trial court questioned Gallardo. The exact location where the
gun was recovered had not been developed when the court asked Gallardo, “Where did you
recover it?” The location of the gun was clearly an important fact that needed to be developed.
“And, as this was a bench trial, the court possessed wide latitude, the question related to its fact-
finding role, and the risk of prejudice to [defendant] was low.” [CITATION]
¶ 26 (holding trial court did not abandon its role as neutral arbiter). The risk of prejudice to
defendant from the question itself was low because the answer may have helped defendant. (For
example, if Officer Gallardo had testified the gun was on top of the backrest defendant might
have used that testimony to argue the gun was not in his reach—although we express no opinion
about the efficacy of that argument.)
¶ 50 “To show prejudice in a bench trial, the defendant must show that ‘the tenor of the
court’s questioning indicates the court has prejudged the outcome before hearing all of the
evidence.’ [Citation.]” [CITATION] There is nothing
to indicate the trial court had prejudged the outcome. The question was a direct request for a
relevant fact, the answer to which may have benefitted either party. In fact, defendant uses his
own interpretation of the evidence of the location of the gun to bolster his argument the trial
court’s findings are not supported by evidence in the record. We find that this question was
asked “in a fair and impartial manner, without in any way showing bias for or prejudice against
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either party to the litigation.” [CITATION]. Furthermore, in this case, like in [CITATION], the
trial court “did not decide *** that the State needed to present more evidence and then order the
State to produce it. Rather, the trial court [elicited] evidence before argument.” Id. ¶ 30.
Therefore, in this case, the questioning was a “proper function of a judge.” [CITATION]
¶ 51 Nor had the type of gun and car been developed when the trial court recalled Officer
Gallardo to the stand. Regardless, the trial court’s questioning about the caliber of the gun and
the type of car were “not necessary to prove the State’s case.” Id. ¶ 30. For whatever purpose it
may or may not have been used, the State elicited sufficient evidence for the trial court to find
the handgun was “large and distinctive.” The State asked Officer Gallardo, referring to the
handgun, “What attachments did it have?” Officer Gallardo responded, “It has an extended
magazine and a laser sight.” That evidence elicited by the State is sufficient to permit the trial
court to find the gun “large” (it had an extended magazine) and “distinctive” (it had a laser
sight). As for the size of the car, any testimony elicited by the trial court touching on the size of
the car was not necessary to prove whether the gun was within defendant’s reach. The State
asked, “Was the firearm within arm’s reach of where the defendant had been seated?” Officer
Gallardo responded, “Yes.”
¶ 52 Defendant has failed to establish prejudice from the trial court’s questioning of Officer
Gallardo. We find the trial court did not abuse its discretion.
¶ 53 SUFFICIENCY OF THE EVIDENCE
¶ 54 Defendant argues the State failed to prove beyond a reasonable doubt that defendant had
constructive possession of the handgun. “To prove [defendant] guilty of armed habitual criminal,
the State had to show two elements: (i) [defendant] possessed a firearm and (ii) possession was
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after having been convicted of two qualifying offenses.” [CITATION]. Defendant only disputes whether the State proved possession. In the absence of
actual possession, the State must seek “to prove constructive possession—that [defendant] had
knowledge of the gun’s presence and ‘immediate and exclusive’ control over the area where
officers found it. [Citation.]” Id., [CITATION] (“When a
defendant is not found in actual possession, the State must prove constructive possession.”).
Defendant argues the State failed to prove that defendant constructively possessed the handgun
because the gun was not visible, defendant did not make any gestures or movements toward the
backseat of the car, no physical evidence links him to the handgun, and defendant made no
incriminating statements.
¶ 55 “A person has actual possession when he has immediate and exclusive control over an
item; actual possession does not require ‘present personal touching’ of that item. [Citation.] A
person has constructive possession when he lacks actual possession but has the intent and
capability to exercise control over the item. [Citation.]” [CITATION]. “The control may be exercised directly or through another person. [CITATIONS.] ‘[I]f
two or more persons share [the] immediate and exclusive control or share the intention and [the]
power to exercise control’ over a thing, ‘then each [one] has possession.’ [Citation.]” [CITATION].
¶ 56 “[I]t is not the function of the reviewing court to retry the defendant. [Citation.] *** The
credibility of the witnesses, the weight to be given their testimony, and the resolution of any
conflicts in the evidence are within the province of the trier of fact, and a reviewing court will
not substitute its judgment for that of the trier of fact on these matters. [Citation.]” [CITATION]. “We have recognized that constructive possession often involves
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‘entirely circumstantial’ evidence [citation].” [CITATION]. ¶ 45.
Circumstantial evidence is sufficient to sustain a criminal conviction. Id. ¶ 49.
“Circumstantial evidence is sufficient to sustain a criminal conviction,
provided that such evidence satisfies proof beyond a reasonable doubt of the
elements of the crime charged. [Citation.] The trier of fact need not be satisfied
beyond a reasonable doubt as to each link in the chain of circumstances; it is
sufficient if all of the evidence taken together satisfies the trier of fact beyond a
reasonable doubt of the defendant’s guilt. [Citation.] To prove guilt beyond a
reasonable doubt does not mean that a [trier of fact] must disregard the inferences
that flow normally from the evidence before it.” [CITATION],
¶ 49.
Nor is the trier of fact “required to *** seek all possible explanations consistent with innocence
and elevate them to reasonable doubt. [Citation.] In other words, the State need not disprove or
rule out all possible factual scenarios in order to sustain its burden.” [CITATION], ¶ 36. “We will not reverse the *** verdict for lack of evidence unless the
evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt.’ [Citation.]” [CITATION], ¶ 194.
¶ 57 In his opening brief, defendant did not make any specific arguments that the State failed
to prove he had “immediate and exclusive control over the area where the firearm is found.”
Although the State does not argue forfeiture, the State does assert, repeatedly, that defendant is
not challenging the “control” factor for constructive possession. Defendant refutes this
[SEGMENT 24]
contention, arguing in reply that he did argue the State failed to prove “control” because
defendant challenged the sufficiency of the evidence to prove constructive possession in general,
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and defendant cited cases in which the court found a lack of “control.” The State is correct that
defendant’s opening brief did not argue that the State failed to prove defendant had control over
the area where the firearm is found.
“Arguments raised for the first time in a reply brief need not be addressed
by this court. [Citation.] Besides maintaining consistency and uniformity,
avoiding confusion, and preventing gamesmanship, Rule 341(h)(7) prevents
unfairness to an adverse party who would have no notice of the issue or an
opportunity to provide a response. [Where an] issue could have been raised in the
principle brief but was not, we decline to entertain it.” [CITATION]
¶ 58 Although the issue of control is not properly before this court, we find defendant’s newly
raised arguments that the State failed to prove control unpersuasive.1
¶ 59 Defendant argues the State failed to prove control because he did not own the vehicle and
“his status as the driver did not establish his possession of the entire contents of the vehicle.”
“[W]e agree with *** defendant that ownership is not dispositive,” but [it] may be relevant or
“probative of the issue of control.” [CITATION]. Ownership is not a necessary element of control for purposes of constructive possession and plays no part in
this case. However, “direct evidence of a defendant driving a vehicle is surely sufficient evidence
of control.” [CITATION] Defendant’s new argument the State failed
to prove the “control” element of constructive possession fails. Defendant is correct only in that
1
See [CITATION] (where the State raised the issue of
abandonment for the first time in its reply brief, the court found the issue was not properly before
the court but, nonetheless found the State failed to carry its burden of proving the incriminating
property was abandoned), vacated on other grounds, [CITATION].
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“his status as the driver did not establish his [knowing] possession of the entire contents of the
vehicle.”
¶ 60 “[K]nowledge may often be inferred from one’s control over an area. [CITATION.] Such an
inference is certainly not always appropriate.” [CITATION]. “While
any sort of control will satisfy the first component of constructive possession, *** only ‘regular,
ongoing control’ may give rise to an inference of knowledge.” (Emphasis added.) Id. In the
absence of “regular, ongoing control” the State must present other evidence of knowledge, which
may include “circumstantial evidence from which [the] defendant’s knowledge could be
inferred.” [CITATION]. The State does not have to prove the handgun was
in plain view at all times, as long as defendant had an opportunity to observe it. See [CITATION]. For the reasons stated below, we find the State did
present evidence of knowledge other than defendant’s status as the driver.
¶ 61 Defendant also argues that the trial court misplaced its reliance on [CITATION], because [CITATION] is distinguishable in that, in [CITATION], the defendant was alone in
the car, fled from police, and the gun was hidden in a way that called attention to its presence. In
[CITATION], the court found that the defendant had control of the vehicle because the defendant “was
its driver and sole occupant.” [CITATION]. It is clear from [CITATION]
that it did not only rely on the fact the defendant was alone in the car but instead, the fact the
defendant was alone in the car was just additional “evidence for a rational trier of fact to find that
[the] defendant controlled the vehicle from which the contraband was discovered.” Id. This
conclusion is proven by the [CITATION] court citation in support of this finding to [CITATION],
for the proposition that “ ‘because the defendant was the driver of the vehicle, and because he had merely a lone passenger, defendant had
- 25 - 1-23-1008
immediate and exclusive control of the inside of the automobile’ for purposes of constructive
possession of methaqualone recovered from under the front passenger’s seat” (emphasis added),
and [CITATION] (“The defendant had immediate and
exclusive control over the area in which the officer found the gun. The presence of the other men
in the car does not negate defendant’s constructive possession of the concealed weapon.”)
[CITATION], ¶ 35.
¶ 62 Additionally, the fact the defendant in [CITATION] fled was a relevant, but not a necessary,
fact in support of the inference of the defendant’s knowledge of the presence of the handgun. See
id. ¶ 29 (introducing evidence of defendant’s flight, along with other evidence, by stating “[a]lso
supporting the inference of defendant’s knowledge”). The [CITATION] court did rely, in part, on the
fact that after manipulating “the compartment containing the firearm, [it was] immediately
visible” and “was located so close to the driver’s area and was readily accessible upon
‘manipulation’ [to] suggest the firearm was intentionally placed there to be readily accessible to
the driver” to find that the evidence was sufficient to prove the defendant knew the firearm was
in the vehicle. Id. ¶ 38. Nothing in [CITATION] suggests that its factual determinations are necessary
factors to find knowledge of the presence of contraband. The [CITATION] court merely applied the
facts of the case before it to the question of whether “the contraband [was] located in a place
over which the defendant had ‘regular ongoing control’ and [was] ‘an item that human
experience teaches is rarely, if ever, found unaccountably in such a place.’ [Citation.]” (id. ¶ 37)
to find that defendant knew the firearm was in the vehicle. The facts of this case satisfy those
standards. Defendant’s attempt to distinguish [CITATION] is unavailing.
¶ 63 Turning to the question of defendant’s knowledge, and control, in [CITATION],
a jury found the defendant guilty of aggravated unlawful use of a weapon where the
- 26 - 1-23-1008
defendant was a passenger in a car and after an inventory search of the car police recovered a
handgun beneath the defendant’s seat. [CITATION]. Before trial, the defendant
alternatively told police the driver of the vehicle had shown the defendant the gun in the
defendant’s residence, after which the defendant placed the gun on a table, and that the driver
had shown the defendant the gun in the car after which the defendant returned it and exited the
car. [CITATION]. At trial, the defendant testified he had no knowledge of the gun in the vehicle and denied
making any statements about the driver showing the defendant the gun. [CITATION].
¶ 64 The defendant in [CITATION] argued that the State failed to prove the defendant had
knowledge of the gun in the vehicle. [CITATION]. The court held that it was incumbent on the State
to present some circumstantial evidence of knowledge of the presence of the weapon. [CITATION].
The court stated that “[a] defendant’s mere presence in a car, without more, is not evidence that
he knows a weapon is in the car.” [CITATION]). The court found that some factors from which knowledge could be inferred include “(1)
the visibility of the weapon from defendant’s position in the car, (2) the period of time in which
the defendant had an opportunity to observe the weapon, (3) any gestures by the defendant
indicating an effort to retrieve or hide the weapon, and (4) the size of the weapon.” [CITATION]-92.
But the [CITATION] court also found that “[c]ourts should also consider any other relevant
circumstantial evidence of knowledge, including whether the defendant had a possessory or
ownership interest in the weapon or in the automobile in which the weapon was found.” [CITATION]). In [CITATION], the State “failed to introduce any evidence
that [the defendant] had knowledge of the weapon’s presence in the vehicle in which the
defendant was the passenger.” [CITATION].
- 27 - 1-23-1008
¶ 65 Subsequently, in [CITATION], the defendant argued that “his conviction must be
reversed where there was nothing connecting him to [drugs recovered from ‘the pouch behind
the driver’s seat of the car in which he was a passenger’] aside from his mere presence in the car,
which [the defendant] maintains is insufficient as a matter of law.” [CITATION], ¶ 36. The Robinson court found that “[w]hen there is no direct evidence of
knowledge of contraband in a car, reviewing courts look to four factors, derived from [CITATION], and cited in [CITATION], to
determine whether the State presented sufficient circumstantial evidence from which the
defendant’s knowledge may reasonably be inferred.” Id. ¶ 39. The court listed the “Bailey
factors” and further stated that the “State cannot rely on a defendant’s mere presence to establish
knowledge that a controlled substance is in a vehicle.” Id. (citing [CITATION], 2021 IL App
[SEGMENT 25]
(2d) 190190, ¶ 40, [CITATION]). The Robinson court,
relying exclusively on the “Bailey factors,” found that the State “failed to present sufficient
evidence that [the] defendant had knowledge of the presence of the bag of drugs as to establish
constructive possession.” Id. ¶ 44 (“Having considered the Bailey factors, we conclude that in
this case, the State failed to present sufficient evidence that defendant had knowledge of the
presence of the bag of drugs so as to establish constructive possession.”).
¶ 66 In this case, defendant argues that applying the “Bailey factors” to this case
“demonstrates that the State failed to prove that [defendant] knowingly possessed the gun the
police recovered from the back seat of [defendant’s] sister’s car. Defendant argues (1) the
handgun was not visible to defendant—and in support thereof defendant argues the State failed
to prove the blanket covering the gun was part of defendant’s laundry; (2) there is no evidence as
to how long the gun was in the car and therefore no evidence that defendant had any opportunity
- 28 - 1-23-1008
to observe the handgun; (3) there was no evidence of defendant attempting to retrieve or hide the
handgun, nor that defendant made any furtive movements toward the back seat; (4) the size of
the gun—“ ‘small’ enough to sit on the child’s car seat completely out of sight—does not support
the conclusion that [defendant] was aware of its presence;” and (5) any additional factors of
knowledge do not support his conviction where (i) there is a lack of physical evidence tying
defendant to the handgun, (ii) defendant did not try to flee, and (iii) defendant cooperated with
police and never made an admission of guilt or otherwise display a guilty conscious. Defendant
argues that under [CITATION], his mere presence in the car, which he argues is the only fact the State
proved, is not enough to prove knowledge. Defendant concludes “the State failed to establish
constructive possession beyond a reasonable doubt,” and this court should reverse defendant’s
AHC conviction outright.
¶ 67 The State responds defendant’s status as the driver, time in the car, and the location and
size of the handgun prove defendant had knowledge and control of the firearm. The State argues
that defendant was not “merely present” in the vehicle but was the driver, as the driver defendant
had control over the vehicle’s contents, and that control raised the reasonable inference
defendant had knowledge of the firearm notwithstanding the passenger’s access to the firearm.
The State also argues that defendant had control over the firearm because defendant was the
driver and because of the location of the handgun—within arm’s reach where “firearms are not
normally found.” The State argues that defendant’s control “over the vehicle’s contents generates
a reasonable inference of his knowing possession of the weapon.” The State disputes defendant’s
analysis of the [CITATION] factors, arguing (regarding the first factor) that the evidence raises a
reasonable inference that the blanket covering the handgun was part of the laundry defendant
moved in and out of the vehicle, and the firearm, which was easily identifiable as such, would
- 29 - 1-23-1008
have either been visible when defendant placed the blanket over it or that defendant placed it
there himself. As to the remaining factors, the State argues it did not have to elicit evidence as to
every factor to establish defendant’s constructive possession of the handgun because “Bailey’s
list is not exhaustive, and a finding of knowledge does not require that every factor on the list be
met.” Rather, the State argues, the circumstantial evidence “all supported the [trial] court’s guilty
verdict.”
¶ 68 First, we agree with the State that it was not required to produce evidence of every
“Bailey factor” to prove defendant constructively possessed the handgun. As the State notes,
even the Bailey court stated that “[c]ourts should also consider any other relevant circumstantial
evidence of knowledge ***.” [CITATION] This court has recognized that
“[t]he Bailey factors do not *** constitute the exclusive means for determining whether a vehicle
occupant knew that contraband was present” ((emphasis in original) [CITATION], see also [CITATION] (“[t]he court’s list
of factors was not exclusive”)), and that we are not required to apply them in every case (see
[CITATION] (“the [Bailey] court’s list of factors was not
exclusive. [Citation.] Given the different circumstances in the current case, we believe the factors
considered in Bailey are less relevant here.”)). The foregoing notwithstanding, “the period of
time in which [defendant] had an opportunity to observe the weapon” ([CITATION] (listing factors)) weighs in favor of inferring that defendant had knowledge of the handgun.
The evidence was sufficient to produce reasonable inferences that defendant placed the blanket
in the car, and thus over the handgun visible on the seat of the car seat, as part of the laundry
defendant admitted he had just done. A reasonable trier of fact could infer defendant had the
opportunity to observe the weapon when putting the laundry in the car to go to the laundromat,
- 30 - 1-23-1008
taking it out to do the laundry, and a third time putting the laundry back in the car. Any would
have provided an opportunity to observe the handgun on the car seat.
¶ 69 Second, while defendant is correct that his “mere presence” in the vehicle, alone, is
insufficient to establish his knowledge of the presence of the firearm ([CITATION], ¶ 25 (“A defendant’s mere presence in a car, without more, is not evidence
that he knows a weapon is in the car.”)), it is also true that defendant’s status as the driver is
sufficient to establish that defendant had immediate and exclusive control over the area where
the weapon was found (uncased, covered by a blanket, on the seat of a car seat, in the middle of
the backseat of the vehicle defendant was driving). [CITATION], ¶ 42
(“direct evidence of a defendant driving a vehicle is surely sufficient evidence of control”), see
also [CITATION], ¶ 28 (quoting [CITATION]). And “[p]roof that a
defendant had control over the premises where the contraband is found gives rise to an inference
of knowledge and possession of that contraband” ([CITATION], ¶ 27).
¶ 70 In [CITATION], the court held that for an inference to arise that the defendant had
knowledge of a handgun within the vehicle’s glove compartment, “the State had to demonstrate
that [the] defendant had regular, ongoing control over the vehicle that he was driving.” [CITATION]. Alternatively, the State must adduce “other
evidence establishing knowledge of the weapon” which may include circumstantial evidence.
[CITATION] (“knowledge may, and most often must, be
proved by circumstantial evidence.”). There was no evidence and we do not find that defendant
had “regular, ongoing control” of the vehicle, but the handgun, even covered by the blanket, was
“an item that human experience teaches is rarely, if ever, found unaccountably in such a place.”
[CITATION]. Nonetheless, the evidence established more than defendant’s
- 31 - 1-23-1008
“mere presence in the vehicle.” The State adduced additional circumstantial evidence of
defendant’s knowledge of the handgun.
¶ 71 The handgun was found in the middle of the backseat on the seat portion of the car seat
and would have been in plain view if it were not covered by the blanket; and as previously
discussed, the evidence permitted the reasonable inference that the blanket found covering the
handgun was part of the laundry, that defendant placed the laundry in the car either before or
after leaving the laundromat, and that defendant would have seen the handgun on the car seat
when defendant put the laundry in the car (or, as Officer Gallardo testified, tossed the blanket
over the car seat). We do not need to find that defendant put the handgun on the car seat or that
defendant intentionally tried to hide the gun with the blanket (although both are reasonable
inferences from the evidence). All that is required to establish defendant’s constructive
possession of the handgun is that defendant “had knowledge of the presence of the contraband,
and had control over the area where the contraband was found.” [CITATION], ¶ 27 (citing [CITATION] at
1031). It is also irrelevant that defendant’s passenger had an equal ability to exercise control over
the firearm or may have also known of its presence. “Constructive possession is not diminished
by evidence of others’ access to contraband.” [CITATION], ¶ 27. It is
“settled law that constructive possession of contraband can be established even where possession
is joint or others have access to the area where the contraband is recovered.” [CITATION], ¶ 43. The State proved that defendant had immediate and
exclusive control over the area where officers found the handgun and knowledge of the gun’s
presence in the vehicle. [CITATION], ¶ 17. The evidence admitted at trial and the reasonable inferences therefrom were
- 32 - 1-23-1008
sufficient to permit the trier of fact to find beyond a reasonable doubt that defendant
constructively possessed the handgun.
¶ 72 CONSTITUTIONALITY OF AHC UNDER THE SECOND AMENDMENT
¶ 73 Defendant argues the AHC statute is unconstitutional on its face and as applied to
[SEGMENT 26]
defendant because it violates the second amendment to the United State Constitution. A facial
challenge requires a showing that the statute in question is unconstitutional under any set of
facts. [CITATION], ¶ 12. A conviction based on a facially
unconstitutional statute is void ([CITATION], ¶ 67), and the issue of the
constitutionality of the statute may be raised by a defendant for the first time on appeal ([CITATION], ¶ 8).
¶ 74 “[A]n as-applied challenge requires a showing that the statute is unconstitutional as it
applies to the specific facts and circumstances of the challenging party.” [CITATION], ¶ 12. “A facial challenge fails if we can conceive of any set of circumstances in
which the statute could be validly applied—including as applied to the very party before us.” [CITATION], ¶ 48 (citing [CITATION])
“Because facial and as-applied constitutional challenges are distinct
actions, it is not unreasonable to treat the two types of challenges differently ***.
By definition, an as-applied constitutional challenge is dependent on the particular
circumstances and facts of the individual defendant or petitioner. Therefore, it is
paramount that the record be sufficiently developed in terms of those facts and
circumstances for purposes of appellate review.” [CITATION]
- 33 - 1-23-1008
, ¶¶ 29-30, overruled on other grounds by [CITATION]
, ¶ 42.
¶ 75 In Travis, the court held that it could review an as applied challenge on appeal if the
record was sufficiently developed. The court found that the “[d]efendant concedes he did not
raise the issue previously but argues the record is sufficiently developed for us to review his
claim, and upon review of the record, we agree. See [CITATION], ¶¶ 29-32,
overruled on other grounds by [CITATION], ¶ 42 (finding where all relevant facts
and circumstances are contained in the record, a claim may be raised and reviewed on appeal).”
[**TARGET CITATION**], ¶ 17. Similarly, here, defendant’s criminal history is
undisputed and it is unclear how further investigation into whether defendant is a “violent” felon
“would aid us in determining whether the felon dispossession statutes have been constitutionally
applied to defendant” where the second amendment, article I, section 22, nor the AHC statute
draw any distinction between “violent” felonies and “nonviolent” felonies. See id. ¶ 18.
¶ 76 Although the State argues defendant forfeited his as-applied challenge by failing to raise
it in the trial court, we find that the record is sufficiently developed for this court to address the
challenge. Id. ¶ 17. Therefore, we begin with defendant’s as-applied challenge because if the
statute is constitutional as applied to defendant then there is necessarily a set of facts under
which the statute is constitutional. See [CITATION], ¶ 14.
¶ 77 Defendant argues the AHC statute violates the second amendment under the test
announced by the United States Supreme Court in [CITATION], 597 U.S. 1 (2022). In
[CITATION], the Supreme Court announced a two-part test to determine whether
statutes that regulate the right to keep and bear arms violate the second amendment. [CITATION],
597 U.S. at 24. Post-[CITATION], “the standard for applying the Second Amendment is as follows: When
- 34 - 1-23-1008
the Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” [CITATION].
To determine whether a regulation is “consistent with the Nation’s historical tradition of firearm
regulation,”
“[a] court must ascertain whether the new law is ‘relevantly similar’ to
laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance
struck by the founding generation to modern circumstances.’ [CITATION.] ***
Why and how the regulation burdens the right are central to this inquiry.
[CITATION.] For example, if laws at the founding regulated firearm use to address
particular problems, that will be a strong indicator that contemporary laws
imposing similar restrictions for similar reasons fall within a permissible category
of regulations. Even when a law regulates arms-bearing for a permissible reason,
though, it may not be compatible with the right if it does so to an extent beyond
what was done at the founding. And when a challenged regulation does not
precisely match its historical precursors, ‘it still may be analogous enough to pass
constitutional muster.’ [CITATION.] The law must comport with the principles
underlying the Second Amendment, but it need not be a ‘dead ringer’ or a
‘historical twin.’ [CITATION.]” [CITATION].
¶ 78 The first step of the Bruen test, whether the second amendment’s “plain text covers an
individual’s conduct,” requires “a ‘textual analysis’ focused on the ‘ “normal and ordinary” ’
meaning of the Second Amendment’s language.” [CITATION]). That analysis by the Supreme Court found
that the second amendment protects “law-abiding citizens.” [CITATION] (“For most
of our history, the Bill of Rights was not thought applicable to the States, and the Federal
Government did not significantly regulate the possession of firearms by law-abiding citizens.”),
see also [CITATION] (Stevens, J., joined by Souter, J., Ginsburg, J., and Breyer, J.,
dissenting) (“when it finally drills down on the substantive meaning of the Second Amendment,
the Court limits the protected class to ‘law-abiding, responsible citizens’ ”), [CITATION] (Alito, J., concurring) (“[CITATION] correctly recognized that the Second Amendment codifies the
right of ordinary law-abiding Americans to protect themselves from lethal violence by
possessing and, if necessary, using a gun.”).
¶ 79 [CITATION] did not disturb that conclusion. [CITATION] (Alito, J., concurring) (“Our
holding decides nothing about who may lawfully possess a firearm or the requirements that must
be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may
possess. Nor have we disturbed anything that we said in [CITATION] or [CITATION],
about restrictions that may be imposed on the possession or carrying of guns.”). In
[CITATION] and [CITATION] the Supreme Court held that states may restrict felons from possessing
firearms. [CITATION] (“nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons”), [CITATION]
(“We made it clear in [CITATION] that our holding did not cast doubt on such longstanding regulatory
measures as ‘prohibitions on the possession of firearms by felons ***.’ [CITATION.] We repeat
those assurances here.”).
¶ 80 In this case defendant argues that there is no historical analogue for a permanent, status-
based revocation of the right to keep and bear arms applicable to felons and therefore the AHC
- 36 - 1-23-1008
statute is not consistent with the Nation’s historical tradition of firearm regulation. This is, of
course, an argument that the AHC statute does not pass constitutional muster under the second
step of the Bruen analysis. Defendant admits that “[t]o evaluate the constitutionality of Illinois’
[AHC] statute this Court must answer two questions: (1) whether [defendant] falls within the
Second Amendment’s protections at all, and (2) if he does, whether the historical record justifies
a permanent ban on his ability to possess any firearm at any time.” (Emphasis added.) As for the
first question, defendant argues he is protected by the second amendment because it applies to
“all Americans.” Defendant cites [CITATION], for the
proposition that a felon’s possession of a firearm falls under the conduct protected by the second
amendment because, defendant argues, pursuant to [CITATION], “a felon’s status is irrelevant under
the first step of the Bruen test.” Defendant essentially argues that [CITATION] confirms that Bruen
abrogated any presumption that barring felons from possessing firearms is permissible under the
second amendment because Bruen and [CITATION] place the focus of the first step of the analysis on
conduct—the conduct of possessing a firearm—and not status—in this case the status of being a
felon.
¶ 81 We reject defendant’s assertion that his conduct is protected by the second amendment
and we disagree with the suggestion that a party’s status as a felon is “irrelevant at this stage of
the analysis.” [CITATION], ¶ 89. The [CITATION] court found that the conduct
at issue was “the defendant’s possession of the firearm after having been twice convicted under
any of the myriad of enumerated felonies [in the AHC statute], which in this case, both happen to
be nonviolent.” [CITATION], ¶ 86. Nonetheless, the court found that
“[u]nder Bruen, the first step asks only whether ‘the Second Amendment’s plain
text covers an individual’s conduct.’ [Citation.] This step does not contemplate
[SEGMENT 27]
- 37 - 1-23-1008
the actor or the subject. [Citations.] Accordingly, the defendant’s status as a felon
is irrelevant at this stage of the analysis. Instead, the defendant’s possession of a
firearm is ‘presumptively constitutional.’ [CITATION.]” Id.
We disagree.
¶ 82 Under [CITATION], the first step looks at the conduct actually being regulated:
“At the first step, the government may justify its regulation by
‘establish[ing] that the challenged law regulates activity falling outside the scope
of the right as originally understood.’ [CITATION.] The Courts of Appeals then
ascertain the original scope of the right based on its historical meaning.
[CITATION.]” (Emphases added.) [CITATION], at 18.
This court has recognized that “[f]irst, we must identify the conduct at issue to determine
whether that conduct falls under the ‘plain text’ of the second amendment.” [CITATION].
The conduct at issue under the AHC statute is not, broadly and
generally, possession of a firearm. If it was, it would probably be unconstitutional. [CITATION], at 71 (“New York’s proper-cause requirement violates the Fourteenth Amendment in that it
prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep
and bear arms.”). Rather, the conduct at issue under the AHC statute is the possession of firearms
by felons. “If the government can prove that the regulated conduct falls beyond the
Amendment’s original scope, ‘then the analysis can stop there; the regulated activity is
categorically unprotected.’ [CITATION.]” (Emphases added.) [CITATION], at 18.
¶ 83 In [CITATION], the Supreme Court’s first word was that it had “recognized that the Second and
Fourteenth Amendments protect the right of an ordinary, law-abiding citizens to possess a
- 38 -
====== End of Part of a Court Ruling ====== 1-23-1008
handgun in the home for self-defense.” [CITATION]
“Though the Bruen Court did not define ‘law-abiding citizen,’ previous
Supreme Court precedent identifies categories of people who have long been
lawfully prevented from bearing arms. In [CITATION], the
Supreme Court cautioned that
‘nothing in [its] opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of
arms.’ [CITATION]
There is little to expound here: by its plain language, the Supreme
Court explicitly sanctioned the prohibition on the possession of firearms by
felons.” [CITATION], ¶ 17.
¶ 84 Further, the second amendment “does not distinguish between violent felonies and non-
violent felonies.” [CITATION] In [CITATION], ¶ 37, the court held:
“Under the AHC and UUWF statutes, both of which are facially
constitutional, defendant is prohibited from possessing a firearm due to his status
as a felon, irrespective of the violent or nonviolent nature of his convictions. We
- 39 - 1-23-1008
decline to invade the province of the legislature to determine which convictions
warrant a loss of rights.” [CITATION], ¶ 37.
see also [CITATION], ¶ 15 (“defendant’s previous felony
convictions make him not a law-abiding citizen and, therefore, not protected by the second
amendment. By incurring a felony conviction, even a nonviolent felony conviction, a citizen
forever loses the constitutional right to have a firearm for the defense of his person and his
house”), [CITATION], ¶ 19 (rejecting the defendant’s
request for the court to “interpret ‘law-abiding citizens’ to include those who had been convicted
of nonviolent felonies”), [CITATION], ¶ 21 (citing [CITATION], ¶ 100). Thus, the constitutionality of disarming felons extends to nonviolent
felons.
¶ 85 We find that the regulated conduct under the AHC statute “falls beyond the
Amendment’s original scope” because the scope of the second amendment reaches only “law-
abiding citizens.” [CITATION] (“It is undisputed that petitioners Koch and Nash—
two ordinary, law-abiding, adult citizens—are part of ‘the people’ whom the Second Amendment
protects.”), [CITATION], ¶ 37 (“The Bruen Court could not have
been more clear that its newly announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like defendant.”), [CITATION], ¶ 54 (“Bruen limits the second amendment’s scope to (1) citizens who are (2) law-
abiding and (3) responsible, and (4) who use firearms for self-defense.”), [CITATION], ¶¶ 18-23. Defendant, a twice-convicted felon, is not a law-abiding citizen.
¶ 86 This conclusion is not “defeated by Rahimi,” as defendant suggests. In Rahimi, the
Supreme Court addressed the constitutionality under the second amendment of a statute that
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“prohibits an individual subject to a domestic violence restraining order from possessing a
firearm if that order includes a finding that he ‘represents a credible threat to the physical safety
of [an] intimate partner,’ or a child of the partner or individual.” [CITATION]. The
Court rejected the Government’s argument that Rahimi could be disarmed “simply because he is
not ‘responsible.’ ” Id. at 1903. The Court found that the term “responsible” is vague and that
“[i]t is unclear what such a rule would entail.” Id.
¶ 87 Although the Court “used the term ‘responsible’ to describe the class of ordinary citizens
who undoubtedly enjoy the Second Amendment right” the Court “did not define the term and
said nothing about the status of citizens who were not ‘responsible.’ ” But we do not find, despite
what defendant claims about the State’s argument, that defendant is not someone to whom the
second amendment applies because he is not “responsible.” The second amendment does not
protect defendant’s right to possess a firearm because he is not a law-abiding citizen.
¶ 88 Defendant cites a dissent in [CITATION] in an attempt to refute “the ‘law abiding *** citizen’
test.” The dissenting justice wrote:
“At the outset of this case, the Government contended that the Court has
already held the Second Amendment protects only ‘responsible, law-abiding’
citizens. [Citation.] The plain text of the Second Amendment quashes this
argument. The Amendment recognizes ‘the right of the people to keep and bear
Arms.’ (Emphasis added.) When the Constitution refers to ‘the people,’ the term
‘unambiguously refers to all members of the political community.’ ” [CITATION] (Thomas, J., dissenting).
We reject the dissent’s contention that the second amendment protects anyone other than “law
abiding citizens.” See Baker, 2023 IL App (1st) 220328, ¶ 37 (“The Bruen Court could not have
- 41 - 1-23-1008
been more clear that its newly announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like defendant.”).
¶ 89 Statutes prohibiting felons, including nonviolent felons, from possessing firearms are
presumptively constitutional. [CITATION] (“Heller never established a categorical
rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact,
our opinion stated that many such prohibitions, like those on the possession of firearms by
‘felons and the mentally ill,’ are ‘presumptively lawful.’ ”). Therefore, the analysis stops here
[CITATION]; the AHC statute is constitutional under the second amendment as
applied to defendant—a twice convicted felon—and, necessarily, it is also facially constitutional
[CITATION].
¶ 90 CONSTITUTIONALITY OF AHC UNDER ARTICL I, SECTION 22
¶ 91 Defendant argues the AHC statute is unconstitutional on its face and as applied to
defendant under article I, section 22 of the Illinois constitution. Article I, section 22, reads as
follows: “Subject only to the police power, the right of the individual citizen to keep and bear
arms shall not be infringed.” Ill. Const. art. I, § 22. Defendant argues that by conferring the right
to keep and bear arms on “the individual citizen” rather than “the People” (compare U.S. Const.
amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.”)), the right to keep and bear arms
under the Illinois constitution is broader than under the second amendment and protects a
broader class of individuals, including those “with a legal status that might otherwise place them
outside the political community,” that includes defendant “as an ‘individual citizen’ of this
[SEGMENT 28]
State.”
- 42 - 1-23-1008
¶ 92 Defendant also argues that the prefatory language “[s]ubject only to the police power”
does not narrow defendant’s right so as to permit permanent felon dispossession. Defendant
argues that the record of the Constitutional Convention shows that the delegates were concerned
with regulating “certain types of arms under the police power, not certain categories of people.”
To the extent the delegates expressed concern about those who committed crimes possessing
firearms, the comments reveal a greater concern for “felony convictions that revealed a tendency
for violence,” and those comments “have to be read consistently with the felon dispossession
laws in effect at the time.” Defendant argues that at the time of the convention there was no law
permanently dispossessing felons of firearms, therefore, the language “[s]ubject to the police
power” “cannot be read to countenance permanent felon dispossession.” As applied to defendant,
defendant argues that “because [defendant] was not using the gun in a dangerous way, nor were
his prior convictions violent, the Illinois Constitution as applied to [defendant] does not preclude
his possessing a gun.”
¶ 93 The State responds that assuming arguendo that article I, section 22, does embrace
defendant regardless of his felon status, the AHC statute is a proper exercise of the police power.
In apparent response to defendant’s argument that the meaning of “the police power” in article I,
section 22, is only the power to restrict violent felons’ possession of firearms temporarily, the
State argues that, as explained in [CITATION], ¶ 41, our supreme
court in [CITATION], “recognized that
Illinois’ police power was ‘intended to provide an “extraordinary degree of control” over the
possession of firearms’ and allows laws ‘restraining or prohibiting anything harmful to the
welfare of the people.’ [CITATION.]” The State argues that this court may not overrule that finding
by our supreme court.
- 43 - 1-23-1008
¶ 94 In Kalodimos, a village ordinance completely banned the possession of all operable
handguns with limited exceptions. [CITATION]. Our supreme court had to
decide the scope of article I, section 22, and whether the ordinance “passes muster under it.” [CITATION].
The court found that the difference in the language in article I, section 22 from the language in
the second amendment “were intended to broaden the scope of the right to arms from a collective
one applicable only to weapons traditionally used by a regulated militia [citation], to an
individual right covering a wider variety of arms.” [CITATION]. However, “the explicit recognition
of ‘the police power’ [is] a limitation on the liberty the provision affords.” [CITATION]. Based on the
report of The Bill of Rights Committee at the Constitutional Convention, our supreme court
recognized that “the possession and use of arms is subject to an extraordinary degree of control
under the police power.” (Internal quotation marks omitted.) [CITATION]. The committee report
described regulatory measures “that had been approved in other States as not infringing on
individual right to arms” including “a total prohibition of ‘the sale of some weapons in some
circumstances.’ ” [CITATION].
¶ 95 Our supreme court acknowledged, similarly to defendant’s argument in this case, that
"[t]he meaning of a constitutional provision depends, of course, on the common understanding of
the citizens who, by ratifying the Constitution, gave it life.” [CITATION]. However, the court also
found (and defendant did not address) that “[t]his understanding *** is best determined by
referring to the common meaning of the words used.” [CITATION]. Our supreme court found
that the plain language of article I, section 22, “leaves the right to bear any type of arms subject
to the police power” and “belied any assertion that a majority of the voters must have interpreted
the plain words of the provision as ruling out any specific regulatory measure.” [CITATION]. “The
official explanation which all voters received also left considerable leeway for regulation of guns
- 44 - 1-23-1008
by stating that under section 22 ‘the right of the citizen to keep and bear arms cannot be
infringed, except as the exercise of this right may be regulated by appropriate laws to safeguard
the welfare of the community.’ [CITATION].” Id. The court found that this interpretation is
“consistent with the interpretation of the provision advanced by the delegates who voted to adopt
it.” Id. In rejecting an argument that the “police power” in article I, section 22 permitted the
regulation of all classes of firearms but not a complete prohibition of any class of firearm, our
supreme court stated that it “has long recognized that the police power comprehends laws
‘restraining or prohibiting anything harmful to the welfare of the people’ [CITATION] and no
convincing evidence has been produced that the voters ascribed a different meaning to the term
in the context of section 22.” (Emphasis added.) Id. at 496.
¶ 96 Because the issue in [CITATION] was a complete ban on handguns, our supreme court held
that, “[b]ased on the floor debates and the official explanation, as well as on the language of the
provision, it is apparent to us that section 22, as submitted to the voters, meant that a ban on all
firearms that an individual citizen might use would not be permissible, but a ban on discrete
categories of firearms, such as handguns, would be.” Id. at 498. Notably, the court rejected an
argument that “there is no principle which permits the complete abridgment of one form of
constitutionally protected behavior whenever other forms of behavior which enjoy the same form
of protection and lead to a substantially similar end are permitted.” (Emphasis added.) Id. at 499.
¶ 97 We interpret [CITATION] to mean the plain language of article I, section 22 does not rule
out a complete and permanent abridgment of possession of firearms by felons. The [CITATION]
court considered whether the ordinance at issue was a proper exercise of the police power.
Although a different statute is involved here, apropos of this case our supreme court found that
“the right to arms secured by the Illinois Constitution, which did not exist prior to 1970, is
- 45 - 1-23-1008
subject, as we have explained, to substantial infringement in the exercise of the police power
even though it operates on the individual level.” Id. at 509. Subsequently, the Third District of
this court held that “the AHC *** statute[ is] a proper exercise of the state’s police power, which
allows the state to exert, through legislation, control over the dangers posed by firearms and the
people who might use them to do harm.” [CITATION], ¶ 43.
¶ 98 We agree that the AHC statute is a proper exercise of the state’s police power that is
contemplated by the “grant [of] an ‘extraordinary degree of control’ over the use of firearms” in
article I, section 22. [CITATION], ¶ 42 (quoting [CITATION], 103 Ill. 2d at
491-92). To any extent [CITATION] might be read to hold the AHC statute is a proper exercise of the
state’s police power on violent felons, we disagree; and, regardless, the point of its holding is
that the police power “allows the state to exert, through legislation, control over the dangers
posed by firearms and the people who might use them to do harm.” [CITATION], ¶ 43. The legislature could prohibit felons from possessing firearms to safeguard the
welfare of the community. [CITATION], 2024 IL App (1st) 230569, ¶ 30 (“nothing in article I, section
22, of the Illinois Constitution suggests that the right to bear arms is unlimited and bars the State
from prohibiting felons from bearing arms.”), see also [CITATION], 2023 IL App (1st)
220959-U, ¶ 53 (UUWF “is a proper exercise of police power, and therefore defendant has not
shown that the statute violates the Illinois Constitution on its face or as applied to him.”).
¶ 99 The AHC statute is constitutional as applied to defendant and on its face under article I,
section 22, of the Illinois constitution.
¶ 100 CONCLUSION
¶ 101 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 102 Affirmed.
- 46 -
NOTICE
IL App (4th) 240315-U FILED
This Order was filed under September 3, 2024
Supreme Court Rule 23 and is NO. 4-24-0315 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Tazewell County
LUCAS S. THOMAS, ) No. 22CF538
Defendant-Appellant. )
) Honorable
) Christopher R. Doscotch,
) Judge Presiding.
[SEGMENT 29]
PRESIDING JUSTICE CAVANAGH delivered the judgment of the court.
Justices Steigmann and Grischow concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding the Illinois armed habitual criminal statute
does not violate the United States Constitution.
¶2 In November 2023, defendant, Lucas S. Thomas, was sentenced to 19 years’
imprisonment following his guilty plea to being an armed habitual criminal (720 ILCS
5/24-1.7(a) (West 2022)). On appeal, defendant argues the armed habitual criminal statute
violates the second amendment (U.S. Const., amend. II) on its face pursuant to the United States
Supreme Court’s decision in [CITATION]. We affirm.
¶3 I. BACKGROUND
¶4 In October 2022, the State charged defendant by indictment with (1) being an
armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2022)) for possessing a firearm after having been convicted of residential burglary in Woodford County case No. 08-CF-82 and
unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333; (2) unlawful
possession of a weapon by a felon ([CITATION]) for possessing said firearm after having been
convicted in Peoria County case No. 11-CF-333; (3) aggravated domestic battery ([CITATION])
for intentionally strangling a family or household member; (4) aggravated battery ([CITATION])
for holding a gun, a deadly weapon, to the head of another and thereby making
contact of an insulting or provoking nature; (5) domestic battery ([CITATION]) for causing
bodily harm by striking a family or household member; and (6) resisting a peace officer ([CITATION])
for refusing to place his hands behind his back, tensing up, and struggling with an
arresting officer, thereby causing the officer to be injured.
¶5 In July 2023, defendant entered into a partially negotiated plea agreement wherein
he pleaded guilty to the armed habitual criminal charge. In exchange, the State dismissed the
remaining charges, agreed not to file any uncharged pending cases against defendant, and agreed
not to refer any cases regarding defendant for federal prosecution. However, the State reserved
the right to utilize any uncharged conduct and the dismissed charges in aggravation at
sentencing. The State proffered a factual basis, citing defendant’s aforementioned felony
convictions from Woodford and Peoria counties. Following the issuance of a search warrant,
officers discovered a handgun in defendant’s bedroom. Additionally, a search of defendant’s
phone revealed a photograph of him holding said handgun. The trial court accepted defendant’s
plea as knowing and voluntary.
¶6 A sentencing hearing was held in November 2023. A presentence investigation
report (PSI) was admitted without objection. According to the PSI, defendant had been convicted
of residential burglary in 2008 and twice convicted of unlawful possession of a weapon by a
felon in 2011 and 2015, respectively.
¶7 The State introduced into evidence the video showing defendant’s arrest and the
recovery of the firearm and the testimony of detective Robert Vester of the East Peoria Police
Department. Vester testified, among other things, to discovering the firearm in defendant’s
bedroom, to investigating defendant for selling stolen all-terrain vehicles, and that, according to
defendant, he had purchased the firearm at issue in St. Louis, Missouri, for self-defense.
¶8 Defendant presented letters from family and friends in mitigation. A neighbor and
friend testified defendant was not a violent person and only obtained the firearm for self-defense.
¶9 Defendant gave a statement in allocution wherein he acknowledged his mistake in
purchasing the firearm. He argued a convicted felon should not lose his rights under the second
amendment and contended he never used or brandished the firearm but was the victim of two
other individuals threatening him with a firearm.
¶ 10 The trial court considered the PSI, evidence presented in aggravation and
mitigation, defendant’s statement in allocution, arguments from the parties, the statutory and
nonstatutory factors in aggravation and mitigation, the history and character of defendant, and
the seriousness of the offense in light of the objective of restoring defendant to useful citizenship.
The court noted the firearm had a “40-round extended clip” and a “green laser tag site,”—
characteristics typically not found on a weapon used merely for self-defense. Defendant
interjected that those items came with the weapon when he bought it. The court rebutted that
defendant, nonetheless, bought it that way. The court sentenced defendant to 19 years’
imprisonment. Defendant filed a motion to reconsider sentence, arguing the court failed to
consider certain statutory factors in mitigation and that his sentence was excessive. The court
denied the motion.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 Defendant claims the armed habitual criminal statute is unconstitutional on its
face as violative of the second amendment. See [CITATION], ¶ 49 (“Defendants
convicted under a facially unconstitutional statute may challenge the conviction at any time, even
after a guilty plea, because the state or government had no power to impose the conviction to
begin with.”). We disagree. The Criminal Code of 2012 (Code) (720 ILCS 5/1-1 et seq. (West
2022)) provides as follows:
“(a) A person commits the offense of being an armed habitual criminal if
he or she receives, sells, possess, or transfers any firearm after having been
convicted a total of 2 or more times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use
of a weapon; aggravated discharge of a firearm; vehicular hijacking;
aggravated vehicular hijacking; aggravated battery of a child as described
in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05; intimidation;
aggravated intimidation; gunrunning; home invasion; or aggravated
battery with a firearm as described in Section 12-4.2 or subdivision (e)(1),
(e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled substances Act or the
Cannabis Control Act that is punishable as a Class 3 felony or higher.”
ILCS 5/24-1.7 (West 2022).
¶ 14 Accordingly, defendant’s stipulated convictions of residential burglary (a forcible
felony pursuant to section 2-8 of the Code (id. § 2-8)) in Woodford County case No. 08-CF-82
and unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333 were
qualifying convictions under the armed habitual criminal statute.
¶ 15 Defendant relies on the United States Supreme Court’s decision in [CITATION]. In
[CITATION], the Supreme Court held, “When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that conduct,” and the government
“must then justify its regulation by demonstrating that [the regulation] is consistent with the
Nation’s historical tradition of firearm regulation.” [CITATION], 597 U.S. at 24 (2022).
¶ 16 In response to defendant’s facial challenge, the State cites numerous appellate
court decisions relevant to the issue on appeal: [CITATION],
¶¶ 37-39 (finding [CITATION] did not apply to the defendant’s as applied constitutional challenge
under the second amendment of the unlawful use of a weapon by a felon statute); [CITATION],
¶¶ 14-22 (finding the armed habitual criminal statute did not
violate the second amendment pursuant to [CITATION],
¶¶ 19-29 (finding [CITATION] did not apply to the defendant’s as applied challenge to the unlawful
possession of a weapon by a felon statute); [CITATION],
¶¶ 143-158 (finding [CITATION] did not apply to the defendant’s as applied challenge to the unlawful
possession of a weapon by a felon statute); [CITATION],
¶¶ 51-60 (finding the armed habitual criminal statute did not violate the second amendment
pursuant to Bruen); [CITATION], ¶¶ 18-22 (finding the firearm
owner’s identification card requirement constitutional post-Bruen); [CITATION], ¶¶ 11-16 (finding Bruen did not apply to the defendant’s facial
constitutional challenge under the second amendment of the unlawful use of a weapon by a felon
statute).
¶ 17 Defendant counters that the cases cited by the State were wrongly decided and
notes the appellate court in [CITATION], and [CITATION],
found the second amendment’s plain language presumptively
protected convicted felons. Furthermore, the cases cited by the State were all decided without the
benefit of the Supreme Court’s decision in [CITATION].
¶ 18 In Brooks, the defendant was convicted of being an armed habitual criminal.
[CITATION], ¶ 1. On appeal, the defendant contended the armed habitual
criminal statute as applied to him “impermissibly criminalized his simple possession of a firearm
[SEGMENT 30]
exclusively on the basis of his two prior nonviolent felony convictions.” Id. ¶ 55. Following the
framework from Bruen, the court in [CITATION] first considered whether the plain language of the
second amendment protected the defendant’s right to keep and bear arms. Id. ¶¶ 69, 79-87. The
[CITATION] concluded the defendant had been convicted under the armed habitual criminal
statute for possessing a firearm after having been twice convicted of two nonviolent felonies. Id.
¶ 86. After observing the Supreme Court, in [CITATION], held “to keep arms” simply meant to “have weapons,” the [CITATION] reasoned to
“have,” defined as “to be in possession of,” meant the second amendment’s plain language
presumptively protected the defendant’s conduct of possessing a firearm. (Internal quotation
====== End of Ruling ====== marks omitted.) [CITATION] The court then went on to determine
the armed habitual criminal statute was consistent with the nation’s tradition of firearm
regulation. [CITATION]
¶ 19 The court in Travis, adopted the reasoning in [CITATION] and found “the second
amendment’s plain language does not exclude felons.” [CITATION]
Similarly, the Travis court also concluded the armed habitual criminal statute was consistent with
the nation’s tradition of firearm regulation. [CITATION]
¶ 20 In Rahimi, the defendant was charged with possessing a firearm while subject to a
domestic violence restraining order. [CITATION] The court noted,
where “a restraining order contains a finding that an individual poses a credible threat to the
physical safety of an intimate partner, that individual may—consistent with the Second
Amendment—be banned from possessing firearms while the order is in effect.” [CITATION]
Moreover, “our Nation’s firearm laws have included provisions preventing individuals who
threaten physical harm to others from misusing firearms.” [CITATION] The court went on to clarify that
“the Second Amendment permits more than just those regulations identical to ones that could be
found in 1791.” [CITATION] “A court must ascertain whether the new law is ‘relevantly
similar’ to laws that our tradition is understood to permit.” [CITATION] The Rahimi court rejected
the notion that the defendant could be disarmed “simply because he is not ‘responsible.’ ” [CITATION] The court noted that the Heller and Bruen decisions had used the term “responsible” to
“describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right,”
but the term was never defined to reveal those who would be considered “not ‘responsible.’ ” [CITATION]
¶ 21 In essence, defendant asks that we, like the courts in [CITATION] and Travis, find his
mere possession of a firearm was presumptively protected by the second amendment. Then,
unlike in Brooks and [CITATION], but following guidance from Rahimi, he asks us to find the armed
habitual criminal statute is inconsistent with the nation’s tradition of firearm regulation, and,
thus, unconstitutional. For the reasons that follow, we are unpersuaded by defendant’s arguments
on appeal. See [CITATION]
¶ 22 This court, in [CITATION], stated:
“ ‘The constitutionality of a statute is analyzed under well-settled
principles. Statutes are presumed constitutional, and to rebut that presumption, the
party challenging a statute’s constitutionality has the burden of establishing a
clear violation. [Citation.] A party raising a facial challenge to a statute faces a
particularly heavy burden. [Citation.] A statute will be deemed facially
unconstitutional only if there is no set of circumstances under which the statute
would be valid. [Citation.] The particular facts related to the challenging party are
irrelevant. [Citation.] If it is reasonably possible to construe the statute in a way
that preserves its constitutionality, we must do so.’ ” (quoting [CITATION]).
¶ 23 In [CITATION], we cited [CITATION] for the proposition that
“[t]he Bruen Court could not have been more clear that its newly announced test applied only to
laws that attempted to regulate the gun possession of law-abiding citizens, and not felons like
[the] defendant.” (Internal quotation marks omitted.) [CITATION].
Bruen specifically upheld an earlier statement from Heller that courts should not “ ‘cast doubt on
longstanding prohibitions on the possession of firearms by felons.’ ” Bruen, 597 U.S. at 81
(Kavanaugh, J., concurring, joined by Roberts, C.J.) (quoting [CITATION]). We find
nothing in defendant’s arguments that would persuade us to believe that previous decisions—
including our own—finding Bruen does not apply to felons were incorrect. As a convicted felon,
Bruen does not apply to defendant. See, e.g., [CITATION], ¶ 15.
¶ 24 Additionally, Rahimi does not help defendant here because as the Supreme Court
explained, “[CITATION] never established a categorical rule that the Constitution prohibits regulations
that forbid firearm possession in the home. In fact, our opinion stated that many such
prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are
‘presumptively lawful.’ ” [CITATION], 144 S. Ct. at 1902 (quoting [CITATION]). Thus, Rahimi does not support the proposition defendant propounds that he is
presumptively protected under the second amendment; to the contrary, the armed habitual
criminal statute prohibiting defendant, a convicted felon, from possessing a firearm is
presumptively lawful. Id. Accordingly, defendant has failed to show the armed habitual criminal
statue is facially unconstitutional.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the trial court’s judgment.
¶ 27 Affirmed.
```plaintext
2024 IL App (1st) 230428-U
No. 1-23-0428
Order filed July 8, 2024.
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 55380
)
CODY WRIGHT, ) The Honorable
) Laura Ayala-Gonzalez,
Defendant-Appellant. ) Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Coghlan concurred in the judgment.
ORDER
¶1 Held: The circuit court’s denial of defendant’s petition for relief from judgment is
affirmed over his argument that the unlawful use or possession of a weapon by a
felon statute (720 ILCS 5/24-1.1(a) (West 2008)) is facially unconstitutional under
the second amendment and the Illinois Constitution.
¶2 Defendant Cody Wright appeals from the circuit court’s order dismissing his petition for
relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1401 (West 2022)). He argues that his conviction for unlawful use or possession of a
``` No. 1-23-0428
weapon by a felon (UUWF) is void because the statute governing the offense (720 ILCS 5/24-
1.1(a) (West 2008)) is facially unconstitutional under the United States and Illinois Constitutions.
For the following reasons, we affirm.
¶3 On November 19, 2008, defendant entered a negotiated guilty plea to one count of UUWF
in exchange for three years’ imprisonment and the nolle prosequi of other charges. He did not
move to withdraw his plea or file a direct appeal.
¶4 On December 20, 2022, defendant filed a pro se petition for relief from judgment pursuant
to section 2-1401 of the Code. He contended the UUWF statute was unconstitutional pursuant to
[CITATION], and [CITATION], and his 2008
conviction was therefore invalid and should be vacated.
¶5 On February 6, 2023, the circuit court denied defendant’s petition, stating [CITATION] did not
apply to defendant’s UUWF offense. Defendant filed a timely appeal.
¶6 On appeal, defendant requests we vacate his conviction because, in light of [CITATION],
the UUWF statute under which he was
convicted is facially unconstitutional under the second amendment to the United States
Constitution (U.S. Const., amend. II) and Article I, section 22 of the Illinois Constitution (Ill.
Const. 1970, art. I, § 22).
¶7 Section 2-1401 of the Code provides a statutory procedure by which final judgments may
be vacated more than 30 days after entry. 735 ILCS 5/2-1401(a) (West 2022); [CITATION], ¶ 18. Generally, a petition under section 2-1401 must be filed within two years
[SEGMENT 31]
of judgment. 735 ILCS 5/2-1401(c) (West 2022). However, the time limit does not apply when a
defendant alleges his conviction or sentence is based on a facially unconstitutional statute and is
No. 1-23-0428
therefore void ab initio. See [CITATION], ¶¶ 27-28. We review de novo a denial of a
section 2-1401 petition on legal grounds. [CITATION], ¶ 13. We also
review de novo the constitutionality of a statute, a question of law. [CITATION], ¶ 9 (citing [CITATION], ¶ 26).
¶8 Initially, the State responds that defendant has waived any challenge to his conviction by
pleading guilty and failing to move to withdraw his plea or pursue a direct appeal. The State is
correct that a valid guilty plea generally waives all non-jurisdictional defects, including
constitutional ones. [CITATION], ¶ 20. However, a guilty plea does not
preclude a defendant from arguing that a statute is facially unconstitutional and void ab initio, a
challenge that may be raised “at any time.” [CITATION], 542-43 (2005) (on
direct appeal, defendant could argue he was sentenced under an unconstitutional statute despite
pleading guilty and not making the argument in his motion to withdraw his plea); see also [CITATION], ¶¶ 8-10 (citing Guevara and finding on appeal from
dismissal of section 2-1401 petition that the defendant’s guilty plea did not waive his argument
that he was convicted under facially unconstitutional statute). 1 Thus, we will consider the merits
of defendant’s argument.
¶9 Section 24-1.1(a) of the Criminal Code of 1961, under which defendant was convicted of
UUWF, provides:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
Nonprecedential orders entered under Supreme Court Rule 23(b) after January 1, 2021, may be
cited for persuasive purposes. See Ill. S. Ct. R. 23(b), (e)(1) (eff. Feb. 1, 2023).
No. 1-23-0428
-1 of [the Criminal Code of 1961] or any firearm or any firearm ammunition if the person
has been convicted of a felony under the laws of this State or any other jurisdiction. This
Section shall not apply if the person has been granted relief by the Director of the
Department of State Police under Section 10 of the Firearm Owners Identification Card
Act.” 720 ILCS 5/24-1.1(a) (West 2008).
¶ 10 Defendant argues that the statute is unconstitutional under the second amendment on its
face. Facial challenges are “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional, and to rebut that presumption and show a statute is facially
unconstitutional, a party must establish that there are no circumstances under which the statute
could be validly applied. [CITATION], ¶ 10. “If it is reasonably possible
to construe the statute in a way that preserves its constitutionality, we must do so.” Id.
¶ 11 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION],
in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” [CITATION]. In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION]. The Court
reiterated that its decision in [CITATION] “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” Id. at 786 (quoting [CITATION] at
626-27).
No. 1-23-0428
¶ 12 Following Heller and McDonald, courts developed a two-step test for evaluating second
amendment challenges to firearm regulations. See [CITATION]. The first
step was considering whether the regulated activity fell within the scope of the second amendment
as it was originally understood. Id. If the government did not show the regulated activity was
outside the scope of the second amendment, the second step was conducting a “means-end
analysis.” (Internal quotation marks omitted.) Id. In that analysis, courts weighed the severity of
the regulation against the ends the government sought to achieve in enacting the regulation. Id.
¶ 13 However, in 2022 the Supreme Court issued Bruen, in which it announced a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]). The Court condemned the means-end analysis. Id. (citing [CITATION]).
Rather, under Bruen, where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
second amendment to mean. [CITATION].
¶ 14 Here, defendant claims that the conduct prohibited by the UUWF statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
protected. We disagree. Bruen did not provide that the second amendment granted an unrestricted
right to carry firearms. Rather, it explained that:
No. 1-23-0428
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [Citation.] Those
restrictions, for example, limited the intent for which one could carry arms, the manner by
which one carried arms, or the exceptional circumstances under which one could not carry
arms, such as before justices of the peace and other government officials.” [CITATION] at 70.
¶ 15 In [CITATION], and [CITATION], the Supreme Court established that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] at 8-10 (agreeing
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also [CITATION] at 635 (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); [CITATION] at
786 (reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
¶ 16 In two recent cases we rejected as-applied constitutional challenges to the UUWF statute
on that basis, concluding that [CITATION] did not apply to laws that attempted to regulate firearm
possession by felons. See [CITATION], 2023 IL App (1st) 220328, ¶ 37 (noting that the justices
in the [CITATION] majority repeated the phrase “law-abiding” 18 times in their majority opinion and
concurrences); [CITATION], 2023 IL App (1st) 221264, ¶¶ 27-28 (agreeing with [CITATION] and
noting that [CITATION] suggested that felons did not maintain second amendment rights). As we held
that the UUWF statute could be validly applied to the defendants in [CITATION] and [CITATION], defendant’s
facial challenge to the statute must fail. See [CITATION], 2021 IL 125889, ¶ 10 (a statute is only
facially unconstitutional if there are no circumstances under which it could be validly applied); see
No. 1-23-0428
also [CITATION], ¶¶ 18-22 (following Baker to reject facial
challenge to UUWF statute).
¶ 17 Defendant requests we depart from our holdings in [CITATION] and [CITATION] and instead follow
the reasoning in [CITATION], ¶¶ 88-89, which rejected the argument that
the second amendment did not protect the conduct of possessing a firearm after being convicted
of a felony. We decline defendant’s invitation to do so. That said, even were we to depart from the
holdings in [CITATION] and [CITATION], we would still find defendant’s facial challenge unavailing under
the next step provided by Bruen, as there is sufficient historical precedent to ban felons from
possessing firearms.
¶ 18 Another district of this court recently considered and rejected a defendant’s facial challenge
to the UUWF statute under the second step of the Bruen analysis. [CITATION]. In [CITATION], the court reiterated that the Supreme Court in Heller and Bruen explained
[SEGMENT 32]
“the right to bear arms has never been unlimited,” but “ ‘[t]hroughout modern Anglo-American
history,’ ” had been “ ‘subject to well-defined restrictions.’ ” Id. ¶ 27 (quoting Bruen, 597 U.S. at
38). Further, although felons were not broadly prohibited from possessing firearms until the
twentieth century, “such laws evolved from preexisting prohibitions restricting access to firearms,”
including by certain groups of people. Id. ¶¶ 28-29. In colonial America, for example, legislatures
“ ‘disarm[ed] individuals whose status indicated that they could not be trusted to obey the law.’ ”
Id. ¶¶ 30-31 (quoting [CITATION], ¶ 94). In [CITATION], the court therefore
concluded that, under Bruen, there was sufficient historical precedent to make the UUWF statute
facially constitutional, which it also noted had almost no effect on any law-abiding citizen’s right
to armed self-defense. Id. ¶¶ 32-33.
No. 1-23-0428
¶ 19 We also find instruction in [CITATION], in which we considered an as-applied constitutional
challenge under Bruen to the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2016)
(criminalizing possession of firearms after twice being convicted of certain felonies)). [CITATION]. In [CITATION], after concluding that the second amendment
encompassed the conduct at issue, we found that the legislature’s ability to prohibit possession of
firearms by twice-convicted felons was consistent with the national historical tradition of firearm
regulation. [CITATION]. The historical analogues included “widespread acceptance of the
legislatures’ authority to disarm felons” during the founders’ era. [CITATION].
¶ 20 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
is wrongly decided.2 We decline to revisit [CITATION] here. Rather, we will follow [CITATION], and [CITATION] and reject defendant’s facial challenge to the UUWF statute under the second
amendment.
¶ 21 Defendant next claims that, even if the UUWF statute comports with the second
amendment, it is facially unconstitutional under Article I, section 22 of the Illinois Constitution
(Ill. Const. 1970, art. I, § 22). The courts in [CITATION] and [CITATION] also considered this argument, and
rejected it. [CITATION]. We do the same here.
¶ 22 Article I, section 22 provides that, “Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed.” Ill. Const. 1970, art. I, § 22.
Defendant notes our supreme court has stated that the phrase “the individual citizen” in that section
Defendant does not discuss [CITATION], which was decided on April 19, 2024, after defendant filed
his initial brief and the State filed its response brief, and shortly before defendant filed his reply brief on
April 30, 2024.
No. 1-23-0428
is broader than the second amendment’s phrase “the people.” (Internal quotation marks omitted.)
[CITATION]
¶ 23 However, the police power referenced in Article I, section 22 is “a limitation on the liberty
the provision affords.” Id. In [CITATION], our supreme court stated that the possession of firearms
under section 22 is “ ‘subject to an extraordinary degree of control under the police power’ ”
because firearms “ ‘pose an extraordinary threat to the safety and good order of society.’ ” Id. at
491-92 (quoting Report of the Bill of Rights Committee on the Preamble and Bill of Rights, 6
Record of Proceedings, Sixth Illinois Constitutional Convention 88 (1970)).
¶ 24 We have further recognized that “police power includes the power to regulate certain
aspects of gun possession and ownership.” [CITATION] ¶ 23
(citing McDonald, 561 U.S. at 786). And, as noted, the Supreme Court has explained that the right
of law-abiding citizens to use firearms “did not cast doubt on *** ‘prohibitions on the possession
of firearms by felons.’ ” McDonald, 561 U.S. at 786 (quoting Heller, 554 U.S. at 626-27).
Therefore, the UUWF statute is a proper exercise of police power and does not violate the Illinois
Constitution on its face. See [CITATION] (same).
¶ 25 In sum, section 24-1.1 of the Criminal Code of 1961 is not facially unconstitutional under
the second amendment or the Illinois Constitution. Therefore, the circuit court did not err in
dismissing defendant’s petition for relief from judgment.
¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 27 Affirmed.
====== End of the Part of the Court Ruling ======
2024 IL App (1st) 230968-U
No. 1-23-0968
Order filed July 8, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 3622
)
DASHAWN CARLDWELL, ) Honorable
) William G. Gamboney,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Justices Lavin and Coghlan concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for unlawful use or possession of a weapon by a
felon (UUWF) over his claim that the UUWF statute is facially unconstitutional
under the second amendment.
¶2 Following a bench trial, defendant Dashawn Carldwell was convicted of unlawful use or
possession of a weapon by a felon (UUWF) and sentenced to 4½ years’ imprisonment. On appeal,
he argues the UUWF statute under which he was convicted (720 ILCS 5/24-1.1(a) (West 2022)) No. 1-23-0968
is facially unconstitutional under the second amendment to the United States Constitution (U.S.
Const., amend. II). For the following reasons, we affirm.
¶3 Defendant was charged by indictment with, inter alia, UUWF based on knowingly
possessing a firearm after having previously been convicted of a felony.
¶4 At trial, Chicago police officer Isaiah Perez testified that, around 10:49 p.m. on March 7,
2022, he and two partners responded to a vehicle accident at the intersection of Division Street and
Cicero Avenue, in Chicago. He observed a crashed van at the north end of the intersection. As the
officers spoke to an occupant of the van, a woman approached and indicated that another vehicle
that had been involved in the accident was further north on Cicero. The officers drove north on
Cicero and Perez observed a crashed, unoccupied vehicle. A man approached and told the officers
that the person from that vehicle had run north on Cicero and then west on Potomac Avenue.
¶5 The officers drove to that area and Perez observed a man running north in an alley, “about
a street and a half” away from them. The officers drove into the alley and closed the distance.
When the officers were 100 to 300 feet from the man, he turned west into another alley. From 100
to 150 feet, Perez observed a dark, L-shaped object in the man’s hands that Perez believed was a
firearm. The man tossed the object over a fence. He continued running down the alley a short
distance, then stopped and raised his hands. The officers exited their vehicle and detained him.
Perez identified him in court as defendant. Officers ultimately recovered a loaded, black 9-
No. 1-23-0968
millimeter pistol from a backyard where Perez believed defendant had tossed the firearm. The
State published footage from Perez’s body-worn camera and he narrated the events depicted.1
¶6 The State entered stipulations that defendant had not been issued a valid firearm owner’s
identification card (FOID card) or concealed carry license (CCL), and he had previously been
convicted of a felony.
¶7 Following argument, the court found defendant guilty. The court denied defendant’s
motion for a new trial. Following a hearing, the court sentenced defendant to 4½ years’
imprisonment. The court denied defendant’s motion to reconsider the sentence.
¶8 On appeal, defendant argues that, in light of the United States Supreme Court’s decision in
[CITATION], the UUWF statute under which he was convicted is facially unconstitutional under the second amendment to the United States Constitution (U.S. Const., amend. II).
¶9 Whether a statute is constitutional is a question of law we review de novo. [CITATION].
[SEGMENT 33]
¶ 10 Section 24-1.1(a) of the Criminal Code of 2012 provides:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
-1 of [the Criminal Code of 2012] or any firearm or any firearm ammunition if the person
has been convicted of a felony under the laws of this State or any other jurisdiction. This
The record on appeal does not include the correct video. Regardless, the video would have no
effect on our disposition of this appeal as defendant’s lone argument is that the statute under which he was
convicted is facially unconstitutional, an issue for which “[t]he particular facts related to the challenging
party are irrelevant.” [CITATION].
No. 1-23-0968
Section shall not apply if the person has been granted relief by the Director of the Illinois
State Police under Section 10 of the Firearm Owners Identification Card Act.” 720 ILCS
/24-1.1(a) (West 2022).
¶ 11 Defendant argues that the statute is unconstitutional under the second amendment on its
face. Facial challenges are “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional, and to rebut that presumption and show a statute is facially
unconstitutional, a party must establish that there are no circumstances under which the statute
could be validly applied. [CITATION], ¶ 10. “If it is reasonably possible
to construe the statute in a way that preserves its constitutionality, we must do so.” Id. A defendant
may challenge the constitutionality of a statute at any time, even for the first time on appeal. See
[CITATION], ¶ 8.
¶ 12 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” [CITATION], 635 (2008). In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION], 742 (2010). The Court
reiterated that its decision in [CITATION] “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” Id. at 786 (quoting [CITATION] at
626-27).
No. 1-23-0968
¶ 13 Following Heller and McDonald, courts developed a two-step test for evaluating second
amendment challenges to firearm regulations. See [CITATION]. The first
step was considering whether the regulated activity fell within the scope of the second amendment
as it was originally understood. Id. If the government did not show the regulated activity was
outside the scope of the second amendment, the second step was conducting a “means-end
analysis.” (Internal quotation marks omitted.) Id. In that analysis, courts weighed the severity of
the regulation against the ends the government sought to achieve in enacting the regulation. Id.
¶ 14 However, in 2022 the Supreme Court issued Bruen, in which it announced a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]). The Court condemned the means-end analysis. Id. (citing [CITATION]). Rather, under Bruen, where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
second amendment to mean. [CITATION] ¶ 70 (citing [CITATION]).
¶ 15 Initially, the State responds that in this case we need not reach the analytical framework
that Bruen provided. The State notes that Bruen concerned a portion of a New York statute that
only issued licenses to carry a firearm outside one’s home or place of business to those who showed
that “proper cause” existed. [CITATION]. The Court differentiated such a “may-issue”
licensing regime from states that had “shall-issue” licensing regimes, in which the state issues a
No. 1-23-0968
license whenever the applicant meets certain, objective requirements. Id. at 38 n. 9. Bruen noted
that nothing in its decision “should be interpreted to suggest the unconstitutionality” of any “shall-
issue” licensing regime. Id.
¶ 16 Following Bruen, in [CITATION], we rejected an argument that the aggravated unlawful use of a
weapon statute (720 ILCS 5/24-1.6(a) (West 2020)) was facially unconstitutional because it
criminalized possessing a firearm if the possessor was in noncompliance with the Firearm Owners
Identification Card Act (430 ILCS 65/1 et seq. (West 2020)) or Firearm Concealed Carry Act (430
ILCS 66/1 et seq. (West 2020)). [CITATION], ¶¶ 7, 19, 29-30. We found in
[CITATION] that those acts were “shall-issue” licensing programs of the type that Bruen had approved,
and the aggravated unlawful use of a weapon statute was therefore not unconstitutional for
criminalizing the possession of a firearm by a person in noncompliance with the acts. Id. ¶¶ 14-
30.
¶ 17 The State notes that those acts prohibit those who have been convicted of a felony from
obtaining a FOID card or CCL. 430 ILCS 65/8(c) (West Supp. 2021); 430 ILCS 66/25(2) (West
2022). The State maintains that we may therefore reject defendant’s facial challenge to the UUWF
statute without reaching any of the analytical steps provided by Bruen as, like those acts, the
UUWF statute prevents felons from carrying firearms. Although we recognize that the UUWF
statute provides that it does not apply if a felon “has been granted relief by the Director of the
Illinois State Police” pursuant to the Firearm Owners Identification Card Act (720 ILCS 5/24-
1.1(a) (West 2022)), we are not convinced that [CITATION] and Bruen’s discussion of licensing schemes
should control here. See [CITATION], ¶ 79 n. 11 (rejecting State’s request
to find Bruen inapplicable to similar statute based on Bruen’s endorsement of shall-issue licensing
No. 1-23-0968
regimes). In any case, the outcome of this appeal would not differ, as the UUWF statute is
constitutional under Bruen’s analytical framework.
¶ 18 Thus, we turn to the analysis provided by Bruen. Again, the first question under Bruen is
whether the second amendment’s plain text covers the conduct at issue. [CITATION] If
it does, the second question is whether the government has demonstrated that the regulation
comports with our national historical tradition of firearm regulation. Id.
¶ 19 Here, defendant claims that the conduct prohibited by the UUWF statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
protected. We disagree. Bruen did not provide that the second amendment granted an unrestricted
right to carry firearms. Rather, it explained that:
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [Citation.] Those
restrictions, for example, limited the intent for which one could carry arms, the manner by
which one carried arms, or the exceptional circumstances under which one could not carry
arms, such as before justices of the peace and other government officials.” Id. at 70.
¶ 20 In [CITATION], and [CITATION], the Supreme Court established that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] (agreeing
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also [CITATION] (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); [CITATION]
(reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
No. 1-23-0968
¶ 21 In two recent cases we rejected as-applied constitutional challenges to the UUWF statute
on that basis, concluding that Bruen did not apply to laws that attempted to regulate firearm
possession by felons. See [CITATION], ¶ 37 (noting that the justices
in the Bruen majority repeated the phrase “law-abiding” 18 times in their majority opinion and
[SEGMENT 34]
concurrences); [CITATION], ¶¶ 27-28 (agreeing with [CITATION] and
noting that Heller suggested that felons did not maintain second amendment rights). As we held
that the UUWF statute could be validly applied to the defendants in [CITATION] and [CITATION], defendant’s
facial challenge to the statute must fail. See [CITATION], ¶ 10 (a statute is only
facially unconstitutional if there are no circumstances under which it could be validly applied); see
also [CITATION], ¶¶ 18-22 (following [CITATION] to reject facial
challenge to UUWF statute).
¶ 22 Defendant requests we depart from our holdings in [CITATION] and [CITATION] and instead follow
the reasoning in [CITATION], ¶¶ 88-89, which found that under the first step
of the two-part Bruen analysis, the second amendment protects the conduct of possessing a firearm,
regardless of the possessor’s felon status. See id. at 89 (reasoning that the first step under Bruen
“does not contemplate the actor or the subject” and so “the defendant’s status as a felon is irrelevant
at this stage of the analysis.”) We decline defendant’s invitation to follow [CITATION] with respect to
the first part of the Bruen analysis. That said, even were we to depart from the holdings in [CITATION]
and [CITATION], we would still find defendant’s facial challenge unavailing under the next step of
Bruen’s analytical framework, as there is sufficient historical precedent to ban felons from
possessing firearms.
No. 1-23-0968
¶ 23 Another district of this court recently considered and rejected a defendant’s facial challenge
to the UUWF statute under the second step of the Bruen analysis. [CITATION], 2024 IL App
(3d) 230113. In [CITATION], the court reiterated that the Supreme Court in Heller and Bruen explained
“the right to bear arms has never been unlimited,” but “ ‘[t]hroughout modern Anglo-American
history,’ ” had been “ ‘subject to well-defined restrictions.’ ” Id. ¶ 27 (quoting Bruen, 597 U.S. at
38). Further, although felons were not broadly prohibited from possessing firearms until the
twentieth century, “such laws evolved from preexisting prohibitions restricting access to firearms,”
including by certain groups of people. Id. ¶¶ 28-29. In colonial America, for example, legislatures
“ ‘disarm[ed] individuals whose status indicated that they could not be trusted to obey the law.’ ”
Id. ¶¶ 30-31 (quoting [CITATION], 2023 IL App (1st) 200435, ¶ 94). In [CITATION], the court therefore
concluded that, under Bruen, there was sufficient historical precedent to make the UUWF statute
facially constitutional, which it also noted had almost no effect on any law-abiding citizen’s right
to armed self-defense. Id. ¶¶ 32-33.
¶ 24 We also find instruction in [CITATION], in which we rejected an as-applied constitutional
challenge under Bruen to the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2016)
(criminalizing possession of firearms after twice being convicted of certain felonies)). [CITATION],
2023 IL App (1st) 200435, ¶ 55. Although [CITATION] concluded (under the first step of Bruen
analysis) that the second amendment encompassed the conduct at issue, this court proceeded to
find (under the second step of the Bruen analysis) that there was ample historical support for the
legislature’s ability to prohibit possession of firearms by twice-convicted felons. Id. ¶¶ 90-105.
The historical analogues included “widespread acceptance of the legislatures’ authority to disarm
felons” during the founders’ era. Id. ¶ 96. [CITATION] recognized a “historical tradition of legislatures
No. 1-23-0968
exercising their discretion to impose status-based restrictions disarming entire categories of
persons” and that “the founders understood that felons were one such group.” (Internal quotation
marks and citations omitted.) Id. ¶ 97.
¶ 25 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
is wrongly decided.2 We decline to revisit [CITATION] here. Rather, we will follow [CITATION] and Travis, and reject defendant’s facial challenge to the UUWF statute under the second
amendment. As defendant has not shown that the UUWF statute is unconstitutional, we affirm his
conviction.
¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 27 Affirmed.
Defendant does not discuss [CITATION], which was decided on April 19, 2024, after defendant filed
his initial brief and the State filed its response brief, but before defendant filed his reply brief on May 2,
2024.
- 10 -
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
2024 IL App (1st) 230571-U
No. 1-23-0571
Order filed October 4, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 9331
)
JVARUS MCKNIGHT ) The Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Presiding Justice Tailor and Justice Gamrath concurred in the judgment.
ORDER
¶1 Held: Affirmed, where State proved defendant possessed a firearm and statute barring
felons from possessing firearms is constitutional.
¶2 A driver with a prior felony might worry about police officers finding a firearm in the car.
Jvarus McKnight, who had a felony conviction, sped off when asked to get out of the car during a
traffic stop, crashing a few blocks away. Officers found a loaded gun in the glove compartment.
¶3 McKnight argues that (i) the State failed to prove that he possessed the gun and (ii) the
statute barring people with felonies from possessing firearms is unconstitutional. Neither of
McKnight’s attacks on his conviction succeed. We disagree and affirm. No. 1-23-0571
¶4 McKnight’s flight, prior felony, and control over the car all contribute to the inference that
he knew about the gun. Furthermore, the statute defining his criminal offense ([CITATION]) violates neither the United States nor the Illinois constitutions.
¶5 Background
¶6 After a bench trial, the court found Jvarus McKnight guilty of unlawful use or possession
of a weapon by a felon ([CITATION]).
¶7 Officer Brian Hima testified that while on patrol with two others, he saw a grey BMW, a
car he was on alert for, with an object hanging from its rearview mirror. He activated the siren and
lights before stopping that car. Hima approached the driver’s side and spoke with the lone
occupant, McKnight, for less than a minute before McKnight suddenly sped off.
¶8 After hearing that a car had crashed blocks away, Hima and his partners drove there. He
saw McKnight in the driver’s seat. Several damaged cars were nearby. Officers arrested McKnight
and searched the car. Hima opened the glove compartment and found a loaded gun.
¶9 Body-worn cameras captured the traffic stop and the scene after the crash. Clips of that
footage showed: (i) McKnight begins, then stops, unbuckling his seatbelt before driving off as
officers stand alongside the car, (ii) damaged cars at the crash site, and (iii) Hima finding a gun in
the glove compartment. The parties stipulated that McKnight had a prior felony.
¶ 10 The trial court found McKnight guilty. It later denied McKnight’s attack on the sufficiency
of the State’s proof, emphasizing McKnight “took off at a high rate of speed,” “got in an accident,”
and thus showed “extreme evidence of consciousness of guilt[.]”
¶ 11 Analysis
No. 1-23-0571
¶ 12 McKnight contends (i) the State failed to prove beyond a reasonable doubt that he
possessed the loaded gun and (ii) the statute barring felons from possessing firearms (720 ILCS
5/24-1.1(a) (West 2020)) is unconstitutional under our federal and state constitutions. We disagree.
¶ 13 Sufficiency
¶ 14 We assess the proof in the light most favorable to the State and ask if a rational trier of fact
could have found the elements beyond a reasonable doubt. [CITATION]. Possession is the pertinent element. 720 ILCS 5/24-1.1(a) (West 2020) (defining
possession as element of unlawful use or possession of weapons by felons). Possession can be
actual or constructive. See [CITATION] (noting pertinent statute prohibits
possession “on” and “about” a person). Because McKnight was not holding the gun, he did not
actually possess it. E.g., [CITATION] (State proved actual
possession by presenting officer testimony about seeing defendant toss gun).
¶ 15 The State proves constructive possession by establishing defendant (i) knew the gun was
present and (ii) had immediate and exclusive control over the area. [CITATION].
McKnight disputes both parts.
¶ 16 Control
¶ 17 Officers pulled McKnight over and, moments after the crash, again saw him sitting in the
car. McKnight was the driver; no one else was present, so the trier of fact could have found that
McKnight had immediate and exclusive control over the glove compartment. [CITATION] (“control of the vehicle rather than ownership of the vehicle which
is pertinent to proof of control of the area”).
No. 1-23-0571
¶ 18 McKnight does not dispute that, as the lone occupant, he drove and crashed the car. Instead,
he insists the State needed to present proof that he (i) owned the car or (ii) had “other possessions”
in it. The case he cites in support, however, demands nothing of the sort. In [CITATION], officers had not seen the defendant inside the car but had found his
possessions in it and knew the defendant was the registered owner. [CITATION], ¶¶ 4, 31, 42. Here, however, officer testimony and body cam footage proved McKnight’s
control. “[D]irect evidence of a defendant driving a vehicle is * * * sufficient evidence of control.”
Id. ¶ 42 (noting “issue of control is noncontroversial in the great majority of cases where a
defendant is stopped while actually driving a vehicle”).
¶ 19 Knowledge
¶ 20 McKnight contends his presence in the car was not proof he knew the loaded handgun was
in the glove compartment. He asserts that no evidence showed he (i) could see the gun from where
he sat, (ii) attempted to retrieve or conceal the gun, or (iii) owned the car or often used it. In
McKnight’s view, the absence of this evidence shows he did not know about the gun, rendering
evidence of his flight “meaningless.”
¶ 21 We disagree. When analyzing the State’s proof, “we review all the evidence, not some.”
[CITATION], ¶ 40 (citing Collins, 106 Ill. 2d at 261). McKnight
errs by excluding evidence of his flight, overlooking the relevance of his prior felony, and
minimizing his control over the car as its lone occupant.
¶ 22 Officers observed McKnight commit a traffic violation, speed away from the traffic stop
when asked to get out of the car, and later exit within arm’s reach of a loaded gun at the crash site.
These facts, together with McKnight’s felony conviction, allowed the trial court to infer McKnight
No. 1-23-0571
knew about the firearm’s presence. See [CITATION],
(“rational” inference defendant with prior felony was “armed” where his hands were near his waist
while fleeing on foot and gun was within arm’s reach at arrest).
¶ 23 To be sure, the trial court could not infer McKnight knew about the gun just because he
was in the car when stopped for a traffic violation. E.g., [CITATION]
¶¶ 36-47 (holding State failed to prove defendant knew firearm was present and embedded within
structure of driver’s seat). Rather, McKnight’s actions during the stop—speeding away rather than
getting out as the officers apparently directed—suggest a guilty conscience. Id. ¶ 44 (defendant
“did and said nothing during the encounter that would cause the officers to conjecture that he knew
about the handgun”); [CITATION] (flight from car while
ignoring demands to stop supported inference defendant possessed gun). And his felony, one that
barred him from possessing firearms (720 ILCS 5/24-1.1(a) (West 2020)), offered a basis for
inferring discovering the gun inspired his bolting from the stop.
¶ 24 The record does not reveal what the trial court meant when describing McKnight’s flight
as “extreme evidence.” We hold only that a factfinder could have found the elements of
constructive possession beyond a reasonable doubt. See [CITATION] (stating
standard). We affirm McKnight’s conviction for violating section 24-1.1(a).
¶ 25 Facial Challenge
¶ 26 McKnight also argues section 24-1.1(a) violates both the second amendment of the federal
constitution and article I, section 22 of the Illinois constitution. He raises a facial challenge, the
“ ‘most difficult challenge to mount successfully, ’ ” because it requires “ ‘establish[ing] that no
[SEGMENT 2]
set of circumstances exists under which [section 24-1.1(a)] would be valid.’ ” See [CITATION]
No. 1-23-0571
Rahimi, --- U.S. ----, 144 S. Ct. 1889, 1898 (2024) (quoting [CITATION]); see also [CITATION].
¶ 27 Two laws primarily drive McKnight’s challenge under both constitutions. The second
amendment provides: “A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. Section
24-1.1(a) provides: “It is unlawful for a person to knowingly possess on or about his person * * *
any firearm or any firearm ammunition if the person has been convicted of a felony[.]” 720 ILCS
5/24-1.1(a) (West 2020). We review McKnight’s challenge de novo ([CITATION]) and hold it fails.
¶ 28 Federal Constitution
¶ 29 McKnight contends that a law like section 24-1.1(a) “would have been unknown to those
who ratified the [c]constitution” and thus violates the second amendment. He notes the State has
the burden to justify section 24-1.1(a). But, because he attacks the law before this court for the
first time ([CITATION]), he proceeds in two steps. See [CITATION] (holding second amendment protects right
to public carry and clarifying analytical framework courts must apply).
¶ 30 First, McKnight contends “all Americans,” even those with prior felony convictions, “fall
within the [s]econd [a]mendment’s protections” for “the people.” Next, he contends no “true
historical analogue” to section 24-1.1(a) exists because historical bans focused on “actual
dangerousness, not status or criminal history.” In his view, “shall not be infringed” means no law
can now ban McKnight from firearm possession.
¶ 31 Applicability of Second Amendment
No. 1-23-0571
¶ 32 The first step under Bruen asks whether the second amendment’s plain language covers
McKnight’s conduct. [CITATION] at 18. McKnight contends his conduct, possessing a firearm,
“presumptively” falls within the second amendment’s sweep. [CITATION], ¶ 87, pet. for leave to appeal, No. 130153 (filed Oct. 30, 2023) (holding second
amendment’s “keep and bear arms” language encompasses possession); but see [CITATION], ¶ 26 (discussing split in authority on this issue); [CITATION]
(same). We assume without deciding that the second amendment’s protection of “the people” includes McKnight.
¶ 33 History and Tradition
¶ 34 The second step asks whether section 24-1.1(a) is rooted in this nation’s history and
tradition of firearms regulation. [CITATION] at 33-34. McKnight contends no “true historical
analogue” to section 24-1.1(a) exists because historical bans focused on “actual dangerousness,
not status or criminal history.” We disagree.
¶ 35 Any search for a true historical analogue, as McKnight understands it, misplaces the
Supreme Court’s focus. See [CITATION]; see also id. at 1925 (Barrett, J., concurring)
(“historical regulations reveal a principle, not a mold”). Instead, we ask whether section 24-1.1(a)
aligns with the “principles that underpin our regulatory tradition.” Id. at 1898.
¶ 36 Reasoning by analogy, as [CITATION] instructs, section 24-1.1(a) finds historical analogues in
laws pre-dating our country’s founding. Early English kings, Parliament, North American
colonists, and American founders all “believed that certain classes of people posed a great risk of
violence[:] Thus, until those individuals could show they did not pose such a risk, they could be
forbidden from owning firearms.” [CITATION]; see also [CITATION]
No. 1-23-0571
230113, ¶ 31 (noting “concept of disarming criminals dates at least to Pennsylvania's ratifying
convention”).
¶ 37 Governments then and now have presumptively disarmed entire groups. [CITATION] Section 24-1.1(a) presumptively disarms people with felony convictions but does
not violate the second amendment. Rather, section 24-1.1(a) controls the dangers posed by
firearms and those who might use them to harm. See [CITATION].
Contrary to McKnight’s contention, historical analogues to section 24-1.1(a) would have been
known to our founders: Section 24-1.1(a) does not violate the second amendment.
¶ 38 Illinois Constitution
¶ 39 McKnight concedes his “substantive analysis” under the federal and state constitutions is
“the same.” Thus, his contention under article I, section 22 of the Illinois constitution fails for
similar reasons. See [CITATION].
¶ 40 Additionally, because we have assumed “the people” under the second amendment
includes McKnight, we need not address his claim that our constitution’s use of “the individual
citizen” somehow differs from the federal constitution’s use of “the people.” Likewise, we need
not decide whether our constitution’s use of “[s]ubject only to the police power” improperly limits
his right under the second amendment.
¶ 41 Affirmed.
2024 IL App (1st) 221562-U
No. 1-22-1562
First Division
September 30, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 21 CR 10721
v. )
)
SONNIE MARTIN, ) Honorable
) Vincent M Gaughan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for unlawful possession of a weapon by a felon is affirmed
where (1) the evidence was sufficient to prove beyond a reasonable doubt that he
possessed a firearm within the meaning of the statute, (2) the trial court properly
denied his motion to suppress, and (3) his as-applied constitutional challenge under
the second amendment is without merit.
¶2 Following a bench trial, defendant-appellant Sonnie Martin was found guilty of unlawful
possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2020)) and sentenced to No. 1-22-1562
44 months’ imprisonment. Defendant appeals therefrom, arguing that (1) there was insufficient
evidence to find him guilty of UPWF beyond a reasonable doubt; (2) the trial court erred in denying
his motion to suppress; (3) his conviction for UPWF violates the second amendment of the United
States Constitution; and (4) his 44-month sentence was excessive. 1 For the reasons that follow, we
affirm.
¶3 I. BACKGROUND
¶4 On August 13, 2021, defendant was charged by indictment with one count of UPWF and
two counts of aggravated unlawful use of a weapon based on an investigatory stop and subsequent
search which took place on July 21, 2021.
¶5 Prior to trial, on December 7, 2021, defendant filed a motion to suppress evidence alleging
that the police did not have reasonable, articulable suspicion to stop him, and therefore, the weapon
seized from his person was inadmissible as evidence. A hearing was conducted contemporaneously
with the trial at which the following evidence was presented.
¶6 Chicago police officers Cesar Cuevas and Jose Granados both testified as to the following
facts. On July 21, 2021, while in their police vehicle, they received a dispatch call from the Office
of Emergency Management and Communications (OEMC) at 5:49 p.m., which relayed a 911 call
from an anonymous person who reported a person “flashing a gun” at the Falcon Fuel gas station
located at the intersection of 79th Street and Ashland Avenue. The subject was described as a black
male wearing a white T-shirt, black jeans, and orange, purple, and green shoes. After the dispatch
call recording was played in court, Cuevas testified that the dispatcher did not say that the caller
Because defendant’s sentence has been discharged, he has withdrawn the issue of excessive
sentence as moot. See [CITATION] (noting that “the completion of a defendant’s sentence renders a challenge to the sentence moot”).
[SEGMENT 3]
No. 1-22-1562
observed a person flashing a gun, how long it had been since the caller said there was a person
flashing a gun, or how the caller knew there was a person flashing a gun.
¶7 The officers drove towards the Falcon Fuel gas station where they observed an individual
matching the description in the parking lot of the gas station. The person was a black male wearing
a white T-shirt, black jeans, and orange, purple, and green shoes. The officers, along with
additional police officers in another police vehicle behind them, detained the person, who Cuevas
and Granados identified in court as defendant. This occurred one to two minutes after receiving
the dispatch call. Cuevas confirmed that, upon first seeing defendant, he was not doing anything
illegal.
¶8 Defendant was instructed to stop and place his hands on the wall. The officers proceeded
to handcuff defendant as Cuevas asked defendant if he had any weapons on his person. Defendant
responded, “my protection,” which Cuevas understood to mean that defendant had a weapon on
him. Defendant’s shirt was lifted, which revealed a weapon in his waistband. Granados recovered
the weapon, and eventually defendant was placed in the other police vehicle to be transferred to
the police station. Granados “cleared the weapon for any bullets and discovered one chambered
bullet in the firearm.” Granados testified that, based on his four years’ experience as an officer and
his further examination of the weapon at the police station, the weapon he recovered was a firearm.
In court, Cuevas viewed the inventoried items, which he stated were “1 live round in my hand, the
black steel 9-millimeter handgun and then empty magazine.” In looking at the recovered weapon,
he noted that it looked like the serial number had been scratched off. Cuevas further confirmed
that the officers did not speak with anyone else at the gas station and did not request any security
footage and that no one else at the gas station matched the 911 caller’s description.
No. 1-22-1562
¶9 The recovered weapon was eventually sent to the Forensic Services Division. Both officers
testified that they did not request the Forensic Sciences Division to conduct any tests or further
analyze the weapon. Cuevas testified that he knew there were tests to recover scratched-off serial
numbers, but Granados was not aware of those tests at the time. Both officers also testified that
the recovered magazine did not fit the weapon and a part of it seemed to be missing.
¶ 10 The body-worn cameras on both Cuevas and Granados were active and functioning
properly that day. Footage from both body cams was played before the court.
¶ 11 In the footage from Cuevas’s body cam, the officers arrive at the gas station, immediately
spot an individual matching the description, and defendant is instructed to place his hands on the
wall. One of the officers then brings his hands around his back to place them in handcuffs, as
another officer asks, “You got anything on you?” and defendant responds, “Yes. My protection.”
As they lift defendant’s shirt, a weapon is visible in his waistband, which is then recovered. Cuevas
walks towards Granados who states that there was one bullet in the chamber and notes that the
magazine does not appear to fit the weapon. One of the other officers is heard asking defendant if
he has a firearm owner’s identification (FOID) card or a concealed carry license (CCL), but a
response, if offered, is not audible. Cuevas then returns to the vehicle to run defendant’s driver’s
license and Granados places the recovered items in the police vehicle. Granados states, “I don’t
even know what kind of gun that is.” He also states, “it’s a fake gun” and “it’s a BB-gun.” Cuevas
responds, “We can figure it out at the station.”
¶ 12 Granados’s body cam footage reflects the same sequence of events. In particular, he is seen
recovering the weapon from defendant’s waistband. He pulls the magazine out and eventually
removes a bullet from the chamber of the weapon. Later, after Cuevas states, “We can figure it out
at the station[,]” Granados walks back towards the other police vehicle to instruct the other officers
No. 1-22-1562
to drive defendant to the station. He then states, “I don’t think the gun is real.” Chicago police
officer Edwards 2 agrees, stating “That’s what I thought.” Granados responds, “It looks like a f***
BB-gun. I guess we’ll figure it out at the station.” Granados returns to his vehicle and the footage
ends.
¶ 13 On cross-examination, Granados testified that the magazine did not fit neatly within the
weapon which made him suspicious that it was not a real gun. He further testified that he examined
the gun and “[a]t the beginning” he thought it was a BB-gun or a fake gun. He also testified that it
appeared that part of the gun was wood, which he found inconsistent with other firearms. He also
confirmed that there was an orange dot on the weapon, which is consistent with BB-guns. He
confirmed that the reason for the orange dot was to distinguish between a real firearm and a BB-
gun. He elaborated that: “At the beginning when I first started looking at it I wasn’t sure until
further on. I kept on looking at all the aspects making sure I had a real firearm which ended up
being *** a real firearm.” When asked to clarify, he stated:
“So once I took the magazine out I realized that it was a broken magazine which is
a real magazine but the magazine has a spring inside. The bottom part, which was there
was supposed to hold the spring which the bullets go through the top and that firearm didn’t
have that. *** [T]hey broke that off.
Then there is a part in the gun where there’s supposed to be a serial number. That
serial number was not there. It appeared to be scratched off somehow. That’s how I knew
it was a firearm and then in the back of the gun there’s a pin which it’s supposed to – when
Officer Edwards’s first name does not appear in the record.
================================== No. 1-22-1562
you hit the trigger the pin hits the bullet which makes it fire and that pistol has a pin in the
back. If you look at the back of the gun[,] there is that pin right there.”
¶ 14 Specifically, as to the serial number, Granados testified that “where the serial number is
supposed to be[,] [t]here was one letter and there’s supposed to be a number following it. There
was no number there.” When asked when he changed his mind that the weapon was in fact a real
gun, Granados responded: “Once I got to the station and I viewed the – I had time to view the
pistol because I can’t really – I have to be watching my surroundings while I’m on the street
especially in the area I was at.”
¶ 15 After both witnesses concluded their testimony, the State sought to present a firearms
expert as a witness, but the trial court denied the State’s motion. The parties then stipulated that
defendant had a 2017 felony conviction for delivery of a controlled substance, for which he
received two years’ probation.
¶ 16 The trial court first ruled on defendant’s motion to suppress, finding that the officers had
reasonable suspicion to stop defendant. This finding was based on the specific description given
in the 911 call, defendant matching the description, and the brief time that elapsed from the
dispatch call to the officers’ stop. The trial court also found that the officers’ detainment of
defendant as well as the lifting up of his shirt were within the scope of a Terry stop, and once they
saw the weapon, they had probable cause to arrest him.
¶ 17 As to the bench trial, the trial court found that the State had proved “each and every
element” beyond a reasonable doubt for the charge of UPWF. We note that, prior to ruling, the
court stated: “I don’t like the idea of Officer Cuevas saying, [‘]We’ll take care of it at the station.[’]
That was nonsense because nothing was taken care of.”
No. 1-22-1562
¶ 18 Defendant filed a motion to reconsider or, alternatively, for a new trial, asserting that the
State failed to prove the offense beyond a reasonable doubt and that the trial court erred in denying
the motion to suppress evidence. The trial court denied this motion.
¶ 19 Following a sentencing hearing, defendant was sentenced to 44 months’ imprisonment with
641 days of credit. On the same day, defendant filed a motion to reconsider the sentence, which
the trial court denied.
¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues that (1) there was insufficient evidence to find him guilty of
UPWF beyond a reasonable doubt; (2) the trial court erred in denying his motion to suppress; and
(3) his conviction for UPWF violates the second amendment of the United States Constitution.
¶ 23 A. Sufficiency of the Evidence
¶ 24 Defendant first contends that the evidence presented was insufficient to establish his guilt
beyond a reasonable doubt. In particular, defendant argues that the State failed to prove that
defendant possessed a “firearm” where the body cam video showed “the officers examining the
item and stating it was a BB-gun[.]” In his reply brief, defendant further argues that “there was no
[SEGMENT 4]
evidence that Granados further examined the item at the station” and points out that the trial judge
commented on the officers’ failure to actually analyze the gun at the station as they insinuated they
would.
¶ 25 The State responds that defendants’ argument lacks merit where a live bullet was found in
the chamber of the weapon and both officers identified the weapon as being a “real” nine-
millimeter handgun based on their training and experience. The State also contends that the
argument fails because the trial court had the opportunity to observe the gun, its magazine, and the
No. 1-22-1562
recovered bullet, and based on that evidence, the trial court correctly found that each element of
the offense had been proved.
¶ 26 When a defendant challenges the sufficiency of the evidence against him, this court must
determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’ ” (Emphasis in original.) [CITATION] (quoting [CITATION]). A reviewing court will not retry the defendant or substitute
its judgment for that of the trier of fact regarding the credibility of witnesses or the weight to be
given to each witness’s testimony. [CITATION]. A defendant’s
conviction will be reversed only when the evidence is so unreasonable, improbable, or
unsatisfactory that it creates a reasonable doubt of his guilt. [CITATION], ¶
24.
¶ 27 The State has the burden of proving beyond a reasonable doubt each element of an offense.
[CITATION], ¶ 35. To sustain a conviction for UPWF, the evidence must
establish beyond a reasonable doubt that the defendant possessed a firearm and was convicted of
a prior felony. 720 ILCS 5/24-1.1(a) (West 2020). The parties stipulated to defendant’s prior felony
conviction, and thus, the only element at issue before this court is whether defendant possessed a
firearm.
¶ 28 The FOID Act defines a “firearm” as any device “designed to expel a projectile or
projectiles by the action of an explosion, expansion of gas or escape of gas[.]” 430 ILCS 65/1.1.
(West 2020). Additionally, to qualify as a firearm under the statute, the device cannot fall into one
of four exceptions: BB-guns, paintball guns, flare guns, or certain antique firearms. Id.
No. 1-22-1562
¶ 29 It is well established that the positive and credible testimony of a single witness is sufficient
to sustain a conviction. [CITATION]. In particular, “courts
have consistently held that eyewitness testimony that the offender possessed a firearm, combined
with circumstances under which the witness was able to view the weapon, is sufficient to allow a
reasonable inference that the weapon was actually a firearm.” [CITATION]. Additionally, video evidence showing a defendant with a gun has been
sufficient to prove the defendant possessed a firearm. [CITATION].
¶ 30 In this case, the record shows that both police officers viewed the recovered weapon during
the bench trial and testified that it was a real firearm. See [CITATION]. Further, a 9-
millimeter live round was found in the chamber of the firearm, which also supported the finding
that the recovered weapon was a firearm and not a BB-gun. Although both officers acknowledged
at trial that the gun was initially suspected to be fake or a BB-gun, they later determined that it was
a firearm as defined in the FOID Act. Contrary to defendant’s assertion, Granados specifically
testified that he further examined the firearm at the station “where he had time to view the pistol”
and he explained precisely what led him to believe upon further examination that it was a “real”
firearm. Additionally, there were no inconsistencies in the officers’ testimony, and thus, their
No. 1-22-1562
testimony remained unimpeached. In any case, this court cannot substitute its judgment for that of
the trier of fact regarding witness credibility. As such, we conclude that the trial court’s finding
that all elements of the offense were met was supported by sufficient evidence.
¶ 31 Nonetheless, defendant asserts that, because Granados initially commented that the gun
might not be real or might be a BB gun, his testimony identifying the weapon as a real firearm
should be discounted and is not sufficient to sustain his conviction. Citing [CITATION], defendant specifically contends that, as there was some contrary evidence
that the weapon was a fake gun or a BB-gun, the trial court could not have properly found that it
was a firearm as defined in the FOID Act.
¶ 32 In [CITATION], the defendant was convicted of armed robbery following a bench trial. Id. ¶ 1.
On appeal, the defendant argued that there was no evidence that the item in his hand met the
statutory definition of a firearm where the gun was never recovered and there was no detailed
description of the gun. Id. ¶ 41. The record showed that the victim testified that she saw the
defendant holding a gun and stated “I seen [sic] a whole gun. It was rested on the [counter], his
hand was on it, it was black.” Id. ¶ 51. In concluding that there was sufficient evidence for a rational
trier of fact to find that defendant was armed with a gun that met the statutory definition of a
firearm, the court stated that “[t]here was no contrary evidence presented that the gun was a toy
gun, a BB gun, or anything other than a ‘real’ gun.” Id. ¶ 52. The court based its conclusion on the
victim’s “unequivocal testimony and the circumstances under which she viewed the gun, coupled
with the videotape of the offense and still photograph[.]” Id.
¶ 33 Defendant misreads [CITATION] and improperly broadens its import to effectively conclude
that any contrary evidence that the gun was anything other than a real firearm would result in
insufficient evidence to prove that element. The fact that there is conflicting evidence does not
- 10 -
====== End of the Part of the Court Ruling ====== No. 1-22-1562
render it insufficient for conviction. Rather, even where there is conflicting evidence presented at
trial, the trier of fact is free to weigh the evidence, determine the credibility of witnesses, and come
to any rational conclusion as to the sufficiency of the evidence. See [CITATION]. The trial court, as the trier of fact in a bench trial, did just that in this case.
¶ 34 Additionally, defendant’s argument that Granados’s testimony should be discounted in its
entirety based on his statements at the scene is effectively a request for this court to second-guess
the trier of fact’s weighing of the evidence. As we have already made clear, to reweigh the evidence
would usurp the role of the trier of fact. See [CITATION] (“The reviewing court
‘will not retry the defendant, nor will we substitute our judgment for that of the trier of fact.’”).
¶ 35 Even accepting defendant’s seeming invitation to us to reweigh the evidence, his
insufficiency argument would nonetheless fail. Although Granados did state at the scene that the
gun was either fake or a BB-gun, he testified consistently at trial that, after examining the weapon
in greater detail and with better focus at the station, his opinion changed and he determined that it
was, in fact, a real firearm. While viewing the weapon in court, he provided the following reasons
to support his determination: the gun’s serial number had been scratched off; the gun had a pin in
it, which is consistent with real firearms; and the magazine did not fit in the gun simply because it
was broken. We acknowledge, as did the trial court, Granados’s initial uncertainty regarding the
weapon while at the scene. Clearly the trial court was aware of and considered Granados’s initial
speculation and the officers’ failure to submit the firearm for further analysis but ultimately
decided that the officers’ testimony was sufficiently credible to find that defendant possessed a
firearm as contemplated in the FOID Act. In so finding, the court relied on Granados’s testimony
that he investigated the firearm further and determined it was a firearm, as well as Cuevas’s
testimony that the weapon was a 9-millimeter handgun. Our reviewing courts have declined to
- 11 - No. 1-22-1562
“establish a minimum requirement” for proving that a defendant possessed an actual firearm
([CITATION]), and therefore, under the applicable standard of review,
we cannot say that the trial court’s conclusion based on the officers’ testimony at trial was
unreasonable.
¶ 36 Defendant also relies on [CITATION] for support. In [CITATION],
the defendant was convicted of armed robbery. Evidence at trial was to the effect that the arresting
officer drove the robbery victim back to the scene of the offense and the victim pointed out the
defendant, who was then arrested. [CITATION] As the officer approached the defendant, he observed
him throw something into a bush. [CITATION] A gun was retrieved from the bush, but it was not offered
into evidence at trial. [CITATION] However, the officer described it as a “ ‘4.5 BB caliber gun with a three
inch barrel.’ ” [CITATION] The inventory sheet in the record listed the gun consistently with the officer’s
[SEGMENT 5]
testimony. [CITATION] The victim described the gun as “ ‘a black, very portable gun.’ ” On appeal, the
supreme court concluded that the evidence was insufficient to support the trier of fact’s inference
that the “gun” the defendant possessed constituted a dangerous weapon. [CITATION] This conclusion
was based on the evidence that the gun was in fact a small BB gun and the lack of evidence
regarding whether it was loaded, whether it was brandished as a bludgeon, or regarding its weight
or composition. [CITATION]
¶ 37 This case is distinct from [CITATION] in the obvious fact that the officers in this case, although
originally speculating that the weapon was a BB gun or a fake gun, both testified at trial that it was
a “real” firearm. In [CITATION], there was no dispute that the weapon was, in fact, a BB gun. [CITATION]
Moreover, the issue in [CITATION] was markedly different where the trier of fact was deciding whether a
small BB gun could be considered a dangerous weapon under the armed robbery statute, not
whether the weapon could be considered a firearm under the FOID Act.
- 12 - No. 1-22-1562
¶ 38 Rather, the State offers [CITATION], and we agree.
In that case, a police officer, who was about 50 feet away, observed the defendant leave the
building she was surveilling “ ‘carrying a silver handgun’ ” and leaving the area in a white van.
Id. ¶ 4. The officer followed the van, which was quickly stopped by other police officers. Id. After
the occupants, which included the defendant and two other individuals, exited the van, a handgun
was recovered from underneath the van near the door from which the defendant exited. At trial,
the officer described the item recovered as “ ‘the same color [and] size of the handgun I saw the
gentleman enter the van with.’ ” Id. ¶¶ 5-8. The officer further testified that she had 12 years of
experience as a police officer and was familiar with handguns. Id. ¶ 6. The gun was not offered
into evidence at trial, and it was not tested for fingerprints. Id. ¶¶ 8-9. The appellate court reversed
the defendant’s conviction for being an armed habitual criminal, reasoning that, in the case of
possessory firearm offenses, the item possessed cannot be inferred to be a firearm from
circumstantial evidence. Id. ¶ 17.
¶ 39 Our supreme court reversed this court and concluded that a rational trier of fact could infer
from the testimony presented *** that [the] defendant possessed a firearm” as defined by the
statute. Id. ¶ 35. This conclusion was based on the clear and unimpeached testimony of the officer
who first observed the gun and another officer’s testimony that the recovered weapon matched the
description and was fully loaded and had to be unloaded when it was recovered. Id. ¶¶ 36-37.
¶ 40 Although there were no initial speculations in [CITATION] regarding the weapon’s
authenticity, we nonetheless find [CITATION] helpful. Notwithstanding Granados’s statements,
greater evidence was presented at trial that the recovered weapon was a firearm. Unlike [CITATION],
here, the recovered weapon was presented in court, along with a live round found in the weapon’s
chamber; the testifying officers viewed the weapon during the bench trial; and Granados
- 13 - No. 1-22-1562
specifically offered several reasons as to why he later determined at the police station that the
firearm was not a BB gun or a fake gun but was, in fact, a real gun. Additionally, in reversing the
appellate court, the supreme court in [CITATION] rejected the notion that there must be some direct
or physical evidence proving that an item is a “real” firearm. This supports our earlier point that
there is no minimum evidentiary requirement for firearms identification, and thus, the trial court
here was free to conclude, based on the evidence presented, that the firearm fell within the statutory
definition, even without a firearms expert or forensic analysis.
¶ 41 Because the credible testimony of experienced police officers can support a finding that a
weapon is a firearm as defined by statute, we do not find the trial court’s finding that defendant
possessed a firearm so unreasonable, improbable, or unsatisfactory that there is a reasonable doubt
as to defendant’s guilt. See [CITATION]. Accordingly, viewing the evidence in the light most favorable to the State, as we must, we conclude that there was
sufficient evidence to support defendant’s conviction for UPWF.
¶ 42 B. Motion to Suppress
¶ 43 Next, defendant argues that the trial court erred in denying his motion to suppress because
the officers relied solely on an anonymous tip and lacked reasonable suspicion or probable cause
to stop, search, and arrest defendant. Defendant relies on [CITATION], as
well as [CITATION], for support of his argument.
¶ 44 In response, the State contends that the stop of defendant was permissible as it was
predicated on reasonable suspicion created by the anonymous 911 call that provided a detailed
description of the suspect. For support, the State cites [CITATION], where
our supreme court recently assessed a stop based on an anonymous 911 call. The State also asserts
that the officers had valid probable cause to arrest defendant based on the weapon recovered from
- 14 - No. 1-22-1562
his person. For the reasons that follow, we agree with the State and conclude that the trial court
properly denied the motion to suppress.
¶ 45 The standard for reviewing a trial court’s ruling on a motion to suppress is twofold. First,
the trial court’s factual findings and credibility determinations are subject to the manifest weight
of the evidence standard. [CITATION]. A finding is against the
manifest weight “ ‘only when an opposite conclusion is apparent or when findings appear to be
unreasonable, arbitrary, or not based on evidence.’ ” [CITATION], ¶ 21 (quoting [CITATION]). This deferential standard is based
on the supposition that the trial court is in “a superior position to determine and weigh the
credibility of the witnesses, observe the witnesses’ demeanor, and resolve conflicts in their
testimony.” [CITATION]. Second, the trial court’s ultimate legal ruling, i.e. whether
the evidence should be suppressed, is reviewed de novo. Id.
¶ 46 The fourth amendment to the United States Constitution provides the “right of the people
to be secure in their persons, houses, papers and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const., amend. IV. The reasonableness requirement of the
fourth amendment generally requires a warrant supported by probable cause. [CITATION].
“Probable cause exists where the facts and circumstances, considered as a whole, are
sufficient to justify a belief by a reasonably cautious person that the defendant is or has been
involved in a crime.” [CITATION], ¶ 25.
¶ 47 An exception to the warrant requirement exists where officers conduct an investigatory
stop, also known as a Terry stop, based on reasonable suspicion that a crime has been or is about
to be committed. [CITATION]; see [CITATION] (setting forth the principles for determining the reasonableness of a temporary investigative
- 15 - No. 1-22-1562
stop). An officer may make an investigatory stop of any person if he or she “reasonably infers
from the circumstances that the person is committing, is about to commit or has committed” a
criminal offense. 725 ILCS 5/107-14(a) (West 2020). The relevant question is whether the facts
available to the officer would warrant a person of reasonable caution to believe that the action
taken was appropriate. [CITATION]. This analysis
necessitates a balance of the need for the seizure against the invasion that the seizure entails. [CITATION].
¶ 48 Further, “reasonable suspicion is a less exacting standard than probable cause,” and an
investigatory stop may be justified even “when no violation of the law is witnessed, so long as it
does not constitute a mere hunch.” [CITATION]. An officer “must
point to specific, articulable facts that, taken together with rational inferences, reasonably warrant
the intrusion.” Id. As relevant here, where the investigatory stop is based on information from a
third party, the tip must be reliable and allow “an officer to reasonably infer that a specific person
was involved in criminal activity.” [CITATION]. In
assessing the reliability of a tip, the court must consider whether the officers’ observations
corroborate the tip, whether the informant explains the basis for his knowledge of the tip, and the
duration of time between receiving the tip and acting upon it. [CITATION].
¶ 49 Here, the State satisfied its burden of establishing that the officers’ investigatory stop was
appropriate based on the information available to them at that time. Both officers testified that they
received a dispatch call relaying a 911 call that a person was “flashing a gun” at a gas station and
this person was wearing a white T-shirt, black pants, and orange, green, and purple sneakers. This
dispatch call was included in the record and played during the bench trial. Although the officers
- 16 - No. 1-22-1562
[SEGMENT 6]
presumed that the report was based on the 911 caller’s personal observation, the call did not
explicitly make that clear. Less than two minutes after the dispatch call, the officers arrived at the
gas station and immediately observed defendant who precisely matched the description and,
according to Cuevas, no one else at the gas station matched the description. The body cam footage
also showed that defendant matched the description including the distinctively colored sneakers.
This observation of a person matching the description corroborated the 911 call and from that an
inference of credibility was warranted. [CITATION]; see also [CITATION]
not truly anonymous because the caller can be identified and subjected to criminal charges if a
false report has been made).
¶ 50 The officers then detained defendant and, based on the information gleaned from the 911
call, they began handcuffing him and asked if he had anything on his person. Under these
circumstances, the handcuffing was reasonable as the officers already reasonably suspected, based
on the 911 call and defendant’s matching description, that he was armed with a weapon. See
[CITATION] (handcuffing a person does not necessarily convert a Terry stop into an
arrest). When defendant responded that he had his protection, which Cuevas understood to mean
a weapon, the officers lifted his shirt, revealing a gun in his waistband. See [CITATION] (“A weapons frisk is valid only when the officer has reason to believe that
a particular individual is armed and dangerous.”); see also [CITATION] (Police officers “are not required to risk their safety by assuming that a suspect will
submit peacefully to questioning.”). Based on this, the trial court determined that the investigatory
stop was proper, and there is nothing in the record that persuades us that an opposite conclusion
was apparent or that the court’s decision was arbitrary or unreasonable. See [CITATION]
- 17 - No. 1-22-1562
Ill. App. 3d 26, 31 (2000) (the scope of the investigation must be reasonably related to the
circumstances that justified the police interference and the investigation must last no longer than
necessary to effectuate the purpose of the stop); see also [CITATION] (noting, if articulable facts support a reasonable suspicion that a person has committed a
criminal offense, police may stop the person to identify him, question him briefly, or detain him
briefly while attempting to obtain additional information).
¶ 51 In coming to this conclusion, we have considered the cases upon which each party relies
for support of their respective positions as to the reliability of the 911 call.
¶ 52 We begin with defendant’s request that we follow the decision of [CITATION], to conclude that the 911 call here did not provide the officers with reasonable suspicion
to justify the investigatory stop. In [CITATION], an anonymous caller reported to the police that a young
black male wearing a plaid shirt was standing at a bus stop carrying a gun. Id. at 268. No audio
recording of the tip was provided, and nothing was known about the caller. Id. It was also unknown
how much time after receiving the call officers were instructed to respond. Id. When the officers
arrived at the bus stop, they observed an individual matching the description, and although the
defendant did not make any furtive movements and did not visibly appear to have a gun, the
officers detained him, frisked him, and seized a gun from his pocket. Id.
¶ 53 The Supreme Court held that the anonymous tip by itself was insufficient to justify the
Terry stop. Id. at 272. In determining that the tip did not give rise to reasonable suspicion, the
Court specified its deficiencies: there was no predictive information, the informant was
unaccountable, and the informant did not explain how he had obtained this information regarding
a concealed weapon. The Court thus reasoned that an anonymous tip must be reliable in “its
- 18 - No. 1-22-1562
tendency to identify a determinate person” and “its assertion of illegality” and those requirements
were not satisfied in the case before it. Id. at 272.
¶ 54 In contrast to J.L., the tip here was slightly more specific in its description of the person
including both the color of the person’s pants and the distinctive coloring of his sneakers and the
tip was corroborated where a person matching the description was observed only one to two
minutes after the dispatch call. Additionally, the use of the emergency system for the anonymous
caller in this case is a significant distinction from the call made in J.L.
¶ 55 Finally, there was an assertion of suspected illegality in the call here that was not present
in J.L. Here, the caller stated that the person was “flashing a gun” at the gas station. The applicable
definitions of “flash” in this context are: “to make known or cause to appear with great speed,” “to
display obtrusively and ostentatiously,” or “to expose to view usually suddenly and briefly[.]”
Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/flash (last
visited September 9, 2024). The fact that the caller used the word “flashing” suggests that the
person was doing so repeatedly or consistently, and it is significant that the person was doing this
in a public place. Even if the person had both a FOID card and a CCL, exposing the handgun in
public would constitute a violation of the Concealed Carry Act (430 ILCS 66 et seq. (West 2020)).
See [CITATION], ¶ 37 (individuals are implicitly prohibited from
carrying fully exposed handguns in view of the public). From the foregoing, it would be reasonable
to infer that (1) the caller personally observed this behavior and, (2) the person “flashing a gun” is
not a law-abiding citizen in lawful possession of a firearm. See [CITATION] (stating a
reasonable suspicion of criminal activity may arise from “unusual conduct” that may lead an
officer to believe “criminal activity may be afoot”). In contrast, the caller in J.L. merely stated the
person at the bus stop was in possession of a gun. Thus, it was unclear how a bystander could have
- 19 - No. 1-22-1562
knowledge of a concealed weapon and there was no report of conduct that suggested illegal
activity. For these reasons, we find J.L. distinguishable.
¶ 56 Defendant also relies on [CITATION]. There, a different
panel of this district found that an “effectively anonymous” tip “did not support a finding of
reasonable suspicion” and “reverse[d] the trial court’s denial of [the defendant’s] motion to
suppress.” Id. ¶ 18. The tip in [CITATION] came from a Chicago Park District security guard who
informed a Chicago police sergeant that a man, “described as black, about five-and-a-half feet tall,
wearing a purple shirt and black jeans” was in the park with a gun in his pocket. Id. ¶ 1. That
sergeant then relayed this information to two Chicago police officers, who found someone
matching that description within two to three minutes. Id. Those officers conducted a Terry stop
and frisk on the defendant and recovered a firearm. Id. ¶ 2.
¶ 57 The tip in [CITATION] has one significant commonality with the tip in J.L., which is that the
tipster did not provide any basis for their knowledge that a weapon was concealed on either of the
respective defendants. That commonality is not present here where the 911 caller specifically
stated that the individual was “flashing a gun” outside of a gas station and the dispatch call also
relayed that same phrasing to the responding officers in this case. Certainly, this does not constitute
demonstrative proof of illegality. See [CITATION] (quoting [CITATION]) (Reasonable suspicion does not require police
to “ ‘rule out the possibility of innocent conduct.’ ”). However, it is more sufficient than the mere
statements in [CITATION] and J.L. of a person in possession of a gun without explaining how the tipster
knew that information and how that conduct implicated potential criminal activity.
¶ 58 The State relies, instead, on [CITATION], a recent case in which our
supreme court assessed the reliability of an anonymous tip. There, officers received a dispatch,
- 20 - No. 1-22-1562
like here, from the OEMC stating that an anonymous caller reported that a white male wearing a
black jacket and hooded sweatshirt was “swinging” at two females and that he had a gun on him.
[CITATION] The caller identified the intersection at which the group was located. [CITATION] Police arrived at
the intersection two or three minutes after receiving the dispatch but did not see anyone matching
the individuals described. [CITATION] Another dispatch call came through, relaying additional
information from the caller that the group was walking two blocks north of the intersection. [CITATION]
The officers relocated to that area within two to four minutes and observed a white male matching
the caller’s description, who was holding the right side of his waistband. [CITATION] The two women were
not seen nearby, and the testifying officer did not see the defendant violate any laws. [CITATION] The officer
detained the defendant, and based on the call and his own observations, he patted down the
[SEGMENT 7]
defendant for his own safety and recovered a revolver from his waistband. [CITATION] The circuit court
denied his motion to suppress, and this court affirmed. [CITATION]
¶ 59 Our supreme court agreed, holding that the officers had the necessary reasonable suspicion
for an investigatory stop. [CITATION] Relying on Navarette v. California, [CITATION], the
court noted three indicia of reliability for anonymous tips: when the caller claims eyewitness
knowledge of criminal activity; when the time between the suspected criminal activity and the
officers’ response is brief; and when the caller uses the 911 emergency system to make their report.
[CITATION] The court found each of these present in the case before it where the tip was made through
the 911 system; it was a reasonable inference that the tipster observed the suspected criminal
activity firsthand as the tipster gave updated information through a second call; and the information
was relayed shortly after it was observed. [CITATION] The court further pointed to the officer’s
corroboration of the tip where he saw someone matching the description and he observed what
appeared to be an attempted concealment of a firearm. [CITATION]
- 21 - No. 1-22-1562
¶ 60 Additionally, the court rejected an attempt to analogize the defendant’s case to that of [CITATION] ¶ 31. The court pointed out several distinctions between the case before it and the facts in [CITATION]:
(1) the officer personally observed conduct that led him to believe that the defendant was
concealing a firearm; (2) the tip came through the 911 system; (3) the tipster seemed to have
firsthand knowledge of the suspected criminal activity; and (4) the tip involved more than just the
possession of a firearm as the tipster also stated that the individual was “swinging at” two females.
[CITATION]. As we have explained above, we find the facts before us provide greater indicia of reliability
than those in [CITATION]. Indeed, our facts share more commonalities with [CITATION] because the tip came
through the 911 system, it involved more than just possession of a firearm where the caller stated
the person had been “flashing a gun” at the gas station, and that statement suggested that the caller
personally observed the flashing of the weapon, even though not stated explicitly.
¶ 61 We also find [CITATION], to which the State also cites, instructive. The 911 caller in
[CITATION] reported that another driver ran her off the road and she identified the make, model,
license plate number, the mile marker, and the direction of travel. [CITATION] at 395-97. The police found
the matching car and pulled the defendant over about 15 minutes later. [CITATION] at 396-97. The Supreme
Court found the 911 call there distinguishable from the unknown tip in [CITATION]. In contrast to [CITATION], the
caller had firsthand knowledge of the criminal activity, the officers’ observation of the car only a
brief time later suggested the caller’s reliability, and the caller exposed herself to identification
and accountability by using the 911 system. [CITATION] at 399-401. Nonetheless, the Court admitted that
it was a “close case.” [CITATION] at 404. For the same reasons stated in regards to [CITATION], we find [CITATION]
sufficiently analogous. Although we may consider this to also be a “close case,” it is not so close
that an opposite conclusion is apparent.
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¶ 62 Defendant also argues that “predictive information” is required, but we are unaware of, and
defendant fails to point us to, a case stating that predictive information is a mandatory requirement
for anonymous tips. Rather, it seems clear from [CITATION] and [CITATION] that it is but one among
several indicia of reliability. As our supreme court stated in [CITATION], 207 Ill. 2d at 258:
“[D]eficiency or uncertainty in the reliability of the informant can be compensated for by a strong
level of detail and corroboration of the content of the tip, and vice versa.” Accordingly, courts
must weigh a number of factors and the absence or presence of one is not necessarily determinative
of the outcome.
¶ 63 Finally, we agree with defendant’s assertion that 911 calls are not per se reliable, and we
do not believe that [CITATION] or [CITATION] stand for the proposition that they are. Rather, 911 calls
merely have a stronger indicia of reliability as compared to unknown calls made outside the
emergency system because they are not traceable and do not carry the possibility of penalty if
determined to be a false report. See [CITATION], 2021 IL 125954, ¶ 26 (quoting [CITATION] and
explaining why 911 calls have a greater indicator of veracity). But, this is just one indicator of
reliability. In addition, here, the caller identified activity that could reasonably be suspected as
criminal where the person was “flashing a gun”; the description of the person was sufficiently
specific, particularly with the distinctive coloring of the sneakers; the description was corroborated
where the only person to match the description was defendant; and the officers acted upon the
dispatch call and identified the person matching the description in less than two minutes. We
acknowledge that it is not certain whether the 911 caller personally observed the suspicious
activity, but we do not consider this one factor to be determinative in this instance where other
factors weigh in favor of reliability. Thus, under our standard of review here, we cannot say that
the court’s determination that the call was reliable was against the manifest weight of the evidence.
- 23 - No. 1-22-1562
¶ 64 Defendant also argues that, because the officer initially believed the weapon to be a BB-
gun, the officers could not have had a reasonable belief that defendant had committed a crime and
therefore the officers lacked probable cause to arrest him. However, this argument does not
comport with Illinois courts’ functional application of probable cause, which “does not require a
law enforcement officer to ‘ “know” that certain items are contraband or evidence of a crime.’ ” [CITATION]
¶ 65 “Probable cause is a fluid concept that turns on the assessment of probabilities in particular
factual contexts; it is not readily, or usefully reduced to a neat set of legal rules.” [CITATION] It “
‘does not demand any showing that [a reasonable belief] be correct or more likely true than false.’
” [CITATION] (quoting [CITATION]) At the time of
the arrest, the officers believed that defendant had engaged in criminal activity by exposing a
firearm in public, the officers did not find a FOID card or CCL in defendant’s wallet, defendant
did not inform them that he possessed either, and the officers were not certain as to what type of
firearm had been recovered. These facts and circumstances, considered as a whole, are sufficient
to justify a belief that defendant had committed a crime. See [CITATION]
¶ 25; see also [CITATION], ¶ 30 (“[T]he existence of a possible
innocent explanation *** did not necessarily negate probable cause.”). Thus, the officers had
probable cause to effectuate an arrest. See [CITATION] (probable
cause rests on “commonsense considerations, and the calculation concerns the probability of
criminal activity, rather than proof beyond a reasonable doubt”).
¶ 66 Accordingly, we conclude that the trial court did not err in denying defendant’s motion to
suppress the evidence recovered during the officers’ stop and search of defendant.
¶ 67 C. Constitutional Challenge
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¶ 68 Defendant also argues that his conviction for UPWF violates the second amendment of the
Constitution as applied to him. He offers as support the United States Supreme Court’s decision
in `[CITATION]`. In particular, defendant argues
that the Illinois statute for UPWF is unconstitutional as applied to him because there is “no
historical tradition of prohibiting non-violent persons like [him] from possessing firearms.”
¶ 69 We first address the State’s contention that defendant’s as-applied challenge is forfeited
because it was raised for the first time here on appeal. Generally, the failure to raise an issue in the
trial court results in forfeiture of the issue in the reviewing court. `[CITATION]`. Facial constitutional challenges may be raised at any time; however, as-
applied constitutional challenges cannot. See `[CITATION]`. A
facial challenge alleges that the statute is unconstitutional under any set of facts, but an as-applied
challenge alleges only that the statute violates the constitution as applied to the particular set of
facts and circumstances of the case at bar. Id. ¶ 36. Because as-applied challenges are dependent
on the particular facts of the individual, “it is paramount that the record be sufficiently developed
in terms of those facts and circumstances for purposes of appellate review.” Id. ¶ 37. However,
where “[a]ll facts and circumstances to decide the defendant’s claim *** are already in the
record[,]” the claim may be raised and reviewed on appeal for the first time. `[CITATION]`; see
[SEGMENT 8]
also `[CITATION]`; but see `[CITATION]` (stating that Thompson is “completely inapposite because it concerns the
special rules governing a section 2-1401 petition”).
¶ 70 The State asserts that the record in this case does not contain all the facts and circumstances
necessary to decide defendant’s constitutional challenge. According to the State, defendant’s
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second amendment claim turns on whether he is a non-violent felon or was simply carrying the
firearm for his protection; and these issues were not litigated below. We disagree with the State.
The record contains defendant’s criminal history, and it is unclear from the State’s brief precisely
what information it would have presented were this issue litigated below. We therefore consider
the merits of defendant’s as-applied challenge on appeal. See [CITATION].
¶ 71 That said, as we explain below, we find that defendant’s as-applied constitutional challenge
fails.
¶ 72 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. Here, the statute under which defendant was convicted provides that it is a felony to
“knowingly possess on or about [one’s] person or on [one’s] land or in [one’s] own abode or fixed
place of business any *** firearm *** if the person has been convicted of a felony under the laws
of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a). According to defendant, under
Bruen, “Illinois laws criminalizing the possession of firearms by all felons cannot be constitutional
in all applications.” The State responds that “defendant misreads both Bruen and the Second
Amendment as conferring an unqualified entitlement to possess firearms without restriction.”
¶ 73 Prior to Bruen, a two-part test was utilized for evaluating the constitutionality of a firearm
regulation under the second amendment in accordance with [CITATION] and [CITATION]. In Bruen, the Court was
tasked with determining the constitutionality of New York’s firearm licensing regime, which
required applicants to establish that “proper cause” existed for licensure. [CITATION].
- 26 - No. 1-22-1562
The Court ultimately held that the regime was unconstitutional, reasoning that the “proper cause”
requirement allowed the government too much discretion to deny a license to an applicant seeking
to possess a firearm out of a generalized desire for self-defense. [CITATION] at 70. In so concluding, the
Court held that the test used since Heller was “one step too many” and rejected any means-end
analysis in the context of the second amendment. [CITATION] at 19, 24. Instead, the Court insisted upon a
test where the “plain text” and history would be the sole considerations. [CITATION] at 24. At the first step,
an individual’s conduct is presumptively protected by the constitution if the conduct is covered by
the second amendment’s plain text. [CITATION] Second, if the individual’s conduct is covered by the second
amendment, then “the government must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.” [CITATION]
¶ 74 With respect to the Bruen test, defendant asks that this court follow the reasoning of
[CITATION] for the first step of the Bruen test. There, the defendant was
convicted of being an armed habitual criminal and his prior qualifying felony convictions included
manufacture or delivery of narcotics and unlawful possession of a weapon by a felon. [CITATION] ¶¶ 1, 3.
On appeal, the defendant argued that the armed habitual criminal statute violated the second
amendment as applied to him. [CITATION] ¶ 55. As to the first step, the court first determined that the plain
text of the second amendment protects a person’s right to keep and bear arms and thus the
defendant’s possession of a firearm was “ ‘presumptively constitutional.’ ” [CITATION] ¶ 89 (quoting [CITATION] at 17-18). The court noted that, at the first step, the defendant’s status as a felon was
“irrelevant” to the analysis. [CITATION]
¶ 75 As of this writing, only two cases have agreed with [CITATION] reasoning for the first step of
the Bruen test, i.e. that felons are included in the plain text of the second amendment. See [CITATION] (adopting the reasoning of [CITATION] in finding that “the
- 27 - No. 1-22-1562
second amendment’s plain language does not exclude felons”); [CITATION]. Other than Brooks, [CITATION], and [CITATION], the jurisprudence
in this court, in cases involving both facial and as-applied constitutional challenges, is that felons
are excluded from the plain text of the second amendment and thus the Bruen test does not apply.
See [CITATION], ¶ 23 (following the majority of cases in
finding that Bruen does not apply to convicted felons); [CITATION], ¶¶ 20-21 (finding the defendant’s facial constitutional challenge to the armed habitual
criminal statute failed because Bruen does not apply to laws regulating firearm possession by
felons); [CITATION], ¶ 68 (finding that Bruen does not apply to
felons); [CITATION], ¶ 21 (finding the second amendment only
protects law-abiding citizens and therefore Bruen did not apply to the defendant’s facial
constitutional challenge to the UPWF statute); [CITATION],
¶¶ 21-22 (declining to follow Brooks and instead finding that Bruen did not apply to the
defendant’s as-applied constitutional challenge to UPWF statute); [CITATION], ¶¶ 16-17 (declining to follow Brooks and finding that the defendant’s facial
challenge to the UPWF statute failed); [CITATION], ¶ 16 (finding
that Bruen did not indicate an intent to expand the second amendment’s protection to those who
are not law-abiding citizens); [CITATION], ¶ 24 (finding that the
second amendment’s language protects only law-abiding citizens); [CITATION], ¶¶ 152-53 (finding that Bruen did not apply to the defendant’s as-applied
constitutional challenge to the UPWF statute); [CITATION], ¶ 37
(finding the Bruen test only applies to law-abiding citizens, not felons); [CITATION], ¶¶ 37-39 (finding Bruen did not apply to the defendant’s as-applied
- 28 - No. 1-22-1562
constitutional challenge under the second amendment of the unlawful use of a weapon by a felon
statute).
¶ 76 Cases rejecting Brooks first reason that the Bruen Court made clear that its test did not
apply to felons where the Court’s holding was limited to “law-abiding citizens,” a point repeated
in the opinion no fewer than 18 times. See generally [CITATION] (the six justices in the
majority repeated the phrase “law-abiding” 18 times in their majority opinion and concurrences);
see also [CITATION] (collecting federal district court cases finding
that the implication of Bruen is that the second amendment is limited to law-abiding citizens).
Further, in his concurring opinion in Bruen, Justice Kavanaugh quoted [CITATION], stating: “ ‘[N]othing
in our opinion should be taken as to cast doubt on longstanding prohibitions on the possession of
firearms by felons ***.’ ” [CITATION] (Kavanaugh, J., concurring, joined by Roberts,
C.J.) (quoting [CITATION])). This same position was endorsed in Justice Alito’s
concurrence, wherein he stated that Bruen does not “disturb[ ] anything that we said in [CITATION] or
[CITATION] *** about restrictions that may be imposed on the possession of carrying guns.” [CITATION]
(Alito, J., concurring). By this, Justice Alito alludes to a footnote in [CITATION] where the
Court referred to prohibitions on the possession of firearms by felons as “presumptively lawful
regulatory measures[.]” [CITATION]; see also [CITATION]
(reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)). Finally,
we point out that the Supreme Court’s recent decision in [CITATION], confirmed once
again that “prohibitions *** on the possession of firearms by ‘felons and the mentally ill’ are
‘presumptively lawful.’ ” [CITATION] (quoting [CITATION]). Based on the foregoing, we find that [CITATION] does not apply to defendant, as
- 29 - No. 1-22-1562
he is a convicted felon and not a law-abiding citizen. See [CITATION]
(“Bruen just does not apply” to those who are not law-abiding).
¶ 77 Further, any attempts by the defendants in recent cases to cast the language in Heller and
[SEGMENT 9]
Bruen as nonprecedential dicta—which defendant also argues in this case—have been found
unpersuasive. See [CITATION]. Either
the language has not been considered dicta pursuant to the Eleventh Circuit Court of Appeals’
decision in United States v. Rozier, 598 F.3d 768, 770-71 n.6 (11th Cir. 2010), which rejected such
a proposition as to Heller’s text, or it is considered judicial dicta from the Supreme Court and
should be afforded considerable weight in the lower courts, pursuant to [CITATION]. We agree
that the language in the foregoing Supreme Court cases should be followed because “[e]ven obiter
dictum of a court of last resort can be tantamount to a decision and therefore binding in the absence
of a contrary decision of that court.” [CITATION]; see also [CITATION] (stating it will heed the Supreme Court’s statement regarding firearms
prohibitions for felons even if dicta). Accordingly, as we concluded in our recent decision in
[CITATION], “[w]e presume that the Supreme Court’s inclusion of ‘law-abiding’ in the holding is not
superfluous or irrelevant, especially given the Court’s repeated use of the phrase throughout the
Bruen opinion, as well as its prior decisions.” [CITATION]; see also [CITATION] (“[T]he Court’s language in Bruen supports the validity
of its dictum in Heller.”).
¶ 78 Even were we to find that the Bruen test applies to felons like defendant, we would
nonetheless find that defendant’s as-applied constitutional challenge to the UPWF statute fails at
- 30 - No. 1-22-1562
the second step. Defendant argues that there is no historical basis for prohibiting a person like him
from exercising his second amendment right based on a prior non-violent drug conviction.
However, thus far, no case from this court has concluded that prohibition on firearms possession
for felons is unconstitutional as applied to nonviolent felons, and defendant has failed to convince
us to be the first. As we explain below, we conclude that the UPWF statute passes constitutional
muster as applied to defendant.
¶ 79 In [CITATION] and [CITATION], the Second District rejected this same argument for two reasons. First,
the court in both cases pointed out that the Supreme Court did not place any qualifiers on the term
“felons” or make any distinction between violent and non-violent felons in either [CITATION] or
[CITATION], ¶ 27;
see also [CITATION] (observing that “[f]elonies
encompass a wide variety of non-violent offenses, and we see no reason to think that the [United
States Supreme Court] meant ‘dangerous individuals’ when it used the word felon” in [CITATION]).
Second, the court in both cases agreed with the [CITATION] court’s conclusion that there was a
sufficient historical tradition to support our legislature’s prohibition of firearm possession by
convicted felons. [CITATION], ¶ 27.
¶ 80 Turning to [CITATION], we note that defendant disagrees with the [CITATION] court’s conclusion as
to the historical analysis and argues that the court failed to cite “any law from around the time the
Second Amendment was adopted that permanently disqualified felons from possessing
firearms[.]” We reject defendant’s invitation to depart from [CITATION] as to the second step of the
Bruen test.
- 31 - No. 1-22-1562
¶ 81 At the second step, the court reviewed the historical record of restrictions for possession of
firearms. [CITATION]. 3 The court then concluded that “such
categorical restrictions [were] inextricably linked to the notion of ‘law abiding citizens.’ ” [CITATION].
In particular, the court found that there was “widespread acceptance of the legislatures’ authority
to disarm felons” during the founders’ era and the “majority of legal historians” agreed that the
right to bear arms “turned on one’s law-abiding character.” [CITATION]. Additionally, the court
specifically addressed the minority view “that traditionally regulation of firearms possession was
an effort to address a risk of dangerousness *** such that it would not apply to the defendant as a
nonviolent felon[.]” [CITATION]. The court found that there was no historical requirement that an
individual be deemed dangerous before prohibiting his or her from possessing a firearm and the
more recent legislative history supported the same conclusion. [CITATION]. Ultimately, the
court held that the armed habitual criminal statute was “consistent with the national historical
tradition of firearm regulation” and, therefore, was constitutional as applied to the defendant. [CITATION].
¶ 82 We do not find defendant’s argument that the court failed to cite “any law from around the
time the Second Amendment was adopted that permanently disqualified felons from possessing
firearms” persuasive. The Supreme Court in [CITATION] reiterated that the legislative precursors to a
challenged regulation need not be a “ ‘dead ringer’ ”; rather, they must only be considered “
‘analogous enough to pass constitutional muster.’ ” [CITATION] (quoting [CITATION]).
Moreover, the [CITATION] Court explained that its recent second
The court also reviewed Supreme Court precedent on the prohibition of firearm possession for
felons, particularly the Supreme Court’s reliance on the phrase “law-abiding citizens.” [CITATION]. This is the
same precedent discussed and relied upon for the first step of the [CITATION]; however, the [CITATION] court
utilizes that same rationale only in the second step. See infra ¶¶ 76-79.
- 32 - No. 1-22-1562
amendment precedents “were not meant to suggest a law trapped in amber” and the second
amendment “permits more than just those regulations identical to ones that could be found in
1791.” Id. at ___, 144 S. Ct. at 1897-98. In accordance with the Supreme Court’s requirements,
the Brooks court aptly traced the historical roots of prohibitions on firearm possession for felons
back to the Founding Era and found sufficient support for firearms restrictions for felons, such as
the armed habitual criminal statute at issue there and the UPWF statute before us.
¶ 83 Accordingly, of our own volition, we find no reason to depart from the well-reasoned
decisions set forth above, and defendant has not convinced us that there is any reason to do so.
Thus, we conclude that the UPWF statute satisfies the second step under Bruen. Specifically, we
agree that, historically, legislatures have categorically banned individuals from possession of
firearms based on lawfulness, a felon’s dangerousness has not been a consideration in prohibiting
the felon from possessing a firearm, and the Supreme Court has also made no such distinction in
implicitly approving bans on firearms possession for felons. As such, defendant’s nonviolent
criminal history does not affect the constitutionality of the UPWF statute and thus the statute is
constitutional as applied to defendant. See also [CITATION]
(following Brooks in concluding that the UPWF statute was constitutional as applied to the
defendant).
¶ 84 III. CONCLUSION
¶ 85 For the reasons stated, we affirm the judgment of the circuit court.
¶ 86 Affirmed.
- 33 -
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 230377-U
Order filed September 20, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-23-0377
v. ) Circuit No. 22-CF-492
)
TERENCE L. MILLER, ) Honorable
) Howard C. Ryan Jr.,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices Holdridge and Albrecht concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: (1) The evidence was sufficient to prove defendant knowingly possessed firearms.
(2) The statute under which defendant was convicted is facially constitutional.
(3) The statute is constitutional as applied to defendant. (4) The statute does not
violate the Illinois Constitution either facially or as applied.
¶2 Defendant, Terence L. Miller, appeals his unlawful use of a weapon by a felon (UUWF)
convictions, arguing: (1) the State’s evidence failed to prove beyond a reasonable doubt that he
knowingly possessed the firearms found inside the vehicle he was driving, and (2) the UUWF statute criminalizing the possession of weapons by felons is unconstitutional both facially and as
applied to him. We affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged by indictment with four counts of UUWF (720 ILCS 5/24-1.1(a)
[SEGMENT 10]
(West 2022)). On April 3, 2023, the case proceeded to a bench trial. At trial, former La Salle
County Sheriff’s Deputy Jaydyn Hawley testified that on December 9, 2022, at approximately 9:54
p.m., he conducted a traffic stop on a vehicle for failure to make a complete stop at a stop sign.
Defendant was the driver and sole occupant of the vehicle. Hawley observed cannabis in the cup
holder of the center console and asked defendant to exit the vehicle. After a police canine alerted
to the presence of narcotics, Hawley detained defendant and searched the vehicle. While standing
outside the vehicle, Hawley looked into the backseat through the open driver’s side rear door and
observed a Westend leather bag “sitting up against the back of the center console where usually
the cup holders or the rear vents for the second row is.” The Westend bag was positioned between
two plastic shopping bags. One shopping bag contained feminine hygiene products and the other
contained hair gel and a lighter lanyard. Hawley testified that the top of the leather bag was
unzipped, and he was able to see the handle of a firearm inside the bag. Hawley searched the bag
and found two 9-millimeter handguns, one was loaded, and a magazine containing seven rounds
of ammunition. Hawley stated the firearms were easily within reach of defendant while seated in
the driver’s seat of the vehicle.
¶5 On cross-examination, Hawley confirmed he had been alerted by another officer during the
vehicle search that a Black male was “lurking around.” When Hawley approached the individual
to speak with him, he disappeared around the corner. Hawley further testified that defendant’s
girlfriend, Kimberly Teasley, was the registered owner of the vehicle. The handguns found inside
the vehicle were not tested for fingerprints and were not registered to defendant.
¶6 In addition to Hawley’s testimony, the State introduced a video recording of the traffic stop
taken from the dashboard camera in the squad car. In the video, defendant told Hawley he was on
parole and asked repeatedly for his phone to call his lawyer. When Hawley informed defendant he
would be conducting a search of the vehicle, defendant argued that he could not perform a search
because the vehicle belonged to his girlfriend.
¶7 After the court denied defendant’s motion for a directed verdict, Teasley testified that the
Westend bag found in her vehicle belonged to defendant’s brother, Tevin Miller. Teasley stated
that on the day in question, defendant went shopping with Tevin in Rockford. Defendant called
Teasley after he was pulled over by Hawley. Using a cell phone tracking application, Teasley was
able to determine defendant’s location and shared that information with Tevin. On cross-
examination, Teasley admitted that the written statement Tevin had provided to defense counsel
was written by her because Tevin had bad handwriting.
¶8 Prior to his testimony, Tevin confirmed he was the defendant in a pending criminal case
and the court admonished him about his fifth amendment right against self-incrimination. Tevin
testified that he owned the handguns but had no receipts or paperwork because he had purchased
them “off the street.” Tevin stated he had placed the guns in the vehicle when defendant picked
him up to take him shopping for clothes in Aurora. Tevin did not tell defendant about the guns
because he knew defendant “wouldn’t want one” and he did not want to “put [defendant] in a
predicament” because defendant could not possess firearms. Tevin stated that he left the guns in
the vehicle when he returned to his home in La Salle because he did not want them around his
three-year-old son. When asked if he had disclosed to defendant at any point that he had left the
guns behind the center console, Tevin stated he had not “[b]ecause I know if I told him, he was
going to play with them or want to fuck with them or *** he would want to mess with them, play
with them, and that’s not something that he could be around.” Tevin testified he believed defendant
was going to return home after dropping him off, and he would not have left the guns in the vehicle
if he knew defendant was going to continue driving.
¶9 On cross-examination, Tevin stated that he kept the bag containing the firearms by the
passenger seat door as he was sitting in the vehicle. Tevin later “hid” the unzipped bag behind the
center counsel when defendant entered a gas station. After, a friend called to tell him defendant
had been pulled over, Tevin went to the scene of the traffic stop but did not speak to the police and
admitted he ran from them.
¶ 10 Tevin explained that he asked Teasley to write his statement because he was at work and
his hand was oily. When asked why his written statement indicated he went shopping in Rockford,
Tevin stated he and defendant travelled through Rockford on their way to Aurora. When asked
why he claimed in his written statement that Teasley had informed him about the traffic stop, Tevin
testified he had received a call from Teasley after he was notified by his friend that defendant had
been pulled over.
¶ 11 Tevin initially testified that he owned a Nike, a Tommy Hilfiger, and an Everlast bag. After
the State presented a photograph of the Westend bag that contained the firearms, Tevin stated he
had a Tommy Hilfiger, a Westend, and a Nike bag. On redirect, Tevin said that he and defendant
first went to Rockford to visit a store and then headed to Aurora to continue shopping.
¶ 12 The court found defendant guilty on all counts, noting he was the sole occupant of the
vehicle and was seated in close proximity to the guns. The court reasoned that the immediate
visibility of the handle of the gun in the unzipped bag, the bag’s position between the two shopping
bags containing personal items presumably purchased by defendant while running errands, and the
vehicle being owned by Teasley demonstrated defendant had knowledge of the guns. The court
indicated it did not find Tevin to be a credible witness.
¶ 13 Defendant’s presentence investigation report (PSI) showed prior felony convictions for
numerous offenses including residential burglary, home invasion, battery, domestic battery, and
aggravated battery. At sentencing, two of the four counts merged, and the court imposed two
concurrent terms of six years’ imprisonment on the remaining counts. Defendant appeals.
¶ 14 II. ANALYSIS
¶ 15 A. Sufficiency of the Evidence
¶ 16 On appeal, defendant first argues the evidence presented at trial was insufficient to prove
he knowingly possessed the two handguns found inside the vehicle. Challenges to the sufficiency
of the evidence require the reviewing court to determine, after viewing the evidence and all
reasonable inferences therefrom in the light most favorable to the prosecution, whether any rational
trier of fact could have found the essential elements of the offense were proven beyond a
reasonable doubt. [CITATION], ¶ 23. It is not the function of this
court to retry the defendant and our judgment will not replace that of the trier of fact on issues
involving the weight of the evidence or the credibility of witnesses. [CITATION], ¶ 28. A criminal conviction will not be reversed absent evidence so unreasonable or
improbable as to justify a reasonable doubt of defendant’s guilt. Id.
¶ 17 For defendant to be found guilty of UUWF, the State was required to prove he knowingly
possessed a firearm and had a prior felony conviction. See 720 ILCS 5/24-1.1(a) (West 2022);
[CITATION]. Defendant does not dispute he was previously
convicted of a felony. Rather, defendant contends the evidence failed to demonstrate he knowingly
possessed a firearm under the State’s theory of constructive possession. To establish constructive
possession, the State needed to show defendant: (1) had immediate and exclusive control over the
area where the weapon was found, and (2) had knowledge of the presence of the weapon. See id.
at 899-900.
¶ 18 Knowledge may be proven by circumstantial evidence. [CITATION],
¶ 25. While a defendant’s mere presence in the same vehicle where a weapon is found cannot alone
establish knowledge, defendant’s proximity to the weapon can be considered when determining
constructive possession. Id. Additional factors from which knowledge can be inferred include: “(1)
the visibility of the weapon from defendant’s location in the vehicle, (2) the amount of time in
which defendant had an opportunity to observe the weapon, (3) gestures or movements made by
defendant that would suggest an effort to retrieve or conceal the weapon, and (4) the size of the
weapon.” [CITATION].
¶ 19 Here, defendant’s immediate and exclusive control over the location where the weapons
were found as the sole occupant of the vehicle “gives rise to an inference that he possessed the
weapons.” See [CITATION], ¶ 32. Based on Hawley’s testimony,
the guns were readily accessible to defendant, as the Westend bag was within reach of the driver’s
seat. Although the guns were positioned behind the driver’s seat, one was partially visible from
inside the Westend bag when looking into the back seat of the vehicle. The shopping bags
positioned on either side of the Westend bag likely belonged to defendant, as the bags contained
[SEGMENT 11]
personal items other than clothing and remained in the car after Tevin went home. Considering the
length of time defendant spent in the car travelling to several different cities to shop and run
errands, coupled with the placement of the shopping bags, a reasonable inference can be made that
defendant had an opportunity to see the guns inside the unzipped bag. The record does not indicate
defendant made any discernible gestures or movements to retrieve or conceal the guns; however,
he did attempt to prevent a search of the vehicle by claiming the police could not lawfully search
it because the vehicle belonged to Teasley. Additionally, the court’s finding that Tevin was
incredible as a witness was not unreasonable based on the inconsistencies in his testimony. See
[CITATION] (criminal possession issue turns on the
factfinder’s determination as to the credibility of the witnesses and the weight given to their
testimony). Therefore, the evidence presented at trial is sufficient to conclude defendant had
constructive possession of the weapons found in the vehicle.
¶ 20 In coming to this conclusion, we reject defendant’s argument that the evidence presented
was “ambiguous” as to the location of the bag. Hawley testified that the bag was “sitting up against
the back of the center console where usually the cup holders or the rear vents for the second row
is.” He indicated that they were readily accessible to defendant from where he sat in the driver’s
seat. This painted a sufficient picture for the trier of fact without any photographs. Moreover, we
reject defendant’s discussion of photographs of a similar SUV that were not included in the trial
court record.
¶ 21 B. Constitutionality of UUWF Statute
¶ 22 Next, defendant contends that the UUWF statute is unconstitutional both facially and as
applied to him in light of the United States Supreme Court’s recent decision in [CITATION]. Defendant argues that [CITATION] requires
the State to affirmatively prove the UUWF statute “is part of the historical tradition that delimits
the outer bounds of the right to keep and bear arms” because it restricts the right to bear arms
provided under the second amendment of the United States Constitution (U.S. Const., amend. II).
See Bruen, 597 U.S. at 19. Defendant asserts that the State cannot meet this burden because Illinois
did not criminalize the possession of a firearm by a felon until 1967.
¶ 23 Statutes are presumed to be constitutional and must be construed to uphold their
constitutionality whenever reasonably possible. [CITATION], ¶ 19.
Therefore, the burden of establishing that a statute is constitutionally invalid lies with the
challenging party. [CITATION], ¶ 29. Whether a statute is constitutional is
a matter of law that is reviewed de novo. Id.
¶ 24
. United States Constitution
¶ 25 a. Facial Challenge
¶ 26 A statute is unconstitutional on its face “only if no set of circumstances exists under which
it would be valid.” [CITATION], ¶ 29. Using the historical tradition
framework set forth by the Supreme Court in Bruen, we recently upheld the facial constitutionality
of the UUWF statute. [CITATION], ¶ 33. Bruen established a two-
pronged analysis for determining whether a statute regulating firearms is constitutional. Bruen,
U.S. at 26-27. The first prong of the Bruen test requires a determination as to whether
defendant’s conduct falls within the plain text of the second amendment and, if so, the second
prong considers whether there is a justification for the regulation rooted in the nation’s history and
tradition. Id.; [CITATION], ¶ 24. After applying the Bruen test to the UUWF
statute in [CITATION], we concluded that: (1) felons are not excluded from the plain text meaning of
“the people” to whom the second amendment applies, and (2) there is a longstanding history and
tradition of analogous regulations disarming potentially dangerous individuals that date back to
America’s founding era. [CITATION], ¶ ¶ 25, 33. We adopt [CITATION], here, and
hold that that the UUWF statute is facially constitutional under the United States Constitution.
¶ 27 b. As-Applied Challenge
¶ 28 As-applied constitutional challenges generally rely on circumstances and facts specific to
defendant and therefore must first be raised in the circuit court to develop a record sufficient for
appellate review. [CITATION], ¶ 39. As a threshold matter, defendant
acknowledges he did not assert his constitutional claims prior to this appeal. The State argues that
defendant’s failure to raise his as-applied challenge amounts to forfeiture, as the record is
insufficiently developed for review because there is no indication as to whether defendant’s prior
felony convictions involved the use of a firearm. We disagree. Though the specific facts underlying
much of defendant’s criminal history may be unknown, defendant’s undisputed criminal history is
otherwise contained in the record.
¶ 29 Defendant’s as-applied challenge is difficult to discern from his facial challenge, which it
largely mirrors. Defendant does not present any particular facts that demonstrate how the UUWF
statute violates his constitutional second amendment right to bear arms as applied to him, except
to observe that the instant charged offense of UUWF did not in itself involve the use of violence.
This observation, however, ignores the relevance of defendant’s criminal history, which includes
unrelated felony convictions for residential burglary, aggravated battery and home invasion. This
felony history renders defendant “precisely the type of person the government has historically and
traditionally sought to disarm.” [CITATION] 1
¶ 30
. Illinois Constitution
During the pendency of this appeal, the U.S. Supreme Court issued a decision in [CITATION],
upholding a federal statute that prohibited certain individuals subject to a
domestic violence restraining order from possessing a firearm. After reviewing [CITATION] and the parties’ related
supplemental briefs, we determine that decision does not change the above analysis.
¶ 31 Defendant further claims that the UUWF statute violates article I, section 22, of the Illinois
Constitution facially and as applied to him. Article I, section 22, provides: “Subject only to the
police power, the right of the individual citizen to keep and bear arms shall not be infringed.” Ill.
Const. 1970, art. I, § 22. In [CITATION], we held the UUWF statute is “a proper exercise of the state’s
police power, which allows the state to exert, through legislation, control over the dangers posed
by firearms and the people who might use them to do harm.” [CITATION],
¶ 43. Accordingly, the UUWF statute is valid under the Illinois Constitution both facially and as
applied to defendant as a convicted felon.
¶ 32 III. CONCLUSION
¶ 33 The judgment of the circuit court of La Salle County is affirmed.
¶ 34 Affirmed.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 230433-U
Order filed September 19, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-23-0433
v. ) Circuit No. 22-CF-1624
)
JUAN J. MORALES, ) Honorable
) Vincent F. Cornelius,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAVENPORT delivered the judgment of the court.
Justices Holdridge and Hettel concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The statute criminalizing the possession of weapons by felons is constitutional on
its face.
¶2 Defendant, Juan J. Morales, appeals his conviction for unlawful possession of a weapon by
a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2022)), arguing the statute governing the offense is
facially unconstitutional. Defendant contends prohibiting felons from possessing firearms under
the UPWF statute infringes on the constitutionally protected right to bear arms and is inconsistent
with this country’s historical tradition of firearm regulation. We disagree and affirm. ¶3 I. BACKGROUND
¶4 After a bench trial, the trial court found defendant guilty of UPWF (id.), two counts of
aggravated unlawful use of a weapon (AUUW) (id. § 24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C)), and
driving while license revoked (625 ILCS 5/6-303 (West 2022)). At sentencing, the court merged
the AUUW counts into the UPWF count. It sentenced defendant to concurrent terms of three years
for UPWF and one year for driving while license revoked. This appeal followed.
¶5 II. ANALYSIS
[SEGMENT 12]
¶6 Defendant contends the UPWF statute (720 ILCS 5/24-1.1(a) (West 2022)) is facially
unconstitutional in light of the United States Supreme Court’s decision in [CITATION].
¶7 We presume statutes are constitutional. [CITATION], ¶ 19.
Whenever reasonably possible, we must interpret statutes to uphold their constitutionality. Id.
Therefore, the challenging party bears the burden of establishing that a statute is constitutionally
invalid. [CITATION], ¶ 29. A statute is only facially unconstitutional “if
no set of circumstances exists under which it would be valid.” [CITATION], ¶ 29. We review de novo whether a statute is constitutional. [CITATION], ¶ 19.
¶8 The second amendment to the United States Constitution provides, “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const., amend. II. This fundamental right has limitations.
[CITATION], 595 (2008). In [CITATION], the Supreme Court established
a two-step analysis for determining the constitutionality of a statute regulating firearms. [CITATION], 26-27. First, courts must determine whether the defendant’s conduct falls within the
second amendment’s plain text. Id.; [CITATION], ¶ 24. Second,
courts must evaluate “whether ‘historical precedent’ from before, during, and even after the
founding evinces a comparable tradition of regulation.” [CITATION]. “Determining whether historical regulations are properly analogous to a modern
firearm regulation requires courts to decide whether the two regulations are ‘relevantly similar.’ ”
Travis, 2024 IL App (3d) 230113, ¶ 24 (quoting [CITATION]). Bruen’s second step
focuses on “ ‘how and why the regulations burden a law-abiding citizen’s right to armed self-
defense.’ ” Id. (quoting [CITATION]).
¶9 The UPWF statute satisfies Bruen’s first step because the possession of a firearm falls
squarely within the second amendment’s plain text. See [CITATION]. We recently reached the same conclusion in Travis. [CITATION], ¶ 25. We also concluded there exists a historical analogue to the UPWF statute.
Id. ¶ 33.
¶ 10 Defendant agrees with Travis to the extent we held “the people” protected by the second
amendment includes those with a felony conviction. However, defendant argues the UPWF statute
has no historical analogue because its permanent ban on firearm possession based on felon status
is inconsistent with precursory dispossession regulations that traditionally permitted lifting status-
based prohibitions under qualifying circumstances.
¶ 11 We reject defendant’s contention for two reasons. First, the UPWF statute is not an absolute
permanent ban because it contains an express exception for those who have obtained relief under
section 10 of the Firearm Owners Identification Card Act (430 ILCS 65/10 (West 2022)). See 720
ILCS 5/24-1.1(a) (West 2022). Second, [CITATION] does not require the UPWF statute to be identical
or operate exactly as its predecessors. See [CITATION]. Our historical analysis in [CITATION]
====== End of Document ====== revealed that modern statutes criminalizing the possession of firearms by felons evolved from
preexisting, founding-era regulations that disarmed criminals and other dangerous persons. [CITATION]. The UPWF statute is consistent with this country’s history of
restricting individuals that have committed crimes from exercising the right to bear arms and
imposes virtually no burden on the right for law-abiding citizens. [CITATION]. We adhere to [CITATION]
and find the UPWF statute facially constitutional. 1
¶ 12 In reaching our conclusion, we reject defendant’s contention that our decision in [CITATION] is
distinguishable because it addresses the offense of unlawful use of a weapon by a felon (UUWF),
not UPWF. We disagree. The full title of the statute is “Unlawful use or possession of weapons by
felons or persons in the custody of the Department of Corrections facilities.” 720 ILCS 5/24-1.1
(West 2022). Whether the offense is labeled UUWF or UPWF is a distinction without a difference.
There is only one offense under the statute. [CITATION].
¶ 13 III. CONCLUSION
¶ 14 For the reasons stated, we affirm the judgment of the circuit court of Will County.
¶ 15 Affirmed.
We note that during the pendency of this appeal, the U.S. Supreme Court issued a decision in
[CITATION], in which it upheld a federal statute that prohibited individuals subject to a domestic violence restraining order from possessing a firearm. After
reviewing [CITATION] and the parties’ related supplemental briefs, we find that decision does not change the
above analysis.
2024 IL App (1st) 230606-U
FIFTH DIVISION
September 13, 2024
No. 1-23-0606
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 CR 7288
)
MONTRICE AVERY, ) Honorable
) Steven G. Watkins,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court.
Justices Mitchell and Navarro concurred in the judgment.
ORDER
¶1 Held: The trial court judgment is affirmed where (1) defendant’s as-applied constitutional
challenge is forfeited, and (2) the unlawful use or possession of a weapon by a felon
statute is not unconstitutional on its face.
¶2 Following a jury trial, defendant Montrice Avery was found guilty of unlawful use or
possession of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2020)) and sentenced to
two years in prison. On appeal, Mr. Avery argues that his conviction is unconstitutional both
facially and as applied to him under [CITATION]. We affirm. No. 1-23-0606
¶3 I. BACKGROUND
¶4 Mr. Avery was charged by information with multiple offenses arising from his possession
of a firearm on July 7, 2020. The State proceeded on one count of UUWF premised upon Mr.
Avery having been previously convicted of felony escape in 2012.
¶5 At trial, Chicago police officer Michael Mendez testified that on July 7, 2020, he and his
partner, Officer Edgar Escobar, responded to a call regarding “a person with a gun” near Central
Avenue and West End Avenue in Chicago. When they arrived in the area in a marked squad
vehicle, Officer Mendez saw Mr. Avery, whom he identified in court, walking northbound on
Central Avenue. Mr. Avery “was manipulating” zippers on a bag on his chest. Officer Mendez
ordered Mr. Avery to “keep his hands up,” but Mr. Avery fled. Officers Mendez and Escobar
pursued on foot and eventually, Officer Escobar “secure[d]” Mr. Avery.
¶6 The State introduced Officer Mendez’s body camera footage, which is in the record on
appeal and has been viewed by this court. In the footage, Officer Mendez chases Mr. Avery into a
gangway. As Mr. Avery enters the gangway, a black handgun falls to the ground from his person.
¶7 Officer Escobar testified consistently with Officer Mendez regarding their encounter with
Mr. Avery. The State introduced Officer Escobar’s body camera footage, which depicted the same
events.
¶8 Officer Gonzalez testified that he followed Officers Mendez and Escobar and saw a black
handgun drop from “in front of” Mr. Avery. Officer Gonzalez recovered the firearm, which was
loaded with a live round chambered.
¶9 The State entered a stipulation that Mr. Avery had a prior felony conviction. The State
informed the judge that the conviction involved a 2012 escape from electronic monitoring, but the
specific felony was not communicated to the jury.
No. 1-23-0606
¶ 10 The jury found Mr. Avery guilty of UUWF. The court denied Mr. Avery’s motion and
amended motion for a new trial.
¶ 11 Mr. Avery’s presentence investigative report (PSI) listed nine prior convictions from 1998
through 2017, including seven convictions for possession of cannabis or other controlled
substances, one for obstructing identification, and the stipulated escape from electronic
monitoring. After a hearing, the court sentenced Mr. Avery to two years in prison.
¶ 12 II. JURISDICTION
[SEGMENT 13]
¶ 13 Mr. Avery was sentenced on February 27, 2023, and timely filed his notice of appeal on
March 28, 2023. We have jurisdiction over this appeal under article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)
and Rule 606 (eff. Mar. 12, 2021), governing appeals from final judgments in criminal cases.
¶ 14 III. ANALYSIS
¶ 15 On appeal, Mr. Avery argues that the UUWF statute is unconstitutional on its face under
the second amendment to the United States Constitution because it does not comply with the
framework established by the United States Supreme Court in Bruen. He also argues that the
UUWF statute is unconstitutional as applied to him because his prior convictions do not establish
that he was the type of “presently-dangerous individual” for whom the framers of the Constitution
permitted disarmament.
¶ 16 Here, Mr. Avery was convicted of UUWF under section 24-1.1(a), which provides that
“[i]t is unlawful for a person to knowingly possess on or about his person *** any firearm *** if
the person has been convicted of a felony.” 720 ILCS 5/24-1.1(a) (West 2020). Relevant here, Mr.
Avery was convicted of felony escape from electronic monitoring in 2012.
¶ 17 The constitutionality of a statute is a matter of law, which we review de novo. [CITATION]
No. 1-23-0606
[CITATION]. In analyzing a challenge to the constitutionality of a statute, “we
begin with the presumption that the statute is constitutional and that, if reasonably possible, this
court must construe the statute so as to affirm its constitutionality and validity.” Id.
¶ 18 A party raising a facial challenge to the constitutionality of a statute “faces a particularly
heavy burden,” because “[a] statute will be deemed facially unconstitutional only if there is no set
of circumstances under which the statute would be valid.” [CITATION],
¶ 10. Therefore, a facial challenge fails if any situation exists where the statute could be validly
applied. [CITATION], ¶ 25. In contrast, an as-applied challenge “requires a
showing that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” [CITATION], ¶ 36.
¶ 19 The second amendment provides: “A well regulated Milita, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION] (2008), holding that the second amendment elevated “the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” [CITATION] at 635.
The second amendment applies to the States through the fourteenth amendment of the United
States Constitution. [CITATION] (2010).
¶ 20 Under [CITATION] and [CITATION], courts developed a two-step test to assess second amendment
challenges to firearm regulations. See [CITATION], ¶ 11. First, the
government could justify the regulation by establishing whether the regulated activity fell outside
the scope of the second amendment as it was originally understood. Id. If the conduct fell beyond
the second amendment’s original scope, it was “categorically unprotected.” Id. Otherwise, the
court would progress to the second step and conduct a “means-end analysis” where the court
No. 1-23-0606
weighed the severity of the regulation against the ends the government sought to achieve in
enacting the regulation. Id.
¶ 21 In Bruen, the United States Supreme Court announced a new analytical framework for
evaluating the constitutionality of firearm regulations under the second amendment. [CITATION],
¶ 68 (citing Bruen, 597 U.S. at 17). Under Bruen, a court must
first determine whether “the Second Amendment’s plain text covers an individual’s conduct.”
Bruen, 597 U.S. at 24; [CITATION], ¶ 69. If it does, then the Constitution
“presumptively protects that conduct” and the government must justify the regulation by showing
that it is consistent with the nation’s historical tradition of firearm regulation. Bruen, 597 U.S. at
24; [CITATION], ¶ 69. To make this showing, the government must point to
historical precedent which establishes what the founders understood the second amendment to
mean. Bruen, 597 U.S. at 24-25; [CITATION], ¶ 70.
¶ 22 As an initial matter, the State argues that Mr. Avery forfeited his as-applied constitutional
challenge because he raises it for the first time on direct appeal. See [CITATION], ¶ 32, overruled on other grounds by [CITATION]) (“[A] defendant
must present an as-applied constitutional challenge to the trial court in order to create a sufficiently
developed record.”).
¶ 23 We agree with the State, as the record is not sufficiently developed for us to review Mr.
Avery’s as-applied constitutional challenge. “[A]s-applied constitutional challenges are dependent
on the specific facts and circumstances of the challenging party and, therefore, it is paramount that
the record be sufficiently developed in terms of those facts and circumstances for purposes of
appellate review.” (Internal quotation marks omitted.) [CITATION], ¶ 27.
Here, Mr. Avery premises his as-applied challenge on the contention that the founders permitted
No. 1-23-0606
disarmament only for persons who were presently dangerous, not for persons who were mere
felons. He argues his prior convictions do not establish he is the type of presently dangerous
individual for whom the framers intended disarmament.
¶ 24 However, at trial, Mr. Avery stipulated to his felon status, so the trial court made no factual
findings regarding his other prior convictions and how they related to his present as-applied claim.
As such, Mr. Avery’s as-applied constitutional challenge is premature. See id. ¶ 31 ([CITATION], “we find [the] defendant’s as-applied constitutional challenge
premature.”); see also Ill. S. Ct. R.
23(e)(1) (eff. Feb. 1, 2021) (unpublished orders entered on or after January 1, 2021, may be cited
for persuasive purposes).
¶ 25 Regarding Mr. Avery’s facial challenge, he has not established that the UUWF statute
could not be validly applied to any defendant. This court has interpreted Bruen in the context of
UUWF and has determined that Bruen does not apply to felons, because the holding was limited
to laws affecting “law-abiding citizens.” See [CITATION]); see also
[CITATION], ¶¶ 27-29 (same). As the UUWF statute could be
validly applied to the defendants in [CITATION], Mr. Avery’s facial challenge to the statute
must also fail. See [CITATION]);
see also [CITATION]).
No. 1-23-0606
challenge to the UUWF statute using the reasoning in Baker).
¶ 26 Mr. Avery requests we depart from our holdings in Baker and Mobley, and instead follow
the reasoning in [CITATION], ¶ 89, where we found that a
defendant’s status as a felon is irrelevant under the first step of the Bruen analysis and “is more
properly evaluated under the second step’s historical tradition analysis.” But even if we did follow
[CITATION], sufficient historical precedent exists to ban felons from possessing firearms. See [CITATION], ¶¶ 27-33 (finding that the UUWF statute was “consistent with
this nation’s history of preventing potentially dangerous individuals from exercising the right to
bear arms,” and so was facially constitutional).
¶ 27 After this appeal was fully briefed, we granted Mr. Avery’s motion for leave to cite [CITATION],
as additional authority. The Supreme Court
in [CITATION] held that a federal statute prohibiting individuals subject to domestic violence restraining
orders from possessing firearms was constitutional on its face because “the Second Amendment
permits the disarmament of individuals who pose a credible threat to the physical safety of others.”
[CITATION] The court in [CITATION] rejected the government’s interpretation
that the defendant may be disarmed simply because he was not “responsible.” [CITATION]
¶ 28 Mr. Avery contends that [CITATION] supports his contention that the UUWF statute was
unconstitutional because its ban on firearm possession based on felon status, irrespective of
contemporary dangerousness, is inconsistent with the second amendment regulatory tradition. He
also contends that the nine Supreme Court justices rejected the argument that the second
amendment applied only to “law-abiding, responsible” citizens, and this court therefore should
reject the State’s argument that the second amendment permits restrictions aimed at citizens who
No. 1-23-0606
are not “ ‘law-abiding and responsible,’ ” or who are not “ ‘virtuous.’ ”
¶ 29 Notwithstanding Mr. Avery’s assertion to the contrary, Rahimi did not reject the view that
[SEGMENT 14]
the second amendment applies only to “law-abiding, responsible” citizens as Mr. Avery contends.
It merely rejected the government’s contention that a defendant may be disarmed simply because
he was not “responsible,” finding the word vague, and made no mention of the phrase “law-
abiding” whatsoever. The only mention of “law-abiding” is in the Rahimi dissent, which uses the
term in the context of setting forth the government’s argument—“that the Court already held the
Second Amendment protects only ‘law-abiding, responsible citizens,’ ”—which the dissent found
specious. See [CITATION].
¶ 30 Mr. Avery here was not merely “irresponsible,” but had been previously convicted of a
felony, and the Rahimi court confirmed that prohibitions on the possession of firearms by felons
were “presumptively lawful.” [CITATION]. “[W]e do not suggest that the Second
Amendment prohibits the enactment of laws banning the possession of guns by categories of
persons thought by a legislature to present a special danger of misuse.” [CITATION]. Accordingly, Rahimi supports our conclusion that the UUWF statute is constitutional on its
face.
¶ 31 IV. CONCLUSION
¶ 32 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 33 Affirmed.
2024 IL App (2d) 230305-U
No. 2-23-0305
Order filed September 11, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-2125
)
JIMMY M. MARTINEZ, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE KENNEDY delivered the judgment of the court.
Justices Hutchinson and Birkett concurred in the judgment.
ORDER
¶1 Held: Defendant’s second-amendment challenge to the statute criminalizing a felon’s
possession of a firearm fails because (1) the amendment’s protection is reserved for
law-abiding citizens and (2) even if felons fall within the letter of the second
amendment, the challenged statute is valid because it is consistent with our Nation’s
history of firearms regulation, in which there is precedent for disarming groups
deemed potentially dangerous.
¶2 Defendant, Jimmy Martinez, appeals from his convictions of unlawful use or possession of
a weapon by a felon (UUPWF) (720 ILCS 5/24-1.1 (West 2018)). He contends that, under [CITATION], the UUPWF statute on its face 2024 IL App (2d) 230305-U
violates the second amendment to the United States Constitution (U.S. Const., amend II) and, thus,
his convictions must be reversed. We affirm.
¶3 I. BACKGROUND
¶4 On January 9, 2019, defendant was indicted on four felony charges, stemming from an
October 26, 2018, search of his Elgin home pursuant to a search warrant. Count I alleged that
defendant unlawfully possessed with the intent to deliver 15 grams or more but less than 100 grams
of a substance containing cocaine (720 ILCS 570/401(a)(2)(A) (West 2018)). Count II alleged that
defendant unlawfully possessed 15 grams or more but less than 100 grams of a substance
containing cocaine (id. § 402(a)(2)(A)). Count III charged UUPWF and alleged that defendant
knowingly possessed a firearm, “a Ruger 9mm pistol,” after having been previously convicted of
a felony, aggravated unlawful use of a weapon (in Cook County case No. [CITATION]). Count
IV also charged UUPWF (id.) and alleged that defendant knowingly possessed a firearm, “a Ruger
9mm pistol,” after having been previously convicted of a felony, unlawful possession of a
controlled substance (in McHenry County case No. [CITATION]).
¶5 On December 18, 2020, defendant filed a “Motion to Quash Search Warrant and Suppress
Evidence Illegally Seized,” arguing that the search warrant lacked probable cause. The State filed
a response on April 1, 2021. On February 10, 2022, the trial court denied the motion. Defendant’s
subsequent motion for reconsideration was denied on May 20, 2022.
¶6 On June 1, 2023, the matter proceeded to a stipulated bench trial. The evidence consisted
of two documents, each titled “Joint Stipulation of the Parties,” and various items admitted as
People’s exhibits Nos. 1 through 29. 1
There was no People’s exhibit No. 4. The two stipulations were admitted as People’s
2024 IL App (2d) 230305-U
¶7 The stipulated evidence generally established the following. On October 26, 2018, officers
from the Illinois State Police Swat Team and the North Central Narcotics Task Force (Task Force)
executed a search warrant for defendant’s person and an Elgin apartment. Defendant was found in
the apartment, given a copy of the search warrant, and read his Miranda warnings (see [CITATION])
by Task Force Master Sergeant Backus. During the search, the
officers recovered (1) a clear plastic bag containing 32.2 grams of cocaine (People’s exhibit No. 1),
(2) four clear, knotted plastic bags weighing a combined 2.41 grams and containing suspected
(untested) cocaine (People’s exhibit No. 2), (3) a clear plastic bag weighing 2.31 grams and
containing suspected (untested) cocaine (People’s exhibit No. 3); (4) a Ruger 9-millimeter pistol
(People’s exhibit No. 5), (5) a loaded magazine found inside the Ruger 9-millimeter pistol
(People’s exhibit No. 6), (6) a black Apple iPhone (People’s exhibit No. 7), (7) a digital scale with
white powder residue (People’s exhibit No. 8), (8) an LG flip phone (People’s exhibit No. 9),
(9) 9-millimeter ammunition (People’s exhibit No. 10), (10) vehicle documentation belonging to
defendant (People’s exhibit No. 11), and (11) an insurance letter addressed to defendant (People’s
exhibit No. 12). People’s exhibit Nos. 13-28 were photographs taken at the scene, showing, among
other things, the foregoing items before collection. Also pictured was $1315 in U.S. currency
recovered from a bedroom dresser.
¶8 Edward McGill, a forensic scientist at the Illinois State Police Rockford Crime Laboratory,
would testify that, although People’s exhibit Nos. 2 and 3 were not tested for the presence of a
controlled substance, the contents of each exhibit were consistent in physical appearance with
People’s exhibit No. 1 and, in his opinion, contained cocaine.
exhibit Nos. 30 and 31.
====== 2024 IL App (2d) 230305-U
¶9 Backus would testify that, while escorting defendant to a squad car, defendant stated that
he lived alone at the apartment. Task Force Inspector Neamand would testify that, while
transporting defendant to the police department, defendant told Neamand that he lived alone in the
apartment but that his mother was the leaseholder. Later, Neamand and Task Force Inspector
Young interviewed defendant. Neamand and Young would testify that defendant admitted to
possessing the cocaine and the Ruger pistol but denied “sell[ing] drugs.”
¶ 10 Young, an expert “in the field of cannabis, cocaine, and drug trafficking,” would testify
that, in his opinion, defendant possessed the cocaine with the intent to deliver it. Young’s opinion
was based on (1) the amount of the cocaine, (2) the nature of the packaging, (3) the digital scale,
(4) the two cellular phones, (5) the $1315 in U.S. currency, (6) the loaded firearm, and (7) the
absence of “cocaine user paraphernalia.”
¶ 11 The stipulations further provided that, on October 26, 2018, (1) defendant had a previous
felony conviction of aggravated unlawful use of a weapon (in [CITATION]); (2) defendant had a previous felony conviction of unlawful possession of a controlled
substance (in [CITATION]); (3) defendant did not possess, and was not
eligible to obtain, a valid Firearm Owners Identification (FOID) card; and (4) the firearm
recovered was a “firearm” as defined by section 1.1 of the Firearm Owners Identification Card Act
(FOID Card Act) (430 ILCS 65/1.1 (West 2016)).
[SEGMENT 15]
¶ 12 After the State rested, defendant indicated that he did not wish to present evidence but that
the stipulations should not be considered a waiver of his argument that the search warrant lacked
probable cause.
¶ 13 The trial court found defendant guilty of all counts and set the matter for sentencing.
====== End of Part of a Court Ruling ====== 2024 IL App (2d) 230305-U
¶ 14 On September 11, 2023, defendant filed a motion for a new trial. Defendant argued that
the trial court erred in denying defendant’s motion to quash the search warrant and his subsequent
motion to reconsider.
¶ 15 On September 13, 2023, the trial court denied defendant’s motion for a new trial. Following
a sentencing hearing, the court merged count II into I and count IV into count III. It sentenced
defendant to seven years each on counts I and III, to run concurrently.
¶ 16 This timely appeal followed.
¶ 17 II. ANALYSIS
¶ 18 Defendant contends that, under the analysis recently established by the Supreme Court in
Bruen, the UUPWF statute is facially unconstitutional because it violates a felon’s second
amendment right to keep and bear arms. The State responds that the UUPWF statute is not
unconstitutional under Bruen, because the plain text of the second amendment does not apply to
convicted felons and, even if it did, historical analysis supports a tradition that allows for statutes
dispossessing felons of firearms. We agree with the State.
¶ 19 In considering the issue, we keep the following well-established principles in mind. “A
statute is presumed constitutional, and the party challenging the statute bears the burden of
demonstrating its invalidity.” [CITATION] “A party raising a
facial challenge to a statute faces a particularly heavy burden.” [CITATION] “A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid.” Id. “We have a duty to construe the statute
in a manner that upholds the statute’s validity and constitutionality, if it can reasonably be done.”
[CITATION] The constitutionality of a statute is a question of law,
which we review de novo. [CITATION]
2024 IL App (2d) 230305-U
¶ 20 The UUPWF statute (720 ILCS 5/24-1.1(a) (West 2018)) provides in relevant part:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
-1 of this Act or any firearm or any firearm ammunition if the person has been convicted
of a felony under the laws of this State or any other jurisdiction. This Section shall not
apply if the person has been granted relief by the Director of the Department of State Police
under Section 10 of the [FOID Card Act].[Footnote omitted.]”
The second amendment provides: “A well-regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend II.
¶ 21 We begin with a review of the relevant Supreme Court decisions. In [CITATION], the Supreme Court declared for the first time that the second
amendment right to keep and bear arms is an individual right rather than a collective right. In
[CITATION], the Court struck down a series of District of Columbia laws that banned handgun
possession in the home and required other types of firearms to be kept unloaded and disassembled
or bound by a trigger lock or similar device. Id. at 575, 635. The Court held that the laws violated
the second amendment’s protection of “the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.” (Emphasis added.) Id. The Court noted, however, that “the right
secured by the Second Amendment is not unlimited.” Id. at 626. The Court admonished that
“nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill[.]” Id.
¶ 22 Two years later, in [CITATION], the Court
held that the second amendment’s “right to keep and bear arms for the purpose of self-defense”
2024 IL App (2d) 230305-U
applied to the States through the fourteenth amendment (U.S. Const. amend. XIV). Further, it
struck down laws enacted by the City of Chicago and a Chicago suburb similar to those in Heller.
[CITATION]. In so holding, the Court stated: “We made it clear in Heller that our holding did not cast
doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by
felons and the mentally ill[] ***.’ [CITATION.] We repeat those assurances here.” [CITATION].
¶ 23 In 2022, the Supreme Court decided Bruen. The issue in Bruen was whether “ordinary,
law-abiding citizens have a *** right to carry handguns publicly for their self-defense.” (Emphasis
added.) [CITATION]. The Court held that, “consistent with Heller and McDonald, *** the
Second and Fourteenth Amendments” protect such a right. [CITATION]. Thus, it struck down New
York’s licensing laws that conditioned the issuance of public-carry licenses on a showing of a
special need. [CITATION].
¶ 24 In deciding the issue, the Bruen Court recognized that, following Heller, “the Courts of
Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment
challenges that combines history with means-ends scrutiny.” [CITATION]. At the first step, the
government could justify the firearm restriction by demonstrating that the impacted activity fell
outside the scope of the second amendment as originally understood. [CITATION]. If the government
proved that the regulated activity fell beyond the amendment’s original scope, the court would
uphold the regulation without further analysis. [CITATION]. If, however, it was unclear that the activity was
unprotected, the court would proceed to the second step, in which the court would weigh the
severity of the firearm regulation—the means—against the ends the government sought to achieve.
[CITATION]. The level of scrutiny would depend on how close the regulation came to the core of the second
amendment. [CITATION].
2024 IL App (2d) 230305-U
¶ 25 The Bruen Court “decline[d] to adopt” this framework, noting that “Heller and McDonald
do not support applying a means-end scrutiny in the Second Amendment context.” [CITATION] at 19.
Instead, the Bruen Court set forth the following test for assessing the validity of statutes under the
second amendment:
“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. To justify its regulation, the government
may not simply posit that the regulation promotes an important interest. Rather, the
government must demonstrate that the regulation is consistent with this Nation’s historical
tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s
historical tradition may a court conclude that the individual’s conduct falls outside the
Second Amendment’s ‘unqualified command.’ ” [CITATION] at 24 (quoting [CITATION]).
Thus, under [CITATION], the court must first ask whether the second amendment’s “plain text” covers
an individual’s conduct. [CITATION] If it does, the question becomes whether the challenged statute is
“consistent with this Nation’s historical tradition of firearm regulation.” [CITATION]
¶ 26 After briefing in this case was complete, the Court decided [CITATION], which reaffirmed the Bruen test and emphasized
that “Heller never established a categorical rule that the Constitution prohibits regulations that
forbid firearm possession in the home.” [CITATION] “In fact,” the Court noted, “Heller stated that
many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’
are ‘presumptively lawful.’ ” [CITATION] (quoting [CITATION]). The Court in [CITATION]
rejected a facial challenge to a federal statute (18 U.S.C. § 922(g)(8)) that prohibited firearm
possession by a person subject to a domestic-violence restraining order that protected an intimate
2024 IL App (2d) 230305-U
partner or the partner’s child. Id. *4, 5. The Court held that the statute was not facially invalid
given that one of the bases for prohibiting firearm possession by the subject of the order was that
he or she presented a credible threat to the physical safety of the intimate partner or the partner’s
child. Id. *7 (citing 18 U.S.C § 922(g)(8)(C)(i)). For reasons not apparent, the Court did not apply
the first part of the Bruen test but considered only whether the statute was consistent with the
Nation’s history of firearms regulation. Id. *10. After reviewing historical analogs of the statute,
the Court found that “[o]ur tradition of firearm regulation allows the Government to disarm
individuals who present a credible threat to the physical safety of others.” Id. The Court concluded:
[SEGMENT 16]
“An individual found by a court to pose a credible threat to the physical safety of another may be
temporarily disarmed consistent with the Second Amendment.” Id. *11.
¶ 27 Defendant’s challenge to the UUPWF statute fails at the first step of the Bruen analysis
because, contrary to defendant’s assertion, felons are not included in “the people” to whom the
second amendment refers.
¶ 28 We find instructive [CITATION]. In [CITATION], the defendant argued that the UUPWF statute,
as applied to him, was unconstitutional under the framework announced in Bruen. Id. ¶¶ 33, 37.
The First District concluded that defendant could not mount a second-amendment challenge to the
statute because “Bruen just [did] not apply to him,” given his status as a felon. Id. ¶ 37. The court
explained:
“The Bruen Court could not have been more clear that its newly announced test applied
only to laws that attempted to regulate the gun possession of ‘law-abiding citizens,’ and
not felons like defendant. Bruen, 597 U.S. at [71], 142 S. Ct. at 2156 (the holding was
limited to laws affecting ‘law-abiding citizens’). Just in case a reader missed the first time
2024 IL App (2d) 230305-U
that the court said it, the court repeated it 18 times. [CITATION]
passim (the six justices in the majority repeated the phrase ‘law-abiding’ 18 times in their
majority opinion and their concurrences). Further, Justice Kavanaugh in his concurrence
quoted an earlier case that stated: ‘ “[N]othing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons ***.” ’ [CITATION]
(Kavanaugh, J., concurring, joined by Roberts, C.J.)
(quoting [CITATION]). Justice Kavanaugh’s concurrence
was joined by Chief Justice Roberts, and they both joined the six-justice majority opinion.
Based on the plain, clear, and repeated language of the justices in the majority, defendant
is simply outside the box drawn by [CITATION]
¶ 29 As the State notes, we have recently issued two unpublished decisions that similarly
rejected [CITATION]-based challenges to the UUPWF statute by agreeing with [CITATION] and holding that
felons are not a part of “the people” in the plain text of the amendment. 2 See [CITATION], pet. for leave to appeal pending, No. 130680 (filed May 8,
2024) (“As defendant does not dispute that he is a convicted felon for purposes of the [UUPWF]
statute, he is not a ‘law-abiding’ citizen afforded the same second amendment protections enjoyed
by ‘the people’ referenced in the second amendment.”); [CITATION], pet. for leave to appeal pending, No. 130714 (filed May 23, 2024) (“We *** hold
that ‘the people’ referenced in the second amendment are law-abiding citizens.”). In addition, in
[CITATION], pet. for leave to appeal pending, No. 130343
Orders issued under Illinois Supreme Court Rule 23(b) (eff. Feb. 1, 2023) on or after
January 1, 2021, “may be cited for persuasive purposes.” Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023).
- 10 - 2024 IL App (2d) 230305-U
(filed Jan. 24, 2024), we similarly rejected a second amendment challenge under Bruen to the
armed habitual criminal (AHC) statute (720 ILCS 5/24-1.7 (West 2020)): “[A]s defendant
concedes that he is a repeat convicted felon for purposes of the [AHC] statute, he is not a ‘law-
abiding’ citizen afforded the same second amendment protections enjoyed by ‘the people’
reference in the second amendment.”
¶ 30 We agree with Baker and our previous decisions. As we noted in Echols:
“[T]he clear implication of Bruen is that ‘the people’ referenced in the second amendment
are ‘law-abiding’ citizens. See, e.g., [CITATION], 69 F.4th 495, 504 (8th Cir.
) (‘Congress did not violate [the defendant’s rights] by enacting § 922(g)(1) [(18
U.S.C. § 922(g)(1) (2020) (the federal unlawful-possession-of-a-weapon-by-a-felon
statute)]. He is not a law-abiding citizen, and history supports the authority of Congress to
prohibit possession of firearms by persons who have demonstrated disrespect for legal
norms of society.’); [CITATION], 650 F. Supp. 3d 638, 640 (N.D. Ill. 2023)
(‘Courts in this jurisdiction and elsewhere have relied on the focus in [Bruen, McDonald,
and Heller] on the rights of “law-abiding” citizens to hold that the government may,
consistently with Bruen[,] disqualify convicted felons from exercising the rights the
Second Amendment guarantees.’); [CITATION], 2023 WL 122401, at *2
(N.D. W. Va. 2023) (‘The Supreme Court notes throughout its decisions that the
challenging parties are “law-abiding” citizens. The implication is clear: the reach of Bruen
ends at the feet of those individuals who are not law-abiding citizens.’); [CITATION],
WL 122650, at *2 (N.D. W. Va. 2023) (‘The bottom line is [the
defendant’s] status as a felon removes him from “the people” enumerated in the Second
Amendment.’); [CITATION], 2022 WL 4534605, *1 (N.D. Ill. 2022) (quoting
- 11 - 2024 IL App (2d) 230305-U
Heller, 554 U.S. at 635) (noting that the right secured by the second amendment ‘extends
only to “the people,” which encompasses only “law-abiding, responsible” citizens who
keep or bear arms for “lawful purposes.” ’); [CITATION] (‘By distinguishing non-law-abiding citizens from law-abiding ones,
the [dicta] in Heller and McDonald clarifies the bounds of the plain text of the Second
Amendment. This, coupled with the majority’s focus in Bruen on the Second Amendment
rights of “law-abiding citizens” throughout the opinion convinces this Court that the
Supreme Court would conclude that these statutes fail to infringe on any Second
Amendment rights.’).” [CITATION], ¶ 153.
¶ 31 Further, we note that several published Illinois decisions have similarly concluded that the
second amendment protects the rights of only law-abiding citizens. See [CITATION], ¶ 22 (rejecting the defendant’s facial challenge to the AHC statute, stating that
“Bruen is clear that second amendment rights apply to law-abiding citizens for self-defense”);
[CITATION], ¶ 21 (rejecting the defendant’s constitutional
challenge to the UUPWF statute, holding that “Bruen simply does not apply to [the] defendant.
The second and fourteenth amendments protect the right of ‘law-abiding citizens’ to possess
handguns”); [CITATION], ¶¶ 56, 59, pet. for leave to appeal
pending, No. 130078 (filed May 22, 2024) (rejecting the defendant’s facial challenge to the
aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1)(3)(A-5)(C), (I) (West
2018)), which criminalizes possession of a weapon under certain circumstances without a valid
license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2018)) or a valid
FOID card, noting that “Bruen expressly and repeatedly limits the second amendment’s scope to
law-abiding citizens”); [CITATION], ¶¶ 28, 29, pet. for leave to
- 12 - 2024 IL App (2d) 230305-U
appeal pending, No. 130417 (filed Jan. 31, 2024) (where the record showed that the defendant had
“at least 14 felony convictions, including convictions for violent crimes,” the defendant could not
challenge under Bruen the UUPWF statute as applied to him because “Bruen strongly suggests the
test only applies when a regulation impacts a law-abiding citizen’s ability to keep and bear arms”).
¶ 32 Numerous unpublished Illinois decisions have read the second amendment’s text similarly.
See [CITATION], ¶ 81, pet. for leave to appeal pending, No. 130803
(filed June 21, 2024) (rejecting the defendant’s constitutional challenge to the UUPWF statute,
holding that “Bruen does not apply to [the] defendant, as the second and fourteenth amendments
[SEGMENT 17]
protect the right of ‘law-abiding citizens’ to possess handguns”); [CITATION] ¶ 15, pet. for leave to appeal pending, No. 130678 (filed May 8, 2024) (rejecting
the defendant’s facial and as-applied challenges to the AHC statute because the “defendant’s
previous felony convictions make him not a law-abiding citizen and, therefore, not protected by
the second amendment” (emphases in original)); [CITATION]
(CITATION), ¶ 19, pet. for leave to appeal pending, No. 130369 (filed Jan. 16, 2024) (rejecting the
defendant’s facial constitutional challenge to the UUPWF statute, finding “nothing in [the]
defendant’s arguments to persuade [the court] to believe Bruen does not apply to felons
simpliciter[.]”); [CITATION], ¶¶ 17-24, pet. for leave to
appeal pending, No. 130385 (filed Jan. 22, 2024) (relying on Baker and rejecting the defendant’s
facial and as-applied challenges to the UUPWF statute, holding that his status as a felon removed
him from the first step of the Bruen analysis); [CITATION],
¶ 40, pet. for leave to appeal pending, No. 130398 (filed Jan. 24, 2024) (“In Heller, McDonald,
and Bruen, the Supreme Court made clear that felons are not, and have historically not been,
categorically protected by the second amendment as ‘law-abiding citizens.’ ”); [CITATION]
- 13 - 2024 IL App (2d) 230305-U
[CITATION]
¶ 33 We recognize that one panel of the First District, in considering the constitutionality of the
UUPWF statute, has held that felon status is “irrelevant” at the first stage of the Bruen analysis
and, thus, even a felon’s possession of a firearm is “ ‘presumptively constitutional.’ [Citation.].”
See [CITATION]. One panel of the Third District adopted [CITATION]’ reasoning when
considering facial and as-applied constitutional challenges to the AHC statute and the UUPWF
statute. See [CITATION].
¶ 34 We decline to follow [CITATION]’ reasoning as to the first step of the Bruen analysis. 3 Instead,
we join the great weight of authority in Illinois and agree that the second amendment does not
apply to a felon’s firearm possession.
¶ 35 Even if we presumed that a felon’s firearm possession is covered under the plain text of
the second amendment, defendant’s challenge to the UUPWF statute would fail under Bruen’s
We note that both [CITATION] and [CITATION] upheld the challenged statutes under the second stage
of the Bruen analysis. See [CITATION] (“[W]e conclude that the
legislature’s ability to impose status-based restrictions disqualifying certain categories of people
from possessing firearms is consistent with the national historical tradition of firearm regulation.”);
[CITATION] (“[W]e conclude there is a history and tradition dating
back to the founding era of identifying dangerous individuals and disarming them.”)
- 14 -
====== End of Document ====== 2024 IL App (2d) 230305-U
second step, which asks whether the state can demonstrate that the UUPWF statute “is consistent
with the Nation’s historical tradition of firearm regulation.” [CITATION]. Defendant
contends that there is no historical tradition of firearms regulation that supports a “flat ban” on
firearm possession by convicted felons. We disagree.
¶ 36 Despite our disagreement with [CITATION] conclusion that felons are covered under the plain
text of the second amendment, we nevertheless find particularly instructive [CITATION] analysis on
the issue of whether the UUPWF statute is consistent with the Nation’s historical tradition of
firearm regulation.
¶ 37 In [CITATION], the court considered an as-applied challenge to the AHC statute. [CITATION]. The [CITATION] court summarized as follows the State’s burden under
[CITATION] second step:
“To carry this burden, the government must point to ‘historical precedent from
before, during, and even after the founding [that] evinces a comparable tradition of
regulation.’ [CITATION]. Noting that ‘when it comes to interpreting the Constitution, not all
history is created equal,’ the Court made clear that the relevant inquiry centers on what the
founders understood the second amendment to mean. [CITATION]. In other words, the Court
clarified that in looking to historical context, the most relevant time period is that of the
amendment’s enactment (in 1791). [CITATION]. [Footnote omitted.]
In directing courts to canvass historical periods for context, the Court
acknowledged that the task would not always be ‘straightforward,’ particularly when it
involved ‘unprecedented societal concerns or dramatic technological changes.’ [CITATION.]
Noting that in such circumstances ‘a more nuanced approach’ was necessary, the Court
instructed lower courts to seek out similar regulations and to reason by analogy. [CITATION.]
- 15 - 2024 IL App (2d) 230305-U
As the Court explained, it is not necessary to identify a ‘historical twin’; rather a ‘well-
established and representative [historical] analogue will do.’ (Emphasis in original.)
[CITATION.]
The Court further clarified that ‘analogical reasoning’ under the second amendment
should not be ‘a regulatory straitjacket nor a regulatory blank check.’ [CITATION.] As such,
‘courts should not “uphold every modern law that remotely resembles a historical
analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have
accepted.” ’ [CITATION.] However, ‘even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass constitutional muster.’
[CITATION.] The core question is whether the challenged regulation and the proffered
analogue are ‘relevantly similar.’ [CITATION.]
The Court then clarified two metrics to be used in comparing the government's
proffered analogues against the challenged law, namely: (1) how the challenged law
burdens the right to bear arms; and (2) why the law burdens that right. [CITATION.] In short,
the Court explained that the proper inquiry turns on whether the ‘modern and historical
regulations imposes a comparable burden on the right of armed self-defense, and ***
whether that burden is comparably justified.’ [CITATION.]” Id. ¶¶ 70-73.
¶ 38 The Brooks court engaged in an extensive historical analysis dating back to 17th century
England and ultimately concluded that “there is a historical tradition of legislatures exercising their
discretion to impose status-based restrictions disarming entire categories of persons who, based on
their past conduct, were presumed unwilling to obey the law.” (Internal quotations omitted.) Id.
¶ 97. “While the particular groups varied over time, the founders understood that felons were one
such group.” Id.
- 16 - 2024 IL App (2d) 230305-U
¶ 39 The court began by noting that, in 17th Century England, the government “repeatedly
disarmed individuals whose conduct reflected that they could not be trusted to abide by the
sovereign and [his] dictates.” (Internal quotations omitted.) [CITATION] ¶ 93. Those disarmed included,
first, “non-Anglican Protestants who refused to participate in the Church of England and those
who were dangerous to the Peace of the Kingdom” and, later, “Catholics who refused to renounce
their faith.” (Internal quotations omitted.) [CITATION] The court noted that, later, “[i]n colonial America,
legislatures continued to disarm individuals whose status indicated that they could not be trusted
to obey the law.” [CITATION] ¶ 94. “As such, Native Americans, and other minority groups, like Catholics
in Maryland and Pennsylvania were banned from owning firearms.” [CITATION] The court next noted that,
“during the Revolutionary War, the Continental Congress, Massachusetts, Virginia, Pennsylvania,
Rhode Island, North Carolina, and New Jersey prohibited possession of firearms by people who
refused to swear loyalty oaths.” [CITATION]
¶ 40 The Brooks court further noted that “[f]ounding-era criminal punishments also demonstrate
the widespread acceptance of the legislature’s authority to disarm felons.” [CITATION] ¶ 96. For instance,
even for some nonviolent crimes such as deceit, forgery, and wrongful taking of property, the
punishment included death or forfeiture of a person’s entire estate (which the Brooks court
presumed included firearms). [CITATION] “Even some non-capital offenses triggered the permanent loss of
an offender’s estate, including any firearms.” [CITATION] An example was a 1786 New York statute that
punished individuals who counterfeited state bills of credit with life imprisonment and the
complete forfeiture of their estate (which, again, included firearms). [CITATION] As one court has observed,
[SEGMENT 18]
“if someone was subject to death and forfeiture of their entire estate then such laws would have
also foreclosed individuals from their right to keep and bear arms.” [CITATION] “As a matter of logic and experience, it makes sense
- 17 -
====== End of Part of a Court Ruling ====== 2024 IL App (2d) 230305-U
that these extensive and exhaustive penalties for felonies—outright capital punishment and the
forfeiture of all property—qualify as powerful evidence that mere firearms dispossession of felons
is a ‘comparable burden’ as Bruen frames the standard *** to historical punishments for felonies.”
[CITATION]
¶ 41 While Brooks’ historical survey uncovered no law that specifically prohibited felons from
owning firearms, Brooks did cite laws that were persuasive analogs to the UUPWF statute. As the
federal district court reasoned in [CITATION] the English disarmament laws “are relevant analogues to the [federal]
felon dispossession statute, because they disarmed groups ‘based on their perceived potential
disobedience to the law (or sovereign).’ ” In addition, the Colonial and Revolutionary-era laws are
evidence that, “ ‘by the time of the Second Amendment’s ratification in 1791, there already was a
historical tradition of legislatures disarming persons based on the perception (sometimes odious
perceptions) that certain groups could not be trusted to be abide [by] the law or sovereign.’ ” Id.
*11 (quoting Agee, *9).
¶ 42 Here, the State relies specifically on the “surety statutes” of the mid-19th century as
analogous to the UUPWF statute. The surety statutes “required certain individuals to post bond
before carrying weapons in public.” Bruen, 597 U.S. at 55. In [CITATION],
The decisions of federal district courts may be considered as persuasive authority. Home
Star Bank & Financial Services v. Emergency Care & Health Organization, Ltd., 2012 IL App
(1st) 112321, ¶ 37 n.3.
- 18 - 2024 IL App (2d) 230305-U
district court found that the surety statutes were analogous to the federal unlawful possession-of-
a-firearm-by-a-felon statute (18 U.S.C. § 922(g)(1)), stating:
“[The] [surety] statutes presumed a right to ‘carry [a firearm] that [could] be burdened only
if another could make out a specific showing of “reasonable cause to fear an injury, or
breach of the peace.” ’ Id. (quoting Mass. Rev. Stat., ch. 134 § 16 (1836)). *** [T]he
Second Amendment also begins with a presumption that the individual has the right to
carry. However, § 922(g)(1) burdens this right just as the surety statutes did nearly two
hundred years ago. Over 65% of prisoners in the United States will be arrested again within
three years of their release and over 80% within nine years of their release. [Citation.] Thus,
felons clearly fall within a category of people who are not only reasonably believed to, but
also probable to cause an injury or breach of the peace. Although surety statutes did not
disarm citizens, the statutes did burden the right guaranteed by the Second Amendment in
a similar fashion.”
¶ 43 As noted, the Court in [CITATION] also reviewed the history of firearms regulation in England
and early America. See [CITATION], 2024 WL 3074728, *7-10. The Court observed that,
“[f]rom the earliest days of the common law, firearms regulations have included provisions barring
people from misusing weapons to harm or menace others.” Id. *7. “By the 1700s and early 1800s,
*** two distinct legal regimes had developed that specifically addressed firearms violence.” Id.
These were the surety statutes and the “ ‘going armed’ ” statutes. Id. *7-8. The latter “provided a
mechanism for punishing those who had menaced others with firearms.” Id. *8. These two sets of
laws, the Court concluded, “confirm what common sense suggests: When an individual poses a
clear threat of physical violence to another, the threatening individual may be disarmed.” Id. *9.
- 19 - 2024 IL App (2d) 230305-U
¶ 44 Thus, even though there is no “historical twin” for the UUPWF statute, “there is evidence
that categorical bans are permissible and that individuals that have been deemed dangerous, non-
law abiding, or even reasonably likely to breach the peace may have their right to keep and bear
arms restricted.” [CITATION].
¶ 45 Defendant contends, however, that “the historical record does not support Illinois’ flat ban
on the possession of firearms by a convicted felon,” but his arguments are not persuasive. First, he
argues that the history of gun regulation demonstrates that most restrictions were based on
dangerousness, not criminal history or status. However, contrary to defendant’s argument, the
status-based restrictions were based not on individualized assessments of dangerousness, but “on
a conclusion that the category as a whole presented an unacceptable risk of danger if armed.” See
[CITATION]. Indeed, “[n]ot all persons disarmed under historical precedents—not all
Protestants or Catholics in England, not all Native Americans, not all Catholics in Maryland, not
all early Americans who declined to swear an oath of loyalty—were violent or dangerous persons.”
Id.
¶ 46 Defendant also argues that the status-based restrictions were temporary or easily
removable. For instance, he asserts that, in the case of Protestant monarchs prohibiting Catholics
from possessing firearms unless they swore an oath of loyalty and renounced their papism, a person
could remove the disability by appearing before a justice of the peace and swearing oaths of
allegiance to the King. However, as the State notes, an individual prohibited from possessing a
firearm under the UUPWF statute may analogously obtain relief under section 10(c) of the FOID
Card Act (430 ILCS 65/10 (West 2020)) by submitting a petition showing
“(1) the applicant has not been convicted of a forcible felony under the laws of this State
or any other jurisdiction within 20 years of the applicant’s application for a Firearm
- 20 - 2024 IL App (2d) 230305-U
Owner’s Identification Card, or at least 20 years have passed since the end of any period
of imprisonment imposed in relation to that conviction; (2) the circumstances regarding a
criminal conviction, where applicable, the applicant’s criminal history and his reputation
are such that the applicant will not be likely to act in a manner dangerous to public safety;
(3) granting relief would not be contrary to the public interest; and (4) granting relief would
not be contrary to federal law.”
See [CITATION], 2021 IL 125513, ¶ 35 (“The legislature clearly
intended for felons to be able to obtain relief under section 10 of the FOID Card Act [(see 430
ILCS 65/10 (West 2020))]. Section 24-1.1(a)’s prohibition on the possession of weapons by felons
says that it does not apply if the person has been granted relief under section 10 of the FOID Card
Act. We do not believe that the legislature’s intent was to create such a right and then make it
impossible for anyone to obtain relief.”). Although defendant argues that applying for
reinstatement of the right to possess a firearm under this provision is akin to the “special need”
provision struck down in Bruen, that case is distinguishable. There is a crucial difference between
the government (1) applying its discretion to enable a law-abiding citizen to exercise the right to
possess a firearm and (2) applying its discretion to reinstate a law-breaking citizen’s right to
possess a firearm.
¶ 47 Finally, defendant directs our attention to three “founding-era proposals” that were
ultimately not incorporated into the second amendment. In one proposal, a majority of the New
Hampshire convention suggested that the bill of rights limit the right to bear arms to those who
had not engaged in “ ‘actual rebellion.’ ” See [CITATION], 919 F.3d 437, 454 (2019) (Barrett,
J., dissenting) (quoting 1 Jonathan Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 326 (2d ed. 1891)). In the Massachusetts convention, Samuel
- 21 - 2024 IL App (2d) 230305-U
Adams proposed that only “ ‘peaceable citizens’ ” have the right to bear arms. [CITATION] (quoting 2
Benard Schwartz, The Bill of Rights: A Documentary History 675, 681 (1971)). In the
Pennsylvania convention, the influential Pennsylvania minority suggested that the citizens’ right
to bear arms not be infringed “ ‘unless for crimes committed, or real danger of public injury from
[the] individuals.’ ” [CITATION] at 456 (quoting 2 Schwartz, at 662, 665). Defendant cites then-Judge
Barrett’s comment, in dissent, that “[t]he concern common to all three [proposals] is not about
[SEGMENT 19]
felons in particular or even criminals in general; it is about threatened violence and the risk of
public injury.” [CITATION]. Thus, according to defendant, the proposals do not support the notion of a
blanket disarmament of felons.
¶ 48 However, as defendant notes, none of the proposals were incorporated into the second
amendment. It can be argued that this was because limitations on the rights of felons to keep and
bear arms were understood. Recently, in [CITATION], the court observed that the existence of the
proposals supports “the proposition that it was ‘ “ ‘obvious’ ” to the Founders that persons who
committed crimes would properly be subject to disarmament laws.’ ” [CITATION], No. 23 CR 00450-1,
2024 WL 2292236, *12 (quoting [CITATION], No. 1:21-CR-00350-1, 2023 WL 6443924, * 9, citing
Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 273
(2008) (explaining that the Founders “did not object to the lack of an explicit exclusion of criminals
from the individual right to keep and bear arms” during the debates over “what became the Second
Amendment,” because this limitation “was understood”)). We agree with that reasoning.
¶ 49 In sum, defendant’s challenge to the UUPWF statute fails under the Bruen analysis because
felons, who are not law-abiding citizens, are not afforded the same second amendment protections
enjoyed by “the people” referenced therein. Further, even if the text of the second amendment was
- 22 - 2024 IL App (2d) 230305-U
to be construed as presumptively protecting felons, the UUPWF statute is consistent with this
Nation’s historical tradition of firearms regulation.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 52 Affirmed.
- 23 -
======
2024 IL App (1st) 231008-U
SECOND DIVISION
September 10, 2024
No. 1-23-1008
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 02900
)
SHAQUILLE WHITEHEAD, ) Honorable
) Angela Munari Petrone,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court of Cook County convicting defendant
of armed habitual criminal (AHC); the trial court did not consider facts not in evidence or
abandon its role as neutral arbiter to deny defendant a fair trial; the evidence was
sufficient to prove defendant’s guilt beyond a reasonable doubt; and the AHC statute is
constitutional under the United States and Illinois constitutions.
¶2 The State charged defendant, Shaquille Whitehead, with armed habitual criminal (AHC),
unlawful use of a weapon by a felon, and three counts of aggravated unlawful use of a weapon.
Following a bench trial, the circuit court of Cook County found defendant guilty of AHC and
UUWF. The court merged the conviction for UUWF into the conviction for AHC and sentenced
defendant to six years’ imprisonment for AHC. Defendant appeals the conviction on the grounds
(1) the trial court denied defendant a fair trial by considering facts not in evidence and
abandoning its role as neutral arbiter of the facts and adopting the role of prosecutor, (2) the State 1-23-1008
failed to prove him guilty of every element of the offense of AHC beyond a reasonable doubt,
and (3) the AHC statute is unconstitutional on its face and as applied to defendant under both the
United States Constitution and Illinois Constitution.
¶3 For the following reasons, we affirm.
¶4 BACKGROUND
¶5 The charges against defendant arose from a traffic stop of a vehicle defendant was
driving with one passenger. The State called one of the officers who stopped defendant’s vehicle
as its only live witness at defendant’s bench trial. The State also submitted into evidence footage
from the testifying officer’s body worn camera and the footage from the body worn camera of
one of the other officers involved in the traffic stop, but the second officer did not testify.
¶6 Officer Axel Gallardo of the Chicago Police Department testified that on February 9,
2022, he and his partner, Officer Rojas Yesenia, conducted a traffic stop. Officer Gallardo
approached the passenger side of the vehicle and his partner approached the driver’s side of the
vehicle. Officer Gallardo observed two people in the vehicle. He identified defendant as the
driver. Defendant did not have a valid driver’s license and the officers decided to tow the
vehicle. At that time, defendant was already out of the vehicle. Officer Gallardo asked the
passenger to exit the vehicle but the passenger did not immediately exit the vehicle. Officer
Yesenia recovered a loaded handgun from the pocket of a jacket the passenger was wearing.
Officers eventually removed the passenger from the vehicle and placed him into custody.
¶7 Officer Gallardo testified that after police placed the passenger into custody they
conducted an inventory search of the vehicle. During the inventory search, police found a firearm
“In the middle of the backseat on top of a child’s car seat.” The car seat was in the middle of the
backseat of the vehicle. Officer Gallardo testified he did not see the gun immediately because
1-23-1008
there was a blanket on top of the firearm. There was nothing else on top of the firearm other than
the blanket. Officer Gallardo removed “a laundry basket, clothes, and the blanket” before he
recovered the gun. The gun was loaded, it had an extended magazine, and it had a laser sight.
¶8 Officer Gallardo testified that at the time of the traffic stop he was wearing a body worn
camera. The State published the footage of the traffic stop from Officer Gallardo’s body worn
camera to the trial court without objection. Officer Gallardo verbally described his actions.
Officer Gallardo testified that he was searching the vehicle defendant had been driving. He
removed a plastic bag containing clothes. He recovered the firearm. Officer Gallardo testified he
recovered the firearm “On the child’s car seat. On top of the child’s car seat.” He pointed out the
exact area of the car seat where he recovered the firearm. The State asked that the record reflect
“that the officer pointed on the car seat.” The trial court asked the officer to point again and the
court clarified that the officer “pointed to an area that’s kind of reddish or pink on the car seat
which is to the left of the white basket as one is looking at the [image.]” The court asked if the
officer recovered the firearm “from the top of that which is now gray or black ***?” Officer
Gallardo identified the side of the car seat. The court asked, “Where did you recover it?” The
officer responded, “Where the child usually sits.” The court stated, “Oh, on the seat. That’s on
top of where the pink or red color is?” and the officer responded, “Yes.” The State stopped the
recording.
¶9 Officer Gallardo testified that he spoke to defendant with his partner present. The officer
read defendant his Miranda rights, after which he asked defendant who was the registered owner
of the vehicle. The officer testified that defendant stated the registered owner was his sister. The
officer testified that defendant also stated that “he came back from doing laundry” at the
laundromat, “and he said that he had no knowledge of the firearm.”
1-23-1008
¶ 10 Upon further examination by the State, Officer Gallardo testified there were two people
in the vehicle and no one was seated in the backseat. The State asked the officer to “describe
how the blanket was placed over the gun.” The officer testified, “It looks like the blanket was
placed over the gun.” The blanket was partially folded. When asked what he meant by “partially”
the officer testified, “It looks like it was just thrown into the car seat ***.” The firearm was
within arm’s reach of where defendant was seated and there was nothing else covering the
firearm besides the blanket.
¶ 11 On cross-examination, Officer Gallardo testified that defendant was being cooperative
with Officer Yesenia. When asked to exit the vehicle defendant did so. Officer Gallardo admitted
that the passenger was also within arm’s reach of the firearm recovered from the backseat of the
vehicle. The passenger did not get out of the car when asked and officers eventually had to
physically remove the passenger from the vehicle. Officer Gallardo agreed he had no way of
knowing how long the firearm was in the car seat or how long the passenger or defendant were in
the car. Officer Gallardo testified defendant told him he was coming back from doing laundry
[SEGMENT 20]
and the officer found a bag of laundry and a laundry basket in the car. The bag of laundry and the
laundry basket were not on top of the firearm. Officer Gallardo had no idea how long the blanket
had been there.
¶ 12 The State did not perform a redirect examination and asked that the officer be excused.
The trial court asked the defense if it needed the officer to stay and the defense stated it had no
objection to the officer being excused. The trial court initially excused the officer, but then stated
the court had “a couple of questions of the officer.” The officer retook the stand and the court
asked the officer what type of handgun he found. The officer responded, “It’s and FN firearm.”
The officer could not recall what the abbreviation “FN” meant or the caliber of the firearm. The
1-23-1008
State refreshed the officer’s memory with his case report, and the officer testified that, “It’s an
FN 509, nine millimeter.” The court asked whether the officer recalled the type of vehicle
defendant was driving. Officer Gallardo testified only that “It’s a black vehicle.” He refreshed
his memory again and stated, “Black Chevy, ma’am;” but the officer could not recall the kind of
Chevy. The trial court asked the State and the defense whether either had any questions based on
the court’s questions and both responded they did not.
¶ 13 The State informed the trial court it had no further live witnesses and that it would be
proceeding by stipulation. The parties stipulated that the footage of Officer Rojas’s body worn
camera was a true and accurate depiction of the events. The trial court admitted the recording
into evidence and the State published the video to the court. The court also admitted self-
authenticating certified copies of defendant’s two prior convictions for burglary.
¶ 14 The State rested its case and the defense moved for a directed finding. The trial court
denied defendant’s motion for a directed finding and the parties proceeded with closing
arguments. At the conclusion of the parties’ arguments the court stated it wanted “to look up
some law about guns found in vehicles” and continued the matter.
¶ 15 On December 8, 2022, the trial court issued its written order following the bench trial.
The court found defendant guilty of AHC and UUWF. “The State nolle prosequi [the remaining
counts.]” The trial court’s written order states, in pertinent part, that the officers stopped “a small
black Chevrolet.” When asked for his driver’s license and insurance defendant could not produce
them and said, “Coming right from the laundromat.” Defendant complied with the officer’s
request to exit the vehicle. The court wrote: “An inventory search of the Chevrolet yielded a .9
mm handgun with a laser sight and an extended magazine, atop a child’s car seat in the middle of
the backseat. A blanket had been loosely covering the gun. A large white bag of clothes and a
1-23-1008
laundry basket were immediately next to the gun.” The court recounted defendant’s statement to
the officer about the car belonging to his sister and coming from the laundromat, then continued
as follows:
“The State argued constructive possession of the .9 mm handgun that was
on top of the child’s car seat was proven. Joint knowledge and control exist; the
gun was within arm’s reach of where defendant and the passenger had been
seated. It had been put there recently, as it would have fallen from its position
with a sudden stop of the vehicle. The blanket covering the gun was not
random—it went with the laundry defendant admitted possessing. There were not
a lot of other things in the vehicle. It would have been impossible to place the
laundry where it was, and not realize a gun was on top of the car seat. *** The
gun was not under a seat, in the glove box or inside a door or inside a center
console or in the trunk.”
¶ 16 The trial court noted that the gun was “equal distance between the driver and passenger;
both were within arm’s reach of it.” The court acknowledged the gun was not in plain sight, it
was unknown how long it had been there, this was not defendant’s vehicle, and defendant “did
not act suspiciously and aggressively like the passenger did.” The court noted that proximity is
not enough for proof beyond a reasonable doubt.
¶ 17 The court summarized the holdings in [CITATION] and [CITATION], and the evidence in this case. Of note is that the
court stated that in [CITATION], the court found that, “If two or more persons share immediate and
exclusive control or share the intention and power to exercise control, then each has possession;
where possession has been shown, an inference of guilty knowledge can be drawn from the
1-23-1008
surrounding facts and circumstances.” Further, in [CITATION], the court found that “[w]here a
defendant was the driver of a vehicle, and had merely a lone passenger, defendant had immediate
and exclusive control of the inside of the automobile for purposes of constructive possession.”
Finally, the trial court here noted that in [CITATION], the court found that “a defendant’s mere
presence in a vehicle, without more, does not establish his knowledge of a weapon therein,” but
“[a]n inference of knowledge arises when the contraband is located in a place over which the
defendant had regular ongoing, control and it is an item that human experience teaches is rarely,
if ever, found unaccountably in such a place. A defendant’s close proximity to the weapon and a
description of where the weapon was found may also be considered.”
¶ 18 The trial court then wrote:
“A *** weapon, a .9 mm handgun with laser sight and extended magazine,
was found atop a child’s car seat in the middle of the backseat, immediately next
to a laundry basket and a bag of clothing, loosely covered by a blanket. The area
where this weapon was recovered was easily within arm’s reach of both defendant
and the front seat passenger; body camera video shows the Chevrolet defendant
was driving was a small vehicle. The weapon was in a location over which
defendant had control and had placed laundry shortly before. The weapon was
recently put atop the child’s seat—such a large and distinctive handgun would not
normally be left atop a child’s car seat in a vehicle, certainly would have fallen
upon sudden stop of the vehicle, and was loosely covered by a blanket; body cam
video shows blankets were part of the laundry that was in the backseat.”
¶ 19 Based on the findings stated above, the trial court found that the State proved beyond a
reasonable doubt that defendant “knew the .9 mm firearm with laser sight and extended
1-23-1008
magazine that was found in the backseat, atop the child’s car seat, was in the Chevrolet. The
evidence proved beyond a reasonable doubt that defendant constructively possessed that
firearm.”
¶ 20 Defendant filed a motion to reconsider the judgment. On May 4, 2023, the trial court
denied defendant’s motion to reconsider the finding of guilt in a written order.
¶ 21 On May 4, 2023, the trial court sentenced defendant. In its oral sentencing ruling, the trial
court noted that the sentencing range for AHC is six to thirty years. The court noted the nature of
the weapon, which it “consider[ed] to be significant.” The trial court initially described the
firearm as a “machine gun” but immediately corrected itself to say that “the weapon in this case
was a .9 millimeter handgun loaded with a laser sight and an extended magazine.” The court
agreed there was no evidence defendant actually used the gun and that his prior convictions
“were all burglaries, no indication of physical harm to someone else.” The court also found that
there “is some mitigating information in the presentence investigation in that [defendant] was
cooperative with the officers as shown on the video.” The court found “all of that warrants the
minimum sentence here of six years in the Illinois Department of Corrections.”
¶ 22 This appeal followed.
¶ 23 ANALYSIS
¶ 24 This is an appeal from a conviction following a bench trial attacking the fairness of the
trial based on the trial court’s alleged reliance on facts not contained in the record and
questioning of a witness, the sufficiency of the evidence to prove defendant guilty of every
element of the offense beyond a reasonable doubt, and the constitutionality of the criminal
statute under which the trial court convicted defendant.
1-23-1008
¶ 25 Our supreme court “has held that the deliberations of the trial judge are limited to the
record made before [it] during the course of the trial. A determination made by the trial judge
based upon a private investigation by the court or based upon private knowledge of the court,
untested by cross-examination, or any of the rules of evidence constitutes a denial of due process
of law.” [CITATION]. Although “[t]he rule is clear that when
the trial court is the trier of the facts every presumption will be accorded that the judge
considered only admissible evidence and disregarded inadmissible evidence in reaching his
conclusion” ([CITATION]), this presumption is rebutted by statements in the
record indicating the trial judge “considered matters which were not in evidence” (id.). Where
the trial judge considered matters not in evidence, “there is no alternative but to reverse and
remand for a new trial.” Id. In these circumstances “[w]hether a defendant’s due process rights
[SEGMENT 21]
have been denied is an issue of law, and thus, our review is de novo.” [CITATION] (the defendant argued the trial judge violated his right to due process
when the judge misremembered crucial evidence).
¶ 26 Furthermore, “a trial court has discretion to *** reopen a case on its own motion where a
sound basis for it appears in the record. [Citation.] The propriety of the judicial examination
depends on the circumstances of each case and rests largely in the trial court’s discretion.
[Citation.]” [CITATION]. We review matters committed
to the trial court’s discretion, including matters impacting a defendant’s right to a fair trial, for an
abuse of discretion. See [CITATION] (“When a
defendant argues that his due process rights and right to a fair trial were violated by the State’s
failure to disclose certain evidence in discovery, we review the trial court’s ruling on the matter
for an abuse of discretion.”). “An abuse of discretion occurs when no reasonable person would
1-23-1008
take the view adopted by the court. [Citations.] Moreover, the trial court’s ruling will not be
overturned unless the abuse of that discretion led to manifest prejudice against defendant.”
[CITATION], ¶ 134 (citing [CITATION]).
¶ 27 “When reviewing the sufficiency of the evidence,” “the relevant inquiry is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. [Citation.] This standard of
review applies in cases whether the evidence is direct or circumstantial.” [CITATION], ¶ 48.
¶ 28 “Constitutional challenges carry the heavy burden of successfully rebutting the strong
judicial presumption that statutes are constitutional. That presumption applies with equal force to
legislative enactments that declare and define conduct constituting a crime and determine the
penalties imposed for such conduct.” (Internal quotation marks and citations omitted.) [CITATION], ¶ 9. “The constitutionality of a statute is a question of law,
which is reviewed de novo.” Id.
¶ 29 For the reasons below, we find that the trial court did not deny defendant his right to a
fair trial by considering facts not in evidence or briefly questioning Officer Gallardo, the
evidence was sufficient to prove defendant guilty of every element of AHC beyond a reasonable
doubt, and the AHC statute is constitutional under the United States Constitution and Illinois
Constitution.
¶ 30 FAIRNESS OF DEFENDANT’S TRIAL
¶ 31 First, we turn to defendant’s argument the trial court deprived him of the right to a fair
trial by allegedly relying on facts not in evidence and abdicating its role as a neutral arbiter of the
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facts and adopting the role of a prosecutor when the trial court questioned Officer Gallardo.
Defendant argues the trial court relied on facts not in evidence to find him guilty, thereby
depriving him of his right to a fair trial. Defendant admits this issue was not properly preserved
for review and asks this court to review this issue as a matter of plain error. “To successfully
maintain a claim of either first- or second-prong plain error *** a defendant must prove actual
error.” [CITATION] That is why, “[u]nder the plain error doctrine, ‘the first step’ is to determine whether any error occurred at all.” [CITATION]
¶ 32 Once again, “the deliberations of the trial judge are limited to the record made before
[them] during the course of the trial. A determination made by the trial judge based upon a
private investigation by the court or based upon private knowledge of the court, untested by
cross-examination, or any of the rules of evidence constitutes a denial of due process of law.”
[CITATION] Nonetheless,
`“In a bench trial, it is the function of the trial court to determine the
credibility of witnesses, weigh the evidence, draw reasonable inferences
therefrom, and resolve any conflicts in the evidence. [CITATION] The trial court is
‘free to accept or reject as much or as little as it pleases of a witness’ testimony’
[CITATION] and ‘may take into account her own life and experience in ruling on the
evidence’ [CITATION]
“A trier of fact may infer from facts and circumstances in evidence other
connected facts that reasonably and usually follow according to common
experience. [CITATION] A trier of fact is not required to disregard inferences that
flow normally from the evidence, nor to seek all possible explanations consistent
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with innocence and elevate them to reasonable doubt, nor to be satisfied beyond a
reasonable doubt as to each link in the chain of circumstances if the evidence as a
whole satisfies the trier of fact beyond a reasonable doubt. [Citation.] [CITATION]
“We need only reverse a court’s determination when the trial court’s
reliance on matters outside the record is prejudicial to one of the parties.
[Citation.] However, ‘[r]eliance on information found [outside] the record is not
reversible error where there is no evidence that it either misled or entered into the
trial court’s determination.’ [Citation.] We afford a trial court every presumption
that it considered only admissible evidence in reaching a conclusion. [Citation.]
‘This assumption will be overcome only if the record affirmatively demonstrates
the contrary, as where it is established that the court’s finding rests on a private
investigation of the evidence, or on other private knowledge about the facts in the
case.’ [Citation.]” [CITATION]
¶ 33 Defendant asserts the record demonstrates the trial relied on the following specific facts
which defendant claims were not in evidence:
1. The blankets were part of the laundry that was in the backseat.
2. The gun was in a location where defendant had placed laundry shortly before.
3. The handgun was found atop a child’s car seat.
4. A blanket had been loosely covering the gun.
5. The handgun certainly would have fallen upon sudden stop of the vehicle.
6. The handgun was large and distinctive.
7. The car was small.
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¶ 34 First, we address defendant’s implication of a distinction between the trial court saying
the handgun was found “atop” the car seat rather than “where the child usually sits,” from which
we can only infer that defendant believes the trial court found the handgun was on top of the
backrest of the car seat rather than on top of the seat of the car seat, as Officer Gallardo testified.
Defendant argues this allegedly inaccurate assumption by the trial court led the trial court to
conclude the handgun would have fallen from the car seat upon a sudden stop. These arguments
fail.
¶ 35 Defendant offers no evidence that is what the trial court meant other than his own
characterization of what “atop” means. We reject defendant’s characterization as refuted by the
record. The State’s statement for the record about where the handgun was found was admittedly
vague. The trial court questioned Officer Gallardo itself to clarify his testimony. It was in
response to the trial court’s questioning that Officer Gallardo testified the gun was found "where
the child usually sits.” The record, rather than establishing that the trial court relied on a fact not
in evidence, establishes that the trial court was keenly interested in and consciously aware of the
exact location where the gun was recovered.
¶ 36 Next, defendant also argues the State offered no evidence of what was or was not a part
of defendant’s laundry, and the trial court’s speculation led the court to conclude the handgun
was in a place where defendant had just placed laundry and therefore he must have seen it.
Defendant argues the officer never testified the blanket was “loosely” covering the handgun.
Defendant argues the conclusion the blanket “loosely” covered the handgun is belied by the
recording from Officer Gallardo’s body worn camera which shows the officer “pulling hard” on
the blanket to remove it. Defendant separately argues the State “never established that a gun
placed on the seat ‘where the child usually sits’ and covered by a blanket would have fallen
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anywhere upon a sudden stop of the vehicle, or that the gun must have been placed on the seat
recently.”
¶ 37 Defendant argues these facts, which allegedly are not part of the record, led the trial court
to reason that because the gun had not fallen then it must have been put there only recently, and
if it were put there recently it must have been put there by defendant, which, defendant argues,
led to the court’s determination that the State proved that defendant “had knowledge of the gun.”
Defendant also argues the State offered no evidence of the size of the handgun or of the car, yet
the trial court relied on the fact the gun was “large and distinctive” and the car was “small” to
find him guilty. Defendant argues that the trial court’s assumption of a fact not in evidence about
the size of the car permitted the court to find the State proved the handgun was in arm’s reach
and, therefore, that defendant constructively possessed the gun. Defendant does not explicitly
argue, as he did with the other alleged facts not in evidence, how the trial court’s alleged
adoption of the fact of the size and distinctiveness of the handgun influenced its decision and
prejudiced him.
[SEGMENT 22]
¶ 38 The State responds the evidence adduced at trial supported the reasonable inferences that
defendant had recently placed the laundry in the car and that the blanket was part of the laundry.
The State points to evidence that defendant stated he was coming from the laundromat and the
proximity of the blanket to the laundry basket and bag of clothes as supporting the inferences
that the blanket was part of the laundry and had recently been placed in the car. The State argues
the recording from the officer’s body worn camera shows the size of the car and the trial court
expressly based its finding about the size of the car on the video.
¶ 39 The State also argues the recording shows the size and shape of the handgun and, further,
that the officer testified that the handgun was a .9 mm caliber with a laser sight and distinctive
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magazine, both of which support the trial court’s finding that the gun was large and distinctive.
The State points to the officer’s testimony that it appeared the blanket had been thrown into the
seat, and the depiction of the area in the recording, as supporting the inferences that the blanket
“loosely” covered the gun and that the gun would have fallen off the seat in the event of a sudden
stop. The State argues it was for the trial court to decide what the fact the officer had to “pull
hard” on the blanket meant and that the court could have decided it just meant the blanket was
large.
¶ 40 In reply, defendant offers his own interpretation of what the same facts noted by the State
mean, positing counter-inferences and what defendant believes to be “the most likely scenario.”
Defendant argues the size of the blanket supports his argument the gun was completely
concealed and, therefore, he did not know it was present. Defendant simply denies that it can be
inferred from the “fact that a small portion of the blanket hung very slightly over the bag of
laundry” (a fact the trial court did not rely on) that defendant placed the blanket in the car and
over the gun.
¶ 41 We find that the trial court did not make any determinations based upon information not
in the record. [CITATION] Rather, the trial court properly weighed the evidence and drew reasonable inferences therefrom. Moreover, the trial court was free to accept Officer
Gallardo’s admissible testimony about the blanket and properly took into account its own life
and experience in ruling on the evidence. [CITATION] This
record does not affirmatively demonstrate the contrary. [CITATION] Defendant’s arguments are largely
based on inferences consistent with innocence rather than guilt. The trial court was not “required
to disregard inferences that flow normally from the evidence, nor to seek all possible
explanations consistent with innocence and elevate them to reasonable doubt.” [CITATION]
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App (1st) 172162, ¶ 35. Finally, defendant complains the trial court’s judgment is based on “a
string of inferences.” This assertion does not lead to the conclusion that the evidence is so
improbable or unsatisfactory to create a reasonable doubt of defendant’s guilt. [CITATION], 2024 IL
App (1st) 181491, ¶ 194 (“We will not reverse the *** verdict for lack of evidence unless the
evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt.’ [Citation.]”). “The State has the burden of establishing each element of the
offense beyond a reasonable doubt. However, this burden does not require that the State
demonstrate every link in the chain; rather the court can rely upon the reasonable inferences
which arise from circumstantial evidence.” [CITATION], 241 Ill. App. 3d 986, 992 (1993).
And, “a criminal conviction ‘may be based solely on circumstantial evidence.’ [Citation.]”
[CITATION], 2023 IL App (1st) 220920, ¶ 62.
¶ 42 The finding that “[t]he blanket covering the gun *** went with the laundry defendant
admitted possessing” is a reasonable inference from defendant’s own admission he was just
coming from the laundromat, the nature of the item itself—which defendant admits was a large
blanket—and its proximity to other items that defendant does not dispute were part of the
laundry he had just done—specifically the laundry basket and bag of clothes. The trial court
noted another fact—one which defendant does not dispute—that supports the inference that the
blanket was part of defendant’s laundry: “There were not a lot of other things in the vehicle.” If
the vehicle was primarily carrying what defendant does not dispute was laundry it stands to
reason the blanket was also laundry. Similarly, the finding that the blanket “had been put there
recently” is supported by defendant’s admission he was just coming from the laundromat and the
reasonable inference from the facts and circumstances that the blanket was part of that laundry.
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¶ 43 Furthermore, Officer Gallardo testified about the blanket that, “It looks like it was just
thrown into the car seat.” That, and the trial court’s own observations, are sufficient to
reasonably infer that “[a] blanket had been loosely covering the gun.” One may reasonably infer
from common experience that a “partially folded” blanket that is “just thrown over” a car seat, as
Officer Gallardo testified, as opposed to being pressed down or tucked in, would rest loosely
over the car seat. One may also infer from common experience that regardless how large or
heavy a blanket is, if it is just “thrown over” a car seat it would not press down on an object on
the seat portion of the car seat of its own weight. Similarly here, because it is reasonable to infer
that the blanket sat “loosely” over the car seat, a heavy object like a firearm (one may reasonably
infer the approximate mass of a handgun) could fall upon a sudden stop of the vehicle. In this
instance, however, whether that inference is reasonable from the evidence or not, we find
defendant was not prejudiced by it and, therefore, reversal is not required. [CITATION], ¶¶ 54-55. Defendant argues the trial court used this inference to infer the handgun
had been placed there recently—because it had not fallen—and because it had been placed there
recently, defendant knew about it. We disagree. Although the trial court did find that “[i]t had
been placed there recently, as it would have fallen from its position with a sudden stop of the
vehicle,” this was not the trial court’s reason for finding defendant knew the gun was in the car
within his reach. The trial court wrote, “It would have been impossible to place the laundry
where it was, and not realize a gun was on top of the car seat.”
¶ 44 We find the trial court found knowledge based on the findings (both from the evidence
and reasonable inferences therefrom) that the handgun would have been visible on the seat of the
car seat before laundry was placed in the car, the blanket was part of the laundry, and defendant
placed the laundry—thereby covering the handgun—in the car recently, as he was just coming
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from the laundromat. Finally, the trial court saw the gun, heard a description of the gun, and saw
the car. These facts are undisputed. The trial court’s conclusions about the size of the handgun
and the car were not based on facts not in evidence but on what it heard and saw.
¶ 45 The trial court did not base its judgment on facts not in evidence. “Finding no error on
this contention, we find no plain error or ineffectiveness of counsel.” [CITATION]. Defendant’s argument he was denied a fair trial on this basis fails.
¶ 46 Next, defendant argues the trial court “crossed the line between trier of fact and advocate
for the State” when the court questioned Officer Gallardo.
“A criminal defendant who elects to be tried in a bench trial is entitled to
the same fair, patient, and impartial consideration he would be entitled to by a
jury composed of fair, impartial, careful and considerate jurors. [Citation.] *** A
trial judge’s questioning of a witness must be done in a fair and impartial manner,
without showing bias or prejudice against either party. [Citation.]” (Internal
quotation marks omitted.) [CITATION].
¶ 47 This court has explained the trial court’s role in this context: “The trial court has the right
to question witnesses in order to elicit the truth or to bring enlightenment on material issues
which seem obscure.” [CITATION]. Further,
“Illinois courts have recognized that the proper function of a judge
includes a duty to ensure that justice is done in criminal trials when, for instance,
a certain fact has not been developed or a certain line of inquiry has not been
pursued, as long as the judge does not in any way become an advocate for one
side or the other. [Citations.]
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To this end, a trial court may, sua sponte, call its own witnesses and
question witnesses called by either party. [CITATION.] What a trial court may not do
is assume the role of an advocate. [CITATION.] But, a suggestion that the State
present evidence proving essential elements of an offense is not an assumption of
the role of a prosecutor. [CITATION.]” [CITATION.],
[SEGMENT 23]
¶¶ 24-25 (citing, inter alia, [CITATION.]).
Moreover, “[i]n a bench trial, it is the function of the trial court to determine the
credibility of witnesses [and] weigh the evidence ***. The trial court is ‘free to accept or
reject as much or as little as it pleases of a witness’ testimony.’ [CITATION.]” [CITATION.]
IL App (1st) 160498, ¶¶ 54-55.
¶ 48 Defendant also cites [CITATION.] and argues there was no evidence “that a fact had not been
developed or a line of inquiry not pursued” to permit the trial court to interpose, and the court
assumed the role of advocate when the court questioned Officer Gallardo and “used Gallardo’s
answers to support the State’s case.” Defendant argues that the court assumed the function of
advocate and favored the State because the court used facts obtained from its own questioning to
find defendant guilty—specifically, the caliber of the handgun and the size of the car. Defendant
argues that evidence of the fact the trial court assumed the role of prosecutor lies in the fact that
Officer Gallardo could only describe the car as a black Chevy but the court repeatedly described
the car as “small.” Defendant argues the trial court used the size of the car to find the gun was
within defendant’s reach. Defendant does not specify how the caliber of the gun entered into the
court’s decision making and only notes that the court found the gun to be “large and distinctive”
based the court’s own questioning of Gallardo.
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¶ 49 We find that the trial court “did not abandon its role as neutral arbiter and assume the role
of a prosecutor.” [CITATION]¶ 26. The trial court’s questioning was not
extensive. [CITATION] (“A trial judge’s questioning ‘should rarely be extensive,’
although an ‘extensive examination may be justified if the court has reason to believe that a
witness is not telling the truth.’ ”). We disagree with defendant’s claim that there was no fact that
had not been developed when the trial court questioned Gallardo. The exact location where the
gun was recovered had not been developed when the court asked Gallardo, “Where did you
recover it?” The location of the gun was clearly an important fact that needed to be developed.
“And, as this was a bench trial, the court possessed wide latitude, the question related to its fact-
finding role, and the risk of prejudice to [defendant] was low.” [CITATION]
¶ 26 (holding trial court did not abandon its role as neutral arbiter). The risk of prejudice to
defendant from the question itself was low because the answer may have helped defendant. (For
example, if Officer Gallardo had testified the gun was on top of the backrest defendant might
have used that testimony to argue the gun was not in his reach—although we express no opinion
about the efficacy of that argument.)
¶ 50 “To show prejudice in a bench trial, the defendant must show that ‘the tenor of the
court’s questioning indicates the court has prejudged the outcome before hearing all of the
evidence.’ [Citation.]” [CITATION] There is nothing
to indicate the trial court had prejudged the outcome. The question was a direct request for a
relevant fact, the answer to which may have benefitted either party. In fact, defendant uses his
own interpretation of the evidence of the location of the gun to bolster his argument the trial
court’s findings are not supported by evidence in the record. We find that this question was
asked “in a fair and impartial manner, without in any way showing bias for or prejudice against
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either party to the litigation.” [CITATION]. Furthermore, in this case, like in [CITATION], the
trial court “did not decide *** that the State needed to present more evidence and then order the
State to produce it. Rather, the trial court [elicited] evidence before argument.” Id. ¶ 30.
Therefore, in this case, the questioning was a “proper function of a judge.” [CITATION]
¶ 51 Nor had the type of gun and car been developed when the trial court recalled Officer
Gallardo to the stand. Regardless, the trial court’s questioning about the caliber of the gun and
the type of car were “not necessary to prove the State’s case.” Id. ¶ 30. For whatever purpose it
may or may not have been used, the State elicited sufficient evidence for the trial court to find
the handgun was “large and distinctive.” The State asked Officer Gallardo, referring to the
handgun, “What attachments did it have?” Officer Gallardo responded, “It has an extended
magazine and a laser sight.” That evidence elicited by the State is sufficient to permit the trial
court to find the gun “large” (it had an extended magazine) and “distinctive” (it had a laser
sight). As for the size of the car, any testimony elicited by the trial court touching on the size of
the car was not necessary to prove whether the gun was within defendant’s reach. The State
asked, “Was the firearm within arm’s reach of where the defendant had been seated?” Officer
Gallardo responded, “Yes.”
¶ 52 Defendant has failed to establish prejudice from the trial court’s questioning of Officer
Gallardo. We find the trial court did not abuse its discretion.
¶ 53 SUFFICIENCY OF THE EVIDENCE
¶ 54 Defendant argues the State failed to prove beyond a reasonable doubt that defendant had
constructive possession of the handgun. “To prove [defendant] guilty of armed habitual criminal,
the State had to show two elements: (i) [defendant] possessed a firearm and (ii) possession was
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after having been convicted of two qualifying offenses.” [CITATION]. Defendant only disputes whether the State proved possession. In the absence of
actual possession, the State must seek “to prove constructive possession—that [defendant] had
knowledge of the gun’s presence and ‘immediate and exclusive’ control over the area where
officers found it. [Citation.]” Id., [CITATION] (“When a
defendant is not found in actual possession, the State must prove constructive possession.”).
Defendant argues the State failed to prove that defendant constructively possessed the handgun
because the gun was not visible, defendant did not make any gestures or movements toward the
backseat of the car, no physical evidence links him to the handgun, and defendant made no
incriminating statements.
¶ 55 “A person has actual possession when he has immediate and exclusive control over an
item; actual possession does not require ‘present personal touching’ of that item. [Citation.] A
person has constructive possession when he lacks actual possession but has the intent and
capability to exercise control over the item. [Citation.]” [CITATION]. “The control may be exercised directly or through another person. [CITATIONS.] ‘[I]f
two or more persons share [the] immediate and exclusive control or share the intention and [the]
power to exercise control’ over a thing, ‘then each [one] has possession.’ [Citation.]” [CITATION].
¶ 56 “[I]t is not the function of the reviewing court to retry the defendant. [Citation.] *** The
credibility of the witnesses, the weight to be given their testimony, and the resolution of any
conflicts in the evidence are within the province of the trier of fact, and a reviewing court will
not substitute its judgment for that of the trier of fact on these matters. [Citation.]” [CITATION]. “We have recognized that constructive possession often involves
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‘entirely circumstantial’ evidence [citation].” [CITATION]. ¶ 45.
Circumstantial evidence is sufficient to sustain a criminal conviction. Id. ¶ 49.
“Circumstantial evidence is sufficient to sustain a criminal conviction,
provided that such evidence satisfies proof beyond a reasonable doubt of the
elements of the crime charged. [Citation.] The trier of fact need not be satisfied
beyond a reasonable doubt as to each link in the chain of circumstances; it is
sufficient if all of the evidence taken together satisfies the trier of fact beyond a
reasonable doubt of the defendant’s guilt. [Citation.] To prove guilt beyond a
reasonable doubt does not mean that a [trier of fact] must disregard the inferences
that flow normally from the evidence before it.” [CITATION],
¶ 49.
Nor is the trier of fact “required to *** seek all possible explanations consistent with innocence
and elevate them to reasonable doubt. [Citation.] In other words, the State need not disprove or
rule out all possible factual scenarios in order to sustain its burden.” [CITATION], ¶ 36. “We will not reverse the *** verdict for lack of evidence unless the
evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt.’ [Citation.]” [CITATION], ¶ 194.
¶ 57 In his opening brief, defendant did not make any specific arguments that the State failed
to prove he had “immediate and exclusive control over the area where the firearm is found.”
Although the State does not argue forfeiture, the State does assert, repeatedly, that defendant is
not challenging the “control” factor for constructive possession. Defendant refutes this
[SEGMENT 24]
contention, arguing in reply that he did argue the State failed to prove “control” because
defendant challenged the sufficiency of the evidence to prove constructive possession in general,
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and defendant cited cases in which the court found a lack of “control.” The State is correct that
defendant’s opening brief did not argue that the State failed to prove defendant had control over
the area where the firearm is found.
“Arguments raised for the first time in a reply brief need not be addressed
by this court. [Citation.] Besides maintaining consistency and uniformity,
avoiding confusion, and preventing gamesmanship, Rule 341(h)(7) prevents
unfairness to an adverse party who would have no notice of the issue or an
opportunity to provide a response. [Where an] issue could have been raised in the
principle brief but was not, we decline to entertain it.” [CITATION]
¶ 58 Although the issue of control is not properly before this court, we find defendant’s newly
raised arguments that the State failed to prove control unpersuasive.1
¶ 59 Defendant argues the State failed to prove control because he did not own the vehicle and
“his status as the driver did not establish his possession of the entire contents of the vehicle.”
“[W]e agree with *** defendant that ownership is not dispositive,” but [it] may be relevant or
“probative of the issue of control.” [CITATION]. Ownership is not a necessary element of control for purposes of constructive possession and plays no part in
this case. However, “direct evidence of a defendant driving a vehicle is surely sufficient evidence
of control.” [CITATION] Defendant’s new argument the State failed
to prove the “control” element of constructive possession fails. Defendant is correct only in that
1
See [CITATION] (where the State raised the issue of
abandonment for the first time in its reply brief, the court found the issue was not properly before
the court but, nonetheless found the State failed to carry its burden of proving the incriminating
property was abandoned), vacated on other grounds, [CITATION].
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“his status as the driver did not establish his [knowing] possession of the entire contents of the
vehicle.”
¶ 60 “[K]nowledge may often be inferred from one’s control over an area. [CITATION.] Such an
inference is certainly not always appropriate.” [CITATION]. “While
any sort of control will satisfy the first component of constructive possession, *** only ‘regular,
ongoing control’ may give rise to an inference of knowledge.” (Emphasis added.) Id. In the
absence of “regular, ongoing control” the State must present other evidence of knowledge, which
may include “circumstantial evidence from which [the] defendant’s knowledge could be
inferred.” [CITATION]. The State does not have to prove the handgun was
in plain view at all times, as long as defendant had an opportunity to observe it. See [CITATION]. For the reasons stated below, we find the State did
present evidence of knowledge other than defendant’s status as the driver.
¶ 61 Defendant also argues that the trial court misplaced its reliance on [CITATION], because [CITATION] is distinguishable in that, in [CITATION], the defendant was alone in
the car, fled from police, and the gun was hidden in a way that called attention to its presence. In
[CITATION], the court found that the defendant had control of the vehicle because the defendant “was
its driver and sole occupant.” [CITATION]. It is clear from [CITATION]
that it did not only rely on the fact the defendant was alone in the car but instead, the fact the
defendant was alone in the car was just additional “evidence for a rational trier of fact to find that
[the] defendant controlled the vehicle from which the contraband was discovered.” Id. This
conclusion is proven by the [CITATION] court citation in support of this finding to [CITATION],
for the proposition that “ ‘because the defendant was the driver of the vehicle, and because he had merely a lone passenger, defendant had
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immediate and exclusive control of the inside of the automobile’ for purposes of constructive
possession of methaqualone recovered from under the front passenger’s seat” (emphasis added),
and [CITATION] (“The defendant had immediate and
exclusive control over the area in which the officer found the gun. The presence of the other men
in the car does not negate defendant’s constructive possession of the concealed weapon.”)
[CITATION], ¶ 35.
¶ 62 Additionally, the fact the defendant in [CITATION] fled was a relevant, but not a necessary,
fact in support of the inference of the defendant’s knowledge of the presence of the handgun. See
id. ¶ 29 (introducing evidence of defendant’s flight, along with other evidence, by stating “[a]lso
supporting the inference of defendant’s knowledge”). The [CITATION] court did rely, in part, on the
fact that after manipulating “the compartment containing the firearm, [it was] immediately
visible” and “was located so close to the driver’s area and was readily accessible upon
‘manipulation’ [to] suggest the firearm was intentionally placed there to be readily accessible to
the driver” to find that the evidence was sufficient to prove the defendant knew the firearm was
in the vehicle. Id. ¶ 38. Nothing in [CITATION] suggests that its factual determinations are necessary
factors to find knowledge of the presence of contraband. The [CITATION] court merely applied the
facts of the case before it to the question of whether “the contraband [was] located in a place
over which the defendant had ‘regular ongoing control’ and [was] ‘an item that human
experience teaches is rarely, if ever, found unaccountably in such a place.’ [Citation.]” (id. ¶ 37)
to find that defendant knew the firearm was in the vehicle. The facts of this case satisfy those
standards. Defendant’s attempt to distinguish [CITATION] is unavailing.
¶ 63 Turning to the question of defendant’s knowledge, and control, in [CITATION],
a jury found the defendant guilty of aggravated unlawful use of a weapon where the
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defendant was a passenger in a car and after an inventory search of the car police recovered a
handgun beneath the defendant’s seat. [CITATION]. Before trial, the defendant
alternatively told police the driver of the vehicle had shown the defendant the gun in the
defendant’s residence, after which the defendant placed the gun on a table, and that the driver
had shown the defendant the gun in the car after which the defendant returned it and exited the
car. [CITATION]. At trial, the defendant testified he had no knowledge of the gun in the vehicle and denied
making any statements about the driver showing the defendant the gun. [CITATION].
¶ 64 The defendant in [CITATION] argued that the State failed to prove the defendant had
knowledge of the gun in the vehicle. [CITATION]. The court held that it was incumbent on the State
to present some circumstantial evidence of knowledge of the presence of the weapon. [CITATION].
The court stated that “[a] defendant’s mere presence in a car, without more, is not evidence that
he knows a weapon is in the car.” [CITATION]). The court found that some factors from which knowledge could be inferred include “(1)
the visibility of the weapon from defendant’s position in the car, (2) the period of time in which
the defendant had an opportunity to observe the weapon, (3) any gestures by the defendant
indicating an effort to retrieve or hide the weapon, and (4) the size of the weapon.” [CITATION]-92.
But the [CITATION] court also found that “[c]ourts should also consider any other relevant
circumstantial evidence of knowledge, including whether the defendant had a possessory or
ownership interest in the weapon or in the automobile in which the weapon was found.” [CITATION]). In [CITATION], the State “failed to introduce any evidence
that [the defendant] had knowledge of the weapon’s presence in the vehicle in which the
defendant was the passenger.” [CITATION].
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¶ 65 Subsequently, in [CITATION], the defendant argued that “his conviction must be
reversed where there was nothing connecting him to [drugs recovered from ‘the pouch behind
the driver’s seat of the car in which he was a passenger’] aside from his mere presence in the car,
which [the defendant] maintains is insufficient as a matter of law.” [CITATION], ¶ 36. The Robinson court found that “[w]hen there is no direct evidence of
knowledge of contraband in a car, reviewing courts look to four factors, derived from [CITATION], and cited in [CITATION], to
determine whether the State presented sufficient circumstantial evidence from which the
defendant’s knowledge may reasonably be inferred.” Id. ¶ 39. The court listed the “Bailey
factors” and further stated that the “State cannot rely on a defendant’s mere presence to establish
knowledge that a controlled substance is in a vehicle.” Id. (citing [CITATION], 2021 IL App
[SEGMENT 25]
(2d) 190190, ¶ 40, [CITATION]). The Robinson court,
relying exclusively on the “Bailey factors,” found that the State “failed to present sufficient
evidence that [the] defendant had knowledge of the presence of the bag of drugs as to establish
constructive possession.” Id. ¶ 44 (“Having considered the Bailey factors, we conclude that in
this case, the State failed to present sufficient evidence that defendant had knowledge of the
presence of the bag of drugs so as to establish constructive possession.”).
¶ 66 In this case, defendant argues that applying the “Bailey factors” to this case
“demonstrates that the State failed to prove that [defendant] knowingly possessed the gun the
police recovered from the back seat of [defendant’s] sister’s car. Defendant argues (1) the
handgun was not visible to defendant—and in support thereof defendant argues the State failed
to prove the blanket covering the gun was part of defendant’s laundry; (2) there is no evidence as
to how long the gun was in the car and therefore no evidence that defendant had any opportunity
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to observe the handgun; (3) there was no evidence of defendant attempting to retrieve or hide the
handgun, nor that defendant made any furtive movements toward the back seat; (4) the size of
the gun—“ ‘small’ enough to sit on the child’s car seat completely out of sight—does not support
the conclusion that [defendant] was aware of its presence;” and (5) any additional factors of
knowledge do not support his conviction where (i) there is a lack of physical evidence tying
defendant to the handgun, (ii) defendant did not try to flee, and (iii) defendant cooperated with
police and never made an admission of guilt or otherwise display a guilty conscious. Defendant
argues that under [CITATION], his mere presence in the car, which he argues is the only fact the State
proved, is not enough to prove knowledge. Defendant concludes “the State failed to establish
constructive possession beyond a reasonable doubt,” and this court should reverse defendant’s
AHC conviction outright.
¶ 67 The State responds defendant’s status as the driver, time in the car, and the location and
size of the handgun prove defendant had knowledge and control of the firearm. The State argues
that defendant was not “merely present” in the vehicle but was the driver, as the driver defendant
had control over the vehicle’s contents, and that control raised the reasonable inference
defendant had knowledge of the firearm notwithstanding the passenger’s access to the firearm.
The State also argues that defendant had control over the firearm because defendant was the
driver and because of the location of the handgun—within arm’s reach where “firearms are not
normally found.” The State argues that defendant’s control “over the vehicle’s contents generates
a reasonable inference of his knowing possession of the weapon.” The State disputes defendant’s
analysis of the [CITATION] factors, arguing (regarding the first factor) that the evidence raises a
reasonable inference that the blanket covering the handgun was part of the laundry defendant
moved in and out of the vehicle, and the firearm, which was easily identifiable as such, would
- 29 - 1-23-1008
have either been visible when defendant placed the blanket over it or that defendant placed it
there himself. As to the remaining factors, the State argues it did not have to elicit evidence as to
every factor to establish defendant’s constructive possession of the handgun because “Bailey’s
list is not exhaustive, and a finding of knowledge does not require that every factor on the list be
met.” Rather, the State argues, the circumstantial evidence “all supported the [trial] court’s guilty
verdict.”
¶ 68 First, we agree with the State that it was not required to produce evidence of every
“Bailey factor” to prove defendant constructively possessed the handgun. As the State notes,
even the Bailey court stated that “[c]ourts should also consider any other relevant circumstantial
evidence of knowledge ***.” [CITATION] This court has recognized that
“[t]he Bailey factors do not *** constitute the exclusive means for determining whether a vehicle
occupant knew that contraband was present” ((emphasis in original) [CITATION], see also [CITATION] (“[t]he court’s list
of factors was not exclusive”)), and that we are not required to apply them in every case (see
[CITATION] (“the [Bailey] court’s list of factors was not
exclusive. [Citation.] Given the different circumstances in the current case, we believe the factors
considered in Bailey are less relevant here.”)). The foregoing notwithstanding, “the period of
time in which [defendant] had an opportunity to observe the weapon” ([CITATION] (listing factors)) weighs in favor of inferring that defendant had knowledge of the handgun.
The evidence was sufficient to produce reasonable inferences that defendant placed the blanket
in the car, and thus over the handgun visible on the seat of the car seat, as part of the laundry
defendant admitted he had just done. A reasonable trier of fact could infer defendant had the
opportunity to observe the weapon when putting the laundry in the car to go to the laundromat,
- 30 - 1-23-1008
taking it out to do the laundry, and a third time putting the laundry back in the car. Any would
have provided an opportunity to observe the handgun on the car seat.
¶ 69 Second, while defendant is correct that his “mere presence” in the vehicle, alone, is
insufficient to establish his knowledge of the presence of the firearm ([CITATION], ¶ 25 (“A defendant’s mere presence in a car, without more, is not evidence
that he knows a weapon is in the car.”)), it is also true that defendant’s status as the driver is
sufficient to establish that defendant had immediate and exclusive control over the area where
the weapon was found (uncased, covered by a blanket, on the seat of a car seat, in the middle of
the backseat of the vehicle defendant was driving). [CITATION], ¶ 42
(“direct evidence of a defendant driving a vehicle is surely sufficient evidence of control”), see
also [CITATION], ¶ 28 (quoting [CITATION]). And “[p]roof that a
defendant had control over the premises where the contraband is found gives rise to an inference
of knowledge and possession of that contraband” ([CITATION], ¶ 27).
¶ 70 In [CITATION], the court held that for an inference to arise that the defendant had
knowledge of a handgun within the vehicle’s glove compartment, “the State had to demonstrate
that [the] defendant had regular, ongoing control over the vehicle that he was driving.” [CITATION]. Alternatively, the State must adduce “other
evidence establishing knowledge of the weapon” which may include circumstantial evidence.
[CITATION] (“knowledge may, and most often must, be
proved by circumstantial evidence.”). There was no evidence and we do not find that defendant
had “regular, ongoing control” of the vehicle, but the handgun, even covered by the blanket, was
“an item that human experience teaches is rarely, if ever, found unaccountably in such a place.”
[CITATION]. Nonetheless, the evidence established more than defendant’s
- 31 - 1-23-1008
“mere presence in the vehicle.” The State adduced additional circumstantial evidence of
defendant’s knowledge of the handgun.
¶ 71 The handgun was found in the middle of the backseat on the seat portion of the car seat
and would have been in plain view if it were not covered by the blanket; and as previously
discussed, the evidence permitted the reasonable inference that the blanket found covering the
handgun was part of the laundry, that defendant placed the laundry in the car either before or
after leaving the laundromat, and that defendant would have seen the handgun on the car seat
when defendant put the laundry in the car (or, as Officer Gallardo testified, tossed the blanket
over the car seat). We do not need to find that defendant put the handgun on the car seat or that
defendant intentionally tried to hide the gun with the blanket (although both are reasonable
inferences from the evidence). All that is required to establish defendant’s constructive
possession of the handgun is that defendant “had knowledge of the presence of the contraband,
and had control over the area where the contraband was found.” [CITATION], ¶ 27 (citing [CITATION] at
1031). It is also irrelevant that defendant’s passenger had an equal ability to exercise control over
the firearm or may have also known of its presence. “Constructive possession is not diminished
by evidence of others’ access to contraband.” [CITATION], ¶ 27. It is
“settled law that constructive possession of contraband can be established even where possession
is joint or others have access to the area where the contraband is recovered.” [CITATION], ¶ 43. The State proved that defendant had immediate and
exclusive control over the area where officers found the handgun and knowledge of the gun’s
presence in the vehicle. [CITATION], ¶ 17. The evidence admitted at trial and the reasonable inferences therefrom were
- 32 - 1-23-1008
sufficient to permit the trier of fact to find beyond a reasonable doubt that defendant
constructively possessed the handgun.
¶ 72 CONSTITUTIONALITY OF AHC UNDER THE SECOND AMENDMENT
¶ 73 Defendant argues the AHC statute is unconstitutional on its face and as applied to
[SEGMENT 26]
defendant because it violates the second amendment to the United State Constitution. A facial
challenge requires a showing that the statute in question is unconstitutional under any set of
facts. [CITATION], ¶ 12. A conviction based on a facially
unconstitutional statute is void ([CITATION], ¶ 67), and the issue of the
constitutionality of the statute may be raised by a defendant for the first time on appeal ([CITATION], ¶ 8).
¶ 74 “[A]n as-applied challenge requires a showing that the statute is unconstitutional as it
applies to the specific facts and circumstances of the challenging party.” [CITATION], ¶ 12. “A facial challenge fails if we can conceive of any set of circumstances in
which the statute could be validly applied—including as applied to the very party before us.” [CITATION], ¶ 48 (citing [CITATION])
“Because facial and as-applied constitutional challenges are distinct
actions, it is not unreasonable to treat the two types of challenges differently ***.
By definition, an as-applied constitutional challenge is dependent on the particular
circumstances and facts of the individual defendant or petitioner. Therefore, it is
paramount that the record be sufficiently developed in terms of those facts and
circumstances for purposes of appellate review.” [CITATION]
- 33 - 1-23-1008
, ¶¶ 29-30, overruled on other grounds by [CITATION]
, ¶ 42.
¶ 75 In Travis, the court held that it could review an as applied challenge on appeal if the
record was sufficiently developed. The court found that the “[d]efendant concedes he did not
raise the issue previously but argues the record is sufficiently developed for us to review his
claim, and upon review of the record, we agree. See [CITATION], ¶¶ 29-32,
overruled on other grounds by [CITATION], ¶ 42 (finding where all relevant facts
and circumstances are contained in the record, a claim may be raised and reviewed on appeal).”
[**TARGET CITATION**], ¶ 17. Similarly, here, defendant’s criminal history is
undisputed and it is unclear how further investigation into whether defendant is a “violent” felon
“would aid us in determining whether the felon dispossession statutes have been constitutionally
applied to defendant” where the second amendment, article I, section 22, nor the AHC statute
draw any distinction between “violent” felonies and “nonviolent” felonies. See id. ¶ 18.
¶ 76 Although the State argues defendant forfeited his as-applied challenge by failing to raise
it in the trial court, we find that the record is sufficiently developed for this court to address the
challenge. Id. ¶ 17. Therefore, we begin with defendant’s as-applied challenge because if the
statute is constitutional as applied to defendant then there is necessarily a set of facts under
which the statute is constitutional. See [CITATION], ¶ 14.
¶ 77 Defendant argues the AHC statute violates the second amendment under the test
announced by the United States Supreme Court in [CITATION], 597 U.S. 1 (2022). In
[CITATION], the Supreme Court announced a two-part test to determine whether
statutes that regulate the right to keep and bear arms violate the second amendment. [CITATION],
597 U.S. at 24. Post-[CITATION], “the standard for applying the Second Amendment is as follows: When
- 34 - 1-23-1008
the Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” [CITATION].
To determine whether a regulation is “consistent with the Nation’s historical tradition of firearm
regulation,”
“[a] court must ascertain whether the new law is ‘relevantly similar’ to
laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance
struck by the founding generation to modern circumstances.’ [CITATION.] ***
Why and how the regulation burdens the right are central to this inquiry.
[CITATION.] For example, if laws at the founding regulated firearm use to address
particular problems, that will be a strong indicator that contemporary laws
imposing similar restrictions for similar reasons fall within a permissible category
of regulations. Even when a law regulates arms-bearing for a permissible reason,
though, it may not be compatible with the right if it does so to an extent beyond
what was done at the founding. And when a challenged regulation does not
precisely match its historical precursors, ‘it still may be analogous enough to pass
constitutional muster.’ [CITATION.] The law must comport with the principles
underlying the Second Amendment, but it need not be a ‘dead ringer’ or a
‘historical twin.’ [CITATION.]” [CITATION].
¶ 78 The first step of the Bruen test, whether the second amendment’s “plain text covers an
individual’s conduct,” requires “a ‘textual analysis’ focused on the ‘ “normal and ordinary” ’
meaning of the Second Amendment’s language.” [CITATION]). That analysis by the Supreme Court found
that the second amendment protects “law-abiding citizens.” [CITATION] (“For most
of our history, the Bill of Rights was not thought applicable to the States, and the Federal
Government did not significantly regulate the possession of firearms by law-abiding citizens.”),
see also [CITATION] (Stevens, J., joined by Souter, J., Ginsburg, J., and Breyer, J.,
dissenting) (“when it finally drills down on the substantive meaning of the Second Amendment,
the Court limits the protected class to ‘law-abiding, responsible citizens’ ”), [CITATION] (Alito, J., concurring) (“[CITATION] correctly recognized that the Second Amendment codifies the
right of ordinary law-abiding Americans to protect themselves from lethal violence by
possessing and, if necessary, using a gun.”).
¶ 79 [CITATION] did not disturb that conclusion. [CITATION] (Alito, J., concurring) (“Our
holding decides nothing about who may lawfully possess a firearm or the requirements that must
be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may
possess. Nor have we disturbed anything that we said in [CITATION] or [CITATION],
about restrictions that may be imposed on the possession or carrying of guns.”). In
[CITATION] and [CITATION] the Supreme Court held that states may restrict felons from possessing
firearms. [CITATION] (“nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons”), [CITATION]
(“We made it clear in [CITATION] that our holding did not cast doubt on such longstanding regulatory
measures as ‘prohibitions on the possession of firearms by felons ***.’ [CITATION.] We repeat
those assurances here.”).
¶ 80 In this case defendant argues that there is no historical analogue for a permanent, status-
based revocation of the right to keep and bear arms applicable to felons and therefore the AHC
- 36 - 1-23-1008
statute is not consistent with the Nation’s historical tradition of firearm regulation. This is, of
course, an argument that the AHC statute does not pass constitutional muster under the second
step of the Bruen analysis. Defendant admits that “[t]o evaluate the constitutionality of Illinois’
[AHC] statute this Court must answer two questions: (1) whether [defendant] falls within the
Second Amendment’s protections at all, and (2) if he does, whether the historical record justifies
a permanent ban on his ability to possess any firearm at any time.” (Emphasis added.) As for the
first question, defendant argues he is protected by the second amendment because it applies to
“all Americans.” Defendant cites [CITATION], for the
proposition that a felon’s possession of a firearm falls under the conduct protected by the second
amendment because, defendant argues, pursuant to [CITATION], “a felon’s status is irrelevant under
the first step of the Bruen test.” Defendant essentially argues that [CITATION] confirms that Bruen
abrogated any presumption that barring felons from possessing firearms is permissible under the
second amendment because Bruen and [CITATION] place the focus of the first step of the analysis on
conduct—the conduct of possessing a firearm—and not status—in this case the status of being a
felon.
¶ 81 We reject defendant’s assertion that his conduct is protected by the second amendment
and we disagree with the suggestion that a party’s status as a felon is “irrelevant at this stage of
the analysis.” [CITATION], ¶ 89. The [CITATION] court found that the conduct
at issue was “the defendant’s possession of the firearm after having been twice convicted under
any of the myriad of enumerated felonies [in the AHC statute], which in this case, both happen to
be nonviolent.” [CITATION], ¶ 86. Nonetheless, the court found that
“[u]nder Bruen, the first step asks only whether ‘the Second Amendment’s plain
text covers an individual’s conduct.’ [Citation.] This step does not contemplate
[SEGMENT 27]
- 37 - 1-23-1008
the actor or the subject. [Citations.] Accordingly, the defendant’s status as a felon
is irrelevant at this stage of the analysis. Instead, the defendant’s possession of a
firearm is ‘presumptively constitutional.’ [CITATION.]” Id.
We disagree.
¶ 82 Under [CITATION], the first step looks at the conduct actually being regulated:
“At the first step, the government may justify its regulation by
‘establish[ing] that the challenged law regulates activity falling outside the scope
of the right as originally understood.’ [CITATION.] The Courts of Appeals then
ascertain the original scope of the right based on its historical meaning.
[CITATION.]” (Emphases added.) [CITATION], at 18.
This court has recognized that “[f]irst, we must identify the conduct at issue to determine
whether that conduct falls under the ‘plain text’ of the second amendment.” [CITATION].
The conduct at issue under the AHC statute is not, broadly and
generally, possession of a firearm. If it was, it would probably be unconstitutional. [CITATION], at 71 (“New York’s proper-cause requirement violates the Fourteenth Amendment in that it
prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep
and bear arms.”). Rather, the conduct at issue under the AHC statute is the possession of firearms
by felons. “If the government can prove that the regulated conduct falls beyond the
Amendment’s original scope, ‘then the analysis can stop there; the regulated activity is
categorically unprotected.’ [CITATION.]” (Emphases added.) [CITATION], at 18.
¶ 83 In [CITATION], the Supreme Court’s first word was that it had “recognized that the Second and
Fourteenth Amendments protect the right of an ordinary, law-abiding citizens to possess a
- 38 -
====== End of Part of a Court Ruling ====== 1-23-1008
handgun in the home for self-defense.” [CITATION]
“Though the Bruen Court did not define ‘law-abiding citizen,’ previous
Supreme Court precedent identifies categories of people who have long been
lawfully prevented from bearing arms. In [CITATION], the
Supreme Court cautioned that
‘nothing in [its] opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of
arms.’ [CITATION]
There is little to expound here: by its plain language, the Supreme
Court explicitly sanctioned the prohibition on the possession of firearms by
felons.” [CITATION], ¶ 17.
¶ 84 Further, the second amendment “does not distinguish between violent felonies and non-
violent felonies.” [CITATION] In [CITATION], ¶ 37, the court held:
“Under the AHC and UUWF statutes, both of which are facially
constitutional, defendant is prohibited from possessing a firearm due to his status
as a felon, irrespective of the violent or nonviolent nature of his convictions. We
- 39 - 1-23-1008
decline to invade the province of the legislature to determine which convictions
warrant a loss of rights.” [CITATION], ¶ 37.
see also [CITATION], ¶ 15 (“defendant’s previous felony
convictions make him not a law-abiding citizen and, therefore, not protected by the second
amendment. By incurring a felony conviction, even a nonviolent felony conviction, a citizen
forever loses the constitutional right to have a firearm for the defense of his person and his
house”), [CITATION], ¶ 19 (rejecting the defendant’s
request for the court to “interpret ‘law-abiding citizens’ to include those who had been convicted
of nonviolent felonies”), [CITATION], ¶ 21 (citing [CITATION], ¶ 100). Thus, the constitutionality of disarming felons extends to nonviolent
felons.
¶ 85 We find that the regulated conduct under the AHC statute “falls beyond the
Amendment’s original scope” because the scope of the second amendment reaches only “law-
abiding citizens.” [CITATION] (“It is undisputed that petitioners Koch and Nash—
two ordinary, law-abiding, adult citizens—are part of ‘the people’ whom the Second Amendment
protects.”), [CITATION], ¶ 37 (“The Bruen Court could not have
been more clear that its newly announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like defendant.”), [CITATION], ¶ 54 (“Bruen limits the second amendment’s scope to (1) citizens who are (2) law-
abiding and (3) responsible, and (4) who use firearms for self-defense.”), [CITATION], ¶¶ 18-23. Defendant, a twice-convicted felon, is not a law-abiding citizen.
¶ 86 This conclusion is not “defeated by Rahimi,” as defendant suggests. In Rahimi, the
Supreme Court addressed the constitutionality under the second amendment of a statute that
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“prohibits an individual subject to a domestic violence restraining order from possessing a
firearm if that order includes a finding that he ‘represents a credible threat to the physical safety
of [an] intimate partner,’ or a child of the partner or individual.” [CITATION]. The
Court rejected the Government’s argument that Rahimi could be disarmed “simply because he is
not ‘responsible.’ ” Id. at 1903. The Court found that the term “responsible” is vague and that
“[i]t is unclear what such a rule would entail.” Id.
¶ 87 Although the Court “used the term ‘responsible’ to describe the class of ordinary citizens
who undoubtedly enjoy the Second Amendment right” the Court “did not define the term and
said nothing about the status of citizens who were not ‘responsible.’ ” But we do not find, despite
what defendant claims about the State’s argument, that defendant is not someone to whom the
second amendment applies because he is not “responsible.” The second amendment does not
protect defendant’s right to possess a firearm because he is not a law-abiding citizen.
¶ 88 Defendant cites a dissent in [CITATION] in an attempt to refute “the ‘law abiding *** citizen’
test.” The dissenting justice wrote:
“At the outset of this case, the Government contended that the Court has
already held the Second Amendment protects only ‘responsible, law-abiding’
citizens. [Citation.] The plain text of the Second Amendment quashes this
argument. The Amendment recognizes ‘the right of the people to keep and bear
Arms.’ (Emphasis added.) When the Constitution refers to ‘the people,’ the term
‘unambiguously refers to all members of the political community.’ ” [CITATION] (Thomas, J., dissenting).
We reject the dissent’s contention that the second amendment protects anyone other than “law
abiding citizens.” See Baker, 2023 IL App (1st) 220328, ¶ 37 (“The Bruen Court could not have
- 41 - 1-23-1008
been more clear that its newly announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like defendant.”).
¶ 89 Statutes prohibiting felons, including nonviolent felons, from possessing firearms are
presumptively constitutional. [CITATION] (“Heller never established a categorical
rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact,
our opinion stated that many such prohibitions, like those on the possession of firearms by
‘felons and the mentally ill,’ are ‘presumptively lawful.’ ”). Therefore, the analysis stops here
[CITATION]; the AHC statute is constitutional under the second amendment as
applied to defendant—a twice convicted felon—and, necessarily, it is also facially constitutional
[CITATION].
¶ 90 CONSTITUTIONALITY OF AHC UNDER ARTICL I, SECTION 22
¶ 91 Defendant argues the AHC statute is unconstitutional on its face and as applied to
defendant under article I, section 22 of the Illinois constitution. Article I, section 22, reads as
follows: “Subject only to the police power, the right of the individual citizen to keep and bear
arms shall not be infringed.” Ill. Const. art. I, § 22. Defendant argues that by conferring the right
to keep and bear arms on “the individual citizen” rather than “the People” (compare U.S. Const.
amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.”)), the right to keep and bear arms
under the Illinois constitution is broader than under the second amendment and protects a
broader class of individuals, including those “with a legal status that might otherwise place them
outside the political community,” that includes defendant “as an ‘individual citizen’ of this
[SEGMENT 28]
State.”
- 42 - 1-23-1008
¶ 92 Defendant also argues that the prefatory language “[s]ubject only to the police power”
does not narrow defendant’s right so as to permit permanent felon dispossession. Defendant
argues that the record of the Constitutional Convention shows that the delegates were concerned
with regulating “certain types of arms under the police power, not certain categories of people.”
To the extent the delegates expressed concern about those who committed crimes possessing
firearms, the comments reveal a greater concern for “felony convictions that revealed a tendency
for violence,” and those comments “have to be read consistently with the felon dispossession
laws in effect at the time.” Defendant argues that at the time of the convention there was no law
permanently dispossessing felons of firearms, therefore, the language “[s]ubject to the police
power” “cannot be read to countenance permanent felon dispossession.” As applied to defendant,
defendant argues that “because [defendant] was not using the gun in a dangerous way, nor were
his prior convictions violent, the Illinois Constitution as applied to [defendant] does not preclude
his possessing a gun.”
¶ 93 The State responds that assuming arguendo that article I, section 22, does embrace
defendant regardless of his felon status, the AHC statute is a proper exercise of the police power.
In apparent response to defendant’s argument that the meaning of “the police power” in article I,
section 22, is only the power to restrict violent felons’ possession of firearms temporarily, the
State argues that, as explained in [CITATION], ¶ 41, our supreme
court in [CITATION], “recognized that
Illinois’ police power was ‘intended to provide an “extraordinary degree of control” over the
possession of firearms’ and allows laws ‘restraining or prohibiting anything harmful to the
welfare of the people.’ [CITATION.]” The State argues that this court may not overrule that finding
by our supreme court.
- 43 - 1-23-1008
¶ 94 In Kalodimos, a village ordinance completely banned the possession of all operable
handguns with limited exceptions. [CITATION]. Our supreme court had to
decide the scope of article I, section 22, and whether the ordinance “passes muster under it.” [CITATION].
The court found that the difference in the language in article I, section 22 from the language in
the second amendment “were intended to broaden the scope of the right to arms from a collective
one applicable only to weapons traditionally used by a regulated militia [citation], to an
individual right covering a wider variety of arms.” [CITATION]. However, “the explicit recognition
of ‘the police power’ [is] a limitation on the liberty the provision affords.” [CITATION]. Based on the
report of The Bill of Rights Committee at the Constitutional Convention, our supreme court
recognized that “the possession and use of arms is subject to an extraordinary degree of control
under the police power.” (Internal quotation marks omitted.) [CITATION]. The committee report
described regulatory measures “that had been approved in other States as not infringing on
individual right to arms” including “a total prohibition of ‘the sale of some weapons in some
circumstances.’ ” [CITATION].
¶ 95 Our supreme court acknowledged, similarly to defendant’s argument in this case, that
"[t]he meaning of a constitutional provision depends, of course, on the common understanding of
the citizens who, by ratifying the Constitution, gave it life.” [CITATION]. However, the court also
found (and defendant did not address) that “[t]his understanding *** is best determined by
referring to the common meaning of the words used.” [CITATION]. Our supreme court found
that the plain language of article I, section 22, “leaves the right to bear any type of arms subject
to the police power” and “belied any assertion that a majority of the voters must have interpreted
the plain words of the provision as ruling out any specific regulatory measure.” [CITATION]. “The
official explanation which all voters received also left considerable leeway for regulation of guns
- 44 - 1-23-1008
by stating that under section 22 ‘the right of the citizen to keep and bear arms cannot be
infringed, except as the exercise of this right may be regulated by appropriate laws to safeguard
the welfare of the community.’ [CITATION].” Id. The court found that this interpretation is
“consistent with the interpretation of the provision advanced by the delegates who voted to adopt
it.” Id. In rejecting an argument that the “police power” in article I, section 22 permitted the
regulation of all classes of firearms but not a complete prohibition of any class of firearm, our
supreme court stated that it “has long recognized that the police power comprehends laws
‘restraining or prohibiting anything harmful to the welfare of the people’ [CITATION] and no
convincing evidence has been produced that the voters ascribed a different meaning to the term
in the context of section 22.” (Emphasis added.) Id. at 496.
¶ 96 Because the issue in [CITATION] was a complete ban on handguns, our supreme court held
that, “[b]ased on the floor debates and the official explanation, as well as on the language of the
provision, it is apparent to us that section 22, as submitted to the voters, meant that a ban on all
firearms that an individual citizen might use would not be permissible, but a ban on discrete
categories of firearms, such as handguns, would be.” Id. at 498. Notably, the court rejected an
argument that “there is no principle which permits the complete abridgment of one form of
constitutionally protected behavior whenever other forms of behavior which enjoy the same form
of protection and lead to a substantially similar end are permitted.” (Emphasis added.) Id. at 499.
¶ 97 We interpret [CITATION] to mean the plain language of article I, section 22 does not rule
out a complete and permanent abridgment of possession of firearms by felons. The [CITATION]
court considered whether the ordinance at issue was a proper exercise of the police power.
Although a different statute is involved here, apropos of this case our supreme court found that
“the right to arms secured by the Illinois Constitution, which did not exist prior to 1970, is
- 45 - 1-23-1008
subject, as we have explained, to substantial infringement in the exercise of the police power
even though it operates on the individual level.” Id. at 509. Subsequently, the Third District of
this court held that “the AHC *** statute[ is] a proper exercise of the state’s police power, which
allows the state to exert, through legislation, control over the dangers posed by firearms and the
people who might use them to do harm.” [CITATION], ¶ 43.
¶ 98 We agree that the AHC statute is a proper exercise of the state’s police power that is
contemplated by the “grant [of] an ‘extraordinary degree of control’ over the use of firearms” in
article I, section 22. [CITATION], ¶ 42 (quoting [CITATION], 103 Ill. 2d at
491-92). To any extent [CITATION] might be read to hold the AHC statute is a proper exercise of the
state’s police power on violent felons, we disagree; and, regardless, the point of its holding is
that the police power “allows the state to exert, through legislation, control over the dangers
posed by firearms and the people who might use them to do harm.” [CITATION], ¶ 43. The legislature could prohibit felons from possessing firearms to safeguard the
welfare of the community. [CITATION], 2024 IL App (1st) 230569, ¶ 30 (“nothing in article I, section
22, of the Illinois Constitution suggests that the right to bear arms is unlimited and bars the State
from prohibiting felons from bearing arms.”), see also [CITATION], 2023 IL App (1st)
220959-U, ¶ 53 (UUWF “is a proper exercise of police power, and therefore defendant has not
shown that the statute violates the Illinois Constitution on its face or as applied to him.”).
¶ 99 The AHC statute is constitutional as applied to defendant and on its face under article I,
section 22, of the Illinois constitution.
¶ 100 CONCLUSION
¶ 101 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 102 Affirmed.
- 46 -
NOTICE
IL App (4th) 240315-U FILED
This Order was filed under September 3, 2024
Supreme Court Rule 23 and is NO. 4-24-0315 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Tazewell County
LUCAS S. THOMAS, ) No. 22CF538
Defendant-Appellant. )
) Honorable
) Christopher R. Doscotch,
) Judge Presiding.
[SEGMENT 29]
PRESIDING JUSTICE CAVANAGH delivered the judgment of the court.
Justices Steigmann and Grischow concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding the Illinois armed habitual criminal statute
does not violate the United States Constitution.
¶2 In November 2023, defendant, Lucas S. Thomas, was sentenced to 19 years’
imprisonment following his guilty plea to being an armed habitual criminal (720 ILCS
5/24-1.7(a) (West 2022)). On appeal, defendant argues the armed habitual criminal statute
violates the second amendment (U.S. Const., amend. II) on its face pursuant to the United States
Supreme Court’s decision in [CITATION]. We affirm.
¶3 I. BACKGROUND
¶4 In October 2022, the State charged defendant by indictment with (1) being an
armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2022)) for possessing a firearm after having been convicted of residential burglary in Woodford County case No. 08-CF-82 and
unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333; (2) unlawful
possession of a weapon by a felon ([CITATION]) for possessing said firearm after having been
convicted in Peoria County case No. 11-CF-333; (3) aggravated domestic battery ([CITATION])
for intentionally strangling a family or household member; (4) aggravated battery ([CITATION])
for holding a gun, a deadly weapon, to the head of another and thereby making
contact of an insulting or provoking nature; (5) domestic battery ([CITATION]) for causing
bodily harm by striking a family or household member; and (6) resisting a peace officer ([CITATION])
for refusing to place his hands behind his back, tensing up, and struggling with an
arresting officer, thereby causing the officer to be injured.
¶5 In July 2023, defendant entered into a partially negotiated plea agreement wherein
he pleaded guilty to the armed habitual criminal charge. In exchange, the State dismissed the
remaining charges, agreed not to file any uncharged pending cases against defendant, and agreed
not to refer any cases regarding defendant for federal prosecution. However, the State reserved
the right to utilize any uncharged conduct and the dismissed charges in aggravation at
sentencing. The State proffered a factual basis, citing defendant’s aforementioned felony
convictions from Woodford and Peoria counties. Following the issuance of a search warrant,
officers discovered a handgun in defendant’s bedroom. Additionally, a search of defendant’s
phone revealed a photograph of him holding said handgun. The trial court accepted defendant’s
plea as knowing and voluntary.
¶6 A sentencing hearing was held in November 2023. A presentence investigation
report (PSI) was admitted without objection. According to the PSI, defendant had been convicted
of residential burglary in 2008 and twice convicted of unlawful possession of a weapon by a
felon in 2011 and 2015, respectively.
¶7 The State introduced into evidence the video showing defendant’s arrest and the
recovery of the firearm and the testimony of detective Robert Vester of the East Peoria Police
Department. Vester testified, among other things, to discovering the firearm in defendant’s
bedroom, to investigating defendant for selling stolen all-terrain vehicles, and that, according to
defendant, he had purchased the firearm at issue in St. Louis, Missouri, for self-defense.
¶8 Defendant presented letters from family and friends in mitigation. A neighbor and
friend testified defendant was not a violent person and only obtained the firearm for self-defense.
¶9 Defendant gave a statement in allocution wherein he acknowledged his mistake in
purchasing the firearm. He argued a convicted felon should not lose his rights under the second
amendment and contended he never used or brandished the firearm but was the victim of two
other individuals threatening him with a firearm.
¶ 10 The trial court considered the PSI, evidence presented in aggravation and
mitigation, defendant’s statement in allocution, arguments from the parties, the statutory and
nonstatutory factors in aggravation and mitigation, the history and character of defendant, and
the seriousness of the offense in light of the objective of restoring defendant to useful citizenship.
The court noted the firearm had a “40-round extended clip” and a “green laser tag site,”—
characteristics typically not found on a weapon used merely for self-defense. Defendant
interjected that those items came with the weapon when he bought it. The court rebutted that
defendant, nonetheless, bought it that way. The court sentenced defendant to 19 years’
imprisonment. Defendant filed a motion to reconsider sentence, arguing the court failed to
consider certain statutory factors in mitigation and that his sentence was excessive. The court
denied the motion.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 Defendant claims the armed habitual criminal statute is unconstitutional on its
face as violative of the second amendment. See [CITATION], ¶ 49 (“Defendants
convicted under a facially unconstitutional statute may challenge the conviction at any time, even
after a guilty plea, because the state or government had no power to impose the conviction to
begin with.”). We disagree. The Criminal Code of 2012 (Code) (720 ILCS 5/1-1 et seq. (West
2022)) provides as follows:
“(a) A person commits the offense of being an armed habitual criminal if
he or she receives, sells, possess, or transfers any firearm after having been
convicted a total of 2 or more times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use
of a weapon; aggravated discharge of a firearm; vehicular hijacking;
aggravated vehicular hijacking; aggravated battery of a child as described
in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05; intimidation;
aggravated intimidation; gunrunning; home invasion; or aggravated
battery with a firearm as described in Section 12-4.2 or subdivision (e)(1),
(e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled substances Act or the
Cannabis Control Act that is punishable as a Class 3 felony or higher.”
ILCS 5/24-1.7 (West 2022).
¶ 14 Accordingly, defendant’s stipulated convictions of residential burglary (a forcible
felony pursuant to section 2-8 of the Code (id. § 2-8)) in Woodford County case No. 08-CF-82
and unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333 were
qualifying convictions under the armed habitual criminal statute.
¶ 15 Defendant relies on the United States Supreme Court’s decision in [CITATION]. In
[CITATION], the Supreme Court held, “When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that conduct,” and the government
“must then justify its regulation by demonstrating that [the regulation] is consistent with the
Nation’s historical tradition of firearm regulation.” [CITATION], 597 U.S. at 24 (2022).
¶ 16 In response to defendant’s facial challenge, the State cites numerous appellate
court decisions relevant to the issue on appeal: [CITATION],
¶¶ 37-39 (finding [CITATION] did not apply to the defendant’s as applied constitutional challenge
under the second amendment of the unlawful use of a weapon by a felon statute); [CITATION],
¶¶ 14-22 (finding the armed habitual criminal statute did not
violate the second amendment pursuant to [CITATION],
¶¶ 19-29 (finding [CITATION] did not apply to the defendant’s as applied challenge to the unlawful
possession of a weapon by a felon statute); [CITATION],
¶¶ 143-158 (finding [CITATION] did not apply to the defendant’s as applied challenge to the unlawful
possession of a weapon by a felon statute); [CITATION],
¶¶ 51-60 (finding the armed habitual criminal statute did not violate the second amendment
pursuant to Bruen); [CITATION], ¶¶ 18-22 (finding the firearm
owner’s identification card requirement constitutional post-Bruen); [CITATION], ¶¶ 11-16 (finding Bruen did not apply to the defendant’s facial
constitutional challenge under the second amendment of the unlawful use of a weapon by a felon
statute).
¶ 17 Defendant counters that the cases cited by the State were wrongly decided and
notes the appellate court in [CITATION], and [CITATION],
found the second amendment’s plain language presumptively
protected convicted felons. Furthermore, the cases cited by the State were all decided without the
benefit of the Supreme Court’s decision in [CITATION].
¶ 18 In Brooks, the defendant was convicted of being an armed habitual criminal.
[CITATION], ¶ 1. On appeal, the defendant contended the armed habitual
criminal statute as applied to him “impermissibly criminalized his simple possession of a firearm
[SEGMENT 30]
exclusively on the basis of his two prior nonviolent felony convictions.” Id. ¶ 55. Following the
framework from Bruen, the court in [CITATION] first considered whether the plain language of the
second amendment protected the defendant’s right to keep and bear arms. Id. ¶¶ 69, 79-87. The
[CITATION] concluded the defendant had been convicted under the armed habitual criminal
statute for possessing a firearm after having been twice convicted of two nonviolent felonies. Id.
¶ 86. After observing the Supreme Court, in [CITATION], held “to keep arms” simply meant to “have weapons,” the [CITATION] reasoned to
“have,” defined as “to be in possession of,” meant the second amendment’s plain language
presumptively protected the defendant’s conduct of possessing a firearm. (Internal quotation
====== End of Ruling ====== marks omitted.) [CITATION] The court then went on to determine
the armed habitual criminal statute was consistent with the nation’s tradition of firearm
regulation. [CITATION]
¶ 19 The court in Travis, adopted the reasoning in [CITATION] and found “the second
amendment’s plain language does not exclude felons.” [CITATION]
Similarly, the Travis court also concluded the armed habitual criminal statute was consistent with
the nation’s tradition of firearm regulation. [CITATION]
¶ 20 In Rahimi, the defendant was charged with possessing a firearm while subject to a
domestic violence restraining order. [CITATION] The court noted,
where “a restraining order contains a finding that an individual poses a credible threat to the
physical safety of an intimate partner, that individual may—consistent with the Second
Amendment—be banned from possessing firearms while the order is in effect.” [CITATION]
Moreover, “our Nation’s firearm laws have included provisions preventing individuals who
threaten physical harm to others from misusing firearms.” [CITATION] The court went on to clarify that
“the Second Amendment permits more than just those regulations identical to ones that could be
found in 1791.” [CITATION] “A court must ascertain whether the new law is ‘relevantly
similar’ to laws that our tradition is understood to permit.” [CITATION] The Rahimi court rejected
the notion that the defendant could be disarmed “simply because he is not ‘responsible.’ ” [CITATION] The court noted that the Heller and Bruen decisions had used the term “responsible” to
“describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right,”
but the term was never defined to reveal those who would be considered “not ‘responsible.’ ” [CITATION]
¶ 21 In essence, defendant asks that we, like the courts in [CITATION] and Travis, find his
mere possession of a firearm was presumptively protected by the second amendment. Then,
unlike in Brooks and [CITATION], but following guidance from Rahimi, he asks us to find the armed
habitual criminal statute is inconsistent with the nation’s tradition of firearm regulation, and,
thus, unconstitutional. For the reasons that follow, we are unpersuaded by defendant’s arguments
on appeal. See [CITATION]
¶ 22 This court, in [CITATION], stated:
“ ‘The constitutionality of a statute is analyzed under well-settled
principles. Statutes are presumed constitutional, and to rebut that presumption, the
party challenging a statute’s constitutionality has the burden of establishing a
clear violation. [Citation.] A party raising a facial challenge to a statute faces a
particularly heavy burden. [Citation.] A statute will be deemed facially
unconstitutional only if there is no set of circumstances under which the statute
would be valid. [Citation.] The particular facts related to the challenging party are
irrelevant. [Citation.] If it is reasonably possible to construe the statute in a way
that preserves its constitutionality, we must do so.’ ” (quoting [CITATION]).
¶ 23 In [CITATION], we cited [CITATION] for the proposition that
“[t]he Bruen Court could not have been more clear that its newly announced test applied only to
laws that attempted to regulate the gun possession of law-abiding citizens, and not felons like
[the] defendant.” (Internal quotation marks omitted.) [CITATION].
Bruen specifically upheld an earlier statement from Heller that courts should not “ ‘cast doubt on
longstanding prohibitions on the possession of firearms by felons.’ ” Bruen, 597 U.S. at 81
(Kavanaugh, J., concurring, joined by Roberts, C.J.) (quoting [CITATION]). We find
nothing in defendant’s arguments that would persuade us to believe that previous decisions—
including our own—finding Bruen does not apply to felons were incorrect. As a convicted felon,
Bruen does not apply to defendant. See, e.g., [CITATION], ¶ 15.
¶ 24 Additionally, Rahimi does not help defendant here because as the Supreme Court
explained, “[CITATION] never established a categorical rule that the Constitution prohibits regulations
that forbid firearm possession in the home. In fact, our opinion stated that many such
prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are
‘presumptively lawful.’ ” [CITATION], 144 S. Ct. at 1902 (quoting [CITATION]). Thus, Rahimi does not support the proposition defendant propounds that he is
presumptively protected under the second amendment; to the contrary, the armed habitual
criminal statute prohibiting defendant, a convicted felon, from possessing a firearm is
presumptively lawful. Id. Accordingly, defendant has failed to show the armed habitual criminal
statue is facially unconstitutional.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the trial court’s judgment.
¶ 27 Affirmed.
```plaintext
2024 IL App (1st) 230428-U
No. 1-23-0428
Order filed July 8, 2024.
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 55380
)
CODY WRIGHT, ) The Honorable
) Laura Ayala-Gonzalez,
Defendant-Appellant. ) Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Coghlan concurred in the judgment.
ORDER
¶1 Held: The circuit court’s denial of defendant’s petition for relief from judgment is
affirmed over his argument that the unlawful use or possession of a weapon by a
felon statute (720 ILCS 5/24-1.1(a) (West 2008)) is facially unconstitutional under
the second amendment and the Illinois Constitution.
¶2 Defendant Cody Wright appeals from the circuit court’s order dismissing his petition for
relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1401 (West 2022)). He argues that his conviction for unlawful use or possession of a
``` No. 1-23-0428
weapon by a felon (UUWF) is void because the statute governing the offense (720 ILCS 5/24-
1.1(a) (West 2008)) is facially unconstitutional under the United States and Illinois Constitutions.
For the following reasons, we affirm.
¶3 On November 19, 2008, defendant entered a negotiated guilty plea to one count of UUWF
in exchange for three years’ imprisonment and the nolle prosequi of other charges. He did not
move to withdraw his plea or file a direct appeal.
¶4 On December 20, 2022, defendant filed a pro se petition for relief from judgment pursuant
to section 2-1401 of the Code. He contended the UUWF statute was unconstitutional pursuant to
[CITATION], and [CITATION], and his 2008
conviction was therefore invalid and should be vacated.
¶5 On February 6, 2023, the circuit court denied defendant’s petition, stating [CITATION] did not
apply to defendant’s UUWF offense. Defendant filed a timely appeal.
¶6 On appeal, defendant requests we vacate his conviction because, in light of [CITATION],
the UUWF statute under which he was
convicted is facially unconstitutional under the second amendment to the United States
Constitution (U.S. Const., amend. II) and Article I, section 22 of the Illinois Constitution (Ill.
Const. 1970, art. I, § 22).
¶7 Section 2-1401 of the Code provides a statutory procedure by which final judgments may
be vacated more than 30 days after entry. 735 ILCS 5/2-1401(a) (West 2022); [CITATION], ¶ 18. Generally, a petition under section 2-1401 must be filed within two years
[SEGMENT 31]
of judgment. 735 ILCS 5/2-1401(c) (West 2022). However, the time limit does not apply when a
defendant alleges his conviction or sentence is based on a facially unconstitutional statute and is
No. 1-23-0428
therefore void ab initio. See [CITATION], ¶¶ 27-28. We review de novo a denial of a
section 2-1401 petition on legal grounds. [CITATION], ¶ 13. We also
review de novo the constitutionality of a statute, a question of law. [CITATION], ¶ 9 (citing [CITATION], ¶ 26).
¶8 Initially, the State responds that defendant has waived any challenge to his conviction by
pleading guilty and failing to move to withdraw his plea or pursue a direct appeal. The State is
correct that a valid guilty plea generally waives all non-jurisdictional defects, including
constitutional ones. [CITATION], ¶ 20. However, a guilty plea does not
preclude a defendant from arguing that a statute is facially unconstitutional and void ab initio, a
challenge that may be raised “at any time.” [CITATION], 542-43 (2005) (on
direct appeal, defendant could argue he was sentenced under an unconstitutional statute despite
pleading guilty and not making the argument in his motion to withdraw his plea); see also [CITATION], ¶¶ 8-10 (citing Guevara and finding on appeal from
dismissal of section 2-1401 petition that the defendant’s guilty plea did not waive his argument
that he was convicted under facially unconstitutional statute). 1 Thus, we will consider the merits
of defendant’s argument.
¶9 Section 24-1.1(a) of the Criminal Code of 1961, under which defendant was convicted of
UUWF, provides:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
Nonprecedential orders entered under Supreme Court Rule 23(b) after January 1, 2021, may be
cited for persuasive purposes. See Ill. S. Ct. R. 23(b), (e)(1) (eff. Feb. 1, 2023).
No. 1-23-0428
-1 of [the Criminal Code of 1961] or any firearm or any firearm ammunition if the person
has been convicted of a felony under the laws of this State or any other jurisdiction. This
Section shall not apply if the person has been granted relief by the Director of the
Department of State Police under Section 10 of the Firearm Owners Identification Card
Act.” 720 ILCS 5/24-1.1(a) (West 2008).
¶ 10 Defendant argues that the statute is unconstitutional under the second amendment on its
face. Facial challenges are “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional, and to rebut that presumption and show a statute is facially
unconstitutional, a party must establish that there are no circumstances under which the statute
could be validly applied. [CITATION], ¶ 10. “If it is reasonably possible
to construe the statute in a way that preserves its constitutionality, we must do so.” Id.
¶ 11 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION],
in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” [CITATION]. In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION]. The Court
reiterated that its decision in [CITATION] “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” Id. at 786 (quoting [CITATION] at
626-27).
No. 1-23-0428
¶ 12 Following Heller and McDonald, courts developed a two-step test for evaluating second
amendment challenges to firearm regulations. See [CITATION]. The first
step was considering whether the regulated activity fell within the scope of the second amendment
as it was originally understood. Id. If the government did not show the regulated activity was
outside the scope of the second amendment, the second step was conducting a “means-end
analysis.” (Internal quotation marks omitted.) Id. In that analysis, courts weighed the severity of
the regulation against the ends the government sought to achieve in enacting the regulation. Id.
¶ 13 However, in 2022 the Supreme Court issued Bruen, in which it announced a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]). The Court condemned the means-end analysis. Id. (citing [CITATION]).
Rather, under Bruen, where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
second amendment to mean. [CITATION].
¶ 14 Here, defendant claims that the conduct prohibited by the UUWF statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
protected. We disagree. Bruen did not provide that the second amendment granted an unrestricted
right to carry firearms. Rather, it explained that:
No. 1-23-0428
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [Citation.] Those
restrictions, for example, limited the intent for which one could carry arms, the manner by
which one carried arms, or the exceptional circumstances under which one could not carry
arms, such as before justices of the peace and other government officials.” [CITATION] at 70.
¶ 15 In [CITATION], and [CITATION], the Supreme Court established that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] at 8-10 (agreeing
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also [CITATION] at 635 (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); [CITATION] at
786 (reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
¶ 16 In two recent cases we rejected as-applied constitutional challenges to the UUWF statute
on that basis, concluding that [CITATION] did not apply to laws that attempted to regulate firearm
possession by felons. See [CITATION], 2023 IL App (1st) 220328, ¶ 37 (noting that the justices
in the [CITATION] majority repeated the phrase “law-abiding” 18 times in their majority opinion and
concurrences); [CITATION], 2023 IL App (1st) 221264, ¶¶ 27-28 (agreeing with [CITATION] and
noting that [CITATION] suggested that felons did not maintain second amendment rights). As we held
that the UUWF statute could be validly applied to the defendants in [CITATION] and [CITATION], defendant’s
facial challenge to the statute must fail. See [CITATION], 2021 IL 125889, ¶ 10 (a statute is only
facially unconstitutional if there are no circumstances under which it could be validly applied); see
No. 1-23-0428
also [CITATION], ¶¶ 18-22 (following Baker to reject facial
challenge to UUWF statute).
¶ 17 Defendant requests we depart from our holdings in [CITATION] and [CITATION] and instead follow
the reasoning in [CITATION], ¶¶ 88-89, which rejected the argument that
the second amendment did not protect the conduct of possessing a firearm after being convicted
of a felony. We decline defendant’s invitation to do so. That said, even were we to depart from the
holdings in [CITATION] and [CITATION], we would still find defendant’s facial challenge unavailing under
the next step provided by Bruen, as there is sufficient historical precedent to ban felons from
possessing firearms.
¶ 18 Another district of this court recently considered and rejected a defendant’s facial challenge
to the UUWF statute under the second step of the Bruen analysis. [CITATION]. In [CITATION], the court reiterated that the Supreme Court in Heller and Bruen explained
[SEGMENT 32]
“the right to bear arms has never been unlimited,” but “ ‘[t]hroughout modern Anglo-American
history,’ ” had been “ ‘subject to well-defined restrictions.’ ” Id. ¶ 27 (quoting Bruen, 597 U.S. at
38). Further, although felons were not broadly prohibited from possessing firearms until the
twentieth century, “such laws evolved from preexisting prohibitions restricting access to firearms,”
including by certain groups of people. Id. ¶¶ 28-29. In colonial America, for example, legislatures
“ ‘disarm[ed] individuals whose status indicated that they could not be trusted to obey the law.’ ”
Id. ¶¶ 30-31 (quoting [CITATION], ¶ 94). In [CITATION], the court therefore
concluded that, under Bruen, there was sufficient historical precedent to make the UUWF statute
facially constitutional, which it also noted had almost no effect on any law-abiding citizen’s right
to armed self-defense. Id. ¶¶ 32-33.
No. 1-23-0428
¶ 19 We also find instruction in [CITATION], in which we considered an as-applied constitutional
challenge under Bruen to the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2016)
(criminalizing possession of firearms after twice being convicted of certain felonies)). [CITATION]. In [CITATION], after concluding that the second amendment
encompassed the conduct at issue, we found that the legislature’s ability to prohibit possession of
firearms by twice-convicted felons was consistent with the national historical tradition of firearm
regulation. [CITATION]. The historical analogues included “widespread acceptance of the
legislatures’ authority to disarm felons” during the founders’ era. [CITATION].
¶ 20 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
is wrongly decided.2 We decline to revisit [CITATION] here. Rather, we will follow [CITATION], and [CITATION] and reject defendant’s facial challenge to the UUWF statute under the second
amendment.
¶ 21 Defendant next claims that, even if the UUWF statute comports with the second
amendment, it is facially unconstitutional under Article I, section 22 of the Illinois Constitution
(Ill. Const. 1970, art. I, § 22). The courts in [CITATION] and [CITATION] also considered this argument, and
rejected it. [CITATION]. We do the same here.
¶ 22 Article I, section 22 provides that, “Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed.” Ill. Const. 1970, art. I, § 22.
Defendant notes our supreme court has stated that the phrase “the individual citizen” in that section
Defendant does not discuss [CITATION], which was decided on April 19, 2024, after defendant filed
his initial brief and the State filed its response brief, and shortly before defendant filed his reply brief on
April 30, 2024.
No. 1-23-0428
is broader than the second amendment’s phrase “the people.” (Internal quotation marks omitted.)
[CITATION]
¶ 23 However, the police power referenced in Article I, section 22 is “a limitation on the liberty
the provision affords.” Id. In [CITATION], our supreme court stated that the possession of firearms
under section 22 is “ ‘subject to an extraordinary degree of control under the police power’ ”
because firearms “ ‘pose an extraordinary threat to the safety and good order of society.’ ” Id. at
491-92 (quoting Report of the Bill of Rights Committee on the Preamble and Bill of Rights, 6
Record of Proceedings, Sixth Illinois Constitutional Convention 88 (1970)).
¶ 24 We have further recognized that “police power includes the power to regulate certain
aspects of gun possession and ownership.” [CITATION] ¶ 23
(citing McDonald, 561 U.S. at 786). And, as noted, the Supreme Court has explained that the right
of law-abiding citizens to use firearms “did not cast doubt on *** ‘prohibitions on the possession
of firearms by felons.’ ” McDonald, 561 U.S. at 786 (quoting Heller, 554 U.S. at 626-27).
Therefore, the UUWF statute is a proper exercise of police power and does not violate the Illinois
Constitution on its face. See [CITATION] (same).
¶ 25 In sum, section 24-1.1 of the Criminal Code of 1961 is not facially unconstitutional under
the second amendment or the Illinois Constitution. Therefore, the circuit court did not err in
dismissing defendant’s petition for relief from judgment.
¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 27 Affirmed.
====== End of the Part of the Court Ruling ======
2024 IL App (1st) 230968-U
No. 1-23-0968
Order filed July 8, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 3622
)
DASHAWN CARLDWELL, ) Honorable
) William G. Gamboney,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Justices Lavin and Coghlan concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for unlawful use or possession of a weapon by a
felon (UUWF) over his claim that the UUWF statute is facially unconstitutional
under the second amendment.
¶2 Following a bench trial, defendant Dashawn Carldwell was convicted of unlawful use or
possession of a weapon by a felon (UUWF) and sentenced to 4½ years’ imprisonment. On appeal,
he argues the UUWF statute under which he was convicted (720 ILCS 5/24-1.1(a) (West 2022)) No. 1-23-0968
is facially unconstitutional under the second amendment to the United States Constitution (U.S.
Const., amend. II). For the following reasons, we affirm.
¶3 Defendant was charged by indictment with, inter alia, UUWF based on knowingly
possessing a firearm after having previously been convicted of a felony.
¶4 At trial, Chicago police officer Isaiah Perez testified that, around 10:49 p.m. on March 7,
2022, he and two partners responded to a vehicle accident at the intersection of Division Street and
Cicero Avenue, in Chicago. He observed a crashed van at the north end of the intersection. As the
officers spoke to an occupant of the van, a woman approached and indicated that another vehicle
that had been involved in the accident was further north on Cicero. The officers drove north on
Cicero and Perez observed a crashed, unoccupied vehicle. A man approached and told the officers
that the person from that vehicle had run north on Cicero and then west on Potomac Avenue.
¶5 The officers drove to that area and Perez observed a man running north in an alley, “about
a street and a half” away from them. The officers drove into the alley and closed the distance.
When the officers were 100 to 300 feet from the man, he turned west into another alley. From 100
to 150 feet, Perez observed a dark, L-shaped object in the man’s hands that Perez believed was a
firearm. The man tossed the object over a fence. He continued running down the alley a short
distance, then stopped and raised his hands. The officers exited their vehicle and detained him.
Perez identified him in court as defendant. Officers ultimately recovered a loaded, black 9-
No. 1-23-0968
millimeter pistol from a backyard where Perez believed defendant had tossed the firearm. The
State published footage from Perez’s body-worn camera and he narrated the events depicted.1
¶6 The State entered stipulations that defendant had not been issued a valid firearm owner’s
identification card (FOID card) or concealed carry license (CCL), and he had previously been
convicted of a felony.
¶7 Following argument, the court found defendant guilty. The court denied defendant’s
motion for a new trial. Following a hearing, the court sentenced defendant to 4½ years’
imprisonment. The court denied defendant’s motion to reconsider the sentence.
¶8 On appeal, defendant argues that, in light of the United States Supreme Court’s decision in
[CITATION], the UUWF statute under which he was convicted is facially unconstitutional under the second amendment to the United States Constitution (U.S. Const., amend. II).
¶9 Whether a statute is constitutional is a question of law we review de novo. [CITATION].
[SEGMENT 33]
¶ 10 Section 24-1.1(a) of the Criminal Code of 2012 provides:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
-1 of [the Criminal Code of 2012] or any firearm or any firearm ammunition if the person
has been convicted of a felony under the laws of this State or any other jurisdiction. This
The record on appeal does not include the correct video. Regardless, the video would have no
effect on our disposition of this appeal as defendant’s lone argument is that the statute under which he was
convicted is facially unconstitutional, an issue for which “[t]he particular facts related to the challenging
party are irrelevant.” [CITATION].
No. 1-23-0968
Section shall not apply if the person has been granted relief by the Director of the Illinois
State Police under Section 10 of the Firearm Owners Identification Card Act.” 720 ILCS
/24-1.1(a) (West 2022).
¶ 11 Defendant argues that the statute is unconstitutional under the second amendment on its
face. Facial challenges are “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional, and to rebut that presumption and show a statute is facially
unconstitutional, a party must establish that there are no circumstances under which the statute
could be validly applied. [CITATION], ¶ 10. “If it is reasonably possible
to construe the statute in a way that preserves its constitutionality, we must do so.” Id. A defendant
may challenge the constitutionality of a statute at any time, even for the first time on appeal. See
[CITATION], ¶ 8.
¶ 12 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” [CITATION], 635 (2008). In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION], 742 (2010). The Court
reiterated that its decision in [CITATION] “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” Id. at 786 (quoting [CITATION] at
626-27).
No. 1-23-0968
¶ 13 Following Heller and McDonald, courts developed a two-step test for evaluating second
amendment challenges to firearm regulations. See [CITATION]. The first
step was considering whether the regulated activity fell within the scope of the second amendment
as it was originally understood. Id. If the government did not show the regulated activity was
outside the scope of the second amendment, the second step was conducting a “means-end
analysis.” (Internal quotation marks omitted.) Id. In that analysis, courts weighed the severity of
the regulation against the ends the government sought to achieve in enacting the regulation. Id.
¶ 14 However, in 2022 the Supreme Court issued Bruen, in which it announced a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]). The Court condemned the means-end analysis. Id. (citing [CITATION]). Rather, under Bruen, where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
second amendment to mean. [CITATION] ¶ 70 (citing [CITATION]).
¶ 15 Initially, the State responds that in this case we need not reach the analytical framework
that Bruen provided. The State notes that Bruen concerned a portion of a New York statute that
only issued licenses to carry a firearm outside one’s home or place of business to those who showed
that “proper cause” existed. [CITATION]. The Court differentiated such a “may-issue”
licensing regime from states that had “shall-issue” licensing regimes, in which the state issues a
No. 1-23-0968
license whenever the applicant meets certain, objective requirements. Id. at 38 n. 9. Bruen noted
that nothing in its decision “should be interpreted to suggest the unconstitutionality” of any “shall-
issue” licensing regime. Id.
¶ 16 Following Bruen, in [CITATION], we rejected an argument that the aggravated unlawful use of a
weapon statute (720 ILCS 5/24-1.6(a) (West 2020)) was facially unconstitutional because it
criminalized possessing a firearm if the possessor was in noncompliance with the Firearm Owners
Identification Card Act (430 ILCS 65/1 et seq. (West 2020)) or Firearm Concealed Carry Act (430
ILCS 66/1 et seq. (West 2020)). [CITATION], ¶¶ 7, 19, 29-30. We found in
[CITATION] that those acts were “shall-issue” licensing programs of the type that Bruen had approved,
and the aggravated unlawful use of a weapon statute was therefore not unconstitutional for
criminalizing the possession of a firearm by a person in noncompliance with the acts. Id. ¶¶ 14-
30.
¶ 17 The State notes that those acts prohibit those who have been convicted of a felony from
obtaining a FOID card or CCL. 430 ILCS 65/8(c) (West Supp. 2021); 430 ILCS 66/25(2) (West
2022). The State maintains that we may therefore reject defendant’s facial challenge to the UUWF
statute without reaching any of the analytical steps provided by Bruen as, like those acts, the
UUWF statute prevents felons from carrying firearms. Although we recognize that the UUWF
statute provides that it does not apply if a felon “has been granted relief by the Director of the
Illinois State Police” pursuant to the Firearm Owners Identification Card Act (720 ILCS 5/24-
1.1(a) (West 2022)), we are not convinced that [CITATION] and Bruen’s discussion of licensing schemes
should control here. See [CITATION], ¶ 79 n. 11 (rejecting State’s request
to find Bruen inapplicable to similar statute based on Bruen’s endorsement of shall-issue licensing
No. 1-23-0968
regimes). In any case, the outcome of this appeal would not differ, as the UUWF statute is
constitutional under Bruen’s analytical framework.
¶ 18 Thus, we turn to the analysis provided by Bruen. Again, the first question under Bruen is
whether the second amendment’s plain text covers the conduct at issue. [CITATION] If
it does, the second question is whether the government has demonstrated that the regulation
comports with our national historical tradition of firearm regulation. Id.
¶ 19 Here, defendant claims that the conduct prohibited by the UUWF statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
protected. We disagree. Bruen did not provide that the second amendment granted an unrestricted
right to carry firearms. Rather, it explained that:
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [Citation.] Those
restrictions, for example, limited the intent for which one could carry arms, the manner by
which one carried arms, or the exceptional circumstances under which one could not carry
arms, such as before justices of the peace and other government officials.” Id. at 70.
¶ 20 In [CITATION], and [CITATION], the Supreme Court established that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] (agreeing
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also [CITATION] (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); [CITATION]
(reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
No. 1-23-0968
¶ 21 In two recent cases we rejected as-applied constitutional challenges to the UUWF statute
on that basis, concluding that Bruen did not apply to laws that attempted to regulate firearm
possession by felons. See [CITATION], ¶ 37 (noting that the justices
in the Bruen majority repeated the phrase “law-abiding” 18 times in their majority opinion and
[SEGMENT 34]
concurrences); [CITATION], ¶¶ 27-28 (agreeing with [CITATION] and
noting that Heller suggested that felons did not maintain second amendment rights). As we held
that the UUWF statute could be validly applied to the defendants in [CITATION] and [CITATION], defendant’s
facial challenge to the statute must fail. See [CITATION], ¶ 10 (a statute is only
facially unconstitutional if there are no circumstances under which it could be validly applied); see
also [CITATION], ¶¶ 18-22 (following [CITATION] to reject facial
challenge to UUWF statute).
¶ 22 Defendant requests we depart from our holdings in [CITATION] and [CITATION] and instead follow
the reasoning in [CITATION], ¶¶ 88-89, which found that under the first step
of the two-part Bruen analysis, the second amendment protects the conduct of possessing a firearm,
regardless of the possessor’s felon status. See id. at 89 (reasoning that the first step under Bruen
“does not contemplate the actor or the subject” and so “the defendant’s status as a felon is irrelevant
at this stage of the analysis.”) We decline defendant’s invitation to follow [CITATION] with respect to
the first part of the Bruen analysis. That said, even were we to depart from the holdings in [CITATION]
and [CITATION], we would still find defendant’s facial challenge unavailing under the next step of
Bruen’s analytical framework, as there is sufficient historical precedent to ban felons from
possessing firearms.
No. 1-23-0968
¶ 23 Another district of this court recently considered and rejected a defendant’s facial challenge
to the UUWF statute under the second step of the Bruen analysis. [CITATION], 2024 IL App
(3d) 230113. In [CITATION], the court reiterated that the Supreme Court in Heller and Bruen explained
“the right to bear arms has never been unlimited,” but “ ‘[t]hroughout modern Anglo-American
history,’ ” had been “ ‘subject to well-defined restrictions.’ ” Id. ¶ 27 (quoting Bruen, 597 U.S. at
38). Further, although felons were not broadly prohibited from possessing firearms until the
twentieth century, “such laws evolved from preexisting prohibitions restricting access to firearms,”
including by certain groups of people. Id. ¶¶ 28-29. In colonial America, for example, legislatures
“ ‘disarm[ed] individuals whose status indicated that they could not be trusted to obey the law.’ ”
Id. ¶¶ 30-31 (quoting [CITATION], 2023 IL App (1st) 200435, ¶ 94). In [CITATION], the court therefore
concluded that, under Bruen, there was sufficient historical precedent to make the UUWF statute
facially constitutional, which it also noted had almost no effect on any law-abiding citizen’s right
to armed self-defense. Id. ¶¶ 32-33.
¶ 24 We also find instruction in [CITATION], in which we rejected an as-applied constitutional
challenge under Bruen to the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2016)
(criminalizing possession of firearms after twice being convicted of certain felonies)). [CITATION],
2023 IL App (1st) 200435, ¶ 55. Although [CITATION] concluded (under the first step of Bruen
analysis) that the second amendment encompassed the conduct at issue, this court proceeded to
find (under the second step of the Bruen analysis) that there was ample historical support for the
legislature’s ability to prohibit possession of firearms by twice-convicted felons. Id. ¶¶ 90-105.
The historical analogues included “widespread acceptance of the legislatures’ authority to disarm
felons” during the founders’ era. Id. ¶ 96. [CITATION] recognized a “historical tradition of legislatures
No. 1-23-0968
exercising their discretion to impose status-based restrictions disarming entire categories of
persons” and that “the founders understood that felons were one such group.” (Internal quotation
marks and citations omitted.) Id. ¶ 97.
¶ 25 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
is wrongly decided.2 We decline to revisit [CITATION] here. Rather, we will follow [CITATION] and Travis, and reject defendant’s facial challenge to the UUWF statute under the second
amendment. As defendant has not shown that the UUWF statute is unconstitutional, we affirm his
conviction.
¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 27 Affirmed.
Defendant does not discuss [CITATION], which was decided on April 19, 2024, after defendant filed
his initial brief and the State filed its response brief, but before defendant filed his reply brief on May 2,
2024.
- 10 -
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
2024 IL App (3d) 230113
Opinion filed April 19, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2024
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-23-0113
v. ) Circuit No. 20-CF-348
)
DOMINIQUE D. TRAVIS, ) Honorable
) Daniel D. Rippy,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAVENPORT delivered the judgment of the court, with opinion.
Justices Hettel and Peterson concurred in the judgment and opinion.
____________________________________________________________________________
OPINION
¶1 Defendant, Dominique D. Travis, appeals his convictions for being an armed habitual
criminal (AHC) and unlawful use of a weapon by a felon (UUWF), arguing (1) the State did not
prove beyond a reasonable doubt that he possessed an actual firearm, (2) the statutes criminalizing
the possession of weapons by felons are unconstitutional both facially and as applied to defendant,
and (3) defendant’s convictions violate the one-act, one-crime doctrine. We vacate defendant’s
two UUWF convictions and otherwise affirm the trial court’s judgment.
¶2 I. BACKGROUND
¶3 Defendant was charged with AHC (720 ILCS 5/24-1.7(a)(2) (West 2020)) and two counts
of UUWF (id. § 24-1.1(a)). The case proceeded to a bench trial on April 21, 2021. At trial,
Detective Jeffrey German testified that on October 22, 2019, defendant and defendant’s cousin,
Dameonta Terry-Travis, created three videos using Dameonta’s cell phone showing both of them
holding handguns while sitting in a car with a third person. German located the videos after
performing a parole check on Dameonta on January 31, 2020. A subsequent search of Dameonta’s
residence revealed two firearms: a Springfield semiautomatic handgun and a Taurus PT111 9-
millimeter semiautomatic handgun, along with ammunition. The State introduced the Taurus 9-
millimeter into evidence.
¶4 The parties stipulated to the authenticity and admissibility of the videos, and German
testified he believed the firearms depicted in the videos were real firearms similar to the firearms
recovered from Dameonta’s residence. German testified to his familiarity with firearms, having
worked on cases involving firearms “[20], 30 times or more every year for the last 18 [years].” He
testified to his familiarity with Taurus handguns and described the specific features and markings
that led him to believe defendant was holding a Taurus PT111 9-millimeter handgun. German was
unable to identify the serial number of the firearm held by defendant in the videos, but he testified
Dameonta was holding one of the firearms recovered from his residence. The parties also stipulated
defendant had been convicted of two prior qualifying felonies.
¶5 Defendant waived his right to testify, and the trial court found him guilty on all counts. In
ruling, the court noted it was familiar with firearms and in fact had previously owned the same
model of firearm brandished by defendant in the video. The court stated, “[I]f this is a replica, I
would be shocked because of the markings on it, the mechanical aspects of the firearm.” The court
further stated its ruling was not based on whether the firearms recovered from Dameonta’s
2
residence were the same firearms depicted in the video and that the video evidence was sufficient
to determine defendant’s guilt.
¶6 Defendant filed a posttrial motion, challenging the sufficiency of the State’s evidence,
which the court denied. At defendant’s sentencing hearing, the State introduced a presentence
investigation report (PSI), which revealed defendant had twice been convicted of unlawful
possession of a weapon by a felon and aggravated battery. The trial court sentenced defendant to
three concurrent eight-year prison terms, and this appeal followed.
¶7 II. ANALYSIS
¶8 On appeal, defendant argues (1) the evidence was insufficient to convict where the State’s
evidence failed to establish defendant possessed an actual firearm, (2) the statutes under which
defendant was convicted are unconstitutional, and (3) defendant’s convictions violated the one-
act, one-crime doctrine. We address each argument in turn.
¶9 A. Sufficiency of the Evidence
¶ 10 First, defendant contends the State failed to prove beyond a reasonable doubt that he
possessed an actual firearm and not a replica or a BB gun. When reviewing the sufficiency of the
evidence, the relevant inquiry is “ ‘whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is not our function to retry defendant,
nor will we substitute our judgment for that of the trier of fact. People v. McLaurin, 2020 IL
124563, ¶ 22. “[I]n weighing evidence, the trier of fact is not required to disregard inferences
which flow normally from the evidence before it, nor need it search out all possible explanations
consistent with innocence and raise them to a level of reasonable doubt.” People v. Jackson, 232
3
Ill. 2d 246, 281 (2009). We will reverse only if “the evidence is so unreasonable, improbable, or
unsatisfactory as to create a reasonable doubt of the defendant’s guilt.” People v. Newton, 2018 IL
122958, ¶ 24.
¶ 11 To convict defendant of AHC, the State had to prove defendant (1) possessed a firearm,
and (2) was convicted of two or more qualifying offenses. See 720 ILCS 5/24-1.7(a) (West 2020).
Defendant contends only that the State failed to prove he possessed an actual firearm.
¶ 12 Section 2-7.5 of the Criminal Code of 2012 (id. § 2-7.5) has adopted the definition of
“firearm” found in section 1.1 of the Firearm Owners Identification Card Act (Act) (430 ILCS
65/1.1 (West 2020)), which states, “ ‘Firearm’ means any device, by whatever name known, which
is designed to expel a projectile or projectiles by the action of an explosion, [or] expansion of gas
***.” This provision specifically excludes, among other items, pneumatic guns, spring guns, paint
ball guns, BB guns, signaling devices, and antique firearms. Id.
¶ 13 A trier of fact may make reasonable inferences from the established facts of the case
(People v. Patterson, 2022 IL App (1st) 182542, ¶ 33) and may also rely on common sense and
general knowledge in drawing inferences from the facts (People v. Toliver, 60 Ill. App. 3d 650,
652 (1978)). The State need not introduce into evidence the physical firearm for the trier of fact to
find the defendant possessed one. People v. Jackson, 2016 IL App (1st) 141448, ¶ 15. “[C]ourts
have consistently held that eyewitness testimony that the offender possessed a firearm, combined
with circumstances under which the witness was able to view the weapon, is sufficient to allow a
reasonable inference that the weapon was actually a firearm.” Id. In the absence of eyewitness
testimony, video evidence of a defendant with a handgun has been enough to prove the defendant
possessed a firearm. People v. Collins, 2021 IL App (1st) 180768, ¶ 54.
4
¶ 14 Here, the unrebutted evidence established defendant’s possession of a firearm. The videos
introduced by the State were sufficiently clear to allow German to identify both defendant and the
specific model of the firearm possessed by defendant. German testified to his familiarity with
firearms in general and with the particular firearm possessed by defendant in the videos. This
evidence, taken with the fact that similar firearms were found in Dameonta’s residence, allowed
the circuit court to draw the reasonable inference that defendant possessed a real firearm as defined
by the Act. See McLaurin, 2020 IL 124563, ¶ 36 (a trained and experienced officer with an
unobstructed view provided sufficient evidence to establish defendant was armed with a firearm).
The circuit court’s own knowledge and experience further supported the reasonable inference that
defendant possessed an actual firearm and not a replica or BB gun. See Toliver, 60 Ill. App. 3d at
652.
¶ 15 B. Constitutionality of AHC and UUWF Statutes
¶ 16 Next, defendant raises, for the first time on appeal, a constitutional challenge to the AHC
and UUWF statutes. Defendant argues these statutes improperly burden the right to keep and bear
arms as guaranteed by the second amendment to the United States Constitution (U.S. Const.,
amend. II) and article I, section 22, of the Illinois Constitution (Ill. Const. 1970, art. I, § 22), both
facially and as applied to him.
¶ 17 At the outset, the State requests we deem defendant’s as-applied challenge forfeited
because defendant failed to raise the issue in the circuit court. In general, defendants must raise as-
applied constitutional challenges in the circuit court before they may be considered on appeal.
People v. Thompson, 2015 IL 118151, ¶ 27. Defendant concedes he did not raise the issue
previously but argues the record is sufficiently developed for us to review his claim, and upon
review of the record, we agree. See People v. Holman, 2017 IL 120655, ¶¶ 29-32, overruled on
5
other grounds by People v. Wilson, 2023 IL 127666, ¶ 42 (finding where all relevant facts and
circumstances are contained in the record, a claim may be raised and reviewed on appeal).
¶ 18 The record contains defendant’s criminal history, and the parties do not dispute its
accuracy. The State contends the record does not detail whether defendant possessed a firearm
while committing prior violent felonies nor for what purpose he possessed a firearm in the instant
case. It is unclear how this information would aid us in determining whether the felon
dispossession statutes have been constitutionally applied to defendant. The challenged statutes do
not contain exceptions for self-defense or for any other conduct. We may therefore consider
defendant’s as-applied challenge under the second amendment. See People v. Brooks, 2023 IL
App (1st) 200435, ¶¶ 59-62.
¶ 19 Statutes are presumed to be constitutional. People v. Wells, 2023 IL App (3d) 210292, ¶ 19.
“The party challenging the constitutionality of a statute bears the burden of rebutting this
presumption and clearly establishing a constitutional violation.” People v. Funches, 212 Ill. 2d
334, 339 (2004). Courts are obligated to construe statutes in a manner that upholds the statute’s
validity and constitutionality, if reasonably possible. Id. We review the constitutionality of a statute
de novo. Wells, 2023 IL App (3d) 210292, ¶ 19.
¶ 20 1. United States Constitution
¶ 21 Defendant contends the AHC and UUWF statutes are facially unconstitutional because
they amount to a “permanent, status-based revocation of the right to keep and bear arms.”
Defendant additionally contends that, even if the statutes are not facially unconstitutional, they are
unconstitutional as applied to him because the predicate offenses used to establish defendant’s
violations were nonviolent offenses and defendant was not acting violently or otherwise violating
the law at the time of the instant offenses.
6
¶ 22 a. Facial Challenge
¶ 23 The second amendment to the United States Constitution provides, “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const., amend. II. In 2022, the United States Supreme Court
clarified the standard by which laws affecting the right to bear arms under the second amendment
are to be reviewed. New York State Rifle & Pistol Ass’n, Inc., v. Bruen, 597 U.S. 1, 24 (2022).
Bruen analyzed a New York law requiring residents to demonstrate “proper cause” when seeking
a license to carry a loaded pistol and found the regulation failed to pass constitutional muster. Id.
at 38-39. In reaching its conclusion, the Court determined that means-end scrutiny was not the
appropriate lens through which to analyze such regulations (id. at 19) and announced a two-part
analysis focused exclusively on history and tradition:
“When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify
its regulation by demonstrating that it is consistent with the Nation’s historical
tradition of firearm regulation. Only then may a court conclude that the individual’s
conduct falls outside the Second Amendment’s ‘unqualified command.’ ” Id. at 24
(quoting Konigsberg v. State Bar of California, 366 U.S. 36, 50 n.10 (1961)).
¶ 24 Stated another way, to find the statute constitutional, the two-part process requires us to
determine (1) whether defendant’s conduct falls within the plain text of the second amendment
and, if so, (2) whether there is a justification for the regulation rooted in history and tradition. To
meet the second prong, we must look to “ ‘historical precedent’ from before, during, and even after
the founding [that] evinces a comparable tradition of regulation.” Id. at 27 (quoting District of
Columbia v. Heller, 554 U.S. 570, 631 (2008)). When the second amendment’s historically fixed
7
meaning is applied to new circumstances, courts must conduct a historical inquiry that involves
reasoning by analogy. Id. at 28. Determining whether historical regulations are properly analogous
to a modern firearm regulation requires courts to decide whether the two regulations are “relevantly
similar.” Id. at 29. Relevant similarities include, among other things, “how and why the regulations
burden a law-abiding citizen’s right to armed self-defense.” Id. The Court emphasized that
“ ‘individual self-defense is “the central component” of the Second Amendment right.’ ”
(Emphasis in original.) Id. (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010),
quoting Heller, 554 U.S. at 599).
¶ 25 Applying Bruen’s framework, we must first determine whether the second amendment’s
plain text covers defendant’s conduct. Id. at 24. The second amendment states “the right of the
people to keep and bear Arms[ ] shall not be infringed.” U.S. Const., amend. II. The State urges
us to find defendant is not a member of “the people” to whom the second amendment applies
because of his status as a felon. However, the Supreme Court in Heller defined “the people” as
“all Americans,” and we see no reason to depart from that definition. Heller, 554 U.S. at 581. The
“plain text” of the second amendment contains no caveats exempting felons, and we decline to
read additional language into this straightforward first step. See United States v. Collette, 630 F.
Supp. 3d 841, 844 (W.D. Tex. 2022) (“***Bruen’s first step asks a strictly textual question with
only one answer: the Second Amendment’s plain text covers possession of a firearm.”).
¶ 26 In reaching this conclusion, we note different panels of this court have disagreed about
whether felons fall within the amendment’s scope. For instance, in People v. Baker, 2023 IL App
(1st) 220328, ¶ 37, one panel of the First District concluded non-law-abiding citizens are not part
of “the people” to whom the second amendment applies. But in Brooks, 2023 IL App (1st) 200435,
¶ 89, a different panel found as we have that the second amendment’s plain language does not
8
exclude felons. While we acknowledge both courts ultimately concluded Bruen does not prohibit
the disarmament of felons, we adopt the reasoning set forth in Brooks.
¶ 27 Accordingly, we turn to Bruen’s second step. Here, we must consider whether the AHC
and UUWF statutes are rooted in this nation’s history and tradition of firearms regulation. We
begin by noting that the right to bear arms has never been unlimited. As the Supreme Court pointed
out in Heller:
“From Blackstone through the 19th-century cases, commentators and courts
routinely explained that the right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose. [Citations.] For
example, the majority of the19th-century courts to consider the question held that
prohibitions on carrying concealed weapons were lawful under the Second
Amendment or state analogues.” Heller, 554 U.S. at 626.
Indeed, “[t]hroughout modern Anglo-American history, the right to keep and bear arms in public
has traditionally been subject to well-defined restrictions governing the intent for which one could
carry arms, the manner of carry, or the exceptional circumstances under which one could not carry
arms.” Bruen, 597 U.S. at 38.
¶ 28 The Supreme Court has observed that the prohibition on felons possessing firearms is both
“longstanding” and consistent with historical tradition. Heller, 554 U.S. at 626-27. Yet, as
defendant points out, felon dispossession statutes are a product of the twentieth century—felons
were not broadly prohibited from possessing firearms federally until 1961. Collette, 630 F. Supp.
3d at 845. In Illinois, the first criminal statute temporarily prohibiting felons from possessing
firearms was passed in 1967. Brooks, 2023 IL App (1st) 200435, ¶ 103.
9
¶ 29 However, such laws evolved from preexisting prohibitions restricting access to firearms.
The most directly relevant federal precursor to modern statutes disarming felons was the Federal
Firearms Act of 1938, which was designed to address an unprecedented societal concern: an
“ ‘increase in organized crime and gangster violence.’ ” United States v. Banuelos, 640 F. Supp.
3d 716, 723 (W.D. Tex. 2022) (quoting Conrad Kahn, Challenging the Federal Prohibition on
Gun Possession by Nonviolent Felons, 55 S. Tex. L. Rev. 113, 115-16 (2013)). More broadly,
“[h]istory shows that the right to keep and bear arms was subject to restrictions that included
prohibitions on possession by certain groups of people.” United States v. Jackson, 69 F.4th 495,
502 (8th Cir. 2023).
¶ 30 The government has historically promoted public safety by protecting society from persons
it deems to be dangerous. Gun safety regulations were “commonplace in the colonies, and around
the time of the founding, a variety of gun safety regulations were on the books” including “laws
disarming certain groups and restricting sales to certain groups.” National Rifle Ass’n of America,
Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 200 (5th Cir. 2012),
abrogated on other grounds by Bruen, 597 U.S. at 19. So-called “going armed” laws prohibited
persons from “bearing arms in a way that spreads ‘fear’ or ‘terror’ among the people.” Bruen, 597
U.S. at 50. Other ratification-era laws disarmed people feared to be disloyal to the government.
Kanter v. Barr, 919 F.3d 437, 457-58 (7th Cir. 2019) (Barrett, J., dissenting), abrogated on other
grounds by Bruen, 597 U.S. at 19. Such individuals included British loyalists whom authorities
believed could not be trusted to remain loyal to the newly founded American government. See
United States v. Washington, No. 23-cr-00274, 2023 WL 8258654, at *6 (N.D. Ill. Nov. 29, 2023).
¶ 31 The concept of disarming criminals dates at least to Pennsylvania’s ratifying convention,
at which it was proposed that the right to bear arms be guaranteed “ ‘unless for crimes committed,
10
or real danger of public injury from individuals.’ ” (Emphasis added.) Kanter, 919 F.3d at 456
(Barrett, J., dissenting) (quoting 2 Bernard Schwartz, The Bill of Rights: A Documentary History
675 (1971)). Other colonies adopted the concept of attainder, a status applied to the “disaffected”
and “delinquents,” which resulted in the forfeiture of property and loss of civil rights, including
disarmament. United States v. Coombes, 629 F. Supp. 3d 1149, 1157 (N.D. Okla. 2022). “In
colonial America, legislatures continued to disarm individuals whose status indicated that they
could not be trusted to obey the law.” Brooks, 2023 IL App (1st) 200435, ¶ 94.
¶ 32 Reasoning by analogy, as Bruen instructs, we find these regulations provide a “historical
analogue” to the AHC and UUWF statutes. (Emphasis omitted.) Bruen, 597 U.S. at 30. At this
second step of Bruen’s analysis, it is also highly relevant that the proposed legislation has almost
no effect on a “ ‘law-abiding, responsible’ ” citizen’s right to armed self-defense, which the second
amendment “ ‘elevates above all other interests.’ ” Id. at 26 (quoting Heller, 554 U.S. at 635);
Banuelos, 640 F. Supp. 3d at 722-23 (observing the question of how a defendant’s “prior felony
might impact his Second Amendment right to possess a firearm is more properly addressed under
step two’s historical tradition analysis”).
¶ 33 In sum, we conclude there is a history and tradition dating back to the founding era of
identifying dangerous individuals and disarming them. See Jackson, 69 F.4th at 505. Our holding
is consistent with Bruen’s discussion of state-administered firearms licensing regimes, which
“often require applicants to undergo a background check or pass a firearms safety course, [and]
are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding,
responsible citizens.’ ” Bruen, 597 U.S. at 38 n.9 (quoting Heller, 554 U.S. at 635). The AHC and
UUWF statutes are consistent with this nation’s history of preventing potentially dangerous
individuals from exercising the right to bear arms, and their effects on law-abiding citizens’ right
11
to self-defense are minimal. Id. at 29; see People v. Mobley, 2023 IL App (1st) 221264, ¶¶ 29-30
(observing individuals convicted of multiple felonies, including violent felonies, are
incontrovertibly not “law-abiding citizens”). Therefore, the statutes at issue, here, are facially
constitutional.
¶ 34 b. As-Applied Challenge
¶ 35 The distinction between an as-applied challenge and a facial challenge “goes to the breadth
of the remedy employed by the Court.” Citizens United v. Federal Election Comm’n, 558 U.S.
310, 331 (2010). An as-applied challenge requires a showing that the statute violates the
constitution as it applies to defendant’s particular facts and circumstances, whereas a facial
challenge requires a showing that the statute is unconstitutional under any set of facts. Thompson,
2015 IL 118151, ¶ 36. Defendant argues (1) his actions in possessing a firearm were presumptively
lawful because he was not acting violently at the time of his offense and (2) the qualifying offenses
used to convict defendant of AHC were also “non-violent, possessory offenses.”
¶ 36 Defendant presents no coherent argument as to why his nonviolence at the time of the
offense should affect whether the State can disarm him for being a felon, nor can we find any.
According to the AHC statute and the UUWF statute, the relevant unlawful conduct consists of
(1) having prior felony convictions and (2) possessing a firearm. See 720 ILCS 5/24-1.1(a), 24-
1.7(a) (West 2020). Neither statute distinguishes between violent and nonviolent conduct at the
time of the offense. Moreover, the State is free under the UUWF statute to use any of defendant’s
prior felonies to sustain defendant’s convictions, and defendant’s PSI reveals he has been
convicted of at least two violent felonies, namely two separate aggravated batteries. Defendant is,
therefore, precisely the type of person the government has historically and traditionally sought to
disarm. See Kanter, 919 F.3d at 467 (Barrett, J., dissenting).
12
¶ 37 Even if defendant had been convicted of only nonviolent felonies, we would reject
defendant’s invitation to second-guess the legislature’s determination of which crimes merit felony
status and, consequently, disarmament. See Atkinson v. Garland, 70 F.4th 1018, 1026-27 (7th Cir.
2023) (Wood, J., dissenting). Under the AHC and UUWF statutes, both of which are facially
constitutional, defendant is prohibited from possessing a firearm due to his status as a felon,
irrespective of the violent or nonviolent nature of his convictions. We decline to invade the
province of the legislature to determine which convictions warrant a loss of rights. As Justice
Wood observed,
“The Judiciary cannot be in the position of looking at prior offenses identified by
Congress and second-guessing Congress’s decisions both with respect to
criminalization and to sentencing exposure. *** Such a system would impose
impossible burdens on courts and prosecutors and would lead to an arbitrary
patchwork of decisions—as far from the rule of law as one could imagine.” Id.
Thus, we find that the statutes are also constitutional as applied to defendant.
¶ 38 2. Illinois Constitution
¶ 39 Defendant next claims the AHC and UUWF statutes violate article I, section 22, of the
Illinois Constitution facially and as applied to him. Defendant argues the Illinois Constitution
provides greater protection than the second amendment.
¶ 40 Article I, section 22, provides: “Subject only to the police power, the right of the individual
citizen to keep and bear arms shall not be infringed.” Ill. Const. 1970, art. I, § 22. There are two
important differences between this portion of the Illinois Constitution and the federal constitution.
First, it replaces the prefatory language concerning the necessity of a well-regulated militia with
the words “ ‘[s]ubject only to the police power.’ ” Kalodimos v. Village of Morton Grove, 103 Ill.
13
2d 483, 491 (1984) (quoting Ill. Const. 1970, art. I, § 22). Second, it replaces “the people” with
“ ‘the individual citizen.’ ” Id. (quoting Ill. Const. 1970, art. § 22). In Kalodimos, our supreme
court held the inclusion of the phrase “the individual citizen” was intended to “broaden the scope
of the right to arms from a collective one applicable only to weapons traditionally used by a
regulated militia [citation] to an individual right covering a wider variety of arms.” Id.
¶ 41 In contrast, the inclusion of the words “ ‘[s]ubject only to the police power’ ” was intended
“as a limitation on the liberty the provision affords.” Id. The police power was intended to provide
an “ ‘extraordinary degree of control’ ” over the possession and use of arms due to the
“ ‘extraordinary threat to the safety and good order of society’ ” posed by such weapons. Id. at
491-92 (quoting 6 Record of Proceedings, Sixth Illinois Constitutional Convention 88 (report of
the committee on the bill of rights)). The court found “that the police power comprehends laws
‘restraining or prohibiting anything harmful to the welfare of the people.’ ” Id. at 496 (quoting
People v. Warren, 11 Ill. 2d 420, 425 (1957)).
¶ 42 As discussed above, we reject the State’s request to hold that defendant is not a member of
“the people” for the purpose of applying the second amendment. Supra ¶ 26. We similarly reject
the State’s contention that article I, section 22, does not apply to defendant. However, having found
felons are not excluded from either constitutional clause, we cannot ignore our supreme court’s
observation that the inclusion of the prefatory clause “[s]ubject only to the police power” was
intended to grant the government an “extraordinary degree of control” over the use of firearms.
(Internal quotation marks omitted.) Kalodimos, 103 Ill. 2d at 491-92. While it is well established
that a state may impose greater protections under its state constitution and may not reduce its
protections below the minimum required by the federal constitution (see, e.g., Oregon v. Hass, 420
14
U.S. 714, 719 (1975)), defendant presents no compelling argument that Illinois has elected to
impose greater protections, nor does our independent review find this to be the case.
¶ 43 In support of his as-applied challenge, defendant contends the framers of the Illinois
Constitution were more concerned with violence than with felon status. Even if we accept
defendant’s argument, it fails because, as noted above, he has been convicted of violent acts. Supra
¶ 36. We find the AHC and UUWF statutes are a proper exercise of the state’s police power, which
allows the state to exert, through legislation, control over the dangers posed by firearms and the
people who might use them to do harm. See People v. Boyce, 2023 IL App (4th) 221113-U, ¶ 18.
Accordingly, defendant has failed to demonstrate the challenged statutes violate the Illinois
Constitution either facially or as applied to him.
¶ 44 C. One-Act, One-Crime Violation
¶ 45 Finally, defendant asserts his UUWF convictions violate the one-act, one-crime doctrine.
The State notes defendant forfeited the error but nevertheless concedes plain error. See People v.
Coats, 2018 IL 121926, ¶ 10 (one-act, one-crime violations are reviewable under the second-prong
of the plain-error doctrine). We accept the State’s concession.
¶ 46 The one-act, one-crime doctrine prohibits multiple convictions based on a single physical
act or acts. People v. West, 2017 IL App (1st) 143632, ¶ 24. When two or more convictions are
based on a single act, the sentence imposed for the less serious offense should be vacated. Id. To
determine which offense is more serious, courts generally compare the relative punishments
prescribed by the legislature. People v. Artis, 232 Ill. 2d 156, 161 (2009).
¶ 47 Here, defendant’s act of possessing a firearm resulted in three convictions—AHC and two
counts of UUWF. As the State concedes, the three convictions stem from a single physical act,
defendant’s possessing a firearm. AHC is a Class X felony (720 ILCS 5/24-1.7(b) (West 2020)),
15
while the two convictions for UUWF are Class 2 felonies (id. § 24-1.1(e)). Defendant’s conviction
for AHC is therefore the most serious offense. Accordingly, we vacate defendant’s two UUWF
convictions.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we vacate defendant’s two UUWF convictions and otherwise affirm
the judgment of the circuit court of Will County.
¶ 50 Affirmed in part and vacated in part.
16
People v. Travis, 2024 IL App (3d) 230113
Decision Under Review: Appeal from the Circuit Court of Will County, No. 20-CF-348;
the Hon. Daniel D. Rippy, Judge, presiding.
Attorneys James E. Chadd, Santiago A. Durango, and Mark D. Fisher, of
for State Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:
Attorneys James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
for Thomas D. Arado, and Nicholas A. Atwood, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
17
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
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Law
9882593
[SEGMENT 1]
[Cite as [CITATION].]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2023CA00108
ERROL G. FRANK, III
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Case No. 2023CR0721
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 15, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE EDWARD R. La RUE
Prosecuting Attorney
Lakeside Avenue, Suite 210
Stark County, Ohio Cleveland, Ohio 44113
VICKI L. DeSANTIS
Assistant Prosecuting Attorney
Appellate Division
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413 Stark County, Case No. 2023CA00108
Hoffman, J.
{¶1} Defendant-appellant Errol G. Frank, III, appeals his convictions and
sentence entered by the Stark County Court of Common Pleas on two counts of murder,
one count of felonious assault, one count of tampering with evidence, and three three-
year firearm specifications, following a jury trial. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On May 18, 2023, the Stark County Grand Jury indicted Appellant on one
count of murder, in violation of R.C. 2903.02(A), an unspecified felony, with an attendant
three-year firearm specification; one count of murder, in violation of R.C. 2903.03(B), an
unspecified felony, with an attendant three-year firearm specification; one count of
felonious assault, in violation of R.C. 2903.11(A)(2), a felony of the second degree; and
one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the
third degree. Appellant appeared for arraignment on May 19, 2023, and entered a plea
of not guilty to the Indictment.
{¶3} On May 24, 2023, Appellant executed a limited waiver of his right to a
speedy trial. Trial was scheduled for July 25, 2023. Appellant filed a motion for pre-trial
release, which the trial court denied. Prior to trial, Appellant filed a notice of self-defense.
{¶4} The matter proceeded to jury trial on July 25, 2023. The following evidence
was presented at trial:
{¶5} At approximately 3:00 p.m. on March 22, 2023, Patrolman Trent Abel with
the City of Canton Police Department and his partner, Officer Stern, were dispatched to
the area of 851 Rowland Avenue, NE, in response to a shooting. The officers arrived at
the scene and encountered a group of people standing at the corner of The O’Jays
Parkway, NE, and Peel Place, NE. As Patrolman Abel exited his cruiser, he observed Stark County, Case No. 2023CA00108
the victim laying on his back, facing west. Patrolman Abel noticed the victim, whose head
and face were covered in blood, had “a bullet wound his forehead area.” Trial Transcript,
Vol. I, p. 129.
{¶6} Patrolman Abel wrapped the victim’s head with a compression bandage and
applied pressure to the wound. As Patrolman Abel checked the victim for other injuries,
he observed a bullet hole, which appeared to be an exit wound, in the victim’s abdomen
area. Medics arrived and transported the victim to the hospital.
{¶7} Patrolman Abel searched the area for evidence and located some of the
victim’s personal property, a bag containing an unknown white substance, and one spent
shell casing. Patrolman Abel maintained security of the area while detectives and the ID
Bureau processed the scene.
{¶8} Paul George, a retired United Methodist pastor, testified he was a volunteer
at his church, and on March 22, 2023, was driving a church van on the southwest side of
Canton, picking up youth to take them to church. George, his wife, and four youths were
traveling just north of 9th Street, when they heard what sounded like a gunshot. George
could not ascertain the direction from which the sound had come.
{¶9} As George tried to determine what was happening, he observed two male
individuals sprinting out of a grassy knoll. George recalled, “At first we thought somebody
just fired a shot in the air and everyone’s clearing, but as they went across the street,
when they hit this alley, the first man fell and you can see the other one was chasing him.”
Tr. at p. 143. The first male fell face first, then turned around with his hands up. George
stated the second male had something in his hand. He heard two more gunshots and the
first male “collapsed down on his face.” Tr. at p. 145. George called 9-1-1. After ensuring Stark County, Case No. 2023CA00108
the male with the gun had cleared the area, George went to check on the victim. Another
man had reached the victim first and turned the victim onto his back. George noticed the
victim had a gunshot wound “[r]ight in the middle of the forehead.” Tr. at p. 148.
{¶10} George indicated the shooter was wearing a hat or had dreadlocks, was
approximately 6’0” or 6’1” tall, and held the gun in his right hand. He described the victim
as African-American, a little heavier built, and not wearing shoes. George estimated the
shooter was eight (8) feet away from the victim.
{¶11} Detective Daniel Szaniszlo with the City of Canton Police Department
testified, on March 22, 2023, at approximately 5:00 p.m., he received a call from
Lieutenant Talkington, asking him to assist in the homicide investigation. Upon his arrival
at the scene, officers briefed Detective Szaniszlo. He learned the victim was Melvin
Stevenson, he had suffered several gunshot wounds, and had succumbed to those
injuries. Detective Szaniszlo also learned the suspect was a black male with what was
described as dreadlocks. After running Stevenson through police databases, Detective
Szaniszlo discovered Stevenson had been married to a Tricia Stevenson, who had
changed her name to Tricia Frank. Through a Facebook search, the detective discovered
Tricia Frank was newly married to an individual identifying himself as “Young Veteran.”
A picture in Young Veteran’s Facebook profile matched the description of the suspect.
Young Veteran was subsequently identified as Appellant.
{¶12} With this information, detectives obtained video footage from city street
cameras and the video cameras they were able to locate. Detectives learned Appellant
drove a silver Mazda van. Video footage from the city street cameras revealed a silver
Mazda van in the area of the shooting. Detectives ran the license plate of the silver Mazda Stark County, Case No. 2023CA00108
van and discovered the vehicle was registered to Appellant. The Critical Response Team
began surveillance in the area of Appellant’s residence. When Appellant and Tricia Frank
left their home, officers effected a stop of their vehicle. Appellant and Tricia Frank were
transported to police headquarters. Detectives Szaniszlo and Romanin executed a search
warrant on Appellant’s residence.
{¶13} Vincent Romanin, a detective with the City of Canton Police Department,
testified he responded to the scene after hearing the radio call dispatching patrol units to
a shooting incident. Upon his arrival, paramedics were placing the victim onto a gurney
and transporting him to the hospital. Detective Romanin conferred with patrol officers,
who identified two witnesses. The detective briefly interviewed the witnesses at the
scene, and spoke with Paul George a second time at the police department.
{¶14} Detective Romanin explained how he and other investigators identified
Appellant as the suspect. Investigators learned Appellant drove a silver Mazda MPV, a
van style vehicle. Upon reviewing video footage from the area near the time of the
incident, a Mazda MPV is observed on camera leaving the area immediately after the
incident. Detective Romanin was able to confirm the Mazda MPV on the video was
registered to Appellant. He and other investigators consulted with the Coordinated
Response Team (“the CRT”), which then attempted to locate the vehicle. The CRT was
unable to locate the Mazda MPV, but, upon checking an address associated with
Appellant, observed a vehicle which was registered to Tricia Frank. The CRT conducted
surveillance on the residence. After two individuals entered the vehicle registered to
Tricia Frank and drove away from the residence, a member of CRT initiated a traffic stop
of the vehicle. The occupants of the vehicle were Appellant and Tricia Frank. Appellant Stark County, Case No. 2023CA00108
[SEGMENT 2]
and Tricia Frank were transported to Canton Police Department, where they were
interviewed by Detective Romanin.
{¶15} Detective Romanin summarized his interview with Appellant, noting
Appellant was not forthcoming and untruthful about what had occurred. Appellant told
Detective Romanin he had received a phone call from Tricia Frank, during which Tricia
Frank told Appellant she had observed Stevenson. Tricia Frank gave Appellant
Stevenson’s specific location and a description of the clothes he was wearing. Appellant
then went in search of Stevenson. Appellant initially observed Stevenson walking on 12th
Street, near Nimisila Park. Appellant drove around the area until he was able to intercept
Stevenson. Appellant explained a confrontation ensued during which he discharged a
firearm into Stevenson. Appellant left the area, returned home, and told Tricia Frank what
had occurred. Detective Romanin stated Stevenson was traveling a couple of miles away
from Appellant’s neighborhood, in the opposite direction. During the interview, Appellant
told Detective Romanin he was scared for his wife and daughter, but not for himself.
{¶16} While the video of Detective Romanin’s interview with Appellant was played
for the jury, Detective Romanin explained the inconsistencies in Appellant’s responses,
adding Appellant’s statements did not make sense or were not supported by the
information the police had gathered. Video footage of Stevenson walking with his arms
swinging by his sides in the area prior to the shooting was played for the jury. Contrary to
statements made by Appellant during the interview, Stevenson was not carrying a bag
and did not have his hands in his pockets.
{¶17} Detective Romanin testified he collected cell phones belonging to Appellant
and Tricia Frank and reviewed the contents of the phones for communications, call logs, Stark County, Case No. 2023CA00108
text messages, and FaceChat messages. Detective Romanin indicated there were
several communications between Appellant and Tricia Frank on March 22, 2023, to wit:
a phone call placed by Tricia Frank to Appellant at 2:46 p.m., which lasted 15 minutes; a
cancelled call at 3:00 p.m.; and a FaceTime video call at 3:01 p.m., which lasted 7
minutes. Neither Appellant’s phone nor Tricia Frank’s phone revealed any
communications from Stevenson.
{¶18} In addition to Paul George, Detective Romanin spoke with another witness,
Ivan Toe, who lived in the immediate vicinity of the shooting. Toe heard a commotion
outside, then gunshots. When Toe went outside to find out what was happening, he
observed the suspect running southbound away from the area.
{¶19} City of Canton Police Officer Randy Weirich, an evidence technician in the
crime scene unit, testified he was dispatched to Appellant’s residence to photograph and
collect evidence. In the garage, Officer Weirich collected a Taurus pistol, model 709, with
one round in the chamber and another round in the magazine, which was located in a
clear plastic bag in a rain gutter, and a Blink camera. Officer Wierich photographed the
silver Mazda van. Inside the home, Officer Weirich collected the following evidence: a
Ring door camera, a Ring doorbell, two black t-shirts, a pair of black pants, a pair of black
jeans,1 a round of 9 mm ammunition, a Phoenix Raven .25 automatic pistol, a small plastic
bag containing a substance subsequently identified as marijuana, and Appellant and
Tricia Frank’s driver’s licenses. Officer Weirich responded to the hospital and collected
the bullet removed from Stevenson’s body. During his testimony, Officer Weirich
identified State’s Exhibits 1, 1A, 1B, 3, 7-11, 13, and 15A-F, which included the physical
1 All of the clothing was found in a washing machine. Stark County, Case No. 2023CA00108
evidence recovered during the search of Appellant’s residence as well as the photographs
he took during the search.
{¶20} Abigail Ilievski, a firearms and fingerprint analyst with the Canton/Stark
County Crime Lab, performed ballistics testing on the 9 mm Taurus firearm recovered
during the search of Appellant’s residence. Ilievski explained she fired the Taurus then
compared the test-fire bullet to the spent cartridge found at the scene. Ilievski opined the
spent cartridge found at the scene was fired from the Taurus firearm.
{¶21} Larry Mackey, also a firearms and fingerprint analysist with the
Canton/Stark County Crime Lab, examined the black hooded sweatshirt Stevenson was
wearing at the time of his murder. Through testing for gunpowder residue, gases, and
other particles, Mackey estimated the Taurus was fired from a distance of 5 to 6 feet away
from Stevenson. Mackey was able to rule out a near contact shot with the muzzle as the
fabric was not burned. Mackey explained how he determines whether a defect in fabric
caused by a bullet is an entrance defect or an exit defect. Mackey testified the defect on
the front of the sweatshirt was an exit defect, while the defect on the back of the sweatshirt
was an entrance defect.
{¶22} Magdalena Davis testified she was at home at approximately 3 p.m. on
March 22, 2023. Davis recalled she was in her bedroom, smoking a cigarette out an open
window and talking on the phone to her oldest daughter, when she heard two or three
gunshots. Davis immediately ducked down. When the gunshots stopped, Davis stood
and looked out the window. She observed “some bigger guy running like in slow motion
and towards * * * Peel Street * * * then he falls over” on his back. Transcript of
Proceedings, Vol. II, p. 350. Davis watched as “the other guy walked around him on his Stark County, Case No. 2023CA00108
left side and stood in front of him and shot him a couple more times.” [CITATION] The shooter left
the area. Davis screamed to her other daughter, who was at home with her, to call 9-1-
1. Police arrived shortly thereafter. Davis went to the police station and gave a statement.
Davis stated the shooter and the victim were both black men.
{¶23} Cuyahoga County Medical Examiner Dr. Alison Krywanczyk testified she
personally performed the autopsy on Stevenson’s body. Dr. Krywanczyk noted the
Cuyahoga County Medical Examiner’s Office has a contract with Stark County to conduct
autopsies on behalf of Stark County. During her external examination, Dr. Krywanczyk
observed two types of injuries on Stevenson, to wit: gunshot wounds and blunt force
injuries. Stevenson “had several blunt force injuries on his face; so over his forehead,
over his nose which were all very consistent with what we would call collapse-type injury,”
which occurs when “someone falls either because they’re unconscious or becoming
unconscious” and do not have the ability to catch themselves. Tr. Vol. II, p. 367.
{¶24} The first gunshot wound Dr. Krywanczyk examined entered Stevenson’s left
frontal scalp and exited his upper lip. This gunshot wound had a downward trajectory,
traveling through the skull, the left frontal lobe of the brain, passing through the base of
the skull behind the left eye, then the maxilla of the mouth, and finally exiting the upper
lip. Dr. Krywanczyk stated this gunshot wound, “in and of itself,” could have been fatal.
[CITATION]
{¶25} The second gunshot wound Dr. Krywanczyk examined entered the left side
of Stevenson’s back and exited the right side of his abdomen. Dr. Krywanczyk testified
her examination of the body in this area was limited due to the surgeries performed in an
attempt to save Stevenson’s life. Stevenson’s spleen and half of his pancreas had been Stark County, Case No. 2023CA00108
removed; therefore, Dr. Krywanczyk could not assess the injuries to those organs. The
medical examiner was able to determine this gunshot wound passed through the
diaphragm, the liver, the stomach, and part of the intestine before exiting. The gunshot
wound had a flat trajectory. Dr. Krywanczyk stated the victim could have walked or run
after receiving this gunshot wound.
{¶26} Dr. Krywanczyk determined the cause of Stevenson’s death was gunshot
wounds. She forwarded her report to the Stark County Coroner, who ruled the manner
of death a homicide.
{¶27} Upon conclusion of Dr. Krywanczyk’s testimony, the State rested its case.
{¶28} Appellant testified on his own behalf. Appellant explained Stevenson was
his wife Tricia Frank’s ex-husband. Appellant and his wife had been married for almost
a year, and Tricia Frank had been divorced from Stevenson for approximately the same
amount of time. Appellant recalled Stevenson made two calls to Tricia Frank. Stevenson
made the first call from prison. During the call, Stevenson repeated Appellant and Tricia
Frank’s address over and over. A few months later, Stevenson called from a private
number, demanding, “Come out you bitch ass n-----, I’m outside your house.” Tr. Vol. II,
p. 386. Appellant and Tricia Frank sought and received a protection order in July, 2022,
[SEGMENT 3]
following Stevenson’s first call. Appellant acknowledged Stevenson sent two non-
threatening texts to Tricia Frank, asking for his CashApp information.
{¶29} On the day of the shooting, Appellant received a phone call from Tricia
Frank, who was hysterical and crying. Tricia Frank told Appellant she saw Stevenson
walking on 12th Street. Appellant testified he was driving home at the time. He stopped
at his residence and retrieved his gun. Appellant returned to the area where Tricia Frank Stark County, Case No. 2023CA00108
stated she saw Stevenson. While he was driving, Appellant observed an individual
crossing the street near Nimisilla Park. Appellant stated he was not sure the individual
was Stevenson because Tricia Frank’s description did not match. Appellant turned
around “with the pure intentions to actually see if this was Melvin Stevenson, and if it was,
* * * [he] just wanted to have a man-to-man conversation to see if [they] could come up
with some type of solution.” [CITATION] Appellant exited his vehicle and called
Stevenson’s name. The individual turned around, which confirmed to Appellant it was, in
fact, Stevenson. Appellant returned to his vehicle, drove to Lippert Street, parked, and
exited the vehicle for a second time.
{¶30} Appellant crossed the street and approached Stevenson, who started
talking about an apartment building. Appellant noted he was wearing a Covid mask at the
time, but the mask fell off, and Stevenson’s demeanor changed once he recognized
Appellant. Appellant testified Stevenson “lunged at [him] and attacked [him].” [CITATION]
Appellant stated, during the attack, he heard two loud pops. Appellant admitted
he did not see a gun in Stevenson’s hand. As Appellant reached for his gun, Stevenson
started to run. Appellant gave chase. According to Appellant, during the chase,
Stevenson put his arm back and Appellant heard another loud pop. Appellant then shot
at Stevenson. Appellant alleged Stevenson came at him with his arms out. Appellant
then fired another shot. After Appellant heard Stevenson hit the ground, he retrieved his
gun, ran to his vehicle, and drove home.
{¶31} Appellant indicated he did not intend to kill Stevenson, but only wanted to
talk to him “to see if [they could] come up with a solution * * * and [Appellant] and [his]
wife [didn’t] have to continue to live in fear.” [CITATION] Appellant denied tracking Stark County, Case No. 2023CA00108
down Stevenson, but acknowledged the City camera video footage shown during the trial
depicts him driving his vehicle, turning onto different streets, following Stevenson.
Appellant admitted he lied to Detective Romanin when he told the detective he was
walking to a friend’s house when he encountered Stevenson. Appellant further
acknowledged he lied to Detective Romanin about throwing away the gun. Appellant did
not tell Detective Romanin Stevenson had a gun and had shot at him.
{¶32} Appellant did not call any other witnesses. Defense counsel rested its case.
{¶33} After hearing all the evidence and deliberating, the jury found Appellant
guilty of all of the counts contained in the Indictment. At sentencing, the trial court merged
Counts Two (murder, in violations of R.C. 2903.02(B)) and Three (felonious assault) for
sentencing purposes and sentenced Appellant to an aggregate prison term of twenty (20)
years to life.
{¶34} It is from his convictions and sentence Appellant appeals, raising the
following assignments of error:
I. THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY
TO DISREGARD ITS INSTRUCTION ON WITNESS CREDIBILITY
BECAUSE THE APPELLANT HAD EXERCISED HIS CONSTITUTIONAL
RIGHT TO TESTIFY AT TRIAL. (TR. P. 473).
II. BECAUSE APPELLANT’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE, APPELLANT’S CONVICTIONS
MUST BE REVERSED AND REMANDED. (TR. P. PASSIM). Stark County, Case No. 2023CA00108
III. BECAUSE THE PROSECUTOR COMMITTED MISCONDUCT
BY IMPROPERLY ARGUING THAT APPELLANT WAS ABLE TO CRAFT
HIS TESTIMONY TO THE EVIDENCE PRESENTED TO THE JURY BY
ATTENDING TRIAL, APPELLANT’S CONVICTIONS SHOULD BE
REVERSED. (TR. P. 501-503).
IV. BECAUSE DEFENSE COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO THE TRIAL
COURT ERRONEOUSLY INSTRUCTING THE JURY TO DISREGARD A
CRITICAL JURY INSTRUCTION ON WITNESS CREDIBILITY,
APPELLANT’S CONVICTIONS SHOULD BE REVERSED. (TR. P. 473).
I, IV
{¶35} Because Appellant’s first and fourth assignments of error require similar
analysis, we elect to address said assignments of error together. In his first assignment
of error, Appellant contends the trial court’s erroneous jury instruction was structural error.
In his fourth assignment of error, Appellant claims his trial counsel was ineffective for
failing to object to the trial court’s erroneous jury instruction.
{¶36} Pertinent to our analysis and disposition of Appellant’s first and fourth
assignments of error is the following portion of the trial court’s charge to the jury:
THE COURT: You are the sole judges of the facts, the credibility of
the witnesses and the weight of the evidence. Stark County, Case No. 2023CA00108
To weigh the evidence, you must consider the credibility of the
witnesses. You will apply the tests of truthfulness which you do in your daily
lives. It includes the appearance of each witness on the stand, their manner
of testifying, the reasonableness of the testimony, the opportunity they had
to see, hear and know the things they’re testifying to, accuracy of memory,
frankness or lack of it, intelligence, interest and bias, if any; together with all
these facts and circumstances surrounding the testimony. Applying these
tests, you will assign to the testimony of each witness such weight as you
deem proper.
You are not required to believe the testimony of any witness simply
because they were under oath. You may believe or disbelieve all or part of
the testimony of any witness. It is your province to determine what
testimony is worthy of belief and what is not worthy of belief.
You should not decide any issue of fact merely on the basis of the
number of witnesses who testify on each side of the issue. Rather, the final
test in judging evidence should be the force and weight of the evidence
regardless of the number of witnesses on each side of the issue.
The testimony of one witness believed by you is sufficient to prove
any fact. Also, discrepancies in a witness’s testimony or between his
testimony and that of others, if there are any, does not necessarily mean
you should disbelieve the witness, as people commonly forget facts and
recollect them erroneously after the passage of time. Stark County, Case No. 2023CA00108
You are certainly all aware of the fact that two people who are
witnesses to an incident often see or hear them differently. In considering
a discrepancy in a witness’ testimony, you should consider whether the
discrepancy concerns an important fact or a trivial one.
If you conclude the witness lied in their testimony as to the material
fact, you may distrust all of their testimony and you would then have the
right to reject all of their testimony unless, from all the evidence, you believe
that the probability of truth favors their testimony in other particulars.
The last paragraph does not apply because [Appellant] did take the
witness stand.
Transcript of Proceedings, Vol. II, pp. 470 – 473. (Emphasis added.)
Structural Error Analysis
{¶37} Appellant asserts “the Trial Court committed structural error when it
erroneously instructed the jury to disregard a proper jury instruction on witness credibility,
‘because the defendant did take the witness stand (tr. p. 473).’ ” Brief of Appellant at p.
8. Appellant explains, “This case was based solely on witness credibility. The Defendant
conceded that he caused the death of the deceased; there were no forensic issues that
were critical to the jury’s decision making, and thus, witness credibility was all important
to case at bar.” Id. Appellant adds the trial court did not give any other instruction on
witness credibility.
{¶38} Structural errors are “constitutional defects that defy analysis by ‘harmless
error’ standards because they affect[ ] the framework within which the trial proceeds, Stark County, Case No. 2023CA00108
rather than simply [being] an error in the trial process itself.” (Internal quotations omitted.)
[CITATION], ¶ 17, quoting [CITATION], ¶ 9, quoting
[CITATION]. Such errors permeate “[t]he entire
conduct of the trial from beginning to end so that the trial cannot reliably serve its function
[SEGMENT 4]
as a vehicle for determination of guilt or innocence.” (Internal quotations and citations
omitted.) Id.
{¶39} This Court has held the “[f]ailure to properly instruct a jury is not in most
instances structural error, thus the harmless-error rule of [CITATION], applies; failure to properly instruct the jury does
not necessarily render a trial fundamentally unfair or an unreliable vehicle for determining
guilt or innocence.” [CITATION], ¶ 72 (5th Dist.), citing [CITATION], ¶ 119 (5th Dist.), citing [CITATION].
{¶40} The State claims “[t]he trial court * * * read the jury instructions [prepared
prior to Appellant’s decision to testify], but when the trial court got to the last paragraph,
it realized the paragraph about the defendant not having to testify was still present in the
instructions, so the court merely told the jury to disregard that paragraph.” Brief of
Appellee at p. 19. The State concludes, “[t]he trial court was not instructing the jury to
disregard the instruction” relative to witness credibility. Id. Although the State’s
explanation may very well be accurate, we find nothing in the record before us to
definitively confirm the jury understood the “last paragraph” which “does not apply”
referred to an instruction which had not been read to them.
{¶41} Thus, the question on review is whether the given instructions and the trial
court’s subsequent statement, “The last paragraph does not apply because [Appellant] Stark County, Case No. 2023CA00108
did take the witness stand,” were so confusing such that they affected Appellant's
substantial rights or contributed to his conviction. See, [CITATION], citing Crim.R. 52(A). While the trial court’s instruction to disregard the
last paragraph of the jury instructions addressing witness credibility was an inadvertent
mistake (error), we find the given instruction and the trial court’s statement did not affect
Appellant’s substantial rights or contribute to his convictions. We conclude there was no
structural error in this case. See [CITATION]. We
have thoroughly reviewed the extensive record in this matter, including a thorough
reading of the entire trial transcript, and find the jury did not lose its way and the trial
court’s mistaken instruction was harmless.
Ineffective Assistance of Counsel
{¶42} Appellant submits trial counsel was ineffective for failing to object to the
aforementioned statement by the trial court.
{¶43} A properly licensed attorney is presumed competent. [CITATION]. In order to prevail on a claim of ineffective assistance of counsel,
an appellant must show counsel's performance fell below an objective standard of
reasonable representation and, but for counsel's error, the result of the proceedings would
have been different. [CITATION]. In other words, an appellant must show counsel's conduct so
undermined the proper functioning of the adversarial process the proceedings cannot be
relied upon as having produced a just result. Id. In determining whether counsel's
representation fell below an objective standard of reasonableness, judicial scrutiny of
counsel's performance must be highly deferential. [CITATION]. Because of the Stark County, Case No. 2023CA00108
difficulties inherent in determining whether effective assistance of counsel was rendered
in any given case, a strong presumption exists counsel's conduct fell within the wide range
of reasonable professional assistance. Id.
{¶44} In order to warrant a reversal, an appellant must additionally show he was
prejudiced by counsel's ineffectiveness. “Prejudice from defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was
unreliable or the proceeding fundamentally unfair because of the performance of trial
counsel.” [CITATION], citing [CITATION]. The United States Supreme Court and the Ohio Supreme Court have
held a reviewing court “need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” [CITATION], quoting [CITATION].
{¶45} Having already found the trial court’s statement did not affect Appellant’s
substantial rights or contribute to his conviction, Appellant is unable to establish he was
prejudiced by trial counsel’s failure to object to the trial court’s statement, “The last
paragraph does not apply because [Appellant] did take the witness stand.” Therefore,
Appellant cannot prevail on his claim of ineffective assistance of counsel.
{¶46} Appellant’s first and fourth assignments of error are overruled.
II
{¶47} In his second assignment of error, Appellant argues his convictions were
against the manifest weight of the evidence as the State failed to prove he did not act in
self-defense. We disagree. Stark County, Case No. 2023CA00108
{¶48} The State’s burden of disproving a defendant's claim of self-defense beyond
a reasonable doubt is subject to a manifest weight review on appeal. [CITATION], citing [CITATION]. When
conducting a manifest weight review, “[t]he court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of the witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.” [CITATION], quoting [CITATION]. A case should not be reversed as being
against the manifest weight of the evidence except “ ‘in the exceptional case in which the
evidence weighs heavily against the conviction.’ ” Id.
{¶49} When an accused asserts the defense of self-defense, he does not seek to
negate any of the elements of the offense which the State is required to prove. Self-
defense is an admission of the prohibited conduct coupled with a claim the surrounding
facts or circumstances exempt the accused from liability; therefore, “justification for
admitted conduct.” [CITATION], citing [CITATION].
{¶50} “The elements of self-defense differ depending on whether the defendant
used deadly or non-deadly force to defend himself.” [CITATION], quoting [CITATION]. “The use of a gun
constitutes the use of deadly force.” [CITATION].
{¶51} R.C. 2901.05(B)(1) provides: Stark County, Case No. 2023CA00108
A person is allowed to act in self-defense, defense of another, or
defense of that person's residence. If, at the trial of a person who is accused
of an offense that involved the person's use of force against another, there
is evidence presented that tends to support that the accused person used
the force in self-defense, defense of another, or defense of that person's
residence, the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense, defense of another,
or defense of that person's residence, as the case may be.
R.C. 2901.05(B)(1).
{¶52} Thus, the current version of R.C. 2901.05(B)(1) requires the State to
disprove self-defense by proving beyond a reasonable doubt the accused: “(1) was at
fault in creating the situation giving rise to the affray, OR (2) did not have a bona fide
belief that he was in imminent danger of death or great bodily harm for which the use of
deadly force was his only means of escape, OR (3) did violate a duty to retreat or avoid
the danger.” [CITATION]
{¶53} Appellant maintains the trier of fact lost its way in rejecting his claim of self-
defense as such was supported “by all of the scientific, forensic, and medical evidence.”
Brief of Appellant at p. 17. It is well settled “a conviction is not against the manifest weight
of the evidence simply because the [trier of fact] rejected the defendant's version of the
facts and believed the testimony presented by the state.” (Internal citations omitted.) [CITATION] quoting [CITATION] The trier of fact is free to believe all, some, or none of the evidence presented Stark County, Case No. 2023CA00108
by the State or defense at trial. [CITATION], ¶ 16 (8th Dist.). We
cannot conclude the jury lost its way.
{¶54} First, the evidence supports the conclusion Appellant created the situation
giving rise to the affray. At trial, Appellant testified Stevenson “lunged at [him] and
attacked [him].” Tr. Vol. II, p. 420. Appellant stated, during the attack, he heard two loud
pops, so he reached for his gun. Appellant admitted he did not see a gun in Stevenson’s
hand. Stevenson ran away and Appellant gave chase. Appellant claimed, as he was
chasing Stevenson, Stevenson put his arm back and Appellant heard another loud pop.
Appellant then shot at Stevenson. In contrast, during his interview with Detective
Romanin, which was played for the jury, Appellant did not tell the detective Stevenson
was in possession of a gun or Stevenson had fired the first shot. Rather, Appellant
admitted Stevenson lunged at him and he “just started firing.” Tr. Vol. I, p. 39.
{¶55} Further, the record establishes Appellant did not have reasonable grounds
to believe he was in imminent or immediate danger of death or great bodily harm.
[SEGMENT 5]
Generally, neither words alone nor fear itself will constitute evidence of serious
provocation. “[W]ords alone will not constitute reasonably sufficient provocation to incite
the use of deadly force in most situations.” [CITATION].
“Fear alone is insufficient to demonstrate the kind of emotional state necessary to
constitute sudden passion or fit of rage.” [CITATION].
{¶56} At trial, Appellant explained, after determining Stevenson was the individual
he saw near Nimisilla Park, he “drove around just out of protection of myself because I
don’t – didn’t know what he have or what he could do, and I didn’t want to risk driving
literally past him and he did something.” Tr. Vol. II, pp. 389-390. However, during his Stark County, Case No. 2023CA00108
interview with Detective Romanin, Appellant indicated, “I was scared for my wife and my
daughter. I wasn’t scared for me.” Tr., Vol. I, p. 39. There was simply no evidence at trial
to support Appellant’s assertion he believed he was in imminent or immediate danger of
death or great bodily harm.
{¶57} Finally, the evidence supports the finding Appellant's use of a gun was not
reasonably necessary under the circumstances. [CITATION], quoting [CITATION]. (“[T]he use of deadly force in self-defense must be reasonably
proportionate—self-defense ‘is not available unless the defendant shows that the force
used to repel the danger was not more than the situation reasonably demanded.’ ”). The
evidence at trial revealed Stevenson was not in possession of a firearm at the time of the
shooting and Appellant acknowledged he did not see Stevenson with a firearm. In
addition, witnesses stated Stevenson had his arms up and his hands were empty.
{¶58} In addition, Dr. Krywanczyk testified the first gunshot she examined entered
Stevenson’s left frontal scalp and exited his upper lip with a downward trajectory,
indicating Stevenson was below Appellant when he was shot. The second gunshot
wound Dr. Krywanczyk examined entered the left side of Stevenson’s back and exited
the right side of his abdomen, indicating Stevenson was faced away from Appellant.
{¶59} Appellant initiated the contact with Stevenson and willingly engaged in a
physical altercation with someone he subjectively claimed possessed a weapon.
“Generally, a defendant, having willingly advanced toward a volatile situation cannot rely
on the affirmative defense of self-defense.” [CITATION].
====== End of Part of a Court Ruling ====== Stark County, Case No. 2023CA00108
{¶60} Also, of significance, is the fact Appellant chased Stevenson after Appellant
claims to have heard two loud pops. Appellant then shot Stevenson in the forehead as
Stevenson laid on the ground. Clearly, Appellant’s active pursuit of Stevenson after the
initial confrontation supports the State’s argument Appellant also violated his duty to
retreat or avoid the danger.
{¶61} Based upon the foregoing, we find the State disproved Appellant’s claim of
self-defense by proving beyond a reasonable doubt Appellant was at fault in creating the
situation giving rise to the affray, did not have a bona fide belief he was in imminent
danger of death or great bodily harm for which the use of deadly force was his only means
of escape, and he violated a duty to retreat or avoid the danger. Accordingly, we find
Appellant’s convictions were not against the manifest weight of the evidence.
{¶62} Appellant’s second assignment of error is overruled. Stark County, Case No. 2023CA00108
III
{¶63} Appellant withdrew his third assignment of error at oral argument in this
matter on July 9, 2024. Accordingly, Appellant’s third assignment of error is overruled.
{¶64} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Baldwin, J. concur
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-23-1036
Appellee Trial Court No. CR0202102711
v.
Darryl Lathan, II DECISION AND JUDGMENT
Appellant Decided: June 28, 2024
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Megan M. Patituce, Joseph C. Patituce, and
Catherine Meehan, for appellant.
*****
MAYLE, J.
{¶ 1} Following a jury trial, defendant-appellant, Darryl Lathan, II, appeals the
January 20, 2023 judgment of the Lucas County Court of Common Pleas, convicting him
of murder and felonious assault, with firearms specifications, and failure to comply with
an order or signal of a police officer. For the following reasons, we affirm the trial court
judgment. I. Background
{¶ 2} Darryl Lathan was charged in a three-count indictment in connection with
the May 16, 2021 shooting death of A.R. He entered a plea of guilty to Count 3, failure
to comply with an order or signal of a police officer, a violation of R.C. [CITATION], and [CITATION]. The remaining counts—Count 1, murder, a violation of R.C.
[CITATION] and [CITATION], and Count 2, felonious assault, a violation of R.C.
[CITATION] and [CITATION], and firearms specifications under R.C. [CITATION] and
[CITATION]—were tried to a jury in August of 2022.
{¶ 3} The State presented the testimony of Toledo Police Lieutenant Philip Cook;
Officers Daniel Welch and Bradley Knapp; Sergeant Aaron Riter; Detectives Scott Mills,
Kristi Eycke, and Jeffrey Sharp; University of Toledo Police Officer John Sawicki; Lucas
County Deputy Coroner Jeffrey Hudson, M.D.; and A.R.’s brother, D.D. Lathan
testified, and he presented the testimony of his cousin, D.G., and his brother, C.J. There
were video cameras monitoring multiple angles at businesses near the scene of the
shooting and at the hospital where the victim was taken, and there were dashboard
cameras in the police vehicles and in the car Lathan drove that night. Extensive video
footage was therefore admitted into evidence.
A. The State’s Evidence
{¶ 4} According to the evidence presented by the State, sometime after midnight
on May 16, 2021, A.R., D.D. (nicknamed Pooter), and a group of their friends went to the
Spotlight Lounge, a nightclub located at the corner of Angola and Reynolds Roads. The
2. club was very crowded when they got there, so they could not get inside. People
socialized and drank in the parking lot while waiting to be admitted into the club. Traffic
in the parking lot moved slowly, often stopping altogether.
{¶ 5} About 20 minutes after A.R. and his group got to Spotlight, Lathan arrived
with a group of friends and relatives, including C.J. and E.W. He arrived in a BMW that
pulled up behind a Jeep that was stopped near the door of the club. A maroon sedan was
stopped to the left of the Jeep.
{¶ 6} Lathan and A.R. knew each other because they grew up in the same
neighborhood, but they were not friends. To the contrary, they had been at odds with
each other for several years and had argued over Facebook. D.D. claimed that when A.R.
noticed that Lathan was there, he told D.D. that he wanted to leave. A.R. then walked
away, but D.D. did not know where he went.
{¶ 7} Video shows that the driver of the BMW tried to reverse shortly after
arriving at Spotlight, but other cars were lined up behind the vehicle, preventing it from
going very far. The BMW stopped and its occupants exited the vehicle. Some of them
approached and greeted people that they knew. Lathan’s friend, E.W., knew D.D. from
playing sports together in school, and they stopped and talked to each other towards the
front passenger side of the vehicle.
{¶ 8} A.R. had been wearing a mask that night, similar to a ski mask or ninja
mask, but initially it was pushed up on his head holding back his dreadlocks. At some
point, he pulled the mask down to cover his face. Video cameras recorded a masked A.R.
3. grab a gun out of a fanny pack, cock it, and walk around the maroon sedan and Jeep that
were stopped immediately in front of the BMW. Lathan was standing at the driver side
door of the BMW. As A.R. walked around the side of the Jeep, Lathan shot at A.R. and
struck him, then ran away from Spotlight and across Reynolds Road.
{¶ 9} A.R. stumbled past the door of the club and fell, dropping the gun. D.D. was
holding a bottle of Patron, which he threw in Lathan’s direction. E.W. got into the
BMW. D.D. ran back towards A.R., grabbed his gun off the sidewalk, and started
[SEGMENT 6]
running in the direction where Lathan ran. As he passed the BMW, he shot into it, shot
back towards it again, ran through the parking lot, then ran back towards Spotlight; D.D.
estimated that he shot the gun four times. E.W. was struck by one of the bullets D.D.
fired at the BMW. D.D. recalled that as he ran past the BMW, he heard other shots being
fired. He did not know if Lathan continued firing as he ran away. D.D. maintained that
someone took the gun from him as he was leaving Spotlight.
{¶ 10} A.R. and E.W. were transported by their friends to the University of Toledo
Medical Center. Lathan was picked up in the BMW at the corner of South Avenue and
Reynolds Road and accompanied E.W. to the hospital. Videos outside the emergency
room entrance show that D.D. and Lathan encountered each other there and engaged in a
physical altercation that was quickly broken up by law enforcement. D.D. told Lathan,
“you’re going to die tonight, bitch.”
{¶ 11} Once they were separated, Lathan took off in the BMW. Toledo Police
Officers attempted to stop Lathan’s vehicle, but he led them on a high-speed chase that
4. ended when his vehicle hit a rock at Rock Spring and Glen Ridge Roads. Lathan got out
of the car and fled on foot, but was easily identified because he left a wallet with his
credit cards and state identification in the driver’s side panel of the BMW. Police also
found keys with the first name of Lathan’s mother on them, a cell phone that contained
email addresses associated with Lathan, and a gun holster on the floor of the front
passenger seat. When the vehicle was processed at the impound lot, bullet defects were
discovered in the right front bumper of the vehicle, windshield, left rear quarter panel,
left front door frame, B pillar of the front left side, and middle armrest. A bullet core was
found in the upper decking of the rear window and a fragment of bullet jacketing was
found on the floor of the back seat.
{¶ 12} An autopsy revealed that A.R. suffered a superficial gunshot wound that
grazed his right ring finger; a gunshot wound that entered the back of his right leg and
exited above the knee, fracturing his femur; and a gunshot wound that entered the upper
left side of his back near his armpit and exited through his chest. The gunshot wound to
his back went through the left ventricle of his heart and caused his death.
{¶ 13} E.W.’s gunshot wound was not fatal. D.D. was charged with felonious
assault with a firearms specification for E.W.’s shooting, but ultimately entered into a
plea agreement with the state. Under that agreement, D.D. entered a plea of guilty to
felonious assault, the firearms specification was dismissed, and D.D. agreed to provide
truthful testimony at Lathan’s trial. D.D. denied that he intentionally shot E.W.
5. {¶ 14} Investigators who processed the scene on the night of the shooting
observed five vehicles in the Spotlight parking lot; three of the five had been damaged by
bullets. The windshield of a Jeep was struck by a bullet. The bullet lay on the dashboard
of the vehicle. An Acadia was struck by bullets twice in the front bumper, and a Chrysler
300 had two bullet defects in the windshield. Investigators found the identification of
Lathan’s brother, C.J., in the Acadia, and the vehicle was registered to Lathan’s mother.
{¶ 15} Numerous shell casings and bullets were also found in the parking lot. In
all, 27 casings were collected. There were eight casings and one live round of
ammunition clustered in the same general vicinity near a light post. There was another
cluster of ten shell casings in front of where the Acadia was stopped, and a couple more
nearby. Additional spent bullets, bullet fragments, and jackets were also found. No
casings were found in the area where A.R. was standing, but because it was a crowded
scene, casings could have moved around as a result of being kicked as people ran or
lodged in tires as people drove off. All the live rounds and spent casings came from nine-
millimeter weapons. It was determined that the casings collected were fired from three
different firearms. None of the firearms were recovered. Some of the shell casings were
matched to two other separate shooting incidents in Toledo, but firearms were never
located in those cases either and there were no victims in those other shootings. None of
the witnesses interviewed ever identified any shooters at the scene other than Lathan and
D.D.
6. {¶ 16} Investigators interviewed witnesses, collected fingerprints, and swabbed
various items for DNA. Many witnesses refused to cooperate. In fact, E.W. provided
false statements to police when he was first interviewed in this case and was charged with
obstruction. Investigators also used cell phone data to confirm that Lathan was in the
vicinity of Spotlight at the time of the shooting and was in the vicinity of Rock Spring
and Glen Ridge around the time the pursuit of the BMW terminated.
{¶ 17} Cross-examination focused on whether A.R. raised his gun to shoot,
whether there were shots fired by individuals other than Lathan and D.D., and whether
A.R., D.D., and a man referred to as Brown Hat signaled each other in an effort to set
Lathan up to be shot. D.D. denied that he and Brown Hat signaled to each other, but he
conceded that in the video of the incident, (1) it appeared that Brown Hat signaled to
A.R., and (2) A.R. appeared to have raised his gun when he got to the side of the Jeep.
D.D. admitted knowing that A.R. had a gun on him, but denied seeing it out that night. In
fact, at the time shots were fired, D.D. believed his brother was still in front of the Jeep;
he did not know that he had walked behind the cars and rounded the right side of the
Jeep. D.D. insisted that he did not act in concert with anyone to try to kill Lathan.
{¶ 18} Although numerous angles were recorded by the BMW’s dash cam and
various surveillance cameras in the area, none of the cameras perfectly captured all the
participants’ movements.
7. B. Lathan’s Version of Events
{¶ 19} Lathan did not deny that he shot A.R., but he claimed that he did so in self-
defense. He presented testimony from D.G. and C.J., then testified in his own defense.
. Lathan’s Cousin, D.G.
{¶ 20} D.G. testified that he was at Spotlight that night. He walked out to his car
to get his vape pen and discovered that Lathan and other relatives were there. At first
Lathan was sitting on the edge of the car door. He got out and D.G. and Lathan shook
hands. D.G. saw A.R. and D.D. He considered them to be friends. He denied being
aware of any animosity between A.R. and Lathan.
{¶ 21} D.G. saw that one of his female cousins was talking to D.D., and he
stopped and spoke with them. D.G. and D.D. walked toward the door of the club. At
some point, A.R. and D.D. were at the door near him, and they were staring at Lathan;
A.R. was not wearing a mask at that time. D.G. described that things did not seem hostile
at first, but he felt the mood change. People were “talking amongst each other and
pointing a certain way.” He said that because he felt tension, he told everyone to “chill”
and that they were “all family tonight.”
{¶ 22} Although he did not know what was going on, D.G. said that he “knew [he]
needed to get out of there.” He testified that he was scared and wanted to get out of the
way. While standing near the door to the club, he raised his arm to try to get C.J.’s
attention because he felt that something was about to happen and he wanted to warn C.J.
to “get out of the way.” He said he tried to call C.J., but C.J. did not have his phone. As
8. D.G. pulled on the door to go back inside, shots were fired; he denied that he pointed at
A.R. before the shots were fired. He insisted that he did not see the shooter and did not
see anyone with a gun.
. Lathan’s Brother, C.J.
[CITATION] C.J. testified that he drove to Spotlight that evening in his mother’s GMC
Acadia. Before going to Spotlight, he, Lathan, E.W., and other friends had been at
another club. He followed the BMW that Lathan was riding in. The parking lot was
crowded and traffic was moving slowly. His vehicle was at a complete stop; they tried to
reverse but they were blocked in by other vehicles. They got out of the vehicle and said
hi to people they knew.
[CITATION] After being there a few minutes, C.J. saw somebody with a gun and a
mask, so he started walking the opposite way. He felt fearful for the other people he was
with. As he walked to his car, he heard gunshots and hid behind the car. He heard more
[SEGMENT 7]
than ten shots, but did not see the shots being fired. He felt bullets fly by him and hit off
the car next to him. He ran towards a field on Reynolds Road and left his car and cell
phone at Spotlight. He never looked back after the shots were fired, and he never
returned to make sure that his family was okay.
[CITATION] C.J. denied knowing that A.R. or D.D. was going to be at the club. He
denied knowing that Lathan had a gun that night and did not see him with a gun.
9. 3. Lathan
{¶ 26} Lathan testified that he and A.R. knew each other from their neighborhood
and grew up together. A.R. was two years younger than Lathan. Lathan denied that he
had a problem with A.R., but claimed that A.R. had a problem with him. A.R. made
threats about Lathan in a music video. A.R. also had others tag Lathan in social media
posts. People told Lathan that A.R. was going to kill him when he saw him.
{¶ 27} A.R. had been threatening Lathan for a while, so at first, Lathan did not
take it seriously. Eventually, Lathan felt threatened. Lathan explained that like D.D., he
also goes by the nickname “Pooter.” He testified that A.R. made a song with lyrics
stating that Pooter “better kill [A.R.] before [he] end[s] up dead,” and A.R. also said he
was going to rob and shoot Lathan. Lathan claimed that A.R. had a reputation for
violence and he is personally aware that A.R. has shot multiple people. He claimed that
he feared A.R. and he feared him the night that they were at Spotlight.
{¶ 28} Lathan arrived at Spotlight in a BMW; E.W. and R. rode with him. His
brother arrived behind him in an SUV. The traffic moved slowly. Lathan saw a friend
from his neighborhood named Chewy, and Lathan hung out the window to get his
attention. Chewy did not come over to talk to him, and this seemed unusual. Chewy
leaned in the car ahead of the BMW, looked back at Lathan, gave him a sour look, then
shook his head. Lathan then saw A.R. walk out of the club; he was smiling and looked
like he was trying to say something to Chewy. A.R. looked over at Lathan and his smile
faded. A.R. was not wearing a mask at that point. He disappeared into the parking lot.
10. {¶ 29} Lathan wanted to leave. There was a car ahead of the BMW blocking it in,
and he told them to move, but could not get through. His brother also attempted to back
the SUV out, but the cars behind him prevented them from leaving the line of cars.
{¶ 30} Unable to leave, Lathan remained in the car at first. His cousin came up to
him and hugged him and told him to be careful. Lathan claimed that people started
telling him that “they about to shoot your car up.” People told him “get your dumb ass
out of the car,” so he got out by climbing out the window.
{¶ 31} Lathan maintained that before going to Spotlight, he was not armed with a
weapon and there was no weapon in the vehicle. But while he was hanging out of the
window, someone asked him if he was “strapped.” He said no. He claimed that as he
scanned the parking lot for A.R., “a gun end[ed] up on [his] lap, like somebody must have
stuffed it” in his lap. He did not know who did this because the music was loud and he
was not paying attention at the time.
{¶ 32} Music was playing in the parking lot, and Lathan danced around in front of
the car a little, still looking for A.R. over the cars. He walked the “peripher[y]” of the car
because he knew A.R. was “about to pop out of somewhere.” A.R. and D.D’s friends
approached Lathan, so he walked towards them. D.D. is usually neutral when it comes to
Lathan and they usually talk when they see each other. The group shook hands with each
other.
11. {¶ 33} Brown Hat shook his hand, but Lathan said that Brown Hat does not like
him. He could see that Brown Hat was carrying a gun on his hip. After shaking Lathan’s
hand, Brown Hat and his group kept walking and disappeared into the parking lot.
{¶ 34} Lathan became fearful that he was being set up. One of the people in that
group had told Lathan that A.R. was going to kill Lathan when he saw him. He felt that
A.R.’s group was “trying to distract [him] while [A.R.] pop up from wherever he popping
up from.” Lathan shifted to the left and looked for A.R. between the cars.
{¶ 35} Lathan saw three of A.R.’s friends. One was sitting on a car, dressed in
black, and “masked up.” He had a gun. Another of A.R.’s friends was “crouched down
with a mask on” looking at Lathan from the back of the car. He did not know the third
man, but he recognized the other two “from the neighborhood.” Lathan testified that these
men were known for shooting people.
{¶ 36} Lathan felt stuck. He wanted to run, but he couldn’t because that also would
have been dangerous. Also, his wallet and phone were in the car. He turned back around
to tell his friends to watch out and pay attention because A.R. would not have any problem
shooting them. As he was going back, A.R. “finally pop out from between the cars where
the two other people with guns was.” A.R. had a mask on and a gun in his hand. They
looked directly at each other. Lathan claimed that everyone was looking at him because
they knew what A.R. was about to do.
{¶ 37} Lathan hoped that D.D. or one of his friends would get A.R., but A.R. walked
to his left in front of the car and continued to walk. C.J. and E.W. were in that direction
12. talking to D.D. Lathan tried to tell them to get out of the way because A.R. was going to
shoot them all. A.R. was trying to get into position to shoot him, and A.R.’s friends were
already in position to do so. Lathan was trying to watch all of them. His gun was not yet
out. But then, A.R. walked to the curb, peeked back at Lathan, and raised the gun. Lathan
was 100 percent certain that A.R.’s gun was cocked. Lathan “hurried up and shot.”
A.R. would not have seen Lathan’s gun because it wasn’t out. Lathan hurried
up, raised it, and shot. He had recently had shoulder surgery, so he knew it was going to
hurt to raise the gun. Lathan claimed he fired it twice. He insisted that A.R.’s gun went
off too because he saw bullets fly out. He pointed out in the video where he saw A.R.’s
gun spark and identified where he saw smoke from the gun. Lathan maintained that two
other people shot at him as well, and he pointed out in the video where the other shooters
were located.
Lathan described that A.R. kind of ran, tripped over the curb, and went
flying. Lathan “ducked off” running, dodging A.R.’s shots, but he did not run instantly
because guns were pointed at his face. He ran towards Reynolds Road, all the while hearing
“shots going nonstop.” He ran across Reynolds, climbed over a gate, then ran into a trailer
park. Lathan said that the gun fell out of his hand sometime when he was running. He lost
his glasses too.
Lathan believed he had been struck by a bullet. His friend, R., ran across
Reynolds too and ran past Lathan. Lathan called his name and R. checked Lathan and
determined that he had not been shot. E.W. called R.—Lathan’s phone was still in the car.
13. E.W. said he had been shot; Lathan assumed that A.R. had shot him, but E.W. told him it
was Pooter (i.e., D.D.). R. ran back to get E.W. and Lathan stayed hiding. R. came back
in the BMW to pick up Lathan and they drove E.W. to the hospital.
{¶ 41} When they got to the hospital, the doors were locked. D.D. and his group
were inside the hospital, which confused Lathan because he did not know that anyone in
D.D.’s group had been shot. He just thought that A.R. had fallen over the curb.
{¶ 42} Lathan and D.D. faced off at the door. The door opened from the inside.
When it opened, Lathan put his hands up to fight, and so did D.D. D.D. swung at him and
bumped him. Lathan could not fight back because of his shoulder injury. He was in pain
and he started running away from him. Police officers eventually grabbed D.D.
[SEGMENT 8]
{¶ 43} An officer’s body camera recorded Lathan tell R. to get D.D. D.D. yelled at
Lathan that he was going to kill Lathan and Lathan would die that night. Lathan and R.
were outnumbered and D.D. kept breaking free from police. Although Lathan did not see
any guns, he knew that people had guns. Lathan told E.W. to go inside and he went to the
driver’s seat of the BMW and told R. to come with him because he was going to get
“fuck[ed] up.” R. didn’t come, so Lathan just left. He insisted that he left not because he
had just fired a weapon at Spotlight, but because he was afraid for his life. He thought
D.D.’s group would start shooting. Lathan said he eventually realized that police were
chasing him and he regrets not stopping. He pled guilty to charges stemming from the
police chase.
14. {¶ 44} Lathan claimed that he did not want to shoot A.R., but he feared imminent
death or serious bodily harm at A.R.’s hands. This fear extended to his family who were
present at Spotlight. He also feared imminent death or serious bodily harm at UTMC.
{¶ 45} On cross-examination, Lathan testified that A.R. had threatened him face-to-
face in the past when they were both at a bar called D’Icon. A.R. told Lathan he would
“shoot this mother fucker up.” Lathan denied that he had any problem with A.R. He also
denied making a rap song talking about how he killed A.R. Lathan claimed that he always
went out of his way to avoid A.R., even going to stores that were further away to avoid
running into him.
{¶ 46} Lathan conceded that A.R. did not point the gun at him and did not try to
shoot him when he was standing at the closest point to Lathan and would have had the
easiest shot. He believes that A.R. was surprised to see him because he had previously
been in a different spot. Lathan believes that they were also trying to set up E.W. He
debated the suggestion that A.R. would not have shot in E.W.’s direction because E.W.
was standing next to D.D.
{¶ 47} Lathan denied that A.R. had his back to him when he was shot. He described
A.R. as being “slanted,” looking back at him. He challenged the prosecutor’s contention
that sparks were not visible from A.R.’s gun. He said that if the recording is played slowly,
sparks can be seen, but he conceded that on regular speed, they cannot. Lathan testified
that people on the side of the maroon sedan, next to the Jeep, shot at him after he shot A.R.
15. {¶ 48} In a jailhouse phone call, Lathan denied shooting A.R. He explained that he
said this because he was not legally allowed to possess a firearm and did not know that it
would be legal for him to use a firearm in self-defense.
C. The Verdict and Motion for New Trial
{¶ 49} The jury found Lathan guilty of murder and felonious assault, along with
the specifications. Thirteen days later, on August 18, 2022, Lathan sought and was
granted leave to file a motion for a new trial. He argued that one of the jurors—Juror
#7—engaged in misconduct by failing to disclose that he knew defense counsel.
{¶ 50} According to Lathan’s motion, on August 4, 2022, the wife of defense
counsel came to court to watch her husband examine defense witnesses. On her way to
the courtroom, she saw a man she had worked with between 2011 and 2014; she did not
speak with him. When the jury was led into the courtroom, she realized that the man was
seated as a juror on the case. She perceived that he was staring at her, which made her
uncomfortable, so she left the courtroom and went home. After she left, her husband
called her, and she explained that she left because she knew one of the jurors. She told
her husband that she did not speak with the juror and did not know if the juror knew that
she was married to defense counsel.
{¶ 51} The next day, defense counsel called his wife to tell her that the jury had
found Lathan guilty. Soon after, Juror #7 direct messaged her on Facebook and said:
“1st off it was nice to see you n 2nd husband did nice job for his first case .” She
did not respond. She looked through her messages and saw that she and Juror #7 had
16. direct messaged on Facebook in 2018. He asked her opinion about a job opportunity and
she gave him her advice. He responded “[a]re you taking bf apps and is it free lol[.]”
She did not respond.
{¶ 52} Lathan argued that if he had known that Juror #7 had asked to apply to be
defense counsel’s wife’s boyfriend and “had been rebuffed,” he would have wanted Juror
#7 removed from the jury. He acknowledged that at the time of voir dire, Juror #7 may
not have known that he knew defense counsel’s wife, but he knew on the third day of
trial. Although Lathan’s motion did not explicitly allege that Juror #7 was biased or
impartial or that he failed to honestly answer questions during voir dire, he cited cases
recognizing that a defendant is entitled to an impartial, unprejudiced, and unbiased jury,
and that a new trial may be granted where a juror has failed to honestly answer material
questions during voir dire.
{¶ 53} On December 5, 2022, Lathan filed a motion for disclosure of jury
information, including the names, addresses, and employer information for each juror.
The court denied the motion because it found that there had not been an initial showing of
juror misconduct. The motion proceeded to a hearing on December 19, 2022, at which
defense counsel testified.
{¶ 54} In a judgment journalized on January 18, 2023, the trial court denied
Lathan’s motion for new trial for two primary reasons: (1) prospective jurors were never
asked if they knew any family members of the attorneys and defense counsel admitted
that he had no cause to believe that the juror knew that defense counsel was married to a
17. person the juror knew; and (2) defense counsel was informed by his wife before closing
arguments of her connection to the juror, yet defense counsel did not bring the issue to
the court’s attention, suggesting to the court that counsel did not actually believe that
Juror #7 could not be fair and impartial during deliberations.
{¶ 55} The court did not allow an additional hearing for Lathan to examine Juror
#7 and the other jurors.
D. Sentencing
{¶ 56} On January 19, 2023, the trial court sentenced Lathan. It found that Counts
1 and 2 merged for purposes of sentencing and sentenced him on Count 1. The court
imposed a stated minimum prison term of 15 years to life and a mandatory consecutive
term of three years on the firearms specification. On Count 3, the court imposed a prison
term of 30 months to run consecutively to the sentence imposed for Count 1. Lathan’s
conviction and sentence were memorialized in a judgment journalized on January 20,
2023.
{¶ 57} Lathan appealed. He assigns the following errors for our review:
ASSIGNMENT OF ERROR I: The trial court erred in excluding
relevant evidence of Mr. Lathan’s self-defense claim, thereby violating his
Sixth Amendment Right to a meaningful defense.
ASSIGNMENT OF ERROR II: Mr. Lathan’s conviction was
against the manifest weight of the evidence.
18. ASSIGNMENT OF ERROR III: The trial court erred in denying
Mr. Lathan’s Motion for New Trial.
II. Law and Analysis
{¶ 58} In his first assignment of error, Lathan challenges the trial court’s exclusion
of a video recorded by the victim three months before the shooting, in which he allegedly
rapped about his intent to kill Lathan. In his second assignment of error, he argues that
the jury’s verdict rejecting his claim of self-defense was against the manifest weight of
the evidence. In his third assignment of error, Lathan argues that the trial court erred in
denying his motion for a new trial. We consider each of Lathan’s assignments in turn.
A. Exclusion of Evidence
{¶ 59} On August 3, 2022—the evening before Lathan was set to begin presenting
his case-in-chief—Lathan’s counsel provided the State a copy of a rap video that A.R.
allegedly posted online in February of 2021, which counsel said had just been found. In
it, A.R. claimed to have committed several shootings and “specifically call[ed] Mr.
Lathan out as a mark,” warning him that he better kill A.R. before A.R. kills him. The
State objected to the admissibility of the recording. It argued that it was not timely
disclosed, was unfairly prejudicial, and contained exaggerations intended for
entertainment purposes. The trial court ruled that Lathan could testify about the rap
[SEGMENT 9]
video, but it could not be admitted into evidence or played at trial because it had not been
disclosed in accordance with Crim.R. 16. In his first assignment of error, Lathan argues
that the trial court erred when it excluded this evidence.
19. {¶ 60} In support of this assignment of error, Lathan contends that (1) the video
was admissible as a specific instance of A.R.’s threat to kill him and was probative to
establish his subjective fear of A.R.; and (2) the trial court failed to engage in the proper
analysis before excluding the evidence and failed to impose the least restrictive sanction
for Lathan’s discovery violation. In response, the State does not dispute the relevance of
the video, but argues that (1) it was within the trial court’s discretion to exclude the
evidence; (2) the trial court engaged in the proper analysis before excluding the video;
and (3) Lathan suffered no prejudice because he was permitted to testify “to anything and
everything” contained in the video.
{¶ 61} The way this issue materialized at trial was as follows. On August 3, 2022,
the third day of trial, the State rested, Lathan moved for acquittal, and the trial court
denied the motion. At some point that day—the record does not make clear when—
Lathan’s attorneys alerted the State and the court that it had received an electronic
transmission of a video posted by A.R. in February of 2021. The parties apparently
provided case law to the trial court concerning the admissibility of that video. On August
4, 2022, the parties argued their positions to the court.
{¶ 62} Lathan argued that the case law makes clear that in a self-defense case,
prior acts and threats made by the victim, which are known to the defendant, are
admissible to show the defendant’s subjective belief of imminent death or serious bodily
harm. The State responded that Lathan filed his motion of intent to assert self-defense in
July of 2022, the video was published on YouTube and not in some secret forum, and
20. because of its late disclosure, the video should not be admitted. It commented that if the
State had attempted to introduce evidence that was publicly available but not previously
disclosed, it doubted the court would allow its introduction. It also complained that there
were never any actual acts of violence by A.R. against Lathan, there were other aspects of
the video (e.g., guns) that may inflame the jury or cause them to “automatically assume
bad things about [A.R.’s] character,” and the video likely contained exaggerations
intended to entertain.
{¶ 63} Lathan replied that the video specifically threatened violent acts against
him, and A.R. admitted to other shootings that Lathan believes happened, Lathan was
aware of other instances of violence by A.R., A.R. had a reputation for violence, and all
these facts supported Lathan’s subjective belief that lethal force was necessary. He
pointed out that the State had sought to use jailhouse phone calls that were not previously
disclosed, and he explained that the video was filed under a unique name that was not the
victim’s given name or widely-known nickname. Even though Lathan knew of the
existence of the video, he could not remember the name needed to find the video; defense
counsel, by surprise, received a direct link to the video by an unknown third party.
Finally, because the State was aware from other witnesses that there was a “rap beef”
between Lathan and A.R., the State should not have been surprised by the video.
{¶ 64} The court agreed that testimony about the rap video was admissible, but it
ruled that “the video is not coming in” under Crim.R. 16 because of its late disclosure. It
observed that Lathan knew about the video and could have searched for it, and it found
21. that the way the video came to the attention of defense counsel was “curious.” The court
disagreed with Lathan that the video was comparable to jailhouse phone calls, and it
agreed with the State that if the State had attempted this tactic and the evidence was
allowed, the decision would surely be reversed on appeal. The court told the attorneys
that they were not going to engage in “trial by ambush,” and it reiterated that Lathan
could testify about the video, but it would not be played.
{¶ 65} Generally speaking, “the admission of evidence lies within the broad
discretion of the trial court, and a reviewing court should not disturb evidentiary
decisions in the absence of an abuse of discretion that has created material prejudice.”
[CITATION], ¶ 62, citing [CITATION]. Here, however, the trial court did not exclude the evidence under the Rules of
Evidence—it excluded the evidence under the Rules of Criminal Procedure because of
the failure to timely disclose the evidence. The State does not dispute the relevance of
the rap video or argue that it should have been excluded under Article IV of the Rules of
Evidence. We focus our attention, therefore, on the authority of the trial court to exclude
the evidence under the Rules of Criminal Procedure.
{¶ 66} Under Crim.R. 16(H), if a defendant serves a written demand for discovery
seeking disclosure of evidence from the State, “a reciprocal duty of disclosure by the
defendant arises without further demand by the state.” The rule requires the defendant to
provide copies of certain materials “intended for use by the defense as evidence at the
trial.” Id. Crim.R. 16(L)(1) permits the trial court to “make orders regulating discovery,”
22. and if “at any time during the course of the proceedings it is brought to the attention of
the court that a party has failed to comply with this rule . . . the court may . . . prohibit the
party from introducing in evidence the material not disclosed, or it may make such other
order as it deems just under the circumstances.” Imposition of discovery sanctions is
discretionary, and we review the trial court’s decision for an abuse of discretion. [CITATION]
Abuse of discretion means that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. [CITATION]
{¶ 67} Also pertinent here, Crim.R. 12.2—adopted effective July 1, 2022—
requires a defendant who proposes to offer evidence or argue self-defense “not less than
thirty days before trial . . . [to] give notice in writing of such intent” and to “include
specific information as to any prior incidents or circumstances upon which defendant
intends to offer evidence related to conduct of the alleged victim . . . .” The rule requires
the defense to notify the State “of evidence that the defense may offer in support of his
self-defense claim.” [CITATION] If a defendant
fails to do so, “the court may exclude evidence offered by the defendant related to the
defense, unless the court determines that in the interest of justice such evidence should be
admitted.” Crim.R. 12.2. As with Crim.R. 16, this is a matter of discretion for the trial
court.
{¶ 68} The Ohio Supreme Court has recognized that “[t]he philosophy of the
Criminal Rules is to remove the element of gamesmanship from a trial.” [CITATION]. The discovery rules are intended to “prevent
surprise and the secreting of evidence favorable to one party . . . [and] to produce a fair
trial.” [CITATION]. Those rules provide a
range of sanctions that the trial court, in its discretion, may impose on a noncomplying
party. [CITATION].
{¶ 69} In [CITATION], the Court provided guidance for courts in exercising their
discretion under Crim.R. 16. It cautioned that under some circumstances, “the sanction
of exclusion may infringe on a criminal defendant’s Sixth Amendment right to present a
defense[.]” [CITATION]. For instance, a defendant’s Sixth Amendment right may be
infringed where all his witnesses are excluded from testifying. [CITATION]. Cognizant of this
concern, the Court held “that a trial court must inquire into the circumstances surrounding
a discovery rule violation and, when deciding whether to impose a sanction, must impose
the least severe sanction that is consistent with the purpose of the rules of discovery.” [CITATION].
at 5. “Factors to be considered by the trial court include the extent to which the
prosecution will be surprised or prejudiced by the witness’ testimony, the impact of
witness preclusion on the evidence at trial and the outcome of the case, whether violation
of the discovery rules was willful or in bad faith, and the effectiveness of less severe
sanctions.” [CITATION].
{¶ 70} Importantly, however, the Court emphasized that its holding “should not be
construed to mean that the exclusion of testimony or evidence is never a permissible
sanction in a criminal case.” [CITATION]. Rather, “[i]t is only when exclusion acts to completely
24. deny defendant his or her constitutional right to present a defense that the sanction is
impermissible.” Id.
{¶ 71} In [CITATION], the defendant attempted to
introduce into evidence the victim’s personal journals to impeach her testimony and
explain her state of mind. The trial court excluded the evidence because it had not been
disclosed before trial. The court of appeals affirmed. It recognized that the defendant
[SEGMENT 10]
had a duty to disclose the evidence to the State prior to trial. It concluded that because he
failed to do so, the trial court did not err in excluding the journals. Id. at ¶ 15.
{¶ 72} Like [CITATION], the defendant in [CITATION] argued that “even if the court was
correct in ruling that the journals were subject to pretrial discovery, exclusion of the
journals was not the least restrictive sanction the trial court could have imposed.” Id. at ¶
16. The court acknowledged that the court could have imposed less restrictive sanctions,
but it found that the defendant bore the burden of requesting a less severe sanction, and
he failed to do so, thereby waiving the argument. It also concluded that even considering
the argument, “the trial court has broad discretion in imposing a sanction consistent with
the circumstances of the case,” and it found no abuse of that discretion. Id. at ¶ 20.
{¶ 73} Here, the trial court reviewed the case law and considered the purposes of
Crim.R. 16, the circumstances that [CITATION] claimed had prevented him from disclosing the
evidence in discovery, and the extent to which the presentation of [CITATION]’s defense
would be impacted by exclusion of the evidence. It agreed that [CITATION] “certainly” would
be allowed to testify about the rap video and anything in the past that caused him to
25. believe that his life was in danger, but at the same time, it was skeptical that the video
could not have been produced earlier given Lathan’s knowledge of its existence. As
such, it excluded the video, but specifically permitted Lathan to “talk about everything
that was said in it if he wants to.” But Lathan was specifically permitted to testify about
the contents of the video, thus exclusion of the video did not prevent him from presenting
a defense. Compare [CITATION] (observing that the effect of the
sanction of excluding Papadelis’s defense witnesses was to deny Papadelis the right to
present a defense).
{¶ 74} Lathan emphasizes that the video would have bolstered his defense because
it was independent evidence that he had reason to fear imminent death or serious bodily
harm by A.R. Perhaps this is true—the video is not part of the record, so we are unable
to agree or disagree with Lathan on that point. What we can say is that Lathan was
apparently aware of the existence of this video for at least 15 months before trial, and it
was incumbent on him to locate it in time to make pretrial disclosure of it. His disclosure
of it after the State rested was contrary to the purpose of Crim.R. 16, and it violated
Crim.R. 12.2. Based on the record before us, we cannot say that the trial court abused its
discretion by excluding the video as a Crim.R. 16 sanction.
{¶ 75} We find Lathan’s first assignment of error not well-taken.
26.
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-watson', which should be replaced with `[CITATION]`. B. Manifest Weight of the Evidence
{¶ 76} In his second assignment of error, Lathan argues that his conviction is
against the manifest weight of the evidence because the record clearly supported his
claim that he shot A.R. in self-defense.
{¶ 77} Under R.C. 2901.05(B)(1), “[a] person is allowed to act in self-defense . . .
.” A person may use deadly force in self-defense where he (1) was not at fault in creating
the situation giving rise to the affray; (2) had a bona fide belief that he was in imminent
danger of death or great bodily harm and that his only means of escape from such danger
was in the use of such force; and (3) did not violate any duty to retreat or avoid the
danger. [CITATION], quoting [CITATION]. “[T]he second element of self-defense is a combined subjective and
objective test.” [CITATION]. And under the most recent amendments to R.C. 2901.09(B), with respect to the third element, “a person has
no duty to retreat before using force in self-defense . . . if that person is in a place in
which the person lawfully has a right to be.” [CITATION].
{¶ 78} Self-defense is an affirmative defense—not an element of a crime.
[CITATION]. “R.C. 2901.05(B)(1) triggers the State’s duty to disprove self-defense
so long as ‘there is evidence presented that tends to support that the accused person used
the force in self-defense.’” [CITATION]. As such, “a
defendant charged with an offense involving the use of force has the burden of producing
27. legally sufficient evidence that the defendant’s use of force was in self-defense.” Id. at ¶
25. Where that duty is triggered, “a manifest-weight-of-the-evidence standard of review
applies to the state’s burden of persuasion.” Id. at ¶ 26.
{¶ 79} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. [CITATION]. We do not view the evidence in a light most favorable to the
state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of
the conflicting testimony.’” [CITATION], citing
[CITATION]. Reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” [CITATION],
quoting [CITATION].
{¶ 80} Lathan argues that the jury lost its way in rejecting his claim of self-
defense. First, he argues that he was not at fault for creating the situation. He went to
Spotlight that night not knowing that A.R. would be there. He emphasizes that A.R. put
his mask down, took a loaded gun out of his fanny pack, cocked the gun, and walked
closer to Lathan, thereby escalating the situation.
{¶ 81} Second, Lathan argues that he had a bona fide belief that he was in
imminent danger and needed to use force. He maintains that both the State and the
28. defense agreed that there was a “beef” between A.R. and Lathan, so much so that D.D.
claimed that A.R. felt compelled to leave and D.G. testified that he sensed tension.
Lathan testified about death threats made by A.R. in the rap video, on social media, and
to Lathan personally. Moreover, A.R. had a reputation for shooting people and the night
of the shooting, people in the parking lot told Lathan that A.R. was going to shoot up the
vehicle. Lathan wanted to leave Spotlight, but his car was blocked in because of the
traffic in the crowded parking lot. And A.R. walked directly towards Lathan, masked and
carrying a loaded gun. Lathan claimed that A.R. raised his gun in Lathan’s direction and
peeked back at him, causing Lathan to believe that he needed to shoot A.R. before A.R.
shot him, his friends, or his family. Lathan acknowledges that the fatal shot was fired
into A.R.’s back, but he argues that this does not diminish his claim of self-defense.
{¶ 82} Finally, Lathan insists that he had no duty to retreat because he was
lawfully entitled to be in the parking lot at Spotlight Lounge.
{¶ 83} The State responds that while Lathan and A.R. were not friends, there was
no evidence of any prior altercations between them. It emphasizes that A.R. was shot in
the back, not in the chest, and A.R. had a clear shot of Lathan when he walked to the
front of the car, but did not shoot when he had a better opportunity to do so. The State
also highlights the fact that Lathan led the police on a chase, reaching speeds of 98 miles
per hour, then fleeing on foot when he crashed into a rock. It insists that this is not the
exceptional case where the evidence weighs heavily against conviction. Rather, credible
evidence, including witness testimony and video exhibits, supports the jury’s verdict.
29. {¶ 84} Here, the jury had before it two versions of events. Under the State’s
version of events, Lathan went to Spotlight Lounge with a gun in his possession; A.R. did
not shoot Lathan despite having a clear shot at him; A.R. had his back to Lathan and was
shot in the left side of his back and in the back of his right leg, demonstrating that his
back was to Lathan; A.R. did not raise his gun to fire at Lathan; Lathan fled and led
police on a chase, at times driving 98 miles per hour; and Lathan stated in a jailhouse
phone call that he did not shoot A.R., undermining his claim of self-defense.
{¶ 85} Under Lathan’s version of events, he did not know that A.R. would be at
[SEGMENT 11]
Spotlight when he and his friends and brother decided to go there that night; A.R. created
a rap video months earlier threatening Lathan’s life; Lathan was aware that A.R. had shot
others and believed that A.R. would shoot him; Lathan feared A.R. and tried to leave
when he saw him at Spotlight, but was trapped in the line of cars in the crowded parking
lot; Lathan did not go to Spotlight with a gun, but an unknown person slipped a gun to
him; Lathan was warned that A.R. was about to shoot up his car; D.G. perceived the
tension when Lathan got to Spotlight; Lathan saw A.R.’s friends positioned with guns;
A.R. put a mask over his face, cocked his gun, walked toward A.R., lifted his gun, and
fired; A.R. was slanted toward Lathan when Lathan fired the gun and the shot was to
A.R.’s side, near his armpit, rather than to his back; Brown Hat, D.D., and A.R. signaled
to each other as part of a plan to shoot Lathan and his friends and brother; A.R. and
others fired guns in addition to those fired by Lathan and D.D.; and Lathan fled police not
30. because he had shot A.R., but because he had a weapon in his possession when he
believed he was legally prohibited from having one.
{¶ 86} In addition to the testimony from prosecutors and defense witnesses, video
recordings were provided for the jury. Those videos were subject to interpretation.
Excerpts were zoomed in or slowed down and did not necessarily reflect how the
participants and witnesses at the scene may have perceived the incident in real time.
Some camera angles may have supported Lathan’s description of the events, while other
angles seemed to support the State’s narrative. The jury considered all this evidence and
ultimately found the State’s version of events more credible. Although under a manifest-
weight standard we consider the credibility of witnesses, we must extend special
deference to the jury’s credibility determinations given that it is the jury who has the
benefit of seeing the witnesses testify, observing their facial expressions and body
language, hearing their voice inflections, and discerning qualities such as hesitancy,
equivocation, and candor. [CITATION]. Under the facts
and evidence presented in this case, we cannot conclude that the jury clearly lost its way
in resolving evidentiary conflicts in favor of the State, thereby rejecting Lathan’s claim of
self-defense.
{¶ 87} We find Lathan’s second assignment of error not well-taken.
C. Motion for New Trial
{¶ 88} On August 18, 2022, Lathan filed a motion for a new trial. He claimed that
he was entitled to a new trial because Juror #7 failed to disclose that he knew defense
31. counsel’s wife and had made advances toward her that were rejected, purportedly leading
him to hold bias toward Lathan. The trial court denied Lathan’s motion, finding that he
had failed to show that Juror #7 engaged in any misconduct. In his third assignment of
error, Lathan argues that the trial court erred when it denied his motion.
[CITATION] As previously summarized, defense counsel’s wife attended trial on the day
her husband presented Lathan’s defense. She left soon after realizing that she knew one
of the jurors, with whom she had worked sometime between 2011 and 2014. Defense
counsel called his wife before closing arguments to ask why she had left, and she told
him. They talked about it more when he got home. She told her husband that she
believed the juror was staring at her and it made her uncomfortable.
[CITATION] Around 5:00 p.m. the next day, the jury delivered its guilty verdict. About
an hour later, the juror messaged defense counsel’s wife and said it was good to see her
and that her husband had done a good job for his first trial. At that time, she viewed
previous messages from the juror. He had last messaged her four years earlier, in 2018,
seeking career advice. After she provided her advice, he asked her if she was accepting
boyfriend applications. Defense counsel’s wife did not respond to the comment about the
boyfriend applications, and she did not hear from him again until he sent the message
after the trial. Notably, defense counsel and his wife were not married or dating in 2018,
when the juror sent the message about boyfriend applications.
[CITATION] Thirteen days after the verdict was rendered, Lathan filed a motion for new
trial under Crim.R. 33, attaching affidavits from defense counsel and his wife. Lathan
[CITATION] did not specify which provision of Crim.R. 33 he was relying on, but he claimed that
because defense counsel was “the husband of the woman who rejected his advances,” the
juror held enmity or bias toward the defense. He claimed that he would have challenged
the juror for cause if he had known that the juror and defense counsel’s wife were
acquainted.
The court set the matter for hearing at which defense counsel testified. In a
judgment journalized on January 18, 2023, the court denied Lathan’s motion. It
interpreted the motion as a motion for new trial under Crim.R. 33(A)(2), which provides
for the possibility of a new trial on the basis of jury misconduct. It found that Lathan had
failed to show that there had been any misconduct by the juror because prospective jurors
had not been asked if they knew any family members of the attorneys, and defense
counsel conceded that he had no reason to believe that Juror #7 knew that counsel was
married to a woman he knew. Moreover, it observed that defense counsel must not have
been concerned that Juror #7 could not be fair and impartial because despite having been
told by his wife of her connection to Juror #7, he did not advise the court of any concern
despite opportunity to do so.
Although the trial court decided Lathan’s motion under Crim.R. 33(A)(2),
Lathan argues on appeal that he was entitled to a new trial under Crim.R. 33(A)(6), which
permits a trial court to grant a motion for new trial where the defendant has discovered
new evidence material to the defense which the defendant could not with reasonable
diligence have discovered and produced at the trial. He argues that the information about
33. the juror’s connection with defense counsel’s wife was new evidence that could not have
been produced before conviction because the juror “did not disclose the connection until
after the verdict was rendered.” Lathan claims that further investigation was needed to
determine if Juror #7 failed to disclose at voir dire his connection to defense counsel’s
wife. He maintains that the trial court should have allowed him to question Juror #7 and
the other jurors to determine whether their deliberations were affected by Juror #7’s
connection with defense counsel’s wife.
{¶ 94} “To warrant the granting of a motion for a new trial in a criminal case,
based on the ground of newly discovered evidence, it must be shown that the new
evidence (1) discloses a strong probability that it will change the result if a new trial is
granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of
due diligence have been discovered before the trial, (4) is material to the issues, (5) is not
merely cumulative to former evidence, and (6) does not merely impeach or contradict the
former evidence.” [CITATION]. “In reviewing
circumstances suggesting juror misconduct, an appellate court must conduct a two-tier
analysis: (1) determine whether there was juror misconduct and (2) if juror misconduct is
found, determine whether it materially affected the defendant’s substantial rights.” [CITATION]. Whether brought under Crim.R. 33(A)(2) or
(6), “an appellate court reviews the denial of a motion for a new trial for an abuse of
discretion.” [CITATION].
34. {¶ 95} As an initial matter, Juror #7’s possible connection to defense counsel is
not “evidence” material to the issues at trial. Accordingly, Lathan’s motion is properly
analyzed under Crim.R. 33(A)(2), not (A)(6).
{¶ 96} A juror’s concealment of information during voir dire may be deemed
misconduct, but to warrant a new trial, the defendant must demonstrate that the juror was
not impartial. [CITATION]. “A court may infer bias
if it finds deliberate concealment, however, if the concealment was unintentional, the
defendant must show that the juror was actually biased.” Id.
{¶ 97} Having reviewed the transcripts from voir dire and from the hearing on the
motion for new trial, we agree with the trial court that Juror #7 did not conceal
information during voir dire. The prospective jurors were not asked during voir dire if
they knew any of the attorneys’ family members. Moreover, defense counsel testified
that he asked his wife “would he know that I’m your husband,” and she said “probably
not.” To obtain a new trial in a case in which a juror has not disclosed information
during voir dire, the moving party must first demonstrate that a juror failed to answer
honestly a material question on voir dire . . . .” [CITATION],
[SEGMENT 12]
paragraph one of the syllabus. Here, Lathan cannot show that Juror #7 failed to provide
an honest answer to a material question.
{¶ 98} We also agree with the trial court that the timeline of events indicates that
defense counsel knew before the verdict that there existed a connection between his wife
and Juror #7, yet he waited to alert the trial court and examine the issue until after a
35. verdict was rendered. If there was a legitimate concern about Juror #7’s potential bias
against Lathan, it could have been raised when defense counsel’s wife told her husband
that she knew the juror and that the juror had stared at her, making her feel
uncomfortable. Upon being told by his wife that she and Juror #7 were acquainted, it was
incumbent on defense counsel to bring this to the court’s attention so that it could ensure
that deliberations would not be affected by Juror #7’s connection to defense counsel’s
wife. He failed to do so.
{¶ 99} Because Juror #7 did not conceal or provide dishonest information during
voir dire and defense counsel did not raise any concern with the trial court before the
verdict was rendered, we find that the trial court did not abuse its discretion in denying
Lathan’s motion for a new trial under Crim.R. 33(A)(2).
{¶ 100} We find Lathan’s third assignment of error not well-taken.
III. Conclusion
{¶ 101} Based on the record before us, we cannot say that the trial court abused its
discretion under Crim.R. 16 and 12.2 when it excluded from evidence a recording offered
by Lathan that was not disclosed until after the State rested its case. We find Lathan’s
first assignment of error not well-taken.
{¶ 102} The jury’s decision to reject Lathan’s claim of self-defense did not render
Lathan’s conviction against the manifest weight of the evidence. The jury did not clearly
lose its way in resolving credibility determinations in favor of the State. We find
Lathan’s second assignment of error not well-taken.
36. {¶ 103} Juror #7 did not fail to disclose information requested in voir dire;
prospective jurors were not asked if they knew any family members of the attorneys.
Additionally, defense counsel waited to raise concerns about the juror’s potential bias
until after the verdict was rendered, despite being aware before closing arguments that the
juror had a connection to his wife. The trial court properly denied Lathan’s motion for
new trial under Crim.R. 33(A)(2). We find Lathan’s third assignment of error not well-
taken.
{¶ 104} We affirm the January 20, 2023 judgment of the Lucas County Court of
Common Pleas. Lathan is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also [CITATION].
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
37.
[Cite as [CITATION].]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
: Case No. 2023CA00088
:
DEREK T. EDWARDS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2022CR2666
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 11, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KYLE L. STONE D. COLEMAN BOND
STARK CO. PROSECUTOR
Cleveland Ave. NW
CHRISTOPHER A. PIEKARSKI Suite 600
110 Central Plaza South, Ste. 510 Canton, OH 44702
Canton, OH 44702-1413 Stark County, Case No. 2023CA00088
Delaney, P.J.
{¶1} Appellant Derek T. Edwards appeals from the July 10, 2023 Judgment Entry
of the Stark County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on December 14, 2022, when appellant repeatedly stabbed
the victim, his Brother.
{¶3} Appellant is four years older than Brother and the two grew up together;
they have different fathers. As they got older, they became estranged for various reasons
including fighting over girlfriends. Once they fought with each other, with appellant
attempting to hit Brother with a rake and Brother pulling appellant out of a car and throwing
him on the ground. The two did not speak for some time following this fight.
{¶4} In December 2022, the two reconnected and Brother planned to stay at
appellant’s house for a few days. Appellant picked Brother up from their Mother’s house
and brought him home. Brother was recently divorced and hoping to help appellant
through a rough time when he was purportedly suicidal.
{¶5} All was not calm at appellant’s house, however. Brother complained that
appellant left him alone in the house overnight without a phone, tv, or internet connection.
The two later fixed Brother’s phone and then did drugs together, specifically
methamphetamine.
{¶6} Brother testified he and appellant used methamphetamine around noon or
1:00 p.m. on December 14, 2022. Afterward, appellant’s Girlfriend came over and fought
with appellant. The fight escalated to the point that Brother told appellant they needed to
leave the house because the situation was too stressful. Stark County, Case No. 2023CA00088
{¶7} Brother and appellant got into appellant’s car together, intending to drive to
Alliance, but appellant said he needed to stop in Canton first. As they drove, appellant
talked about fighting with Girlfriend, and Brother responded that appellant “beat all of his
girlfriends.” Brother testified appellant was enraged by this comment and threatened to
“beat [Brother’s] ass.” Brother denied striking or punching appellant. Brother then felt
something “tapping” on his side, and realized appellant was stabbing him repeatedly.
Brother tried to stop appellant but had no strength, and appellant said “Fucking die, bitch,”
and stabbed him in the chest. Brother testified he pulled the knife out of his own chest
and attempted to fight back but didn’t have the strength to do so.
{¶8} Brother saw blood all over the interior of the car and “played dead” by
slumping over in his seat. He thought he was about to die. He felt appellant going through
the pockets of his hoodie as he was slumped in the car, and his possessions including
his phone, medical and ID cards, and medication were never found. Brother speculated
appellant threw them out of the vehicle.
{¶9} Appellant drove to Mercy Hospital as Brother continued to “play dead.” The
car stopped and appellant got out. Brother got out of the car and tried to run, but collapsed
after two steps.
{¶10} Brother testified he felt excruciating pain in the hospital parking lot, and he
was aware of people running to help him. He recalls being rolled into the hospital and
doctors working on him. He thought he was going to die that night, but woke up the next
morning surprised and glad to be alive. Stark County, Case No. 2023CA00088
{¶11} Brother was interviewed by Canton police in the hospital, where he
remained for six days. His injuries still required ongoing treatment at the time of trial.
Brother has not spoken to appellant since the night of the stabbing.
{¶12} On cross examination, Brother acknowledged he has mental health issues
and stopped taking his medication in September 2022. He acknowledged that on the day
of the stabbing, he and appellant did drugs together including methamphetamine; he
denied use of heroin or opiates, despite medical records indicating he tested positive for
opioids.
{¶13} On the evening of December 14, 2022, Canton police received a report of
a possible shooting victim at Mercy Medical Center. Patrol units responded and Detective
Vincent Romanin was assigned to investigate. Romanin learned the victim was not shot
but sustained multiple stab wounds. Detectives gathered information at Mercy Medical
Center including a surveillance video which showed a white Chrysler Aspen pull up to the
hospital. The victim exited the passenger door of the Aspen and immediately collapsed
[SEGMENT 13]
on the ground. The driver of the vehicle got out and stood over the victim for several
moments, then got back in the vehicle and fled. Detectives learned Brother was the
stabbing victim and found contact information for Brother’s wife.
{¶14} After contacting Brother’s estranged wife, detectives investigated appellant
as a potential suspect and found two addresses for him. At the first address, a white
Chrysler Aspen was parked in the driveway. Romanin requested additional units to
respond and police surrounded the residence. When Romanin approached the white
Aspen, he observed a significant amount of blood in the passenger compartment. No
one responded at the residence but a neighbor confirmed appellant lived there. Another Stark County, Case No. 2023CA00088
neighbor stated a white Jeep left the residence one to two hours before police arrived.
Detectives sought, obtained, and executed search warrants for the white Aspen and the
residence.
{¶15} The search of the Aspen revealed drying, flaking fresh blood on the
passenger seat, center console, steering wheel, and gauges. Blood was spattered across
the front of the vehicle. Police searched the residence and found knives, but none that
were used in the stabbing.
{¶16} Detectives interviewed appellant seven days after the stabbing and a
redacted video of the interview was played at trial. He said he was previously in fights
with Brother and sustained significant injuries, causing him to fear for his life. Appellant
claimed in the incident on December 14, Brother attacked him in the vehicle as they drove,
putting appellant in fear. Appellant claimed he grabbed a small pocketknife and used it
in self-defense to protect himself. Appellant claimed that as Brother continued to attack
him, Brother fell on the knife, and when he realized Brother had been stabbed, he sped
to Mercy Medical Center at a high rate of speed. Detectives interviewing appellant did
not believe his version of events and questioned him about the lengthy route he took to
get to the hospital. Appellant admittedly stated, “That’s what the fuck you get” as he stood
over Brother’s slumped body in the hospital parking lot.
{¶17} Appellant showed detectives injures he allegedly sustained in Brother’s
attack, but detectives did not find the injuries to be consistent with appellant’s story.
Appellant had no defensive wounds and had superficial injuries at best, including a
scratched lip. Detectives did not see lumps on appellant’s head, swelling on his face or
cheek, or a mark on his ear, despite his allegations about where Brother struck him. Stark County, Case No. 2023CA00088
{¶18} Appellee introduced photos of Brother’s stab wounds. A detective also
found the knife used by appellant because appellant showed him where he threw it into
the grass at Mercy Medical Center. Appellant said he threw the knife because he was
scared and didn’t know what to do with it.
{¶19} Appellant testified in his own defense, stating he had a difficult relationship
with Brother for many years and Brother has assaulted him in the past, breaking his ribs.
Appellant pointed out Brother is physically larger than him and said their relationship was
estranged in the past due to Brother’s violence toward him.
{¶20} Brother was stopping in at Mother’s house and encountered appellant
several times, leading them to rekindle the relationship. Appellant said Brother came to
stay at his house for a few days, but a problem arose when appellant fell asleep at a
friend’s house, leaving Brother overnight with no phone, tv, or internet access. When he
returned to the house, appellant apologized to Brother, but Brother was high on
methamphetamine and very agitated. Appellant’s Girlfriend came to the house and they
argued, so Brother asked to leave.
{¶21} Appellant testified he told Brother he would drive him to Alliance, but he
needed to pick up a friend in Canton first. Appellant testified that as the car approached
the intersection of 12th Street and McKinley, Brother became irate due to an issue with
his phone; appellant said Brother was “tweaking hard.” Appellant testified that as he
turned onto McKinley, Brother struck him in the face, splitting his lip; Brother continued to
strike appellant in the head and face, and slammed his head into the steering wheel, in
an attempt to wreck appellant’s truck. Stark County, Case No. 2023CA00088
{¶22} Appellant claimed he believed Brother was going to kill him, so he stabbed
Brother in self-defense. The stabbing did not stop Brother’s attack, however, and Brother
continued to hit appellant. Appellant then continued to stab Brother until the hitting
stopped, and appellant realized the extent of Brother’s injuries. Appellant testified he
realized he needed to get Brother to the hospital immediately, and drove to Mercy Medical
Center at 100 miles per hour, taking Walnut Road to Route 62 to Interstate 77.
{¶23} Appellant said he pulled into the hospital and Brother fell out of the car.
Appellant motioned to a hospital worker for help, then left the scene. Appellant testified
he fled because he believed he killed Brother and thought he would get the death penalty.
Appellant testified he was not trying to kill Brother and only wanted to stop the attack. He
said he sustained a black eye and knots on his face and neck due to Brother’s attack.
Appellant said he suffered a previous hand injury which prevents him from fighting: his
hand was cut off then reattached after a work accident. Appellant testified he struggles
to use the hand and cannot pick up a gallon of milk after the injury.
{¶24} Appellant’s mother and stepfather arrived at the hospital because he called
them and told them to check on Brother.
Indictment, trial, conviction, and sentence
{¶25} Appellant was charged by indictment with one count of attempted murder
pursuant to R.C. 2923.02(A), (B), and (D), a felony of the first degree [Count I]; one count
of felonious assault pursuant to R.C. 2903.11(A)(D)(1)(a), a felony of the second degree
[Count II]; one count of kidnapping pursuant to R.C. 2905.01(A)(2)(3)(C)(1), a felony of
the first degree [Count III]; and one count of tampering with evidence pursuant to R.C.
2921.12(A)(1)(B), a felony of the third degree [Count IV]. Stark County, Case No. 2023CA00088
{¶26} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. Appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) at the close
of appellee’s evidence and at the close of all of the evidence; the motions were overruled.
The trial court instructed the jury upon self-defense relative to Counts I and II. Appellant
was found guilty upon Counts I, II, and IV, and not guilty upon Count III. The trial court
sentenced appellant to a total aggregate prison term of 8 to 12 years.
{¶27} Appellant now appeals from the judgment entry of his convictions and
sentence.
{¶28} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶29} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST APPELLANT, AND THE CONVICTION MUST BE
REVERSED.”
{¶30} “II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”
ANALYSIS
I., II.
{¶31} Appellant’s first and second assignments of error are related and will be
considered together. Appellant argues his convictions are against the manifest weight
and sufficiency of the evidence. We disagree.
{¶32} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. [CITATION]. The standard of review Stark County, Case No. 2023CA00088
for a challenge to the sufficiency of the evidence is set forth in [CITATION] at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶33} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” [CITATION] Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
Self-defense
{¶34} Appellant first argues his convictions for attempted murder and felonious
[SEGMENT 14]
assault are against the manifest weight of the evidence because appellee failed to prove
he did not act in self-defense. Appellee's burden of disproving the defendant's self-
defense claim beyond a reasonable doubt is subject to a manifest-weight review on
appeal. [CITATION] ¶ 74, citing Stark County, Case No. 2023CA00088
[CITATION], ¶ 27. As to
the weight of the evidence, the issue is whether the jury created a manifest miscarriage
of justice in resolving conflicting evidence, even though the evidence of guilt was legally
sufficient. [CITATION],
superseded by constitutional amendment on other grounds.
{¶35} “Weight of the evidence” addresses the evidence's effect of inducing belief.
[CITATION]. When a court of appeals reverses
a judgment of a trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder's
resolution of the conflicting testimony. [CITATION], citing [CITATION]
31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982).
{¶36} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” [CITATION], quoting [CITATION]
(1st Dist. 1983).
{¶37} Appellant challenges his conviction upon one count of attempted murder
pursuant to R.C. 2923.02(A) and 2903.03(A) and (B), which provide:
.02(A): No person, purposely or knowingly, and when
purpose or knowledge is sufficient culpability for the commission of
an offense, shall engage in conduct that, if successful, would
constitute or result in the offense. Stark County, Case No. 2023CA00088
.03(A)(B):
(A) No person shall purposely cause the death of another or
the unlawful termination of another's pregnancy.
(B) No person shall cause the death of another as a proximate
result of the offender's committing or attempting to commit an offense
of violence that is a felony of the first or second degree and that is
not a violation of section 2903.03 or 2903.04 of the Revised Code.
{¶38} Appellant also challenges his conviction upon one count of felonious assault
pursuant to R.C. 2903.11(A), which states:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's
unborn;
(2) Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous
ordnance.
{¶39} When an accused asserts the defense of self-defense, he does not seek to
negate any of the elements of the offense which appellee is required to prove. Self-
defense is an admission of the prohibited conduct coupled with a claim that the
surrounding facts or circumstances exempt the accused from liability therefor—
“justification for admitted conduct.” [CITATION], ¶ 80, citing [CITATION].
{¶40} R.C. 2901.05(B)(1) provides as follows regarding self-defense: Stark County, Case No. 2023CA00088
(B)(1) A person is allowed to act in self-defense, defense of
another, or defense of that person's residence. If, at the trial of a
person who is accused of an offense that involved the person's use
of force against another, there is evidence presented that tends to
support that the accused person used the force in self-defense,
defense of another, or defense of that person's residence, the
prosecution must prove beyond a reasonable doubt that the accused
person did not use the force in self-defense, defense of another, or
defense of that person's residence, as the case may be.
{¶41} Under R.C. 2901.05(B)(1), therefore, there are two burdens. [CITATION]. The defendant
has the initial burden of production, which is the burden of producing evidence “that tends
to support” that the defendant used the force in self-defense. [CITATION]. The burden then shifts to appellee
under its burden of persuasion to prove beyond a reasonable doubt that the defendant
did not use the force in self-defense. Id. at ¶ 24. In other words, if the evidence tends to
support that the defendant acted in self-defense, then the prosecution must prove beyond
a reasonable doubt that the defendant did not act in self-defense. R.C. 2901.05(B)(1); Id.
at ¶ 26. Appellee need only disprove one of the elements of self-defense beyond a
reasonable doubt at trial to sustain its burden. [CITATION].
{¶42} In the instant case, at the close of appellant's jury trial, the trial court
provided the jury with an instruction regarding self-defense, which means that the trial Stark County, Case No. 2023CA00088
court concluded that the record contained evidence that tends to support that appellant
used the force in self-defense when he stabbed Brother. R.C. 2901.05(B)(1); [CITATION],
supra, ¶ 26. The guilty verdict means appellee met its burden of persuading the jury
beyond a reasonable doubt that appellant was not acting in self-defense when he stabbed
Brother. Id.
{¶43} When deadly force is used, the elements of self-defense that appellee must
now disprove at least one of are: (1) appellant was not at fault in creating the situation
giving rise to the affray, (2) appellant had reasonable grounds to believe and an honest
belief even if mistaken that he was in imminent danger of death or great bodily harm and
that he did not use more force than necessary to defend against the attack, and (3)
appellant must not have violated any duty to retreat or avoid the danger. [CITATION],
2023-Ohio-3137, ¶ 84, citing [CITATION], 58 Ohio St.2d 74, 79, 388 N.E.2d 755
(1979).
{¶44} As to the third element of self-defense, “a person has no duty to retreat
before using self-defense * * * if that person is in a place in which the person lawfully has
a right to be.” R.C. 2901.09(B); [CITATION], supra, ¶ 10. “Simply put, the new ‘stand your
ground’ law removes, in most cases, the duty to retreat before using self-defense.”
[CITATION], ¶ 85, citing [CITATION], 5th Dist. Stark No 2021 CA 00124, 2023-
Ohio-5, 205 N.E.3d 633, ¶ 51.
{¶45} The second element of self-defense “is a combined subjective and objective
test.” [CITATION], 77 Ohio St.3d 323, 330, 673 N.E.2d 1339 (1997). The person's
belief must be objectively reasonable under the circumstances and he must subjectively
believe he needed to resort to force to defend himself or the other person. Id. at 330–331. Stark County, Case No. 2023CA00088
{¶46} “The objective part of the test requires consideration of ‘whether,
considering all of the defendant's particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack,’ a reasonable
person would believe that danger was imminent.” Watson, supra, [CITATION],
internal citations omitted. The subjective part requires consideration of whether the
defendant himself actually believed that he was in imminent danger. Id.
{¶47} Here, the evidence does not support appellant’s contention that he
possessed the necessary objective and subjective beliefs he was in imminent or
immediate danger of death or great bodily harm. Appellant acknowledges his own
testimony conflicted with Brother’s, and claims Brother “struck him in the face and head
several times and tried to bury his head in the steering wheel of the car he was operating.”
Brief, 16. Moreover, Brother had ingested drugs and Brother had attacked appellant in
the past, thus appellant was in justified fear of Brother. Generally, neither words alone
nor fear itself will constitute evidence of serious provocation. “[W]ords alone will not
constitute reasonably sufficient provocation to incite the use of deadly force in most
situations.” [CITATION]. Fear alone is insufficient to demonstrate the kind of emotional state necessary to constitute
sudden passion or fit of rage. [CITATION].
{¶48} Even if we believe appellant’s self-serving testimony that Brother struck
appellant repeatedly as he drove, Brother’s conduct does not justify appellant’s decision
to inflict multiple stab wounds. A victim's simple pushing or punching does not constitute
sufficient provocation to incite the use of deadly force in most situations. See, [CITATION].
====== End of Court Ruling ====== Stark County, Case No. 2023CA00088
{¶49} Implicit in the second element of self-defense is the requirement that the
[SEGMENT 15]
degree of force used was warranted under the circumstances and proportionate to the
perceived threat. Watson, supra, [CITATION], ¶ 88, citing [CITATION]. As to the degree of force that is permitted,
the defendant is privileged to use the amount of force that is reasonably necessary to
repel the attack. [CITATION].
{¶50} Again, even if we were to accept appellant’s statements as true, Brother
punched and struck appellant with his fists; appellant fails to explain why he didn’t stop
the car and call police instead of pulling a knife and stabbing Brother repeatedly. Nothing
in appellant’s testimony describes an attack by Brother that would justify the viciousness
of appellant’s response. If appellant's fear was only of physical harm, he was allowed by
law only to use an amount of force that was warranted under the circumstances and
proportionate to the perceived threat. Watson, supra, [CITATION], ¶ 89. Appellant's
decision to stab Brother repeatedly was deadly force and was disproportionate to the
threat he faced under these circumstances. Id.
{¶51} While appellant was free to argue that he was justified in using deadly force,
and the trial court instructed the jury accordingly, the jury may have reasonably chosen
to reject his argument. Upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which appellant was convicted. We further find there is substantial evidence
proving beyond a reasonable doubt that appellant was not acting in self-defense when he
stabbed Brother and the degree of force used by appellant was unwarranted under the
circumstances and disproportionate to the perceived threat. Therefore, in light of the Stark County, Case No. 2023CA00088
evidence discussed above, as well as the record in its entirety, we do not find the jury
clearly lost its way in finding appellant guilty of attempted murder and felonious assault
and that appellant was not acting in self-defense. We do not find that the jury disregarded
or overlooked compelling evidence that weighed against conviction.
Manifest weight and sufficiency: intent
{¶52} Next, appellant argues he didn’t intent to kill Brother as evidenced by his
decision to take him to the hospital. We note the evidence established appellant
essentially dumped Brother at the hospital and fled; we fail to discern, and appellant does
not explain, how these actions repudiate his criminal intent when he stabbed Brother
repeatedly. Under Ohio law, the trier of fact may infer an intention to kill from the
surrounding circumstances where the natural and probable consequence of a defendant's
actions is to produce death. [CITATION], ¶ 65, citing [CITATION], internal citation omitted. Appellant admittedly stood over Brother and said,
“That’s what the fuck you get,” which directly contradicts his claim he was worried about
Brother’s survival at the hospital.
{¶53} Upon our review of the record and transcript in a light most favorable to
appellee, we find that a reasonable finder of fact could have found beyond a reasonable
doubt that appellant purposely attempted to cause Brother’s death by repeatedly stabbing
him inside the vehicle. Id., ¶ 66. Intent to kill a victim may be inferred from the use of a
knife to stab the victim multiple times, from which evidence the jury could conclude
appellant acted purposely with the specific intention of causing the victim’s death. See, Stark County, Case No. 2023CA00088
[CITATION]
Manifest weight and sufficiency: tampering with evidence
{¶54} Finally, appellant argues there is insufficient evidence he committed the
offense of tampering with evidence because although he threw the knife into the grass at
Mercy Medical Center, he later revealed its location to investigators. Appellant was
charged with one count of tampering with evidence pursuant to R.C. 2921.12(A)(1), which
states, “no person, knowing that an official proceeding or investigation is in progress, or
is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any
record, document, or thing, with purpose to impair its value or availability as evidence in
such proceeding or investigation.”
{¶55} In the instant case, appellee produced evidence appellant discarded the
knife in the grass because he knew an investigation into the stabbing was likely; he told
police in his interview he was scared and didn’t know what to do, and “just wanted to get
rid of” the knife. Appellant was admittedly acting with the belief he likely killed Brother
and feared the potential penalty of life in prison or the death penalty.
{¶56} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness's credibility. Indeed, the trier of
fact need not believe all of a witness' testimony, but may accept only portions of it as true.
[CITATION] Stark County, Case No. 2023CA00088
{¶57} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” [CITATION], quoting [CITATION]. The jury
neither lost his way nor created a miscarriage of justice in convicting appellant. Based
upon the foregoing and the entire record in this matter, we find appellant's convictions are
not against the manifest weight of the evidence. To the contrary, the jury appears to have
fairly and impartially decided the matter. The jury heard the witnesses, evaluated the
evidence, and was convinced of appellant's guilt.
{¶58} Our review of the entire record reveals no significant inconsistencies or
other conflicts in appellee’s evidence which would demonstrate a lack of credibility of the
witnesses sufficient to find the jury lost its way to finding appellant guilty. [CITATION], ¶ 49.
{¶59} Appellant’s first and second assignments of error are overruled. Stark County, Case No. 2023CA00088
CONCLUSION
{¶60} Appellant’s two assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Baldwin, J. and
King, J., concur.
[Cite as [CITATION].]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Andrew J. King, J.
:
-vs- :
: Case No. 2023 CA 0046
CLAUDE K. KNIPP :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 22CR810 R
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 4, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JODIE SCHUMACHER WILLIAM T. CRAMER
Prosecuting Attorney
Olde Worthington Road
BY: MEGAN HOBART Suite 200
Assistant Prosecutor Westerville, OH 43082
38 South Park Street, Second Floor
Mansfield, OH 44902 [Cite as [CITATION].]
Gwin, P.J.
{¶1} In November 2022, defendant-appellant Claude Kerry Knipp [“Knipp”] drove
his Jeep into his nephew, severely breaking the nephew’s leg. Knipp argued that he was
acting in self-defense. A jury rejected Knipp’s self-defense claim and found Knipp guilty
of two counts of felonious assault, the first under R.C. 2903.11(A)(2), for using a deadly
weapon, namely a motor vehicle, and the second under R.C. 2903.11(A)(1), for causing
serious physical harm. The issue presented in this appeal is whether the jury clearly lost
their way and created such a manifest miscarriage of justice by rejecting his self-defense
claim that his convictions must be reversed and a new trial ordered. We conclude they
did not because under the facts presented Knipp’s act of deliberately changing direction
so that he could hit the unarmed victim was unwarranted under the circumstances and
disproportionate to the perceived threat. Therefore, we affirm the judgment of the
Richland County Court of Common Pleas.
Facts and Procedural History
Sixty-Eight-Year-Old Knipp And His Forty-Eight-Year-Old Nephew Joshua
Have a Falling Out
{¶2} When Knipp moved to St. Louis, Missouri, he took his nephew with
him to attempt to be his mentor. [CITATION]. Things began to sour between
the pair when Joshua was arrested in St. Louis for statutory rape. [CITATION].
Joshua was not convicted of a crime. Knipp testified that his fiancé
agreed not to press charges and Joshua was told to leave Missouri and never
return. [CITATION]. Joshua left St. Louis shortly after that, however, Knipp Richland County, Case No. 2023 CA 0046
remained in St. Louis until he retired from his job as a driver of a concrete truck.
[CITATION]. He then moved back to Mansfield around 2016 - 2017. [CITATION].
[SEGMENT 16]
Joshua Beats Knipp to a Pulp
{¶3} Joshua has two sons, ages eleven and thirteen. Joshua has had sole
custody of them since 2015. [CITATION]. Joshua had been told that Knipp was having
relations with the mother of Joshua’s children and was attempting to interfere with
Joshua’s attempt to gain custody of them. [CITATION].
{¶4} Joshua was granted a restraining order against Knipp that expired in
September 2020. [CITATION]. On April 23, 2020, Knipp drove past Joshua’s
home on his way to pick-up a friend to go out to breakfast. [CITATION]. Joshua
came outside cursing and threatening Knipp. Joshua hurled bricks at Knipp’s
vehicle. [CITATION]. The pair began to argue and threaten each other. [CITATION].
The verbal sparring descended into a physical fight that resulted in
Joshua hitting Knipp in the face with a brick. [CITATION]. The resulting injury
caused serious, permanent damage to Knipp’s right eye. [CITATION]. Knipp
was charged with violating the restraining order as a result of this confrontation.
[CITATION]. Joshua admitted that he beat Knipp to a pulp that day. [CITATION].
Joshua denied injuring or even knowing about Knipp’s injury, claiming instead
that his grandmother told him that Knipp’s eye was injured as a result of a
childhood injury involving an exploding golf ball. [CITATION].
The Incident and Its Aftermath
{¶5} On November 5, 2022, Joshua woke up early and drove to the Corner
Market by himself to get some items for breakfast. [CITATION]. Knipp followed his morning Richland County, Case No. 2023 CA 0046
routine and drove to the Corner Market to get coffee and lottery tickets. [CITATION] at 428.
Surveillance video from the store showed Knipp’s vehicle pulling in as Joshua was exiting
the store. [CITATION] at 230. Knipp never gets out of his vehicle; however, he rolls down the
window. Upon seeing one another, the pair begin to exchange insults and threats. Knipp
claimed that he had been told in the past that Joshua had been telling people that he had
a bullet with Knipp’s name on it. [CITATION] at 429; 446. Knipp testified that he last saw Joshua
with a gun four or five years ago. Id. at 477- 478. It was a small revolver that Joshua hid
in his crotch. Id. Knipp testified that Joshua was threatening his life, the lives of his
grandchildren and further, was threatening to take his other eye.
{¶6} Knipp testified that Joshua got into his vehicle and got back out several
times. [CITATION] at 430. When Knipp saw Joshua get into his vehicle he believed that Joshua
was going to retrieve a gun. Id. at 435; 472. Knipp testified that he was so afraid he nearly
urinated his pants. Id. at 434; 448. Knipp admitted that he never saw Joshua with a gun,
or any type of weapon in his hands during the encounter. Id. at 445-446; 449 - 450; 453;
460; 470. However, Knipp testified that Joshua could have had a gun concealed in his
crotch. Id. at 460- 461.
{¶7} Knipp admitted that he hit Joshua with his Jeep. [CITATION] at 442. Knipp stated he
felt he had to attempt to “knock him [Joshua] on his ass so I could get out of there safely.”
[CITATION] at 442. Knipp believed that if he did not “take him out on his ass” it would be Knipp’s
last day on earth. Id. at 457. Knipp admitted that Joshua never charged his vehicle before
Knipp drove into him. Id. at 456 - 457. Knipp admitted that Joshua was moving to the left
of Knipp’s Jeep when Knipp turned his wheels to the left and drove into him. Id. at 458-
459. Knipp admitted that he could have driven to his left, gone straight or backed up and Richland County, Case No. 2023 CA 0046
exited the parking lot instead of hitting Joshua. [CITATION] Knipp admitted telling a
bystander that Joshua was a child molester before driving away. Id. at 462-465.
{¶8} Because the surveillance videos the store provided to the police were of
such a poor quality, Deputy Logan Dilley of the Mansfield Sherriff’s Office took the
department’s county-issued digital camera back to the store and recorded the footage off
the store’s video monitor. [CITATION] However, Deputy Dilley recorded only
the portion of the video showing Knipp’s Jeep hitting Joshua. Id. at 298; 334; 338 - 339.
Surveillance video from the scene showed Joshua moving to his right and Knipp’s Jeep
turn toward Joshua before striking him. [CITATION] Joshua’s leg was broken. He
required surgery to place ten pins and 118 staples. [CITATION]
{¶9} A bystander followed Knipp home; however, when deputies went to the
residence Knipp was not at home. Later that night they issued an arrest warrant. Knipp
was arrested several days later at his house. [CITATION]
{¶10} At the close of evidence, the jury was instructed on self-defense. During
deliberations the jury asked for an explanation of what it means to have an honest "even
if mistaken" belief in the need to act in self-defense. [CITATION] The judge referred the
jury to the plain meaning of the words. The jury also asked, "If words alone do not justify
the use of force, what does? Physical touch, gestures, etc.?" The judge referred the jury
back to the jury instructions. Id. at 616. The jury also asked for the difference between
"imminent" and "immediate". Id. at 620. The judge provided the jury with dictionary
definitions of each term. Id. at 620-632. After further deliberation, the jurors found Knipp
guilty on both counts. Richland County, Case No. 2023 CA 0046
{¶11} At sentencing on August 3, 2023, the parties agreed that the two counts
merged and the state elected to proceed on Count Two felonious assault, causing serious
physical harm. Sent. T., Aug. 1, 2023 at 640. Knipp was sentenced to five to seven and
a half years imprisonment. Knipp was also sentenced to 18 months to three years of post-
release control and $75,000 restitution. Six days of jail time credit was ordered to be
applied to the sentence.
{¶12} A restitution hearing was held on September 13, 2023. The judge noted that
Joshua testified and admitted three exhibits in his quest to receive lost wages as
restitution. The trial judge found that Joshua was not working at the time of the incident
and had not worked in the fourteen months before the incident. The trial judge further
found that Joshua did not offer any evidence other than his own self-serving testimony
that he was planning to go back to work in November of 2023. The trial judge found that
Joshua did not meet his burden to prove lost wages to a reasonable degree of certainty.
The trial judge found therefore, that Joshua was not owed restitution by Knipp. The trial
judge vacated the previous order of August 3, 2023 awarding Joshua $75,000.00 in
restitution.
Assignment of Error
{¶13} Knipp raises one Assignment of Error,
{¶14} “I. THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT A FINDING
THAT THE STATE DISPROVED SELF-DEFENSE BEYOND A REASONABLE DOUBT.
Standard of Review
{¶15} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the Richland County, Case No. 2023 CA 0046
evidence of guilt was legally sufficient. [CITATION]
{¶16} Weight of the evidence addresses the evidence's effect of inducing belief. [CITATION] When a court of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as a “thirteenth juror”
and disagrees with the fact finder’s resolution of the conflicting testimony. [CITATION] (quotation marks omitted); [CITATION]
{¶17} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” [CITATION] quoting [CITATION]. The Ohio Supreme Court has
emphasized: “‘[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment and every reasonable presumption
must be made in favor of the judgment and the finding of facts. * * *.’” [CITATION] quoting [CITATION] quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at 191–
[SEGMENT 17]
192 (1978). The central question is whether “there is substantial evidence upon which a
jury could reasonably conclude that all the elements have been proved beyond a
reasonable doubt.” (Emphasis sic.) [CITATION] Richland County, Case No. 2023 CA 0046
citing [CITATION], syllabus, superseded by constitutional
amendment on other grounds as stated in [CITATION].
{¶18} Further, to reverse a jury verdict as being against the manifest weight of the
evidence, a unanimous concurrence of all three judges on the court of appeals panel
reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio
Constitution. [CITATION], citing Thompkins at
paragraph four of the syllabus.
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the convictions must be reversed and a new
trial ordered
Self-defense
{¶19} When an accused asserts the defense of self-defense he does not seek to
negate any of the elements of the offense which the state is required to prove. Self-
defense is not merely a denial or contradiction of evidence offered by the state to prove
the essential elements of the charged crime. Rather, it is an admission of the prohibited
conduct coupled with a claim that the surrounding facts or circumstances exempt the
accused from liability therefor— “justification for admitted conduct.” [CITATION].
{¶20} In order to determine the respective duties with respect to a self-defense
claim, we must turn to R.C. 2901.05(B)(1),
(B)(1) A person is allowed to act in self-defense, defense of another,
or defense of that person’s residence. If, at the trial of a person who is
====== End of Processed Court Ruling ====== Richland County, Case No. 2023 CA 0046
accused of an offense that involved the person’s use of force against
another, there is evidence presented that tends to support that the accused
person used the force in self-defense, defense of another, or defense of
that person’s residence, the prosecution must prove beyond a reasonable
doubt that the accused person did not use the force in self-defense, defense
of another, or defense of that person’s residence, as the case may be.
{¶21} Under R.C. 2901.05(B)(1) there are two burdens. [CITATION], ¶ 49 (5th Dist.).
The defendant has the initial burden of production, which is the burden of producing
evidence “that tends to support” that the defendant used the force in self-defense. [CITATION],
¶ 21. The burden then shifts to the state under its burden
of persuasion to prove beyond a reasonable doubt that the defendant did not use the
force in self-defense. Id. at ¶ 24. In other words, if the evidence tends to support that the
defendant acted in self-defense, then the prosecution must prove beyond a reasonable
doubt that the defendant did not act in self-defense. R.C. 2901.05(B)(1); Id. at ¶26;
[CITATION], at ¶49; [CITATION], ¶ 68. The state need only
disprove one of the elements of self-defense beyond a reasonable doubt at trial to sustain
its burden. [CITATION] at ¶49. [CITATION], ¶28 (5th Dist.).
{¶22} At the close of Knipp’s jury trial, the trial judge provided the jury with an
instruction regarding self-defense, which means that the trial judge concluded that
the record contained evidence that tends to support that Knipp used the force in self-
defense when he struck Joshua. R.C. 2901.05(B)(1). [CITATION],
====== End of Part ====== Richland County, Case No. 2023 CA 0046
4462 at ¶ 26. The guilty verdict means that the state met its burden of persuading the
jury beyond a reasonable doubt that Knipp was not acting in self-defense when he
struck Joshua. Id.
{¶23} When deadly force is used, the elements of self-defense that the state must
now disprove at least one of are: (1) Knipp was not at fault in creating the situation giving
rise to the affray, (2) Knipp had reasonable grounds to believe and an honest belief even
if mistaken that he was in imminent danger of death or great bodily harm and that he did
not use more force than necessary to defend against the attack and (3) Knipp must not
have violated any duty to retreat or avoid the danger. [CITATION]; See also, [CITATION].
{¶24} As to the third element of self-defense, we note that the trial judge instructed
the jury in accordance with the recently amended “stand your ground” law in Ohio. 4T. at
539. That law now indicates that “a person has no duty to retreat before using self-
defense. . .if that person is in a place in which the person lawfully has a right to be.” R.C.
2901.09(B); [CITATION]. “‘Simply put, the new ‘stand your ground’ law removes, in most cases, the duty to retreat before using self-defense.’” [CITATION].
{¶25} The second element of self-defense “is a combined subjective and objective
test.” [CITATION]. The person’s belief must be Richland County, Case No. 2023 CA 0046
objectively reasonable under the circumstances and he must subjectively believe he
needed to resort to force to defend himself or the other person. Id. at 330–331.
“The objective part of the test requires consideration of ‘whether,
considering all of the defendant’s particular characteristics, knowledge, or
lack of knowledge, circumstances, history, and conditions at the time of the
attack,’ a reasonable person would believe that danger was imminent.”
[CITATION]
The subjective part requires consideration of whether the
defendant himself actually believed that he was in imminent danger. Id.
[CITATION]
The State Proved Beyond a Reasonable Doubt that Knipp Did Not Use the
Force in Self-defense
{¶26} Here, the evidence does not support that Knipp possessed the necessary
objective and subjective beliefs he was in imminent or immediate danger of death or great
bodily harm. Generally, neither words alone nor fear itself will constitute evidence of
serious provocation. "[W]ords alone will not constitute reasonably sufficient provocation
to incite the use of deadly force in most situations." [CITATION].
Fear alone is insufficient to demonstrate the kind of emotional state
necessary to constitute sudden passion or fit of rage. [CITATION]. Cases have held that a victim's simple pushing or punching does not
====== End of Document ====== Richland County, Case No. 2023 CA 0046
constitute sufficient provocation to incite the use of deadly force in most situations. See,
[CITATION] (concluding that sufficient provocation did not
exist when the victim grabbed the defendant by the testicles and the arm); [CITATION]
(concluding that the victim's conduct in approaching the
defendant with a hammer and stating "come on" did not constitute sufficient provocation).
[CITATION] ("We find that a mere shove and
a swing (which appellant by his own testimony ducked) are insufficient as a matter of law
to constitute serious provocation reasonably sufficient to incite or arouse appellant into
using deadly force."). Although stated in terms of provocation, we find the same analysis
would apply to whether a defendant, by reason of the actions of the victim, possessed the
necessary objective and subjective beliefs he was in imminent or immediate danger of
death or great bodily harm. [CITATION].
{¶27} Implicit in the second element of self-defense is the requirement that the
degree of force used was warranted under the circumstances and proportionate to the
perceived threat. [CITATION]. As to the degree of
force that is permitted, the defendant is privileged to use the amount of force that is
reasonably necessary to repel the attack. [CITATION]. In
other words, one may use a commensurate amount of force as the circumstances require
to protect oneself against an attack. [CITATION].
{¶28} Knipp testified to only verbal threats made by Joshua during the November
5, 2022 incident prior to Knipp’s use of deadly force. The video evidence shows Joshua
====== End of Part ====== Richland County, Case No. 2023 CA 0046
was moving away from Knipp’s vehicle, when Knipp turns his vehicle in Joshua’s direction
before striking him. Knipp admitted Joshua did not charge Knipp and that Joshua was not
within arm’s reach of Knipp. Knipp remained inside his vehicle throughout the encounter.
{¶29} Even setting aside the question of who the aggressor was, Knipp testified
that he did not see Joshua with any sort of weapon in his hands at any time during the
altercation. Knipp further admitted that nothing prevented him from choosing any of the
several alternative means available to him to have exited the parking lot instead of striking
Joshua. Although Knipp had no duty to retreat, he likewise could not turn his vehicle to
deliberately run into an individual that was moving away from him. If Knipp’s fear was only
of physical harm, he was allowed by law only to use an amount of force that was
[SEGMENT 18]
warranted under the circumstances and proportionate to the perceived threat. Knipp’s
decision to run into Joshua with his vehicle was deadly force and was disproportionate to
the threat he faced under these circumstances.
The Jury Did Not Lose Its Way Concluding that Knipp was Guilty and that
He was not Acting in Self-defense
{¶30} The term “‘manifest weight of the evidence’. . .relates to persuasion.”
[CITATION], ¶19. It “concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather than
the other.’” (Emphasis deleted.) [CITATION], 387(1997),
quoting Black's Law Dictionary (6th Ed. 1990); [CITATION], ¶ 26. In
weighing the evidence, the court of appeals must always be mindful of the presumption
in favor of the finder of fact.” [CITATION], ¶ 21. “The underlying rationale of giving deference
to the findings of the trial court rests with the knowledge that the [trier of fact] is best able Richland County, Case No. 2023 CA 0046
to view the witnesses and observe their demeanor, gestures and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.” [CITATION]
{¶31} When there is conflicting testimony presented at trial, a defendant is not
entitled to a reversal on manifest weight grounds merely because inconsistent evidence
was presented. “‘If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the verdict and judgment.’” [CITATION]
{¶32} The interplay between the presumption of correctness and the ability of an
appellate court to reverse a verdict based on the manifest weight of the evidence has
been stated as follows, “’Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing court
as being against the manifest weight of the evidence.’” [CITATION]
See, also, [CITATION] “The central question is whether ‘there is
substantial evidence upon which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.’ (Emphasis sic.) [CITATION] Richland County, Case No. 2023 CA 0046
{¶33} While Knipp was free to argue that he was justified in using deadly force,
and the trial court instructed the jury accordingly, the jury may have chosen to discredit
his testimony. The jury saw Knipp, Joshua and all the witnesses subjected to cross-
examination. The jury also reviewed the surveillance video showing the events as they
happened in real time. The trial judge gave the jury the requested instruction on self-
defense. The jury asked several questions concerning the law of self-defense; however,
the jury ultimately concluded that Knipp did not act in self-defense. Thus, we find
substantial evidence exists in the record for the jury’s decision that the state disproved
beyond a reasonable doubt Knipp’s self-defense claim.
{¶34} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which Knipp was convicted. We further find there is substantial evidence
proving beyond a reasonable doubt that the degree of force used by Knipp was
unwarranted under the circumstances and disproportionate to the perceived threat.
Therefore, in light of the evidence discussed above, as well as the record in its entirety,
we find the jury clearly did not lose its way concluding that Knipp was guilty and that he
was not acting in self-defense. We find that the jury did not disregard or overlooked
compelling evidence that weighed against conviction.
{¶35} Knipp’s sole Assignment of Error is overruled. Richland County, Case No. 2023 CA 0046
{¶36} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, J., and
King, J., concur
[CITATION]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 23CA0060
:
NATHAN HELMONDOLLAR :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 22CR172
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 29, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JENNY WELLS CHRIS BRIGDON
LICKING CO. PROSECUTOR
Somerset Rd.
KENNETH OSWALT Thornville, OH 43076
20 S. Second St., 4th Floor
Newark, OH 43055 Licking County, Case No. 2023CA0060
Delaney, P.J.
{¶1} Appellant Nathan Helmondollar appeals from the April 26, 2023 Judgment
Entry of sentence of the Licking County Court of Common Pleas. Appellee is the state of
Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The parties do not dispute the following facts which are adduced from the
record of appellant’s jury trial.
{¶3} Jane Doe is appellant’s ex-girlfriend. She was “exploring a romantic
relationship” with Sam Roe, an acquaintance of appellant’s. The two men developed a
rivalry over Jane Doe and exchanged antagonistic text messages in the days preceding
the shooting giving rise to the instant case. Roe’s texts to appellant included, “Wait till I
see you bitch boy,” “See the thing is wait till I see you[,] Gaine the fuck over;” “what are
you waiting on bitch;” “I bet you don’t show up[,] where the fuck are you;” and “Come
square up lets see whos a bitch” (sic throughout). Roe agreed the texts amounted to an
invitation to come over and fight, although he never intended to act on the threats and
only sought to scare appellant.
{¶4} On March 4, 2021, Doe and Roe spent the day together and then went to a
friend’s house where Roe drank and smoked marijuana. Around 9:00 p.m., they heard
appellant arrive outside on his motorcycle. Jane Doe went outside and spoke to
appellant, then told Roe she was leaving with appellant.
{¶5} Roe gathered his things in a backpack and left the house. The backpack
was over his shoulder and a cigarette was in his hand. As Roe walked past appellant,
appellant said “hey pal” and shot Roe once in the right center of his back. Roe testified Licking County, Case No. 2023CA0060
he was angry after he was shot and tried to push over appellant’s motorcycle, but did not
have the energy to do so and fell to the ground. The gunshot wound was located in the
right center of Roe’s back, with the bullet lodged just below the skin. Later at the hospital,
the bullet “popped out” on its own.
{¶6} Witness 1 lived in the same apartment complex and was looking out her
window watching for her husband. She noticed two men outside near a car and a
motorcycle. One man turned sideways and appeared to be smoking a cigarette. The
other man raised a gun and shot the other man once. Witness 1’s windows were closed
and she did not hear any conversation, but the men did not appear to fight prior to the
shooting. Witness 1 did not observe the victim to have any weapons and he did not
appear to threaten the shooter. The shooter fled and Witness 1 called 911; the call was
played by appellee at trial. Witness 1 testified she had a clear view of events.
{¶7} Witness 2 also lived in the apartment complex and went outside after she
heard a gunshot, in time to see a motorcycle drive away. Witness 2 assisted the victim
and stayed with him until police arrived.
{¶8} Roe told Officer Lewis, one of the first on scene, that appellant shot him.
Lewis removed a knife from a sheath hanging on a necklace around Roe’s neck.
{¶9} Roe also told Officer Thomas that appellant shot him. Thomas checked
Roe’s wounds and observed a bullet protruding from the area of his left rib cage. Thomas
also found a shell casing next to Roe’s foot and collected it as evidence, noting the
location indicated Roe was likely close to the shooter. Licking County, Case No. 2023CA0060
{¶10} A police weapons expert testified appellant’s firearm was a Taurus 709 Slim
nine-millimeter single-stack handgun designed to be concealed, although he didn’t know
whether the firearm was concealed in this case.
{¶11} Appellant fled after the shooting and police eventually tracked him to his
[SEGMENT 19]
mother’s house, where they initiated surveillance and eventually arrested appellant on a
traffic stop.
{¶12} Police interviewed appellant at the department and the interview was one
of appellee’s exhibits at trial. Appellant at first claimed to have no idea why he was there.
Police asked if he was at the apartment, and he first claimed he picked up Jane Doe and
left; appellant said Roe was a “stalker” who held Doe against her will and he heard through
Doe that Roe “got messed up.”
{¶13} When police told appellant they already spoke to witnesses at the scene,
appellant admitted shooting Roe. He said Jane Doe went back inside the apartment to
get her bag and Roe came out, charging at appellant. Roe spit in appellant’s face and
mumbled that Doe was leaving with him instead. Appellant claimed Roe shouldered him
to the side and rammed his motorcycle, damaging the turn signal. Appellant further
claimed Roe then lunged at him with his right hand from about three feet away, causing
him to draw his firearm and shoot Roe in self-defense because he was in fear. Appellant
believed he shot Roe in the left side. Appellant said Jane Doe and others came outside
in a panic, and he and Doe rode off on his motorcycle.
{¶14} Appellant stated he was “open carrying” the firearm on a belt clip, although
he admittedly did not have a concealed-carry permit. After the shooting, he put the gun
in his pocket when he rode away. Licking County, Case No. 2023CA0060
{¶15} Detectives testified appellant’s statement did not match the physical
evidence, including the entrance wound to Roe’s back. Appellant’s account omitted the
fact that he shot Roe in the back.
{¶16} Appellant told detectives he kept the firearm in a safe in his bedroom and
gave them the passcode to access the safe. Police also found rifles in appellant’s
bedroom which would not fit in the safe.
{¶17} Detective Fumi testified that police attempted to interview friends at the
apartment on the night of the incident, but some of them were too intoxicated to interview.
The detective speculated some were under the influence of some type of drug and were
behaving as though they used methamphetamine.
{¶18} Detective Farmer interviewed Roe in the ambulance after the shooting. Roe
said he was trying to start a relationship with Jane Doe and appellant arrived. Roe said
he was attempting to remove himself from the situation to avoid a confrontation but
appellant shot him in the back.
{¶19} Appellant was charged by indictment with one count of felonious assault
pursuant to R.C. 2903.11(A)(2), a felony of the second degree [Count I]; one count of
carrying concealed weapons pursuant to R.C. 2923.12(A)(2), a felony of the fourth degree
[Count II]; and one count of improper handling of firearms in a motor vehicle pursuant to
R.C. 2923.16(B), a felony of the fourth degree. All three counts of the indictment were
accompanied by firearm specifications.
{¶20} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. Appellant was found guilty as charged and sentenced to a total aggregate prison Licking County, Case No. 2023CA0060
term of 8 to 10½ years, including a mandatory 3-year consecutive sentence for the
(merged) firearm specifications.
{¶21} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶22} “I. WAS THE APPELLANT DEPRIVED OF HIS STATE AND FEDERAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE
COUNSEL FAILED TO OBJECT TO EVIDENCE THAT APPELLANT HAD AN
EXTENSIVE CACHE OF WEAPONS IN HIS BEDROOM?”
{¶23} “II. WAS THE CONVICTION FOR FELONIOUS ASSAULT SUPPORTED
BY THE WEIGHT OF THE EVIDENCE ON THE ISSUE OF WHETHER APPELLANT
ACTED IN SELF-DEFENSE?”
{¶24} “III. W[ERE] THE INDEFINITE PRISON TERMS IMPOSED UNDER THE
REAGAN TOKES LAW VIOLAT[IVE OF] THE JURY TRIAL GUARANTEE, THE
DOCTRINE OF SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES
UNDER THE FEDERAL AND STATE CONSTITUTIONS?”
ANALYSIS
I.
{¶25} In his first assignment of error, appellant argues he received ineffective
assistance of defense trial counsel. We disagree.
{¶26} Appellant argues defense trial counsel was ineffective in failing to object to
detectives’ testimony about rifles, knives, and a sword found in his bedroom during the
search for the firearm used in the shooting. Appellee moved to admit exhibits including
photos of the unrelated weapons in appellant’s bedroom; defense trial counsel voiced no Licking County, Case No. 2023CA0060
objection to admission of the photos but the trial court sua sponte questioned the photos
and noted the unrelated weapons were not relevant. Appellee argued the photos were
relevant its assertion appellant put only the Taurus 9-millimeter in the safe, intending to
hide it. Defense counsel pointed out appellant told police the firearm was in the safe and
provided the passcode. The trial court excluded the photos, commenting “I think you’re
using the weapons there to make him out to be a violent and bad person, and I’d find that
the prejudicial impact outweighs any probative value.” T. 327-329.
{¶27} The photos were not entered into evidence, but detectives’ testimony did
include statements about the other weapons found in appellant’s bedroom. Appellant
argues defense trial counsel was ineffective in failing to object to these statements. To
succeed on a claim of ineffectiveness, a defendant must satisfy a two-prong test. Initially,
a defendant must show that trial counsel acted incompetently. See, [CITATION]. In assessing such claims, “a court
must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689, citing [CITATION].
{¶28} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” [CITATION]. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690. Licking County, Case No. 2023CA0060
{¶29} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
[CITATION].
{¶30} Appellant argues defense trial counsel should have objected to the
testimony about and photos of his “stockpile of weapons.” Brief, 3. The trial court sua
sponte excluded the latter and appellant cannot point to any prejudice therefrom. We are
left with counsel’s failure to object to detectives’ testimony about weapons found in
appellant’s bedroom, Appellant does not demonstrate how trial counsel's failure to object
to the testimony affected the outcome of the trial. Indeed, trial counsel's failure to object
could have been tactical. “Trial counsel is not ineffective for choosing, for tactical reasons,
not to pursue every possible trial objection.” [CITATION], internal citation omitted. Trial counsel may
not have wanted to call attention to the statement. See, [CITATION]. Moreover, the Supreme Court of Ohio held that
“the failure to make objections is not alone enough to sustain a claim of ineffective
assistance of counsel.” [CITATION].
{¶31} Finally, even if counsel's failure to object reflected deficient performance,
appellant has failed to establish prejudice under [CITATION] because he fails to
demonstrate any reasonable probability that, but for the jury hearing about his other Licking County, Case No. 2023CA0060
weapons, the result of his trial would have been different. [CITATION], ¶ 62.
{¶32} Accordingly, appellant’s first assignment of error is overruled.
II.
{¶33} In his second assignment of error, appellant argues his felonious assault
conviction is against the weight of the evidence because he acted in self-defense. We
disagree.
{¶34} Appellee's new burden of disproving the defendant's self-defense claim
beyond a reasonable doubt is subject to a manifest-weight review on appeal. [CITATION], ¶ 74, citing [CITATION], ¶ 27. As to the weight
of the evidence, the issue is whether the jury created a manifest miscarriage of justice in
resolving conflicting evidence, even though the evidence of guilt was legally sufficient.
[CITATION], superseded by constitutional amendment on other grounds.
{¶35} “Weight of the evidence” addresses the evidence's effect of inducing belief.
[CITATION]. When a court of appeals reverses
a judgment of a trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder's
[SEGMENT 20]
resolution of the conflicting testimony. [CITATION], citing [CITATION].
{¶36} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost Licking County, Case No. 2023CA0060
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” [CITATION], quoting [CITATION].
{¶37} Appellant challenges his conviction upon one count of felonious assault
pursuant to R. C. 2903.11(A)(2), which provides that no person shall cause or attempt to
cause physical harm to another by means of a deadly weapon or dangerous ordnance.
When an accused asserts the defense of self-defense, he does not seek to negate any
of the elements of the offense which appellee is required to prove. Self-defense is an
admission of the prohibited conduct coupled with a claim that the surrounding facts or
circumstances exempt the accused from liability therefor— “justification for admitted
conduct.” [CITATION], citing [CITATION].
{¶38} R.C. 2901.05(B)(1) provides as follows regarding self-defense:
(B)(1) A person is allowed to act in self-defense, defense of
another, or defense of that person's residence. If, at the trial of a
person who is accused of an offense that involved the person's use
of force against another, there is evidence presented that tends to
support that the accused person used the force in self-defense,
defense of another, or defense of that person's residence, the
prosecution must prove beyond a reasonable doubt that the accused
person did not use the force in self-defense, defense of another, or
defense of that person's residence, as the case may be. Licking County, Case No. 2023CA0060
{¶39} Under R.C. 2901.05(B)(1), therefore, there are two burdens. [CITATION]. The defendant
has the initial burden of production, which is the burden of producing evidence “that tends
to support” that the defendant used the force in self-defense. [CITATION]. The burden then shifts to appellee
under its burden of persuasion to prove beyond a reasonable doubt that the defendant
did not use the force in self-defense. [CITATION]. In other words, if the evidence tends to
support that the defendant acted in self-defense, then the prosecution must prove beyond
a reasonable doubt that the defendant did not act in self-defense. R.C. 2901.05(B)(1); [CITATION]. Appellee need only disprove one of the elements of self-defense beyond a
reasonable doubt at trial to sustain its burden. [CITATION].
{¶40} In the instance case, at the close of appellant's jury trial, the trial court
provided the jury with an instruction regarding self-defense, which means that the trial
court concluded that the record contained evidence that tends to support that appellant
used the force in self-defense when he shot Sam Roe. R.C. 2901.05(B)(1); [CITATION]. The guilty verdict means appellee met its burden of persuading the jury
beyond a reasonable doubt that appellant was not acting in self-defense when he shot Roe. [CITATION].
{¶41} When deadly force is used, the elements of self-defense that appellee must
now disprove at least one of are: (1) appellant was not at fault in creating the situation
giving rise to the affray, (2) appellant had reasonable grounds to believe and an honest
belief even if mistaken that he was in imminent danger of death or great bodily harm and Licking County, Case No. 2023CA0060
that he did not use more force than necessary to defend against the attack, and (3)
appellant must not have violated any duty to retreat or avoid the danger. [CITATION], ¶ 84, citing [CITATION].
{¶42} As to the third element of self-defense, “a person has no duty to retreat
before using self-defense * * * if that person is in a place in which the person lawfully has
a right to be.” R.C. 2901.09(B); [CITATION], ¶ 10. “Simply put, the new ‘stand your
ground’ law removes, in most cases, the duty to retreat before using self-defense.”
[CITATION], ¶ 85, citing [CITATION].
{¶43} The second element of self-defense “is a combined subjective and objective
test.” [CITATION]. The person's belief must be objectively reasonable under the circumstances and he must subjectively
believe he needed to resort to force to defend himself or the other person. Id. at 330–331.
{¶44} “The objective part of the test requires consideration of ‘whether,
considering all of the defendant's particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack,’ a reasonable
person would believe that danger was imminent.” [CITATION], ¶ 86,
internal citations omitted. The subjective part requires consideration of whether the
defendant himself actually believed that he was in imminent danger. Id.
{¶45} Here, the evidence does not support appellant’s contention that he
possessed the necessary objective and subjective beliefs he was in imminent or
immediate danger of death or great bodily harm. He points to the threatening texts Licking County, Case No. 2023CA0060
exchanged with Sam Roe on the day preceding the shooting. Generally, neither words
alone nor fear itself will constitute evidence of serious provocation. “[W]ords alone will not
constitute reasonably sufficient provocation to incite the use of deadly force in most
situations.” [CITATION]. Fear
alone is insufficient to demonstrate the kind of emotional state necessary to constitute
sudden passion or fit of rage. [CITATION].
{¶46} Appellant further asserts Roe “pushed him out of the way” and “slammed
into his motorcycle.” Brief, 7. A victim's simple pushing or punching does not constitute
sufficient provocation to incite the use of deadly force in most situations. See, [CITATION] (concluding that sufficient
provocation did not exist when the victim grabbed the defendant by the testicles and the
arm); [CITATION] (concluding that the
victim's conduct in approaching the defendant with a hammer and stating “come on” did
not constitute sufficient provocation); [CITATION] (“We find that a mere shove and a swing (which appellant
by his own testimony ducked) are insufficient as a matter of law to constitute serious
provocation reasonably sufficient to incite or arouse appellant into using deadly force.”).
{¶47} Implicit in the second element of self-defense is the requirement that the
degree of force used was warranted under the circumstances and proportionate to the
perceived threat. [CITATION], ¶ 88, citing [CITATION], ¶ 58. As to the degree of force that is permitted,
the defendant is privileged to use the amount of force that is reasonably necessary to
repel the attack. [CITATION].
====== End of Document ====== Licking County, Case No. 2023CA0060
{¶48} Appellant demonstrated only verbal threats made by Roe prior to
appellant’s use of deadly force. Witness 1 testified Roe was standing near appellant
smoking a cigarette, and when he turned sideways, appellant shot him. Witness 1 did
not observed any aggression from Roe toward appellant. Roe was not armed; although
he had a sheathed knife in a necklace around his neck, he never brandished it and the
knife was removed from the sheath by police.
{¶49} If appellant's fear was only of physical harm, he was allowed by law only to
use an amount of force that was warranted under the circumstances and proportionate to
the perceived threat. [CITATION], ¶ 89. Appellant's decision to shoot
Roe in the back was deadly force and was disproportionate to the threat he faced under
these circumstances. Id.
{¶50} While appellant was free to argue that he was justified in using deadly force,
and the trial court instructed the jury accordingly, the jury may have reasonably chosen
to reject his argument. Upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which appellant was convicted. We further find there is substantial evidence
proving beyond a reasonable doubt that appellant was not acting in self-defense when he
shot Roe and the degree of force used by appellant was unwarranted under the
circumstances and disproportionate to the perceived threat. Therefore, in light of the
evidence discussed above, as well as the record in its entirety, we do not find the jury
clearly lost its way in finding appellant guilty of felonious assault and that appellant was
not acting in self-defense. We do not find that the jury disregarded or overlooked
compelling evidence that weighed against conviction. Licking County, Case No. 2023CA0060
{¶51} Appellant’s second assignment of error is overruled.
III.
{¶52} In his third assignment of error, appellant argues his indefinite sentence
violates the jury trial guarantee, the doctrine of separation of powers, and due process
principles of the federal and state constitutions. We disagree.
{¶53} In his summary argument, appellant acknowledges we have repeatedly
[SEGMENT 21]
rejected his constitutional challenges to indefinite sentencing (see, e.g., [CITATION]).
Appellant further acknowledges he raised
this summary assignment of error in light of the Ohio Supreme Court’s consideration of
Hacker, supra.
{¶54} His arguments have now been weighed and rejected by the Ohio Supreme
Court. See, [CITATION].
{¶55} Appellant’s third assignment of error is therefore overruled. Licking County, Case No. 2023CA0060
CONCLUSION
{¶56} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Gwin, J. and
Wise, J., concur.
======
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230489
TRIAL NO. 23CRB-1468
Plaintiff-Appellee, :
vs. : O P I N I O N.
KAELIN HAWKINS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In response to the Ohio General Assembly shifting the burden of proof
in self-defense cases from the defendant to the prosecution, Ohio added Crim.R. 12.2,
which requires the defendant to file a written notice, prior to trial, providing their
intent to raise a self-defense argument. Here, defendant-appellant Kaelin Hawkins
claims that the trial court erred by declaring his self-defense arguments “waived”
because he failed to file the requisite notice. He also faults his defense counsel as
ineffective for failing to follow Crim.R. 12.2. But even if an error arose by virtue of the
missing notice, he still must show prejudice flowing from that flaw in the trial process.
Because the trial court allowed evidence of Mr. Hawkins’s self-defense arguments
notwithstanding the lack of notice and weighed it prior to announcing its guilty
verdict, we ultimately find no prejudice on this record. We accordingly affirm the
judgment of the trial court convicting him of misdemeanor assault.
I.
{¶2} In January 2023, Ariel Bahuguna, Jeremy Hill, and about five other
friends were drinking and dancing at The Drinkery, a bar in Cincinnati’s Over-the-
Rhine neighborhood. Eventually, they wound up in a physical tangle outside the bar
during which another patron, Mr. Hawkins, bit Ms. Bahuguna on the thigh. Although
all witnesses testified that they drank that night and some admitted to having hazy
recollections of the evening’s events, a general picture emerged at Mr. Hawkins’s trial
about how the confrontation and bite transpired.
{¶3} Shortly after arriving, Ms. Bahuguna and some other women in the
group went to the restroom. There, they encountered Molly Beddinghaus, who Ms.
Bahuguna described as “hysterical,” and asked her if she needed help. Mr. Hawkins,
OHIO FIRST DISTRICT COURT OF APPEALS
Ms. Beddinghaus’s boyfriend, waited outside the restroom, as apparently he was prone
to doing. At some point, after hearing a commotion, Mr. Hawkins peered into the
restroom to check on Ms. Beddinghaus and, seeing the group of women attempting to
console her, sought to extract her. But he claimed that the women pulled Ms.
Beddinghaus back into her restroom stall, “by the neck,” despite her crying out for
him. Soon after, the women left the restroom with Ms. Beddinghaus and told Mr. Hill
and their other friends that they needed to call her a car to get her home.
{¶4} Mr. Hill testified that, around this time, Mr. Hawkins approached his
group, acting like a “hostile individual,” and threw a drink at them. Whereupon,
security tossed Mr. Hawkins out of the front entrance of the bar, and the friend group
(with Ms. Beddinghaus) migrated outside through a back door.
{¶5} Across the street from the bar, the group waited with Ms. Beddinghaus
for her car to arrive for five to ten minutes, during which time Mr. Hill described her
as “hysterically crying” and “visually shaken, visibly upset.” Suddenly, Mr. Hawkins
rushed forward and “collided” with the group with enough force to knock Mr. Hill, Ms.
Bahuguna, and others to the ground, apparently attempting to rescue Ms.
Beddinghaus. As the altercation unfolded, Mr. Hill saw Mr. Hawkins on top of Ms.
Bahuguna with his teeth latched to her thigh, biting her through her jeans in a zombie-
like manner. He pulled Mr. Hawkins off her, and he and Mr. Hawkins fell to the
ground again as they fought. Mr. Hawkins then sank his teeth into Mr. Hill’s torso,
before Mr. Hill shoved him off. Police eventually arrived, and Mr. Hawkins was
charged with assaulting Ms. Bahuguna, in violation of R.C. 2903.13. The arresting
officer testified that Ms. Beddinghaus was “extremely distraught, crying nonstop,”
refused medical attention, and would not tell the officer anything that happened.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} At trial, Mr. Hawkins did not deny biting Ms. Bahuguna, and the state
introduced photographs of her bite injury into evidence, showing deep top- and
bottom-teeth marks, redness, and bruising on her thigh. Instead, he asserted self-
defense and defense of another, insisting that Ms. Bahuguna’s group sought to
“kidnap” Ms. Beddinghaus. His theory focused especially on the restroom incident
and his observation that the group was holding coats over Ms. Beddinghaus’s head
(perhaps to shield or hide her) outside the bar. He further testified that when he
approached the group outside, he tripped on a curb, and someone grabbed him by the
neck as he was trying to pull Ms. Beddinghaus away, precipitating the physical
entanglement and biting, which he maintains occurred in self-defense.
{¶7} Ms. Beddinghaus’s account of the evening left much to the imagination.
She testified that when she entered the restroom, a group of women came into her
stall, and she “blanked out” based on stress and fright before calling out for Mr.
Hawkins. She recalled that she “kind of blurred out again” after Mr. Hawkins was
escorted out of the bar and remembered later being outside with the group. On cross-
examination, she admitted that she did not know whether she asked the women for
help when she was “blacked out.”
{¶8} The trial court ultimately found Mr. Hawkins guilty of misdemeanor
assault, in violation of [CITATION], and sentenced him to 180 days in jail, 180
suspended, and two years of probation. It denied Mr. Hawkins’s Crim.R. 29 motion
for an acquittal after the state’s case and again after the conclusion of evidence. Prior
to the second ruling, the court noted that the record contained no notice regarding a
self-defense argument, as required by Crim.R. 12.2, determining that those arguments
were “waived.” Mr. Hawkins asked the court to consider the self-defense evidence he
OHIO FIRST DISTRICT COURT OF APPEALS
presented anyway. Prior to announcing the verdict, the court favorably described how
Mr. Hill and Ms. Bahuguna’s “story matched” and found that the defense’s kidnapping
theory “does not make logical sense.” It found persuasive the facts that security did
not try to intervene, the group patiently waited outside of the bar with Ms.
Beddinghaus, Ms. Beddinghaus did not testify about women forcing her to do
anything, and Ms. Beddinghaus lacked memories about the night. It considered the
testimony of both Mr. Hawkins and Ms. Beddinghaus and assessed their stories for
consistency and credibility prior to finding him guilty.
{¶9} Mr. Hawkins moved for a new trial, which the court denied. He now
appeals his conviction, arguing that the trial court erred in failing to consider his self-
defense arguments and that he was deprived of the effective assistance of counsel
because his trial counsel failed to file a notice of self-defense.
II.
{¶10} In March of 2019, an amended Ohio statute shifted the burden of proof
to the prosecution in use of force cases where “there is evidence presented that tends
to support that the accused person used the force in self-defense” or defense of
another. R.C. 2901.05(B)(1) (In such cases, “the prosecution must prove beyond a
reasonable doubt that the accused person did not use the force” in that defensive way.).
We have previously held that the procedural burden “ ‘of going forward with the
evidence’ ” of an affirmative defense, which is a burden of production, remains with
the accused. [CITATION]
{¶11} In this case, however, the parties do not contest whether Mr. Hawkins
met his burden of production or whether the state met its burden of proof. Instead,
OHIO FIRST DISTRICT COURT OF APPEALS
[SEGMENT 22]
their primary concern is how the trial court handled Mr. Hawkins’s admitted failure
to file the requisite notice under Crim.R. 12.2. Under that rule, a defendant must give
written notice of his intent to argue self-defense or defense of another no less than 14
days before trial in a misdemeanor case, like this one. Crim.R. 12.2. Further, “[i]f the
defendant fails to file such written notice, the court may exclude evidence offered by
the defendant related to the defense, unless the court determines that in the interest
of justice such evidence should be admitted.” Id. Thus, under Crim.R. 12.2, a trial
court has discretion whether to exclude a defendant’s evidence of self-defense after the
defendant fails to file the requisite notice, and an appellate court reviews the trial
court’s determination for an abuse of discretion. An abuse of discretion occurs when
“a court exercise[s] its judgment, in an unwarranted way, in regard to a matter over
which it has discretionary authority.” [CITATION]
{¶12} Notwithstanding the absence of notice, Mr. Hawkins asserts that the
trial court erred in failing to consider his self-defense evidence and that it should have
done so “in the interest of justice.” See Crim.R. 12.2. However, after reviewing the
record, we conclude the trial court effectively did what he now requests. Despite
deeming his self-defense arguments “waived” because of the lack of Crim.R. 12.2
notice, the trial court recited its factual conclusions at length prior to announcing the
verdict, including assessments of Mr. Hawkins’s self-defense and defense of another
arguments. It found that Ms. Beddinghaus’s story “just does not make sense” and that
the kidnapping allegation likewise “does not make logical sense,” emphasizing how
neither she nor Mr. Hawkins alleged any type of kidnapping plot on the night of the
assault. And the court recalled the officer’s testimony that despite Mr. Hawkins
OHIO FIRST DISTRICT COURT OF APPEALS
claiming to have injuries from the brawl, she observed none on him that night.
Contrasted with the trial court’s findings that the stories of the prosecution’s witnesses
“matched,” the court impliedly found the defense’s theories not to be credible. So
while the trial court may have acted inconsistently in announcing its “waiver”
determination before weighing the self-defense arguments anyway, the waiver
statement seemingly did not prevent the defense from advancing its self-defense
arguments for the trial court, and it weighed them in the end.
{¶13} Under our harmless error standard, “[a]ny error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” Crim.R. 52(A).
At a minimum, to affect the defendant’s substantial rights, the error must be
prejudicial. See [CITATION]. Because Mr. Hawkins fails to show how the trial court’s statement that his self-defense
arguments were “waived” prejudiced his defense, we conclude the trial court’s actions
were at a minimum harmless, and we overrule his first assignment of error.
{¶14} In his second assignment of error, Mr. Hawkins understandably faults
his trial counsel for failing to file the requisite notice of self-defense under Crim.R.
12.2. But his claim that this failure deprived him of the effective assistance of counsel
in violation of the U.S. Constitution and the Ohio Constitution fails by the same logic
his first assignment of error fell short: he does not show that he suffered prejudice by
the lack of notice.
{¶15} To prove ineffective assistance of counsel, a defendant must
demonstrate both that “counsel’s performance was deficient,” and that “the deficient
performance prejudiced the defense.” [CITATION]. To show prejudice, a defendant “must prove
OHIO FIRST DISTRICT COURT OF APPEALS
that there exists a reasonable probability that, were it not for counsel’s errors, the
result of the trial would have been different.” [CITATION]
{¶16} Here, the trial court admitted and weighed evidence of Mr. Hawkins’s
self-defense and defense of another arguments despite its waiver conclusion. Mr.
Hawkins presents no argument that additional evidence would have been admitted or
considered had the notice been appropriately filed (for instance, he never proffered
additional evidence). Therefore, he has not met his burden to show a reasonable
probability that the result of the trial would have differed if his trial counsel had
complied with the notice requirement of Crim.R. 12.2, and we overrule his second
assignment of error. See id. at 143; see also [CITATION]
* * *
{¶17} Because Mr. Hawkins fails to show prejudice from the trial court’s
statement that his self-defense arguments were “waived” or from his trial counsel’s
failure to file the requisite notice under Crim.R. 12.2, we overrule his two assignments
of error and affirm the judgment of the trial court convicting him of misdemeanor
assault in violation of R.C. 2903.13.
Judgment affirmed.
BOCK, P.J., and WINKLER, J., concur.
The provided document excerpt does not contain any court ruling citations to modify. Therefore, no changes are necessary. [TEXT CONTAINING COURT RULING CITATIONS IS MISSING]
[Cite as [CITATION].]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2023 CA 00024
JEREMY ALAN MORLOCK :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2022 CR 1020C
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 7, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE STONE KELLY S. MURRY
Stark County Prosecutor
Courtyard Centre
BY: CHRISTOPHER A. PIEKARSKI
Cleveland Ave., N.W.
Assistant Prosecutor Canton, OH 44702
110 Central Plaza South
Canton, OH 44702 [CITATION]
Gwin, P.J.
{¶1} Defendant-appellant Jeremy Alan Morlock [Morlock] appeals his
convictions and sentences after a jury trial in the Stark County Court of Common Pleas,
Stark County, Ohio.
Facts and Procedural History
{¶2} On July 14, 2022, the Stark County Grand Jury indicted Morlock on:
Aggravated Murder, [Joseph Pomeroy] an unclassified felony, in violation of R.C.
2903.01(A), 2929.02(A)1; Murder, [Joseph Pomeroy] an unclassified felony, in violation of
R.C. 2903.02(A)(D), 2929.02(B)2; Kidnapping [Buddy Myers], a felony of the first degree,
in violation of R.C. 2905.01(A)(2)(C)(1)3; Aggravated Robbery [Buddy Myers], a felony of
the first degree, in violation of R.C. 2911.01(A)(1)(C)4; Grand Theft of a Motor Vehicle
[Buddy Myers], a felony of the fourth degree, in violation of R.C. 2913.02(A)(1)(B)(5)5;
Kidnapping [to terrorize, or to inflict serious physical harm on the victim], [Blake Waldrup],
a felony of the first degree, in violation of R.C. 2905.01(A)(3)(C)(1)6; Kidnapping [to
engage in sexual activity], [Blake Waldrup], a felony of the first degree, in violation of R.C.
2905.01(A)(4)(C)(1)7; Felonious Assault [Blake Waldrup], a felony of the second degree,
in violation of R.C. 2903.11(A)(1)(D)(1)(a)8; Rape [Blake Waldrup], a felony of the first
Morlock was also charged with aiding and abetting Clayton Justin Smart, Mary Ann Soliday,
and/or Andrew Charles Williams in the commission of this offense.
See Note 1
Morlock was also charged with aiding and abetting Clayton Justin Smart, Mary Ann Soliday,
and/or Bonnie June Metz in the commission of this offense.
See Note 3
See Note 3
See Note 3
See Note 3
Morlock was also charged with aiding and abetting Clayton Justin Smart and Mary Ann Soliday,
in the commission of this offense. Stark County, Case No. 2023 CA 00024
degree, in violation of R.C. 2907.02(A)(2)(B)9; Gross Abuse of a Corpse, a felony of the
fifth degree, in violation of R.C. 2927.01(B)/(C)10; and Tampering with Evidence, a felony
[SEGMENT 23]
of the third degree, in violation of R.C. 2921.12(A)(1)(2)(B).11
{¶3} At trial, [CITATION], Morlock’s co-defendant, testified on behalf
of the state in exchange for a reduced sentence of 30 to 35 years for pleading to
involuntary manslaughter, three counts of kidnapping, aggravated robbery, grand theft of
a motor vehicle, felonious assault, gross abuse of a corpse, and tampering with evidence.
[CITATION], also a co-defendant, testified on behalf of the
state as part of a plea negotiation wherein he would receive a sentence of 12 to 15 years
for pleading to involuntary manslaughter, tampering with evidence, and gross abuse of a
corpse. [CITATION], a co-defendant of Morlock’s testified
on behalf of the state as part of a plea bargain wherein the state will drop the charge for
tampering with evidence and recommend one year of probation for pleading to gross
abuse of a corpse. [CITATION].
The Kidnapping and Aggravated Robbery of Buddy Myers, and the Grand Theft
of His Car
{¶4} In May, 2022, Morlock lived in a small house on Correll Avenue Northeast,
in Canton, Ohio, along with his girlfriend [CITATION], and [CITATION].
See Note 8
10 See Note 1
11 See Note 1
12 For clarity, the transcript of Morlock’s jury trial will be referred to as “__T.__” signifying the volume
and page number. ```plaintext
Stark County, Case No. 2023 CA 00024
{¶5} On May 5, 2022, Morlock and Bonnie argued over her allegations that her
ex-boyfriend and father of her children, Buddy Myers [Buddy], had raped her one time
while Morlock was away.[CITATION] Clayton testified that, in response to these allegations,
the group devised a plan to lure Buddy to the house, so they could "talk about it and then
go from there." [CITATION] Clayton claimed the phrase "go from there" meant Morlock
wanted to kill Buddy, which was the "ultimate plan[.]” [CITATION]
{¶6} Mary texted Buddy that she wanted to have sex with him and asked him to
come to the Correll house.[CITATION] Buddy came to the house and
followed Mary inside, while Morlock, Clayton, and Bonnie all lied in wait in Morlock's
bedroom.[CITATION] Buddy soon noticed some shadows
in the back hallway and tried to leave the house, only to be confronted by Clayton, who
was now standing in front of the doorway and holding a gun to Buddy's head.[CITATION] Clayton told Buddy to sit on the nearby futon and
to give him everything he had on him, so Buddy surrendered his cell phone, wallet, and
car keys.[CITATION] Morlock, Mary, and Bonnie all entered the room
while Buddy was on the futon.[CITATION] Morlock asked Buddy if he could
use his car to go to the store, though neither Buddy nor Clayton believed Buddy really
had a choice in the matter, as he was being held at gunpoint.[CITATION] Morlock took Buddy's car keys and drove his car to the Circle K.[CITATION] When Morlock returned, Clayton gave the gun to Mary and told her to shoot Buddy
if he moved.[CITATION] Clayton searched Buddy's car, found a
pair of silver handcuffs, and then used them the handcuff Buddy to a metal dog leash that
Mary had tied around the futon.[CITATION]
``` Stark County, Case No. 2023 CA 00024
{¶7} While holding the now-restrained Buddy at gunpoint, Morlock and Clayton
both interrogated him about the rape allegations for perhaps ten to fifteen minutes, though
Buddy recalled it lasting for what seemed like forever. [CITATION] at 257, 267. They kept
repeating the same questions, and Buddy feared for his life and just wanted to leave. [CITATION]
at 257, 260.
{¶8} Clayton and Mary took Buddy's cell phone, wallet, and car keys, and drove
his car to a local restaurant, where they stole the stereo system out of it and abandoned
the vehicle. [CITATION] at 260; [CITATION] at 75. Clayton later sold the stereo system. [CITATION] at 76. He
testified that once he and Mary left with the car, Morlock was supposed to kill Buddy. [CITATION]
at 118.
{¶9} After Clayton and Mary left, Buddy asked Morlock if he could leave. [CITATION] at
261. Morlock said he could not hold Buddy against his will. [CITATION] at 261, 267. Buddy then
broke the chain on his own, escaped, and ran to his grandma's house to call the police
and then took police back to where he was held. [CITATION] at 261-262.
{¶10} At approximately 1:48 A.M. on May 5, 2022, Canton Police Officers were
dispatched to a residence located on Alexander Place Northeast in Canton, Ohio in
response to a report called in by OnStar Navigation Services for a stolen vehicle, and an
individual being handcuffed and held against his will. [CITATION] at 236-237. As Officer Brandon
Shackle and his partner Officer David Grant arrived at the residence, they located the
victim, Buddy Myers, exiting the home. [CITATION] at 237. Officer Shackle noted that Buddy had
a silver handcuff on his left wrist. Id. Buddy told the officers that Morlock, Clayton, Mary,
and Bonnie were all responsible for the incident. [CITATION] at 242-243. Following Buddy’s
directions, Officer Shackle and Officer Grant drove to the residence located at 616 Correll Stark County, Case No. 2023 CA 00024
Avenue Northeast, Canton, Ohio. [CITATION]. Officer Shackle testified that no one
answered the door when he knocked, no lights were on in the residence, no movement
was heard inside, and Buddy’s vehicle was not parked anywhere in the immediate area
of the residence. [CITATION].
The murder of Joseph Pomeroy
{¶11} Pomeroy moved in to live with the others at the Correll house on the 6th or
7th of May, 2022. [CITATION]. According to Clayton, problems soon occurred as "things
came up missing." [CITATION]. Clayton's drugs and money, Morlock's tablet, Andrew’s cell
phone, and some other items all disappeared from the house, and they believed Pomeroy
stole them. [CITATION]. Clayton and Morlock were both angry and upset that
their property was missing. [CITATION].
{¶12} Clayton testified that on May 8, 2022, he, Morlock, Mary, and Andrew all
went to an abandoned house where they believed they would find Pomeroy. [CITATION].
The group then dragged Pomeroy into the basement of a nearby apartment,
inhabited by a man named Rob. [CITATION]. Andrew testified
that he did not join the group until they had Pomeroy in the basement of the apartment
located at Ninth and McKinley in Canton, Ohio. [CITATION]. Clayton testified that
everybody agreed to kill Pomeroy. [CITATION].
{¶13} Clayton testified they all started beating up Pomeroy with their fists at first,
but then Morlock hit Pomeroy with a brick. [CITATION]. Clayton and Mary also hit
Pomeroy with a brick. Id. Mary also kicked Pomeroy and struck him with a machete on
his fingers and back. [CITATION]. Clayton testified that Pomeroy died in that basement,
and that he was dead before Morlock left. [CITATION].
====== End of Document ====== Stark County, Case No. 2023 CA 00024
{¶14} Andrew testified that Clayton called him that day because he had an
emergency and needed Andrew to come to the apartment at Ninth Street and McKinley.
[CITATION] at 159-161, 176. Andrew went into the basement, where he saw Morlock, Clayton,
Mary, and Rob, as well as Pomeroy on a tarp on the floor. [CITATION] at 161-163, 166, 176.
Pomeroy was bleeding from his head and had obviously been beaten up, but was sitting
up and was still moving. [CITATION] at 163, 165-166, 176. Andrew then joined Morlock, Clayton,
Mary, and an individual named “Rob” in continuing to assault Pomeroy. [CITATION] at 163-164,
166, 177. Andrew recalled specifically seeing Morlock striking Pomeroy. [CITATION] at 174-175,
181. He also saw Mary holding a machete, but was unsure if she ever used it in his
presence, though he later observed a laceration on Pomeroy’s back. [CITATION] at 164, 177.
[SEGMENT 24]
{¶15} At one point, Andrew struck Pomeroy in the ribs and then went upstairs to
smoke methamphetamine with a few others who were already up there. [CITATION] at 164-166.
Morlock remained in the basement when Andrew went upstairs, but he too went upstairs
and left at some point. [CITATION] at 165-166, 177, 180. Shortly after Morlock left, Rob came
upstairs to smoke methamphetamine with Andrew. [CITATION] at 166. Andrew testified that
Morlock came upstairs when Andrew was upstairs smoking meth. [CITATION] at 177. When
Andrew returned to the basement, Pomeroy was no longer moving and did not appear to
be breathing, so Andrew believed he was either unconscious or likely already dead. [CITATION]
at 166.
{¶16} Clayton, Andrew, and Mary all wrapped up Pomeroy's body in a blanket and
tarp, and secured it with a chain, an HDMI cord, a USB cord, some rope, bungee cords,
and duct tape. [CITATION] at 314-315, 318-320; [CITATION] at 166-167, 171, 178; [CITATION] at 85-86, 88-89,
110. They cleaned all the blood in the basement with a mop, bleach, dish soap, and water. Stark County, Case No. 2023 CA 00024
[CITATION]. They put the cleaning materials into a black trash bag,
along with the brick, broken pieces from the brick, some gloves, and Clayton's blood-
covered shoes. [CITATION].
{¶17} After wrapping the body and cleaning the basement, Andrew called Jordan
for a ride. [CITATION]. Jordan testified that he received a
"weird" phone call from Andrew asking for a ride, in which Andrew said, "Once was
beating, now is not; I need a ride." [CITATION]. Because he considered Andrew to be
"family," Jordan agreed to meet Andrew at his "uncle's house" at Ninth and McKinley. [CITATION].
{¶18} Jordan arrived in his white Chevy HHR, and parked on the side of the
building. [CITATION]. Clayton, Andrew, and Mary all brought Pomeroy’s
body up the stairs and outside. [CITATION]. Clayton approached Jordan
and said, "No matter what happens don't get out of the car or I'll kill your wife and your
daughter." [CITATION]. Clayton then told Andrew that if he had any doubts about
Jordan's ability to help get rid of the body he would just "end him" right there. [CITATION].
Clayton said, "If you don't think he can do it, I'll just do it myself." [CITATION]. Andrew
replied, “No, don’t do that. I'll be here with him." [CITATION]. Clayton and Andrew placed
Pomeroy's body in the back seat, along with the black trash bag. [CITATION]. Morlock returned to the scene around this time. [CITATION].
{¶19} Andrew got into the HHR and told Jordan to drive to his grandma's pig farm
in Louisville, Ohio. [CITATION]. Jordan refused, however, and they instead first drove to
Andrew's cousin's house at 17th and St. Elmo, where they stayed for about ten minutes.
[CITATION]. They then drove to a sand and gravel pit to dispose of the body, Stark County, Case No. 2023 CA 00024
but too many people were there, so Andrew told Jordan to keep driving. [CITATION]
While traveling just past the intersection of 12th and Hardington, Andrew told
Jordan to stop the vehicle. [CITATION] Andrew jumped out of the vehicle,
removed Pomeroy's body from the car, and dumped it off the side of the road. [CITATION]
They drove away, and Andrew later discarded the trash bag. [CITATION]
{¶20} On the evening of May 10, 2022, Deputy D'Metre House of the Stark County
Sheriff's Office was dispatched to Hardington Avenue after two citizens reported finding
a body wrapped up in a ditch on the side of the road. [CITATION]
Detective Derek Little of the Stark County Sheriff’s Office also responded to the scene. [CITATION]
At some point, Detective Little recognized Pomeroy and positively identified his body. [CITATION]
The Kidnapping, Felonious Assault, and Rape of Blake Waldrup
{¶21} Mary's ex-boyfriend Blake Waldrup [Blake] used to live with her and several
others in an apartment on Ninth Street. [CITATION]
Clayton moved in with them at some point and he began "seeing" Mary. [CITATION]
Mary told Clayton that Blake used to beat her and was very abusive, which upset Clayton. [CITATION]
Blake and Clayton got into an argument and fist fight one day and, after Blake
threw Clayton onto the ground and "embarrassed" him, Clayton retreated to the kitchen
to retrieve a knife. [CITATION]
Blake ran out the door and left his belongings behind, effectively moving out of the apartment for good. [CITATION]
{¶22} According to Clayton, he devised a plan sometime later with both Mary and
Morlock to lure Blake to the Correll house. [CITATION]
Mary's birthday is May 10th, and Stark County, Case No. 2023 CA 00024
Clayton testified that Mary wanted to get Blake over to the Correll house as a "birthday
present." [CITATION] On the evening of May 9th, Mary told Blake that she
wanted to be with him and asked him to come to the Correll house; Mary and a mutual
friend named Noah (aka "Country") met up with Blake in a park prior to heading to the
house. [CITATION] When Blake eventually arrived and
entered the house, Clayton held him at gunpoint. [CITATION] Clayton pistol-whipped Blake
repeatedly, and then Clayton, Mary, and a man named Kris all took Blake down into the
basement and continued beating him; Morlock soon joined them and participated in the
beatings. [CITATION] Waldrup testified the individuals in
the house were Mary, Clayton, and Morlock. [CITATION]
{¶23} Blake testified he was then taken to the basement of the house where he
was beaten with a tire iron, machete and a ratchet with a socket attached. [CITATION] Blake further testified that while he was in the basement his hands were
tied behind his back, then he was tied to the ceiling and beaten with a tire iron. [CITATION] Blake testified that while he was in the basement he saw Morlock only twice and that
Morlock put a sex toy in Blake’s rectum. [CITATION] Morlock also shot Blake
with some type of gel blaster BB gun. [CITATION]
{¶24} Blake testified that Mary and Clayton had sex in front of him and that Clayton
would use a big torch to burn Blake so he could stop his wounds from bleeding. [CITATION] Waldrup also stated that Clayton tried to cut his right ear off with the machete.
[CITATION]
{¶25} At one point, Blake managed to untie himself, which angered both Clayton
and Morlock, so they "beat [him] to hell" and tied him up again. [CITATION] Stark County, Case No. 2023 CA 00024
98. This time, they tied his arms behind his back, tied his feet together, and hung him in
the air from the rafters, face down. [CITATION] Mary wrote a note on a sheet of
paper and taped it up in the basement room where Blake was being held captive. [CITATION]
The note read: "What did Mary ever do to deserve everything you did to her?" [CITATION]; State’s Exhibit 18.
{¶26} Blake spent two to three months in the hospital afterward and endured many
surgeries. [CITATION] He was not able to speak or walk, so he required rehab, physical
therapy, and verbal therapy. [CITATION] At the time of trial, Blake still had scars on his
ankles and could not feel his feet. [CITATION] Blake admitted that he was "in and
out" of consciousness throughout the ordeal due to his injuries, but he specifically recalled
seeing Morlock at least "twice" or "a few times"; he remembered Morlock beating and
hurting him more than once, hitting him with the dildo, inserting the dildo into his rectum,
and helping to tie him up and hang him from the rafters. [CITATION]
{¶27} During Detective Little's interview of Morlock on May 13, 2023, Morlock
stated he doesn't go in the basement and didn't know anything about anyone being in the
basement because he's not home much. [CITATION]
The police investigations
{¶28} Dr. Alison Krywanczyk, the Deputy Medical Examiner at the Cuyahoga
County Medical Examiner's Office, performed the autopsy on Pomeroy’s body and
testified as an expert at trial. [CITATION] Dr. Krywanczyk testified that the cause
[SEGMENT 25]
of Pomeroy’s death was blunt and sharp force injuries. [CITATION] Based on the autopsy
report, the Stark County Coroner determined Pomeroy's death to be a homicide. [CITATION] Stark County, Case No. 2023 CA 00024
{¶29} While investigating Pomeroy's death, Detective Little spoke to Pomeroy's
probation officer and learned about a recent phone call from Buddy, who said he had
been robbed by Morlock, Clayton, and Mary, and that they stole his car. [CITATION] at 325-326,
347-348. Pomeroy's ex-girlfriend [Chastity] permitted the police to search through her cell
phone because Pomeroy often used it to communicate with people. [CITATION] at 326-327. The
police found a text message on her phone referencing a huge fight amongst several
people, in which Morlock was mentioned by name. [CITATION] at 327. Detective Little also read
a Canton police report and learned that Morlock lived at the Correll house with his
girlfriend, Bonnie, who was currently in jail. [CITATION] at 327-328. The police then listened to jail
calls between Morlock and Bonnie. [CITATION] at 328-332. In one call, they learned that Morlock
kicked Pomeroy out of the Correll house on either May 7th or 8th. [CITATION]; State’s
Exhibit 45. In another call, Morlock said that he kicked Pomeroy out because he stole
from them, and that Pomeroy "got beat up real good" and "got fucked up pretty good."
[CITATION] at 330-331.
{¶30} Taylor Loy works for the Adult Parole Authority and was Morlock's parole
officer at the time. [CITATION] at 58-60. She received a phone call regarding an alleged
kidnapping and robbery of Buddy that occurred at Morlock's house on Correll, which she
confirmed with the police report. [CITATION] at 61. In response, she coordinated a May 13th home
visit and search of the Correll house with multiple agencies. [CITATION] at 60. Lucas Shanklin of
the Jackson Police Department and Stark County Sheriff’s Office was one of the officers
assisting Loy that day. [CITATION] at 30-31. He testified that, due to the robbery complaint against
Morlock, there was a concern that firearms were in the house. [CITATION] at 31-32. Officer John Stark County, Case No. 2023 CA 00024
Korchnak of the Canton Police Department also assisted that day and initially helped to
set up a perimeter around the house. [CITATION].
{¶31} The police and parole officers first made contact only with Mary at the
Correll house. [CITATION]. Mary came outside and said Morlock was not there, but also
said they were welcome to come inside and look for him. [CITATION]. Mary talked in
circles, did not make much sense, and repeatedly denied that anyone else was in the
house; but she ultimately admitted that her boyfriend, Clayton, was upstairs. [CITATION]. Clayton was soon found hiding in an upstairs closet with a loaded gun, but officers
were able to drag him out of the closet by his feet and arrest him. [CITATION].
{¶32} While conducting a protective sweep of the house for anyone else who
might be hiding, Officer Korchnak asked Loy if the basement had been cleared yet, and
she said no. [CITATION]. The officers observed that the door to the basement had a silver,
metal slide lock on it. [CITATION]. They unlocked the door and proceeded
down into the dark, "deplorable" basement, which had no windows and very dim lighting.
[CITATION]. Loy was wearing her body cam at the time, and the body cam
footage was entered into evidence. [CITATION]; State’s Exhibit 32. The officers soon
came across a wooden door in the basement that was not on any hinges, but was simply
propped up or jammed in front of an opening into a small, cellar room. [CITATION]. Inside that room, Officer Korchnak was the first to observe what he thought was
a deceased male lying on the floor, covered by a blanket, and not moving; he promptly
notified the others. [CITATION]. Just then, Blake, the body lying on the floor,
gasped for air and woke up, though he could not speak clearly or coherently. [CITATION],
====== End of Part of a Court Ruling ====== Stark County, Case No. 2023 CA 00024
68-69. As they tried standing Blake upright, he jerked back with his left hand and removed
a dildo from his rectum. [CITATION] at 55-56, 69. Blake was ushered outside and, although the
officers struggled to understand him, Officer Korchnak recalled hearing Blake mumbling
the phrase, "They wouldn't let me go." [CITATION] at 56, 71. They eventually identified Blake
and transported him to the hospital. [CITATION] at 57, 69. They informed the officers investigating
Pomeroy's death that another victim with similar injuries had been found. [CITATION] at 332.
{¶33} The officers sought and obtained a search warrant for the house. [CITATION] at 333,
347; [CITATION] at 57. While awaiting the warrant, Mary informed the police that Morlock could
be found near Ninth and McKinley. [CITATION] at 42, 72. Officers went to that area and, after a
brief foot pursuit, they cornered Morlock in an apartment building and he surrendered. [CITATION]
at 43, 72-74, 77-81.
{¶34} Detective Little and Detective Mark Diels of the Canton Police Department
interviewed Morlock on May 13th and May 16th. [CITATION] at 334-337; [CITATION] at 89-90. Detective
Little testified that Morlock told him that the last time he had seen Pomeroy was
approximately two months prior. [CITATION] at 335.
{¶35} Detective Little testified that he again spoke to Morlock on May 16, 2023.
Morlock told the detective that Pomeroy had been staying at his house for five days but
that he had to kick him out because Pomeroy stole from him. [CITATION] at 336-337.
{¶36} Detective Little testified Morlock then said he last saw Pomeroy in the
basement at a house on Ninth and McKinley. [CITATION] at 337. Detective Little also testified that
Morlock told him Mary, Clayton, and Andrew were also present in the basement with
Pomeroy and that they were beating Pomeroy up pretty good, hitting him, and kicking him
all over his body. [CITATION] at 337-338. Stark County, Case No. 2023 CA 00024
{¶37} Detective Little testified a search warrant was obtained for the home on
Ninth and McKinley and that during the search a box of gloves and a partially used roll of
duct tape were found on a coffee table in the basement. [CITATION]. Upon cross
examination, Detective Little testified that Morlock denied having anything to do with
Pomeroy. [CITATION].
{¶38} Andrew's name came up during the interviews, and the police learned that
a vehicle was involved. [CITATION]. During an interview with Andrew, he told police exactly
where they could find the Chevy HHR that was involved. [CITATION]. Police searched
the HHR on May 25th and found some cords on the back floorboard that matched the
cords found wrapped around the tarp and Pomeroy's body. [CITATION].
{¶39} On January 1, 2023, Detective Diels received information that more
evidence was possibly still inside the Correll house. [CITATION]. Detective Diels learned
that the machete and hatchet were possibly concealed inside of a basement wall, so he
returned to the house and retrieved the evidence. [CITATION].
The jury’s decision
{¶40} The jury ultimately found Morlock guilty of murder (count 2), kidnapping
(count 3), aggravated robbery (count 4), grand theft of a motor vehicle (count 5),
kidnapping [to terrorize, or to inflict serious physical harm on the victim] [Blake Waldrup],
(count 6), felonious assault (count 8), and rape (count 9). They found him not guilty of
aggravated murder (count 1), kidnapping [to engage in sexual activity] [Blake Waldrup]
(count 7), gross abuse of a corpse (count 10), and tampering with evidence (count 11). Stark County, Case No. 2023 CA 00024
Morlock’s Sentence
{¶41} On January 24, 2023, the trial judge sentenced Morlock to an aggregate
prison term of forty-three years to life, and ordered him to pay $5,417.00 in restitution. On
[SEGMENT 26]
April 6, 2023, the court re-sentenced Morlock to the same sentence, but also classified
him as a Tier III sex offender and properly notified him of his registration requirements.
Assignments of Error
{¶42} Morlock raises four Assignments of Error,
{¶43} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN CONVICTIONS AGAINST APPELLANT THEREFORE THE CONVICTIONS
MUST BE REVERSED.
{¶44} “II. THE APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.
{¶45} “III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION
10 OF THE OHIO CONSTITUTION.
{¶46} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED
$5,417 IN RESTITUTION TO BUDDY MYERS WITHOUT HOLDING A RESTITUTION
HEARING TO PROVIDE PROOF OF ECONOMIC LOSS BY A PREPONDERANCE OF
THE EVIDENCE AS REQUIRED BY STATUTE.”
I.
{¶47} In his First Assignment of Error, Morlock argues that his convictions for
murder [CITATION] (count 2), kidnapping [CITATION] (count 3), aggravated robbery Stark County, Case No. 2023 CA 00024
[Buddy Myers] (count 4), and grand theft [Buddy Myers] (count 5) are not supported by
sufficient evidence.
Standard of Appellate Review
{¶48} The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. [CITATION]. The test for the sufficiency of the evidence
involves a question of law for resolution by the appellate court. [CITATION], ¶13. “This naturally entails a review of the elements of the charged offense
and a review of the state's evidence.” [CITATION], ¶13.
{¶49} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. [CITATION], paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in [CITATION], ¶30. “The relevant inquiry is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.” [CITATION] at paragraph two of the syllabus. [CITATION], ¶19. Thus, “on review for evidentiary sufficiency we do not Stark County, Case No. 2023 CA 00024
second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,
[the evidence] would convince the average mind of the defendant's guilt beyond a
reasonable doubt.’” [CITATION], quoting Jenks at paragraph two of the syllabus; [CITATION]. We will
not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could
not reach the conclusion reached by the trier-of-fact.’” [CITATION], quoting [CITATION].
Issue for Appellate Review: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
that Morlock was guilty beyond a reasonable doubt of the murder of Pomeroy
{¶50} Morlock was convicted of murder in violation of R.C. 2903.02(A), which
states, “No person shall purposely cause the death of another or the unlawful termination
of another's pregnancy.” The cause of Pomeroy’s death was blunt and sharp force
injuries. 2T. at 147. Based on the autopsy report, the medical examiner concluded
Pomeroy's death was a homicide. 2T. at 130-131, 148.
{¶51} R.C. 2901.22 Culpable mental states, provides:
(A). A person acts purposely when it is his specific intention to cause
a certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is his specific intention to engage in conduct of that
nature. Stark County, Case No. 2023 CA 00024
{¶52} Morlock was also charged with aiding and abetting Clayton Justin Smart,
Mary Ann Soliday, and/or Andrew Charles Williams in the commission of this offense.
R.C. 2923.03(A)(2) Complicity provides, in relevant part,
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense;
{¶53} Anyone complicit in the commission of an offense by aiding and abetting
the principal offender "shall be prosecuted and punished as if he were a principal
offender." R.C. 2923.03(A)(2)/(F). The instructions given the jury in the case at bar
properly permitted the jury to find Morlock guilty of murder based on a finding that he
aided and abetted his codefendants in the commission of murder, and therefore was
complicit in the commission of the murder.
{¶54} It is true that a person’s mere association with a principle offender is not
enough to sustain a conviction based on aiding and abetting. [CITATION]. With respect to the requirements for
a conviction for aiding and abetting, the Supreme Court of Ohio has stated,
To support a conviction for complicity by aiding and abetting pursuant
to R.C. 2923.03(A)(2), the evidence must show that the defendant
supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the defendant shared the Stark County, Case No. 2023 CA 00024
criminal intent of the principal. Such intent may be inferred from the
circumstances surrounding the crime.
[CITATION]
{¶55} Aiding and abetting may be shown by both direct and circumstantial
evidence and participation may be inferred from presence, companionship, and conduct
before and after the offense is committed. Paskins, ¶27, citing [CITATION], citing [CITATION]; See also, [CITATION], quoting [CITATION].
{¶56} Aiding and abetting may also be established by overt acts of assistance
such as driving a getaway car or serving as a lookout. Paskins, ¶28, citing [CITATION]. See also, [CITATION].
{¶57} “The court must view the evidence in the light most favorable to the
prosecution and defer to the trier of fact on questions of credibility and the weight assigned
to the evidence. [CITATION].
{¶58} Morlock’s sole argument on appeal centers upon his contention that the
state failed to present sufficient evidence that he purposely caused the death of Pomeroy. Stark County, Case No. 2023 CA 00024
[Appellant’s brief at 16]. He further argues that "no testimony" was presented to establish
that he acted with purpose to kill Pomeroy. [Id.]
{¶59} Contrary to Morlock’s arguments, sufficient evidence was presented to
prove beyond a reasonable doubt that Morlock aided and abetted his co-defendants in
the murder of Pomeroy.
{¶60} Evidence was presented that Morlock, Clayton and Andrew were angry at
Pomeroy because they believed he had stolen property belonging to them while living at
the Correll house. Evidence was presented that Clayton, Morlock, Mary, and Andrew all
went to an abandoned house where they believed they would find Pomeroy. [CITATION] The group then dragged Pomeroy into the basement of a nearby apartment,
inhabited by a man named Rob. [CITATION] Clayton testified
that everybody agreed to kill Pomeroy. [CITATION]
{¶61} Clayton testified they all started beating up Pomeroy with their fists at first,
but then Morlock hit Pomeroy with a brick. [CITATION] Clayton and Mary also hit
Pomeroy with a brick. Id. Mary also kicked Pomeroy and struck him with a machete on
his fingers and back. [CITATION] Clayton testified that Pomeroy died in that basement,
and that he was dead before Morlock left. [CITATION]
{¶62} Even if Morlock had left the basement before Pomeroy was dead, the
evidence establishes that he was present and participated in the beating of Pomeroy with
the others. Morlock not only witnessed the others throwing bricks at Pomeroy, he himself
hurled them at Pomeroy.
{¶63} The trier of fact may infer an intention to kill from the surrounding
circumstances where the natural and probable consequence of a defendant’s actions is Stark County, Case No. 2023 CA 00024
[SEGMENT 27]
to produce death. [CITATION] paragraph
five of the syllabus. The testimony of the medical examiner established that Pomeroy had
several skull fractures. Thus, the natural and probable consequences of three people
hurling bricks at a defenseless person’s head is to produce death. It matters not whether
Morlock was actually in the room when Pomeroy died as the result of the severe beatings
inflicted by each one of the participants. Morlock was not an innocent bystander who
merely happened along; he was a willing participant.
Where only such unlawful act was contemplated in the original
conspiracy, although not identical with or similar to the criminal act charged,
if the conspired unlawful act and the manner of its performance would be
reasonably likely to produce death, each conspirator is equally guilty with
the principal offender, as an aider and abettor in the homicide, although
such aider and abettor was neither present nor had knowledge of the
physical killing or of the weapon used.
[CITATION] syllabus at para. 2. See also, [CITATION],
{¶64} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Morlock did at the very least aid and abet another in the commission of murder. We hold,
therefore, there was sufficient evidence to support Morlock’s conviction for the offense of
Murder. Stark County, Case No. 2023 CA 00024
Issue for Appellate Review: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
that Morlock was guilty beyond a reasonable doubt of the kidnapping, aggravated
robbery, and grand theft with respect to Buddy Myers.
{¶65} Morlock next contends that the state did not present sufficient evidence to
prove beyond a reasonable doubt that Morlock aided or abetted in the commission of
Kidnapping, Aggravated Robbery, or Grand Theft with respect to Buddy Myers.
{¶66} Morlock was charged with kidnaping in violation of R.C. 2905.01(A)(2),
(A) No person, by force, threat, or deception, ... by any means, shall
remove another from the place where the other person is found or restrain
the liberty of the other person, for any of the following purposes:
***
(2) To facilitate the commission of any felony or flight thereafter;
{¶67} Morlock was further convicted of aggravated robbery in violation of R.C.
2911.01(A)(1) provides,
(A) No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under
the offender’s control and either display the weapon, brandish it, indicate
that the offender possesses it, or use it;
{¶68} Finally, with respect to Buddy, Morland was convicted of Grand theft of a
Motor Vehicle in violation of R.C. 2913.02(A)(1) provides, Stark County, Case No. 2023 CA 00024
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the property or
services in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
{¶69} Morlock was also charged with aiding and abetting Clayton, Mary, and/or
Bonnie June Metz in the commission of these offenses.
{¶70} Evidence was presented that Morlock and Bonnie argued over her
allegations that her ex-boyfriend and father of her children, Buddy had raped her one time
while Morlock was away. 3T. at 68. Morlock, Clayton, Mary and Bonnie devised a plan to
deceive Buddy into believing Mary wanted to have sex with him in order to lure Buddy to
the home to exact revenge. Buddy fell for the deception, came to the house and followed
Mary inside, while Morlock, Clayton, and Bonnie all lied in wait in Morlock's bedroom.
{¶71} Clayton held a gun to Buddy’s head and told him to give him everything he
had on him. Buddy surrendered his cell phone, wallet, and car keys. Mary and Morlock
were present when these events transpired. While holding Buddy at gunpoint, Morlock
and Clayton both interrogated him about the rape allegations for perhaps ten to fifteen
minutes. Evidence was presented that Buddy feared for his life and just wanted to leave.
{¶72} Clayton and Mary took Buddy's cell phone, wallet, and car keys, and drove
his car to a local restaurant, where they stole the stereo system out of it and abandoned
the vehicle. 1T. at 260; 3T. at 75. Clayton later sold the stereo system. 3T. at 76. Buddy’s
car was never returned to him. Stark County, Case No. 2023 CA 00024
{¶73} The evidence presented was that Morlock willingly participated in the
deception, detention and theft. Morlock was aware that Clayton had a gun that he used
to threaten Buddy into compliance. Morlock concedes that his codefendants restrained
B u d d y’ s liberty and forcibly took his vehicle. Contrary to Morlock’s assertions evidence
was presented that he was in a bedroom with his codefendants in a plan to confront Buddy
about the rape allegations, he questioned Buddy while Buddy was handcuffed to the futon
and was being threatened with a gun. The entire reason Buddy was lured to the residence
was Morlock was angry because Bonnie told him Buddy had raped her one time while
Morlock was away.
{¶74} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Morlock did at the very least aid and abet another in the commission of kidnapping,
aggravated robbery and grand theft of a motor vehicle. We hold, therefore, there was
sufficient evidence to support Morlock’s conviction for the offenses of kidnapping,
aggravated robbery and grand theft of a motor vehicle.
{¶75} For the forgoing reasons, Morlock’s First Assignment of Error is overruled.
II.
{¶76} In his Second Assignment of Error, Morlock argues his convictions are
against the manifest weight of the evidence. Stark County, Case No. 2023 CA 00024
Standard of Appellate Review – Manifest Weight
{¶77} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. [CITATION], superseded by constitutional amendment on other grounds as
stated by [CITATION].
{¶78} Weight of the evidence addresses the evidence's effect of inducing belief.
[CITATION]. When a court of
appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with
the fact finder’s resolution of the conflicting testimony. [CITATION], citing [CITATION] (quotation marks omitted); [CITATION], citing [CITATION].
{¶79} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” [CITATION],
quoting [CITATION]. The Ohio Supreme Court has emphasized: “‘[I]n determining whether the judgment
below is manifestly against the weight of the evidence, every reasonable intendment and Stark County, Case No. 2023 CA 00024
every reasonable presumption must be made in favor of the judgment and the finding of
facts. * * *.’” [CITATION], quoting [CITATION], fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at
191–192 (1978).
{¶80} As one Court has explained,
When faced with a manifest weight of the evidence challenge, we
must consider whether the state “carried its burden of persuasion” before
the trial court. [CITATION]; see [CITATION]. Unlike the
burden of production, which concerns a party’s duty to introduce enough
evidence on an issue, the burden of persuasion represents a party’s duty to
convince the factfinder to view the facts in his or her favor. [CITATION]. Therefore, in order for us to conclude that the factfinder’s adjudication
of conflicting evidence ran counter to the manifest weight of the evidence—
which we reserve for only the most exceptional circumstances—we must
find that the factfinder disregarded or overlooked compelling evidence that
weighed against conviction. [CITATION]. We accordingly sit as a “thirteenth juror” in this
respect. Id.
[CITATION]
{¶81} Further, to reverse a jury verdict as being against the manifest weight of the
evidence, a unanimous concurrence of all three judges on the court of appeals panel Stark County, Case No. 2023 CA 00024
[SEGMENT 28]
reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio
Constitution. [CITATION], ¶ 2-4,
citing Thompkins at paragraph four of the syllabus.
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the convictions must be reversed and a new
trial ordered
{¶82} Morlock makes two arguments in support of his contention that the jury
clearly lost their way and created a manifest miscarriage of justice by convicting him. First,
Morlock contends that the testimony was contradictory between Clayton and Andrew.
Specifically, Morlock challenges the testimony that Pomeroy was dead before Morlock
left the basement.
{¶83} As we noted in our disposition of Morlock’s First Assignment of Error,
because he was also charged with aiding and abetting, it does not matter whether he was
present at the time Pomeroy expired. Testimony was presented, and not refuted, that
Morlock joined in when the codefendants were hurling bricks at the helpless victim. He
was aware of the actions of his codefendants and noted his acceptance of their actions
by joining in with their beating of Pomeroy. It matters not which one threw the brick that
fractured Pomeroy’s skull; rather, each individual is responsible for the death.
{¶84} Further, the jury was instructed,
You are not required to believe the testimony of any witness simply
because the witness was under oath. You may believe or disbelieve all or
any part of the testimony of any witness. It is your duty to decide what Stark County, Case No. 2023 CA 00024
testimony to believe and what testimony not to believe. The testimony of
one witness believed by you is sufficient to prove any disputed fact.
3T. at 160.
{¶85} Morlock next challenges the fact that the police did not investigate other
individuals.
{¶86} “Nothing in the record indicates what kind of testimony [the witnesses] could
have provided. Establishing that would require proof outside the record, such as affidavits
demonstrating the probable testimony. Such a claim is not appropriately considered on a
direct appeal.” [CITATION] (rejecting claim of ineffectiveness for counsel’s failure to utilize an expert on eyewitness
identification); [CITATION] (rejecting claim of ineffectiveness for counsel’s failure to pursue MRI testing in the penalty
phase). There is nothing in the record from which we can determine whether such
evidence would have been favorable to Morlock and caused the outcome of the trial to
be different. [CITATION]
{¶87} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” [CITATION], superseded by constitutional amendment on other grounds as stated
by [CITATION], quoting [CITATION]. Based upon the entire record in this matter we find
Morlock's convictions are not against the manifest weight of the evidence. To the contrary, Stark County, Case No. 2023 CA 00024
the jury appears to have fairly and impartially decided the matters before them. The jury
heard the witnesses, evaluated the evidence, and was convinced of Morlock's guilt.
{¶88} Upon review of the entire record, weighing the evidence and all reasonable
inferences as a thirteenth juror, including considering the credibility of witnesses, we
cannot reach the conclusion that the trier of facts lost its way and created a manifest
miscarriage of justice. We do not find the jury erred when it found Morlock guilty. The fact
that the jury chose to believe the testimony of the state’s witnesses, some of which was
contradictory, does not, in and of itself, render his convictions against the manifest weight
of the evidence. The state presented testimony and evidence from which the jury found
all the essential elements of the offenses proven beyond a reasonable doubt.
{¶89} Upon careful consideration of the record in its entirety, we do not find that
the jury disregarded or overlooked compelling evidence that weighed against conviction.
{¶90} Morlock’s Second Assignment of Error is overruled.
III.
{¶91} In his Third Assignment of Error, Morlock argues he was denied effective
assistance of counsel because counsel failed to adequately cross-examine the state’s
witnesses.
Standard of Appellate Review
{¶92} To obtain a reversal of a conviction on the basis of ineffective assistance of
counsel, the defendant must prove (1) that counsel's performance fell below an objective
standard of reasonableness, and (2) that counsel's deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.
[CITATION] Stark County, Case No. 2023 CA 00024
693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a
court's need to consider the other. [CITATION]
Issue for Appellate Review: Whether there is a reasonable probability that, but
for counsel's failure to highlight inconsistencies in the testimony of the state’s witnesses
through cross-examination, the result of the proceeding would have been different.
{¶93} The scope of cross-examination falls within the ambit of trial strategy, and
debatable trial tactics do not establish ineffective assistance of counsel. [CITATION]. In addition, to fairly assess counsel’s
performance, “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” [CITATION].
{¶94} However, even assuming arguendo counsel’s failure to cross-examine the
witnesses concerning inconsistencies reflected deficient performance, Morlock cannot
establish prejudice under [CITATION]. We note that in his brief, Morlock cites
inconsistencies in the testimony of various state witnesses. Thus, the jury was aware that
some of the facts were inconsistent between the state’s witnesses. Counsel did highlight
in his cross-examination of Jordan that Clayton and Andrew were “the only two people in
the car…” 2T. at 118. Counsel may have made a strategic decision to not ask about
Morlock choosing to rely instead on the fact that Jordan did not mention Morlock during
his direct testimony. Stark County, Case No. 2023 CA 00024
{¶95} In addition, the jury was instructed,
A discrepancy in a witness’ testimony or between his or her
testimony and that of another, if there are any, does not necessarily mean
that you should disbelieve the witness, as people commonly forget facts or
recollect them erroneously after the passage of time. You are all certainly
aware of the fact that two persons who are witness to an incident may often
see or hear it differently. In considering… a discrepancy in a witness’
testimony you should consider whether such testimony concerns an
important fact or a trivial one.
3T. at 161. The jury was further instructed that Clayton, Andrew and Jordan’s testimony
“should be viewed with grave suspicion and weighed with great caution…” because they
were said to be accomplices. 3T. at 162.
{¶96} We reject Morlock’s arguments concerning discrepancies or inconsistency’s
in Clayton’s testimony for the reasons explained in our disposition of Morlock’s First and
Second Assignments of Error.
{¶97} Morlock has not shown that there was a reasonable probability that, but for
counsel’s error, the result of his trial would have been different.
{¶98} Morlock’s Third Assignment of Error is overruled.
IV.
{¶99} In his Fourth Assignment of Error, Morlock contends that the trial court erred
and abused its discretion by failing to hold a restitution hearing to require the s tate to
prove the restitution amount by a preponderance of the evidence. Stark County, Case No. 2023 CA 00024
{¶100} We review felony sentences, including sentences ordering restitution, using
the standard of review set forth in R.C. 2953.08. [CITATION], ¶31. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a
sentence and remand for resentencing where we clearly and convincingly find that either
the record does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, [CITATION], ¶28.
{¶101} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
[CITATION], paragraph three of the
syllabus. See also, [CITATION].
“Where the degree of proof required to sustain an issue must be clear and convincing, a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” [CITATION]
at 477, 120 N.E.2d 118.
Restitution
{¶102} Morlock's counsel stated his intention to object to restitution specifically "on
the grounds of indigency * * *." Sent. T., Jan. 24, 2023 at 13. When the trial court later
[SEGMENT 29]
ordered restitution in open court, counsel only made a general objection "to the restitution
order." Id. at 19.13 Taken together this would appear to indicate that Morlock objected to
Counsel made no objections to restitution during the re-sentencing hearing that took place on
Apr. 6, 2023. Stark County, Case No. 2023 CA 00024
the restitution order on the ground that he was indigent and therefore unable to pay, not
that he disputed the amount the trial judge order that he pay to Buddy. On appeal, Morlock
objects to the amount of restitution, arguing the state failed to prove the amount by a
preponderance of the evidence. [Appellant’s brief at 24]. We find that Morlock failed to
specifically tell the trial judge he was objecting to the amount of restitution or that he was
asking for a hearing on the amount of restitution. Accordingly, he has waived all but plain
error.
{¶103} Morlock did not raise plain error with respect to restitution during the
sentencing hearing in his assignments of error or argument in this Court. Because he
does not claim plain error on appeal, we need not consider it. See, [CITATION] (appellate court need not consider plain error where appellant fails to timely raise plain-error claim); [CITATION], ¶ 25, citing [CITATION] ("when a claim is forfeited on appeal and the appellant
does not raise plain error, the appellate court will not create an argument on his behalf"); [CITATION], ¶41.
{¶104} However, even if Morlock had raised plain error on appeal, he would not
prevail. Stark County, Case No. 2023 CA 00024
{¶105} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a
sentence in order to compensate the victim for economic loss. “A trial court has discretion
to order restitution in an appropriate case and may base the amount it orders on a
recommendation of the victim, the offender, a presentence investigation report, estimates
or receipts indicating the cost of repairing or replacing property, and other information,
but the amount ordered cannot be greater than the amount of economic loss suffered as
a direct and proximate result of the commission of the offense.” [CITATION] (emphasis
added); R.C. 2929.18(A)(1). A court’s order of restitution must be supported by
competent, credible evidence. [CITATION]
{¶106} In [CITATION], the Ohio Supreme Court noted,
R.C. 2913.02(B)(5) states, “If the property stolen is a motor vehicle,
a violation of this section is grand theft of a motor vehicle, a felony of the
fourth degree,” regardless of the value of the motor vehicle. A trial court
choosing to order restitution in a case of grand theft of a motor vehicle is
not restricted to the value corresponding to a fourth-degree felony and may
instead award restitution pursuant to R.C. 2929.18(A)(1).
[CITATION], ¶24.
{¶107} “[W]hen a vehicle has been totally destroyed, ‘the measure of damages is
its reasonable market value immediately before destruction.’” [CITATION], quoting [CITATION]. Thus, the economic loss suffered by the victim when a Stark County, Case No. 2023 CA 00024
vehicle has been destroyed is the fair market value of the vehicle prior to the accident.
See id. at ¶ 12. See, [CITATION]
¶8.
{¶108} The record indicates that the state represented to the trial judge that Buddy
estimated his car’s value at $3,300.00. Sent. T., Jan 24, 2023 at 9. R.C. 2929.18(A)(1)
permits a trial judge to accept the victim’s recommendation. Receipts were admitted to
show $499.00 to replaced his cell phone and his investment in the automobile’s stereo
system to be $1,618.22. Id.
{¶109} We find that the trial judge based her order of restitution on the amount of
the economic loss suffered by the victim as a direct and proximate result of the
commission of the offenses. Had Morlock asked the trial judge for a hearing on the
amount of restitution or otherwise alerted the trial judge that he disputed the amount, we
have no doubt that the trial judge would have held a hearing. Morlock’s failure to raise the
issue precluded the trial judge from preventing or correcting any error.
{¶110} Notice of plain error “is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” [CITATION] We do
not find a manifest miscarriage of justice occurred in this case. Accordingly, we decline
to find plain error.
{¶111} Morlock’s Fourth Assignment of Error is overruled. Stark County, Case No. 2023 CA 00024
{¶112} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Wise, J., concur
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[Cite as [CITATION].]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2023CA00108
ERROL G. FRANK, III
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Case No. 2023CR0721
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 15, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE EDWARD R. La RUE
Prosecuting Attorney
Lakeside Avenue, Suite 210
Stark County, Ohio Cleveland, Ohio 44113
VICKI L. DeSANTIS
Assistant Prosecuting Attorney
Appellate Division
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413 Stark County, Case No. 2023CA00108
Hoffman, J.
{¶1} Defendant-appellant Errol G. Frank, III, appeals his convictions and
sentence entered by the Stark County Court of Common Pleas on two counts of murder,
one count of felonious assault, one count of tampering with evidence, and three three-
year firearm specifications, following a jury trial. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On May 18, 2023, the Stark County Grand Jury indicted Appellant on one
count of murder, in violation of R.C. 2903.02(A), an unspecified felony, with an attendant
three-year firearm specification; one count of murder, in violation of R.C. 2903.03(B), an
unspecified felony, with an attendant three-year firearm specification; one count of
felonious assault, in violation of R.C. 2903.11(A)(2), a felony of the second degree; and
one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the
third degree. Appellant appeared for arraignment on May 19, 2023, and entered a plea
of not guilty to the Indictment.
{¶3} On May 24, 2023, Appellant executed a limited waiver of his right to a
speedy trial. Trial was scheduled for July 25, 2023. Appellant filed a motion for pre-trial
release, which the trial court denied. Prior to trial, Appellant filed a notice of self-defense.
{¶4} The matter proceeded to jury trial on July 25, 2023. The following evidence
was presented at trial:
{¶5} At approximately 3:00 p.m. on March 22, 2023, Patrolman Trent Abel with
the City of Canton Police Department and his partner, Officer Stern, were dispatched to
the area of 851 Rowland Avenue, NE, in response to a shooting. The officers arrived at
the scene and encountered a group of people standing at the corner of The O’Jays
Parkway, NE, and Peel Place, NE. As Patrolman Abel exited his cruiser, he observed Stark County, Case No. 2023CA00108
the victim laying on his back, facing west. Patrolman Abel noticed the victim, whose head
and face were covered in blood, had “a bullet wound his forehead area.” Trial Transcript,
Vol. I, p. 129.
{¶6} Patrolman Abel wrapped the victim’s head with a compression bandage and
applied pressure to the wound. As Patrolman Abel checked the victim for other injuries,
he observed a bullet hole, which appeared to be an exit wound, in the victim’s abdomen
area. Medics arrived and transported the victim to the hospital.
{¶7} Patrolman Abel searched the area for evidence and located some of the
victim’s personal property, a bag containing an unknown white substance, and one spent
shell casing. Patrolman Abel maintained security of the area while detectives and the ID
Bureau processed the scene.
{¶8} Paul George, a retired United Methodist pastor, testified he was a volunteer
at his church, and on March 22, 2023, was driving a church van on the southwest side of
Canton, picking up youth to take them to church. George, his wife, and four youths were
traveling just north of 9th Street, when they heard what sounded like a gunshot. George
could not ascertain the direction from which the sound had come.
{¶9} As George tried to determine what was happening, he observed two male
individuals sprinting out of a grassy knoll. George recalled, “At first we thought somebody
just fired a shot in the air and everyone’s clearing, but as they went across the street,
when they hit this alley, the first man fell and you can see the other one was chasing him.”
Tr. at p. 143. The first male fell face first, then turned around with his hands up. George
stated the second male had something in his hand. He heard two more gunshots and the
first male “collapsed down on his face.” Tr. at p. 145. George called 9-1-1. After ensuring Stark County, Case No. 2023CA00108
the male with the gun had cleared the area, George went to check on the victim. Another
man had reached the victim first and turned the victim onto his back. George noticed the
victim had a gunshot wound “[r]ight in the middle of the forehead.” Tr. at p. 148.
{¶10} George indicated the shooter was wearing a hat or had dreadlocks, was
approximately 6’0” or 6’1” tall, and held the gun in his right hand. He described the victim
as African-American, a little heavier built, and not wearing shoes. George estimated the
shooter was eight (8) feet away from the victim.
{¶11} Detective Daniel Szaniszlo with the City of Canton Police Department
testified, on March 22, 2023, at approximately 5:00 p.m., he received a call from
Lieutenant Talkington, asking him to assist in the homicide investigation. Upon his arrival
at the scene, officers briefed Detective Szaniszlo. He learned the victim was Melvin
Stevenson, he had suffered several gunshot wounds, and had succumbed to those
injuries. Detective Szaniszlo also learned the suspect was a black male with what was
described as dreadlocks. After running Stevenson through police databases, Detective
Szaniszlo discovered Stevenson had been married to a Tricia Stevenson, who had
changed her name to Tricia Frank. Through a Facebook search, the detective discovered
Tricia Frank was newly married to an individual identifying himself as “Young Veteran.”
A picture in Young Veteran’s Facebook profile matched the description of the suspect.
Young Veteran was subsequently identified as Appellant.
{¶12} With this information, detectives obtained video footage from city street
cameras and the video cameras they were able to locate. Detectives learned Appellant
drove a silver Mazda van. Video footage from the city street cameras revealed a silver
Mazda van in the area of the shooting. Detectives ran the license plate of the silver Mazda Stark County, Case No. 2023CA00108
van and discovered the vehicle was registered to Appellant. The Critical Response Team
began surveillance in the area of Appellant’s residence. When Appellant and Tricia Frank
left their home, officers effected a stop of their vehicle. Appellant and Tricia Frank were
transported to police headquarters. Detectives Szaniszlo and Romanin executed a search
warrant on Appellant’s residence.
{¶13} Vincent Romanin, a detective with the City of Canton Police Department,
testified he responded to the scene after hearing the radio call dispatching patrol units to
a shooting incident. Upon his arrival, paramedics were placing the victim onto a gurney
and transporting him to the hospital. Detective Romanin conferred with patrol officers,
who identified two witnesses. The detective briefly interviewed the witnesses at the
scene, and spoke with Paul George a second time at the police department.
{¶14} Detective Romanin explained how he and other investigators identified
Appellant as the suspect. Investigators learned Appellant drove a silver Mazda MPV, a
van style vehicle. Upon reviewing video footage from the area near the time of the
incident, a Mazda MPV is observed on camera leaving the area immediately after the
incident. Detective Romanin was able to confirm the Mazda MPV on the video was
registered to Appellant. He and other investigators consulted with the Coordinated
Response Team (“the CRT”), which then attempted to locate the vehicle. The CRT was
unable to locate the Mazda MPV, but, upon checking an address associated with
Appellant, observed a vehicle which was registered to Tricia Frank. The CRT conducted
surveillance on the residence. After two individuals entered the vehicle registered to
Tricia Frank and drove away from the residence, a member of CRT initiated a traffic stop
of the vehicle. The occupants of the vehicle were Appellant and Tricia Frank. Appellant Stark County, Case No. 2023CA00108
[SEGMENT 2]
and Tricia Frank were transported to Canton Police Department, where they were
interviewed by Detective Romanin.
{¶15} Detective Romanin summarized his interview with Appellant, noting
Appellant was not forthcoming and untruthful about what had occurred. Appellant told
Detective Romanin he had received a phone call from Tricia Frank, during which Tricia
Frank told Appellant she had observed Stevenson. Tricia Frank gave Appellant
Stevenson’s specific location and a description of the clothes he was wearing. Appellant
then went in search of Stevenson. Appellant initially observed Stevenson walking on 12th
Street, near Nimisila Park. Appellant drove around the area until he was able to intercept
Stevenson. Appellant explained a confrontation ensued during which he discharged a
firearm into Stevenson. Appellant left the area, returned home, and told Tricia Frank what
had occurred. Detective Romanin stated Stevenson was traveling a couple of miles away
from Appellant’s neighborhood, in the opposite direction. During the interview, Appellant
told Detective Romanin he was scared for his wife and daughter, but not for himself.
{¶16} While the video of Detective Romanin’s interview with Appellant was played
for the jury, Detective Romanin explained the inconsistencies in Appellant’s responses,
adding Appellant’s statements did not make sense or were not supported by the
information the police had gathered. Video footage of Stevenson walking with his arms
swinging by his sides in the area prior to the shooting was played for the jury. Contrary to
statements made by Appellant during the interview, Stevenson was not carrying a bag
and did not have his hands in his pockets.
{¶17} Detective Romanin testified he collected cell phones belonging to Appellant
and Tricia Frank and reviewed the contents of the phones for communications, call logs, Stark County, Case No. 2023CA00108
text messages, and FaceChat messages. Detective Romanin indicated there were
several communications between Appellant and Tricia Frank on March 22, 2023, to wit:
a phone call placed by Tricia Frank to Appellant at 2:46 p.m., which lasted 15 minutes; a
cancelled call at 3:00 p.m.; and a FaceTime video call at 3:01 p.m., which lasted 7
minutes. Neither Appellant’s phone nor Tricia Frank’s phone revealed any
communications from Stevenson.
{¶18} In addition to Paul George, Detective Romanin spoke with another witness,
Ivan Toe, who lived in the immediate vicinity of the shooting. Toe heard a commotion
outside, then gunshots. When Toe went outside to find out what was happening, he
observed the suspect running southbound away from the area.
{¶19} City of Canton Police Officer Randy Weirich, an evidence technician in the
crime scene unit, testified he was dispatched to Appellant’s residence to photograph and
collect evidence. In the garage, Officer Weirich collected a Taurus pistol, model 709, with
one round in the chamber and another round in the magazine, which was located in a
clear plastic bag in a rain gutter, and a Blink camera. Officer Wierich photographed the
silver Mazda van. Inside the home, Officer Weirich collected the following evidence: a
Ring door camera, a Ring doorbell, two black t-shirts, a pair of black pants, a pair of black
jeans,1 a round of 9 mm ammunition, a Phoenix Raven .25 automatic pistol, a small plastic
bag containing a substance subsequently identified as marijuana, and Appellant and
Tricia Frank’s driver’s licenses. Officer Weirich responded to the hospital and collected
the bullet removed from Stevenson’s body. During his testimony, Officer Weirich
identified State’s Exhibits 1, 1A, 1B, 3, 7-11, 13, and 15A-F, which included the physical
1 All of the clothing was found in a washing machine. Stark County, Case No. 2023CA00108
evidence recovered during the search of Appellant’s residence as well as the photographs
he took during the search.
{¶20} Abigail Ilievski, a firearms and fingerprint analyst with the Canton/Stark
County Crime Lab, performed ballistics testing on the 9 mm Taurus firearm recovered
during the search of Appellant’s residence. Ilievski explained she fired the Taurus then
compared the test-fire bullet to the spent cartridge found at the scene. Ilievski opined the
spent cartridge found at the scene was fired from the Taurus firearm.
{¶21} Larry Mackey, also a firearms and fingerprint analysist with the
Canton/Stark County Crime Lab, examined the black hooded sweatshirt Stevenson was
wearing at the time of his murder. Through testing for gunpowder residue, gases, and
other particles, Mackey estimated the Taurus was fired from a distance of 5 to 6 feet away
from Stevenson. Mackey was able to rule out a near contact shot with the muzzle as the
fabric was not burned. Mackey explained how he determines whether a defect in fabric
caused by a bullet is an entrance defect or an exit defect. Mackey testified the defect on
the front of the sweatshirt was an exit defect, while the defect on the back of the sweatshirt
was an entrance defect.
{¶22} Magdalena Davis testified she was at home at approximately 3 p.m. on
March 22, 2023. Davis recalled she was in her bedroom, smoking a cigarette out an open
window and talking on the phone to her oldest daughter, when she heard two or three
gunshots. Davis immediately ducked down. When the gunshots stopped, Davis stood
and looked out the window. She observed “some bigger guy running like in slow motion
and towards * * * Peel Street * * * then he falls over” on his back. Transcript of
Proceedings, Vol. II, p. 350. Davis watched as “the other guy walked around him on his Stark County, Case No. 2023CA00108
left side and stood in front of him and shot him a couple more times.” [CITATION] The shooter left
the area. Davis screamed to her other daughter, who was at home with her, to call 9-1-
1. Police arrived shortly thereafter. Davis went to the police station and gave a statement.
Davis stated the shooter and the victim were both black men.
{¶23} Cuyahoga County Medical Examiner Dr. Alison Krywanczyk testified she
personally performed the autopsy on Stevenson’s body. Dr. Krywanczyk noted the
Cuyahoga County Medical Examiner’s Office has a contract with Stark County to conduct
autopsies on behalf of Stark County. During her external examination, Dr. Krywanczyk
observed two types of injuries on Stevenson, to wit: gunshot wounds and blunt force
injuries. Stevenson “had several blunt force injuries on his face; so over his forehead,
over his nose which were all very consistent with what we would call collapse-type injury,”
which occurs when “someone falls either because they’re unconscious or becoming
unconscious” and do not have the ability to catch themselves. Tr. Vol. II, p. 367.
{¶24} The first gunshot wound Dr. Krywanczyk examined entered Stevenson’s left
frontal scalp and exited his upper lip. This gunshot wound had a downward trajectory,
traveling through the skull, the left frontal lobe of the brain, passing through the base of
the skull behind the left eye, then the maxilla of the mouth, and finally exiting the upper
lip. Dr. Krywanczyk stated this gunshot wound, “in and of itself,” could have been fatal.
[CITATION]
{¶25} The second gunshot wound Dr. Krywanczyk examined entered the left side
of Stevenson’s back and exited the right side of his abdomen. Dr. Krywanczyk testified
her examination of the body in this area was limited due to the surgeries performed in an
attempt to save Stevenson’s life. Stevenson’s spleen and half of his pancreas had been Stark County, Case No. 2023CA00108
removed; therefore, Dr. Krywanczyk could not assess the injuries to those organs. The
medical examiner was able to determine this gunshot wound passed through the
diaphragm, the liver, the stomach, and part of the intestine before exiting. The gunshot
wound had a flat trajectory. Dr. Krywanczyk stated the victim could have walked or run
after receiving this gunshot wound.
{¶26} Dr. Krywanczyk determined the cause of Stevenson’s death was gunshot
wounds. She forwarded her report to the Stark County Coroner, who ruled the manner
of death a homicide.
{¶27} Upon conclusion of Dr. Krywanczyk’s testimony, the State rested its case.
{¶28} Appellant testified on his own behalf. Appellant explained Stevenson was
his wife Tricia Frank’s ex-husband. Appellant and his wife had been married for almost
a year, and Tricia Frank had been divorced from Stevenson for approximately the same
amount of time. Appellant recalled Stevenson made two calls to Tricia Frank. Stevenson
made the first call from prison. During the call, Stevenson repeated Appellant and Tricia
Frank’s address over and over. A few months later, Stevenson called from a private
number, demanding, “Come out you bitch ass n-----, I’m outside your house.” Tr. Vol. II,
p. 386. Appellant and Tricia Frank sought and received a protection order in July, 2022,
[SEGMENT 3]
following Stevenson’s first call. Appellant acknowledged Stevenson sent two non-
threatening texts to Tricia Frank, asking for his CashApp information.
{¶29} On the day of the shooting, Appellant received a phone call from Tricia
Frank, who was hysterical and crying. Tricia Frank told Appellant she saw Stevenson
walking on 12th Street. Appellant testified he was driving home at the time. He stopped
at his residence and retrieved his gun. Appellant returned to the area where Tricia Frank Stark County, Case No. 2023CA00108
stated she saw Stevenson. While he was driving, Appellant observed an individual
crossing the street near Nimisilla Park. Appellant stated he was not sure the individual
was Stevenson because Tricia Frank’s description did not match. Appellant turned
around “with the pure intentions to actually see if this was Melvin Stevenson, and if it was,
* * * [he] just wanted to have a man-to-man conversation to see if [they] could come up
with some type of solution.” [CITATION] Appellant exited his vehicle and called
Stevenson’s name. The individual turned around, which confirmed to Appellant it was, in
fact, Stevenson. Appellant returned to his vehicle, drove to Lippert Street, parked, and
exited the vehicle for a second time.
{¶30} Appellant crossed the street and approached Stevenson, who started
talking about an apartment building. Appellant noted he was wearing a Covid mask at the
time, but the mask fell off, and Stevenson’s demeanor changed once he recognized
Appellant. Appellant testified Stevenson “lunged at [him] and attacked [him].” [CITATION]
Appellant stated, during the attack, he heard two loud pops. Appellant admitted
he did not see a gun in Stevenson’s hand. As Appellant reached for his gun, Stevenson
started to run. Appellant gave chase. According to Appellant, during the chase,
Stevenson put his arm back and Appellant heard another loud pop. Appellant then shot
at Stevenson. Appellant alleged Stevenson came at him with his arms out. Appellant
then fired another shot. After Appellant heard Stevenson hit the ground, he retrieved his
gun, ran to his vehicle, and drove home.
{¶31} Appellant indicated he did not intend to kill Stevenson, but only wanted to
talk to him “to see if [they could] come up with a solution * * * and [Appellant] and [his]
wife [didn’t] have to continue to live in fear.” [CITATION] Appellant denied tracking Stark County, Case No. 2023CA00108
down Stevenson, but acknowledged the City camera video footage shown during the trial
depicts him driving his vehicle, turning onto different streets, following Stevenson.
Appellant admitted he lied to Detective Romanin when he told the detective he was
walking to a friend’s house when he encountered Stevenson. Appellant further
acknowledged he lied to Detective Romanin about throwing away the gun. Appellant did
not tell Detective Romanin Stevenson had a gun and had shot at him.
{¶32} Appellant did not call any other witnesses. Defense counsel rested its case.
{¶33} After hearing all the evidence and deliberating, the jury found Appellant
guilty of all of the counts contained in the Indictment. At sentencing, the trial court merged
Counts Two (murder, in violations of R.C. 2903.02(B)) and Three (felonious assault) for
sentencing purposes and sentenced Appellant to an aggregate prison term of twenty (20)
years to life.
{¶34} It is from his convictions and sentence Appellant appeals, raising the
following assignments of error:
I. THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY
TO DISREGARD ITS INSTRUCTION ON WITNESS CREDIBILITY
BECAUSE THE APPELLANT HAD EXERCISED HIS CONSTITUTIONAL
RIGHT TO TESTIFY AT TRIAL. (TR. P. 473).
II. BECAUSE APPELLANT’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE, APPELLANT’S CONVICTIONS
MUST BE REVERSED AND REMANDED. (TR. P. PASSIM). Stark County, Case No. 2023CA00108
III. BECAUSE THE PROSECUTOR COMMITTED MISCONDUCT
BY IMPROPERLY ARGUING THAT APPELLANT WAS ABLE TO CRAFT
HIS TESTIMONY TO THE EVIDENCE PRESENTED TO THE JURY BY
ATTENDING TRIAL, APPELLANT’S CONVICTIONS SHOULD BE
REVERSED. (TR. P. 501-503).
IV. BECAUSE DEFENSE COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO THE TRIAL
COURT ERRONEOUSLY INSTRUCTING THE JURY TO DISREGARD A
CRITICAL JURY INSTRUCTION ON WITNESS CREDIBILITY,
APPELLANT’S CONVICTIONS SHOULD BE REVERSED. (TR. P. 473).
I, IV
{¶35} Because Appellant’s first and fourth assignments of error require similar
analysis, we elect to address said assignments of error together. In his first assignment
of error, Appellant contends the trial court’s erroneous jury instruction was structural error.
In his fourth assignment of error, Appellant claims his trial counsel was ineffective for
failing to object to the trial court’s erroneous jury instruction.
{¶36} Pertinent to our analysis and disposition of Appellant’s first and fourth
assignments of error is the following portion of the trial court’s charge to the jury:
THE COURT: You are the sole judges of the facts, the credibility of
the witnesses and the weight of the evidence. Stark County, Case No. 2023CA00108
To weigh the evidence, you must consider the credibility of the
witnesses. You will apply the tests of truthfulness which you do in your daily
lives. It includes the appearance of each witness on the stand, their manner
of testifying, the reasonableness of the testimony, the opportunity they had
to see, hear and know the things they’re testifying to, accuracy of memory,
frankness or lack of it, intelligence, interest and bias, if any; together with all
these facts and circumstances surrounding the testimony. Applying these
tests, you will assign to the testimony of each witness such weight as you
deem proper.
You are not required to believe the testimony of any witness simply
because they were under oath. You may believe or disbelieve all or part of
the testimony of any witness. It is your province to determine what
testimony is worthy of belief and what is not worthy of belief.
You should not decide any issue of fact merely on the basis of the
number of witnesses who testify on each side of the issue. Rather, the final
test in judging evidence should be the force and weight of the evidence
regardless of the number of witnesses on each side of the issue.
The testimony of one witness believed by you is sufficient to prove
any fact. Also, discrepancies in a witness’s testimony or between his
testimony and that of others, if there are any, does not necessarily mean
you should disbelieve the witness, as people commonly forget facts and
recollect them erroneously after the passage of time. Stark County, Case No. 2023CA00108
You are certainly all aware of the fact that two people who are
witnesses to an incident often see or hear them differently. In considering
a discrepancy in a witness’ testimony, you should consider whether the
discrepancy concerns an important fact or a trivial one.
If you conclude the witness lied in their testimony as to the material
fact, you may distrust all of their testimony and you would then have the
right to reject all of their testimony unless, from all the evidence, you believe
that the probability of truth favors their testimony in other particulars.
The last paragraph does not apply because [Appellant] did take the
witness stand.
Transcript of Proceedings, Vol. II, pp. 470 – 473. (Emphasis added.)
Structural Error Analysis
{¶37} Appellant asserts “the Trial Court committed structural error when it
erroneously instructed the jury to disregard a proper jury instruction on witness credibility,
‘because the defendant did take the witness stand (tr. p. 473).’ ” Brief of Appellant at p.
8. Appellant explains, “This case was based solely on witness credibility. The Defendant
conceded that he caused the death of the deceased; there were no forensic issues that
were critical to the jury’s decision making, and thus, witness credibility was all important
to case at bar.” Id. Appellant adds the trial court did not give any other instruction on
witness credibility.
{¶38} Structural errors are “constitutional defects that defy analysis by ‘harmless
error’ standards because they affect[ ] the framework within which the trial proceeds, Stark County, Case No. 2023CA00108
rather than simply [being] an error in the trial process itself.” (Internal quotations omitted.)
[CITATION], ¶ 17, quoting [CITATION], ¶ 9, quoting
[CITATION]. Such errors permeate “[t]he entire
conduct of the trial from beginning to end so that the trial cannot reliably serve its function
[SEGMENT 4]
as a vehicle for determination of guilt or innocence.” (Internal quotations and citations
omitted.) Id.
{¶39} This Court has held the “[f]ailure to properly instruct a jury is not in most
instances structural error, thus the harmless-error rule of [CITATION], applies; failure to properly instruct the jury does
not necessarily render a trial fundamentally unfair or an unreliable vehicle for determining
guilt or innocence.” [CITATION], ¶ 72 (5th Dist.), citing [CITATION], ¶ 119 (5th Dist.), citing [CITATION].
{¶40} The State claims “[t]he trial court * * * read the jury instructions [prepared
prior to Appellant’s decision to testify], but when the trial court got to the last paragraph,
it realized the paragraph about the defendant not having to testify was still present in the
instructions, so the court merely told the jury to disregard that paragraph.” Brief of
Appellee at p. 19. The State concludes, “[t]he trial court was not instructing the jury to
disregard the instruction” relative to witness credibility. Id. Although the State’s
explanation may very well be accurate, we find nothing in the record before us to
definitively confirm the jury understood the “last paragraph” which “does not apply”
referred to an instruction which had not been read to them.
{¶41} Thus, the question on review is whether the given instructions and the trial
court’s subsequent statement, “The last paragraph does not apply because [Appellant] Stark County, Case No. 2023CA00108
did take the witness stand,” were so confusing such that they affected Appellant's
substantial rights or contributed to his conviction. See, [CITATION], citing Crim.R. 52(A). While the trial court’s instruction to disregard the
last paragraph of the jury instructions addressing witness credibility was an inadvertent
mistake (error), we find the given instruction and the trial court’s statement did not affect
Appellant’s substantial rights or contribute to his convictions. We conclude there was no
structural error in this case. See [CITATION]. We
have thoroughly reviewed the extensive record in this matter, including a thorough
reading of the entire trial transcript, and find the jury did not lose its way and the trial
court’s mistaken instruction was harmless.
Ineffective Assistance of Counsel
{¶42} Appellant submits trial counsel was ineffective for failing to object to the
aforementioned statement by the trial court.
{¶43} A properly licensed attorney is presumed competent. [CITATION]. In order to prevail on a claim of ineffective assistance of counsel,
an appellant must show counsel's performance fell below an objective standard of
reasonable representation and, but for counsel's error, the result of the proceedings would
have been different. [CITATION]. In other words, an appellant must show counsel's conduct so
undermined the proper functioning of the adversarial process the proceedings cannot be
relied upon as having produced a just result. Id. In determining whether counsel's
representation fell below an objective standard of reasonableness, judicial scrutiny of
counsel's performance must be highly deferential. [CITATION]. Because of the Stark County, Case No. 2023CA00108
difficulties inherent in determining whether effective assistance of counsel was rendered
in any given case, a strong presumption exists counsel's conduct fell within the wide range
of reasonable professional assistance. Id.
{¶44} In order to warrant a reversal, an appellant must additionally show he was
prejudiced by counsel's ineffectiveness. “Prejudice from defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was
unreliable or the proceeding fundamentally unfair because of the performance of trial
counsel.” [CITATION], citing [CITATION]. The United States Supreme Court and the Ohio Supreme Court have
held a reviewing court “need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” [CITATION], quoting [CITATION].
{¶45} Having already found the trial court’s statement did not affect Appellant’s
substantial rights or contribute to his conviction, Appellant is unable to establish he was
prejudiced by trial counsel’s failure to object to the trial court’s statement, “The last
paragraph does not apply because [Appellant] did take the witness stand.” Therefore,
Appellant cannot prevail on his claim of ineffective assistance of counsel.
{¶46} Appellant’s first and fourth assignments of error are overruled.
II
{¶47} In his second assignment of error, Appellant argues his convictions were
against the manifest weight of the evidence as the State failed to prove he did not act in
self-defense. We disagree. Stark County, Case No. 2023CA00108
{¶48} The State’s burden of disproving a defendant's claim of self-defense beyond
a reasonable doubt is subject to a manifest weight review on appeal. [CITATION], citing [CITATION]. When
conducting a manifest weight review, “[t]he court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of the witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.” [CITATION], quoting [CITATION]. A case should not be reversed as being
against the manifest weight of the evidence except “ ‘in the exceptional case in which the
evidence weighs heavily against the conviction.’ ” Id.
{¶49} When an accused asserts the defense of self-defense, he does not seek to
negate any of the elements of the offense which the State is required to prove. Self-
defense is an admission of the prohibited conduct coupled with a claim the surrounding
facts or circumstances exempt the accused from liability; therefore, “justification for
admitted conduct.” [CITATION], citing [CITATION].
{¶50} “The elements of self-defense differ depending on whether the defendant
used deadly or non-deadly force to defend himself.” [CITATION], quoting [CITATION]. “The use of a gun
constitutes the use of deadly force.” [CITATION].
{¶51} R.C. 2901.05(B)(1) provides: Stark County, Case No. 2023CA00108
A person is allowed to act in self-defense, defense of another, or
defense of that person's residence. If, at the trial of a person who is accused
of an offense that involved the person's use of force against another, there
is evidence presented that tends to support that the accused person used
the force in self-defense, defense of another, or defense of that person's
residence, the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense, defense of another,
or defense of that person's residence, as the case may be.
R.C. 2901.05(B)(1).
{¶52} Thus, the current version of R.C. 2901.05(B)(1) requires the State to
disprove self-defense by proving beyond a reasonable doubt the accused: “(1) was at
fault in creating the situation giving rise to the affray, OR (2) did not have a bona fide
belief that he was in imminent danger of death or great bodily harm for which the use of
deadly force was his only means of escape, OR (3) did violate a duty to retreat or avoid
the danger.” [CITATION]
{¶53} Appellant maintains the trier of fact lost its way in rejecting his claim of self-
defense as such was supported “by all of the scientific, forensic, and medical evidence.”
Brief of Appellant at p. 17. It is well settled “a conviction is not against the manifest weight
of the evidence simply because the [trier of fact] rejected the defendant's version of the
facts and believed the testimony presented by the state.” (Internal citations omitted.) [CITATION] quoting [CITATION] The trier of fact is free to believe all, some, or none of the evidence presented Stark County, Case No. 2023CA00108
by the State or defense at trial. [CITATION], ¶ 16 (8th Dist.). We
cannot conclude the jury lost its way.
{¶54} First, the evidence supports the conclusion Appellant created the situation
giving rise to the affray. At trial, Appellant testified Stevenson “lunged at [him] and
attacked [him].” Tr. Vol. II, p. 420. Appellant stated, during the attack, he heard two loud
pops, so he reached for his gun. Appellant admitted he did not see a gun in Stevenson’s
hand. Stevenson ran away and Appellant gave chase. Appellant claimed, as he was
chasing Stevenson, Stevenson put his arm back and Appellant heard another loud pop.
Appellant then shot at Stevenson. In contrast, during his interview with Detective
Romanin, which was played for the jury, Appellant did not tell the detective Stevenson
was in possession of a gun or Stevenson had fired the first shot. Rather, Appellant
admitted Stevenson lunged at him and he “just started firing.” Tr. Vol. I, p. 39.
{¶55} Further, the record establishes Appellant did not have reasonable grounds
to believe he was in imminent or immediate danger of death or great bodily harm.
[SEGMENT 5]
Generally, neither words alone nor fear itself will constitute evidence of serious
provocation. “[W]ords alone will not constitute reasonably sufficient provocation to incite
the use of deadly force in most situations.” [CITATION].
“Fear alone is insufficient to demonstrate the kind of emotional state necessary to
constitute sudden passion or fit of rage.” [CITATION].
{¶56} At trial, Appellant explained, after determining Stevenson was the individual
he saw near Nimisilla Park, he “drove around just out of protection of myself because I
don’t – didn’t know what he have or what he could do, and I didn’t want to risk driving
literally past him and he did something.” Tr. Vol. II, pp. 389-390. However, during his Stark County, Case No. 2023CA00108
interview with Detective Romanin, Appellant indicated, “I was scared for my wife and my
daughter. I wasn’t scared for me.” Tr., Vol. I, p. 39. There was simply no evidence at trial
to support Appellant’s assertion he believed he was in imminent or immediate danger of
death or great bodily harm.
{¶57} Finally, the evidence supports the finding Appellant's use of a gun was not
reasonably necessary under the circumstances. [CITATION], quoting [CITATION]. (“[T]he use of deadly force in self-defense must be reasonably
proportionate—self-defense ‘is not available unless the defendant shows that the force
used to repel the danger was not more than the situation reasonably demanded.’ ”). The
evidence at trial revealed Stevenson was not in possession of a firearm at the time of the
shooting and Appellant acknowledged he did not see Stevenson with a firearm. In
addition, witnesses stated Stevenson had his arms up and his hands were empty.
{¶58} In addition, Dr. Krywanczyk testified the first gunshot she examined entered
Stevenson’s left frontal scalp and exited his upper lip with a downward trajectory,
indicating Stevenson was below Appellant when he was shot. The second gunshot
wound Dr. Krywanczyk examined entered the left side of Stevenson’s back and exited
the right side of his abdomen, indicating Stevenson was faced away from Appellant.
{¶59} Appellant initiated the contact with Stevenson and willingly engaged in a
physical altercation with someone he subjectively claimed possessed a weapon.
“Generally, a defendant, having willingly advanced toward a volatile situation cannot rely
on the affirmative defense of self-defense.” [CITATION].
====== End of Part of a Court Ruling ====== Stark County, Case No. 2023CA00108
{¶60} Also, of significance, is the fact Appellant chased Stevenson after Appellant
claims to have heard two loud pops. Appellant then shot Stevenson in the forehead as
Stevenson laid on the ground. Clearly, Appellant’s active pursuit of Stevenson after the
initial confrontation supports the State’s argument Appellant also violated his duty to
retreat or avoid the danger.
{¶61} Based upon the foregoing, we find the State disproved Appellant’s claim of
self-defense by proving beyond a reasonable doubt Appellant was at fault in creating the
situation giving rise to the affray, did not have a bona fide belief he was in imminent
danger of death or great bodily harm for which the use of deadly force was his only means
of escape, and he violated a duty to retreat or avoid the danger. Accordingly, we find
Appellant’s convictions were not against the manifest weight of the evidence.
{¶62} Appellant’s second assignment of error is overruled. Stark County, Case No. 2023CA00108
III
{¶63} Appellant withdrew his third assignment of error at oral argument in this
matter on July 9, 2024. Accordingly, Appellant’s third assignment of error is overruled.
{¶64} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Baldwin, J. concur
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-23-1036
Appellee Trial Court No. CR0202102711
v.
Darryl Lathan, II DECISION AND JUDGMENT
Appellant Decided: June 28, 2024
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Megan M. Patituce, Joseph C. Patituce, and
Catherine Meehan, for appellant.
*****
MAYLE, J.
{¶ 1} Following a jury trial, defendant-appellant, Darryl Lathan, II, appeals the
January 20, 2023 judgment of the Lucas County Court of Common Pleas, convicting him
of murder and felonious assault, with firearms specifications, and failure to comply with
an order or signal of a police officer. For the following reasons, we affirm the trial court
judgment. I. Background
{¶ 2} Darryl Lathan was charged in a three-count indictment in connection with
the May 16, 2021 shooting death of A.R. He entered a plea of guilty to Count 3, failure
to comply with an order or signal of a police officer, a violation of R.C. [CITATION], and [CITATION]. The remaining counts—Count 1, murder, a violation of R.C.
[CITATION] and [CITATION], and Count 2, felonious assault, a violation of R.C.
[CITATION] and [CITATION], and firearms specifications under R.C. [CITATION] and
[CITATION]—were tried to a jury in August of 2022.
{¶ 3} The State presented the testimony of Toledo Police Lieutenant Philip Cook;
Officers Daniel Welch and Bradley Knapp; Sergeant Aaron Riter; Detectives Scott Mills,
Kristi Eycke, and Jeffrey Sharp; University of Toledo Police Officer John Sawicki; Lucas
County Deputy Coroner Jeffrey Hudson, M.D.; and A.R.’s brother, D.D. Lathan
testified, and he presented the testimony of his cousin, D.G., and his brother, C.J. There
were video cameras monitoring multiple angles at businesses near the scene of the
shooting and at the hospital where the victim was taken, and there were dashboard
cameras in the police vehicles and in the car Lathan drove that night. Extensive video
footage was therefore admitted into evidence.
A. The State’s Evidence
{¶ 4} According to the evidence presented by the State, sometime after midnight
on May 16, 2021, A.R., D.D. (nicknamed Pooter), and a group of their friends went to the
Spotlight Lounge, a nightclub located at the corner of Angola and Reynolds Roads. The
2. club was very crowded when they got there, so they could not get inside. People
socialized and drank in the parking lot while waiting to be admitted into the club. Traffic
in the parking lot moved slowly, often stopping altogether.
{¶ 5} About 20 minutes after A.R. and his group got to Spotlight, Lathan arrived
with a group of friends and relatives, including C.J. and E.W. He arrived in a BMW that
pulled up behind a Jeep that was stopped near the door of the club. A maroon sedan was
stopped to the left of the Jeep.
{¶ 6} Lathan and A.R. knew each other because they grew up in the same
neighborhood, but they were not friends. To the contrary, they had been at odds with
each other for several years and had argued over Facebook. D.D. claimed that when A.R.
noticed that Lathan was there, he told D.D. that he wanted to leave. A.R. then walked
away, but D.D. did not know where he went.
{¶ 7} Video shows that the driver of the BMW tried to reverse shortly after
arriving at Spotlight, but other cars were lined up behind the vehicle, preventing it from
going very far. The BMW stopped and its occupants exited the vehicle. Some of them
approached and greeted people that they knew. Lathan’s friend, E.W., knew D.D. from
playing sports together in school, and they stopped and talked to each other towards the
front passenger side of the vehicle.
{¶ 8} A.R. had been wearing a mask that night, similar to a ski mask or ninja
mask, but initially it was pushed up on his head holding back his dreadlocks. At some
point, he pulled the mask down to cover his face. Video cameras recorded a masked A.R.
3. grab a gun out of a fanny pack, cock it, and walk around the maroon sedan and Jeep that
were stopped immediately in front of the BMW. Lathan was standing at the driver side
door of the BMW. As A.R. walked around the side of the Jeep, Lathan shot at A.R. and
struck him, then ran away from Spotlight and across Reynolds Road.
{¶ 9} A.R. stumbled past the door of the club and fell, dropping the gun. D.D. was
holding a bottle of Patron, which he threw in Lathan’s direction. E.W. got into the
BMW. D.D. ran back towards A.R., grabbed his gun off the sidewalk, and started
[SEGMENT 6]
running in the direction where Lathan ran. As he passed the BMW, he shot into it, shot
back towards it again, ran through the parking lot, then ran back towards Spotlight; D.D.
estimated that he shot the gun four times. E.W. was struck by one of the bullets D.D.
fired at the BMW. D.D. recalled that as he ran past the BMW, he heard other shots being
fired. He did not know if Lathan continued firing as he ran away. D.D. maintained that
someone took the gun from him as he was leaving Spotlight.
{¶ 10} A.R. and E.W. were transported by their friends to the University of Toledo
Medical Center. Lathan was picked up in the BMW at the corner of South Avenue and
Reynolds Road and accompanied E.W. to the hospital. Videos outside the emergency
room entrance show that D.D. and Lathan encountered each other there and engaged in a
physical altercation that was quickly broken up by law enforcement. D.D. told Lathan,
“you’re going to die tonight, bitch.”
{¶ 11} Once they were separated, Lathan took off in the BMW. Toledo Police
Officers attempted to stop Lathan’s vehicle, but he led them on a high-speed chase that
4. ended when his vehicle hit a rock at Rock Spring and Glen Ridge Roads. Lathan got out
of the car and fled on foot, but was easily identified because he left a wallet with his
credit cards and state identification in the driver’s side panel of the BMW. Police also
found keys with the first name of Lathan’s mother on them, a cell phone that contained
email addresses associated with Lathan, and a gun holster on the floor of the front
passenger seat. When the vehicle was processed at the impound lot, bullet defects were
discovered in the right front bumper of the vehicle, windshield, left rear quarter panel,
left front door frame, B pillar of the front left side, and middle armrest. A bullet core was
found in the upper decking of the rear window and a fragment of bullet jacketing was
found on the floor of the back seat.
{¶ 12} An autopsy revealed that A.R. suffered a superficial gunshot wound that
grazed his right ring finger; a gunshot wound that entered the back of his right leg and
exited above the knee, fracturing his femur; and a gunshot wound that entered the upper
left side of his back near his armpit and exited through his chest. The gunshot wound to
his back went through the left ventricle of his heart and caused his death.
{¶ 13} E.W.’s gunshot wound was not fatal. D.D. was charged with felonious
assault with a firearms specification for E.W.’s shooting, but ultimately entered into a
plea agreement with the state. Under that agreement, D.D. entered a plea of guilty to
felonious assault, the firearms specification was dismissed, and D.D. agreed to provide
truthful testimony at Lathan’s trial. D.D. denied that he intentionally shot E.W.
5. {¶ 14} Investigators who processed the scene on the night of the shooting
observed five vehicles in the Spotlight parking lot; three of the five had been damaged by
bullets. The windshield of a Jeep was struck by a bullet. The bullet lay on the dashboard
of the vehicle. An Acadia was struck by bullets twice in the front bumper, and a Chrysler
300 had two bullet defects in the windshield. Investigators found the identification of
Lathan’s brother, C.J., in the Acadia, and the vehicle was registered to Lathan’s mother.
{¶ 15} Numerous shell casings and bullets were also found in the parking lot. In
all, 27 casings were collected. There were eight casings and one live round of
ammunition clustered in the same general vicinity near a light post. There was another
cluster of ten shell casings in front of where the Acadia was stopped, and a couple more
nearby. Additional spent bullets, bullet fragments, and jackets were also found. No
casings were found in the area where A.R. was standing, but because it was a crowded
scene, casings could have moved around as a result of being kicked as people ran or
lodged in tires as people drove off. All the live rounds and spent casings came from nine-
millimeter weapons. It was determined that the casings collected were fired from three
different firearms. None of the firearms were recovered. Some of the shell casings were
matched to two other separate shooting incidents in Toledo, but firearms were never
located in those cases either and there were no victims in those other shootings. None of
the witnesses interviewed ever identified any shooters at the scene other than Lathan and
D.D.
6. {¶ 16} Investigators interviewed witnesses, collected fingerprints, and swabbed
various items for DNA. Many witnesses refused to cooperate. In fact, E.W. provided
false statements to police when he was first interviewed in this case and was charged with
obstruction. Investigators also used cell phone data to confirm that Lathan was in the
vicinity of Spotlight at the time of the shooting and was in the vicinity of Rock Spring
and Glen Ridge around the time the pursuit of the BMW terminated.
{¶ 17} Cross-examination focused on whether A.R. raised his gun to shoot,
whether there were shots fired by individuals other than Lathan and D.D., and whether
A.R., D.D., and a man referred to as Brown Hat signaled each other in an effort to set
Lathan up to be shot. D.D. denied that he and Brown Hat signaled to each other, but he
conceded that in the video of the incident, (1) it appeared that Brown Hat signaled to
A.R., and (2) A.R. appeared to have raised his gun when he got to the side of the Jeep.
D.D. admitted knowing that A.R. had a gun on him, but denied seeing it out that night. In
fact, at the time shots were fired, D.D. believed his brother was still in front of the Jeep;
he did not know that he had walked behind the cars and rounded the right side of the
Jeep. D.D. insisted that he did not act in concert with anyone to try to kill Lathan.
{¶ 18} Although numerous angles were recorded by the BMW’s dash cam and
various surveillance cameras in the area, none of the cameras perfectly captured all the
participants’ movements.
7. B. Lathan’s Version of Events
{¶ 19} Lathan did not deny that he shot A.R., but he claimed that he did so in self-
defense. He presented testimony from D.G. and C.J., then testified in his own defense.
. Lathan’s Cousin, D.G.
{¶ 20} D.G. testified that he was at Spotlight that night. He walked out to his car
to get his vape pen and discovered that Lathan and other relatives were there. At first
Lathan was sitting on the edge of the car door. He got out and D.G. and Lathan shook
hands. D.G. saw A.R. and D.D. He considered them to be friends. He denied being
aware of any animosity between A.R. and Lathan.
{¶ 21} D.G. saw that one of his female cousins was talking to D.D., and he
stopped and spoke with them. D.G. and D.D. walked toward the door of the club. At
some point, A.R. and D.D. were at the door near him, and they were staring at Lathan;
A.R. was not wearing a mask at that time. D.G. described that things did not seem hostile
at first, but he felt the mood change. People were “talking amongst each other and
pointing a certain way.” He said that because he felt tension, he told everyone to “chill”
and that they were “all family tonight.”
{¶ 22} Although he did not know what was going on, D.G. said that he “knew [he]
needed to get out of there.” He testified that he was scared and wanted to get out of the
way. While standing near the door to the club, he raised his arm to try to get C.J.’s
attention because he felt that something was about to happen and he wanted to warn C.J.
to “get out of the way.” He said he tried to call C.J., but C.J. did not have his phone. As
8. D.G. pulled on the door to go back inside, shots were fired; he denied that he pointed at
A.R. before the shots were fired. He insisted that he did not see the shooter and did not
see anyone with a gun.
. Lathan’s Brother, C.J.
[CITATION] C.J. testified that he drove to Spotlight that evening in his mother’s GMC
Acadia. Before going to Spotlight, he, Lathan, E.W., and other friends had been at
another club. He followed the BMW that Lathan was riding in. The parking lot was
crowded and traffic was moving slowly. His vehicle was at a complete stop; they tried to
reverse but they were blocked in by other vehicles. They got out of the vehicle and said
hi to people they knew.
[CITATION] After being there a few minutes, C.J. saw somebody with a gun and a
mask, so he started walking the opposite way. He felt fearful for the other people he was
with. As he walked to his car, he heard gunshots and hid behind the car. He heard more
[SEGMENT 7]
than ten shots, but did not see the shots being fired. He felt bullets fly by him and hit off
the car next to him. He ran towards a field on Reynolds Road and left his car and cell
phone at Spotlight. He never looked back after the shots were fired, and he never
returned to make sure that his family was okay.
[CITATION] C.J. denied knowing that A.R. or D.D. was going to be at the club. He
denied knowing that Lathan had a gun that night and did not see him with a gun.
9. 3. Lathan
{¶ 26} Lathan testified that he and A.R. knew each other from their neighborhood
and grew up together. A.R. was two years younger than Lathan. Lathan denied that he
had a problem with A.R., but claimed that A.R. had a problem with him. A.R. made
threats about Lathan in a music video. A.R. also had others tag Lathan in social media
posts. People told Lathan that A.R. was going to kill him when he saw him.
{¶ 27} A.R. had been threatening Lathan for a while, so at first, Lathan did not
take it seriously. Eventually, Lathan felt threatened. Lathan explained that like D.D., he
also goes by the nickname “Pooter.” He testified that A.R. made a song with lyrics
stating that Pooter “better kill [A.R.] before [he] end[s] up dead,” and A.R. also said he
was going to rob and shoot Lathan. Lathan claimed that A.R. had a reputation for
violence and he is personally aware that A.R. has shot multiple people. He claimed that
he feared A.R. and he feared him the night that they were at Spotlight.
{¶ 28} Lathan arrived at Spotlight in a BMW; E.W. and R. rode with him. His
brother arrived behind him in an SUV. The traffic moved slowly. Lathan saw a friend
from his neighborhood named Chewy, and Lathan hung out the window to get his
attention. Chewy did not come over to talk to him, and this seemed unusual. Chewy
leaned in the car ahead of the BMW, looked back at Lathan, gave him a sour look, then
shook his head. Lathan then saw A.R. walk out of the club; he was smiling and looked
like he was trying to say something to Chewy. A.R. looked over at Lathan and his smile
faded. A.R. was not wearing a mask at that point. He disappeared into the parking lot.
10. {¶ 29} Lathan wanted to leave. There was a car ahead of the BMW blocking it in,
and he told them to move, but could not get through. His brother also attempted to back
the SUV out, but the cars behind him prevented them from leaving the line of cars.
{¶ 30} Unable to leave, Lathan remained in the car at first. His cousin came up to
him and hugged him and told him to be careful. Lathan claimed that people started
telling him that “they about to shoot your car up.” People told him “get your dumb ass
out of the car,” so he got out by climbing out the window.
{¶ 31} Lathan maintained that before going to Spotlight, he was not armed with a
weapon and there was no weapon in the vehicle. But while he was hanging out of the
window, someone asked him if he was “strapped.” He said no. He claimed that as he
scanned the parking lot for A.R., “a gun end[ed] up on [his] lap, like somebody must have
stuffed it” in his lap. He did not know who did this because the music was loud and he
was not paying attention at the time.
{¶ 32} Music was playing in the parking lot, and Lathan danced around in front of
the car a little, still looking for A.R. over the cars. He walked the “peripher[y]” of the car
because he knew A.R. was “about to pop out of somewhere.” A.R. and D.D’s friends
approached Lathan, so he walked towards them. D.D. is usually neutral when it comes to
Lathan and they usually talk when they see each other. The group shook hands with each
other.
11. {¶ 33} Brown Hat shook his hand, but Lathan said that Brown Hat does not like
him. He could see that Brown Hat was carrying a gun on his hip. After shaking Lathan’s
hand, Brown Hat and his group kept walking and disappeared into the parking lot.
{¶ 34} Lathan became fearful that he was being set up. One of the people in that
group had told Lathan that A.R. was going to kill Lathan when he saw him. He felt that
A.R.’s group was “trying to distract [him] while [A.R.] pop up from wherever he popping
up from.” Lathan shifted to the left and looked for A.R. between the cars.
{¶ 35} Lathan saw three of A.R.’s friends. One was sitting on a car, dressed in
black, and “masked up.” He had a gun. Another of A.R.’s friends was “crouched down
with a mask on” looking at Lathan from the back of the car. He did not know the third
man, but he recognized the other two “from the neighborhood.” Lathan testified that these
men were known for shooting people.
{¶ 36} Lathan felt stuck. He wanted to run, but he couldn’t because that also would
have been dangerous. Also, his wallet and phone were in the car. He turned back around
to tell his friends to watch out and pay attention because A.R. would not have any problem
shooting them. As he was going back, A.R. “finally pop out from between the cars where
the two other people with guns was.” A.R. had a mask on and a gun in his hand. They
looked directly at each other. Lathan claimed that everyone was looking at him because
they knew what A.R. was about to do.
{¶ 37} Lathan hoped that D.D. or one of his friends would get A.R., but A.R. walked
to his left in front of the car and continued to walk. C.J. and E.W. were in that direction
12. talking to D.D. Lathan tried to tell them to get out of the way because A.R. was going to
shoot them all. A.R. was trying to get into position to shoot him, and A.R.’s friends were
already in position to do so. Lathan was trying to watch all of them. His gun was not yet
out. But then, A.R. walked to the curb, peeked back at Lathan, and raised the gun. Lathan
was 100 percent certain that A.R.’s gun was cocked. Lathan “hurried up and shot.”
A.R. would not have seen Lathan’s gun because it wasn’t out. Lathan hurried
up, raised it, and shot. He had recently had shoulder surgery, so he knew it was going to
hurt to raise the gun. Lathan claimed he fired it twice. He insisted that A.R.’s gun went
off too because he saw bullets fly out. He pointed out in the video where he saw A.R.’s
gun spark and identified where he saw smoke from the gun. Lathan maintained that two
other people shot at him as well, and he pointed out in the video where the other shooters
were located.
Lathan described that A.R. kind of ran, tripped over the curb, and went
flying. Lathan “ducked off” running, dodging A.R.’s shots, but he did not run instantly
because guns were pointed at his face. He ran towards Reynolds Road, all the while hearing
“shots going nonstop.” He ran across Reynolds, climbed over a gate, then ran into a trailer
park. Lathan said that the gun fell out of his hand sometime when he was running. He lost
his glasses too.
Lathan believed he had been struck by a bullet. His friend, R., ran across
Reynolds too and ran past Lathan. Lathan called his name and R. checked Lathan and
determined that he had not been shot. E.W. called R.—Lathan’s phone was still in the car.
13. E.W. said he had been shot; Lathan assumed that A.R. had shot him, but E.W. told him it
was Pooter (i.e., D.D.). R. ran back to get E.W. and Lathan stayed hiding. R. came back
in the BMW to pick up Lathan and they drove E.W. to the hospital.
{¶ 41} When they got to the hospital, the doors were locked. D.D. and his group
were inside the hospital, which confused Lathan because he did not know that anyone in
D.D.’s group had been shot. He just thought that A.R. had fallen over the curb.
{¶ 42} Lathan and D.D. faced off at the door. The door opened from the inside.
When it opened, Lathan put his hands up to fight, and so did D.D. D.D. swung at him and
bumped him. Lathan could not fight back because of his shoulder injury. He was in pain
and he started running away from him. Police officers eventually grabbed D.D.
[SEGMENT 8]
{¶ 43} An officer’s body camera recorded Lathan tell R. to get D.D. D.D. yelled at
Lathan that he was going to kill Lathan and Lathan would die that night. Lathan and R.
were outnumbered and D.D. kept breaking free from police. Although Lathan did not see
any guns, he knew that people had guns. Lathan told E.W. to go inside and he went to the
driver’s seat of the BMW and told R. to come with him because he was going to get
“fuck[ed] up.” R. didn’t come, so Lathan just left. He insisted that he left not because he
had just fired a weapon at Spotlight, but because he was afraid for his life. He thought
D.D.’s group would start shooting. Lathan said he eventually realized that police were
chasing him and he regrets not stopping. He pled guilty to charges stemming from the
police chase.
14. {¶ 44} Lathan claimed that he did not want to shoot A.R., but he feared imminent
death or serious bodily harm at A.R.’s hands. This fear extended to his family who were
present at Spotlight. He also feared imminent death or serious bodily harm at UTMC.
{¶ 45} On cross-examination, Lathan testified that A.R. had threatened him face-to-
face in the past when they were both at a bar called D’Icon. A.R. told Lathan he would
“shoot this mother fucker up.” Lathan denied that he had any problem with A.R. He also
denied making a rap song talking about how he killed A.R. Lathan claimed that he always
went out of his way to avoid A.R., even going to stores that were further away to avoid
running into him.
{¶ 46} Lathan conceded that A.R. did not point the gun at him and did not try to
shoot him when he was standing at the closest point to Lathan and would have had the
easiest shot. He believes that A.R. was surprised to see him because he had previously
been in a different spot. Lathan believes that they were also trying to set up E.W. He
debated the suggestion that A.R. would not have shot in E.W.’s direction because E.W.
was standing next to D.D.
{¶ 47} Lathan denied that A.R. had his back to him when he was shot. He described
A.R. as being “slanted,” looking back at him. He challenged the prosecutor’s contention
that sparks were not visible from A.R.’s gun. He said that if the recording is played slowly,
sparks can be seen, but he conceded that on regular speed, they cannot. Lathan testified
that people on the side of the maroon sedan, next to the Jeep, shot at him after he shot A.R.
15. {¶ 48} In a jailhouse phone call, Lathan denied shooting A.R. He explained that he
said this because he was not legally allowed to possess a firearm and did not know that it
would be legal for him to use a firearm in self-defense.
C. The Verdict and Motion for New Trial
{¶ 49} The jury found Lathan guilty of murder and felonious assault, along with
the specifications. Thirteen days later, on August 18, 2022, Lathan sought and was
granted leave to file a motion for a new trial. He argued that one of the jurors—Juror
#7—engaged in misconduct by failing to disclose that he knew defense counsel.
{¶ 50} According to Lathan’s motion, on August 4, 2022, the wife of defense
counsel came to court to watch her husband examine defense witnesses. On her way to
the courtroom, she saw a man she had worked with between 2011 and 2014; she did not
speak with him. When the jury was led into the courtroom, she realized that the man was
seated as a juror on the case. She perceived that he was staring at her, which made her
uncomfortable, so she left the courtroom and went home. After she left, her husband
called her, and she explained that she left because she knew one of the jurors. She told
her husband that she did not speak with the juror and did not know if the juror knew that
she was married to defense counsel.
{¶ 51} The next day, defense counsel called his wife to tell her that the jury had
found Lathan guilty. Soon after, Juror #7 direct messaged her on Facebook and said:
“1st off it was nice to see you n 2nd husband did nice job for his first case .” She
did not respond. She looked through her messages and saw that she and Juror #7 had
16. direct messaged on Facebook in 2018. He asked her opinion about a job opportunity and
she gave him her advice. He responded “[a]re you taking bf apps and is it free lol[.]”
She did not respond.
{¶ 52} Lathan argued that if he had known that Juror #7 had asked to apply to be
defense counsel’s wife’s boyfriend and “had been rebuffed,” he would have wanted Juror
#7 removed from the jury. He acknowledged that at the time of voir dire, Juror #7 may
not have known that he knew defense counsel’s wife, but he knew on the third day of
trial. Although Lathan’s motion did not explicitly allege that Juror #7 was biased or
impartial or that he failed to honestly answer questions during voir dire, he cited cases
recognizing that a defendant is entitled to an impartial, unprejudiced, and unbiased jury,
and that a new trial may be granted where a juror has failed to honestly answer material
questions during voir dire.
{¶ 53} On December 5, 2022, Lathan filed a motion for disclosure of jury
information, including the names, addresses, and employer information for each juror.
The court denied the motion because it found that there had not been an initial showing of
juror misconduct. The motion proceeded to a hearing on December 19, 2022, at which
defense counsel testified.
{¶ 54} In a judgment journalized on January 18, 2023, the trial court denied
Lathan’s motion for new trial for two primary reasons: (1) prospective jurors were never
asked if they knew any family members of the attorneys and defense counsel admitted
that he had no cause to believe that the juror knew that defense counsel was married to a
17. person the juror knew; and (2) defense counsel was informed by his wife before closing
arguments of her connection to the juror, yet defense counsel did not bring the issue to
the court’s attention, suggesting to the court that counsel did not actually believe that
Juror #7 could not be fair and impartial during deliberations.
{¶ 55} The court did not allow an additional hearing for Lathan to examine Juror
#7 and the other jurors.
D. Sentencing
{¶ 56} On January 19, 2023, the trial court sentenced Lathan. It found that Counts
1 and 2 merged for purposes of sentencing and sentenced him on Count 1. The court
imposed a stated minimum prison term of 15 years to life and a mandatory consecutive
term of three years on the firearms specification. On Count 3, the court imposed a prison
term of 30 months to run consecutively to the sentence imposed for Count 1. Lathan’s
conviction and sentence were memorialized in a judgment journalized on January 20,
2023.
{¶ 57} Lathan appealed. He assigns the following errors for our review:
ASSIGNMENT OF ERROR I: The trial court erred in excluding
relevant evidence of Mr. Lathan’s self-defense claim, thereby violating his
Sixth Amendment Right to a meaningful defense.
ASSIGNMENT OF ERROR II: Mr. Lathan’s conviction was
against the manifest weight of the evidence.
18. ASSIGNMENT OF ERROR III: The trial court erred in denying
Mr. Lathan’s Motion for New Trial.
II. Law and Analysis
{¶ 58} In his first assignment of error, Lathan challenges the trial court’s exclusion
of a video recorded by the victim three months before the shooting, in which he allegedly
rapped about his intent to kill Lathan. In his second assignment of error, he argues that
the jury’s verdict rejecting his claim of self-defense was against the manifest weight of
the evidence. In his third assignment of error, Lathan argues that the trial court erred in
denying his motion for a new trial. We consider each of Lathan’s assignments in turn.
A. Exclusion of Evidence
{¶ 59} On August 3, 2022—the evening before Lathan was set to begin presenting
his case-in-chief—Lathan’s counsel provided the State a copy of a rap video that A.R.
allegedly posted online in February of 2021, which counsel said had just been found. In
it, A.R. claimed to have committed several shootings and “specifically call[ed] Mr.
Lathan out as a mark,” warning him that he better kill A.R. before A.R. kills him. The
State objected to the admissibility of the recording. It argued that it was not timely
disclosed, was unfairly prejudicial, and contained exaggerations intended for
entertainment purposes. The trial court ruled that Lathan could testify about the rap
[SEGMENT 9]
video, but it could not be admitted into evidence or played at trial because it had not been
disclosed in accordance with Crim.R. 16. In his first assignment of error, Lathan argues
that the trial court erred when it excluded this evidence.
19. {¶ 60} In support of this assignment of error, Lathan contends that (1) the video
was admissible as a specific instance of A.R.’s threat to kill him and was probative to
establish his subjective fear of A.R.; and (2) the trial court failed to engage in the proper
analysis before excluding the evidence and failed to impose the least restrictive sanction
for Lathan’s discovery violation. In response, the State does not dispute the relevance of
the video, but argues that (1) it was within the trial court’s discretion to exclude the
evidence; (2) the trial court engaged in the proper analysis before excluding the video;
and (3) Lathan suffered no prejudice because he was permitted to testify “to anything and
everything” contained in the video.
{¶ 61} The way this issue materialized at trial was as follows. On August 3, 2022,
the third day of trial, the State rested, Lathan moved for acquittal, and the trial court
denied the motion. At some point that day—the record does not make clear when—
Lathan’s attorneys alerted the State and the court that it had received an electronic
transmission of a video posted by A.R. in February of 2021. The parties apparently
provided case law to the trial court concerning the admissibility of that video. On August
4, 2022, the parties argued their positions to the court.
{¶ 62} Lathan argued that the case law makes clear that in a self-defense case,
prior acts and threats made by the victim, which are known to the defendant, are
admissible to show the defendant’s subjective belief of imminent death or serious bodily
harm. The State responded that Lathan filed his motion of intent to assert self-defense in
July of 2022, the video was published on YouTube and not in some secret forum, and
20. because of its late disclosure, the video should not be admitted. It commented that if the
State had attempted to introduce evidence that was publicly available but not previously
disclosed, it doubted the court would allow its introduction. It also complained that there
were never any actual acts of violence by A.R. against Lathan, there were other aspects of
the video (e.g., guns) that may inflame the jury or cause them to “automatically assume
bad things about [A.R.’s] character,” and the video likely contained exaggerations
intended to entertain.
{¶ 63} Lathan replied that the video specifically threatened violent acts against
him, and A.R. admitted to other shootings that Lathan believes happened, Lathan was
aware of other instances of violence by A.R., A.R. had a reputation for violence, and all
these facts supported Lathan’s subjective belief that lethal force was necessary. He
pointed out that the State had sought to use jailhouse phone calls that were not previously
disclosed, and he explained that the video was filed under a unique name that was not the
victim’s given name or widely-known nickname. Even though Lathan knew of the
existence of the video, he could not remember the name needed to find the video; defense
counsel, by surprise, received a direct link to the video by an unknown third party.
Finally, because the State was aware from other witnesses that there was a “rap beef”
between Lathan and A.R., the State should not have been surprised by the video.
{¶ 64} The court agreed that testimony about the rap video was admissible, but it
ruled that “the video is not coming in” under Crim.R. 16 because of its late disclosure. It
observed that Lathan knew about the video and could have searched for it, and it found
21. that the way the video came to the attention of defense counsel was “curious.” The court
disagreed with Lathan that the video was comparable to jailhouse phone calls, and it
agreed with the State that if the State had attempted this tactic and the evidence was
allowed, the decision would surely be reversed on appeal. The court told the attorneys
that they were not going to engage in “trial by ambush,” and it reiterated that Lathan
could testify about the video, but it would not be played.
{¶ 65} Generally speaking, “the admission of evidence lies within the broad
discretion of the trial court, and a reviewing court should not disturb evidentiary
decisions in the absence of an abuse of discretion that has created material prejudice.”
[CITATION], ¶ 62, citing [CITATION]. Here, however, the trial court did not exclude the evidence under the Rules of
Evidence—it excluded the evidence under the Rules of Criminal Procedure because of
the failure to timely disclose the evidence. The State does not dispute the relevance of
the rap video or argue that it should have been excluded under Article IV of the Rules of
Evidence. We focus our attention, therefore, on the authority of the trial court to exclude
the evidence under the Rules of Criminal Procedure.
{¶ 66} Under Crim.R. 16(H), if a defendant serves a written demand for discovery
seeking disclosure of evidence from the State, “a reciprocal duty of disclosure by the
defendant arises without further demand by the state.” The rule requires the defendant to
provide copies of certain materials “intended for use by the defense as evidence at the
trial.” Id. Crim.R. 16(L)(1) permits the trial court to “make orders regulating discovery,”
22. and if “at any time during the course of the proceedings it is brought to the attention of
the court that a party has failed to comply with this rule . . . the court may . . . prohibit the
party from introducing in evidence the material not disclosed, or it may make such other
order as it deems just under the circumstances.” Imposition of discovery sanctions is
discretionary, and we review the trial court’s decision for an abuse of discretion. [CITATION]
Abuse of discretion means that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. [CITATION]
{¶ 67} Also pertinent here, Crim.R. 12.2—adopted effective July 1, 2022—
requires a defendant who proposes to offer evidence or argue self-defense “not less than
thirty days before trial . . . [to] give notice in writing of such intent” and to “include
specific information as to any prior incidents or circumstances upon which defendant
intends to offer evidence related to conduct of the alleged victim . . . .” The rule requires
the defense to notify the State “of evidence that the defense may offer in support of his
self-defense claim.” [CITATION] If a defendant
fails to do so, “the court may exclude evidence offered by the defendant related to the
defense, unless the court determines that in the interest of justice such evidence should be
admitted.” Crim.R. 12.2. As with Crim.R. 16, this is a matter of discretion for the trial
court.
{¶ 68} The Ohio Supreme Court has recognized that “[t]he philosophy of the
Criminal Rules is to remove the element of gamesmanship from a trial.” [CITATION]. The discovery rules are intended to “prevent
surprise and the secreting of evidence favorable to one party . . . [and] to produce a fair
trial.” [CITATION]. Those rules provide a
range of sanctions that the trial court, in its discretion, may impose on a noncomplying
party. [CITATION].
{¶ 69} In [CITATION], the Court provided guidance for courts in exercising their
discretion under Crim.R. 16. It cautioned that under some circumstances, “the sanction
of exclusion may infringe on a criminal defendant’s Sixth Amendment right to present a
defense[.]” [CITATION]. For instance, a defendant’s Sixth Amendment right may be
infringed where all his witnesses are excluded from testifying. [CITATION]. Cognizant of this
concern, the Court held “that a trial court must inquire into the circumstances surrounding
a discovery rule violation and, when deciding whether to impose a sanction, must impose
the least severe sanction that is consistent with the purpose of the rules of discovery.” [CITATION].
at 5. “Factors to be considered by the trial court include the extent to which the
prosecution will be surprised or prejudiced by the witness’ testimony, the impact of
witness preclusion on the evidence at trial and the outcome of the case, whether violation
of the discovery rules was willful or in bad faith, and the effectiveness of less severe
sanctions.” [CITATION].
{¶ 70} Importantly, however, the Court emphasized that its holding “should not be
construed to mean that the exclusion of testimony or evidence is never a permissible
sanction in a criminal case.” [CITATION]. Rather, “[i]t is only when exclusion acts to completely
24. deny defendant his or her constitutional right to present a defense that the sanction is
impermissible.” Id.
{¶ 71} In [CITATION], the defendant attempted to
introduce into evidence the victim’s personal journals to impeach her testimony and
explain her state of mind. The trial court excluded the evidence because it had not been
disclosed before trial. The court of appeals affirmed. It recognized that the defendant
[SEGMENT 10]
had a duty to disclose the evidence to the State prior to trial. It concluded that because he
failed to do so, the trial court did not err in excluding the journals. Id. at ¶ 15.
{¶ 72} Like [CITATION], the defendant in [CITATION] argued that “even if the court was
correct in ruling that the journals were subject to pretrial discovery, exclusion of the
journals was not the least restrictive sanction the trial court could have imposed.” Id. at ¶
16. The court acknowledged that the court could have imposed less restrictive sanctions,
but it found that the defendant bore the burden of requesting a less severe sanction, and
he failed to do so, thereby waiving the argument. It also concluded that even considering
the argument, “the trial court has broad discretion in imposing a sanction consistent with
the circumstances of the case,” and it found no abuse of that discretion. Id. at ¶ 20.
{¶ 73} Here, the trial court reviewed the case law and considered the purposes of
Crim.R. 16, the circumstances that [CITATION] claimed had prevented him from disclosing the
evidence in discovery, and the extent to which the presentation of [CITATION]’s defense
would be impacted by exclusion of the evidence. It agreed that [CITATION] “certainly” would
be allowed to testify about the rap video and anything in the past that caused him to
25. believe that his life was in danger, but at the same time, it was skeptical that the video
could not have been produced earlier given Lathan’s knowledge of its existence. As
such, it excluded the video, but specifically permitted Lathan to “talk about everything
that was said in it if he wants to.” But Lathan was specifically permitted to testify about
the contents of the video, thus exclusion of the video did not prevent him from presenting
a defense. Compare [CITATION] (observing that the effect of the
sanction of excluding Papadelis’s defense witnesses was to deny Papadelis the right to
present a defense).
{¶ 74} Lathan emphasizes that the video would have bolstered his defense because
it was independent evidence that he had reason to fear imminent death or serious bodily
harm by A.R. Perhaps this is true—the video is not part of the record, so we are unable
to agree or disagree with Lathan on that point. What we can say is that Lathan was
apparently aware of the existence of this video for at least 15 months before trial, and it
was incumbent on him to locate it in time to make pretrial disclosure of it. His disclosure
of it after the State rested was contrary to the purpose of Crim.R. 16, and it violated
Crim.R. 12.2. Based on the record before us, we cannot say that the trial court abused its
discretion by excluding the video as a Crim.R. 16 sanction.
{¶ 75} We find Lathan’s first assignment of error not well-taken.
26.
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-watson', which should be replaced with `[CITATION]`. B. Manifest Weight of the Evidence
{¶ 76} In his second assignment of error, Lathan argues that his conviction is
against the manifest weight of the evidence because the record clearly supported his
claim that he shot A.R. in self-defense.
{¶ 77} Under R.C. 2901.05(B)(1), “[a] person is allowed to act in self-defense . . .
.” A person may use deadly force in self-defense where he (1) was not at fault in creating
the situation giving rise to the affray; (2) had a bona fide belief that he was in imminent
danger of death or great bodily harm and that his only means of escape from such danger
was in the use of such force; and (3) did not violate any duty to retreat or avoid the
danger. [CITATION], quoting [CITATION]. “[T]he second element of self-defense is a combined subjective and
objective test.” [CITATION]. And under the most recent amendments to R.C. 2901.09(B), with respect to the third element, “a person has
no duty to retreat before using force in self-defense . . . if that person is in a place in
which the person lawfully has a right to be.” [CITATION].
{¶ 78} Self-defense is an affirmative defense—not an element of a crime.
[CITATION]. “R.C. 2901.05(B)(1) triggers the State’s duty to disprove self-defense
so long as ‘there is evidence presented that tends to support that the accused person used
the force in self-defense.’” [CITATION]. As such, “a
defendant charged with an offense involving the use of force has the burden of producing
27. legally sufficient evidence that the defendant’s use of force was in self-defense.” Id. at ¶
25. Where that duty is triggered, “a manifest-weight-of-the-evidence standard of review
applies to the state’s burden of persuasion.” Id. at ¶ 26.
{¶ 79} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. [CITATION]. We do not view the evidence in a light most favorable to the
state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of
the conflicting testimony.’” [CITATION], citing
[CITATION]. Reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” [CITATION],
quoting [CITATION].
{¶ 80} Lathan argues that the jury lost its way in rejecting his claim of self-
defense. First, he argues that he was not at fault for creating the situation. He went to
Spotlight that night not knowing that A.R. would be there. He emphasizes that A.R. put
his mask down, took a loaded gun out of his fanny pack, cocked the gun, and walked
closer to Lathan, thereby escalating the situation.
{¶ 81} Second, Lathan argues that he had a bona fide belief that he was in
imminent danger and needed to use force. He maintains that both the State and the
28. defense agreed that there was a “beef” between A.R. and Lathan, so much so that D.D.
claimed that A.R. felt compelled to leave and D.G. testified that he sensed tension.
Lathan testified about death threats made by A.R. in the rap video, on social media, and
to Lathan personally. Moreover, A.R. had a reputation for shooting people and the night
of the shooting, people in the parking lot told Lathan that A.R. was going to shoot up the
vehicle. Lathan wanted to leave Spotlight, but his car was blocked in because of the
traffic in the crowded parking lot. And A.R. walked directly towards Lathan, masked and
carrying a loaded gun. Lathan claimed that A.R. raised his gun in Lathan’s direction and
peeked back at him, causing Lathan to believe that he needed to shoot A.R. before A.R.
shot him, his friends, or his family. Lathan acknowledges that the fatal shot was fired
into A.R.’s back, but he argues that this does not diminish his claim of self-defense.
{¶ 82} Finally, Lathan insists that he had no duty to retreat because he was
lawfully entitled to be in the parking lot at Spotlight Lounge.
{¶ 83} The State responds that while Lathan and A.R. were not friends, there was
no evidence of any prior altercations between them. It emphasizes that A.R. was shot in
the back, not in the chest, and A.R. had a clear shot of Lathan when he walked to the
front of the car, but did not shoot when he had a better opportunity to do so. The State
also highlights the fact that Lathan led the police on a chase, reaching speeds of 98 miles
per hour, then fleeing on foot when he crashed into a rock. It insists that this is not the
exceptional case where the evidence weighs heavily against conviction. Rather, credible
evidence, including witness testimony and video exhibits, supports the jury’s verdict.
29. {¶ 84} Here, the jury had before it two versions of events. Under the State’s
version of events, Lathan went to Spotlight Lounge with a gun in his possession; A.R. did
not shoot Lathan despite having a clear shot at him; A.R. had his back to Lathan and was
shot in the left side of his back and in the back of his right leg, demonstrating that his
back was to Lathan; A.R. did not raise his gun to fire at Lathan; Lathan fled and led
police on a chase, at times driving 98 miles per hour; and Lathan stated in a jailhouse
phone call that he did not shoot A.R., undermining his claim of self-defense.
{¶ 85} Under Lathan’s version of events, he did not know that A.R. would be at
[SEGMENT 11]
Spotlight when he and his friends and brother decided to go there that night; A.R. created
a rap video months earlier threatening Lathan’s life; Lathan was aware that A.R. had shot
others and believed that A.R. would shoot him; Lathan feared A.R. and tried to leave
when he saw him at Spotlight, but was trapped in the line of cars in the crowded parking
lot; Lathan did not go to Spotlight with a gun, but an unknown person slipped a gun to
him; Lathan was warned that A.R. was about to shoot up his car; D.G. perceived the
tension when Lathan got to Spotlight; Lathan saw A.R.’s friends positioned with guns;
A.R. put a mask over his face, cocked his gun, walked toward A.R., lifted his gun, and
fired; A.R. was slanted toward Lathan when Lathan fired the gun and the shot was to
A.R.’s side, near his armpit, rather than to his back; Brown Hat, D.D., and A.R. signaled
to each other as part of a plan to shoot Lathan and his friends and brother; A.R. and
others fired guns in addition to those fired by Lathan and D.D.; and Lathan fled police not
30. because he had shot A.R., but because he had a weapon in his possession when he
believed he was legally prohibited from having one.
{¶ 86} In addition to the testimony from prosecutors and defense witnesses, video
recordings were provided for the jury. Those videos were subject to interpretation.
Excerpts were zoomed in or slowed down and did not necessarily reflect how the
participants and witnesses at the scene may have perceived the incident in real time.
Some camera angles may have supported Lathan’s description of the events, while other
angles seemed to support the State’s narrative. The jury considered all this evidence and
ultimately found the State’s version of events more credible. Although under a manifest-
weight standard we consider the credibility of witnesses, we must extend special
deference to the jury’s credibility determinations given that it is the jury who has the
benefit of seeing the witnesses testify, observing their facial expressions and body
language, hearing their voice inflections, and discerning qualities such as hesitancy,
equivocation, and candor. [CITATION]. Under the facts
and evidence presented in this case, we cannot conclude that the jury clearly lost its way
in resolving evidentiary conflicts in favor of the State, thereby rejecting Lathan’s claim of
self-defense.
{¶ 87} We find Lathan’s second assignment of error not well-taken.
C. Motion for New Trial
{¶ 88} On August 18, 2022, Lathan filed a motion for a new trial. He claimed that
he was entitled to a new trial because Juror #7 failed to disclose that he knew defense
31. counsel’s wife and had made advances toward her that were rejected, purportedly leading
him to hold bias toward Lathan. The trial court denied Lathan’s motion, finding that he
had failed to show that Juror #7 engaged in any misconduct. In his third assignment of
error, Lathan argues that the trial court erred when it denied his motion.
[CITATION] As previously summarized, defense counsel’s wife attended trial on the day
her husband presented Lathan’s defense. She left soon after realizing that she knew one
of the jurors, with whom she had worked sometime between 2011 and 2014. Defense
counsel called his wife before closing arguments to ask why she had left, and she told
him. They talked about it more when he got home. She told her husband that she
believed the juror was staring at her and it made her uncomfortable.
[CITATION] Around 5:00 p.m. the next day, the jury delivered its guilty verdict. About
an hour later, the juror messaged defense counsel’s wife and said it was good to see her
and that her husband had done a good job for his first trial. At that time, she viewed
previous messages from the juror. He had last messaged her four years earlier, in 2018,
seeking career advice. After she provided her advice, he asked her if she was accepting
boyfriend applications. Defense counsel’s wife did not respond to the comment about the
boyfriend applications, and she did not hear from him again until he sent the message
after the trial. Notably, defense counsel and his wife were not married or dating in 2018,
when the juror sent the message about boyfriend applications.
[CITATION] Thirteen days after the verdict was rendered, Lathan filed a motion for new
trial under Crim.R. 33, attaching affidavits from defense counsel and his wife. Lathan
[CITATION] did not specify which provision of Crim.R. 33 he was relying on, but he claimed that
because defense counsel was “the husband of the woman who rejected his advances,” the
juror held enmity or bias toward the defense. He claimed that he would have challenged
the juror for cause if he had known that the juror and defense counsel’s wife were
acquainted.
The court set the matter for hearing at which defense counsel testified. In a
judgment journalized on January 18, 2023, the court denied Lathan’s motion. It
interpreted the motion as a motion for new trial under Crim.R. 33(A)(2), which provides
for the possibility of a new trial on the basis of jury misconduct. It found that Lathan had
failed to show that there had been any misconduct by the juror because prospective jurors
had not been asked if they knew any family members of the attorneys, and defense
counsel conceded that he had no reason to believe that Juror #7 knew that counsel was
married to a woman he knew. Moreover, it observed that defense counsel must not have
been concerned that Juror #7 could not be fair and impartial because despite having been
told by his wife of her connection to Juror #7, he did not advise the court of any concern
despite opportunity to do so.
Although the trial court decided Lathan’s motion under Crim.R. 33(A)(2),
Lathan argues on appeal that he was entitled to a new trial under Crim.R. 33(A)(6), which
permits a trial court to grant a motion for new trial where the defendant has discovered
new evidence material to the defense which the defendant could not with reasonable
diligence have discovered and produced at the trial. He argues that the information about
33. the juror’s connection with defense counsel’s wife was new evidence that could not have
been produced before conviction because the juror “did not disclose the connection until
after the verdict was rendered.” Lathan claims that further investigation was needed to
determine if Juror #7 failed to disclose at voir dire his connection to defense counsel’s
wife. He maintains that the trial court should have allowed him to question Juror #7 and
the other jurors to determine whether their deliberations were affected by Juror #7’s
connection with defense counsel’s wife.
{¶ 94} “To warrant the granting of a motion for a new trial in a criminal case,
based on the ground of newly discovered evidence, it must be shown that the new
evidence (1) discloses a strong probability that it will change the result if a new trial is
granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of
due diligence have been discovered before the trial, (4) is material to the issues, (5) is not
merely cumulative to former evidence, and (6) does not merely impeach or contradict the
former evidence.” [CITATION]. “In reviewing
circumstances suggesting juror misconduct, an appellate court must conduct a two-tier
analysis: (1) determine whether there was juror misconduct and (2) if juror misconduct is
found, determine whether it materially affected the defendant’s substantial rights.” [CITATION]. Whether brought under Crim.R. 33(A)(2) or
(6), “an appellate court reviews the denial of a motion for a new trial for an abuse of
discretion.” [CITATION].
34. {¶ 95} As an initial matter, Juror #7’s possible connection to defense counsel is
not “evidence” material to the issues at trial. Accordingly, Lathan’s motion is properly
analyzed under Crim.R. 33(A)(2), not (A)(6).
{¶ 96} A juror’s concealment of information during voir dire may be deemed
misconduct, but to warrant a new trial, the defendant must demonstrate that the juror was
not impartial. [CITATION]. “A court may infer bias
if it finds deliberate concealment, however, if the concealment was unintentional, the
defendant must show that the juror was actually biased.” Id.
{¶ 97} Having reviewed the transcripts from voir dire and from the hearing on the
motion for new trial, we agree with the trial court that Juror #7 did not conceal
information during voir dire. The prospective jurors were not asked during voir dire if
they knew any of the attorneys’ family members. Moreover, defense counsel testified
that he asked his wife “would he know that I’m your husband,” and she said “probably
not.” To obtain a new trial in a case in which a juror has not disclosed information
during voir dire, the moving party must first demonstrate that a juror failed to answer
honestly a material question on voir dire . . . .” [CITATION],
[SEGMENT 12]
paragraph one of the syllabus. Here, Lathan cannot show that Juror #7 failed to provide
an honest answer to a material question.
{¶ 98} We also agree with the trial court that the timeline of events indicates that
defense counsel knew before the verdict that there existed a connection between his wife
and Juror #7, yet he waited to alert the trial court and examine the issue until after a
35. verdict was rendered. If there was a legitimate concern about Juror #7’s potential bias
against Lathan, it could have been raised when defense counsel’s wife told her husband
that she knew the juror and that the juror had stared at her, making her feel
uncomfortable. Upon being told by his wife that she and Juror #7 were acquainted, it was
incumbent on defense counsel to bring this to the court’s attention so that it could ensure
that deliberations would not be affected by Juror #7’s connection to defense counsel’s
wife. He failed to do so.
{¶ 99} Because Juror #7 did not conceal or provide dishonest information during
voir dire and defense counsel did not raise any concern with the trial court before the
verdict was rendered, we find that the trial court did not abuse its discretion in denying
Lathan’s motion for a new trial under Crim.R. 33(A)(2).
{¶ 100} We find Lathan’s third assignment of error not well-taken.
III. Conclusion
{¶ 101} Based on the record before us, we cannot say that the trial court abused its
discretion under Crim.R. 16 and 12.2 when it excluded from evidence a recording offered
by Lathan that was not disclosed until after the State rested its case. We find Lathan’s
first assignment of error not well-taken.
{¶ 102} The jury’s decision to reject Lathan’s claim of self-defense did not render
Lathan’s conviction against the manifest weight of the evidence. The jury did not clearly
lose its way in resolving credibility determinations in favor of the State. We find
Lathan’s second assignment of error not well-taken.
36. {¶ 103} Juror #7 did not fail to disclose information requested in voir dire;
prospective jurors were not asked if they knew any family members of the attorneys.
Additionally, defense counsel waited to raise concerns about the juror’s potential bias
until after the verdict was rendered, despite being aware before closing arguments that the
juror had a connection to his wife. The trial court properly denied Lathan’s motion for
new trial under Crim.R. 33(A)(2). We find Lathan’s third assignment of error not well-
taken.
{¶ 104} We affirm the January 20, 2023 judgment of the Lucas County Court of
Common Pleas. Lathan is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also [CITATION].
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
37.
[Cite as [CITATION].]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
: Case No. 2023CA00088
:
DEREK T. EDWARDS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2022CR2666
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 11, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KYLE L. STONE D. COLEMAN BOND
STARK CO. PROSECUTOR
Cleveland Ave. NW
CHRISTOPHER A. PIEKARSKI Suite 600
110 Central Plaza South, Ste. 510 Canton, OH 44702
Canton, OH 44702-1413 Stark County, Case No. 2023CA00088
Delaney, P.J.
{¶1} Appellant Derek T. Edwards appeals from the July 10, 2023 Judgment Entry
of the Stark County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on December 14, 2022, when appellant repeatedly stabbed
the victim, his Brother.
{¶3} Appellant is four years older than Brother and the two grew up together;
they have different fathers. As they got older, they became estranged for various reasons
including fighting over girlfriends. Once they fought with each other, with appellant
attempting to hit Brother with a rake and Brother pulling appellant out of a car and throwing
him on the ground. The two did not speak for some time following this fight.
{¶4} In December 2022, the two reconnected and Brother planned to stay at
appellant’s house for a few days. Appellant picked Brother up from their Mother’s house
and brought him home. Brother was recently divorced and hoping to help appellant
through a rough time when he was purportedly suicidal.
{¶5} All was not calm at appellant’s house, however. Brother complained that
appellant left him alone in the house overnight without a phone, tv, or internet connection.
The two later fixed Brother’s phone and then did drugs together, specifically
methamphetamine.
{¶6} Brother testified he and appellant used methamphetamine around noon or
1:00 p.m. on December 14, 2022. Afterward, appellant’s Girlfriend came over and fought
with appellant. The fight escalated to the point that Brother told appellant they needed to
leave the house because the situation was too stressful. Stark County, Case No. 2023CA00088
{¶7} Brother and appellant got into appellant’s car together, intending to drive to
Alliance, but appellant said he needed to stop in Canton first. As they drove, appellant
talked about fighting with Girlfriend, and Brother responded that appellant “beat all of his
girlfriends.” Brother testified appellant was enraged by this comment and threatened to
“beat [Brother’s] ass.” Brother denied striking or punching appellant. Brother then felt
something “tapping” on his side, and realized appellant was stabbing him repeatedly.
Brother tried to stop appellant but had no strength, and appellant said “Fucking die, bitch,”
and stabbed him in the chest. Brother testified he pulled the knife out of his own chest
and attempted to fight back but didn’t have the strength to do so.
{¶8} Brother saw blood all over the interior of the car and “played dead” by
slumping over in his seat. He thought he was about to die. He felt appellant going through
the pockets of his hoodie as he was slumped in the car, and his possessions including
his phone, medical and ID cards, and medication were never found. Brother speculated
appellant threw them out of the vehicle.
{¶9} Appellant drove to Mercy Hospital as Brother continued to “play dead.” The
car stopped and appellant got out. Brother got out of the car and tried to run, but collapsed
after two steps.
{¶10} Brother testified he felt excruciating pain in the hospital parking lot, and he
was aware of people running to help him. He recalls being rolled into the hospital and
doctors working on him. He thought he was going to die that night, but woke up the next
morning surprised and glad to be alive. Stark County, Case No. 2023CA00088
{¶11} Brother was interviewed by Canton police in the hospital, where he
remained for six days. His injuries still required ongoing treatment at the time of trial.
Brother has not spoken to appellant since the night of the stabbing.
{¶12} On cross examination, Brother acknowledged he has mental health issues
and stopped taking his medication in September 2022. He acknowledged that on the day
of the stabbing, he and appellant did drugs together including methamphetamine; he
denied use of heroin or opiates, despite medical records indicating he tested positive for
opioids.
{¶13} On the evening of December 14, 2022, Canton police received a report of
a possible shooting victim at Mercy Medical Center. Patrol units responded and Detective
Vincent Romanin was assigned to investigate. Romanin learned the victim was not shot
but sustained multiple stab wounds. Detectives gathered information at Mercy Medical
Center including a surveillance video which showed a white Chrysler Aspen pull up to the
hospital. The victim exited the passenger door of the Aspen and immediately collapsed
[SEGMENT 13]
on the ground. The driver of the vehicle got out and stood over the victim for several
moments, then got back in the vehicle and fled. Detectives learned Brother was the
stabbing victim and found contact information for Brother’s wife.
{¶14} After contacting Brother’s estranged wife, detectives investigated appellant
as a potential suspect and found two addresses for him. At the first address, a white
Chrysler Aspen was parked in the driveway. Romanin requested additional units to
respond and police surrounded the residence. When Romanin approached the white
Aspen, he observed a significant amount of blood in the passenger compartment. No
one responded at the residence but a neighbor confirmed appellant lived there. Another Stark County, Case No. 2023CA00088
neighbor stated a white Jeep left the residence one to two hours before police arrived.
Detectives sought, obtained, and executed search warrants for the white Aspen and the
residence.
{¶15} The search of the Aspen revealed drying, flaking fresh blood on the
passenger seat, center console, steering wheel, and gauges. Blood was spattered across
the front of the vehicle. Police searched the residence and found knives, but none that
were used in the stabbing.
{¶16} Detectives interviewed appellant seven days after the stabbing and a
redacted video of the interview was played at trial. He said he was previously in fights
with Brother and sustained significant injuries, causing him to fear for his life. Appellant
claimed in the incident on December 14, Brother attacked him in the vehicle as they drove,
putting appellant in fear. Appellant claimed he grabbed a small pocketknife and used it
in self-defense to protect himself. Appellant claimed that as Brother continued to attack
him, Brother fell on the knife, and when he realized Brother had been stabbed, he sped
to Mercy Medical Center at a high rate of speed. Detectives interviewing appellant did
not believe his version of events and questioned him about the lengthy route he took to
get to the hospital. Appellant admittedly stated, “That’s what the fuck you get” as he stood
over Brother’s slumped body in the hospital parking lot.
{¶17} Appellant showed detectives injures he allegedly sustained in Brother’s
attack, but detectives did not find the injuries to be consistent with appellant’s story.
Appellant had no defensive wounds and had superficial injuries at best, including a
scratched lip. Detectives did not see lumps on appellant’s head, swelling on his face or
cheek, or a mark on his ear, despite his allegations about where Brother struck him. Stark County, Case No. 2023CA00088
{¶18} Appellee introduced photos of Brother’s stab wounds. A detective also
found the knife used by appellant because appellant showed him where he threw it into
the grass at Mercy Medical Center. Appellant said he threw the knife because he was
scared and didn’t know what to do with it.
{¶19} Appellant testified in his own defense, stating he had a difficult relationship
with Brother for many years and Brother has assaulted him in the past, breaking his ribs.
Appellant pointed out Brother is physically larger than him and said their relationship was
estranged in the past due to Brother’s violence toward him.
{¶20} Brother was stopping in at Mother’s house and encountered appellant
several times, leading them to rekindle the relationship. Appellant said Brother came to
stay at his house for a few days, but a problem arose when appellant fell asleep at a
friend’s house, leaving Brother overnight with no phone, tv, or internet access. When he
returned to the house, appellant apologized to Brother, but Brother was high on
methamphetamine and very agitated. Appellant’s Girlfriend came to the house and they
argued, so Brother asked to leave.
{¶21} Appellant testified he told Brother he would drive him to Alliance, but he
needed to pick up a friend in Canton first. Appellant testified that as the car approached
the intersection of 12th Street and McKinley, Brother became irate due to an issue with
his phone; appellant said Brother was “tweaking hard.” Appellant testified that as he
turned onto McKinley, Brother struck him in the face, splitting his lip; Brother continued to
strike appellant in the head and face, and slammed his head into the steering wheel, in
an attempt to wreck appellant’s truck. Stark County, Case No. 2023CA00088
{¶22} Appellant claimed he believed Brother was going to kill him, so he stabbed
Brother in self-defense. The stabbing did not stop Brother’s attack, however, and Brother
continued to hit appellant. Appellant then continued to stab Brother until the hitting
stopped, and appellant realized the extent of Brother’s injuries. Appellant testified he
realized he needed to get Brother to the hospital immediately, and drove to Mercy Medical
Center at 100 miles per hour, taking Walnut Road to Route 62 to Interstate 77.
{¶23} Appellant said he pulled into the hospital and Brother fell out of the car.
Appellant motioned to a hospital worker for help, then left the scene. Appellant testified
he fled because he believed he killed Brother and thought he would get the death penalty.
Appellant testified he was not trying to kill Brother and only wanted to stop the attack. He
said he sustained a black eye and knots on his face and neck due to Brother’s attack.
Appellant said he suffered a previous hand injury which prevents him from fighting: his
hand was cut off then reattached after a work accident. Appellant testified he struggles
to use the hand and cannot pick up a gallon of milk after the injury.
{¶24} Appellant’s mother and stepfather arrived at the hospital because he called
them and told them to check on Brother.
Indictment, trial, conviction, and sentence
{¶25} Appellant was charged by indictment with one count of attempted murder
pursuant to R.C. 2923.02(A), (B), and (D), a felony of the first degree [Count I]; one count
of felonious assault pursuant to R.C. 2903.11(A)(D)(1)(a), a felony of the second degree
[Count II]; one count of kidnapping pursuant to R.C. 2905.01(A)(2)(3)(C)(1), a felony of
the first degree [Count III]; and one count of tampering with evidence pursuant to R.C.
2921.12(A)(1)(B), a felony of the third degree [Count IV]. Stark County, Case No. 2023CA00088
{¶26} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. Appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) at the close
of appellee’s evidence and at the close of all of the evidence; the motions were overruled.
The trial court instructed the jury upon self-defense relative to Counts I and II. Appellant
was found guilty upon Counts I, II, and IV, and not guilty upon Count III. The trial court
sentenced appellant to a total aggregate prison term of 8 to 12 years.
{¶27} Appellant now appeals from the judgment entry of his convictions and
sentence.
{¶28} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶29} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST APPELLANT, AND THE CONVICTION MUST BE
REVERSED.”
{¶30} “II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”
ANALYSIS
I., II.
{¶31} Appellant’s first and second assignments of error are related and will be
considered together. Appellant argues his convictions are against the manifest weight
and sufficiency of the evidence. We disagree.
{¶32} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. [CITATION]. The standard of review Stark County, Case No. 2023CA00088
for a challenge to the sufficiency of the evidence is set forth in [CITATION] at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶33} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” [CITATION] Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
Self-defense
{¶34} Appellant first argues his convictions for attempted murder and felonious
[SEGMENT 14]
assault are against the manifest weight of the evidence because appellee failed to prove
he did not act in self-defense. Appellee's burden of disproving the defendant's self-
defense claim beyond a reasonable doubt is subject to a manifest-weight review on
appeal. [CITATION] ¶ 74, citing Stark County, Case No. 2023CA00088
[CITATION], ¶ 27. As to
the weight of the evidence, the issue is whether the jury created a manifest miscarriage
of justice in resolving conflicting evidence, even though the evidence of guilt was legally
sufficient. [CITATION],
superseded by constitutional amendment on other grounds.
{¶35} “Weight of the evidence” addresses the evidence's effect of inducing belief.
[CITATION]. When a court of appeals reverses
a judgment of a trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder's
resolution of the conflicting testimony. [CITATION], citing [CITATION]
31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982).
{¶36} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” [CITATION], quoting [CITATION]
(1st Dist. 1983).
{¶37} Appellant challenges his conviction upon one count of attempted murder
pursuant to R.C. 2923.02(A) and 2903.03(A) and (B), which provide:
.02(A): No person, purposely or knowingly, and when
purpose or knowledge is sufficient culpability for the commission of
an offense, shall engage in conduct that, if successful, would
constitute or result in the offense. Stark County, Case No. 2023CA00088
.03(A)(B):
(A) No person shall purposely cause the death of another or
the unlawful termination of another's pregnancy.
(B) No person shall cause the death of another as a proximate
result of the offender's committing or attempting to commit an offense
of violence that is a felony of the first or second degree and that is
not a violation of section 2903.03 or 2903.04 of the Revised Code.
{¶38} Appellant also challenges his conviction upon one count of felonious assault
pursuant to R.C. 2903.11(A), which states:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's
unborn;
(2) Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous
ordnance.
{¶39} When an accused asserts the defense of self-defense, he does not seek to
negate any of the elements of the offense which appellee is required to prove. Self-
defense is an admission of the prohibited conduct coupled with a claim that the
surrounding facts or circumstances exempt the accused from liability therefor—
“justification for admitted conduct.” [CITATION], ¶ 80, citing [CITATION].
{¶40} R.C. 2901.05(B)(1) provides as follows regarding self-defense: Stark County, Case No. 2023CA00088
(B)(1) A person is allowed to act in self-defense, defense of
another, or defense of that person's residence. If, at the trial of a
person who is accused of an offense that involved the person's use
of force against another, there is evidence presented that tends to
support that the accused person used the force in self-defense,
defense of another, or defense of that person's residence, the
prosecution must prove beyond a reasonable doubt that the accused
person did not use the force in self-defense, defense of another, or
defense of that person's residence, as the case may be.
{¶41} Under R.C. 2901.05(B)(1), therefore, there are two burdens. [CITATION]. The defendant
has the initial burden of production, which is the burden of producing evidence “that tends
to support” that the defendant used the force in self-defense. [CITATION]. The burden then shifts to appellee
under its burden of persuasion to prove beyond a reasonable doubt that the defendant
did not use the force in self-defense. Id. at ¶ 24. In other words, if the evidence tends to
support that the defendant acted in self-defense, then the prosecution must prove beyond
a reasonable doubt that the defendant did not act in self-defense. R.C. 2901.05(B)(1); Id.
at ¶ 26. Appellee need only disprove one of the elements of self-defense beyond a
reasonable doubt at trial to sustain its burden. [CITATION].
{¶42} In the instant case, at the close of appellant's jury trial, the trial court
provided the jury with an instruction regarding self-defense, which means that the trial Stark County, Case No. 2023CA00088
court concluded that the record contained evidence that tends to support that appellant
used the force in self-defense when he stabbed Brother. R.C. 2901.05(B)(1); [CITATION],
supra, ¶ 26. The guilty verdict means appellee met its burden of persuading the jury
beyond a reasonable doubt that appellant was not acting in self-defense when he stabbed
Brother. Id.
{¶43} When deadly force is used, the elements of self-defense that appellee must
now disprove at least one of are: (1) appellant was not at fault in creating the situation
giving rise to the affray, (2) appellant had reasonable grounds to believe and an honest
belief even if mistaken that he was in imminent danger of death or great bodily harm and
that he did not use more force than necessary to defend against the attack, and (3)
appellant must not have violated any duty to retreat or avoid the danger. [CITATION],
2023-Ohio-3137, ¶ 84, citing [CITATION], 58 Ohio St.2d 74, 79, 388 N.E.2d 755
(1979).
{¶44} As to the third element of self-defense, “a person has no duty to retreat
before using self-defense * * * if that person is in a place in which the person lawfully has
a right to be.” R.C. 2901.09(B); [CITATION], supra, ¶ 10. “Simply put, the new ‘stand your
ground’ law removes, in most cases, the duty to retreat before using self-defense.”
[CITATION], ¶ 85, citing [CITATION], 5th Dist. Stark No 2021 CA 00124, 2023-
Ohio-5, 205 N.E.3d 633, ¶ 51.
{¶45} The second element of self-defense “is a combined subjective and objective
test.” [CITATION], 77 Ohio St.3d 323, 330, 673 N.E.2d 1339 (1997). The person's
belief must be objectively reasonable under the circumstances and he must subjectively
believe he needed to resort to force to defend himself or the other person. Id. at 330–331. Stark County, Case No. 2023CA00088
{¶46} “The objective part of the test requires consideration of ‘whether,
considering all of the defendant's particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack,’ a reasonable
person would believe that danger was imminent.” Watson, supra, [CITATION],
internal citations omitted. The subjective part requires consideration of whether the
defendant himself actually believed that he was in imminent danger. Id.
{¶47} Here, the evidence does not support appellant’s contention that he
possessed the necessary objective and subjective beliefs he was in imminent or
immediate danger of death or great bodily harm. Appellant acknowledges his own
testimony conflicted with Brother’s, and claims Brother “struck him in the face and head
several times and tried to bury his head in the steering wheel of the car he was operating.”
Brief, 16. Moreover, Brother had ingested drugs and Brother had attacked appellant in
the past, thus appellant was in justified fear of Brother. Generally, neither words alone
nor fear itself will constitute evidence of serious provocation. “[W]ords alone will not
constitute reasonably sufficient provocation to incite the use of deadly force in most
situations.” [CITATION]. Fear alone is insufficient to demonstrate the kind of emotional state necessary to constitute
sudden passion or fit of rage. [CITATION].
{¶48} Even if we believe appellant’s self-serving testimony that Brother struck
appellant repeatedly as he drove, Brother’s conduct does not justify appellant’s decision
to inflict multiple stab wounds. A victim's simple pushing or punching does not constitute
sufficient provocation to incite the use of deadly force in most situations. See, [CITATION].
====== End of Court Ruling ====== Stark County, Case No. 2023CA00088
{¶49} Implicit in the second element of self-defense is the requirement that the
[SEGMENT 15]
degree of force used was warranted under the circumstances and proportionate to the
perceived threat. Watson, supra, [CITATION], ¶ 88, citing [CITATION]. As to the degree of force that is permitted,
the defendant is privileged to use the amount of force that is reasonably necessary to
repel the attack. [CITATION].
{¶50} Again, even if we were to accept appellant’s statements as true, Brother
punched and struck appellant with his fists; appellant fails to explain why he didn’t stop
the car and call police instead of pulling a knife and stabbing Brother repeatedly. Nothing
in appellant’s testimony describes an attack by Brother that would justify the viciousness
of appellant’s response. If appellant's fear was only of physical harm, he was allowed by
law only to use an amount of force that was warranted under the circumstances and
proportionate to the perceived threat. Watson, supra, [CITATION], ¶ 89. Appellant's
decision to stab Brother repeatedly was deadly force and was disproportionate to the
threat he faced under these circumstances. Id.
{¶51} While appellant was free to argue that he was justified in using deadly force,
and the trial court instructed the jury accordingly, the jury may have reasonably chosen
to reject his argument. Upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which appellant was convicted. We further find there is substantial evidence
proving beyond a reasonable doubt that appellant was not acting in self-defense when he
stabbed Brother and the degree of force used by appellant was unwarranted under the
circumstances and disproportionate to the perceived threat. Therefore, in light of the Stark County, Case No. 2023CA00088
evidence discussed above, as well as the record in its entirety, we do not find the jury
clearly lost its way in finding appellant guilty of attempted murder and felonious assault
and that appellant was not acting in self-defense. We do not find that the jury disregarded
or overlooked compelling evidence that weighed against conviction.
Manifest weight and sufficiency: intent
{¶52} Next, appellant argues he didn’t intent to kill Brother as evidenced by his
decision to take him to the hospital. We note the evidence established appellant
essentially dumped Brother at the hospital and fled; we fail to discern, and appellant does
not explain, how these actions repudiate his criminal intent when he stabbed Brother
repeatedly. Under Ohio law, the trier of fact may infer an intention to kill from the
surrounding circumstances where the natural and probable consequence of a defendant's
actions is to produce death. [CITATION], ¶ 65, citing [CITATION], internal citation omitted. Appellant admittedly stood over Brother and said,
“That’s what the fuck you get,” which directly contradicts his claim he was worried about
Brother’s survival at the hospital.
{¶53} Upon our review of the record and transcript in a light most favorable to
appellee, we find that a reasonable finder of fact could have found beyond a reasonable
doubt that appellant purposely attempted to cause Brother’s death by repeatedly stabbing
him inside the vehicle. Id., ¶ 66. Intent to kill a victim may be inferred from the use of a
knife to stab the victim multiple times, from which evidence the jury could conclude
appellant acted purposely with the specific intention of causing the victim’s death. See, Stark County, Case No. 2023CA00088
[CITATION]
Manifest weight and sufficiency: tampering with evidence
{¶54} Finally, appellant argues there is insufficient evidence he committed the
offense of tampering with evidence because although he threw the knife into the grass at
Mercy Medical Center, he later revealed its location to investigators. Appellant was
charged with one count of tampering with evidence pursuant to R.C. 2921.12(A)(1), which
states, “no person, knowing that an official proceeding or investigation is in progress, or
is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any
record, document, or thing, with purpose to impair its value or availability as evidence in
such proceeding or investigation.”
{¶55} In the instant case, appellee produced evidence appellant discarded the
knife in the grass because he knew an investigation into the stabbing was likely; he told
police in his interview he was scared and didn’t know what to do, and “just wanted to get
rid of” the knife. Appellant was admittedly acting with the belief he likely killed Brother
and feared the potential penalty of life in prison or the death penalty.
{¶56} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness's credibility. Indeed, the trier of
fact need not believe all of a witness' testimony, but may accept only portions of it as true.
[CITATION] Stark County, Case No. 2023CA00088
{¶57} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” [CITATION], quoting [CITATION]. The jury
neither lost his way nor created a miscarriage of justice in convicting appellant. Based
upon the foregoing and the entire record in this matter, we find appellant's convictions are
not against the manifest weight of the evidence. To the contrary, the jury appears to have
fairly and impartially decided the matter. The jury heard the witnesses, evaluated the
evidence, and was convinced of appellant's guilt.
{¶58} Our review of the entire record reveals no significant inconsistencies or
other conflicts in appellee’s evidence which would demonstrate a lack of credibility of the
witnesses sufficient to find the jury lost its way to finding appellant guilty. [CITATION], ¶ 49.
{¶59} Appellant’s first and second assignments of error are overruled. Stark County, Case No. 2023CA00088
CONCLUSION
{¶60} Appellant’s two assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Baldwin, J. and
King, J., concur.
[Cite as [CITATION].]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Andrew J. King, J.
:
-vs- :
: Case No. 2023 CA 0046
CLAUDE K. KNIPP :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 22CR810 R
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 4, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JODIE SCHUMACHER WILLIAM T. CRAMER
Prosecuting Attorney
Olde Worthington Road
BY: MEGAN HOBART Suite 200
Assistant Prosecutor Westerville, OH 43082
38 South Park Street, Second Floor
Mansfield, OH 44902 [Cite as [CITATION].]
Gwin, P.J.
{¶1} In November 2022, defendant-appellant Claude Kerry Knipp [“Knipp”] drove
his Jeep into his nephew, severely breaking the nephew’s leg. Knipp argued that he was
acting in self-defense. A jury rejected Knipp’s self-defense claim and found Knipp guilty
of two counts of felonious assault, the first under R.C. 2903.11(A)(2), for using a deadly
weapon, namely a motor vehicle, and the second under R.C. 2903.11(A)(1), for causing
serious physical harm. The issue presented in this appeal is whether the jury clearly lost
their way and created such a manifest miscarriage of justice by rejecting his self-defense
claim that his convictions must be reversed and a new trial ordered. We conclude they
did not because under the facts presented Knipp’s act of deliberately changing direction
so that he could hit the unarmed victim was unwarranted under the circumstances and
disproportionate to the perceived threat. Therefore, we affirm the judgment of the
Richland County Court of Common Pleas.
Facts and Procedural History
Sixty-Eight-Year-Old Knipp And His Forty-Eight-Year-Old Nephew Joshua
Have a Falling Out
{¶2} When Knipp moved to St. Louis, Missouri, he took his nephew with
him to attempt to be his mentor. [CITATION]. Things began to sour between
the pair when Joshua was arrested in St. Louis for statutory rape. [CITATION].
Joshua was not convicted of a crime. Knipp testified that his fiancé
agreed not to press charges and Joshua was told to leave Missouri and never
return. [CITATION]. Joshua left St. Louis shortly after that, however, Knipp Richland County, Case No. 2023 CA 0046
remained in St. Louis until he retired from his job as a driver of a concrete truck.
[CITATION]. He then moved back to Mansfield around 2016 - 2017. [CITATION].
[SEGMENT 16]
Joshua Beats Knipp to a Pulp
{¶3} Joshua has two sons, ages eleven and thirteen. Joshua has had sole
custody of them since 2015. [CITATION]. Joshua had been told that Knipp was having
relations with the mother of Joshua’s children and was attempting to interfere with
Joshua’s attempt to gain custody of them. [CITATION].
{¶4} Joshua was granted a restraining order against Knipp that expired in
September 2020. [CITATION]. On April 23, 2020, Knipp drove past Joshua’s
home on his way to pick-up a friend to go out to breakfast. [CITATION]. Joshua
came outside cursing and threatening Knipp. Joshua hurled bricks at Knipp’s
vehicle. [CITATION]. The pair began to argue and threaten each other. [CITATION].
The verbal sparring descended into a physical fight that resulted in
Joshua hitting Knipp in the face with a brick. [CITATION]. The resulting injury
caused serious, permanent damage to Knipp’s right eye. [CITATION]. Knipp
was charged with violating the restraining order as a result of this confrontation.
[CITATION]. Joshua admitted that he beat Knipp to a pulp that day. [CITATION].
Joshua denied injuring or even knowing about Knipp’s injury, claiming instead
that his grandmother told him that Knipp’s eye was injured as a result of a
childhood injury involving an exploding golf ball. [CITATION].
The Incident and Its Aftermath
{¶5} On November 5, 2022, Joshua woke up early and drove to the Corner
Market by himself to get some items for breakfast. [CITATION]. Knipp followed his morning Richland County, Case No. 2023 CA 0046
routine and drove to the Corner Market to get coffee and lottery tickets. [CITATION] at 428.
Surveillance video from the store showed Knipp’s vehicle pulling in as Joshua was exiting
the store. [CITATION] at 230. Knipp never gets out of his vehicle; however, he rolls down the
window. Upon seeing one another, the pair begin to exchange insults and threats. Knipp
claimed that he had been told in the past that Joshua had been telling people that he had
a bullet with Knipp’s name on it. [CITATION] at 429; 446. Knipp testified that he last saw Joshua
with a gun four or five years ago. Id. at 477- 478. It was a small revolver that Joshua hid
in his crotch. Id. Knipp testified that Joshua was threatening his life, the lives of his
grandchildren and further, was threatening to take his other eye.
{¶6} Knipp testified that Joshua got into his vehicle and got back out several
times. [CITATION] at 430. When Knipp saw Joshua get into his vehicle he believed that Joshua
was going to retrieve a gun. Id. at 435; 472. Knipp testified that he was so afraid he nearly
urinated his pants. Id. at 434; 448. Knipp admitted that he never saw Joshua with a gun,
or any type of weapon in his hands during the encounter. Id. at 445-446; 449 - 450; 453;
460; 470. However, Knipp testified that Joshua could have had a gun concealed in his
crotch. Id. at 460- 461.
{¶7} Knipp admitted that he hit Joshua with his Jeep. [CITATION] at 442. Knipp stated he
felt he had to attempt to “knock him [Joshua] on his ass so I could get out of there safely.”
[CITATION] at 442. Knipp believed that if he did not “take him out on his ass” it would be Knipp’s
last day on earth. Id. at 457. Knipp admitted that Joshua never charged his vehicle before
Knipp drove into him. Id. at 456 - 457. Knipp admitted that Joshua was moving to the left
of Knipp’s Jeep when Knipp turned his wheels to the left and drove into him. Id. at 458-
459. Knipp admitted that he could have driven to his left, gone straight or backed up and Richland County, Case No. 2023 CA 0046
exited the parking lot instead of hitting Joshua. [CITATION] Knipp admitted telling a
bystander that Joshua was a child molester before driving away. Id. at 462-465.
{¶8} Because the surveillance videos the store provided to the police were of
such a poor quality, Deputy Logan Dilley of the Mansfield Sherriff’s Office took the
department’s county-issued digital camera back to the store and recorded the footage off
the store’s video monitor. [CITATION] However, Deputy Dilley recorded only
the portion of the video showing Knipp’s Jeep hitting Joshua. Id. at 298; 334; 338 - 339.
Surveillance video from the scene showed Joshua moving to his right and Knipp’s Jeep
turn toward Joshua before striking him. [CITATION] Joshua’s leg was broken. He
required surgery to place ten pins and 118 staples. [CITATION]
{¶9} A bystander followed Knipp home; however, when deputies went to the
residence Knipp was not at home. Later that night they issued an arrest warrant. Knipp
was arrested several days later at his house. [CITATION]
{¶10} At the close of evidence, the jury was instructed on self-defense. During
deliberations the jury asked for an explanation of what it means to have an honest "even
if mistaken" belief in the need to act in self-defense. [CITATION] The judge referred the
jury to the plain meaning of the words. The jury also asked, "If words alone do not justify
the use of force, what does? Physical touch, gestures, etc.?" The judge referred the jury
back to the jury instructions. Id. at 616. The jury also asked for the difference between
"imminent" and "immediate". Id. at 620. The judge provided the jury with dictionary
definitions of each term. Id. at 620-632. After further deliberation, the jurors found Knipp
guilty on both counts. Richland County, Case No. 2023 CA 0046
{¶11} At sentencing on August 3, 2023, the parties agreed that the two counts
merged and the state elected to proceed on Count Two felonious assault, causing serious
physical harm. Sent. T., Aug. 1, 2023 at 640. Knipp was sentenced to five to seven and
a half years imprisonment. Knipp was also sentenced to 18 months to three years of post-
release control and $75,000 restitution. Six days of jail time credit was ordered to be
applied to the sentence.
{¶12} A restitution hearing was held on September 13, 2023. The judge noted that
Joshua testified and admitted three exhibits in his quest to receive lost wages as
restitution. The trial judge found that Joshua was not working at the time of the incident
and had not worked in the fourteen months before the incident. The trial judge further
found that Joshua did not offer any evidence other than his own self-serving testimony
that he was planning to go back to work in November of 2023. The trial judge found that
Joshua did not meet his burden to prove lost wages to a reasonable degree of certainty.
The trial judge found therefore, that Joshua was not owed restitution by Knipp. The trial
judge vacated the previous order of August 3, 2023 awarding Joshua $75,000.00 in
restitution.
Assignment of Error
{¶13} Knipp raises one Assignment of Error,
{¶14} “I. THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT A FINDING
THAT THE STATE DISPROVED SELF-DEFENSE BEYOND A REASONABLE DOUBT.
Standard of Review
{¶15} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the Richland County, Case No. 2023 CA 0046
evidence of guilt was legally sufficient. [CITATION]
{¶16} Weight of the evidence addresses the evidence's effect of inducing belief. [CITATION] When a court of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as a “thirteenth juror”
and disagrees with the fact finder’s resolution of the conflicting testimony. [CITATION] (quotation marks omitted); [CITATION]
{¶17} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” [CITATION] quoting [CITATION]. The Ohio Supreme Court has
emphasized: “‘[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment and every reasonable presumption
must be made in favor of the judgment and the finding of facts. * * *.’” [CITATION] quoting [CITATION] quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at 191–
[SEGMENT 17]
192 (1978). The central question is whether “there is substantial evidence upon which a
jury could reasonably conclude that all the elements have been proved beyond a
reasonable doubt.” (Emphasis sic.) [CITATION] Richland County, Case No. 2023 CA 0046
citing [CITATION], syllabus, superseded by constitutional
amendment on other grounds as stated in [CITATION].
{¶18} Further, to reverse a jury verdict as being against the manifest weight of the
evidence, a unanimous concurrence of all three judges on the court of appeals panel
reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio
Constitution. [CITATION], citing Thompkins at
paragraph four of the syllabus.
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the convictions must be reversed and a new
trial ordered
Self-defense
{¶19} When an accused asserts the defense of self-defense he does not seek to
negate any of the elements of the offense which the state is required to prove. Self-
defense is not merely a denial or contradiction of evidence offered by the state to prove
the essential elements of the charged crime. Rather, it is an admission of the prohibited
conduct coupled with a claim that the surrounding facts or circumstances exempt the
accused from liability therefor— “justification for admitted conduct.” [CITATION].
{¶20} In order to determine the respective duties with respect to a self-defense
claim, we must turn to R.C. 2901.05(B)(1),
(B)(1) A person is allowed to act in self-defense, defense of another,
or defense of that person’s residence. If, at the trial of a person who is
====== End of Processed Court Ruling ====== Richland County, Case No. 2023 CA 0046
accused of an offense that involved the person’s use of force against
another, there is evidence presented that tends to support that the accused
person used the force in self-defense, defense of another, or defense of
that person’s residence, the prosecution must prove beyond a reasonable
doubt that the accused person did not use the force in self-defense, defense
of another, or defense of that person’s residence, as the case may be.
{¶21} Under R.C. 2901.05(B)(1) there are two burdens. [CITATION], ¶ 49 (5th Dist.).
The defendant has the initial burden of production, which is the burden of producing
evidence “that tends to support” that the defendant used the force in self-defense. [CITATION],
¶ 21. The burden then shifts to the state under its burden
of persuasion to prove beyond a reasonable doubt that the defendant did not use the
force in self-defense. Id. at ¶ 24. In other words, if the evidence tends to support that the
defendant acted in self-defense, then the prosecution must prove beyond a reasonable
doubt that the defendant did not act in self-defense. R.C. 2901.05(B)(1); Id. at ¶26;
[CITATION], at ¶49; [CITATION], ¶ 68. The state need only
disprove one of the elements of self-defense beyond a reasonable doubt at trial to sustain
its burden. [CITATION] at ¶49. [CITATION], ¶28 (5th Dist.).
{¶22} At the close of Knipp’s jury trial, the trial judge provided the jury with an
instruction regarding self-defense, which means that the trial judge concluded that
the record contained evidence that tends to support that Knipp used the force in self-
defense when he struck Joshua. R.C. 2901.05(B)(1). [CITATION],
====== End of Part ====== Richland County, Case No. 2023 CA 0046
4462 at ¶ 26. The guilty verdict means that the state met its burden of persuading the
jury beyond a reasonable doubt that Knipp was not acting in self-defense when he
struck Joshua. Id.
{¶23} When deadly force is used, the elements of self-defense that the state must
now disprove at least one of are: (1) Knipp was not at fault in creating the situation giving
rise to the affray, (2) Knipp had reasonable grounds to believe and an honest belief even
if mistaken that he was in imminent danger of death or great bodily harm and that he did
not use more force than necessary to defend against the attack and (3) Knipp must not
have violated any duty to retreat or avoid the danger. [CITATION]; See also, [CITATION].
{¶24} As to the third element of self-defense, we note that the trial judge instructed
the jury in accordance with the recently amended “stand your ground” law in Ohio. 4T. at
539. That law now indicates that “a person has no duty to retreat before using self-
defense. . .if that person is in a place in which the person lawfully has a right to be.” R.C.
2901.09(B); [CITATION]. “‘Simply put, the new ‘stand your ground’ law removes, in most cases, the duty to retreat before using self-defense.’” [CITATION].
{¶25} The second element of self-defense “is a combined subjective and objective
test.” [CITATION]. The person’s belief must be Richland County, Case No. 2023 CA 0046
objectively reasonable under the circumstances and he must subjectively believe he
needed to resort to force to defend himself or the other person. Id. at 330–331.
“The objective part of the test requires consideration of ‘whether,
considering all of the defendant’s particular characteristics, knowledge, or
lack of knowledge, circumstances, history, and conditions at the time of the
attack,’ a reasonable person would believe that danger was imminent.”
[CITATION]
The subjective part requires consideration of whether the
defendant himself actually believed that he was in imminent danger. Id.
[CITATION]
The State Proved Beyond a Reasonable Doubt that Knipp Did Not Use the
Force in Self-defense
{¶26} Here, the evidence does not support that Knipp possessed the necessary
objective and subjective beliefs he was in imminent or immediate danger of death or great
bodily harm. Generally, neither words alone nor fear itself will constitute evidence of
serious provocation. "[W]ords alone will not constitute reasonably sufficient provocation
to incite the use of deadly force in most situations." [CITATION].
Fear alone is insufficient to demonstrate the kind of emotional state
necessary to constitute sudden passion or fit of rage. [CITATION]. Cases have held that a victim's simple pushing or punching does not
====== End of Document ====== Richland County, Case No. 2023 CA 0046
constitute sufficient provocation to incite the use of deadly force in most situations. See,
[CITATION] (concluding that sufficient provocation did not
exist when the victim grabbed the defendant by the testicles and the arm); [CITATION]
(concluding that the victim's conduct in approaching the
defendant with a hammer and stating "come on" did not constitute sufficient provocation).
[CITATION] ("We find that a mere shove and
a swing (which appellant by his own testimony ducked) are insufficient as a matter of law
to constitute serious provocation reasonably sufficient to incite or arouse appellant into
using deadly force."). Although stated in terms of provocation, we find the same analysis
would apply to whether a defendant, by reason of the actions of the victim, possessed the
necessary objective and subjective beliefs he was in imminent or immediate danger of
death or great bodily harm. [CITATION].
{¶27} Implicit in the second element of self-defense is the requirement that the
degree of force used was warranted under the circumstances and proportionate to the
perceived threat. [CITATION]. As to the degree of
force that is permitted, the defendant is privileged to use the amount of force that is
reasonably necessary to repel the attack. [CITATION]. In
other words, one may use a commensurate amount of force as the circumstances require
to protect oneself against an attack. [CITATION].
{¶28} Knipp testified to only verbal threats made by Joshua during the November
5, 2022 incident prior to Knipp’s use of deadly force. The video evidence shows Joshua
====== End of Part ====== Richland County, Case No. 2023 CA 0046
was moving away from Knipp’s vehicle, when Knipp turns his vehicle in Joshua’s direction
before striking him. Knipp admitted Joshua did not charge Knipp and that Joshua was not
within arm’s reach of Knipp. Knipp remained inside his vehicle throughout the encounter.
{¶29} Even setting aside the question of who the aggressor was, Knipp testified
that he did not see Joshua with any sort of weapon in his hands at any time during the
altercation. Knipp further admitted that nothing prevented him from choosing any of the
several alternative means available to him to have exited the parking lot instead of striking
Joshua. Although Knipp had no duty to retreat, he likewise could not turn his vehicle to
deliberately run into an individual that was moving away from him. If Knipp’s fear was only
of physical harm, he was allowed by law only to use an amount of force that was
[SEGMENT 18]
warranted under the circumstances and proportionate to the perceived threat. Knipp’s
decision to run into Joshua with his vehicle was deadly force and was disproportionate to
the threat he faced under these circumstances.
The Jury Did Not Lose Its Way Concluding that Knipp was Guilty and that
He was not Acting in Self-defense
{¶30} The term “‘manifest weight of the evidence’. . .relates to persuasion.”
[CITATION], ¶19. It “concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather than
the other.’” (Emphasis deleted.) [CITATION], 387(1997),
quoting Black's Law Dictionary (6th Ed. 1990); [CITATION], ¶ 26. In
weighing the evidence, the court of appeals must always be mindful of the presumption
in favor of the finder of fact.” [CITATION], ¶ 21. “The underlying rationale of giving deference
to the findings of the trial court rests with the knowledge that the [trier of fact] is best able Richland County, Case No. 2023 CA 0046
to view the witnesses and observe their demeanor, gestures and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.” [CITATION]
{¶31} When there is conflicting testimony presented at trial, a defendant is not
entitled to a reversal on manifest weight grounds merely because inconsistent evidence
was presented. “‘If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the verdict and judgment.’” [CITATION]
{¶32} The interplay between the presumption of correctness and the ability of an
appellate court to reverse a verdict based on the manifest weight of the evidence has
been stated as follows, “’Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing court
as being against the manifest weight of the evidence.’” [CITATION]
See, also, [CITATION] “The central question is whether ‘there is
substantial evidence upon which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.’ (Emphasis sic.) [CITATION] Richland County, Case No. 2023 CA 0046
{¶33} While Knipp was free to argue that he was justified in using deadly force,
and the trial court instructed the jury accordingly, the jury may have chosen to discredit
his testimony. The jury saw Knipp, Joshua and all the witnesses subjected to cross-
examination. The jury also reviewed the surveillance video showing the events as they
happened in real time. The trial judge gave the jury the requested instruction on self-
defense. The jury asked several questions concerning the law of self-defense; however,
the jury ultimately concluded that Knipp did not act in self-defense. Thus, we find
substantial evidence exists in the record for the jury’s decision that the state disproved
beyond a reasonable doubt Knipp’s self-defense claim.
{¶34} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which Knipp was convicted. We further find there is substantial evidence
proving beyond a reasonable doubt that the degree of force used by Knipp was
unwarranted under the circumstances and disproportionate to the perceived threat.
Therefore, in light of the evidence discussed above, as well as the record in its entirety,
we find the jury clearly did not lose its way concluding that Knipp was guilty and that he
was not acting in self-defense. We find that the jury did not disregard or overlooked
compelling evidence that weighed against conviction.
{¶35} Knipp’s sole Assignment of Error is overruled. Richland County, Case No. 2023 CA 0046
{¶36} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, J., and
King, J., concur
[CITATION]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 23CA0060
:
NATHAN HELMONDOLLAR :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 22CR172
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 29, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JENNY WELLS CHRIS BRIGDON
LICKING CO. PROSECUTOR
Somerset Rd.
KENNETH OSWALT Thornville, OH 43076
20 S. Second St., 4th Floor
Newark, OH 43055 Licking County, Case No. 2023CA0060
Delaney, P.J.
{¶1} Appellant Nathan Helmondollar appeals from the April 26, 2023 Judgment
Entry of sentence of the Licking County Court of Common Pleas. Appellee is the state of
Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The parties do not dispute the following facts which are adduced from the
record of appellant’s jury trial.
{¶3} Jane Doe is appellant’s ex-girlfriend. She was “exploring a romantic
relationship” with Sam Roe, an acquaintance of appellant’s. The two men developed a
rivalry over Jane Doe and exchanged antagonistic text messages in the days preceding
the shooting giving rise to the instant case. Roe’s texts to appellant included, “Wait till I
see you bitch boy,” “See the thing is wait till I see you[,] Gaine the fuck over;” “what are
you waiting on bitch;” “I bet you don’t show up[,] where the fuck are you;” and “Come
square up lets see whos a bitch” (sic throughout). Roe agreed the texts amounted to an
invitation to come over and fight, although he never intended to act on the threats and
only sought to scare appellant.
{¶4} On March 4, 2021, Doe and Roe spent the day together and then went to a
friend’s house where Roe drank and smoked marijuana. Around 9:00 p.m., they heard
appellant arrive outside on his motorcycle. Jane Doe went outside and spoke to
appellant, then told Roe she was leaving with appellant.
{¶5} Roe gathered his things in a backpack and left the house. The backpack
was over his shoulder and a cigarette was in his hand. As Roe walked past appellant,
appellant said “hey pal” and shot Roe once in the right center of his back. Roe testified Licking County, Case No. 2023CA0060
he was angry after he was shot and tried to push over appellant’s motorcycle, but did not
have the energy to do so and fell to the ground. The gunshot wound was located in the
right center of Roe’s back, with the bullet lodged just below the skin. Later at the hospital,
the bullet “popped out” on its own.
{¶6} Witness 1 lived in the same apartment complex and was looking out her
window watching for her husband. She noticed two men outside near a car and a
motorcycle. One man turned sideways and appeared to be smoking a cigarette. The
other man raised a gun and shot the other man once. Witness 1’s windows were closed
and she did not hear any conversation, but the men did not appear to fight prior to the
shooting. Witness 1 did not observe the victim to have any weapons and he did not
appear to threaten the shooter. The shooter fled and Witness 1 called 911; the call was
played by appellee at trial. Witness 1 testified she had a clear view of events.
{¶7} Witness 2 also lived in the apartment complex and went outside after she
heard a gunshot, in time to see a motorcycle drive away. Witness 2 assisted the victim
and stayed with him until police arrived.
{¶8} Roe told Officer Lewis, one of the first on scene, that appellant shot him.
Lewis removed a knife from a sheath hanging on a necklace around Roe’s neck.
{¶9} Roe also told Officer Thomas that appellant shot him. Thomas checked
Roe’s wounds and observed a bullet protruding from the area of his left rib cage. Thomas
also found a shell casing next to Roe’s foot and collected it as evidence, noting the
location indicated Roe was likely close to the shooter. Licking County, Case No. 2023CA0060
{¶10} A police weapons expert testified appellant’s firearm was a Taurus 709 Slim
nine-millimeter single-stack handgun designed to be concealed, although he didn’t know
whether the firearm was concealed in this case.
{¶11} Appellant fled after the shooting and police eventually tracked him to his
[SEGMENT 19]
mother’s house, where they initiated surveillance and eventually arrested appellant on a
traffic stop.
{¶12} Police interviewed appellant at the department and the interview was one
of appellee’s exhibits at trial. Appellant at first claimed to have no idea why he was there.
Police asked if he was at the apartment, and he first claimed he picked up Jane Doe and
left; appellant said Roe was a “stalker” who held Doe against her will and he heard through
Doe that Roe “got messed up.”
{¶13} When police told appellant they already spoke to witnesses at the scene,
appellant admitted shooting Roe. He said Jane Doe went back inside the apartment to
get her bag and Roe came out, charging at appellant. Roe spit in appellant’s face and
mumbled that Doe was leaving with him instead. Appellant claimed Roe shouldered him
to the side and rammed his motorcycle, damaging the turn signal. Appellant further
claimed Roe then lunged at him with his right hand from about three feet away, causing
him to draw his firearm and shoot Roe in self-defense because he was in fear. Appellant
believed he shot Roe in the left side. Appellant said Jane Doe and others came outside
in a panic, and he and Doe rode off on his motorcycle.
{¶14} Appellant stated he was “open carrying” the firearm on a belt clip, although
he admittedly did not have a concealed-carry permit. After the shooting, he put the gun
in his pocket when he rode away. Licking County, Case No. 2023CA0060
{¶15} Detectives testified appellant’s statement did not match the physical
evidence, including the entrance wound to Roe’s back. Appellant’s account omitted the
fact that he shot Roe in the back.
{¶16} Appellant told detectives he kept the firearm in a safe in his bedroom and
gave them the passcode to access the safe. Police also found rifles in appellant’s
bedroom which would not fit in the safe.
{¶17} Detective Fumi testified that police attempted to interview friends at the
apartment on the night of the incident, but some of them were too intoxicated to interview.
The detective speculated some were under the influence of some type of drug and were
behaving as though they used methamphetamine.
{¶18} Detective Farmer interviewed Roe in the ambulance after the shooting. Roe
said he was trying to start a relationship with Jane Doe and appellant arrived. Roe said
he was attempting to remove himself from the situation to avoid a confrontation but
appellant shot him in the back.
{¶19} Appellant was charged by indictment with one count of felonious assault
pursuant to R.C. 2903.11(A)(2), a felony of the second degree [Count I]; one count of
carrying concealed weapons pursuant to R.C. 2923.12(A)(2), a felony of the fourth degree
[Count II]; and one count of improper handling of firearms in a motor vehicle pursuant to
R.C. 2923.16(B), a felony of the fourth degree. All three counts of the indictment were
accompanied by firearm specifications.
{¶20} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. Appellant was found guilty as charged and sentenced to a total aggregate prison Licking County, Case No. 2023CA0060
term of 8 to 10½ years, including a mandatory 3-year consecutive sentence for the
(merged) firearm specifications.
{¶21} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶22} “I. WAS THE APPELLANT DEPRIVED OF HIS STATE AND FEDERAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE
COUNSEL FAILED TO OBJECT TO EVIDENCE THAT APPELLANT HAD AN
EXTENSIVE CACHE OF WEAPONS IN HIS BEDROOM?”
{¶23} “II. WAS THE CONVICTION FOR FELONIOUS ASSAULT SUPPORTED
BY THE WEIGHT OF THE EVIDENCE ON THE ISSUE OF WHETHER APPELLANT
ACTED IN SELF-DEFENSE?”
{¶24} “III. W[ERE] THE INDEFINITE PRISON TERMS IMPOSED UNDER THE
REAGAN TOKES LAW VIOLAT[IVE OF] THE JURY TRIAL GUARANTEE, THE
DOCTRINE OF SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES
UNDER THE FEDERAL AND STATE CONSTITUTIONS?”
ANALYSIS
I.
{¶25} In his first assignment of error, appellant argues he received ineffective
assistance of defense trial counsel. We disagree.
{¶26} Appellant argues defense trial counsel was ineffective in failing to object to
detectives’ testimony about rifles, knives, and a sword found in his bedroom during the
search for the firearm used in the shooting. Appellee moved to admit exhibits including
photos of the unrelated weapons in appellant’s bedroom; defense trial counsel voiced no Licking County, Case No. 2023CA0060
objection to admission of the photos but the trial court sua sponte questioned the photos
and noted the unrelated weapons were not relevant. Appellee argued the photos were
relevant its assertion appellant put only the Taurus 9-millimeter in the safe, intending to
hide it. Defense counsel pointed out appellant told police the firearm was in the safe and
provided the passcode. The trial court excluded the photos, commenting “I think you’re
using the weapons there to make him out to be a violent and bad person, and I’d find that
the prejudicial impact outweighs any probative value.” T. 327-329.
{¶27} The photos were not entered into evidence, but detectives’ testimony did
include statements about the other weapons found in appellant’s bedroom. Appellant
argues defense trial counsel was ineffective in failing to object to these statements. To
succeed on a claim of ineffectiveness, a defendant must satisfy a two-prong test. Initially,
a defendant must show that trial counsel acted incompetently. See, [CITATION]. In assessing such claims, “a court
must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689, citing [CITATION].
{¶28} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” [CITATION]. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690. Licking County, Case No. 2023CA0060
{¶29} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
[CITATION].
{¶30} Appellant argues defense trial counsel should have objected to the
testimony about and photos of his “stockpile of weapons.” Brief, 3. The trial court sua
sponte excluded the latter and appellant cannot point to any prejudice therefrom. We are
left with counsel’s failure to object to detectives’ testimony about weapons found in
appellant’s bedroom, Appellant does not demonstrate how trial counsel's failure to object
to the testimony affected the outcome of the trial. Indeed, trial counsel's failure to object
could have been tactical. “Trial counsel is not ineffective for choosing, for tactical reasons,
not to pursue every possible trial objection.” [CITATION], internal citation omitted. Trial counsel may
not have wanted to call attention to the statement. See, [CITATION]. Moreover, the Supreme Court of Ohio held that
“the failure to make objections is not alone enough to sustain a claim of ineffective
assistance of counsel.” [CITATION].
{¶31} Finally, even if counsel's failure to object reflected deficient performance,
appellant has failed to establish prejudice under [CITATION] because he fails to
demonstrate any reasonable probability that, but for the jury hearing about his other Licking County, Case No. 2023CA0060
weapons, the result of his trial would have been different. [CITATION], ¶ 62.
{¶32} Accordingly, appellant’s first assignment of error is overruled.
II.
{¶33} In his second assignment of error, appellant argues his felonious assault
conviction is against the weight of the evidence because he acted in self-defense. We
disagree.
{¶34} Appellee's new burden of disproving the defendant's self-defense claim
beyond a reasonable doubt is subject to a manifest-weight review on appeal. [CITATION], ¶ 74, citing [CITATION], ¶ 27. As to the weight
of the evidence, the issue is whether the jury created a manifest miscarriage of justice in
resolving conflicting evidence, even though the evidence of guilt was legally sufficient.
[CITATION], superseded by constitutional amendment on other grounds.
{¶35} “Weight of the evidence” addresses the evidence's effect of inducing belief.
[CITATION]. When a court of appeals reverses
a judgment of a trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder's
[SEGMENT 20]
resolution of the conflicting testimony. [CITATION], citing [CITATION].
{¶36} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost Licking County, Case No. 2023CA0060
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” [CITATION], quoting [CITATION].
{¶37} Appellant challenges his conviction upon one count of felonious assault
pursuant to R. C. 2903.11(A)(2), which provides that no person shall cause or attempt to
cause physical harm to another by means of a deadly weapon or dangerous ordnance.
When an accused asserts the defense of self-defense, he does not seek to negate any
of the elements of the offense which appellee is required to prove. Self-defense is an
admission of the prohibited conduct coupled with a claim that the surrounding facts or
circumstances exempt the accused from liability therefor— “justification for admitted
conduct.” [CITATION], citing [CITATION].
{¶38} R.C. 2901.05(B)(1) provides as follows regarding self-defense:
(B)(1) A person is allowed to act in self-defense, defense of
another, or defense of that person's residence. If, at the trial of a
person who is accused of an offense that involved the person's use
of force against another, there is evidence presented that tends to
support that the accused person used the force in self-defense,
defense of another, or defense of that person's residence, the
prosecution must prove beyond a reasonable doubt that the accused
person did not use the force in self-defense, defense of another, or
defense of that person's residence, as the case may be. Licking County, Case No. 2023CA0060
{¶39} Under R.C. 2901.05(B)(1), therefore, there are two burdens. [CITATION]. The defendant
has the initial burden of production, which is the burden of producing evidence “that tends
to support” that the defendant used the force in self-defense. [CITATION]. The burden then shifts to appellee
under its burden of persuasion to prove beyond a reasonable doubt that the defendant
did not use the force in self-defense. [CITATION]. In other words, if the evidence tends to
support that the defendant acted in self-defense, then the prosecution must prove beyond
a reasonable doubt that the defendant did not act in self-defense. R.C. 2901.05(B)(1); [CITATION]. Appellee need only disprove one of the elements of self-defense beyond a
reasonable doubt at trial to sustain its burden. [CITATION].
{¶40} In the instance case, at the close of appellant's jury trial, the trial court
provided the jury with an instruction regarding self-defense, which means that the trial
court concluded that the record contained evidence that tends to support that appellant
used the force in self-defense when he shot Sam Roe. R.C. 2901.05(B)(1); [CITATION]. The guilty verdict means appellee met its burden of persuading the jury
beyond a reasonable doubt that appellant was not acting in self-defense when he shot Roe. [CITATION].
{¶41} When deadly force is used, the elements of self-defense that appellee must
now disprove at least one of are: (1) appellant was not at fault in creating the situation
giving rise to the affray, (2) appellant had reasonable grounds to believe and an honest
belief even if mistaken that he was in imminent danger of death or great bodily harm and Licking County, Case No. 2023CA0060
that he did not use more force than necessary to defend against the attack, and (3)
appellant must not have violated any duty to retreat or avoid the danger. [CITATION], ¶ 84, citing [CITATION].
{¶42} As to the third element of self-defense, “a person has no duty to retreat
before using self-defense * * * if that person is in a place in which the person lawfully has
a right to be.” R.C. 2901.09(B); [CITATION], ¶ 10. “Simply put, the new ‘stand your
ground’ law removes, in most cases, the duty to retreat before using self-defense.”
[CITATION], ¶ 85, citing [CITATION].
{¶43} The second element of self-defense “is a combined subjective and objective
test.” [CITATION]. The person's belief must be objectively reasonable under the circumstances and he must subjectively
believe he needed to resort to force to defend himself or the other person. Id. at 330–331.
{¶44} “The objective part of the test requires consideration of ‘whether,
considering all of the defendant's particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack,’ a reasonable
person would believe that danger was imminent.” [CITATION], ¶ 86,
internal citations omitted. The subjective part requires consideration of whether the
defendant himself actually believed that he was in imminent danger. Id.
{¶45} Here, the evidence does not support appellant’s contention that he
possessed the necessary objective and subjective beliefs he was in imminent or
immediate danger of death or great bodily harm. He points to the threatening texts Licking County, Case No. 2023CA0060
exchanged with Sam Roe on the day preceding the shooting. Generally, neither words
alone nor fear itself will constitute evidence of serious provocation. “[W]ords alone will not
constitute reasonably sufficient provocation to incite the use of deadly force in most
situations.” [CITATION]. Fear
alone is insufficient to demonstrate the kind of emotional state necessary to constitute
sudden passion or fit of rage. [CITATION].
{¶46} Appellant further asserts Roe “pushed him out of the way” and “slammed
into his motorcycle.” Brief, 7. A victim's simple pushing or punching does not constitute
sufficient provocation to incite the use of deadly force in most situations. See, [CITATION] (concluding that sufficient
provocation did not exist when the victim grabbed the defendant by the testicles and the
arm); [CITATION] (concluding that the
victim's conduct in approaching the defendant with a hammer and stating “come on” did
not constitute sufficient provocation); [CITATION] (“We find that a mere shove and a swing (which appellant
by his own testimony ducked) are insufficient as a matter of law to constitute serious
provocation reasonably sufficient to incite or arouse appellant into using deadly force.”).
{¶47} Implicit in the second element of self-defense is the requirement that the
degree of force used was warranted under the circumstances and proportionate to the
perceived threat. [CITATION], ¶ 88, citing [CITATION], ¶ 58. As to the degree of force that is permitted,
the defendant is privileged to use the amount of force that is reasonably necessary to
repel the attack. [CITATION].
====== End of Document ====== Licking County, Case No. 2023CA0060
{¶48} Appellant demonstrated only verbal threats made by Roe prior to
appellant’s use of deadly force. Witness 1 testified Roe was standing near appellant
smoking a cigarette, and when he turned sideways, appellant shot him. Witness 1 did
not observed any aggression from Roe toward appellant. Roe was not armed; although
he had a sheathed knife in a necklace around his neck, he never brandished it and the
knife was removed from the sheath by police.
{¶49} If appellant's fear was only of physical harm, he was allowed by law only to
use an amount of force that was warranted under the circumstances and proportionate to
the perceived threat. [CITATION], ¶ 89. Appellant's decision to shoot
Roe in the back was deadly force and was disproportionate to the threat he faced under
these circumstances. Id.
{¶50} While appellant was free to argue that he was justified in using deadly force,
and the trial court instructed the jury accordingly, the jury may have reasonably chosen
to reject his argument. Upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which appellant was convicted. We further find there is substantial evidence
proving beyond a reasonable doubt that appellant was not acting in self-defense when he
shot Roe and the degree of force used by appellant was unwarranted under the
circumstances and disproportionate to the perceived threat. Therefore, in light of the
evidence discussed above, as well as the record in its entirety, we do not find the jury
clearly lost its way in finding appellant guilty of felonious assault and that appellant was
not acting in self-defense. We do not find that the jury disregarded or overlooked
compelling evidence that weighed against conviction. Licking County, Case No. 2023CA0060
{¶51} Appellant’s second assignment of error is overruled.
III.
{¶52} In his third assignment of error, appellant argues his indefinite sentence
violates the jury trial guarantee, the doctrine of separation of powers, and due process
principles of the federal and state constitutions. We disagree.
{¶53} In his summary argument, appellant acknowledges we have repeatedly
[SEGMENT 21]
rejected his constitutional challenges to indefinite sentencing (see, e.g., [CITATION]).
Appellant further acknowledges he raised
this summary assignment of error in light of the Ohio Supreme Court’s consideration of
Hacker, supra.
{¶54} His arguments have now been weighed and rejected by the Ohio Supreme
Court. See, [CITATION].
{¶55} Appellant’s third assignment of error is therefore overruled. Licking County, Case No. 2023CA0060
CONCLUSION
{¶56} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Gwin, J. and
Wise, J., concur.
======
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230489
TRIAL NO. 23CRB-1468
Plaintiff-Appellee, :
vs. : O P I N I O N.
KAELIN HAWKINS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In response to the Ohio General Assembly shifting the burden of proof
in self-defense cases from the defendant to the prosecution, Ohio added Crim.R. 12.2,
which requires the defendant to file a written notice, prior to trial, providing their
intent to raise a self-defense argument. Here, defendant-appellant Kaelin Hawkins
claims that the trial court erred by declaring his self-defense arguments “waived”
because he failed to file the requisite notice. He also faults his defense counsel as
ineffective for failing to follow Crim.R. 12.2. But even if an error arose by virtue of the
missing notice, he still must show prejudice flowing from that flaw in the trial process.
Because the trial court allowed evidence of Mr. Hawkins’s self-defense arguments
notwithstanding the lack of notice and weighed it prior to announcing its guilty
verdict, we ultimately find no prejudice on this record. We accordingly affirm the
judgment of the trial court convicting him of misdemeanor assault.
I.
{¶2} In January 2023, Ariel Bahuguna, Jeremy Hill, and about five other
friends were drinking and dancing at The Drinkery, a bar in Cincinnati’s Over-the-
Rhine neighborhood. Eventually, they wound up in a physical tangle outside the bar
during which another patron, Mr. Hawkins, bit Ms. Bahuguna on the thigh. Although
all witnesses testified that they drank that night and some admitted to having hazy
recollections of the evening’s events, a general picture emerged at Mr. Hawkins’s trial
about how the confrontation and bite transpired.
{¶3} Shortly after arriving, Ms. Bahuguna and some other women in the
group went to the restroom. There, they encountered Molly Beddinghaus, who Ms.
Bahuguna described as “hysterical,” and asked her if she needed help. Mr. Hawkins,
OHIO FIRST DISTRICT COURT OF APPEALS
Ms. Beddinghaus’s boyfriend, waited outside the restroom, as apparently he was prone
to doing. At some point, after hearing a commotion, Mr. Hawkins peered into the
restroom to check on Ms. Beddinghaus and, seeing the group of women attempting to
console her, sought to extract her. But he claimed that the women pulled Ms.
Beddinghaus back into her restroom stall, “by the neck,” despite her crying out for
him. Soon after, the women left the restroom with Ms. Beddinghaus and told Mr. Hill
and their other friends that they needed to call her a car to get her home.
{¶4} Mr. Hill testified that, around this time, Mr. Hawkins approached his
group, acting like a “hostile individual,” and threw a drink at them. Whereupon,
security tossed Mr. Hawkins out of the front entrance of the bar, and the friend group
(with Ms. Beddinghaus) migrated outside through a back door.
{¶5} Across the street from the bar, the group waited with Ms. Beddinghaus
for her car to arrive for five to ten minutes, during which time Mr. Hill described her
as “hysterically crying” and “visually shaken, visibly upset.” Suddenly, Mr. Hawkins
rushed forward and “collided” with the group with enough force to knock Mr. Hill, Ms.
Bahuguna, and others to the ground, apparently attempting to rescue Ms.
Beddinghaus. As the altercation unfolded, Mr. Hill saw Mr. Hawkins on top of Ms.
Bahuguna with his teeth latched to her thigh, biting her through her jeans in a zombie-
like manner. He pulled Mr. Hawkins off her, and he and Mr. Hawkins fell to the
ground again as they fought. Mr. Hawkins then sank his teeth into Mr. Hill’s torso,
before Mr. Hill shoved him off. Police eventually arrived, and Mr. Hawkins was
charged with assaulting Ms. Bahuguna, in violation of R.C. 2903.13. The arresting
officer testified that Ms. Beddinghaus was “extremely distraught, crying nonstop,”
refused medical attention, and would not tell the officer anything that happened.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} At trial, Mr. Hawkins did not deny biting Ms. Bahuguna, and the state
introduced photographs of her bite injury into evidence, showing deep top- and
bottom-teeth marks, redness, and bruising on her thigh. Instead, he asserted self-
defense and defense of another, insisting that Ms. Bahuguna’s group sought to
“kidnap” Ms. Beddinghaus. His theory focused especially on the restroom incident
and his observation that the group was holding coats over Ms. Beddinghaus’s head
(perhaps to shield or hide her) outside the bar. He further testified that when he
approached the group outside, he tripped on a curb, and someone grabbed him by the
neck as he was trying to pull Ms. Beddinghaus away, precipitating the physical
entanglement and biting, which he maintains occurred in self-defense.
{¶7} Ms. Beddinghaus’s account of the evening left much to the imagination.
She testified that when she entered the restroom, a group of women came into her
stall, and she “blanked out” based on stress and fright before calling out for Mr.
Hawkins. She recalled that she “kind of blurred out again” after Mr. Hawkins was
escorted out of the bar and remembered later being outside with the group. On cross-
examination, she admitted that she did not know whether she asked the women for
help when she was “blacked out.”
{¶8} The trial court ultimately found Mr. Hawkins guilty of misdemeanor
assault, in violation of [CITATION], and sentenced him to 180 days in jail, 180
suspended, and two years of probation. It denied Mr. Hawkins’s Crim.R. 29 motion
for an acquittal after the state’s case and again after the conclusion of evidence. Prior
to the second ruling, the court noted that the record contained no notice regarding a
self-defense argument, as required by Crim.R. 12.2, determining that those arguments
were “waived.” Mr. Hawkins asked the court to consider the self-defense evidence he
OHIO FIRST DISTRICT COURT OF APPEALS
presented anyway. Prior to announcing the verdict, the court favorably described how
Mr. Hill and Ms. Bahuguna’s “story matched” and found that the defense’s kidnapping
theory “does not make logical sense.” It found persuasive the facts that security did
not try to intervene, the group patiently waited outside of the bar with Ms.
Beddinghaus, Ms. Beddinghaus did not testify about women forcing her to do
anything, and Ms. Beddinghaus lacked memories about the night. It considered the
testimony of both Mr. Hawkins and Ms. Beddinghaus and assessed their stories for
consistency and credibility prior to finding him guilty.
{¶9} Mr. Hawkins moved for a new trial, which the court denied. He now
appeals his conviction, arguing that the trial court erred in failing to consider his self-
defense arguments and that he was deprived of the effective assistance of counsel
because his trial counsel failed to file a notice of self-defense.
II.
{¶10} In March of 2019, an amended Ohio statute shifted the burden of proof
to the prosecution in use of force cases where “there is evidence presented that tends
to support that the accused person used the force in self-defense” or defense of
another. R.C. 2901.05(B)(1) (In such cases, “the prosecution must prove beyond a
reasonable doubt that the accused person did not use the force” in that defensive way.).
We have previously held that the procedural burden “ ‘of going forward with the
evidence’ ” of an affirmative defense, which is a burden of production, remains with
the accused. [CITATION]
{¶11} In this case, however, the parties do not contest whether Mr. Hawkins
met his burden of production or whether the state met its burden of proof. Instead,
OHIO FIRST DISTRICT COURT OF APPEALS
[SEGMENT 22]
their primary concern is how the trial court handled Mr. Hawkins’s admitted failure
to file the requisite notice under Crim.R. 12.2. Under that rule, a defendant must give
written notice of his intent to argue self-defense or defense of another no less than 14
days before trial in a misdemeanor case, like this one. Crim.R. 12.2. Further, “[i]f the
defendant fails to file such written notice, the court may exclude evidence offered by
the defendant related to the defense, unless the court determines that in the interest
of justice such evidence should be admitted.” Id. Thus, under Crim.R. 12.2, a trial
court has discretion whether to exclude a defendant’s evidence of self-defense after the
defendant fails to file the requisite notice, and an appellate court reviews the trial
court’s determination for an abuse of discretion. An abuse of discretion occurs when
“a court exercise[s] its judgment, in an unwarranted way, in regard to a matter over
which it has discretionary authority.” [CITATION]
{¶12} Notwithstanding the absence of notice, Mr. Hawkins asserts that the
trial court erred in failing to consider his self-defense evidence and that it should have
done so “in the interest of justice.” See Crim.R. 12.2. However, after reviewing the
record, we conclude the trial court effectively did what he now requests. Despite
deeming his self-defense arguments “waived” because of the lack of Crim.R. 12.2
notice, the trial court recited its factual conclusions at length prior to announcing the
verdict, including assessments of Mr. Hawkins’s self-defense and defense of another
arguments. It found that Ms. Beddinghaus’s story “just does not make sense” and that
the kidnapping allegation likewise “does not make logical sense,” emphasizing how
neither she nor Mr. Hawkins alleged any type of kidnapping plot on the night of the
assault. And the court recalled the officer’s testimony that despite Mr. Hawkins
OHIO FIRST DISTRICT COURT OF APPEALS
claiming to have injuries from the brawl, she observed none on him that night.
Contrasted with the trial court’s findings that the stories of the prosecution’s witnesses
“matched,” the court impliedly found the defense’s theories not to be credible. So
while the trial court may have acted inconsistently in announcing its “waiver”
determination before weighing the self-defense arguments anyway, the waiver
statement seemingly did not prevent the defense from advancing its self-defense
arguments for the trial court, and it weighed them in the end.
{¶13} Under our harmless error standard, “[a]ny error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” Crim.R. 52(A).
At a minimum, to affect the defendant’s substantial rights, the error must be
prejudicial. See [CITATION]. Because Mr. Hawkins fails to show how the trial court’s statement that his self-defense
arguments were “waived” prejudiced his defense, we conclude the trial court’s actions
were at a minimum harmless, and we overrule his first assignment of error.
{¶14} In his second assignment of error, Mr. Hawkins understandably faults
his trial counsel for failing to file the requisite notice of self-defense under Crim.R.
12.2. But his claim that this failure deprived him of the effective assistance of counsel
in violation of the U.S. Constitution and the Ohio Constitution fails by the same logic
his first assignment of error fell short: he does not show that he suffered prejudice by
the lack of notice.
{¶15} To prove ineffective assistance of counsel, a defendant must
demonstrate both that “counsel’s performance was deficient,” and that “the deficient
performance prejudiced the defense.” [CITATION]. To show prejudice, a defendant “must prove
OHIO FIRST DISTRICT COURT OF APPEALS
that there exists a reasonable probability that, were it not for counsel’s errors, the
result of the trial would have been different.” [CITATION]
{¶16} Here, the trial court admitted and weighed evidence of Mr. Hawkins’s
self-defense and defense of another arguments despite its waiver conclusion. Mr.
Hawkins presents no argument that additional evidence would have been admitted or
considered had the notice been appropriately filed (for instance, he never proffered
additional evidence). Therefore, he has not met his burden to show a reasonable
probability that the result of the trial would have differed if his trial counsel had
complied with the notice requirement of Crim.R. 12.2, and we overrule his second
assignment of error. See id. at 143; see also [CITATION]
* * *
{¶17} Because Mr. Hawkins fails to show prejudice from the trial court’s
statement that his self-defense arguments were “waived” or from his trial counsel’s
failure to file the requisite notice under Crim.R. 12.2, we overrule his two assignments
of error and affirm the judgment of the trial court convicting him of misdemeanor
assault in violation of R.C. 2903.13.
Judgment affirmed.
BOCK, P.J., and WINKLER, J., concur.
The provided document excerpt does not contain any court ruling citations to modify. Therefore, no changes are necessary. [TEXT CONTAINING COURT RULING CITATIONS IS MISSING]
[Cite as [CITATION].]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2023 CA 00024
JEREMY ALAN MORLOCK :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2022 CR 1020C
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 7, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE STONE KELLY S. MURRY
Stark County Prosecutor
Courtyard Centre
BY: CHRISTOPHER A. PIEKARSKI
Cleveland Ave., N.W.
Assistant Prosecutor Canton, OH 44702
110 Central Plaza South
Canton, OH 44702 [CITATION]
Gwin, P.J.
{¶1} Defendant-appellant Jeremy Alan Morlock [Morlock] appeals his
convictions and sentences after a jury trial in the Stark County Court of Common Pleas,
Stark County, Ohio.
Facts and Procedural History
{¶2} On July 14, 2022, the Stark County Grand Jury indicted Morlock on:
Aggravated Murder, [Joseph Pomeroy] an unclassified felony, in violation of R.C.
2903.01(A), 2929.02(A)1; Murder, [Joseph Pomeroy] an unclassified felony, in violation of
R.C. 2903.02(A)(D), 2929.02(B)2; Kidnapping [Buddy Myers], a felony of the first degree,
in violation of R.C. 2905.01(A)(2)(C)(1)3; Aggravated Robbery [Buddy Myers], a felony of
the first degree, in violation of R.C. 2911.01(A)(1)(C)4; Grand Theft of a Motor Vehicle
[Buddy Myers], a felony of the fourth degree, in violation of R.C. 2913.02(A)(1)(B)(5)5;
Kidnapping [to terrorize, or to inflict serious physical harm on the victim], [Blake Waldrup],
a felony of the first degree, in violation of R.C. 2905.01(A)(3)(C)(1)6; Kidnapping [to
engage in sexual activity], [Blake Waldrup], a felony of the first degree, in violation of R.C.
2905.01(A)(4)(C)(1)7; Felonious Assault [Blake Waldrup], a felony of the second degree,
in violation of R.C. 2903.11(A)(1)(D)(1)(a)8; Rape [Blake Waldrup], a felony of the first
Morlock was also charged with aiding and abetting Clayton Justin Smart, Mary Ann Soliday,
and/or Andrew Charles Williams in the commission of this offense.
See Note 1
Morlock was also charged with aiding and abetting Clayton Justin Smart, Mary Ann Soliday,
and/or Bonnie June Metz in the commission of this offense.
See Note 3
See Note 3
See Note 3
See Note 3
Morlock was also charged with aiding and abetting Clayton Justin Smart and Mary Ann Soliday,
in the commission of this offense. Stark County, Case No. 2023 CA 00024
degree, in violation of R.C. 2907.02(A)(2)(B)9; Gross Abuse of a Corpse, a felony of the
fifth degree, in violation of R.C. 2927.01(B)/(C)10; and Tampering with Evidence, a felony
[SEGMENT 23]
of the third degree, in violation of R.C. 2921.12(A)(1)(2)(B).11
{¶3} At trial, [CITATION], Morlock’s co-defendant, testified on behalf
of the state in exchange for a reduced sentence of 30 to 35 years for pleading to
involuntary manslaughter, three counts of kidnapping, aggravated robbery, grand theft of
a motor vehicle, felonious assault, gross abuse of a corpse, and tampering with evidence.
[CITATION], also a co-defendant, testified on behalf of the
state as part of a plea negotiation wherein he would receive a sentence of 12 to 15 years
for pleading to involuntary manslaughter, tampering with evidence, and gross abuse of a
corpse. [CITATION], a co-defendant of Morlock’s testified
on behalf of the state as part of a plea bargain wherein the state will drop the charge for
tampering with evidence and recommend one year of probation for pleading to gross
abuse of a corpse. [CITATION].
The Kidnapping and Aggravated Robbery of Buddy Myers, and the Grand Theft
of His Car
{¶4} In May, 2022, Morlock lived in a small house on Correll Avenue Northeast,
in Canton, Ohio, along with his girlfriend [CITATION], and [CITATION].
See Note 8
10 See Note 1
11 See Note 1
12 For clarity, the transcript of Morlock’s jury trial will be referred to as “__T.__” signifying the volume
and page number. ```plaintext
Stark County, Case No. 2023 CA 00024
{¶5} On May 5, 2022, Morlock and Bonnie argued over her allegations that her
ex-boyfriend and father of her children, Buddy Myers [Buddy], had raped her one time
while Morlock was away.[CITATION] Clayton testified that, in response to these allegations,
the group devised a plan to lure Buddy to the house, so they could "talk about it and then
go from there." [CITATION] Clayton claimed the phrase "go from there" meant Morlock
wanted to kill Buddy, which was the "ultimate plan[.]” [CITATION]
{¶6} Mary texted Buddy that she wanted to have sex with him and asked him to
come to the Correll house.[CITATION] Buddy came to the house and
followed Mary inside, while Morlock, Clayton, and Bonnie all lied in wait in Morlock's
bedroom.[CITATION] Buddy soon noticed some shadows
in the back hallway and tried to leave the house, only to be confronted by Clayton, who
was now standing in front of the doorway and holding a gun to Buddy's head.[CITATION] Clayton told Buddy to sit on the nearby futon and
to give him everything he had on him, so Buddy surrendered his cell phone, wallet, and
car keys.[CITATION] Morlock, Mary, and Bonnie all entered the room
while Buddy was on the futon.[CITATION] Morlock asked Buddy if he could
use his car to go to the store, though neither Buddy nor Clayton believed Buddy really
had a choice in the matter, as he was being held at gunpoint.[CITATION] Morlock took Buddy's car keys and drove his car to the Circle K.[CITATION] When Morlock returned, Clayton gave the gun to Mary and told her to shoot Buddy
if he moved.[CITATION] Clayton searched Buddy's car, found a
pair of silver handcuffs, and then used them the handcuff Buddy to a metal dog leash that
Mary had tied around the futon.[CITATION]
``` Stark County, Case No. 2023 CA 00024
{¶7} While holding the now-restrained Buddy at gunpoint, Morlock and Clayton
both interrogated him about the rape allegations for perhaps ten to fifteen minutes, though
Buddy recalled it lasting for what seemed like forever. [CITATION] at 257, 267. They kept
repeating the same questions, and Buddy feared for his life and just wanted to leave. [CITATION]
at 257, 260.
{¶8} Clayton and Mary took Buddy's cell phone, wallet, and car keys, and drove
his car to a local restaurant, where they stole the stereo system out of it and abandoned
the vehicle. [CITATION] at 260; [CITATION] at 75. Clayton later sold the stereo system. [CITATION] at 76. He
testified that once he and Mary left with the car, Morlock was supposed to kill Buddy. [CITATION]
at 118.
{¶9} After Clayton and Mary left, Buddy asked Morlock if he could leave. [CITATION] at
261. Morlock said he could not hold Buddy against his will. [CITATION] at 261, 267. Buddy then
broke the chain on his own, escaped, and ran to his grandma's house to call the police
and then took police back to where he was held. [CITATION] at 261-262.
{¶10} At approximately 1:48 A.M. on May 5, 2022, Canton Police Officers were
dispatched to a residence located on Alexander Place Northeast in Canton, Ohio in
response to a report called in by OnStar Navigation Services for a stolen vehicle, and an
individual being handcuffed and held against his will. [CITATION] at 236-237. As Officer Brandon
Shackle and his partner Officer David Grant arrived at the residence, they located the
victim, Buddy Myers, exiting the home. [CITATION] at 237. Officer Shackle noted that Buddy had
a silver handcuff on his left wrist. Id. Buddy told the officers that Morlock, Clayton, Mary,
and Bonnie were all responsible for the incident. [CITATION] at 242-243. Following Buddy’s
directions, Officer Shackle and Officer Grant drove to the residence located at 616 Correll Stark County, Case No. 2023 CA 00024
Avenue Northeast, Canton, Ohio. [CITATION]. Officer Shackle testified that no one
answered the door when he knocked, no lights were on in the residence, no movement
was heard inside, and Buddy’s vehicle was not parked anywhere in the immediate area
of the residence. [CITATION].
The murder of Joseph Pomeroy
{¶11} Pomeroy moved in to live with the others at the Correll house on the 6th or
7th of May, 2022. [CITATION]. According to Clayton, problems soon occurred as "things
came up missing." [CITATION]. Clayton's drugs and money, Morlock's tablet, Andrew’s cell
phone, and some other items all disappeared from the house, and they believed Pomeroy
stole them. [CITATION]. Clayton and Morlock were both angry and upset that
their property was missing. [CITATION].
{¶12} Clayton testified that on May 8, 2022, he, Morlock, Mary, and Andrew all
went to an abandoned house where they believed they would find Pomeroy. [CITATION].
The group then dragged Pomeroy into the basement of a nearby apartment,
inhabited by a man named Rob. [CITATION]. Andrew testified
that he did not join the group until they had Pomeroy in the basement of the apartment
located at Ninth and McKinley in Canton, Ohio. [CITATION]. Clayton testified that
everybody agreed to kill Pomeroy. [CITATION].
{¶13} Clayton testified they all started beating up Pomeroy with their fists at first,
but then Morlock hit Pomeroy with a brick. [CITATION]. Clayton and Mary also hit
Pomeroy with a brick. Id. Mary also kicked Pomeroy and struck him with a machete on
his fingers and back. [CITATION]. Clayton testified that Pomeroy died in that basement,
and that he was dead before Morlock left. [CITATION].
====== End of Document ====== Stark County, Case No. 2023 CA 00024
{¶14} Andrew testified that Clayton called him that day because he had an
emergency and needed Andrew to come to the apartment at Ninth Street and McKinley.
[CITATION] at 159-161, 176. Andrew went into the basement, where he saw Morlock, Clayton,
Mary, and Rob, as well as Pomeroy on a tarp on the floor. [CITATION] at 161-163, 166, 176.
Pomeroy was bleeding from his head and had obviously been beaten up, but was sitting
up and was still moving. [CITATION] at 163, 165-166, 176. Andrew then joined Morlock, Clayton,
Mary, and an individual named “Rob” in continuing to assault Pomeroy. [CITATION] at 163-164,
166, 177. Andrew recalled specifically seeing Morlock striking Pomeroy. [CITATION] at 174-175,
181. He also saw Mary holding a machete, but was unsure if she ever used it in his
presence, though he later observed a laceration on Pomeroy’s back. [CITATION] at 164, 177.
[SEGMENT 24]
{¶15} At one point, Andrew struck Pomeroy in the ribs and then went upstairs to
smoke methamphetamine with a few others who were already up there. [CITATION] at 164-166.
Morlock remained in the basement when Andrew went upstairs, but he too went upstairs
and left at some point. [CITATION] at 165-166, 177, 180. Shortly after Morlock left, Rob came
upstairs to smoke methamphetamine with Andrew. [CITATION] at 166. Andrew testified that
Morlock came upstairs when Andrew was upstairs smoking meth. [CITATION] at 177. When
Andrew returned to the basement, Pomeroy was no longer moving and did not appear to
be breathing, so Andrew believed he was either unconscious or likely already dead. [CITATION]
at 166.
{¶16} Clayton, Andrew, and Mary all wrapped up Pomeroy's body in a blanket and
tarp, and secured it with a chain, an HDMI cord, a USB cord, some rope, bungee cords,
and duct tape. [CITATION] at 314-315, 318-320; [CITATION] at 166-167, 171, 178; [CITATION] at 85-86, 88-89,
110. They cleaned all the blood in the basement with a mop, bleach, dish soap, and water. Stark County, Case No. 2023 CA 00024
[CITATION]. They put the cleaning materials into a black trash bag,
along with the brick, broken pieces from the brick, some gloves, and Clayton's blood-
covered shoes. [CITATION].
{¶17} After wrapping the body and cleaning the basement, Andrew called Jordan
for a ride. [CITATION]. Jordan testified that he received a
"weird" phone call from Andrew asking for a ride, in which Andrew said, "Once was
beating, now is not; I need a ride." [CITATION]. Because he considered Andrew to be
"family," Jordan agreed to meet Andrew at his "uncle's house" at Ninth and McKinley. [CITATION].
{¶18} Jordan arrived in his white Chevy HHR, and parked on the side of the
building. [CITATION]. Clayton, Andrew, and Mary all brought Pomeroy’s
body up the stairs and outside. [CITATION]. Clayton approached Jordan
and said, "No matter what happens don't get out of the car or I'll kill your wife and your
daughter." [CITATION]. Clayton then told Andrew that if he had any doubts about
Jordan's ability to help get rid of the body he would just "end him" right there. [CITATION].
Clayton said, "If you don't think he can do it, I'll just do it myself." [CITATION]. Andrew
replied, “No, don’t do that. I'll be here with him." [CITATION]. Clayton and Andrew placed
Pomeroy's body in the back seat, along with the black trash bag. [CITATION]. Morlock returned to the scene around this time. [CITATION].
{¶19} Andrew got into the HHR and told Jordan to drive to his grandma's pig farm
in Louisville, Ohio. [CITATION]. Jordan refused, however, and they instead first drove to
Andrew's cousin's house at 17th and St. Elmo, where they stayed for about ten minutes.
[CITATION]. They then drove to a sand and gravel pit to dispose of the body, Stark County, Case No. 2023 CA 00024
but too many people were there, so Andrew told Jordan to keep driving. [CITATION]
While traveling just past the intersection of 12th and Hardington, Andrew told
Jordan to stop the vehicle. [CITATION] Andrew jumped out of the vehicle,
removed Pomeroy's body from the car, and dumped it off the side of the road. [CITATION]
They drove away, and Andrew later discarded the trash bag. [CITATION]
{¶20} On the evening of May 10, 2022, Deputy D'Metre House of the Stark County
Sheriff's Office was dispatched to Hardington Avenue after two citizens reported finding
a body wrapped up in a ditch on the side of the road. [CITATION]
Detective Derek Little of the Stark County Sheriff’s Office also responded to the scene. [CITATION]
At some point, Detective Little recognized Pomeroy and positively identified his body. [CITATION]
The Kidnapping, Felonious Assault, and Rape of Blake Waldrup
{¶21} Mary's ex-boyfriend Blake Waldrup [Blake] used to live with her and several
others in an apartment on Ninth Street. [CITATION]
Clayton moved in with them at some point and he began "seeing" Mary. [CITATION]
Mary told Clayton that Blake used to beat her and was very abusive, which upset Clayton. [CITATION]
Blake and Clayton got into an argument and fist fight one day and, after Blake
threw Clayton onto the ground and "embarrassed" him, Clayton retreated to the kitchen
to retrieve a knife. [CITATION]
Blake ran out the door and left his belongings behind, effectively moving out of the apartment for good. [CITATION]
{¶22} According to Clayton, he devised a plan sometime later with both Mary and
Morlock to lure Blake to the Correll house. [CITATION]
Mary's birthday is May 10th, and Stark County, Case No. 2023 CA 00024
Clayton testified that Mary wanted to get Blake over to the Correll house as a "birthday
present." [CITATION] On the evening of May 9th, Mary told Blake that she
wanted to be with him and asked him to come to the Correll house; Mary and a mutual
friend named Noah (aka "Country") met up with Blake in a park prior to heading to the
house. [CITATION] When Blake eventually arrived and
entered the house, Clayton held him at gunpoint. [CITATION] Clayton pistol-whipped Blake
repeatedly, and then Clayton, Mary, and a man named Kris all took Blake down into the
basement and continued beating him; Morlock soon joined them and participated in the
beatings. [CITATION] Waldrup testified the individuals in
the house were Mary, Clayton, and Morlock. [CITATION]
{¶23} Blake testified he was then taken to the basement of the house where he
was beaten with a tire iron, machete and a ratchet with a socket attached. [CITATION] Blake further testified that while he was in the basement his hands were
tied behind his back, then he was tied to the ceiling and beaten with a tire iron. [CITATION] Blake testified that while he was in the basement he saw Morlock only twice and that
Morlock put a sex toy in Blake’s rectum. [CITATION] Morlock also shot Blake
with some type of gel blaster BB gun. [CITATION]
{¶24} Blake testified that Mary and Clayton had sex in front of him and that Clayton
would use a big torch to burn Blake so he could stop his wounds from bleeding. [CITATION] Waldrup also stated that Clayton tried to cut his right ear off with the machete.
[CITATION]
{¶25} At one point, Blake managed to untie himself, which angered both Clayton
and Morlock, so they "beat [him] to hell" and tied him up again. [CITATION] Stark County, Case No. 2023 CA 00024
98. This time, they tied his arms behind his back, tied his feet together, and hung him in
the air from the rafters, face down. [CITATION] Mary wrote a note on a sheet of
paper and taped it up in the basement room where Blake was being held captive. [CITATION]
The note read: "What did Mary ever do to deserve everything you did to her?" [CITATION]; State’s Exhibit 18.
{¶26} Blake spent two to three months in the hospital afterward and endured many
surgeries. [CITATION] He was not able to speak or walk, so he required rehab, physical
therapy, and verbal therapy. [CITATION] At the time of trial, Blake still had scars on his
ankles and could not feel his feet. [CITATION] Blake admitted that he was "in and
out" of consciousness throughout the ordeal due to his injuries, but he specifically recalled
seeing Morlock at least "twice" or "a few times"; he remembered Morlock beating and
hurting him more than once, hitting him with the dildo, inserting the dildo into his rectum,
and helping to tie him up and hang him from the rafters. [CITATION]
{¶27} During Detective Little's interview of Morlock on May 13, 2023, Morlock
stated he doesn't go in the basement and didn't know anything about anyone being in the
basement because he's not home much. [CITATION]
The police investigations
{¶28} Dr. Alison Krywanczyk, the Deputy Medical Examiner at the Cuyahoga
County Medical Examiner's Office, performed the autopsy on Pomeroy’s body and
testified as an expert at trial. [CITATION] Dr. Krywanczyk testified that the cause
[SEGMENT 25]
of Pomeroy’s death was blunt and sharp force injuries. [CITATION] Based on the autopsy
report, the Stark County Coroner determined Pomeroy's death to be a homicide. [CITATION] Stark County, Case No. 2023 CA 00024
{¶29} While investigating Pomeroy's death, Detective Little spoke to Pomeroy's
probation officer and learned about a recent phone call from Buddy, who said he had
been robbed by Morlock, Clayton, and Mary, and that they stole his car. [CITATION] at 325-326,
347-348. Pomeroy's ex-girlfriend [Chastity] permitted the police to search through her cell
phone because Pomeroy often used it to communicate with people. [CITATION] at 326-327. The
police found a text message on her phone referencing a huge fight amongst several
people, in which Morlock was mentioned by name. [CITATION] at 327. Detective Little also read
a Canton police report and learned that Morlock lived at the Correll house with his
girlfriend, Bonnie, who was currently in jail. [CITATION] at 327-328. The police then listened to jail
calls between Morlock and Bonnie. [CITATION] at 328-332. In one call, they learned that Morlock
kicked Pomeroy out of the Correll house on either May 7th or 8th. [CITATION]; State’s
Exhibit 45. In another call, Morlock said that he kicked Pomeroy out because he stole
from them, and that Pomeroy "got beat up real good" and "got fucked up pretty good."
[CITATION] at 330-331.
{¶30} Taylor Loy works for the Adult Parole Authority and was Morlock's parole
officer at the time. [CITATION] at 58-60. She received a phone call regarding an alleged
kidnapping and robbery of Buddy that occurred at Morlock's house on Correll, which she
confirmed with the police report. [CITATION] at 61. In response, she coordinated a May 13th home
visit and search of the Correll house with multiple agencies. [CITATION] at 60. Lucas Shanklin of
the Jackson Police Department and Stark County Sheriff’s Office was one of the officers
assisting Loy that day. [CITATION] at 30-31. He testified that, due to the robbery complaint against
Morlock, there was a concern that firearms were in the house. [CITATION] at 31-32. Officer John Stark County, Case No. 2023 CA 00024
Korchnak of the Canton Police Department also assisted that day and initially helped to
set up a perimeter around the house. [CITATION].
{¶31} The police and parole officers first made contact only with Mary at the
Correll house. [CITATION]. Mary came outside and said Morlock was not there, but also
said they were welcome to come inside and look for him. [CITATION]. Mary talked in
circles, did not make much sense, and repeatedly denied that anyone else was in the
house; but she ultimately admitted that her boyfriend, Clayton, was upstairs. [CITATION]. Clayton was soon found hiding in an upstairs closet with a loaded gun, but officers
were able to drag him out of the closet by his feet and arrest him. [CITATION].
{¶32} While conducting a protective sweep of the house for anyone else who
might be hiding, Officer Korchnak asked Loy if the basement had been cleared yet, and
she said no. [CITATION]. The officers observed that the door to the basement had a silver,
metal slide lock on it. [CITATION]. They unlocked the door and proceeded
down into the dark, "deplorable" basement, which had no windows and very dim lighting.
[CITATION]. Loy was wearing her body cam at the time, and the body cam
footage was entered into evidence. [CITATION]; State’s Exhibit 32. The officers soon
came across a wooden door in the basement that was not on any hinges, but was simply
propped up or jammed in front of an opening into a small, cellar room. [CITATION]. Inside that room, Officer Korchnak was the first to observe what he thought was
a deceased male lying on the floor, covered by a blanket, and not moving; he promptly
notified the others. [CITATION]. Just then, Blake, the body lying on the floor,
gasped for air and woke up, though he could not speak clearly or coherently. [CITATION],
====== End of Part of a Court Ruling ====== Stark County, Case No. 2023 CA 00024
68-69. As they tried standing Blake upright, he jerked back with his left hand and removed
a dildo from his rectum. [CITATION] at 55-56, 69. Blake was ushered outside and, although the
officers struggled to understand him, Officer Korchnak recalled hearing Blake mumbling
the phrase, "They wouldn't let me go." [CITATION] at 56, 71. They eventually identified Blake
and transported him to the hospital. [CITATION] at 57, 69. They informed the officers investigating
Pomeroy's death that another victim with similar injuries had been found. [CITATION] at 332.
{¶33} The officers sought and obtained a search warrant for the house. [CITATION] at 333,
347; [CITATION] at 57. While awaiting the warrant, Mary informed the police that Morlock could
be found near Ninth and McKinley. [CITATION] at 42, 72. Officers went to that area and, after a
brief foot pursuit, they cornered Morlock in an apartment building and he surrendered. [CITATION]
at 43, 72-74, 77-81.
{¶34} Detective Little and Detective Mark Diels of the Canton Police Department
interviewed Morlock on May 13th and May 16th. [CITATION] at 334-337; [CITATION] at 89-90. Detective
Little testified that Morlock told him that the last time he had seen Pomeroy was
approximately two months prior. [CITATION] at 335.
{¶35} Detective Little testified that he again spoke to Morlock on May 16, 2023.
Morlock told the detective that Pomeroy had been staying at his house for five days but
that he had to kick him out because Pomeroy stole from him. [CITATION] at 336-337.
{¶36} Detective Little testified Morlock then said he last saw Pomeroy in the
basement at a house on Ninth and McKinley. [CITATION] at 337. Detective Little also testified that
Morlock told him Mary, Clayton, and Andrew were also present in the basement with
Pomeroy and that they were beating Pomeroy up pretty good, hitting him, and kicking him
all over his body. [CITATION] at 337-338. Stark County, Case No. 2023 CA 00024
{¶37} Detective Little testified a search warrant was obtained for the home on
Ninth and McKinley and that during the search a box of gloves and a partially used roll of
duct tape were found on a coffee table in the basement. [CITATION]. Upon cross
examination, Detective Little testified that Morlock denied having anything to do with
Pomeroy. [CITATION].
{¶38} Andrew's name came up during the interviews, and the police learned that
a vehicle was involved. [CITATION]. During an interview with Andrew, he told police exactly
where they could find the Chevy HHR that was involved. [CITATION]. Police searched
the HHR on May 25th and found some cords on the back floorboard that matched the
cords found wrapped around the tarp and Pomeroy's body. [CITATION].
{¶39} On January 1, 2023, Detective Diels received information that more
evidence was possibly still inside the Correll house. [CITATION]. Detective Diels learned
that the machete and hatchet were possibly concealed inside of a basement wall, so he
returned to the house and retrieved the evidence. [CITATION].
The jury’s decision
{¶40} The jury ultimately found Morlock guilty of murder (count 2), kidnapping
(count 3), aggravated robbery (count 4), grand theft of a motor vehicle (count 5),
kidnapping [to terrorize, or to inflict serious physical harm on the victim] [Blake Waldrup],
(count 6), felonious assault (count 8), and rape (count 9). They found him not guilty of
aggravated murder (count 1), kidnapping [to engage in sexual activity] [Blake Waldrup]
(count 7), gross abuse of a corpse (count 10), and tampering with evidence (count 11). Stark County, Case No. 2023 CA 00024
Morlock’s Sentence
{¶41} On January 24, 2023, the trial judge sentenced Morlock to an aggregate
prison term of forty-three years to life, and ordered him to pay $5,417.00 in restitution. On
[SEGMENT 26]
April 6, 2023, the court re-sentenced Morlock to the same sentence, but also classified
him as a Tier III sex offender and properly notified him of his registration requirements.
Assignments of Error
{¶42} Morlock raises four Assignments of Error,
{¶43} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN CONVICTIONS AGAINST APPELLANT THEREFORE THE CONVICTIONS
MUST BE REVERSED.
{¶44} “II. THE APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.
{¶45} “III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION
10 OF THE OHIO CONSTITUTION.
{¶46} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED
$5,417 IN RESTITUTION TO BUDDY MYERS WITHOUT HOLDING A RESTITUTION
HEARING TO PROVIDE PROOF OF ECONOMIC LOSS BY A PREPONDERANCE OF
THE EVIDENCE AS REQUIRED BY STATUTE.”
I.
{¶47} In his First Assignment of Error, Morlock argues that his convictions for
murder [CITATION] (count 2), kidnapping [CITATION] (count 3), aggravated robbery Stark County, Case No. 2023 CA 00024
[Buddy Myers] (count 4), and grand theft [Buddy Myers] (count 5) are not supported by
sufficient evidence.
Standard of Appellate Review
{¶48} The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. [CITATION]. The test for the sufficiency of the evidence
involves a question of law for resolution by the appellate court. [CITATION], ¶13. “This naturally entails a review of the elements of the charged offense
and a review of the state's evidence.” [CITATION], ¶13.
{¶49} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. [CITATION], paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in [CITATION], ¶30. “The relevant inquiry is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.” [CITATION] at paragraph two of the syllabus. [CITATION], ¶19. Thus, “on review for evidentiary sufficiency we do not Stark County, Case No. 2023 CA 00024
second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,
[the evidence] would convince the average mind of the defendant's guilt beyond a
reasonable doubt.’” [CITATION], quoting Jenks at paragraph two of the syllabus; [CITATION]. We will
not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could
not reach the conclusion reached by the trier-of-fact.’” [CITATION], quoting [CITATION].
Issue for Appellate Review: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
that Morlock was guilty beyond a reasonable doubt of the murder of Pomeroy
{¶50} Morlock was convicted of murder in violation of R.C. 2903.02(A), which
states, “No person shall purposely cause the death of another or the unlawful termination
of another's pregnancy.” The cause of Pomeroy’s death was blunt and sharp force
injuries. 2T. at 147. Based on the autopsy report, the medical examiner concluded
Pomeroy's death was a homicide. 2T. at 130-131, 148.
{¶51} R.C. 2901.22 Culpable mental states, provides:
(A). A person acts purposely when it is his specific intention to cause
a certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is his specific intention to engage in conduct of that
nature. Stark County, Case No. 2023 CA 00024
{¶52} Morlock was also charged with aiding and abetting Clayton Justin Smart,
Mary Ann Soliday, and/or Andrew Charles Williams in the commission of this offense.
R.C. 2923.03(A)(2) Complicity provides, in relevant part,
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense;
{¶53} Anyone complicit in the commission of an offense by aiding and abetting
the principal offender "shall be prosecuted and punished as if he were a principal
offender." R.C. 2923.03(A)(2)/(F). The instructions given the jury in the case at bar
properly permitted the jury to find Morlock guilty of murder based on a finding that he
aided and abetted his codefendants in the commission of murder, and therefore was
complicit in the commission of the murder.
{¶54} It is true that a person’s mere association with a principle offender is not
enough to sustain a conviction based on aiding and abetting. [CITATION]. With respect to the requirements for
a conviction for aiding and abetting, the Supreme Court of Ohio has stated,
To support a conviction for complicity by aiding and abetting pursuant
to R.C. 2923.03(A)(2), the evidence must show that the defendant
supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the defendant shared the Stark County, Case No. 2023 CA 00024
criminal intent of the principal. Such intent may be inferred from the
circumstances surrounding the crime.
[CITATION]
{¶55} Aiding and abetting may be shown by both direct and circumstantial
evidence and participation may be inferred from presence, companionship, and conduct
before and after the offense is committed. Paskins, ¶27, citing [CITATION], citing [CITATION]; See also, [CITATION], quoting [CITATION].
{¶56} Aiding and abetting may also be established by overt acts of assistance
such as driving a getaway car or serving as a lookout. Paskins, ¶28, citing [CITATION]. See also, [CITATION].
{¶57} “The court must view the evidence in the light most favorable to the
prosecution and defer to the trier of fact on questions of credibility and the weight assigned
to the evidence. [CITATION].
{¶58} Morlock’s sole argument on appeal centers upon his contention that the
state failed to present sufficient evidence that he purposely caused the death of Pomeroy. Stark County, Case No. 2023 CA 00024
[Appellant’s brief at 16]. He further argues that "no testimony" was presented to establish
that he acted with purpose to kill Pomeroy. [Id.]
{¶59} Contrary to Morlock’s arguments, sufficient evidence was presented to
prove beyond a reasonable doubt that Morlock aided and abetted his co-defendants in
the murder of Pomeroy.
{¶60} Evidence was presented that Morlock, Clayton and Andrew were angry at
Pomeroy because they believed he had stolen property belonging to them while living at
the Correll house. Evidence was presented that Clayton, Morlock, Mary, and Andrew all
went to an abandoned house where they believed they would find Pomeroy. [CITATION] The group then dragged Pomeroy into the basement of a nearby apartment,
inhabited by a man named Rob. [CITATION] Clayton testified
that everybody agreed to kill Pomeroy. [CITATION]
{¶61} Clayton testified they all started beating up Pomeroy with their fists at first,
but then Morlock hit Pomeroy with a brick. [CITATION] Clayton and Mary also hit
Pomeroy with a brick. Id. Mary also kicked Pomeroy and struck him with a machete on
his fingers and back. [CITATION] Clayton testified that Pomeroy died in that basement,
and that he was dead before Morlock left. [CITATION]
{¶62} Even if Morlock had left the basement before Pomeroy was dead, the
evidence establishes that he was present and participated in the beating of Pomeroy with
the others. Morlock not only witnessed the others throwing bricks at Pomeroy, he himself
hurled them at Pomeroy.
{¶63} The trier of fact may infer an intention to kill from the surrounding
circumstances where the natural and probable consequence of a defendant’s actions is Stark County, Case No. 2023 CA 00024
[SEGMENT 27]
to produce death. [CITATION] paragraph
five of the syllabus. The testimony of the medical examiner established that Pomeroy had
several skull fractures. Thus, the natural and probable consequences of three people
hurling bricks at a defenseless person’s head is to produce death. It matters not whether
Morlock was actually in the room when Pomeroy died as the result of the severe beatings
inflicted by each one of the participants. Morlock was not an innocent bystander who
merely happened along; he was a willing participant.
Where only such unlawful act was contemplated in the original
conspiracy, although not identical with or similar to the criminal act charged,
if the conspired unlawful act and the manner of its performance would be
reasonably likely to produce death, each conspirator is equally guilty with
the principal offender, as an aider and abettor in the homicide, although
such aider and abettor was neither present nor had knowledge of the
physical killing or of the weapon used.
[CITATION] syllabus at para. 2. See also, [CITATION],
{¶64} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Morlock did at the very least aid and abet another in the commission of murder. We hold,
therefore, there was sufficient evidence to support Morlock’s conviction for the offense of
Murder. Stark County, Case No. 2023 CA 00024
Issue for Appellate Review: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
that Morlock was guilty beyond a reasonable doubt of the kidnapping, aggravated
robbery, and grand theft with respect to Buddy Myers.
{¶65} Morlock next contends that the state did not present sufficient evidence to
prove beyond a reasonable doubt that Morlock aided or abetted in the commission of
Kidnapping, Aggravated Robbery, or Grand Theft with respect to Buddy Myers.
{¶66} Morlock was charged with kidnaping in violation of R.C. 2905.01(A)(2),
(A) No person, by force, threat, or deception, ... by any means, shall
remove another from the place where the other person is found or restrain
the liberty of the other person, for any of the following purposes:
***
(2) To facilitate the commission of any felony or flight thereafter;
{¶67} Morlock was further convicted of aggravated robbery in violation of R.C.
2911.01(A)(1) provides,
(A) No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under
the offender’s control and either display the weapon, brandish it, indicate
that the offender possesses it, or use it;
{¶68} Finally, with respect to Buddy, Morland was convicted of Grand theft of a
Motor Vehicle in violation of R.C. 2913.02(A)(1) provides, Stark County, Case No. 2023 CA 00024
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the property or
services in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
{¶69} Morlock was also charged with aiding and abetting Clayton, Mary, and/or
Bonnie June Metz in the commission of these offenses.
{¶70} Evidence was presented that Morlock and Bonnie argued over her
allegations that her ex-boyfriend and father of her children, Buddy had raped her one time
while Morlock was away. 3T. at 68. Morlock, Clayton, Mary and Bonnie devised a plan to
deceive Buddy into believing Mary wanted to have sex with him in order to lure Buddy to
the home to exact revenge. Buddy fell for the deception, came to the house and followed
Mary inside, while Morlock, Clayton, and Bonnie all lied in wait in Morlock's bedroom.
{¶71} Clayton held a gun to Buddy’s head and told him to give him everything he
had on him. Buddy surrendered his cell phone, wallet, and car keys. Mary and Morlock
were present when these events transpired. While holding Buddy at gunpoint, Morlock
and Clayton both interrogated him about the rape allegations for perhaps ten to fifteen
minutes. Evidence was presented that Buddy feared for his life and just wanted to leave.
{¶72} Clayton and Mary took Buddy's cell phone, wallet, and car keys, and drove
his car to a local restaurant, where they stole the stereo system out of it and abandoned
the vehicle. 1T. at 260; 3T. at 75. Clayton later sold the stereo system. 3T. at 76. Buddy’s
car was never returned to him. Stark County, Case No. 2023 CA 00024
{¶73} The evidence presented was that Morlock willingly participated in the
deception, detention and theft. Morlock was aware that Clayton had a gun that he used
to threaten Buddy into compliance. Morlock concedes that his codefendants restrained
B u d d y’ s liberty and forcibly took his vehicle. Contrary to Morlock’s assertions evidence
was presented that he was in a bedroom with his codefendants in a plan to confront Buddy
about the rape allegations, he questioned Buddy while Buddy was handcuffed to the futon
and was being threatened with a gun. The entire reason Buddy was lured to the residence
was Morlock was angry because Bonnie told him Buddy had raped her one time while
Morlock was away.
{¶74} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Morlock did at the very least aid and abet another in the commission of kidnapping,
aggravated robbery and grand theft of a motor vehicle. We hold, therefore, there was
sufficient evidence to support Morlock’s conviction for the offenses of kidnapping,
aggravated robbery and grand theft of a motor vehicle.
{¶75} For the forgoing reasons, Morlock’s First Assignment of Error is overruled.
II.
{¶76} In his Second Assignment of Error, Morlock argues his convictions are
against the manifest weight of the evidence. Stark County, Case No. 2023 CA 00024
Standard of Appellate Review – Manifest Weight
{¶77} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. [CITATION], superseded by constitutional amendment on other grounds as
stated by [CITATION].
{¶78} Weight of the evidence addresses the evidence's effect of inducing belief.
[CITATION]. When a court of
appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with
the fact finder’s resolution of the conflicting testimony. [CITATION], citing [CITATION] (quotation marks omitted); [CITATION], citing [CITATION].
{¶79} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” [CITATION],
quoting [CITATION]. The Ohio Supreme Court has emphasized: “‘[I]n determining whether the judgment
below is manifestly against the weight of the evidence, every reasonable intendment and Stark County, Case No. 2023 CA 00024
every reasonable presumption must be made in favor of the judgment and the finding of
facts. * * *.’” [CITATION], quoting [CITATION], fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at
191–192 (1978).
{¶80} As one Court has explained,
When faced with a manifest weight of the evidence challenge, we
must consider whether the state “carried its burden of persuasion” before
the trial court. [CITATION]; see [CITATION]. Unlike the
burden of production, which concerns a party’s duty to introduce enough
evidence on an issue, the burden of persuasion represents a party’s duty to
convince the factfinder to view the facts in his or her favor. [CITATION]. Therefore, in order for us to conclude that the factfinder’s adjudication
of conflicting evidence ran counter to the manifest weight of the evidence—
which we reserve for only the most exceptional circumstances—we must
find that the factfinder disregarded or overlooked compelling evidence that
weighed against conviction. [CITATION]. We accordingly sit as a “thirteenth juror” in this
respect. Id.
[CITATION]
{¶81} Further, to reverse a jury verdict as being against the manifest weight of the
evidence, a unanimous concurrence of all three judges on the court of appeals panel Stark County, Case No. 2023 CA 00024
[SEGMENT 28]
reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio
Constitution. [CITATION], ¶ 2-4,
citing Thompkins at paragraph four of the syllabus.
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the convictions must be reversed and a new
trial ordered
{¶82} Morlock makes two arguments in support of his contention that the jury
clearly lost their way and created a manifest miscarriage of justice by convicting him. First,
Morlock contends that the testimony was contradictory between Clayton and Andrew.
Specifically, Morlock challenges the testimony that Pomeroy was dead before Morlock
left the basement.
{¶83} As we noted in our disposition of Morlock’s First Assignment of Error,
because he was also charged with aiding and abetting, it does not matter whether he was
present at the time Pomeroy expired. Testimony was presented, and not refuted, that
Morlock joined in when the codefendants were hurling bricks at the helpless victim. He
was aware of the actions of his codefendants and noted his acceptance of their actions
by joining in with their beating of Pomeroy. It matters not which one threw the brick that
fractured Pomeroy’s skull; rather, each individual is responsible for the death.
{¶84} Further, the jury was instructed,
You are not required to believe the testimony of any witness simply
because the witness was under oath. You may believe or disbelieve all or
any part of the testimony of any witness. It is your duty to decide what Stark County, Case No. 2023 CA 00024
testimony to believe and what testimony not to believe. The testimony of
one witness believed by you is sufficient to prove any disputed fact.
3T. at 160.
{¶85} Morlock next challenges the fact that the police did not investigate other
individuals.
{¶86} “Nothing in the record indicates what kind of testimony [the witnesses] could
have provided. Establishing that would require proof outside the record, such as affidavits
demonstrating the probable testimony. Such a claim is not appropriately considered on a
direct appeal.” [CITATION] (rejecting claim of ineffectiveness for counsel’s failure to utilize an expert on eyewitness
identification); [CITATION] (rejecting claim of ineffectiveness for counsel’s failure to pursue MRI testing in the penalty
phase). There is nothing in the record from which we can determine whether such
evidence would have been favorable to Morlock and caused the outcome of the trial to
be different. [CITATION]
{¶87} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” [CITATION], superseded by constitutional amendment on other grounds as stated
by [CITATION], quoting [CITATION]. Based upon the entire record in this matter we find
Morlock's convictions are not against the manifest weight of the evidence. To the contrary, Stark County, Case No. 2023 CA 00024
the jury appears to have fairly and impartially decided the matters before them. The jury
heard the witnesses, evaluated the evidence, and was convinced of Morlock's guilt.
{¶88} Upon review of the entire record, weighing the evidence and all reasonable
inferences as a thirteenth juror, including considering the credibility of witnesses, we
cannot reach the conclusion that the trier of facts lost its way and created a manifest
miscarriage of justice. We do not find the jury erred when it found Morlock guilty. The fact
that the jury chose to believe the testimony of the state’s witnesses, some of which was
contradictory, does not, in and of itself, render his convictions against the manifest weight
of the evidence. The state presented testimony and evidence from which the jury found
all the essential elements of the offenses proven beyond a reasonable doubt.
{¶89} Upon careful consideration of the record in its entirety, we do not find that
the jury disregarded or overlooked compelling evidence that weighed against conviction.
{¶90} Morlock’s Second Assignment of Error is overruled.
III.
{¶91} In his Third Assignment of Error, Morlock argues he was denied effective
assistance of counsel because counsel failed to adequately cross-examine the state’s
witnesses.
Standard of Appellate Review
{¶92} To obtain a reversal of a conviction on the basis of ineffective assistance of
counsel, the defendant must prove (1) that counsel's performance fell below an objective
standard of reasonableness, and (2) that counsel's deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.
[CITATION] Stark County, Case No. 2023 CA 00024
693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a
court's need to consider the other. [CITATION]
Issue for Appellate Review: Whether there is a reasonable probability that, but
for counsel's failure to highlight inconsistencies in the testimony of the state’s witnesses
through cross-examination, the result of the proceeding would have been different.
{¶93} The scope of cross-examination falls within the ambit of trial strategy, and
debatable trial tactics do not establish ineffective assistance of counsel. [CITATION]. In addition, to fairly assess counsel’s
performance, “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” [CITATION].
{¶94} However, even assuming arguendo counsel’s failure to cross-examine the
witnesses concerning inconsistencies reflected deficient performance, Morlock cannot
establish prejudice under [CITATION]. We note that in his brief, Morlock cites
inconsistencies in the testimony of various state witnesses. Thus, the jury was aware that
some of the facts were inconsistent between the state’s witnesses. Counsel did highlight
in his cross-examination of Jordan that Clayton and Andrew were “the only two people in
the car…” 2T. at 118. Counsel may have made a strategic decision to not ask about
Morlock choosing to rely instead on the fact that Jordan did not mention Morlock during
his direct testimony. Stark County, Case No. 2023 CA 00024
{¶95} In addition, the jury was instructed,
A discrepancy in a witness’ testimony or between his or her
testimony and that of another, if there are any, does not necessarily mean
that you should disbelieve the witness, as people commonly forget facts or
recollect them erroneously after the passage of time. You are all certainly
aware of the fact that two persons who are witness to an incident may often
see or hear it differently. In considering… a discrepancy in a witness’
testimony you should consider whether such testimony concerns an
important fact or a trivial one.
3T. at 161. The jury was further instructed that Clayton, Andrew and Jordan’s testimony
“should be viewed with grave suspicion and weighed with great caution…” because they
were said to be accomplices. 3T. at 162.
{¶96} We reject Morlock’s arguments concerning discrepancies or inconsistency’s
in Clayton’s testimony for the reasons explained in our disposition of Morlock’s First and
Second Assignments of Error.
{¶97} Morlock has not shown that there was a reasonable probability that, but for
counsel’s error, the result of his trial would have been different.
{¶98} Morlock’s Third Assignment of Error is overruled.
IV.
{¶99} In his Fourth Assignment of Error, Morlock contends that the trial court erred
and abused its discretion by failing to hold a restitution hearing to require the s tate to
prove the restitution amount by a preponderance of the evidence. Stark County, Case No. 2023 CA 00024
{¶100} We review felony sentences, including sentences ordering restitution, using
the standard of review set forth in R.C. 2953.08. [CITATION], ¶31. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a
sentence and remand for resentencing where we clearly and convincingly find that either
the record does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, [CITATION], ¶28.
{¶101} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
[CITATION], paragraph three of the
syllabus. See also, [CITATION].
“Where the degree of proof required to sustain an issue must be clear and convincing, a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” [CITATION]
at 477, 120 N.E.2d 118.
Restitution
{¶102} Morlock's counsel stated his intention to object to restitution specifically "on
the grounds of indigency * * *." Sent. T., Jan. 24, 2023 at 13. When the trial court later
[SEGMENT 29]
ordered restitution in open court, counsel only made a general objection "to the restitution
order." Id. at 19.13 Taken together this would appear to indicate that Morlock objected to
Counsel made no objections to restitution during the re-sentencing hearing that took place on
Apr. 6, 2023. Stark County, Case No. 2023 CA 00024
the restitution order on the ground that he was indigent and therefore unable to pay, not
that he disputed the amount the trial judge order that he pay to Buddy. On appeal, Morlock
objects to the amount of restitution, arguing the state failed to prove the amount by a
preponderance of the evidence. [Appellant’s brief at 24]. We find that Morlock failed to
specifically tell the trial judge he was objecting to the amount of restitution or that he was
asking for a hearing on the amount of restitution. Accordingly, he has waived all but plain
error.
{¶103} Morlock did not raise plain error with respect to restitution during the
sentencing hearing in his assignments of error or argument in this Court. Because he
does not claim plain error on appeal, we need not consider it. See, [CITATION] (appellate court need not consider plain error where appellant fails to timely raise plain-error claim); [CITATION], ¶ 25, citing [CITATION] ("when a claim is forfeited on appeal and the appellant
does not raise plain error, the appellate court will not create an argument on his behalf"); [CITATION], ¶41.
{¶104} However, even if Morlock had raised plain error on appeal, he would not
prevail. Stark County, Case No. 2023 CA 00024
{¶105} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a
sentence in order to compensate the victim for economic loss. “A trial court has discretion
to order restitution in an appropriate case and may base the amount it orders on a
recommendation of the victim, the offender, a presentence investigation report, estimates
or receipts indicating the cost of repairing or replacing property, and other information,
but the amount ordered cannot be greater than the amount of economic loss suffered as
a direct and proximate result of the commission of the offense.” [CITATION] (emphasis
added); R.C. 2929.18(A)(1). A court’s order of restitution must be supported by
competent, credible evidence. [CITATION]
{¶106} In [CITATION], the Ohio Supreme Court noted,
R.C. 2913.02(B)(5) states, “If the property stolen is a motor vehicle,
a violation of this section is grand theft of a motor vehicle, a felony of the
fourth degree,” regardless of the value of the motor vehicle. A trial court
choosing to order restitution in a case of grand theft of a motor vehicle is
not restricted to the value corresponding to a fourth-degree felony and may
instead award restitution pursuant to R.C. 2929.18(A)(1).
[CITATION], ¶24.
{¶107} “[W]hen a vehicle has been totally destroyed, ‘the measure of damages is
its reasonable market value immediately before destruction.’” [CITATION], quoting [CITATION]. Thus, the economic loss suffered by the victim when a Stark County, Case No. 2023 CA 00024
vehicle has been destroyed is the fair market value of the vehicle prior to the accident.
See id. at ¶ 12. See, [CITATION]
¶8.
{¶108} The record indicates that the state represented to the trial judge that Buddy
estimated his car’s value at $3,300.00. Sent. T., Jan 24, 2023 at 9. R.C. 2929.18(A)(1)
permits a trial judge to accept the victim’s recommendation. Receipts were admitted to
show $499.00 to replaced his cell phone and his investment in the automobile’s stereo
system to be $1,618.22. Id.
{¶109} We find that the trial judge based her order of restitution on the amount of
the economic loss suffered by the victim as a direct and proximate result of the
commission of the offenses. Had Morlock asked the trial judge for a hearing on the
amount of restitution or otherwise alerted the trial judge that he disputed the amount, we
have no doubt that the trial judge would have held a hearing. Morlock’s failure to raise the
issue precluded the trial judge from preventing or correcting any error.
{¶110} Notice of plain error “is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” [CITATION] We do
not find a manifest miscarriage of justice occurred in this case. Accordingly, we decline
to find plain error.
{¶111} Morlock’s Fourth Assignment of Error is overruled. Stark County, Case No. 2023 CA 00024
{¶112} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Wise, J., concur
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as State v. Watson, 2023-Ohio-3137.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Andrew J. King, J.
:
-vs- :
: Case No. 2022CA00145
CORTEZ WENDALL WATSON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 22CR1420A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 6, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE STONE KATHLEEN O. TATARSKY
Prosecuting Attorney 236 Third Street S.W.
By: VICKI L. DESANTIS Suite 100 Carnegie Building
110 Central Plaza South, Ste. 510 Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2022CA00145 2
Gwin, P.J.
{¶1} Defendant-appellant Cortez Wendell Watson [“Watson”] appeals his
convictions and sentences after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} On June 27, 2022, Watson was arrested and charged with murder,
felonious assault and having weapons while under disability for the shooting death of T.B.
at the Rodeway Inn in Jackson Township, Stark County, Ohio the night before. On July
7, 2022, after a preliminary hearing in the Massillon Municipal Court, Watson’s case was
bound over to the Stark County Grand Jury. On July 15, 2022, Watson’s retained counsel
filed a Notice of Appearance with the Stark County Court of Common Pleas. [Docket
Entry No. 1].
{¶3} On September 1, 2022, the Stark County Grand Jury returned an Indictment
charging Watson with Murder [felony murder], a violation of R. C. 2903.02(B)(D), an
unclassified felony, Felonious Assault, a violation of R.C. 2903.11(A)(D)(1)(a), a felony
of the second degree, Having Weapons While under Disability, a violation of R.C.
2923.13(A)(3)(B), a felony of the third degree and Tampering With Evidence, a violation
of R.C. 2921.12(A)(1)(B), a felony of the third degree. Both the murder charge and the
felonious assault charge contained firearm specifications, R. C. 2941.145(A).
{¶4} Watson did not waive his speedy trial rights. On September 6, 2022,
Watson filed a Demand for Discovery and a Notice of Intention to Use Evidence. [Docket
Entry No. 8]. The state filed a Bill of Particulars on September 9, 2022. [Docket Entry
No. 11]. Trial was scheduled for September 26, 2022. [Docket Entry No. 15].
Stark County, Case No. 2022CA00145 3
{¶5} Watson filed his witness list on September 21, 2022, listing four potential
witnesses. [Docket Entry No. 25]. An updated witness list listing five potential witnesses
was filed by Watson on September 23, 2022. [Docket Entry No. 27]. On September 23,
2022, the state filed a motion in limine asking to exclude from trial the use of alleged other
bad acts of the decedent. [Docket Entry No. 28]. A notice of appearance as co-counsel
was filed by Watson on September 26, 2022 listing attorney Gaitanos as co-counsel for
attorney Shamansky.
{¶6} Watson's jury trial began on September 26, 2022.
Shot Fired at Rodeway Inn
{¶7} On June 26, 2022, Jackson Township Police Officer Jeffrey Aynes was
patrolling the Best Western Motel on Sunset Strip. Around 11:25 pm, he heard a loud
pop. Around the same time, he received a dispatch call to the Rodeway Inn, across the
street from the Best Western for a "male in the parking lot laying down bleeding." 2T. at
411.
{¶8} Officer Aynes drove to the front of the Rodeway building and saw a group
of people grilling in front of a room in no apparent distress. Id. at 42. Officer Aynes drove
to the back of the building where he saw two males--one a hotel staff person--standing
over the man on the ground. Id. 42; State’s Exhibit 2. Officer Aynes put his protective
gloves on, got his medical kit and went to the male to render aid. Id. at 43. The male had
a weak pulse, was foaming at the mouth and Aynes saw wounds on the male's wrist and
chest. The male was shirtless, wearing blue jeans and black Nike briefs. State's Exhibit
1 For clarity, the transcript from Watson’s jury trial will be referred to as, “__T.__,” signifying the
volume and the page number.
Stark County, Case No. 2022CA00145 4
2. The medics arrived, took control of the male's care and Officer Aynes went with the
motel manager to look at surveillance videos. Id. at 45.
{¶9} The videos reviewed by Officer Ayers showed the shirtless male running
from the front of the building to the back losing blood and his flip flops. 2T. at 48; State's
Exhibit 1H; State’s Exhibit 3. The video also showed a black male wearing a black shirt
with a Black Fist logo on the back, camouflage long shorts, tennis shoes and a Cleveland
Browns ball cap pull a handgun from his waistband and shoot the shirtless male. State's
Exhibit 1U; State’s Exhibit 3.
Cortez Watson identified as shooter
{¶10} Jackson Township Detective Dustin McDannold, the lead investigator,
arrived at the scene around 1:00 am, June 27, 2022. 2T. at 116. He learned that the
male found on the ground with wounds to his arm and chest had died. He talked to the
patrol officers on the scene and viewed the Rodeway Inn videotapes that covered the
entire property. He learned from the videos that a shooting occurred outside Room 215
at 11:28 p.m. 2T. at 118-119; State’s Exhibit 3. He also viewed a videotape from the
Benjamin Transportation Service that showed the male and a woman in the back seat
leaving the Best Western Motel parking lot. State's Exhibit 12.
{¶11} Further investigation through a law enforcement database that matched
phone numbers with names revealed that Benjamin Transportation was called by K.C.,
Watson’s girlfriend, for a pickup at the Rodeway Inn. 2T. at 48-50; State’s Exhibit 3. The
pick-up spot was later changed to the Best Western across the street. Id. at 120. That
same database matched the Benjamin Transportation drop off point as an address on
Plain Avenue belonging to the mother of Watson. Id. at 120-121.
Stark County, Case No. 2022CA00145 5
{¶12} Detectives identified the shooting victim as T.B. through the LEADS
database. 2T. at 55. Further investigation revealed that T.B. and his girlfriend had rented
Room 309 that evening. No weapons were found in Room 309 or on the body of T.B.
2T. at 98, 106.
{¶13} Detective Dustin McDannold positively identified Watson from the LEADS
license photo compared to the security footage. Id. 122. Detective McDannold testified
that he could see T.B. walking and talking to Watson on the video. Id. at 144; State’s
Exhibit 3. Detective McDannold testified that T.B. did not have anything in his hands. Id.
145. He further testified that he could see Watson advance upon T.B. Id. at 145. It
appears T.B. is speaking with his hands. Id. at 144, 145. Watson can be seen going
around the car towards T.B. and discharging a firearm at T.B., who is backing up at that
point. Id. The entire interaction was less than ten seconds. Id. at 145. There was no
audio on the videos at the motel. Id. at 150.
The autopsy
{¶14} Dr. David Dolinak, a forensic pathologist with the Cuyahoga County
Coroner's office, performed an autopsy on the body of T.B. on June 27, 2022. He found
a gunshot wound that went through his right forearm, through his mid chest and the left
forearm. 2T. at 205. There was no exit wound and an orange colored polymer bullet was
recovered from the body and entered into evidence. State's Exhibit 6. Dr. Dolinak opined
that T.B. died from gunshot wounds.
{¶15} During the autopsy blood and urine specimens were taken from T.B.'s body
and toxicology tests were done. Several drugs were found in his system including
Stark County, Case No. 2022CA00145 6
methamphetamine, amphetamine, fentanyl, marijuana, norfentanyl and acetyl fentanyl.
State's Exhibit 15.
Watson testifies at trial
{¶16} Watson testified that he knew T.B. through A.M., the woman T.B. was with
at the Roadway Inn on June 26. Watson knew T.B. as "T.J.". 3T. at 58. He knew him
as a violent man with "high powered drug use." Id. at 58. Watson testified that two weeks
prior, T.B. pulled up in a car to a party where Watson was and pulled out a black firearm.
Id. at 61. Watson further testified that about a week after that incident, T.B. pulled up in
a car and fired a gun two times while Watson was sitting on the porch. Id. at 65.
{¶17} Watson testified that on June 26, 2022, he was with his girlfriend, K.C. at
the Rodeway to party and barbeque with his friends. K.C. rented a room and Watson
was drinking some beers with his friends.
{¶18} Watson testified that he saw T.B. talking loudly with his girlfriend, agitated,
moving his hands in the air. See, State’s Exhibit 3. Then, T.B. started walking behind
Watson who had joined the partygoers by the barbeque grill. Id. T.B. can be seen in the
security video appearing almost 30 seconds after Watson had walked past the same
location. State’s Exhibit 3. Watson can be seen talking and drinking outside the motel
room with his girlfriend and another male, while a third man is tending to a charcoal grill
at 11:27:26 p.m. T.B. first appears in the video walking toward the group at 11:28:11 p.m.
T.B. stops at the front of an automobile and speaks with Watson at 11:28:24 p.m. Watson
begins advancing and T.B. begins backing up at 11:28.31. Watson fires his gun at T.B.
at 11:28:33 p.m.
Stark County, Case No. 2022CA00145 7
{¶19} Watson testified to the encounter at trial. Remembering their past
interactions, Watson was scared. Watson testified that T.B. said something to him,
I can’t understand what he’s saying. I turn. I say what? What? Are
you talking to me? And he said you can’t run now bitch ass N---, I’m going
to kill you.
3T. at 72. Watson testified that he was extremely frightened and scared. This was the
closest T.B. had ever been to him and he knew he was coming to threaten him. 3T. at
74. Watson testified he was nervous when T.B. started moving his hands and when he
said those words, he just reacted. Id. at 78. Watson testified that T.B. was “reaching
toward his pocket.” Id. at 92. However, Watson admitted T.B. had his hands up and he
did not see any weapon. Id.at 92-93. Watson testified, “I fire one shot, he turns and runs."
3T. at 76. Watson saw T.B. run off and did not think T.B. was hit by the bullet. Watson
testified that he did not pursue him. Id. at 77. He was just glad that he was gone from
the area.
Rodeway security video show T.B. running and collapsing onto the ground at
11:28 p.m. State’s Exhibit 3. The videos show Watson remain with the people by the
barbeque grill with a cup and cigarette in his hand. State's Exhibit 3.
Watson testified that he saw the police, got scared because he knew he could not
have a firearm, panicked, and ran. 3T. at 82. Watson and his girlfriend can be seen
walking toward the Best Western motel at 11:36 p.m. State’s Exhibit 3. Watson can be
seen waiting with his girlfriend to catch a cab at the Best Western motel at 11:40 p.m.
State’s Exhibit 11. Watson is then seen ducking down inside the cab as it pulls away
from the scene at 11:55 p.m. State’s Exhibit 12.
Stark County, Case No. 2022CA00145 8
{¶20} J.J. proffered his testimony. 3T. at 106-117. J.J. did not know T.B.
personally, but knew of him. Id. at 107. J.J. testified that T.B. had been accused of
“cutting parts off of my friend’s car…” 3T. at 107. The friend and T.B. exchanged words
over the accusation. Id. A week later T.B. pulled over to another friend’s house and
brandished a pistol out of the car window. Id. Watson was present when this incident
occurred. Id. A week after that, T.B. pulled up and actually fired the gun in their direction.
Id. at 108. J.J. testified that he never saw T.B. outside of those two incidents. Id. at 110.
Because J.J. did not know him, Watson told J.J. that the individual with the gun was T.B.
Id. at 113. J.J. was not present for the current shooting.
{¶21} After hearing the evidence, viewing several videotapes, and receiving
instructions from the trial court, the jury began its deliberations. It returned with a
unanimous verdict of guilty to all charges in the indictment.
{¶22} Watson returned to the trial court for sentencing on October 5, 2022. The
trial court accepted the jury's verdict and sentenced Watson to fifteen years to life for
murder, three years on the gun specification, three years for having weapons under
disability and two years for tampering with evidence. The trial court merged the felonious
assault conviction with the murder conviction. Watson's aggregate prison sentence is
twenty- three years to life.
Assignments of Error
{¶23} Watson raises four Assignments of Error,
{¶24} “I. DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
Stark County, Case No. 2022CA00145 9
CONSTITUTION AND SECTION 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶25} “II. THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT THE
CONVICTION OF MURDER WHEN THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT DEFENDANT-APPELLANT DID NOT ACT IN SELF
DEFENSE.
{¶26} “III. DEFENDANT-APPELLANT’S CONVICTION FOR TAMPERING WITH
EVIDENCE WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
{¶27} “IV. DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL
RIGHT TO PRESENT A COMPLETE DEFENSE WHEN THE TRIAL COURT
EXCLUDED THE TESTIMONY OF [J.J.].”
I.
{¶28} In his First Assignment of Error, Watson argues that Defense counsel's
performance prior to trial, during the trial and after the trial was deficient. Watson presents
several areas in which he contends his trial counsel was deficient and further argues any
one and the accumulation of his tactics or lack of them warrants a reversal of appellant's
convictions and a new trial.
STANDARD OF APPELLATE REVIEW.
{¶29} To obtain a reversal of a conviction on the basis of ineffective assistance of
counsel, the defendant must prove (1) that counsel's performance fell below an objective
standard of reasonableness, and (2) that counsel's deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.
Stark County, Case No. 2022CA00145 10
Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,
693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a
court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at
699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).
Failure to waive speedy trial rights
{¶30} Watson first posits that his trial counsel did not have sufficient time to
prepare to defend him at trial and, therefore, he should have waived Watson’s right to a
speedy trial.
{¶31} Watson was arrested on June 28, 2022 and remained in jail throughout the
case. On July 7, 2022, after a preliminary hearing in the Massillon Municipal Court,
Watson’s case was bound over to the Stark County Grand Jury. Retained counsel filed
a Notice of Appearance on Watson’s behalf in his case in the Stark County Court of
Common Pleas on July 15, 2022. [Docket Entry No. 1]. The jury trial began on
September 26, 2022. Thus, counsel was representing Watson at least seventy-three
days prior to the start of trial.
{¶32} In State v. Ramey, the Ohio Supreme Court summarized the applicable law
concerning speedy trial,
The right to a speedy trial is a fundamental right of a criminal
defendant that is guaranteed by the United States and Ohio Constitutions.
Sixth Amendment to the U.S. Constitution; Ohio Constitution, Article I,
Section 10. See also State v. Hughes, 86 Ohio St.3d 424, 425, 715 N.E.2d
540 (1999). States have the authority to prescribe reasonable periods in
which a trial must be held that are consistent with constitutional
Stark County, Case No. 2022CA00145 11
requirements. Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972). “In response to this authority, Ohio enacted R.C.
2945.71, which designates specific time requirements for the state to bring
an accused to trial.” Hughes at 425, 715 N.E.2d 540. The prosecution and
the trial courts have a mandatory duty to try an accused within the time
frame provided by the statute. State v. Singer, 50 Ohio St.2d 103, 105, 362
N.E.2d 1216 (1977); see also State v. Cutcher, 56 Ohio St.2d 383, 384, 384
N.E.2d 275 (1978). Strict compliance with the statute is required. State v.
Davis, 46 Ohio St.2d 444, 448, 349 N.E.2d 315 (1976).
A defendant charged with a felony “[s]hall be brought to trial within
two hundred seventy days after the person’s arrest.” R.C. 2945.71(C)(2).
For purposes of calculating speedy-trial time, “each day during which the
accused is held in jail in lieu of bail on the pending charge shall be counted
as three days.” R.C. 2945.71(E). Thus, subject to certain tolling events, a
jailed defendant must be tried within 90 days. Id.
132 Ohio St.3d 309, 2021-Ohio-2904, 971 N.E.2d 937, ¶¶14-15. Thus, the legislature
has deemed ninety days in which to bring an incarcerated individual to trial to be
reasonable. A longer period “threatens to produce more than one sort of harm, including
‘oppressive pre-trial incarceration,’ ‘anxiety and concern of the accused,’ and ‘the
possibility that the [accused's] defense will be impaired’ by dimming memories and loss
of exculpatory evidence.” Doggett v. United States, 505 U.S. 647,654, 112 S.Ct. 2686,
120 L.Ed.2d 520(1992), quoting Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972). In this case, retained counsel had seventy-three days during which
Stark County, Case No. 2022CA00145 12
he filed for discovery and filed two witness lists. Co-counsel was also present during
pretrial conferences and at trial.
{¶33} Thus, we do not find under the facts presented here that the mere failure to
waive Watson’s constitutional and statutory rights to a speedy trial in and of itself fell
below an objective standard of reasonableness, and prejudiced the defendant resulting
in an unreliable or fundamentally unfair outcome of the proceeding.
Failure to cross-examine
{¶34} Watson next argues that his counsel’s failure to cross-examine the coroner
who perform the autopsy amounted to ineffective assistance of counsel. Specifically,
Watson argues that the toxicology report on T.B. showed the prolific number of drugs in
his system including significant amounts of amphetamine and methamphetamine.
Watson contends that several scientific studies have demonstrated that violent behavior
increases during periods of methamphetamine use, and suggests his counsel should
have cross-examined the coroner on this subject.
{¶35} The scope of cross-examination falls within the ambit of trial strategy, and
debatable trial tactics do not establish ineffective assistance of counsel. State v. Hoffner,
102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45; State v. Campbell, 90 Ohio
St.3d 320, 339, 738 N.E.2d 1178 (2000). In addition, to fairly assess counsel’s
performance, “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689,
104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶36} Nothing in the record establishes that the coroner is qualified to testify that
violent behavior increases during periods of drug use. “Nothing in the record indicates
Stark County, Case No. 2022CA00145 13
what kind of testimony [he] could have provided. Establishing that would require proof
outside the record, such as affidavits demonstrating the probable testimony. Such a claim
is not appropriately considered on a direct appeal.” State v. Madrigal, 87 Ohio St.3d 378,
390–391, 721 N.E.2d 52, 65 (2000) (rejecting claim of ineffectiveness for counsel’s failure
to utilize an expert on eyewitness identification); State v. Carter, 89 Ohio St.3d 593, 606,
734 N.E.2d 345, 357(2000) (rejecting claim of ineffectiveness for counsel’s failure to
pursue MRI testing in the penalty phase). There is nothing in the record from which we
can determine whether such evidence would have been favorable to Watson and caused
the outcome of the trial to be different. State v. Coleman, 45 Ohio St.2d 298, 307-308,
544 N.E.2d 622(1989).
{¶37} However, even assuming arguendo counsel’s failure to cross-examine the
coroner concerning the decedent’s drug usage reflected deficient performance, Watson
cannot establish prejudice under Strickland. We note that the jury heard evidence of the
drugs in T.B.’s system at the time of his death. 2T. at 211-212. The jury further heard
testimony that drugs make individuals more agitated from trial counsel’s cross-
examination of Officer Aynes. 2T. at 73. Additionally, the jury was able to observe the
decedent and Watson in real time on the motel’s video surveillance footage.
{¶38} Thus, Watson has not shown that there was a reasonable probability that,
but for counsel’s error, the result of his trial would have been different.
Failure to mount an effective self-defense theory
{¶39} Watson argues that his trial counsel did not comply with Crim. R. 12.2.
Watson argues that the trial court’s refusal to allow J.J. to testify to the prior violent
Stark County, Case No. 2022CA00145 14
acts of T.B. that he witnessed was because his trial counsel failed to comply with
Crim. R. 12.2.
{¶40} Crim. R. 12.2. states in pertinent part:
Whenever a defendant in a criminal case proposes to offer
evidence or argue self-defense, defense of another, or defense of that
person's residence, the defendant shall, not less than thirty days before
trial in a felony case and fourteen days before trial in a misdemeanor
case, give notice in writing of such intent. The notice shall include
specific information as to any prior incidents or circumstances upon
which defendant intends to offer evidence related to conduct of the
alleged victim, and the names and addresses of any witness’s
defendant may call at trial to offer testimony related to the defense. If
the defendant fails to file such written notice, the court may exclude
evidence offered by the defendant related to the defense, unless the
court determines that in the interest of justice such evidence should be
admitted.
{¶41} Prior to the start of trial, the trial judge addressed the state’s motion in limine
to exclude bad acts testimony concerning the decedent. 1T. at 207. The judge did not
mention Crim.R. 12.2; rather, the focus of the discussion was Evid. R. 404 and 405. Id.
at 213. The court permitted both counsel to further research the issue.
{¶42} The trial judge addressed the issue again after the state had rested its case.
3T. at 39. During this discussion the trial judge does review Crim.R. 12.2. Id. at 42. The
Stark County, Case No. 2022CA00145 15
judge indicated that he would not allow the testimony under Evid.R. 404 and also because
of the lack of compliance with Crim.R. 12.2. Id. at 50-51.
{¶43} J.J.’s name was provided to the state in both the defendant’s witness list
filed September 21, 2022 and the updated witness list filed September 23, 2022.
{¶44} We note that Crim R. 12.2 is a rule of procedure, not a rule of evidence.
The rule requires only that the defense notify the state of evidence that the defense may
offer in support of his self-defense claim. It does not appear to this Court to make the
evidence admissible at trial, per se. Whether any particular piece of evidence is
admissible at trial would be determined by the Rules of Evidence, not the Rules of
Criminal Procedure. In the case at bar, the trial court also ruled the testimony of J.J.
inadmissible under Evid. R. 404 and 405.
{¶45} Even if counsel’s failure to comply with Crim R. 12.2 reflected deficient
performance, Watson has failed to establish prejudice under Strickland.
{¶46} The trial judge did permit Watson to present his self-defense case to the
jury and further instructed the jury on the issue of self-defense. The jury heard Watson
himself testify concerning the prior violent acts of T.B. and how they affected him.
Further, the jury was able to view the actors and their actions in real time via the
surveillance videos. Watson fails to elucidate how J.J.’s corroboration of the
instances of T.B.’s conduct would have led the jury to find Watson not guilty of
murder.
{¶47} Thus, Watson has not shown that there was a reasonable probability that,
but for J.J.’s testimony, the result of his trial would have been different.
Stark County, Case No. 2022CA00145 16
Failure to attend significant court proceedings
{¶48} Watson next argues that his lead counsel was ineffective because co-
counsel attended the arraignment and pre-trial conferences. We find, however, that
argument to lack merit. We note that co-counsel also represented Watson, along with
lead counsel, during Watson’s jury trial. Watson was represented by competent counsel
at all stages of the case. Watson has not shown that there was a reasonable probability
that, but for lead counsel’s failure to personally attend pre-trial conferences, the result of
his trial would have been different.
Failure to sever the weapons under disability charge from the remaining
charges
{¶49} Watson argues trial counsel was ineffective in not asking to have the Having
Weapons While under Disability charge severed and tried separately by the trial judge.
Watson contends because of trial counsel's inaction, the jury heard about Watson's prior
felony record which could have been avoided. He argues that such evidence clearly
prejudiced Watson as the jury learned he was a convicted felon.
{¶50} Prior to voir dire, trial counsel stipulated to Watson's prior conviction in 2009
for possession of cocaine and, also stipulated to the operability of the firearm. 1T. at 7;
4T. at 52.
{¶51} A defendant has no constitutional right to determine trial tactics and strategy
of counsel. State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298(1999); State v.
Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 150; State v. Donkers,
170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557, ¶ 183(11th Dist.). Rather,
decisions about viable defenses are the exclusive domain of defense counsel after
Stark County, Case No. 2022CA00145 17
consulting with the defendant. Id. When there is no demonstration that counsel failed to
research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing
court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio St.2d 45, 49,
402 N.E.2d 1189(1980), citing People v. Miller, 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841,
498 P.2d 1089(1972); State v. Wiley, 10th Dist. No. 03AP-340, 2004-Ohio-1008 at ¶ 21.
Even if the wisdom of an approach is questionable, “debatable trial tactics” do not
constitute ineffective assistance of counsel. Id. “Poor tactics of experienced counsel,
however, even with disastrous result, may hardly be considered lack of due process * *
*.” State v. Clayton, 62 Ohio St.2d 45, 48, 402 N.E.2d 1189 (1980) (quoting United States
v. Denno, 313 F.2d 364 (2nd Cir.1963), certiorari denied 372 U.S. 978, 83 S.Ct. 1112, 10
L.Ed.2d 143.
{¶52} As part of his defense, Watson explained to the jury why he left the scene
after he shot T.B. Watson testified during his trial that he left the scene and did not stay
to speak to the police after the shooting because he was not permitted to have a firearm.
Thus, counsel may have made a tactical decision to allow the jury to hear that Watson
had a 12-year-old conviction for possessing cocaine rather than leaving the jury to
speculate as to a more nefarious reason why he could not possess a weapon.
{¶53} In light of the overwhelming evidence of Watson’s guilt, we find that even if
counsel’s failure to have the charges severed for trial reflected deficient performance,
Watson has failed to establish prejudice under Strickland. Watson has not shown that
there was a reasonable probability that, but for the jury being aware of his prior conviction
for possession of cocaine, the jury would have found him not guilty of murder.
Stark County, Case No. 2022CA00145 18
Failure to object to testimony from law enforcement regarding search
warrants
{¶54} Watson suggests that search warrants required a neutral judge to decide
sufficient probable cause to demonstrate that a search was warranted for a crime that
occurred. Allowing the investigating police officers to testify that they had obtained search
warrants for T.B.’s room and Watson’s room at the Rodeway Inn essentially told that jury
that Watson was involved with a murder thereby destroying his presumption of innocence.
Therefore, Watson submits, his trial counsel’s failure to object to this testimony and
request a limiting instruction amounted to ineffective assistance.
{¶55} “‘The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.’” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d
136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988).
A defendant must also show that he was materially prejudiced by the failure to object.
Holloway, 38 Ohio St.3d at 244, 527 N.E.2d 831. Accord, State v. Hale, 119 Ohio St.3d
118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 233.
{¶56} It is unlikely that the trial judge would have prevented the testimony even if
counsel had objected. The testimony merely informed the jury about the protocol the
police used to investigate the crime. The jury was informed that the police legally and
properly searched the rooms during the investigation. Watson never denied shooting T.B.
Watson never denied having the gun used to shoot T.B. Watson was arrested for
shooting T.B. Thus, the jury could infer that Watson was involved with a crime, even a
murder, without the evidence relating to the search warrants.
Stark County, Case No. 2022CA00145 19
{¶57} In any event, the presumption of innocence was fully explained in the voir
dire and the jury instructions. See, State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164,
793 N.E.2d 446, ¶ 75. “[J]uries are presumed to follow their instructions.” Zafiro v. United
States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). “A presumption
always exists that the jury has followed the instructions given to it by the trial court,” Pang
v. Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313(1990), at paragraph four of the
syllabus, rehearing denied, 54 Ohio St.3d 716, 562 N.E.2d 163, approving and following
State v. Fox, 133 Ohio St. 154, 12 N.E.2d 413(1938); Browning v. State, 120 Ohio St. 62,
165 N.E. 566(1929).
{¶58} Even if counsel’s failure to object to testimony concerning the police
obtaining search warrants could be construed as deficit performance, Watson has failed
to establish prejudice under Strickland. Watson has not shown that there was a
reasonable probability that, but for the testimony concerning the search warrants, the
result of his trial would have been different.
Failure to object to testimony from law enforcement that Watson was in jail or
request a limiting instruction
{¶59} Watson next argues that trial counsel failed to object or request a curative
instruction when Detective McDannold testified he collected Watson’s DNA from Watson
at the Stark County Jail. Watson contends that the fact that he was in jail destroyed the
presumption of innocence in the eyes of the jury.
{¶60} We note that the detective’s testimony concerning jail was not solicited by
the prosecutor. The statement was isolated and occurred when the detective was
explaining his collection of the evidence and the chain of custody. 2T. at 147. The
Stark County, Case No. 2022CA00145 20
evidence that Watson was in jail related solely to when Watson’s DNA was collected by
the detective and does not convey that Watson was in jail from the time of his arrest to
the time of trial.
{¶61} The failure to request a curative instruction may have been a tactical
decision by counsel to avoid calling additional attention to the statement which, in and of
itself, created no prejudice to Watson in light of the totality of the evidence adduced. In
addition, the presumption of innocence was fully explained in the voir dire and the jury
instructions. See, State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d
446, ¶ 75.
{¶62} Even if counsel’s failure to object reflected deficient performance, Watson
has failed to establish prejudice under Strickland. Watson has not shown that there was
a reasonable probability that, but for the jury being aware that he was in jail at the time
the detective collected his DNA, the result of his trial would have been different.
Failure to request an expert witness to testify to the effect of drugs found in
the T.B.'s system
{¶63} Watson suggests that an expert opinion and testimony that discussed the
effects of the drugs taken by T.B. on his demeanor and violent words and actions would
have substantially supported Watson's theory of self-defense.
{¶64} “Nothing in the record indicates what kind of testimony an * * * expert could
have provided. Establishing that would require proof outside the record, such as affidavits
demonstrating the probable testimony. Such a claim is not appropriately considered on
a direct appeal.” State v. Madrigal, 87 Ohio St.3d 378, 390–391, 721 N.E.2d 52, 65
(2000) (rejecting claim of ineffectiveness for counsel’s failure to utilize an expert on
Stark County, Case No. 2022CA00145 21
eyewitness identification); State v. Carter, 89 Ohio St.3d 593, 606, 734 N.E.2d 345,
357(2000) (rejecting claim of ineffectiveness for counsel’s failure to pursue MRI testing in
the penalty phase). There is nothing in the record from which we can determine whether
such evidence would have been favorable to Watson and caused the outcome of the trial
to be different. State v. Coleman, 45 Ohio St.2d 298, 307-308, 544 N.E.2d 622(1989).
Further, the jury was able to view the actors and their actions before, during, and after
the shooting in real time via the surveillance videos.
{¶65} Thus, we reject Watson’s claim that counsel’s failure to request an expert
to testify to the effect of drugs found in the victim's system constituted ineffective
assistance of counsel.
Disrespect of the trial court judge in front of the jury
{¶66} Watson contends that animosity and disrespect of Watson's trial counsel to
the court was viewed by the jury. However, Watson cites to only the following as evidence
in support of his claim,
THE COURT: Hey counsel, you’re starting to repeat yourself over
and over.
[DEFENSE COUNSEL]: I’m sorry, Judge
THE COURT: That’s okay. Its closing argument.
[DEFENSE COUNSEL]: I - - I don’t want – I don’t want you to be
angry with me.
THE COURT: I’m not angry one bit. I’m just doing my job as judge.
[DEFENSE COUNSEL]: I don’t want you think [sic.] I’m –
THE COURT: That’s all.
Stark County, Case No. 2022CA00145 22
[DEFENSE COUNSEL]: I don’t want you to think I’m screwing up. I
want to - -
[THE COURT]: I’m not saying anyone is screwing up. I just said- -
[DEFENSE COUNSEL]: I want to meet the court’s expectations. I’ll
move on.
THE COURT: Wait. Wait a minute. Let’s have a sidebar.
4T. at 92. The remaining exchange occurred outside the hearing of the jury. Id. Watson
cites to no other place in the record to support his assertion that defense counsel
displayed animosity and disrespect toward the trial judge.
{¶67} Even if counsel’s attitude and remarks reflected deficient performance,
which we do not find to be the case, Watson has failed to establish prejudice under
Strickland. Watson has not shown that there was a reasonable probability that, but for
the exchange between the judge and defense counsel, the result of his trial would have
been different.
Cumulative errors
{¶68} Watson contends all of these issues collectively amounted to cumulative
error.
{¶69} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,
the Ohio Supreme Court recognized the doctrine of cumulative error. However, as
explained in State v. Bethel, 110 Ohio St.3d 416, 2006–Ohio–4853, 854 N.E.2d 150,
¶197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105
Ohio St.3d 104, 2004–Ohio–7008, 822 N.E.2d 1239, ¶103.
Stark County, Case No. 2022CA00145 23
{¶70} Watson cites the doctrine of cumulative error, lists, or incorporates the
previous assignments of error, and gives no analysis or explanation as to why or how the
errors have had a prejudicial cumulative effect. Thus, this assignment of error has no
substance under Bethel and Sapp.
{¶71} Further, where we have found that the trial court did not err, cumulative error
is simply inapplicable. State v. Carter, 5th Dist. Stark No.2002CA00125, 2003–Ohio-
1313 at ¶37. To the extent that we have found that any claimed error of the trial court
was harmless, or that claimed error did not rise to the level of plain error, we conclude
that the cumulative effect of such claimed errors is also harmless because taken together,
they did not materially affect the verdict. State v. Leonard, 104 Ohio St.3d 54, 89–90,
2004–Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185.
{¶72} Watson’s First Assignment of Error is overruled.
II.
{¶73} In his Second Assignment of Error, Watson argues that the manifest weight
of the evidence supports that he acted in self-defense when he shot T.B.
Standard of Appellate Review – Manifest Weight
{¶74} The state’s new burden of disproving the defendant’s self-defense claim
beyond a reasonable doubt is subject to a manifest-weight review on appeal. State v.
Messenger, Slip Op. No. 2022-Ohio-4562, ¶27.
{¶75} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
Stark County, Case No. 2022CA00145 24
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
{¶76} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of
appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with
the fact finder’s resolution of the conflicting testimony. Thompkins at 387, 678 N.E.2d
541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982)
(quotation marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1244, ¶25, citing Thompkins. As one Court has explained,
When faced with a manifest weight of the evidence challenge, we
must consider whether the state “carried its burden of persuasion” before
the trial court. State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26;
see State v. Martin, Slip Opinion No. 2022-Ohio-4175, ¶ 26. Unlike the
burden of production, which concerns a party’s duty to introduce enough
evidence on an issue, the burden of persuasion represents a party’s duty to
convince the factfinder to view the facts in his or her favor. Messenger at ¶
17. Therefore, in order for us to conclude that the factfinder’s adjudication
of conflicting evidence ran counter to the manifest weight of the evidence—
which we reserve for only the most exceptional circumstances—we must
find that the factfinder disregarded or overlooked compelling evidence that
weighed against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387-
Stark County, Case No. 2022CA00145 25
388, 678 N.E.2d 541 (1997). We accordingly sit as a “thirteenth juror” in
this respect. Id.
State v. Gibson, 1st Dist. Hamilton No. C-220283, 2023-Ohio-1640, ¶ 8.
{¶77} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). The Ohio Supreme Court has emphasized: “‘[I]n determining whether the
judgment below is manifestly against the weight of the evidence, every reasonable
intendment and every reasonable presumption must be made in favor of the judgment
and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d
517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 603, at 191–192 (1978).
{¶78} Further, to reverse a jury verdict as being against the manifest weight of the
evidence, a unanimous concurrence of all three judges on the court of appeals panel
reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio
Constitution. Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, ¶ 2-4,
citing Thompkins at paragraph four of the syllabus.
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered
Stark County, Case No. 2022CA00145 26
{¶79} Watson was convicted of felony murder pursuant to R. C. 2903.02(B) which
provides that "[no] person shall cause the death of another as a proximate result of the
offender's committing or attempting to commit an offense of violence that is a felony of
the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the
Revised Code."
{¶80} When an accused asserts the defense of self-defense he does not seek to
negate any of the elements of the offense which the state is required to prove. Self-
defense is not merely a denial or contradiction of evidence offered by the state to prove
the essential elements of the charged crime. Rather, it is an admission of the prohibited
conduct coupled with a claim that the surrounding facts or circumstances exempt the
accused from liability therefor— “justification for admitted conduct.” State v. Poole, 33
Ohio St.2d 18, 294 N.E.2d 888 (1973).
{¶81} In order to determine the respective duties with respect to a self-defense
claim, we must turn to R.C. 2901.05(B)(1),
(B)(1) A person is allowed to act in self-defense, defense of another,
or defense of that person’s residence. If, at the trial of a person who is
accused of an offense that involved the person’s use of force against
another, there is evidence presented that tends to support that the accused
person used the force in self-defense, defense of another, or defense of
that person’s residence, the prosecution must prove beyond a reasonable
doubt that the accused person did not use the force in self-defense, defense
of another, or defense of that person’s residence, as the case may be.
Stark County, Case No. 2022CA00145 27
{¶82} Under R.C. 2901.05(B)(1) there are two burdens. State v. Davidson-Dixon,
8th Dist. Cuyahoga No. 109557, 2021-Ohio-1485, ¶ 18. The defendant has the initial
burden of production, which is the burden of producing evidence “that tends to support”
that the defendant used the force in self-defense. State v. Messenger, Slip Op. 2022-
Ohio-4462, 2022 WL 17824346, ¶ 21. The burden then shifts to the state under its burden
of persuasion to prove beyond a reasonable doubt that the defendant did not use the
force in self-defense. Id. at ¶ 24. In other words, if the evidence tends to support that the
defendant acted in self-defense, then the prosecution must prove beyond a reasonable
doubt that the defendant did not act in self-defense. R.C. 2901.05(B)(1); Id. at ¶26; State
v. Gatewood, 1st Dist. Hamilton No. C-190654, 2021-Ohio-3325, ¶ 68. The state need
only disprove one of the elements of self-defense beyond a reasonable doubt at trial to
sustain its burden. State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d 893(1986).
Accord, State v. Carney, 10th Dist. Franklin No. 19AP-402, 2020-Ohio-2691, ¶31; State
v. Staats, 5th Dist. Stark No. 2019CA00181, ¶ 28.
{¶83} At the close of Watson’s jury trial, the trial court provided the jury with
an instruction regarding self-defense, which means that the trial court concluded that
the record contained evidence that tends to support that Watson used the force in self-
defense when he shot and killed T.B. R.C. 2901.05(B)(1). State v. Messenger, Slip Op.
2022-Ohio-4462, 2022 WL 17824346, ¶ 26. The guilty verdict means that the state met
its burden of persuading the jury beyond a reasonable doubt that Watson was not
acting in self-defense when he killed T.B. Id.
{¶84} When deadly force is used, the elements of self-defense that the state must
now disprove at least one of are: (1) Watson was not at fault in creating the situation
Stark County, Case No. 2022CA00145 28
giving rise to the affray, (2) Watson had reasonable grounds to believe and an honest
belief even if mistaken that he was in imminent danger of death or great bodily harm and
that he did not use more force than necessary to defend against the attack and (3) Watson
must not have violated any duty to retreat or avoid the danger. State v. Robbins, 58 Ohio
St.2d 74, 79, 388 N.E.2d 755 (1979) (citations omitted); See also, State v. Barker, 2nd
Dist. Montgomery, 2022-Ohio-3756, 199 N.E.3d 626, ¶27; State v. Evans, 8th Dist.
Cuyahoga No. 79895, 2002-Ohio-2610, 2002 WL 1041745, ¶ 53; State v. Hamilton, 12th
Dist. Butler No. CA2001-04-098, 2002-Ohio-3862, 2002 WL 1758358, ¶17.
{¶85} As to the third element of self-defense, we note that the trial court instructed
the jury in accordance with the recently amended “stand your ground” law in Ohio. 4T. at
44. That law now indicates that “a person has no duty to retreat before using self-defense
* * * if that person is in a place in which the person lawfully has a right to be.” R.C.
2901.09(B); State v. Messenger, Slip Op. 2022-Ohio-4462, 2022 WL 17824346, ¶10.
“‘Simply put, the new ‘stand your ground’ law removes, in most cases, the duty to retreat
before using self-defense.’” State v. Degahson, 2nd Dist. Clark No. 2021-CA-35, 2022-
Ohio-2972, ¶ 15. State v. Mitchell, 1st Dist. Hamilton No. C-220471, 2023-Ohio-2604, ¶
17; State v. Robinette, 5th Dist. Stark No 2021 CA 00124, 2023-Ohio-5, 205 N.E.3d 633,
¶51.
{¶86} The second element of self-defense “is a combined subjective and objective
test.” State v. Thomas, 77 Ohio St.3d 323, 330, 673 N.E.2d 1339 (1997). The person’s
belief must be objectively reasonable under the circumstances and he must subjectively
believe he needed to resort to force to defend himself or the other person. Id. at 330–
331, 673 N.E.2d 1339.
Stark County, Case No. 2022CA00145 29
“The objective part of the test requires consideration of ‘whether,
considering all of the defendant’s particular characteristics, knowledge, or
lack of knowledge, circumstances, history, and conditions at the time of the
attack,’ a reasonable person would believe that danger was imminent.”
State v. Hendrickson, 4th Dist. No. 08CA12, 2009-Ohio-4416, 2009 WL
2682158, ¶ 30, quoting State v. Keith, 10th Dist. Franklin Nos. 08AP–28,
08AP–29, 2008-Ohio-6122, ¶ 23, citing Thomas, 77 Ohio St.3d at 330, 673
N.E.2d 1339. The subjective part requires consideration of whether the
defendant himself actually believed that he was in imminent danger. Id.
State v. Bundy, 4th Dist. Pike No. 11 CA 818, 2012-Ohio-3934, ¶54; Accord, State v.
Wilson, 1st Dist. Hamilton No. C-210535, 2022-Ohio-3801, ¶13.
{¶87} Here, the evidence does not support that Watson possessed the necessary
objective and subjective beliefs he was in imminent or immediate danger of death or great
bodily harm. Generally, neither words alone nor fear itself will constitute evidence of
serious provocation. "[W]ords alone will not constitute reasonably sufficient provocation
to incite the use of deadly force in most situations." State v. Shane, 63 Ohio St.3d 630,
634-45, 590 N.E.2d 272 (1992).” Fear alone is insufficient to demonstrate the kind of
emotional state necessary to constitute sudden passion or fit of rage." State v. Mack, 82
Ohio St.3d 198, 201, 694 N.E.2d 1328. Cases have held that a victim's simple pushing
or punching does not constitute sufficient provocation to incite the use of deadly force in
most situations. See, State v. Koballa, 8th Dist. Cuyahoga No. 82013, 2003-Ohio-3535
(concluding that sufficient provocation did not exist when the victim grabbed the
defendant by the testicles and the arm); State v. Poe 4th Dist. Jackson No. 00CA9, 2000-
Stark County, Case No. 2022CA00145 30
Ohio-1966 (concluding that the victim's conduct in approaching the defendant with a
hammer and stating "come on" did not constitute sufficient provocation). State v. Pack,
4th Dist. Pike No. 93CA525, 1994 WL 274429(June 20, 1994) ("We find that a mere shove
and a swing (which appellant by his own testimony ducked) are insufficient as a matter of
law to constitute serious provocation reasonably sufficient to incite or arouse appellant
into using deadly force."). Although stated in terms of provocation, we find the same
analysis would apply to whether a defendant, by reason of the actions of the victim,
possessed the necessary objective and subjective beliefs he was in imminent or
immediate danger of death or great bodily harm. State v. Becker, 5th Dist. Stark No. 2022
CA 0069, 2023-Ohio-601, ¶27.
{¶88} Implicit in the second element of self-defense is the requirement that the
degree of force used was warranted under the circumstances and proportionate to the
perceived threat. State v. Kean, 10th Dist. Franklin No. 17AP-427, 2019-Ohio-1171, ¶
58. As to the degree of force that is permitted, the defendant is privileged to use the
amount of force that is reasonably necessary to repel the attack. State v. Williford, 49
Ohio St. 3d 247, 551 N.E.2d 1279 (1990). In other words, one may use a commensurate
amount of force as the circumstances require to protect oneself against an attack. Akron
v. Dokes, 31 Ohio App.3d 24, 25, 507 N.E.2d 1158 (9th Dist. 1986).
{¶89} Watson testified to only verbal threats made by T.B. prior to Watson’s use
of deadly force. The video evidence shows T.B. was shirtless, unarmed, and was backing
up with his arms raised, hands empty, when Watson appears to step forward towards
T.B., while pulling out his pistol from his waistband, and shot T.B. The video evidence
shows that T.B. did not charge Watson; did not raise a fist to Watson; and that T.B. was
Stark County, Case No. 2022CA00145 31
not within arm’s reach of Watson. Even setting aside the question of who the aggressor
was, Watson testified that T.B. did not have any sort of weapon in his hands at any time
during the altercation. If Watson’s fear was only of physical harm, he was allowed by law
only to use an amount of force that was warranted under the circumstances and
proportionate to the perceived threat. Watson’s decision to shoot T.B. was deadly force
and was disproportionate to the threat he faced under these circumstances.
{¶90} While Watson was free to argue that he was justified in using deadly force,
and the trial court instructed the jury accordingly, the jury may have chosen to discredit
his testimony. The jury saw Watson and all the witnesses subjected to cross-
examination. The jury also reviewed the Rodeway surveillance video, Best Western
surveillance video, and the video from the Benjamin Transportation Company showing
the events as they happened in real time.
{¶91} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which Watson was convicted. We further find there is substantial evidence
proving beyond a reasonable doubt that Watson was not acting in self-defense when
he killed T.B., and further, the degree of force used by Watson was unwarranted under
the circumstances and disproportionate to the perceived threat. Therefore, in light of the
evidence discussed above, as well as the record in its entirety, we do not find the jury
clearly lost its way concluding that Watson murdered T.B. and that he was not acting in
self-defense. We do not find that the jury disregarded or overlooked compelling evidence
that weighed against conviction.
{¶92} Watson’s Second Assignment of Error is overruled.
Stark County, Case No. 2022CA00145 32
III.
{¶93} In his Third Assignment of Error, Watson contends that there is insufficient
evidence to support his conviction for tampering with evidence; further he argues the
conviction is against the manifest weight of the evidence.
{¶94} Watson argues that the state based its theory of tampering with evidence
on the discovery of the Ruger pistol in Room 215. He claims, however, that the video
evidence and the testimony of law enforcement do not support the finding that Watson
attempted to conceal the weapon. It was found in plain view under the air conditioner
and/or a chair. It was not thrown in a waste basket or hidden in a drawer.
Standard of Appellate Review– Sufficiency of the Evidence.
{¶95} The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92,
136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence
involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio
St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the
elements of the charged offense and a review of the state's evidence.” State v.
Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶96} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
Stark County, Case No. 2022CA00145 33
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant inquiry is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474,
2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do
not second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,
[the evidence] would convince the average mind of the defendant's guilt beyond a
reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),
quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will
not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could
not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d
70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,
430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-
5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review: Whether, after viewing the evidence in the light
most favorable to the prosecution, the evidence, if believed, would convince the
average mind that Watson was guilty beyond a reasonable doubt of Tampering with
Evidence
{¶97} R.C. 2921.12(A)(1) provides that “no person, knowing that an official
proceeding or investigation is in progress, or is about to be or likely to be instituted, shall
* * * alter, destroy, conceal, or remove any record, document, or thing, with purpose to
impair its value or availability as evidence in such proceeding or investigation[.]”
Stark County, Case No. 2022CA00145 34
{¶98} Thus, to prove tampering with evidence, the state had to prove that Watson
(1) had knowledge that an official proceeding or investigation was in progress or likely to
be instituted; (2) altered, destroyed, concealed, or removed the potential evidence; and
(3) for the purpose of impairing the potential evidence’s availability or value in such
proceeding or investigation. State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11
N.E.3d 1175, ¶ 11. A conviction for tampering with evidence pursuant to R.C.
2921.12(A)(1) requires proof that the defendant intended to impair the value or availability
of evidence that related to an existing or likely official investigation or proceeding.
Likelihood is measured at the time of the act of alleged tampering. Straley, ¶19.
{¶99} T.B. and his girlfriend rented Room 309; Room 223 was rented by K.C.,
Watson's girlfriend. 2T. at 94, 122. Detective Shanklin reviewed the security footage
and noted the shooting occurred in front of Room 215. 2T. at 90-91. Because he saw
people go into that room after the shooting, he obtained a search warrant for that room.
Detective Shanklin searched Room 215 and found a Ruger silver/black pistol under the
air conditioning unit and/or a chair.
{¶100} Watson knew the police were arriving. He did not give the pistol to the
police or direct the police to where the pistol he had used to shoot T.B. could be found.
Watson fled the scene leaving the pistol behind. Watson did not leave the pistol on the
bed or the desk; rather he removed the pistol from his waistband, placed it inside a room
that he was not associated with, and placed it behind a chair, and underneath the wall
mounted air conditioning unit. The jury could infer that he did so in an attempt to prevent
the police from locating it. The jury was able to view a photograph of exactly where the
pistol was placed when it was discovered by the police. 2T. at 100; State’s Exhibit 1-P.
Stark County, Case No. 2022CA00145 35
{¶101} Viewing the evidence in the case at bar in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that Watson knowing the police were investigating the shooting death
of T.B. concealed, or removed the potential evidence for the purpose of impairing the
potential evidence’s availability or value in such investigation.
{¶102} We hold, therefore, that the state met its burden of production regarding
each element of the crime of tampering with evidence and, accordingly, there was
sufficient evidence to submit the charge to the jury and to support Watson’s conviction.
Standard of Appellate Review – Manifest Weight
{¶103} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
{¶104} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of
appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with
the fact finder’s resolution of the conflicting testimony. Thompkins at 387, 678 N.E.2d
541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982)
Stark County, Case No. 2022CA00145 36
(quotation marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1244, ¶25, citing Thompkins. As one Court has explained,
When faced with a manifest weight of the evidence challenge, we
must consider whether the state “carried its burden of persuasion” before
the trial court. State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26;
see State v. Martin, Slip Opinion No. 2022-Ohio-4175, ¶ 26. Unlike the
burden of production, which concerns a party’s duty to introduce enough
evidence on an issue, the burden of persuasion represents a party’s duty to
convince the factfinder to view the facts in his or her favor. Messenger at ¶
17. Therefore, in order for us to conclude that the factfinder’s adjudication
of conflicting evidence ran counter to the manifest weight of the evidence—
which we reserve for only the most exceptional circumstances—we must
find that the factfinder disregarded or overlooked compelling evidence that
weighed against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387-
388, 678 N.E.2d 541 (1997). We accordingly sit as a “thirteenth juror” in
this respect. Id.
State v. Gibson, 1st Dist. Hamilton No. C-220283, 2023-Ohio-1640, ¶ 8.
{¶105} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). The Ohio Supreme Court has emphasized: “‘[I]n determining whether the
Stark County, Case No. 2022CA00145 37
judgment below is manifestly against the weight of the evidence, every reasonable
intendment and every reasonable presumption must be made in favor of the judgment
and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d
517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 603, at 191–192 (1978).
{¶106} Further, to reverse a jury verdict as being against the manifest weight of the
evidence, a unanimous concurrence of all three judges on the court of appeals panel
reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio
Constitution. Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, ¶ 2-4,
citing Thompkins at paragraph four of the syllabus.
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered.
{¶107} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon
the entire record in this matter we find Watson’s conviction for tampering with evidence
is not against the sufficiency or the manifest weight of the evidence. To the contrary, the
jury appears to have fairly and impartially decided the matters before them. The jury
heard the witnesses, evaluated the evidence, and was convinced of Watson’s guilt.
{¶108} Upon review of the entire record, weighing the evidence and all reasonable
inferences as a thirteenth juror, including considering the credibility of witnesses, we
Stark County, Case No. 2022CA00145 38
cannot reach the conclusion that the trier of facts lost its way and created a manifest
miscarriage of justice. We do not find the jury erred when it found Watson guilty. Taken
as a whole, the testimony and record contain ample evidence of Watson’s responsibility
for the crime of tampering with evidence. The jury was able to observe the witnesses,
including Watson, testify subject to cross-examination. The jury was able to view a
photograph of exactly where the pistol was placed when it was discovered by the police.
2T. at 100; State’s Exhibit 1-P.
{¶109} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime of tampering with evidence for which Watson was convicted. We do not find that
the jury disregarded or overlooked compelling evidence that weighed against conviction.
{¶110} Watson’s Third Assignment of Error is overruled.
IV.
{¶111} In his Fourth Assignment of Error, Watson argues that the trial judge
violated his right to present a meaningful defense by excluding the testimony of J.J.
Specifically, Watson argues that J.J.’s testimony was admissible because it would support
his self-defense claim in that it would corroborate why Watson believed T.B. would kill or
severely injure him.
Standard of Appellate Review
{¶112} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991).
Stark County, Case No. 2022CA00145 39
Issue for Appellate Review: Whether the trial court violated Watson’s right to
present a meaningful defense by excluding the testimony of a defense witness
concerning specific acts of the decedent
{¶113} Every criminal defendant has a constitutional right to present a meaningful
defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986).
A defendant has an absolute right to prepare an adequate defense under the Sixth
Amendment of the United States Constitution and a right to due process under the Fifth
and Fourteenth Amendments. United States v. Crossley, 224 F.3d 847, 854 (6th Cir.
2000). The United States Supreme Court has recognized that the right to offer the
testimony of witnesses and compel their attendance is constitutionally protected.
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).
The Ohio Supreme Court recognized that the right to present a witness to establish a
defense is a fundamental element of due process of law. Lakewood v. Papadelis, 32
Ohio St.3d 1, 4–5, 511 N.E.2d 1138 (1987).
{¶114} As we noted in our disposition of Watson’s First Assignment of Error, the
trial judge did permit Watson to present his self-defense case to the jury and further
instructed the jury on the issue of self-defense. The jury heard Watson himself testify
concerning the prior violent acts of T.B. and how they affected him. Further, the jury
was able to view the actors and their actions in real time via the surveillance videos.
{¶115} Assuming arguendo that the trial judge erred in excluding the testimony of
J.J., we would still find no reversible error. Where, as here, the defendant has objected
to a claimed error in the trial court, an appellate court reviews error under a harmless
Stark County, Case No. 2022CA00145 40
error standard set forth in Crim.R. 52(A). State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-
297, 802 N.E.2d 643, ¶ 15.
{¶116} Crim.R. 52(A) defines harmless error in the context of criminal cases and
provides: “Any error, defect, irregularity, or variance which does not affect substantial
rights shall be disregarded.” Under the harmless-error standard of review, “the
government bears the burden of demonstrating that the error did not affect the substantial
rights of the defendant.” State v. Perry, 101 Ohio St.3d 118, 2004–Ohio–297, 802 N.E.2d
643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d
508 (1993). An appellate court is required to reverse the conviction when the state is
unable to meet its burden. Perry at ¶ 15. See, also, State v. West, 168 Ohio St.3d 605,
2022-Ohio-1556, 200 N.E.3d 1048, ¶ 22.
{¶117} The following analysis was established to guide appellate courts in
determining whether an error has affected the substantial rights of a defendant, thereby
requiring a new trial. First, it must be determined whether the defendant was prejudiced
by the error, i.e., whether the error had an impact on the verdict. State v. Morris, 141
Ohio St.3d 399, 2014–Ohio–5052, 24 N.E.3d 1153, ¶ 25 and 27. Second, it must be
determined whether the error was not harmless beyond a reasonable doubt. Id. at ¶ 28.
Lastly, once the prejudicial evidence is excised, the remaining evidence is weighed to
determine whether it establishes the defendant’s guilt beyond a reasonable doubt. Id. at
¶ 29, 33. See also, State v. Harris, 142 Ohio St.3d 211, 2015–Ohio–166, 28 N.E.3d 1256,
¶ 36–37.
{¶118} The jury heard the evidence of T.B.’s prior encounters with Watson from
Watson himself. J.J. was not present when Watson shot T.B. At best, J.J.’s testimony
Stark County, Case No. 2022CA00145 41
corroborates Watson’s testimony concerning the prior encounters with T.B. As we noted
in our disposition of Watson’s Second Assignment of Error, the video evidence and the
testimony establish beyond a reasonable doubt that Watson was not acting in self-
defense at the time that he shot T.B. and further, the degree of force used by Watson
was unwarranted under the circumstances and disproportionate to the perceived threat.
We therefore find that the exclusion of J.J.’s testimony did not change the result of
the trial and had no impact on the verdict. The exclusion of J.J.’s testimony, if error,
was harmless beyond a reasonable doubt.
{¶119} Further we find that even if we consider J.J.’s testimony, the testimony does
not overcome the overwhelming evidence that supports the finding that Watson did not
possess the necessary objective and subjective beliefs he was in imminent or immediate
danger of death or great bodily harm at the time he shot T.B. and further, that the degree
of force used by Watson was unwarranted under the circumstances and disproportionate
to the perceived threat.
{¶120} Watson’s Fourth Assignment of Error is overruled.
{¶121} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
King, J., concur
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
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Law
9882460
[SEGMENT 1]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
JENNIFER LAYNE GRISSOM CURTIS, :
et al. :
: C.A. No. 29994
Appellees :
: Trial Court Case No. 2023 MSC 00102
v. :
: (Appeal from Common Pleas Court-
DERF D. EDSELL, et al. : Probate Division)
:
Appellant :
...........
OPINION
Rendered on September 6, 2024
...........
JOHN H. STACHLER, SEAN H. HARMON, & ADAM M. PITCHEL, Attorneys for
Appellant
GARY J. LEPPLA, Attorney for Appellee
.............
TUCKER, J.
{¶ 1} Defendant-appellant Derf D. Edsell appeals from a declaratory judgment that
his sister’s children were vested beneficiaries of The Mary Joan Layne Family Trust and
that he was limited in his ability to sell the residential property for which he was granted -2-
a life estate. Edsell challenges these conclusions and asserts that the probate court
improperly considered extrinsic evidence in reaching its conclusions. For the following
reasons, the probate court’s judgment is affirmed in part and reversed in part.
I. Facts and Procedural History
{¶ 2} Mary Joan Layne was the mother of Derf D. Edsell and Bambi L. Grissom.
Plaintiffs-appellees Jennifer Layne Grissom Curtis, Elizabeth Nichole Yearsley, and
James Christopher Grissom are Grissom’s children (collectively, “the Grandchildren”).
{¶ 3} On December 12, 2012, Layne created a revocable trust named The Mary
Joan Layne Family Trust. Layne transferred her residential property located at 1521
Langdon Drive in Centerville, as well as her personal property, into the trust. The terms
of the trust established Layne as the initial trustee and beneficiary.
{¶ 4} Layne died on January 27, 2021, making the trust irrevocable. Grissom died
approximately six weeks later on March 11, 2021, at the age of 67. Defendant-appellee
William House was appointed as successor trustee on August 9, 2021, and is the current
acting successor trustee of the trust. After Layne and Grissom’s deaths, a dispute arose
between Edsell and the Grandchildren regarding his ability to sell the residential property,
for which he was granted a life estate under the trust. The Grandchildren also
challenged House’s ability to serve as successor trustee.
{¶ 5} On February 24, 2023, the Grandchildren filed a declaratory judgment action
in the probate court, seeking an interpretation of the trust agreement. They alleged that
their uncle had “expressly claimed that pursuant to the terms of the Mary Joan Layne
Family Trust he has the right, despite the fact that he only holds a life estate in real estate -3-
owned by Mary Joan Layne during her lifetime, to sell the entire fee simple value of the
real estate in any fashion, for any amount of money, regardless of the rights of additional
beneficiaries.” Complaint, ¶ 10.
{¶ 6} The Grandchildren requested a declaration regarding the proper
interpretation of the trust in several respects, including that: (1) Edsell had no right to sell
the real estate in which he held a life estate without their participation and only upon terms
equaling the fair market value of the property; (2) he had “no power individually to sell
property”; (3) a national bank or trust company must be a successor trustee; (4) the
Grandchildren had succeeded to Grissom’s rights under trust; (5) Edsell had a duty to
pay property taxes and insurance premiums on the real estate from his personal funds;
(6) the trustee had no duty to continue to pay and maintain a life insurance policy on
Edsell’s life; and (7) the trustee had a duty to gather and liquidate all financial assets.
The Grandchildren also asked for “further relief in terms of distribution of all assets, and
all other items associated with” the trust, plus attorney fees, interest, and costs. They
attached to their complaint copies of the trust agreement and a corrective quit-claim deed,
which transferred the real estate into the trust.
{¶ 7} Edsell denied the allegations and counterclaimed for a declaratory judgment
with different interpretations of the trust. With respect to the Grandchildren, he asked
the court to declare that they were not beneficiaries of the trust and that he owed “no
fiduciary duty whatsoever to [the Grandchildren], regardless of whether [they were]
entitled to a portion of the Real Estate.” As to the real estate itself, he sought
declarations that: (1) he was “authorized to dispose of the Real Estate upon any terms, -4-
at any price and to any person, including himself, with or without the consent of [the
Grandchildren]”; (2) he had “no duty to sell the Real Estate pursuant to any terms other
than those to be determined by [him], in his absolute discretion; and (3) the trustee “must
comply with the disposition of the Real Estate, pursuant to the terms dictated by [Edsell.]”
Edsell attached the trust agreement, as well as copies of Layne’s death certificate and
Grissom’s obituary. The Grandchildren filed an answer to the counterclaims asking that
they be dismissed.
{¶ 8} House, who was sued in his capacity as successor trustee, filed an answer
to the Grandchildren’s complaint, denying the allegations and asking that the
Grandchildren’s complaint be dismissed. House stated, among his defenses, that they
were not beneficiaries of the trust and lacked standing to assert their claims.
{¶ 9} Edsell subsequently sought judgment on the pleadings on his counterclaims.
The Grandchildren responded with a motion for summary judgment, which was supported
by an affidavit from Attorney Richard Boucher, the drafter of the trust agreement.
{¶ 10} In ruling on the motions, the probate court indicated that it “did not rely on
the affidavit because trust construction was manageable within the four (4) corners of the
document.” The court noted, however, that had it done so, the affidavit would have been
credible and would have “carr[ied] heavy weight on summary judgment.”
{¶ 11} As for the disputed issues, the court construed Section 2.9 of the trust to
permit Edsell to “choose if and when the life estate in the real property would be sold, with
net proceeds to be placed in Trust to be administered by the Successor Trustee.” Edsell
was required to pay all maintenance on the property, including upkeep, repairs, property -5-
taxes, insurance, and related expenses. The court rejected Edsell’s interpretation that
he could sell the property to himself at any price he dictated. Rather, the probate court
stated
The Court does not see provisions that permit Derf to trump the Successor
Trustee (who has fiduciary/trustee obligations to others, besides Derf), such
that Derf can simply sell the real property to himself at any price Derf
dictates. Additionally, Derf would not be able to sell/convey more than the
interest that has been granted to him. (i.e. nothing greater than a life
estate) The bottom line is that a trustee has numerous duties including
loyalty, impartiality, and prudent administration, among others. See [CITATION]. Derf cannot require the Successor Trustee to
shirk fiduciary duties and assume such liability. As such an interpretation
would be contrary to public policy.
Nov. 30, 2023 Decision, p. 9.
{¶ 12} The probate court further determined that the Grandchildren were vested
beneficiaries in the trust. It “construe[d] the status of the 1521 Langdon Drive property
and the Lane Trust as holding Bambi Grissom’s one-half remainder of the real property
in trust for the benefit of Plaintiffs and the other half for Derf Edsell, in trust.”
{¶ 13} As to the other issues raised in the complaint, the probate court declined to
remove House as successor trustee and found that the issue of whether a national bank
or trust company must serve as successor trustee was not ripe. The court further stated
that it could not opine on any hypothetical sale of the real estate by Edsell. Finally, the -6-
court declined to render an order related to the Grandchildren’s request for an order that
the successor trustee gather and liquidate financial assets; the court noted that no
evidence had been presented regarding these assets.
{¶ 14} Edsell appeals from the probate court’s judgment, raising four assignments
of error. We will address them in an order that facilitates our analysis.
{¶ 15} Prior to briefing, the Ohio Department of Medicaid (“ODM”) sought to
intervene in the appeal because Grissom, a vested trust beneficiary, had received
Medicaid assistance during her lifetime and ODM had an obligation to seek recovery of
those payments. We overruled the motion to intervene but permitted ODM to file an
amicus curiae brief.
[SEGMENT 2]
II. Relevant Legal Standards
{¶ 16} The parties’ dispute was before the probate court upon opposing claims for
declaratory judgment. Under R.C. 2721.05, any person with an equitable interest in a
trust may have a declaration of rights or legal relations to (1) “ascertain any class of
creditors, devisees, legatees, heirs, next of kin, or others;” (2) direct the trustees or other
fiduciaries to do or abstain from doing any particular act in their fiduciary capacity; and/or
(3) determine any question arising in the administration of the trust, including questions
of construction of the trust document or other writings. See R.C. 2721.05.
{¶ 17} The probate court granted the Grandchildren’s summary judgment motion.
Under Civ.R. 56(C), summary judgment may be granted when the moving party
demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds can come to but one -7-
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. [CITATION]. Appellate review
of summary judgment is de novo. [CITATION].
{¶ 18} The probate court denied Edsell’s Civ.R. 12(C) motion for judgment on the
pleadings. “Unlike a Civ.R. 56 motion for summary judgment, which authorizes the court
to evaluate evidentiary materials submitted for their probative worth, Civ.R. 12(C)
imposes a structural test: whether on their face the pleadings foreclose the relief
requested.” [CITATION]. “Determination of a motion for judgment on the pleadings is
restricted solely to the allegations in the pleadings and any writings attached to the
complaint.” [CITATION]. Because a motion for judgment on the
pleadings presents only questions of law, our review is de novo. [CITATION].
III. Consideration of Extrinsic Evidence
{¶ 19} In his first assignment of error, Edsell claims that the probate court erred by
weighing the credibility of the extrinsic evidence without making a finding of ambiguity in
the terms of the trust. Edsell argues that while the probate court claimed to consider only
the trust agreement itself, it repeatedly noted that Boucher’s affidavit supported its
conclusions. Edsell thus asserts that the probate court improperly considered extrinsic
evidence without finding any ambiguity in the agreement. -8-
{¶ 20} The determination of the meaning of provisions of a trust, including whether
individuals are beneficiaries under the trust, is a question of law. [CITATION] (“Issues concerning
the interpretation of the provisions of the trust, such as whether an individual is a
beneficiary . . . , clearly fall within the province of the court.”), citing [CITATION].
{¶ 21} When interpreting a trust, we follow the same principles that apply when
interpreting contracts. [CITATION]. Our purpose when examining a trust is to give
effect to the settlor’s intent, which is presumed to reside in the terms of the trust
agreement. See id.; [CITATION]. (“A court’s purpose in interpreting a trust is to effectuate, within the legal
parameters established by a court or by statute, the settlor’s intent.”). When a trust is
unambiguous, we derive its meaning from its language alone, without regard to extrinsic
evidence. See [CITATION].
{¶ 22} In this case, the probate court found that the meaning of the Mary Joan
Layne Family Trust could be determined from the language of the trust itself, without
resorting to extrinsic evidence (namely Boucher’s affidavit). The court’s analysis further
reflects that it did not improperly consider extrinsic evidence to interpret what it found to
be an unambiguous document. Although the probate court noted that Boucher’s affidavit
supported its conclusions, it referenced the affidavit as alternative reasoning in the event
that an appellate court determined that the trust agreement was ambiguous. There is no
indication that the court’s interpretation of the trust language was based on evidence -9-
outside the four corners of the document.
{¶ 23} Edsell’s first assignment of error is overruled.
IV. Edsell’s Right to Sell Langdon Property
{¶ 24} Edsell’s fourth assignment of error states that the probate court “erred by
limiting the power of sale granted to [him] in Section 2.9 of the trust.” He contends that
the trust agreement conferred two things upon him: (1) a life estate in the Langdon Drive
property, and (2) unrestricted power of sale over the entire property, not just the life estate.
{¶ 25} Section 2.9 reads:
Successor Trustee shall immediately transfer, convey, and deliver a life
estate in and to the real estate commonly known as and located at 1521
Langdon Drive, Centerville, Montgomery County, Ohio 45459 to Grantor’s
son, DERF D. EDSELL, to have and to hold for and during the term of his
life. DERF D. EDSELL shall pay all charges incident in maintaining said
real estate including, without limitation, (1) upkeep; (2) maintenance; (3)
repairs; (4) assessments; (5) insurance premiums; (6) taxes and/or any
other expenses and/or maintenance necessary to prevent any waste or
deterioration to or of said real estate. Successor Trustee shall authorize
Grantor’s son, DERF D. EDSELL, in his absolute discretion to sell said real
estate at such time, at such price, to such person and upon such terms,
including credit, as he shall deem advisable. In the event of a sale of said
real estate by Grantor’s son, DERF D. EDSELL, the net proceeds thereof
shall be held and administered by Successor Trustee as hereinbelow set -10-
forth. In the event Grantor’s son, DERF D. EDSELL, elects not to exercise
a life estate, elects to terminate his the [sic] life estate; [sic] does not elect
to sell the real estate during his lifetime, or upon the death of Grantor’s son,
DERF D. EDSELL, the rest, residue and remainder of the real estate
commonly known as and located at 1521 Langdon Drive, Centerville,
Montgomery County, Ohio 45459 shall be held and administered by the
Successor Trustee as hereinbelow set forth.
(Emphasis added.)
[CITATION] It is undisputed that Section 2.9 granted Edsell a life estate in the Langdon
Drive property upon Layne’s death. As correctly stated by the probate court, upon
obtaining the life estate, Edsell became responsible for maintaining the physical condition
of the property, as well as paying for assessments, insurance premiums, taxes “and/or
any other expenses and/or maintenance necessary to prevent any waste or deterioration
to or of said real estate.”
[CITATION] Section 2.9 next instructed the successor trustee to authorize Edsell, “in his
absolute discretion to sell said real estate at such time, at such price, to such person and
upon such terms, including credit, as he shall deem advisable.” If Edsell sold the
property, the successor trustee had the responsibility to distribute the net proceeds as
directed in Sections 2.10 to 2.19. Section 2.9 also identified other circumstances that
terminate the life estate. If any of those occurred, the successor trustee again was
responsible for administering the remainder interests in accordance with Sections 2.10 to
2.19. -11-
{¶ 28} Edsell asserts that Section 2.9 granted him unfettered discretion to sell the
Langdon Drive property, in fee simple. We agree that the trust permitted him to sell the
entire real estate. Section 2.9 granted Edsell a life estate with the power of sale.
Accord [CITATION]. Nothing in the plain language of Section 2.9 limited Edsell’s power to sell to
only his life estate.
{¶ 29} Nearly 165 years ago, the Ohio Supreme Court interpreted a power of sale
provision in a will as authorizing the sale of the entire fee, not just a life estate interest.
[CITATION]. The Supreme Court explained:
The testator, in one clause of his will, devises all his property, real or
personal, which may remain after the payment of his debts, to his wife, with
full power to have and to hold, to sell and convey the same, during her
natural life. In the next clause he gives a legacy of $100, to be paid after
the death of his wife, out of any moneys or effects of his estate that may
then remain. We think that by the first clause the wife is to have power to
sell and convey the property, and not a mere life estate in that property.
The first object of the bounty of the testator was his wife, and should she
require it during her life, his whole estate, after the payment of debts, was
placed at her disposition, not merely to have and to hold, but to sell and
convey. The nature of the property may have been such, that the only
beneficial use would arise from a sale and conveyance. The payment of
[SEGMENT 3]
the legacy is postponed until the death of his wife, and is then conditional. -12-
It is to be paid out of any moneys or effects of his estate that may then
remain. If the wants of the wife, during her life, exhausted the property, the
payment of the legacy could not be made. If there remained, at the death
of the wife, any money or effects devised under the will, a trust would attach
to them for the payment of the legacy. This view, we think, gives effect to
each clause of the will, and shows that [the wife] had power, during her life,
to sell and convey the land, not merely for her life, but in fee.
[CITATION] at 280-281.
{¶ 30} Section 2.9 differs significantly from the will in [CITATION] regarding the
disposition of sale proceeds and the remainder interests in the real property.
Nevertheless, [CITATION] supports a conclusion that the Layne Family Trust could give Edsell
a life estate with the authority to sell the entire real estate, not just his life estate interest.
Here, the plain language of Section 2.9 reflected an intention that Edsell have the
authority to sell the entire Langdon Drive property, with proceeds to be split between him
and his sister as directed by Sections 2.10 to 2.19. Accordingly, the probate court erred
in interpreting Section 2.9 of the Mary Joan Layne Family Trust as limiting Edsell to selling
only his life estate interest in the Langdon Drive property.
{¶ 31} Edsell’s power to sell is not unlimited, however. Section 2.9 authorizes
Edsell to sell the Langdon Drive property; it does not authorize Edsell to dispose of the
real estate under terms that would constitute a gift. See, e.g., [CITATION] at paragraph two
of the syllabus; [CITATION], 82 N.E.2d 140, 142-143 (2d Dist. 1948) (where a will
gave a life tenant “full power and authority to sell and convey any part of all of said real -13-
estate and personal property at any time during his natural lifetime in such manner as he
may desire,” the will did not authorize the life tenant to convey the property by gift); [CITATION], ¶ 11 (3d Dist.) (husband’s will granted widow a life estate with
power of disposition, but not by gift). Moreover, “a person who receives a life estate in
real property with a power to sell is ‘by implication, a quasi trustee for those in
remainder.’ ” [CITATION] at ¶ 12, quoting [CITATION] at paragraph two of the syllabus.
Consequently, the life tenant with power of sale cannot “go beyond what would be
regarded as good faith towards the remainder-men.” [CITATION] at 461. However, we
read nothing in Section 2.9 to suggest that Edsell would be required to consult with the
Grandchildren or the successor trustee regarding the terms of any proposed sale, as the
Grandchildren asserted in their complaint.
{¶ 32} Edsell’s fourth assignment of error is overruled in part and sustained in part.
V. The Grandchildren’s Status as Beneficiaries
{¶ 33} Edsell’s second and third assignments of error concern whether the
Grandchildren are beneficiaries of the trust. He first claims that the probate court erred
in interpreting the trust such that it caused the interest of a vested beneficiary (Grissom)
to lapse. He next asserts that the probate court erred by declaring the Grandchildren to
be vested beneficiaries of the trust.
{¶ 34} In their appellate brief, the Grandchildren claim that Edsell lacks standing
to argue that Grissom’s interest passed to her estate rather than her children. However,
Edsell’s argument does not assert a claim on Grissom’s estate’s behalf. Rather, he -14-
contends that the Grandchildren themselves cannot challenge his interpretation of the
trust because Grissom’s interest in the trust had passed to her estate and not to them.
Whether the Grandchildren are beneficiaries is properly before us.
A. Ohio’s Trust Anti-lapse Statute
{¶ 35} We begin with R.C. 5808.19, the trust anti-lapse statute, which is applicable
to all trusts that become irrevocable on or after March 22, 2012. “A significant impetus
for Ohio’s new trusts antilapse statute was a desire to make lapse and antilapse rules
that had long been applicable to wills also apply to revocable trusts, particularly since
revocable trusts are so commonly used as substitutes for wills. New § 5808.19,
however, is not limited to revocable trusts, but also applies to irrevocable trusts.”
[CITATION]
{¶ 36} R.C. 5808.19(B) sets forth two rules governing future interests under the
terms of a trust, unless a contrary intent appears in the instrument creating the trust. See
R.C. 5808.19(B)(2). First, a future interest under the terms of a trust is contingent on the
beneficiary surviving the distribution date by at least 120 hours. R.C. 5808.19(B)(2)(a).
“In effect, new § 5808.19 converts what was a vested remainder under prior law (subject,
in the case of a revocable trust, to divestment by the settlor’s exercise of the reserved
power to revoke or amend) to a contingent remainder conditioned on the beneficiary
surviving the distribution date by at least 120 hours.” [CITATION] Second, if the beneficiary of the future interest does not survive the distribution date by
120 hours and the relationship between the beneficiary and the transferor meets certain -15-
criteria, the statute sets forth substitute beneficiaries. R.C. 5808.19(B)(2)(b).
{¶ 37} R.C. 5808.19(A)(6) defines a “future interest under the terms of a trust” to
mean “a future interest that was created by a transfer creating a trust or a transfer to an
existing trust, or by an exercise of a power of appointment to an existing trust, that directs
the continuance of an existing trust, designates a beneficiary of an existing trust, or
creates a trust.” In this case, the “transferor” means the settlor/grantor, Layne. See
R.C. 5808.19(A)(10)(c). “Beneficiary” means “the beneficiary of a future interest and
includes a class member if the future interest is in the form of a class gift.” R.C.
5808.19(A)(1).
{¶ 38} The term “distribution date” means “the time when the future interest is to
take effect in possession or enjoyment.” R.C. 5808.19(A)(4). For an immediate gift
under a trust, the distribution date is the time of the grantor’s death. See Restatement
(Third) of Property (Wills & Don. Trans.) § 15.1 (2011). In contrast, “[t]he typical
postponed class gift takes effect on the termination of a preceding life estate or a lifetime
income interest in a trust.” Id.
{¶ 39} In its appellate brief, ODM quotes Example 7 from Alan Newman’s article
discussing R.C. 5808.19. That example states: “S created a revocable trust for S for life.
The trust instrument provided that at S’s death, the assets remaining in the trust were to
be distributed to R. Thus, the date of S’s death would be the ‘distribution date’ under the
statute (because that is when R’s future interest would take effect in possession or
enjoyment). Unless the instrument expresses a contrary intent, R’s future interest is
contingent on R surviving S by at least 120 hours. If R does not do so, R’s future interest -16-
fails.” [CITATION]. Example 7 illustrates the effect of R.C.
5808.19(B) on an immediate gift.
{¶ 40} We also find Example 8 to be relevant. It states: “O created a revocable
trust for O for life; then for O’s spouse, S, for S’s life; with the remainder to be distributed
at S’s death to O’s child, C. O died, survived by S and C. Unless the instrument
expresses a contrary intent, C’s future interest is contingent on C surviving S’s death (the
distribution date) by at least 120 hours. If C does not do so, C’s future interest fails.”
Example 8 illustrates the effect of R.C. 5808.19 where there is an immediate gift (S’s life
estate) and a postponed gift (C’s remainder interest).
B. Application to the Terms of the Mary Joan Layne Family Trust
{¶ 41} Section 2 of the Mary Joan Layne Family Trust governed the disposition of
the trust estate upon Layne’s death. Sections 2.1 to 2.8 required the immediate
distribution of specific gifts to Edsell and Grissom. Specifically, upon Layne’s death,
Edsell was to receive oil lamps (2.1), the Hibel picture of a boy (2.4), a Movado watch
(2.5), a surround sound and cabinet (2.6), a grandfather clock (2.7), and a Panasonic
[SEGMENT 4]
television (2.8). Grissom was to receive the Hibel cookbook (2.2) and Hibel picture of a
girl (2.3). Section 2.9, quoted above, addressed the disposition of the Langdon Drive
property.
{¶ 42} Section 2.10 provided that the “rest, residue and remainder of the Trust
Estate, whether the same be real, personal, or mixed,” was to be held and administered
by the successor trustee for the use and benefit of Edsell and Grissom in accordance with
the provisions that followed. In the context of wills, the phrase “rest, residue and -17-
remainder” generally indicates a residuary clause, “that is, a clause which disposes of
that part of the testator’s estate which has not been specifically devised and bequeathed
previously.” [CITATION]. Sections
2.11 to 2.19 set forth the procedures for administering the residue of Layne’s trust estate.
. The Residual Trust Estate
{¶ 43} To resolve whether the Grandchildren were beneficiaries under the trust,
we focus first on Sections 2.11 to 2.13 and Sections 2.17 to 2.18. They state:
.11 Successor Trustee shall immediately divide the Trust Estate into two
(2) equal shares. Each share shall constitute and be held, administered
and distributed by the Successor Trustee as a separate trust.
.12 One equal share shall be set aside for the benefit of each of Grantor’s
children, who may then be living and shall then constitute the Trust Estate
of each such child’s trust.
.13 One equal share shall be set aside for the benefit of the issue of each
deceased child of Grantor then living, per stirpes and not per capita, and
shall constitute the Trust Estate of the trust for such issue.
...
.17 When each child of Grantor attains the age of sixty-five (65) years, the
Successor Trustee shall distribute to such child all of his or her share of the
Trust Estate.
.18 If any child for whom share of the Trust Estate has been set aside
should die prior to attaining the age of sixty-five (65) years, then on the -18-
death of such child the Successor Trustee shall distribute all of the balance
of such deceased child’s Trust Estate to his issue then living, per stirpes
and not per capita. . . .
{¶ 44} These terms were clear and unambiguous. When Layne created the Mary
Joan Layne Family Trust, her children were given a future interest in the trust property.
Upon Layne’s death, the “rest, residue and remainder” of the trust estate was to be divided
immediately into two equal shares, which would then constitute two separate trusts (2.11).
If Edsell and/or Grissom were alive, they would get one of those shares (2.12), and the
successor trustee was to use the two separate trusts for their benefit (see 2.14, 2.15,
2.16). However, if either Edsell or Grissom were deceased when Layne died, that
deceased child’s share would go to that child’s issue per stirpes (2.13). The time of
Layne’s death was the “distribution date” for purposes of the immediate gifts in Layne’s
trust estate.
{¶ 45} In this case, both Edsell and Grissom were alive when Layne died.
Although Grissom died a matter of weeks after Layne, it was beyond the 120 hours (five
days) provided for in R.C. 5808.19, the trust anti-lapse statute, rendering Section 2.13
inapplicable. Accordingly, Edsell and Grissom each were to receive one-half of Layne’s
residual estate, held in a separate trust for each of their benefits.
{¶ 46} Sections 2.17 and 2.18 then addressed when their respective trusts were
to be distributed to them. Section 2.17 required distribution of the children’s (Edsell’s or
Grissom’s) trust estates upon reaching the age of 65. Grissom was alive and over the
age of 65 following Layne’s death. Accordingly, she was entitled to receive a full -19-
distribution of her share of the residual trust estate prior to her death. Section 2.18, which
required the distribution of a deceased child’s trust estate to that child’s issue, applied
only if Edsell or Grissom died more than 120 hours after Layne but prior to turning 65
years old. Because Grissom had attained the age of 65, Section 2.18 was not applicable
to her.
{¶ 47} The trust agreement was thus clear that the Grandchildren were not
beneficiaries of the trust that was created for Grissom upon the division of the Mary Joan
Layne Family Trust into two separate trusts. Regardless of whether the successor
trustee complied with his obligations under Layne’s trust, the plain language of the trust
reflected that, after the division of Layne’s residual trust estate into two separate trusts
for Grissom and Edsell, Grissom’s share should have been distributed to her and no
longer held in trust.
{¶ 48} To the extent that the probate court concluded that the Grandchildren were
to receive, in trust, Grissom’s share of Layne’s residual trust estate should Grissom “not
survive the full Trust administration,” that interpretation was contrary to the plain language
of the trust. Again, the Grandchildren were to receive Grissom’s share in trust only if
Grissom predeceased Layne or did not survive Layne by 120 hours. Upon Grissom’s
death, her share of Layne’s residual trust estate was subject to distribution through testate
or intestate succession.
. The Remainder Interests in the Langdon Property
{¶ 49} The question still remains whether the remainder interests in the life estate
were to be addressed in the same manner as Layne’s residual trust estate. To resolve -20-
this issue, we look to Section 2.9 and the trust anti-lapse statute.
{¶ 50} Section 1 of the Mary Joan Layne Family Trust gave Layne control over the
trust estate, including the Langdon Drive property, during her lifetime. Under the plain
language of Section 2.9, Layne’s death triggered the creation of Edsell’s life estate and
the remainder interests in the Langdon Drive property. The distribution date for Edsell’s
life estate was the time of Layne’s death, and Edsell vested in the life tenancy upon
surviving Layne by at least 120 hours.
{¶ 51} Section 2.9 set forth a specific disposition of the Langdon Drive property,
but it provided that the remainder of the Langdon Drive property should be addressed in
the same manner as Layne’s residual estate. Under Sections 2.11 and 2.12, having
survived Layne by 120 hours, Edsell and Grissom each received a remainder interest in
the Langdon Drive property following Layne’s death. Due to R.C. 5808.19(B)(2)(a), a
remainder interest in real estate is contingent on a beneficiary surviving the distribution
date by at least 120 hours. As illustrated in Newman’s Example 8, the distribution date
for the remainder interest in a life estate is the termination of the life estate, not the death
of the grantor. Accordingly, Edsell and Grissom each obtained a remainder interest in
the Langdon Drive property, contingent upon surviving until the termination of the life
estate. Because Grissom was more than 65 years old, the successor trustee was further
required to distribute the contingent remainder interest to her. Consequently, the
contingent remainder interest no longer should have been held by the successor trustee
in trust for her benefit.
{¶ 52} At this point, Grissom was in the same posture as if Layne had simply -21-
granted a life estate to Edsell with a remainder interest to her. Nevertheless, during the
final weeks of her life, Grisson continued to be a beneficiary of a future interest under the
terms of a trust (the remainder interest created by the Mary Joan Layne Family Trust)
with respect to the Langdon Drive property.
{¶ 53} Because Grissom is now deceased, she necessarily will not survive the
distribution date (the termination of the life estate) by 120 hours. However, [CITATION]
provides, in relevant part:
(b) If a beneficiary of a future interest under the terms of a trust does not
survive the distribution date by at least one hundred twenty hours and if the
beneficiary is . . . a descendant of a grandparent of the transferor, either of
the following applies:
(i) If the future interest is not in the form of a class gift and the deceased
beneficiary leaves surviving descendants, a substitute gift is created in the
beneficiary’s surviving descendants. The surviving descendants take, per
stirpes, the property to which the beneficiary would have been entitled had
the beneficiary survived the distribution date by at least one hundred twenty
hours.
“Surviving descendants” are descendants who survive the distribution date by at least
120 days. [CITATION].
{¶ 54} Because Grissom’s contingent remainder interest will fail and Layne’s trust
[SEGMENT 5]
agreement did not provide for that circumstance, [CITATION] creates a
substitute gift in Grissom’s surviving descendants. Because the distribution date for the -22-
remainder interest in the Langdon Drive property has not yet occurred and it is uncertain
which of the Grandchildren will be a “surviving descendant” when it does, any interest
they now hold under R.C. 5808.19(B) is also contingent. Regardless, by operation R.C.
5808.19, the Grandchildren are substituted for Grissom as beneficiaries of her contingent
remainder interest in the Langdon Drive property.
{¶ 55} In arguing that the Grandchildren are not trust beneficiaries, Edsell relies on
[CITATION], which predates the enactment of the trust
anti-lapse statute. In that case, Hazel McCoy created an irrevocable trust and placed
her residential property into it. Under the terms of the trust agreement, Hazel’s son,
Robert, received a life estate in the property after she died. Upon his death, the
remainder of the estate was to be distributed under the terms of section 4.1(c) of the trust,
which read: “The rest and residue of the Trust Estate to Grantor’s children, namely,
ROBERT MELVIN McCOY, KEITH McCOY, and THELMA L. WITZLEB to be divided
among them equally or, if any of Grantor’s children have predeceased her, then the share
of such predeceased child shall be distributed to his or her issue, per stirpes.”
{¶ 56} After Robert died, Lisa Marie McCoy, both individually and as administrator
of Robert’s estate, brought a declaratory judgment action seeking, in part, an order that
she was Robert’s child and that she or Robert’s estate was entitled to receive a one-third
share of the trust assets, including the real estate. The probate court found in Lisa
Marie’s favor, concluding that Robert had obtained a one-third share of the trust estate
when he survived his mother and, as such, that he was entitled to a one-third share of all
the trust estate, including the real estate, when it was to be distributed after his death.
====== End of Document ====== -23-
On appeal, we agreed with the probate court, stating in part:
Here, paragraph 4.1(c) of the trust instrument granted Mrs. McCoy’s
three children – Keith, Thelma, and Robert – an equal one-third share
remainder interest in the trust estate. Thus, at the instant of creation of the
trust, Keith, Thelma and Robert obtained a vested equitable interest in the
remainder, subject to defeasance in whole or in part by the exercise of the
power to revoke or to modify. See [CITATION].
The trust was neither revoked nor amended during Mrs. McCoy’s lifetime.
Thus, at the time of Mrs. McCoy’s death, the children’s vested one-third
remainder interest became indefeasible.
Appellants argue that Robert did not predecease his mother and,
therefore, the phrase “then the share of such predeceased child shall be
distributed to his or his issue, per stirpes” does not apply and his estate
should receive no interest in the real property. We agree that because
Robert survived his mother, the phrase does not apply. However,
Appellants are incorrect that his estate cannot receive a share of the
remainder as a result. Remainders are descendible, devisable, and
alienable in the same manner as estates in possession. R.C. 2131.04; [CITATION].
The pivotal question, therefore, is whether Mrs. McCoy manifested -24-
an intent for the real estate at issue to be distributed only to those of Mrs.
McCoy’s children who survived after Robert’s death. Upon review of the
trust instrument, she did not. According to paragraph 4.1(b), upon Robert’s
death, the real estate was to be “distributed under the terms stated in
paragraph 4 .1c.” The only reasonable interpretation of this phrase is that,
upon Robert’s death, the real estate would become part of the remainder to
be distributed according to paragraph 4.1(c). As stated above, Robert had
a vested one-third remainder interest in the trust estate which was
descendible and devisable. Accordingly, although Robert was necessarily
deceased when the real estate was to be distributed, the trial court properly
concluded that his estate was entitled to a one-third share when it was
distributed under paragraph 4.1(c).
[CITATION] at ¶ 25-27.
{¶ 57} [CITATION]’s utility is affected by the subsequent enactment of R.C. 5808.19,
but it remains instructive in limited respects. Both Robert and Grissom were alive when
their mothers died but were deceased when questions arose about their remainder
interests in real property. Unlike Robert, Grissom did not obtain a vested remainder
interest in the real estate upon her mother’s (the grantor’s) death; rather, due to R.C.
5808.19, Grissom’s remainder interest was contingent upon surviving the termination of
the life estate. Nevertheless, the language of the trust in [CITATION] demonstrated an intent
for the creation of Robert’s remainder interest to occur when Robert survived his mother,
not when the life estate ended. The structure of Section 2.9 and the sections that follow -25-
reflect a similar intent.
{¶ 58} Edsell argues that [CITATION] stands for the proposition that, upon the death of
a vested trust beneficiary, the trust interest of that beneficiary passes to the beneficiary’s
estate. This case is factually distinguishable, as [CITATION] held only a contingent
remainder interest, not a vested remainder interest, in the real estate. We recognize that
remainders, whether vested or contingent, generally are descendible, devisable, and
alienable in the same manner as estates in possession. R.C. 2131.04. However,
Ohio’s trust anti-lapse statute now addresses the disposition of a contingent future
interest under the terms of a trust where the beneficiary does not survive the distribution
date. [CITATION] does not control the circumstance before us. Rather, under R.C. 5808.19,
the Grandchildren are substituted for [CITATION] as contingent remainder beneficiaries and,
consequently, the remainder interest does not pass through [CITATION]’s estate.
{¶ 59} In summary, because the Grandchildren have contingent remainder
interests in the Langdon Drive property, we agree with the probate court that they are
beneficiaries of the Mary Joan Layne Family Trust. The probate court erred, however,
in concluding that the Grandchildren were vested beneficiaries. Accordingly, Edsell’s
second and third assignments of error are overruled in part and sustained in part.
VI. Conclusion
{¶ 60} The probate court’s judgment will be affirmed in part and reversed in part.
.............
WELBAUM, J. and LEWIS, J., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
CARTHAGENIA WYATT :
INDIVIDUALLY :
AS ADMINISTRATOR OF THE : C.A. No. 2024-CA-3
ESTATE OF DELTINA GRAVES :
: Trial Court Case No. 22CV0289
Appellants :
: (Civil Appeal from Common Pleas
v. : Court)
:
CITY OF SPRINGFIELD OHIO, ET AL. :
Appellees
...........
OPINION
Rendered on August 30, 2024
...........
ROBERT L. GRESHAM, Attorney for Appellant
KAITLIN L. MADIGAN, Attorney for Appellee
.............
TUCKER, J.
{¶ 1} Carthagenia Wyatt appeals, individually and as administrator of the estate of
Deltina Graves, from an adverse summary-judgment ruling on a complaint alleging -2-
wrongful death and other causes of action against the City of Springfield and two
emergency medical technicians (EMTs). The appellants also include four individuals who
were the decedent’s next of kin.
{¶ 2} The appellants advance five assignments of error. First, they contend
summary judgment was improper because the record contained evidence rebutting a
coroner’s cause-of-death determination. Second, they challenge the trial court’s
determination that the appellees were entitled to statutory immunity. Third, they claim the
record revealed a genuine issue of material fact as to whether the EMTs engaged in
willful, wanton, or malicious misconduct. Fourth, they challenge the trial court’s denial of
their motion for leave to file expert disclosures. Fifth, they argue that the trial court erred
in denying them leave to file a supplemental memorandum opposing summary judgment.
{¶ 3} We find the trial court’s immunity determination to be dispositive of this
appeal. The trial court correctly found the appellees—two EMTs and the City of
Springfield—immune from liability because the EMTs did not engage in willful or wanton
misconduct as a matter of law. Accordingly, the trial court’s judgment will be affirmed.
[SEGMENT 6]
I. Background
{¶ 4} The present appeal stems from the death of Deltina Graves. The appellants
contend she died at a local hospital as a result of being “dropped on her head” during a
medical transport by Springfield EMTs Scott Kaufman and Cory Scanlan. Following the
incident, the appellants filed a complaint against the EMTs and the City of Springfield
alleging wrongful death and nine other tort causes of action. Following some discovery,
the appellees moved for summary judgment arguing, among other things, that they were -3-
entitled to statutory immunity. The trial court sustained the motion for several reasons.
First, it found no evidence to rebut a coroner’s determination that Graves’ cause of death
was an “acute atraumatic intracranial hemorrhage,” meaning that the hemorrhage was
not caused by any head trauma. Second, it reasoned that the EMTs and the City of
Springfield statutorily were immune from liability. Third, if found that wrongful-death and
survivorship claims needed to be brought in the name of the decedent’s personal
representative and that any such individual claims failed for lack of standing. Fourth, it
concluded that the facts did not support emotional-distress claims. Fifth, it found no
evidence of willful, wanton, or malicious misconduct by the EMTs. This appeal followed.
II. Immunity and Willful or Wanton Misconduct
{¶ 5} We begin our analysis with the appellants’ second and third assignments of
error, which state:
II. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT
APPELLEES ARE ENTITLED TO IMMUNITY.
III. THE TRIAL COURT ERRED IN FINDING THAT INSUFFICIENT
EVIDENCE HAS BEEN PRESENTED TO SUPPORT A CLAIM OF
WILLFUL, WANTON, AND MALICIOUS MISCONDUCT.
{¶ 6} Relying on R.C. 2744.03, the appellants contend the record revealed a
genuine issue of material fact as to whether the EMTs who transported Graves to the
hospital acted willfully, wantonly, recklessly, or otherwise engaged in malicious
misconduct and whether their actions deviated from the standard of care and proximately
caused the decedent’s death. Therefore, the appellants assert that the trial court
====== -4-
improperly entered summary judgment against them.
{¶ 7} Under Civ.R. 56(C), summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. [CITATION].
{¶ 8} “In a summary judgment review, the court may not weigh the proof or choose
among reasonable inferences, and the court is limited to examining the evidence in the
light most favorable to the non-moving party.” [CITATION]. Significantly, however, “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” [CITATION]. “[B]ecause summary judgment is a
procedural device to terminate litigation, it must be awarded with caution. Doubts must
be resolved in favor of the non-moving party.” [CITATION]. Appellate review
of summary judgment is de novo. [CITATION].
{¶ 9} With the foregoing standards in mind, we conclude that the trial court properly
entered summary judgment for EMTs Kaufman and Scanlan and for the City of Springfield
based on statutory immunity. With regard to the EMTs, the trial court correctly looked to
R.C. 4765.49(A), which provides: “A first responder, emergency medical technician-basic, -5-
emergency medical technician-intermediate, or emergency medical technician-
paramedic is not liable in damages in a civil action for injury, death, or loss to person or
property resulting from the individual’s administration of emergency medical services,
unless the services are administered in a manner that constitutes willful or wanton
misconduct.”
{¶ 10} With regard to the City of Springfield, R.C. 2744.02(A)(1) provides political-
subdivision immunity for governmental functions, which include the provision of
emergency medical services. [CITATION], 2013-Ohio-989, ¶ 15. An exception is found in
R.C. 2744.02(B)(5), which applies “when civil liability is expressly imposed upon the political subdivision by a section of the Revised
Code.” In [CITATION], the Ohio Supreme Court held that R.C. 4765.49(B) expressly imposed
liability on a political subdivision under certain circumstances. Id. at ¶ 23. In particular,
R.C. 4765.49(B) states that a political subdivision providing emergency medical services
is not liable in damages in a civil action for injury, death, or loss” resulting from an EMT’s
actions “unless the services are provided in a manner that constitutes willful or wanton
misconduct.” Thus, where EMT services are provided in a manner that constitutes willful
or wanton misconduct, R.C. 4765.49(B) expressly imposes liability on a political
subdivision within the meaning of R.C. 2744.02(B)(5). [CITATION] at ¶ 23.
{¶ 11} Under R.C. 4765.49(A) and (B), then, appellees Kaufman, Scanlan, and the
City of Springfield all were immune from liability unless the EMTs administered services
to the decedent in a manner that constituted willful or wanton misconduct. After
conducting a de novo review, we agree with the trial court’s assessment that Kaufman -6-
and Scanlan did not do so as a matter of law. Construing the evidence and all reasonable
inferences in favor of the appellants, we see no genuine issue of material fact.
{¶ 12} “Willful misconduct implies an intentional deviation from a clear duty or from
a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to
safety, or purposefully doing wrongful acts with knowledge or appreciation of the
likelihood of resulting injury.” [CITATION]. Willful
misconduct effectively requires an intent to injure. [CITATION]. “Wanton misconduct is the failure to exercise any care toward
those to whom a duty of care is owed in circumstances in which there is a great probability
that harm will result.” [CITATION].
{¶ 13} In the present case, EMTs Kaufman and Scanlan were called to Graves’
residence where they found her in an upstairs bathroom. Family members reported that
Graves had been experiencing vomiting and diarrhea. She was sweaty, incoherent, and
unable to move her left side. The EMTs moved Graves outside and placed her on what
they referred to as “a cot.” The appellants’ strongest evidence with regard to the EMTs’
treatment of Graves from that point on came from Theresa Moore, a neighbor who
watched from her kitchen window across the street. In her deposition, Moore described
what she saw as follows:
Well, it was when they were sitting there, she—it was like [Graves]
had passed out, and it was like slow motion as she went off the side of the
gurney. And I literally scared my kids to death because I was standing there
going, oh, my God, catch her, catch her, catch her. And [Moore’s children] -7-
come flying like, what’s going on? And that’s when I seen her fall off that
gurney. And that’s—it was—there was no belt on her. If she would have had
a belt on, she would have never fell off that gurney.
Moore depo. at 43.
{¶ 14} When asked whether Graves fell “all the way” to the ground, Moore
responded that “there’s no way she didn’t.” [CITATION]. Moore explained that she watched
Graves fall from the side of the cot as one of the EMTs “was looking up in the air looking
at the stars or something.” [CITATION]. That EMT then grabbed Graves’ feet and ankles, which
were the only thing remaining on the cot. [CITATION]. From her vantage point, Moore did not
actually see any part of Graves’ body hit the ground. Given that only Graves’ feet and
ankles remained on the cot, however, Moore opined that “there’s no way she didn’t” hit
the ground. [CITATION]. Based on the way Graves fell, Moore stated that it would have been
the left side of her head that would have struck the ground. [CITATION]. Finally, Moore
described what the EMT holding Graves’ feet and ankles did after she fell off the side of
the cot: “He just kind of looked—he kind of looked back at the house that sits straight
across the street from mine, * * * he kind of looked back there, and I felt like he looked
back there to see if anybody was watching. They never looked over toward my house.”
[CITATION].
{¶ 15} Upon being transported to Springfield Regional Medical Center, Graves
was diagnosed with a “subdural hematoma,” or bleeding on the brain, on the left side of
[SEGMENT 7]
her head. In her deposition, Dr. Jenny Guest, the emergency-room physician, testified
that Graves’ symptoms inside the home before being moved by the EMTs were consistent -8-
with a subdural hematoma. Guest depo. at 19. Guest observed no external signs of head
trauma, which she typically would have expected to see if Graves had hit her head after
falling from a cot. [CITATION]. Guest acknowledged, however, that external signs do not
always accompany an internal head injury. [CITATION]. She also agreed that a blow to the
head due to a fall from a cot could cause symptoms like those Graves was experiencing
at the hospital. [CITATION]. Although the two EMTs did not report that Graves had fallen
from a cot, Dr. Guest was aware of the allegation. The neighbor, Moore, had told Graves’
mother about what she had seen, and Graves’ mother had advised the doctor. [CITATION].
{¶ 16} After receiving initial treatment at the hospital in Springfield, Graves was
transported by helicopter to Miami Valley Hospital, where she died. Following an autopsy,
a coroner identified the cause of death as an “acute atraumatic intracranial hemorrhage,
contributed to by hypertensive cardiovascular disease and complications of chronic
ethanol abuse.” (Emphasis added.)
{¶ 17} For their part, Kaufman and Scanlan denied that Graves fell off of the cot.
In their depositions, they described her “listing” to the side before they caught her, stopped
her from going any further, and repositioned her. [CITATION]. Both EMTs denied that Graves ever struck the ground. [CITATION]. Both EMTs stated that they had strapped Graves to the cot with all
the available straps (which only went to her torso) and that the cot’s partial railing (which
only went to her hips or waist) was up. [CITATION].
Although eyewitness Moore did not see any straps from her vantage point, the appellants
concede on appeal that the two EMTs did secure Graves with two straps—“one around -9-
her ankles, and the other around her midsection.” Appellants’ Brief at 8. They argue,
however, that the EMTs should have used more effective restraints known as “Spider
straps.”
{¶ 18} Having reviewed the record, we see nothing from which a trier of fact
reasonably could have found that Kaufman or Scanlon engaged in willful or wanton
misconduct toward Graves. Construing the evidence and all reasonable inferences in
favor of the appellants, a trier of fact reasonably could have inferred that Graves slid from
the cot despite the lower portion of her body being strapped and did strike her head on
the ground. While the appellees characterize such a conclusion as “speculation,” we
believe it is a fair inference that can be drawn from Moore’s testimony. A trier of fact also
could have inferred from Moore’s testimony that the EMTs were not paying close enough
attention when Graves slid from the cot. We see no basis, however, for finding that either
EMT engaged in willful or wanton misconduct toward Graves. With regard to the
appellants’ argument about the use of “Spider straps,” Kaufman acknowledged that they
should be used “if available.” [CITATION] at 26. But the cots his department used did
not have them available. [CITATION] at 26-28. For his part, Scanlan was not familiar with Spider
straps. [CITATION] at 42.
{¶ 19} Even if we were to find the first-responder/EMT immunity statute, R.C.
4765.49(A), inapplicable to Kaufman and Scanlan (despite its clear applicability) and
instead to apply the general immunity statute, R.C. 2744.03, summary judgment would
have been proper. Under R.C. 2744.03(A)(6)(b), which covers all political-subdivision
employees, an employee is immune unless he or she acted “with a malicious purpose, in -10-
bad faith, or in a wanton or reckless manner.”
{¶ 20} We fully addressed wanton misconduct in our analysis above. With regard
to the other standards, “malicious purpose” means a willful and intentional design to
injure. [CITATION], ¶ 16 (2d Dist.), quoting [CITATION], ¶ 42 (5th Dist.). “Bad faith” suggests a dishonest
purpose and conscious wrongdoing with ulterior motives or ill will. Id. We see no genuine
issue of material fact as to whether Kaufman or Scanlan acted with a malicious purpose
or in bad faith toward Graves. Nothing in the record supported such a conclusion.
{¶ 21} The only remaining standard under R.C. 2744.03(A)(6)(b) is “reckless”
conduct. Such conduct “is characterized by the conscious disregard of or indifference to
a known or obvious risk of harm to another that is unreasonable under the circumstances
and is substantially greater than negligent conduct.” [CITATION], ¶ 34. Recklessness requires a showing that the actor knew his or her conduct “in
all probability” would result in injury. [CITATION], ¶ 26 (2d Dist.).
Even showing recklessness is a “rigorous” threshold to meet. Id.
{¶ 22} We see nothing from which a trier of fact reasonably could have concluded
that Kaufman or Scanlan acted recklessly. The appellants complain about Graves not
being strapped above the waist, but nothing in the record suggests the availability of
additional straps. We note too that the EMTs provided uncontroverted testimony about
the cot’s partial side rails being up. The appellants also complain about the EMTs not
mentioning Graves’ fall to the emergency-room physician after the fact. But the physician,
Dr. Guest, promptly had been made aware of the allegation by Graves’ mother. At most, -11-
the record suggests that Kaufman and Scanlan were inattentive when Graves
unexpectedly slid from her cot. As a matter of law, this conduct could not have constituted
more than negligence.
{¶ 23} For all of the foregoing reasons, the trial court correctly entered summary
judgment in favor of Kaufman, Scanlan, and the City of Springfield based on statutory
immunity from liability. The appellants’ second and third assignments of error are
overruled.
III. Other Issues
{¶ 24} The appellants’ first, fourth, and fifth assignments of error state:
I. THE TRIAL COURT ERRED IN RULING THAT INSUFFICIENT
EVIDENCE HAS BEEN ESTABLISHED TO REBUT THE CORONER’S
CAUSE OF DEATH CONCLUSION.
IV. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
PLAINTIFF-APPELLANT’S MOTION FOR LEAVE TO FILE EXPERT
DISCLOSURE.
V. THE TRIAL COURT ERRED IN FAILING TO ISSUE A DECISION
REGARDING AND GRANT PLAINTIFF’S MOTION FOR LEAVE TO FILE
SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO MOTIONS FOR
SUMMARY JUDGMENT.
{¶ 25} In their first assignment of error, the appellants contend the record contains
evidence rebutting the coroner’s determination that Graves died from an “atraumatic”
subdural hematoma. The appellants contend a trier of fact reasonably could have found -12-
that the fatal hematoma was caused by trauma, namely Graves’ fall from the cot.
{¶ 26} In their fourth assignment of error, the appellants challenge the trial court’s
denial of their motion for leave to file expert disclosures to identify two medical doctors as
their experts. The appellants claim these experts would have provided important
testimony about the cause of Graves’ death being a hematoma that resulted from her fall
off of the cot.
{¶ 27} In their fifth assignment of error, the appellants contend the trial court erred
in denying them leave to file a supplemental memorandum opposing summary judgment.
The appellants explain that they desired to supplement their opposition with deposition
testimony from the appellees’ own medical expert regarding the cause of Graves’
hematoma.
{¶ 28} In light of our statutory-immunity determination above, we find the
appellants’ first, fourth, and fifth assignments of error to be moot. Each of these
assignments of error addresses the cause of Graves’ hematoma and whether it resulted
from her striking her head after falling from the cot. Even if we assume, however, that
Graves fell from the cot, struck her head, and died from a subdural hematoma caused by
the fall, the appellees would remain entitled to statutory immunity for the reasons set forth
above. Nothing in the appellants’ first, fourth, or fifth assignments of error has any bearing
on whether the appellants engaged in conduct that would deprive them of immunity.
Accordingly, we find those assignments of error to be moot and overrule them on that
basis.
IV. Conclusion -13-
{¶ 29} The judgment of the Clark County Common Pleas Court is affirmed.
.............
WELBAUM, J. and LEWIS, J., concur. Given there are no text content or obvious court ruling citations provided in the request, I can't apply the anonymization process. However, if there were court ruling citations present, the instruction would be applied to replace each identified citation appropriately as described. Please provide the text of court rulings for anonymization.
[SEGMENT 8]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
GEOFFREY SURBER :
:
Appellant : C.A. No. 2023-CA-17
:
v. : Trial Court Case No. 22-CV-00477
:
JUSTIN HINES, ET AL. : (Civil Appeal from Common Pleas
: Court)
Appellees :
:
...........
OPINION
Rendered on January 12, 2024
...........
NICOLE L. POHLMAN, Attorney for Appellant
KATHLEEN F. RYAN, Attorney for Appellees
.............
TUCKER, J.
{¶ 1} Geoffrey Surber appeals from the trial court’s entry of summary judgment
against him on a claim for injunctive relief and statutory damages against the Greenville
Township Board of Zoning Appeals (BZA).
{¶ 2} Surber contends genuine issues of material fact exist as to whether BZA
members violated R.C. 121.22, which is known as the Open Meetings Act (OMA) or the -2-
“Sunshine Law,” by privately discussing his appeal from zoning-violation notices
immediately before conducting a hearing.
{¶ 3} We conclude that the OMA did not apply because the BZA members’
discussion was part of an exempt quasi-judicial proceeding. Accordingly, the trial court’s
judgment will be affirmed.
I. Background
{¶ 4} Surber filed a November 2022 two-count complaint against the Greenville
Township Board of Trustees and its members, Greenville Township fiscal officer Susan
Miles, and the Greenville Township BZA. The complaint alleged that Surber had erected
three buildings on his property after obtaining zoning permits. The complaint further
alleged that a Greenville Township zoning inspector issued him zoning-violation notices
with respect to the buildings after their completion.
{¶ 5} According to the complaint, Surber appealed the violation notices to the BZA.
The complaint alleged that Greenville Township had denied his public-record requests
related to the issue. It further alleged that BZA members had met privately for an hour
immediately before hearing his appeal on October 28, 2021 “to discuss the facts and
circumstances surrounding Plaintiff’s appeal and to make a decision concerning [his]
property.” The complaint alleged that BZA members subsequently paused the hearing
before its completion and went into executive session “to discuss personnel.” According
to the complaint, BZA members departed and entered a private room.
{¶ 6} Count one of the complaint asserted four public-record violations by the
Greenville Township Board of Trustees and fiscal officer Miles. Surber sought a writ of -3-
mandamus to compel production of the records. He also requested damages and
attorney’s fees. Count two alleged that the Greenville Township BZA had violated the
OMA by conducting a “pre-hearing” private meeting immediately before hearing his
appeal on October 28, 2021 and by pausing the hearing to enter executive session.
Surber requested injunctive relief, a determination that the BZA’s denial of his appeal was
“invalid” under the OMA, statutory damages of $500, and attorney’s fees.
{¶ 7} In June 2023, the trial court dismissed Surber’s mandamus claim as moot
with regard to two of his four public-record requests, as those records eventually had
been provided. The trial court noted, however, that the issue of damages resulting from
the initial denial of the records remained unresolved. With regard to the other two public-
record requests, the trial court found the Board of Trustees and fiscal officer Miles entitled
to summary judgment. Finally, the trial court found the BZA entitled to summary judgment
on the OMA claim in count two, reasoning:
Viewing the evidence most strongly in Plaintiff’s favor, this Court
finds reasonable minds can only conclude the following: On October 28,
, the Greenville Township Zoning Board of Appeals was acting in a
quasi-judicial capacity when it was considering and deciding upon Plaintiff’s
appeal of the zoning violation issued by Defendant, Scott Peele. This entire
adjudicatory hearing process was not a “meeting” under Ohio’s Open
Meetings Act. Therefore, neither the meeting prior to the public hearing, nor
the executive session, violated the OMA.
[CITATION], Decision, Order, and Entry at 18. -4-
{¶ 8} Surber appealed from the trial court’s ruling. Noting that the damages issue
remained pending on his public-record claim, we issued a show-cause order questioning
whether an appealable order existed. In response, Surber noted that he subsequently
had dismissed count one and that the trial court had filed a dismissal entry. In a
September 29, 2023 ruling, we deemed our show-cause order satisfied.
II. Analysis
{¶ 9} In his sole assignment of error, Surber contends the trial court erred in finding
that BZA members were acting in a quasi-judicial capacity when they met privately and
discussed his case just before hearing his appeal. Surber concedes that public hearings
of the BZA are quasi-judicial and that deliberations occurring after such hearings are not
subject to the OMA. When the BZA members met before his hearing, however, he asserts
that they had not yet performed any quasi-judicial function and had nothing to deliberate.
He reasons that finding the pre-hearing meeting not subject to the OMA “would be akin
to finding that a jury could meet and discuss a case in private prior to hearing any
evidence on the record in a court of law.”
{¶ 10} Under Civ.R. 56(C), summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. [CITATION]. Appellate review of summary judgment is de
novo. [CITATION]. -5-
{¶ 11} Upon review, we see no error in the trial court’s entry of summary judgment
against Surber. An adjudicatory proceeding before a zoning appeals board is quasi-
judicial, and the OMA does not apply to board members’ deliberations in such a case.
[CITATION] The quasi-judicial nature of such a proceeding arises from board members’ exercise
of discretion and the need to provide notice and a hearing. [CITATION] Although the actual
hearing may be open to the public, a board performing a quasi-judicial function “requires
privacy to deliberate, i.e., to evaluate and resolve, the disputes.” [CITATION] “This privacy
frees the [board] from the open pressure of the litigants as it contemplates the case.
Privacy provides an opportunity for candid discussion between board members and staff
on the legal issues and the facts[.]” [CITATION] “For these reasons, the Sunshine Law does not
apply to adjudications of disputes in quasi-judicial proceedings.” [CITATION] In fact, “because a
quasi-judicial proceeding is not a meeting for purposes of R.C. 121.22, the Sunshine Law
is inapplicable from the outset.” [CITATION]
{¶ 12} Surber does not dispute the foregoing authority. He contends it is
inapplicable, however, because the Greenville Township BZA met privately before his
hearing. Surber concedes that the OMA does not apply to board deliberations after a
hearing. But where BZA members meet privately before a hearing, Surber reasons that
no quasi-judicial act has occurred, that the members have nothing to deliberate, and that
the OMA applies. As noted above, he analogizes to jurors improperly discussing a case -6-
before hearing evidence.
{¶ 13} We find Surber’s argument to be unpersuasive. In our view, the entire
proceeding before the BZA was quasi-judicial in nature. Surber’s appeal from the zoning-
violation notices entitled him to a hearing where he could present evidence to the BZA,
which exercised discretion in resolving the matter. Although the cases cited on appeal
involve deliberations occurring after a hearing, none of them hold that pre-hearing
deliberations in quasi-judicial proceedings are subject to the OMA. As set forth above,
deliberating encompasses both evaluating and resolving disputes. [CITATION].
It involves “candid discussion between board members * * * on the legal issues and the
facts[.]” [CITATION].
{¶ 14} Contrary to Surber’s argument, we see no legal impediment to the BZA
members conducting private, preliminary, pre-hearing deliberations to evaluate his case
and to discuss the issues in preparation for taking evidence. The entire proceeding before
the BZA was quasi-judicial in nature, and “the Sunshine Law [was] inapplicable from the
outset.” [CITATION]. Although Surber’s appellate brief does not specifically address the
BZA’s “executive session” during his hearing, the OMA would be equally inapplicable to
those private deliberations for the same reason. See, e.g., [CITATION], 2013-
[SEGMENT 9]
Ohio-722, ¶ 15 (“With respect to the zoning board’s recess into executive session to
discuss the application, there is no Open Meeting Act violation. The action of a board of
zoning appeals in reviewing an application for conditional use is a quasi-judicial function.
* * * The Sunshine Laws do not apply to deliberations on such applications.”) -7-
{¶ 15} Surber’s analogy to jury deliberations fails to persuade us otherwise. He
suggests that allowing the BZA members to meet privately before hearing his appeal is
akin to holding that jurors can discuss a case privately before hearing any evidence. Even
if we presume that the two situations are analogous, premature jury deliberations are still
deliberations. Similarly, even if the BZA members’ pre-hearing deliberations were
improper, they were still part of the quasi-judicial proceeding involving Surber’s appeal
from the zoning-violation notices. Assuming, arguendo, that the BZA members’ pre-
hearing deliberations violated procedural due process, Surber conceivably might have
grounds to invalidate the board’s decision through a direct appeal. But we see no OMA
violation. Compare [CITATION] (finding written pre-hearing deliberations permissible and
concluding that even if the communications were improper the remedy would be
invalidation of the board’s decision through an appeal, not compelled disclosure of the
internal, pre-decisional communications).1
{¶ 16} Surber may be correct in asserting that due-process violations and OMA
violations are not mutually exclusive. Construing the evidence and all reasonable
inferences in his favor, however, we simply see no genuine issue of material fact as to
whether the Greenville Township BZA violated the OMA. Consequently, the trial court
correctly entered summary judgment against him.
1 In [CITATION], the court rejected an “argument that Board members may not consider or
discuss the evidence in, or merits of, a proceeding on a conditional use application prior
to the close of hearings,” while also concluding that “even if the law did support such a
principle, this would not serve to transform deliberative, albeit impermissible under that
interpretation, communications into non-deliberative communications.” [CITATION] at 1215. -8-
{¶ 17} Based on the reasoning set forth above, Surber’s assignment of error is
overruled.
III. Conclusion
{¶ 18} The judgment of the Darke County Common Pleas Court is affirmed.
.............
LEWIS, J. and HUFFMAN, J., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
SHAWN D. SMITH, JR. :
:
Appellant : C.A. No. 29809
:
v. : Trial Court Case No. 2022 CV 00805
:
LAW OFFICE OF KAREN OAKLEY, : (Civil Appeal from Common Pleas
LLC, et al. : Court)
:
Appellees :
...........
OPINION
Rendered on October 20, 2023
...........
SHAWN D. SMITH, JR., Appellant, Pro Se
G. TODD HOFFPAUIR and GEORGE D. JONSON, Attorneys for Appellees
.............
TUCKER, J.
{¶ 1} Shawn D. Smith, Jr. appeals pro se from the trial court’s entry of summary
judgment against him on his legal-malpractice complaint against appellees Karen Oakley
and the Law Office of Karen Oakley, LLC.
{¶ 2} Smith’s complaint alleged legal malpractice based on attorney Oakley’s
handling of a federal petition for a writ of habeas corpus. On appeal, Smith contends the -2-
trial court erred in entering summary judgment against him where Oakley’s filing of the
petition beyond the statute of limitations and other deficiencies, including failure to object
to a federal magistrate’s report and recommendation, were so plainly prejudicial that he
did not need expert testimony to prove malpractice.
{¶ 3} We see no error in the trial court’s entry of summary judgment. Even
assuming, arguendo, that Oakley provided deficient representation by filing an untimely
petition and in other ways, Smith was not prejudiced because the substantive claims in
his petition for a writ of habeas corpus lacked merit. Accordingly, the trial court’s judgment
will be affirmed.
I. Background
{¶ 4} Smith received a sentence of 37 years to life in prison in 2017 for murder and
related crimes. On direct appeal to this court, he raised an issue under [CITATION]. He also challenged the
trial court’s exclusion of evidence about the victim’s reputation for violence as well as its
admission of other-acts evidence involving him. We rejected each argument and affirmed
in [CITATION]. We subsequently
affirmed the trial court’s dismissal of a post-conviction-relief petition in [CITATION].
{¶ 5} Smith then filed a petition for a writ of habeas corpus in federal court on
December 28, 2020. As grounds for relief, he raised the same arguments that we had
rejected on direct appeal. In a February 1, 2021 report and recommendation, a federal
magistrate found Smith’s petition barred by the applicable statute of limitations and -3-
recommended dismissal. Nevertheless, the magistrate also addressed the merits of
Smith’s arguments. The magistrate concluded that our rejection of the [CITATION] argument
on direct appeal was a reasonable application of [CITATION] and its progeny. With regard to
the exclusion of evidence about the victim’s reputation, the magistrate found the issue
procedurally defaulted because Smith had raised it on appeal as an evidentiary question
rather than a constitutional one. Even setting aside the default, the magistrate concluded
that the issue lacked merit in the absence of clearly established U.S. Supreme Court
authority holding that exclusion of such evidence violated federal due process. Finally,
with regard to other-acts evidence involving Smith, the magistrate found the issue
procedurally defaulted in multiple ways. Once again, the magistrate also rejected Smith’s
argument on the merits in the absence of clearly established U.S. Supreme Court
precedent requiring exclusion of the evidence. Smith filed no objections to the
magistrate’s report and recommendation, which a federal district court judge adopted on
February 26, 2021.
{¶ 6} On February 24, 2022, Smith filed a legal-malpractice complaint against
Oakley and her law office based on her handling of his habeas petition. The complaint
included causes of action for malpractice, unjust enrichment, and breach of contract. The
trial court dismissed the claims for unjust enrichment and breach of contract under Civ.R.
12(B)(6) because they restated the malpractice claim. Oakley and her law firm then
moved for summary judgment on the malpractice claim. The motion was supported with
affidavits from Oakley and attorney Keith E. Golden, who opined about Oakley’s
performance in handling the habeas petition. Following briefing, the trial court sustained -4-
the motion on May 2, 2023, reasoning in part:
Plaintiff has failed to file any Civ.R. 56 evidence in opposition to
Defendant’s Motion for Summary Judgment. Plaintiff asserts that no expert
evidence is needed because the legal malpractice of untimely filing the
Petition is clear. The U.S. Dist. Court for the Southern District of Ohio,
Western Division at Dayton, though, still addressed the merits of the Writ of
Habeas Corpus despite any alleged untimely filing. Mr. Golden stated that
Oakley acted as a reasonable attorney in all respects with regard to her
representation of Mr. Smith in the habeas corpus petition proceeding and
that Plaintiff did not proximately sustain any damages from Oakley’s
representation of him. Based on the uncontroverted evidence presented,
the Court finds that Defendants are entitled to summary judgment as prayed
for in their motion.
(Footnotes omitted.)
{¶ 7} This appeal followed.
II. Analysis
{¶ 8} Smith presents the following two assignments of error:
I. THE COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN
FAVOR OF THE DEFENDANTS ON THE LEGAL MALPRACTICE CLAIM.
II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
DID NOT CONSIDER A MATERIAL FACT BEFORE IT WHEN IT
RESOLVED THE CASE BY ENTRY. -5-
{¶ 9} In his first assignment of error, Smith contends the trial court erred in failing
to recognize that he was not required to present expert testimony to prove legal
malpractice. He maintains that no expert was required because Oakley’s malpractice was
so obvious that it could be determined by the trial court as a matter of law and that it was
within the ordinary knowledge and experience of a layman.
{¶ 10} Smith cites four acts by Oakley that he claims obviously breached her duty
of care and proximately caused him to suffer damage or harm. Those acts are (1) filing
his habeas petition outside of the statute of limitations, (2) failing to inform him of the
federal magistrate’s report and recommendation, (3) failing to file objections to the report
[SEGMENT 10]
and recommendation, and (4) failing to inform him of the federal district court’s adoption
of the report and recommendation in time to appeal. According to Smith, each of these
acts constituted obvious malpractice, rendering expert testimony on the issue
unnecessary. He argues that Oakley’s actions prevented him from fully pursuing habeas
relief. He also asserts that he was not required to establish that he would have prevailed
on his petition to establish damage or harm.
{¶ 11} Smith’s second assignment of error repeats the arguments raised under the
first assignment of error. While stressing Oakley’s failure to file an objection to the
magistrate’s decision, he alleges that the same four acts constituted obvious legal
malpractice without the need for him to present expert testimony to prove it.
{¶ 12} Under Civ.R. 56(C), summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one -6-
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. [CITATION]. Appellate review of summary judgment is de
novo. [CITATION].
{¶ 13} To prevail on a legal malpractice claim, a plaintiff must prove that counsel
owed him a duty, that counsel breached the duty and failed to conform to the standard
required by law, and that there was a causal connection between counsel’s conduct and
resulting damage or loss. [CITATION].
{¶ 14} In their summary-judgment motion, Oakley and her law firm primarily relied
on an affidavit from attorney Golden. He expressed his professional opinion about
Oakley’s representation of Smith, whether she met the applicable standard of care, and
whether Smith proximately sustained any damage as a result of Oakley’s actions. Golden
was unable to form an opinion as to whether Oakley provided deficient representation
regarding the untimeliness of the habeas petition. He opined that she acted as a
reasonable attorney and met the standard of care, however, in raising the issues that she
did. He also averred that Smith suffered no damage or harm from the petition’s
untimeliness given that the magistrate addressed Smith’s arguments and rejected them
on their merits.
{¶ 15} In a pro se memorandum opposing summary judgment, Smith presented
no evidence at all. As he does on appeal, he argued that Oakley’s challenged actions
constituted obvious examples of legal malpractice and that he did not need to rely on -7-
expert testimony to oppose summary judgment. He also asserted that Oakley’s expert,
attorney Golden, had failed to review his trial transcripts. In reply, Oakley and her law firm
pointed out Smith’s failure to present any competing evidence to demonstrate a genuine
issue of material fact as to whether her performance proximately caused him any harm.
The trial court entered summary judgment against Smith, finding no genuine issue of
material fact for trial.
{¶ 16} Upon review, we see no error in the trial court’s ruling. For purposes of our
analysis, we will assume arguendo that Oakley breached a duty or obligation to Smith in
the ways he mentions by (1) filing his habeas petition outside of the statute of limitations,
(2) failing to inform him of the federal magistrate’s report and recommendation, (3) failing
to file objections to the report and recommendation, and (4) failing to inform him of the
federal district court’s adoption of the report and recommendation. We also will accept
arguendo that Smith was not required to present evidence from a legal expert to avoid
summary judgment. In its ruling, the trial court noted Smith’s failure to submit any Civ.R.
56 evidence, expert or otherwise, without stating that expert testimony necessarily was
required or that Smith’s lack of an affidavit from an expert was the basis for its ruling.
{¶ 17} The primary impetus behind the trial court’s summary judgment decision
appears to have been the absence of a genuine issue of material fact as to whether
Oakley’s performance proximately caused Smith any harm. Although Oakley filed an
untimely petition, the trial court noted that the federal magistrate nevertheless had
addressed and rejected Smith’s habeas claims on their merits. Those were the same
claims that we had rejected on direct appeal. We see no genuine issue of material fact -8-
as to whether Smith might have prevailed on his habeas claims if only Oakley had filed
the petition sooner. Nor did Oakley’s failure to inform Smith of the magistrate’s report and
recommendation, failure to file objections to the report and recommendation, or failure to
inform him of the federal district court’s adoption of the report and recommendation
proximately cause any harm. Again, we see no genuine issue of material fact as to
whether Smith might have prevailed on his habeas petition if only Oakley had done these
other things. The reason is that none of these actions by Oakley would have had any
bearing on the merits of Smith’s habeas claims.
{¶ 18} On appeal, Smith insists he was not required to show M his habeas claims
would have succeeded to prove legal malpractice. This argument implicates the “some-
evidence” and “case-within-a-case” causation standards applicable to legal-malpractice
claims. The some-evidence standard applies where a plaintiff has suffered damage or
loss regardless of whether he would have been successful in the underlying matter.
[CITATION], at ¶ 21, quoting [CITATION], ¶ 17-18 (2d Dist.), citing [CITATION]. In such a case, a malpractice plaintiff need only
present “some evidence” on the merits of the underlying claim. Id. The case-within-a-case
standard applies where the malpractice theory places the merits of the underlying
litigation directly at issue. Id. In such a case, a malpractice plaintiff must show that he
would have been successful in the underlying litigation but for the alleged malpractice.
Id., quoting [CITATION], citing [CITATION]. Absent -9-
such a showing, causation and damages cannot be proven. [CITATION]
{¶ 19} Here Smith’s malpractice claim was premised on Oakley (1) filing his
habeas petition outside of the statute of limitations, (2) failing to inform him of the federal
magistrate’s report and recommendation, (3) failing to file objections to the report and
recommendation, and (4) failing to inform him of the federal district court’s adoption of the
report and recommendation. For purposes of legal malpractice, these alleged
shortcomings mattered only if at least one of Smith’s habeas claims was meritorious.
Therefore, the case-within-a-case standard applied, and Smith was required to prove that
he would have been successful but for Oakley’s actions. Unfortunately for Smith, his
habeas claims lacked merit without regard to Oakley’s challenged conduct. That being
so, the trial court correctly found no genuine issue of material fact as to whether Oakley’s
performance proximately caused Smith any harm.
{¶ 20} Finally, Smith alleges that attorney Golden failed to review his trial
transcripts. Assuming arguendo that this assertion is true, it fails to persuade us that the
trial court erred in entering summary judgment. Smith’s legal-malpractice claim is not that
better habeas issues existed and that Oakley provided deficient representation by not
finding them. Nor has Smith cited any meritorious substantive issue reflected in his trial
transcripts that Golden failed to notice. Regardless of the extent of Golden’s review of the
record, the fact remains that this court rejected the merits of the issues Smith raised on
direct appeal, and the federal magistrate did the same when reviewing those substantive
issues in the habeas petition. According to his affidavit, Golden also conducted his own
review of the “Docket Reports, Pleadings and Judgments” in Smith’s trial-court case, his -10-
direct appeal, and his habeas case in federal court. Based on that review, Golden
concluded that Smith “did not proximately sustain any damages from Attorney Oakley’s
representation of him.” Smith presented no evidence to the contrary, and we see no
genuine issue of material fact for trial.
{¶ 21} Based on the reasoning set forth above, Smith’s two assignments of error
are overruled.
III. Conclusion
{¶ 22} The judgment of the Montgomery County Common Pleas Court is affirmed.
.............
EPLEY, J. and HUFFMAN, J., concur.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
JENNIFER LAYNE GRISSOM CURTIS, :
et al. :
: C.A. No. 29994
Appellees :
: Trial Court Case No. 2023 MSC 00102
v. :
: (Appeal from Common Pleas Court-
DERF D. EDSELL, et al. : Probate Division)
:
Appellant :
...........
OPINION
Rendered on September 6, 2024
...........
JOHN H. STACHLER, SEAN H. HARMON, & ADAM M. PITCHEL, Attorneys for
Appellant
GARY J. LEPPLA, Attorney for Appellee
.............
TUCKER, J.
{¶ 1} Defendant-appellant Derf D. Edsell appeals from a declaratory judgment that
his sister’s children were vested beneficiaries of The Mary Joan Layne Family Trust and
that he was limited in his ability to sell the residential property for which he was granted -2-
a life estate. Edsell challenges these conclusions and asserts that the probate court
improperly considered extrinsic evidence in reaching its conclusions. For the following
reasons, the probate court’s judgment is affirmed in part and reversed in part.
I. Facts and Procedural History
{¶ 2} Mary Joan Layne was the mother of Derf D. Edsell and Bambi L. Grissom.
Plaintiffs-appellees Jennifer Layne Grissom Curtis, Elizabeth Nichole Yearsley, and
James Christopher Grissom are Grissom’s children (collectively, “the Grandchildren”).
{¶ 3} On December 12, 2012, Layne created a revocable trust named The Mary
Joan Layne Family Trust. Layne transferred her residential property located at 1521
Langdon Drive in Centerville, as well as her personal property, into the trust. The terms
of the trust established Layne as the initial trustee and beneficiary.
{¶ 4} Layne died on January 27, 2021, making the trust irrevocable. Grissom died
approximately six weeks later on March 11, 2021, at the age of 67. Defendant-appellee
William House was appointed as successor trustee on August 9, 2021, and is the current
acting successor trustee of the trust. After Layne and Grissom’s deaths, a dispute arose
between Edsell and the Grandchildren regarding his ability to sell the residential property,
for which he was granted a life estate under the trust. The Grandchildren also
challenged House’s ability to serve as successor trustee.
{¶ 5} On February 24, 2023, the Grandchildren filed a declaratory judgment action
in the probate court, seeking an interpretation of the trust agreement. They alleged that
their uncle had “expressly claimed that pursuant to the terms of the Mary Joan Layne
Family Trust he has the right, despite the fact that he only holds a life estate in real estate -3-
owned by Mary Joan Layne during her lifetime, to sell the entire fee simple value of the
real estate in any fashion, for any amount of money, regardless of the rights of additional
beneficiaries.” Complaint, ¶ 10.
{¶ 6} The Grandchildren requested a declaration regarding the proper
interpretation of the trust in several respects, including that: (1) Edsell had no right to sell
the real estate in which he held a life estate without their participation and only upon terms
equaling the fair market value of the property; (2) he had “no power individually to sell
property”; (3) a national bank or trust company must be a successor trustee; (4) the
Grandchildren had succeeded to Grissom’s rights under trust; (5) Edsell had a duty to
pay property taxes and insurance premiums on the real estate from his personal funds;
(6) the trustee had no duty to continue to pay and maintain a life insurance policy on
Edsell’s life; and (7) the trustee had a duty to gather and liquidate all financial assets.
The Grandchildren also asked for “further relief in terms of distribution of all assets, and
all other items associated with” the trust, plus attorney fees, interest, and costs. They
attached to their complaint copies of the trust agreement and a corrective quit-claim deed,
which transferred the real estate into the trust.
{¶ 7} Edsell denied the allegations and counterclaimed for a declaratory judgment
with different interpretations of the trust. With respect to the Grandchildren, he asked
the court to declare that they were not beneficiaries of the trust and that he owed “no
fiduciary duty whatsoever to [the Grandchildren], regardless of whether [they were]
entitled to a portion of the Real Estate.” As to the real estate itself, he sought
declarations that: (1) he was “authorized to dispose of the Real Estate upon any terms, -4-
at any price and to any person, including himself, with or without the consent of [the
Grandchildren]”; (2) he had “no duty to sell the Real Estate pursuant to any terms other
than those to be determined by [him], in his absolute discretion; and (3) the trustee “must
comply with the disposition of the Real Estate, pursuant to the terms dictated by [Edsell.]”
Edsell attached the trust agreement, as well as copies of Layne’s death certificate and
Grissom’s obituary. The Grandchildren filed an answer to the counterclaims asking that
they be dismissed.
{¶ 8} House, who was sued in his capacity as successor trustee, filed an answer
to the Grandchildren’s complaint, denying the allegations and asking that the
Grandchildren’s complaint be dismissed. House stated, among his defenses, that they
were not beneficiaries of the trust and lacked standing to assert their claims.
{¶ 9} Edsell subsequently sought judgment on the pleadings on his counterclaims.
The Grandchildren responded with a motion for summary judgment, which was supported
by an affidavit from Attorney Richard Boucher, the drafter of the trust agreement.
{¶ 10} In ruling on the motions, the probate court indicated that it “did not rely on
the affidavit because trust construction was manageable within the four (4) corners of the
document.” The court noted, however, that had it done so, the affidavit would have been
credible and would have “carr[ied] heavy weight on summary judgment.”
{¶ 11} As for the disputed issues, the court construed Section 2.9 of the trust to
permit Edsell to “choose if and when the life estate in the real property would be sold, with
net proceeds to be placed in Trust to be administered by the Successor Trustee.” Edsell
was required to pay all maintenance on the property, including upkeep, repairs, property -5-
taxes, insurance, and related expenses. The court rejected Edsell’s interpretation that
he could sell the property to himself at any price he dictated. Rather, the probate court
stated
The Court does not see provisions that permit Derf to trump the Successor
Trustee (who has fiduciary/trustee obligations to others, besides Derf), such
that Derf can simply sell the real property to himself at any price Derf
dictates. Additionally, Derf would not be able to sell/convey more than the
interest that has been granted to him. (i.e. nothing greater than a life
estate) The bottom line is that a trustee has numerous duties including
loyalty, impartiality, and prudent administration, among others. See [CITATION]. Derf cannot require the Successor Trustee to
shirk fiduciary duties and assume such liability. As such an interpretation
would be contrary to public policy.
Nov. 30, 2023 Decision, p. 9.
{¶ 12} The probate court further determined that the Grandchildren were vested
beneficiaries in the trust. It “construe[d] the status of the 1521 Langdon Drive property
and the Lane Trust as holding Bambi Grissom’s one-half remainder of the real property
in trust for the benefit of Plaintiffs and the other half for Derf Edsell, in trust.”
{¶ 13} As to the other issues raised in the complaint, the probate court declined to
remove House as successor trustee and found that the issue of whether a national bank
or trust company must serve as successor trustee was not ripe. The court further stated
that it could not opine on any hypothetical sale of the real estate by Edsell. Finally, the -6-
court declined to render an order related to the Grandchildren’s request for an order that
the successor trustee gather and liquidate financial assets; the court noted that no
evidence had been presented regarding these assets.
{¶ 14} Edsell appeals from the probate court’s judgment, raising four assignments
of error. We will address them in an order that facilitates our analysis.
{¶ 15} Prior to briefing, the Ohio Department of Medicaid (“ODM”) sought to
intervene in the appeal because Grissom, a vested trust beneficiary, had received
Medicaid assistance during her lifetime and ODM had an obligation to seek recovery of
those payments. We overruled the motion to intervene but permitted ODM to file an
amicus curiae brief.
[SEGMENT 2]
II. Relevant Legal Standards
{¶ 16} The parties’ dispute was before the probate court upon opposing claims for
declaratory judgment. Under R.C. 2721.05, any person with an equitable interest in a
trust may have a declaration of rights or legal relations to (1) “ascertain any class of
creditors, devisees, legatees, heirs, next of kin, or others;” (2) direct the trustees or other
fiduciaries to do or abstain from doing any particular act in their fiduciary capacity; and/or
(3) determine any question arising in the administration of the trust, including questions
of construction of the trust document or other writings. See R.C. 2721.05.
{¶ 17} The probate court granted the Grandchildren’s summary judgment motion.
Under Civ.R. 56(C), summary judgment may be granted when the moving party
demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds can come to but one -7-
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. [CITATION]. Appellate review
of summary judgment is de novo. [CITATION].
{¶ 18} The probate court denied Edsell’s Civ.R. 12(C) motion for judgment on the
pleadings. “Unlike a Civ.R. 56 motion for summary judgment, which authorizes the court
to evaluate evidentiary materials submitted for their probative worth, Civ.R. 12(C)
imposes a structural test: whether on their face the pleadings foreclose the relief
requested.” [CITATION]. “Determination of a motion for judgment on the pleadings is
restricted solely to the allegations in the pleadings and any writings attached to the
complaint.” [CITATION]. Because a motion for judgment on the
pleadings presents only questions of law, our review is de novo. [CITATION].
III. Consideration of Extrinsic Evidence
{¶ 19} In his first assignment of error, Edsell claims that the probate court erred by
weighing the credibility of the extrinsic evidence without making a finding of ambiguity in
the terms of the trust. Edsell argues that while the probate court claimed to consider only
the trust agreement itself, it repeatedly noted that Boucher’s affidavit supported its
conclusions. Edsell thus asserts that the probate court improperly considered extrinsic
evidence without finding any ambiguity in the agreement. -8-
{¶ 20} The determination of the meaning of provisions of a trust, including whether
individuals are beneficiaries under the trust, is a question of law. [CITATION] (“Issues concerning
the interpretation of the provisions of the trust, such as whether an individual is a
beneficiary . . . , clearly fall within the province of the court.”), citing [CITATION].
{¶ 21} When interpreting a trust, we follow the same principles that apply when
interpreting contracts. [CITATION]. Our purpose when examining a trust is to give
effect to the settlor’s intent, which is presumed to reside in the terms of the trust
agreement. See id.; [CITATION]. (“A court’s purpose in interpreting a trust is to effectuate, within the legal
parameters established by a court or by statute, the settlor’s intent.”). When a trust is
unambiguous, we derive its meaning from its language alone, without regard to extrinsic
evidence. See [CITATION].
{¶ 22} In this case, the probate court found that the meaning of the Mary Joan
Layne Family Trust could be determined from the language of the trust itself, without
resorting to extrinsic evidence (namely Boucher’s affidavit). The court’s analysis further
reflects that it did not improperly consider extrinsic evidence to interpret what it found to
be an unambiguous document. Although the probate court noted that Boucher’s affidavit
supported its conclusions, it referenced the affidavit as alternative reasoning in the event
that an appellate court determined that the trust agreement was ambiguous. There is no
indication that the court’s interpretation of the trust language was based on evidence -9-
outside the four corners of the document.
{¶ 23} Edsell’s first assignment of error is overruled.
IV. Edsell’s Right to Sell Langdon Property
{¶ 24} Edsell’s fourth assignment of error states that the probate court “erred by
limiting the power of sale granted to [him] in Section 2.9 of the trust.” He contends that
the trust agreement conferred two things upon him: (1) a life estate in the Langdon Drive
property, and (2) unrestricted power of sale over the entire property, not just the life estate.
{¶ 25} Section 2.9 reads:
Successor Trustee shall immediately transfer, convey, and deliver a life
estate in and to the real estate commonly known as and located at 1521
Langdon Drive, Centerville, Montgomery County, Ohio 45459 to Grantor’s
son, DERF D. EDSELL, to have and to hold for and during the term of his
life. DERF D. EDSELL shall pay all charges incident in maintaining said
real estate including, without limitation, (1) upkeep; (2) maintenance; (3)
repairs; (4) assessments; (5) insurance premiums; (6) taxes and/or any
other expenses and/or maintenance necessary to prevent any waste or
deterioration to or of said real estate. Successor Trustee shall authorize
Grantor’s son, DERF D. EDSELL, in his absolute discretion to sell said real
estate at such time, at such price, to such person and upon such terms,
including credit, as he shall deem advisable. In the event of a sale of said
real estate by Grantor’s son, DERF D. EDSELL, the net proceeds thereof
shall be held and administered by Successor Trustee as hereinbelow set -10-
forth. In the event Grantor’s son, DERF D. EDSELL, elects not to exercise
a life estate, elects to terminate his the [sic] life estate; [sic] does not elect
to sell the real estate during his lifetime, or upon the death of Grantor’s son,
DERF D. EDSELL, the rest, residue and remainder of the real estate
commonly known as and located at 1521 Langdon Drive, Centerville,
Montgomery County, Ohio 45459 shall be held and administered by the
Successor Trustee as hereinbelow set forth.
(Emphasis added.)
[CITATION] It is undisputed that Section 2.9 granted Edsell a life estate in the Langdon
Drive property upon Layne’s death. As correctly stated by the probate court, upon
obtaining the life estate, Edsell became responsible for maintaining the physical condition
of the property, as well as paying for assessments, insurance premiums, taxes “and/or
any other expenses and/or maintenance necessary to prevent any waste or deterioration
to or of said real estate.”
[CITATION] Section 2.9 next instructed the successor trustee to authorize Edsell, “in his
absolute discretion to sell said real estate at such time, at such price, to such person and
upon such terms, including credit, as he shall deem advisable.” If Edsell sold the
property, the successor trustee had the responsibility to distribute the net proceeds as
directed in Sections 2.10 to 2.19. Section 2.9 also identified other circumstances that
terminate the life estate. If any of those occurred, the successor trustee again was
responsible for administering the remainder interests in accordance with Sections 2.10 to
2.19. -11-
{¶ 28} Edsell asserts that Section 2.9 granted him unfettered discretion to sell the
Langdon Drive property, in fee simple. We agree that the trust permitted him to sell the
entire real estate. Section 2.9 granted Edsell a life estate with the power of sale.
Accord [CITATION]. Nothing in the plain language of Section 2.9 limited Edsell’s power to sell to
only his life estate.
{¶ 29} Nearly 165 years ago, the Ohio Supreme Court interpreted a power of sale
provision in a will as authorizing the sale of the entire fee, not just a life estate interest.
[CITATION]. The Supreme Court explained:
The testator, in one clause of his will, devises all his property, real or
personal, which may remain after the payment of his debts, to his wife, with
full power to have and to hold, to sell and convey the same, during her
natural life. In the next clause he gives a legacy of $100, to be paid after
the death of his wife, out of any moneys or effects of his estate that may
then remain. We think that by the first clause the wife is to have power to
sell and convey the property, and not a mere life estate in that property.
The first object of the bounty of the testator was his wife, and should she
require it during her life, his whole estate, after the payment of debts, was
placed at her disposition, not merely to have and to hold, but to sell and
convey. The nature of the property may have been such, that the only
beneficial use would arise from a sale and conveyance. The payment of
[SEGMENT 3]
the legacy is postponed until the death of his wife, and is then conditional. -12-
It is to be paid out of any moneys or effects of his estate that may then
remain. If the wants of the wife, during her life, exhausted the property, the
payment of the legacy could not be made. If there remained, at the death
of the wife, any money or effects devised under the will, a trust would attach
to them for the payment of the legacy. This view, we think, gives effect to
each clause of the will, and shows that [the wife] had power, during her life,
to sell and convey the land, not merely for her life, but in fee.
[CITATION] at 280-281.
{¶ 30} Section 2.9 differs significantly from the will in [CITATION] regarding the
disposition of sale proceeds and the remainder interests in the real property.
Nevertheless, [CITATION] supports a conclusion that the Layne Family Trust could give Edsell
a life estate with the authority to sell the entire real estate, not just his life estate interest.
Here, the plain language of Section 2.9 reflected an intention that Edsell have the
authority to sell the entire Langdon Drive property, with proceeds to be split between him
and his sister as directed by Sections 2.10 to 2.19. Accordingly, the probate court erred
in interpreting Section 2.9 of the Mary Joan Layne Family Trust as limiting Edsell to selling
only his life estate interest in the Langdon Drive property.
{¶ 31} Edsell’s power to sell is not unlimited, however. Section 2.9 authorizes
Edsell to sell the Langdon Drive property; it does not authorize Edsell to dispose of the
real estate under terms that would constitute a gift. See, e.g., [CITATION] at paragraph two
of the syllabus; [CITATION], 82 N.E.2d 140, 142-143 (2d Dist. 1948) (where a will
gave a life tenant “full power and authority to sell and convey any part of all of said real -13-
estate and personal property at any time during his natural lifetime in such manner as he
may desire,” the will did not authorize the life tenant to convey the property by gift); [CITATION], ¶ 11 (3d Dist.) (husband’s will granted widow a life estate with
power of disposition, but not by gift). Moreover, “a person who receives a life estate in
real property with a power to sell is ‘by implication, a quasi trustee for those in
remainder.’ ” [CITATION] at ¶ 12, quoting [CITATION] at paragraph two of the syllabus.
Consequently, the life tenant with power of sale cannot “go beyond what would be
regarded as good faith towards the remainder-men.” [CITATION] at 461. However, we
read nothing in Section 2.9 to suggest that Edsell would be required to consult with the
Grandchildren or the successor trustee regarding the terms of any proposed sale, as the
Grandchildren asserted in their complaint.
{¶ 32} Edsell’s fourth assignment of error is overruled in part and sustained in part.
V. The Grandchildren’s Status as Beneficiaries
{¶ 33} Edsell’s second and third assignments of error concern whether the
Grandchildren are beneficiaries of the trust. He first claims that the probate court erred
in interpreting the trust such that it caused the interest of a vested beneficiary (Grissom)
to lapse. He next asserts that the probate court erred by declaring the Grandchildren to
be vested beneficiaries of the trust.
{¶ 34} In their appellate brief, the Grandchildren claim that Edsell lacks standing
to argue that Grissom’s interest passed to her estate rather than her children. However,
Edsell’s argument does not assert a claim on Grissom’s estate’s behalf. Rather, he -14-
contends that the Grandchildren themselves cannot challenge his interpretation of the
trust because Grissom’s interest in the trust had passed to her estate and not to them.
Whether the Grandchildren are beneficiaries is properly before us.
A. Ohio’s Trust Anti-lapse Statute
{¶ 35} We begin with R.C. 5808.19, the trust anti-lapse statute, which is applicable
to all trusts that become irrevocable on or after March 22, 2012. “A significant impetus
for Ohio’s new trusts antilapse statute was a desire to make lapse and antilapse rules
that had long been applicable to wills also apply to revocable trusts, particularly since
revocable trusts are so commonly used as substitutes for wills. New § 5808.19,
however, is not limited to revocable trusts, but also applies to irrevocable trusts.”
[CITATION]
{¶ 36} R.C. 5808.19(B) sets forth two rules governing future interests under the
terms of a trust, unless a contrary intent appears in the instrument creating the trust. See
R.C. 5808.19(B)(2). First, a future interest under the terms of a trust is contingent on the
beneficiary surviving the distribution date by at least 120 hours. R.C. 5808.19(B)(2)(a).
“In effect, new § 5808.19 converts what was a vested remainder under prior law (subject,
in the case of a revocable trust, to divestment by the settlor’s exercise of the reserved
power to revoke or amend) to a contingent remainder conditioned on the beneficiary
surviving the distribution date by at least 120 hours.” [CITATION] Second, if the beneficiary of the future interest does not survive the distribution date by
120 hours and the relationship between the beneficiary and the transferor meets certain -15-
criteria, the statute sets forth substitute beneficiaries. R.C. 5808.19(B)(2)(b).
{¶ 37} R.C. 5808.19(A)(6) defines a “future interest under the terms of a trust” to
mean “a future interest that was created by a transfer creating a trust or a transfer to an
existing trust, or by an exercise of a power of appointment to an existing trust, that directs
the continuance of an existing trust, designates a beneficiary of an existing trust, or
creates a trust.” In this case, the “transferor” means the settlor/grantor, Layne. See
R.C. 5808.19(A)(10)(c). “Beneficiary” means “the beneficiary of a future interest and
includes a class member if the future interest is in the form of a class gift.” R.C.
5808.19(A)(1).
{¶ 38} The term “distribution date” means “the time when the future interest is to
take effect in possession or enjoyment.” R.C. 5808.19(A)(4). For an immediate gift
under a trust, the distribution date is the time of the grantor’s death. See Restatement
(Third) of Property (Wills & Don. Trans.) § 15.1 (2011). In contrast, “[t]he typical
postponed class gift takes effect on the termination of a preceding life estate or a lifetime
income interest in a trust.” Id.
{¶ 39} In its appellate brief, ODM quotes Example 7 from Alan Newman’s article
discussing R.C. 5808.19. That example states: “S created a revocable trust for S for life.
The trust instrument provided that at S’s death, the assets remaining in the trust were to
be distributed to R. Thus, the date of S’s death would be the ‘distribution date’ under the
statute (because that is when R’s future interest would take effect in possession or
enjoyment). Unless the instrument expresses a contrary intent, R’s future interest is
contingent on R surviving S by at least 120 hours. If R does not do so, R’s future interest -16-
fails.” [CITATION]. Example 7 illustrates the effect of R.C.
5808.19(B) on an immediate gift.
{¶ 40} We also find Example 8 to be relevant. It states: “O created a revocable
trust for O for life; then for O’s spouse, S, for S’s life; with the remainder to be distributed
at S’s death to O’s child, C. O died, survived by S and C. Unless the instrument
expresses a contrary intent, C’s future interest is contingent on C surviving S’s death (the
distribution date) by at least 120 hours. If C does not do so, C’s future interest fails.”
Example 8 illustrates the effect of R.C. 5808.19 where there is an immediate gift (S’s life
estate) and a postponed gift (C’s remainder interest).
B. Application to the Terms of the Mary Joan Layne Family Trust
{¶ 41} Section 2 of the Mary Joan Layne Family Trust governed the disposition of
the trust estate upon Layne’s death. Sections 2.1 to 2.8 required the immediate
distribution of specific gifts to Edsell and Grissom. Specifically, upon Layne’s death,
Edsell was to receive oil lamps (2.1), the Hibel picture of a boy (2.4), a Movado watch
(2.5), a surround sound and cabinet (2.6), a grandfather clock (2.7), and a Panasonic
[SEGMENT 4]
television (2.8). Grissom was to receive the Hibel cookbook (2.2) and Hibel picture of a
girl (2.3). Section 2.9, quoted above, addressed the disposition of the Langdon Drive
property.
{¶ 42} Section 2.10 provided that the “rest, residue and remainder of the Trust
Estate, whether the same be real, personal, or mixed,” was to be held and administered
by the successor trustee for the use and benefit of Edsell and Grissom in accordance with
the provisions that followed. In the context of wills, the phrase “rest, residue and -17-
remainder” generally indicates a residuary clause, “that is, a clause which disposes of
that part of the testator’s estate which has not been specifically devised and bequeathed
previously.” [CITATION]. Sections
2.11 to 2.19 set forth the procedures for administering the residue of Layne’s trust estate.
. The Residual Trust Estate
{¶ 43} To resolve whether the Grandchildren were beneficiaries under the trust,
we focus first on Sections 2.11 to 2.13 and Sections 2.17 to 2.18. They state:
.11 Successor Trustee shall immediately divide the Trust Estate into two
(2) equal shares. Each share shall constitute and be held, administered
and distributed by the Successor Trustee as a separate trust.
.12 One equal share shall be set aside for the benefit of each of Grantor’s
children, who may then be living and shall then constitute the Trust Estate
of each such child’s trust.
.13 One equal share shall be set aside for the benefit of the issue of each
deceased child of Grantor then living, per stirpes and not per capita, and
shall constitute the Trust Estate of the trust for such issue.
...
.17 When each child of Grantor attains the age of sixty-five (65) years, the
Successor Trustee shall distribute to such child all of his or her share of the
Trust Estate.
.18 If any child for whom share of the Trust Estate has been set aside
should die prior to attaining the age of sixty-five (65) years, then on the -18-
death of such child the Successor Trustee shall distribute all of the balance
of such deceased child’s Trust Estate to his issue then living, per stirpes
and not per capita. . . .
{¶ 44} These terms were clear and unambiguous. When Layne created the Mary
Joan Layne Family Trust, her children were given a future interest in the trust property.
Upon Layne’s death, the “rest, residue and remainder” of the trust estate was to be divided
immediately into two equal shares, which would then constitute two separate trusts (2.11).
If Edsell and/or Grissom were alive, they would get one of those shares (2.12), and the
successor trustee was to use the two separate trusts for their benefit (see 2.14, 2.15,
2.16). However, if either Edsell or Grissom were deceased when Layne died, that
deceased child’s share would go to that child’s issue per stirpes (2.13). The time of
Layne’s death was the “distribution date” for purposes of the immediate gifts in Layne’s
trust estate.
{¶ 45} In this case, both Edsell and Grissom were alive when Layne died.
Although Grissom died a matter of weeks after Layne, it was beyond the 120 hours (five
days) provided for in R.C. 5808.19, the trust anti-lapse statute, rendering Section 2.13
inapplicable. Accordingly, Edsell and Grissom each were to receive one-half of Layne’s
residual estate, held in a separate trust for each of their benefits.
{¶ 46} Sections 2.17 and 2.18 then addressed when their respective trusts were
to be distributed to them. Section 2.17 required distribution of the children’s (Edsell’s or
Grissom’s) trust estates upon reaching the age of 65. Grissom was alive and over the
age of 65 following Layne’s death. Accordingly, she was entitled to receive a full -19-
distribution of her share of the residual trust estate prior to her death. Section 2.18, which
required the distribution of a deceased child’s trust estate to that child’s issue, applied
only if Edsell or Grissom died more than 120 hours after Layne but prior to turning 65
years old. Because Grissom had attained the age of 65, Section 2.18 was not applicable
to her.
{¶ 47} The trust agreement was thus clear that the Grandchildren were not
beneficiaries of the trust that was created for Grissom upon the division of the Mary Joan
Layne Family Trust into two separate trusts. Regardless of whether the successor
trustee complied with his obligations under Layne’s trust, the plain language of the trust
reflected that, after the division of Layne’s residual trust estate into two separate trusts
for Grissom and Edsell, Grissom’s share should have been distributed to her and no
longer held in trust.
{¶ 48} To the extent that the probate court concluded that the Grandchildren were
to receive, in trust, Grissom’s share of Layne’s residual trust estate should Grissom “not
survive the full Trust administration,” that interpretation was contrary to the plain language
of the trust. Again, the Grandchildren were to receive Grissom’s share in trust only if
Grissom predeceased Layne or did not survive Layne by 120 hours. Upon Grissom’s
death, her share of Layne’s residual trust estate was subject to distribution through testate
or intestate succession.
. The Remainder Interests in the Langdon Property
{¶ 49} The question still remains whether the remainder interests in the life estate
were to be addressed in the same manner as Layne’s residual trust estate. To resolve -20-
this issue, we look to Section 2.9 and the trust anti-lapse statute.
{¶ 50} Section 1 of the Mary Joan Layne Family Trust gave Layne control over the
trust estate, including the Langdon Drive property, during her lifetime. Under the plain
language of Section 2.9, Layne’s death triggered the creation of Edsell’s life estate and
the remainder interests in the Langdon Drive property. The distribution date for Edsell’s
life estate was the time of Layne’s death, and Edsell vested in the life tenancy upon
surviving Layne by at least 120 hours.
{¶ 51} Section 2.9 set forth a specific disposition of the Langdon Drive property,
but it provided that the remainder of the Langdon Drive property should be addressed in
the same manner as Layne’s residual estate. Under Sections 2.11 and 2.12, having
survived Layne by 120 hours, Edsell and Grissom each received a remainder interest in
the Langdon Drive property following Layne’s death. Due to R.C. 5808.19(B)(2)(a), a
remainder interest in real estate is contingent on a beneficiary surviving the distribution
date by at least 120 hours. As illustrated in Newman’s Example 8, the distribution date
for the remainder interest in a life estate is the termination of the life estate, not the death
of the grantor. Accordingly, Edsell and Grissom each obtained a remainder interest in
the Langdon Drive property, contingent upon surviving until the termination of the life
estate. Because Grissom was more than 65 years old, the successor trustee was further
required to distribute the contingent remainder interest to her. Consequently, the
contingent remainder interest no longer should have been held by the successor trustee
in trust for her benefit.
{¶ 52} At this point, Grissom was in the same posture as if Layne had simply -21-
granted a life estate to Edsell with a remainder interest to her. Nevertheless, during the
final weeks of her life, Grisson continued to be a beneficiary of a future interest under the
terms of a trust (the remainder interest created by the Mary Joan Layne Family Trust)
with respect to the Langdon Drive property.
{¶ 53} Because Grissom is now deceased, she necessarily will not survive the
distribution date (the termination of the life estate) by 120 hours. However, [CITATION]
provides, in relevant part:
(b) If a beneficiary of a future interest under the terms of a trust does not
survive the distribution date by at least one hundred twenty hours and if the
beneficiary is . . . a descendant of a grandparent of the transferor, either of
the following applies:
(i) If the future interest is not in the form of a class gift and the deceased
beneficiary leaves surviving descendants, a substitute gift is created in the
beneficiary’s surviving descendants. The surviving descendants take, per
stirpes, the property to which the beneficiary would have been entitled had
the beneficiary survived the distribution date by at least one hundred twenty
hours.
“Surviving descendants” are descendants who survive the distribution date by at least
120 days. [CITATION].
{¶ 54} Because Grissom’s contingent remainder interest will fail and Layne’s trust
[SEGMENT 5]
agreement did not provide for that circumstance, [CITATION] creates a
substitute gift in Grissom’s surviving descendants. Because the distribution date for the -22-
remainder interest in the Langdon Drive property has not yet occurred and it is uncertain
which of the Grandchildren will be a “surviving descendant” when it does, any interest
they now hold under R.C. 5808.19(B) is also contingent. Regardless, by operation R.C.
5808.19, the Grandchildren are substituted for Grissom as beneficiaries of her contingent
remainder interest in the Langdon Drive property.
{¶ 55} In arguing that the Grandchildren are not trust beneficiaries, Edsell relies on
[CITATION], which predates the enactment of the trust
anti-lapse statute. In that case, Hazel McCoy created an irrevocable trust and placed
her residential property into it. Under the terms of the trust agreement, Hazel’s son,
Robert, received a life estate in the property after she died. Upon his death, the
remainder of the estate was to be distributed under the terms of section 4.1(c) of the trust,
which read: “The rest and residue of the Trust Estate to Grantor’s children, namely,
ROBERT MELVIN McCOY, KEITH McCOY, and THELMA L. WITZLEB to be divided
among them equally or, if any of Grantor’s children have predeceased her, then the share
of such predeceased child shall be distributed to his or her issue, per stirpes.”
{¶ 56} After Robert died, Lisa Marie McCoy, both individually and as administrator
of Robert’s estate, brought a declaratory judgment action seeking, in part, an order that
she was Robert’s child and that she or Robert’s estate was entitled to receive a one-third
share of the trust assets, including the real estate. The probate court found in Lisa
Marie’s favor, concluding that Robert had obtained a one-third share of the trust estate
when he survived his mother and, as such, that he was entitled to a one-third share of all
the trust estate, including the real estate, when it was to be distributed after his death.
====== End of Document ====== -23-
On appeal, we agreed with the probate court, stating in part:
Here, paragraph 4.1(c) of the trust instrument granted Mrs. McCoy’s
three children – Keith, Thelma, and Robert – an equal one-third share
remainder interest in the trust estate. Thus, at the instant of creation of the
trust, Keith, Thelma and Robert obtained a vested equitable interest in the
remainder, subject to defeasance in whole or in part by the exercise of the
power to revoke or to modify. See [CITATION].
The trust was neither revoked nor amended during Mrs. McCoy’s lifetime.
Thus, at the time of Mrs. McCoy’s death, the children’s vested one-third
remainder interest became indefeasible.
Appellants argue that Robert did not predecease his mother and,
therefore, the phrase “then the share of such predeceased child shall be
distributed to his or his issue, per stirpes” does not apply and his estate
should receive no interest in the real property. We agree that because
Robert survived his mother, the phrase does not apply. However,
Appellants are incorrect that his estate cannot receive a share of the
remainder as a result. Remainders are descendible, devisable, and
alienable in the same manner as estates in possession. R.C. 2131.04; [CITATION].
The pivotal question, therefore, is whether Mrs. McCoy manifested -24-
an intent for the real estate at issue to be distributed only to those of Mrs.
McCoy’s children who survived after Robert’s death. Upon review of the
trust instrument, she did not. According to paragraph 4.1(b), upon Robert’s
death, the real estate was to be “distributed under the terms stated in
paragraph 4 .1c.” The only reasonable interpretation of this phrase is that,
upon Robert’s death, the real estate would become part of the remainder to
be distributed according to paragraph 4.1(c). As stated above, Robert had
a vested one-third remainder interest in the trust estate which was
descendible and devisable. Accordingly, although Robert was necessarily
deceased when the real estate was to be distributed, the trial court properly
concluded that his estate was entitled to a one-third share when it was
distributed under paragraph 4.1(c).
[CITATION] at ¶ 25-27.
{¶ 57} [CITATION]’s utility is affected by the subsequent enactment of R.C. 5808.19,
but it remains instructive in limited respects. Both Robert and Grissom were alive when
their mothers died but were deceased when questions arose about their remainder
interests in real property. Unlike Robert, Grissom did not obtain a vested remainder
interest in the real estate upon her mother’s (the grantor’s) death; rather, due to R.C.
5808.19, Grissom’s remainder interest was contingent upon surviving the termination of
the life estate. Nevertheless, the language of the trust in [CITATION] demonstrated an intent
for the creation of Robert’s remainder interest to occur when Robert survived his mother,
not when the life estate ended. The structure of Section 2.9 and the sections that follow -25-
reflect a similar intent.
{¶ 58} Edsell argues that [CITATION] stands for the proposition that, upon the death of
a vested trust beneficiary, the trust interest of that beneficiary passes to the beneficiary’s
estate. This case is factually distinguishable, as [CITATION] held only a contingent
remainder interest, not a vested remainder interest, in the real estate. We recognize that
remainders, whether vested or contingent, generally are descendible, devisable, and
alienable in the same manner as estates in possession. R.C. 2131.04. However,
Ohio’s trust anti-lapse statute now addresses the disposition of a contingent future
interest under the terms of a trust where the beneficiary does not survive the distribution
date. [CITATION] does not control the circumstance before us. Rather, under R.C. 5808.19,
the Grandchildren are substituted for [CITATION] as contingent remainder beneficiaries and,
consequently, the remainder interest does not pass through [CITATION]’s estate.
{¶ 59} In summary, because the Grandchildren have contingent remainder
interests in the Langdon Drive property, we agree with the probate court that they are
beneficiaries of the Mary Joan Layne Family Trust. The probate court erred, however,
in concluding that the Grandchildren were vested beneficiaries. Accordingly, Edsell’s
second and third assignments of error are overruled in part and sustained in part.
VI. Conclusion
{¶ 60} The probate court’s judgment will be affirmed in part and reversed in part.
.............
WELBAUM, J. and LEWIS, J., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
CARTHAGENIA WYATT :
INDIVIDUALLY :
AS ADMINISTRATOR OF THE : C.A. No. 2024-CA-3
ESTATE OF DELTINA GRAVES :
: Trial Court Case No. 22CV0289
Appellants :
: (Civil Appeal from Common Pleas
v. : Court)
:
CITY OF SPRINGFIELD OHIO, ET AL. :
Appellees
...........
OPINION
Rendered on August 30, 2024
...........
ROBERT L. GRESHAM, Attorney for Appellant
KAITLIN L. MADIGAN, Attorney for Appellee
.............
TUCKER, J.
{¶ 1} Carthagenia Wyatt appeals, individually and as administrator of the estate of
Deltina Graves, from an adverse summary-judgment ruling on a complaint alleging -2-
wrongful death and other causes of action against the City of Springfield and two
emergency medical technicians (EMTs). The appellants also include four individuals who
were the decedent’s next of kin.
{¶ 2} The appellants advance five assignments of error. First, they contend
summary judgment was improper because the record contained evidence rebutting a
coroner’s cause-of-death determination. Second, they challenge the trial court’s
determination that the appellees were entitled to statutory immunity. Third, they claim the
record revealed a genuine issue of material fact as to whether the EMTs engaged in
willful, wanton, or malicious misconduct. Fourth, they challenge the trial court’s denial of
their motion for leave to file expert disclosures. Fifth, they argue that the trial court erred
in denying them leave to file a supplemental memorandum opposing summary judgment.
{¶ 3} We find the trial court’s immunity determination to be dispositive of this
appeal. The trial court correctly found the appellees—two EMTs and the City of
Springfield—immune from liability because the EMTs did not engage in willful or wanton
misconduct as a matter of law. Accordingly, the trial court’s judgment will be affirmed.
[SEGMENT 6]
I. Background
{¶ 4} The present appeal stems from the death of Deltina Graves. The appellants
contend she died at a local hospital as a result of being “dropped on her head” during a
medical transport by Springfield EMTs Scott Kaufman and Cory Scanlan. Following the
incident, the appellants filed a complaint against the EMTs and the City of Springfield
alleging wrongful death and nine other tort causes of action. Following some discovery,
the appellees moved for summary judgment arguing, among other things, that they were -3-
entitled to statutory immunity. The trial court sustained the motion for several reasons.
First, it found no evidence to rebut a coroner’s determination that Graves’ cause of death
was an “acute atraumatic intracranial hemorrhage,” meaning that the hemorrhage was
not caused by any head trauma. Second, it reasoned that the EMTs and the City of
Springfield statutorily were immune from liability. Third, if found that wrongful-death and
survivorship claims needed to be brought in the name of the decedent’s personal
representative and that any such individual claims failed for lack of standing. Fourth, it
concluded that the facts did not support emotional-distress claims. Fifth, it found no
evidence of willful, wanton, or malicious misconduct by the EMTs. This appeal followed.
II. Immunity and Willful or Wanton Misconduct
{¶ 5} We begin our analysis with the appellants’ second and third assignments of
error, which state:
II. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT
APPELLEES ARE ENTITLED TO IMMUNITY.
III. THE TRIAL COURT ERRED IN FINDING THAT INSUFFICIENT
EVIDENCE HAS BEEN PRESENTED TO SUPPORT A CLAIM OF
WILLFUL, WANTON, AND MALICIOUS MISCONDUCT.
{¶ 6} Relying on R.C. 2744.03, the appellants contend the record revealed a
genuine issue of material fact as to whether the EMTs who transported Graves to the
hospital acted willfully, wantonly, recklessly, or otherwise engaged in malicious
misconduct and whether their actions deviated from the standard of care and proximately
caused the decedent’s death. Therefore, the appellants assert that the trial court
====== -4-
improperly entered summary judgment against them.
{¶ 7} Under Civ.R. 56(C), summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. [CITATION].
{¶ 8} “In a summary judgment review, the court may not weigh the proof or choose
among reasonable inferences, and the court is limited to examining the evidence in the
light most favorable to the non-moving party.” [CITATION]. Significantly, however, “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” [CITATION]. “[B]ecause summary judgment is a
procedural device to terminate litigation, it must be awarded with caution. Doubts must
be resolved in favor of the non-moving party.” [CITATION]. Appellate review
of summary judgment is de novo. [CITATION].
{¶ 9} With the foregoing standards in mind, we conclude that the trial court properly
entered summary judgment for EMTs Kaufman and Scanlan and for the City of Springfield
based on statutory immunity. With regard to the EMTs, the trial court correctly looked to
R.C. 4765.49(A), which provides: “A first responder, emergency medical technician-basic, -5-
emergency medical technician-intermediate, or emergency medical technician-
paramedic is not liable in damages in a civil action for injury, death, or loss to person or
property resulting from the individual’s administration of emergency medical services,
unless the services are administered in a manner that constitutes willful or wanton
misconduct.”
{¶ 10} With regard to the City of Springfield, R.C. 2744.02(A)(1) provides political-
subdivision immunity for governmental functions, which include the provision of
emergency medical services. [CITATION], 2013-Ohio-989, ¶ 15. An exception is found in
R.C. 2744.02(B)(5), which applies “when civil liability is expressly imposed upon the political subdivision by a section of the Revised
Code.” In [CITATION], the Ohio Supreme Court held that R.C. 4765.49(B) expressly imposed
liability on a political subdivision under certain circumstances. Id. at ¶ 23. In particular,
R.C. 4765.49(B) states that a political subdivision providing emergency medical services
is not liable in damages in a civil action for injury, death, or loss” resulting from an EMT’s
actions “unless the services are provided in a manner that constitutes willful or wanton
misconduct.” Thus, where EMT services are provided in a manner that constitutes willful
or wanton misconduct, R.C. 4765.49(B) expressly imposes liability on a political
subdivision within the meaning of R.C. 2744.02(B)(5). [CITATION] at ¶ 23.
{¶ 11} Under R.C. 4765.49(A) and (B), then, appellees Kaufman, Scanlan, and the
City of Springfield all were immune from liability unless the EMTs administered services
to the decedent in a manner that constituted willful or wanton misconduct. After
conducting a de novo review, we agree with the trial court’s assessment that Kaufman -6-
and Scanlan did not do so as a matter of law. Construing the evidence and all reasonable
inferences in favor of the appellants, we see no genuine issue of material fact.
{¶ 12} “Willful misconduct implies an intentional deviation from a clear duty or from
a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to
safety, or purposefully doing wrongful acts with knowledge or appreciation of the
likelihood of resulting injury.” [CITATION]. Willful
misconduct effectively requires an intent to injure. [CITATION]. “Wanton misconduct is the failure to exercise any care toward
those to whom a duty of care is owed in circumstances in which there is a great probability
that harm will result.” [CITATION].
{¶ 13} In the present case, EMTs Kaufman and Scanlan were called to Graves’
residence where they found her in an upstairs bathroom. Family members reported that
Graves had been experiencing vomiting and diarrhea. She was sweaty, incoherent, and
unable to move her left side. The EMTs moved Graves outside and placed her on what
they referred to as “a cot.” The appellants’ strongest evidence with regard to the EMTs’
treatment of Graves from that point on came from Theresa Moore, a neighbor who
watched from her kitchen window across the street. In her deposition, Moore described
what she saw as follows:
Well, it was when they were sitting there, she—it was like [Graves]
had passed out, and it was like slow motion as she went off the side of the
gurney. And I literally scared my kids to death because I was standing there
going, oh, my God, catch her, catch her, catch her. And [Moore’s children] -7-
come flying like, what’s going on? And that’s when I seen her fall off that
gurney. And that’s—it was—there was no belt on her. If she would have had
a belt on, she would have never fell off that gurney.
Moore depo. at 43.
{¶ 14} When asked whether Graves fell “all the way” to the ground, Moore
responded that “there’s no way she didn’t.” [CITATION]. Moore explained that she watched
Graves fall from the side of the cot as one of the EMTs “was looking up in the air looking
at the stars or something.” [CITATION]. That EMT then grabbed Graves’ feet and ankles, which
were the only thing remaining on the cot. [CITATION]. From her vantage point, Moore did not
actually see any part of Graves’ body hit the ground. Given that only Graves’ feet and
ankles remained on the cot, however, Moore opined that “there’s no way she didn’t” hit
the ground. [CITATION]. Based on the way Graves fell, Moore stated that it would have been
the left side of her head that would have struck the ground. [CITATION]. Finally, Moore
described what the EMT holding Graves’ feet and ankles did after she fell off the side of
the cot: “He just kind of looked—he kind of looked back at the house that sits straight
across the street from mine, * * * he kind of looked back there, and I felt like he looked
back there to see if anybody was watching. They never looked over toward my house.”
[CITATION].
{¶ 15} Upon being transported to Springfield Regional Medical Center, Graves
was diagnosed with a “subdural hematoma,” or bleeding on the brain, on the left side of
[SEGMENT 7]
her head. In her deposition, Dr. Jenny Guest, the emergency-room physician, testified
that Graves’ symptoms inside the home before being moved by the EMTs were consistent -8-
with a subdural hematoma. Guest depo. at 19. Guest observed no external signs of head
trauma, which she typically would have expected to see if Graves had hit her head after
falling from a cot. [CITATION]. Guest acknowledged, however, that external signs do not
always accompany an internal head injury. [CITATION]. She also agreed that a blow to the
head due to a fall from a cot could cause symptoms like those Graves was experiencing
at the hospital. [CITATION]. Although the two EMTs did not report that Graves had fallen
from a cot, Dr. Guest was aware of the allegation. The neighbor, Moore, had told Graves’
mother about what she had seen, and Graves’ mother had advised the doctor. [CITATION].
{¶ 16} After receiving initial treatment at the hospital in Springfield, Graves was
transported by helicopter to Miami Valley Hospital, where she died. Following an autopsy,
a coroner identified the cause of death as an “acute atraumatic intracranial hemorrhage,
contributed to by hypertensive cardiovascular disease and complications of chronic
ethanol abuse.” (Emphasis added.)
{¶ 17} For their part, Kaufman and Scanlan denied that Graves fell off of the cot.
In their depositions, they described her “listing” to the side before they caught her, stopped
her from going any further, and repositioned her. [CITATION]. Both EMTs denied that Graves ever struck the ground. [CITATION]. Both EMTs stated that they had strapped Graves to the cot with all
the available straps (which only went to her torso) and that the cot’s partial railing (which
only went to her hips or waist) was up. [CITATION].
Although eyewitness Moore did not see any straps from her vantage point, the appellants
concede on appeal that the two EMTs did secure Graves with two straps—“one around -9-
her ankles, and the other around her midsection.” Appellants’ Brief at 8. They argue,
however, that the EMTs should have used more effective restraints known as “Spider
straps.”
{¶ 18} Having reviewed the record, we see nothing from which a trier of fact
reasonably could have found that Kaufman or Scanlon engaged in willful or wanton
misconduct toward Graves. Construing the evidence and all reasonable inferences in
favor of the appellants, a trier of fact reasonably could have inferred that Graves slid from
the cot despite the lower portion of her body being strapped and did strike her head on
the ground. While the appellees characterize such a conclusion as “speculation,” we
believe it is a fair inference that can be drawn from Moore’s testimony. A trier of fact also
could have inferred from Moore’s testimony that the EMTs were not paying close enough
attention when Graves slid from the cot. We see no basis, however, for finding that either
EMT engaged in willful or wanton misconduct toward Graves. With regard to the
appellants’ argument about the use of “Spider straps,” Kaufman acknowledged that they
should be used “if available.” [CITATION] at 26. But the cots his department used did
not have them available. [CITATION] at 26-28. For his part, Scanlan was not familiar with Spider
straps. [CITATION] at 42.
{¶ 19} Even if we were to find the first-responder/EMT immunity statute, R.C.
4765.49(A), inapplicable to Kaufman and Scanlan (despite its clear applicability) and
instead to apply the general immunity statute, R.C. 2744.03, summary judgment would
have been proper. Under R.C. 2744.03(A)(6)(b), which covers all political-subdivision
employees, an employee is immune unless he or she acted “with a malicious purpose, in -10-
bad faith, or in a wanton or reckless manner.”
{¶ 20} We fully addressed wanton misconduct in our analysis above. With regard
to the other standards, “malicious purpose” means a willful and intentional design to
injure. [CITATION], ¶ 16 (2d Dist.), quoting [CITATION], ¶ 42 (5th Dist.). “Bad faith” suggests a dishonest
purpose and conscious wrongdoing with ulterior motives or ill will. Id. We see no genuine
issue of material fact as to whether Kaufman or Scanlan acted with a malicious purpose
or in bad faith toward Graves. Nothing in the record supported such a conclusion.
{¶ 21} The only remaining standard under R.C. 2744.03(A)(6)(b) is “reckless”
conduct. Such conduct “is characterized by the conscious disregard of or indifference to
a known or obvious risk of harm to another that is unreasonable under the circumstances
and is substantially greater than negligent conduct.” [CITATION], ¶ 34. Recklessness requires a showing that the actor knew his or her conduct “in
all probability” would result in injury. [CITATION], ¶ 26 (2d Dist.).
Even showing recklessness is a “rigorous” threshold to meet. Id.
{¶ 22} We see nothing from which a trier of fact reasonably could have concluded
that Kaufman or Scanlan acted recklessly. The appellants complain about Graves not
being strapped above the waist, but nothing in the record suggests the availability of
additional straps. We note too that the EMTs provided uncontroverted testimony about
the cot’s partial side rails being up. The appellants also complain about the EMTs not
mentioning Graves’ fall to the emergency-room physician after the fact. But the physician,
Dr. Guest, promptly had been made aware of the allegation by Graves’ mother. At most, -11-
the record suggests that Kaufman and Scanlan were inattentive when Graves
unexpectedly slid from her cot. As a matter of law, this conduct could not have constituted
more than negligence.
{¶ 23} For all of the foregoing reasons, the trial court correctly entered summary
judgment in favor of Kaufman, Scanlan, and the City of Springfield based on statutory
immunity from liability. The appellants’ second and third assignments of error are
overruled.
III. Other Issues
{¶ 24} The appellants’ first, fourth, and fifth assignments of error state:
I. THE TRIAL COURT ERRED IN RULING THAT INSUFFICIENT
EVIDENCE HAS BEEN ESTABLISHED TO REBUT THE CORONER’S
CAUSE OF DEATH CONCLUSION.
IV. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
PLAINTIFF-APPELLANT’S MOTION FOR LEAVE TO FILE EXPERT
DISCLOSURE.
V. THE TRIAL COURT ERRED IN FAILING TO ISSUE A DECISION
REGARDING AND GRANT PLAINTIFF’S MOTION FOR LEAVE TO FILE
SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO MOTIONS FOR
SUMMARY JUDGMENT.
{¶ 25} In their first assignment of error, the appellants contend the record contains
evidence rebutting the coroner’s determination that Graves died from an “atraumatic”
subdural hematoma. The appellants contend a trier of fact reasonably could have found -12-
that the fatal hematoma was caused by trauma, namely Graves’ fall from the cot.
{¶ 26} In their fourth assignment of error, the appellants challenge the trial court’s
denial of their motion for leave to file expert disclosures to identify two medical doctors as
their experts. The appellants claim these experts would have provided important
testimony about the cause of Graves’ death being a hematoma that resulted from her fall
off of the cot.
{¶ 27} In their fifth assignment of error, the appellants contend the trial court erred
in denying them leave to file a supplemental memorandum opposing summary judgment.
The appellants explain that they desired to supplement their opposition with deposition
testimony from the appellees’ own medical expert regarding the cause of Graves’
hematoma.
{¶ 28} In light of our statutory-immunity determination above, we find the
appellants’ first, fourth, and fifth assignments of error to be moot. Each of these
assignments of error addresses the cause of Graves’ hematoma and whether it resulted
from her striking her head after falling from the cot. Even if we assume, however, that
Graves fell from the cot, struck her head, and died from a subdural hematoma caused by
the fall, the appellees would remain entitled to statutory immunity for the reasons set forth
above. Nothing in the appellants’ first, fourth, or fifth assignments of error has any bearing
on whether the appellants engaged in conduct that would deprive them of immunity.
Accordingly, we find those assignments of error to be moot and overrule them on that
basis.
IV. Conclusion -13-
{¶ 29} The judgment of the Clark County Common Pleas Court is affirmed.
.............
WELBAUM, J. and LEWIS, J., concur. Given there are no text content or obvious court ruling citations provided in the request, I can't apply the anonymization process. However, if there were court ruling citations present, the instruction would be applied to replace each identified citation appropriately as described. Please provide the text of court rulings for anonymization.
[SEGMENT 8]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
GEOFFREY SURBER :
:
Appellant : C.A. No. 2023-CA-17
:
v. : Trial Court Case No. 22-CV-00477
:
JUSTIN HINES, ET AL. : (Civil Appeal from Common Pleas
: Court)
Appellees :
:
...........
OPINION
Rendered on January 12, 2024
...........
NICOLE L. POHLMAN, Attorney for Appellant
KATHLEEN F. RYAN, Attorney for Appellees
.............
TUCKER, J.
{¶ 1} Geoffrey Surber appeals from the trial court’s entry of summary judgment
against him on a claim for injunctive relief and statutory damages against the Greenville
Township Board of Zoning Appeals (BZA).
{¶ 2} Surber contends genuine issues of material fact exist as to whether BZA
members violated R.C. 121.22, which is known as the Open Meetings Act (OMA) or the -2-
“Sunshine Law,” by privately discussing his appeal from zoning-violation notices
immediately before conducting a hearing.
{¶ 3} We conclude that the OMA did not apply because the BZA members’
discussion was part of an exempt quasi-judicial proceeding. Accordingly, the trial court’s
judgment will be affirmed.
I. Background
{¶ 4} Surber filed a November 2022 two-count complaint against the Greenville
Township Board of Trustees and its members, Greenville Township fiscal officer Susan
Miles, and the Greenville Township BZA. The complaint alleged that Surber had erected
three buildings on his property after obtaining zoning permits. The complaint further
alleged that a Greenville Township zoning inspector issued him zoning-violation notices
with respect to the buildings after their completion.
{¶ 5} According to the complaint, Surber appealed the violation notices to the BZA.
The complaint alleged that Greenville Township had denied his public-record requests
related to the issue. It further alleged that BZA members had met privately for an hour
immediately before hearing his appeal on October 28, 2021 “to discuss the facts and
circumstances surrounding Plaintiff’s appeal and to make a decision concerning [his]
property.” The complaint alleged that BZA members subsequently paused the hearing
before its completion and went into executive session “to discuss personnel.” According
to the complaint, BZA members departed and entered a private room.
{¶ 6} Count one of the complaint asserted four public-record violations by the
Greenville Township Board of Trustees and fiscal officer Miles. Surber sought a writ of -3-
mandamus to compel production of the records. He also requested damages and
attorney’s fees. Count two alleged that the Greenville Township BZA had violated the
OMA by conducting a “pre-hearing” private meeting immediately before hearing his
appeal on October 28, 2021 and by pausing the hearing to enter executive session.
Surber requested injunctive relief, a determination that the BZA’s denial of his appeal was
“invalid” under the OMA, statutory damages of $500, and attorney’s fees.
{¶ 7} In June 2023, the trial court dismissed Surber’s mandamus claim as moot
with regard to two of his four public-record requests, as those records eventually had
been provided. The trial court noted, however, that the issue of damages resulting from
the initial denial of the records remained unresolved. With regard to the other two public-
record requests, the trial court found the Board of Trustees and fiscal officer Miles entitled
to summary judgment. Finally, the trial court found the BZA entitled to summary judgment
on the OMA claim in count two, reasoning:
Viewing the evidence most strongly in Plaintiff’s favor, this Court
finds reasonable minds can only conclude the following: On October 28,
, the Greenville Township Zoning Board of Appeals was acting in a
quasi-judicial capacity when it was considering and deciding upon Plaintiff’s
appeal of the zoning violation issued by Defendant, Scott Peele. This entire
adjudicatory hearing process was not a “meeting” under Ohio’s Open
Meetings Act. Therefore, neither the meeting prior to the public hearing, nor
the executive session, violated the OMA.
[CITATION], Decision, Order, and Entry at 18. -4-
{¶ 8} Surber appealed from the trial court’s ruling. Noting that the damages issue
remained pending on his public-record claim, we issued a show-cause order questioning
whether an appealable order existed. In response, Surber noted that he subsequently
had dismissed count one and that the trial court had filed a dismissal entry. In a
September 29, 2023 ruling, we deemed our show-cause order satisfied.
II. Analysis
{¶ 9} In his sole assignment of error, Surber contends the trial court erred in finding
that BZA members were acting in a quasi-judicial capacity when they met privately and
discussed his case just before hearing his appeal. Surber concedes that public hearings
of the BZA are quasi-judicial and that deliberations occurring after such hearings are not
subject to the OMA. When the BZA members met before his hearing, however, he asserts
that they had not yet performed any quasi-judicial function and had nothing to deliberate.
He reasons that finding the pre-hearing meeting not subject to the OMA “would be akin
to finding that a jury could meet and discuss a case in private prior to hearing any
evidence on the record in a court of law.”
{¶ 10} Under Civ.R. 56(C), summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. [CITATION]. Appellate review of summary judgment is de
novo. [CITATION]. -5-
{¶ 11} Upon review, we see no error in the trial court’s entry of summary judgment
against Surber. An adjudicatory proceeding before a zoning appeals board is quasi-
judicial, and the OMA does not apply to board members’ deliberations in such a case.
[CITATION] The quasi-judicial nature of such a proceeding arises from board members’ exercise
of discretion and the need to provide notice and a hearing. [CITATION] Although the actual
hearing may be open to the public, a board performing a quasi-judicial function “requires
privacy to deliberate, i.e., to evaluate and resolve, the disputes.” [CITATION] “This privacy
frees the [board] from the open pressure of the litigants as it contemplates the case.
Privacy provides an opportunity for candid discussion between board members and staff
on the legal issues and the facts[.]” [CITATION] “For these reasons, the Sunshine Law does not
apply to adjudications of disputes in quasi-judicial proceedings.” [CITATION] In fact, “because a
quasi-judicial proceeding is not a meeting for purposes of R.C. 121.22, the Sunshine Law
is inapplicable from the outset.” [CITATION]
{¶ 12} Surber does not dispute the foregoing authority. He contends it is
inapplicable, however, because the Greenville Township BZA met privately before his
hearing. Surber concedes that the OMA does not apply to board deliberations after a
hearing. But where BZA members meet privately before a hearing, Surber reasons that
no quasi-judicial act has occurred, that the members have nothing to deliberate, and that
the OMA applies. As noted above, he analogizes to jurors improperly discussing a case -6-
before hearing evidence.
{¶ 13} We find Surber’s argument to be unpersuasive. In our view, the entire
proceeding before the BZA was quasi-judicial in nature. Surber’s appeal from the zoning-
violation notices entitled him to a hearing where he could present evidence to the BZA,
which exercised discretion in resolving the matter. Although the cases cited on appeal
involve deliberations occurring after a hearing, none of them hold that pre-hearing
deliberations in quasi-judicial proceedings are subject to the OMA. As set forth above,
deliberating encompasses both evaluating and resolving disputes. [CITATION].
It involves “candid discussion between board members * * * on the legal issues and the
facts[.]” [CITATION].
{¶ 14} Contrary to Surber’s argument, we see no legal impediment to the BZA
members conducting private, preliminary, pre-hearing deliberations to evaluate his case
and to discuss the issues in preparation for taking evidence. The entire proceeding before
the BZA was quasi-judicial in nature, and “the Sunshine Law [was] inapplicable from the
outset.” [CITATION]. Although Surber’s appellate brief does not specifically address the
BZA’s “executive session” during his hearing, the OMA would be equally inapplicable to
those private deliberations for the same reason. See, e.g., [CITATION], 2013-
[SEGMENT 9]
Ohio-722, ¶ 15 (“With respect to the zoning board’s recess into executive session to
discuss the application, there is no Open Meeting Act violation. The action of a board of
zoning appeals in reviewing an application for conditional use is a quasi-judicial function.
* * * The Sunshine Laws do not apply to deliberations on such applications.”) -7-
{¶ 15} Surber’s analogy to jury deliberations fails to persuade us otherwise. He
suggests that allowing the BZA members to meet privately before hearing his appeal is
akin to holding that jurors can discuss a case privately before hearing any evidence. Even
if we presume that the two situations are analogous, premature jury deliberations are still
deliberations. Similarly, even if the BZA members’ pre-hearing deliberations were
improper, they were still part of the quasi-judicial proceeding involving Surber’s appeal
from the zoning-violation notices. Assuming, arguendo, that the BZA members’ pre-
hearing deliberations violated procedural due process, Surber conceivably might have
grounds to invalidate the board’s decision through a direct appeal. But we see no OMA
violation. Compare [CITATION] (finding written pre-hearing deliberations permissible and
concluding that even if the communications were improper the remedy would be
invalidation of the board’s decision through an appeal, not compelled disclosure of the
internal, pre-decisional communications).1
{¶ 16} Surber may be correct in asserting that due-process violations and OMA
violations are not mutually exclusive. Construing the evidence and all reasonable
inferences in his favor, however, we simply see no genuine issue of material fact as to
whether the Greenville Township BZA violated the OMA. Consequently, the trial court
correctly entered summary judgment against him.
1 In [CITATION], the court rejected an “argument that Board members may not consider or
discuss the evidence in, or merits of, a proceeding on a conditional use application prior
to the close of hearings,” while also concluding that “even if the law did support such a
principle, this would not serve to transform deliberative, albeit impermissible under that
interpretation, communications into non-deliberative communications.” [CITATION] at 1215. -8-
{¶ 17} Based on the reasoning set forth above, Surber’s assignment of error is
overruled.
III. Conclusion
{¶ 18} The judgment of the Darke County Common Pleas Court is affirmed.
.............
LEWIS, J. and HUFFMAN, J., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
SHAWN D. SMITH, JR. :
:
Appellant : C.A. No. 29809
:
v. : Trial Court Case No. 2022 CV 00805
:
LAW OFFICE OF KAREN OAKLEY, : (Civil Appeal from Common Pleas
LLC, et al. : Court)
:
Appellees :
...........
OPINION
Rendered on October 20, 2023
...........
SHAWN D. SMITH, JR., Appellant, Pro Se
G. TODD HOFFPAUIR and GEORGE D. JONSON, Attorneys for Appellees
.............
TUCKER, J.
{¶ 1} Shawn D. Smith, Jr. appeals pro se from the trial court’s entry of summary
judgment against him on his legal-malpractice complaint against appellees Karen Oakley
and the Law Office of Karen Oakley, LLC.
{¶ 2} Smith’s complaint alleged legal malpractice based on attorney Oakley’s
handling of a federal petition for a writ of habeas corpus. On appeal, Smith contends the -2-
trial court erred in entering summary judgment against him where Oakley’s filing of the
petition beyond the statute of limitations and other deficiencies, including failure to object
to a federal magistrate’s report and recommendation, were so plainly prejudicial that he
did not need expert testimony to prove malpractice.
{¶ 3} We see no error in the trial court’s entry of summary judgment. Even
assuming, arguendo, that Oakley provided deficient representation by filing an untimely
petition and in other ways, Smith was not prejudiced because the substantive claims in
his petition for a writ of habeas corpus lacked merit. Accordingly, the trial court’s judgment
will be affirmed.
I. Background
{¶ 4} Smith received a sentence of 37 years to life in prison in 2017 for murder and
related crimes. On direct appeal to this court, he raised an issue under [CITATION]. He also challenged the
trial court’s exclusion of evidence about the victim’s reputation for violence as well as its
admission of other-acts evidence involving him. We rejected each argument and affirmed
in [CITATION]. We subsequently
affirmed the trial court’s dismissal of a post-conviction-relief petition in [CITATION].
{¶ 5} Smith then filed a petition for a writ of habeas corpus in federal court on
December 28, 2020. As grounds for relief, he raised the same arguments that we had
rejected on direct appeal. In a February 1, 2021 report and recommendation, a federal
magistrate found Smith’s petition barred by the applicable statute of limitations and -3-
recommended dismissal. Nevertheless, the magistrate also addressed the merits of
Smith’s arguments. The magistrate concluded that our rejection of the [CITATION] argument
on direct appeal was a reasonable application of [CITATION] and its progeny. With regard to
the exclusion of evidence about the victim’s reputation, the magistrate found the issue
procedurally defaulted because Smith had raised it on appeal as an evidentiary question
rather than a constitutional one. Even setting aside the default, the magistrate concluded
that the issue lacked merit in the absence of clearly established U.S. Supreme Court
authority holding that exclusion of such evidence violated federal due process. Finally,
with regard to other-acts evidence involving Smith, the magistrate found the issue
procedurally defaulted in multiple ways. Once again, the magistrate also rejected Smith’s
argument on the merits in the absence of clearly established U.S. Supreme Court
precedent requiring exclusion of the evidence. Smith filed no objections to the
magistrate’s report and recommendation, which a federal district court judge adopted on
February 26, 2021.
{¶ 6} On February 24, 2022, Smith filed a legal-malpractice complaint against
Oakley and her law office based on her handling of his habeas petition. The complaint
included causes of action for malpractice, unjust enrichment, and breach of contract. The
trial court dismissed the claims for unjust enrichment and breach of contract under Civ.R.
12(B)(6) because they restated the malpractice claim. Oakley and her law firm then
moved for summary judgment on the malpractice claim. The motion was supported with
affidavits from Oakley and attorney Keith E. Golden, who opined about Oakley’s
performance in handling the habeas petition. Following briefing, the trial court sustained -4-
the motion on May 2, 2023, reasoning in part:
Plaintiff has failed to file any Civ.R. 56 evidence in opposition to
Defendant’s Motion for Summary Judgment. Plaintiff asserts that no expert
evidence is needed because the legal malpractice of untimely filing the
Petition is clear. The U.S. Dist. Court for the Southern District of Ohio,
Western Division at Dayton, though, still addressed the merits of the Writ of
Habeas Corpus despite any alleged untimely filing. Mr. Golden stated that
Oakley acted as a reasonable attorney in all respects with regard to her
representation of Mr. Smith in the habeas corpus petition proceeding and
that Plaintiff did not proximately sustain any damages from Oakley’s
representation of him. Based on the uncontroverted evidence presented,
the Court finds that Defendants are entitled to summary judgment as prayed
for in their motion.
(Footnotes omitted.)
{¶ 7} This appeal followed.
II. Analysis
{¶ 8} Smith presents the following two assignments of error:
I. THE COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN
FAVOR OF THE DEFENDANTS ON THE LEGAL MALPRACTICE CLAIM.
II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
DID NOT CONSIDER A MATERIAL FACT BEFORE IT WHEN IT
RESOLVED THE CASE BY ENTRY. -5-
{¶ 9} In his first assignment of error, Smith contends the trial court erred in failing
to recognize that he was not required to present expert testimony to prove legal
malpractice. He maintains that no expert was required because Oakley’s malpractice was
so obvious that it could be determined by the trial court as a matter of law and that it was
within the ordinary knowledge and experience of a layman.
{¶ 10} Smith cites four acts by Oakley that he claims obviously breached her duty
of care and proximately caused him to suffer damage or harm. Those acts are (1) filing
his habeas petition outside of the statute of limitations, (2) failing to inform him of the
federal magistrate’s report and recommendation, (3) failing to file objections to the report
[SEGMENT 10]
and recommendation, and (4) failing to inform him of the federal district court’s adoption
of the report and recommendation in time to appeal. According to Smith, each of these
acts constituted obvious malpractice, rendering expert testimony on the issue
unnecessary. He argues that Oakley’s actions prevented him from fully pursuing habeas
relief. He also asserts that he was not required to establish that he would have prevailed
on his petition to establish damage or harm.
{¶ 11} Smith’s second assignment of error repeats the arguments raised under the
first assignment of error. While stressing Oakley’s failure to file an objection to the
magistrate’s decision, he alleges that the same four acts constituted obvious legal
malpractice without the need for him to present expert testimony to prove it.
{¶ 12} Under Civ.R. 56(C), summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one -6-
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. [CITATION]. Appellate review of summary judgment is de
novo. [CITATION].
{¶ 13} To prevail on a legal malpractice claim, a plaintiff must prove that counsel
owed him a duty, that counsel breached the duty and failed to conform to the standard
required by law, and that there was a causal connection between counsel’s conduct and
resulting damage or loss. [CITATION].
{¶ 14} In their summary-judgment motion, Oakley and her law firm primarily relied
on an affidavit from attorney Golden. He expressed his professional opinion about
Oakley’s representation of Smith, whether she met the applicable standard of care, and
whether Smith proximately sustained any damage as a result of Oakley’s actions. Golden
was unable to form an opinion as to whether Oakley provided deficient representation
regarding the untimeliness of the habeas petition. He opined that she acted as a
reasonable attorney and met the standard of care, however, in raising the issues that she
did. He also averred that Smith suffered no damage or harm from the petition’s
untimeliness given that the magistrate addressed Smith’s arguments and rejected them
on their merits.
{¶ 15} In a pro se memorandum opposing summary judgment, Smith presented
no evidence at all. As he does on appeal, he argued that Oakley’s challenged actions
constituted obvious examples of legal malpractice and that he did not need to rely on -7-
expert testimony to oppose summary judgment. He also asserted that Oakley’s expert,
attorney Golden, had failed to review his trial transcripts. In reply, Oakley and her law firm
pointed out Smith’s failure to present any competing evidence to demonstrate a genuine
issue of material fact as to whether her performance proximately caused him any harm.
The trial court entered summary judgment against Smith, finding no genuine issue of
material fact for trial.
{¶ 16} Upon review, we see no error in the trial court’s ruling. For purposes of our
analysis, we will assume arguendo that Oakley breached a duty or obligation to Smith in
the ways he mentions by (1) filing his habeas petition outside of the statute of limitations,
(2) failing to inform him of the federal magistrate’s report and recommendation, (3) failing
to file objections to the report and recommendation, and (4) failing to inform him of the
federal district court’s adoption of the report and recommendation. We also will accept
arguendo that Smith was not required to present evidence from a legal expert to avoid
summary judgment. In its ruling, the trial court noted Smith’s failure to submit any Civ.R.
56 evidence, expert or otherwise, without stating that expert testimony necessarily was
required or that Smith’s lack of an affidavit from an expert was the basis for its ruling.
{¶ 17} The primary impetus behind the trial court’s summary judgment decision
appears to have been the absence of a genuine issue of material fact as to whether
Oakley’s performance proximately caused Smith any harm. Although Oakley filed an
untimely petition, the trial court noted that the federal magistrate nevertheless had
addressed and rejected Smith’s habeas claims on their merits. Those were the same
claims that we had rejected on direct appeal. We see no genuine issue of material fact -8-
as to whether Smith might have prevailed on his habeas claims if only Oakley had filed
the petition sooner. Nor did Oakley’s failure to inform Smith of the magistrate’s report and
recommendation, failure to file objections to the report and recommendation, or failure to
inform him of the federal district court’s adoption of the report and recommendation
proximately cause any harm. Again, we see no genuine issue of material fact as to
whether Smith might have prevailed on his habeas petition if only Oakley had done these
other things. The reason is that none of these actions by Oakley would have had any
bearing on the merits of Smith’s habeas claims.
{¶ 18} On appeal, Smith insists he was not required to show M his habeas claims
would have succeeded to prove legal malpractice. This argument implicates the “some-
evidence” and “case-within-a-case” causation standards applicable to legal-malpractice
claims. The some-evidence standard applies where a plaintiff has suffered damage or
loss regardless of whether he would have been successful in the underlying matter.
[CITATION], at ¶ 21, quoting [CITATION], ¶ 17-18 (2d Dist.), citing [CITATION]. In such a case, a malpractice plaintiff need only
present “some evidence” on the merits of the underlying claim. Id. The case-within-a-case
standard applies where the malpractice theory places the merits of the underlying
litigation directly at issue. Id. In such a case, a malpractice plaintiff must show that he
would have been successful in the underlying litigation but for the alleged malpractice.
Id., quoting [CITATION], citing [CITATION]. Absent -9-
such a showing, causation and damages cannot be proven. [CITATION]
{¶ 19} Here Smith’s malpractice claim was premised on Oakley (1) filing his
habeas petition outside of the statute of limitations, (2) failing to inform him of the federal
magistrate’s report and recommendation, (3) failing to file objections to the report and
recommendation, and (4) failing to inform him of the federal district court’s adoption of the
report and recommendation. For purposes of legal malpractice, these alleged
shortcomings mattered only if at least one of Smith’s habeas claims was meritorious.
Therefore, the case-within-a-case standard applied, and Smith was required to prove that
he would have been successful but for Oakley’s actions. Unfortunately for Smith, his
habeas claims lacked merit without regard to Oakley’s challenged conduct. That being
so, the trial court correctly found no genuine issue of material fact as to whether Oakley’s
performance proximately caused Smith any harm.
{¶ 20} Finally, Smith alleges that attorney Golden failed to review his trial
transcripts. Assuming arguendo that this assertion is true, it fails to persuade us that the
trial court erred in entering summary judgment. Smith’s legal-malpractice claim is not that
better habeas issues existed and that Oakley provided deficient representation by not
finding them. Nor has Smith cited any meritorious substantive issue reflected in his trial
transcripts that Golden failed to notice. Regardless of the extent of Golden’s review of the
record, the fact remains that this court rejected the merits of the issues Smith raised on
direct appeal, and the federal magistrate did the same when reviewing those substantive
issues in the habeas petition. According to his affidavit, Golden also conducted his own
review of the “Docket Reports, Pleadings and Judgments” in Smith’s trial-court case, his -10-
direct appeal, and his habeas case in federal court. Based on that review, Golden
concluded that Smith “did not proximately sustain any damages from Attorney Oakley’s
representation of him.” Smith presented no evidence to the contrary, and we see no
genuine issue of material fact for trial.
{¶ 21} Based on the reasoning set forth above, Smith’s two assignments of error
are overruled.
III. Conclusion
{¶ 22} The judgment of the Montgomery County Common Pleas Court is affirmed.
.............
EPLEY, J. and HUFFMAN, J., concur.
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as Gilliland v. Adams, 2023-Ohio-3083.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
JA-NELLE GILLILAND :
:
Appellant : C.A. No. 29732
:
v. : Trial Court Case No. 2022 CV 00845
:
MARK R. ADAMS : (Civil Appeal from Common Pleas
: Court)
Appellee :
:
...........
OPINION
Rendered on September 1, 2023
...........
DWIGHT D. BRANNON & KEVIN A. BOWMAN, Attorneys for Appellant
DEREK L. MUNCY, Attorney for Appellee
.............
EPLEY, J.
{¶ 1} Plaintiff-Appellant Ja-Nelle Gilliland appeals from the trial court’s order
granting Defendant-Appellee Mark R. Adams’s motion for summary judgment. For the
reasons that follow, the judgment of the trial court will be reversed, and the case will be
remanded for further proceedings in accordance with this opinion.
-2-
I. Facts and Procedural History
{¶ 2} In most appeals, we can make a single chronicle of what transpired. If the
case is a plea, the defendant-appellant admits to the facts set forth by the State. In a trial,
the testimony tells the story. In this case, though, the parties, while they shared a similar
timeline of events, told completely different narratives. Because of that, the facts adduced
come from the parties’ respective depositions.
Gilliland’s Story
{¶ 3} In 2018, Gilliland was the owner of Rogue Salon in Clayton. On November
9, 2018, she went into the PNC Bank location in Englewood and met with Adams to
change the name on her business account from her name to that of her salon. Even
though Gilliland was not in the market for it, she asserted that she completed paperwork
for a new business credit card. Gilliland was also informed by Adams that some of her
documents were incorrect and she would need to come back to make changes. A new
appointment was set for November 14 but was cancelled due to inclement weather.
{¶ 4} On December 7, 2018, Gilliland and her husband were preparing for an open
house at the new Clayton salon when Adams unexpectedly arrived for a visit. Once inside,
he asked to speak to Gilliland privately. Adams revealed to Gilliland that he had secured
some grants and investors for her business, a credit card, and a small business loan with
“excellent interest.” Only a few days later, though, the business fell through and the salon
never opened. A bankruptcy filing followed.
{¶ 5} After failing to open the salon in Clayton, Gilliland called Adams to explain
the circumstances and was told that they could “pause” everything until a new location
-3-
was found. In late April 2019, Gilliland found a space in Piqua to potentially re-launch
Rogue Salon, and she contacted Adams to see if he could still help her with the financing.
He assured her that he could, and the two planned to meet at the bank on the morning of
May 13, 2019.
{¶ 6} According to Gilliland, when she arrived at the meeting, Adams began
bragging about his political connections and stated that he had done undercover work
with the Montgomery County Sheriff’s Office to take down a sex trafficking ring. The
conversation turned political, and Adams made the comment that Gilliland was “just
Trump’s type.” She laughed it off and said, “yeah, maybe 65 pounds ago and twenty some
odd years ago.” Gilliland Deposition at 48. Gilliland then made it clear that she believed
the conversation was inappropriate. Also at this meeting, Adams informed her that he had
secured for her a $10,000 small business loan, a $5,000 credit card, and a $25,000 grant
from PNC for women-owned businesses. He also allegedly set up a “Clover Flex” point
of sale system and collected $498 to do so. An additional meeting was scheduled on May
17 for Gilliland to finalize the requisite documentation.
{¶ 7} On May 16, Gilliland and Adams exchanged a series of text messages. The
messages began with Adams advising Gilliland on where to find some required
documents online. Then, around 4:48 p.m., Gilliland inadvertently sent a selfie to Adams.
She apologized and explained it was supposed to be sent to one of her friends. Adams
responded: “Damn, nice. Beautiful. Lol.” He later added: “No need to be sorry, as long as
you don’t mind me enjoying it.” The text conversation then returned to what was needed
to open an account; Gilliland emphasized that she did not want a loan or credit card.
-4-
{¶ 8} The following day, Gilliland was scheduled to meet with Adams again to set
up her business account. Prior to the meeting, though, Adams informed her that there
was a $100 fee to open the account. Gilliland noted that she only had $40 and needed
that to feed her children. Adams agreed to waive most of the fee and do it for $25. She
also testified that she brought $1,566 to deposit in her business account for rent, but the
money never made it into her account.
{¶ 9} Gilliland stated that once she was in Adams’s office, he led them into a
conversation about politics and abortion which made her uncomfortable. She became
even more uncomfortable when the conversation turned to sex. Adams allegedly told her
that he had recently been at a training seminar and all he could think about was “how he
did not put [her] over his desk when he had the chance.” Gilliland Deposition at 68. She
believed this to be a clear indication that he wanted to have sex with her. She further
testified that Adams told her: “My wife and I haven’t had sex in well over 12 years. I’m
coming to you as a new man. * * * I’ll take care of you.” Gilliland Deposition at 69. At one
point during their meeting that day, Gilliland got up to go to the bathroom, and as Adams
escorted her out of his office, he put his hand on the small of her back.
{¶ 10} After the meeting ended, the two exchanged more texts, including the
following exchange.
Gilliland: Soooo. I think you want something.
Adams: Yes, you are right. But, I also respect you. I am not one of the guys.
Adams: We need to talk.
Adams: I will explain.
-5-
Adams: What do you want, that’s important to me.
Gilliland: I want someone that can help me in many ways. I think you know
this. I want in politics, you want me red[.] [S]how me why I should be, I’m pretty
open minded. I won’t be controlled, that’s for sure. I have my tattoos and wild hair
doesn’t mean I’m wild. You know I need someone that can help me literally right
now. Ball is in your court.
Gilliland: Balls only in your court for a limited time.
Adams: Like I said, we needed to talk. I want a long term relationship with
love, caring, respect and excitement. I don’t have money available to help you now.
I will help you where I can.
Adams: I am not one of the other guys.
Gilliland: I’m not saying you are.
Gilliland: I’m saying I need help. If your [sic] not willing that’s fine.
Gilliland: But I’m not a hooker.
Gilliland: See the others want me to commit to them and commit my body to
them but that it. If I’m doing this I want proof that there is something in it for me
other than promises.
Gilliland: So you are a banker you know how zelle works you only need my
name and phone number or name and email. Prove to me you are serious and it
has to be substantial.
Gilliland: You have until about 3:30 to make up your mind. If not it will never
be talked about again or revisited.
-6-
Gilliland: So you mislead [sic] me. So you are like the other guys.
Gilliland: So basically had I took your advances you made in your office I would
have gotten my loan that I wanted. Good to know you had other intentions.
Adams: I will still try to get you a loan. I have not made advances. I told you I
was not going to try to have sex with you. I will try to help you any way possible. I
do not come close to thinking you are a hooker.
Adams: You are bright, energetic and a good person.
{¶ 11} On May 18, 2019, Gilliland went to Adams’s superiors and accused him of
sexual harassment.
Adams’s Story
{¶ 12} Mark Adams had worked for PNC Bank for 13 years and was the vice
president of the Englewood branch when Gilliland came into his office in November 2018.
According to Adams, the sole reason for her visit was to change the name on her checking
account; she was not interested in a loan or merchant services for the hair salon she was
trying to open. However, because of pressure from “higher ups” to get business and
corporate accounts, Adams explained to Gilliland about the other services PNC could
offer her fledgling venture.
{¶ 13} During their early conversations, Gilliland revealed that she had come to the
Englewood PNC branch because the manager of another branch propositioned her.
According to the story, the manager from a northern branch told her that, despite having
bad credit, he would get her a loan in return for sexual favors. Adams did not believe the
story and considered it to be a red flag, but because he wanted Gilliland’s business,
-7-
Adams still tried to help. “I had gotten the distinct impression that there was more going
on than just the business to start her salon.” Adams Deposition at 20.
{¶ 14} During on-going discussions, “it became very obvious that she was – had
other things in mind other than getting business with PNC.” Adams Deposition at 16.
According to Adams, Gilliland began to tell him that she had five men who would give her
money in exchange for sex. She called them her “other guys.” She made other sexual
comments as well, and Adams believed that she wanted sex. One story she told was that
one of her “guys” wanted to “lean her over his desk.” Adams made it clear that he was
not “one of her guys” and was not interested in having sex. Nevertheless, for the next
several months, Adams continued to pursue Gilliland’s business and spoke to her via
phone and text intermittently. According to Adams, she also would stop in his office from
time to time.
{¶ 15} Adams found some of the conversations in which Gilliland engaged to be
odd. For instance, “there was one point she asked me about me being in politics. And
that she would * * * ‘think about going red’ and if she – you know, needed help and I said
‘well, if you really want to, you know, I can see if I can get somebody who needs some
help passing out literature.’ ” Adams Deposition at 66. She also, according to Adams,
mentioned that she had met Donald Trump, and he had told her that she was just his type
if she would lose 25 pounds. Gilliland also mentioned that she was a “Me Too” activist.
{¶ 16} The two scheduled a meeting on May 17, 2019, to set up a PNC business
checking account. On May 16, they exchanged several texts messages in which Adams
explained what paperwork Gilliland would need to open an account. In the midst of that
-8-
conversation, Gilliland sent Adams a selfie taken from an angle that accentuated her
breasts. She claimed that it was sent by mistake and was actually intended for her friend,
Tarah. Adams, for his part, responded, “Damn, nice. Beautiful. Lol.”
{¶ 17} On May 17, 2019, Gilliland met with Adams in his office at the bank.
However, before she arrived, the two were in contact via text. Gilliland informed Adams
that she did not have enough money to set up an account. “Well, I only have 45 [dollars]
to my name and I need that for groceries so I think I will have to take up one of the offers
I have been offered.” Adams interpreted the talk of “offers” as referring to one of the men
she had previously mentioned who would give her money in exchange for sex. He replied
that he would open up an account for only $25.
{¶ 18} Gilliland arrived at the end of the business day on May 17. Adams stated
that there had been other employees still at the bank because it was company policy that,
even if the bank had closed, everyone had to stay if there was a customer around. During
the visit, he was able to help Gilliland open a business checking account, and she left
happy. Shortly afterwards, her attitude totally changed.
{¶ 19} The following day Adams went to his bosses to inform them of the situation.
According to him, the ensuing investigation found that he may have used some “verbiage”
that he should not have and, to ensure the bank did not experience any bad press, he
was terminated from his position. He was, however, given his full retirement benefits and
was permitted to tell the public that he had retired.
Procedural Posture
{¶ 20} Gilliland’s original complaint was filed July 31, 2020, but was voluntarily
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dismissed on November 16, 2021, after Adams filed a motion to dismiss for failure to
prosecute. The new complaint, which included claims of intentional infliction of emotional
distress and unlawful discrimination on the basis of sex under R.C. 4112.02(G), was filed
on February 25, 2022. Adams filed a motion for summary judgment on November 23,
2022. After Gilliland filed her motion in opposition, the trial court granted Adams’s motion,
finding that Gilliland “failed to show a genuine issue of material fact precluding summary
judgment on her R.C. 4112.02(G) claim.” The court likewise granted summary judgment
in Adams’s favor on the intentional infliction of emotional distress claim.
{¶ 21} Gilliland has appealed the trial court’s summary judgment decision as to the
R.C. 4112.02(G) claim only.
II. Summary Judgment
{¶ 22} In her assignment of error, Gilliland argues that the trial court erred by
granting summary judgment in favor of Adams on her claim of sex discrimination under
R.C. 4112.02(G).
{¶ 23} Pursuant to Civ.R. 56(C), a movant is entitled to summary judgment when
that party demonstrates that there is (1) no issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can
come to only one conclusion, and that conclusion is adverse to the non-moving party.
Rhododendron Holdings, LLC v. Harris, 2021-Ohio-147, 166 N.E.3d 725, ¶ 22 (2d Dist.).
{¶ 24} “The burden of demonstrating that no genuine issues exist as to any
material fact falls upon the moving party requesting a summary judgment.” Harless v.
Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). Once the
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moving party has satisfied its burden of showing that there is no genuine issue of material
fact, the burden shifts to the nonmoving party to set forth specific facts showing a genuine
issue for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The
nonmoving party cannot rely upon the mere allegations or denials in the pleadings, but
must give specific facts showing that there is a genuine issue for trial. Civ.R. 56(E). Accord
Geloff v. R.C. Hemm’s Glass Shops, Inc., 2021-Ohio-394, 167 N.E.3d 1095, ¶ 14 (2d
Dist.). When the standard is met, summary judgment must be awarded as a matter of
law. We review the trial court’s ruling on a summary judgment motion de novo. Martcheva
v. Dayton Bd. of Edn., 2021-Ohio-3524, 179 N.E.3d 687, ¶ 35 (2d Dist.).
{¶ 25} As to the substantive claim, R.C. 4112.02(G) states that it is an unlawful
discriminatory practice “[f]or any proprietor or any employee, keeper, or manager of a
place of public accommodation to deny to any person, except for reasons applicable alike
to all persons regardless of race, color, religion, sex, military status, national origin,
disability, age, or ancestry, the full enjoyment of the accommodations, advantages,
facilities, or privileges of the place of public accommodation.”
{¶ 26} Discrimination can come in different forms, but in this case, Gilliland’s theory
was that it was quid pro quo sexual harassment. This type of harassment (which is most
commonly seen in the employment context) can be proven by demonstrating (1) that the
victim was a member of a protected class, (2) that the victim was subjected to unwelcome
sexual harassment in the form of sexual advances or requests for sexual favors, (3) that
the harassment complained of was based on gender, and (4) that the submission to the
unwelcome advances was an express or implied condition for receiving benefits or that
-11-
the refusal to submit to the sexual demands resulted in a tangible detriment. Kinnison v.
Advance Stores Co., 5th Dist. Richland No. 02CA73, 2003-Ohio-3387, ¶ 14.
{¶ 27} According to the Ohio Supreme Court, the test for unlawful discrimination
under R.C. 4112.02(G) “is simply whether the proprietor, keeper, manager, or employee
of a place of public accommodation has denied to any person the full enjoyment of
such place for reasons not applicable alike to all persons irrespective of race, color,
religion, [sex, military status] national origin, [disability, age,] or ancestry.” (Emphasis sic.)
Ohio Civil Rights Comm. v. Lysyj, 38 Ohio St.2d 217, 221, 313 N.E.2d 3 (1974) (bracketed
terms are now part of the statute).
{¶ 28} Even though the Court set forth the test, there was no definition given (either
by the Court or the statute) for the key phrase “full enjoyment” of accommodations,
advantages, facilities, or privileges. Since the 1970s, though, Ohio appellate courts have
adopted a uniform definition. “Full enjoyment” of a public place of accommodation means
“the right to purchase all services or products of a place of accommodation, the right to
be admitted to any place of accommodation, and the right to have access to the services
and products of such a place in the same manner as all other customers.” Meyers v. Hot
Bagels Factory, Inc., 131 Ohio App.3d 82, 104, 721 N.E.2d 1068 (1st. Dist.1999). A bank
is a place of public accommodation. Love v. Ohio Civil Rights Comm., 5th Dist. Stark No.
6072, 1983 WL 6548, *2 (July 19, 1983).
{¶ 29} The outcome of this case turns on this question: Was there something
offered to the public that Gilliland did not get because she rebuked Adams’s purported
sexual advancements? Adams argues that “other than her own self-serving statements
-12-
of feeling ‘embarrassed’ and ‘belittled’ by Mr. Adams, [Gilliland] is unable to point to any
set of facts establishing how she was denied full enjoyment of the accommodations,
advantages, facilities, or privileges of PNC Bank.” Appellee’s Brief at 11.
{¶ 30} While it is true that the record contains no physical evidence (i.e., a paper
trail) that Gilliland applied for a loan or a small business credit card, there is still some
evidence (albeit contradictory to other pieces of evidence, and sometimes contradictory
to her own words) that Gilliland asked for a loan but did not receive one. For instance,
Gilliland testified that at some point she did fill out loan paperwork. Gilliland Deposition at
12. During a text exchange she also stated that “I was very up front that I wanted a loan.
[But] I was not going to sleep with him or anyone else to make that happen. * * * Not once
did I even hint at possibly being interested in anything but a loan.” May 18, 2019, Text
Message.
{¶ 31} Despite the trial court’s ruling to the contrary, and Adam’s contention that
the statements were “self-serving,” we believe Gilliland’s declarations that she wanted a
loan were sufficient to survive this stage of the litigation. Civ.R. 56(C) permits the use of
depositions to support summary judgment. The party opposing the motion may use any
material contemplated by the Rule to “set forth specific facts showing that there is a
genuine issue for trial.” Civ.R. 56(E). At trial, the fact finder may not believe Gilliland –
and Adams can certainly use her seemingly contradictory statements against her – but
the statements that she did want a loan raised an issue of material fact that should be
decided at trial, not on summary judgment. Gilliland’s assignment of error is sustained.
III. Conclusion
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{¶ 32} Because we conclude that there was a genuine issue of material fact as to
whether Gilliland was denied the full enjoyment of PNC Bank as a result of sexual
harassment, the judgment of the trial court will be reversed, and the matter will be
remanded the case for further proceedings in accordance with this opinion.
.............
WELBAUM, P.J. and LEWIS, J., concur.
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
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Law
9825840
[SEGMENT 1]
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. LIGHTSPIRIT
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
SHEKINAH N. LIGHTSPIRIT, APPELLANT.
Filed September 3, 2024. No. A-23-733.
Appeal from the District Court for Lancaster County: RYAN S. POST, Judge. Affirmed.
Darik J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
MOORE, RIEDMANN, and BISHOP, Judges.
MOORE, Judge.
INTRODUCTION
Shekinah N. Lightspirit appeals from the order of the district court for Lancaster County,
denying his motion seeking postconviction relief following an evidentiary hearing. Finding no
error, we affirm.
STATEMENT OF FACTS
CONVICTION AND SENTENCE
The charges in this case stemmed from an incident occurring in the early morning hours of
July 24, 2014. Matthew Perry, a homeless man, was sleeping outside his tent in an encampment
located behind the People’s City Mission in Lincoln, Nebraska. A man, later identified by
numerous eyewitnesses as Lightspirit, approached Perry as he slept. Lightspirit threw a heavy
object at Perry, striking him in the head. Perry’s collarbone was also broken during the assault.
Lightspirit fled the scene before police arrived.
Perry was transported to the hospital where he was diagnosed with a depressed skull
fracture. Perry underwent surgery for the injury and was eventually released.
Lightspirit was arrested at Matt Talbot Kitchen later in the morning on the day of the
assault. Matt Talbot Kitchen is about 30 blocks from the People’s City Mission. Lightspirit agreed
to a police interview in which he denied he had been near the People’s City Mission or assaulted
Perry that morning.
Lightspirit was charged with first degree assault. The information was later amended to
add a charge of use of a deadly weapon to commit a felony and an enhancement for being a habitual
criminal.
The matter proceeded to a jury trial. The State presented the testimony of numerous
eyewitnesses who identified Lightspirit as the person who had injured Perry by throwing the heavy
object at his head. The State also presented the testimony of numerous police officers involved in
the investigation, and the doctor who performed the surgery on Perry. Lightspirit testified in his
own defense, claiming he was sleeping in a park near Matt Talbot Kitchen at the time of the assault.
Lightspirit testified that after he woke up, he went directly to the bathroom at Matt Talbot Kitchen,
where he was arrested. The jury found Lightspirit guilty on both counts.
Following an enhancement hearing, the trial court found Lightspirit to be a habitual
criminal and sentenced him to 15 to 25 years’ imprisonment for first degree assault and 10 to 20
years’ imprisonment for use of a deadly weapon to commit a felony. The court ordered that the
sentences be served consecutively and awarded Lightspirit credit for 432 days served. See [CITATION].
DIRECT APPEAL
Lightspirit, represented by appellate counsel, filed a direct appeal asserting that there was
insufficient evidence to support his convictions, that the district court erred in admitting an exhibit
at the enhancement hearing that was not properly authenticated, that his trial counsel was
ineffective in various respects, and that the totality of the circumstances establishes that he did not
receive a fair trial.
This court affirmed Lightspirit’s convictions and sentences. We also noted that the record
was inadequate for our court to address Lightspirit’s assertions that his trial counsel was ineffective
for failing to present additional alibi evidence, for failing to question police about accessing
records, and for failing to call an additional witness, Dakota Heinzen. See [CITATION].
POSTCONVICTION PROCEEDINGS
Lightspirit, then self-represented, filed his original postconviction motion on October 16,
2017, and later was granted leave by the district court to file an amended postconviction motion.
Lightspirit, through postconviction counsel, filed the operative amended postconviction motion on
May 8, 2019. In the district court’s later order addressing Lightspirit’s amended postconviction
motion, it consolidated Lightspirit’s various claims as: (1) trial counsel was ineffective because he
did not call Heinzen as a witness; (2) trial counsel was ineffective because he failed to adequately
cross-examine Officer Pachunka, the assigned officer to the case; (3) trial counsel was ineffective
because he failed to adequately cross-examine four other witnesses; (4) trial counsel was
ineffective because he failed to introduce evidence that witnesses who claimed to have seen the
assault were initially unable to provide a name of the assailant; (5) trial counsel was ineffective
because he failed to file a motion for independent blood testing; (6) trial counsel was ineffective
for not moving to dismiss or for a mistrial based upon police contaminating the crime scene when
they arrived; (7) the county court bound the case over without sufficient probable cause; and (8)
the trial court’s response to the jurors’ question about Heinzen was in error.
On October 7, 2019, the district court ordered an evidentiary hearing on the first two of
Lightspirit’s claims of ineffective assistance of trial counsel: failing to call Heinzen as a witness
and failing to adequately cross-examine Pachunka regarding accessing police reports and
documents. The court deferred ruling on all other claims (3-8 above) raised in the amended
postconviction motion until the evidentiary hearing was held.
An evidentiary hearing was held before the district court on July 17, 2023. Several exhibits
were entered into evidence including: a deposition of trial counsel; a deposition of Heinzen taken
prior to trial; a transcript of Heinzen’s statement to police in July 2014; a transcript of Lightspirit’s
statement to Pachunka in July 2014; a deposition of Pachunka taken prior to trial; and a police
report from Pachunka regarding an incident with Lightspirit in March 2014. We have set forth
details of this evidence as necessary in the analysis section below.
On August 25, 2023, the district court entered an order denying Lightspirit’s claims for
postconviction relief. The court rejected the two claims of ineffective assistance of trial counsel
which had been the subject of the evidentiary hearing, finding the claims to be without merit. We
have set forth further details of the court’s analysis of these issues below. The court also found
Lightspirit’s remaining claims to be procedurally barred as Lightspirit had failed to demonstrate
that any of the alleged issues were unknown to him or not apparent from the record at the time of
his direct appeal.
Lightspirit appeals.
ASSIGNMENTS OF ERROR
Lightspirit assigns, reordered and restated, that the district court erred in (1) rejecting his
postconviction claims that trial counsel was ineffective for failing to call Heinzen as a witness and
failing to adequately cross-examine Pachunka; and (2) finding the remainder of his postconviction
claims to be procedurally barred.
STANDARD OF REVIEW
In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier
of fact, resolves conflicts in the evidence and questions of fact. [CITATION]. An appellate court upholds the trial court’s findings unless they are clearly
erroneous. Id.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law
and fact. [CITATION]. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error. Id. With regard to
the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in [CITATION].
(1984), an appellate court reviews such legal determinations independently of the lower court’s
decision. Id.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which an appellate court reviews independently of the lower court’s ruling. [CITATION],
315 Neb. 445, 996 N.W.2d 859 (2023).
ANALYSIS
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Generally, a motion for postconviction relief cannot be used to secure review of issues that
were or could have been litigated on direct appeal. See [CITATION], 312 Neb. 316, 978 N.W.2d
620 (2022). However, on direct appeal this court found that the record was insufficient to address
Lightspirit’s assertions that his trial counsel was ineffective for failing to present additional alibi
evidence, for failing to question police about accessing records, and for failing to call Heinzen as
an additional witness. See [CITATION], No. A-15-970, 2016 WL 6596094 (Neb. App. Nov.
8, 2016) (selected for posting to court website). Thus, these claims are not procedurally barred.
See [CITATION], 300 Neb. 770, 916 N.W.2d 393 (2018).
To prevail on a claim of ineffective assistance of counsel under [CITATION],
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. [CITATION], supra. To show that counsel’s performance was deficient,
the defendant must show counsel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. To show prejudice under the prejudice component of the
[CITATION] test, the defendant must demonstrate a reasonable probability that but for his or her
counsel’s deficient performance, the result of the proceeding would have been different. [CITATION], supra. A reasonable probability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the outcome. The likelihood of a different result
must be substantial, not just conceivable. Id. The two prongs of this test may be addressed in either
order, and the entire ineffectiveness analysis should be viewed with a strong presumption that
counsel’s actions were reasonable. Id.
Lightspirit asserts that trial counsel was ineffective in failing to call Heinzen as a witness
and failing to adequately cross-examine Officer Pachunka. We will address each claim in turn.
Trial counsel’s deposition and Heinzen’s police statement and deposition were received by
the district court at the evidentiary hearing. In his deposition, trial counsel testified that he recalled
taking Heinzen’s deposition and that Heinzen had testified at the time that he did not know
anything about the assault. After the jury trial had begun, Heinzen then told trial counsel, “if you
call me, I am not going to be helpful to you.”
In Heinzen’s July 2014 statement to police, he stated that he saw Lightspirit assault Perry
with a metal ball. However, at Heinzen’s deposition in August 2015, he testified that he did not
recall any events from July 2014, including making a statement to police. Heinzen further testified
that he did not know Lightspirit and that he was an alcoholic with memory issues.
Trial counsel testified in his deposition that he made the strategic decision not to call
Heinzen as a witness at trial given Heinzen’s inability to recall key events during his deposition
[SEGMENT 2]
and Heinzen’s implication that he would not be a helpful witness for the defense. Trial counsel
believed that calling Heinzen would undermine Lightspirit’s case. Trial counsel also testified that
he had discussed not calling Heinzen with Lightspirit, who appeared in agreement with the
decision.
Lightspirit seems to argue that Heinzen himself could have been the perpetrator of the
assault on Perry, rather than Lightspirit. Lightspirit concedes that because Heinzen was not called
as a witness, it is unknown what Heinzen’s testimony would have been. Lightspirit only asserts
that while Heinzen’s prior police statement was not helpful to Lightspirit’s case, that “does not
mean that Mr. Heinzen’s testimony at trial would have been adversarial to [Lightspirit].” Brief for
appellant at 7. In his amended motion for postconviction relief, Lightspirit additionally asserted
that Heinzen would have supported Lightspirit’s theory that other witnesses were lying, but again
he does not detail what Heinzen’s testimony would be.
In addressing this claim, the district court found that Lightspirit did not allege or
demonstrate what information Heinzen would have provided through his testimony. The district
court also noted that trial counsel had discussed calling Heinzen with Lightspirit, and Lightspirit
did not object to trial counsel’s strategy or insist on calling Heinzen. The court found trial counsel’s
testimony on the matter to be credible. The district court concluded that Lightspirit had failed to
show that trial counsel’s decision was deficient and also failed to establish prejudice. The court
noted that there was no reason to believe the result of the proceeding would have been different
given Heinzen’s denial of knowledge about the assault and that three other witnesses testified to
watching Lightspirit commit the assault.
In our review, we find no clear error in the district court’s factual determinations, and we
agree that Lightspirit has failed to show that counsel’s trial strategy was deficient or that failing to
call Heinzen as a witness was prejudicial. The district court did not err in denying this claim of
ineffective assistance of trial counsel.
Next Lightspirit asserts that trial counsel was ineffective for failing to adequately
cross-examine Officer Pachunka.
On direct appeal Lightspirit argued that his trial counsel was ineffective for “failing to
question one of the investigating officers regarding whether he accessed police reports and
documents related to the case after they were first logged into the online police records system.”
See [CITATION]. He also argued that such an examination may have revealed a
possible police bias against him. Id. This court determined that the claim could not be reviewed as
the record did not reveal whether the officer accessed any documents or what information those
documents contained. Id.
In his amended motion for postconviction relief, Lightspirit asserted that Pachunka wrote
police reports that contained misrepresentations; erroneously claimed to have found the alleged
weapon; provided misleading testimony including that an eyewitness knew Lightspirit or identified
him by name; and said that he did not know Lightspirit when Pachunka’s own reports demonstrated
that he had taken Lightspirit to the hospital months prior to assault. Lightspirit alleged that trial
counsel “failed to demonstrate the sloppy police work of Pachunka and other officers to jurors.”
On appeal, Lightspirit argues that trial counsel was deficient by not adequately
cross-examining Officer Pachunka about who found the steel ball used to commit the assault.
However, Lightspirit does not allege what questions his trial counsel failed to ask, stating only that
“there seems to be a lack of probing cross-examination . . . of the investigating officer.” Brief for
appellant at 7.
Although the district court noted in its order that Lightspirit’s claims in his amended
postconviction motion about trial counsel’s performance related to Officer Pachunka appeared to
be different than the claims alleged on direct appeal, the court nevertheless addressed the merits
of this claim. The court found that trial counsel was not deficient and that Lightspirit was not
prejudiced by the alleged lack of cross-examination regarding who found the steel ball first.
In our review, we find that the claims asserted in Lightspirit’s amended postconviction
motion are procedurally barred. The only issue preserved on direct appeal was whether trial
counsel was ineffective for failing to adequately cross-examine Pachunka regarding accessing
police reports and documents that would establish a police bias. Lightspirit did not adduce
evidence regarding this preserved claim. The additional allegations of ineffective assistance of
counsel regarding the cross-examination of Pachunka were not raised on direct appeal. As a result,
those allegations are now procedurally barred. See [CITATION] (motion for postconviction relief cannot be used to secure review of issues that were known
to defendant and which were or could have been litigated on direct appeal).
The district court did not err in rejecting Lightspirit’s postconviction claims that trial
counsel was ineffective for failing to call Heinzen as a witness and failing to adequately
cross-examine Pachunka. This assignment of error fails.
PROCEDURALLY BARRED CLAIMS
Lightspirit assigns that the district court erred in finding the remaining claims raised in his
amended motion for postconviction relief are procedurally barred. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitutional violations that render
the judgment void or voidable. [CITATION]. The need for finality in the criminal process
requires that a defendant bring all claims for relief at the first opportunity. Id. A motion for
postconviction relief cannot be used to secure review of issues that were known to the defendant
and which were or could have been litigated on direct appeal. Id.
In addition to the two claims analyzed above, Lightspirit asserted four additional claims of
ineffective assistance of trial counsel and two claims related to alleged error by the county and
district courts in his amended postconviction motion. Lightspirit was represented by different
counsel on direct appeal. In his brief, Lightspirit makes only the conclusory statement that he
“could not have known that these issues were needed to be raised on appeal. They were not
apparent to [Lightspirit] on the record, and they are not procedurally barred . . .” Brief for appellant
at 5. This argument does little more than restate the allegations of his assignment of error. An
argument that does little more than restate an assignment of error does not support the assignment,
and an appellate court will not address it. [CITATION]. The district court did not err in finding Lightspirit’s remaining claims to be procedurally barred.
This assignment of error fails.
CONCLUSION
We find no clear error in the factual findings of the district court following the evidentiary
hearing, or in its conclusion that Lightspirit’s preserved claims of ineffective assistance of trial
counsel failed. We also find no error in the district court’s determination that the remaining claims
in the amended motion for postconviction relief were procedurally barred.
AFFIRMED.
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
[CITATION]
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
STEVEN D. JENSEN, APPELLANT.
Filed August 13, 2024. No. A-23-939.
Appeal from the District Court for Sarpy County: STEFANIE A. MARTINEZ, Judge.
Affirmed.
Joseph Kuehl, of Lefler, Kuehl, and Burns Law Office, for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Steven D. Jensen appeals from the denial of his motion for postconviction relief without
an evidentiary hearing. He contends that the district court erred in failing to grant him an
evidentiary hearing on his claims that, during his trial for first degree sexual assault, his trial
counsel was ineffective in failing to impeach the victim on her prior inconsistent statements
regarding when the sexual assault occurred and whether C.S. maintained a friendship with a named
friend throughout high school. For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
TRIAL AND SENTENCING
Between the dates of June 1, 2003, and February 15, 2005, Jensen, who was over 19 years
old, allegedly had sexual intercourse with C.S., who was under the age of 16. C.S. reported the
assault in 2019 after which Jensen was charged with first degree sexual assault. During the jury
trial, which was held in October 2021, a significant amount of evidence was presented on whether
the alleged sexual assault occurred when the victim was under the age of 16. This court
summarized the trial evidence in our determination of Jensen’s direct appeal:
The victim testified that she met Jensen through Gillespie-Jensen sometime
between the end of her freshman year to the beginning of her sophomore year of high
school. At that time, Gillespie-Jensen was dating James Ullman who the victim described
as having grey hair and being older than her parents who were in their mid-to-late 30’s.
The victim and Gillespie-Jensen did not dispute that Ullman gave them rides, provided
them with money for shopping trips, had them model for him afterwards, provided them
with alcohol, and had sexual involvement with both girls. The victim testified that
Gillespie-Jensen introduced her to Jensen at Ullman’s residence so that the victim and
Jensen could “get together” which the victim understood to mean something sexual. The
victim testified that, at some point during that evening, Jensen penetrated her. At that time,
the victim testified she was under the age of 16 and Jensen was over the age of 19. The
victim testified that she did not report the incident until 2019 when she learned that Ullman
was a school bus driver, which made her concerned for the safety of other children, and
that she felt it was necessary to include in her report the encounter with Jensen to provide
the police the “whole truth.” The victim stated that she felt bad having to also report Jensen
because she knew that Jensen and Gillespie-Jensen were now married and were attempting
to have a child.
Gillespie-Jensen testified that she met the victim when they were in junior high
school; that the victim was a year older than her; that she met Ullman around that same
time frame; and that she met Jensen online when she was 14 years old, but that she did not
meet Jensen in person until after she was 16 years old. During her testimony, defense
counsel offered multiple photographs into evidence depicting a timeline of events where
Gillespie-Jensen and the victim were together. Based upon this timeline of events,
Gillespie-Jensen testified that she believed the victim was over the age of 16 at the time
Jensen penetrated her. On cross-examination, Gillespie-Jensen admitted that she was
untruthful during her initial interview with Sergeant German concerning when she met
Jensen, whether Jensen knew Ullman, and whether Jensen knew the victim.
The State called the victim’s mother as a rebuttal witness. During this line of
testimony, the State asked questions about a photograph of the victim in her high school
dance uniform which Gillespie-Jensen used in her timeline to suggest the event depicted
occurred during the victim’s senior year. The victim’s mother testified that the victim only
participated in dance during her freshman year and the photo would have been taken during
the victim’s freshman year. This testimony was consistent with the victim’s testimony on
the same subject.
[SEGMENT 3]
[CITATION] The jury
convicted Jensen of first degree sexual assault and Jensen was sentenced to 6 to 12 years’
imprisonment.
DIRECT APPEAL
Jensen, represented by different appellate counsel, timely appealed his conviction and
sentence assigning as error, inter alia, that his trial counsel was ineffective in failing to properly
impeach C.S. on prior inconsistent statements concerning when C.S. met Jensen and whether C.S.
maintained a relationship with Gillespie-Jensen throughout high school. As we noted in our
opinion, “Jensen argues that counsel’s failure to properly impeach the victim governing this
subject matter compromised counsel’s ability to show the jury that the victim was not a reliable
historian as it relates to the age of the victim at the time of Jensen’s alleged sexual assault.” [CITATION]
This court affirmed Jensen’s conviction and sentence and found that his assignments of
error were without merit, except for Jensen’s claims that trial counsel was ineffective for failing
to properly impeach the victim for her prior inconsistent statements regarding when she met Jensen
and whether she maintained a relationship with Gillespie-Jensen throughout high school. We
determined that the record on direct appeal was insufficient to address those ineffectiveness claims
regarding trial counsel’s alleged failure to properly impeach C.S.
POSTCONVICTION
Jensen timely filed this motion for postconviction relief alleging that he was denied
effective assistance of counsel based upon trial counsel’s failure to impeach the victim on prior
inconsistent statements about when the sexual assault occurred, that the sole challenge at trial was
the timing of the sexual assault, and that had counsel properly impeached the victim the admissions
“would certainly have influenced the jury” thereby resulting in “a different verdict.” He also
alleged that trial counsel was ineffective in failing to impeach the victim regarding prior
inconsistent statements about whether or not the victim maintained a friendship with
Gillespie-Jensen throughout high school. He contends that “[t]here was overwhelming evidence
(including C.S.’s prior inconsistent statements) that C.S. and . . . Gillespie-Jensen were friends
throughout high school” and that “[i]n a case that came down to either believe C.S or . . .
Gillespie-Jensen, this was a very significant failure on the part of trial counsel and would have led
the jury to believe . . . Gillespie-Jensen over C.S.”
In October 2021, the district court denied Jensen’s motion for postconviction relief without
an evidentiary hearing. The district court specifically found:
[Jensen’s] first contention is that trial counsel failed to effectively impeach C.S. on
her prior statements to law enforcement and her deposition about when the assault
happened. The record actually refutes this claim, however, and shows that trial counsel was
able to get the information into evidence and impeach C.S. After reviewing the
postconviction motion and the record before it, the Court finds that the same demonstrates
that [Jensen] has not met his burden to articulate facts which would show he is entitled to
relief based on this contention. Further, the Court finds that [Jensen’s] postconviction
motion does not warrant an evidentiary hearing under either of the Strickland prongs.
[Jensen] failed to allege how trial counsel’s actions fell below an objective standard of
reasonableness and, further, how the deficient performance actually prejudiced the case.
With regard to [Jensen’s] second contention, he asserts that trial counsel failed to
effectively impeach C.S. on her prior inconsistent statements about whether or not she
maintained a friendship with . . . Gillespie-Jensen throughout high school. The Court finds
that this claim is procedurally barred as this is a claim that was or could have been litigated
on direct appeal. . . . Further, the Court finds that [Jensen] failed to allege specific facts
which would show he is entitled to relief. His claim is vague and ambiguous, and not
supported by facts. Instead, the claim is merely conclusory in nature.
Jensen has timely appealed to this court.
ASSIGNMENTS OF ERROR
Jensen contends that the district court erred in failing to grant him an evidentiary hearing
on his claims that his trial counsel was ineffective in failing to impeach C.S. on her prior
inconsistent statements regarding when the sexual assault occurred and whether C.S. maintained
a friendship with Gillespie-Jensen throughout high school.
STANDARD OF REVIEW
When a district court denies postconviction relief without conducting an evidentiary
hearing, an appellate court determines de novo whether the petitioner failed to allege sufficient
facts to demonstrate a violation of his or her constitutional rights as to render the judgment void
or voidable and, if so, whether the files and records affirmatively show that he or she is entitled to
no relief. [CITATION]
ANALYSIS
Jensen contends that the district court erred in failing to grant him an evidentiary hearing
on his claims that his trial counsel was ineffective in failing to impeach C.S. on her prior
inconsistent statements regarding when the sexual assault occurred and whether C.S. maintained
a friendship with Gillespie-Jensen throughout high school.
As this court recently stated in [CITATION]:
Postconviction relief is a very narrow category of relief, available only to remedy
prejudicial constitutional violations that render the judgment void or voidable. [CITATION] An evidentiary hearing is not required on a
motion for postconviction relief when (1) the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s constitutional rights rendering
the judgment void or voidable; (2) the motion alleges only conclusions of fact or law
without supporting facts; or (3) the records and files affirmatively show that the defendant
is entitled to no relief. [CITATION]
To prevail on a claim of ineffective assistance of counsel under [CITATION], the defendant must
show that his or her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. [CITATION] To show
that counsel’s performance was deficient, the defendant must show counsel’s performance
did not equal that of a lawyer with ordinary training and skill in criminal law. [CITATION] To show
prejudice, the defendant must demonstrate a reasonable probability that but for his or her
counsel’s deficient performance, the result of the proceeding would have been different. A
reasonable probability does not require that it be more likely than not that the deficient
performance altered the outcome of the case; rather, the defendant must show a probability
sufficient to undermine confidence in the outcome. See id.
And, as this court noted in [CITATION]:
The district court must grant an evidentiary hearing to resolve the claims in a
postconviction motion when the motion contains factual allegations which, if proved,
constitute an infringement of the defendant’s rights under the state or federal Constitution.
[CITATION]. However, the allegations in a motion
for postconviction relief must be sufficiently specific for the district court to make a
preliminary determination as to whether an evidentiary hearing is justified. Id. An
evidentiary hearing is not required on a motion for postconviction relief when (1) the
motion does not contain factual allegations which, if proved, constitute an infringement of
the movant’s constitutional rights rendering the judgment void or voidable; (2) the motion
alleges only conclusions of fact or law without supporting facts; or (3) the records and files
affirmatively show that the defendant is entitled to no relief. Id.
We note that the allegations required for ineffective assistance of counsel claims differ
based upon whether the claims are raised on direct appeal or postconviction. When a claim of
ineffective assistance of trial counsel is raised in a direct appeal, the appellant is not required to
allege prejudice; however, an appellant must make specific allegations of the conduct that he or
she claims constitutes deficient performance by trial counsel. [CITATION]. In connection with a postconviction claim, the claimant must allege specific
allegations of both ineffective assistance of counsel and prejudice. See, [CITATION] (allegations in motion for postconviction relief must be sufficiently
specific for district court to make preliminary determination as to whether an evidentiary hearing
is justified); [CITATION] (motion for postconviction
relief must adequately allege how defendant was prejudiced by counsel’s actions; prejudice is
shown by establishing that but for deficient performance of counsel, there is reasonable probability
that outcome of case would have been different); [CITATION] (in filing motion for postconviction relief, to be entitled to evidentiary hearing,
defendant’s postconviction motion must state facts actually amounting to prejudice); [CITATION] (motion which alleges only conclusions of
facts or law is insufficient).
Applying these standards to this case, we note that in his direct appeal, Jensen was only
required to make specific allegations of the conduct that he claimed constituted deficient
performance by trial counsel; he was not required to allege prejudice. Based upon that standard,
we found that, although the record on direct appeal was insufficient to allow this court to address
Jensen’s allegations that trial counsel was ineffective for failing to properly impeach C.S.
regarding her prior inconsistent statements about when she met Jensen and whether she maintained
[SEGMENT 4]
a relationship with Gillespie-Jensen through high school, his allegations were sufficient to preserve
those claims.
However, in his motion for postconviction relief, Jensen was required to allege both
specific allegations of both ineffective assistance of counsel and prejudice. We now isolate
Jensen’s allegations of ineffective assistance of counsel and the alleged prejudice in order to
determine whether the court erred in failing to provide Jensen with an evidentiary hearing.
PRIOR INCONSISTENT STATEMENTS REGARDING
WHEN ASSAULT OCCURRED
Jensen first assigns and argues that C.S. testified at trial that she first met Ullman when she
was 13 or 14 years old and that it was “maybe a year” after she met Ullman that she first met
Jensen. As Jensen acknowledges, that would squarely fit C.S.’ narrative that she was under the age
of 16 when the incident occurred. But Jensen specifically alleges and argues that police reports
note that C.S. stated to law enforcement “that it was a year, if not two years after she met Ullman.”
And, in her deposition, C.S. testified that she met Jensen a “couple of years” after she met Ullman.
At trial, C.S. testified that she did not remember making that statement to law enforcement.
Jensen’s counsel attempted to impeach C.S. with the aforementioned statements by reading from
them, but the court sustained the State’s objections for improper impeachment. Jensen argues that
his trial counsel’s failure to impeach C.S. with these prior statements constituted ineffective
assistance of counsel and prejudiced Jensen in that, had the jury been able to hear her prior
statements as contained in the police report and her deposition, the outcome of his trial would have
been different. We disagree.
As we previously noted:
To show prejudice, the defendant must demonstrate a reasonable probability that but for
his or her counsel’s deficient performance, the result of the proceeding would have been
different. A reasonable probability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the outcome.
[CITATION]
We find that Jensen’s specific allegations, as a matter of law, fail to demonstrate prejudice.
In making that finding, we first note that C.S. specifically testified that she did not remember
making the statement to law enforcement. Second, because C.S. testified that she was 13 or 14
years old when she first met Ullman, her prior statements do not necessarily contradict the ultimate
fact that she was under the age of 16 when she met Jensen. Third, the statement made by C.S.
during her deposition that she met Jensen a “couple of years” after she met Ullman does not
contradict her testimony as to when she first met Jensen. And fourth, notwithstanding this loose
timeline, C.S. unequivocally testified that she knew that the sexual encounter with Jensen took
place before her 16th birthday because she was dating her boyfriend when she turned 16 and she
was not dating him at the time that Jensen sexually assaulted her. As the State notes in its brief,
C.S.’s boyfriend “was the father of her child, and thus, it is understandable that she would
remember that she was dating him when she turned 16.” Brief for appellee at 12.
When taken together with C.S.’ consistent testimony that the sexual assault took place
anywhere from the end of her freshman year to the beginning of her sophomore year, we find that
Jensen’s claim that his trial counsel was ineffective for failing to impeach C.S. more directly with
the two prior statements does not show a probability that the outcome of his trial was undermined.
As such, we find that the district court did not err in failing to grant an evidentiary hearing
regarding this assignment of error.
PRIOR INCONSISTENT STATEMENT REGARDING
FRIENDSHIP WITH GILLESPIE-JENSEN
Jensen separately assigns and argues that trial counsel was ineffective for failing to
impeach C.S. with a statement by C.S. governing the timeline of events. He argues that C.S.
testified that she met Gillespie-Jensen while in 8th grade but that they drifted apart and did not
remain friends when she was in high school. Jensen argues that, in her deposition, C.S. testified
that they remained friends for “a few years” after meeting. Jensen argues that prior impeachment
governing C.S.’ prior inconsistent statement would have impacted the outcome of the trial. Again,
we disagree.
Upon our review of the record, C.S. testified during the trial that she and Gillespie-Jensen
remained friends during high school and even after high school. She explained that they drifted
apart, likely because they attended different high schools. Additionally, Jensen’s trial counsel
offered several pictures during the trial demonstrating C.S.’ and Gillespie-Jensen’s friendship
during high school and asked questions related to their interactions. Taken together, we find no
prejudice associated with Jensen’s counsel failing to impeach C.S. with her deposition statement
that she and Gillespie-Jensen remained friends “for a few years” after they met. We find that the
district court did not err in failing to grant an evidentiary hearing governing this specific
assignment of error.
CONCLUSION
Having considered and rejected Jensen’s claims of ineffective assistance of trial counsel,
we affirm the district court’s denial of Jensen’s motion for postconviction relief without an
evidentiary hearing.
AFFIRMED.
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IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. [CITATION]
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JAMAAL R. ABRAM, APPELLANT.
Filed January 23, 2024. No. A-22-869.
Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.
Affirmed.
Patrick McCormick for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, Chief Judge, and MOORE and BISHOP, Judges.
MOORE, Judge.
I. INTRODUCTION
Jamaal R. Abram appeals from the order of the district court for Douglas County, denying
his motion seeking postconviction relief following an evidentiary hearing. Finding no error, we
affirm.
II. STATEMENT OF FACTS
. CONVICTION AND SENTENCE
The charges in this case stemmed from events occurring in Omaha, Nebraska, in June 2008,
when the victim was at a cemetery visiting the grave of her boyfriend, a cousin of Abram, who
committed suicide approximately a year prior. A portion of the boyfriend’s extended family
believed the victim was somehow to blame for the boyfriend’s death. While at the cemetery, the
victim was confronted by Abram’s brother and three female companions and forced to go with
them. According to the brother, if anyone in the family encountered the victim, they were to take
her to the boyfriend’s mother because the boyfriend’s mother wanted to talk to her. Over the course
of several hours, Abram’s brother drove the victim to various locations, during which time he
spoke to Abram numerous times by cell phone. According to the trial testimony of Abram’s
brother, Abram told him to take the victim from the cemetery and directed him where to go.
Eventually, Abram’s brother received a call from a cousin (the brother of the deceased boyfriend),
who directed Abram’s brother to a particular isolated, dead-end location. Upon arriving, the
brother observed the vehicle of the cousin who had called him; he did not see anyone in the
cousin’s vehicle. After the brother parked, facing the cousin’s vehicle, an individual, dressed in
black, wearing gloves, and with a small revolver, came out of some nearby bushes. Both the brother
and the victim testified at trial that they recognized this individual as Abram. Abram shot the victim
multiple times. He then left the scene with the cousin in the cousin’s vehicle, and the brother left
in his vehicle. The victim survived her life threatening injuries.
In October 2008, the State filed an information in the district court, charging Abram with
attempted first degree murder, use of a deadly weapon in the commission of a felony, and criminal
conspiracy. Following trial, the jury found Abram guilty on all three charges. Abram’s first
attorney (referred to herein as “trial counsel”) withdrew, and a second attorney (referred to herein
as “appellate counsel”) was appointed to represent Abram for sentencing and direct appeal. The
court then sentenced Abram to consecutive prison sentences of 40 to 50 years, 40 to 50 years, and
20 to 30 years on the three convictions. See [CITATION].
[SEGMENT 5]
. DIRECT APPEAL
Abram, represented by appellate counsel, filed a direct appeal, asserting that there was
insufficient evidence to sustain his convictions for attempted first degree murder and criminal
conspiracy and that he received excessive sentences. This court affirmed Abram’s convictions and
sentences. We also noted that while Abram’s brief included assertions that his trial counsel was
ineffective for failing to object to various jury instructions, no such issue was assigned as error on
appeal. See [CITATION].
. POSTCONVICTION PROCEEDINGS
(a) Postconviction Motion
On May 20, 2014, Abram, through postconviction counsel, filed his operative
postconviction motion. In his first claim, he alleged that he was denied the right to a fair trial in
various ways, including that the trial court made certain errors, that a key witness for the State
perjured himself, and that prosecutorial misconduct occurred when a trial witness was allowed to
perjure himself. In Abram’s second claim, he set forth multiple allegations of ineffective assistance
of trial counsel. Finally, in his third claims, Abram alleged that his appellate counsel was
ineffective for failing to assign as error or argue that he was denied his right to a fair trial pursuant
to the specific allegations of his first claim, failing to assign as error or argue that trial counsel was
ineffective for the reasons specified in his second claim, failing to assign as error that the trial court
presented improper jury instructions, and failing to properly assign errors in his direct appeal brief
that were deemed waived by this court.
Attachments to Abram’s postconviction motion included two letters from Abram’s brother
(one dated August 19, 2011, and the other undated). The August 2011 letter referenced the brother
feeling bad about having done “the unforgivable” to Abram, having dreams of being at Abram’s
trial “snitching,” having “lied on” Abram at his trial, being “brainwashed” by his own attorney,
and being “prepared a million times” before Abram’s trial “so everything would come out just
right,” including having been informed of “what [the victim] said so [the brother’s] lies would
collaborate with hers.”
In the second letter, the brother stated, “Anyway I realize that I made the most [expletive]
decision I ever made in my miserable . . . life by doing what I did and although you say you forgive
me I don’t forgive myself for that.” Later in the second letter, he stated:
Anyway bout that other shit with these lawyers and shit. Really most of it was my lawyer
relaying messages and shit to me about what they was saying. Telling me shit like if I could
give them more people the better off I would be. He used to try and get me to put [two
individuals] in it. He used to come tell me [the victim] said this so you would have to say
the same so your stories would collaborate. He lied and said you was telling on me. Them
[expletives] always used to be in there coaching me reminding me this is what happened
or this is what [the victim] said. I remember @ the trial my lawyer was like this is what the
prosecutor said happened so this is what your [sic] gonna have to say. Bro listen what you
need me to do write an affidavit or something. Just let me know what[’]s up and I will do
it.
He also stated, “Ay [sic] I love you with all my heart and I regret what I did with every second of
every day.”
The third item attached to Abram’s postconviction motion was an affidavit from the mother
of the victim’s deceased boyfriend. In her affidavit, the mother stated that if she had been called
to testify at Abram’s trial, she would have testified that she never spoke with any family member
about bringing the victim to her so they could talk, that she had spoken with the victim on several
occasions after the boyfriend’s death, and that she had the victim’s contact information and could
have contacted her directly if she had wanted to speak with her.
(b) Evidentiary Hearing
An evidentiary hearing was held before the district court on February 6, 2018, and May 28,
2019. The brother and the cousin testified at the hearing. The court also received depositions from
Abram, Abram’s trial and appellate attorneys, and the brother’s trial attorney; affidavits from the
brother and the prosecutor; and copies of the letters from the brother referenced above. We have
set forth details of this evidence as necessary in the analysis section below.
(c) Ruling
On November 1, 2022, the district court entered an order denying Abram’s claims for
postconviction relief. The court identified Abram’s “basic claims” in support of his motion to be
the denial of his right to a fair trial, ineffective assistance of trial and appellate counsel, the perjured
testimony of his brother, and being “[i]nnocent of the [c]rime.” The court found that each of the
issues raised in Abram’s claim to having been denied the right to a fair trial could have been
brought on direct appeal and were thus procedurally barred. Next, the court addressed the issues
raised in Abram’s claims of ineffective assistance of trial counsel and appellate counsel and found
them to be without merit. The court then addressed the issue of the allegedly perjured testimony
of Abram’s brother, who had identified Abram as the shooter at trial, and found no credible
evidence that the State knowingly used perjured testimony to secure Abram’s conviction. The
court specifically found the testimony of Abram’s brother during the evidentiary hearing not
credible. We have set forth further details of the court’s analysis of this issue below. Finally, the
court addressed Abram’s claim of innocence based on his cousin “now claiming for the first time
that he was actually the shooter in this case,” and not Abram or Abram’s brother. The court noted
case law discussing how a possible postconviction claim of actual innocence might be raised. The
court then discussed the relevant evidence in this case, both from trial and the postconviction
evidentiary hearing, and rejected this claim. In doing so, the court found that the “new testimony”
of the brother (the court referenced Abram’s first name here, but given the reference to “new
testimony,” appears to mean the brother) and his cousin was not credible and did not “overcome”
the trial testimony of the victim identifying Abram as the shooter.
Abram perfected the present appeal to this court.
III. ASSIGNMENTS OF ERROR
Abram assigns, restated, that the district court erred when it failed to find that (1) Abram
was denied the right to a fair trial based on certain specified errors by the trial court, Abram’s
brother perjuring himself, and prosecutorial misconduct with respect to knowingly allowing the
brother to give perjured or false testimony; (2) trial counsel was ineffective in various specified
ways; (3) appellate counsel was ineffective for failing to assign as error or argue that Abram was
“denied his right to a fair trial,” failing to assign that “trial counsel was ineffective,” and failing to
assign error “regarding jury instructions”; and (4) Abram’s postconviction assertions of actual
innocence amounted to a violation of his due process rights.
IV. STANDARD OF REVIEW
In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier
of fact, resolves conflicts in the evidence and questions of fact. [CITATION]. An appellate court upholds the trial court’s findings unless they are clearly
erroneous. Id.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which an appellate court reviews independently of the lower court’s ruling. [CITATION].
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law
and fact. [CITATION]. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error. Id. With regard to
the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), an appellate court reviews such legal determinations independently of the lower court’s
decision. [CITATION].
V. ANALYSIS
. DENIAL OF RIGHT TO FAIR TRIAL
In his first assignment of error, Abram asserts that the district court erred when it failed to
find he was denied the right to a fair trial based on certain specified errors by the trial court,
Abram’s brother perjuring himself, and prosecutorial misconduct with respect to knowingly
allowing the brother to give perjured or false testimony. The issues raised in Abram’s first
assignment of error correspond directly to the issues raised in the first claim set out in Abram’s
postconviction motion. The only issue included in Abram’s first claim, but not in his first
assignment of error, is his assertion of trial court error in failing to sustain his trial counsel’s
motions for a directed verdict.
In the order ruling on Abram’s motion for postconviction relief, the district court found
that every one of the issues raised in Abram’s first claim were or could have been litigated on
direct appeal. The court further found that Abram failed to adduce any evidence or establish that
he was entitled to relief on any of those claims. However, in the section of its order addressing
issues raised in Abram’s postconviction brief, the court separately addressed the issue of perjured
testimony by Abram’s brother and whether Abram had carried his burden of proving that the State
knowingly used perjured testimony from the brother to secure Abram’s conviction.
(a) Issues of Trial Court Error Procedurally Barred
We agree with the district court’s determination that the issues of trial court error raised in
Abram’s first postconviction claim are procedurally barred. Postconviction relief is a very narrow
category of relief, available only to remedy prejudicial constitutional violations that render the
judgment void or voidable. [CITATION]. The need for
finality in the criminal process requires that a defendant bring all claims for relief at the first
opportunity. Id. A motion for postconviction relief cannot be used to secure review of issues that
were known to the defendant and which were or could have been litigated on direct appeal. Id. The
issues of trial court error raised in Abram’s first postconviction claim and again in his first
assignment of error are all issues that could have been brought on direct appeal. The district court
did not err in denying this portion of Abram’s first claim.
(b) Perjured Testimony and Prosecutorial Misconduct
At trial, the brother identified Abram as the shooter; in his testimony during the evidentiary
hearing, he indicated that he “wasn’t exactly sure who the shooter was.” The district court observed
that Abram’s postconviction motion relies upon the argument that there was perjured testimony
adduced from his brother at trial and that the State was aware of this perjured testimony. The court
framed the issue as not one of whether the State’s main trial witness recanted his trial testimony
during the postconviction evidentiary hearing, but rather, whether Abram carried his burden of
proving that the State knowingly used perjured testimony from the brother.
Prosecutors are charged with the duty to conduct criminal trials in such a manner that the
accused may have a fair and impartial trial, and prosecutors are not to inflame the prejudices or
excite the passions of the jury against the accused. [CITATION].
[SEGMENT 6]
misconduct encompasses conduct that violates legal or ethical standards for various contexts
because the conduct will or may undermine a defendant’s right to a fair trial. Id. A prosecutor’s
misconduct that prejudices a defendant’s right to a fair trial violates due process. Id.
Where the testimony is in any way relevant to a case, the knowing use of perjured testimony
by the prosecution deprives a criminal defendant of his or her right to a fair trial. [CITATION]. In a postconviction proceeding, the burden is on the
defendant to establish that the prosecution knowingly used false evidence in securing the
conviction. [CITATION] (superseded by statute on other
grounds as stated in [CITATION]).
The district court found that the brother’s testimony during the evidentiary hearing was not
credible. The court stated:
It was apparent [the brother] only answered questions convenient to him and lacked details
about all facts. The timing of his accusations toward the State and his attorney for feeding
him testimony [at trial] should be questioned in that they arose after the statute of
limitations had run and the State could no longer pursue additional charges that had been
dismissed against [the brother] as part of a plea agreement. [The brother’s] testimony is
self-serving as [the brother] admitted several family members had been upset with him for
testifying during the initial trial.
The district court went on to determine that, even assuming the brother’s trial testimony
was false, Abram had presented no evidence that the prosecution knew or should have known his
testimony was false or perjured at the time of trial. In reaching this conclusion, the court noted the
prosecutor’s affidavit attesting to her belief that the information provided by the brother before
trial and his testimony during trial was “truthful and honest” based on his demeanor and the fact
that his testimony was supported by other eyewitnesses. She also stated in her affidavit that while
she may have asked for more detail on specific topics during their meetings, the brother was never
asked or told to testify to anything that was not truthful. The court also noted the deposition
testimony of the brother’s attorney that after the brother entered a plea to charges against him and
prior to Abram’s trial, the brother never recanted or told his attorney he was not being truthful and
that the brother was never told by the attorney or by the State to testify about certain facts during
Abram’s trial. And, the court noted the consistency between the brother’s trial testimony and the
testimony of the victim. Again, the court stated that the brother’s postconviction testimony was
lacking in detail and not credible, and it found no credible evidence that the State knowingly used
perjured testimony to secure Abram’s conviction.
The district court’s assessment of whether Abram met his burden of proving the State
knowingly used perjured testimony to secure his conviction is consistent with our own review of
the record from the evidentiary hearing. Its findings of fact on this issue are not clearly erroneous.
The court did not err in denying the portion of Abram’s first postconviction claim relating to the
allegedly perjured testimony of his brother and the issue of prosecutorial misconduct.
. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
In his second assignment of error, Abram asserts that the district court erred when it failed
to find that trial counsel was ineffective in various specified ways. In this assignment of error,
Abram sets forth allegations of ineffective assistance of trial counsel that correspond to 12 of the
14 issues of trial counsel ineffectiveness raised in the second claim of his postconviction motion.
Although Abram apparently did not directly address his second claim in his postconviction brief,
the district court addressed each of the issues of trial counsel ineffectiveness raised in Abram’s
second claim. However, we decline to do so. When a defendant’s trial counsel is different from
his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial
counsel’s ineffective performance which is known to the defendant or is apparent from the record;
otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding. [CITATION]. See, also, [CITATION] (where first attorney withdrew and second attorney represented defendant
during hearing on motion to withdraw plea, at sentencing, and on direct appeal, defendant was
required to allege claims of ineffective assistance of first attorney on direct appeal). Abram was
represented by different counsel on direct appeal. Abram did not properly raise any issues of
ineffective assistance of trial counsel on direct appeal. Each of the issues of trial counsel
ineffectiveness identified in Abram’s second assignment of error was known to Abram at the time
of his trial and could have been raised on direct appeal. Abram’s claims of ineffective assistance
of trial counsel are procedurally barred.
. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Abram raised issues of ineffective assistance of appellate counsel in the third claim of his
postconviction motion. It was his first opportunity to do so. Claims of ineffective assistance of
appellate counsel may be raised for the first time on postconviction review. [CITATION].
When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin
by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced
the defendant. [CITATION]. Counsel’s failure to raise
an issue on appeal could be ineffective assistance only if there is a reasonable probability that
inclusion of the issue would have changed the result of the appeal. Id.
The district court denied Abram’s third claim, based on its analysis of his claims of
ineffective assistance of trial counsel and denial of the right to a fair trial, which showed that those
claims would not have had merit on direct appeal. The court also noted the deposition testimony
of Abram’s appellate counsel with respect to counsel’s thoughts on the strength of Abram’s appeal.
Appellate counsel testified that his “initial thought” after reviewing the trial evidence was that he
had “really not much to argue to an appellate court.”
Abram asserts that the district court erred when it failed to find that appellate counsel was
ineffective for “failing to assign as error or argue that Abram was denied his right to a fair trial,”
“failing to assign as error or argue that trial counsel was ineffective,” and “failing to assign error
regarding jury instructions.”
To be considered by an appellate court, an alleged error must be both specifically assigned
and specifically argued. [CITATION]. The third
assignment of error is vaguely stated and does not specifically incorporate the previously alleged
deficiencies by trial counsel. On that basis, we could disregard the assigned error. Nevertheless,
even when considering Abram’s supporting arguments, we conclude the third assigned error must
fail due to lack of specificity.
Abram’s argument in support of his third assignment of error adds little in the way of
specificity. The totality of his argument with respect to ineffective assistance of appellate counsel
is as follows:
The district court erred and abused discretion when it failed to find ineffective
assistance of appellate counsel. Appellate counsel was ineffective for failing to assign as
error or argue that [Abram] was denied his right to a fair trial, the jury instruction issues,
and that trial counsel was ineffective as set forth above in the sections of this brief above.
Appellate counsel failed to assign as error that the district court presented improper
jury instructions, which failed to accurately set forth the law, did not conform to the NJI2d
Crim. Model Jury Instructions and prejudiced [Abram]. Appellate counsel failed to
properly assign errors in his appeal brief that were deemed waived by the Nebraska Court
of Appeals, prejudicing [Abram].
This argument does little more than restate the allegations of his assignment of error. An argument
that does little more than restate an assignment of error does not support the assignment, and an
appellate court will not address it. [CITATION].
Even if we turn to the argument sections in support of Abram’s first and second
assignments of error (concerning the denial of a fair trial and ineffective assistance of trial counsel),
we note that Abram does not specifically argue each of the issues specifically raised in his first
and second assignments of error. And, many of the arguments presented in support of his first two
assignments of error consist only of conclusory statements. For purposes of this third assignment
of error, those conclusory statements do not show a reasonable probability that had his appellate
counsel assigned those issues as error, the result of the direct appeal would have been different.
Conclusory assertions unsupported by coherent analytical argument fail to satisfy the requirement
of arguing an assigned error to obtain consideration by an appellate court. [CITATION].
And, Abram does not argue, specifically or otherwise, each of the issues specifically raised in his
first and second assignments of error.
Because of the generalized and vague nature of Abram’s third assignment of error, his
failure to include an argument in support of that error that does little more than restate the assigned
error, and the conclusory nature of much of the argument in support of Abram’s first and second
assignments of error, we decline to address Abram’s third assignment of error further.
. ACTUAL INNOCENCE
Abram assigns that the district court erred when it failed to find that his postconviction
assertions of actual innocence amounted to a violation of his due process rights. This assignment
of error is based on the cousin’s assertions made during the evidentiary hearing that the cousin was
actually the shooter. The district court addressed this issue in its order denying postconviction
relief, but it noted that Abram’s motion did not mention any claim that the cousin was the shooter
or that Abram was actually innocent. The only mention of the cousin in Abram’s postconviction
motion was his assertion that his trial counsel was ineffective for failing to depose the cousin. The
court stated, “If this claim had any legs, it would have been raised in trial, [Abram’s] appeal, and
[SEGMENT 7]
[Abram’s] initial [postconviction motions].” The court did, however, go on to address the claim of
actual innocence that developed during the course of the evidentiary hearing.
In addressing the claim, the district court first noted “[the cousin’s] self-serving
[postconviction] testimony that is protected by double jeopardy as [the cousin] will be shortly
released from prison from his sentence related to this case.” The court also noted the “ever
changing” testimony from these family members about the shooter’s identity. Specifically, the
court noted that during trial, Abram and his brother each identified the other as being the shooter;
in his postconviction testimony, the brother testified that he was not certain as to the shooter’s
identity, although he knew three men were there; the cousin testified in the postconviction
proceedings that he was the shooter; and Abram’s postconviction testimony states that his trial
testimony was truthful. The court also noted the strength of the victim’s trial testimony identifying
Abram as the shooter. In that regard, the court noted that the victim knew Abram well, she
recognized his appearance and voice, she spoke his nickname during the incident, and he
responded by telling her not to say his name and shooting her. The court concluded that the new
testimony of the brother and the cousin was not credible and did not overcome the trial testimony
of the victim with respect to Abram being the shooter. Accordingly, the court denied Abram’s
claim of actual innocence.
We are not convinced that Abram raised a claim of actual innocence in his postconviction
motion. In an appeal from the denial of postconviction relief, an appellate court will not consider
for the first time on appeal claims that were not raised in the verified motion. [CITATION]
However, because this issue was addressed by the district
court and is addressed by both parties in their briefs on appeal, we consider it briefly.
A claim of actual innocence may be a sufficient allegation of a constitutional violation
under the Nebraska Postconviction Act. [CITATION] The
essence of a claim of actual innocence is that the State’s continued incarceration of such a
petitioner without an opportunity to present newly discovered evidence is a denial of procedural
or substantive due process. [CITATION] The threshold to entitle a prisoner to an evidentiary hearing on a
postconviction claim of actual innocence is extraordinarily high. [CITATION] Such a petitioner must make
a strong demonstration of actual innocence because after a fair trial and conviction, the
presumption of innocence vanishes. [CITATION]
The district court found that the postconviction testimony of the cousin and the brother was
not credible and that the evidence presented in the evidentiary hearing that someone other than
Abram was the shooter did not overcome the strength of the victim’s trial testimony identifying
Abram as the shooter. The court’s findings are consistent with our own review of the evidence and
are not clearly erroneous. The court did not err in denying Abram’s claim of actual innocence.
VI. CONCLUSION
We find no clear error in the factual findings of the district court following the evidentiary
hearing. The court did not err in denying Abram’s motion for postconviction relief.
AFFIRMED.
(Note: As there was no specific part of a court ruling provided, the correct steps have still been demonstrated below based on the instruction.)
Original Text Example:
"In the matter of People v. Whitaker, 2024 IL App (1st) 232009, the court decided... In comparison, the ruling in state-v-galindo was cited frequently. Another related case, People v. Deleon, 2018 IL App (2d) 172343, also contributes to the understanding. Furthermore, Whitaker provides some context, but Jackson v. Board of Election Commissioners, 2012 IL -9- offers a different perspective."
Processed Text:
"In the matter of [CITATION], the court decided... In comparison, the ruling in [CITATION] was cited frequently. Another related case, [CITATION], also contributes to the understanding. Furthermore, [CITATION] provides some context, but [CITATION] offers a different perspective."
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/09/2024 09:07 AM CST
- 563 -
Nebraska Court of Appeals Advance Sheets
Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
State of Nebraska, appellee, v.
Wilbur L. Jackson, appellant.
___ N.W.2d ___
Filed January 9, 2024. No. A-22-903.
. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under [CITATION], the defendant must show that
his or her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense.
. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To show prejudice under the prejudice component of [CITATION],
the defendant must demonstrate a reasonable probability that but for - 564 -
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Nebraska Appellate Reports
STATE V. [CITATION]
Cite as 32 Neb. App. 563
his or her counsel’s deficient performance, the result of the proceeding
would have been different. A reasonable probability does not require
that it be more likely than not that the deficient performance altered
the outcome of the case; rather, the defendant must show a probability
sufficient to undermine confidence in the outcome.
7. Postconviction. The defendant’s verified motion for postconviction
relief is the operative filing before the district court in considering
whether to grant an evidentiary hearing.
8. Postconviction: Appeal and Error. A postconviction court does not
err by failing to consider claims not made in the operative motion for
postconviction relief, which are instead raised in other filings.
9. Postconviction: Effectiveness of Counsel: Appeal and Error. When
a person seeking postconviction relief has different counsel on appeal
than at trial, the motion for postconviction relief is procedurally barred
if the person seeking relief (1) knew of the issues assigned in the post-
conviction motion at the time of the direct appeal, (2) failed to assign
those issues on direct appeal, and (3) did not assign as error the failure
of appellate counsel on direct appeal to raise the issues assigned in the
postconviction motion.
10. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise
a claim on appeal of ineffective assistance of trial counsel (a layered
claim of ineffective assistance of counsel), an appellate court will look
at whether trial counsel was ineffective under the two-part test for
ineffectiveness established in [CITATION]; if trial counsel was not inef-
fective, then the defendant was not prejudiced by appellate counsel’s
failure to raise the issue.
11. Appeal and Error. Generally, an appellate court will find plain error
only when a miscarriage of justice would otherwise occur.
12. Effectiveness of Counsel. Defense counsel is not ineffective for failing
to raise an argument that has no merit.
13. Postconviction: Appeal and Error. The appellate court will not con-
sider allegations not presented to the district court for disposition
through the defendant’s verified motion for postconviction relief or
passed upon by the postconviction court.
Appeal from the District Court for Cass County: Michael
A. Smith, Judge. Affirmed.
Wilbur L. Jackson, pro se. - 565 -
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Nebraska Appellate Reports
[CITATION]
Cite as 32 Neb. App. 563
[SEGMENT 8]
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Moore, Judge.
INTRODUCTION
Wilbur L. Jackson appeals from the order of the district
court for Cass County, which denied his motion for postconvic-
tion relief without an evidentiary hearing. For the reasons set
forth herein, we affirm.
STATEMENT OF FACTS
On March 20, 2020, Jackson was charged by information
with six counts: driving under the influence of alcohol, fifth
offense/aggravated; violating the terms of an ignition interlock
order, with a habitual criminal allegation; leaving the scene of
an accident; reckless driving, second offense; false reporting;
and refusal to submit to a preliminary breath test.
On March 23, 2020, Jackson’s trial counsel filed a motion
to quash the information, alleging the ignition interlock charge
could not be enhanced under the habitual criminal statute with-
out violating established precedent prohibiting double penalty
enhancement. In an order entered on April 9, the district court
denied the motion to quash, finding that there was no “‘stack-
ing’” of enhancements regarding the ignition interlock charge,
as Jackson was subjected to an ignition interlock order due to
a prior conviction. The court reasoned that it was the violation
of that order that was prohibited and punished, not the crime
which had triggered the ignition interlock order.
A bench trial was held on September 30, 2020. The evi-
dence adduced at trial established that on February 3, Jackson
was driving eastbound on U.S. Highway 34 in Cass County
when he moved onto the right shoulder and then made an
abrupt U-turn without signaling, striking another eastbound
vehicle that was traveling behind Jackson and pushing that - 566 -
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STATE V. [CITATION]
Cite as 32 Neb. App. 563
vehicle toward oncoming traffic and into a field where it
struck an embankment. [CITATION] did not stop.
Approximately 5 minutes after the accident, a sheriff’s
deputy, responding to a witness’ call to the 911 emergency dis-
patch service, stopped [CITATION]’s vehicle. [CITATION] denied being
involved in an accident and told the deputy that his brother
had picked him up 5 minutes prior in Shenandoah, Iowa,
approximately 100 miles from the accident site. The deputy
detected the odor of alcohol, along with other mannerisms
indicative of alcohol consumption, and began a driving under
the influence of alcohol investigation. Though [CITATION] agreed
to a preliminary breath test, he repeatedly used his tongue to
block the airflow into the straw and pulled his head back so
that he was not blowing enough air to give a sufficient sample.
The deputy subsequently arrested [CITATION] and transported
him to take a chemical breath test, which demonstrated a .239
breath alcohol content.
Douglas County court records from a 2016 criminal case
and various Nebraska Department of Motor Vehicle records
established that [CITATION]’s license had been revoked for 15
years and he was permitted to drive only with an ignition inter-
lock device. The deputy testified that [CITATION]’s vehicle had no
such device.
On October 7, 2020, the district court entered a judg-
ment of conviction, finding [CITATION] guilty of all counts but
count II, violating the terms of an ignition interlock order
with a habitual criminal allegation, in violation of Neb. Rev.
Stat. § 60-6,211.11 (Cum. Supp. 2018). The court noted that
pursuant to previous court orders, [CITATION]’s driving privi-
leges had been revoked and not yet reinstated. [CITATION] was
allowed to obtain an ignition interlock permit and operate
motor vehicles equipped with an ignition interlock device.
The court noted that Nebraska Supreme Court precedent holds
that § 60-6,211.11 applies only to those who have interlock
permits, with a different statute applying to those who do not
have permits. The court observed that the vehicle driven by - 567 -
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STATE V. [CITATION]
Cite as [CITATION]
Jackson at the time of the offense did not have an ignition
interlock device and that Jackson had not obtained an ignition
interlock permit. Thus, Jackson did not violate § 60-6,211.11,
because it was inapplicable to him.
A sentencing hearing was held on December 21, 2020.
Following argument from the State and Jackson, the district
court asked, “Counsel, we . . . overlooked something here
going forward. I think because . . . the way this case happened,
that I took it under advisement, we didn’t enhance[]. Is the
State prepared to go forward with that?”
After a brief recess, the State offered certified copies of
Douglas County District Court records evidencing Jackson’s
four prior driving under the influence of alcohol convictions
and one reckless driving conviction. The court received the
exhibits and found that they properly enhanced count I, driv-
ing under the influence of alcohol, fifth offense/aggravated, as
well as count IV, reckless driving, second offense.
The district court then sentenced Jackson to a term of 15
to 20 years’ imprisonment for driving under the influence of
alcohol, a term of 6 months’ imprisonment for leaving the
scene of an accident, a term of 6 months’ imprisonment for
reckless driving, a term of 1 year’s imprisonment for false
reporting, and a fine of $100 for refusal to submit to a pre-
liminary breath test. The court ordered that the sentences be
served concurrently, and Jackson was given 323 days’ credit
for time served.
On direct appeal, and represented by different counsel,
Jackson alleged that the district court abused its discretion by
imposing excessive sentences and that there was insufficient
evidence adduced at trial to find him guilty of false reporting.
This court summarily affirmed the district court’s order on
November 3, 2021, in case No. [CITATION].
On June 27, 2022, Jackson, now self-represented, filed
a motion for postconviction relief. In that motion, Jackson
presented claims with respect to his trial and appellate coun-
sel’s failure to contest the State’s presentation of evidence - 568 -
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Nebraska Appellate Reports
[CITATION]
Cite as 32 Neb. App. 563
regarding the habitual criminal enhancement. Jackson also
alleged that his appellate counsel should have argued on direct
appeal that the ignition interlock charge lacked “‘mens rea’”
as determined by the district court, due to its inconsistency
with § 60-6,211.11, and that his appellate counsel did not
review the record, instead using the brief drafted by his trial
counsel for the direct appeal. Jackson further alleged that the
district court committed plain error by engaging in “ex parte
actions” during enhancement, his trial counsel was ineffective
for failing to object to these actions, and his appellate counsel
was ineffective in failing to raise the claim on direct appeal.
The motion for postconviction relief requested an evidentiary
hearing and the appointment of counsel.
On July 11, 2022, the district court entered an order that
deferred its ruling on Jackson’s motion for postconviction
relief until the State had an adequate opportunity to respond.
The court ordered the State to submit a written response by
September 8 and noted that Jackson’s motion for postconvic-
tion relief would be taken under advisement at that time. The
State filed its answer to Jackson’s motion on July 25.
On August 25, 2022, Jackson filed a reply and objection to
the State’s answer. This reply included new claims not asserted
in his original motion for postconviction relief. Jackson alleged
that his trial counsel was ineffective by failing to assert a
facial and as-applied constitutional challenge of the habitual
criminal enhancement. Jackson also alleged that his appel-
late counsel was ineffective by failing to raise the claims on
direct appeal and that the performance of his appellate counsel
amounted to “structural error,” for which Jackson did not need
to make a showing of prejudice. Jackson also reasserted his
claim that his trial counsel was ineffective in failing to object
to judicial misconduct and his appellate counsel had failed to
raise the claim on direct appeal. The reply requested that the
district court liberally construe the claims in his motion for
postconviction relief or, in the alternative, for leave to amend
Jackson’s motion for postconviction relief. - 569 -
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Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
On November 4, 2022, Jackson filed a renewed motion to
amend and for declaratory relief. The renewed motion again
requested leave to amend his motion for postconviction relief
and asked the district court to find the Nebraska Postconviction
Act unconstitutional as it violated Jackson’s due process
and equal protection rights by failing to construe pro se fil-
ings liberally.
On November 14, 2022, the district court entered an order
denying Jackson’s motion for postconviction relief. We have
set forth details of the court’s reasoning in the analysis sec-
tion below.
Jackson appeals.
ASSIGNMENTS OF ERROR
Jackson assigns that the district court erred by (1) not grant-
ing Jackson leave to amend his motion for postconviction
relief; (2) denying Jackson’s motion for postconviction relief
without an evidentiary hearing; and (3) failing to find the
Nebraska Postconviction Act unconstitutional as it applied to
Jackson as a pro se litigant.
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights or that the record and files
affirmatively show that the defendant is entitled to no relief.
State v. Galindo, [CITATION]
ANALYSIS
Requests for Leave to Amend.
Jackson first assigns that the district court erred by fail-
ing to grant him leave to amend his postconviction motion to
“amplify and restate his claims with more certainty.” Brief for
appellant at 11. Jackson argues that his amended postconvic-
tion motion related back to his original motion, that he had
not previously amended his original motion, and that he was - 570 -
Nebraska Court of Appeals Advance Sheets
[SEGMENT 9]
Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
within the 1-year statute of limitations to assert or reassert
claims for relief.
Jackson twice made a request that the district court give
him leave to amend his motion for postconviction relief. As
detailed above, Jackson’s reply and objection to the State’s
answer, and his renewed motion to amend, were filed after the
State filed its answer to Jackson’s motion for postconviction
relief. The district court previously entered an order deferring
its ruling on Jackson’s motion for postconviction relief and
stating that the matter would be taken under advisement at
the time the State submitted a written response to Jackson’s
original motion. Jackson’s first request to amend was filed
31 days after the State’s answer was filed, and thus, the first
request was filed after the matter had been submitted to the
district court for decision. His renewed motion to amend was
filed 102 days after the State’s answer. Although the district
court did not specifically address Jackson’s requests for leave
to amend in its order denying the evidentiary hearing, we
find no abuse of discretion in the court’s implicit denial of
these requests.
In [CITATION], the Nebraska Supreme Court distinguished postconviction
cases from other civil proceedings, holding that a postconvic-
tion action is not an ordinary civil action and that, as such,
the liberal pleading rules that govern civil actions are incon-
sistent with postconviction proceedings. The court found that
postconviction relief is a very narrow category of relief and is
intended to provide relief in those cases where a miscarriage
of justice may have occurred, and not to be a procedure to
secure a routine review for any defendant dissatisfied with his
or her sentence. The Supreme Court explicitly held in [CITATION],
that when a district court refuses to grant
leave to amend an original postconviction motion, an appellate
court reviews that decision for an abuse of discretion, and not
pursuant to the civil pleading rules regarding amendment. - 571 -
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STATE V. JACKSON
Cite as 32 Neb. App. 563
This court has previously held that a district court did not
abuse its discretion in denying a motion to amend when such
motion was filed after the court had already entered an order
denying an evidentiary hearing. See [CITATION]. Additionally, this court has
held that a district court did not abuse its discretion in denying
a motion to amend when such motion was filed before the dis-
trict court had entered an order denying the evidentiary hear-
ing, but well after the court had taken the original motion for
postconviction relief under advisement. See [CITATION].
Jackson did not ask to amend his motion for postconvic-
tion relief at any point prior to the State’s filing its answer,
even though by the time of this filing, his original motion for
postconviction relief had been pending for a month. Instead,
Jackson waited 31 days after the matter had been submitted to
the court for consideration to make his first request to amend.
He provides no indication that such new claims were not avail-
able to him prior to the State’s filing its answer to his original
motion. Given this timing, we do not find that the district court
abused its discretion in implicitly denying Jackson’s requests
for leave to amend. This assignment of error fails.
Motion for Postconviction Relief.
Jackson next assigns that the district court erred in deny-
ing his motion for postconviction relief without an eviden-
tiary hearing. Before turning to Jackson’s specific claims,
we briefly review the legal framework that governs appeals
from the denial of postconviction relief without an eviden-
tiary hearing.
[2,3] Postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional vio-
lations that render the judgment void or voidable. [CITATION]. An eviden-
tiary hearing is not required on a motion for postconviction - 572 -
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STATE V. JACKSON
Cite as 32 Neb. App. 563
relief when (1) the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable;
(2) the motion alleges only conclusions of fact or law without
supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief. [CITATION].
[4-6] To prevail on a claim of ineffective assistance of
counsel under [CITATION], the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defend
ant’s defense. [CITATION]. To show that counsel’s
performance was deficient, the defendant must show coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. [CITATION]. To show prejudice, the
defendant must demonstrate a reasonable probability that but
for his or her counsel’s deficient performance, the result of
the proceeding would have been different. A reasonable prob-
ability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather,
the defendant must show a probability sufficient to undermine
confidence in the outcome. See [CITATION].
[7,8] Jackson raised additional claims in his reply and
objection to the State’s answer that were not asserted in
his original motion for postconviction relief. The defendant’s
verified motion for postconviction relief is the operative fil-
ing before the district court in considering whether to grant an
evidentiary hearing. [CITATION]. A postconviction court does
not err by failing to consider claims not made in the operative motion for post-
conviction relief, which are instead raised in other filings. [CITATION].
Thus we address only those claims Jackson has both asserted
in his motion for postconviction relief and specifically argued
in this appeal.
On appeal, Jackson asserts that the district court’s denial
of his motion for postconviction relief without an evidentiary - 573 -
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STATE V. JACKSON
Cite as 32 Neb. App. 563
hearing was in error, because his trial counsel was ineffec-
tive for failing to adequately challenge the habitual criminal
allegation for the purposes of the ignition interlock charge.
Jackson argues that trial counsel’s motion to quash was not
the proper method by which to challenge the enhancement.
Jackson contends that he was prejudiced by his trial coun-
sel’s deficient performance, because he would have insisted
on going to trial and then entered a plea deal with the State,
which would have resulted in a reduced sentence. Jackson
also argues that his appellate counsel was ineffective in fail-
ing to assign this claim of ineffective assistance as error on
direct appeal.
[9] Jackson was represented by different counsel on appeal
than at trial. When a person seeking postconviction relief has
different counsel on appeal than at trial, the motion for post-
conviction relief is procedurally barred if the person seeking
relief (1) knew of the issues assigned in the postconviction
motion at the time of the direct appeal, (2) failed to assign
those issues on direct appeal, and (3) did not assign as error
the failure of appellate counsel on direct appeal to raise the
issues assigned in the postconviction motion. [CITATION] Because Jackson has
presented a layered ineffective assistance of counsel claim, we
proceed to address the merits of his argument.
In its order denying Jackson’s postconviction motion without
an evidentiary hearing, the district court found that Jackson’s
allegation related to the enhancement on the ignition interlock
charge was conclusory. The district court stated that Jackson’s
contention regarding the possibility of a more favorable plea
offer by the State was “a conclusion of fact for which there
is no basis in the record.” The district court also noted that
Jackson had been found not guilty of the ignition interlock
charge. We agree.
Jackson is unable to make a showing of prejudice on this
claim. Jackson’s trial counsel did file a motion to quash in
an attempt to remove the habitual criminal enhancement prior - 574 -
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Cite as 32 Neb. App. 563
to trial, although that motion was denied by the district court.
However, as the district court noted, Jackson was never subject
to a habitual criminal enhancement, because he was found not
guilty of the ignition interlock offense alleged in count II, the
only charge to which the habitual criminal enhancement was
attached. Jackson does not specifically argue what his trial
counsel should have done differently or upon what grounds an
alternative course of trial strategy would have been successful.
He makes speculative assertions without any factual support
from the record that had the habitual criminal allegation been
removed by trial counsel prior to trial, the State would have
offered Jackson a favorable plea deal. See [CITATION].
[10] Because we find that Jackson’s trial counsel was not
ineffective in this regard and that Jackson cannot show preju-
dice, his appellate counsel was not ineffective in failing to
raise the claim on direct appeal. When a claim of ineffective
assistance of appellate counsel is based on the failure to raise
a claim on appeal of ineffective assistance of trial counsel (a
layered claim of ineffective assistance of counsel), an appel-
late court will look at whether trial counsel was ineffec-
tive under the two-part test for ineffectiveness established in
[CITATION]; if trial counsel was not ineffective, then
the defendant was not prejudiced by appellate counsel’s failure
to raise the issue. [CITATION].
Next, Jackson asserts that the district court’s denial of his
motion for postconviction relief without an evidentiary hear-
ing was in error, because his trial counsel was ineffective in
failing to object to judicial misconduct. Jackson points to the
district court’s directing the State to present its evidence for
enhancement related to the driving under the influence of
alcohol charge at sentencing. Jackson alleges that the district
court committed plain error by engaging in ex parte actions
and thus violating the Nebraska Revised Code of Judicial
Conduct. Jackson also argues that his appellate counsel was - 575 -
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Cite as 32 Neb. App. 563
ineffective in failing to assign this claim of ineffective assist
ance as error on direct appeal. Had his appellate counsel
assigned this claim, Jackson contends, then his direct appeal
would have favored him.
In its order, the district court found that Jackson’s allega-
tions regarding perceived irregularities at the sentencing hear-
ing did not constitute a violation of Jackson’s constitutional
rights or show that Jackson was entitled to relief.
[11] Generally, an appellate court will find plain error only
when a miscarriage of justice would otherwise occur. [CITATION]. A review
of the record reveals that the district court did not direct the
State to present its enhancement evidence. Rather, the district
court observed that enhancement had not yet occurred and
inquired as to whether the State wished to proceed with its
enhancement evidence. Although the Nebraska Revised Code
of Judicial Conduct prohibits judicial ex parte communica-
tions, the inquiry in this case occurred on the record during a
sentencing hearing where all parties were present. The record
affirmatively refutes that the district court engaged in ex parte
communications, and Jackson cites to no other authority for the
basis of the alleged judicial misconduct.
[12] We do not find that the district court’s actions amount
to plain error, and as such, Jackson’s trial counsel was not
ineffective in failing to object and his appellate counsel was
not ineffective in failing to raise the claim on direct appeal.
Defense counsel is not ineffective for failing to raise an argu-
ment that has no merit. [CITATION].
Jackson also argues that the district court’s denial of his
motion for postconviction relief without an evidentiary hear-
ing was in error, because his appellate counsel was ineffec-
tive for failing to review the record and using an appellate
brief authored by Jackson’s trial counsel. Jackson asserts that
had his appellate counsel minimally investigated the facts
of the case, he would have discovered many errors. Jackson - 576 -
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Cite as 32 Neb. App. 563
contends that these actions amount to deficient performance
“causing a detrimental disposition during direct appeal
against [him].”
Though the district court did not specifically address this
claim in its order, it did find that all claims raised by Jackson’s
motion for postconviction relief were “procedurally barred,
insufficiently pled, [or] affirmatively refuted by the record, or
[that Jackson] cannot establish prejudice.”
We agree that this claim is insufficiently pled. Jackson has
not specified what errors his appellate counsel should have
discovered or how using a brief allegedly prepared by his trial
counsel caused a detrimental disposition. Jackson does not
detail arguments he believes his appellate counsel could have
successfully set forth in a brief on appeal.
Because Jackson’s claims asserted in his motion for postcon-
viction relief are unable to establish that he suffered prejudice,
are affirmatively refuted by the record, or are insufficiently
pled, Jackson was not entitled to an evidentiary hearing. The
district court did not err in so finding. This assignment of
error fails.
Constitutional Claim.
Finally, Jackson assigns that the district court erred in
failing to find the Nebraska Postconviction Act unconstitu-
tional as it applied to Jackson as a pro se litigant. Jackson
first raised his constitutional claim regarding the Nebraska
Postconviction Act in his renewed motion to amend and for
declaratory relief. The district court did not address this claim
in its order denying the evidentiary hearing. As we discussed
above, a defendant’s verified motion for postconviction relief
is the operative filing before the district court in considering
whether to grant an evidentiary hearing. See [CITATION].
Additionally, Jackson was not given leave by the district court
to amend his original motion for postconviction relief, which
implicit ruling we have found did not constitute an abuse of
discretion. Thus, - 577 -
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the district court did not err in failing to address Jackson’s
constitutional claim.
[13] Furthermore, the appellate court will not consider
allegations not presented to the district court for disposition
through the defendant’s verified motion for postconviction
relief or passed upon by the postconviction court. See [CITATION]. This
assignment of error fails.
CONCLUSION
The district court did not err in denying Jackson’s motion
for postconviction relief without an evidentiary hearing.
Affirmed.
2023 IL App (1st) 220372
No. 1-22-0372
Opinion filed December 22, 2023
SIXTH DIVISION
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
)
v. ) No. 00 CR 1357201
)
)
ABDUL MALIK MUHAMMAD, ) Honorable
) Lawrence Flood,
Defendant-Appellant. ) LeRoy K. Martin, Jr.
) Erica L. Reddick,
) Judges Presiding
______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justice C.A. Walker concurred in the judgment and opinion.
Justice Tailor concurred in part and dissented in part, with opinion.
OPINION
¶1 For more than two decades, scores of criminal convictions in Chicago have been reversed
due to confessions elicited through torture. This appeal involves allegations of a tortured
confession and a conflict of interest by the special prosecutor appointed to probe it. Our
determination of these two issues impacts the fairness, transparency, and effectiveness of the
process established to redress a notorious injustice that has blemished the reputation of the
Chicago Police Department and the overwhelming majority of officers who faithfully serve
with honor. 1-22-0372
¶2 Abdul Malik Muhammad, convicted of a 1999 shooting death, made allegations to the
Illinois Torture Inquiry and Relief Commission that police officers of Area 2 extracted a
statement from him through torture. In 2018, the Commission supported Muhammad’s claim,
which required Muhammad to move the circuit court to appoint a Special State’s Attorney. In
similar cases, [CITATION] was named the Special State’s Attorney. [CITATION]’s appointment
followed the decision by the Cook County State’s Attorney’s Office that it could not be involved
because an alleged torturer of Muhammad, Detective Michael McDermott, had worked for the
State’s Attorney’s office as an investigator after he retired from the Chicago Police Department.
¶3 [CITATION] later filed a motion to terminate the proceedings, arguing that Muhammad’s
“confession” fell outside the Act’s purview. The circuit court granted [CITATION]’s motion without
an evidentiary hearing.
¶4 Meantime, Muhammad’s counsel challenged [CITATION] as having a conflict of interest like that
of the State’s Attorney’s Office and sought to rescind [CITATION]’s appointment. The circuit court
denied several attempts to remove him.
¶5 Muhammad argues that the circuit court erred in dismissing his claim without an evidentiary
hearing and refusing to remove [CITATION] due to an actual conflict of interest. We agree because
[CITATION] is in the unusual position of having to judge himself and those who were his subordinates.
¶6 At the evidentiary hearing on remand, the circuit court should decide the merits of
Muhammad’s claim that he was tortured into giving the statement as well as the possible Brady
violation relating to the State’s alleged failure to disclose that Muhammad participated in
multiple lineups in which several witnesses did not identify him.
1-22-0372
¶7 While the panel is unanimous on the disposition concerning the evidentiary hearing on
remand, there is disagreement on the second issue involving Milan’s conflict of interest. In light
of all that Milan has disclosed in the record, we find that his staying on as special prosecutor
violates Muhammad’s right to a prosecutor unencumbered by conflicting loyalties and
potentially prejudicial inclinations.
¶8 The dissent, however, finds no grounds to remove Milan. This approach deprives
Muhammad of his right to a prosecutor unencumbered by conflicting loyalties and potentially
prejudicial inclinations, all of which cast doubt on the integrity and legitimacy of the entire
process. Had Milan been forthcoming at the hearing on his appointment, the judge, with input
from Muhammad’s counsel, would have been able to resolve his eligibility to serve. Instead,
Milan remained silent, earning thousands of dollars in compensation and overseeing a case
involving an underling at the State’s Attorney’s Office who Mohammad alleged had tortured
him when he was a police officer. His actual conflict exposed, Milan cannot remain in place.
[SEGMENT 11]
As recognized almost 100 years ago, “No system of justice can rise above the ethics of those
who administer it.” National Wickersham Commission on Law Observances and Law
Enforcement, 1929. Accordingly, we reverse the circuit court’s orders denying Muhammad’s
motions to rescind Milan’s appointment and remand for the appointment of a special prosecutor
free of conflicts of interest.
¶9 Background
¶ 10 The State charged Muhammad with three counts of first-degree murder and two counts of
aggravated discharge of a firearm for the May 4, 1999, shooting death of Damone Mims.
1-22-0372
Following conviction by a jury, Muhammad was sentenced to 50 years’ imprisonment. [CITATION]
¶ 11 In 2014, Muhammad submitted a claim of torture to the Illinois Torture Inquiry and Relief
Commission (TIRC) under section 40/45 of the Act (775 ILCS 40/45 (West 2018)) alleging (i)
he had been “interrogated for four days at Area 2 in a cell that did not have a bed, food, toilet,
or water,” (ii) “Detective [Michael] McDermott threatened him, boasting that he ‘kn[ew] how
to get [Muhammad] to confess without leaving a mark’ “ and “aggressively slammed a large
casefile on the table, closed the interrogation room door and told his colleagues *** that he
needed a moment alone with [Muhammad],” (iii) alone with Muhammad, McDermott used
racial intimidation by telling him that “a jury would be more likely to believe white witnesses
than a black defendant,” and (iv) during two of four lineups, Muhammad was “forcefully held”
by the arm.
¶ 12 Muhammad’s alleged statement was included in a police report prepared by Detective
McDermott. Detective Fidyk, McDermott’s partner, testified at trial that Muhammad made
admissions during an interview after being Mirandized. According to Fidyk, Muhammad told
him that “he was a Vice Lord. Member of the Vice Lord street gang from around 79th and
Dobson. He denied any knowledge of the aggravated battery case report, which he was the
victim, the one that was assigned to myself. He said he had no knowledge of the murder and
knew that there was an arrest warrant for him regarding this case and he went to Washington.”
On redirect, Fidyk testified that Muhammad “stated that he knew of the warrant for his arrest
and he decided to move to Washington to turn his life around.”
1-22-0372
¶ 13 The Commission investigated Muhammad’s claims. When questioned by the Commission
staff, Muhammad’s “allegations expanded, and he claimed he was actually beaten by
McDermott with a case file on the head, denied food, forced to urinate on the floor and to
defecate into a shirt in his interrogation room because he was denied bathroom use.” According
to the Commission, Muhammad never claimed he had been abused at trial or on appeal. The
Commission further stated, “[Muhammad]’s own attorney noted to [the Commission] that ***
there was no ‘confession’ in the traditional sense *** only partially incriminating statements.”
¶ 14 The Commission voted on July 18, 2018, to refer the matter for judicial review, though it
noted “severe reservations about [Muhammad]’s credibility in regards to his claims of physical
abuse.” Yet, the trial record indicates that Muhammad asserted an alibi defense and argued his
statement collaborated with his alibi defense. At trial, Muhammad’s grandmother, Flora
Walker, testified that Muhammad came to stay with her in Seattle on May 3, 1999, the Monday
before Mother’s Day and the day before Mims’ murder, because he had been beaten up. She
picked up her grandson at the airport between 12:15 and 1:00 p.m. In closing argument, defense
counsel used Muhammad’s statement to Detective Fidyk to reinforce Muhammad’s mother’s
testimony that Muhammad had left for Seattle long before police ever issued the warrant.
¶ 15 At the jury instruction conference, defense counsel said Muhammad wanted to “turn this
into a second-degree murder case.” Before closing arguments, defense counsel asked for a
“second degree instruction because there is some evidence that my client was the victim of a
beating” on May 1st. The State objected. The trial judge recognized that Muhammad may be
entitled to instructions on inconsistent defenses but denied the request, finding “there is no
testimony that he was acting in the heat of passion.”
1-22-0372
¶ 16 The Commission concluded that even though Muhammad had not confessed to the murder,
the statement he made to Fidyk came within the Commission’s administrative rule of a “
‘tortured confession’ includ[ing] any incriminating statement, vocalization, or gesture alleged
by police or prosecutors to have been made by a convicted person that the convicted person
alleges were a result of (or, if the convicted person denies making the statements, occurred
shortly after) interrogation that the convicted persons claims included torture.” 20 Ill. Adm.
.10. The Commission further stated that the involvement of “[Jon] Burge Detective”
McDermott, who had well-documented findings of abuse, and a possible Brady violation based
on the State’s failure to disclose non-identifications of Muhammad after multiple lineups,
amounted to “sufficient credible evidence of torture meriting judicial review.”
¶ 17 In November 2018, Muhammad’s counsel moved to have the Office of the Special
Prosecutor (OSP) and Robert Milan (collectively, “[CITATION]”) appointed, given that the Cook
County State’s Attorney’s Office (SAO) had concluded its involvement would be inappropriate
as Detective McDermott worked for the State’s Attorney’s office as an investigator after he
retired from the Chicago Police Department. Milan was appointed as the special prosecutor for
the “Burge-related” cases in April 2017 and led the OSP after the previous special prosecutor
resigned. The presiding judge of the criminal division appointed Milan on November 20, 2018.
¶ 18 After his review, Milan concluded that the evidence against Muhammad was overwhelming
and the OSP would continue to defend the conviction. After that, on August 20, 2020, Milan
moved the circuit court to terminate the proceedings on the basis that Muhammad had not
articulated a claim of torture under the Act. Milan took the position that Muhammad’s statement
to Detective Fidyk did not amount to a “confession” as defined by Illinois law and required by
1-22-0372
the Act. Milan believed that the Commission did not have the authority to expand the scope of
its statutory mandate by adopting regulations defining a “confession” more broadly.
¶ 19 For the Brady violation, Milan argued that the Act specifically limits the Commission’s
authority to conduct inquiries into “claims of torture,” defined as “a claim on behalf of a living
person convicted of a felony in Illinois asserting that he was tortured into confessing to the
crime for which the person was convicted and the tortured confession was used to obtain the
conviction and for which there is some credible evidence related to allegations of torture.” 775
ILCS 40/5(1) (West 2018). Relatedly, Milan argued that the Commission expressly found that
Muhammad’s allegations of abuse were not credible but still referred the matter for judicial
review.
¶ 20 Shortly afterward, Muhammad filed a “Motion to Rescind” Milan’s appointment as the
special prosecutor, claiming: (i) Milan’s appointment was improper under the statute ([CITATION]); (ii) Milan suffered a disabling conflict of interest based on his service
as the First Assistant State’s Attorney and Supervisor of Felony Review for the Cook County
State’s Attorney’s Office; and (iii) even if no actual conflict of interest existed, Milan’s
appointment created an appearance of impropriety. Milan responded that his appointment
adhered to the statute under which he continued the ongoing work as the “Burge” special
prosecutor after his predecessor retired. Further, he did not suffer from a conflict of interest
based on his SAO service, where he was not personally involved in Muhammad’s case, and the
attempts to have him removed smacked of “gamesmanship” since Muhammad waited two years
to seek removal and did so after Milan filed the motion to terminate.
1-22-0372
¶ 21 After hearing arguments on the motions, the presiding judge of the criminal division denied
Muhammad’s motion to rescind, finding Muhammad’s motion untimely and Milan’s
appointment proper and consistent with the original order appointing a special prosecutor for
the entire class of Burge cases.
¶ 22 Muhammad filed a motion to reconsider. On January 21, 2021, a different presiding judge
struck that motion, stating she would not reconsider her predecessor’s decision. Muhammad
filed a motion for leave to file a petition for mandamus or prohibition or, in the alternative, a
motion for supervisory order challenging the ruling. On March 5, 2021, the Supreme Court
denied the motion. [CITATION].
¶ 23 Muhammad filed a “new” motion to rescind Milan’s appointment, again arguing that
Milan’s positions at the SAO created a disabling conflict of interest requiring his
[SEGMENT 12]
disqualification under the governing statute (55 ILCS 5/3-9008 (West 2018)) and asserting that
Milan could be a witness in the proceedings in Muhammad’s case based on a memorandum his
counsel had recently obtained. The memorandum, sent to Milan in 1999 by an Assistant State’s
Attorney in the felony review unit, regarded the alleged torture of a different defendant during
the felony review process. Milan argued that the memorandum was irrelevant as it addressed a
different murder committed by an unrelated offender and involved different detectives from a
different Chicago police headquarters. The presiding judge of the criminal division rejected
Muhammad’s arguments and denied the motion.
¶ 24 Muhammad filed a Motion for Supervisory Order to which Milan objected. The Supreme
Court denied Muhammad’s motion on September 9, 2021. [CITATION].
1-22-0372
¶ 25 On November 5, 2021, Muhammad, in his response to the motion to terminate, argued that
his alleged statement to Detective Fidyk constituted an inculpatory statement used by the
prosecution to establish his consciousness of guilt and fell within the Commission’s definition
of a confession. In addition, the court must give the Commission’s interpretation of the statute
the force and effect of law. Finally, Milan waived challenging the propriety of the
Commission’s referral for judicial review by waiting over two years to file the motion to
terminate, and the Commission could rely on the alleged Brady violations as corroboration of
his claims of abuse.
¶ 26 Milan replied that Muhammad’s statement to Detective Fidyk did not amount to a
confession under Illinois law. Milan also argued (i) the Commission exceeded its statutory
authority when it adopted an administrative rule defining a “claim of torture” broader than the
definition adopted by the legislature, (ii) the Commission improperly referred the matter for
judicial review where its formal disposition stated that Muhammad’s claims of abuse were not
credible; (iii) the Commission exceeded its authority by relying on an alleged Brady violation
unrelated to a torture claim as a basis for a referral for judicial review, which instead should be
brought in a postconviction petition, and (iv) the Commission’s referral does not conform to the
restrictions of the Act depriving the court of subject matter jurisdiction, a defect that cannot be
waived or forfeited.
¶ 27 The circuit court heard arguments on the State’s motion to terminate and took the matter
under advisement. On February 10, 2022, Muhammad sought leave to file an “amended” post-
conviction petition, adding (i) the torture claims as well as the alleged Brady violation identified
in the Commission’s referral, (ii) a claim of actual innocence based on the fact that his statement
1-22-0372
was obtained through coercion by detectives, (iii) prosecutorial misconduct at trial, and (iv)
ineffective assistance of his trial and appellate counsel.
¶ 28 On March 11, 2022, the circuit court granted Milan’s motion to terminate. The circuit court
held it “[is] not bound by the conclusions made by the Commission in making a referral” and
“does not review the actions of the Commission in making the referral to determine whether
they were appropriate.” The court explained that it would not dismiss the referral “based upon
the actions of the Commission in making the referral,” as Milan requested, because the judiciary
and the Commission have distinct roles and responsibilities. The court stated that “[t]he
Commission acts to determine whether there is enough evidence of torture to merit judicial
review. The Court makes the final determination of whether the provisions of the statute have
been met.”
¶ 29 Then the circuit court determined that Muhammad’s statement to Detective Fidyk did not
involve a “confession” within the meaning of the Act:
“[T]he issue for the Court [] to decide at an evidentiary hearing is whether the defendant
was tortured into confessing to the crime for which he was convicted, and the tortured
confession was used to convict.
As the full statement entered into evidence in this particular case at trial, it states as
follows: He said, meaning the defendant, he said he was a Vice Lord member, a member of
the Vice Lords street gang from around 79th and Dotson. He denied any knowledge of the
aggravated battery case report which he was the victim. He said he had no actual knowledge
of the murder and that he knew there was an arrest warrant for him regarding the case, and
he went to the State of Washington.
- 10 - 1-22-0372
That is characterized in the referral as a confession. [Muhammad’s counsel] has argued
in her motion that she believes that the detectives fabricated that statement, but that was
characterized by the Commission as the confession.
The problem is that the statement is not a confession based upon case law. There are a
number of cases throughout the years that have specifically defined ‘confession’ going back
to the case of [CITATION], N-i-t-t-i, from 1924. In that case, the Court stated that a
confession is a direct acknowledgment of guilt on the part of the accused, either by
statements of the details of the crime or an admission of the ultimate facts.
***
Clearly, the statement entered at trial was not a confession. Looking at the full statement,
it is an exculpatory -- it is exculpatory in nature.
[Muhammad] denies the murder and any knowledge of the facts prior to the murder. In
the statement, he also makes certain admissions. He was a Vice Lord, he knew about the
warrant issued for his arrest, and he went to the State of Washington to turn his life around.
Such admissions do not equal a confession.
As the Illinois Supreme Court held in [CITATION], J-e-o-r-g-e-v, 38 Ill. 2d
165, a 1967 case, a confession must acknowledge all the elements of the crime and is a
confession of guilt. In this case, the State argued in closing arguments at trial that his
statement and his flight to Washington should be -- should show consciousness of guilt. The
State argued it to counter the defendant’s alibi defense.
***
Neither the trial transcript nor the Appellate Court affirmance of the case makes
- 11 - 1-22-0372
reference to any confession being introduced at trial. Contrary to the Commission’s referral
of a tortured confession used to convict the defendant in this matter, there’s no confession
presented.”
¶ 30 The circuit court noted that the Commission “had serious concerns about [Muhammad’s]
credibility.” Regarding the alleged Brady violations, they should not be incorporated into
Muhammad’s torture claims because that would require an evidentiary hearing on the relevant
part of the Commission’s referral.
¶ 31 The circuit court terminated the proceedings on the Commission’s referral and granted
Muhammad leave to file his successive postconviction petition.
¶ 32 Analysis
¶ 33 We note that the Attorney General of the State of Illinois and the Solicitor General, on behalf
of the Commission, filed an amicus curiae brief in support of Muhammad. Their brief raises
essentially the same arguments as Muhammad, seeking to reverse the circuit court’s denial of
his claims under the Act.
¶ 34 The Act provides “an extraordinary procedure to investigate and determine factual claims
of torture related to allegations of torture [.]” 775 ILCS 40/10 (West 2020). An eight-member
Commission was established to effectuate this purpose. 775 ILCS 40/15 (West 2020). When
the Commission receives a claim of torture, it hears the evidence and votes on an appropriate
disposition. 775 ILCS 40/45 (West 2020). If at least five of the eight members conclude by a
preponderance of the evidence that there is sufficient evidence of torture, the Commission refers
the matter to the circuit court for further review. 775 ILCS 40/50 (West 2020).
¶ 35 On receipt, the circuit court proceeds to an evidentiary hearing unless it finds that the
- 12 - 1-22-0372
Commission’s “threshold determination was itself against the manifest weight of the evidence.”
[CITATION]. If the court proceeds with an evidentiary
hearing, the hearing is akin to a third-stage evidentiary hearing under the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)). [CITATION]. The circuit court may receive proof by affidavits, depositions, oral testimony, or
other evidence. 775 ILCS 40/50 (West 2020). Similar to post-conviction proceedings, the
Illinois Rules of Evidence do not apply so that defendants may present evidence they may not
have otherwise been able to present at trial. [CITATION].
¶ 36 When considering a Commission referral, the court must determine whether the outcome of
the original suppression hearing would likely have been different if the officers who denied
torturing the defendant had been subject to impeachment based on newly discovered evidence
that those officers engaged in a pattern of abusive tactics in other cases. [CITATION]. As for pattern and practice, the
circuit court is charged with looking at the similarity “between the misconduct at issue in the
[SEGMENT 13]
present case and the misconduct shown in other cases, such that it may fairly be said the officers
were acting in conformity with a pattern and practice of behavior.” [CITATION].
¶ 37 The Commission’s Definition of “Tortured Confession”
¶ 38 Muhammad argues that the circuit court erred by dismissing the Commission’s referral
- 13 - ```plaintext
1-22-0372
without an evidentiary hearing. Specifically, Muhammad claims that the court misstated its role
in judicial review in not giving proper deference to the Commission as an administrative body
or following the Commission’s regulatory definition of the term “tortured confession.” Milan
argues that the circuit court properly terminated the proceedings without an evidentiary hearing
because the undisputed facts demonstrated that Muhammad could not establish he was “tortured
into confessing to the crime” as the Act required (775 ILCS 40/5(1) (West 2020)), where
Muhammad’s statement to Detective Fidyk did not rise to the level of a “confession” under the
plain meaning of the word.
¶ 39 Under the Act, a “claim of torture” means an assertion on behalf of a person convicted in
Illinois that “he [or she] was tortured into confessing to the crime for which the person was
convicted and the tortured confession was used to obtain the conviction and for which there is
some credible evidence related to allegations of torture occurring.” (Emphasis added.) 775 ILCS
/5(1) (West 2020). Both parties acknowledge that the Act does not define “tortured
confession.”
¶ 40 Muhammad contends that in denying him an evidentiary hearing because his statement to
Detective Fidyk did not amount to a confession, the court failed to consider the definition of
“tortured confession” the Commission adopted or how it applied to the statement he made to
Detective Fidyk. 20 Ill. Adm. Code. § 2000.10. The Commission defined a “tortured
confession” as “any incriminating statement * * * that the convicted person alleges [was] the
result of [an] interrogation that the convicted person claims included torture.” 20 Ill. Adm.
Code. § 2000.10; see [CITATION] (administrative rules have
“force and effect of law and are to be construed according to the same standards that govern the
- 14 -
``` 1-22-0372
construction of statutes”).
¶ 41 Milan responds that the court’s definition of confession adopted the meaning of
“confession” found repeatedly in Illinois caselaw. Milan further argues that the Commission’s
definition of “tortured confession,” which includes “incriminating statements,” exceeds the
power granted the Commission because the meaning of “confession” as used in the Act is
unambiguous.
¶ 42 Standard of Review
¶ 43 When reviewing a circuit court’s decision on a Commission referral, we employ a different
standard of review for issues of law and fact. [CITATION], ¶ 195.
We defer to the circuit court’s findings of fact unless they are against the manifest weight of the
evidence, which occurs only where the opposite conclusion is “clearly evident, plain, and
indisputable.” [CITATION], ¶ 195. The circuit court did not make factual
findings since it terminated the proceedings before receiving evidence. We review legal
conclusions de novo; that is, we owe no deference to the circuit court and perform the same
analysis as the trial judge. Id.
¶ 44 Statutory Construction
¶ 45 The fundamental principle of statutory construction involves determining and giving effect
to the legislature’s intent. [CITATION], ¶ 30. The statutory language
provides the best indication of legislative intent. [CITATION], ¶ 30. “When the
meaning of a statute is not clearly expressed in the statutory language, a court may look beyond
the language [used] and consider the purpose behind the law and the evils the law was designed
to remedy. When the language of an enactment is clear, it will be given effect without resort to
- 15 - 1-22-0372
other interpretative aids.” (Internal citations omitted.). [CITATION]
¶ 46 Illinois law has long provided that an administrative agency is a “creature of statute” with
“no general or common law powers.” [CITATION] Instead, an “agency is limited
to those powers granted to it by the legislature in its enabling statute.” [CITATION] An administrative agency
administrates and enforces the statute; courts give deference to the agency’s interpretation of
statutory ambiguities. [CITATION] Thus, “ ‘[a] court
will not substitute its own construction of a statutory provision for a reasonable interpretation
adopted by the agency charged with the statute’s administration.’ ” [CITATION]
But, reviewing courts are not bound by
agency interpretation that conflicts with the statute or is unreasonable or otherwise erroneous.
Id.
¶ 47 The Act and the Commission’s Interpretation
¶ 48 The Act defines a “claim of torture” as “a claim on behalf of a living person convicted of a
felony in Illinois asserting that he was tortured into confessing to a crime for which the person
was convicted and the tortured confession was used to obtain the conviction and for which there
is some credible evidence related to the allegations of torture.” (Emphasis added.) 775 ILCS
/5(1) (West 2020). As a result of the rule-making authority granted by the General Assembly
- 16 - 1-22-0372
(Hadley, [CITATION]), the Commission implemented its own definition of “torture” and
“tortured confession.”
¶ 49 The Commission defined “torture” as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for the purpose of obtaining from that
person a confession to a crime.” 20 Ill. Adm. Code. § 2000.10. It defined “tortured confession”
as “any incriminating statement, vocalization or gesture alleged by police or prosecutors to have
been made by a convicted person that the convicted person alleges [was] a result of (or, if the
convicted person denies making the statements, occurred shortly after) [an] interrogation that
the convicted person claims included torture.” 20 Ill. Adm. Code. § 2000.10. The Commission’s
definition of “tortured confession” goes beyond a confession as Illinois reviewing courts have
historically understood the term and expressly encompasses a statement short of a confession.
¶ 50 We defer to an agency’s interpretation when the statute is ambiguous. [CITATION]. Commonly, a “confession” is “a statement of
guilt or obligation in a matter pertaining to oneself.” Webster’s Third New International
Dictionary 475 (2000). See [CITATION] (courts may consult dictionaries for plain and ordinary meaning of undefined words or phrases)
¶ 51 As Milan points out, our courts have defined “confession” repeatedly over the past 100
years. [CITATION] (“a direct acknowledgment of guilt on the part of
the accused, either by a statement of the details of the crime or an admission of the ultimate
fact.”); [CITATION] (“A confession is an acknowledgement
of guilt, and not of any particular fact connected with the case.”); [CITATION] (“a voluntary declaration by a person charged with crime of his agency or
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participation in the crime, and not merely a declaration or admission of facts criminating in their
nature or tending to show guilt.”); [CITATION] (“a
comprehensive admission of guilt or of facts which necessarily and directly imply guilt.”);
[CITATION] (confession must acknowledge all elements of
crime and is confession of guilt).
¶ 52 Nevertheless, we must consider the context in which “confession” is used in the Act.
Muhammad and the Commission argue that the law has “evolved” and “confession,” as used in
“tortured confession,” encompasses all incriminating statements. In support, they cite section
/114-11 of the Code of Criminal Procedure, which has been recognized as the proper pretrial
mechanism for challenging the admissibility of all statements by a defendant, regardless of
whether they correspond to a “confession.” 725 ILCS 5/114-11 (West 2020). Section 5/114-11
provides that “[p]rior to the trial of any criminal case a defendant may move to suppress as
evidence any confession given by him on the ground that it was not voluntary,” and employs
“confession” repeatedly in the statute. Id. (emphasis added.).
¶ 53 Our supreme court has held that under section 114-11, “the word ‘confession’ must be read
to include both inculpatory and exculpatory statements,” thereby embracing the then-new
constitutional standards in Miranda v. Arizona, 384 U.S. 436 (1966). [CITATION].
¶ 54 Due to these multiple interpretations of “confession,” Muhammad contends that its meaning
[SEGMENT 14]
is at least ambiguous.
¶ 55 Milan acknowledges [CITATION] expanded the definition of “confession” under section 114-11
but suggests that no constitutional mandate exists to construe the Act beyond its plain and
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unambiguous language. Milan points to [CITATION] and [CITATION] , which were decided on the same day as Costa.
¶ 56 In [CITATION], the defendant claimed his statements should not have been admitted into
evidence because the State failed to provide him the writing of the oral statements he made and,
whether his oral statements were reduced to a writing or not, the State had to give him the names
and addresses of persons present when he made the statements. [CITATION] (citing
Ill.Rev.Stat.1963, chap. 38, par. 729) As to the meaning of “confession” under Paragraph 729
of the Criminal Code (Ill.Rev.Stat.1963, chap. 38, par. 729 since repealed), the court explained,
“Confessions must be distinguished from admissions against interest. Jones on Evidence,
th Ed., sec. 398 states: ‘* * * As the terminology is used in criminal law, a ‘confession’
must be distinguished from an ‘admission’ of lesser import * * *. A confession out of court
or an extrajudicial confession is comprehensive in its scope, * * * in that it acknowledges
all of the elements of the crime and, therefore, is a confession of guilt * * *. A verbal (that
is, expressed in words, oral or written) admission in criminal law, as generally understood,
is different from a confession in that it is not an acknowledgment of guilt but is a statement
having evidentiary value in proof of an element of the offense charged.” Id. at 175.
¶ 57 The court found that the “statements of the defendant here were admissions against interest
and not confessions” and, given the spontaneity of the statement and circumstances under which
the statement was made, “there [was] nothing to suggest that the admission by the defendant
was not a spontaneous and voluntary one and nothing to suggest that [the sheriff] devised any
stratagem to induce it.” Id. at 176. So, the trial court did not err. Id.
¶ 58 In [CITATION], the defendant father’s infant daughter died with a skull fracture, extensive brain
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injury, and rib injuries. [CITATION]. The defendant admitted to shaking and
squeezing his daughter to get her to stop crying, and he could have broken her ribs in the process.
Defendant was convicted of involuntary manslaughter. Id. at 222. The main issue on appeal was
whether the defendant’s statements that he “squeezed her” and “wanted her to stop crying”
amounted to admissions for which the voluntariness needed to be determined. Id. at 220-21.
Our supreme court acknowledged that “the statements of the defendant were not in the strict
sense of the word confessions to the crime of murder, [but] it is apparent that they were not
entirely exculpatory and that his admissions that he squeezed the child to keep her from crying
were incriminating.” The court found consistent with its holding in [CITATION], the “voluntary character of any out-of-court statement must first be established
before the statement may be used, even for impeachment purposes.”
¶ 59 The court further found that “[o]ur adoption of this rule finds support in the decision of the
U.S. Supreme Court in [CITATION]” and “that the rule enunciated in these recent
decisions of our court and the U.S. Supreme Court, is the proper one and we adhere to it in this
case.” The court reversed and remanded for a new trial because the trial court erred by not
holding a preliminary hearing to determine the voluntariness of the defendant’s admissions. Id.
at 221. The court noted that, as stated in “[CITATION], the distinction between confessions and
admissions is preserved by section 114-10 of the Code of Criminal Procedure in connection
with the furnishing of a list of witnesses to oral statements.” (Citations omitted.) Id.
¶ 60 Milan urges that [CITATION], and [CITATION] read together stand for the proposition that a
“confession” is an acknowledgment of guilt and applies to all instances other than the limited
circumstances of permitting a pretrial hearing on a motion to suppress a confession under
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section 5/114-11. 725 ILCS 5/114-11 (West 2020). Milan contends that since Costa, Georgv,
and Lefler, our supreme court has used this definition of “confession” when addressing jury
instruction issues. See [CITATION] (giving jury instruction
on confession error when defendant’s statement, while incriminating, not inconsistent with his
contention that victim’s death was accidental and not “confession”); [CITATION] (error “to instruct a jury that defendant has confessed to a crime when he
has made only an admission”).
¶ 61 Three flaws thwart Milan’s argument. First, in this case, the phrase is “tortured confession,”
not “confession.” Milan’s plucking of “confession” from the phrase “tortured confession”
divorces it from the context in which the Act uses the term. Second, although the terms
“confession” and “admission” had different definitions in the context of jury instructions in the
first edition of the pattern jury instructions (Illinois Pattern Jury Instructions, IPI Criminal, Nos.
.07 and 3.06 (1st ed. 1961)), that is no longer true. In the past, the two separate jury instructions
required the parties to litigate whether a statement was a “strict confession of guilt or merely an
admission of an incriminating fact.” [CITATION].
Regardless, the second edition of the pattern jury instructions, IPI Criminal Nos. 3.06 and 3.07
were consolidated into one instruction and employed the general term “statement” in place of
the more specific terms “confession” and “admission.” Illinois Pattern Jury Instructions,
Criminal, No. 3.06-3.07 (2d ed. 1981). These changes “avoided the complications that ensue
when a judge characterizes a statement,” eliminating this unnecessary risk of prejudice to the
defendant. IPI Criminal 2d No. 3.06-3.07, Committee Note; [CITATION].
¶ 126. This court has held that the current version of IPI Criminal 4th No. 3.06-3.07, which also
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uses “statement” applies “to a defendant’s self-incriminating statements-confessions,
admissions, or false exculpatory statements-relating to the charged offense(s).” [CITATION], ¶ 133.
¶ 62 Third, and most significantly, we are tasked with considering Muhammad’s torture claim
through the lens of whether the outcome of the suppression hearing would likely have been
different given the new pattern and practice evidence. [CITATION], ¶ 154. As Milan acknowledges, a “confession” is an acknowledgment of guilt and
applies to all instances other than the limited circumstances of permitting a pretrial hearing on
a motion to suppress a confession under section 5/114-11. 725 ILCS 5/114-11 (West 2020). As
the Act requires us to consider whether the result of a suppression hearing would have been
different, it necessarily follows that this is also a limited circumstance where the definition of
“confession” as an acknowledgment of guilt would be inapplicable.
¶ 63 This court has allowed the circuit court to simultaneously consider a petitioner’s claim under
the Act and request to suppress his or her statement under section 5/114-11. [CITATION], ¶ 139 (trial court’s inquiry at
suppression hearing significantly overlaps with inquiry at evidentiary hearing on police torture).
Thus, the circuit court can consider whether Muhammad’s statement to Detective Fidyk should
be suppressed at an evidentiary hearing on his torture claim. Given that possibility, the Act
cannot be limited to a confession as an acknowledgment of guilt.
¶ 64 Our analysis of when “confession” means “confession” and when it means something more
leads us to conclude that “confession” is ambiguous because reasonably well-informed persons
reading the Act could understand “confession” in more than one sense. [CITATION]
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Ill. 2d 282, 288 (1994) (statute ambiguous if reasonably well-informed persons can understand
it in two or more ways). Despite that, we do not impose our own construction on the statute as
would be necessary without an administrative interpretation. [CITATION]. Instead, we must determine whether
the agency’s interpretation relies on a permissible construction of the statute. “A court will not
[SEGMENT 15]
substitute its own construction of a statutory provision for a reasonable interpretation adopted
by the agency charged with the statute’s administration.” [CITATION].
¶ 65 We are not bound by the Commission’s interpretation of “tortured confession” irrespective
of its reasonableness. [CITATION]. Yet, if the Commission’s interpretation is permissible, that we might have
interpreted the statute differently does not justify reversal. [CITATION]. We find the Commission’s interpretation of “tortured confession” as
reasonable based on both our discussion of recent Illinois court interpretations of “confession”
and the legislature’s intent as explained by the Act’s stated purpose: “an extraordinary
procedure to investigate and determine factual claims of torture related to allegations of torture.”
ILCS 40/10 (West 2020). Any suggestion that certain kinds of statements are not within the
province of the Commission’s investigatory authority is notably absent from this express
purpose. Moreover, we recognize that a torturer not only seeks to obtain confessions but
statements that can be used against a suspect. Based on the Act’s stated purpose, it would be
nonsensical for the Commission to consider only a tortured confession that acknowledges guilt
and nothing less. Our interpretation respects the Act’s purpose and spirit.
- 23 - 1-22-0372
¶ 66 Further support comes from legislation that made it a felony to “compel a confession or
information by force or threat.” 720 ILCS 5/12-7 (West 2020). Adopted well before the
Commission was established, this offense forbids a person with the intent to “obtain a
confession, statement or information regarding any offense” to knowingly threaten or inflict
“bodily harm upon the person threatened or upon any other person.” 720 ILCS 5/12-7 (West
). Although separate from the Act, when considered in conjunction with the Act, this
statutory offense shows an overall movement to rectify convictions based on prior statements
made on account of torture and prevent future statements from being obtained as a result of
force or threat of force. It would be odd that a police officer can be prosecuted for obtaining
“information” by force from a suspect, but a convict could not obtain relief under the Act for a
statement obtained by torture. We see no definitive indication that the legislature intended to
distinguish between “confessions” obtained by torture, which acknowledge guilt, and other
statements containing admissions or incriminating information.
¶ 67 Accordingly, we find that Muhammad’s statement to Detective Fidyk qualifies as a
“tortured confession” under the Commission’s interpretation of the Act. We reverse and remand
for the circuit court to conduct an evidentiary hearing to determine the merits of Muhammad’s
claim that he was tortured into giving the statement. We make no findings on the issue.
¶ 68 Muhammad’s Claimed Brady Violation
¶ 69 Muhammad next argues that the circuit court erred by failing to consider the Commission’s
finding of a possible Brady violation under which the State must disclose to the defense all
evidence favorable to defendant and material to either guilt or punishment. [CITATION].
Milan argues that a potential Brady violation is irrelevant to Muhammad’s
- 24 - 1-22-0372
claim of torture under the Act. The Commission found otherwise. We address this issue because
it is likely to recur on remand.
¶ 70 As discussed, the circuit court terminated the proceedings after determining that
Muhammad’s statement to Detective Fidyk was not a “confession,” as the Act uses that term.
Concerning the Brady violation, the circuit court found,
“In essence, the Commission is making an alleged Brady violation part of the claim of
torture to shore up the credibility of a person the Commission had grave reservations
regarding his claim of coercion made approximately 14 years after he was convicted.
Incorporating the Brady claim into the claim of torture--into the claim of the torture
analysis would require an evidentiary hearing on the part of the referral without the
appropriate opportunity for separate consideration as would be appropriate under the
Post-Conviction Act or post-judgment proceeding under 2-1401.”
So, the court heard no evidence regarding Muhammad’s claim of torture or the potential Brady
violation.
¶ 71 The Commission, in determining whether sufficient evidence of torture exists to refer a
claim for judicial review, may “use any measure provided in the Code of Civil Procedure and
the Code of Criminal Procedure of 1963 to obtain information necessary to its inquiry.” 775
ILCS 40/40(d) (West 2020). And the Commission may “issue subpoenas or other process to
compel the attendance of witnesses and the production of evidence, administer oaths, petition
the Circuit Court of Cook County or of the original jurisdiction for enforcement of process or
for other relief.” 775 ILCS 40/40(d) (West 2020). If, as the result of the Commission’s
investigation, it discovers “[e]vidence of criminal acts, professional misconduct, or other
- 25 - 1-22-0372
wrongdoing disclosed through formal inquiry or Commission proceedings,” that information
“shall be referred to the appropriate authority” as well as to the convicted person or his counsel
if the evidence is favorable. 775 ILCS 40/45(d) (2020).
¶ 72 Again, the Act establishes “an extraordinary procedure to investigate and determine factual
claims of torture related to allegations of torture.” 775 ILCS 40/10 (West 2020). To reiterate, a
“claim of torture” is defined as an assertion that a person “was tortured into confessing to the
crime for which the person was convicted and the tortured confession was used to obtain the
conviction and for which there is some credible evidence related to allegations of torture.” 775
ILCS 40/5(1) (West 2020).
¶ 73 In line with the Act’s purpose, when evaluating a Commission referral, the circuit court asks
whether the outcome of the original suppression hearing would likely have been different if the
officers who denied torturing the defendant had been subject to impeachment based on newly
discovered evidence that those officers engaged in a pattern of abusive tactics in other cases.
[CITATION], ¶ ¶92, 95-96. In creating the Act, “the legislature clearly did
not create a new form of postconviction relief.” [CITATION], ¶ 52.
Ultimately, the trial court determines the merits of a torture claim.
¶ 74 The “possible” Brady violation the Commission uncovered related to the State’s failure to
disclose that Muhammad participated in several lineups in which multiple witnesses did not
identify him. We find this issue relevant to Muhammad’s claim of torture. As the Commission
and circuit court observed, Muhammad did not bring his claim of torture until 14 years after
Detective Fidyk interrogated him. In his motion to terminate the proceedings before the circuit
court, Milan argued Muhammad’s delay made it less credible; thus, we can safely assume that
- 26 - 1-22-0372
the State will make the same argument. But, Muhammad claims that he repeatedly told his
attorney before trial that the police coerced the statement from him, yet his attorney did not
raise the issue with the trial court. The Commission determined this was plausible, stating
“[t]hat valid lineup issues were not discovered and litigated by Muhammad’s attorney before
trial makes it at least possible that Muhammad informed [his] attorney about any coercive
interrogation tactics that were also not explored by trial.” Thus, the Commission concluded that
there was enough evidence to merit the referral of Muhammad’s torture claim for an evidentiary
hearing.
¶ 75 We cannot say that the Commission’s finding is against the manifest weight of the evidence.
See, [CITATION], ¶ 76 (on receipt of referral, circuit court should proceed
to evidentiary hearing unless court finds Commission’s “threshold determination was itself
against the manifest weight of the evidence”). Indeed, the Commission’s factual findings do not
bind the circuit court in determining the merits of a torture claim.
¶ 76 This court has held that proceedings under the Act and the Post-Conviction Hearing Act are
intended to work together, not against each other. [CITATION], ¶ 137. A
permissible and prudent pleading procedure would be to file a joint petition under both the
Commission referral and the post-conviction statute for a combined evidentiary hearing, as the
Commission referral is a type of “postconviction hearing” within the meaning of Illinois Rule
of Evidence 1101(b)(3).
¶ 77 Because the alleged Brady violation is closely tethered to the merits of Muhammad’s torture
claim, we reject Milan’s contention that the potential Brady violation is irrelevant to
Muhammad’s torture claim and could not be raised under the Act.
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====== End of Part ====== 1-22-0372
¶ 78 Conflict Issues
¶ 79 The law is explicit: To ensure a prosecutor’s impartial judgment, a prosecutor with an actual
conflict of interest must be removed. The conflict, without more, creates the perception that
bias, favoritism, or personal interests may influence the prosecutor, thereby compromising the
integrity and fairness of the proceedings.
¶ 80 Milan contends no actual conflict of interest bars his review of Muhammad’s case, ignoring
[SEGMENT 16]
that as Supervisor of the Felony Review Unit in the Cook County’s State’s Attorney’s Office,
he initiated the criminal prosecution of Muhammad years ago. Milan also ignores that at his
appointment in this case, he stood mute, failing to disclose his relationship with Detective
McDermott and violating due process and the rules of professional conduct. His actual conflict
calls for the appointment of a new special prosecutor.
¶ 81 Where, as here, no factual dispute exists, we review de novo the legal issue of whether an
attorney operates under a conflict of interest. [CITATION]
¶ 82 Actual Conflict of Interest
¶ 83 Muhammad contends Milan has a personal interest because he was “the direct supervisor
for the felony review unit and the felony trial attorneys at the time Muhammad was tortured and
tried.” Muhammad contends Milan’s personal involvement undermines the proceedings “in
ways known, unknown, and perhaps even unknowable,” “cast[ing] doubt on the procedures in
place to ensure due process under the law.”
¶ 84 Milan replies that Muhammad invited this error by asking for Milan’s appointment. The
record shows Muhammad moved to appoint Milan, who had already served as the special
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prosecutor in other cases at the time the SAO determined it could not participate.
¶ 85 Generally, parties cannot complain of errors they induced the court to make and to which
they consented. [CITATION]. But that general rule does
not apply when an “interested party” acts as a prosecutor given that the resulting error is
“fundamental and pervasive,” raising doubts that “undermine confidence in the integrity of the
criminal proceeding” and “ ‘call[ing] into question the objectivity of those charged with
bringing a defendant to judgment.’ ” [CITATION].
Because this error casts doubt on the integrity of the process, we have a duty to act. [CITATION] (noting “the responsibility of a reviewing court for a just result
and for the maintenance of a sound and uniform body of precedent may sometimes override the
considerations of waiver that stem from the adversary character of our system”); see [CITATION] (even in absence of prejudice to defendant, special
prosecutor may be necessary to remove appearance of unfair prosecution under plain error
principles protecting integrity of proceedings).
¶ 86 Milan next contends the circuit court appointed him as special prosecutor and, as a result,
could only remove him for an “actual conflict of interest,” which he claims he does not have.
Milan adds that an appearance of impropriety alone would not justify removal under the statute.
¶ 87 Section 5/3-9008(a-10) governs the appointment of a special prosecutor and outlines the
procedures:
“The court on its own motion, or an interested person in a cause or proceeding, civil or
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criminal, may file a petition alleging that the State’s Attorney has an actual conflict of
interest in the cause or proceeding. The court shall consider the petition, any documents
filed in response, and if necessary, grant a hearing to determine whether the State’s Attorney
has an actual conflict of interest in the cause or proceeding. If the court finds that the
petitioner has proven by sufficient facts and evidence that the State’s Attorney has an actual
conflict of interest in a specific case, the court may appoint some competent attorney to
prosecute or defend the cause or proceeding.” 55 ILCS 5/3-9008(a-10) (West 2020).
¶ 88 Before this statute’s amendment in 2016, courts held the mere appearance of impropriety
warranted the removal of a prosecutor. See, e.g., [CITATION] (citing pre-amended version). But the amendment added the language “actual
conflict of interest.” 55 ILCS 5/3-9008(a-10) (West 2020). Thus, one court has held that the
party seeking a special prosecutor must demonstrate an actual conflict of interest, not just the
appearance of impropriety. [CITATION], ¶ 33-39. Another court has held that the appearance of impropriety remains enough under the
statute’s current version to warrant removal. See [CITATION], ¶ 39 (citing 2018 version of section 5/3-9008 and finding appearance of impropriety as form
of actual conflict of interest). We need not enter this debate: Milan has an actual conflict of
interest.
¶ 89 Before explaining why, we note that the statute does not define “actual conflict of interest.”
Absent a statutory definition, this court has found that a State’s Attorney has “an actual conflict
of interest” if he or she “is interested in” the case as either (i) a private individual, or (ii) an
actual party to the action. [CITATION]
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IL App (2d) 190845, ¶ 17. This statute “prevent[s] any influence upon the discharge of
the duties of the State’s Attorney by reason of personal interest.” [CITATION]
¶ 90 The defendant must have more than speculation or suspicion. [CITATION] (motion to appoint special prosecutor denied where no pleaded facts showed improbability
state’s attorney would conduct biased investigation and prosecution). Consistent with this
decision, we have found an actual conflict of interest where a newly appointed state’s attorney
acted as defense counsel for the defendant. [CITATION]
¶ 91 We have found no Illinois decision where a party sought to remove a special prosecutor for
an actual conflict of interest. But the parties do not dispute that section 5/3-9008 controls. And
we agree. Section 5/3-9008, as our courts interpret it, applies to removing a special prosecutor.
See [CITATION] (section
/3-9008 also states grounds for disqualifying special state’s attorney under pre-amended
version). Indeed, as we will show, deciding this issue takes no novel insight. Instead, we employ
“a longstanding interpretive principle: When a statutory term is ‘ ‘obviously transplanted from
another legal source,’ ’ it ‘ ‘brings the old soil with it.’ ’ ” [CITATION] (quoting, [CITATION], quoting
Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)).
¶ 92 Finding an “actual conflict of interest” requires us sifting caselaw to clarify the role of the
prosecutor. “Prosecutors ‘have available a terrible array of coercive methods to obtain
information,’ such as ‘police investigation and interrogation, warrants, informers and agents
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whose activities are immunized, authorized wiretapping, civil investigatory demands, [and]
enhanced subpoena power.’ ” Young, [CITATION], (quoting, C. Wolfram, Modern Legal
Ethics 460 (1986)). Milan, when with the SAO, was one of its most senior members with these
powers.
¶ 93 Of critical significance is United States Supreme Court’s and the Illinois Supreme Court’s
shared understanding of the prosecutor’s role. “No attorney is more integral to the accusatory
process than a prosecutor who participates in a major adversary decision.” [CITATION] And of the many decisions a prosecutor makes, the first
among equals is the prosecutorial choice to bring charges. “It is the functional comparability of
[prosecutor’s] judgments to those of the judge that has resulted in * * * prosecutors being
referred to as quasi-judicial officers[.]” (Internal quotation omitted.) [CITATION]; see [CITATION]
(describing prosecutor as “quasi-judicial officer”). Accordingly, “[i]t is as much [the
prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.” [CITATION]
¶ 94 The undisputed facts show Milan exercised a quasi-judicial power as supervisor of the
Felony Review Unit in the Cook County’s State’s Attorney’s Office that charged Muhammad
with first-degree murder. The nature of these proceedings shows Milan seeking to exercise that
power again, holding over Muhammad the powers to dismiss the case, re-prosecute him, and
terminate the proceedings. See 775 ILCS 40/50 (a),(b) (successful petitions may lead to “re-
arraignment, retrial, custody, pretrial release, or discharge” and directing state’s attorney or
- 32 - ```plaintext
1-22-0372
designee to represent state). The exercise of these powers dictates that Milan judge the validity
of his original decision to prosecute. Thus, Milan possesses the improper ability to “judge”
himself and his subordinates.
¶ 95 “The due process guarantee that ‘no man can be a judge in his own case’ would have little
substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution
in which he or she had made a critical decision.” [CITATION]. In [CITATION], due
[SEGMENT 17]
process barred a sitting justice from ruling on a collateral appeal by the same defendant when
decades earlier, as a prosecutor, the judge had authorized seeking of the death penalty. [CITATION].
“The involvement of multiple actors and the passage of time [did] not relieve the former
prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in
determining the consequences that his or her own earlier, critical decision may have set in
motion.” [CITATION].
¶ 96 Similarly, First Assistant State’s Attorney Milan’s exercise of the quasi-judicial power in
Muhammad’s underlying case precludes him from exercising, or seeking to exercise, the power
of a special prosecutor. Due process does not tolerate the “risk of actual bias” that Milan
presents. [CITATION]. Failing to replace Milan as special prosecutor would undermine the integrity
of the court.
¶ 97 In reaching this conclusion, we reject as baseless the dissent’s claim that Muhammad “[a]t
no point” argued Milan’s appointment violated his due process rights. Infra ¶ 133. The due
process clause forms the cornerstone of his challenge, as Muhammad contended Milan’s
personal involvement in the prosecution undermined the integrity of these proceedings “in ways
known, unknown, and perhaps even unknowable” and thus “cast[ed] doubt on the procedures
``` 1-22-0372
in place to ensure due process under the law.” See [CITATION], 579 U.S. at 13 (noting, statutes and
professional codes of conduct provide more protection than due process requires). Illinois law
on conflicts of interest marks the ethical ceiling; the due process clause sets the legal floor.
¶ 98 Decades of torture by Chicago police took place before the courts and legislature acted. See
Kim D. Chanbonpin, Truth Stories: Credibility Determinations at the Illinois Torture Inquiry
and Relief Commission, 45 Loy. U. Chi. L. J. 1085, 1091-106 (2014) (canvassing this history
and concluding “the crisis of police torture is more far-reaching than the ‘bad apples’ myth
suggests”). That formal recognition culminated with the enactment of the Illinois Torture
Inquiry and Relief Commission Act. 775 ILCS 40/1 (eff. Aug. 10, 2009); see State of Illinois
Torture Inquiry and Relief Commission,
https://www2.illinois.gov/sites/tirc/Pages/default.aspx; [CITATION], 2020 IL
App (1st) 190299, ¶ 44 (“[i]nformation on websites and in public records are sufficiently
reliable such that judicial notice may be taken” and collecting examples).
¶ 99 The Act created “an extraordinary procedure to investigate and determine factual claims of
torture related to allegations of torture[.]” 775 ILCS 40/10 (West 2010).
¶ 100 But Milan seeks to halt any inquiry, as the head of the office directing the response to
Muhammad’s allegations, even though all the reasons the SAO withdrew apply in every respect
to Milan. The dissent would let Milan remain, even though the undisputed facts show that Milan
directly supervised the felony review unit and felony trial attorneys when the State arrested,
interrogated, charged, and tried Muhammad. Infra ¶ 175. By fiat, the dissent asserts Milan’s
direct participation in Muhammad’s prior prosecution constitutes neither “actual facts” nor
“actual evidence.” Infra ¶ 150. The dissent appears to require that Milan have personally
- 34 - 1-22-0372
secreted the key to the interrogation room in which Muhammad alleges he remained for four
days straight, thus forcing him to urinate and defecate on the floor. At the same time, the dissent
acknowledges that prosecutors generally “are not disinterested parties to criminal
prosecutions.” Infra ¶ 162.
¶ 101 The central conflict within the dissent, recognizing the significance of Muhammad’s claims
but downplaying the significance of Milan’s involvement, cannot hold. Nor should it. As
Muhammad rightly insists, when an “interested party” acts as a prosecutor, the resulting error
is “fundamental and pervasive.” (quoting [CITATION]). The
undisputed facts of Milan’s prior involvement trigger this court’s duty to remove him. [CITATION]; see [CITATION]. No court should ever tolerate the “risk of actual
bias” that Milan’s personal participation now threatens, or else the scales of justice tip
perilously, breeding resentment and distrust in the criminal system as a whole. See [CITATION].
¶ 102 The dissent’s insistence that Muhammad offer something more as proof than undisputed
evidence underscores the absurdity of Milan’s participation. The dissent insists that Milan was
no judge in his own case. Infra ¶¶ 161-163. But it is no answer to the charge that Milan acts as
a judge in his own case to say he may proceed as he wishes, acting both as advocate and witness.
See [CITATION] (describing “advocate-witness rule,” which bars
attorneys from playing dual roles as advocate and witness in same proceeding). Milan’s dual
participation is inconsistent with the search for truth and guts the reliability of the circuit court’s
“ultimate decision,” as the dissent describes it (Infra ¶ 165).
¶ 103 Finally, Milan argues that in 2017, before accepting his appointment, he obtained an ethics
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opinion from a former senior counsel to the Administrator at the Illinois Attorney Registration
and Disciplinary Commission. According to the opinion that he personally sought from a private
attorney, Milan did not have a conflict of interest in serving as special prosecutor “in the Burge
cases” even though “some of the cases may have been in the State’s Attorney’s system while
you [Milan] were First Assistant or Chief Deputy.”
¶ 104 But this case cannot be classified as a “Burge case” since Burge was suspended in 1991 and
terminated in 1993, years before Muhammad’s case arose. Rather, this case involves allegations
against Detective McDermott, who, after he retired from the police department, became an
investigator for the SAO. Many TIRC decisions, including this one, concern alleged torture by
McDermott. https://tirc.aem-
int.illinois.gov/search.html?q=mcDermott&contentType=everything; see [CITATION], ¶ 44 (noting “[i]nformation on websites and in public records are sufficiently
reliable such that judicial notice may be taken” and collecting examples).
¶ 105 Indeed, the opinion focuses on Rule 1.11(a) of the Illinois Rules of Professional Conduct.
That rule addresses “successive government and private employment,” which is not at all
relevant here. When Milan became special prosecutor, he represented the same governmental
client he did before, not a different client as contemplated by Rule 1.11(a).
¶ 106 Tellingly, the conflict Muhammad alleges does not fit squarely within the type of conflicts
recognized in the rules. But, the concepts expressed in Rule 1.7(a)(2) support rescinding Milan’s
appointment, as Muhammad’s expert witness explained in an affidavit to the circuit court.
¶ 107 Rule 1.7 prohibits a lawyer from representing a client in a matter that “involves a concurrent
conflict of interest.” Ill. R. Prof’l Conduct R. 1.7(a) (eff. Jan. 1, 2010). Subparagraph (a)(2),
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states that concurrent conflict exists where “there is a significant risk that the representation of
one or more clients will be materially limited *** by a personal interest of the lawyer.” [CITATION]. Disqualification under the “material limitation
conflict” provision of Rule 1.7(a)(2) requires a showing that “there is a significant risk that a
lawyer’s ability to consider, recommend or carry out an appropriate course of action for the
client will be materially limited as a result of the lawyer’s other responsibilities or interests.”
[CITATION]. Moreover, “[t]he lawyer’s own
interests should not be permitted to have an adverse effect on representation of a client. For
example, if the probity of a lawyer’s own conduct in a transaction is in serious question, it may
be difficult or impossible for the lawyer to give a client detached advice.” [CITATION].
¶ 108 Milan’s representation of the State as a special prosecutor is materially limited by his
personal interests. Milan supervised felony review attorneys and trial attorneys when
Muhammad was arrested, interrogated, charged, and tried. He was involved in interrogating
felony suspects at that time and received at least one detailed report about the apparent police
torture of a detained suspect in the felony review process. The Commission found sufficient
factual support for Muhammad’s claims that he was tortured in police custody during the felony
review process to warrant judicial examination. The Commission also found evidence that the
police and SAO committed significant Brady violations—multiple witnesses at lineups were
unable to identify Muhammad, and these were covered up and never disclosed.
¶ 109 Regardless of whether Milan was personally involved in interrogating suspects or knew that
[SEGMENT 18]
police officers obtained tortured confessions, he has a personal interest that constitutes a
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====== End of Court Ruling ====== 1-22-0372
conflict. Milan spent nearly 20 years at the SAO, eventually becoming First Assistant.
Allegations of misconduct by SAO, particularly during his tenure as First Assistant, pose risks
to SAO and Milan’s reputation. Bruce A. Green & Rebecca Roiphe, Rethinking Prosecutors’
Conflicts of Interest, 58 B.C. L. Rev. 463, 481 (2017) (prosecutors’ personal interest in their
public image undermines their ability to view evidence objectively and dropping charges may
be viewed as public concession that prosecutor previously made mistake).
¶ 110 Moreover, under the Rules of Professional Conduct, Milan had an ethical duty to supervise
the attorneys under his watch. See Ill. R. Prof’l Conduct Rule 5.1(b) (eff. Jan. 1, 2010) (“lawyer
having direct supervisory authority over another lawyer shall make reasonable efforts to ensure
that the other lawyer’s conduct conforms to these Rules”). Milan is subject to discipline for
failing to make reasonable efforts to ensure those attorneys act ethically. Milan had a personal
interest in avoiding an evidentiary hearing at which the evidence might have exposed that he
violated rules of professional conduct.
¶ 111 Muhammad has the burden of proving the misconduct he alleges that the police as well as
the SAO attorneys engaged in under Milan’s supervision, which could include violations of
Illinois Rule of Professional Conduct 4.1(a) (eff. Jan. 1, 2010) (false statements to third person;
presenting recreated lineup photos at trial, and falsely pretending to be public defender during
Muhammad’s interrogation); Rule 4.4(a) (eff. Jan. 1, 2010) (using “methods of obtaining
evidence that violate the legal rights of *** a person”); Rule 8.4 (eff. Jan. 1, 2010) (engaging
“in conduct involving dishonesty, fraud, deceit, or misrepresentation” or that is “prejudicial to
the administration of justice”). Illinois ethical rules and general principles of due process and
conflicts of interest mandate that a special prosecutor is not involved in the proceeding that will
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adjudicate claims in which he or she has a personal interest and disclose the facts and
circumstances surrounding an actual or potential conflict of interest as soon as he or she
becomes aware of it to the court and affected defendant(s). Ill. R. Prof’l Conduct R. 1.7(a) (eff.
Jan. 1, 2010); [CITATION].
¶ 112 Despite knowing of accusations concerning McDermott and McDermott’s presence in this
case as an alleged torturer, Milan not only continued working the case but, according to the
record, resisted Muhammad’s counsel’s attempt to elicit the facts underlying Milan’s
association with McDermott.
¶ 113 We agree with Muhammad that Milan labored under an actual conflict of interest. Milan’s
removal as special prosecutor fosters public confidence in the impartiality and integrity of our
criminal judicial system. Thus, we need not address Muhammad’s alternative theories.
¶ 114 The Dissent’s Missteps
¶ 115 The dissent’s core contention is that “no actual facts [tie] Milan to Muhammad’s torture or
subsequent prosecution.” Infra ¶ 150. For example, the dissent writes, “[N]othing in the record
*** support[s] the majority’s assertion that Milan had a ‘relationship’ with McDermott ([supra]
¶ 80) or that McDermott’s position with the CCSAO aligned with or overlapped Milan’s work-
related responsibilities ([supra] ¶ 100).” Infra ¶ 149. So, in the dissent’s view, it’s not relevant
that Milan had supervisory authority over everyone in the office. Thus, by fiat, the dissent
excuses Milan’s admitted participation in Muhammad’s prosecution as supervisor. Infra ¶ 149
(demanding proof “McDermott’s position with the CCSAO aligned with or overlapped Milan’s
work-related responsibilities”). The dissent apparently insists on more evidence, something like
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a jointly signed performance review by Milan of McDermott.
¶ 116 Drawing lines (here, around Milan) is a common, though mistaken, move in legal reasoning.
Yet the dissent goes further and mischaracterizes our opinion, the briefing before this court, and
the applicable law. So, we take this moment to correct course.
¶ 117 The dissent’s multiple missteps begin with the standard of review. Like Muhammad’s
briefing, we formulate the key question before this court as one of law, and thus de novo review
applies. See Supra ¶ 81 (citing [CITATION]). The dissent disagrees,
asserting that abuse of discretion standard applies. Infra ¶ 136.
¶ 118 But, like reviewing courts, circuit courts rule on legal questions from time to time. Even the
abuse of discretion standard may require this court to determine “ ‘the legal adequacy of [the]
way the [circuit] court reached its result.’ ” [CITATION] (quoting [CITATION]). And, of course, the
circuit court must exercise its discretion within the bounds of the law. [CITATION]. When the circuit court fails to do so, this court may not sidestep a hard
question of law by falsely invoking judicial modesty. [CITATION] (“legal error is actionable under even the most deferential standard of review”).
¶ 119 The duty to determine hard questions of law dovetails with the duty to decide the questions
before this court to reach a just result sensitive to the need for a sound and uniform body of
precedent. See [CITATION] (“the responsibility of a reviewing court for a just result
and for the maintenance of a sound and uniform body of precedent may sometimes override the
considerations of waiver that stem from the adversary character of our system”).
¶ 120 The issue is whether Milan harbors an “actual conflict of interest” requiring his
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disqualification under section 5/3-9008, given his admitted involvement in Muhammad’s
prosecution. Answering this question requires us to recognize that this term of art, “actual
conflict of interest,” has no statutory definition. Supra ¶ 89. Second, this question requires
examining the full context in which this dispute arose—from an “extraordinary procedure to
investigate and determine factual claims of torture related to allegations of torture[.]” 775 ILCS
/10 (West 2010). Supra ¶¶ 98-99.
¶ 121 The dissent distorts all this, faulting us for “manufactur[ing] a due process theory.” Infra ¶
. A fair reading refutes that kind of specious reasoning. As Muhammad contends the
professional rules of conduct are essential to the just resolution of this issue, which
Muhammad’s expert witness ably applied in an affidavit to the circuit court. And as critical is
Muhammad’s insight that Milan’s involvement undermines the integrity of the proceedings “in
ways known, unknown, and perhaps even unknowable,” “cast[ing] doubt on the procedures in
place to ensure due process under the law.”
¶ 122 Our analysis, which draws together insights from Muhammad and his expert, does not
transform the conflict of interest into anything other than what it is. We agree with the dissent
that, “[u]nder the law[,] it does matter if Milan has a personal interest.” (Emphasis in original.)
Infra ¶ 167. But unlike the dissent, we find critical Milan’s admitted involvement in
Muhammad’s prosecution and relation with McDermott, whose employment at the SAO figured
in the SAO’s conflict.
¶ 123 We do not share the dissent’s farfetched concern that this opinion may require mass
disqualifications. Infra ¶ 164. For the reasons we gave, section 5/3-9008 dictates
disqualification of prosecutors alleged to have committed misconduct against petitioners, and
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the rules of professional conduct and principles of due process also require nothing less.
¶ 124 Conclusion
¶ 125 We reverse the circuit court’s order terminating proceedings under the Act and the circuit
court’s orders denying Muhammad’s motions to rescind Milan’s appointment. We remand for
the appointment of a special prosecutor and an evidentiary hearing on Muhammad’s claim of
torture referred to the circuit court by the TIRC.
¶ 126 We also direct the Clerk of the First Appellate Court to provide a copy of this opinion to the
Illinois Attorney Registration & Disciplinary Commission.
¶ 127 Reversed and remanded with instructions.
¶ 128 JUSTICE TAILOR, concurring in part and dissenting in part:
¶ 129 I concur in the majority’s decision that Judge Lawrence Flood erred in (a) rejecting the
Commission’s definition of a “tortured confession” under the Illinois Torture Inquiry and Relief
Commission Act (Act), [CITATION]; (b) concluding that Muhammad’s
statement was not a “tortured confession” under the Act; and (c) not providing Muhammad an
[SEGMENT 19]
evidentiary hearing on his claim that his statement was obtained through torture. However, I
respectfully dissent from the majority’s decision that then Presiding Judge LeRoy Martin, Jr.,
and his successor, Presiding Judge Erica Reddick erred in denying Muhammad’s successive
motions to rescind Robert Milan’s appointment as special prosecutor in this case. This record
does not show that Milan harbors a conflict of interest, actual or otherwise, and the circuit court
did not abuse its discretion in rejecting Muhammad’s successive bids to have Milan replaced.
¶ 130 The majority removes Milan as special prosecutor finding that his appointment violates
Muhammad’s due process rights. However, Muhammad did not advance a due process theory
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below or on appeal. The majority manufactures a due process theory by quoting from the last
page of Muhammad’s opening brief where he states that Milan should be removed as special
prosecutor because his personal involvement in the Cook County State’s Attorney’s Office
(CCSAO) as a “direct supervisor in the felony review unit and the felony trial attorneys at the
time Muhammad was tortured and tried” undermines the integrity of the proceedings “in ways
known, unknown, and perhaps even unknowable”, “cast[ing] doubt on the procedures in place
to ensure due process under the law.” Supra ¶¶ 83, 97. These quotations come from the section
of Muhammad’s brief arguing that Milan has a conflict of interest under Illinois Rule of
Professional Conduct 5.1(b), which addresses the responsibility of a supervisor for the actions
of his subordinate attorneys. There is no mention of due process in Muhammad’s reply brief.
Muhammad does not cite a single due process case in any of his briefs. The case he does cite,
[CITATION], was not a due process case,
although Justice Blackman in a special concurrence said he would go further than the majority
and also find a due process violation when an interested party’s counsel is appointed to
prosecute a criminal contempt arising out of a civil proceeding. Notably, no other justice joined
Justice Blackman’s concurrence. Yet, somehow the majority concludes from the two quotations
found on the last page of Muhammad’s brief that the “due process clause forms the cornerstone
of [Muhammad’s] challenge” to Milan’s appointment as special prosecutor. Supra ¶ 97
(emphasis added.). Not so. As explained further below, the cornerstone, indeed the only stones,
of Muhammad’s argument to remove Milan is that he has an actual conflict of interest under
section 5/3-9008(a-10) of the Counties Code (55 ILCS 5/3-9008(a-20) (West 2020)) and that
his appointment violates the Rules of Professional Conduct.
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¶ 131 Muhammad advanced numerous arguments below in support of his successive motions to
have Milan removed as special prosecutor: (a) Milan’s initial appointment as special prosecutor
in 2017 violated section 5/3-9008 (a-20) because the court did not first seek out another public
agency that would be willing to serve as special prosecutor before appointing Milan, a private
practitioner; (b) the court did not enter a written order in this case appointing Milan as special
prosecutor in violation of section 5/3-9008(c); (c) Milan harbored a per se conflict of interest
because he worked at the Cook County State’s Attorney’s Office (CCSAO) under then State’s
Attorney Richard Devine, who was found to have an actual conflict of interest in the Jon Burge
cases because he represented Burge when in private practice; (d) Milan had an actual conflict
of interest because of his supervisory role in the CCSAO where he was in the position to charge
Muhammad, trained and supervised the assistant state’s attorneys who allegedly failed to
disclose Brady material when he was supervisor of the Felony Review Unit of the CCSAO, and
was First Assistant State’s Attorney when Detective McDermott, Muhammad’s alleged torturer,
was hired by the CCSAO as an investigator; and (e) an appearance of impropriety existed
because of Milan’s previous employment with the CCSAO and because Milan may be called as
a witness.
¶ 132 In his brief filed in this court, Muhammad argues, inter alia, that Milan has an actual conflict
of interest and his appointment as special prosecutor should be rescinded under section 5/3-
of the Counties Code because: (a) he was the “Bureau Chief at the CCSAO at the very
time Mr. Muhammad was being tortured and tried, which calls into question his impartiality;”
(b) Milan’s role at the CCSAO included supervising the felony review division and the felony
criminal trial attorneys, “the very [assistant state’s attorneys] that Mr. Muhammad claims helped
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to frame him for the murder of Mr. Mims and whose misconduct the TIRC [Torture Inquiry and
Relief Commission] specifically recommended for judicial examination;” and (c) Milan was
“First Assistant at the CCSAO at the very time Mr. McDermott, a serial torturer and one of the
detectives who tortured Mr. Muhammad, was hired by the CCSAO.” Muhammad also argues
that Milan has a conflict of interest under Illinois Rules of Professional Conduct 1.7(a)(2) and
.1(b) for the same reasons. Finally, Muhammad argues that Milan should be removed from this
case because Milan will be called as witness in this case, resulting in an appearance of
impropriety. At oral argument, Muhammad’s counsel stated she was only seeking to have Milan
replaced on a prospective basis.
¶ 133 At no point has Muhammad argued that Milan’s appointment as special prosecutor violated
his due process rights. Arguments not raised in an opening brief are “forfeited.” Ill. S. Ct. R.
(h)(7) (eff. Oct. 1, 2020). Our supreme court has cautioned that “[a] reviewing court should
exercise its power to raise unbriefed issues only sparingly, to avoid assuming a role of advocacy
and being forced to speculate as to arguments the parties might have presented had the issues
been raised.” [CITATION], 237 Ill. 2d 311, 323-24 (2010). Our inquiry should be
whether Milan suffers an actual conflict of interest under section 5/3-9008 (a-10) of the
Counties Code (55 ILCS 5/3-9008 (a-10) (West 2020)) and the Illinois Rules of Professional
Conduct, nothing further.
¶ 134 Despite requesting review of then Presiding Judge Martin’s and Presiding Judge Reddick’s
rulings, Muhammad did not cite the standard of review that is applicable here. Citing [CITATION], the majority contends that because the facts are not in dispute
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our standard of review is de novo. Supra ¶ 81. The majority’s reliance on [CITATION] is misplaced
because there, the defendant claimed that his counsel labored under a per se conflict of interest
under the sixth amendment where the attorney entered into a media contract regarding the case.
Muhammad has not argued at any time that Milan labored under a per se conflict of interest
under the sixth amendment.
¶ 135 In undertaking de novo review, the majority has imposed a far less deferential standard of
review on Muhammad’s only claims, that Milan suffers an actual conflict of interest under
section 5/3-9008 and the Illinois Rules of Professional Conduct. Moreover, and contrary to the
majority’s conclusion, even where the facts are undisputed, the trial court still has discretion in
making certain decisions. [CITATION]. The Counties Code provides that the circuit court “may
appoint” a special prosecutor when the State’s Attorney suffers from an actual conflict of
interest. 55 ILCS 5/3-9008 (a-10) (West 2020); compare with 55 ILCS 5/3-9008 (a-15) (West
) (“the court shall appoint a special prosecutor” when the State’s Attorney recuses).
Because the legislature employed the word “may,” this court has held that the decision to
appoint a special prosecutor rests in the sound discretion of the trial court. [CITATION]. Indeed, our supreme court long ago explained that the statute,
“clearly gives the courts of this State the power to appoint special State’s attorneys under
some circumstances. To properly construe the statute and determine what will and what will
not present a proper case for such appointment clearly involves the exercise of judicial
power, and it is easy to see that different courts might differ as to the extent and character
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of the interest of the Attorney General or State’s attorney which would justify the
appointment of a special officer under the statute.” [CITATION]
¶ 136 Consequently, our review of the circuit court’s decisions to deny Muhammad’s successive
[SEGMENT 20]
motions to rescind Milan’s appointment as special prosecutor under section 5/3-9008 is for an
abuse of discretion only. [CITATION] Likewise,
the determination as to whether counsel should be disqualified under the Rules of Professional
Conduct is left to the sound discretion of the trial court and will not be disturbed on review
absent an abuse of discretion. [CITATION] An abuse of
discretion occurs when the decision of the circuit court is arbitrary, fanciful, or unreasonable,
or where no reasonable person would agree with the position adopted by the court. [CITATION]
¶ 137 No abuse of discretion can be found here. To review, on August 20, 2020, the Office of the
Special Prosecutor (OSP), which Milan led, filed a motion before Judge Flood to terminate the
proceedings in Muhammad’s case. On November 16, 2020, Muhammad filed both a motion to
strike the OSP’s motion to terminate proceedings and a motion to rescind Milan’s appointment
as the special prosecutor on the basis that Milan had not been properly appointed pursuant to
section 5/3-9008 (c) and (a-20), that Milan suffered from the same per se conflict of interest as
prior State’s Attorney Richard Devine, and that Milan suffered from an “actual or apparent”
conflict of interest based on his previous employment with the CCSAO. Milan filed an
objection, arguing that he was properly appointed in the Burge cases pursuant to sections 5/3-
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(c) and (a-20) and that he did not suffer from a conflict of interest based on his previous
positions with the CCSAO. Milan argued that he “did not personally prosecute Muhammad,
made no decisions on the case nor had any involvement in the case whatsoever.” In addition,
Milan argued that then Presiding Judge Martin had recently ruled that the CCSAO, including
State’s Attorney Kim Foxx, “no longer has a conflict representing the State in Burge related
matters” and therefore if Foxx and her office were not conflicted, neither was Milan.
Muhammad filed a reply, arguing again that Milan was not properly appointed under sections
/3-9008 (c) and (a-20) and that Milan suffered from a conflict of interest.
¶ 138 At the hearing on Muhammad’s motion, Milan argued, “this is really a thinly veiled attempt
to forum shop prosecutors[,] the attorney of record in this case since the beginning, Candace
Gorman, is unhappy with decisions I made on both the Muhammad case and the Donald Elam
case, a case that was in front of your Honor.” Milan further argued:
“Let’s fast forward to September 14, 2018. Candace Gorman, the attorney of record on this
case, files a motion with you, your Honor, with Judge Martin -- and me, by the way, notices
me -- asking your Honor to assign the Muhammad case to a judge that never was an
Assistant State’s Attorney. Notices me up on that because she recognized me as the special
prosecutor on these cases since 2017.
On November 7, 2018, Candace Gorman files a notice of motion with you, your Honor,
and with me--again, notices me on it--to appoint a special prosecutor.
On November 20th, 2018, you appointed our office in her presence. She’s in your
courtroom. And on your half sheet, reflects your appointment of our office. No objection by
Candace Gorman about how your-- your appointment of me was unperfected or that I
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have some kind of conflict. Nothing. She wanted us on there.
Between November 20th, 2018 and today, I have more than a dozen emails from
Attorney Candace Gorman to me and the O’Rourke law firm about the Muhammad case.
And I am not going to go through all the dozens of them, your Honor, but I will note two of
them.
January 2019, she reaches out to TIRC for more documentation and to me asking for
more documentation, and TIRC emails both of us. The email goes to Candace Gorman and
to me regarding the materials they are going to send over. There is no objection by
[Ms.] Gorman about my serving as the special prosecutor. She wanted me.
May 2019, she files a Rule to Show Cause against the Chicago Police Department.
She files it in front of Judge Flood and serves me with it in order to get documents from
the Chicago Police Department. No objection to me. She actually serves me on it, wants
me to help her on this.
What then happens? We exchange discovery over months on the Muhammad case. She
calls for a meeting with me in person to talk about the case where she requests a
reinvestigation of the Muhammad case. She hands me this (indicating). This is her request
for new investigation of the conviction of Abdul-Malik Muhammad, pages and pages of
documents that she asks me to review.
And based upon her request, I do so. I tell her that I am going to initiate a reinvestigation.
Don’t confirm that I am going to do a whole investigation. I need to see if what she is telling
me is it accurate and confirm what she does. So I begin to do so. I go through hundreds of
pages of documents to start the reinvestigation.
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As part of that, I interview Mr. Abdul-Malik Muhammad with her, okay. We do a
Zoom interview of Mr. Muhammad. I go through the investigation. I get to the point where
there is just too much evidence against him. All right. There is no way that I can continue
the investigation and bill the County for an investigation that I know is going
nowhere. And I make a determination to proceed against Mr. Muhammad. I inform [Ms.]
Gorman of that, and then I filed a motion to terminate these proceedings in front of Judge
Flood.
It is important to note that during the same period of time, from 2018 to 2020, I am
serving as the special prosecutor on a case called [CITATION], which is a Burge-related
case, and which [Ms.] Gorman was the attorney of record the entire time in front of your
Honor. At no time does she object to my-- does she claim that your appointment of me was
unperfected or the appointment of my office was unperfected or that I had a conflict.”
¶ 139 On December 1, 2020, Judge Martin, then Presiding Judge of the Criminal Division, denied
Muhammad’s motion, finding that Milan’s appointment as special prosecutor in the “[CITATION]”
complied with section 5/3-9008(a-20), and that his appointment in this case likewise
complied with section 5/3-9008(c). Judge Martin further found that:
“[T]his argument that you are raising about how the court went about appointing Mr. Milan
in this particular matter, this issue -- I am just troubled by the fact that this issue is being
raised now all these many years after this was -- this issue first appeared before the court.
And, frankly, I don’t think that that’s — it’s appropriate, and it appears to me that -- as Mr.
Milan has stated, that now this argument arises as Mr. Muhammad is dissatisfied with how
the litigation has gone. And so, that-- that, I find to be-- I find that to be troubling.”
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¶ 140 On January 7, 2021, Muhammad filed a motion to reconsider then Presiding Judge Martin’s
order denying his motion to rescind. Therein, Muhammad again argued that Milan was not
properly appointed pursuant to the statute and Milan’s background as an assistant State’s
attorney prevented him from being named special prosecutor in this case. On January 18, 2021,
Milan filed a motion to strike Muhammad’s motion to reconsider, asserting that Muhammad’s
motion to remove him was untimely, Milan’s appointment was proper under the Illinois statute,
and Milan did not suffer from a conflict of interest. Judge Reddick was named Presiding Judge
of the Criminal Division shortly thereafter. On January 21, 2021, Presiding Judge Reddick
struck Muhammad’s motion for reconsideration of then Presiding Judge Martin’s December 1,
, Order, finding that the motion stated no new grounds and therefore it would be improper
“to reconsider the prior sitting judge’s decision.”
¶ 141 Thereafter, on April 6, 2021, Muhammad filed a “new motion to rescind appointment” on
the grounds that Milan had an actual conflict, this time because Muhammad may call Milan as
a witness. Muhammad stated that defense counsel had uncovered a memorandum addressed to
Milan from an assistant state’s attorney in 1999 in another, unrelated case that arose almost two
years prior to Muhammad’s arrest, describing visible injuries to a suspect’s face after arriving
at the Area 4 police station. The suspect later told the assistant that two unidentified “men”
came into the room and kicked him as he was sleeping on the floor. The suspect did not see the
[SEGMENT 21]
men. The assistant relayed this information to the “Deputy Supervisors in Felony Review.”
Muhammad claimed that this memorandum made clear that “the practice within the CCSAO
was to inform Mr. Milan in instances when police misconduct became known or apparent.”
Milan filed an objection to Muhammad’s successive motion to disqualify on May 18, 2021.
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¶ 142 On July 30, 2021, after hearing argument, Presiding Judge Reddick delivered a lengthy oral
ruling denying Muhammad’s motion. She found that Milan’s initial appointment was proper
and that Muhammad had not “shown sufficient facts and evidence that Milan has a conflict of
interest in this case.” Presiding Judge Reddick’s oral ruling bears quoting at length because she,
like then Presiding Judge Martin, comprehensively explained why Muhammad’s arguments
lacked merit and thoughtfully and cogently exercised her discretion:
“Under the statute, the person bringing the motion, the petitioner in this case, must
plead specific facts to show that the State’s Attorney is either sick, absent, unable to attend,
or has a conflict of interest.
***
Now, in this case, the Court specifically finds that the controlling authority is the
current version of the statute found at 55 ILS -- ILCS 5/3-9008. And based on the
interpretation of that version of the statute, the current version, it does seem to disavow the
[appearance of impropriety] language that was cited. And I believe that[‘s] derived from the
[CITATION] decision, L-A-N-G, with respect to the issue of appearance of impropriety.
***
The Court turns then to the issues of whether the petitioner has shown that Special
Attorney Milan has a conflict of interest under the laws.
Now, the -- part of the claim is really that Milan’s previous positions as supervisor
of the Felony Review Unit and First Assistant State’s Attorney create a conflict in the TIRC
proceedings; that, specifically, Special Attorney Milan was the direct supervisor for the
Felony Review Unit at the time that the petitioner’s case was proceeding; and that he was
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not only responsible for the training of Felony Review Attorneys, but he was also
responsible for their direct supervision. And the Court does clearly consider this claim under
the statutory provision.
In doing so, the Court determines that, although Special Attorney Milan was the
supervisor of the Felony Review Unit, and, again, the petitioner has detailed that he not only
was the supervisor, but he had, in essence, responsibility for these attorneys who
reported to him and that he was responsible for their direct supervision, the Court will
consider that.
Under the standard of the statute as it currently exists, without evidence of Special
Attorney Milan’s direct involvement, the Court does ultimately determine that the conflict
of interest claim is not supported.
***
So returning to the prior point with respect to the conflict, the Court did again
consider and find that the petitioner has not shown that Attorney – Special Attorney Milan
participated directly in or was at all involved in Petitioner’s case beyond his responsibility
as the supervisor. And that without evidence of Attorney Milan’s direct involvement, the
Petitioner’s claim of a conflict of interest is not supported, is not shown.
***
But the Court concludes that even under the standard as it is discussed within the
Relevant authority, it does not appear, again, at this point the petitioner has made an
adequate showing.
Now, the Court does look to our Illinois Rules of Professional Conduct for
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instruction as to how we determine. And if we look at Rule 5.1, that addresses supervising
attorneys. And I’ll just read the formal title, The Responsibilities of Partners, Managers, and
Supervisory Lawyers.
When you look at the language of that particular ethical rule for instruction, for
guidance, it talks about the supervising attorney having to have actual knowledge to be held
accountable for subordinate attorneys’ unethical actions. And I don’t think that’s instructive
because in this instance, and, particularly, in the face of Attorney Milan’s denials during
argument and offer to provide an affidavit, he has stated that he had no involvement or
engagement in the case, direct or otherwise, during the time that he was in the office.
***
However, once again, as we look at the actual controlling language of the law, as
well as how it has been interpreted, it -- again, the petitioner has not made the showing under
the law that at this time there has been a showing that Attorney Milan had any direct
knowledge or participation. And there’s not a showing that he had any actual knowledge
with respect to the actions of either the Felony Review State’s Attorneys who are alleged
to have engaged in certain acts that caused concern and are the basis for claims that are
currently pending before the Court or the Assistant State’s Attorneys who were assigned to
the felony trial division who actually tried the case.
This is important because there were claims that there are police reports that were
not tendered by the State’s Attorneys to the defense before trial, that there was specific
information within the reports that several witnesses, and I believe there might have been
five, were unable to identify the petitioner during the police investigation at the time during
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which he was held in question, that that information was not tendered to defense counsel or
Petitioner Muhammad before trial. And that the significance of these actions by or
inactions by either the Felony Review Assistants or the Assistant State’s Attorneys who
actually tried the case, that those are matters over which Mr. Milan held some
measure of responsibility.
But as the law and the governing provisions and as the Court considers them, to
hold Special State’s Attorney Milan accountable without a showing that he had direct
knowledge would, in essence, set a precedent that every managing or supervising attorney
would be presumed to have actual knowledge of all subordinate attorneys’ conduct. And I
don’t believe that’s the reach of the law at this point. And, again, I’m looking to ethical
rules for guidance as I interpret how the Court should consider the claims here.
I also do note that prior to Attorney Milan’s 2018 appointment as Special
Prosecutor, that he sought and obtained an expert advisory opinion. This was from
an individual named Stephanie, S-T-E-P-H-A-N-I-E, middle initial L, last name Stewart,
S-T-E-W-A-R-T, who was senior counsel to the administrator of the ARDC. And this
individual opined that Special Attorney Milan did not have a conflict of interest that
would prohibit him from serving. And this was based on the finding that his supervisory
role was too attenuated from [Detective McDermott] to create a conflict of interest.
I further note, however, that petitioner also engaged the services of Professor
Andrew, common spelling, Kent, K-E-N-T. And he provided an affidavit analyzing these
very facts before the Court as well and reached an opposite conclusion.
He, in essence, determined that, excuse me, the conclusions of Attorney Stewart
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* * *[f]ailed to directly address the concerns raised by the ethical rules regarding
Rule 1.11 and, specifically, Rule 1.7, excuse me, the conflict of interest.
And, ultimately, the conclusion of the petitioner’s expert is that Attorney Milan does
have a personal interest, in essence, in ascertaining or upholding the work of the State’s
Attorney’s Office because there is a significant risk or that there is a conflict of interest
because -- and I’ll quote here. There is a significant risk that Milan’s representation of the
[CITATION] as a Special Prosecutor in this case will be materially limited by personal interest of
Milan’s.
And it was explained in greater detail. And this was under Illinois Rule of
Professional Conduct 1.7(a)(2).
Again, as the Court looks to the specific issues in this case that arise, the claim of a
significant risk that he will be material[ly] limited, again, is not a sufficient showing under
the language of the statute that there -- if he established that there is evidence that he has an
actual conflict or per se conflict. Even as I look at the language for, again, the appearance
of impropriety, at this stage, based on the information the Court has, I do ultimately
conclude there has not been the showing, the requisite showing.
I do also want to make clear, however, that should additional evidence come forward
showing a direct connection between Special Attorney Milan and the petitioner’s case, his
direct involvement, his direct knowledge, that certainly it will be important that
those matters are brought before the Court because then there would be a showing, and that
is what is not present and what is necessary.”
¶ 143 Presiding Judge Reddick then addressed Muhammad’s claim that Milan suffered from a
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conflict of interest because Muhammad may potentially call him as a witness. Presiding Judge
Reddick stated:
“And in this instance the petitioner has indicated its desire, as well as its intention,
[SEGMENT 22]
to call Special Attorney Milan as a witness with respect to discovering or learning his
information about the procedures, about his supervision of the attorneys involved in the case
back at that time. But, in essence, there really would still need to be a showing for the need
to call Attorney Milan to testify at an evidentiary hearing.
The petitioner specifically alleged that Attorney Milan has important knowledge
regarding the alleged prosecutorial and police misconduct. And that petitioner -- that
counsel expects that once the petitioner is allowed to call Mr. Milan as a witness, he will be
-- the petitioner would be entitled to full discovery, not only as to all the memos from Felony
Review at the pertinent time, but also Mr. Milan’s knowledge of torture by the Chicago
Police Department, the processes in place when confronted with evidence of that torture,
and also the training to his subordinates on this crucial subject. Again, in the face of that,
Attorney Milan stated that he has no personal knowledge of the circumstances of the
petitioner’s case.
And in this instance, even given the wide reaching bases upon which the petitioner
would seek to call Special Attorney Milan, that’s a hurdle that still has to be overcome. It is
not a certainty that he would be called as a witness. There must be a showing that
that is, therefore, necessary information for the matter to proceed.
In this instance it’s as if the petitioner -- and it is -- the petitioner is asking me to
declare that because there might be a conflict I should disqualify him now. And I think it’s
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putting the cart before the horse. There has to be established that there is the conflict to have
him removed. You can’t say there might be a conflict, so remove him.
At this point there has to be a showing, a sufficient showing, that there is enough of
a conflict for that to occur. And I repeat again if there is that showing, this matter should be
brought before the Court for the Court then to make these determinations.”
¶ 144 Finally, Presiding Judge Reddick found that Muhammad forfeited his claim to have Milan
removed as special prosecutor by failing to bring his motion until two years after Milan was
appointed. She stated:
“But I do note that the petitioner has known about Special Attorney Milan’s
appointment as the Special Prosecutor since the beginning stages of this TIRC petition, and
that dates back to 2018. And I note that Judge Byrne had appointed Attorney Milan as
Special Prosecutor back in 2017.
And in this instance the petitioner is the one who sought Special Attorney Milan’s
appointment as Special Attorney for the petitioner’s matters. And after Special Attorney
Milan became engaged with the matter, the discovery process happened, the initial
investigation that Special Attorney Milan conducted, and the petitioner submitted to an
interview with Attorney Milan in the presence of petitioner’s counsel. That only after these
matters occurred and Special Attorney Milan announced that he would proceed with the
prosecution, it was at that time that the initial motion to rescind occurred and then,
ultimately, the new motion that is currently before the Court. * * *
Now, petitioner’s counsel did explain to the Court that it was only after additional
measures she took to obtain information did she become more fully aware of Special
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Attorney Milan’s role as supervisor of the Felony Review Unit at the relevant time. But
even giving consideration to that, the concern for the Court is the timing then of the motions
to rescind while petitioner had knowledge of Special Attorney Milan’s roles within the
State’s Attorney’s Office. And that only after the passage of almost two years, only after
learning that petitioner – that Special Attorney Milan, who pursued the prosecution versus
dismissing it, did then the petition to rescind surface.
And I do think under the language of the term forfeiture, that failure to raise the issue
in a timely manner really speaks to the concern about it being raised now.”
¶ 145 Turning to the law governing this dispute, article VI, section 19, of the Illinois Constitution
provides for the election of a State’s Attorney in each county. Ill. Const. 1970, art. VI, § 19.
The powers and duties of a State’s Attorney include commencing and prosecuting all actions,
civil and criminal, in which the people of the State may be concerned. 55 ILCS 5/3-9005(a)(1)
(West 2020). A special prosecutor may be appointed when the State’s Attorney suffers from an
actual conflict of interest. Id. § 5/3-9008 (a-10). An actual conflict of interest occurs when the
State’s Attorney “is interested in” the case as either (1) a private individual, or (2) an actual
party to the action. [CITATION], ¶ 17. Section 5/3-9008 also applies to the removal of a special prosecutor.
[CITATION]. Milan is not an
actual party to the action, so the only issue is whether he is interested in Muhammad’s case as
a private individual. “When the alleged interest is personal, a defendant must show either (1)
that the relationship involves significant emotional ties; or (2) that defendant suffered ‘actual
and substantial prejudice.’ “[CITATION], 3 (1998) (citing [CITATION]).
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Polonowski, [CITATION]).
¶ 146 Contrary to Muhammad’s argument, the appearance of impropriety is no longer enough to
establish that a prosecutor harbors an actual conflict of interest under section 5/3-9008. Under
the current version of section 5/3-9008, which was amended in 2016 to expressly add the “actual
conflict of interest” language, the party seeking a special prosecutor must demonstrate an actual
conflict of interest, not merely the appearance of impropriety. Farmer, [CITATION]. Therefore, the line of cases under the pre-amended version of the statute that
holds that the appearance of impropriety is sufficient to remove a prosecutor no longer apply.
See e.g. People v. VanderArk, [CITATION] (citing preamended version);
People v. Weeks, [CITATION] (citing preamended version); People v. Lang,
[CITATION] (citing preamended version). The majority correctly points out
that the court in People v. Benford, [CITATION], stated the appearance of
impropriety was enough to disqualify a prosecutor, but that court cited cases interpreting the
pre-amended version of the statute and did not analyze the text of the amended version of the
statute adding the “actual conflict of interest” language.
¶ 147 Muhammad bears the burden of proving by sufficient facts and evidence that the special
prosecutor has an actual conflict of interest in a specific case requiring the appointment of a
new special prosecutor. 55 ILCS 5/3-9008 (a-10) (West 2020); Arrington, [CITATION];
Farmer, [CITATION]. Absent such facts, Milan has no burden
to show that he was not conflicted. Arrington, [CITATION] (distinguishing
People v. Courtney, [CITATION], where prosecutor had a per se conflict,
in which case prosecutor bears burden to show no conflict).
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¶ 148 Our precedents demonstrate that a defendant bears a substantial and exacting burden to
remove a prosecutor on the basis that he has a personal interest in the matter under section 5/3-
of the Counties Code. See e.g. [CITATION] (juvenile’s allegations that two police detectives and an assistant state’s attorney
conspired to present perjured testimony at a probable cause hearing and that the brother of one
of the police detectives was an assistant state’s attorney who was also the supervisor of the
Organized Crimes Division did not show that the state’s attorney was an interested party and,
therefore, should be disqualified); [CITATION] (the trial
court did not abuse its discretion in denying the defendant’s motion for the appointment of a
special prosecutor, which alleged that one of the assistant State’s Attorneys who had initially
been involved in the case was going to testify as a witness at trial regarding an incriminating
statement made by the defendant in court); [CITATION] (“[t]o hold that a special prosecutor must always be appointed whenever a victim or witness is
employed by a state, county, or local agency would be an illogical, as well as impractical,
encroachment upon the authority of a constitutional officer.”); [CITATION], ¶ 62 (finding no abuse of discretion in the trial court’s decision not to appoint a special
prosecutor even though the victim was the brother of the county sheriff and had made campaign
contributions to the state’s attorney); [CITATION], ¶ 20 (no inherent
conflict of interest any time the state’s attorney is called upon to investigate and prosecute
police-involved shootings); [CITATION], ¶ 52 (holding no
special prosecutor was required even though an assistant state’s attorney was the complaining
[SEGMENT 23]
witness against defendant in an unrelated case); [CITATION], 354
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(2010) (holding that the defendant failed to show that the state’s attorney’s public criticism of
his predecessor’s handling of the defendant’s case warranted removal).
¶ 149 Muhammad has failed to meet his initial burden to offer facts or evidence to show that Milan
played any role in Muhammad’s interrogation or prosecution for Mim’s murder. The majority’s
assertion that “the undisputed facts show Milan exercised a quasi-judicial power as Supervisor
of the Felony Review Unit in the Cook County’s State’s Attorney’s Office that charged
Muhammad with first-degree murder” (supra ¶ 94) is as ambiguous as it is misleading, for it
suggests that because Milan supervised the Felony Review Unit he made the decision to charge
Muhammad. But there is no such evidence in the record. Similarly, there is nothing in the record
to support the majority’s assertion that Milan had a “relationship” with McDermott (supra ¶ 80)
or that McDermott’s position with the CCSAO aligned with or overlapped Milan’s work-related
responsibilities (supra ¶ 100). Further, Muhammad has not alleged at any time that any assistant
state’s attorneys working in the felony review unit were present for, played a role in, or were
aware of his alleged torture. There is no indication in the record or in Muhammad’s complaint
that suggests that an assistant state’s attorney was even present when Muhammad provided the
subject statement to Detectives Fidyk and McDermott. And even if Milan was involved in
charging Muhammad, Milan would still not harbor an actual conflict of interest. Muhammad
has not cited any case disqualifying a prosecutor based on police wrongdoing imputed to the
prosecutor. To the contrary, in [CITATION], we held that
allegations of police misconduct were not sufficient to establish that the State’s Attorney was
personally interested in the case, and appointing a special prosecutor without specific facts
would “open the door to requiring a special prosecutor to be appointed any time a police officer
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is suspected of wrongdoing.” Muhammad has not come forth with any evidence showing Milan
participated in, or knew of, Muhammad’s alleged tortured confession.
¶ 150 The majority acknowledges that a defendant must establish an “actual conflict of interest”
under section 5/3-9008 (a-10) for the appointment and removal of a special prosecutor and may
not rely on speculation or suspicion ([CITATION]), but the majority cites no
actual facts tying Milan to Muhammad’s torture or subsequent prosecution and relies solely on
the fact that he held a supervisory position in the CCSAO. Lacking any actual evidence, the
majority improperly engages in speculation and supposition in finding that Milan has an actual
conflict. As Presiding Judge Reddick reasoned, there is simply no evidence of any disqualifying
connection between Milan and Muhammad.
¶ 151 The majority cites [CITATION], for the proposition that when
an error casts doubt on the integrity of a proceeding, we have a constitutional duty to act. Supra
¶ 85. In [CITATION], after a hearing related to the defendant allegedly driving with a revoked license,
an assistant state’s attorney followed the defendant out of court and hid behind potted plants to
watch the defendant drive away from the courthouse. The assistant state’s attorney then
contacted police to inform them that the defendant was driving without a license. [CITATION].
The assistant state’s attorney then prosecuted the case until trial, when another attorney from
the Lake County State’s Attorney’s Office prosecuted the case. [CITATION]. The assistant state’s
attorney who witnessed the alleged crime was the State’s chief witness at trial. [CITATION].
¶ 152 On appeal, the Second District found that the defendant’s prosecution created an appearance
of impropriety because the assistant state’s attorney surreptitiously followed the defendant until
he observed the defendant commit a crime, which resulted in charges. [CITATION]. The reviewing
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====== End of Part of a Court Ruling ====== 1-22-0372
court believed that “the aggressive behavior toward the defendant created the appearance that
the State’s Attorney’s office was obsessed with finding evidence against the defendant to obtain
a conviction against him at all costs.” [CITATION] “These facts created an improper appearance that the
State was too involved with the underlying case to be fair in its prosecution of the defendant.”
[CITATION]
¶ 153 Aside from the obvious factual differences ([CITATION] (“we emphasize that our holding is
based on the specific facts of this case”)), [CITATION] is inapplicable here. [CITATION] does not impose a
duty on this court, constitutional or otherwise, to remove Milan from this case. Rather, the [CITATION]
holding was based on the statutory language, “is interested in any cause or proceeding” in the
preamended version of section 5/3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2014)).
[CITATION] In the 2016 amended version of section 5/3-9008 (a-10), that language has been
replaced with “the State’s Attorney has an actual conflict of interest in the cause or proceeding.”
ILCS 5/3-9008(a-10) (West 2016). This “actual conflict of interest” language forecloses the
possibility of a special prosecutor being appointed where there is the mere “appearance of
impropriety.” [CITATION], ¶ 39.
¶ 154 The majority’s reliance on [CITATION], is also
misplaced because it involved a prosecutor’s per se conflict of interest. There, the defendant’s
former counsel became the state’s attorney of Kankakee County before the defendant’s trial.
The prosecutor assigned to the case assured the court that the Attorney General’s office would
be taking over the prosecution. However, just before trial, the prosecutor announced without
explanation that the Attorney General’s office would not be entering the case and that the State
was ready for trial. The defendant did not object at that point but raised the issue in a posttrial
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motion and on appeal. Under those circumstances, the appellate court overlooked the forfeiture
and reversed the defendant’s conviction, finding that a special prosecutor was required when a
defendant’s trial counsel accepts a managerial position in the office that is prosecuting the
defendant where that attorney was “intimately involved in the defendant’s representation before
becoming State’s Attorney” and made “numerous court appearances on behalf of the defendant
and was clearly privy to the defendant’s confidences.” [CITATION] at 1031, 1034, 1037. Unlike in
[CITATION], Milan never represented Muhammad. Thus, Muhammad did not establish that Milan
suffered an actual conflict of interest under section 5/3-9008 (a-10) on account of a personal
interest in his case.
¶ 155 Nor does Milan suffer a conflict of interest under Rule 1.7(a)(2) or Rule 5.1(b) of the Illinois
Rules of Professional Conduct. Rule 1.7(a)(2) provides: “(a) Except as provided in paragraph
(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if * * * (2) there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer’s responsibilities
to another client, a former client or a third person or by a personal interest of the lawyer.” lll. R.
Prof’l. Conduct (2010) R. 1.7 (a) (eff. Jan. 1, 2010). Rule 5.1(b) provides that “[a] lawyer having
supervisory authority over another lawyer shall make reasonable efforts to ensure that the other
lawyer conforms to the Rules of Professional Conduct.” Ill. R. Prof’l Conduct (2010) R. 5.1(b)
(eff. Jan. 1, 2010).
¶ 156 A party seeking to disqualify counsel under the Rules of Professional Conduct bears the
burden of proving a conflict of interest. [CITATION]. Disqualification is a drastic measure. In re the Commissioner of Banks and
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Real Estate, 327 Ill. App. 3d 441, 478 (2001).
¶ 157 As explained above, Muhammad did not offer any evidence that Milan had a personal
interest in Muhammad’s case. Contrary to Muhammad’s argument, the 1999 memorandum
from an assistant state’s attorney to Milan does not constitute evidence of Milan’s personal
involvement because it describes a separate, unrelated case involving different detectives that
occurred almost two years prior to Muhammad’s arrest. There is similarly no evidence that
Milan, in this supervisory capacity, was aware of any alleged Brady violations that occurred
related to Muhammad’s prosecution. Accordingly, Muhammad failed to meet his burden to
establish that Milan suffered a conflict of interest under Rule 1.7(a)(2) or Rule 5.1(b) of the
[SEGMENT 24]
Illinois Rules of Professional Conduct. Therefore, Judge Reddick did not abuse her discretion
in denying Muhammad’s request to disqualify Milan on this basis.
¶ 158 Unable to find a basis to conclude that Milan suffers an actual conflict of interest under
section 5/3-9008 (a-10) or the Illinois Rules of Professional Conduct, the majority cherry picks
two sentences from the second to last paragraph of Muhammad’s 46-page opening brief,
announces that Muhammad has advanced a due process argument, and sets out to resolve this
phantom argument by repeatedly equating Milan’s role as special prosecutor with that of a
sitting judge. To be clear, the words “due process” appear but once on the last page of
Muhammad’s opening brief and not at all in his reply brief. The majority has manufactured
Muhammad’s due process argument out of the whole cloth, denying Milan an opportunity to
respond, in derogation of our supreme court’s repeated admonition to avoid assuming the role
of advocate. [CITATION] (appellate court raising an issue sua sponte was a violation of well-established principles); [CITATION]
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(2002) (we must refrain from raising unbriefed issues, to avoid having the “effect of
transforming this court’s role from that of jurist to advocate”).
¶ 159 The majority concludes that due process does not allow, and we must not tolerate, the “risk
of actual bias” that Milan’s personal participation in this case presents. Supra ¶¶ 96, 101
(emphasis added.). The majority points out that “decades of torture by Chicago police took
place before the courts and legislature acted” and quotes an article which states that “the crisis
of police torture is more far reaching than the ‘bad apples’ myth suggests.” In so doing, the
majority effectively holds that under a due process analysis, the appearance of impropriety is
sufficient to remove a special prosecutor. Cf. [CITATION] (under the current version of section 5/3-9008, the party seeking a special prosecutor must
demonstrate an actual conflict of interest, not merely the appearance of impropriety). The
implication of the majority’s finding is that Muhammad’s unsupported allegations of guilt by
association are enough to have Milan removed from this case.
¶ 160 The phrase “risk of actual bias” in the due process context is generally found in cases
involving a defendant’s motion for substitution of judge for cause. A motion for substitution of
judge for cause is heard by a second judge, allaying due process concerns, and “ensures that
any substitution coming after a substantive ruling has been made is the result of a proven bias
or high probability of the high risk for actual bias and is not a mere ploy for tactical advantage.”
[CITATION]. However, the forced removal of a judge in
such circumstances requires that actual prejudice, “that is, either prejudicial trial conduct or
personal bias,” be established. [CITATION]. It is not enough for a defendant to allege there is a
potential appearance of impropriety, as it does not equate to actual prejudice. [CITATION]
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v. Klein, [CITATION]
¶ 161 Milan is not a judge, nor is he acting as one here. Nevertheless, quoting [CITATION]
the majority finds that because Milan had quasi-judicial
power as supervisor of the felony review unit that charged Muhammad with first-degree murder,
Milan now has the improper ability to “judge himself and his subordinates” because he is
required to assess “the validity of his original decision to prosecute,” thereby violating
Muhammad’s due process rights. Supra ¶ 94. Again, there is no evidence in the record that
Milan had any role in the decision to charge Muhammad. In any case, Milan in no sense is
acting as a “judge” in this case.
¶ 162 The majority attempts to find a due process violation by equating Milan’s position as special
prosecutor in this case to that of the “sitting justice” in [CITATION], who “had the opportunity to
rule on a collateral appeal by the same defendant when decades earlier as a prosecutor, the
judge had authorized the seeking of the death penalty.” [CITATION] This analogy
falls flat because Milan had no such power in this case. Moreover “there is general agreement
that prosecutors’ participation in a case is not subject to the same conflict of interest rules that
govern judges.” [CITATION] (citing [CITATION]). That is because
prosecutors, unlike judges, are not disinterested parties to criminal prosecutions. [CITATION]
(“Prosecutors need not be entirely ‘neutral and
detached’ “); [CITATION] (“[o]f course, a
prosecutor need not be disinterested on the issue of whether a prospective defendant has
committed the crime with which he is charged”). Moreover, the United States Supreme Court
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does not appear to have expressly recognized a due process right to a conflict-free prosecutor.
See [CITATION], 315 Neb. at 53.
¶ 163 Rather, the farthest the United States Supreme Court appears to have gone is to state that a
prosecutor’s personal conflict of interest “may” “in some contexts raise serious constitutional
questions.” [CITATION], 446 U.S. at 249-50. Regardless, the majority ventures far afield with its
novel “judge in his own case” due process theory. “It is well settled that the American
prosecutor plays a special role in the search for truth: the prosecutor’s interest is in seeing that
justice is done, not winning a case.” [CITATION], 2019 IL App (1st) 181486, ¶ 78 (citing
[CITATION], 229 Ill. 2d 56, 73 (2008) (citing [CITATION], 527 U.S. 263, 281
(1999)). The appointment of a special prosecutor does not change the objective of the office,
nor is there anything in the record showing that Milan’s role as special prosecutor in this case
is inconsistent with the search for truth. The cornerstone of the majority’s analysis – that Milan
became the judge of his own case – crumbles under its own weight because there is no evidence
in the record that Milan had any involvement in Muhammad’s prosecution, let alone any alleged
police or prosecutor wrongdoing. Milan is no more a judge of his own case than any other
prosecutor would be in seeking the truth in this or any other case.
¶ 164 Under the majority’s reasoning, a postconviction petitioner could disqualify a prosecutor by
simply alleging prosecutor or police misconduct because such allegations would call on the
prosecutor to “judge” his own conduct or the decision to prosecute or the conduct of police. But
no court has ever adopted such an expansive due process theory of prosecutor conflict. And for
good reason. Appointing a special prosecutor implicates the public prosecutor’s duty as an
elected officer under the Illinois Constitution to represent the People ([CITATION]).
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App. 3d 499 (1997) (“[t]o hold that a special prosecutor must always be appointed whenever a
victim or witness is employed by a state, county, or local agency would be an illogical, as well
as impractical, encroachment upon the authority of a constitutional officer”)), and the fiscal
purse because counties are responsible for the special prosecutor’s fees (55 ILCS 5/3-9008(b)
(West 2020)). Moreover, TIRC proceedings, like postconviction proceedings, are civil matters.
“Judicial review of a TIRC disposition is a civil proceeding, akin to the third stage of a
postconviction proceeding, which is also civil in nature.” (Internal quotations omitted.). [CITATION].
As this court explained in [CITATION], the Act is unusual in that a claim of torture is considered first by the
Commission and then by the circuit court. “Thinking about the process of a torture claim
through the lens of the more common postconviction process shows that the initial screening of
the claim is roughly comparable to the first stage, the Commission’s inquiry and
recommendations are the second stage, and the circuit court hearing is the third stage evidentiary
hearing.” [CITATION]. “If a matter is referred to [the circuit]
court, a claimant can receive what is referred to in Illinois as a ‘third stage post-conviction
hearing.’ This means that the claimant can have a full court hearing before a judge to show by
a preponderance of the evidence that his confession was coerced.” Id. (citing State of Illinois
Torture and Relief Commission, Mission and Procedure Statement,
http://www.illinois.gov/tirc/Pages/default.aspx (last visited Mar. 1, 2016); See also [CITATION].
¶ 165 The majority misconstrues Milan’s role in these proceedings. As special prosecutor in this
case, Milan’s role was to represent the State. 775 ILCS 40/50(b) (West 2020). Milan was no
[SEGMENT 25]
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more a “judge” in this case than any assistant state’s attorney filing a motion to dismiss or an
answer in a postconviction proceeding. Illinois caselaw is replete with instances of assistant
state’s attorneys representing the People in postconviction cases where petitioners allege that
assistant state’s attorneys and police officers violated their constitutional rights by obtaining
tortured and involuntary confessions or engaging in other misconduct, including specifically
not turning over Brady material. Following the majority’s rationale for its newfound due process
right, a public prosecutor would be disqualified from representing the People in such
proceedings because they would be called upon to judge themselves. However, Milan’s decision
that the evidence against Muhammad in this case is overwhelming, and even insufficient to
warrant an evidentiary hearing, is no more outcome determinative than a prosecutor’s decision
to defend a conviction in a postconviction proceeding. The circuit court makes the ultimate
decision on whether an evidentiary hearing is necessary following a referral by the Commission
and, if so, whether the evidence presented supports a finding for the petitioner. 775 ILCS
/50(a) (West 2020); [CITATION] (“[W]e read the TIRC
Act to require the circuit court to hold an evidentiary hearing upon referral from TIRC, unless
the circuit court finds that the TIRC’s finding of ‘sufficient evidence of torture to merit judicial
review’ was ‘against the manifest weight of the evidence.’ “) (emphasis in original).
¶ 166 The majority then pivots and states that it does not matter if “Milan was personally involved
in interrogating suspects or knew that police officers obtained tortured confessions” because he
“spent nearly 20 years at the SAO, eventually becoming First Assistant” and is trying to protect
his professional reputation. Supra ¶ 106. The majority claims Milan could not possibly be
objective in this case because he has a personal interest in his public image and dropping charges
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====== End of Part ====== 1-22-0372
against Muhammad would be seen as an admission of error that would harm Milan’s reputation.
¶ 167 Under the law it does matter if Milan has a personal interest. Milan’s reputation is not at
issue here. What is at issue here is whether then then Presiding Judge Martin and Presiding
Judge Reddick abused their discretion in denying Muhammad’s motions to remove Milan
pursuant to section 5/3-9008 (a-10) or the Illinois Rules of Professional Conduct. As
Muhammad has not met his burden to prove an actual conflict under section 5/3-9008 (a-10) or
the Illinois Rules of Professional Conduct, I would find that the Presiding Judge Martin and
Presiding Judge Reddick did not abuse their discretion.
¶ 168 There is simply no evidence that Milan or anyone from the CCSAO played a part in the
alleged torture of Muhammad or its alleged coverup or knew of any wrongdoing by Detectives
Fidyk or McDermott in obtaining his alleged tortured confession. The fact that Milan supervised
the Felony Review Unit or was the First Assistant when McDermott was hired is not indicative
of his or the CCSAO’s complicity in the police department’s pattern and practice of torture.
There has to be some actual nexus between Muhammad’s case and Milan’s involvement.
Speculation, supposition and conjecture are not sufficient.
¶ 169 Finally, the majority conveniently ignores the well-reasoned decisions of then Presiding
Judge Martin and Presiding Judge Reddick regarding the suspicious timing of Muhammad’s
motions to rescind Milan’s appointment. Not only did they not abuse their discretion in denying
Muhammad’s motions on the merits, they also did not abuse their discretion in denying
Muhammad’s motions under the principal of forfeiture. Milan argued below and in this court
that Muhammad’s successive motions to rescind his appointment were an effort to shop for a
more favorable prosecutor. Despite specifically requesting that Milan be appointed in this case,
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Muhammad sought to have Milan removed two years after his appointment alleging that Milan
had a disabling conflict of interest, but only once Milan moved to terminate the proceedings in
this case for lack of evidence supporting Muhammad’s claim of torture. Both then Presiding
Judge Martin and Presiding Judge Reddick expressly found that the timing of Muhammad’s
successive motions was highly suspect.
¶ 170 Gorman, however, averred in her affidavit that until mid-September 2020, she “had no idea
that Mr. Milan had been an assistant state’s attorney in a high-ranking role at the time of
[Muhammad’s] arrest, torture, and trial.” It is not clear from Gorman’s affidavit whether she
claims she was unaware that Milan had previously been an assistant state’s attorney or whether
she claims that she was unaware that Milan held a high-ranking position with the CCSAO.
However, Milan points out that the 2017 order appointing him in the “[CITATION]” cases expressly
states that he is a former First Assistant Cook County State’s Attorney. In addition, as Milan
advised then Presiding Judge Martin, he had also been appointed the special prosecutor in the
case of Donald Elam, another client of Gorman’s. Milan advised then Presiding Judge Martin
that he was appointed as the special prosecutor in the Elam case on June 6, 2018, and on August
, 2020, he successfully moved to terminate Elam’s case. At no time did Gorman challenge
Milan’s appointment in the Elam case.
¶ 171 At oral argument, Gorman told us, “It never dawned on me in a million years that the special
prosecutor would be coming from that same office because of the nature of what the special
prosecutor was doing. So, no, this was the person I was told by the State’s Attorney’s Office
was hearing these [CITATION] when they recused themselves and to me it’s still mindboggling that
this is who in fact was appointed.” Yet, as far as the judge who was assigned to hear
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Muhammad’s case, Gorman also told us, “I did ask in my motion for a judge not to have a
former State’s Attorney for a judge because of the potential for bias but as far as Mr. Milan, I
knew nothing about him and I certainly didn’t know he was Head of Felony Review at the very
time my client was being tortured during Felony Review.”
¶ 172 There are many reasons why then Presiding Judge Martin and Presiding Judge Reddick
could have determined that Muhammad’s motions to remove Milan were gamesmanship and
not based on any genuine conflict of interest. In the age of the internet, it is difficult to
comprehend how Gorman was not aware of Milan’s high-ranking position with the CCSAO. In
, Milan had succeeded to the role of special prosecutor in the high profile and newsworthy
[CITATION] cases. There had been substantial media coverage of Milan’s work as special prosecutor
in the [CITATION] cases. By way of example, on July 10, 2019, after Milan was appointed special
prosecutor in this case and 16 months before Gorman filed the first of Muhammad’s successive
motions to disqualify Milan, the Chicago Sun Times published a story under the byline, “Judge
to Reconsider if Special Prosecutor Needed for [CITATION]-Related Case,” identifying Milan as “a
former top deputy to ex-State’s Attorney Richard Devine.” Chicago Sun-Times, July 10, 2019.
In addition, Gorman herself moved for Muhammad’s case to be assigned to a judge who had
not previously worked for the CCSAO, begging the question why she didn’t similarly move as
to the special prosecutor that would be assigned to Muhammad’s case. Further, Gorman’s
affidavit is ambiguous regarding her knowledge of Milan’s prior association with the CCSAO.
Finally, Milan was the special prosecutor in the [CITATION] case with Gorman.
¶ 173 There is a more than ample basis in this record to support then Presiding Judge Martin’s and
Presiding Judge Reddick’s finding that the suspicious timing of Muhammad’s motions to
- 74 - 1-22-0372
disqualify Milan required their denials under the principle of forfeiture. I would find on this
record that Muhammad’s bid to have Milan removed was prompted not by any conflict of
interest but a desire for a more favorable prosecutor, as Milan argued below and on appeal.
¶ 174 Then Presiding Judge Martin and Presiding Judge Reddick did not abuse their discretion in
denying Muhammad’s successive motions to have Milan removed from this case based on an
alleged conflict of interest under section 5/3-9008 (a-10) and the Illinois Rules of Professional
Conduct. Muhammad never raised a due process argument, and in any case his due process
rights were not violated.
¶ 175 Accordingly, I would affirm then Presiding Judge Martin and Presiding Judge Reddick’s
orders denying Muhammad’s successive motions to rescind Milan’s appointment as special
prosecutor in this case.
- 75 - 1-22-0372
[CITATION]
[SEGMENT 26]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 00 CR 13572
; the Hons. Lawrence Flood, LeRoy K. Martin, Erica L.
Reddick, Judges, presiding.
Attorneys H. Candace Gorman, of the Law Office of H. Candace Gorman, of
for Chicago, for appellant.
Appellant:
Attorneys Robert J. Milan, Special State’s Attorney, of Chicago (Alan J.
for Spellberg, Assistant Special State’s Attorney, of counsel), for
Appellee: appellee.
- 76 -
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. LIGHTSPIRIT
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
SHEKINAH N. LIGHTSPIRIT, APPELLANT.
Filed September 3, 2024. No. A-23-733.
Appeal from the District Court for Lancaster County: RYAN S. POST, Judge. Affirmed.
Darik J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
MOORE, RIEDMANN, and BISHOP, Judges.
MOORE, Judge.
INTRODUCTION
Shekinah N. Lightspirit appeals from the order of the district court for Lancaster County,
denying his motion seeking postconviction relief following an evidentiary hearing. Finding no
error, we affirm.
STATEMENT OF FACTS
CONVICTION AND SENTENCE
The charges in this case stemmed from an incident occurring in the early morning hours of
July 24, 2014. Matthew Perry, a homeless man, was sleeping outside his tent in an encampment
located behind the People’s City Mission in Lincoln, Nebraska. A man, later identified by
numerous eyewitnesses as Lightspirit, approached Perry as he slept. Lightspirit threw a heavy
object at Perry, striking him in the head. Perry’s collarbone was also broken during the assault.
Lightspirit fled the scene before police arrived.
Perry was transported to the hospital where he was diagnosed with a depressed skull
fracture. Perry underwent surgery for the injury and was eventually released.
Lightspirit was arrested at Matt Talbot Kitchen later in the morning on the day of the
assault. Matt Talbot Kitchen is about 30 blocks from the People’s City Mission. Lightspirit agreed
to a police interview in which he denied he had been near the People’s City Mission or assaulted
Perry that morning.
Lightspirit was charged with first degree assault. The information was later amended to
add a charge of use of a deadly weapon to commit a felony and an enhancement for being a habitual
criminal.
The matter proceeded to a jury trial. The State presented the testimony of numerous
eyewitnesses who identified Lightspirit as the person who had injured Perry by throwing the heavy
object at his head. The State also presented the testimony of numerous police officers involved in
the investigation, and the doctor who performed the surgery on Perry. Lightspirit testified in his
own defense, claiming he was sleeping in a park near Matt Talbot Kitchen at the time of the assault.
Lightspirit testified that after he woke up, he went directly to the bathroom at Matt Talbot Kitchen,
where he was arrested. The jury found Lightspirit guilty on both counts.
Following an enhancement hearing, the trial court found Lightspirit to be a habitual
criminal and sentenced him to 15 to 25 years’ imprisonment for first degree assault and 10 to 20
years’ imprisonment for use of a deadly weapon to commit a felony. The court ordered that the
sentences be served consecutively and awarded Lightspirit credit for 432 days served. See [CITATION].
DIRECT APPEAL
Lightspirit, represented by appellate counsel, filed a direct appeal asserting that there was
insufficient evidence to support his convictions, that the district court erred in admitting an exhibit
at the enhancement hearing that was not properly authenticated, that his trial counsel was
ineffective in various respects, and that the totality of the circumstances establishes that he did not
receive a fair trial.
This court affirmed Lightspirit’s convictions and sentences. We also noted that the record
was inadequate for our court to address Lightspirit’s assertions that his trial counsel was ineffective
for failing to present additional alibi evidence, for failing to question police about accessing
records, and for failing to call an additional witness, Dakota Heinzen. See [CITATION].
POSTCONVICTION PROCEEDINGS
Lightspirit, then self-represented, filed his original postconviction motion on October 16,
2017, and later was granted leave by the district court to file an amended postconviction motion.
Lightspirit, through postconviction counsel, filed the operative amended postconviction motion on
May 8, 2019. In the district court’s later order addressing Lightspirit’s amended postconviction
motion, it consolidated Lightspirit’s various claims as: (1) trial counsel was ineffective because he
did not call Heinzen as a witness; (2) trial counsel was ineffective because he failed to adequately
cross-examine Officer Pachunka, the assigned officer to the case; (3) trial counsel was ineffective
because he failed to adequately cross-examine four other witnesses; (4) trial counsel was
ineffective because he failed to introduce evidence that witnesses who claimed to have seen the
assault were initially unable to provide a name of the assailant; (5) trial counsel was ineffective
because he failed to file a motion for independent blood testing; (6) trial counsel was ineffective
for not moving to dismiss or for a mistrial based upon police contaminating the crime scene when
they arrived; (7) the county court bound the case over without sufficient probable cause; and (8)
the trial court’s response to the jurors’ question about Heinzen was in error.
On October 7, 2019, the district court ordered an evidentiary hearing on the first two of
Lightspirit’s claims of ineffective assistance of trial counsel: failing to call Heinzen as a witness
and failing to adequately cross-examine Pachunka regarding accessing police reports and
documents. The court deferred ruling on all other claims (3-8 above) raised in the amended
postconviction motion until the evidentiary hearing was held.
An evidentiary hearing was held before the district court on July 17, 2023. Several exhibits
were entered into evidence including: a deposition of trial counsel; a deposition of Heinzen taken
prior to trial; a transcript of Heinzen’s statement to police in July 2014; a transcript of Lightspirit’s
statement to Pachunka in July 2014; a deposition of Pachunka taken prior to trial; and a police
report from Pachunka regarding an incident with Lightspirit in March 2014. We have set forth
details of this evidence as necessary in the analysis section below.
On August 25, 2023, the district court entered an order denying Lightspirit’s claims for
postconviction relief. The court rejected the two claims of ineffective assistance of trial counsel
which had been the subject of the evidentiary hearing, finding the claims to be without merit. We
have set forth further details of the court’s analysis of these issues below. The court also found
Lightspirit’s remaining claims to be procedurally barred as Lightspirit had failed to demonstrate
that any of the alleged issues were unknown to him or not apparent from the record at the time of
his direct appeal.
Lightspirit appeals.
ASSIGNMENTS OF ERROR
Lightspirit assigns, reordered and restated, that the district court erred in (1) rejecting his
postconviction claims that trial counsel was ineffective for failing to call Heinzen as a witness and
failing to adequately cross-examine Pachunka; and (2) finding the remainder of his postconviction
claims to be procedurally barred.
STANDARD OF REVIEW
In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier
of fact, resolves conflicts in the evidence and questions of fact. [CITATION]. An appellate court upholds the trial court’s findings unless they are clearly
erroneous. Id.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law
and fact. [CITATION]. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error. Id. With regard to
the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in [CITATION].
(1984), an appellate court reviews such legal determinations independently of the lower court’s
decision. Id.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which an appellate court reviews independently of the lower court’s ruling. [CITATION],
315 Neb. 445, 996 N.W.2d 859 (2023).
ANALYSIS
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Generally, a motion for postconviction relief cannot be used to secure review of issues that
were or could have been litigated on direct appeal. See [CITATION], 312 Neb. 316, 978 N.W.2d
620 (2022). However, on direct appeal this court found that the record was insufficient to address
Lightspirit’s assertions that his trial counsel was ineffective for failing to present additional alibi
evidence, for failing to question police about accessing records, and for failing to call Heinzen as
an additional witness. See [CITATION], No. A-15-970, 2016 WL 6596094 (Neb. App. Nov.
8, 2016) (selected for posting to court website). Thus, these claims are not procedurally barred.
See [CITATION], 300 Neb. 770, 916 N.W.2d 393 (2018).
To prevail on a claim of ineffective assistance of counsel under [CITATION],
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. [CITATION], supra. To show that counsel’s performance was deficient,
the defendant must show counsel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. To show prejudice under the prejudice component of the
[CITATION] test, the defendant must demonstrate a reasonable probability that but for his or her
counsel’s deficient performance, the result of the proceeding would have been different. [CITATION], supra. A reasonable probability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the outcome. The likelihood of a different result
must be substantial, not just conceivable. Id. The two prongs of this test may be addressed in either
order, and the entire ineffectiveness analysis should be viewed with a strong presumption that
counsel’s actions were reasonable. Id.
Lightspirit asserts that trial counsel was ineffective in failing to call Heinzen as a witness
and failing to adequately cross-examine Officer Pachunka. We will address each claim in turn.
Trial counsel’s deposition and Heinzen’s police statement and deposition were received by
the district court at the evidentiary hearing. In his deposition, trial counsel testified that he recalled
taking Heinzen’s deposition and that Heinzen had testified at the time that he did not know
anything about the assault. After the jury trial had begun, Heinzen then told trial counsel, “if you
call me, I am not going to be helpful to you.”
In Heinzen’s July 2014 statement to police, he stated that he saw Lightspirit assault Perry
with a metal ball. However, at Heinzen’s deposition in August 2015, he testified that he did not
recall any events from July 2014, including making a statement to police. Heinzen further testified
that he did not know Lightspirit and that he was an alcoholic with memory issues.
Trial counsel testified in his deposition that he made the strategic decision not to call
Heinzen as a witness at trial given Heinzen’s inability to recall key events during his deposition
[SEGMENT 2]
and Heinzen’s implication that he would not be a helpful witness for the defense. Trial counsel
believed that calling Heinzen would undermine Lightspirit’s case. Trial counsel also testified that
he had discussed not calling Heinzen with Lightspirit, who appeared in agreement with the
decision.
Lightspirit seems to argue that Heinzen himself could have been the perpetrator of the
assault on Perry, rather than Lightspirit. Lightspirit concedes that because Heinzen was not called
as a witness, it is unknown what Heinzen’s testimony would have been. Lightspirit only asserts
that while Heinzen’s prior police statement was not helpful to Lightspirit’s case, that “does not
mean that Mr. Heinzen’s testimony at trial would have been adversarial to [Lightspirit].” Brief for
appellant at 7. In his amended motion for postconviction relief, Lightspirit additionally asserted
that Heinzen would have supported Lightspirit’s theory that other witnesses were lying, but again
he does not detail what Heinzen’s testimony would be.
In addressing this claim, the district court found that Lightspirit did not allege or
demonstrate what information Heinzen would have provided through his testimony. The district
court also noted that trial counsel had discussed calling Heinzen with Lightspirit, and Lightspirit
did not object to trial counsel’s strategy or insist on calling Heinzen. The court found trial counsel’s
testimony on the matter to be credible. The district court concluded that Lightspirit had failed to
show that trial counsel’s decision was deficient and also failed to establish prejudice. The court
noted that there was no reason to believe the result of the proceeding would have been different
given Heinzen’s denial of knowledge about the assault and that three other witnesses testified to
watching Lightspirit commit the assault.
In our review, we find no clear error in the district court’s factual determinations, and we
agree that Lightspirit has failed to show that counsel’s trial strategy was deficient or that failing to
call Heinzen as a witness was prejudicial. The district court did not err in denying this claim of
ineffective assistance of trial counsel.
Next Lightspirit asserts that trial counsel was ineffective for failing to adequately
cross-examine Officer Pachunka.
On direct appeal Lightspirit argued that his trial counsel was ineffective for “failing to
question one of the investigating officers regarding whether he accessed police reports and
documents related to the case after they were first logged into the online police records system.”
See [CITATION]. He also argued that such an examination may have revealed a
possible police bias against him. Id. This court determined that the claim could not be reviewed as
the record did not reveal whether the officer accessed any documents or what information those
documents contained. Id.
In his amended motion for postconviction relief, Lightspirit asserted that Pachunka wrote
police reports that contained misrepresentations; erroneously claimed to have found the alleged
weapon; provided misleading testimony including that an eyewitness knew Lightspirit or identified
him by name; and said that he did not know Lightspirit when Pachunka’s own reports demonstrated
that he had taken Lightspirit to the hospital months prior to assault. Lightspirit alleged that trial
counsel “failed to demonstrate the sloppy police work of Pachunka and other officers to jurors.”
On appeal, Lightspirit argues that trial counsel was deficient by not adequately
cross-examining Officer Pachunka about who found the steel ball used to commit the assault.
However, Lightspirit does not allege what questions his trial counsel failed to ask, stating only that
“there seems to be a lack of probing cross-examination . . . of the investigating officer.” Brief for
appellant at 7.
Although the district court noted in its order that Lightspirit’s claims in his amended
postconviction motion about trial counsel’s performance related to Officer Pachunka appeared to
be different than the claims alleged on direct appeal, the court nevertheless addressed the merits
of this claim. The court found that trial counsel was not deficient and that Lightspirit was not
prejudiced by the alleged lack of cross-examination regarding who found the steel ball first.
In our review, we find that the claims asserted in Lightspirit’s amended postconviction
motion are procedurally barred. The only issue preserved on direct appeal was whether trial
counsel was ineffective for failing to adequately cross-examine Pachunka regarding accessing
police reports and documents that would establish a police bias. Lightspirit did not adduce
evidence regarding this preserved claim. The additional allegations of ineffective assistance of
counsel regarding the cross-examination of Pachunka were not raised on direct appeal. As a result,
those allegations are now procedurally barred. See [CITATION] (motion for postconviction relief cannot be used to secure review of issues that were known
to defendant and which were or could have been litigated on direct appeal).
The district court did not err in rejecting Lightspirit’s postconviction claims that trial
counsel was ineffective for failing to call Heinzen as a witness and failing to adequately
cross-examine Pachunka. This assignment of error fails.
PROCEDURALLY BARRED CLAIMS
Lightspirit assigns that the district court erred in finding the remaining claims raised in his
amended motion for postconviction relief are procedurally barred. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitutional violations that render
the judgment void or voidable. [CITATION]. The need for finality in the criminal process
requires that a defendant bring all claims for relief at the first opportunity. Id. A motion for
postconviction relief cannot be used to secure review of issues that were known to the defendant
and which were or could have been litigated on direct appeal. Id.
In addition to the two claims analyzed above, Lightspirit asserted four additional claims of
ineffective assistance of trial counsel and two claims related to alleged error by the county and
district courts in his amended postconviction motion. Lightspirit was represented by different
counsel on direct appeal. In his brief, Lightspirit makes only the conclusory statement that he
“could not have known that these issues were needed to be raised on appeal. They were not
apparent to [Lightspirit] on the record, and they are not procedurally barred . . .” Brief for appellant
at 5. This argument does little more than restate the allegations of his assignment of error. An
argument that does little more than restate an assignment of error does not support the assignment,
and an appellate court will not address it. [CITATION]. The district court did not err in finding Lightspirit’s remaining claims to be procedurally barred.
This assignment of error fails.
CONCLUSION
We find no clear error in the factual findings of the district court following the evidentiary
hearing, or in its conclusion that Lightspirit’s preserved claims of ineffective assistance of trial
counsel failed. We also find no error in the district court’s determination that the remaining claims
in the amended motion for postconviction relief were procedurally barred.
AFFIRMED.
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
[CITATION]
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
STEVEN D. JENSEN, APPELLANT.
Filed August 13, 2024. No. A-23-939.
Appeal from the District Court for Sarpy County: STEFANIE A. MARTINEZ, Judge.
Affirmed.
Joseph Kuehl, of Lefler, Kuehl, and Burns Law Office, for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Steven D. Jensen appeals from the denial of his motion for postconviction relief without
an evidentiary hearing. He contends that the district court erred in failing to grant him an
evidentiary hearing on his claims that, during his trial for first degree sexual assault, his trial
counsel was ineffective in failing to impeach the victim on her prior inconsistent statements
regarding when the sexual assault occurred and whether C.S. maintained a friendship with a named
friend throughout high school. For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
TRIAL AND SENTENCING
Between the dates of June 1, 2003, and February 15, 2005, Jensen, who was over 19 years
old, allegedly had sexual intercourse with C.S., who was under the age of 16. C.S. reported the
assault in 2019 after which Jensen was charged with first degree sexual assault. During the jury
trial, which was held in October 2021, a significant amount of evidence was presented on whether
the alleged sexual assault occurred when the victim was under the age of 16. This court
summarized the trial evidence in our determination of Jensen’s direct appeal:
The victim testified that she met Jensen through Gillespie-Jensen sometime
between the end of her freshman year to the beginning of her sophomore year of high
school. At that time, Gillespie-Jensen was dating James Ullman who the victim described
as having grey hair and being older than her parents who were in their mid-to-late 30’s.
The victim and Gillespie-Jensen did not dispute that Ullman gave them rides, provided
them with money for shopping trips, had them model for him afterwards, provided them
with alcohol, and had sexual involvement with both girls. The victim testified that
Gillespie-Jensen introduced her to Jensen at Ullman’s residence so that the victim and
Jensen could “get together” which the victim understood to mean something sexual. The
victim testified that, at some point during that evening, Jensen penetrated her. At that time,
the victim testified she was under the age of 16 and Jensen was over the age of 19. The
victim testified that she did not report the incident until 2019 when she learned that Ullman
was a school bus driver, which made her concerned for the safety of other children, and
that she felt it was necessary to include in her report the encounter with Jensen to provide
the police the “whole truth.” The victim stated that she felt bad having to also report Jensen
because she knew that Jensen and Gillespie-Jensen were now married and were attempting
to have a child.
Gillespie-Jensen testified that she met the victim when they were in junior high
school; that the victim was a year older than her; that she met Ullman around that same
time frame; and that she met Jensen online when she was 14 years old, but that she did not
meet Jensen in person until after she was 16 years old. During her testimony, defense
counsel offered multiple photographs into evidence depicting a timeline of events where
Gillespie-Jensen and the victim were together. Based upon this timeline of events,
Gillespie-Jensen testified that she believed the victim was over the age of 16 at the time
Jensen penetrated her. On cross-examination, Gillespie-Jensen admitted that she was
untruthful during her initial interview with Sergeant German concerning when she met
Jensen, whether Jensen knew Ullman, and whether Jensen knew the victim.
The State called the victim’s mother as a rebuttal witness. During this line of
testimony, the State asked questions about a photograph of the victim in her high school
dance uniform which Gillespie-Jensen used in her timeline to suggest the event depicted
occurred during the victim’s senior year. The victim’s mother testified that the victim only
participated in dance during her freshman year and the photo would have been taken during
the victim’s freshman year. This testimony was consistent with the victim’s testimony on
the same subject.
[SEGMENT 3]
[CITATION] The jury
convicted Jensen of first degree sexual assault and Jensen was sentenced to 6 to 12 years’
imprisonment.
DIRECT APPEAL
Jensen, represented by different appellate counsel, timely appealed his conviction and
sentence assigning as error, inter alia, that his trial counsel was ineffective in failing to properly
impeach C.S. on prior inconsistent statements concerning when C.S. met Jensen and whether C.S.
maintained a relationship with Gillespie-Jensen throughout high school. As we noted in our
opinion, “Jensen argues that counsel’s failure to properly impeach the victim governing this
subject matter compromised counsel’s ability to show the jury that the victim was not a reliable
historian as it relates to the age of the victim at the time of Jensen’s alleged sexual assault.” [CITATION]
This court affirmed Jensen’s conviction and sentence and found that his assignments of
error were without merit, except for Jensen’s claims that trial counsel was ineffective for failing
to properly impeach the victim for her prior inconsistent statements regarding when she met Jensen
and whether she maintained a relationship with Gillespie-Jensen throughout high school. We
determined that the record on direct appeal was insufficient to address those ineffectiveness claims
regarding trial counsel’s alleged failure to properly impeach C.S.
POSTCONVICTION
Jensen timely filed this motion for postconviction relief alleging that he was denied
effective assistance of counsel based upon trial counsel’s failure to impeach the victim on prior
inconsistent statements about when the sexual assault occurred, that the sole challenge at trial was
the timing of the sexual assault, and that had counsel properly impeached the victim the admissions
“would certainly have influenced the jury” thereby resulting in “a different verdict.” He also
alleged that trial counsel was ineffective in failing to impeach the victim regarding prior
inconsistent statements about whether or not the victim maintained a friendship with
Gillespie-Jensen throughout high school. He contends that “[t]here was overwhelming evidence
(including C.S.’s prior inconsistent statements) that C.S. and . . . Gillespie-Jensen were friends
throughout high school” and that “[i]n a case that came down to either believe C.S or . . .
Gillespie-Jensen, this was a very significant failure on the part of trial counsel and would have led
the jury to believe . . . Gillespie-Jensen over C.S.”
In October 2021, the district court denied Jensen’s motion for postconviction relief without
an evidentiary hearing. The district court specifically found:
[Jensen’s] first contention is that trial counsel failed to effectively impeach C.S. on
her prior statements to law enforcement and her deposition about when the assault
happened. The record actually refutes this claim, however, and shows that trial counsel was
able to get the information into evidence and impeach C.S. After reviewing the
postconviction motion and the record before it, the Court finds that the same demonstrates
that [Jensen] has not met his burden to articulate facts which would show he is entitled to
relief based on this contention. Further, the Court finds that [Jensen’s] postconviction
motion does not warrant an evidentiary hearing under either of the Strickland prongs.
[Jensen] failed to allege how trial counsel’s actions fell below an objective standard of
reasonableness and, further, how the deficient performance actually prejudiced the case.
With regard to [Jensen’s] second contention, he asserts that trial counsel failed to
effectively impeach C.S. on her prior inconsistent statements about whether or not she
maintained a friendship with . . . Gillespie-Jensen throughout high school. The Court finds
that this claim is procedurally barred as this is a claim that was or could have been litigated
on direct appeal. . . . Further, the Court finds that [Jensen] failed to allege specific facts
which would show he is entitled to relief. His claim is vague and ambiguous, and not
supported by facts. Instead, the claim is merely conclusory in nature.
Jensen has timely appealed to this court.
ASSIGNMENTS OF ERROR
Jensen contends that the district court erred in failing to grant him an evidentiary hearing
on his claims that his trial counsel was ineffective in failing to impeach C.S. on her prior
inconsistent statements regarding when the sexual assault occurred and whether C.S. maintained
a friendship with Gillespie-Jensen throughout high school.
STANDARD OF REVIEW
When a district court denies postconviction relief without conducting an evidentiary
hearing, an appellate court determines de novo whether the petitioner failed to allege sufficient
facts to demonstrate a violation of his or her constitutional rights as to render the judgment void
or voidable and, if so, whether the files and records affirmatively show that he or she is entitled to
no relief. [CITATION]
ANALYSIS
Jensen contends that the district court erred in failing to grant him an evidentiary hearing
on his claims that his trial counsel was ineffective in failing to impeach C.S. on her prior
inconsistent statements regarding when the sexual assault occurred and whether C.S. maintained
a friendship with Gillespie-Jensen throughout high school.
As this court recently stated in [CITATION]:
Postconviction relief is a very narrow category of relief, available only to remedy
prejudicial constitutional violations that render the judgment void or voidable. [CITATION] An evidentiary hearing is not required on a
motion for postconviction relief when (1) the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s constitutional rights rendering
the judgment void or voidable; (2) the motion alleges only conclusions of fact or law
without supporting facts; or (3) the records and files affirmatively show that the defendant
is entitled to no relief. [CITATION]
To prevail on a claim of ineffective assistance of counsel under [CITATION], the defendant must
show that his or her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. [CITATION] To show
that counsel’s performance was deficient, the defendant must show counsel’s performance
did not equal that of a lawyer with ordinary training and skill in criminal law. [CITATION] To show
prejudice, the defendant must demonstrate a reasonable probability that but for his or her
counsel’s deficient performance, the result of the proceeding would have been different. A
reasonable probability does not require that it be more likely than not that the deficient
performance altered the outcome of the case; rather, the defendant must show a probability
sufficient to undermine confidence in the outcome. See id.
And, as this court noted in [CITATION]:
The district court must grant an evidentiary hearing to resolve the claims in a
postconviction motion when the motion contains factual allegations which, if proved,
constitute an infringement of the defendant’s rights under the state or federal Constitution.
[CITATION]. However, the allegations in a motion
for postconviction relief must be sufficiently specific for the district court to make a
preliminary determination as to whether an evidentiary hearing is justified. Id. An
evidentiary hearing is not required on a motion for postconviction relief when (1) the
motion does not contain factual allegations which, if proved, constitute an infringement of
the movant’s constitutional rights rendering the judgment void or voidable; (2) the motion
alleges only conclusions of fact or law without supporting facts; or (3) the records and files
affirmatively show that the defendant is entitled to no relief. Id.
We note that the allegations required for ineffective assistance of counsel claims differ
based upon whether the claims are raised on direct appeal or postconviction. When a claim of
ineffective assistance of trial counsel is raised in a direct appeal, the appellant is not required to
allege prejudice; however, an appellant must make specific allegations of the conduct that he or
she claims constitutes deficient performance by trial counsel. [CITATION]. In connection with a postconviction claim, the claimant must allege specific
allegations of both ineffective assistance of counsel and prejudice. See, [CITATION] (allegations in motion for postconviction relief must be sufficiently
specific for district court to make preliminary determination as to whether an evidentiary hearing
is justified); [CITATION] (motion for postconviction
relief must adequately allege how defendant was prejudiced by counsel’s actions; prejudice is
shown by establishing that but for deficient performance of counsel, there is reasonable probability
that outcome of case would have been different); [CITATION] (in filing motion for postconviction relief, to be entitled to evidentiary hearing,
defendant’s postconviction motion must state facts actually amounting to prejudice); [CITATION] (motion which alleges only conclusions of
facts or law is insufficient).
Applying these standards to this case, we note that in his direct appeal, Jensen was only
required to make specific allegations of the conduct that he claimed constituted deficient
performance by trial counsel; he was not required to allege prejudice. Based upon that standard,
we found that, although the record on direct appeal was insufficient to allow this court to address
Jensen’s allegations that trial counsel was ineffective for failing to properly impeach C.S.
regarding her prior inconsistent statements about when she met Jensen and whether she maintained
[SEGMENT 4]
a relationship with Gillespie-Jensen through high school, his allegations were sufficient to preserve
those claims.
However, in his motion for postconviction relief, Jensen was required to allege both
specific allegations of both ineffective assistance of counsel and prejudice. We now isolate
Jensen’s allegations of ineffective assistance of counsel and the alleged prejudice in order to
determine whether the court erred in failing to provide Jensen with an evidentiary hearing.
PRIOR INCONSISTENT STATEMENTS REGARDING
WHEN ASSAULT OCCURRED
Jensen first assigns and argues that C.S. testified at trial that she first met Ullman when she
was 13 or 14 years old and that it was “maybe a year” after she met Ullman that she first met
Jensen. As Jensen acknowledges, that would squarely fit C.S.’ narrative that she was under the age
of 16 when the incident occurred. But Jensen specifically alleges and argues that police reports
note that C.S. stated to law enforcement “that it was a year, if not two years after she met Ullman.”
And, in her deposition, C.S. testified that she met Jensen a “couple of years” after she met Ullman.
At trial, C.S. testified that she did not remember making that statement to law enforcement.
Jensen’s counsel attempted to impeach C.S. with the aforementioned statements by reading from
them, but the court sustained the State’s objections for improper impeachment. Jensen argues that
his trial counsel’s failure to impeach C.S. with these prior statements constituted ineffective
assistance of counsel and prejudiced Jensen in that, had the jury been able to hear her prior
statements as contained in the police report and her deposition, the outcome of his trial would have
been different. We disagree.
As we previously noted:
To show prejudice, the defendant must demonstrate a reasonable probability that but for
his or her counsel’s deficient performance, the result of the proceeding would have been
different. A reasonable probability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the outcome.
[CITATION]
We find that Jensen’s specific allegations, as a matter of law, fail to demonstrate prejudice.
In making that finding, we first note that C.S. specifically testified that she did not remember
making the statement to law enforcement. Second, because C.S. testified that she was 13 or 14
years old when she first met Ullman, her prior statements do not necessarily contradict the ultimate
fact that she was under the age of 16 when she met Jensen. Third, the statement made by C.S.
during her deposition that she met Jensen a “couple of years” after she met Ullman does not
contradict her testimony as to when she first met Jensen. And fourth, notwithstanding this loose
timeline, C.S. unequivocally testified that she knew that the sexual encounter with Jensen took
place before her 16th birthday because she was dating her boyfriend when she turned 16 and she
was not dating him at the time that Jensen sexually assaulted her. As the State notes in its brief,
C.S.’s boyfriend “was the father of her child, and thus, it is understandable that she would
remember that she was dating him when she turned 16.” Brief for appellee at 12.
When taken together with C.S.’ consistent testimony that the sexual assault took place
anywhere from the end of her freshman year to the beginning of her sophomore year, we find that
Jensen’s claim that his trial counsel was ineffective for failing to impeach C.S. more directly with
the two prior statements does not show a probability that the outcome of his trial was undermined.
As such, we find that the district court did not err in failing to grant an evidentiary hearing
regarding this assignment of error.
PRIOR INCONSISTENT STATEMENT REGARDING
FRIENDSHIP WITH GILLESPIE-JENSEN
Jensen separately assigns and argues that trial counsel was ineffective for failing to
impeach C.S. with a statement by C.S. governing the timeline of events. He argues that C.S.
testified that she met Gillespie-Jensen while in 8th grade but that they drifted apart and did not
remain friends when she was in high school. Jensen argues that, in her deposition, C.S. testified
that they remained friends for “a few years” after meeting. Jensen argues that prior impeachment
governing C.S.’ prior inconsistent statement would have impacted the outcome of the trial. Again,
we disagree.
Upon our review of the record, C.S. testified during the trial that she and Gillespie-Jensen
remained friends during high school and even after high school. She explained that they drifted
apart, likely because they attended different high schools. Additionally, Jensen’s trial counsel
offered several pictures during the trial demonstrating C.S.’ and Gillespie-Jensen’s friendship
during high school and asked questions related to their interactions. Taken together, we find no
prejudice associated with Jensen’s counsel failing to impeach C.S. with her deposition statement
that she and Gillespie-Jensen remained friends “for a few years” after they met. We find that the
district court did not err in failing to grant an evidentiary hearing governing this specific
assignment of error.
CONCLUSION
Having considered and rejected Jensen’s claims of ineffective assistance of trial counsel,
we affirm the district court’s denial of Jensen’s motion for postconviction relief without an
evidentiary hearing.
AFFIRMED.
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IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. [CITATION]
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JAMAAL R. ABRAM, APPELLANT.
Filed January 23, 2024. No. A-22-869.
Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.
Affirmed.
Patrick McCormick for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, Chief Judge, and MOORE and BISHOP, Judges.
MOORE, Judge.
I. INTRODUCTION
Jamaal R. Abram appeals from the order of the district court for Douglas County, denying
his motion seeking postconviction relief following an evidentiary hearing. Finding no error, we
affirm.
II. STATEMENT OF FACTS
. CONVICTION AND SENTENCE
The charges in this case stemmed from events occurring in Omaha, Nebraska, in June 2008,
when the victim was at a cemetery visiting the grave of her boyfriend, a cousin of Abram, who
committed suicide approximately a year prior. A portion of the boyfriend’s extended family
believed the victim was somehow to blame for the boyfriend’s death. While at the cemetery, the
victim was confronted by Abram’s brother and three female companions and forced to go with
them. According to the brother, if anyone in the family encountered the victim, they were to take
her to the boyfriend’s mother because the boyfriend’s mother wanted to talk to her. Over the course
of several hours, Abram’s brother drove the victim to various locations, during which time he
spoke to Abram numerous times by cell phone. According to the trial testimony of Abram’s
brother, Abram told him to take the victim from the cemetery and directed him where to go.
Eventually, Abram’s brother received a call from a cousin (the brother of the deceased boyfriend),
who directed Abram’s brother to a particular isolated, dead-end location. Upon arriving, the
brother observed the vehicle of the cousin who had called him; he did not see anyone in the
cousin’s vehicle. After the brother parked, facing the cousin’s vehicle, an individual, dressed in
black, wearing gloves, and with a small revolver, came out of some nearby bushes. Both the brother
and the victim testified at trial that they recognized this individual as Abram. Abram shot the victim
multiple times. He then left the scene with the cousin in the cousin’s vehicle, and the brother left
in his vehicle. The victim survived her life threatening injuries.
In October 2008, the State filed an information in the district court, charging Abram with
attempted first degree murder, use of a deadly weapon in the commission of a felony, and criminal
conspiracy. Following trial, the jury found Abram guilty on all three charges. Abram’s first
attorney (referred to herein as “trial counsel”) withdrew, and a second attorney (referred to herein
as “appellate counsel”) was appointed to represent Abram for sentencing and direct appeal. The
court then sentenced Abram to consecutive prison sentences of 40 to 50 years, 40 to 50 years, and
20 to 30 years on the three convictions. See [CITATION].
[SEGMENT 5]
. DIRECT APPEAL
Abram, represented by appellate counsel, filed a direct appeal, asserting that there was
insufficient evidence to sustain his convictions for attempted first degree murder and criminal
conspiracy and that he received excessive sentences. This court affirmed Abram’s convictions and
sentences. We also noted that while Abram’s brief included assertions that his trial counsel was
ineffective for failing to object to various jury instructions, no such issue was assigned as error on
appeal. See [CITATION].
. POSTCONVICTION PROCEEDINGS
(a) Postconviction Motion
On May 20, 2014, Abram, through postconviction counsel, filed his operative
postconviction motion. In his first claim, he alleged that he was denied the right to a fair trial in
various ways, including that the trial court made certain errors, that a key witness for the State
perjured himself, and that prosecutorial misconduct occurred when a trial witness was allowed to
perjure himself. In Abram’s second claim, he set forth multiple allegations of ineffective assistance
of trial counsel. Finally, in his third claims, Abram alleged that his appellate counsel was
ineffective for failing to assign as error or argue that he was denied his right to a fair trial pursuant
to the specific allegations of his first claim, failing to assign as error or argue that trial counsel was
ineffective for the reasons specified in his second claim, failing to assign as error that the trial court
presented improper jury instructions, and failing to properly assign errors in his direct appeal brief
that were deemed waived by this court.
Attachments to Abram’s postconviction motion included two letters from Abram’s brother
(one dated August 19, 2011, and the other undated). The August 2011 letter referenced the brother
feeling bad about having done “the unforgivable” to Abram, having dreams of being at Abram’s
trial “snitching,” having “lied on” Abram at his trial, being “brainwashed” by his own attorney,
and being “prepared a million times” before Abram’s trial “so everything would come out just
right,” including having been informed of “what [the victim] said so [the brother’s] lies would
collaborate with hers.”
In the second letter, the brother stated, “Anyway I realize that I made the most [expletive]
decision I ever made in my miserable . . . life by doing what I did and although you say you forgive
me I don’t forgive myself for that.” Later in the second letter, he stated:
Anyway bout that other shit with these lawyers and shit. Really most of it was my lawyer
relaying messages and shit to me about what they was saying. Telling me shit like if I could
give them more people the better off I would be. He used to try and get me to put [two
individuals] in it. He used to come tell me [the victim] said this so you would have to say
the same so your stories would collaborate. He lied and said you was telling on me. Them
[expletives] always used to be in there coaching me reminding me this is what happened
or this is what [the victim] said. I remember @ the trial my lawyer was like this is what the
prosecutor said happened so this is what your [sic] gonna have to say. Bro listen what you
need me to do write an affidavit or something. Just let me know what[’]s up and I will do
it.
He also stated, “Ay [sic] I love you with all my heart and I regret what I did with every second of
every day.”
The third item attached to Abram’s postconviction motion was an affidavit from the mother
of the victim’s deceased boyfriend. In her affidavit, the mother stated that if she had been called
to testify at Abram’s trial, she would have testified that she never spoke with any family member
about bringing the victim to her so they could talk, that she had spoken with the victim on several
occasions after the boyfriend’s death, and that she had the victim’s contact information and could
have contacted her directly if she had wanted to speak with her.
(b) Evidentiary Hearing
An evidentiary hearing was held before the district court on February 6, 2018, and May 28,
2019. The brother and the cousin testified at the hearing. The court also received depositions from
Abram, Abram’s trial and appellate attorneys, and the brother’s trial attorney; affidavits from the
brother and the prosecutor; and copies of the letters from the brother referenced above. We have
set forth details of this evidence as necessary in the analysis section below.
(c) Ruling
On November 1, 2022, the district court entered an order denying Abram’s claims for
postconviction relief. The court identified Abram’s “basic claims” in support of his motion to be
the denial of his right to a fair trial, ineffective assistance of trial and appellate counsel, the perjured
testimony of his brother, and being “[i]nnocent of the [c]rime.” The court found that each of the
issues raised in Abram’s claim to having been denied the right to a fair trial could have been
brought on direct appeal and were thus procedurally barred. Next, the court addressed the issues
raised in Abram’s claims of ineffective assistance of trial counsel and appellate counsel and found
them to be without merit. The court then addressed the issue of the allegedly perjured testimony
of Abram’s brother, who had identified Abram as the shooter at trial, and found no credible
evidence that the State knowingly used perjured testimony to secure Abram’s conviction. The
court specifically found the testimony of Abram’s brother during the evidentiary hearing not
credible. We have set forth further details of the court’s analysis of this issue below. Finally, the
court addressed Abram’s claim of innocence based on his cousin “now claiming for the first time
that he was actually the shooter in this case,” and not Abram or Abram’s brother. The court noted
case law discussing how a possible postconviction claim of actual innocence might be raised. The
court then discussed the relevant evidence in this case, both from trial and the postconviction
evidentiary hearing, and rejected this claim. In doing so, the court found that the “new testimony”
of the brother (the court referenced Abram’s first name here, but given the reference to “new
testimony,” appears to mean the brother) and his cousin was not credible and did not “overcome”
the trial testimony of the victim identifying Abram as the shooter.
Abram perfected the present appeal to this court.
III. ASSIGNMENTS OF ERROR
Abram assigns, restated, that the district court erred when it failed to find that (1) Abram
was denied the right to a fair trial based on certain specified errors by the trial court, Abram’s
brother perjuring himself, and prosecutorial misconduct with respect to knowingly allowing the
brother to give perjured or false testimony; (2) trial counsel was ineffective in various specified
ways; (3) appellate counsel was ineffective for failing to assign as error or argue that Abram was
“denied his right to a fair trial,” failing to assign that “trial counsel was ineffective,” and failing to
assign error “regarding jury instructions”; and (4) Abram’s postconviction assertions of actual
innocence amounted to a violation of his due process rights.
IV. STANDARD OF REVIEW
In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier
of fact, resolves conflicts in the evidence and questions of fact. [CITATION]. An appellate court upholds the trial court’s findings unless they are clearly
erroneous. Id.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which an appellate court reviews independently of the lower court’s ruling. [CITATION].
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law
and fact. [CITATION]. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error. Id. With regard to
the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), an appellate court reviews such legal determinations independently of the lower court’s
decision. [CITATION].
V. ANALYSIS
. DENIAL OF RIGHT TO FAIR TRIAL
In his first assignment of error, Abram asserts that the district court erred when it failed to
find he was denied the right to a fair trial based on certain specified errors by the trial court,
Abram’s brother perjuring himself, and prosecutorial misconduct with respect to knowingly
allowing the brother to give perjured or false testimony. The issues raised in Abram’s first
assignment of error correspond directly to the issues raised in the first claim set out in Abram’s
postconviction motion. The only issue included in Abram’s first claim, but not in his first
assignment of error, is his assertion of trial court error in failing to sustain his trial counsel’s
motions for a directed verdict.
In the order ruling on Abram’s motion for postconviction relief, the district court found
that every one of the issues raised in Abram’s first claim were or could have been litigated on
direct appeal. The court further found that Abram failed to adduce any evidence or establish that
he was entitled to relief on any of those claims. However, in the section of its order addressing
issues raised in Abram’s postconviction brief, the court separately addressed the issue of perjured
testimony by Abram’s brother and whether Abram had carried his burden of proving that the State
knowingly used perjured testimony from the brother to secure Abram’s conviction.
(a) Issues of Trial Court Error Procedurally Barred
We agree with the district court’s determination that the issues of trial court error raised in
Abram’s first postconviction claim are procedurally barred. Postconviction relief is a very narrow
category of relief, available only to remedy prejudicial constitutional violations that render the
judgment void or voidable. [CITATION]. The need for
finality in the criminal process requires that a defendant bring all claims for relief at the first
opportunity. Id. A motion for postconviction relief cannot be used to secure review of issues that
were known to the defendant and which were or could have been litigated on direct appeal. Id. The
issues of trial court error raised in Abram’s first postconviction claim and again in his first
assignment of error are all issues that could have been brought on direct appeal. The district court
did not err in denying this portion of Abram’s first claim.
(b) Perjured Testimony and Prosecutorial Misconduct
At trial, the brother identified Abram as the shooter; in his testimony during the evidentiary
hearing, he indicated that he “wasn’t exactly sure who the shooter was.” The district court observed
that Abram’s postconviction motion relies upon the argument that there was perjured testimony
adduced from his brother at trial and that the State was aware of this perjured testimony. The court
framed the issue as not one of whether the State’s main trial witness recanted his trial testimony
during the postconviction evidentiary hearing, but rather, whether Abram carried his burden of
proving that the State knowingly used perjured testimony from the brother.
Prosecutors are charged with the duty to conduct criminal trials in such a manner that the
accused may have a fair and impartial trial, and prosecutors are not to inflame the prejudices or
excite the passions of the jury against the accused. [CITATION].
[SEGMENT 6]
misconduct encompasses conduct that violates legal or ethical standards for various contexts
because the conduct will or may undermine a defendant’s right to a fair trial. Id. A prosecutor’s
misconduct that prejudices a defendant’s right to a fair trial violates due process. Id.
Where the testimony is in any way relevant to a case, the knowing use of perjured testimony
by the prosecution deprives a criminal defendant of his or her right to a fair trial. [CITATION]. In a postconviction proceeding, the burden is on the
defendant to establish that the prosecution knowingly used false evidence in securing the
conviction. [CITATION] (superseded by statute on other
grounds as stated in [CITATION]).
The district court found that the brother’s testimony during the evidentiary hearing was not
credible. The court stated:
It was apparent [the brother] only answered questions convenient to him and lacked details
about all facts. The timing of his accusations toward the State and his attorney for feeding
him testimony [at trial] should be questioned in that they arose after the statute of
limitations had run and the State could no longer pursue additional charges that had been
dismissed against [the brother] as part of a plea agreement. [The brother’s] testimony is
self-serving as [the brother] admitted several family members had been upset with him for
testifying during the initial trial.
The district court went on to determine that, even assuming the brother’s trial testimony
was false, Abram had presented no evidence that the prosecution knew or should have known his
testimony was false or perjured at the time of trial. In reaching this conclusion, the court noted the
prosecutor’s affidavit attesting to her belief that the information provided by the brother before
trial and his testimony during trial was “truthful and honest” based on his demeanor and the fact
that his testimony was supported by other eyewitnesses. She also stated in her affidavit that while
she may have asked for more detail on specific topics during their meetings, the brother was never
asked or told to testify to anything that was not truthful. The court also noted the deposition
testimony of the brother’s attorney that after the brother entered a plea to charges against him and
prior to Abram’s trial, the brother never recanted or told his attorney he was not being truthful and
that the brother was never told by the attorney or by the State to testify about certain facts during
Abram’s trial. And, the court noted the consistency between the brother’s trial testimony and the
testimony of the victim. Again, the court stated that the brother’s postconviction testimony was
lacking in detail and not credible, and it found no credible evidence that the State knowingly used
perjured testimony to secure Abram’s conviction.
The district court’s assessment of whether Abram met his burden of proving the State
knowingly used perjured testimony to secure his conviction is consistent with our own review of
the record from the evidentiary hearing. Its findings of fact on this issue are not clearly erroneous.
The court did not err in denying the portion of Abram’s first postconviction claim relating to the
allegedly perjured testimony of his brother and the issue of prosecutorial misconduct.
. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
In his second assignment of error, Abram asserts that the district court erred when it failed
to find that trial counsel was ineffective in various specified ways. In this assignment of error,
Abram sets forth allegations of ineffective assistance of trial counsel that correspond to 12 of the
14 issues of trial counsel ineffectiveness raised in the second claim of his postconviction motion.
Although Abram apparently did not directly address his second claim in his postconviction brief,
the district court addressed each of the issues of trial counsel ineffectiveness raised in Abram’s
second claim. However, we decline to do so. When a defendant’s trial counsel is different from
his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial
counsel’s ineffective performance which is known to the defendant or is apparent from the record;
otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding. [CITATION]. See, also, [CITATION] (where first attorney withdrew and second attorney represented defendant
during hearing on motion to withdraw plea, at sentencing, and on direct appeal, defendant was
required to allege claims of ineffective assistance of first attorney on direct appeal). Abram was
represented by different counsel on direct appeal. Abram did not properly raise any issues of
ineffective assistance of trial counsel on direct appeal. Each of the issues of trial counsel
ineffectiveness identified in Abram’s second assignment of error was known to Abram at the time
of his trial and could have been raised on direct appeal. Abram’s claims of ineffective assistance
of trial counsel are procedurally barred.
. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Abram raised issues of ineffective assistance of appellate counsel in the third claim of his
postconviction motion. It was his first opportunity to do so. Claims of ineffective assistance of
appellate counsel may be raised for the first time on postconviction review. [CITATION].
When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin
by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced
the defendant. [CITATION]. Counsel’s failure to raise
an issue on appeal could be ineffective assistance only if there is a reasonable probability that
inclusion of the issue would have changed the result of the appeal. Id.
The district court denied Abram’s third claim, based on its analysis of his claims of
ineffective assistance of trial counsel and denial of the right to a fair trial, which showed that those
claims would not have had merit on direct appeal. The court also noted the deposition testimony
of Abram’s appellate counsel with respect to counsel’s thoughts on the strength of Abram’s appeal.
Appellate counsel testified that his “initial thought” after reviewing the trial evidence was that he
had “really not much to argue to an appellate court.”
Abram asserts that the district court erred when it failed to find that appellate counsel was
ineffective for “failing to assign as error or argue that Abram was denied his right to a fair trial,”
“failing to assign as error or argue that trial counsel was ineffective,” and “failing to assign error
regarding jury instructions.”
To be considered by an appellate court, an alleged error must be both specifically assigned
and specifically argued. [CITATION]. The third
assignment of error is vaguely stated and does not specifically incorporate the previously alleged
deficiencies by trial counsel. On that basis, we could disregard the assigned error. Nevertheless,
even when considering Abram’s supporting arguments, we conclude the third assigned error must
fail due to lack of specificity.
Abram’s argument in support of his third assignment of error adds little in the way of
specificity. The totality of his argument with respect to ineffective assistance of appellate counsel
is as follows:
The district court erred and abused discretion when it failed to find ineffective
assistance of appellate counsel. Appellate counsel was ineffective for failing to assign as
error or argue that [Abram] was denied his right to a fair trial, the jury instruction issues,
and that trial counsel was ineffective as set forth above in the sections of this brief above.
Appellate counsel failed to assign as error that the district court presented improper
jury instructions, which failed to accurately set forth the law, did not conform to the NJI2d
Crim. Model Jury Instructions and prejudiced [Abram]. Appellate counsel failed to
properly assign errors in his appeal brief that were deemed waived by the Nebraska Court
of Appeals, prejudicing [Abram].
This argument does little more than restate the allegations of his assignment of error. An argument
that does little more than restate an assignment of error does not support the assignment, and an
appellate court will not address it. [CITATION].
Even if we turn to the argument sections in support of Abram’s first and second
assignments of error (concerning the denial of a fair trial and ineffective assistance of trial counsel),
we note that Abram does not specifically argue each of the issues specifically raised in his first
and second assignments of error. And, many of the arguments presented in support of his first two
assignments of error consist only of conclusory statements. For purposes of this third assignment
of error, those conclusory statements do not show a reasonable probability that had his appellate
counsel assigned those issues as error, the result of the direct appeal would have been different.
Conclusory assertions unsupported by coherent analytical argument fail to satisfy the requirement
of arguing an assigned error to obtain consideration by an appellate court. [CITATION].
And, Abram does not argue, specifically or otherwise, each of the issues specifically raised in his
first and second assignments of error.
Because of the generalized and vague nature of Abram’s third assignment of error, his
failure to include an argument in support of that error that does little more than restate the assigned
error, and the conclusory nature of much of the argument in support of Abram’s first and second
assignments of error, we decline to address Abram’s third assignment of error further.
. ACTUAL INNOCENCE
Abram assigns that the district court erred when it failed to find that his postconviction
assertions of actual innocence amounted to a violation of his due process rights. This assignment
of error is based on the cousin’s assertions made during the evidentiary hearing that the cousin was
actually the shooter. The district court addressed this issue in its order denying postconviction
relief, but it noted that Abram’s motion did not mention any claim that the cousin was the shooter
or that Abram was actually innocent. The only mention of the cousin in Abram’s postconviction
motion was his assertion that his trial counsel was ineffective for failing to depose the cousin. The
court stated, “If this claim had any legs, it would have been raised in trial, [Abram’s] appeal, and
[SEGMENT 7]
[Abram’s] initial [postconviction motions].” The court did, however, go on to address the claim of
actual innocence that developed during the course of the evidentiary hearing.
In addressing the claim, the district court first noted “[the cousin’s] self-serving
[postconviction] testimony that is protected by double jeopardy as [the cousin] will be shortly
released from prison from his sentence related to this case.” The court also noted the “ever
changing” testimony from these family members about the shooter’s identity. Specifically, the
court noted that during trial, Abram and his brother each identified the other as being the shooter;
in his postconviction testimony, the brother testified that he was not certain as to the shooter’s
identity, although he knew three men were there; the cousin testified in the postconviction
proceedings that he was the shooter; and Abram’s postconviction testimony states that his trial
testimony was truthful. The court also noted the strength of the victim’s trial testimony identifying
Abram as the shooter. In that regard, the court noted that the victim knew Abram well, she
recognized his appearance and voice, she spoke his nickname during the incident, and he
responded by telling her not to say his name and shooting her. The court concluded that the new
testimony of the brother and the cousin was not credible and did not overcome the trial testimony
of the victim with respect to Abram being the shooter. Accordingly, the court denied Abram’s
claim of actual innocence.
We are not convinced that Abram raised a claim of actual innocence in his postconviction
motion. In an appeal from the denial of postconviction relief, an appellate court will not consider
for the first time on appeal claims that were not raised in the verified motion. [CITATION]
However, because this issue was addressed by the district
court and is addressed by both parties in their briefs on appeal, we consider it briefly.
A claim of actual innocence may be a sufficient allegation of a constitutional violation
under the Nebraska Postconviction Act. [CITATION] The
essence of a claim of actual innocence is that the State’s continued incarceration of such a
petitioner without an opportunity to present newly discovered evidence is a denial of procedural
or substantive due process. [CITATION] The threshold to entitle a prisoner to an evidentiary hearing on a
postconviction claim of actual innocence is extraordinarily high. [CITATION] Such a petitioner must make
a strong demonstration of actual innocence because after a fair trial and conviction, the
presumption of innocence vanishes. [CITATION]
The district court found that the postconviction testimony of the cousin and the brother was
not credible and that the evidence presented in the evidentiary hearing that someone other than
Abram was the shooter did not overcome the strength of the victim’s trial testimony identifying
Abram as the shooter. The court’s findings are consistent with our own review of the evidence and
are not clearly erroneous. The court did not err in denying Abram’s claim of actual innocence.
VI. CONCLUSION
We find no clear error in the factual findings of the district court following the evidentiary
hearing. The court did not err in denying Abram’s motion for postconviction relief.
AFFIRMED.
(Note: As there was no specific part of a court ruling provided, the correct steps have still been demonstrated below based on the instruction.)
Original Text Example:
"In the matter of People v. Whitaker, 2024 IL App (1st) 232009, the court decided... In comparison, the ruling in state-v-galindo was cited frequently. Another related case, People v. Deleon, 2018 IL App (2d) 172343, also contributes to the understanding. Furthermore, Whitaker provides some context, but Jackson v. Board of Election Commissioners, 2012 IL -9- offers a different perspective."
Processed Text:
"In the matter of [CITATION], the court decided... In comparison, the ruling in [CITATION] was cited frequently. Another related case, [CITATION], also contributes to the understanding. Furthermore, [CITATION] provides some context, but [CITATION] offers a different perspective."
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/09/2024 09:07 AM CST
- 563 -
Nebraska Court of Appeals Advance Sheets
Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
State of Nebraska, appellee, v.
Wilbur L. Jackson, appellant.
___ N.W.2d ___
Filed January 9, 2024. No. A-22-903.
. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under [CITATION], the defendant must show that
his or her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense.
. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To show prejudice under the prejudice component of [CITATION],
the defendant must demonstrate a reasonable probability that but for - 564 -
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Nebraska Appellate Reports
STATE V. [CITATION]
Cite as 32 Neb. App. 563
his or her counsel’s deficient performance, the result of the proceeding
would have been different. A reasonable probability does not require
that it be more likely than not that the deficient performance altered
the outcome of the case; rather, the defendant must show a probability
sufficient to undermine confidence in the outcome.
7. Postconviction. The defendant’s verified motion for postconviction
relief is the operative filing before the district court in considering
whether to grant an evidentiary hearing.
8. Postconviction: Appeal and Error. A postconviction court does not
err by failing to consider claims not made in the operative motion for
postconviction relief, which are instead raised in other filings.
9. Postconviction: Effectiveness of Counsel: Appeal and Error. When
a person seeking postconviction relief has different counsel on appeal
than at trial, the motion for postconviction relief is procedurally barred
if the person seeking relief (1) knew of the issues assigned in the post-
conviction motion at the time of the direct appeal, (2) failed to assign
those issues on direct appeal, and (3) did not assign as error the failure
of appellate counsel on direct appeal to raise the issues assigned in the
postconviction motion.
10. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise
a claim on appeal of ineffective assistance of trial counsel (a layered
claim of ineffective assistance of counsel), an appellate court will look
at whether trial counsel was ineffective under the two-part test for
ineffectiveness established in [CITATION]; if trial counsel was not inef-
fective, then the defendant was not prejudiced by appellate counsel’s
failure to raise the issue.
11. Appeal and Error. Generally, an appellate court will find plain error
only when a miscarriage of justice would otherwise occur.
12. Effectiveness of Counsel. Defense counsel is not ineffective for failing
to raise an argument that has no merit.
13. Postconviction: Appeal and Error. The appellate court will not con-
sider allegations not presented to the district court for disposition
through the defendant’s verified motion for postconviction relief or
passed upon by the postconviction court.
Appeal from the District Court for Cass County: Michael
A. Smith, Judge. Affirmed.
Wilbur L. Jackson, pro se. - 565 -
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Nebraska Appellate Reports
[CITATION]
Cite as 32 Neb. App. 563
[SEGMENT 8]
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Moore, Judge.
INTRODUCTION
Wilbur L. Jackson appeals from the order of the district
court for Cass County, which denied his motion for postconvic-
tion relief without an evidentiary hearing. For the reasons set
forth herein, we affirm.
STATEMENT OF FACTS
On March 20, 2020, Jackson was charged by information
with six counts: driving under the influence of alcohol, fifth
offense/aggravated; violating the terms of an ignition interlock
order, with a habitual criminal allegation; leaving the scene of
an accident; reckless driving, second offense; false reporting;
and refusal to submit to a preliminary breath test.
On March 23, 2020, Jackson’s trial counsel filed a motion
to quash the information, alleging the ignition interlock charge
could not be enhanced under the habitual criminal statute with-
out violating established precedent prohibiting double penalty
enhancement. In an order entered on April 9, the district court
denied the motion to quash, finding that there was no “‘stack-
ing’” of enhancements regarding the ignition interlock charge,
as Jackson was subjected to an ignition interlock order due to
a prior conviction. The court reasoned that it was the violation
of that order that was prohibited and punished, not the crime
which had triggered the ignition interlock order.
A bench trial was held on September 30, 2020. The evi-
dence adduced at trial established that on February 3, Jackson
was driving eastbound on U.S. Highway 34 in Cass County
when he moved onto the right shoulder and then made an
abrupt U-turn without signaling, striking another eastbound
vehicle that was traveling behind Jackson and pushing that - 566 -
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STATE V. [CITATION]
Cite as 32 Neb. App. 563
vehicle toward oncoming traffic and into a field where it
struck an embankment. [CITATION] did not stop.
Approximately 5 minutes after the accident, a sheriff’s
deputy, responding to a witness’ call to the 911 emergency dis-
patch service, stopped [CITATION]’s vehicle. [CITATION] denied being
involved in an accident and told the deputy that his brother
had picked him up 5 minutes prior in Shenandoah, Iowa,
approximately 100 miles from the accident site. The deputy
detected the odor of alcohol, along with other mannerisms
indicative of alcohol consumption, and began a driving under
the influence of alcohol investigation. Though [CITATION] agreed
to a preliminary breath test, he repeatedly used his tongue to
block the airflow into the straw and pulled his head back so
that he was not blowing enough air to give a sufficient sample.
The deputy subsequently arrested [CITATION] and transported
him to take a chemical breath test, which demonstrated a .239
breath alcohol content.
Douglas County court records from a 2016 criminal case
and various Nebraska Department of Motor Vehicle records
established that [CITATION]’s license had been revoked for 15
years and he was permitted to drive only with an ignition inter-
lock device. The deputy testified that [CITATION]’s vehicle had no
such device.
On October 7, 2020, the district court entered a judg-
ment of conviction, finding [CITATION] guilty of all counts but
count II, violating the terms of an ignition interlock order
with a habitual criminal allegation, in violation of Neb. Rev.
Stat. § 60-6,211.11 (Cum. Supp. 2018). The court noted that
pursuant to previous court orders, [CITATION]’s driving privi-
leges had been revoked and not yet reinstated. [CITATION] was
allowed to obtain an ignition interlock permit and operate
motor vehicles equipped with an ignition interlock device.
The court noted that Nebraska Supreme Court precedent holds
that § 60-6,211.11 applies only to those who have interlock
permits, with a different statute applying to those who do not
have permits. The court observed that the vehicle driven by - 567 -
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STATE V. [CITATION]
Cite as [CITATION]
Jackson at the time of the offense did not have an ignition
interlock device and that Jackson had not obtained an ignition
interlock permit. Thus, Jackson did not violate § 60-6,211.11,
because it was inapplicable to him.
A sentencing hearing was held on December 21, 2020.
Following argument from the State and Jackson, the district
court asked, “Counsel, we . . . overlooked something here
going forward. I think because . . . the way this case happened,
that I took it under advisement, we didn’t enhance[]. Is the
State prepared to go forward with that?”
After a brief recess, the State offered certified copies of
Douglas County District Court records evidencing Jackson’s
four prior driving under the influence of alcohol convictions
and one reckless driving conviction. The court received the
exhibits and found that they properly enhanced count I, driv-
ing under the influence of alcohol, fifth offense/aggravated, as
well as count IV, reckless driving, second offense.
The district court then sentenced Jackson to a term of 15
to 20 years’ imprisonment for driving under the influence of
alcohol, a term of 6 months’ imprisonment for leaving the
scene of an accident, a term of 6 months’ imprisonment for
reckless driving, a term of 1 year’s imprisonment for false
reporting, and a fine of $100 for refusal to submit to a pre-
liminary breath test. The court ordered that the sentences be
served concurrently, and Jackson was given 323 days’ credit
for time served.
On direct appeal, and represented by different counsel,
Jackson alleged that the district court abused its discretion by
imposing excessive sentences and that there was insufficient
evidence adduced at trial to find him guilty of false reporting.
This court summarily affirmed the district court’s order on
November 3, 2021, in case No. [CITATION].
On June 27, 2022, Jackson, now self-represented, filed
a motion for postconviction relief. In that motion, Jackson
presented claims with respect to his trial and appellate coun-
sel’s failure to contest the State’s presentation of evidence - 568 -
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Nebraska Appellate Reports
[CITATION]
Cite as 32 Neb. App. 563
regarding the habitual criminal enhancement. Jackson also
alleged that his appellate counsel should have argued on direct
appeal that the ignition interlock charge lacked “‘mens rea’”
as determined by the district court, due to its inconsistency
with § 60-6,211.11, and that his appellate counsel did not
review the record, instead using the brief drafted by his trial
counsel for the direct appeal. Jackson further alleged that the
district court committed plain error by engaging in “ex parte
actions” during enhancement, his trial counsel was ineffective
for failing to object to these actions, and his appellate counsel
was ineffective in failing to raise the claim on direct appeal.
The motion for postconviction relief requested an evidentiary
hearing and the appointment of counsel.
On July 11, 2022, the district court entered an order that
deferred its ruling on Jackson’s motion for postconviction
relief until the State had an adequate opportunity to respond.
The court ordered the State to submit a written response by
September 8 and noted that Jackson’s motion for postconvic-
tion relief would be taken under advisement at that time. The
State filed its answer to Jackson’s motion on July 25.
On August 25, 2022, Jackson filed a reply and objection to
the State’s answer. This reply included new claims not asserted
in his original motion for postconviction relief. Jackson alleged
that his trial counsel was ineffective by failing to assert a
facial and as-applied constitutional challenge of the habitual
criminal enhancement. Jackson also alleged that his appel-
late counsel was ineffective by failing to raise the claims on
direct appeal and that the performance of his appellate counsel
amounted to “structural error,” for which Jackson did not need
to make a showing of prejudice. Jackson also reasserted his
claim that his trial counsel was ineffective in failing to object
to judicial misconduct and his appellate counsel had failed to
raise the claim on direct appeal. The reply requested that the
district court liberally construe the claims in his motion for
postconviction relief or, in the alternative, for leave to amend
Jackson’s motion for postconviction relief. - 569 -
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Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
On November 4, 2022, Jackson filed a renewed motion to
amend and for declaratory relief. The renewed motion again
requested leave to amend his motion for postconviction relief
and asked the district court to find the Nebraska Postconviction
Act unconstitutional as it violated Jackson’s due process
and equal protection rights by failing to construe pro se fil-
ings liberally.
On November 14, 2022, the district court entered an order
denying Jackson’s motion for postconviction relief. We have
set forth details of the court’s reasoning in the analysis sec-
tion below.
Jackson appeals.
ASSIGNMENTS OF ERROR
Jackson assigns that the district court erred by (1) not grant-
ing Jackson leave to amend his motion for postconviction
relief; (2) denying Jackson’s motion for postconviction relief
without an evidentiary hearing; and (3) failing to find the
Nebraska Postconviction Act unconstitutional as it applied to
Jackson as a pro se litigant.
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights or that the record and files
affirmatively show that the defendant is entitled to no relief.
State v. Galindo, [CITATION]
ANALYSIS
Requests for Leave to Amend.
Jackson first assigns that the district court erred by fail-
ing to grant him leave to amend his postconviction motion to
“amplify and restate his claims with more certainty.” Brief for
appellant at 11. Jackson argues that his amended postconvic-
tion motion related back to his original motion, that he had
not previously amended his original motion, and that he was - 570 -
Nebraska Court of Appeals Advance Sheets
[SEGMENT 9]
Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
within the 1-year statute of limitations to assert or reassert
claims for relief.
Jackson twice made a request that the district court give
him leave to amend his motion for postconviction relief. As
detailed above, Jackson’s reply and objection to the State’s
answer, and his renewed motion to amend, were filed after the
State filed its answer to Jackson’s motion for postconviction
relief. The district court previously entered an order deferring
its ruling on Jackson’s motion for postconviction relief and
stating that the matter would be taken under advisement at
the time the State submitted a written response to Jackson’s
original motion. Jackson’s first request to amend was filed
31 days after the State’s answer was filed, and thus, the first
request was filed after the matter had been submitted to the
district court for decision. His renewed motion to amend was
filed 102 days after the State’s answer. Although the district
court did not specifically address Jackson’s requests for leave
to amend in its order denying the evidentiary hearing, we
find no abuse of discretion in the court’s implicit denial of
these requests.
In [CITATION], the Nebraska Supreme Court distinguished postconviction
cases from other civil proceedings, holding that a postconvic-
tion action is not an ordinary civil action and that, as such,
the liberal pleading rules that govern civil actions are incon-
sistent with postconviction proceedings. The court found that
postconviction relief is a very narrow category of relief and is
intended to provide relief in those cases where a miscarriage
of justice may have occurred, and not to be a procedure to
secure a routine review for any defendant dissatisfied with his
or her sentence. The Supreme Court explicitly held in [CITATION],
that when a district court refuses to grant
leave to amend an original postconviction motion, an appellate
court reviews that decision for an abuse of discretion, and not
pursuant to the civil pleading rules regarding amendment. - 571 -
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Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
This court has previously held that a district court did not
abuse its discretion in denying a motion to amend when such
motion was filed after the court had already entered an order
denying an evidentiary hearing. See [CITATION]. Additionally, this court has
held that a district court did not abuse its discretion in denying
a motion to amend when such motion was filed before the dis-
trict court had entered an order denying the evidentiary hear-
ing, but well after the court had taken the original motion for
postconviction relief under advisement. See [CITATION].
Jackson did not ask to amend his motion for postconvic-
tion relief at any point prior to the State’s filing its answer,
even though by the time of this filing, his original motion for
postconviction relief had been pending for a month. Instead,
Jackson waited 31 days after the matter had been submitted to
the court for consideration to make his first request to amend.
He provides no indication that such new claims were not avail-
able to him prior to the State’s filing its answer to his original
motion. Given this timing, we do not find that the district court
abused its discretion in implicitly denying Jackson’s requests
for leave to amend. This assignment of error fails.
Motion for Postconviction Relief.
Jackson next assigns that the district court erred in deny-
ing his motion for postconviction relief without an eviden-
tiary hearing. Before turning to Jackson’s specific claims,
we briefly review the legal framework that governs appeals
from the denial of postconviction relief without an eviden-
tiary hearing.
[2,3] Postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional vio-
lations that render the judgment void or voidable. [CITATION]. An eviden-
tiary hearing is not required on a motion for postconviction - 572 -
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STATE V. JACKSON
Cite as 32 Neb. App. 563
relief when (1) the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable;
(2) the motion alleges only conclusions of fact or law without
supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief. [CITATION].
[4-6] To prevail on a claim of ineffective assistance of
counsel under [CITATION], the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defend
ant’s defense. [CITATION]. To show that counsel’s
performance was deficient, the defendant must show coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. [CITATION]. To show prejudice, the
defendant must demonstrate a reasonable probability that but
for his or her counsel’s deficient performance, the result of
the proceeding would have been different. A reasonable prob-
ability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather,
the defendant must show a probability sufficient to undermine
confidence in the outcome. See [CITATION].
[7,8] Jackson raised additional claims in his reply and
objection to the State’s answer that were not asserted in
his original motion for postconviction relief. The defendant’s
verified motion for postconviction relief is the operative fil-
ing before the district court in considering whether to grant an
evidentiary hearing. [CITATION]. A postconviction court does
not err by failing to consider claims not made in the operative motion for post-
conviction relief, which are instead raised in other filings. [CITATION].
Thus we address only those claims Jackson has both asserted
in his motion for postconviction relief and specifically argued
in this appeal.
On appeal, Jackson asserts that the district court’s denial
of his motion for postconviction relief without an evidentiary - 573 -
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STATE V. JACKSON
Cite as 32 Neb. App. 563
hearing was in error, because his trial counsel was ineffec-
tive for failing to adequately challenge the habitual criminal
allegation for the purposes of the ignition interlock charge.
Jackson argues that trial counsel’s motion to quash was not
the proper method by which to challenge the enhancement.
Jackson contends that he was prejudiced by his trial coun-
sel’s deficient performance, because he would have insisted
on going to trial and then entered a plea deal with the State,
which would have resulted in a reduced sentence. Jackson
also argues that his appellate counsel was ineffective in fail-
ing to assign this claim of ineffective assistance as error on
direct appeal.
[9] Jackson was represented by different counsel on appeal
than at trial. When a person seeking postconviction relief has
different counsel on appeal than at trial, the motion for post-
conviction relief is procedurally barred if the person seeking
relief (1) knew of the issues assigned in the postconviction
motion at the time of the direct appeal, (2) failed to assign
those issues on direct appeal, and (3) did not assign as error
the failure of appellate counsel on direct appeal to raise the
issues assigned in the postconviction motion. [CITATION] Because Jackson has
presented a layered ineffective assistance of counsel claim, we
proceed to address the merits of his argument.
In its order denying Jackson’s postconviction motion without
an evidentiary hearing, the district court found that Jackson’s
allegation related to the enhancement on the ignition interlock
charge was conclusory. The district court stated that Jackson’s
contention regarding the possibility of a more favorable plea
offer by the State was “a conclusion of fact for which there
is no basis in the record.” The district court also noted that
Jackson had been found not guilty of the ignition interlock
charge. We agree.
Jackson is unable to make a showing of prejudice on this
claim. Jackson’s trial counsel did file a motion to quash in
an attempt to remove the habitual criminal enhancement prior - 574 -
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STATE V. JACKSON
Cite as 32 Neb. App. 563
to trial, although that motion was denied by the district court.
However, as the district court noted, Jackson was never subject
to a habitual criminal enhancement, because he was found not
guilty of the ignition interlock offense alleged in count II, the
only charge to which the habitual criminal enhancement was
attached. Jackson does not specifically argue what his trial
counsel should have done differently or upon what grounds an
alternative course of trial strategy would have been successful.
He makes speculative assertions without any factual support
from the record that had the habitual criminal allegation been
removed by trial counsel prior to trial, the State would have
offered Jackson a favorable plea deal. See [CITATION].
[10] Because we find that Jackson’s trial counsel was not
ineffective in this regard and that Jackson cannot show preju-
dice, his appellate counsel was not ineffective in failing to
raise the claim on direct appeal. When a claim of ineffective
assistance of appellate counsel is based on the failure to raise
a claim on appeal of ineffective assistance of trial counsel (a
layered claim of ineffective assistance of counsel), an appel-
late court will look at whether trial counsel was ineffec-
tive under the two-part test for ineffectiveness established in
[CITATION]; if trial counsel was not ineffective, then
the defendant was not prejudiced by appellate counsel’s failure
to raise the issue. [CITATION].
Next, Jackson asserts that the district court’s denial of his
motion for postconviction relief without an evidentiary hear-
ing was in error, because his trial counsel was ineffective in
failing to object to judicial misconduct. Jackson points to the
district court’s directing the State to present its evidence for
enhancement related to the driving under the influence of
alcohol charge at sentencing. Jackson alleges that the district
court committed plain error by engaging in ex parte actions
and thus violating the Nebraska Revised Code of Judicial
Conduct. Jackson also argues that his appellate counsel was - 575 -
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[SEGMENT 10]
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STATE V. JACKSON
Cite as 32 Neb. App. 563
ineffective in failing to assign this claim of ineffective assist
ance as error on direct appeal. Had his appellate counsel
assigned this claim, Jackson contends, then his direct appeal
would have favored him.
In its order, the district court found that Jackson’s allega-
tions regarding perceived irregularities at the sentencing hear-
ing did not constitute a violation of Jackson’s constitutional
rights or show that Jackson was entitled to relief.
[11] Generally, an appellate court will find plain error only
when a miscarriage of justice would otherwise occur. [CITATION]. A review
of the record reveals that the district court did not direct the
State to present its enhancement evidence. Rather, the district
court observed that enhancement had not yet occurred and
inquired as to whether the State wished to proceed with its
enhancement evidence. Although the Nebraska Revised Code
of Judicial Conduct prohibits judicial ex parte communica-
tions, the inquiry in this case occurred on the record during a
sentencing hearing where all parties were present. The record
affirmatively refutes that the district court engaged in ex parte
communications, and Jackson cites to no other authority for the
basis of the alleged judicial misconduct.
[12] We do not find that the district court’s actions amount
to plain error, and as such, Jackson’s trial counsel was not
ineffective in failing to object and his appellate counsel was
not ineffective in failing to raise the claim on direct appeal.
Defense counsel is not ineffective for failing to raise an argu-
ment that has no merit. [CITATION].
Jackson also argues that the district court’s denial of his
motion for postconviction relief without an evidentiary hear-
ing was in error, because his appellate counsel was ineffec-
tive for failing to review the record and using an appellate
brief authored by Jackson’s trial counsel. Jackson asserts that
had his appellate counsel minimally investigated the facts
of the case, he would have discovered many errors. Jackson - 576 -
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Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
contends that these actions amount to deficient performance
“causing a detrimental disposition during direct appeal
against [him].”
Though the district court did not specifically address this
claim in its order, it did find that all claims raised by Jackson’s
motion for postconviction relief were “procedurally barred,
insufficiently pled, [or] affirmatively refuted by the record, or
[that Jackson] cannot establish prejudice.”
We agree that this claim is insufficiently pled. Jackson has
not specified what errors his appellate counsel should have
discovered or how using a brief allegedly prepared by his trial
counsel caused a detrimental disposition. Jackson does not
detail arguments he believes his appellate counsel could have
successfully set forth in a brief on appeal.
Because Jackson’s claims asserted in his motion for postcon-
viction relief are unable to establish that he suffered prejudice,
are affirmatively refuted by the record, or are insufficiently
pled, Jackson was not entitled to an evidentiary hearing. The
district court did not err in so finding. This assignment of
error fails.
Constitutional Claim.
Finally, Jackson assigns that the district court erred in
failing to find the Nebraska Postconviction Act unconstitu-
tional as it applied to Jackson as a pro se litigant. Jackson
first raised his constitutional claim regarding the Nebraska
Postconviction Act in his renewed motion to amend and for
declaratory relief. The district court did not address this claim
in its order denying the evidentiary hearing. As we discussed
above, a defendant’s verified motion for postconviction relief
is the operative filing before the district court in considering
whether to grant an evidentiary hearing. See [CITATION].
Additionally, Jackson was not given leave by the district court
to amend his original motion for postconviction relief, which
implicit ruling we have found did not constitute an abuse of
discretion. Thus, - 577 -
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Nebraska Appellate Reports
STATE V. JACKSON
Cite as 32 Neb. App. 563
the district court did not err in failing to address Jackson’s
constitutional claim.
[13] Furthermore, the appellate court will not consider
allegations not presented to the district court for disposition
through the defendant’s verified motion for postconviction
relief or passed upon by the postconviction court. See [CITATION]. This
assignment of error fails.
CONCLUSION
The district court did not err in denying Jackson’s motion
for postconviction relief without an evidentiary hearing.
Affirmed.
2023 IL App (1st) 220372
No. 1-22-0372
Opinion filed December 22, 2023
SIXTH DIVISION
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
)
v. ) No. 00 CR 1357201
)
)
ABDUL MALIK MUHAMMAD, ) Honorable
) Lawrence Flood,
Defendant-Appellant. ) LeRoy K. Martin, Jr.
) Erica L. Reddick,
) Judges Presiding
______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justice C.A. Walker concurred in the judgment and opinion.
Justice Tailor concurred in part and dissented in part, with opinion.
OPINION
¶1 For more than two decades, scores of criminal convictions in Chicago have been reversed
due to confessions elicited through torture. This appeal involves allegations of a tortured
confession and a conflict of interest by the special prosecutor appointed to probe it. Our
determination of these two issues impacts the fairness, transparency, and effectiveness of the
process established to redress a notorious injustice that has blemished the reputation of the
Chicago Police Department and the overwhelming majority of officers who faithfully serve
with honor. 1-22-0372
¶2 Abdul Malik Muhammad, convicted of a 1999 shooting death, made allegations to the
Illinois Torture Inquiry and Relief Commission that police officers of Area 2 extracted a
statement from him through torture. In 2018, the Commission supported Muhammad’s claim,
which required Muhammad to move the circuit court to appoint a Special State’s Attorney. In
similar cases, [CITATION] was named the Special State’s Attorney. [CITATION]’s appointment
followed the decision by the Cook County State’s Attorney’s Office that it could not be involved
because an alleged torturer of Muhammad, Detective Michael McDermott, had worked for the
State’s Attorney’s office as an investigator after he retired from the Chicago Police Department.
¶3 [CITATION] later filed a motion to terminate the proceedings, arguing that Muhammad’s
“confession” fell outside the Act’s purview. The circuit court granted [CITATION]’s motion without
an evidentiary hearing.
¶4 Meantime, Muhammad’s counsel challenged [CITATION] as having a conflict of interest like that
of the State’s Attorney’s Office and sought to rescind [CITATION]’s appointment. The circuit court
denied several attempts to remove him.
¶5 Muhammad argues that the circuit court erred in dismissing his claim without an evidentiary
hearing and refusing to remove [CITATION] due to an actual conflict of interest. We agree because
[CITATION] is in the unusual position of having to judge himself and those who were his subordinates.
¶6 At the evidentiary hearing on remand, the circuit court should decide the merits of
Muhammad’s claim that he was tortured into giving the statement as well as the possible Brady
violation relating to the State’s alleged failure to disclose that Muhammad participated in
multiple lineups in which several witnesses did not identify him.
1-22-0372
¶7 While the panel is unanimous on the disposition concerning the evidentiary hearing on
remand, there is disagreement on the second issue involving Milan’s conflict of interest. In light
of all that Milan has disclosed in the record, we find that his staying on as special prosecutor
violates Muhammad’s right to a prosecutor unencumbered by conflicting loyalties and
potentially prejudicial inclinations.
¶8 The dissent, however, finds no grounds to remove Milan. This approach deprives
Muhammad of his right to a prosecutor unencumbered by conflicting loyalties and potentially
prejudicial inclinations, all of which cast doubt on the integrity and legitimacy of the entire
process. Had Milan been forthcoming at the hearing on his appointment, the judge, with input
from Muhammad’s counsel, would have been able to resolve his eligibility to serve. Instead,
Milan remained silent, earning thousands of dollars in compensation and overseeing a case
involving an underling at the State’s Attorney’s Office who Mohammad alleged had tortured
him when he was a police officer. His actual conflict exposed, Milan cannot remain in place.
[SEGMENT 11]
As recognized almost 100 years ago, “No system of justice can rise above the ethics of those
who administer it.” National Wickersham Commission on Law Observances and Law
Enforcement, 1929. Accordingly, we reverse the circuit court’s orders denying Muhammad’s
motions to rescind Milan’s appointment and remand for the appointment of a special prosecutor
free of conflicts of interest.
¶9 Background
¶ 10 The State charged Muhammad with three counts of first-degree murder and two counts of
aggravated discharge of a firearm for the May 4, 1999, shooting death of Damone Mims.
1-22-0372
Following conviction by a jury, Muhammad was sentenced to 50 years’ imprisonment. [CITATION]
¶ 11 In 2014, Muhammad submitted a claim of torture to the Illinois Torture Inquiry and Relief
Commission (TIRC) under section 40/45 of the Act (775 ILCS 40/45 (West 2018)) alleging (i)
he had been “interrogated for four days at Area 2 in a cell that did not have a bed, food, toilet,
or water,” (ii) “Detective [Michael] McDermott threatened him, boasting that he ‘kn[ew] how
to get [Muhammad] to confess without leaving a mark’ “ and “aggressively slammed a large
casefile on the table, closed the interrogation room door and told his colleagues *** that he
needed a moment alone with [Muhammad],” (iii) alone with Muhammad, McDermott used
racial intimidation by telling him that “a jury would be more likely to believe white witnesses
than a black defendant,” and (iv) during two of four lineups, Muhammad was “forcefully held”
by the arm.
¶ 12 Muhammad’s alleged statement was included in a police report prepared by Detective
McDermott. Detective Fidyk, McDermott’s partner, testified at trial that Muhammad made
admissions during an interview after being Mirandized. According to Fidyk, Muhammad told
him that “he was a Vice Lord. Member of the Vice Lord street gang from around 79th and
Dobson. He denied any knowledge of the aggravated battery case report, which he was the
victim, the one that was assigned to myself. He said he had no knowledge of the murder and
knew that there was an arrest warrant for him regarding this case and he went to Washington.”
On redirect, Fidyk testified that Muhammad “stated that he knew of the warrant for his arrest
and he decided to move to Washington to turn his life around.”
1-22-0372
¶ 13 The Commission investigated Muhammad’s claims. When questioned by the Commission
staff, Muhammad’s “allegations expanded, and he claimed he was actually beaten by
McDermott with a case file on the head, denied food, forced to urinate on the floor and to
defecate into a shirt in his interrogation room because he was denied bathroom use.” According
to the Commission, Muhammad never claimed he had been abused at trial or on appeal. The
Commission further stated, “[Muhammad]’s own attorney noted to [the Commission] that ***
there was no ‘confession’ in the traditional sense *** only partially incriminating statements.”
¶ 14 The Commission voted on July 18, 2018, to refer the matter for judicial review, though it
noted “severe reservations about [Muhammad]’s credibility in regards to his claims of physical
abuse.” Yet, the trial record indicates that Muhammad asserted an alibi defense and argued his
statement collaborated with his alibi defense. At trial, Muhammad’s grandmother, Flora
Walker, testified that Muhammad came to stay with her in Seattle on May 3, 1999, the Monday
before Mother’s Day and the day before Mims’ murder, because he had been beaten up. She
picked up her grandson at the airport between 12:15 and 1:00 p.m. In closing argument, defense
counsel used Muhammad’s statement to Detective Fidyk to reinforce Muhammad’s mother’s
testimony that Muhammad had left for Seattle long before police ever issued the warrant.
¶ 15 At the jury instruction conference, defense counsel said Muhammad wanted to “turn this
into a second-degree murder case.” Before closing arguments, defense counsel asked for a
“second degree instruction because there is some evidence that my client was the victim of a
beating” on May 1st. The State objected. The trial judge recognized that Muhammad may be
entitled to instructions on inconsistent defenses but denied the request, finding “there is no
testimony that he was acting in the heat of passion.”
1-22-0372
¶ 16 The Commission concluded that even though Muhammad had not confessed to the murder,
the statement he made to Fidyk came within the Commission’s administrative rule of a “
‘tortured confession’ includ[ing] any incriminating statement, vocalization, or gesture alleged
by police or prosecutors to have been made by a convicted person that the convicted person
alleges were a result of (or, if the convicted person denies making the statements, occurred
shortly after) interrogation that the convicted persons claims included torture.” 20 Ill. Adm.
.10. The Commission further stated that the involvement of “[Jon] Burge Detective”
McDermott, who had well-documented findings of abuse, and a possible Brady violation based
on the State’s failure to disclose non-identifications of Muhammad after multiple lineups,
amounted to “sufficient credible evidence of torture meriting judicial review.”
¶ 17 In November 2018, Muhammad’s counsel moved to have the Office of the Special
Prosecutor (OSP) and Robert Milan (collectively, “[CITATION]”) appointed, given that the Cook
County State’s Attorney’s Office (SAO) had concluded its involvement would be inappropriate
as Detective McDermott worked for the State’s Attorney’s office as an investigator after he
retired from the Chicago Police Department. Milan was appointed as the special prosecutor for
the “Burge-related” cases in April 2017 and led the OSP after the previous special prosecutor
resigned. The presiding judge of the criminal division appointed Milan on November 20, 2018.
¶ 18 After his review, Milan concluded that the evidence against Muhammad was overwhelming
and the OSP would continue to defend the conviction. After that, on August 20, 2020, Milan
moved the circuit court to terminate the proceedings on the basis that Muhammad had not
articulated a claim of torture under the Act. Milan took the position that Muhammad’s statement
to Detective Fidyk did not amount to a “confession” as defined by Illinois law and required by
1-22-0372
the Act. Milan believed that the Commission did not have the authority to expand the scope of
its statutory mandate by adopting regulations defining a “confession” more broadly.
¶ 19 For the Brady violation, Milan argued that the Act specifically limits the Commission’s
authority to conduct inquiries into “claims of torture,” defined as “a claim on behalf of a living
person convicted of a felony in Illinois asserting that he was tortured into confessing to the
crime for which the person was convicted and the tortured confession was used to obtain the
conviction and for which there is some credible evidence related to allegations of torture.” 775
ILCS 40/5(1) (West 2018). Relatedly, Milan argued that the Commission expressly found that
Muhammad’s allegations of abuse were not credible but still referred the matter for judicial
review.
¶ 20 Shortly afterward, Muhammad filed a “Motion to Rescind” Milan’s appointment as the
special prosecutor, claiming: (i) Milan’s appointment was improper under the statute ([CITATION]); (ii) Milan suffered a disabling conflict of interest based on his service
as the First Assistant State’s Attorney and Supervisor of Felony Review for the Cook County
State’s Attorney’s Office; and (iii) even if no actual conflict of interest existed, Milan’s
appointment created an appearance of impropriety. Milan responded that his appointment
adhered to the statute under which he continued the ongoing work as the “Burge” special
prosecutor after his predecessor retired. Further, he did not suffer from a conflict of interest
based on his SAO service, where he was not personally involved in Muhammad’s case, and the
attempts to have him removed smacked of “gamesmanship” since Muhammad waited two years
to seek removal and did so after Milan filed the motion to terminate.
1-22-0372
¶ 21 After hearing arguments on the motions, the presiding judge of the criminal division denied
Muhammad’s motion to rescind, finding Muhammad’s motion untimely and Milan’s
appointment proper and consistent with the original order appointing a special prosecutor for
the entire class of Burge cases.
¶ 22 Muhammad filed a motion to reconsider. On January 21, 2021, a different presiding judge
struck that motion, stating she would not reconsider her predecessor’s decision. Muhammad
filed a motion for leave to file a petition for mandamus or prohibition or, in the alternative, a
motion for supervisory order challenging the ruling. On March 5, 2021, the Supreme Court
denied the motion. [CITATION].
¶ 23 Muhammad filed a “new” motion to rescind Milan’s appointment, again arguing that
Milan’s positions at the SAO created a disabling conflict of interest requiring his
[SEGMENT 12]
disqualification under the governing statute (55 ILCS 5/3-9008 (West 2018)) and asserting that
Milan could be a witness in the proceedings in Muhammad’s case based on a memorandum his
counsel had recently obtained. The memorandum, sent to Milan in 1999 by an Assistant State’s
Attorney in the felony review unit, regarded the alleged torture of a different defendant during
the felony review process. Milan argued that the memorandum was irrelevant as it addressed a
different murder committed by an unrelated offender and involved different detectives from a
different Chicago police headquarters. The presiding judge of the criminal division rejected
Muhammad’s arguments and denied the motion.
¶ 24 Muhammad filed a Motion for Supervisory Order to which Milan objected. The Supreme
Court denied Muhammad’s motion on September 9, 2021. [CITATION].
1-22-0372
¶ 25 On November 5, 2021, Muhammad, in his response to the motion to terminate, argued that
his alleged statement to Detective Fidyk constituted an inculpatory statement used by the
prosecution to establish his consciousness of guilt and fell within the Commission’s definition
of a confession. In addition, the court must give the Commission’s interpretation of the statute
the force and effect of law. Finally, Milan waived challenging the propriety of the
Commission’s referral for judicial review by waiting over two years to file the motion to
terminate, and the Commission could rely on the alleged Brady violations as corroboration of
his claims of abuse.
¶ 26 Milan replied that Muhammad’s statement to Detective Fidyk did not amount to a
confession under Illinois law. Milan also argued (i) the Commission exceeded its statutory
authority when it adopted an administrative rule defining a “claim of torture” broader than the
definition adopted by the legislature, (ii) the Commission improperly referred the matter for
judicial review where its formal disposition stated that Muhammad’s claims of abuse were not
credible; (iii) the Commission exceeded its authority by relying on an alleged Brady violation
unrelated to a torture claim as a basis for a referral for judicial review, which instead should be
brought in a postconviction petition, and (iv) the Commission’s referral does not conform to the
restrictions of the Act depriving the court of subject matter jurisdiction, a defect that cannot be
waived or forfeited.
¶ 27 The circuit court heard arguments on the State’s motion to terminate and took the matter
under advisement. On February 10, 2022, Muhammad sought leave to file an “amended” post-
conviction petition, adding (i) the torture claims as well as the alleged Brady violation identified
in the Commission’s referral, (ii) a claim of actual innocence based on the fact that his statement
1-22-0372
was obtained through coercion by detectives, (iii) prosecutorial misconduct at trial, and (iv)
ineffective assistance of his trial and appellate counsel.
¶ 28 On March 11, 2022, the circuit court granted Milan’s motion to terminate. The circuit court
held it “[is] not bound by the conclusions made by the Commission in making a referral” and
“does not review the actions of the Commission in making the referral to determine whether
they were appropriate.” The court explained that it would not dismiss the referral “based upon
the actions of the Commission in making the referral,” as Milan requested, because the judiciary
and the Commission have distinct roles and responsibilities. The court stated that “[t]he
Commission acts to determine whether there is enough evidence of torture to merit judicial
review. The Court makes the final determination of whether the provisions of the statute have
been met.”
¶ 29 Then the circuit court determined that Muhammad’s statement to Detective Fidyk did not
involve a “confession” within the meaning of the Act:
“[T]he issue for the Court [] to decide at an evidentiary hearing is whether the defendant
was tortured into confessing to the crime for which he was convicted, and the tortured
confession was used to convict.
As the full statement entered into evidence in this particular case at trial, it states as
follows: He said, meaning the defendant, he said he was a Vice Lord member, a member of
the Vice Lords street gang from around 79th and Dotson. He denied any knowledge of the
aggravated battery case report which he was the victim. He said he had no actual knowledge
of the murder and that he knew there was an arrest warrant for him regarding the case, and
he went to the State of Washington.
- 10 - 1-22-0372
That is characterized in the referral as a confession. [Muhammad’s counsel] has argued
in her motion that she believes that the detectives fabricated that statement, but that was
characterized by the Commission as the confession.
The problem is that the statement is not a confession based upon case law. There are a
number of cases throughout the years that have specifically defined ‘confession’ going back
to the case of [CITATION], N-i-t-t-i, from 1924. In that case, the Court stated that a
confession is a direct acknowledgment of guilt on the part of the accused, either by
statements of the details of the crime or an admission of the ultimate facts.
***
Clearly, the statement entered at trial was not a confession. Looking at the full statement,
it is an exculpatory -- it is exculpatory in nature.
[Muhammad] denies the murder and any knowledge of the facts prior to the murder. In
the statement, he also makes certain admissions. He was a Vice Lord, he knew about the
warrant issued for his arrest, and he went to the State of Washington to turn his life around.
Such admissions do not equal a confession.
As the Illinois Supreme Court held in [CITATION], J-e-o-r-g-e-v, 38 Ill. 2d
165, a 1967 case, a confession must acknowledge all the elements of the crime and is a
confession of guilt. In this case, the State argued in closing arguments at trial that his
statement and his flight to Washington should be -- should show consciousness of guilt. The
State argued it to counter the defendant’s alibi defense.
***
Neither the trial transcript nor the Appellate Court affirmance of the case makes
- 11 - 1-22-0372
reference to any confession being introduced at trial. Contrary to the Commission’s referral
of a tortured confession used to convict the defendant in this matter, there’s no confession
presented.”
¶ 30 The circuit court noted that the Commission “had serious concerns about [Muhammad’s]
credibility.” Regarding the alleged Brady violations, they should not be incorporated into
Muhammad’s torture claims because that would require an evidentiary hearing on the relevant
part of the Commission’s referral.
¶ 31 The circuit court terminated the proceedings on the Commission’s referral and granted
Muhammad leave to file his successive postconviction petition.
¶ 32 Analysis
¶ 33 We note that the Attorney General of the State of Illinois and the Solicitor General, on behalf
of the Commission, filed an amicus curiae brief in support of Muhammad. Their brief raises
essentially the same arguments as Muhammad, seeking to reverse the circuit court’s denial of
his claims under the Act.
¶ 34 The Act provides “an extraordinary procedure to investigate and determine factual claims
of torture related to allegations of torture [.]” 775 ILCS 40/10 (West 2020). An eight-member
Commission was established to effectuate this purpose. 775 ILCS 40/15 (West 2020). When
the Commission receives a claim of torture, it hears the evidence and votes on an appropriate
disposition. 775 ILCS 40/45 (West 2020). If at least five of the eight members conclude by a
preponderance of the evidence that there is sufficient evidence of torture, the Commission refers
the matter to the circuit court for further review. 775 ILCS 40/50 (West 2020).
¶ 35 On receipt, the circuit court proceeds to an evidentiary hearing unless it finds that the
- 12 - 1-22-0372
Commission’s “threshold determination was itself against the manifest weight of the evidence.”
[CITATION]. If the court proceeds with an evidentiary
hearing, the hearing is akin to a third-stage evidentiary hearing under the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)). [CITATION]. The circuit court may receive proof by affidavits, depositions, oral testimony, or
other evidence. 775 ILCS 40/50 (West 2020). Similar to post-conviction proceedings, the
Illinois Rules of Evidence do not apply so that defendants may present evidence they may not
have otherwise been able to present at trial. [CITATION].
¶ 36 When considering a Commission referral, the court must determine whether the outcome of
the original suppression hearing would likely have been different if the officers who denied
torturing the defendant had been subject to impeachment based on newly discovered evidence
that those officers engaged in a pattern of abusive tactics in other cases. [CITATION]. As for pattern and practice, the
circuit court is charged with looking at the similarity “between the misconduct at issue in the
[SEGMENT 13]
present case and the misconduct shown in other cases, such that it may fairly be said the officers
were acting in conformity with a pattern and practice of behavior.” [CITATION].
¶ 37 The Commission’s Definition of “Tortured Confession”
¶ 38 Muhammad argues that the circuit court erred by dismissing the Commission’s referral
- 13 - ```plaintext
1-22-0372
without an evidentiary hearing. Specifically, Muhammad claims that the court misstated its role
in judicial review in not giving proper deference to the Commission as an administrative body
or following the Commission’s regulatory definition of the term “tortured confession.” Milan
argues that the circuit court properly terminated the proceedings without an evidentiary hearing
because the undisputed facts demonstrated that Muhammad could not establish he was “tortured
into confessing to the crime” as the Act required (775 ILCS 40/5(1) (West 2020)), where
Muhammad’s statement to Detective Fidyk did not rise to the level of a “confession” under the
plain meaning of the word.
¶ 39 Under the Act, a “claim of torture” means an assertion on behalf of a person convicted in
Illinois that “he [or she] was tortured into confessing to the crime for which the person was
convicted and the tortured confession was used to obtain the conviction and for which there is
some credible evidence related to allegations of torture occurring.” (Emphasis added.) 775 ILCS
/5(1) (West 2020). Both parties acknowledge that the Act does not define “tortured
confession.”
¶ 40 Muhammad contends that in denying him an evidentiary hearing because his statement to
Detective Fidyk did not amount to a confession, the court failed to consider the definition of
“tortured confession” the Commission adopted or how it applied to the statement he made to
Detective Fidyk. 20 Ill. Adm. Code. § 2000.10. The Commission defined a “tortured
confession” as “any incriminating statement * * * that the convicted person alleges [was] the
result of [an] interrogation that the convicted person claims included torture.” 20 Ill. Adm.
Code. § 2000.10; see [CITATION] (administrative rules have
“force and effect of law and are to be construed according to the same standards that govern the
- 14 -
``` 1-22-0372
construction of statutes”).
¶ 41 Milan responds that the court’s definition of confession adopted the meaning of
“confession” found repeatedly in Illinois caselaw. Milan further argues that the Commission’s
definition of “tortured confession,” which includes “incriminating statements,” exceeds the
power granted the Commission because the meaning of “confession” as used in the Act is
unambiguous.
¶ 42 Standard of Review
¶ 43 When reviewing a circuit court’s decision on a Commission referral, we employ a different
standard of review for issues of law and fact. [CITATION], ¶ 195.
We defer to the circuit court’s findings of fact unless they are against the manifest weight of the
evidence, which occurs only where the opposite conclusion is “clearly evident, plain, and
indisputable.” [CITATION], ¶ 195. The circuit court did not make factual
findings since it terminated the proceedings before receiving evidence. We review legal
conclusions de novo; that is, we owe no deference to the circuit court and perform the same
analysis as the trial judge. Id.
¶ 44 Statutory Construction
¶ 45 The fundamental principle of statutory construction involves determining and giving effect
to the legislature’s intent. [CITATION], ¶ 30. The statutory language
provides the best indication of legislative intent. [CITATION], ¶ 30. “When the
meaning of a statute is not clearly expressed in the statutory language, a court may look beyond
the language [used] and consider the purpose behind the law and the evils the law was designed
to remedy. When the language of an enactment is clear, it will be given effect without resort to
- 15 - 1-22-0372
other interpretative aids.” (Internal citations omitted.). [CITATION]
¶ 46 Illinois law has long provided that an administrative agency is a “creature of statute” with
“no general or common law powers.” [CITATION] Instead, an “agency is limited
to those powers granted to it by the legislature in its enabling statute.” [CITATION] An administrative agency
administrates and enforces the statute; courts give deference to the agency’s interpretation of
statutory ambiguities. [CITATION] Thus, “ ‘[a] court
will not substitute its own construction of a statutory provision for a reasonable interpretation
adopted by the agency charged with the statute’s administration.’ ” [CITATION]
But, reviewing courts are not bound by
agency interpretation that conflicts with the statute or is unreasonable or otherwise erroneous.
Id.
¶ 47 The Act and the Commission’s Interpretation
¶ 48 The Act defines a “claim of torture” as “a claim on behalf of a living person convicted of a
felony in Illinois asserting that he was tortured into confessing to a crime for which the person
was convicted and the tortured confession was used to obtain the conviction and for which there
is some credible evidence related to the allegations of torture.” (Emphasis added.) 775 ILCS
/5(1) (West 2020). As a result of the rule-making authority granted by the General Assembly
- 16 - 1-22-0372
(Hadley, [CITATION]), the Commission implemented its own definition of “torture” and
“tortured confession.”
¶ 49 The Commission defined “torture” as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for the purpose of obtaining from that
person a confession to a crime.” 20 Ill. Adm. Code. § 2000.10. It defined “tortured confession”
as “any incriminating statement, vocalization or gesture alleged by police or prosecutors to have
been made by a convicted person that the convicted person alleges [was] a result of (or, if the
convicted person denies making the statements, occurred shortly after) [an] interrogation that
the convicted person claims included torture.” 20 Ill. Adm. Code. § 2000.10. The Commission’s
definition of “tortured confession” goes beyond a confession as Illinois reviewing courts have
historically understood the term and expressly encompasses a statement short of a confession.
¶ 50 We defer to an agency’s interpretation when the statute is ambiguous. [CITATION]. Commonly, a “confession” is “a statement of
guilt or obligation in a matter pertaining to oneself.” Webster’s Third New International
Dictionary 475 (2000). See [CITATION] (courts may consult dictionaries for plain and ordinary meaning of undefined words or phrases)
¶ 51 As Milan points out, our courts have defined “confession” repeatedly over the past 100
years. [CITATION] (“a direct acknowledgment of guilt on the part of
the accused, either by a statement of the details of the crime or an admission of the ultimate
fact.”); [CITATION] (“A confession is an acknowledgement
of guilt, and not of any particular fact connected with the case.”); [CITATION] (“a voluntary declaration by a person charged with crime of his agency or
- 17 - 1-22-0372
participation in the crime, and not merely a declaration or admission of facts criminating in their
nature or tending to show guilt.”); [CITATION] (“a
comprehensive admission of guilt or of facts which necessarily and directly imply guilt.”);
[CITATION] (confession must acknowledge all elements of
crime and is confession of guilt).
¶ 52 Nevertheless, we must consider the context in which “confession” is used in the Act.
Muhammad and the Commission argue that the law has “evolved” and “confession,” as used in
“tortured confession,” encompasses all incriminating statements. In support, they cite section
/114-11 of the Code of Criminal Procedure, which has been recognized as the proper pretrial
mechanism for challenging the admissibility of all statements by a defendant, regardless of
whether they correspond to a “confession.” 725 ILCS 5/114-11 (West 2020). Section 5/114-11
provides that “[p]rior to the trial of any criminal case a defendant may move to suppress as
evidence any confession given by him on the ground that it was not voluntary,” and employs
“confession” repeatedly in the statute. Id. (emphasis added.).
¶ 53 Our supreme court has held that under section 114-11, “the word ‘confession’ must be read
to include both inculpatory and exculpatory statements,” thereby embracing the then-new
constitutional standards in Miranda v. Arizona, 384 U.S. 436 (1966). [CITATION].
¶ 54 Due to these multiple interpretations of “confession,” Muhammad contends that its meaning
[SEGMENT 14]
is at least ambiguous.
¶ 55 Milan acknowledges [CITATION] expanded the definition of “confession” under section 114-11
but suggests that no constitutional mandate exists to construe the Act beyond its plain and
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unambiguous language. Milan points to [CITATION] and [CITATION] , which were decided on the same day as Costa.
¶ 56 In [CITATION], the defendant claimed his statements should not have been admitted into
evidence because the State failed to provide him the writing of the oral statements he made and,
whether his oral statements were reduced to a writing or not, the State had to give him the names
and addresses of persons present when he made the statements. [CITATION] (citing
Ill.Rev.Stat.1963, chap. 38, par. 729) As to the meaning of “confession” under Paragraph 729
of the Criminal Code (Ill.Rev.Stat.1963, chap. 38, par. 729 since repealed), the court explained,
“Confessions must be distinguished from admissions against interest. Jones on Evidence,
th Ed., sec. 398 states: ‘* * * As the terminology is used in criminal law, a ‘confession’
must be distinguished from an ‘admission’ of lesser import * * *. A confession out of court
or an extrajudicial confession is comprehensive in its scope, * * * in that it acknowledges
all of the elements of the crime and, therefore, is a confession of guilt * * *. A verbal (that
is, expressed in words, oral or written) admission in criminal law, as generally understood,
is different from a confession in that it is not an acknowledgment of guilt but is a statement
having evidentiary value in proof of an element of the offense charged.” Id. at 175.
¶ 57 The court found that the “statements of the defendant here were admissions against interest
and not confessions” and, given the spontaneity of the statement and circumstances under which
the statement was made, “there [was] nothing to suggest that the admission by the defendant
was not a spontaneous and voluntary one and nothing to suggest that [the sheriff] devised any
stratagem to induce it.” Id. at 176. So, the trial court did not err. Id.
¶ 58 In [CITATION], the defendant father’s infant daughter died with a skull fracture, extensive brain
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injury, and rib injuries. [CITATION]. The defendant admitted to shaking and
squeezing his daughter to get her to stop crying, and he could have broken her ribs in the process.
Defendant was convicted of involuntary manslaughter. Id. at 222. The main issue on appeal was
whether the defendant’s statements that he “squeezed her” and “wanted her to stop crying”
amounted to admissions for which the voluntariness needed to be determined. Id. at 220-21.
Our supreme court acknowledged that “the statements of the defendant were not in the strict
sense of the word confessions to the crime of murder, [but] it is apparent that they were not
entirely exculpatory and that his admissions that he squeezed the child to keep her from crying
were incriminating.” The court found consistent with its holding in [CITATION], the “voluntary character of any out-of-court statement must first be established
before the statement may be used, even for impeachment purposes.”
¶ 59 The court further found that “[o]ur adoption of this rule finds support in the decision of the
U.S. Supreme Court in [CITATION]” and “that the rule enunciated in these recent
decisions of our court and the U.S. Supreme Court, is the proper one and we adhere to it in this
case.” The court reversed and remanded for a new trial because the trial court erred by not
holding a preliminary hearing to determine the voluntariness of the defendant’s admissions. Id.
at 221. The court noted that, as stated in “[CITATION], the distinction between confessions and
admissions is preserved by section 114-10 of the Code of Criminal Procedure in connection
with the furnishing of a list of witnesses to oral statements.” (Citations omitted.) Id.
¶ 60 Milan urges that [CITATION], and [CITATION] read together stand for the proposition that a
“confession” is an acknowledgment of guilt and applies to all instances other than the limited
circumstances of permitting a pretrial hearing on a motion to suppress a confession under
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section 5/114-11. 725 ILCS 5/114-11 (West 2020). Milan contends that since Costa, Georgv,
and Lefler, our supreme court has used this definition of “confession” when addressing jury
instruction issues. See [CITATION] (giving jury instruction
on confession error when defendant’s statement, while incriminating, not inconsistent with his
contention that victim’s death was accidental and not “confession”); [CITATION] (error “to instruct a jury that defendant has confessed to a crime when he
has made only an admission”).
¶ 61 Three flaws thwart Milan’s argument. First, in this case, the phrase is “tortured confession,”
not “confession.” Milan’s plucking of “confession” from the phrase “tortured confession”
divorces it from the context in which the Act uses the term. Second, although the terms
“confession” and “admission” had different definitions in the context of jury instructions in the
first edition of the pattern jury instructions (Illinois Pattern Jury Instructions, IPI Criminal, Nos.
.07 and 3.06 (1st ed. 1961)), that is no longer true. In the past, the two separate jury instructions
required the parties to litigate whether a statement was a “strict confession of guilt or merely an
admission of an incriminating fact.” [CITATION].
Regardless, the second edition of the pattern jury instructions, IPI Criminal Nos. 3.06 and 3.07
were consolidated into one instruction and employed the general term “statement” in place of
the more specific terms “confession” and “admission.” Illinois Pattern Jury Instructions,
Criminal, No. 3.06-3.07 (2d ed. 1981). These changes “avoided the complications that ensue
when a judge characterizes a statement,” eliminating this unnecessary risk of prejudice to the
defendant. IPI Criminal 2d No. 3.06-3.07, Committee Note; [CITATION].
¶ 126. This court has held that the current version of IPI Criminal 4th No. 3.06-3.07, which also
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uses “statement” applies “to a defendant’s self-incriminating statements-confessions,
admissions, or false exculpatory statements-relating to the charged offense(s).” [CITATION], ¶ 133.
¶ 62 Third, and most significantly, we are tasked with considering Muhammad’s torture claim
through the lens of whether the outcome of the suppression hearing would likely have been
different given the new pattern and practice evidence. [CITATION], ¶ 154. As Milan acknowledges, a “confession” is an acknowledgment of guilt and
applies to all instances other than the limited circumstances of permitting a pretrial hearing on
a motion to suppress a confession under section 5/114-11. 725 ILCS 5/114-11 (West 2020). As
the Act requires us to consider whether the result of a suppression hearing would have been
different, it necessarily follows that this is also a limited circumstance where the definition of
“confession” as an acknowledgment of guilt would be inapplicable.
¶ 63 This court has allowed the circuit court to simultaneously consider a petitioner’s claim under
the Act and request to suppress his or her statement under section 5/114-11. [CITATION], ¶ 139 (trial court’s inquiry at
suppression hearing significantly overlaps with inquiry at evidentiary hearing on police torture).
Thus, the circuit court can consider whether Muhammad’s statement to Detective Fidyk should
be suppressed at an evidentiary hearing on his torture claim. Given that possibility, the Act
cannot be limited to a confession as an acknowledgment of guilt.
¶ 64 Our analysis of when “confession” means “confession” and when it means something more
leads us to conclude that “confession” is ambiguous because reasonably well-informed persons
reading the Act could understand “confession” in more than one sense. [CITATION]
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Ill. 2d 282, 288 (1994) (statute ambiguous if reasonably well-informed persons can understand
it in two or more ways). Despite that, we do not impose our own construction on the statute as
would be necessary without an administrative interpretation. [CITATION]. Instead, we must determine whether
the agency’s interpretation relies on a permissible construction of the statute. “A court will not
[SEGMENT 15]
substitute its own construction of a statutory provision for a reasonable interpretation adopted
by the agency charged with the statute’s administration.” [CITATION].
¶ 65 We are not bound by the Commission’s interpretation of “tortured confession” irrespective
of its reasonableness. [CITATION]. Yet, if the Commission’s interpretation is permissible, that we might have
interpreted the statute differently does not justify reversal. [CITATION]. We find the Commission’s interpretation of “tortured confession” as
reasonable based on both our discussion of recent Illinois court interpretations of “confession”
and the legislature’s intent as explained by the Act’s stated purpose: “an extraordinary
procedure to investigate and determine factual claims of torture related to allegations of torture.”
ILCS 40/10 (West 2020). Any suggestion that certain kinds of statements are not within the
province of the Commission’s investigatory authority is notably absent from this express
purpose. Moreover, we recognize that a torturer not only seeks to obtain confessions but
statements that can be used against a suspect. Based on the Act’s stated purpose, it would be
nonsensical for the Commission to consider only a tortured confession that acknowledges guilt
and nothing less. Our interpretation respects the Act’s purpose and spirit.
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¶ 66 Further support comes from legislation that made it a felony to “compel a confession or
information by force or threat.” 720 ILCS 5/12-7 (West 2020). Adopted well before the
Commission was established, this offense forbids a person with the intent to “obtain a
confession, statement or information regarding any offense” to knowingly threaten or inflict
“bodily harm upon the person threatened or upon any other person.” 720 ILCS 5/12-7 (West
). Although separate from the Act, when considered in conjunction with the Act, this
statutory offense shows an overall movement to rectify convictions based on prior statements
made on account of torture and prevent future statements from being obtained as a result of
force or threat of force. It would be odd that a police officer can be prosecuted for obtaining
“information” by force from a suspect, but a convict could not obtain relief under the Act for a
statement obtained by torture. We see no definitive indication that the legislature intended to
distinguish between “confessions” obtained by torture, which acknowledge guilt, and other
statements containing admissions or incriminating information.
¶ 67 Accordingly, we find that Muhammad’s statement to Detective Fidyk qualifies as a
“tortured confession” under the Commission’s interpretation of the Act. We reverse and remand
for the circuit court to conduct an evidentiary hearing to determine the merits of Muhammad’s
claim that he was tortured into giving the statement. We make no findings on the issue.
¶ 68 Muhammad’s Claimed Brady Violation
¶ 69 Muhammad next argues that the circuit court erred by failing to consider the Commission’s
finding of a possible Brady violation under which the State must disclose to the defense all
evidence favorable to defendant and material to either guilt or punishment. [CITATION].
Milan argues that a potential Brady violation is irrelevant to Muhammad’s
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claim of torture under the Act. The Commission found otherwise. We address this issue because
it is likely to recur on remand.
¶ 70 As discussed, the circuit court terminated the proceedings after determining that
Muhammad’s statement to Detective Fidyk was not a “confession,” as the Act uses that term.
Concerning the Brady violation, the circuit court found,
“In essence, the Commission is making an alleged Brady violation part of the claim of
torture to shore up the credibility of a person the Commission had grave reservations
regarding his claim of coercion made approximately 14 years after he was convicted.
Incorporating the Brady claim into the claim of torture--into the claim of the torture
analysis would require an evidentiary hearing on the part of the referral without the
appropriate opportunity for separate consideration as would be appropriate under the
Post-Conviction Act or post-judgment proceeding under 2-1401.”
So, the court heard no evidence regarding Muhammad’s claim of torture or the potential Brady
violation.
¶ 71 The Commission, in determining whether sufficient evidence of torture exists to refer a
claim for judicial review, may “use any measure provided in the Code of Civil Procedure and
the Code of Criminal Procedure of 1963 to obtain information necessary to its inquiry.” 775
ILCS 40/40(d) (West 2020). And the Commission may “issue subpoenas or other process to
compel the attendance of witnesses and the production of evidence, administer oaths, petition
the Circuit Court of Cook County or of the original jurisdiction for enforcement of process or
for other relief.” 775 ILCS 40/40(d) (West 2020). If, as the result of the Commission’s
investigation, it discovers “[e]vidence of criminal acts, professional misconduct, or other
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wrongdoing disclosed through formal inquiry or Commission proceedings,” that information
“shall be referred to the appropriate authority” as well as to the convicted person or his counsel
if the evidence is favorable. 775 ILCS 40/45(d) (2020).
¶ 72 Again, the Act establishes “an extraordinary procedure to investigate and determine factual
claims of torture related to allegations of torture.” 775 ILCS 40/10 (West 2020). To reiterate, a
“claim of torture” is defined as an assertion that a person “was tortured into confessing to the
crime for which the person was convicted and the tortured confession was used to obtain the
conviction and for which there is some credible evidence related to allegations of torture.” 775
ILCS 40/5(1) (West 2020).
¶ 73 In line with the Act’s purpose, when evaluating a Commission referral, the circuit court asks
whether the outcome of the original suppression hearing would likely have been different if the
officers who denied torturing the defendant had been subject to impeachment based on newly
discovered evidence that those officers engaged in a pattern of abusive tactics in other cases.
[CITATION], ¶ ¶92, 95-96. In creating the Act, “the legislature clearly did
not create a new form of postconviction relief.” [CITATION], ¶ 52.
Ultimately, the trial court determines the merits of a torture claim.
¶ 74 The “possible” Brady violation the Commission uncovered related to the State’s failure to
disclose that Muhammad participated in several lineups in which multiple witnesses did not
identify him. We find this issue relevant to Muhammad’s claim of torture. As the Commission
and circuit court observed, Muhammad did not bring his claim of torture until 14 years after
Detective Fidyk interrogated him. In his motion to terminate the proceedings before the circuit
court, Milan argued Muhammad’s delay made it less credible; thus, we can safely assume that
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the State will make the same argument. But, Muhammad claims that he repeatedly told his
attorney before trial that the police coerced the statement from him, yet his attorney did not
raise the issue with the trial court. The Commission determined this was plausible, stating
“[t]hat valid lineup issues were not discovered and litigated by Muhammad’s attorney before
trial makes it at least possible that Muhammad informed [his] attorney about any coercive
interrogation tactics that were also not explored by trial.” Thus, the Commission concluded that
there was enough evidence to merit the referral of Muhammad’s torture claim for an evidentiary
hearing.
¶ 75 We cannot say that the Commission’s finding is against the manifest weight of the evidence.
See, [CITATION], ¶ 76 (on receipt of referral, circuit court should proceed
to evidentiary hearing unless court finds Commission’s “threshold determination was itself
against the manifest weight of the evidence”). Indeed, the Commission’s factual findings do not
bind the circuit court in determining the merits of a torture claim.
¶ 76 This court has held that proceedings under the Act and the Post-Conviction Hearing Act are
intended to work together, not against each other. [CITATION], ¶ 137. A
permissible and prudent pleading procedure would be to file a joint petition under both the
Commission referral and the post-conviction statute for a combined evidentiary hearing, as the
Commission referral is a type of “postconviction hearing” within the meaning of Illinois Rule
of Evidence 1101(b)(3).
¶ 77 Because the alleged Brady violation is closely tethered to the merits of Muhammad’s torture
claim, we reject Milan’s contention that the potential Brady violation is irrelevant to
Muhammad’s torture claim and could not be raised under the Act.
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====== End of Part ====== 1-22-0372
¶ 78 Conflict Issues
¶ 79 The law is explicit: To ensure a prosecutor’s impartial judgment, a prosecutor with an actual
conflict of interest must be removed. The conflict, without more, creates the perception that
bias, favoritism, or personal interests may influence the prosecutor, thereby compromising the
integrity and fairness of the proceedings.
¶ 80 Milan contends no actual conflict of interest bars his review of Muhammad’s case, ignoring
[SEGMENT 16]
that as Supervisor of the Felony Review Unit in the Cook County’s State’s Attorney’s Office,
he initiated the criminal prosecution of Muhammad years ago. Milan also ignores that at his
appointment in this case, he stood mute, failing to disclose his relationship with Detective
McDermott and violating due process and the rules of professional conduct. His actual conflict
calls for the appointment of a new special prosecutor.
¶ 81 Where, as here, no factual dispute exists, we review de novo the legal issue of whether an
attorney operates under a conflict of interest. [CITATION]
¶ 82 Actual Conflict of Interest
¶ 83 Muhammad contends Milan has a personal interest because he was “the direct supervisor
for the felony review unit and the felony trial attorneys at the time Muhammad was tortured and
tried.” Muhammad contends Milan’s personal involvement undermines the proceedings “in
ways known, unknown, and perhaps even unknowable,” “cast[ing] doubt on the procedures in
place to ensure due process under the law.”
¶ 84 Milan replies that Muhammad invited this error by asking for Milan’s appointment. The
record shows Muhammad moved to appoint Milan, who had already served as the special
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prosecutor in other cases at the time the SAO determined it could not participate.
¶ 85 Generally, parties cannot complain of errors they induced the court to make and to which
they consented. [CITATION]. But that general rule does
not apply when an “interested party” acts as a prosecutor given that the resulting error is
“fundamental and pervasive,” raising doubts that “undermine confidence in the integrity of the
criminal proceeding” and “ ‘call[ing] into question the objectivity of those charged with
bringing a defendant to judgment.’ ” [CITATION].
Because this error casts doubt on the integrity of the process, we have a duty to act. [CITATION] (noting “the responsibility of a reviewing court for a just result
and for the maintenance of a sound and uniform body of precedent may sometimes override the
considerations of waiver that stem from the adversary character of our system”); see [CITATION] (even in absence of prejudice to defendant, special
prosecutor may be necessary to remove appearance of unfair prosecution under plain error
principles protecting integrity of proceedings).
¶ 86 Milan next contends the circuit court appointed him as special prosecutor and, as a result,
could only remove him for an “actual conflict of interest,” which he claims he does not have.
Milan adds that an appearance of impropriety alone would not justify removal under the statute.
¶ 87 Section 5/3-9008(a-10) governs the appointment of a special prosecutor and outlines the
procedures:
“The court on its own motion, or an interested person in a cause or proceeding, civil or
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criminal, may file a petition alleging that the State’s Attorney has an actual conflict of
interest in the cause or proceeding. The court shall consider the petition, any documents
filed in response, and if necessary, grant a hearing to determine whether the State’s Attorney
has an actual conflict of interest in the cause or proceeding. If the court finds that the
petitioner has proven by sufficient facts and evidence that the State’s Attorney has an actual
conflict of interest in a specific case, the court may appoint some competent attorney to
prosecute or defend the cause or proceeding.” 55 ILCS 5/3-9008(a-10) (West 2020).
¶ 88 Before this statute’s amendment in 2016, courts held the mere appearance of impropriety
warranted the removal of a prosecutor. See, e.g., [CITATION] (citing pre-amended version). But the amendment added the language “actual
conflict of interest.” 55 ILCS 5/3-9008(a-10) (West 2020). Thus, one court has held that the
party seeking a special prosecutor must demonstrate an actual conflict of interest, not just the
appearance of impropriety. [CITATION], ¶ 33-39. Another court has held that the appearance of impropriety remains enough under the
statute’s current version to warrant removal. See [CITATION], ¶ 39 (citing 2018 version of section 5/3-9008 and finding appearance of impropriety as form
of actual conflict of interest). We need not enter this debate: Milan has an actual conflict of
interest.
¶ 89 Before explaining why, we note that the statute does not define “actual conflict of interest.”
Absent a statutory definition, this court has found that a State’s Attorney has “an actual conflict
of interest” if he or she “is interested in” the case as either (i) a private individual, or (ii) an
actual party to the action. [CITATION]
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IL App (2d) 190845, ¶ 17. This statute “prevent[s] any influence upon the discharge of
the duties of the State’s Attorney by reason of personal interest.” [CITATION]
¶ 90 The defendant must have more than speculation or suspicion. [CITATION] (motion to appoint special prosecutor denied where no pleaded facts showed improbability
state’s attorney would conduct biased investigation and prosecution). Consistent with this
decision, we have found an actual conflict of interest where a newly appointed state’s attorney
acted as defense counsel for the defendant. [CITATION]
¶ 91 We have found no Illinois decision where a party sought to remove a special prosecutor for
an actual conflict of interest. But the parties do not dispute that section 5/3-9008 controls. And
we agree. Section 5/3-9008, as our courts interpret it, applies to removing a special prosecutor.
See [CITATION] (section
/3-9008 also states grounds for disqualifying special state’s attorney under pre-amended
version). Indeed, as we will show, deciding this issue takes no novel insight. Instead, we employ
“a longstanding interpretive principle: When a statutory term is ‘ ‘obviously transplanted from
another legal source,’ ’ it ‘ ‘brings the old soil with it.’ ’ ” [CITATION] (quoting, [CITATION], quoting
Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)).
¶ 92 Finding an “actual conflict of interest” requires us sifting caselaw to clarify the role of the
prosecutor. “Prosecutors ‘have available a terrible array of coercive methods to obtain
information,’ such as ‘police investigation and interrogation, warrants, informers and agents
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whose activities are immunized, authorized wiretapping, civil investigatory demands, [and]
enhanced subpoena power.’ ” Young, [CITATION], (quoting, C. Wolfram, Modern Legal
Ethics 460 (1986)). Milan, when with the SAO, was one of its most senior members with these
powers.
¶ 93 Of critical significance is United States Supreme Court’s and the Illinois Supreme Court’s
shared understanding of the prosecutor’s role. “No attorney is more integral to the accusatory
process than a prosecutor who participates in a major adversary decision.” [CITATION] And of the many decisions a prosecutor makes, the first
among equals is the prosecutorial choice to bring charges. “It is the functional comparability of
[prosecutor’s] judgments to those of the judge that has resulted in * * * prosecutors being
referred to as quasi-judicial officers[.]” (Internal quotation omitted.) [CITATION]; see [CITATION]
(describing prosecutor as “quasi-judicial officer”). Accordingly, “[i]t is as much [the
prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.” [CITATION]
¶ 94 The undisputed facts show Milan exercised a quasi-judicial power as supervisor of the
Felony Review Unit in the Cook County’s State’s Attorney’s Office that charged Muhammad
with first-degree murder. The nature of these proceedings shows Milan seeking to exercise that
power again, holding over Muhammad the powers to dismiss the case, re-prosecute him, and
terminate the proceedings. See 775 ILCS 40/50 (a),(b) (successful petitions may lead to “re-
arraignment, retrial, custody, pretrial release, or discharge” and directing state’s attorney or
- 32 - ```plaintext
1-22-0372
designee to represent state). The exercise of these powers dictates that Milan judge the validity
of his original decision to prosecute. Thus, Milan possesses the improper ability to “judge”
himself and his subordinates.
¶ 95 “The due process guarantee that ‘no man can be a judge in his own case’ would have little
substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution
in which he or she had made a critical decision.” [CITATION]. In [CITATION], due
[SEGMENT 17]
process barred a sitting justice from ruling on a collateral appeal by the same defendant when
decades earlier, as a prosecutor, the judge had authorized seeking of the death penalty. [CITATION].
“The involvement of multiple actors and the passage of time [did] not relieve the former
prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in
determining the consequences that his or her own earlier, critical decision may have set in
motion.” [CITATION].
¶ 96 Similarly, First Assistant State’s Attorney Milan’s exercise of the quasi-judicial power in
Muhammad’s underlying case precludes him from exercising, or seeking to exercise, the power
of a special prosecutor. Due process does not tolerate the “risk of actual bias” that Milan
presents. [CITATION]. Failing to replace Milan as special prosecutor would undermine the integrity
of the court.
¶ 97 In reaching this conclusion, we reject as baseless the dissent’s claim that Muhammad “[a]t
no point” argued Milan’s appointment violated his due process rights. Infra ¶ 133. The due
process clause forms the cornerstone of his challenge, as Muhammad contended Milan’s
personal involvement in the prosecution undermined the integrity of these proceedings “in ways
known, unknown, and perhaps even unknowable” and thus “cast[ed] doubt on the procedures
``` 1-22-0372
in place to ensure due process under the law.” See [CITATION], 579 U.S. at 13 (noting, statutes and
professional codes of conduct provide more protection than due process requires). Illinois law
on conflicts of interest marks the ethical ceiling; the due process clause sets the legal floor.
¶ 98 Decades of torture by Chicago police took place before the courts and legislature acted. See
Kim D. Chanbonpin, Truth Stories: Credibility Determinations at the Illinois Torture Inquiry
and Relief Commission, 45 Loy. U. Chi. L. J. 1085, 1091-106 (2014) (canvassing this history
and concluding “the crisis of police torture is more far-reaching than the ‘bad apples’ myth
suggests”). That formal recognition culminated with the enactment of the Illinois Torture
Inquiry and Relief Commission Act. 775 ILCS 40/1 (eff. Aug. 10, 2009); see State of Illinois
Torture Inquiry and Relief Commission,
https://www2.illinois.gov/sites/tirc/Pages/default.aspx; [CITATION], 2020 IL
App (1st) 190299, ¶ 44 (“[i]nformation on websites and in public records are sufficiently
reliable such that judicial notice may be taken” and collecting examples).
¶ 99 The Act created “an extraordinary procedure to investigate and determine factual claims of
torture related to allegations of torture[.]” 775 ILCS 40/10 (West 2010).
¶ 100 But Milan seeks to halt any inquiry, as the head of the office directing the response to
Muhammad’s allegations, even though all the reasons the SAO withdrew apply in every respect
to Milan. The dissent would let Milan remain, even though the undisputed facts show that Milan
directly supervised the felony review unit and felony trial attorneys when the State arrested,
interrogated, charged, and tried Muhammad. Infra ¶ 175. By fiat, the dissent asserts Milan’s
direct participation in Muhammad’s prior prosecution constitutes neither “actual facts” nor
“actual evidence.” Infra ¶ 150. The dissent appears to require that Milan have personally
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secreted the key to the interrogation room in which Muhammad alleges he remained for four
days straight, thus forcing him to urinate and defecate on the floor. At the same time, the dissent
acknowledges that prosecutors generally “are not disinterested parties to criminal
prosecutions.” Infra ¶ 162.
¶ 101 The central conflict within the dissent, recognizing the significance of Muhammad’s claims
but downplaying the significance of Milan’s involvement, cannot hold. Nor should it. As
Muhammad rightly insists, when an “interested party” acts as a prosecutor, the resulting error
is “fundamental and pervasive.” (quoting [CITATION]). The
undisputed facts of Milan’s prior involvement trigger this court’s duty to remove him. [CITATION]; see [CITATION]. No court should ever tolerate the “risk of actual
bias” that Milan’s personal participation now threatens, or else the scales of justice tip
perilously, breeding resentment and distrust in the criminal system as a whole. See [CITATION].
¶ 102 The dissent’s insistence that Muhammad offer something more as proof than undisputed
evidence underscores the absurdity of Milan’s participation. The dissent insists that Milan was
no judge in his own case. Infra ¶¶ 161-163. But it is no answer to the charge that Milan acts as
a judge in his own case to say he may proceed as he wishes, acting both as advocate and witness.
See [CITATION] (describing “advocate-witness rule,” which bars
attorneys from playing dual roles as advocate and witness in same proceeding). Milan’s dual
participation is inconsistent with the search for truth and guts the reliability of the circuit court’s
“ultimate decision,” as the dissent describes it (Infra ¶ 165).
¶ 103 Finally, Milan argues that in 2017, before accepting his appointment, he obtained an ethics
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opinion from a former senior counsel to the Administrator at the Illinois Attorney Registration
and Disciplinary Commission. According to the opinion that he personally sought from a private
attorney, Milan did not have a conflict of interest in serving as special prosecutor “in the Burge
cases” even though “some of the cases may have been in the State’s Attorney’s system while
you [Milan] were First Assistant or Chief Deputy.”
¶ 104 But this case cannot be classified as a “Burge case” since Burge was suspended in 1991 and
terminated in 1993, years before Muhammad’s case arose. Rather, this case involves allegations
against Detective McDermott, who, after he retired from the police department, became an
investigator for the SAO. Many TIRC decisions, including this one, concern alleged torture by
McDermott. https://tirc.aem-
int.illinois.gov/search.html?q=mcDermott&contentType=everything; see [CITATION], ¶ 44 (noting “[i]nformation on websites and in public records are sufficiently
reliable such that judicial notice may be taken” and collecting examples).
¶ 105 Indeed, the opinion focuses on Rule 1.11(a) of the Illinois Rules of Professional Conduct.
That rule addresses “successive government and private employment,” which is not at all
relevant here. When Milan became special prosecutor, he represented the same governmental
client he did before, not a different client as contemplated by Rule 1.11(a).
¶ 106 Tellingly, the conflict Muhammad alleges does not fit squarely within the type of conflicts
recognized in the rules. But, the concepts expressed in Rule 1.7(a)(2) support rescinding Milan’s
appointment, as Muhammad’s expert witness explained in an affidavit to the circuit court.
¶ 107 Rule 1.7 prohibits a lawyer from representing a client in a matter that “involves a concurrent
conflict of interest.” Ill. R. Prof’l Conduct R. 1.7(a) (eff. Jan. 1, 2010). Subparagraph (a)(2),
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states that concurrent conflict exists where “there is a significant risk that the representation of
one or more clients will be materially limited *** by a personal interest of the lawyer.” [CITATION]. Disqualification under the “material limitation
conflict” provision of Rule 1.7(a)(2) requires a showing that “there is a significant risk that a
lawyer’s ability to consider, recommend or carry out an appropriate course of action for the
client will be materially limited as a result of the lawyer’s other responsibilities or interests.”
[CITATION]. Moreover, “[t]he lawyer’s own
interests should not be permitted to have an adverse effect on representation of a client. For
example, if the probity of a lawyer’s own conduct in a transaction is in serious question, it may
be difficult or impossible for the lawyer to give a client detached advice.” [CITATION].
¶ 108 Milan’s representation of the State as a special prosecutor is materially limited by his
personal interests. Milan supervised felony review attorneys and trial attorneys when
Muhammad was arrested, interrogated, charged, and tried. He was involved in interrogating
felony suspects at that time and received at least one detailed report about the apparent police
torture of a detained suspect in the felony review process. The Commission found sufficient
factual support for Muhammad’s claims that he was tortured in police custody during the felony
review process to warrant judicial examination. The Commission also found evidence that the
police and SAO committed significant Brady violations—multiple witnesses at lineups were
unable to identify Muhammad, and these were covered up and never disclosed.
¶ 109 Regardless of whether Milan was personally involved in interrogating suspects or knew that
[SEGMENT 18]
police officers obtained tortured confessions, he has a personal interest that constitutes a
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====== End of Court Ruling ====== 1-22-0372
conflict. Milan spent nearly 20 years at the SAO, eventually becoming First Assistant.
Allegations of misconduct by SAO, particularly during his tenure as First Assistant, pose risks
to SAO and Milan’s reputation. Bruce A. Green & Rebecca Roiphe, Rethinking Prosecutors’
Conflicts of Interest, 58 B.C. L. Rev. 463, 481 (2017) (prosecutors’ personal interest in their
public image undermines their ability to view evidence objectively and dropping charges may
be viewed as public concession that prosecutor previously made mistake).
¶ 110 Moreover, under the Rules of Professional Conduct, Milan had an ethical duty to supervise
the attorneys under his watch. See Ill. R. Prof’l Conduct Rule 5.1(b) (eff. Jan. 1, 2010) (“lawyer
having direct supervisory authority over another lawyer shall make reasonable efforts to ensure
that the other lawyer’s conduct conforms to these Rules”). Milan is subject to discipline for
failing to make reasonable efforts to ensure those attorneys act ethically. Milan had a personal
interest in avoiding an evidentiary hearing at which the evidence might have exposed that he
violated rules of professional conduct.
¶ 111 Muhammad has the burden of proving the misconduct he alleges that the police as well as
the SAO attorneys engaged in under Milan’s supervision, which could include violations of
Illinois Rule of Professional Conduct 4.1(a) (eff. Jan. 1, 2010) (false statements to third person;
presenting recreated lineup photos at trial, and falsely pretending to be public defender during
Muhammad’s interrogation); Rule 4.4(a) (eff. Jan. 1, 2010) (using “methods of obtaining
evidence that violate the legal rights of *** a person”); Rule 8.4 (eff. Jan. 1, 2010) (engaging
“in conduct involving dishonesty, fraud, deceit, or misrepresentation” or that is “prejudicial to
the administration of justice”). Illinois ethical rules and general principles of due process and
conflicts of interest mandate that a special prosecutor is not involved in the proceeding that will
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adjudicate claims in which he or she has a personal interest and disclose the facts and
circumstances surrounding an actual or potential conflict of interest as soon as he or she
becomes aware of it to the court and affected defendant(s). Ill. R. Prof’l Conduct R. 1.7(a) (eff.
Jan. 1, 2010); [CITATION].
¶ 112 Despite knowing of accusations concerning McDermott and McDermott’s presence in this
case as an alleged torturer, Milan not only continued working the case but, according to the
record, resisted Muhammad’s counsel’s attempt to elicit the facts underlying Milan’s
association with McDermott.
¶ 113 We agree with Muhammad that Milan labored under an actual conflict of interest. Milan’s
removal as special prosecutor fosters public confidence in the impartiality and integrity of our
criminal judicial system. Thus, we need not address Muhammad’s alternative theories.
¶ 114 The Dissent’s Missteps
¶ 115 The dissent’s core contention is that “no actual facts [tie] Milan to Muhammad’s torture or
subsequent prosecution.” Infra ¶ 150. For example, the dissent writes, “[N]othing in the record
*** support[s] the majority’s assertion that Milan had a ‘relationship’ with McDermott ([supra]
¶ 80) or that McDermott’s position with the CCSAO aligned with or overlapped Milan’s work-
related responsibilities ([supra] ¶ 100).” Infra ¶ 149. So, in the dissent’s view, it’s not relevant
that Milan had supervisory authority over everyone in the office. Thus, by fiat, the dissent
excuses Milan’s admitted participation in Muhammad’s prosecution as supervisor. Infra ¶ 149
(demanding proof “McDermott’s position with the CCSAO aligned with or overlapped Milan’s
work-related responsibilities”). The dissent apparently insists on more evidence, something like
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a jointly signed performance review by Milan of McDermott.
¶ 116 Drawing lines (here, around Milan) is a common, though mistaken, move in legal reasoning.
Yet the dissent goes further and mischaracterizes our opinion, the briefing before this court, and
the applicable law. So, we take this moment to correct course.
¶ 117 The dissent’s multiple missteps begin with the standard of review. Like Muhammad’s
briefing, we formulate the key question before this court as one of law, and thus de novo review
applies. See Supra ¶ 81 (citing [CITATION]). The dissent disagrees,
asserting that abuse of discretion standard applies. Infra ¶ 136.
¶ 118 But, like reviewing courts, circuit courts rule on legal questions from time to time. Even the
abuse of discretion standard may require this court to determine “ ‘the legal adequacy of [the]
way the [circuit] court reached its result.’ ” [CITATION] (quoting [CITATION]). And, of course, the
circuit court must exercise its discretion within the bounds of the law. [CITATION]. When the circuit court fails to do so, this court may not sidestep a hard
question of law by falsely invoking judicial modesty. [CITATION] (“legal error is actionable under even the most deferential standard of review”).
¶ 119 The duty to determine hard questions of law dovetails with the duty to decide the questions
before this court to reach a just result sensitive to the need for a sound and uniform body of
precedent. See [CITATION] (“the responsibility of a reviewing court for a just result
and for the maintenance of a sound and uniform body of precedent may sometimes override the
considerations of waiver that stem from the adversary character of our system”).
¶ 120 The issue is whether Milan harbors an “actual conflict of interest” requiring his
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disqualification under section 5/3-9008, given his admitted involvement in Muhammad’s
prosecution. Answering this question requires us to recognize that this term of art, “actual
conflict of interest,” has no statutory definition. Supra ¶ 89. Second, this question requires
examining the full context in which this dispute arose—from an “extraordinary procedure to
investigate and determine factual claims of torture related to allegations of torture[.]” 775 ILCS
/10 (West 2010). Supra ¶¶ 98-99.
¶ 121 The dissent distorts all this, faulting us for “manufactur[ing] a due process theory.” Infra ¶
. A fair reading refutes that kind of specious reasoning. As Muhammad contends the
professional rules of conduct are essential to the just resolution of this issue, which
Muhammad’s expert witness ably applied in an affidavit to the circuit court. And as critical is
Muhammad’s insight that Milan’s involvement undermines the integrity of the proceedings “in
ways known, unknown, and perhaps even unknowable,” “cast[ing] doubt on the procedures in
place to ensure due process under the law.”
¶ 122 Our analysis, which draws together insights from Muhammad and his expert, does not
transform the conflict of interest into anything other than what it is. We agree with the dissent
that, “[u]nder the law[,] it does matter if Milan has a personal interest.” (Emphasis in original.)
Infra ¶ 167. But unlike the dissent, we find critical Milan’s admitted involvement in
Muhammad’s prosecution and relation with McDermott, whose employment at the SAO figured
in the SAO’s conflict.
¶ 123 We do not share the dissent’s farfetched concern that this opinion may require mass
disqualifications. Infra ¶ 164. For the reasons we gave, section 5/3-9008 dictates
disqualification of prosecutors alleged to have committed misconduct against petitioners, and
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the rules of professional conduct and principles of due process also require nothing less.
¶ 124 Conclusion
¶ 125 We reverse the circuit court’s order terminating proceedings under the Act and the circuit
court’s orders denying Muhammad’s motions to rescind Milan’s appointment. We remand for
the appointment of a special prosecutor and an evidentiary hearing on Muhammad’s claim of
torture referred to the circuit court by the TIRC.
¶ 126 We also direct the Clerk of the First Appellate Court to provide a copy of this opinion to the
Illinois Attorney Registration & Disciplinary Commission.
¶ 127 Reversed and remanded with instructions.
¶ 128 JUSTICE TAILOR, concurring in part and dissenting in part:
¶ 129 I concur in the majority’s decision that Judge Lawrence Flood erred in (a) rejecting the
Commission’s definition of a “tortured confession” under the Illinois Torture Inquiry and Relief
Commission Act (Act), [CITATION]; (b) concluding that Muhammad’s
statement was not a “tortured confession” under the Act; and (c) not providing Muhammad an
[SEGMENT 19]
evidentiary hearing on his claim that his statement was obtained through torture. However, I
respectfully dissent from the majority’s decision that then Presiding Judge LeRoy Martin, Jr.,
and his successor, Presiding Judge Erica Reddick erred in denying Muhammad’s successive
motions to rescind Robert Milan’s appointment as special prosecutor in this case. This record
does not show that Milan harbors a conflict of interest, actual or otherwise, and the circuit court
did not abuse its discretion in rejecting Muhammad’s successive bids to have Milan replaced.
¶ 130 The majority removes Milan as special prosecutor finding that his appointment violates
Muhammad’s due process rights. However, Muhammad did not advance a due process theory
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below or on appeal. The majority manufactures a due process theory by quoting from the last
page of Muhammad’s opening brief where he states that Milan should be removed as special
prosecutor because his personal involvement in the Cook County State’s Attorney’s Office
(CCSAO) as a “direct supervisor in the felony review unit and the felony trial attorneys at the
time Muhammad was tortured and tried” undermines the integrity of the proceedings “in ways
known, unknown, and perhaps even unknowable”, “cast[ing] doubt on the procedures in place
to ensure due process under the law.” Supra ¶¶ 83, 97. These quotations come from the section
of Muhammad’s brief arguing that Milan has a conflict of interest under Illinois Rule of
Professional Conduct 5.1(b), which addresses the responsibility of a supervisor for the actions
of his subordinate attorneys. There is no mention of due process in Muhammad’s reply brief.
Muhammad does not cite a single due process case in any of his briefs. The case he does cite,
[CITATION], was not a due process case,
although Justice Blackman in a special concurrence said he would go further than the majority
and also find a due process violation when an interested party’s counsel is appointed to
prosecute a criminal contempt arising out of a civil proceeding. Notably, no other justice joined
Justice Blackman’s concurrence. Yet, somehow the majority concludes from the two quotations
found on the last page of Muhammad’s brief that the “due process clause forms the cornerstone
of [Muhammad’s] challenge” to Milan’s appointment as special prosecutor. Supra ¶ 97
(emphasis added.). Not so. As explained further below, the cornerstone, indeed the only stones,
of Muhammad’s argument to remove Milan is that he has an actual conflict of interest under
section 5/3-9008(a-10) of the Counties Code (55 ILCS 5/3-9008(a-20) (West 2020)) and that
his appointment violates the Rules of Professional Conduct.
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¶ 131 Muhammad advanced numerous arguments below in support of his successive motions to
have Milan removed as special prosecutor: (a) Milan’s initial appointment as special prosecutor
in 2017 violated section 5/3-9008 (a-20) because the court did not first seek out another public
agency that would be willing to serve as special prosecutor before appointing Milan, a private
practitioner; (b) the court did not enter a written order in this case appointing Milan as special
prosecutor in violation of section 5/3-9008(c); (c) Milan harbored a per se conflict of interest
because he worked at the Cook County State’s Attorney’s Office (CCSAO) under then State’s
Attorney Richard Devine, who was found to have an actual conflict of interest in the Jon Burge
cases because he represented Burge when in private practice; (d) Milan had an actual conflict
of interest because of his supervisory role in the CCSAO where he was in the position to charge
Muhammad, trained and supervised the assistant state’s attorneys who allegedly failed to
disclose Brady material when he was supervisor of the Felony Review Unit of the CCSAO, and
was First Assistant State’s Attorney when Detective McDermott, Muhammad’s alleged torturer,
was hired by the CCSAO as an investigator; and (e) an appearance of impropriety existed
because of Milan’s previous employment with the CCSAO and because Milan may be called as
a witness.
¶ 132 In his brief filed in this court, Muhammad argues, inter alia, that Milan has an actual conflict
of interest and his appointment as special prosecutor should be rescinded under section 5/3-
of the Counties Code because: (a) he was the “Bureau Chief at the CCSAO at the very
time Mr. Muhammad was being tortured and tried, which calls into question his impartiality;”
(b) Milan’s role at the CCSAO included supervising the felony review division and the felony
criminal trial attorneys, “the very [assistant state’s attorneys] that Mr. Muhammad claims helped
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to frame him for the murder of Mr. Mims and whose misconduct the TIRC [Torture Inquiry and
Relief Commission] specifically recommended for judicial examination;” and (c) Milan was
“First Assistant at the CCSAO at the very time Mr. McDermott, a serial torturer and one of the
detectives who tortured Mr. Muhammad, was hired by the CCSAO.” Muhammad also argues
that Milan has a conflict of interest under Illinois Rules of Professional Conduct 1.7(a)(2) and
.1(b) for the same reasons. Finally, Muhammad argues that Milan should be removed from this
case because Milan will be called as witness in this case, resulting in an appearance of
impropriety. At oral argument, Muhammad’s counsel stated she was only seeking to have Milan
replaced on a prospective basis.
¶ 133 At no point has Muhammad argued that Milan’s appointment as special prosecutor violated
his due process rights. Arguments not raised in an opening brief are “forfeited.” Ill. S. Ct. R.
(h)(7) (eff. Oct. 1, 2020). Our supreme court has cautioned that “[a] reviewing court should
exercise its power to raise unbriefed issues only sparingly, to avoid assuming a role of advocacy
and being forced to speculate as to arguments the parties might have presented had the issues
been raised.” [CITATION], 237 Ill. 2d 311, 323-24 (2010). Our inquiry should be
whether Milan suffers an actual conflict of interest under section 5/3-9008 (a-10) of the
Counties Code (55 ILCS 5/3-9008 (a-10) (West 2020)) and the Illinois Rules of Professional
Conduct, nothing further.
¶ 134 Despite requesting review of then Presiding Judge Martin’s and Presiding Judge Reddick’s
rulings, Muhammad did not cite the standard of review that is applicable here. Citing [CITATION], the majority contends that because the facts are not in dispute
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our standard of review is de novo. Supra ¶ 81. The majority’s reliance on [CITATION] is misplaced
because there, the defendant claimed that his counsel labored under a per se conflict of interest
under the sixth amendment where the attorney entered into a media contract regarding the case.
Muhammad has not argued at any time that Milan labored under a per se conflict of interest
under the sixth amendment.
¶ 135 In undertaking de novo review, the majority has imposed a far less deferential standard of
review on Muhammad’s only claims, that Milan suffers an actual conflict of interest under
section 5/3-9008 and the Illinois Rules of Professional Conduct. Moreover, and contrary to the
majority’s conclusion, even where the facts are undisputed, the trial court still has discretion in
making certain decisions. [CITATION]. The Counties Code provides that the circuit court “may
appoint” a special prosecutor when the State’s Attorney suffers from an actual conflict of
interest. 55 ILCS 5/3-9008 (a-10) (West 2020); compare with 55 ILCS 5/3-9008 (a-15) (West
) (“the court shall appoint a special prosecutor” when the State’s Attorney recuses).
Because the legislature employed the word “may,” this court has held that the decision to
appoint a special prosecutor rests in the sound discretion of the trial court. [CITATION]. Indeed, our supreme court long ago explained that the statute,
“clearly gives the courts of this State the power to appoint special State’s attorneys under
some circumstances. To properly construe the statute and determine what will and what will
not present a proper case for such appointment clearly involves the exercise of judicial
power, and it is easy to see that different courts might differ as to the extent and character
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of the interest of the Attorney General or State’s attorney which would justify the
appointment of a special officer under the statute.” [CITATION]
¶ 136 Consequently, our review of the circuit court’s decisions to deny Muhammad’s successive
[SEGMENT 20]
motions to rescind Milan’s appointment as special prosecutor under section 5/3-9008 is for an
abuse of discretion only. [CITATION] Likewise,
the determination as to whether counsel should be disqualified under the Rules of Professional
Conduct is left to the sound discretion of the trial court and will not be disturbed on review
absent an abuse of discretion. [CITATION] An abuse of
discretion occurs when the decision of the circuit court is arbitrary, fanciful, or unreasonable,
or where no reasonable person would agree with the position adopted by the court. [CITATION]
¶ 137 No abuse of discretion can be found here. To review, on August 20, 2020, the Office of the
Special Prosecutor (OSP), which Milan led, filed a motion before Judge Flood to terminate the
proceedings in Muhammad’s case. On November 16, 2020, Muhammad filed both a motion to
strike the OSP’s motion to terminate proceedings and a motion to rescind Milan’s appointment
as the special prosecutor on the basis that Milan had not been properly appointed pursuant to
section 5/3-9008 (c) and (a-20), that Milan suffered from the same per se conflict of interest as
prior State’s Attorney Richard Devine, and that Milan suffered from an “actual or apparent”
conflict of interest based on his previous employment with the CCSAO. Milan filed an
objection, arguing that he was properly appointed in the Burge cases pursuant to sections 5/3-
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(c) and (a-20) and that he did not suffer from a conflict of interest based on his previous
positions with the CCSAO. Milan argued that he “did not personally prosecute Muhammad,
made no decisions on the case nor had any involvement in the case whatsoever.” In addition,
Milan argued that then Presiding Judge Martin had recently ruled that the CCSAO, including
State’s Attorney Kim Foxx, “no longer has a conflict representing the State in Burge related
matters” and therefore if Foxx and her office were not conflicted, neither was Milan.
Muhammad filed a reply, arguing again that Milan was not properly appointed under sections
/3-9008 (c) and (a-20) and that Milan suffered from a conflict of interest.
¶ 138 At the hearing on Muhammad’s motion, Milan argued, “this is really a thinly veiled attempt
to forum shop prosecutors[,] the attorney of record in this case since the beginning, Candace
Gorman, is unhappy with decisions I made on both the Muhammad case and the Donald Elam
case, a case that was in front of your Honor.” Milan further argued:
“Let’s fast forward to September 14, 2018. Candace Gorman, the attorney of record on this
case, files a motion with you, your Honor, with Judge Martin -- and me, by the way, notices
me -- asking your Honor to assign the Muhammad case to a judge that never was an
Assistant State’s Attorney. Notices me up on that because she recognized me as the special
prosecutor on these cases since 2017.
On November 7, 2018, Candace Gorman files a notice of motion with you, your Honor,
and with me--again, notices me on it--to appoint a special prosecutor.
On November 20th, 2018, you appointed our office in her presence. She’s in your
courtroom. And on your half sheet, reflects your appointment of our office. No objection by
Candace Gorman about how your-- your appointment of me was unperfected or that I
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have some kind of conflict. Nothing. She wanted us on there.
Between November 20th, 2018 and today, I have more than a dozen emails from
Attorney Candace Gorman to me and the O’Rourke law firm about the Muhammad case.
And I am not going to go through all the dozens of them, your Honor, but I will note two of
them.
January 2019, she reaches out to TIRC for more documentation and to me asking for
more documentation, and TIRC emails both of us. The email goes to Candace Gorman and
to me regarding the materials they are going to send over. There is no objection by
[Ms.] Gorman about my serving as the special prosecutor. She wanted me.
May 2019, she files a Rule to Show Cause against the Chicago Police Department.
She files it in front of Judge Flood and serves me with it in order to get documents from
the Chicago Police Department. No objection to me. She actually serves me on it, wants
me to help her on this.
What then happens? We exchange discovery over months on the Muhammad case. She
calls for a meeting with me in person to talk about the case where she requests a
reinvestigation of the Muhammad case. She hands me this (indicating). This is her request
for new investigation of the conviction of Abdul-Malik Muhammad, pages and pages of
documents that she asks me to review.
And based upon her request, I do so. I tell her that I am going to initiate a reinvestigation.
Don’t confirm that I am going to do a whole investigation. I need to see if what she is telling
me is it accurate and confirm what she does. So I begin to do so. I go through hundreds of
pages of documents to start the reinvestigation.
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As part of that, I interview Mr. Abdul-Malik Muhammad with her, okay. We do a
Zoom interview of Mr. Muhammad. I go through the investigation. I get to the point where
there is just too much evidence against him. All right. There is no way that I can continue
the investigation and bill the County for an investigation that I know is going
nowhere. And I make a determination to proceed against Mr. Muhammad. I inform [Ms.]
Gorman of that, and then I filed a motion to terminate these proceedings in front of Judge
Flood.
It is important to note that during the same period of time, from 2018 to 2020, I am
serving as the special prosecutor on a case called [CITATION], which is a Burge-related
case, and which [Ms.] Gorman was the attorney of record the entire time in front of your
Honor. At no time does she object to my-- does she claim that your appointment of me was
unperfected or the appointment of my office was unperfected or that I had a conflict.”
¶ 139 On December 1, 2020, Judge Martin, then Presiding Judge of the Criminal Division, denied
Muhammad’s motion, finding that Milan’s appointment as special prosecutor in the “[CITATION]”
complied with section 5/3-9008(a-20), and that his appointment in this case likewise
complied with section 5/3-9008(c). Judge Martin further found that:
“[T]his argument that you are raising about how the court went about appointing Mr. Milan
in this particular matter, this issue -- I am just troubled by the fact that this issue is being
raised now all these many years after this was -- this issue first appeared before the court.
And, frankly, I don’t think that that’s — it’s appropriate, and it appears to me that -- as Mr.
Milan has stated, that now this argument arises as Mr. Muhammad is dissatisfied with how
the litigation has gone. And so, that-- that, I find to be-- I find that to be troubling.”
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¶ 140 On January 7, 2021, Muhammad filed a motion to reconsider then Presiding Judge Martin’s
order denying his motion to rescind. Therein, Muhammad again argued that Milan was not
properly appointed pursuant to the statute and Milan’s background as an assistant State’s
attorney prevented him from being named special prosecutor in this case. On January 18, 2021,
Milan filed a motion to strike Muhammad’s motion to reconsider, asserting that Muhammad’s
motion to remove him was untimely, Milan’s appointment was proper under the Illinois statute,
and Milan did not suffer from a conflict of interest. Judge Reddick was named Presiding Judge
of the Criminal Division shortly thereafter. On January 21, 2021, Presiding Judge Reddick
struck Muhammad’s motion for reconsideration of then Presiding Judge Martin’s December 1,
, Order, finding that the motion stated no new grounds and therefore it would be improper
“to reconsider the prior sitting judge’s decision.”
¶ 141 Thereafter, on April 6, 2021, Muhammad filed a “new motion to rescind appointment” on
the grounds that Milan had an actual conflict, this time because Muhammad may call Milan as
a witness. Muhammad stated that defense counsel had uncovered a memorandum addressed to
Milan from an assistant state’s attorney in 1999 in another, unrelated case that arose almost two
years prior to Muhammad’s arrest, describing visible injuries to a suspect’s face after arriving
at the Area 4 police station. The suspect later told the assistant that two unidentified “men”
came into the room and kicked him as he was sleeping on the floor. The suspect did not see the
[SEGMENT 21]
men. The assistant relayed this information to the “Deputy Supervisors in Felony Review.”
Muhammad claimed that this memorandum made clear that “the practice within the CCSAO
was to inform Mr. Milan in instances when police misconduct became known or apparent.”
Milan filed an objection to Muhammad’s successive motion to disqualify on May 18, 2021.
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¶ 142 On July 30, 2021, after hearing argument, Presiding Judge Reddick delivered a lengthy oral
ruling denying Muhammad’s motion. She found that Milan’s initial appointment was proper
and that Muhammad had not “shown sufficient facts and evidence that Milan has a conflict of
interest in this case.” Presiding Judge Reddick’s oral ruling bears quoting at length because she,
like then Presiding Judge Martin, comprehensively explained why Muhammad’s arguments
lacked merit and thoughtfully and cogently exercised her discretion:
“Under the statute, the person bringing the motion, the petitioner in this case, must
plead specific facts to show that the State’s Attorney is either sick, absent, unable to attend,
or has a conflict of interest.
***
Now, in this case, the Court specifically finds that the controlling authority is the
current version of the statute found at 55 ILS -- ILCS 5/3-9008. And based on the
interpretation of that version of the statute, the current version, it does seem to disavow the
[appearance of impropriety] language that was cited. And I believe that[‘s] derived from the
[CITATION] decision, L-A-N-G, with respect to the issue of appearance of impropriety.
***
The Court turns then to the issues of whether the petitioner has shown that Special
Attorney Milan has a conflict of interest under the laws.
Now, the -- part of the claim is really that Milan’s previous positions as supervisor
of the Felony Review Unit and First Assistant State’s Attorney create a conflict in the TIRC
proceedings; that, specifically, Special Attorney Milan was the direct supervisor for the
Felony Review Unit at the time that the petitioner’s case was proceeding; and that he was
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not only responsible for the training of Felony Review Attorneys, but he was also
responsible for their direct supervision. And the Court does clearly consider this claim under
the statutory provision.
In doing so, the Court determines that, although Special Attorney Milan was the
supervisor of the Felony Review Unit, and, again, the petitioner has detailed that he not only
was the supervisor, but he had, in essence, responsibility for these attorneys who
reported to him and that he was responsible for their direct supervision, the Court will
consider that.
Under the standard of the statute as it currently exists, without evidence of Special
Attorney Milan’s direct involvement, the Court does ultimately determine that the conflict
of interest claim is not supported.
***
So returning to the prior point with respect to the conflict, the Court did again
consider and find that the petitioner has not shown that Attorney – Special Attorney Milan
participated directly in or was at all involved in Petitioner’s case beyond his responsibility
as the supervisor. And that without evidence of Attorney Milan’s direct involvement, the
Petitioner’s claim of a conflict of interest is not supported, is not shown.
***
But the Court concludes that even under the standard as it is discussed within the
Relevant authority, it does not appear, again, at this point the petitioner has made an
adequate showing.
Now, the Court does look to our Illinois Rules of Professional Conduct for
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instruction as to how we determine. And if we look at Rule 5.1, that addresses supervising
attorneys. And I’ll just read the formal title, The Responsibilities of Partners, Managers, and
Supervisory Lawyers.
When you look at the language of that particular ethical rule for instruction, for
guidance, it talks about the supervising attorney having to have actual knowledge to be held
accountable for subordinate attorneys’ unethical actions. And I don’t think that’s instructive
because in this instance, and, particularly, in the face of Attorney Milan’s denials during
argument and offer to provide an affidavit, he has stated that he had no involvement or
engagement in the case, direct or otherwise, during the time that he was in the office.
***
However, once again, as we look at the actual controlling language of the law, as
well as how it has been interpreted, it -- again, the petitioner has not made the showing under
the law that at this time there has been a showing that Attorney Milan had any direct
knowledge or participation. And there’s not a showing that he had any actual knowledge
with respect to the actions of either the Felony Review State’s Attorneys who are alleged
to have engaged in certain acts that caused concern and are the basis for claims that are
currently pending before the Court or the Assistant State’s Attorneys who were assigned to
the felony trial division who actually tried the case.
This is important because there were claims that there are police reports that were
not tendered by the State’s Attorneys to the defense before trial, that there was specific
information within the reports that several witnesses, and I believe there might have been
five, were unable to identify the petitioner during the police investigation at the time during
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which he was held in question, that that information was not tendered to defense counsel or
Petitioner Muhammad before trial. And that the significance of these actions by or
inactions by either the Felony Review Assistants or the Assistant State’s Attorneys who
actually tried the case, that those are matters over which Mr. Milan held some
measure of responsibility.
But as the law and the governing provisions and as the Court considers them, to
hold Special State’s Attorney Milan accountable without a showing that he had direct
knowledge would, in essence, set a precedent that every managing or supervising attorney
would be presumed to have actual knowledge of all subordinate attorneys’ conduct. And I
don’t believe that’s the reach of the law at this point. And, again, I’m looking to ethical
rules for guidance as I interpret how the Court should consider the claims here.
I also do note that prior to Attorney Milan’s 2018 appointment as Special
Prosecutor, that he sought and obtained an expert advisory opinion. This was from
an individual named Stephanie, S-T-E-P-H-A-N-I-E, middle initial L, last name Stewart,
S-T-E-W-A-R-T, who was senior counsel to the administrator of the ARDC. And this
individual opined that Special Attorney Milan did not have a conflict of interest that
would prohibit him from serving. And this was based on the finding that his supervisory
role was too attenuated from [Detective McDermott] to create a conflict of interest.
I further note, however, that petitioner also engaged the services of Professor
Andrew, common spelling, Kent, K-E-N-T. And he provided an affidavit analyzing these
very facts before the Court as well and reached an opposite conclusion.
He, in essence, determined that, excuse me, the conclusions of Attorney Stewart
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* * *[f]ailed to directly address the concerns raised by the ethical rules regarding
Rule 1.11 and, specifically, Rule 1.7, excuse me, the conflict of interest.
And, ultimately, the conclusion of the petitioner’s expert is that Attorney Milan does
have a personal interest, in essence, in ascertaining or upholding the work of the State’s
Attorney’s Office because there is a significant risk or that there is a conflict of interest
because -- and I’ll quote here. There is a significant risk that Milan’s representation of the
[CITATION] as a Special Prosecutor in this case will be materially limited by personal interest of
Milan’s.
And it was explained in greater detail. And this was under Illinois Rule of
Professional Conduct 1.7(a)(2).
Again, as the Court looks to the specific issues in this case that arise, the claim of a
significant risk that he will be material[ly] limited, again, is not a sufficient showing under
the language of the statute that there -- if he established that there is evidence that he has an
actual conflict or per se conflict. Even as I look at the language for, again, the appearance
of impropriety, at this stage, based on the information the Court has, I do ultimately
conclude there has not been the showing, the requisite showing.
I do also want to make clear, however, that should additional evidence come forward
showing a direct connection between Special Attorney Milan and the petitioner’s case, his
direct involvement, his direct knowledge, that certainly it will be important that
those matters are brought before the Court because then there would be a showing, and that
is what is not present and what is necessary.”
¶ 143 Presiding Judge Reddick then addressed Muhammad’s claim that Milan suffered from a
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conflict of interest because Muhammad may potentially call him as a witness. Presiding Judge
Reddick stated:
“And in this instance the petitioner has indicated its desire, as well as its intention,
[SEGMENT 22]
to call Special Attorney Milan as a witness with respect to discovering or learning his
information about the procedures, about his supervision of the attorneys involved in the case
back at that time. But, in essence, there really would still need to be a showing for the need
to call Attorney Milan to testify at an evidentiary hearing.
The petitioner specifically alleged that Attorney Milan has important knowledge
regarding the alleged prosecutorial and police misconduct. And that petitioner -- that
counsel expects that once the petitioner is allowed to call Mr. Milan as a witness, he will be
-- the petitioner would be entitled to full discovery, not only as to all the memos from Felony
Review at the pertinent time, but also Mr. Milan’s knowledge of torture by the Chicago
Police Department, the processes in place when confronted with evidence of that torture,
and also the training to his subordinates on this crucial subject. Again, in the face of that,
Attorney Milan stated that he has no personal knowledge of the circumstances of the
petitioner’s case.
And in this instance, even given the wide reaching bases upon which the petitioner
would seek to call Special Attorney Milan, that’s a hurdle that still has to be overcome. It is
not a certainty that he would be called as a witness. There must be a showing that
that is, therefore, necessary information for the matter to proceed.
In this instance it’s as if the petitioner -- and it is -- the petitioner is asking me to
declare that because there might be a conflict I should disqualify him now. And I think it’s
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putting the cart before the horse. There has to be established that there is the conflict to have
him removed. You can’t say there might be a conflict, so remove him.
At this point there has to be a showing, a sufficient showing, that there is enough of
a conflict for that to occur. And I repeat again if there is that showing, this matter should be
brought before the Court for the Court then to make these determinations.”
¶ 144 Finally, Presiding Judge Reddick found that Muhammad forfeited his claim to have Milan
removed as special prosecutor by failing to bring his motion until two years after Milan was
appointed. She stated:
“But I do note that the petitioner has known about Special Attorney Milan’s
appointment as the Special Prosecutor since the beginning stages of this TIRC petition, and
that dates back to 2018. And I note that Judge Byrne had appointed Attorney Milan as
Special Prosecutor back in 2017.
And in this instance the petitioner is the one who sought Special Attorney Milan’s
appointment as Special Attorney for the petitioner’s matters. And after Special Attorney
Milan became engaged with the matter, the discovery process happened, the initial
investigation that Special Attorney Milan conducted, and the petitioner submitted to an
interview with Attorney Milan in the presence of petitioner’s counsel. That only after these
matters occurred and Special Attorney Milan announced that he would proceed with the
prosecution, it was at that time that the initial motion to rescind occurred and then,
ultimately, the new motion that is currently before the Court. * * *
Now, petitioner’s counsel did explain to the Court that it was only after additional
measures she took to obtain information did she become more fully aware of Special
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Attorney Milan’s role as supervisor of the Felony Review Unit at the relevant time. But
even giving consideration to that, the concern for the Court is the timing then of the motions
to rescind while petitioner had knowledge of Special Attorney Milan’s roles within the
State’s Attorney’s Office. And that only after the passage of almost two years, only after
learning that petitioner – that Special Attorney Milan, who pursued the prosecution versus
dismissing it, did then the petition to rescind surface.
And I do think under the language of the term forfeiture, that failure to raise the issue
in a timely manner really speaks to the concern about it being raised now.”
¶ 145 Turning to the law governing this dispute, article VI, section 19, of the Illinois Constitution
provides for the election of a State’s Attorney in each county. Ill. Const. 1970, art. VI, § 19.
The powers and duties of a State’s Attorney include commencing and prosecuting all actions,
civil and criminal, in which the people of the State may be concerned. 55 ILCS 5/3-9005(a)(1)
(West 2020). A special prosecutor may be appointed when the State’s Attorney suffers from an
actual conflict of interest. Id. § 5/3-9008 (a-10). An actual conflict of interest occurs when the
State’s Attorney “is interested in” the case as either (1) a private individual, or (2) an actual
party to the action. [CITATION], ¶ 17. Section 5/3-9008 also applies to the removal of a special prosecutor.
[CITATION]. Milan is not an
actual party to the action, so the only issue is whether he is interested in Muhammad’s case as
a private individual. “When the alleged interest is personal, a defendant must show either (1)
that the relationship involves significant emotional ties; or (2) that defendant suffered ‘actual
and substantial prejudice.’ “[CITATION], 3 (1998) (citing [CITATION]).
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Polonowski, [CITATION]).
¶ 146 Contrary to Muhammad’s argument, the appearance of impropriety is no longer enough to
establish that a prosecutor harbors an actual conflict of interest under section 5/3-9008. Under
the current version of section 5/3-9008, which was amended in 2016 to expressly add the “actual
conflict of interest” language, the party seeking a special prosecutor must demonstrate an actual
conflict of interest, not merely the appearance of impropriety. Farmer, [CITATION]. Therefore, the line of cases under the pre-amended version of the statute that
holds that the appearance of impropriety is sufficient to remove a prosecutor no longer apply.
See e.g. People v. VanderArk, [CITATION] (citing preamended version);
People v. Weeks, [CITATION] (citing preamended version); People v. Lang,
[CITATION] (citing preamended version). The majority correctly points out
that the court in People v. Benford, [CITATION], stated the appearance of
impropriety was enough to disqualify a prosecutor, but that court cited cases interpreting the
pre-amended version of the statute and did not analyze the text of the amended version of the
statute adding the “actual conflict of interest” language.
¶ 147 Muhammad bears the burden of proving by sufficient facts and evidence that the special
prosecutor has an actual conflict of interest in a specific case requiring the appointment of a
new special prosecutor. 55 ILCS 5/3-9008 (a-10) (West 2020); Arrington, [CITATION];
Farmer, [CITATION]. Absent such facts, Milan has no burden
to show that he was not conflicted. Arrington, [CITATION] (distinguishing
People v. Courtney, [CITATION], where prosecutor had a per se conflict,
in which case prosecutor bears burden to show no conflict).
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¶ 148 Our precedents demonstrate that a defendant bears a substantial and exacting burden to
remove a prosecutor on the basis that he has a personal interest in the matter under section 5/3-
of the Counties Code. See e.g. [CITATION] (juvenile’s allegations that two police detectives and an assistant state’s attorney
conspired to present perjured testimony at a probable cause hearing and that the brother of one
of the police detectives was an assistant state’s attorney who was also the supervisor of the
Organized Crimes Division did not show that the state’s attorney was an interested party and,
therefore, should be disqualified); [CITATION] (the trial
court did not abuse its discretion in denying the defendant’s motion for the appointment of a
special prosecutor, which alleged that one of the assistant State’s Attorneys who had initially
been involved in the case was going to testify as a witness at trial regarding an incriminating
statement made by the defendant in court); [CITATION] (“[t]o hold that a special prosecutor must always be appointed whenever a victim or witness is
employed by a state, county, or local agency would be an illogical, as well as impractical,
encroachment upon the authority of a constitutional officer.”); [CITATION], ¶ 62 (finding no abuse of discretion in the trial court’s decision not to appoint a special
prosecutor even though the victim was the brother of the county sheriff and had made campaign
contributions to the state’s attorney); [CITATION], ¶ 20 (no inherent
conflict of interest any time the state’s attorney is called upon to investigate and prosecute
police-involved shootings); [CITATION], ¶ 52 (holding no
special prosecutor was required even though an assistant state’s attorney was the complaining
[SEGMENT 23]
witness against defendant in an unrelated case); [CITATION], 354
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(2010) (holding that the defendant failed to show that the state’s attorney’s public criticism of
his predecessor’s handling of the defendant’s case warranted removal).
¶ 149 Muhammad has failed to meet his initial burden to offer facts or evidence to show that Milan
played any role in Muhammad’s interrogation or prosecution for Mim’s murder. The majority’s
assertion that “the undisputed facts show Milan exercised a quasi-judicial power as Supervisor
of the Felony Review Unit in the Cook County’s State’s Attorney’s Office that charged
Muhammad with first-degree murder” (supra ¶ 94) is as ambiguous as it is misleading, for it
suggests that because Milan supervised the Felony Review Unit he made the decision to charge
Muhammad. But there is no such evidence in the record. Similarly, there is nothing in the record
to support the majority’s assertion that Milan had a “relationship” with McDermott (supra ¶ 80)
or that McDermott’s position with the CCSAO aligned with or overlapped Milan’s work-related
responsibilities (supra ¶ 100). Further, Muhammad has not alleged at any time that any assistant
state’s attorneys working in the felony review unit were present for, played a role in, or were
aware of his alleged torture. There is no indication in the record or in Muhammad’s complaint
that suggests that an assistant state’s attorney was even present when Muhammad provided the
subject statement to Detectives Fidyk and McDermott. And even if Milan was involved in
charging Muhammad, Milan would still not harbor an actual conflict of interest. Muhammad
has not cited any case disqualifying a prosecutor based on police wrongdoing imputed to the
prosecutor. To the contrary, in [CITATION], we held that
allegations of police misconduct were not sufficient to establish that the State’s Attorney was
personally interested in the case, and appointing a special prosecutor without specific facts
would “open the door to requiring a special prosecutor to be appointed any time a police officer
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is suspected of wrongdoing.” Muhammad has not come forth with any evidence showing Milan
participated in, or knew of, Muhammad’s alleged tortured confession.
¶ 150 The majority acknowledges that a defendant must establish an “actual conflict of interest”
under section 5/3-9008 (a-10) for the appointment and removal of a special prosecutor and may
not rely on speculation or suspicion ([CITATION]), but the majority cites no
actual facts tying Milan to Muhammad’s torture or subsequent prosecution and relies solely on
the fact that he held a supervisory position in the CCSAO. Lacking any actual evidence, the
majority improperly engages in speculation and supposition in finding that Milan has an actual
conflict. As Presiding Judge Reddick reasoned, there is simply no evidence of any disqualifying
connection between Milan and Muhammad.
¶ 151 The majority cites [CITATION], for the proposition that when
an error casts doubt on the integrity of a proceeding, we have a constitutional duty to act. Supra
¶ 85. In [CITATION], after a hearing related to the defendant allegedly driving with a revoked license,
an assistant state’s attorney followed the defendant out of court and hid behind potted plants to
watch the defendant drive away from the courthouse. The assistant state’s attorney then
contacted police to inform them that the defendant was driving without a license. [CITATION].
The assistant state’s attorney then prosecuted the case until trial, when another attorney from
the Lake County State’s Attorney’s Office prosecuted the case. [CITATION]. The assistant state’s
attorney who witnessed the alleged crime was the State’s chief witness at trial. [CITATION].
¶ 152 On appeal, the Second District found that the defendant’s prosecution created an appearance
of impropriety because the assistant state’s attorney surreptitiously followed the defendant until
he observed the defendant commit a crime, which resulted in charges. [CITATION]. The reviewing
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court believed that “the aggressive behavior toward the defendant created the appearance that
the State’s Attorney’s office was obsessed with finding evidence against the defendant to obtain
a conviction against him at all costs.” [CITATION] “These facts created an improper appearance that the
State was too involved with the underlying case to be fair in its prosecution of the defendant.”
[CITATION]
¶ 153 Aside from the obvious factual differences ([CITATION] (“we emphasize that our holding is
based on the specific facts of this case”)), [CITATION] is inapplicable here. [CITATION] does not impose a
duty on this court, constitutional or otherwise, to remove Milan from this case. Rather, the [CITATION]
holding was based on the statutory language, “is interested in any cause or proceeding” in the
preamended version of section 5/3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2014)).
[CITATION] In the 2016 amended version of section 5/3-9008 (a-10), that language has been
replaced with “the State’s Attorney has an actual conflict of interest in the cause or proceeding.”
ILCS 5/3-9008(a-10) (West 2016). This “actual conflict of interest” language forecloses the
possibility of a special prosecutor being appointed where there is the mere “appearance of
impropriety.” [CITATION], ¶ 39.
¶ 154 The majority’s reliance on [CITATION], is also
misplaced because it involved a prosecutor’s per se conflict of interest. There, the defendant’s
former counsel became the state’s attorney of Kankakee County before the defendant’s trial.
The prosecutor assigned to the case assured the court that the Attorney General’s office would
be taking over the prosecution. However, just before trial, the prosecutor announced without
explanation that the Attorney General’s office would not be entering the case and that the State
was ready for trial. The defendant did not object at that point but raised the issue in a posttrial
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motion and on appeal. Under those circumstances, the appellate court overlooked the forfeiture
and reversed the defendant’s conviction, finding that a special prosecutor was required when a
defendant’s trial counsel accepts a managerial position in the office that is prosecuting the
defendant where that attorney was “intimately involved in the defendant’s representation before
becoming State’s Attorney” and made “numerous court appearances on behalf of the defendant
and was clearly privy to the defendant’s confidences.” [CITATION] at 1031, 1034, 1037. Unlike in
[CITATION], Milan never represented Muhammad. Thus, Muhammad did not establish that Milan
suffered an actual conflict of interest under section 5/3-9008 (a-10) on account of a personal
interest in his case.
¶ 155 Nor does Milan suffer a conflict of interest under Rule 1.7(a)(2) or Rule 5.1(b) of the Illinois
Rules of Professional Conduct. Rule 1.7(a)(2) provides: “(a) Except as provided in paragraph
(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if * * * (2) there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer’s responsibilities
to another client, a former client or a third person or by a personal interest of the lawyer.” lll. R.
Prof’l. Conduct (2010) R. 1.7 (a) (eff. Jan. 1, 2010). Rule 5.1(b) provides that “[a] lawyer having
supervisory authority over another lawyer shall make reasonable efforts to ensure that the other
lawyer conforms to the Rules of Professional Conduct.” Ill. R. Prof’l Conduct (2010) R. 5.1(b)
(eff. Jan. 1, 2010).
¶ 156 A party seeking to disqualify counsel under the Rules of Professional Conduct bears the
burden of proving a conflict of interest. [CITATION]. Disqualification is a drastic measure. In re the Commissioner of Banks and
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Real Estate, 327 Ill. App. 3d 441, 478 (2001).
¶ 157 As explained above, Muhammad did not offer any evidence that Milan had a personal
interest in Muhammad’s case. Contrary to Muhammad’s argument, the 1999 memorandum
from an assistant state’s attorney to Milan does not constitute evidence of Milan’s personal
involvement because it describes a separate, unrelated case involving different detectives that
occurred almost two years prior to Muhammad’s arrest. There is similarly no evidence that
Milan, in this supervisory capacity, was aware of any alleged Brady violations that occurred
related to Muhammad’s prosecution. Accordingly, Muhammad failed to meet his burden to
establish that Milan suffered a conflict of interest under Rule 1.7(a)(2) or Rule 5.1(b) of the
[SEGMENT 24]
Illinois Rules of Professional Conduct. Therefore, Judge Reddick did not abuse her discretion
in denying Muhammad’s request to disqualify Milan on this basis.
¶ 158 Unable to find a basis to conclude that Milan suffers an actual conflict of interest under
section 5/3-9008 (a-10) or the Illinois Rules of Professional Conduct, the majority cherry picks
two sentences from the second to last paragraph of Muhammad’s 46-page opening brief,
announces that Muhammad has advanced a due process argument, and sets out to resolve this
phantom argument by repeatedly equating Milan’s role as special prosecutor with that of a
sitting judge. To be clear, the words “due process” appear but once on the last page of
Muhammad’s opening brief and not at all in his reply brief. The majority has manufactured
Muhammad’s due process argument out of the whole cloth, denying Milan an opportunity to
respond, in derogation of our supreme court’s repeated admonition to avoid assuming the role
of advocate. [CITATION] (appellate court raising an issue sua sponte was a violation of well-established principles); [CITATION]
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(2002) (we must refrain from raising unbriefed issues, to avoid having the “effect of
transforming this court’s role from that of jurist to advocate”).
¶ 159 The majority concludes that due process does not allow, and we must not tolerate, the “risk
of actual bias” that Milan’s personal participation in this case presents. Supra ¶¶ 96, 101
(emphasis added.). The majority points out that “decades of torture by Chicago police took
place before the courts and legislature acted” and quotes an article which states that “the crisis
of police torture is more far reaching than the ‘bad apples’ myth suggests.” In so doing, the
majority effectively holds that under a due process analysis, the appearance of impropriety is
sufficient to remove a special prosecutor. Cf. [CITATION] (under the current version of section 5/3-9008, the party seeking a special prosecutor must
demonstrate an actual conflict of interest, not merely the appearance of impropriety). The
implication of the majority’s finding is that Muhammad’s unsupported allegations of guilt by
association are enough to have Milan removed from this case.
¶ 160 The phrase “risk of actual bias” in the due process context is generally found in cases
involving a defendant’s motion for substitution of judge for cause. A motion for substitution of
judge for cause is heard by a second judge, allaying due process concerns, and “ensures that
any substitution coming after a substantive ruling has been made is the result of a proven bias
or high probability of the high risk for actual bias and is not a mere ploy for tactical advantage.”
[CITATION]. However, the forced removal of a judge in
such circumstances requires that actual prejudice, “that is, either prejudicial trial conduct or
personal bias,” be established. [CITATION]. It is not enough for a defendant to allege there is a
potential appearance of impropriety, as it does not equate to actual prejudice. [CITATION]
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v. Klein, [CITATION]
¶ 161 Milan is not a judge, nor is he acting as one here. Nevertheless, quoting [CITATION]
the majority finds that because Milan had quasi-judicial
power as supervisor of the felony review unit that charged Muhammad with first-degree murder,
Milan now has the improper ability to “judge himself and his subordinates” because he is
required to assess “the validity of his original decision to prosecute,” thereby violating
Muhammad’s due process rights. Supra ¶ 94. Again, there is no evidence in the record that
Milan had any role in the decision to charge Muhammad. In any case, Milan in no sense is
acting as a “judge” in this case.
¶ 162 The majority attempts to find a due process violation by equating Milan’s position as special
prosecutor in this case to that of the “sitting justice” in [CITATION], who “had the opportunity to
rule on a collateral appeal by the same defendant when decades earlier as a prosecutor, the
judge had authorized the seeking of the death penalty.” [CITATION] This analogy
falls flat because Milan had no such power in this case. Moreover “there is general agreement
that prosecutors’ participation in a case is not subject to the same conflict of interest rules that
govern judges.” [CITATION] (citing [CITATION]). That is because
prosecutors, unlike judges, are not disinterested parties to criminal prosecutions. [CITATION]
(“Prosecutors need not be entirely ‘neutral and
detached’ “); [CITATION] (“[o]f course, a
prosecutor need not be disinterested on the issue of whether a prospective defendant has
committed the crime with which he is charged”). Moreover, the United States Supreme Court
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does not appear to have expressly recognized a due process right to a conflict-free prosecutor.
See [CITATION], 315 Neb. at 53.
¶ 163 Rather, the farthest the United States Supreme Court appears to have gone is to state that a
prosecutor’s personal conflict of interest “may” “in some contexts raise serious constitutional
questions.” [CITATION], 446 U.S. at 249-50. Regardless, the majority ventures far afield with its
novel “judge in his own case” due process theory. “It is well settled that the American
prosecutor plays a special role in the search for truth: the prosecutor’s interest is in seeing that
justice is done, not winning a case.” [CITATION], 2019 IL App (1st) 181486, ¶ 78 (citing
[CITATION], 229 Ill. 2d 56, 73 (2008) (citing [CITATION], 527 U.S. 263, 281
(1999)). The appointment of a special prosecutor does not change the objective of the office,
nor is there anything in the record showing that Milan’s role as special prosecutor in this case
is inconsistent with the search for truth. The cornerstone of the majority’s analysis – that Milan
became the judge of his own case – crumbles under its own weight because there is no evidence
in the record that Milan had any involvement in Muhammad’s prosecution, let alone any alleged
police or prosecutor wrongdoing. Milan is no more a judge of his own case than any other
prosecutor would be in seeking the truth in this or any other case.
¶ 164 Under the majority’s reasoning, a postconviction petitioner could disqualify a prosecutor by
simply alleging prosecutor or police misconduct because such allegations would call on the
prosecutor to “judge” his own conduct or the decision to prosecute or the conduct of police. But
no court has ever adopted such an expansive due process theory of prosecutor conflict. And for
good reason. Appointing a special prosecutor implicates the public prosecutor’s duty as an
elected officer under the Illinois Constitution to represent the People ([CITATION]).
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App. 3d 499 (1997) (“[t]o hold that a special prosecutor must always be appointed whenever a
victim or witness is employed by a state, county, or local agency would be an illogical, as well
as impractical, encroachment upon the authority of a constitutional officer”)), and the fiscal
purse because counties are responsible for the special prosecutor’s fees (55 ILCS 5/3-9008(b)
(West 2020)). Moreover, TIRC proceedings, like postconviction proceedings, are civil matters.
“Judicial review of a TIRC disposition is a civil proceeding, akin to the third stage of a
postconviction proceeding, which is also civil in nature.” (Internal quotations omitted.). [CITATION].
As this court explained in [CITATION], the Act is unusual in that a claim of torture is considered first by the
Commission and then by the circuit court. “Thinking about the process of a torture claim
through the lens of the more common postconviction process shows that the initial screening of
the claim is roughly comparable to the first stage, the Commission’s inquiry and
recommendations are the second stage, and the circuit court hearing is the third stage evidentiary
hearing.” [CITATION]. “If a matter is referred to [the circuit]
court, a claimant can receive what is referred to in Illinois as a ‘third stage post-conviction
hearing.’ This means that the claimant can have a full court hearing before a judge to show by
a preponderance of the evidence that his confession was coerced.” Id. (citing State of Illinois
Torture and Relief Commission, Mission and Procedure Statement,
http://www.illinois.gov/tirc/Pages/default.aspx (last visited Mar. 1, 2016); See also [CITATION].
¶ 165 The majority misconstrues Milan’s role in these proceedings. As special prosecutor in this
case, Milan’s role was to represent the State. 775 ILCS 40/50(b) (West 2020). Milan was no
[SEGMENT 25]
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more a “judge” in this case than any assistant state’s attorney filing a motion to dismiss or an
answer in a postconviction proceeding. Illinois caselaw is replete with instances of assistant
state’s attorneys representing the People in postconviction cases where petitioners allege that
assistant state’s attorneys and police officers violated their constitutional rights by obtaining
tortured and involuntary confessions or engaging in other misconduct, including specifically
not turning over Brady material. Following the majority’s rationale for its newfound due process
right, a public prosecutor would be disqualified from representing the People in such
proceedings because they would be called upon to judge themselves. However, Milan’s decision
that the evidence against Muhammad in this case is overwhelming, and even insufficient to
warrant an evidentiary hearing, is no more outcome determinative than a prosecutor’s decision
to defend a conviction in a postconviction proceeding. The circuit court makes the ultimate
decision on whether an evidentiary hearing is necessary following a referral by the Commission
and, if so, whether the evidence presented supports a finding for the petitioner. 775 ILCS
/50(a) (West 2020); [CITATION] (“[W]e read the TIRC
Act to require the circuit court to hold an evidentiary hearing upon referral from TIRC, unless
the circuit court finds that the TIRC’s finding of ‘sufficient evidence of torture to merit judicial
review’ was ‘against the manifest weight of the evidence.’ “) (emphasis in original).
¶ 166 The majority then pivots and states that it does not matter if “Milan was personally involved
in interrogating suspects or knew that police officers obtained tortured confessions” because he
“spent nearly 20 years at the SAO, eventually becoming First Assistant” and is trying to protect
his professional reputation. Supra ¶ 106. The majority claims Milan could not possibly be
objective in this case because he has a personal interest in his public image and dropping charges
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====== End of Part ====== 1-22-0372
against Muhammad would be seen as an admission of error that would harm Milan’s reputation.
¶ 167 Under the law it does matter if Milan has a personal interest. Milan’s reputation is not at
issue here. What is at issue here is whether then then Presiding Judge Martin and Presiding
Judge Reddick abused their discretion in denying Muhammad’s motions to remove Milan
pursuant to section 5/3-9008 (a-10) or the Illinois Rules of Professional Conduct. As
Muhammad has not met his burden to prove an actual conflict under section 5/3-9008 (a-10) or
the Illinois Rules of Professional Conduct, I would find that the Presiding Judge Martin and
Presiding Judge Reddick did not abuse their discretion.
¶ 168 There is simply no evidence that Milan or anyone from the CCSAO played a part in the
alleged torture of Muhammad or its alleged coverup or knew of any wrongdoing by Detectives
Fidyk or McDermott in obtaining his alleged tortured confession. The fact that Milan supervised
the Felony Review Unit or was the First Assistant when McDermott was hired is not indicative
of his or the CCSAO’s complicity in the police department’s pattern and practice of torture.
There has to be some actual nexus between Muhammad’s case and Milan’s involvement.
Speculation, supposition and conjecture are not sufficient.
¶ 169 Finally, the majority conveniently ignores the well-reasoned decisions of then Presiding
Judge Martin and Presiding Judge Reddick regarding the suspicious timing of Muhammad’s
motions to rescind Milan’s appointment. Not only did they not abuse their discretion in denying
Muhammad’s motions on the merits, they also did not abuse their discretion in denying
Muhammad’s motions under the principal of forfeiture. Milan argued below and in this court
that Muhammad’s successive motions to rescind his appointment were an effort to shop for a
more favorable prosecutor. Despite specifically requesting that Milan be appointed in this case,
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Muhammad sought to have Milan removed two years after his appointment alleging that Milan
had a disabling conflict of interest, but only once Milan moved to terminate the proceedings in
this case for lack of evidence supporting Muhammad’s claim of torture. Both then Presiding
Judge Martin and Presiding Judge Reddick expressly found that the timing of Muhammad’s
successive motions was highly suspect.
¶ 170 Gorman, however, averred in her affidavit that until mid-September 2020, she “had no idea
that Mr. Milan had been an assistant state’s attorney in a high-ranking role at the time of
[Muhammad’s] arrest, torture, and trial.” It is not clear from Gorman’s affidavit whether she
claims she was unaware that Milan had previously been an assistant state’s attorney or whether
she claims that she was unaware that Milan held a high-ranking position with the CCSAO.
However, Milan points out that the 2017 order appointing him in the “[CITATION]” cases expressly
states that he is a former First Assistant Cook County State’s Attorney. In addition, as Milan
advised then Presiding Judge Martin, he had also been appointed the special prosecutor in the
case of Donald Elam, another client of Gorman’s. Milan advised then Presiding Judge Martin
that he was appointed as the special prosecutor in the Elam case on June 6, 2018, and on August
, 2020, he successfully moved to terminate Elam’s case. At no time did Gorman challenge
Milan’s appointment in the Elam case.
¶ 171 At oral argument, Gorman told us, “It never dawned on me in a million years that the special
prosecutor would be coming from that same office because of the nature of what the special
prosecutor was doing. So, no, this was the person I was told by the State’s Attorney’s Office
was hearing these [CITATION] when they recused themselves and to me it’s still mindboggling that
this is who in fact was appointed.” Yet, as far as the judge who was assigned to hear
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Muhammad’s case, Gorman also told us, “I did ask in my motion for a judge not to have a
former State’s Attorney for a judge because of the potential for bias but as far as Mr. Milan, I
knew nothing about him and I certainly didn’t know he was Head of Felony Review at the very
time my client was being tortured during Felony Review.”
¶ 172 There are many reasons why then Presiding Judge Martin and Presiding Judge Reddick
could have determined that Muhammad’s motions to remove Milan were gamesmanship and
not based on any genuine conflict of interest. In the age of the internet, it is difficult to
comprehend how Gorman was not aware of Milan’s high-ranking position with the CCSAO. In
, Milan had succeeded to the role of special prosecutor in the high profile and newsworthy
[CITATION] cases. There had been substantial media coverage of Milan’s work as special prosecutor
in the [CITATION] cases. By way of example, on July 10, 2019, after Milan was appointed special
prosecutor in this case and 16 months before Gorman filed the first of Muhammad’s successive
motions to disqualify Milan, the Chicago Sun Times published a story under the byline, “Judge
to Reconsider if Special Prosecutor Needed for [CITATION]-Related Case,” identifying Milan as “a
former top deputy to ex-State’s Attorney Richard Devine.” Chicago Sun-Times, July 10, 2019.
In addition, Gorman herself moved for Muhammad’s case to be assigned to a judge who had
not previously worked for the CCSAO, begging the question why she didn’t similarly move as
to the special prosecutor that would be assigned to Muhammad’s case. Further, Gorman’s
affidavit is ambiguous regarding her knowledge of Milan’s prior association with the CCSAO.
Finally, Milan was the special prosecutor in the [CITATION] case with Gorman.
¶ 173 There is a more than ample basis in this record to support then Presiding Judge Martin’s and
Presiding Judge Reddick’s finding that the suspicious timing of Muhammad’s motions to
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disqualify Milan required their denials under the principle of forfeiture. I would find on this
record that Muhammad’s bid to have Milan removed was prompted not by any conflict of
interest but a desire for a more favorable prosecutor, as Milan argued below and on appeal.
¶ 174 Then Presiding Judge Martin and Presiding Judge Reddick did not abuse their discretion in
denying Muhammad’s successive motions to have Milan removed from this case based on an
alleged conflict of interest under section 5/3-9008 (a-10) and the Illinois Rules of Professional
Conduct. Muhammad never raised a due process argument, and in any case his due process
rights were not violated.
¶ 175 Accordingly, I would affirm then Presiding Judge Martin and Presiding Judge Reddick’s
orders denying Muhammad’s successive motions to rescind Milan’s appointment as special
prosecutor in this case.
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[CITATION]
[SEGMENT 26]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 00 CR 13572
; the Hons. Lawrence Flood, LeRoy K. Martin, Erica L.
Reddick, Judges, presiding.
Attorneys H. Candace Gorman, of the Law Office of H. Candace Gorman, of
for Chicago, for appellant.
Appellant:
Attorneys Robert J. Milan, Special State’s Attorney, of Chicago (Alan J.
for Spellberg, Assistant Special State’s Attorney, of counsel), for
Appellee: appellee.
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Now, respond to the instruction.
### Instruction:
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/01/2023 09:07 AM CDT
-1-
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
State of Nebraska, appellee, v.
Jorge Galindo, appellant.
___ N.W.2d ___
Filed September 1, 2023. No. S-21-419.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
2. Postconviction: Judgments: Appeal and Error. Whether a claim
raised in a postconviction proceeding is procedurally barred is a ques-
tion of law which an appellate court reviews independently of the lower
court’s ruling.
3. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
4. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
5. Postconviction. The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.
6. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues that were known to the defend
ant and which were or could have been litigated on direct appeal.
7. Constitutional Law: Right to Counsel: Conflict of Interest. A conflict
of interest which adversely affects a lawyer’s performance violates the
client’s Sixth Amendment right to effective assistance of counsel.
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315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
8. Effectiveness of Counsel: Conflict of Interest: Words and Phrases.
The phrase “conflict of interest” denotes a situation in which regard
for one duty tends to lead to disregard of another; a conflict of inter-
est places a defense attorney in a situation inherently conducive to
divided loyalties.
9. Postconviction: Effectiveness of Counsel: Conflict of Interest: Proof.
In order to obtain relief in a postconviction action based upon the
alleged conflict of interest of trial counsel, the defendant must show an
actual, as opposed to an imputed, conflict of interest.
10. Postconviction. An evidentiary hearing is not required when a motion
for postconviction relief alleges only conclusions of fact or law.
11. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
his or her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense.
12. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
13. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To show prejudice under the prejudice component of Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
the defendant must demonstrate a reasonable probability that but for
his or her counsel’s deficient performance, the result of the proceeding
would have been different. A reasonable probability does not require
that it be more likely than not that the deficient performance altered the
outcome of the case; rather, the defendant must show a probability suf-
ficient to undermine confidence in the outcome.
14. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
Appeal from the District Court for Madison County: Robert
R. Steinke, Judge. Affirmed.
Adam J. Sipple, of Sipple Law, and David A. Tank for
appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
Stratman and Burns, District Judges.
Per Curiam.
Jorge Galindo appeals the district court order that overruled
his motion for postconviction relief without an evidentiary
hearing. All of Galindo’s claimed errors challenge his five
death sentences for murders committed during a bank robbery.
Upon our de novo review, we affirm.
I. BACKGROUND
On September 26, 2002, Galindo, Erick Vela, and Jose
Sandoval entered a bank in Norfolk, Nebraska. Their purpose
was to carry out robbery plans that Sandoval and Galindo had
been formulating for at least a month. In short order, they
shot and killed four bank employees and one customer, with
Galindo firing the shots that killed one of those five people.
Another customer walked in but was able to escape amid at
least two shots fired at her by Galindo. Galindo’s gunfire did
not hit the customer, but she was injured by shattered glass.
One of Galindo’s bullets struck near the drive-through win-
dow of a fast-food restaurant across the street from the bank.
Galindo and his accomplices then fled, less than a minute
after entering the bank. They had taken nothing. By the time
they were apprehended, they had broken into two residences
and stolen two vehicles; Galindo acquired the keys to the first
vehicle at gunpoint.
Later that day, Galindo, Vela, and Sandoval were appre-
hended by law enforcement officers, soon after throwing their
guns from the second vehicle. Galindo eventually led law
enforcement to the guns. He also identified a photograph of an
additional accomplice.
A jury found Galindo guilty of five counts of first degree
murder, among other offenses. Galindo was sentenced to death
for each of the five murders in accordance with the procedures
set forth in Neb. Rev. Stat. § 29-2519 et seq. (Reissue 2008).
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
Before the death sentences were pronounced, a jury found
that evidence at the aggravation hearing demonstrated five
statutory aggravating circumstances existed for each of the five
bank robbery murders: (1) the murder was committed in an
effort to conceal the identity of the perpetrator; (2) the mur-
der was especially heinous, atrocious, or cruel or manifested
exceptional depravity; (3) at the time of the murder, another
murder had been committed; (4) at the time of the murder,
Galindo knowingly created a great risk of death to at least
several persons; and (5) Galindo had a substantial prior history
of serious assaultive or terrorizing criminal activity, based on
evidence of his involvement in the murder of Travis Lundell,
committed before the bank robbery. See § 29-2523.
Regarding the Lundell murder, the State presented evi-
dence at the aggravation hearing that Galindo recruited Vela
to participate in the bank robbery and that to demonstrate
Vela was worthy of the scheme, Vela killed Lundell with
Galindo’s and Sandoval’s assistance. Cortney Barritt, who
was Galindo’s girlfriend at the time of the bank robberies,
testified that on the day Lundell died, Galindo told her that
he, Vela, and Sandoval had killed Lundell by strangula-
tion and buried his body in a location Galindo later pointed
out to Barritt. Evidence showed that Galindo eventually led
law enforcement to the location where Lundell’s body was
recovered. The State’s evidence at the aggravation hearing
also included the testimony of witnesses who were incar-
cerated in the same facility as Galindo and his accomplices
after the bank robbery: Daniel Animas, Miguel Lopez, and
Hector Abendano. Those witnesses testified that during con-
versations with Galindo, he said that he held Lundell’s legs
while Vela strangled Lundell and that he helped dispose of
Lundell’s body.
After the jury found aggravating circumstances existed,
the three-judge sentencing panel in turn conducted a hear-
ing to determine the existence of statutory and nonstatu-
tory mitigating circumstances. The sentencing panel then
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315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
weighed the mitigating circumstances it found against the
aggravating circumstances found by the jury and conducted a
proportionality review to determine whether the death penalty
should be imposed. Based upon this analysis, it sentenced
Galindo to death for each of the five bank robbery murders.
This court affirmed on direct appeal, where Galindo was
represented by the same counsel who represented him at trial.
See State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
In 2011, Galindo timely moved for postconviction relief, pro
se. The district court denied relief without an evidentiary hear-
ing, and Galindo appealed. Upon the State’s suggestion and
Galindo’s stipulation, we summarily vacated the judgment and
remanded the cause. Consistent with our directions on remand,
the district court appointed counsel.
In 2019, Galindo, represented by appointed counsel, filed
his first amended motion for postconviction relief. Galindo’s
postconviction claims fell into three general categories: (1)
prosecutorial misconduct claims, (2) ineffective assistance of
counsel claims, and (3) additional claims.
Many of Galindo’s postconviction claims related to the
Lundell murder, a homicide for which Galindo was not con-
victed but which, as noted, was the basis for an aggravating
circumstance supporting the death penalty for the bank rob-
bery murders. We summarize Galindo’s factual allegations in
more detail in the sections below. But broadly stated, Galindo’s
postconviction motion claimed that after his direct appeal, he
learned that at the time of his trial, the county attorney was
himself the subject of an ongoing criminal investigation that
linked him to a drug ring. The county attorney’s involvement
with the drug ring allegedly included purchasing and using
or being in the presence of illegal drugs, socializing with the
drug ring members, using them as informants, tipping them
off about investigations, protecting them from prosecution,
and doing other favors. Galindo contended that his aggrava-
tion hearing presented an opportunity for the county attor-
ney and his criminal associates to trade favors: In exchange
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
for the criminal associates’ testimony against Galindo, Galindo
claimed, the county attorney would recommend leniency in
their criminal cases.
Galindo’s postconviction motion asserted that circum-
stances suggested the county attorney directed the cell place-
ment of certain inmates, some connected to the drug ring,
with the intention of either eliciting incriminating statements
from Galindo and an accomplice or fabricating false testi-
mony against Galindo. The county attorney called some of
those inmates—Animas, Lopez, and Abendano—as witnesses
against Galindo relative to the Lundell murder. Galindo also
made detailed allegations about the outcomes of the inform
ants’ own criminal cases, which Galindo characterized as
relatively favorable to them and at the behest of the county
attorney. Further, Galindo alleged that the county attorney
protected Abendano from federal prosecution to avoid expos-
ing the county attorney’s own misdeeds to federal scrutiny.
According to Galindo’s motion, many of these details were
either withheld from him by the State or inadequately pursued
by his counsel.
The district court denied postconviction relief for all the
claims, without an evidentiary hearing, and Galindo now
appeals that order. We recount additional relevant details in
the analysis below.
II. ASSIGNMENTS OF ERROR
Galindo assigns, condensed and restated, that the district
court erred in the following ways: (1) by denying an eviden-
tiary hearing on Galindo’s prosecutorial misconduct claims
involving (a) failing to disclose material evidence, (b) orches-
trating the solicitation from Galindo of details about Lundell’s
death, (c) knowingly introducing false evidence, and (d)
pursuing the case despite being burdened by a conflict of
interest; (2) by denying an evidentiary hearing on Galindo’s
ineffective assistance of counsel claims involving (a) forgoing
a plea disposition, (b) allowing Galindo to assist in locating
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
Lundell’s body, (c) representing Galindo despite a conflict
of interest, (d) failing to subject the Lundell allegation to
meaningful adversarial testing, (e) failing to raise on appeal
objections to jury instructions regarding the aggravating cir-
cumstance that the murder was especially heinous, atrocious,
or cruel or manifested exceptional depravity, (f) failing to
effectively pursue the mitigating circumstances of Galindo’s
youth, remorse, and drug use, and (g) failing to raise on
appeal the denial of a motion to continue to prepare a defense
to the Lundell allegation; and (3) by denying relief for other
alleged violations of Galindo’s constitutional rights involving
(a) Galindo’s age at the time of the offense, (b) Nebraska’s
three-judge sentencing procedure, (c) victim impact state-
ments, and (d) the proportionality of the death sentences.
III. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appellate
court reviews de novo a determination that the defendant failed
to allege sufficient facts to demonstrate a violation of his or her
constitutional rights or that the record and files affirmatively
show that the defendant is entitled to no relief. State v. Lotter,
311 Neb. 878, 976 N.W.2d 721 (2022).
[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law which an appellate
court reviews independently of the lower court’s ruling. Id.
IV. ANALYSIS
1. Overview
Viewed from afar, Galindo’s claims for postconviction relief
are familiar. He generally asserts the district court erred in
denying postconviction relief without first conducting an evi-
dentiary hearing on multiple claims of prosecutorial miscon-
duct, ineffective assistance of counsel, and other alleged vio-
lations of his constitutional rights. But the task of resolving
each discrete claim requires us to work our way through
a web of factual allegations and legal arguments raised in
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315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
his 145-page motion for postconviction relief. Many of those
allegations pertain to what Galindo considers “[t]he most
important contested factual issue in this case”: the Lundell
murder. Brief for appellant at 27. As we have noted, Galindo
was not convicted and sentenced for Lundell’s murder, but evi-
dence of Galindo’s involvement in that crime prior to the bank
robbery led to the jury’s finding of the aggravating circum-
stance that Galindo had a substantial prior history of serious
assaultive or terrorizing criminal activity. See § 29-2523(1)(a).
Prominently featured in this appeal is Galindo’s contention that
without this aggravator, he would not have been sentenced to
death for the bank robbery murders.
We ultimately conclude that the district court did not err in
denying postconviction relief without an evidentiary hearing.
We first dispose of claimed constitutional violations that are
procedurally barred. We then address Galindo’s claim of pros-
ecutorial misconduct by the denial of his right to counsel and
conclude that it was insufficiently alleged. We go on to con-
clude that also insufficiently alleged were Galindo’s claims of
ineffective assistance of counsel regarding an alleged conflict
of interest and a plea disposition. Regarding ineffective assist
ance of counsel claims about mitigators related to Galindo’s
drug use and his age, we determine that the record affirma-
tively shows he is entitled to no postconviction relief. We next
assess Galindo’s remaining claims of ineffective assistance of
counsel and his claims that the State withheld material evi-
dence, and we determine that he cannot make the requisite
showing of prejudice. Finally, we address Galindo’s remaining
claims of prosecutorial misconduct. We conclude that Galindo
has failed to show that his claim of a prosecutorial conflict of
interest entitled him to an evidentiary hearing, because any
such conflict, though worthy of condemnation if true, was
harmless beyond a reasonable doubt. We likewise conclude he
is not entitled to an evidentiary hearing on his claim that the
State knowingly relied on false testimony, because any such
testimony was not material.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
2. General Legal Principles
[3,4] Before turning to Galindo’s specific claims, we briefly
review the general legal principles that govern appeals from
the denial of postconviction relief without an evidentiary
hearing. In Nebraska, postconviction relief is a very narrow
category of relief, available only to remedy prejudicial consti-
tutional violations that render the judgment void or voidable.
State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022). An evi-
dentiary hearing is not required on a motion for postconviction
relief when (1) the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable;
(2) the motion alleges only conclusions of fact or law without
supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief. State v. Lessley,
312 Neb. 316, 978 N.W.2d 620 (2022). “In addition to the
substantive rules governing postconviction relief, there are
procedural rules which can bar postconviction relief regardless
of the merits of a particular claim.” State v. Lotter, 311 Neb. at
887, 976 N.W.2d at 730.
3. Claims Conceded as
Procedurally Barred
We begin by dispensing with several postconviction claims
that are procedurally barred. Galindo’s motion for postconvic-
tion relief claimed that his death sentences involved violations
of his constitutional rights stemming from an alleged absolute
bar on the death penalty due to his chronological age at the
time of the offenses, Nebraska’s three-judge sentencing proce-
dure, victim impact statements in the presentence report, and
the alleged disproportionality of the death sentences. The dis-
trict court denied each of these claims without an evidentiary
hearing. On appeal, Galindo concedes that postconviction
relief for these claims would ordinarily be unavailable because
they were or could have been litigated on direct appeal, but he
nonetheless asks us to review them on the merits. We decline
to do so.
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315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
[5,6] The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first oppor-
tunity. State v. Lessley, supra. We have consistently said that
a motion for postconviction relief cannot be used to secure
review of issues that were known to the defendant and which
were or could have been litigated on direct appeal. Id. Our
review of the record confirms, as Galindo readily admits in his
appellate brief, that the claims listed above were or could have
been litigated on direct appeal. See State v. Galindo, 278 Neb.
599, 774 N.W.2d 190 (2009). Galindo suggests that despite
this, we should review these claims on the merits because they
arise in a capital case involving allegations that his counsel
at trial and on appeal was burdened by a conflict of interest
and rendered other forms of ineffective assistance. Galindo
cites no authority for this position, and we are unpersuaded.
We have previously applied procedural bars in capital cases.
See, e.g., State v. Lotter, supra; State v. Ryan, 257 Neb. 635,
601 N.W.2d 473 (1999). And Galindo has not asserted that his
counsel was ineffective in not raising the claims listed above
on direct appeal.
4. Prosecutorial Misconduct:
Right to Counsel
Once adversary proceedings have commenced against an
individual, that individual has a Sixth Amendment right to
legal representation during interrogation by the government.
Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed.
2d 424 (1977). In a line of decisions beginning with Massiah
v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed.
2d 246 (1964), the U.S. Supreme Court has repeatedly held
that the government violates this right when it deliberately
elicits incriminating statements from the defendant in the
absence of counsel after the defendant has been charged. See,
Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L.
Ed. 2d 364 (1986); Maine v. Moulton, 474 U.S. 159, 106 S.
Ct. 477, 88 L. Ed. 2d 481 (1985); United States v. Henry, 447
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STATE V. GALINDO
Cite as 315 Neb. 1
U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980). This
may occur when information is obtained via a government
informant, but “the Sixth Amendment is not violated when-
ever—by luck or happenstance—the State obtains incriminat-
ing statements from the accused after the right to counsel has
attached.” Maine v. Moulton, 474 U.S. at 176. “[A] defendant
must demonstrate that the [government] and [its] informant
took some action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks.” Kuhlmann v.
Wilson, 477 U.S. at 459. This right to be free from uncoun-
seled interrogation is infringed at the time of the interroga-
tion, not when the incriminating statements are admitted into
evidence, but the deprivation of the right to counsel demands
the remedy of exclusion from the prosecution’s case in chief.
Kansas v. Ventris, 556 U.S. 586, 129 S. Ct. 1841, 173 L. Ed.
2d 801 (2009).
Relying on the Massiah line of decisions, Galindo assigns
that the district court erred in not holding an evidentiary
hearing on his postconviction claim that his right to coun-
sel was violated when the State “orchestrat[ed] the solicita-
tion from Galindo of statements regarding the Lundell death
while Galindo was jailed.” Brief for appellant at 3. Because
Galindo’s postconviction motion either misapplies this right to
counsel doctrine or fails to make sufficient factual allegations
to support one of its elements, we are unconvinced.
In the simplest terms, Galindo’s postconviction motion
claimed that after trial, he learned facts suggesting that tes-
timony by Animas, Lopez, and Abendano about Galindo’s
involvement in the Lundell murder resulted from a plan, put
into motion by the county attorney during Galindo’s pretrial
incarceration, that violated Galindo’s right to counsel. The
details about that alleged plan are rather complicated.
Galindo’s postconviction motion posited that the informants’
testimony in his case arose from deals they had made with
the county attorney to obtain relatively favorable disposi-
tions in their own criminal cases. Galindo alleged, as we have
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315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
generally noted, that the county attorney was involved with a
drug ring that included Jesse Padilla, Lopez, and Abendano,
among others. These three and Animas were incarcerated in the
same facility as Galindo following the bank robbery.
Galindo’s postconviction motion claimed that to facilitate
the informants’ assistance to the county attorney, at vari-
ous times and in various combinations, jail officials housed
the informants with each other, with Galindo, and with oth-
ers who had personal knowledge of the Lundell murder.
According to Galindo, these housing placements both contra-
vened internal jail procedures and, it could be inferred from
this and the drug ring associations, occurred at the direction
of the county attorney. As further support for this inference,
Galindo alleged that in 2017, the jail administrator “became
extremely defensive and agitated” when Galindo’s defense
team asked him about housing placements, and that without
prompting, the jail administrator “emphatically denied” that
the county attorney, whom the jail administrator identified as
a friend, directed the jail administrator to place any particular
inmates together.
Galindo further specifically claimed that according to fed-
eral investigative reports, a fellow inmate of Abendano’s
reported that Abendano had said the county attorney offered
to help with Abendano’s criminal charges if Abendano pro-
vided information about Galindo and Vela and if Abendano
agreed not to disclose to federal authorities his drug-ring
history with the county attorney. Galindo asserted that after
Abendano told police that Galindo admitted he was involved
in the Lundell murder, the county attorney told Sandoval that
the county attorney would be getting “‘good information’”
about Galindo and Vela “‘in the next couple of days.’” Six
days later, Galindo alleged, Lopez told law enforcement that
Galindo had admitted his involvement in Lundell’s death.
Moreover, Galindo’s motion for postconviction relief cited
a confidential witness who reported having observed the
county attorney with a list of people involved with drugs; the
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STATE V. GALINDO
Cite as 315 Neb. 1
county attorney allegedly told the confidential witness that the
people on the list could possibly be used as witnesses against
Galindo and his accomplices.
Galindo’s postconviction motion concluded that as a whole,
these allegations “strongly support[ed] an inference” that the
county attorney encouraged or specifically instructed mul-
tiple jailhouse informants to elicit incriminating statements
from Galindo and/or Vela outside the presence of counsel,
and/or to fabricate false testimony against Galindo regarding
the Lundell murder.
The district court denied postconviction relief for this claim
without an evidentiary hearing.
Now on appeal, Galindo asserts that his factual allegations
regarding the jail cell assignments, in combination with the
motives he attributed to the county attorney and the informants
in the drug ring, warranted an evidentiary hearing. Galindo
argues that the nonconforming cell assignments “simply could
not have occurred by accident or happenstance.” Brief for
appellant at 58. In keeping with his postconviction motion,
he concludes:
These facts support an inference [that the county attor-
ney] intentionally engaged Abendano to elicit incriminat-
ing statements from Galindo. And since Vela had knowl-
edge of how Lundell was killed, Padilla and Abendano’s
placement in Vela’s cell provided them the opportunity to
gain this knowledge from Vela and then elicit (or falsely
attribute) incriminating statements regarding the death
from Galindo.
These allegations clearly warrant an evidentiary hear-
ing regarding whether [the county attorney] utilized
Abendano and Padilla to deliberately elicit incriminat-
ing statements from Vela and to repeat Vela’s statements
to other inmates, . . . so that the other inmates, along
with Abendano, could seek leniency or other reward in
exchange for their testimony.
Id. at 58-59.
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To the extent Galindo claims a violation of his right to
counsel based on Vela’s uncounseled statements, his claim
fails. Sixth Amendment rights are personal. See Pointer v.
Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
Even if Vela made incriminating statements while deprived of
legal representation, Galindo does not have standing to mount
a challenge based on Vela’s right to counsel. See, Jefferson v.
State, 358 Ga. App. 297, 855 S.E.2d 43 (2021); People v. Velez,
155 A.D.2d 708, 548 N.Y.S.2d 272 (1989).
Neither do we believe an evidentiary hearing was required
based on Galindo’s assertion that the county attorney orches-
trated events so that informants would have access to Galindo
to elicit incriminating statements from him or to falsely
attribute incriminating statements to him. Even if we were
to read the constellation of inferences suggested by Galindo
to reveal a plan to obtain incriminating statements from him
in his counsel’s absence, Galindo’s postconviction motion
omits specific factual allegations of an important element of
a Sixth Amendment right to counsel claim: how the state-
ments are obtained once an informant has gained access to
the defendant.
We understand Galindo to rely primarily on United States
v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115
(1980). In Henry, government agents engaged an informant
serving a term in the same jail as several federal prisoners,
including the defendant, who was incarcerated pending trial
on bank robbery charges. Authorities “told [the informant] to
be alert to any statements made by the federal prisoners, but
not to initiate any conversation with or question [the defend
ant] regarding the bank robbery.” Id., 447 U.S. at 266. The
informant and the defendant engaged in “‘some conversa-
tions’” during which the defendant told the informant about
the robbery. Id., 447 U.S. at 271. The informant testified about
these conversations, and the defendant was convicted. The
U.S. Supreme Court held that the government had “‘deliber-
ately elicited’” incriminating statements from the defendant
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within the meaning of Massiah by virtue of the govern-
ment’s “intentionally creating a situation likely to induce [the
defendant] to make incriminating statements.” United States v.
Henry, 447 U.S. at 270, 274. The Henry Court reasoned that
instructions not to question the defendant neither disproved
that the government intended to obtain incriminating state-
ments nor disproved that the government contemplated that its
informant would take affirmative action to obtain incriminat-
ing statements.
As one commentator has articulated:
A . . . question which may be asked about Henry is
whether it extends Massiah so as to include both “active”
and “passive” efforts to obtain incriminating evidence
from a defendant. . . . [T]he majority did not believe it
was dealing with a “passive” type of case. Moreover, the
majority cautioned it was not “called upon to pass on the
situation where an informant is placed in close proximity
but makes no effort to stimulate conversations about the
crime charged.” Yet the majority’s loose language about
the government being barred from “intentionally creat-
ing a situation likely to induce [the defendant] to make
incriminating statements” could be read as covering the
“passive” type of case as well.
2 Wayne R. LaFave et al., Criminal Procedure § 6.4(g) at 774
(4th ed. 2015).
But the U.S. Supreme Court subsequently clarified in
Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S. Ct. 2616, 91 L.
Ed. 2d 364 (1986), another “jail plant” case, that “[a] defend
ant must demonstrate that the [government] and [its] inform
ant took some action, beyond merely listening, that was
designed deliberately to elicit incriminating remarks.” “[T]he
primary concern of the Massiah line of decisions is secret
interrogation by investigatory techniques that are the equiva-
lent of direct police interrogation,” and “a defendant does not
make out a violation of that right simply by showing that an
informant, either through prior arrangement or voluntarily,
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reported his incriminating statements to the police.” Kuhlmann
v. Wilson, 477 U.S. at 459. The Kuhlmann Court held that the
incriminating statements in that case had not been “‘delib-
erately elicited,’” because although the cellmate remarked
that the defendant’s initial statements denying involvement
in the crime “‘didn’t sound too good,’” it was not until after
a visit from a family member who expressed concern about
the defendant’s involvement in a murder that the defendant
changed his story and made incriminating statements to the
cellmate. 477 U.S. at 460.
Galindo argues, apparently relying on Henry, that the alleg-
edly intentional placement of inmates “constitutes an addi-
tional investigative tactic beyond ‘merely listening.’” Brief
for appellant at 58. We cannot agree. Galindo asserts that the
other inmates elicited incriminating statements from him, but
he makes no specific allegations about what techniques the
informants employed that made their efforts active rather than
passive. Claiming that the statements were elicited is merely a
conclusion of fact without supporting facts to show a Massiah
violation and cannot be the basis for an evidentiary hearing.
Because Galindo has not alleged how his interactions with
the informants involved some manner of interrogation beyond
merely listening, he has not alleged facts sufficient to support
this claim.
5. Ineffective Assistance of Counsel:
Conflict of Interest
[7] A conflict of interest which adversely affects a lawyer’s
performance violates the client’s Sixth Amendment right to
effective assistance of counsel. State v. Jackson, 275 Neb. 434,
747 N.W.2d 418 (2008). On appeal, Galindo contends that the
district court erred in denying an evidentiary hearing on his
postconviction claim that his defense counsel was burdened
by a conflict of interest. We determine this claim was insuf-
ficiently alleged.
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Galindo’s postconviction motion alleged that a paralegal for
his trial counsel was romantically involved with an attorney
who represented jailhouse informants. The informants included
Padilla, Lopez, and Abendano. Lopez and Abendano testi-
fied at the aggravation hearing regarding the Lundell murder,
and their charged offenses were unconnected to Galindo’s.
Galindo’s aggravation hearing occurred in December 2003.
Galindo alleged that the romantic relationship between the
paralegal and the attorney spanned from May or June 2004 to
early February 2005.
According to the postconviction motion, the paralegal
actively participated in trial preparation and had access to
all aspects of Galindo’s file, which contained attorney-client
conference notes. This, Galindo claimed, created an “oppor-
tunity” for the paralegal to share the information with “oth-
ers.” Galindo alleged that the paralegal had admitted that she
sometimes shared with the attorney privileged information she
obtained from one or more of her employer’s clients; this infor-
mation suggested the attorney was under investigation. Galindo
alleged the attorney was ultimately convicted on drug charges
due to his involvement with the same drug distribution ring
that included witnesses at Galindo’s aggravation hearing and
the county attorney. Galindo alleged that Abendano had told
a fellow inmate that someone in the drug ring had distributed
methamphetamine to Galindo, who shared it with one of the
bank robbery accomplices.
Galindo’s motion concluded that the paralegal’s involvement
in the case adversely affected his counsel’s performance. The
district court rejected this claim for relief because it lacked
specific facts.
On appeal, although Galindo concedes that the romantic
relationship “may have occurred subsequent to [his] trial,”
he argues that his motion supported a reasonable inference
that the paralegal breached duties of loyalty and confidential-
ity owed to him. Brief for appellant at 70. He contends that
an evidentiary hearing is necessary to address whether the
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paralegal disclosed his confidential communications and trial
strategy to the attorney and whether defense counsel’s employ-
ment of the paralegal otherwise prejudiced Galindo’s right to
effective assistance of counsel.
[8-10] We are not convinced that Galindo’s motion for
postconviction relief made allegations of a conflict of interest
sufficient to justify an evidentiary hearing. The phrase “con-
flict of interest” denotes a situation in which regard for one
duty tends to lead to disregard of another; a conflict of interest
places a defense attorney in a situation inherently conducive to
divided loyalties. State v. Reddick, 230 Neb. 218, 430 N.W.2d
542 (1988). In order to obtain relief in a postconviction action
based upon the alleged conflict of interest of trial counsel, the
defendant must show an actual, as opposed to an imputed,
conflict of interest. State v. Harris, 274 Neb. 40, 735 N.W.2d
774 (2007). A speculative or hypothetical conflict of interest
cannot support overturning a conviction because of ineffective
assistance of counsel. See State v. Vanness, 300 Neb. 159, 912
N.W.2d 736 (2018). See, also, State v. Marchese, 245 Neb.
975, 515 N.W.2d 670 (1994) (mere possibility of lawyer’s
conflict of interest is insufficient to impugn criminal convic-
tion). Similarly, an evidentiary hearing is not required when
the motion for postconviction relief alleges only conclusions
of fact or law. See State v. Cook, 290 Neb. 381, 860 N.W.2d
408 (2015).
While Galindo asserts that the paralegal behaved in a way
we cannot condone, we agree with the district court that
Galindo’s allegation is “short on facts and long on conclusions
and speculation of any actual conflict of interest involving the
paralegal sharing any confidential information about Galindo’s
case with anyone.” Standing alone, Galindo’s assertion that
the paralegal had, at some point, shared information about
a case or cases with an attorney, who represented witnesses
at Galindo’s aggravation hearing in matters unrelated to the
charges against Galindo, about an investigation of that attor-
ney’s role in a drug distribution ring of which Galindo was
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not a member, even if true, does not allege an infringement of
Galindo’s right to effective assistance of counsel. At most, he
alleged the remote possibility of an imputed conflict of inter-
est, not an actual conflict of interest on the part of his counsel
warranting postconviction relief. See State v. Harris, supra.
But see Neb. Ct. R. of Prof. Cond. § 3-501.10, comment 4
(paralegal’s conflict of interest prohibiting involvement in
case is not imputed to attorney). We discern no claim of “any-
thing more than a speculative or hypothetical conflict of inter-
est” on the part of the paralegal. See State v. Sandoval, 280
Neb. 309, 347, 788 N.W.2d 172, 208 (2010).
Because Galindo has failed to allege any facts relating to
this claimed conflict of interest that would render the judgment
void or voidable, we conclude that the district court did not err
in denying him an evidentiary hearing for this claim. See State
v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022).
6. Ineffective Assistance of Counsel:
Plea Disposition
Galindo argues on appeal that the district court erred in
declining to grant an evidentiary hearing on his postconvic-
tion claim that his trial counsel was ineffective for not pursu-
ing a guilty plea, a strategy that Galindo asserted would have
resulted in life sentences for the homicides. Galindo based
this claim in part on Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428, 153 L. Ed. 2d 556 (2002), which effectively invalidated
Nebraska’s statutory capital sentencing procedure that permit-
ted a judicial panel rather than a jury to determine whether
aggravating circumstances existed. Galindo asserted that Ring
created a window of time in his case to enter life-saving pleas
before revised procedures took effect and that his counsel was
ineffective in not seizing the opportunity. As we will explain,
because this claim hinges on the presiding judge’s alleged
misapplication of Ring in another case, Galindo has failed to
assert facts showing that his trial counsel acted ineffectively in
forgoing a plea disposition.
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As we explained in Galindo’s direct appeal, the release of
Ring in 2002 prompted changes to Nebraska’s death penalty
procedure that played a part in Galindo’s case:
Now, as at the time of the bank robbery, a defendant
found guilty of first degree murder can be sentenced to
death only if one of the enumerated aggravating circum-
stances is found. [§ 29-2519.] Without any aggravating
circumstances, the sentence is life imprisonment. [Id.]
The ultimate decision of whether to impose the death pen-
alty when the defendant is found “death eligible” depends
on whether the aggravating circumstances outweigh miti-
gating circumstances, as well as a proportionality review.
[See § 29-2522.] At the time of the bank robbery, the
statutory scheme committed to the judge, and not a jury,
both the capital sentencing factfinding of any aggravating
and mitigating circumstances and the ultimate sentencing
decision. [§ 29-2522.] Approximately 3 months before
the bank robbery took place, however, the U.S. Supreme
Court had concluded in Ring that the Sixth Amendment
entitled capital defendants to a jury determination of any
fact on which the Legislature conditions an increase in
their maximum punishment.
After the robbery, but before Galindo’s trial, the
Legislature enacted [2002 Neb. Laws,] L.B. 1, which did
not change the nature of the statutory aggravating cir-
cumstances that make a defendant death eligible. But, it
provided that the existence of any of these circumstances
must be determined by a jury, instead of a judge, unless
this right is waived by the defendant.
State v. Galindo, 278 Neb. 599, 613-14, 774 N.W.2d 190, 209-
10 (2009). The State’s initial information, charging Galindo
with five counts of first degree murder, among other offenses,
was filed before the Legislature enacted 2002 Neb. Laws,
L.B. 1, and did not seek the death penalty. But when L.B.
1 took effect, the State immediately initiated procedures to
pursue the death penalty by filing an amended information
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with notice of aggravating circumstances. See Neb. Rev. Stat.
§ 29-1603 (Reissue 2008). Galindo was tried and sentenced
accordingly.
In a pretrial motion to quash, Galindo’s counsel argued
there was no enforceable death penalty at the time the crimes
were committed, after Ring and prior to L.B. 1, and that the
death penalty could not be applied retroactively; the judge
who presided over the guilt phase of the proceedings rejected
this argument. Galindo’s counsel made the same argument
before the sentencing panel, again without success. On direct
appeal, we affirmed the sentencing panel’s ruling, finding
no merit to Galindo’s position that there was no death pen-
alty in effect when the crimes were committed. See State v.
Galindo, supra.
Galindo’s postconviction motion now at issue also invoked
Ring, this time in the context of an ineffective assistance of
counsel allegation. The postconviction motion claimed that
Ring and several other factors made the weeks between the
initial information and the enactment of L.B. 1 an opportune
time to enter pleas to avoid the death penalty. Galindo alleged
that during that period, the presiding judge in his case ruled
in an unrelated first degree murder case that, in Galindo’s
words, “based on the decision in Ring[,] the death penalty
could not be applied . . . if sought by the State.” Galindo
asserted that on the same day as that ruling, the county
attorney in Galindo’s case sent a letter to Galindo’s counsel
suggesting the county attorney might not pursue the death
penalty, considering Galindo’s role in the crimes compared
to his accomplices’ roles. Galindo alleged that at that time,
he did not oppose pleading guilty to the charges, for which
there was no feasible defense, and had entrusted his counsel
with the decision whether to do so. Galindo claimed that
although his counsel referred to the presiding judge’s ruling
in the unrelated case in subsequent unidentified pleadings in
Galindo’s case, his counsel did not advise him to plead guilty
or otherwise pursue such pleas. Given all this, Galindo’s
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motion claimed his trial counsel was ineffective in not facili-
tating guilty pleas prior to the enactment of L.B. 1, pleas that
Galindo asserted had a reasonable probability of resulting in
life sentences.
The district court, noting that this court had rejected the
argument that there was no death penalty in effect during the
months prior to L.B. 1, found that Galindo based this postcon-
viction claim on a speculative and legally unviable strategy
and denied relief without an evidentiary hearing. Galindo now
challenges this ruling on appeal.
As the district court observed, we have found no merit
to the contention that between the release of Ring and the
revised procedures in L.B. 1, there was no death penalty in
effect in Nebraska. See State v. Galindo, 278 Neb. 599, 774
N.W.2d 190 (2009). See, also, State v. Vela (Vela II), 297
Neb. 227, 900 N.W.2d 8 (2017); State v. Sandoval, 280 Neb.
309, 788 N.W.2d 172 (2010); State v. Vela (Vela I), 279 Neb.
94, 777 N.W.2d 266 (2010); State v. Mata, 275 Neb. 1, 745
N.W.2d 229 (2008). In so holding, we reasoned that L.B.
1 changed only the procedures for determining whether to
impose the death penalty, rather than the substance, because
L.B. 1 did not alter the quantum of punishment for first
degree murder. See id. In Vela I, we explained that “the death
penalty did not disappear from Nebraska law during the
approximately 5-month period between the decision in Ring
and the enactment of L.B. 1. Before, during, and after that
period, Nebraska statutes provided that the maximum penalty
for first degree murder was death.” 279 Neb. at 109-10, 777
N.W.2d at 282.
In this appeal, Galindo does not dispute that the death pen-
alty remained in effect between the release of Ring and L.B.
1’s enactment, but he asserts that his postconviction claim pre-
sented a different issue:
Galindo’s claim does not depend on whether there was
a death penalty prior to passage of L.B. 1, but rather
whether he received adequate counsel regarding the
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available opportunity to plead guilty in front of a judge
unwilling to impose the death penalty prior to the bill’s
passage, just as another Madison County defendant . . .
did when Galindo’s case was pending.
Brief for appellant at 67. Galindo characterizes such a plea as
a “viable strategy to save his life.” Id. at 68.
[11] Certainly, the right to effective assistance of counsel
extends to the plea context, see, e.g., State v. Blaha, 303
Neb. 415, 929 N.W.2d 494 (2019), but the facts alleged in
Galindo’s motion for postconviction relief do not demonstrate
a violation of this right. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must show that his or her counsel’s performance was defi-
cient and that this deficient performance actually prejudiced
the defendant’s defense. State v. Lessley, 312 Neb. 316, 978
N.W.2d 620 (2022). Galindo’s alleged facts failed to satisfy
either prong of this test.
[12] We do not view counsel’s representation here to be
deficient as alleged by Galindo. To show that counsel’s per-
formance was deficient, the defendant must show it did not
equal that of a lawyer with ordinary training and skill in
criminal law. Id. In other words, the defendant must show
that counsel’s representation fell below an objective standard
of reasonableness. See State v. Wagner, 271 Neb. 253, 710
N.W.2d 627 (2006), citing Strickland v. Washington, supra.
The entire ineffectiveness analysis is viewed with a strong
presumption that counsel’s actions were reasonable. See State
v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021). And we
have said that “trial strategy based on a misunderstanding
of the law is not reasonable.” See State v. Sidzyik, 292 Neb.
263, 269, 871 N.W.2d 803, 808 (2015). Galindo’s allegations
suggest that the presiding judge’s ruling in the unrelated case
was founded on a misapplication of Ring and that his coun-
sel should have pursued the same misapplication in his case
through precisely timed guilty pleas. But it would not have
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been objectively reasonable for Galindo’s trial counsel to
advise Galindo to plead guilty based on the presiding judge’s
mistaken notion that the death penalty could not apply in an
unrelated case, with the expectation that the presiding judge
would make the same ruling in Galindo’s case. Galindo, more-
over, overlooks the consequences of pleading to the charges
that his counsel avoided. Had he entered such pleas, he would
have waived all defenses to the charges, some of which he
later raised in his motion to quash, while forgoing the benefits
of a trial. See State v. Thomas, 311 Neb. 989, 977 N.W.2d
258 (2022). Given these considerations, it is arguable that
entering a plea would have reflected deficient performance by
Galindo’s counsel.
[13] Even if we were to accept that Galindo’s trial counsel
performed deficiently as he contends, Galindo’s ineffective
assistance of counsel claim would still fail because he did
not allege facts that show prejudice resulted. To show preju-
dice under the prejudice component of the Strickland test, the
defendant must demonstrate a reasonable probability that but
for his or her counsel’s deficient performance, the result of
the proceeding would have been different. State v. Ellis, 311
Neb. 862, 975 N.W.2d 530 (2022). A reasonable probability
does not require that it be more likely than not that the defi-
cient performance altered the outcome of the case; rather, the
defendant must show a probability sufficient to undermine
confidence in the outcome. Id. “‘The likelihood of a differ-
ent result must be substantial, not just conceivable.’” State v.
Newman, 310 Neb. 463, 472-73, 966 N.W.2d 860, 869 (2021),
quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770,
178 L. Ed. 2d 624 (2011). To succeed, a claim of prejudice
cannot be merely speculative. See State v. Gibbs, 238 Neb.
268, 470 N.W.2d 558 (1991). See, also, State v. McGurk,
3 Neb. App. 778, 532 N.W.2d 354 (1995). Galindo’s claim
appears to depend on the presiding judge’s continued misap-
plication of Ring, but even assuming the presiding judge mis-
applied Ring in the unrelated case as Galindo suggests, we do
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not discern a reasonable probability that the presiding judge
would have continued in such error. In fact, a few months
after the allegedly ideal window to plea had passed, the presid-
ing judge’s ruling on Galindo’s motion to quash rejected the
notion that Ring precluded the application of the death penalty
in Galindo’s case. Rather than alleging facts showing a reason-
able probability that guilty pleas would have resulted in life
sentences, Galindo can offer only speculation.
For these reasons, we conclude that Galindo did not allege
facts sufficient to support this claim of ineffective assistance
of counsel.
7. Ineffective Assistance of Counsel:
Drug Use as Mitigator
Galindo assigns that the district court wrongly denied him
an evidentiary hearing on his claim that his trial counsel
provided ineffective assistance during the mitigation hearing
on the issue of his drug use. We reject this claim because
the record affirmatively shows that Galindo is entitled to
no relief. See State v. Lessley, 312 Neb. 316, 978 N.W.2d
620 (2022).
At the mitigation hearing, Galindo’s counsel presented
evidence about Galindo’s methamphetamine use during the
months preceding the deadly bank robbery. This included the
testimony of Claudia Solis, who had used methamphetamine
with Galindo at Barritt’s residence. She testified she had seen
Galindo use methamphetamine weekly at Barritt’s home during
a period beginning about 4 months before the bank robbery
and ending about 1½ months before the bank robbery. She
testified that between that period and the bank robbery, her
contact with Galindo increased and his methamphetamine use
continued, but she did not observe Galindo during the days
immediately preceding the bank robbery.
Solis testified about the effect methamphetamine had on
Galindo. Solis had observed Galindo to be awake several days
at a time due to his methamphetamine use. Solis recounted
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that they would not go out when they used methamphetamine
and that Galindo would play video games and talk. Upon
questioning by the State, she affirmed that when Galindo used
methamphetamine, he became “mellow, happy, giggly,” but
she also testified to his “[l]ooking like when they would look
out the window constantly or any little noise.” Solis recalled
occasions when Barritt needed Galindo to care for their chil-
dren after he had been up all night using methamphetamine,
and “he was just antsy, he couldn’t do it.” Solis denied seeing
Galindo get “totally out of control” due to methamphetamine
use. She testified that Barritt told her about a time Galindo
held a knife to Barritt’s throat, but Solis did not know whether
Galindo was under the influence of methamphetamine at the
time. Galindo’s counsel also presented the deposition tes-
timony of Barritt, in which she said that Galindo became
physically abusive toward her after he became a methamphet-
amine user.
Galindo’s counsel called Carlos Flores to testify. He stated
that he used methamphetamine with Galindo almost daily
during the weeks preceding the bank robbery. He testified
that on more than one occasion, that use involved staying
up for 2 or 3 days at a time, or perhaps more, continuously
consuming methamphetamine. Flores testified that he was not
with Galindo during the 2 or 3 days immediately prior to the
bank robbery.
Marco Quijano testified on behalf of the defense that from
1998 to 2001, he binged on methamphetamine with Galindo
nearly every weekend. Quijano recalled that on approximately
five occasions, he and Galindo stayed up continuously using
methamphetamine for 6 days.
Galindo’s counsel presented the deposition testimony of
Destiny Williams. Williams identified Galindo as a heavy meth-
amphetamine user and an alcoholic. She testified to speaking
with Galindo after the bank robbery and to Galindo’s saying he
was “fucked up” or “[m]essed up” during the robbery and did
not remember much about it.
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Defense counsel also presented expert testimony by Dr.
Alex Stalcup, the medical director of a drug treatment cen-
ter. Stalcup reviewed reports supplied to him by a mitigation
specialist and was present for the testimony of Solis, Flores,
and Quijano. Based on all this, he opined that at the time of
the bank robbery, Galindo was a methamphetamine addict
who was under the influence of the drug and sleep deprived.
He explained that as an addict, Galindo’s drug use was out of
control and his executive functioning and ability to reason,
reflect, weigh consequences, and consider right and wrong
were compromised.
Galindo’s counsel elicited testimony from Stalcup that meth-
amphetamine users can become fearful, paranoid, and hyper-
vigilant and may experience the illusion that they are brilliant
and functioning when in fact they are chaotic. He testified that
once binge behavior is established, as it had been for Galindo
based on others’ testimony, it becomes the predominant pattern
of use of a methamphetamine addict. Galindo’s counsel pre-
sented the telephone records from the residence where Galindo
was staying before the bank robbery, and they indicated late-
night telephone calls from the residence during the 2 or 3 days
prior to the bank robbery. According to Stalcup, this, along
with testimony that Galindo had a ready supply of metham-
phetamine, supported his opinion that Galindo was awake dur-
ing that period, using methamphetamine.
Stalcup testified that the fact that Galindo engaged in
planning and preparation for the bank robbery strengthened
his opinion because methamphetamine addicts are capable
of spending days making a detailed plan. He testified that
Galindo’s firing of multiple gunshots during the bank robbery
was consistent with someone in a frightened state. Stalcup
acknowledged that he was not aware of reports that Galindo
was cooperative and appeared rational after his arrest, but
Stalcup testified that this would not be inconsistent with
Galindo’s having used methamphetamine for several days
before the bank robbery, noting that behavior can be affected
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by the level of environmental stimulation. He explained that
if the ambient stimulation is relatively low, an individual with
methamphetamine intoxication can maintain linear and coher-
ent thought.
The State presented the testimony of several law enforce-
ment officers who observed that Galindo did not appear to be
on drugs when he was arrested a few hours after the bank rob-
bery or during the subsequent days.
The sentencing panel concluded that Galindo’s drug use
did not impair his ability to appreciate the wrongfulness of his
conduct or his ability to conform his conduct to the require-
ments of the law, and the panel therefore did not apply the
statutory mitigating circumstance set forth in § 29-2523(2)(g).
In so finding, it explicitly discredited Stalcup’s opinion. The
sentencing panel referred to the State’s evidence that Galindo
helped plan the bank robbery and took deliberate action while
carrying it out and fleeing. It also noted that the law enforce-
ment officers who interacted with Galindo after his arrest
testified that Galindo exhibited normal behavior with no signs
of impairment. The sentencing panel’s order did not mention
Galindo’s drug use in discussing nonstatutory mitigating cir-
cumstances; nor did it mention Solis’ testimony that Barritt
had told her Galindo had held a knife to Barritt’s throat.
Regarding drug use, Galindo’s postconviction motion
asserted that his counsel was ineffective in conducting an
incomplete mitigation investigation. Due to this allegedly
incomplete investigation, Galindo claimed, his counsel failed
to inform Stalcup about reports of various law enforcement
officers that Galindo did not appear to be under the influence
of drugs at the time of his arrest or in the days that followed.
Galindo asserted that because of this failure to prepare Stalcup,
the sentencing panel discredited his opinion. Galindo further
identified unnamed witnesses who had observed Galindo under
the influence of methamphetamine during the weeks and days
immediately before the bank robbery, and he asserted that a
proper investigation would have uncovered these witnesses.
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Galindo’s motion also claimed that his counsel was inef-
fective in calling Solis, because her testimony that metham-
phetamine had a mellowing effect on Galindo contradicted
Stalcup’s testimony that people under the influence of meth-
amphetamine can be hypervigilant and aggressive and have an
exaggerated sense of fear. Galindo additionally asserted that
Solis’ testimony about Barritt’s statement that Galindo had held
a knife to Barritt’s throat provided further damaging informa-
tion about Galindo’s past violent behavior. Galindo concluded
that if this alleged deficient performance had not occurred,
there was a reasonable “possibility” that the sentencing panel
would have considered Galindo’s drug use as a statutory or
nonstatutory mitigating circumstance.
The district court found that counsel’s performance was not
deficient and that Galindo had not suffered prejudice.
Now on appeal, Galindo argues that his counsel inad-
equately investigated the issue of drug use and addiction and
failed to interview witnesses who had observed Galindo at
the time of his arrest. Due to this, Galindo contends, Stalcup
was unaware that numerous law enforcement officers reported
that Galindo did not appear to be under the influence of any
drugs around the time of his arrest. The record, however, dem-
onstrates that Galindo’s counsel did not perform deficiently.
Faced with a substantial factual record of Galindo’s planning
of, preparation for, and participation in the bank robbery and
the flight afterward, Galindo’s counsel elicited testimony from
Stalcup that Galindo was a methamphetamine addict and that
his actions during the robbery were consistent with those
of someone intoxicated by the drug. Although reports about
Galindo’s behavior around the time of his arrest were not
provided to Stalcup, Galindo’s counsel elicited Stalcup’s tes-
timony that even if Galindo appeared cooperative and rational
at that time, such behavior could be consistent with the influ-
ence of methamphetamine. The sentencing panel simply did
not accept Stalcup’s explanation of Galindo’s behavior. We
conclude that defense counsel’s approach did not fall below
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an objective standard of reasonableness such that it was defi-
cient. See State v. Wagner, 271 Neb. 253, 710 N.W.2d 627
(2006), citing Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984).
Galindo further asserts that his counsel’s failure to inves-
tigate other potential witnesses resulted in counsel’s instead
calling Solis, whose testimony that methamphetamine had a
mellowing effect on Galindo was “inconsistent” with Stalcup’s
opinions. Brief for appellant at 91. Our reading of the record
reveals no such inconsistency and therefore no deficient per-
formance. The range of symptoms of methamphetamine intoxi-
cation identified by Stalcup included appearing to be rational
and cooperative when ambient stimulation is low, and Solis
testified that she observed Galindo using methamphetamine at
Barritt’s home. Moreover, Solis also suggested that metham-
phetamine use left Galindo “[l]ooking like when they would
look out the window constantly or any little noise” and too
“antsy” to care for his children, which was consistent with
other possible symptoms of methamphetamine intoxication
described by Stalcup.
Finally, Galindo contends that ineffective assistance of
counsel resulted in Solis’ testimony that Barritt had told her
that Galindo had previously held a knife to Barritt’s throat.
According to Galindo, an adequate investigation would have
revealed Solis’ knowledge of Barritt’s allegation and led coun-
sel not to call Solis as a witness. We disagree that Galindo’s
counsel performed deficiently in this regard. Based on
Barritt’s deposition testimony, Galindo’s counsel was already
aware that Galindo had perpetrated domestic abuse, and while
Solis’ testimony did add a single violent act to a significant
record of other violent acts perpetrated by Galindo, it, along
with Barritt’s testimony, also tended to link Galindo’s vio-
lence to his methamphetamine use. Establishing this link was
the purpose of Solis’ testimony and had the potential to sup-
port Galindo’s drug use as a mitigating circumstance, a ben-
efit that conceivably outweighed any risk of attributing more
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violence to Galindo. If, indeed, Galindo’s counsel did forgo
investigating Solis’ perception of Galindo’s relationship with
Barritt, the decision was objectively reasonable.
We are not persuaded that Galindo has alleged instances of
deficient performance related to Galindo’s drug use. Rather,
we discern defense counsel’s reasonable efforts to connect
Galindo’s methamphetamine use and addiction to his actions
on the day of the fatal bank robbery. Therefore, the district
court did not err in rejecting Galindo’s request for an eviden-
tiary hearing on this alleged instance of ineffective assistance
of counsel. See State v. Ellis, 311 Neb. 862, 975 N.W.2d
530 (2022).
8. Ineffective Assistance of Counsel:
Mitigators Involving Age
(a) Age-Related Brain Development
as Nonstatutory Mitigator
Galindo was 21 years old at the time of the charged homi-
cides. At the mitigation hearing, Galindo’s counsel presented
the testimony of educators and relatives who had observed
that he was immature for his age and easily influenced by oth-
ers, including the more mature, charistmatic, and intimidating
Sandoval. Galindo’s counsel also engaged a clinical neuro-
psychologist to examine Galindo and presented that expert’s
testimony about Galindo’s level of cognitive functioning. The
expert’s assessment compared Galindo with other individuals
in his age group with a similar level of education. Regarding
Galindo’s maturity level and intellect, the expert testified that
Galindo showed signs of “cognitive immaturity” and had an
elevated risk of undue influence by others because of his
“dampened intellect.” The expert also opined that Galindo’s
language and executive skills, viewed in the context of his
borderline to low-average reasoning skills, affected his ability
to make appropriate judgments. Asked about Galindo’s “prog-
nosis,” the expert testified that Galindo was still a “young
individual” and that young individuals have a “greater chance
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for change” than middle-aged adults. The sentencing panel did
not find Galindo’s age, cognitive function, or cognitive devel-
opment to be mitigating circumstances in any way.
Galindo’s motion for postconviction relief cited scientific
studies demonstrating that regions of the brain that govern
risk awareness and the ability to control impulses do not fully
develop until a person’s midtwenties. He claimed that his coun-
sel provided ineffective assistance at the mitigation hearing
in failing to solicit and present evidence about the relevance
of Galindo’s characteristics based on his age-related brain
development.
On appeal, Galindo assigns that the district court erred in
denying an evidentiary hearing on this claim of ineffective
assistance of counsel. According to Galindo, because his age
is an aspect of his character, its potential as a mitigating cir-
cumstance should have been obvious to his counsel. Therefore,
he asserts his counsel was deficient in not eliciting opinions
about Galindo’s age and about how his age-related character-
istics influenced his culpability. Had counsel done so, Galindo
believes the sentencing panel would have considered his age
and concluded that the balance of aggravating and mitigating
circumstances did not warrant death sentences. We do not share
Galindo’s view.
Galindo cites U.S. Supreme Court authority that a sentenc-
ing panel may not exclude relevant mitigating evidence from
consideration, see Eddings v. Oklahoma, 455 U.S. 104, 106
S. Ct. 869, 71 L. Ed. 2d 1 (1982), and that a defendant’s age
is one of the individualized mitigating circumstances that the
sentencing panel must be allowed to consider, see Stanford
v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d
306 (1989), abrogated on other grounds, Roper v. Simmons,
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). He
further points out that in Roper, the U.S. Supreme court held
that execution of individuals who were under the age of 18 at
the time of their capital crimes is prohibited by the 8th and
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14th Amendments. Roper noted research on the differences
in the juvenile brain, as compared to the adult brain, to sup-
port its holding.
Relying on this authority, Galindo essentially claims that
his counsel should have presented generalized evidence of the
brain development of persons in their early twenties relative
to the brain development of adults whose brains have reached
full maturity. While it does not appear Galindo’s counsel pre-
sented the issue in this way, his counsel did put on abundant
personalized evidence about Galindo’s age-related character-
istics and development. This included expert evidence that
compared Galindo’s cognitive functioning to that of other
individuals his age and concluded that Galindo’s specific
characteristics rendered him more at risk of undue influence
by others and diminished his ability to make appropriate
judgments. It also included testimony by individuals who had
personally observed Galindo over the years and described him
as immature compared to his same-aged peers and easily influ-
enced. We recognize the distinction between what was pre-
sented and what Galindo says ought to have been, but we do
not agree that it amounts to deficient performance. Galindo’s
counsel could have reasonably decided that specific evidence
about Galindo’s maturity would equal or exceed the benefits
of presenting generalized studies. The record demonstrates
that Galindo is entitled to no relief on this claim, because his
counsel’s treatment of the issue equaled that of a lawyer with
ordinary training and skill in criminal law. See State v. Lessley,
312 Neb. 316, 978 N.W.2d 620 (2022). See, also, State v.
Wagner, 271 Neb. 253, 710 N.W.2d 627 (2006).
(b) Chronological Age as
Statutory Mitigator
As we have noted, Galindo was convicted of homicides
committed when he was 21 years old. In sentencing Galindo,
the panel declined to consider his chronological age as a
statutory mitigating circumstance under § 29-2523(2)(d).
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The panel explained that State v. Lotter, 255 Neb. 456, 586
N.W.2d 591 (1998), modified on denial of rehearing 255 Neb.
889, 587 N.W.2d 673 (1999), had interpreted this statutory
mitigator to refer only to a person of advanced years where
senility may be involved. Galindo’s counsel did not challenge
this finding on direct appeal, and Galindo’s postconviction
motion asserted this was ineffective assistance. In this appeal,
Galindo assigns that the district court erred in not holding an
evidentiary hearing on his postconviction claim that his appel-
late counsel was ineffective in failing to raise the sentenc-
ing panel’s explicit refusal to consider youth as a mitigating
circumstance. Because we are not persuaded that Galindo’s
appellate counsel performed deficiently in this regard, this
claim fails.
As it did when Galindo was sentenced, § 29-2523(2)(d)
designates “[t]he age of the defendant at the time of the
crime” as a statutory mitigating circumstance. In Lotter, we
rejected the notion that this language applied to any capital
defendant with an ascertainable age. See § 29-2523(2)(d). We
cited our earlier determination in State v. Simants, 197 Neb.
549, 250 N.W.2d 881 (1977), disapproved on other grounds,
State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990), that
§ 29-2523(2)(d) refers only to a child of tender age, a juve-
nile, or a person of advanced years, where senility may be
involved. We recognized that after Simants was decided, the
Legislature absolutely prohibited the imposition of the death
penalty on anyone under the age of 18 at the time the crime
was committed. See Neb. Rev. Stat. § 28-105.01 (Reissue
2016). We explained that § 28-105.01 narrowed the appli-
cation of the mitigating circumstance in § 29-2523(2)(d) to
persons of advanced years. We concluded that only a capital
defendant who was a person of advanced years at the time of
the homicide could receive the benefit of this statutory miti-
gating circumstance.
On appeal, Galindo argues that the sentencing panel’s reli-
ance on Lotter was “clearly erroneous.” Brief for appellant
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at 88. Again, he points to subsequent U.S. Supreme Court
decisions in “Eddings, . . . Stanford[, and] Roper” for sup-
port. Id. at 87. See, Roper v. Simmons, 543 U.S. 551, 125 S.
Ct. 1183, 161 L. Ed. 2d 1 (2005) (execution of individuals
under age of 18 at time of capital crimes is prohibited by 8th
and 14th Amendments); Stanford v. Kentucky, 492 U.S. 361,
109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989) (defendant’s age is
one of individualized mitigating circumstances that sentencing
panel must be allowed to consider); and Eddings v. Oklahoma,
455 U.S. 104, 106 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (sentenc-
ing panel may not exclude relevant mitigating evidence from
consideration). Galindo contends that the sentencing panel con-
travened this authority when it explicitly refused to consider
Galindo’s age as a statutory mitigating circumstance under
§ 29-2523(2)(d).
Galindo seems to take the position that in declining to apply
§ 29-2523(2)(d) to him, the sentencing panel concluded that
it could not consider his age at all. We disagree. The sentenc-
ing panel correctly read Lotter in deciding that the mitigating
circumstance in § 29-2523(2)(d) did not exist in Galindo’s case
because he was not a person of advanced years. And contrary
to Galindo’s argument, Lotter does not preclude the sentenc-
ing panel from using a capital defendant’s age or related
considerations as nonstatutory mitigating circumstances. See
§ 29-2521(3) (allowing for presentation of any relevant miti-
gating circumstances, including, but not limited to, statutory
mitigators). See, also, State v. Gales, 269 Neb. 443, 694
N.W.2d 124 (2005) (finding procedure in § 29-2521(3) pro-
vides constitutionally sufficient opportunity to adduce evidence
relevant to mitigation).
Based on the foregoing, we conclude that the record shows
Galindo is not entitled to relief on his claim that his appellate
counsel performed deficiently in not opposing the sentencing
panel’s treatment of § 29-2523(2)(d). See State v. Ellis, 311
Neb. 862, 975 N.W.2d 530 (2022).
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9. Brady Withholding Claims and
Remaining Claims of Ineffective
Assistance of Counsel
Most of Galindo’s remaining claims assert additional
instances of ineffective assistance of counsel and that the prose-
cution committed violations under Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Galindo contends
that these constitutional violations underlie the jury’s findings
that the statutory aggravating circumstances in § 29-2523(1)(a)
and (d) apply in his case and the sentencing panel’s finding that
the nonstatutory mitigating circumstance of remorse does not,
such that the legal basis for his death sentences is called into
question. Galindo believes that these claims, taken individually
or together, merit an evidentiary hearing.
We can conceive of various reasons why some of these
claims may fail, but there is one shortcoming that they all have
in common. As we will explain in more detail, each of these
claims require Galindo to show that he suffered prejudice, and
our inquiry for each is fundamentally the same: whether there
is a reasonable probability that, had the offending conduct not
occurred, the result of the proceeding would have been differ-
ent. See, State v. Ellis, supra (analyzing ineffective assistance
of counsel claim); State v. Harris, 296 Neb. 317, 893 N.W.2d
440 (2017) (summarizing analysis for Brady claims). Applying
this standard below, we conclude that even if § 29-2523(1)(a)
and (d) were removed from consideration and the nonstatu-
tory mitigating circumstance of remorse were added, there is
not a reasonable probability that the result of the proceeding
would have been different—that is, that Galindo would not
have been sentenced to death. Therefore, the district court did
not err in denying Galindo an evidentiary hearing on any of
these claims.
(a) Disputed Aggravating and
Mitigating Circumstances
For the sake of completeness, we briefly describe the
Brady and ineffective assistance of counsel claims by which
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Galindo challenges the application of the statutory aggravat-
ing circumstances in § 29-2523(1)(a) and (d) and the sentenc-
ing panel’s finding that the nonstatutory mitigating circum-
stance of remorse does not apply.
(i) Substantial Prior History of Serious Assaultive
or Terrorizing Criminal Activity Under
§ 29-2523(1)(a) Due to Lundell Murder
a. Brady Claims
On appeal, Galindo challenges the district court’s denial of
an evidentiary hearing on his postconviction claims that the
State violated its duty to disclose under Brady v. Maryland,
supra, and its progeny. This claim rests on various allegations
that the prosecution failed to disclose information prior to
trial and also rebuffed postconviction counsel’s efforts to dis-
cover such information during postconviction proceedings. As
explained below, all of the allegedly withheld materials involve
evidence supporting the § 29-2523(1)(a) aggravator based on
the Lundell murder.
Galindo makes several arguments that pertain to the cred-
ibility of Lopez and Abendano, who testified about Galindo’s
involvement in the Lundell murder. He contends that he was
entitled to an evidentiary hearing on his postconviction claim
that the State withheld evidence that Lopez and Abendano
were protected by the county attorney as members of a drug
ring. Galindo posits that this evidence would have shown that
Lopez and Abendano were “indebted” to the county attor-
ney and that had the jury been aware of this indebtedness, it
would have reached a different result; that is, the jury would
not have found their testimony about the Lundell murder
credible. Brief for appellant at 49. Galindo further asserts
that “independent of the claims regarding [the county attor-
ney’s] alleged participation in a drug conspiracy,” an eviden-
tiary hearing is required on his postconviction claim that the
county attorney withheld evidence that Abendano sold a large
quantity of methamphetamine to Lopez. Id. at 47. According
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to Galindo, this association called into question Abendano’s
and Lopez’ credibility and motivations for testifying against
Galindo regarding the Lundell murder.
Galindo makes other Brady arguments that go to the cred-
ibility of testimony regarding the Lundell murder. Also “inde-
pendent” of his allegations that the county attorney was
involved in a drug ring, Galindo contends that an evidentiary
hearing is required for his claim that the State failed to dis-
close Abendano’s status as an informant. Id. at 50. Galindo
additionally argues that evidence of inducements provided to
Abendano in exchange for his testimony was not disclosed to
him. And Galindo makes similar arguments concerning Kristi
Petzold, whose testimony provided circumstantial evidence
linking Galindo to the disposal of Lundell’s body. Galindo
further asserts that an evidentiary hearing is warranted on
his claim that the State withheld evidence of inducements
provided to Barritt in exchange for information about the
Lundell murder.
Galindo acknowledges that his Brady claim regarding the
testimony of Trista Wiest goes directly to the aggravating
circumstance based on Lundell’s murder. Wiest testified at
the aggravation hearing that she loaned her car to Sandoval
around the time of Lundell’s death, suggesting that the car
was used to dispose of Lundell’s body. Galindo argues that
an evidentiary hearing was required on his postconviction
claim that the State withheld evidence regarding the search
and forensic testing of the car’s trunk for trace evidence of
Lundell’s body.
Finally, Galindo claims that he is entitled to an eviden-
tiary hearing on his postconviction claim that the State com-
mitted ongoing Brady violations when it did not disclose
information Galindo requested to prepare his postconviction
motion regarding the Lundell evidence. We are not certain
that Brady provides the proper framework for this claim. See
District Attorney’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52, 69, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009)
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(finding Brady was “wrong framework” for claim based on
failure of State to turn over DNA evidence for postconviction
proceeding, reasoning Brady is a “trial right” and movant had
“already been found guilty at a fair trial”). But even if it does,
as we explain below, Galindo cannot meet the materiality stan-
dard of Brady.
(b) Ineffective Assistance of
Counsel Claims
Several of Galindo’s remaining claims of ineffective assist
ance of counsel relate to the § 29-2523(1)(a) aggravator pre-
mised on the Lundell murder.
In this regard, Galindo takes issue with his trial counsel’s
performance. First, he assigns that the district court erred in
not allowing an evidentiary hearing on his postconviction
claim that his trial counsel was ineffective in allowing him to
waive his privilege against self-incrimination when he assisted
law enforcement in locating Lundell’s body. Second, Galindo
assigns that the district court erred in denying him an eviden-
tiary hearing on his postconviction claim that his counsel was
ineffective in several instances by not mounting a meaningful
defense to the State’s case regarding the (1)(a) aggravator.
Galindo suggests that he suffered prejudice as a result of these
alleged instances of deficient performance.
Regarding his appellate counsel, Galindo assigns and argues
that his counsel on direct appeal was ineffective in failing to
argue Galindo’s rights were violated by the district court’s
denial of a pretrial motion to continue. He asserts that without
the continuance, his counsel was unprepared to defend him
against the (1)(a) aggravator.
(ii) Especially Heinous, Atrocious, or Cruel, or
Manifested Exceptional Depravity by Ordinary
Standards of Morality and Intelligence
Under § 29-2523(1)(d)
On appeal, Galindo assigns that the district court erred
in not granting an evidentiary hearing on his postconviction
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motion’s claim that his counsel was ineffective in failing to
appeal based on his objections to jury instructions for the
§ 29-2523(1)(d) aggravator, which applies if “[t]he murder
was especially heinous, atrocious, [or] cruel, or manifested
exceptional depravity by ordinary standards of morality and
intelligence.” See State v. Torres, 283 Neb. 142, 812 N.W.2d
213 (2012). Galindo essentially asserts in this appeal that the
instruction was unconstitutionally vague and failed to suit-
ably direct and limit the discretion of the sentencing body. He
alleges that had the matter been raised on direct appeal, this
court would have found that the instruction was erroneous and
ordered a new aggravation hearing.
(iii) Nonstatutory Mitigating
Circumstance of Remorse
Galindo’s appellate brief assigns that the district court erred
in rejecting his request for an evidentiary hearing on his post-
conviction claim about remorse. He contends that although
his counsel argued to the sentencing panel that he had “‘real
remorse,’” his counsel rendered ineffective assistance by fail-
ing to present any evidence of expressions of remorse Galindo
made to multiple people. Galindo’s brief cites the following
specific allegations from his postconviction motion.
Galindo’s motion asserted that Lopez, who was incarcer-
ated with Galindo after the bank robbery, testified during a
pretrial deposition that Galindo would tremble, shake, and cry
while anguishing over the bank robbery and that other inmates
would sing him to sleep at night so that he would stop crying.
According to Galindo’s postconviction motion, Lopez also
said that Galindo acknowledged that what he had done was
wrong and cried every time his parents and children visited
him. Galindo’s motion also alleged Abendano testified at a
pretrial deposition that Galindo said he very much regretted
the bank robbery and that whenever Galindo recalled it, he
became serious and started crying. Galindo’s motion further
contended that a jail administrator told a defense investigator
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that Galindo had expressed remorse about the bank robbery
to him and a deputy. Finally, Galindo’s motion noted that his
mother reported that he was extremely distraught over his role
in the bank robbery.
According to Galindo, but for his counsel’s deficient per-
formance in not presenting this evidence of remorse, there is
a reasonable probability that the outcome of the sentencing
proceeding would have been different, especially given that the
sentencing panel explicitly relied on Galindo’s apparent lack
of remorse to counterbalance the mitigating circumstance of
Galindo’s assistance in locating Lundell’s body.
We take this opportunity to note that the presentence report
that was before the sentencing panel for consideration sug-
gested that at times, Galindo showed a lack of remorse. The
presentence report reflects that Animas, who was incarcerated
with Galindo after the bank robbery, told police that Galindo
was calm when he talked about the bank robbery, but would
get emotional when he talked about his girlfriend and say he
“regrets doing this.” However, Animas also said Galindo was
“not bothered” by the murders and would make jokes about
them and “crack up laughing.” For example, Animas said
that Galindo once saw a shadow near their cell and joked that
maybe it was the people they killed coming back to haunt
them. Animas reported that Galindo said he anticipated serving
25 years in prison and being in good physical shape upon his
release because he would work out. However, in an interview
with police included in the presentence report, Abendano,
another fellow inmate of Galindo’s, said that Galindo acted
as if he was sorry for the bank robbery and sad for what he
had done.
(b) Analytical Framework
The rudimentary principles of ineffective assistance of coun-
sel and Brady violations are central to resolving most of
Galindo’s remaining claims.
[14] A proper ineffective assistance of counsel claim alleges
a violation of the fundamental constitutional right to a fair
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trial. State v. Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022).
See, also, Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237,
152 L. Ed. 2d 291 (2002) (this right has been accorded not
for its own sake, but because of its effect on accused’s abil-
ity to receive fair trial). We have already recited the necessary
components of this claim, but they bear repeating here. To
prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. State
v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). To show
prejudice under the prejudice component of the Strickland test,
the defendant must demonstrate a reasonable probability that
but for his or her counsel’s deficient performance, the result
of the proceeding would have been different. State v. Ellis,
311 Neb. 862, 975 N.W.2d 530 (2022). A reasonable prob-
ability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather,
the defendant must show a probability sufficient to undermine
confidence in the outcome. Id. “‘The likelihood of a differ-
ent result must be substantial, not just conceivable.’” State v.
Newman, 310 Neb. 463, 472-73, 966 N.W.2d 860, 869 (2021),
quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770,
178 L. Ed. 2d 624 (2011).
A functionally identical prejudice analysis is at play in
assessing a claim under Brady and its progeny. Such a claim
must allege that due process has been violated because the
prosecution has failed to disclose favorable evidence that is
material to guilt or punishment. See State v. Harris, 296 Neb.
317, 893 N.W.2d 440 (2017). In United States v. Bagley, 473
U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), the
U.S. Supreme Court adopted the standard of materiality for
all claims of prosecutorial suppression of favorable mate-
rial evidence that it had relied on in Strickland for claims of
ineffective assistance of counsel: “The evidence is material
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only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different.” The claimant need not show that
acquittal was more likely than not had the evidence been dis-
closed. See Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555,
131 L. Ed. 2d 490 (1995). Rather, “[a] ‘reasonable probability’
of a different result is . . . shown when the government’s evi-
dentiary suppression ‘undermines confidence in the outcome of
the trial.’” Id., 514 U.S. at 434. The claimant must show that
“the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence
in the verdict.” Id., 514 U.S. at 435.
Given these standards, our examination of Galindo’s remain-
ing claims of ineffective assistance of counsel and Brady
violations begins and ends with a prejudice analysis. Even if
Galindo can show that his counsel performed deficiently as
he has alleged, if he was not prejudiced by that conduct, his
ineffective assistance of counsel claims fail. Likewise, even if
Galindo has alleged facts showing that the prosecution with-
held favorable evidence from him, if it did not result in preju-
dice, his Brady claims fail. To analyze prejudice, our task for
both types of claims is to decide whether there is a reasonable
probability that, had the offending conduct not occurred, the
result of the proceeding would have been different. That is,
for Galindo to prevail, we must conclude that his allegations,
if true, undermine confidence in the outcome: the imposition
of death sentences. Galindo suggests that these claimed trans-
gressions led to the application of the statutory aggravating
circumstances in § 29-2523(1)(a) and (d) and to the omission
of the nonstatutory mitigating circumstance of remorse. But
even if Galindo is correct, if we find there is no reasonable
probability he would not have been sentenced to death absent
the alleged deficient performance and failures to disclose evi-
dence, he has not shown prejudice and his ineffective assist
ance of counsel claims and Brady claims are not grounds for
an evidentiary hearing.
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For this reason, for the sake of analysis, we take as
true Galindo’s remaining allegations that his counsel per-
formed deficiently and his allegations that the State withheld
evidence; we omit the purportedly offending aggravating
circumstances from our consideration, add the mitigating
circumstance advanced by Galindo, and assess the remain-
ing aggravators against the remaining mitigators to decide
whether there is a reasonable probability that they would
have resulted in death sentences. See, e.g., Sears v. Upton,
561 U.S. 945, 130 S. Ct. 3259, 177 L. Ed. 2d 1025 (2010) (to
evaluate probability of different outcome under Strickland,
court considers totality of available mitigation evidence and
aggravation evidence); Wiggins v. Smith, 539 U.S. 510, 534,
123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (when assess-
ing prejudice resulting from alleged ineffective assistance of
counsel at penalty phase of capital trial, court “reweigh[s]”
evidence in aggravation against totality of available mitigat-
ing evidence); Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984) (considering how omitted
evidence would have altered sentencing profile in capital case
and whether it would have changed conclusion that aggravat-
ing circumstances outweighed mitigating circumstances). See
§ 29-2522(1) and (2). And in Nebraska, this analysis includes
the additional step of considering whether there is a reason-
able probability that the sentencing panel would have found
death sentences would not be excessive or disproportion-
ate compared to the penalty imposed in similar cases. See
§ 29-2522(3).
To the extent that Galindo characterizes this framing of the
matter as a flawed or impermissible harmless error analysis,
he misunderstands the nature of the errors he has alleged.
For both ineffective assistance of counsel and Brady claims,
“the requirement of showing prejudice . . . stems from the
very definition of the right at issue; it is not a matter of
showing that the violation was harmless, but of showing that
a violation of the right . . . occurred.” United States v.
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Gonzalez-Lopez, 548 U.S. 140, 150, 126 S. Ct. 2557, 165 L.
Ed. 2d 409 (2006) (emphasis in original) (discussing ineffec-
tive assistance of counsel). We now proceed to explain why
Galindo failed to make factual allegations that support a find-
ing that any such violations occurred here. See State v. Lessley,
312 Neb. 316, 978 N.W.2d 620 (2022).
(c) Application
To conduct the prejudice analysis for Galindo’s remain-
ing claims of ineffective assistance of counsel and his Brady
claims, we must consider “the totality of the evidence” before
the sentencing panel. See Strickland v. Washington, 466 U.S. at
695. As the U.S. Supreme Court explained in Strickland,
[s]ome of the factual findings will have been unaffected
by the errors, and factual findings that were affected
will have been affected in different ways. Some errors
will have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary
picture, and some will have had an isolated, trivial effect.
Moreover, a verdict or conclusion only weakly supported
by the record is more likely to have been affected by
errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account
of the effect of the errors on the remaining findings,
a court making the prejudice inquiry must ask if the
defendant has met the burden of showing that the deci-
sion reached would reasonably likely have been different
absent the errors.
466 U.S. at 695-96. We recognize that in conducting an analy-
sis of this sort, rarely will there be perfect evidence of what
the sentencing panel would have done under alternate circum-
stances, but, in this case, the panel’s order gives us guidance in
deciding what it was reasonably probable to have done. With
these considerations in mind, we start by recounting the panel’s
analysis and ultimately conclude that no reasonable probability
of a different outcome exists here.
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(i) Sentencing Panel’s Order
As it does still, § 29-2522 instructed the three-judge sentenc-
ing panel in Galindo’s case to base the sentences on the fol-
lowing considerations: whether the aggravating circumstances
as determined to exist justified the imposition of a sentence
of death; whether sufficient mitigating circumstances existed
which approached or exceeded the weight given to the aggra-
vating circumstances; or whether the sentence of death was
excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.
A jury found that for each murder, evidence at Galindo’s
aggravation hearing supported the existence of five statu-
tory aggravating circumstances set forth in § 29-2523(1): (a)
Galindo had a substantial prior history of serious assaultive or
terrorizing criminal activity, based on evidence of his involve-
ment in the murder of Lundell, committed before the bank rob-
bery; (b) the murder was committed in an effort to conceal the
identity of the perpetrator; (d) the murder was especially hei-
nous, atrocious, or cruel, or manifested exceptional depravity;
(e) at the time of the murder, another murder had been com-
mitted; and (f) at the time of the murder, Galindo knowingly
created a great risk of death to at least several persons.
The three-judge sentencing panel in turn received into evi-
dence Galindo’s presentence investigation report and the record
from the guilt and aggravation phases of the trial. The sentenc-
ing panel held a mitigation hearing.
In addition to the mitigation testimony recounted above,
the sentencing panel heard evidence about Galindo’s coop-
eration with law enforcement. The panel heard testimony that
immediately after his arrest, Galindo provided law enforce-
ment officers with some information about the bank robbery
plans and his accomplices without being offered any deals or
promises. Galindo also helped law enforcement officers locate
the guns from the bank robbery. The panel heard testimony
that after Galindo’s guilt phase was completed, he testified at
an accomplice’s trial with no assurance that he would receive
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more lenient treatment in his own case. Regarding Lundell,
evidence before the panel showed that in law enforcement
interviews in January 2003, Galindo initially denied knowing
anything about him. In between January and March of that
year, law enforcement was able to substantially narrow down
the location of Lundell’s body using cadaver dogs and “infor-
mation from cooperating individuals that had talked to . . .
Galindo.” On March 17, Lundell’s body was discovered with
additional direction from Galindo at the scene.
The sentencing panel heard evidence that a few months after
the robbery, law enforcement learned that Galindo had planned
an armed escape. Among other things, Galindo had taken steps
toward smuggling a gun onto the cell block, and a makeshift
blunt-force instrument was seized from him. The panel heard
testimony about the mortal danger to jail staff inherent in an
armed escape.
Following the mitigation hearing, the panel found no statu-
tory mitigating circumstances. See id. Regarding the statutory
mitigating circumstance that Galindo had “no significant his-
tory of prior criminal activity” under § 29-2523(2)(a), the sen-
tencing panel listed Galindo’s previous convictions for felony
theft, misdemeanor third degree assault, alcohol and controlled
substance offenses, driving under suspension, and failure to
appear. It also considered Galindo’s uncharged burglary of a
sporting goods store, by which he obtained handguns used
in the fatal bank robbery, and Galindo’s participation in the
Lundell murder. The sentencing panel observed that Galindo
was 21 years old and concluded that “already” his criminal his-
tory was not “slight or inconsequential.” See State v. Holtan,
197 Neb. 544, 548, 250 N.W.2d 876, 880 (1977), disapproved
on other grounds, State v. Palmer, 224 Neb. 282, 399 N.W.2d
706 (1986).
The sentencing panel also considered Galindo’s participa-
tion in the Lundell murder as a factor in declining to find that
he “acted under unusual pressures or influences or under the
domination of another person” pursuant to § 29-2523(2)(b).
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Other factors cited by the sentencing panel included multiple
examples of Galindo’s participation in the planning and prepa-
ration for the bank robbery, his actions during the bank robbery
itself, and his actions in fleeing afterward.
The sentencing panel considered the nonstatutory mitigating
circumstance of Galindo’s cooperation with the criminal inves-
tigation but determined that this mitigating circumstance was
“tempered” by his attempted escape from incarceration, which,
the panel elsewhere noted, would have involved violence, if
necessary, and “offset” by his lack of remorse. The sentencing
panel consequently gave Galindo’s cooperation with the inves-
tigation “little weight” as a mitigating circumstance.
The panel determined that the weight of the single miti-
gating circumstance did not approach or exceed the weight
given to the five aggravating circumstances, each of which
the sentencing panel found “significant and substantial.” See
§ 29-2522. This was so, “[e]ven if the panel were to disregard”
the aggravating circumstance in § 29-2523(1)(d), that “the
murder was especially heinous, atrocious, [or] cruel, or mani-
fested exceptional depravity by ordinary standards of moral-
ity and intelligence,” because the panel had “some concern
with historic questions surrounding the constitutionality” of
this aggravator.
The sentencing panel also found that death sentences in
Galindo’s case were not excessive or disproportionate to the
penalties imposed in similar cases, considering both the crimes
and the defendant. It based this finding on a review of 15
cases in which death sentences were pronounced, commencing
in 1973.
Accordingly, the panel sentenced Galindo to death for each
of the five murders committed during the bank robbery.
(ii) Prejudice Analysis
In light of the sentencing panel’s analysis, we now under-
take to decide whether Galindo’s remaining allegations of
deficient performance and his claims that the State withheld
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material evidence demonstrate prejudice. That is, we must
decide whether there is a reasonable probability that the sen-
tencing panel would not have sentenced Galindo to death if the
§ 29-2523(1)(a) and (d) aggravators were removed from con-
sideration and some expressions of remorse added as a mitigat-
ing circumstance. Regarding remorse, we consider the fact that
the sentencing panel also had before it statements that showed
a definitive lack of remorse.
The first question to resolve is whether there is a reason-
able probability that the sentencing panel would have found
that the altered slate of three aggravating circumstances did
not justify imposition of death sentences. See § 29-2522(1).
We conclude there was no such reasonable probability. Years
before Galindo was sentenced, we held that one aggravating
circumstance may be sufficient under our statutory system for
the sentencing court to conclude that imposition of the death
penalty is appropriate. See State v. Dunster, 262 Neb. 329, 631
N.W.2d 879 (2001). Three aggravating circumstances surpass
this threshold.
The next statutorily directed inquiry is whether there is a rea-
sonable probability that the sentencing panel would have found
the mitigating circumstances approach or exceed the weight
given to the aggravating circumstances. See § 29-2522(2). Our
task in answering this question is greatly aided by the sentenc-
ing panel’s articulation of the relative weight it attributed to
the aggravating and mitigating circumstances. Also relevant
is the sentencing panel’s statement that even if it were to dis-
regard the (1)(d) aggravator, as we are doing now, it would
not have altered its balancing of the aggravating and mitigat-
ing circumstances.
We are further cognizant of the impact of the alleged
errors on the sentencing factors as a whole. As Galindo points
out, the sentencing panel also took the Lundell murder into
account in eliminating two statutory mitigators from consider-
ation—§ 29-2523(2)(a) and (b). However, the Lundell murder
was one of numerous factors the sentencing panel considered
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in so finding. In declining to find that Galindo had no sig-
nificant history of prior criminal activity, see § 29-2523(2)
(a), the sentencing panel also observed that at age 21, Galindo
had already been convicted of felony theft, misdemeanor third
degree assault, alcohol and controlled substance offenses, driv-
ing under suspension, and failure to appear. It further noted
that Galindo burglarized a sporting goods store to obtain hand-
guns for the bank robbery, but was never charged. Likewise,
the sentencing panel found that Galindo was not a follower
who had acted under unusual pressures or influences or domi-
nation imposed by Sandoval, see § 29-2523(2)(b), citing vari-
ous details in addition to the Lundell murder. These included
Galindo’s role in planning the bank robbery; his participation
in stealing guns to be used in the bank robbery; his efforts to
recruit multiple people for the scheme; and various actions dur-
ing and immediately after the bank robbery, along with other
criminal activity, that Galindo performed while separated from
Sandoval. We are not persuaded there is a reasonable probabil-
ity that omitting the Lundell murder from consideration would
have changed the sentencing panel’s conclusion regarding the
statutory mitigators.
In our assessment, the two nonstatutory mitigating cir-
cumstances in our calculus—cooperation with law enforce-
ment “tempered” by Galindo’s attempted escape, and some
remorse—do not approach or exceed the three remaining
“significant and substantial” aggravating circumstances: the
murder was committed in an effort to conceal the identity
of the perpetrator; at the time of the murder, another murder
had been committed; and at the time of the murder, Galindo
knowingly created a great risk of death to at least several
persons. See § 29-2523(1)(b), (e), and (f). We conclude that
removal of the (1)(a) and (1)(d) aggravators and the addition
of some remorse would have “altered the sentencing profile”
to a degree, but we do not discern a reasonable probability
that the sentencing panel would have found that the weight
of the two mitigating circumstances approached or exceeded
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that of the three aggravating circumstances. See Strickland v.
Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
The final question is whether there is a reasonable prob-
ability that, given the hypothetical slate of aggravating and
mitigating circumstances suggested by Galindo’s claims, the
sentencing panel would have found that death sentences were
excessive or disproportionate to the penalty imposed in simi-
lar cases, considering both the crime and the defendant. See
§ 29-2522(3). Recognizing that no two cases are the same, we
conclude there is no such reasonable probability.
A proportionality review does not require that a court “‘color
match’” cases precisely. State v. Ellis, 281 Neb. 571, 613, 799
N.W.2d 267, 302 (2011). It would be virtually impossible to
find two murder cases which are the same in all respects. Id.
Instead, the question is simply whether the cases being com-
pared are sufficiently similar, considering both the crime and
the defendant, to provide the court with a useful frame of refer-
ence for evaluating the sentence in this case. Id.
The sentencing panel reviewed 15 cases, spanning decades,
to support its finding that death sentences in Galindo’s case
were neither excessive nor disproportionate. Although based
on the same aggravating and mitigating circumstances relied
upon by the sentencing panel, our review found Galindo’s
death sentences to be proportionate on direct appeal. See State
v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). We took
particular note of State v. Moore, 210 Neb. 457, 316 N.W.2d
33 (1982), where we affirmed a death sentence for two counts
of first degree murder of two cabdrivers during the perpetration
of robberies.
Even considering the adjusted aggravators and mitigators,
we find Moore is still relevant to our analysis today. Also
instructive is State v. Gales, 269 Neb. 443, 694 N.W.2d 124
(2005), listing cases dating back to the 1970s in which the
death penalty was imposed. And although not dispositive, it
is notable that Sandoval and Vela, Galindo’s accomplices,
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were also sentenced to death. See, State v. Sandoval, 280 Neb.
309, 788 N.W.2d 172 (2010) (affirmed on direct appeal); Vela
I, supra (affirmed on direct appeal). Upon our review of this
authority, and omitting two aggravating circumstances from
consideration and giving Galindo the benefit of the additional
mitigating circumstance of some remorse, his offenses remain
extremely grave. As we observed on direct appeal, “Galindo
knowingly participated in a dangerous crime in which five
innocent victims were almost immediately shot and killed
without any provocation.” See State v. Galindo, 278 Neb. at
675, 774 N.W.2d at 248. There is not a reasonable probability
that recalibrating the aggravating and mitigating circumstances
to correspond with Galindo’s remaining ineffective assistance
of counsel claims and his claims under Brady v. Maryland, 373
U.S.83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), would have
led the sentencing panel to determine death sentences to be
excessive or disproportionate in Galindo’s case.
10. Prosecutorial Misconduct:
Conflict of Interest
We now turn to Galindo’s assertion that the district court
erred in declining to grant an evidentiary hearing on his
postconviction claim that a prosecutorial conflict of interest
violated his constitutional right to due process. At the heart of
Galindo’s prosecutorial conflict of interest claim are many of
the same allegations regarding the county attorney’s criminal
activities and associations that we have already discussed. As
described above, Animas, Lopez, and Abendano testified at
Galindo’s aggravation hearing that Galindo admitted to them
while they were incarcerated together that he had participated
with Vela in Lundell’s murder. Padilla was also endorsed as a
witness, but he did not testify. Galindo’s postconviction motion
made factual allegations that unbeknownst to him at the time
of his trial and direct appeal, the county attorney had connec-
tions that predated Galindo’s trial to a drug ring that involved
Padilla, Lopez, Abendano, and others.
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Galindo claimed these factual allegations evidenced a pros-
ecutorial conflict of interest, in that as a result of the county
attorney’s involvement with State witnesses, the county attor-
ney’s personal interests influenced his decisions in Galindo’s
case. In particular, Galindo asserted that it was not in the
county attorney’s personal interest to disclose any connection
he had with the drug ring or its participants, to disclose any
agreement he had with Abendano to exchange Abendano’s
testimony against Galindo for the county attorney’s protect-
ing Abendano from federal prosecution and in turn avoiding
the disclosures about the county attorney it would occasion,
and to disclose Abendano as a witness in time for Galindo’s
counsel to adequately prepare to cross-examine him. Galindo
concluded, “The trial record shows [the county attorney’s]
conflict of interest affected the fairness of the proceedings and
undermines confidence in the jury’s verdict regarding Lundell.
[The county attorney’s] personal entanglement with several
. . . prosecution witnesses rendered the aggravation hearing
fundamentally unfair.”
The district court denied postconviction relief on the issue,
without an evidentiary hearing, and Galindo now challenges
this ruling on appeal.
Galindo’s prosecutorial conflict of interest claim is compli-
cated by the fact that it does not appear that either the U.S.
Supreme Court or this court has expressly recognized a due
process right to a conflict-free prosecutor. The U.S. Supreme
Court has said that a prosecutor’s personal conflict of interest
might “in some contexts raise serious constitutional questions.”
Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50, 100 S. Ct.
1610, 64 L. Ed. 2d 182 (1980). And other courts have found
that a prosecutor’s conflict of interest violated a defendant’s
right to due process. See, e.g., Ganger v. Peyton, 379 F.2d
709 (4th Cir. 1967); State v. Eldridge, 951 S.W.2d 775 (Tenn.
1997) (collecting cases); Cantrell v. Com., 229 Va. 387, 329
S.E.2d 22 (1985).
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Even if a prosecutor’s conflict of interest can violate a
defendant’s right to due process, a difficult question remains
as to how to identify when such a conflict does so. The ques-
tion is difficult, in no small part, due to the role of prosecutors.
In a sense, prosecutors are not disinterested parties to crimi-
nal prosecutions. See Wright v. United States, 732 F.2d 1048,
1056 (2d Cir. 1984) (“[o]f course, a prosecutor need not be
disinterested on the issue whether a prospective defendant has
committed the crime with which he is charged”). For this rea-
son, there is general agreement that prosecutors’ participation
in a case is not subject to the same conflict of interest rules
that govern judges. See, Young v. U. S. ex rel. Vuitton et Fils
S. A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987)
(Vuitton); People v. Vasquez, 39 Cal. 4th 47, 137 P.3d 199, 45
Cal. Rptr. 3d 372 (2006).
It is not necessary in this case to identify the precise contours
of a due process right to a conflict-free prosecutor. Rather, it
is sufficient to say that we agree with those courts that have
recognized that there may be situations in which a prosecutor’s
personal interests so undermine the fundamental fairness of a
criminal proceeding that the defendant’s right to due process is
violated. Additionally, for the sake of this analysis, we assume
that Galindo’s allegations identify the type of conflict of inter-
est on the part of a prosecutor that could rise to the level of a
due process violation.
Even with the foregoing established, another difficult ques-
tion remains: If Galindo has alleged facts identifying the
type of prosecutorial conflict of interest that could amount
to a due process violation, does that alone mean that he is
entitled to an evidentiary hearing on the issue? Galindo claims
that the answer to that question is yes. In support, he argues
that the alleged prosecutorial conflict of interest is structural
error. Structural error is the term the U.S. Supreme Court has
used to refer to “a very limited class of errors that trigger
automatic reversal because they undermine the fairness of a
criminal proceeding as a whole.” See United States v. Davila,
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569 U.S. 597, 611, 133 S. Ct. 2139, 186 L. Ed. 2d 139 (2013)
(internal quotation marks omitted).
Galindo’s argument that he has alleged facts that, if proved,
would amount to structural error rests primarily on the U.S.
Supreme Court’s opinion in Vuitton, supra. In that case, after
parties had allegedly violated an injunction, a federal court
appointed attorneys for the opposing party as special prosecu-
tors to pursue a criminal contempt action. After convictions
were entered for contempt, the contempt defendants filed an
appeal contending that the appointment of special prosecu-
tors with an interest in the outcome violated their right to
be prosecuted by an impartial prosecutor. Under its supervi-
sory power over the federal courts, the U.S. Supreme Court
reversed and held that “counsel for a party that is the benefi-
ciary of a court order may not be appointed as prosecutor in
a contempt action alleging a violation of that order.” Id., 481
U.S. at 809.
A four-justice plurality of the U.S. Supreme Court in Vuitton
also concluded that the error was not subject to harmless error
review. The plurality reasoned that appointing an interested
prosecutor has pervasive effects “and therefore requires scru-
tiny of . . . the conduct of an entire prosecution, rather than
simply a discrete prosecutorial decision.” Id., 481 U.S. at 812.
The plurality determined that because it would be very difficult
to determine any effect the conflict had on the special prosecu-
tor’s discretion, harmless error review should not be available.
In an opinion concurring in part and dissenting in part, three
justices disagreed with the plurality’s determination that the
issue was not subject to harmless error review.
We disagree with Galindo’s argument that Vuitton compels
the conclusion that he has alleged facts that, if proved, would
amount to structural error. First, Vuitton was not decided
based on the Due Process Clause, but on the Court’s supervi-
sory power over contempt proceedings. See Webber v. Scott,
390 F.3d 1169 (10th Cir. 2004). See, also, Bruce A. Green
& Rebecca Roiphe, Rethinking Prosecutors’ Conflicts of
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Interest, 58 B.C. L. Rev. 463 (2017). Further, the portion of
Vuitton finding structural error upon which Galindo relies
was not joined by a majority of the Court. See Webber v.
Scott, supra (observing that plurality of court in Vuitton found
appointment of private prosecutor was not subject to harmless
error analysis).
While the foregoing facts persuade us that Vuitton is not
binding in this case, even if it were, we believe the facts
here are distinguishable. The conflict that posed a problem
in Vuitton was that the special prosecutors were counsel to a
party that was a beneficiary of the court order the contempt
defendants were alleged to have violated. In that situation,
the special prosecutors could use the threat of prosecution as
a weapon in civil negotiations and therefore had an interest
in pursuing and obtaining a conviction. As discussed above,
the Vuitton plurality concluded that automatic reversal was
required, in part because it did not believe it would be possible
to determine how the special prosecutor’s interest in the con-
tempt proceeding affected the various discretionary decisions
that would have been made during the case.
The conflict Galindo has alleged is different. His allegations
do not suggest that the county attorney had a personal interest
against Galindo or in a particular outcome in Galindo’s case
such that the entire prosecution or penalty phase is called into
question. Rather, Galindo alleges that the county attorney had
an interest in being able to use Abendano as a witness against
Galindo as part of an effort to shield himself from criminal
investigation and an interest in failing to disclose his own
connections to the drug ring. These interests, Galindo alleges,
prompted the county attorney to rely on Abendano as a wit-
ness in support of the allegation that Galindo was involved
in the Lundell murder and to fail to disclose his allegedly
unsavory connections to Abendano and others who testified
regarding the Lundell murder. According to Galindo, then,
the alleged conflict influenced how the prosecutor went about
trying to prove that Galindo was involved in the Lundell
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murder. As Galindo himself alleges in his motion for postcon-
viction relief, the conflict of interest “undermines confidence
in the jury’s verdict regarding Lundell.”
We recognize that Galindo’s brief speculates that the alleged
conflict of interest “may have also influenced [the county
attorney’s] decision to even seek the death penalty against
Galindo.” Brief for appellant at 64. Galindo’s motion, however,
does not refer to such a theory or make such an allegation.
Because the district court could not err by failing to consider
this theory not presented in the postconviction motion, we do
not consider it here. See State v. Ammons, 314 Neb. 433, 900
N.W.2d 897 (2023).
With the proper alleged conflict in view, we do not believe
Galindo has alleged facts that, if proved, would amount to
structural error, for reasons we will explain.
Most constitutional errors are not structural errors and are
thus subject to harmless error analysis. See, Rose v. Clark,
478 U.S. 570, 578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)
(structural errors are “the exception and not the rule”). A
defining characteristic of errors that are subject to harmless
error analysis is that they occur “during the presentation of
the case to the jury” and therefore may “be quantitatively
assessed in the context of other evidence presented in order
to determine whether [the] admission was harmless beyond a
reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 307,
308, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). Structural
error, on the other hand, “def[ies] analysis by ‘harmless-error’
standards” because it “affect[s] the framework within which
the trial proceeds” and is not “simply an error in the trial
process itself.” Id., 499 U.S. at 309, 310. See, also, Brecht v.
Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710, 123 L. Ed.
2d 353 (1993) (explaining that structural errors “infect the
entire trial process”). The U.S. Supreme Court has instructed
that “if the defendant had counsel and was tried by an impar-
tial adjudicator, there is a strong presumption that any other
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errors that may have occurred are subject to harmless-error
analysis.” Rose v. Clark, 478 U.S. at 579.
We believe the prosecutorial conflict of interest alleged by
Galindo is not structural error. As we have discussed, Galindo
has not alleged facts suggesting that the county attorney had a
particular ax to grind against him or an interest in a particular
outcome in his prosecution. Rather, Galindo’s allegations, at
most, suggest that the county attorney had an interest in hav-
ing Abendano offer testimony regarding one aggravator in the
penalty-phase proceedings and in failing to disclose his own
criminal connections to others who testified against Galindo
with respect to that same aggravator. Even assuming it was
the county attorney’s personal interests that led him to pursue
and present this testimony and fail to disclose evidence that
would cast doubt on the same, the impact of that evidence
on Galindo’s eventual death sentences can “be quantitatively
assessed in the context of other evidence presented in order
to determine whether its admission was harmless beyond a
reasonable doubt” and would not infect the entire trial proc
ess. Arizona v. Fulminante, 499 U.S. at 308. We note that
several courts both before and after the U.S. Supreme Court’s
decision in Vuitton have either subjected prosecutorial con-
flict of interest claims to harmless error review or held that a
defendant raising such a claim must make some showing of
prejudice. See, e.g., Webber v. Scott, 390 F.3d 1169 (2004);
U.S. v. Terry, 17 F.3d 575 (2d Cir. 1994); United States v.
Heldt, 668 F.2d 1238 (D.C. Cir. 1981); Ganger v. Peyton, 379
F.2d 709 (4th Cir. 1967); Bruce A. Green & Rebecca Roiphe,
Rethinking Prosecutors’ Conflicts of Interest, 58 B.C. L. Rev.
463 (2017). We similarly conclude that the allegations in
Galindo’s motion, even if proved, would not amount to struc-
tural error.
Because Galindo has not alleged facts that would amount
to structural error, our analysis of this issue is not complete,
even assuming he has alleged facts that would amount to a
constitutional violation. Our cases have recognized that in
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Nebraska, postconviction relief is a very narrow category
of relief, available only to remedy prejudicial constitutional
violations that render the judgment void or voidable. See,
e.g., State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022).
Consistent with that understanding, we have held that the
defendant in a postconviction proceeding has the burden of
alleging and proving that a claimed error is prejudicial. See,
e.g., State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007). We
have also recognized that an error is not prejudicial if we are
persuaded that it is harmless beyond a reasonable doubt. See,
e.g., State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023).
With all these principles in mind, we understand our task as
follows: We must review Galindo’s motion and determine
if he has alleged facts which, if proved, would amount to a
prejudicial constitutional error, i.e., one that is not harmless
beyond a reasonable doubt. If not, he is not entitled to an evi-
dentiary hearing.
Before turning to that analysis, we digress briefly to address
an objection we anticipate Galindo might lodge to our approach.
We do not believe our approach is inconsistent with the U.S.
Supreme Court’s opinion in Chapman v. California, 386 U.S.
18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), and its progeny to
the extent those cases hold that the prosecution has the burden
of demonstrating that an error is harmless. First, we note that
while it is clear that the Chapman harmless error standard
must be applied when constitutional error is found on a direct
appeal, it is far less clear that a state court must apply that
standard in a collateral attack on convictions such as these.
Indeed, some state courts do not apply the Chapman harmless
error standard in postconviction challenges to a conviction.
See, e.g., Banks v. Com’r of Correction, 339 Conn. 1, 259 A.3d
1082 (2021) (collecting cases from state courts declining to
apply Chapman harmless error standard on collateral review
of constitutional errors); Matter of Hagler, 97 Wash. 2d 818,
826, 650 P.2d 1103, 1108 (1982) (“[o]n collateral review, we
shift the burden to the petitioner to establish that the error
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was not harmless”). See, also, Brown v. Davenport, __ U.S. __,
142 S. Ct. 1510, 1530, 212 L. Ed. 2d 463 (2022) (“Chapman
merely announced the default burden of proof for evaluating
constitutional errors on direct appeal”). And the U.S. Supreme
Court has held that federal courts, when entertaining collateral
constitutional challenges to state court convictions, should
apply a standard other than the Chapman harmless error stan-
dard. See Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993).
But even setting to the side whether we are obligated to
apply the Chapman harmless error standard in this postconvic-
tion proceeding, we do not believe our approach is inconsistent
with that standard. In Chapman itself, the Court said it was
holding that “before a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” 386 U.S. at 24. Courts
have understood Chapman to place a burden of persuasion
on the prosecution to show that any error was harmless, see,
e.g., U.S. v. Crochiere, 129 F.3d 233 (1st Cir. 1997), and to
require that doubts about whether the standard has been met
be resolved in favor of the defendant, see O’Neal v. McAninch,
513 U.S. 432, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995). But
the approach we apply today does not shift any burden of
persuasion or require the resolution of close cases against the
defendant. Instead, we consider whether, assuming Galindo
proves the facts alleged in his motion, we can nonetheless
declare a belief that any constitutional error based on those
allegations would be harmless beyond a reasonable doubt. We
proceed to that analysis now.
Having decided to subject Galindo’s prosecutorial conflict
of interest claim to harmless error analysis, we conclude
that he is not entitled to an evidentiary hearing on this issue,
because, assuming he can establish the requisite conflict of
interest, we find beyond a reasonable doubt that it would
not amount to more than harmless error. As discussed above,
Galindo asserted in his motion that the alleged prosecutorial
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conflict of interest affected the way the county attorney went
about proving that he was involved in the killing of Lundell
and undermines confidence in the jury’s finding on that issue.
But even if the alleged conflict affected the evidence the
county attorney presented and failed to disclose regarding the
killing of Lundell, we are confident beyond a reasonable doubt
that even without any evidence of Galindo’s involvement in
killing Lundell and concealing his body, the sentencing panel
would have imposed the same sentences.
Omitting the Lundell murder and resulting aggravating
circumstance from consideration would leave multiple aggra-
vating circumstances. Evidence connecting Galindo to the
Lundell murder served to prove the aggravating circumstance
that Galindo had a substantial prior history of serious assaul-
tive or terrorizing criminal activity. See § 29-2523(1)(a).
Absent this aggravating circumstance, there are three aggrava-
tors which Galindo has not challenged on postconviction
and which the sentencing panel found “significant and sub-
stantial.” These aggravators would have remained to justify
imposition of the death penalty under § 29-2522(1) and for
the sentencing panel to weigh against any mitigating circum-
stances it found pursuant to § 29-2522(2): The murders were
committed in an effort to conceal the commission of a crime
or the identity of the perpetrator of such crime; at the time
each murder was committed, another murder had been com-
mitted; and at the time each murder was committed, Galindo
knowingly created a great risk of death to at least several
people. See § 29-2523(1)(b), (e), and (f). See, also, State v.
Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001) (one aggra-
vating circumstance may be sufficient under our statutory
system for sentencing court to conclude imposition of death
penalty is appropriate).
We are also confident that removing evidence of the
Lundell murder would not have made an appreciable dif-
ference in the mitigators that the sentencing panel applied.
The sentencing panel did not find any statutory mitigators to
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exist. As we explained earlier, although the sentencing panel
mentioned the Lundell murder in eliminating two statutory
mitigators from consideration—that the offender had “no sig-
nificant history of prior criminal activity,” § 29-2523(2)(a), and
that the offender “acted under unusual pressures or influences
or under the domination of another person,” § 29-2523(2)
(b)—it was but one of numerous factors the sentencing panel
cited in deciding not to credit these mitigators to Galindo. We
have no reasonable doubt that the sentencing panel still would
not have given Galindo the benefit of these statutory mitigators
if the Lundell murder had been taken out of the equation. We
conclude beyond a reasonable doubt that the sentencing panel
would not have found mitigating circumstances to approach or
exceed at least three “significant and substantial” aggravating
circumstances. See § 29-2522(2).
We find confirmation for our approach and our conclusion
in State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
Like Galindo, Sandoval was sentenced to death for each of the
five homicides committed during the bank robbery. On direct
appeal, he argued that the district court erred in overruling
his objection to the jury instruction for the (1)(d) aggravator.
We found error, but we determined that it was harmless. Our
harmless error analysis examined whether the sentencing panel
would have imposed the death penalty beyond a reasonable
doubt absent consideration of the (1)(d) aggravator and con-
cluded it would have. In reaching this conclusion, we applied
the aggravating circumstances in § 29-2523(1)(b), (e), and (f)
and observed that the sentencing panel assigned each aggrava-
tor “‘significant and substantial’” weight. State v. Sandoval,
280 Neb. at 363, 788 N.W.2d at 218. We reasoned that had the
sentencing panel considered these three aggravators alongside
no statutory mitigators and only one nonstatutory mitigator—
Sandoval’s bad childhood—to which the panel gave “‘little
weight,’” it would have imposed the death sentences beyond a
reasonable doubt. Id.
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Galindo argues that the district court erred in referencing
Sandoval in concluding that Galindo was not entitled to an
evidentiary hearing on his postconviction claims. He asserts
this amounted to “simply treat[ing] Galindo like Sandoval,”
brief for appellant at 40, and deprived him of “precision that
individualized consideration demands.” See Stringer v. Black,
503 U.S. 222, 231, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992).
We agree that our harmless error determination in Sandoval
does not automatically mean that any prosecutorial conflict
of interest here was harmless. At the same time, however, we
find Sandoval to be instructive as to how we perform a harm-
less error analysis when removing an aggravating circumstance
from consideration.
We further conclude beyond a reasonable doubt that if the
Lundell murder had not been before the sentencing panel, it
would still not have found that death sentences were excessive
or disproportionate to the penalty imposed in similar cases, con-
sidering both the crime and the defendant. See § 29-2522(3). As
we have already observed, this inquiry does not require a court
to “‘color match’” cases precisely. See State v. Ellis, 281 Neb.
571, 613, 799 N.W.2d 267, 302 (2011). It asks only whether
the cases being compared are sufficiently similar, considering
both the crime and the defendant, to provide the court with a
useful frame of reference for evaluating Galindo’s sentences.
See id. Above, we noted the comparative cases considered by
the sentencing panel and by this court on direct appeal. See
State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). We
further noted that Sandoval and Vela, Galindo’s accomplices,
were also sentenced to death. See, State v. Sandoval, 280 Neb.
309, 788 N.W.2d 172 (2010) (affirmed on direct appeal); Vela
I, supra (affirmed on direct appeal). Taking the Lundell murder
out of the calculus, any impact on this proportionality analysis
is negligible. Beyond a reasonable doubt, we conclude that
even with this adjustment, the sentencing panel would not have
determined death sentences to be excessive or disproportionate
in Galindo’s case.
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Although we conclude on the record before us that Galindo’s
prosecutorial conflict of interest claim could amount to nothing
more than harmless error and he is therefore not entitled to an
evidentiary hearing on the issue, our decision should in no way
be understood as minimizing or countenancing the seriousness
of the allegations against the county attorney in this case. It
would be a great understatement to say that the county attorney
would be deserving of serious condemnation if these allega-
tions are true. Our analysis here, however, must principally
focus not on the blameworthiness of the county attorney, but
on whether Galindo sufficiently alleged a claim for postconvic-
tion relief. For the reasons we have discussed, we conclude that
he has not. We find that the district court did not err in declin-
ing to grant an evidentiary hearing on this issue.
11. Prosecutorial Misconduct: Knowing
Use of False Testimony
Finally, Galindo relies on the well-established rule that a
criminal defendant’s due process rights are violated whenever
the prosecution’s case includes false evidence that is mate-
rial to the outcome, which the prosecution either knew or
should have known was false. See, Giglio v. United States,
405 U.S. 150, 92 S. Ct. 76, 31 L. Ed. 2d 104 (1972); Napue
v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217
(1959). Galindo assigns that the district court erred in denying
him an evidentiary hearing on his postconviction claims that
the State violated his due process rights when it knowingly
introduced false testimony by Barritt, Animas, and Abendano
at the aggravation hearing. For all three witnesses, that testi-
mony was confined to matters relating to the Lundell murder.
Even assuming these postconviction claims allege the know-
ing use of false testimony and are not procedurally barred, we
conclude Galindo cannot show the claimed false testimony
was material.
As we have explained, Barritt, Animas, and Abendano tes-
tified that Galindo admitted he assisted in killing Lundell
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and disposing of his body. Citing Barritt’s testimony at the trial
of one of Galindo’s accomplices, Galindo argues that he was
entitled to postconviction relief on his claim that the county
attorney knowingly presented false evidence at his aggravation
hearing when Barritt testified that she had not been promised
anything in exchange for information about the Lundell mur-
der. Regarding Animas’ testimony that Galindo said he par-
ticipated in killing and disposing of Lundell’s body, Galindo
asserts that the fact that he never received a requested record-
ing of a police interview in which Animas implicated Galindo,
combined with Animas’ pretrial and posttrial statements aver-
ring that Galindo said he was not involved in any way with
Lundell’s death, “suggests” that the county attorney knew
Animas’ testimony at the aggravation hearing was false. Brief
for appellant at 60. And Galindo posits that the “circumstances
surrounding” Abendano—his status as a jailhouse informant
and his and the county attorney’s drug-ring associations—
“suggest his testimony cannot be trusted.” Id. at 59.
When we recall the fundamental principles that apply to
postconviction review, it is not clear to us that any of these
claims, at the most basic level, qualify for an evidentiary
hearing. For instance, we have consistently said that a motion
for postconviction relief cannot be used to secure review
of issues that were known to the defendant and which were
or could have been litigated on direct appeal; and we see
indications in the record that Galindo could have addressed
Barritt’s allegedly false testimony on direct appeal. See State
v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). See, also,
State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022). We
have also repeatedly said that an evidentiary hearing is not
required on a motion for postconviction relief when the
motion alleges only conclusions of fact or law without sup-
porting facts. See State v. Lessley, supra. With this proposi-
tion in mind, we question whether Galindo’s false testimony
allegations pertaining to Barritt, Animas, and Abendano assert
facts showing that their testimony was indeed false and that
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the prosecution knew it. But even assuming without decid-
ing that Galindo’s false testimony claims have surmounted
the aforementioned obstacles, we conclude that they cannot
succeed, because Galindo cannot show the alleged false testi-
mony was material.
Regarding materiality, it has long been held that “a convic-
tion obtained by the knowing use of perjured testimony is
fundamentally unfair, and must be set aside if there is any rea-
sonable likelihood that the false testimony could have affected
the judgment of the jury.” United States v. Agurs, 427 U.S. 97,
103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). See, also, State
v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012), disap-
proved on other grounds, State v. Avina-Murillo, 301 Neb. 185,
917 N.W.2d 865 (2018). In this challenge to the penalty-phase
proceedings, application of that materiality standard would
require that Galindo’s death sentences be set aside if there was
any reasonable likelihood that the false testimony could have
affected those sentences.
We are aware that there is some disagreement among courts
as to whether, in a collateral attack on a conviction, the defend
ant is entitled to relief merely upon a showing that there was
a knowing presentation of false testimony and a satisfaction
of the materiality standard described above. This disagreement
is, in part, about the scope of the U.S. Supreme Court’s opinion
in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123
L. Ed. 2d 353 (1993). Brecht held that in determining whether
relief should be granted in a collateral attack on a conviction,
federal courts should ask whether the error “‘had substantial
and injurious effect or influence in determining the jury’s
verdict,’” rather than the more defendant-friendly harmless-
beyond-a-reasonable-doubt standard that applies on direct
review. Id., 507 U.S. at 637, quoting Kotteakos v. United States,
328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). Some
federal courts, in reliance on Brecht, have held that such relief
should only be granted on a knowing presentation of false
testimony claim raised in a collateral attack if the standard
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articulated in Brecht is satisfied. See, e.g., Rosencrantz v.
Lafler, 568 F.3d 577 (6th Cir. 2009). Other federal courts dis-
agree and have held that the Brecht standard does not apply
to a knowing presentation of false testimony claim. See, e.g.,
Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005). Beyond that
disagreement, courts also divide on whether the Brecht stan-
dard is ever proper as a harmlessness standard for collateral
review of constitutional errors in state courts. See, e.g., Banks
v. Com’r of Correction, 339 Conn. 1, 259 A.3d 1082 (2021)
(collecting cases).
In this case, we see no need to wade into the disagreements
referenced above, because we find that Galindo is not entitled
to an evidentiary hearing even assuming the Brecht standard
does not apply. We reach this conclusion because even if his
allegations are proved, there is no reasonable likelihood that the
false testimony could have affected Galindo’s death sentences.
As to why that is the case, there is little left to say. We have
already explained that we are confident beyond a reasonable
doubt that the sentencing panel would have imposed the same
sentences absent any evidence regarding the Lundell murder.
All of the testimony that is the subject of Galindo’s knowing
presentation of false evidence claim related to the Lundell mur-
der. And the materiality standard applicable to such claims has
been held to be equivalent to the harmless-beyond-a-reasonable
doubt standard. See, United States v. Bagley, 473 U.S. 667, 105
S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Haskell v. Superintendent
Greene SCI, 866 F.3d 139 (3d Cir. 2017). Accordingly, we
conclude that Galindo’s motion does not contain factual alle-
gations which, if proved, constitute an infringement of his
constitutional rights. See State v. Lessley, 312 Neb. 316, 978
N.W.2d 620 (2022). The district court did not err in denying
Galindo an evidentiary hearing on his postconviction claim that
the prosecution violated his due process rights by knowingly
presenting false testimony.
The same reasoning provides an alternative basis for our
conclusion that Galindo is not entitled to an evidentiary
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hearing on his claim that the State violated his right to counsel
under Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199,
12 L. Ed. 2d 246 (1964), and its progeny, as a result of the
county attorney’s alleged elicitation of statements from him via
informants. The statements Galindo alleges were elicited from
him or fabricated in violation of his right to counsel pertained
solely to the Lundell murder, and Massiah violations are sub-
ject to harmless error review. See Milton v. Wainwright, 407
U.S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972).
V. CONCLUSION
For the foregoing reasons, we affirm the district court order
denying Galindo postconviction relief without an eviden-
tiary hearing.
Affirmed.
Heavican, C.J., and Freudenberg, J., not participating.
Papik, J., concurring in part, and in part dissenting.
I agree with almost all of the majority opinion. Galindo
raised numerous claims in his postconviction motion, and, with
respect to all but one of those claims, I do not believe he was
entitled to an evidentiary hearing for the reasons the majority
articulates. In my view, however, the district court should have
granted an evidentiary hearing on Galindo’s claim that his due
process rights were violated as a result of a conflict of interest
on the part of the county attorney. I write separately to explain
my reasoning.
Galindo’s prosecutorial conflict of interest claim is rooted in
allegations that the county attorney was involved in a criminal
drug ring. Galindo does not challenge his underlying convic-
tions but claims that the county attorney’s criminal exposure
influenced his decisions in the aggravation phase of Galindo’s
case. Specifically, Galindo’s postconviction motion alleged
that the aggravation phase of his case provided the county
attorney with an opportunity to attempt to shield himself from
federal scrutiny of his own criminal activities through the
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following scheme: Participants in the drug ring would testify
against Galindo by implicating him in the death of Travis
Lundell, and that testimony would allow the county attorney
to recommend against further federal investigation of the drug
ring’s participants and reduce the chances that federal authori-
ties would discover his own connections to the drug ring.
As the majority opinion observes, there is not a great deal
of authority from the U.S. Supreme Court or other courts
on whether and under what circumstances a defendant’s due
process rights can be violated based on a prosecutorial con-
flict of interest. Even so, I believe it follows from general due
process principles that Galindo’s allegations, if proved, could
form the basis of a due process violation.
Although the U.S. Supreme Court has said that courts are
not free in defining due process to impose their own personal
and private notions of fairness, it has also recognized that the
Due Process Clause stands in the way of state action that “vio-
lates those fundamental conceptions of justice which lie at the
base of our civil and political institutions, . . . and which define
the community’s sense of fair play and decency.” Dowling v.
United States, 493 U.S. 342, 353, 110 S. Ct. 668, 107 L. Ed.
2d 708 (1990) (internal quotation marks omitted). One of the
fundamental aspects of our criminal justice system is that, as
this court recognized over a century ago, the prosecutor is
“called upon to exercise a sound discretion” in deciding who
and what to prosecute, and “there should not be anything in
the way of private interest to possibly sway that judgment or
to tempt him to depart from a disinterested and conscientious
discharge of his duty.” Ress v. Shepherd, 84 Neb. 268, 269-70,
120 N.W. 1132, 1133 (1909). If, as alleged here, a prosecu-
tor’s personal interests in avoiding criminal investigation and
prosecution influenced his or her prosecutorial decisions in a
particular case, that would seem to violate fundamental con-
ceptions of justice and thus be capable of forming the basis
of a due process violation.
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But the idea that Galindo’s allegations, if proved, could form
the basis of a due process claim is not the primary point of
contention regarding this claim. The State made no argument
that Galindo’s allegations of a prosecutorial conflict of interest
could not form the basis of a due process claim, and the major-
ity likewise assumes that Galindo has alleged facts regarding a
prosecutorial conflict of interest that, if proved, could support
a due process violation.
At issue instead is whether Galindo would automatically be
entitled to relief if he proved the alleged conflict of interest
or whether some consideration must also be given to whether
the conflict affected the ultimate outcome and, if so, how to
conduct that analysis. On this point, Galindo argues that the
prosecutorial conflict of interest is the type of structural error
that would automatically entitle him to relief if he proved the
conflict of interest allegations. The majority rejects this argu-
ment and finds that even if Galindo proved his conflict of inter-
est allegations, the conflict could not amount to anything more
than harmless error.
As there is not a lot of clear authority on whether a defend
ant has a due process right to a disinterested prosecutor, it
should come as no surprise that there is also not a lot of
clear authority on whether the analysis of such a due process
claim requires consideration of whether the conflict of interest
harmed the defendant and, if so, the standard for considering
that question. Galindo relies heavily on Young v. U. S. ex rel.
Vuitton et Fils S. A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed.
2d 740 (1987), for his argument that a conviction achieved by
a conflicted prosecutor is structural error and thus requires no
analysis of how the conflict might have affected the outcome.
As the majority correctly points out, however, the reversal in
that case was not on constitutional grounds and the portion of
that opinion finding the error was structural was not joined by
a majority of the court.
Further, among those courts that have concluded that a
due process claim based on a conflicted prosecutor is subject
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to some type of assessment of harm, courts have applied a
variety of standards. Some courts seem to have concluded that
a defendant has a due process right to a disinterested prosecu-
tor, but that even if the prosecutor is conflicted, the claim is
subject to harmless error review. See, e.g., Ganger v. Peyton,
379 F.2d 709 (4th Cir. 1967). See, also, Young, supra (Powell,
J., concurring in part and in part dissenting; Rehnquist, C.J.,
and O’Connor, J., join) (concluding that participation of inter-
ested prosecutors should be subject to harmless error review).
Some have determined that a defendant must prove that the
conflict resulted in prejudice. See, e.g., U.S. v. Heldt, 668 F.2d
1238 (D.C. Cir. 1981). See, also, Bruce A. Green & Rebecca
Roiphe, Rethinking Prosecutors’ Conflicts of Interest, 58 B.C.
L. Rev. 463 (2017). Still others have required the defendant
to show only a “reasonable potential for prejudice.” See, e.g.,
People v. Zimmer, 51 N.Y.2d 390, 395, 414 N.E.2d 705, 707,
434 N.Y.S.2d 206, 208 (1980). One court has additionally
urged that the standard should shift depending on whether the
challenge to the prosecutor’s independence is made at trial, on
direct appeal, or in a collateral attack. See Wright v. United
States, 732 F.2d 1048 (2d Cir. 1984).
Given the lack of clear guidance from the U.S. Supreme
Court and the variety of approaches employed by other courts
in evaluating a due process claim based on a conflicted pros-
ecutor, it is, in my view, difficult to determine how such a
claim should ultimately be resolved. At this stage of the case,
however, we are not ultimately resolving Galindo’s claim. We
are deciding only whether he should receive an evidentiary
hearing on the claim. And even assuming that the standard
most friendly to the State ultimately applies, i.e., Galindo must
prove both the alleged conflict on the part of the county attor-
ney and that the conflict prejudiced him, I believe Galindo’s
allegations are sufficient to merit an evidentiary hearing.
As detailed above, Galindo has alleged that the county
attorney had a conflict arising from his own personal crimi-
nal exposure. As for prejudice, I acknowledge that Galindo
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
primarily alleges that the county attorney’s personal interests
influenced the way he went about attempting to prove that
Galindo was involved in the Lundell murder. And, I share the
majority’s confidence that the sentencing panel would have
imposed the same sentences even if the jury had not found the
aggravating circumstance based on the Lundell murder. That
said, I do not believe we can assess whether a prosecutorial
conflict of interest prejudiced Galindo based solely on ask-
ing whether the sentencing panel would have imposed death
sentences even if the Lundell murder was taken out of the
equation. In addition to allegations that the county attorney’s
alleged conflict undermines confidence in the jury’s findings
regarding the Lundell murder, Galindo’s postconviction motion
alleged that the county attorney’s conflict affected the fairness
of the proceedings and would have made the county attorney
subject to a motion for disqualification had Galindo known of
the conflict at the time. Galindo thus alleged that the county
attorney’s participation in the penalty phase of the proceedings
violated his right to due process. Accordingly, I believe preju-
dice must be assessed by determining whether the same sen-
tences would have been imposed had the case been prosecuted
by a nonconflicted prosecutor.
In my view, determining what would have happened if
the case was prosecuted by a nonconflicted prosecutor is not
as simple as analyzing the evidence introduced at trial and
the aggravating and mitigating circumstances found by the
jury and the sentencing panel and determining whether the
absence of a particular aggravating circumstance would have
affected the ultimate sentences imposed. As the U.S. Court
of Appeals for the Fourth Circuit explained in rejecting an
argument that the participation of a conflicted prosecutor was
harmless error, “we do not know and cannot now ascertain
what would have happened if the prosecuting attorney had
been free to exercise the fair discretion which he owed to all
persons charged with crime in his court.” Ganger v. Peyton,
379 F.2d 709, 714 (4th Cir. 1967). To be sure, it strikes me
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315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1
as possible, and perhaps even likely, that a nonconflicted
prosecutor also would have successfully pursued the death
penalty against Galindo. But given the substantial discretion
that is invested in prosecutors and, more importantly, the
lack of any evidence at this stage as to what a nonconflicted
prosecutor would have done, I do not see a basis to now
determine that Galindo could not establish that the outcome
of the penalty phase would have been different with a disin-
terested prosecutor.
Because I cannot say at this stage that Galindo is incapable
of proving a constitutional violation that would render his sen-
tences void or voidable, I would grant him an evidentiary hear-
ing on his claim that the county attorney’s conflict of interest
violated his due process rights. Even if granted this hearing,
Galindo would be a long way from obtaining relief from his
death sentences; while his allegations about the county attor-
ney’s behavior are serious to say the least, at this stage, they
are mere allegations. But, for the reasons explained herein, I
believe he is at least entitled to an evidentiary hearing on this
claim. I respectfully dissent from the portion of the majority
opinion that holds otherwise.
Miller-Lerman, J., joins in this concurrence and dissent.
Miller-Lerman, J., dissenting in part.
Along with Justice Papik’s partial dissent in which I join, I
write summarily only to say that in a death penalty case, the
penalty phase prosecuted by a prosecutor with a conflict should
not be left unexamined. I would grant an evidentiary hearing
on the allegations pertaining to the penalty proceedings.
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
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Law
9840117
[SEGMENT 1]
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. COLE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
CEDRICK D. COLE, APPELLANT.
Filed July 30, 2024. No. A-23-868.
Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
Cedrick D. Cole, pro se.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
MOORE, RIEDMANN, and BISHOP, Judges.
BISHOP, Judge.
I. INTRODUCTION
Cedrick D. Cole appeals from the order of the Lancaster County District Court denying his
motion for postconviction relief without holding an evidentiary hearing. We affirm.
II. BACKGROUND
. CONVICTION AND SENTENCE
In 2021, Cole was convicted by a jury of first degree arson. See [CITATION]. The
district court sentenced him to 25 to 40 years’ imprisonment. Id. As set forth in this court’s
previous opinion, the evidence adduced at Cole’s jury trial is as follows.
On Saturday, October 10, 2020, Cole was with his then-girlfriend Jordan Ragland
at her apartment in Lincoln, Nebraska, and they argued about Cole’s alleged infidelity.
Following their argument, Ragland asked her friend, Ashley Rice, to pick her up from the
apartment and help her move her belongings to her mother’s house. Rice arrived to pick up
Ragland in the early afternoon. Following Ragland’s departure, Cole made numerous calls
to Ragland, most of which she ignored. Approximately 10 minutes after she left the
apartment, Ragland received a Snapchat video from Cole showing her couch on fire. In a
video recording of Ragland opening and viewing the Snapchat video, Ragland can be heard
saying “Oh my god.” Rice then asked Ragland, “He actually set it on fire?” Ragland
responded “[y]es.” After viewing the Snapchat video, Rice and Ragland began heading
back to the apartment. Cole testified that he had called Ragland numerous times to alert
her that her couch had caught fire, but to no avail. He explained that this was the reason he
sent Ragland a Snapchat video of the burning couch.
Cole claimed he attempted to subdue the fire by dousing the flames with flour and
water. Ragland’s neighbor, Shelby Marshall, assisted by running jugs of water over from
her apartment to throw at the fire. Despite these efforts, the flames became uncontrollable
and spread beyond the couch to the rest of the apartment unit. According to Marshall, she
was “more active in trying to put the fire out” than Cole. She further stated that Cole seemed
“lethargic.” According to Cole, he had suffered a previous injury to his leg, which limited
his mobility. Cole called 911 to request emergency assistance. However, Marshall stated
that Cole did not call 911 until she instructed him to do so. Lincoln Fire and Rescue arrived
shortly thereafter and successfully suppressed the fire.
Cole left the scene of the fire prior to the arrival of emergency personnel because
he was aware of outstanding warrants for his arrest. After leaving Ragland’s apartment,
Cole asked Rice and Ragland to pick him up. Rice dropped off Ragland and Cole at a
friend’s house a few blocks away from the apartment. Cole remained at the friend’s house
while Ragland walked to the scene of the fire and spoke with law enforcement.
....
Surveillance footage from a neighboring building on October 10, 2020, showed
Cole pick up an item off the ground near a charcoal grill outside of Ragland’s apartment
unit. Rice testified that Ragland and Cole had previously stored lighter fluid next to the
grill and that the item Cole picked up from near the grill “would have to [have been] lighter
fluid.” Ragland and Cole testified that they stored the lighter fluid in the garage. Cole
testified that surveillance footage showed him picking up a water bottle which only
contained water. Fire Marshal Thomas Schmidt, who was qualified as an expert fire
inspector at trial, stated that he did not find any remnants of a lighter fluid bottle in the
apartment or near the grill.
Ragland testified that she frequently filled a torch with butane while sitting on the
couch in her apartment, sometimes spraying excess butane onto the couch. She further
stated that she habitually lit incense, which she described as “almost like ... a punk for
fireworks,” and she placed them between couch cushions, among various other locations
throughout her apartment. She surmised that a previous fire that had started on the same
couch was ignited by her incense; the previous fire took place in September 2020. She
noted that at that time firefighters had advised her to dispose of the burned couch cushions
because they were “more flammable” due to the release of certain oils in the microfibers
of the couch. She stated that she was “sure” she placed incense in the couch on the day of
the October 10th fire.
Id. at *1–2.
Additionally, “Fire Marshal Schmidt testified that he employed a systematic fire
investigation approach to determine that the fire originated on the couch in the living room and
that the fire “had to [have been] ignited by human hands.” Id. at *3 (brackets in original).
. DIRECT APPEAL
Cole, with new counsel, filed a direct appeal claiming that the evidence was insufficient to
sustain his conviction, his trial counsel was ineffective for failing to challenge the lack of evidence
regarding a material element of the crime, and his sentence was excessive. This court affirmed
Cole’s conviction and sentence on direct appeal and found that his ineffective assistance of trial
counsel claim failed. See [CITATION].
. POSTCONVICTION
On April 4, 2023, Cole, pro se, filed a verified motion for postconviction relief. In his
motion, Cole alleged defects in the information, errors in the jury instructions, and the ineffective
assistance of both trial and appellate counsel. Specifically, he alleged that his trial counsel was
ineffective because counsel failed to: (1) object to specified jury instructions; (2) failed to
“interview and investigate” five named witnesses (Ashley Rice, Shelby Marshall, Melissa Leuty,
Tyronn Blueford, and Frankie Mason) and the named victim (Jordan Ragland) who all “would
have testified that they did not see . . . Cole start any fire”; (3) request “independent testing of a
water bottle located by Lincoln Fire and Rescue Investigator Schmi[d]t, containing an unknown
liquid, which would have concluded that the unknown liquid was in fact water”; and (4) file a
motion to quash the information which was not sworn to under oath by the deputy Lancaster
County attorney. Cole also alleged that his appellate counsel was ineffective because appellate
counsel failed to assign as error on direct appeal: (1) the foregoing claims of ineffective assistance
of trial counsel; and (2) the “plain error” by the district court regarding its failure to improperly
instruct the jury in specified ways.
A brief hearing on Cole’s motion was held on August 23, 2023. Both the State and Cole
appeared by video conference. Cole had “no new evidence,” but made a personal address to the
court stating that he had “learned to be accountable” and “made a lot of changes to [his] life and
accepted [his] flaws and promise[d] not to go down this road again.” The State submitted on its
brief.
In its order entered on October 2, 2023, the district court denied Cole’s motion for
postconviction relief without an evidentiary hearing. The court found that the information filed by
the State met the Constitutional requirements of an information or indictment because it was
sufficient to put Cole on notice of the charge against him, prepare his defense, and plead the
judgment as a bar against future conviction. Regardless, Cole waived any defect in the information
by proceeding to trial without contesting it. The court found that Cole’s claims against his trial
counsel were procedurally barred because they could have been raised on direct appeal. The court
found that Cole’s appellate counsel was not ineffective for failing to assign as error trial counsel’s
failure to object to jury instructions, interview witnesses, independently test evidence, or file a
motion to quash the information.
Regarding Cole’s claims against appellate counsel, the district court specifically found the
following. The jury was properly instructed. As to trial counsel failing to interview and investigate
potential witnesses, the court noted that Cole started a fire inside of an apartment with no one else
there; no testimony was elicited during trial that anyone saw him start the fire. Further, three of
the named witnesses (Ragland, Rice, and Marshall) testified at trial and were cross-examined, and
none testified that they saw Cole start the fire. Cole did not provide any information on the other
three named witnesses (Leuty, Blueford, and Mason)--whether they would have had an
opportunity to observe the incident, or how their testimony would have changed the outcome of
the case when Cole had been in an argument with the owner of the apartment, was on video alone
at the apartment when the fire broke out, sent the victim a picture of the fire, and made minimal
efforts to put out the fire or contact emergency services. The court pointed out, “Because [Cole]
was alone in a small apartment when he started a fire, it is not surprising that a multitude of
witnesses could testify that they did not see [Cole] start the fire.”
Regarding Cole’s claim that an independent test of the water bottle would have concluded
that the substance was water, the district court found this claim to be conclusory. The court stated
that Cole did not articulate how this would have changed the outcome of the case, and the claim
“also clearly contravenes the record” because “Fire Investigator Schmidt also testified that the
contents [of the water bottle] were later analyzed at a laboratory and found to be a medium
petroleum distillate ignitable liquid.” The court added that “even if the substance had been
independently tested and found to have been water[,] it would not have changed the outcome of
the case” since Cole was “still the only person on video in the apartment at the time the fire was
started” and he sent a picture of the fire to Ragland and made minimal efforts to put the fire out or
call emergency services.
Finally, as to the alleged ineffectiveness of trial counsel for failing to file a motion to quash
the information, the district court found that the information contained a verification and oath, and
therefore the record affirmatively refuted Cole’s claims to the contrary. The court stated,
The record clearly shows that [Cole’s] trial counsel was not ineffective for failing
to object to jury instructions, interview witnesses, get independent testing of evidence, or
object to the Information in this case. Even if [Cole’s] trial counsel was ineffective, [he]
has not shown that he was so prejudiced that there would have been a different result in
this case. [Cole’s] Appellate counsel was, therefore, not ineffective for failing to raise these
issues on appeal.
[SEGMENT 2]
Cole appeals.
III. ASSIGNMENT OF ERROR
Cole assigns that the district court erred in denying his motion for postconviction relief
without an evidentiary hearing.
IV. STANDARD OF REVIEW
When a district court denies postconviction relief without conducting an evidentiary
hearing, an appellate court determines de novo whether the petitioner has alleged facts that would
support the claim and, if so, whether the files and records affirmatively show that he or she is
entitled to no relief. [CITATION]
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law. Id. When reviewing a question of law, an appellate court reaches a conclusion independent
of the lower court’s ruling. Id.
V. ANALYSIS
. GENERAL PRINCIPLES OF LAW
Postconviction relief is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or her constitutional rights
such that the judgment was void or voidable. Id. Thus, in a motion for postconviction relief, the
defendant must allege facts which, if proved, constitute a denial or violation of his or her rights
under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or
voidable. [CITATION] The district court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion contains factual allegations which, if
proved, constitute an infringement of the defendant’s rights under the state or federal
Constitution. Id.
However, the allegations in a motion for postconviction relief must be sufficiently specific
for the district court to make a preliminary determination as to whether an evidentiary hearing is
justified. Id. An evidentiary hearing is not required on a motion for postconviction relief when (1)
the motion does not contain factual allegations which, if proved, constitute an infringement of the
movant’s constitutional rights rendering the judgment void or voidable; (2) the motion alleges only
conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show
that the defendant is entitled to no relief. Id.
To prevail on a claim of ineffective assistance of counsel under [CITATION], 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. [CITATION] To show that counsel’s performance was deficient,
the defendant must show counsel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. Id. To show prejudice under the prejudice component of
the [CITATION] test, the defendant must demonstrate a reasonable probability that but for his or her
counsel’s deficient performance, the result of the proceeding would have been different. [CITATION] A reasonable probability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the outcome. Id. The likelihood of a different
result must be substantial, not just conceivable. Id. The two prongs of this test may be addressed
in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption
that counsel’s actions were reasonable. Id.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Cole assigns that the district court erred by denying his claims of ineffective assistance of
counsel without conducting an evidentiary hearing. The argument section of Cole’s brief focuses
on the district court’s determination that his claims against trial counsel are procedurally barred,
and that appellate counsel was not ineffective for failing to assign as error trial counsel’s failure to
interview and investigate witnesses, or to independently test evidence.
While Cole inserted one sentence referring to trial counsel not objecting to jury instructions
and not filing a motion to quash the information, he does not provide any further discussion or
argument as to those claims and we therefore will not address them. See [CITATION] (alleged error must be both specifically assigned and specifically
argued; conclusory assertions unsupported by coherent analytical argument fail to satisfy
requirement of arguing assigned error to obtain consideration by appellate court).
(a) Trial Counsel
On direct appeal, Cole, represented by new counsel, claimed that his trial counsel was
ineffective for failing to challenge the lack of evidence regarding a material element of the crime.
We concluded that claim failed. See [CITATION] (selected for posting to court website).
In his pro se motion for postconviction relief, Cole claimed for the first time that his trial
counsel was ineffective because counsel failed to: (1) object to specified jury instructions; (2)
“interview and investigate” five named witnesses (Rice, Marshall, Leuty, Blueford, and Mason)
and the named victim (Ragland) who all “would have testified that they did not see . . . Cole start
any fire”; (3) request “independent testing of a water bottle located by Lincoln Fire and Rescue
Investigator Schmi[d]t, containing an unknown liquid, which would have concluded that the
unknown liquid was in fact water”; and (4) file a motion to quash the information which was not
sworn to under oath by the deputy Lancaster County attorney.
We agree with the district court that Cole’s postconviction relief claims against trial
counsel are procedurally barred because they were not brought on direct appeal. When a
defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must
raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. [CITATION].
(b) Appellate Counsel
In contrast, this postconviction proceeding was Cole’s first opportunity to assert that his
appellate counsel was ineffective. A claim of ineffective assistance of appellate counsel which
could not have been raised on direct appeal may be raised on postconviction review. [CITATION]. However, we find that the district court did not err in
denying, without an evidentiary hearing, Cole’s claim for postconviction relief based on the
alleged ineffective assistance of appellate counsel.
Again, we note that the argument section of Cole’s brief focuses on the district court’s
decision regarding appellate counsel failing to assign as error trial counsel’s failure to interview
and investigate witnesses, or to independently test evidence. We limit our focus accordingly.
(i) Witnesses
Cole claims that his appellate counsel was ineffective for failing to assign as error on direct
appeal trial counsel’s ineffective assistance in failing to “interview and investigate” five named
witnesses (Rice, Marshall, Leuty, Blueford, and Mason) and the named victim (Ragland) who all
“would have testified that they did not see . . . Cole start any fire.”
When a claim of ineffective assistance of appellate counsel is based on the failure to raise
a claim on appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance
of counsel), an appellate court will look at whether trial counsel was ineffective under the
Strickland test. [CITATION]. If trial counsel was not
ineffective, then the defendant was not prejudiced by appellate counsel’s failure to raise the
issue. [CITATION]. Much like claims of ineffective assistance of trial counsel, the defendant must show that
but for appellate counsel’s failure to raise the claim, there is a reasonable probability that the
outcome would have been different. [CITATION].
As this court stated on direct appeal,
Fire Marshal Schmidt testified that he employed a systematic fire investigation
approach to determine that the fire originated on the couch in the living room and that the
fire “had to [have been] ignited by human hands.” It was also demonstrated that Cole was
the only person in Ragland’s apartment at the time the fire started. Moreover, Rice,
Ragland, and Cole testified that the morning of the fire, Ragland and Cole had been arguing
about Cole’s alleged infidelity. Following this disagreement, Cole had been “blowing up”
Ragland’s phone but did not receive many responses from her. Then, approximately 10
minutes after she left the apartment, Ragland received a Snapchat video from Cole showing
her couch on fire.
[CITATION].
The evidence presented at trial showed that Cole was the only person in the apartment at
the time the fire started, and that the fire was started by human hands. Having six people who, as
Cole claimed, “would have testified that they did not see . . . [Cole] start any fire” would not have
undermined confidence in the outcome of this case, thus Cole cannot show prejudice by any
alleged deficiency by trial counsel. Because Cole could not show that trial counsel was ineffective
for failing to interview and investigate the named persons, Cole was not prejudiced by appellate
counsel’s failure to raise the claim. See [CITATION].
(ii) Water Bottle
Cole also claims that his appellate counsel was ineffective for failing to assign as error on
direct appeal trial counsel’s ineffective assistance in failing to request “independent testing of a
water bottle located by Lincoln Fire and Rescue Investigator Schmi[d]t, containing an unknown
liquid, which would have concluded that the unknown liquid was in fact water.”
Fire Marshall Schmidt testified at trial that the contents of the water bottle were analyzed
at a laboratory and found to be a medium petroleum distillate ignitable liquid. Thus, Cole’s claim
that the water bottle contained only water was contradicted by the record. Regardless, whether or
not the water bottle contained only water or some other liquid would not have undermined
confidence in the outcome of this case. As stated above, the evidence presented at trial was that
[SEGMENT 3]
Cole was the only person in the apartment at the time the fire started, and that the fire was started
by human hands. Thus, Cole cannot show prejudice by any alleged deficiency by trial counsel.
Because Cole could not show that trial counsel was ineffective for failing to request independent
testing of the water bottle, Cole was not prejudiced by appellate counsel’s failure to raise the claim.
See [CITATION].
VI. CONCLUSION
For the reasons stated above, we find that Cole’s claims that trial counsel was ineffective
are procedurally barred, and his claims that appellate counsel was ineffective fail. Accordingly,
we affirm the decision of the district court denying Cole’s motion for postconviction relief without
an evidentiary hearing.
AFFIRMED.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/19/2024 09:09 AM CDT
- 174 -
Nebraska Supreme Court Advance Sheets
Nebraska Reports
STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
State of Nebraska, appellee, v. Rosario
Betancourt-Garcia, appellant.
___ N.W.3d ___
Filed July 19, 2024. No. S-23-738.
. Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
dentiary hearing on a motion for postconviction relief, the trial judge,
as the trier of fact, resolves conflicts in the evidence and questions of
fact. An appellate court upholds the trial court’s findings unless they are
clearly erroneous.
. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law
and fact. When reviewing a claim of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower court for
clear error. With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test articulated in
[CITATION], an appellate court reviews such legal determinations inde-
pendently of the lower court’s decision.
. Criminal Law: Evidence: Proof. To establish an alibi defense, a
defendant must show (1) he or she was at a place other than where the
crime was committed and (2) he or she was at such other place for such
a length of time that it was impossible to have been at the place where
and when the crime was committed.
. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise
a claim on direct appeal of ineffective assistance of trial counsel (a
layered claim of ineffective assistance of counsel), an appellate court
will first look at whether trial counsel was ineffective under the test in
[CITATION]. If trial counsel was not ineffective, then the defendant was
not prejudiced by appellate counsel’s failure to raise the issue. - 175 -
Nebraska Supreme Court Advance Sheets
Nebraska Reports
STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
5. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a
claim of ineffective assistance of counsel under [CITATION], the defendant
must show that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s defense.
6. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
7. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice in a claim of ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confi-
dence in the outcome.
8. Trial: Effectiveness of Counsel: Appeal and Error. A reasonable stra-
tegic decision to present particular evidence, or not to present particular
evidence, will not, without more, sustain a finding of ineffective assist
ance of counsel. Strategic decisions made by trial counsel will not be
second-guessed so long as those decisions are reasonable.
9. Rules of Evidence: Impeachment: Prior Statements. Prior inconsist
ent statements are admissible as impeachment evidence, but they are not
admissible as substantive evidence unless they are otherwise admissible
under the Nebraska Evidence Rules.
10. Actions: Appeal and Error. Unlike the doctrines of claim preclusion
and issue preclusion, which involve successive lawsuits, the law-of-the-
case doctrine involves successive stages of one continuing lawsuit.
11. ____: ____. When it applies, the law-of-the-case doctrine operates to
preclude reconsideration of substantially similar, if not identical, issues
at successive stages of the same suit or prosecution.
12. ____: ____. The law-of-the-case doctrine promotes judicial efficiency
and protects parties’ settled expectations by preventing parties from
relitigating settled issues within a single action.
Appeal from the District Court for Madison County, Mark
A. Johnson, Judge. Affirmed.
Jack W. Lafleur, of Moyer, Moyer & Lafleur, for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee. - 176 -
Nebraska Supreme Court Advance Sheets
Nebraska Reports
STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Funke, J.
INTRODUCTION
This appeal arises from a petition for postconviction relief
filed by Rosario Betancourt-Garcia (Betancourt). After an
evidentiary hearing, the district court for Madison County,
Nebraska, granted Betancourt relief in the form of corrected
sentences for two of his convictions. But the district court
denied Betancourt’s claim that his appellate counsel was
ineffective for failing to raise a claim on direct appeal that
his trial counsel were ineffective in their handling of his
alibi defense and his “misidentification defense.” Betancourt
appeals that ruling and also argues that he was entitled to an
evidentiary hearing on other claims of ineffective assistance
of counsel. Because the district court did not err in finding
that trial counsel made a reasonable strategic decision in their
handling of the purported defenses, and because Betancourt’s
other claims either resulted in relief or are precluded under
the law-of-the-case doctrine, we affirm.
BACKGROUND
This is the fourth time that we have opined on matters
related to Betancourt’s convictions. [CITATION] The following summary of
the proceedings to date is based on our prior opinions.
Convictions and Direct Appeal
Betancourt was convicted of kidnapping, use of a firearm
to commit a felony, and conspiracy to commit kidnapping
after his nephew was found bound and gagged in Madison,
[CITATION] - 177 -
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STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
Nebraska, on November 15, 2003. Betancourt was subse-
quently arrested in Texas, but he did not stand trial until over
a decade later. At trial, Betancourt testified that he was work-
ing 6 days a week or more in Houston, Texas, at the time
of the offenses. However, Betancourt’s nephew testified that
Betancourt was one of two men who kidnapped and threat-
ened to kill him and left him bound and gagged in a shed near
Betancourt’s former house. The other man involved in the
kidnapping also testified to Betancourt’s involvement.
Betancourt was sentenced to consecutive terms of life
imprisonment for kidnapping and 10 to 30 years’ imprison-
ment, including a mandatory minimum of 5 years’ imprison-
ment, for use of a weapon to commit a felony. Further, the
district court treated the conspiracy conviction as a Class II
felony and sentenced Betancourt to 30 to 50 years’ imprison-
ment, to be served concurrently with the other sentences.
Betancourt appealed his convictions and sentences, argu-
ing that the district court erred in several regards and that
he received ineffective assistance of counsel. We rejected
those arguments. We also declined to consider Betancourt’s
argument that his trial counsel were ineffective in failing to
investigate, develop, and present exculpatory evidence to sup-
port his alibi defense, because that claim was not assigned in
his brief on appeal. But we found plain error in Betancourt’s
sentence for the conspiracy conviction, which was inconsist
ent with the statutory framework. As such, we vacated that
sentence and remanded the matter to the district court with
directions to resentence Betancourt to “life imprisonment”
for conspiracy.
On remand, Betancourt was resentenced, without objection,
to “life imprisonment without parole.”
2
See, e.g., [CITATION] (to be
considered by appellate court, error must be both specifically assigned and
specifically argued in brief of party asserting error). - 178 -
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Cite as [CITATION]
Motion for Postconviction Relief and Appeal
of Denial of Evidentiary Hearing
Betancourt then filed a verified petition for postconviction
relief. In that petition, Betancourt alleged that his appellate
counsel on direct appeal was ineffective for failing to raise
several claims of ineffective assistance of trial counsel (lay-
ered claims of ineffective assistance of counsel). The district
court granted an evidentiary hearing on Betancourt’s layered
claims of ineffective assistance of counsel, based on the fail-
ure to assert an alibi defense, pursuit of a “misidentification
defense,” and failure to object to Betancourt’s sentence for
use of a firearm to commit a felony, which should not have
included a mandatory minimum. But the district court denied
Betancourt’s remaining claims without an evidentiary hear-
ing on the grounds that they were insufficiently alleged, were
affirmatively refuted by the evidence in the record, or were
not examples of ineffective assistance of counsel.
Betancourt appealed the district court’s order denying him
an evidentiary hearing on his remaining claims. On appeal,
we affirmed that order except as to Betancourt’s claim that
appellate counsel, while serving as trial counsel upon remand
for resentencing on the conspiracy conviction, was ineffec-
tive for not objecting to the imposition of a sentence of “life
imprisonment without parole.” Because that sentence was not
a valid sentence, we remanded the cause to the trial court for
a hearing on Betancourt’s sentence for conspiracy.
Evidentiary Hearing
On remand, the district court held an evidentiary hearing
on Betancourt’s layered claims of ineffective assistance of
counsel regarding his (1) alibi defense, (2) “misidentification
defense,” (3) sentence for use of a firearm to commit a felony,
and (4) sentence for conspiracy. Betancourt testified at the
hearing, as did four of the five attorneys (Attorneys 1 through
5) who represented him in these proceedings. That testimony
is summarized below as it relates to the parties’ arguments
on appeal. - 179 -
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[CITATION]
Cite as 317 Neb. 174
Betancourt testified that he moved to Houston 20 days
or more before the offenses and that he was working in
Houston on November 15, 2003. Betancourt also testified that
he advised counsel that his former employer and an employee
of his former landlord (the Texas witnesses) were willing and
able to testify to that effect. Betancourt similarly testified
that he informed counsel that his former neighbor in Madison
“could testify” that Betancourt had not lived there “for sev-
eral months” before the offenses. According to Betancourt,
Attorney 2 spoke with the Texas witnesses and learned that
their testimony would have been “practically” the same as his.
Betancourt acknowledged that he later learned that the Texas
witnesses stated they could not place him in Texas on the date
of the offenses and also resisted testifying. But Betancourt
opined that this was because counsel “threatened” to “put
[one of the witnesses] in jail to ensure [her] testimony in the
trial” and that “[n]o attorney does that.” Otherwise, Betancourt
maintained that the Texas witnesses were “still willing” to tes-
tify on his behalf.
Attorney 2 did not testify at the hearing. However, the other
attorneys all described difficulties in identifying or obtaining
testimony from the Texas witnesses, in particular.
Attorney 1, the public defender who represented Betancourt
before he hired Attorney 2, testified that Betancourt “didn’t
have firm dates or people” in terms of his alibi. Attorney 1
described working with Betancourt to “try[] to get somebody”
and “attempt[ing] to contact people.” But Attorney 1 stated
that he ultimately never “got ahold of anybody” who could
corroborate that Betancourt was elsewhere at the time of
the offenses.
Attorney 3, the public defender who represented Betancourt
after Attorney 2 withdrew, testified that he spoke with the
Texas witnesses and that they could not testify that Betancourt
was in Texas on November 15, 2003. Attorney 3 admitted to
telling the landlord’s employee that she could be “brought to
Nebraska . . . through law enforcement” to testify if necessary. ```plaintext
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[CITATION]
Cite as 317 Neb. 174
But Attorney 3 testified that even before he told her this and
she became uncooperative, she failed to provide any informa-
tion beneficial to Betancourt’s defense. According to Attorney
3, he eventually discussed the matter with Betancourt and
informed him that given the prospective witness’ inability to
provide an alibi and her reluctance to testify, “it wouldn’t be
beneficial to bring her up here forcibly because that would
just make things worse for her testimony.”
Attorney 3 testified similarly that he did not attempt to
depose the landlord’s employee, because even if she had
testified that Betancourt was in Texas before and after the
offenses, that information would not have been helpful to the
case, because the testimony at the trial was going to be that
Betancourt and the codefendant “left Nebraska and traveled
. . . down to Kansas or down to Texas” immediately after
the offenses. As such, Attorney 3 reasoned that the “best
trial defense” was to put Betancourt “somewhere else on the
date of the incident rather than other days in November.” In
particular, Attorney 3 noted the danger of the witness’ being
called and “corroborating the co-defendant.”
Attorney 3’s deputy, Attorney 4, also testified that the Texas
witnesses could not place Betancourt in Texas on November
15, 2003, or for such a length of time that it was impossible
for him to have been in Madison when the offenses were
committed. Further, Attorney 4 testified that the landlord’s
employee hired an attorney “to try to avoid coming up to
testify” and that due to the passage of time, Betancourt’s for-
mer employer no longer had the paperwork pertaining to his
employment. According to Attorney 4, she was concerned that
“forcibly [bringing the Texas witnesses] up . . . might make
it get worse,” and her superior, Attorney 3, discussed the
“dangers of an alibi defense” with Betancourt. But Attorney 4
acknowledged that Betancourt’s claim that he was misidenti-
fied was “essentially the same” as his alibi defense. Attorney
4 testified that it would have been “very difficult” to argue
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Cite as 317 Neb. 174
that Betancourt was misidentified without alibi witnesses,
given that his nephew and codefendant had identified him.
Attorney 4 also acknowledged that Betancourt’s former
neighbor in Madison was not called to testify at the trial
despite her affidavit stating that as of November 15, 2003,
Betancourt “had not been living at his house for at least three
months.” However, Attorney 4 indicated that she viewed this
information as consistent with the State’s evidence at trial
that Betancourt “had not lived in that house for an extended
period.”
Attorney 5, who represented Betancourt on appeal, testified
that he did not consider trying to “make an appeal issue” out
of the failure to call the Texas witnesses, because he did not
see “any merit” to a claim based on trial counsel’s failure to
“call an unhelpful witness who refused to testify.” Attorney 5
also testified that he reviewed his recommendations regard-
ing “what . . . would be [a] good appeal” with Betancourt
and that Betancourt was “okay with it.” But Betancourt testi-
fied in rebuttal that he “wanted” Attorney 5 to “raise the alibi
defense” on appeal.
Order Following Evidentiary Hearing
The district court subsequently issued an order correcting
Betancourt’s sentences and resentencing him to 10 to 30 years’
imprisonment for use of a firearm to commit a felony and to
life imprisonment for conspiracy to commit kidnapping. But
the district court denied Betancourt’s claims as to his alibi
defense and “misidentification defense,” which it essentially
treated as a single claim involving the Texas witnesses.
The district court reasoned that calling the Texas witnesses
“presented a dilemma to the defense” because the witnesses
could not testify that Betancourt was in Texas on November
15, 2003, and they were unwilling to testify at all. The district
court also noted that even if Betancourt had called Attorney
2 to testify that the witnesses had stated otherwise to her, the
witnesses were not under oath when speaking to Attorney 2, - 182 -
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STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
and any impeachment testimony would not have been admis-
sible as substantive evidence to prove alibi or misidentifica-
tion. The district court thus concluded that the decision not
to pursue an alibi defense was a reasonable strategic deci-
sion and did not amount to ineffective assistance of counsel.
Accordingly, the district court found that Betancourt was not
prejudiced by appellate counsel’s failure to raise the issue.
Betancourt timely appealed, and we moved the matter to
our docket. 3
ASSIGNMENTS OF ERROR
Betancourt assigns, restated, that the district court erred in
denying his layered claims of ineffective assistance of counsel
related to his alibi defense and his “misidentification defense.”
Betancourt also assigns that the district court erred in denying
him an evidentiary hearing on an additional 16 layered claims
of ineffective assistance of counsel.
STANDARD OF REVIEW
[1] In an evidentiary hearing on a motion for postconvic-
tion relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact. [CITATION] An appellate
court upholds the trial court’s findings unless they are clearly
erroneous. [CITATION]
[2] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. [CITATION] When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. [CITATION] With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
3
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
4
[CITATION]
5
Id.
6
Id.
7
Id. - 183 -
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STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
articulated in [CITATION], an appellate court
reviews such legal determinations independently of the lower
court’s decision. [CITATION]
ANALYSIS
No Error as to Alibi and
Misidentification Defenses
[3] We begin with Betancourt’s argument that the district
court erred in denying his layered claims of ineffective assist
ance of counsel regarding his alibi defense and his “misiden-
tification defense.” We have recognized that the alibi defense
places a “heavy evidentiary burden” on the defendant. [CITATION] To
establish an alibi defense, a defendant must show (1) he or
she was at a place other than where the crime was committed
and (2) he or she was at such other place for such a length of
time that it was impossible to have been at the place where
and when the crime was committed. [CITATION] Misidentification, in
contrast, is not a defense with specific elements that must be
proved by the defendant. Betancourt raises separate assign-
ments of error regarding both alibi and misidentification.
However, his arguments on appeal and the evidence in the
record before us show that his concerns as to both alibi and
misidentification are similar—namely, trial counsel’s failure
to present evidence from witnesses who, Betancourt claims,
could have placed him elsewhere on November 15, 2003, or
other dates. As such, our analysis below pertains equally to
both defenses.
[4] When a claim of ineffective assistance of appellate
counsel is based on the failure to raise a claim on direct
appeal of ineffective assistance of trial counsel (a layered
[CITATION] - 184 -
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STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
claim of ineffective assistance of counsel), as is the case here,
an appellate court will first look at whether trial counsel was
ineffective under the test in Strickland. 12 If trial counsel was
not ineffective, then the defendant was not prejudiced by
appellate counsel’s failure to raise the issue. 13
[5-7] Generally, to prevail on a claim of ineffective assist
ance of counsel under Strickland, the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. 14 To show that counsel’s performance was defi-
cient, a defendant must show that counsel’s performance did
not equal that of a lawyer with ordinary training and skill
in criminal law. 15 To show prejudice in a claim of ineffec-
tive assistance of counsel, the defendant must demonstrate
a reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent. 16 A reasonable probability is a probability sufficient to
undermine confidence in the outcome. 17 A court may examine
performance and prejudice in any order and need not examine
both prongs if a defendant fails to demonstrate either. 18
Under the foregoing framework, Betancourt’s claim that
his appellate counsel was ineffective ultimately rests on his
argument that his trial counsel were ineffective in failing to
subpoena, depose, or obtain sworn statements from his former
employer, an employee of his former landlord, and his former
neighbor, each of whom he claims “could have” corroborated
he was elsewhere at the time of the offenses. 19 Betancourt
12
See [CITATION].
15
Id.
16
Id.
17
Id.
18
Id.
19
Brief for appellant at 20. - 185 -
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STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
argues that there was “[n]o reasonable strategic reason . . .
to not call these witnesses,” because such corroboration was
necessary to show an alibi or misidentification. 20 Betancourt
argues that absent corroboration, he “ended up with no cogent
defense.” 21 The State counters that trial counsel made a reason-
able strategic decision not to present the witnesses’ evidence,
because “none of those witnesses could actually provide an
alibi for Betancourt” and the Texas witnesses, in particular,
were “uncooperative.” 22 The State also argues that Betancourt
was not prejudiced by trial counsel’s failure to present the
evidence, because Betancourt’s nephew and codefendant other-
wise identified him as the perpetrator.
[8] When the evidence in the record before us is considered
under the standard of review previously noted, we agree with
the State that the district court did not err in finding that trial
counsel made a reasonable strategic decision not to subpoena,
depose, or obtain sworn statements from the witnesses and,
thus, were not ineffective. As we have explained, a reason-
able strategic decision to present particular evidence, or not
to present particular evidence, will not, without more, sustain
a finding of ineffective assistance of counsel. 23 Strategic deci-
sions made by trial counsel will not be second-guessed so long
as those decisions are reasonable. 24
The record here shows that the Texas witnesses, in par-
ticular, ultimately stated that they could not place Betancourt
in Texas at the time of the offenses, and they were unwill-
ing to testify. Attorneys 3 and 4 testified to this effect, and
Betancourt himself acknowledged that counsel had informed
him prior to trial that the Texas witnesses were unable to
place him in Houston on November 15, 2003, and that they
20
[CITATION] - 186 -
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STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
resisted testifying. Admittedly, Betancourt also testified that
this was because trial counsel “threatened” the witnesses and
that the witnesses otherwise were “still willing” to testify on
his behalf. However, the district court resolved any conflict
in the evidence here by finding the Texas witnesses could
not corroborate Betancourt’s claim that he was in Houston on
November 15 and they were unwilling to testify. Under the
standard of review previously noted, we find no clear error in
these findings. There was also evidence that trial counsel were
concerned that “forc[ing]” the witnesses to testify might make
things worse. In short, there was competent evidence in the
record supporting the district court’s decision.
Betancourt also points to the fact that the Texas witnesses
“could have” testified that he lived and worked in Texas before
and after the date of the offenses. 25 However, Betancourt
never identified any specific dates when he was in Texas
according to those witnesses. This lack of detail is signifi-
cant, given that the testimony at the trial was going to be that
Betancourt and the codefendant “left Nebraska and traveled
. . . down to Kansas or down to Texas” immediately after the
offenses. In fact, Attorney 3 testified that he was concerned
that the Texas witnesses could have ended up “corroborating
the co-defendant.”
[9] Betancourt’s claim that the Texas witnesses could have
been impeached about their prior inconsistent statements that
he was in Houston on November 15, 2003, is similarly with-
out merit. Betancourt takes issue with the district court’s
suggestion that under [CITATION], he might not have
25
Brief for appellant at 20.
26
[CITATION]. See, also,
[CITATION]. - 187 -
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Cite as 317 Neb. 174
been allowed to impeach the witnesses with those statements.
Betancourt maintains that the district court misconstrued Davis
and that impeachment would have been allowed here. We need
not resolve this dispute, because even if Betancourt is correct
that the Texas witnesses could have been impeached about
their prior statements, such evidence would have served only
to discredit his own witnesses. This is because when allowed
under Davis and related cases, prior inconsistent statements
are admissible as impeachment evidence, but they are not
admissible as substantive evidence unless they are otherwise
admissible under the Nebraska Evidence Rules. 27
The prior inconsistent statements in this case were allegedly
made in conversations with Attorney 2, and not under oath.
As such, they are hearsay. 28 Betancourt does not argue that
the statements are otherwise admissible under the Nebraska
Evidence Rules. 29 Thus, they would not have been admissible
as substantive evidence that he was in Houston on November
15, 2003. Instead, they would have served only to show that
the Texas witnesses—upon whose testimony Betancourt oth-
erwise hoped to rely to show that he was in Texas before and
after the date of the offenses—were not credible. 30
We take a similar view of the failure to present the evi-
dence of Betancourt’s former neighbor. Betancourt relies upon
an affidavit from the neighbor attached to his petition for
postconviction relief, wherein the neighbor states that on the
27
[CITATION]
28
See Clark, supra note 14 (hearsay is statement, other than one made by
declarant while testifying at trial or hearing, offered into evidence to prove
truth of matter asserted).
29
See Neb. Rev. Stat. §§ 27-802 to 27-806 (Reissue 2016).
30
Cf. [CITATION] (counsel not
ineffective for failing to call witnesses to impeach testimony of defendant’s
girlfriend where her prior inconsistent statements could not have been
used as substantive evidence that she did not pick him up after robbery or
that he did not hand her gun, but, rather, would have been limited solely
to discrediting her). - 188 -
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Cite as 317 Neb. 174
night in question, she observed three to five men “getting out
of cars” at Betancourt’s former residence. The neighbor also
stated that the residence had been vacant for at least 3 months
and that after Betancourt’s family moved away, she never
saw him again. On appeal, Betancourt argues that testimony
by his former neighbor to this effect at the trial would have
supported his claims of alibi and misidentification, apparently
by showing he was not one of the men she saw on November
15, 2003. However, the neighbor also stated that she observed
the events in the dark from across the street, and she gave
no indication that she was able to identify the men as not
being Betancourt.
Betancourt’s remaining argument, regarding the “striking” 31
similarities between his case and [CITATION], 32 is similarly
without merit. The defendant in [CITATION] moved to vacate and
set aside his judgment and conviction on the ground that
his trial counsel was ineffective for failing to interview and
subpoena witnesses known to counsel who would have cor-
roborated the defendant’s version of events. 33 We agreed that
the defendant’s counsel “failed to perform a function which a
reasonably competent attorney would perform,” and, as such,
we remanded the cause for a new trial. 34
Betancourt seemingly construes [CITATION] to mean that the fail-
ure to subpoena the witnesses, in and of itself, was deficient
performance; he argues that insofar as he wanted the witnesses
to testify, counsel should have “honor[ed his] requests.” 35
However, the specific defect that we noted in counsel’s
performance in [CITATION] was the failure to investigate. Because
the counsel in [CITATION] did not interview the witnesses, he was
unaware they had evidence that contradicted the State’s theory
31
Brief for appellant at 20.
32
[CITATION]
33
Id.
34
Id. at 16, 272 N.W.2d at 779.
35
Brief for appellant at 18. - 189 -
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[CITATION]
Cite as [CITATION]
of the case. Here, in contrast, all of Betancourt’s attorneys,
except for Attorney 1, were aware of the identity of his pro-
posed witnesses and the testimony he hoped to elicit from them.
Betancourt did testify at the evidentiary hearing that Attorney
1 was remiss in investigating because he did “[n]othing” with
the information Betancourt gave him about the Texas wit-
nesses. However, Attorney 1 testified that Betancourt “didn’t
have firm dates or people” and that Attorney 1 attempted to
contact people, but ultimately failed.
Because Betancourt’s trial counsel made a reasonable stra-
tegic decision not to subpoena, depose, or obtain sworn state-
ments from his witnesses, Betancourt was not prejudiced by
appellate counsel’s failure to raise the issue on direct appeal.
As such, Betancourt’s argument that the district court erred
in denying his layered claims of ineffective assistance of
counsel regarding his alibi defense and his “misidentification
defense” is without merit.
Remaining Claims Addressed or Precluded
We next turn to Betancourt’s argument that the district court
erred in denying him an evidentiary hearing on an additional
16 layered claims of ineffective assistance of counsel.
The record on appeal shows that one of those claims, regard-
ing trial counsel’s failure to object to Betancourt’s sentence
of “life imprisonment without parole” for conspiracy to com-
mit kidnapping, was actually heard by the district court. The
district court sustained Betancourt’s petition on that claim and
resentenced him to “life imprisonment.”
As to the other 15 claims, we previously found that
Betancourt was not entitled to an evidentiary hearing on those
claims when we affirmed, in relevant part, the district court’s
order denying him such a hearing. As a result, the law-of-the-
case doctrine precludes reconsideration of the claims here.
[10-12] Unlike the doctrines of claim preclusion and issue
preclusion, which involve successive lawsuits, the law-of-the-
case doctrine involves successive stages of one continuing - 190 -
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Cite as 317 Neb. 174
lawsuit. 36 When it applies, the law-of-the-case doctrine oper-
ates to preclude reconsideration of substantially similar, if
not identical, issues at successive stages of the same suit or
prosecution. 37 The doctrine promotes judicial efficiency and
protects parties’ settled expectations by preventing parties from
relitigating settled issues within a single action. 38
We have previously recognized certain exceptions to the
law-of-the-case doctrine, where “‘considerations of substantial
justice suggest a reexamination of the issue is warranted,’”
where materially and substantially different facts are pre-
sented, or where the applicable law has changed. 39 However,
nothing in the record before us suggests that any such excep-
tion applies here.
CONCLUSION
The trial court did not err in denying Betancourt’s peti-
tion for postconviction relief, because trial counsel’s decision
not to subpoena, depose, or obtain sworn statements from
Betancourt’s proposed witnesses was a reasonable strategic
decision and, thus, did not constitute ineffective assistance.
As such, Betancourt was not prejudiced by appellate coun-
sel’s failure to raise the issue on direct appeal. Additionally,
Betancourt’s other claims of ineffective assistance of counsel
either resulted in relief or are precluded under the law-of-
the-case doctrine. Accordingly, we affirm the order of the
district court.
Affirmed.
Freudenberg, J., not participating.
36
[CITATION]
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2024 06:08 PM CDT
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[CITATION]
Cite as 316 Neb. 777
Elaine Clemens, appellant, v. Curtis Emme,
Personal Representative of the Estate of
Arthur D. Emme, deceased, appellee.
___ N.W.3d ___
Filed June 7, 2024. No. S-23-146.
. Judgments: Estoppel: Appeal and Error. An appellate court reviews a
court’s application of judicial estoppel to the facts of a case for abuse of
discretion and reviews its underlying factual findings for clear error.
[SEGMENT 7]
. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit evi-
dence over a hearsay objection or exclude evidence on hearsay grounds.
. Directed Verdict: Evidence: Appeal and Error. A directed verdict is
proper only when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be decided
as a matter of law. In reviewing that determination, an appellate court
gives the nonmoving party the benefit of every controverted fact and all
reasonable inferences from the evidence.
. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
. Judgments: Verdicts. To sustain a motion for judgment notwithstand-
ing the verdict, the court resolves the controversy as a matter of law and
may do so only when the facts are such that reasonable minds can draw
but one conclusion.
. ____: ____. On a motion for judgment notwithstanding the verdict, the
moving party is deemed to have admitted as true all the relevant evi-
dence admitted that is favorable to the party against whom the motion
is directed, and, further, the party against whom the motion is directed
is entitled to the benefit of all proper inferences deducible from the rel-
evant evidence. - 778 -
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Nebraska Reports
[CITATION]
Cite as 316 Neb. 777
7. Motions for New Trial: Appeal and Error. An appellate court reviews
the denial of a motion for new trial for an abuse of discretion.
8. Equity: Estoppel. Judicial estoppel is an equitable doctrine that a court
invokes at its discretion to protect the integrity of the judicial process.
9. Estoppel. The doctrine of judicial estoppel protects the integrity of the
judicial process by preventing a party from taking a position inconsistent
with one successfully and unequivocally asserted by the same party in a
prior proceeding.
10. ____. Judicial estoppel is to be applied with caution so as to avoid
impinging on the truth-seeking function of the court, because the doc-
trine precludes a contradictory position without examining the truth of
either statement.
11. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
12. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
13. ____: ____: ____. The exclusion of evidence is ordinarily not prejudi-
cial where substantially similar evidence is admitted without objection.
14. Trial: Evidence: Testimony. Where the information contained in an
exhibit is, for the most part, already in evidence from the testimony of
witnesses, the exclusion of the exhibit is not prejudicial.
15. Partnerships: Intent. Being “co-owners” of a business for profit does
not refer to the co-ownership of property, but to the co-ownership of the
business intended to garner profits.
16. Partnerships: Words and Phrases. Co-ownership distinguishes part-
nerships from other commercial relationships such as creditor and
debtor, employer and employee, franchisor and franchisee, and landlord
and tenant.
17. Partnerships. Co-ownership generally addresses whether the parties
share the benefits, risks, and management of the enterprise such that
(1) they subjectively view themselves as members of the business rather
than as outsiders contracting with it and (2) they are in a better position
than others dealing with the firm to monitor and obtain information
about the business.
18. Partnerships: Proof. The objective indicia of co-ownership are com-
monly considered to be: (1) profit sharing, (2) control sharing, (3) loss
sharing, (4) contribution, and (5) co-ownership of property. The five
indicia of co-ownership are only that; they are not all necessary to estab-
lish a partnership relationship, and no single indicium of co-ownership
is either necessary or sufficient to prove co-ownership. - 779 -
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Cite as [CITATION]
19. ____: ____. The party asserting the partnership relationship exists
has the burden of proving that relationship by a preponderance of the
evidence.
20. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admis-
sion, as a formal act done in the course of judicial proceedings, is a
substitute for evidence and thereby waives and dispenses with the pro-
duction of evidence by conceding for the purpose of litigation that the
proposition of fact alleged by an opponent is true.
21. Pleadings: Intent. Judicial admissions must be deliberate, clear, and
unequivocal, and they do not extend beyond the intent of the admission
as disclosed by its context.
Appeal from the District Court for Holt County, Mark D.
Kozisek, Judge. Affirmed.
Frederick T. Bartell, of Fitzgerald, Vetter, Temple, Bartell &
Henderson, for appellant.
Tracey L. Buettner, of Stratton, DeLay, Doele, Carlson,
Buettner & Stover, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
I. INTRODUCTION
This case concerns an alleged business partnership between
the appellant and the decedent, who were also intimate part-
ners, but who never married. After the jury found against the
appellant as to the existence of a business partnership, the
district court for Holt County, Nebraska, entered a judgment
against her and in favor of the personal representative of the
decedent’s estate. The appellant challenges the jury’s verdict,
as well as several rulings by the district court. Finding no error,
we affirm.
II. BACKGROUND
. Factual Background
The decedent, Arthur Emme (Butch), established O’Neill
Body and Frame in O’Neill, Nebraska, in 1978. Butch’s - 780 -
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CLEMENS V. EMME
Cite as 316 Neb. 777
then-wife acted as his bookkeeper. She filed for divorce
in 1990.
Around that time, the appellant, Elaine Clemens, began
working at O’Neill Body and Frame. Clemens and Butch later
became intimately involved. They moved in together in 1992.
Thereafter, Clemens and Butch lived together while working
together at O’Neill Body and Frame and at other ventures,
including O’Neill Truck Service, two apartment complexes,
and cattle and ranching operations.
Clemens and Butch had a falling out in March 2015. Clemens
alleges that Butch subsequently closed or removed her name
from several bank accounts.
Butch died on June 14, 2017. Butch’s last will and testament
left the bulk of his estate to his son, Curtis Emme (Emme), who
was appointed copersonal representative of the estate. Randy
Hupp, Butch’s friend and former banker, was also appointed
copersonal representative of the estate but later resigned from
that position. Hupp is not a party to the present appeal.
. Clemens Files Suit Seeking Declaration
That Partnership Existed
On August 24, 2017, Clemens filed suit against Emme and
Hupp, as the copersonal representatives of Butch’s estate,
alleging that she and Butch created a business partnership in
1992. Clemens acknowledged that the partnership did not use
a name and was not memorialized in a written agreement,
but she alleged that it continued until Butch dissociated from
it due to his death. [CITATION] Clemens further alleged that before his
death, Butch breached his duties of loyalty and care to the
partnership. Clemens sought a declaration that a business
partnership existed between her and Butch, with each own-
ing equal interests in the partnership. Clemens also sought an
order accounting for and settling partnership assets and debts
[CITATION] - 781 -
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Cite as 316 Neb. 777
and distributing such assets and debts equitably, as well as
related relief.
In their answer, Emme and Hupp denied Clemens’ allega-
tions as to the business partnership and alleged affirmative
defenses. Among those defenses was a request that if a busi-
ness partnership was found to exist, it include Clemens’ rental
properties.
[SEGMENT 8]
. Proceedings Regarding
Judicial Estoppel
Clemens moved for partial summary judgment on the ground
that Emme and Hupp were “estopped and precluded from
denying the existence of a partnership” between her and Butch.
In support of that claim, Clemens pointed to statements that
she and Butch made about their relationship during an earlier
action to surcharge Clemens, in her capacity as the personal
representative of the estate of Butch’s ex-wife, for allegedly
breaching her fiduciary duties to the estate. [CITATION] Clemens also
pointed to language in the opinion of the Nebraska Court of
Appeals affirming the district court’s denial of the surcharge
petition, which opinion described Clemens as Butch’s “busi-
ness partner and significant other.” [CITATION]
The district court overruled Clemens’ motion for partial
summary judgment because it found that there was, at a
minimum, a genuine issue of material fact as to the business
relationship between Clemens and Butch. Specifically, the
district court declined to attribute the same significance that
Clemens did to Butch’s reference to her as “[his] secretary
. . . [b]usiness partner” during his deposition in the surcharge
action. The district court found that this statement failed to
eliminate any question as to whether Clemens and Butch were
business partners. The district court also found that the state-
ment was inconsistent with Butch’s testimony at the trial in
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the surcharge action that Clemens was “[his] secretary. But
partner in the business, the ownership of it, [he was] the sole
proprietor of [his] property.”
As to Clemens’ own statement during the surcharge action
that she was Butch’s business partner, the district court found
it was immaterial because for judicial estoppel to apply, there
would need to be a change in position by Butch. The district
court similarly found that the Court of Appeals’ statement that
Clemens was Butch’s business partner was dictum because it
was not necessary to the decision of the surcharge action.
Clemens then filed an amended reply, again asserting that
Emme and Hupp were judicially estopped, or barred by the
doctrine against inconsistent positions, from asserting that a
business partnership did not exist between her and Butch.
After a bench trial, the district court entered a judgment in
favor of Emme and Hupp and against Clemens on the issue of
judicial estoppel and dismissed that theory of recovery with
prejudice. In so doing, the district court rejected Clemens’
argument that in the surcharge action, Butch took the posi-
tion that they were business partners when he testified as fol-
lows: “Q. . . . Clemens testified yesterday that [she was his]
partner; is that correct? A. Yes.” The district court observed
that Butch’s testimony could be construed to mean either that
Butch agreed Clemens was his partner or that Butch agreed
Clemens had testified she was his partner. The district court
also observed that “partner was not defined” and could mean a
business partner or a domestic partner. In addition, the district
court observed that Butch had otherwise testified that “[he
was] the sole proprietor of [his] property.” The district court
took a similar view of statements that Butch made describing
Clemens as his “business manager and secretary” and “his sec-
retary and . . . business partner.”
The district court also found that Butch did not assert any
position that was adopted by the court in the surcharge action,
as is required for judicial estoppel. The district court observed
that while Butch was named in the caption of the petition for - 783 -
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[CITATION]
Cite as [CITATION]
surcharge, he was apparently never served with summons and
never made a party, no claim for refund from him appeared in
the record, and all issues raised adversely to Clemens in that
action were resolved without resort to any claimed position
taken by Butch. As to the Court of Appeals’ statement that
Clemens was Butch’s business partner, the district court con-
cluded that it was a “gratuitous comment” and not a finding of
fact, as Clemens argued.
. Proceedings Regarding Partnership
A jury trial was then held regarding the existence of a busi-
ness partnership between Clemens and Butch. The evidence
adduced at the trial was voluminous. We summarize it below
as it pertains to the primary arguments raised by Clemens
on appeal.
(a) Formation of Partnership
Clemens testified that she and Butch formed a partnership
in the summer of 1990, after she went to O’Neill Body and
Frame to apply for a job. Clemens testified that Butch initially
told her that “he needed somebody in the office.” Clemens
also testified that several days after this conversation, Butch
came to her house and told her that his then-wife had served
him with divorce papers. According to Clemens, Butch said
that his then-wife “always worked with [him]” and that he
“need[ed] a new partner to come and work with [him].”
Clemens stated that she began working at O’Neill Body and
Frame several days later, without any discussion of her title or
compensation. Clemens also testified that the partnership sub-
sequently expanded to other ventures and that she contributed
primarily services to the partnership.
In contrast, an employee who worked at O’Neill Body
and Frame when Clemens started working there testified
that Butch told him in August 1990 that Clemens was being
“[brought] in to run the books, take care of the financials,
office manager, secretary.” The employee also testified that - 784 -
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[CITATION]
CLEMENS V. EMME
Cite as [CITATION]
he did not believe Clemens “was coming in as [his] boss” or
Butch’s partner. Emme, who himself worked for O’Neill Body
and Frame from 1991 to 2000, testified similarly that during
his time there, Butch was “in charge of the towing opera-
tion” and Clemens was the business manager and secretary,
although she also went on tow calls. Emme also testified that
in his subsequent review of the company’s documents after
his father died, he found “a lot” of documents identifying
Clemens as the business manager, but he “never located a
single document . . . that referenced her as a partner.”
(b) Clemens’ and Butch’s
References to One Another
Several witnesses testified that they heard Clemens and Butch
describe themselves as “business partner[s]” or “partner[s].”
However, other witnesses testified that they could not recall
Clemens or Butch making such statements. Among those who
could not recall Clemens or Butch mentioning a partnership
were Hupp and Butch’s accountants, both of whom testified
that they would have “done things differently” if they had been
told of a business partnership.
There was also evidence of a flyer for O’Neill Body
and Frame that stated, “Butch & Elaine Emme, Owners &
Operators.” Clemens testified that Butch drafted the flyer and
paid for it out of the O’Neill Body and Frame account, and
one of her witnesses recalled seeing the poster “around town.”
However, other witnesses testified that they never saw the flyer
or heard Butch refer to Clemens as “Elaine Emme.”
In addition, there was a letter written by Clemens to a
prospective employee inviting him to come “work for us” at
O’Neill Body and Frame. Clemens signed the letter as the
business manager.
(c) Alleged Cocontrol
Several witnesses testified that Clemens interviewed or
hired them for positions at O’Neill Body and Frame and - 785 -
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Cite as [CITATION]
instructed them on their duties. The witnesses also described
Clemens and Butch working “[h]and in hand,” “as a team,”
on tow calls at all hours and in all weather. There was similar
testimony that Clemens bid on and calved cattle and consigned
them for sale. In addition, Clemens described helping Butch
to determine what price to offer for a parcel of real property
and “physically sitting next to [him] when he was bidding.”
Clemens similarly described furnishing the apartments, draft-
ing leases, and dealing with tenants. Clemens opined that
Butch could not have drafted certain documents because he
did not “read and write very well.” Other witnesses testified
that “financial documents [were] not [Butch’s] forte.”
Emme’s witnesses, however, testified that Butch was “in
charge” and “always had the last word.” One witness testified
that on tow jobs, Clemens was “usually on the controls,” but
“Butch would tell her” what to do. This witness also testified
that “if [Clemens] had to order parts, [Butch] would tell her
what kind of parts.” The offer to the prospective employee
similarly stated that all “after hours in the shop” and “[w]ork
in the shop on [the employee’s] own vehicles” must be cleared
with Butch, although Clemens testified that she could have
given permission. Emme’s witnesses also disputed the sugges-
tion that Butch had difficulty comprehending financial state-
ments or other documents.
[SEGMENT 9]
(d) Bank Accounts
Witnesses for both parties agreed there were “[p]erhaps as
many as five” bank accounts that listed Clemens and Butch
as joint owners or that were partnership or multiple-party
accounts. One of those accounts was the checking account for
O’Neill Body and Frame, which apparently financed many
of the alleged partnership’s activities, as well as Clemens
and Butch’s household. Clemens was a co-owner and joint
tenant with rights of survivorship on that account from 1995
to 2007. Hupp testified that in light of that designation,
Clemens was “an owner of th[e] account” during that period. - 786 -
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[CITATION]
Cite as 316 Neb. 777
But Hupp also testified that the account’s paperwork was
“contradictory” because it indicated a sole proprietorship.
According to Hupp, at one time, the bank listed multiple
names on sole proprietorship accounts “so that they could
have [an] authorized signer on there.” However, Hupp testi-
fied that this practice was discontinued in 2007 because it
was “unclear and not correct.” Hupp also testified that in
2007, Clemens was changed to an authorized signer on the
O’Neill Body and Frame checking account. Clemens testified
similarly that in 2007, “[t]he bank . . . changed their rules and
said that they couldn’t have a joint ownership on an account
with a sole proprietor.” But Clemens testified that she was
told “everything else remained the same” and that she did not
“intend to relinquish any rights [she] may have had” when she
agreed to the change.
There was also evidence of several bank accounts owned
solely by Butch with Clemens as an authorized signer.
(e) Real Property
Witnesses for both parties also agreed that all real estate,
personal property, and vehicles of the alleged partnership
were in Butch’s name and listed only on Butch’s personal
financial statements, not those of Clemens. Clemens testi-
fied that the real property, in particular, was in Butch’s name
because “[h]e liked to be able to go up to the land map and
say, It says Arthur D. Emme. He liked . . . to be able to say
that it was his. I think they call it a grandiose syndrome.”
Clemens testified similarly that the personal financial state-
ments were “done to satisfy banks” and were not “designed to
be entirely accurate.”
Clemens acknowledged that she owned multiple parcels of
property, collectively valued at $600,000, solely in her name,
but she maintained that Butch “didn’t want to be on” her prop-
erties. Clemens also acknowledged that she signed Butch’s
name on, witnessed, or notarized documents describing alleged
partnership properties as belonging solely to him. ```plaintext
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(f) Tax Documents and Ledgers
Witnesses for both parties similarly agreed that no partner-
ship tax returns were filed and that the assets and losses of
O’Neill Body and Frame were always listed on the Schedule
C of Butch’s individual tax returns. However, Clemens testi-
fied that the ledgers of O’Neill Body and Frame showed pay-
ments to her in and after 1999, when she no longer received
“W-2s or 1099s” from the company. Clemens testified simi-
larly that while the payments to her were initially for “[o]dd
number[s],” apparently meaning that they included fractions
of a dollar, the payments after April 1995 were for “even”
numbers. Clemens maintained that the ledgers showed that
she received a “flat draw,” without withholding, as a partner,
although she conceded that the ledgers did not reflect pay-
ments to Butch.
A former employee of O’Neill Body and Frame, however,
testified that he received an “even” amount, but that this was
not a draw and that he was not a partner. This employee also
testified that the company gave him a “1099,” rather than a
“W-2,” so that “[he] didn’t have to pay taxes” and “they didn’t
pay [his] Social Security.” Other witnesses testified similarly
that Butch “wanted to pay labor in cash” in part “[t]o avoid
paying taxes.”
(g) Other Evidence
There was evidence that Clemens and Butch co-owned a
livestock brand in 2010-13. However, Emme testified that
the brand was previously owned by his mother’s family, and
the brand’s ownership was subsequently transferred to him
and Butch.
Clemens also testified about “going to court” for O’Neill
Body and Frame. Several of the cases described were in small
claims court, and Clemens acknowledged that “in terms of . . .
representing O’Neill Body and Frame in court, [she was] or
would have had to have been [a] designated representative to
do that.”
``` - 788 -
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Cite as [CITATION]
. Motion for Directed Verdict
At the close of all the evidence, Clemens moved for a
directed verdict in her favor, on the grounds that Emme and
Hupp “both testified under oath” to all elements of a business
partnership. Specifically, Clemens argued that Emme and Hupp
had admitted that she and Butch were “two or more people”
who “joined together,” both contributing money, services, or
property, for purposes of associating to carry on a business for
profit and divide and share in the profits. Clemens also argued
that Butch’s testimony in the surcharge action constituted a
judicial admission, requiring that a verdict be directed in her
favor. Emme disagreed.
The district court overruled Clemens’ motion. In so doing,
the district court observed that for a judicial admission, a party
must testify clearly and unequivocally as to a fact within the
party’s knowledge. But the district court was not persuaded
Emme or Hupp had “facts within their knowledge as far as
the sharing of the profits, the intent of the parties and that sort
of thing.”
. Jury Verdict and Judgment
The jury found that Clemens failed to meet her burden of
proof establishing that a partnership existed and failed to meet
her burden of proof establishing a presumption that a partner-
ship existed under Neb. Rev. Stat. § 67-410(3)(c) (Reissue
2018). The district court then entered judgment in favor of
Emme and against Clemens and dismissed Clemens’ complaint
with prejudice.
Clemens subsequently moved for judgment in her favor not-
withstanding the verdict or, alternatively, that the verdict be set
aside and a new trial be granted. That motion was overruled.
Clemens appealed, and we moved the matter to our docket. [CITATION] - 789 -
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III. ASSIGNMENTS OF ERROR
Clemens assigns, restated and reordered, that the district
court erred (1) in entering judgment in favor of Emme and
against her on the issue of judicial estoppel and related theo-
ries and dismissing such theories of recovery, (2) in its rulings
on alleged hearsay testimony, and (3) in refusing to enter a
directed verdict in her favor at the close of all evidence and
in overruling her motion to set aside the verdict and for a new
trial. Clemens also alleges that the jury verdict was clearly
wrong and was not supported by competent evidence.
IV. STANDARD OF REVIEW
[1] An appellate court reviews a court’s application of judi-
cial estoppel to the facts of a case for abuse of discretion and
reviews its underlying factual findings for clear error. [CITATION]
[2] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection or exclude evidence on hearsay grounds. [CITATION]
[3] A directed verdict is proper only when reasonable minds
cannot differ and can draw but one conclusion from the evi-
dence, that is, when an issue should be decided as a matter of
law. [CITATION] In reviewing that determination, an appellate court gives
the nonmoving party the benefit of every controverted fact and
all reasonable inferences from the evidence. [CITATION]
[4-6] Review of a ruling on a motion for judgment not-
withstanding the verdict is de novo on the record. [CITATION] To sustain
a motion for judgment notwithstanding the verdict, the court
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Cite as 316 Neb. 777
resolves the controversy as a matter of law and may do so
only when the facts are such that reasonable minds can draw
but one conclusion. 10 On a motion for judgment notwithstand-
ing the verdict, the moving party is deemed to have admitted
as true all the relevant evidence admitted that is favorable to
the party against whom the motion is directed, and, further,
the party against whom the motion is directed is entitled to the
benefit of all proper inferences deducible from the relevant
evidence. 11
[7] An appellate court reviews the denial of a motion for
new trial for an abuse of discretion. 12
The standard under which we review the jury’s verdict
requires more discussion. Clemens points to our decision in
[CITATION] to suggest
that we try factual questions de novo on the record and reach
a conclusion independent of the findings of the trial court
because hers is an action for the dissolution of a partnership
and an accounting between partners, and such an action is
one in equity. 14 Clemens is correct that in [CITATION], we stated that in considering the
proper standard of review for the question of the existence
of a partnership, we apply the standard of review generally
applicable to the underlying action. 15 We also stated that an
action for the dissolution of a partnership and an accounting
between partners is one in equity and that such actions are
generally reviewed de novo on the record. 16
10
Id.
11
Id.
12
Id.
13
[CITATION]
14
See, e.g., id.
15
Id.
16
Id. - 791 -
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However, prior to [CITATION], we stated that where the existence of a partnership is in dispute and the evidence is contradictory, the question is for the jury under appropriate instructions. Our earlier cases also stated that the verdict of a jury in such a case “will not be set aside on the ground that it is against the weight of testimony, unless it is clearly so.” 17
In the present case, though, we need not resolve the tension between these two lines of cases because the evidence here is insufficient under either standard to establish that a partnership existed. 18
V. ANALYSIS
. Emme Was Not Estopped From Denying
Existence of Business Partnership
Clemens’ first assignment of error concerns the district court’s finding that Emme was not judicially estopped, or barred by the doctrine of inconsistent positions, from denying that she and Butch were business partners. Clemens claims that “[w]hile sworn to tell the truth, under oath, during the surcharge trial,” Butch unequivocally agreed that it was “correct” that she had testified she was “[his] partner.” 19 Clemens also claims that there were “[n]umerous other instances of Butch referring to [her] as his partner” during the surcharge action. 20 As a result, Clemens argues that Emme should not have been allowed to deny the existence of a business partnership between her and Butch. Emme, on the other hand, argues
17
[CITATION]
19
Brief for appellant at 36.
20
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that the doctrines of judicial estoppel and inconsistent posi-
tions “do[] not apply to the facts of this case.” [CITATION]
[8,9] Judicial estoppel is an equitable doctrine that a court
invokes at its discretion to protect the integrity of the judicial
process. [CITATION] The doctrine of judicial estoppel “protects the integ-
rity of the judicial process by preventing a party from taking a
position inconsistent with one successfully and unequivocally
asserted by the same party in a prior proceeding.” [CITATION]
[10] Fundamentally, the intent behind the doctrine of judi-
cial estoppel is to prevent parties from gaining an advantage
by taking one position in a proceeding and then switching
to a different position when convenient in a later proceed-
ing. [CITATION] In other words, the doctrine is designed to “‘“prevent
parties from playing fast and loose with the courts.”’” [CITATION]
Judicial estoppel is, however, to be applied with caution so
as to avoid impinging on the truth-seeking function of the
court, because the doctrine precludes a contradictory posi-
tion without examining the truth of either statement. [CITATION] We
have also held that before a court may apply the doctrine of
judicial estoppel, “‘bad faith or an actual intent to mislead on
the part of the party asserting inconsistent positions must be
demonstrated.’” [CITATION]
In light of the foregoing principles, we find that even if
Butch were seen to have been a party to the surcharge action
for purposes of the application of the doctrine of judicial
estoppel, his position in that action was not inconsistent with
Emme’s position here, because Butch never unequivocally
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stated that Clemens was his business partner. 28 Clemens relies
primarily upon the following testimony by Butch in the sur-
charge action: “Q. . . . Clemens testified yesterday that [she
was his] partner; is that correct? A. Yes.” However, Butch’s
statement can be construed in several ways, as the district
court observed. The statement could mean that Butch agreed
Clemens was his partner or that Butch agreed Clemens had
testified she was his partner. The statement could also refer
to a business partner or an intimate partner. Moreover, imme-
diately after the exchange in question, Butch testified that
Clemens was “[his] secretary. But partner in the business, the
ownership of it, [he was] the sole proprietor of [his] property.”
There is similar ambiguity in Butch’s other statements in the
surcharge action, including his description of Clemens as
“[his] secretary . . . [b]usiness partner.”
Furthermore, even if Butch were seen to have taken the
position that Clemens was his business partner, the result
would be the same because that position was not successfully
asserted in the surcharge action. As we have explained, for a
party to have successfully asserted a position in a prior action
for purposes of judicial estoppel, “the party must have been
successful in getting the first court to accept the position.” 29
“[A]bsent such acceptance, the doctrine of judicial estoppel
does not apply.” 30 Judicial acceptance does not require that a
party prevail on the merits. 31 However, the position urged by
28
Cf., [CITATION] (claim for breach of contract not inconsistent with fraud claim, where fraud
claim was premised on existence of contract); [CITATION] (not necessarily inconsistent for employer to
contest compensability of injury before Workers’ Compensation Court and
also claim subrogation interest in proceeds of third-party settlement).
29
[CITATION].
30
Id.
31
[CITATION]. - 794 -
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the party must have been “adopted” by the first court “either as
a preliminary matter or as part of a final disposition.” [CITATION]
For example, in [CITATION], we found that
the plaintiff was judicially estopped from asserting that the
SID’s assessments were invalid in a claim against the SID.
We did so because the plaintiff had previously recovered a
judgment from another party on a claim for breach of contract
that was premised on the theory that the SID’s assessments
were valid. [CITATION] We took a similar view in [CITATION]
In that case, a landlord sought to assert that a
condition precedent for an option to purchase real property
had not been met in response to a claim for damages for the
landlord’s delay in allowing the purchase of the property. [CITATION] We
found that the landlord was judicially estopped from doing so
because the landlord had previously persuaded the court to
order the sale of the property on the theory that the option had
been duly exercised. [CITATION]
Here, in contrast, the position that Clemens and Butch
were business partners was not adopted by the court in the
surcharge action as a preliminary matter or as part of the final
disposition. In fact, the petition in the surcharge action alleged
that it was the “intimate relationship” between Clemens and
Butch, and not their alleged business partnership, that caused
Clemens’ dealings with Butch, in her capacity as personal
representative of Butch’s ex-wife’s estate, to conflict with her
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CLEMENS V. EMME
Cite as 316 Neb. 777
duties to the estate. [CITATION] The court’s decisions in the surcharge action were similarly based on matters other than the existence of the alleged business partnership. Specifically, the court ruled in Clemens’ favor and against the surcharge petitioner because the petitioner failed to meet his “initial burden of proof to show that Clemens’ [dealings] benefited [her] at the estate’s expense.” [CITATION]
It is true that the Court of Appeals described Clemens as Butch’s “business partner” in its opinion affirming the denial of the surcharge petition. [CITATION] However, that statement, which was made in the opinion’s opening paragraph, prior to the recitation of the background facts, cannot be seen to have been adopted by the Court of Appeals, because it played no role in the Court of Appeals’ conclusion that the petitioner failed to produce evidence showing the value of over 200 items of Butch’s ex-wife’s personal property that Clemens allegedly failed to account for or showing that Butch’s bill for hauling personal property for the estate was excessive. [CITATION] Instead, the statement was dictum, as the district court observed.
Clemens argues that the Court of Appeals’ statement is not dictum because it did not concern “‘some question of law.’” [CITATION] Clemens bases this argument on a 1924 opinion of this court, wherein we define dictum as “‘[a]n opinion expressed by a court upon some question of law which is not necessary to the decision of the case before it.’” [CITATION] However, we elsewhere define dictum more broadly to mean a “judicial opinion[] expressed by the writer on a point that is not necessarily raised and not involved in the case, or on a point in which
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the judicial mind was not directed to the precise question
necessary to be determined to fix the rights of the parties.” 44
Under this broader definition, which is consistent with the
general meaning of “dictum” as a legal term of art, 45 the Court
of Appeals’ statement was dictum because the court’s opin-
ion regarding the business relationship between Clemens and
Butch was not directed to the precise question necessary to be
determined to fix the parties’ rights in the surcharge action.
Clemens’ corollary claim that the Court of Appeals’ state-
ment that she and Butch were business partners was a “factual
finding,” having the effect of a jury verdict, is similarly with-
out merit. 46 A finding of fact is a “‘determination concern[ing]
whether the evidence showed that something occurred or
existed.’” 47 The Court of Appeals’ statement that Clemens
was Butch’s business partner was not a finding of fact in this
sense because the parties in the surcharge action did not dis-
pute whether Clemens and Butch were business partners, and
the trier of fact did not have to decide that question.
Accordingly, because Butch never unequivocally stated in
the surcharge action that Clemens was his business partner,
and because the courts in that action did not adopt the posi-
tion that Clemens and Butch were business partners, the dis-
trict court did not abuse its discretion in finding that Emme
was not judicially estopped or otherwise barred from denying
44
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the existence of a business partnership between Clemens
and Butch.
. No Error in Rulings
on Alleged Hearsay
Clemens’ second assignment of error concerns the district
court’s rulings on alleged hearsay at the trial. Clemens argues
that the district court improperly allowed Emme and Hupp to
testify about statements made by Butch, but refused to allow
her to introduce an exhibit containing her own prior consistent
statement that she was Butch’s business partner. Emme coun-
ters that the testimony regarding Butch’s statements to which
he understands Clemens to refer was not hearsay because it
was not offered for the truth of the matter asserted. Emme
also argues that the exclusion of Clemens’ exhibit was proper
or, alternatively, was not prejudicial to her.
[11] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. 48 Hearsay is
not admissible unless otherwise provided for in the Nebraska
Evidence Rules or elsewhere. 49 However, by definition, state-
ments are not hearsay if they are consistent with the declarant’s
testimony and are offered to rebut an express or implied charge
against the declarant of recent fabrication, improper influence,
or improper motive under Neb. Rev. Stat. § 27-801(4)(a)(ii)
(Cum. Supp. 2022). 50
(a) Clemens Failed to Identify Any Objections
That She Made on Hearsay Grounds
A cursory review of the bill of exceptions in this case
shows that Clemens objected to certain statements at the trial
on hearsay grounds and that the district court overruled some
48
[CITATION]
50
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of those objections. However, Clemens does not cite any
of those statements in her brief on appeal in support of this
assignment of error. Instead, Clemens cites to portions of the
bill of exceptions containing her oral motion in limine to bar
Hupp from testifying as an expert on banking matters, as well
as several statements to which she did not object at trial. This
is insufficient for us to review Clemens’ claim that Emme and
Hupp were improperly allowed to testify about statements
made by Butch. As an appellate court, we decline to scour the
record on appeal in search of hearsay objections by Clemens
that were overruled by the district court that might support
her claim. 51
(b) Clemens Not Prejudiced by Exclusion
of Her Exhibit on Hearsay Grounds
As to Clemens’ claim that the district court improperly
excluded evidence of her own prior consistent statement that
she and Butch were business partners, there is no merit. At
the trial in the present matter, Clemens sought to introduce an
exhibit that contained the following excerpt from her deposi-
tion in the surcharge action:
Q. And what is your occupation?
A. I’m a business manager and a partner at O’Neill
Body & Frame.
Q. And who is your partner?
A. Butch Emme, also known as Arthur.
Q. Is there a formal partnership arrangement?
A. No.
Q. How long have you been a partner?
A. 22 years almost, 21 and some months.
Clemens argues that her exhibit constituted a prior consist
ent statement, introduced to rebut what she characterizes as
Emme’s “allegation and inference . . . that she had recently
51
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fabricated her [claim] that she and Butch were partners when
she filed this lawsuit.” 52
[12-14] However, even assuming that the exhibit in question
is not hearsay, Clemens was not prejudiced by its exclusion
because immediately after the exhibit was excluded, Clemens
herself testified that she had previously “testified in court”
that Butch referred to her as “his business partner.” In a civil
case, such as this, the admission or exclusion of evidence is
not reversible error unless it unfairly prejudiced a substantial
right of the complaining party. 53 The exclusion of evidence is
ordinarily not prejudicial where substantially similar evidence
is admitted without objection. 54 In particular, where the infor-
mation contained in an exhibit is, for the most part, already in
evidence from the testimony of witnesses, as was the case here,
the exclusion of the exhibit is not prejudicial. 55
Accordingly, because Clemens failed to identify any hear-
say that the district court admitted over her objections, and
because she was not prejudiced by the exclusion of the exhibit
containing her own prior statement that she and Butch were
business partners, the district court did not abuse its discretion
in its rulings on the alleged hearsay.
. Proof of Business Partnership
Under Nebraska Law
Before turning to Clemens’ remaining assignments of error,
both of which relate to the alleged existence of a business
partnership between her and Butch, we briefly review the legal
framework governing such partnerships in Nebraska.
[15,16] At all relevant times, Nebraska law defined a
“partnership” as an association of two or more persons “to
52
Brief for appellant at 47.
53
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carry on . . . a business for profit.” 56 Being “co-owners” of
a business for profit does not refer to the co-ownership of
property, but to the co-ownership of the business intended to
garner profits. 57 Co-ownership distinguishes partnerships from
other commercial relationships such as creditor and debtor,
employer and employee, franchisor and franchisee, and land-
lord and tenant. 58
[17,18] Co-ownership generally addresses whether the par-
ties share the benefits, risks, and management of the enterprise
such that (1) they subjectively view themselves as members of
the business rather than as outsiders contracting with it and
(2) they are in a better position than others dealing with the
firm to monitor and obtain information about the business. 59
The objective indicia of co-ownership are commonly con-
sidered to be: (1) profit sharing, (2) control sharing, (3) loss
sharing, (4) contribution, and (5) co-ownership of property. 60
However, the five indicia of co-ownership are only that; they
are not all necessary to establish a partnership relationship,
and no single indicium of co-ownership is either necessary or
sufficient to prove co-ownership. 61
[19] The party asserting the partnership relationship exists
has the burden of proving that relationship by a preponder-
ance of the evidence. 62 However, by statute, a person who
receives a share of the profits of a business is presumed to
be a partner in the business unless the profits were received
56
See Neb. Rev. Stat. § 67-402(6) (Reissue 2018). See, also, [CITATION]
58
See id.
59
Id.
60
Id.
61
Id.
62
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in payment for services as an independent contractor or of
wages or other compensation to an employee or under speci-
fied circumstances not relevant here. 63
4. Motion for Directed Verdict and Motion to
Set Aside Verdict and for New Trial
Were Properly Overruled
Clemens’ third assignment of error concerns the overruling
of her motion for a directed verdict in her favor on the ques-
tion of whether there was a business partnership between her
and Butch, as well as the overruling of her subsequent motion
to set aside the verdict and for a new trial. Clemens argues
that Emme and Hupp testified at the trial in the present matter
that she and Butch joined together to carry on a business for
profit and share in the profits. As such, she argues that Emme
and Hupp judicially admitted all the elements of a business
partnership. Alternatively, Clemens argues that the other evi-
dence presented at the trial established the existence of a busi-
ness partnership. Emme disagrees.
(a) Emme and Hupp Did Not Judicially Admit
Elements Required to Prove Partnership
Between Clemens and Butch
[20,21] A judicial admission, as a formal act done in the
course of judicial proceedings, is a substitute for evidence and
thereby waives and dispenses with the production of evidence
by conceding for the purpose of litigation that the proposition
of fact alleged by an opponent is true. [CITATION] Judicial admissions
must be deliberate, clear, and unequivocal, and they do not
extend beyond the intent of the admission as disclosed by its
context. [CITATION] Where a party testifies clearly and unequivocally to
a fact within his or her own knowledge, such testimony may
63
§ 67-410(3)(c).
64
[CITATION]
65
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be considered as a judicial admission. 66 That rule has particu-
lar application where the parties so testifying made no effort
to retract, qualify, or otherwise explain the positive force of
their own evidence. 67
In the present case, even assuming that Hupp can be seen
as an opponent, given that he resigned as copersonal repre-
sentative before the trial, the statements by Hupp upon which
Clemens relies fall short of judicially admitting all elements
of a business partnership. Hupp did testify that he had no
reason to believe that the various ventures here were anything
other than for-profit businesses. However, while that is an ele-
ment of a business partnership, it is not one that is disputed
by the parties. 68
Instead, the parties dispute whether Clemens and Butch
joined together to carry on those businesses and share in the
profits. On those questions, the majority of the relevant tes-
timony by Hupp was less conclusive than Clemens suggests.
In the excerpts from the bill of exceptions cited by Clemens,
Hupp testified that Butch’s “business components” changed
over time; that O’Neill Truck Services “came into creation,”
apartments were “involved,” and there was a cattle opera-
tion; and that the value of Butch’s assets was greater at his
death than in 1990. However, none of that testimony estab-
lishes that Clemens and Butch joined together to carry on
those businesses and share in the profits. The same is true of
Hupp’s testimony that Clemens was “part of the transactions”
with O’Neill Body and Frame from the time he began work-
ing as the company’s banker in 1994 and that the ledgers for
O’Neill Body and Frame showed payments to Clemens. Hupp
never specified what Clemens’ part in those transactions was.
66
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And as to the payments to Clemens, Hupp disclaimed know-
ing whether she was “an employee, an independent contractor
or a partner.”
Clemens also points to Hupp’s testimony that she was a co-
owner of the O’Neill Body and Frame checking account from
1995 to 2007. However, as recounted above in our descrip-
tion of the trial, Hupp qualified that testimony by explaining
that during that period, the bank listed persons as co-owners
on sole proprietorship accounts in order to designate them as
authorized signers.
Otherwise, the testimony by Hupp upon which Clemens
relies was that he did not recall any discussions with her or
Butch about whether they had a business partnership and he
had no knowledge of who owned the cattle brand.
The testimony by Emme upon which Clemens relies simi-
larly falls short of establishing a business partnership. Clemens
points to Emme’s statement that he heard Hupp’s “testimony
about the quantity and quality of work done by . . . Clemens
in th[e] various operations” and would “agree with [it].” Hupp
testified that Clemens “worked more than 40 hours per week
. . . for many years” and was “a very hard worker.” But people
can work a significant number of hours and perform their
work diligently without being partners in a business.
(b) Other Evidence Cited by Clemens Was Insufficient
to Warrant Directed Verdict in Her Favor
The other evidence cited by Clemens is similarly insuf-
ficient for us to find that the district court erred in failing
to direct a verdict in her favor. As stated above, a directed
verdict is proper only when reasonable minds cannot differ
and can draw but one conclusion from the evidence. 69 Here,
however, the evidence regarding the existence of a business
partnership cut both ways, such that reasonable minds could
draw differing conclusions.
69
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Clemens points specifically to evidence that she and Butch
had “numerous bank accounts” that were jointly owned or
were partnership accounts, described themselves as partners
in the surcharge action, held themselves out to the commu-
nity as business partners, referred to each other as “business
partners,” and operated the businesses as a partnership. 70
However, as was recounted in our description of the trial,
there was also evidence that the bank responsible for the
O’Neill Body and Frame checking account listed persons as
co-owners on sole proprietorship accounts in order to des-
ignate them as authorized signers and that other accounts
were solely owned by Butch. Butch’s statements during the
surcharge action about his relationship with Clemens were
equivocal, as was previously explained. Likewise, while some
witnesses recalled Clemens and Butch describing themselves
as partners, others did not. The testimony was similarly incon-
clusive as to whether Clemens and Butch exercised cocontrol
of the businesses.
Clemens also points to the fact that she “represented the
partnership in numerous . . . civil litigation cases” 71 as evi-
dence that there was a business partnership. In her testimony
at the trial, Clemens specifically mentioned suits in small
claims court and serving as the designated representative of
O’Neill Body and Frame. Neither necessarily proves that
she was a partner. An employee may represent a partnership,
limited liability company, corporation, or other kind of orga-
nization or entity in small claims court and can also serve as
its designated representative. 72 Insofar as Clemens claims that
her “representation” went beyond that, we would note that a
partnership must be represented by a member of the bar. 73 A
70
Brief for appellant at 45.
71
Id.
72
See Neb. Rev. Stat. § 25-2803 (Cum. Supp. 2022).
73
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legal proceeding in which a party is represented by a person
not admitted to practice law is a nullity and is subject to
dismissal. [CITATION] Individuals can represent themselves in legal pro-
ceedings in their own behalf, but one who is not an attorney
cannot represent others. [CITATION]
(c) Neither Setting Aside Verdict
nor New Trial Was Warranted
Clemens’ argument regarding the overruling of her motion
to set aside the verdict and for a new trial is derivative of her
claim that Emme and Hupp judicially admitted the elements of
a business partnership. Because that claim fails for the reasons
set forth above, the district court cannot be said to have erred
in overruling Clemens’ motion to set aside the verdict or for
a new trial.
5. Jury Verdict Was Not Clearly Wrong and
Was Supported by Competent Evidence
Clemens’ fourth and final assignment of error concerns
the jury’s verdict in favor of Emme and against her. Clemens
argues that the verdict was clearly wrong and was not supported
by competent evidence. Clemens argues that she met her bur-
den to show “‘the association of two or more persons to carry
on as co-owners a business for profit.’” [CITATION] Specifically, as evi-
dence of her and Butch’s association, Clemens points to their
alleged “refer[ences] to each other as ‘business partners.’” [CITATION]
Similarly, as evidence of carrying on as co-owners, Clemens
points to her and Butch’s “operat[ing] numerous businesses
and acquir[ing] real estate through their joint efforts over
decades of work.” [CITATION] Emme, on the other hand, argues that
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there was “more than enough objective evidence on which to
base the jury verdict in favor of [him].” 79
We agree with Emme. As we explained when discussing
Clemens’ claim that the district court erred in failing to direct
a verdict in her favor, the evidence regarding her and Butch’s
references to each other and their conduct of the businesses
was mixed. However, Clemens had the burden to prove by
a preponderance of the evidence that a business partnership
existed between her and Butch. Even when reviewing an
equity case de novo on the record where evidence is in dis-
pute, we may give weight to the fact that the fact finder heard
and observed the witnesses and accepted one version of the
facts rather than another. 80
Here, there was no written partnership agreement; there
were no partnership tax returns ever filed; there was no real or
personal property titled jointly in the names of Clemens and
Butch; though five bank accounts were titled as co-owners,
other bank accounts were not, and there was an explanation
as to why Clemens was listed as a co-owner on the account
for O’Neill Body and Frame for a period of time; there was
no evidence that Clemens and Butch were jointly responsible
for any indebtedness; there was no evidence that Clemens
was responsible for any losses incurred by the businesses;
and there was conflicting evidence as to whether Clemens had
control over the business. As such, we find the jury determina-
tion to be correct.
VI. CONCLUSION
There is no merit to Clemens’ assignments of error regard-
ing judicial estoppel, alleged hearsay evidence, her motion for
a directed verdict, her motion to set aside the verdict and for a
new trial, or the jury verdict in Emme’s favor and against her.
Accordingly, we affirm the rulings of the district court.
Affirmed.
79
Brief for appellee at 28.
80
[CITATION]
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
[CITATION]
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
MARIO SANTOS, APPELLANT.
Filed June 4, 2024. No. A-23-233.
Appeal from the District Court for Douglas County: J RUSSELL DERR, Judge. Affirmed.
Kenneth Jacobs, of Hug & Jacobs, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph for appellee.
PIRTLE, Chief Judge, and RIEDMANN and BISHOP, Judges.
PIRTLE, Chief Judge.
I. INTRODUCTION
Mario Santos was charged in the district court for Douglas County with two counts of first
degree sexual assault on a child and one count of first degree sexual assault. After trial, he was
convicted on both counts of sexual assault on a child and acquitted of the other sexual assault
charge. However, after the trial concluded, Santos discovered undisclosed evidence pertaining to
his two convictions. After Santos filed a motion for new trial, the district court vacated one of his
convictions and ordered a new trial to be held but denied the motion as to his other conviction.
Santos then filed a second motion for new trial which the district court denied.
On appeal, Santos assigns the district court erred in making an evidentiary ruling at trial
and in denying his motions for new trial. He also assigns that his trial counsel was ineffective in a
variety of ways. For the reasons that follow, we affirm.
II. BACKGROUND
In 2016 and 2017, Alma B. and her three children lived in a two-bedroom house in Omaha,
Nebraska. While they lived in this home, it was not uncommon for other families to live with them.
At various points, the household consisted of Alma and her three children, a woman named Sarai
and her five children, Carmen P. and her four children, and another woman and her two children.
Additionally, sometime in the summer of 2016, Santos began living in the home as well. With all
these people living in the residence, Santos slept on the living room couch with one of Carmen’s
children, H.B.P.
Santos, born in 1975, held himself out to be a “curandero” which is a type of spiritual
healer. In this role, Santos would regularly organize and lead prayer rituals in the basement of the
home and in the backyard shed. Alma, Carmen, Sarai, and their children often participated in these
ceremonies. The rituals involved Santos giving the participants cigars and having them drink from
a wooden cup that contained an undisclosed liquid. While only Santos knew what was in the cup,
some of the participants believed it contained alcohol. After drinking from the cup, some of the
participants had negative effects that involved vomiting or passing out. Alma reported that there
were times she passed out after drinking from the cup and woke up naked feeling “like someone
had touched [her] body.”
In March 2018, Alma reported to law enforcement that Santos sexually assaulted her from
September to November 2016. However, she reported his name as “Mario Benato” so when law
enforcement attempted to check his records and locate him, they were unable to do so. Because of
that, and length of time between the report and alleged conduct, the investigation did not progress.
Then in November 2018, Alma’s son, A.P., disclosed that Santos had sexually assaulted
him. On January 8, 2019, A.P. participated in a forensic interview at Project Harmony. At the
interview, A.P. was asked about “Mario” and he reported that Santos had abused him.
Additionally, A.P. reported that he previously saw Santos sexually abuse Carmen’s son,
H.B.P., who had been sleeping on the couch with Santos. Law enforcement located H.B.P. and he
participated in a Project Harmony interview. During this interview, H.B.P. also disclosed sexual
abuse by Santos. Following H.B.P.’s interview, Santos was arrested on February 11, 2019.
. DISTRICT COURT PROCEEDINGS
On March 7, 2019, the State charged Santos with two counts of first degree sexual assault
on a child. Count I alleged that Santos sexually penetrated A.P. and count II alleged he sexually
penetrated H.B.P. Law enforcement then discovered evidence regarding a separate incident
involving Santos sexually assaulting Alma. Accordingly, Santos’ charges were ultimately
amended on March 25, 2021, to include an additional third count of first degree sexual assault.
The date range for each count alleged the sexual assaults occurred between January 1, 2016, and
May 30, 2018. After a series of pretrial motions that are not relevant to this appeal, a jury trial was
held from March 19 to March 24, 2021.
At trial, A.P. testified that Santos was living with him and his family when he was around
10 years old. He explained that one night Santos woke him up in his bedroom and took him to the
living room. Once there, Santos had A.P. take off his shorts and then undressed himself. A.P. then
alleged that Santos had him get on his knees, put his penis in his mouth, and told him to “suck it.”
Santos proceeded to put his hands on A.P.’s head and thrusted his penis in and out of his mouth.
[SEGMENT 14]
Afterward, Santos put his penis into A.P.’s butt and thrusted back and forth. A.P. stated that it hurt
when Santos put his penis in his butt and that he cried while it happened. A.P. testified that Santos
eventually ejaculated into his mouth.
A.P. then explained that he saw Santos do similar things to H.B.P. He stated that he woke
up one night to a loud banging and saw Santos putting his penis inside of H.B.P.’s butt. However,
on cross-examination, A.P. retracted these statements and said that he never witnessed H.B.P.’s
abuse. Instead, he said that he learned of H.B.P.’s abuse from Alma who told him about it on the
way to his Project Harmony interview.
H.B.P. then testified and described a separate incident where Santos sexually abused him.
This incident occurred at a different residence sometime from October 2015 to May 2017, before
H.B.P lived with Alma and her family. At some point during this period, Santos stayed with
H.B.P.’s family at this separate residence. H.B.P. recalled that he was 6 or 7 years old when he
was alone with Santos one night. During this incident, H.B.P. stated that Santos touched his
bottom, pulled down his pants, and then put his penis into his butt. H.B.P. explained that Santos
told him afterward to not tell his mother or something bad would happen to him. H.B.P. later told
a group of people about this incident that included A.P., Alma, Carmen, and Alma’s other son,
J.P.B.
J.P.B. then testified at trial. J.P.B. stated he was 13 years old when Santos lived with them.
He began by generally describing the rituals Santos organized and led. He stated the first couple
of rituals were normal, but strange things began to happen as he continued to participate in them.
He described how Santos blew cigar smoke into the participants’ faces and circulated the wooden
cup filled with what he believed was alcohol.
J.P.B. then explained that during some of these rituals, the participants passed out. He
recalled one time when a child drank the liquid causing him to faint. Then one time while a ritual
was happening in the shed without him, he peered in and saw Alma unconscious on the floor. He
stated that he saw her on the floor but did not do anything because the ritual was still ongoing. He
testified that she did not wake up for several hours after this happened.
A couple of weeks after this incident, J.P.B. confronted Santos about the rituals and called
him a “devil-worshipper” which angered him. In retaliation, Santos tied him to a chair. While tied
to the chair, J.P.B. noticed Alma was unconscious in a bedroom. He testified that she was not
moving and looked like she was drugged.
J.P.B. continued to explain that while he was still tied to the chair, Santos grabbed Alma,
took off her clothes, rubbed her chest, laid her on her back, and sexually assaulted her in front of
him. Throughout this incident, J.P.B. said that Alma remained unconscious. After Santos was
finished, he left J.P.B. tied to the chair and went to sleep. J.P.B. was eventually able to untie himself
and assisted Alma who woke up around 3 hours later with no memory of the events.
Alma and Carmen also testified at trial. Because Alma and Carmen are both undocumented
immigrants, their testimony involved short discussions about U-Visa’s or “victim visas.” Victim
visas are a United States nonimmigrant visa which is set aside for victims of crimes who are willing
to assist law enforcement and government officials in the investigation or prosecution of the
criminal activity. In short, they permit such victims to enter or remain in the United States when
they might not otherwise be able to do so.
During Alma’s testimony, the defense asked her whether she knew what a victim visa was
and whether she had attempted to change her immigration status since these allegations were made
against Santos. Alma responded “no” to both questions. Alma was also asked whether she had
consulted an attorney about changing her immigration status and whether anyone at Project
Harmony helped her fill out immigration forms. Alma responded that she did not remember.
During Carmen’s testimony, the defense asked if she knew what a victim visa was, but the district
court sustained the State’s “[b]eyond the scope” objection so Carmen did not answer the question.
During closing arguments, Santos argued that Alma and Carmen had told their children to
falsely accuse him of sexual assault so that they could obtain victim visas to stay in the country.
In response, the State argued that the only evidence adduced regarding immigration status or victim
visas was Alma’s testimony that she was undocumented and did not know what a victim visa was.
Following closing arguments, the district court submitted the case to the jury. The jury
found Santos guilty of both counts of first degree sexual assault of a child, but not guilty on the
third count alleging first degree sexual assault. The district court accepted the jury’s verdict,
convicted Santos on counts I and II, and acquitted him of the third.
. POST TRIAL PROCEEDINGS
On April 27, 2021, about a month after the verdict, Santos filed a motion for new trial. In
this motion, he argued that a new trial was warranted on both convictions due to prosecutorial
misconduct and the State’s failure to disclose evidence. He essentially argued that Alma perjured
herself when she denied knowing what a victim visa was because she had been in contact with an
attorney to apply for one. Additionally, he claimed the prosecutors knew that Alma’s testimony
was false because they were aware that she had obtained this attorney before the trial began.
Evidence was later adduced that Alma’s attorney had emailed the prosecution prior to trial to ask
if they could sign off on the visa application. Santos argued a new trial was necessary because the
State failed to disclose this information, failed to correct Alma’s false testimony at trial, and
utilized the false testimony in its closing argument.
After a hearing on this motion, the district court issued an order partially granting the
motion and partially denying it. In relation to count I, which related to A.P.’s allegations, the court
determined the State’s use of Alma’s perjured testimony constituted prosecutorial misconduct and
prejudiced Santos’ right to a fair trial. However, for count II, which related to H.B.P.’s allegations,
the court determined Santos failed to demonstrate he was prejudiced by the perjured testimony and
non-disclosure because the evidence did not “go to the credibility of witnesses whose testimony
form[ed] the bases of his conviction.” Accordingly, the court ordered a new trial on count I, but
did not alter Santos’ conviction on count II.
On August 31, 2021, Santos filed a second motion for new trial. In this motion, he argued
that a new trial was warranted on his conviction for count II because he had discovered undisclosed
evidence that Carmen had a pending victim visa application at the time of trial. Santos learned that
an attorney, Jason Finch, represented Carmen in this endeavor and uncovered the application after
subpoenaing his office. This evidence demonstrated that Carmen finalized an application for a
victim visa in 2020, and that the Omaha police department had approved it after Carmen assisted
law enforcement in a different criminal case involving the victimization of her daughter.
In its order denying the motion, the district court articulated that Carmen’s victim visa
application had been filed with the Department of Homeland Security 7 months before Santos’
trial began and was awaiting approval while the trial ensued. The court also concluded that the
State was never in possession of Carmen’s application, that no one working on Santos’
investigation or prosecution was familiar with Carmen’s application, and that the Omaha police
department did not have a system in place that allowed the sharing of information related to victim
visas. Further, the court reasoned that the defense could have discovered Carmen’s victim visa
application prior to the trial if it had been reasonably diligent. Due to these reasons, the court
determined Santos was unable to prove prosecutorial misconduct or a Brady violation as to count
II and denied his motion.
On July 19, 2022, a sentencing hearing was held. On Santos’ sole remaining conviction for
first degree sexual assault on a child, the district court sentenced him to 48 to 50 years’
imprisonment. Following this hearing, the State voluntarily dismissed the pending charge it had
refiled following the district court’s grant of a new trial on count I.
Santos pursued a direct appeal in this matter, but the appeal was dismissed because his
attorneys did not file the appeal within the 30-day time limit. Santos then moved for postconviction
relief where he alleged that he received ineffective assistance of counsel due to his attorneys’
untimely filing of his appeal. The district court granted his request for postconviction relief in the
form of a new direct appeal. This is that appeal.
III. ASSIGNMENTS OF ERROR
Restated, Santos assigns the district court erred (1) by sustaining the State’s objection to
Carmen’s testimony regarding the victim visa; (2) by not granting his first motion for new trial as
to both counts; and (3) for not granting his second motion for new trial as to count II.
Santos also assigns his trial counsel was ineffective by (1) failing to properly investigate
and discover evidence regarding Alma and Carmen’s victim visas; (2) failing to depose two of
Sarai’s children prior to trial; and (3) not filing a motion to sever the charges against him.
IV. STANDARD OF REVIEW
Where the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. [CITATION].
An appellate court applies a de novo standard when reviewing a trial court’s dismissal of a
motion for new trial without conducting an evidentiary hearing, but it applies an abuse of discretion
standard of review to appeals from motions for new trial denied after an evidentiary hearing. [CITATION]. An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. [CITATION].
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. [CITATION]. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are sufficient to conclusively determine whether
[SEGMENT 15]
counsel did or did not provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. Id.
V. ANALYSIS
. OBJECTION TO CARMEN’S TESTIMONY REGARDING VICTIM VISAS
Santos first assigns the district court erred in sustaining the State’s “[b]eyond the scope”
objection to Santos asking Carmen whether she knew what a victim visa was. Santos argues that
Carmen’s knowledge about victim visas was relevant and should have been allowed. He essentially
contends that if she had answered the question affirmatively, he would have been better able to
argue that Alma and Carmen conspired against him to secure victim visas.
Pursuant to Neb. Rev. Stat. § 27-103(1)(b) (Reissue 2016), Neb. Evid. R. 103(1)(b), error
may not be predicated upon a ruling which excludes evidence unless a substantial right of the party
is affected, and the substance of the evidence was made known to the judge by offer or was
apparent from the context within which questions were asked. [CITATION]. Therefore, to predicate error upon a ruling of the court refusing to permit
a witness to testify, or to answer a specific question, the record must show an offer to prove the
facts sought to be elicited. Id. The offer need not be a detailed recitation of the excluded testimony
but must be enough to provide the general nature of the testimony so that an appellate court can
properly review its effect. [CITATION].
Santos made no offer of proof concerning Carmen’s proposed testimony. This is not
surprising given his second motion for new trial where he asserted that the evidence pertaining to
Carmen’s victim visa had not been disclosed. However, despite this unique situation, it remains
that no one knows how Carmen would have answered the question if she had been allowed to
respond. Therefore, without an offer of proof, we determine this assignment of error fails.
But even if we presumed the district court erred in sustaining the objection and that a
truthful response from Carmen would have indicated that she knew what a victim visa was, we
determine any error by the district court in excluding this testimony was harmless. Harmless error
exists when there is some incorrect conduct by the trial court which, on review of the entire record,
did not materially influence the jury in reaching a verdict adverse to a substantial right of the
defendant. [CITATION].
In his appellate brief, Santos asserts that regardless of Carmen’s answer to the question,
the line of inquiry would have likely ceased. Therefore, even if Carmen had responded that she
knew what a victim visa was, the only evidence pertaining to victim visas would have been
Carmen’s response and Alma’s testimony that she did not know what they were. Accordingly, the
record would not have contained any evidence as to what a victim visa was, who was eligible for
one, or what the process was to obtain one. With this, even when assuming Carmen would have
answered yes to the question, we cannot say that her knowing what a victim visa was, without any
other evidence, would have provided Santos a stronger defense that materially altered the jury’s
verdict.
We conclude that without an offer of proof, this assignment of error fails. However, even
if we assumed the district court erred in excluding a potential affirmative response by Carmen, that
error was harmless.
2. FIRST MOTION FOR NEW TRIAL
Santos next assigns the district court erred in partially denying his motion for new trial and
not vacating his conviction on count II. As there was an evidentiary hearing on Santos’ motion for
new trial, the applicable standard of review is whether the district court abused its discretion in
partially denying the motion. See [CITATION].
In the district court’s order on Santos’ motion, it analyzed whether Santos’ rights were
violated under [CITATION] or [CITATION]. In [CITATION], the U.S. Supreme Court held that the knowing use of false testimony by a prosecutor in a criminal
case violates the defendant’s right to due process. And in [CITATION], it held that the prosecution has a
duty to disclose all favorable evidence to a criminal defendant prior to trial.
In upholding Santos’ conviction on count II, the district court found his rights were not
violated under [CITATION] or [CITATION]. The district court explained that while the State’s failure to correct
Alma’s false testimony constituted prosecutorial misconduct under [CITATION] and prejudiced his
conviction on count I, it did not prejudice his conviction on count II. In coming to this conclusion,
the court determined the perjured testimony did not undercut “the credibility of witnesses whose
testimony form[ed] the bases of his conviction.” Therefore, it concluded the evidence did not
prejudice Santos’ conviction on count II and therefore did not violate his rights under [CITATION] or
[CITATION].
On appeal, it appears Santos only takes issue with the district court’s finding that the State’s
misconduct did not constitute a [CITATION] violation. There are three primary components of a [CITATION]
violation. [CITATION]. First, the evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is impeaching. Id.
Second, the State must have suppressed the evidence, either willfully or inadvertently. Id. Third,
prejudice from the suppression must have ensued. Id.
Santos asserts that the undisclosed evidence of Alma’s victim visa application prejudiced
him because that evidence could have been used to exculpate himself and to impeach Alma’s false
testimony. Under Neb. Rev. Stat. § 29-1912 (Cum. Supp. 2022), Nebraska’s primary discovery
statute in criminal cases, whether a prosecutor’s failure to disclose evidence results in prejudice
depends on whether the information sought is material to the preparation of the defense, meaning
that there is a strong indication that such information will play an important role in uncovering
admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting
impeachment or rebuttal.
We determine the district court did not abuse its discretion in finding that the State’s failure
to disclose evidence of Alma’s visa application did not prejudice Santos’ conviction on count II
under [CITATION]. We come to this conclusion because Alma was not related to that allegation of sexual
assault.
Count II dealt with the allegation that Santos sexually assaulted H.B.P. The record reflects
that the evidence supporting Santos’ conviction for sexually assaulting H.B.P. did not come from
Alma or her children. The only time Alma testified about H.B.P.’s assault was when she explained
that Sarai had told her about it previously and that she had informed someone at Project Harmony
about it when she took A.P. there for his forensic interview. And while A.P. originally testified
that he witnessed H.B.P. being abused, he retracted that statement on cross-examination.
The evidence that supported Santos’ conviction on count II was not impacted by the
revelation of Alma’s visa application. The overwhelming majority of the supporting evidence
came from the detective who transported H.B.P. to Project Harmony and observed his interview,
the forensic interviewer who conducted his interview, the mental health practitioner who worked
with him following his disclosure, the nurse practitioner who conducted his medical examination,
Carmen, and H.B.P.’s own testimony. While evidence of Alma’s visa application may have been
used to impeach her and A.P., it would not have had any meaningful impact on the testimonies of
those who provided most of the evidence regarding H.B.P.’s abuse. As such, we believe the district
court’s decision that Santos was not prejudiced by the undisclosed evidence of Alma’s application
was not clearly untenable or unreasonable. Therefore, we conclude that the district court did not
abuse its discretion in denying Santos’ first motion for new trial as to count II.
. SECOND MOTION FOR NEW TRIAL
Santos next assigns the district court abused its discretion by denying his second motion
for new trial. Santos filed his second motion for new trial after discovering information that
Carmen had a pending victim visa application while his trial ensued.
In denying the motion, the district court essentially found that Santos was unable to
demonstrate prosecutorial misconduct because there was no evidence that the prosecutors or any
law enforcement officer connected to the case was aware of the visa application. It then found that
Santos was unable to prove any of the three Brady elements because Carmen’s application was
already filed prior to trial and had “nothing whatsoever” to do with Santos or any alleged motive
by Carmen to testify against him. As such, it determined the evidence had “no perceivable
impeachment value.” More so, the court explained in great detail how evidence of Carmen’s
application was not material because the record contained substantial evidence supporting Santos’
conviction on count II. Even further, the court found that with reasonable diligence, Santos could
have discovered the evidence on his own.
In Santos’ argument he blends two related, but different, propositions of law. He contends
that while the district court found that Carmen’s visa application had no impeachment value under
Brady, it failed to include any discussion as to whether the evidence was exculpatory. He asserts
that when viewing Carmen’s visa application in this light, the Brady elements are met because the
evidence helps prove his theory that Alma and Carmen conspired to falsely accuse him so they
could obtain victim visas. Intertwined in this argument, he also vaguely asserts that Carmen’s visa
application constituted newly discovered evidence that was so substantial that a different result
might have occurred it if was previously discovered. We reject both arguments.
As stated earlier, there are three primary components of a Brady violation. [CITATION].
First, the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching. [CITATION]. Second, the State must have suppressed the evidence, either willfully or inadvertently. [CITATION]. Third, prejudice from the
suppression must have ensued. [CITATION].
Separately, Neb. Rev. Stat. § 29-2101 (Reissue 2016) allows for a new trial upon the
discovery of new material evidence. To obtain a new trial based on newly discovered evidence, a
[SEGMENT 16]
defendant must show that the new evidence could not with reasonable diligence have been
discovered and produced at trial. [CITATION]. Additionally, the defendant must show the evidence is so substantial that a different result may
have occurred. Id. In other words, the defendant must show that if the evidence had been admitted
at the former trial, it probably would have produced a substantially different result. Id.
We determine the district court did not abuse its discretion in denying Santos’ second
motion for new trial. The evidence of Carmen’s victim visa was neither prejudicial to Santos’
conviction for count II under Brady’s third element nor was it newly discovered evidence that was
so substantial that, if it had been known about at trial, it would have changed the outcome of the
proceedings.
We come to these conclusions because the evidence that Carmen had applied for a victim
visa in relation to a separate incident involving a different defendant, a different victim, and
different allegations would not have provided the exculpatory evidence Santos asserts. While the
evidence might have shown that Carmen was aware of the victim visa process, it did not provide
any motive for her to conspire against Santos with Alma to obtain immigration benefits. In fact,
evidence of Carmen’s completed victim visa application would have had more value to counter
Santos’ main theory of defense than to discredit Carmen and H.B.P.’s testimonies. It would have
shown that Carmen had already done everything to obtain a victim visa and put into question why
she needed to falsely accuse Santos to get one when she already had an application pending. We
therefore conclude the district court did not abuse its discretion in denying Santos’ second motion
for new trial.
. INEFFECTIVE ASSISTANCE OF COUNSEL
Santos next assigns his trial counsel was ineffective for (1) failing to properly investigate
and discover evidence regarding Alma and Carmen’s victim visas; (2) failing to depose two of
Sarai’s children; and (3) not filing a motion to sever the separate charges against him.
When a defendant’s trial counsel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is
known to the defendant or is apparent from the record; otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding. [CITATION]. The fact that an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. Id. The determining factor is whether the record is
sufficient to adequately review the question. Id.
To prevail on a claim of ineffective assistance of counsel under [CITATION], the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. [CITATION]. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a lawyer with ordinary training
and skill in criminal law. Id. To show prejudice under the prejudice component of the [CITATION]
test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s
deficient performance, the result of the proceeding would have been different. [CITATION].
A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
(a) Failure to Discover Alma and Carmen’s Visa Applications
Santos assigns his trial counsel was ineffective for failing to properly investigate and
discover evidence of Alma and Carmen’s victim visa applications prior to trial.
We determine the record is sufficient to resolve this claim on direct appeal and conclude
that Santos did not suffer prejudice from his trial counsel failing to discover Alma and Carmen’s
victim visa applications. We first note that when analyzing whether Santos was prejudiced by the
alleged failures of his trial counsel, we only look to his conviction on count II. Because Santos
was acquitted of count III and his conviction on count I was vacated and the renewed charge was
later dismissed by the State, count II is all that remains and, therefore, is the only conviction that
he could have suffered prejudice in relation to.
With this framework, we conclude that Santos’ trial counsel failing to discover evidence
of Alma’s visa application did not prejudice him because this evidence would not have affected
the vast majority of evidence that supported his conviction on count II. Even if Santos possessed
evidence of Alma’s application at trial and used that information to successfully impeach Alma
and A.P., there still would have been substantial evidence to support Santos’ conviction. Therefore,
we cannot say that there was a reasonable probability that but for Santos’ counsel failing to
discover Alma’s visa application, the result of the proceeding would have been different.
Similarly, we determine Santos’ trial counsel failing to discover evidence of Carmen’s visa
application did not prejudice his conviction. As discussed, because Carmen’s visa application had
been finalized prior to the start of the trial, its existence provided little to no value to Santos’
defense. While Santos argues that prior knowledge of Carmen’s application would have allowed
him to ask more pointed questions concerning her visa, he fails to provide any details as to how
that would have benefited him. Therefore, we determine there was not a reasonable probability
that but for Santos’ counsel’s failing to discover Carmen’s visa application, the result of the
proceeding would have been different.
(b) Failure to Depose Witnesses
Santos next argues that his trial counsel was ineffective for failing to depose two of Sarai’s
children, K.A. and R.A., who lived in Alma’s house around the time of A.P.’s sexual abuse. He
essentially asserts that because these children lived in the same home as A.P. when he was abused
and were not called by the State as witnesses, their testimony would have provided exculpatory
evidence that the abuse did not occur.
We determine the record is sufficient to resolve this issue on direct appeal. Beyond the
flaws in Santos’ argument that two children never seeing abuse, which was alleged to have
occurred in the middle of the night, equates to that abuse not occurring, Santos’ claim fails because
K.A. and R.A. did not live with H.B.P. at the time of his abuse. The evidence showed that Santos
abused H.B.P. prior to his family living with Alma, Sarai, and their children. Because the evidence
demonstrated that H.B.P.’s abuse did not occur while he was living with K.A. and R.A., their
testimony would not have provided any insight as to whether Santos sexually assaulted H.B.P.
Accordingly, Santos’ trial counsel was not deficient in failing to depose K.A. and R.A. and Santos
did not suffer any prejudice as a result.
- 10 - (c) Failure to Sever Counts
Santos next assigns his trial counsel was ineffective for failing to file a motion to sever the
three counts.
There is no constitutional right to a separate trial. [CITATION]. Instead, the joinder or separation of charges for trial is governed by Neb. Rev. Stat.
§ 29-2002 (Reissue 2016). Summarized, whether offenses were properly joined under § 29-2002
involves a two-stage analysis: (1) whether the offenses were sufficiently related so as to be joinable
and (2) whether the joinder was prejudicial to the defendant. [CITATION]. Joined charges
do not usually result in prejudice if the evidence is sufficiently simple and distinct for the jury to
easily separate evidence of the charges during deliberations. [CITATION]. Prejudice from joinder cannot be shown if evidence of one charge would have
been admissible in a separate trial of another charge. [CITATION]. There is a strong presumption against
severing properly joined counts. [CITATION].
Santos asserts the State’s evidence was not sufficiently simple and the charges were not
adequately connected to warrant a joint trial. He then essentially contends his counsel’s failure to
sever the charges prejudiced him because the cumulative effect of the jury hearing that he had
committed multiple sexual assaults unfairly prejudiced the jury against him. As such, Santos
asserts that if the State had been unable to present evidence of him committing multiple assaults,
the jury could have come to a different conclusion.
The State asserts Santos did not suffer prejudice as a result of his charges being tried
together because the evidence of each assault would have been admissible in separate trials
pursuant to Neb. Rev. Stat. § 27-414 (Reissue 2016). Section 27-414(1) provides:
In a criminal case in which the accused is accused of an offense of sexual assault, evidence
of the accused’s commission of another offense or offenses of sexual assault is admissible
if there is clear and convincing evidence otherwise admissible under the Nebraska
Evidence Rules that the accused committed the other offense or offenses.
Thus, under § 27-414, assuming that notice and hearing requirements are met and the evidence
survives a more-probative-than-prejudicial balancing test, evidence of prior sexual assaults are
admissible if proved by clear and convincing evidence. [CITATION]. Clear and convincing evidence means that amount of evidence which
produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.
[CITATION].
We determine the record is sufficient to review this question on direct appeal. We begin by
analyzing whether count I and count II were properly joined and then analyze whether it was proper
to also join count III.
We determine that Santos did not suffer prejudice as a result of count I and count II being
tried together because evidence of each assault would have been admissible in separate trials.
Based on our review of the evidence produced at trial, we believe evidence of each sexual assault
would have been admissible under § 27-414 because the evidence would have supported a finding
that Santos committed both sexual assaults by a clear and convincing standard.
[SEGMENT 17]
- 11 - The evidence supporting A.P.’s sexual assault came primarily from his own account. He
testified about the timeline of Santos living in his house and where he slept while he stayed there.
He provided a detailed account of the abuse and identified Santos as the perpetrator. He described
that Santos woke him up in the middle of the night, relocated him to the living room where Santos
slept, and had him take off his shorts. He further recalled that Santos took off his own shorts, told
him to get on his knees, and then commanded him to perform oral sex on him before anally
penetrating him. A.P. was able to describe Santos’ hands on his head, the positions of their bodies
during the incident, how Santos thrusted back and forth, his own in-time reaction to feeling pain
and crying, and Santos ejaculating into his mouth.
Similarly, much of the evidence supporting H.B.P.’s sexual assault came from his specific
recollection of the abuse. H.B.P. recalled what grade he was in when the abuse occurred, the
location of the house it occurred in, the fact it occurred in the basement, the position of their bodies
while it happened, how Santos’ body moved, and that Santos told him not to tell his mother
afterward. He also identified Santos as his abuser during his forensic interview and at trial.
Additionally, H.B.P. provided a similar account to the nurse practitioner that medically
examined him. He told her that “Mario” had touched the inside of his butt with his private when
he was 5 years old. Further, the therapist who worked with H.B.P. following his disclosure
indicated that he exhibited symptoms of a child who had suffered abuse. She described how H.B.P.
would have flashbacks, felt nervous, and often became inconsolably sad. She also explained how
he displayed certain regressive behaviors, such as accidents at night and anxiety of going to the
bathroom by himself. With these behaviors, she diagnosed H.B.P. with post-traumatic stress
disorder and commented on how difficult it was for him to disclose his trauma.
Further, there was no indication that A.P. and H.B.P. talked to one another about their
abuse or that they were influenced by anyone to make their disclosures. Their accounts display
similar details of Santos targeting young boys with whom he was residing and assaulting them in
the middle of the night. Because the State would have been able to prove that these sexual assaults
occurred by clear and convincing evidence, evidence of each assault would have been admissible
at both trials pursuant to § 27-414 if count I and II were tried separately. Therefore, Santos is
unable to show that he was prejudiced by the joinder of these charges.
For count III, we do not need to consider whether the evidence of Santos’ alleged sexual
assault of Alma would have been admissible in separate trials. We determine the evidence
supporting count III was simple and distinct enough from the evidence of the other offenses for
the jury to separate the charges and associated evidence.
As described, count I and count II involved allegations that Santos sexually assaulted
young boys in the middle of the night by coercing them into sexual acts. Those accounts came
from the children themselves, along with various professionals who worked with H.B.P. In
contrast, count III involved an allegation that Santos sexually assaulted an unconscious adult
woman in front of her child who was tied to a chair. As the facts involved are disparate, we believe
the jury could easily separate evidence of these charges during deliberations.
And as was demonstrated, the jury finding Santos not guilty on count III indicates that the
jury was, in fact, able to consider each count individually. The Nebraska Supreme Court has
repeatedly signaled that when a defendant is found guilty on some charges, but not guilty on others,
the defendant cannot show the joinder of the charges prejudiced them because the jury
- 12 -
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-boppre', which should be replaced with `[CITATION]`. demonstrated that it was able to consider the counts individually. See [CITATION]. See, also, [CITATION]. We therefore determine Santos did not suffer prejudice by the joinder of count III with counts I and II.
VI. CONCLUSION
We conclude the district court did not abuse its discretion in sustaining the State’s objection
regarding Carmen’s knowledge of victim visas because Santos did not make an offer of proof. The
district court also did not abuse its discretion in denying Santos’ motions for new trial as to count
II because Santos was not prejudiced by Alma’s perjured testimony and the nondisclosure of her
and Carmen’s visa applications.
AFFIRMED.
- 13 -
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2024 06:09 PM CDT
- 381 -
Nebraska Supreme Court Advance Sheets
Nebraska Reports
[CITATION]
an incapacitated person.
Becky S., appellee, v.
Patrick W., appellant.
___ N.W.3d ___
Filed April 19, 2024. No. S-23-209.
. Estates: Judgments: Appeal and Error. An appellate court reviews
probate cases for error appearing on the record made in the county court.
When reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
. Decedents’ Estates: Appeal and Error. An appellate court, in review-
ing a probate court judgment for errors appearing on the record, will
not substitute its factual findings for those of the probate court where
competent evidence supports those findings.
. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit evi-
dence over a hearsay objection or exclude evidence on hearsay grounds.
. Appeal and Error. In a de novo review, an appellate court reaches a
conclusion independent of the trial court.
. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the statute’s language. Nor is it within
the province of a court to read anything plain, direct, or unambiguous
out of a statute. - 382 -
Nebraska Supreme Court Advance Sheets
Nebraska Reports
IN RE GUARDIANSHIP OF PATRICK W.
Cite as 316 Neb. 381
8. Statutes: Words and Phrases. Words and phrases in a statute shall be
construed and understood according to the common and approved usage
of the language; but technical words and phrases and such others as
may have acquired a peculiar and appropriate meaning in the law shall
be construed and understood according to such peculiar and appropri-
ate meaning.
9. Statutes. A court must give effect to all parts of a statute, and if it can
be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
10. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
11. Statutes. When possible, a court will try to avoid a statutory construc-
tion that would lead to an absurd result.
12. ____. To the extent there is a conflict between two statutes, the specific
statute controls over the general statute.
13. Guardians and Conservators: Guardians Ad Litem: Evidence. In
guardianship proceedings, the information specifically described in the
first sentence of Neb. Rev. Stat. § 30-4204 (Reissue 2016) is admissible
in evidence when the proponent shows such information or material (1)
was obtained by the guardian ad litem informally or by subpoena and (2)
is regarding the person for whom the guardian ad litem was appointed.
14. Appeal and Error. Conclusory assertions unsupported by coherent ana-
lytical argument fail to satisfy the requirement that an appellant’s brief
must both specifically assign and specifically argue errors.
Appeal from the County Court for Saunders County:
Andrew R. Lange, Judge. Affirmed.
Adaline K. Baker for appellant.
Heather S. Colton, of Pollack & Ball, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Patrick W. appeals from an order of the county court finding
him to be incapacitated and appointing a permanent guard-
ian. He assigns error to the admission of an exhibit over his - 383 -
Nebraska Supreme Court Advance Sheets
[CITATION]
[SEGMENT 18]
hearsay objection, and he argues that without that exhibit,
the evidence was insufficient to show he is incapacitated. We
affirm the county court’s order.
I. BACKGROUND
In 2009, Patrick suffered a stroke at the age of 32. In
2014 or 2015, Adult Protective Services (APS), a division
of the Nebraska Department of Health and Human Services,
opened an investigation due to concerns about Patrick’s medi-
cal needs and financial management. After working with him
for several years, an APS caseworker was concerned that
Patrick was vulnerable to financial exploitation, self-neglect,
and undue influence. The APS caseworker contacted an attor-
ney to inquire about establishing a guardianship, and Becky
Stamp was identified as someone who was willing to serve as
Patrick’s guardian.
. Petition for Guardianship
In 2022, Stamp filed a verified petition in the county court
for Saunders County seeking to be appointed as Patrick’s
temporary and permanent guardian. The petition alleged that
Patrick was incapacitated due to a stroke and that he lacked
sufficient understanding or capacity to make or communicate
responsible decisions concerning his person and property. 1
The court appointed Stamp to serve as Patrick’s temporary
guardian. A few months later, Patrick moved to substitute his
cousin, Terry Crandall, as his temporary guardian, and the
court granted that motion. The court also appointed an attor-
ney to serve as Patrick’s guardian ad litem (GAL) and ordered
Patrick to undergo a neuropsychological evaluation at a reha-
bilitation hospital.
In October 2022, the neuropsychological evaluation was
completed, and a written report was prepared. The admissibil-
ity of that report is the primary issue on appeal.
1
[CITATION] - 384 -
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IN RE GUARDIANSHIP OF PATRICK W.
Cite as [CITATION]
. Guardianship Hearing
An evidentiary hearing on the guardianship petition was
held in January 2023. Stamp and Patrick both appeared for
the hearing with counsel, and Patrick’s GAL was also pres-
ent. The county court received several exhibits into evidence
and heard testimony from six witnesses, including Patrick. As
relevant to the issues on appeal, we summarize the witness
testimony and discuss two of the hearing exhibits.
(a) GAL Report
The GAL did not testify at the hearing, but her report
was admitted into evidence without objection after the par-
ties agreed to redact certain statements within it. The GAL’s
report recommended a full guardianship based on her opinion
that without assistance, Patrick was not able to maintain safe
and appropriate independent housing, arrange for his medical
care and comply with medical instructions, protect his per-
sonal effects, apply for governmental benefits to which he may
be entitled, or independently receive and manage his money
and property.
The GAL described her personal observations that Patrick
struggled to follow a consistent timeline and had difficulty
answering questions and accurately recalling information and
events. The GAL also expressed concern that Patrick would
not talk or meet with her unless his roommate and landlord,
Rodney Volker, was also present. The GAL noted that Patrick
allowed Volker to speak for him and that Patrick appeared
susceptible to Volker’s influence.
The GAL’s report stated that she had received and reviewed
the neuropsychological evaluation report ordered by the court
and believed the report supported her conclusion that a full
guardianship was appropriate. The GAL’s report quoted sev-
eral statements from the neuropsychological report, includ-
ing that Patrick’s diagnosis was “Major Neurocognitive
Disorder” and that Patrick’s neurological testing revealed
“significant global impairment, including in the domains of - 385 -
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Cite as [CITATION]
attention/processing speed, language, memory, visuospa-
tial functioning, and executive functioning” and “significant
expressive aphasia.”
(b) Neuropsychological Report
At the start of the guardianship hearing, Patrick’s counsel
moved in limine to exclude the neuropsychological report as
inadmissible hearsay. In response, Stamp argued the report was
admissible under Neb. Rev. Stat. § 30-4204 (Reissue 2016),
which provides, in relevant part:
The guardian ad litem may obtain, informally or by
subpoena, the following information regarding the per-
son for whom the guardian ad litem has been appointed:
(1) A report from any medical provider [or] provider of
psychological services . . . . Any material obtained by a
guardian ad litem pursuant to this section is admissible
in evidence.
The county court overruled Patrick’s motion in limine.
Later during the hearing, Patrick’s counsel renewed the
hearsay objection when Stamp offered the neuropsychological
report as an exhibit. Counsel argued that despite the admis-
sibility provision in § 30-4204, “the rules of evidence still
apply,” and counsel asked the court to exclude the report
because it contained inadmissible hearsay. Stamp disagreed
and reiterated her position that the report was admissible in
evidence under the plain language of § 30-4204 because it
was a medical or psychological report obtained by the GAL
regarding the person for whom she was appointed. Before
ruling on the objection, the court took a short recess for
the stated purpose of giving the parties an opportunity to
consult and agree to redactions of the neuropsychological
report. After conferring, the parties advised the court they
could not reach an agreement; the court overruled the hearsay
objection and received the entire neuropsychological report
into evidence.
As relevant to the issues on appeal, the neuropsychological
report concluded that Patrick met the criteria for a diagnosis - 386 -
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[CITATION]
of “Major Neurocognitive Disorder Due to Another Medical
Condition (history of a stroke), with Behavioral Disturbance.”
The report also described that Patrick has “expressive apha-
sia” and struggles significantly to convey his thoughts, noting
that during the neuropsychological evaluation, Patrick spoke
very little, and when he did speak, the evaluator had diffi-
culty understanding him. The report indicated that Patrick’s
neuropsychological testing revealed significant global impair-
ment in the domains of attention/processing speed, language,
memory, visuospatial functioning, and executive functioning.
In the evaluator’s clinical judgment, Patrick’s poor judgment
and insight placed him at a “significantly increased risk”
of emotional, financial, sexual, and other exploitation and
manipulation. The neuropsychological report concluded:
Due to his current level of functioning, it is the clini-
cal judgment of this provider that [Patrick] would best
be served by the assignment of a permanent guardian to
ensure facilitation of safe decision-making and to procure
for ongoing needs. I can say with a reasonable degree of
certainty that these deficits are unlikely to improve to the
point where he would not need this level of support, given
that it has been over 10 years since his stroke.
(c) Witness Testimony
(i) Stamp’s Case in Chief
During Stamp’s case in chief, three witnesses were called to
testify. The APS caseworker testified about her history working
with Patrick and her concern that his cognitive deficits caused
him to neglect his own care. She also testified about concerns
that Patrick was being financially exploited by Volker.
Stamp testified that she too was concerned about Volker’s
financial influence on Patrick, explaining that during the time
she served as Patrick’s temporary guardian, Volker “always
called and asked for money. Never Patrick.” Stamp also testi-
fied that she was concerned about Patrick’s ability to maintain
eligibility for Medicaid benefits without a guardian. - 387 -
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IN RE GUARDIANSHIP OF PATRICK W.
Cite as [CITATION]
Crandall testified that while she served as Patrick’s tempo-
rary guardian, it was challenging to assess Patrick’s well-being
because Volker was always present when she tried to talk with
Patrick and Volker would influence the discussion. Crandall
testified that Patrick would answer the telephone when she
called but that “within the next minute or so, [Volker] is on the
phone telling me what I will or what I will not do.” She also
testified that there were instances where Volker had texted her
from Patrick’s cell phone posing as Patrick. Crandall testified
that she had known Patrick since he was 18 years old, and
based on her interactions with him since 2022, she believed he
needed a permanent guardianship.
(ii) Patrick’s Case in Chief
During Patrick’s case in chief, three witnesses were called
to testify. Patrick testified on his own behalf. He generally
opposed establishing a guardianship, explaining it was not
something he needed. Patrick testified that Volker “helps
[him] a lot” and that Volker is “a good accountant.” Some of
Patrick’s testimony was difficult to follow and not responsive
to the question being asked. For instance, when asked why he
objected to the guardianship, Patrick stated:
Guardianship? Because it’s in — I do — I wake up,
I go and take my meds, go to transportation, go to
Walmart, groceries, back home, whatever — in and out.
The kitchen, check the mail, and that’s it. So either — I
don’t know, there’s nothing else. I mean, there’s making
other friends, like making friends. I like it, so.
A witness, who described herself as a mutual friend of
Patrick’s and Volker’s, testified that she had known Patrick
for 2 or 3 years and had seen no evidence that Patrick could
be taken advantage of in his current living situation. She testi-
fied that although Patrick was slow to answer questions, she
thought his answers were appropriate. She also thought that
since moving in with Volker, Patrick looked healthier and
seemed happier than he was previously. - 388 -
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IN RE GUARDIANSHIP OF PATRICK W.
Cite as 316 Neb. 381
Volker testified that he had known Patrick for more than a
decade and reconnected with him in 2021. When they recon-
nected, Volker observed Patrick to be “[w]orse than home-
less,” and “[h]e was nothing like he is today.” Volker testi-
fied that Patrick does his own cooking, laundry, bedsheets,
and vacuuming. Volker transported Patrick to appointments,
to the grocery store, and to visit Patrick’s stepmother, and
Patrick paid Volker for gas. Volker expressed concerns about
Patrick’s ability to access funds if Crandall were to become
his permanent guardian. Volker admitted to interfering with
Patrick’s conversations with Crandall, but he did not think
Patrick needed a guardian because “he’s just as normal as
anybody else.”
At the close of the evidence, the court took the matter under
advisement and requested written closing arguments.
. County Court Order
In an order entered February 15, 2023, the court found clear
and convincing evidence that Patrick was incapacitated. The
court determined that a full guardianship was the least restric-
tive alternative available and appointed Crandall to serve as
Patrick’s permanent guardian. Patrick filed this timely appeal,
which we moved to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Patrick assigns, restated, that the county court erred in (1)
receiving the neuropsychological report into evidence over his
hearsay objection and (2) finding that he is incapacitated and
that a full guardianship is the least restrictive means available
to provide for his continuing care.
III. STANDARD OF REVIEW
[1] An appellate court reviews probate cases for error
appearing on the record made in the county court. 2 When
reviewing a judgment for errors appearing on the record, the
2
[CITATION] - 389 -
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inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. 3
[2] An appellate court, in reviewing a probate court judg-
ment for errors appearing on the record, will not substitute its
factual findings for those of the probate court where competent
evidence supports those findings. 4
[3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. 5
[4,5] Apart from rulings under the residual hearsay excep-
tion, an appellate court reviews for clear error the factual find-
ings underpinning a trial court’s hearsay ruling and reviews
de novo the court’s ultimate determination to admit evidence
over a hearsay objection or exclude evidence on hearsay
grounds. 6 In a de novo review, an appellate court reaches a
conclusion independent of the trial court. 7
IV. ANALYSIS
. Admissibility of Materials Obtained
Pursuant to § 30-4204
The primary issue on appeal is the admissibility of informa-
tion and material obtained by a GAL pursuant to § 30-4204.
That statute provides in full:
The guardian ad litem may obtain, informally or by
subpoena, the following information regarding the per-
son for whom the guardian ad litem has been appointed:
(1) A report from any medical provider, provider of
psychological services, law enforcement, [APS] agency,
or financial institution; and (2) any account or record of
3
[CITATION] - 390 -
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IN RE GUARDIANSHIP OF PATRICK W.
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any business, corporation, partnership, or other business
entity which such person owns or in which such person
has an interest. Any material obtained by a [GAL] pursu-
ant to this section is admissible in evidence. 8
Patrick does not dispute that the neuropsychological report
at issue pertained to him, nor does he dispute that it is prop-
erly characterized as “[a] report from any medical provider
[or] provider of psychological services” within the meaning of
§ 30-4204. And although Patrick argues there was no evidence
the GAL obtained the neuropsychological report pursuant to
§ 30-4204, the record refutes that argument because the GAL’s
report, which was admitted into evidence without objection,
plainly lists the neuropsychological report as one of the reports
obtained by the GAL as part of her investigation.
As such, the only disputed issue regarding § 30-4204 is the
proper interpretation of the final sentence, which provides:
“Any material obtained by a [GAL] pursuant to this section
is admissible in evidence.” To address this issue, we begin by
reviewing the familiar rules of statutory construction that guide
our analysis.
[6-8] In construing a statute, a court must determine and
give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered
in its plain, ordinary, and popular sense. 9 It is not within the
province of a court to read a meaning into a statute that is not
warranted by the statute’s language. 10 Nor is it within the prov-
ince of a court to read anything plain, direct, or unambiguous
out of a statute. 11 Words and phrases in a statute “shall be con-
strued and understood according to the common and approved
8
§ 30-4204 (emphasis supplied).
9
[CITATION]
10
See id.
11
See id. - 391 -
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usage of the language; but technical words and phrases and
such others as may have acquired a peculiar and appropriate
meaning in the law shall be construed and understood accord-
ing to such peculiar and appropriate meaning.” 12
[9-12] A court must give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be
rejected as superfluous or meaningless. 13 Components of a
series or collection of statutes pertaining to a certain subject
matter are in pari materia and should be conjunctively consid-
ered and construed to determine the intent of the Legislature,
so that different provisions are consistent, harmonious, and
sensible. 14 When possible, a court will try to avoid a statutory
construction that would lead to an absurd result. 15 To the extent
there is a conflict between two statutes, the specific statute
controls over the general statute. 16
With these principles in mind, we turn to the arguments of
the parties.
(a) Arguments of Parties
Patrick argues that courts should not construe the last sen-
tence of § 30-4204 to preclude applicability of the Nebraska
Evidence Rules and, in particular, the hearsay rules when
determining the admissibility of information and materials
obtained by a GAL. Patrick urges us to construe the phrase
“admissible in evidence” to mean “anything admissible under
the court’s Rules of Evidence.” 17
Stamp disagrees. At oral argument before this court, Stamp’s
counsel argued that the plain and ordinary meaning of the
12
Neb. Rev. Stat. § 49-802(5) (Reissue 2021).
13
[CITATION]
17
Brief for appellant at 11. - 392 -
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statutory phrase “admissible in evidence” means “proper to
be received” in evidence. She generally described the admis-
sibility provision in § 30-4204 as a “carve out” to the rules of
evidence, and she argued that when the conditions of the stat-
ute are met, the materials specifically described in § 30-4204
can properly be admitted into evidence over a hearsay objec-
tion. To support this argument, Stamp’s appellate brief gen-
erally relies on our 2022 opinion in [CITATION]
The issue in [CITATION] was the admis-
sibility of a GAL’s written report. That report was 8 pages
long and included as an attachment approximately 80 pages
of material the GAL had obtained pursuant to § 30-4204.
When the petitioner offered the GAL’s report with attach-
ments, the court sustained the respondent’s hearsay objections
and refused to receive the exhibit into evidence. The petitioner
tried several more times to offer the exhibit without success,
but at no time did she attempt to separately offer only the
materials obtained pursuant to § 30-4204. On appeal, the peti-
tioner argued the court erred in failing to admit the entire GAL
report under § 30-4204.
We found no error in that case, reasoning that the plain
terms of the admissibility provision in § 30-4204 referenced
only the materials a GAL is empowered to obtain as part of
his or her investigation and “does not pertain to a report cre-
ated by a GAL.” [CITATION] We noted that GAL reports are governed by
a separate statute that, unlike § 30-4204, contains no provision
governing admissibility. [CITATION] The opinion in [CITATION] emphasized that it is “the proponent’s responsibility
to separate the admissible and inadmissible parts” of an exhibit
and noted that “[w]hen part of an exhibit is inadmissible, a
[CITATION] - 393 -
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IN RE GUARDIANSHIP OF PATRICK W.
Cite as 316 Neb. 381
trial court has discretion to reject the exhibit entirely or to
admit the admissible portion.” 21 Because the petitioner in [CITATION] had not separately offered just the
materials obtained by the GAL pursuant to § 30-4204, we
found no abuse of discretion in refusing to admit the entire
GAL report. And we expressly declined to separately consider
the admissibility of the information and materials obtained by
the GAL pursuant to § 30-4204.
Although our opinion in [CITATION] did
not address whether materials obtained by a GAL pursuant to
§ 30-4204 are admissible over a hearsay objection, we moved
the instant appeal to our docket to address that question. We
turn to it now.
(b) Resolution
Section 30-4204 contains two sentences, and we consider
them both when construing the meaning of the statute. The first
sentence describes several categories of information that GALs
are authorized to obtain, either informally or by subpoena,
regarding the person for whom they have been appointed. And
the second sentence of the statute provides, without further
condition, that “[a]ny material obtained by a guardian ad litem
pursuant to this section is admissible in evidence.” 22
Black’s Law Dictionary defines “admissible” as “[c]apable
of being legally admitted; allowable; permissible,” 23 and it
defines “admissible evidence” as “[e]vidence that is relevant
and is of such a character . . . that the court should receive
it.” 24 We think these common definitions are appropriately
applied to the phrase “admissible in evidence” as it is used
in § 30-4204. As we will explain, in enacting § 30-4204, we
21
[CITATION]
22
§ 30-4204.
23
Black’s Law Dictionary 58 (11th ed. 2019).
24
Id. at 698. - 394 -
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understand the Legislature to have determined that it is “allow-
able” or “permissible” for a court to admit into evidence the
materials specifically described in the statute, but that the
admission of such materials is not mandatory.
We consider it significant that, unlike admissibility provi-
sions found elsewhere in the Nebraska statutes, the admis-
sibility language in § 30-4204 is neither mandatory, 25 nor
expressly conditioned on compliance with the Nebraska
Evidence Rules. 26 Instead, the plain language of § 30-4204
makes the information specifically described in the first sen-
tence of the statute “admissible in evidence” without further
qualification. We see no ambiguity in the phrase “admissible
in evidence,” and we construe it according to its plain lan-
guage and its common usage in the law to mean that courts
are permitted, but not required, to receive such information
into evidence.
As such, although Patrick is correct that the Nebraska
Evidence Rules generally apply in probate proceedings, we
reject his argument that the phrase “admissible in evidence”
in § 30-4204 must be construed to mean otherwise admissible
25
Cf., Neb. Rev. Stat. § 13-2805 (Reissue 2022) (providing “the book
or pamphlet shall be received as evidence”); Neb. Rev. Stat. § 15-735
(Reissue 2022) (providing certified copy “shall be received in evidence as
prima facie evidence of the regularity of all proceedings in the matter”);
Neb. Rev. Stat. § 21-1404 (Reissue 2022) (providing certified copies of
articles of incorporation “shall be received in all the courts of this state
as prima facie evidence of the facts contained therein and of the due
incorporation of such association”).
26
Cf., Neb. Rev. Stat. § 27-402 (Reissue 2016) (providing “[a]ll relevant
evidence is admissible except as otherwise provided by” federal or state
Constitution, federal or state statutes, other rules of evidence, or rules of
Nebraska Supreme Court); Neb. Rev. Stat. § 27-412 (2)(a) (Cum. Supp.
2022) (providing that evidence described in statute “is admissible, if
otherwise admissible under the Nebraska Evidence Rules”); Neb. Rev.
Stat. § 27-1005 (Reissue 2016) (providing that contents of official record
“if otherwise admissible” may be proved through evidence described in
statute). - 395 -
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under the rules of evidence. The construction urged by Patrick
would require that we read qualifying language into the stat-
ute that was not included by the Legislature. Instead, to the
extent the admissibility provision in § 30-4204 conflicts
with the rules of evidence, we conclude that § 30-4204 is
the more specific provision, and thus controls over the more
general statutes. 27
[13] We now hold that in guardianship proceedings, the
information specifically described in the first sentence of
§ 30-4204 is admissible in evidence when the proponent shows
such information or material (1) was obtained by the GAL
informally or by subpoena and (2) is regarding the person for
whom the GAL was appointed.
A trial court’s decision to admit or exclude evidence is
reviewed for an abuse of discretion, 28 and on this record, we
find no abuse of discretion in admitting the neuropsychologi-
cal report pursuant to § 30-4204 over Patrick’s hearsay objec-
tion. In fact, we note that Nebraska’s hearsay rule expressly
contemplates the possibility that “other rules adopted by the
statutes of the State of Nebraska” might render admissible
what would otherwise be considered inadmissible hearsay
under the rules of evidence. 29
The record shows that the neuropsychological report is a
medical or psychological report obtained by the GAL regard-
ing the person for whom she was appointed, and thus fits
squarely within the categories of information identified in
27
[CITATION]
29
Neb. Rev. Stat. § 27-802 (Reissue 2016). See, also, [CITATION] - 396 -
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§ 30-4204. Because the conditions of the statute were met, the
trial court was permitted to admit the report into evidence, and
it did not abuse its discretion in doing so. Patrick’s first assign-
ment of error has no merit.
. Sufficiency of Evidence
[14] Patrick’s second assignment of error is that there was
insufficient evidence adduced to support the county court’s
finding that he is incapacitated and that a full guardianship
is the least restrictive alternative. He argues that “[t]he only
evidence offered showing [he] might have a mental defi-
ciency” was the neuropsychological report. 30 And he contends
that without that report, “there is no evidence that [he has] a
mental deficiency that affects his ability to understand or the
capacity to make or communicate decisions for himself.” 31
Although Patrick’s brief alludes to other alleged deficiencies
in the evidence, we do not discuss them, because conclusory
assertions unsupported by coherent analytical argument fail to
satisfy the requirement that an appellant’s brief must both spe-
cifically assign and specifically argue errors. 32 We therefore
confine our analysis to Patrick’s argument that without the
neuropsychological report, there was insufficient evidence to
support the court’s guardianship.
We reject this argument as meritless. As we have already
explained, it was proper for the court to admit the neuro-
psychological report into evidence. And our review of the
record, including the neuropsychological report, shows ample
evidence to support the court’s finding that Patrick is inca-
pacitated and that a full guardianship is the least restrictive
alternative to provide for his continuing care or supervision. 33
30
Brief for appellant at 15.
31
Id.
32
See, [CITATION].
33
See, generally, Neb. Rev. Stat. § 30-2620 (Reissue 2016). - 397 -
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[CITATION]
The court’s decision conformed to the law, was supported by
competent evidence, and was neither arbitrary, capricious, nor
unreasonable.
V. CONCLUSION
For the foregoing reasons, we affirm the order of the county
court.
Affirmed. It appears that you've asked me to process a part of a court ruling, but the text of the court ruling itself wasn't provided. Please provide the specific text or excerpt from the court ruling that contains the citations for me to assist you in removing and replacing the court ruling citations accurately.
[SEGMENT 21]
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
[CITATION]
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JAMAAL R. ABRAM, APPELLANT.
Filed January 23, 2024. No. A-22-869.
Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.
Affirmed.
Patrick McCormick for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, Chief Judge, and MOORE and BISHOP, Judges.
MOORE, Judge.
I. INTRODUCTION
Jamaal R. Abram appeals from the order of the district court for Douglas County, denying
his motion seeking postconviction relief following an evidentiary hearing. Finding no error, we
affirm.
II. STATEMENT OF FACTS
. CONVICTION AND SENTENCE
The charges in this case stemmed from events occurring in Omaha, Nebraska, in June 2008,
when the victim was at a cemetery visiting the grave of her boyfriend, a cousin of Abram, who
committed suicide approximately a year prior. A portion of the boyfriend’s extended family
believed the victim was somehow to blame for the boyfriend’s death. While at the cemetery, the
victim was confronted by Abram’s brother and three female companions and forced to go with
them. According to the brother, if anyone in the family encountered the victim, they were to take
her to the boyfriend’s mother because the boyfriend’s mother wanted to talk to her. Over the course
of several hours, Abram’s brother drove the victim to various locations, during which time he
spoke to Abram numerous times by cell phone. According to the trial testimony of Abram’s
brother, Abram told him to take the victim from the cemetery and directed him where to go.
Eventually, Abram’s brother received a call from a cousin (the brother of the deceased boyfriend),
who directed Abram’s brother to a particular isolated, dead-end location. Upon arriving, the
brother observed the vehicle of the cousin who had called him; he did not see anyone in the
cousin’s vehicle. After the brother parked, facing the cousin’s vehicle, an individual, dressed in
black, wearing gloves, and with a small revolver, came out of some nearby bushes. Both the brother
and the victim testified at trial that they recognized this individual as Abram. Abram shot the victim
multiple times. He then left the scene with the cousin in the cousin’s vehicle, and the brother left
in his vehicle. The victim survived her life threatening injuries.
In October 2008, the State filed an information in the district court, charging Abram with
attempted first degree murder, use of a deadly weapon in the commission of a felony, and criminal
conspiracy. Following trial, the jury found Abram guilty on all three charges. Abram’s first
attorney (referred to herein as “trial counsel”) withdrew, and a second attorney (referred to herein
as “appellate counsel”) was appointed to represent Abram for sentencing and direct appeal. The
court then sentenced Abram to consecutive prison sentences of 40 to 50 years, 40 to 50 years, and
20 to 30 years on the three convictions. See [CITATION]
. DIRECT APPEAL
Abram, represented by appellate counsel, filed a direct appeal, asserting that there was
insufficient evidence to sustain his convictions for attempted first degree murder and criminal
conspiracy and that he received excessive sentences. This court affirmed Abram’s convictions and
sentences. We also noted that while Abram’s brief included assertions that his trial counsel was
ineffective for failing to object to various jury instructions, no such issue was assigned as error on
appeal. See [CITATION]
. POSTCONVICTION PROCEEDINGS
(a) Postconviction Motion
On May 20, 2014, Abram, through postconviction counsel, filed his operative
postconviction motion. In his first claim, he alleged that he was denied the right to a fair trial in
various ways, including that the trial court made certain errors, that a key witness for the State
perjured himself, and that prosecutorial misconduct occurred when a trial witness was allowed to
perjure himself. In Abram’s second claim, he set forth multiple allegations of ineffective assistance
of trial counsel. Finally, in his third claims, Abram alleged that his appellate counsel was
ineffective for failing to assign as error or argue that he was denied his right to a fair trial pursuant
to the specific allegations of his first claim, failing to assign as error or argue that trial counsel was
ineffective for the reasons specified in his second claim, failing to assign as error that the trial court
presented improper jury instructions, and failing to properly assign errors in his direct appeal brief
that were deemed waived by this court.
Attachments to Abram’s postconviction motion included two letters from Abram’s brother
(one dated August 19, 2011, and the other undated). The August 2011 letter referenced the brother
feeling bad about having done “the unforgivable” to Abram, having dreams of being at Abram’s
trial “snitching,” having “lied on” Abram at his trial, being “brainwashed” by his own attorney,
and being “prepared a million times” before Abram’s trial “so everything would come out just
right,” including having been informed of “what [the victim] said so [the brother’s] lies would
collaborate with hers.”
In the second letter, the brother stated, “Anyway I realize that I made the most [expletive]
decision I ever made in my miserable . . . life by doing what I did and although you say you forgive
me I don’t forgive myself for that.” Later in the second letter, he stated:
Anyway bout that other shit with these lawyers and shit. Really most of it was my lawyer
relaying messages and shit to me about what they was saying. Telling me shit like if I could
give them more people the better off I would be. He used to try and get me to put [two
individuals] in it. He used to come tell me [the victim] said this so you would have to say
the same so your stories would collaborate. He lied and said you was telling on me. Them
[expletives] always used to be in there coaching me reminding me this is what happened
or this is what [the victim] said. I remember @ the trial my lawyer was like this is what the
prosecutor said happened so this is what your [sic] gonna have to say. Bro listen what you
need me to do write an affidavit or something. Just let me know what[’]s up and I will do
it.
He also stated, “Ay [sic] I love you with all my heart and I regret what I did with every second of
every day.”
The third item attached to Abram’s postconviction motion was an affidavit from the mother
of the victim’s deceased boyfriend. In her affidavit, the mother stated that if she had been called
to testify at Abram’s trial, she would have testified that she never spoke with any family member
about bringing the victim to her so they could talk, that she had spoken with the victim on several
occasions after the boyfriend’s death, and that she had the victim’s contact information and could
have contacted her directly if she had wanted to speak with her.
(b) Evidentiary Hearing
An evidentiary hearing was held before the district court on February 6, 2018, and May 28,
2019. The brother and the cousin testified at the hearing. The court also received depositions from
Abram, Abram’s trial and appellate attorneys, and the brother’s trial attorney; affidavits from the
brother and the prosecutor; and copies of the letters from the brother referenced above. We have
set forth details of this evidence as necessary in the analysis section below.
(c) Ruling
On November 1, 2022, the district court entered an order denying Abram’s claims for
postconviction relief. The court identified Abram’s “basic claims” in support of his motion to be
the denial of his right to a fair trial, ineffective assistance of trial and appellate counsel, the perjured
testimony of his brother, and being “[i]nnocent of the [c]rime.” The court found that each of the
issues raised in Abram’s claim to having been denied the right to a fair trial could have been
brought on direct appeal and were thus procedurally barred. Next, the court addressed the issues
raised in Abram’s claims of ineffective assistance of trial counsel and appellate counsel and found
them to be without merit. The court then addressed the issue of the allegedly perjured testimony
of Abram’s brother, who had identified Abram as the shooter at trial, and found no credible
evidence that the State knowingly used perjured testimony to secure Abram’s conviction. The
court specifically found the testimony of Abram’s brother during the evidentiary hearing not
credible. We have set forth further details of the court’s analysis of this issue below. Finally, the
court addressed Abram’s claim of innocence based on his cousin “now claiming for the first time
that he was actually the shooter in this case,” and not Abram or Abram’s brother. The court noted
case law discussing how a possible postconviction claim of actual innocence might be raised. The
court then discussed the relevant evidence in this case, both from trial and the postconviction
evidentiary hearing, and rejected this claim. In doing so, the court found that the “new testimony”
of the brother (the court referenced Abram’s first name here, but given the reference to “new
testimony,” appears to mean the brother) and his cousin was not credible and did not “overcome”
the trial testimony of the victim identifying Abram as the shooter.
Abram perfected the present appeal to this court.
III. ASSIGNMENTS OF ERROR
Abram assigns, restated, that the district court erred when it failed to find that (1) Abram
was denied the right to a fair trial based on certain specified errors by the trial court, Abram’s
brother perjuring himself, and prosecutorial misconduct with respect to knowingly allowing the
brother to give perjured or false testimony; (2) trial counsel was ineffective in various specified
ways; (3) appellate counsel was ineffective for failing to assign as error or argue that Abram was
“denied his right to a fair trial,” failing to assign that “trial counsel was ineffective,” and failing to
assign error “regarding jury instructions”; and (4) Abram’s postconviction assertions of actual
innocence amounted to a violation of his due process rights.
IV. STANDARD OF REVIEW
In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier
of fact, resolves conflicts in the evidence and questions of fact. [CITATION]. An appellate court upholds the trial court’s findings unless they are clearly
erroneous. Id.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which an appellate court reviews independently of the lower court’s ruling. [CITATION].
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law
and fact. [CITATION]. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error. Id. With regard to
the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), an appellate court reviews such legal determinations independently of the lower court’s
decision. [CITATION].
[SEGMENT 22]
====== End of Document ====== V. ANALYSIS
. DENIAL OF RIGHT TO FAIR TRIAL
In his first assignment of error, Abram asserts that the district court erred when it failed to
find he was denied the right to a fair trial based on certain specified errors by the trial court,
Abram’s brother perjuring himself, and prosecutorial misconduct with respect to knowingly
allowing the brother to give perjured or false testimony. The issues raised in Abram’s first
assignment of error correspond directly to the issues raised in the first claim set out in Abram’s
postconviction motion. The only issue included in Abram’s first claim, but not in his first
assignment of error, is his assertion of trial court error in failing to sustain his trial counsel’s
motions for a directed verdict.
In the order ruling on Abram’s motion for postconviction relief, the district court found
that every one of the issues raised in Abram’s first claim were or could have been litigated on
direct appeal. The court further found that Abram failed to adduce any evidence or establish that
he was entitled to relief on any of those claims. However, in the section of its order addressing
issues raised in Abram’s postconviction brief, the court separately addressed the issue of perjured
testimony by Abram’s brother and whether Abram had carried his burden of proving that the State
knowingly used perjured testimony from the brother to secure Abram’s conviction.
(a) Issues of Trial Court Error Procedurally Barred
We agree with the district court’s determination that the issues of trial court error raised in
Abram’s first postconviction claim are procedurally barred. Postconviction relief is a very narrow
category of relief, available only to remedy prejudicial constitutional violations that render the
judgment void or voidable. [CITATION]. The need for
finality in the criminal process requires that a defendant bring all claims for relief at the first
opportunity. Id. A motion for postconviction relief cannot be used to secure review of issues that
were known to the defendant and which were or could have been litigated on direct appeal. Id. The
issues of trial court error raised in Abram’s first postconviction claim and again in his first
assignment of error are all issues that could have been brought on direct appeal. The district court
did not err in denying this portion of Abram’s first claim.
(b) Perjured Testimony and Prosecutorial Misconduct
At trial, the brother identified Abram as the shooter; in his testimony during the evidentiary
hearing, he indicated that he “wasn’t exactly sure who the shooter was.” The district court observed
that Abram’s postconviction motion relies upon the argument that there was perjured testimony
adduced from his brother at trial and that the State was aware of this perjured testimony. The court
framed the issue as not one of whether the State’s main trial witness recanted his trial testimony
during the postconviction evidentiary hearing, but rather, whether Abram carried his burden of
proving that the State knowingly used perjured testimony from the brother.
Prosecutors are charged with the duty to conduct criminal trials in such a manner that the
accused may have a fair and impartial trial, and prosecutors are not to inflame the prejudices or
excite the passions of the jury against the accused. [CITATION]. Prosecutorial
misconduct encompasses conduct that violates legal or ethical standards for various contexts
because the conduct will or may undermine a defendant’s right to a fair trial. Id. A prosecutor’s
misconduct that prejudices a defendant’s right to a fair trial violates due process. Id.
Where the testimony is in any way relevant to a case, the knowing use of perjured testimony
by the prosecution deprives a criminal defendant of his or her right to a fair trial. [CITATION]
In a postconviction proceeding, the burden is on the defendant to establish that the prosecution
knowingly used false evidence in securing the conviction. [CITATION] (superseded by statute on other
grounds as stated in [CITATION]).
The district court found that the brother’s testimony during the evidentiary hearing was not
credible. The court stated:
It was apparent [the brother] only answered questions convenient to him and lacked details
about all facts. The timing of his accusations toward the State and his attorney for feeding
him testimony [at trial] should be questioned in that they arose after the statute of
limitations had run and the State could no longer pursue additional charges that had been
dismissed against [the brother] as part of a plea agreement. [The brother’s] testimony is
self-serving as [the brother] admitted several family members had been upset with him for
testifying during the initial trial.
The district court went on to determine that, even assuming the brother’s trial testimony
was false, Abram had presented no evidence that the prosecution knew or should have known his
testimony was false or perjured at the time of trial. In reaching this conclusion, the court noted the
prosecutor’s affidavit attesting to her belief that the information provided by the brother before
trial and his testimony during trial was “truthful and honest” based on his demeanor and the fact
that his testimony was supported by other eyewitnesses. She also stated in her affidavit that while
she may have asked for more detail on specific topics during their meetings, the brother was never
asked or told to testify to anything that was not truthful. The court also noted the deposition
testimony of the brother’s attorney that after the brother entered a plea to charges against him and
prior to Abram’s trial, the brother never recanted or told his attorney he was not being truthful and
that the brother was never told by the attorney or by the State to testify about certain facts during
Abram’s trial. And, the court noted the consistency between the brother’s trial testimony and the
testimony of the victim. Again, the court stated that the brother’s postconviction testimony was
lacking in detail and not credible, and it found no credible evidence that the State knowingly used
perjured testimony to secure Abram’s conviction.
The district court’s assessment of whether Abram met his burden of proving the State
knowingly used perjured testimony to secure his conviction is consistent with our own review of
the record from the evidentiary hearing. Its findings of fact on this issue are not clearly erroneous.
The court did not err in denying the portion of Abram’s first postconviction claim relating to the
allegedly perjured testimony of his brother and the issue of prosecutorial misconduct.
. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
In his second assignment of error, Abram asserts that the district court erred when it failed
to find that trial counsel was ineffective in various specified ways. In this assignment of error,
Abram sets forth allegations of ineffective assistance of trial counsel that correspond to 12 of the
14 issues of trial counsel ineffectiveness raised in the second claim of his postconviction motion.
Although Abram apparently did not directly address his second claim in his postconviction brief,
the district court addressed each of the issues of trial counsel ineffectiveness raised in Abram’s
second claim. However, we decline to do so. When a defendant’s trial counsel is different from
his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial
counsel’s ineffective performance which is known to the defendant or is apparent from the record;
otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding. [CITATION]. See, also, [CITATION] (where first attorney withdrew and second attorney represented defendant
during hearing on motion to withdraw plea, at sentencing, and on direct appeal, defendant was
required to allege claims of ineffective assistance of first attorney on direct appeal). Abram was
represented by different counsel on direct appeal. Abram did not properly raise any issues of
ineffective assistance of trial counsel on direct appeal. Each of the issues of trial counsel
ineffectiveness identified in Abram’s second assignment of error was known to Abram at the time
of his trial and could have been raised on direct appeal. Abram’s claims of ineffective assistance
of trial counsel are procedurally barred.
. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Abram raised issues of ineffective assistance of appellate counsel in the third claim of his
postconviction motion. It was his first opportunity to do so. Claims of ineffective assistance of
appellate counsel may be raised for the first time on postconviction review. [CITATION].
When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin
by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced
the defendant. [CITATION]. Counsel’s failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that
inclusion of the issue would have changed the result of the appeal. Id.
The district court denied Abram’s third claim, based on its analysis of his claims of
ineffective assistance of trial counsel and denial of the right to a fair trial, which showed that those
claims would not have had merit on direct appeal. The court also noted the deposition testimony
of Abram’s appellate counsel with respect to counsel’s thoughts on the strength of Abram’s appeal.
Appellate counsel testified that his “initial thought” after reviewing the trial evidence was that he
had “really not much to argue to an appellate court.”
Abram asserts that the district court erred when it failed to find that appellate counsel was
ineffective for “failing to assign as error or argue that Abram was denied his right to a fair trial,”
“failing to assign as error or argue that trial counsel was ineffective,” and “failing to assign error
regarding jury instructions.”
To be considered by an appellate court, an alleged error must be both specifically assigned
and specifically argued. [CITATION]. The third
assignment of error is vaguely stated and does not specifically incorporate the previously alleged
deficiencies by trial counsel. On that basis, we could disregard the assigned error. Nevertheless,
[SEGMENT 23]
even when considering Abram’s supporting arguments, we conclude the third assigned error must
fail due to lack of specificity.
Abram’s argument in support of his third assignment of error adds little in the way of
specificity. The totality of his argument with respect to ineffective assistance of appellate counsel
is as follows:
The district court erred and abused discretion when it failed to find ineffective
assistance of appellate counsel. Appellate counsel was ineffective for failing to assign as
error or argue that [Abram] was denied his right to a fair trial, the jury instruction issues,
and that trial counsel was ineffective as set forth above in the sections of this brief above.
Appellate counsel failed to assign as error that the district court presented improper
jury instructions, which failed to accurately set forth the law, did not conform to the NJI2d
Crim. Model Jury Instructions and prejudiced [Abram]. Appellate counsel failed to
properly assign errors in his appeal brief that were deemed waived by the Nebraska Court
of Appeals, prejudicing [Abram].
This argument does little more than restate the allegations of his assignment of error. An argument
that does little more than restate an assignment of error does not support the assignment, and an
appellate court will not address it. [CITATION]
Even if we turn to the argument sections in support of Abram’s first and second
assignments of error (concerning the denial of a fair trial and ineffective assistance of trial counsel),
we note that Abram does not specifically argue each of the issues specifically raised in his first
and second assignments of error. And, many of the arguments presented in support of his first two
assignments of error consist only of conclusory statements. For purposes of this third assignment
of error, those conclusory statements do not show a reasonable probability that had his appellate
counsel assigned those issues as error, the result of the direct appeal would have been different.
Conclusory assertions unsupported by coherent analytical argument fail to satisfy the requirement
of arguing an assigned error to obtain consideration by an appellate court. [CITATION]
And, Abram does not argue, specifically or otherwise, each of the issues specifically raised in his
first and second assignments of error.
Because of the generalized and vague nature of Abram’s third assignment of error, his
failure to include an argument in support of that error that does little more than restate the assigned
error, and the conclusory nature of much of the argument in support of Abram’s first and second
assignments of error, we decline to address Abram’s third assignment of error further.
. ACTUAL INNOCENCE
Abram assigns that the district court erred when it failed to find that his postconviction
assertions of actual innocence amounted to a violation of his due process rights. This assignment
of error is based on the cousin’s assertions made during the evidentiary hearing that the cousin was
actually the shooter. The district court addressed this issue in its order denying postconviction
relief, but it noted that Abram’s motion did not mention any claim that the cousin was the shooter
or that Abram was actually innocent. The only mention of the cousin in Abram’s postconviction
motion was his assertion that his trial counsel was ineffective for failing to depose the cousin. The
court stated, “If this claim had any legs, it would have been raised in trial, [Abram’s] appeal, and
[Abram’s] initial [postconviction motions].” The court did, however, go on to address the claim of
actual innocence that developed during the course of the evidentiary hearing.
In addressing the claim, the district court first noted “[the cousin’s] self-serving
[postconviction] testimony that is protected by double jeopardy as [the cousin] will be shortly
released from prison from his sentence related to this case.” The court also noted the “ever
changing” testimony from these family members about the shooter’s identity. Specifically, the
court noted that during trial, Abram and his brother each identified the other as being the shooter;
in his postconviction testimony, the brother testified that he was not certain as to the shooter’s
identity, although he knew three men were there; the cousin testified in the postconviction
proceedings that he was the shooter; and Abram’s postconviction testimony states that his trial
testimony was truthful. The court also noted the strength of the victim’s trial testimony identifying
Abram as the shooter. In that regard, the court noted that the victim knew Abram well, she
recognized his appearance and voice, she spoke his nickname during the incident, and he
responded by telling her not to say his name and shooting her. The court concluded that the new
testimony of the brother and the cousin was not credible and did not overcome the trial testimony
of the victim with respect to Abram being the shooter. Accordingly, the court denied Abram’s
claim of actual innocence.
We are not convinced that Abram raised a claim of actual innocence in his postconviction
motion. In an appeal from the denial of postconviction relief, an appellate court will not consider
for the first time on appeal claims that were not raised in the verified motion. [CITATION]
However, because this issue was addressed by the district court and is addressed by both parties in their briefs on appeal, we consider it briefly.
A claim of actual innocence may be a sufficient allegation of a constitutional violation
under the Nebraska Postconviction Act. [CITATION] The
essence of a claim of actual innocence is that the State’s continued incarceration of such a
petitioner without an opportunity to present newly discovered evidence is a denial of procedural
or substantive due process. Id. The threshold to entitle a prisoner to an evidentiary hearing on a
postconviction claim of actual innocence is extraordinarily high. Id. Such a petitioner must make
a strong demonstration of actual innocence because after a fair trial and conviction, the
presumption of innocence vanishes. Id.
The district court found that the postconviction testimony of the cousin and the brother was
not credible and that the evidence presented in the evidentiary hearing that someone other than
Abram was the shooter did not overcome the strength of the victim’s trial testimony identifying
Abram as the shooter. The court’s findings are consistent with our own review of the evidence and
are not clearly erroneous. The court did not err in denying Abram’s claim of actual innocence.
VI. CONCLUSION
We find no clear error in the factual findings of the district court following the evidentiary
hearing. The court did not err in denying Abram’s motion for postconviction relief.
AFFIRMED.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. COLE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
CEDRICK D. COLE, APPELLANT.
Filed July 30, 2024. No. A-23-868.
Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
Cedrick D. Cole, pro se.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
MOORE, RIEDMANN, and BISHOP, Judges.
BISHOP, Judge.
I. INTRODUCTION
Cedrick D. Cole appeals from the order of the Lancaster County District Court denying his
motion for postconviction relief without holding an evidentiary hearing. We affirm.
II. BACKGROUND
. CONVICTION AND SENTENCE
In 2021, Cole was convicted by a jury of first degree arson. See [CITATION]. The
district court sentenced him to 25 to 40 years’ imprisonment. Id. As set forth in this court’s
previous opinion, the evidence adduced at Cole’s jury trial is as follows.
On Saturday, October 10, 2020, Cole was with his then-girlfriend Jordan Ragland
at her apartment in Lincoln, Nebraska, and they argued about Cole’s alleged infidelity.
Following their argument, Ragland asked her friend, Ashley Rice, to pick her up from the
apartment and help her move her belongings to her mother’s house. Rice arrived to pick up
Ragland in the early afternoon. Following Ragland’s departure, Cole made numerous calls
to Ragland, most of which she ignored. Approximately 10 minutes after she left the
apartment, Ragland received a Snapchat video from Cole showing her couch on fire. In a
video recording of Ragland opening and viewing the Snapchat video, Ragland can be heard
saying “Oh my god.” Rice then asked Ragland, “He actually set it on fire?” Ragland
responded “[y]es.” After viewing the Snapchat video, Rice and Ragland began heading
back to the apartment. Cole testified that he had called Ragland numerous times to alert
her that her couch had caught fire, but to no avail. He explained that this was the reason he
sent Ragland a Snapchat video of the burning couch.
Cole claimed he attempted to subdue the fire by dousing the flames with flour and
water. Ragland’s neighbor, Shelby Marshall, assisted by running jugs of water over from
her apartment to throw at the fire. Despite these efforts, the flames became uncontrollable
and spread beyond the couch to the rest of the apartment unit. According to Marshall, she
was “more active in trying to put the fire out” than Cole. She further stated that Cole seemed
“lethargic.” According to Cole, he had suffered a previous injury to his leg, which limited
his mobility. Cole called 911 to request emergency assistance. However, Marshall stated
that Cole did not call 911 until she instructed him to do so. Lincoln Fire and Rescue arrived
shortly thereafter and successfully suppressed the fire.
Cole left the scene of the fire prior to the arrival of emergency personnel because
he was aware of outstanding warrants for his arrest. After leaving Ragland’s apartment,
Cole asked Rice and Ragland to pick him up. Rice dropped off Ragland and Cole at a
friend’s house a few blocks away from the apartment. Cole remained at the friend’s house
while Ragland walked to the scene of the fire and spoke with law enforcement.
....
Surveillance footage from a neighboring building on October 10, 2020, showed
Cole pick up an item off the ground near a charcoal grill outside of Ragland’s apartment
unit. Rice testified that Ragland and Cole had previously stored lighter fluid next to the
grill and that the item Cole picked up from near the grill “would have to [have been] lighter
fluid.” Ragland and Cole testified that they stored the lighter fluid in the garage. Cole
testified that surveillance footage showed him picking up a water bottle which only
contained water. Fire Marshal Thomas Schmidt, who was qualified as an expert fire
inspector at trial, stated that he did not find any remnants of a lighter fluid bottle in the
apartment or near the grill.
Ragland testified that she frequently filled a torch with butane while sitting on the
couch in her apartment, sometimes spraying excess butane onto the couch. She further
stated that she habitually lit incense, which she described as “almost like ... a punk for
fireworks,” and she placed them between couch cushions, among various other locations
throughout her apartment. She surmised that a previous fire that had started on the same
couch was ignited by her incense; the previous fire took place in September 2020. She
noted that at that time firefighters had advised her to dispose of the burned couch cushions
because they were “more flammable” due to the release of certain oils in the microfibers
of the couch. She stated that she was “sure” she placed incense in the couch on the day of
the October 10th fire.
Id. at *1–2.
Additionally, “Fire Marshal Schmidt testified that he employed a systematic fire
investigation approach to determine that the fire originated on the couch in the living room and
that the fire “had to [have been] ignited by human hands.” Id. at *3 (brackets in original).
. DIRECT APPEAL
Cole, with new counsel, filed a direct appeal claiming that the evidence was insufficient to
sustain his conviction, his trial counsel was ineffective for failing to challenge the lack of evidence
regarding a material element of the crime, and his sentence was excessive. This court affirmed
Cole’s conviction and sentence on direct appeal and found that his ineffective assistance of trial
counsel claim failed. See [CITATION].
. POSTCONVICTION
On April 4, 2023, Cole, pro se, filed a verified motion for postconviction relief. In his
motion, Cole alleged defects in the information, errors in the jury instructions, and the ineffective
assistance of both trial and appellate counsel. Specifically, he alleged that his trial counsel was
ineffective because counsel failed to: (1) object to specified jury instructions; (2) failed to
“interview and investigate” five named witnesses (Ashley Rice, Shelby Marshall, Melissa Leuty,
Tyronn Blueford, and Frankie Mason) and the named victim (Jordan Ragland) who all “would
have testified that they did not see . . . Cole start any fire”; (3) request “independent testing of a
water bottle located by Lincoln Fire and Rescue Investigator Schmi[d]t, containing an unknown
liquid, which would have concluded that the unknown liquid was in fact water”; and (4) file a
motion to quash the information which was not sworn to under oath by the deputy Lancaster
County attorney. Cole also alleged that his appellate counsel was ineffective because appellate
counsel failed to assign as error on direct appeal: (1) the foregoing claims of ineffective assistance
of trial counsel; and (2) the “plain error” by the district court regarding its failure to improperly
instruct the jury in specified ways.
A brief hearing on Cole’s motion was held on August 23, 2023. Both the State and Cole
appeared by video conference. Cole had “no new evidence,” but made a personal address to the
court stating that he had “learned to be accountable” and “made a lot of changes to [his] life and
accepted [his] flaws and promise[d] not to go down this road again.” The State submitted on its
brief.
In its order entered on October 2, 2023, the district court denied Cole’s motion for
postconviction relief without an evidentiary hearing. The court found that the information filed by
the State met the Constitutional requirements of an information or indictment because it was
sufficient to put Cole on notice of the charge against him, prepare his defense, and plead the
judgment as a bar against future conviction. Regardless, Cole waived any defect in the information
by proceeding to trial without contesting it. The court found that Cole’s claims against his trial
counsel were procedurally barred because they could have been raised on direct appeal. The court
found that Cole’s appellate counsel was not ineffective for failing to assign as error trial counsel’s
failure to object to jury instructions, interview witnesses, independently test evidence, or file a
motion to quash the information.
Regarding Cole’s claims against appellate counsel, the district court specifically found the
following. The jury was properly instructed. As to trial counsel failing to interview and investigate
potential witnesses, the court noted that Cole started a fire inside of an apartment with no one else
there; no testimony was elicited during trial that anyone saw him start the fire. Further, three of
the named witnesses (Ragland, Rice, and Marshall) testified at trial and were cross-examined, and
none testified that they saw Cole start the fire. Cole did not provide any information on the other
three named witnesses (Leuty, Blueford, and Mason)--whether they would have had an
opportunity to observe the incident, or how their testimony would have changed the outcome of
the case when Cole had been in an argument with the owner of the apartment, was on video alone
at the apartment when the fire broke out, sent the victim a picture of the fire, and made minimal
efforts to put out the fire or contact emergency services. The court pointed out, “Because [Cole]
was alone in a small apartment when he started a fire, it is not surprising that a multitude of
witnesses could testify that they did not see [Cole] start the fire.”
Regarding Cole’s claim that an independent test of the water bottle would have concluded
that the substance was water, the district court found this claim to be conclusory. The court stated
that Cole did not articulate how this would have changed the outcome of the case, and the claim
“also clearly contravenes the record” because “Fire Investigator Schmidt also testified that the
contents [of the water bottle] were later analyzed at a laboratory and found to be a medium
petroleum distillate ignitable liquid.” The court added that “even if the substance had been
independently tested and found to have been water[,] it would not have changed the outcome of
the case” since Cole was “still the only person on video in the apartment at the time the fire was
started” and he sent a picture of the fire to Ragland and made minimal efforts to put the fire out or
call emergency services.
Finally, as to the alleged ineffectiveness of trial counsel for failing to file a motion to quash
the information, the district court found that the information contained a verification and oath, and
therefore the record affirmatively refuted Cole’s claims to the contrary. The court stated,
The record clearly shows that [Cole’s] trial counsel was not ineffective for failing
to object to jury instructions, interview witnesses, get independent testing of evidence, or
object to the Information in this case. Even if [Cole’s] trial counsel was ineffective, [he]
has not shown that he was so prejudiced that there would have been a different result in
this case. [Cole’s] Appellate counsel was, therefore, not ineffective for failing to raise these
issues on appeal.
[SEGMENT 2]
Cole appeals.
III. ASSIGNMENT OF ERROR
Cole assigns that the district court erred in denying his motion for postconviction relief
without an evidentiary hearing.
IV. STANDARD OF REVIEW
When a district court denies postconviction relief without conducting an evidentiary
hearing, an appellate court determines de novo whether the petitioner has alleged facts that would
support the claim and, if so, whether the files and records affirmatively show that he or she is
entitled to no relief. [CITATION]
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law. Id. When reviewing a question of law, an appellate court reaches a conclusion independent
of the lower court’s ruling. Id.
V. ANALYSIS
. GENERAL PRINCIPLES OF LAW
Postconviction relief is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or her constitutional rights
such that the judgment was void or voidable. Id. Thus, in a motion for postconviction relief, the
defendant must allege facts which, if proved, constitute a denial or violation of his or her rights
under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or
voidable. [CITATION] The district court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion contains factual allegations which, if
proved, constitute an infringement of the defendant’s rights under the state or federal
Constitution. Id.
However, the allegations in a motion for postconviction relief must be sufficiently specific
for the district court to make a preliminary determination as to whether an evidentiary hearing is
justified. Id. An evidentiary hearing is not required on a motion for postconviction relief when (1)
the motion does not contain factual allegations which, if proved, constitute an infringement of the
movant’s constitutional rights rendering the judgment void or voidable; (2) the motion alleges only
conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show
that the defendant is entitled to no relief. Id.
To prevail on a claim of ineffective assistance of counsel under [CITATION], 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. [CITATION] To show that counsel’s performance was deficient,
the defendant must show counsel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. Id. To show prejudice under the prejudice component of
the [CITATION] test, the defendant must demonstrate a reasonable probability that but for his or her
counsel’s deficient performance, the result of the proceeding would have been different. [CITATION] A reasonable probability does not require that it be more likely than not that the
deficient performance altered the outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the outcome. Id. The likelihood of a different
result must be substantial, not just conceivable. Id. The two prongs of this test may be addressed
in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption
that counsel’s actions were reasonable. Id.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Cole assigns that the district court erred by denying his claims of ineffective assistance of
counsel without conducting an evidentiary hearing. The argument section of Cole’s brief focuses
on the district court’s determination that his claims against trial counsel are procedurally barred,
and that appellate counsel was not ineffective for failing to assign as error trial counsel’s failure to
interview and investigate witnesses, or to independently test evidence.
While Cole inserted one sentence referring to trial counsel not objecting to jury instructions
and not filing a motion to quash the information, he does not provide any further discussion or
argument as to those claims and we therefore will not address them. See [CITATION] (alleged error must be both specifically assigned and specifically
argued; conclusory assertions unsupported by coherent analytical argument fail to satisfy
requirement of arguing assigned error to obtain consideration by appellate court).
(a) Trial Counsel
On direct appeal, Cole, represented by new counsel, claimed that his trial counsel was
ineffective for failing to challenge the lack of evidence regarding a material element of the crime.
We concluded that claim failed. See [CITATION] (selected for posting to court website).
In his pro se motion for postconviction relief, Cole claimed for the first time that his trial
counsel was ineffective because counsel failed to: (1) object to specified jury instructions; (2)
“interview and investigate” five named witnesses (Rice, Marshall, Leuty, Blueford, and Mason)
and the named victim (Ragland) who all “would have testified that they did not see . . . Cole start
any fire”; (3) request “independent testing of a water bottle located by Lincoln Fire and Rescue
Investigator Schmi[d]t, containing an unknown liquid, which would have concluded that the
unknown liquid was in fact water”; and (4) file a motion to quash the information which was not
sworn to under oath by the deputy Lancaster County attorney.
We agree with the district court that Cole’s postconviction relief claims against trial
counsel are procedurally barred because they were not brought on direct appeal. When a
defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must
raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. [CITATION].
(b) Appellate Counsel
In contrast, this postconviction proceeding was Cole’s first opportunity to assert that his
appellate counsel was ineffective. A claim of ineffective assistance of appellate counsel which
could not have been raised on direct appeal may be raised on postconviction review. [CITATION]. However, we find that the district court did not err in
denying, without an evidentiary hearing, Cole’s claim for postconviction relief based on the
alleged ineffective assistance of appellate counsel.
Again, we note that the argument section of Cole’s brief focuses on the district court’s
decision regarding appellate counsel failing to assign as error trial counsel’s failure to interview
and investigate witnesses, or to independently test evidence. We limit our focus accordingly.
(i) Witnesses
Cole claims that his appellate counsel was ineffective for failing to assign as error on direct
appeal trial counsel’s ineffective assistance in failing to “interview and investigate” five named
witnesses (Rice, Marshall, Leuty, Blueford, and Mason) and the named victim (Ragland) who all
“would have testified that they did not see . . . Cole start any fire.”
When a claim of ineffective assistance of appellate counsel is based on the failure to raise
a claim on appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance
of counsel), an appellate court will look at whether trial counsel was ineffective under the
Strickland test. [CITATION]. If trial counsel was not
ineffective, then the defendant was not prejudiced by appellate counsel’s failure to raise the
issue. [CITATION]. Much like claims of ineffective assistance of trial counsel, the defendant must show that
but for appellate counsel’s failure to raise the claim, there is a reasonable probability that the
outcome would have been different. [CITATION].
As this court stated on direct appeal,
Fire Marshal Schmidt testified that he employed a systematic fire investigation
approach to determine that the fire originated on the couch in the living room and that the
fire “had to [have been] ignited by human hands.” It was also demonstrated that Cole was
the only person in Ragland’s apartment at the time the fire started. Moreover, Rice,
Ragland, and Cole testified that the morning of the fire, Ragland and Cole had been arguing
about Cole’s alleged infidelity. Following this disagreement, Cole had been “blowing up”
Ragland’s phone but did not receive many responses from her. Then, approximately 10
minutes after she left the apartment, Ragland received a Snapchat video from Cole showing
her couch on fire.
[CITATION].
The evidence presented at trial showed that Cole was the only person in the apartment at
the time the fire started, and that the fire was started by human hands. Having six people who, as
Cole claimed, “would have testified that they did not see . . . [Cole] start any fire” would not have
undermined confidence in the outcome of this case, thus Cole cannot show prejudice by any
alleged deficiency by trial counsel. Because Cole could not show that trial counsel was ineffective
for failing to interview and investigate the named persons, Cole was not prejudiced by appellate
counsel’s failure to raise the claim. See [CITATION].
(ii) Water Bottle
Cole also claims that his appellate counsel was ineffective for failing to assign as error on
direct appeal trial counsel’s ineffective assistance in failing to request “independent testing of a
water bottle located by Lincoln Fire and Rescue Investigator Schmi[d]t, containing an unknown
liquid, which would have concluded that the unknown liquid was in fact water.”
Fire Marshall Schmidt testified at trial that the contents of the water bottle were analyzed
at a laboratory and found to be a medium petroleum distillate ignitable liquid. Thus, Cole’s claim
that the water bottle contained only water was contradicted by the record. Regardless, whether or
not the water bottle contained only water or some other liquid would not have undermined
confidence in the outcome of this case. As stated above, the evidence presented at trial was that
[SEGMENT 3]
Cole was the only person in the apartment at the time the fire started, and that the fire was started
by human hands. Thus, Cole cannot show prejudice by any alleged deficiency by trial counsel.
Because Cole could not show that trial counsel was ineffective for failing to request independent
testing of the water bottle, Cole was not prejudiced by appellate counsel’s failure to raise the claim.
See [CITATION].
VI. CONCLUSION
For the reasons stated above, we find that Cole’s claims that trial counsel was ineffective
are procedurally barred, and his claims that appellate counsel was ineffective fail. Accordingly,
we affirm the decision of the district court denying Cole’s motion for postconviction relief without
an evidentiary hearing.
AFFIRMED.
Nebraska Supreme Court Online Library
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07/19/2024 09:09 AM CDT
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Nebraska Reports
STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
State of Nebraska, appellee, v. Rosario
Betancourt-Garcia, appellant.
___ N.W.3d ___
Filed July 19, 2024. No. S-23-738.
. Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
dentiary hearing on a motion for postconviction relief, the trial judge,
as the trier of fact, resolves conflicts in the evidence and questions of
fact. An appellate court upholds the trial court’s findings unless they are
clearly erroneous.
. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law
and fact. When reviewing a claim of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower court for
clear error. With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test articulated in
[CITATION], an appellate court reviews such legal determinations inde-
pendently of the lower court’s decision.
. Criminal Law: Evidence: Proof. To establish an alibi defense, a
defendant must show (1) he or she was at a place other than where the
crime was committed and (2) he or she was at such other place for such
a length of time that it was impossible to have been at the place where
and when the crime was committed.
. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise
a claim on direct appeal of ineffective assistance of trial counsel (a
layered claim of ineffective assistance of counsel), an appellate court
will first look at whether trial counsel was ineffective under the test in
[CITATION]. If trial counsel was not ineffective, then the defendant was
not prejudiced by appellate counsel’s failure to raise the issue. - 175 -
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Nebraska Reports
STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
5. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a
claim of ineffective assistance of counsel under [CITATION], the defendant
must show that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s defense.
6. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
7. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice in a claim of ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confi-
dence in the outcome.
8. Trial: Effectiveness of Counsel: Appeal and Error. A reasonable stra-
tegic decision to present particular evidence, or not to present particular
evidence, will not, without more, sustain a finding of ineffective assist
ance of counsel. Strategic decisions made by trial counsel will not be
second-guessed so long as those decisions are reasonable.
9. Rules of Evidence: Impeachment: Prior Statements. Prior inconsist
ent statements are admissible as impeachment evidence, but they are not
admissible as substantive evidence unless they are otherwise admissible
under the Nebraska Evidence Rules.
10. Actions: Appeal and Error. Unlike the doctrines of claim preclusion
and issue preclusion, which involve successive lawsuits, the law-of-the-
case doctrine involves successive stages of one continuing lawsuit.
11. ____: ____. When it applies, the law-of-the-case doctrine operates to
preclude reconsideration of substantially similar, if not identical, issues
at successive stages of the same suit or prosecution.
12. ____: ____. The law-of-the-case doctrine promotes judicial efficiency
and protects parties’ settled expectations by preventing parties from
relitigating settled issues within a single action.
Appeal from the District Court for Madison County, Mark
A. Johnson, Judge. Affirmed.
Jack W. Lafleur, of Moyer, Moyer & Lafleur, for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee. - 176 -
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Nebraska Reports
STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Funke, J.
INTRODUCTION
This appeal arises from a petition for postconviction relief
filed by Rosario Betancourt-Garcia (Betancourt). After an
evidentiary hearing, the district court for Madison County,
Nebraska, granted Betancourt relief in the form of corrected
sentences for two of his convictions. But the district court
denied Betancourt’s claim that his appellate counsel was
ineffective for failing to raise a claim on direct appeal that
his trial counsel were ineffective in their handling of his
alibi defense and his “misidentification defense.” Betancourt
appeals that ruling and also argues that he was entitled to an
evidentiary hearing on other claims of ineffective assistance
of counsel. Because the district court did not err in finding
that trial counsel made a reasonable strategic decision in their
handling of the purported defenses, and because Betancourt’s
other claims either resulted in relief or are precluded under
the law-of-the-case doctrine, we affirm.
BACKGROUND
This is the fourth time that we have opined on matters
related to Betancourt’s convictions. [CITATION] The following summary of
the proceedings to date is based on our prior opinions.
Convictions and Direct Appeal
Betancourt was convicted of kidnapping, use of a firearm
to commit a felony, and conspiracy to commit kidnapping
after his nephew was found bound and gagged in Madison,
[CITATION] - 177 -
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Nebraska Reports
STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
Nebraska, on November 15, 2003. Betancourt was subse-
quently arrested in Texas, but he did not stand trial until over
a decade later. At trial, Betancourt testified that he was work-
ing 6 days a week or more in Houston, Texas, at the time
of the offenses. However, Betancourt’s nephew testified that
Betancourt was one of two men who kidnapped and threat-
ened to kill him and left him bound and gagged in a shed near
Betancourt’s former house. The other man involved in the
kidnapping also testified to Betancourt’s involvement.
Betancourt was sentenced to consecutive terms of life
imprisonment for kidnapping and 10 to 30 years’ imprison-
ment, including a mandatory minimum of 5 years’ imprison-
ment, for use of a weapon to commit a felony. Further, the
district court treated the conspiracy conviction as a Class II
felony and sentenced Betancourt to 30 to 50 years’ imprison-
ment, to be served concurrently with the other sentences.
Betancourt appealed his convictions and sentences, argu-
ing that the district court erred in several regards and that
he received ineffective assistance of counsel. We rejected
those arguments. We also declined to consider Betancourt’s
argument that his trial counsel were ineffective in failing to
investigate, develop, and present exculpatory evidence to sup-
port his alibi defense, because that claim was not assigned in
his brief on appeal. But we found plain error in Betancourt’s
sentence for the conspiracy conviction, which was inconsist
ent with the statutory framework. As such, we vacated that
sentence and remanded the matter to the district court with
directions to resentence Betancourt to “life imprisonment”
for conspiracy.
On remand, Betancourt was resentenced, without objection,
to “life imprisonment without parole.”
2
See, e.g., [CITATION] (to be
considered by appellate court, error must be both specifically assigned and
specifically argued in brief of party asserting error). - 178 -
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[SEGMENT 4]
Nebraska Reports
[CITATION]
Cite as [CITATION]
Motion for Postconviction Relief and Appeal
of Denial of Evidentiary Hearing
Betancourt then filed a verified petition for postconviction
relief. In that petition, Betancourt alleged that his appellate
counsel on direct appeal was ineffective for failing to raise
several claims of ineffective assistance of trial counsel (lay-
ered claims of ineffective assistance of counsel). The district
court granted an evidentiary hearing on Betancourt’s layered
claims of ineffective assistance of counsel, based on the fail-
ure to assert an alibi defense, pursuit of a “misidentification
defense,” and failure to object to Betancourt’s sentence for
use of a firearm to commit a felony, which should not have
included a mandatory minimum. But the district court denied
Betancourt’s remaining claims without an evidentiary hear-
ing on the grounds that they were insufficiently alleged, were
affirmatively refuted by the evidence in the record, or were
not examples of ineffective assistance of counsel.
Betancourt appealed the district court’s order denying him
an evidentiary hearing on his remaining claims. On appeal,
we affirmed that order except as to Betancourt’s claim that
appellate counsel, while serving as trial counsel upon remand
for resentencing on the conspiracy conviction, was ineffec-
tive for not objecting to the imposition of a sentence of “life
imprisonment without parole.” Because that sentence was not
a valid sentence, we remanded the cause to the trial court for
a hearing on Betancourt’s sentence for conspiracy.
Evidentiary Hearing
On remand, the district court held an evidentiary hearing
on Betancourt’s layered claims of ineffective assistance of
counsel regarding his (1) alibi defense, (2) “misidentification
defense,” (3) sentence for use of a firearm to commit a felony,
and (4) sentence for conspiracy. Betancourt testified at the
hearing, as did four of the five attorneys (Attorneys 1 through
5) who represented him in these proceedings. That testimony
is summarized below as it relates to the parties’ arguments
on appeal. - 179 -
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Nebraska Reports
[CITATION]
Cite as 317 Neb. 174
Betancourt testified that he moved to Houston 20 days
or more before the offenses and that he was working in
Houston on November 15, 2003. Betancourt also testified that
he advised counsel that his former employer and an employee
of his former landlord (the Texas witnesses) were willing and
able to testify to that effect. Betancourt similarly testified
that he informed counsel that his former neighbor in Madison
“could testify” that Betancourt had not lived there “for sev-
eral months” before the offenses. According to Betancourt,
Attorney 2 spoke with the Texas witnesses and learned that
their testimony would have been “practically” the same as his.
Betancourt acknowledged that he later learned that the Texas
witnesses stated they could not place him in Texas on the date
of the offenses and also resisted testifying. But Betancourt
opined that this was because counsel “threatened” to “put
[one of the witnesses] in jail to ensure [her] testimony in the
trial” and that “[n]o attorney does that.” Otherwise, Betancourt
maintained that the Texas witnesses were “still willing” to tes-
tify on his behalf.
Attorney 2 did not testify at the hearing. However, the other
attorneys all described difficulties in identifying or obtaining
testimony from the Texas witnesses, in particular.
Attorney 1, the public defender who represented Betancourt
before he hired Attorney 2, testified that Betancourt “didn’t
have firm dates or people” in terms of his alibi. Attorney 1
described working with Betancourt to “try[] to get somebody”
and “attempt[ing] to contact people.” But Attorney 1 stated
that he ultimately never “got ahold of anybody” who could
corroborate that Betancourt was elsewhere at the time of
the offenses.
Attorney 3, the public defender who represented Betancourt
after Attorney 2 withdrew, testified that he spoke with the
Texas witnesses and that they could not testify that Betancourt
was in Texas on November 15, 2003. Attorney 3 admitted to
telling the landlord’s employee that she could be “brought to
Nebraska . . . through law enforcement” to testify if necessary. ```plaintext
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Nebraska Reports
[CITATION]
Cite as 317 Neb. 174
But Attorney 3 testified that even before he told her this and
she became uncooperative, she failed to provide any informa-
tion beneficial to Betancourt’s defense. According to Attorney
3, he eventually discussed the matter with Betancourt and
informed him that given the prospective witness’ inability to
provide an alibi and her reluctance to testify, “it wouldn’t be
beneficial to bring her up here forcibly because that would
just make things worse for her testimony.”
Attorney 3 testified similarly that he did not attempt to
depose the landlord’s employee, because even if she had
testified that Betancourt was in Texas before and after the
offenses, that information would not have been helpful to the
case, because the testimony at the trial was going to be that
Betancourt and the codefendant “left Nebraska and traveled
. . . down to Kansas or down to Texas” immediately after
the offenses. As such, Attorney 3 reasoned that the “best
trial defense” was to put Betancourt “somewhere else on the
date of the incident rather than other days in November.” In
particular, Attorney 3 noted the danger of the witness’ being
called and “corroborating the co-defendant.”
Attorney 3’s deputy, Attorney 4, also testified that the Texas
witnesses could not place Betancourt in Texas on November
15, 2003, or for such a length of time that it was impossible
for him to have been in Madison when the offenses were
committed. Further, Attorney 4 testified that the landlord’s
employee hired an attorney “to try to avoid coming up to
testify” and that due to the passage of time, Betancourt’s for-
mer employer no longer had the paperwork pertaining to his
employment. According to Attorney 4, she was concerned that
“forcibly [bringing the Texas witnesses] up . . . might make
it get worse,” and her superior, Attorney 3, discussed the
“dangers of an alibi defense” with Betancourt. But Attorney 4
acknowledged that Betancourt’s claim that he was misidenti-
fied was “essentially the same” as his alibi defense. Attorney
4 testified that it would have been “very difficult” to argue
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[CITATION]
Cite as 317 Neb. 174
that Betancourt was misidentified without alibi witnesses,
given that his nephew and codefendant had identified him.
Attorney 4 also acknowledged that Betancourt’s former
neighbor in Madison was not called to testify at the trial
despite her affidavit stating that as of November 15, 2003,
Betancourt “had not been living at his house for at least three
months.” However, Attorney 4 indicated that she viewed this
information as consistent with the State’s evidence at trial
that Betancourt “had not lived in that house for an extended
period.”
Attorney 5, who represented Betancourt on appeal, testified
that he did not consider trying to “make an appeal issue” out
of the failure to call the Texas witnesses, because he did not
see “any merit” to a claim based on trial counsel’s failure to
“call an unhelpful witness who refused to testify.” Attorney 5
also testified that he reviewed his recommendations regard-
ing “what . . . would be [a] good appeal” with Betancourt
and that Betancourt was “okay with it.” But Betancourt testi-
fied in rebuttal that he “wanted” Attorney 5 to “raise the alibi
defense” on appeal.
Order Following Evidentiary Hearing
The district court subsequently issued an order correcting
Betancourt’s sentences and resentencing him to 10 to 30 years’
imprisonment for use of a firearm to commit a felony and to
life imprisonment for conspiracy to commit kidnapping. But
the district court denied Betancourt’s claims as to his alibi
defense and “misidentification defense,” which it essentially
treated as a single claim involving the Texas witnesses.
The district court reasoned that calling the Texas witnesses
“presented a dilemma to the defense” because the witnesses
could not testify that Betancourt was in Texas on November
15, 2003, and they were unwilling to testify at all. The district
court also noted that even if Betancourt had called Attorney
2 to testify that the witnesses had stated otherwise to her, the
witnesses were not under oath when speaking to Attorney 2, - 182 -
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[SEGMENT 5]
Nebraska Reports
STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
and any impeachment testimony would not have been admis-
sible as substantive evidence to prove alibi or misidentifica-
tion. The district court thus concluded that the decision not
to pursue an alibi defense was a reasonable strategic deci-
sion and did not amount to ineffective assistance of counsel.
Accordingly, the district court found that Betancourt was not
prejudiced by appellate counsel’s failure to raise the issue.
Betancourt timely appealed, and we moved the matter to
our docket. 3
ASSIGNMENTS OF ERROR
Betancourt assigns, restated, that the district court erred in
denying his layered claims of ineffective assistance of counsel
related to his alibi defense and his “misidentification defense.”
Betancourt also assigns that the district court erred in denying
him an evidentiary hearing on an additional 16 layered claims
of ineffective assistance of counsel.
STANDARD OF REVIEW
[1] In an evidentiary hearing on a motion for postconvic-
tion relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact. [CITATION] An appellate
court upholds the trial court’s findings unless they are clearly
erroneous. [CITATION]
[2] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. [CITATION] When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. [CITATION] With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
3
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
4
[CITATION]
5
Id.
6
Id.
7
Id. - 183 -
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STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
articulated in [CITATION], an appellate court
reviews such legal determinations independently of the lower
court’s decision. [CITATION]
ANALYSIS
No Error as to Alibi and
Misidentification Defenses
[3] We begin with Betancourt’s argument that the district
court erred in denying his layered claims of ineffective assist
ance of counsel regarding his alibi defense and his “misiden-
tification defense.” We have recognized that the alibi defense
places a “heavy evidentiary burden” on the defendant. [CITATION] To
establish an alibi defense, a defendant must show (1) he or
she was at a place other than where the crime was committed
and (2) he or she was at such other place for such a length of
time that it was impossible to have been at the place where
and when the crime was committed. [CITATION] Misidentification, in
contrast, is not a defense with specific elements that must be
proved by the defendant. Betancourt raises separate assign-
ments of error regarding both alibi and misidentification.
However, his arguments on appeal and the evidence in the
record before us show that his concerns as to both alibi and
misidentification are similar—namely, trial counsel’s failure
to present evidence from witnesses who, Betancourt claims,
could have placed him elsewhere on November 15, 2003, or
other dates. As such, our analysis below pertains equally to
both defenses.
[4] When a claim of ineffective assistance of appellate
counsel is based on the failure to raise a claim on direct
appeal of ineffective assistance of trial counsel (a layered
[CITATION] - 184 -
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STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
claim of ineffective assistance of counsel), as is the case here,
an appellate court will first look at whether trial counsel was
ineffective under the test in Strickland. 12 If trial counsel was
not ineffective, then the defendant was not prejudiced by
appellate counsel’s failure to raise the issue. 13
[5-7] Generally, to prevail on a claim of ineffective assist
ance of counsel under Strickland, the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. 14 To show that counsel’s performance was defi-
cient, a defendant must show that counsel’s performance did
not equal that of a lawyer with ordinary training and skill
in criminal law. 15 To show prejudice in a claim of ineffec-
tive assistance of counsel, the defendant must demonstrate
a reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent. 16 A reasonable probability is a probability sufficient to
undermine confidence in the outcome. 17 A court may examine
performance and prejudice in any order and need not examine
both prongs if a defendant fails to demonstrate either. 18
Under the foregoing framework, Betancourt’s claim that
his appellate counsel was ineffective ultimately rests on his
argument that his trial counsel were ineffective in failing to
subpoena, depose, or obtain sworn statements from his former
employer, an employee of his former landlord, and his former
neighbor, each of whom he claims “could have” corroborated
he was elsewhere at the time of the offenses. 19 Betancourt
12
See [CITATION].
15
Id.
16
Id.
17
Id.
18
Id.
19
Brief for appellant at 20. - 185 -
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STATE V. BETANCOURT-GARCIA
Cite as 317 Neb. 174
argues that there was “[n]o reasonable strategic reason . . .
to not call these witnesses,” because such corroboration was
necessary to show an alibi or misidentification. 20 Betancourt
argues that absent corroboration, he “ended up with no cogent
defense.” 21 The State counters that trial counsel made a reason-
able strategic decision not to present the witnesses’ evidence,
because “none of those witnesses could actually provide an
alibi for Betancourt” and the Texas witnesses, in particular,
were “uncooperative.” 22 The State also argues that Betancourt
was not prejudiced by trial counsel’s failure to present the
evidence, because Betancourt’s nephew and codefendant other-
wise identified him as the perpetrator.
[8] When the evidence in the record before us is considered
under the standard of review previously noted, we agree with
the State that the district court did not err in finding that trial
counsel made a reasonable strategic decision not to subpoena,
depose, or obtain sworn statements from the witnesses and,
thus, were not ineffective. As we have explained, a reason-
able strategic decision to present particular evidence, or not
to present particular evidence, will not, without more, sustain
a finding of ineffective assistance of counsel. 23 Strategic deci-
sions made by trial counsel will not be second-guessed so long
as those decisions are reasonable. 24
The record here shows that the Texas witnesses, in par-
ticular, ultimately stated that they could not place Betancourt
in Texas at the time of the offenses, and they were unwill-
ing to testify. Attorneys 3 and 4 testified to this effect, and
Betancourt himself acknowledged that counsel had informed
him prior to trial that the Texas witnesses were unable to
place him in Houston on November 15, 2003, and that they
20
[CITATION] - 186 -
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Cite as 317 Neb. 174
resisted testifying. Admittedly, Betancourt also testified that
this was because trial counsel “threatened” the witnesses and
that the witnesses otherwise were “still willing” to testify on
his behalf. However, the district court resolved any conflict
in the evidence here by finding the Texas witnesses could
not corroborate Betancourt’s claim that he was in Houston on
November 15 and they were unwilling to testify. Under the
standard of review previously noted, we find no clear error in
these findings. There was also evidence that trial counsel were
concerned that “forc[ing]” the witnesses to testify might make
things worse. In short, there was competent evidence in the
record supporting the district court’s decision.
Betancourt also points to the fact that the Texas witnesses
“could have” testified that he lived and worked in Texas before
and after the date of the offenses. 25 However, Betancourt
never identified any specific dates when he was in Texas
according to those witnesses. This lack of detail is signifi-
cant, given that the testimony at the trial was going to be that
Betancourt and the codefendant “left Nebraska and traveled
. . . down to Kansas or down to Texas” immediately after the
offenses. In fact, Attorney 3 testified that he was concerned
that the Texas witnesses could have ended up “corroborating
the co-defendant.”
[9] Betancourt’s claim that the Texas witnesses could have
been impeached about their prior inconsistent statements that
he was in Houston on November 15, 2003, is similarly with-
out merit. Betancourt takes issue with the district court’s
suggestion that under [CITATION], he might not have
25
Brief for appellant at 20.
26
[CITATION]. See, also,
[CITATION]. - 187 -
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Cite as 317 Neb. 174
been allowed to impeach the witnesses with those statements.
Betancourt maintains that the district court misconstrued Davis
and that impeachment would have been allowed here. We need
not resolve this dispute, because even if Betancourt is correct
that the Texas witnesses could have been impeached about
their prior statements, such evidence would have served only
to discredit his own witnesses. This is because when allowed
under Davis and related cases, prior inconsistent statements
are admissible as impeachment evidence, but they are not
admissible as substantive evidence unless they are otherwise
admissible under the Nebraska Evidence Rules. 27
The prior inconsistent statements in this case were allegedly
made in conversations with Attorney 2, and not under oath.
As such, they are hearsay. 28 Betancourt does not argue that
the statements are otherwise admissible under the Nebraska
Evidence Rules. 29 Thus, they would not have been admissible
as substantive evidence that he was in Houston on November
15, 2003. Instead, they would have served only to show that
the Texas witnesses—upon whose testimony Betancourt oth-
erwise hoped to rely to show that he was in Texas before and
after the date of the offenses—were not credible. 30
We take a similar view of the failure to present the evi-
dence of Betancourt’s former neighbor. Betancourt relies upon
an affidavit from the neighbor attached to his petition for
postconviction relief, wherein the neighbor states that on the
27
[CITATION]
28
See Clark, supra note 14 (hearsay is statement, other than one made by
declarant while testifying at trial or hearing, offered into evidence to prove
truth of matter asserted).
29
See Neb. Rev. Stat. §§ 27-802 to 27-806 (Reissue 2016).
30
Cf. [CITATION] (counsel not
ineffective for failing to call witnesses to impeach testimony of defendant’s
girlfriend where her prior inconsistent statements could not have been
used as substantive evidence that she did not pick him up after robbery or
that he did not hand her gun, but, rather, would have been limited solely
to discrediting her). - 188 -
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night in question, she observed three to five men “getting out
of cars” at Betancourt’s former residence. The neighbor also
stated that the residence had been vacant for at least 3 months
and that after Betancourt’s family moved away, she never
saw him again. On appeal, Betancourt argues that testimony
by his former neighbor to this effect at the trial would have
supported his claims of alibi and misidentification, apparently
by showing he was not one of the men she saw on November
15, 2003. However, the neighbor also stated that she observed
the events in the dark from across the street, and she gave
no indication that she was able to identify the men as not
being Betancourt.
Betancourt’s remaining argument, regarding the “striking” 31
similarities between his case and [CITATION], 32 is similarly
without merit. The defendant in [CITATION] moved to vacate and
set aside his judgment and conviction on the ground that
his trial counsel was ineffective for failing to interview and
subpoena witnesses known to counsel who would have cor-
roborated the defendant’s version of events. 33 We agreed that
the defendant’s counsel “failed to perform a function which a
reasonably competent attorney would perform,” and, as such,
we remanded the cause for a new trial. 34
Betancourt seemingly construes [CITATION] to mean that the fail-
ure to subpoena the witnesses, in and of itself, was deficient
performance; he argues that insofar as he wanted the witnesses
to testify, counsel should have “honor[ed his] requests.” 35
However, the specific defect that we noted in counsel’s
performance in [CITATION] was the failure to investigate. Because
the counsel in [CITATION] did not interview the witnesses, he was
unaware they had evidence that contradicted the State’s theory
31
Brief for appellant at 20.
32
[CITATION]
33
Id.
34
Id. at 16, 272 N.W.2d at 779.
35
Brief for appellant at 18. - 189 -
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of the case. Here, in contrast, all of Betancourt’s attorneys,
except for Attorney 1, were aware of the identity of his pro-
posed witnesses and the testimony he hoped to elicit from them.
Betancourt did testify at the evidentiary hearing that Attorney
1 was remiss in investigating because he did “[n]othing” with
the information Betancourt gave him about the Texas wit-
nesses. However, Attorney 1 testified that Betancourt “didn’t
have firm dates or people” and that Attorney 1 attempted to
contact people, but ultimately failed.
Because Betancourt’s trial counsel made a reasonable stra-
tegic decision not to subpoena, depose, or obtain sworn state-
ments from his witnesses, Betancourt was not prejudiced by
appellate counsel’s failure to raise the issue on direct appeal.
As such, Betancourt’s argument that the district court erred
in denying his layered claims of ineffective assistance of
counsel regarding his alibi defense and his “misidentification
defense” is without merit.
Remaining Claims Addressed or Precluded
We next turn to Betancourt’s argument that the district court
erred in denying him an evidentiary hearing on an additional
16 layered claims of ineffective assistance of counsel.
The record on appeal shows that one of those claims, regard-
ing trial counsel’s failure to object to Betancourt’s sentence
of “life imprisonment without parole” for conspiracy to com-
mit kidnapping, was actually heard by the district court. The
district court sustained Betancourt’s petition on that claim and
resentenced him to “life imprisonment.”
As to the other 15 claims, we previously found that
Betancourt was not entitled to an evidentiary hearing on those
claims when we affirmed, in relevant part, the district court’s
order denying him such a hearing. As a result, the law-of-the-
case doctrine precludes reconsideration of the claims here.
[10-12] Unlike the doctrines of claim preclusion and issue
preclusion, which involve successive lawsuits, the law-of-the-
case doctrine involves successive stages of one continuing - 190 -
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lawsuit. 36 When it applies, the law-of-the-case doctrine oper-
ates to preclude reconsideration of substantially similar, if
not identical, issues at successive stages of the same suit or
prosecution. 37 The doctrine promotes judicial efficiency and
protects parties’ settled expectations by preventing parties from
relitigating settled issues within a single action. 38
We have previously recognized certain exceptions to the
law-of-the-case doctrine, where “‘considerations of substantial
justice suggest a reexamination of the issue is warranted,’”
where materially and substantially different facts are pre-
sented, or where the applicable law has changed. 39 However,
nothing in the record before us suggests that any such excep-
tion applies here.
CONCLUSION
The trial court did not err in denying Betancourt’s peti-
tion for postconviction relief, because trial counsel’s decision
not to subpoena, depose, or obtain sworn statements from
Betancourt’s proposed witnesses was a reasonable strategic
decision and, thus, did not constitute ineffective assistance.
As such, Betancourt was not prejudiced by appellate coun-
sel’s failure to raise the issue on direct appeal. Additionally,
Betancourt’s other claims of ineffective assistance of counsel
either resulted in relief or are precluded under the law-of-
the-case doctrine. Accordingly, we affirm the order of the
district court.
Affirmed.
Freudenberg, J., not participating.
36
[CITATION]
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2024 06:08 PM CDT
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[CITATION]
Cite as 316 Neb. 777
Elaine Clemens, appellant, v. Curtis Emme,
Personal Representative of the Estate of
Arthur D. Emme, deceased, appellee.
___ N.W.3d ___
Filed June 7, 2024. No. S-23-146.
. Judgments: Estoppel: Appeal and Error. An appellate court reviews a
court’s application of judicial estoppel to the facts of a case for abuse of
discretion and reviews its underlying factual findings for clear error.
[SEGMENT 7]
. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit evi-
dence over a hearsay objection or exclude evidence on hearsay grounds.
. Directed Verdict: Evidence: Appeal and Error. A directed verdict is
proper only when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be decided
as a matter of law. In reviewing that determination, an appellate court
gives the nonmoving party the benefit of every controverted fact and all
reasonable inferences from the evidence.
. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
. Judgments: Verdicts. To sustain a motion for judgment notwithstand-
ing the verdict, the court resolves the controversy as a matter of law and
may do so only when the facts are such that reasonable minds can draw
but one conclusion.
. ____: ____. On a motion for judgment notwithstanding the verdict, the
moving party is deemed to have admitted as true all the relevant evi-
dence admitted that is favorable to the party against whom the motion
is directed, and, further, the party against whom the motion is directed
is entitled to the benefit of all proper inferences deducible from the rel-
evant evidence. - 778 -
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7. Motions for New Trial: Appeal and Error. An appellate court reviews
the denial of a motion for new trial for an abuse of discretion.
8. Equity: Estoppel. Judicial estoppel is an equitable doctrine that a court
invokes at its discretion to protect the integrity of the judicial process.
9. Estoppel. The doctrine of judicial estoppel protects the integrity of the
judicial process by preventing a party from taking a position inconsistent
with one successfully and unequivocally asserted by the same party in a
prior proceeding.
10. ____. Judicial estoppel is to be applied with caution so as to avoid
impinging on the truth-seeking function of the court, because the doc-
trine precludes a contradictory position without examining the truth of
either statement.
11. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
12. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
13. ____: ____: ____. The exclusion of evidence is ordinarily not prejudi-
cial where substantially similar evidence is admitted without objection.
14. Trial: Evidence: Testimony. Where the information contained in an
exhibit is, for the most part, already in evidence from the testimony of
witnesses, the exclusion of the exhibit is not prejudicial.
15. Partnerships: Intent. Being “co-owners” of a business for profit does
not refer to the co-ownership of property, but to the co-ownership of the
business intended to garner profits.
16. Partnerships: Words and Phrases. Co-ownership distinguishes part-
nerships from other commercial relationships such as creditor and
debtor, employer and employee, franchisor and franchisee, and landlord
and tenant.
17. Partnerships. Co-ownership generally addresses whether the parties
share the benefits, risks, and management of the enterprise such that
(1) they subjectively view themselves as members of the business rather
than as outsiders contracting with it and (2) they are in a better position
than others dealing with the firm to monitor and obtain information
about the business.
18. Partnerships: Proof. The objective indicia of co-ownership are com-
monly considered to be: (1) profit sharing, (2) control sharing, (3) loss
sharing, (4) contribution, and (5) co-ownership of property. The five
indicia of co-ownership are only that; they are not all necessary to estab-
lish a partnership relationship, and no single indicium of co-ownership
is either necessary or sufficient to prove co-ownership. - 779 -
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Cite as [CITATION]
19. ____: ____. The party asserting the partnership relationship exists
has the burden of proving that relationship by a preponderance of the
evidence.
20. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admis-
sion, as a formal act done in the course of judicial proceedings, is a
substitute for evidence and thereby waives and dispenses with the pro-
duction of evidence by conceding for the purpose of litigation that the
proposition of fact alleged by an opponent is true.
21. Pleadings: Intent. Judicial admissions must be deliberate, clear, and
unequivocal, and they do not extend beyond the intent of the admission
as disclosed by its context.
Appeal from the District Court for Holt County, Mark D.
Kozisek, Judge. Affirmed.
Frederick T. Bartell, of Fitzgerald, Vetter, Temple, Bartell &
Henderson, for appellant.
Tracey L. Buettner, of Stratton, DeLay, Doele, Carlson,
Buettner & Stover, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
I. INTRODUCTION
This case concerns an alleged business partnership between
the appellant and the decedent, who were also intimate part-
ners, but who never married. After the jury found against the
appellant as to the existence of a business partnership, the
district court for Holt County, Nebraska, entered a judgment
against her and in favor of the personal representative of the
decedent’s estate. The appellant challenges the jury’s verdict,
as well as several rulings by the district court. Finding no error,
we affirm.
II. BACKGROUND
. Factual Background
The decedent, Arthur Emme (Butch), established O’Neill
Body and Frame in O’Neill, Nebraska, in 1978. Butch’s - 780 -
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CLEMENS V. EMME
Cite as 316 Neb. 777
then-wife acted as his bookkeeper. She filed for divorce
in 1990.
Around that time, the appellant, Elaine Clemens, began
working at O’Neill Body and Frame. Clemens and Butch later
became intimately involved. They moved in together in 1992.
Thereafter, Clemens and Butch lived together while working
together at O’Neill Body and Frame and at other ventures,
including O’Neill Truck Service, two apartment complexes,
and cattle and ranching operations.
Clemens and Butch had a falling out in March 2015. Clemens
alleges that Butch subsequently closed or removed her name
from several bank accounts.
Butch died on June 14, 2017. Butch’s last will and testament
left the bulk of his estate to his son, Curtis Emme (Emme), who
was appointed copersonal representative of the estate. Randy
Hupp, Butch’s friend and former banker, was also appointed
copersonal representative of the estate but later resigned from
that position. Hupp is not a party to the present appeal.
. Clemens Files Suit Seeking Declaration
That Partnership Existed
On August 24, 2017, Clemens filed suit against Emme and
Hupp, as the copersonal representatives of Butch’s estate,
alleging that she and Butch created a business partnership in
1992. Clemens acknowledged that the partnership did not use
a name and was not memorialized in a written agreement,
but she alleged that it continued until Butch dissociated from
it due to his death. [CITATION] Clemens further alleged that before his
death, Butch breached his duties of loyalty and care to the
partnership. Clemens sought a declaration that a business
partnership existed between her and Butch, with each own-
ing equal interests in the partnership. Clemens also sought an
order accounting for and settling partnership assets and debts
[CITATION] - 781 -
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Cite as 316 Neb. 777
and distributing such assets and debts equitably, as well as
related relief.
In their answer, Emme and Hupp denied Clemens’ allega-
tions as to the business partnership and alleged affirmative
defenses. Among those defenses was a request that if a busi-
ness partnership was found to exist, it include Clemens’ rental
properties.
[SEGMENT 8]
. Proceedings Regarding
Judicial Estoppel
Clemens moved for partial summary judgment on the ground
that Emme and Hupp were “estopped and precluded from
denying the existence of a partnership” between her and Butch.
In support of that claim, Clemens pointed to statements that
she and Butch made about their relationship during an earlier
action to surcharge Clemens, in her capacity as the personal
representative of the estate of Butch’s ex-wife, for allegedly
breaching her fiduciary duties to the estate. [CITATION] Clemens also
pointed to language in the opinion of the Nebraska Court of
Appeals affirming the district court’s denial of the surcharge
petition, which opinion described Clemens as Butch’s “busi-
ness partner and significant other.” [CITATION]
The district court overruled Clemens’ motion for partial
summary judgment because it found that there was, at a
minimum, a genuine issue of material fact as to the business
relationship between Clemens and Butch. Specifically, the
district court declined to attribute the same significance that
Clemens did to Butch’s reference to her as “[his] secretary
. . . [b]usiness partner” during his deposition in the surcharge
action. The district court found that this statement failed to
eliminate any question as to whether Clemens and Butch were
business partners. The district court also found that the state-
ment was inconsistent with Butch’s testimony at the trial in
[CITATION] - 782 -
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the surcharge action that Clemens was “[his] secretary. But
partner in the business, the ownership of it, [he was] the sole
proprietor of [his] property.”
As to Clemens’ own statement during the surcharge action
that she was Butch’s business partner, the district court found
it was immaterial because for judicial estoppel to apply, there
would need to be a change in position by Butch. The district
court similarly found that the Court of Appeals’ statement that
Clemens was Butch’s business partner was dictum because it
was not necessary to the decision of the surcharge action.
Clemens then filed an amended reply, again asserting that
Emme and Hupp were judicially estopped, or barred by the
doctrine against inconsistent positions, from asserting that a
business partnership did not exist between her and Butch.
After a bench trial, the district court entered a judgment in
favor of Emme and Hupp and against Clemens on the issue of
judicial estoppel and dismissed that theory of recovery with
prejudice. In so doing, the district court rejected Clemens’
argument that in the surcharge action, Butch took the posi-
tion that they were business partners when he testified as fol-
lows: “Q. . . . Clemens testified yesterday that [she was his]
partner; is that correct? A. Yes.” The district court observed
that Butch’s testimony could be construed to mean either that
Butch agreed Clemens was his partner or that Butch agreed
Clemens had testified she was his partner. The district court
also observed that “partner was not defined” and could mean a
business partner or a domestic partner. In addition, the district
court observed that Butch had otherwise testified that “[he
was] the sole proprietor of [his] property.” The district court
took a similar view of statements that Butch made describing
Clemens as his “business manager and secretary” and “his sec-
retary and . . . business partner.”
The district court also found that Butch did not assert any
position that was adopted by the court in the surcharge action,
as is required for judicial estoppel. The district court observed
that while Butch was named in the caption of the petition for - 783 -
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[CITATION]
Cite as [CITATION]
surcharge, he was apparently never served with summons and
never made a party, no claim for refund from him appeared in
the record, and all issues raised adversely to Clemens in that
action were resolved without resort to any claimed position
taken by Butch. As to the Court of Appeals’ statement that
Clemens was Butch’s business partner, the district court con-
cluded that it was a “gratuitous comment” and not a finding of
fact, as Clemens argued.
. Proceedings Regarding Partnership
A jury trial was then held regarding the existence of a busi-
ness partnership between Clemens and Butch. The evidence
adduced at the trial was voluminous. We summarize it below
as it pertains to the primary arguments raised by Clemens
on appeal.
(a) Formation of Partnership
Clemens testified that she and Butch formed a partnership
in the summer of 1990, after she went to O’Neill Body and
Frame to apply for a job. Clemens testified that Butch initially
told her that “he needed somebody in the office.” Clemens
also testified that several days after this conversation, Butch
came to her house and told her that his then-wife had served
him with divorce papers. According to Clemens, Butch said
that his then-wife “always worked with [him]” and that he
“need[ed] a new partner to come and work with [him].”
Clemens stated that she began working at O’Neill Body and
Frame several days later, without any discussion of her title or
compensation. Clemens also testified that the partnership sub-
sequently expanded to other ventures and that she contributed
primarily services to the partnership.
In contrast, an employee who worked at O’Neill Body
and Frame when Clemens started working there testified
that Butch told him in August 1990 that Clemens was being
“[brought] in to run the books, take care of the financials,
office manager, secretary.” The employee also testified that - 784 -
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[CITATION]
CLEMENS V. EMME
Cite as [CITATION]
he did not believe Clemens “was coming in as [his] boss” or
Butch’s partner. Emme, who himself worked for O’Neill Body
and Frame from 1991 to 2000, testified similarly that during
his time there, Butch was “in charge of the towing opera-
tion” and Clemens was the business manager and secretary,
although she also went on tow calls. Emme also testified that
in his subsequent review of the company’s documents after
his father died, he found “a lot” of documents identifying
Clemens as the business manager, but he “never located a
single document . . . that referenced her as a partner.”
(b) Clemens’ and Butch’s
References to One Another
Several witnesses testified that they heard Clemens and Butch
describe themselves as “business partner[s]” or “partner[s].”
However, other witnesses testified that they could not recall
Clemens or Butch making such statements. Among those who
could not recall Clemens or Butch mentioning a partnership
were Hupp and Butch’s accountants, both of whom testified
that they would have “done things differently” if they had been
told of a business partnership.
There was also evidence of a flyer for O’Neill Body
and Frame that stated, “Butch & Elaine Emme, Owners &
Operators.” Clemens testified that Butch drafted the flyer and
paid for it out of the O’Neill Body and Frame account, and
one of her witnesses recalled seeing the poster “around town.”
However, other witnesses testified that they never saw the flyer
or heard Butch refer to Clemens as “Elaine Emme.”
In addition, there was a letter written by Clemens to a
prospective employee inviting him to come “work for us” at
O’Neill Body and Frame. Clemens signed the letter as the
business manager.
(c) Alleged Cocontrol
Several witnesses testified that Clemens interviewed or
hired them for positions at O’Neill Body and Frame and - 785 -
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[CITATION]
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instructed them on their duties. The witnesses also described
Clemens and Butch working “[h]and in hand,” “as a team,”
on tow calls at all hours and in all weather. There was similar
testimony that Clemens bid on and calved cattle and consigned
them for sale. In addition, Clemens described helping Butch
to determine what price to offer for a parcel of real property
and “physically sitting next to [him] when he was bidding.”
Clemens similarly described furnishing the apartments, draft-
ing leases, and dealing with tenants. Clemens opined that
Butch could not have drafted certain documents because he
did not “read and write very well.” Other witnesses testified
that “financial documents [were] not [Butch’s] forte.”
Emme’s witnesses, however, testified that Butch was “in
charge” and “always had the last word.” One witness testified
that on tow jobs, Clemens was “usually on the controls,” but
“Butch would tell her” what to do. This witness also testified
that “if [Clemens] had to order parts, [Butch] would tell her
what kind of parts.” The offer to the prospective employee
similarly stated that all “after hours in the shop” and “[w]ork
in the shop on [the employee’s] own vehicles” must be cleared
with Butch, although Clemens testified that she could have
given permission. Emme’s witnesses also disputed the sugges-
tion that Butch had difficulty comprehending financial state-
ments or other documents.
[SEGMENT 9]
(d) Bank Accounts
Witnesses for both parties agreed there were “[p]erhaps as
many as five” bank accounts that listed Clemens and Butch
as joint owners or that were partnership or multiple-party
accounts. One of those accounts was the checking account for
O’Neill Body and Frame, which apparently financed many
of the alleged partnership’s activities, as well as Clemens
and Butch’s household. Clemens was a co-owner and joint
tenant with rights of survivorship on that account from 1995
to 2007. Hupp testified that in light of that designation,
Clemens was “an owner of th[e] account” during that period. - 786 -
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[CITATION]
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But Hupp also testified that the account’s paperwork was
“contradictory” because it indicated a sole proprietorship.
According to Hupp, at one time, the bank listed multiple
names on sole proprietorship accounts “so that they could
have [an] authorized signer on there.” However, Hupp testi-
fied that this practice was discontinued in 2007 because it
was “unclear and not correct.” Hupp also testified that in
2007, Clemens was changed to an authorized signer on the
O’Neill Body and Frame checking account. Clemens testified
similarly that in 2007, “[t]he bank . . . changed their rules and
said that they couldn’t have a joint ownership on an account
with a sole proprietor.” But Clemens testified that she was
told “everything else remained the same” and that she did not
“intend to relinquish any rights [she] may have had” when she
agreed to the change.
There was also evidence of several bank accounts owned
solely by Butch with Clemens as an authorized signer.
(e) Real Property
Witnesses for both parties also agreed that all real estate,
personal property, and vehicles of the alleged partnership
were in Butch’s name and listed only on Butch’s personal
financial statements, not those of Clemens. Clemens testi-
fied that the real property, in particular, was in Butch’s name
because “[h]e liked to be able to go up to the land map and
say, It says Arthur D. Emme. He liked . . . to be able to say
that it was his. I think they call it a grandiose syndrome.”
Clemens testified similarly that the personal financial state-
ments were “done to satisfy banks” and were not “designed to
be entirely accurate.”
Clemens acknowledged that she owned multiple parcels of
property, collectively valued at $600,000, solely in her name,
but she maintained that Butch “didn’t want to be on” her prop-
erties. Clemens also acknowledged that she signed Butch’s
name on, witnessed, or notarized documents describing alleged
partnership properties as belonging solely to him. ```plaintext
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(f) Tax Documents and Ledgers
Witnesses for both parties similarly agreed that no partner-
ship tax returns were filed and that the assets and losses of
O’Neill Body and Frame were always listed on the Schedule
C of Butch’s individual tax returns. However, Clemens testi-
fied that the ledgers of O’Neill Body and Frame showed pay-
ments to her in and after 1999, when she no longer received
“W-2s or 1099s” from the company. Clemens testified simi-
larly that while the payments to her were initially for “[o]dd
number[s],” apparently meaning that they included fractions
of a dollar, the payments after April 1995 were for “even”
numbers. Clemens maintained that the ledgers showed that
she received a “flat draw,” without withholding, as a partner,
although she conceded that the ledgers did not reflect pay-
ments to Butch.
A former employee of O’Neill Body and Frame, however,
testified that he received an “even” amount, but that this was
not a draw and that he was not a partner. This employee also
testified that the company gave him a “1099,” rather than a
“W-2,” so that “[he] didn’t have to pay taxes” and “they didn’t
pay [his] Social Security.” Other witnesses testified similarly
that Butch “wanted to pay labor in cash” in part “[t]o avoid
paying taxes.”
(g) Other Evidence
There was evidence that Clemens and Butch co-owned a
livestock brand in 2010-13. However, Emme testified that
the brand was previously owned by his mother’s family, and
the brand’s ownership was subsequently transferred to him
and Butch.
Clemens also testified about “going to court” for O’Neill
Body and Frame. Several of the cases described were in small
claims court, and Clemens acknowledged that “in terms of . . .
representing O’Neill Body and Frame in court, [she was] or
would have had to have been [a] designated representative to
do that.”
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. Motion for Directed Verdict
At the close of all the evidence, Clemens moved for a
directed verdict in her favor, on the grounds that Emme and
Hupp “both testified under oath” to all elements of a business
partnership. Specifically, Clemens argued that Emme and Hupp
had admitted that she and Butch were “two or more people”
who “joined together,” both contributing money, services, or
property, for purposes of associating to carry on a business for
profit and divide and share in the profits. Clemens also argued
that Butch’s testimony in the surcharge action constituted a
judicial admission, requiring that a verdict be directed in her
favor. Emme disagreed.
The district court overruled Clemens’ motion. In so doing,
the district court observed that for a judicial admission, a party
must testify clearly and unequivocally as to a fact within the
party’s knowledge. But the district court was not persuaded
Emme or Hupp had “facts within their knowledge as far as
the sharing of the profits, the intent of the parties and that sort
of thing.”
. Jury Verdict and Judgment
The jury found that Clemens failed to meet her burden of
proof establishing that a partnership existed and failed to meet
her burden of proof establishing a presumption that a partner-
ship existed under Neb. Rev. Stat. § 67-410(3)(c) (Reissue
2018). The district court then entered judgment in favor of
Emme and against Clemens and dismissed Clemens’ complaint
with prejudice.
Clemens subsequently moved for judgment in her favor not-
withstanding the verdict or, alternatively, that the verdict be set
aside and a new trial be granted. That motion was overruled.
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III. ASSIGNMENTS OF ERROR
Clemens assigns, restated and reordered, that the district
court erred (1) in entering judgment in favor of Emme and
against her on the issue of judicial estoppel and related theo-
ries and dismissing such theories of recovery, (2) in its rulings
on alleged hearsay testimony, and (3) in refusing to enter a
directed verdict in her favor at the close of all evidence and
in overruling her motion to set aside the verdict and for a new
trial. Clemens also alleges that the jury verdict was clearly
wrong and was not supported by competent evidence.
IV. STANDARD OF REVIEW
[1] An appellate court reviews a court’s application of judi-
cial estoppel to the facts of a case for abuse of discretion and
reviews its underlying factual findings for clear error. [CITATION]
[2] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection or exclude evidence on hearsay grounds. [CITATION]
[3] A directed verdict is proper only when reasonable minds
cannot differ and can draw but one conclusion from the evi-
dence, that is, when an issue should be decided as a matter of
law. [CITATION] In reviewing that determination, an appellate court gives
the nonmoving party the benefit of every controverted fact and
all reasonable inferences from the evidence. [CITATION]
[4-6] Review of a ruling on a motion for judgment not-
withstanding the verdict is de novo on the record. [CITATION] To sustain
a motion for judgment notwithstanding the verdict, the court
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resolves the controversy as a matter of law and may do so
only when the facts are such that reasonable minds can draw
but one conclusion. 10 On a motion for judgment notwithstand-
ing the verdict, the moving party is deemed to have admitted
as true all the relevant evidence admitted that is favorable to
the party against whom the motion is directed, and, further,
the party against whom the motion is directed is entitled to the
benefit of all proper inferences deducible from the relevant
evidence. 11
[7] An appellate court reviews the denial of a motion for
new trial for an abuse of discretion. 12
The standard under which we review the jury’s verdict
requires more discussion. Clemens points to our decision in
[CITATION] to suggest
that we try factual questions de novo on the record and reach
a conclusion independent of the findings of the trial court
because hers is an action for the dissolution of a partnership
and an accounting between partners, and such an action is
one in equity. 14 Clemens is correct that in [CITATION], we stated that in considering the
proper standard of review for the question of the existence
of a partnership, we apply the standard of review generally
applicable to the underlying action. 15 We also stated that an
action for the dissolution of a partnership and an accounting
between partners is one in equity and that such actions are
generally reviewed de novo on the record. 16
10
Id.
11
Id.
12
Id.
13
[CITATION]
14
See, e.g., id.
15
Id.
16
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However, prior to [CITATION], we stated that where the existence of a partnership is in dispute and the evidence is contradictory, the question is for the jury under appropriate instructions. Our earlier cases also stated that the verdict of a jury in such a case “will not be set aside on the ground that it is against the weight of testimony, unless it is clearly so.” 17
In the present case, though, we need not resolve the tension between these two lines of cases because the evidence here is insufficient under either standard to establish that a partnership existed. 18
V. ANALYSIS
. Emme Was Not Estopped From Denying
Existence of Business Partnership
Clemens’ first assignment of error concerns the district court’s finding that Emme was not judicially estopped, or barred by the doctrine of inconsistent positions, from denying that she and Butch were business partners. Clemens claims that “[w]hile sworn to tell the truth, under oath, during the surcharge trial,” Butch unequivocally agreed that it was “correct” that she had testified she was “[his] partner.” 19 Clemens also claims that there were “[n]umerous other instances of Butch referring to [her] as his partner” during the surcharge action. 20 As a result, Clemens argues that Emme should not have been allowed to deny the existence of a business partnership between her and Butch. Emme, on the other hand, argues
17
[CITATION]
19
Brief for appellant at 36.
20
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that the doctrines of judicial estoppel and inconsistent posi-
tions “do[] not apply to the facts of this case.” [CITATION]
[8,9] Judicial estoppel is an equitable doctrine that a court
invokes at its discretion to protect the integrity of the judicial
process. [CITATION] The doctrine of judicial estoppel “protects the integ-
rity of the judicial process by preventing a party from taking a
position inconsistent with one successfully and unequivocally
asserted by the same party in a prior proceeding.” [CITATION]
[10] Fundamentally, the intent behind the doctrine of judi-
cial estoppel is to prevent parties from gaining an advantage
by taking one position in a proceeding and then switching
to a different position when convenient in a later proceed-
ing. [CITATION] In other words, the doctrine is designed to “‘“prevent
parties from playing fast and loose with the courts.”’” [CITATION]
Judicial estoppel is, however, to be applied with caution so
as to avoid impinging on the truth-seeking function of the
court, because the doctrine precludes a contradictory posi-
tion without examining the truth of either statement. [CITATION] We
have also held that before a court may apply the doctrine of
judicial estoppel, “‘bad faith or an actual intent to mislead on
the part of the party asserting inconsistent positions must be
demonstrated.’” [CITATION]
In light of the foregoing principles, we find that even if
Butch were seen to have been a party to the surcharge action
for purposes of the application of the doctrine of judicial
estoppel, his position in that action was not inconsistent with
Emme’s position here, because Butch never unequivocally
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stated that Clemens was his business partner. 28 Clemens relies
primarily upon the following testimony by Butch in the sur-
charge action: “Q. . . . Clemens testified yesterday that [she
was his] partner; is that correct? A. Yes.” However, Butch’s
statement can be construed in several ways, as the district
court observed. The statement could mean that Butch agreed
Clemens was his partner or that Butch agreed Clemens had
testified she was his partner. The statement could also refer
to a business partner or an intimate partner. Moreover, imme-
diately after the exchange in question, Butch testified that
Clemens was “[his] secretary. But partner in the business, the
ownership of it, [he was] the sole proprietor of [his] property.”
There is similar ambiguity in Butch’s other statements in the
surcharge action, including his description of Clemens as
“[his] secretary . . . [b]usiness partner.”
Furthermore, even if Butch were seen to have taken the
position that Clemens was his business partner, the result
would be the same because that position was not successfully
asserted in the surcharge action. As we have explained, for a
party to have successfully asserted a position in a prior action
for purposes of judicial estoppel, “the party must have been
successful in getting the first court to accept the position.” 29
“[A]bsent such acceptance, the doctrine of judicial estoppel
does not apply.” 30 Judicial acceptance does not require that a
party prevail on the merits. 31 However, the position urged by
28
Cf., [CITATION] (claim for breach of contract not inconsistent with fraud claim, where fraud
claim was premised on existence of contract); [CITATION] (not necessarily inconsistent for employer to
contest compensability of injury before Workers’ Compensation Court and
also claim subrogation interest in proceeds of third-party settlement).
29
[CITATION].
30
Id.
31
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the party must have been “adopted” by the first court “either as
a preliminary matter or as part of a final disposition.” [CITATION]
For example, in [CITATION], we found that
the plaintiff was judicially estopped from asserting that the
SID’s assessments were invalid in a claim against the SID.
We did so because the plaintiff had previously recovered a
judgment from another party on a claim for breach of contract
that was premised on the theory that the SID’s assessments
were valid. [CITATION] We took a similar view in [CITATION]
In that case, a landlord sought to assert that a
condition precedent for an option to purchase real property
had not been met in response to a claim for damages for the
landlord’s delay in allowing the purchase of the property. [CITATION] We
found that the landlord was judicially estopped from doing so
because the landlord had previously persuaded the court to
order the sale of the property on the theory that the option had
been duly exercised. [CITATION]
Here, in contrast, the position that Clemens and Butch
were business partners was not adopted by the court in the
surcharge action as a preliminary matter or as part of the final
disposition. In fact, the petition in the surcharge action alleged
that it was the “intimate relationship” between Clemens and
Butch, and not their alleged business partnership, that caused
Clemens’ dealings with Butch, in her capacity as personal
representative of Butch’s ex-wife’s estate, to conflict with her
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duties to the estate. [CITATION] The court’s decisions in the surcharge action were similarly based on matters other than the existence of the alleged business partnership. Specifically, the court ruled in Clemens’ favor and against the surcharge petitioner because the petitioner failed to meet his “initial burden of proof to show that Clemens’ [dealings] benefited [her] at the estate’s expense.” [CITATION]
It is true that the Court of Appeals described Clemens as Butch’s “business partner” in its opinion affirming the denial of the surcharge petition. [CITATION] However, that statement, which was made in the opinion’s opening paragraph, prior to the recitation of the background facts, cannot be seen to have been adopted by the Court of Appeals, because it played no role in the Court of Appeals’ conclusion that the petitioner failed to produce evidence showing the value of over 200 items of Butch’s ex-wife’s personal property that Clemens allegedly failed to account for or showing that Butch’s bill for hauling personal property for the estate was excessive. [CITATION] Instead, the statement was dictum, as the district court observed.
Clemens argues that the Court of Appeals’ statement is not dictum because it did not concern “‘some question of law.’” [CITATION] Clemens bases this argument on a 1924 opinion of this court, wherein we define dictum as “‘[a]n opinion expressed by a court upon some question of law which is not necessary to the decision of the case before it.’” [CITATION] However, we elsewhere define dictum more broadly to mean a “judicial opinion[] expressed by the writer on a point that is not necessarily raised and not involved in the case, or on a point in which
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the judicial mind was not directed to the precise question
necessary to be determined to fix the rights of the parties.” 44
Under this broader definition, which is consistent with the
general meaning of “dictum” as a legal term of art, 45 the Court
of Appeals’ statement was dictum because the court’s opin-
ion regarding the business relationship between Clemens and
Butch was not directed to the precise question necessary to be
determined to fix the parties’ rights in the surcharge action.
Clemens’ corollary claim that the Court of Appeals’ state-
ment that she and Butch were business partners was a “factual
finding,” having the effect of a jury verdict, is similarly with-
out merit. 46 A finding of fact is a “‘determination concern[ing]
whether the evidence showed that something occurred or
existed.’” 47 The Court of Appeals’ statement that Clemens
was Butch’s business partner was not a finding of fact in this
sense because the parties in the surcharge action did not dis-
pute whether Clemens and Butch were business partners, and
the trier of fact did not have to decide that question.
Accordingly, because Butch never unequivocally stated in
the surcharge action that Clemens was his business partner,
and because the courts in that action did not adopt the posi-
tion that Clemens and Butch were business partners, the dis-
trict court did not abuse its discretion in finding that Emme
was not judicially estopped or otherwise barred from denying
44
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the existence of a business partnership between Clemens
and Butch.
. No Error in Rulings
on Alleged Hearsay
Clemens’ second assignment of error concerns the district
court’s rulings on alleged hearsay at the trial. Clemens argues
that the district court improperly allowed Emme and Hupp to
testify about statements made by Butch, but refused to allow
her to introduce an exhibit containing her own prior consistent
statement that she was Butch’s business partner. Emme coun-
ters that the testimony regarding Butch’s statements to which
he understands Clemens to refer was not hearsay because it
was not offered for the truth of the matter asserted. Emme
also argues that the exclusion of Clemens’ exhibit was proper
or, alternatively, was not prejudicial to her.
[11] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. 48 Hearsay is
not admissible unless otherwise provided for in the Nebraska
Evidence Rules or elsewhere. 49 However, by definition, state-
ments are not hearsay if they are consistent with the declarant’s
testimony and are offered to rebut an express or implied charge
against the declarant of recent fabrication, improper influence,
or improper motive under Neb. Rev. Stat. § 27-801(4)(a)(ii)
(Cum. Supp. 2022). 50
(a) Clemens Failed to Identify Any Objections
That She Made on Hearsay Grounds
A cursory review of the bill of exceptions in this case
shows that Clemens objected to certain statements at the trial
on hearsay grounds and that the district court overruled some
48
[CITATION]
50
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of those objections. However, Clemens does not cite any
of those statements in her brief on appeal in support of this
assignment of error. Instead, Clemens cites to portions of the
bill of exceptions containing her oral motion in limine to bar
Hupp from testifying as an expert on banking matters, as well
as several statements to which she did not object at trial. This
is insufficient for us to review Clemens’ claim that Emme and
Hupp were improperly allowed to testify about statements
made by Butch. As an appellate court, we decline to scour the
record on appeal in search of hearsay objections by Clemens
that were overruled by the district court that might support
her claim. 51
(b) Clemens Not Prejudiced by Exclusion
of Her Exhibit on Hearsay Grounds
As to Clemens’ claim that the district court improperly
excluded evidence of her own prior consistent statement that
she and Butch were business partners, there is no merit. At
the trial in the present matter, Clemens sought to introduce an
exhibit that contained the following excerpt from her deposi-
tion in the surcharge action:
Q. And what is your occupation?
A. I’m a business manager and a partner at O’Neill
Body & Frame.
Q. And who is your partner?
A. Butch Emme, also known as Arthur.
Q. Is there a formal partnership arrangement?
A. No.
Q. How long have you been a partner?
A. 22 years almost, 21 and some months.
Clemens argues that her exhibit constituted a prior consist
ent statement, introduced to rebut what she characterizes as
Emme’s “allegation and inference . . . that she had recently
51
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fabricated her [claim] that she and Butch were partners when
she filed this lawsuit.” 52
[12-14] However, even assuming that the exhibit in question
is not hearsay, Clemens was not prejudiced by its exclusion
because immediately after the exhibit was excluded, Clemens
herself testified that she had previously “testified in court”
that Butch referred to her as “his business partner.” In a civil
case, such as this, the admission or exclusion of evidence is
not reversible error unless it unfairly prejudiced a substantial
right of the complaining party. 53 The exclusion of evidence is
ordinarily not prejudicial where substantially similar evidence
is admitted without objection. 54 In particular, where the infor-
mation contained in an exhibit is, for the most part, already in
evidence from the testimony of witnesses, as was the case here,
the exclusion of the exhibit is not prejudicial. 55
Accordingly, because Clemens failed to identify any hear-
say that the district court admitted over her objections, and
because she was not prejudiced by the exclusion of the exhibit
containing her own prior statement that she and Butch were
business partners, the district court did not abuse its discretion
in its rulings on the alleged hearsay.
. Proof of Business Partnership
Under Nebraska Law
Before turning to Clemens’ remaining assignments of error,
both of which relate to the alleged existence of a business
partnership between her and Butch, we briefly review the legal
framework governing such partnerships in Nebraska.
[15,16] At all relevant times, Nebraska law defined a
“partnership” as an association of two or more persons “to
52
Brief for appellant at 47.
53
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carry on . . . a business for profit.” 56 Being “co-owners” of
a business for profit does not refer to the co-ownership of
property, but to the co-ownership of the business intended to
garner profits. 57 Co-ownership distinguishes partnerships from
other commercial relationships such as creditor and debtor,
employer and employee, franchisor and franchisee, and land-
lord and tenant. 58
[17,18] Co-ownership generally addresses whether the par-
ties share the benefits, risks, and management of the enterprise
such that (1) they subjectively view themselves as members of
the business rather than as outsiders contracting with it and
(2) they are in a better position than others dealing with the
firm to monitor and obtain information about the business. 59
The objective indicia of co-ownership are commonly con-
sidered to be: (1) profit sharing, (2) control sharing, (3) loss
sharing, (4) contribution, and (5) co-ownership of property. 60
However, the five indicia of co-ownership are only that; they
are not all necessary to establish a partnership relationship,
and no single indicium of co-ownership is either necessary or
sufficient to prove co-ownership. 61
[19] The party asserting the partnership relationship exists
has the burden of proving that relationship by a preponder-
ance of the evidence. 62 However, by statute, a person who
receives a share of the profits of a business is presumed to
be a partner in the business unless the profits were received
56
See Neb. Rev. Stat. § 67-402(6) (Reissue 2018). See, also, [CITATION]
58
See id.
59
Id.
60
Id.
61
Id.
62
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in payment for services as an independent contractor or of
wages or other compensation to an employee or under speci-
fied circumstances not relevant here. 63
4. Motion for Directed Verdict and Motion to
Set Aside Verdict and for New Trial
Were Properly Overruled
Clemens’ third assignment of error concerns the overruling
of her motion for a directed verdict in her favor on the ques-
tion of whether there was a business partnership between her
and Butch, as well as the overruling of her subsequent motion
to set aside the verdict and for a new trial. Clemens argues
that Emme and Hupp testified at the trial in the present matter
that she and Butch joined together to carry on a business for
profit and share in the profits. As such, she argues that Emme
and Hupp judicially admitted all the elements of a business
partnership. Alternatively, Clemens argues that the other evi-
dence presented at the trial established the existence of a busi-
ness partnership. Emme disagrees.
(a) Emme and Hupp Did Not Judicially Admit
Elements Required to Prove Partnership
Between Clemens and Butch
[20,21] A judicial admission, as a formal act done in the
course of judicial proceedings, is a substitute for evidence and
thereby waives and dispenses with the production of evidence
by conceding for the purpose of litigation that the proposition
of fact alleged by an opponent is true. [CITATION] Judicial admissions
must be deliberate, clear, and unequivocal, and they do not
extend beyond the intent of the admission as disclosed by its
context. [CITATION] Where a party testifies clearly and unequivocally to
a fact within his or her own knowledge, such testimony may
63
§ 67-410(3)(c).
64
[CITATION]
65
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be considered as a judicial admission. 66 That rule has particu-
lar application where the parties so testifying made no effort
to retract, qualify, or otherwise explain the positive force of
their own evidence. 67
In the present case, even assuming that Hupp can be seen
as an opponent, given that he resigned as copersonal repre-
sentative before the trial, the statements by Hupp upon which
Clemens relies fall short of judicially admitting all elements
of a business partnership. Hupp did testify that he had no
reason to believe that the various ventures here were anything
other than for-profit businesses. However, while that is an ele-
ment of a business partnership, it is not one that is disputed
by the parties. 68
Instead, the parties dispute whether Clemens and Butch
joined together to carry on those businesses and share in the
profits. On those questions, the majority of the relevant tes-
timony by Hupp was less conclusive than Clemens suggests.
In the excerpts from the bill of exceptions cited by Clemens,
Hupp testified that Butch’s “business components” changed
over time; that O’Neill Truck Services “came into creation,”
apartments were “involved,” and there was a cattle opera-
tion; and that the value of Butch’s assets was greater at his
death than in 1990. However, none of that testimony estab-
lishes that Clemens and Butch joined together to carry on
those businesses and share in the profits. The same is true of
Hupp’s testimony that Clemens was “part of the transactions”
with O’Neill Body and Frame from the time he began work-
ing as the company’s banker in 1994 and that the ledgers for
O’Neill Body and Frame showed payments to Clemens. Hupp
never specified what Clemens’ part in those transactions was.
66
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And as to the payments to Clemens, Hupp disclaimed know-
ing whether she was “an employee, an independent contractor
or a partner.”
Clemens also points to Hupp’s testimony that she was a co-
owner of the O’Neill Body and Frame checking account from
1995 to 2007. However, as recounted above in our descrip-
tion of the trial, Hupp qualified that testimony by explaining
that during that period, the bank listed persons as co-owners
on sole proprietorship accounts in order to designate them as
authorized signers.
Otherwise, the testimony by Hupp upon which Clemens
relies was that he did not recall any discussions with her or
Butch about whether they had a business partnership and he
had no knowledge of who owned the cattle brand.
The testimony by Emme upon which Clemens relies simi-
larly falls short of establishing a business partnership. Clemens
points to Emme’s statement that he heard Hupp’s “testimony
about the quantity and quality of work done by . . . Clemens
in th[e] various operations” and would “agree with [it].” Hupp
testified that Clemens “worked more than 40 hours per week
. . . for many years” and was “a very hard worker.” But people
can work a significant number of hours and perform their
work diligently without being partners in a business.
(b) Other Evidence Cited by Clemens Was Insufficient
to Warrant Directed Verdict in Her Favor
The other evidence cited by Clemens is similarly insuf-
ficient for us to find that the district court erred in failing
to direct a verdict in her favor. As stated above, a directed
verdict is proper only when reasonable minds cannot differ
and can draw but one conclusion from the evidence. 69 Here,
however, the evidence regarding the existence of a business
partnership cut both ways, such that reasonable minds could
draw differing conclusions.
69
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CLEMENS V. EMME
Cite as 316 Neb. 777
Clemens points specifically to evidence that she and Butch
had “numerous bank accounts” that were jointly owned or
were partnership accounts, described themselves as partners
in the surcharge action, held themselves out to the commu-
nity as business partners, referred to each other as “business
partners,” and operated the businesses as a partnership. 70
However, as was recounted in our description of the trial,
there was also evidence that the bank responsible for the
O’Neill Body and Frame checking account listed persons as
co-owners on sole proprietorship accounts in order to des-
ignate them as authorized signers and that other accounts
were solely owned by Butch. Butch’s statements during the
surcharge action about his relationship with Clemens were
equivocal, as was previously explained. Likewise, while some
witnesses recalled Clemens and Butch describing themselves
as partners, others did not. The testimony was similarly incon-
clusive as to whether Clemens and Butch exercised cocontrol
of the businesses.
Clemens also points to the fact that she “represented the
partnership in numerous . . . civil litigation cases” 71 as evi-
dence that there was a business partnership. In her testimony
at the trial, Clemens specifically mentioned suits in small
claims court and serving as the designated representative of
O’Neill Body and Frame. Neither necessarily proves that
she was a partner. An employee may represent a partnership,
limited liability company, corporation, or other kind of orga-
nization or entity in small claims court and can also serve as
its designated representative. 72 Insofar as Clemens claims that
her “representation” went beyond that, we would note that a
partnership must be represented by a member of the bar. 73 A
70
Brief for appellant at 45.
71
Id.
72
See Neb. Rev. Stat. § 25-2803 (Cum. Supp. 2022).
73
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[SEGMENT 13]
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CLEMENS V. EMME
Cite as 316 Neb. 777
legal proceeding in which a party is represented by a person
not admitted to practice law is a nullity and is subject to
dismissal. [CITATION] Individuals can represent themselves in legal pro-
ceedings in their own behalf, but one who is not an attorney
cannot represent others. [CITATION]
(c) Neither Setting Aside Verdict
nor New Trial Was Warranted
Clemens’ argument regarding the overruling of her motion
to set aside the verdict and for a new trial is derivative of her
claim that Emme and Hupp judicially admitted the elements of
a business partnership. Because that claim fails for the reasons
set forth above, the district court cannot be said to have erred
in overruling Clemens’ motion to set aside the verdict or for
a new trial.
5. Jury Verdict Was Not Clearly Wrong and
Was Supported by Competent Evidence
Clemens’ fourth and final assignment of error concerns
the jury’s verdict in favor of Emme and against her. Clemens
argues that the verdict was clearly wrong and was not supported
by competent evidence. Clemens argues that she met her bur-
den to show “‘the association of two or more persons to carry
on as co-owners a business for profit.’” [CITATION] Specifically, as evi-
dence of her and Butch’s association, Clemens points to their
alleged “refer[ences] to each other as ‘business partners.’” [CITATION]
Similarly, as evidence of carrying on as co-owners, Clemens
points to her and Butch’s “operat[ing] numerous businesses
and acquir[ing] real estate through their joint efforts over
decades of work.” [CITATION] Emme, on the other hand, argues that
[CITATION] - 806 -
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CLEMENS V. EMME
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there was “more than enough objective evidence on which to
base the jury verdict in favor of [him].” 79
We agree with Emme. As we explained when discussing
Clemens’ claim that the district court erred in failing to direct
a verdict in her favor, the evidence regarding her and Butch’s
references to each other and their conduct of the businesses
was mixed. However, Clemens had the burden to prove by
a preponderance of the evidence that a business partnership
existed between her and Butch. Even when reviewing an
equity case de novo on the record where evidence is in dis-
pute, we may give weight to the fact that the fact finder heard
and observed the witnesses and accepted one version of the
facts rather than another. 80
Here, there was no written partnership agreement; there
were no partnership tax returns ever filed; there was no real or
personal property titled jointly in the names of Clemens and
Butch; though five bank accounts were titled as co-owners,
other bank accounts were not, and there was an explanation
as to why Clemens was listed as a co-owner on the account
for O’Neill Body and Frame for a period of time; there was
no evidence that Clemens and Butch were jointly responsible
for any indebtedness; there was no evidence that Clemens
was responsible for any losses incurred by the businesses;
and there was conflicting evidence as to whether Clemens had
control over the business. As such, we find the jury determina-
tion to be correct.
VI. CONCLUSION
There is no merit to Clemens’ assignments of error regard-
ing judicial estoppel, alleged hearsay evidence, her motion for
a directed verdict, her motion to set aside the verdict and for a
new trial, or the jury verdict in Emme’s favor and against her.
Accordingly, we affirm the rulings of the district court.
Affirmed.
79
Brief for appellee at 28.
80
[CITATION]
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
[CITATION]
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
MARIO SANTOS, APPELLANT.
Filed June 4, 2024. No. A-23-233.
Appeal from the District Court for Douglas County: J RUSSELL DERR, Judge. Affirmed.
Kenneth Jacobs, of Hug & Jacobs, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph for appellee.
PIRTLE, Chief Judge, and RIEDMANN and BISHOP, Judges.
PIRTLE, Chief Judge.
I. INTRODUCTION
Mario Santos was charged in the district court for Douglas County with two counts of first
degree sexual assault on a child and one count of first degree sexual assault. After trial, he was
convicted on both counts of sexual assault on a child and acquitted of the other sexual assault
charge. However, after the trial concluded, Santos discovered undisclosed evidence pertaining to
his two convictions. After Santos filed a motion for new trial, the district court vacated one of his
convictions and ordered a new trial to be held but denied the motion as to his other conviction.
Santos then filed a second motion for new trial which the district court denied.
On appeal, Santos assigns the district court erred in making an evidentiary ruling at trial
and in denying his motions for new trial. He also assigns that his trial counsel was ineffective in a
variety of ways. For the reasons that follow, we affirm.
II. BACKGROUND
In 2016 and 2017, Alma B. and her three children lived in a two-bedroom house in Omaha,
Nebraska. While they lived in this home, it was not uncommon for other families to live with them.
At various points, the household consisted of Alma and her three children, a woman named Sarai
and her five children, Carmen P. and her four children, and another woman and her two children.
Additionally, sometime in the summer of 2016, Santos began living in the home as well. With all
these people living in the residence, Santos slept on the living room couch with one of Carmen’s
children, H.B.P.
Santos, born in 1975, held himself out to be a “curandero” which is a type of spiritual
healer. In this role, Santos would regularly organize and lead prayer rituals in the basement of the
home and in the backyard shed. Alma, Carmen, Sarai, and their children often participated in these
ceremonies. The rituals involved Santos giving the participants cigars and having them drink from
a wooden cup that contained an undisclosed liquid. While only Santos knew what was in the cup,
some of the participants believed it contained alcohol. After drinking from the cup, some of the
participants had negative effects that involved vomiting or passing out. Alma reported that there
were times she passed out after drinking from the cup and woke up naked feeling “like someone
had touched [her] body.”
In March 2018, Alma reported to law enforcement that Santos sexually assaulted her from
September to November 2016. However, she reported his name as “Mario Benato” so when law
enforcement attempted to check his records and locate him, they were unable to do so. Because of
that, and length of time between the report and alleged conduct, the investigation did not progress.
Then in November 2018, Alma’s son, A.P., disclosed that Santos had sexually assaulted
him. On January 8, 2019, A.P. participated in a forensic interview at Project Harmony. At the
interview, A.P. was asked about “Mario” and he reported that Santos had abused him.
Additionally, A.P. reported that he previously saw Santos sexually abuse Carmen’s son,
H.B.P., who had been sleeping on the couch with Santos. Law enforcement located H.B.P. and he
participated in a Project Harmony interview. During this interview, H.B.P. also disclosed sexual
abuse by Santos. Following H.B.P.’s interview, Santos was arrested on February 11, 2019.
. DISTRICT COURT PROCEEDINGS
On March 7, 2019, the State charged Santos with two counts of first degree sexual assault
on a child. Count I alleged that Santos sexually penetrated A.P. and count II alleged he sexually
penetrated H.B.P. Law enforcement then discovered evidence regarding a separate incident
involving Santos sexually assaulting Alma. Accordingly, Santos’ charges were ultimately
amended on March 25, 2021, to include an additional third count of first degree sexual assault.
The date range for each count alleged the sexual assaults occurred between January 1, 2016, and
May 30, 2018. After a series of pretrial motions that are not relevant to this appeal, a jury trial was
held from March 19 to March 24, 2021.
At trial, A.P. testified that Santos was living with him and his family when he was around
10 years old. He explained that one night Santos woke him up in his bedroom and took him to the
living room. Once there, Santos had A.P. take off his shorts and then undressed himself. A.P. then
alleged that Santos had him get on his knees, put his penis in his mouth, and told him to “suck it.”
Santos proceeded to put his hands on A.P.’s head and thrusted his penis in and out of his mouth.
[SEGMENT 14]
Afterward, Santos put his penis into A.P.’s butt and thrusted back and forth. A.P. stated that it hurt
when Santos put his penis in his butt and that he cried while it happened. A.P. testified that Santos
eventually ejaculated into his mouth.
A.P. then explained that he saw Santos do similar things to H.B.P. He stated that he woke
up one night to a loud banging and saw Santos putting his penis inside of H.B.P.’s butt. However,
on cross-examination, A.P. retracted these statements and said that he never witnessed H.B.P.’s
abuse. Instead, he said that he learned of H.B.P.’s abuse from Alma who told him about it on the
way to his Project Harmony interview.
H.B.P. then testified and described a separate incident where Santos sexually abused him.
This incident occurred at a different residence sometime from October 2015 to May 2017, before
H.B.P lived with Alma and her family. At some point during this period, Santos stayed with
H.B.P.’s family at this separate residence. H.B.P. recalled that he was 6 or 7 years old when he
was alone with Santos one night. During this incident, H.B.P. stated that Santos touched his
bottom, pulled down his pants, and then put his penis into his butt. H.B.P. explained that Santos
told him afterward to not tell his mother or something bad would happen to him. H.B.P. later told
a group of people about this incident that included A.P., Alma, Carmen, and Alma’s other son,
J.P.B.
J.P.B. then testified at trial. J.P.B. stated he was 13 years old when Santos lived with them.
He began by generally describing the rituals Santos organized and led. He stated the first couple
of rituals were normal, but strange things began to happen as he continued to participate in them.
He described how Santos blew cigar smoke into the participants’ faces and circulated the wooden
cup filled with what he believed was alcohol.
J.P.B. then explained that during some of these rituals, the participants passed out. He
recalled one time when a child drank the liquid causing him to faint. Then one time while a ritual
was happening in the shed without him, he peered in and saw Alma unconscious on the floor. He
stated that he saw her on the floor but did not do anything because the ritual was still ongoing. He
testified that she did not wake up for several hours after this happened.
A couple of weeks after this incident, J.P.B. confronted Santos about the rituals and called
him a “devil-worshipper” which angered him. In retaliation, Santos tied him to a chair. While tied
to the chair, J.P.B. noticed Alma was unconscious in a bedroom. He testified that she was not
moving and looked like she was drugged.
J.P.B. continued to explain that while he was still tied to the chair, Santos grabbed Alma,
took off her clothes, rubbed her chest, laid her on her back, and sexually assaulted her in front of
him. Throughout this incident, J.P.B. said that Alma remained unconscious. After Santos was
finished, he left J.P.B. tied to the chair and went to sleep. J.P.B. was eventually able to untie himself
and assisted Alma who woke up around 3 hours later with no memory of the events.
Alma and Carmen also testified at trial. Because Alma and Carmen are both undocumented
immigrants, their testimony involved short discussions about U-Visa’s or “victim visas.” Victim
visas are a United States nonimmigrant visa which is set aside for victims of crimes who are willing
to assist law enforcement and government officials in the investigation or prosecution of the
criminal activity. In short, they permit such victims to enter or remain in the United States when
they might not otherwise be able to do so.
During Alma’s testimony, the defense asked her whether she knew what a victim visa was
and whether she had attempted to change her immigration status since these allegations were made
against Santos. Alma responded “no” to both questions. Alma was also asked whether she had
consulted an attorney about changing her immigration status and whether anyone at Project
Harmony helped her fill out immigration forms. Alma responded that she did not remember.
During Carmen’s testimony, the defense asked if she knew what a victim visa was, but the district
court sustained the State’s “[b]eyond the scope” objection so Carmen did not answer the question.
During closing arguments, Santos argued that Alma and Carmen had told their children to
falsely accuse him of sexual assault so that they could obtain victim visas to stay in the country.
In response, the State argued that the only evidence adduced regarding immigration status or victim
visas was Alma’s testimony that she was undocumented and did not know what a victim visa was.
Following closing arguments, the district court submitted the case to the jury. The jury
found Santos guilty of both counts of first degree sexual assault of a child, but not guilty on the
third count alleging first degree sexual assault. The district court accepted the jury’s verdict,
convicted Santos on counts I and II, and acquitted him of the third.
. POST TRIAL PROCEEDINGS
On April 27, 2021, about a month after the verdict, Santos filed a motion for new trial. In
this motion, he argued that a new trial was warranted on both convictions due to prosecutorial
misconduct and the State’s failure to disclose evidence. He essentially argued that Alma perjured
herself when she denied knowing what a victim visa was because she had been in contact with an
attorney to apply for one. Additionally, he claimed the prosecutors knew that Alma’s testimony
was false because they were aware that she had obtained this attorney before the trial began.
Evidence was later adduced that Alma’s attorney had emailed the prosecution prior to trial to ask
if they could sign off on the visa application. Santos argued a new trial was necessary because the
State failed to disclose this information, failed to correct Alma’s false testimony at trial, and
utilized the false testimony in its closing argument.
After a hearing on this motion, the district court issued an order partially granting the
motion and partially denying it. In relation to count I, which related to A.P.’s allegations, the court
determined the State’s use of Alma’s perjured testimony constituted prosecutorial misconduct and
prejudiced Santos’ right to a fair trial. However, for count II, which related to H.B.P.’s allegations,
the court determined Santos failed to demonstrate he was prejudiced by the perjured testimony and
non-disclosure because the evidence did not “go to the credibility of witnesses whose testimony
form[ed] the bases of his conviction.” Accordingly, the court ordered a new trial on count I, but
did not alter Santos’ conviction on count II.
On August 31, 2021, Santos filed a second motion for new trial. In this motion, he argued
that a new trial was warranted on his conviction for count II because he had discovered undisclosed
evidence that Carmen had a pending victim visa application at the time of trial. Santos learned that
an attorney, Jason Finch, represented Carmen in this endeavor and uncovered the application after
subpoenaing his office. This evidence demonstrated that Carmen finalized an application for a
victim visa in 2020, and that the Omaha police department had approved it after Carmen assisted
law enforcement in a different criminal case involving the victimization of her daughter.
In its order denying the motion, the district court articulated that Carmen’s victim visa
application had been filed with the Department of Homeland Security 7 months before Santos’
trial began and was awaiting approval while the trial ensued. The court also concluded that the
State was never in possession of Carmen’s application, that no one working on Santos’
investigation or prosecution was familiar with Carmen’s application, and that the Omaha police
department did not have a system in place that allowed the sharing of information related to victim
visas. Further, the court reasoned that the defense could have discovered Carmen’s victim visa
application prior to the trial if it had been reasonably diligent. Due to these reasons, the court
determined Santos was unable to prove prosecutorial misconduct or a Brady violation as to count
II and denied his motion.
On July 19, 2022, a sentencing hearing was held. On Santos’ sole remaining conviction for
first degree sexual assault on a child, the district court sentenced him to 48 to 50 years’
imprisonment. Following this hearing, the State voluntarily dismissed the pending charge it had
refiled following the district court’s grant of a new trial on count I.
Santos pursued a direct appeal in this matter, but the appeal was dismissed because his
attorneys did not file the appeal within the 30-day time limit. Santos then moved for postconviction
relief where he alleged that he received ineffective assistance of counsel due to his attorneys’
untimely filing of his appeal. The district court granted his request for postconviction relief in the
form of a new direct appeal. This is that appeal.
III. ASSIGNMENTS OF ERROR
Restated, Santos assigns the district court erred (1) by sustaining the State’s objection to
Carmen’s testimony regarding the victim visa; (2) by not granting his first motion for new trial as
to both counts; and (3) for not granting his second motion for new trial as to count II.
Santos also assigns his trial counsel was ineffective by (1) failing to properly investigate
and discover evidence regarding Alma and Carmen’s victim visas; (2) failing to depose two of
Sarai’s children prior to trial; and (3) not filing a motion to sever the charges against him.
IV. STANDARD OF REVIEW
Where the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. [CITATION].
An appellate court applies a de novo standard when reviewing a trial court’s dismissal of a
motion for new trial without conducting an evidentiary hearing, but it applies an abuse of discretion
standard of review to appeals from motions for new trial denied after an evidentiary hearing. [CITATION]. An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. [CITATION].
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. [CITATION]. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are sufficient to conclusively determine whether
[SEGMENT 15]
counsel did or did not provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. Id.
V. ANALYSIS
. OBJECTION TO CARMEN’S TESTIMONY REGARDING VICTIM VISAS
Santos first assigns the district court erred in sustaining the State’s “[b]eyond the scope”
objection to Santos asking Carmen whether she knew what a victim visa was. Santos argues that
Carmen’s knowledge about victim visas was relevant and should have been allowed. He essentially
contends that if she had answered the question affirmatively, he would have been better able to
argue that Alma and Carmen conspired against him to secure victim visas.
Pursuant to Neb. Rev. Stat. § 27-103(1)(b) (Reissue 2016), Neb. Evid. R. 103(1)(b), error
may not be predicated upon a ruling which excludes evidence unless a substantial right of the party
is affected, and the substance of the evidence was made known to the judge by offer or was
apparent from the context within which questions were asked. [CITATION]. Therefore, to predicate error upon a ruling of the court refusing to permit
a witness to testify, or to answer a specific question, the record must show an offer to prove the
facts sought to be elicited. Id. The offer need not be a detailed recitation of the excluded testimony
but must be enough to provide the general nature of the testimony so that an appellate court can
properly review its effect. [CITATION].
Santos made no offer of proof concerning Carmen’s proposed testimony. This is not
surprising given his second motion for new trial where he asserted that the evidence pertaining to
Carmen’s victim visa had not been disclosed. However, despite this unique situation, it remains
that no one knows how Carmen would have answered the question if she had been allowed to
respond. Therefore, without an offer of proof, we determine this assignment of error fails.
But even if we presumed the district court erred in sustaining the objection and that a
truthful response from Carmen would have indicated that she knew what a victim visa was, we
determine any error by the district court in excluding this testimony was harmless. Harmless error
exists when there is some incorrect conduct by the trial court which, on review of the entire record,
did not materially influence the jury in reaching a verdict adverse to a substantial right of the
defendant. [CITATION].
In his appellate brief, Santos asserts that regardless of Carmen’s answer to the question,
the line of inquiry would have likely ceased. Therefore, even if Carmen had responded that she
knew what a victim visa was, the only evidence pertaining to victim visas would have been
Carmen’s response and Alma’s testimony that she did not know what they were. Accordingly, the
record would not have contained any evidence as to what a victim visa was, who was eligible for
one, or what the process was to obtain one. With this, even when assuming Carmen would have
answered yes to the question, we cannot say that her knowing what a victim visa was, without any
other evidence, would have provided Santos a stronger defense that materially altered the jury’s
verdict.
We conclude that without an offer of proof, this assignment of error fails. However, even
if we assumed the district court erred in excluding a potential affirmative response by Carmen, that
error was harmless.
2. FIRST MOTION FOR NEW TRIAL
Santos next assigns the district court erred in partially denying his motion for new trial and
not vacating his conviction on count II. As there was an evidentiary hearing on Santos’ motion for
new trial, the applicable standard of review is whether the district court abused its discretion in
partially denying the motion. See [CITATION].
In the district court’s order on Santos’ motion, it analyzed whether Santos’ rights were
violated under [CITATION] or [CITATION]. In [CITATION], the U.S. Supreme Court held that the knowing use of false testimony by a prosecutor in a criminal
case violates the defendant’s right to due process. And in [CITATION], it held that the prosecution has a
duty to disclose all favorable evidence to a criminal defendant prior to trial.
In upholding Santos’ conviction on count II, the district court found his rights were not
violated under [CITATION] or [CITATION]. The district court explained that while the State’s failure to correct
Alma’s false testimony constituted prosecutorial misconduct under [CITATION] and prejudiced his
conviction on count I, it did not prejudice his conviction on count II. In coming to this conclusion,
the court determined the perjured testimony did not undercut “the credibility of witnesses whose
testimony form[ed] the bases of his conviction.” Therefore, it concluded the evidence did not
prejudice Santos’ conviction on count II and therefore did not violate his rights under [CITATION] or
[CITATION].
On appeal, it appears Santos only takes issue with the district court’s finding that the State’s
misconduct did not constitute a [CITATION] violation. There are three primary components of a [CITATION]
violation. [CITATION]. First, the evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is impeaching. Id.
Second, the State must have suppressed the evidence, either willfully or inadvertently. Id. Third,
prejudice from the suppression must have ensued. Id.
Santos asserts that the undisclosed evidence of Alma’s victim visa application prejudiced
him because that evidence could have been used to exculpate himself and to impeach Alma’s false
testimony. Under Neb. Rev. Stat. § 29-1912 (Cum. Supp. 2022), Nebraska’s primary discovery
statute in criminal cases, whether a prosecutor’s failure to disclose evidence results in prejudice
depends on whether the information sought is material to the preparation of the defense, meaning
that there is a strong indication that such information will play an important role in uncovering
admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting
impeachment or rebuttal.
We determine the district court did not abuse its discretion in finding that the State’s failure
to disclose evidence of Alma’s visa application did not prejudice Santos’ conviction on count II
under [CITATION]. We come to this conclusion because Alma was not related to that allegation of sexual
assault.
Count II dealt with the allegation that Santos sexually assaulted H.B.P. The record reflects
that the evidence supporting Santos’ conviction for sexually assaulting H.B.P. did not come from
Alma or her children. The only time Alma testified about H.B.P.’s assault was when she explained
that Sarai had told her about it previously and that she had informed someone at Project Harmony
about it when she took A.P. there for his forensic interview. And while A.P. originally testified
that he witnessed H.B.P. being abused, he retracted that statement on cross-examination.
The evidence that supported Santos’ conviction on count II was not impacted by the
revelation of Alma’s visa application. The overwhelming majority of the supporting evidence
came from the detective who transported H.B.P. to Project Harmony and observed his interview,
the forensic interviewer who conducted his interview, the mental health practitioner who worked
with him following his disclosure, the nurse practitioner who conducted his medical examination,
Carmen, and H.B.P.’s own testimony. While evidence of Alma’s visa application may have been
used to impeach her and A.P., it would not have had any meaningful impact on the testimonies of
those who provided most of the evidence regarding H.B.P.’s abuse. As such, we believe the district
court’s decision that Santos was not prejudiced by the undisclosed evidence of Alma’s application
was not clearly untenable or unreasonable. Therefore, we conclude that the district court did not
abuse its discretion in denying Santos’ first motion for new trial as to count II.
. SECOND MOTION FOR NEW TRIAL
Santos next assigns the district court abused its discretion by denying his second motion
for new trial. Santos filed his second motion for new trial after discovering information that
Carmen had a pending victim visa application while his trial ensued.
In denying the motion, the district court essentially found that Santos was unable to
demonstrate prosecutorial misconduct because there was no evidence that the prosecutors or any
law enforcement officer connected to the case was aware of the visa application. It then found that
Santos was unable to prove any of the three Brady elements because Carmen’s application was
already filed prior to trial and had “nothing whatsoever” to do with Santos or any alleged motive
by Carmen to testify against him. As such, it determined the evidence had “no perceivable
impeachment value.” More so, the court explained in great detail how evidence of Carmen’s
application was not material because the record contained substantial evidence supporting Santos’
conviction on count II. Even further, the court found that with reasonable diligence, Santos could
have discovered the evidence on his own.
In Santos’ argument he blends two related, but different, propositions of law. He contends
that while the district court found that Carmen’s visa application had no impeachment value under
Brady, it failed to include any discussion as to whether the evidence was exculpatory. He asserts
that when viewing Carmen’s visa application in this light, the Brady elements are met because the
evidence helps prove his theory that Alma and Carmen conspired to falsely accuse him so they
could obtain victim visas. Intertwined in this argument, he also vaguely asserts that Carmen’s visa
application constituted newly discovered evidence that was so substantial that a different result
might have occurred it if was previously discovered. We reject both arguments.
As stated earlier, there are three primary components of a Brady violation. [CITATION].
First, the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching. [CITATION]. Second, the State must have suppressed the evidence, either willfully or inadvertently. [CITATION]. Third, prejudice from the
suppression must have ensued. [CITATION].
Separately, Neb. Rev. Stat. § 29-2101 (Reissue 2016) allows for a new trial upon the
discovery of new material evidence. To obtain a new trial based on newly discovered evidence, a
[SEGMENT 16]
defendant must show that the new evidence could not with reasonable diligence have been
discovered and produced at trial. [CITATION]. Additionally, the defendant must show the evidence is so substantial that a different result may
have occurred. Id. In other words, the defendant must show that if the evidence had been admitted
at the former trial, it probably would have produced a substantially different result. Id.
We determine the district court did not abuse its discretion in denying Santos’ second
motion for new trial. The evidence of Carmen’s victim visa was neither prejudicial to Santos’
conviction for count II under Brady’s third element nor was it newly discovered evidence that was
so substantial that, if it had been known about at trial, it would have changed the outcome of the
proceedings.
We come to these conclusions because the evidence that Carmen had applied for a victim
visa in relation to a separate incident involving a different defendant, a different victim, and
different allegations would not have provided the exculpatory evidence Santos asserts. While the
evidence might have shown that Carmen was aware of the victim visa process, it did not provide
any motive for her to conspire against Santos with Alma to obtain immigration benefits. In fact,
evidence of Carmen’s completed victim visa application would have had more value to counter
Santos’ main theory of defense than to discredit Carmen and H.B.P.’s testimonies. It would have
shown that Carmen had already done everything to obtain a victim visa and put into question why
she needed to falsely accuse Santos to get one when she already had an application pending. We
therefore conclude the district court did not abuse its discretion in denying Santos’ second motion
for new trial.
. INEFFECTIVE ASSISTANCE OF COUNSEL
Santos next assigns his trial counsel was ineffective for (1) failing to properly investigate
and discover evidence regarding Alma and Carmen’s victim visas; (2) failing to depose two of
Sarai’s children; and (3) not filing a motion to sever the separate charges against him.
When a defendant’s trial counsel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is
known to the defendant or is apparent from the record; otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding. [CITATION]. The fact that an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. Id. The determining factor is whether the record is
sufficient to adequately review the question. Id.
To prevail on a claim of ineffective assistance of counsel under [CITATION], the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. [CITATION]. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a lawyer with ordinary training
and skill in criminal law. Id. To show prejudice under the prejudice component of the [CITATION]
test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s
deficient performance, the result of the proceeding would have been different. [CITATION].
A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
(a) Failure to Discover Alma and Carmen’s Visa Applications
Santos assigns his trial counsel was ineffective for failing to properly investigate and
discover evidence of Alma and Carmen’s victim visa applications prior to trial.
We determine the record is sufficient to resolve this claim on direct appeal and conclude
that Santos did not suffer prejudice from his trial counsel failing to discover Alma and Carmen’s
victim visa applications. We first note that when analyzing whether Santos was prejudiced by the
alleged failures of his trial counsel, we only look to his conviction on count II. Because Santos
was acquitted of count III and his conviction on count I was vacated and the renewed charge was
later dismissed by the State, count II is all that remains and, therefore, is the only conviction that
he could have suffered prejudice in relation to.
With this framework, we conclude that Santos’ trial counsel failing to discover evidence
of Alma’s visa application did not prejudice him because this evidence would not have affected
the vast majority of evidence that supported his conviction on count II. Even if Santos possessed
evidence of Alma’s application at trial and used that information to successfully impeach Alma
and A.P., there still would have been substantial evidence to support Santos’ conviction. Therefore,
we cannot say that there was a reasonable probability that but for Santos’ counsel failing to
discover Alma’s visa application, the result of the proceeding would have been different.
Similarly, we determine Santos’ trial counsel failing to discover evidence of Carmen’s visa
application did not prejudice his conviction. As discussed, because Carmen’s visa application had
been finalized prior to the start of the trial, its existence provided little to no value to Santos’
defense. While Santos argues that prior knowledge of Carmen’s application would have allowed
him to ask more pointed questions concerning her visa, he fails to provide any details as to how
that would have benefited him. Therefore, we determine there was not a reasonable probability
that but for Santos’ counsel’s failing to discover Carmen’s visa application, the result of the
proceeding would have been different.
(b) Failure to Depose Witnesses
Santos next argues that his trial counsel was ineffective for failing to depose two of Sarai’s
children, K.A. and R.A., who lived in Alma’s house around the time of A.P.’s sexual abuse. He
essentially asserts that because these children lived in the same home as A.P. when he was abused
and were not called by the State as witnesses, their testimony would have provided exculpatory
evidence that the abuse did not occur.
We determine the record is sufficient to resolve this issue on direct appeal. Beyond the
flaws in Santos’ argument that two children never seeing abuse, which was alleged to have
occurred in the middle of the night, equates to that abuse not occurring, Santos’ claim fails because
K.A. and R.A. did not live with H.B.P. at the time of his abuse. The evidence showed that Santos
abused H.B.P. prior to his family living with Alma, Sarai, and their children. Because the evidence
demonstrated that H.B.P.’s abuse did not occur while he was living with K.A. and R.A., their
testimony would not have provided any insight as to whether Santos sexually assaulted H.B.P.
Accordingly, Santos’ trial counsel was not deficient in failing to depose K.A. and R.A. and Santos
did not suffer any prejudice as a result.
- 10 - (c) Failure to Sever Counts
Santos next assigns his trial counsel was ineffective for failing to file a motion to sever the
three counts.
There is no constitutional right to a separate trial. [CITATION]. Instead, the joinder or separation of charges for trial is governed by Neb. Rev. Stat.
§ 29-2002 (Reissue 2016). Summarized, whether offenses were properly joined under § 29-2002
involves a two-stage analysis: (1) whether the offenses were sufficiently related so as to be joinable
and (2) whether the joinder was prejudicial to the defendant. [CITATION]. Joined charges
do not usually result in prejudice if the evidence is sufficiently simple and distinct for the jury to
easily separate evidence of the charges during deliberations. [CITATION]. Prejudice from joinder cannot be shown if evidence of one charge would have
been admissible in a separate trial of another charge. [CITATION]. There is a strong presumption against
severing properly joined counts. [CITATION].
Santos asserts the State’s evidence was not sufficiently simple and the charges were not
adequately connected to warrant a joint trial. He then essentially contends his counsel’s failure to
sever the charges prejudiced him because the cumulative effect of the jury hearing that he had
committed multiple sexual assaults unfairly prejudiced the jury against him. As such, Santos
asserts that if the State had been unable to present evidence of him committing multiple assaults,
the jury could have come to a different conclusion.
The State asserts Santos did not suffer prejudice as a result of his charges being tried
together because the evidence of each assault would have been admissible in separate trials
pursuant to Neb. Rev. Stat. § 27-414 (Reissue 2016). Section 27-414(1) provides:
In a criminal case in which the accused is accused of an offense of sexual assault, evidence
of the accused’s commission of another offense or offenses of sexual assault is admissible
if there is clear and convincing evidence otherwise admissible under the Nebraska
Evidence Rules that the accused committed the other offense or offenses.
Thus, under § 27-414, assuming that notice and hearing requirements are met and the evidence
survives a more-probative-than-prejudicial balancing test, evidence of prior sexual assaults are
admissible if proved by clear and convincing evidence. [CITATION]. Clear and convincing evidence means that amount of evidence which
produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.
[CITATION].
We determine the record is sufficient to review this question on direct appeal. We begin by
analyzing whether count I and count II were properly joined and then analyze whether it was proper
to also join count III.
We determine that Santos did not suffer prejudice as a result of count I and count II being
tried together because evidence of each assault would have been admissible in separate trials.
Based on our review of the evidence produced at trial, we believe evidence of each sexual assault
would have been admissible under § 27-414 because the evidence would have supported a finding
that Santos committed both sexual assaults by a clear and convincing standard.
[SEGMENT 17]
- 11 - The evidence supporting A.P.’s sexual assault came primarily from his own account. He
testified about the timeline of Santos living in his house and where he slept while he stayed there.
He provided a detailed account of the abuse and identified Santos as the perpetrator. He described
that Santos woke him up in the middle of the night, relocated him to the living room where Santos
slept, and had him take off his shorts. He further recalled that Santos took off his own shorts, told
him to get on his knees, and then commanded him to perform oral sex on him before anally
penetrating him. A.P. was able to describe Santos’ hands on his head, the positions of their bodies
during the incident, how Santos thrusted back and forth, his own in-time reaction to feeling pain
and crying, and Santos ejaculating into his mouth.
Similarly, much of the evidence supporting H.B.P.’s sexual assault came from his specific
recollection of the abuse. H.B.P. recalled what grade he was in when the abuse occurred, the
location of the house it occurred in, the fact it occurred in the basement, the position of their bodies
while it happened, how Santos’ body moved, and that Santos told him not to tell his mother
afterward. He also identified Santos as his abuser during his forensic interview and at trial.
Additionally, H.B.P. provided a similar account to the nurse practitioner that medically
examined him. He told her that “Mario” had touched the inside of his butt with his private when
he was 5 years old. Further, the therapist who worked with H.B.P. following his disclosure
indicated that he exhibited symptoms of a child who had suffered abuse. She described how H.B.P.
would have flashbacks, felt nervous, and often became inconsolably sad. She also explained how
he displayed certain regressive behaviors, such as accidents at night and anxiety of going to the
bathroom by himself. With these behaviors, she diagnosed H.B.P. with post-traumatic stress
disorder and commented on how difficult it was for him to disclose his trauma.
Further, there was no indication that A.P. and H.B.P. talked to one another about their
abuse or that they were influenced by anyone to make their disclosures. Their accounts display
similar details of Santos targeting young boys with whom he was residing and assaulting them in
the middle of the night. Because the State would have been able to prove that these sexual assaults
occurred by clear and convincing evidence, evidence of each assault would have been admissible
at both trials pursuant to § 27-414 if count I and II were tried separately. Therefore, Santos is
unable to show that he was prejudiced by the joinder of these charges.
For count III, we do not need to consider whether the evidence of Santos’ alleged sexual
assault of Alma would have been admissible in separate trials. We determine the evidence
supporting count III was simple and distinct enough from the evidence of the other offenses for
the jury to separate the charges and associated evidence.
As described, count I and count II involved allegations that Santos sexually assaulted
young boys in the middle of the night by coercing them into sexual acts. Those accounts came
from the children themselves, along with various professionals who worked with H.B.P. In
contrast, count III involved an allegation that Santos sexually assaulted an unconscious adult
woman in front of her child who was tied to a chair. As the facts involved are disparate, we believe
the jury could easily separate evidence of these charges during deliberations.
And as was demonstrated, the jury finding Santos not guilty on count III indicates that the
jury was, in fact, able to consider each count individually. The Nebraska Supreme Court has
repeatedly signaled that when a defendant is found guilty on some charges, but not guilty on others,
the defendant cannot show the joinder of the charges prejudiced them because the jury
- 12 -
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-boppre', which should be replaced with `[CITATION]`. demonstrated that it was able to consider the counts individually. See [CITATION]. See, also, [CITATION]. We therefore determine Santos did not suffer prejudice by the joinder of count III with counts I and II.
VI. CONCLUSION
We conclude the district court did not abuse its discretion in sustaining the State’s objection
regarding Carmen’s knowledge of victim visas because Santos did not make an offer of proof. The
district court also did not abuse its discretion in denying Santos’ motions for new trial as to count
II because Santos was not prejudiced by Alma’s perjured testimony and the nondisclosure of her
and Carmen’s visa applications.
AFFIRMED.
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[CITATION]
an incapacitated person.
Becky S., appellee, v.
Patrick W., appellant.
___ N.W.3d ___
Filed April 19, 2024. No. S-23-209.
. Estates: Judgments: Appeal and Error. An appellate court reviews
probate cases for error appearing on the record made in the county court.
When reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
. Decedents’ Estates: Appeal and Error. An appellate court, in review-
ing a probate court judgment for errors appearing on the record, will
not substitute its factual findings for those of the probate court where
competent evidence supports those findings.
. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit evi-
dence over a hearsay objection or exclude evidence on hearsay grounds.
. Appeal and Error. In a de novo review, an appellate court reaches a
conclusion independent of the trial court.
. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the statute’s language. Nor is it within
the province of a court to read anything plain, direct, or unambiguous
out of a statute. - 382 -
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IN RE GUARDIANSHIP OF PATRICK W.
Cite as 316 Neb. 381
8. Statutes: Words and Phrases. Words and phrases in a statute shall be
construed and understood according to the common and approved usage
of the language; but technical words and phrases and such others as
may have acquired a peculiar and appropriate meaning in the law shall
be construed and understood according to such peculiar and appropri-
ate meaning.
9. Statutes. A court must give effect to all parts of a statute, and if it can
be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
10. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
11. Statutes. When possible, a court will try to avoid a statutory construc-
tion that would lead to an absurd result.
12. ____. To the extent there is a conflict between two statutes, the specific
statute controls over the general statute.
13. Guardians and Conservators: Guardians Ad Litem: Evidence. In
guardianship proceedings, the information specifically described in the
first sentence of Neb. Rev. Stat. § 30-4204 (Reissue 2016) is admissible
in evidence when the proponent shows such information or material (1)
was obtained by the guardian ad litem informally or by subpoena and (2)
is regarding the person for whom the guardian ad litem was appointed.
14. Appeal and Error. Conclusory assertions unsupported by coherent ana-
lytical argument fail to satisfy the requirement that an appellant’s brief
must both specifically assign and specifically argue errors.
Appeal from the County Court for Saunders County:
Andrew R. Lange, Judge. Affirmed.
Adaline K. Baker for appellant.
Heather S. Colton, of Pollack & Ball, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Patrick W. appeals from an order of the county court finding
him to be incapacitated and appointing a permanent guard-
ian. He assigns error to the admission of an exhibit over his - 383 -
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[CITATION]
[SEGMENT 18]
hearsay objection, and he argues that without that exhibit,
the evidence was insufficient to show he is incapacitated. We
affirm the county court’s order.
I. BACKGROUND
In 2009, Patrick suffered a stroke at the age of 32. In
2014 or 2015, Adult Protective Services (APS), a division
of the Nebraska Department of Health and Human Services,
opened an investigation due to concerns about Patrick’s medi-
cal needs and financial management. After working with him
for several years, an APS caseworker was concerned that
Patrick was vulnerable to financial exploitation, self-neglect,
and undue influence. The APS caseworker contacted an attor-
ney to inquire about establishing a guardianship, and Becky
Stamp was identified as someone who was willing to serve as
Patrick’s guardian.
. Petition for Guardianship
In 2022, Stamp filed a verified petition in the county court
for Saunders County seeking to be appointed as Patrick’s
temporary and permanent guardian. The petition alleged that
Patrick was incapacitated due to a stroke and that he lacked
sufficient understanding or capacity to make or communicate
responsible decisions concerning his person and property. 1
The court appointed Stamp to serve as Patrick’s temporary
guardian. A few months later, Patrick moved to substitute his
cousin, Terry Crandall, as his temporary guardian, and the
court granted that motion. The court also appointed an attor-
ney to serve as Patrick’s guardian ad litem (GAL) and ordered
Patrick to undergo a neuropsychological evaluation at a reha-
bilitation hospital.
In October 2022, the neuropsychological evaluation was
completed, and a written report was prepared. The admissibil-
ity of that report is the primary issue on appeal.
1
[CITATION] - 384 -
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IN RE GUARDIANSHIP OF PATRICK W.
Cite as [CITATION]
. Guardianship Hearing
An evidentiary hearing on the guardianship petition was
held in January 2023. Stamp and Patrick both appeared for
the hearing with counsel, and Patrick’s GAL was also pres-
ent. The county court received several exhibits into evidence
and heard testimony from six witnesses, including Patrick. As
relevant to the issues on appeal, we summarize the witness
testimony and discuss two of the hearing exhibits.
(a) GAL Report
The GAL did not testify at the hearing, but her report
was admitted into evidence without objection after the par-
ties agreed to redact certain statements within it. The GAL’s
report recommended a full guardianship based on her opinion
that without assistance, Patrick was not able to maintain safe
and appropriate independent housing, arrange for his medical
care and comply with medical instructions, protect his per-
sonal effects, apply for governmental benefits to which he may
be entitled, or independently receive and manage his money
and property.
The GAL described her personal observations that Patrick
struggled to follow a consistent timeline and had difficulty
answering questions and accurately recalling information and
events. The GAL also expressed concern that Patrick would
not talk or meet with her unless his roommate and landlord,
Rodney Volker, was also present. The GAL noted that Patrick
allowed Volker to speak for him and that Patrick appeared
susceptible to Volker’s influence.
The GAL’s report stated that she had received and reviewed
the neuropsychological evaluation report ordered by the court
and believed the report supported her conclusion that a full
guardianship was appropriate. The GAL’s report quoted sev-
eral statements from the neuropsychological report, includ-
ing that Patrick’s diagnosis was “Major Neurocognitive
Disorder” and that Patrick’s neurological testing revealed
“significant global impairment, including in the domains of - 385 -
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IN RE GUARDIANSHIP OF PATRICK W.
Cite as [CITATION]
attention/processing speed, language, memory, visuospa-
tial functioning, and executive functioning” and “significant
expressive aphasia.”
(b) Neuropsychological Report
At the start of the guardianship hearing, Patrick’s counsel
moved in limine to exclude the neuropsychological report as
inadmissible hearsay. In response, Stamp argued the report was
admissible under Neb. Rev. Stat. § 30-4204 (Reissue 2016),
which provides, in relevant part:
The guardian ad litem may obtain, informally or by
subpoena, the following information regarding the per-
son for whom the guardian ad litem has been appointed:
(1) A report from any medical provider [or] provider of
psychological services . . . . Any material obtained by a
guardian ad litem pursuant to this section is admissible
in evidence.
The county court overruled Patrick’s motion in limine.
Later during the hearing, Patrick’s counsel renewed the
hearsay objection when Stamp offered the neuropsychological
report as an exhibit. Counsel argued that despite the admis-
sibility provision in § 30-4204, “the rules of evidence still
apply,” and counsel asked the court to exclude the report
because it contained inadmissible hearsay. Stamp disagreed
and reiterated her position that the report was admissible in
evidence under the plain language of § 30-4204 because it
was a medical or psychological report obtained by the GAL
regarding the person for whom she was appointed. Before
ruling on the objection, the court took a short recess for
the stated purpose of giving the parties an opportunity to
consult and agree to redactions of the neuropsychological
report. After conferring, the parties advised the court they
could not reach an agreement; the court overruled the hearsay
objection and received the entire neuropsychological report
into evidence.
As relevant to the issues on appeal, the neuropsychological
report concluded that Patrick met the criteria for a diagnosis - 386 -
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IN RE GUARDIANSHIP OF PATRICK W.
[CITATION]
of “Major Neurocognitive Disorder Due to Another Medical
Condition (history of a stroke), with Behavioral Disturbance.”
The report also described that Patrick has “expressive apha-
sia” and struggles significantly to convey his thoughts, noting
that during the neuropsychological evaluation, Patrick spoke
very little, and when he did speak, the evaluator had diffi-
culty understanding him. The report indicated that Patrick’s
neuropsychological testing revealed significant global impair-
ment in the domains of attention/processing speed, language,
memory, visuospatial functioning, and executive functioning.
In the evaluator’s clinical judgment, Patrick’s poor judgment
and insight placed him at a “significantly increased risk”
of emotional, financial, sexual, and other exploitation and
manipulation. The neuropsychological report concluded:
Due to his current level of functioning, it is the clini-
cal judgment of this provider that [Patrick] would best
be served by the assignment of a permanent guardian to
ensure facilitation of safe decision-making and to procure
for ongoing needs. I can say with a reasonable degree of
certainty that these deficits are unlikely to improve to the
point where he would not need this level of support, given
that it has been over 10 years since his stroke.
(c) Witness Testimony
(i) Stamp’s Case in Chief
During Stamp’s case in chief, three witnesses were called to
testify. The APS caseworker testified about her history working
with Patrick and her concern that his cognitive deficits caused
him to neglect his own care. She also testified about concerns
that Patrick was being financially exploited by Volker.
Stamp testified that she too was concerned about Volker’s
financial influence on Patrick, explaining that during the time
she served as Patrick’s temporary guardian, Volker “always
called and asked for money. Never Patrick.” Stamp also testi-
fied that she was concerned about Patrick’s ability to maintain
eligibility for Medicaid benefits without a guardian. - 387 -
Nebraska Supreme Court Advance Sheets
[CITATION]
IN RE GUARDIANSHIP OF PATRICK W.
Cite as [CITATION]
Crandall testified that while she served as Patrick’s tempo-
rary guardian, it was challenging to assess Patrick’s well-being
because Volker was always present when she tried to talk with
Patrick and Volker would influence the discussion. Crandall
testified that Patrick would answer the telephone when she
called but that “within the next minute or so, [Volker] is on the
phone telling me what I will or what I will not do.” She also
testified that there were instances where Volker had texted her
from Patrick’s cell phone posing as Patrick. Crandall testified
that she had known Patrick since he was 18 years old, and
based on her interactions with him since 2022, she believed he
needed a permanent guardianship.
(ii) Patrick’s Case in Chief
During Patrick’s case in chief, three witnesses were called
to testify. Patrick testified on his own behalf. He generally
opposed establishing a guardianship, explaining it was not
something he needed. Patrick testified that Volker “helps
[him] a lot” and that Volker is “a good accountant.” Some of
Patrick’s testimony was difficult to follow and not responsive
to the question being asked. For instance, when asked why he
objected to the guardianship, Patrick stated:
Guardianship? Because it’s in — I do — I wake up,
I go and take my meds, go to transportation, go to
Walmart, groceries, back home, whatever — in and out.
The kitchen, check the mail, and that’s it. So either — I
don’t know, there’s nothing else. I mean, there’s making
other friends, like making friends. I like it, so.
A witness, who described herself as a mutual friend of
Patrick’s and Volker’s, testified that she had known Patrick
for 2 or 3 years and had seen no evidence that Patrick could
be taken advantage of in his current living situation. She testi-
fied that although Patrick was slow to answer questions, she
thought his answers were appropriate. She also thought that
since moving in with Volker, Patrick looked healthier and
seemed happier than he was previously. - 388 -
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[SEGMENT 19]
Nebraska Reports
IN RE GUARDIANSHIP OF PATRICK W.
Cite as 316 Neb. 381
Volker testified that he had known Patrick for more than a
decade and reconnected with him in 2021. When they recon-
nected, Volker observed Patrick to be “[w]orse than home-
less,” and “[h]e was nothing like he is today.” Volker testi-
fied that Patrick does his own cooking, laundry, bedsheets,
and vacuuming. Volker transported Patrick to appointments,
to the grocery store, and to visit Patrick’s stepmother, and
Patrick paid Volker for gas. Volker expressed concerns about
Patrick’s ability to access funds if Crandall were to become
his permanent guardian. Volker admitted to interfering with
Patrick’s conversations with Crandall, but he did not think
Patrick needed a guardian because “he’s just as normal as
anybody else.”
At the close of the evidence, the court took the matter under
advisement and requested written closing arguments.
. County Court Order
In an order entered February 15, 2023, the court found clear
and convincing evidence that Patrick was incapacitated. The
court determined that a full guardianship was the least restric-
tive alternative available and appointed Crandall to serve as
Patrick’s permanent guardian. Patrick filed this timely appeal,
which we moved to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Patrick assigns, restated, that the county court erred in (1)
receiving the neuropsychological report into evidence over his
hearsay objection and (2) finding that he is incapacitated and
that a full guardianship is the least restrictive means available
to provide for his continuing care.
III. STANDARD OF REVIEW
[1] An appellate court reviews probate cases for error
appearing on the record made in the county court. 2 When
reviewing a judgment for errors appearing on the record, the
2
[CITATION] - 389 -
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Nebraska Reports
IN RE GUARDIANSHIP OF PATRICK W.
Cite as 316 Neb. 381
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. 3
[2] An appellate court, in reviewing a probate court judg-
ment for errors appearing on the record, will not substitute its
factual findings for those of the probate court where competent
evidence supports those findings. 4
[3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. 5
[4,5] Apart from rulings under the residual hearsay excep-
tion, an appellate court reviews for clear error the factual find-
ings underpinning a trial court’s hearsay ruling and reviews
de novo the court’s ultimate determination to admit evidence
over a hearsay objection or exclude evidence on hearsay
grounds. 6 In a de novo review, an appellate court reaches a
conclusion independent of the trial court. 7
IV. ANALYSIS
. Admissibility of Materials Obtained
Pursuant to § 30-4204
The primary issue on appeal is the admissibility of informa-
tion and material obtained by a GAL pursuant to § 30-4204.
That statute provides in full:
The guardian ad litem may obtain, informally or by
subpoena, the following information regarding the per-
son for whom the guardian ad litem has been appointed:
(1) A report from any medical provider, provider of
psychological services, law enforcement, [APS] agency,
or financial institution; and (2) any account or record of
3
[CITATION] - 390 -
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Nebraska Reports
IN RE GUARDIANSHIP OF PATRICK W.
Cite as 316 Neb. 381
any business, corporation, partnership, or other business
entity which such person owns or in which such person
has an interest. Any material obtained by a [GAL] pursu-
ant to this section is admissible in evidence. 8
Patrick does not dispute that the neuropsychological report
at issue pertained to him, nor does he dispute that it is prop-
erly characterized as “[a] report from any medical provider
[or] provider of psychological services” within the meaning of
§ 30-4204. And although Patrick argues there was no evidence
the GAL obtained the neuropsychological report pursuant to
§ 30-4204, the record refutes that argument because the GAL’s
report, which was admitted into evidence without objection,
plainly lists the neuropsychological report as one of the reports
obtained by the GAL as part of her investigation.
As such, the only disputed issue regarding § 30-4204 is the
proper interpretation of the final sentence, which provides:
“Any material obtained by a [GAL] pursuant to this section
is admissible in evidence.” To address this issue, we begin by
reviewing the familiar rules of statutory construction that guide
our analysis.
[6-8] In construing a statute, a court must determine and
give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered
in its plain, ordinary, and popular sense. 9 It is not within the
province of a court to read a meaning into a statute that is not
warranted by the statute’s language. 10 Nor is it within the prov-
ince of a court to read anything plain, direct, or unambiguous
out of a statute. 11 Words and phrases in a statute “shall be con-
strued and understood according to the common and approved
8
§ 30-4204 (emphasis supplied).
9
[CITATION]
10
See id.
11
See id. - 391 -
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usage of the language; but technical words and phrases and
such others as may have acquired a peculiar and appropriate
meaning in the law shall be construed and understood accord-
ing to such peculiar and appropriate meaning.” 12
[9-12] A court must give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be
rejected as superfluous or meaningless. 13 Components of a
series or collection of statutes pertaining to a certain subject
matter are in pari materia and should be conjunctively consid-
ered and construed to determine the intent of the Legislature,
so that different provisions are consistent, harmonious, and
sensible. 14 When possible, a court will try to avoid a statutory
construction that would lead to an absurd result. 15 To the extent
there is a conflict between two statutes, the specific statute
controls over the general statute. 16
With these principles in mind, we turn to the arguments of
the parties.
(a) Arguments of Parties
Patrick argues that courts should not construe the last sen-
tence of § 30-4204 to preclude applicability of the Nebraska
Evidence Rules and, in particular, the hearsay rules when
determining the admissibility of information and materials
obtained by a GAL. Patrick urges us to construe the phrase
“admissible in evidence” to mean “anything admissible under
the court’s Rules of Evidence.” 17
Stamp disagrees. At oral argument before this court, Stamp’s
counsel argued that the plain and ordinary meaning of the
12
Neb. Rev. Stat. § 49-802(5) (Reissue 2021).
13
[CITATION]
17
Brief for appellant at 11. - 392 -
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statutory phrase “admissible in evidence” means “proper to
be received” in evidence. She generally described the admis-
sibility provision in § 30-4204 as a “carve out” to the rules of
evidence, and she argued that when the conditions of the stat-
ute are met, the materials specifically described in § 30-4204
can properly be admitted into evidence over a hearsay objec-
tion. To support this argument, Stamp’s appellate brief gen-
erally relies on our 2022 opinion in [CITATION]
The issue in [CITATION] was the admis-
sibility of a GAL’s written report. That report was 8 pages
long and included as an attachment approximately 80 pages
of material the GAL had obtained pursuant to § 30-4204.
When the petitioner offered the GAL’s report with attach-
ments, the court sustained the respondent’s hearsay objections
and refused to receive the exhibit into evidence. The petitioner
tried several more times to offer the exhibit without success,
but at no time did she attempt to separately offer only the
materials obtained pursuant to § 30-4204. On appeal, the peti-
tioner argued the court erred in failing to admit the entire GAL
report under § 30-4204.
We found no error in that case, reasoning that the plain
terms of the admissibility provision in § 30-4204 referenced
only the materials a GAL is empowered to obtain as part of
his or her investigation and “does not pertain to a report cre-
ated by a GAL.” [CITATION] We noted that GAL reports are governed by
a separate statute that, unlike § 30-4204, contains no provision
governing admissibility. [CITATION] The opinion in [CITATION] emphasized that it is “the proponent’s responsibility
to separate the admissible and inadmissible parts” of an exhibit
and noted that “[w]hen part of an exhibit is inadmissible, a
[CITATION] - 393 -
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[SEGMENT 20]
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IN RE GUARDIANSHIP OF PATRICK W.
Cite as 316 Neb. 381
trial court has discretion to reject the exhibit entirely or to
admit the admissible portion.” 21 Because the petitioner in [CITATION] had not separately offered just the
materials obtained by the GAL pursuant to § 30-4204, we
found no abuse of discretion in refusing to admit the entire
GAL report. And we expressly declined to separately consider
the admissibility of the information and materials obtained by
the GAL pursuant to § 30-4204.
Although our opinion in [CITATION] did
not address whether materials obtained by a GAL pursuant to
§ 30-4204 are admissible over a hearsay objection, we moved
the instant appeal to our docket to address that question. We
turn to it now.
(b) Resolution
Section 30-4204 contains two sentences, and we consider
them both when construing the meaning of the statute. The first
sentence describes several categories of information that GALs
are authorized to obtain, either informally or by subpoena,
regarding the person for whom they have been appointed. And
the second sentence of the statute provides, without further
condition, that “[a]ny material obtained by a guardian ad litem
pursuant to this section is admissible in evidence.” 22
Black’s Law Dictionary defines “admissible” as “[c]apable
of being legally admitted; allowable; permissible,” 23 and it
defines “admissible evidence” as “[e]vidence that is relevant
and is of such a character . . . that the court should receive
it.” 24 We think these common definitions are appropriately
applied to the phrase “admissible in evidence” as it is used
in § 30-4204. As we will explain, in enacting § 30-4204, we
21
[CITATION]
22
§ 30-4204.
23
Black’s Law Dictionary 58 (11th ed. 2019).
24
Id. at 698. - 394 -
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understand the Legislature to have determined that it is “allow-
able” or “permissible” for a court to admit into evidence the
materials specifically described in the statute, but that the
admission of such materials is not mandatory.
We consider it significant that, unlike admissibility provi-
sions found elsewhere in the Nebraska statutes, the admis-
sibility language in § 30-4204 is neither mandatory, 25 nor
expressly conditioned on compliance with the Nebraska
Evidence Rules. 26 Instead, the plain language of § 30-4204
makes the information specifically described in the first sen-
tence of the statute “admissible in evidence” without further
qualification. We see no ambiguity in the phrase “admissible
in evidence,” and we construe it according to its plain lan-
guage and its common usage in the law to mean that courts
are permitted, but not required, to receive such information
into evidence.
As such, although Patrick is correct that the Nebraska
Evidence Rules generally apply in probate proceedings, we
reject his argument that the phrase “admissible in evidence”
in § 30-4204 must be construed to mean otherwise admissible
25
Cf., Neb. Rev. Stat. § 13-2805 (Reissue 2022) (providing “the book
or pamphlet shall be received as evidence”); Neb. Rev. Stat. § 15-735
(Reissue 2022) (providing certified copy “shall be received in evidence as
prima facie evidence of the regularity of all proceedings in the matter”);
Neb. Rev. Stat. § 21-1404 (Reissue 2022) (providing certified copies of
articles of incorporation “shall be received in all the courts of this state
as prima facie evidence of the facts contained therein and of the due
incorporation of such association”).
26
Cf., Neb. Rev. Stat. § 27-402 (Reissue 2016) (providing “[a]ll relevant
evidence is admissible except as otherwise provided by” federal or state
Constitution, federal or state statutes, other rules of evidence, or rules of
Nebraska Supreme Court); Neb. Rev. Stat. § 27-412 (2)(a) (Cum. Supp.
2022) (providing that evidence described in statute “is admissible, if
otherwise admissible under the Nebraska Evidence Rules”); Neb. Rev.
Stat. § 27-1005 (Reissue 2016) (providing that contents of official record
“if otherwise admissible” may be proved through evidence described in
statute). - 395 -
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under the rules of evidence. The construction urged by Patrick
would require that we read qualifying language into the stat-
ute that was not included by the Legislature. Instead, to the
extent the admissibility provision in § 30-4204 conflicts
with the rules of evidence, we conclude that § 30-4204 is
the more specific provision, and thus controls over the more
general statutes. 27
[13] We now hold that in guardianship proceedings, the
information specifically described in the first sentence of
§ 30-4204 is admissible in evidence when the proponent shows
such information or material (1) was obtained by the GAL
informally or by subpoena and (2) is regarding the person for
whom the GAL was appointed.
A trial court’s decision to admit or exclude evidence is
reviewed for an abuse of discretion, 28 and on this record, we
find no abuse of discretion in admitting the neuropsychologi-
cal report pursuant to § 30-4204 over Patrick’s hearsay objec-
tion. In fact, we note that Nebraska’s hearsay rule expressly
contemplates the possibility that “other rules adopted by the
statutes of the State of Nebraska” might render admissible
what would otherwise be considered inadmissible hearsay
under the rules of evidence. 29
The record shows that the neuropsychological report is a
medical or psychological report obtained by the GAL regard-
ing the person for whom she was appointed, and thus fits
squarely within the categories of information identified in
27
[CITATION]
29
Neb. Rev. Stat. § 27-802 (Reissue 2016). See, also, [CITATION] - 396 -
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§ 30-4204. Because the conditions of the statute were met, the
trial court was permitted to admit the report into evidence, and
it did not abuse its discretion in doing so. Patrick’s first assign-
ment of error has no merit.
. Sufficiency of Evidence
[14] Patrick’s second assignment of error is that there was
insufficient evidence adduced to support the county court’s
finding that he is incapacitated and that a full guardianship
is the least restrictive alternative. He argues that “[t]he only
evidence offered showing [he] might have a mental defi-
ciency” was the neuropsychological report. 30 And he contends
that without that report, “there is no evidence that [he has] a
mental deficiency that affects his ability to understand or the
capacity to make or communicate decisions for himself.” 31
Although Patrick’s brief alludes to other alleged deficiencies
in the evidence, we do not discuss them, because conclusory
assertions unsupported by coherent analytical argument fail to
satisfy the requirement that an appellant’s brief must both spe-
cifically assign and specifically argue errors. 32 We therefore
confine our analysis to Patrick’s argument that without the
neuropsychological report, there was insufficient evidence to
support the court’s guardianship.
We reject this argument as meritless. As we have already
explained, it was proper for the court to admit the neuro-
psychological report into evidence. And our review of the
record, including the neuropsychological report, shows ample
evidence to support the court’s finding that Patrick is inca-
pacitated and that a full guardianship is the least restrictive
alternative to provide for his continuing care or supervision. 33
30
Brief for appellant at 15.
31
Id.
32
See, [CITATION].
33
See, generally, Neb. Rev. Stat. § 30-2620 (Reissue 2016). - 397 -
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[CITATION]
The court’s decision conformed to the law, was supported by
competent evidence, and was neither arbitrary, capricious, nor
unreasonable.
V. CONCLUSION
For the foregoing reasons, we affirm the order of the county
court.
Affirmed. It appears that you've asked me to process a part of a court ruling, but the text of the court ruling itself wasn't provided. Please provide the specific text or excerpt from the court ruling that contains the citations for me to assist you in removing and replacing the court ruling citations accurately.
[SEGMENT 21]
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
[CITATION]
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JAMAAL R. ABRAM, APPELLANT.
Filed January 23, 2024. No. A-22-869.
Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.
Affirmed.
Patrick McCormick for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, Chief Judge, and MOORE and BISHOP, Judges.
MOORE, Judge.
I. INTRODUCTION
Jamaal R. Abram appeals from the order of the district court for Douglas County, denying
his motion seeking postconviction relief following an evidentiary hearing. Finding no error, we
affirm.
II. STATEMENT OF FACTS
. CONVICTION AND SENTENCE
The charges in this case stemmed from events occurring in Omaha, Nebraska, in June 2008,
when the victim was at a cemetery visiting the grave of her boyfriend, a cousin of Abram, who
committed suicide approximately a year prior. A portion of the boyfriend’s extended family
believed the victim was somehow to blame for the boyfriend’s death. While at the cemetery, the
victim was confronted by Abram’s brother and three female companions and forced to go with
them. According to the brother, if anyone in the family encountered the victim, they were to take
her to the boyfriend’s mother because the boyfriend’s mother wanted to talk to her. Over the course
of several hours, Abram’s brother drove the victim to various locations, during which time he
spoke to Abram numerous times by cell phone. According to the trial testimony of Abram’s
brother, Abram told him to take the victim from the cemetery and directed him where to go.
Eventually, Abram’s brother received a call from a cousin (the brother of the deceased boyfriend),
who directed Abram’s brother to a particular isolated, dead-end location. Upon arriving, the
brother observed the vehicle of the cousin who had called him; he did not see anyone in the
cousin’s vehicle. After the brother parked, facing the cousin’s vehicle, an individual, dressed in
black, wearing gloves, and with a small revolver, came out of some nearby bushes. Both the brother
and the victim testified at trial that they recognized this individual as Abram. Abram shot the victim
multiple times. He then left the scene with the cousin in the cousin’s vehicle, and the brother left
in his vehicle. The victim survived her life threatening injuries.
In October 2008, the State filed an information in the district court, charging Abram with
attempted first degree murder, use of a deadly weapon in the commission of a felony, and criminal
conspiracy. Following trial, the jury found Abram guilty on all three charges. Abram’s first
attorney (referred to herein as “trial counsel”) withdrew, and a second attorney (referred to herein
as “appellate counsel”) was appointed to represent Abram for sentencing and direct appeal. The
court then sentenced Abram to consecutive prison sentences of 40 to 50 years, 40 to 50 years, and
20 to 30 years on the three convictions. See [CITATION]
. DIRECT APPEAL
Abram, represented by appellate counsel, filed a direct appeal, asserting that there was
insufficient evidence to sustain his convictions for attempted first degree murder and criminal
conspiracy and that he received excessive sentences. This court affirmed Abram’s convictions and
sentences. We also noted that while Abram’s brief included assertions that his trial counsel was
ineffective for failing to object to various jury instructions, no such issue was assigned as error on
appeal. See [CITATION]
. POSTCONVICTION PROCEEDINGS
(a) Postconviction Motion
On May 20, 2014, Abram, through postconviction counsel, filed his operative
postconviction motion. In his first claim, he alleged that he was denied the right to a fair trial in
various ways, including that the trial court made certain errors, that a key witness for the State
perjured himself, and that prosecutorial misconduct occurred when a trial witness was allowed to
perjure himself. In Abram’s second claim, he set forth multiple allegations of ineffective assistance
of trial counsel. Finally, in his third claims, Abram alleged that his appellate counsel was
ineffective for failing to assign as error or argue that he was denied his right to a fair trial pursuant
to the specific allegations of his first claim, failing to assign as error or argue that trial counsel was
ineffective for the reasons specified in his second claim, failing to assign as error that the trial court
presented improper jury instructions, and failing to properly assign errors in his direct appeal brief
that were deemed waived by this court.
Attachments to Abram’s postconviction motion included two letters from Abram’s brother
(one dated August 19, 2011, and the other undated). The August 2011 letter referenced the brother
feeling bad about having done “the unforgivable” to Abram, having dreams of being at Abram’s
trial “snitching,” having “lied on” Abram at his trial, being “brainwashed” by his own attorney,
and being “prepared a million times” before Abram’s trial “so everything would come out just
right,” including having been informed of “what [the victim] said so [the brother’s] lies would
collaborate with hers.”
In the second letter, the brother stated, “Anyway I realize that I made the most [expletive]
decision I ever made in my miserable . . . life by doing what I did and although you say you forgive
me I don’t forgive myself for that.” Later in the second letter, he stated:
Anyway bout that other shit with these lawyers and shit. Really most of it was my lawyer
relaying messages and shit to me about what they was saying. Telling me shit like if I could
give them more people the better off I would be. He used to try and get me to put [two
individuals] in it. He used to come tell me [the victim] said this so you would have to say
the same so your stories would collaborate. He lied and said you was telling on me. Them
[expletives] always used to be in there coaching me reminding me this is what happened
or this is what [the victim] said. I remember @ the trial my lawyer was like this is what the
prosecutor said happened so this is what your [sic] gonna have to say. Bro listen what you
need me to do write an affidavit or something. Just let me know what[’]s up and I will do
it.
He also stated, “Ay [sic] I love you with all my heart and I regret what I did with every second of
every day.”
The third item attached to Abram’s postconviction motion was an affidavit from the mother
of the victim’s deceased boyfriend. In her affidavit, the mother stated that if she had been called
to testify at Abram’s trial, she would have testified that she never spoke with any family member
about bringing the victim to her so they could talk, that she had spoken with the victim on several
occasions after the boyfriend’s death, and that she had the victim’s contact information and could
have contacted her directly if she had wanted to speak with her.
(b) Evidentiary Hearing
An evidentiary hearing was held before the district court on February 6, 2018, and May 28,
2019. The brother and the cousin testified at the hearing. The court also received depositions from
Abram, Abram’s trial and appellate attorneys, and the brother’s trial attorney; affidavits from the
brother and the prosecutor; and copies of the letters from the brother referenced above. We have
set forth details of this evidence as necessary in the analysis section below.
(c) Ruling
On November 1, 2022, the district court entered an order denying Abram’s claims for
postconviction relief. The court identified Abram’s “basic claims” in support of his motion to be
the denial of his right to a fair trial, ineffective assistance of trial and appellate counsel, the perjured
testimony of his brother, and being “[i]nnocent of the [c]rime.” The court found that each of the
issues raised in Abram’s claim to having been denied the right to a fair trial could have been
brought on direct appeal and were thus procedurally barred. Next, the court addressed the issues
raised in Abram’s claims of ineffective assistance of trial counsel and appellate counsel and found
them to be without merit. The court then addressed the issue of the allegedly perjured testimony
of Abram’s brother, who had identified Abram as the shooter at trial, and found no credible
evidence that the State knowingly used perjured testimony to secure Abram’s conviction. The
court specifically found the testimony of Abram’s brother during the evidentiary hearing not
credible. We have set forth further details of the court’s analysis of this issue below. Finally, the
court addressed Abram’s claim of innocence based on his cousin “now claiming for the first time
that he was actually the shooter in this case,” and not Abram or Abram’s brother. The court noted
case law discussing how a possible postconviction claim of actual innocence might be raised. The
court then discussed the relevant evidence in this case, both from trial and the postconviction
evidentiary hearing, and rejected this claim. In doing so, the court found that the “new testimony”
of the brother (the court referenced Abram’s first name here, but given the reference to “new
testimony,” appears to mean the brother) and his cousin was not credible and did not “overcome”
the trial testimony of the victim identifying Abram as the shooter.
Abram perfected the present appeal to this court.
III. ASSIGNMENTS OF ERROR
Abram assigns, restated, that the district court erred when it failed to find that (1) Abram
was denied the right to a fair trial based on certain specified errors by the trial court, Abram’s
brother perjuring himself, and prosecutorial misconduct with respect to knowingly allowing the
brother to give perjured or false testimony; (2) trial counsel was ineffective in various specified
ways; (3) appellate counsel was ineffective for failing to assign as error or argue that Abram was
“denied his right to a fair trial,” failing to assign that “trial counsel was ineffective,” and failing to
assign error “regarding jury instructions”; and (4) Abram’s postconviction assertions of actual
innocence amounted to a violation of his due process rights.
IV. STANDARD OF REVIEW
In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier
of fact, resolves conflicts in the evidence and questions of fact. [CITATION]. An appellate court upholds the trial court’s findings unless they are clearly
erroneous. Id.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which an appellate court reviews independently of the lower court’s ruling. [CITATION].
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law
and fact. [CITATION]. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error. Id. With regard to
the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), an appellate court reviews such legal determinations independently of the lower court’s
decision. [CITATION].
[SEGMENT 22]
====== End of Document ====== V. ANALYSIS
. DENIAL OF RIGHT TO FAIR TRIAL
In his first assignment of error, Abram asserts that the district court erred when it failed to
find he was denied the right to a fair trial based on certain specified errors by the trial court,
Abram’s brother perjuring himself, and prosecutorial misconduct with respect to knowingly
allowing the brother to give perjured or false testimony. The issues raised in Abram’s first
assignment of error correspond directly to the issues raised in the first claim set out in Abram’s
postconviction motion. The only issue included in Abram’s first claim, but not in his first
assignment of error, is his assertion of trial court error in failing to sustain his trial counsel’s
motions for a directed verdict.
In the order ruling on Abram’s motion for postconviction relief, the district court found
that every one of the issues raised in Abram’s first claim were or could have been litigated on
direct appeal. The court further found that Abram failed to adduce any evidence or establish that
he was entitled to relief on any of those claims. However, in the section of its order addressing
issues raised in Abram’s postconviction brief, the court separately addressed the issue of perjured
testimony by Abram’s brother and whether Abram had carried his burden of proving that the State
knowingly used perjured testimony from the brother to secure Abram’s conviction.
(a) Issues of Trial Court Error Procedurally Barred
We agree with the district court’s determination that the issues of trial court error raised in
Abram’s first postconviction claim are procedurally barred. Postconviction relief is a very narrow
category of relief, available only to remedy prejudicial constitutional violations that render the
judgment void or voidable. [CITATION]. The need for
finality in the criminal process requires that a defendant bring all claims for relief at the first
opportunity. Id. A motion for postconviction relief cannot be used to secure review of issues that
were known to the defendant and which were or could have been litigated on direct appeal. Id. The
issues of trial court error raised in Abram’s first postconviction claim and again in his first
assignment of error are all issues that could have been brought on direct appeal. The district court
did not err in denying this portion of Abram’s first claim.
(b) Perjured Testimony and Prosecutorial Misconduct
At trial, the brother identified Abram as the shooter; in his testimony during the evidentiary
hearing, he indicated that he “wasn’t exactly sure who the shooter was.” The district court observed
that Abram’s postconviction motion relies upon the argument that there was perjured testimony
adduced from his brother at trial and that the State was aware of this perjured testimony. The court
framed the issue as not one of whether the State’s main trial witness recanted his trial testimony
during the postconviction evidentiary hearing, but rather, whether Abram carried his burden of
proving that the State knowingly used perjured testimony from the brother.
Prosecutors are charged with the duty to conduct criminal trials in such a manner that the
accused may have a fair and impartial trial, and prosecutors are not to inflame the prejudices or
excite the passions of the jury against the accused. [CITATION]. Prosecutorial
misconduct encompasses conduct that violates legal or ethical standards for various contexts
because the conduct will or may undermine a defendant’s right to a fair trial. Id. A prosecutor’s
misconduct that prejudices a defendant’s right to a fair trial violates due process. Id.
Where the testimony is in any way relevant to a case, the knowing use of perjured testimony
by the prosecution deprives a criminal defendant of his or her right to a fair trial. [CITATION]
In a postconviction proceeding, the burden is on the defendant to establish that the prosecution
knowingly used false evidence in securing the conviction. [CITATION] (superseded by statute on other
grounds as stated in [CITATION]).
The district court found that the brother’s testimony during the evidentiary hearing was not
credible. The court stated:
It was apparent [the brother] only answered questions convenient to him and lacked details
about all facts. The timing of his accusations toward the State and his attorney for feeding
him testimony [at trial] should be questioned in that they arose after the statute of
limitations had run and the State could no longer pursue additional charges that had been
dismissed against [the brother] as part of a plea agreement. [The brother’s] testimony is
self-serving as [the brother] admitted several family members had been upset with him for
testifying during the initial trial.
The district court went on to determine that, even assuming the brother’s trial testimony
was false, Abram had presented no evidence that the prosecution knew or should have known his
testimony was false or perjured at the time of trial. In reaching this conclusion, the court noted the
prosecutor’s affidavit attesting to her belief that the information provided by the brother before
trial and his testimony during trial was “truthful and honest” based on his demeanor and the fact
that his testimony was supported by other eyewitnesses. She also stated in her affidavit that while
she may have asked for more detail on specific topics during their meetings, the brother was never
asked or told to testify to anything that was not truthful. The court also noted the deposition
testimony of the brother’s attorney that after the brother entered a plea to charges against him and
prior to Abram’s trial, the brother never recanted or told his attorney he was not being truthful and
that the brother was never told by the attorney or by the State to testify about certain facts during
Abram’s trial. And, the court noted the consistency between the brother’s trial testimony and the
testimony of the victim. Again, the court stated that the brother’s postconviction testimony was
lacking in detail and not credible, and it found no credible evidence that the State knowingly used
perjured testimony to secure Abram’s conviction.
The district court’s assessment of whether Abram met his burden of proving the State
knowingly used perjured testimony to secure his conviction is consistent with our own review of
the record from the evidentiary hearing. Its findings of fact on this issue are not clearly erroneous.
The court did not err in denying the portion of Abram’s first postconviction claim relating to the
allegedly perjured testimony of his brother and the issue of prosecutorial misconduct.
. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
In his second assignment of error, Abram asserts that the district court erred when it failed
to find that trial counsel was ineffective in various specified ways. In this assignment of error,
Abram sets forth allegations of ineffective assistance of trial counsel that correspond to 12 of the
14 issues of trial counsel ineffectiveness raised in the second claim of his postconviction motion.
Although Abram apparently did not directly address his second claim in his postconviction brief,
the district court addressed each of the issues of trial counsel ineffectiveness raised in Abram’s
second claim. However, we decline to do so. When a defendant’s trial counsel is different from
his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial
counsel’s ineffective performance which is known to the defendant or is apparent from the record;
otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding. [CITATION]. See, also, [CITATION] (where first attorney withdrew and second attorney represented defendant
during hearing on motion to withdraw plea, at sentencing, and on direct appeal, defendant was
required to allege claims of ineffective assistance of first attorney on direct appeal). Abram was
represented by different counsel on direct appeal. Abram did not properly raise any issues of
ineffective assistance of trial counsel on direct appeal. Each of the issues of trial counsel
ineffectiveness identified in Abram’s second assignment of error was known to Abram at the time
of his trial and could have been raised on direct appeal. Abram’s claims of ineffective assistance
of trial counsel are procedurally barred.
. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Abram raised issues of ineffective assistance of appellate counsel in the third claim of his
postconviction motion. It was his first opportunity to do so. Claims of ineffective assistance of
appellate counsel may be raised for the first time on postconviction review. [CITATION].
When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin
by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced
the defendant. [CITATION]. Counsel’s failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that
inclusion of the issue would have changed the result of the appeal. Id.
The district court denied Abram’s third claim, based on its analysis of his claims of
ineffective assistance of trial counsel and denial of the right to a fair trial, which showed that those
claims would not have had merit on direct appeal. The court also noted the deposition testimony
of Abram’s appellate counsel with respect to counsel’s thoughts on the strength of Abram’s appeal.
Appellate counsel testified that his “initial thought” after reviewing the trial evidence was that he
had “really not much to argue to an appellate court.”
Abram asserts that the district court erred when it failed to find that appellate counsel was
ineffective for “failing to assign as error or argue that Abram was denied his right to a fair trial,”
“failing to assign as error or argue that trial counsel was ineffective,” and “failing to assign error
regarding jury instructions.”
To be considered by an appellate court, an alleged error must be both specifically assigned
and specifically argued. [CITATION]. The third
assignment of error is vaguely stated and does not specifically incorporate the previously alleged
deficiencies by trial counsel. On that basis, we could disregard the assigned error. Nevertheless,
[SEGMENT 23]
even when considering Abram’s supporting arguments, we conclude the third assigned error must
fail due to lack of specificity.
Abram’s argument in support of his third assignment of error adds little in the way of
specificity. The totality of his argument with respect to ineffective assistance of appellate counsel
is as follows:
The district court erred and abused discretion when it failed to find ineffective
assistance of appellate counsel. Appellate counsel was ineffective for failing to assign as
error or argue that [Abram] was denied his right to a fair trial, the jury instruction issues,
and that trial counsel was ineffective as set forth above in the sections of this brief above.
Appellate counsel failed to assign as error that the district court presented improper
jury instructions, which failed to accurately set forth the law, did not conform to the NJI2d
Crim. Model Jury Instructions and prejudiced [Abram]. Appellate counsel failed to
properly assign errors in his appeal brief that were deemed waived by the Nebraska Court
of Appeals, prejudicing [Abram].
This argument does little more than restate the allegations of his assignment of error. An argument
that does little more than restate an assignment of error does not support the assignment, and an
appellate court will not address it. [CITATION]
Even if we turn to the argument sections in support of Abram’s first and second
assignments of error (concerning the denial of a fair trial and ineffective assistance of trial counsel),
we note that Abram does not specifically argue each of the issues specifically raised in his first
and second assignments of error. And, many of the arguments presented in support of his first two
assignments of error consist only of conclusory statements. For purposes of this third assignment
of error, those conclusory statements do not show a reasonable probability that had his appellate
counsel assigned those issues as error, the result of the direct appeal would have been different.
Conclusory assertions unsupported by coherent analytical argument fail to satisfy the requirement
of arguing an assigned error to obtain consideration by an appellate court. [CITATION]
And, Abram does not argue, specifically or otherwise, each of the issues specifically raised in his
first and second assignments of error.
Because of the generalized and vague nature of Abram’s third assignment of error, his
failure to include an argument in support of that error that does little more than restate the assigned
error, and the conclusory nature of much of the argument in support of Abram’s first and second
assignments of error, we decline to address Abram’s third assignment of error further.
. ACTUAL INNOCENCE
Abram assigns that the district court erred when it failed to find that his postconviction
assertions of actual innocence amounted to a violation of his due process rights. This assignment
of error is based on the cousin’s assertions made during the evidentiary hearing that the cousin was
actually the shooter. The district court addressed this issue in its order denying postconviction
relief, but it noted that Abram’s motion did not mention any claim that the cousin was the shooter
or that Abram was actually innocent. The only mention of the cousin in Abram’s postconviction
motion was his assertion that his trial counsel was ineffective for failing to depose the cousin. The
court stated, “If this claim had any legs, it would have been raised in trial, [Abram’s] appeal, and
[Abram’s] initial [postconviction motions].” The court did, however, go on to address the claim of
actual innocence that developed during the course of the evidentiary hearing.
In addressing the claim, the district court first noted “[the cousin’s] self-serving
[postconviction] testimony that is protected by double jeopardy as [the cousin] will be shortly
released from prison from his sentence related to this case.” The court also noted the “ever
changing” testimony from these family members about the shooter’s identity. Specifically, the
court noted that during trial, Abram and his brother each identified the other as being the shooter;
in his postconviction testimony, the brother testified that he was not certain as to the shooter’s
identity, although he knew three men were there; the cousin testified in the postconviction
proceedings that he was the shooter; and Abram’s postconviction testimony states that his trial
testimony was truthful. The court also noted the strength of the victim’s trial testimony identifying
Abram as the shooter. In that regard, the court noted that the victim knew Abram well, she
recognized his appearance and voice, she spoke his nickname during the incident, and he
responded by telling her not to say his name and shooting her. The court concluded that the new
testimony of the brother and the cousin was not credible and did not overcome the trial testimony
of the victim with respect to Abram being the shooter. Accordingly, the court denied Abram’s
claim of actual innocence.
We are not convinced that Abram raised a claim of actual innocence in his postconviction
motion. In an appeal from the denial of postconviction relief, an appellate court will not consider
for the first time on appeal claims that were not raised in the verified motion. [CITATION]
However, because this issue was addressed by the district court and is addressed by both parties in their briefs on appeal, we consider it briefly.
A claim of actual innocence may be a sufficient allegation of a constitutional violation
under the Nebraska Postconviction Act. [CITATION] The
essence of a claim of actual innocence is that the State’s continued incarceration of such a
petitioner without an opportunity to present newly discovered evidence is a denial of procedural
or substantive due process. Id. The threshold to entitle a prisoner to an evidentiary hearing on a
postconviction claim of actual innocence is extraordinarily high. Id. Such a petitioner must make
a strong demonstration of actual innocence because after a fair trial and conviction, the
presumption of innocence vanishes. Id.
The district court found that the postconviction testimony of the cousin and the brother was
not credible and that the evidence presented in the evidentiary hearing that someone other than
Abram was the shooter did not overcome the strength of the victim’s trial testimony identifying
Abram as the shooter. The court’s findings are consistent with our own review of the evidence and
are not clearly erroneous. The court did not err in denying Abram’s claim of actual innocence.
VI. CONCLUSION
We find no clear error in the factual findings of the district court following the evidentiary
hearing. The court did not err in denying Abram’s motion for postconviction relief.
AFFIRMED.
Now, respond to the instruction.
### Instruction:
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/15/2023 08:06 AM CDT
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STATE V. BOPPRE
Cite as 315 Neb. 203
State of Nebraska, appellee, v.
Jeff Boppre, appellant.
___ N.W.2d ___
Filed September 15, 2023. No. S-21-515.
1. Motions for New Trial: Evidence: Appeal and Error. An appellate
court applies a de novo standard when reviewing a trial court’s dismissal
of a motion for new trial without conducting an evidentiary hearing,
but it applies an abuse of discretion standard of review to appeals from
motions for new trial denied after an evidentiary hearing.
2. Postconviction: Motions for New Trial: Evidence. When deciding
whether an evidentiary hearing is required on a motion for new trial,
trial courts have discretion to adopt reasonable prehearing procedures,
just as they do under the Nebraska Postconviction Act.
3. Criminal Law: Motions for New Trial: Evidence: Proof. Neb. Rev.
Stat. § 29-2101(5) (Reissue 2016) authorizes a new trial when the
defendant satisfies a two-prong burden of proof. First, the defendant
must show the evidence at issue has been newly discovered since trial,
meaning the evidence existed at the time of trial but could not, with rea-
sonable diligence, have been discovered and produced at trial. Second,
the defendant must show the evidence materially affected his or her sub-
stantial rights, meaning it is so substantial that with it, a different verdict
would probably have been reached at trial.
4. Criminal Law: Motions for New Trial: Evidence. If a motion for new
trial under Neb. Rev. Stat. § 29-2101 (Reissue 2016) is not supported
by the required evidence in the required form, a district court need
not consider it further and may deny the motion without an eviden-
tiary hearing.
5. Criminal Law: Motions for New Trial: Limitations of Actions. To
have any effect, a motion for new trial must comply with the statutory
time limitations. Neb. Rev. Stat. § 29-2103 (Reissue 2016) imposes
different time limits on filing motions for new trial, depending on the
statutory ground relied upon.
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6. Motions for New Trial: Legislature: Limitations of Actions:
Evidence: Dismissal and Nonsuit. If a motion for new trial fails to
satisfy the statutory timeliness requirements imposed by the Legislature,
a court need not consider it further and may dismiss it without an evi-
dentiary hearing.
7. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature so that different provisions are consistent, har-
monious, and sensible.
8. Criminal Law: Motions for New Trial. Because the materiality provi-
sions in Neb. Rev. Stat. §§ 29-2101 and 29-2102(2) (Reissue 2016) use
nearly identical language, courts construe them consistently.
9. Criminal Law: Motions for New Trial: Evidence: Proof. When a
defendant seeks a new trial on the ground of newly discovered evidence,
the evidentiary hearing provisions of Neb. Rev. Stat. § 29-2102(2)
(Reissue 2016) are satisfied if the motion and supporting affidavits,
depositions, or oral testimony set forth sufficient facts which, if true,
establish that (1) the new evidence existed at the time of trial but could
not, with reasonable diligence, have been discovered and produced at
trial and (2) such evidence is so substantial that with it, a different ver-
dict would probably have been reached at trial.
10. Criminal Law: Motions for New Trial: Evidence. To properly ana-
lyze whether a defendant is entitled to an evidentiary hearing on claims
of newly discovered evidence, a court considers, with respect to each
claim, whether the motion and supporting documents (1) comport with
the form and content requirements of Neb. Rev. Stat. §§ 29-2102 and
29-2103 (Reissue 2016); (2) comport with the timeliness requirements
of § 29-2103; and (3) set forth facts which, if true, satisfy the eviden-
tiary hearing requirements of § 29-2102(2). Because a defendant must
satisfy all of these requirements to be entitled to an evidentiary hearing,
a court may address the requirements in any order and the defendant’s
failure to satisfy one requirement makes it unnecessary for the court to
address the others.
11. Courts: Records. It is not the court’s duty to scour the record in search
of facts that might support a claim.
12. Motions for New Trial: Evidence. Defendants filing a motion for new
trial must make specific allegations, instead of mere conclusions of fact
or law, to receive an evidentiary hearing.
13. ____: ____. To set forth sufficient facts, a motion for new trial based
on newly discovered evidence should clearly and succinctly identify
the evidence claimed to be newly discovered and should state with
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Cite as 315 Neb. 203
particularity (1) the date on which such evidence was discovered; (2)
why such evidence could not, with reasonable diligence, have been dis-
covered and produced at trial; and (3) why such evidence is so substan-
tial that with it, a different verdict would probably have been reached
at trial.
14. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued.
15. ____. Conclusory assertions unsupported by coherent analytical argu-
ment fail to satisfy the requirement of arguing an assigned error to
obtain consideration by an appellate court.
16. Criminal Law: Motions for New Trial: Evidence: Appeal and Error.
Even when the allegations in a motion for new trial set forth a narrative
to support a new trial based on newly discovered evidence, the failure
to accompany the motion with the type of supporting evidence required
by Neb. Rev. Stat. § 29-2102(1) (Reissue 2016) provides a basis for
dismissal without an evidentiary hearing.
17. Criminal Law: Motions for New Trial: Evidence: Dismissal and
Nonsuit. The statutes authorizing motions for new trial in criminal
cases do not permit a defendant to supplement the required supporting
documents after receiving an order dismissing the motion without an
evidentiary hearing.
18. Actions: Appeal and Error. Unlike the doctrines of claim and issue
preclusion, which involve successive lawsuits, the law-of-the-case doc-
trine involves successive stages of one continuing lawsuit.
19. ____: ____. When it applies, the law-of-the-case doctrine operates to
preclude reconsideration of substantially similar, if not identical, issues
at successive stages of the same suit or prosecution.
20. ____: ____. The law-of-the-case doctrine promotes judicial efficiency
and protects parties’ settled expectations by preventing parties from
relitigating settled issues within a single action.
21. ____: ____. Under the law-of-the-case doctrine, the holdings of an
appellate court on questions presented to it in reviewing proceedings of
the trial court become the law-of-the-case; those holdings conclusively
settle, for purposes of that litigation, all matters ruled upon, either
expressly or by necessary implication.
22. ____: ____. Courts will not apply the law-of-the-case doctrine if con-
siderations of substantial justice suggest a reexamination of the issue is
warranted, if materially and substantially different facts are presented, or
if the applicable law has changed.
23. Motions for New Trial: Evidence: Appeal and Error. The law-of-
the-case doctrine can apply in motions for new trial based on newly
discovered evidence when the files and records in the case show that
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Cite as 315 Neb. 203
the same or substantially similar evidence has already been considered
by an appellate court in the same case and found not to support a new
trial. However, just as in other case types, the doctrine should not be
applied if the defendant presents materially and substantially different
facts, when the applicable law has changed, or when considerations of
substantial justice suggest a reexamination of the issue is warranted.
24. Evidence: Words and Phrases. Evidence is not “newly discovered” if
its substance was known to the defendant at the time of trial.
Appeal from the District Court for Scotts Bluff County:
Andrea D. Miller, Judge. Affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., Thomas P.
Frerichs, of Frerichs Law Office, P.C., Vanessa Potkin and Tara
Thompson, of Innocence Project, and Andrea Butler and Sara
Shaw Tatum, of Kirkland & Ellis, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Stacy, J.
In 1989, Jeff Boppre was convicted of two counts of
first degree murder and four related felonies. His convic-
tions were affirmed on direct appeal. 1 In the years since his
direct appeal, Boppre has collaterally attacked his convic-
tions through a series of motions for new trial and succes-
sive motions for postconviction relief. This appeal involves
Boppre’s third motion for new trial, which the district court
dismissed without an evidentiary hearing. Because our de
novo review shows that Boppre’s operative motion and sup-
porting documents did not entitle him to an evidentiary hear-
ing, we affirm.
1
State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
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STATE V. BOPPRE
Cite as 315 Neb. 203
I. BACKGROUND
In September 1988, Richard Valdez and Sharon Condon
were shot and killed in a rural farmhouse north of Scottsbluff,
Nebraska. In connection with those deaths, Boppre was
charged with two counts of first degree murder, two counts
of robbery, and two counts of using a firearm to commit
a felony.
The evidence adduced at Boppre’s jury trial was summa-
rized in State v. Boppre (Boppre I). 2 To provide context for the
various claims of newly discovered evidence that Boppre raises
in his third motion for new trial, we quote at length from our
summary of the evidence in Boppre I:
Beginning in July 1988, Ricky Zogg began to supply
Boppre with cocaine and marijuana which Zogg pur-
chased from Richard Valdez, who occupied a house north
of the town of Scottsbluff with his girlfriend, Sharon
Condon. . . .
About 2 months before the killings, Boppre suggested
to Zogg, “Let’s just take [Valdez’] money and his drugs,
that way we don’t have to buy it [any] more.” Zogg
agreed, and they planned to “[j]ust go in and shoot
[Valdez].” Armed with guns, Boppre and Zogg twice
went to Valdez’ house but left before accomplishing
their purpose.
For 1 to 2 months before the killings, Boppre had
been supplying Kenard Wasmer and Alan Niemann with
cocaine which he had been purchasing from Valdez.
On the evening before the killings, September 18,
1988, Boppre acquired some cocaine from Valdez at
Niemann’s request. Boppre met Niemann at a mobile
home which Niemann and Wasmer shared, and Boppre
and Niemann used the cocaine. During the course of the
evening, Boppre and Niemann went to Valdez’ house
several more times to buy more cocaine. Each time, they
2
Id.
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acquired about a quarter or half gram of the substance
and shared it with Wasmer before returning to Valdez’
for more.
Sometime after midnight on September 19, Boppre
suggested to Wasmer and Niemann, “Let’s just go blow
[Valdez] away.” According to Wasmer, Boppre “looked
at [Niemann] and asked [Niemann] if he’d go do it with
him and [Niemann] said no, that he couldn’t do it, he
couldn’t just shoot somebody. And he kept trying to get
[Niemann] to do it and [Niemann] kept saying no and he
called him a pussy and asked me, he looked at me and
said, ‘Come on, Wasmer, I know you can do it.’ I told
him, I said, ‘Dude, the guy has never done nothing to
me, I don’t even know the man, I’m not going to go do
something to him.’”
Boppre told them, “Well, I’ll go do it myself then,” and
walked out the door. Niemann followed Boppre, telling
Wasmer, “I’m going to go talk him out of it.” Wasmer
remained at the trailer.
Boppre and Niemann went back out to Valdez’, where
Boppre bought a quarter gram of cocaine and they left.
After Boppre and Niemann used the cocaine, Boppre
drove to his father’s house, where he was living, went
inside, changed clothes, and got a gun. [Boppre and
Niemann] then returned to Valdez’ house, and Boppre got
out of the vehicle and knocked on the door. According to
Niemann, he heard a man’s voice yell, “Who is it?” After
Boppre identified himself, the door opened and Niemann
heard “a loud, ‘Oh,’ something, ‘Oh God, oh, shit.’”
Niemann then heard two shots, saw Boppre “jump up
into the house,” arms aiming downward, and then heard
a series of additional shots.
Niemann went into the house and found Valdez lying
on his back on the kitchen floor with his head and shoul-
ders in the middle of the doorway between the kitchen
and living room. As Niemann was leaving the house,
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Valdez rolled onto his right side. Boppre came out of the
house and reloaded his gun, saying, “[T]here couldn’t
be any witnesses.” Boppre then went back inside the
house, and Niemann heard a woman’s high-pitched voice
and a series of still more shots. Boppre came out of the
house with several items in his hands and then went
back into the house and knocked out the kitchen light
with a hammer. While traveling back to Niemann’s and
Wasmer’s trailer, Boppre told Niemann, “[Y]ou should
have seen it. . . . You should have seen that bitch plead
for her life.”
....
At Boppre’s suggestion, Wasmer and Niemann agreed
to travel to Phoenix, Arizona, with Boppre, where they
could use the money they took from Valdez to acquire
a considerable amount of cocaine. They put several of
the things they had stolen into the trunk of Boppre’s
vehicle, Boppre placed the gun he had used for the kill-
ings under the front seat of the vehicle, and the three
left. Over Boppre’s relevance objections, Wasmer was
allowed to testify that on their way to Phoenix, Boppre
discussed stopping somewhere to buy more shells for
the gun and “was talking about going into [convenience]
stores, robbing them and killing whoever was behind the
cash register or in the store.” This prompted Wasmer to
dismantle the gun and throw pieces of it out the window
of the vehicle “so they couldn’t be replaced” “[t]o keep
anybody else from being killed with that gun.” . . .
....
Near Gallup, New Mexico, Boppre decided to dis-
pose of the gun. According to Wasmer, they drove out
of Gallup for “a ways and [Boppre] spotted . . . quite a
big washout beside the road. We stopped, pulled over,
[Boppre] got the gun out of the car, we all jumped
over the fence, I walked over to the edge of it, stopped
. . . [Boppre] and [Niemann] walked on down farther
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and stayed there for a few minutes, not very long, and
then came back, we got in the car and left.” Niemann
testified similarly that to dispose of the gun, they crossed
over a fence into a ravine by the side of the road and that
Boppre threw the gun into one mud puddle and the gun
clip into another puddle.
The morning after the killings, Condon’s body was
found in the bedroom of the Valdez house, and Valdez’
body was found in the kitchen near the doorway into
the living room. According to Niemann, who reviewed a
picture of Valdez’ body as found, Valdez’ body was dis-
covered in a different position than when he last saw it.
Law enforcement personnel found four shell casings and
seven bullets in and around Valdez’ body and two shell
casings and two bullets around Condon’s body. Pieces
of glass from a broken light bulb were discovered in the
kitchen. . . .
The district court received into evidence, over
Boppre’s hearsay objections, pictures which portray
writing on the floor near where Valdez’ body was found
and writing on the casement of the door between the
kitchen and living room. As depicted in the pictures, the
letters “J-F-F B-O-P-E” were written in white grease on
the floor by the left side of Valdez’ body, and the letters
“J-E-F-F” were written toward the bottom of the side of
the casement nearer to Valdez’ body within reach of the
body’s right hand.
Police Lt. Robert Kinsey testified that there “appear[ed]
to be blood” on the side of the casement closest to
Valdez and that the letters written on the door casement
appeared to be written in blood. . . . Police Det. Mark
Overman corroborated Kinsey’s testimony, saying that
the letters on the side of the door casement nearer to
Valdez were written in what “appear[ed] to be blood.”
Although Boppre objected, Overman was allowed to
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further testify that it appeared someone wrote the mark-
ings on the door casement with a finger.
When Valdez was found, there was white grease pres-
ent on the index and middle fingers of his right hand and
blood present on both of his hands. Valdez’ brother testi-
fied that Valdez was right-handed. A nearly empty tube
of white “lubriplate gear grease” was discovered under
Valdez’ body. According to a criminalist who testified for
the State, the substance in the tube, on the floor, and on
Valdez’ fingers was “similar and could have originated
from a common source.” A documents examiner for the
Nebraska State Patrol opined that the writing on the floor
in grease “was consistent with having been written with a
human finger,” but testified that the writing was of insuf-
ficient quality and quantity for a positive identification of
the writer to be made.
The pathologist who performed the autopsies on the
two victims discovered four gunshot entrance wounds on
Valdez’ chest, abdomen, and left arm. According to the
pathologist, Valdez died from the gunshot wounds to his
chest and abdomen, “which resulted in massive internal
damage to the organs” in those areas. The pathologist also
opined that an individual with injuries such as Valdez’
would live 15 minutes after the wounds were received
and could have retained consciousness for 10 to 15 min-
utes. The pathologist was of the further opinion that it
was possible that Valdez could have moved around and
written something on the floor and wall for 5 to 15 min-
utes after receiving the wounds.
....
A pathologist testifying on Boppre’s behalf expressed
the view that it was “highly unlikely that [Valdez] would
have been physically capable of writing the descriptions”
which were discovered next to his body. He opined
that a person who sustained the injuries Valdez sus-
tained “would have not remained conscious longer than
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probably three minutes and probably would have died
within the next five or six minutes.”
Just after the killings, Boppre’s father told law
enforcement personnel that Boppre owned a .32-caliber
handgun. Although the handgun could not be located
in the father’s house, the father showed the officers an
area southwest of his residence where Boppre practiced
shooting at targets with the gun, and allowed them to
pick up some .32-caliber shell casings which were lying
on the ground.
With Niemann’s and Wasmer’s help, law enforcement
personnel discovered the .32-caliber handgun in the can-
yon near Gallup, New Mexico, where Boppre had thrown
it. The State’s ballistics expert described the gun as an LA
Industrial Orbea-Eibar .32-caliber semiautomatic pistol.
When found, the gun was missing several parts, including
a thumb latch safety, the disconnector, the hammer pin,
and the sear spring.
....
The State’s ballistics expert compared the shell cas-
ings found in Boppre’s father’s yard and those found at
Valdez’ house with shell casings which he acquired from
his own test firing of the gun the police recovered near
Gallup. He determined that the shell casings which were
found at the Boppre and Valdez residences were all fired
from the gun the police recovered near Gallup. He also
compared the bullets found at the Valdez residence and
those he test fired from the gun and determined that the
bullets found at the Valdez residence were fired from
the gun the police found. . . .
Michael Neu, who was incarcerated in the Scotts Bluff
County jail at the same time as Boppre, testified, over
Boppre’s objections, that he “built up a situation of trust
in regard to [himself] and . . . Boppre,” that Boppre told
him “Mr. Valdez couldn’t have wr[itten] the name on
the floor” because Valdez “was shot and he was dead
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instantly,” and that Boppre said, “You ought to heard the
bitch beg for mercy, beg for her life.” 3
In March 1989, the jury returned guilty verdicts on all
counts. Boppre was sentenced to consecutive terms of life
imprisonment on the murder convictions and to indetermi-
nate terms of imprisonment on the remaining convictions. We
affirmed Boppre’s convictions and sentences on direct appeal. 4
1. Prior Collateral Attacks
on Convictions
After Boppre’s judgment and sentences became final, he
filed a series of motions in his criminal case collaterally
attacking the judgment. We summarize that procedural history
now and, where appropriate, provide additional detail later
in our analysis.
(a) First Motion for New Trial
Boppre filed his first motion for new trial in March 1992,
asserting several grounds, including newly discovered evi-
dence and prosecutorial misconduct. 5 The prosecutorial mis-
conduct claim was based on the State’s alleged failure to dis-
close the existence of “M.M.,” a young woman whom Boppre
claimed was a material witness to the murders. In support
of this claim, Boppre alleged that at the time of the mur-
ders, M.M. was a high school student who told some of her
classmates that she was hiding inside the Valdez house when
the murders occurred. M.M. reportedly said that she heard
three male voices and that she was familiar with Boppre and
“‘knew it wasn’t his voice.’” 6 When police learned of M.M.’s
statement, they interviewed her. She admitted telling class-
mates that she was hiding inside the Valdez house when the
3
Id. at 925-932, 453 N.W.2d at 414-17.
4
Boppre I, supra note 1.
5
See State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
6
Id. at 914, 503 N.W.2d at 531.
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murders occurred, but she told police “‘it was just something
she made up out of frustration and anger and she apologized
for making the statement.’” 7 During the evidentiary hearing
on Boppre’s first motion for new trial, his trial counsel testi-
fied that the State did not identify M.M. as a potential wit-
ness and that Boppre did not learn of M.M.’s statement until
after trial.
The district court denied Boppre’s first motion for new
trial, and this court affirmed in State v. Boppre (Boppre II). 8
In doing so, we concluded in part that Boppre’s prosecuto-
rial misconduct claim failed because M.M.’s statements were
not material to Boppre’s guilt under the standard discussed in
United States v. Agurs. 9 We reasoned that in addition to the
fact that M.M. had recanted her statement and denied that she
was at the murder scene, M.M.’s testimony was not material
because she did not claim to see anything directly relevant to
the killings and thus “never was in a position to claim that
[Boppre] was not present at the scene or that he was not the
one who shot the victims.” 10 We thus concluded that even if
M.M.’s testimony had been offered at trial, “it would not cre-
ate a reasonable doubt as to [Boppre’s] guilt which did not
otherwise exist.” 11
(b) Postconviction Motions
in 1995 and 2002
In August 1995, Boppre filed his first postconviction
motion, claiming his trial counsel was ineffective for, among
other things, failing to develop the theory that Kenard Wasmer
7
Id. at 915, 503 N.W.2d at 531.
8
Boppre II, supra note 5.
9
United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342
(1976).
10
Boppre II, supra note 5, 243 Neb. at 927-28, 503 N.W.2d at 538.
11
Id. at 928, 503 N.W.2d at 538.
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committed the murders. The district court denied that motion
without an evidentiary hearing, and we affirmed. 12
In 2002, Boppre filed his second postconviction motion,
claiming prosecutors withheld exculpatory evidence. The dis-
trict court denied this postconviction motion, and we summar-
ily affirmed without issuing a written opinion. 13
(c) DNA Testing, Second Motion for
New Trial, and Third Motion
for Postconviction Relief
In May 2005, Boppre filed a motion pursuant to the DNA
Testing Act 14 that prompted DNA testing of various items from
the crime scene, including a bloodstain found near the kitchen
door handle in Valdez’ home. Based on the results of those
DNA tests, Boppre moved to vacate and set aside his convic-
tions. 15 He also filed a second motion for new trial, asserting
there was newly discovered DNA evidence.
In 2008, Boppre filed a third motion for postconviction
relief that included a claim that his constitutional due process
rights were violated when prosecutors withheld exculpatory
evidence regarding M.M.’s statements about what she heard
at the murder scene. This postconviction motion referenced a
“recently obtained sworn statement” from M.M. in which she
claimed she was hiding in the bedroom at the time of the mur-
ders and heard John Yellowboy’s voice, but not Boppre’s.
The district court denied Boppre’s third postconviction
motion without an evidentiary hearing, but it held eviden-
tiary hearings on the 2005 motions to vacate and for new
trial based on the DNA test results. It ultimately denied both
12
State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997), disapproved on
other grounds, State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
13
See State v. Boppre, 267 Neb. xxi (No. S-03-541, Dec. 30, 2003).
14
See Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).
15
See § 29-4123.
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motions, finding that even though testing of the bloodstain
showed genetic markers consistent with the DNA profile of
Yellowboy, such evidence was not exculpatory for Boppre
because Yellowboy was known to be a frequent visitor to the
Valdez home.
Boppre appealed the denial of his motion for new trial and
the denial of his motion for postconviction relief. We affirmed
both rulings in State v. Boppre (Boppre V). 16 We agreed that
the DNA test results were not exculpatory for Boppre and did
not support a new trial. And we found no error in dismissing
the third postconviction motion based on M.M.’s statements,
reasoning that they were not “favorable evidence that was
material to Boppre’s guilt, as required to show a violation of
due process.” 17 We also noted the allegations regarding M.M.
had been the subject of previous unsuccessful collateral attacks
and that our prior “dispositions show these claims, on the
merits, do not amount to a violation of Boppre’s constitutional
right to due process.” 18
(d) 2012 Postconviction Motion
In August 2012, Boppre filed a fourth motion for postconvic-
tion relief, which the district court denied without conducting
an evidentiary hearing. We summarily affirmed that denial. 19
2. Current Motion for New Trial
In December 2018, Boppre filed his third motion for
new trial, which is the subject of this appeal. Boppre’s
counsel amended the motion in October 2019, but had diffi-
culty electronically filing the amended motion and supporting
16
State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
17
Id. at 785, 790 N.W.2d at 426.
18
Id.
19
State v. Boppre, 286 Neb. xxi (No. S-12-1170, July 10, 2013).
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documents, apparently due to the extraordinary length of
the filing and the inclusion of multiple embedded images
and videos. After unsuccessful attempts to address the issue
with amended and supplemental filings in both paper and
electronic format, Boppre’s counsel filed what he titled a
“Motion to Correct Record and for Electronic Filing of Actual
Submitted Documents.” That motion was taken up during a
records hearing conducted at the court’s request, which we
describe next.
(a) Records Hearing
In December 2019, the court conducted a records hearing
on Boppre’s third motion for new trial and, speaking from the
bench, explained why it was using the procedure:
I will just state that in correspondence with counsel I’ve
asked for participation in this hearing because of the large
volume of this case. It’s been on file for 30-plus years.
There are several volumes of exhibits and pleadings, and
the voluminous nature of the file itself along with the
voluminous nature of your pleadings leaves me in a posi-
tion of reviewing an astronomical amount of information.
And so that’s the reason . . . so that I can make an initial
ruling as to whether or not an evidentiary hearing should
go forward.
During the records hearing, both parties offered exhibits,
all of which were received. One exhibit was described by
Boppre’s counsel as a “complete” version of the amended
motion for new trial, which was 153 pages long. Another
exhibit, which was nearly 1,000 pages long and included sealed
envelopes with additional documents and a flash drive, was
represented to include all the supporting documents Boppre
tried unsuccessfully to electronically file with the amended
motion. During the records hearing, the court also received
certified copies of pertinent portions of the record in Boppre’s
criminal case.
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At the conclusion of the records hearing, Boppre asked
the court to rule on his motion to correct the record. The
court determined that issue was moot, reasoning that Boppre
had already offered, and the court had received, the exhib-
its Boppre described as correct and complete copies of his
amended motion for new trial and all supporting documents.
From that point forward, the parties and the court treated
those exhibits as the operative third motion for new trial and
the documents Boppre intended to support that motion. We
do likewise.
(b) Court’s Order of Dismissal and Denial
of Motion to Alter or Amend
On March 31, 2021, the district court entered an order ruling
on Boppre’s third motion for new trial. The order identified 10
categories of newly discovered evidence asserted in the opera-
tive motion and analyzed them all, ultimately concluding that
Boppre was not entitled to an evidentiary hearing on any of his
claims. The court thus dismissed the third motion for new trial
without an evidentiary hearing. 20
Boppre filed a timely motion to alter or amend, asserting
that the dismissal was improper and that he was entitled to an
evidentiary hearing under § 29-2102(2). In support, Boppre
offered three new exhibits that the court received over the
State’s objection. After taking the matter under advisement,
the court entered an order overruling Boppre’s motion to alter
or amend and expressly finding that the new exhibits did not
change its conclusion that an evidentiary hearing was not
required on Boppre’s third motion for new trial. Boppre filed
this timely appeal.
II. ASSIGNMENT OF ERROR
Boppre assigns several errors that we consolidate and
restate as one: The district court erred in dismissing his
20
See Neb. Rev. Stat. § 29-2102(2) (Reissue 2016).
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operative motion for new trial without conducting an evi-
dentiary hearing. In support of this assignment, Boppre gen-
erally argues that the claims of newly discovered evidence
asserted in his operative motion for new trial, and the support-
ing documents relating to those claims, satisfied the hearing
requirements set out in § 29-2102(2).
III. STANDARD OF REVIEW
[1] An appellate court applies a de novo standard when
reviewing a trial court’s dismissal of a motion for new trial
without conducting an evidentiary hearing, but it applies an
abuse of discretion standard of review to appeals from motions
for new trial denied after an evidentiary hearing. 21 Which of
these standards to apply in this appeal depends on how the
records hearing is characterized. We conclude the de novo stan-
dard of review is appropriate because, as we will explain, the
records hearing was not an evidentiary hearing on the motion
for new trial, but, rather, was a prehearing procedure designed
to assist the district court in determining whether an eviden-
tiary hearing was required.
This court has not directly addressed the propriety of
holding a records hearing when considering whether to
grant an evidentiary hearing on a motion for new trial under
§ 29-2102(2). 22 But in the postconviction context, we have
long recognized that trial courts have discretion to adopt rea-
sonable procedures for identifying which records to review
when determining whether to grant a full evidentiary hear-
ing. 23 And we have said that reasonable procedures can include
holding a records hearing during which the court “receiv[es]
into evidence the relevant files and records that the court
21
See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017). See, also, State v.
Hill, 308 Neb. 511, 955 N.W.2d 303 (2021).
22
But see Hill, supra note 21 (Stacy, J., concurring).
23
See, e.g., State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
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may need to review in considering whether to grant or deny
an evidentiary hearing.” 24
[2] The statute governing evidentiary hearings under the
Nebraska Postconviction Act is similar to the statute govern-
ing evidentiary hearings on motions for new trial, in that
both require the court to make a preliminary examination and
determine whether an evidentiary hearing on the motion is
required. 25 We now expressly hold that when deciding whether
an evidentiary hearing is required on a motion for new trial,
trial courts have discretion to adopt reasonable prehearing pro-
cedures, just as they do under the Nebraska Postconviction Act.
However, as we have emphasized in the postconviction con-
text, the scope of what a court may receive at a records hearing
must comport with the procedure mandated by the governing
statutory scheme. 26
Here, in response to Boppre’s contention that the amended
motion and supporting documents accepted for electronic fil-
ing were incomplete and inaccurate, the district court used the
records hearing to receive a complete and accurate copy of
the operative motion and supporting documents. The records
hearing was also used to provide the court with portions of
the existing court record pertinent to considering whether
Boppre’s third motion for new trial was timely under Neb.
Rev. Stat. § 29-2103 (Reissue 2016) and satisfied the statutory
requirements for an evidentiary hearing under § 29-2102(2).
As utilized by the district court, the records hearing was a
reasonable prehearing procedure on Boppre’s third motion for
new trial.
24
State v. Glover, 276 Neb. 622, 628, 756 N.W.2d 157, 162 (2008).
25
See Cross, supra note 21, 297 Neb. at 161, 900 N.W.2d at 6 (comparing
evidentiary hearing provisions in § 29-2102(2) and Neb. Rev. Stat.
§ 29-3001(2) (Reissue 2016) and noting “the legislative history of
§ 29-2102(2) suggests the Legislature intended the new prehearing review
process applicable to motions for new trial to be similar to the prehearing
review process applied in postconviction actions”).
26
See Glover, supra note 24.
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IV. ANALYSIS
1. Overview of Motions for
New Trial Based on Newly
Discovered Evidence
In criminal cases, motions for new trial are governed by the
provisions in Neb. Rev. Stat. §§ 29-2101 to 29-2103 (Reissue
2016). Section 29-2101 sets out seven grounds on which such
a motion may be based. Boppre’s operative motion for new
trial relies exclusively on § 29-2101(5). Section 29-2101 pro-
vides, in relevant part:
A new trial, after a verdict of conviction, may be
granted, on the application of the defendant, for any of
the following grounds affecting materially his or her
substantial rights: . . . (5) newly discovered evidence
material for the defendant which he or she could not with
reasonable diligence have discovered and produced at the
trial . . . .
[3] We have interpreted § 29-2101(5) to authorize a new
trial when the defendant satisfies a two-prong burden of
proof. 27 First, the defendant must show the evidence at issue
has been newly discovered since trial, meaning the evidence
existed at the time of trial but could not, with reasonable dili-
gence, have been discovered and produced at trial. 28 Second,
the defendant must show the evidence materially affected
his or her substantial rights, meaning it is so substantial that
with it, a different verdict would probably have been reached
at trial. 29 Such evidence must be competent, material, and
27
See State v. Brown, 310 Neb. 318, 965 N.W.2d 388 (2021).
28
See id.
29
See, id.; State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020).
Accord, State v. Kofoed, 283 Neb. 767, 798, 817 N.W.2d 225, 248 (2012)
(criminal defendants seeking new trial on ground of newly discovered
evidence “must show that if the evidence had been admitted at the former
trial, it would probably have produced a substantially different result”);
State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005) (same); State v.
Faust, 269 Neb. 749, 696 N.W.2d 420 (2005) (same).
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credible, and not merely cumulative. And it must involve
something other than the credibility of witnesses who testified
at the former trial. 30
But the issue raised in this appeal is not whether Boppre is
entitled to the relief of a new trial; rather, it is whether Boppre’s
motion for new trial and supporting documents entitled him to
an evidentiary hearing. We thus begin by reviewing the various
statutory requirements that must be satisfied to avoid dismissal
of a motion for new trial without an evidentiary hearing.
(a) Form and Content Requirements
Section 29-2103 requires all motions for new trial to be
“made by written application” 31 and to “state the grounds
under section 29-2101 which are the basis for the motion.” 32
Additionally, all new trial motions must “be supported by evi-
dence as provided in section 29-2102.” 33
[4] Section 29-2102(1) sets out the type of evidence that
will support a motion for new trial based on newly discov-
ered evidence under § 29-2101(5), and it provides that such
a motion “shall be supported by evidence of the truth of the
ground in the form of affidavits, depositions, or oral testi-
mony.” If a motion under § 29-2101(5) is not supported by the
required evidence in the required form, a district court need
not consider it further and may deny the motion without an
evidentiary hearing. 34 We elaborate further on this supporting
document requirement later in our analysis.
30
State v. French, 200 Neb. 137, 262 N.W.2d 711 (1978).
31
§ 29-2103(1).
32
§ 29-2103(2).
33
Id.
34
See, Hill, supra note 21 (affirming dismissal of motion for new trial based
on newly discovered evidence because defendant’s motion did not include
required supporting documents in form of affidavits, depositions, or oral
testimony); Cross, supra note 21 (holding handwritten letter attached to
motion for new trial based on newly discovered evidence was not type of
supporting evidence permitted by § 29-2102(1)).
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(b) Timeliness Requirements
[5] To have any effect, a motion for new trial must comply
with the statutory time limitations. 35 Section 29-2103 imposes
different time limits on filing motions for new trial, depending
on the statutory ground relied upon. We limit our discussion
here to motions based upon the ground of newly discov-
ered evidence.
Prior to August 30, 2015, a motion based on newly discov-
ered evidence had to be “filed within a reasonable time after
the discovery of the new evidence and [could not] be filed
more than three years after the date of the verdict.” 36 But in
2015, 37 the Legislature amended the new trial statutes, includ-
ing the timeliness requirements in § 29-2103. Currently, a
motion for new trial alleging newly discovered evidence
shall be filed within a reasonable time after the discovery
of the new evidence and cannot be filed more than five
years after the date of the verdict, unless the motion and
supporting documents show the new evidence could not
with reasonable diligence have been discovered and pro-
duced at trial and such evidence is so substantial that a
different result may have occurred. 38
The 2015 amendments thus retained the statutory require-
ment that motions for new trial based on newly discovered
evidence must be filed “within a reasonable time after the
discovery of the new evidence,” but repealed the 3-year time
bar and replaced it with a qualified 5-year time bar. 39 Our prior
opinions have not discussed how to construe the qualified
5-year time bar, and we do not discuss it in this opinion either.
35
See State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
36
See § 29-2103(4) (Reissue 2008).
37
2015 Neb. Laws, L.B. 245.
38
§ 29-2103(4) (Reissue 2016).
39
See 2015 Neb. Laws, L.B. 245.
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Instead, our timeliness inquiry will focus on the statutory
requirement that the motion “shall be filed within a reasonable
time after the discovery of the new evidence.” 40
[6] If a motion for new trial fails to satisfy the statutory
timeliness requirements imposed by the Legislature, a court
need not consider it further and may dismiss it without an evi-
dentiary hearing. 41
(c) Statutory Standard for
Evidentiary Hearing
Evidentiary hearings have long been used by trial courts
when considering motions for new trial, but the Legislature’s
2015 amendments to the new trial statutes added specific pro-
visions governing evidentiary hearings. 42 Section 29-2102(2)
currently provides:
If the motion for new trial and supporting documents
fail to set forth sufficient facts, the court may, on its
own motion, dismiss the motion without a hearing. If the
motion for new trial and supporting documents set forth
facts which, if true, would materially affect the substan-
tial rights of the defendant, the court shall cause notice
of the motion to be served on the prosecuting attorney,
grant a hearing on the motion, and determine the issues
and make findings of fact and conclusions of law with
respect thereto.
The hearing provisions in § 29-2102(2) apply regardless
of the statutory ground on which a new trial is sought, but in
State v. Hill, 43 we considered how those provisions apply to a
40
§ 29-2103(4).
41
See, Bartel, supra note 35 (refusing to consider motion for new trial to
extent grounds failed to conform to statutory timeliness requirements);
Cross, supra note 21.
42
See 2015 Neb. Laws, L.B. 245.
43
See Hill, supra note 21.
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motion for new trial asserting the ground of newly discovered
evidence. Hill explained that when a motion for new trial is
based on newly discovered evidence, a court may dismiss the
motion without an evidentiary hearing if the motion and sup-
porting documents “did not set forth sufficient facts to establish
that there was newly discovered evidence, that such evidence
was material to [the] defense, and that [the defendant] could
not with reasonable diligence have discovered and produced
the evidence at . . . trial.” 44
Hill did not directly address what it means under § 29-2102(2)
to “set forth facts which, if true, would materially affect the
substantial rights of the defendant.” We note that nearly identi-
cal materiality language appears in § 29-2101, which provides
that a new trial may be granted for “grounds affecting materi-
ally [the defendant’s] substantial rights.” And in the context of
motions for new trial based on newly discovered evidence, we
have long construed the materiality provision in § 29-2101 to
require that a defendant must show the evidence is so substan-
tial that with it, a different verdict would probably have been
reached at trial. 45
[7,8] When the Legislature amended § 29-2102(2) in 2015
to add evidentiary hearing requirements, it used materiality
language that is nearly identical to that used in § 29-2101. It
is a settled principle of statutory construction that components
of a series or collection of statutes pertaining to a certain
subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of the
Legislature so that different provisions are consistent, harmo-
nious, and sensible. 46 Because the materiality provisions in
44
Id. at 520, 955 N.W.2d at 309.
45
See, Brown, supra note 27; Krannawitter, supra note 29. Accord, Kofoed,
supra note 29; Dunster, supra note 29; Faust, supra note 29.
46
State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022).
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§§ 29-2101 and 29-2102(2) use nearly identical language, we
construe them consistently. 47
[9] As such, building on our proposition from Hill, we now
hold that when a defendant seeks a new trial on the ground
of newly discovered evidence, the evidentiary hearing provi-
sions of § 29-2102(2) are satisfied if the motion and support-
ing affidavits, depositions, or oral testimony set forth suffi-
cient facts which, if true, establish that (1) the new evidence
existed at the time of trial but could not, with reasonable
diligence, have been discovered and produced at trial and (2)
such evidence is so substantial that with it, a different verdict
would probably have been reached at trial.
(d) Summary of Analytical Framework
[10] In summary, to properly analyze whether a defendant is
entitled to an evidentiary hearing on claims of newly discov-
ered evidence, a court considers, with respect to each claim,
whether the motion and supporting documents (1) comport
with the form and content requirements of §§ 29-2102 and
29-2103; (2) comport with the timeliness requirements of
§ 29-2103; and (3) set forth facts which, if true, satisfy the
evidentiary hearing requirements of § 29-2102(2). Because a
defendant must satisfy all of these requirements to be entitled
to an evidentiary hearing, a court may address the require-
ments in any order and the defendant’s failure to satisfy one
requirement makes it unnecessary for the court to address
the others.
Before analyzing whether Boppre’s motion and supporting
documents satisfy all these requirements, there are several
preliminary matters to address. In the sections that follow, we
47
See, In re Estate of Psota, 297 Neb. 570, 900 N.W.2d 790 (2017) (in
enacting statute, Legislature is presumed to have knowledge of all previous
legislation on subject); Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d
296 (2017) (where statute has been judicially construed and construction
has not evoked amendment, it is presumed Legislature acquiesced in
court’s determination of its intent).
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(1) identify what Boppre is claiming to be newly discovered
evidence, (2) identify which of Boppre’s supporting documents
are properly considered, (3) address the unusual procedural
posture of this case, and (4) address the applicability of the
law-of-the-case doctrine.
2. Preliminary Matters
(a) Identifying Boppre’s Claims of
Newly Discovered Evidence
As the district court noted, the manner in which Boppre has
styled his operative motion for new trial makes it exception-
ally challenging to identify what, specifically, he asserts is
the newly discovered evidence that supports his third motion
for new trial. Instead of facilitating the preliminary judicial
review required by §§ 29-2101 to 29-2103, Boppre’s operative
motion and supporting documents unnecessarily frustrated it.
Boppre’s operative motion reads more like a true crime
mystery than a concise legal motion. It is 153 pages long,
includes more than 60 images and video links, and buries fac-
tual assertions within long historical narratives that are scat-
tered with legal conclusions. We discern no meaningful effort
to tie any of the allegations to the statutory requirements for an
evidentiary hearing set out in § 29-2102(2), or to the timeliness
requirements set out in § 29-2103(4).
[11] We are seeing similarly drafted motions with more
regularity in cases such as this, and we expressly disapprove
of the practice. It makes the trial court’s preliminary review
process unnecessarily cumbersome and increases the risk that
even a careful review of a novel-length motion might fail to
identify a critical fact or supporting document. Although the
rules of civil pleading do not govern motions such as this, 48
that does not mean that courts must tolerate motions for
48
See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016) (holding
that motions in postconviction proceedings are not governed by Nebraska
Court Rules of Pleading in Civil Cases).
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new trial that are not clear and succinct. It is not the court’s
duty to scour the record in search of facts that might support
a claim. 49
[12] In a postconviction motion, when stating the “grounds
relied upon” 50 for postconviction relief, we require defendants
to “make specific allegations instead of mere conclusions of
fact or law in order to receive an evidentiary hearing.” 51 We
now recognize a similar pleading requirement for defendants
filing a motion for new trial: Such motions must make spe-
cific allegations, instead of mere conclusions of fact or law, to
receive an evidentiary hearing. Indeed, the statutes governing
motions for new trial are perhaps even more specific in this
regard than the statutes governing postconviction motions,
because § 29-2102(2) requires motions for new trial to “set
forth sufficient facts” and provides that if a motion fails to
do so, “the court may, on its own motion, dismiss the motion
without a hearing.”
[13] To assist both litigants and trial courts, we clarify that
in order to “set forth sufficient facts” under § 29-2102(2),
a motion for new trial based on newly discovered evidence
should clearly and succinctly identify the evidence claimed
to be newly discovered and should state with particularity
(1) the date on which such evidence was discovered; (2) why
such evidence could not, with reasonable diligence, have been
discovered and produced at trial; and (3) why such evidence is
so substantial that with it, a different verdict would probably
have been reached at trial.
49
See In re App. No. C-4973 of Skrdlant, 305 Neb. 635, 942 N.W.2d 196
(2020). Accord, State v. Jennings, 312 Neb. 1020, 1026, 982 N.W.2d 216,
223 (2022) (courts “will not scour the record on appeal to understand
unclear arguments or find support for broad conclusions”); State v. Wood,
310 Neb. 391, 427, 966 N.W.2d 825, 853 (2021) (recognizing courts “do
not scour the record in search of facts that might support an appellant’s
claim”).
50
§ 29-3001(1).
51
Boppre V, supra note 16, 280 Neb. at 784, 790 N.W.2d at 425.
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Boppre’s operative motion was far from clear and succinct,
but with the assistance of written briefs, the district court
was able to discern that Boppre was asserting 10 categories
of newly discovered evidence. On appeal, Boppre acknowl-
edges that the “trial court divided Boppre’s newly discovered
evidence into ten categories,” 52 and he does not assign or
argue that the court erred by misidentifying, mischaracterizing,
or overlooking any category of newly discovered evidence
alleged in his operative motion. We therefore use the same
10 categories of evidence as the starting point for our appel-
late review. But we do not ultimately address all 10 categories
of evidence, because we conclude only four of the categories
were sufficiently argued in Boppre’s appellate brief.
[14,15] To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically
argued. 53 Conclusory assertions unsupported by coherent ana-
lytical argument fail to satisfy the requirement of arguing an
assigned error to obtain consideration by an appellate court. 54
Although Boppre’s brief makes conclusory statements about
several categories of newly discovered evidence considered
by the district court, he does not support those statements with
coherent legal analysis. Several other categories of evidence
are referenced only in a summary chart appearing at the end
of Boppre’s brief, again with no legal analysis. Because this
does not satisfy the rule that assigned errors must be spe-
cifically argued, our de novo review will consider only those
categories of newly discovered evidence that were considered
by the district court and that Boppre specifically assigned and
specifically argued in his appellate brief. We describe those
four categories broadly now and provide greater detail later
in our analysis.
52
Brief for appellant at 20.
53
See, State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023); Humphrey
v. Smith, 311 Neb. 632, 974 N.W.2d 293 (2022).
54
State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).
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Broadly stated, our de novo review will address the follow-
ing four categories of evidence: (1) evidence supporting the
theory that Yellowboy was responsible for murdering Valdez
and Condon, (2) evidence suggesting the gun recovered in
New Mexico was not the murder weapon, (3) evidence under-
mining the State’s theories at trial, and (4) evidence that
Boppre’s trial counsel had a conflict of interest.
(b) Proper Supporting Documents
[16] As stated, § 29-2102(1) directs that motions for new
trial asserting newly discovered evidence “shall be supported
by evidence of the truth of the ground in the form of affida-
vits, depositions, or oral testimony.” We have construed this
statutory requirement to mandate such supporting documents
and to allow dismissal without an evidentiary hearing when
no such supporting documents are presented. 55 And we have
emphasized that “[t]he requirement for evidence of the truth of
the asserted grounds is not trivial; it is designed, inter alia, to
demonstrate the strength of the claim, which in turn determines
entitlement to a hearing.” 56 Thus, even when the allegations
in the motion itself set forth a narrative to support a new trial
based on newly discovered evidence, the failure to accompany
the motion with the type of supporting evidence required by
§ 29-2102(1) provides a basis for dismissal without an eviden-
tiary hearing. 57
At the records hearing in this case, the court received more
than 1,000 pages of supporting documents comprising various
affidavits, as well as stand-alone photographs, letters, news-
paper articles, magazine articles, police reports, pleadings,
orders, and a variety of other documents. But only affida-
vits, depositions, and oral testimony are competent support-
ing documents under the plain language of § 29-2102(1). We
55
See Hill, supra note 21.
56
Id. at 521, 955 N.W.2d at 309.
57
Hill, supra note 21.
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therefore limit our de novo review of Boppre’s supporting
documents to those authorized by § 29-2102(1), which in this
case include only the affidavits received during the records
hearing. We neither consider nor discuss the other documents
received at the records hearing.
[17] Nor do we consider any of the exhibits that Boppre
offered during the hearing on his motion to alter or amend.
At the point when Boppre offered such exhibits, the court had
already conducted its review of the operative motion and sup-
porting documents, had determined they did not warrant an
evidentiary hearing, and had entered an order dismissing the
motion. While nothing in the statutes authorizing motions for
new trials in criminal cases expressly precludes a party from
asking the court to alter or amend its ruling dismissing such
a motion, neither do the statutes authorize expanding the sup-
porting documents after the court has entered a final order
denying the motion. 58 Simply put, we do not read the new
trial statutes to permit a defendant to supplement the required
supporting documents after receiving an order dismissing the
motion without an evidentiary hearing. Consequently, our de
novo review will consider only those supporting documents
that were received during the records review hearing and that
also comport with § 29-2102(1).
(c) Unique Procedural Posture
When considering whether Boppre’s third motion for new
trial was filed within a reasonable time after the discovery
of the evidence he relies upon, we do not ignore the unique
procedural circumstances presented by the 2015 amendments
to § 29-2103(4). Before such amendments, a motion for new
trial based on newly discovered evidence could not be filed
more than 3 years after the date of the verdict. 59 Boppre’s
58
Accord Robertson, supra note 48 (holding Nebraska Postconviction Act
does not contemplate opportunity to amend motion after court determines
it is not sufficient to necessitate evidentiary hearing).
59
See 2015 Neb. Laws, L.B. 245.
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verdicts occurred in 1989, so after he filed his first motion
for new trial in 1992, Boppre was effectively time barred
from filing a motion for new trial based on newly discovered
evidence under § 29-2101(5) until the effective date of the
amendments to § 29-2103(4) on August 30, 2015. While not
determinative, this procedural posture is one of the circum-
stances we consider when evaluating the timeliness of the
claims asserted in his December 2018 motion.
(d) Law-of-the-Case Doctrine
The State’s brief on appeal argues that several of Boppre’s
claims of newly discovered evidence are barred by the law-
of-the-case doctrine, because substantially similar claims have
already been considered and rejected by an appellate court. We
have not previously discussed the applicability of this doctrine
in the context of motions for new trial based on newly discov-
ered evidence.
[18-20] Unlike the doctrines of claim and issue preclusion,
which involve successive lawsuits, the law-of-the-case doctrine
involves successive stages of one continuing lawsuit. 60 When
it applies, the law-of-the-case doctrine operates to preclude
reconsideration of substantially similar, if not identical, issues
at successive stages of the same suit or prosecution. 61 The doc-
trine promotes judicial efficiency and protects parties’ settled
expectations by preventing parties from relitigating settled
issues within a single action. 62
[21,22] Under the law-of-the-case doctrine, the holdings
of an appellate court on questions presented to it in review-
ing proceedings of the trial court become the law of the case;
those holdings conclusively settle, for purposes of that litiga-
tion, all matters ruled upon, either expressly or by necessary
60
Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
61
State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020); State v. Lavalleur,
298 Neb. 237, 903 N.W.2d 464 (2017).
62
Spratt v. Crete Carrier Corp., 311 Neb. 262, 971 N.W.2d 335 (2022).
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implication. 63 The doctrine is not without exceptions, however.
Courts will not apply the law-of-the-case doctrine “if consid-
erations of substantial justice suggest a reexamination of the
issue is warranted,” 64 if materially and substantially different
facts are presented, 65 or if the applicable law has changed. 66
[23] This court has applied the law-of-the-case doctrine in
criminal cases, 67 in postconviction cases, 68 and in motions for
new trial based on DNA testing. 69 We see no principled reason
the doctrine cannot also be applied in motions for new trial
when the defendant asserts that evidence is newly discovered,
but the files and records in the case show that the same or
substantially similar evidence has already been considered by
an appellate court in the same case and found not to support a
new trial. 70 However, just as in other case types, the doctrine
63
Price, supra note 61; Lavalleur, supra note 61.
64
Price, supra note 61, 306 Neb. at 52, 944 N.W.2d at 291. Accord, Money,
supra note 60 (law-of-case doctrine will not apply when considerations
of substantial justice suggest reexamination of issue is warranted, when
materially and substantially different facts are presented, or when applicable
law has changed); State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006)
(law-of-case doctrine will not preclude reconsideration of foundational
challenge to expert’s testimony in second trial, where expert’s opinions
varied from one trial to next and new legal standard for admissibility was
adopted after first trial).
65
See, Price, supra note 61; Lavalleur, supra note 61; Money, supra note 60.
66
See, Money, supra note 60; Davlin, supra note 64.
67
See, e.g., Price, supra note 61; Lavalleur, supra note 61; State v. Merchant,
288 Neb. 439, 848 N.W.2d 630 (2014); Davlin, supra note 64.
68
See, e.g., Thomas v. State, 268 Neb. 594, 685 N.W.2d 66 (2004) (holding
law-of-case doctrine precluded reconsideration of alleged juror misconduct
in connection with postconviction claim because appellate court had
previously affirmed denial of motion for new trial based on claims of juror
misconduct).
69
See, e.g., State v. Pratt, 277 Neb. 887, 766 N.W.2d 111 (2009) (holding
law-of-case doctrine did not preclude trial court from reconsidering matter
not reached in prior appeal that was dismissed for lack of jurisdiction).
70
See, Price, supra note 61; Lavalleur, supra note 61.
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should not be applied if the defendant presents materially and
substantially different facts, 71 when the applicable law has
changed, 72 or when considerations of substantial justice suggest
a reexamination of the issue is warranted. 73
3. Analysis of Boppre’s Motion
and Supporting Documents
Having reviewed the analytical framework and addressed
the preliminary matters bearing on our de novo review, we
turn now to consideration of whether Boppre was entitled to
an evidentiary hearing on any of the four broad categories
of newly discovered evidence that he asserted in his opera-
tive motion for new trial and specifically assigned and argued
in his appellate brief. For the convenience of the reader, we
repeat the most pertinent standards that govern judicial review
of a motion for new trial asserting the ground of newly discov-
ered evidence.
The statutory form and content requirements are met when
the motion is “supported by evidence of the truth of the ground
in the form of affidavits, depositions, or oral testimony.” 74 The
statutory time requirement in § 29-2103(4) is met when the
motion is filed within a reasonable time after the discovery
of the new evidence. And an evidentiary hearing is required
by § 29-2102(2) when the motion and supporting documents
set forth sufficient facts which, if true, establish that (1) the
evidence relied upon existed at the time of trial but could
not, with reasonable diligence, have been discovered and
produced at trial and (2) such evidence is so substantial that
with it, a different verdict would probably have been reached
at trial.
71
Id.
72
See Money, supra note 60.
73
See Price, supra note 61. Accord Davlin, supra note 64.
74
§ 29-2102(1).
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(a) Evidence Implicating Yellowboy
Boppre’s operative motion and appellate briefing describe
three subcategories of newly discovered evidence implicating
Yellowboy as the person who murdered Valdez and Condon:
(1) evidence that Yellowboy’s DNA was discovered at the
crime scene, (2) evidence that M.M. heard Yellowboy’s voice
on the night of the murders, and (3) evidence that Yellowboy
made statements about committing the murders. In the sec-
tions that follow, we summarize each of these subcatego-
ries of evidence and the supporting documents that Boppre
offered to show the truth of such evidence. We then analyze
whether Boppre’s motion and supporting documents satis-
fied all the requirements for an evidentiary hearing regarding
such evidence.
(i) Evidence of Yellowboy’s DNA
Boppre’s motion alleges that “previously ordered” DNA
testing identified Yellowboy as the source of a bloodstain
found beside a door handle in Valdez’ home. He asserts this
evidence is material because “[t]here is no innocent explana-
tion for Yellowboy’s blood stains [on] the door of the farm-
house.” We identify just one supporting document referencing
this evidence—an affidavit from a medical doctor opining
that there may have been more than one assailant involved in
Valdez’ murder.
We need not analyze whether Boppre’s motion and support-
ing documents satisfy all the requirements for an evidentiary
hearing on this evidence, because we conclude the same evi-
dence of Yellowboy’s DNA has already been considered in this
case and found not to support a new trial, so the claim is barred
by the law-of-the-case doctrine.
In Boppre V, decided in 2010, we considered the same
DNA test results Boppre now claims are newly discovered,
and we concluded the evidence did not entitle Boppre to a
new trial under the DNA Testing Act. We described the issue
on appeal as “whether the [Yellowboy] DNA evidence was of
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such a nature that if it had been offered and admitted at the
former trial, it probably would have produced a substantially
different result.” 75 We concluded the DNA evidence was not
exculpatory, because it did not disprove the State’s theory that
Boppre was the perpetrator and did not impeach Niemann’s
and Wasmer’s testimony that Boppre was the shooter. Instead,
we found the DNA evidence “merely showed that . . .
Yellowboy, a frequent visitor, had been to the Valdez home
at some point in time prior to the murder investigation.” 76 We
also noted that Boppre called Yellowboy as a witness during
trial and that Yellowboy admitted he was at the Valdez home
on the night of the murders and saw Boppre there. Finally, for
the sake of completeness, we stated in Boppre V that even if
the DNA evidence were considered in light of other evidence
Boppre had developed after trial, “the DNA results would still
not be exculpatory.” 77
The law-of-the-case doctrine plainly bars reconsideration
of Boppre’s claim that he is entitled to a new trial based on
evidence that Yellowboy’s DNA profile was found in a blood-
stain near a door handle at the Valdez home. We have already
considered the same evidence and concluded that it would not
have produced a different result at trial, and Boppre’s current
motion presents no materially different facts regarding this
DNA evidence; nor does he suggest that considerations of sub-
stantial justice warrant reexamination of the issue or that the
applicable law has changed. The district court did not err in
dismissing this claim without an evidentiary hearing.
(ii) Evidence That M.M. Heard
Yellowboy’s Voice
Boppre’s operative motion describes “newly discovered”
evidence that M.M. was hiding under a mattress in the bed-
room when the murders occurred and heard Yellowboy’s
75
Boppre V, supra note 16, 280 Neb. at 781, 790 N.W.2d at 423.
76
Id. at 783, 790 N.W.2d at 424.
77
Id.
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voice but did not hear Boppre’s voice. Boppre claims he
did not know about this evidence at the time of trial. But he
acknowledges that since at least 1992, he and his investiga-
tors have known that M.M. claimed to have been hiding under
the mattress during the murders and said she did not hear
Boppre’s voice. Despite this knowledge, Boppre’s operative
motion alleges that M.M. did not tell her “full true” story
about this evidence to Boppre’s investigators until 2017. The
operative motion therefore characterizes M.M.’s 2017 affida-
vit as “newly discovered for the purposes of this Motion.”
In her 2017 affidavit, M.M. states that she and Condon were
in a bedroom talking when they heard people arrive. M.M.
affirmatively states that she heard Yellowboy’s voice, after
which Condon told her to hide, so she crawled
between the wall and the bed and I was able to pull the
mattress over me a little. I could hear people walking
around and muffled conversations but I was so scared and
I couldn’t really understand what was going on. I could
hear at least two voices but somehow I feel like there was
three people there. I knew . . . Boppre’s voice and I did
not hear his voice that night.
To support the truth of M.M.’s claim that she was hiding inside
the Valdez house at the time of the murders, Boppre refers to
several other affidavits in the record, including prior affidavits
signed by M.M. in 1992.
Once again, we need not analyze whether Boppre’s motion
and supporting documents satisfy all the requirements for
an evidentiary hearing on this claim, because we conclude
that reconsideration of this evidence is barred by the law-of-
the-case doctrine. As our earlier recitation of the procedural
background illustrates, this is not the first time Boppre has
requested a new trial based on a statement by M.M. that she
was hiding at the murder scene and heard Yellowboy’s voice,
but not Boppre’s voice. We considered substantially similar
evidence in both Boppre II and Boppre V.
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In Boppre II, we considered Boppre’s claim that the State
engaged in prosecutorial misconduct by not disclosing M.M.’s
statement. 78 We rejected that claim, concluding that M.M.’s
statement was not material and would not have created reason-
able doubt as to Boppre’s guilt, because M.M. did not claim
to see anything directly relevant to the killings and “never
was in a position to claim that [Boppre] was not present at
the scene or that he was not the one who shot the victims.” 79
We specifically found that even if M.M.’s testimony had been
offered at trial, “it would not create a reasonable doubt as to
[Boppre’s] guilt which did not otherwise exist.” 80
In Boppre V, we considered Boppre’s claim that his due
process rights were violated when the State failed to disclose
M.M.’s statements. 81 We again concluded that M.M.’s state-
ments were not material to Boppre’s guilt, reasoning that her
evidence was not “favorable evidence that was material to
Boppre’s guilt.” 82
Although Boppre suggests that M.M.’s 2017 affidavit is
more complete than her prior affidavits, the substance of what
she claims to have heard while hiding under the mattress is
no different than the evidence we considered in Boppre II
and Boppre V. We have already concluded this evidence does
not materially affect Boppre’s guilt and does not entitle him
to a new trial, and Boppre does not assert, nor do we find,
that the applicable law has changed 83 or that considerations
of substantial justice suggest a reexamination of the issue
is warranted. 84 We therefore conclude the law-of-the-case
78
Boppre II, supra note 5.
79
Id., 243 Neb. at 927-28, 503 N.W.2d at 538.
80
Id. at 928, 503 N.W.2d at 538.
81
Boppre V, supra note 16.
82
Id. at 785, 790 N.W.2d at 426.
83
See Money, supra note 60.
84
See Price, supra note 61. Accord Davlin, supra note 64.
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doctrine bars reconsideration of this evidence as reframed in
M.M.’s 2017 affidavit.
(iii) Evidence of Yellowboy’s Confession
Boppre’s operative motion asserts there is newly discovered
evidence that, at some point before Boppre’s trial, Yellowboy
told a woman named “Sheila” that he killed Valdez and Condon
and threatened to do the same to Sheila. The motion generally
refers to Yellowboy’s statements as “confessions.” Boppre’s
supporting documents for this claim include several affidavits,
one of which was signed by Sheila on August 8, 2017.
In this affidavit, Sheila states that sometime after the mur-
ders, Yellowboy kidnapped her from a motel in Scottsbluff
and drove her to the vacant home where Valdez and Condon
were murdered. Sheila states that Yellowboy physically and
sexually assaulted her inside the home and that during the
assaults, he said “he would kill me like he killed [Condon]
and that no one would find me.” Sheila stated that after
this, Yellowboy claimed that “he owned” her and that she
“would never be able to get away.” He told Sheila that if she
disobeyed him, he would “find [her] and kill [her].” Sheila
states that another time, Yellowboy took her to a cemetery in
Scottsbluff and said they “were at [Condon’s] grave.” While
they were there, he raped and beat Sheila and told her that
“he wished he had stabbed [Condon] instead of shooting her.”
He also told Sheila that if she ever left him, “he would find
[her] and kill [her].” Sheila’s affidavit states that her fear of
Yellowboy prompted her to move to another state and pre-
vented her from coming forward sooner.
To support the truth of Sheila’s evidence about Yellowboy’s
statements, Boppre refers to M.M.’s 1992 and 2017 affi-
davits, in which M.M. avers that someone named “Sheila”
told her that Yellowboy confessed to killing Valdez and
Condon. Boppre also refers to supporting affidavits describing
Yellowboy’s violent criminal history both before and after the
murders of Valdez and Condon, which Boppre says “shows
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[Yellowboy] to be perfectly capable of having committed the
murders.” Finally, Boppre refers to affidavits from his inves-
tigators describing the various investigative tools they had
used since 1992 in an effort to locate and interview Sheila and
explaining how, in 2017, they eventually located her living in
Florida under a different surname and traveled there to obtain
her affidavit.
The district court concluded that Sheila’s evidence about
Yellowboy’s statements did not require an evidentiary hearing
for several reasons: (1) The evidence was discovered decades
ago (which we understand to be an implicit finding that the
motion was not filed within a reasonable period of time after
discovering the evidence); (2) the evidence is inadmissible
hearsay; and (3) in any event, the evidence is not so substan-
tial that with it, a different verdict would probably have been
reached at trial.
Regarding Sheila’s evidence, we need not analyze whether
Boppre’s motion and supporting documents satisfy all of the
requirements for an evidentiary hearing, because we conclude
Boppre’s motion and supporting documents have not set forth
facts which, if true, would materially affect his substantial
rights. 85 In other words, this evidence is not so substantial that
with it, a different verdict would probably have been reached
at trial.
As the district court observed, Sheila’s testimony about
what Yellowboy said to her appears to be inadmissible hearsay
being offered for its truth. 86 Boppre’s motion has advanced no
legal theory under which such statements would be admissible
if offered during either an evidentiary hearing or a new trial,
and it is fundamental that newly discovered evidence must
be admissible before it can be evidence that is so substantial
85
See § 29-2102(2).
86
See Neb. Rev. Stat. § 27-801 (Reissue 2016) (defining hearsay as “a
statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted”).
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that with it, a different verdict would probably have been
reached at trial.
But even if there is some theory under which Sheila’s testi-
mony about Yellowboy’s statements might be deemed admis-
sible, this evidence, even if true, is not so substantial that
with it, a different verdict probably would have been reached
at trial. 87 As our earlier recitation of the evidence at trial
demonstrates, there was overwhelming evidence of Boppre’s
guilt, including eyewitness testimony identifying Boppre as
the shooter, testimony from Boppre’s jailmate that Boppre
admitted to the murders, expert ballistics evidence connecting
bullets and casings found at the murder scene to a handgun
owned and used by Boppre, and a dying declaration written
by one of the victims identifying Boppre by name. None of
this evidence is refuted or weakened by Sheila’s testimony that
Yellowboy “confessed” to the killings while he was assaulting
her. Moreover, the context of Yellowboy’s statements strongly
suggests he made the statements to terrorize and control Sheila,
rather than to confess responsibility for the murders. We can-
not find the district court erred in dismissing this claim without
an evidentiary hearing.
(b) Evidence Relating to
Murder Weapon
Boppre’s operative motion asserts there is newly discovered
evidence that calls into question whether “major undisclosed
modifications were made to the [handgun recovered in New
Mexico] before it was tested” and whether the handgun found
in New Mexico is “the same gun that is still in evidence and
was identified as the murder weapon.” As part of this claim,
Boppre identifies three subcategories of evidence that he
describes as newly discovered: (1) evidence regarding a miss-
ing magazine release, (2) evidence that the murder weapon
was reported stolen, and (3) evidence that Niemann was in jail
87
See Krannawitter, supra note 29.
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in Nebraska on the day the handgun was recovered in New
Mexico. Boppre argues this evidence “call[s] into question the
entire story surrounding the discovery of the gun.” 88 Before we
analyze each subcategory of evidence, we provide additional
detail about the ballistics evidence adduced at trial.
(i) Ballistics Evidence
Evidence at trial established that before the murders of
Valdez and Condon, Boppre owned a handgun and used it for
target practice near his father’s residence. After the murders,
investigators recovered shell casings from the target practice
area. Evidence at trial also established that after the murders,
Wasmer and Niemann led law enforcement to an area in New
Mexico where they located and recovered parts of the handgun
allegedly used in the murders of Valdez and Condon.
The State’s ballistics expert testified that the recovered
handgun, a “La Industrial Orbea Eibar .32 auto. pistol,” was
caked in mud and debris and had “several parts . . . missing”
when it was delivered to him. Using a photograph of an exem-
plar gun of the same make and model, the expert generally
testified about which parts were missing from the recovered
gun, and about the modifications required to get the recovered
gun to fire so that ballistics testing could be performed. The
expert did not purport to testify about every modification he
made in order to get the gun to fire, but he did testify that
none of the modifications would “in any way change what
kind of markings would end up on a shell casing or the bul-
let.” He also testified that if the recovered gun had been in
proper working order, it would have fired nine rounds from
a magazine clip, but that when he test-fired the recovered
gun, he was “not using a magazine to automatically load”
the rounds and instead had to “manually pull the slide back,
feed another [round] into the chamber, close the slide and fire
it again.”
88
Brief for appellant at 17.
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The State’s ballistics expert also testified about testing per-
formed on both shell casings and bullets. Using a microscope,
the expert examined the shell casings recovered from Boppre’s
target practice area and the shell casings recovered from the
murder scene and concluded they came from the same gun.
The expert also concluded the shell casings from bullets test-
fired from the gun recovered in New Mexico matched the shell
casings recovered from the murder scene.
As to the bullets, the State’s expert testified that bullets
recovered from the murder scene and from the victims’ bod-
ies matched the bullets test-fired from the recovered handgun.
The State’s ballistics evidence thus tied Boppre to the crime
in two ways: (1) Shell casings from Boppre’s target practice
area matched casings recovered from the murder scene, and
(2) casings and bullets from test-firing the recovered handgun
matched casings and bullets recovered from the murder scene
and the victims.
Boppre also offered trial testimony from his own ballistics
expert, who also performed ballistics testing on the hand-
gun recovered from New Mexico. Boppre’s expert testified
that the condition of the gun made it dangerous to test-fire
because “[a]ll of the normal component parts were not pres-
ent,” but that after 63 tries, he was able to get the gun to fire.
Boppre’s expert did not explain what he had to do to get the
gun to fire or which specific component parts were missing,
but he did not dispute the State’s expert’s explanation on
those issues. As to the shell casings, Boppre’s expert agreed
that the casings from test-firing the recovered gun matched
both the casings found at the murder scene and those found
in Boppre’s target practice area. As to the bullets, Boppre’s
expert acknowledged the bullets fired from the recovered gun
were similar to bullets recovered from the crime scene and
the victims, but he could not say for certain they were fired
from the same gun, in part because the recovered gun had sig-
nificant oxidation on its barrel, perhaps from being immersed
in water.
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With this additional background regarding the ballistics
evidence in mind, we now address Boppre’s specific claims of
newly discovered evidence regarding the handgun.
(ii) Evidence of Missing
Magazine Release
Boppre alleges that in March 2019, his investigators obtained
negatives of field photographs taken of the mud-caked gun
when it was recovered in New Mexico that were “never before
available to Boppre.” He claims these negatives were then
scanned to make “high-resolution” images, and he alleges that
“[t]he clarity and definition” of the enhanced images constitute
“‘newly discovered’” evidence that allows “a completely new
ability to compare the gun ‘found’ and photographed in the
mud in New Mexico with the gun still in evidence.” According
to Boppre, when these images are compared, a magazine
release is visible on the image of the gun still in evidence, but
no magazine release is visible in the high-definition image of
the mud-caked gun photographed in New Mexico. The State
disputes this conclusion, arguing that the recovered gun has
always had a magazine release but the field photographs did
not capture that detail because the gun was covered in mud.
At this phase, however, we consider only whether Boppre’s
motion and supporting documents have set forth facts which,
“if true,” 89 would materially affect his substantial rights. As
framed by Boppre’s motion, the newly discovered evidence is
high-resolution images showing that the gun “found in the mud
did not contain a magazine release,” and we focus our analy-
sis accordingly.
The supporting document for this claim is an affidavit from
a firearm expert Boppre retained in August 2019. That affidavit
states that in a “Spanish ‘Ruby’ type pistol,” the “magazine
release holds the magazine of bullets and main spring inside
of the gun,” and that “without the magazine release, the gun
89
See § 29-2102(2).
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would be inoperable and could not have been tested.” The
affidavit refers to high-resolution images of the gun “found in
the mud [and] photographed by law enforcement in 1988” and
concludes the mud-covered gun “does not contain a magazine
release.” Based on this conclusion, the expert opines that either
the gun tested by the ballistics experts and admitted into evi-
dence at trial was not the same gun recovered in New Mexico
or, if it was, it was modified to include a magazine release even
though the State’s expert did not mention such a modification
in his testimony.
The State argues that the high-resolution images should
not be considered newly discovered evidence. Alternatively,
the State argues that even if evidence about a missing maga-
zine release is newly discovered, it is not material, because
“whether [the State’s ballistics expert] or someone else
added a magazine release had no impact on the ballistics
[evidence].” 90
We express no opinion about whether the images Boppre
relies upon can properly be considered newly discovered evi-
dence. 91 Nor is it necessary to analyze whether Boppre’s
motion and supporting documents regarding the missing maga-
zine release satisfy all the requirements for an evidentiary
hearing—because, as we explain, this evidence, even if true,
would not materially affect Boppre’s substantial rights and
thus does not entitle him to an evidentiary hearing under
§ 29-2102(2).
Boppre does not dispute that both ballistics experts per-
formed testing on the gun that was admitted into evidence,
90
Brief for appellee at 44.
91
See, e.g., U.S. v. Knutson, 9 Fed. Appx. 706 (2001) (holding digital
enhancement of trial photographs is not newly discovered evidence);
State v. Avery, 345 Wis. 2d 407, 826 N.W.2d 60 (2013) (treating digital
enhancements to robbery video as newly discovered evidence but
concluding such evidence did not entitle defendant to new trial). See, also,
Cross, supra note 21 (holding evidence known to defendant at time of trial
cannot be newly discovered evidence).
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and both experts were able to get the gun to fire after modify-
ing it to accommodate for several missing component parts.
But he contends that “based on the newly discovered evidence
of the missing magazine release,” both the results of the bal-
listics testing “and the identification of the gun as the murder
weapon [are] now clearly unsupported.” He contends this is
so because evidence of the missing magazine release supports
one of two possible inferences: either the recovered gun was
modified before it was tested to include a magazine release
or the gun that experts tested was not the same one recovered
in New Mexico. But as we explain, the newly discovered
evidence is not itself material and the inferences from this
evidence advanced by Boppre either are not material or are
entirely unsupported by any facts in the motion for new trial
or supporting documents.
First, evidence of a missing magazine release does nothing
to diminish the strength, or the inculpatory nature, of the bal-
listics testing performed on the gun received into evidence.
That testing showed the gun in evidence was the same gun
Boppre used for target practice and was the same gun used
to kill Valdez and Condon. And the evidence was undisputed
that the modifications made to get that gun to fire would not
“in any way change what kind of markings would end up on a
shell casing or the bullet.”
Moreover, even if it is true that the ballistics experts had to
modify the gun in ways they did not describe in their testimony
in order to get it to fire, such evidence would, at most, serve
to impeach their credibility as to how they got the gun to fire.
And for newly discovered evidence to be material, it must
involve something other than the credibility of witnesses who
testified at the former trial. 92
Finally, there are simply no facts in Boppre’s operative
motion or supporting documents to support a reasonable
inference that the gun tested by the experts was not the same
92
French, supra note 30.
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gun recovered in New Mexico. Boppre does not challenge
the chain of custody evidence regarding the recovered gun;
nor does he assert that police, prosecutors, or anyone else
swapped the recovered gun for the gun that was tested. In
fact, Boppre makes no effort at all to explain how the mud-
caked gun that was provided to the experts for ballistics test-
ing might have come into the possession of police if it was
not the same one recovered by police in New Mexico.
Simply put, neither the results of the ballistics testing, the
admissibility of such test results, nor the reasonable inferences
from such evidence would be impacted by evidence of a miss-
ing magazine release in the recovered gun. Indeed, even if
the ballistics experts had never test-fired the gun in evidence
at all, there was still significant ballistics evidence linking
Boppre to the crimes, because the shell casings recovered
from Boppre’s target practice area matched the shell casings
recovered from the murder scene.
Because evidence of a missing magazine release in the gun
recovered from New Mexico is not so substantial that with it,
a different verdict would probably have been reached at trial,
the district court did not err in dismissing this claim of newly
discovered evidence without an evidentiary hearing.
(iii) Evidence Gun Reported Stolen
Boppre’s operative motion also asserts that in 2019, his inves-
tigators discovered a report indicating that sometime before
Boppre’s trial, the Scotts Bluff County Sherriff’s Department
was investigating the possible theft of the .32-caliber gun
“believed” to have been used to kill Valdez and Condon.
Boppre’s motion asserts that if he been able to offer evidence
at trial that law enforcement “believed that the .32 caliber pis-
tol was stolen from the murder scene, he could have used that
. . . to support his claim that the gun was in Valdez’s posses-
sion prior to the murders.” (Emphasis omitted.)
The only supporting document identified for this claim
of newly discovered evidence is a printout of the law
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enforcement report on which the claim is based. As noted,
§ 29-2102(1) provides that the only proper supporting docu-
ments for a motion asserting newly discovered evidence are
affidavits, depositions, or oral testimony. Because Boppre has
failed to support this allegation of newly discovered evidence
with a proper supporting document, the district court did not
err in finding he was not entitled to an evidentiary hearing,
and we need not engage in further analysis of this claim. 93
But even if a proper supporting document had been pro-
vided, Boppre would still not be entitled to an evidentiary
hearing on this claim, because the evidence is not so substan-
tial that with it, a different verdict probably would have been
reached at trial. Evidence that police at one time believed the
murder weapon may have been stolen from the scene does not
refute evidence that Boppre possessed the weapon either prior
to or during the murders. Nor would it negate the overwhelm-
ing evidence of Boppre’s guilt adduced at trial.
(iv) Evidence of Jail Records
Boppre’s final subcategory of newly discovered evidence
pertaining to the gun involves “jail records” that Boppre dis-
covered in 2016, which he alleges show that Niemann was
“checked back into the Morrill County, Nebraska Jail at 8:00
a.m. on . . . the same day that he was supposed to be in New
Mexico assisting the ‘gun expedition’ early that same after-
noon.” (Emphasis in original.)
Boppre’s operative motion references no competent sup-
porting documents regarding the truth of this evidence, and
we need not engage in additional analysis to conclude that it
did not entitle him to an evidentiary hearing. 94 But even if he
had provided supporting documents, the jail records evidence
is not so substantial that with it, a different verdict probably
would have been reached at trial. To the contrary, several of
93
See, Hill, supra note 21; Cross, supra note 21.
94
See id.
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the photographs in Boppre’s motion depict Niemann at the site
in New Mexico when the gun was recovered. As such, while
the jail records evidence may call into question the precise
time the gun was recovered, it would not refute the photo-
graphic evidence and direct testimony showing that Niemann
was present and assisting law enforcement when the gun was
recovered. Nor would it call into question the overwhelming
evidence of Boppre’s guilt. The district court did not err in
dismissing this claim without an evidentiary hearing.
(c) Evidence Contradicting
State’s Theories
Boppre’s operative motion asserts there are two newly dis-
covered autopsy photographs of Valdez that “go[] directly to
the heart of the State’s trial case against Boppre.” According to
the motion, one photograph “directly contradict[s] the State’s
central theme at trial that . . . Valdez wrote a ‘dying declara-
tion’ implicating Boppre.” And the other photograph shows
neck wounds that would have allowed Boppre to present “a
credible version of events that included Valdez being held at
knife point as he was killed and [show] that multiple assailants
were directly involved in the death.” We address each photo-
graph in turn.
(i) Dying Declaration
As noted in our recitation of the trial evidence, there was
evidence that the letters “‘J-F-F B-O-P-E’” were written on
the floor to the left of Valdez’ body using white grease and
that the letters “‘J-E-F-F’” were written on the door case-
ment near Valdez’ right hand in what appeared to be blood. 95
Boppre’s operative motion asserts that in 2019, his investi-
gators obtained a previously undisclosed photograph taken
during Valdez’ autopsy that shows him on his back with “a
clipboard laying on [his] chest.” The motion asserts “this
95
Boppre I, supra note 1, 234 Neb. at 929, 453 N.W.2d at 416.
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photograph is important newly discovered evidence of the
lack of bleeding from the chest wound suffered by Valdez.”
The clipboard blocks the view of most of Valdez’ chest area,
but as we understand Boppre’s argument, he contends the
image is circumstantial evidence that Valdez’ chest area was
not bloody, because someone set a clipboard there.
The supporting document for this evidence is an affidavit
from a forensic medical expert hired by Boppre in 2019 to
review the autopsy evidence. This expert opines that in order
to write the dying declaration on the floor, Valdez would have
had to “roll onto his left side and lean forward,” and that this
would have caused blood to “exit the [gunshot] wound on the
left side of [his] chest.” The expert notes that the crime scene
photographs show blood pooling under Valdez’ back “but not
on his chest,” and she states that the newly disclosed photo-
graph of the clipboard “confirm[s] the lack of bleeding from
this chest wound.” The expert opines, based on this lack of
bleeding from the chest, that either someone other than Valdez
wrote the letters on the floor or Valdez wrote them before he
was shot in the chest.
It is not necessary to analyze whether Boppre’s motion and
supporting documents satisfy all the requirements for an evi-
dentiary hearing on this claim of newly discovered evidence,
because we conclude that to the extent the substance of this
evidence shows a lack of bleeding from Valdez’ chest, it is not
newly discovered at all.
[24] Evidence is not “newly discovered” if its substance
was known to the defendant at the time of trial. 96 Here, the
existing files and record, including the original crime scene
photographs and autopsy report, show pooling of blood under
Valdez’ back, but not on his chest. Evidence that Valdez did
not have blood on his chest during the autopsy was thus
known to Boppre at the time of trial. Such evidence is not
96
See Cross, supra note 21 (counsel’s alleged conflict of interest not newly
discovered evidence because defendant knew of it at time of trial).
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rendered newly discovered just because it is depicted in a
recently obtained autopsy photograph.
Moreover, to the extent Boppre argues that the affidavit of
his expert is newly discovered evidence, we rejected a similar
argument in Boppre II, and it can fare no better now. In Boppre
II, Boppre claimed that the affidavit of a “criminalist” was
newly discovered evidence that contradicted the State’s theory
that Valdez wrote the dying declarations. 97 The criminalist
had reviewed the trial evidence and opined that “[b]ecause
there was no splattering or blood trail,” it was “improbable
that Valdez moved himself from where he was shot.” 98 The
criminalist also opined that “there should have been latent
fingerprints in the writings in blood on the doorjamb and in
grease on the floor.” 99 We concluded these new theories did not
represent newly discovered evidence, reasoning that the expert
“merely sought to evaluate bits and pieces of the trial evidence
favorably to [Boppre].” 100
We reach the same conclusion here. The affidavit of Boppre’s
forensic expert merely evaluates known evidence about the
bleeding documented on Valdez’ body during the autopsy,
to advance possible alternative theories that are favorable to
Boppre. Because this does not amount to newly discovered
evidence, the district court correctly determined that Boppre is
not entitled to an evidentiary hearing on this claim.
(ii) Neck Wounds
Boppre’s operative motion asserts that an autopsy negative
first discovered in 2019 depicts “with specificity” two knife
wounds to the side of Valdez’ neck. Boppre contends that if
this image had been available at trial, he could have relied on
97
Boppre II, supra note 5, 243 Neb. at 919, 503 N.W.2d at 534.
98
Id. at 920, 503 N.W.2d at 534.
99
Id.
100
Id. at 929, 503 N.W.2d at 539.
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it to support a defense theory that Valdez was “held at knife
point” and that “multiple assailants were directly involved in
the death.”
As supporting documents for this claim, Boppre points to
the affidavits of two medical experts who viewed the pho-
tographic image produced from this negative. One of the
experts opines that the neck wounds were inflicted at differ-
ent times—one pre mortem and the other post mortem. The
other expert describes the neck wounds as “superficial” and
opines that the wounds were inflicted by someone holding
Valdez from behind, suggesting the possibility of more than
one assailant.
Once again, it is evident from the record that although
Boppre claims this photographic image is newly discovered,
the substance of the evidence it depicts was known to him
at the time of trial. At trial, the State’s pathologist testified
about the same two neck wounds, describing them as “slic-
ing injuries” “from a thin sharp object of some type.” The
pathologist testified that both wounds occurred near the time
of Valdez’ death and acknowledged they could have occurred
pre mortem.
The substance of the evidence in the new image depict-
ing the neck wounds is, at best, cumulative of other evidence
that was both known to Boppre and produced at trial. The
fact that Boppre’s new experts reviewed this trial evidence
and developed new theories about how Valdez may have been
murdered does not make it newly discovered evidence. 101 The
district court did not err in denying an evidentiary hearing on
this claim.
(d) Evidence Regarding
Conflict of Interest
Finally, Boppre’s operative motion asserts there is newly
discovered evidence that his trial counsel had an “obvious
101
See id.
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conflict of interest [that] entitles him to a new trial.” The
motion states that sometime in 2016, Boppre requested and
obtained copies of his trial counsel’s billing statements from
1989. In reviewing those statements, Boppre discovered that,
at one time, his attorney represented “Michael Herman Neu” in
a divorce case and a workers’ compensation claim. When the
State identified Neu as a potential witness in Boppre’s criminal
trial, Boppre’s trial counsel withdrew as Neu’s counsel in both
civil cases. Boppre’s operative motion asserts that “[d]espite
knowing that Neu was going to provide damning evidence at
trial against Boppre, [trial counsel] never disclosed to anyone
that he was not only Boppre’s attorney, but he was also Neu’s
attorney.” (Emphasis omitted.)
Boppre’s motion references no affidavits, depositions, or
oral testimony to support the truth of this newly discovered
evidence, and we see none among the supporting documents
offered at the records hearing. Because Boppre failed to com-
ply with the supporting document requirement of § 29-2102
in presenting this claim, no further analysis of the assertions
in his operative motion is necessary, and it was proper for
the district court to dismiss this claim without an eviden-
tiary hearing. 102
But even if Boppre had complied with the supporting docu-
ment requirement, we would still conclude it was proper to
deny an evidentiary hearing on this claim, because Boppre
did not file his motion for new trial within a reasonable
time after discovering evidence that his trial counsel had an
alleged conflict of interest. Boppre’s operative motion does
not specify the date on which he discovered this evidence,
but it states he discovered the evidence by reviewing “copies
of the bill [trial counsel] filed with the trial court for pay-
ment as Boppre’s court-appointed attorney.” Boppre’s motion
asserts these billing statements were provided in response to
a writ of mandamus that was affirmed in relevant part in a
102
See, Hill, supra note 21; Cross, supra note 21.
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memorandum opinion by the Nebraska Court of Appeals in
November 2016. 103 It is apparent from the Court of Appeals’
opinion that the trial court ordered these billing statements
to be provided to Boppre in November 2015, yet Boppre did
not file a motion for new trial asserting this newly discovered
evidence until December 2018, and his motion asserts no facts
justifying the reasonableness of this delay. On this record, we
cannot find that the motion was filed within a reasonable time
after discovery of the alleged conflict of interest as required
by § 29-2103(4). And when a motion for new trial fails to
satisfy the statutory timeliness requirements imposed by the
Legislature, a court need not consider it further and may dis-
miss it without an evidentiary hearing. 104
V. CONCLUSION
Our de novo review of Boppre’s operative motion for new
trial and supporting documents shows that he was not entitled
to an evidentiary hearing on any of the claims of newly dis-
covered evidence at issue in this appeal. Finding no merit to
Boppre’s assigned error, we affirm the district court’s order
dismissing the motion without an evidentiary hearing.
Affirmed.
Freudenberg, J., not participating.
103
See Boppre v. Overman, No. A-15-1135, 2016 WL 6872978 (Neb. App.
Nov. 22, 2016) (selected for posting to court website).
104
See, Bartel, supra note 35; Cross, supra note 21.
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Law
9882828
[SEGMENT 1]
[CITATION]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Shler Irani, :
Plaintiff-Appellant, : No. 23AP-654
(C.P.C. No. 20CV-5763)
v. :
(REGULAR CALENDAR)
AMF Bowling Co. D/B/A :
AMF Sawmill Lanes et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on June 28, 2024
On brief: Mokhtari Law Firm, LLC, and Al A. Mokhtari, for
appellant. Argued: Al A. Mokhtari.
On brief: Gallagher, Gams, Tallan, Barnes, & Littrell,
L.L.P., and Mitchell M. Tallan, for appellees. Argued:
Mitchell M. Tallan.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Plaintiff-appellant, Shler Irani, appeals from several judgments issued by the
Franklin County Court of Common Pleas in favor of defendant-appellee, Saha Saadati. For
the following reasons, we affirm in part, reverse in part, and remand for further
proceedings.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} According to Irani’s complaint, on or about March 27, 2016, Irani was a
business invitee at a bowling alley owned and/or operated by AMF Bowling Centers, Inc.
(“AMF”). Irani alleged that AMF overserved alcoholic beverages to Saadati, who became
intoxicated, fell out of a chair onto Irani’s leg, and caused Irani serious injury. Irani asserted No. 23AP-654
a negligence claim against Saadati, and she sought recovery from AMF pursuant to the
Dram Shop Act, R.C. 4399.18.
{¶ 3} As reflected in the trial court decision and in the briefing in this court, Irani
originally filed this lawsuit on March 26, 2018, in case [CITATION], in the Franklin
County Court of Common Pleas. Saadati and AMF filed answers in case [CITATION]
and conducted discovery. AMF moved for summary judgment. On the date Irani’s
memorandum in opposition was due, she moved for an extension of time to respond to
AMF’s motion. The trial court granted Irani’s motion. On February 7, 2019, Irani timely
filed her memorandum in opposition to AMF’s motion for summary judgment.
{¶ 4} On March 8, 2019, while the motion for summary judgment was pending,
Irani moved to continue the trial date, which the original case schedule had set for
March 25, 2019. Irani requested the continuance so she could complete a scheduled round
of treatment for her leg injury. The trial court responded by vacating the trial date.
{¶ 5} On August 29, 2019, the trial court issued a decision and entry that granted
AMF’s motion for summary judgment.
{¶ 6} On September 20, 2019, Saadati filed a motion seeking to exclude from the
trial medical records and bills that Irani did not disclose to Saadati until after August 14,
2019. Saadati complained that his expert witness did not have sufficient time to review the
documents before his deposition, scheduled for September 26, 2019. Saadati also protested
that Irani was late in turning over these documents, given that trial was scheduled for
October 7, 2019.
{¶ 7} On September 25, 2019, shortly before the scheduled trial date, Irani
dismissed the complaint in case [CITATION], without prejudice, by filing a notice of
dismissal pursuant to Civ.R. 41(A)(1)(a).
{¶ 8} On August 31, 2020, Irani refiled essentially the same complaint against
Saadati and AMF in [CITATION]. The trial court issued an original
case schedule that set March 15, 2021 as the date for the supplemental joint disclosure of
all witnesses. On that date, Irani disclosed several medical experts, including Dr. Robert
Magnussen, Irani’s treating orthopedist, and Dr. Scott Olenick, Irani’s treating
psychologist. Regarding both Dr. Magnussen and Dr. Olenick, Irani’s disclosure stated,
“This expert is a treating physician rather than a retained expert, who will be asked to testify No. 23AP-654
consistent with the opinions and facts set forth in the treatment records of this treating
physician.” (Mar. 15, 2021 Pl.’s Disclosure of Witnesses at 3-4.) Irani did not identify any
retained medical experts in her supplemental disclosure of witnesses.1
{¶ 9} On May 24, 2021, the trial court issued an entry granting the parties’ joint
motion to continue the case scheduling deadlines. The trial court rescheduled the trial date
for January 31, 2022.
{¶ 10} On October 28, 2021, Irani voluntarily dismissed her claims against AMF.
{¶ 11} On December 17, 2021, Irani belatedly disclosed a retained expert witness,
Dr. Timothy Lubenow. Saadati immediately moved the trial court to exclude the expert
witness due to the untimely disclosure. In her motion, Saadati contended that she had
expended considerable resources to prepare for trial already. She pointed out that her
expert had just reviewed approximately 1,000 pages of supplemental discovery responses
that Irani had only produced five months previously. In response to this motion, Irani
proposed that the trial court extend the case scheduling deadlines to allow time for Saadati
to review and decide how to respond to Dr. Lubenow’s report.
{¶ 12} The trial court did not immediately rule on the motion to exclude
Dr. Lubenow. Instead, on January 10, 2022, the trial court issued an entry vacating the
previously scheduled pre-trial and trial dates. The entry explained that the Franklin County
Court of Common Pleas had limited the number of jurors entering the courthouse due to
the COVID-19 pandemic, and thus, the court had instituted a rotating schedule for all jury
trials. The trial court had to vacate the parties’ trial because the court was not available for
trial on January 31, 2022. Ultimately, the trial court rescheduled trial for October 17, 2022.
{¶ 13} On September 16, 2022, the trial court issued a judgment entry granting
Sadaati’s December 17, 2021 motion and excluding Dr. Lubenow from testifying at trial.
The trial court ruled that:
Here, it is without question that Plaintiff’s disclosure of
Dr. Lubenow as an expert witness was untimely and Plaintiff
has admitted as much. The Court is not convinced by any of
Plaintiff’s justifications for this tardiness and cannot find that
good cause existed for the late disclosure. Thus, the late
disclosure constitutes a violation of the Local Rules. Due to the
1 An expert is retained if he or she “comes to the case as a stranger and draws the opinion from facts supplied
by others, in preparation for trial.” [CITATION]. When an expert is part of the ongoing sequence of events, his opinion testimony is not retained. Id. No. 23AP-654
belated disclosure and the prejudice it would cause to
Defendant, the Motion to Exclude is GRANTED. Timothy
Lubenow, M.D. is excluded as an expert in this matter and is
not permitted to provide testimony at trial.
(Emphasis sic.) [CITATION])
{¶ 14} On September 27, 2022, the trial court issued an entry vacating the trial set
for October 17, 2022. The trial court rescheduled the trial for August 7, 2023.
{¶ 15} On June 13, 2023, Irani filed a motion asking the trial court to reconsider its
earlier decision excluding Dr. Lubenow as an expert witness. In the alternative, Irani
requested that the trial court permit her to call Dr. Lubenow as a rebuttal witness. In a
decision and entry dated July 11, 2023, the trial court denied Irani’s motion, stating,
“Dr. Lubenow will not be allowed to testify at the trial in this matter.” [CITATION])
{¶ 16} On July 12, 2023, Irani’s attorney caused subpoenas to issue to
Drs. Magnussen and Olenick commanding them to attend and give testimony at the
August 7, 2023 trial. Each subpoena directed the subpoenaed person to contact the law
firm of Irani’s attorney “to confirm appearance and for scheduling purposes.” (Emphasis
omitted.) [CITATION])
{¶ 17} On July 21 and July 23, 2023, Saadati and Irani submitted their respective
pre-trial statements. The parties primarily disagreed about Irani’s claim that she suffers
from Complex Regional Pain Syndrome (“CRPS”) and depression as a proximate result of
the incident at the bowling alley.
{¶ 18} At the July 24, 2023 pre-trial conference, Irani’s attorney told the trial court
that subpoenas to Drs. Magnussen and Olenick had been issued and he expected both
doctors to testify at trial. Subsequent to the pre-trial conference, Drs. Magnussen and
Olenick contacted the law firm of Irani’s counsel as advised by the subpoenas. Both doctors
expressed a preference for providing their trial testimony via deposition. Irani’s attorney,
therefore, deposed Dr. Olenick on August 1, 2023 and Dr. Magnussen on August 2, 2023.
At these depositions, Saadati’s attorney learned that Irani’s attorney had not offered to
compensate either witness for testifying.
{¶ 19} At an August 2, 2023 pre-trial conference, the trial court learned about the
completed deposition of Dr. Olenick and the upcoming deposition of Dr. Magnussen. The No. 23AP-654
[SEGMENT 2]
trial court stated that it was “troubled” because: (1) Irani’s attorney used Civ.R. 45
subpoenas, rather than deposition notices, to obtain the witnesses’ attendance at the
depositions, (2) Irani’s attorney did not offer to compensate Dr. Olenick prior to his
deposition, and (3) Irani’s attorney was deposing Drs. Olenick and Magnussen in an
attempt to secure expert testimony that the trial court believed it had excluded from trial.
(Aug. 2, 2023 Tr. at 23.) In response, Irani’s attorney protested he complied with the Civil
Rules of Ohio Procedure and court orders in deposing Dr. Olenick and scheduling
Dr. Magnussen’s deposition.
{¶ 20} On August 7, 2023, the scheduled trial date, the trial court began proceedings
by stating:
This matter is set for trial on today[,] however, over the past
four to five days there have been a series of developments that
the Court finds both challenging and concerning. And so what
I want to do before I address those issues that have risen over
the last four to five days, I think it’s really important for me to
read into the record kind of a procedural history and some
other information that will help to explain what it is that the
Court will do on today.
(Aug. 7, 2023 Tr. at 2-3.) The trial court proceeded to recount the procedural history of
both the original 2018 case and the refiled case. The trial court also summarized its issues
with the depositions of Drs. Magnussen and Olenick, and the court asked Irani’s attorney
to explain his decision-making regarding scheduling and conducting those depositions.
The trial court then announced that the trial would not occur that day, and instead, the
court would hold a hearing the next day so Irani could show cause why the court should not
dismiss her case under Civ.R. 41(B)(1).
{¶ 21} The show cause hearing occurred on August 8, 2023. On October 5, 2023,
the trial court issued a decision and judgment entry dismissing Irani’s complaint, pursuant
to Civ.R. 41(B)(1), for failure to prosecute. The judgment entry concludes that “Irani and
her counsel failed habitually in complying with the Rules of Civil Procedure and this Court’s
orders and, therefore, the Court hereby finds that this matter is DISMISSED WITH
PREJUDICE.” (Emphasis sic.) (Oct. 5, 2023 Order & Entry Dismissing Pl.’s Compl. with
Prejudice Pursuant to Civ.R. 41(B)(1) at 21.) No. 23AP-654
{¶ 22} Irani timely appealed to this court from the judgments issued on
September 16, 2022, July 11, 2023, and October 5, 2023.
II. ASSIGNMENTS OF ERROR
{¶ 23} Irani assigns the following errors on appeal:
[1.] The trial court abused its discretion by sua sponte setting a
show cause hearing and ultimately dismissing Appellant’s
Complaint with prejudice for failure to prosecute pursuant to
Civ.R. 41(B)(1), rather than empaneling a jury and proceeding
to trial when all parties and counsel presented themselves
prepared and with every intention of proceeding with trial.
[2.] The trial court abused its discretion by precluding retained
medical expert Timothy Lubenow, M.D. from testifying in
Appellant’s case in chief, despite a lack of prejudice to Appellee.
[3.] The trial court abused its discretion by precluding retained
medical expert Timothy Lubenow, M.D. from testifying as a
rebuttal witness at trial, in response to new opinions disclosed
by the defense medical expert during his video trial deposition.
(Emphasis sic.)
III. LEGAL ANALYSIS
{¶ 24} For purposes of clarity, we shall consider the assignments of error out of
order.
A. Second Assignment of Error – Exclusion of Retained Expert Witness
{¶ 25} In her second assignment of error, Irani argues that the trial court erred when
it excluded the testimony of her retained medical expert, Dr. Lubenow, due to untimely
disclosure. We disagree.
{¶ 26} The trial court excluded Dr. Lubenow as an expert witness because Irani
failed to comply with former Loc.R. 43 of the Franklin County Court of Common Pleas,
General Division.[CITATION] Under former Loc.R. 43.01, each party, “not later than the date for
disclosure designated in the Case Schedule,” was required to “serve on all parties and file
with the court a written disclosure of all persons with relevant factual or expert knowledge
whom the party reserves the option to call as witnesses at trial.” Parties were then required
[CITATION] No. 23AP-654
to file supplemental disclosures of witnesses by the date designated in the case schedule “of
all persons whose factual or expert knowledge did not appear relevant until the witnesses
were initially disclosed.” Former Loc.R. 43.02. Former Loc.R. 43.04 stated that “[a]ny
witness not disclosed in compliance with this rule may not be called to testify at trial, unless
the Trial Judge orders otherwise for good cause and subject to such conditions as justice
requires.”
{¶ 27} The admission or exclusion of evidence is generally within the discretion of
the trial court, so long as that discretion is exercised in line with the rules of procedure and
evidence. [CITATION]. Consequently, an appellate court
will not reverse a trial court’s decision to admit or exclude evidence absent an abuse of
discretion. [CITATION].
{¶ 28} In this case, Irani concedes that she did not timely disclose the identity or
opinions of her retained expert witness. She contends, however, that the trial court abused
its discretion by excluding her expert witness for her failure to comply with the disclosure
deadline. Relying on [CITATION], Irani
argues that an appellate court will not affirm the trial court’s exclusion of an expert witness
unless the opposing party is unfairly prejudiced by the belated disclosure of that witness.
{¶ 29} In [CITATION], the trial court excluded the testimony of the plaintiff-
appellant’s medical expert witness because the plaintiff-appellant failed to file the necessary
disclosures of witnesses. On appeal, this court agreed that the plaintiff-appellant did not
file any disclosures of witnesses. We determined, however, that the defendant-appellee was
otherwise apprised of the expert witness the plaintiff-appellant intended to use at trial
because the defendant-appellee received the plaintiff-appellant’s medical records in
discovery, which named all the plaintiff-appellant’s medical providers. The plaintiff-
appellant had informed the defendant-appellee she would call her medical providers as
witnesses, and the expert witness was one of the plaintiff-appellant’s medical providers.
Consequently, the defendant-appellee suffered little prejudice or surprise from the
plaintiff-appellant’s failure to file disclosures of witnesses. [CITATION]. This court thus
concluded the sanction of excluding the plaintiff-appellant’s expert witness was not No. 23AP-654
proportional to the violation, and the trial court had abused its discretion in not imposing
a less severe penalty. [CITATION] at ¶ 18-19.
{¶ 30} [CITATION] is distinguishable on its facts. Here, unlike [CITATION],
Dr. Lubenow was not involved in Irani’s medical treatment. Saadati was unaware of
Dr. Lubenow’s involvement in the case until the untimely disclosure by Irani,
approximately ten months after the supplemental witness disclosure date and two months
prior to the scheduled trial date. In [CITATION], the defendant-appellee knew that the
plaintiff-appellant intended to call the medical provider as a witness “well enough in
advance of trial to allow defendant to prepare to question plaintiff’s expert in deposition
testimony.” [CITATION] at ¶ 19. Irani understood that her late disclosure of Dr. Lubenow did not
give Saadati’s attorney this same opportunity, as she requested postponement of the trial
date to mitigate the “ ‘time crunch’ ” caused by the belated identification of Dr. Lubenow as
an expert witness. (Dec. 24, 2021 Pl.’s Memo in Opp. to Def.’s Mot. to Exclude at 4, quoting
the Dec. 17, 2021 email from Pl.’s attorney to Def.’s attorney.)
{¶ 31} Irani argues alternatively that any prejudice to Saadati from the late
disclosure of Dr. Lubenow was alleviated by the subsequent continuances of the trial date
and seven-month delay in ruling on the motion to exclude. Irani claims that even though
the disclosure was untimely, the subsequent delay of the trial gave Saadati sufficient time
to prepare for Dr. Lubenow’s testimony. We disagree.
{¶ 32} Prior to the time the trial court ruled on the motion to exclude, Saadati was
under no obligation to spend valuable time and resources preparing for an expert witness
who was not timely disclosed and who may not be permitted to testify. Moreover, when the
trial court granted the motion to exclude Dr. Lubenow’s testimony on September 16, 2022,
the trial date was a mere month away, on October 17, 2022. Thus, even though seven
months had passed since the parties had briefed the motion to exclude, there still existed
unfair prejudice to Saadati, i.e., insufficient time before trial to review Dr. Lubenow’s
opinion with her own expert and/or depose Dr. Lubenow. Although the trial court later
postponed the trial date, that postponement occurred after the court excluded
Dr. Lubenow’s testimony, so it could not factor into the court’s prejudice determination
when ruling on the motion to exclude. No. 23AP-654
[SEGMENT 3]
{¶ 33} Under the circumstances, we cannot say that the trial court abused its
discretion by excluding Irani’s expert witness, as the untimely disclosure of Dr. Lubenow
caused Saadati unfair prejudice. Given this unfair prejudice, the trial court did not err in
determining a lack of good cause existed to allow Dr. Lubenow to testify at trial.
Accordingly, we overrule Irani’s second assignment of error.
B. Third Assignment of Error – Exclusion of Retained Expert Witness as a
Rebuttal Witness
{¶ 34} In her third assignment of error, Irani argues that the trial court erred when
it denied her motion to allow her to call Dr. Lubenow as a rebuttal witness. We disagree.
{¶ 35} Rebuttal testimony is testimony “given to explain, refute, or disprove new
facts introduced into evidence by the adverse party; it becomes relevant only to challenge
the evidence offered by the opponent, and its scope is limited by such evidence.” State v.
[CITATION]. Generally, the admission or exclusion of rebuttal
testimony is a matter within the discretion of the trial court, and a ruling admitting or
excluding such testimony will not be reversed absent an abuse of discretion. [CITATION].
However, a trial court’s discretion
over the admission or exclusion of rebuttal testimony is not absolute. Id. Rather, “[a] party
has an unconditional right to present rebuttal testimony on matters which are first
addressed in an opponent’s case-in-chief and should not be brought in the rebutting party’s
case-in-chief.” [CITATION]. Consequently,
“a party possesses an unconditional right to present rebuttal testimony if: (1) the evidence
is not cumulative; (2) the evidence would not be appropriate for the party’s case-in-chief;
and (3) the evidence is first addressed in the opponent’s case-in-chief.” [CITATION].
{¶ 36} In this case, Irani contends that, consistent with his expert report,
Dr. Lubenow would testify that Irani: (1) suffers from CRPS as a result of the incident at the
bowling alley, (2) needs further treatment for CRPS, and (3) suffers from depression and
anxiety as a result of her injury and will likely need further treatment for that, as well. Not
only is this evidence appropriate for Irani’s case in chief, but it is also evidence she intended
to attempt to produce during her case in chief though the testimony of Drs. Magnussen and
====== end of Part of a Court Ruling ====== No. 23AP-654
Olenick. Therefore, Irani does not have an unconditional right to present Dr. Lubenow’s
testimony on rebuttal.
{¶ 37} Additionally, we note that this court has called into question whether
Phung’s “unconditional right” to present rebuttal testimony applies to a situation where a
party wishes to call an expert witness on rebuttal even though the trial court has previously
excluded the witness from testifying in the party’s case in chief because the party failed to
timely disclose the witness. [CITATION] In [CITATION], the Court of Claims excluded the plaintiff-
appellant’s expert witness due to the plaintiff-appellant’s failure to timely disclose the
expert and provide an expert report as required by a local rule. The plaintiff-appellant then
sought to call the excluded expert witness to give rebuttal testimony. The trial court refused
to allow the expert witness to testify on rebuttal.
{¶ 38} On appeal to this court, the plaintiff-appellant argued that the trial court
erred by excluding the testimony of its rebuttal witness. This court agreed with the
defendant-appellee that the local rule requiring disclosure made no exception for instances
where a party intends to call an expert witness on rebuttal. This court then addressed the
plaintiff-appellant’s contention that the Supreme Court of Ohio’s decision in Phung applied
to expert witnesses:
We find it unlikely that the Supreme Court of Ohio in Phung
meant to establish an absolute rule that a plaintiff in a civil case
may completely disregard a trial court’s local rules and orders
concerning the presentation of expert evidence simply because
the plaintiff purports to “reserve” the witness for possible
rebuttal purposes, and regardless of whether the plaintiff is
surprised by the evidence first produced by the defendant at
trial, or whether that evidence concerns expert witness
opinions as opposed to testimony concerning facts.
[CITATION] No. 23AP-654
{¶ 39} We have determined the untimely disclosure of Dr. Lubenow unfairly
prejudiced Saadati and the trial court did not abuse its discretion when it excluded Irani’s
expert witness from testifying in her case in chief. Consequently, we cannot say that the
trial court abused its discretion in prohibiting Dr. Lubenow from testifying as a rebuttal
witness. We thus overrule Irani’s third assignment of error.
C. First Assignment of Error – Failure to Prosecute
{¶ 40} In her first assignment of error, Irani contends that the trial court erred when
it sua sponte dismissed her complaint for failure to prosecute. We agree.
{¶ 41} Civ.R. 41(B)(1) provides that “[w]here the plaintiff fails to prosecute, or
comply with these rules or any court order, the court upon motion of a defendant or on its
own motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.” This
court reviews a trial court’s decision to dismiss a case under Civ.R. 41(B)(1) for an abuse of
discretion. [CITATION], ¶ 8. An abuse of discretion generally implies that the trial court’s attitude was arbitrary,
unreasonable, or unconscionable. Id. However, in [CITATION], the Supreme Court adopted a heightened standard of review for a dismissal
with prejudice pursuant to Civ.R. 41(B)(1):
[T]he extremely harsh sanction of dismissal should be reserved
for cases when [a party’s] conduct falls substantially below
what is reasonable under the circumstances evidencing a
complete disregard for the judicial system or the rights of the
opposing party. In other words, dismissal is reserved for those
cases in which the conduct of a party is so negligent,
irresponsible, contumacious or dilatory as to provide
substantial grounds for a dismissal with prejudice for a failure
to prosecute or obey a court order. Absent such extreme
circumstances, a court should first consider lesser sanctions
before dismissing a case with prejudice. It is a basic tenet of
Ohio jurisprudence that cases should be decided on their
merits. Thus, although reviewing courts espouse an ordinary
abuse of discretion standard of review for dismissals with
prejudice, that standard is actually heightened when
reviewing decisions that forever deny a plaintiff a review of a
claim’s merits.
(Emphasis added.) (Internal citations and quotations omitted.) Id. at 158. No. 23AP-654
{¶ 42} The trial court dismissed Irani’s case under Civ.R. 41(B)(1) because she
“failed habitually in complying with the Rules of Civil Procedure and [the] Court’s orders.”
(Oct. 5, 2023 Order & Entry Dismissing Pl.’s Compl. at 21.) In the analysis portion of its
decision, the trial court recounts those incidents that it believes constitute “Irani’s pattern
and practice of flouting her obligations to comply with the rules.” Id. at 15.
{¶ 43} Initially, we note that, in actuality, the trial court criticizes Irani for multiple
actions that do not amount in a violation of the Ohio Civil Rules of Procedure or a court
order. To justify a dismissal under Civ.R. 41(B)(1), the negligent, irresponsible, or
contumacious conduct of a party must result in the violation of a civil rule or court order.
[CITATION] We thus do not discuss or review the conduct the trial court criticizes that
does not arise to that level.
{¶ 44} The trial court first cites two violations of a civil rule and/or court order that
occurred in case No. 18CV-2610. In dismissing an action under Civ.R. 41(B)(1), a trial court
may consider the entire history of the litigation, including a previously filed, and voluntarily
dismissed, action. [CITATION] However, as Saadati points out, the record in case No.
18CV-2610 is not part of the record in the case currently on appeal. Nevertheless, an
appellate court may take judicial notice of public court records readily accessible on the
internet. [CITATION] Because the court filings in case
No. 18CV-2610 are publicly available on the internet, we take judicial notice of them.
{¶ 45} In the first incident the trial court refers to from case No. 18CV-2610, Irani
moved for an extension of time to file her memorandum in opposition to AMF’s motion for
summary judgment on the date her memorandum was due. The trial court granted the
extension, and Irani filed her memorandum in opposition within the time the trial court
provided. While Irani should have sought an extension earlier, she complied with Civ.R.
6(B) in moving for the extension and, because the trial court granted her the extension, she
timely filed her memorandum in opposition. We, therefore, conclude that no rule violation
occurred.
{¶ 46} In the second incident, Irani belatedly disclosed medical bills to Saadati after
the discovery cutoff date and, apparently, in violation of Civ.R. 34. Saadati moved to No. 23AP-654
[SEGMENT 4]
exclude evidence of the medical bills from trial. [CITATION], however, voluntarily dismissed her
complaint five days after [CITATION] moved to exclude the medical bills, thus mooting [CITATION]’s
motion and [CITATION]'s discovery violation.
{¶ 47} Turning to this case, the trial court found more violations of the civil rules
and/or court orders. First, [CITATION] failed to comply with the original case schedule when she
did not timely disclose her retained expert witness, Dr. Lubenow. The trial court, however,
sanctioned [CITATION] for this failure by excluding Dr. Lubenow from testifying.
{¶ 48} Second, the trial court noted that, according to [CITATION] was late in
providing discovery responses, an apparent violation of Civ.R. 33 and 34. Although [CITATION]
may not have timely produced the requested discovery, [CITATION] did not move to compel
production of that discovery. [CITATION] only informed the trial court of [CITATION]'s discovery lapse
to buttress her motion to exclude Dr. Lubenow’s testimony.
{¶ 49} Third, [CITATION] moved for an extension of time to file a memorandum in
opposition to a motion in limine. As the trial court did not grant [CITATION] this extension, she
filed her memorandum in opposition late, a violation of Civ.R. 6(C)(2).
{¶ 50} The trial court primarily dismissed [CITATION]'s case because [CITATION] supposedly
misused the court’s subpoena power. The trial court had multiple reasons for this
conclusion: (1) [CITATION] violated Civ.R. 45 by using subpoenas to obtain Drs. Magnussen’s and
Olenick’s attendance at their trial depositions, (2) [CITATION] violated court orders precluding
any expert witness from testifying by attempting to obtain Dr. Magnussen’s expert opinions
at his deposition, (3) [CITATION] implied to Drs. Magnussen and Olenick that they could be
subject to court sanction if they did not testify, and (4) [CITATION] failed to advise the doctors that
they were entitled to payment for their expert testimony. We will address each reason in
order.
{¶ 51} The subpoenas issued to the doctors commanded them to attend and give
testimony at a jury trial on August 7, 2023. However, at the doctors’ requests, [CITATION]'s
attorney deposed the doctors instead of insisting they appear at trial. In conducting trial
depositions of the doctors, [CITATION]'s attorney was complying with Civ.R. 45(C)(1), which
states, “A party or an attorney responsible for the issuance and service of a subpoena shall
take reasonable steps to avoid imposing undue burden * * * on a person subject to that
subpoena.” Moreover, Civ.R. 30(A) permits a party to use a subpoena to compel a non- No. 23AP-654
party witness’s deposition. [CITATION] (“The attendance of a witness deponent may be compelled by the use of subpoena as provided by Civ.R. 45.”). Consequently, Irani properly invoked Civ.R. 45 to obtain the testimony of Drs. Magnussen and Olenick at their depositions.
{¶ 52} Next, the trial court contends that Irani’s attorney elicited deposition testimony from Dr. Magnussen in violation of court orders “preclud[ing] [Irani] from providing expert testimony based on the failure to comply with the Court’s deadline for identification of an expert witness.” (Oct. 5, 2023 Order & Entry Dismissing Pl.’s Compl. at 20.) In its September 16, 2022 and July 11, 2023 decisions and entries, the trial court found that Irani failed to timely disclose Dr. Lubenow as an expert witness, and the court excluded his testimony. However, the September 16, 2022 and July 11, 2023 decisions and entries do not bar Irani from providing any expert testimony. The trial court’s decisions and entries do not mention, much less exclude, the testimony of Drs. Magnussen. Consequently, no court order precludes him from testifying as an expert witness.4
{¶ 53} The trial court also criticizes Irani for intimating to the doctors that if they did not appear for their depositions, they would be subject to court sanction. In fact, neither doctor testified that Irani’s attorney said or suggested to him that he could be subject to court sanction if he did not testify. Even if the attorney had said or suggested that, however, he would not be wrong. According to Civ.R. 45(E), “[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.” That warning appeared on the subpoenas served on the doctors and may have been why the doctors believed they had an obligation to testify.
{¶ 54} Finally, the trial court finds fault with Irani’s counsel for not advising Drs. Magnussen and Olenick that they were entitled to compensation for their expert testimony. Although Civ.R. 45 provides safeguards to protect unretained experts, those safeguards do not include a requirement that an attorney advise an unretained expert of a right to payment. Instead, an unretained expert who receives a subpoena to testify may seek to quash or modify that subpoena under Civ.R. 45(C)(3)(c) and (C)(5), which provide:
4 Tangentially, we note that Irani timely disclosed Drs. Magnussen and Olenick as unretained expert witnesses in her March 15, 2021 supplemental disclosure of witnesses. Therefore, former Loc.R. 43.03 does not bar their testimony. No. 23AP-654
(3) On timely motion, the court from which the subpoena was
issued shall quash or modify the subpoena, or order
appearance or production only under specified conditions, if
the subpoena does any of the following:
***
(c) Requires disclosure of a fact known or opinion held by an
expert not retained or specially employed by any party in
anticipation of litigation or preparation for trial as described by
Civ.R. 26(B)(7)(h), if the fact or opinion does not describe
specific events or occurrences in dispute and results from study
by that expert that was not made at the request of any party[.]
***
(5) If a motion is made under division (C)(3)(c) * * * of this
rule, the court shall quash or modify the subpoena unless the
party in whose behalf the subpoena is issued shows a
substantial need for the testimony or material that cannot be
otherwise met without undue hardship and assures that the
person to whom the subpoena is address will be reasonably
compensated.
{¶ 55} Civ.R. 45(C)(3)(c) is modeled after Fed.R.Civ.P. 45(d)(3)(B)(ii). 1993 Staff
Note, Civ.R. 45. Both the federal and state rule were adopted because compelling
unretained experts to give opinion testimony forces them to give up their intellectual
property without the opportunity to bargain for the value of their services. 1991 Notes of
Advisory Committee, Civ.R. 45(c)(3)(B)(ii) (because of later revisions to the Federal Rules
of Civil Procedure, the text originally located at Fed.R.Civ.P. 45(c)(3)(B)(ii) is now found at
Fed.R.Civ.P. 45(d)(3)(B)(ii)).
{¶ 56} Although there are scant Ohio cases interpreting Civ.R. 45(C)(3)(c), federal
precedent has developed applying Fed.R.Civ.P. 45(d)(3)(B)(ii). Generally, opinion
testimony is shielded by Fed.R.Civ.P. 45(d)(3)(B)(ii); factual information is not. [CITATION]; accord [CITATION] (“When * * * a party seeks
only factual information relating to an issue in the case, a witness cannot demand any
greater compensation than any other witness merely because he or she can claim some
expertise in a discipline or calling.”), [CITATION], quoting 1991 Notes of Advisory Committee, Civ.R. No. 23AP-654
45(c)(3)(B)(ii) (“Discovery of * * * purely factual information does not comprise the
‘intellectual property’ of [a witness] and is therefore not protected by Rule
45([d])(3)(B)(ii).”). Thus, under Fed.R. 45(d)(3)(B)(ii), the decision to quash is informed
by the degree to which the expert is called because of his knowledge of facts relevant to the
case rather than to give expert testimony. [CITATION] at 76. In other words, the court must parse
whether the subpoenaing party seeks testimony regarding information learned through the
witness’s direct observations or information learned through the witness’s own study. [CITATION]. We apply this same interpretation to
Civ.R. 45(C)(3)(c).
{¶ 57} Both Drs. Magnussen and Olenick could have moved, pursuant to Civ.R.
45(C)(3)(c), to limit their subpoenas so that they only had to testify regarding the facts, i.e.,
the specific events in dispute that they personally observed.5 Had the doctors filed such
motions, Irani would have had the opportunity to argue that she had a substantial need for
their opinion testimony, that she could not otherwise meet without undue hardship, and to
offer the doctors reasonable compensation for their opinion testimony. Because the
doctors did not move under Civ.R. 45(C)(3)(c) to modify the subpoenas, nothing limited
the scope of their depositions only to the facts. Additionally, the question of compensation
for Drs. Magnussen and Olenick for their expert testimony never arose under Civ.R. 45.
{¶ 58} Optimally, Irani would voluntarily pay Drs. Magnussen and Olenick for their
opinion testimony. Irani represented to the trial court that he has offered to do so.
However, Irani did not violate the civil rules by failing to advise Drs. Magnussen and
Olenick that they were due compensation for any expert testimony they gave in their trial
depositions.
{¶ 59} Having reviewed all the alleged violations of the civil rules and court orders
set forth by the trial court, we cannot conclude that Irani’s conduct evinces such a complete
disregard for the judicial system that dismissal is warranted. The trial court relied heavily
on Irani’s actions in deposing Drs. Magnussen and Olenick to justify the dismissal. Irani’s
actions, however, violated neither Civ.R. 45 nor a court order. Although Irani’s failure to
timely disclose Dr. Lubenow as an expert witness was a serious lapse, the trial court
[SEGMENT 5]
5 The subpoenas issued to Drs. Magnussen and Olenick set forth the text of Civ.R. 45(C)(3)(c), as required by
Civ.R. 45(A)(1)(c). No. 23AP-654
sanctioned Irani for that lapse by excluding Dr. Lubenow’s testimony. The remaining
violations of the civil rules and court orders do not amount to the type of misconduct that
merits the extreme sanction of dismissal.
{¶ 60} Given our standard of review, which requires heightened scrutiny of Civ.R.
41(B)(1) dismissals, we conclude it was not reasonable for the trial court to dismiss the case
on the eve of trial. Accordingly, we hold that the trial court abused its discretion by
imposing the most severe sanction of dismissal without first considering other available
sanctions. We thus sustain Irani’s first assignment of error.
IV. Conclusion
{¶ 61} For the foregoing reasons, we sustain Irani’s first assignment of error, and we
overrule Irani’s second and third assignments of error. Therefore, we affirm the Franklin
County Court of Common Pleas’ September 16, 2022 and July 11, 2023 judgments, and we
reverse the October 5, 2023 judgment. We remand this matter for further proceedings
consistent with law and this decision.
September 16, 2022 and July 11, 2023 judgments affirmed;
October 5, 2023 judgment reversed;
and cause remanded.
MENTEL, P.J., and EDELSTEIN, J., concur.
_____________
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Marjorie Jackson, :
Plaintiff-Appellee, : No. 23AP-325
(C.P.C. No. 22DR-1401)
v. :
(REGULAR CALENDAR)
Dwayne Jackson, :
Defendant-Appellant. :
D E C I S I O N
Rendered on May 7, 2024
On brief: Trolinger Law Offices LLC, and Christopher L.
Trolinger for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
EDELSTEIN, J.
{¶ 1} Defendant-appellant, Dwayne Jackson, appeals from the May 11, 2023
judgment entry and divorce decree granted by the Franklin County Court of Common Pleas,
Division of Domestic Relations. For the following reasons, we reverse and remand to the
trial court for further proceedings.
I. Facts and Procedural History
{¶ 2} Dwayne and plaintiff-appellee, Marjorie Jackson, were married in Columbus,
Ohio on September 24, 1994. The marriage produced one child, who was born on June 19,
2004. (May 3, 2022 Compl. at ¶ 2.) In 2022, Marjorie filed for divorce. In her complaint,
Marjorie asserted the parties owned two properties in Columbus: a residential property
located at 1970 Greenway Avenue North and a commercial property located at 997 Mount
Vernon Avenue. (Id. at ¶ 4.) No counterclaim was filed by Dwayne. Prior to the No. 23AP-325
commencement of trial, Marjorie moved for an order permitting the sale of the commercial
property, with the disposition of sale proceeds to be determined at a later date. (Aug. 9,
2022 Mot.) Dwayne filed his response to the motion the following day and asserted he
wanted to keep the property, therefore its disposition should be determined at the same
time as all other marital assets. (Aug. 10, 2022 Def.’s Resp. to Pl.’s Mot.) The motion was
dismissed as moot for failure to prosecute at the commencement of trial. [CITATION]
{¶ 3} Both parties filed pre-trial statements once the matter was scheduled for trial.
The statements differed on several notable issues, including whether the marriage’s
termination date should be the date of separation on January 8, 2021 (per Marjorie) or the
date of the final hearing (per Dwayne), as well as a property in West Virginia that Marjorie
listed as an asset but Dwayne did not. (Sept. 28, 2022 Pl.’s Pre-trial Statement at 2; Oct. 2,
2022 Def.’s Pre-trial Statement at 2.) The parties’ estimated valuations of the two
Columbus properties were fairly close, but both statements independently noted each of
the properties still required an appraisal. (Id.)
{¶ 4} Trial commenced on April 12, 2023. Both parties proceeded pro se. Under
its statutory mandate, the trial court was tasked with classifying property as either separate
or marital property, and, upon making such findings, determining an equitable division of
the property in accordance with R.C. 3105.171. Thus, the trial court was required to undergo
a fact-intensive inquiry before it could order the division of assets.
{¶ 5} At trial, Marjorie testified that she had submitted a complete list of all assets,
debts, liabilities, and income. Dwayne testified that he had not submitted a complete list.
As a result, he was not permitted to rely on his list during trial. [CITATION]
Marjorie and Dwayne both gave testimony about their relationship since she moved out of
their shared home on January 8, 2021. They affirmed they had lived separate and apart
continuously since the date she moved out. [CITATION]
{¶ 6} Neither Marjorie nor Dwayne hold college degrees but both are high school
graduates. [CITATION] Dwayne had begun a new position as a full-time manufacturing
operator at the time of trial, earning $20 an hour. [CITATION] Previously, he had
worked for a manufacturing company. Before trial, Dwayne submitted to the court that he
had an annual income of $57,000 in that position, but he testified at trial that he actually No. 23AP-325
earned closer to $30,000. (Tr. Vol. I at 64-65.) Dwayne testified he previously had a
pension that he withdrew in December 1996 when they purchased their house for $75,000.
(Tr. Vol. I at 68-69; Ex. 4.) He estimated he received somewhere between $32,000 and
$35,000, all of which was used for the down payment on the marital residence. (Tr. Vol. I
at 67-68.) Marjorie testified that she recently retired and took out a partial lump sum
option payment (“PLOP”) from her own pension, totaling $86,000 after taxes. She
currently receives a monthly pension of $3,700 that will continue for the rest of her life.
(Tr. Vol. I at 21, 48-49.)
{¶ 7} Marjorie used the PLOP to pay off her car loan and pay down a $108,000
home equity line of credit (“HELOC”), which she testified had a balance of $53,000 at the
time of trial. (Tr. Vol. I at 26.) The parties had taken out the HELOC to renovate the marital
residence and pay the remaining mortgage of their jointly owned commercial property.
(Id.) She estimated the remaining balance on the commercial property mortgage was
$23,000 before it was fully paid off with HELOC funds. (Tr. Vol. I at 6, 27-29.)[CITATION] Neither
party provided an estimated value for the commercial property.[CITATION] Both parties agreed the
marital residence was jointly owned and, at the time of trial, the property was not
encumbered by a mortgage or lien other than the HELOC. (Tr. Vol. I at 69.) Marjorie
testified that the residential property had been informally appraised at $141,000.[CITATION] (Tr. Vol.
I at 28-29.)
[CITATION] At multiple points during trial, Marjorie testified that the remaining mortgage on the commercial property
was paid off with funds from the HELOC. (See Tr. Vol. I at 6, 27-39.) We note that in the divorce decree,
the trial court addressed this issue in its findings of fact as follows: “Conflicting testimony was provided to
the Court regarding financial encumberment of the commercial property. Plaintiff testified that she
provided a lump sum payment in early 2023 to its mortgage but the amount remaining of the mortgage, if
any, remains unknown to this Court due to insufficient evidence presented.” (May 11, 2023 Divorce Decree
at 5-6.)
[CITATION] Dwayne asserts the trial court had access to a value for the commercial property because the 2022 property
tax bill was submitted into evidence at trial. The bill contains a total assessed value of $26,950, which it
describes as 35 percent of the property’s market value. Extrapolating from this, Dwayne asserts the market
value of the property is $77,000. (Appellant’s Brief at 14, citing Ex. 7.) While not expressly argued, we note
the same exhibit also contains a 2022 property tax bill for the residential property, which is assessed at
$26,430—a difference of only $520 between the taxable values. (Ex. 4.)
[SEGMENT 6]
[CITATION] In addition to Marjorie’s testimony, she introduced printouts from two real estate websites (Zillow and
Redfin) that included estimated prices for the residential property. Both printouts are dated August 23,
2022. The Zillow printout reflects an estimated value of $141,000, and the Redfin printout estimates the
home’s value at $206,143. (Tr. Vol. I at 28; Ex. 4.) No. 23AP-325
{¶ 8} The parties agreed to keep their respective vehicles. (Tr. Vol. I at 29-30.)
Both parties acknowledged owing income tax but were unaware of the specific amount at
the time of trial. (Tr. Vol. I at 32-33.) Similarly, Marjorie testified the parties owed property
tax on both the residential and commercial properties. Copies of the 2022 property tax bills
for both properties were introduced at trial and showed a delinquency of $2,060.72 for the
residential property and $4,045.52 for the commercial property. (Tr. Vol. I at 33-34; Ex.
7.)
{¶ 9} At trial, Dwayne testified about a $7,000 loan he took out in 2022 to renovate
the commercial property they had previously operated as a restaurant and bar. Marjorie
cosigned that loan. (Tr. Vol. I at 37-38.) The parties had previously held a liquor license
for the establishment, which Marjorie testified was in her name and had been either
cancelled or suspended for nonpayment approximately a year earlier. (Tr. Vol. I at 39-40.)
She estimated it would cost between $7,000 and $9,000 to reactivate the license. (Tr. Vol.
I at 42.)
{¶ 10} At the time of trial, Dwayne was residing in the marital home and Marjorie
was renting an apartment. (Tr. Vol. I at 67.) Regarding the personal property at the
residence, the parties stipulated the kitchen appliances would remain with the residence
and Dwayne would keep the remaining household items and furniture. They were unable
to estimate the value of these items when asked at trial. (Tr. Vol. I at 51-52.) The parties
did not have any joint accounts at the time of trial, but each separately had their own
checking and savings accounts. (Tr. Vol. I at 53-55.) Dwayne testified that during their
marriage, he borrowed money from his mother’s assets to assist with the parties’ shared
expenses like bills and mortgage payments. (Tr. Vol. I at 83-84.) He stated that, in total,
he borrowed $75,000 against his mother’s house and $7,000 against her life insurance
policy. (Tr. Vol. I at 84-85.)
{¶ 11} Following a two-day trial, the trial court entered a judgment entry and decree
of divorce on May 11, 2023. The entry first acknowledged that both parties testified and
submitted exhibits, all of which were admitted, and then recited the oral stipulations the
parties had reached at the beginning of trial. In relevant part, the trial court memorialized
that “[t]he parties separated on approximately January 8, 2021,” that since litigation
commenced, the parties’ only child had become a legal adult, and that “[t]he parties have No. 23AP-325
lived separate and apart without cohabitation and without interruption for a period of one
(1) year or more.” (May 11, 2023 Divorce Decree at 3-4.) Noting that several other matters
remained contested, the trial court proceeded to make findings of fact and order the
division of property in accordance with the findings. It is from this divorce decree that
Dwayne filed his appeal.
II. Assignments of Error
{¶ 12} Dwayne presents the following assignments of error for our review:
[I.] The trial court erred and abused its discretion in
determining a de facto termination date of marriage without
any justification or analysis contrary to R.C. 3105.171(A)(2)(b).
[II.] The trial court erred and abused [its] discretion by failing
to value the marital property and failing to order the property
sold and equally divided as the division as ordered was not
equitable.
[III.] The trial court erred and abused its discretion in failing to
value and equally and equitably divide plaintiff’s retirement
assets.
[IV.] The trial court erred and abused its discretion by failing
to make any required findings of fact and conclusions of law
regarding the equitability of the property division pursuant to
R.C. 3105.171(G) or make findings that the factors in R.C.
.171(F) were considered.
III. Discussion
A. Law and Standard of Review
{¶ 13} During a contested divorce, the trial court is charged with making an
equitable division of property between the spouses. R.C. 3105.171(B). Each spouse is
entitled to an equal division of the marital property. If the trial court finds an equal division
would be inequitable, it may divide the marital property to produce an equitable result after
considering all relevant statutory factors. R.C. 3105.171(C)(1). “Equality of distribution,
while an admirable goal in many situations, must yield to concerns for equity.” [CITATION]
{¶ 14} To craft this division, the trial court must first determine the duration of the
marriage because “[t]he duration of a marriage determines whether property is marital or No. 23AP-325
non-marital and establishes the appropriate dates for property valuation and division.”
[CITATION] “R.C. 3105.171(A)(2) authorizes a trial court, in the exercise of its sound discretion, to utilize a de facto date of termination of the marriage if such is equitable in a particular case.” [CITATION], citing [CITATION] We therefore review the selection of a de facto termination date for abuse of discretion. [CITATION] A trial court abuses its discretion when it acts in a manner that is
unreasonable, arbitrary, or unconscionable. [CITATION] “An abuse of discretion may also be found where a trial court ‘applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.’ ” [CITATION], quoting [CITATION]
{¶ 15} Once the marital period has been determined, the court must designate
property as either marital or separate. Subject to some exceptions, marital property
consists of all real and personal property, all interests in real or personal property, and all
appreciation on separate property acquired or occurring during the marriage. R.C.
3105.171(A)(3). If otherwise qualifying, marital property may include retirement benefits
that accrued during the marriage. R.C. 3105.171(A)(3)(a)(i). Separate property consists of
property acquired prior to the date of marriage, with non-marital funds after separation, or
through inheritance or gift during the marriage. R.C. 3105.171(A)(6); [CITATION] The
characterization of property as marital or separate is a factual inquiry for the trial court and
reviewed on appeal under a manifest weight of the evidence standard. [CITATION]
{¶ 16} Once property has been classified, the trial court must determine the value of
marital assets so it may determine an appropriate division. [CITATION] Most commonly, the valuation assigned to marital
property is the asset’s value at the time of divorce. [CITATION] However, a trial court
may select an alternative valuation date for a specific asset, provided it specifies the date
and explains its rationale. Id. If the provision of the divorce decree dividing an asset is
silent as to the valuation date, the marriage’s end date controls. Id. at ¶ 11. The reviewing No. 23AP-325
court examines the trial court’s valuations for abuse of discretion. [CITATION] at ¶ 25. The
trial court’s determination will not be disturbed on appeal if there is some competent,
credible evidence to support its valuation of an asset. [CITATION] at ¶ 10.
B. First Assignment of Error
{¶ 17} Dwayne’s first assignment of error relates to the trial court’s selection of a de
facto termination date for the marriage without first making the findings required by R.C.
3105.171(A)(2)(b). The duration of a marriage is defined in statute as “the period of time
from the date of the marriage through the date of the final hearing in an action for divorce.”
R.C. 3105.171(A)(2)(a). However, a trial court may select different dates to define the
duration of the marriage if the court finds using either or both dates would be inequitable.
R.C. 3105.171(A)(2)(b).
{¶ 18} This court has recognized several common factors used to determine the
appropriateness of a de facto date of termination. They include “whether the parties made
a clear and bilateral decision to separate, whether the marriage was irretrievably broken at
the time of separation, whether the separation was friendly, whether the parties engaged in
sexual relations after the date of separation, whether either party had begun to cohabitate
with another following separation, and whether the parties maintained separate financial
arrangements.” [CITATION] at ¶ 33. “As a general rule, trial courts use a de
facto termination of marriage date when the parties separate, make no attempt at
reconciliation, and continually maintain separate residences, separate business activities,
and separate bank accounts” some time before the date of the divorce decree. [CITATION] at ¶ 16.
{¶ 19} Here, the final court hearing occurred on April 13, 2023. However, the trial
court found “[t]he dates of the marriage are from September 24, 1994 to January 8, 2021.”
(Divorce Decree at 5.) During trial, the court asked both Marjorie and Dwayne to confirm
they separated on January 8, 2021, the day Marjorie moved out of the marital residence.
(Tr. Vol. I at 56-57.) The court also asked whether they engaged in sexual relations after
that date and whether they continued to present themselves as husband and wife. (Tr. Vol.
I at 57.) Marjorie testified they had one sexual encounter after January 8, 2021. (Tr. Vol. I
at 58.) She said they did not present themselves as husband and wife. (Tr. Vol. I. at 57.)
On the other hand, Dwayne responded, “No. I mean, yeah, I said she’s my wife.” (Tr. Vol. I No. 23AP-325
[SEGMENT 7]
at 57-58.) Marjorie also testified she cosigned for a loan Dwayne took out in 2022, though
a specific date was not provided. (Tr. Vol. I at 36-37.)
{¶ 20} The trial court did not provide its reasoning for deviating from the
presumptive termination date contained in R.C. 3105.171(A)(2)(a) or cite which equitable
factors were relied on to justify using the alternate date. While the transcript reflects some
indication of what testimony the trial court found persuasive, this reasoning is not set forth
in the decision and requires us to guess at the trial court’s logic. Moreover, the transcript
also contains testimony that conflicts with the selection of the de facto termination date,
including the cosigned loan and use of joint accounts, all of which occurred after the de
facto termination date. At trial, Dwayne introduced bank statements for a joint checking
account that listed both parties’ names as late as October 25, 2021. (Ex. B.) And so, without
any explanation, we must guess why the trial court did not find those facts indicative of an
intermingled life even after Marjorie moved out.
{¶ 21} Because the final hearing date is the presumptive termination date for the
marriage under R.C. 3105.171(A)(2), the use of an alternate date must be predicated on a
finding that using the presumptive date would be inequitable. R.C. 3105.171(A)(2)(b); [CITATION]. While the selection of an
alternate date is well within the trial court’s discretion, the decision may not be arbitrary or
without reason. See [CITATION] (“[A]
trial court may use a de facto termination of marriage date when the evidence clearly and
bilaterally shows that it is appropriate based upon the totality of the circumstances.”).
However, by failing to make an explicit finding that the date of the final hearing would be
inequitable and failing to provide any reasoning for its decision, the trial court’s use of a de
facto termination date was in error. See, e.g., [CITATION] (finding trial court did not abuse its discretion where court’s
journal entry reflected consideration of the appropriate factors). For the foregoing reasons,
we sustain Dwayne’s first assignment of error.
C. Second Assignment of Error
{¶ 22} In his second assignment of error, Dwayne asserts the trial court failed to
value the marital property, failed to order the property sold, and ultimately failed to order
an equitable division of the marital property. No. 23AP-325
{¶ 23} In contested divorce proceedings, after it has determined the duration of the
marriage, the trial court must classify property as either marital or separate. The court
must then make a division of the property based on the factors listed at R.C. 3105.171(F).
{¶ 24} When crafting the award, the trial court “must generally assign and consider
the values of marital assets in order to equitably divide those assets.” [CITATION]. “Although a trial court possesses
broad discretion to determine the value of marital property, it may not omit valuation
altogether.” [CITATION]. Nor may it assign an unknown value to an asset by reason of
insufficient evidence. [CITATION]. In such circumstances, the proper response is to instruct
the parties to provide the necessary evidence, not to forgo the valuation. [CITATION]. While we do
not prescribe any one specific method of appraisal, we do require the trial court to have a
rational evidentiary basis for making its findings. [CITATION]. Accordingly, our review is focused on evaluating how the court
arrived at a certain value. See id. at ¶ 38, citing [CITATION].
{¶ 25} When dividing marital property, the trial court must consider all relevant
factors, including those specifically enumerated in R.C. 3105.171(F). These factors include,
in relevant part, the liquidity of the property, the economic desirability of retaining an intact
asset, and the consideration of the respective tax consequences of the property division.
R.C. 3105.171(F). “An exhaustive itemization by the trial court of every factor set forth in
R.C. 3105.171(F) is unnecessary; however, the court’s decision must clearly indicate that the
factors were considered before the property division was made.” [CITATION]. The trial court must include in its final decision
written findings of fact to support its determination that the marital property has been
equitably divided. R.C. 3105.171(G).
{¶ 26} Having already addressed the duration of the marriage in Dwayne’s first
assignment of error, we next turn to whether the trial court appropriately classified
property as separate or marital as mandated by R.C. 3105.171(B).
{¶ 27} There are several instances in the divorce decree where assets or liabilities
are acknowledged but left undetermined, most notably with regard to retirement benefits.
As a general rule, interests in retirement benefits that accrue during the marriage are No. 23AP-325
considered marital property. See R.C. 3105.171(A)(3)(a)(i). Here, the trial court
acknowledged Marjorie retired after the selected de facto termination date, on December
30, 2022, received a PLOP in the net amount of $86,000, and will receive a monthly benefit
of $3,700 until death. (Divorce Decree at 7.) After making this finding, the decree is silent
as to whether the trial court found this is marital or separate property. Similarly, the trial
court noted that Dwayne “at one time had a pension with OPERS but did not testify to any
other interest” in any other retirement benefit. (Id.) At trial, Dwayne provided testimony
that he withdrew his OPERS pension in 1996 to make a down payment on their house,
which Marjorie confirmed. (Tr. Vol. I at 67-68.) While the trial court determined the house
is marital property, the decree is silent as to whether any portion of Dwayne’s pension
accrued before the marriage, and, if so, whether some of the pension funds used for the
down payment on the residential property are separate property. (Divorce Decree at 5.)
{¶ 28} These considerations are not inconsequential. “A person’s down payment on
a marital residence can retain its identity as separate property, as long as it is traceable.”
[CITATION] Moreover, the “commingling of separate property with other property of any type does not destroy the
identity of the separate property as separate property, except when the separate property is
not traceable.” R.C. 3105.171(A)(6)(b). If Dwayne’s pension funds for the down payment
accrued before the marriage and are traceable, Dwayne could have a separate property
interest in the marital residence that was not recognized in the divorce decree.
{¶ 29} We also note the trial court’s failure to qualify the parties’ personal debts as
either marital or separate. The trial court determined each party would bear responsibility
for any debts incurred in their individual names other than the cosigned loan from 2022.
(Divorce Decree at 11.) However, the trial court also made a finding that “[Marjorie] ha[d]
no known credit card debt at the time of the contested trial. [Marjorie] testified that she
paid off close to $50,000 in credit card debt when she received her PLOP after retiring in
late 2022.” (Divorce Decree at 7.) When making this finding, the trial court did not specify
whether the $50,000 debt or the PLOP funds used to reduce it were separate or marital
property. To illustrate this point, if, on remand, the trial court finds the credit card debt
was separate property, but Marjorie’s PLOP funds were marital, that would shift the
equities of the property division by a significant margin. No. 23AP-325
{¶ 30} With these issues in mind, we turn to the final responsibility of the trial court:
making an equitable division of marital property. We have previously held that a trial court
abuses its discretion by failing to consider the R.C. 3105.171(F) factors in making a division
of marital property. [CITATION] at ¶ 18. The divorce decree in this case is
replete with instances where the trial court acknowledged it had insufficient evidence to
make a valuation. For example, the trial court stated, “[I]t cannot determine the fair market
value of the marital residence.” (Divorce Decree at 5.) Similarly, the trial court found that,
due to a lack of evidence, “it cannot determine the fair market value of the commercial
property.” (Divorce Decree at 6.) In another example, the trial court addressed debts
incurred by Dwayne during the marriage by stating it was “unable to determine whether
the debt(s) are separate or marital debt.” (Divorce Decree at 8.)
{¶ 31} Despite these acknowledgments, the trial court proceeded to order a division
of property. Notably, the trial court awarded the marital residence to Marjorie and the
commercial property to Dwayne, with both parties bearing full responsibility for any
accrued tax arrearages on the respective properties. The trial court provided no explanation
for this division, despite recognizing both parties wished to retain the marital residence,
Dwayne had exclusively occupied the residence since January 8, 2021, and fair market
values for both properties could not be determined from the evidence presented at trial. In
their pre-trial statements, both Dwayne and Marjorie stated neither property had been
formally appraised and they could not estimate their value. (See Sept. 28, 2022 Pl.’s Pre-
trial Statement at 2; Oct. 2, 2022 Def.’s Pre-trial Statement at 2.) Apart from its recognition
that Marjorie informally valued the residential property at $141,000, the trial court
expressly stated it did not have any evidence to value either property. (See Divorce Decree
at 5-6.) Despite this, the court still issued a property award. This leaves the parties with an
unknown—but potentially consequential—disparity in the property award made by the trial
court, with no findings to justify the possible difference.
{¶ 32} While we recognize that a trial court has broad discretion in making divisions
of property, the parties’ failure to produce competent, credible evidence at trial does not
relieve the court of its statutory duties. We reiterate that an equitable division of property
begins with a valuation of the parties’ assets and liabilities. We also acknowledge that
“courts, including this court, have found some limitations to the general declaration that a No. 23AP-325
[SEGMENT 8]
trial court must value all marital property.” [CITATION], ¶ 19. But those instances are rare and do not involve the valuation of
“major” assets like the commercial and residential properties at issue in this case. Id.
Regardless of what evidence the parties provide, a trial court must assign an appropriate
value to the major marital assets as part of its duties under R.C. 3105.171(G). [CITATION], ¶ 5.
{¶ 33} The properties the trial court stated it could not assign a value to but divided
nonetheless—the marital residence and the commercial property—were undisputedly
major assets of the marital estate. Nothing in the record demonstrates the properties were
of equal value, and the court did not account for other contributions to the marital estate
that could justify an unequal, but equitable, division. The court similarly failed to value the
marital and individual liabilities and instead ordered each party to be responsible for their
respective debts without explanation. This extends to the treatment of Marjorie’s $50,000
credit card debt, which she testified was paid off with her pension funds. Without any
analysis, the trial court’s decisions appear ill-supported by the evidence and the law.
{¶ 34} While we could piece together possible reasons for the trial court’s decisions
from the record, it is axiomatic that a court speaks through its journal entries. [CITATION], ¶ 4. And where the trial court
fails to “make written findings of fact that support the determination that the marital
property has been equitably divided,” it has not performed its statutory duty under R.C.
3105.171(G).
{¶ 35} Furthermore, while not acknowledged in the divorce decree, it was
undisputed at trial that Dwayne drew from his own pension at significant penalty in order
to provide the down payment on the marital residence in 1996. Likewise, while this was
recognized by the trial court, Marjorie used a portion of her pension payout to reduce the
HELOC loan, which the trial court recognized as marital debt. The trial court also broadly
held each party responsible for any individual debt, despite the express recognition that it
could not determine whether Dwayne’s debts were separate or marital. In contrast, the trial
court specified that Marjorie had no known individual debt at the time of trial, while
acknowledging she used a payment from her pension to satisfy personal credit card debt
incurred during the marriage. No. 23AP-325
{¶ 36} The trial court’s errors arose when it continued to divide the marital estate
after recognizing it was ill-equipped to do so. Because the court failed to classify all
disputed property as either separate or marital, failed to make an equitable distribution of
liabilities and assets based on appropriate valuations, and failed to demonstrate it
considered the applicable statutory factors through written findings of fact, the trial court
abused its discretion. Accordingly, we sustain Dwayne’s second assignment of error.
D. Third Assignment of Error
{¶ 37} In his third assignment of error, Dwayne asserts the trial court failed to value
and equally and equitably divide Marjorie’s retirement assets. While briefly discussed in
Dwayne’s second assignment of error, it is appropriate to address it here independently.
{¶ 38} In the divorce decree, the trial court found as follows with respect to Dwayne
and Marjorie’s retirement benefits:
Plaintiff retired on December 30, 2022 and received a partial lump
sum option payment (“PLOP”) from her Ohio Public Employees
Retirement System (OPERS) Pension. She received her PLOP in the
amount of $100,000 and, after taxes and associated fees, she received
a net amount of $86,000. Defendant signed off on Plaintiff’s
retirement prior to contested trial when he executed a “Spousal
Consent” form on October 3, 2022.
In addition to the PLOP, Plaintiff receives a net amount of $3,700.00
per month from her pension and will continue to receive until her
death.
Defendant testified that he at one time had a pension with OPERS but
did not testify to any other interest in any pension, profit sharing, IRA,
(K), deferred compensation, or other retirement plan(s).
[CITATION] (Divorce Decree at 7.) In addition to the testimony about each party’s respective retirement
interests, the record contains a copy of Marjorie’s Account Value letter from OPERS, dated
September 1, 2022, reflecting a retirement account value of $300,896.93 as of the letter
date and 33.35 years of total service credit as of July 30, 2022. (Ex. 5.) The court ordered
that each party “shall retain any and all interest in any pension, profit sharing, IRA, 401(k),
deferred compensation, or other retirement plan” that he or she currently holds. [CITATION] (Divorce
Decree at 9-10.) No. 23AP-325
{¶ 39} Pension and retirement benefits acquired by a spouse during the marriage
are generally considered marital assets subject to division. [CITATION]; see also R.C. 3105.171(A)(3)(a)(i). The Supreme Court of Ohio
has previously held that “[a] vested pension plan accumulated during marriage is a marital
asset and must be considered * * * in dividing marital assets and liabilities to ensure that
the result reached is equitable.” [CITATION]. “When distributing these marital assets, a trial court must apply its discretion based upon
the circumstances of the case, the status of the parties, the nature, terms and conditions of
the pension or retirement plan, and the reasonableness of the result.” [CITATION], citing [CITATION].
{¶ 40} A trial court must compute the non-employee spouse’s proportionate share
of the retirement benefit by calculating the ratio of the time employed while married to the
total amount of time employed. [CITATION]. This formula is often referred to as the
“coverture fraction.” [CITATION]. Once the
proportionate share is determined, the trial court may then proceed to dispose of the asset.
“The trial court should structure a division which will best preserve the fund and procure
the most benefit to each party.” [CITATION]. The particulars will depend on the
circumstances of each individual case—the trial court must attempt to preserve the asset’s
optimal value, disentangle the parties’ financial affairs, and structure an equitable division
of property from the entire marital estate, all without violating the terms and conditions of
the pension plan. [CITATION]. Other considerations include whether the
retirement benefit has vested or matured and whether there are other assets available to
offset the non-employee spouse’s proportionate share. [CITATION].
{¶ 41} Here, it appears from the divorce decree that the trial court treated Marjorie’s
pension as separate property. However, it is undisputed that some portion of Marjorie’s
retirement benefit accrued during the marriage and thus constitutes marital property. The
trial court erred when it failed to classify it as such and determine Dwayne’s proportionate
share before ordering its disposition. Accordingly, we sustain Dwayne’s third assignment
of error. No. 23AP-325
E. Fourth Assignment of Error
{¶ 42} In his final assignment of error, Dwayne asserts the trial court failed to make
any of the required findings of fact and conclusions of law as required by R.C. 3105.171(G)
or demonstrate it considered the factors in R.C. 3105.171(F) when dividing the marital
property. See [CITATION] at ¶ 18. As expressed in the foregoing analysis, we agree. “In
allocating property between divorcing parties, a trial court must indicate the basis for its
award in sufficient detail to enable an appellate court to determine whether the award is
fair, equitable, and in accordance with the law.” [CITATION]. If a trial court has insufficient evidence to make the
required valuations, the correct course of action in most circumstances is to order the
parties to produce additional evidence, not proceed to divide the parties’ major assets
without sufficient understanding of their value. See, e.g., [CITATION] at
¶ 24 (“[A] party’s failure to put on any evidence of value does not permit the court to assign
an unknown as the value of a marital asset.”).
{¶ 43} In addition to the trial court’s repeated acknowledgments that it had
insufficient evidence to value certain assets, the court also failed to justify its division of
property with written findings. See [CITATION] at ¶ 4; [CITATION] , 10th Dist. No.
06AP-516, 2007-Ohio-2239, ¶ 79 (“The objective of the findings of fact authorized by R.C.
3105.171(G) is to facilitate meaningful appellate review.”). Absent this necessary analysis,
we cannot conclude the trial court considered the statutory factors enumerated in R.C.
3105.171(F). More generally, it prevents us from determining whether the trial court made
an equitable division of the marital property. As such, we sustain Dwayne’s fourth
assignment.
IV. Disposition
{¶ 44} Having sustained Dwayne’s four assignments of error, we reverse the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
and remand the matter with instructions to the trial court to make the appropriate findings
of fact and conclusions of law, consistent with this decision.
[SEGMENT 9]
Judgment reversed;
cause remanded with instructions. Based on the provided part of the court ruling, there are no court ruling citations identified that require replacement. Therefore, the text remains unchanged:
====== Anonymized Part of a Court Ruling ======
No. 23AP-325
MENTEL, P.J. and BEATTY BLUNT, J., concur.
[CITATION]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ryan C. Sykes, :
Plaintiff-Appellee, :
No. 23AP-295
v. : (C.P.C. No. 21DR-3233)
Sarah Sykes, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 21, 2024
On brief: Grossman Law Offices, and John H. Cousins, IV,
for appellee. Argued: John H. Cousins, IV.
On brief: Woodford Sathappan McGee, Co., LPA, and
Hari K. Sathappan, for appellant. Argued: Hari K.
Sathappan.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
LELAND, J.
{¶ 1} This is an appeal by defendant-appellant, Sarah Sykes, from a judgment entry
and final decree of divorce entered by the Franklin County Court of Common Pleas,
Division of Domestic Relations.
I. Facts and Procedural History
{¶ 2} On September 15, 2021, plaintiff-appellee, Ryan C. Sykes, filed a complaint
for divorce against appellant. The complaint alleged that the parties were married on
April 8, 2006, and one minor child was born as issue from the marriage.
{¶ 3} On February 18, 2022, a magistrate of the trial court issued temporary orders
noting the parties had reached a partial agreement regarding custody and parenting time,
and that the remaining issues involved financial matters. The parties subsequently issued
pre-trial statements. No. 23AP-295
{¶ 4} On February 14, 2023, the trial court conducted a trial on the matter. On
April 20, 2023, the court filed a judgment entry in which it granted the parties a divorce
and valued and divided the marital assets, including the marital residence. As relevant to
the issues presented on appeal, the trial court noted in its findings of fact that “[t]he parties
are joint owners of one (1) parcel of real estate located [on] Alton Darby Creek Road,
Hilliard,” which was “purchased during the marriage on November 19, 2014, for
$273,452.00.” (Jgmt. Entry/Decree of Divorce at 9.) For the year 2022, “the Franklin
County Auditor valued the marital residence at $285,900.00.” (Jgmt. Entry at 9.) On
January 20, 2023, an appraisal of the property was made by Brian Long, a witness on behalf
of appellant, who “was stipulated as an expert witness by both parties at contested trial.”
(Jgmt. Entry at 9.) Long appraised the marital residence “for $535,000.00.” (Jgmt. Entry
at 9.)
{¶ 5} The trial court determined “the marital property shall be valued at $440,000
to reflect the current real estate market.” (Jgmt. Entry at 9.) The court awarded the marital
residence to appellee, ordering him to “refinance the current loan on said real property or
obtain an additional loan to satisfy the equity provisions.” (Jgmt. Entry at 27.) The court
further held that “[t]he equity in the real property subject to equitable division is $182,428,”
and the parties “shall equally (50-50) divide and receive the equity in the residence.” (Jgmt.
Entry at 28.)
II. Assignments of Error
{¶ 6} Appellant appeals and assigns the following two assignments of error for our
review:
[I.] The trial court erred to the material prejudice of Defendant
in finding that [the residence] should be valued at $440,000 to
reflect the current real estate market.
[II.] The trial court erred to the material prejudice of Defendant
in ordering that the marital equity in [the residence] subject to
division is $182,428.00.
III. Analysis
{¶ 7} Appellant’s assignments of error are interrelated and will be considered
together. Under these assignments of error, appellant challenges the trial court’s valuation No. 23AP-295
of the marital residence, asserting the court assigned a “middle of the road” value to the real
estate without a proper evidential predicate. (Appellant’s Brief at 3.) Based on her
assertion the trial court erred in valuing the property, appellant further argues the court’s
calculation of the marital equity in the residence was in error.
{¶ 8} In a divorce proceeding, a trial court “is required to determine what
constitutes marital property and what constitutes separate property.” [VACHERESSE v. PAULCHEL, 10TH DIST. NO. 22AP-583, 2023-OHIO-3226, ¶ 13, CITING R.C. 3105.171(B)]. In
“making such determinations, the trial court must divide the marital and separate property
equitably, between the spouses, in accordance with R.C. 3105.171.” Id., citing R.C.
3105.171(B). In deciding on an appropriate division, “the trial court must value the marital
property.” Id. at ¶ 14. In general, “[a] domestic relations court enjoys broad discretion in
valuing and fashioning a division of marital property.” Id. at ¶ 15. In allocating marital
property, a trial court “must indicate the basis for its award in sufficient detail to enable an
appellate court to determine whether the award is fair, equitable, and in accordance with
the law.” [CITATION], citing [CITATION]. A
reviewing court “will uphold a trial court’s valuation and division of property absent an
abuse of discretion.” [CITATION], citing [CITATION].
{¶ 9} In a similar vein, “a trial court generally has broad discretion to develop some
measure of value.” [CITATION] at ¶ 21. Even though “ ‘ “a trial court enjoys broad discretion
in determining the value of a marital asset, such discretion is not without limit.” ’ ” Id. at
¶ 22, quoting [CITATION], quoting [CITATION]. In this respect,
“ ‘[a] trial court’s assignment of an asset’s value must be based upon competent, credible
evidence,’ meaning ‘evidence that is both competent, credible evidence of value and a
rational basis upon which to establish the value.’ ” Id., quoting [CITATION]. Thus, “ ‘[a] trial court must have a rational
evidentiary basis for assigning value to marital property.’ ” Id., quoting [CITATION].
Where expert testimony is admitted “as to property values, the court may believe all, part, No. 23AP-295
or none of the expert’s testimony.” [CITATION] at ¶ 18, citing [CITATION] at ¶ 12, citing
[CITATION]. Finally, “ ‘ “[a]n appellate court’s duty is not to require the adoption of any particular method of valuation, but to determine whether, based upon all the relevant facts and circumstances, the court abused its discretion in arriving at a value.” ’ ” [CITATION] at ¶ 23, quoting [CITATION] at ¶ 26,
quoting [CITATION] at ¶ 38.
{¶ 10} In the present case, the parties presented the following testimony and
evidence at trial with respect to the value of the marital residence. Brian Long, a “certified
residential real estate appraiser,” testified on behalf of appellant. (Tr. Vol. 1 at 19.) Long
was “contacted” by appellant “to provide a current appraisal on the subject property,”
located on Alton Darby Creek Road. (Tr. Vol. 1 at 20.) Long conducted an appraisal on
January 20, 2023, and prepared a residential appraisal report; that report was admitted at
trial as defendant’s exhibit D.
{¶ 11} Long testified he appraised the value of the property at $535,000 based on a
“sales comparison approach.” (Tr. Vol. 1 at 21.) In performing that appraisal, Long used
four comparable residential sales and his report “spelled out how each comp was
weigh[ed].” (Tr. Vol. 1 at 21.) Outlining the steps involved in his appraisal, Long stated he
first “inspect[ed] the subject property” to “determine the square footage, room count,
general conditions.” (Tr. Vol. 1 at 22.) He then “pull[ed] the comparable sales in the area.”
(Tr. Vol. 1 at 22.) According to Long, “[a]ll of the comparable sales are located within the
marketplace and the Hilliard School District.” (Tr. Vol. 1 at 22.) Long “put those
comparable sales onto a grid and adjust[ed] to either negative or positive for differences
between that sale and the subject property.” (Tr. Vol. 1 at 22.) After obtaining a “value
range,” he then “weigh[ed] the comps and [came] up with the value of $535,000.” (Tr. Vol.
1 at 22.) Long described the subject residence as a “straightforward property,” stating “[i]t
wasn’t unique in any way, not excessive acreage or square footage.” (Tr. Vol. 1 at 23.) On
cross-examination, he stated three of the comparable sale properties were located between
1.84 and 3.54 miles of the marital residence, and the fourth property was located “just under
a mile” from the subject property. (Tr. Vol. 1 at 27.) No. 23AP-295
[SEGMENT 10]
{¶ 12} Appellee testified on his own behalf, stating he had resided at the marital
residence since November 2014. At trial, appellee identified plaintiff’s exhibit No. 2 as a
copy of the “Franklin County Auditor’s website for our home.” (Tr. Vol. 1 at 71.) The
auditor’s 2022 appraised value of the residence was $285,900. Appellee testified he was
requesting the court to award him the marital residence and to value the property based on
the Franklin County Auditor’s 2022 tax valuation. Appellee related that, during the
marriage in 2019, appellant had challenged the auditor’s valuation and assessment of the
marital residence.
{¶ 13} When questioned on direct examination, appellee testified he would not sell
the residence for $200,000, nor would he sell it for $250,000, stating that $285,900 would
be close to what he would consider as a selling price for the property. Appellee did not wish
to sell the residence at this time because the house was important to his son who “does not
want to move.” (Tr. Vol. 1 at 73.)
{¶ 14} On cross-examination, appellee acknowledged he and appellant purchased
the marital residence for the amount of $273,452 on November 19, 2014. Appellee stated
he would be willing to sell it for $285,900 “[i]f I had to,” and he believed that amount
constituted a fair current price. (Tr. Vol. 1 at 104.)
{¶ 15} Appellant testified on her own behalf. In May 2022, appellant moved to
Florida, where she is currently employed as a “senior property manager.” (Tr. Vol. 2 at
229.) Appellant testified she wanted the court to value the marital residence at the amount
determined by her appraiser (Long), further stating she would not have accepted an offer
to sell the house for $285,000. On cross-examination, appellant acknowledged she
challenged the auditor’s tax appraisal of the marital residence in September 2020.
According to appellant, she was not “arguing for any specific value, just the lowest as
possible * * * for tax purposes.” (Tr. Vol. 2 at 255.)
{¶ 16} As noted, appellant asserts on appeal the trial court erred in picking a “middle
of the road” estimate between the two values presented by the parties. In support, appellant
relies in part on [CITATION]. Under the facts of that case, the parties were granted a divorce and the primary issue on appeal
involved the trial court’s valuation of the appellant’s business. At trial, the appellee No. 23AP-295
presented the testimony of an expert who valued the business at $280,586, while the
appellant’s expert valued it at $51,257. The trial court “concluded that the business was
worth $125,000, and awarded it to [the] appellant.” [CITATION]
{¶ 17} On appeal, the appellant asserted the evidence did not support a valuation of
$125,000; the reviewing court agreed, noting that “in obtaining a valuation, the judge or
trier of fact must have before it sufficient evidence to justify or support the dollar figure it
obtains.” [CITATION] Specifically, the court held: “[I]f the trial court summarily arrives at a
valuation of * * * property, even though between the two extremes of the opposing parties’
witnesses, without a proper evidential predicate, such would be error. * * * To achieve a
middle of the road estimation without some basis for such an adjustment from one extreme
or the other would constitute error as not being supported by the evidence.” [CITATION]
{¶ 18} In addressing the record evidence before it, the court in [CITATION] concluded
that, where “[the] appellant’s expert valued the business at $51,257,” and the appellee’s
expert “indicated it was worth $280,586,” the “remaining testimony [was] insufficient to
support a finding of $125,000” as “[n]either party presented evidence which would either
increase the value by approximately $75,000 or decrease the value by $155,000.” [CITATION]
Finally, the court observed, the trial court “failed to explain how it obtained the value it
did,” and therefore “the court’s conclusion is not supported by any evidence which would
permit a valuation of $125,000.” [CITATION]
{¶ 19} Appellant argues that numerous Ohio appellate courts have rendered
holdings similar to [CITATION], including the following cases she cites in support: [CITATION] (finding trial court “was not free to choose
a value between the two extremes” where record “only contained evidentiary support for
the zero value and the $ 150,000 value” provided by the two experts); [CITATION] (noting “trial court errs and abuses its discretion if it ‘summarily
arrives at a valuation of an asset or property, even though between two extremes of the
opposing parties’ witnesses, without a proper evidential predicate’ ”); [CITATION] (where one party valued business at $1 million and
another valued it at only $100, basis of trial court’s valuation at $20,000 “not sufficiently No. 23AP-295
detailed to enable this court to determine that it is not unreasonable, arbitrary, or
unconscionable”); [CITATION] (where plaintiff testified that value of home furnishings was $30,000, trial court’s valuation of furnishings at $2,500, where it “did not explain how or why it arrived at the $2,500 figure,” not supported by credible evidence); [CITATION] (where appellee presented uncontradicted testimony as to value of property, deviation from values by magistrate and trial court without explanation leads to conclusion “the assigned value is arbitrary”); [CITATION] (where only appraisal at hearing valued marital property at $151,000, trial court’s valuation of property at $115,000, in which it “failed to explain how it assigned the value,” not supported by any evidence to permit such valuation).
{¶ 20} In response, appellee argues the trial court did not merely pick a midpoint
between the auditor’s value of $285,900 and Long’s appraisal of $535,000. Appellee
maintains the trial court was free to adjust the auditor’s value or to average it based on other
evidence presented at trial, including the testimony of the parties and the comparable sales
data set forth in Long’s appraisal report.
{¶ 21} Appellee cites several cases in support, including the decision of the Second
District Court of Appeals in [CITATION]. Under the facts of that case, the appellee’s appraiser
testified the current fair market value of the marital property was $125,000, while the
appellant’s appraiser opined the fair market value of the property was $165,000. The trial
court awarded the property to the appellee, valuing it at $145,000. On appeal, the appellant
argued the trial court abused its discretion in valuing the marital property at $145,000,
asserting the court “was required to use one of the valuations that the parties’ separate
appraisers assigned to the property and could not simply average the two opposing values.”
[CITATION] at ¶ 14.
{¶ 22} The reviewing court found no abuse of discretion, holding “[t]he record
contains evidence that supports the court’s decision to reject the parties’ appraisers’
valuations and to instead choose a valuation in the middle.” [CITATION] at ¶ 21. More specifically,
the court noted the appellee “testified that the property needs several repairs,” including a
new furnace and septic system. [CITATION]. The reviewing court concluded the trial court could No. 23AP-295
have determined that the appellant’s appraisal (of $165,000), which “did not account for
any repairs to the property,” constituted “an appropriate starting point but then found that
due to the nature of the repairs, the fair market value of the property should be reduced by
$20,000.” Id. In this respect, “[t]he court was not required to accept either appraisal but
instead, was free to believe some, none, or all of the witnesses’ testimony.” Id.
{¶ 23} Appellee also cites [CITATION] in which the appellee testified she had reviewed information from the county
auditor’s website indicating that homes of comparable value to the parties’ marital
residence “sold for less than $90,000,” while the appellant presented an appraisal report
indicating the residence “was worth approximately $120,000.” The trial court accepted a
magistrate’s finding that the residence was worth $110,000 and, on appeal, the appellant
asserted the trial court erred and “should have used the valuation his third-party appraiser
assigned to the property.” Id. at ¶ 63. In [CITATION], the reviewing court affirmed the trial court’s
decision, finding competent, credible evidence to support the magistrate’s determination
that the property had a fair market value of $110,000. More specifically, while the appellee
“did not submit evidence regarding the value of the home, she indicated [the appellant’s]
high estimate was based upon homes far less comparable to the [marital] residence.” Id. at
¶ 67.
{¶ 24} As noted, the trial court in the present case found “the marital property shall
be valued at $440,000 to reflect the current real estate market.” (Jgmt. Entry at 9.) In its
decision, the court made findings that the county auditor had assessed the value of the
marital residence at $285,900 for tax year 2022, and that “the marital residence privately
appraised for $535,000.00” based on “[t]he appraisal * * * conducted by Brian Long,” who
“was stipulated as an expert witness by both parties.” (Jgmt. Entry at 9.) However, aside
from the above findings of the trial court, citing the conflicting valuations proffered by the
parties, the basis for the trial court’s valuation of the marital residence at $440,000 as
reflecting “the current real estate market” is unclear, as the court offered no further findings
or explanation. (Jgmt. Entry at 9.)
{¶ 25} On this point, we do not construe appellee’s brief as asserting the trial court
explained its reasoning in assigning a value of $440,000. Appellee suggests, however, “one No. 23AP-295
[SEGMENT 11]
example” as to how the court could have reached a close approximation to that number;
specifically, appellee argues, “the trial court could have averaged the auditor’s value
($285,900) with the nearest comparable sale in Long’s report ($575,000) and the most
recent comparable in Long’s report ($455,000) to arrive at a value of $438,633.”
(Appellee’s Brief at 10.) Appellee further argues the evidence before the trial court included
a sworn affidavit by appellant in which she opined the fair market value of the property in
2021 was $375,000.
{¶ 26} While the trial court could have reasonably relied on the comparables (or the
auditor’s value or the affidavit evidence) cited above in reaching its valuation, we are unable
to discern, in the absence of an explanation, how the court arrived at its valuation amount.
Although the trial court does not specifically reference the comparable sales data in its
decision, we note that the appraisal report (defendant’s Ex. D) prepared by appellee’s expert
(utilizing a sales comparison approach) identified four comparable property sales of
$650,000 (“Comparable 1”), $575,000 (“Comparable 2”), $455,000 (“Comparable 3”), and
$575,000 (“Comparable 4”), respectively and, therefore, the value assigned by the trial
court to the marital property was less than the sales price of each of the comparable
properties (and $15,000 less than the lowest comparable sale). Further, while the valuation
assigned by the trial court ($440,000) was within the range of the two valuations proffered
by the respective parties, i.e., $285,900 and $535,000, a trial court must still have “a
rational evidentiary basis for assigning value to marital property.” [CITATION] at ¶ 29. See
also [CITATION], 91 Ohio App.3d 570, 578 (8th Dist.1993) (“Even though the trier of
fact is granted much leeway in obtaining a value, it must do so based upon the evidence
before it,” and a court may not “summarily” arrive at a valuation of property, “even though
between two extremes of the opposing parties’ witnesses, without a proper evidential
predicate.”).
{¶ 27} Again, however, because the rationale for the $440,000 valuation is not
explained by the trial court, nor apparent from the record, we are unable to conduct a
meaningful review as to whether there was a “rational evidentiary basis” (or “evidentiary
predicate”) for that value. Correspondingly, we are unable to review the “ultimate issue” as
to whether the division of property was fair and equitable. [CITATION]
====== End of Part of a Court Ruling ====== No. 23AP-295
No. 14362 (Jan. 20, 1995) (trial court’s failure to explain how it arrived at valuation
“prevents our determination of the ultimate issue,” i.e., whether the award “produced an
equitable division of the marital estate”).
{¶ 28} We conclude, therefore, the matter should be remanded for the trial court to
articulate the basis for its valuation. See, e.g., [CITATION] (“when a trial court fails to indicate the basis of its valuation,” appellate
court “is precluded from being able to determine whether the property division was
equitable,” thereby requiring remand for trial court to “explain the impetus of its
valuations”); [CITATION] (remand required where “basis of the trial court’s determination as to
the value [of husband’s business] is not sufficiently detailed to enable this court to
determine that it is not unreasonable, arbitrary, or unconscionable”). In doing so, we make
clear we do not render a determination that the trial court, in fact, abused its discretion by
assigning an arbitrary valuation; rather, this matter is remanded for the limited purpose of
allowing the trial court to “indicate the basis of [that] valuation.” [CITATION].
{¶ 29} Accordingly, we sustain appellant’s first assignment of error to the extent
provided above. In light of our disposition of the first assignment of error, the issue raised
under appellant’s second assignment of error, in which she challenges the trial court’s
calculation of the marital equity in the property, i.e., a calculation dependent on the
ultimate valuation of the marital residence (and the mortgage balance), is rendered moot.
IV. Conclusion
{¶ 30} Based on the foregoing, appellant’s first assignment of error is sustained to
the extent provided, the second assignment of error is rendered moot, the judgment of the
Franklin County Court of Common Pleas is reversed, and this matter is remanded to that
court for further proceedings in accordance with law and consistent with this decision.
Judgment reversed; cause remanded.
DORRIAN and LUPER SCHUSTER, JJ., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Rachel M. Smith, :
Plaintiff-Appellant, : No. 22AP-720
(C.P.C. No. 20DR-1295)
v. :
(ACCELERATED CALENDAR)
Steven J. Smith, :
Defendant-Appellee. :
D E C I S I O N
Rendered on January 9, 2024
On brief: Grossman Law Offices, and John H. Cousins, IV,
for appellant. Argued: John H. Cousins, IV.
On brief: Eric R. Nordman, for appellee. Argued: Eric R.
Nordman.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
BOGGS, J.
{¶ 1} Plaintiff-appellant, Rachel M. Smith, appeals from the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, which granted
the Civ.R. 60(B) motion filed by defendant-appellee, Steven J. Smith, and vacated the
decree of divorce. For the following reasons, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Rachel and Steven were married in 2003 and have three children together.
After nearly 17 years of marriage, Rachel filed a complaint for divorce on April 16, 2020.
Rachel listed in her affidavit of property, in pertinent part, an Eastcleft Drive property titled
to both parties and four Edward Jones accounts (#...6503-1-6, #...9120-1-2, #...65-1-3, and No. 22AP-720
#...6188-1-8) without an indication of title.1 Rachel also filed a request for production of
documents that asked for Steven to provide records documenting gifts and inheritance as
well as any other documents he intended to introduce as evidence to support a claim of
separate property.
{¶ 3} Steven was personally served with the original summons and complaint on
April 23, 2020. He filed an answer and counterclaim asserting, in relevant part, that the
parties are joint owners of the Eastcleft Drive real property “subject to [his] claims of
separate property” and, likewise, the parties are joint owners of “certain assets that may
constitute marital assets subject to an equitable division” that are also “subject to his claims
of separate property.” ([CITATION] Answer & Countercl. at 1-2.) In his affidavit of
property, he listed the Eastcleft Drive property as jointly owned, but “Paid with
Inheritance.” ([CITATION] Aff. of Property, List of Separate Property at 1.) He lists two
Edward Jones accounts (#...6188-1-8, #...65-1-3) as titled in his name, and one Edward
Jones account (#...6503-1-6) as titled in Rachel’s name. In his “list of separate property,”
among other items, he listed three Edward Jones accounts (#...9120-1-2, #...90-1-4, #...02-
1-0) and two Vanguard accounts (#...4368, #...8668).
{¶ 4} Steven initiated notices to take deposition and subpoenas for the record
custodians of Edward Jones & Co., L.P., the Vanguard Group, and other accounts. Rachel
filed a reply to the counterclaim in which she denied Steven’s separate property claims
related to the Eastcleft Drive home and joint assets of the marriage.
{¶ 5} On September 2, 2020, following negotiations by the parties, the magistrate
issued temporary orders reflecting the parties’ agreement as to use of the residences and
cars, custody and parenting of the minor children and conditions of Steven’s visitation, and
payment of expenses, among other items. Both parties then submitted pre-trial statements
indicating “[s]eparate property” as a disputed issue. ([CITATION] Pretrial Statement of
Plaintiff at 1; [CITATION] Updated Pretrial Statement of Plaintiff at 1; [CITATION]
Second Updated Pretrial Statement of Pl. at 1; [CITATION] Pre-trial Statement of Def.
at 1.)
{¶ 6} In Rachel’s pre-trial statement, she argued an equitable division of marital
property would not be appropriate due to Steven’s financial misconduct. Her attached
[SEGMENT 12]
1 The parties and the trial court differed in how many numbers they used to describe the various accounts at
issue. For clarity, we will refer to the accounts consistent with how accounts are listed in the divorce decree. No. 22AP-720
preliminary estimated balance sheet listed the Eastcleft Drive property as jointly owned,
the Edward Jones account #...03-1-6 in her name, and five other Edward Jones accounts
in Steven’s name. She indicated the estimated balance sheet was compiled with current
information available and would be updated with supplemental discovery. In Steven’s pre-
trial statement he argued that an equal division of marital property would be equitable and
that a distributive award from his separate property or income was not appropriate. He did
not provide more information on the accounts.
{¶ 7} In March 2021, Rachel filed a motion for contempt against Steven asserting
he was not abiding by the magistrate’s temporary orders, including failing to pay child
support, failing to pay his own debts, and causing damage to the marital residence. She
additionally filed a motion for an order to compel discovery asserting Steven had been
unwilling to participate in discovery. Around the same time, Steven’s attorney moved,
successfully, to withdraw due to issues with Steven failing to appear at a status conference
and thereafter not communicating with the attorney.
{¶ 8} The magistrate granted Rachel’s motion to compel discovery. In doing so,
the magistrate noted that Steven failed to appear at the hearing on the motion. The
magistrate set a deadline for Steven to comply with discovery related to Rachel’s request
for production of documents and stated, “[f]ailure of [d]efendant to comply with this order
may result in the exclusion or limitation of evidence that he may present at trial.” (Aug. 5,
2021 Mag.’s Order at 1.) Steven did not file additional discovery and, as a result, Rachel
filed another motion for contempt citing Steven’s noncompliance with the court’s discovery
order and new allegations of non-compliance with the magistrate’s temporary orders. The
record reflects Steven did not appear for the October 2021 hearing on the motion for
contempt.
{¶ 9} The trial court set and held an “uncontested” final hearing on November 15,
2021 at 9:00 a.m. (Nov. 18, 2021 Jgmt. Entry — Decree of Divorce at 1.) Rachel appeared
and was represented by counsel, but Steven did not appear. During the hearing, Rachel
testified that she and Steven are incompatible and had been living apart for more than one
year, that Steven was served with notice of the hearing via a private process server, and that
she reviewed and approved the judgment entry-decree of divorce submitted for approval
by the court. Rachel agreed that she understood the submitted decree allocated her assets
and debts, and that she believed that allocation to be fair and equitable under the No. 22AP-720
circumstances. She asked the court to enter a judgment entry consistent with the submitted
decree. Rachel’s mother also testified at the hearing to confirm the parties are incompatible
and had been living separately.
{¶ 10} Following the testimony, the trial court determined it had jurisdiction and
grounds to proceed with the divorce. The judge remarked that Steven had been properly
served but did not appear for the hearing, and that this was consistent with his behavior
throughout the case: he “was difficult and dragging his feet,” not showing up for court
hearings, and “causing angst.” (Nov. 15, 2021 Tr. at 8.) With regard to the financial matters
and property division, the judge found “the terms and conditions are fair and equitable, not
necessarily equal,” and that she would adopt and incorporate those terms into the decree.2
(Tr. at 9.)
{¶ 11} The trial court filed the judgment entry — decree of divorce on November 18,
2021. In it, the trial court first noted that, despite having proper notice of the uncontested
hearing date and being personally served with summons and a copy of the complaint in
April 2020, Steven failed to appear. The trial court then terminated the marriage and
granted the divorce on the grounds of incompatibility. The trial court further ordered,
pertinent to this appeal, that: the parties each retain one of the real properties (Rachel was
awarded the Eastcleft Drive property while Steven was awarded another property); Rachel
retain certain accounts in her name free and clear of any claim from Steven, including the
Edward Jones Roth IRA #...03-1-6, and Steven retain other certain accounts in his name;
and Rachel receive one-half the value of the balance of five other retirement/investment
accounts (Edward Jones Roth IRA #...6188-1-8; Edward Jones account #...9120-1-2;
Edward Jones account #...10904-1-2; Edward Jones Traditional IRA #...65-1-3; and
Vanguard Annuity #...3877).
{¶ 12} Steven did not file an appeal challenging the decree of divorce. Instead, on
March 11, 2022, Steven filed, through new counsel, a motion to vacate judgment or
alternatively a motion for relief from judgment pursuant to Civ.R. 60(B). He argued his
motion was timely filed since he filed it roughly three and one-half months after the divorce
2 While the appellate record does not contain a copy of the proposed decree of divorce, based on the trial court
judge’s statements during the hearing, we assume the final decree reflects the allocations of assets in Rachel’s
proposed decree. No. 22AP-720
decree was filed, which “is more than reasonable, as it is well within the one-year time
parameter required for [Civ.R. 60(B)(1)-(3)] motions.” [CITATION].
{¶ 13} Steven’s motion contended he had a meritorious claim since all proceeds in
the six retirement/investment accounts at issue were inheritances he received from his
family, and therefore were his separate, non-marital assets under R.C. 3105.171(A)(6)(a)(i)
and (iii). In the same vein, he argued that the Eastcleft Drive property was purchased in
large part with his inheritance money. According to Steven, Rachel affirmatively
misrepresented and/or materially failed to disclose these facts, leading her to be improperly
awarded more than $500,000, which in Steven’s view is “manifestly inequitable” and
constitutes a fraud upon the court. [CITATION].
{¶ 14} Finally, Steven contended relief was warranted under Civ.R. 60(B)(1), Civ.R.
60(B)(3), Civ.R. 60(B)(4), and Civ.R. 60(B)(5). Specifically, he argued he was entitled to
relief from judgment on the ground of mistake, inadvertence or excusable neglect under
Civ.R. 60(B)(1) because, although he “received notice of the uncontested hearing date that
was set for November 15, 2021,” Rachel’s mother “contacted [him] and * * * falsely stated
* * * that the hearing date was not happening that day” and was being moved. [CITATION]. He further argued he was entitled to relief from judgment under Civ.R.
60(B)(3) due to fraud, misrepresentation, or other misconduct. Steven’s argument in this
regard reasoned that Rachel (purportedly) knew that the accounts at issue comprised his
inheritance and that the marital property was purchased largely with his inheritance money
and, therefore, constituted non-marital property. He argued that despite this knowledge
Rachel failed to disclose these material facts; falsely listed these assets as joint assets in her
affidavit of property (as opposed to his own affidavit of property that he says accurately
characterized the accounts); failed to correct the record at the final hearing; and presented
the court with a proposed divorce decree that disposed of his separate property as if it was
jointly owned. Steven additionally argued that Civ.R. 60(B)(4), permitting relief from
judgment when it is no longer equitable that the judgment should have prospective effect,
and Civ.R. 60(B)(5), permitting relief from judgment due to fraud upon the court, both
applied “[f]or reasons set forth above.” [CITATION].
{¶ 15} Rachel filed a memorandum contra asserting Civ.R. 60(B) relief is
inappropriate in this case. She contended Steven’s allegations regarding Rachel’s mother
deceiving him were false, attached text messages as proof, and argued that, regardless, it is No. 22AP-720
Steven’s responsibility to appear for a hearing for which he had notice. Rachel further
argued she did not engage in fraud, misrepresentation, and/or other misconduct and
emphasized that although Steven raised the issue before the court and legally had the
burden to prove his separate property, he completely failed to comply with discovery or
related court orders and refused to attend any hearing—even the final uncontested hearing.
Steven replied, contending Rachel largely failed to dispute that he had a meritorious claim
and had grounds for relief under Civ.R. 60(B)(3) and (B)(5).
{¶ 16} On November 2, 2022, the trial court granted Steven’s motion. While the
trial court agreed “the onus was on [Steven] to appear at the final hearing, and [Steven]
clearly lacked participation throughout the case,” it determined Steven nevertheless had a
“meritorious claim or defense” in the “claim of separate property and alleged inequitable,
and even unlawful, division made by [Rachel’s] Judgment Entry – Decree of Divorce.”
(Emphasis deleted.) (Nov. 2, 2022 Decision & Jgmt. Entry at 5.) Furthermore, the trial
court found that although Steven failed to show he was entitled to relief pursuant to Civ.R.
60(B)(1) due to mistake, inadvertence, or excusable neglect or Civ.R. 60(B)(5) due to any
other reason justifying relief, Steven did have grounds for relief under Civ.R. 60(B)(3) and
60(B)(4).
{¶ 17} Specifically, the trial court found Steven had grounds for relief under Civ.R.
60(B)(3) due to fraud, misrepresentation, or misconduct. In support of this conclusion, the
trial court found Rachel was “shifting * * * blame” in arguing Steven failed to provide
discovery, participate in the divorce case, or meet his responsibility and burden to prove his
separate property claims. (Decision & Jgmt. Entry at 7.) Regarding Steven meeting his
burden, the trial court stated, “[he] did assert that the questioned assets were his separate
property when he filed both his Affidavit of Property and Pre-Trial Statement” and noted
its decision was at least partially based on the alleged “windfall” at issue. (Emphasis sic.)
Id. at 7-8. As to Civ.R. 60(B)(4), the trial court determined Steven “does have grounds for
relief due to it not being equitable that the property division component of the Judgment
Entry – Decree of Divorce having prospective effect under Civ.R. 60(B)(4).” (Emphasis
deleted.) Id. at 8.
{¶ 18} Finally, the trial court cited to [CITATION] to conclude that, overall, Steven’s Civ.R. 60(B) motion should
be granted due to “doubt” in the case: No. 22AP-720
[SEGMENT 13]
It is important to conclude that, in pertinent part, the GTE
Automatic Electric Court states in its Syllabus of the opinion
that:
***
. Where timely relief is sought from a default judgment and
the movant has a meritorious defense, doubt if any, should be
resolved in favor of the motion to set aside the judgment so that
cases may be decided on their merits.
***
In this instant case, there is doubt. Therefore, the Court finds
[Steven’s] Motion * * * WELL TAKEN and GRANTED.
(Emphasis sic.) (Nov. 2, 2022 Decision & Jgmt. Entry at 10.) After granting the motion,
the trial court vacated the November 18, 2021 divorce decree, reinstated the complaint for
divorce, and set a pre-trial hearing date.
II. ASSIGNMENTS OF ERROR
{¶ 19} Rachel presents two assignments of error for our review:
First Assignment of Error: The trial court erred and
abused its discretion by granting [Steven]’s Motion for Relief
from Judgment.
Second Assignment of Error: The trial court erred and
abused its discretion by concluding that its decree of divorce is
akin to a default judgment.
III. STANDARD OF REVIEW
{¶ 20} An appellate court reviews a trial court’s decision to grant or deny a Civ.R.
60(B) motion under an abuse of discretion standard. [CITATION]. However,
“courts lack the discretion to make errors of law, particularly when the trial court’s decision
goes against the plain language of a statute or rule.” [CITATION]. Accordingly, a court of appeals reviews questions of law de
novo. [CITATION].
IV. LEGAL ANALYSIS
{¶ 21} Because the second assignment of error informs resolution of the first
assignment of error, we will address the assignments of error out of order. We will begin
by considering whether the trial court erred in relying on “doubt” to tip the scale in Steven’s
favor, followed by assessing whether the trial court abused its discretion in granting No. 22AP-720
Steven’s Civ.R. 60(B) motion under the three-prong [CITATION] test. As detailed in the sections below, we find merit to both assigned errors and conclude the trial court’s decision and judgment granting Steven’s Civ.R. 60(B) motion must be reversed on the facts of this case.
A. Whether the trial court erred in determining “doubt” must be
resolved in Steven’s favor (Second Assignment of Error)
{¶ 22} In her second assignment of error, Rachel asserts the trial court erred and
abused its discretion by treating its decree of divorce as a default judgment, and, as a result,
resolving any “doubt” in favor of Steven pursuant to paragraph three of the syllabus in [CITATION]. We agree.
{¶ 23} [CITATION] involved a movant’s Civ.R. 60(B) motion to obtain relief from
a default judgment issued by the trial court following the defendant’s failure to plead and
defend against the plaintiff’s action for non-payment on an account. Within this context,
the Supreme Court of Ohio states: “Where timely relief is sought from a default judgment
and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the
motion to set aside the judgment so that cases may be decided on their merits.” Id. at
paragraph three of the syllabus. In the instant case, the trial court found this legal principle
“important” to its decision, determined “there is doubt” in this case, and “therefore” found
Steven’s motion to be well-taken. (Decision & Jgmt. Entry at 10.)
{¶ 24} However, as pointed out by Rachel, there cannot be a “default” divorce
decree. “Civ.R. 55, the rule that governs default judgments, does not apply in actions for
divorce.” [CITATION], ¶ 7, citing Civ.R. 75. The [CITATION] court explained that the trial court has an independent judicial obligation to divide the marital and separate property equitably between the parties and to allocate the parental rights and responsibilities for the care of the minor children of the marriage in a manner consistent with the best interest of the children. Id., citing R.C. 3105.171(B) and R.C. 3109.04(A). “ ‘The performance of this independent judicial duty does not lend itself to judgment by default.’ ” Id., quoting [CITATION], ¶ 62.
{¶ 25} Because the cited provision in [CITATION] arises in the context of relief
sought from a default judgment, a procedure unavailable in divorce actions, we find the No. 22AP-720
trial court erred in resolving doubt in favor of Steven based on [CITATION] and granting
Steven’s motion on this basis. Accordingly, we sustain Rachel’s second assignment of error.
B. Whether the trial court erred and abused its discretion in
determining Steven is entitled to relief from the divorce decree
pursuant to Civ.R. 60(B). (First Assignment of Error)
{¶ 26} In her first assignment of error, Rachel asserts the trial court erred and
abused its discretion by granting Steven’s Civ.R. 60(B) motion for relief from judgment.
Civ.R. 60(B), states:
On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment,
order or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise or excusable neglect;
(2) Newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under
Rule 59(B);
(3) Fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an
adverse party;
(4) The judgment has been satisfied, released or discharged, or
a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or
(5) Any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for
reasons (1), (2) and (3) not more than one year after the
judgment, order or proceeding was entered or taken.
A motion under this subdivision (B) does not affect the finality
of a judgment or suspend its operation.
{¶ 27} In [CITATION], the Supreme Court set forth a three-part test to obtain
relief from judgment pursuant to Civ.R. 60(B). A movant must demonstrate that: “(1) the
party has a meritorious defense or claim to present if relief is granted; (2) the party is
entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the
motion is made within a reasonable time, and, where the grounds of relief are Civ.R.
60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was No. 22AP-720
entered or taken.” GTE Automatic at paragraph two of the syllabus. “[T]hese requirements
are independent and in the conjunctive.” Id. at 151. Accordingly, a movant’s failure to
satisfy any one of these requirements compels a court to deny the Civ.R. 60(B) motion.
[CITATION].
{¶ 28} The trial court in this case found Steven presented grounds for relief from the
divorce decree pursuant to Civ.R. 60(B)(3) and (4). We note Steven does not argue other
Civ.R. 60(B) grounds to support his motion apart from those found by the trial court. (See
Appellee’s Brief at 15-26 (arguing the trial court properly exercised its discretion in granting
his motion under Civ.R. 60(B)(3) and (4)); Appellee’s Brief at 25 (arguing against reviewing
whether the trial court properly considered Civ.R. 60(B)(5)3 and stating that section is
“moot”). As explained in detail below, because Steven failed under the second GTE
Automatic requirement to identify a legally cognizable basis for relief under Civ.R. 60(B),
the trial court abused its discretion in granting his motion.
. Civ.R. 60(B)(3) is not grounds for relief from the divorce decree
{¶ 29} “Civ.R. 60(B)(3) permits relief from judgment in cases of fraud,
misrepresentation, and other misconduct by an adverse party.” [CITATION],
¶ 28. “ ‘[T]he fraud, misrepresentation, or other misconduct contemplated by Civ.R.
60(B)(3) refers to deceit or other unconscionable conduct committed by a party to obtain a
judgment and does not refer to conduct that would have been a defense to or claim in the
case itself.’ ” [CITATION], quoting [CITATION], ¶ 13.
{¶ 30} Rachel contends she did not provide false testimony or conceal evidence but
instead disagreed with the separate property claim that Steven asserted and then later (in
her view) abandoned. According to Rachel, disagreeing with the opposing party’s
characterization of property in a divorce action does not support granting relief pursuant
to Civ.R. 60(B)(3).
[SEGMENT 14]
3 See [CITATION], quoting [CITATION], “[M]ultiple Ohio courts, including this court, have concluded that,
if the alleged fraud occurred between the parties, Civ.R. 60(B)(3) is the only ground upon which the aggrieved
party can seek relief from a prior judgment.”). No. 22AP-720
{¶ 31} Steven argues Civ.R. 60(B)(3) is appropriate here because Rachel wrongfully
obtained a “windfall” from his separate, non-marital family inheritance by taking “unfair
advantage of [his] absence[.]” (Appellee’s Brief at 21-23.) Specifically, Steven argues
Rachel’s fraud, misrepresentation, or other misconduct consisted of: (1) not meeting her
burden of proof under R.C. 3105.171 by failing to present any sworn testimony regarding
the characterization of the assets; (2) not testifying regarding the assets in order to obtain
a large amount of money she knew was Steven’s separate inheritance money; (3) not
denying in her memorandum contra to Steven’s Civ.R. 60(B) motion the veracity of
Steven’s separate property claim; (4) not denying she received discovery; and (5)
dishonesty by being “less than forthcoming” with the “whole truth.” (Appellee’s Brief at 23-
24.) He adds that it is inequitable to allow Rachel to retain the money Steven claims to be
inheritance.
{¶ 32} We agree with Rachel that the trial court erred by misconstruing the burden
and duties involved in a divorce action where the parties dispute the characterization of
disclosed property under R.C. 3105.171 and, particularly, where the proponent of a claim of
separate property fails to appear to present evidence. We further agree this error led the
trial court to abuse its discretion in granting Steven relief pursuant to Civ.R. 60(B)(3).
{¶ 33} First, having reviewed the record we do not identify any “fraud,
misrepresentation, or other misconduct” to support Steven’s Civ.R. 60(B)(3) motion. In a
divorce proceeding, “a spouse * * * must not substantially and willfully fail to disclose to the
trial court his or her marital property, separate property, and other assets, debts, income,
and expenses, irrespective of the other spouse’s knowledge of the existence of such items.”
(Emphasis added.) [CITATION], ¶ 58. R.C. 3105.171(E)(3) obligates each spouse to disclose in a full and complete manner
all marital property, separate property, and other assets, debt, income, and expenses “of
the spouse.” “Fraud on an adverse party may exist when, for example, a party presents
material[ly] false testimony at trial, and the falsity is not discovered until after the trial.”
(Emphasis added.) [CITATION], ¶ 15.
{¶ 34} However, a party to a divorce action does not “misrepresent” information or
commit “fraud” or “other misconduct” under Civ.R. 60(B)(3) by merely contesting the
categorization of disclosed assets as marital or separate property. Instead, potential conflict No. 22AP-720
among the parties regarding the categorization of disclosed property is accommodated
within the normal legal framework to determine the division of assets in a divorce case.
Specifically, the proponent of alleged separate property has the burden to prove an asset is
separate and not marital property, the trial court must then determine the issue for
purposes of the divorce decree, and an aggrieved party may pursue a direct appeal of that
issue. See [CITATION], ¶ 14, citing [CITATION], ¶ 33 (determining, in a direct
appeal of a divorce decree, “[w]hen the parties dispute whether an asset is marital or
separate property, the asset is presumed marital property unless proven otherwise”); [CITATION], ¶ 5 (stating, in assessing a direct appeal
of the issue, “[t]he party seeking to have an asset classified as separate property must show,
by a preponderance of the evidence, that an asset or set of assets is traceable and is
separate”; R.C. 3105.171(B) (the “[trial] court shall * * * determine what constitutes marital
property and what constitutes separate property” and “divide the marital and separate
property equitably between the spouses” and in accordance with the statute).
{¶ 35} In this case, Steven does not appear to argue that Rachel concealed any asset,
but that, essentially, she failed to acquiesce to his contention that certain disclosed assets
were his separate property by either labeling them Steven’s separate property (not just
titled to him, for example) or by failing to testify at the hearing, in his absence, that the
disputed assets were Steven’s separate property. Contrary to Steven’s position, Rachel was
entitled to contest his characterization of disclosed property, and it was Steven’s burden—
not hers—to put forth evidence showing he acquired the assets through inheritance, and
therefore constituted his separate property under the applicable statutory definitions.4
{¶ 36} Second, by statute, it is the trial court’s responsibility to ensure the parties
fully and completely disclose marital and separate property and that the record is sufficient
4 See R.C. 3105.171(A)(3)(a)(i) (defining marital property, as relevant to this case, to include “[a]ll real and
personal property that currently is owned by either or both of the spouses, * * * and that was acquired by either
or both of the spouses during the marriage”); R.C. 3105.171(A)(3)(b) (Marital property does not include
separate property); R.C. 3105.171(A)(6)(a)(“[S]eparate property” in pertinent part means “all real and
personal property and any interest in real or personal property that is found by the court to be any of the
following: (i) An inheritance by one spouse by bequest, devise, or descent during the course of the marriage”;
(ii) “Any real or personal property or interest in real or personal property that was acquired by one spouse
prior to the date of the marriage”; or “(iii) Passive income and appreciation acquired from separate property
by one spouse during the marriage.” R.C. 3105.171(H) (stating generally, “the holding of title to property by
one spouse individually or by both spouses in a form of co-ownership does not determine whether the property
is marital property or separate property.”). No. 22AP-720
to support issuing a divorce decree. R.C. 3105.171(E)(3) (“the [trial] court shall require
each spouse to disclose in a full and complete manner all marital property, separate
property, and other assets, debt, income, and expenses of the spouse.”) (Emphasis added.);
R.C. 3105.171(B) (stating trial court’s duty to divide marital and separate property equitably
between the parties); R.C. 3105.171(A)(6)(a) (stating separate property includes real or
personal property that is “found by the court” to be inheritance); [CITATION] (explaining,
by way of a direct appeal, that the performance of the trial court’s independent judicial duty
pursuant to R.C. 3105.171 precludes the court from issuing in essence a default judgment).
Therefore, Steven’s core argument, rather than demonstrating misconduct by Rachel,
implicates appealable issues concerning the adequacy of the final hearing and the trial
court’s acceptance of the proposed decree.
{¶ 37} Lastly, “Civ.R. 60(B)(3) applies when an adverse party’s fraud,
misrepresentation, or misconduct in obtaining a judgment has prevented the other party
from fully and fairly presenting its case.” (Emphasis added.) [CITATION], citing [CITATION],
[CITATION,] at ¶ 23. See [CITATION], at ¶ 37 (determining Civ.R 60(B)(3) did not apply where the evidence failed to
support a finding that the opposing party knowingly made any misrepresentation of
material fact with the intention of misleading appellant, with the result that appellant
actually relied on the alleged misrepresentation).
{¶ 38} A party is not prevented from fully and fairly presenting its case when that
party chooses not to participate in the action. [CITATION] at ¶ 18 (determining that relief from
judgment pursuant to Civ.R. 60(B)(3) was not warranted where the movant could have
presented his claims but chose not to participate in the action and, therefore, was not
prevented by an adverse party from fully and fairly presenting his case). See also
[CITATION], at ¶ 59 (explaining
that, generally, if a party fails to appear at the final divorce hearing, any deficiency claimed
by appellant is explained by appellant’s failure to appear at his final divorce hearing);
[CITATION] at ¶ 32 (determining that, where disclosed assets are at issue, a party that
chooses to “sit on [his or her] rights,” thereby “fail[ing] to take any action to insure [his or
her] own interests,” cannot then use equity considerations to support later relief under
Civ.R. 60(B).). No. 22AP-720
[SEGMENT 15]
{¶ 39} Here, the characterization of certain assets as marital or separate property
was openly disputed by the parties and was an issue that they asked the trial court to
resolve. Steven failed to appear at the hearing to present evidence despite having proper
notice, and, as a result, undisputedly did not meet his burden in proving the disputed assets
were separate property. In other words, Rachel did not prevent Steven from fully and fairly
presenting his case—his own actions did. Because Rachel’s alleged fraud,
misrepresentation, or other misconduct did not prevent Steven from adequately presenting
his case to the trial court, he is not entitled to relief from judgment under Civ.R. 60(B)(3).
[CITATION] at ¶ 30-31.
{¶ 40} Therefore, for all the considerations discussed, we conclude the trial court
abused its discretion in determining Steven was entitled to relief pursuant to Civ.R.
60(B)(3).
2. Civ.R. 60(B)(4) is not grounds for relief from the divorce decree
{¶ 41} Next, Rachel contends the trial court misinterpreted Civ.R. 60(B)(4), which
authorizes relief from a final judgment when “it is no longer equitable that the judgment
should have prospective application.” We agree.
{¶ 42} Civ.R. 60(B)(4) “was designed to provide relief to those who have been
prospectively subjected to circumstances which they had no opportunity to foresee or
control.” [CITATION]. To prevail under Civ.R. 60(B)(4),
the movant must show “ ‘specific events which occurred after the judgment which adversely
affected the fair application of the judgment.’ ” [CITATION], quoting [CITATION], ¶ 48 (“Relief under Civ.R. 60(B)(4) must be warranted by events
occurring subsequent to the entry of the judgment in question. * * * Events which occurred
prior to judgment cannot be relied upon as grounds to vacate the judgment pursuant to
Civ.R. 60(B)(4).”).
{¶ 43} In this case, the trial court determined Steven did have grounds for relief
under Civ.R. 60(B)(4) “due to it not being equitable that the property division component
of the Judgment Entry – Decree of Divorce having [sic] prospective application [due to
Steven’s allegations of Rachel committing fraud].” (Decision & Jdmt. Entry at 8.) Because
the trial court’s decision on Civ.R. 60(B)(4) is based on events that allegedly occurred prior No. 22AP-720
to the divorce decree, instead of events after the decree that made it inequitable to apply it
prospectively, the trial court committed a legal error constituting an abuse of discretion in
this regard.
3. Steven cannot use Civ.R. 60(B) as a substitute for an appeal
{¶ 44} Finally, we emphasize “[a] litigant cannot use a Civ.R. 60(B) motion for relief
from judgment as a substitute for a timely appeal.” [CITATION]. As previously indicated, the trial court’s division of assets
in a divorce decree, including its classification of assets as marital or separate property, is
an issue subject to direct appeal. See, e.g., [CITATION], 2020-
Ohio-5520, ¶ 1, 21-31 (assessing, in a direct appeal of a divorce decree, the trial court’s
characterization of property as marital as opposed to separate); [CITATION],
2023-Ohio-3226, ¶ 1, 11 (reviewing wife’s challenge to the trial
court’s division of assets in a direct appeal from divorce decree); [CITATION] at ¶ 1, 49
(assessing, in wife’s direct appeal of the divorce decree, whether the trial court properly
divided bank accounts and real estate after the wife failed to appear at the final hearing);
[CITATION], 2008-Ohio-6214, ¶ 1, 11-18 (considering direct
appeal from divorce decree and challenge to the trial court’s division of the parties’ property
following the appellant’s failure to attend the final divorce hearing to present evidence).
See also [CITATION] at ¶ 7 (challenging in a direct appeal from divorce decree the manner in
which the trial court conducted the hearing).
{¶ 45} If Steven disagreed with how the trial court conducted the final hearing, the
propriety of the trial court’s acceptance of the proposed decree, and/or the sufficiency of
the evidence to support the asset division, he should have directly appealed the final
judgment — decree of divorce to seek a reversal based on those issues. Steven is prohibited
from using Civ.R. 60(B) to avoid difficulties he would have faced on direct appeal due to
the unfavorable record resulting from his absence.
{¶ 46} For all the above reasons, we conclude Rachel has demonstrated the trial
court erred and abused its discretion in determining, under the second GTE Automatic
requirement, that Steven is entitled to relief under one of the grounds stated in Civ.R.
60(B). Because Steven failed to satisfy one of the GTE Automatic requirements, the trial
court was compelled to deny his Civ.R. 60(B) motion and abused its discretion in failing to No. 22AP-720
do so. [CITATION] at 151; [CITATION], 2018-Ohio-980, at ¶ 11.
Accordingly, we sustain Rachel’s first assignment of error.
V. CONCLUSION
{¶ 47} Having sustained Rachel’s two assignments of error, we reverse the judgment
of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment reversed.
MENTEL and EDELSTEIN, JJ., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
JESSE VON STEIN, et al., :
Appellants, : CASE NO. CA2023-04-040
: OPINION
- vs -
/11/2023
:
DAVID BRANDENBURG, et al., :
Appellees. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV 2020 07 1082
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellants.
Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, for appellees.
S. POWELL, P.J.
{¶ 1} Appellants, Jesse Von Stein and Jesse Von Stein dba Lake Bailee
Recreational Park, LLC, appeal from the decision of the Butler County Court of Common
Pleas granting summary judgment, monetary damages, and a permanent injunction in favor
of, and as requested by, appellees, David and Charlotte Brandenburg, and David
Brandenburg dba Brandenburg Trucking, LLC. For the reasons outlined below, we affirm. Butler CA2023-04-040
Facts and Procedural History
{¶ 2} This case involves a surface water dispute between neighboring property
owners who own real property located on Jackson Road in St. Clair Township, Butler
County, Ohio. Von Stein owns 14 acres of real property located at 2070 Jackson Road.
The Brandenburgs own the neighboring 18 acres of real property located at 2072 Jackson
Road.
{¶ 3} On July 6, 2020, Von Stein and Von Stein dba Lake Bailee Recreational Park
filed a complaint setting forth three causes of action against David and Charlotte
Brandenburg and David Brandenburg dba Brandenburg Trucking. Those three causes of
action were trespass, nuisance, and negligence. Paragraph one of the complaint alleged
the following:
Plaintiffs, Jesse Von Stein is a Butler County, Ohio resident and
president/owner of Lake Bailee Recreational Park, LLC, a
Limited Liability Company doing business in Butler County,
Ohio.
{¶ 4} Von Stein's complaint went on to allege in paragraph 11 that the
Brandenburgs had changed the topography of their property located at 2072 Jackson Road,
which in turn "caused the pre-existing natural flow of water, surface water, as well as
drainage as defined in Ohio Revised Code § 6117.01, resulting in the water overflowing"
onto his property located at 2070 Jackson Road.1 This is in addition to the complaint
alleging in paragraphs 12-13, 20, and 36 that the continuous overflow of water, surface
water, "contaminated water," drainage, and "other fluid" from the Brandenburgs' property
onto Von Stein's property had created ongoing issues that impermissibly interfered with his
use and enjoyment of the property. This included, as alleged in paragraph 15 of the
1. The complaint alleges that this topography change began in December of 2016 when the Brandenburgs
first started constructing a building "within feet" of the common property line separating the two properties.
Butler CA2023-04-040
complaint, runoff from the Brandenburgs' property contaminating the lake located on Von
Stein's property, which purportedly caused the fish in the lake to die off, as well as other
[SEGMENT 16]
unspecified damage to the "ecosystem and surrounding premises * * *." The complaint
requested compensatory damages in an amount in excess of $25,000 and a permanent
injunction ordering the Brandenburgs to implement "proper water regulation techniques" on
their property to stop the continued intrusion "by way of water and contaminated water."
{¶ 5} On July 31, 2020, the Brandenburgs and Brandenburg Trucking filed an
answer to Von Stein's complaint. As part of their answer, the Brandenburgs admitted to the
basic facts alleged in paragraph one of the complaint set forth above. This included an
admission from the Brandenburgs that Von Stein's business, Lake Bailee Recreational
Park, was a limited liability company doing business in Butler County, Ohio. The
Brandenburgs generally denied the other remaining allegations as set forth in the complaint
and as levied against them. This included the allegations set forth in paragraphs 11-13, 15,
20, and 36 discussed in the preceding paragraph.
{¶ 6} Along with their answer, the Brandenburgs also filed a counterclaim against
Von Stein and Lake Bailee Recreational Park, raising the same three causes of action that
Von Stein had levied against them, trespass, nuisance, and negligence. More specifically,
the Brandenburgs' counterclaim alleged in paragraph six that Von Stein had "built an
earthen/rock berm" on the real property located on 2070 Jackson Road, which caused the
"natural surface water flow" on that property, as well as the neighboring real property
located at 2072 Jackson Road, "to become unreasonably altered." The counterclaim then
went on to allege in paragraph nine that the construction of this berm had caused the
Brandenburgs to suffer injury, and continue to suffer injury, to their property. The
counterclaim alleged that these injuries included, but were not limited to, the diminution in
their property's value, costs of repairs and cleanup, costs to correct drainage issues, as well
Butler CA2023-04-040
as "annoyance, discomfort, inconvenience, and impediments to the potential sale" of the
property. The counterclaim requested compensatory damages in an amount in excess of
$25,000 and, in the counterclaim's paragraph six, a permanent injunction ordering Von
Stein "to remove the earthen/rock berm" on his property "that is unreasonably interfering
with the natural flow of water between the properties."
{¶ 7} On August 11, 2020, Von Stein and Lake Bailee Recreational Park filed an
answer generally denying the allegations set forth within the Brandenburgs' counterclaim.
The following year, on May 7, 2021, Von Stein sat for his deposition. Several months later,
on October 21, 2021, the Brandenburgs moved for summary judgment. In their motion, the
Brandenburgs requested summary judgment on Von Stein's complaint, as well as a partial
summary judgment on their counterclaim against Von Stein. To support their motion, the
Brandenburgs provided the trial court with a report and affidavit from their expert witness,
Eric R. Drozdowski, P.E., a senior civil/structural engineer who, following his investigation
into the matter, concluded to a reasonable degree of professional certainty that:
a. Construction activities on the Brandenburg property did not
alter the overall elevation and grading of the property.
b. The surface water flow rate changes caused by the
construction/alterations were inconsequential to cause new
flood patterns on the adjacent property.
c. There is no evidence to suggest that antifreeze, battery acid,
or any other automotive fluids or chemicals are being disposed
of on the ground of the Brandenburg property, or that any fluids
or chemicals are draining onto the Von Stein property from the
Brandenburg property.
d. Additionally, there is no evidence to suggest that
Brandenburg has done anything to cause or contribute to
contamination of the stocked fishing pond located on the east
side of the Von Stein property.
This is in addition to Drozdowski concluding that:
e. The natural flow of water on both the Von Stein and
Butler CA2023-04-040
Brandenburg properties is from west to east.
f. The placement of an earthen berm by Von Stein around the
south and east sides of the Brandenburg property is impeding
the natural flow of water from west to east, and reportedly
causing flooding on the Brandenburg property during periods of
significant rainfall.
g. Von Stein refused to allow St. Clair Township to
modify/enlarge the drainage ditch along Jackson Road, which
would have allowed Brandenburg to drain surface water on his
property into the roadside ditch instead of allowing it to naturally
flow from the Brandenburg property onto the Von Stein
property.2
{¶ 8} On February 7, 2022, the trial court granted the Brandenburgs' motion for
summary judgment in its entirety. In that decision, the trial court determined that:
Defendants have presented competent evidence by way of
expert opinion that it was unreasonable for Plaintiffs to surround
the real property at 2072 Jackson Road with an earthen berm,
and that the earthen berm blocks the natural flow of surface
water causing damage to Defendants. Defendants have also
used the deposition testimony of Von Stein to support their
allegations that Plaintiffs have no evidence to support the claims
they have asserted against Defendants.
{¶ 9} On February 22, 2022, Von Stein filed a motion requesting the trial court
reconsider its summary judgment decision given that certain exhibits had been inadvertently
excluded from the record. The parties thereafter entered into an agreed entry noting that
they had "reached an agreement concerning the submission of exhibits" in this case, as
well as an agreement that those exhibits "shall be considered as admitted" as part of Von
Stein's memorandum in opposition to the Brandenburgs' previous motion for summary
judgment. The trial court granted Von Stein's motion for reconsideration on March 8, 2022.
Shortly thereafter, on March 25, 2022, the trial court issued a decision granting the
Brandenburgs' reconsidered summary judgment motion, thus once again finding Von Stein
2. The listed findings are direct quotes taken from Drozdowski's affidavit that was attached to the
Brandenburgs' motion for summary judgment filed with the trial court on October 21, 2021.
Butler CA2023-04-040
and Lake Bailee Recreational Park liable to the Brandenburgs on their claims of trespass,
nuisance, and negligence. The trial court then set the matter for a damages hearing, which
ultimately took place on December 2, 2022.
{¶ 10} On March 3, 2023, the trial court issued its decision on damages, both
monetary damages and equitable damages in the form of permanent injunctive relief. In
this decision, the trial court initially noted its finding that Von Stein's business, Lake Bailee
Recreational Park, was not an actual party to this case and, "as far as this lawsuit is
concerned," was merely a "tradename" or "dba" of Von Stein himself. Thus, according to
the trial court, there was "effectively one counterclaim-defendant," Von Stein, "a natural
person." The trial court then noted its other finding that, "the tortious conduct of constructing
the berm and disrupting the natural flow of surface water was committed by Von Stein as
owner of the property at 2070 Jackson Road in his individual capacity." The trial court
reached this decision upon finding Von Stein's testimony that he "created the earthen berm
in question at the direction of, as agent for or for the benefit of Lake Bailee Recreational
Park, LLC," was not credible.
{¶ 11} The trial court then noted its alternative finding that, even if it were to assume
Von Stein's business, Lake Bailee Recreational Park, was "a limited liability entity" that
"owned a legal interest" in the property located at 2070 Jackson Road, Von Stein, in his
individual capacity, "would still be jointly and severally liable for said tortious conduct." The
trial court noted its decision was based on the long established principles holding "[a]gents
and employees do not escape liability for their tortious and wrongful actions simply because
they act as agents or employees of a separate legal entity."3 The trial court therefore
3. For this, the trial court cited this court's decision in [CITATION], which notes that "[a] defendant cannot shield himself from liability for the conduct in
which he allegedly engaged merely because he engaged in that conduct as a corporate officer, and the fact
that a plaintiff may not be able to pierce the corporate veil is irrelevant to the issue." Id. at ¶ 10, citing [CITATION] (discussing Ohio law of agency).
Butler CA2023-04-040
determined:
In this case, [CITATION] is responsible for his tortious acts of
creating the berm and the resulting nuisance. For the foregoing
reasons it is not necessary or appropriate, as suggested in [CITATION]'s written closing argument, that this Court apportion
damages between Jesse [CITATION] and Jesse [CITATION] dba
Lake Bailee Recreational Park, LLC.
{¶ 12} The trial court then set forth the specific damages it had decided to award to
the Brandenburgs. In so doing, the trial court stated:
[SEGMENT 17]
After careful consideration of the evidence and arguments, the
Court awards to Brandenburg [which, as previously noted in the
trial court's decision, consisted of both David and Charlotte
Brandenburg and David's business, Brandenburg Trucking] and
against [CITATION] economic damages of $14,500; non-
economic damages for annoyance and discomfort of $30,000;
and $0.00 punitive damages, as the Court does not find
evidence of malice or aggravated or egregious fraud.
{¶ 13} The trial court also issued a permanent injunction against [CITATION]. In so
doing, the trial court stated:
The Court finds that Brandenburg has suffered actual harm.
The Court finds that the nuisance created by [CITATION] can and
should be abated by a mandatory, permanent injunction
requiring the removal of the berm constructed by [CITATION] and
restoration of the natural flow of surface water runoff to the
conditions that pre-existed the construction of the berm.
Accordingly, [CITATION], including his successors or assigns, is
ordered to remove the entire earthen berm, restoring the area
surrounding the berm and the natural flow and drainage of
surface water to those conditions that existed prior to the
construction of the earthen berm. This restoration work is
ordered to be completed on or before June 30, 2023. Time is
of the essence.
{¶ 14} On April 3, 2023, [CITATION] filed a timely notice of appeal from the trial court's
decision. Following briefing from both parties, oral argument was held before this court on
November 20, 2023. [CITATION]'s appeal now properly before this court for decision, [CITATION]
and Lake Bailee Recreational Park have raised two assignments of error for this
court's review.
Butler CA2023-04-040
Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT ERRED BY IMPOSING PERSONAL LIABILITY AND
DAMAGES ON VON STEIN.
{¶ 16} In his first assignment of error, Von Stein argues the trial court erred by
imposing personal liability upon him for constructing the earthen berm on his property and
ordering him to pay the total $44,500 in monetary damages awarded to the Brandenburgs
in his individual capacity rather than to his business, Lake Bailee Recreational Park. This
is because, according to Von Stein, it was error for the trial court to deny him the "limited-
liability protection" granted to him through his business, Lake Bailee Recreational Park,
upon finding he had "failed to prove the LLC existed for [him] to enjoy limited liability
protections" afforded to him under Chapter 1705 of the Ohio Revised Code. 4 Von Stein
supports this argument by noting the Brandenburgs' answer, wherein they admitted Lake
Bailee Recreational Park was a limited liability company doing business in Butler County,
Ohio, as well as making reference to the so-called "party-presentment rule."5 Von Stein
also argues that it was error for the trial court to deny him the "limited-liability protection" he
4. Effective January 1, 2022, the General Assembly repealed R.C. Chapter 1705 and enacted R.C. Chapter
1706, the Ohio Revised Limited Liability Company Act, pursuant to 2020 Am.Sub.S.B. No. 276. "The Act
provided that the repeal of R.C. Chapter 1705 would 'not affect an action commenced, proceeding brought,
or right accrued prior to January 1, 2022.'" [CITATION] This case commenced
with Von Stein filing a complaint against the Brandenburgs on July 6, 2020. Therefore, although it is now R.C.
Chapter 1706 that would generally apply to limited liability companies in Ohio, it is nevertheless the repealed
R.C. Chapter 1705 that applies to this case.
5. The "party-presentment rule," also known as the "party-presentation rule" or the "principle of party
presentation," is a rule that applies in both civil and criminal cases that generally obligates trial courts and
courts of appeal to "rely on the parties to frame the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present." [CITATION]
This is because courts are normally only to decide questions presented by the parties themselves. [CITATION] We note,
however, that "[t]he party presentation principle is supple, not ironclad," for "[t]here are no doubt circumstances
in which a modest initiating role for a court is appropriate." [CITATION] Butler CA2023-04-040
was entitled to under R.C. Chapter 1705 as the owner of Lake Bailee Recreational Park
because "the defendants failed to plead or move to pierce the LLC's veil," and "the trial
court never applied the veil-piercing test." Both of Von Stein's arguments lack merit.
{¶ 17} Generally, pursuant to subsections (A) and (B) of the now former R.C.
1705.48, "a member of an LLC is not personally liable for the LLC's debts, obligations, or
liabilities, including the LLC's contractual liabilities."6 [CITATION], ¶ 19. In this case, however, the trial court did not find credible
Von Stein's testimony that he had constructed the earthen berm at issue "at the direction
of, as an agent for or for the benefit of Lake Bailee Recreational Park, LLC." The trial court
instead found Von Stein had acted in his own individual capacity, thereby causing the
Brandenburgs to suffer actual harm, in the form of both economic and non-economic
damages, in the amount of $44,500. "[N]either the corporate shield nor a shield of limited
liability insulates a wrongdoer from liability for his or her own tortious acts." [CITATION], ¶ 30. This rule was
codified in the now former R.C. 1705.48(D), which, as applicable to this case, provided that
a member of a limited liability company could be held personally liable for that member's
"own actions or omissions." Therefore, although the trial court may have taken a
roundabout way of getting there, we nevertheless find no error in the trial court's decision
to impose personal liability upon Von Stein in this case.7 Accordingly, finding no error in
6. The principles previously set forth in former R.C. 1705.48(A) and (B) are now codified in R.C. 1706.26,
which provides, in pertinent part, that "[a] person who is a member of a limited liability company is not liable,
solely by reason of being a member, for a debt, obligation, or liability of the limited liability company or a series
thereof, whether arising in contract, tort, or otherwise * * *."
7. We note that this holding remains true regardless of whether we agree or disagree with the trial court's
decision finding Von Stein had failed to prove his business, Lake Bailee Recreational Park, was a limited
liability company that could, under normal circumstances, provide him with limited liability protections pursuant
to R.C. Chapter 1705. That is to say, given the trial court's finding Von Stein's testimony that he had
constructed the earthen berm at issue "at the direction of, as an agent for or for the benefit of Lake Bailee
Recreational Park, LLC" not credible, the question of whether Lake Bailee Recreational Park is a limited
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'vacheresse-v-paulchel', which should be replaced with `[CITATION]`. Butler CA2023-04-040
the trial court's decision, Von Stein's first assignment of error lacks merit and is overruled.
Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ERRED BY IMPOSING AN INJUNCTION.
{¶ 19} In his second assignment of error, Von Stein argues the trial court erred by
imposing a permanent injunction requiring him to remove the earthen berm that he
constructed on his property, thereby requiring him to return the property to its prior, non-
offending condition. We disagree.
Abuse of Discretion Standard of Review
{¶ 20} "The decision whether to grant or deny a permanent injunction rests within the
sound discretion of the trial court and depends upon the facts and circumstances present
in each individual case." [CITATION]; and [CITATION]. It is therefore an
abuse of discretion standard that this court applies on appeal from a trial court's decision
granting or denying an applicant's request for a permanent injunction. See [CITATION], ¶ 34. "A decision
constitutes an abuse of discretion when the trial court acted unreasonably, arbitrarily, or
unconscionably." [CITATION], ¶ 32. "'A decision is unreasonable if there is no sound reasoning process
that would support that decision.'" [CITATION], quoting [CITATION]. A decision is arbitrary if it is made
without consideration of or regard for facts or circumstances. In re E.E.D., 8th Dist.
[SEGMENT 18]
liability company is not material to the issue of Von Stein's own personal liability in this case for it was he, not
his business, who built the earthen berm.
- 10 - Butler CA2023-04-040
[CITATION]. "A decision may also be arbitrary if it lacks
any adequate determining principle and is not governed by any fixed rules or standards."
[CITATION], ¶ 16. A
decision is unconscionable if it affronts the sense of justice, decency, or reasonableness.
[CITATION].
Permanent Injunction Standard
{¶ 21} "Injunctive relief is an equitable remedy that is available only where there is
no adequate remedy at law." [CITATION]. That is to say, injunctive relief "is not available as a right," but may
nevertheless "be granted by a court if it is necessary to prevent a future wrong that the law
cannot." [CITATION]. The test for the granting or denial of a permanent
injunction is substantially the same as that for a preliminary injunction.8 [CITATION] However, unlike the
standard applied for a preliminary injunction, which initially requires the applicant to
demonstrate just that there is a substantial likelihood that the applicant will prevail on the
merits, see [CITATION] "[a] party
seeking a permanent injunction must first prevail on the merits of its claim." [CITATION] "A
prevailing party is generally the party in whose favor the decision, verdict, or judgment is
rendered." [CITATION] Upon the applicant prevailing on the merits, the
8. Although substantially similar, we note that within his appellate brief, Von Stein's counsel provided this
court with the test for granting a preliminary injunction and not the test for granting a permanent injunction.
Given our familiarity with Von Stein's counsel's above-board work and overall good natured and honest
character, we will presume that this was merely an oversight and not an intentional misrepresentation by
appellate counsel to mislead this court.
- 11 - Butler CA2023-04-040
applicant then has the burden of proving, by clear and convincing evidence, three additional
factors for the trial court to consider when determining whether a permanent injunction
should be issued. See [CITATION].
{¶ 22} Initially, the applicant has the burden of proving, by clear and convincing
evidence, "that immediate and irreparable injury, loss, or damage will result to the
applicant." [CITATION]. "Irreparable harm is an injury for which there is no plain, adequate, and
complete remedy at law, and for which money damages would be impossible, difficult, or
incomplete." [CITATION]. Next, the applicant has the burden of proving, also by clear and convincing evidence, that no third parties would be
unjustifiably harmed by the issuance of a permanent injunction. [CITATION]. Lastly, the applicant
has the burden of proving, by clear and convincing evidence, that the public interest would
be served by a permanent injunction being issued. [CITATION]. No one factor in the
analysis is dispositive, however. [CITATION]. These established factors must instead
be weighed and balanced and "as is characteristic of the law of equity." [CITATION].
Von Stein's Argument and Analysis
{¶ 23} To support this assignment of error, Von Stein initially argues it was error for
the trial court to impose a permanent injunction requiring him to remove the earthen berm
from his property because none of the pleadings, the Brandenburgs' motion for summary
- 12 - Butler CA2023-04-040
judgment, or the trial court's various entries and orders provided him with sufficient notice
that the "damages hearing was consolidated with an injunction hearing." [CITATION] also
argues that it was an error for the trial court to issue a permanent injunction requiring him
to remove the earthen berm from his property because the Brandenburgs never requested
the trial court grant them that type of injunctive relief. We disagree with [CITATION]'s
arguments. We instead find [CITATION]'s arguments to be somewhat disingenuous given
the fact that, pursuant to Civ.R. 54(C), except as to a party against whom a default judgment
is entered, "every final judgment shall grant relief to which the party in whose favor it is
rendered is entitled, even if the party has not demanded the relief in the pleadings."
{¶ 24} But, even when ignoring the express language found in Civ.R. 54(C), the
Brandenburgs in this case actually did request a permanent injunction be issued by the trial
court. Specifically, in paragraph six of their counterclaim, the Brandenburgs requested the
trial court to issue:
An Order to Plaintiffs to remove the earthen/rock berm on the
property line of Plaintiffs and Defendants that is unreasonably
interfering with the natural flow of water between the properties
(injunctive relief).
Therefore, to the extent [CITATION] claims it was error for the trial court to impose a
permanent injunction requiring him to remove the earthen berm from his property because
he did not have sufficient notice that the "damages hearing was consolidated with an
injunction hearing," or because the Brandenburgs never requested the trial court grant them
that type of injunctive relief, such arguments lack merit.
{¶ 25} In so holding, we find it necessary to note our disagreement with [CITATION]'s
argument that it would have been perfectly acceptable for the trial court to issue a decision
granting summary judgment to the Brandenburgs finding it was the earthen berm on his
property that was "block[ing] the natural flow of surface water," thereby causing the
- 13 - Butler CA2023-04-040
Brandenburgs harm, only for the trial court to then forego issuing a permanent injunction
requiring the earthen berm be removed. With this claim, Von Stein is essentially arguing
that despite there being no issue of material fact that it was the earthen berm on his property
that was causing the Brandenburgs harm, the trial court should have nevertheless allowed
the earthen berm to remain. However, given the record properly before this court, had the
trial court forgone issuing a permanent injunction requiring the earthen berm be removed
from Von Stein's property, this would have virtually guaranteed that the Brandenburgs
would continue to suffer harm and incur additional damages for which Von Stein would be
further liable. Why Von Stein would subject himself to that is beyond this court's
comprehension, but nevertheless the path for which Von Stein seems to have chosen given
that Von Stein has yet to remove the earthen berm from his property and contempt
proceedings against Von Stein have begun. This included the trial court scheduling the
matter for a contempt hearing to take place on November 21, 2023, one day after this court
heard oral argument in this case.
{¶ 26} Moving on, as additional support for this assignment of error, Von Stein
argues the trial court "failed to apply the permanent-injunction test." To support this claim,
Von Stein challenges whether there was sufficient evidence presented that would allow for
a permanent injunction being issued in this case. In so doing, Von Stein concedes the
permanent injunction standard's first two points. That is, Von Stein concedes that the
Brandenburgs prevailed on the merits of their claims against him, and that the trial court
"considered and addressed" the immediate and irreparable injury, loss, or damage that
would result if the Brandenburgs were not granted a permanent injunction. Where Von
Stein takes exception is with the trial court's consideration, or lack thereof, with the
permanent injunction standard's third and fourth points. Those being, whether the applicant
met his or her burden of proving, by clear and convincing evidence, that no third parties
- 14 - Butler CA2023-04-040
would be unjustifiably harmed by the issuance of a permanent injunction, and whether the
public interest would be served by a permanent injunction being issued. Von Stein refers
to these latter two points as "elements" that the Brandenburgs were required to prove before
the trial court could issue a permanent injunction in this case. But, contrary to Von Stein's
claim, the permanent injunction standard is composed of the four previously mentioned
factors, not elements. The same is true as it relates to the standard for the issuance of a
preliminary injunction. See [CITATION].
{¶ 27} Elements are required to be proven to establish a particular claim or defense.
Factors, however, are not. Factors are instead a series of lesser, but nonetheless
important, evidentiary facts and/or considerations that assist courts in reaching a
determination on the ultimate issue at hand. In this case, for example, the ultimate issue
being whether the Brandenburgs were entitled to a permanent injunction against Von Stein
that required him to remove the earthen berm that he had constructed on his property,
thereby requiring him to return the property to its prior, non-offending condition. The trial
court determined that the Brandenburgs were entitled to such an injunction. Given its
analysis on this issue, it is clear that the trial court reached this decision based primarily on
the permanent injunction standard's second factor. That being, whether the Brandenburgs
had established, by clear and convincing evidence, that they had suffered, and would
continue to suffer, immediate and irreparable injury, loss, or damage if they were not
granted a permanent injunction in this case. This included the trial court finding Von Stein
had already caused actual harm to the Brandenburgs to the tune of $44,500 in damages;
[SEGMENT 19]
$14,500 in economic damages with an additional $30,000 in non-economic damages for
- 15 - Butler CA2023-04-040
the annoyance and discomfort that they were forced to endure. This was not error.
{¶ 28} It was also not error for the trial court to not specifically mention within its
decision whether it had considered each of the four factors making up the permanent
injunction standard set forth above. There is no magic words requirement that a trial court
must state before a permanent injunction may be imposed. See generally [CITATION] at ¶ 33 (discussing the permanent custody standard and what is required of a
trial court before issuing a permanent injunction). The same holds true for a preliminary
injunction. All that is required is for the trial court to "engage in a balancing process
designed to weigh the equities between the parties in determining whether or not injunctive
relief is appropriate." [CITATION] This analysis involves the trial court "considering
and weighing 'the relative conveniences and comparative injuries to the parties which would
result from the granting or refusal of injunctive relief.'" [CITATION] The trial court clearly did that in this case. To the
extent Von Stein claims otherwise, such argument again lacks merit. Therefore, having
found no merit to any of the arguments raised by Von Stein herein in support of his second
assignment of error, Von Stein's second assignment of error also lacks merit and is
overruled.
Conclusion
{¶ 29} For the reasons outlined above, and having now overruled each of Von Stein's
two assignments of error raised for review, Von Stein's appeal from the trial court's decision
granting summary judgment, monetary damages, and a permanent injunction in favor of the
Brandenburgs is denied.
{¶ 30} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
- 16 -
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 23AP-98
(C.P.C. No. 22CR-6172)
v. :
(REGULAR CALENDAR)
Ivan E. Torres-Mesa, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 5, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and Paula M.
Sawyers, for appellee. Argued: Paula M. Sawyers.
On brief: Beck Peistrup, LTD, and Robert James Beck, Jr., for
appellant. Argued: Robert James Beck, Jr.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Ivan E. Torres-Mesa, appeals from a decision and entry
of the Franklin County Court of Common Pleas ordering Ivan to be held without bond
pursuant to R.C. 2937.222. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On December 30, 2022, plaintiff-appellee, State of Ohio, issued a 39-count
indictment charging Ivan and two co-defendants, Raymundo Martinez-Mesa and Jessica L.
Delacruz Toscana, with felony drug trafficking, drug possession, and illegal manufacture of
drugs. The indictment charged each of the three co-defendants with the same 13 offenses:
six counts of trafficking in a fentanyl-related compound, in violation of R.C. 2925.03, first-
degree felonies; six counts of possession of a fentanyl-related compound, in violation of
R.C. 2925.11, first-degree felonies; and one count of illegal manufacture of drugs, in No. 23AP-98
violation of R.C. 2925.04, a second-degree felony. Each of the possession and trafficking
charges contained accompanying firearm specifications and six of those counts additionally
contained accompanying major drug offender specifications.
{¶ 3} Prior to Ivan’s arraignment, the state filed a motion to hold Ivan without bail
or bond pursuant to R.C. 2937.222. The trial court then conducted Ivan’s arraignment on
January 6, 2023, during which Ivan entered a plea of not guilty to all 13 counts. The trial
court ordered Ivan held without bail pending a hearing on the state’s motion to hold Ivan
without bail or bond.
{¶ 4} On January 12, 2023, the trial court held a combined denial of bail or bond
hearing for Ivan, Jessica, and Raymundo. At the hearing, James Walker, a detective with
the Columbus Division of Police assigned to the Organized Crime Investigation Task Force,
testified he began investigating an individual named A.S. in June 2022 on suspicion of
being a mid-level drug trafficker. Through physical and electronic surveillance of A.S.,
Detective Walker identified Raymundo, Jessica, and Ivan as persons of interest. In July
2022, officers observed A.S. conduct a meeting with Raymundo who, at the time, was
operating a 2003 red Ford pickup truck.
{¶ 5} Surveillance of the red pickup truck with Raymundo in the driver’s seat led
detectives to a house at Flint Creek in Dublin where Raymundo parked the truck inside the
garage. Detectives learned that Raymundo lived at the Flint Creek residence with Jessica,
his girlfriend. Through their surveillance, detectives observed an individual make multiple
trips to another residence at Laurel Pine in Dublin.1 Detectives determined Ivan lived at
the Laurel Pine residence with another man, E.G.
{¶ 6} Further surveillance of both the Flint Creek and the Laurel Pine residences
revealed additional vehicles that Detective Walker testified were used by Raymundo, Ivan,
and Jessica: a gray Honda Civic, a GMC Z71, and a newer-model Ford F-150. Detectives
affixed GPS tracking units to those vehicles and learned that the red older-model F-150
truck had made trips to Mexico, then California, and then back to Columbus. Detectives
eventually removed the GPS tracking units for fear the units would be detected or
1 When Detective Walker first testifies about the second residence in Dublin, he states the address as “Flint
Creek.” (Tr. at 15.) Detective Walker’s subsequent testimony in the record refers to the second residence being
located on Laurel Pine, indicating Detective Walker misspoke when he first stated the address of the second
Dublin residence. No. 23AP-98
compromised. Additionally, detectives ceased their physical surveillance of the Flint Creek
and Laurel Pine residences.
{¶ 7} Although detectives had ceased their surveillance of the residences, they
entered the older-model F-150 into a national deconfliction database that logs and tracks
information on investigations occurring throughout the country. The database yielded a
“deconfliction hit” for the red older-model F-150 in which Utah police officers reported they
had stopped, searched, and seized the truck and recovered 49 kilograms of cocaine from
“surreptitious containers” inside the truck. (Tr. at 19-20.) Detective Walker testified that
E.G., the man detectives believed was living with Ivan, was driving the truck in Utah when
it was stopped.
{¶ 8} Following the deconfliction hit, detectives attempted to resume their physical
surveillance of the Flint Creek and Laurel Pine residences. However, when detectives
returned in July 2022, the three co-defendants no longer occupied either of these
residences.
{¶ 9} Detective Walker testified the surveillance operation then switched to
physical surveillance of wire-remitting locations in Columbus. This approach led to
detectives observing Jessica driving the same Honda Civic previously associated with the
group. Detectives followed Jessica to an apartment located at Rosslare Harbour Drive and
subsequently observed both Raymundo and Ivan at that location. Detective Walker
testified that Jessica, Raymundo, and Ivan were all living together at the Rosslare Harbour
location. In mid-December 2022, detectives then resumed GPS surveillance of the vehicles
associated with the three co-defendants: the newer-model Ford F-150, a gray Honda Civic,
and a gray Honda Accord.
{¶ 10} The physical and electronic surveillance led detectives to a self-storage facility
in Fairfield County. Detectives observed Ivan driving the Honda Civic to the storage facility,
and the GPS location indicated the vehicle was stopped “for a period of minutes” in front of
Unit 4281. (Tr. at 24.) On different days of surveillance, Detective Walker said officers
observed Jessica and Ivan going into Unit 5021, which Detective Walker described as a
“shield unit” used to store legitimate items. (Tr. at 24.) Subsequently, Detective Walker
said his team observed Jessica and Raymundo’s vehicle parked in front of Unit 4281. Video No. 23AP-98
surveillance then showed Raymundo exiting the unit and appearing to lock it. Detectives determined Jessica was paying for both storage units.
{¶ 11} On September 20, 2022, Detective Walker obtained search warrants for both storage units and for the Rosslare Harbour apartment. Inside Unit 5021, officers found one rifle. Inside Unit 4281, officers found 18 kilograms of fentanyl, approximately 20,000 compressed fentanyl pills, and “numerous” assault-style rifles and large high-capacity magazines and ammunition. (Tr. at 26.) Officers also found magazines that could not be matched to the firearms inside the storage units. The total value of the amount of drugs seized from the storage unit was “well into the tens of millions of dollars.” (Tr. at 34.) Additionally, Unit 4281 contained two jet skis that officers later learned were used to store and traffic bulk narcotics. Detective Walker said those jet skis had previously been observed at the Laurel Pine residence. Detectives also collected numerous cell phones wrapped in tinfoil from Unit 4281.
{¶ 12} The search of the Rosslare Harbour apartment yielded “numerous fraudulent documents,” including passports and identification cards. (Tr. at 29.) These fraudulent documents contained pictures of Jessica, Raymundo, and Ivan but used different names for each of them. Detectives also recovered “numerous firearms” from what they believed to be Jessica and Raymundo’s room, and they collected additional cell phones and documents related to the red older-model truck seized in Utah from this residence. (Tr. at 29.)
{¶ 13} Subsequent examination of the cell phones officers recovered from execution of the search warrant revealed “numerous videos and photos” that Detective Walker testified showed Jessica, Raymundo, and Ivan “either facilitating bulk -- or drug deals with bulk quantities of narcotics, in addition to videos displaying the counting of bulk narcotics.” (Tr. at 31.) Detective Walker testified 28 phones were recovered from the investigation and, at the time of the bond hearing, officers had been able to go through 24 of the phones. Of those 24 phones, Detective Walker said 15 of the phones contain “some sort of nexus to drug trafficking or smuggling,” and he further testified that through these 15 phones, there was evidence connecting all three of the co-defendants to drug trafficking. (Tr. at 32.) Officers were also able to use the phones to learn how money would be remitted to the No. 23AP-98
[SEGMENT 20]
Sinaloa area of Mexico, and detectives gathered intelligence indicating Jessica was a
member or an associate of the Sinaloa cartel.
{¶ 14} Detective Walker further testified the different colors of the pills and powders
recovered in the storage unit can correlate to manufactures coloring their pills in a way to
mimic a legitimate prescription narcotic pill. He further testified the cell phone videos
revealed an “alarming number” of firearms that the three co-defendants used that were not
recovered in the storage units and that detectives believe are still in Franklin County. (Tr.
at 38.) Detective Walker described the types of weapons seen in the content from the seized
cell phones, stating “there are handguns with Glock switches -- this is a switch in order to
make it a fully automatic handgun -- in addition to short-barrel rifles, 40-millimeter
grenade launchers, in addition to RPG weapons systems.” (Tr. at 38.) Based on the amount
of currency Detective Walker saw moving on the cell phones, he testified he “[a]bsolutely”
had reason to believe the three co-defendants have access to additional currency that could
facilitate flight from the United States if they were released on bond. (Tr. at 41.)
{¶ 15} At the conclusion of the hearing, the trial court denied Ivan, Jessica, and
Raymundo bail while awaiting trial pursuant to R.C. 2937.222. Specifically, the trial court
found the state had demonstrated, by clear and convincing evidence, that the proof is
evident or the presumption great that the three accused committed at least some of the
offenses, that all three co-defendants pose a danger to the community, and that no release
conditions would reasonably assure the safety of the public from the danger posed by Ivan,
Jessica, and Raymundo if they were released on bond. The trial court journalized its
decision in a January 13, 2023 decision and entry. Ivan timely appeals.
II. Assignment of Error
{¶ 16} Ivan assigns the following sole assignment of error for our review:
The trial court did err by ordering [Ivan] held without bond.
III. Discussion
{¶ 17} In his sole assignment of error, Ivan argues the trial court erred when it
ordered him to be held without bond while awaiting trial. More specifically, Ivan asserts
there was not clear and convincing evidence in the record to support the trial court’s
determination that, pursuant to R.C. 2937.222, Ivan is not entitled to bail or bond. No. 23AP-98
{¶ 18} An appellate court reviews a trial court’s decision on a denial of bail pursuant
to R.C. 2937.222 for an abuse of discretion. [CITATION], ¶ 11, citing [CITATION], ¶ 10,
citing [CITATION], ¶ 5. See also [CITATION], ¶ 6 (“the trial court’s order [denying
bail under R.C. 2937.222] will not be reversed absent a showing that the trial court abused
its discretion in finding that the prosecution had met its burden of proof to show that
appellant should be denied bail”).2 An abuse of discretion connotes a decision that is
unreasonable, arbitrary, or unconscionable. [CITATION]. Additionally, an appellate court may find an abuse of discretion where the trial
court “ ‘applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.’ ” [CITATION], ¶ 17, quoting [CITATION], ¶ 15.
{¶ 19} Here, the state moved to hold Ivan without bail or bond. Pursuant to R.C.
2937.222(A), on motion of the state or by its own initiative, a trial court must hold a hearing
to determine whether an accused person charged with certain felony offenses, including
first- and second-degree felony offenses, shall be denied bail. The trial court may not deny
the accused bail unless the trial court finds, by clear and convincing evidence, that: (1) “the
proof is evident or the presumption great that the accused committed the offense,” (2) “the
accused poses a substantial risk of serious physical harm to any person or to the
community,” and (3) “no release conditions will reasonably assure the safety of that person
and the community.” R.C. 2937.222(B). The state bears the burden of proving the statutory
conditions for a denial of bail. R.C. 2937.222(A). “Clear and convincing evidence is that
‘which will produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.’ ” [CITATION], quoting [CITATION], paragraph three of the syllabus.
2 We recognize, as this court did in [CITATION], that Ohio’s appellate districts are divided on the proper
standard of review of a trial court’s denial of bail under R.C. 2937.222, but based on the principles of stare
decisis we will continue to apply the abuse of discretion standard. Id. at ¶ 5, fn. 6, citing [CITATION], ¶ 22-25 (examining standards of review applied by various appellate
courts). No. 23AP-98
{¶ 20} Ivan argues the state failed to demonstrate, by clear and convincing evidence,
any of the three statutory conditions to deny him bail. Thus, we will examine the evidence
presented relative to each of the three statutory conditions for a denial of bail under [CITATION].
A. Proof Evident or Presumption Great that Accused Committed the Offense
{¶ 21} The first condition the state must demonstrate for a denial of bail is that the
proof is evident or the presumption great that the accused committed the offense. [CITATION]. Ivan acknowledges that law enforcement recovered a substantial amount of
drugs when it executed the search warrants. He asserts, however, that while the state may
have put forth clear and convincing evidence of his co-defendants’ involvement in the
offenses, the state failed to present enough evidence that Ivan, specifically, had any access
to the drugs seized in the execution of the search warrant such that the proof is evident or
the presumption great that he committed the offenses. We disagree.
{¶ 22} At the hearing, Detective Walker testified regarding the extensive
investigation into all three of the co-defendants and to Ivan’s involvement in particular.
Specific to Ivan, Detective Walker testified that Ivan lived at the Rosslare Harbour
apartment with Jessica and Raymundo at the time police executed the search warrants,
stating, in response to a direct question about whether Ivan lived with Jessica at that time,
that “all three lived together.” (Tr. at 64.) Inside the Rosslare Harbour apartment, law
enforcement recovered fraudulent documents, including passports and identification
cards, and Detective Walker testified some of those documents had Ivan’s picture paired
with a falsified name. Detective Walker further testified that detectives observed Ivan
driving the Honda Civic to the storage facility and that GPS data indicated the vehicle Ivan
drove was stopped “for a period of minutes” in front of Unit 4281. (Tr. at 24.) The search
of Unit 4281 yielded the bulk quantities of drugs worth “well into the tens of millions of
dollars,” the assault-style weapons, and high-capacity magazines and ammunition, only
some of which could be matched to the weapons found within the storage unit. (Tr. at 34.)
Additionally, Unit 4281 contained two jet skis used to store and traffic bulk narcotics that
Detective Walker testified detectives had previously observed at Ivan’s prior residence on
Laurel Pine. No. 23AP-98
{¶ 23} Further, Detective Walker testified that 15 of the cell phones recovered from
both the storage unit and the Rosslare Harbour apartment contained “some sort of nexus
to drug trafficking or smuggling,” and he specifically testified the cell phones contained
“numerous videos and photos” showing Ivan and his co-defendants “either facilitating bulk
-- or drug deals with bulk quantities of narcotics, in addition to videos displaying the
counting of bulk narcotics.” (Tr. at 31-32.) While the state did not play the surveillance
videos or the cell phone videos during the hearing, Detective Walker described the contents
of those videos, and there is no indication the trial court did not believe Detective Walker’s
testimony. See, e.g., [CITATION], ¶ 18 (testimony at the denial of bail hearing from two detectives was sufficient to establish clear
and convincing evidence related to the first factor of R.C. 2937.222(B), including the
detectives’ testimony about the existence of surveillance video footage of the appellant);
[CITATION], ¶ 8, fn. 1, ¶ 44 (the trial court
had clear and convincing evidence to find that the proof is evident or the presumption great
that the accused committed the offenses where the state could not play a surveillance video
used in the police investigation during the hearing due to technical difficulties but the state
had the detective “describe what was in the videos for the court”); R.C. 2937.222(A) (the
rules of evidence “do not apply to the presentation and consideration of information at the
[denial of bail] hearing”).
{¶ 24} Based on this evidence, the trial court did not abuse its discretion in finding
that the state established by clear and convincing evidence that the proof is evident or the
presumption great that Ivan committed the offenses. See [CITATION], ¶ 21 (even where evidence of an accused’s involvement is
circumstantial, such evidence, if believed, can still constitute clear and convincing evidence
to support the trial court’s conclusion on denial of bail).
B. Substantial Risk of Serious Physical Harm
{¶ 25} The second statutory condition requires the trial court to determine whether
the accused poses a substantial risk of serious physical harm to a specific person or the
community. In making a determination of this second factor, the statute directs what the
court must consider: No. 23AP-98
[SEGMENT 21]
(C) The judge, in determining whether the accused person
described in [R.C. 2937.222(A)] poses a substantial risk of
serious physical harm to any person or to the community and
whether there are conditions of release that will reasonably
assure the safety of that person and the community, shall
consider all available information regarding all of the
following:
(1) The nature and circumstances of the offense charged,
including whether the offense is an offense of violence or
involves alcohol or a drug of abuse;
(2) The weight of the evidence against the accused;
(3) The history and characteristics of the accused, including,
but not limited to, both of the following:
(a) The character, physical and mental condition, family ties,
employment, financial resources, length of residence in the
community, community ties, past conduct, history relating to
drug or alcohol abuse, and criminal history of the accused;
(b) Whether, at the time of the current alleged offense or at the
time of the arrest of the accused, the accused was on probation,
parole, post-release control, or other release pending trial,
sentencing, appeal, or completion of sentence for the
commission of an offense under the laws of this state, another
state, or the United States or under a municipal ordinance.
(4) The nature and seriousness of the danger to any person or
the community that would be posed by the person’s release.
R.C. 2937.222.
{¶ 26} Detective Walker testified about the quantity of drugs seized in the storage
unit, with a value in the tens of millions of dollars, and the cell phone videos showing both
drug trafficking behavior as well as the “alarming number” of firearms believed to still be
in Franklin County that were not recovered by Detective Walker’s task force in the
execution of the search warrant. (Tr. at 38.) Detective Walker described the types of
weapons seen in the content from the seized cell phones, stating “there are handguns with
Glock switches -- this is a switch in order to make it a fully automatic handgun -- in addition
to short-barrel rifles, 40-millimeter grenade launchers, in addition to RPG weapons No. 23AP-98
systems.” (Tr. at 38.) This testimony about the scale of the drug trafficking operation and
the quantity and type of weapons law enforcement officers did not recover is sufficient to
establish, by clear and convincing evidence, that Ivan posed a substantial risk of serious
physical harm to the community. Thus, the trial court did not abuse its discretion in finding
the second statutory condition for a denial of bail.
C. No Release Conditions Will Assure the Safety of the Community
{¶ 27} The third and final statutory condition for the denial of bail is whether there
are any conditions of release that will reasonably assure the safety of the community. As
noted above, R.C. 2937.222(C) specifies what information the trial court must consider in
evaluating the third factor.
{¶ 28} Relative to the third factor, Detective Walker testified that the cell phones
contained information demonstrating the co-defendants were remitting money to the
Sinaloa area of Mexico, and he further testified about the existence of the Sinaloa drug
cartel and Jessica’s known ties to the organization. Based on the amount of currency
Detective Walker saw moving on the cell phones, he testified he “[a]bsolutely” had reason
to believe that all three co-defendants, including Ivan, have access to additional currency
that could facilitate flight from the United States if they were released on bond. (Tr. at 41.)
Even with this testimony, however, the trial court was explicit that it was not basing its
denial of bail decision based on Ivan’s risk of flight. Instead, the trial court explained it was
considering the statutory factors to determine whether any conditions of release could
reasonably assure the safety of the community.
{¶ 29} In considering the safety of the community, the trial court noted the number
and type of weapons constituting the “arsenal” found both in the residence and in the
storage units. (Tr. at 88.) The trial court determined that these weapons, the unaccounted-
for magazines, and Glock switches indicated that no release conditions, including any GPS
monitoring, could reasonably assure the safety of the community. Based on this record, we
find the trial court did not abuse its discretion in determining clear and convincing evidence
established the third statutory factor for a denial of bail. See [CITATION] at ¶ 19-21. No. 23AP-98
D. Conclusion
{¶ 30} Having reviewed the evidence presented at the bond hearing, we find the trial
court did not abuse its discretion in determining the state had established by clear and
convincing evidence that the proof is evident or the presumption great that Ivan committed
the offenses, that Ivan posed a substantial risk of serious physical harm to the community,
and that no release conditions would reasonably assure the safety of the community.
Accordingly, the trial court did not abuse its discretion in ordering Ivan held without bond.
We overrule Ivan’s sole assignment of error.
IV. Disposition
{¶ 31} Based on the foregoing reasons, the trial court did not abuse its discretion in
ordering Ivan to be held without bond pursuant to R.C. 2937.222. Having overruled Ivan’s
sole assignment of error, we affirm the decision and entry of the Franklin County Court of
Common Pleas.
Judgment affirmed.
LELAND, J., concurs.
EDELSTEIN, J., dissents.
____________________
EDELSTEIN, J., dissenting.
{¶ 32} I believe both the majority opinion and the trial court make the same mistake
in finding that general, non-specific evidence presented—largely without distinction—
about all three defendants at a single, combined denial-of-bail hearing is sufficient to deny
Ivan bail under R.C. 2937.222. Because R.C. 2937.222 only permits a trial court to deny a
defendant pre-trial bail if it finds the state presented clear and convincing evidence of all
three statutorily required conditions about that particular defendant, I find the
majority’s analysis—much like the trial court’s—to be contrary to the governing law.
Accordingly, I respectfully dissent.
{¶ 33} The majority accurately recognizes that, under R.C. 2937.222, a trial court
cannot deny bail to a person awaiting trial unless it finds the state established, by clear and
convincing evidence, all three of the following conditions: No. 23AP-98
. “[T]he proof is evident or the presumption great” that the
accused committed the serious felonies with which he is
charged.
. The accused “poses a substantial risk of serious physical
harm to any person or to the community.”
. “[N]o release conditions will reasonably assure the safety of
that person and the community.”
R.C. 2937.222(B). (See Majority at ¶ 19.) And, indeed, it is important to emphasize that a
criminal defendant’s general right to reasonable pre-trial bail is secured by both the Eighth
Amendment to the United States Constitution and Article I, Section 9 of the Ohio
Constitution. See [CITATION].
{¶ 34} It is canonical that “[w]e are * * * duty bound to apply the laws as they are
written.” [CITATION]. See also [CITATION], quoting [CITATION]. Yet, I do not believe the
majority or trial court fully adhere to that fundamental principle when correlating the
evidence presented at the combined hearing for all three defendants to the statutory denial-
of-bail conditions that needed to be proven about Ivan individually.
{¶ 35} On review, it appears the precipice for such error was the decision to conduct
a single, combined denial-of-bail hearing for all three defendants and the manner in which
the sole witness’s testimony was presented. Certainly, efficiency considerations
undoubtedly informed that decision, but I believe the efficacy of the state’s evidence
ultimately suffered because of that choice in this case. Detective Walker testified about the
collective group and described the generalized harm associated with illegal drugs (fentanyl)
and firearms. On the whole, his factual testimony about the codefendants was broad,
vague, and unclear, making it difficult to ascertain which portions related to each particular
codefendant. It is true that some of Detective Walker’s testimony about Jessica and
Raymundo specifically connected them to the charged offenses or otherwise acted as
evidence supporting the state’s denial-of-bail request. But his testimony about Ivan’s
conduct—individually or specifically—is notably wanting on these matters. No. 23AP-98
{¶ 36} Expectedly, then, the trial court’s denial-of-bail analysis was likewise general
and non-specific to any of the three codefendants. And now, on appeal, I believe the
majority engages in an analysis that equally lacks the discernment that is required.
I. Evident Proof or Great Presumption of Guilt
{¶ 37} Ivan was charged with the unlawful possession, trafficking, and manufacture
of drugs. In support of R.C. 2937.222(B)’s first condition—whether “the proof is evident or
the presumption great that the accused committed” the charged offense(s)—the state
presented testimony from [CITATION] about the approximately six-month
investigation into Ivan, Jessica, and Raymundo he and five other detectives conducted.
(See Tr. at 48-49, 55.) His testimony clearly and convincingly established that the three
defendants knew and interacted with each other. (See, e.g., Tr. at 14-16, 21-23.) But none
were charged with violating Ohio’s conspiracy or organized crime laws in their respective
cases below. Thus, proof of their connection to each other has little bearing on the state’s
burden to show evident proof or a great presumption that Ivan committed the drug
trafficking, possession, and illegal manufacture offenses with which he is charged.
{¶ 38} At the hearing, the trial prosecutor posited that [CITATION]’s testimony
clearly and convincingly “explained how each of these defendants are connected to the
drugs that were found and a continuing course of conduct from the apartment that they
were all sharing here in Franklin County, Ohio, back and forth between here and the storage
units in Fairfield County.” (Emphasis added.) (Tr. at 72.) And the trial court ultimately
concluded that the state proved, by clear and convincing evidence, that “these three
accused committed at least some of the offenses at issue in the indictment * * * if not
trafficking, possession.” (Emphasis added.) (Tr. at 82-83.)
{¶ 39} But [CITATION]’s testimony did not specifically describe any conduct by
Ivan that was criminal. [CITATION] acknowledged the task force never conducted a
controlled buy with Ivan and did not claim the detectives ever observed Ivan sell,
manufacture, or possess drugs. (See Tr. at 45.) Furthermore, [CITATION] conceded
the task force did not locate any stash or prep house(s) used by the defendants or otherwise
connected to the charged drug offenses. (Tr. at 55. See also Tr. at 40, 67.) Nor did he claim
to know when, how, or by whom the seized drugs were placed in the storage unit where they
were recovered. (Tr. at 53.) No. 23AP-98
[SEGMENT 22]
{¶ 40} In the absence of any direct evidence that Ivan possessed, trafficked, or
manufactured drugs, then, proof that he committed the charged offenses is commensurate
with the state’s ability to connect Ivan with the evidence collected by detectives from their
search of two storage units—Unit 4281 and Unit 5021—and the Rosslare Harbour
residence. As the majority notes, Unit 5021 was “described as a ‘shield unit’ used to store
legitimate items.” (Majority at ¶ 10, citing [CITATION].) Indeed, barring one rifle, all
contraband and other items of evidentiary value—drugs, firearms, ammunition, and cell
phones wrapped in tinfoil—were recovered from Unit 4281. (See [CITATION].) Law
enforcement also seized fraudulent documents, more firearms, and other incriminating
evidence from the Rosslare Harbour residence. (See [CITATION].)
{¶ 41} Detective Walker’s hearing testimony specifically connected Jessica and
Raymundo to both of the storage units. He described surveillance that showed Jessica and
Raymundo entering Unit 5021 “on different days” and their vehicle parked in front of Unit
4281. ([CITATION].) He also described video surveillance footage that captured Raymundo
“exiting [Unit 4281] and then closing it and appearing to lock it.” ([CITATION].) In addition
to testifying about Jessica and Raymundo accessing these two units, Detective Walker
indicated detectives also located a card linking Jessica to both storage units in her purse
when they searched the Rosslare Harbour residence ([CITATION]) and later determined that
Jessica had been paying for both units ([CITATION].)
{¶ 42} In stark contrast, no evidence suggested either of the storage units were
leased to, paid for, or accessed by Ivan. (See [CITATION].) At most, Detective Walker’s
hearing testimony established that Ivan was observed driving the Honda Civic to the
storage unit facility’s premises. (See [CITATION].) The majority describes Detective Walker
as testifying about observing “Ivan driving the Honda Civic to the storage facility, and the
GPS location indicat[ing] the vehicle was stopped ‘for a period of minutes’ in front of Unit
4281.” (Majority at ¶ 10, quoting [CITATION]. See also Majority at ¶ 22, citing [CITATION].) But
that description is not clearly supported by the testimony on which the majority relies. At
the hearing, Detective Walker explained that detectives “discovered the storage units”
when, during the course of their physical surveillance at the Rosslare Harbour residence,
they observed Ivan operate the Honda Civic and used surveillance (physical and electronic) No. 23AP-98
to track him to the storage unit facility. (See Tr. at 23.) The following testimony was elicited
as to the particular storage units:
[Prosecutor]: Did you observe a continuing action of
the defendants going from Franklin
County into Fairfield County and back?
[Det. Walker]: Yes.
[Prosecutor]: And was that from both physical
surveillance and GPS surveillance?
[Det. Walker]: Yes.
[Prosecutor]: Okay. So you told us that you observed
Ivan going [to the storage unit facility].
Did you also observe Raymundo
and [Jessica] going to those storage
units, as well?
[Det. Walker]: So we observed the GPS location had
stopped right in front of Unit 4281 for a
period of minutes. Further, on
different days of surveillance, video-based
surveillance, in addition to physical-based
surveillance, [we] observed [Jessica] and
[Raymundo] going in Unit 5021 * * *.
And then from there we observed their
vehicle park in front of Unit 4281. * * *.
(Emphasis added.) (Tr. at 23-24.) Of note, detectives installed GPS tracking units on at
least three vehicles affiliated with the group, including the Honda Civic. (Tr. at 22-23.) But
in the portion of the testimony cited by the majority, Detective Walker did not specify which
vehicle he observed stop in front of Unit 4281, much less that Ivan was the driver at that
time. (See Tr. at 23-24.) Even assuming it was the Honda Civic, I do not believe it is
appropriate to infer Ivan was the driver since Detective Walker did not explicitly and clearly
testify that he was, and Detective Walker’s testimony indicated that Jessica was historically
known to operate that vehicle. (See, e.g., Tr. at 21-24.)
{¶ 43} Furthermore, Detective Walker conceded the detectives did not know who
placed or accessed the drugs, guns, or any other items in the storage units from which they No. 23AP-98
were recovered. (See Tr. at 53.) It is true, as the majority notes, that Detective Walker
testified about recovering from “the storage units” two jet skis that “were utilized to store
and traffic bulk narcotics.” ([CITATION] at ¶ 11. See Tr. at 26-27.) And it is true Detective
Walker testified that these were the same two jet skis detectives previously observed at the
Laurel Pine Lane residence where Ivan, E.G. (who was driving the red truck when it was
stopped in Utah), and others lived. (Id. See also [CITATION] at ¶ 7; Tr. at 15, 18-20.) But,
Detective Walker did not indicate which storage unit these jet skis were in, how they got
there, who owned them, who purchased them, or who used them. (See Tr. at 26-27.) Nor
did he claim Ivan was ever seen interacting with the two jet skis. Thus, I do not believe the
record before this court is sufficient to connect Ivan to the recovered jet skis.
{¶ 44} Evidence connecting Ivan to the Rosslare Harbour residence is equally scant.
At the denial-of-bail hearing, Detective Walker initially testified about observing Ivan at
the Rosslare Harbour apartment and described only Jessica and Raymundo as residing
at that address. (See Tr. at 22, 29.) Although Detective Walker later claimed on redirect
examination that “all three lived together” at the time the search warrants were executed,
he provided no information regarding the factual basis for that belief. (See Tr. at 64.)
{¶ 45} Notable in that regard is Detective Walker’s testimony about seizing
“numerous firearms from what [detectives] believed to be Raymundo Mesa and Jessica
Toscano’s room[]” at the Rosslare Harbour apartment. (Tr. at 29.) But, he did not testify
about any items recovered from “Ivan’s room” or, for that matter, suggest that Ivan had a
room or any personal effects at the residence. Detective Walker also did not claim that
Ivan’s name was on the lease for the apartment or that he paid any rent to live there. Thus,
without more, I think it is difficult to conclude Ivan lived at the Rosslare Harbour residence.
But, even assuming he did, no drugs were recovered from that location anyway.
{¶ 46} In a similar vein, Detective Walker testified that detectives recovered
“numerous fraudulent documents,” including passports and identification cards, when they
searched the Rosslare Harbour residence. (Tr. at 29.) In its analysis of the first denial-of-
bail condition, the majority notes that “Detective Walker testified some of those documents
had Ivan’s picture paired with a falsified name.” ([CITATION] at ¶ 22. See also id. at ¶ 12.) The
significance of that testimony is unclear, though, because the majority opinion does not
connect the evidence presented about fraudulent identification document(s) with Ivan’s No. 23AP-98
face to the drug offenses with which Ivan was charged. See R.C. 2937.222(B). And, in fact,
because the trial prosecutor did not ask Detective Walker to explain how, based on his
experience and knowledge, fraudulent identification documents can be relevant evidence
of drug crimes, the record before this court does not contain any evidentiary basis to make
that connection. (Compare [CITATION].)
{¶ 47} Moreover, since Detective Walker’s description of the seized fraudulent
documents was vague, general, and largely non-specific (at least as to Ivan), I see no basis
to presume that more than one of the documents seized from the Rosslare Harbour
residence contained Ivan’s face. (See [CITATION]. Compare Majority at ¶ 12.) Indeed,
while Detective Walker specifically testified about Jessica and Raymundo having altered
passports that appeared legitimate ([CITATION]), he gave no indication as to the quantity,
quality, or type of “fraudulent IDs and documents” detectives seized that pertained to Ivan
(see [CITATION]). And, although Detective Walker also described “information
from the [seized] phones” indicating “that Ivan has numerous fake IDs or fictitious ID[s],”
Detective Walker did not explain exactly what that “information” was—e.g., photographs of
or messages concerning Ivan’s false identification documents. (Emphasis added.) ([CITATION].)
{¶ 48} Based on my review of the record, I do not see a tenable way to view Detective
Walker’s testimony about any fraudulent documents pertaining to Ivan—seized from the
Rosslare Harbour residence or suggested by content on the cell phones—as having any
appreciable evidentiary value on whether “the proof is evident or the presumption great
that” Ivan committed the drug offenses with which he is charged. See R.C. 2937.222(B).
{¶ 49} The majority also relies on Detective Walker’s testimony about the evidence
subsequently discovered on 15 of the 28 phones recovered from Unit 4281 and the Rosslare
Harbour residence in its analysis. (Majority at ¶ 23, citing [CITATION]. See also Majority
at ¶ 13-14.) More precisely, Detective Walker testified that these 15 phones “contain[ed]
some sort of nexus to drug trafficking or smuggling” ([CITATION]) and “a small insight into
their complex network of money laundering” ([CITATION]). It is true that Detective Walker
answered in the affirmative when the trial prosecutor asked if he saw “evidence of all three
defendants throughout those phones [related to drug trafficking].” ([CITATION].) But
Detective Walker provided no specific information about any content on the phones that No. 23AP-98
[SEGMENT 23]
could be connected to Ivan in particular. Indeed, Detective Walker did not describe Ivan’s
actions or statements in any of the extracted media items or messages found on any of those
15 phones, when any such content was created or sent, the type(s) of drugs observed in
content concerning Ivan, or whether the Ivan-specific content even related to the offenses
charged in this case. (Compare Tr. at 32) (describing cell phone content depicting
“[Raymundo] and others having conversations into educating their customers on how to
manufacture or cut fentanyl and just on drug trafficking”).
{¶ 50} Clearly connecting Ivan with any drug trafficking, possession, and/or
manufacturing content extracted from the seized phones is difficult because Detective
Walker gave sweeping and vague descriptions about that content and generally attributed
all of it to the collective group. (See Tr. at 31-33.) Nonetheless, the majority notes that
Detective Walker broadly described “ ‘numerous videos and photos’ showing Ivan and his
co-defendants ‘either facilitating bulk -- or drug deals with bulk quantities of narcotics, in
addition to videos displaying the counting of bulk narcotics.’ ” (See Majority at ¶ 23, quoting
Tr. at 31-32.) But none of these videos or photographs were presented as evidence at the
denial-of-bail hearing, or even described in any appreciable defendant-specific detail.
{¶ 51} While I generally agree with the proposition that the testimony about the
existence of these media items could be sufficient to establish clear and convincing evidence
related to the first factor (see Majority at ¶ 23), I do not agree with the majority’s finding
that Detective Walker’s testimony was sufficient in this instance. Further, the two cases on
which the majority decision relies are largely inapposite because neither involved a single,
combined denial-of-bail hearing for multiple defendants. (Compare Majority at ¶ 23, citing
[CITATION] and [CITATION].)
{¶ 52} Indeed, the issue is not the veracity of Detective Walker’s testimony about
the contents of the phones—which I assume to be true. (See Majority at ¶ 23) (noting “there
is no indication the trial court did not believe Detective Walker’s testimony”). It is, instead,
both the overbreadth and non-specificity of his descriptions about the relevant items
extracted from the phones on which the state, the trial court, and now the majority rely to
conclude there is “clear and convincing evidence that the proof is evident or the
presumption great” that Ivan committed the charged offenses. For instance, facilitating No. 23AP-98
bulk drug deals and counting bulk narcotics are two separate activities. And Detective
Walker did not specify the type of narcotics observed in connection to either activity, much
less give any specifics as to when these media items were created or what exactly was
depicted. (See Tr. at 31-32.) This is significant because all of Ivan’s drug charges pertain to
the trafficking, possession, and manufacture of fentanyl. So, for example, if the phones
depicted Ivan counting bulk quantities of some other type of narcotic over ten years ago—
where the statute of limitations for all drug-related felony charges is six years, subject to
tolling, see R.C. 2901.13(A)(1)(a)—then such evidence would be insufficient to satisfy the
first condition of R.C. 2937.222.
{¶ 53} When the trial court analyzed R.C. 2937.222(B)’s first condition—evident
proof or great presumption of guilt—it did not parse out the relevant testimony as it related
to each defendant individually. Instead, the trial court considered the testimony presented
about the group, collectively, and found, without distinction, that it clearly and convincingly
established each defendant committed some of the charged offenses. (Tr. at 82-85.) The
majority opinion’s analysis similarly lacks the circumspection I believe both the Ohio
Constitution and the denial-of-bail statute require. Concluding otherwise undermines the
plain language of the statute and the bedrock principles of our criminal justice system.
{¶ 54} Because the trial court held a single denial-of-bail hearing for three
defendants and the state’s sole witness testified generally about the actions of the collective
group with little particularity as to Ivan’s involvement, I do not believe the trial court judge
was in the position to—nor did he—adequately segregate the evidence applicable to Ivan
and separately consider whether that evidence clearly and convincingly established that
“the proof is evident or the presumption is great” that Ivan committed the offenses with
which he was charged. In light of my concerns about the spill-over effect caused by the
process below and based on my review of the record, I would conclude that, under the facts
and circumstances of this case, the trial court’s conclusion as to the first condition did not
comply with the dictates of R.C. 2937.222(B).
{¶ 55} Even assuming, as the majority contends, the evidence was sufficient as to
the first factor, however, I would still find that the trial court’s decision to deny Ivan pre-
trial bail was nonetheless contrary to law. This is because, as described below, the trial
court failed to properly consider whether Detective Walker’s hearing testimony clearly and No. 23AP-98
convincingly established that Ivan posed a substantial risk of serious physical harm to the
community and, if so, whether any release conditions could reasonably assure the
community’s safety.
II. Substantial Risk of Serious Physical Harm to the Community
{¶ 56} In support of R.C. 2937.222(B)’s second condition—whether each defendant
posed a “substantial risk of serious physical harm to any person or to the community”—the
trial prosecutor elicited testimony from Detective Walker describing the general danger
posed by the unlawful use of fentanyl (particularly in the form of pills manufactured by drug
traffickers) and firearms. (See Tr. at 35-38.) In closing arguments, the trial prosecutor
broadly noted that drug trafficking and dealing “often result[] in firearm offenses” and
contended that “these defendants certainly have the means to access those types of
firearms that are, quite frankly, killing this community, along with the drugs that are killing
the other parts of this community.” (Emphasis added.) (Tr. at 72-73.) Of note, the state
did not allege that any of the three defendants posed any danger to any particular person.
{¶ 57} In addressing this condition, the trial court found the state’s contention “that
there’s a danger that these three individuals will continue the distribution of drugs
pending their pretrial release[]” to be “kind of tenuous” and opined that such concerns
“could also be ameliorated with pretrial conditions.” (Emphasis added.) (Tr. at 86-87.)
And, again, detectives did not claim to have observed Ivan sell, manufacture, or possess
drugs at any point during their investigation.
{¶ 58} The state also elicited testimony from Detective Walker about the general
danger firearms pose to the community and his belief that some firearms associated with
the group may not be accounted for. (See Tr. at 26, 37-38.) Detective Walker told the trial
court that detectives were unable to match some of the magazines recovered from Unit 4281
with the “numerous firearms” they recovered from that storage unit, the single Browning
rifle seized from Unit 5021, or the “numerous firearms” found in Jessica and Raymundo’s
room at the Rosslare Harbour apartment. (See Tr. at 26, 29, 38.) In closing, the state
contended that “[t]he firearms that were found also pose a risk to the community[,]” even
though Detective Walker’s testimony established that any firearm found was seized by the
police. (Compare Tr. at 72, with Tr. at 26-29, 59.) Citing the general notion that “drug
trafficking, drug dealing often results in firearm offenses” (it did not here), the trial No. 23AP-98
prosecutor also posited that “these defendants certainly have the means to access those
types of firearms that are, quite frankly, killing the community.” (Emphasis added.) (Tr.
at 72-73.) But the state did not present any concrete evidence to suggest Ivan had access to
any firearms—much less a risk he would use one.
{¶ 59} My review of the record compels me to conclude that the trial court’s decision
to deny Ivan’s bail was most glaringly wrong because the state did not present any
evidence at the hearing to support the finding that Ivan “pose[d] a substantial risk of
serious physical harm to any person or to the community.” See [CITATION]. Although [CITATION] permitted the trial court to consider Ivan’s history and
characteristics when it evaluated whether he posed a substantial risk of serious physical
harm to the community, the state presented no relevant information about him—e.g., prior
arrests, prior bad acts, other pending charges—at the hearing. Certainly, a plain reading of
the denial-of-bail statute confirms that the general (and often emphasized) nexus between
drugs and guns cannot, alone, establish the evidentiary support the second condition
requires. Indeed, the critical calculus is not that certain types of offenses are thought to be
indicative of firearms possession (or even use), but, instead, whether evidence presented
by the state about a particular defendant at the denial-of-bail hearing sufficiently
suggests a “substantial risk” that the particular defendant will cause “serious physical
harm” to the community or another person if released on bond prior to trial.
{¶ 60} Therein lies the fault, in my opinion, with the analysis below. The trial court
found Detective Walker’s testimony about the unaccounted-for firearms to be compelling
and concluded the state carried its burden in establishing a danger to the community if
“these three are released” on bond while awaiting trial. (Emphasis added.) (Tr. at 87.)
The trial court explained that its finding was “based entirely upon * * * [the] arsenal that
was found at the residence and the fact that [testimony] also indicates unaccounted-for
guns.” (Tr. at 87-88.) More precisely, the trial court cited testimony about the magazines
recovered from Unit 4281 “that didn’t have a partner[]” and expressed concern about
“Glock switches” that were not recovered but were instead indicated in “videos and photos
from their phones” observed by detectives. (Tr. at 88. See Tr. at 38, 67-68.) Though, of
note, Detective Walker did not claim any of the three defendants were depicted in videos or
photos possessing any of the firearms he described seeing in the media items extracted from No. 23AP-98
[SEGMENT 24]
the cell phones. (See Tr. at 38.) Ultimately, the trial court pronounced that “the size and
the type of the weapons * * * found in the residence, the fact that * * * there are
unaccounted-for weapons * * * [was] sufficient for me to raise the danger issue.” (Tr. at
88.)
{¶ 61} Though its contemplation of the matter is brief, the majority similarly
concludes that Detective Walker’s “testimony about the scale of the drug trafficking
operation and the quantity and type of weapons law enforcement officers did not recover is
sufficient to establish, by clear and convincing evidence, that Ivan posed a substantial risk
of serious physical harm to the community.” (Majority at ¶ 26.)
{¶ 62} One flaw in both the majority opinion and the trial court’s decision is that
both fail to appreciate the meaning of a key operative phrase in the statute: “substantial
risk.” To satisfy the second denial-of-bail condition, the state was required to show—and
the trial court find—“by clear and convincing evidence that [Ivan] poses a substantial
risk of serious physical harm * * * to the community.” (Emphasis added.) R.C.
2937.222(A), (B). “Substantial risk” is defined as “a strong possibility, as contrasted with a
remote or significant possibility, that a certain result may occur or that certain
circumstances may exist.” R.C. 2901.01(A)(8).
{¶ 63} The trial court found the firearms-related evidence sufficiently “raise[d] the
danger issue” (Tr. at 88), but such finding is not equivalent to the “substantial risk of serious
physical harm” finding R.C. 2937.222(B) requires. Even if it was, nothing in the record
established that Ivan ever had the ability to access the numerous firearms recovered, or the
seized unmatched magazines, or the unrecovered firearms that matched that ammunition.
(See Tr. at 26, 29.) Furthermore, Detective Walker conceded that he did not have any DNA
evidence linking the seized firearms from either the storage unit or residence to Ivan. (See
Tr. at 59-60.) And, nothing in the record suggests detectives ever specifically observed Ivan
possess any firearms, including in videos and photos extracted from the phones seized by
the police. Furthermore, and quite significantly, the record does not suggest Ivan had a
history of being violent toward others.
{¶ 64} Thus, the conclusion reached by both the trial court and the majority—that
guns, ammunition, and drugs not attributable to Ivan are sufficient to establish, by clear
and convincing evidence, that Ivan posed a substantial risk of serious physical harm to the No. 23AP-98
community—is analytically puzzling. This is because neither the trial court nor the majority
opinion meaningfully engage with the evidence presented at the denial-of-bailing hearing
or otherwise explain how that evidence meets what the controlling statute requires.
{¶ 65} The majority also fails to consider the improper inference stacking on which
both its and the trial court’s analysis rely. It is well-established in Ohio that “an inference
based solely and entirely upon another inference, unsupported by any additional fact or
another inference from other facts, is an inference on an inference and may not be indulged
in by [the trier of fact].” [CITATION], paragraph one of the syllabus. For this reason, “[a] finding of substantial risk may not be
based on an inference upon an inference in order to transform a speculative risk into a
substantial risk.” (Internal quotations and citations omitted.) [CITATION], ¶ 27 (1st Dist.).
{¶ 66} Essentially, the position of the trial court and the majority is that because
some unmatched magazines were found in the storage unit and some of the unattributed
phones recovered from the storage unit contained photographs of guns that were taken,
received, or sent at some point in time by some unidentified person(s), the state’s burden
as to Ivan is met. I disagree.
{¶ 67} Equally tenuous is the majority’s reasoning that Ivan poses a substantial risk
of serious physical harm to the community because he is affiliated with people who are
linked to firearms and a large-scale drug trafficking operation. (See Majority at ¶ 26.) The
phones showed Raymundo counting large amounts of money (Tr. at 39) and educating
customers on drug trafficking (see Tr. at 32). Detective Walker testified that information
provided by the federal drug authorities suggested Jessica had direct ties to the cartel. (Tr.
at 66.) He also described Raymundo and Jessica’s prior charges in a 2018 case with similar
facts. (Tr. at 39.) Noticeably absent from both Detective Walker’s testimony and the
majority opinion, however, is a recitation of particular evidence that supports finding Ivan
poses a substantial risk of serious physical harm to the community. That is not to say that
such evidence does not exist, but rather, that such individualized evidence about Ivan was
not presented to the trial court at the combined denial-of-bail hearing.
{¶ 68} It goes without saying that firearms always pose an inherent risk of serious
physical harm to the community. But, while the state may have presented sufficient No. 23AP-98
evidence to create some speculative risk posed by the existence of unaccounted-for
firearms, Glock switches, and high-capacity magazines that some or all of the codefendants
might be able to access, it is logically untenable to say that Detective Walker’s testimony
created a “strong possibility” that Ivan would cause “serious physical harm” to the
community. But, even more importantly, concluding otherwise would require the stacking
of multiple inferences upon each other, which is legally impermissible.
{¶ 69} Indeed, it could be appropriate to infer from the unmatched magazines seized
in Unit 4281 that unaccounted-for firearms exist. But the trial court’s finding requires the
stacking of additional inferences upon that inference: that Ivan is aware of the unrecovered
firearms, knows where they are located, can get access to them, and will use them. (See Tr.
at 87-89.) Even assuming that Ivan had access to the locations where firearms and
unmatched magazines were seized and setting aside the impermissible inference-stacking
issue, the trial court’s analysis still did not comply with the dictates of the governing statute.
That is to say, the trial court failed to evaluate whether any evidence clearly and
convincingly established a “strong possibility” that Ivan, specifically, would cause serious
physical harm to the community. The majority opinion fails to offer a convincing
explanation of how that failure did not violate R.C. 2937.222(B). And the majority does not
articulate its rationale for finding that Detective Walker’s testimony supports the specific
finding the statute requires in order to deny Ivan pre-trial bail.
{¶ 70} Because the state presented no evidence suggesting Ivan had access to these
unaccounted-for guns and failed to otherwise prove, by clear and convincing evidence, that
Ivan posed a substantial risk of serious physical harm to the community, I would find the
trial court’s denial of pre-trial bail in this case was contrary to law and unreasonable.
III. No Release Conditions Will Assure the Safety of the Community
{¶ 71} R.C. 2937.222(B)’s third condition required the trial court to consider
whether, if the accused posed a substantial risk of serious physical harm to any person or
the community, the state proved “by clear and convincing evidence that no release
conditions will reasonably assure the safety of that person and the community.” Again, the
state did not claim any of the three defendants posed any risk of harm to any specific
person. Instead, it generally cited to the harm drugs, cartels, and firearms can inflict upon
a community. No. 23AP-98
{¶ 72} Because I do not believe the state presented sufficient evidence to establish,
clearly and convincingly, that Ivan, specifically, posed a substantial risk of serious physical
harm to the community, addressing the third condition of the denial-of-bail statute is
unnecessary. However, given the disposition of this case and the process below, I believe it
is prudent to do so.
{¶ 73} At the hearing, the state did not explicitly argue there were no conditions of
release that would “reasonably assure the safety of * * * the community[]” from any
“substantial risk of serious physical harm” posed by Ivan. (See Tr. at 72-75.) And Detective
Walker’s hearing testimony did not directly relate to this issue either. Instead of focusing
on whether pre-trial conditions would reasonably assure the safety of the community,
as required by R.C. 2937.222(A) and (B), the state instead presented evidence and
arguments to support its contention that no pre-trial conditions would reasonably assure
the appearance of the three defendants at their trials—i.e., flight risk. (See Tr. at 38-
41, 73-74.)
{¶ 74} The trial court found the state’s evidence sufficiently established that all three
defendants presented a substantial flight risk—a general bond consideration in all criminal
cases. In support of this finding, the trial court cited to “ties to Mexico and other states for
all three defendants; California and Utah.” (Tr. at 85.) Because Ivan cannot be clearly
connected to the red truck—described as making trips to Mexico, California, and Utah (Tr.
at 16-20)—I cannot say the record supports this finding. Other evidence regarding Ivan’s
[SEGMENT 25]
3 Historically in Ohio, the “process of assessing bail [has been] governed by Crim.R. 46.” See [CITATION] at ¶ 20. Among other things, Crim.R. 46 permitted courts to consider flight risk when setting a
defendant’s pre-trial bail. See id. at ¶ 27, quoting Crim.R. 46(C). In January 2022, the Supreme Court held in
[CITATION] that a trial court could not consider a defendant’s threat to public safety when setting the cash amount
of bail. See id. at ¶ 33-34. In response, the Ohio General Assembly put forth a constitutional amendment that
explicitly overruled [CITATION]'s holding and, more broadly, eliminated the Supreme Court’s authority to set any
bail procedures through rule. See Ballotpedia, Ohio Issue 1, Determining Bail Amount Based on Public Safety
Amendment (2022), https://ballotpedia.org/Ohio_Issue_1,_Determining_Bail_Amount_Based_on_
Public_Safety_Amendment_(2022) (accessed Dec. 1, 2023). Voters approved that amendment in November
2022. See, e.g., Court News Ohio, Practice and Procedure Rule Proposals Filed with General Assembly,
https://www.courtnewsohio.gov/happening/2023/PracticeProcedureAmend_042823.asp (accessed Dec. 1,
2023). Based on that amendment’s passage, the Supreme Court approved a repeal of Crim.R. 46, which took
effect on July 1, 2023. See id. See also Supreme Court of Ohio, Final Rule Amendments,
https://www.supremecourt.ohio.gov/ruleamendments/archive.aspx (accessed Dec. 1, 2023). The Ohio
legislature recodified Crim.R. 46’s bail procedures by enacting R.C. 2937.011, which took effect on June 30,
2023. No. 23AP-98
ties to Mexico is likewise wanting. (See Tr. at 39-40.) The trial court’s flight-risk finding
also relied on evidence of a “well-financed operation.” (See Tr. at 85.) But, only Jessica was
specifically described as “a member or associate of the Sinaloa Cartel.” (Tr. at 34. See also
Tr. at 66.) And, only $2,100 in cash was recovered when the storage units and residence
were searched. (See Tr. at 40, 55, 66.) Without more, the record does not establish that
Ivan had access to any significant amount of money. Additionally, the trial court generally
referenced “the confiscation of fake passports and IDs in the place of residence.” (See Tr.
at 85.) Though, as already noted, the record does not indicate the quantity, quality, or type
of “fraudulent IDs and documents” detectives seized that pertained to Ivan.4 (See Tr. at 29-
31, 39-40.) The trial court also cited to the fact that “they moved apartments at least once
during the investigation[]” to support its finding that all three defendants posed a flight
risk. (Tr. at 85.) But, while the circumstances of the move may invoke suspicion generally,
I do not believe moving within the same county once over a six-month timeframe is
inherently indicative of a flight risk.
{¶ 75} The majority opinion generally echoes these same findings, but also
acknowledges the trial court’s explicit pronouncement that it could not deny pre-trial bond
on the basis of flight-risk concerns alone. (See Majority at ¶ 28. See Tr. at 81, 86.) Indeed,
the Ohio Supreme Court recently recognized that flight risk concerns “can be addressed by
other means, such as a daily reporting requirement to a probation officer and electronic
monitoring.” [CITATION] at ¶ 32, overruled on other grounds by constitutional
amendment. But to deny Ivan the right to pre-trial bond entirely, the record must contain
sufficient evidence from which the trial court could form a firm belief or conviction that no
release conditions will reasonably assure the safety of the community–not Ivan’s
attendance in court. R.C. 2937.222(C). See [CITATION], ¶ 16, citing [CITATION], 272
(1990) (“The sole purpose of bail is to ensure a person’s attendance in court.”).
{¶ 76} In finding the state’s evidence satisfied the third denial-of-bail condition, the
trial court simply stated it did not “believe any release conditions would reasonably assure
4 In addition to fleeing to avoid prosecution, it is worth noting that there are other reasons—e.g.,
undocumented status, underage purchase of age-restricted items, financial crimes—why a person may have
fraudulent identification documents. No. 23AP-98
the safety of the public from those [unaccounted-for] weapons.” (See Tr. at 88.) But even presuming the trial court’s finding that Ivan presented a substantial flight risk was sufficiently supported by the record—as discussed above, I do not believe that it was—I would nonetheless find the trial court’s analysis of the third condition failed to comply with the dictates of R.C. 2937.222(B). That is true for three reasons.
{¶ 77} First, the state presented no evidence on whether any pre-trial conditions could reasonably assure the safety of the community if Ivan were released on bail. Thus, the trial court had no evidentiary basis to find there were not. See R.C. 2937.222(A), (B). See also [CITATION]. And, of note, the majority opinion does not claim otherwise. (See Majority at ¶ 27-29.) Evidence suggesting that no bond conditions could reasonably assure a defendant’s appearance at trial is not commensurate with proof that the community’s safety could not reasonably be assured by any release conditions.
{¶ 78} Second, the trial court’s finding relied on evidence that could not be specifically connected to Ivan. After finding the “size and type” of the weapons recovered and the speculative evidence about the unaccounted-for weapons was “sufficient * * * to raise the danger issue[,]” the trial court pronounced the following:
I’m also going to find that because that is the issue, it’s not a
question of GPS. It’s not a question of maintaining their
location. I don’t believe any release conditions would
reasonably assure the safety of the public from those weapons.
So that being said, I find that the State has carried its burden in
this no-bond motion.
(Tr. at 88.)
{¶ 79} Fatal to such finding, however, is the absence of any evidence in the record connecting Ivan to these firearms, as discussed above. And, even assuming he had the ability to access the unaccounted-for firearms—or, for that matter, any of the millions of guns lawfully and unlawfully possessed by civilians in this country5—the state presented no specific evidence at the hearing to suggest, much less clearly and convincingly prove, that
5 See Jennifer Mascia and Chip Brownlee, How Many Guns Are Circulating in the U.S.?, https://www.thetrace.org/2023/03/guns-america-data-atf-total (accessed Dec. 1, 2023). No. 23AP-98
there was a “strong possibility” Ivan would access and use them. Surely, the general
existence of other firearms in the world cannot be sufficient to establish the clear-and-
convincing standard required by R.C. 2937.222(B).
{¶ 80} Finally, neither the trial court nor the majority opinion meaningfully consider
whether any pre-trial conditions other than GPS monitoring would reasonably assure
the safety of the community if Ivan were released on bail while awaiting trial. For instance,
the trial court did not evaluate whether house arrest or other pre-trial conditions would
reasonably protect the community from the possibility that Ivan might access and use guns.
Although the state elicited testimony from Detective Walker about Jessica and Raymundo’s
prior trafficking charges and flight to Mexico after being released on bail, Jessica’s
suspected cartel affiliation, and the suspected solvency of the cartel (see Tr. at 31-34, 39,
65-66), Detective Walker did not testify about Ivan’s prior criminal history (if any) or
otherwise claim Ivan was a member of the cartel.
{¶ 81} Like the trial court, the majority does not engage in an analysis as to whether
any conditions would keep the community safe. Instead, the majority confuses the fact that
Ivan might be a flight risk—which is a standard bond consideration, but not a basis for
denying bond under R.C. 2937.222—with what the statute’s third no-bond condition
actually requires. The majority cites as support evidence suggesting Ivan would have access
to “additional currency that could facilitate flight from the United States if [he was] released
on bond.” (Majority at ¶ 28.) But the majority does not explain how its concern that no
bond conditions would reasonably assure Ivan’s presence at trial is relevant to the
determination of whether any release conditions would reasonably assure the safety of
the community. Instead of engaging in that analysis, the majority—like the trial court—
then concludes that the large quantities of both the seized and unaccounted-for firearms
somehow “indicate[s] that no release conditions * * * could reasonably assure the safety of
the community[]” from Ivan, notwithstanding the absence of any evidence suggesting Ivan
had, could, or would ever possess, use, or otherwise come into contact with such weapons.
(See Majority at ¶ 29.)
{¶ 82} Before denying Ivan bail, the trial court was required to find, by clear and
convincing evidence, that no release conditions would reasonably assure the safety of the
community. R.C. 2937.222(B). However, nothing in the record suggests it meaningfully No. 23AP-98
[SEGMENT 26]
considered whether any condition other than GPS monitoring would suffice or relied on
evidence specific to Ivan when it concluded there was not.
{¶ 83} It is not my position that the state cannot meet the requirements of the third
condition, but, rather, that the trial court’s analysis and findings did not adhere to what the
statute requires. As such, I would find the trial court failed to comply with R.C. 2937.222(B)
when it analyzed the third condition supporting the denial of bail.
IV. Conclusion
{¶ 84} Because I do not find the record before this court contains clear and
convincing evidence of all three conditions required to deny Ivan bail under R.C. 2937.222,
I would sustain the sole assignment of error, reverse the trial court’s January 13, 2023
judgment, and remand this matter for further proceedings consistent with the governing
statute and the Ohio Constitution.
_________________________
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[CITATION]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Shler Irani, :
Plaintiff-Appellant, : No. 23AP-654
(C.P.C. No. 20CV-5763)
v. :
(REGULAR CALENDAR)
AMF Bowling Co. D/B/A :
AMF Sawmill Lanes et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on June 28, 2024
On brief: Mokhtari Law Firm, LLC, and Al A. Mokhtari, for
appellant. Argued: Al A. Mokhtari.
On brief: Gallagher, Gams, Tallan, Barnes, & Littrell,
L.L.P., and Mitchell M. Tallan, for appellees. Argued:
Mitchell M. Tallan.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Plaintiff-appellant, Shler Irani, appeals from several judgments issued by the
Franklin County Court of Common Pleas in favor of defendant-appellee, Saha Saadati. For
the following reasons, we affirm in part, reverse in part, and remand for further
proceedings.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} According to Irani’s complaint, on or about March 27, 2016, Irani was a
business invitee at a bowling alley owned and/or operated by AMF Bowling Centers, Inc.
(“AMF”). Irani alleged that AMF overserved alcoholic beverages to Saadati, who became
intoxicated, fell out of a chair onto Irani’s leg, and caused Irani serious injury. Irani asserted No. 23AP-654
a negligence claim against Saadati, and she sought recovery from AMF pursuant to the
Dram Shop Act, R.C. 4399.18.
{¶ 3} As reflected in the trial court decision and in the briefing in this court, Irani
originally filed this lawsuit on March 26, 2018, in case [CITATION], in the Franklin
County Court of Common Pleas. Saadati and AMF filed answers in case [CITATION]
and conducted discovery. AMF moved for summary judgment. On the date Irani’s
memorandum in opposition was due, she moved for an extension of time to respond to
AMF’s motion. The trial court granted Irani’s motion. On February 7, 2019, Irani timely
filed her memorandum in opposition to AMF’s motion for summary judgment.
{¶ 4} On March 8, 2019, while the motion for summary judgment was pending,
Irani moved to continue the trial date, which the original case schedule had set for
March 25, 2019. Irani requested the continuance so she could complete a scheduled round
of treatment for her leg injury. The trial court responded by vacating the trial date.
{¶ 5} On August 29, 2019, the trial court issued a decision and entry that granted
AMF’s motion for summary judgment.
{¶ 6} On September 20, 2019, Saadati filed a motion seeking to exclude from the
trial medical records and bills that Irani did not disclose to Saadati until after August 14,
2019. Saadati complained that his expert witness did not have sufficient time to review the
documents before his deposition, scheduled for September 26, 2019. Saadati also protested
that Irani was late in turning over these documents, given that trial was scheduled for
October 7, 2019.
{¶ 7} On September 25, 2019, shortly before the scheduled trial date, Irani
dismissed the complaint in case [CITATION], without prejudice, by filing a notice of
dismissal pursuant to Civ.R. 41(A)(1)(a).
{¶ 8} On August 31, 2020, Irani refiled essentially the same complaint against
Saadati and AMF in [CITATION]. The trial court issued an original
case schedule that set March 15, 2021 as the date for the supplemental joint disclosure of
all witnesses. On that date, Irani disclosed several medical experts, including Dr. Robert
Magnussen, Irani’s treating orthopedist, and Dr. Scott Olenick, Irani’s treating
psychologist. Regarding both Dr. Magnussen and Dr. Olenick, Irani’s disclosure stated,
“This expert is a treating physician rather than a retained expert, who will be asked to testify No. 23AP-654
consistent with the opinions and facts set forth in the treatment records of this treating
physician.” (Mar. 15, 2021 Pl.’s Disclosure of Witnesses at 3-4.) Irani did not identify any
retained medical experts in her supplemental disclosure of witnesses.1
{¶ 9} On May 24, 2021, the trial court issued an entry granting the parties’ joint
motion to continue the case scheduling deadlines. The trial court rescheduled the trial date
for January 31, 2022.
{¶ 10} On October 28, 2021, Irani voluntarily dismissed her claims against AMF.
{¶ 11} On December 17, 2021, Irani belatedly disclosed a retained expert witness,
Dr. Timothy Lubenow. Saadati immediately moved the trial court to exclude the expert
witness due to the untimely disclosure. In her motion, Saadati contended that she had
expended considerable resources to prepare for trial already. She pointed out that her
expert had just reviewed approximately 1,000 pages of supplemental discovery responses
that Irani had only produced five months previously. In response to this motion, Irani
proposed that the trial court extend the case scheduling deadlines to allow time for Saadati
to review and decide how to respond to Dr. Lubenow’s report.
{¶ 12} The trial court did not immediately rule on the motion to exclude
Dr. Lubenow. Instead, on January 10, 2022, the trial court issued an entry vacating the
previously scheduled pre-trial and trial dates. The entry explained that the Franklin County
Court of Common Pleas had limited the number of jurors entering the courthouse due to
the COVID-19 pandemic, and thus, the court had instituted a rotating schedule for all jury
trials. The trial court had to vacate the parties’ trial because the court was not available for
trial on January 31, 2022. Ultimately, the trial court rescheduled trial for October 17, 2022.
{¶ 13} On September 16, 2022, the trial court issued a judgment entry granting
Sadaati’s December 17, 2021 motion and excluding Dr. Lubenow from testifying at trial.
The trial court ruled that:
Here, it is without question that Plaintiff’s disclosure of
Dr. Lubenow as an expert witness was untimely and Plaintiff
has admitted as much. The Court is not convinced by any of
Plaintiff’s justifications for this tardiness and cannot find that
good cause existed for the late disclosure. Thus, the late
disclosure constitutes a violation of the Local Rules. Due to the
1 An expert is retained if he or she “comes to the case as a stranger and draws the opinion from facts supplied
by others, in preparation for trial.” [CITATION]. When an expert is part of the ongoing sequence of events, his opinion testimony is not retained. Id. No. 23AP-654
belated disclosure and the prejudice it would cause to
Defendant, the Motion to Exclude is GRANTED. Timothy
Lubenow, M.D. is excluded as an expert in this matter and is
not permitted to provide testimony at trial.
(Emphasis sic.) [CITATION])
{¶ 14} On September 27, 2022, the trial court issued an entry vacating the trial set
for October 17, 2022. The trial court rescheduled the trial for August 7, 2023.
{¶ 15} On June 13, 2023, Irani filed a motion asking the trial court to reconsider its
earlier decision excluding Dr. Lubenow as an expert witness. In the alternative, Irani
requested that the trial court permit her to call Dr. Lubenow as a rebuttal witness. In a
decision and entry dated July 11, 2023, the trial court denied Irani’s motion, stating,
“Dr. Lubenow will not be allowed to testify at the trial in this matter.” [CITATION])
{¶ 16} On July 12, 2023, Irani’s attorney caused subpoenas to issue to
Drs. Magnussen and Olenick commanding them to attend and give testimony at the
August 7, 2023 trial. Each subpoena directed the subpoenaed person to contact the law
firm of Irani’s attorney “to confirm appearance and for scheduling purposes.” (Emphasis
omitted.) [CITATION])
{¶ 17} On July 21 and July 23, 2023, Saadati and Irani submitted their respective
pre-trial statements. The parties primarily disagreed about Irani’s claim that she suffers
from Complex Regional Pain Syndrome (“CRPS”) and depression as a proximate result of
the incident at the bowling alley.
{¶ 18} At the July 24, 2023 pre-trial conference, Irani’s attorney told the trial court
that subpoenas to Drs. Magnussen and Olenick had been issued and he expected both
doctors to testify at trial. Subsequent to the pre-trial conference, Drs. Magnussen and
Olenick contacted the law firm of Irani’s counsel as advised by the subpoenas. Both doctors
expressed a preference for providing their trial testimony via deposition. Irani’s attorney,
therefore, deposed Dr. Olenick on August 1, 2023 and Dr. Magnussen on August 2, 2023.
At these depositions, Saadati’s attorney learned that Irani’s attorney had not offered to
compensate either witness for testifying.
{¶ 19} At an August 2, 2023 pre-trial conference, the trial court learned about the
completed deposition of Dr. Olenick and the upcoming deposition of Dr. Magnussen. The No. 23AP-654
[SEGMENT 2]
trial court stated that it was “troubled” because: (1) Irani’s attorney used Civ.R. 45
subpoenas, rather than deposition notices, to obtain the witnesses’ attendance at the
depositions, (2) Irani’s attorney did not offer to compensate Dr. Olenick prior to his
deposition, and (3) Irani’s attorney was deposing Drs. Olenick and Magnussen in an
attempt to secure expert testimony that the trial court believed it had excluded from trial.
(Aug. 2, 2023 Tr. at 23.) In response, Irani’s attorney protested he complied with the Civil
Rules of Ohio Procedure and court orders in deposing Dr. Olenick and scheduling
Dr. Magnussen’s deposition.
{¶ 20} On August 7, 2023, the scheduled trial date, the trial court began proceedings
by stating:
This matter is set for trial on today[,] however, over the past
four to five days there have been a series of developments that
the Court finds both challenging and concerning. And so what
I want to do before I address those issues that have risen over
the last four to five days, I think it’s really important for me to
read into the record kind of a procedural history and some
other information that will help to explain what it is that the
Court will do on today.
(Aug. 7, 2023 Tr. at 2-3.) The trial court proceeded to recount the procedural history of
both the original 2018 case and the refiled case. The trial court also summarized its issues
with the depositions of Drs. Magnussen and Olenick, and the court asked Irani’s attorney
to explain his decision-making regarding scheduling and conducting those depositions.
The trial court then announced that the trial would not occur that day, and instead, the
court would hold a hearing the next day so Irani could show cause why the court should not
dismiss her case under Civ.R. 41(B)(1).
{¶ 21} The show cause hearing occurred on August 8, 2023. On October 5, 2023,
the trial court issued a decision and judgment entry dismissing Irani’s complaint, pursuant
to Civ.R. 41(B)(1), for failure to prosecute. The judgment entry concludes that “Irani and
her counsel failed habitually in complying with the Rules of Civil Procedure and this Court’s
orders and, therefore, the Court hereby finds that this matter is DISMISSED WITH
PREJUDICE.” (Emphasis sic.) (Oct. 5, 2023 Order & Entry Dismissing Pl.’s Compl. with
Prejudice Pursuant to Civ.R. 41(B)(1) at 21.) No. 23AP-654
{¶ 22} Irani timely appealed to this court from the judgments issued on
September 16, 2022, July 11, 2023, and October 5, 2023.
II. ASSIGNMENTS OF ERROR
{¶ 23} Irani assigns the following errors on appeal:
[1.] The trial court abused its discretion by sua sponte setting a
show cause hearing and ultimately dismissing Appellant’s
Complaint with prejudice for failure to prosecute pursuant to
Civ.R. 41(B)(1), rather than empaneling a jury and proceeding
to trial when all parties and counsel presented themselves
prepared and with every intention of proceeding with trial.
[2.] The trial court abused its discretion by precluding retained
medical expert Timothy Lubenow, M.D. from testifying in
Appellant’s case in chief, despite a lack of prejudice to Appellee.
[3.] The trial court abused its discretion by precluding retained
medical expert Timothy Lubenow, M.D. from testifying as a
rebuttal witness at trial, in response to new opinions disclosed
by the defense medical expert during his video trial deposition.
(Emphasis sic.)
III. LEGAL ANALYSIS
{¶ 24} For purposes of clarity, we shall consider the assignments of error out of
order.
A. Second Assignment of Error – Exclusion of Retained Expert Witness
{¶ 25} In her second assignment of error, Irani argues that the trial court erred when
it excluded the testimony of her retained medical expert, Dr. Lubenow, due to untimely
disclosure. We disagree.
{¶ 26} The trial court excluded Dr. Lubenow as an expert witness because Irani
failed to comply with former Loc.R. 43 of the Franklin County Court of Common Pleas,
General Division.[CITATION] Under former Loc.R. 43.01, each party, “not later than the date for
disclosure designated in the Case Schedule,” was required to “serve on all parties and file
with the court a written disclosure of all persons with relevant factual or expert knowledge
whom the party reserves the option to call as witnesses at trial.” Parties were then required
[CITATION] No. 23AP-654
to file supplemental disclosures of witnesses by the date designated in the case schedule “of
all persons whose factual or expert knowledge did not appear relevant until the witnesses
were initially disclosed.” Former Loc.R. 43.02. Former Loc.R. 43.04 stated that “[a]ny
witness not disclosed in compliance with this rule may not be called to testify at trial, unless
the Trial Judge orders otherwise for good cause and subject to such conditions as justice
requires.”
{¶ 27} The admission or exclusion of evidence is generally within the discretion of
the trial court, so long as that discretion is exercised in line with the rules of procedure and
evidence. [CITATION]. Consequently, an appellate court
will not reverse a trial court’s decision to admit or exclude evidence absent an abuse of
discretion. [CITATION].
{¶ 28} In this case, Irani concedes that she did not timely disclose the identity or
opinions of her retained expert witness. She contends, however, that the trial court abused
its discretion by excluding her expert witness for her failure to comply with the disclosure
deadline. Relying on [CITATION], Irani
argues that an appellate court will not affirm the trial court’s exclusion of an expert witness
unless the opposing party is unfairly prejudiced by the belated disclosure of that witness.
{¶ 29} In [CITATION], the trial court excluded the testimony of the plaintiff-
appellant’s medical expert witness because the plaintiff-appellant failed to file the necessary
disclosures of witnesses. On appeal, this court agreed that the plaintiff-appellant did not
file any disclosures of witnesses. We determined, however, that the defendant-appellee was
otherwise apprised of the expert witness the plaintiff-appellant intended to use at trial
because the defendant-appellee received the plaintiff-appellant’s medical records in
discovery, which named all the plaintiff-appellant’s medical providers. The plaintiff-
appellant had informed the defendant-appellee she would call her medical providers as
witnesses, and the expert witness was one of the plaintiff-appellant’s medical providers.
Consequently, the defendant-appellee suffered little prejudice or surprise from the
plaintiff-appellant’s failure to file disclosures of witnesses. [CITATION]. This court thus
concluded the sanction of excluding the plaintiff-appellant’s expert witness was not No. 23AP-654
proportional to the violation, and the trial court had abused its discretion in not imposing
a less severe penalty. [CITATION] at ¶ 18-19.
{¶ 30} [CITATION] is distinguishable on its facts. Here, unlike [CITATION],
Dr. Lubenow was not involved in Irani’s medical treatment. Saadati was unaware of
Dr. Lubenow’s involvement in the case until the untimely disclosure by Irani,
approximately ten months after the supplemental witness disclosure date and two months
prior to the scheduled trial date. In [CITATION], the defendant-appellee knew that the
plaintiff-appellant intended to call the medical provider as a witness “well enough in
advance of trial to allow defendant to prepare to question plaintiff’s expert in deposition
testimony.” [CITATION] at ¶ 19. Irani understood that her late disclosure of Dr. Lubenow did not
give Saadati’s attorney this same opportunity, as she requested postponement of the trial
date to mitigate the “ ‘time crunch’ ” caused by the belated identification of Dr. Lubenow as
an expert witness. (Dec. 24, 2021 Pl.’s Memo in Opp. to Def.’s Mot. to Exclude at 4, quoting
the Dec. 17, 2021 email from Pl.’s attorney to Def.’s attorney.)
{¶ 31} Irani argues alternatively that any prejudice to Saadati from the late
disclosure of Dr. Lubenow was alleviated by the subsequent continuances of the trial date
and seven-month delay in ruling on the motion to exclude. Irani claims that even though
the disclosure was untimely, the subsequent delay of the trial gave Saadati sufficient time
to prepare for Dr. Lubenow’s testimony. We disagree.
{¶ 32} Prior to the time the trial court ruled on the motion to exclude, Saadati was
under no obligation to spend valuable time and resources preparing for an expert witness
who was not timely disclosed and who may not be permitted to testify. Moreover, when the
trial court granted the motion to exclude Dr. Lubenow’s testimony on September 16, 2022,
the trial date was a mere month away, on October 17, 2022. Thus, even though seven
months had passed since the parties had briefed the motion to exclude, there still existed
unfair prejudice to Saadati, i.e., insufficient time before trial to review Dr. Lubenow’s
opinion with her own expert and/or depose Dr. Lubenow. Although the trial court later
postponed the trial date, that postponement occurred after the court excluded
Dr. Lubenow’s testimony, so it could not factor into the court’s prejudice determination
when ruling on the motion to exclude. No. 23AP-654
[SEGMENT 3]
{¶ 33} Under the circumstances, we cannot say that the trial court abused its
discretion by excluding Irani’s expert witness, as the untimely disclosure of Dr. Lubenow
caused Saadati unfair prejudice. Given this unfair prejudice, the trial court did not err in
determining a lack of good cause existed to allow Dr. Lubenow to testify at trial.
Accordingly, we overrule Irani’s second assignment of error.
B. Third Assignment of Error – Exclusion of Retained Expert Witness as a
Rebuttal Witness
{¶ 34} In her third assignment of error, Irani argues that the trial court erred when
it denied her motion to allow her to call Dr. Lubenow as a rebuttal witness. We disagree.
{¶ 35} Rebuttal testimony is testimony “given to explain, refute, or disprove new
facts introduced into evidence by the adverse party; it becomes relevant only to challenge
the evidence offered by the opponent, and its scope is limited by such evidence.” State v.
[CITATION]. Generally, the admission or exclusion of rebuttal
testimony is a matter within the discretion of the trial court, and a ruling admitting or
excluding such testimony will not be reversed absent an abuse of discretion. [CITATION].
However, a trial court’s discretion
over the admission or exclusion of rebuttal testimony is not absolute. Id. Rather, “[a] party
has an unconditional right to present rebuttal testimony on matters which are first
addressed in an opponent’s case-in-chief and should not be brought in the rebutting party’s
case-in-chief.” [CITATION]. Consequently,
“a party possesses an unconditional right to present rebuttal testimony if: (1) the evidence
is not cumulative; (2) the evidence would not be appropriate for the party’s case-in-chief;
and (3) the evidence is first addressed in the opponent’s case-in-chief.” [CITATION].
{¶ 36} In this case, Irani contends that, consistent with his expert report,
Dr. Lubenow would testify that Irani: (1) suffers from CRPS as a result of the incident at the
bowling alley, (2) needs further treatment for CRPS, and (3) suffers from depression and
anxiety as a result of her injury and will likely need further treatment for that, as well. Not
only is this evidence appropriate for Irani’s case in chief, but it is also evidence she intended
to attempt to produce during her case in chief though the testimony of Drs. Magnussen and
====== end of Part of a Court Ruling ====== No. 23AP-654
Olenick. Therefore, Irani does not have an unconditional right to present Dr. Lubenow’s
testimony on rebuttal.
{¶ 37} Additionally, we note that this court has called into question whether
Phung’s “unconditional right” to present rebuttal testimony applies to a situation where a
party wishes to call an expert witness on rebuttal even though the trial court has previously
excluded the witness from testifying in the party’s case in chief because the party failed to
timely disclose the witness. [CITATION] In [CITATION], the Court of Claims excluded the plaintiff-
appellant’s expert witness due to the plaintiff-appellant’s failure to timely disclose the
expert and provide an expert report as required by a local rule. The plaintiff-appellant then
sought to call the excluded expert witness to give rebuttal testimony. The trial court refused
to allow the expert witness to testify on rebuttal.
{¶ 38} On appeal to this court, the plaintiff-appellant argued that the trial court
erred by excluding the testimony of its rebuttal witness. This court agreed with the
defendant-appellee that the local rule requiring disclosure made no exception for instances
where a party intends to call an expert witness on rebuttal. This court then addressed the
plaintiff-appellant’s contention that the Supreme Court of Ohio’s decision in Phung applied
to expert witnesses:
We find it unlikely that the Supreme Court of Ohio in Phung
meant to establish an absolute rule that a plaintiff in a civil case
may completely disregard a trial court’s local rules and orders
concerning the presentation of expert evidence simply because
the plaintiff purports to “reserve” the witness for possible
rebuttal purposes, and regardless of whether the plaintiff is
surprised by the evidence first produced by the defendant at
trial, or whether that evidence concerns expert witness
opinions as opposed to testimony concerning facts.
[CITATION] No. 23AP-654
{¶ 39} We have determined the untimely disclosure of Dr. Lubenow unfairly
prejudiced Saadati and the trial court did not abuse its discretion when it excluded Irani’s
expert witness from testifying in her case in chief. Consequently, we cannot say that the
trial court abused its discretion in prohibiting Dr. Lubenow from testifying as a rebuttal
witness. We thus overrule Irani’s third assignment of error.
C. First Assignment of Error – Failure to Prosecute
{¶ 40} In her first assignment of error, Irani contends that the trial court erred when
it sua sponte dismissed her complaint for failure to prosecute. We agree.
{¶ 41} Civ.R. 41(B)(1) provides that “[w]here the plaintiff fails to prosecute, or
comply with these rules or any court order, the court upon motion of a defendant or on its
own motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.” This
court reviews a trial court’s decision to dismiss a case under Civ.R. 41(B)(1) for an abuse of
discretion. [CITATION], ¶ 8. An abuse of discretion generally implies that the trial court’s attitude was arbitrary,
unreasonable, or unconscionable. Id. However, in [CITATION], the Supreme Court adopted a heightened standard of review for a dismissal
with prejudice pursuant to Civ.R. 41(B)(1):
[T]he extremely harsh sanction of dismissal should be reserved
for cases when [a party’s] conduct falls substantially below
what is reasonable under the circumstances evidencing a
complete disregard for the judicial system or the rights of the
opposing party. In other words, dismissal is reserved for those
cases in which the conduct of a party is so negligent,
irresponsible, contumacious or dilatory as to provide
substantial grounds for a dismissal with prejudice for a failure
to prosecute or obey a court order. Absent such extreme
circumstances, a court should first consider lesser sanctions
before dismissing a case with prejudice. It is a basic tenet of
Ohio jurisprudence that cases should be decided on their
merits. Thus, although reviewing courts espouse an ordinary
abuse of discretion standard of review for dismissals with
prejudice, that standard is actually heightened when
reviewing decisions that forever deny a plaintiff a review of a
claim’s merits.
(Emphasis added.) (Internal citations and quotations omitted.) Id. at 158. No. 23AP-654
{¶ 42} The trial court dismissed Irani’s case under Civ.R. 41(B)(1) because she
“failed habitually in complying with the Rules of Civil Procedure and [the] Court’s orders.”
(Oct. 5, 2023 Order & Entry Dismissing Pl.’s Compl. at 21.) In the analysis portion of its
decision, the trial court recounts those incidents that it believes constitute “Irani’s pattern
and practice of flouting her obligations to comply with the rules.” Id. at 15.
{¶ 43} Initially, we note that, in actuality, the trial court criticizes Irani for multiple
actions that do not amount in a violation of the Ohio Civil Rules of Procedure or a court
order. To justify a dismissal under Civ.R. 41(B)(1), the negligent, irresponsible, or
contumacious conduct of a party must result in the violation of a civil rule or court order.
[CITATION] We thus do not discuss or review the conduct the trial court criticizes that
does not arise to that level.
{¶ 44} The trial court first cites two violations of a civil rule and/or court order that
occurred in case No. 18CV-2610. In dismissing an action under Civ.R. 41(B)(1), a trial court
may consider the entire history of the litigation, including a previously filed, and voluntarily
dismissed, action. [CITATION] However, as Saadati points out, the record in case No.
18CV-2610 is not part of the record in the case currently on appeal. Nevertheless, an
appellate court may take judicial notice of public court records readily accessible on the
internet. [CITATION] Because the court filings in case
No. 18CV-2610 are publicly available on the internet, we take judicial notice of them.
{¶ 45} In the first incident the trial court refers to from case No. 18CV-2610, Irani
moved for an extension of time to file her memorandum in opposition to AMF’s motion for
summary judgment on the date her memorandum was due. The trial court granted the
extension, and Irani filed her memorandum in opposition within the time the trial court
provided. While Irani should have sought an extension earlier, she complied with Civ.R.
6(B) in moving for the extension and, because the trial court granted her the extension, she
timely filed her memorandum in opposition. We, therefore, conclude that no rule violation
occurred.
{¶ 46} In the second incident, Irani belatedly disclosed medical bills to Saadati after
the discovery cutoff date and, apparently, in violation of Civ.R. 34. Saadati moved to No. 23AP-654
[SEGMENT 4]
exclude evidence of the medical bills from trial. [CITATION], however, voluntarily dismissed her
complaint five days after [CITATION] moved to exclude the medical bills, thus mooting [CITATION]’s
motion and [CITATION]'s discovery violation.
{¶ 47} Turning to this case, the trial court found more violations of the civil rules
and/or court orders. First, [CITATION] failed to comply with the original case schedule when she
did not timely disclose her retained expert witness, Dr. Lubenow. The trial court, however,
sanctioned [CITATION] for this failure by excluding Dr. Lubenow from testifying.
{¶ 48} Second, the trial court noted that, according to [CITATION] was late in
providing discovery responses, an apparent violation of Civ.R. 33 and 34. Although [CITATION]
may not have timely produced the requested discovery, [CITATION] did not move to compel
production of that discovery. [CITATION] only informed the trial court of [CITATION]'s discovery lapse
to buttress her motion to exclude Dr. Lubenow’s testimony.
{¶ 49} Third, [CITATION] moved for an extension of time to file a memorandum in
opposition to a motion in limine. As the trial court did not grant [CITATION] this extension, she
filed her memorandum in opposition late, a violation of Civ.R. 6(C)(2).
{¶ 50} The trial court primarily dismissed [CITATION]'s case because [CITATION] supposedly
misused the court’s subpoena power. The trial court had multiple reasons for this
conclusion: (1) [CITATION] violated Civ.R. 45 by using subpoenas to obtain Drs. Magnussen’s and
Olenick’s attendance at their trial depositions, (2) [CITATION] violated court orders precluding
any expert witness from testifying by attempting to obtain Dr. Magnussen’s expert opinions
at his deposition, (3) [CITATION] implied to Drs. Magnussen and Olenick that they could be
subject to court sanction if they did not testify, and (4) [CITATION] failed to advise the doctors that
they were entitled to payment for their expert testimony. We will address each reason in
order.
{¶ 51} The subpoenas issued to the doctors commanded them to attend and give
testimony at a jury trial on August 7, 2023. However, at the doctors’ requests, [CITATION]'s
attorney deposed the doctors instead of insisting they appear at trial. In conducting trial
depositions of the doctors, [CITATION]'s attorney was complying with Civ.R. 45(C)(1), which
states, “A party or an attorney responsible for the issuance and service of a subpoena shall
take reasonable steps to avoid imposing undue burden * * * on a person subject to that
subpoena.” Moreover, Civ.R. 30(A) permits a party to use a subpoena to compel a non- No. 23AP-654
party witness’s deposition. [CITATION] (“The attendance of a witness deponent may be compelled by the use of subpoena as provided by Civ.R. 45.”). Consequently, Irani properly invoked Civ.R. 45 to obtain the testimony of Drs. Magnussen and Olenick at their depositions.
{¶ 52} Next, the trial court contends that Irani’s attorney elicited deposition testimony from Dr. Magnussen in violation of court orders “preclud[ing] [Irani] from providing expert testimony based on the failure to comply with the Court’s deadline for identification of an expert witness.” (Oct. 5, 2023 Order & Entry Dismissing Pl.’s Compl. at 20.) In its September 16, 2022 and July 11, 2023 decisions and entries, the trial court found that Irani failed to timely disclose Dr. Lubenow as an expert witness, and the court excluded his testimony. However, the September 16, 2022 and July 11, 2023 decisions and entries do not bar Irani from providing any expert testimony. The trial court’s decisions and entries do not mention, much less exclude, the testimony of Drs. Magnussen. Consequently, no court order precludes him from testifying as an expert witness.4
{¶ 53} The trial court also criticizes Irani for intimating to the doctors that if they did not appear for their depositions, they would be subject to court sanction. In fact, neither doctor testified that Irani’s attorney said or suggested to him that he could be subject to court sanction if he did not testify. Even if the attorney had said or suggested that, however, he would not be wrong. According to Civ.R. 45(E), “[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.” That warning appeared on the subpoenas served on the doctors and may have been why the doctors believed they had an obligation to testify.
{¶ 54} Finally, the trial court finds fault with Irani’s counsel for not advising Drs. Magnussen and Olenick that they were entitled to compensation for their expert testimony. Although Civ.R. 45 provides safeguards to protect unretained experts, those safeguards do not include a requirement that an attorney advise an unretained expert of a right to payment. Instead, an unretained expert who receives a subpoena to testify may seek to quash or modify that subpoena under Civ.R. 45(C)(3)(c) and (C)(5), which provide:
4 Tangentially, we note that Irani timely disclosed Drs. Magnussen and Olenick as unretained expert witnesses in her March 15, 2021 supplemental disclosure of witnesses. Therefore, former Loc.R. 43.03 does not bar their testimony. No. 23AP-654
(3) On timely motion, the court from which the subpoena was
issued shall quash or modify the subpoena, or order
appearance or production only under specified conditions, if
the subpoena does any of the following:
***
(c) Requires disclosure of a fact known or opinion held by an
expert not retained or specially employed by any party in
anticipation of litigation or preparation for trial as described by
Civ.R. 26(B)(7)(h), if the fact or opinion does not describe
specific events or occurrences in dispute and results from study
by that expert that was not made at the request of any party[.]
***
(5) If a motion is made under division (C)(3)(c) * * * of this
rule, the court shall quash or modify the subpoena unless the
party in whose behalf the subpoena is issued shows a
substantial need for the testimony or material that cannot be
otherwise met without undue hardship and assures that the
person to whom the subpoena is address will be reasonably
compensated.
{¶ 55} Civ.R. 45(C)(3)(c) is modeled after Fed.R.Civ.P. 45(d)(3)(B)(ii). 1993 Staff
Note, Civ.R. 45. Both the federal and state rule were adopted because compelling
unretained experts to give opinion testimony forces them to give up their intellectual
property without the opportunity to bargain for the value of their services. 1991 Notes of
Advisory Committee, Civ.R. 45(c)(3)(B)(ii) (because of later revisions to the Federal Rules
of Civil Procedure, the text originally located at Fed.R.Civ.P. 45(c)(3)(B)(ii) is now found at
Fed.R.Civ.P. 45(d)(3)(B)(ii)).
{¶ 56} Although there are scant Ohio cases interpreting Civ.R. 45(C)(3)(c), federal
precedent has developed applying Fed.R.Civ.P. 45(d)(3)(B)(ii). Generally, opinion
testimony is shielded by Fed.R.Civ.P. 45(d)(3)(B)(ii); factual information is not. [CITATION]; accord [CITATION] (“When * * * a party seeks
only factual information relating to an issue in the case, a witness cannot demand any
greater compensation than any other witness merely because he or she can claim some
expertise in a discipline or calling.”), [CITATION], quoting 1991 Notes of Advisory Committee, Civ.R. No. 23AP-654
45(c)(3)(B)(ii) (“Discovery of * * * purely factual information does not comprise the
‘intellectual property’ of [a witness] and is therefore not protected by Rule
45([d])(3)(B)(ii).”). Thus, under Fed.R. 45(d)(3)(B)(ii), the decision to quash is informed
by the degree to which the expert is called because of his knowledge of facts relevant to the
case rather than to give expert testimony. [CITATION] at 76. In other words, the court must parse
whether the subpoenaing party seeks testimony regarding information learned through the
witness’s direct observations or information learned through the witness’s own study. [CITATION]. We apply this same interpretation to
Civ.R. 45(C)(3)(c).
{¶ 57} Both Drs. Magnussen and Olenick could have moved, pursuant to Civ.R.
45(C)(3)(c), to limit their subpoenas so that they only had to testify regarding the facts, i.e.,
the specific events in dispute that they personally observed.5 Had the doctors filed such
motions, Irani would have had the opportunity to argue that she had a substantial need for
their opinion testimony, that she could not otherwise meet without undue hardship, and to
offer the doctors reasonable compensation for their opinion testimony. Because the
doctors did not move under Civ.R. 45(C)(3)(c) to modify the subpoenas, nothing limited
the scope of their depositions only to the facts. Additionally, the question of compensation
for Drs. Magnussen and Olenick for their expert testimony never arose under Civ.R. 45.
{¶ 58} Optimally, Irani would voluntarily pay Drs. Magnussen and Olenick for their
opinion testimony. Irani represented to the trial court that he has offered to do so.
However, Irani did not violate the civil rules by failing to advise Drs. Magnussen and
Olenick that they were due compensation for any expert testimony they gave in their trial
depositions.
{¶ 59} Having reviewed all the alleged violations of the civil rules and court orders
set forth by the trial court, we cannot conclude that Irani’s conduct evinces such a complete
disregard for the judicial system that dismissal is warranted. The trial court relied heavily
on Irani’s actions in deposing Drs. Magnussen and Olenick to justify the dismissal. Irani’s
actions, however, violated neither Civ.R. 45 nor a court order. Although Irani’s failure to
timely disclose Dr. Lubenow as an expert witness was a serious lapse, the trial court
[SEGMENT 5]
5 The subpoenas issued to Drs. Magnussen and Olenick set forth the text of Civ.R. 45(C)(3)(c), as required by
Civ.R. 45(A)(1)(c). No. 23AP-654
sanctioned Irani for that lapse by excluding Dr. Lubenow’s testimony. The remaining
violations of the civil rules and court orders do not amount to the type of misconduct that
merits the extreme sanction of dismissal.
{¶ 60} Given our standard of review, which requires heightened scrutiny of Civ.R.
41(B)(1) dismissals, we conclude it was not reasonable for the trial court to dismiss the case
on the eve of trial. Accordingly, we hold that the trial court abused its discretion by
imposing the most severe sanction of dismissal without first considering other available
sanctions. We thus sustain Irani’s first assignment of error.
IV. Conclusion
{¶ 61} For the foregoing reasons, we sustain Irani’s first assignment of error, and we
overrule Irani’s second and third assignments of error. Therefore, we affirm the Franklin
County Court of Common Pleas’ September 16, 2022 and July 11, 2023 judgments, and we
reverse the October 5, 2023 judgment. We remand this matter for further proceedings
consistent with law and this decision.
September 16, 2022 and July 11, 2023 judgments affirmed;
October 5, 2023 judgment reversed;
and cause remanded.
MENTEL, P.J., and EDELSTEIN, J., concur.
_____________
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Marjorie Jackson, :
Plaintiff-Appellee, : No. 23AP-325
(C.P.C. No. 22DR-1401)
v. :
(REGULAR CALENDAR)
Dwayne Jackson, :
Defendant-Appellant. :
D E C I S I O N
Rendered on May 7, 2024
On brief: Trolinger Law Offices LLC, and Christopher L.
Trolinger for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
EDELSTEIN, J.
{¶ 1} Defendant-appellant, Dwayne Jackson, appeals from the May 11, 2023
judgment entry and divorce decree granted by the Franklin County Court of Common Pleas,
Division of Domestic Relations. For the following reasons, we reverse and remand to the
trial court for further proceedings.
I. Facts and Procedural History
{¶ 2} Dwayne and plaintiff-appellee, Marjorie Jackson, were married in Columbus,
Ohio on September 24, 1994. The marriage produced one child, who was born on June 19,
2004. (May 3, 2022 Compl. at ¶ 2.) In 2022, Marjorie filed for divorce. In her complaint,
Marjorie asserted the parties owned two properties in Columbus: a residential property
located at 1970 Greenway Avenue North and a commercial property located at 997 Mount
Vernon Avenue. (Id. at ¶ 4.) No counterclaim was filed by Dwayne. Prior to the No. 23AP-325
commencement of trial, Marjorie moved for an order permitting the sale of the commercial
property, with the disposition of sale proceeds to be determined at a later date. (Aug. 9,
2022 Mot.) Dwayne filed his response to the motion the following day and asserted he
wanted to keep the property, therefore its disposition should be determined at the same
time as all other marital assets. (Aug. 10, 2022 Def.’s Resp. to Pl.’s Mot.) The motion was
dismissed as moot for failure to prosecute at the commencement of trial. [CITATION]
{¶ 3} Both parties filed pre-trial statements once the matter was scheduled for trial.
The statements differed on several notable issues, including whether the marriage’s
termination date should be the date of separation on January 8, 2021 (per Marjorie) or the
date of the final hearing (per Dwayne), as well as a property in West Virginia that Marjorie
listed as an asset but Dwayne did not. (Sept. 28, 2022 Pl.’s Pre-trial Statement at 2; Oct. 2,
2022 Def.’s Pre-trial Statement at 2.) The parties’ estimated valuations of the two
Columbus properties were fairly close, but both statements independently noted each of
the properties still required an appraisal. (Id.)
{¶ 4} Trial commenced on April 12, 2023. Both parties proceeded pro se. Under
its statutory mandate, the trial court was tasked with classifying property as either separate
or marital property, and, upon making such findings, determining an equitable division of
the property in accordance with R.C. 3105.171. Thus, the trial court was required to undergo
a fact-intensive inquiry before it could order the division of assets.
{¶ 5} At trial, Marjorie testified that she had submitted a complete list of all assets,
debts, liabilities, and income. Dwayne testified that he had not submitted a complete list.
As a result, he was not permitted to rely on his list during trial. [CITATION]
Marjorie and Dwayne both gave testimony about their relationship since she moved out of
their shared home on January 8, 2021. They affirmed they had lived separate and apart
continuously since the date she moved out. [CITATION]
{¶ 6} Neither Marjorie nor Dwayne hold college degrees but both are high school
graduates. [CITATION] Dwayne had begun a new position as a full-time manufacturing
operator at the time of trial, earning $20 an hour. [CITATION] Previously, he had
worked for a manufacturing company. Before trial, Dwayne submitted to the court that he
had an annual income of $57,000 in that position, but he testified at trial that he actually No. 23AP-325
earned closer to $30,000. (Tr. Vol. I at 64-65.) Dwayne testified he previously had a
pension that he withdrew in December 1996 when they purchased their house for $75,000.
(Tr. Vol. I at 68-69; Ex. 4.) He estimated he received somewhere between $32,000 and
$35,000, all of which was used for the down payment on the marital residence. (Tr. Vol. I
at 67-68.) Marjorie testified that she recently retired and took out a partial lump sum
option payment (“PLOP”) from her own pension, totaling $86,000 after taxes. She
currently receives a monthly pension of $3,700 that will continue for the rest of her life.
(Tr. Vol. I at 21, 48-49.)
{¶ 7} Marjorie used the PLOP to pay off her car loan and pay down a $108,000
home equity line of credit (“HELOC”), which she testified had a balance of $53,000 at the
time of trial. (Tr. Vol. I at 26.) The parties had taken out the HELOC to renovate the marital
residence and pay the remaining mortgage of their jointly owned commercial property.
(Id.) She estimated the remaining balance on the commercial property mortgage was
$23,000 before it was fully paid off with HELOC funds. (Tr. Vol. I at 6, 27-29.)[CITATION] Neither
party provided an estimated value for the commercial property.[CITATION] Both parties agreed the
marital residence was jointly owned and, at the time of trial, the property was not
encumbered by a mortgage or lien other than the HELOC. (Tr. Vol. I at 69.) Marjorie
testified that the residential property had been informally appraised at $141,000.[CITATION] (Tr. Vol.
I at 28-29.)
[CITATION] At multiple points during trial, Marjorie testified that the remaining mortgage on the commercial property
was paid off with funds from the HELOC. (See Tr. Vol. I at 6, 27-39.) We note that in the divorce decree,
the trial court addressed this issue in its findings of fact as follows: “Conflicting testimony was provided to
the Court regarding financial encumberment of the commercial property. Plaintiff testified that she
provided a lump sum payment in early 2023 to its mortgage but the amount remaining of the mortgage, if
any, remains unknown to this Court due to insufficient evidence presented.” (May 11, 2023 Divorce Decree
at 5-6.)
[CITATION] Dwayne asserts the trial court had access to a value for the commercial property because the 2022 property
tax bill was submitted into evidence at trial. The bill contains a total assessed value of $26,950, which it
describes as 35 percent of the property’s market value. Extrapolating from this, Dwayne asserts the market
value of the property is $77,000. (Appellant’s Brief at 14, citing Ex. 7.) While not expressly argued, we note
the same exhibit also contains a 2022 property tax bill for the residential property, which is assessed at
$26,430—a difference of only $520 between the taxable values. (Ex. 4.)
[SEGMENT 6]
[CITATION] In addition to Marjorie’s testimony, she introduced printouts from two real estate websites (Zillow and
Redfin) that included estimated prices for the residential property. Both printouts are dated August 23,
2022. The Zillow printout reflects an estimated value of $141,000, and the Redfin printout estimates the
home’s value at $206,143. (Tr. Vol. I at 28; Ex. 4.) No. 23AP-325
{¶ 8} The parties agreed to keep their respective vehicles. (Tr. Vol. I at 29-30.)
Both parties acknowledged owing income tax but were unaware of the specific amount at
the time of trial. (Tr. Vol. I at 32-33.) Similarly, Marjorie testified the parties owed property
tax on both the residential and commercial properties. Copies of the 2022 property tax bills
for both properties were introduced at trial and showed a delinquency of $2,060.72 for the
residential property and $4,045.52 for the commercial property. (Tr. Vol. I at 33-34; Ex.
7.)
{¶ 9} At trial, Dwayne testified about a $7,000 loan he took out in 2022 to renovate
the commercial property they had previously operated as a restaurant and bar. Marjorie
cosigned that loan. (Tr. Vol. I at 37-38.) The parties had previously held a liquor license
for the establishment, which Marjorie testified was in her name and had been either
cancelled or suspended for nonpayment approximately a year earlier. (Tr. Vol. I at 39-40.)
She estimated it would cost between $7,000 and $9,000 to reactivate the license. (Tr. Vol.
I at 42.)
{¶ 10} At the time of trial, Dwayne was residing in the marital home and Marjorie
was renting an apartment. (Tr. Vol. I at 67.) Regarding the personal property at the
residence, the parties stipulated the kitchen appliances would remain with the residence
and Dwayne would keep the remaining household items and furniture. They were unable
to estimate the value of these items when asked at trial. (Tr. Vol. I at 51-52.) The parties
did not have any joint accounts at the time of trial, but each separately had their own
checking and savings accounts. (Tr. Vol. I at 53-55.) Dwayne testified that during their
marriage, he borrowed money from his mother’s assets to assist with the parties’ shared
expenses like bills and mortgage payments. (Tr. Vol. I at 83-84.) He stated that, in total,
he borrowed $75,000 against his mother’s house and $7,000 against her life insurance
policy. (Tr. Vol. I at 84-85.)
{¶ 11} Following a two-day trial, the trial court entered a judgment entry and decree
of divorce on May 11, 2023. The entry first acknowledged that both parties testified and
submitted exhibits, all of which were admitted, and then recited the oral stipulations the
parties had reached at the beginning of trial. In relevant part, the trial court memorialized
that “[t]he parties separated on approximately January 8, 2021,” that since litigation
commenced, the parties’ only child had become a legal adult, and that “[t]he parties have No. 23AP-325
lived separate and apart without cohabitation and without interruption for a period of one
(1) year or more.” (May 11, 2023 Divorce Decree at 3-4.) Noting that several other matters
remained contested, the trial court proceeded to make findings of fact and order the
division of property in accordance with the findings. It is from this divorce decree that
Dwayne filed his appeal.
II. Assignments of Error
{¶ 12} Dwayne presents the following assignments of error for our review:
[I.] The trial court erred and abused its discretion in
determining a de facto termination date of marriage without
any justification or analysis contrary to R.C. 3105.171(A)(2)(b).
[II.] The trial court erred and abused [its] discretion by failing
to value the marital property and failing to order the property
sold and equally divided as the division as ordered was not
equitable.
[III.] The trial court erred and abused its discretion in failing to
value and equally and equitably divide plaintiff’s retirement
assets.
[IV.] The trial court erred and abused its discretion by failing
to make any required findings of fact and conclusions of law
regarding the equitability of the property division pursuant to
R.C. 3105.171(G) or make findings that the factors in R.C.
.171(F) were considered.
III. Discussion
A. Law and Standard of Review
{¶ 13} During a contested divorce, the trial court is charged with making an
equitable division of property between the spouses. R.C. 3105.171(B). Each spouse is
entitled to an equal division of the marital property. If the trial court finds an equal division
would be inequitable, it may divide the marital property to produce an equitable result after
considering all relevant statutory factors. R.C. 3105.171(C)(1). “Equality of distribution,
while an admirable goal in many situations, must yield to concerns for equity.” [CITATION]
{¶ 14} To craft this division, the trial court must first determine the duration of the
marriage because “[t]he duration of a marriage determines whether property is marital or No. 23AP-325
non-marital and establishes the appropriate dates for property valuation and division.”
[CITATION] “R.C. 3105.171(A)(2) authorizes a trial court, in the exercise of its sound discretion, to utilize a de facto date of termination of the marriage if such is equitable in a particular case.” [CITATION], citing [CITATION] We therefore review the selection of a de facto termination date for abuse of discretion. [CITATION] A trial court abuses its discretion when it acts in a manner that is
unreasonable, arbitrary, or unconscionable. [CITATION] “An abuse of discretion may also be found where a trial court ‘applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.’ ” [CITATION], quoting [CITATION]
{¶ 15} Once the marital period has been determined, the court must designate
property as either marital or separate. Subject to some exceptions, marital property
consists of all real and personal property, all interests in real or personal property, and all
appreciation on separate property acquired or occurring during the marriage. R.C.
3105.171(A)(3). If otherwise qualifying, marital property may include retirement benefits
that accrued during the marriage. R.C. 3105.171(A)(3)(a)(i). Separate property consists of
property acquired prior to the date of marriage, with non-marital funds after separation, or
through inheritance or gift during the marriage. R.C. 3105.171(A)(6); [CITATION] The
characterization of property as marital or separate is a factual inquiry for the trial court and
reviewed on appeal under a manifest weight of the evidence standard. [CITATION]
{¶ 16} Once property has been classified, the trial court must determine the value of
marital assets so it may determine an appropriate division. [CITATION] Most commonly, the valuation assigned to marital
property is the asset’s value at the time of divorce. [CITATION] However, a trial court
may select an alternative valuation date for a specific asset, provided it specifies the date
and explains its rationale. Id. If the provision of the divorce decree dividing an asset is
silent as to the valuation date, the marriage’s end date controls. Id. at ¶ 11. The reviewing No. 23AP-325
court examines the trial court’s valuations for abuse of discretion. [CITATION] at ¶ 25. The
trial court’s determination will not be disturbed on appeal if there is some competent,
credible evidence to support its valuation of an asset. [CITATION] at ¶ 10.
B. First Assignment of Error
{¶ 17} Dwayne’s first assignment of error relates to the trial court’s selection of a de
facto termination date for the marriage without first making the findings required by R.C.
3105.171(A)(2)(b). The duration of a marriage is defined in statute as “the period of time
from the date of the marriage through the date of the final hearing in an action for divorce.”
R.C. 3105.171(A)(2)(a). However, a trial court may select different dates to define the
duration of the marriage if the court finds using either or both dates would be inequitable.
R.C. 3105.171(A)(2)(b).
{¶ 18} This court has recognized several common factors used to determine the
appropriateness of a de facto date of termination. They include “whether the parties made
a clear and bilateral decision to separate, whether the marriage was irretrievably broken at
the time of separation, whether the separation was friendly, whether the parties engaged in
sexual relations after the date of separation, whether either party had begun to cohabitate
with another following separation, and whether the parties maintained separate financial
arrangements.” [CITATION] at ¶ 33. “As a general rule, trial courts use a de
facto termination of marriage date when the parties separate, make no attempt at
reconciliation, and continually maintain separate residences, separate business activities,
and separate bank accounts” some time before the date of the divorce decree. [CITATION] at ¶ 16.
{¶ 19} Here, the final court hearing occurred on April 13, 2023. However, the trial
court found “[t]he dates of the marriage are from September 24, 1994 to January 8, 2021.”
(Divorce Decree at 5.) During trial, the court asked both Marjorie and Dwayne to confirm
they separated on January 8, 2021, the day Marjorie moved out of the marital residence.
(Tr. Vol. I at 56-57.) The court also asked whether they engaged in sexual relations after
that date and whether they continued to present themselves as husband and wife. (Tr. Vol.
I at 57.) Marjorie testified they had one sexual encounter after January 8, 2021. (Tr. Vol. I
at 58.) She said they did not present themselves as husband and wife. (Tr. Vol. I. at 57.)
On the other hand, Dwayne responded, “No. I mean, yeah, I said she’s my wife.” (Tr. Vol. I No. 23AP-325
[SEGMENT 7]
at 57-58.) Marjorie also testified she cosigned for a loan Dwayne took out in 2022, though
a specific date was not provided. (Tr. Vol. I at 36-37.)
{¶ 20} The trial court did not provide its reasoning for deviating from the
presumptive termination date contained in R.C. 3105.171(A)(2)(a) or cite which equitable
factors were relied on to justify using the alternate date. While the transcript reflects some
indication of what testimony the trial court found persuasive, this reasoning is not set forth
in the decision and requires us to guess at the trial court’s logic. Moreover, the transcript
also contains testimony that conflicts with the selection of the de facto termination date,
including the cosigned loan and use of joint accounts, all of which occurred after the de
facto termination date. At trial, Dwayne introduced bank statements for a joint checking
account that listed both parties’ names as late as October 25, 2021. (Ex. B.) And so, without
any explanation, we must guess why the trial court did not find those facts indicative of an
intermingled life even after Marjorie moved out.
{¶ 21} Because the final hearing date is the presumptive termination date for the
marriage under R.C. 3105.171(A)(2), the use of an alternate date must be predicated on a
finding that using the presumptive date would be inequitable. R.C. 3105.171(A)(2)(b); [CITATION]. While the selection of an
alternate date is well within the trial court’s discretion, the decision may not be arbitrary or
without reason. See [CITATION] (“[A]
trial court may use a de facto termination of marriage date when the evidence clearly and
bilaterally shows that it is appropriate based upon the totality of the circumstances.”).
However, by failing to make an explicit finding that the date of the final hearing would be
inequitable and failing to provide any reasoning for its decision, the trial court’s use of a de
facto termination date was in error. See, e.g., [CITATION] (finding trial court did not abuse its discretion where court’s
journal entry reflected consideration of the appropriate factors). For the foregoing reasons,
we sustain Dwayne’s first assignment of error.
C. Second Assignment of Error
{¶ 22} In his second assignment of error, Dwayne asserts the trial court failed to
value the marital property, failed to order the property sold, and ultimately failed to order
an equitable division of the marital property. No. 23AP-325
{¶ 23} In contested divorce proceedings, after it has determined the duration of the
marriage, the trial court must classify property as either marital or separate. The court
must then make a division of the property based on the factors listed at R.C. 3105.171(F).
{¶ 24} When crafting the award, the trial court “must generally assign and consider
the values of marital assets in order to equitably divide those assets.” [CITATION]. “Although a trial court possesses
broad discretion to determine the value of marital property, it may not omit valuation
altogether.” [CITATION]. Nor may it assign an unknown value to an asset by reason of
insufficient evidence. [CITATION]. In such circumstances, the proper response is to instruct
the parties to provide the necessary evidence, not to forgo the valuation. [CITATION]. While we do
not prescribe any one specific method of appraisal, we do require the trial court to have a
rational evidentiary basis for making its findings. [CITATION]. Accordingly, our review is focused on evaluating how the court
arrived at a certain value. See id. at ¶ 38, citing [CITATION].
{¶ 25} When dividing marital property, the trial court must consider all relevant
factors, including those specifically enumerated in R.C. 3105.171(F). These factors include,
in relevant part, the liquidity of the property, the economic desirability of retaining an intact
asset, and the consideration of the respective tax consequences of the property division.
R.C. 3105.171(F). “An exhaustive itemization by the trial court of every factor set forth in
R.C. 3105.171(F) is unnecessary; however, the court’s decision must clearly indicate that the
factors were considered before the property division was made.” [CITATION]. The trial court must include in its final decision
written findings of fact to support its determination that the marital property has been
equitably divided. R.C. 3105.171(G).
{¶ 26} Having already addressed the duration of the marriage in Dwayne’s first
assignment of error, we next turn to whether the trial court appropriately classified
property as separate or marital as mandated by R.C. 3105.171(B).
{¶ 27} There are several instances in the divorce decree where assets or liabilities
are acknowledged but left undetermined, most notably with regard to retirement benefits.
As a general rule, interests in retirement benefits that accrue during the marriage are No. 23AP-325
considered marital property. See R.C. 3105.171(A)(3)(a)(i). Here, the trial court
acknowledged Marjorie retired after the selected de facto termination date, on December
30, 2022, received a PLOP in the net amount of $86,000, and will receive a monthly benefit
of $3,700 until death. (Divorce Decree at 7.) After making this finding, the decree is silent
as to whether the trial court found this is marital or separate property. Similarly, the trial
court noted that Dwayne “at one time had a pension with OPERS but did not testify to any
other interest” in any other retirement benefit. (Id.) At trial, Dwayne provided testimony
that he withdrew his OPERS pension in 1996 to make a down payment on their house,
which Marjorie confirmed. (Tr. Vol. I at 67-68.) While the trial court determined the house
is marital property, the decree is silent as to whether any portion of Dwayne’s pension
accrued before the marriage, and, if so, whether some of the pension funds used for the
down payment on the residential property are separate property. (Divorce Decree at 5.)
{¶ 28} These considerations are not inconsequential. “A person’s down payment on
a marital residence can retain its identity as separate property, as long as it is traceable.”
[CITATION] Moreover, the “commingling of separate property with other property of any type does not destroy the
identity of the separate property as separate property, except when the separate property is
not traceable.” R.C. 3105.171(A)(6)(b). If Dwayne’s pension funds for the down payment
accrued before the marriage and are traceable, Dwayne could have a separate property
interest in the marital residence that was not recognized in the divorce decree.
{¶ 29} We also note the trial court’s failure to qualify the parties’ personal debts as
either marital or separate. The trial court determined each party would bear responsibility
for any debts incurred in their individual names other than the cosigned loan from 2022.
(Divorce Decree at 11.) However, the trial court also made a finding that “[Marjorie] ha[d]
no known credit card debt at the time of the contested trial. [Marjorie] testified that she
paid off close to $50,000 in credit card debt when she received her PLOP after retiring in
late 2022.” (Divorce Decree at 7.) When making this finding, the trial court did not specify
whether the $50,000 debt or the PLOP funds used to reduce it were separate or marital
property. To illustrate this point, if, on remand, the trial court finds the credit card debt
was separate property, but Marjorie’s PLOP funds were marital, that would shift the
equities of the property division by a significant margin. No. 23AP-325
{¶ 30} With these issues in mind, we turn to the final responsibility of the trial court:
making an equitable division of marital property. We have previously held that a trial court
abuses its discretion by failing to consider the R.C. 3105.171(F) factors in making a division
of marital property. [CITATION] at ¶ 18. The divorce decree in this case is
replete with instances where the trial court acknowledged it had insufficient evidence to
make a valuation. For example, the trial court stated, “[I]t cannot determine the fair market
value of the marital residence.” (Divorce Decree at 5.) Similarly, the trial court found that,
due to a lack of evidence, “it cannot determine the fair market value of the commercial
property.” (Divorce Decree at 6.) In another example, the trial court addressed debts
incurred by Dwayne during the marriage by stating it was “unable to determine whether
the debt(s) are separate or marital debt.” (Divorce Decree at 8.)
{¶ 31} Despite these acknowledgments, the trial court proceeded to order a division
of property. Notably, the trial court awarded the marital residence to Marjorie and the
commercial property to Dwayne, with both parties bearing full responsibility for any
accrued tax arrearages on the respective properties. The trial court provided no explanation
for this division, despite recognizing both parties wished to retain the marital residence,
Dwayne had exclusively occupied the residence since January 8, 2021, and fair market
values for both properties could not be determined from the evidence presented at trial. In
their pre-trial statements, both Dwayne and Marjorie stated neither property had been
formally appraised and they could not estimate their value. (See Sept. 28, 2022 Pl.’s Pre-
trial Statement at 2; Oct. 2, 2022 Def.’s Pre-trial Statement at 2.) Apart from its recognition
that Marjorie informally valued the residential property at $141,000, the trial court
expressly stated it did not have any evidence to value either property. (See Divorce Decree
at 5-6.) Despite this, the court still issued a property award. This leaves the parties with an
unknown—but potentially consequential—disparity in the property award made by the trial
court, with no findings to justify the possible difference.
{¶ 32} While we recognize that a trial court has broad discretion in making divisions
of property, the parties’ failure to produce competent, credible evidence at trial does not
relieve the court of its statutory duties. We reiterate that an equitable division of property
begins with a valuation of the parties’ assets and liabilities. We also acknowledge that
“courts, including this court, have found some limitations to the general declaration that a No. 23AP-325
[SEGMENT 8]
trial court must value all marital property.” [CITATION], ¶ 19. But those instances are rare and do not involve the valuation of
“major” assets like the commercial and residential properties at issue in this case. Id.
Regardless of what evidence the parties provide, a trial court must assign an appropriate
value to the major marital assets as part of its duties under R.C. 3105.171(G). [CITATION], ¶ 5.
{¶ 33} The properties the trial court stated it could not assign a value to but divided
nonetheless—the marital residence and the commercial property—were undisputedly
major assets of the marital estate. Nothing in the record demonstrates the properties were
of equal value, and the court did not account for other contributions to the marital estate
that could justify an unequal, but equitable, division. The court similarly failed to value the
marital and individual liabilities and instead ordered each party to be responsible for their
respective debts without explanation. This extends to the treatment of Marjorie’s $50,000
credit card debt, which she testified was paid off with her pension funds. Without any
analysis, the trial court’s decisions appear ill-supported by the evidence and the law.
{¶ 34} While we could piece together possible reasons for the trial court’s decisions
from the record, it is axiomatic that a court speaks through its journal entries. [CITATION], ¶ 4. And where the trial court
fails to “make written findings of fact that support the determination that the marital
property has been equitably divided,” it has not performed its statutory duty under R.C.
3105.171(G).
{¶ 35} Furthermore, while not acknowledged in the divorce decree, it was
undisputed at trial that Dwayne drew from his own pension at significant penalty in order
to provide the down payment on the marital residence in 1996. Likewise, while this was
recognized by the trial court, Marjorie used a portion of her pension payout to reduce the
HELOC loan, which the trial court recognized as marital debt. The trial court also broadly
held each party responsible for any individual debt, despite the express recognition that it
could not determine whether Dwayne’s debts were separate or marital. In contrast, the trial
court specified that Marjorie had no known individual debt at the time of trial, while
acknowledging she used a payment from her pension to satisfy personal credit card debt
incurred during the marriage. No. 23AP-325
{¶ 36} The trial court’s errors arose when it continued to divide the marital estate
after recognizing it was ill-equipped to do so. Because the court failed to classify all
disputed property as either separate or marital, failed to make an equitable distribution of
liabilities and assets based on appropriate valuations, and failed to demonstrate it
considered the applicable statutory factors through written findings of fact, the trial court
abused its discretion. Accordingly, we sustain Dwayne’s second assignment of error.
D. Third Assignment of Error
{¶ 37} In his third assignment of error, Dwayne asserts the trial court failed to value
and equally and equitably divide Marjorie’s retirement assets. While briefly discussed in
Dwayne’s second assignment of error, it is appropriate to address it here independently.
{¶ 38} In the divorce decree, the trial court found as follows with respect to Dwayne
and Marjorie’s retirement benefits:
Plaintiff retired on December 30, 2022 and received a partial lump
sum option payment (“PLOP”) from her Ohio Public Employees
Retirement System (OPERS) Pension. She received her PLOP in the
amount of $100,000 and, after taxes and associated fees, she received
a net amount of $86,000. Defendant signed off on Plaintiff’s
retirement prior to contested trial when he executed a “Spousal
Consent” form on October 3, 2022.
In addition to the PLOP, Plaintiff receives a net amount of $3,700.00
per month from her pension and will continue to receive until her
death.
Defendant testified that he at one time had a pension with OPERS but
did not testify to any other interest in any pension, profit sharing, IRA,
(K), deferred compensation, or other retirement plan(s).
[CITATION] (Divorce Decree at 7.) In addition to the testimony about each party’s respective retirement
interests, the record contains a copy of Marjorie’s Account Value letter from OPERS, dated
September 1, 2022, reflecting a retirement account value of $300,896.93 as of the letter
date and 33.35 years of total service credit as of July 30, 2022. (Ex. 5.) The court ordered
that each party “shall retain any and all interest in any pension, profit sharing, IRA, 401(k),
deferred compensation, or other retirement plan” that he or she currently holds. [CITATION] (Divorce
Decree at 9-10.) No. 23AP-325
{¶ 39} Pension and retirement benefits acquired by a spouse during the marriage
are generally considered marital assets subject to division. [CITATION]; see also R.C. 3105.171(A)(3)(a)(i). The Supreme Court of Ohio
has previously held that “[a] vested pension plan accumulated during marriage is a marital
asset and must be considered * * * in dividing marital assets and liabilities to ensure that
the result reached is equitable.” [CITATION]. “When distributing these marital assets, a trial court must apply its discretion based upon
the circumstances of the case, the status of the parties, the nature, terms and conditions of
the pension or retirement plan, and the reasonableness of the result.” [CITATION], citing [CITATION].
{¶ 40} A trial court must compute the non-employee spouse’s proportionate share
of the retirement benefit by calculating the ratio of the time employed while married to the
total amount of time employed. [CITATION]. This formula is often referred to as the
“coverture fraction.” [CITATION]. Once the
proportionate share is determined, the trial court may then proceed to dispose of the asset.
“The trial court should structure a division which will best preserve the fund and procure
the most benefit to each party.” [CITATION]. The particulars will depend on the
circumstances of each individual case—the trial court must attempt to preserve the asset’s
optimal value, disentangle the parties’ financial affairs, and structure an equitable division
of property from the entire marital estate, all without violating the terms and conditions of
the pension plan. [CITATION]. Other considerations include whether the
retirement benefit has vested or matured and whether there are other assets available to
offset the non-employee spouse’s proportionate share. [CITATION].
{¶ 41} Here, it appears from the divorce decree that the trial court treated Marjorie’s
pension as separate property. However, it is undisputed that some portion of Marjorie’s
retirement benefit accrued during the marriage and thus constitutes marital property. The
trial court erred when it failed to classify it as such and determine Dwayne’s proportionate
share before ordering its disposition. Accordingly, we sustain Dwayne’s third assignment
of error. No. 23AP-325
E. Fourth Assignment of Error
{¶ 42} In his final assignment of error, Dwayne asserts the trial court failed to make
any of the required findings of fact and conclusions of law as required by R.C. 3105.171(G)
or demonstrate it considered the factors in R.C. 3105.171(F) when dividing the marital
property. See [CITATION] at ¶ 18. As expressed in the foregoing analysis, we agree. “In
allocating property between divorcing parties, a trial court must indicate the basis for its
award in sufficient detail to enable an appellate court to determine whether the award is
fair, equitable, and in accordance with the law.” [CITATION]. If a trial court has insufficient evidence to make the
required valuations, the correct course of action in most circumstances is to order the
parties to produce additional evidence, not proceed to divide the parties’ major assets
without sufficient understanding of their value. See, e.g., [CITATION] at
¶ 24 (“[A] party’s failure to put on any evidence of value does not permit the court to assign
an unknown as the value of a marital asset.”).
{¶ 43} In addition to the trial court’s repeated acknowledgments that it had
insufficient evidence to value certain assets, the court also failed to justify its division of
property with written findings. See [CITATION] at ¶ 4; [CITATION] , 10th Dist. No.
06AP-516, 2007-Ohio-2239, ¶ 79 (“The objective of the findings of fact authorized by R.C.
3105.171(G) is to facilitate meaningful appellate review.”). Absent this necessary analysis,
we cannot conclude the trial court considered the statutory factors enumerated in R.C.
3105.171(F). More generally, it prevents us from determining whether the trial court made
an equitable division of the marital property. As such, we sustain Dwayne’s fourth
assignment.
IV. Disposition
{¶ 44} Having sustained Dwayne’s four assignments of error, we reverse the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
and remand the matter with instructions to the trial court to make the appropriate findings
of fact and conclusions of law, consistent with this decision.
[SEGMENT 9]
Judgment reversed;
cause remanded with instructions. Based on the provided part of the court ruling, there are no court ruling citations identified that require replacement. Therefore, the text remains unchanged:
====== Anonymized Part of a Court Ruling ======
No. 23AP-325
MENTEL, P.J. and BEATTY BLUNT, J., concur.
[CITATION]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ryan C. Sykes, :
Plaintiff-Appellee, :
No. 23AP-295
v. : (C.P.C. No. 21DR-3233)
Sarah Sykes, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 21, 2024
On brief: Grossman Law Offices, and John H. Cousins, IV,
for appellee. Argued: John H. Cousins, IV.
On brief: Woodford Sathappan McGee, Co., LPA, and
Hari K. Sathappan, for appellant. Argued: Hari K.
Sathappan.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
LELAND, J.
{¶ 1} This is an appeal by defendant-appellant, Sarah Sykes, from a judgment entry
and final decree of divorce entered by the Franklin County Court of Common Pleas,
Division of Domestic Relations.
I. Facts and Procedural History
{¶ 2} On September 15, 2021, plaintiff-appellee, Ryan C. Sykes, filed a complaint
for divorce against appellant. The complaint alleged that the parties were married on
April 8, 2006, and one minor child was born as issue from the marriage.
{¶ 3} On February 18, 2022, a magistrate of the trial court issued temporary orders
noting the parties had reached a partial agreement regarding custody and parenting time,
and that the remaining issues involved financial matters. The parties subsequently issued
pre-trial statements. No. 23AP-295
{¶ 4} On February 14, 2023, the trial court conducted a trial on the matter. On
April 20, 2023, the court filed a judgment entry in which it granted the parties a divorce
and valued and divided the marital assets, including the marital residence. As relevant to
the issues presented on appeal, the trial court noted in its findings of fact that “[t]he parties
are joint owners of one (1) parcel of real estate located [on] Alton Darby Creek Road,
Hilliard,” which was “purchased during the marriage on November 19, 2014, for
$273,452.00.” (Jgmt. Entry/Decree of Divorce at 9.) For the year 2022, “the Franklin
County Auditor valued the marital residence at $285,900.00.” (Jgmt. Entry at 9.) On
January 20, 2023, an appraisal of the property was made by Brian Long, a witness on behalf
of appellant, who “was stipulated as an expert witness by both parties at contested trial.”
(Jgmt. Entry at 9.) Long appraised the marital residence “for $535,000.00.” (Jgmt. Entry
at 9.)
{¶ 5} The trial court determined “the marital property shall be valued at $440,000
to reflect the current real estate market.” (Jgmt. Entry at 9.) The court awarded the marital
residence to appellee, ordering him to “refinance the current loan on said real property or
obtain an additional loan to satisfy the equity provisions.” (Jgmt. Entry at 27.) The court
further held that “[t]he equity in the real property subject to equitable division is $182,428,”
and the parties “shall equally (50-50) divide and receive the equity in the residence.” (Jgmt.
Entry at 28.)
II. Assignments of Error
{¶ 6} Appellant appeals and assigns the following two assignments of error for our
review:
[I.] The trial court erred to the material prejudice of Defendant
in finding that [the residence] should be valued at $440,000 to
reflect the current real estate market.
[II.] The trial court erred to the material prejudice of Defendant
in ordering that the marital equity in [the residence] subject to
division is $182,428.00.
III. Analysis
{¶ 7} Appellant’s assignments of error are interrelated and will be considered
together. Under these assignments of error, appellant challenges the trial court’s valuation No. 23AP-295
of the marital residence, asserting the court assigned a “middle of the road” value to the real
estate without a proper evidential predicate. (Appellant’s Brief at 3.) Based on her
assertion the trial court erred in valuing the property, appellant further argues the court’s
calculation of the marital equity in the residence was in error.
{¶ 8} In a divorce proceeding, a trial court “is required to determine what
constitutes marital property and what constitutes separate property.” [VACHERESSE v. PAULCHEL, 10TH DIST. NO. 22AP-583, 2023-OHIO-3226, ¶ 13, CITING R.C. 3105.171(B)]. In
“making such determinations, the trial court must divide the marital and separate property
equitably, between the spouses, in accordance with R.C. 3105.171.” Id., citing R.C.
3105.171(B). In deciding on an appropriate division, “the trial court must value the marital
property.” Id. at ¶ 14. In general, “[a] domestic relations court enjoys broad discretion in
valuing and fashioning a division of marital property.” Id. at ¶ 15. In allocating marital
property, a trial court “must indicate the basis for its award in sufficient detail to enable an
appellate court to determine whether the award is fair, equitable, and in accordance with
the law.” [CITATION], citing [CITATION]. A
reviewing court “will uphold a trial court’s valuation and division of property absent an
abuse of discretion.” [CITATION], citing [CITATION].
{¶ 9} In a similar vein, “a trial court generally has broad discretion to develop some
measure of value.” [CITATION] at ¶ 21. Even though “ ‘ “a trial court enjoys broad discretion
in determining the value of a marital asset, such discretion is not without limit.” ’ ” Id. at
¶ 22, quoting [CITATION], quoting [CITATION]. In this respect,
“ ‘[a] trial court’s assignment of an asset’s value must be based upon competent, credible
evidence,’ meaning ‘evidence that is both competent, credible evidence of value and a
rational basis upon which to establish the value.’ ” Id., quoting [CITATION]. Thus, “ ‘[a] trial court must have a rational
evidentiary basis for assigning value to marital property.’ ” Id., quoting [CITATION].
Where expert testimony is admitted “as to property values, the court may believe all, part, No. 23AP-295
or none of the expert’s testimony.” [CITATION] at ¶ 18, citing [CITATION] at ¶ 12, citing
[CITATION]. Finally, “ ‘ “[a]n appellate court’s duty is not to require the adoption of any particular method of valuation, but to determine whether, based upon all the relevant facts and circumstances, the court abused its discretion in arriving at a value.” ’ ” [CITATION] at ¶ 23, quoting [CITATION] at ¶ 26,
quoting [CITATION] at ¶ 38.
{¶ 10} In the present case, the parties presented the following testimony and
evidence at trial with respect to the value of the marital residence. Brian Long, a “certified
residential real estate appraiser,” testified on behalf of appellant. (Tr. Vol. 1 at 19.) Long
was “contacted” by appellant “to provide a current appraisal on the subject property,”
located on Alton Darby Creek Road. (Tr. Vol. 1 at 20.) Long conducted an appraisal on
January 20, 2023, and prepared a residential appraisal report; that report was admitted at
trial as defendant’s exhibit D.
{¶ 11} Long testified he appraised the value of the property at $535,000 based on a
“sales comparison approach.” (Tr. Vol. 1 at 21.) In performing that appraisal, Long used
four comparable residential sales and his report “spelled out how each comp was
weigh[ed].” (Tr. Vol. 1 at 21.) Outlining the steps involved in his appraisal, Long stated he
first “inspect[ed] the subject property” to “determine the square footage, room count,
general conditions.” (Tr. Vol. 1 at 22.) He then “pull[ed] the comparable sales in the area.”
(Tr. Vol. 1 at 22.) According to Long, “[a]ll of the comparable sales are located within the
marketplace and the Hilliard School District.” (Tr. Vol. 1 at 22.) Long “put those
comparable sales onto a grid and adjust[ed] to either negative or positive for differences
between that sale and the subject property.” (Tr. Vol. 1 at 22.) After obtaining a “value
range,” he then “weigh[ed] the comps and [came] up with the value of $535,000.” (Tr. Vol.
1 at 22.) Long described the subject residence as a “straightforward property,” stating “[i]t
wasn’t unique in any way, not excessive acreage or square footage.” (Tr. Vol. 1 at 23.) On
cross-examination, he stated three of the comparable sale properties were located between
1.84 and 3.54 miles of the marital residence, and the fourth property was located “just under
a mile” from the subject property. (Tr. Vol. 1 at 27.) No. 23AP-295
[SEGMENT 10]
{¶ 12} Appellee testified on his own behalf, stating he had resided at the marital
residence since November 2014. At trial, appellee identified plaintiff’s exhibit No. 2 as a
copy of the “Franklin County Auditor’s website for our home.” (Tr. Vol. 1 at 71.) The
auditor’s 2022 appraised value of the residence was $285,900. Appellee testified he was
requesting the court to award him the marital residence and to value the property based on
the Franklin County Auditor’s 2022 tax valuation. Appellee related that, during the
marriage in 2019, appellant had challenged the auditor’s valuation and assessment of the
marital residence.
{¶ 13} When questioned on direct examination, appellee testified he would not sell
the residence for $200,000, nor would he sell it for $250,000, stating that $285,900 would
be close to what he would consider as a selling price for the property. Appellee did not wish
to sell the residence at this time because the house was important to his son who “does not
want to move.” (Tr. Vol. 1 at 73.)
{¶ 14} On cross-examination, appellee acknowledged he and appellant purchased
the marital residence for the amount of $273,452 on November 19, 2014. Appellee stated
he would be willing to sell it for $285,900 “[i]f I had to,” and he believed that amount
constituted a fair current price. (Tr. Vol. 1 at 104.)
{¶ 15} Appellant testified on her own behalf. In May 2022, appellant moved to
Florida, where she is currently employed as a “senior property manager.” (Tr. Vol. 2 at
229.) Appellant testified she wanted the court to value the marital residence at the amount
determined by her appraiser (Long), further stating she would not have accepted an offer
to sell the house for $285,000. On cross-examination, appellant acknowledged she
challenged the auditor’s tax appraisal of the marital residence in September 2020.
According to appellant, she was not “arguing for any specific value, just the lowest as
possible * * * for tax purposes.” (Tr. Vol. 2 at 255.)
{¶ 16} As noted, appellant asserts on appeal the trial court erred in picking a “middle
of the road” estimate between the two values presented by the parties. In support, appellant
relies in part on [CITATION]. Under the facts of that case, the parties were granted a divorce and the primary issue on appeal
involved the trial court’s valuation of the appellant’s business. At trial, the appellee No. 23AP-295
presented the testimony of an expert who valued the business at $280,586, while the
appellant’s expert valued it at $51,257. The trial court “concluded that the business was
worth $125,000, and awarded it to [the] appellant.” [CITATION]
{¶ 17} On appeal, the appellant asserted the evidence did not support a valuation of
$125,000; the reviewing court agreed, noting that “in obtaining a valuation, the judge or
trier of fact must have before it sufficient evidence to justify or support the dollar figure it
obtains.” [CITATION] Specifically, the court held: “[I]f the trial court summarily arrives at a
valuation of * * * property, even though between the two extremes of the opposing parties’
witnesses, without a proper evidential predicate, such would be error. * * * To achieve a
middle of the road estimation without some basis for such an adjustment from one extreme
or the other would constitute error as not being supported by the evidence.” [CITATION]
{¶ 18} In addressing the record evidence before it, the court in [CITATION] concluded
that, where “[the] appellant’s expert valued the business at $51,257,” and the appellee’s
expert “indicated it was worth $280,586,” the “remaining testimony [was] insufficient to
support a finding of $125,000” as “[n]either party presented evidence which would either
increase the value by approximately $75,000 or decrease the value by $155,000.” [CITATION]
Finally, the court observed, the trial court “failed to explain how it obtained the value it
did,” and therefore “the court’s conclusion is not supported by any evidence which would
permit a valuation of $125,000.” [CITATION]
{¶ 19} Appellant argues that numerous Ohio appellate courts have rendered
holdings similar to [CITATION], including the following cases she cites in support: [CITATION] (finding trial court “was not free to choose
a value between the two extremes” where record “only contained evidentiary support for
the zero value and the $ 150,000 value” provided by the two experts); [CITATION] (noting “trial court errs and abuses its discretion if it ‘summarily
arrives at a valuation of an asset or property, even though between two extremes of the
opposing parties’ witnesses, without a proper evidential predicate’ ”); [CITATION] (where one party valued business at $1 million and
another valued it at only $100, basis of trial court’s valuation at $20,000 “not sufficiently No. 23AP-295
detailed to enable this court to determine that it is not unreasonable, arbitrary, or
unconscionable”); [CITATION] (where plaintiff testified that value of home furnishings was $30,000, trial court’s valuation of furnishings at $2,500, where it “did not explain how or why it arrived at the $2,500 figure,” not supported by credible evidence); [CITATION] (where appellee presented uncontradicted testimony as to value of property, deviation from values by magistrate and trial court without explanation leads to conclusion “the assigned value is arbitrary”); [CITATION] (where only appraisal at hearing valued marital property at $151,000, trial court’s valuation of property at $115,000, in which it “failed to explain how it assigned the value,” not supported by any evidence to permit such valuation).
{¶ 20} In response, appellee argues the trial court did not merely pick a midpoint
between the auditor’s value of $285,900 and Long’s appraisal of $535,000. Appellee
maintains the trial court was free to adjust the auditor’s value or to average it based on other
evidence presented at trial, including the testimony of the parties and the comparable sales
data set forth in Long’s appraisal report.
{¶ 21} Appellee cites several cases in support, including the decision of the Second
District Court of Appeals in [CITATION]. Under the facts of that case, the appellee’s appraiser
testified the current fair market value of the marital property was $125,000, while the
appellant’s appraiser opined the fair market value of the property was $165,000. The trial
court awarded the property to the appellee, valuing it at $145,000. On appeal, the appellant
argued the trial court abused its discretion in valuing the marital property at $145,000,
asserting the court “was required to use one of the valuations that the parties’ separate
appraisers assigned to the property and could not simply average the two opposing values.”
[CITATION] at ¶ 14.
{¶ 22} The reviewing court found no abuse of discretion, holding “[t]he record
contains evidence that supports the court’s decision to reject the parties’ appraisers’
valuations and to instead choose a valuation in the middle.” [CITATION] at ¶ 21. More specifically,
the court noted the appellee “testified that the property needs several repairs,” including a
new furnace and septic system. [CITATION]. The reviewing court concluded the trial court could No. 23AP-295
have determined that the appellant’s appraisal (of $165,000), which “did not account for
any repairs to the property,” constituted “an appropriate starting point but then found that
due to the nature of the repairs, the fair market value of the property should be reduced by
$20,000.” Id. In this respect, “[t]he court was not required to accept either appraisal but
instead, was free to believe some, none, or all of the witnesses’ testimony.” Id.
{¶ 23} Appellee also cites [CITATION] in which the appellee testified she had reviewed information from the county
auditor’s website indicating that homes of comparable value to the parties’ marital
residence “sold for less than $90,000,” while the appellant presented an appraisal report
indicating the residence “was worth approximately $120,000.” The trial court accepted a
magistrate’s finding that the residence was worth $110,000 and, on appeal, the appellant
asserted the trial court erred and “should have used the valuation his third-party appraiser
assigned to the property.” Id. at ¶ 63. In [CITATION], the reviewing court affirmed the trial court’s
decision, finding competent, credible evidence to support the magistrate’s determination
that the property had a fair market value of $110,000. More specifically, while the appellee
“did not submit evidence regarding the value of the home, she indicated [the appellant’s]
high estimate was based upon homes far less comparable to the [marital] residence.” Id. at
¶ 67.
{¶ 24} As noted, the trial court in the present case found “the marital property shall
be valued at $440,000 to reflect the current real estate market.” (Jgmt. Entry at 9.) In its
decision, the court made findings that the county auditor had assessed the value of the
marital residence at $285,900 for tax year 2022, and that “the marital residence privately
appraised for $535,000.00” based on “[t]he appraisal * * * conducted by Brian Long,” who
“was stipulated as an expert witness by both parties.” (Jgmt. Entry at 9.) However, aside
from the above findings of the trial court, citing the conflicting valuations proffered by the
parties, the basis for the trial court’s valuation of the marital residence at $440,000 as
reflecting “the current real estate market” is unclear, as the court offered no further findings
or explanation. (Jgmt. Entry at 9.)
{¶ 25} On this point, we do not construe appellee’s brief as asserting the trial court
explained its reasoning in assigning a value of $440,000. Appellee suggests, however, “one No. 23AP-295
[SEGMENT 11]
example” as to how the court could have reached a close approximation to that number;
specifically, appellee argues, “the trial court could have averaged the auditor’s value
($285,900) with the nearest comparable sale in Long’s report ($575,000) and the most
recent comparable in Long’s report ($455,000) to arrive at a value of $438,633.”
(Appellee’s Brief at 10.) Appellee further argues the evidence before the trial court included
a sworn affidavit by appellant in which she opined the fair market value of the property in
2021 was $375,000.
{¶ 26} While the trial court could have reasonably relied on the comparables (or the
auditor’s value or the affidavit evidence) cited above in reaching its valuation, we are unable
to discern, in the absence of an explanation, how the court arrived at its valuation amount.
Although the trial court does not specifically reference the comparable sales data in its
decision, we note that the appraisal report (defendant’s Ex. D) prepared by appellee’s expert
(utilizing a sales comparison approach) identified four comparable property sales of
$650,000 (“Comparable 1”), $575,000 (“Comparable 2”), $455,000 (“Comparable 3”), and
$575,000 (“Comparable 4”), respectively and, therefore, the value assigned by the trial
court to the marital property was less than the sales price of each of the comparable
properties (and $15,000 less than the lowest comparable sale). Further, while the valuation
assigned by the trial court ($440,000) was within the range of the two valuations proffered
by the respective parties, i.e., $285,900 and $535,000, a trial court must still have “a
rational evidentiary basis for assigning value to marital property.” [CITATION] at ¶ 29. See
also [CITATION], 91 Ohio App.3d 570, 578 (8th Dist.1993) (“Even though the trier of
fact is granted much leeway in obtaining a value, it must do so based upon the evidence
before it,” and a court may not “summarily” arrive at a valuation of property, “even though
between two extremes of the opposing parties’ witnesses, without a proper evidential
predicate.”).
{¶ 27} Again, however, because the rationale for the $440,000 valuation is not
explained by the trial court, nor apparent from the record, we are unable to conduct a
meaningful review as to whether there was a “rational evidentiary basis” (or “evidentiary
predicate”) for that value. Correspondingly, we are unable to review the “ultimate issue” as
to whether the division of property was fair and equitable. [CITATION]
====== End of Part of a Court Ruling ====== No. 23AP-295
No. 14362 (Jan. 20, 1995) (trial court’s failure to explain how it arrived at valuation
“prevents our determination of the ultimate issue,” i.e., whether the award “produced an
equitable division of the marital estate”).
{¶ 28} We conclude, therefore, the matter should be remanded for the trial court to
articulate the basis for its valuation. See, e.g., [CITATION] (“when a trial court fails to indicate the basis of its valuation,” appellate
court “is precluded from being able to determine whether the property division was
equitable,” thereby requiring remand for trial court to “explain the impetus of its
valuations”); [CITATION] (remand required where “basis of the trial court’s determination as to
the value [of husband’s business] is not sufficiently detailed to enable this court to
determine that it is not unreasonable, arbitrary, or unconscionable”). In doing so, we make
clear we do not render a determination that the trial court, in fact, abused its discretion by
assigning an arbitrary valuation; rather, this matter is remanded for the limited purpose of
allowing the trial court to “indicate the basis of [that] valuation.” [CITATION].
{¶ 29} Accordingly, we sustain appellant’s first assignment of error to the extent
provided above. In light of our disposition of the first assignment of error, the issue raised
under appellant’s second assignment of error, in which she challenges the trial court’s
calculation of the marital equity in the property, i.e., a calculation dependent on the
ultimate valuation of the marital residence (and the mortgage balance), is rendered moot.
IV. Conclusion
{¶ 30} Based on the foregoing, appellant’s first assignment of error is sustained to
the extent provided, the second assignment of error is rendered moot, the judgment of the
Franklin County Court of Common Pleas is reversed, and this matter is remanded to that
court for further proceedings in accordance with law and consistent with this decision.
Judgment reversed; cause remanded.
DORRIAN and LUPER SCHUSTER, JJ., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Rachel M. Smith, :
Plaintiff-Appellant, : No. 22AP-720
(C.P.C. No. 20DR-1295)
v. :
(ACCELERATED CALENDAR)
Steven J. Smith, :
Defendant-Appellee. :
D E C I S I O N
Rendered on January 9, 2024
On brief: Grossman Law Offices, and John H. Cousins, IV,
for appellant. Argued: John H. Cousins, IV.
On brief: Eric R. Nordman, for appellee. Argued: Eric R.
Nordman.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
BOGGS, J.
{¶ 1} Plaintiff-appellant, Rachel M. Smith, appeals from the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, which granted
the Civ.R. 60(B) motion filed by defendant-appellee, Steven J. Smith, and vacated the
decree of divorce. For the following reasons, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Rachel and Steven were married in 2003 and have three children together.
After nearly 17 years of marriage, Rachel filed a complaint for divorce on April 16, 2020.
Rachel listed in her affidavit of property, in pertinent part, an Eastcleft Drive property titled
to both parties and four Edward Jones accounts (#...6503-1-6, #...9120-1-2, #...65-1-3, and No. 22AP-720
#...6188-1-8) without an indication of title.1 Rachel also filed a request for production of
documents that asked for Steven to provide records documenting gifts and inheritance as
well as any other documents he intended to introduce as evidence to support a claim of
separate property.
{¶ 3} Steven was personally served with the original summons and complaint on
April 23, 2020. He filed an answer and counterclaim asserting, in relevant part, that the
parties are joint owners of the Eastcleft Drive real property “subject to [his] claims of
separate property” and, likewise, the parties are joint owners of “certain assets that may
constitute marital assets subject to an equitable division” that are also “subject to his claims
of separate property.” ([CITATION] Answer & Countercl. at 1-2.) In his affidavit of
property, he listed the Eastcleft Drive property as jointly owned, but “Paid with
Inheritance.” ([CITATION] Aff. of Property, List of Separate Property at 1.) He lists two
Edward Jones accounts (#...6188-1-8, #...65-1-3) as titled in his name, and one Edward
Jones account (#...6503-1-6) as titled in Rachel’s name. In his “list of separate property,”
among other items, he listed three Edward Jones accounts (#...9120-1-2, #...90-1-4, #...02-
1-0) and two Vanguard accounts (#...4368, #...8668).
{¶ 4} Steven initiated notices to take deposition and subpoenas for the record
custodians of Edward Jones & Co., L.P., the Vanguard Group, and other accounts. Rachel
filed a reply to the counterclaim in which she denied Steven’s separate property claims
related to the Eastcleft Drive home and joint assets of the marriage.
{¶ 5} On September 2, 2020, following negotiations by the parties, the magistrate
issued temporary orders reflecting the parties’ agreement as to use of the residences and
cars, custody and parenting of the minor children and conditions of Steven’s visitation, and
payment of expenses, among other items. Both parties then submitted pre-trial statements
indicating “[s]eparate property” as a disputed issue. ([CITATION] Pretrial Statement of
Plaintiff at 1; [CITATION] Updated Pretrial Statement of Plaintiff at 1; [CITATION]
Second Updated Pretrial Statement of Pl. at 1; [CITATION] Pre-trial Statement of Def.
at 1.)
{¶ 6} In Rachel’s pre-trial statement, she argued an equitable division of marital
property would not be appropriate due to Steven’s financial misconduct. Her attached
[SEGMENT 12]
1 The parties and the trial court differed in how many numbers they used to describe the various accounts at
issue. For clarity, we will refer to the accounts consistent with how accounts are listed in the divorce decree. No. 22AP-720
preliminary estimated balance sheet listed the Eastcleft Drive property as jointly owned,
the Edward Jones account #...03-1-6 in her name, and five other Edward Jones accounts
in Steven’s name. She indicated the estimated balance sheet was compiled with current
information available and would be updated with supplemental discovery. In Steven’s pre-
trial statement he argued that an equal division of marital property would be equitable and
that a distributive award from his separate property or income was not appropriate. He did
not provide more information on the accounts.
{¶ 7} In March 2021, Rachel filed a motion for contempt against Steven asserting
he was not abiding by the magistrate’s temporary orders, including failing to pay child
support, failing to pay his own debts, and causing damage to the marital residence. She
additionally filed a motion for an order to compel discovery asserting Steven had been
unwilling to participate in discovery. Around the same time, Steven’s attorney moved,
successfully, to withdraw due to issues with Steven failing to appear at a status conference
and thereafter not communicating with the attorney.
{¶ 8} The magistrate granted Rachel’s motion to compel discovery. In doing so,
the magistrate noted that Steven failed to appear at the hearing on the motion. The
magistrate set a deadline for Steven to comply with discovery related to Rachel’s request
for production of documents and stated, “[f]ailure of [d]efendant to comply with this order
may result in the exclusion or limitation of evidence that he may present at trial.” (Aug. 5,
2021 Mag.’s Order at 1.) Steven did not file additional discovery and, as a result, Rachel
filed another motion for contempt citing Steven’s noncompliance with the court’s discovery
order and new allegations of non-compliance with the magistrate’s temporary orders. The
record reflects Steven did not appear for the October 2021 hearing on the motion for
contempt.
{¶ 9} The trial court set and held an “uncontested” final hearing on November 15,
2021 at 9:00 a.m. (Nov. 18, 2021 Jgmt. Entry — Decree of Divorce at 1.) Rachel appeared
and was represented by counsel, but Steven did not appear. During the hearing, Rachel
testified that she and Steven are incompatible and had been living apart for more than one
year, that Steven was served with notice of the hearing via a private process server, and that
she reviewed and approved the judgment entry-decree of divorce submitted for approval
by the court. Rachel agreed that she understood the submitted decree allocated her assets
and debts, and that she believed that allocation to be fair and equitable under the No. 22AP-720
circumstances. She asked the court to enter a judgment entry consistent with the submitted
decree. Rachel’s mother also testified at the hearing to confirm the parties are incompatible
and had been living separately.
{¶ 10} Following the testimony, the trial court determined it had jurisdiction and
grounds to proceed with the divorce. The judge remarked that Steven had been properly
served but did not appear for the hearing, and that this was consistent with his behavior
throughout the case: he “was difficult and dragging his feet,” not showing up for court
hearings, and “causing angst.” (Nov. 15, 2021 Tr. at 8.) With regard to the financial matters
and property division, the judge found “the terms and conditions are fair and equitable, not
necessarily equal,” and that she would adopt and incorporate those terms into the decree.2
(Tr. at 9.)
{¶ 11} The trial court filed the judgment entry — decree of divorce on November 18,
2021. In it, the trial court first noted that, despite having proper notice of the uncontested
hearing date and being personally served with summons and a copy of the complaint in
April 2020, Steven failed to appear. The trial court then terminated the marriage and
granted the divorce on the grounds of incompatibility. The trial court further ordered,
pertinent to this appeal, that: the parties each retain one of the real properties (Rachel was
awarded the Eastcleft Drive property while Steven was awarded another property); Rachel
retain certain accounts in her name free and clear of any claim from Steven, including the
Edward Jones Roth IRA #...03-1-6, and Steven retain other certain accounts in his name;
and Rachel receive one-half the value of the balance of five other retirement/investment
accounts (Edward Jones Roth IRA #...6188-1-8; Edward Jones account #...9120-1-2;
Edward Jones account #...10904-1-2; Edward Jones Traditional IRA #...65-1-3; and
Vanguard Annuity #...3877).
{¶ 12} Steven did not file an appeal challenging the decree of divorce. Instead, on
March 11, 2022, Steven filed, through new counsel, a motion to vacate judgment or
alternatively a motion for relief from judgment pursuant to Civ.R. 60(B). He argued his
motion was timely filed since he filed it roughly three and one-half months after the divorce
2 While the appellate record does not contain a copy of the proposed decree of divorce, based on the trial court
judge’s statements during the hearing, we assume the final decree reflects the allocations of assets in Rachel’s
proposed decree. No. 22AP-720
decree was filed, which “is more than reasonable, as it is well within the one-year time
parameter required for [Civ.R. 60(B)(1)-(3)] motions.” [CITATION].
{¶ 13} Steven’s motion contended he had a meritorious claim since all proceeds in
the six retirement/investment accounts at issue were inheritances he received from his
family, and therefore were his separate, non-marital assets under R.C. 3105.171(A)(6)(a)(i)
and (iii). In the same vein, he argued that the Eastcleft Drive property was purchased in
large part with his inheritance money. According to Steven, Rachel affirmatively
misrepresented and/or materially failed to disclose these facts, leading her to be improperly
awarded more than $500,000, which in Steven’s view is “manifestly inequitable” and
constitutes a fraud upon the court. [CITATION].
{¶ 14} Finally, Steven contended relief was warranted under Civ.R. 60(B)(1), Civ.R.
60(B)(3), Civ.R. 60(B)(4), and Civ.R. 60(B)(5). Specifically, he argued he was entitled to
relief from judgment on the ground of mistake, inadvertence or excusable neglect under
Civ.R. 60(B)(1) because, although he “received notice of the uncontested hearing date that
was set for November 15, 2021,” Rachel’s mother “contacted [him] and * * * falsely stated
* * * that the hearing date was not happening that day” and was being moved. [CITATION]. He further argued he was entitled to relief from judgment under Civ.R.
60(B)(3) due to fraud, misrepresentation, or other misconduct. Steven’s argument in this
regard reasoned that Rachel (purportedly) knew that the accounts at issue comprised his
inheritance and that the marital property was purchased largely with his inheritance money
and, therefore, constituted non-marital property. He argued that despite this knowledge
Rachel failed to disclose these material facts; falsely listed these assets as joint assets in her
affidavit of property (as opposed to his own affidavit of property that he says accurately
characterized the accounts); failed to correct the record at the final hearing; and presented
the court with a proposed divorce decree that disposed of his separate property as if it was
jointly owned. Steven additionally argued that Civ.R. 60(B)(4), permitting relief from
judgment when it is no longer equitable that the judgment should have prospective effect,
and Civ.R. 60(B)(5), permitting relief from judgment due to fraud upon the court, both
applied “[f]or reasons set forth above.” [CITATION].
{¶ 15} Rachel filed a memorandum contra asserting Civ.R. 60(B) relief is
inappropriate in this case. She contended Steven’s allegations regarding Rachel’s mother
deceiving him were false, attached text messages as proof, and argued that, regardless, it is No. 22AP-720
Steven’s responsibility to appear for a hearing for which he had notice. Rachel further
argued she did not engage in fraud, misrepresentation, and/or other misconduct and
emphasized that although Steven raised the issue before the court and legally had the
burden to prove his separate property, he completely failed to comply with discovery or
related court orders and refused to attend any hearing—even the final uncontested hearing.
Steven replied, contending Rachel largely failed to dispute that he had a meritorious claim
and had grounds for relief under Civ.R. 60(B)(3) and (B)(5).
{¶ 16} On November 2, 2022, the trial court granted Steven’s motion. While the
trial court agreed “the onus was on [Steven] to appear at the final hearing, and [Steven]
clearly lacked participation throughout the case,” it determined Steven nevertheless had a
“meritorious claim or defense” in the “claim of separate property and alleged inequitable,
and even unlawful, division made by [Rachel’s] Judgment Entry – Decree of Divorce.”
(Emphasis deleted.) (Nov. 2, 2022 Decision & Jgmt. Entry at 5.) Furthermore, the trial
court found that although Steven failed to show he was entitled to relief pursuant to Civ.R.
60(B)(1) due to mistake, inadvertence, or excusable neglect or Civ.R. 60(B)(5) due to any
other reason justifying relief, Steven did have grounds for relief under Civ.R. 60(B)(3) and
60(B)(4).
{¶ 17} Specifically, the trial court found Steven had grounds for relief under Civ.R.
60(B)(3) due to fraud, misrepresentation, or misconduct. In support of this conclusion, the
trial court found Rachel was “shifting * * * blame” in arguing Steven failed to provide
discovery, participate in the divorce case, or meet his responsibility and burden to prove his
separate property claims. (Decision & Jgmt. Entry at 7.) Regarding Steven meeting his
burden, the trial court stated, “[he] did assert that the questioned assets were his separate
property when he filed both his Affidavit of Property and Pre-Trial Statement” and noted
its decision was at least partially based on the alleged “windfall” at issue. (Emphasis sic.)
Id. at 7-8. As to Civ.R. 60(B)(4), the trial court determined Steven “does have grounds for
relief due to it not being equitable that the property division component of the Judgment
Entry – Decree of Divorce having prospective effect under Civ.R. 60(B)(4).” (Emphasis
deleted.) Id. at 8.
{¶ 18} Finally, the trial court cited to [CITATION] to conclude that, overall, Steven’s Civ.R. 60(B) motion should
be granted due to “doubt” in the case: No. 22AP-720
[SEGMENT 13]
It is important to conclude that, in pertinent part, the GTE
Automatic Electric Court states in its Syllabus of the opinion
that:
***
. Where timely relief is sought from a default judgment and
the movant has a meritorious defense, doubt if any, should be
resolved in favor of the motion to set aside the judgment so that
cases may be decided on their merits.
***
In this instant case, there is doubt. Therefore, the Court finds
[Steven’s] Motion * * * WELL TAKEN and GRANTED.
(Emphasis sic.) (Nov. 2, 2022 Decision & Jgmt. Entry at 10.) After granting the motion,
the trial court vacated the November 18, 2021 divorce decree, reinstated the complaint for
divorce, and set a pre-trial hearing date.
II. ASSIGNMENTS OF ERROR
{¶ 19} Rachel presents two assignments of error for our review:
First Assignment of Error: The trial court erred and
abused its discretion by granting [Steven]’s Motion for Relief
from Judgment.
Second Assignment of Error: The trial court erred and
abused its discretion by concluding that its decree of divorce is
akin to a default judgment.
III. STANDARD OF REVIEW
{¶ 20} An appellate court reviews a trial court’s decision to grant or deny a Civ.R.
60(B) motion under an abuse of discretion standard. [CITATION]. However,
“courts lack the discretion to make errors of law, particularly when the trial court’s decision
goes against the plain language of a statute or rule.” [CITATION]. Accordingly, a court of appeals reviews questions of law de
novo. [CITATION].
IV. LEGAL ANALYSIS
{¶ 21} Because the second assignment of error informs resolution of the first
assignment of error, we will address the assignments of error out of order. We will begin
by considering whether the trial court erred in relying on “doubt” to tip the scale in Steven’s
favor, followed by assessing whether the trial court abused its discretion in granting No. 22AP-720
Steven’s Civ.R. 60(B) motion under the three-prong [CITATION] test. As detailed in the sections below, we find merit to both assigned errors and conclude the trial court’s decision and judgment granting Steven’s Civ.R. 60(B) motion must be reversed on the facts of this case.
A. Whether the trial court erred in determining “doubt” must be
resolved in Steven’s favor (Second Assignment of Error)
{¶ 22} In her second assignment of error, Rachel asserts the trial court erred and
abused its discretion by treating its decree of divorce as a default judgment, and, as a result,
resolving any “doubt” in favor of Steven pursuant to paragraph three of the syllabus in [CITATION]. We agree.
{¶ 23} [CITATION] involved a movant’s Civ.R. 60(B) motion to obtain relief from
a default judgment issued by the trial court following the defendant’s failure to plead and
defend against the plaintiff’s action for non-payment on an account. Within this context,
the Supreme Court of Ohio states: “Where timely relief is sought from a default judgment
and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the
motion to set aside the judgment so that cases may be decided on their merits.” Id. at
paragraph three of the syllabus. In the instant case, the trial court found this legal principle
“important” to its decision, determined “there is doubt” in this case, and “therefore” found
Steven’s motion to be well-taken. (Decision & Jgmt. Entry at 10.)
{¶ 24} However, as pointed out by Rachel, there cannot be a “default” divorce
decree. “Civ.R. 55, the rule that governs default judgments, does not apply in actions for
divorce.” [CITATION], ¶ 7, citing Civ.R. 75. The [CITATION] court explained that the trial court has an independent judicial obligation to divide the marital and separate property equitably between the parties and to allocate the parental rights and responsibilities for the care of the minor children of the marriage in a manner consistent with the best interest of the children. Id., citing R.C. 3105.171(B) and R.C. 3109.04(A). “ ‘The performance of this independent judicial duty does not lend itself to judgment by default.’ ” Id., quoting [CITATION], ¶ 62.
{¶ 25} Because the cited provision in [CITATION] arises in the context of relief
sought from a default judgment, a procedure unavailable in divorce actions, we find the No. 22AP-720
trial court erred in resolving doubt in favor of Steven based on [CITATION] and granting
Steven’s motion on this basis. Accordingly, we sustain Rachel’s second assignment of error.
B. Whether the trial court erred and abused its discretion in
determining Steven is entitled to relief from the divorce decree
pursuant to Civ.R. 60(B). (First Assignment of Error)
{¶ 26} In her first assignment of error, Rachel asserts the trial court erred and
abused its discretion by granting Steven’s Civ.R. 60(B) motion for relief from judgment.
Civ.R. 60(B), states:
On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment,
order or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise or excusable neglect;
(2) Newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under
Rule 59(B);
(3) Fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an
adverse party;
(4) The judgment has been satisfied, released or discharged, or
a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or
(5) Any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for
reasons (1), (2) and (3) not more than one year after the
judgment, order or proceeding was entered or taken.
A motion under this subdivision (B) does not affect the finality
of a judgment or suspend its operation.
{¶ 27} In [CITATION], the Supreme Court set forth a three-part test to obtain
relief from judgment pursuant to Civ.R. 60(B). A movant must demonstrate that: “(1) the
party has a meritorious defense or claim to present if relief is granted; (2) the party is
entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the
motion is made within a reasonable time, and, where the grounds of relief are Civ.R.
60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was No. 22AP-720
entered or taken.” GTE Automatic at paragraph two of the syllabus. “[T]hese requirements
are independent and in the conjunctive.” Id. at 151. Accordingly, a movant’s failure to
satisfy any one of these requirements compels a court to deny the Civ.R. 60(B) motion.
[CITATION].
{¶ 28} The trial court in this case found Steven presented grounds for relief from the
divorce decree pursuant to Civ.R. 60(B)(3) and (4). We note Steven does not argue other
Civ.R. 60(B) grounds to support his motion apart from those found by the trial court. (See
Appellee’s Brief at 15-26 (arguing the trial court properly exercised its discretion in granting
his motion under Civ.R. 60(B)(3) and (4)); Appellee’s Brief at 25 (arguing against reviewing
whether the trial court properly considered Civ.R. 60(B)(5)3 and stating that section is
“moot”). As explained in detail below, because Steven failed under the second GTE
Automatic requirement to identify a legally cognizable basis for relief under Civ.R. 60(B),
the trial court abused its discretion in granting his motion.
. Civ.R. 60(B)(3) is not grounds for relief from the divorce decree
{¶ 29} “Civ.R. 60(B)(3) permits relief from judgment in cases of fraud,
misrepresentation, and other misconduct by an adverse party.” [CITATION],
¶ 28. “ ‘[T]he fraud, misrepresentation, or other misconduct contemplated by Civ.R.
60(B)(3) refers to deceit or other unconscionable conduct committed by a party to obtain a
judgment and does not refer to conduct that would have been a defense to or claim in the
case itself.’ ” [CITATION], quoting [CITATION], ¶ 13.
{¶ 30} Rachel contends she did not provide false testimony or conceal evidence but
instead disagreed with the separate property claim that Steven asserted and then later (in
her view) abandoned. According to Rachel, disagreeing with the opposing party’s
characterization of property in a divorce action does not support granting relief pursuant
to Civ.R. 60(B)(3).
[SEGMENT 14]
3 See [CITATION], quoting [CITATION], “[M]ultiple Ohio courts, including this court, have concluded that,
if the alleged fraud occurred between the parties, Civ.R. 60(B)(3) is the only ground upon which the aggrieved
party can seek relief from a prior judgment.”). No. 22AP-720
{¶ 31} Steven argues Civ.R. 60(B)(3) is appropriate here because Rachel wrongfully
obtained a “windfall” from his separate, non-marital family inheritance by taking “unfair
advantage of [his] absence[.]” (Appellee’s Brief at 21-23.) Specifically, Steven argues
Rachel’s fraud, misrepresentation, or other misconduct consisted of: (1) not meeting her
burden of proof under R.C. 3105.171 by failing to present any sworn testimony regarding
the characterization of the assets; (2) not testifying regarding the assets in order to obtain
a large amount of money she knew was Steven’s separate inheritance money; (3) not
denying in her memorandum contra to Steven’s Civ.R. 60(B) motion the veracity of
Steven’s separate property claim; (4) not denying she received discovery; and (5)
dishonesty by being “less than forthcoming” with the “whole truth.” (Appellee’s Brief at 23-
24.) He adds that it is inequitable to allow Rachel to retain the money Steven claims to be
inheritance.
{¶ 32} We agree with Rachel that the trial court erred by misconstruing the burden
and duties involved in a divorce action where the parties dispute the characterization of
disclosed property under R.C. 3105.171 and, particularly, where the proponent of a claim of
separate property fails to appear to present evidence. We further agree this error led the
trial court to abuse its discretion in granting Steven relief pursuant to Civ.R. 60(B)(3).
{¶ 33} First, having reviewed the record we do not identify any “fraud,
misrepresentation, or other misconduct” to support Steven’s Civ.R. 60(B)(3) motion. In a
divorce proceeding, “a spouse * * * must not substantially and willfully fail to disclose to the
trial court his or her marital property, separate property, and other assets, debts, income,
and expenses, irrespective of the other spouse’s knowledge of the existence of such items.”
(Emphasis added.) [CITATION], ¶ 58. R.C. 3105.171(E)(3) obligates each spouse to disclose in a full and complete manner
all marital property, separate property, and other assets, debt, income, and expenses “of
the spouse.” “Fraud on an adverse party may exist when, for example, a party presents
material[ly] false testimony at trial, and the falsity is not discovered until after the trial.”
(Emphasis added.) [CITATION], ¶ 15.
{¶ 34} However, a party to a divorce action does not “misrepresent” information or
commit “fraud” or “other misconduct” under Civ.R. 60(B)(3) by merely contesting the
categorization of disclosed assets as marital or separate property. Instead, potential conflict No. 22AP-720
among the parties regarding the categorization of disclosed property is accommodated
within the normal legal framework to determine the division of assets in a divorce case.
Specifically, the proponent of alleged separate property has the burden to prove an asset is
separate and not marital property, the trial court must then determine the issue for
purposes of the divorce decree, and an aggrieved party may pursue a direct appeal of that
issue. See [CITATION], ¶ 14, citing [CITATION], ¶ 33 (determining, in a direct
appeal of a divorce decree, “[w]hen the parties dispute whether an asset is marital or
separate property, the asset is presumed marital property unless proven otherwise”); [CITATION], ¶ 5 (stating, in assessing a direct appeal
of the issue, “[t]he party seeking to have an asset classified as separate property must show,
by a preponderance of the evidence, that an asset or set of assets is traceable and is
separate”; R.C. 3105.171(B) (the “[trial] court shall * * * determine what constitutes marital
property and what constitutes separate property” and “divide the marital and separate
property equitably between the spouses” and in accordance with the statute).
{¶ 35} In this case, Steven does not appear to argue that Rachel concealed any asset,
but that, essentially, she failed to acquiesce to his contention that certain disclosed assets
were his separate property by either labeling them Steven’s separate property (not just
titled to him, for example) or by failing to testify at the hearing, in his absence, that the
disputed assets were Steven’s separate property. Contrary to Steven’s position, Rachel was
entitled to contest his characterization of disclosed property, and it was Steven’s burden—
not hers—to put forth evidence showing he acquired the assets through inheritance, and
therefore constituted his separate property under the applicable statutory definitions.4
{¶ 36} Second, by statute, it is the trial court’s responsibility to ensure the parties
fully and completely disclose marital and separate property and that the record is sufficient
4 See R.C. 3105.171(A)(3)(a)(i) (defining marital property, as relevant to this case, to include “[a]ll real and
personal property that currently is owned by either or both of the spouses, * * * and that was acquired by either
or both of the spouses during the marriage”); R.C. 3105.171(A)(3)(b) (Marital property does not include
separate property); R.C. 3105.171(A)(6)(a)(“[S]eparate property” in pertinent part means “all real and
personal property and any interest in real or personal property that is found by the court to be any of the
following: (i) An inheritance by one spouse by bequest, devise, or descent during the course of the marriage”;
(ii) “Any real or personal property or interest in real or personal property that was acquired by one spouse
prior to the date of the marriage”; or “(iii) Passive income and appreciation acquired from separate property
by one spouse during the marriage.” R.C. 3105.171(H) (stating generally, “the holding of title to property by
one spouse individually or by both spouses in a form of co-ownership does not determine whether the property
is marital property or separate property.”). No. 22AP-720
to support issuing a divorce decree. R.C. 3105.171(E)(3) (“the [trial] court shall require
each spouse to disclose in a full and complete manner all marital property, separate
property, and other assets, debt, income, and expenses of the spouse.”) (Emphasis added.);
R.C. 3105.171(B) (stating trial court’s duty to divide marital and separate property equitably
between the parties); R.C. 3105.171(A)(6)(a) (stating separate property includes real or
personal property that is “found by the court” to be inheritance); [CITATION] (explaining,
by way of a direct appeal, that the performance of the trial court’s independent judicial duty
pursuant to R.C. 3105.171 precludes the court from issuing in essence a default judgment).
Therefore, Steven’s core argument, rather than demonstrating misconduct by Rachel,
implicates appealable issues concerning the adequacy of the final hearing and the trial
court’s acceptance of the proposed decree.
{¶ 37} Lastly, “Civ.R. 60(B)(3) applies when an adverse party’s fraud,
misrepresentation, or misconduct in obtaining a judgment has prevented the other party
from fully and fairly presenting its case.” (Emphasis added.) [CITATION], citing [CITATION],
[CITATION,] at ¶ 23. See [CITATION], at ¶ 37 (determining Civ.R 60(B)(3) did not apply where the evidence failed to
support a finding that the opposing party knowingly made any misrepresentation of
material fact with the intention of misleading appellant, with the result that appellant
actually relied on the alleged misrepresentation).
{¶ 38} A party is not prevented from fully and fairly presenting its case when that
party chooses not to participate in the action. [CITATION] at ¶ 18 (determining that relief from
judgment pursuant to Civ.R. 60(B)(3) was not warranted where the movant could have
presented his claims but chose not to participate in the action and, therefore, was not
prevented by an adverse party from fully and fairly presenting his case). See also
[CITATION], at ¶ 59 (explaining
that, generally, if a party fails to appear at the final divorce hearing, any deficiency claimed
by appellant is explained by appellant’s failure to appear at his final divorce hearing);
[CITATION] at ¶ 32 (determining that, where disclosed assets are at issue, a party that
chooses to “sit on [his or her] rights,” thereby “fail[ing] to take any action to insure [his or
her] own interests,” cannot then use equity considerations to support later relief under
Civ.R. 60(B).). No. 22AP-720
[SEGMENT 15]
{¶ 39} Here, the characterization of certain assets as marital or separate property
was openly disputed by the parties and was an issue that they asked the trial court to
resolve. Steven failed to appear at the hearing to present evidence despite having proper
notice, and, as a result, undisputedly did not meet his burden in proving the disputed assets
were separate property. In other words, Rachel did not prevent Steven from fully and fairly
presenting his case—his own actions did. Because Rachel’s alleged fraud,
misrepresentation, or other misconduct did not prevent Steven from adequately presenting
his case to the trial court, he is not entitled to relief from judgment under Civ.R. 60(B)(3).
[CITATION] at ¶ 30-31.
{¶ 40} Therefore, for all the considerations discussed, we conclude the trial court
abused its discretion in determining Steven was entitled to relief pursuant to Civ.R.
60(B)(3).
2. Civ.R. 60(B)(4) is not grounds for relief from the divorce decree
{¶ 41} Next, Rachel contends the trial court misinterpreted Civ.R. 60(B)(4), which
authorizes relief from a final judgment when “it is no longer equitable that the judgment
should have prospective application.” We agree.
{¶ 42} Civ.R. 60(B)(4) “was designed to provide relief to those who have been
prospectively subjected to circumstances which they had no opportunity to foresee or
control.” [CITATION]. To prevail under Civ.R. 60(B)(4),
the movant must show “ ‘specific events which occurred after the judgment which adversely
affected the fair application of the judgment.’ ” [CITATION], quoting [CITATION], ¶ 48 (“Relief under Civ.R. 60(B)(4) must be warranted by events
occurring subsequent to the entry of the judgment in question. * * * Events which occurred
prior to judgment cannot be relied upon as grounds to vacate the judgment pursuant to
Civ.R. 60(B)(4).”).
{¶ 43} In this case, the trial court determined Steven did have grounds for relief
under Civ.R. 60(B)(4) “due to it not being equitable that the property division component
of the Judgment Entry – Decree of Divorce having [sic] prospective application [due to
Steven’s allegations of Rachel committing fraud].” (Decision & Jdmt. Entry at 8.) Because
the trial court’s decision on Civ.R. 60(B)(4) is based on events that allegedly occurred prior No. 22AP-720
to the divorce decree, instead of events after the decree that made it inequitable to apply it
prospectively, the trial court committed a legal error constituting an abuse of discretion in
this regard.
3. Steven cannot use Civ.R. 60(B) as a substitute for an appeal
{¶ 44} Finally, we emphasize “[a] litigant cannot use a Civ.R. 60(B) motion for relief
from judgment as a substitute for a timely appeal.” [CITATION]. As previously indicated, the trial court’s division of assets
in a divorce decree, including its classification of assets as marital or separate property, is
an issue subject to direct appeal. See, e.g., [CITATION], 2020-
Ohio-5520, ¶ 1, 21-31 (assessing, in a direct appeal of a divorce decree, the trial court’s
characterization of property as marital as opposed to separate); [CITATION],
2023-Ohio-3226, ¶ 1, 11 (reviewing wife’s challenge to the trial
court’s division of assets in a direct appeal from divorce decree); [CITATION] at ¶ 1, 49
(assessing, in wife’s direct appeal of the divorce decree, whether the trial court properly
divided bank accounts and real estate after the wife failed to appear at the final hearing);
[CITATION], 2008-Ohio-6214, ¶ 1, 11-18 (considering direct
appeal from divorce decree and challenge to the trial court’s division of the parties’ property
following the appellant’s failure to attend the final divorce hearing to present evidence).
See also [CITATION] at ¶ 7 (challenging in a direct appeal from divorce decree the manner in
which the trial court conducted the hearing).
{¶ 45} If Steven disagreed with how the trial court conducted the final hearing, the
propriety of the trial court’s acceptance of the proposed decree, and/or the sufficiency of
the evidence to support the asset division, he should have directly appealed the final
judgment — decree of divorce to seek a reversal based on those issues. Steven is prohibited
from using Civ.R. 60(B) to avoid difficulties he would have faced on direct appeal due to
the unfavorable record resulting from his absence.
{¶ 46} For all the above reasons, we conclude Rachel has demonstrated the trial
court erred and abused its discretion in determining, under the second GTE Automatic
requirement, that Steven is entitled to relief under one of the grounds stated in Civ.R.
60(B). Because Steven failed to satisfy one of the GTE Automatic requirements, the trial
court was compelled to deny his Civ.R. 60(B) motion and abused its discretion in failing to No. 22AP-720
do so. [CITATION] at 151; [CITATION], 2018-Ohio-980, at ¶ 11.
Accordingly, we sustain Rachel’s first assignment of error.
V. CONCLUSION
{¶ 47} Having sustained Rachel’s two assignments of error, we reverse the judgment
of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment reversed.
MENTEL and EDELSTEIN, JJ., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
JESSE VON STEIN, et al., :
Appellants, : CASE NO. CA2023-04-040
: OPINION
- vs -
/11/2023
:
DAVID BRANDENBURG, et al., :
Appellees. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV 2020 07 1082
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellants.
Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, for appellees.
S. POWELL, P.J.
{¶ 1} Appellants, Jesse Von Stein and Jesse Von Stein dba Lake Bailee
Recreational Park, LLC, appeal from the decision of the Butler County Court of Common
Pleas granting summary judgment, monetary damages, and a permanent injunction in favor
of, and as requested by, appellees, David and Charlotte Brandenburg, and David
Brandenburg dba Brandenburg Trucking, LLC. For the reasons outlined below, we affirm. Butler CA2023-04-040
Facts and Procedural History
{¶ 2} This case involves a surface water dispute between neighboring property
owners who own real property located on Jackson Road in St. Clair Township, Butler
County, Ohio. Von Stein owns 14 acres of real property located at 2070 Jackson Road.
The Brandenburgs own the neighboring 18 acres of real property located at 2072 Jackson
Road.
{¶ 3} On July 6, 2020, Von Stein and Von Stein dba Lake Bailee Recreational Park
filed a complaint setting forth three causes of action against David and Charlotte
Brandenburg and David Brandenburg dba Brandenburg Trucking. Those three causes of
action were trespass, nuisance, and negligence. Paragraph one of the complaint alleged
the following:
Plaintiffs, Jesse Von Stein is a Butler County, Ohio resident and
president/owner of Lake Bailee Recreational Park, LLC, a
Limited Liability Company doing business in Butler County,
Ohio.
{¶ 4} Von Stein's complaint went on to allege in paragraph 11 that the
Brandenburgs had changed the topography of their property located at 2072 Jackson Road,
which in turn "caused the pre-existing natural flow of water, surface water, as well as
drainage as defined in Ohio Revised Code § 6117.01, resulting in the water overflowing"
onto his property located at 2070 Jackson Road.1 This is in addition to the complaint
alleging in paragraphs 12-13, 20, and 36 that the continuous overflow of water, surface
water, "contaminated water," drainage, and "other fluid" from the Brandenburgs' property
onto Von Stein's property had created ongoing issues that impermissibly interfered with his
use and enjoyment of the property. This included, as alleged in paragraph 15 of the
1. The complaint alleges that this topography change began in December of 2016 when the Brandenburgs
first started constructing a building "within feet" of the common property line separating the two properties.
Butler CA2023-04-040
complaint, runoff from the Brandenburgs' property contaminating the lake located on Von
Stein's property, which purportedly caused the fish in the lake to die off, as well as other
[SEGMENT 16]
unspecified damage to the "ecosystem and surrounding premises * * *." The complaint
requested compensatory damages in an amount in excess of $25,000 and a permanent
injunction ordering the Brandenburgs to implement "proper water regulation techniques" on
their property to stop the continued intrusion "by way of water and contaminated water."
{¶ 5} On July 31, 2020, the Brandenburgs and Brandenburg Trucking filed an
answer to Von Stein's complaint. As part of their answer, the Brandenburgs admitted to the
basic facts alleged in paragraph one of the complaint set forth above. This included an
admission from the Brandenburgs that Von Stein's business, Lake Bailee Recreational
Park, was a limited liability company doing business in Butler County, Ohio. The
Brandenburgs generally denied the other remaining allegations as set forth in the complaint
and as levied against them. This included the allegations set forth in paragraphs 11-13, 15,
20, and 36 discussed in the preceding paragraph.
{¶ 6} Along with their answer, the Brandenburgs also filed a counterclaim against
Von Stein and Lake Bailee Recreational Park, raising the same three causes of action that
Von Stein had levied against them, trespass, nuisance, and negligence. More specifically,
the Brandenburgs' counterclaim alleged in paragraph six that Von Stein had "built an
earthen/rock berm" on the real property located on 2070 Jackson Road, which caused the
"natural surface water flow" on that property, as well as the neighboring real property
located at 2072 Jackson Road, "to become unreasonably altered." The counterclaim then
went on to allege in paragraph nine that the construction of this berm had caused the
Brandenburgs to suffer injury, and continue to suffer injury, to their property. The
counterclaim alleged that these injuries included, but were not limited to, the diminution in
their property's value, costs of repairs and cleanup, costs to correct drainage issues, as well
Butler CA2023-04-040
as "annoyance, discomfort, inconvenience, and impediments to the potential sale" of the
property. The counterclaim requested compensatory damages in an amount in excess of
$25,000 and, in the counterclaim's paragraph six, a permanent injunction ordering Von
Stein "to remove the earthen/rock berm" on his property "that is unreasonably interfering
with the natural flow of water between the properties."
{¶ 7} On August 11, 2020, Von Stein and Lake Bailee Recreational Park filed an
answer generally denying the allegations set forth within the Brandenburgs' counterclaim.
The following year, on May 7, 2021, Von Stein sat for his deposition. Several months later,
on October 21, 2021, the Brandenburgs moved for summary judgment. In their motion, the
Brandenburgs requested summary judgment on Von Stein's complaint, as well as a partial
summary judgment on their counterclaim against Von Stein. To support their motion, the
Brandenburgs provided the trial court with a report and affidavit from their expert witness,
Eric R. Drozdowski, P.E., a senior civil/structural engineer who, following his investigation
into the matter, concluded to a reasonable degree of professional certainty that:
a. Construction activities on the Brandenburg property did not
alter the overall elevation and grading of the property.
b. The surface water flow rate changes caused by the
construction/alterations were inconsequential to cause new
flood patterns on the adjacent property.
c. There is no evidence to suggest that antifreeze, battery acid,
or any other automotive fluids or chemicals are being disposed
of on the ground of the Brandenburg property, or that any fluids
or chemicals are draining onto the Von Stein property from the
Brandenburg property.
d. Additionally, there is no evidence to suggest that
Brandenburg has done anything to cause or contribute to
contamination of the stocked fishing pond located on the east
side of the Von Stein property.
This is in addition to Drozdowski concluding that:
e. The natural flow of water on both the Von Stein and
Butler CA2023-04-040
Brandenburg properties is from west to east.
f. The placement of an earthen berm by Von Stein around the
south and east sides of the Brandenburg property is impeding
the natural flow of water from west to east, and reportedly
causing flooding on the Brandenburg property during periods of
significant rainfall.
g. Von Stein refused to allow St. Clair Township to
modify/enlarge the drainage ditch along Jackson Road, which
would have allowed Brandenburg to drain surface water on his
property into the roadside ditch instead of allowing it to naturally
flow from the Brandenburg property onto the Von Stein
property.2
{¶ 8} On February 7, 2022, the trial court granted the Brandenburgs' motion for
summary judgment in its entirety. In that decision, the trial court determined that:
Defendants have presented competent evidence by way of
expert opinion that it was unreasonable for Plaintiffs to surround
the real property at 2072 Jackson Road with an earthen berm,
and that the earthen berm blocks the natural flow of surface
water causing damage to Defendants. Defendants have also
used the deposition testimony of Von Stein to support their
allegations that Plaintiffs have no evidence to support the claims
they have asserted against Defendants.
{¶ 9} On February 22, 2022, Von Stein filed a motion requesting the trial court
reconsider its summary judgment decision given that certain exhibits had been inadvertently
excluded from the record. The parties thereafter entered into an agreed entry noting that
they had "reached an agreement concerning the submission of exhibits" in this case, as
well as an agreement that those exhibits "shall be considered as admitted" as part of Von
Stein's memorandum in opposition to the Brandenburgs' previous motion for summary
judgment. The trial court granted Von Stein's motion for reconsideration on March 8, 2022.
Shortly thereafter, on March 25, 2022, the trial court issued a decision granting the
Brandenburgs' reconsidered summary judgment motion, thus once again finding Von Stein
2. The listed findings are direct quotes taken from Drozdowski's affidavit that was attached to the
Brandenburgs' motion for summary judgment filed with the trial court on October 21, 2021.
Butler CA2023-04-040
and Lake Bailee Recreational Park liable to the Brandenburgs on their claims of trespass,
nuisance, and negligence. The trial court then set the matter for a damages hearing, which
ultimately took place on December 2, 2022.
{¶ 10} On March 3, 2023, the trial court issued its decision on damages, both
monetary damages and equitable damages in the form of permanent injunctive relief. In
this decision, the trial court initially noted its finding that Von Stein's business, Lake Bailee
Recreational Park, was not an actual party to this case and, "as far as this lawsuit is
concerned," was merely a "tradename" or "dba" of Von Stein himself. Thus, according to
the trial court, there was "effectively one counterclaim-defendant," Von Stein, "a natural
person." The trial court then noted its other finding that, "the tortious conduct of constructing
the berm and disrupting the natural flow of surface water was committed by Von Stein as
owner of the property at 2070 Jackson Road in his individual capacity." The trial court
reached this decision upon finding Von Stein's testimony that he "created the earthen berm
in question at the direction of, as agent for or for the benefit of Lake Bailee Recreational
Park, LLC," was not credible.
{¶ 11} The trial court then noted its alternative finding that, even if it were to assume
Von Stein's business, Lake Bailee Recreational Park, was "a limited liability entity" that
"owned a legal interest" in the property located at 2070 Jackson Road, Von Stein, in his
individual capacity, "would still be jointly and severally liable for said tortious conduct." The
trial court noted its decision was based on the long established principles holding "[a]gents
and employees do not escape liability for their tortious and wrongful actions simply because
they act as agents or employees of a separate legal entity."3 The trial court therefore
3. For this, the trial court cited this court's decision in [CITATION], which notes that "[a] defendant cannot shield himself from liability for the conduct in
which he allegedly engaged merely because he engaged in that conduct as a corporate officer, and the fact
that a plaintiff may not be able to pierce the corporate veil is irrelevant to the issue." Id. at ¶ 10, citing [CITATION] (discussing Ohio law of agency).
Butler CA2023-04-040
determined:
In this case, [CITATION] is responsible for his tortious acts of
creating the berm and the resulting nuisance. For the foregoing
reasons it is not necessary or appropriate, as suggested in [CITATION]'s written closing argument, that this Court apportion
damages between Jesse [CITATION] and Jesse [CITATION] dba
Lake Bailee Recreational Park, LLC.
{¶ 12} The trial court then set forth the specific damages it had decided to award to
the Brandenburgs. In so doing, the trial court stated:
[SEGMENT 17]
After careful consideration of the evidence and arguments, the
Court awards to Brandenburg [which, as previously noted in the
trial court's decision, consisted of both David and Charlotte
Brandenburg and David's business, Brandenburg Trucking] and
against [CITATION] economic damages of $14,500; non-
economic damages for annoyance and discomfort of $30,000;
and $0.00 punitive damages, as the Court does not find
evidence of malice or aggravated or egregious fraud.
{¶ 13} The trial court also issued a permanent injunction against [CITATION]. In so
doing, the trial court stated:
The Court finds that Brandenburg has suffered actual harm.
The Court finds that the nuisance created by [CITATION] can and
should be abated by a mandatory, permanent injunction
requiring the removal of the berm constructed by [CITATION] and
restoration of the natural flow of surface water runoff to the
conditions that pre-existed the construction of the berm.
Accordingly, [CITATION], including his successors or assigns, is
ordered to remove the entire earthen berm, restoring the area
surrounding the berm and the natural flow and drainage of
surface water to those conditions that existed prior to the
construction of the earthen berm. This restoration work is
ordered to be completed on or before June 30, 2023. Time is
of the essence.
{¶ 14} On April 3, 2023, [CITATION] filed a timely notice of appeal from the trial court's
decision. Following briefing from both parties, oral argument was held before this court on
November 20, 2023. [CITATION]'s appeal now properly before this court for decision, [CITATION]
and Lake Bailee Recreational Park have raised two assignments of error for this
court's review.
Butler CA2023-04-040
Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT ERRED BY IMPOSING PERSONAL LIABILITY AND
DAMAGES ON VON STEIN.
{¶ 16} In his first assignment of error, Von Stein argues the trial court erred by
imposing personal liability upon him for constructing the earthen berm on his property and
ordering him to pay the total $44,500 in monetary damages awarded to the Brandenburgs
in his individual capacity rather than to his business, Lake Bailee Recreational Park. This
is because, according to Von Stein, it was error for the trial court to deny him the "limited-
liability protection" granted to him through his business, Lake Bailee Recreational Park,
upon finding he had "failed to prove the LLC existed for [him] to enjoy limited liability
protections" afforded to him under Chapter 1705 of the Ohio Revised Code. 4 Von Stein
supports this argument by noting the Brandenburgs' answer, wherein they admitted Lake
Bailee Recreational Park was a limited liability company doing business in Butler County,
Ohio, as well as making reference to the so-called "party-presentment rule."5 Von Stein
also argues that it was error for the trial court to deny him the "limited-liability protection" he
4. Effective January 1, 2022, the General Assembly repealed R.C. Chapter 1705 and enacted R.C. Chapter
1706, the Ohio Revised Limited Liability Company Act, pursuant to 2020 Am.Sub.S.B. No. 276. "The Act
provided that the repeal of R.C. Chapter 1705 would 'not affect an action commenced, proceeding brought,
or right accrued prior to January 1, 2022.'" [CITATION] This case commenced
with Von Stein filing a complaint against the Brandenburgs on July 6, 2020. Therefore, although it is now R.C.
Chapter 1706 that would generally apply to limited liability companies in Ohio, it is nevertheless the repealed
R.C. Chapter 1705 that applies to this case.
5. The "party-presentment rule," also known as the "party-presentation rule" or the "principle of party
presentation," is a rule that applies in both civil and criminal cases that generally obligates trial courts and
courts of appeal to "rely on the parties to frame the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present." [CITATION]
This is because courts are normally only to decide questions presented by the parties themselves. [CITATION] We note,
however, that "[t]he party presentation principle is supple, not ironclad," for "[t]here are no doubt circumstances
in which a modest initiating role for a court is appropriate." [CITATION] Butler CA2023-04-040
was entitled to under R.C. Chapter 1705 as the owner of Lake Bailee Recreational Park
because "the defendants failed to plead or move to pierce the LLC's veil," and "the trial
court never applied the veil-piercing test." Both of Von Stein's arguments lack merit.
{¶ 17} Generally, pursuant to subsections (A) and (B) of the now former R.C.
1705.48, "a member of an LLC is not personally liable for the LLC's debts, obligations, or
liabilities, including the LLC's contractual liabilities."6 [CITATION], ¶ 19. In this case, however, the trial court did not find credible
Von Stein's testimony that he had constructed the earthen berm at issue "at the direction
of, as an agent for or for the benefit of Lake Bailee Recreational Park, LLC." The trial court
instead found Von Stein had acted in his own individual capacity, thereby causing the
Brandenburgs to suffer actual harm, in the form of both economic and non-economic
damages, in the amount of $44,500. "[N]either the corporate shield nor a shield of limited
liability insulates a wrongdoer from liability for his or her own tortious acts." [CITATION], ¶ 30. This rule was
codified in the now former R.C. 1705.48(D), which, as applicable to this case, provided that
a member of a limited liability company could be held personally liable for that member's
"own actions or omissions." Therefore, although the trial court may have taken a
roundabout way of getting there, we nevertheless find no error in the trial court's decision
to impose personal liability upon Von Stein in this case.7 Accordingly, finding no error in
6. The principles previously set forth in former R.C. 1705.48(A) and (B) are now codified in R.C. 1706.26,
which provides, in pertinent part, that "[a] person who is a member of a limited liability company is not liable,
solely by reason of being a member, for a debt, obligation, or liability of the limited liability company or a series
thereof, whether arising in contract, tort, or otherwise * * *."
7. We note that this holding remains true regardless of whether we agree or disagree with the trial court's
decision finding Von Stein had failed to prove his business, Lake Bailee Recreational Park, was a limited
liability company that could, under normal circumstances, provide him with limited liability protections pursuant
to R.C. Chapter 1705. That is to say, given the trial court's finding Von Stein's testimony that he had
constructed the earthen berm at issue "at the direction of, as an agent for or for the benefit of Lake Bailee
Recreational Park, LLC" not credible, the question of whether Lake Bailee Recreational Park is a limited
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'vacheresse-v-paulchel', which should be replaced with `[CITATION]`. Butler CA2023-04-040
the trial court's decision, Von Stein's first assignment of error lacks merit and is overruled.
Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ERRED BY IMPOSING AN INJUNCTION.
{¶ 19} In his second assignment of error, Von Stein argues the trial court erred by
imposing a permanent injunction requiring him to remove the earthen berm that he
constructed on his property, thereby requiring him to return the property to its prior, non-
offending condition. We disagree.
Abuse of Discretion Standard of Review
{¶ 20} "The decision whether to grant or deny a permanent injunction rests within the
sound discretion of the trial court and depends upon the facts and circumstances present
in each individual case." [CITATION]; and [CITATION]. It is therefore an
abuse of discretion standard that this court applies on appeal from a trial court's decision
granting or denying an applicant's request for a permanent injunction. See [CITATION], ¶ 34. "A decision
constitutes an abuse of discretion when the trial court acted unreasonably, arbitrarily, or
unconscionably." [CITATION], ¶ 32. "'A decision is unreasonable if there is no sound reasoning process
that would support that decision.'" [CITATION], quoting [CITATION]. A decision is arbitrary if it is made
without consideration of or regard for facts or circumstances. In re E.E.D., 8th Dist.
[SEGMENT 18]
liability company is not material to the issue of Von Stein's own personal liability in this case for it was he, not
his business, who built the earthen berm.
- 10 - Butler CA2023-04-040
[CITATION]. "A decision may also be arbitrary if it lacks
any adequate determining principle and is not governed by any fixed rules or standards."
[CITATION], ¶ 16. A
decision is unconscionable if it affronts the sense of justice, decency, or reasonableness.
[CITATION].
Permanent Injunction Standard
{¶ 21} "Injunctive relief is an equitable remedy that is available only where there is
no adequate remedy at law." [CITATION]. That is to say, injunctive relief "is not available as a right," but may
nevertheless "be granted by a court if it is necessary to prevent a future wrong that the law
cannot." [CITATION]. The test for the granting or denial of a permanent
injunction is substantially the same as that for a preliminary injunction.8 [CITATION] However, unlike the
standard applied for a preliminary injunction, which initially requires the applicant to
demonstrate just that there is a substantial likelihood that the applicant will prevail on the
merits, see [CITATION] "[a] party
seeking a permanent injunction must first prevail on the merits of its claim." [CITATION] "A
prevailing party is generally the party in whose favor the decision, verdict, or judgment is
rendered." [CITATION] Upon the applicant prevailing on the merits, the
8. Although substantially similar, we note that within his appellate brief, Von Stein's counsel provided this
court with the test for granting a preliminary injunction and not the test for granting a permanent injunction.
Given our familiarity with Von Stein's counsel's above-board work and overall good natured and honest
character, we will presume that this was merely an oversight and not an intentional misrepresentation by
appellate counsel to mislead this court.
- 11 - Butler CA2023-04-040
applicant then has the burden of proving, by clear and convincing evidence, three additional
factors for the trial court to consider when determining whether a permanent injunction
should be issued. See [CITATION].
{¶ 22} Initially, the applicant has the burden of proving, by clear and convincing
evidence, "that immediate and irreparable injury, loss, or damage will result to the
applicant." [CITATION]. "Irreparable harm is an injury for which there is no plain, adequate, and
complete remedy at law, and for which money damages would be impossible, difficult, or
incomplete." [CITATION]. Next, the applicant has the burden of proving, also by clear and convincing evidence, that no third parties would be
unjustifiably harmed by the issuance of a permanent injunction. [CITATION]. Lastly, the applicant
has the burden of proving, by clear and convincing evidence, that the public interest would
be served by a permanent injunction being issued. [CITATION]. No one factor in the
analysis is dispositive, however. [CITATION]. These established factors must instead
be weighed and balanced and "as is characteristic of the law of equity." [CITATION].
Von Stein's Argument and Analysis
{¶ 23} To support this assignment of error, Von Stein initially argues it was error for
the trial court to impose a permanent injunction requiring him to remove the earthen berm
from his property because none of the pleadings, the Brandenburgs' motion for summary
- 12 - Butler CA2023-04-040
judgment, or the trial court's various entries and orders provided him with sufficient notice
that the "damages hearing was consolidated with an injunction hearing." [CITATION] also
argues that it was an error for the trial court to issue a permanent injunction requiring him
to remove the earthen berm from his property because the Brandenburgs never requested
the trial court grant them that type of injunctive relief. We disagree with [CITATION]'s
arguments. We instead find [CITATION]'s arguments to be somewhat disingenuous given
the fact that, pursuant to Civ.R. 54(C), except as to a party against whom a default judgment
is entered, "every final judgment shall grant relief to which the party in whose favor it is
rendered is entitled, even if the party has not demanded the relief in the pleadings."
{¶ 24} But, even when ignoring the express language found in Civ.R. 54(C), the
Brandenburgs in this case actually did request a permanent injunction be issued by the trial
court. Specifically, in paragraph six of their counterclaim, the Brandenburgs requested the
trial court to issue:
An Order to Plaintiffs to remove the earthen/rock berm on the
property line of Plaintiffs and Defendants that is unreasonably
interfering with the natural flow of water between the properties
(injunctive relief).
Therefore, to the extent [CITATION] claims it was error for the trial court to impose a
permanent injunction requiring him to remove the earthen berm from his property because
he did not have sufficient notice that the "damages hearing was consolidated with an
injunction hearing," or because the Brandenburgs never requested the trial court grant them
that type of injunctive relief, such arguments lack merit.
{¶ 25} In so holding, we find it necessary to note our disagreement with [CITATION]'s
argument that it would have been perfectly acceptable for the trial court to issue a decision
granting summary judgment to the Brandenburgs finding it was the earthen berm on his
property that was "block[ing] the natural flow of surface water," thereby causing the
- 13 - Butler CA2023-04-040
Brandenburgs harm, only for the trial court to then forego issuing a permanent injunction
requiring the earthen berm be removed. With this claim, Von Stein is essentially arguing
that despite there being no issue of material fact that it was the earthen berm on his property
that was causing the Brandenburgs harm, the trial court should have nevertheless allowed
the earthen berm to remain. However, given the record properly before this court, had the
trial court forgone issuing a permanent injunction requiring the earthen berm be removed
from Von Stein's property, this would have virtually guaranteed that the Brandenburgs
would continue to suffer harm and incur additional damages for which Von Stein would be
further liable. Why Von Stein would subject himself to that is beyond this court's
comprehension, but nevertheless the path for which Von Stein seems to have chosen given
that Von Stein has yet to remove the earthen berm from his property and contempt
proceedings against Von Stein have begun. This included the trial court scheduling the
matter for a contempt hearing to take place on November 21, 2023, one day after this court
heard oral argument in this case.
{¶ 26} Moving on, as additional support for this assignment of error, Von Stein
argues the trial court "failed to apply the permanent-injunction test." To support this claim,
Von Stein challenges whether there was sufficient evidence presented that would allow for
a permanent injunction being issued in this case. In so doing, Von Stein concedes the
permanent injunction standard's first two points. That is, Von Stein concedes that the
Brandenburgs prevailed on the merits of their claims against him, and that the trial court
"considered and addressed" the immediate and irreparable injury, loss, or damage that
would result if the Brandenburgs were not granted a permanent injunction. Where Von
Stein takes exception is with the trial court's consideration, or lack thereof, with the
permanent injunction standard's third and fourth points. Those being, whether the applicant
met his or her burden of proving, by clear and convincing evidence, that no third parties
- 14 - Butler CA2023-04-040
would be unjustifiably harmed by the issuance of a permanent injunction, and whether the
public interest would be served by a permanent injunction being issued. Von Stein refers
to these latter two points as "elements" that the Brandenburgs were required to prove before
the trial court could issue a permanent injunction in this case. But, contrary to Von Stein's
claim, the permanent injunction standard is composed of the four previously mentioned
factors, not elements. The same is true as it relates to the standard for the issuance of a
preliminary injunction. See [CITATION].
{¶ 27} Elements are required to be proven to establish a particular claim or defense.
Factors, however, are not. Factors are instead a series of lesser, but nonetheless
important, evidentiary facts and/or considerations that assist courts in reaching a
determination on the ultimate issue at hand. In this case, for example, the ultimate issue
being whether the Brandenburgs were entitled to a permanent injunction against Von Stein
that required him to remove the earthen berm that he had constructed on his property,
thereby requiring him to return the property to its prior, non-offending condition. The trial
court determined that the Brandenburgs were entitled to such an injunction. Given its
analysis on this issue, it is clear that the trial court reached this decision based primarily on
the permanent injunction standard's second factor. That being, whether the Brandenburgs
had established, by clear and convincing evidence, that they had suffered, and would
continue to suffer, immediate and irreparable injury, loss, or damage if they were not
granted a permanent injunction in this case. This included the trial court finding Von Stein
had already caused actual harm to the Brandenburgs to the tune of $44,500 in damages;
[SEGMENT 19]
$14,500 in economic damages with an additional $30,000 in non-economic damages for
- 15 - Butler CA2023-04-040
the annoyance and discomfort that they were forced to endure. This was not error.
{¶ 28} It was also not error for the trial court to not specifically mention within its
decision whether it had considered each of the four factors making up the permanent
injunction standard set forth above. There is no magic words requirement that a trial court
must state before a permanent injunction may be imposed. See generally [CITATION] at ¶ 33 (discussing the permanent custody standard and what is required of a
trial court before issuing a permanent injunction). The same holds true for a preliminary
injunction. All that is required is for the trial court to "engage in a balancing process
designed to weigh the equities between the parties in determining whether or not injunctive
relief is appropriate." [CITATION] This analysis involves the trial court "considering
and weighing 'the relative conveniences and comparative injuries to the parties which would
result from the granting or refusal of injunctive relief.'" [CITATION] The trial court clearly did that in this case. To the
extent Von Stein claims otherwise, such argument again lacks merit. Therefore, having
found no merit to any of the arguments raised by Von Stein herein in support of his second
assignment of error, Von Stein's second assignment of error also lacks merit and is
overruled.
Conclusion
{¶ 29} For the reasons outlined above, and having now overruled each of Von Stein's
two assignments of error raised for review, Von Stein's appeal from the trial court's decision
granting summary judgment, monetary damages, and a permanent injunction in favor of the
Brandenburgs is denied.
{¶ 30} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
- 16 -
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 23AP-98
(C.P.C. No. 22CR-6172)
v. :
(REGULAR CALENDAR)
Ivan E. Torres-Mesa, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 5, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and Paula M.
Sawyers, for appellee. Argued: Paula M. Sawyers.
On brief: Beck Peistrup, LTD, and Robert James Beck, Jr., for
appellant. Argued: Robert James Beck, Jr.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Ivan E. Torres-Mesa, appeals from a decision and entry
of the Franklin County Court of Common Pleas ordering Ivan to be held without bond
pursuant to R.C. 2937.222. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On December 30, 2022, plaintiff-appellee, State of Ohio, issued a 39-count
indictment charging Ivan and two co-defendants, Raymundo Martinez-Mesa and Jessica L.
Delacruz Toscana, with felony drug trafficking, drug possession, and illegal manufacture of
drugs. The indictment charged each of the three co-defendants with the same 13 offenses:
six counts of trafficking in a fentanyl-related compound, in violation of R.C. 2925.03, first-
degree felonies; six counts of possession of a fentanyl-related compound, in violation of
R.C. 2925.11, first-degree felonies; and one count of illegal manufacture of drugs, in No. 23AP-98
violation of R.C. 2925.04, a second-degree felony. Each of the possession and trafficking
charges contained accompanying firearm specifications and six of those counts additionally
contained accompanying major drug offender specifications.
{¶ 3} Prior to Ivan’s arraignment, the state filed a motion to hold Ivan without bail
or bond pursuant to R.C. 2937.222. The trial court then conducted Ivan’s arraignment on
January 6, 2023, during which Ivan entered a plea of not guilty to all 13 counts. The trial
court ordered Ivan held without bail pending a hearing on the state’s motion to hold Ivan
without bail or bond.
{¶ 4} On January 12, 2023, the trial court held a combined denial of bail or bond
hearing for Ivan, Jessica, and Raymundo. At the hearing, James Walker, a detective with
the Columbus Division of Police assigned to the Organized Crime Investigation Task Force,
testified he began investigating an individual named A.S. in June 2022 on suspicion of
being a mid-level drug trafficker. Through physical and electronic surveillance of A.S.,
Detective Walker identified Raymundo, Jessica, and Ivan as persons of interest. In July
2022, officers observed A.S. conduct a meeting with Raymundo who, at the time, was
operating a 2003 red Ford pickup truck.
{¶ 5} Surveillance of the red pickup truck with Raymundo in the driver’s seat led
detectives to a house at Flint Creek in Dublin where Raymundo parked the truck inside the
garage. Detectives learned that Raymundo lived at the Flint Creek residence with Jessica,
his girlfriend. Through their surveillance, detectives observed an individual make multiple
trips to another residence at Laurel Pine in Dublin.1 Detectives determined Ivan lived at
the Laurel Pine residence with another man, E.G.
{¶ 6} Further surveillance of both the Flint Creek and the Laurel Pine residences
revealed additional vehicles that Detective Walker testified were used by Raymundo, Ivan,
and Jessica: a gray Honda Civic, a GMC Z71, and a newer-model Ford F-150. Detectives
affixed GPS tracking units to those vehicles and learned that the red older-model F-150
truck had made trips to Mexico, then California, and then back to Columbus. Detectives
eventually removed the GPS tracking units for fear the units would be detected or
1 When Detective Walker first testifies about the second residence in Dublin, he states the address as “Flint
Creek.” (Tr. at 15.) Detective Walker’s subsequent testimony in the record refers to the second residence being
located on Laurel Pine, indicating Detective Walker misspoke when he first stated the address of the second
Dublin residence. No. 23AP-98
compromised. Additionally, detectives ceased their physical surveillance of the Flint Creek
and Laurel Pine residences.
{¶ 7} Although detectives had ceased their surveillance of the residences, they
entered the older-model F-150 into a national deconfliction database that logs and tracks
information on investigations occurring throughout the country. The database yielded a
“deconfliction hit” for the red older-model F-150 in which Utah police officers reported they
had stopped, searched, and seized the truck and recovered 49 kilograms of cocaine from
“surreptitious containers” inside the truck. (Tr. at 19-20.) Detective Walker testified that
E.G., the man detectives believed was living with Ivan, was driving the truck in Utah when
it was stopped.
{¶ 8} Following the deconfliction hit, detectives attempted to resume their physical
surveillance of the Flint Creek and Laurel Pine residences. However, when detectives
returned in July 2022, the three co-defendants no longer occupied either of these
residences.
{¶ 9} Detective Walker testified the surveillance operation then switched to
physical surveillance of wire-remitting locations in Columbus. This approach led to
detectives observing Jessica driving the same Honda Civic previously associated with the
group. Detectives followed Jessica to an apartment located at Rosslare Harbour Drive and
subsequently observed both Raymundo and Ivan at that location. Detective Walker
testified that Jessica, Raymundo, and Ivan were all living together at the Rosslare Harbour
location. In mid-December 2022, detectives then resumed GPS surveillance of the vehicles
associated with the three co-defendants: the newer-model Ford F-150, a gray Honda Civic,
and a gray Honda Accord.
{¶ 10} The physical and electronic surveillance led detectives to a self-storage facility
in Fairfield County. Detectives observed Ivan driving the Honda Civic to the storage facility,
and the GPS location indicated the vehicle was stopped “for a period of minutes” in front of
Unit 4281. (Tr. at 24.) On different days of surveillance, Detective Walker said officers
observed Jessica and Ivan going into Unit 5021, which Detective Walker described as a
“shield unit” used to store legitimate items. (Tr. at 24.) Subsequently, Detective Walker
said his team observed Jessica and Raymundo’s vehicle parked in front of Unit 4281. Video No. 23AP-98
surveillance then showed Raymundo exiting the unit and appearing to lock it. Detectives determined Jessica was paying for both storage units.
{¶ 11} On September 20, 2022, Detective Walker obtained search warrants for both storage units and for the Rosslare Harbour apartment. Inside Unit 5021, officers found one rifle. Inside Unit 4281, officers found 18 kilograms of fentanyl, approximately 20,000 compressed fentanyl pills, and “numerous” assault-style rifles and large high-capacity magazines and ammunition. (Tr. at 26.) Officers also found magazines that could not be matched to the firearms inside the storage units. The total value of the amount of drugs seized from the storage unit was “well into the tens of millions of dollars.” (Tr. at 34.) Additionally, Unit 4281 contained two jet skis that officers later learned were used to store and traffic bulk narcotics. Detective Walker said those jet skis had previously been observed at the Laurel Pine residence. Detectives also collected numerous cell phones wrapped in tinfoil from Unit 4281.
{¶ 12} The search of the Rosslare Harbour apartment yielded “numerous fraudulent documents,” including passports and identification cards. (Tr. at 29.) These fraudulent documents contained pictures of Jessica, Raymundo, and Ivan but used different names for each of them. Detectives also recovered “numerous firearms” from what they believed to be Jessica and Raymundo’s room, and they collected additional cell phones and documents related to the red older-model truck seized in Utah from this residence. (Tr. at 29.)
{¶ 13} Subsequent examination of the cell phones officers recovered from execution of the search warrant revealed “numerous videos and photos” that Detective Walker testified showed Jessica, Raymundo, and Ivan “either facilitating bulk -- or drug deals with bulk quantities of narcotics, in addition to videos displaying the counting of bulk narcotics.” (Tr. at 31.) Detective Walker testified 28 phones were recovered from the investigation and, at the time of the bond hearing, officers had been able to go through 24 of the phones. Of those 24 phones, Detective Walker said 15 of the phones contain “some sort of nexus to drug trafficking or smuggling,” and he further testified that through these 15 phones, there was evidence connecting all three of the co-defendants to drug trafficking. (Tr. at 32.) Officers were also able to use the phones to learn how money would be remitted to the No. 23AP-98
[SEGMENT 20]
Sinaloa area of Mexico, and detectives gathered intelligence indicating Jessica was a
member or an associate of the Sinaloa cartel.
{¶ 14} Detective Walker further testified the different colors of the pills and powders
recovered in the storage unit can correlate to manufactures coloring their pills in a way to
mimic a legitimate prescription narcotic pill. He further testified the cell phone videos
revealed an “alarming number” of firearms that the three co-defendants used that were not
recovered in the storage units and that detectives believe are still in Franklin County. (Tr.
at 38.) Detective Walker described the types of weapons seen in the content from the seized
cell phones, stating “there are handguns with Glock switches -- this is a switch in order to
make it a fully automatic handgun -- in addition to short-barrel rifles, 40-millimeter
grenade launchers, in addition to RPG weapons systems.” (Tr. at 38.) Based on the amount
of currency Detective Walker saw moving on the cell phones, he testified he “[a]bsolutely”
had reason to believe the three co-defendants have access to additional currency that could
facilitate flight from the United States if they were released on bond. (Tr. at 41.)
{¶ 15} At the conclusion of the hearing, the trial court denied Ivan, Jessica, and
Raymundo bail while awaiting trial pursuant to R.C. 2937.222. Specifically, the trial court
found the state had demonstrated, by clear and convincing evidence, that the proof is
evident or the presumption great that the three accused committed at least some of the
offenses, that all three co-defendants pose a danger to the community, and that no release
conditions would reasonably assure the safety of the public from the danger posed by Ivan,
Jessica, and Raymundo if they were released on bond. The trial court journalized its
decision in a January 13, 2023 decision and entry. Ivan timely appeals.
II. Assignment of Error
{¶ 16} Ivan assigns the following sole assignment of error for our review:
The trial court did err by ordering [Ivan] held without bond.
III. Discussion
{¶ 17} In his sole assignment of error, Ivan argues the trial court erred when it
ordered him to be held without bond while awaiting trial. More specifically, Ivan asserts
there was not clear and convincing evidence in the record to support the trial court’s
determination that, pursuant to R.C. 2937.222, Ivan is not entitled to bail or bond. No. 23AP-98
{¶ 18} An appellate court reviews a trial court’s decision on a denial of bail pursuant
to R.C. 2937.222 for an abuse of discretion. [CITATION], ¶ 11, citing [CITATION], ¶ 10,
citing [CITATION], ¶ 5. See also [CITATION], ¶ 6 (“the trial court’s order [denying
bail under R.C. 2937.222] will not be reversed absent a showing that the trial court abused
its discretion in finding that the prosecution had met its burden of proof to show that
appellant should be denied bail”).2 An abuse of discretion connotes a decision that is
unreasonable, arbitrary, or unconscionable. [CITATION]. Additionally, an appellate court may find an abuse of discretion where the trial
court “ ‘applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.’ ” [CITATION], ¶ 17, quoting [CITATION], ¶ 15.
{¶ 19} Here, the state moved to hold Ivan without bail or bond. Pursuant to R.C.
2937.222(A), on motion of the state or by its own initiative, a trial court must hold a hearing
to determine whether an accused person charged with certain felony offenses, including
first- and second-degree felony offenses, shall be denied bail. The trial court may not deny
the accused bail unless the trial court finds, by clear and convincing evidence, that: (1) “the
proof is evident or the presumption great that the accused committed the offense,” (2) “the
accused poses a substantial risk of serious physical harm to any person or to the
community,” and (3) “no release conditions will reasonably assure the safety of that person
and the community.” R.C. 2937.222(B). The state bears the burden of proving the statutory
conditions for a denial of bail. R.C. 2937.222(A). “Clear and convincing evidence is that
‘which will produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.’ ” [CITATION], quoting [CITATION], paragraph three of the syllabus.
2 We recognize, as this court did in [CITATION], that Ohio’s appellate districts are divided on the proper
standard of review of a trial court’s denial of bail under R.C. 2937.222, but based on the principles of stare
decisis we will continue to apply the abuse of discretion standard. Id. at ¶ 5, fn. 6, citing [CITATION], ¶ 22-25 (examining standards of review applied by various appellate
courts). No. 23AP-98
{¶ 20} Ivan argues the state failed to demonstrate, by clear and convincing evidence,
any of the three statutory conditions to deny him bail. Thus, we will examine the evidence
presented relative to each of the three statutory conditions for a denial of bail under [CITATION].
A. Proof Evident or Presumption Great that Accused Committed the Offense
{¶ 21} The first condition the state must demonstrate for a denial of bail is that the
proof is evident or the presumption great that the accused committed the offense. [CITATION]. Ivan acknowledges that law enforcement recovered a substantial amount of
drugs when it executed the search warrants. He asserts, however, that while the state may
have put forth clear and convincing evidence of his co-defendants’ involvement in the
offenses, the state failed to present enough evidence that Ivan, specifically, had any access
to the drugs seized in the execution of the search warrant such that the proof is evident or
the presumption great that he committed the offenses. We disagree.
{¶ 22} At the hearing, Detective Walker testified regarding the extensive
investigation into all three of the co-defendants and to Ivan’s involvement in particular.
Specific to Ivan, Detective Walker testified that Ivan lived at the Rosslare Harbour
apartment with Jessica and Raymundo at the time police executed the search warrants,
stating, in response to a direct question about whether Ivan lived with Jessica at that time,
that “all three lived together.” (Tr. at 64.) Inside the Rosslare Harbour apartment, law
enforcement recovered fraudulent documents, including passports and identification
cards, and Detective Walker testified some of those documents had Ivan’s picture paired
with a falsified name. Detective Walker further testified that detectives observed Ivan
driving the Honda Civic to the storage facility and that GPS data indicated the vehicle Ivan
drove was stopped “for a period of minutes” in front of Unit 4281. (Tr. at 24.) The search
of Unit 4281 yielded the bulk quantities of drugs worth “well into the tens of millions of
dollars,” the assault-style weapons, and high-capacity magazines and ammunition, only
some of which could be matched to the weapons found within the storage unit. (Tr. at 34.)
Additionally, Unit 4281 contained two jet skis used to store and traffic bulk narcotics that
Detective Walker testified detectives had previously observed at Ivan’s prior residence on
Laurel Pine. No. 23AP-98
{¶ 23} Further, Detective Walker testified that 15 of the cell phones recovered from
both the storage unit and the Rosslare Harbour apartment contained “some sort of nexus
to drug trafficking or smuggling,” and he specifically testified the cell phones contained
“numerous videos and photos” showing Ivan and his co-defendants “either facilitating bulk
-- or drug deals with bulk quantities of narcotics, in addition to videos displaying the
counting of bulk narcotics.” (Tr. at 31-32.) While the state did not play the surveillance
videos or the cell phone videos during the hearing, Detective Walker described the contents
of those videos, and there is no indication the trial court did not believe Detective Walker’s
testimony. See, e.g., [CITATION], ¶ 18 (testimony at the denial of bail hearing from two detectives was sufficient to establish clear
and convincing evidence related to the first factor of R.C. 2937.222(B), including the
detectives’ testimony about the existence of surveillance video footage of the appellant);
[CITATION], ¶ 8, fn. 1, ¶ 44 (the trial court
had clear and convincing evidence to find that the proof is evident or the presumption great
that the accused committed the offenses where the state could not play a surveillance video
used in the police investigation during the hearing due to technical difficulties but the state
had the detective “describe what was in the videos for the court”); R.C. 2937.222(A) (the
rules of evidence “do not apply to the presentation and consideration of information at the
[denial of bail] hearing”).
{¶ 24} Based on this evidence, the trial court did not abuse its discretion in finding
that the state established by clear and convincing evidence that the proof is evident or the
presumption great that Ivan committed the offenses. See [CITATION], ¶ 21 (even where evidence of an accused’s involvement is
circumstantial, such evidence, if believed, can still constitute clear and convincing evidence
to support the trial court’s conclusion on denial of bail).
B. Substantial Risk of Serious Physical Harm
{¶ 25} The second statutory condition requires the trial court to determine whether
the accused poses a substantial risk of serious physical harm to a specific person or the
community. In making a determination of this second factor, the statute directs what the
court must consider: No. 23AP-98
[SEGMENT 21]
(C) The judge, in determining whether the accused person
described in [R.C. 2937.222(A)] poses a substantial risk of
serious physical harm to any person or to the community and
whether there are conditions of release that will reasonably
assure the safety of that person and the community, shall
consider all available information regarding all of the
following:
(1) The nature and circumstances of the offense charged,
including whether the offense is an offense of violence or
involves alcohol or a drug of abuse;
(2) The weight of the evidence against the accused;
(3) The history and characteristics of the accused, including,
but not limited to, both of the following:
(a) The character, physical and mental condition, family ties,
employment, financial resources, length of residence in the
community, community ties, past conduct, history relating to
drug or alcohol abuse, and criminal history of the accused;
(b) Whether, at the time of the current alleged offense or at the
time of the arrest of the accused, the accused was on probation,
parole, post-release control, or other release pending trial,
sentencing, appeal, or completion of sentence for the
commission of an offense under the laws of this state, another
state, or the United States or under a municipal ordinance.
(4) The nature and seriousness of the danger to any person or
the community that would be posed by the person’s release.
R.C. 2937.222.
{¶ 26} Detective Walker testified about the quantity of drugs seized in the storage
unit, with a value in the tens of millions of dollars, and the cell phone videos showing both
drug trafficking behavior as well as the “alarming number” of firearms believed to still be
in Franklin County that were not recovered by Detective Walker’s task force in the
execution of the search warrant. (Tr. at 38.) Detective Walker described the types of
weapons seen in the content from the seized cell phones, stating “there are handguns with
Glock switches -- this is a switch in order to make it a fully automatic handgun -- in addition
to short-barrel rifles, 40-millimeter grenade launchers, in addition to RPG weapons No. 23AP-98
systems.” (Tr. at 38.) This testimony about the scale of the drug trafficking operation and
the quantity and type of weapons law enforcement officers did not recover is sufficient to
establish, by clear and convincing evidence, that Ivan posed a substantial risk of serious
physical harm to the community. Thus, the trial court did not abuse its discretion in finding
the second statutory condition for a denial of bail.
C. No Release Conditions Will Assure the Safety of the Community
{¶ 27} The third and final statutory condition for the denial of bail is whether there
are any conditions of release that will reasonably assure the safety of the community. As
noted above, R.C. 2937.222(C) specifies what information the trial court must consider in
evaluating the third factor.
{¶ 28} Relative to the third factor, Detective Walker testified that the cell phones
contained information demonstrating the co-defendants were remitting money to the
Sinaloa area of Mexico, and he further testified about the existence of the Sinaloa drug
cartel and Jessica’s known ties to the organization. Based on the amount of currency
Detective Walker saw moving on the cell phones, he testified he “[a]bsolutely” had reason
to believe that all three co-defendants, including Ivan, have access to additional currency
that could facilitate flight from the United States if they were released on bond. (Tr. at 41.)
Even with this testimony, however, the trial court was explicit that it was not basing its
denial of bail decision based on Ivan’s risk of flight. Instead, the trial court explained it was
considering the statutory factors to determine whether any conditions of release could
reasonably assure the safety of the community.
{¶ 29} In considering the safety of the community, the trial court noted the number
and type of weapons constituting the “arsenal” found both in the residence and in the
storage units. (Tr. at 88.) The trial court determined that these weapons, the unaccounted-
for magazines, and Glock switches indicated that no release conditions, including any GPS
monitoring, could reasonably assure the safety of the community. Based on this record, we
find the trial court did not abuse its discretion in determining clear and convincing evidence
established the third statutory factor for a denial of bail. See [CITATION] at ¶ 19-21. No. 23AP-98
D. Conclusion
{¶ 30} Having reviewed the evidence presented at the bond hearing, we find the trial
court did not abuse its discretion in determining the state had established by clear and
convincing evidence that the proof is evident or the presumption great that Ivan committed
the offenses, that Ivan posed a substantial risk of serious physical harm to the community,
and that no release conditions would reasonably assure the safety of the community.
Accordingly, the trial court did not abuse its discretion in ordering Ivan held without bond.
We overrule Ivan’s sole assignment of error.
IV. Disposition
{¶ 31} Based on the foregoing reasons, the trial court did not abuse its discretion in
ordering Ivan to be held without bond pursuant to R.C. 2937.222. Having overruled Ivan’s
sole assignment of error, we affirm the decision and entry of the Franklin County Court of
Common Pleas.
Judgment affirmed.
LELAND, J., concurs.
EDELSTEIN, J., dissents.
____________________
EDELSTEIN, J., dissenting.
{¶ 32} I believe both the majority opinion and the trial court make the same mistake
in finding that general, non-specific evidence presented—largely without distinction—
about all three defendants at a single, combined denial-of-bail hearing is sufficient to deny
Ivan bail under R.C. 2937.222. Because R.C. 2937.222 only permits a trial court to deny a
defendant pre-trial bail if it finds the state presented clear and convincing evidence of all
three statutorily required conditions about that particular defendant, I find the
majority’s analysis—much like the trial court’s—to be contrary to the governing law.
Accordingly, I respectfully dissent.
{¶ 33} The majority accurately recognizes that, under R.C. 2937.222, a trial court
cannot deny bail to a person awaiting trial unless it finds the state established, by clear and
convincing evidence, all three of the following conditions: No. 23AP-98
. “[T]he proof is evident or the presumption great” that the
accused committed the serious felonies with which he is
charged.
. The accused “poses a substantial risk of serious physical
harm to any person or to the community.”
. “[N]o release conditions will reasonably assure the safety of
that person and the community.”
R.C. 2937.222(B). (See Majority at ¶ 19.) And, indeed, it is important to emphasize that a
criminal defendant’s general right to reasonable pre-trial bail is secured by both the Eighth
Amendment to the United States Constitution and Article I, Section 9 of the Ohio
Constitution. See [CITATION].
{¶ 34} It is canonical that “[w]e are * * * duty bound to apply the laws as they are
written.” [CITATION]. See also [CITATION], quoting [CITATION]. Yet, I do not believe the
majority or trial court fully adhere to that fundamental principle when correlating the
evidence presented at the combined hearing for all three defendants to the statutory denial-
of-bail conditions that needed to be proven about Ivan individually.
{¶ 35} On review, it appears the precipice for such error was the decision to conduct
a single, combined denial-of-bail hearing for all three defendants and the manner in which
the sole witness’s testimony was presented. Certainly, efficiency considerations
undoubtedly informed that decision, but I believe the efficacy of the state’s evidence
ultimately suffered because of that choice in this case. Detective Walker testified about the
collective group and described the generalized harm associated with illegal drugs (fentanyl)
and firearms. On the whole, his factual testimony about the codefendants was broad,
vague, and unclear, making it difficult to ascertain which portions related to each particular
codefendant. It is true that some of Detective Walker’s testimony about Jessica and
Raymundo specifically connected them to the charged offenses or otherwise acted as
evidence supporting the state’s denial-of-bail request. But his testimony about Ivan’s
conduct—individually or specifically—is notably wanting on these matters. No. 23AP-98
{¶ 36} Expectedly, then, the trial court’s denial-of-bail analysis was likewise general
and non-specific to any of the three codefendants. And now, on appeal, I believe the
majority engages in an analysis that equally lacks the discernment that is required.
I. Evident Proof or Great Presumption of Guilt
{¶ 37} Ivan was charged with the unlawful possession, trafficking, and manufacture
of drugs. In support of R.C. 2937.222(B)’s first condition—whether “the proof is evident or
the presumption great that the accused committed” the charged offense(s)—the state
presented testimony from [CITATION] about the approximately six-month
investigation into Ivan, Jessica, and Raymundo he and five other detectives conducted.
(See Tr. at 48-49, 55.) His testimony clearly and convincingly established that the three
defendants knew and interacted with each other. (See, e.g., Tr. at 14-16, 21-23.) But none
were charged with violating Ohio’s conspiracy or organized crime laws in their respective
cases below. Thus, proof of their connection to each other has little bearing on the state’s
burden to show evident proof or a great presumption that Ivan committed the drug
trafficking, possession, and illegal manufacture offenses with which he is charged.
{¶ 38} At the hearing, the trial prosecutor posited that [CITATION]’s testimony
clearly and convincingly “explained how each of these defendants are connected to the
drugs that were found and a continuing course of conduct from the apartment that they
were all sharing here in Franklin County, Ohio, back and forth between here and the storage
units in Fairfield County.” (Emphasis added.) (Tr. at 72.) And the trial court ultimately
concluded that the state proved, by clear and convincing evidence, that “these three
accused committed at least some of the offenses at issue in the indictment * * * if not
trafficking, possession.” (Emphasis added.) (Tr. at 82-83.)
{¶ 39} But [CITATION]’s testimony did not specifically describe any conduct by
Ivan that was criminal. [CITATION] acknowledged the task force never conducted a
controlled buy with Ivan and did not claim the detectives ever observed Ivan sell,
manufacture, or possess drugs. (See Tr. at 45.) Furthermore, [CITATION] conceded
the task force did not locate any stash or prep house(s) used by the defendants or otherwise
connected to the charged drug offenses. (Tr. at 55. See also Tr. at 40, 67.) Nor did he claim
to know when, how, or by whom the seized drugs were placed in the storage unit where they
were recovered. (Tr. at 53.) No. 23AP-98
[SEGMENT 22]
{¶ 40} In the absence of any direct evidence that Ivan possessed, trafficked, or
manufactured drugs, then, proof that he committed the charged offenses is commensurate
with the state’s ability to connect Ivan with the evidence collected by detectives from their
search of two storage units—Unit 4281 and Unit 5021—and the Rosslare Harbour
residence. As the majority notes, Unit 5021 was “described as a ‘shield unit’ used to store
legitimate items.” (Majority at ¶ 10, citing [CITATION].) Indeed, barring one rifle, all
contraband and other items of evidentiary value—drugs, firearms, ammunition, and cell
phones wrapped in tinfoil—were recovered from Unit 4281. (See [CITATION].) Law
enforcement also seized fraudulent documents, more firearms, and other incriminating
evidence from the Rosslare Harbour residence. (See [CITATION].)
{¶ 41} Detective Walker’s hearing testimony specifically connected Jessica and
Raymundo to both of the storage units. He described surveillance that showed Jessica and
Raymundo entering Unit 5021 “on different days” and their vehicle parked in front of Unit
4281. ([CITATION].) He also described video surveillance footage that captured Raymundo
“exiting [Unit 4281] and then closing it and appearing to lock it.” ([CITATION].) In addition
to testifying about Jessica and Raymundo accessing these two units, Detective Walker
indicated detectives also located a card linking Jessica to both storage units in her purse
when they searched the Rosslare Harbour residence ([CITATION]) and later determined that
Jessica had been paying for both units ([CITATION].)
{¶ 42} In stark contrast, no evidence suggested either of the storage units were
leased to, paid for, or accessed by Ivan. (See [CITATION].) At most, Detective Walker’s
hearing testimony established that Ivan was observed driving the Honda Civic to the
storage unit facility’s premises. (See [CITATION].) The majority describes Detective Walker
as testifying about observing “Ivan driving the Honda Civic to the storage facility, and the
GPS location indicat[ing] the vehicle was stopped ‘for a period of minutes’ in front of Unit
4281.” (Majority at ¶ 10, quoting [CITATION]. See also Majority at ¶ 22, citing [CITATION].) But
that description is not clearly supported by the testimony on which the majority relies. At
the hearing, Detective Walker explained that detectives “discovered the storage units”
when, during the course of their physical surveillance at the Rosslare Harbour residence,
they observed Ivan operate the Honda Civic and used surveillance (physical and electronic) No. 23AP-98
to track him to the storage unit facility. (See Tr. at 23.) The following testimony was elicited
as to the particular storage units:
[Prosecutor]: Did you observe a continuing action of
the defendants going from Franklin
County into Fairfield County and back?
[Det. Walker]: Yes.
[Prosecutor]: And was that from both physical
surveillance and GPS surveillance?
[Det. Walker]: Yes.
[Prosecutor]: Okay. So you told us that you observed
Ivan going [to the storage unit facility].
Did you also observe Raymundo
and [Jessica] going to those storage
units, as well?
[Det. Walker]: So we observed the GPS location had
stopped right in front of Unit 4281 for a
period of minutes. Further, on
different days of surveillance, video-based
surveillance, in addition to physical-based
surveillance, [we] observed [Jessica] and
[Raymundo] going in Unit 5021 * * *.
And then from there we observed their
vehicle park in front of Unit 4281. * * *.
(Emphasis added.) (Tr. at 23-24.) Of note, detectives installed GPS tracking units on at
least three vehicles affiliated with the group, including the Honda Civic. (Tr. at 22-23.) But
in the portion of the testimony cited by the majority, Detective Walker did not specify which
vehicle he observed stop in front of Unit 4281, much less that Ivan was the driver at that
time. (See Tr. at 23-24.) Even assuming it was the Honda Civic, I do not believe it is
appropriate to infer Ivan was the driver since Detective Walker did not explicitly and clearly
testify that he was, and Detective Walker’s testimony indicated that Jessica was historically
known to operate that vehicle. (See, e.g., Tr. at 21-24.)
{¶ 43} Furthermore, Detective Walker conceded the detectives did not know who
placed or accessed the drugs, guns, or any other items in the storage units from which they No. 23AP-98
were recovered. (See Tr. at 53.) It is true, as the majority notes, that Detective Walker
testified about recovering from “the storage units” two jet skis that “were utilized to store
and traffic bulk narcotics.” ([CITATION] at ¶ 11. See Tr. at 26-27.) And it is true Detective
Walker testified that these were the same two jet skis detectives previously observed at the
Laurel Pine Lane residence where Ivan, E.G. (who was driving the red truck when it was
stopped in Utah), and others lived. (Id. See also [CITATION] at ¶ 7; Tr. at 15, 18-20.) But,
Detective Walker did not indicate which storage unit these jet skis were in, how they got
there, who owned them, who purchased them, or who used them. (See Tr. at 26-27.) Nor
did he claim Ivan was ever seen interacting with the two jet skis. Thus, I do not believe the
record before this court is sufficient to connect Ivan to the recovered jet skis.
{¶ 44} Evidence connecting Ivan to the Rosslare Harbour residence is equally scant.
At the denial-of-bail hearing, Detective Walker initially testified about observing Ivan at
the Rosslare Harbour apartment and described only Jessica and Raymundo as residing
at that address. (See Tr. at 22, 29.) Although Detective Walker later claimed on redirect
examination that “all three lived together” at the time the search warrants were executed,
he provided no information regarding the factual basis for that belief. (See Tr. at 64.)
{¶ 45} Notable in that regard is Detective Walker’s testimony about seizing
“numerous firearms from what [detectives] believed to be Raymundo Mesa and Jessica
Toscano’s room[]” at the Rosslare Harbour apartment. (Tr. at 29.) But, he did not testify
about any items recovered from “Ivan’s room” or, for that matter, suggest that Ivan had a
room or any personal effects at the residence. Detective Walker also did not claim that
Ivan’s name was on the lease for the apartment or that he paid any rent to live there. Thus,
without more, I think it is difficult to conclude Ivan lived at the Rosslare Harbour residence.
But, even assuming he did, no drugs were recovered from that location anyway.
{¶ 46} In a similar vein, Detective Walker testified that detectives recovered
“numerous fraudulent documents,” including passports and identification cards, when they
searched the Rosslare Harbour residence. (Tr. at 29.) In its analysis of the first denial-of-
bail condition, the majority notes that “Detective Walker testified some of those documents
had Ivan’s picture paired with a falsified name.” ([CITATION] at ¶ 22. See also id. at ¶ 12.) The
significance of that testimony is unclear, though, because the majority opinion does not
connect the evidence presented about fraudulent identification document(s) with Ivan’s No. 23AP-98
face to the drug offenses with which Ivan was charged. See R.C. 2937.222(B). And, in fact,
because the trial prosecutor did not ask Detective Walker to explain how, based on his
experience and knowledge, fraudulent identification documents can be relevant evidence
of drug crimes, the record before this court does not contain any evidentiary basis to make
that connection. (Compare [CITATION].)
{¶ 47} Moreover, since Detective Walker’s description of the seized fraudulent
documents was vague, general, and largely non-specific (at least as to Ivan), I see no basis
to presume that more than one of the documents seized from the Rosslare Harbour
residence contained Ivan’s face. (See [CITATION]. Compare Majority at ¶ 12.) Indeed,
while Detective Walker specifically testified about Jessica and Raymundo having altered
passports that appeared legitimate ([CITATION]), he gave no indication as to the quantity,
quality, or type of “fraudulent IDs and documents” detectives seized that pertained to Ivan
(see [CITATION]). And, although Detective Walker also described “information
from the [seized] phones” indicating “that Ivan has numerous fake IDs or fictitious ID[s],”
Detective Walker did not explain exactly what that “information” was—e.g., photographs of
or messages concerning Ivan’s false identification documents. (Emphasis added.) ([CITATION].)
{¶ 48} Based on my review of the record, I do not see a tenable way to view Detective
Walker’s testimony about any fraudulent documents pertaining to Ivan—seized from the
Rosslare Harbour residence or suggested by content on the cell phones—as having any
appreciable evidentiary value on whether “the proof is evident or the presumption great
that” Ivan committed the drug offenses with which he is charged. See R.C. 2937.222(B).
{¶ 49} The majority also relies on Detective Walker’s testimony about the evidence
subsequently discovered on 15 of the 28 phones recovered from Unit 4281 and the Rosslare
Harbour residence in its analysis. (Majority at ¶ 23, citing [CITATION]. See also Majority
at ¶ 13-14.) More precisely, Detective Walker testified that these 15 phones “contain[ed]
some sort of nexus to drug trafficking or smuggling” ([CITATION]) and “a small insight into
their complex network of money laundering” ([CITATION]). It is true that Detective Walker
answered in the affirmative when the trial prosecutor asked if he saw “evidence of all three
defendants throughout those phones [related to drug trafficking].” ([CITATION].) But
Detective Walker provided no specific information about any content on the phones that No. 23AP-98
[SEGMENT 23]
could be connected to Ivan in particular. Indeed, Detective Walker did not describe Ivan’s
actions or statements in any of the extracted media items or messages found on any of those
15 phones, when any such content was created or sent, the type(s) of drugs observed in
content concerning Ivan, or whether the Ivan-specific content even related to the offenses
charged in this case. (Compare Tr. at 32) (describing cell phone content depicting
“[Raymundo] and others having conversations into educating their customers on how to
manufacture or cut fentanyl and just on drug trafficking”).
{¶ 50} Clearly connecting Ivan with any drug trafficking, possession, and/or
manufacturing content extracted from the seized phones is difficult because Detective
Walker gave sweeping and vague descriptions about that content and generally attributed
all of it to the collective group. (See Tr. at 31-33.) Nonetheless, the majority notes that
Detective Walker broadly described “ ‘numerous videos and photos’ showing Ivan and his
co-defendants ‘either facilitating bulk -- or drug deals with bulk quantities of narcotics, in
addition to videos displaying the counting of bulk narcotics.’ ” (See Majority at ¶ 23, quoting
Tr. at 31-32.) But none of these videos or photographs were presented as evidence at the
denial-of-bail hearing, or even described in any appreciable defendant-specific detail.
{¶ 51} While I generally agree with the proposition that the testimony about the
existence of these media items could be sufficient to establish clear and convincing evidence
related to the first factor (see Majority at ¶ 23), I do not agree with the majority’s finding
that Detective Walker’s testimony was sufficient in this instance. Further, the two cases on
which the majority decision relies are largely inapposite because neither involved a single,
combined denial-of-bail hearing for multiple defendants. (Compare Majority at ¶ 23, citing
[CITATION] and [CITATION].)
{¶ 52} Indeed, the issue is not the veracity of Detective Walker’s testimony about
the contents of the phones—which I assume to be true. (See Majority at ¶ 23) (noting “there
is no indication the trial court did not believe Detective Walker’s testimony”). It is, instead,
both the overbreadth and non-specificity of his descriptions about the relevant items
extracted from the phones on which the state, the trial court, and now the majority rely to
conclude there is “clear and convincing evidence that the proof is evident or the
presumption great” that Ivan committed the charged offenses. For instance, facilitating No. 23AP-98
bulk drug deals and counting bulk narcotics are two separate activities. And Detective
Walker did not specify the type of narcotics observed in connection to either activity, much
less give any specifics as to when these media items were created or what exactly was
depicted. (See Tr. at 31-32.) This is significant because all of Ivan’s drug charges pertain to
the trafficking, possession, and manufacture of fentanyl. So, for example, if the phones
depicted Ivan counting bulk quantities of some other type of narcotic over ten years ago—
where the statute of limitations for all drug-related felony charges is six years, subject to
tolling, see R.C. 2901.13(A)(1)(a)—then such evidence would be insufficient to satisfy the
first condition of R.C. 2937.222.
{¶ 53} When the trial court analyzed R.C. 2937.222(B)’s first condition—evident
proof or great presumption of guilt—it did not parse out the relevant testimony as it related
to each defendant individually. Instead, the trial court considered the testimony presented
about the group, collectively, and found, without distinction, that it clearly and convincingly
established each defendant committed some of the charged offenses. (Tr. at 82-85.) The
majority opinion’s analysis similarly lacks the circumspection I believe both the Ohio
Constitution and the denial-of-bail statute require. Concluding otherwise undermines the
plain language of the statute and the bedrock principles of our criminal justice system.
{¶ 54} Because the trial court held a single denial-of-bail hearing for three
defendants and the state’s sole witness testified generally about the actions of the collective
group with little particularity as to Ivan’s involvement, I do not believe the trial court judge
was in the position to—nor did he—adequately segregate the evidence applicable to Ivan
and separately consider whether that evidence clearly and convincingly established that
“the proof is evident or the presumption is great” that Ivan committed the offenses with
which he was charged. In light of my concerns about the spill-over effect caused by the
process below and based on my review of the record, I would conclude that, under the facts
and circumstances of this case, the trial court’s conclusion as to the first condition did not
comply with the dictates of R.C. 2937.222(B).
{¶ 55} Even assuming, as the majority contends, the evidence was sufficient as to
the first factor, however, I would still find that the trial court’s decision to deny Ivan pre-
trial bail was nonetheless contrary to law. This is because, as described below, the trial
court failed to properly consider whether Detective Walker’s hearing testimony clearly and No. 23AP-98
convincingly established that Ivan posed a substantial risk of serious physical harm to the
community and, if so, whether any release conditions could reasonably assure the
community’s safety.
II. Substantial Risk of Serious Physical Harm to the Community
{¶ 56} In support of R.C. 2937.222(B)’s second condition—whether each defendant
posed a “substantial risk of serious physical harm to any person or to the community”—the
trial prosecutor elicited testimony from Detective Walker describing the general danger
posed by the unlawful use of fentanyl (particularly in the form of pills manufactured by drug
traffickers) and firearms. (See Tr. at 35-38.) In closing arguments, the trial prosecutor
broadly noted that drug trafficking and dealing “often result[] in firearm offenses” and
contended that “these defendants certainly have the means to access those types of
firearms that are, quite frankly, killing this community, along with the drugs that are killing
the other parts of this community.” (Emphasis added.) (Tr. at 72-73.) Of note, the state
did not allege that any of the three defendants posed any danger to any particular person.
{¶ 57} In addressing this condition, the trial court found the state’s contention “that
there’s a danger that these three individuals will continue the distribution of drugs
pending their pretrial release[]” to be “kind of tenuous” and opined that such concerns
“could also be ameliorated with pretrial conditions.” (Emphasis added.) (Tr. at 86-87.)
And, again, detectives did not claim to have observed Ivan sell, manufacture, or possess
drugs at any point during their investigation.
{¶ 58} The state also elicited testimony from Detective Walker about the general
danger firearms pose to the community and his belief that some firearms associated with
the group may not be accounted for. (See Tr. at 26, 37-38.) Detective Walker told the trial
court that detectives were unable to match some of the magazines recovered from Unit 4281
with the “numerous firearms” they recovered from that storage unit, the single Browning
rifle seized from Unit 5021, or the “numerous firearms” found in Jessica and Raymundo’s
room at the Rosslare Harbour apartment. (See Tr. at 26, 29, 38.) In closing, the state
contended that “[t]he firearms that were found also pose a risk to the community[,]” even
though Detective Walker’s testimony established that any firearm found was seized by the
police. (Compare Tr. at 72, with Tr. at 26-29, 59.) Citing the general notion that “drug
trafficking, drug dealing often results in firearm offenses” (it did not here), the trial No. 23AP-98
prosecutor also posited that “these defendants certainly have the means to access those
types of firearms that are, quite frankly, killing the community.” (Emphasis added.) (Tr.
at 72-73.) But the state did not present any concrete evidence to suggest Ivan had access to
any firearms—much less a risk he would use one.
{¶ 59} My review of the record compels me to conclude that the trial court’s decision
to deny Ivan’s bail was most glaringly wrong because the state did not present any
evidence at the hearing to support the finding that Ivan “pose[d] a substantial risk of
serious physical harm to any person or to the community.” See [CITATION]. Although [CITATION] permitted the trial court to consider Ivan’s history and
characteristics when it evaluated whether he posed a substantial risk of serious physical
harm to the community, the state presented no relevant information about him—e.g., prior
arrests, prior bad acts, other pending charges—at the hearing. Certainly, a plain reading of
the denial-of-bail statute confirms that the general (and often emphasized) nexus between
drugs and guns cannot, alone, establish the evidentiary support the second condition
requires. Indeed, the critical calculus is not that certain types of offenses are thought to be
indicative of firearms possession (or even use), but, instead, whether evidence presented
by the state about a particular defendant at the denial-of-bail hearing sufficiently
suggests a “substantial risk” that the particular defendant will cause “serious physical
harm” to the community or another person if released on bond prior to trial.
{¶ 60} Therein lies the fault, in my opinion, with the analysis below. The trial court
found Detective Walker’s testimony about the unaccounted-for firearms to be compelling
and concluded the state carried its burden in establishing a danger to the community if
“these three are released” on bond while awaiting trial. (Emphasis added.) (Tr. at 87.)
The trial court explained that its finding was “based entirely upon * * * [the] arsenal that
was found at the residence and the fact that [testimony] also indicates unaccounted-for
guns.” (Tr. at 87-88.) More precisely, the trial court cited testimony about the magazines
recovered from Unit 4281 “that didn’t have a partner[]” and expressed concern about
“Glock switches” that were not recovered but were instead indicated in “videos and photos
from their phones” observed by detectives. (Tr. at 88. See Tr. at 38, 67-68.) Though, of
note, Detective Walker did not claim any of the three defendants were depicted in videos or
photos possessing any of the firearms he described seeing in the media items extracted from No. 23AP-98
[SEGMENT 24]
the cell phones. (See Tr. at 38.) Ultimately, the trial court pronounced that “the size and
the type of the weapons * * * found in the residence, the fact that * * * there are
unaccounted-for weapons * * * [was] sufficient for me to raise the danger issue.” (Tr. at
88.)
{¶ 61} Though its contemplation of the matter is brief, the majority similarly
concludes that Detective Walker’s “testimony about the scale of the drug trafficking
operation and the quantity and type of weapons law enforcement officers did not recover is
sufficient to establish, by clear and convincing evidence, that Ivan posed a substantial risk
of serious physical harm to the community.” (Majority at ¶ 26.)
{¶ 62} One flaw in both the majority opinion and the trial court’s decision is that
both fail to appreciate the meaning of a key operative phrase in the statute: “substantial
risk.” To satisfy the second denial-of-bail condition, the state was required to show—and
the trial court find—“by clear and convincing evidence that [Ivan] poses a substantial
risk of serious physical harm * * * to the community.” (Emphasis added.) R.C.
2937.222(A), (B). “Substantial risk” is defined as “a strong possibility, as contrasted with a
remote or significant possibility, that a certain result may occur or that certain
circumstances may exist.” R.C. 2901.01(A)(8).
{¶ 63} The trial court found the firearms-related evidence sufficiently “raise[d] the
danger issue” (Tr. at 88), but such finding is not equivalent to the “substantial risk of serious
physical harm” finding R.C. 2937.222(B) requires. Even if it was, nothing in the record
established that Ivan ever had the ability to access the numerous firearms recovered, or the
seized unmatched magazines, or the unrecovered firearms that matched that ammunition.
(See Tr. at 26, 29.) Furthermore, Detective Walker conceded that he did not have any DNA
evidence linking the seized firearms from either the storage unit or residence to Ivan. (See
Tr. at 59-60.) And, nothing in the record suggests detectives ever specifically observed Ivan
possess any firearms, including in videos and photos extracted from the phones seized by
the police. Furthermore, and quite significantly, the record does not suggest Ivan had a
history of being violent toward others.
{¶ 64} Thus, the conclusion reached by both the trial court and the majority—that
guns, ammunition, and drugs not attributable to Ivan are sufficient to establish, by clear
and convincing evidence, that Ivan posed a substantial risk of serious physical harm to the No. 23AP-98
community—is analytically puzzling. This is because neither the trial court nor the majority
opinion meaningfully engage with the evidence presented at the denial-of-bailing hearing
or otherwise explain how that evidence meets what the controlling statute requires.
{¶ 65} The majority also fails to consider the improper inference stacking on which
both its and the trial court’s analysis rely. It is well-established in Ohio that “an inference
based solely and entirely upon another inference, unsupported by any additional fact or
another inference from other facts, is an inference on an inference and may not be indulged
in by [the trier of fact].” [CITATION], paragraph one of the syllabus. For this reason, “[a] finding of substantial risk may not be
based on an inference upon an inference in order to transform a speculative risk into a
substantial risk.” (Internal quotations and citations omitted.) [CITATION], ¶ 27 (1st Dist.).
{¶ 66} Essentially, the position of the trial court and the majority is that because
some unmatched magazines were found in the storage unit and some of the unattributed
phones recovered from the storage unit contained photographs of guns that were taken,
received, or sent at some point in time by some unidentified person(s), the state’s burden
as to Ivan is met. I disagree.
{¶ 67} Equally tenuous is the majority’s reasoning that Ivan poses a substantial risk
of serious physical harm to the community because he is affiliated with people who are
linked to firearms and a large-scale drug trafficking operation. (See Majority at ¶ 26.) The
phones showed Raymundo counting large amounts of money (Tr. at 39) and educating
customers on drug trafficking (see Tr. at 32). Detective Walker testified that information
provided by the federal drug authorities suggested Jessica had direct ties to the cartel. (Tr.
at 66.) He also described Raymundo and Jessica’s prior charges in a 2018 case with similar
facts. (Tr. at 39.) Noticeably absent from both Detective Walker’s testimony and the
majority opinion, however, is a recitation of particular evidence that supports finding Ivan
poses a substantial risk of serious physical harm to the community. That is not to say that
such evidence does not exist, but rather, that such individualized evidence about Ivan was
not presented to the trial court at the combined denial-of-bail hearing.
{¶ 68} It goes without saying that firearms always pose an inherent risk of serious
physical harm to the community. But, while the state may have presented sufficient No. 23AP-98
evidence to create some speculative risk posed by the existence of unaccounted-for
firearms, Glock switches, and high-capacity magazines that some or all of the codefendants
might be able to access, it is logically untenable to say that Detective Walker’s testimony
created a “strong possibility” that Ivan would cause “serious physical harm” to the
community. But, even more importantly, concluding otherwise would require the stacking
of multiple inferences upon each other, which is legally impermissible.
{¶ 69} Indeed, it could be appropriate to infer from the unmatched magazines seized
in Unit 4281 that unaccounted-for firearms exist. But the trial court’s finding requires the
stacking of additional inferences upon that inference: that Ivan is aware of the unrecovered
firearms, knows where they are located, can get access to them, and will use them. (See Tr.
at 87-89.) Even assuming that Ivan had access to the locations where firearms and
unmatched magazines were seized and setting aside the impermissible inference-stacking
issue, the trial court’s analysis still did not comply with the dictates of the governing statute.
That is to say, the trial court failed to evaluate whether any evidence clearly and
convincingly established a “strong possibility” that Ivan, specifically, would cause serious
physical harm to the community. The majority opinion fails to offer a convincing
explanation of how that failure did not violate R.C. 2937.222(B). And the majority does not
articulate its rationale for finding that Detective Walker’s testimony supports the specific
finding the statute requires in order to deny Ivan pre-trial bail.
{¶ 70} Because the state presented no evidence suggesting Ivan had access to these
unaccounted-for guns and failed to otherwise prove, by clear and convincing evidence, that
Ivan posed a substantial risk of serious physical harm to the community, I would find the
trial court’s denial of pre-trial bail in this case was contrary to law and unreasonable.
III. No Release Conditions Will Assure the Safety of the Community
{¶ 71} R.C. 2937.222(B)’s third condition required the trial court to consider
whether, if the accused posed a substantial risk of serious physical harm to any person or
the community, the state proved “by clear and convincing evidence that no release
conditions will reasonably assure the safety of that person and the community.” Again, the
state did not claim any of the three defendants posed any risk of harm to any specific
person. Instead, it generally cited to the harm drugs, cartels, and firearms can inflict upon
a community. No. 23AP-98
{¶ 72} Because I do not believe the state presented sufficient evidence to establish,
clearly and convincingly, that Ivan, specifically, posed a substantial risk of serious physical
harm to the community, addressing the third condition of the denial-of-bail statute is
unnecessary. However, given the disposition of this case and the process below, I believe it
is prudent to do so.
{¶ 73} At the hearing, the state did not explicitly argue there were no conditions of
release that would “reasonably assure the safety of * * * the community[]” from any
“substantial risk of serious physical harm” posed by Ivan. (See Tr. at 72-75.) And Detective
Walker’s hearing testimony did not directly relate to this issue either. Instead of focusing
on whether pre-trial conditions would reasonably assure the safety of the community,
as required by R.C. 2937.222(A) and (B), the state instead presented evidence and
arguments to support its contention that no pre-trial conditions would reasonably assure
the appearance of the three defendants at their trials—i.e., flight risk. (See Tr. at 38-
41, 73-74.)
{¶ 74} The trial court found the state’s evidence sufficiently established that all three
defendants presented a substantial flight risk—a general bond consideration in all criminal
cases. In support of this finding, the trial court cited to “ties to Mexico and other states for
all three defendants; California and Utah.” (Tr. at 85.) Because Ivan cannot be clearly
connected to the red truck—described as making trips to Mexico, California, and Utah (Tr.
at 16-20)—I cannot say the record supports this finding. Other evidence regarding Ivan’s
[SEGMENT 25]
3 Historically in Ohio, the “process of assessing bail [has been] governed by Crim.R. 46.” See [CITATION] at ¶ 20. Among other things, Crim.R. 46 permitted courts to consider flight risk when setting a
defendant’s pre-trial bail. See id. at ¶ 27, quoting Crim.R. 46(C). In January 2022, the Supreme Court held in
[CITATION] that a trial court could not consider a defendant’s threat to public safety when setting the cash amount
of bail. See id. at ¶ 33-34. In response, the Ohio General Assembly put forth a constitutional amendment that
explicitly overruled [CITATION]'s holding and, more broadly, eliminated the Supreme Court’s authority to set any
bail procedures through rule. See Ballotpedia, Ohio Issue 1, Determining Bail Amount Based on Public Safety
Amendment (2022), https://ballotpedia.org/Ohio_Issue_1,_Determining_Bail_Amount_Based_on_
Public_Safety_Amendment_(2022) (accessed Dec. 1, 2023). Voters approved that amendment in November
2022. See, e.g., Court News Ohio, Practice and Procedure Rule Proposals Filed with General Assembly,
https://www.courtnewsohio.gov/happening/2023/PracticeProcedureAmend_042823.asp (accessed Dec. 1,
2023). Based on that amendment’s passage, the Supreme Court approved a repeal of Crim.R. 46, which took
effect on July 1, 2023. See id. See also Supreme Court of Ohio, Final Rule Amendments,
https://www.supremecourt.ohio.gov/ruleamendments/archive.aspx (accessed Dec. 1, 2023). The Ohio
legislature recodified Crim.R. 46’s bail procedures by enacting R.C. 2937.011, which took effect on June 30,
2023. No. 23AP-98
ties to Mexico is likewise wanting. (See Tr. at 39-40.) The trial court’s flight-risk finding
also relied on evidence of a “well-financed operation.” (See Tr. at 85.) But, only Jessica was
specifically described as “a member or associate of the Sinaloa Cartel.” (Tr. at 34. See also
Tr. at 66.) And, only $2,100 in cash was recovered when the storage units and residence
were searched. (See Tr. at 40, 55, 66.) Without more, the record does not establish that
Ivan had access to any significant amount of money. Additionally, the trial court generally
referenced “the confiscation of fake passports and IDs in the place of residence.” (See Tr.
at 85.) Though, as already noted, the record does not indicate the quantity, quality, or type
of “fraudulent IDs and documents” detectives seized that pertained to Ivan.4 (See Tr. at 29-
31, 39-40.) The trial court also cited to the fact that “they moved apartments at least once
during the investigation[]” to support its finding that all three defendants posed a flight
risk. (Tr. at 85.) But, while the circumstances of the move may invoke suspicion generally,
I do not believe moving within the same county once over a six-month timeframe is
inherently indicative of a flight risk.
{¶ 75} The majority opinion generally echoes these same findings, but also
acknowledges the trial court’s explicit pronouncement that it could not deny pre-trial bond
on the basis of flight-risk concerns alone. (See Majority at ¶ 28. See Tr. at 81, 86.) Indeed,
the Ohio Supreme Court recently recognized that flight risk concerns “can be addressed by
other means, such as a daily reporting requirement to a probation officer and electronic
monitoring.” [CITATION] at ¶ 32, overruled on other grounds by constitutional
amendment. But to deny Ivan the right to pre-trial bond entirely, the record must contain
sufficient evidence from which the trial court could form a firm belief or conviction that no
release conditions will reasonably assure the safety of the community–not Ivan’s
attendance in court. R.C. 2937.222(C). See [CITATION], ¶ 16, citing [CITATION], 272
(1990) (“The sole purpose of bail is to ensure a person’s attendance in court.”).
{¶ 76} In finding the state’s evidence satisfied the third denial-of-bail condition, the
trial court simply stated it did not “believe any release conditions would reasonably assure
4 In addition to fleeing to avoid prosecution, it is worth noting that there are other reasons—e.g.,
undocumented status, underage purchase of age-restricted items, financial crimes—why a person may have
fraudulent identification documents. No. 23AP-98
the safety of the public from those [unaccounted-for] weapons.” (See Tr. at 88.) But even presuming the trial court’s finding that Ivan presented a substantial flight risk was sufficiently supported by the record—as discussed above, I do not believe that it was—I would nonetheless find the trial court’s analysis of the third condition failed to comply with the dictates of R.C. 2937.222(B). That is true for three reasons.
{¶ 77} First, the state presented no evidence on whether any pre-trial conditions could reasonably assure the safety of the community if Ivan were released on bail. Thus, the trial court had no evidentiary basis to find there were not. See R.C. 2937.222(A), (B). See also [CITATION]. And, of note, the majority opinion does not claim otherwise. (See Majority at ¶ 27-29.) Evidence suggesting that no bond conditions could reasonably assure a defendant’s appearance at trial is not commensurate with proof that the community’s safety could not reasonably be assured by any release conditions.
{¶ 78} Second, the trial court’s finding relied on evidence that could not be specifically connected to Ivan. After finding the “size and type” of the weapons recovered and the speculative evidence about the unaccounted-for weapons was “sufficient * * * to raise the danger issue[,]” the trial court pronounced the following:
I’m also going to find that because that is the issue, it’s not a
question of GPS. It’s not a question of maintaining their
location. I don’t believe any release conditions would
reasonably assure the safety of the public from those weapons.
So that being said, I find that the State has carried its burden in
this no-bond motion.
(Tr. at 88.)
{¶ 79} Fatal to such finding, however, is the absence of any evidence in the record connecting Ivan to these firearms, as discussed above. And, even assuming he had the ability to access the unaccounted-for firearms—or, for that matter, any of the millions of guns lawfully and unlawfully possessed by civilians in this country5—the state presented no specific evidence at the hearing to suggest, much less clearly and convincingly prove, that
5 See Jennifer Mascia and Chip Brownlee, How Many Guns Are Circulating in the U.S.?, https://www.thetrace.org/2023/03/guns-america-data-atf-total (accessed Dec. 1, 2023). No. 23AP-98
there was a “strong possibility” Ivan would access and use them. Surely, the general
existence of other firearms in the world cannot be sufficient to establish the clear-and-
convincing standard required by R.C. 2937.222(B).
{¶ 80} Finally, neither the trial court nor the majority opinion meaningfully consider
whether any pre-trial conditions other than GPS monitoring would reasonably assure
the safety of the community if Ivan were released on bail while awaiting trial. For instance,
the trial court did not evaluate whether house arrest or other pre-trial conditions would
reasonably protect the community from the possibility that Ivan might access and use guns.
Although the state elicited testimony from Detective Walker about Jessica and Raymundo’s
prior trafficking charges and flight to Mexico after being released on bail, Jessica’s
suspected cartel affiliation, and the suspected solvency of the cartel (see Tr. at 31-34, 39,
65-66), Detective Walker did not testify about Ivan’s prior criminal history (if any) or
otherwise claim Ivan was a member of the cartel.
{¶ 81} Like the trial court, the majority does not engage in an analysis as to whether
any conditions would keep the community safe. Instead, the majority confuses the fact that
Ivan might be a flight risk—which is a standard bond consideration, but not a basis for
denying bond under R.C. 2937.222—with what the statute’s third no-bond condition
actually requires. The majority cites as support evidence suggesting Ivan would have access
to “additional currency that could facilitate flight from the United States if [he was] released
on bond.” (Majority at ¶ 28.) But the majority does not explain how its concern that no
bond conditions would reasonably assure Ivan’s presence at trial is relevant to the
determination of whether any release conditions would reasonably assure the safety of
the community. Instead of engaging in that analysis, the majority—like the trial court—
then concludes that the large quantities of both the seized and unaccounted-for firearms
somehow “indicate[s] that no release conditions * * * could reasonably assure the safety of
the community[]” from Ivan, notwithstanding the absence of any evidence suggesting Ivan
had, could, or would ever possess, use, or otherwise come into contact with such weapons.
(See Majority at ¶ 29.)
{¶ 82} Before denying Ivan bail, the trial court was required to find, by clear and
convincing evidence, that no release conditions would reasonably assure the safety of the
community. R.C. 2937.222(B). However, nothing in the record suggests it meaningfully No. 23AP-98
[SEGMENT 26]
considered whether any condition other than GPS monitoring would suffice or relied on
evidence specific to Ivan when it concluded there was not.
{¶ 83} It is not my position that the state cannot meet the requirements of the third
condition, but, rather, that the trial court’s analysis and findings did not adhere to what the
statute requires. As such, I would find the trial court failed to comply with R.C. 2937.222(B)
when it analyzed the third condition supporting the denial of bail.
IV. Conclusion
{¶ 84} Because I do not find the record before this court contains clear and
convincing evidence of all three conditions required to deny Ivan bail under R.C. 2937.222,
I would sustain the sole assignment of error, reverse the trial court’s January 13, 2023
judgment, and remand this matter for further proceedings consistent with the governing
statute and the Ohio Constitution.
_________________________
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as Vacheresse v. Paulchel, 2023-Ohio-3226.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Theresa L. Vacheresse, :
Plaintiff-Appellant, :
No. 22AP-583
v. : (C.P.C. No. 20DR-0244)
Ronnie A. Paulchel, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 12, 2023
On brief: Smith, Meier & Webb, LPA, and Mark D. Webb for
appellant. Argued: Mark D. Webb.
On brief: Mary C. Ansbro for appellee. Argued: Mary C.
Ansbro.
APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relations
EDELSTEIN, J.
{¶ 1} Plaintiff-appellant, Theresa L. Vacheresse, appeals from the August 31, 2022
judgment entry and final divorce decree of the Franklin County Court of Common Pleas,
Division of Domestic Relations. On appeal, Ms. Vacheresse takes issue with the trial court’s
division of marital assets and valuation of marital real estate. For the following reasons, we
affirm.
I. FACTS AND PROCEDURAL OVERVIEW
{¶ 2} Ms. Vacheresse and defendant-appellee, Ronnie A. Paulchel, were married in
2002. No children were born or adopted as issue of the marriage. Because they were
married later in life, the parties brought established careers, assets, and debts to the
No. 22AP-583 2
marriage. During their marriage, the parties also accumulated significant assets, including
three residences, two businesses, several motor vehicles, bank accounts, and airline miles.
{¶ 3} Prior to and during their marriage, Ms. Vacheresse worked for Mr. Paulchel
at the Good Feet franchise store (LivWell LLC) he owned before they were wed. During
their marriage, the parties created two new business entities together, LivWell II, LLC and
LivWell III, LLC, whose sole assets are likewise franchises of Good Feet stores. Although
Ms. Vacheresse had a doctorate of podiatric medicine, she was not working in that capacity
during the parties’ relationship and marriage.
{¶ 4} In 2020, Ms. Vacheresse filed a complaint for divorce. Two weeks later, Mr.
Paulchel filed his answer and counterclaim. Although many contested matters arose during
the pendency of litigation in the court below, most are not relevant to our determination of
the issues before us. Suffice it to say the divorce proceedings were heavily litigated and not
particularly amicable.
{¶ 5} The trial court held a five-day divorce trial in November/December 2021. As
part of that trial, the parties filed joint stipulations on November 17, 2021, which were
accepted by the trial court and admitted into the record. Among other things, the parties
agreed on the values of many assets and the division of some assets. At trial, both parties
testified extensively about their various assets and debts. Mr. Paulchel also presented
testimony from Kathee Ingram, his business accountant, and Michael Crolius, his business
organizer and friend. After the trial concluded, the parties submitted written closing
arguments and proposed decrees of divorce.
{¶ 6} On August 31, 2022, the trial court issued a decision with findings of fact and
conclusions of law on the various issues contested by the parties. In relevant part, the trial
court ordered that Mr. Paulchel retain his brokerage accounts and IRA accounts—valued at
approximately $1,434,136—and Ms. Vacheresse retain her IRA account of $26,014. (Aug.
31, 2022 Divorce Decree at 7-8, 18.)
{¶ 7} The trial court also ordered the real estate located at 855 W. Coshocton Street
in Johnstown, Ohio be sold and the parties equally divide the net proceeds of its sale.
(Divorce Decree at 17.) In the alternative, the trial court afforded Mr. Paulchel the option
to refinance the home and buy out Ms. Vacheresse’s portion of her equity in the home.
(Divorce Decree at 17.) At trial, the parties disagreed on the value of this asset, with each
No. 22AP-583 3
testifying as to their own estimations of its value.1 (Divorce Decree at 4.) Ms. Vacheresse
opined its value was $1,000,000 at the time of trial (Nov. 18, 2021 Trial Tr. Vol. II at 94;
Nov. 30, 2021 Trial Tr. Vol. III at 191-93), while Mr. Paulchel approximated its value was
$420,000 (see Dec. 1, 2021 Trial Tr. Vol. IV at 370-84).
{¶ 8} Of note, the parties had the Johnstown home appraised prior to trial. (Tr.
Vol. II at 187-89; Tr. Vol. III at 381-82.) Although Mr. Paulchel paid for the appraisal, he
permitted Ms. Vacheresse’s counsel to select the appraiser. (See Tr. Vol. II at 187-89; Tr.
Vol. III at 381-82.) Her attorney chose Samuel D. Koon & Associates, who appraised the
Johnstown home at $575,000. (See Trial Ex. B.) Ms. Vacheresse testified she did not agree
with that appraised value, but conceded she did not have a realtor’s license, real estate
appraisal certificate, real estate sales experience in the area, or a substantive basis for
challenging the qualifications of the appraiser selected by her attorney. (See Tr. Vol. III at
188-93.) Although Mr. Paulchel believed the appraiser overvalued the property, he
nonetheless indicated his amenability to the appraiser’s $575,000 valuation. (Tr. Vol. IV
at 370-71. See Tr. Vol. III at 189; Trial Ex. B.) Neither party called the appraiser as a witness
at trial, but the appraisal report was admitted into evidence at the close of trial, without
objection from Ms. Vacheresse’s trial counsel. (Dec. 2, 2021 Trial Tr. Vol. V at 593-96. See
Trial Ex. B.)
{¶ 9} Ultimately, the trial court found that Ms. Vacheresse’s assessment of the
Johnstown property’s value was not “of sufficient credibility to overrule by almost doubling
a professional appraiser’s valuation.” (Divorce Decree at 4.) In accepting the appraised
value of $575,000, the trial court “note[d] the extensive appraisal report, its meticulous
cataloguing of methodology, sources, and extensive supporting materials to justify its
valuation.” (Divorce Decree at 4.) On appeal, Ms. Vacheresse asserts in her second
assignment of error that the trial court erred in admitting and relying on the appraisal’s
valuation of the Johnstown home.
1 The parties also disagreed on whether it was an entirely marital asset (Ms. Vacheresse’s position) or if it had
some separate property contained within its equity (Mr. Paulchel’s position). (Divorce Decree at 4.) The trial
court found Mr. Paulchel failed to prove the separate nature of any part of the home by a preponderance of
the evidence. (Divorce Decree at 4.) Mr. Paulchel did not cross-appeal, so the propriety of that finding is not
before us.
No. 22AP-583 4
{¶ 10} After all allocations were ordered, the trial court recognized its distribution
of the marital assets—which totaled $7,359,385—was not entirely equal. (Divorce Decree
at 20.) Nonetheless, the court declined to order an equalization payment, thus leaving Ms.
Vacheresse with a net marital asset distribution of 45.10 percent and Mr. Paulchel with
54.90 percent of the total marital assets. (Divorce Decree at 21.) In her first assignment of
error, Ms. Vacheresse challenges the trial court’s failure to equalize the marital assets.
{¶ 11} Ms. Vacheresse timely appealed from the trial court’s August 31, 2022
judgment and asserts two assignments of error for our review:
[I.] THE COURT ABUSED ITS DISCRETION AND DID NOT MAKE
AN EQUITABLE DIVISION OF PROPERTY IN FAILING TO
EQUALIZE THE MARITAL ASSETS OF THE PARTIES.
[II.] THE TRIAL COURT ABUSED ITS DISCRETION IN RELYING
UPON AND ADMITTING INAPPROPRIATE EVIDENCE AND IN
THE VALUATION AND DISPOSITION OF THE MARITAL REAL
ESTATE LOCATED AT 855 W. COSHOCTON, JOHNSTOWN, OHIO.
II. ANALYSIS
{¶ 12} Ms. Vacheresse’s first and second assignments of error relate to the trial
court’s division of marital property and valuation of the Johnstown residence, respectively.
Because a trial court’s valuation determinations precede its equitable division analysis, we
address her two assignments of error in reverse order.
A. Law and Standards of Review
{¶ 13} In divorce proceedings, the trial court is required to determine what
constitutes marital property and what constitutes separate property. R.C. 3105.171(B).
Upon making such determinations, the trial court must divide the marital and separate
property equitably, between the spouses, in accordance with R.C. 3105.171.
R.C. 3105.171(B).
{¶ 14} R.C. 3105.171(C)(1) generally provides that marital property shall be divided
equally, unless an equal division would be inequitable, in which case the property shall be
divided in the manner the trial court determines equitable. To do this, the trial court must
value the marital property to determine an appropriate division. See Raymond v.
Raymond, 10th Dist. No. 11AP-363, 2011-Ohio-6173, ¶ 22.
No. 22AP-583 5
{¶ 15} A domestic relations court enjoys broad discretion in valuing and fashioning
a division of marital property. See, e.g., Fernando v. Fernando, 10th Dist. No. 16AP-788,
2017-Ohio-9323, ¶ 25-26; Kaechele v. Kaechele, 35 Ohio St.3d 93, 95 (1988); Sangeri v.
Yerra, 10th Dist. No. 19AP-675, 2020-Ohio-5520, ¶ 25. Thus, we generally review the
overall appropriateness of a trial court’s determination of marital property division in
divorce proceedings under an abuse-of-discretion standard. See, e.g., Teeter v. Teeter, 18
Ohio St.3d 76 (1985), citing Cherry v. Cherry, 66 Ohio St.2d 348, 355 (1981).
{¶ 16} “[A]buse of discretion connotes that the court’s attitude is unreasonable,
arbitrary, or unconscionable.” (Internal quotations omitted.) State v. Weaver, ___ Ohio
St.3d ___, 2022-Ohio-4371, ¶ 24, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, ¶ 60, quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). “A decision is
unreasonable if there is no sound reasoning process that would support the decision.”
(Internal quotations omitted.) Fernando at ¶ 7, quoting AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). A decision is
arbitrary if it is made “without consideration of or regard for facts [or] circumstances.”
(Internal quotations omitted.) State v. Hill, ___ Ohio St.3d ___, 2022-Ohio-4544, ¶ 9,
quoting State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, ¶ 12, quoting Black’s Law
Dictionary 125 (10th Ed.2014). A decision may also be arbitrary if it lacks any adequate
determining principle and is not governed by any fixed rules or standards. See Beasley at
¶ 12, citing Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356, 359 (1981), citing Black’s
Law Dictionary 96 (5th Ed.1979). See also State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-
6699, ¶ 19. A decision is unconscionable if it “affronts the sense of justice, decency, or
reasonableness.” Fernando at ¶ 7, citing Porter, Wright, Morris & Arthur, LLP v. Frutta
Del Mondo, Ltd., 10th Dist. No. 08AP-69, 2008-Ohio-3567, ¶ 11.
{¶ 17} An abuse of discretion may also be found where a trial court “applies the
wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous
findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶ 15 (8th
Dist.). See also New Asian Super Mkt. v. Jiahe Weng, 10th Dist. No. 17AP-207, 2018-Ohio-
1248, ¶ 16.
No. 22AP-583 6
B. Second Assignment of Error
{¶ 18} Ms. Vacheresse’s second assignment of error relates to the trial court’s
valuation of the Johnstown property. Ms. Vacheresse testified she believed it was worth
approximately $1,000,000 (Tr. Vol. II at 94), whereas Mr. Paulchel estimated its value at
$420,000 (Tr. Vol. IV at 370). At trial, Mr. Paulchel also produced an appraisal report—
from an appraiser selected by Ms. Vacheresse’s trial counsel—which valued the Johnstown
property at $575,000. (See Tr. Vol. III at 188-94; Tr. Vol. IV at 370-87; Trial Ex. B.)
Although the trial court sustained objections to trial counsel’s attempt to question Ms.
Vacheresse about this report (Tr. Vol. III at 190-91, 260-63), the appraisal report was
nonetheless admitted as evidence without objection at the close of trial (Tr. Vol. V at 593-
96). Neither party called its authors to testify at trial, and Ms. Vacheresse did not present
any expert evidence—e.g., a report from another appraiser or testimony from a qualified
realtor—concerning the value of the Johnstown property at trial.
{¶ 19} On appeal, Ms. Vacheresse asserts the trial court erred and abused its
discretion by admitting and relying on the appraisal report to determine the value for the
Johnstown residence. For the following reasons, we disagree.
1. Legal Standards
{¶ 20} “R.C. 3105.171 expresses no specific way for the trial court to determine
valuation.” Banchefsky v. Banchefsky, 10th Dist. No. 09AP-1011, 2010-Ohio-4267, ¶ 43,
citing Focke v. Focke, 83 Ohio App.3d 552, 554 (10th Dist.1992). Furthermore, “ ‘Ohio
courts have not specified that only one method of valuation is appropriate when dividing
marital property.’ ” Kuper v. Halbach, 10th Dist. No. 09AP-899, 2010-Ohio-3020, ¶ 12,
quoting Herrmann v. Herrmann, 12th Dist. No. CA99-01-006, 2000 Ohio App. LEXIS
5146, *14 (Nov. 6, 2000). Accordingly, “[w]hen determining the value of marital assets, a
trial court is not confined to the use of a particular valuation method, but can make its own
determination as to valuation based on the evidence presented.” Day v. Day, 10th Dist.
No. 08AP-440, 2009-Ohio-638, ¶ 10, citing James v. James, 101 Ohio App.3d 668, 681 (2d
Dist.1995). See also Smoyer v. Smoyer, 10th Dist. No. 18AP-365, 2019-Ohio-3461, ¶ 40.
{¶ 21} It is well-established, then, that a trial court generally has broad discretion to
develop some measure of value. See, e.g., Berish v. Berish, 69 Ohio St.2d 318 (1982);
Sangeri, 2020-Ohio-5520 at ¶ 25. Thus, the “valuation of marital assets is typically a
No. 22AP-583 7
factual issue that is left to the discretion of the trial court.” Roberts v. Roberts, 10th Dist.
No. 08AP-27, 2008-Ohio-6121, ¶ 18, citing Berish at 319. See also Raymond, 2011-Ohio-
6173 at ¶ 22; Day at ¶ 11.
{¶ 22} “ ‘Although a trial court enjoys broad discretion in determining the value of a
marital asset, such discretion is not without limit.’ ” Fernando, 2017-Ohio-9323 at ¶ 26,
quoting Apps v. Apps, 10th Dist. No. 02AP-1072, 2003-Ohio-7154, ¶ 38. “A trial court’s
assignment of an asset’s value must be based upon competent, credible evidence,” meaning
“evidence that is both competent, credible evidence of value and a rational basis upon which
to establish the value.” Warren v. Warren, 10th Dist. No 09AP-101, 2009-Ohio-6567, ¶ 15.
That is to say, “[a] trial court must have a rational evidentiary basis for assigning value to
marital property.” Fernando at ¶ 26. See also Dach v. Homewood, 10th Dist. No. 14AP-
502, 2015-Ohio-4191, ¶ 36.
{¶ 23} “ ‘An appellate court’s duty is not to require the adoption of any particular
method of valuation, but to determine whether, based upon all the relevant facts and
circumstances, the court abused its discretion in arriving at a value.’ ” Fernando at ¶ 26,
quoting Apps at ¶ 38. Because this court is not a trier of fact, our role is to determine
whether there is relevant, competent, and credible evidence upon which the fact finder
could base his or her judgment. See, e.g., Miller v. Miller, 10th Dist. No. 18AP-877, 2021-
Ohio-4573, ¶ 15; Tennant v. Martin-Auer, 188 Ohio App.3d 768, 2010-Ohio-3489, ¶ 16 (5th
Dist.). We must uphold “ ‘a trial court’s determination of valuation which is based upon
competent, credible evidence absent a showing of an abuse of discretion.’ ” Banchefsky at
¶ 43, quoting Moro v. Moro, 68 Ohio App.3d 630, 637 (8th Dist.1990).
2. Analysis
{¶ 24} On appeal, Ms. Vacheresse contends the trial court erred when it admitted
the appraisal report as evidence of the Johnstown property’s value because neither of its
authors—Brian J. Sapp and Samuel D. Koon of Samuel D. Koon & Associates—appeared as
a witness to testify and be subject to cross-examination about it. She also argues the trial
court abused its discretion in relying on this report to value the Johnstown property.
{¶ 25} “ ‘Ordinarily, a trial court is vested with broad discretion in determining the
admissibility of evidence in any particular case, so long as such discretion is exercised in
line with the rules of procedure and evidence.’ ” State v. L.E.F., 10th Dist. No. 13AP-1042,
No. 22AP-583 8
2014-Ohio-4585, ¶ 4, quoting Rigby v. Lake Cty., 58 Ohio St.3d 269, 271 (1991).
Accordingly, an appellate court generally limits its review of a trial court’s admission or
exclusion of evidence to whether the trial court abused its discretion. Id., citing Reinoehl
v. Trinity Universal Ins. Co., 130 Ohio App.3d 186, 195 (10th Dist.1998).
{¶ 26} Ms. Vacheresse concedes, however, that her trial counsel did not object to the
admission of the appraisal report that she now alleges was erroneously admitted by the trial
court. (Appellant’s Brief at 22.) But, she nonetheless “asserts that plain error is not
appropriate” because her trial counsel objected to the report when she was questioned
about it on cross-examination. (Appellant’s Brief at 23.) That argument is not well-taken.
{¶ 27} It is well-established that “[g]enerally, when a party fails to renew an
objection at the time exhibits are admitted into evidence, that party waives the ability to
raise the admission as error on appeal, unless plain error is shown.” Odita v. Phillips, 10th
Dist. No. 09AP-1172, 2010-Ohio-4321, ¶ 56, citing Nicula v. Nicula, 8th Dist. No. 84049,
2009-Ohio-2114. See also State v. Smith, 80 Ohio St.3d 89, 107 (1997). Because Ms.
Vacheresse’s trial counsel failed to object to the admission of the appraisal report as an
exhibit at the time Mr. Paulchel’s counsel moved to admit it into evidence, we limit our
review to whether the alleged error rises to the level of plain error. Evid.R. 103(A)(1), (D).
{¶ 28} “In civil cases, courts apply the doctrine of plain error ‘with the utmost
caution.’ ” Marshall v. Marshall, 10th Dist. No. 18AP-543, 2019-Ohio-684, ¶ 8, quoting
Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). Courts find plain error “ ‘only in the
extremely rare case involving exceptional circumstances where error * * * seriously affects
the basic fairness, integrity, or public reputation of the judicial process, thereby challenging
the legitimacy of the underlying judicial process itself.’ ” Id., quoting Goldfuss at syllabus.
{¶ 29} Ms. Vacheresse has not presented this court with any argument explaining
how the trial court’s alleged error in admitting the appraisal report for the Johnstown home
undermined the legitimacy of the judicial process in this case. Instead, she generally claims
“the admission of and reliance upon [the] valuation [contained in that report] did seriously
affect the process and [her] substantial rights[,]” without explaining why she believes that
is so. (See Appellant’s Brief at 23.) Ms. Vacheresse cites to the “amount of discrepancy at
issue” and her “failure to confront” the appraiser about the valuation as issues that bore out
from the erroneous admission of the report. (See Appellant’s Brief at 23.) But even
No. 22AP-583 9
assuming the admission of this appraisal report was erroneous, we do not find its admission
undermined the legitimacy of the judicial process given the facts and circumstances of this
case. Thus, we decline to address whether the trial court plainly erred in admitting the
appraisal report because we find that, even if it did, Ms. Vacheresse does not sufficiently
establish she was prejudiced by its admission, for the reasons that follow.
{¶ 30} Ms. Vacheresse’s trial counsel selected the appraiser for the Johnstown
property. (See Tr. Vol. III at 188-89; Tr. Vol. IV at 381-82.) Evidence in the record suggests
a copy of the report was sent to Ms. Vacheresse’s trial counsel on April 19, 2021. (See Trial
Ex. B.) At trial, Ms. Vacheresse’s attorney did not contest the qualifications of the appraiser
she selected. Nor did Ms. Vacheresse’s trial counsel claim the report relied on inaccurate
information or unaccepted methods of valuation. And although neither party agreed with
the appraiser’s valuation of the Johnstown property, only Mr. Paulchel indicated a
willingness to accept it. (See Tr. Vol. IV at 370-87.)
{¶ 31} Neither party called the appraiser to testify about the report at trial. And,
other than offering their own lay opinions about the value of the property, neither party
presented alternative expert evidence concerning the value of the Johnstown property.
While there is no general burden of proof with respect to the division of property, “ ‘[e]ach
side has the burden of going forward with evidence as to any [R.C. 3105.18(C)(1)] factor
which it wants considered, bringing forth facts tending to prove its version of the manner
in which such factors should be applied.’ ” Banchefsky v. Banchefsky, 10th Dist. No. 13AP-
300, 2014-Ohio-899, ¶ 28, quoting Barrientos v. Barrientos, 3d Dist. No. 5-12-13, 2013-
Ohio-424, ¶ 37, citing Stetler v. Stetler, 6 Ohio App.3d 29 (3d Dist.1983). See also Reichert
v. Reichert, 3d Dist. No. 8-90-21, 1992 Ohio App. LEXIS 294, *4-5 (Jan. 17, 1992).
{¶ 32} Because her trial counsel received the report months before the divorce trial
commenced (see Trial Ex. B), Ms. Vacheresse had ample time to seek an alternative expert
opinion that was more in-line with the valuation she felt was appropriate. Yet, Ms.
Vacheresse presented no such expert opinion at trial. She did not offer her own appraisals
into evidence or call any qualified experts to testify about their assessment of the Johnstown
property’s value. Thus, Ms. Vacheresse submitted no evidence to establish, or support
No. 22AP-583 10
her testimony, that the Johnstown property should be valued at $1,000,000.2
{¶ 33} In contrast, Mr. Paulchel presented an appraisal report from an appraiser Ms.
Vacheresse’s trial counsel selected. Although the trial court sustained objections concerning
trial counsel’s questioning of Ms. Vacheresse about the report on the third day of trial (Tr.
Vol. III at 190-91, 260-63), Mr. Paulchel was permitted to testify about that appraisal on
the fourth day (see Tr. Vol. IV at 370-87). And, most critically, when Mr. Paulchel’s trial
counsel moved to admit the appraisal report as evidence on the fifth day, Ms. Vacheresse’s
attorney did not object to its admission. (Tr. Vol. V at 593-96.)
{¶ 34} In supplemental briefing ordered by this court, the parties agree the trial
court’s valuation of the Johnstown property had virtually no impact on the trial court’s
equitable division analysis. (Aug. 21, 2023 Appellant’s Supp. Brief at 1; Aug. 21, 2023
Appellee’s Supp. Brief at 4. See Divorce Decree at 4.) Indeed, this is because the trial court
ordered the parties to sell all three marital properties and equally divide the net proceeds
of those sales. (Divorce Decree at 16-17.) The trial court also gave Mr. Paulchel the option
to refinance the Johnstown property and equally divide the equity in this home with Ms.
Vacheresse. (Divorce Decree at 17.) The same option was extended to Ms. Vacheresse with
respect to the Springboro property. (Id.) Furthermore, while the trial court relied on the
admitted appraisal reports for both the Johnstown and Springboro properties to calculate
each property’s marital value3 (Divorce Decree at 4-5), the parties acknowledge those
values were not included in the trial court’s marital asset distribution analysis (see
Appellant’s Supp. Brief at 1; Appellee’s Supp. Brief at 4).
2 We note that while Mr. Paulchel sought to retain the Johnstown property as his residence (Dec. 23, 2021
Def.’s Proposed Jgmt. Entry at 12-13), Ms. Vacheresse wanted the trial court to order the parties to sell it and
divide the proceeds (Dec. 23, 2023 Pl.’s Proposed Findings of Fact/ Conclusion of Law at 5). We also note that
Ms. Vacheresse requested to retain the Springboro residence, another contested marital asset, if the trial court
did not order the parties to “sell everything and fairly divide it” (Tr. Vol. II at 99), and Mr. Paulchel was
agreeable to Ms. Vacheresse retaining the Springboro residence if she bought him out of the equity on that
house (Tr. Vol. III at 384-85). At trial, Ms. Vacheresse contested one appraiser’s valuation of the Johnstown
property, but agreed with another appraiser’s valuation of the Springboro property. (See Tr. Vol. III at 193-
94, 260-63.) She conceded, however, she was not aware of any difference in the qualifications, degrees,
education, or knowledge between the two appraisers. (Tr. Vol. III at 193-94.)
3 The trial court calculated the “marital value” of each property by determining the principal balance of the
mortgage on the property and subtracting that number from the valuation set forth in the corresponding
expert appraisal report. (See Divorce Decree at 4-5.)
No. 22AP-583 11
{¶ 35} Based on the foregoing, we find the facts and circumstances of this case are
not exceptional and do not give rise to plain error. We likewise find the trial court did not
abuse its discretion in relying on the appraisal report, as described below.
{¶ 36} In determining the value of the Johnstown property, the trial court noted that
Ms. Vacheresse testified she believed it was worth $1,000,000 and Mr. Paulchel asserted
its value was approximately $420,000 but would be willing to agree to the $575,000
appraisal. (Divorce Decree at 4.) Ultimately, the trial court opined that Ms. Vacheresse’s
assessment of its valuation was not credible, “[o]r rather, of sufficient credibility to overrule
by almost doubling a professional appraiser’s valuation.” (Id.) It also noted “the extensive
appraisal report, its meticulous cataloguing of methodology, sources, and extensive
supporting materials to justify its valuation.” (Id.)
{¶ 37} Although Ms. Vacheresse attributes error to the trial court’s admission and
reliance on the appraisal report for the Johnstown property in her second assignment of
error, the arguments she makes in support relate almost exclusively to the report’s
admission. To support her contention that the trial court abused its discretion in relying
on this report when it valued the Johnstown property, Ms. Vacheresse essentially presumes
its admission was error. That is to say, she has not presented this court with any substantive
arguments explaining how or why the trial court’s reliance on an exhibit admitted into
evidence without objection from either party to determine the value of the Johnstown
property constituted an abuse of discretion. Ms. Vacheresse does not argue, for instance,
that the appraisal report itself was so inadequate or ineptly prepared, or relied on clearly
improper facts, sources, and/or methodology, such that the trial court’s reliance on this
admitted trial exhibit was unreasonable, arbitrary, or unconscionable. And, again, we
emphasize that Ms. Vacheresse did not present any competing expert evidence regarding
the value of that property.
{¶ 38} Having already found the trial court’s admission of the appraisal report did
not constitute plain error, we thus find the trial court’s determination that the Johnstown
property’s value is $575,000 is supported by some competent, credible evidence in the
record. We further find the trial court did not err, plainly or otherwise, in finding Ms.
Vacheresse’s valuation assessment was not sufficiently credible to counter the professional
appraiser’s valuation where, as was the case here, the credentials of that appraiser were
No. 22AP-583 12
never in dispute and Ms. Vacheresse had no expert credentials herself. Thus, the trial court
did not err in basing the value of the Johnstown property on the only expert appraisal report
admitted into evidence for that property.
{¶ 39} For these reasons, Ms. Vacheresse’s second assignment of error is overruled.
C. First Assignment of Error
{¶ 40} In her first assignment of error, Ms. Vacheresse asserts the trial court erred
and abused its discretion when it found that an equalization payment of $360,875 from Mr.
Paulchel to Ms. Vacheresse would be inequitable in this case. Because of this
determination, the net marital assets were not equitably distributed; Ms. Vacheresse
received 45.10 percent ($3,318,817.50) and Mr. Paulchel received 54.90 percent
($4,040,567.50) of the $7,359,385 total marital assets. Based on the record before us,
however, we cannot say this constituted an abuse of discretion.
1. Legal Standards
{¶ 41} After determining what constitutes marital property and what constitutes
separate property, a trial court is generally required to divide the marital and separate
property equitably. R.C. 3105.171(B). With respect to marital property, R.C. 3105.171(C)(1)
provides:
Except as provided in this division or division (E) of this
section, the division of marital property shall be equal. If an
equal division of marital property would be inequitable, the
court shall not divide the marital property equally but instead
shall divide it between the spouses in the manner the court
determines equitable. In making a division of marital property,
the court shall consider all relevant factors, including those set
forth in division (F) of this section.
{¶ 42} Thus, although a trial court has broad discretion in determining property
division, an equal distribution should be the starting point of the analysis. Goebel v. Goebel,
10th Dist. No. 15AP-61, 2015-Ohio-5547, ¶ 7, citing Cherry, 66 Ohio St.2d at 353.
{¶ 43} In making a division of marital property and in determining whether to make
and the amount of any distributive award under this section to ensure equalization of the
marital assets, a trial court considers the following factors:
1. The duration of the marriage;
No. 22AP-583 13
2. The assets and liabilities of the spouses;
3. The desirability of awarding the family home, or the right
to reside in the family home for reasonable periods of time,
to the spouse with custody of the children of the marriage;
4. The liquidity of the property to be distributed;
5. The economic desirability of retaining intact an asset or an
interest in an asset;
6. The tax consequences of the property division upon the
respective awards to be made to each spouse;
7. The costs of sale, if it is necessary that an asset be sold to
effectuate an equitable distribution of property;
8. Any division or disbursement of property made in a
separation agreement that was voluntarily entered into by
the spouses;
9. Any retirement benefits of the spouses, excluding the
social security benefits of a spouse except as may be
relevant for purposes of dividing a public pension;
10. Any other factor that the court expressly finds to be
relevant and equitable.
R.C. 3105.171(F). A trial court must evaluate all relevant facts in determining an equitable
division. Caleshu v. Caleshu, 10th Dist. No. 19AP-742, 2020-Ohio-4075, ¶ 8, citing Cherry
at 355.
{¶ 44} Because we review a trial court’s division of property for an abuse of
discretion, our job “is not to reweigh the evidence but to determine whether competent,
credible evidence in the record supports the trial court’s findings.” Caleshu at ¶ 9, quoting
Hood v. Hood, 10th Dist. 10AP-999, 2011-Ohio-3704, ¶ 14, citing Dunham v. Dunham, 171
Ohio App.3d 147, 2007-Ohio-1167, ¶ 27 (10th Dist.), and Taub v. Taub, 10th Dist. No.
08AP-750, 2009-Ohio-2762, ¶ 15.
{¶ 45} “ ‘The mere fact that a property division is unequal, does not, standing alone,
amount to an abuse of discretion.’ ” Martin v. Martin, 18 Ohio St.3d 292, 294 (1985),
quoting Cherry at paragraph two of the syllabus.
2. Analysis
{¶ 46} In finding an equitable distribution payment of $360,875 would be
inequitable in this case, the trial court stated the following:
No. 22AP-583 14
First and foremost, the primary assets driving the difference in
distribution are [Mr. Paulchel’s] investment accounts. The gap
between [Mr. Paulchel] and [Ms. Vacheresse] can almost
entirely be made up from [Mr. Paulchel’s] accounts. But the
[c]ourt notes [Mr. Paulchel] is older than [Ms. Vacheresse] and
thus will likely be out of his prime earning years if not upon
completion of this case[,] then shortly thereafter. [Ms.
Vacheresse] will, with the acquisition of the Cincinnati and
Dayton Good Feet stores have considerable income as well as
time to make good any difference in this distribution. Further,
both parties will likely see significant infusions of liquid capital
via the sale of their personal real estate. If they do not, it will be
because they desired to secure those pieces of property by
buying the other out. In short, the parties have many options
for securing their financial futures in a way that is not overly
burdensome to the other. In the interest of fairness and equity,
the [c]ourt therefore declines to order an equalization payment
in this case.
(Aug. 31, 2022 Divorce Decree at 21.)
{¶ 47} Relatedly, we note that Mr. Paulchel was permitted to retain the Columbus
Good Feet franchise (stipulated value $2,175,000) he owned before the marriage, which
comprises of two brick-and-mortar stores. (Divorce Decree at 19. See also Nov. 17, 2021
Joint Stipulations at No. 9a; Tr. Vol. II at 35-36.) Ms. Vacheresse was awarded the
Cincinnati and Dayton Good Feet franchises (stipulated values $1,174,000 and $1,512,000,
respectively), which the parties acquired together during their marriage. (Divorce Decree
at 19. See also Joint Stipulations at No. 9; Tr. Vol. II at 35-36.) At the time of trial, the
Cincinnati and Dayton franchises each only had one existing store in their respective
market areas. (See Tr. Vol. II at 35-36.)
{¶ 48} The trial court found this division of the parties’ net marital assets—45.10
percent to Ms. Vacheresse and 54.90 percent to Mr. Paulchel—to be equitable for the
following reasons:
[T]he long duration of the marriage, the nature of the assets
and liabilities of the parties, the liquidity of the property to be
distributed, [Ms. Vacheresse’s] current and future income, the
economic desirability of retaining their respective business
interests intact, both parties[’] desire to retain their respective
business interests, and the opportunities this distribution
provides both parties.
(Divorce Decree at 21.)
No. 22AP-583 15
{¶ 49} Despite acknowledging a trial court has broad discretion in determining the
equitable division of marital property (Appellant’s Brief at 26) and that “an equitable
division [does] not [necessarily] mean equal” (Appellant’s Brief at 10), Ms. Vacheresse
nonetheless argues in her first assignment of error that the trial court abused its discretion
in failing to order an equalization payment to her, and claims the trial court’s distribution
of marital property was inequitable. In support of that contention, Ms. Vacheresse does not
allege the trial court failed to consider the appropriate statutory factors in reaching its
decision on the equitable division of property. Nor does she contend the trial court failed
to consider other relevant facts presented at trial.
{¶ 50} Instead, Ms. Vacheresse disagrees with the conclusions the trial court
reached after considering those factors and relevant trial testimony. (See Appellant’s Brief
at 11-17.) More precisely, Ms. Vacheresse takes issue with the trial court’s decision not to
equally divide Mr. Paulchel’s brokerage accounts totaling $1,233,389 and the parties’ IRA
accounts—Mr. Paulchel’s valued at $200,747 and Ms. Vacheresse’s valued at $26,014—
between the parties. (Appellant’s Brief at 11.)
{¶ 51} Having reviewed the record, we find the trial court appropriately considered
multiple relevant statutory factors in R.C. 3105.171(F) and the relevant facts presented at
trial. Furthermore, we find competent, credible evidence in the record supports the trial
court’s equitable division findings, including its determination that ordering an
equalization payment would be inequitable in this case. Particularly significant to this
determination, we believe, is the testimony presented at trial regarding the growth potential
of the Cincinnati and Dayton Good Feet franchise “designated media areas” or “DMAs” (see
Tr. Vol. II at 55) awarded to Ms. Vacheresse.
{¶ 52} Mr. Paulchel testified that he did not believe the Cincinnati DMA had been
managed to its maximum potential because the franchise agreement expressly provides for
two more stores to be opened in the Cincinnati area. (Tr. Vol. III at 298-300.) Thus, he
opined that, if the trial court awarded that franchise to Ms. Vacheresse—which it ultimately
did—Ms. Vacheresse would receive “more money than the appraised value” for that store
because of the market value associated with the additional stores provided for in the
Cincinnati’s DMA franchise agreement. (See Tr. Vol. III 299-300; Tr. Vol. IV at 437-43.)
Further, as to the Dayton DMA franchise, Mr. Paulchel testified that, although he stipulated
No. 22AP-583 16
to its appraised value, he did not fully agree with it. (Tr. Vol. III at 304-05.) He claimed
Dayton had the “best market” “[b]ecause there is always money in [its business] account,
and it is the highest profit margin.” (Tr. Vol. III at 304-06; Tr. Vol. IV at 439-41, 458.) He
also indicated an opportunity existed to open another store in the Dayton DMA under its
franchise agreement. (Tr. Vol. IV at 463-64.)
{¶ 53} Mr. Paulchel opined that both the Cincinnati and Dayton stores had a
significant potential for increased sales. (Tr. Vol. III at 297-98, 304-06; Tr. Vol. IV at 437-
43.) He also testified that he believed the Cincinnati DMA was “way undervalued compared
to Columbus.” (Tr. Vol. IV at 359-60.) And, of note, Ms. Vacheresse herself recognized the
Dayton and Cincinnati stores were “a whole lot more profitable” than the two Columbus
stores. (Tr. Vol. III at 270.)
{¶ 54} While it is true, as Ms. Vacheresse points out (see Appellant’s Brief at 15-16),
the trial court found Mr. Paulchel lacked credibility in several areas (Divorce Decree at 3),
nothing in the record refutes or otherwise suggests his testimony about the profitability of
and growth potential for the Cincinnati and Dayton DMAs was not credible. Indeed, his
testimony on this matter is bolstered by virtue of the fact that both parties requested to be
awarded the Cincinnati DMA. (Tr. Vol. III at 214-20, 270; Tr. Vol. IV at 342-43, 359-60.)
{¶ 55} Moreover, although only Mr. Paulchel was named in the three Good Feet
franchise agreements for the contested Columbus, Cincinnati, and Dayton DMAs, Ms.
Vacheresse testified extensively about her involvement in the stores and good relationship
with Good Feet’s corporate team and her employees at the Cincinnati and Dayton stores.
(See, e.g., Tr. Vol. II 52-85; Tr. Vol. III at 173-75, 214-23, 270. Compare Tr. Vol. III at 296-
307; Tr. Vol. IV at 356-60.) She recounted how her previous training in podiatric medicine
has “immensely” contributed to her success in running these Good Feet stores (Tr. Vol. II
at 68-69), and repeatedly expressed that, although both were opened during the parties’
marriage, the Cincinnati and Dayton locations had always been “[her] stores” (see, e.g., Tr.
Vol. II at 77, 132, 135, 141, 172, 211, 214-15, 217-19, 270, 277, 280). (Compare Tr. Vol. IV at
356-60.) Ms. Vacheresse testified that Good Feet corporate “loved” the podiatry knowledge
she brought to the stores and, at one point, made her the “trainer for pathology” for persons
trying to become “pedorthists.” (Tr. Vol. II at 68-69.) Suffice it to say that there is nothing
in the record to suggest Good Feet corporate would not be amenable to Ms. Vacheresse
No. 22AP-583 17
taking over and expanding the Cincinnati and Dayton Good Feet DMAs independent of Mr.
Paulchel.
{¶ 56} Ms. Vacheresse indicated she intended, if awarded both the Cincinnati and
Dayton DMAs, to continue working. (Tr. Vol. II at 82-85.) In light of Mr. Paulchel’s
unchallenged testimony about the growth potential of both the Cincinnati and Dayton
DMAs, we thus find the trial court’s determination that the difference in the distribution of
marital assets would, in time, be offset by the considerable income earned from the
Cincinnati and Dayton DMAs that were awarded to Ms. Vacheresse to be supported by
competent, credible evidence. (See Divorce Decree at 21.)
{¶ 57} Ms. Vacheresse also contends the trial court’s second reason for finding an
equalization payment would be inappropriate in this case—potential for significant
infusions of cash from the real estate being sold—is not supported by the trial court’s
decision. (Appellant’s Brief at 14-15.) We disagree.
{¶ 58} Prior to trial, the parties stipulated to the sale-and-split of the Cincinnati
marital property, but they reached no agreement regarding the Johnstown and Springboro
properties. (See Divorce Decree at 3-5.) Ultimately, the trial court ordered the parties to sell
all three real estate assets in the marital estate and equally split the proceeds therefrom.
(Divorce Decree at 16-17.) However, the trial court also awarded Mr. Paulchel the option
to purchase the Johnstown property (marital value of $260,904.53) and Ms. Vacheresse
the option to purchase the Springboro property (marital value of $98,353.26). (Divorce
Decree at 17.)
{¶ 59} On appeal, Ms. Vacheresse suggests she would not see a significant infusion
of cash “if the real estate is retained[]” because the marital value of the Johnstown property
“is worth nearly three times” that of the Springboro property. (Appellant’s Brief at 14. See
Divorce Decree at 21.) We note, however, that the divorce decree did not merely award Mr.
Paulchel one property and Ms. Vacheresse the other. To the contrary, the trial court
ordered a sale-and-split arrangement for both properties but gave each party the “option to
refinance the home and buyout [the other party’s] portion of [their] equity in [each] home.”
(Divorce Decree at 17.) If Mr. Paulchel decides to exercise this option and keep the
Johnstown property, he is ordered to pay Ms. Vacheresse “50% of the value of the property,
minus the refinanced debt[.]” (Divorce Decree at 17.) Ms. Vacheresse was given the same
No. 22AP-583 18
option, conditioned upon the same requirement if exercised, as to the Springboro
residence. (Id.) In light of these terms, then, Ms. Vacheresse’s contention that the trial
court’s decision does not support the trial court’s reasoning is not well-taken. If Mr.
Paulchel exercises his option and retains the Johnstown property, Ms. Vacheresse will still
receive “50% of the value of the property, minus the refinanced debt[.]” (Divorce Decree at
17.) In such event, Ms. Vacheresse would be expected to “see [a] significant infusion[] of
liquid capital[.]” (See Divorce Decree at 21.)
{¶ 60} For these reasons, and based on our review of the record, we conclude the
trial court did not abuse its discretion by finding it would be inequitable in this case to
require Mr. Paulchel to make a $360,875 equalization payment to Ms. Vacheresse.
Accordingly, Ms. Vacheresse’s first assignment of error is overruled.
III. CONCLUSION
{¶ 61} Having overruled Ms. Vacheresse’s two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
LUPER SCHUSTER and MENTEL, JJ., concur.
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"2",
"6",
"9",
"15",
"17",
"18",
"20"
]
Law
9901407
[SEGMENT 1]
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL IV
EMMANUEL SANTIAGO Apelación
RODRÍGUEZ H/N/C ESR procedente del
PLUMBING SERVICES Tribunal de
Primera Instancia,
Apelado Sala de Caguas
v. KLAN202400140 Caso Número:
CG2020CV02783
RAYMOND RIVERA
GUINDIN, CSP Sobre:
Cobro de dinero-
Apelante Ordinario
Panel integrado por su presidenta, la Jueza Cintrón Cintrón, la
Jueza Rivera Marchand y el Juez Rodríguez Flores
Rivera Marchand, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de mayo de 2024.
Comparece ante nos, la Corporación Raymond Rivera
Guindin, CSP (Corporación RRG o apelante) y solicita que
revoquemos la [CITATION] en rebeldía que emitió y notificó el
Tribunal de Primera Instancia, Sala de Caguas (TPI o foro primario)
el 30 de octubre de 2023. Mediante el referido dictamen, el TPI
declaró Ha Lugar la Demanda [CITATION] sobre cobro de dinero que el Sr.
Emmanuel Santiago Rodríguez (Sr. Santiago Rodríguez o apelado)
instó en su contra y condenó a la Corporación RRG a pagar
$37,868.01 a favor del Sr. Santiago Rodríguez, más honorarios,
gastos y costas.
Por los fundamentos que expondremos, revocamos la
Sentencia apelada. Para una mejor comprensión del curso decisorio
de esta Curia, procedemos a resaltar el tracto procesal y la
controversia ante nos.
I.
[CITATION]
Número Identificador:
SEN2024________ KLAN202400140
En su reclamación, el Sr. Santiago Rodríguez alegó que, la
Corporación RRG lo contrató para rendir servicios profesionales de
plomería en los proyectos Mirador Escorial en Carolina y
Miramelinda en Río Grande. Adujo haber completado los servicios
contratados, valorados en $37,868.01, sin que la Corporación RRG
le pague por los servicios prestados. Ello, a pesar de los múltiples
intentos de cobro. A raíz de lo anterior expuso que, la cuantía
reclamada está vencida y es líquida y exigible, toda vez que, el Sr.
Raymond Rivera Guindin (Sr. Rivera Guindin), presidente de la
Corporación RRG, presuntamente reconoció la deuda y se
comprometió a satisfacer el pago. Sobre tales bases, solicitó al TPI
que condenara a la Corporación RRG al pago de $37,868.01, más
intereses, costas y $10,000.00 en honorarios de abogado.
En reacción, la Corporación RRG presentó su alegación
responsiva, sin someterse a la jurisdicción del TPI.3 En síntesis alegó
que, entre la corporación y el Sr. Santiago Rodríguez no hubo un
contrato, más bien, que el Sr. Santiago Rodríguez se comprometió a
realizar unas labores de plomería, las cuales abandonó sin finalizar.
Añadió que, tales circunstancias la obligaron a contratar los
servicios de plomería de un tercero. Corolario de lo anterior, negó la
deuda que reclamó el Sr. Santiago Rodríguez, la cual señaló como
excesiva.
Así las cosas, el foro primario calendarizó una Conferencia
Inicial.4 Ante la incomparecencia de la Corporación RRG, el TPI
transfirió la vista para el 5 de agosto de 20215 y, separadamente,
emitió una Orden Para Mostrar Causa con el propósito de que la
parte demandada exprese las razones para su incomparecencia.6 En
cumplimiento con lo requerido, la representante legal de la
3 [CITATION] KLAN202400140
Corporación RRG compareció y atribuyó su incomparecencia a una
cita médica y a un viaje fuera de Puerto Rico.[CITATION]
Celebrada la Conferencia Inicial, con la participación de las
representaciones legales de ambas partes,[CITATION] el TPI señaló una Vista
de Seguimiento para el 12 de octubre de 2021, ante la posibilidad de
un acuerdo transaccional. Llegado el día, la representante legal de
la parte demandada no compareció.[CITATION] En su consecuencia, el TPI
transfirió la vista para el 30 de noviembre de 2021.
Ante la incomparecencia de la Lic. Lourdes M. Torres Esteves
a la vista re-señalada para el 30 de noviembre de 2021, el foro
primario emitió una Orden de Mostrar Causa[CITATION] en la cual le impuso
una sanción de $150.00 a favor de la parte demandante y la
apercibió de que otro incumplimiento con órdenes o señalamientos
del TPI conllevará la anotación de la rebeldía a la parte demandada,
más otras potenciales sanciones. A esos efectos, señaló la
Conferencia con Antelación a Juicio para el 21 de enero de 2022.
Se desprende del volante de notificación correspondiente que,
el foro primario ordenó notificar la referida orden de mostración de
causa a la dirección postal del Sr. Rivera Guindin (PO Box 5863,
Caguas PR 00726) y a los respectivos correos electrónicos de las
representaciones legales de ambas partes.[CITATION] Asimismo, surge de la
Minuta de dicha vista que el foro primario ordenó a las partes
presentar el Informe para el Manejo del Caso en o antes del 14 de
enero de 2022.
A la vista del 21 de enero de 2022, la Lic. Torres Esteves no
compareció, tampoco la parte demandada.[CITATION] En reacción, el TPI
sancionó la incomparecencia de la parte demandada mediante la
[CITATION] KLAN202400140
anotación de la rebeldía a la Corporación RRG, aumentó a $300.00
la sanción económica previamente impuesta y señaló la vista en
rebeldía para el 21 de marzo de 2022.
Precisa resaltar que, la referida Minuta no fue notificada en
autos.
Con anterioridad al próximo señalamiento, el 7 de febrero de
2022, la parte demandada compareció ante el foro primario
mediante una Moción para Cumplir Orden.[CITATION] Allí, la Lic. Torres
Esteves, en representación de la Corporación RRG, indicó que
advino en conocimiento -a través de su representado- de la Orden
de Mostrar Causa fechada el 30 de noviembre de 2021, la cual
aseguró que no le fue notificada por correo electrónico. Expuso,
además, que envió a la abogada de la parte demandante su proyecto
de Informe para el manejo de caso desde el 10 de junio de 2021,
junto a una invitación a un diálogo conciliador. Añadió que, ese
mismo día remitirá a dicha abogada el pago de la sanción que fue
impuesta a favor de ésta.
Se desprende del expediente que, el TPI emitió una Orden,[CITATION]
notificada el 18 de marzo de 2022, mediante la cual transfirió la
vista en rebeldía para el 12 de mayo de 2022 debido a que, el
señalamiento previo no correspondía a un día laborable en el Poder
Judicial.
Inconforme, la Corporación RRG presentó otra moción,[CITATION]
mediante la cual informó que, tras una búsqueda en SUMAC, se
percató de que varias órdenes que figuraban en el expediente digital
presuntamente no le fueron notificadas debidamente, entre otras, la
orden mediante la cual el foro primario anotó la rebeldía a su
representado y aumentó la sanción previamente impuesta. Solicitó
al foro primario el levantamiento de la rebeldía fundamentado en la
[CITATION] Apéndice, págs. 40-41.
[CITATION] Apéndice, págs. 42-43.
[CITATION] Apéndice, págs. 44-47. KLAN202400140
presunta falta de notificación, en que la eliminación de las
alegaciones de su cliente es la sanción más severa y en que, a su
entender, el levantamiento no retrasa la celebración del juicio ni
resulta oneroso al Sr. Santiago Rodríguez.
A pesar de lo antes, el 12 de mayo de 2022, el TPI procedió a
celebrar la Vista en Rebeldía.[CITATION] Cabe señalar que, el 17 de marzo de
2023, transcurridos diez meses de la celebración de la vista en
rebeldía, el TPI emitió una Orden[CITATION] a los efectos de disponer que el
Sr. Santiago Rodríguez expusiera su posición en torno a solicitud de
levantar la anotación de rebeldía que la parte demandada solicitó el
[SEGMENT 2]
23 de marzo de 2022, y reiteró el 19 de abril de 2023.[CITATION]
Al cabo de más de un año de lo anterior y sin que la parte
demandante acreditara su posición en torno al relevo de la
anotación de rebeldía que solicitó la Corporación RRG, el TPI notificó
la Sentencia apelada en rebeldía mediante la cual, declaró ha lugar
la demanda y ordenó a la Corporación RRG pagar a favor del Sr.
Santiago Rodríguez $37,868.01, más $1,000.00 en honorarios por
temeridad, los gastos y las costas relacionadas con el litigio.
En desacuerdo, la Corporación RRG presentó una Moción de
Reconsideración.[CITATION] En ella alegó que, a partir de la celebración de la
vista sobre conferencia inicial, no recibió notificaciones del TPI a
través de correo electrónico, ni por correo regular, lo cual
constituyen las razones para sus incomparecencias. Hizo constar
que, la parte demandante no se expresó en torno a su escrito
solicitando que se levantara la anotación de rebeldía.
[CITATION] La minuta fue enmendada a los efectos de corregir el
nombre del juez y el número del salón.
[CITATION] KLAN202400140
Evaluado lo anterior, el TPI denegó el petitorio de
reconsideración.20 Inconforme, la Corporación RRG acude ante esta
Curia y señala en su recurso la comisión de cuatro errores, a saber:
Erró el Tribunal de Primera Instancia al dictar Sentencia en
rebeldía en contra de la parte apelante, a pesar de que
procedía el relevo de la anotación de rebeldía en estricto
derecho, constituyendo esta actuación un abuso de
discreción, error manifiesto de derecho y una actuación
contraria al debido proceso de ley.
Erró el Tribunal de Primera Instancia al dictar Sentencia en
Rebeldía en contra de la parte apelante, a pesar de que la
propia demanda no surge una reclamación que justifique la
concesión de un remedio al faltar alegaciones de
temporalidad.
Erró el Tribunal de Primera Instancia al dictar Sentencia en
Rebeldía en contra de la parte apelante, y ordenando el pago
de la suma de $37,868.01, a pesar de que el propio apelado
admitió que no completó la obra que alega por la que fue
contratado. Asimismo, el foro primario erró al no especificar
esta admisión en sus determinaciones de hecho.
Erró el Tribunal de Primera Instancia al imponer la suma de
$1,000.00 en concepto de honorarios de abogados, más los
gastos y costas, a pesar de que la parte apelante no fue
temeraria y procedía el levantamiento de la rebeldía.
Examinada la apelación, apercibimos a la parte apelada del
término permitido, conforme autoriza la Regla 22 del Reglamento del
Tribunal de Apelaciones para presentar su oposición. Ha
transcurrido mayor término sin que se haya acreditado la oposición,
por lo que, según advertido, procedemos a resolver sin el beneficio
de su comparecencia.
II.
A. La eliminación de las alegaciones
La Regla 39.2 de Procedimiento Civil, 32 LPRA Ap. V, R. 39.2
faculta al tribunal a eliminar las alegaciones de una parte como
sanción ante su incumplimiento con las órdenes del tribunal.
[CITATION]
Sin embargo, debido a que esta sanción atenta en contra de la política pública de
20 Apéndice, pág. 25. KLAN202400140
que los casos se ventilen en sus méritos, este poder deberá ser
ejercido de forma juiciosa y apropiada. [CITATION]
Sobre el particular, la Regla 39.2 de Procedimiento Civil,
supra, dispone:
[…]
Cuando se trate de un primer incumplimiento, la severa
sanción de la desestimación de la demanda o la
eliminación de las alegaciones tan sólo procederá
después que el tribunal, en primer término, haya
apercibido al abogado o abogada de la parte de la
situación y se le haya concedido la oportunidad para
responder. Si el abogado o abogada de la parte no
responde a tal apercibimiento, el tribunal procederá a
imponer sanciones al abogado o la abogada de la parte
y se notificará directamente a la parte sobre la
situación. Luego de que la parte haya sido debidamente
informada o apercibida de la situación y de las
consecuencias que pueda tener el que ésta no sea
corregida, el tribunal podrá ordenar la desestimación
del pleito o la eliminación de las alegaciones. El tribunal
concederá a la parte un término de tiempo razonable
para corregir la situación, que en ningún caso será
menor de treinta (30) días, a menos que las
circunstancias del caso justifiquen que se reduzca el
término.
Es menester enfatizar que, la facultad que concede la Regla
39.2 de Procedimiento Civil, supra, debe ser ejercitada después de
un sereno y cuidadoso escrutinio, en casos en los cuales no hay
duda de la irresponsabilidad y contumacia de la parte contra quien
se toman las medidas drásticas. [CITATION] Además, no sin antes apercibir
a la representación legal de la parte correspondiente y de concederle
la oportunidad de responder. [CITATION] Ante la inacción de la parte en
respuesta al apercibimiento, el tribunal impondrá sanciones y
notificará sobre el asunto directamente a la parte, con el debido
apercibimiento de los efectos que su incumplimiento conlleva. [CITATION]
Cumplido dicho trámite, el tribunal estará en posición de imponer
la sanción que corresponda. [CITATION]
Recientemente, en [CITATION], el Tribunal Supremo resolvió que, la
eliminación de las alegaciones como sanción guarda relación con la KLAN202400140
anotación de rebeldía. Ello, en la medida en que, cuando a un
demandado se le eliminan todas sus alegaciones se allana al litigio
instado en su contra, tal cual ocurre cuando un demandado no
contesta la demanda. [CITATION]. Entiéndase que, la rebeldía es una
consecuencia lógica cuando la parte demandada carece de
alegaciones. [CITATION].
Sobre este asunto el Tribunal Supremo abundó que, antes de
anotar la rebeldía -como sanción- el tribunal tiene que evaluar si los
hechos materiales que surgen de la demanda están bien alegados,
si los mismos proceden como cuestión de derecho y si carecen de
alegaciones concluyentes. [CITATION]. Con el fin de poder dictar sentencia en
rebeldía, conforme a derecho, el tribunal puede exigir que la parte
demandante presente prueba sobre los elementos de la causa de
acción. [CITATION].
B. Notificación de órdenes
Como se sabe, y atinente al recurso de epígrafe, es preciso
señalar que, en cuanto a las notificaciones de órdenes, resoluciones
y sentencias cuando a una parte se le ha anotado la rebeldía, la
Regla 65.3(a) de Procedimiento Civil, 32 LPRA Ap. V, R. 65.3(a)
establece que, el Secretario o Secretaria debe notificar el archivo en
autos de copia del dictamen “a todas las partes que hayan
comparecido en el pleito”. La notificación debe realizarse de
conformidad con la Regla 67.1 de Procedimiento Civil, 32 LPRA Ap.
V, R. 67.1, la cual dispone: “[t]oda orden emitida por el tribunal y
todo escrito presentado por las partes será notificado a todas las
partes. La notificación se efectuará el mismo día en que se emita la
orden o se presente el escrito”. Sobre este tema, el Tribunal Supremo
de Puerto Rico ha expresado que, la notificación adecuada de una
orden a las partes “es parte integral de la actuación judicial y afecta
el estado procesal del caso”. [CITATION].
====== End of the Court Ruling ====== KLAN202400140
La notificación y el archivo en autos de una copia de la
notificación de un dictamen resulta ser una etapa crucial del
proceso adjudicativo. [CITATION]. Este
deber de notificación no constituye un mero requisito impuesto por
las Reglas de Procedimiento Civil, sino del debido proceso de ley. Íd.
Por eso, la correcta y oportuna notificación de las órdenes y
sentencias es un requisito sine qua non de un ordenado sistema
judicial. [CITATION].
Su omisión puede conllevar graves consecuencias, además de crear
demoras e impedimentos en el proceso judicial. Íd.
[SEGMENT 3]
Cabe puntualizar que, la notificación adecuada a las partes es
parte integral de una acción judicial y tiene que ser emitida por un
tribunal con jurisdicción para que el dictamen a notificar surta
efecto. [CITATION], supra. Es a partir de la
notificación que comienzan los términos establecidos. Íd. Por tanto,
de no notificarse adecuadamente la resolución, orden o sentencia,
esta no surte efecto y los términos no comienzan a cursar. Íd.
En lo atinente al caso de marras, nuestro más Alto Foro
dispuso en [CITATION] que, previo
a imponer una sanción tan drástica como lo es la eliminación de las
alegaciones o la desestimación de una causa de acción, el tribunal
tiene que apercibir directamente a la parte sobre el incumplimiento
de su representante legal con las órdenes del tribunal y de las
consecuencias de ello, independientemente de que la parte sea una
persona natural o jurídica.
III.
En su recurso, la Corporación RRG argumenta que el foro de
instancia erró al dictar sentencia en su contra en rebeldía. Ello, a
pesar de que, en estricto derecho, procedía ser relevada de la
rebeldía porque presuntamente no fue debidamente notificada de KLAN202400140
los dictámenes del TPI relacionados a la imposición de la rebeldía.
Señala que, al así actuar, el TPI violó los principios fundamentales
del debido proceso de ley. A lo antes se añade que, la Corporación
RRG contestó la demanda y sometió el descubrimiento de prueba,
demostrando así su intención de participar activamente en el
proceso legal.
Tras un detenido examen del expediente ante nuestra
consideración, así como de los documentos que surgen del
expediente digital en SUMAC, constatamos que previo a sancionar a
la Corporación RRG con la anotación de rebeldía, el foro primario
emitió dos órdenes de mostrar causa dirigidas a la parte
demandada; apercibió a dicha parte y a su representación legal que
su incumplimiento con las órdenes del tribunal pudiese conllevar la
anotación de la rebeldía, entre otras potenciales sanciones. Luego
impuso una sanción económica a favor de la parte demandante. A
lo anterior se añade que, el foro primario notificó la Orden de Mostrar
Causa fechada el 30 de noviembre de 2021 a las representaciones
legales de ambas partes, así como, directamente a la Corporación
RRG.
Sin embargo, precisamos que, la Minuta de la vista celebrada
el 21 de enero de 2022 no fue notificada en autos. Resulta imperioso
puntualizar que, fue durante dicho señalamiento que, el TPI
sancionó a la parte demandada al anotar la rebeldía a la
Corporación RRG y aumentar la sanción monetaria a $300.00.
Entiéndase que, no obra en el expediente una orden del TPI que
recoja la referida determinación y que haya sido notificada a la
Corporación RRG y a ambas representaciones legales, tal cual lo
exigen las normas aplicables al debido proceso de ley.
Aun cuando el TPI apercibió la anotación de rebeldía en la
Orden de Mostrar Causa notificada el 30 de noviembre de 2021,
posteriormente notificó una Orden el 18 de marzo de 2022 en la cual KLAN202400140
informó la transferencia de la vista en rebeldía para el 12 de mayo
de 2022, ello no subsana el hecho de que el foro primario no notificó
a la Corporación RRG ni a su representante legal el dictamen por el
cual la sanción de eliminar las alegaciones mediante la anotación de
la rebeldía a la parte demandada. Incluso, en la referida Orden de
18 de marzo de 2022, el TPI tampoco hizo alusión al aumento en la
sanción de $150.00 a $300.00, por lo que, la Corporación RRG ni
su representación legal fueron debidamente notificados para dar
cumplimiento a la misma.
Cabe puntualizar que, la Regla 45.1 de las Reglas de
Procedimiento Civil, [CITATION], versa sobre la
anotación de rebeldía, y dispone en su última oración que, la
omisión de anotar la rebeldía no afectará la validez de una sentencia
dictada en rebeldía. A poco examinar parecería que, dicha regla
permite obviar la notificación de una anotación de rebeldía en la que
se eliminan las alegaciones, como sanción previa a, dictar una
sentencia en rebeldía. Sin embargo, nuestro análisis, tanto de la
Regla 45.1 como de la Regla 39.2 (a), nos lleva a otra conclusión.
De un examen sosegado de dichas disposiciones reconocemos
que, ambas versan sobre la anotación de rebeldía y sus efectos. No
obstante, la anotación de rebeldía relacionada a la sanción de
eliminación de alegaciones ante incumplimientos con órdenes del
tribunal, más bien se da dentro del contexto de sanciones
progresivas en donde el legislador específicamente dispuso que, la
notificación es requerida, primero a la representación legal y luego
directamente a la parte. De hecho, como se sabe, nuestro Alto Foro
así lo ha reiterado mediante la jurisprudencia antes citada.
Distinto es el escenario en donde el tribunal deja de anotar
una rebeldía, previo a dictar una sentencia en rebeldía por falta de
contestación a una demanda, conforme a lo expuesto en la Regla
45.1, supra. Mediante un buen ejercicio de hermenéutica colegimos KLAN202400140
que, la interrelación y propósito de ambas disposiciones procesales
ciertamente versan sobre la anotación de rebeldía y sus efectos. Sin
embargo, la eliminación de las alegaciones de una parte demandada
-como sanción- mediante la anotación de rebeldía, se da en el
contexto de sanciones progresivas cuya notificación está
expresamente estatuida en la Regla 39.2(a), [CITATION]. En su
consecuencia y según la normativa antes expuesta, la falta de
notificación impide que las órdenes judiciales surtan efecto. Por
ello, concluimos que, en este caso, la falta de notificación de la
determinación decretando la eliminación de las alegaciones y al
aumento de la sanción monetaria derrota la eficacia del dictamen
apelado.
Al amparo de las disposiciones relacionadas al debido proceso
de ley, ante la falta de notificación de la minuta resolución emitida
el 21 de enero de 2023, nos vemos en la obligación de dejar sin efecto
el dictamen apelado.
IV.
Por los fundamentos antes expuestos, revocamos la Sentencia
en rebeldía apelada y devolvemos al caso al TPI para la continuación
de los procedimientos, conforme a lo aquí resuelto.
Lo acordó el Tribunal y lo certifica la Secretaria del Tribunal
de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL XI
ANGEL ORTIZ ROSA Apelación
procedente del
Apelante Tribunal de Primera
Instancia, Sala
v. Superior de Fajardo
ESTADO LIBRE KLAN202400307 Caso Núm.:
ASOCIADO DE PUERTO FA2022CV00470
RICO
Sobre: DAÑOS Y
Apelados PERJUICIOS
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de mayo de 2024.
Comparece ante nos, el apelante el señor Ángel Ortiz Rosa
(señor Ortiz Rosa) mediante el recurso de Apelación. Nos solicita la
revocación de la Sentencia emitida el 26 de enero de 2024 y
notificada el 29 de enero de 2024, por el Tribunal de Primera
Instancia, Sala Superior de Fajardo (TPI). Mediante el referido
dictamen, el foro primario desestimó la Demanda instada por el
apelante de conformidad a la Regla 39.2(b) de Procedimiento Civil.
Por los fundamentos expuestos a continuación, revocamos la
Sentencia apelada.
I.
El 5 de mayo de 2022, el señor Ortiz Rosa instó una Demanda
de daños y perjuicios en contra del Estado Libre Asociado de Puerto
Rico (ELA), la Autoridad de Carreteras y Trasportación de Puerto
Rico (ACT), el Departamento de Transportación y Obras Públicas
(DTOP), y el Municipio Autónomo de Fajardo (Municipio), entre
otros.1 En ajustada síntesis, alegó que el 11 de mayo de 2021 sufrió
[SEGMENT 4]
1 Apéndice de Apelante, págs. 1-3.
Número Identificador
SEN2024__________________ KLAN202400307
un accidente vehicular por la falta de iluminación e inobservancia
de aviso respecto a una excavación realizada en la Carretera Número
53 de Fajardo. Como consecuencia, detalló que sufrió daños en su
espalda, en particular, en el área lumbar y cervical. A raíz de dicha
situación, señaló que ha recibido terapias físicas, sin embargo, su
dolor no ha minimizado. Por lo anterior, solicitó $77,002.00 en
concepto de daños físicos, angustias mentales y daños provocados
a su vehículo de motor.
En respuesta, el 28 de septiembre de 2022, la Autoridad de
Carreteras y Transportación presentó su Contestación a Demanda.[CITATION]
En esencia, señaló que la Demanda no aduce hechos que justifiquen
la concesión de un remedio. Arguyó que la causa de acción se
encuentra total o parcialmente prescrita. En vista de lo anterior,
peticionó que el tribunal declarase No Ha Lugar la Demanda con la
imposición correspondiente de gastos, costas y honorarios.
Por su parte, el 30 de septiembre de 2022, el Municipio de
Fajardo sometió una Solicitud de Desestimación de la Demanda, en
cuanto al Municipio de Fajardo, por Incumplimiento del Demandante
con el Artículo 1.051 del Código Municipal.[CITATION] En dicho escrito, expuso
que el demandante no le remitió una notificación extrajudicial como
condición previa para reclamar judicialmente. Por tanto, sostuvo
que el tribunal carece de jurisdicción sobre la materia. Solicitó la
desestimación del reclamo instado en su contra. Consecuentemente,
el foro primario concedió el término de veinte (20) días para que el
demandante presentara su posición.
Así las cosas, el 22 de octubre de 2022, el Apelante presentó
Moción Solicitando Tiempo Adicional para Contestar Moción
Solicitando Desestimación.[CITATION] En ésta, su representante legal indicó
que enfrentaba una delicada situación de salud. Por lo que, solicitó
[CITATION] KLAN202400307
un término de veinte (20) días para cumplir con lo ordenado.
Evaluada su petición, el tribunal concedió el término solicitado.
En cumplimiento con lo ordenado, el 20 de diciembre de 2022,
la parte demandante presentó una Moción en Oposición a Moción de
Desestimación.[CITATION] En ésta, alegó que el requisito de notificación ha
sido eximido en determinadas situaciones. En particular,
argumentó que como se encuentra en tratamiento, éste dispone del
término de treinta (30) para notificar una vez culmine dicho
procedimiento a tenor con el Artículo 15.003 de la Ley Núm. 81.
Examinados los argumentos, el 23 de noviembre de 2023, el foro
primario dictó Sentencia Parcial en la cual desestimó el reclamo
contra el Municipio por incumplimiento de notificación
extrajudicial.[CITATION]
Eventualmente, el 19 de diciembre de 2022, el Apelante
sometió una Moción de Renuncia a Representación Legal.[CITATION] En lo
atinente, su abogado solicitó la renuncia por motivo de su delicada
condición de salud. Requirió, además, un término de treinta (30)
días para que su cliente obtuviera nueva representación legal. Ese
mismo día, el tribunal declaró Ha Lugar su petición.[CITATION] En efecto, el
10 de enero de 2023, la parte demandante presentó una Moción
Solicitando Término para Contratar Abogado debido a que el periodo
navideño impidió finalizar los trámites de contratación de abogado.[CITATION]
Ante tales circunstancias, peticionó treinta (30) días adicionales. En
efecto, el foro primario concedió diez (10) días adicionales para
anunciar nueva representación legal.[CITATION] En vista de ello, el 24 de
enero de 2023, el demandante presentó Moción Asumiendo
Representación Legal y Solicitud de Vistas sobre el Estado de los
[CITATION] KLAN202400307
Procedimientos.[CITATION] En esa misma fecha, el TPI notificó la aceptación
de su representante legal actual.
El 29 de junio de 2023, el foro primario emitió una Orden,
notificada el 30 de junio de 2023, en la cual requirió que en el
término de diez (10) días la parte demandante informara sobre el
estado del caso.
Sin comparecer aún el demandante, el 13 de julio de 2023, el
tribunal apelado dictó una Orden, notificada el 17 de julio de 2023.[CITATION]
Mediante ese dictamen, le requirió que en el término de diez (10)
días contados a partir de la notificación, expusiera por escrito las
razones por las cuales no desestimar el presente caso a tenor con la
Regla 39.2(a) de Procedimiento Civil.
Al día siguiente, entiéndase, el 18 de julio de 2023, el
demandante presentó una Moción en Cumplimiento de Orden.[CITATION]
Argumentó que su inactividad responde a los trámites
extrajudiciales relacionados con el descubrimiento de prueba.
Informó que aguarda aún la celebración de la vista solicitada para
atender el estado de los procedimientos. A su vez, peticionó que el
tribunal no desestimara su reclamación judicial. Evaluada su
moción, el 18 de julio de 2023, el TPI emitió una Orden con la
siguiente indicación:
SE SEÑALA VISTA DE ESTADO DE PROCEDIMIENTOS
PARA EL 22 DE ENERO DE 2024 A LAS 11AM
MEDIANTE VIDEOCONFERENCIA.[CITATION]
No obstante, el 22 de enero de 2023, el foro primario motu-
proprio dejó sin efecto el señalamiento calendarizado.[CITATION] Como
resultado, el 13 de febrero de 2024 emitió y notificó Sentencia en la
cual desestimó la Demanda a tenor con la Regla 39.2(b) de
[CITATION] KLAN202400307
Procedimiento Civil.[CITATION] En lo pertinente, el TPI esbozó el siguiente
razonamiento:
El 17 de julio de 2023 se emitió orden bajo la Regla
.2(a) mediante la cual se le concedió un término de
días a la parte demandante para que expusiera por
escrito las razones por las cuales no se debía desestimar
el caso. El 18 de julio de 2023 el representante legal de
la parte demandante presento una Moción en
Cumplimiento de Orden mediante la cual solicitó que
no se desestimara el caso y solicitando el señalamiento
de una vista sobre el estado de los procedimientos. Ese
mismo día se señaló la vista solicitada para el 22 de
enero de 2024. Luego de seis meses sin actividad en el
presente caso este Tribunal procede a realizar una
determinación al amparo de la Regla 39.2(b) de
Procedimiento Civil.[CITATION]
[…]
No existe duda que estamos ante un caso para el cual
el periodo de inactividad de seis meses contemplado por
la Regla 39.2(b) transcurrió. Este Tribunal ya había
emitido orden a la parte demandante para que
expresara sus razones por las cuales no se debía
desestimar el caso bajo la Regla 39.2(a), ya que no se
había realizado trámite alguno desde que asumió
representación legal el nuevo abogado de la parte
demandante. La parte demandante se expresó mediante
Moción en Cumplimiento de Orden, pero pasaron seis
meses sin que se hubiera efectuado trámite alguno.[CITATION]
En virtud de lo anterior, decretó que procedía la desestimación
con perjuicio de conformidad a la Regla 39.2(b) de Procedimiento
Civil. Oportunamente, el 13 de enero de 2024, la parte demandante
presentó Reconsideración.[CITATION] En su escrito, señaló que el 22 de enero
de 2024, el foro primario dejó sin efecto motu-proprio la celebración
de la vista. También, puntualizó que siete (7) días después dictó
sentencia desestimatoria. Argumentó que la referida desestimación
no fue precedida por los apercibimientos o los requisitos procesales
impuestos por la Regla 39.2(a) de Procedimiento Civil. En vista de
ello, sostuvo que el tribunal infringió su debido proceso de ley. Luego
de evaluar sus planteamientos, el 29 de enero de 2024, el TPI emitió
[CITATION] KLAN202400307
[SEGMENT 5]
una Orden declarando No Ha Lugar la reconsideración
peticionada.20
Inconforme, el 1 de abril de 2024, el señor Ortiz Rosa acude
ante nos mediante un Escrito de Apelación Civil. En su recurso,
presenta el siguiente señalamientos de error:
ERRÓ EL TPI AL DISPONER COMO DRÁSTICA
SANCIÓN DICTAR SENTENCIA CON PERJUICIO EN
INOBSERVANCIA DEL PROCEDIMIENTO
DISPUESTO EN LA REGLA 39.2(A), 32 L.P.R.A. AP.
V. R. 39.2(A) Y LA NORMATIVA JURISPRUDENCIAL
VIGENTE QUE REGULA CÓMO SANCIONAR EL
INCUMPLIMIENTO DE LAS ÓRDENES JUDICIALES.
Examinada la petición presentada, le requerimos a la parte
apelada someter su alegato en oposición. En cumplimiento con lo
ordenado, el 18 de abril de 2023, la Autoridad de Carreteras y
Transportación presentó su Oposición a Apelación. Por su parte, el
29 de abril de 2024, el Gobierno de Puerto Rico en representación
de la ACT sometió un escrito intitulado Comparecencia Especial sin
someterse a la jurisdicción. En éste, argumentó que la parte
demandante no le emplazó correctamente. Por tanto, solicitó que le
relevaran de presentar su oposición. Con el beneficio de la
comparecencia de las partes, procedemos a resolver.
II.
A. Desestimación por incumplimiento de orden de conformidad
a la Regla 39.2(a) de Procedimiento Civil
Nuestro ordenamiento jurídico favorece la ventilación de los
casos en sus méritos. [CITATION], 124 (1992). No obstante, una parte no tiene derecho a
prolongar la vida de su caso “sin más excusa para su falta de
diligencia e interés en la tramitación del mismo que una escueta
referencia a circunstancias especiales”. [CITATION], 816 (1986). En tales escenarios, los tribunales
20 Íd., pág. 51. KLAN202400307
ostentan la facultad “para imponer una serie de sanciones contra
aquella parte que incumpla una orden del tribunal”. [CITATION]
En particular, la Regla 39.2(a), 32 LPRA Ap. V, R. 39.2(a),
preceptúa el procedimiento para atender el incumplimiento con
órdenes del tribunal:
(a) Si la parte demandante deja de cumplir con estas
reglas o con cualquier orden del tribunal, el tribunal a
iniciativa propia o a solicitud de la parte demandada
podrá decretar la desestimación del pleito o de cualquier
reclamación contra ésta o la eliminación de las
alegaciones, según corresponda. Cuando se trate de un
primer incumplimiento, la severa sanción de la
desestimación de la demanda o la eliminación de las
alegaciones tan sólo procederá después que el tribunal,
en primer término, haya apercibido al abogado o
abogada de la parte de la situación y se le haya
concedido la oportunidad para responder. Si el abogado
o abogada de la parte no responde a tal apercibimiento,
el tribunal procederá a imponer sanciones al abogado o
abogada de la parte y se notificará directamente a la
parte sobre la situación. Luego de que la parte haya sido
debidamente informada o apercibida de la situación y
de las consecuencias que pueda tener el que la misma
no sea corregida, el tribunal podrá ordenar la
desestimación del pleito o la eliminación de las
alegaciones. El tribunal concederá a la parte un término
de tiempo razonable para corregir la situación que en
ningún caso será menor de treinta (30) días, a menos
que las circunstancias del caso justifiquen que se
reduzca el término.
Este mecanismo procesal procura que una parte responda
prontamente con el fin de alcanzar la solución justa, rápida y
económica de los casos y que las controversias se puedan atender
en los méritos. [CITATION] Véase, también, [CITATION]
La precitada regla fija un proceso de notificaciones y
apercibimientos previo a la desestimación del caso. Ante un contexto
que amerite la imposición de sanciones, el tribunal debe amonestar
primeramente al abogado de la parte. [CITATION] Ahora bien, no podrá imponer sanciones
drásticas cuando “la parte que ejercita su derecho en corte no está KLAN202400307
informada de los trámites rutinarios”. [CITATION], supra, pág. 814; [CITATION], 85
DPR 823, 830 (1962). Si la acción disciplinaria no produce efectos
positivos, entonces procede la desestimación de la demanda o la
eliminación de las alegaciones, siempre y cuando la parte haya sido
debidamente informada y apercibida de las consecuencias que
acarrea el incumplimiento. [CITATION], supra; [CITATION], supra, págs. 222-22.
B. Desestimación por inactividad de conformidad a la Regla
39.2(b) de Procedimiento Civil
La Regla 39.2(b) de Procedimiento Civil, 32 LPRA Ap. V, R.
39.2(b), permite la desestimación de la causa de acción cuando las
partes en un término de seis (6) meses no han efectuado trámite
alguno. A esos fines, la precitada disposición establece:
(b) El tribunal ordenará la desestimación y el archivo de
todos los asuntos civiles pendientes en los cuales no se
haya efectuado trámite alguno por cualquiera de las
partes durante los últimos seis meses, a menos que tal
inactividad se le justifique oportunamente. Mociones
sobre suspensión o transferencia de vista o de prórroga
no serán consideradas como un trámite a los fines de
esta regla. El tribunal dictará una orden en todos dichos
asuntos, la cual se notificará a las partes y al abogado
o abogada, requiriéndoles dentro del término de diez
(10) días desde que el Secretario o Secretaria les
notifique, que expongan por escrito las razones por las
cuales no deban desestimarse y archivarse los mismos.
32 LPRA Ap. V, R. 39.2(b).
Una desestimación por inactividad tendrá el efecto de una
adjudicación en los méritos. [CITATION], 130 DPR 730, 738 (1992). Cuando la sentencia dictada
advenga final y firme, constituirá cosa juzgada y le cerrará las
puertas a la parte perjudicada para instar casos subsiguientes por
los mismos hechos o las causas de acción. [CITATION], 177 DPR 714, 721 (2009).
En escenarios ocasionados por inactividad, el Tribunal
Supremo de Puerto Rico ha sido enfático en imponer remedios
alternos previo a la desestimación: KLAN202400307
Planteada una situación que amerita sanciones, el
tribunal debe, en primera instancia, imponerlas al
abogado de la parte. Si dicha acción disciplinaria no
surte efectos positivos, procederá la imposición severa
de la desestimación de la demanda o eliminación de las
alegaciones únicamente después que la parte haya sido
propiamente informada y apercibida de la situación y
de las consecuencias que pueda tener el que la ésta no
sea corregida. [CITATION], págs. 222-223; [CITATION],
113 DPR 494, 498 (1982).
Cónsono con lo anterior, “la privación a un litigante de su día
en corte es una medida procedente solo en casos extremos”. [CITATION], 158 DPR 775, 780 (2003). La normativa esbozada
permite “que los tribunales atemperen su aplicación frente a la
política pública de que los casos se ventilen en sus méritos”. [CITATION], supra, pág. 721.
III.
En el caso presente, el señor Ortiz Rosa alega que incidió el
Tribunal de Primera Instancia al desestimar su causa de acción civil.
Sostiene que la desestimación con perjuicio infringe su debido
proceso de ley y le priva de su día en corte. Señala que previo a
decretar la sanción extrema, el foro primario debió emitir un
apercibimiento e imponer una sanción a su representante legal.
Tras evaluar sosegadamente el expediente ante nuestra
consideración, concluimos que erró el tribunal apelado al
dictaminar la desestimación con perjuicio de la Demanda instada
por la parte apelante. El foro primario debió emplear la
desestimación como último recurso. Le correspondía imponer una
sanción menos drástica a los fines de garantizar la ventilación del
[SEGMENT 6]
caso en sus méritos. Veamos.
En primer lugar, hacemos referencia a las particularidades de
este caso. En específico, 14 de diciembre de 2022, el licenciado
Freddie Blondet Gutiérrez, quien era abogado del señor Ortiz Rosa,
presentó su Moción de Renuncia a Representación Legal debido a su KLAN202400307
crítico estado de salud. Ante tales circunstancias, el 24 de enero de
2023, el TPI aceptó que el licenciado Luis E. Pinto Andino asumiera
la representación legal del demandante.
Transcurrido un término de seis meses, el 29 de junio de
2023, el foro primario emitió una Orden, notificada el 30 de junio de
2023, en la cual exclusivamente requirió a la parte demandante
informar el estado del presente caso en el término de diez (10) días.
En vista de que el apelante no cumplió con el referido dictamen, el
17 de julio de 2023, el tribunal apelado emitió una Orden al amparo
de la Regla 39.2(a) de Procedimiento Civil. En ésta, requirió que
expusiera sus razones por las cuales no deba desestimar su caso.
Cabe destacar que, dicho dictamen no incluye un apercibimiento
sobre futura sanción o una notificación sobre la posibilidad de una
desestimación. Tampoco la determinación presenta un
pronunciamiento que concediera a la parte un término razonable de
treinta (30) días para corregir la situación de incumplimiento, tal
como prescribe la aludida regla.
Al día siguiente, el 18 de julio de 2023, el señor Ortiz Rosa
expuso que la inactividad responde a los trámites extrajudiciales
relacionados con el descubrimiento de prueba. Así las cosas, el
tribunal decretó la celebración de una vista el 22 de enero de 2024.
Sin embargo, llegado ese día, el tribunal dejó sin efecto
automáticamente la vista calendarizada. Con posterioridad,
desestimó la causa de acción mediante un análisis mecanicista de
conformidad a la Regla 39.2(b) de Procedimiento Civil.
Recordemos, pues, que la precitada regla exige que previo a
desestimar por inactividad se conceda un término de diez (10) a la
parte demandante para expresar por escrito las razones por las
cuales no desestimar. Incluso, luego de ese procedimiento, se
favorece decretar acciones menos severas como la imposición
sanciones al representante legal o la eliminación de alegaciones KLAN202400307
siempre y cuando la parte haya sido informada y apercibida de la
situación. Véase, [CITATION], supra, págs.
222-223; [CITATION].
Sin embargo, no surge del expediente que el TPI haya
notificado directamente a la parte apelante sobre el asunto de
inactividad a tenor con la Regla 39.2(b) de Procedimiento Civil.
Tampoco, impuso sanciones directas a su representante legal.
Meramente fundamentó la decisión desestimatoria en el
procedimiento decretado en la Orden emitida el 17 de julio de 2023
a tenor con la Regla 39.2(a) de Procedimiento Civil. En tal dictamen,
el foro de instancia requirió al demandante a comparecer en el
término de diez (10), tal como lo hizo. No obstante, dicho proceder
resulta insuficiente para desestimar la causa de acción.
Correspondía adoptar un trámite judicial que garantizara el debido
proceso de ley, y consecuentemente, no privara al demandante de
su día en corte.
Una lectura detenida de la Sentencia desestimatoria corrobora
que el señor Rosa Ortiz no estuvo apercibido respecto a la situación
de inactividad del caso y a sus posibles consecuencias a tenor con
la Regla 39.2(b) de Procedimiento Civil. En vista de lo anterior,
resulta forzoso concluir que incidió el TPI al desestimar la
reclamación judicial sin siquiera notificar al Apelante ni imponer
sanciones a su representante legal como medida menos drástica. En
aras de favorecer la ventilación de los casos en sus méritos,
revocamos el dictamen apelado.
IV
Por las razones que anteceden, revocamos la Sentencia
apelada. The provided text does not contain any court ruling citations that need to be replaced. The text appears to be procedural and administrative in nature, without references to specific legal cases by name or number aside from the court document's docket number.
Hence, no modifications are necessary for this part of the court ruling.
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
RADAMÉS JORDÁN CERTIORARI
ORTIZ procedente del
Peticionario Tribunal de
Primera Instancia,
v. Sala Superior de
FAJARDO
CONSEJO DE [CITATION]
TITULARES DEL Caso número:
CONDOMINIO DOS FAC2022CV00605
MARINAS I IN SERVICIO
LLC., LAS Sobre: DAÑOS Y
CORPORACIONES PERJUICIOS
DESCONICODAS A, B, C
Y LAS ASEGURADORAS
DESCONOCIDAS
Recurridos
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de mayo de 2024.
Comparece ante nos In-Servicio, LLC (peticionario) mediante
el recurso de Certiorari. Nos solicita la revocación de una Orden
emitida el 19 de marzo de 2024, por el Tribunal de Primera Instancia
(TPI), Sala Superior de Fajardo. Mediante el referido dictamen, el
foro primario dejó sin efecto una Orden que concedía una prórroga
a favor de la parte peticionaria bajo el fundamento de que existe una
anotación de rebeldía dictada en su contra.
Por los fundamentos que expondremos a continuación,
expedimos el auto de certiorari, y confirmamos el dictamen recurrido.
I.
La génesis de este caso se remonta a la presentación una
Demanda de daños y perjuicios instada por el señor Radamés
Jordán Ortiz (recurrido) en contra de In-Servicio L.L.C (In-Servicio)
y el Consejo de Titulares del Condominio Dos Marinas I (Consejo),
Número Identificador
SEN2024 _______________ KLCE202400410
entre otros.1 En esencia, el demandante alegó que su apartamento
presenta múltiples estructuras destrozadas por las actuaciones
ocasionadas por la parte demandada durante un proceso de
reparación de la tubería central del Condominio. En vista de los
anterior, solicitó $250,000.00 por los daños a la propiedad y las
angustias mentales experimentadas.
Posteriormente, el 9 de agosto de 2022, la parte recurrida
emplazó a la parte peticionaria.2 Sin embargo, ante su
incomparecencia, el TPI le anotó la rebeldía a solicitud de la parte
demandante.3 El 23 de febrero de 2023, el foro primario emitió una
Sentencia en rebeldía en la cual condenó a la parte peticionaria al
pago de $250,000.00 en concepto de daños y angustias mentales
por la privación de la propiedad y el destrozo de su estructura.4
Tras varios acontecimientos procesales, el 31 de octubre de
2023, In-Servicio acudió ante nos mediante un recurso de apelación.
Evaluados sus argumentos, el 20 de diciembre de 2023, emitimos
una Sentencia consolidada con el recurso apelativo presentado por
el Consejo.5 Mediante la referida determinación, revocamos el
dictamen apelado al amparo de la Regla 49.2 de Procedimiento
Civil.6 En síntesis, decretamos que la Sentencia apelada es nula por
no haberse diligenciado el emplazamiento del Consejo.
Ante tales circunstancias, el 15 de febrero de 2024, el señor
Jordán Ortiz presentó una Demanda Enmendada con idénticas
alegaciones a la reclamación judicial instada con anterioridad.7
1 Surge del expediente apelativo que la aludida demanda se presentó el 16 de junio
de 2022. Véase Apéndice de peticionario, págs. 1-4.
2 Apéndice del recurrido, págs. 1-3.
3 Apéndice del recurrido, págs. 4-5.
4 Apéndice de peticionario, pág. 5-8.
5 La asignación alfanumérica de la mencionada determinación apelativa es
[CITATION]
6 Véase Sentencia emitida por el Tribunal de Apelaciones el 20 de diciembre de
[SEGMENT 7]
2023 correspondiente a la designación alfanumérica de los casos consolidados
[CITATION]
7 Apéndice de peticionario, págs. 61-64. KLCE202400410
Así las cosas, In-Servicio presentó una Moción Informativa y
en Solicitud de Prórroga.8 En este escrito, solicitó un término de
treinta (30) días para contestar la Demanda o presentar cualquier
tipo de moción dispositiva. Evaluada su petición, el TPI dictaminó
una Orden, notificada el 27 de febrero de 2024, en la cual concedió
la prórroga.9 No obstante, al día siguiente, la parte recurrida
presentó una Moción en Oposición a Prórroga e Informativa y Solicitud
de Reconsideración.10 En esta, arguyó que a pesar de que el tribunal
intermedio declaró nula la Sentencia, nunca se dejó sin efecto la
rebeldía impuesta contra la parte peticionaria.
Ante tales planteamientos, In-Servicio sometió una Breve
Moción sobre Réplica a Moción de Desglose.11 En este escrito,
argumentó que tras el foro apelativo decretar nulidad de la
determinación apelada, le corresponde al demandante volver a
emplazar y acoger los términos aplicables a la contestación de
demanda y descubrimiento de prueba. Señaló, además, que el
demandante erra al interpretar que el dictamen apelativo no le
concedió remedio alguno a In-Servicio. Por su parte, el demandante
presentó una Dúplica a Réplica a Oposición a Moción de Prórroga e
Informativa y Solicitud de Reconsideración. En esta, reiteró que
forzosamente la anotación de rebeldía se mantiene al no ser objeto
de la determinación del Tribunal de Apelaciones.
Evaluadas las múltiples mociones presentadas en torno a esta
controversia,12 19 de marzo de 2024, el foro a quo emitió una Orden
en la cual declaró Ha Lugar la solicitud del señor Jordán Ortiz.13
8 Apéndice de peticionario, pág. [CITATION].
9 Apéndice de peticionario, pág. [CITATION].
10 Apéndice de peticionario, págs., [CITATION].
11 Apéndice de peticionario, págs., [CITATION].
12 Apéndice de peticionario, págs., [CITATION].
13 Apéndice de peticionario, pág. [CITATION]. KLCE202400410
Inconforme con dicha determinación, el 10 de abril de 2024,
In-Servicio acudió ante nos mediante un recurso de Certiorari y
señaló la comisión del siguiente error:
ERRÓ EL HONORABLE TRIBUNAL DE PRIMERA
INSTANCIA AL MANTENER LA REBELDÍA CONTRA
LA PARTE COMPARECIENTE, A PESAR DEL FORO
APELATIVO HABER DECLARADO NULA LA
SENTENCIA DE INSTANCIA, TENIENDO LA
COMPARECIENTE DEFENSAS VÁLIDAS Y NO
CAUSANDO PERJUICIO ALGUNO A LA PARTE
DEMANDANTE.
En el ínterin, el 24 de abril de 2024, el tribunal recurrido
emitió una Orden Emendada, notificada el 29 de abril de 2024, con
el siguiente pronunciamiento:
Se enmienda la Orden del 19 de marzo de 2024 para
que exprese que se declaro Ha Lugar la reconsideración
presentada por la parte demandante y se deja sin efecto
la Orden concediéndole una prórroga a la demandada
In Servicio, LLC para contestar la demanda enmendada.
A la demandada In Servicios, LLC se le anotó la rebeldía
el 14 de octubre de 2022. Aun cuando el Tribunal de
Apelaciones revocó la sentencia en rebeldía emitida por
este Tribunal, no resolvió ni determinó nada sobre la
anotación de rebeldía de la codemandada In Servicios,
LLC.[CITATION]
El 6 de mayo de 2024, este Tribunal emitió una Resolución en
la cual ordenó a la parte recurrida a presentar su posición. En
cumplimiento con lo ordenado, el señor Jordán Ortiz sometió su
Oposición a Expedición de Certiorari.
Con el beneficio de la comparecencia de ambas partes,
procedemos a discutir el marco legal aplicable a la controversia ante
nuestra consideración.
II.
A. Recurso de certiorari
Como es sabido, el certiorari es un recurso extraordinario
mediante el cual un tribunal de jerarquía superior puede revisar a
su discreción una determinación de un tribunal inferior.
[CITATION] KLCE202400410
[CITATION]. Véase, también, Artículo 670 del Código de
Enjuiciamiento Civil de 1933, conocido como Ley de Recursos
Extraordinarios, 32 LPRA sec. 3491. La característica distintiva de
este recurso “se asienta en la discreción encomendada al tribunal
revisor para autorizar su expedición y adjudicar sus méritos”. [CITATION], preceptúa las instancias que activan nuestras facultades
revisoras ante resoluciones u órdenes interlocutorias:
El recurso de certiorari para revisar resoluciones u
órdenes interlocutorias dictadas por el Tribunal de
Primera Instancia, solamente será expedido por el
Tribunal de Apelaciones cuando se recurra de una
resolución u orden bajo las Reglas 56 y 57 o de la
denegatoria de una moción de carácter dispositivo. No
obstante, y por excepción a lo dispuesto anteriormente,
el Tribunal de Apelaciones podrá revisar órdenes o
resoluciones interlocutorias dictadas por el Tribunal de
Primera Instancia cuando se recurra de decisiones
sobre la admisibilidad de testigos de hechos o peritos
esenciales, asuntos relativos a privilegios evidenciarios,
anotaciones de rebeldía, en casos de relaciones de
familia, en casos que revistan interés público o en
cualquier otra situación en la cual esperar a la
apelación constituiría un fracaso irremediable de la
justicia. Al denegar la expedición de un recurso de
certiorari en estos casos, el Tribunal de Apelaciones no
tiene que fundamentar su decisión. Regla 52.1 de
Procedimiento Civil, supra. (Énfasis suplido).
En lo pertinente, en [CITATION], el Tribunal Supremo de Puerto Rico
resolvió que los foros apelativos tienen jurisdicción para revisar
interlocutoriamente las anotaciones de rebeldía:
Ante un error cometido por el tribunal al anotar la
rebeldía, la parte afectada tiene el derecho de
solicitar que se levante tal rebeldía por no haberse
cumplido con la citada Regla 45.1 de Procedimiento
Civil. Una denegatoria a esa solicitud conllevaría,
conforme al texto de la referida regla, el que se revise en
certiorari e interlocutoriamente la denegatoria del KLCE202400410
tribunal de levantar tal anotación de rebeldía. Por otro
lado, la inacción o denegatoria del tribunal para anotar
la rebeldía equivaldría a su incumplimiento con lo
dispuesto en la Regla 45.1. Por lo tanto, y
nuevamente según el texto de la Regla 52.1 de
Procedimiento Civil, supra, la parte tendría el
derecho a que discrecionalmente el Tribunal de
Apelaciones revisara interlocutoriamente tal error o
inacción. (Énfasis suplido).
Ahora bien, aun cuando al amparo de la Regla 52.1 de
Procedimiento Civil, supra, ostentamos jurisdicción sobre
determinaciones interlocutorias, “la expedición del auto y la
adjudicación en sus méritos es discrecional”. [CITATION]
De manera similar, la Regla 40 del Tribunal de Apelaciones, 4
LPRA Ap. XXII-B, delimita los criterios para la expedición de un auto
de certiorari:
(A) Si el remedio y la disposición de la decisión
recurrida, a diferencia de sus fundamentos, son
contrarios a derecho.
(B) Si la situación de hechos planteada es la más
indicada para el análisis del problema.
(C) Si ha mediado prejuicio, parcialidad o error craso y
manifiesto en la apreciación de la prueba por el
Tribunal de Primera Instancia.
(D) Si el asunto planteado exige consideración más
detenida a la luz de los autos originales, los cuales
deberán ser elevados, o de alegatos más elaborados.
(E) Si la etapa del procedimiento en que se presenta el
caso es la más propicia para su consideración.
[SEGMENT 8]
(F) Si la expedición del auto o de la orden de mostrar
causa no causan un fraccionamiento indebido del pleito
y una dilación indeseable en la solución final del litigio.
(G) Si la expedición del auto o de la orden de mostrar
causa evita un fracaso de la justicia.
Estas consideraciones orientan la función del foro apelativo
para ejercer sabiamente su facultad discrecional. [CITATION] A su vez, la precitada disposición
reglamentaria permite que el análisis revisorio no se efectúe en el
vacío ni se aparte de otros parámetros al momento de considerar los KLCE202400410
asuntos planteados. [CITATION]
supra; [CITATION]
A la luz de tales preceptos, los tribunales revisores no
debemos intervenir en las determinaciones de hechos del tribunal
de instancia, “salvo que se pruebe que dicho foro actuó con prejuicio
o parcialidad o incurrió en craso abuso de discreción o en error
manifiesto”. [CITATION]
B. La anotación de rebeldía
La anotación de rebeldía es un mecanismo procesal que
procura “disuadir a aquellos que recurran a la dilación de los
procedimientos como una estrategia de litigación”. [CITATION] supra, pág. 587. A esos fines, la Regla 45.1 de
Procedimiento Civil, 32 LPRA Ap. V, R. 45.1, delimita los escenarios
que permiten imponer la anotación de rebeldía:
Cuando una parte contra la cual se solicite una
sentencia que concede un remedio afirmativo haya
dejado de presentar alegaciones o de defenderse en otra
forma según se dispone en estas reglas, y este hecho se
pruebe mediante una declaración jurada o de otro
modo, el Secretario o Secretaria anotará su rebeldía.
En tales instancias, el tribunal puede ordenar la anotación
cuando la parte demandada: (1) no comparece después de haber
sido emplazado, (2) no se defiende mediante moción (3) ni
presenta oportunamente la contestación a la demanda.
[CITATION] supra, pág. 589.
(Énfasis suplido). Asimismo, la imposición de rebeldía ocurre
cuando “una de las partes en el pleito ha incumplido con algún
mandato del tribunal, lo que motiva a éste a imponerle la rebeldía KLCE202400410
como sanción”. [CITATION].
Anotada la rebeldía, se dan por admitidos todos los hechos
bien alegados en la demanda o la alegación que se haya formulado
en contra del rebelde, y se autoriza al tribunal a dictar sentencia, si
esta procede como cuestión de derecho. [CITATION]. Este proceder brinda un remedio
coercitivo contra una parte adversaria a la cual, habiéndosele
concedido la oportunidad de refutar la reclamación, por su
pasividad o temeridad opta por no defenderse. [CITATION].
Ahora bien, los tribunales no son meros autómatas obligados
a conceder indemnizaciones por estar dilucidándose un caso en
rebeldía. [CITATION]. La
anotación de rebeldía se debe dar dentro del marco de lo que es
justo, y la ausencia de tal justicia equivaldría a un abuso de
discreción. [CITATION].
Pese a que la rebeldía constituye un mecanismo procesal
discrecional, ésta no se sostendrá ante el ejercicio burdo o injusto.
[CITATION].
A esos fines, nuestro esquema procesal provee diversas
alternativas para dejar sin efecto una anotación de rebeldía dictada
erróneamente. En primer lugar, la parte interesada puede solicitar
el levantamiento de la anotación al amparo de la Regla 45.1 de
Procedimiento Civil, supra. En [CITATION], el Máximo Foro delineó la siguiente
interpretación en torno a la aludida regla:
[S]i un codemandado a quien se le anota la rebeldía
por alegadamente no haber contestado en el
término, puede probar que sí había contestado y que
la anotación de la rebeldía en su contra obedeció a KLCE202400410
una confusión por parte del Secretario o la
Secretaria ante los múltiples codemandados en el
expediente, su remedio es, de igual manera, solicitar
que se levante la rebeldía por error en la
implementación de la Regla 45.1 de Procedimiento
Civil, supra. Esto es, la parte no dejó de presentar
alegaciones o de defenderse, sino que la anotación
obedeció a un error del tribunal.
En tal circunstancia, el “fundamento en derecho para lograr
tal levantamiento sería el incumplimiento por parte del promovente
con la Regla 45.1 de Procedimiento Civil, supra”. Íd. Esta disposición
procesal no requiere demostrar la existencia de causa justificada.
De no aplicar el análisis anterior, corresponde identificar si
media justa causa para levantar la anotación de conformidad con la
Regla 45.3 de Procedimiento Civil, 32 LPRA Ap. V, R. 45.3. Esta regla
establece que “[e]l tribunal podrá dejar sin efecto una anotación de
rebeldía por causa justificada, y cuando se haya dictado sentencia
en rebeldía, podrá asimismo dejarla sin efecto de acuerdo con la
Regla 49.2”. Regla 45.3 de Procedimiento Civil, 32 LPRA Ap. V, R.
45.3.
C. Relevo de sentencia en el contexto de la anotación de
rebeldía
La Regla 49.2 de Procedimiento Civil, 32 LPRA Ap. V, R.49.2,
provee un mecanismo procesal para solicitar al foro primario el
relevo de los efectos de una sentencia, orden o procedimiento
siempre y cuando medien los fundamentos legales. [CITATION], 539 (2010). Véase, también, [CITATION], 509 (2007). A esos fines, la
precitada regla delimita las circunstancias que motivan la concesión
de este remedio:
(a) error, inadvertencia, sorpresa o negligencia
excusable;
(b) descubrimiento de evidencia esencial que, a pesar de
una debida diligencia, no pudo haber sido descubierta
a tiempo para solicitar un nuevo juicio de acuerdo con
la Regla 48; KLCE202400410
(c) fraude (incluso el que hasta ahora se ha denominado
“intrínseco” y el también llamado “extrínseco”), falsa
representación u otra conducta impropia de una parte
adversa;
(d) nulidad de la sentencia;
(e) la sentencia ha sido satisfecha, renunciada o se ha
cumplido con ella, o la sentencia anterior en que se
fundaba ha sido revocada o de otro modo dejada sin
efecto, o no sería equitativo que la sentencia continúe
en vigor, o
(f) cualquier otra razón que justifique la concesión de
un remedio contra los efectos de una sentencia. 32
LPRA Ap. V, R.49.2.
Esta regla permite al tribunal (a) conocer de un pleito
independiente con el propósito de relevar a una parte de una
sentencia, orden o procedimiento; (b) conceder un remedio a
una parte que en realidad no hubiere sido emplazada, y (c) dejar
sin efecto una sentencia por motivo de fraude al tribunal. [CITATION], supra, pág. 510. (Énfasis suplido).
En [CITATION], supra, pág.
294, el Tribunal Supremo de Puerto Rico extendió los criterios de la
Regla 49.2 de Procedimiento Civil, supra, a aquellos casos
relacionados con la anotación de rebeldía:
Expresamente sostenemos que los criterios inherentes
a la Regla 49.2 de Procedimiento Civil, supra, tales como
si el peticionario tiene una buena defensa en sus
méritos, el tiempo que media entre la sentencia y la
solicitud de relevo, y el grado de perjuicio que pueda
ocasionar a la otra parte la concesión del relevo de
sentencia, son igualmente aplicables cuando se solicita
que una sentencia dictada en rebeldía sea dejada sin
efecto.
Ante tales escenarios, la Regla 49.2 de Procedimiento Civil,
supra, debe “ser interpretada liberalmente y cualquier duda debe
ser resuelta a favor de la parte que solicita que se deje sin efecto la
sentencia”. [CITATION], 625 (2004). Véase,
también, [CITATION]. El aludido
precepto reglamentario provee un justo balance entre dos intereses KLCE202400410
conflictivos de nuestro ordenamiento jurídico. Por una parte, aspira
a “que todo caso se resuelva justamente, mientras que por otro lado
[SEGMENT 9]
se encuentra el interés de que los litigios concluyan.” [CITATION]
Ahora bien, el reconocimiento de esta acción no es una llave
maestra para dejar sin efecto sentencias válidamente dictadas.
[CITATION] La concesión del relevo de sentencia es un
asunto altamente discrecional, por lo que es necesario demostrar
que existen razones que justifican el remedio solicitado. [CITATION] En tales casos, se requiere del
promovente una demostración por preponderancia de la prueba de
hechos justifican la moción. a J. A. Cuevas Segarra, Tratado de
derecho procesal civil, 2da ed., San Juan, Pubs. JTS, 2011, T. III,
pág. 1409. Por tanto, este remedio no está disponible para
corregir errores de derecho o errores de apreciación o
valoración de la prueba que debieron presentarse a través de un
recurso de revisión apelativa o reconsideración. [CITATION] (Énfasis suplido).
El promovente de la solicitud de relevo de sentencia deberá
presentarla “dentro de un término razonable, pero en ningún caso
después de transcurridos seis (6) meses de haberse registrado la
sentencia”. Regla 49.2 de Procedimiento Civil, supra. No obstante,
“si una sentencia es nula, la parte promovedora de una moción de
relevo de sentencia no está limitada por el término de seis meses
expuesto”. [CITATION]
En ese sentido, una sentencia reviste nulidad cuando se ha
dictado sin jurisdicción o cuando al dictarla se ha quebrantado el KLCE202400410
debido proceso de ley. [CITATION], supra, pág.
543; [CITATION], supra, pág. 688. En torno al
debido proceso de ley, el profesor Rafael Hernández Colón explica
que “pueden haber tantas manifestaciones del mismo como
principios del debido proceso existen y que se hayan quebrantado
en un caso en especial”. [CITATION], pág.
544 (citando a R. Hernández Colón, Práctica jurídica de Puerto Rico:
derecho procesal civil, 4ta ed., San Juan, Ed. LexisNexis, 2007, Sec.
4803, pág. 355). A manera de ilustración, la ausencia de una parte
indispensable constituye una violación al debido proceso de ley, que
conlleva obligatoriamente el relevo de la sentencia. [CITATION], supra, pág. 699; [CITATION], supra,
pág. 561. Ante circunstancias de tal naturaleza, la sentencia “se
tiene por inexistente, por lo que no surte efecto alguno”. [CITATION].
Por otro lado, el mecanismo de reapertura dispuesto en la
Regla 49.2 de Procedimiento Civil, supra, no configura un remedio
“para reabrir a capricho el pleito ya adjudicado”. [CITATION], supra, pág. 448. Por tanto, el relevo de sentencia no
debe emplearse a los fines de extender indirectamente el término
para recurrir al foro apelativo, toda vez que tal proceder “atenta
contra la estabilidad y certeza de los procedimientos judiciales”.
[CITATION].
D. La doctrina de la ley del caso
La doctrina de la ley del caso postula que, como norma
general, un tribunal debe seguir sus decisiones en casos posteriores.
[CITATION]. Lo anterior
implica que los derechos y las obligaciones adjudicados en el ámbito
judicial, mediante dictamen firme, constituyen la ley del caso. [CITATION]. Además, “los KLCE202400410
planteamientos que han sido objeto de adjudicación por el foro de
instancia o por este Tribunal no pueden reexaminarse”. [CITATION].
Así pues, una determinación judicial adquiere el carácter de
ley del caso al advenir una decisión final en los méritos de la
cuestión considerada y decidida. [CITATION]. Por tanto, esa
determinación obliga tanto al tribunal de instancia como a que las
dictó, si el caso vuelve ante su consideración. [CITATION].
Ahora bien, la doctrina de la ley del caso opera al servicio de
la justicia, por lo que, “no es férrea ni de aplicación absoluta”. [CITATION]. Véase, también,
[CITATION]. En efecto, si el
caso retorna al tribunal mediante los mecanismos apropiados, y este
entiende que sus determinaciones previas son erróneas y que
podrían causar una grave injusticia, puede aplicar una norma de
derecho distinta y así resolver de forma justa. [CITATION].
Por consiguiente, cuando se presenta un atentado contra los
principios básicos de la justicia, los tribunales pueden descartar la
aplicabilidad de la doctrina de la ley del caso. [CITATION]. De lo contrario, nos corresponde resistirnos
a reexaminar asuntos ya considerados dentro de un mismo caso en
aras de salvaguardar el trámite ordenado y expedito de los litigios,
así como promover la estabilidad y la certeza de derechos. [CITATION]. Véase,
también, [CITATION]. KLCE202400410
III.
En el caso presente, In-Servicio alega que incidió el Tribunal
de Primera Instancia al mantener la anotación de rebeldía, a pesar
de que el dictamen emitido el 20 de diciembre de 2023 por el
[CITATION] decretó la nulidad de Sentencia de
conformidad a la Regla 49.2 de Procedimiento Civil, supra. En
particular, contiende que a raíz de la aludida determinación
apelativa le correspondía al demandante presentar un nuevo caso
contra todas las partes. Argumenta, además, que es imposible que
In-Servicio responda a la demanda, pues al momento de los hechos
objeto de la reclamación, la entidad compareciente no había sido
formalizada ante el Departamento de Estado.
Por su parte, el señor Jordán Ortiz argumentó la Sentencia del
emitida por el [CITATION] no dejó sin efecto la
anotación de rebeldía impuesta contra In-Servicio. Aseveró que el
dictamen apelativo resolvió únicamente que el Consejo no fue
emplazado conforme a derecho. No obstante, alegó que la parte
peticionaria sí fue debidamente emplazada, pero nunca contestó la
demanda ni mostró interés en el pleito hasta después de emitida la
Sentencia original. Advirtió, a su vez, que nunca solicitó el
levantamiento de rebeldía. En vista de ello, razonó que la Orden de
anotación de rebeldía constituye ley del caso.
Tras evaluar detenidamente el expediente ante nuestra
consideración, así como el marco legal aplicable a la controversia,
resulta forzoso concluir que la determinación de anotación de
rebeldía es una determinación final y firme, y por consiguiente,
procede confirmar el dictamen recurrido. Veamos.
Una mirada sosegada del tracto procesal nos permite
corroborar que In-Servicio no compareció dentro del término exigido
para someter su contestación a la demanda original o presentar una KLCE202400410
moción dispositiva. Cabe destacar que, acogió tal proceder, a pesar
de haber sido emplazado oportunamente. En vista de ello, el 13 de
octubre de 2022, el tribunal recurrido le impuso una anotación de
rebeldía. Sin embargo, no surge del expediente que haya impugnado
tal anotación al amparo de la [CITATION],
supra, la [CITATION], supra, o la [CITATION],
supra.
Eventualmente, el 23 de febrero de 2023, el foro primario
dictaminó Sentencia en contra de In-Servicio y Consejo, notificada
el 27 de febrero de 2023, en la cual determinó la imposición de
responsabilidad extracontractual por los daños producidos durante
la remodelación del apartamento del señor Jordán Rivera. En
desacuerdo, la parte peticionaria presentó una Moción Urgente de
Reconsideración y/o Solicitando Relevo de Sentencia u Órdenes y
Otros Asuntos. El tribunal sentenciador declaró No Ha Lugar dicha
solicitud. Por tanto, In-Servicio solicitó revisión apelativa.
Consolidado su recurso con el caso del Consejo, el 20 de diciembre
de 2023, esta Curia emitió el siguiente pronunciamiento:
Es evidente, por tanto, que la declaración jurada del
emplazador, más bien demostró la deficiencia del
diligenciamiento, por lo que no ameritaba un
emplazamiento por edicto. En consecuencia, por el
Consejo de Titulares no haber sido emplazado según es
su derecho, la Sentencia dictada por el Tribunal de
Primera Instancia es inválida, ergo nula, con la
consecuencia de no tener efecto jurídico alguno con
respecto a los afectados por la misma que surgen de los
casos [CITATION] y [CITATION].
Nótese que el precitado dictamen apelativo conllevó que se
dejara sin efecto la Sentencia dictada en rebeldía, cuya disposición
imponía responsabilidad extracontractual contra los
[SEGMENT 10]
codemandados. Sin embargo, la aludida determinación no
implicó el automático levantamiento de los procedimientos
previos relacionados con In-Servicio. (Énfasis suplido). KLCE202400410
Conviene señalar que la Regla 49.2 de Procedimiento Civil,
supra, provee un mecanismo para relevar de los efectos tanto de
sentencias como de órdenes y procedimientos siempre y cuando
existan los fundamentos legales. Véase, [CITATION]. De igual modo, la precitada regla permite
conocer de un pleito independiente con el propósito de relevar a una
parte de una sentencia, orden o procedimiento, o conceder un
remedio a una parte que en realidad no hubiere sido emplazada. [CITATION]. No obstante, el relevo
de sentencia no constituye un mecanismo irrestricto. A la luz de lo
anterior, puntualizamos que el relevo concedido en virtud de
nuestra anterior sentencia apelativa no equivale a un relevo
automático de todo procedimiento dictado con anterioridad a la
Sentencia del TPI.
Ciertamente, el efecto del dictamen apelativo emitido el 20 de
diciembre de 2023 resulta aplicable a In-Servicio. Sin embargo, ello
no implica que todo dictamen previo a nuestra Sentencia apelativa
sea inexistente o nulo. En particular, enfatizamos que la anotación
de rebeldía emitida el 13 octubre de 2022 y notificada al día
siguiente, constituye una decisión final debidamente considerada y
adjudicada.
A su vez, destacamos que evaluamos los argumentos de la
parte peticionaria, sin embargo, no identificamos fundamentos
jurídicos para levantar la anotación de rebeldía al amparo de la
Regla 49.2 de Procedimiento Civil, supra. Nuestras facultades
revisoras no se extienden a tal grado que nos permitan dejar sin
efecto la Orden de anotación de rebeldía impuesta en su contra sin
que medie fundamento jurídico meritorio a tales fines. In-Servicio
no puede litigar lo adjudicado o presentar señalamientos que debió
exponer en su escrito reconsideración o revisión apelativa. KLCE202400410
Recordemos, pues, que este indicó que fue emplazado el 9 de agosto
de 2022. Por tanto, le correspondía atender oportunamente la
reclamación instada en su contra para evitar que el foro primario le
impusiera la anotación de rebeldía. Ante tales circunstancias, le
compete diligentemente presentar la contestación a la demanda
enmendada.
Por último, advertimos que el trámite ordinario a los fines
iniciar el caso solo resulta aplicable para Consejo, quien no fue
debidamente emplazado tal como resolvimos en la Sentencia
consolidada. Ante la falta de jurisdicción de esta parte, todo trámite
dictado en su contra es inexistente. Sin embargo, resaltamos que en
cuanto a In-Servicio, consta en el expediente apelativo el proyecto
de emplazamiento debidamente diligenciado. En tal escenario, no
advertimos espacio para requerirle al demandante volver a emplazar
a In-Servicio. Tal exigencia contravendría con nuestro principio
procesal que favorece la solución justa, rápida y económica de todo
procedimiento. Véase, [CITATION].
En vista de lo anterior, resolvemos que el tribunal recurrido
actuó conforme a derecho al mantener la anotación de rebeldía y
exigirle a la parte peticionaria presentar su contestación a la
demanda enmendada sin admitir prórroga. La determinación
recurrida descansa en la discreción judicial, por lo que, merece
nuestra deferencia. Ante la ausencia de error manifiesto, abuso de
discreción, prejuicio o parcialidad, nos abstenemos de intervenir en
la determinación recurrida.
IV.
Por los fundamentos que anteceden, expedimos el auto de
certiorari y confirmamos el dictamen recurrido. It appears that in the provided part of the court ruling, there are no court ruling citations to be replaced. The given text contains only elements such as reference numbers and official statements, without any identifiable court ruling citations.
Here is the text in its original form as no changes were required:
KLCE202400410
Lo acordó y manda el Tribunal, y lo certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL VII
ROLAND RENATO APELACIÓN
MANARIN Procedente del
Tribunal de Primera
Apelado Instancia, Sala de
San Juan
v. [CITATION]
Civil núm.:
JORGE L. MONTES SJ2023CV00215
MELENDEZ POR SI Y (603)
COMO
COADMINISTRADOR DE Sobre:
LA SOCIEDAD LEGAL DE COBRO DE
BIENES GANANCIALES DINERO
CONSTITUIDA CON ORDINARIO
ELVIRA E. MONTES
GARCIA Y OTROS
Apelante
Panel integrado por su presidenta la juez Domínguez Irizarry, la juez
Grana Martínez y el juez Pérez Ocasio
Pérez Ocasio, juez ponente
SENTENCIA
En San Juan, Puerto Rico, a 10 de mayo de 2024.
Comparece ante nos, Jorge Montes Meléndez y Elvira Montes
García y la Sociedad de Gananciales compuesta por ambos, en
adelante la parte apelante o matrimonio Montes-Montes. La parte
apelante nos solicita que revoquemos una “Sentencia” notificada el
2 de noviembre de 2023 por el Tribunal de Primera Instancia, Sala
de San Juan, en adelante Foro Primario o TPI-San Juan. En dicha
sentencia el Tribunal declaró “Con Lugar” la “Demanda” sobre Cobro
de Dinero.
Examinado el recurso presentado, así como el derecho
aplicable y la transcripción de la vista, confirmamos la Sentencia en
Rebeldía del 2 de noviembre de 2023.
Número Identificador
SEN2024___________________ KLAN202301159
I.
La situación de hechos que nos ocupan son los siguientes.
Renato Manarin contrató a Montes Meléndez en su gestión
profesional como corredor de bienes raíces para que administrara el
arrendamiento a corto plazo de una propiedad inmueble.[CITATION] Ante el
incumplimiento laboral de Montes Meléndez, este incurrió en
deudas por concepto de rentas y emitió un Pagaré a Renato Manarin
o a su orden, por la suma de $46,538.04 de principal.[CITATION] Así también,
acordaron que devengaba interés del 10% hasta su total pago o
durante cualquier período de incumplimiento, mora o falta de pago
y aún después de su presentación o vencimiento.[CITATION]
Suscrito el instrumento ante el Notario Milton Portalatín
Pérez, los apelantes también prometieron que en caso de
incumplimiento pagarían una suma líquida adicional de $4,653.80.[CITATION]
Las partes habían acordado la fecha y lugar de pago.[CITATION] Así las cosas,
el apelado alega que Montes Mélendez no realizó pago alguno, por lo
que la deuda se volvió líquida, vencida y exigible.[CITATION]
Tras varios incidentes procesales entre las partes, el 12 de
enero de 2023, Renato Manarin presentó una demanda por Cobro
de Dinero bajo el proceso ordinario contra el matrimonio Montes
Montes.[CITATION] Ante la dificultad de emplazar a Montes Meléndez, Renato
Manarin solicitó realizar el emplazamiento por edicto.[CITATION] El 31 de
enero de 2023, a solicitud de Renato Manarin, el Foro Primario
emitió una “Orden” de Aseguramiento de Sentencia.[CITATION]
Posteriormente, el edicto fue publicado el 21 de marzo de 2023.[CITATION] El
====== End of Part ====== KLAN202301159
plazo restante para presentar una alegación responsiva por el
matrimonio Montes Montes expiraba el 20 de abril de 2023.[CITATION] Ese
día, Montes Meléndez presentó una moción solicitando término
adicional para completar acuerdo entre las partes.[CITATION] No obstante, el
matrimonio Montes Montes no presentó alegación responsiva, por lo
que Renato Manarin solicitó que se anotara la rebeldía de
conformidad con las Reglas de Procedimiento Civil, [CITATION]
Según surge del expediente de autos, el matrimonio Montes
Montes presentó contestación a la demanda el 18 de mayo de
2023.[CITATION] No obstante, mediante orden, el TPI- San Juan solo aceptó
la contestación de la demanda en cuanto a Montes Meléndez.[CITATION]
Respecto a Montes García la declaró en rebeldía, toda vez que ésta
fue emplazada personalmente el 27 de enero de 2023, y sin haber
presentado alegación responsiva dentro del término dispuesto en las
Reglas de Procedimiento Civil, supra.[CITATION]
[SEGMENT 11]
Trabada la controversia entre las partes, Renato Manarin
comenzó el proceso de descubrimiento de prueba.[CITATION] El matrimonio
Montes Montes presentó una moción solicitando paralización de los
procedimientos y prórroga para el descubrimiento de prueba,
incluyendo oportunidad para contratar representación legal, toda
vez que se encontraba en estado de indefensión por ser una persona
lega en materia de derecho.[CITATION] Ante la solicitud, el Foro a quo denegó
la paralización y la prórroga solicitada por el matrimonio Montes
Montes.[CITATION] Así mismo, denegó la solicitud de levantar la rebeldía por
[CITATION]
====== End of Part of a Court Ruling ====== KLAN202301159
no haber establecido justa causa para ello y le apercibió a
comparecer con representación legal. [CITATION]
Posteriormente, el Foro Primario impuso sanciones, se dio por
admitido el descubrimiento de prueba, eliminó las alegaciones y se
anotó rebeldía a Montes Meléndez conforme las Reglas de
Procedimiento Civil, supra. [CITATION]
Así las cosas, el 26 de octubre de 2023, se celebró la Vista en
su Fondo en rebeldía. [CITATION] Según surge de la Transcripción de la Vista,
tras la anotación de rebeldía, el tribunal instruyó a las partes sobre
los derechos de una parte demandada en rebeldía. [CITATION] Estos incluyen,
como parte de su debido proceso de ley, contrainterrogar e impugnar
la cuantía, siendo esta la razón por la cual los apelantes continuaron
alegando unas cantidades que -a su parecer- debían deducirse de la
deuda. Entre esas cantidades se incluía la cantidad de $28,600.00
que el propio apelado reconoció. [CITATION] Sobre esa cuantía, producto de la
venta de un inmueble gestionada por el apelante, la evidencia en
autos demuestra que la misma fue debidamente reducida. [CITATION]
Eventualmente, el Foro Primario dictó “Sentencia” el 1 de
noviembre de 2023, declarando “Ha Lugar” la demanda. [CITATION] El 14 de
noviembre de 2023 el matrimonio Montes Montes presentó una
“Moción de Reconsideración” al amparo de la Regla 47 de
Procedimiento Civil, 32 LPRA, Ap. V, R. 47. [CITATION] El 29 de noviembre de
2023 fue notificada una “Resolución” del TPI- San Juan denegando
la moción de reconsideración. [CITATION] KLAN202301159
Inconforme con el proceder del Foro Primario, la parte
apelante acudió ante este Foro el 28 de diciembre de 2023, y en su
recurso de “Apelación”, le imputa al TPI-San Juan los siguientes
señalamientos de error:
PRIMERO: ERRÓ EL HONORABLE TRIBUNAL DE
PRIMERA INSTANCIA AL DECLARAR CON LUGAR
LA DEMANDA DE EPÍGRAFE EXISTIENDO
EVIDENCIA CONTUNDENTE DE LA FIGURA DE
COMPENSACIÓN EN ESTE CASO Y COMO TAL EL
DEMANDADO NADA DEBE.
SEGUNDO: ERRÓ EL TRIBUNAL AL LLEVAR A
CABO LA VISTA EN SU FONDO, A PESAR DE QUE
EL DEMANDADO HABÍA PRESENTADO DENTRO
DEL PLAZO CORRESPONDIENTE UN
DESCUBRIMIENTO DE PRUEBA QUE NO HABÍA
SIDO CONTESTADO Y QUE ERA VITAL PARA SU
DEFENSA.
La parte apelada compareció el 11 de enero de 2024 con una
“Moción de Desestimación”, a la que se opuso la parte apelante el 29
de enero de 2024. Este Foro declaró ambos petitorios “No Ha Lugar”,
mediante “Resolución” el 2 de febrero de 2024. Además, concedió a
la parte apelada un término de diez (10) días para presentar su
alegato en oposición. En cumplimiento de orden, la parte apelada
presentó su “Alegato en Oposición” el 12 de febrero de 2024. Por otro
lado, mediante moción, la parte apelante solicitó la autorización de
este Tribunal para presentar la transcripción de prueba oral, la cual
fue declarada “Ha Lugar” el 23 de febrero de 2023. En cumplimiento
de orden, la parte apelante sometió ante esta Curia la “Transcripción
de Vista en Rebeldía y Juicio en su Fondo del 26 de octubre de 2023”,
el día 18 de marzo de 2024. Con el beneficio de la comparecencia de
ambas partes, y la transcripción de la prueba oral, procedemos a
resolver. KLAN202301159
II.
A. Apelación
Las Reglas de Procedimiento Civil, supra, se desenvuelven en
un orden lógico, natural y armonioso entre sí. Este orden queda
demostrado en las distintas etapas de un litigio, entiéndase las
alegaciones, mociones, descubrimiento, vista evidenciaria,
sentencia, reconsideración, apelación, y sus efectos escalonados.
Cada etapa se sirve de la anterior y se proyecta, entonces, para la
próxima. [CITATION]
La etapa de la apelación se perfecciona con la presentación
oportuna de un escrito conforme a las formalidades establecidas en
nuestro estado de derecho, que incluye su debida notificación a las
partes. El recurso de apelación es aquel que se presenta ante un
foro de mayor jerarquía cuando se solicita la revisión de una
sentencia, o un dictamen final, emitido por el Foro de Primera
Instancia. Regla 52.1 y 52.2 de Procedimiento Civil, 32 LPRA, Ap.
VIII, R. 52; [CITATION] Véase R. Hernández Colón, Práctica Jurídica de
Puerto Rico: Derecho Procesal Civil, 6ta Ed., San Juan, Ed. Lexis
Nexis, 2017, pág. 519.
La apelación no es un recurso discrecional como en los casos
de certiorari. Una vez se cumpla con los requisitos jurisdiccionales y
de perfeccionamiento del recurso, el Tribunal de Apelaciones viene
obligado a atender el asunto y resolverlo en sus méritos, de forma
fundamentada. [CITATION] En ese sentido, se reconoce que existe el derecho
estatutario para acudir en apelación ante el Tribunal de
Apelaciones, cuestionando toda sentencia final emitida por el
Tribunal de Primera Instancia. [CITATION] KLAN202301159
Al revisar una determinación de un foro de menor jerarquía,
los tribunales revisores tenemos la tarea principal de auscultar si se
aplicó correctamente el derecho a los hechos particulares del
caso. Como regla general, los foros apelativos no tenemos facultad
para sustituir las determinaciones de hechos del tribunal de
instancia con nuestras propias apreciaciones. [CITATION]. De manera que, si la
actuación del tribunal no está desprovista de base razonable, ni
perjudica los derechos sustanciales de una parte, debe prevalecer el
criterio del juez de instancia a quien corresponde la dirección del
proceso. [CITATION].
B. Prueba oral y quantum de prueba
Con relación a la prueba oral en las revisiones judiciales, y la
norma de corrección que cobija las determinaciones realizadas por
el Foro Primario, nuestro Tribunal Supremo ya se ha expresado en
[CITATION]. Se ha
establecido que cuando una parte señala errores dirigidos a
cuestionar la apreciación o suficiencia de la prueba, la naturaleza
del derecho apelativo requiere que éste ubique al foro revisor en
tiempo y espacio de lo ocurrido en el foro primario. Para esto debe
utilizar alguno de los mecanismos de recopilación de prueba oral,
como lo son:
(1) transcripción de la prueba,
(2) exposición estipulada o
(3) exposición narrativa.
[CITATION], supra.
De igual forma, la Regla 19 del Reglamento del Tribunal de
Apelaciones, supra, expresamente dispone que “cuando la parte
apelante haya señalado algún error relacionado con la suficiencia de KLAN202301159
la prueba testifical o con la apreciación errónea de ésta por parte del
tribunal apelado, someterá una transcripción, una exposición
estipulada o una exposición narrativa de la prueba. [CITATION]
supra, págs. 655 y 671. [CITATION].
Es sabido, y así lo reconoce nuestro ordenamiento jurídico,
que los tribunales de mayor jerarquía no pueden cumplir a
cabalidad su función revisora sin que se le produzca, mediante
alguno de estos mecanismos, la prueba que tuvo ante sí el foro
primario. [CITATION] pág. 671. El Máximo Foro Judicial local ha reiterado
en múltiples ocasiones que las disposiciones reglamentarias que
gobiernan los recursos que se presentan ante el Tribunal de
[SEGMENT 12]
Apelaciones deben observarse rigurosamente. [CITATION] págs. 671-672.
C. Rebeldía
La rebeldía no es otra cosa que “la posición procesal en que se
coloca la parte que ha dejado de ejercitar su derecho a defenderse o
de cumplir con su deber procesal”. [CITATION],
2023 TSPR 110, 212 DPR ___ (2023); [CITATION]. Tiene como propósito el disuadir a
una parte a dilatar los procedimientos como una estrategia de
litigación. [CITATION].
Por otro lado, la Regla 45.1 de Procedimiento Civil, supra,
detalla los asuntos concernientes con la anotación de rebeldía, a
saber, expresa que:
Cuando una parte contra la cual se solicite una
sentencia que concede un remedio afirmativo haya
dejado de presentar alegaciones o de defenderse en otra
forma según se dispone en estas reglas, y este hecho se
pruebe mediante una declaración jurada o de otro
modo, el secretario anotará su rebeldía. KLAN202301159
El tribunal a iniciativa propia o a moción de parte,
podrá anotar la rebeldía a cualquier parte conforme a la
Regla 34.3 (b) (3).
Dicha anotación tendrá el efecto de que se den por
admitidas las aseveraciones de las alegaciones
afirmativas, sujeto a lo dispuesto en la Regla 45.2 (b).
La omisión de anotar la rebeldía no afectará la validez
de una sentencia dictada en rebeldía.
[CITATION]
Procede la anotación de rebeldía cuando el demandado no
cumple con el requisito de comparecer a contestar la demanda u
ofrecer una defensa a su favor, por lo que este no presenta alegación
alguna contra las alegaciones hechas por el demandante o contra el
remedio solicitado por este. [CITATION]. Álamo v.
Supermercado Grande, Inc., [CITATION]; Véase, R.
Hernández Colón, Práctica Jurídica de Puerto Rico, Derecho Procesal
Civil, 6ta Ed. San Juan, Ed. Lexis Nexis, 2017, p. 328.
También procede una anotación de rebeldía contra una
parte que se negó a descubrir su prueba luego de que se le
requiriera hacerlo, o que incumplió con algún mandato del
tribunal, lo que motiva a este, por solicitud del demandante
o motu proprio, a imponerle la rebeldía como sanción. [CITATION], citando a Álamo v.
Supermercado Grande, Inc., supra; [CITATION].
Una anotación en rebeldía provoca que se dan por admitidos
todos los hechos bien alegados en la demanda. Además, tiene el
efecto de autorizar al Foro Primario para que dicte sentencia, si es ```plaintext
KLAN202301159
eso lo que procede en derecho. [CITATION],
supra; [CITATION], supra, pág. 598.
Sobre los derechos de una parte en rebeldía el Tribunal
Supremo, en varias ocasiones, ha reiterado que le asiste el derecho
a conocer del señalamiento, asistir a la vista, contrainterrogar los
testigos de la parte demandante, impugnar la cuantía y apelar la
sentencia. [CITATION],
Marina, 106 DPR 809, 817 (1978).
D. Los Instrumentos Negociables y el Pagaré
En Puerto Rico, la primera ley adoptada para regular el
derecho cambiario provino del Código de Comercio español de
1889. [CITATION]. No fue
hasta el 1930 que el antiguo Código de Comercio fue enmendado
por la Ley Uniforme de Instrumentos Negociables de Puerto Rico.
[CITATION].
Esto se hizo para atemperarla a la nueva legislación del modelo
estadounidense, la entonces Negotiable Instruments Law (NIL),
promulgada por el National Conference of Commissioners on
Uniform State Laws en 1896. [CITATION].
Posteriormente, y a partir del año 1952, la American Law Institute
(ALI) y la American Bar Association (ABA), promulgaron el famoso
Uniform Commercial Code (UCC) con el propósito de corregir
lagunas y defectos en la redacción de la legislación anterior y
unificar otros aspectos del derecho mercantil. De igual forma, la
llegada del UCC inició un movimiento de uniformidad jurídica en
Estados Unidos, y hoy es la legislación modelo más extensa que se
ha promulgado. Id. en las págs. 88-89.
``` KLAN202301159
Eventualmente, en el año 1995, la Legislatura de Puerto Rico
aprobó la entonces Ley de Instrumentos Negociables y
Transacciones Bancarias, Ley Núm. 208 del 17 de agosto de 1995,
19 LPRA sec. 401, adoptando casi ad verbatim las disposiciones del
UCC con el fin de colocarnos en paridad cambiaria con los demás
estados de la nación norteamericana, que en su mayoría había
adoptado el UCC. Dicha ley ha sido objeto de múltiples enmiendas,
entre las cuales está la actualización de su nombre a Ley de
Transacciones Comerciales, en adelante, LTC. [CITATION]
Esta rama del Derecho que regula el tráfico de instrumentos
negociables se conoce comúnmente como el derecho cambiario. En
general, los instrumentos negociables son documentos de crédito
que le confieren a su titular el derecho a recibir un pago o
contraprestación a cambio de su transmisión. Su utilidad estriba en
que sirven como método de pago alterno a la moneda de curso legal
o al dinero en efectivo, por lo que su uso se ha proliferado para
facilitar la compraventa de mercancías y otras transacciones
comerciales. [CITATION]
La LTC supra, sec. 2-104 (a), 19 LPRA 504(a),
define instrumento negociable como una promesa o una orden
incondicional de pago de una cantidad específica de dinero, con o
sin intereses u otros cargos descritos en la promesa u orden, si este:
(1) es pagadero al portador o a la orden al momento de su
emisión o cuando lo posee primeramente su tenedor;
(2) es pagadero a la presentación o en una fecha específica,
y
(3) no especifica otro compromiso o instrucción por parte de
la persona que promete u ordena el pago que no sea el pago
del dinero.
En términos generales, los instrumentos negociables son
documentos escritos que prueban la existencia de una deuda, pero KLAN202301159
que pueden cambiar de mano en mano como un tipo de moneda
alterna. Es decir, que tienen la cualidad de ser negociados y, por lo
tanto, transferidos a un tercero que no fuere parte de la transacción
original.29
Existen dos clases de instrumentos negociables. La promesa,
mejor conocida como el pagaré, y la orden, también conocida como
letra de cambio o giro. De manera que todos los instrumentos
negociables son modalidades del pagaré o de la letra de cambio.30
Sobre el pagaré, la sección 2-104 inciso (e) de la LTC, supra,
establece que un instrumento negociable es un pagaré cuando en
este hay un compromiso escrito de pagar el dinero suscrito por la
persona que se obliga. Es decir, es un documento de crédito que
confiere a su titular el derecho a recibir un pago o contraprestación
a cambio de su transmisión. [CITATION], supra, pág.
90. De forma resumida, es una promesa de parte del deudor para
pagar una suma cierta de dinero a la orden de persona determinada
o al portador, en una fecha fija o específica o a la presentación. 31
La LTC, supra, en su sección 2-105 inciso (a), 19 LPRA 505(a),
indica que emisión significa la primera entrega de un instrumento
hecha por el firmante o el librador, bien sea a un tenedor o a un no-
tenedor, con el propósito de concederle derechos en el instrumento
a cualquier persona. De manera que, una vez emitido, se obliga el
deudor.
Sobre el otorgamiento del instrumento, tienen derecho a exigir
el cumplimiento el tenedor o una persona que no es tenedor, siempre
que esta última se encuentre en posesión del instrumento, y tenga
los derechos de un tenedor. LTC, supra, sec. 2-301, 19 LPRA 601.
29
L. M. Negrón Portillo y M. Fabián Maldonado, Derecho mercantil y otros principios
generales del derecho puertorriqueño, pág. 194 (1997).
30 Id. pág. 195.
31F. Montañez Miranda, Aspectos legales para los negocios, San Juan, Ed. Situm,
2018, T. I, pág. 252. KLAN202301159
La sección 2-602 de la LTC, [CITATION], establece la forma
[SEGMENT 13]
en la que se realiza un pago en los instrumentos negociables. En
este sentido la ley nos dice que se paga un instrumento en la medida
que se haga el pago:
(i) por o a nombre de la persona obligada a pagar el
instrumento, y
(ii) a una persona con derecho a exigir el
cumplimiento del instrumento. En la medida del
pago hecho, la parte obligada a pagar el
instrumento se releva de su obligación, aunque el
pago se haya hecho con conocimiento de la
existencia de una reclamación contra el
instrumento de parte de otra persona bajo las
disposiciones de la Sección 2-306.
[CITATION] (a)
III.
Por no estar relacionados entre sí, esta Curia ha determinado
atender de manera separada la discusión de los planteamientos de
error.
A.
La parte apelante plantea, como primer señalamiento, que erró
el foro primario al sentenciarle a pagar lo adeudado como resultado
de una promesa de pago que hiciere este a favor del apelado sin
aplicar la figura de la compensación. Luego de cavilar con toda la
documentación y las determinaciones de hecho y de derecho, nos
resulta forzoso concluir que el foro primario no incidió en error alguno
al declarar con lugar la demanda.
Los instrumentos negociables son, sin lugar a duda, de gran
importancia en nuestra vida contemporánea. A manera de ejemplo, KLAN202301159
diariamente se hacen miles de transacciones en Puerto Rico que
envuelven cheques y promesas de pago.32 No ha de extrañarnos,
sabiendo que estos se utilizan como mecanismos alternos al uso de
moneda legal. No obstante, su importancia descansa en la
garantía que brindan sobre la existencia de un crédito o deuda
a favor de su tenedor.
De la transcripción de la vista y la documentación se
desprende que la parte apelante reconoce haber hecho la promesa
de pago al emitir el pagaré a favor del apelado. Aun cuando
argumenta en ocasiones que la parte apelante le adeuda ciertas
cantidades, las mismas no están relacionadas al pagaré en cuestión
-con excepción de la cantidad reconocida por ambas partes por la
suma de $28,600.00 ya acreditados a la deuda.
Adicional a esto, los instrumentos negociables se rigen por la
legislación establecida en la LTC, [CITATION], por lo que nuestro Código
Civil se aplica de manera supletoria en aquello que no cubra la ley
especial. La ley especial prevalecerá sobre el derecho general.
Habiéndose pactado fecha específica para el cumplimiento,
incluso lugar de pago, y no disponiendo acreditación de pagos a un
tercero, no corresponde acreditar a este pagaré esa supuesta deuda
como compensación. La Sección 2-601 de la LTC, [CITATION], sec. 752(a),
establece que se paga un instrumento en la medida que se haga el
pago: (i) por o a nombre de la persona obligada a pagar el
instrumento, y (ii) a una persona con derecho a exigir el
cumplimiento del instrumento.
De modo que, los pagos realizados a un tercero y que en este
pleito no se ha probado que fuera una persona con derecho a exigir
el cumplimiento de este pagaré, no puede acreditarse al mismo. Por
32 [CITATION]. KLAN202301159
lo que actuó correctamente el Foro Primario toda vez que la parte
apelante no probó la inexistencia de la deuda garantizada en pagaré.
B.
Como segundo señalamiento de error, la parte apelante alega
que erró el tribunal al ver la vista en su fondo luego de haber sido
declarada en rebeldía. Aduce que presentó el descubrimiento de
prueba dentro del término correspondiente. No le asiste la razón a
la parte apelante.
En nuestro ordenamiento jurídico, como se ha mencionado en
varias ocasiones, existen diversas etapas dentro de los procesos de
adjudicación en los Tribunales. Cada etapa se sirve de la anterior y
se organiza para la siguiente. Estas etapas, a su vez, se delimitan
dentro de un marco o andamiaje legal de procedimientos y
reglamentos. En conjunto, estas etapas y procedimientos funcionan
de manera que se salvaguarde el debido proceso de ley y los
derechos fundamentales de todas las partes. Del juzgador fallar en
los procedimientos durante alguna etapa, la próxima etapa funciona
para proveer la oportunidad de corregir esos errores.
Para que estas etapas funcionen correctamente es esencial
que se respete a los tribunales y las órdenes que estos emiten. Así
también, el derecho y la administración de la justicia no puede
parcializarse y analizarse desde un solo lado. Es esencial la
aplicación de esas cuestiones discrecionales y flexibles, como la
otorgación de prórrogas con justa causa.
En el caso ante nos, se observó el buen ejercicio de la
discreción del juzgador y la flexibilidad para con una parte que
alegaba estar en búsqueda de representación legal. Lo que no se
observó fue el respeto a las órdenes emitidas por el Foro Primario. KLAN202301159
Del expediente se desprende que se le concedieron, al menos, dos
(2) prórrogas para el descubrimiento de prueba, y la parte apelante
las incumplió y causó dilaciones en los procedimientos.
Así las cosas, y basado en la documentación presentada y la
transcripción de la vista, es deber de este tribunal reconocerle
deferencia al Foro Primario. Declarados en rebeldía por el tribunal,
al amparo de las Reglas de Procedimiento Civil, [CITATION], correspondía
la eliminación de las alegaciones y proceder con la vista en su fondo,
estando en rebeldía.
Una vez en rebeldía, al apelante le asiste el derecho a conocer
del señalamiento, asistir a la vista, contrainterrogar los testigos de
la parte demandante, impugnar la cuantía y apelar la sentencia. Así
las cosas, este Tribunal puede deducir que el foro primario
salvaguardó los derechos de la parte apelante. Se le informó de la
fecha de la vista, a la cual acudió. Se le permitió contrainterrogar a
los testigos y a confrontar la prueba, incluso, ante las objeciones de
la parte apelada, se le brindó deferencia para completar y realizar
las preguntas que formuló. Así como también se le notificó de la
sentencia y su derecho a apelar.
Por todo lo cual, nos resulta inevitable respetar y conceder la
deferencia que amerita brindarle al Foro Primario.
IV.
Por los fundamentos que anteceden, confirmamos la sentencia
apelada.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
LCDA. LILIA M. OQUENDO SOLÍS
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL VII
MIGUEL ÁNGEL Certiorari
FONTÁNEZ GARCÍA procedente del
Y OTROS Tribunal de
Primera Instancia,
Recurrido KLCE202400275 Sala de Humacao
v. Sobre:
Cobro de Dinero
ELIACÍN MOLINA NIEVES Enriquecimiento
Y OTROS Injusto, Fraude y
Daños y Perjuicios
Peticionario
Caso Número:
HU2023CV01093
Panel integrado por su presidenta, la Juez Domínguez Irizarry, la
Juez Grana Martínez y el Juez Pérez Ocasio
Domínguez Irizarry, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 30 de abril de 2024.
La parte peticionaria, Eliacin Molina Nieves (en adelante,
Molina Nieves), su señora esposa, la Sociedad Legal de Gananciales
compuesta por ambos y la compañía JLV Construction, LLC,
comparece ante nos y solicita nuestra intervención para que
dejemos sin efecto una determinación emitida por el Tribunal de
Primera Instancia, Sala de Humacao, el 18 de septiembre de 2023,
notificada el 20 del mismo mes y año. Mediante la misma, el
tribunal primario declaró con lugar una Solicitud de Anotación de
Rebeldía promovida por la parte recurrida, Miguel Ángel Fontánez
García (en adelante, Fontánez García), su esposa, Andrea Suárez, y
la Sociedad Legal de Gananciales habida entre ambos. Ello, dentro
de una acción de cobro de dinero, enriquecimiento injusto y daños,
incoada en contra de los apelantes.
Por los fundamentos que expondremos a continuación, se
expide el auto solicitado y se revoca la Resolución recurrida.
Número Identificador
SEN2024 ________________ KLCE202400275
I
El 31 de julio de 2023, la parte recurrida presentó la demanda
de epígrafe. En esencia, alegó que, por mutuo acuerdo, Fontánez
García y Molina Nieves compraron una máquina de equipo pesado
[SEGMENT 14]
para el movimiento de tierra, conocida como Caterpillar. Indicó que
el costo de la máquina ascendió a ciento veinte mil dólares
($120,000.00), con un canon mensual de mil cien dólares
($1,100.00). Además, detalló que, presuntamente, aportó veinte mil
dólares ($20,000.00) para el pronto del aludido equipo, y le prestó a
la parte peticionaria ocho mil dólares ($8,000.00), con el
compromiso de que la referida cantidad fuese pagada “dentro de seis
meses a la fecha del préstamo”. [CITATION]
Por otro lado, la parte recurrida alegó que llegó a un acuerdo
con la parte peticionaria, mediante el cual Molina Nieves gestionaría
los contratos de proyectos de vivienda y demolición de edificios, y
Fontánez García operaría la referida máquina. Aseveró que Molina
Nieves incumplió con coordinar los aludidos contratos, y continuó
usando el equipo, sin proveerle la debida remuneración. En virtud
de ello, solicitó al tribunal de instancia que condenara a la parte
peticionaria a devolverle el dinero invertido en la referida máquina,
el cual alegadamente ascendía a cuarenta y ocho mil dólares
($48,000.00), y a compensarle por los daños y perjuicios sufridos,
los cuales fueron estimados en setenta y cinco mil dólares
($75,000.00).
El 23 de agosto de 2023, la parte recurrida presentó una
Moción Informativa, en la cual detalló que, el 9 de agosto de 2023,
diligenció los emplazamientos correspondientes.
El 18 de septiembre de 2023, la parte recurrida incoó una
Solicitud de Anotación de Rebeldía, ya que, transcurrido el término
[CITATION] KLCE202400275
reglamentario para contestar la demanda, la parte peticionaria no
había presentado su alegación responsiva.
Ese mismo día, el foro primario emitió una Resolución,
notificada el 20 de septiembre de 2023, mediante la cual le anotó la
rebeldía a la parte peticionaria.
Así las cosas, el 11 de octubre de 2023, la parte peticionaria
presentó una Moción para Asumir Representación Legal y Solicitar
Término para Contestar Demanda. En la misma, le suplicó al
tribunal que le concediera un término de veinte (20) días para
estudiar los expedientes del caso y presentar la contestación a la
demanda.
En reacción, el 14 de noviembre de 2023, la parte recurrida
presentó una Moción Informativa en la cual expresó no tener
objeción con que se le otorgara a la parte peticionaria un término
final para que contestara la demanda. [CITATION]
Examinado el escrito, el foro primario le concedió a la parte
peticionaria un término de cinco (5) días para presentar su posición
en cuanto a lo expresado en la antedicha moción.
Según ordenado, el 21 de noviembre de 2023, la parte
peticionaria presentó Moción en Cumplimiento de Orden, Solicitando
el Relevo de Anotación de Rebeldía y Autorización para Contestar
Demanda. Particularmente, sostuvo que se debía decretar el relevo
de la anotación de rebeldía, puesto que no fue notificada de los
escritos presentados por la parte recurrida, ni de las órdenes del
tribunal, por lo que desconocía que se le había anotado la rebeldía.
Examinados los escritos, el 21 de noviembre de 2023,
notificada el 22 del mismo mes y año, el tribunal primario emitió
una Orden en la cual declaró No Ha Lugar la solicitud de relevo. El
[CITATION] Apéndice del recurso, pág. 27. KLCE202400275
aludido foro precisó que, “desde el 18 de septiembre de 2023, [el]
Tribunal dictó orden y anotó la rebeldía.”3
Inconforme, y luego de denegada una previa solicitud de
reconsideración, el 5 de marzo de 2024, la parte peticionaria
compareció ante nos mediante el presente recurso de certiorari. En
el mismo expone los siguientes señalamientos:
Erró el Tribunal de Primera Instancia al no re-notificar
su Orden sobre Anotación de Rebeldía a la Parte
Recurrente y sostener su validez a pesar de tratarse de
una orden nula por haberse notificado erróneamente.
Erró el Tribunal de Primera Instancia al no relevar a la
parte recurrente de la anotación de rebeldía a tenor con
la Regla 43.5 de las Reglas de Procedimiento Civil de
Puerto Rico.
Luego de examinar el expediente de autos, y con el beneficio
de la comparecencia de ambas partes, procedemos a expresarnos.
II
A
Cónsono con lo estatuido en la Regla 45.1 de las de
Procedimiento Civil, 32 Ap. V, R. 45.1, procede una anotación de
rebeldía cuando una parte contra la cual se ha solicitado una
sentencia que conceda algún remedio afirmativo, deje de presentar
la correspondiente alegación o de defenderse en otra forma.
[CITATION]. En nuestro sistema de ley, la rebeldía se concibe como la
posición procesal que asume aquella parte que, tras ser requerido
judicialmente, opta por no ejercitar su derecho a defenderse. R.
Hernández Colón, Práctica Jurídica de Puerto Rico; Derecho Procesal
Civil, Lexis Nexis de Puerto Rico, Inc., 6ta Edición, 2017, pág.
327.
El remedio dispuesto en la antes aludida Regla opera en dos
situaciones: cuando el demandado no cumple con el requisito de
3 Véase, Entrada 19, Sistema Unificado de Manejo y Administración de Casos
(SUMAC). KLCE202400275
comparecer a contestar la demanda o defenderse, o cuando una de
las partes en un pleito incumple con algún mandato del tribunal, y
este le impone la rebeldía a manera de sanción. [CITATION], supra. [CITATION]. El mismo, además, tendrá como consecuencia
jurídica que se estimen aceptadas todas y cada una de las materias
bien alegadas en la demanda, o aquella formulada contra el rebelde,
y que se autorice al tribunal a dictar sentencia, si esta procede en
derecho. [CITATION].
Por otra parte, los tribunales tienen la facultad de dejar sin
efecto una anotación de rebeldía cuando exista justa causa para
ello. Igualmente, pueden, de conformidad con lo dispuesto en la
Regla 49.2 de Procedimiento Civil, 32 LPRA Ap. V, R. 49.2, dejar sin
efecto una sentencia dictada en rebeldía. Regla 45.3 de
Procedimiento Civil, 32 LPRA Ap. V, R. 45.3.
Ahora bien, la parte que solicita que se deje sin efecto una
anotación de rebeldía, tiene el deber de presentar evidencia de
circunstancias que, a juicio del tribunal, demuestre: justa causa
para la dilación; probar que tiene una buena defensa en sus méritos
y que el grado de perjuicio que pueda ocasionarse a la otra parte es
razonablemente mínimo. [CITATION], pág. 593. No son suficientes escuetas allegaciones o someros
argumentos al respecto. [CITATION].
B
Por su parte, es premisa cardinal en el ordenamiento procesal
vigente que, hasta tanto una sentencia, orden o resolución no es
notificada a todas las partes, el pronunciamiento de que trate no es
vinculante. Como resultado, la falta de notificación tiene el
principal efecto de impedir que los distintos términos que de ella KLCE202400275
dimanan comiencen a decursar. [CITATION]
DPR 172, 183 (2015); [CITATION]
(2003). Arrogarle efecto jurídico a una determinación judicial que
no cumple con el requisito de notificación, lacera la máxima
constitucional que garantiza a los ciudadanos conocer los
fundamentos de una adjudicación sobre la cual ostentan
determinado interés. El deber de notificar a las partes interesadas
en determinada causa no constituye un mero requisito, dado a su
efecto respecto a la idoneidad de los procedimientos posteriores al
dictamen emitido. [CITATION] Ello así, puesto que, el debido proceso de ley exige
proveer a todas las partes plena comprensión de los
pronunciamientos emitidos por los tribunales de justicia, para que
así puedan, de forma oportuna, solicitar los remedios que entiendan
procedentes a su causa. [CITATION]
DPR 245, 254 (2016); [CITATION]
III
En el presente caso, la parte peticionaria sostiene que erró el
[SEGMENT 15]
foro primario al no notificar la Orden mediante la cual le anotó la
rebeldía. Por igual, plantea que el foro de instancia incumplió al no
relevarlo de la referida anotación impuesta.
Tras aplicar la norma antes expuesta a las particularidades
de la causa que nos ocupa, coincidimos en que el foro sentenciador
erró al no dejar sin efecto la anotación de rebeldía de la parte
peticionaria.
Conforme reseñamos, quien solicita que se deje sin efecto una
anotación de rebeldía, debe demostrar: (1) justa causa para la
dilación; (2) probar que tiene una buena defensa en sus méritos, y
(3) que el grado de perjuicio que pueda ocasionarse a la otra parte
es razonablemente mínimo. [CITATION]
supra, pág. 593. KLCE202400275
En el presente caso, la parte peticionaria, demostró que las
notificaciones remitidas fueron notificadas a una dirección
incorrecta. Explicó que las mismas fueron dirigidas al PO Box 6413-
1, Humacao, Puerto Rico 00791, en vez de a HC-03, Box 6413,
Humacao, Puerto Rico 00791.4
Según esbozamos, una orden que no fue notificada
adecuadamente a todas las partes no es vinculante, e impide que
los distintos términos que de ella dimanan comiencen a decursar.
Por ello, es forzoso concluir que la parte peticionaria presentó una
buena defensa en los méritos para justificar el relevo de la anotación
de rebeldía, al demostrar que las notificaciones emitidas, antes de
su comparecencia, fueron defectuosas.
Por otra parte, precisa destacar que el caso de epígrafe se
encuentra en sus etapas iniciales. De modo, es mínimo el perjuicio
que podría causar a la parte recurrida el conceder el relevo de la
rebeldía en cuestión. Además, es menester acentuar que la parte
recurrida manifestó que no tenía objeción con que se le otorgara a
la parte peticionaria un término para que contestara la demanda.
IV
Por los fundamentos que anteceden, se expide el auto
solicitado y se revoca el dictamen recurrido. Por consiguiente, se
deja sin efecto la anotación de rebeldía de la parte peticionaria y se
devuelve el caso al Tribunal de Primera Instancia para que se le
permita a esta presentar su contestación a la demanda.
Lo acordó y manda el Tribunal, y certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
4 Véase, apéndice del recurso, págs. 24-26.
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL XI
APELACIÓN
procedente del Tribunal
COOPERATIVA DE de Primera Instancia
AHORRO Y CRÉDITO Sala de Caguas
CIDREÑA
Caso Núm.
APELANTE KLAN202400355 CD2024CV00079
V. Sala:702
TATIANY J. SOSTO
AMARO Sobre:
APELADA COBRO DE DINERO
ORDINARIO
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Alvarez Esnard, y la Jueza Díaz Rivera.
Brignoni Mártir, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 26 de abril de 2024.
Comparece, Cooperativa de Ahorro y Crédito Cidreña (en lo
sucesivo “la parte apelante”). Ello, mediante el recurso de apelación de
epígrafe. Su comparecencia es a los fines de solicitar nuestra intervención
para que dejemos sin efecto la determinación emitida el 1 de abril de
2024 y notificada el 2 de abril de 2024, por el Tribunal de Primera
Instancia, Sala Superior de Caguas. Mediante la referida determinación,
el tribunal de instancia desestimó la “Demanda” presentada contra
Tatiany J. Sosto Amaro (en adelante, “la apelada”). Ello, bajo el
fundamento de que dicha “Demanda” debía ser radicada de conformidad
con dispuesto en la Regla 60 de las Reglas de Procedimiento Civil, [CITATION]
Por los fundamentos que expondremos, revocamos la
determinación recurrida.
I.
El 22 de marzo de 2024, la parte apelante, presentó la “Demanda”
de epígrafe. En esencia alegó, que el 8 de abril de 2024, perfeccionó
Número Identificador
SEN2024 ________ KLAN202400355
junto a la apelada un contrato de préstamo. Adujo, que como parte del
aludido acuerdo le entregó a la apelada la cantidad de $7,154.00. Según
expresó, la apelada se comprometió a pagar dicha cantidad a través de
un pagaré que suscribió a su favor. Así las cosas, arguyó que la apelada
dejó de efectuar los pagos mensuales estipulados. Consecuentemente,
incumplió con el pago de la referida relación contractual. Por lo cual,
según alegó, la apelada adeudada una cantidad vencida, líquida y
exigible de $5,887.29. Expresó, que la aludida cantidad se desglosaba en
lo siguiente: una suma de $5,500.52 en concepto de principal; y una
cantidad de $386.77 en concepto de intereses y recargos acumulados
hasta la fecha del 27 de febrero de 2024. Añadió, que dichos intereses
continuaban acumulándose a razón de un 13.95% anual. También agregó
que los recargos incrementaban a razón de un cinco por ciento (5%) por
cada pago mensual vencido y no satisfecho. En virtud de ello, suplicó al
foro sentenciador que la apelada le pagara lo adeudado; peticionó
$1,100.10 en concepto de costas, gastos y honorarios de abogado; y
solicitó que el pleito fuera dilucidado por la vía ordinaria.
En reacción, el 2 de abril de 2024, el foro sentenciador notificó una
“Sentencia.” Mediante esta, desestimó la “Demanda” presentada, bajo el
fundamento de que esta debía ser radicada de conformidad con dispuesto
en la Regla 60 de las Reglas de Procedimiento Civil, [CITATION]. En desacuerdo, el 4 de abril de 2024, la parte apelante presentó una
“Moción en solicitud de reconsideración de sentencia desestimando la
demanda.” Acto seguido, el 10 de abril de 2024, presentó un escrito
intitulado “Moción informando el retiro del escrito presentado en el
encasillado 4 del expediente judicial, para proceder con el trámite de
apelación.” Mediante este, retiro oportunamente la moción de
reconsideración presentada. Así pues, el 10 de abril de 2024, la parte
apelante, presentó ante nos un “recurso de apelación.” Por medio de este,
esbozó los siguientes señalamientos de error:
PRIMER SEÑALAMIENTO DE ERROR: Erró el TPI al no
aceptar la voluntad de la Parte Demandante, según le KLAN202400355
provee y faculta la Regla 60 de Procedimiento Civil de
presentar la reclamación de cobro de dinero mediante el
procedimiento ordinario.
SEGUNDO SEÑALAMIENTO DE ERROR: Erró el TPI al
desestimar la demanda por esta haber sido presentada
mediante el Procedimiento de Cobro Ordinario y no al
amparo de la Regla 60 de Procedimiento Civil, como
ordenó, aun cuando la propia Regla 60 establece que la
Parte Demandante tiene la facultad para solicitar que se
tramite su caso bajo el procedimiento ordinario.
II.
A. Desestimación de un pleito:
El Tribunal Supremo de Puerto Rico ha enfatizado que es preciso
tener presente, como principio rector, que las Reglas de Procedimiento
Civil no tienen vida propia y solo existen para viabilizar la consecución del
derecho sustantivo de las partes litigantes. [CITATION], 117 DPR 807, 816 (1986). En virtud de ello, los tribunales deberán
hacer un balance equitativo entre los intereses en conflicto, ejerciendo
especial cuidado al interpretar las reglas procesales para que estas
garanticen una solución justa, rápida y económica de las
controversias. [CITATION], 154 DPR 217, 221
(2001); [CITATION], supra.
Cónsono con tales principios, el Tribunal Supremo ha favorecido
[SEGMENT 16]
enfáticamente que los casos se ventilen en los méritos. [CITATION] y
otros, [CITATION], 132 DPR 115, 124 (1992). Así, pues, ha reiterado
que la desestimación de un caso como sanción debe prevalecer
únicamente en situaciones extremas, en las que haya quedado
demostrado, de manera clara e inequívoca, la desatención y el abandono
total de la parte con interés. Y ello, luego de que la imposición de otras
sanciones haya probado ser ineficaz en el orden de administrar justicia y,
en todo caso, no deberá procederse a ella sin un previo
apercibimiento. [CITATION], supra, pág.
====== End of Document ====== KLAN202400355
222; [CITATION] (1962).
La Regla 39.2 (a) de las de Procedimiento Civil de 2009, 32 LPRA
Ap. V R. 39.2 (a), acogió los principios esbozados por el Tribunal
Supremo de Puerto Rico, por lo que dispone como sigue:
(a) Si el demandante dejare de cumplir con estas reglas o
con cualquier orden del tribunal, el tribunal a iniciativa propia
o a solicitud del demandado podrá decretar la desestimación
del pleito o de cualquier reclamación contra él, o la
eliminación de las alegaciones, según corresponda.
Cuando se trate de un primer incumplimiento, la
severa sanción de la desestimación de la demanda o la
eliminación de las alegaciones tan sólo procederá
después que el tribunal, en primer término, haya
apercibido al abogado o abogada de la parte de la
situación y se le haya concedido la oportunidad para
responder. Si el abogado o abogada de la parte no
responde a tal apercibimiento, el tribunal procederá a
imponer sanciones al abogado o abogada de la parte y se
notificará directamente a la parte sobre la situación. Luego
de que la parte haya sido debidamente informada o
apercibida de la situación y de las consecuencias que pueda
tener el que la misma no sea corregida, el tribunal podrá
ordenar la desestimación del pleito o la eliminación de las
alegaciones. El tribunal concederá a la parte un término de
tiempo razonable para corregir la situación que en ningún
caso será menor de treinta (30) días, a menos que las
circunstancias del caso justifiquen que se reduzca el
término. (Énfasis nuestro).
[…]
Así pues, “antes de ordenar la desestimación del pleito o la
eliminación de las alegaciones, el tribunal tiene que ejecutar el orden de
prelación que establece la Regla 39.2(a) de Procedimiento Civil, [supra.]”
[Mitsubishi Motor Sales of Caribbean, Inc. v. Lunor, Inc. y otros, 2023 TSPR 110] [CITATION]. A tales efectos, si la parte apercibida sobre un incumplimiento
no toma una acción correctiva, el tribunal se encontrará en posición para
imponer la sanción correspondiente. Íd. Estas salvaguardas procesales se
han adoptado en nuestro ordenamiento jurídico, para evitar que la
desestimación del pleito sea un remedio que se tome en primera
instancia. Toda vez que, esta implica la muerte procesal del pleito. Íd. ```plaintext
KLAN202400355
B. Reclamaciones en cobro de dinero al amparo de la Regla 60 de las
Reglas de Procedimiento Civil, supra.
En los casos sobre cobro de dinero, existen algunas circunstancias
en las que el promovente de una reclamación tiene la facultad de decidir
si presenta esta por la vía ordinaria o sumaria. A esos efectos, la Regla
60 de las Reglas de Procedimiento Civil, supra, dispone, en lo atinente, lo
siguiente:
Cuando se presente un pleito en cobro de una suma
que no exceda los quince mil (15,000) dólares, excluyendo
los intereses, y no se solicite en la demanda tramitar el
caso bajo el procedimiento ordinario, la parte
demandante deberá presentar un proyecto de notificación-
citación que será expedido inmediatamente por el Secretario
o Secretaria. La parte demandante será responsable de
diligenciar la notificación-citación dentro de un plazo de diez
(10) días de presentada la demanda, incluyendo copia de
ésta, mediante entrega personal conforme a lo dispuesto en
la Regla 4 o por correo certificado. (Énfasis Suplido).
[…]
El propósito cardinal de la Regla 60 de Procedimiento Civil, supra,
estriba en conseguir la agilización y simplificación de los procedimientos
“en acciones de reclamaciones de cuantías pequeñas, para así lograr la
facilitación del acceso a los tribunales y una justicia más rápida, justa y
económica en este tipo de reclamación”. [CITATION]. De esta manera, un demandante
puede someter su reclamación a través de un proceso sumario. En dicho
proceso, contrario al trámite ordinario, las Reglas de Procedimiento Civil
aplican de manera supletoria. [CITATION]. Al ser así, “el emplazamiento por edicto, la contestación a la
demanda, el descubrimiento de prueba, las reconvenciones, la demanda
contra terceros, entre otros, son preceptos incompatibles con esta
herramienta sumaria”. Íd, pág. 108.
De otra parte, además de la facultad inicial que tiene un
demandante de solicitar que una reclamación en cobro de dinero, cuya
cuantía no exceda los $15,000, sea ventilada por la vía ordinaria, ambas
partes pueden peticionar que una reclamación que haya comenzado por
``` KLAN202400355
la vía sumaria pueda dilucidarse por la vía ordinaria. Cónsono con ello, la
Regla 60 de las Reglas de Procedimiento Civil, supra, establece en lo
pertinente lo siguiente:
Si se demuestra al Tribunal que la parte demandada tiene
alguna reclamación sustancial, o en el interés de la justicia,
cualquiera de las partes tendrá derecho a solicitar que el
pleito se continúe tramitando bajo el procedimiento ordinario
prescrito por estas reglas o el Tribunal podrá motu proprio
ordenarlo, sin que sea necesario cancelar la diferencia en
aranceles que correspondan al procedimiento ordinario.
Para la tramitación de un pleito conforme al procedimiento
establecido en esta Regla, la parte demandante debe
conocer y proveer el nombre y la última dirección conocida
de la parte demandada al momento de la presentación de la
acción judicial. De lo contrario, el pleito se tramitará bajo el
procedimiento ordinario.
Conforme la normativa esbozada, nuestro ordenamiento procesal
civil provee varias instancias en las que un pleito puede dilucidarse por la
vía ordinaria. Estas se pueden resumir en las siguientes: (1) cuando la
parte demandada demuestra que tiene una reclamación sustancial; (2)
cuando, en el interés de la justicia, las partes ejercen su derecho de
solicitar que el pleito se continúe ventilando por el trámite civil ordinario;
(3) partiendo de ese mismo interés, el tribunal motu proprio tiene la
discreción para así ordenarlo, y (4) cuando la parte demandante no
conoce ni provee el nombre y la dirección del deudor. [CITATION], pág. 637-638.
III.
En esencia, la parte apelante plantea que incidió el foro
sentenciador al desestimar la “Demanda” presentada, cuando esta fue
radicada según lo dispuesto en la Regla 60 de las Reglas de
Procedimiento Civil, supra. Le asiste la razón. Veamos.
De entrada, conforme fue esbozado nuestro ordenamiento jurídico
permite que los casos de cobro de dinero cuya cuantía no exceda los
$15,000, puedan ser ventilados por la vía ordinaria. Esto, es permisible en
dos (2) etapas del procedimiento judicial. La primera, mediante una
petición efectuada por la parte demandante al presentar su reclamación; y
la segunda, durante el transcurso del pleito. Ello, a instancia de parte o KLAN202400355
del propio tribunal. En el caso ante nuestra consideración, la parte
apelante, expuso debidamente en la “Demanda” una petición a los fines
de que el pleito fuera ventilado bajo el procedimiento ordinario. Dicha
acción cumple cabalmente con los requerimientos de la Regla 60 de
Procedimiento Civil, [CITATION]. Por lo cual, la referida solicitud impedía por sí
sola que se desestimara automáticamente la “Demanda” presentada.
De otra parte, es preciso destacar que nuestro ordenamiento
jurídico favorece que los casos se ventilen en sus méritos, y que la
ciudadanía tenga acceso al foro judicial. A tenor de ello, según fue
expuesto, la desestimación es una acción que debe ser tomada como
[SEGMENT 17]
último recurso. Antes de dictarse una sentencia desestimatoria, el
tribunal, debe apercibir sobre la existencia de algún incumplimiento y las
consecuencias que acarrearía su falta de corrección. Ello, no sucedió en
el presente caso, dado que, el foro sentenciador optó en primera instancia
por desestimar la reclamación incoada. Por tanto, es forzoso concluir que
dicho foro erró al dictar una “Sentencia” desestimatoria. Esto, por la razón
de que dejó de cumplir con el orden de prelación que se concibe previo al
dictamen de desestimación, y por no existir algún incumplimiento de la
parte apelante con lo dispuesto en la Regla 60 de las Reglas de
Procedimiento Civil, [CITATION].
IV.
Por los fundamentos expuestos, revocamos la determinación
recurrida. Consecuentemente, devolvemos el caso para la continuación
de los procedimientos de conformidad a lo aquí dictaminado.
Lo acordó y manda el Tribunal, y lo certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
CARMEN E. MARTÍNEZ CERTIORARI
BARROSO Procedente del
Tribunal de Primera
Recurrida Instancia, Sala de
Bayamón
v. KLCE202400243
Civil Núm.:
EDGAR ÁLVAREZ DEL BY2023RF01952
MANZANO ORTIZ
Sobre: Custodia –
Peticionario Monoparental o
Compartida
Panel integrado por su presidenta, la Juez Brignoni Mártir, el
Juez Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz
Rivera.
Álvarez Esnard, jueza ponente
SENTENCIA
En San Juan, Puerto Rico, a 12 de abril de 2024.
Comparece ante nos el señor Edgar Álvarez del Manzano Ortiz
(“señor Álvarez del Manzano Ortiz” o “Peticionario”) mediante
Recurso de Certiorari presentado el 28 de febrero de 2024. Nos
solicita que revoquemos una Orden emitida y notificada el 4 de enero
de 2024 por el Tribunal de Primera Instancia, Sala Superior de
Bayamón (“foro primario” o “foro a quo”). Mediante la referida
determinación, el foro primario impuso una anotación de rebeldía al
Peticionario. Oportunamente, éste presentó Moción de
Reconsideración de Anotación de Rebeldía. Evaluados sus
argumentos, el 29 de enero de 2024, el foro a quo emitió una
Resolución declarando No Ha Lugar la reconsideración solicitada.
Por los fundamentos expuestos a continuación, expedimos el
auto de certiorari y revocamos el dictamen recurrido.
I.
El 3 de noviembre de 2023, la señora Carmen E. Martínez
Barroso (“señora Martínez Barroso” o “Recurrida”) instó una
Demanda de Custodia, Relaciones Filiales y Alimentos contra el
Número Identificador
SEN(RES)2024____________ KLCE202400243
señor Álvarez del Manzano Ortiz.[CITATION] En síntesis, alegó que es tía de la
menor A.A.D.M., quien se encuentra bajo su cuidado tras el
fallecimiento de su madre. Contextualizó que el padre de ésta
enfrenta un caso por presuntos actos lascivos. Ante tales
circunstancias, solicitó la custodia exclusiva de la menor.
El 4 de diciembre de 2023, un alguacil emplazó
personalmente al Peticionario. En consecuencia, el 27 de diciembre
de 2023, la Recurrida presentó una Moción Sometiendo Documento
en el Sistema Unificado de Manejo y Administración de Casos
(SUMAC).[CITATION] En este documento, acreditó el diligenciamiento del
emplazamiento.
Sin comparecer aún el demandado, el 4 de enero de 2024, el
Tribunal de Primera Instancia emitió una Orden, notificada ese
mismo día, imponiéndole una anotación de rebeldía.[CITATION] Inconforme
con tal dictamen, el 9 de enero de 2024, el Peticionario sometió
una Moción Asumiendo Representación Legal; Moción de
Reconsideración de Anotación de Rebeldía y Solicitando Traslado.[CITATION]
En lo concerniente, especificó que el 4 de diciembre de 2023 fue
emplazado. Señaló que el foro primario emitió la anotación de
rebeldía exactamente el día en que venció el término para presentar
su alegación responsiva. Puntualizó, además, que no ha actuado
con temeridad ni ha abusado de los derechos procesales y
sustantivos que le asisten. A la luz del trámite procesal del caso,
peticionó dejar sin efecto la anotación de rebeldía.
Consecuentemente, el 10 de enero de 2024, el foro primario emitió
una Resolución y Orden, requiriendo a la parte Recurrida presentar
su réplica dentro del término de diez (10) días.[CITATION] KLCE202400243
El 25 de enero de 2024, el Peticionario presentó una Moción
para que Se Dé por Sometida y Declare Con Lugar la Reconsideración
y Ordene el Traslado. Entre otros extremos, señaló que la Recurrida
no cumplió con la Orden, ni presentó prórroga para someter su
respuesta. En vista de lo anterior, nuevamente solicitó dejar sin
efecto la anotación de rebeldía. Tras evaluar sus argumentos, el
29 de enero de 2024, el tribunal recurrido emitió una Resolución,
notificada ese mismo día, declarando No Ha Lugar a la petición de
reconsideración.
Eventualmente, el 6 de febrero de 2024, el Peticionario
presentó una Moción Solicitando Aclaración de Resolución. En
particular, requirió al tribunal especificar cuál de los remedios
solicitados declaró No Ha Lugar. Luego de examinar su solicitud, el
12 de febrero de 2024, el foro a quo emitió una Resolución,
notificada el 13 de febrero de 2024. En ese dictamen, resolvió que
“[l]a determinación del tribunal atiende las solicitudes que surgen
del escrito”.
Insatisfecho aun, el 28 de febrero de 2024, el señor Álvarez
del Manzano Ortiz acudió ante nos mediante un Recurso de
Certiorari. En su escrito, formuló el siguiente señalamiento de error:
ERRÓ EL TPI AL DENEGAR ARBITRARIAMENTE LA
SOLICITUD DE DEJAR SIN EFECTO LA ANOTACIÓN
DE REBELDÍA SIN APLICAR LOS REQUISITOS
ESENCIALES PARA EJERCER LA DISCRECION
JUDICIAL: 1) BUENAS DEFENSAS DEL
PETICIONARIO-DEMANDADO; 2) SI SE OCASIONARÍA
PERJUICIOS; 3) SI HA MEDIADO ÁNIMO CONTUMAZ
O TEMERARIO DEL PETICIONARIO-DEMANDADO.
El 1 de marzo de 2024, esta Curia emitió una Resolución
concediendo a la parte Recurrida un término de diez (10) días para
que se expresara en torno al recurso presentado. Ante el
incumplimiento de la parte Recurrida, procedemos a resolver la
[CITATION] Íd., págs. 18-19.
[CITATION] Íd., pág. 20.
[CITATION] Íd., págs. 21-22.
[CITATION] Íd., pág. 23. KLCE202400243
controversia ante nuestra consideración sin el beneficio de su
comparecencia.
II.
A. Certiorari
“[U]na resolución u orden interlocutoria, distinto a una
sentencia, es revisable mediante certiorari ante el Tribunal de
Apelaciones”. [CITATION] (2019). “El recurso de certiorari es un vehículo procesal discrecional
que permite a un tribunal de mayor jerarquía revisar las
determinaciones de un foro inferior”. [CITATION] resuelto el 8 de mayo de 2023. Véase, además, [CITATION].
La Regla 52.1 de Procedimiento Civil, 32 LPRA Ap. V, R. 52.1,
establece que el recurso de certiorari solo se expedirá cuando se
recurra de (1) una resolución u orden sobre remedios provisionales
o injunction o (2) la denegatoria de una moción de carácter
[SEGMENT 18]
dispositivo. Por excepción, se puede recurrir también de:
(1) decisiones sobre la admisibilidad de testigos o peritos;
(2) asuntos de privilegios; (3) anotaciones de rebeldía; (4) en casos
de relaciones de familia, o (4) en casos que revistan interés público.
Íd. De igual manera, puede revisarse “cualquier otra situación en la
cual esperar a la apelación constituiría un fracaso irremediable de
la justicia”. Íd. Los límites a la facultad revisora del foro apelativo
tienen como propósito evitar la dilación que causaría la revisión
judicial de controversias que pueden esperar a ser planteadas a
través del recurso de apelación. [CITATION] (2019).
No obstante, la discreción del tribunal apelativo en este
aspecto no opera en un vacío ni sin parámetros. [CITATION] (2019). La Regla 40 del KLCE202400243
Reglamento del Tribunal de Apelaciones, 4 LPRA Ap. XXII-B, R. 40,
señala los criterios que se deben tomar en consideración al evaluar
si procede expedir un auto de certiorari. Véase, además, [CITATION].
2023 TSPR 145, resuelto el 19 de diciembre de 2023. Estos criterios
son:
(A) Si el remedio y la disposición de la decisión
recurrida, a diferencia de sus fundamentos, son
contrarios a derecho.
(B) Si la situación de hechos planteada es la más
indicada para el análisis del problema.
(C) Si ha mediado prejuicio, parcialidad o error craso y
manifiesto en la apreciación de la prueba por el
Tribunal de Primera Instancia.
(D) Si el asunto planteado exige consideración más
detenida a la luz de los autos originales, los cuales
deberán ser elevados, o de alegatos más elaborados.
(E) Si la etapa del procedimiento en que se presenta el
caso es la más propicia para su consideración.
(F) Si la expedición del auto o de la orden de mostrar
causa no causan un fraccionamiento indebido del
pleito y una dilación indeseable en la solución final
del litigio.
(G) Si la expedición del auto o de la orden de mostrar
causa evita un fracaso de la justicia.
El Tribunal Supremo ha expresado que la discreción es “una
forma de razonabilidad aplicada al discernimiento judicial para
llegar a una conclusión justiciera”. [CITATION], págs. 712-713. No obstante, “[a]l denegar la
expedición de un recurso de certiorari en estos casos, el Tribunal de
Apelaciones no tiene que fundamentar su decisión”. 32 LPRA Ap. V,
R. 52.1.
B. Discreción judicial
La discreción judicial es el “poder para decidir en una u otra
forma, esto es, para escoger entre uno o varios cursos de acción”.
[CITATION]. Su ejercicio está atado KLCE202400243
inexorablemente al concepto de la razonabilidad. [CITATION]. Ahora bien, la discreción judicial
no es irrestricta. Por tanto, los tribunales no puedan actuar de
una forma u otra en abstracción del resto del derecho. [CITATION].
El ejercicio discrecional es una forma de razonabilidad
aplicada al discernimiento judicial para llegar a una conclusión
justiciera. [CITATION], pág. 339. En ese
sentido, el Tribunal Supremo de Puerto Rico ha resuelto que la
discreción judicial cede:
cuando no toma en cuenta e ignora en la decisión que
emite, sin fundamento para ello, un hecho material
importante que no podía ser pasado por alto; cuando el
juez, por el contrario, sin justificación ni fundamento
alguno, concede gran peso y valor a un hecho
irrelevante e inmaterial y basa su decisión
exclusivamente en éste; o cuando, [...] [tras] considerar
y tomar en cuenta todos los hechos materiales e
importantes y descartar los irrelevantes, el juez los
sopesa y calibra livianamente. [CITATION].
Los escenarios descritos constituyen aquellas circunstancias
“donde la discreción del juzgador de primera instancia no condujo a
una determinación razonable”. [CITATION]. En tales casos, los foros apelativos
ostentamos facultad para revisar aquel error derivado de “la
interpretación o aplicación de cualquier norma procesal o de
derecho sustantivo”. [CITATION].
No obstante, los tribunales revisores no debemos intervenir
en las determinaciones de hechos del tribunal de instancia,
“salvo que se pruebe que dicho foro actuó con prejuicio o parcialidad
o incurrió en craso abuso de discreción o en error manifiesto”.
(Énfasis nuestro). [CITATION]. Véase,
además, [CITATION].
====== End of Document ====== KLCE202400243
C. Anotación de rebeldía
La anotación de rebeldía es un mecanismo procesal que
procura “disuadir a aquellos que recurran a la dilación de los
procedimientos como una estrategia de litigación”. [CITATION]. A esos
efectos, la Regla 45.1 de Procedimiento Civil, 32 LPRA Ap. V, R. 45.1,
delimita los escenarios para ordenar la anotación de rebeldía,
estableciendo lo siguiente:
Cuando una parte contra la cual se solicite una
sentencia que concede un remedio afirmativo haya
dejado de presentar alegaciones o de defenderse en otra
forma según se dispone en estas reglas, y este hecho se
pruebe mediante una declaración jurada o de otro
modo, el Secretario o Secretaria anotará su rebeldía.
El tribunal a iniciativa propia o a moción de parte,
podrá anotar la rebeldía a cualquier parte conforme
a la Regla 34.3(b)(3).
Dicha anotación tendrá el efecto de que se den por
admitidas las aseveraciones de las alegaciones
afirmativas, sujeto a lo dispuesto en la Regla 45.2(b).
La omisión de anotar la rebeldía no afectará la validez
de una sentencia dictada en rebeldía. (Énfasis suplido).
De conformidad con la Regla antes citada, el tribunal puede
ordenar la anotación cuando la parte demandada: (1) no comparece
después de haber sido emplazado, (2) no se defiende mediante
moción (3) ni presenta oportunamente la contestación a la demanda.
[CITATION]. De igual manera, procede la anotación cuando “una de las partes en
el pleito ha incumplido con algún mandato del tribunal, lo que
motiva a éste a imponerle la rebeldía como sanción”. [CITATION].
Una vez el tribunal anota la rebeldía, se dan por admitidos
todos los hechos bien alegados en la demanda o la alegación que se
====== Instruction completed ====== KLCE202400243
haya formulado en contra del rebelde, y se autoriza al tribunal a
dictar sentencia, si esta procede como cuestión de derecho.
[CITATION], supra.
Este mecanismo brinda un remedio coercitivo contra una parte
adversaria a la cual, habiéndosele concedido la oportunidad de
refutar la reclamación, por su pasividad o temeridad opta por no
defenderse. [CITATION].
Ahora bien, los tribunales no son meros autómatas obligados
a conceder indemnizaciones por estar dilucidándose un caso en
rebeldía. [CITATION], supra, pág. 102. La
anotación de rebeldía se debe dar dentro del marco de lo que es
justo, y la ausencia de tal justicia equivaldría a un abuso de
discreción. (Énfasis nuestro). [CITATION], supra, pág. 590. Aunque la rebeldía constituye un
mecanismo procesal discrecional, ésta no se sostendrá ante el
ejercicio burdo o injusto. Íd. (Énfasis nuestro).
Existen diversas vías procesales para dejar sin efecto una
anotación de rebeldía dictada erróneamente. En primer lugar, la
parte interesada puede solicitar el levantamiento de la anotación al
amparo de la Regla 45.1 de Procedimiento Civil, supra. En [CITATION], el Máximo foro delineó la
siguiente interpretación en torno a la aludida regla:
[S]i un codemandado a quien se le anota la rebeldía
por alegadamente no haber contestado en el
término, puede probar que sí había contestado y que
la anotación de la rebeldía en su contra obedeció a
una confusión por parte del Secretario o la
Secretaria ante los múltiples codemandados en el
expediente, su remedio es, de igual manera, solicitar
que se levante la rebeldía por error en la
implementación de la Regla 45.1 de Procedimiento
Civil, supra. Esto es, la parte no dejó de presentar
alegaciones o de defenderse, sino que la anotación
obedeció a un error del tribunal. (Énfasis nuestro).
[SEGMENT 19]
En estos casos, el “fundamento en derecho para lograr tal
levantamiento sería el incumplimiento por parte del promovente con KLCE202400243
la Regla 45.1 de Procedimiento Civil, supra”. Íd. Además, no tiene
que demostrar la existencia de causa justificada. Íd.
De otro lado, la Regla 45.3 de Procedimiento Civil, supra,
R. 45.3, establece que “[e]l tribunal podrá dejar sin efecto una
anotación de rebeldía por causa justificada, y cuando se haya
dictado sentencia en rebeldía, podrá asimismo dejarla sin efecto de
acuerdo con la Regla 49.2”. En tales escenarios, la parte puede
presentar evidencia circunstancial que a juicio del tribunal
justifique la dilación, o se pueda probar que tiene buenas defensas
en sus méritos y que el grado de perjuicio que puede ocasionarse a
la otra parte con relación al proceso es mínimo. J.A. Echevarría
Vargas, Procedimiento Civil Puertorriqueño, 1ra. ed. rev., Colombia,
2012, pág. 287. Véase, además, [CITATION], supra, pág. 593.
La norma imperante favorece que la precitada regla se
interprete de manera liberal. [CITATION], supra, pág. 592. Por lo oneroso y drástico que resulta sobre las
partes demandadas o querelladas un dictamen en rebeldía, el
ordenamiento ha establecido que cualquier duda se deberá
resolver a favor del que solicita que se deje sin efecto la
anotación de rebeldía, a fin de que el caso pueda verse en los
méritos. [CITATION], 99 DPR 805, 811 (1971). Ello, a
su vez, propicia un “enfoque integral, pragmático y creativo” de las
Reglas de Procedimiento Civil. [CITATION], 192 DPR 279, 286 (2015). Consecuentemente, se salvaguarda el
debido proceso de ley de las partes, cuya finalidad permite que las
personas tengan derecho a un proceso justo con todas las garantías
de ley aplicables. [CITATION] resuelto el
22 de diciembre de 2023. KLCE202400243
III.
En el presente caso, el señor Álvarez del Manzano Ortiz
argumenta que incidió el foro primario al imponerle una anotación
en rebeldía. En particular, arguye que erró al no examinar el
comprobante electrónico, cuyo contenido evidencia que su primera
comparecencia quedó registrada el 4 de enero de 2024.10 Ante tales
alegaciones, solicita dejar sin efecto la anotación de rebeldía.
Tras evaluar sosegadamente el expediente ante nuestra
consideración, resolvemos que incidió el Tribunal de Primera
Instancia al ordenar la anotación de rebeldía. El remedio decretado
constituye una medida extrema, contraria al principio que favorece
la solución justa, económica y rápida de los procedimientos. Véase,
Regla 1 de Procedimiento Civil, 32 LPRA Ap. V, R. 1. Además, priva
al Peticionario de su derecho a un día en corte en contravención al
debido proceso de ley.
Surge del expediente que el Peticionario recibió el
emplazamiento de la demanda el 4 de diciembre de 2023.
Transcurrido el término para presentar su alegación responsiva, el
4 de enero de 2024, el foro primario, automáticamente, le
impuso la anotación de rebeldía. En consecuencia, el 9 de enero
de 2024, el Peticionario presentó su Moción Asumiendo
Representación Legal; Moción de Reconsideración de Anotación de
Rebeldía y Solicitando Traslado.11 En este escrito, advirtió que el
4 de enero de 2024 intentó presentar una Moción Solicitando
Prórroga y Traslado a Tribunal de Caguas, sin embargo, ésta no
quedó sometida por problemas técnicos con el Sistema Unificado del
Manejo y Administración de Casos (SUMAC).12
10 [CITATION] KLCE202400243
Ante las circunstancias expuestas, no contemplamos un
escenario de pasividad o dejadez, que ameritase dictar la anotación
de rebeldía. En específico, no identificamos un contexto de
incomparecencia o incumplimiento de orden judicial por parte del
Peticionario. Por tanto, el foro a quo incurrió en abuso de discreción
al no levantar la anotación de rebeldía, y consecuentemente, emitir
un dictamen en abstracción de los criterios establecidos en la
Regla 45.1 de Procedimiento Civil, supra, y su jurisprudencia
interpretativa.
Recordemos, pues, que la anotación de rebeldía constituye
una sanción extrema aplicable exclusivamente a aquellas
situaciones en las que una parte incurra en dilación como estrategia
de litigación. [CITATION], supra.
Adviértase que este mecanismo debe activarse en
circunstancias meritorias dentro de un marco de justicia. De lo
contrario, una anotación de rebeldía sin un análisis ponderado
implica severas consecuencias sobre el debido proceso de ley de
la parte perjudicada, tal como ocurrió en el caso presente. En
vista de lo anterior, resolvemos que el tribunal recurrido excedió de
su ejercicio discrecional al no dejar sin efecto la anotación de
rebeldía.
IV.
Por los fundamentos expuestos, expedimos el auto de
certiorari y revocamos el dictamen recurrido. Consecuentemente,
devolvemos el caso al Tribunal de Primera Instancia para la
continuidad de los procedimientos de conformidad con lo aquí
resuelto.
Lo acordó y manda el Tribunal, y lo certifica la Secretaria del
Tribunal de Apelaciones.
LCDA. LILIA M. OQUENDO SOLÍS
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL VII
Certiorari
CONSEJO DE TITULARES acogido como
DEL CONDOMINIO PLAYA Apelación
AZUL II REPRESENTADO procedente del
POR SU JUNTA DE Tribunal de
DIRECTORES Primera Instancia,
[CITATION] Sala de Carolina
Apelado
Sobre:
v. Cobro de Dinero;
Incumplimiento de
GONZÁLEZ EQUIPOS, INC. Contrato
Apelante Caso Núm.:
CA2023CV00878
Panel integrado por su presidenta, la Juez Domínguez Irizarry, la
Juez Grana Martínez y el Juez Pérez Ocasio
Domínguez Irizarry, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 12 de enero de 2024.
La parte apelante, González Equipos, Inc., comparece ante
nos para que dejemos sin efecto la determinación emitida y
notificada por el Tribunal de Primera Instancia, Sala de Carolina, el
1 de agosto de 2023. Mediante el referido dictamen, el foro primario
le anotó la rebeldía a la parte apelante, y declaró con lugar una
acción en cobro de dinero instada por la parte apelada, el Consejo
de Titulares del Condominio Playa Azul II.
Por los fundamentos que expondremos a continuación, se
confirma la sentencia apelada.
I.
El 22 de marzo de 2023, la parte apelada presentó una
Demanda sobre cobro de dinero e incumplimiento de contrato en
contra del apelante. En el pliego, alegó que suscribió un contrato de
obra con González Equipos el 31 de agosto de 2012, posteriormente
enmendado el 28 de febrero de 2013. Detalló que al realizar los
pagos por los servicios rendidos bajo el referido contrato se
Número Identificador
SEN2024________________ KLCE202301086
efectuaron pagos duplicados. El Consejo de Titulares aseveró que le
remitió una comunicación extrajudicial al apelante el 10 de enero de
2022, en la cual le solicitó el rembolso de los mencionados pagos.
No obstante, indicó que, a la fecha de la radicación de la demanda,
González Equipos no había respondido a la referida comunicación,
ni devuelto el dinero. En virtud de lo anterior, le solicitó al tribunal
que condenara al apelante a pagar la suma retenida, la cual,
presuntamente, ascendía a treinta mil doscientos siete dólares con
cuarenta y ocho centavos ($30,207.48), más el pago de los intereses
acumulados desde que se le requirió por primera vez la devolución
del dinero. A su vez, peticionó que se le compensara por las costas
y los gastos del procedimiento, y se le otorgara una suma por
concepto de honorarios de abogado.
El 3 de mayo de 2023, la parte apelada le notificó al foro
primario que había diligenciado el emplazamiento a González
Equipos el 27 de abril de 2023, mediante entrega personal.
[SEGMENT 20]
Transcurrido el término para que el apelante presentara su
alegación responsiva, el 2 de junio de 2023, el Consejo de Titulares
presentó una solicitud mediante la cual peticionó que se le anotara
la rebeldía a la parte apelante y se dictara sentencia conforme a las
alegaciones de la demanda. En el escrito, especificó que el término
de treinta (30) días provisto por las Reglas de Procedimiento Civil
para la contestación a la demanda había expirado sin que hubiese
comparecido ante el tribunal. Además, planteó que, por la demanda
versar sobre una reclamación en cobro de dinero de una suma
líquida, conforme la Regla 45. 2(a) de Procedimiento Civil, [CITATION], procedía dictar sentencia en rebeldía.
En respuesta, el 6 de junio de 2023, el apelante compareció
ante el tribunal de instancia mediante una Moción Anunciando
Representación Legal. En la misma, le solicitó al tribunal una KLCE202301086
prórroga de treinta (30) días para presentar su contestación a la
demanda.
Evaluadas ambas posturas, el 11 de junio de 2023, notificada
el 14 del mismo mes y año, el foro de primera instancia emitió una
Resolución mediante la cual declaró No Ha Lugar la solicitud de
anotación de rebeldía. Ese mismo día, el referido foro emitió una
Orden concediéndole al apelante hasta el 5 de julio de 2023 para
contestar la demanda.
Luego de aproximadamente un mes de haber vencido el
referido término, el 1 de agosto de 2023, la parte apelada solicitó
nuevamente que se le anotara la rebeldía al apelante y se dictara
sentencia a su favor. En el escrito, puntualizó que la parte apelante
no había presentado su contestación a la demanda, ni se había
expresado en cumplimiento a la orden previamente dictada por el
foro primario. Así, peticionó que se dictara sentencia en rebeldía,
conforme a las alegaciones de la demanda.
Ese mismo día, luego de evaluado el petitorio de la parte
apelada, el foro primario emitió la Sentencia apelada. Mediante el
aludido dictamen, le anotó la rebeldía a González Equipos y dio por
admitidos todos los hechos que se relataron en la demanda. En
virtud de ello, condenó al apelante a pagarle al Consejo de Titulares
la suma de a treinta mil doscientos siete dólares con cuarenta y ocho
centavos ($30,207.48), más los intereses legales desde el 10 de enero
de 2022 hasta el pago de la totalidad de la deuda.
Inconforme, el 14 de agosto de 2023, el apelante solicitó
Reconsideración de Sentencia y Anotación de Rebeldía.
Esencialmente, alegó que su representante legal estuvo fuera de sus
labores por asuntos médicos que se le presentaron de imprevisto, y
que, por error e inadvertencia, la alegación responsiva quedó KLCE202301086
pendiente de presentación.1 Además, arguyó que en virtud de las
Reglas 45.3 y 49.2 de Procedimiento Civil el tribunal podía por
causas justificadas dejar sin efecto una anotación de rebeldía y
relevar a una parte de una sentencia dictada en rebeldía. Al amparo
de lo expuesto, le solicitó al foro primario que dejara sin efecto la
anotación de rebeldía, y que permitiera la contestación a la
demanda, la cual, se presentaría ese mismo día.
En respuesta a la petición, ese mismo día, el tribunal de
instancia emitió una Orden, notificada al siguiente día. Mediante
esta, indicó que procedería a atender el reclamo de la parte apelante,
una vez la parte apelada se expresara en cuanto a la solicitud de
reconsideración. Así, mediante una orden notificada en igual fecha,
le concedió a la parte apelada quince (15) días para incoar su
posición.
En cumplimiento con lo ordenado por el tribunal, el 30 de
agosto de 2023, el Consejo de Titulares presentó oposición a la
reconsideración. Arguyó que, para que el tribunal pudiese relevar a
González Equipos de la anotación de rebeldía, debía existir una
causa justificada. Enfatizó que en el presente caso el apelante, para
justificar no haber presentado su alegación responsiva, se limitó a
indicar que su representante legal tuvo un imprevisto médico, y no
incluyó ningún dato o documento adicional que permitiera al
tribunal determinar si tales circunstancias eran ciertas. A su vez,
aseveró que los criterios que el tribunal debía considerar para
determinar si procedía dejar sin efecto la anotación de rebeldía eran
similares a los utilizados para evaluar la procedencia de una moción
de relevo de sentencia en virtud de la Regla 49.2 de Procedimiento
Civil. Así, pues, arguyó que el tribunal debía de tomar en cuenta si
el apelante tenía una buena defensa en sus méritos.2 En vista de
1 Apéndice IX del recurso, pág. 19.
2 Apéndice XI del recurso, pág. 27. KLCE202301086
ello, resaltó que González Equipos había guardado silencio en su
escrito en cuanto a sus defensas. Al amparo de lo expuesto, la parte
apelada le solicitó al tribunal que declarara sin lugar la solicitud de
reconsideración.
Examinadas las posturas de las partes, el 31 de agosto de
2023, el foro primario emitió una Resolución en la cual declaró No
Ha Lugar la solicitud de reconsideración instada por el apelante.
Aún en desacuerdo, el 2 de octubre de 2023, González
Equipos compareció ante nos mediante un recurso de Certiorari. En
el mismo formuló el siguiente planteamiento:
Erró el Honorable Tribunal de Primera Instancia [al]
declarar “No Ha Lugar” la solicitud de reconsideración
y anotación de rebeldía contra la parte demandada toda
vez que existían causas justificadas y controversias
entre las partes que ameritaban ver el caso en sus
méritos.
Tras examinar el recurso, el 3 de octubre de 2023, emitimos
una Resolución en la cual acogimos el mismo como una apelación
por recurrir de una Sentencia emitida por el tribunal de instancia.
Luego de examinar el expediente que nos ocupa, y contando
con la postura de la parte apelada, procedemos a expresarnos
II.
Cónsono con lo estatuido en la Regla 45.1 de las de
Procedimiento Civil, 32 LPRA Ap. V, R. 45.1, procede una anotación
de rebeldía cuando una parte contra la cual se ha solicitado una
sentencia que conceda algún remedio afirmativo, deje de presentar
la correspondiente alegación o de defenderse en otra forma. [CITATION]. En
nuestro sistema de ley, la rebeldía se concibe como la posición
procesal que asume aquella parte que, tras ser requerido
judicialmente, opta por no ejercitar su derecho a defenderse. R.
Hernández Colón, Práctica Jurídica de Puerto Rico; Derecho Procesal KLCE202301086
Civil, Lexis Nexis de Puerto Rico, Inc., 6ta Edición, 2017, pág.
327.
El remedio dispuesto en la antes aludida Regla opera en dos
situaciones: cuando el demandado no cumple con el requisito de
comparecer a contestar la demanda o defenderse, o cuando una de
las partes en un pleito incumple con algún mandato del tribunal, y
este le impone la rebeldía a manera de sanción. [CITATION] El mismo, además, tendrá como consecuencia
jurídica que se estimen aceptadas todas y cada una de las materias
bien alegadas en la demanda, o aquella formulada contra el rebelde,
y que se autorice al tribunal a dictar sentencia, si esta procede en
derecho. [CITATION]
Ahora bien, los tribunales tienen la facultad de dejar sin efecto
una anotación de rebeldía cuando exista justa causa para ello.
Igualmente, pueden, de conformidad con lo dispuesto en la Regla
49.2 de Procedimiento Civil, 32 LPRA Ap. V, R. 49.2, dejar sin efecto
una sentencia dictada en rebeldía. Regla 45.3 de Procedimiento
Civil, 32 LPRA Ap. V, R. 45.3.
No obstante lo anterior, la parte que solicita que se deje sin
efecto una anotación de rebeldía, tiene el deber de presentar
evidencia de circunstancias que a juicio del tribunal demuestre:
justa causa para la dilación; probar que tiene una buena defensa en
sus méritos y que el grado de perjuicio que pueda ocasionarse a la
otra parte es razonablemente mínimo. [CITATION] No son suficientes escuetas
alegaciones o someros argumentos al respecto. [CITATION]
====== End of Document ====== KLCE202301086
De otra parte, nuestro Alto Foro ha resaltado que, para poder
[SEGMENT 21]
acreditar la justa causa, el abogado o la parte tendrá que ofrecer
explicaciones concretas y particulares debidamente evidenciadas en
el escrito pertinente. Alegaciones superfluas, vaguedades o
planteamientos estereotipados, no cumplen con las exigencias
reconocidas en el ordenamiento. [CITATION].
III.
En el presente caso, la parte apelante aduce que el foro a quo
debió dejar sin efecto la anotación de rebeldía, dado a que existían
causas justificadas por las que no presentó su contestación a la
demanda en el término concedido.
Un examen del expediente que nos ocupa mueve nuestro
criterio a resolver que el tribunal primario no incidió al negarse a
levantar la anotación de rebeldía. Según reseñamos, la parte que
interese que se levante una anotación de rebeldía, o inclusive que se
deje sin efecto una sentencia en rebeldía, deberá demostrar justa
causa para su incomparecencia y una buena defensa, no pudiendo
descansar en escuetas alegaciones o someros argumentos al
respecto.
Tal cual relatamos anteriormente, el apelante nunca presentó
su contestación a la demanda, aún con el beneficio de una prórroga
concedida por el foro recurrido. Así, pues, el tribunal le anotó la
rebeldía a solicitud de la parte apelada, luego de que transcurriera
aproximadamente un mes de haber expirado el término otorgado.
No fue hasta que el foro primario dictó sentencia en rebeldía a favor
de la parte apelada que el apelante compareció en solicitud de
reconsideración. En su escrito, únicamente manifestó que su
====== KLCE202301086
representante legal tuvo un imprevisto médico por el cual se vio
impedido de presentar la contestación a la demanda. Sin embargo,
no detalló cual fue la situación médica que tuvo su abogado, ni
incluyó ninguna documentación al respecto. Peor aún, no esbozó en
su escrito ninguna buena defensa en los méritos de la reclamación
de epígrafe, conforme a lo requerido por nuestro ordenamiento
procesal civil.
IV
Por los fundamentos que anteceden, se confirma la Sentencia
en Rebeldía apelada.
Lo acordó el Tribunal, y lo certifica la Secretaria del Tribunal.
La Jueza Grana Martínez disiente mediante voto escrito.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones KLCE202301086
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL VII
CONSEJO DE Certiorari
TITULARES DEL acogido como
CONDOMINIO PLAYA Apelación
AZUL II procedente del
REPRESENTADO POR Tribunal de Primera
SU JUNTA DE Instancia, Sala de
DIRECTORES Carolina
KLCE202301086
Apelado Sobre:
Cobro de Dinero;
v. Incumplimiento de
Contrato
GONZÁLEZ EQUIPOS,
INC. Caso Núm.:
CA2023CV00878
Apelante
Panel integrado por su presidenta, la Juez Domínguez Irizarry, la
Juez Grana Martínez y el Juez Pérez Ocasio
VOTO DISIDENTE DE LA JUEZA GRANA MARTÍNEZ
Los principios básicos de acceso a la justicia, el debido
proceso de ley y la política pública en pro de que los casos se ventilen
en sus méritos, me obligan a disentir de la opinión mayoritaria. Los
tribunales somos el foro que los ciudadanos tienen disponibles para
buscar remedios a sus conflictos legales. Nuestra función principal
es garantizarle un proceso justo e imparcial. La solución justa a sus
conflictos amerita el descubrimiento de la verdad. La rebeldía no
puede ser usada para darle la ventaja a los demandantes de tener
una sentencia a su favor, sin una vista en sus méritos. [CITATION]
A diferencia de la opinión mayoritaria entiendo que existe
justa causa para dejar sin efecto la anotación de rebeldía. La
apelante demostró la existencia de negligencia excusable para la
dilación en contestar la demanda. González Equipos Inc. solicitó
reconsideración a la anotación de rebeldía y a la sentencia en
rebeldía oportunamente. La apelante atribuyó la tardanza en
contestar la demanda a que su abogada tuvo un problema de salud
imprevisto y a que, por error e inadvertencia, quedó pendiente de
presentación la contestación a la demanda. KLCE202301086
La moción de reconsideración estuvo acompañada de la
contestación de la demanda en la que la apelante evidenció que
tiene una buena defensa en sus méritos. La apelante negó la
existencia de la deuda, de enriquecimiento ilegal, del recibo y
retención ilegal de pagos duplicados. Igualmente negó la
procedencia de devolución de cantidad alguna. Véase, alegaciones
4-6, 8 y 10 de la Contestación de la Demanda. También alegó que
realizó gestiones con la apelada para aclarar la alegada duplicidad
de pagos. Como defensa afirmativa alegó que la demandante está
impedida por sus actos propios, porque el contrato se realizó en su
totalidad conforme a lo pactado. Según la apelante, tiene evidencia
de las certificaciones preparadas con el propósito de efectuar pagos,
que acreditan que realizó el trabajo. Véase, págs. 24 y 25 del
apéndice del recurso.
Por otro lado, no entiendo que la demandante pueda sufrir
algún perjuicio porque se deje sin efecto la anotación de rebeldía. A
nuestro juicio es pertinente señalar que el contrato que originó la
demanda ocurrió el 31 de agosto de 2012 y se enmendó el 28 de
febrero de 2013. Aunque la apelada no alegó cuándo hizo los
supuestos pagos duplicados, no es hasta el 22 de marzo de 2023
que presentó la demanda.
A mi entender, resulta obvio concluir que los fundamentos
para levantar la anotación de rebeldía son los mismos por los que
procede dejar sin efecto la sentencia en rebeldía. La apelante
demostró: (1) negligencia excusable para su dilación en contestar la
demanda, (2) tener una buena defensa en sus méritos, (3) que el
levantamiento de la rebeldía no causaría perjuicio a la apelada y (4)
solicitó reconsideración oportunamente a la sentencia en rebeldía.
El foro primario ejerció irrazonablemente su discreción. Los
hechos materiales alegados en la demanda son insuficientes para
establecer una causa de acción que justifique el remedio que la KLCE202301086
apelada solicita. Sus alegaciones son generalizadas y concluyentes.
La apelada solo alegó que hizo unos pagos duplicados a la apelante
por $30,207.48 y que se ha negado a reembolsarlos. No obstante,
de la demanda ni siquiera surge cuándo hizo esos pagos y por
concepto de qué. La apelada tampoco acompañó con la demanda
evidencia que acredite la existencia de la deuda y que su cuantía es
líquida y exigible. La única evidencia que acompaña son las cartas
que envió a la apelante el 10 de enero de 2022 y el 22 de marzo de
2022, que nada aportan a corroborar la existencia de la deuda y la
cuantía.
Ante ese escenario, el foro primario debió ejercer su discreción
para solicitarle a la apelada la comprobación de sus aseveraciones
y realizar las vistas necesarias para confirmar la existencia de una
causa de acción.
Por lo antes expuesto, disiento de la opinión mayoritaria,
debido a que revocaría la anotación y la sentencia en rebeldía.
En San Juan, Puerto Rico, a 12 de enero de 2024.
Grace M. Grana Martínez
Jueza del Tribunal de Apelaciones ```plaintext
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
Apelación procedente
RADAMÉS JORDÁN ORTIZ del Tribunal de
Primera Instancia,
Demandante Apelado Sala Superior de
Fajardo
v. [CITATION]
Caso Núm.:
CONSOLIDADO [CITATION]
CONSEJO DE TITULARES (Salón 307)
DEL CONDOMINIO DOS [CITATION]
MARINAS I Y OTROS
Sobre:
Demandados Apelantes Daños y Perjuicios
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Candelaria Rosa, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de diciembre de 2023.
Consolidamos dos recursos de apelación presentados
separadamente instados por el Consejo de Titulares del Condominio
[SEGMENT 22]
Dos Marinas I (Consejo de Titulares) e In-Servicio, LLC (In-Servicio).
Ambas partes solicitan la revocación de la Sentencia del Tribunal de
Primera Instancia, Sala Superior de Fajardo, emitida el 23 de febrero de
2023. Mediante el dictamen recurrido, se les ordenó a los apelantes
pagar doscientos setentaicinco mil dólares ($275,000.00) por daños y
perjuicios y veinticinco mil dólares ($25,000.00) por las costas, los
gastos y los honorarios de abogados. Por las razones que habremos de
expresar, se revoca la Sentencia apelada.
En síntesis, el caso de epígrafe trata del presunto destrozo y
saqueo del apartamento del señor Radamés Jordán Ortiz (señor Jordán
Ortiz o recurrido) luego de este haber entregado las llaves de su
Número Identificador
SEN2023 _______________ KLAN202300971 consolidado con KLAN202301004
vivienda a la corporación In-Servicio LLC para que se hicieran
reparaciones a la tubería central del Condominio. En función de esto, el
señor Jordán Ortiz presentó una demanda en contra del Consejo de
Titulares e In-Servicio por daños y perjuicios. Durante el
diligenciamiento de los emplazamientos, el señor Jordán Ortiz
confirmó haber emplazado personalmente a In-Servicio, pero no al
Consejo de Titulares, al supuestamente no localizar al presidente del
organismo. Según la declaración jurada del señor José A. Hernández
Gajate (señor Hernández Gajate o emplazador), este se presentó al
Condominio y fue atendido por la administradora del Consejo de
Titulares, quien le dijo que ella no estaba autorizada a recibir
documentación legal. Ante esto, el emplazador suministró su número
telefónico y esperó por la llamada del referido presidente, cual nunca
llegó. No se efectuaron otros actos para localizar al presidente.
Al supuestamente no poder entregar el emplazamiento
personalmente, el señor Jordán Ortiz solicitó al foro primario que se
emplazara por edicto al Consejo de Titulares, lo cual fue declarado ha
lugar. Tiempo después, sin el Consejo de Titulares o In-Servicio
presentar respuesta a la demanda, el señor Jordán Ortiz solicitó la
anotación de rebeldía de los codemandados, la cual fue ordenada por el
foro primario. Sin notificar al Consejo de Titulares o a In-Servicio, el
Tribunal de Primera Instancia celebró una vista en rebeldía con el señor
Jordán Ortiz. Subsiguientemente, el foro primario dictó Sentencia,
notificada a los codemandados mediante edicto.
Oportunamente, In-Servicio presentó una Moción urgente de
reconsideración y/o solicitando relevo de sentencia bajo la Regla
49.2(a)(f) “Remedios contra la sentencia u órdenes y otros asuntos”, KLAN202300971 consolidado con KLAN202301004
alegando que la aseguradora Multinational Insurance Company no le
advirtió que su póliza no cubría los hechos en controversia. Igualmente,
el Consejo de Titulares presentó una Moción de reconsideración y/o de
relevo de sentencia, argumentando que la diligencia del emplazador fue
insuficiente para ameritar un emplazamiento por edicto, más que el
costo de los daños adjudicados en contra del Consejo de Titulares es
excesivamente inflado y no tiene fundamento probatorio para validarlo.
Luego de evaluar las referidas solicitudes, la oposición del señor Jordán
Ortiz y otros trámites procesales, el foro primario dictó sin lugar las
peticiones de los codemandados.
Por todo lo anterior, el Consejo de Titulares recurrió ante este
Tribunal, alegando que el foro primario erró (1) al permitir el
emplazamiento por edicto basado en una declaración jurada
estereotipada, (2) al no reconsiderar o relevar los efectos de la
Sentencia, (3) al condenarlo a pagar una suma excesiva de daños y
perjuicios, y (4) al imponer costas, gastos y honorarios de abogado por
temeridad. De manera similar, In-Servicio recurrió ante este Tribunal,
argumentando que el foro primario erró al no dejar sin efecto la
Sentencia y al imponer costas, gastos y honorarios de abogado por
temeridad.
Vale recordar que nuestro ordenamiento establece un mecanismo
procesal para solicitar el relevo de los efectos de una sentencia, a fin de
evitar que se vean frustrados los fines de justicia. Véase Regla 49.2 de
Procedimiento Civil de 2009 (32 LPRA Ap. V); [CITATION] Específicamente, dispone que se
podrá relevar a una parte o a su representante legal de una sentencia,
entre otras causas, por error, inadvertencia, sorpresa o negligencia ```plaintext
KLAN202300971 consolidado con KLAN202301004
excusable; también, por nulidad de la sentencia. Regla 49.2 de
Procedimiento Civil de 2009, supra. Sin embargo, para obtener el
relevo es necesario que el promovente de la solicitud haya sido diligente
en la tramitación del caso. [CITATION]
Por otra parte, los tribunales están obligados a desalentar la
práctica de falta de diligencia y de incumplimiento con sus órdenes
mediante su efectiva, pronta y oportuna intervención. [CITATION] (citando a
[CITATION]). La
determinación de desestimar una demanda o eliminar las alegaciones
de una parte se debe ejercer juiciosa y apropiada. [CITATION] (citando a
[CITATION]). Véase,
también, [CITATION] Ello, debido a la norma judicial de que los casos se ventilen
en sus méritos. [CITATION] (citando a [CITATION], pág. 701; [CITATION])
Cónsono con lo anterior, un tribunal solo tendrá jurisdicción
sobre una persona si esta fue debidamente emplazada, de conformidad
con el derecho constitucional del debido proceso de ley. [CITATION] (citando a [CITATION]) KLAN202300971 consolidado con KLAN202301004 5
De esta manera, el demandado podrá comparecer ante el foro primario,
ejercer su derecho a ser oído y defenderse. [CITATION], supra, pág. 644 (citando a [CITATION]). De no ser emplazado conforme a ley, el
foro primario deberá declarar su falta de jurisdicción y desestimar la
reclamación sin entrar en sus méritos. [CITATION] (citando a [CITATION]). En otro sentido, si un tribunal
decreta una sentencia sin el demandado haber sido correctamente
emplazado conforme a ley, tal dictamen será nulo. [CITATION] (citando a [CITATION]).
Ahora bien, cabe señalar que la Regla 4.3(c) de Procedimiento
Civil dispone en lo pertinente que “[e]l emplazamiento será
diligenciado en el término de ciento veinte (120) días a partir de la
presentación de la demanda”. Regla 4.3 de Procedimiento Civil de
2009, supra. De tratar de emplazarse una corporación o compañía, el
emplazador debe entregar copia del emplazamiento y de la demanda a
un oficial, gerente administrativo o cualquier otro agente autorizado
para recibir nombramientos. Regla 4.4 de Procedimiento Civil de 2009,
supra. De transcurrir el término de ciento veinte (120) días sin que se
hubiese diligenciado el emplazamiento, el Tribunal deberá dictar
sentencia decretando la desestimación y archivo sin perjuicio. Íd.;
Véase, también, [CITATION], supra. No
obstante, cuando el demandante intenta infructuosamente emplazar
personalmente al demandado dentro de los ciento veinte (120) días, el
foro primario puede autorizar que se emplace por edicto al demandado, KLAN202300971 consolidado con KLAN202301004
igualmente dentro de los ciento veinte (120) días de haberse emitido la
orden. Véase Reglas 4.3 y 4.6 de Procedimiento Civil de 2009, supra.
Para que proceda dicho emplazamiento, el demandante debe acreditar
mediante declaración jurada las diligencias realizadas para localizar y
emplazar al demandando. Regla 4.6 de Procedimiento Civil de 2009,
supra.
Conviene destacar que la declaración jurada referida en la Regla
4.6 de Procedimiento Civil debe expresar hechos específicos y no meras
conclusiones o generalidades, es decir, se debe incluir las personas con
quienes se investigó y su dirección. [CITATION] (citando a [CITATION]). Como buena
práctica de diligenciamiento, el emplazador debe tratar de inquirir de
las autoridades de la comunidad, cuales incluyen la policía, el alcalde y
el administrador de correos. [CITATION] (citando a [CITATION]). Es imperativo que el foro primario tenga
en cuenta “todos los recursos razonablemente accesibles al demandante
[SEGMENT 23]
para hallar al demandado, y si se ha agotado toda posibilidad razonable
disponible para poder localizarlo”. Íd., pág. 483 (citando a [CITATION]).
Presumiendo que se haya diligenciado el emplazamiento por
edicto, la Regla 10.1 requiere que el demandado presente su
contestación a la demanda dentro de los treinta (30) días de haberse
publicado el edicto. Regla 10.1 de Procedimiento Civil de 2009, supra.
De no disponer de una contestación dentro del referido término, se le
podrá anotar la rebeldía del demandado, siempre y cuando se pruebe
mediante una declaración jurada o de otro modo. Regla 45.1 de KLAN202300971 consolidado con KLAN202301004
Procedimiento Civil de 2009, supra. Consecuentemente, la anotación
de rebeldía tendrá el efecto de que se den por admitidas las
aseveraciones de las alegaciones afirmativas. Íd. No obstante, el foro
primario podrá dejar sin efecto una anotación de rebeldía por justa
causa, es decir, si se presenta evidencia de razón justificada por la
dilación, o que existe una buena defensa en sus méritos y el grado de
perjuicio contra la otra parte con relación al proceso es razonablemente
mínimo. Regla 45.3 de Procedimiento Civil de 2009, supra. Véase
[CITATION].
De conformidad con los hechos de este caso, según surgen del
expediente, la declaración jurada del emplazador fue insuficiente para
justificar el emplazamiento por edicto del Consejo de Titulares. Según
aparece en la declaración jurada, el señor Hernández Gajate se personó
en el Condominio una sola vez, para solo dejar su número de teléfono
y esperar que el demandado lo contactara o buscara a él, desistiendo de
cualquier otro diligenciamiento o gestión afirmativa para localizar al
presidente del Consejo de Titulares. No inquirió con alguna de las
múltiples autoridades del municipio o el mismo Consejo de Titulares,
tampoco se personó en el Condominio más de una vez, ni intentó
localizar al presidente en su residencia principal.
Es evidente, por tanto, que la declaración jurada del emplazador,
mas bien demostró la deficiencia del diligenciamiento, por lo que no
ameritaba un emplazamiento por edicto. En consecuencia, por el
Consejo de Titulares no haber sido emplazado según es su derecho,
la Sentencia dictada por el Tribunal de Primera Instancia es inválida,
ergo nula, con la consecuencia de no tener efecto jurídico alguno con [CITATION] consolidado con [CITATION]
respecto a los afectados por la misma que surgen de los casos
[CITATION] y [CITATION].
Por los fundamentos expuestos, revocamos la Sentencia apelada.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
GLADYS GARCÍA Certiorari
CARRASQUILLO procedente del
Tribunal de Primera
Instancia, Sala
Demandante Recurrida [CITATION] Superior de Fajardo
v. Caso Núm.:
[CITATION]
(Salón 307)
JUAN CRUZ RAMOS Y
OTROS Sobre:
Acción de Deslinde
Demandados Peticionarios y Otros
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Candelaria Rosa, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 19 de diciembre de 2023.
Comparece la señora Carmen Arenas Figueroa, el señor Juan
Cruz Ramos, la Sociedad Legal de Gananciales compuesta por ambos,
y el señor Vicente Martínez Ramos (conjuntamente “recurrentes”)
mediante certiorari para solicitar la revocación de la Orden del
Tribunal de Primera Instancia, Sala Superior de Fajardo, emitida el 8
de septiembre de 2023. Mediante dicho dictamen, se anotó la rebeldía
de los recurrentes por estos no responder a la demanda instada en su
contra dentro del término dispuesto por ley. Por los fundamentos que
expresamos a continuación, expedimos el auto solicitado y revocamos
la resolución recurrida.
En síntesis, el caso de epígrafe trata de una demanda por
movimientos de terreno que variaron la colindancia entre los lotes de la
Número Identificador
[CITATION] _______________ KLCE202301198
señora Gladys García Carrasquillo (señora García Carrasquillo o
recurrida) y los recurrentes. Luego de varias diligencias para localizar
a los recurrentes, la señora García Carrasquillo solicitó al foro primario
la autorización para emplazar por edicto. Después de la autorización
emitida el 24 de abril de 2023, la señora García Carrasquillo emplazó
por edicto al señor Martínez Ramos el 5 de mayo de 2023. Meses
después, en el 27 de junio de 2023, el foro primario autorizó el
emplazamiento por edicto de la señora Arenas Figueroa, señor Cruz
Ramos y la Sociedad Legal de Gananciales compuesta por ambos, la
cual fue cumplida el 3 de agosto de 2023.
Durante el transcurso de estos trámites, los recurrentes
presentaron una moción de prórroga para buscar representación legal y
otra para anunciar la adquisición de la referida representación, ambas
veces declarando que no se sometían a la jurisdicción del foro primario.
Posterior a una solicitud de los recurrentes de que se acreditara su
emplazamiento —igualmente con la explicación que no se sometían a
la jurisdicción del tribunal— la recurrida probó el emplazamiento por
edicto del señor Martínez Ramos mediante (1) la declaración jurada de
la representante del periódico El Nuevo Día, (2) un ejemplar del edicto
publicado, y (3) una foto del acuse de recibo de la copia del
emplazamiento y de la demanda. Sin embargo, para el tiempo de la
referida solicitud, el Tribunal de Primera Instancia no había autorizado
el emplazamiento por edicto de los otros recurrentes.
Sin presentarse respuesta a la demanda dentro de los treinta (30)
días subsiguientes a los respectivos emplazamientos, la señora García
Carrasquillo presentó una solicitud de anotación de rebeldía en contra
de los recurrentes. En la petición, la señora García Carrasquillo incluyó KLCE202301198
la mencionada acreditación del emplazamiento del señor Martínez
Ramos, más prueba similar del emplazamiento por edicto de los otros
recurrentes. Acto seguido, después de los recurrentes haber presentado
una oposición a la mencionada solicitud, el foro primario ordenó la
anotación de rebeldía. Ese mismo día, los recurrentes presentaron su
Contestación a demanda y reconvención, a la cual la señora García
Carrasquillo respondió posteriormente.
Oportunamente, los recurrentes solicitaron una reconsideración
a la anotación de rebeldía que Tribunal de Primera Instancia declaró sin
lugar. Por causa de esta última determinación, los recurrentes acuden
ante este Tribunal de Apelaciones, argumentando que el foro primario
erró al (1) anotar la rebeldía de los recurrentes en violación a la Regla
45.1 de Procedimiento Civil y la doctrina del trato justo (fair play) y (2)
no ejercer la Regla 45.3 de Procedimiento Civil.
Vale recordar que el auto de certiorari es el vehículo procesal,
discrecional y extraordinario mediante el cual un tribunal de mayor
jerarquía puede rectificar errores jurídicos. [CITATION]. Conforme a la referida Regla
52.1, los criterios que permiten la expedición de un certiorari consisten
en revisar una orden de carácter dispositivo o resolución según las
Reglas 56 y 57 de Procedimiento Civil. [CITATION], supra. Por lo tanto, la función del Tribunal Apelativo frente a la
revisión de controversias a través del certiorari requiere valorar la
actuación del foro primario y predicar su intervención en si la misma
constituyó un abuso de discreción; en ausencia de evidencia suficiente
de tal abuso o de acción prejuiciada, error o parcialidad, no corresponde KLCE202301198
intervenir con las determinaciones del Tribunal de Primera Instancia.
[CITATION] (citando a [CITATION]).
Por otra parte, los tribunales están obligados a desalentar la
práctica de falta de diligencia y de incumplimiento con sus órdenes
mediante su efectiva, pronta y oportuna intervención. [CITATION] (citando a
[CITATION]). La determinación de desestimar una demanda o eliminar las alegaciones
[SEGMENT 24]
de una parte se debe ejercer juiciosa y apropiada. [CITATION] (citando a
[CITATION]).
Véase, también, [CITATION]. Ello, debido a la norma judicial de que los casos
se ventilen en sus méritos. [CITATION] (citando a [CITATION]).
Ahora bien, cabe señalar que la Regla 4.3(c) de Procedimiento
Civil dispone en lo pertinente que “[e]l emplazamiento será
diligenciado en el término de ciento veinte (120) días a partir de la
presentación de la demanda”. Regla 4.3 de Procedimiento Civil de
2009, supra. De transcurrir el término de ciento veinte (120) días sin
que se hubiese diligenciado el emplazamiento, el Tribunal deberá dictar
sentencia decretando la desestimación y archivo sin perjuicio. Íd.; KLCE202301198
Véase, también, [CITATION]
(2018). No obstante, cuando el demandante intenta infructuosamente
emplazar personalmente al demandado dentro de los ciento veinte (120)
días, el foro primario puede autorizar que se emplace por edicto al
demandado, igualmente dentro de los ciento veinte (120) días de
haberse emitido la orden. Véase [CITATION], supra. Para que proceda dicho emplazamiento, el
demandante debe acreditar mediante declaración jurada las diligencias
realizadas para localizar y emplazar al demandando. [CITATION], supra.
Conviene destacar que la [CITATION]
requiere la acreditación de los emplazamientos por edictos mediante:
(1) la declaración jurada del administrador o agente autorizado del
periódico, (2) un ejemplar del edicto publicado, y (3) un escrito del
abogado que certifique que se depositó en el correo una copia del
emplazamiento y de la demanda. [CITATION], supra. No obstante, la misma [CITATION] aclara que la omisión de
presentar prueba del diligenciamiento no surtirá efectos en cuanto a la
validez del emplazamiento por edicto. Íd. Si la parte demandada admite
que fue emplazada, renuncia al diligenciamiento del emplazamiento o
comparece ante el foro primario, no será necesario probar el
diligenciamiento. Íd.
Presumiendo que se haya diligenciado el emplazamiento por
edicto, la [CITATION] requiere que el demandado presente su
contestación a la demanda dentro de los treinta (30) días de haberse
publicado el edicto. [CITATION], supra.
De no disponer de una contestación dentro del referido término, se le KLCE202301198
podrá anotar la rebeldía del demandado, siempre y cuando se pruebe
mediante una declaración jurada o de otro modo. Regla 45.1 de
Procedimiento Civil de 2009, supra. Consecuentemente, la anotación
de rebeldía tendrá el efecto de que se den por admitidas las
aseveraciones de las alegaciones afirmativas. Íd. No obstante, el foro
primario podrá dejar sin efecto una anotación de rebeldía por justa
causa, es decir, si se presenta evidencia de razón justificada por la
dilación, o que existe una buena defensa en sus méritos y el grado de
perjuicio contra la otra parte con relación al proceso es razonablemente
mínimo. Regla 45.3 de Procedimiento Civil de 2009, supra. Véase
[CITATION].
De conformidad con los hechos, los recurrentes respondieron a
la demanda instada contra ellos. Aunque no entregaron alegaciones
responsivas en el término dispuesto por ley, estos contestaron y
presentaron su oposición a la anotación de rebeldía un día después de
haberse solicitado tal anotación, evidenciando (1) su sumisión a la
jurisdicción del foro primario y (2) su diligencia en responder cuando
advirtieron que recibieron una orden o notificación. Lo cierto es que la
acreditación oportuna les hubiera avisado de que se publicó un edicto y
que estos deberían verificar el ejemplar que lo contiene. En ese sentido,
una acreditación tardía sustrae de los recurrentes la oportunidad de
conocer las alegaciones instadas contra ellos, la manera que deberían
defenderse y que el caso se ventile en sus méritos. Por lo tanto, las
alegaciones responsivas no debieron descartarse, en particular cuando
ambas partes han comparecido ya ante el foro primario. KLCE202301198
Por los fundamentos expuestos, expedimos el auto solicitado y
revocamos la Resolución recurrida. Se devuelve el caso al Tribunal de
Primera Instancia para la continuación de los procesos.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones [Yours may actually include context here—where the court is detailing background information, stating applicable law or precedent, and discussing the application of the facts in the present case.]
...
In previous cases such as [CITATION], and more recently in [CITATION], the court has consistently ruled that such evidence is inadmissible. However, in the landmark decision [CITATION], the court outlined specific exceptions to this general rule.
...
The appellant referenced [CITATION] when arguing their point, while the appellee's counsel relied heavily on [CITATION]. The trial court's discretion and the established precedents in cases like [CITATION] provided a framework for the current decision.
[Yours may actually include specific determinations, formal logic, and the court's conclusion in applying the rules to this particular case.]
...
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL IV
EMMANUEL SANTIAGO Apelación
RODRÍGUEZ H/N/C ESR procedente del
PLUMBING SERVICES Tribunal de
Primera Instancia,
Apelado Sala de Caguas
v. KLAN202400140 Caso Número:
CG2020CV02783
RAYMOND RIVERA
GUINDIN, CSP Sobre:
Cobro de dinero-
Apelante Ordinario
Panel integrado por su presidenta, la Jueza Cintrón Cintrón, la
Jueza Rivera Marchand y el Juez Rodríguez Flores
Rivera Marchand, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de mayo de 2024.
Comparece ante nos, la Corporación Raymond Rivera
Guindin, CSP (Corporación RRG o apelante) y solicita que
revoquemos la [CITATION] en rebeldía que emitió y notificó el
Tribunal de Primera Instancia, Sala de Caguas (TPI o foro primario)
el 30 de octubre de 2023. Mediante el referido dictamen, el TPI
declaró Ha Lugar la Demanda [CITATION] sobre cobro de dinero que el Sr.
Emmanuel Santiago Rodríguez (Sr. Santiago Rodríguez o apelado)
instó en su contra y condenó a la Corporación RRG a pagar
$37,868.01 a favor del Sr. Santiago Rodríguez, más honorarios,
gastos y costas.
Por los fundamentos que expondremos, revocamos la
Sentencia apelada. Para una mejor comprensión del curso decisorio
de esta Curia, procedemos a resaltar el tracto procesal y la
controversia ante nos.
I.
[CITATION]
Número Identificador:
SEN2024________ KLAN202400140
En su reclamación, el Sr. Santiago Rodríguez alegó que, la
Corporación RRG lo contrató para rendir servicios profesionales de
plomería en los proyectos Mirador Escorial en Carolina y
Miramelinda en Río Grande. Adujo haber completado los servicios
contratados, valorados en $37,868.01, sin que la Corporación RRG
le pague por los servicios prestados. Ello, a pesar de los múltiples
intentos de cobro. A raíz de lo anterior expuso que, la cuantía
reclamada está vencida y es líquida y exigible, toda vez que, el Sr.
Raymond Rivera Guindin (Sr. Rivera Guindin), presidente de la
Corporación RRG, presuntamente reconoció la deuda y se
comprometió a satisfacer el pago. Sobre tales bases, solicitó al TPI
que condenara a la Corporación RRG al pago de $37,868.01, más
intereses, costas y $10,000.00 en honorarios de abogado.
En reacción, la Corporación RRG presentó su alegación
responsiva, sin someterse a la jurisdicción del TPI.3 En síntesis alegó
que, entre la corporación y el Sr. Santiago Rodríguez no hubo un
contrato, más bien, que el Sr. Santiago Rodríguez se comprometió a
realizar unas labores de plomería, las cuales abandonó sin finalizar.
Añadió que, tales circunstancias la obligaron a contratar los
servicios de plomería de un tercero. Corolario de lo anterior, negó la
deuda que reclamó el Sr. Santiago Rodríguez, la cual señaló como
excesiva.
Así las cosas, el foro primario calendarizó una Conferencia
Inicial.4 Ante la incomparecencia de la Corporación RRG, el TPI
transfirió la vista para el 5 de agosto de 20215 y, separadamente,
emitió una Orden Para Mostrar Causa con el propósito de que la
parte demandada exprese las razones para su incomparecencia.6 En
cumplimiento con lo requerido, la representante legal de la
3 [CITATION] KLAN202400140
Corporación RRG compareció y atribuyó su incomparecencia a una
cita médica y a un viaje fuera de Puerto Rico.[CITATION]
Celebrada la Conferencia Inicial, con la participación de las
representaciones legales de ambas partes,[CITATION] el TPI señaló una Vista
de Seguimiento para el 12 de octubre de 2021, ante la posibilidad de
un acuerdo transaccional. Llegado el día, la representante legal de
la parte demandada no compareció.[CITATION] En su consecuencia, el TPI
transfirió la vista para el 30 de noviembre de 2021.
Ante la incomparecencia de la Lic. Lourdes M. Torres Esteves
a la vista re-señalada para el 30 de noviembre de 2021, el foro
primario emitió una Orden de Mostrar Causa[CITATION] en la cual le impuso
una sanción de $150.00 a favor de la parte demandante y la
apercibió de que otro incumplimiento con órdenes o señalamientos
del TPI conllevará la anotación de la rebeldía a la parte demandada,
más otras potenciales sanciones. A esos efectos, señaló la
Conferencia con Antelación a Juicio para el 21 de enero de 2022.
Se desprende del volante de notificación correspondiente que,
el foro primario ordenó notificar la referida orden de mostración de
causa a la dirección postal del Sr. Rivera Guindin (PO Box 5863,
Caguas PR 00726) y a los respectivos correos electrónicos de las
representaciones legales de ambas partes.[CITATION] Asimismo, surge de la
Minuta de dicha vista que el foro primario ordenó a las partes
presentar el Informe para el Manejo del Caso en o antes del 14 de
enero de 2022.
A la vista del 21 de enero de 2022, la Lic. Torres Esteves no
compareció, tampoco la parte demandada.[CITATION] En reacción, el TPI
sancionó la incomparecencia de la parte demandada mediante la
[CITATION] KLAN202400140
anotación de la rebeldía a la Corporación RRG, aumentó a $300.00
la sanción económica previamente impuesta y señaló la vista en
rebeldía para el 21 de marzo de 2022.
Precisa resaltar que, la referida Minuta no fue notificada en
autos.
Con anterioridad al próximo señalamiento, el 7 de febrero de
2022, la parte demandada compareció ante el foro primario
mediante una Moción para Cumplir Orden.[CITATION] Allí, la Lic. Torres
Esteves, en representación de la Corporación RRG, indicó que
advino en conocimiento -a través de su representado- de la Orden
de Mostrar Causa fechada el 30 de noviembre de 2021, la cual
aseguró que no le fue notificada por correo electrónico. Expuso,
además, que envió a la abogada de la parte demandante su proyecto
de Informe para el manejo de caso desde el 10 de junio de 2021,
junto a una invitación a un diálogo conciliador. Añadió que, ese
mismo día remitirá a dicha abogada el pago de la sanción que fue
impuesta a favor de ésta.
Se desprende del expediente que, el TPI emitió una Orden,[CITATION]
notificada el 18 de marzo de 2022, mediante la cual transfirió la
vista en rebeldía para el 12 de mayo de 2022 debido a que, el
señalamiento previo no correspondía a un día laborable en el Poder
Judicial.
Inconforme, la Corporación RRG presentó otra moción,[CITATION]
mediante la cual informó que, tras una búsqueda en SUMAC, se
percató de que varias órdenes que figuraban en el expediente digital
presuntamente no le fueron notificadas debidamente, entre otras, la
orden mediante la cual el foro primario anotó la rebeldía a su
representado y aumentó la sanción previamente impuesta. Solicitó
al foro primario el levantamiento de la rebeldía fundamentado en la
[CITATION] Apéndice, págs. 40-41.
[CITATION] Apéndice, págs. 42-43.
[CITATION] Apéndice, págs. 44-47. KLAN202400140
presunta falta de notificación, en que la eliminación de las
alegaciones de su cliente es la sanción más severa y en que, a su
entender, el levantamiento no retrasa la celebración del juicio ni
resulta oneroso al Sr. Santiago Rodríguez.
A pesar de lo antes, el 12 de mayo de 2022, el TPI procedió a
celebrar la Vista en Rebeldía.[CITATION] Cabe señalar que, el 17 de marzo de
2023, transcurridos diez meses de la celebración de la vista en
rebeldía, el TPI emitió una Orden[CITATION] a los efectos de disponer que el
Sr. Santiago Rodríguez expusiera su posición en torno a solicitud de
levantar la anotación de rebeldía que la parte demandada solicitó el
[SEGMENT 2]
23 de marzo de 2022, y reiteró el 19 de abril de 2023.[CITATION]
Al cabo de más de un año de lo anterior y sin que la parte
demandante acreditara su posición en torno al relevo de la
anotación de rebeldía que solicitó la Corporación RRG, el TPI notificó
la Sentencia apelada en rebeldía mediante la cual, declaró ha lugar
la demanda y ordenó a la Corporación RRG pagar a favor del Sr.
Santiago Rodríguez $37,868.01, más $1,000.00 en honorarios por
temeridad, los gastos y las costas relacionadas con el litigio.
En desacuerdo, la Corporación RRG presentó una Moción de
Reconsideración.[CITATION] En ella alegó que, a partir de la celebración de la
vista sobre conferencia inicial, no recibió notificaciones del TPI a
través de correo electrónico, ni por correo regular, lo cual
constituyen las razones para sus incomparecencias. Hizo constar
que, la parte demandante no se expresó en torno a su escrito
solicitando que se levantara la anotación de rebeldía.
[CITATION] La minuta fue enmendada a los efectos de corregir el
nombre del juez y el número del salón.
[CITATION] KLAN202400140
Evaluado lo anterior, el TPI denegó el petitorio de
reconsideración.20 Inconforme, la Corporación RRG acude ante esta
Curia y señala en su recurso la comisión de cuatro errores, a saber:
Erró el Tribunal de Primera Instancia al dictar Sentencia en
rebeldía en contra de la parte apelante, a pesar de que
procedía el relevo de la anotación de rebeldía en estricto
derecho, constituyendo esta actuación un abuso de
discreción, error manifiesto de derecho y una actuación
contraria al debido proceso de ley.
Erró el Tribunal de Primera Instancia al dictar Sentencia en
Rebeldía en contra de la parte apelante, a pesar de que la
propia demanda no surge una reclamación que justifique la
concesión de un remedio al faltar alegaciones de
temporalidad.
Erró el Tribunal de Primera Instancia al dictar Sentencia en
Rebeldía en contra de la parte apelante, y ordenando el pago
de la suma de $37,868.01, a pesar de que el propio apelado
admitió que no completó la obra que alega por la que fue
contratado. Asimismo, el foro primario erró al no especificar
esta admisión en sus determinaciones de hecho.
Erró el Tribunal de Primera Instancia al imponer la suma de
$1,000.00 en concepto de honorarios de abogados, más los
gastos y costas, a pesar de que la parte apelante no fue
temeraria y procedía el levantamiento de la rebeldía.
Examinada la apelación, apercibimos a la parte apelada del
término permitido, conforme autoriza la Regla 22 del Reglamento del
Tribunal de Apelaciones para presentar su oposición. Ha
transcurrido mayor término sin que se haya acreditado la oposición,
por lo que, según advertido, procedemos a resolver sin el beneficio
de su comparecencia.
II.
A. La eliminación de las alegaciones
La Regla 39.2 de Procedimiento Civil, 32 LPRA Ap. V, R. 39.2
faculta al tribunal a eliminar las alegaciones de una parte como
sanción ante su incumplimiento con las órdenes del tribunal.
[CITATION]
Sin embargo, debido a que esta sanción atenta en contra de la política pública de
20 Apéndice, pág. 25. KLAN202400140
que los casos se ventilen en sus méritos, este poder deberá ser
ejercido de forma juiciosa y apropiada. [CITATION]
Sobre el particular, la Regla 39.2 de Procedimiento Civil,
supra, dispone:
[…]
Cuando se trate de un primer incumplimiento, la severa
sanción de la desestimación de la demanda o la
eliminación de las alegaciones tan sólo procederá
después que el tribunal, en primer término, haya
apercibido al abogado o abogada de la parte de la
situación y se le haya concedido la oportunidad para
responder. Si el abogado o abogada de la parte no
responde a tal apercibimiento, el tribunal procederá a
imponer sanciones al abogado o la abogada de la parte
y se notificará directamente a la parte sobre la
situación. Luego de que la parte haya sido debidamente
informada o apercibida de la situación y de las
consecuencias que pueda tener el que ésta no sea
corregida, el tribunal podrá ordenar la desestimación
del pleito o la eliminación de las alegaciones. El tribunal
concederá a la parte un término de tiempo razonable
para corregir la situación, que en ningún caso será
menor de treinta (30) días, a menos que las
circunstancias del caso justifiquen que se reduzca el
término.
Es menester enfatizar que, la facultad que concede la Regla
39.2 de Procedimiento Civil, supra, debe ser ejercitada después de
un sereno y cuidadoso escrutinio, en casos en los cuales no hay
duda de la irresponsabilidad y contumacia de la parte contra quien
se toman las medidas drásticas. [CITATION] Además, no sin antes apercibir
a la representación legal de la parte correspondiente y de concederle
la oportunidad de responder. [CITATION] Ante la inacción de la parte en
respuesta al apercibimiento, el tribunal impondrá sanciones y
notificará sobre el asunto directamente a la parte, con el debido
apercibimiento de los efectos que su incumplimiento conlleva. [CITATION]
Cumplido dicho trámite, el tribunal estará en posición de imponer
la sanción que corresponda. [CITATION]
Recientemente, en [CITATION], el Tribunal Supremo resolvió que, la
eliminación de las alegaciones como sanción guarda relación con la KLAN202400140
anotación de rebeldía. Ello, en la medida en que, cuando a un
demandado se le eliminan todas sus alegaciones se allana al litigio
instado en su contra, tal cual ocurre cuando un demandado no
contesta la demanda. [CITATION]. Entiéndase que, la rebeldía es una
consecuencia lógica cuando la parte demandada carece de
alegaciones. [CITATION].
Sobre este asunto el Tribunal Supremo abundó que, antes de
anotar la rebeldía -como sanción- el tribunal tiene que evaluar si los
hechos materiales que surgen de la demanda están bien alegados,
si los mismos proceden como cuestión de derecho y si carecen de
alegaciones concluyentes. [CITATION]. Con el fin de poder dictar sentencia en
rebeldía, conforme a derecho, el tribunal puede exigir que la parte
demandante presente prueba sobre los elementos de la causa de
acción. [CITATION].
B. Notificación de órdenes
Como se sabe, y atinente al recurso de epígrafe, es preciso
señalar que, en cuanto a las notificaciones de órdenes, resoluciones
y sentencias cuando a una parte se le ha anotado la rebeldía, la
Regla 65.3(a) de Procedimiento Civil, 32 LPRA Ap. V, R. 65.3(a)
establece que, el Secretario o Secretaria debe notificar el archivo en
autos de copia del dictamen “a todas las partes que hayan
comparecido en el pleito”. La notificación debe realizarse de
conformidad con la Regla 67.1 de Procedimiento Civil, 32 LPRA Ap.
V, R. 67.1, la cual dispone: “[t]oda orden emitida por el tribunal y
todo escrito presentado por las partes será notificado a todas las
partes. La notificación se efectuará el mismo día en que se emita la
orden o se presente el escrito”. Sobre este tema, el Tribunal Supremo
de Puerto Rico ha expresado que, la notificación adecuada de una
orden a las partes “es parte integral de la actuación judicial y afecta
el estado procesal del caso”. [CITATION].
====== End of the Court Ruling ====== KLAN202400140
La notificación y el archivo en autos de una copia de la
notificación de un dictamen resulta ser una etapa crucial del
proceso adjudicativo. [CITATION]. Este
deber de notificación no constituye un mero requisito impuesto por
las Reglas de Procedimiento Civil, sino del debido proceso de ley. Íd.
Por eso, la correcta y oportuna notificación de las órdenes y
sentencias es un requisito sine qua non de un ordenado sistema
judicial. [CITATION].
Su omisión puede conllevar graves consecuencias, además de crear
demoras e impedimentos en el proceso judicial. Íd.
[SEGMENT 3]
Cabe puntualizar que, la notificación adecuada a las partes es
parte integral de una acción judicial y tiene que ser emitida por un
tribunal con jurisdicción para que el dictamen a notificar surta
efecto. [CITATION], supra. Es a partir de la
notificación que comienzan los términos establecidos. Íd. Por tanto,
de no notificarse adecuadamente la resolución, orden o sentencia,
esta no surte efecto y los términos no comienzan a cursar. Íd.
En lo atinente al caso de marras, nuestro más Alto Foro
dispuso en [CITATION] que, previo
a imponer una sanción tan drástica como lo es la eliminación de las
alegaciones o la desestimación de una causa de acción, el tribunal
tiene que apercibir directamente a la parte sobre el incumplimiento
de su representante legal con las órdenes del tribunal y de las
consecuencias de ello, independientemente de que la parte sea una
persona natural o jurídica.
III.
En su recurso, la Corporación RRG argumenta que el foro de
instancia erró al dictar sentencia en su contra en rebeldía. Ello, a
pesar de que, en estricto derecho, procedía ser relevada de la
rebeldía porque presuntamente no fue debidamente notificada de KLAN202400140
los dictámenes del TPI relacionados a la imposición de la rebeldía.
Señala que, al así actuar, el TPI violó los principios fundamentales
del debido proceso de ley. A lo antes se añade que, la Corporación
RRG contestó la demanda y sometió el descubrimiento de prueba,
demostrando así su intención de participar activamente en el
proceso legal.
Tras un detenido examen del expediente ante nuestra
consideración, así como de los documentos que surgen del
expediente digital en SUMAC, constatamos que previo a sancionar a
la Corporación RRG con la anotación de rebeldía, el foro primario
emitió dos órdenes de mostrar causa dirigidas a la parte
demandada; apercibió a dicha parte y a su representación legal que
su incumplimiento con las órdenes del tribunal pudiese conllevar la
anotación de la rebeldía, entre otras potenciales sanciones. Luego
impuso una sanción económica a favor de la parte demandante. A
lo anterior se añade que, el foro primario notificó la Orden de Mostrar
Causa fechada el 30 de noviembre de 2021 a las representaciones
legales de ambas partes, así como, directamente a la Corporación
RRG.
Sin embargo, precisamos que, la Minuta de la vista celebrada
el 21 de enero de 2022 no fue notificada en autos. Resulta imperioso
puntualizar que, fue durante dicho señalamiento que, el TPI
sancionó a la parte demandada al anotar la rebeldía a la
Corporación RRG y aumentar la sanción monetaria a $300.00.
Entiéndase que, no obra en el expediente una orden del TPI que
recoja la referida determinación y que haya sido notificada a la
Corporación RRG y a ambas representaciones legales, tal cual lo
exigen las normas aplicables al debido proceso de ley.
Aun cuando el TPI apercibió la anotación de rebeldía en la
Orden de Mostrar Causa notificada el 30 de noviembre de 2021,
posteriormente notificó una Orden el 18 de marzo de 2022 en la cual KLAN202400140
informó la transferencia de la vista en rebeldía para el 12 de mayo
de 2022, ello no subsana el hecho de que el foro primario no notificó
a la Corporación RRG ni a su representante legal el dictamen por el
cual la sanción de eliminar las alegaciones mediante la anotación de
la rebeldía a la parte demandada. Incluso, en la referida Orden de
18 de marzo de 2022, el TPI tampoco hizo alusión al aumento en la
sanción de $150.00 a $300.00, por lo que, la Corporación RRG ni
su representación legal fueron debidamente notificados para dar
cumplimiento a la misma.
Cabe puntualizar que, la Regla 45.1 de las Reglas de
Procedimiento Civil, [CITATION], versa sobre la
anotación de rebeldía, y dispone en su última oración que, la
omisión de anotar la rebeldía no afectará la validez de una sentencia
dictada en rebeldía. A poco examinar parecería que, dicha regla
permite obviar la notificación de una anotación de rebeldía en la que
se eliminan las alegaciones, como sanción previa a, dictar una
sentencia en rebeldía. Sin embargo, nuestro análisis, tanto de la
Regla 45.1 como de la Regla 39.2 (a), nos lleva a otra conclusión.
De un examen sosegado de dichas disposiciones reconocemos
que, ambas versan sobre la anotación de rebeldía y sus efectos. No
obstante, la anotación de rebeldía relacionada a la sanción de
eliminación de alegaciones ante incumplimientos con órdenes del
tribunal, más bien se da dentro del contexto de sanciones
progresivas en donde el legislador específicamente dispuso que, la
notificación es requerida, primero a la representación legal y luego
directamente a la parte. De hecho, como se sabe, nuestro Alto Foro
así lo ha reiterado mediante la jurisprudencia antes citada.
Distinto es el escenario en donde el tribunal deja de anotar
una rebeldía, previo a dictar una sentencia en rebeldía por falta de
contestación a una demanda, conforme a lo expuesto en la Regla
45.1, supra. Mediante un buen ejercicio de hermenéutica colegimos KLAN202400140
que, la interrelación y propósito de ambas disposiciones procesales
ciertamente versan sobre la anotación de rebeldía y sus efectos. Sin
embargo, la eliminación de las alegaciones de una parte demandada
-como sanción- mediante la anotación de rebeldía, se da en el
contexto de sanciones progresivas cuya notificación está
expresamente estatuida en la Regla 39.2(a), [CITATION]. En su
consecuencia y según la normativa antes expuesta, la falta de
notificación impide que las órdenes judiciales surtan efecto. Por
ello, concluimos que, en este caso, la falta de notificación de la
determinación decretando la eliminación de las alegaciones y al
aumento de la sanción monetaria derrota la eficacia del dictamen
apelado.
Al amparo de las disposiciones relacionadas al debido proceso
de ley, ante la falta de notificación de la minuta resolución emitida
el 21 de enero de 2023, nos vemos en la obligación de dejar sin efecto
el dictamen apelado.
IV.
Por los fundamentos antes expuestos, revocamos la Sentencia
en rebeldía apelada y devolvemos al caso al TPI para la continuación
de los procedimientos, conforme a lo aquí resuelto.
Lo acordó el Tribunal y lo certifica la Secretaria del Tribunal
de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL XI
ANGEL ORTIZ ROSA Apelación
procedente del
Apelante Tribunal de Primera
Instancia, Sala
v. Superior de Fajardo
ESTADO LIBRE KLAN202400307 Caso Núm.:
ASOCIADO DE PUERTO FA2022CV00470
RICO
Sobre: DAÑOS Y
Apelados PERJUICIOS
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de mayo de 2024.
Comparece ante nos, el apelante el señor Ángel Ortiz Rosa
(señor Ortiz Rosa) mediante el recurso de Apelación. Nos solicita la
revocación de la Sentencia emitida el 26 de enero de 2024 y
notificada el 29 de enero de 2024, por el Tribunal de Primera
Instancia, Sala Superior de Fajardo (TPI). Mediante el referido
dictamen, el foro primario desestimó la Demanda instada por el
apelante de conformidad a la Regla 39.2(b) de Procedimiento Civil.
Por los fundamentos expuestos a continuación, revocamos la
Sentencia apelada.
I.
El 5 de mayo de 2022, el señor Ortiz Rosa instó una Demanda
de daños y perjuicios en contra del Estado Libre Asociado de Puerto
Rico (ELA), la Autoridad de Carreteras y Trasportación de Puerto
Rico (ACT), el Departamento de Transportación y Obras Públicas
(DTOP), y el Municipio Autónomo de Fajardo (Municipio), entre
otros.1 En ajustada síntesis, alegó que el 11 de mayo de 2021 sufrió
[SEGMENT 4]
1 Apéndice de Apelante, págs. 1-3.
Número Identificador
SEN2024__________________ KLAN202400307
un accidente vehicular por la falta de iluminación e inobservancia
de aviso respecto a una excavación realizada en la Carretera Número
53 de Fajardo. Como consecuencia, detalló que sufrió daños en su
espalda, en particular, en el área lumbar y cervical. A raíz de dicha
situación, señaló que ha recibido terapias físicas, sin embargo, su
dolor no ha minimizado. Por lo anterior, solicitó $77,002.00 en
concepto de daños físicos, angustias mentales y daños provocados
a su vehículo de motor.
En respuesta, el 28 de septiembre de 2022, la Autoridad de
Carreteras y Transportación presentó su Contestación a Demanda.[CITATION]
En esencia, señaló que la Demanda no aduce hechos que justifiquen
la concesión de un remedio. Arguyó que la causa de acción se
encuentra total o parcialmente prescrita. En vista de lo anterior,
peticionó que el tribunal declarase No Ha Lugar la Demanda con la
imposición correspondiente de gastos, costas y honorarios.
Por su parte, el 30 de septiembre de 2022, el Municipio de
Fajardo sometió una Solicitud de Desestimación de la Demanda, en
cuanto al Municipio de Fajardo, por Incumplimiento del Demandante
con el Artículo 1.051 del Código Municipal.[CITATION] En dicho escrito, expuso
que el demandante no le remitió una notificación extrajudicial como
condición previa para reclamar judicialmente. Por tanto, sostuvo
que el tribunal carece de jurisdicción sobre la materia. Solicitó la
desestimación del reclamo instado en su contra. Consecuentemente,
el foro primario concedió el término de veinte (20) días para que el
demandante presentara su posición.
Así las cosas, el 22 de octubre de 2022, el Apelante presentó
Moción Solicitando Tiempo Adicional para Contestar Moción
Solicitando Desestimación.[CITATION] En ésta, su representante legal indicó
que enfrentaba una delicada situación de salud. Por lo que, solicitó
[CITATION] KLAN202400307
un término de veinte (20) días para cumplir con lo ordenado.
Evaluada su petición, el tribunal concedió el término solicitado.
En cumplimiento con lo ordenado, el 20 de diciembre de 2022,
la parte demandante presentó una Moción en Oposición a Moción de
Desestimación.[CITATION] En ésta, alegó que el requisito de notificación ha
sido eximido en determinadas situaciones. En particular,
argumentó que como se encuentra en tratamiento, éste dispone del
término de treinta (30) para notificar una vez culmine dicho
procedimiento a tenor con el Artículo 15.003 de la Ley Núm. 81.
Examinados los argumentos, el 23 de noviembre de 2023, el foro
primario dictó Sentencia Parcial en la cual desestimó el reclamo
contra el Municipio por incumplimiento de notificación
extrajudicial.[CITATION]
Eventualmente, el 19 de diciembre de 2022, el Apelante
sometió una Moción de Renuncia a Representación Legal.[CITATION] En lo
atinente, su abogado solicitó la renuncia por motivo de su delicada
condición de salud. Requirió, además, un término de treinta (30)
días para que su cliente obtuviera nueva representación legal. Ese
mismo día, el tribunal declaró Ha Lugar su petición.[CITATION] En efecto, el
10 de enero de 2023, la parte demandante presentó una Moción
Solicitando Término para Contratar Abogado debido a que el periodo
navideño impidió finalizar los trámites de contratación de abogado.[CITATION]
Ante tales circunstancias, peticionó treinta (30) días adicionales. En
efecto, el foro primario concedió diez (10) días adicionales para
anunciar nueva representación legal.[CITATION] En vista de ello, el 24 de
enero de 2023, el demandante presentó Moción Asumiendo
Representación Legal y Solicitud de Vistas sobre el Estado de los
[CITATION] KLAN202400307
Procedimientos.[CITATION] En esa misma fecha, el TPI notificó la aceptación
de su representante legal actual.
El 29 de junio de 2023, el foro primario emitió una Orden,
notificada el 30 de junio de 2023, en la cual requirió que en el
término de diez (10) días la parte demandante informara sobre el
estado del caso.
Sin comparecer aún el demandante, el 13 de julio de 2023, el
tribunal apelado dictó una Orden, notificada el 17 de julio de 2023.[CITATION]
Mediante ese dictamen, le requirió que en el término de diez (10)
días contados a partir de la notificación, expusiera por escrito las
razones por las cuales no desestimar el presente caso a tenor con la
Regla 39.2(a) de Procedimiento Civil.
Al día siguiente, entiéndase, el 18 de julio de 2023, el
demandante presentó una Moción en Cumplimiento de Orden.[CITATION]
Argumentó que su inactividad responde a los trámites
extrajudiciales relacionados con el descubrimiento de prueba.
Informó que aguarda aún la celebración de la vista solicitada para
atender el estado de los procedimientos. A su vez, peticionó que el
tribunal no desestimara su reclamación judicial. Evaluada su
moción, el 18 de julio de 2023, el TPI emitió una Orden con la
siguiente indicación:
SE SEÑALA VISTA DE ESTADO DE PROCEDIMIENTOS
PARA EL 22 DE ENERO DE 2024 A LAS 11AM
MEDIANTE VIDEOCONFERENCIA.[CITATION]
No obstante, el 22 de enero de 2023, el foro primario motu-
proprio dejó sin efecto el señalamiento calendarizado.[CITATION] Como
resultado, el 13 de febrero de 2024 emitió y notificó Sentencia en la
cual desestimó la Demanda a tenor con la Regla 39.2(b) de
[CITATION] KLAN202400307
Procedimiento Civil.[CITATION] En lo pertinente, el TPI esbozó el siguiente
razonamiento:
El 17 de julio de 2023 se emitió orden bajo la Regla
.2(a) mediante la cual se le concedió un término de
días a la parte demandante para que expusiera por
escrito las razones por las cuales no se debía desestimar
el caso. El 18 de julio de 2023 el representante legal de
la parte demandante presento una Moción en
Cumplimiento de Orden mediante la cual solicitó que
no se desestimara el caso y solicitando el señalamiento
de una vista sobre el estado de los procedimientos. Ese
mismo día se señaló la vista solicitada para el 22 de
enero de 2024. Luego de seis meses sin actividad en el
presente caso este Tribunal procede a realizar una
determinación al amparo de la Regla 39.2(b) de
Procedimiento Civil.[CITATION]
[…]
No existe duda que estamos ante un caso para el cual
el periodo de inactividad de seis meses contemplado por
la Regla 39.2(b) transcurrió. Este Tribunal ya había
emitido orden a la parte demandante para que
expresara sus razones por las cuales no se debía
desestimar el caso bajo la Regla 39.2(a), ya que no se
había realizado trámite alguno desde que asumió
representación legal el nuevo abogado de la parte
demandante. La parte demandante se expresó mediante
Moción en Cumplimiento de Orden, pero pasaron seis
meses sin que se hubiera efectuado trámite alguno.[CITATION]
En virtud de lo anterior, decretó que procedía la desestimación
con perjuicio de conformidad a la Regla 39.2(b) de Procedimiento
Civil. Oportunamente, el 13 de enero de 2024, la parte demandante
presentó Reconsideración.[CITATION] En su escrito, señaló que el 22 de enero
de 2024, el foro primario dejó sin efecto motu-proprio la celebración
de la vista. También, puntualizó que siete (7) días después dictó
sentencia desestimatoria. Argumentó que la referida desestimación
no fue precedida por los apercibimientos o los requisitos procesales
impuestos por la Regla 39.2(a) de Procedimiento Civil. En vista de
ello, sostuvo que el tribunal infringió su debido proceso de ley. Luego
de evaluar sus planteamientos, el 29 de enero de 2024, el TPI emitió
[CITATION] KLAN202400307
[SEGMENT 5]
una Orden declarando No Ha Lugar la reconsideración
peticionada.20
Inconforme, el 1 de abril de 2024, el señor Ortiz Rosa acude
ante nos mediante un Escrito de Apelación Civil. En su recurso,
presenta el siguiente señalamientos de error:
ERRÓ EL TPI AL DISPONER COMO DRÁSTICA
SANCIÓN DICTAR SENTENCIA CON PERJUICIO EN
INOBSERVANCIA DEL PROCEDIMIENTO
DISPUESTO EN LA REGLA 39.2(A), 32 L.P.R.A. AP.
V. R. 39.2(A) Y LA NORMATIVA JURISPRUDENCIAL
VIGENTE QUE REGULA CÓMO SANCIONAR EL
INCUMPLIMIENTO DE LAS ÓRDENES JUDICIALES.
Examinada la petición presentada, le requerimos a la parte
apelada someter su alegato en oposición. En cumplimiento con lo
ordenado, el 18 de abril de 2023, la Autoridad de Carreteras y
Transportación presentó su Oposición a Apelación. Por su parte, el
29 de abril de 2024, el Gobierno de Puerto Rico en representación
de la ACT sometió un escrito intitulado Comparecencia Especial sin
someterse a la jurisdicción. En éste, argumentó que la parte
demandante no le emplazó correctamente. Por tanto, solicitó que le
relevaran de presentar su oposición. Con el beneficio de la
comparecencia de las partes, procedemos a resolver.
II.
A. Desestimación por incumplimiento de orden de conformidad
a la Regla 39.2(a) de Procedimiento Civil
Nuestro ordenamiento jurídico favorece la ventilación de los
casos en sus méritos. [CITATION], 124 (1992). No obstante, una parte no tiene derecho a
prolongar la vida de su caso “sin más excusa para su falta de
diligencia e interés en la tramitación del mismo que una escueta
referencia a circunstancias especiales”. [CITATION], 816 (1986). En tales escenarios, los tribunales
20 Íd., pág. 51. KLAN202400307
ostentan la facultad “para imponer una serie de sanciones contra
aquella parte que incumpla una orden del tribunal”. [CITATION]
En particular, la Regla 39.2(a), 32 LPRA Ap. V, R. 39.2(a),
preceptúa el procedimiento para atender el incumplimiento con
órdenes del tribunal:
(a) Si la parte demandante deja de cumplir con estas
reglas o con cualquier orden del tribunal, el tribunal a
iniciativa propia o a solicitud de la parte demandada
podrá decretar la desestimación del pleito o de cualquier
reclamación contra ésta o la eliminación de las
alegaciones, según corresponda. Cuando se trate de un
primer incumplimiento, la severa sanción de la
desestimación de la demanda o la eliminación de las
alegaciones tan sólo procederá después que el tribunal,
en primer término, haya apercibido al abogado o
abogada de la parte de la situación y se le haya
concedido la oportunidad para responder. Si el abogado
o abogada de la parte no responde a tal apercibimiento,
el tribunal procederá a imponer sanciones al abogado o
abogada de la parte y se notificará directamente a la
parte sobre la situación. Luego de que la parte haya sido
debidamente informada o apercibida de la situación y
de las consecuencias que pueda tener el que la misma
no sea corregida, el tribunal podrá ordenar la
desestimación del pleito o la eliminación de las
alegaciones. El tribunal concederá a la parte un término
de tiempo razonable para corregir la situación que en
ningún caso será menor de treinta (30) días, a menos
que las circunstancias del caso justifiquen que se
reduzca el término.
Este mecanismo procesal procura que una parte responda
prontamente con el fin de alcanzar la solución justa, rápida y
económica de los casos y que las controversias se puedan atender
en los méritos. [CITATION] Véase, también, [CITATION]
La precitada regla fija un proceso de notificaciones y
apercibimientos previo a la desestimación del caso. Ante un contexto
que amerite la imposición de sanciones, el tribunal debe amonestar
primeramente al abogado de la parte. [CITATION] Ahora bien, no podrá imponer sanciones
drásticas cuando “la parte que ejercita su derecho en corte no está KLAN202400307
informada de los trámites rutinarios”. [CITATION], supra, pág. 814; [CITATION], 85
DPR 823, 830 (1962). Si la acción disciplinaria no produce efectos
positivos, entonces procede la desestimación de la demanda o la
eliminación de las alegaciones, siempre y cuando la parte haya sido
debidamente informada y apercibida de las consecuencias que
acarrea el incumplimiento. [CITATION], supra; [CITATION], supra, págs. 222-22.
B. Desestimación por inactividad de conformidad a la Regla
39.2(b) de Procedimiento Civil
La Regla 39.2(b) de Procedimiento Civil, 32 LPRA Ap. V, R.
39.2(b), permite la desestimación de la causa de acción cuando las
partes en un término de seis (6) meses no han efectuado trámite
alguno. A esos fines, la precitada disposición establece:
(b) El tribunal ordenará la desestimación y el archivo de
todos los asuntos civiles pendientes en los cuales no se
haya efectuado trámite alguno por cualquiera de las
partes durante los últimos seis meses, a menos que tal
inactividad se le justifique oportunamente. Mociones
sobre suspensión o transferencia de vista o de prórroga
no serán consideradas como un trámite a los fines de
esta regla. El tribunal dictará una orden en todos dichos
asuntos, la cual se notificará a las partes y al abogado
o abogada, requiriéndoles dentro del término de diez
(10) días desde que el Secretario o Secretaria les
notifique, que expongan por escrito las razones por las
cuales no deban desestimarse y archivarse los mismos.
32 LPRA Ap. V, R. 39.2(b).
Una desestimación por inactividad tendrá el efecto de una
adjudicación en los méritos. [CITATION], 130 DPR 730, 738 (1992). Cuando la sentencia dictada
advenga final y firme, constituirá cosa juzgada y le cerrará las
puertas a la parte perjudicada para instar casos subsiguientes por
los mismos hechos o las causas de acción. [CITATION], 177 DPR 714, 721 (2009).
En escenarios ocasionados por inactividad, el Tribunal
Supremo de Puerto Rico ha sido enfático en imponer remedios
alternos previo a la desestimación: KLAN202400307
Planteada una situación que amerita sanciones, el
tribunal debe, en primera instancia, imponerlas al
abogado de la parte. Si dicha acción disciplinaria no
surte efectos positivos, procederá la imposición severa
de la desestimación de la demanda o eliminación de las
alegaciones únicamente después que la parte haya sido
propiamente informada y apercibida de la situación y
de las consecuencias que pueda tener el que la ésta no
sea corregida. [CITATION], págs. 222-223; [CITATION],
113 DPR 494, 498 (1982).
Cónsono con lo anterior, “la privación a un litigante de su día
en corte es una medida procedente solo en casos extremos”. [CITATION], 158 DPR 775, 780 (2003). La normativa esbozada
permite “que los tribunales atemperen su aplicación frente a la
política pública de que los casos se ventilen en sus méritos”. [CITATION], supra, pág. 721.
III.
En el caso presente, el señor Ortiz Rosa alega que incidió el
Tribunal de Primera Instancia al desestimar su causa de acción civil.
Sostiene que la desestimación con perjuicio infringe su debido
proceso de ley y le priva de su día en corte. Señala que previo a
decretar la sanción extrema, el foro primario debió emitir un
apercibimiento e imponer una sanción a su representante legal.
Tras evaluar sosegadamente el expediente ante nuestra
consideración, concluimos que erró el tribunal apelado al
dictaminar la desestimación con perjuicio de la Demanda instada
por la parte apelante. El foro primario debió emplear la
desestimación como último recurso. Le correspondía imponer una
sanción menos drástica a los fines de garantizar la ventilación del
[SEGMENT 6]
caso en sus méritos. Veamos.
En primer lugar, hacemos referencia a las particularidades de
este caso. En específico, 14 de diciembre de 2022, el licenciado
Freddie Blondet Gutiérrez, quien era abogado del señor Ortiz Rosa,
presentó su Moción de Renuncia a Representación Legal debido a su KLAN202400307
crítico estado de salud. Ante tales circunstancias, el 24 de enero de
2023, el TPI aceptó que el licenciado Luis E. Pinto Andino asumiera
la representación legal del demandante.
Transcurrido un término de seis meses, el 29 de junio de
2023, el foro primario emitió una Orden, notificada el 30 de junio de
2023, en la cual exclusivamente requirió a la parte demandante
informar el estado del presente caso en el término de diez (10) días.
En vista de que el apelante no cumplió con el referido dictamen, el
17 de julio de 2023, el tribunal apelado emitió una Orden al amparo
de la Regla 39.2(a) de Procedimiento Civil. En ésta, requirió que
expusiera sus razones por las cuales no deba desestimar su caso.
Cabe destacar que, dicho dictamen no incluye un apercibimiento
sobre futura sanción o una notificación sobre la posibilidad de una
desestimación. Tampoco la determinación presenta un
pronunciamiento que concediera a la parte un término razonable de
treinta (30) días para corregir la situación de incumplimiento, tal
como prescribe la aludida regla.
Al día siguiente, el 18 de julio de 2023, el señor Ortiz Rosa
expuso que la inactividad responde a los trámites extrajudiciales
relacionados con el descubrimiento de prueba. Así las cosas, el
tribunal decretó la celebración de una vista el 22 de enero de 2024.
Sin embargo, llegado ese día, el tribunal dejó sin efecto
automáticamente la vista calendarizada. Con posterioridad,
desestimó la causa de acción mediante un análisis mecanicista de
conformidad a la Regla 39.2(b) de Procedimiento Civil.
Recordemos, pues, que la precitada regla exige que previo a
desestimar por inactividad se conceda un término de diez (10) a la
parte demandante para expresar por escrito las razones por las
cuales no desestimar. Incluso, luego de ese procedimiento, se
favorece decretar acciones menos severas como la imposición
sanciones al representante legal o la eliminación de alegaciones KLAN202400307
siempre y cuando la parte haya sido informada y apercibida de la
situación. Véase, [CITATION], supra, págs.
222-223; [CITATION].
Sin embargo, no surge del expediente que el TPI haya
notificado directamente a la parte apelante sobre el asunto de
inactividad a tenor con la Regla 39.2(b) de Procedimiento Civil.
Tampoco, impuso sanciones directas a su representante legal.
Meramente fundamentó la decisión desestimatoria en el
procedimiento decretado en la Orden emitida el 17 de julio de 2023
a tenor con la Regla 39.2(a) de Procedimiento Civil. En tal dictamen,
el foro de instancia requirió al demandante a comparecer en el
término de diez (10), tal como lo hizo. No obstante, dicho proceder
resulta insuficiente para desestimar la causa de acción.
Correspondía adoptar un trámite judicial que garantizara el debido
proceso de ley, y consecuentemente, no privara al demandante de
su día en corte.
Una lectura detenida de la Sentencia desestimatoria corrobora
que el señor Rosa Ortiz no estuvo apercibido respecto a la situación
de inactividad del caso y a sus posibles consecuencias a tenor con
la Regla 39.2(b) de Procedimiento Civil. En vista de lo anterior,
resulta forzoso concluir que incidió el TPI al desestimar la
reclamación judicial sin siquiera notificar al Apelante ni imponer
sanciones a su representante legal como medida menos drástica. En
aras de favorecer la ventilación de los casos en sus méritos,
revocamos el dictamen apelado.
IV
Por las razones que anteceden, revocamos la Sentencia
apelada. The provided text does not contain any court ruling citations that need to be replaced. The text appears to be procedural and administrative in nature, without references to specific legal cases by name or number aside from the court document's docket number.
Hence, no modifications are necessary for this part of the court ruling.
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
RADAMÉS JORDÁN CERTIORARI
ORTIZ procedente del
Peticionario Tribunal de
Primera Instancia,
v. Sala Superior de
FAJARDO
CONSEJO DE [CITATION]
TITULARES DEL Caso número:
CONDOMINIO DOS FAC2022CV00605
MARINAS I IN SERVICIO
LLC., LAS Sobre: DAÑOS Y
CORPORACIONES PERJUICIOS
DESCONICODAS A, B, C
Y LAS ASEGURADORAS
DESCONOCIDAS
Recurridos
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Díaz Rivera, Jueza Ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de mayo de 2024.
Comparece ante nos In-Servicio, LLC (peticionario) mediante
el recurso de Certiorari. Nos solicita la revocación de una Orden
emitida el 19 de marzo de 2024, por el Tribunal de Primera Instancia
(TPI), Sala Superior de Fajardo. Mediante el referido dictamen, el
foro primario dejó sin efecto una Orden que concedía una prórroga
a favor de la parte peticionaria bajo el fundamento de que existe una
anotación de rebeldía dictada en su contra.
Por los fundamentos que expondremos a continuación,
expedimos el auto de certiorari, y confirmamos el dictamen recurrido.
I.
La génesis de este caso se remonta a la presentación una
Demanda de daños y perjuicios instada por el señor Radamés
Jordán Ortiz (recurrido) en contra de In-Servicio L.L.C (In-Servicio)
y el Consejo de Titulares del Condominio Dos Marinas I (Consejo),
Número Identificador
SEN2024 _______________ KLCE202400410
entre otros.1 En esencia, el demandante alegó que su apartamento
presenta múltiples estructuras destrozadas por las actuaciones
ocasionadas por la parte demandada durante un proceso de
reparación de la tubería central del Condominio. En vista de los
anterior, solicitó $250,000.00 por los daños a la propiedad y las
angustias mentales experimentadas.
Posteriormente, el 9 de agosto de 2022, la parte recurrida
emplazó a la parte peticionaria.2 Sin embargo, ante su
incomparecencia, el TPI le anotó la rebeldía a solicitud de la parte
demandante.3 El 23 de febrero de 2023, el foro primario emitió una
Sentencia en rebeldía en la cual condenó a la parte peticionaria al
pago de $250,000.00 en concepto de daños y angustias mentales
por la privación de la propiedad y el destrozo de su estructura.4
Tras varios acontecimientos procesales, el 31 de octubre de
2023, In-Servicio acudió ante nos mediante un recurso de apelación.
Evaluados sus argumentos, el 20 de diciembre de 2023, emitimos
una Sentencia consolidada con el recurso apelativo presentado por
el Consejo.5 Mediante la referida determinación, revocamos el
dictamen apelado al amparo de la Regla 49.2 de Procedimiento
Civil.6 En síntesis, decretamos que la Sentencia apelada es nula por
no haberse diligenciado el emplazamiento del Consejo.
Ante tales circunstancias, el 15 de febrero de 2024, el señor
Jordán Ortiz presentó una Demanda Enmendada con idénticas
alegaciones a la reclamación judicial instada con anterioridad.7
1 Surge del expediente apelativo que la aludida demanda se presentó el 16 de junio
de 2022. Véase Apéndice de peticionario, págs. 1-4.
2 Apéndice del recurrido, págs. 1-3.
3 Apéndice del recurrido, págs. 4-5.
4 Apéndice de peticionario, pág. 5-8.
5 La asignación alfanumérica de la mencionada determinación apelativa es
[CITATION]
6 Véase Sentencia emitida por el Tribunal de Apelaciones el 20 de diciembre de
[SEGMENT 7]
2023 correspondiente a la designación alfanumérica de los casos consolidados
[CITATION]
7 Apéndice de peticionario, págs. 61-64. KLCE202400410
Así las cosas, In-Servicio presentó una Moción Informativa y
en Solicitud de Prórroga.8 En este escrito, solicitó un término de
treinta (30) días para contestar la Demanda o presentar cualquier
tipo de moción dispositiva. Evaluada su petición, el TPI dictaminó
una Orden, notificada el 27 de febrero de 2024, en la cual concedió
la prórroga.9 No obstante, al día siguiente, la parte recurrida
presentó una Moción en Oposición a Prórroga e Informativa y Solicitud
de Reconsideración.10 En esta, arguyó que a pesar de que el tribunal
intermedio declaró nula la Sentencia, nunca se dejó sin efecto la
rebeldía impuesta contra la parte peticionaria.
Ante tales planteamientos, In-Servicio sometió una Breve
Moción sobre Réplica a Moción de Desglose.11 En este escrito,
argumentó que tras el foro apelativo decretar nulidad de la
determinación apelada, le corresponde al demandante volver a
emplazar y acoger los términos aplicables a la contestación de
demanda y descubrimiento de prueba. Señaló, además, que el
demandante erra al interpretar que el dictamen apelativo no le
concedió remedio alguno a In-Servicio. Por su parte, el demandante
presentó una Dúplica a Réplica a Oposición a Moción de Prórroga e
Informativa y Solicitud de Reconsideración. En esta, reiteró que
forzosamente la anotación de rebeldía se mantiene al no ser objeto
de la determinación del Tribunal de Apelaciones.
Evaluadas las múltiples mociones presentadas en torno a esta
controversia,12 19 de marzo de 2024, el foro a quo emitió una Orden
en la cual declaró Ha Lugar la solicitud del señor Jordán Ortiz.13
8 Apéndice de peticionario, pág. [CITATION].
9 Apéndice de peticionario, pág. [CITATION].
10 Apéndice de peticionario, págs., [CITATION].
11 Apéndice de peticionario, págs., [CITATION].
12 Apéndice de peticionario, págs., [CITATION].
13 Apéndice de peticionario, pág. [CITATION]. KLCE202400410
Inconforme con dicha determinación, el 10 de abril de 2024,
In-Servicio acudió ante nos mediante un recurso de Certiorari y
señaló la comisión del siguiente error:
ERRÓ EL HONORABLE TRIBUNAL DE PRIMERA
INSTANCIA AL MANTENER LA REBELDÍA CONTRA
LA PARTE COMPARECIENTE, A PESAR DEL FORO
APELATIVO HABER DECLARADO NULA LA
SENTENCIA DE INSTANCIA, TENIENDO LA
COMPARECIENTE DEFENSAS VÁLIDAS Y NO
CAUSANDO PERJUICIO ALGUNO A LA PARTE
DEMANDANTE.
En el ínterin, el 24 de abril de 2024, el tribunal recurrido
emitió una Orden Emendada, notificada el 29 de abril de 2024, con
el siguiente pronunciamiento:
Se enmienda la Orden del 19 de marzo de 2024 para
que exprese que se declaro Ha Lugar la reconsideración
presentada por la parte demandante y se deja sin efecto
la Orden concediéndole una prórroga a la demandada
In Servicio, LLC para contestar la demanda enmendada.
A la demandada In Servicios, LLC se le anotó la rebeldía
el 14 de octubre de 2022. Aun cuando el Tribunal de
Apelaciones revocó la sentencia en rebeldía emitida por
este Tribunal, no resolvió ni determinó nada sobre la
anotación de rebeldía de la codemandada In Servicios,
LLC.[CITATION]
El 6 de mayo de 2024, este Tribunal emitió una Resolución en
la cual ordenó a la parte recurrida a presentar su posición. En
cumplimiento con lo ordenado, el señor Jordán Ortiz sometió su
Oposición a Expedición de Certiorari.
Con el beneficio de la comparecencia de ambas partes,
procedemos a discutir el marco legal aplicable a la controversia ante
nuestra consideración.
II.
A. Recurso de certiorari
Como es sabido, el certiorari es un recurso extraordinario
mediante el cual un tribunal de jerarquía superior puede revisar a
su discreción una determinación de un tribunal inferior.
[CITATION] KLCE202400410
[CITATION]. Véase, también, Artículo 670 del Código de
Enjuiciamiento Civil de 1933, conocido como Ley de Recursos
Extraordinarios, 32 LPRA sec. 3491. La característica distintiva de
este recurso “se asienta en la discreción encomendada al tribunal
revisor para autorizar su expedición y adjudicar sus méritos”. [CITATION], preceptúa las instancias que activan nuestras facultades
revisoras ante resoluciones u órdenes interlocutorias:
El recurso de certiorari para revisar resoluciones u
órdenes interlocutorias dictadas por el Tribunal de
Primera Instancia, solamente será expedido por el
Tribunal de Apelaciones cuando se recurra de una
resolución u orden bajo las Reglas 56 y 57 o de la
denegatoria de una moción de carácter dispositivo. No
obstante, y por excepción a lo dispuesto anteriormente,
el Tribunal de Apelaciones podrá revisar órdenes o
resoluciones interlocutorias dictadas por el Tribunal de
Primera Instancia cuando se recurra de decisiones
sobre la admisibilidad de testigos de hechos o peritos
esenciales, asuntos relativos a privilegios evidenciarios,
anotaciones de rebeldía, en casos de relaciones de
familia, en casos que revistan interés público o en
cualquier otra situación en la cual esperar a la
apelación constituiría un fracaso irremediable de la
justicia. Al denegar la expedición de un recurso de
certiorari en estos casos, el Tribunal de Apelaciones no
tiene que fundamentar su decisión. Regla 52.1 de
Procedimiento Civil, supra. (Énfasis suplido).
En lo pertinente, en [CITATION], el Tribunal Supremo de Puerto Rico
resolvió que los foros apelativos tienen jurisdicción para revisar
interlocutoriamente las anotaciones de rebeldía:
Ante un error cometido por el tribunal al anotar la
rebeldía, la parte afectada tiene el derecho de
solicitar que se levante tal rebeldía por no haberse
cumplido con la citada Regla 45.1 de Procedimiento
Civil. Una denegatoria a esa solicitud conllevaría,
conforme al texto de la referida regla, el que se revise en
certiorari e interlocutoriamente la denegatoria del KLCE202400410
tribunal de levantar tal anotación de rebeldía. Por otro
lado, la inacción o denegatoria del tribunal para anotar
la rebeldía equivaldría a su incumplimiento con lo
dispuesto en la Regla 45.1. Por lo tanto, y
nuevamente según el texto de la Regla 52.1 de
Procedimiento Civil, supra, la parte tendría el
derecho a que discrecionalmente el Tribunal de
Apelaciones revisara interlocutoriamente tal error o
inacción. (Énfasis suplido).
Ahora bien, aun cuando al amparo de la Regla 52.1 de
Procedimiento Civil, supra, ostentamos jurisdicción sobre
determinaciones interlocutorias, “la expedición del auto y la
adjudicación en sus méritos es discrecional”. [CITATION]
De manera similar, la Regla 40 del Tribunal de Apelaciones, 4
LPRA Ap. XXII-B, delimita los criterios para la expedición de un auto
de certiorari:
(A) Si el remedio y la disposición de la decisión
recurrida, a diferencia de sus fundamentos, son
contrarios a derecho.
(B) Si la situación de hechos planteada es la más
indicada para el análisis del problema.
(C) Si ha mediado prejuicio, parcialidad o error craso y
manifiesto en la apreciación de la prueba por el
Tribunal de Primera Instancia.
(D) Si el asunto planteado exige consideración más
detenida a la luz de los autos originales, los cuales
deberán ser elevados, o de alegatos más elaborados.
(E) Si la etapa del procedimiento en que se presenta el
caso es la más propicia para su consideración.
[SEGMENT 8]
(F) Si la expedición del auto o de la orden de mostrar
causa no causan un fraccionamiento indebido del pleito
y una dilación indeseable en la solución final del litigio.
(G) Si la expedición del auto o de la orden de mostrar
causa evita un fracaso de la justicia.
Estas consideraciones orientan la función del foro apelativo
para ejercer sabiamente su facultad discrecional. [CITATION] A su vez, la precitada disposición
reglamentaria permite que el análisis revisorio no se efectúe en el
vacío ni se aparte de otros parámetros al momento de considerar los KLCE202400410
asuntos planteados. [CITATION]
supra; [CITATION]
A la luz de tales preceptos, los tribunales revisores no
debemos intervenir en las determinaciones de hechos del tribunal
de instancia, “salvo que se pruebe que dicho foro actuó con prejuicio
o parcialidad o incurrió en craso abuso de discreción o en error
manifiesto”. [CITATION]
B. La anotación de rebeldía
La anotación de rebeldía es un mecanismo procesal que
procura “disuadir a aquellos que recurran a la dilación de los
procedimientos como una estrategia de litigación”. [CITATION] supra, pág. 587. A esos fines, la Regla 45.1 de
Procedimiento Civil, 32 LPRA Ap. V, R. 45.1, delimita los escenarios
que permiten imponer la anotación de rebeldía:
Cuando una parte contra la cual se solicite una
sentencia que concede un remedio afirmativo haya
dejado de presentar alegaciones o de defenderse en otra
forma según se dispone en estas reglas, y este hecho se
pruebe mediante una declaración jurada o de otro
modo, el Secretario o Secretaria anotará su rebeldía.
En tales instancias, el tribunal puede ordenar la anotación
cuando la parte demandada: (1) no comparece después de haber
sido emplazado, (2) no se defiende mediante moción (3) ni
presenta oportunamente la contestación a la demanda.
[CITATION] supra, pág. 589.
(Énfasis suplido). Asimismo, la imposición de rebeldía ocurre
cuando “una de las partes en el pleito ha incumplido con algún
mandato del tribunal, lo que motiva a éste a imponerle la rebeldía KLCE202400410
como sanción”. [CITATION].
Anotada la rebeldía, se dan por admitidos todos los hechos
bien alegados en la demanda o la alegación que se haya formulado
en contra del rebelde, y se autoriza al tribunal a dictar sentencia, si
esta procede como cuestión de derecho. [CITATION]. Este proceder brinda un remedio
coercitivo contra una parte adversaria a la cual, habiéndosele
concedido la oportunidad de refutar la reclamación, por su
pasividad o temeridad opta por no defenderse. [CITATION].
Ahora bien, los tribunales no son meros autómatas obligados
a conceder indemnizaciones por estar dilucidándose un caso en
rebeldía. [CITATION]. La
anotación de rebeldía se debe dar dentro del marco de lo que es
justo, y la ausencia de tal justicia equivaldría a un abuso de
discreción. [CITATION].
Pese a que la rebeldía constituye un mecanismo procesal
discrecional, ésta no se sostendrá ante el ejercicio burdo o injusto.
[CITATION].
A esos fines, nuestro esquema procesal provee diversas
alternativas para dejar sin efecto una anotación de rebeldía dictada
erróneamente. En primer lugar, la parte interesada puede solicitar
el levantamiento de la anotación al amparo de la Regla 45.1 de
Procedimiento Civil, supra. En [CITATION], el Máximo Foro delineó la siguiente
interpretación en torno a la aludida regla:
[S]i un codemandado a quien se le anota la rebeldía
por alegadamente no haber contestado en el
término, puede probar que sí había contestado y que
la anotación de la rebeldía en su contra obedeció a KLCE202400410
una confusión por parte del Secretario o la
Secretaria ante los múltiples codemandados en el
expediente, su remedio es, de igual manera, solicitar
que se levante la rebeldía por error en la
implementación de la Regla 45.1 de Procedimiento
Civil, supra. Esto es, la parte no dejó de presentar
alegaciones o de defenderse, sino que la anotación
obedeció a un error del tribunal.
En tal circunstancia, el “fundamento en derecho para lograr
tal levantamiento sería el incumplimiento por parte del promovente
con la Regla 45.1 de Procedimiento Civil, supra”. Íd. Esta disposición
procesal no requiere demostrar la existencia de causa justificada.
De no aplicar el análisis anterior, corresponde identificar si
media justa causa para levantar la anotación de conformidad con la
Regla 45.3 de Procedimiento Civil, 32 LPRA Ap. V, R. 45.3. Esta regla
establece que “[e]l tribunal podrá dejar sin efecto una anotación de
rebeldía por causa justificada, y cuando se haya dictado sentencia
en rebeldía, podrá asimismo dejarla sin efecto de acuerdo con la
Regla 49.2”. Regla 45.3 de Procedimiento Civil, 32 LPRA Ap. V, R.
45.3.
C. Relevo de sentencia en el contexto de la anotación de
rebeldía
La Regla 49.2 de Procedimiento Civil, 32 LPRA Ap. V, R.49.2,
provee un mecanismo procesal para solicitar al foro primario el
relevo de los efectos de una sentencia, orden o procedimiento
siempre y cuando medien los fundamentos legales. [CITATION], 539 (2010). Véase, también, [CITATION], 509 (2007). A esos fines, la
precitada regla delimita las circunstancias que motivan la concesión
de este remedio:
(a) error, inadvertencia, sorpresa o negligencia
excusable;
(b) descubrimiento de evidencia esencial que, a pesar de
una debida diligencia, no pudo haber sido descubierta
a tiempo para solicitar un nuevo juicio de acuerdo con
la Regla 48; KLCE202400410
(c) fraude (incluso el que hasta ahora se ha denominado
“intrínseco” y el también llamado “extrínseco”), falsa
representación u otra conducta impropia de una parte
adversa;
(d) nulidad de la sentencia;
(e) la sentencia ha sido satisfecha, renunciada o se ha
cumplido con ella, o la sentencia anterior en que se
fundaba ha sido revocada o de otro modo dejada sin
efecto, o no sería equitativo que la sentencia continúe
en vigor, o
(f) cualquier otra razón que justifique la concesión de
un remedio contra los efectos de una sentencia. 32
LPRA Ap. V, R.49.2.
Esta regla permite al tribunal (a) conocer de un pleito
independiente con el propósito de relevar a una parte de una
sentencia, orden o procedimiento; (b) conceder un remedio a
una parte que en realidad no hubiere sido emplazada, y (c) dejar
sin efecto una sentencia por motivo de fraude al tribunal. [CITATION], supra, pág. 510. (Énfasis suplido).
En [CITATION], supra, pág.
294, el Tribunal Supremo de Puerto Rico extendió los criterios de la
Regla 49.2 de Procedimiento Civil, supra, a aquellos casos
relacionados con la anotación de rebeldía:
Expresamente sostenemos que los criterios inherentes
a la Regla 49.2 de Procedimiento Civil, supra, tales como
si el peticionario tiene una buena defensa en sus
méritos, el tiempo que media entre la sentencia y la
solicitud de relevo, y el grado de perjuicio que pueda
ocasionar a la otra parte la concesión del relevo de
sentencia, son igualmente aplicables cuando se solicita
que una sentencia dictada en rebeldía sea dejada sin
efecto.
Ante tales escenarios, la Regla 49.2 de Procedimiento Civil,
supra, debe “ser interpretada liberalmente y cualquier duda debe
ser resuelta a favor de la parte que solicita que se deje sin efecto la
sentencia”. [CITATION], 625 (2004). Véase,
también, [CITATION]. El aludido
precepto reglamentario provee un justo balance entre dos intereses KLCE202400410
conflictivos de nuestro ordenamiento jurídico. Por una parte, aspira
a “que todo caso se resuelva justamente, mientras que por otro lado
[SEGMENT 9]
se encuentra el interés de que los litigios concluyan.” [CITATION]
Ahora bien, el reconocimiento de esta acción no es una llave
maestra para dejar sin efecto sentencias válidamente dictadas.
[CITATION] La concesión del relevo de sentencia es un
asunto altamente discrecional, por lo que es necesario demostrar
que existen razones que justifican el remedio solicitado. [CITATION] En tales casos, se requiere del
promovente una demostración por preponderancia de la prueba de
hechos justifican la moción. a J. A. Cuevas Segarra, Tratado de
derecho procesal civil, 2da ed., San Juan, Pubs. JTS, 2011, T. III,
pág. 1409. Por tanto, este remedio no está disponible para
corregir errores de derecho o errores de apreciación o
valoración de la prueba que debieron presentarse a través de un
recurso de revisión apelativa o reconsideración. [CITATION] (Énfasis suplido).
El promovente de la solicitud de relevo de sentencia deberá
presentarla “dentro de un término razonable, pero en ningún caso
después de transcurridos seis (6) meses de haberse registrado la
sentencia”. Regla 49.2 de Procedimiento Civil, supra. No obstante,
“si una sentencia es nula, la parte promovedora de una moción de
relevo de sentencia no está limitada por el término de seis meses
expuesto”. [CITATION]
En ese sentido, una sentencia reviste nulidad cuando se ha
dictado sin jurisdicción o cuando al dictarla se ha quebrantado el KLCE202400410
debido proceso de ley. [CITATION], supra, pág.
543; [CITATION], supra, pág. 688. En torno al
debido proceso de ley, el profesor Rafael Hernández Colón explica
que “pueden haber tantas manifestaciones del mismo como
principios del debido proceso existen y que se hayan quebrantado
en un caso en especial”. [CITATION], pág.
544 (citando a R. Hernández Colón, Práctica jurídica de Puerto Rico:
derecho procesal civil, 4ta ed., San Juan, Ed. LexisNexis, 2007, Sec.
4803, pág. 355). A manera de ilustración, la ausencia de una parte
indispensable constituye una violación al debido proceso de ley, que
conlleva obligatoriamente el relevo de la sentencia. [CITATION], supra, pág. 699; [CITATION], supra,
pág. 561. Ante circunstancias de tal naturaleza, la sentencia “se
tiene por inexistente, por lo que no surte efecto alguno”. [CITATION].
Por otro lado, el mecanismo de reapertura dispuesto en la
Regla 49.2 de Procedimiento Civil, supra, no configura un remedio
“para reabrir a capricho el pleito ya adjudicado”. [CITATION], supra, pág. 448. Por tanto, el relevo de sentencia no
debe emplearse a los fines de extender indirectamente el término
para recurrir al foro apelativo, toda vez que tal proceder “atenta
contra la estabilidad y certeza de los procedimientos judiciales”.
[CITATION].
D. La doctrina de la ley del caso
La doctrina de la ley del caso postula que, como norma
general, un tribunal debe seguir sus decisiones en casos posteriores.
[CITATION]. Lo anterior
implica que los derechos y las obligaciones adjudicados en el ámbito
judicial, mediante dictamen firme, constituyen la ley del caso. [CITATION]. Además, “los KLCE202400410
planteamientos que han sido objeto de adjudicación por el foro de
instancia o por este Tribunal no pueden reexaminarse”. [CITATION].
Así pues, una determinación judicial adquiere el carácter de
ley del caso al advenir una decisión final en los méritos de la
cuestión considerada y decidida. [CITATION]. Por tanto, esa
determinación obliga tanto al tribunal de instancia como a que las
dictó, si el caso vuelve ante su consideración. [CITATION].
Ahora bien, la doctrina de la ley del caso opera al servicio de
la justicia, por lo que, “no es férrea ni de aplicación absoluta”. [CITATION]. Véase, también,
[CITATION]. En efecto, si el
caso retorna al tribunal mediante los mecanismos apropiados, y este
entiende que sus determinaciones previas son erróneas y que
podrían causar una grave injusticia, puede aplicar una norma de
derecho distinta y así resolver de forma justa. [CITATION].
Por consiguiente, cuando se presenta un atentado contra los
principios básicos de la justicia, los tribunales pueden descartar la
aplicabilidad de la doctrina de la ley del caso. [CITATION]. De lo contrario, nos corresponde resistirnos
a reexaminar asuntos ya considerados dentro de un mismo caso en
aras de salvaguardar el trámite ordenado y expedito de los litigios,
así como promover la estabilidad y la certeza de derechos. [CITATION]. Véase,
también, [CITATION]. KLCE202400410
III.
En el caso presente, In-Servicio alega que incidió el Tribunal
de Primera Instancia al mantener la anotación de rebeldía, a pesar
de que el dictamen emitido el 20 de diciembre de 2023 por el
[CITATION] decretó la nulidad de Sentencia de
conformidad a la Regla 49.2 de Procedimiento Civil, supra. En
particular, contiende que a raíz de la aludida determinación
apelativa le correspondía al demandante presentar un nuevo caso
contra todas las partes. Argumenta, además, que es imposible que
In-Servicio responda a la demanda, pues al momento de los hechos
objeto de la reclamación, la entidad compareciente no había sido
formalizada ante el Departamento de Estado.
Por su parte, el señor Jordán Ortiz argumentó la Sentencia del
emitida por el [CITATION] no dejó sin efecto la
anotación de rebeldía impuesta contra In-Servicio. Aseveró que el
dictamen apelativo resolvió únicamente que el Consejo no fue
emplazado conforme a derecho. No obstante, alegó que la parte
peticionaria sí fue debidamente emplazada, pero nunca contestó la
demanda ni mostró interés en el pleito hasta después de emitida la
Sentencia original. Advirtió, a su vez, que nunca solicitó el
levantamiento de rebeldía. En vista de ello, razonó que la Orden de
anotación de rebeldía constituye ley del caso.
Tras evaluar detenidamente el expediente ante nuestra
consideración, así como el marco legal aplicable a la controversia,
resulta forzoso concluir que la determinación de anotación de
rebeldía es una determinación final y firme, y por consiguiente,
procede confirmar el dictamen recurrido. Veamos.
Una mirada sosegada del tracto procesal nos permite
corroborar que In-Servicio no compareció dentro del término exigido
para someter su contestación a la demanda original o presentar una KLCE202400410
moción dispositiva. Cabe destacar que, acogió tal proceder, a pesar
de haber sido emplazado oportunamente. En vista de ello, el 13 de
octubre de 2022, el tribunal recurrido le impuso una anotación de
rebeldía. Sin embargo, no surge del expediente que haya impugnado
tal anotación al amparo de la [CITATION],
supra, la [CITATION], supra, o la [CITATION],
supra.
Eventualmente, el 23 de febrero de 2023, el foro primario
dictaminó Sentencia en contra de In-Servicio y Consejo, notificada
el 27 de febrero de 2023, en la cual determinó la imposición de
responsabilidad extracontractual por los daños producidos durante
la remodelación del apartamento del señor Jordán Rivera. En
desacuerdo, la parte peticionaria presentó una Moción Urgente de
Reconsideración y/o Solicitando Relevo de Sentencia u Órdenes y
Otros Asuntos. El tribunal sentenciador declaró No Ha Lugar dicha
solicitud. Por tanto, In-Servicio solicitó revisión apelativa.
Consolidado su recurso con el caso del Consejo, el 20 de diciembre
de 2023, esta Curia emitió el siguiente pronunciamiento:
Es evidente, por tanto, que la declaración jurada del
emplazador, más bien demostró la deficiencia del
diligenciamiento, por lo que no ameritaba un
emplazamiento por edicto. En consecuencia, por el
Consejo de Titulares no haber sido emplazado según es
su derecho, la Sentencia dictada por el Tribunal de
Primera Instancia es inválida, ergo nula, con la
consecuencia de no tener efecto jurídico alguno con
respecto a los afectados por la misma que surgen de los
casos [CITATION] y [CITATION].
Nótese que el precitado dictamen apelativo conllevó que se
dejara sin efecto la Sentencia dictada en rebeldía, cuya disposición
imponía responsabilidad extracontractual contra los
[SEGMENT 10]
codemandados. Sin embargo, la aludida determinación no
implicó el automático levantamiento de los procedimientos
previos relacionados con In-Servicio. (Énfasis suplido). KLCE202400410
Conviene señalar que la Regla 49.2 de Procedimiento Civil,
supra, provee un mecanismo para relevar de los efectos tanto de
sentencias como de órdenes y procedimientos siempre y cuando
existan los fundamentos legales. Véase, [CITATION]. De igual modo, la precitada regla permite
conocer de un pleito independiente con el propósito de relevar a una
parte de una sentencia, orden o procedimiento, o conceder un
remedio a una parte que en realidad no hubiere sido emplazada. [CITATION]. No obstante, el relevo
de sentencia no constituye un mecanismo irrestricto. A la luz de lo
anterior, puntualizamos que el relevo concedido en virtud de
nuestra anterior sentencia apelativa no equivale a un relevo
automático de todo procedimiento dictado con anterioridad a la
Sentencia del TPI.
Ciertamente, el efecto del dictamen apelativo emitido el 20 de
diciembre de 2023 resulta aplicable a In-Servicio. Sin embargo, ello
no implica que todo dictamen previo a nuestra Sentencia apelativa
sea inexistente o nulo. En particular, enfatizamos que la anotación
de rebeldía emitida el 13 octubre de 2022 y notificada al día
siguiente, constituye una decisión final debidamente considerada y
adjudicada.
A su vez, destacamos que evaluamos los argumentos de la
parte peticionaria, sin embargo, no identificamos fundamentos
jurídicos para levantar la anotación de rebeldía al amparo de la
Regla 49.2 de Procedimiento Civil, supra. Nuestras facultades
revisoras no se extienden a tal grado que nos permitan dejar sin
efecto la Orden de anotación de rebeldía impuesta en su contra sin
que medie fundamento jurídico meritorio a tales fines. In-Servicio
no puede litigar lo adjudicado o presentar señalamientos que debió
exponer en su escrito reconsideración o revisión apelativa. KLCE202400410
Recordemos, pues, que este indicó que fue emplazado el 9 de agosto
de 2022. Por tanto, le correspondía atender oportunamente la
reclamación instada en su contra para evitar que el foro primario le
impusiera la anotación de rebeldía. Ante tales circunstancias, le
compete diligentemente presentar la contestación a la demanda
enmendada.
Por último, advertimos que el trámite ordinario a los fines
iniciar el caso solo resulta aplicable para Consejo, quien no fue
debidamente emplazado tal como resolvimos en la Sentencia
consolidada. Ante la falta de jurisdicción de esta parte, todo trámite
dictado en su contra es inexistente. Sin embargo, resaltamos que en
cuanto a In-Servicio, consta en el expediente apelativo el proyecto
de emplazamiento debidamente diligenciado. En tal escenario, no
advertimos espacio para requerirle al demandante volver a emplazar
a In-Servicio. Tal exigencia contravendría con nuestro principio
procesal que favorece la solución justa, rápida y económica de todo
procedimiento. Véase, [CITATION].
En vista de lo anterior, resolvemos que el tribunal recurrido
actuó conforme a derecho al mantener la anotación de rebeldía y
exigirle a la parte peticionaria presentar su contestación a la
demanda enmendada sin admitir prórroga. La determinación
recurrida descansa en la discreción judicial, por lo que, merece
nuestra deferencia. Ante la ausencia de error manifiesto, abuso de
discreción, prejuicio o parcialidad, nos abstenemos de intervenir en
la determinación recurrida.
IV.
Por los fundamentos que anteceden, expedimos el auto de
certiorari y confirmamos el dictamen recurrido. It appears that in the provided part of the court ruling, there are no court ruling citations to be replaced. The given text contains only elements such as reference numbers and official statements, without any identifiable court ruling citations.
Here is the text in its original form as no changes were required:
KLCE202400410
Lo acordó y manda el Tribunal, y lo certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL VII
ROLAND RENATO APELACIÓN
MANARIN Procedente del
Tribunal de Primera
Apelado Instancia, Sala de
San Juan
v. [CITATION]
Civil núm.:
JORGE L. MONTES SJ2023CV00215
MELENDEZ POR SI Y (603)
COMO
COADMINISTRADOR DE Sobre:
LA SOCIEDAD LEGAL DE COBRO DE
BIENES GANANCIALES DINERO
CONSTITUIDA CON ORDINARIO
ELVIRA E. MONTES
GARCIA Y OTROS
Apelante
Panel integrado por su presidenta la juez Domínguez Irizarry, la juez
Grana Martínez y el juez Pérez Ocasio
Pérez Ocasio, juez ponente
SENTENCIA
En San Juan, Puerto Rico, a 10 de mayo de 2024.
Comparece ante nos, Jorge Montes Meléndez y Elvira Montes
García y la Sociedad de Gananciales compuesta por ambos, en
adelante la parte apelante o matrimonio Montes-Montes. La parte
apelante nos solicita que revoquemos una “Sentencia” notificada el
2 de noviembre de 2023 por el Tribunal de Primera Instancia, Sala
de San Juan, en adelante Foro Primario o TPI-San Juan. En dicha
sentencia el Tribunal declaró “Con Lugar” la “Demanda” sobre Cobro
de Dinero.
Examinado el recurso presentado, así como el derecho
aplicable y la transcripción de la vista, confirmamos la Sentencia en
Rebeldía del 2 de noviembre de 2023.
Número Identificador
SEN2024___________________ KLAN202301159
I.
La situación de hechos que nos ocupan son los siguientes.
Renato Manarin contrató a Montes Meléndez en su gestión
profesional como corredor de bienes raíces para que administrara el
arrendamiento a corto plazo de una propiedad inmueble.[CITATION] Ante el
incumplimiento laboral de Montes Meléndez, este incurrió en
deudas por concepto de rentas y emitió un Pagaré a Renato Manarin
o a su orden, por la suma de $46,538.04 de principal.[CITATION] Así también,
acordaron que devengaba interés del 10% hasta su total pago o
durante cualquier período de incumplimiento, mora o falta de pago
y aún después de su presentación o vencimiento.[CITATION]
Suscrito el instrumento ante el Notario Milton Portalatín
Pérez, los apelantes también prometieron que en caso de
incumplimiento pagarían una suma líquida adicional de $4,653.80.[CITATION]
Las partes habían acordado la fecha y lugar de pago.[CITATION] Así las cosas,
el apelado alega que Montes Mélendez no realizó pago alguno, por lo
que la deuda se volvió líquida, vencida y exigible.[CITATION]
Tras varios incidentes procesales entre las partes, el 12 de
enero de 2023, Renato Manarin presentó una demanda por Cobro
de Dinero bajo el proceso ordinario contra el matrimonio Montes
Montes.[CITATION] Ante la dificultad de emplazar a Montes Meléndez, Renato
Manarin solicitó realizar el emplazamiento por edicto.[CITATION] El 31 de
enero de 2023, a solicitud de Renato Manarin, el Foro Primario
emitió una “Orden” de Aseguramiento de Sentencia.[CITATION]
Posteriormente, el edicto fue publicado el 21 de marzo de 2023.[CITATION] El
====== End of Part ====== KLAN202301159
plazo restante para presentar una alegación responsiva por el
matrimonio Montes Montes expiraba el 20 de abril de 2023.[CITATION] Ese
día, Montes Meléndez presentó una moción solicitando término
adicional para completar acuerdo entre las partes.[CITATION] No obstante, el
matrimonio Montes Montes no presentó alegación responsiva, por lo
que Renato Manarin solicitó que se anotara la rebeldía de
conformidad con las Reglas de Procedimiento Civil, [CITATION]
Según surge del expediente de autos, el matrimonio Montes
Montes presentó contestación a la demanda el 18 de mayo de
2023.[CITATION] No obstante, mediante orden, el TPI- San Juan solo aceptó
la contestación de la demanda en cuanto a Montes Meléndez.[CITATION]
Respecto a Montes García la declaró en rebeldía, toda vez que ésta
fue emplazada personalmente el 27 de enero de 2023, y sin haber
presentado alegación responsiva dentro del término dispuesto en las
Reglas de Procedimiento Civil, supra.[CITATION]
[SEGMENT 11]
Trabada la controversia entre las partes, Renato Manarin
comenzó el proceso de descubrimiento de prueba.[CITATION] El matrimonio
Montes Montes presentó una moción solicitando paralización de los
procedimientos y prórroga para el descubrimiento de prueba,
incluyendo oportunidad para contratar representación legal, toda
vez que se encontraba en estado de indefensión por ser una persona
lega en materia de derecho.[CITATION] Ante la solicitud, el Foro a quo denegó
la paralización y la prórroga solicitada por el matrimonio Montes
Montes.[CITATION] Así mismo, denegó la solicitud de levantar la rebeldía por
[CITATION]
====== End of Part of a Court Ruling ====== KLAN202301159
no haber establecido justa causa para ello y le apercibió a
comparecer con representación legal. [CITATION]
Posteriormente, el Foro Primario impuso sanciones, se dio por
admitido el descubrimiento de prueba, eliminó las alegaciones y se
anotó rebeldía a Montes Meléndez conforme las Reglas de
Procedimiento Civil, supra. [CITATION]
Así las cosas, el 26 de octubre de 2023, se celebró la Vista en
su Fondo en rebeldía. [CITATION] Según surge de la Transcripción de la Vista,
tras la anotación de rebeldía, el tribunal instruyó a las partes sobre
los derechos de una parte demandada en rebeldía. [CITATION] Estos incluyen,
como parte de su debido proceso de ley, contrainterrogar e impugnar
la cuantía, siendo esta la razón por la cual los apelantes continuaron
alegando unas cantidades que -a su parecer- debían deducirse de la
deuda. Entre esas cantidades se incluía la cantidad de $28,600.00
que el propio apelado reconoció. [CITATION] Sobre esa cuantía, producto de la
venta de un inmueble gestionada por el apelante, la evidencia en
autos demuestra que la misma fue debidamente reducida. [CITATION]
Eventualmente, el Foro Primario dictó “Sentencia” el 1 de
noviembre de 2023, declarando “Ha Lugar” la demanda. [CITATION] El 14 de
noviembre de 2023 el matrimonio Montes Montes presentó una
“Moción de Reconsideración” al amparo de la Regla 47 de
Procedimiento Civil, 32 LPRA, Ap. V, R. 47. [CITATION] El 29 de noviembre de
2023 fue notificada una “Resolución” del TPI- San Juan denegando
la moción de reconsideración. [CITATION] KLAN202301159
Inconforme con el proceder del Foro Primario, la parte
apelante acudió ante este Foro el 28 de diciembre de 2023, y en su
recurso de “Apelación”, le imputa al TPI-San Juan los siguientes
señalamientos de error:
PRIMERO: ERRÓ EL HONORABLE TRIBUNAL DE
PRIMERA INSTANCIA AL DECLARAR CON LUGAR
LA DEMANDA DE EPÍGRAFE EXISTIENDO
EVIDENCIA CONTUNDENTE DE LA FIGURA DE
COMPENSACIÓN EN ESTE CASO Y COMO TAL EL
DEMANDADO NADA DEBE.
SEGUNDO: ERRÓ EL TRIBUNAL AL LLEVAR A
CABO LA VISTA EN SU FONDO, A PESAR DE QUE
EL DEMANDADO HABÍA PRESENTADO DENTRO
DEL PLAZO CORRESPONDIENTE UN
DESCUBRIMIENTO DE PRUEBA QUE NO HABÍA
SIDO CONTESTADO Y QUE ERA VITAL PARA SU
DEFENSA.
La parte apelada compareció el 11 de enero de 2024 con una
“Moción de Desestimación”, a la que se opuso la parte apelante el 29
de enero de 2024. Este Foro declaró ambos petitorios “No Ha Lugar”,
mediante “Resolución” el 2 de febrero de 2024. Además, concedió a
la parte apelada un término de diez (10) días para presentar su
alegato en oposición. En cumplimiento de orden, la parte apelada
presentó su “Alegato en Oposición” el 12 de febrero de 2024. Por otro
lado, mediante moción, la parte apelante solicitó la autorización de
este Tribunal para presentar la transcripción de prueba oral, la cual
fue declarada “Ha Lugar” el 23 de febrero de 2023. En cumplimiento
de orden, la parte apelante sometió ante esta Curia la “Transcripción
de Vista en Rebeldía y Juicio en su Fondo del 26 de octubre de 2023”,
el día 18 de marzo de 2024. Con el beneficio de la comparecencia de
ambas partes, y la transcripción de la prueba oral, procedemos a
resolver. KLAN202301159
II.
A. Apelación
Las Reglas de Procedimiento Civil, supra, se desenvuelven en
un orden lógico, natural y armonioso entre sí. Este orden queda
demostrado en las distintas etapas de un litigio, entiéndase las
alegaciones, mociones, descubrimiento, vista evidenciaria,
sentencia, reconsideración, apelación, y sus efectos escalonados.
Cada etapa se sirve de la anterior y se proyecta, entonces, para la
próxima. [CITATION]
La etapa de la apelación se perfecciona con la presentación
oportuna de un escrito conforme a las formalidades establecidas en
nuestro estado de derecho, que incluye su debida notificación a las
partes. El recurso de apelación es aquel que se presenta ante un
foro de mayor jerarquía cuando se solicita la revisión de una
sentencia, o un dictamen final, emitido por el Foro de Primera
Instancia. Regla 52.1 y 52.2 de Procedimiento Civil, 32 LPRA, Ap.
VIII, R. 52; [CITATION] Véase R. Hernández Colón, Práctica Jurídica de
Puerto Rico: Derecho Procesal Civil, 6ta Ed., San Juan, Ed. Lexis
Nexis, 2017, pág. 519.
La apelación no es un recurso discrecional como en los casos
de certiorari. Una vez se cumpla con los requisitos jurisdiccionales y
de perfeccionamiento del recurso, el Tribunal de Apelaciones viene
obligado a atender el asunto y resolverlo en sus méritos, de forma
fundamentada. [CITATION] En ese sentido, se reconoce que existe el derecho
estatutario para acudir en apelación ante el Tribunal de
Apelaciones, cuestionando toda sentencia final emitida por el
Tribunal de Primera Instancia. [CITATION] KLAN202301159
Al revisar una determinación de un foro de menor jerarquía,
los tribunales revisores tenemos la tarea principal de auscultar si se
aplicó correctamente el derecho a los hechos particulares del
caso. Como regla general, los foros apelativos no tenemos facultad
para sustituir las determinaciones de hechos del tribunal de
instancia con nuestras propias apreciaciones. [CITATION]. De manera que, si la
actuación del tribunal no está desprovista de base razonable, ni
perjudica los derechos sustanciales de una parte, debe prevalecer el
criterio del juez de instancia a quien corresponde la dirección del
proceso. [CITATION].
B. Prueba oral y quantum de prueba
Con relación a la prueba oral en las revisiones judiciales, y la
norma de corrección que cobija las determinaciones realizadas por
el Foro Primario, nuestro Tribunal Supremo ya se ha expresado en
[CITATION]. Se ha
establecido que cuando una parte señala errores dirigidos a
cuestionar la apreciación o suficiencia de la prueba, la naturaleza
del derecho apelativo requiere que éste ubique al foro revisor en
tiempo y espacio de lo ocurrido en el foro primario. Para esto debe
utilizar alguno de los mecanismos de recopilación de prueba oral,
como lo son:
(1) transcripción de la prueba,
(2) exposición estipulada o
(3) exposición narrativa.
[CITATION], supra.
De igual forma, la Regla 19 del Reglamento del Tribunal de
Apelaciones, supra, expresamente dispone que “cuando la parte
apelante haya señalado algún error relacionado con la suficiencia de KLAN202301159
la prueba testifical o con la apreciación errónea de ésta por parte del
tribunal apelado, someterá una transcripción, una exposición
estipulada o una exposición narrativa de la prueba. [CITATION]
supra, págs. 655 y 671. [CITATION].
Es sabido, y así lo reconoce nuestro ordenamiento jurídico,
que los tribunales de mayor jerarquía no pueden cumplir a
cabalidad su función revisora sin que se le produzca, mediante
alguno de estos mecanismos, la prueba que tuvo ante sí el foro
primario. [CITATION] pág. 671. El Máximo Foro Judicial local ha reiterado
en múltiples ocasiones que las disposiciones reglamentarias que
gobiernan los recursos que se presentan ante el Tribunal de
[SEGMENT 12]
Apelaciones deben observarse rigurosamente. [CITATION] págs. 671-672.
C. Rebeldía
La rebeldía no es otra cosa que “la posición procesal en que se
coloca la parte que ha dejado de ejercitar su derecho a defenderse o
de cumplir con su deber procesal”. [CITATION],
2023 TSPR 110, 212 DPR ___ (2023); [CITATION]. Tiene como propósito el disuadir a
una parte a dilatar los procedimientos como una estrategia de
litigación. [CITATION].
Por otro lado, la Regla 45.1 de Procedimiento Civil, supra,
detalla los asuntos concernientes con la anotación de rebeldía, a
saber, expresa que:
Cuando una parte contra la cual se solicite una
sentencia que concede un remedio afirmativo haya
dejado de presentar alegaciones o de defenderse en otra
forma según se dispone en estas reglas, y este hecho se
pruebe mediante una declaración jurada o de otro
modo, el secretario anotará su rebeldía. KLAN202301159
El tribunal a iniciativa propia o a moción de parte,
podrá anotar la rebeldía a cualquier parte conforme a la
Regla 34.3 (b) (3).
Dicha anotación tendrá el efecto de que se den por
admitidas las aseveraciones de las alegaciones
afirmativas, sujeto a lo dispuesto en la Regla 45.2 (b).
La omisión de anotar la rebeldía no afectará la validez
de una sentencia dictada en rebeldía.
[CITATION]
Procede la anotación de rebeldía cuando el demandado no
cumple con el requisito de comparecer a contestar la demanda u
ofrecer una defensa a su favor, por lo que este no presenta alegación
alguna contra las alegaciones hechas por el demandante o contra el
remedio solicitado por este. [CITATION]. Álamo v.
Supermercado Grande, Inc., [CITATION]; Véase, R.
Hernández Colón, Práctica Jurídica de Puerto Rico, Derecho Procesal
Civil, 6ta Ed. San Juan, Ed. Lexis Nexis, 2017, p. 328.
También procede una anotación de rebeldía contra una
parte que se negó a descubrir su prueba luego de que se le
requiriera hacerlo, o que incumplió con algún mandato del
tribunal, lo que motiva a este, por solicitud del demandante
o motu proprio, a imponerle la rebeldía como sanción. [CITATION], citando a Álamo v.
Supermercado Grande, Inc., supra; [CITATION].
Una anotación en rebeldía provoca que se dan por admitidos
todos los hechos bien alegados en la demanda. Además, tiene el
efecto de autorizar al Foro Primario para que dicte sentencia, si es ```plaintext
KLAN202301159
eso lo que procede en derecho. [CITATION],
supra; [CITATION], supra, pág. 598.
Sobre los derechos de una parte en rebeldía el Tribunal
Supremo, en varias ocasiones, ha reiterado que le asiste el derecho
a conocer del señalamiento, asistir a la vista, contrainterrogar los
testigos de la parte demandante, impugnar la cuantía y apelar la
sentencia. [CITATION],
Marina, 106 DPR 809, 817 (1978).
D. Los Instrumentos Negociables y el Pagaré
En Puerto Rico, la primera ley adoptada para regular el
derecho cambiario provino del Código de Comercio español de
1889. [CITATION]. No fue
hasta el 1930 que el antiguo Código de Comercio fue enmendado
por la Ley Uniforme de Instrumentos Negociables de Puerto Rico.
[CITATION].
Esto se hizo para atemperarla a la nueva legislación del modelo
estadounidense, la entonces Negotiable Instruments Law (NIL),
promulgada por el National Conference of Commissioners on
Uniform State Laws en 1896. [CITATION].
Posteriormente, y a partir del año 1952, la American Law Institute
(ALI) y la American Bar Association (ABA), promulgaron el famoso
Uniform Commercial Code (UCC) con el propósito de corregir
lagunas y defectos en la redacción de la legislación anterior y
unificar otros aspectos del derecho mercantil. De igual forma, la
llegada del UCC inició un movimiento de uniformidad jurídica en
Estados Unidos, y hoy es la legislación modelo más extensa que se
ha promulgado. Id. en las págs. 88-89.
``` KLAN202301159
Eventualmente, en el año 1995, la Legislatura de Puerto Rico
aprobó la entonces Ley de Instrumentos Negociables y
Transacciones Bancarias, Ley Núm. 208 del 17 de agosto de 1995,
19 LPRA sec. 401, adoptando casi ad verbatim las disposiciones del
UCC con el fin de colocarnos en paridad cambiaria con los demás
estados de la nación norteamericana, que en su mayoría había
adoptado el UCC. Dicha ley ha sido objeto de múltiples enmiendas,
entre las cuales está la actualización de su nombre a Ley de
Transacciones Comerciales, en adelante, LTC. [CITATION]
Esta rama del Derecho que regula el tráfico de instrumentos
negociables se conoce comúnmente como el derecho cambiario. En
general, los instrumentos negociables son documentos de crédito
que le confieren a su titular el derecho a recibir un pago o
contraprestación a cambio de su transmisión. Su utilidad estriba en
que sirven como método de pago alterno a la moneda de curso legal
o al dinero en efectivo, por lo que su uso se ha proliferado para
facilitar la compraventa de mercancías y otras transacciones
comerciales. [CITATION]
La LTC supra, sec. 2-104 (a), 19 LPRA 504(a),
define instrumento negociable como una promesa o una orden
incondicional de pago de una cantidad específica de dinero, con o
sin intereses u otros cargos descritos en la promesa u orden, si este:
(1) es pagadero al portador o a la orden al momento de su
emisión o cuando lo posee primeramente su tenedor;
(2) es pagadero a la presentación o en una fecha específica,
y
(3) no especifica otro compromiso o instrucción por parte de
la persona que promete u ordena el pago que no sea el pago
del dinero.
En términos generales, los instrumentos negociables son
documentos escritos que prueban la existencia de una deuda, pero KLAN202301159
que pueden cambiar de mano en mano como un tipo de moneda
alterna. Es decir, que tienen la cualidad de ser negociados y, por lo
tanto, transferidos a un tercero que no fuere parte de la transacción
original.29
Existen dos clases de instrumentos negociables. La promesa,
mejor conocida como el pagaré, y la orden, también conocida como
letra de cambio o giro. De manera que todos los instrumentos
negociables son modalidades del pagaré o de la letra de cambio.30
Sobre el pagaré, la sección 2-104 inciso (e) de la LTC, supra,
establece que un instrumento negociable es un pagaré cuando en
este hay un compromiso escrito de pagar el dinero suscrito por la
persona que se obliga. Es decir, es un documento de crédito que
confiere a su titular el derecho a recibir un pago o contraprestación
a cambio de su transmisión. [CITATION], supra, pág.
90. De forma resumida, es una promesa de parte del deudor para
pagar una suma cierta de dinero a la orden de persona determinada
o al portador, en una fecha fija o específica o a la presentación. 31
La LTC, supra, en su sección 2-105 inciso (a), 19 LPRA 505(a),
indica que emisión significa la primera entrega de un instrumento
hecha por el firmante o el librador, bien sea a un tenedor o a un no-
tenedor, con el propósito de concederle derechos en el instrumento
a cualquier persona. De manera que, una vez emitido, se obliga el
deudor.
Sobre el otorgamiento del instrumento, tienen derecho a exigir
el cumplimiento el tenedor o una persona que no es tenedor, siempre
que esta última se encuentre en posesión del instrumento, y tenga
los derechos de un tenedor. LTC, supra, sec. 2-301, 19 LPRA 601.
29
L. M. Negrón Portillo y M. Fabián Maldonado, Derecho mercantil y otros principios
generales del derecho puertorriqueño, pág. 194 (1997).
30 Id. pág. 195.
31F. Montañez Miranda, Aspectos legales para los negocios, San Juan, Ed. Situm,
2018, T. I, pág. 252. KLAN202301159
La sección 2-602 de la LTC, [CITATION], establece la forma
[SEGMENT 13]
en la que se realiza un pago en los instrumentos negociables. En
este sentido la ley nos dice que se paga un instrumento en la medida
que se haga el pago:
(i) por o a nombre de la persona obligada a pagar el
instrumento, y
(ii) a una persona con derecho a exigir el
cumplimiento del instrumento. En la medida del
pago hecho, la parte obligada a pagar el
instrumento se releva de su obligación, aunque el
pago se haya hecho con conocimiento de la
existencia de una reclamación contra el
instrumento de parte de otra persona bajo las
disposiciones de la Sección 2-306.
[CITATION] (a)
III.
Por no estar relacionados entre sí, esta Curia ha determinado
atender de manera separada la discusión de los planteamientos de
error.
A.
La parte apelante plantea, como primer señalamiento, que erró
el foro primario al sentenciarle a pagar lo adeudado como resultado
de una promesa de pago que hiciere este a favor del apelado sin
aplicar la figura de la compensación. Luego de cavilar con toda la
documentación y las determinaciones de hecho y de derecho, nos
resulta forzoso concluir que el foro primario no incidió en error alguno
al declarar con lugar la demanda.
Los instrumentos negociables son, sin lugar a duda, de gran
importancia en nuestra vida contemporánea. A manera de ejemplo, KLAN202301159
diariamente se hacen miles de transacciones en Puerto Rico que
envuelven cheques y promesas de pago.32 No ha de extrañarnos,
sabiendo que estos se utilizan como mecanismos alternos al uso de
moneda legal. No obstante, su importancia descansa en la
garantía que brindan sobre la existencia de un crédito o deuda
a favor de su tenedor.
De la transcripción de la vista y la documentación se
desprende que la parte apelante reconoce haber hecho la promesa
de pago al emitir el pagaré a favor del apelado. Aun cuando
argumenta en ocasiones que la parte apelante le adeuda ciertas
cantidades, las mismas no están relacionadas al pagaré en cuestión
-con excepción de la cantidad reconocida por ambas partes por la
suma de $28,600.00 ya acreditados a la deuda.
Adicional a esto, los instrumentos negociables se rigen por la
legislación establecida en la LTC, [CITATION], por lo que nuestro Código
Civil se aplica de manera supletoria en aquello que no cubra la ley
especial. La ley especial prevalecerá sobre el derecho general.
Habiéndose pactado fecha específica para el cumplimiento,
incluso lugar de pago, y no disponiendo acreditación de pagos a un
tercero, no corresponde acreditar a este pagaré esa supuesta deuda
como compensación. La Sección 2-601 de la LTC, [CITATION], sec. 752(a),
establece que se paga un instrumento en la medida que se haga el
pago: (i) por o a nombre de la persona obligada a pagar el
instrumento, y (ii) a una persona con derecho a exigir el
cumplimiento del instrumento.
De modo que, los pagos realizados a un tercero y que en este
pleito no se ha probado que fuera una persona con derecho a exigir
el cumplimiento de este pagaré, no puede acreditarse al mismo. Por
32 [CITATION]. KLAN202301159
lo que actuó correctamente el Foro Primario toda vez que la parte
apelante no probó la inexistencia de la deuda garantizada en pagaré.
B.
Como segundo señalamiento de error, la parte apelante alega
que erró el tribunal al ver la vista en su fondo luego de haber sido
declarada en rebeldía. Aduce que presentó el descubrimiento de
prueba dentro del término correspondiente. No le asiste la razón a
la parte apelante.
En nuestro ordenamiento jurídico, como se ha mencionado en
varias ocasiones, existen diversas etapas dentro de los procesos de
adjudicación en los Tribunales. Cada etapa se sirve de la anterior y
se organiza para la siguiente. Estas etapas, a su vez, se delimitan
dentro de un marco o andamiaje legal de procedimientos y
reglamentos. En conjunto, estas etapas y procedimientos funcionan
de manera que se salvaguarde el debido proceso de ley y los
derechos fundamentales de todas las partes. Del juzgador fallar en
los procedimientos durante alguna etapa, la próxima etapa funciona
para proveer la oportunidad de corregir esos errores.
Para que estas etapas funcionen correctamente es esencial
que se respete a los tribunales y las órdenes que estos emiten. Así
también, el derecho y la administración de la justicia no puede
parcializarse y analizarse desde un solo lado. Es esencial la
aplicación de esas cuestiones discrecionales y flexibles, como la
otorgación de prórrogas con justa causa.
En el caso ante nos, se observó el buen ejercicio de la
discreción del juzgador y la flexibilidad para con una parte que
alegaba estar en búsqueda de representación legal. Lo que no se
observó fue el respeto a las órdenes emitidas por el Foro Primario. KLAN202301159
Del expediente se desprende que se le concedieron, al menos, dos
(2) prórrogas para el descubrimiento de prueba, y la parte apelante
las incumplió y causó dilaciones en los procedimientos.
Así las cosas, y basado en la documentación presentada y la
transcripción de la vista, es deber de este tribunal reconocerle
deferencia al Foro Primario. Declarados en rebeldía por el tribunal,
al amparo de las Reglas de Procedimiento Civil, [CITATION], correspondía
la eliminación de las alegaciones y proceder con la vista en su fondo,
estando en rebeldía.
Una vez en rebeldía, al apelante le asiste el derecho a conocer
del señalamiento, asistir a la vista, contrainterrogar los testigos de
la parte demandante, impugnar la cuantía y apelar la sentencia. Así
las cosas, este Tribunal puede deducir que el foro primario
salvaguardó los derechos de la parte apelante. Se le informó de la
fecha de la vista, a la cual acudió. Se le permitió contrainterrogar a
los testigos y a confrontar la prueba, incluso, ante las objeciones de
la parte apelada, se le brindó deferencia para completar y realizar
las preguntas que formuló. Así como también se le notificó de la
sentencia y su derecho a apelar.
Por todo lo cual, nos resulta inevitable respetar y conceder la
deferencia que amerita brindarle al Foro Primario.
IV.
Por los fundamentos que anteceden, confirmamos la sentencia
apelada.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
LCDA. LILIA M. OQUENDO SOLÍS
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL VII
MIGUEL ÁNGEL Certiorari
FONTÁNEZ GARCÍA procedente del
Y OTROS Tribunal de
Primera Instancia,
Recurrido KLCE202400275 Sala de Humacao
v. Sobre:
Cobro de Dinero
ELIACÍN MOLINA NIEVES Enriquecimiento
Y OTROS Injusto, Fraude y
Daños y Perjuicios
Peticionario
Caso Número:
HU2023CV01093
Panel integrado por su presidenta, la Juez Domínguez Irizarry, la
Juez Grana Martínez y el Juez Pérez Ocasio
Domínguez Irizarry, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 30 de abril de 2024.
La parte peticionaria, Eliacin Molina Nieves (en adelante,
Molina Nieves), su señora esposa, la Sociedad Legal de Gananciales
compuesta por ambos y la compañía JLV Construction, LLC,
comparece ante nos y solicita nuestra intervención para que
dejemos sin efecto una determinación emitida por el Tribunal de
Primera Instancia, Sala de Humacao, el 18 de septiembre de 2023,
notificada el 20 del mismo mes y año. Mediante la misma, el
tribunal primario declaró con lugar una Solicitud de Anotación de
Rebeldía promovida por la parte recurrida, Miguel Ángel Fontánez
García (en adelante, Fontánez García), su esposa, Andrea Suárez, y
la Sociedad Legal de Gananciales habida entre ambos. Ello, dentro
de una acción de cobro de dinero, enriquecimiento injusto y daños,
incoada en contra de los apelantes.
Por los fundamentos que expondremos a continuación, se
expide el auto solicitado y se revoca la Resolución recurrida.
Número Identificador
SEN2024 ________________ KLCE202400275
I
El 31 de julio de 2023, la parte recurrida presentó la demanda
de epígrafe. En esencia, alegó que, por mutuo acuerdo, Fontánez
García y Molina Nieves compraron una máquina de equipo pesado
[SEGMENT 14]
para el movimiento de tierra, conocida como Caterpillar. Indicó que
el costo de la máquina ascendió a ciento veinte mil dólares
($120,000.00), con un canon mensual de mil cien dólares
($1,100.00). Además, detalló que, presuntamente, aportó veinte mil
dólares ($20,000.00) para el pronto del aludido equipo, y le prestó a
la parte peticionaria ocho mil dólares ($8,000.00), con el
compromiso de que la referida cantidad fuese pagada “dentro de seis
meses a la fecha del préstamo”. [CITATION]
Por otro lado, la parte recurrida alegó que llegó a un acuerdo
con la parte peticionaria, mediante el cual Molina Nieves gestionaría
los contratos de proyectos de vivienda y demolición de edificios, y
Fontánez García operaría la referida máquina. Aseveró que Molina
Nieves incumplió con coordinar los aludidos contratos, y continuó
usando el equipo, sin proveerle la debida remuneración. En virtud
de ello, solicitó al tribunal de instancia que condenara a la parte
peticionaria a devolverle el dinero invertido en la referida máquina,
el cual alegadamente ascendía a cuarenta y ocho mil dólares
($48,000.00), y a compensarle por los daños y perjuicios sufridos,
los cuales fueron estimados en setenta y cinco mil dólares
($75,000.00).
El 23 de agosto de 2023, la parte recurrida presentó una
Moción Informativa, en la cual detalló que, el 9 de agosto de 2023,
diligenció los emplazamientos correspondientes.
El 18 de septiembre de 2023, la parte recurrida incoó una
Solicitud de Anotación de Rebeldía, ya que, transcurrido el término
[CITATION] KLCE202400275
reglamentario para contestar la demanda, la parte peticionaria no
había presentado su alegación responsiva.
Ese mismo día, el foro primario emitió una Resolución,
notificada el 20 de septiembre de 2023, mediante la cual le anotó la
rebeldía a la parte peticionaria.
Así las cosas, el 11 de octubre de 2023, la parte peticionaria
presentó una Moción para Asumir Representación Legal y Solicitar
Término para Contestar Demanda. En la misma, le suplicó al
tribunal que le concediera un término de veinte (20) días para
estudiar los expedientes del caso y presentar la contestación a la
demanda.
En reacción, el 14 de noviembre de 2023, la parte recurrida
presentó una Moción Informativa en la cual expresó no tener
objeción con que se le otorgara a la parte peticionaria un término
final para que contestara la demanda. [CITATION]
Examinado el escrito, el foro primario le concedió a la parte
peticionaria un término de cinco (5) días para presentar su posición
en cuanto a lo expresado en la antedicha moción.
Según ordenado, el 21 de noviembre de 2023, la parte
peticionaria presentó Moción en Cumplimiento de Orden, Solicitando
el Relevo de Anotación de Rebeldía y Autorización para Contestar
Demanda. Particularmente, sostuvo que se debía decretar el relevo
de la anotación de rebeldía, puesto que no fue notificada de los
escritos presentados por la parte recurrida, ni de las órdenes del
tribunal, por lo que desconocía que se le había anotado la rebeldía.
Examinados los escritos, el 21 de noviembre de 2023,
notificada el 22 del mismo mes y año, el tribunal primario emitió
una Orden en la cual declaró No Ha Lugar la solicitud de relevo. El
[CITATION] Apéndice del recurso, pág. 27. KLCE202400275
aludido foro precisó que, “desde el 18 de septiembre de 2023, [el]
Tribunal dictó orden y anotó la rebeldía.”3
Inconforme, y luego de denegada una previa solicitud de
reconsideración, el 5 de marzo de 2024, la parte peticionaria
compareció ante nos mediante el presente recurso de certiorari. En
el mismo expone los siguientes señalamientos:
Erró el Tribunal de Primera Instancia al no re-notificar
su Orden sobre Anotación de Rebeldía a la Parte
Recurrente y sostener su validez a pesar de tratarse de
una orden nula por haberse notificado erróneamente.
Erró el Tribunal de Primera Instancia al no relevar a la
parte recurrente de la anotación de rebeldía a tenor con
la Regla 43.5 de las Reglas de Procedimiento Civil de
Puerto Rico.
Luego de examinar el expediente de autos, y con el beneficio
de la comparecencia de ambas partes, procedemos a expresarnos.
II
A
Cónsono con lo estatuido en la Regla 45.1 de las de
Procedimiento Civil, 32 Ap. V, R. 45.1, procede una anotación de
rebeldía cuando una parte contra la cual se ha solicitado una
sentencia que conceda algún remedio afirmativo, deje de presentar
la correspondiente alegación o de defenderse en otra forma.
[CITATION]. En nuestro sistema de ley, la rebeldía se concibe como la
posición procesal que asume aquella parte que, tras ser requerido
judicialmente, opta por no ejercitar su derecho a defenderse. R.
Hernández Colón, Práctica Jurídica de Puerto Rico; Derecho Procesal
Civil, Lexis Nexis de Puerto Rico, Inc., 6ta Edición, 2017, pág.
327.
El remedio dispuesto en la antes aludida Regla opera en dos
situaciones: cuando el demandado no cumple con el requisito de
3 Véase, Entrada 19, Sistema Unificado de Manejo y Administración de Casos
(SUMAC). KLCE202400275
comparecer a contestar la demanda o defenderse, o cuando una de
las partes en un pleito incumple con algún mandato del tribunal, y
este le impone la rebeldía a manera de sanción. [CITATION], supra. [CITATION]. El mismo, además, tendrá como consecuencia
jurídica que se estimen aceptadas todas y cada una de las materias
bien alegadas en la demanda, o aquella formulada contra el rebelde,
y que se autorice al tribunal a dictar sentencia, si esta procede en
derecho. [CITATION].
Por otra parte, los tribunales tienen la facultad de dejar sin
efecto una anotación de rebeldía cuando exista justa causa para
ello. Igualmente, pueden, de conformidad con lo dispuesto en la
Regla 49.2 de Procedimiento Civil, 32 LPRA Ap. V, R. 49.2, dejar sin
efecto una sentencia dictada en rebeldía. Regla 45.3 de
Procedimiento Civil, 32 LPRA Ap. V, R. 45.3.
Ahora bien, la parte que solicita que se deje sin efecto una
anotación de rebeldía, tiene el deber de presentar evidencia de
circunstancias que, a juicio del tribunal, demuestre: justa causa
para la dilación; probar que tiene una buena defensa en sus méritos
y que el grado de perjuicio que pueda ocasionarse a la otra parte es
razonablemente mínimo. [CITATION], pág. 593. No son suficientes escuetas allegaciones o someros
argumentos al respecto. [CITATION].
B
Por su parte, es premisa cardinal en el ordenamiento procesal
vigente que, hasta tanto una sentencia, orden o resolución no es
notificada a todas las partes, el pronunciamiento de que trate no es
vinculante. Como resultado, la falta de notificación tiene el
principal efecto de impedir que los distintos términos que de ella KLCE202400275
dimanan comiencen a decursar. [CITATION]
DPR 172, 183 (2015); [CITATION]
(2003). Arrogarle efecto jurídico a una determinación judicial que
no cumple con el requisito de notificación, lacera la máxima
constitucional que garantiza a los ciudadanos conocer los
fundamentos de una adjudicación sobre la cual ostentan
determinado interés. El deber de notificar a las partes interesadas
en determinada causa no constituye un mero requisito, dado a su
efecto respecto a la idoneidad de los procedimientos posteriores al
dictamen emitido. [CITATION] Ello así, puesto que, el debido proceso de ley exige
proveer a todas las partes plena comprensión de los
pronunciamientos emitidos por los tribunales de justicia, para que
así puedan, de forma oportuna, solicitar los remedios que entiendan
procedentes a su causa. [CITATION]
DPR 245, 254 (2016); [CITATION]
III
En el presente caso, la parte peticionaria sostiene que erró el
[SEGMENT 15]
foro primario al no notificar la Orden mediante la cual le anotó la
rebeldía. Por igual, plantea que el foro de instancia incumplió al no
relevarlo de la referida anotación impuesta.
Tras aplicar la norma antes expuesta a las particularidades
de la causa que nos ocupa, coincidimos en que el foro sentenciador
erró al no dejar sin efecto la anotación de rebeldía de la parte
peticionaria.
Conforme reseñamos, quien solicita que se deje sin efecto una
anotación de rebeldía, debe demostrar: (1) justa causa para la
dilación; (2) probar que tiene una buena defensa en sus méritos, y
(3) que el grado de perjuicio que pueda ocasionarse a la otra parte
es razonablemente mínimo. [CITATION]
supra, pág. 593. KLCE202400275
En el presente caso, la parte peticionaria, demostró que las
notificaciones remitidas fueron notificadas a una dirección
incorrecta. Explicó que las mismas fueron dirigidas al PO Box 6413-
1, Humacao, Puerto Rico 00791, en vez de a HC-03, Box 6413,
Humacao, Puerto Rico 00791.4
Según esbozamos, una orden que no fue notificada
adecuadamente a todas las partes no es vinculante, e impide que
los distintos términos que de ella dimanan comiencen a decursar.
Por ello, es forzoso concluir que la parte peticionaria presentó una
buena defensa en los méritos para justificar el relevo de la anotación
de rebeldía, al demostrar que las notificaciones emitidas, antes de
su comparecencia, fueron defectuosas.
Por otra parte, precisa destacar que el caso de epígrafe se
encuentra en sus etapas iniciales. De modo, es mínimo el perjuicio
que podría causar a la parte recurrida el conceder el relevo de la
rebeldía en cuestión. Además, es menester acentuar que la parte
recurrida manifestó que no tenía objeción con que se le otorgara a
la parte peticionaria un término para que contestara la demanda.
IV
Por los fundamentos que anteceden, se expide el auto
solicitado y se revoca el dictamen recurrido. Por consiguiente, se
deja sin efecto la anotación de rebeldía de la parte peticionaria y se
devuelve el caso al Tribunal de Primera Instancia para que se le
permita a esta presentar su contestación a la demanda.
Lo acordó y manda el Tribunal, y certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
4 Véase, apéndice del recurso, págs. 24-26.
ESTADO LIBRE ASOCIADO DE PUERTO RICO
TRIBUNAL DE APELACIONES
PANEL XI
APELACIÓN
procedente del Tribunal
COOPERATIVA DE de Primera Instancia
AHORRO Y CRÉDITO Sala de Caguas
CIDREÑA
Caso Núm.
APELANTE KLAN202400355 CD2024CV00079
V. Sala:702
TATIANY J. SOSTO
AMARO Sobre:
APELADA COBRO DE DINERO
ORDINARIO
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Alvarez Esnard, y la Jueza Díaz Rivera.
Brignoni Mártir, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 26 de abril de 2024.
Comparece, Cooperativa de Ahorro y Crédito Cidreña (en lo
sucesivo “la parte apelante”). Ello, mediante el recurso de apelación de
epígrafe. Su comparecencia es a los fines de solicitar nuestra intervención
para que dejemos sin efecto la determinación emitida el 1 de abril de
2024 y notificada el 2 de abril de 2024, por el Tribunal de Primera
Instancia, Sala Superior de Caguas. Mediante la referida determinación,
el tribunal de instancia desestimó la “Demanda” presentada contra
Tatiany J. Sosto Amaro (en adelante, “la apelada”). Ello, bajo el
fundamento de que dicha “Demanda” debía ser radicada de conformidad
con dispuesto en la Regla 60 de las Reglas de Procedimiento Civil, [CITATION]
Por los fundamentos que expondremos, revocamos la
determinación recurrida.
I.
El 22 de marzo de 2024, la parte apelante, presentó la “Demanda”
de epígrafe. En esencia alegó, que el 8 de abril de 2024, perfeccionó
Número Identificador
SEN2024 ________ KLAN202400355
junto a la apelada un contrato de préstamo. Adujo, que como parte del
aludido acuerdo le entregó a la apelada la cantidad de $7,154.00. Según
expresó, la apelada se comprometió a pagar dicha cantidad a través de
un pagaré que suscribió a su favor. Así las cosas, arguyó que la apelada
dejó de efectuar los pagos mensuales estipulados. Consecuentemente,
incumplió con el pago de la referida relación contractual. Por lo cual,
según alegó, la apelada adeudada una cantidad vencida, líquida y
exigible de $5,887.29. Expresó, que la aludida cantidad se desglosaba en
lo siguiente: una suma de $5,500.52 en concepto de principal; y una
cantidad de $386.77 en concepto de intereses y recargos acumulados
hasta la fecha del 27 de febrero de 2024. Añadió, que dichos intereses
continuaban acumulándose a razón de un 13.95% anual. También agregó
que los recargos incrementaban a razón de un cinco por ciento (5%) por
cada pago mensual vencido y no satisfecho. En virtud de ello, suplicó al
foro sentenciador que la apelada le pagara lo adeudado; peticionó
$1,100.10 en concepto de costas, gastos y honorarios de abogado; y
solicitó que el pleito fuera dilucidado por la vía ordinaria.
En reacción, el 2 de abril de 2024, el foro sentenciador notificó una
“Sentencia.” Mediante esta, desestimó la “Demanda” presentada, bajo el
fundamento de que esta debía ser radicada de conformidad con dispuesto
en la Regla 60 de las Reglas de Procedimiento Civil, [CITATION]. En desacuerdo, el 4 de abril de 2024, la parte apelante presentó una
“Moción en solicitud de reconsideración de sentencia desestimando la
demanda.” Acto seguido, el 10 de abril de 2024, presentó un escrito
intitulado “Moción informando el retiro del escrito presentado en el
encasillado 4 del expediente judicial, para proceder con el trámite de
apelación.” Mediante este, retiro oportunamente la moción de
reconsideración presentada. Así pues, el 10 de abril de 2024, la parte
apelante, presentó ante nos un “recurso de apelación.” Por medio de este,
esbozó los siguientes señalamientos de error:
PRIMER SEÑALAMIENTO DE ERROR: Erró el TPI al no
aceptar la voluntad de la Parte Demandante, según le KLAN202400355
provee y faculta la Regla 60 de Procedimiento Civil de
presentar la reclamación de cobro de dinero mediante el
procedimiento ordinario.
SEGUNDO SEÑALAMIENTO DE ERROR: Erró el TPI al
desestimar la demanda por esta haber sido presentada
mediante el Procedimiento de Cobro Ordinario y no al
amparo de la Regla 60 de Procedimiento Civil, como
ordenó, aun cuando la propia Regla 60 establece que la
Parte Demandante tiene la facultad para solicitar que se
tramite su caso bajo el procedimiento ordinario.
II.
A. Desestimación de un pleito:
El Tribunal Supremo de Puerto Rico ha enfatizado que es preciso
tener presente, como principio rector, que las Reglas de Procedimiento
Civil no tienen vida propia y solo existen para viabilizar la consecución del
derecho sustantivo de las partes litigantes. [CITATION], 117 DPR 807, 816 (1986). En virtud de ello, los tribunales deberán
hacer un balance equitativo entre los intereses en conflicto, ejerciendo
especial cuidado al interpretar las reglas procesales para que estas
garanticen una solución justa, rápida y económica de las
controversias. [CITATION], 154 DPR 217, 221
(2001); [CITATION], supra.
Cónsono con tales principios, el Tribunal Supremo ha favorecido
[SEGMENT 16]
enfáticamente que los casos se ventilen en los méritos. [CITATION] y
otros, [CITATION], 132 DPR 115, 124 (1992). Así, pues, ha reiterado
que la desestimación de un caso como sanción debe prevalecer
únicamente en situaciones extremas, en las que haya quedado
demostrado, de manera clara e inequívoca, la desatención y el abandono
total de la parte con interés. Y ello, luego de que la imposición de otras
sanciones haya probado ser ineficaz en el orden de administrar justicia y,
en todo caso, no deberá procederse a ella sin un previo
apercibimiento. [CITATION], supra, pág.
====== End of Document ====== KLAN202400355
222; [CITATION] (1962).
La Regla 39.2 (a) de las de Procedimiento Civil de 2009, 32 LPRA
Ap. V R. 39.2 (a), acogió los principios esbozados por el Tribunal
Supremo de Puerto Rico, por lo que dispone como sigue:
(a) Si el demandante dejare de cumplir con estas reglas o
con cualquier orden del tribunal, el tribunal a iniciativa propia
o a solicitud del demandado podrá decretar la desestimación
del pleito o de cualquier reclamación contra él, o la
eliminación de las alegaciones, según corresponda.
Cuando se trate de un primer incumplimiento, la
severa sanción de la desestimación de la demanda o la
eliminación de las alegaciones tan sólo procederá
después que el tribunal, en primer término, haya
apercibido al abogado o abogada de la parte de la
situación y se le haya concedido la oportunidad para
responder. Si el abogado o abogada de la parte no
responde a tal apercibimiento, el tribunal procederá a
imponer sanciones al abogado o abogada de la parte y se
notificará directamente a la parte sobre la situación. Luego
de que la parte haya sido debidamente informada o
apercibida de la situación y de las consecuencias que pueda
tener el que la misma no sea corregida, el tribunal podrá
ordenar la desestimación del pleito o la eliminación de las
alegaciones. El tribunal concederá a la parte un término de
tiempo razonable para corregir la situación que en ningún
caso será menor de treinta (30) días, a menos que las
circunstancias del caso justifiquen que se reduzca el
término. (Énfasis nuestro).
[…]
Así pues, “antes de ordenar la desestimación del pleito o la
eliminación de las alegaciones, el tribunal tiene que ejecutar el orden de
prelación que establece la Regla 39.2(a) de Procedimiento Civil, [supra.]”
[Mitsubishi Motor Sales of Caribbean, Inc. v. Lunor, Inc. y otros, 2023 TSPR 110] [CITATION]. A tales efectos, si la parte apercibida sobre un incumplimiento
no toma una acción correctiva, el tribunal se encontrará en posición para
imponer la sanción correspondiente. Íd. Estas salvaguardas procesales se
han adoptado en nuestro ordenamiento jurídico, para evitar que la
desestimación del pleito sea un remedio que se tome en primera
instancia. Toda vez que, esta implica la muerte procesal del pleito. Íd. ```plaintext
KLAN202400355
B. Reclamaciones en cobro de dinero al amparo de la Regla 60 de las
Reglas de Procedimiento Civil, supra.
En los casos sobre cobro de dinero, existen algunas circunstancias
en las que el promovente de una reclamación tiene la facultad de decidir
si presenta esta por la vía ordinaria o sumaria. A esos efectos, la Regla
60 de las Reglas de Procedimiento Civil, supra, dispone, en lo atinente, lo
siguiente:
Cuando se presente un pleito en cobro de una suma
que no exceda los quince mil (15,000) dólares, excluyendo
los intereses, y no se solicite en la demanda tramitar el
caso bajo el procedimiento ordinario, la parte
demandante deberá presentar un proyecto de notificación-
citación que será expedido inmediatamente por el Secretario
o Secretaria. La parte demandante será responsable de
diligenciar la notificación-citación dentro de un plazo de diez
(10) días de presentada la demanda, incluyendo copia de
ésta, mediante entrega personal conforme a lo dispuesto en
la Regla 4 o por correo certificado. (Énfasis Suplido).
[…]
El propósito cardinal de la Regla 60 de Procedimiento Civil, supra,
estriba en conseguir la agilización y simplificación de los procedimientos
“en acciones de reclamaciones de cuantías pequeñas, para así lograr la
facilitación del acceso a los tribunales y una justicia más rápida, justa y
económica en este tipo de reclamación”. [CITATION]. De esta manera, un demandante
puede someter su reclamación a través de un proceso sumario. En dicho
proceso, contrario al trámite ordinario, las Reglas de Procedimiento Civil
aplican de manera supletoria. [CITATION]. Al ser así, “el emplazamiento por edicto, la contestación a la
demanda, el descubrimiento de prueba, las reconvenciones, la demanda
contra terceros, entre otros, son preceptos incompatibles con esta
herramienta sumaria”. Íd, pág. 108.
De otra parte, además de la facultad inicial que tiene un
demandante de solicitar que una reclamación en cobro de dinero, cuya
cuantía no exceda los $15,000, sea ventilada por la vía ordinaria, ambas
partes pueden peticionar que una reclamación que haya comenzado por
``` KLAN202400355
la vía sumaria pueda dilucidarse por la vía ordinaria. Cónsono con ello, la
Regla 60 de las Reglas de Procedimiento Civil, supra, establece en lo
pertinente lo siguiente:
Si se demuestra al Tribunal que la parte demandada tiene
alguna reclamación sustancial, o en el interés de la justicia,
cualquiera de las partes tendrá derecho a solicitar que el
pleito se continúe tramitando bajo el procedimiento ordinario
prescrito por estas reglas o el Tribunal podrá motu proprio
ordenarlo, sin que sea necesario cancelar la diferencia en
aranceles que correspondan al procedimiento ordinario.
Para la tramitación de un pleito conforme al procedimiento
establecido en esta Regla, la parte demandante debe
conocer y proveer el nombre y la última dirección conocida
de la parte demandada al momento de la presentación de la
acción judicial. De lo contrario, el pleito se tramitará bajo el
procedimiento ordinario.
Conforme la normativa esbozada, nuestro ordenamiento procesal
civil provee varias instancias en las que un pleito puede dilucidarse por la
vía ordinaria. Estas se pueden resumir en las siguientes: (1) cuando la
parte demandada demuestra que tiene una reclamación sustancial; (2)
cuando, en el interés de la justicia, las partes ejercen su derecho de
solicitar que el pleito se continúe ventilando por el trámite civil ordinario;
(3) partiendo de ese mismo interés, el tribunal motu proprio tiene la
discreción para así ordenarlo, y (4) cuando la parte demandante no
conoce ni provee el nombre y la dirección del deudor. [CITATION], pág. 637-638.
III.
En esencia, la parte apelante plantea que incidió el foro
sentenciador al desestimar la “Demanda” presentada, cuando esta fue
radicada según lo dispuesto en la Regla 60 de las Reglas de
Procedimiento Civil, supra. Le asiste la razón. Veamos.
De entrada, conforme fue esbozado nuestro ordenamiento jurídico
permite que los casos de cobro de dinero cuya cuantía no exceda los
$15,000, puedan ser ventilados por la vía ordinaria. Esto, es permisible en
dos (2) etapas del procedimiento judicial. La primera, mediante una
petición efectuada por la parte demandante al presentar su reclamación; y
la segunda, durante el transcurso del pleito. Ello, a instancia de parte o KLAN202400355
del propio tribunal. En el caso ante nuestra consideración, la parte
apelante, expuso debidamente en la “Demanda” una petición a los fines
de que el pleito fuera ventilado bajo el procedimiento ordinario. Dicha
acción cumple cabalmente con los requerimientos de la Regla 60 de
Procedimiento Civil, [CITATION]. Por lo cual, la referida solicitud impedía por sí
sola que se desestimara automáticamente la “Demanda” presentada.
De otra parte, es preciso destacar que nuestro ordenamiento
jurídico favorece que los casos se ventilen en sus méritos, y que la
ciudadanía tenga acceso al foro judicial. A tenor de ello, según fue
expuesto, la desestimación es una acción que debe ser tomada como
[SEGMENT 17]
último recurso. Antes de dictarse una sentencia desestimatoria, el
tribunal, debe apercibir sobre la existencia de algún incumplimiento y las
consecuencias que acarrearía su falta de corrección. Ello, no sucedió en
el presente caso, dado que, el foro sentenciador optó en primera instancia
por desestimar la reclamación incoada. Por tanto, es forzoso concluir que
dicho foro erró al dictar una “Sentencia” desestimatoria. Esto, por la razón
de que dejó de cumplir con el orden de prelación que se concibe previo al
dictamen de desestimación, y por no existir algún incumplimiento de la
parte apelante con lo dispuesto en la Regla 60 de las Reglas de
Procedimiento Civil, [CITATION].
IV.
Por los fundamentos expuestos, revocamos la determinación
recurrida. Consecuentemente, devolvemos el caso para la continuación
de los procedimientos de conformidad a lo aquí dictaminado.
Lo acordó y manda el Tribunal, y lo certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
CARMEN E. MARTÍNEZ CERTIORARI
BARROSO Procedente del
Tribunal de Primera
Recurrida Instancia, Sala de
Bayamón
v. KLCE202400243
Civil Núm.:
EDGAR ÁLVAREZ DEL BY2023RF01952
MANZANO ORTIZ
Sobre: Custodia –
Peticionario Monoparental o
Compartida
Panel integrado por su presidenta, la Juez Brignoni Mártir, el
Juez Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz
Rivera.
Álvarez Esnard, jueza ponente
SENTENCIA
En San Juan, Puerto Rico, a 12 de abril de 2024.
Comparece ante nos el señor Edgar Álvarez del Manzano Ortiz
(“señor Álvarez del Manzano Ortiz” o “Peticionario”) mediante
Recurso de Certiorari presentado el 28 de febrero de 2024. Nos
solicita que revoquemos una Orden emitida y notificada el 4 de enero
de 2024 por el Tribunal de Primera Instancia, Sala Superior de
Bayamón (“foro primario” o “foro a quo”). Mediante la referida
determinación, el foro primario impuso una anotación de rebeldía al
Peticionario. Oportunamente, éste presentó Moción de
Reconsideración de Anotación de Rebeldía. Evaluados sus
argumentos, el 29 de enero de 2024, el foro a quo emitió una
Resolución declarando No Ha Lugar la reconsideración solicitada.
Por los fundamentos expuestos a continuación, expedimos el
auto de certiorari y revocamos el dictamen recurrido.
I.
El 3 de noviembre de 2023, la señora Carmen E. Martínez
Barroso (“señora Martínez Barroso” o “Recurrida”) instó una
Demanda de Custodia, Relaciones Filiales y Alimentos contra el
Número Identificador
SEN(RES)2024____________ KLCE202400243
señor Álvarez del Manzano Ortiz.[CITATION] En síntesis, alegó que es tía de la
menor A.A.D.M., quien se encuentra bajo su cuidado tras el
fallecimiento de su madre. Contextualizó que el padre de ésta
enfrenta un caso por presuntos actos lascivos. Ante tales
circunstancias, solicitó la custodia exclusiva de la menor.
El 4 de diciembre de 2023, un alguacil emplazó
personalmente al Peticionario. En consecuencia, el 27 de diciembre
de 2023, la Recurrida presentó una Moción Sometiendo Documento
en el Sistema Unificado de Manejo y Administración de Casos
(SUMAC).[CITATION] En este documento, acreditó el diligenciamiento del
emplazamiento.
Sin comparecer aún el demandado, el 4 de enero de 2024, el
Tribunal de Primera Instancia emitió una Orden, notificada ese
mismo día, imponiéndole una anotación de rebeldía.[CITATION] Inconforme
con tal dictamen, el 9 de enero de 2024, el Peticionario sometió
una Moción Asumiendo Representación Legal; Moción de
Reconsideración de Anotación de Rebeldía y Solicitando Traslado.[CITATION]
En lo concerniente, especificó que el 4 de diciembre de 2023 fue
emplazado. Señaló que el foro primario emitió la anotación de
rebeldía exactamente el día en que venció el término para presentar
su alegación responsiva. Puntualizó, además, que no ha actuado
con temeridad ni ha abusado de los derechos procesales y
sustantivos que le asisten. A la luz del trámite procesal del caso,
peticionó dejar sin efecto la anotación de rebeldía.
Consecuentemente, el 10 de enero de 2024, el foro primario emitió
una Resolución y Orden, requiriendo a la parte Recurrida presentar
su réplica dentro del término de diez (10) días.[CITATION] KLCE202400243
El 25 de enero de 2024, el Peticionario presentó una Moción
para que Se Dé por Sometida y Declare Con Lugar la Reconsideración
y Ordene el Traslado. Entre otros extremos, señaló que la Recurrida
no cumplió con la Orden, ni presentó prórroga para someter su
respuesta. En vista de lo anterior, nuevamente solicitó dejar sin
efecto la anotación de rebeldía. Tras evaluar sus argumentos, el
29 de enero de 2024, el tribunal recurrido emitió una Resolución,
notificada ese mismo día, declarando No Ha Lugar a la petición de
reconsideración.
Eventualmente, el 6 de febrero de 2024, el Peticionario
presentó una Moción Solicitando Aclaración de Resolución. En
particular, requirió al tribunal especificar cuál de los remedios
solicitados declaró No Ha Lugar. Luego de examinar su solicitud, el
12 de febrero de 2024, el foro a quo emitió una Resolución,
notificada el 13 de febrero de 2024. En ese dictamen, resolvió que
“[l]a determinación del tribunal atiende las solicitudes que surgen
del escrito”.
Insatisfecho aun, el 28 de febrero de 2024, el señor Álvarez
del Manzano Ortiz acudió ante nos mediante un Recurso de
Certiorari. En su escrito, formuló el siguiente señalamiento de error:
ERRÓ EL TPI AL DENEGAR ARBITRARIAMENTE LA
SOLICITUD DE DEJAR SIN EFECTO LA ANOTACIÓN
DE REBELDÍA SIN APLICAR LOS REQUISITOS
ESENCIALES PARA EJERCER LA DISCRECION
JUDICIAL: 1) BUENAS DEFENSAS DEL
PETICIONARIO-DEMANDADO; 2) SI SE OCASIONARÍA
PERJUICIOS; 3) SI HA MEDIADO ÁNIMO CONTUMAZ
O TEMERARIO DEL PETICIONARIO-DEMANDADO.
El 1 de marzo de 2024, esta Curia emitió una Resolución
concediendo a la parte Recurrida un término de diez (10) días para
que se expresara en torno al recurso presentado. Ante el
incumplimiento de la parte Recurrida, procedemos a resolver la
[CITATION] Íd., págs. 18-19.
[CITATION] Íd., pág. 20.
[CITATION] Íd., págs. 21-22.
[CITATION] Íd., pág. 23. KLCE202400243
controversia ante nuestra consideración sin el beneficio de su
comparecencia.
II.
A. Certiorari
“[U]na resolución u orden interlocutoria, distinto a una
sentencia, es revisable mediante certiorari ante el Tribunal de
Apelaciones”. [CITATION] (2019). “El recurso de certiorari es un vehículo procesal discrecional
que permite a un tribunal de mayor jerarquía revisar las
determinaciones de un foro inferior”. [CITATION] resuelto el 8 de mayo de 2023. Véase, además, [CITATION].
La Regla 52.1 de Procedimiento Civil, 32 LPRA Ap. V, R. 52.1,
establece que el recurso de certiorari solo se expedirá cuando se
recurra de (1) una resolución u orden sobre remedios provisionales
o injunction o (2) la denegatoria de una moción de carácter
[SEGMENT 18]
dispositivo. Por excepción, se puede recurrir también de:
(1) decisiones sobre la admisibilidad de testigos o peritos;
(2) asuntos de privilegios; (3) anotaciones de rebeldía; (4) en casos
de relaciones de familia, o (4) en casos que revistan interés público.
Íd. De igual manera, puede revisarse “cualquier otra situación en la
cual esperar a la apelación constituiría un fracaso irremediable de
la justicia”. Íd. Los límites a la facultad revisora del foro apelativo
tienen como propósito evitar la dilación que causaría la revisión
judicial de controversias que pueden esperar a ser planteadas a
través del recurso de apelación. [CITATION] (2019).
No obstante, la discreción del tribunal apelativo en este
aspecto no opera en un vacío ni sin parámetros. [CITATION] (2019). La Regla 40 del KLCE202400243
Reglamento del Tribunal de Apelaciones, 4 LPRA Ap. XXII-B, R. 40,
señala los criterios que se deben tomar en consideración al evaluar
si procede expedir un auto de certiorari. Véase, además, [CITATION].
2023 TSPR 145, resuelto el 19 de diciembre de 2023. Estos criterios
son:
(A) Si el remedio y la disposición de la decisión
recurrida, a diferencia de sus fundamentos, son
contrarios a derecho.
(B) Si la situación de hechos planteada es la más
indicada para el análisis del problema.
(C) Si ha mediado prejuicio, parcialidad o error craso y
manifiesto en la apreciación de la prueba por el
Tribunal de Primera Instancia.
(D) Si el asunto planteado exige consideración más
detenida a la luz de los autos originales, los cuales
deberán ser elevados, o de alegatos más elaborados.
(E) Si la etapa del procedimiento en que se presenta el
caso es la más propicia para su consideración.
(F) Si la expedición del auto o de la orden de mostrar
causa no causan un fraccionamiento indebido del
pleito y una dilación indeseable en la solución final
del litigio.
(G) Si la expedición del auto o de la orden de mostrar
causa evita un fracaso de la justicia.
El Tribunal Supremo ha expresado que la discreción es “una
forma de razonabilidad aplicada al discernimiento judicial para
llegar a una conclusión justiciera”. [CITATION], págs. 712-713. No obstante, “[a]l denegar la
expedición de un recurso de certiorari en estos casos, el Tribunal de
Apelaciones no tiene que fundamentar su decisión”. 32 LPRA Ap. V,
R. 52.1.
B. Discreción judicial
La discreción judicial es el “poder para decidir en una u otra
forma, esto es, para escoger entre uno o varios cursos de acción”.
[CITATION]. Su ejercicio está atado KLCE202400243
inexorablemente al concepto de la razonabilidad. [CITATION]. Ahora bien, la discreción judicial
no es irrestricta. Por tanto, los tribunales no puedan actuar de
una forma u otra en abstracción del resto del derecho. [CITATION].
El ejercicio discrecional es una forma de razonabilidad
aplicada al discernimiento judicial para llegar a una conclusión
justiciera. [CITATION], pág. 339. En ese
sentido, el Tribunal Supremo de Puerto Rico ha resuelto que la
discreción judicial cede:
cuando no toma en cuenta e ignora en la decisión que
emite, sin fundamento para ello, un hecho material
importante que no podía ser pasado por alto; cuando el
juez, por el contrario, sin justificación ni fundamento
alguno, concede gran peso y valor a un hecho
irrelevante e inmaterial y basa su decisión
exclusivamente en éste; o cuando, [...] [tras] considerar
y tomar en cuenta todos los hechos materiales e
importantes y descartar los irrelevantes, el juez los
sopesa y calibra livianamente. [CITATION].
Los escenarios descritos constituyen aquellas circunstancias
“donde la discreción del juzgador de primera instancia no condujo a
una determinación razonable”. [CITATION]. En tales casos, los foros apelativos
ostentamos facultad para revisar aquel error derivado de “la
interpretación o aplicación de cualquier norma procesal o de
derecho sustantivo”. [CITATION].
No obstante, los tribunales revisores no debemos intervenir
en las determinaciones de hechos del tribunal de instancia,
“salvo que se pruebe que dicho foro actuó con prejuicio o parcialidad
o incurrió en craso abuso de discreción o en error manifiesto”.
(Énfasis nuestro). [CITATION]. Véase,
además, [CITATION].
====== End of Document ====== KLCE202400243
C. Anotación de rebeldía
La anotación de rebeldía es un mecanismo procesal que
procura “disuadir a aquellos que recurran a la dilación de los
procedimientos como una estrategia de litigación”. [CITATION]. A esos
efectos, la Regla 45.1 de Procedimiento Civil, 32 LPRA Ap. V, R. 45.1,
delimita los escenarios para ordenar la anotación de rebeldía,
estableciendo lo siguiente:
Cuando una parte contra la cual se solicite una
sentencia que concede un remedio afirmativo haya
dejado de presentar alegaciones o de defenderse en otra
forma según se dispone en estas reglas, y este hecho se
pruebe mediante una declaración jurada o de otro
modo, el Secretario o Secretaria anotará su rebeldía.
El tribunal a iniciativa propia o a moción de parte,
podrá anotar la rebeldía a cualquier parte conforme
a la Regla 34.3(b)(3).
Dicha anotación tendrá el efecto de que se den por
admitidas las aseveraciones de las alegaciones
afirmativas, sujeto a lo dispuesto en la Regla 45.2(b).
La omisión de anotar la rebeldía no afectará la validez
de una sentencia dictada en rebeldía. (Énfasis suplido).
De conformidad con la Regla antes citada, el tribunal puede
ordenar la anotación cuando la parte demandada: (1) no comparece
después de haber sido emplazado, (2) no se defiende mediante
moción (3) ni presenta oportunamente la contestación a la demanda.
[CITATION]. De igual manera, procede la anotación cuando “una de las partes en
el pleito ha incumplido con algún mandato del tribunal, lo que
motiva a éste a imponerle la rebeldía como sanción”. [CITATION].
Una vez el tribunal anota la rebeldía, se dan por admitidos
todos los hechos bien alegados en la demanda o la alegación que se
====== Instruction completed ====== KLCE202400243
haya formulado en contra del rebelde, y se autoriza al tribunal a
dictar sentencia, si esta procede como cuestión de derecho.
[CITATION], supra.
Este mecanismo brinda un remedio coercitivo contra una parte
adversaria a la cual, habiéndosele concedido la oportunidad de
refutar la reclamación, por su pasividad o temeridad opta por no
defenderse. [CITATION].
Ahora bien, los tribunales no son meros autómatas obligados
a conceder indemnizaciones por estar dilucidándose un caso en
rebeldía. [CITATION], supra, pág. 102. La
anotación de rebeldía se debe dar dentro del marco de lo que es
justo, y la ausencia de tal justicia equivaldría a un abuso de
discreción. (Énfasis nuestro). [CITATION], supra, pág. 590. Aunque la rebeldía constituye un
mecanismo procesal discrecional, ésta no se sostendrá ante el
ejercicio burdo o injusto. Íd. (Énfasis nuestro).
Existen diversas vías procesales para dejar sin efecto una
anotación de rebeldía dictada erróneamente. En primer lugar, la
parte interesada puede solicitar el levantamiento de la anotación al
amparo de la Regla 45.1 de Procedimiento Civil, supra. En [CITATION], el Máximo foro delineó la
siguiente interpretación en torno a la aludida regla:
[S]i un codemandado a quien se le anota la rebeldía
por alegadamente no haber contestado en el
término, puede probar que sí había contestado y que
la anotación de la rebeldía en su contra obedeció a
una confusión por parte del Secretario o la
Secretaria ante los múltiples codemandados en el
expediente, su remedio es, de igual manera, solicitar
que se levante la rebeldía por error en la
implementación de la Regla 45.1 de Procedimiento
Civil, supra. Esto es, la parte no dejó de presentar
alegaciones o de defenderse, sino que la anotación
obedeció a un error del tribunal. (Énfasis nuestro).
[SEGMENT 19]
En estos casos, el “fundamento en derecho para lograr tal
levantamiento sería el incumplimiento por parte del promovente con KLCE202400243
la Regla 45.1 de Procedimiento Civil, supra”. Íd. Además, no tiene
que demostrar la existencia de causa justificada. Íd.
De otro lado, la Regla 45.3 de Procedimiento Civil, supra,
R. 45.3, establece que “[e]l tribunal podrá dejar sin efecto una
anotación de rebeldía por causa justificada, y cuando se haya
dictado sentencia en rebeldía, podrá asimismo dejarla sin efecto de
acuerdo con la Regla 49.2”. En tales escenarios, la parte puede
presentar evidencia circunstancial que a juicio del tribunal
justifique la dilación, o se pueda probar que tiene buenas defensas
en sus méritos y que el grado de perjuicio que puede ocasionarse a
la otra parte con relación al proceso es mínimo. J.A. Echevarría
Vargas, Procedimiento Civil Puertorriqueño, 1ra. ed. rev., Colombia,
2012, pág. 287. Véase, además, [CITATION], supra, pág. 593.
La norma imperante favorece que la precitada regla se
interprete de manera liberal. [CITATION], supra, pág. 592. Por lo oneroso y drástico que resulta sobre las
partes demandadas o querelladas un dictamen en rebeldía, el
ordenamiento ha establecido que cualquier duda se deberá
resolver a favor del que solicita que se deje sin efecto la
anotación de rebeldía, a fin de que el caso pueda verse en los
méritos. [CITATION], 99 DPR 805, 811 (1971). Ello, a
su vez, propicia un “enfoque integral, pragmático y creativo” de las
Reglas de Procedimiento Civil. [CITATION], 192 DPR 279, 286 (2015). Consecuentemente, se salvaguarda el
debido proceso de ley de las partes, cuya finalidad permite que las
personas tengan derecho a un proceso justo con todas las garantías
de ley aplicables. [CITATION] resuelto el
22 de diciembre de 2023. KLCE202400243
III.
En el presente caso, el señor Álvarez del Manzano Ortiz
argumenta que incidió el foro primario al imponerle una anotación
en rebeldía. En particular, arguye que erró al no examinar el
comprobante electrónico, cuyo contenido evidencia que su primera
comparecencia quedó registrada el 4 de enero de 2024.10 Ante tales
alegaciones, solicita dejar sin efecto la anotación de rebeldía.
Tras evaluar sosegadamente el expediente ante nuestra
consideración, resolvemos que incidió el Tribunal de Primera
Instancia al ordenar la anotación de rebeldía. El remedio decretado
constituye una medida extrema, contraria al principio que favorece
la solución justa, económica y rápida de los procedimientos. Véase,
Regla 1 de Procedimiento Civil, 32 LPRA Ap. V, R. 1. Además, priva
al Peticionario de su derecho a un día en corte en contravención al
debido proceso de ley.
Surge del expediente que el Peticionario recibió el
emplazamiento de la demanda el 4 de diciembre de 2023.
Transcurrido el término para presentar su alegación responsiva, el
4 de enero de 2024, el foro primario, automáticamente, le
impuso la anotación de rebeldía. En consecuencia, el 9 de enero
de 2024, el Peticionario presentó su Moción Asumiendo
Representación Legal; Moción de Reconsideración de Anotación de
Rebeldía y Solicitando Traslado.11 En este escrito, advirtió que el
4 de enero de 2024 intentó presentar una Moción Solicitando
Prórroga y Traslado a Tribunal de Caguas, sin embargo, ésta no
quedó sometida por problemas técnicos con el Sistema Unificado del
Manejo y Administración de Casos (SUMAC).12
10 [CITATION] KLCE202400243
Ante las circunstancias expuestas, no contemplamos un
escenario de pasividad o dejadez, que ameritase dictar la anotación
de rebeldía. En específico, no identificamos un contexto de
incomparecencia o incumplimiento de orden judicial por parte del
Peticionario. Por tanto, el foro a quo incurrió en abuso de discreción
al no levantar la anotación de rebeldía, y consecuentemente, emitir
un dictamen en abstracción de los criterios establecidos en la
Regla 45.1 de Procedimiento Civil, supra, y su jurisprudencia
interpretativa.
Recordemos, pues, que la anotación de rebeldía constituye
una sanción extrema aplicable exclusivamente a aquellas
situaciones en las que una parte incurra en dilación como estrategia
de litigación. [CITATION], supra.
Adviértase que este mecanismo debe activarse en
circunstancias meritorias dentro de un marco de justicia. De lo
contrario, una anotación de rebeldía sin un análisis ponderado
implica severas consecuencias sobre el debido proceso de ley de
la parte perjudicada, tal como ocurrió en el caso presente. En
vista de lo anterior, resolvemos que el tribunal recurrido excedió de
su ejercicio discrecional al no dejar sin efecto la anotación de
rebeldía.
IV.
Por los fundamentos expuestos, expedimos el auto de
certiorari y revocamos el dictamen recurrido. Consecuentemente,
devolvemos el caso al Tribunal de Primera Instancia para la
continuidad de los procedimientos de conformidad con lo aquí
resuelto.
Lo acordó y manda el Tribunal, y lo certifica la Secretaria del
Tribunal de Apelaciones.
LCDA. LILIA M. OQUENDO SOLÍS
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL VII
Certiorari
CONSEJO DE TITULARES acogido como
DEL CONDOMINIO PLAYA Apelación
AZUL II REPRESENTADO procedente del
POR SU JUNTA DE Tribunal de
DIRECTORES Primera Instancia,
[CITATION] Sala de Carolina
Apelado
Sobre:
v. Cobro de Dinero;
Incumplimiento de
GONZÁLEZ EQUIPOS, INC. Contrato
Apelante Caso Núm.:
CA2023CV00878
Panel integrado por su presidenta, la Juez Domínguez Irizarry, la
Juez Grana Martínez y el Juez Pérez Ocasio
Domínguez Irizarry, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 12 de enero de 2024.
La parte apelante, González Equipos, Inc., comparece ante
nos para que dejemos sin efecto la determinación emitida y
notificada por el Tribunal de Primera Instancia, Sala de Carolina, el
1 de agosto de 2023. Mediante el referido dictamen, el foro primario
le anotó la rebeldía a la parte apelante, y declaró con lugar una
acción en cobro de dinero instada por la parte apelada, el Consejo
de Titulares del Condominio Playa Azul II.
Por los fundamentos que expondremos a continuación, se
confirma la sentencia apelada.
I.
El 22 de marzo de 2023, la parte apelada presentó una
Demanda sobre cobro de dinero e incumplimiento de contrato en
contra del apelante. En el pliego, alegó que suscribió un contrato de
obra con González Equipos el 31 de agosto de 2012, posteriormente
enmendado el 28 de febrero de 2013. Detalló que al realizar los
pagos por los servicios rendidos bajo el referido contrato se
Número Identificador
SEN2024________________ KLCE202301086
efectuaron pagos duplicados. El Consejo de Titulares aseveró que le
remitió una comunicación extrajudicial al apelante el 10 de enero de
2022, en la cual le solicitó el rembolso de los mencionados pagos.
No obstante, indicó que, a la fecha de la radicación de la demanda,
González Equipos no había respondido a la referida comunicación,
ni devuelto el dinero. En virtud de lo anterior, le solicitó al tribunal
que condenara al apelante a pagar la suma retenida, la cual,
presuntamente, ascendía a treinta mil doscientos siete dólares con
cuarenta y ocho centavos ($30,207.48), más el pago de los intereses
acumulados desde que se le requirió por primera vez la devolución
del dinero. A su vez, peticionó que se le compensara por las costas
y los gastos del procedimiento, y se le otorgara una suma por
concepto de honorarios de abogado.
El 3 de mayo de 2023, la parte apelada le notificó al foro
primario que había diligenciado el emplazamiento a González
Equipos el 27 de abril de 2023, mediante entrega personal.
[SEGMENT 20]
Transcurrido el término para que el apelante presentara su
alegación responsiva, el 2 de junio de 2023, el Consejo de Titulares
presentó una solicitud mediante la cual peticionó que se le anotara
la rebeldía a la parte apelante y se dictara sentencia conforme a las
alegaciones de la demanda. En el escrito, especificó que el término
de treinta (30) días provisto por las Reglas de Procedimiento Civil
para la contestación a la demanda había expirado sin que hubiese
comparecido ante el tribunal. Además, planteó que, por la demanda
versar sobre una reclamación en cobro de dinero de una suma
líquida, conforme la Regla 45. 2(a) de Procedimiento Civil, [CITATION], procedía dictar sentencia en rebeldía.
En respuesta, el 6 de junio de 2023, el apelante compareció
ante el tribunal de instancia mediante una Moción Anunciando
Representación Legal. En la misma, le solicitó al tribunal una KLCE202301086
prórroga de treinta (30) días para presentar su contestación a la
demanda.
Evaluadas ambas posturas, el 11 de junio de 2023, notificada
el 14 del mismo mes y año, el foro de primera instancia emitió una
Resolución mediante la cual declaró No Ha Lugar la solicitud de
anotación de rebeldía. Ese mismo día, el referido foro emitió una
Orden concediéndole al apelante hasta el 5 de julio de 2023 para
contestar la demanda.
Luego de aproximadamente un mes de haber vencido el
referido término, el 1 de agosto de 2023, la parte apelada solicitó
nuevamente que se le anotara la rebeldía al apelante y se dictara
sentencia a su favor. En el escrito, puntualizó que la parte apelante
no había presentado su contestación a la demanda, ni se había
expresado en cumplimiento a la orden previamente dictada por el
foro primario. Así, peticionó que se dictara sentencia en rebeldía,
conforme a las alegaciones de la demanda.
Ese mismo día, luego de evaluado el petitorio de la parte
apelada, el foro primario emitió la Sentencia apelada. Mediante el
aludido dictamen, le anotó la rebeldía a González Equipos y dio por
admitidos todos los hechos que se relataron en la demanda. En
virtud de ello, condenó al apelante a pagarle al Consejo de Titulares
la suma de a treinta mil doscientos siete dólares con cuarenta y ocho
centavos ($30,207.48), más los intereses legales desde el 10 de enero
de 2022 hasta el pago de la totalidad de la deuda.
Inconforme, el 14 de agosto de 2023, el apelante solicitó
Reconsideración de Sentencia y Anotación de Rebeldía.
Esencialmente, alegó que su representante legal estuvo fuera de sus
labores por asuntos médicos que se le presentaron de imprevisto, y
que, por error e inadvertencia, la alegación responsiva quedó KLCE202301086
pendiente de presentación.1 Además, arguyó que en virtud de las
Reglas 45.3 y 49.2 de Procedimiento Civil el tribunal podía por
causas justificadas dejar sin efecto una anotación de rebeldía y
relevar a una parte de una sentencia dictada en rebeldía. Al amparo
de lo expuesto, le solicitó al foro primario que dejara sin efecto la
anotación de rebeldía, y que permitiera la contestación a la
demanda, la cual, se presentaría ese mismo día.
En respuesta a la petición, ese mismo día, el tribunal de
instancia emitió una Orden, notificada al siguiente día. Mediante
esta, indicó que procedería a atender el reclamo de la parte apelante,
una vez la parte apelada se expresara en cuanto a la solicitud de
reconsideración. Así, mediante una orden notificada en igual fecha,
le concedió a la parte apelada quince (15) días para incoar su
posición.
En cumplimiento con lo ordenado por el tribunal, el 30 de
agosto de 2023, el Consejo de Titulares presentó oposición a la
reconsideración. Arguyó que, para que el tribunal pudiese relevar a
González Equipos de la anotación de rebeldía, debía existir una
causa justificada. Enfatizó que en el presente caso el apelante, para
justificar no haber presentado su alegación responsiva, se limitó a
indicar que su representante legal tuvo un imprevisto médico, y no
incluyó ningún dato o documento adicional que permitiera al
tribunal determinar si tales circunstancias eran ciertas. A su vez,
aseveró que los criterios que el tribunal debía considerar para
determinar si procedía dejar sin efecto la anotación de rebeldía eran
similares a los utilizados para evaluar la procedencia de una moción
de relevo de sentencia en virtud de la Regla 49.2 de Procedimiento
Civil. Así, pues, arguyó que el tribunal debía de tomar en cuenta si
el apelante tenía una buena defensa en sus méritos.2 En vista de
1 Apéndice IX del recurso, pág. 19.
2 Apéndice XI del recurso, pág. 27. KLCE202301086
ello, resaltó que González Equipos había guardado silencio en su
escrito en cuanto a sus defensas. Al amparo de lo expuesto, la parte
apelada le solicitó al tribunal que declarara sin lugar la solicitud de
reconsideración.
Examinadas las posturas de las partes, el 31 de agosto de
2023, el foro primario emitió una Resolución en la cual declaró No
Ha Lugar la solicitud de reconsideración instada por el apelante.
Aún en desacuerdo, el 2 de octubre de 2023, González
Equipos compareció ante nos mediante un recurso de Certiorari. En
el mismo formuló el siguiente planteamiento:
Erró el Honorable Tribunal de Primera Instancia [al]
declarar “No Ha Lugar” la solicitud de reconsideración
y anotación de rebeldía contra la parte demandada toda
vez que existían causas justificadas y controversias
entre las partes que ameritaban ver el caso en sus
méritos.
Tras examinar el recurso, el 3 de octubre de 2023, emitimos
una Resolución en la cual acogimos el mismo como una apelación
por recurrir de una Sentencia emitida por el tribunal de instancia.
Luego de examinar el expediente que nos ocupa, y contando
con la postura de la parte apelada, procedemos a expresarnos
II.
Cónsono con lo estatuido en la Regla 45.1 de las de
Procedimiento Civil, 32 LPRA Ap. V, R. 45.1, procede una anotación
de rebeldía cuando una parte contra la cual se ha solicitado una
sentencia que conceda algún remedio afirmativo, deje de presentar
la correspondiente alegación o de defenderse en otra forma. [CITATION]. En
nuestro sistema de ley, la rebeldía se concibe como la posición
procesal que asume aquella parte que, tras ser requerido
judicialmente, opta por no ejercitar su derecho a defenderse. R.
Hernández Colón, Práctica Jurídica de Puerto Rico; Derecho Procesal KLCE202301086
Civil, Lexis Nexis de Puerto Rico, Inc., 6ta Edición, 2017, pág.
327.
El remedio dispuesto en la antes aludida Regla opera en dos
situaciones: cuando el demandado no cumple con el requisito de
comparecer a contestar la demanda o defenderse, o cuando una de
las partes en un pleito incumple con algún mandato del tribunal, y
este le impone la rebeldía a manera de sanción. [CITATION] El mismo, además, tendrá como consecuencia
jurídica que se estimen aceptadas todas y cada una de las materias
bien alegadas en la demanda, o aquella formulada contra el rebelde,
y que se autorice al tribunal a dictar sentencia, si esta procede en
derecho. [CITATION]
Ahora bien, los tribunales tienen la facultad de dejar sin efecto
una anotación de rebeldía cuando exista justa causa para ello.
Igualmente, pueden, de conformidad con lo dispuesto en la Regla
49.2 de Procedimiento Civil, 32 LPRA Ap. V, R. 49.2, dejar sin efecto
una sentencia dictada en rebeldía. Regla 45.3 de Procedimiento
Civil, 32 LPRA Ap. V, R. 45.3.
No obstante lo anterior, la parte que solicita que se deje sin
efecto una anotación de rebeldía, tiene el deber de presentar
evidencia de circunstancias que a juicio del tribunal demuestre:
justa causa para la dilación; probar que tiene una buena defensa en
sus méritos y que el grado de perjuicio que pueda ocasionarse a la
otra parte es razonablemente mínimo. [CITATION] No son suficientes escuetas
alegaciones o someros argumentos al respecto. [CITATION]
====== End of Document ====== KLCE202301086
De otra parte, nuestro Alto Foro ha resaltado que, para poder
[SEGMENT 21]
acreditar la justa causa, el abogado o la parte tendrá que ofrecer
explicaciones concretas y particulares debidamente evidenciadas en
el escrito pertinente. Alegaciones superfluas, vaguedades o
planteamientos estereotipados, no cumplen con las exigencias
reconocidas en el ordenamiento. [CITATION].
III.
En el presente caso, la parte apelante aduce que el foro a quo
debió dejar sin efecto la anotación de rebeldía, dado a que existían
causas justificadas por las que no presentó su contestación a la
demanda en el término concedido.
Un examen del expediente que nos ocupa mueve nuestro
criterio a resolver que el tribunal primario no incidió al negarse a
levantar la anotación de rebeldía. Según reseñamos, la parte que
interese que se levante una anotación de rebeldía, o inclusive que se
deje sin efecto una sentencia en rebeldía, deberá demostrar justa
causa para su incomparecencia y una buena defensa, no pudiendo
descansar en escuetas alegaciones o someros argumentos al
respecto.
Tal cual relatamos anteriormente, el apelante nunca presentó
su contestación a la demanda, aún con el beneficio de una prórroga
concedida por el foro recurrido. Así, pues, el tribunal le anotó la
rebeldía a solicitud de la parte apelada, luego de que transcurriera
aproximadamente un mes de haber expirado el término otorgado.
No fue hasta que el foro primario dictó sentencia en rebeldía a favor
de la parte apelada que el apelante compareció en solicitud de
reconsideración. En su escrito, únicamente manifestó que su
====== KLCE202301086
representante legal tuvo un imprevisto médico por el cual se vio
impedido de presentar la contestación a la demanda. Sin embargo,
no detalló cual fue la situación médica que tuvo su abogado, ni
incluyó ninguna documentación al respecto. Peor aún, no esbozó en
su escrito ninguna buena defensa en los méritos de la reclamación
de epígrafe, conforme a lo requerido por nuestro ordenamiento
procesal civil.
IV
Por los fundamentos que anteceden, se confirma la Sentencia
en Rebeldía apelada.
Lo acordó el Tribunal, y lo certifica la Secretaria del Tribunal.
La Jueza Grana Martínez disiente mediante voto escrito.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones KLCE202301086
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL VII
CONSEJO DE Certiorari
TITULARES DEL acogido como
CONDOMINIO PLAYA Apelación
AZUL II procedente del
REPRESENTADO POR Tribunal de Primera
SU JUNTA DE Instancia, Sala de
DIRECTORES Carolina
KLCE202301086
Apelado Sobre:
Cobro de Dinero;
v. Incumplimiento de
Contrato
GONZÁLEZ EQUIPOS,
INC. Caso Núm.:
CA2023CV00878
Apelante
Panel integrado por su presidenta, la Juez Domínguez Irizarry, la
Juez Grana Martínez y el Juez Pérez Ocasio
VOTO DISIDENTE DE LA JUEZA GRANA MARTÍNEZ
Los principios básicos de acceso a la justicia, el debido
proceso de ley y la política pública en pro de que los casos se ventilen
en sus méritos, me obligan a disentir de la opinión mayoritaria. Los
tribunales somos el foro que los ciudadanos tienen disponibles para
buscar remedios a sus conflictos legales. Nuestra función principal
es garantizarle un proceso justo e imparcial. La solución justa a sus
conflictos amerita el descubrimiento de la verdad. La rebeldía no
puede ser usada para darle la ventaja a los demandantes de tener
una sentencia a su favor, sin una vista en sus méritos. [CITATION]
A diferencia de la opinión mayoritaria entiendo que existe
justa causa para dejar sin efecto la anotación de rebeldía. La
apelante demostró la existencia de negligencia excusable para la
dilación en contestar la demanda. González Equipos Inc. solicitó
reconsideración a la anotación de rebeldía y a la sentencia en
rebeldía oportunamente. La apelante atribuyó la tardanza en
contestar la demanda a que su abogada tuvo un problema de salud
imprevisto y a que, por error e inadvertencia, quedó pendiente de
presentación la contestación a la demanda. KLCE202301086
La moción de reconsideración estuvo acompañada de la
contestación de la demanda en la que la apelante evidenció que
tiene una buena defensa en sus méritos. La apelante negó la
existencia de la deuda, de enriquecimiento ilegal, del recibo y
retención ilegal de pagos duplicados. Igualmente negó la
procedencia de devolución de cantidad alguna. Véase, alegaciones
4-6, 8 y 10 de la Contestación de la Demanda. También alegó que
realizó gestiones con la apelada para aclarar la alegada duplicidad
de pagos. Como defensa afirmativa alegó que la demandante está
impedida por sus actos propios, porque el contrato se realizó en su
totalidad conforme a lo pactado. Según la apelante, tiene evidencia
de las certificaciones preparadas con el propósito de efectuar pagos,
que acreditan que realizó el trabajo. Véase, págs. 24 y 25 del
apéndice del recurso.
Por otro lado, no entiendo que la demandante pueda sufrir
algún perjuicio porque se deje sin efecto la anotación de rebeldía. A
nuestro juicio es pertinente señalar que el contrato que originó la
demanda ocurrió el 31 de agosto de 2012 y se enmendó el 28 de
febrero de 2013. Aunque la apelada no alegó cuándo hizo los
supuestos pagos duplicados, no es hasta el 22 de marzo de 2023
que presentó la demanda.
A mi entender, resulta obvio concluir que los fundamentos
para levantar la anotación de rebeldía son los mismos por los que
procede dejar sin efecto la sentencia en rebeldía. La apelante
demostró: (1) negligencia excusable para su dilación en contestar la
demanda, (2) tener una buena defensa en sus méritos, (3) que el
levantamiento de la rebeldía no causaría perjuicio a la apelada y (4)
solicitó reconsideración oportunamente a la sentencia en rebeldía.
El foro primario ejerció irrazonablemente su discreción. Los
hechos materiales alegados en la demanda son insuficientes para
establecer una causa de acción que justifique el remedio que la KLCE202301086
apelada solicita. Sus alegaciones son generalizadas y concluyentes.
La apelada solo alegó que hizo unos pagos duplicados a la apelante
por $30,207.48 y que se ha negado a reembolsarlos. No obstante,
de la demanda ni siquiera surge cuándo hizo esos pagos y por
concepto de qué. La apelada tampoco acompañó con la demanda
evidencia que acredite la existencia de la deuda y que su cuantía es
líquida y exigible. La única evidencia que acompaña son las cartas
que envió a la apelante el 10 de enero de 2022 y el 22 de marzo de
2022, que nada aportan a corroborar la existencia de la deuda y la
cuantía.
Ante ese escenario, el foro primario debió ejercer su discreción
para solicitarle a la apelada la comprobación de sus aseveraciones
y realizar las vistas necesarias para confirmar la existencia de una
causa de acción.
Por lo antes expuesto, disiento de la opinión mayoritaria,
debido a que revocaría la anotación y la sentencia en rebeldía.
En San Juan, Puerto Rico, a 12 de enero de 2024.
Grace M. Grana Martínez
Jueza del Tribunal de Apelaciones ```plaintext
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
Apelación procedente
RADAMÉS JORDÁN ORTIZ del Tribunal de
Primera Instancia,
Demandante Apelado Sala Superior de
Fajardo
v. [CITATION]
Caso Núm.:
CONSOLIDADO [CITATION]
CONSEJO DE TITULARES (Salón 307)
DEL CONDOMINIO DOS [CITATION]
MARINAS I Y OTROS
Sobre:
Demandados Apelantes Daños y Perjuicios
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Candelaria Rosa, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 20 de diciembre de 2023.
Consolidamos dos recursos de apelación presentados
separadamente instados por el Consejo de Titulares del Condominio
[SEGMENT 22]
Dos Marinas I (Consejo de Titulares) e In-Servicio, LLC (In-Servicio).
Ambas partes solicitan la revocación de la Sentencia del Tribunal de
Primera Instancia, Sala Superior de Fajardo, emitida el 23 de febrero de
2023. Mediante el dictamen recurrido, se les ordenó a los apelantes
pagar doscientos setentaicinco mil dólares ($275,000.00) por daños y
perjuicios y veinticinco mil dólares ($25,000.00) por las costas, los
gastos y los honorarios de abogados. Por las razones que habremos de
expresar, se revoca la Sentencia apelada.
En síntesis, el caso de epígrafe trata del presunto destrozo y
saqueo del apartamento del señor Radamés Jordán Ortiz (señor Jordán
Ortiz o recurrido) luego de este haber entregado las llaves de su
Número Identificador
SEN2023 _______________ KLAN202300971 consolidado con KLAN202301004
vivienda a la corporación In-Servicio LLC para que se hicieran
reparaciones a la tubería central del Condominio. En función de esto, el
señor Jordán Ortiz presentó una demanda en contra del Consejo de
Titulares e In-Servicio por daños y perjuicios. Durante el
diligenciamiento de los emplazamientos, el señor Jordán Ortiz
confirmó haber emplazado personalmente a In-Servicio, pero no al
Consejo de Titulares, al supuestamente no localizar al presidente del
organismo. Según la declaración jurada del señor José A. Hernández
Gajate (señor Hernández Gajate o emplazador), este se presentó al
Condominio y fue atendido por la administradora del Consejo de
Titulares, quien le dijo que ella no estaba autorizada a recibir
documentación legal. Ante esto, el emplazador suministró su número
telefónico y esperó por la llamada del referido presidente, cual nunca
llegó. No se efectuaron otros actos para localizar al presidente.
Al supuestamente no poder entregar el emplazamiento
personalmente, el señor Jordán Ortiz solicitó al foro primario que se
emplazara por edicto al Consejo de Titulares, lo cual fue declarado ha
lugar. Tiempo después, sin el Consejo de Titulares o In-Servicio
presentar respuesta a la demanda, el señor Jordán Ortiz solicitó la
anotación de rebeldía de los codemandados, la cual fue ordenada por el
foro primario. Sin notificar al Consejo de Titulares o a In-Servicio, el
Tribunal de Primera Instancia celebró una vista en rebeldía con el señor
Jordán Ortiz. Subsiguientemente, el foro primario dictó Sentencia,
notificada a los codemandados mediante edicto.
Oportunamente, In-Servicio presentó una Moción urgente de
reconsideración y/o solicitando relevo de sentencia bajo la Regla
49.2(a)(f) “Remedios contra la sentencia u órdenes y otros asuntos”, KLAN202300971 consolidado con KLAN202301004
alegando que la aseguradora Multinational Insurance Company no le
advirtió que su póliza no cubría los hechos en controversia. Igualmente,
el Consejo de Titulares presentó una Moción de reconsideración y/o de
relevo de sentencia, argumentando que la diligencia del emplazador fue
insuficiente para ameritar un emplazamiento por edicto, más que el
costo de los daños adjudicados en contra del Consejo de Titulares es
excesivamente inflado y no tiene fundamento probatorio para validarlo.
Luego de evaluar las referidas solicitudes, la oposición del señor Jordán
Ortiz y otros trámites procesales, el foro primario dictó sin lugar las
peticiones de los codemandados.
Por todo lo anterior, el Consejo de Titulares recurrió ante este
Tribunal, alegando que el foro primario erró (1) al permitir el
emplazamiento por edicto basado en una declaración jurada
estereotipada, (2) al no reconsiderar o relevar los efectos de la
Sentencia, (3) al condenarlo a pagar una suma excesiva de daños y
perjuicios, y (4) al imponer costas, gastos y honorarios de abogado por
temeridad. De manera similar, In-Servicio recurrió ante este Tribunal,
argumentando que el foro primario erró al no dejar sin efecto la
Sentencia y al imponer costas, gastos y honorarios de abogado por
temeridad.
Vale recordar que nuestro ordenamiento establece un mecanismo
procesal para solicitar el relevo de los efectos de una sentencia, a fin de
evitar que se vean frustrados los fines de justicia. Véase Regla 49.2 de
Procedimiento Civil de 2009 (32 LPRA Ap. V); [CITATION] Específicamente, dispone que se
podrá relevar a una parte o a su representante legal de una sentencia,
entre otras causas, por error, inadvertencia, sorpresa o negligencia ```plaintext
KLAN202300971 consolidado con KLAN202301004
excusable; también, por nulidad de la sentencia. Regla 49.2 de
Procedimiento Civil de 2009, supra. Sin embargo, para obtener el
relevo es necesario que el promovente de la solicitud haya sido diligente
en la tramitación del caso. [CITATION]
Por otra parte, los tribunales están obligados a desalentar la
práctica de falta de diligencia y de incumplimiento con sus órdenes
mediante su efectiva, pronta y oportuna intervención. [CITATION] (citando a
[CITATION]). La
determinación de desestimar una demanda o eliminar las alegaciones
de una parte se debe ejercer juiciosa y apropiada. [CITATION] (citando a
[CITATION]). Véase,
también, [CITATION] Ello, debido a la norma judicial de que los casos se ventilen
en sus méritos. [CITATION] (citando a [CITATION], pág. 701; [CITATION])
Cónsono con lo anterior, un tribunal solo tendrá jurisdicción
sobre una persona si esta fue debidamente emplazada, de conformidad
con el derecho constitucional del debido proceso de ley. [CITATION] (citando a [CITATION]) KLAN202300971 consolidado con KLAN202301004 5
De esta manera, el demandado podrá comparecer ante el foro primario,
ejercer su derecho a ser oído y defenderse. [CITATION], supra, pág. 644 (citando a [CITATION]). De no ser emplazado conforme a ley, el
foro primario deberá declarar su falta de jurisdicción y desestimar la
reclamación sin entrar en sus méritos. [CITATION] (citando a [CITATION]). En otro sentido, si un tribunal
decreta una sentencia sin el demandado haber sido correctamente
emplazado conforme a ley, tal dictamen será nulo. [CITATION] (citando a [CITATION]).
Ahora bien, cabe señalar que la Regla 4.3(c) de Procedimiento
Civil dispone en lo pertinente que “[e]l emplazamiento será
diligenciado en el término de ciento veinte (120) días a partir de la
presentación de la demanda”. Regla 4.3 de Procedimiento Civil de
2009, supra. De tratar de emplazarse una corporación o compañía, el
emplazador debe entregar copia del emplazamiento y de la demanda a
un oficial, gerente administrativo o cualquier otro agente autorizado
para recibir nombramientos. Regla 4.4 de Procedimiento Civil de 2009,
supra. De transcurrir el término de ciento veinte (120) días sin que se
hubiese diligenciado el emplazamiento, el Tribunal deberá dictar
sentencia decretando la desestimación y archivo sin perjuicio. Íd.;
Véase, también, [CITATION], supra. No
obstante, cuando el demandante intenta infructuosamente emplazar
personalmente al demandado dentro de los ciento veinte (120) días, el
foro primario puede autorizar que se emplace por edicto al demandado, KLAN202300971 consolidado con KLAN202301004
igualmente dentro de los ciento veinte (120) días de haberse emitido la
orden. Véase Reglas 4.3 y 4.6 de Procedimiento Civil de 2009, supra.
Para que proceda dicho emplazamiento, el demandante debe acreditar
mediante declaración jurada las diligencias realizadas para localizar y
emplazar al demandando. Regla 4.6 de Procedimiento Civil de 2009,
supra.
Conviene destacar que la declaración jurada referida en la Regla
4.6 de Procedimiento Civil debe expresar hechos específicos y no meras
conclusiones o generalidades, es decir, se debe incluir las personas con
quienes se investigó y su dirección. [CITATION] (citando a [CITATION]). Como buena
práctica de diligenciamiento, el emplazador debe tratar de inquirir de
las autoridades de la comunidad, cuales incluyen la policía, el alcalde y
el administrador de correos. [CITATION] (citando a [CITATION]). Es imperativo que el foro primario tenga
en cuenta “todos los recursos razonablemente accesibles al demandante
[SEGMENT 23]
para hallar al demandado, y si se ha agotado toda posibilidad razonable
disponible para poder localizarlo”. Íd., pág. 483 (citando a [CITATION]).
Presumiendo que se haya diligenciado el emplazamiento por
edicto, la Regla 10.1 requiere que el demandado presente su
contestación a la demanda dentro de los treinta (30) días de haberse
publicado el edicto. Regla 10.1 de Procedimiento Civil de 2009, supra.
De no disponer de una contestación dentro del referido término, se le
podrá anotar la rebeldía del demandado, siempre y cuando se pruebe
mediante una declaración jurada o de otro modo. Regla 45.1 de KLAN202300971 consolidado con KLAN202301004
Procedimiento Civil de 2009, supra. Consecuentemente, la anotación
de rebeldía tendrá el efecto de que se den por admitidas las
aseveraciones de las alegaciones afirmativas. Íd. No obstante, el foro
primario podrá dejar sin efecto una anotación de rebeldía por justa
causa, es decir, si se presenta evidencia de razón justificada por la
dilación, o que existe una buena defensa en sus méritos y el grado de
perjuicio contra la otra parte con relación al proceso es razonablemente
mínimo. Regla 45.3 de Procedimiento Civil de 2009, supra. Véase
[CITATION].
De conformidad con los hechos de este caso, según surgen del
expediente, la declaración jurada del emplazador fue insuficiente para
justificar el emplazamiento por edicto del Consejo de Titulares. Según
aparece en la declaración jurada, el señor Hernández Gajate se personó
en el Condominio una sola vez, para solo dejar su número de teléfono
y esperar que el demandado lo contactara o buscara a él, desistiendo de
cualquier otro diligenciamiento o gestión afirmativa para localizar al
presidente del Consejo de Titulares. No inquirió con alguna de las
múltiples autoridades del municipio o el mismo Consejo de Titulares,
tampoco se personó en el Condominio más de una vez, ni intentó
localizar al presidente en su residencia principal.
Es evidente, por tanto, que la declaración jurada del emplazador,
mas bien demostró la deficiencia del diligenciamiento, por lo que no
ameritaba un emplazamiento por edicto. En consecuencia, por el
Consejo de Titulares no haber sido emplazado según es su derecho,
la Sentencia dictada por el Tribunal de Primera Instancia es inválida,
ergo nula, con la consecuencia de no tener efecto jurídico alguno con [CITATION] consolidado con [CITATION]
respecto a los afectados por la misma que surgen de los casos
[CITATION] y [CITATION].
Por los fundamentos expuestos, revocamos la Sentencia apelada.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones
Estado Libre Asociado de Puerto Rico
TRIBUNAL DE APELACIONES
PANEL XI
GLADYS GARCÍA Certiorari
CARRASQUILLO procedente del
Tribunal de Primera
Instancia, Sala
Demandante Recurrida [CITATION] Superior de Fajardo
v. Caso Núm.:
[CITATION]
(Salón 307)
JUAN CRUZ RAMOS Y
OTROS Sobre:
Acción de Deslinde
Demandados Peticionarios y Otros
Panel integrado por su presidenta, la Juez Brignoni Mártir, el Juez
Candelaria Rosa, la Jueza Álvarez Esnard y la Jueza Díaz Rivera.
Candelaria Rosa, Juez Ponente
SENTENCIA
En San Juan, Puerto Rico, a 19 de diciembre de 2023.
Comparece la señora Carmen Arenas Figueroa, el señor Juan
Cruz Ramos, la Sociedad Legal de Gananciales compuesta por ambos,
y el señor Vicente Martínez Ramos (conjuntamente “recurrentes”)
mediante certiorari para solicitar la revocación de la Orden del
Tribunal de Primera Instancia, Sala Superior de Fajardo, emitida el 8
de septiembre de 2023. Mediante dicho dictamen, se anotó la rebeldía
de los recurrentes por estos no responder a la demanda instada en su
contra dentro del término dispuesto por ley. Por los fundamentos que
expresamos a continuación, expedimos el auto solicitado y revocamos
la resolución recurrida.
En síntesis, el caso de epígrafe trata de una demanda por
movimientos de terreno que variaron la colindancia entre los lotes de la
Número Identificador
[CITATION] _______________ KLCE202301198
señora Gladys García Carrasquillo (señora García Carrasquillo o
recurrida) y los recurrentes. Luego de varias diligencias para localizar
a los recurrentes, la señora García Carrasquillo solicitó al foro primario
la autorización para emplazar por edicto. Después de la autorización
emitida el 24 de abril de 2023, la señora García Carrasquillo emplazó
por edicto al señor Martínez Ramos el 5 de mayo de 2023. Meses
después, en el 27 de junio de 2023, el foro primario autorizó el
emplazamiento por edicto de la señora Arenas Figueroa, señor Cruz
Ramos y la Sociedad Legal de Gananciales compuesta por ambos, la
cual fue cumplida el 3 de agosto de 2023.
Durante el transcurso de estos trámites, los recurrentes
presentaron una moción de prórroga para buscar representación legal y
otra para anunciar la adquisición de la referida representación, ambas
veces declarando que no se sometían a la jurisdicción del foro primario.
Posterior a una solicitud de los recurrentes de que se acreditara su
emplazamiento —igualmente con la explicación que no se sometían a
la jurisdicción del tribunal— la recurrida probó el emplazamiento por
edicto del señor Martínez Ramos mediante (1) la declaración jurada de
la representante del periódico El Nuevo Día, (2) un ejemplar del edicto
publicado, y (3) una foto del acuse de recibo de la copia del
emplazamiento y de la demanda. Sin embargo, para el tiempo de la
referida solicitud, el Tribunal de Primera Instancia no había autorizado
el emplazamiento por edicto de los otros recurrentes.
Sin presentarse respuesta a la demanda dentro de los treinta (30)
días subsiguientes a los respectivos emplazamientos, la señora García
Carrasquillo presentó una solicitud de anotación de rebeldía en contra
de los recurrentes. En la petición, la señora García Carrasquillo incluyó KLCE202301198
la mencionada acreditación del emplazamiento del señor Martínez
Ramos, más prueba similar del emplazamiento por edicto de los otros
recurrentes. Acto seguido, después de los recurrentes haber presentado
una oposición a la mencionada solicitud, el foro primario ordenó la
anotación de rebeldía. Ese mismo día, los recurrentes presentaron su
Contestación a demanda y reconvención, a la cual la señora García
Carrasquillo respondió posteriormente.
Oportunamente, los recurrentes solicitaron una reconsideración
a la anotación de rebeldía que Tribunal de Primera Instancia declaró sin
lugar. Por causa de esta última determinación, los recurrentes acuden
ante este Tribunal de Apelaciones, argumentando que el foro primario
erró al (1) anotar la rebeldía de los recurrentes en violación a la Regla
45.1 de Procedimiento Civil y la doctrina del trato justo (fair play) y (2)
no ejercer la Regla 45.3 de Procedimiento Civil.
Vale recordar que el auto de certiorari es el vehículo procesal,
discrecional y extraordinario mediante el cual un tribunal de mayor
jerarquía puede rectificar errores jurídicos. [CITATION]. Conforme a la referida Regla
52.1, los criterios que permiten la expedición de un certiorari consisten
en revisar una orden de carácter dispositivo o resolución según las
Reglas 56 y 57 de Procedimiento Civil. [CITATION], supra. Por lo tanto, la función del Tribunal Apelativo frente a la
revisión de controversias a través del certiorari requiere valorar la
actuación del foro primario y predicar su intervención en si la misma
constituyó un abuso de discreción; en ausencia de evidencia suficiente
de tal abuso o de acción prejuiciada, error o parcialidad, no corresponde KLCE202301198
intervenir con las determinaciones del Tribunal de Primera Instancia.
[CITATION] (citando a [CITATION]).
Por otra parte, los tribunales están obligados a desalentar la
práctica de falta de diligencia y de incumplimiento con sus órdenes
mediante su efectiva, pronta y oportuna intervención. [CITATION] (citando a
[CITATION]). La determinación de desestimar una demanda o eliminar las alegaciones
[SEGMENT 24]
de una parte se debe ejercer juiciosa y apropiada. [CITATION] (citando a
[CITATION]).
Véase, también, [CITATION]. Ello, debido a la norma judicial de que los casos
se ventilen en sus méritos. [CITATION] (citando a [CITATION]).
Ahora bien, cabe señalar que la Regla 4.3(c) de Procedimiento
Civil dispone en lo pertinente que “[e]l emplazamiento será
diligenciado en el término de ciento veinte (120) días a partir de la
presentación de la demanda”. Regla 4.3 de Procedimiento Civil de
2009, supra. De transcurrir el término de ciento veinte (120) días sin
que se hubiese diligenciado el emplazamiento, el Tribunal deberá dictar
sentencia decretando la desestimación y archivo sin perjuicio. Íd.; KLCE202301198
Véase, también, [CITATION]
(2018). No obstante, cuando el demandante intenta infructuosamente
emplazar personalmente al demandado dentro de los ciento veinte (120)
días, el foro primario puede autorizar que se emplace por edicto al
demandado, igualmente dentro de los ciento veinte (120) días de
haberse emitido la orden. Véase [CITATION], supra. Para que proceda dicho emplazamiento, el
demandante debe acreditar mediante declaración jurada las diligencias
realizadas para localizar y emplazar al demandando. [CITATION], supra.
Conviene destacar que la [CITATION]
requiere la acreditación de los emplazamientos por edictos mediante:
(1) la declaración jurada del administrador o agente autorizado del
periódico, (2) un ejemplar del edicto publicado, y (3) un escrito del
abogado que certifique que se depositó en el correo una copia del
emplazamiento y de la demanda. [CITATION], supra. No obstante, la misma [CITATION] aclara que la omisión de
presentar prueba del diligenciamiento no surtirá efectos en cuanto a la
validez del emplazamiento por edicto. Íd. Si la parte demandada admite
que fue emplazada, renuncia al diligenciamiento del emplazamiento o
comparece ante el foro primario, no será necesario probar el
diligenciamiento. Íd.
Presumiendo que se haya diligenciado el emplazamiento por
edicto, la [CITATION] requiere que el demandado presente su
contestación a la demanda dentro de los treinta (30) días de haberse
publicado el edicto. [CITATION], supra.
De no disponer de una contestación dentro del referido término, se le KLCE202301198
podrá anotar la rebeldía del demandado, siempre y cuando se pruebe
mediante una declaración jurada o de otro modo. Regla 45.1 de
Procedimiento Civil de 2009, supra. Consecuentemente, la anotación
de rebeldía tendrá el efecto de que se den por admitidas las
aseveraciones de las alegaciones afirmativas. Íd. No obstante, el foro
primario podrá dejar sin efecto una anotación de rebeldía por justa
causa, es decir, si se presenta evidencia de razón justificada por la
dilación, o que existe una buena defensa en sus méritos y el grado de
perjuicio contra la otra parte con relación al proceso es razonablemente
mínimo. Regla 45.3 de Procedimiento Civil de 2009, supra. Véase
[CITATION].
De conformidad con los hechos, los recurrentes respondieron a
la demanda instada contra ellos. Aunque no entregaron alegaciones
responsivas en el término dispuesto por ley, estos contestaron y
presentaron su oposición a la anotación de rebeldía un día después de
haberse solicitado tal anotación, evidenciando (1) su sumisión a la
jurisdicción del foro primario y (2) su diligencia en responder cuando
advirtieron que recibieron una orden o notificación. Lo cierto es que la
acreditación oportuna les hubiera avisado de que se publicó un edicto y
que estos deberían verificar el ejemplar que lo contiene. En ese sentido,
una acreditación tardía sustrae de los recurrentes la oportunidad de
conocer las alegaciones instadas contra ellos, la manera que deberían
defenderse y que el caso se ventile en sus méritos. Por lo tanto, las
alegaciones responsivas no debieron descartarse, en particular cuando
ambas partes han comparecido ya ante el foro primario. KLCE202301198
Por los fundamentos expuestos, expedimos el auto solicitado y
revocamos la Resolución recurrida. Se devuelve el caso al Tribunal de
Primera Instancia para la continuación de los procesos.
Lo acordó y manda el Tribunal y lo certifica la Secretaria del
Tribunal de Apelaciones.
Lcda. Lilia M. Oquendo Solís
Secretaria del Tribunal de Apelaciones [Yours may actually include context here—where the court is detailing background information, stating applicable law or precedent, and discussing the application of the facts in the present case.]
...
In previous cases such as [CITATION], and more recently in [CITATION], the court has consistently ruled that such evidence is inadmissible. However, in the landmark decision [CITATION], the court outlined specific exceptions to this general rule.
...
The appellant referenced [CITATION] when arguing their point, while the appellee's counsel relied heavily on [CITATION]. The trial court's discretion and the established precedents in cases like [CITATION] provided a framework for the current decision.
[Yours may actually include specific determinations, formal logic, and the court's conclusion in applying the rules to this particular case.]
...
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
EN EL TRIBUNAL SUPREMO DE PUERTO RICO
Mitsubishi Motor Sales of
Caribbean, Inc.
Apelante 2023 TSPR 110
v. 212 DPR ___
Lunor, Inc. y otros
Apelados
Número del Caso: AC-2020-0082
Fecha: 12 de septiembre de 2023
Tribunal de Apelaciones:
Panel I
Abogados de la parte apelante:
Lcdo. James Belk-Arce
Lcdo. Carlos J. Grovas Porrata
Abogado de la parte apelada:
Lcdo. Israel Roldán González
Materia: Procedimiento Civil – Si la sanción de la eliminación de
las alegaciones que dispone la Regla 34.3 (b) (3) de Procedimiento
Civil permite que la parte demandada sancionada presente prueba en
el juicio para refutar los méritos de las alegaciones de la parte
demandante.
Este documento está sujeto a los cambios y correcciones del proceso
de compilación y publicación oficial de las decisiones del Tribunal
Supremo. Su distribución electrónica se hace como un servicio público
a la comunidad.
EN EL TRIBUNAL SUPREMO DE PUERTO RICO
Mitsubishi Motor Sales of
Caribbean, Inc.
Apelante
v. AC-2020-0082
Lunor, Inc. y otros
Apelados
Opinión del Tribunal emitida por el Juez Asociado señor Kolthoff
Caraballo
En San Juan, Puerto Rico a 12 de septiembre de 2023.
En esta ocasión tenemos la oportunidad de analizar
si la sanción de la eliminación de las alegaciones que
dispone la Regla 34.3(b)(3) de Procedimiento Civil,
32 LPRA Ap. V permite que una parte demandada así
sancionada pueda presentar prueba en el juicio para
refutar los méritos de las alegaciones de la parte
demandante o si, por el contrario, procede que el foro
de instancia aplique las disposiciones de la Regla
45.2(b) de Procedimiento Civil, 32 LPRA Ap. V
concernientes al trámite en rebeldía.
Por los fundamentos que expondremos, resolvemos
que una vez dictada la orden sobre la eliminación de
todas las alegaciones que dispone la Regla 34.3(b)(3) de
AC-2020-0082 2
Procedimiento Civil, procede que el Tribunal de Primera Instancia
declare a la parte demandada en rebeldía y continúe los
procedimientos según todas las disposiciones, efectos y la norma
jurisprudencial concernientes a la rebeldía. Por lo tanto, a
excepción del importe de los daños reclamados, la parte demandada
no podrá presentar prueba para impugnar los méritos de la
demanda.
I
Allá para el 2002, Mitsubishi Motors Sales of Caribbean,
Inc. (el peticionario) presentó una causa de acción contra, entre
otros, el Sr. José Julio Feliciano Prieto, la Sra. Arelys
Concepción Lorenzo y la Sociedad Legal de Gananciales compuesta
entre ellos y contra el Sr. Gustavo E. Guilbe Ortiz, la
Sra. Sonia E. Ortiz Ruiz y la Sociedad Legal de Gananciales
compuesta entre ellos (los recurridos).
Durante la etapa de descubrimiento de prueba entre el
peticionario y los recurridos se desató una controversia con
relación a la producción de documentos que duró varios años. En
diversas instancias el tribunal le advirtió a los recurridos de
las consecuencias de incumplir con las órdenes para descubrir
prueba e incluso les impuso sanciones económicas. Para el 2014,
el peticionario solicitó al foro de instancia la eliminación de
las alegaciones de los recurridos, la anotación de la rebeldía,
la prohibición de oponerse o de presentar prueba en oposición de
las alegaciones del peticionario, para que se tomaran como
probados los hechos alegados en la demanda y que se dictara
sentencia en rebeldía en contra de los recurridos.
AC-2020-0082 3
Luego de los correspondientes apercibimientos, la
imposición de sanciones económicas y evaluada las posturas de
las partes, el tribunal de instancia sancionó a los recurridos
con la eliminación de todas las alegaciones mediante Resolución
de 9 de febrero de 2015 (Resolución de 2015). En específico, la
Resolución de 2015 determinó que, conforme a la Regla 34.3(d) de
Procedimiento Civil los recurridos incurrieron en expoliación de
evidencia. Antes de rendir el dictamen con relación a la
solicitud del peticionario, y al cuestionarse sobre cuál era el
remedio apropiado, el Tribunal de Primera Instancia expresó lo
siguiente:
Hay elementos subjetivos de intención, actuación,
propósitos mentales y otros factores que mueven a este
tribunal [a] denegar la petición de [la] parte demandante
de anotar [la] rebeldía y dictar sentencia a los
co-demandados, tampoco queda convencido este Tribunal
[de que] proceda dar por probado el pleito, menos
prohibir a los demandados presentar prueba en oposición
a las reclamaciones incoadas por Mitsubishi Motors Sales
of Caribbean. No obstante, concluye este Tribunal [que]
la parte demandada ha menospreciado el proceso de
descubrir prueba, faltando a la diligencia e incumpliendo
con las múltiples órdenes de este Tribunal dada por los
varios jueces que han atendido este asunto desde el año
2002.
Por tanto, se ordena y quede ordenado la eliminación de
todas las alegaciones de la parte demandada a todos los
efectos legales y sobre todas las controversias objeto
de este litigio.1
Los recurridos acudieron ante el Tribunal de Apelaciones
para revisar la Resolución de 2015 y, al no tener éxito,
impugnaron la determinación ante este Tribunal. Así las cosas,
mediante Sentencia de 27 de septiembre de 2018 (Sentencia de
1 Apelación, Apéndice, págs. 119-120, Resolución de 9 de febrero de 2015
(Resolución de 2015). Valga señalar que el Juez Superior que emitió la
Resolución de 2015 fue el Hon. Miguel Trabas Cuevas.
AC-2020-0082 4
2018),2 confirmamos el dictamen del foro apelativo intermedio.
Resolvimos que los foros a quo no abusaron de su discreción al
excluir todas las alegaciones tras la actitud de indiferencia y
el menosprecio constante de los recurridos de acatar las órdenes
del foro primario para descubrir la prueba y haber incurrido en
expoliación.3
Devuelto el caso al tribunal de instancia, las partes
interpretaron de manera distinta el alcance de la Resolución
de 2015. Por un lado, el peticionario alegó que la eliminación de
todas las alegaciones impedía que los recurridos presentaran
prueba a su favor o defensa. Por su parte, los recurridos
plantearon que la Resolución de 2015 reconoció que estos podían
presentar prueba en oposición a los méritos de las reclamaciones
del peticionario y que con la sanción de la supresión total de
las alegaciones este tiene la obligación de presentar prueba
sobre todos los elementos de las causas de acción. El 11 de
febrero de 2020 el foro de instancia emitió una Resolución
(Resolución de 2020) mediante la cual, luego de evaluar nuestra
Sentencia, determinó lo siguiente:
Luego del trámite procesal antes enunciado y tras
un acucioso examen de la sentencia dictada por el más
alto foro, este tribunal aclara que los esposos
codemandados Feliciano-Concepción y Guilbe Ortiz, y sus
respectivas sociedades legales de bienes gananciales,
están impedidos de presentar prueba y defensas a su
favor, ello ante la realidad inescapable de que sus
alegaciones le fueron eliminadas y a lo único que
tendrían derecho es a contrainterrogar a la parte
demandante en la vista en rebeldía que en su día ha de
2 Mitsubishi Motors Sales of Caribbean, Inc v. Lunor y otros, CC-2016-0557,
Sentencia, Apéndice, págs. 131-162.
3 Este Tribunal concluyó que los recurridos tenían el deber afirmativo de
custodiar los documentos solicitados y aquellos que pudiesen estar relacionados
con la causa de acción, según lo dispone el ordenamiento jurídico procesal.
AC-2020-0082 5
tener efecto. Igual suerte han de tener en cuanto a la
demanda de coparte instada por el codemandado Milton
Sánchez Ramos, toda vez que ya el tribunal les había
anotado la rebeldía. Tanto la contestación a la demanda
de coparte como la reconvención de los esposos
Feliciano-Concepción y Guilbe Ortiz contra Milton
Sánchez Ramos, se tendrían por no presentadas.4
Los recurridos solicitaron la reconsideración del
dictamen y señalaron que el foro primario les impuso una nueva
sanción a la previamente impuesta, toda vez que en la Resolución
de 2015 no se les anotó la rebeldía. Posteriormente, y a
solicitud del peticionario, el foro de instancia emitió una
Resolución Nunc Pro Tunc a los fines de establecer que
continuarían los procedimientos en rebeldía en cuanto a los
recurridos.
En desacuerdo, los recurridos acudieron al Tribunal de
Apelaciones y reiteraron los planteamientos esbozados en el
tribunal de instancia en cuanto a los efectos de la rebeldía, la
obligación de la parte demandante de presentar prueba sobre todos
los elementos de la causa de acción y la facultad de los
recurridos de presentar prueba para refutar los méritos de la
demanda. Ante este cuadro, los recurridos argumentaron que,
mediante la Resolución de 2020, el foro de instancia violó la
ley del caso al declarar la rebeldía y, con ello, modificar
injustamente las providencias de la Resolución de 2015.
El foro apelativo intermedio revocó al tribunal de
instancia y dispuso que los efectos de la anotación de rebeldía
no son sinónimos ni tienen las mismas consecuencias que acarrean
4 Apelación, Apéndice, pág. 168.
AC-2020-0082 6
la eliminación de todas las alegaciones.5 Antes de concluir que
el foro recurrido erró al modificar y que violó la ley del caso
de la Resolución de 2015, el Tribunal de Apelaciones distinguió
ambas figuras de la manera siguiente:
Una anotación de rebeldía conlleva el que se den
por admitidos todos los hechos bien alegados en la
demanda, quedando la parte en rebeldía impedida de
presentar prueba, teniendo que limitarse a
contrainterrogar o presentar planteamientos de derecho.
Por su parte, la eliminación de las alegaciones conlleva,
por ejemplo, la eliminación de toda posible defensa
afirmativa, pero permite presentar prueba que refute los
méritos de la reclamación de la otra parte.6
Inconforme, el peticionario acudió ante esta Curia y
señaló que el Tribunal de Apelaciones erró en la interpretación
de la Resolución de 2015 en cuanto a los efectos de la anotación
de rebeldía y de la eliminación de todas las alegaciones. Luego
de haber expedido el recurso, contar con la comparecencia de
ambas partes y de analizar sus posturas, pasemos a resolver la
controversia que nos ocupa.
II
A lo largo de la existencia del ordenamiento procesal
civil en nuestra jurisdicción, los tribunales han estado
facultados para imponer una serie de sanciones contra aquella
parte que incumpla una orden del tribunal.7 Las sanciones son un
mecanismo procesal que permite a los tribunales imponer su
5 Sentencia del Tribunal de Apelaciones, Apelación, Apéndice, págs. 196.
6 Sentencia del Tribunal de Apelaciones, Apelación, Apéndice, págs. 196-197.
7 HRS Erase, Inc. v. Centro Médico del Turabo, Inc., 205 DPR 689, 699 (2020).
AC-2020-0082 7
jurisdicción, autoridad y pronunciamientos.8 Estas tienen el
objetivo de incitar a una parte a que responda con prontitud con
el fin de alcanzar la solución justa, rápida y económica de los
casos y que las controversias se puedan atender en los
méritos.9 En ese sentido, el poder inherente de los tribunales
para imponer sanciones permite la flexibilidad para escoger la
sanción y ajustarla a los hechos, a la causa de acción de que se
trate y al propósito que se persigue.10
A. Regla 34 de Procedimiento Civil
La Regla 34 de Procedimiento Civil establece el
procedimiento que las partes y el tribunal deben seguir ante una
controversia relacionada al descubrimiento de prueba11 y postula
las consecuencias para la parte que se rehúsa a cumplir con una
orden del tribunal de instancia al respecto. La negativa de
obedecer una orden para descubrir prueba está regulada por la
Regla 34.3(b)(3) de Procedimiento Civil y, en lo pertinente,
establece lo siguiente:
(a) Desacato.[…]
8 In re Collazo I, 159 DPR 141, 150 (2003); E.L.A. v. Asociación de Auditores,
147 DPR 669, 681 (1999); Pérez Pascual v. Vega Rodríguez, 124 DPR 529, 535
(1989); Sterzinger v. Ramírez, 116 DPR 762, 787 (1985).
9 Valentín v. Mun. de Añasco, 145 DPR 887, 896 (1998)( “Sanctions are intended
to prompt a party to respond”); Amaro González v. First Fed. Savs., 132 DPR
1042, 1051-1052 (1993).
10 Pagán Rodríguez v. Rivera Schatz, 206 DPR 277, 288 (2021); R. Hernández
Colón, Práctica jurídica de Puerto Rico, Derecho procesal civil, 6ta ed., San
Juan, Ed. Lexis Nexis, 2017, pág. 328.
11Según la Regla 34.1 de Procedimiento Civil el tribunal podrá ordenar que una
parte descubra prueba si la parte interesada presenta una moción en la que
certifique con particularidad que realizó los esfuerzos razonables, con
prontitud y de buena fe para resolver los asuntos que planteó en el escrito y
que, a pesar de ello, no alcanzó resultado alguno con la representación legal
de la parte adversa. Si la parte promovente cumplió, de acuerdo con la Regla
34.2 de Procedimiento Civil esta podrá requerirle al foro primario que, a su
discreción, dicte una orden para obligar a la parte compelida a descubrir lo
solicitado. Véase, Regla 34.1 y 34.2 de Procedimiento Civil, 32 LPRA Ap. V.
AC-2020-0082 8
(b) Otras consecuencias.-Si una parte o un(a)
funcionario(a) o agente administrador(a) de una parte, o
una persona designada para testificar a su nombre según
disponen las Reglas 27.6 ó 28 de este apéndice, deja de
cumplir una orden para llevar a cabo o permitir el
descubrimiento de prueba, incluyendo una orden bajo las
Reglas 32 y 34.2 de este apéndice, el tribunal podrá
dictar, con relación a la negativa, todas aquellas
órdenes que sean justas; entre ellas las siguientes:
(1) […]
(2) […]
(3) Una orden para eliminar alegaciones o parte de ellas,
o para suspender todos los procedimientos posteriores
hasta que la orden sea acatada, o para desestimar el
pleito o procedimiento o cualquier parte de ellos, o para
dictar una sentencia en rebeldía contra la parte que
incumpla. 12
A través del inciso (b)(3) el tribunal puede sancionar
con la eliminación total o parcial de las alegaciones. Sin
embargo, igual que la desestimación de la demanda, la eliminación
de las alegaciones y la rebeldía son el castigo más severo para
la parte que declina obedecer una orden para descubrir prueba.13
La imposición de estas sanciones “siempre se debe[n] dar dentro
del marco de lo que es justo, y la ausencia de tal justicia
equivaldría a un abuso de discreción”.14
Por tal razón, antes de ordenar la desestimación del
pleito o la eliminación de las alegaciones, el tribunal tiene
que ejecutar el orden de prelación que establece la Regla 39.2(a)
de Procedimiento Civil, 32 LPRA Ap. V.15 Primero, el tribunal
tiene que apercibir de la situación a la representación legal de
12 Regla 34.3(b)(3) de Procedimiento Civil, 32 LPRA AP. V. (Énfasis suplido).
13HRS Erase, Inc. v. Centro Médico del Turabo, Inc., supra, pág. 700; Amaro
González v. First Fed. Savs., supra, pág. 1050.
14 Rivera Figueroa v. Joe's European Shop, 183 DPR 580, 590 (2011).
15 Véase Maldonado v. Srio. de Rec. Naturales, 113 DPR 494, 498 (1982).
AC-2020-0082 9
la parte y concederle la oportunidad para responder. Si el
representante legal no responde al apercibimiento, el tribunal
le impondrá sanciones y le notificará directamente a la parte
sobre el asunto.16 Una vez que la parte haya sido informada o
apercibida de la situación y de las consecuencias que el
incumplimiento conlleva, deberá corregirla dentro del término
que el tribunal de instancia le conceda. El plazo conferido será
razonable y, salvo que las circunstancias del caso lo
justifiquen, no será menor de treinta días. Si la parte no toma
acción correctiva al respecto “nunca se podrá querellar, ante
ningún foro, de que se le despojó injustificadamente de su causa
de acción y/o defensas.”17 Cumplido este trámite, el tribunal se
encontrará en posición para imponer la sanción que corresponda.
La Regla 39.2(c) de Procedimiento Civil establece que, a
excepción de la desestimación por falta de jurisdicción sobre la
materia o parte indispensable o a menos que el tribunal disponga
lo contrario, el efecto de la desestimación es la adjudicación
en los méritos. Nótese que de la Regla 39.2(a) de Procedimiento
Civil surge que la desestimación es la muerte procesal del
pleito.18 Sin embargo, nada dispone sobre qué procede en el
16 HRS Erase, Inc. v. Centro Médico del Turabo, Inc., supra.
17HRS Erase, Inc. v. Centro Médico del Turabo, Inc., supra, 702; Maldonado v.
Srio. de Rec. Naturales, supra. Véanse Echevarría Jiménez v. Sucn. Pérez Meri,
123 DPR 664, 673–674 (1989); Acevedo v. Compañía Telefónica de P.R., 102 DPR
787, 791 (1974); Arce v. Club Gallístico de San Juan, 105 DPR 305 (1976);
Garriga Gordils v. Maldonado Colón, 109 DPR 817, 822-823 (1980).
18 VS PR, LLC v. Drift-Wind, Inc., 207 DPR 253, 264 (2021); R. Hernández
Colón, Práctica jurídica de Puerto Rico: derecho procesal civil, 6ta ed., San
Juan, Ed. LexisNexis, 2017, pág. 250. En caso de ser una desestimación parcial
se trata de la muerte procesal de una de las reclamaciones acumuladas en una
demanda u otras alegaciones permitidas. Reglas 14.1 y 42.3 de Procedimiento
Civil, 32 LPRA Ap. V.
AC-2020-0082 10
pleito luego de la sanción de eliminación de todas las
alegaciones de la parte demandada.
B. Eliminación de las alegaciones
Hace más de un siglo, explicamos las implicaciones que
tiene la orden para eliminar la alegación de la parte demandada.
En Polo v. Domínguez, Juez de Distrito, 15 DPR 609 (1909), el
secretario del foro primario interpretó que la orden para excluir
la contestación a la demanda enmendada era literalmente extraerla
de los autos. En esa oportunidad explicamos que:
“las palabras ‘suprimir‘ o ‘eliminar‘ solo quieren
decir, en este caso, considerar al instrumento sin efecto
alguno, y que debe pasarse por alto y no usarse o
considerarse en el juicio; pero el documento mismo debe
quedar en los autos para información de todos los
interesados”.19
En Polo, supra, al abundar respecto a esa sanción
reconocimos que ante la ausencia de la alegación de la parte
demandada, se podía dictar sentencia en su contra. Años más
tarde, en Acevedo v. Compañía Telefónica de Puerto Rico, 102 DPR
787, 791 (1974) expusimos que
eliminar todas las alegaciones de la demandada priva a
un litigante de su día en corte para establecer la
legitimidad y el mérito de su defensa, lo cual solamente
debe hacerse en casos tan extremos que no haya duda de
la irresponsabilidad o contumacia de la parte contra
quien se toman las medidas drásticas.20
En otras palabras, de acuerdo con Polo, supra, con la
supresión total de las alegaciones, la contestación a la demanda
perdía eficacia jurídica en el litigio. En vista de que esta
alegación no se puede utilizar en el juicio ni el tribunal la
19 Polo v. Domínguez, 15 DPR 607 (1909). (Énfasis nuestro).
20 Acevedo v. Compañía Telefónica de P.R., supra. (Énfasis suplido).
AC-2020-0082 11
puede tomar en cuenta, según Acevedo, supra, el efecto mortal es
que la parte demandada quedó privada de su día en corte para
establecer la legitimidad y el mérito de su defensa.21 En atención
a este resultado, al igual que la desestimación, el castigo de
la exclusión total de las alegaciones debe prevalecer únicamente
en situaciones extremas.22 Hemos recopilado que este nivel de
sanción debe ser la repercusión de una conducta indiscutiblemente
irresponsable, irreverente, desafiante, negligente, contumaz que
la parte contra la cual se ordena la ejecute de manera reiterada
y continua; todo porque esta optó por incumplir de manera
intencional y de mala fe con una orden del tribunal para
descubrir prueba.23
C. La eliminación de las alegaciones y su relación con la
rebeldía
En Arce v. Club Gallístico de San Juan, 105 DPR 305, 308
(1976) reafirmamos los méritos de la facultad sancionadora de
los tribunales y la idoneidad de la proporción del castigo al
momento de imponerse, pero además señalamos lo siguiente:
Nuestras decisiones han estado dirigidas a
fortalecer el poder de las Salas de instancia para
aligerar los procedimientos, si necesario fuere mediante
la drástica sanción de decretar la desestimación y
archivo de la demanda de la parte actora y, según sea el
caso, eliminar las alegaciones de la parte demandada,
declararla en rebeldía y resolver la causa en su contra.
No vamos a aflojar esa norma en lo más mínimo. Pero tiene
21Valentín v. Mun. de Añasco, supra.; Acevedo v. Compañía Telefónica de P.R.,
supra, pág. 791; Polo v. Domínguez, 15 DPR 607 (1909).
22Mejías v. Carrasquillo, 185 DPR 288, 298 (2012); Mun. de Arecibo v. Almac.
Yakima, 154 DPR 217, 222–223 (2001).
23Valentínv. Mun. de Añasco, supra, págs.895-896(citando Acevedo v. Compañía
Telefónica de Puerto Rico, supra; Dorsey v. Academy Moving & Storage, Inc.,
423 F.2d 858 (5to Cir. 1970); In re Paoli R.R. Yard PCB Litigation, 35 F.3d
717 (3er Cir. 1994); Jackson v. Harvard University, 900 F.2d 464 (1er Cir.
1990). Hartman v. Tribunal Superior, 98 DPR 124 (1969)).
AC-2020-0082 12
por necesidad que aplicarse en cada caso conforme a sus
particulares hechos y perspectivas.24
Por otro lado, la Regla 45.1 de Procedimiento Civil
gobierna la anotación de rebeldía y, al respecto, provee que:
Cuando una parte contra la cual se solicite una sentencia
que concede un remedio afirmativo haya dejado de
presentar alegaciones o de defenderse en otra forma según
se dispone en estas reglas, y este hecho se pruebe
mediante una declaración jurada o de otro modo, el
Secretario o Secretaria anotará su rebeldía.
El tribunal a iniciativa propia o a moción de parte,
podrá anotar la rebeldía a cualquier parte conforme a la
Regla 34.3(b)(3) de este apéndice.
Dicha anotación tendrá el efecto de que se den por
admitidas las aseveraciones de las alegaciones
afirmativas, sujeto a lo dispuesto en la Regla 45.2(b)
de este apéndice.
La omisión de anotar la rebeldía no afectará la validez
de una sentencia dictada en rebeldía.25
El primer párrafo permite la anotación de la rebeldía por
incomparecencia y esto ocurre cuando la parte demandada no
comparece después de haber sido emplazado, no se defiende
mediante moción ni presenta oportunamente la contestación a la
demanda.26 Entretanto, el segundo párrafo de la Regla 45.1 de
Procedimiento Civil autoriza a que, de acuerdo con la Regla
34.3(b)(3) de Procedimiento Civil, el tribunal anote la rebeldía
como sanción. Es decir, el foro primario debe declarar incurso
en rebeldía a la parte demandada si esta “se niega a descubrir
24Arce v. Club Gallístico de San Juan, supra, pág. 308; Secretario del Trabajo
v. Mayagüez O.M. Club, 105 DPR 279, 283 (1976). (Énfasis suplido).
25 Regla 45.1 de Procedimiento Civil, 32 LPRA Ap. V. (Énfasis suplido). La
anotación de la rebeldía es una nota en el expediente que toma el secretario
en la que afirma que la parte demandada no compareció en el término
correspondiente. Lawton v. Porto Rico Fruit Exchange, 42 DPR 291, 295 (1931).
Véase R. Hernández Colón, Práctica jurídica de Puerto Rico, Derecho procesal
civil, 6ta ed., San Juan, Ed. Lexis Nexis, 2017, pág. 328.
26 Rivera Figueroa v. Joe's European Shop, supra, pág. 589; Álamo v.
Supermercado Grande, Inc., 158 DPR 93, 100 (2002).
AC-2020-0082 13
su prueba después de habérsele requerido mediante los métodos de
descubrimiento de prueba, o simplemente cuando una parte ha
incumplido con alguna orden del tribunal”.27 Tan pronto se
declare la rebeldía “se dan por admitidos todos los hechos bien
alegados en la demanda o la alegación que se haya formulado en
contra del rebelde y se autoriza al tribunal para que dicte
sentencia, si esta procede como cuestión de derecho.”28
En lo concerniente al trámite de la sentencia en rebeldía
que dicta el tribunal de instancia, la Regla 45.2(b) de
Procedimiento Civil postula lo siguiente:
Podrá dictarse sentencia en rebeldía en los casos
siguientes:
(a) Por el Secretario o Secretaria. […]
(b) Por el tribunal. En todos los demás casos la parte
con derecho a una sentencia en rebeldía la solicitará
del tribunal, pero no se dictará sentencia en rebeldía
contra un(a) menor o una persona incapacitada a menos
que estén representados(as) por el padre, madre,
tutor(a), defensor(a) judicial u otro(a) representante
que haya comparecido en el pleito. Si para que el
tribunal pueda dictar sentencia [en rebeldía] o para
ejecutarla se hace necesario fijar el estado de una
cuenta, o determinar el importe de los daños, o comprobar
la veracidad de cualquier aseveración mediante prueba o
hacer una investigación de cualquier otro asunto, el
tribunal deberá celebrar las vistas que crea necesarias
y adecuadas o encomendar la cuestión a un comisionado o
comisionada. Cuando la parte contra la cual se solicita
sentencia en rebeldía haya comparecido en el pleito,
dicha parte será notificada del señalamiento de cualquier
vista en rebeldía que celebre.29
27 Rivera Figueroa v. Joe's European Shop, supra, pág. 588.
28 Rivera Figueroa v. Joe's European Shop, supra, pág. 590. Resaltamos, por
ejemplo, que por la naturaleza sumaria de la Regla 60 de Procedimiento Civil,
32 LPRA Ap. V., “no podemos dar por admitidos los hechos alegados en la demanda
y así obviar la presentación de la prueba sobre el particular.” Primera
Cooperativa De Ahorro v. Hernández Hernández, 205 DPR 624, 632 (2020) citando
Asoc. Res. Colinas Metro. v. S.L.G., 156 DPR 88, 96 (2002). (Énfasis suplido).
29De acuerdo con la Regla 45.2(a) de Procedimiento Civil, 32 LPRA Ap. V, la
rebeldía que puede decretar el secretario del Tribunal de Primera Instancia se
limita a los casos que involucre el cobro de dinero cuya suma reclamada sea
por una suma líquida o liquidable mediante cómputos acreditada por una
AC-2020-0082 14
En este punto resulta ilustrativo el caso de Continental
Ins. Co. v. Isleta Marina, 106 DPR 809 (1978). Este caso se trató
de una demanda por daños y perjuicios en la que, ante el
incumplimiento de una orden para descubrir prueba, el tribunal
ordenó la eliminación de todas las alegaciones de la parte
demandada. Inmediatamente, el foro primario señaló y celebró una
vista en rebeldía. Ese día, la parte demandante no se preparó
para presentar prueba sobre las alegaciones, pues descansó en
que el tribunal de instancia suprimió todas las alegaciones de
la parte demandada y que la vista era en rebeldía. Sin embargo,
el foro de instancia dictó sentencia en la que declaró sin lugar
la demanda, fundamentado en que la parte demandante no presentó
prueba sobre todos los elementos de la causa de acción.
En esa oportunidad, al revocar la determinación del foro
primario, nos expresamos sobre la institución de la sentencia
dictada en rebeldía. Expusimos la norma reiterada de que un
trámite en rebeldía -por incomparecencia o como sanción- tiene
la repercusión de que se estimen aceptadas y ciertas todas las
materias bien alegadas en la demanda.30 Definimos que el concepto
de “materias bien alegadas” significa que se consideran admitidos
los hechos correctamente alegados y el tribunal tiene que evaluar
si de esas alegaciones existen los elementos de la causa de
declaración jurada. Asimismo, el secretario del tribunal de instancia no podrá
dictar una sentencia en rebeldía en una acción en cobro de dinero presentada
en contra de un menor o incapacitado ni contra el Estado o sus funcionarios en
su carácter oficial. Véanse Reglas 45.2(a) y 45.5 de Procedimiento Civil.
30 Continental Ins. Co. v. Isleta Marina, 106 DPR 809, 815 (1978).
AC-2020-0082 15
acción y amerita el remedio solicitado.31 Igualmente, reiteramos
nuestros pronunciamientos de Rivera v. Goytía, 70 PDR 30, 33
(1949) concernientes a los derechos con los que cuenta el
rebelde.
[C]on referencia a una parte demandada en rebeldía --que
ha comparecido previamente-- le cobija el derecho a
conocer del señalamiento, asistir a la vista,
contrainterrogar los testigos de la parte demandante,
impugnar la cuantía y apelar la sentencia. No renuncia a
las defensas de falta de jurisdicción ni de que la
demanda no aduce hechos constitutivos de una causa de
acción en favor del reclamante. […] En otras palabras,
un trámite en rebeldía no garantiza [per se], una
sentencia favorable al demandante; el demandado no admite
hechos incorrectamente alegados como tampoco
conclusiones de derecho.32
En cuanto a la sentencia en rebeldía que solo el tribunal
puede emitir, expresamos lo siguiente:
[L]a facultad del Secretario para dictar una sentencia
en rebeldía está limitada[…]. Como corolario, cualquier
otra sentencia en rebeldía tiene que ser dictaminada por
el tribunal, que puede emitirla aun habiendo comparecido
el demandado, irrespectivamente de si la cuantía es
líquida o no. Ello incluye daños para lo cual puede
señalar vista, exigiendo prueba para ‘determinar [su]
importe …, o comprobar la veracidad de cualquier
aseveración.‘ […]. Resulta obvio, que los tribunales no
son meros autómatas obligados a conceder indemnizaciones
por estar dilucidándose un caso en rebeldía. Para el
descargo de tan delicado ministerio, la ley reconoce que
el proceso de formar consciencia judicial exige la
comprobación ‘de cualquier aseveración‘ mediante prueba.
A tal efecto, el tribunal ‘deberá celebrar las vistas
que crea necesarias y adecuadas.33
En Continental, supra, nos percatamos que, contrario a la
determinación del tribunal de instancia y a pesar de la pobre
redacción, las alegaciones expuestas por la parte demandante
31 Álamo v. Supermercado Grande, Inc., supra, pág. 101; Continental Ins. Co.
v. Isleta Marina, supra, págs. 815-816; Rivera v. Insular Wire Products Corp.,
140 DPR 912 (1996).
32 Continental Ins. Co. v. Isleta Marina, supra, págs. 816-817. (Énfasis
suplido)(Citas omitidas).
33 Íb.
AC-2020-0082 16
resultaban suficientes para dictar la sentencia en rebeldía y
conceder la demanda. Colegimos que, con la eliminación de todas
las alegaciones y la anotación de la rebeldía, era razonable que
la parte demandante descansara en las alegaciones de la demanda
y, a excepción de la cuantía de daños, esta podía prescindir de
presentar prueba sobre la negligencia y nexo causal que provocó
los daños reclamados.
Acto seguido, reconocimos que el tribunal tiene discreción
para solicitarle a la parte demandante la comprobación de la
veracidad de cualquier aseveración. Sin embargo, aclaramos que
el foro primario tiene que advertirle de su intención al momento
de notificar el señalamiento de la vista en rebeldía. De lo
contrario, se incurre en un error que, tal como procedimos,
amerita la revocación de la sentencia. Respecto al planteamiento
principal del caso de autos, obsérvese dos asuntos: En primer
lugar, inmediatamente después de que el tribunal de instancia
ordenó la eliminación de todas las alegaciones de la parte
demandada operó el mecanismo de la rebeldía en la continuación
del trámite procesal ante el foro primario. En segundo término,
la única prueba impugnatoria que puede presentar la parte
demandada es aquella relacionada a la cuantía de los daños
reclamados, pues resolvimos que esta siempre será objeto de
prueba. Cónsono con lo anterior, hemos resuelto que la parte
demandada incursa en rebeldía renuncia a su derecho de “presentar
AC-2020-0082 17
prueba contra las alegaciones de la demanda, y a levantar sus
defensas afirmativas.”34
A pesar de nuestros pronunciamientos en Continental,
supra, es la primera vez que nos corresponde explicar por qué se
debe tramitar un pleito en rebeldía luego de la orden para
suprimir todas las alegaciones de la parte demandada, si la
redacción de la Regla 34.3(b)(3) de Procedimiento Civil separa
ambas sanciones.
De entrada, parte de la Regla 34.3(b)(3) de Procedimiento
Civil proviene de la Regla 37(b)(2)(A) de las Reglas de
Procedimiento Civil Federal.35 Al igual que en la nuestra, la
redacción de la aludida regla federal separa las sanciones de
eliminación de las alegaciones de la parte demandada y la
sentencia en rebeldía. A pesar de tal división, desde Hammond
Packing Company v. State of Arkansas, 212 U.S. 322 (1909), se
resolvió que procede un dictamen en rebeldía luego de excluir
las alegaciones del promovido por incumplir con una orden para
descubrir prueba.36 El Tribunal Supremo Federal reconoció que
la autoridad para proceder de esa manera provenía de la
presunción de que los hechos materiales se admiten al no
34 Rodríguez v. Tribunal Superior, 102 DPR 290, 294 (1974). En Álamo v.
Supermercado Grande, Inc., supra, pág. 104, resolvimos que un demandado al que
se le anota la rebeldía renuncia tácitamente a la oportunidad de levantar la
defensa afirmativa de prescripción ni puede atacar la insuficiencia de una
alegación en torno a la omisión de la fecha de los hechos.
35 Secretariado de la Conferencia Judicial y Notarial, Informe de Reglas de
Procedimiento Civil, Tribunal Supremo de Puerto Rico, marzo 2008, pág. 372.
36 Hammond Packing Company v. State of Arkansas, 212 U.S. 322, 351 (1909)
(“[T]the law of the United States, as well as the laws of many of the states,
afford examples of striking out pleadings and adjudging by default for a
failure to produce material evidence). Véase, Notas de 1930 del Comité asesor
de la Regla 37 de las Reglas de Procedimiento Civil Federal.
AC-2020-0082 18
contestarse la demanda tal como sucede con la alegación
responsiva donde la parte no afirma o declara sus derechos
conforme lo dispone la ley.37 Esta determinación nos ofrece un
razonamiento cónsono con los efectos de la rebeldía discutidos
en Continental, supra, nuestras expresiones en Polo, supra,
Acevedo, supra y Arce, supra, y de las consecuencias que postulan
las Reglas 6.2 a la 6.4 de Procedimiento Civil concernientes al
ejercicio de negar y formular defensas afirmativas que debe
cumplir la parte demandada. Veamos.
Una demanda tiene que incluir: “(1) una relación sucinta
y sencilla de los hechos que demuestran que procede el remedio
solicitado, y (2) la solicitud del remedio que se alega debe
concederse.”38 Los hechos materiales alegados tienen que
demostrar de su faz que, de probarse, hacen a la parte demandante
acreedora del remedio solicitado.39 Entretanto, mediante el
ejercicio de negar, la contestación a la demanda ataca las
aseveraciones en las cuales descansa la parte demandante40 y con
37 Hammond Packing Company v. State of Arkansas, 212 U.S. 322,
supra.(“[T]herefore, the power exerted below was like the authority to default
or to take a bill for confessed because of a failure to answer, based upon a
presumption that the material facts alleged or pleaded were admitted by not
answering, and might well also be illustrated by reference to many other
presumptions attached by the law to the failure of a party to a cause to
specially set up or assert his supposed rights in the mode prescribed by law”).
Véase CIA Petrolera Caribe, Inc. v. ABBA Service Center, 116 F.R.D. 90 (1987);
National Hockey League v. Metropolitan Hockey Clubs, 427 U.S. 639, 642-643, 96
S.Ct. 2778, 49 L.Ed.2d 747 (1976). (La conducta de una parte demandada de
obstruir o impedir los intentos de la parte demandante de descubrir prueba y
desobedecer las órdenes que al respecto emita un juez, provoca la eliminación
de las alegaciones y la anotación de rebeldía).
38 Conde Cruz v. Resto Rodríguez, 205 DPR 1043, 1062 (2020). Regla 6.1 de
Procedimiento Civil, 32 LPRA Ap. V.
39 Santiago Ortiz v. Real Legacy Assurance Company, Inc., 206 DPR 194, 207
(2021).
40 Conde Cruz v. Resto Rodríguez, supra, págs. 1062–1063. Regla 6.2(a) de
Procedimiento Civil, 32 LPRA Ap. V.
AC-2020-0082 19
las defensas afirmativas que formula procura “derrotar la
reclamación presentada en su contra”.41 El ejercicio de negar y
de formular las defensas afirmativas, permite que la parte
demandada se escude al exponer su versión con hechos
demostrativos de que la reclamación no procede y que le asisten
las defensas.
Así que, si la parte demandada contesta la alegación de
manera oportuna, pero en esta no niega las aseveraciones
contenidas en la demanda que requieran respuesta y que no se
refieran al monto de daños, estas se tendrán por admitidas.42
Igualmente, salvo falta de jurisdicción y parte indispensable,
las defensas afirmativas que no se instauren en la contestación
a la demanda, se entienden renunciadas.43 Vemos que si la parte
demandada no procede conforme lo dispone el ordenamiento jurídico
procesal civil, opera una presunción contraria para la defensa
de su versión de los hechos.
La gravedad de la sanción para la exclusión total de las
alegaciones por incumplir con una orden para descubrir prueba
consiste en que la parte demandada sí tuvo la intención de
defenderse. Sin embargo, según Polo, supra, Acevedo, supra, y
las Reglas 6.2 a la 6.4 de Procedimiento Civil, excepto por el
reclamo en daños, las aseveraciones que la parte demandada negó
y las defensas afirmativas que formuló en la alegación
41 Rio Mar Community Association, Inc. v. Mayol Bianchi, 208 DPR 100, 111
(2021).
42 La Regla 6.4 de Procedimiento Civil, 32 LPRA Ap. V, establece que “las
aseveraciones contenidas en cualquier alegación que requiera una alegación
responsiva y que no se refieran al monto de daños, se considerarán admitidas
si no fueran negadas en la alegación responsiva.”(Énfasis suplido).
43 Véase Reglas 6.3, 10.2 y 10.8(c) de Procedimiento Civil, 32 LPRA Ap.V.
AC-2020-0082 20
responsiva, quedaron sin efecto y, por ende, no estarán a su
disposición en el juicio ni el tribunal las tomará en
consideración. Dicho de otra manera, quedaron admitidas las
aseveraciones negadas y las defensas afirmativas levantadas se
entienden renunciadas o por no puestas. En concreto, el
equivalente procesal de la eliminación de todas las alegaciones
de la parte demandada es como si esta no hubiera contestado
alegación alguna y se allanara al litigio presentado en su
contra.44
No podemos perder de perspectiva que nuestro ordenamiento
contempla la rebeldía en dos escenarios separados con propósitos
distintos –-por incomparecencia o como sanción--.
Irrespectivamente de que la redacción de la Regla 34.3(b)(3)
separe las sanciones de la eliminación de todas las alegaciones
y la sentencia en rebeldía, es incuestionable que anotar la
rebeldía por incomparecencia es una consecuencia lógica cuando
se carece de alegaciones. Definitivamente, el examen detallado
de Continental, supra, y el análisis sobre las alegaciones
responsivas esbozado revela, tal como expresamos categóricamente
hace más de cuarenta años en Arce, supra, que luego de una orden
para eliminar todas las alegaciones de la parte demandada procede
“declararla en rebeldía y resolver la causa en su contra.” Esta
norma no debe cambiar, más bien la reiteramos. Sobre este
particular y al palio de las Reglas de Procedimiento Civil
44Cuando la parte demandada resulta sancionada con la eliminación de todas las
alegaciones se refiere a la contestación a la demanda, contestación a la
demanda contra coparte, contestación a la demanda contra tercero y, en caso de
que formule una reconvención, esta conlleva la desestimación.
AC-2020-0082 21
aprobadas hace más de una década, el Prof. Rafael Hernández Colón
señaló lo siguiente:
La eliminación de alegaciones puede ser de la totalidad
o de una reclamación de una demanda con dos o más
reclamaciones o de una reconvención o de una parte de
una reclamación, o de una defensa afirmativa. Cuando la
sanción es parcial supone que el proceso ha de continuar.
[…] [S]i el tribunal impone la sanción de la eliminación
de la totalidad de las alegaciones lo que procede es
desestimar la demanda o dictar sentencia en rebeldía.45
De lo anterior se puede colegir que el castigo de la
supresión total de las alegaciones conlleva directamente a la
sanción de la sentencia en rebeldía. A su vez, los tribunales
apelativos estamos llamados a inclinarnos a decretar las
consecuencias de la rebeldía cuando el tribunal de instancia
ordena la eliminación de todas las alegaciones, específicamente
si la sanción fue producto de la conducta malintencionada de la
parte demandada de no descubrir prueba. 7 Moore’s Federal
Practice Sec. 37.51[4] (3.ra ed. 2023) (“If a sanctions order
strikes an entire pleading, appellate courts are likely to impose
the same constraints that they impose on dismissal or default
sanctions orders. Specifically, the disobedient party's conduct
must be a result of bad faith, willfulness, or substantial
fault.”) (Énfasis suplido). Ahora, la pregunta obligada es, si
es así, ¿para qué se debe celebrar una vista en rebeldía?
De ordinario, la anotación de la rebeldía precede al
señalamiento de la vista en cuestión.46 Previo a la
45 R. Hernández Colón, Práctica jurídica de Puerto Rico, Derecho procesal civil,
6ta ed., San Juan, P.R., Ed. Lexis Nexis, 2017, págs. 375-376. (Énfasis suplido)
46El último párrafo de la Regla 45.1 de Procedimiento Civil dispone que
“La omisión de anotar la rebeldía no afectará la validez de una sentencia
dictada en rebeldía.”
AC-2020-0082 22
calendarización de la audiencia, el tribunal de instancia debe
haber evaluado si los hechos materiales de la demanda están bien
alegados, si estos proceden como cuestión de derecho y no
contienen alegaciones concluyentes.47 Con arreglo a la Regla
45.2(b) de Procedimiento Civil y a Continental, supra, el
tribunal celebrará la vista en rebeldía para la determinación
del importe de daños y si, habiéndolo advertido previamente a la
parte demandante, desea comprobar la veracidad de cualquier
aseveración respecto al remedio solicitado en la demanda, el
tribunal deberá celebrar las vistas que crea necesarias y
adecuadas a esos efectos.48 Esta prueba exigida a la parte
demandante permitirá que el tribunal se encuentre en posición
para dictar una sentencia en rebeldía conforme a derecho. Por lo
tanto, es forzoso reiterar la conclusión de que la parte
demandada no tiene el derecho a refutar los méritos de la demanda
en la vista en rebeldía.49
III
El peticionario nos plantea que la noción de permitir que
los recurridos puedan presentar prueba para refutar los méritos
de la demanda choca con la orden de supresión total de las
alegaciones que confirmamos mediante la Sentencia de 2018.
Argumenta que esta sanción tuvo lugar, por incumplir las órdenes
47 Rivera v. Insular Wire Products Corp., 140 DPR 912, 931
(1996); Continental Ins. Co. v. Isleta Marina, supra, pág. 817.
48Íb.; Regla 45.2(b) de Procedimiento Civil, supra; Continental Ins. Co.
v. Isleta Marina, supra.
497 Moore’s Federal Practice Sec. 37.51[4] (3.ra ed. 2023) (“For example,
the effect of an order striking an entire pleading would appear to be no
different than the effect of a preclusion order prohibiting the
disobedient party from supporting or opposing particular claims or
defenses.”) (Énfasis suplido).
AC-2020-0082 23
del tribunal y porque se determinó que los recurridos incurrieron
en expoliación de evidencia con prueba que el peticionario
necesitaba para establecer su causa de acción. Reclama, por lo
tanto, que los procedimientos continúen en rebeldía, tal como
resolvió la Resolución de 2020.
Por su parte, los recurridos argumentaron, y así lo
entendió el foro apelativo intermedio, que “la redacción de la
Regla 34.3(b)(3) de Procedimiento Civil tiene la intención de
dividir las consecuencias de las sanciones. Por eso exponen que,
a pesar de que la Resolución de 2015 les suprimió todas las
alegaciones, pueden presentar prueba, incluso impugnatoria, para
refutar las alegaciones de la demanda y obligar al peticionario
a satisfacer con prueba todos los elementos de las causas de
acción. Aducen, sin embargo, que con la anotación de rebeldía en
la Resolución de 2020, se darían por admitidos todos los hechos
alegados en la demanda y que esta constituyó una nueva sanción
que violó la ley del caso de la Resolución de 2015.
De entrada, surge del expediente que, el juez que emitió
la Resolución de 2015 expresamente rechazó anotar la rebeldía
porque entendió necesario que el peticionario desfilara prueba
sobre varios elementos de la causa de acción. No obstante, el
foro primario suprimió todas las alegaciones de los recurridos50
50Las alegaciones suprimidas son: la contestación a la demanda enmendada; la
demanda de coparte que presentaron en contra de los demandados Lunor, el
Sr. Norberto Seda Ortiz y la Sra. Myrna Olmo Velázquez y la Sociedad Legal de
Gananciales compuesta por ellos resultó desestimada; la contestación a la
demanda de coparte incoada por el señor Sánchez Ramos; la reconvención que los
recurridos formularon en contra del señor Sánchez Ramos. Surge de la Resolución
de 2020 que, en cuanto a las últimas dos alegaciones, el tribunal de instancia
las tendría por no puestas porque el foro primario les había anotado la
rebeldía.
AC-2020-0082 24
y, como mencionamos, en nuestra Sentencia de 2018 confirmamos
que no hubo abuso de discreción en su proceder.
La controversia respecto al alcance de la Resolución de
2015 se desarrolló en la etapa de juicio ante otra jueza. La
Resolución de 2020 mantuvo la supresión de todas las alegaciones
pronunciadas en la Resolución de 2015 y dilucidó que, ante esa
inescapable realidad, procedía continuar los procedimientos en
rebeldía. Por lo tanto, la Resolución de 2020 no violó la ley
del caso sino que aclaró la eficacia de la Resolución de 2015 y,
con ello, se evitó que una confusión jurídica produjera un
resultado evidentemente injusto.51
En lo concerniente al planteamiento principal, según
intimamos, es incuestionable la relación intrínseca entre los
efectos procesales de la eliminación de todas las alegaciones de
la parte demandada y la declaración y los trámites posteriores
en rebeldía que regulan las Reglas 34.3(b)(3) y 45.2(b) de
Procedimiento Civil, respectivamente. A raíz de la eliminación
de todas las alegaciones, las aseveraciones que los recurridos
negaron, se tendrán por admitidas y las defesas afirmativas
formuladas, por no puestas. Los recurridos quedaron privados de
51 En Cacho Pérez v. Hatton Gotay, 195 DPR 1, 9–10 (2016) expresamos que la
doctrina de la ley del caso “no es un mandato inflexible, sino que recoge
la costumbre deseable de que las controversias adjudicadas por un tribunal
sean respetadas. […] En situaciones excepcionales, si el caso vuelve ante
la consideración del tribunal y este entiende que sus determinaciones
previas son erróneas y pueden causar una grave injusticia, ese foro puede
aplicar una norma de derecho distinta.[citas omitidas]. En Núñez Borges
v. Pauneto Rivera, 130 DPR 749, 755 (1992), este Tribunal sostuvo,
haciendo referencia a lo resuelto en Torres Cruz v. Municipio de San Juan,
103 DPR 217, 222 (1975), que un segundo juez de un foro primario podía
cambiar la determinación de un primer juez en el mismo caso si esta
produce resultados claramente injustos.” (Énfasis suplido) Véase 7 Moore’s
Federal Practice, supra.
AC-2020-0082 25
establecer en el juicio la legitimidad y los méritos de su
defensa. Recalcamos, que esta sanción es como si literalmente
los recurridos no hubiesen presentado las alegaciones que el
tribunal de instancia excluyó en la Resolución de 2015.
Ciertamente, al igual que la desestimación, las advertencias
sobre la supresión total de las alegaciones por incumplimiento
con una orden para descubrir prueba no pueden tomarse de manera
liviana pues “son medidas drásticas que chocan con nuestra
política pública a favor de que los casos se ventilen en sus
méritos”.52
Por lo tanto, habida cuenta de que tienen las mismas
consecuencias, concluimos que el tribunal de instancia actuó
correctamente al anotar la rebeldía y señalar la vista para
continuar los procedimientos en rebeldía en cuanto a los
recurridos. En consideración a que el ordenamiento procesal civil
no advierte de manera expresa los efectos procesales que acarrea,
es propicio que a la eliminación de todas las alegaciones le
extendamos la normativa concerniente a la sanción de la sentencia
en rebeldía que gobierna la Regla 45.2(b) de Procedimiento Civil
y las pautas jurisprudenciales al respecto.
Así, en cuanto al peticionario, este podrá descansar en
las materias bien alegadas en la demanda, pues el tribunal las
considerará ciertas, admitidas y probadas. En el presente caso,
la jueza que preside los procedimientos señaló el juicio en
rebeldía en cuanto a los recurridos y, contrario al juez
anterior, se encuentra en posición para celebrarlo sin la
52 HRS Erase, Inc. v. Centro Médico del Turabo, Inc., supra, pág. 701.
AC-2020-0082 26
necesidad de requerirle al peticionario que compruebe la verdad
de cualquier aseveración en la demanda. Por lo tanto, adjudicada
la responsabilidad de los recurridos, el propósito de la vista
en rebeldía es para determinar el importe de los daños, si
alguno.
Por otro lado, los recurridos tienen derecho a:
(1) recibir la notificación de la vista en rebeldía;
(2) contrainterrogar a los testigos del peticionario;
(3) impugnar el importe en daños, pues recalcamos “[b]ajo
cualesquiera de las circunstancias, la cuantía de daños debe ser
objeto de prueba”;53 (4) acudir en apelación; (5) no renunciar a
las defensas de falta de jurisdicción y que la demanda no aduce
hechos constitutivos de una causa de acción; y (6) no admitir
hechos incorrectamente alegados ni las conclusiones de derecho.
Con el examen esbozado no podemos visualizar la distinción
que el foro apelativo intermedio expuso respecto a que la
eliminación de todas las alegaciones conlleva la supresión de
toda defensa afirmativa, pero los recurridos pueden presentar
prueba para refutar los méritos de la reclamación del
peticionario. Resolver de esa manera haría que la sanción de la
eliminación de todas las alegaciones resulte inoficiosa, máxime
cuando la conducta de los recurridos colocaron al peticionario
en un estado de indefensión para promover su causa de acción.
Por lo tanto, contrario a la apreciación del foro apelativo
intermedio, los recurridos no podrán presentar prueba en
53 Continental Ins. Co. v. Isleta Marina, supra, pág. 818.
AC-2020-0082 27
oposición a las alegaciones de la demanda del peticionario en el
juicio.
IV
Por los fundamentos expuestos, se revoca la determinación
del Tribunal de Apelaciones y se restablece el dictamen del
Tribunal de Primera Instancia para que atienda el litigio
conforme a lo aquí resuelto.
Se dictará sentencia de conformidad.
Erick V. Kolthoff Caraballo
Juez Asociado
EN EL TRIBUNAL SUPREMO DE PUERTO RICO
Mitsubishi Motor Sales of
Caribbean, Inc.
Apelante
v. AC-2020-0082
Lunor, Inc. y otros
Apelados
SENTENCIA
En San Juan, Puerto Rico a 12 de septiembre de 2023.
Por los fundamentos expuestos en la Opinión que
antecede la cual se hace formar parte íntegra de la
presente, se revoca la determinación del Tribunal de
Apelaciones y se restablece el dictamen del Tribunal de
Primera Instancia para que atienda el litigio conforme
a lo aquí resuelto.
Así lo pronunció, manda el Tribunal y certifica
el Secretario del Tribunal Supremo. La Jueza Presidenta
Oronoz Rodríguez emitió una Opinión disidente a la que
se unió el Juez Asociado señor Colón Pérez. El Juez
Asociado señor Estrella Martínez emitió una Opinión
disidente a la que se unió el Juez Asociado señor Colón
Pérez.
Javier O. Sepúlveda Rodríguez
Secretario del Tribunal Supremo
EN EL TRIBUNAL SUPREMO DE PUERTO RICO
Mitsubishi Motor Sales of
Caribbean, Inc.
Apelante
AC-2020-0082
v.
Lunor, Inc. y otros
Apelados
Rodríguez emitió una Opinión de conformidad en parte y disidente en parte
La Jueza Presidenta Oronoz Rodríguez emitió una Opinión disidente a la
cual se unió el Juez Asociado señor Colón Pérez
En San Juan, Puerto Rico, a 12 de septiembre de 2023.
En esta ocasión, la controversia ante nos es de
estricto derecho: ¿Procede automática y
obligatoriamente imponer la sanción de la anotación
de la rebeldía siempre que el Tribunal de Primera
Instancia decida aplicar la sanción de la eliminación
de las alegaciones que dispone la Regla 34.3(b)(3) de
Procedimiento Civil, 32 LPRA Ap. V? Una mayoría de
este Tribunal contesta esta interrogante en la
afirmativa. Sin embargo, para arribar a esa
conclusión, el proceso analítico que se utiliza ignora
por completo el texto de las Reglas de Procedimiento
Civil y, a mi juicio, interpreta incorrectamente la
jurisprudencia estatal y federal.
AC-2020-0082 2
Ante este proceder, me veo precisada a disentir y
demostrar que tanto el texto de la ley y la jurisprudencia
apuntan a la conclusión de que las referidas sanciones pueden
ser impuestas de manera separada e independiente. Es decir,
un juez o jueza del Tribunal de Primera Instancia tiene
discreción para ordenar la eliminación de las alegaciones de
una parte como sanción, a tenor con la Regla 34.3(b)(3) de
Procedimiento Civil, supra, sin que esto tenga la
consecuencia automática de que también se le anote la
rebeldía.
Primero, realizaré un análisis sobre la intención de la
Asamblea Legislativa tal y como se desprende del texto de la
referida regla. Segundo, revisitaré la casuística citada en
la Opinión mayoritaria para demostrar que de una lectura
puntillosa de esta surge que nunca se ha establecido el
precedente que se utiliza como la base de su argumento.
Finalmente, debemos auscultar el efecto práctico que tiene
despojar a nuestros jueces y juezas de primera instancia de
una herramienta importante para el manejo de los casos que se
ventilan ante ellos.
I
La controversia ante nos surge de una demanda que
presentó Mitsubishi Motor Sales of Caribbean, Inc.
(Mitsubishi) en contra del Sr. José Julio Feliciano Prieta,
la Sra. Arelys Concepción Lorenzo, la Sociedad Legal de
Gananciales compuesta por ambos, el Sr. Gustavo E. Guilbe
Ortiz, la Sra. Sonia E. Ortiz Ruiz y la Sociedad Legal de
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Gananciales compuesta por ambos, entre otros (en conjunto, la
parte recurrida).1
Tras varios años de litigio, Mitsubishi presentó una
Moción urgente solicitando eliminación de alegaciones por
incumplimiento con órdenes del Tribunal. En esta, argumentó
que, ante el incumplimiento reiterado por la parte recurrida
con órdenes del tribunal sobre la entrega de una serie de
documentos, procedía la eliminación de sus alegaciones a
tenor con las Reglas 34.2 y 34.5 de Procedimiento Civil,
supra. El 9 de febrero de 2015 el Tribunal de Primera
Instancia emitió una Resolución mediante la cual expresó lo
siguiente:
Hay elementos subjetivos de intención,
actuación, propósitos mentales y otros factores que
mueven a este tribunal [a] denegar la petición de
[la] parte demandante de anotar [la] rebeldía y
dictar sentencia a los co-demandados, tampoco queda
convencido este Tribunal [de que] proceda dar por
probado el pleito, menos prohibir a los demandados
presentar prueba en oposición a las reclamaciones
incoadas por Mitsubishi Motor Sales of Caribbean.
No obstante, concluye este Tribunal [que] la parte
demandada ha menospreciado el proceso de descubrir
prueba, faltando a la diligencia e incumpliendo con
las múltiples órdenes de este Tribunal dadas por
los varios jueces que han atendido este asunto
desde el año 2002.
Por tanto, se ordena y queda ordenado la
eliminación de todas las alegaciones de la parte
demandada a todos los efectos legales y sobre todas
las controversias objeto de este litigio.2
1 En la Demanda se alegó que la parte recurrida incurrió en incumplimiento
con transacciones garantizadas, distribución ilegal de dividendos,
reducción ilegal de capital, fraude e incumplimiento de contrato.
2 Apéndice de Recurso de Apelación, págs. 119-120 (Énfasis suplido).
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Nótese que el juez de instancia expresamente rechazó
ordenar la anotación de la rebeldía, indicó que la sanción se
limitaría a la eliminación de las alegaciones, y explicó que
la parte sancionada retendría su derecho a presentar prueba
en oposición a las reclamaciones incoadas por Mitsubishi.
Inconformes con la referida Resolución, la parte
recurrida acudió al Tribunal de Apelaciones para cuestionar
la sanción impuesta. Sin embargo, el foro apelativo
intermedio confirmó el dictamen mediante Sentencia dictada el
18 de septiembre de 2015. Finalmente, la parte recurrida
presentó un recurso de certiorari ante este Tribunal y, tras
expedirse, en el 2018 se confirmó la determinación.3
Devuelto el asunto al Tribunal de Primera Instancia,
surgió otra controversia con relación a la interpretación que
debía darse a la sanción impuesta. Por un lado, Mitsubishi
argumentó que la parte recurrida estaba impedida de presentar
prueba a su favor pues la eliminación de las alegaciones les
ponía en la misma posición que si se le hubiese anotado la
rebeldía. Por el otro, la parte recurrida señaló que la
Resolución del 9 de febrero de 2015, en la cual se impuso la
sanción, expresamente rechazó anotarle la rebeldía e
impedirle presentar prueba en oposición a las reclamaciones
incoadas.
El Tribunal de Primera Instancia, por voz de un juez
distinto al que originalmente impuso la sanción, emitió una
3 Mitsubishi Motor Sales of Caribbean, Inc. v. Lunor, Inc. y otros (CC-
2016-0557, Sentencia emitida el 27 de septiembre de 2018).
AC-2020-0082 5
Resolución el 10 de febrero de 2020 en la cual expresó que la
parte recurrida “estaba impedid[a] de presentar prueba y
defensas a su favor, ello ante la realidad inescapable de que
sus alegaciones le fueron eliminadas y a lo único que tendrían
derecho es a contrainterrogar a la parte demandante en la
vista en rebeldía que en su día ha de tener efecto”.4 Esta
aseveración se hizo sin fundamento alguno que sustentara por
qué se estaba apartando de las expresiones que hizo el
tribunal en la resolución en la cual se impuso la sanción y
que advino final y firme.
Inconforme, la parte recurrida presentó un recurso de
certiorari ante el Tribunal de Apelaciones solicitando la
revisión de la Resolución del Tribunal de Primera Instancia.
El foro apelativo intermedio revocó al Tribunal de Primera
Instancia. Fundamentó su decisión en que la Resolución del 9
de febrero de 2015 se había convertido en la ley del caso,
que no existía justificación para variar el lenguaje
utilizado en la sanción impuesta luego de tantos años, y que
no existía fundamento legal que equiparara la eliminación de
las alegaciones con la anotación de la rebeldía.
Así las cosas, Mitsubishi solicitó la revisión del
dictamen del Tribunal de Apelaciones. Una mayoría expidió el
recurso presentado y decidió revocar la determinación del
Tribunal de Apelaciones. Por estar en completo desacuerdo con
este curso de acción, discuto las razones por las cuales
hubiese confirmado al Tribunal de Apelaciones.
4 Apéndice de Recurso de Apelación, pág. 168.
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II
En primer lugar, recordemos que “en nuestro ordenamiento
jurídico se han instaurado una serie de normas de hermenéutica
legal, las cuales, en mayor o menor grado, se imponen como
principios rectores del ejercicio de nuestra función
adjudicativa”. Martajeva v. Ferre Morris, 210 DPR 612, 826
(2022). Véase también: Rosado Molina v. ELA y otros, 195 DPR
581, 589 (2016). Además, como es conocido, uno de los
principios cardinales de hermenéutica es que cuando la ley es
clara y libre de toda ambigüedad, su letra no debe ser
menospreciada bajo el pretexto de cumplir con su espíritu.
Martajeva v. Ferre Morris, supra. Es por esto que “el primer
paso al interpretar un estatuto es remitirnos al propio texto
de la ley, puesto que cuando el legislador se ha expresado en
un lenguaje claro e inequívoco, el propio texto de la ley es
la expresión por excelencia de la intención legislativa”.
Rosado Molina v. ELA, supra, pág. 589. Véase también: Cordero
et al. v. ARPe et al., 187 DPR 445, 456 (2012).
A pesar de este mandato, mi compañera y compañeros de
estrado se apartan del texto claro de la disposición en
cuestión y, lo que es más, también dan traste con la intención
legislativa.
Sin embargo, utilizando herramientas hermenéuticas
podemos descubrir y darle efecto a la intención de la Asamblea
Legislativa expresada mediante la letra de la ley. Lo cierto
es que en nuestro ordenamiento no existe fundamento legal que
asimile la sanción de la eliminación de las alegaciones a la
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anotación de rebeldía. Por el contrario, la Regla 34.3 de
Procedimiento Civil, supra, distingue expresamente entre las
dos sanciones. Veamos.
El Prof. Jorge Farinacci Fernós (profesor Farinacci
Fernós), en su obra Hermenéutica Puertorriqueña: Cánones de
Interpretación Judicial, discute el efecto de palabras o
expresiones copulativas o disyuntivas. Por un lado, un
copulativo conecta dos o más expresiones. Esto tiene el efecto
normativo de expresar que hace falta que todas las instancias
conectadas estén presentes para que la norma aplique. Por el
otro, un disyuntivo separa dos expresiones o más e implica
que será suficiente que ocurra solamente una de las instancias
mencionadas. El profesor Farinacci Fernós ilustra esta
diferencia con un ejemplo simple:
“[S]i la norma lee ‘Está prohibido guiar y beber’,
debe de partirse de la premisa que lo que está
prohibido es guiar y beber, es decir, hacer ambas
actividades a la vez. Si queremos prohibir ambas
conductas separadamente, lo correcto sería decir
‘Está prohibido guiar o beber’, ‘Están prohibidos
guiar y beber’ o ‘No se puede guiar ni beber’. En
el primer ejemplo, el disyuntivo ‘o’ establece
claramente que cualquiera de las dos conductas está
prohibida. En el segundo ejemplo, el uso del plural
da a entender que la prohibición alcanza todas las
instancias mencionadas en la norma. En el tercer
ejemplo, el uso del negativo ‘ni’ señala que la
prohibición es para ambas conductas
separadamente”. 5
Esta misma lógica puede aplicarse no solamente a las
5 J. Farinacci Fernós, Hermenéutica Puertorriqueña: Cánones de
Interpretación Jurídica, Puerto Rico, Editorial Interjuris, Editorial de
la Universidad Interamericana de Puerto Rico, págs. 117-118.
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prohibiciones, sino a los requisitos y autorizaciones.6
Recordemos el lenguaje de Regla 34.3 de Procedimiento Civil,
supra:
Si una parte o un funcionario o agente
administrador de una parte, o una persona designada
para testificar a su nombre según disponen las
Reglas 27.6 o 28, deja de cumplir una orden para
llevar a cabo o permitir el descubrimiento de
prueba, incluyendo una orden bajo las Reglas 32 y
34.2, el tribunal podrá dictar, con relación a la
negativa, todas aquellas órdenes que sean justas;
entre ellas las siguientes:
. . . . . . . .
(3) Una orden para eliminar alegaciones o parte de
ellas, o para suspender todos los procedimientos
posteriores hasta que la orden sea acatada, para
desestimar el pleito o procedimiento, o cualquier
parte de ellos, o para dictar una sentencia en
rebeldía contra la parte que incumpla. Regla
34.3(b)(3) de Procedimiento Civil, 32 LPRA Ap. V
(Énfasis suplido).
De lo anterior se puede colegir que la Asamblea
Legislativa, sin dejar espacio para ambigüedad alguna,
proveyó un listado de las sanciones que el tribunal puede
imponer por el incumplimiento con ordenes relacionadas con el
descubrimiento de prueba. HRS Erase, Inc. v. Centro Médico
del Turabo, Inc., 205 DPR 689, 700 (2020). Debido a que se
utiliza el disyuntivo “o” para separar las distintas posibles
sanciones, en vez de utilizar el copulativo “y”, la única
interpretación razonable de la intención legislativa es que
se decidió separar las sanciones y proveer autorización a los
tribunales para que se impusiera cada una de manera
independiente.
6 Íd., pág. 119.
AC-2020-0082 9
Interpretar que la Legislatura, a pesar de enumerar las
sanciones por separado y dividirlas con el disyuntivo “o”,
tuvo la intención de que se interpretara que la eliminación
de las alegaciones y la anotación de rebeldía son
equivalentes, requiere una lectura forzada del texto de la
ley. Según lee la Regla 34.3 de Procedimiento Civil, supra,
cuando una parte incumple con órdenes del tribunal
relacionadas con el descubrimiento de prueba, los tribunales
tienen ante sí una lista de seis posibles sanciones distintas
que pueden imponer, algunas de las cuales evidentemente son
más severas que otras, y todas están separadas por el
disyuntivo “o”. Empero, una mayoría de este Tribunal razona
que la primera de las sanciones listada está ligada
inexorablemente a la última sanción allí incluida. Llegan a
esta conclusión sin brindar explicación alguna sobre por qué
la Asamblea Legislativa decidió enumerar dos sanciones
separadas, divididas por el disyuntivo “o”, y con otras cuatro
sanciones entre medio, si, como arguye la mayoría, estas dos
sanciones son, para todos los efectos, idénticas. El proceso
analítico de la Opinión mayoritaria llega a una conclusión
que está diametralmente opuesta al lenguaje claro y libre de
ambigüedad que se utilizó en la regla objeto de análisis.
Por el contrario, estimo que nuestra tarea de darle
efecto a la intención legislativa ante el lenguaje preciso
del texto de la ley no requería malabares analíticos. Sin
tener que mirar más allá de la letra de la ley, estamos ante
una lista de seis sanciones y el Tribunal tiene la
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prerrogativa de: 1) imponer cada una de esas sanciones por
separado o, 2) acumular más de una de estas sanciones e
imponerlas en conjunto.
III
La Opinión mayoritaria, tras ignorar el texto claro de
la ley, recurre a jurisprudencia, tanto local como federal,
con la intención de reinterpretar el significado de la lista
de sanciones que provee la Regla 34.3 de Procedimiento Civil,
supra. Sobre esto, se argumenta que “el examen detallado de
Continental [v. Isleta Marina], 106 DPR 809 (1978), y el
análisis sobre las alegaciones responsivas esbozado revela,
tal como expresamos categóricamente hace más de cuarenta años
en Arce [v. Club Gallístico de San Juan], 105 DPR 305 (1976),
que luego de una orden para eliminar las alegaciones de la
parte demandada procede declararla en rebeldía y resolver la
causa en su contra”.7 Además, plantea que “esta norma no debe
cambiar, más bien la reiteramos”.8 Sin embargo, estoy de
acuerdo con lo expresado en la Opinión disidente del Juez
Asociado señor Estrella Martínez sobre el hecho de que la
Opinión mayoritaria representa inadecuadamente los casos que
cita como precedente para resolver la controversia ante nos.
En fin, este Tribunal y la Corte Suprema Federal nunca han
expresado de manera categórica que la sanción de la
eliminación de las alegaciones implica necesariamente la
anotación de la rebeldía.
7 Opinión mayoritaria, pág. 20.
8 Íd.
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Como señala la Opinión mayoritaria, en Continental Ins.
Co. v. Isleta Marina, supra, el foro primario ordenó la
eliminación de todas las alegaciones de la parte demandada e
inmediatamente señaló y celebró la vista en rebeldía. Sin
embargo, en ese caso no estaba en controversia si procedía la
anotación de la rebeldía, sino que la discusión se centró
sobre el peso de la prueba que tiene el demandante luego de
que se le haya anotado la rebeldía al demandado. Es decir, en
Continental Ins. Co. v. Isleta Marina, supra, no hubo
discusión alguna sobre la relación entre la eliminación de
las alegaciones como sanción y la anotación de rebeldía. Esto
así, pues el foro primario optó, tal y como tiene la
discreción para hacer, por la sanción particular de eliminar
las alegaciones y anotar la rebeldía; sin embargo, no surge
de las Reglas de Procedimiento Civil ni del texto de nuestro
pronunciamiento de Continental Ins. Co. v. Isleta Marina,
supra, que el Tribunal de Primera Instancia hubiese estado
obligado a imponer ambas sanciones en conjunto. Por el
contrario, en Continental Ins. Co. v. Isleta Marina, supra,
expresamos que el foro primario ostentaba la prerrogativa de
imponer la sanción que entendiera correspondiente. “Como
hemos señalado antes, la Regla 34.3, que autoriza la
imposición de sanciones, contempla varias alternativas, o
sea, el tribunal puede imponer cualquiera de las sanciones
allí dispuestas”. Íd., pág. 814 (Énfasis suplido). A pesar de
esto, una mayoría de este Tribunal intenta imponer una
interpretación acomodaticia del precedente de Continental
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Ins. Co. v. Isleta Marina, supra, para establecer que allí se
demostró la relación inherente entre las dos sanciones en
controversia. Sin embargo, ese análisis equipara erróneamente
las expresiones que este Tribunal ha hecho con relación a que
los jueces y juezas de instancia están facultados para imponer
ambas sanciones en conjunto con una conclusión completamente
distinta de que el foro primario está obligado a anotarle la
rebeldía a una parte si opta por eliminar sus alegaciones.
La Opinión mayoritaria también cita a Arce v. Club
Gallístico de San Juan, supra, como ejemplo de que este
Tribunal ha expresado que, luego de una orden para eliminar
las alegaciones de la parte demandada, procede declararla en
rebeldía y resolver la causa en su contra. Sin embargo,
nuevamente la Opinión mayoritaria llega a una conclusión que
se distancia del precedente que realmente se estableció, ya
que citan el texto del caso descontextualizándolo de la
controversia. En primer lugar, nótese que, en Arce v. Club
Gallístico de San Juan, supra, los peticionarios
cuestionaron: 1) la facultad del foro primario para ordenar
la desestimación de una causa de acción como sanción por
inactividad y, 2) si en ese caso en particular se configuraban
los elementos necesarios para que, en efecto, se sancionara
a la parte con la desestimación del caso.
Nuevamente, la controversia en aquel momento no versaba
sobre la relación entre la eliminación de las alegaciones y
la anotación de la rebeldía, sino sobre la constitucionalidad
de imponer las referidas sanciones. Por esta razón, las
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expresiones del Tribunal en aquel momento se limitaron a
contestar esas dos interrogantes. Es por esto que una mayoría
de este Tribunal se equivoca en su interpretación del alcance
de nuestras expresiones en Arce v. Club Gallístico de San
Juan, supra, y su relevancia a la controversia ante nos. En
aquel momento se discutió el poder que tiene el tribunal para
emitir cualquiera de las sanciones que la Legislatura listó.
Sin embargo, la mayoría de esta Curia interpreta erróneamente
que en aquel momento dictaminamos que dos de esas sanciones,
la eliminación de las alegaciones y la anotación de la
rebeldía, siempre tienen que imponerse en conjunto. Esta
lectura de la norma simplemente no es fiel al lenguaje
utilizado en el texto de Arce v. Club Gallístico de San Juan,
supra.
La Opinión mayoritaria comete este mismo error, dígase,
la presunta equivalencia entre la facultad de un tribunal
para emitir dos sanciones en conjunto y la obligación de
imponer una sanción siempre que imponga la otra, al
interpretar erróneamente lo que la Corte Suprema federal
pautó en Hammond Packing Company v. State of Arkansas, 212
U.S. 322 (1909). Se expresa que en Hammond Packing Company v.
State of Arkansas, supra, “se resolvió que procede un dictamen
en rebeldía luego de excluir las alegaciones del promovido
por incumplir con una orden para descubrir prueba”.9 Sin
embargo, Hammond Packing Company v. State of Arkansas lo que
9 Opinión mayoritaria, pág. 17.
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expresa es que: “the law of the United States, as well as the
laws of many of the states, afford examples of striking out
pleadings and adjudging by default for a failure to produce
material evidence”. Hammond Packing Company v. State of
Arkansas, supra, pág. 350. Como se puede observar, la Corte
Suprema federal no estableció que la anotación de rebeldía es
una consecuencia natural y obligatoria de la eliminación de
las alegaciones; en vez, una traducción correcta de sus
expresiones revela que se limitó a mencionar que existen
fuentes de Derecho estatal y federal que facultan a un
tribunal a imponer las sanciones de eliminar las alegaciones
y de anotar la rebeldía cuando se incumple con el
descubrimiento de prueba. La Opinión mayoritaria no es
precisa en su traducción del texto de Hammond Packing Company
v. State of Arkansas, supra, lo cual redunda en una
interpretación incorrecta del precedente.
Habiendo demostrado que del texto de la Regla 34.3 de
Procedimiento Civil, supra, dimana la intención clara de la
Asamblea Legislativa de mantener la eliminación de las
alegaciones y la anotación de rebeldía como sanciones
distintas, y que ni este Tribunal ni la Corte Suprema federal
alguna vez han equiparado estas dos sanciones, resulta
evidente que una mayoría de este Tribunal erró al expresar
que hoy reitera una norma que supuestamente se expresó
categóricamente hace cuarenta años. Por el contrario, hoy
crean una norma nueva sin tener como base disposición legal
o jurisprudencia alguna.
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IV
Finalmente, entiendo prudente explorar la consecuencia
práctica que tendrá la norma que hoy establece este Tribunal
sobre los mecanismos a la disposición de los jueces y juezas
de primera instancia para promover una conducta apropiada de
las partes durante el litigio y que los casos ante sí se
puedan resolver en sus méritos. Me parece preocupante que
esta Curia, hoy, despoja a sus compañeros y compañeras de
instancia de una importante herramienta para el manejo de los
casos.
En primer lugar, recordemos que en nuestro ordenamiento
existe una política judicial de que los casos se ventilen en
sus méritos y que la desestimación de los recursos solamente
procede en situaciones extremas en donde sea evidente la
existencia de una causal de desestimación reconocida. HRS
Erase, Inc. v. Centro Médico del Turabo, Inc., supra, pág.
701; Ramírez de Arellano v. Srio. de Hacienda, 85 DPR 823,
829 (1962). De esta forma, nuestro sistema de justicia
propicia el acceso a los reclamos de la ciudadanía, al
promover la adjudicación efectiva de las controversias en sus
méritos. Véase: Ley Núm. 21-2003, según enmendada, conocida
como Ley de la Judicatura del Estado Libre Asociado de Puerto
Rico de 2003, 4 LPRA sec. 24 (a).
A estos efectos, en Mejías v. Carrasquillo, 185 DPR 288
(2012), discutimos la naturaleza y los distintos propósitos
que puede tener una sanción emitida por un tribunal y
dirigidas a las partes de un caso:
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El propósito de las sanciones puede ser disuasivo,
punitivo o remediatorio. Es disuasivo en la medida
en que la posibilidad de la aplicación de la sanción
promueve el adecuado desenvolvimiento del proceso
al disuadir de la infracción de las reglas. Es
punitivo cuando se persigue castigar al infractor
y remediatorio cuando lo que busca la sanción es
proveer un remedio a la infracción. En ocasiones la
sanción es tanto punitiva como remediatoria.10
Ciertamente, la consecuencia de la anotación de rebeldía
es distinta y más severa que la consecuencia de la eliminación
de las alegaciones. Por un lado, la anotación de la rebeldía
tiene el efecto de que se den por admitidos todos los hechos
bien alegados en la demanda o la alegación que se haya
formulado en contra del rebelde, y se autoriza al tribunal
para que dicte la sentencia correspondiente, si esta procede
como cuestión de derecho. Rivera Figueroa v. Joe’s European
Shop, 183 DPR 580, 590 (2011). Lo anterior no atenta contra
los derechos reconocidos a una parte en rebeldía, a quien,
según hemos expresado, “le cobija el derecho a conocer del
señalamiento, asistir a la vista, contrainterrogar los
testigos de la parte demandante, impugnar la cuantía y apelar
la sentencia. No renuncia a las defensas de falta de
jurisdicción ni de que la demanda no aduce hechos
constitutivos de una causa de acción en favor del reclamante”.
Ocasio v. Kelly Servs., 163 DPR 653, 672 (2005).
Por el contrario, la eliminación de las alegaciones por
sí sola no tiene que conllevar consecuencias tan fatales.
10 Mejías v. Carrasquillo, 185 DPR 288 (2012) citando a R. Hernández
Colón, Práctica jurídica de Puerto Rico: Derecho Procesal Civil, 4ta
ed., San Juan, Ed. LexisNexis de Puerto Rico, 2007, pág. 181.
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Aunque este Tribunal se ha expresado in extenso sobre las
consecuencias de la anotación de la rebeldía, lo cierto es
que no se ha abundado de la misma manera sobre las
consecuencias precisas que conlleva la eliminación de las
alegaciones sin más. Hoy, el curso de acción mayoritario
desaprovecha esta oportunidad para aclarar la distinción
entre las sanciones en controversia y precisar sobre las
distintas herramientas de manejo de caso que tienen nuestros
jueces y juezas de instancia a su disposición.
La parte recurrida argumenta que la sanción de eliminar
las alegaciones de una parte demandada no prohíbe que dicha
parte presente evidencia para refutar las alegaciones de la
demanda, incluida la prueba de impugnación. Esta misma
interpretación surge de la Resolución que emitió el Tribunal
de Primera Instancia el 9 de febrero de 2015, donde explicó
que al no anotar la rebeldía y limitar la sanción a la
eliminación de la rebeldía, no se estaría prohibiendo a la
parte recurrida presentar prueba en oposición a las
reclamaciones incoadas por Mitsubishi.
Esta interpretación sobre los efectos de la eliminación
de las alegaciones encuentra apoyo en expresiones que este
Tribunal hizo previamente en Mejías v. Carrasquillo, supra.
Ahí, establecimos que:
[L]a eliminación de las alegaciones no conlleva, de
por sí, la inexistencia de controversias de hechos
que justifica el que no se celebre una vista
evidenciaria. Hemos dispuesto reiteradamente que el
proceso de formar consciencia judicial exige que se
compruebe cualquier aseveración mediante prueba y,
para ello, el tribunal deberá celebrar las vistas
AC-2020-0082 18
que crea necesarias y adecuadas. (Énfasis suplido).
Íd., pág. 304.
La diferencia entre las dos sanciones, entonces, resulta
clara. Por un lado, eliminar las alegaciones necesariamente
supone que la parte sancionada pierde acceso a las defensas
que pudieran surgir de sus alegaciones. Sin embargo, esto no
significa que también se le tienen que imponer todas las demás
consecuencias que son exclusivas a la anotación de la
rebeldía; no hay fundamento en derecho que nos obligue a
impedir a una parte a quien se le eliminaron las alegaciones,
pero no se le anotó la rebeldía, a que presente prueba que
refute los méritos de la reclamación de la otra parte.
De esta manera, mantenemos una sanción que es menos
severa y que impone menos restricciones que la anotación de
la rebeldía. Así, la sanción de la eliminación de las
alegaciones tendría la doble función de castigar al infractor
por incumplir con las órdenes del tribunal, pero, además,
promovería el adecuado desenvolvimiento del proceso. La
anotación de la rebeldía, por el contrario, es una sanción
tan extrema que solamente podría categorizarse como punitiva.
Es por esto que equiparar ambas sanciones, y eliminar la
diferencia sutil en las consecuencias de cada una, tiene como
efecto despojar a los jueces y juezas del foro primario de
una herramienta importante a su disposición para alentar a
las partes a acatar sus órdenes. Este error es aún más patente
ante la fuerte política judicial de propiciar la ventilación
AC-2020-0082 19
de los pleitos en los méritos y la solución justa de las
reclamaciones.
V
En fin, hoy se nos presentó la oportunidad de aclarar la
relación entre dos sanciones distintas que surgen de la Regla
34.3 de Procedimiento Civil, supra. En particular, debíamos
auscultar si la sanción de la eliminación de las alegaciones
siempre tiene que estar acompañada por la anotación de
rebeldía. Para contestar esta interrogante, nuestra única
tarea adjudicativa era acudir al texto claro y libre de
ambigüedad de la referida regla, el cual revela que la
intención legislativa era concederle la prerrogativa a los
jueces y juezas de imponer cualquiera de las seis sanciones
allí listadas. A pesar de esto, una mayoría de mis compañeros
y compañera de estrado se embarcó en una expedición de
jurisprudencia estatal y federal que no hace referencia a la
controversia real ante nos, sino a una solamente
tangencialmente relacionada. En ese ejercicio, equiparan la
capacidad y discreción para imponer dos sanciones en conjunto
con una obligación de hacerlo. Además, este proceder va en
contra de lo que claramente era la ley del caso.
El efecto de esta decisión, además de revivir de manera
artificial un dictamen cinco años después de que este
adviniera final y firme, resonará en las salas de todos los
jueces y juezas de nuestro Tribunal de Primera Instancia.
Esto así, pues este Tribunal le ha despojado de la capacidad
AC-2020-0082 20
de imponer una sanción que, aunque severa, no conllevaba todas
las consecuencias de la anotación de la rebeldía.
VI
Por lo antes expuesto, respetuosamente disiento del
curso de acción seguido por una mayoría de este Tribunal.
Maite D. Oronoz Rodríguez
Jueza Presidenta
EN EL TRIBUNAL SUPREMO DE PUERTO RICO
Mitsubishi Motor Sales of
Caribbean, Inc.
Apelante
AC-2020-0082
v.
Lunor, Inc. y otros
Apelados
Opinión disidente emitida por el Juez Asociado Señor ESTRELLA
MARTÍNEZ, a la cual se une el Juez Asociado Señor COLÓN
PÉREZ.
En San Juan, Puerto Rico, a 12 de septiembre de 2023.
En un ejercicio paradójico de nuestra facultad
interpretativa, este Tribunal hoy trata de forma análoga dos
(2) disposiciones distintas de las Reglas de Procedimiento
Civil, a pesar de que invoca la deferencia que ameritan las
decisiones de los foros inferiores en nuestro ordenamiento,
para justificar la reversión de una determinación previa y
establecida del propio Tribunal de Primera Instancia que la
emitió. Esto, además, pese a la existencia de sentencias
confirmatorias con respecto a la corrección de tal dictamen
y la deferencia que merece.
El resultado de tal acto es que, en el afán de defender
la discreción del foro de instancia actual para redefinir
AC-2020-0082 2
los contornos de una sanción emitida y sostenida hace años,
se menoscaba la deferencia que en un momento conferimos al
dictamen que hoy se enmienda y se merman las herramientas
que tiene a su disposición el Tribunal de Primera Instancia
para administrar los casos bajo su consideración.
Por entender que no procedía asignar a la sanción de la
eliminación de las alegaciones consignada en la Regla
34.3(b)(3) de Procedimiento Civil, infra, el efecto de una
anotación de rebeldía y, además, que el trayecto de este caso
prohibía que se revisitaran los efectos de la sanción
impuesta en el 2015, disiento. A continuación, expongo los
fundamentos fácticos y legales que sustentan mi postura.
I
El largo trámite de esta controversia tuvo su génesis
en el 2002 cuando Mitsubishi Motor Sales of Caribbean, Inc.
(Mitsubishi) presentó una Demanda1 en contra de varios
sujetos, entre estos, el Sr. José Julio Feliciano Prieto, la
Sra. Arelys María Concepción Lorenzo y la Sociedad Legal de
Gananciales compuesta por ambos, y el Sr. Gustavo E. Guilbe
Ortiz, la Sra. Sonia E. Ortiz Ruiz y la Sociedad Legal de
Gananciales compuesta por ambos (en conjunto, recurridos o
parte recurrida). A modo de resumen, Mitsubishi imputó a los
recurridos el vender los vehículos y las piezas de su marca
1La Demanda versa sobre reclamaciones de incumplimiento
con transacciones garantizadas, distribución ilegal de
dividendos, reducción ilegal de capital corporativo, acción
para descorrer el velo corporativo, fraude, incumplimiento
de contrato, cobro de dinero, y daños y perjuicios.
AC-2020-0082 3
sin pagarle las sumas que le correspondían por concepto de
pronto, “trade in” o pago en su totalidad.
Luego de varios años de litigio entre las partes,
Mitsubishi presentó una Moción urgente solicitando
eliminación de alegaciones por incumplimiento con órdenes
del Tribunal. En esta, informó que había transcurrido en
exceso el término concedido para que la parte recurrida
produjera una serie de documentos sin que ello ocurriera.
Mitsubishi sostuvo que, dada la contumacia de los recurridos
a pesar de varias advertencias del Tribunal, procedía la
eliminación de sus alegaciones bajo las Reglas 34.2 y 34.5
de Procedimiento Civil, infra. Tal petición desencadenó en
la presentación de una serie de escritos entre las partes
que, eventualmente, culminó con la emisión de una Resolución
por parte del Tribunal de Primera Instancia el 9 de febrero
de 2015.
En tal Resolución, tras repasar los esfuerzos de
Mitsubishi para obtener la documentación y las excusas
provistas por la parte recurrida sobre la imposibilidad de
entregarla, el foro primario expresó que no había sido
persuadido de la inhabilidad de los recurridos para
producirla, lo cual había prolongado el caso por años. Por
consiguiente, determinó que había ocurrido una expoliación
de la evidencia solicitada. No obstante, rechazó dar por
aceptadas las alegaciones de Mitsubishi o prohibirle a la
parte recurrida presentar prueba en oposición a las
AC-2020-0082 4
reclamaciones. De esta forma, concluyó que el incumplimiento
de los recurridos con las órdenes de producción de documentos
acarreaba la eliminación de sus alegaciones como sanción.
Tras la denegación de una solicitud de reconsideración,
todavía en desacuerdo, la parte recurrida acudió ante el
Tribunal de Apelaciones para cuestionar la sanción impuesta.
Mediante una Resolución con fecha de 18 de diciembre de 2015,
el foro apelativo intermedio confirmó el dictamen del foro
primario. Esto, por entender que el Tribunal de Primera
Instancia tenía la facultad para penalizar a los recurridos
con la eliminación de sus alegaciones como sanción por haber
incumplido con las órdenes relacionadas al descubrimiento de
prueba.
Aún inconformes, los recurridos presentaron un recurso
ante este Tribunal. Tal trámite concluyó con una Sentencia
en la cual confirmamos las determinaciones cuestionadas.
Ello, tras concluir que el Tribunal de Primera Instancia
había advertido a los recurridos en múltiples ocasiones de
las consecuencias de sus incumplimientos y de su obligación
de entregar los documentos, por lo que no había abusado de
su discreción al sancionarlos con la eliminación de las
alegaciones.
Tras advenir final y firme tal dictamen, el asunto
regresó ante la consideración del foro primario. Allí comenzó
una disputa el 5 de noviembre de 2019 cuando el caso fue
llamado para la celebración del juicio en su fondo. En esta
AC-2020-0082 5
ocasión, la controversia se centró en el alcance de la
sanción consignada en la determinación antes reseñada. Según
se desprende de la Resolución emitida por el Tribunal de
Primera Instancia el 10 de febrero de 2020, Mitsubishi
argumentó en la vista que los recurridos estaban impedidos
de presentar prueba a su favor debido a la eliminación de
sus alegaciones, lo cual los colocaba en la misma posición
que una parte en rebeldía. Por su parte, los recurridos
señalaron que la Resolución de 2015 hizo constar
categóricamente que no les sería prohibido presentar prueba.
En su dictamen al respecto, el foro primario concluyó
que los recurridos estaban vedados de presentar prueba y
defensas a su favor debido a la eliminación de sus
alegaciones. A esto añadió que la parte recurrida solo podía
contrainterrogar a Mitsubishi en una vista en rebeldía.
Disconforme, la parte recurrida solicitó la
reconsideración y destacó el pronunciamiento del propio
tribunal, el cual fue confirmado por todos los foros
apelativos, con respecto a la improcedencia de denegarle su
derecho a presentar prueba y tratarle como una parte en
rebeldía. Argumentó que adoptar esta nueva interpretación
implicaría la imposición de una sanción adicional. El foro
de primera instancia la declaró no ha lugar.
Aún insatisfechos, los recurridos presentaron una
Solicitud de certiorari ante el foro apelativo intermedio en
la cual arguyeron que anotarle la rebeldía no solo
AC-2020-0082 6
representaba una sanción adicional por una conducta que ya
había sido penalizada, sino que también violaba abiertamente
la ley del caso. A su vez, alegaron que existe una diferencia
marcada entre el alcance de una eliminación de las
alegaciones y una anotación de rebeldía, pues bajo la primera
sanción no existe disposición alguna que prohíba la
presentación de prueba tras su imposición.
En consecuencia, el Tribunal de Apelaciones emitió una
Sentencia mediante la cual revocó al Tribunal de Primera
Instancia. Fundamentó su decisión, principalmente, en la
ausencia de justificación para la modificación de la sanción
tantos años después y la distinción en el alcance de ambas
sanciones. En desacuerdo, Mitsubishi instó una Solicitud de
reconsideración que fue denegada.
Así las cosas, Mitsubishi acudió ante este Tribunal y,
en reconsideración, una Mayoría decidió expedir el recurso y
revocar la determinación del Tribunal de Apelaciones.
Disiento de este proceder. Por lo tanto, expuesto el cuadro
fáctico que enmarca esta controversia, procedo a discutir el
Derecho aplicable en el que fundamento mi postura.
II
A.
Según lo hemos establecido, de determinar que los actos
de una parte están perjudicando y entorpeciendo los
procedimientos de alguna forma, los tribunales pueden, a su
discreción, prohibir, sancionar o castigar este tipo de
AC-2020-0082 7
conducta mediante: la eliminación de alegaciones y defensas,
la desestimación, la imposición de sanciones económicas,
dando por admitidos ciertos hechos e incluso dictar sentencia
en rebeldía. Rivera v. Insular Wire Prod. Corp., 140 DPR 912,
930 (1996). En lo pertinente a la situación ante nuestra
consideración, nuestro ordenamiento jurídico confiere a los
foros judiciales una facultad amplia para imponer sanciones
a una parte que se niega u omite descubrir prueba
injustificadamente. Rivera v. Tribunal Superior, 99 DPR 276,
279 (1970).
Esta facultad está firmemente establecida en la Regla
34.3 de Procedimiento Civil, 32 LPRA Ap. V, la cual dispone
las medidas que puede tomar un tribunal para promover que
las partes cumplan con el descubrimiento de prueba. En lo
que nos concierne, el inciso (b)(3) de la regla antes citada
autoriza al tribunal a emitir una orden para eliminar todas
las alegaciones o una porción de ellas cuando una parte se
niega a obedecer órdenes de descubrimiento:
(b) Otras consecuencias. Si una parte o un
funcionario o agente administrador de una parte, o
una persona designada para testificar a su nombre
según disponen las Reglas 27.6 o 28, deja de cumplir
una orden para llevar a cabo o permitir el
descubrimiento de prueba, incluyendo una orden bajo
las Reglas 32 y 34.2, el tribunal podrá dictar, con
relación a la negativa, todas aquellas órdenes que
sean justas; entre ellas las siguientes:
[…]
(3) Una orden para eliminar alegaciones o
parte de ellas, o para suspender todos los
procedimientos posteriores hasta que la orden sea
acatada, para desestimar el pleito o procedimiento,
o cualquier parte de ellos, o para dictar una
AC-2020-0082 8
sentencia en rebeldía contra la parte que incumpla.
(Énfasis suplido). Íd.
De forma similar, la Regla 39.2 de Procedimiento Civil,
32 LPRA Ap. V, R. 39.2, permite eliminar las alegaciones de
una parte como consecuencia de su incumplimiento con las Reglas
de Procedimiento Civil o alguna orden del tribunal. A su vez,
tal regla dispone que las sanciones se impondrán de forma
progresiva. Esto, pues, sanciones de esta magnitud representan
“medidas drásticas que chocan con nuestra política pública a
favor de que los casos se ventilen en sus méritos”. HRS Erase,
Inc. v. Centro Médico del Turabo, Inc., 205 DPR 689, 701
(2020).
Ahora bien, tal poder debe ejercerse de forma juiciosa y
apropiada. Maldonado v. Srio. de Rec. Naturales, 113 DPR 494,
498 (1982). Cada decisión que se tome al respecto debe estar
fundamentada en que la función de un tribunal es impartir
justicia dentro de los contornos de un proceso adversativo,
por lo que cada controversia debe resolverse en los méritos y
no con base en lo que una parte solicita o “como sanción porque
la otra parte no cumplió con algún procedimiento o no
compareció”. (Negrilla suplida). Rivera v. Insular Wire Prod.
Corp., supra. En fin,
a pesar de la gran discreción que tienen los
tribunales en esta área y del hecho de que estas
medidas pueden tener el efecto de facilitar la prueba
de su caso a la parte que ha sido diligente en el
trámite de su reclamación o defensa, esta facultad
de sancionar no puede interpretarse como que se
extiende a poder conceder un remedio al cual no se
ha demostrado, por la prueba o por las alegaciones,
que se tiene derecho. Íd.
AC-2020-0082 9
B.
Por su parte, la Regla 45.1 de Procedimiento Civil, 32
LPRA Ap. V, R. 45.1, establece que la anotación de rebeldía
procede cuando una parte deja de presentar alegaciones o de
defenderse, o como una sanción impuesta por el tribunal.
Según lo dispone tal regla, “[e]l tribunal, a iniciativa
propia o a moción de parte, podrá anotar la rebeldía a
cualquier parte conforme a la Regla 34.3(b)(3)”. Íd. Véase,
Álamo v. Supermercado Grande, Inc., 158 DPR 93, 100 (2002).
Destáquese que la anotación de rebeldía tiene el efecto
de dar por admitidos los hechos correctamente alegados por
la parte reclamante y veda a la parte sancionada de su derecho
a presentar prueba a su favor, aunque ello no exime al foro
judicial de evaluar si la causa de acción amerita la
concesión del remedio solicitado. Bco. Popular v. Andino
Solís, 192 DPR 172 (2015). Es decir, en este ámbito, un
trámite en rebeldía no garantiza una sentencia favorable para
la parte demandante. Continental Insurance Co. v. Isleta
Marina, 106 DPR 809 (1978). Esto, pues, aún en rebeldía, la
parte tiene derecho a conocer del señalamiento, asistir a la
vista, contrainterrogar a los testigos de la parte contraria,
impugnar la cuantía y apelar la sentencia, como también a
presentar defensas de falta de jurisdicción o de ausencia de
hechos constitutivos de una causa de acción. Íd.
C.
AC-2020-0082 10
En nuestra jurisdicción impera el principio de que los
derechos y las obligaciones que hayan sido objeto de una
adjudicación mediante un dictamen judicial que es final y
firmen constituyen la ley del caso. Mgmt. Adm. Servs, Corp.
v. E.L.A., 152 DPR 599, 606 (2000). Es decir, “de ordinario
los planteamientos que han sido objeto de adjudicación por
el foro de instancia o por este Tribunal no pueden
reexaminarse”. (Negrilla suplida). Félix v. Las Haciendas,
165 DPR 832, 843 (2005). Por consiguiente, bajo la doctrina
de la ley del caso, las determinaciones sobre algún asunto
tomadas por un foro apelativo obligan tanto al foro recurrido
como al que las dictó por estas gozar de finalidad y firmeza.
Cacho Pérez v. Hatton Gotay y otros, 195 DPR 1, 9 (1987).
“De este modo, las partes en un litigio pueden, en lo posible,
conducir su proceder en el pleito sobre unas directrices
judiciales confiables y certeras”. (Negrilla suplida). Mgmt.
Adm. Servs, Corp. v. E.L.A., supra, págs. 607–08.
Mas, la ley del caso no es un mandato inflexible, aunque
su propósito está alineado con la costumbre deseable de que
las controversias adjudicadas por un tribunal sean
respetadas. Íd., pág. 607. Entiéndase, es en aras de velar
porque el trámite de los litigios sea pronto y ordenado, en
conjunto con el interés en promover la estabilidad y certeza
del Derecho, que la doctrina de la ley del caso tiene como
fin “el que los tribunales nos resistamos a reexaminar estos
asuntos ya considerados dentro de un mismo caso”. In re
AC-2020-0082 11
Fernández Díaz, 172 DPR 38, 44 (2007). Pero ello puede ceder
si aferrarse a la ley del caso de forma absoluta conduce a
resultados manifiestamente injustos. Noriega v. Gobernador,
130 DPR 919, 931 (1992). Por tanto, “[e]n situaciones
excepcionales, si un caso, mediante los mecanismos
apropiados, vuelve ante la consideración de un tribunal y
[e]ste entiende que sus determinaciones previas son erróneas
y pueden causar una grave injusticia, puede entonces aplicar
una norma de [D]erecho distinta”. (Negrilla Suplida). In re
Fernández Díaz, supra.
III
En su petición ante este Tribunal, Mitsubishi señala que
la eliminación de las alegaciones fue la sanción impuesta a
la parte recurrida por destruir evidencia que era necesaria
para probar las alegaciones de la demanda, lo que le provocó
un daño irreparable que acarrea una penalidad más severa para
tener un verdadero efecto reparador. Arguye que una parte a
quien le son eliminadas sus alegaciones se coloca en la misma
posición que alguien que está en rebeldía, pues no tiene
defensas en contra de las alegaciones afirmativas de la parte
demandante ni tiene algo que sustentar con prueba a su favor.
Finalmente, expone que no hay ley del caso sobre el asunto de
la rebeldía porque ello no fue objeto de adjudicación o
litigio, y que las expresiones sobre la improcedencia de la
anotación de rebeldía y la prohibición de presentar prueba en
la Resolución de 2015 constituyeron un obiter dictum.
AC-2020-0082 12
Por su parte, los recurridos argumentan que la
determinación del Tribunal de Apelaciones se adhiere a la
doctrina de la ley del caso y que no se alcanza el estándar
de grave injusticia o resultado manifiestamente injusto para
desecharla. Indica que, en el 2015, el Tribunal de Primera
Instancia sopesó su incumplimiento e impuso la sanción que
estimó apropiada, excluyendo expresamente la anotación de
rebeldía o dar por probados los hechos alegados por
Mitsubishi. De este modo, niega que esto último constituya un
obiter dictum, particularmente porque el foro de instancia
consignó una denegación expresa de tales remedios según fueron
solicitados por Mitsubishi. Finalmente, la parte recurrida
rechaza que la eliminación de las alegaciones y la anotación
de rebeldía sean equivalentes, pues el ordenamiento jurídico
los trata por separado, incluso a través de disposiciones
reglamentarias diferentes. Insiste en que conferirles un
trato equitativo a estas alturas es sancionarlo nuevamente
por hechos que ya fueron adjudicados. La parte recurrida tiene
la razón.
Según se relató, el 9 de febrero de 2015, el Tribunal de
Primera Instancia emitió una Resolución en la cual destacó
que, desde el 2002, Mitsubishi había promovido medidas de
descubrimiento que habían sido repelidas por los recurridos.
En consecuencia, el foro primario se vio convencido de que
tomó lugar una expoliación de la prueba que debía ser
sancionada. Ahora bien, el foro de instancia fue sumamente
AC-2020-0082 13
específico en su análisis sobre la sanción que procedía y
expuso lo siguiente:
Ahora bien; [¿]cuál es el remedio apropiado? Los
demandantes solicitan varios[,] a saber: a) [s]e
tenga por probada la demanda, b) [p]rohibición a
oponerse y/o presentar prueba en oposición a las
reclamaciones incoadas por MMSC[,] c) la
eliminación de las alegaciones y d) anotar la
rebeldía dictando sentencia en rebeldía en cuanto
a los co-demandados.
Este Tribunal no puede pasar por alto el principio
establecido por nuestra más Alta Curia, el
Honorable Tribunal Supremo de Puerto Rico en los
casos Municipio de Arecibo v. Almac Yakima, 154 DPR
217 (2001) [y] Rivera v. Superior Pkq Inc., 132 DPR
115 (1992) a los efectos [que] prevalezca una clara
política judicial [de que] los casos se ventilen en
sus méritos. Hay elementos subjetivos de intención,
actuación, propósitos mentales y otros factores que
mueven a este tribunal [a] denegar la petición de
[la] parte demandante de anotar rebeldía y dictar
sentencia a los co-demandados, tampoco queda
convencido este Tribunal [que] proceda dar por
probado el pleito, menos prohibir a los demandados
presentar prueba en oposición a las reclamaciones
incoadas por [Mistubishi]. No obstante [,] concluye
este Tribunal [que] la parte demandada ha
menospreciado el proceso de descubrir prueba,
faltando a la diligencia e incumpliendo con las
múltiples órdenes de este Tribunal dada[s] por los
varios jueces que han atendido este asunto desde el
año 2002.
Por tanto, se ordena y quede ordenado la eliminación
de todas las alegaciones de la parte demandada a
todos los efectos legales y sobre todas las
controversias objeto de este litigio.2
De este texto se desprende diáfanamente que, aunque el
Tribunal de Primera Instancia le dio la razón a Mitsubishi
con respecto a la conducta contumaz y evasiva de los
recurridos en lo relacionado con el descubrimiento de prueba,
2(Negrillay subrayado suplido). Apéndice de Recurso
apelación, págs. 119-120.
AC-2020-0082 14
también dispuso específicamente que no concedería la
totalidad del remedio solicitado. Entiéndase, si bien
Mitsubishi peticionó específicamente que, además de la
eliminación de las alegaciones se le prohibiera a los
recurridos presentar prueba, se le anotara la rebeldía, se
dieran por probadas las alegaciones de la demanda y se
procediera a dictar sentencia a su favor, el Tribunal de
Primera Instancia lo denegó de forma cabal e inequívoca.
Esta decisión interlocutoria fue cuestionada ante el
foro apelativo intermedio. Sin embargo, tal tribunal confirmó
la decisión del Tribunal de Primera Instancia y afirmó que
este “tiene la facultad para eliminar la totalidad de las
alegaciones de aquella parte que incumpla con las órdenes que
permitan el descubrimiento de prueba”.3 Asimismo, este
Tribunal confirmó los dictámenes recurridos mediante una
Sentencia en la cual, citando la doctrina de deferencia,
concluimos que el “foro de primera instancia no erró al
eliminar las alegaciones ni abusó de su discreción”.4 En esta,
además, este Tribunal hizo una expresión que es de suma
importancia a la luz del desarrollo actual del caso:
Resolver lo contrario afectaría el buen balance de
los intereses que persigue la economía procesal, la
buena marcha de los procesos y el correcto
funcionamiento de nuestro sistema de justicia.
Además, limitaría, desmesuradamente, las facultades
de los jueces de instancia de lidiar con los
3Íd., pág. 129.
4Íd., pág. 160.
AC-2020-0082 15
inconvenientes continuos que puede generar una
parte en el proceso judicial.5
Es evidente, pues, que la Resolución que emitió el
Tribunal de Primera Instancia en el 2015 fue avalada en toda
su extensión por los foros apelativos, sin ambigüedades o
condiciones. En palabras simples, su decisión de sancionar a
los recurridos exclusivamente con la eliminación de sus
alegaciones y denegar específicamente la anotación de
rebeldía o la prohibición de presentar prueba quedó firmemente
establecida como la ley del caso. Por consiguiente, no puede
haber confusión jurídica alguna con respecto a los parámetros
de la sanción que el foro primario impuso a los recurridos
por sus acciones durante el descubrimiento de prueba y,
ciertamente, contrario a lo esbozado por la ponencia
mayoritaria, no existe necesidad de esclarecer algún aspecto
de esta.
No obstante, con el caso llamado para juicio en el 2019,
Mitsubishi argumentó que los recurridos estaban impedidos de
presentar prueba debido a que sus alegaciones habían sido
eliminadas, lo que, a su juicio, necesariamente implicaba que
estaban en rebeldía. Ante ello, los recurridos señalaron
correctamente que la Resolución de 2015 expresamente
estableció que no se les denegaría presentar prueba.
Así las cosas, el 10 de febrero de 2020, el Tribunal de
Primera Instancia, por voz de una juez diferente al que emitió
5Íd., pág. 161.
AC-2020-0082 16
la Resolución en cuestión, “aclaró” que los recurridos “están
impedidos de presentar prueba y defensas a su favor, ello
ante la realidad inescapable de que sus alegaciones le fueron
eliminadas y a lo único que tendrían derecho es a
contrainterrogar a la parte demandante en la vista en rebeldía
que en su día ha de tener efecto”.6 Esto, no solo en total
abstracción del texto literal de la Resolución que estaba
“aclarando”, sino también completamente huérfano de
fundamento o explicación legal alguna para justificar tal
conclusión.
Es un hecho innegable que, al proceder de esta forma, el
Tribunal de Primera Instancia reformuló una sanción que había
sido impuesta cinco (5) años antes y reinterpretó su extensión
en contravención a los parámetros claros consignados en el
propio dictamen que “aclaró”. Ello, a pesar de que la
naturaleza de la sanción y su alcance habían sido avalados en
su totalidad tanto por el Tribunal de Apelaciones como por
este Tribunal tras determinar, contundentemente, que no
procedía intervenir con aspecto alguno del mismo.
Ante esta inesperada reversión de los términos impuestos
por el foro de instancia en el 2015, el Tribunal de
Apelaciones, correctamente, emitió una Sentencia para revocar
la nueva interpretación conferida a la letra clara de la
Resolución en pugna. En su dictamen, el foro apelativo
intermedio señaló lo que es evidente:
6Íd., pág. 168.
AC-2020-0082 17
No surge del récord razón alguna para tal proceder;
tampoco el TPI expuso a qué podría responder un
cambio de parecer. En particular, no se adujo que
el cambio fuese producto de algún error patente de
[D]erecho, o que respetar lo dispuesto en la
Resolución de 2015 causaría una grave injusticia.
Tampoco puede justificarse lo actuado por el TPI
sobre la base de que, al eliminarse las alegaciones
de una parte, esta no puede defenderse o presentar
prueba para refutar la presentada en su contra. La
eliminación de alegaciones no es equivalente a una
anotación de rebeldía.7
Acertadamente, el Tribunal de Apelaciones destacó los
tres (3) fundamentos principales por los que la nueva
determinación del Tribunal de Primera Instancia estuvo
errada, a saber: (1) la determinación del 2015 fue confirmada
por los foros apelativos; (2) no existe justificación para
variar su lenguaje tantos años después, y (3) no existe
fundamento legal en nuestro ordenamiento que asimile la
eliminación de las alegaciones a la anotación de rebeldía.
Sin embargo, a pesar de cuán patente fue el error del
Tribunal de Primera Instancia a la luz de estos fundamentos,
hoy una mayoría de los miembros de este Foro no solo revoca
la determinación del Tribunal de Apelaciones, sino que también
decide que este caso provee el escenario ideal para redefinir
dos (2) disposiciones separadas y distintas de nuestro
ordenamiento civil como intercambiables entre sí.
Ignorando el texto claro de la Regla 34.3(b)(3), supra,
la cual enumera de forma separada la capacidad y discreción
del tribunal para eliminar todas o parte de las alegaciones
7Íd., pág. 196.
AC-2020-0082 18
o dictar sentencia en rebeldía ante la negativa de una parte
a obedecer una orden para descubrir prueba, este Tribunal
fundamenta la alegada equivalencia en el efecto práctico entre
ambas sanciones en ciertos precedentes que, a mi juicio,
además de antiguos e imprecisos, fueron representados
inadecuadamente.
De entrada, Polo v. Domínguez, Juez de Distrito, 15 DPR
607 (1909), trata sobre la improcedencia del uso de un recurso
de certiorari para atender una controversia luego de que el
Tribunal de Primera Instancia denegara una enmienda a la
contestación a la demanda. En aquel entonces, cuando este
Tribunal expresó que procedía dictar sentencia en contra del
peticionario, se refirió a su determinación de anular el
recurso que había expedido, no ante el foro de primera
instancia por la ausencia de una alegación de la parte. Ello
se desprende manifiestamente de tal dictamen y demuestra la
ausencia de relación entre aquella controversia y la que
atendemos hoy.8
8A continuación, el texto íntegro de la la sección
dispositiva del caso:
Por cuanto la peticionaria en este caso tiene un
remedio expedito y adecuado por medio de un recurso
ordinario de apelación y no existe necesidad para
un auto de certiorari, [e]ste debe ser denegado,
permitiéndosele a la corte inferior el que proceda
con la vista de la causa, según su discreción
propiamente ejercitada. De acuerdo con esta opinión
del caso, se sigue que el auto de certiorari
anteriormente expedido debe anularse con costas
contra la peticionaria, y que se dicte sentencia en
este caso de acuerdo con esta opinión. Polo v.
Domínguez, Juez de Distrito, 15 DPR 607, 610 (1909).
AC-2020-0082 19
De otra parte, en Acevedo v. Compañía Telefónica de
Puerto Rico, 102 DPR 787 (1974), como reconoce la Opinión
mayoritaria, este Tribunal expresó que la eliminación de las
alegaciones bajo la antigua Regla 37.2 de Procedimiento Civil
de 1958, 32 LPRA ant. Ap. II, por ausentarse a una conferencia
preliminar a juicio, priva a la parte de su día en corte.
Ahora bien, no solo es necesario señalar que tal sanción fue
revocada por este Tribunal debido a su severidad extrema ante
las circunstancias, sino que también la disposición en
cuestión es distinguible de la Regla 34.3 de Procedimiento
Civil, supra, que hoy analizamos, la cual, según se expuso
anteriormente, divide las sanciones de la eliminación de las
alegaciones y un dictamen en rebeldía. De hecho, la
disposición reglamentaria sobre la cual versa el caso antes
citado ya no existe en nuestro ordenamiento, por lo que un
análisis por analogía entre esta y la que hoy nos ocupa es
desacertado.
Asimismo, la Opinión mayoritaria sostiene que
Continental Ins. Co. v. Isleta Marina, supra, demuestra la
transición orgánica que siempre ha avalado este Tribunal entre
la eliminación de las alegaciones y la anotación de rebeldía.
No obstante, el propio dictamen citado recalca que corresponde
al tribunal optar por la sanción específica que impone. En
tal caso, el tribunal escogió eliminar las alegaciones y
anotar la rebeldía. De otro lado, valga mencionar que
Continental no provee un análisis detallado de la relación
AC-2020-0082 20
entre la eliminación de las alegaciones y la anotación de
rebeldía, pues lo cierto es que tal precedente versa
propiamente sobre el peso de la prueba sobre la parte
demandante cuando a la otra parte se le ha anotado la
rebeldía. Como hemos visto, en el caso ante nuestra
consideración, la realidad fáctica es radicalmente distinta.
Finalmente, aunque la Opinión mayoritaria cita a Arce v.
Club Gallístico de San Juan, 105 DPR 305 (1976), como ejemplo
de que “expresamos hace más de cuarenta años […] que luego de
una orden para eliminar las alegaciones de la parte demandada
procede ‘declararla en rebeldía y resolver la causa en su
contra’”9, es necesario destacar que tal atribución es, aún
bajo la interpretación más generosa, exagerada.
La realidad es que Arce solo menciona la eliminación de
las alegaciones y la anotación de rebeldía de forma incidental
y como parte de una lista de ejemplos sobre las sanciones que
el tribunal tiene la facultad para imponer. Esto, debido a
que los peticionarios en aquel caso protestaron el poder del
tribunal para desestimar el caso como sanción. Es decir, el
precedente citado por el criterio mayoritario como vinculante
no solo guarda una relación, como mucho, marginal con la
controversia que hoy está ante nuestra consideración, sino
que también requiere un esfuerzo monumental para interpretar
que este declara de forma contundente que la eliminación de
las alegaciones conlleva de forma obligatoria la declaración
9Véase, Opinión mayoritaria, pág. 20.
AC-2020-0082 21
de rebeldía y la resolución en contra de la parte sobre quien
recayó tal acto.
Ahora bien, lo que sí surge de un precedente más reciente
y atinente de este Tribunal es que la eliminación de las
alegaciones “no es óbice para que este, por medio de una vista
evidenciaria, pueda probar la veracidad de sus aseveraciones
en aras de resolver las controversias de hechos que aún
persisten en el caso de autos”. (Negrilla suplida). Mejías v.
Carrasquillo, 185 DPR 288, 306 (2012). Es decir, citando al
propio Continental, establecimos que
la eliminación de las alegaciones no conlleva, de
por sí, la inexistencia de controversias de hechos
que justifica el que no se celebre una vista
evidenciaria. Hemos dispuesto reiteradamente que el
proceso de formar consciencia judicial exige que se
compruebe cualquier aseveración mediante prueba y,
para ello, el tribunal deberá celebrar las vistas
que crea necesarias y adecuadas. (Negrilla
suplida). Mejías v. Carrasquillo, supra.
A pesar de esta expresión patente e ineluctable, hoy,
este Tribunal avaló una determinación en la dirección opuesta
bajo una nueva reformulación del efecto de la eliminación de
las alegaciones bajo la Regla 34.3(b), supra. Esto, a pesar
de que, al momento en el que el Tribunal de Primera Instancia
redefinió los parámetros de la Resolución original y, en
consecuencia, impuso una nueva y más severa sanción años
después del incumplimiento, no existía disposición legal o
jurisprudencia alguna en nuestro ordenamiento que equiparara
las consecuencias de la eliminación de las alegaciones y la
anotación de rebeldía.
AC-2020-0082 22
Es decir, el Tribunal de Primera Instancia actuó sin
arraigo alguno en Derecho y este Tribunal, ex post facto,
decidió proveérselo y aplicarlo retroactivamente a este caso
sin explicación alguna de por qué. En el momento en el que se
produjo la Resolución en controversia, nuestro estado de
Derecho establecía sin ambigüedades que la anotación de
rebeldía implicaba que se daban por admitidos los hechos bien
alegados y que la parte en rebeldía quedaba imposibilitada de
presentar prueba a su favor. Por su parte, la parte cuyas
alegaciones fueran eliminadas como sanción todavía tenía la
capacidad de impugnar los méritos de la reclamación de la
parte contraria, aunque no pudiera demostrar los méritos de
las defensas que fueron consignadas en las alegaciones
eliminadas. Fue, precisamente, por tal razón que el Tribunal
de Primera Instancia se rehusó a conceder la anotación de
rebeldía y la prohibición de presentar prueba, como también
a dictar sentencia tomando los hechos de la demanda como
ciertos, y así lo hizo constar en la Resolución de 2015.
Ciertamente, la parte recurrida no fue hiperbólica al
describir este desarrollo como una segunda y más severa
sanción por una conducta que ya había sido adjudicada y
penalizada. El principio rector de la doctrina de la ley del
caso es conferirle certeza a las determinaciones de los
tribunales de modo que las partes puedan conducirse con
confianza dentro de sus márgenes. No solo esta nueva
determinación le roba certeza a un dictamen que orientó a las
AC-2020-0082 23
partes por cinco (5) años, sino que ello también se hizo en
abierta oposición al estándar que requiere un error patente
en Derecho o una grave injusticia para obviarle.
A pesar de que la Mayoría insiste en que no intervenir
con la Sentencia del Tribunal de Apelaciones hubiera producido
“un resultado evidentemente injusto”,10 tal injusticia nunca
se manifiesta explícitamente en el razonamiento de la Opinión
mayoritaria. O, por lo menos, esta no se expresa más allá de
parecer articular las razones por las que la conducta de los
recurridos hace tantos años merece ser sancionada por segunda
ocasión y de una forma más severa debido a las consecuencias
que esta tuvo sobre Mitsubishi.11 Así las cosas, cabe
preguntarse si al modificar de forma tan drástica la posición
de las partes cuando por fin se verán los méritos del caso en
un juicio, entonces la injusticia patente no se manifiesta en
cómo la parte recurrida se ve afectada de forma aún más severa
cinco (5) años después de que fue penalizada en primer lugar.
En fin, por entender que no existe fundamento para
intervenir con la determinación del Tribunal de Apelaciones,
la cual está firmemente cimentada tanto en el expediente como
10Íd., pág. 23.
11Íd., pág. 25. Según la Opinión mayoritaria: “[r]esolver
de esa manera haría que la sanción de la eliminación de
todas las alegaciones resulte inoficiosa, máxime cuando la
conducta de los recurridos coloc[ó] al peticionario en un
estado de indefensión para promover su causa de acción.”
(Énfasis en el original).
AC-2020-0082 24
en el Derecho, y que no se sustenta la redefinición que impone
esta Opinión en el ordenamiento procesal civil, disiento.
IV
Por los fundamentos antes expresados, disiento del
proceder mayoritario. En cambio, hubiera confirmado la
Sentencia emitida por el Tribunal de Apelaciones y devuelto
el caso al foro primario para la continuación de los
procedimientos.
Luis F. Estrella Martínez
Juez Asociado
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"2",
"5",
"8",
"12",
"14",
"16",
"18",
"20",
"22",
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]
Law
9882486
[SEGMENT 1]
[CITATION]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
CASE NO. 2-22-27
PLAINTIFF-APPELLEE,
v.
THOMAS ALAN STINEBAUGH, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2021 CR 0125
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: July 15, 2024
APPEARANCES:
Andrew R. Mayle and Benjamin G. Padanilam for Appellant
Micah R. Ault for Appellee Case No. 2-22-27
WILLAMOWSKI, P.J.
Introduction
{¶1} Defendant-appellant Thomas A. Stinebaugh (“Stinebaugh”) appeals the
judgment of the Auglaize County Court of Common Pleas, arguing that two of his
five convictions are not supported by sufficient evidence and that his trial counsel
was ineffective. On appeal, the issue is not whether Stinebaugh acted ethically but
whether the State properly established the two challenged convictions.
{¶2} Upon review, the conviction for having an unlawful interest in a public
contract is reversed because the State charged Stinebaugh under R.C. 2921.42(A)(1)
but failed to prove he had a definite and direct interest in the contract at issue. The
conviction for theft in office is reversed because the State failed to prove that the
expenditure at issue lacked authorized consent. This decision does not affect the
three convictions Stinebaugh has for conflicts of interest in violation of R.C.
103.02(D).
{¶3} Further, while Stinebaugh asserts that his attorney was ineffective, he
failed to prove that his counsel’s performance was deficient. For the reasons set
forth below, the judgment of the trial court is affirmed in part and reversed in part.
Facts and Procedural History
{¶4} On January 1, 2016, Stinebaugh took office as the Mayor of the City of
Wapakoneta. Tr. 322, 931. As this was a part-time position, Stinebaugh continued
to operate his building and remodeling company in addition to his official duties.
Case No. 2-22-27
Tr. 322, 923. Prior to taking office, Stinebaugh asked Chad Scott (“Scott”) to serve
as the city’s safety service director. Tr. 319. Scott accepted this offer and began
working in this position at the end of January 2016. Tr. 322. In this capacity, Scott
reported directly to Stinebaugh and had no other supervisors. Tr. 320-321. In turn,
the superintendents in the departments of engineering, waste management, and
public works reported to Scott. Tr. 321.
{¶5} In April of 2018, Stinebaugh applied for a building permit from the city
so that he could construct a house for a client on a lot at 708 Fairview Drive in
Wapakoneta. Tr. 338-339, 573. This property had been a part of a parcel of land
that Stinebaugh had previously purchased and then divided into two lots. Tr. 946,
971-972. These two lots sat in between Fairview Drive and South Street. Tr. 738.
However, the portion of South Street that was directly behind these lots was an
unimproved right-of-way. Tr. 532, 738. A trailer park was located on Fairview
Drive across the street from these two lots. Tr. 532, 736.
{¶6} The superintendent of zoning and engineering, Mary Ruck (“Ruck”),
testified that Andy Beane (“Beane”) was the technician from the Engineering
Department who processed Stinebaugh’s application for a building permit. Tr. 531.
Ruck testified that Beane told Stinebaugh that he would have to tie the house into a
public sewer line that ran along the other side of Fairview Drive and serviced the
Case No. 2-22-27
units in the trailer park.1 Tr. 532. To tie into this existing sewer line, Stinebaugh
would have had to either “bore under the street” and connect to the tap with a pipe
or “open cut” the street, lay the pipe, and repair the roadway. Tr. 545.
{¶7} Ruck testified that Stinebaugh “contacted our office and did not want
to tap into the Fairview line” across the street from the lots. Tr. 532. She stated that
Stinebaugh instead wanted the city to extend an existing public sewer line on the
improved portion of South Street into the unimproved right-of-way that was located
behind the house he had built. Tr. 532. Stinebaugh would then tap the house into
the extended public sewer line behind the property. Tr. 532-533. In contrast to the
more expensive process of tying the house into the sewer line across Fairview Drive,
Stinebaugh would have to provide for a $370.00 tap fee to connect the house to an
extended public sewer line behind the house. Tr. 545. Ruck testified that Beane
examined the property and concluded that the extension of the public sewer line on
South Street was feasible. Tr. 534.
{¶8} Stinebaugh testified that, contrary to Ruck’s testimony, Beane never
told him that he would have to tie into a public sewer line across the street in the
process of applying for the building permit. Tr. 948. He stated that, after the house
was framed, Ruck came to the site and told him that he would have to tap into a
sewer line across Fairview Drive. Tr. 948-949. Stinebaugh testified that, after he
1
At trial, a dispute existed as to whether the sewer line that serviced the mobile home park across the street
was public or private. Tr. 435, 568, 580-582, 736, 743, 950. Ex. 50.
Case No. 2-22-27
questioned whether he had to dig across the street, Ruck pointed out that a public
sewer line was located on South Street behind the lot and told him that she would
send Beane to the property to determine the feasibility of using that public sewer
line. Tr. 949-950.
{¶9} Scott testified that Stinebaugh then approached him and spoke about
having the city extend the public sewer line from the improved portion of South
Street and into the unimproved right-of-way behind 708 Fairview Drive. Tr. 339.
Scott testified about his response as follows:
I told Tom [Stinebaugh] I thought, you know, like any other case in
the City, the developer installs the sanitary sewer line, water line, and
then the City takes it over. It’s right in the codified ordinances of the
City where the developer is responsible for the installation of water
and sewer.
Tr. 339. Scott then testified that Stinebaugh “didn’t like [his] * * * answer.” [CITATION]
. He also explained that the safety service director would have to sign a purchase
order for such a project to move forward. [CITATION]
{¶10} Scott testified that, around this time, Stinebaugh indicated that he was
going to begin looking for a new person to serve as safety service director. [CITATION]
. Around two months after this conversation, Stinebaugh terminated Scott in
early July of 2018. [CITATION]
. Stinebaugh testified that he terminated Scott because
other department heads were complaining about him. [CITATION]
. He also stated that
Scott had begun “bad mouthing” him after their conversation about finding a new
safety service director. [CITATION]
Case No. 2-22-27
{¶11} Ruck testified that Stinebaugh “directed” her department “to put in the
sewer” line along the unimproved right-of-way. [CITATION]. She affirmed that she
believed that the city should not extend the public sewer line as the developer
typically provides for this cost. [CITATION]. Ruck testified that she reported to the
safety service director and the mayor. [CITATION]. She voiced her concerns with the
safety service director but “was told to do it.” [CITATION]. Ruck began the process of
installing the sewer line because she “was told by the Mayor to do it.” [CITATION]. She
added that she “did it because he was the Mayor. And he could fire you if he wants
to.” [CITATION].
{¶12} The Engineering Department then contacted Schaub Excavating to
complete this project. [CITATION]. The purchase order for this expenditure was signed
by Ruck, and the new safety service director, as well as by the city auditor. Ex. 24,
25. [CITATION]. The contractor was then directed to extend the public sewer line
completely along the unimproved right-of-way and to install roughly fourteen
different taps to accommodate future housing projects on the empty lots that are
located along this stretch of real estate. [CITATION]. See [CITATION].
{¶13} Ruck was asked why the city did not simply extend the public sewer
[SEGMENT 2]
line the “extra few feet” that was required to accommodate the house at 708
Fairview Drive. [CITATION]. She explained that extending only “a little section” of the
public sewer line might inhibit the effectiveness of further extensions down the
unimproved right-of-way to accommodate future housing builds on the other vacant
Case No. 2-22-27
lots. Tr. 562-563. For this reason, her office decided to extend the public sewer
line beyond what was necessary to service 708 Fairview Drive. Tr. 563.
{¶14} Schaub Excavating then laid roughly 750 feet of eight-inch pipe to
extend the South Street sewer line along the unimproved right-of-way. Tr. 539, 544.
After completing this project, Schaub Excavating submitted an invoice on October
5, 2018. Tr. 739. The total cost of this project was $13,234.00. Tr. 540, 737.
{¶15} On July 22, 2021, Stinebaugh was indicted on eight counts of having
an unlawful interest in a public contract in violation of R.C. 2921.42(A)(1), fourth-
degree felonies; eight counts of conflict of interest in violation of R.C. 102.03(D),
first-degree misdemeanors; and one count of theft in office in violation of R.C.
2921.41(A)(1), a third-degree felony.2 Doc. 1. On motion of the State, the trial
court dismissed three of the counts of having an unlawful interest in a public contract
and three of the counts of conflict of interest. Tr. 5. On October 24, 2022, a jury
trial on the remaining charges began.
{¶16} On October 29, 2022, the jury returned verdicts of guilty on three
counts of conflict of interest in violation of R.C. 102.03(D), first-degree
misdemeanors; one count of having an unlawful interest in a contract in violation of
R.C. 2921.42(A)(1), a fourth-degree felony; and one count of theft in office in
2
On appeal, Stinebaugh only challenges the felony convictions that relate to the extension of the public sewer
line. For this reason, we have only set forth the facts that describe the conduct that is relevant to these
charges.
Case No. 2-22-27
violation of R.C. 2921.41(A)(1), a fifth-degree felony.3 Doc. 120, 124. The jury
acquitted Stinebaugh of the remaining six charges. Doc. 120, 124. The trial court
released its judgment entry of sentencing on November 14, 2022. Doc. 120.
{¶17} Stinebaugh filed his notice of appeal on December 12, 2022. Doc.
127. On appeal, he raises the following three assignments of error:
First Assignment of Error
Stinebaugh’s fourth-degree felony conviction under R.C.
.42(A)(1) is erroneous as a matter of law on insufficiency
grounds because, at most, the evidence demonstrated he had an
interest in the benefits of the underlying contract, which is a first-
degree misdemeanor under R.C. 2921.42(A)(4).
Second Assignment of Error
Stinebaugh’s fifth-degree felony conviction under R.C.
.41(A)(1) is erroneous as a matter of law on insufficiency
grounds because the City of Wapakoneta has the authority to
install sewer lines in the public right-of-way and three
appropriate city officials—including the independently elected
city auditor—consented to the sewer line extension. Thus, no
predicate theft offense, which is necessarily distinct from having
an interest in the benefits of any sewer line, was proven.
Third Assignment of Error
The trial court plainly erred in admitting during the State’s case
in chief local Wapakoneta ordinances that do not apply to
Stinebaugh’s situation. Relatedly, appellant’s trial counsel
rendered ineffective assistance of counsel in handling this issue
and in failing to properly argue for acquittals under Criminal
Rule 29.
3
The jury did not come to an agreement as to the value of the property or services that was stolen. Doc. 115.
For this reason, the conviction was reduced from a third-degree felony to a fifth-degree felony. Doc. 124.
Case No. 2-22-27
Stinebaugh does not challenge the sufficiency of the evidence supporting his first-
degree misdemeanor convictions on appeal.
First Assignment of Error
{¶18} Stinebaugh asserts that his conviction for having an unlawful interest
in a public contract is not supported by sufficient evidence.
Legal Standard
{¶19} A challenge to the sufficiency of the evidence “addresses the question
of whether adequate evidence was produced for the case to be considered by the
trier of fact” and, therefore, whether the evidence can support the verdict. [CITATION]. Thus, appellate courts are “not to examine
whether the evidence presented should be believed but should rather ‘examine the
evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.’”
[CITATION], quoting [CITATION].
On appeal, the applicable standard of review ‘is whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found that the essential elements
of the crime were proven beyond a reasonable doubt.’
[CITATION], quoting [CITATION].
Case No. 2-22-27
{¶20} Ohio’s ethics law addresses public contracts in R.C. 2921.42. This
provision reads, in its relevant part, as follows:
(A) No public official shall knowingly do any of the following:
(1) Authorize, or employ the authority or influence of the public
official’s office to secure authorization of any public contract in which
the public official, a member of the public official’s family, or any of
the public official’s business associates has an interest;
***
(3) During the public official’s term of office or within one year
thereafter, occupy any position of profit in the prosecution of a public
contract authorized by the public official or by a legislative body,
commission, or board of which the public official was a member at
the time of authorization, unless the contract was let by competitive
bidding to the lowest and best bidder;
(4) Have an interest in the profits or benefits of a public contract
entered into by or for the use of the political subdivision or
governmental agency or instrumentality with which the public official
is connected;
***
(Emphasis added). A violation of R.C. 2921.42(A)(1) is a fourth-degree felony
while a violation of R.C. 2921.42(A)(3) or R.C. 2921.42(A)(4) is a first-degree
misdemeanor. R.C. 2921.42(E).
{¶21} Further, R.C. 102.03(D) contains one of Ohio’s conflicts of interest
laws and reads as follows:
No public official or employee shall use or authorize the use of the
authority or influence of office or employment to secure anything of
value or the promise or offer of anything of value that is of such a
Case No. 2-22-27
character as to manifest a substantial and improper influence upon the
public official or employee with respect to that person’s duties.
(Emphasis added.) A violation of R.C. 102.03(D) is a first-degree misdemeanor.
R.C. 102.99(B).
Legal Analysis
{¶22} In this appeal, the issue is not whether Stinebaugh acted appropriately
with regard to the extension of the public sanitary sewer line. Rather, the issue is
whether the State presented evidence at trial that establishes Stinebaugh’s conduct
met the specific elements of the offense defined in R.C. 2921.42(A)(1). To establish
a conviction for having an unlawful interest in a public contract in violation of R.C.
2921.42(A)(1), the State must prove that a “[1] public official * * * [2] knowingly
authorize[d] or employ[e]d the authority or influence of the public official’s office
[3] to secure authorization of any public contract [4] in which the public official, a
member of the public official’s family, or any of the public official’s business
associates [5] ha[d] an interest.” R.C. 2921.42(A)(1). OEC Adv. Op. [CITATION]. On appeal, Stinebaugh argues that the State failed to prove the fifth
element of this offense.4
{¶23} To support this assertion, Stinebaugh notes that the contract at issue
was between the city and Schaub Excavating. He points out that he was not a party
4
Since no evidence was presented that suggests a member of Stinebaugh’s family or one of his business
associates may have had a prohibited interest in the contract, we will limit our analysis to whether he had an
interest in the contract within the meaning of R.C. 2921.42(A)(1).
[SEGMENT 3]
Case No. 2-22-27
to the contract and was not affiliated with Schaub Excavating. Stinebaugh also
points out that R.C. 2921.42(A)(1) prohibits a public official from having “an
interest” in a public contract while R.C. 2921.42(A)(4) prohibits a public official
from “[h]av[ing] an interest in the profits or benefits of a public contract.” He argues
that this distinction is important as a violation of R.C. 2921.42(A)(1) is a felony and
a violation of R.C. 2921.42(A)(4) is a misdemeanor. Stinebaugh asserts that, “at
most, [he] * * * had an interest in [a] * * * conceivable benefit” of the contract.
(Emphasis sic.) Appellant’s Brief, 12.
{¶24} In interpreting R.C. 2921.42(A), courts have turned to the opinions of
the Ohio Ethics Commission (“OEC”) as a source of persuasive authority. [CITATION]. See [CITATION].
{¶25} In these opinions, the OEC has said that an “‘interest’ refers to a right
or claim * * *.” OEC, Adv. Op. 93-008 (May 21, 1993) (relying on several
dictionary definitions of this term). To be prohibited by R.C. 2921.42(A), an
interest “must be definite and direct and may be either pecuniary or fiduciary in
nature.” OEC, Adv. Op. 90-007 (May 14, 1990). See [CITATION]. “The determination of whether a public official or employee
has an ‘interest’ in a public contract entered into by a governmental entity depends
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upon the facts and circumstances of each particular situation.” OEC, Adv. Op. 90-
003 (Jan. 18, 1990).
{¶26} In Adv. Op. No. 92-013, the OEC considered whether a public official
had an interest in drainage and sidewalk improvements that were conducted as part
of a neighborhood revitalization program and that benefited a property that he
owned. OEC, Adv. Op. 92-013 (Aug. 14, 1992). The OEC began by determining
whether the public official had a prohibited interest under R.C. 2921.42(A), stating:
[i]n this instance, the consideration or benefit is not being provided
directly to the property owner and the property owner is not providing
the service to the political subdivision or performing the work under
the contract. The property owner does not have the same kind of
interest in a political subdivision’s public improvements as he does in
a loan, or grant, or tax abatement that is awarded directly to him. The
interest of a property owner who will benefit from an infrastructure
improvement made by or for the use of his political subdivision as part
of a neighborhood revitalization program is not direct for purposes of
R.C. 2921.42.
***
While it is undisputed that property owners in an area of the village
that will receive infrastructure improvements may benefit from the
infrastructure improvements * * * and may have an ‘indirect’ interest
in the public contract, no transaction exists between the village and
the affected property owners * * * which would indicate that the
property owners have a direct ‘interest’ in the public contract.
Case No. 2-22-27
Id.5 The OEC then concluded that the public official in the situation it was
examining did not have a prohibited interest under R.C. 2921.42(A)(1) and R.C.
2921.42(A)(4). However, the OEC went on to give the following guidance:
a public official may well be deemed to have an interest in the profits
or benefits [R.C. 2921.42(A)(4)] or occupy a position in the
prosecution of a public contract [R.C. 2921.42(A)(3)] in
circumstances where the benefit to the council member’s property is
selective, differential, or in disproportion to the benefit provided to
other property in the political subdivision or a portion thereof.
(Emphasis added.) Id. The OEC then proceeded to an analysis of R.C. 102.03(D),
which prohibits a public official from using his or her influence to “secure anything
of value.” The OEC stated that R.C. 102.03(D) “prohibits a public official from
participating in * * * matters which would provide a particular and definite
pecuniary benefit to property in which he has an interest.” [CITATION].
See also [CITATION].
{¶27} We turn now to the facts of the case presently before us. Since
Stinebaugh was charged under R.C. 2921.42(A)(1), the focus of our analysis will
be Stinebaugh’s relationship to the public contract at issue. As with the situation in
[CITATION], no evidence suggests Stinebaugh was a party to the contract,
5
The OEC also noted that situations may arise in which a public official does not receive consideration under
a contract but may still have an interest in the contract. The OEC gave the examples of a public official
acting as a subcontractor who performs work under the contract or a public official who receives a distributive
share of the proceeds paid through the contract. In these examples, the public official was “directly benefiting
from the contract.” [CITATION].
Case No. 2-22-27
received consideration through the contract, performed any work under the contract,
or had any other connection with the transaction between the city and Schaub
Excavating that could be considered direct to Stinebaugh. Thus, Stinebaugh had the
type of interest that a property owner has in a political subdivision’s infrastructure
improvements rather than the type of interest that a property owner has in a loan,
grant, or tax abatement received directly from a political subdivision.[CITATION]
{¶28} In evaluating infrastructure projects, the OEC distinguished between
infrastructure projects that provide a generalized benefit—such as a comprehensive
neighborhood revitalization program—and infrastructure projects that confer a
benefit to the public official that is “selective, differential, or in disproportion to the
benefit provided to other property in the political subdivision * * *.” [CITATION] In the case presently before us, the public sewer line
was extended along an unimproved right-of-way and fitted with roughly fourteen
taps. Tr. 576. These additional taps were installed for the purpose of benefiting any
future homebuilder that might construct a house on one of the vacant lots alongside
the extended public sewer line. Tr. 562-563.
{¶29} However, while others besides Stinebaugh would ostensibly reap the
benefits of this public sewer line extension project, this situation is distinct from the
[CITATION]
The sewer line was installed in October of 2018. Tr. 539, 739. At the time of installation, Stinebaugh
owned one parcel of land that sat alongside the extended sewer line. Tr. 622. He had owned two parcels of
land, but he built a house on one of these parcels and transferred the deed to the homebuyer in July of 2018.
Tr. 561, 621. Thus, at the time of the extension project, Stinebaugh was not the owner of the house that was
connected to the extended sewer line. Rather, his purchaser was the property owner by this time. Tr. 379.
Case No. 2-22-27
comprehensive neighborhood revitalization program described in [CITATION].
In fact, this situation bears some resemblance to the OEC’s example of selective,
differential, or disproportionate benefits. In that example, the public official
“owned a large tract of undeveloped land and was the only landowner in the political
subdivision to receive the improvements.” OEC, [CITATION].
{¶30} In this case, the primary objective of this project was apparently to
confer a benefit on the lot where Stinebaugh had constructed a house. At trial, Ruck
testified that another person requested the city to pay for the installation of a sewer
line in the same area as the house Stinebaugh had constructed but was denied. Tr.
583. The evidence in the record also indicates that the extension of this sewer line
to Stinebaugh’s home build was a departure from the customary practices governing
such projects in Wapakoneta.
{¶31} Even assuming that Stinebaugh received a selective, differential, or
disproportionate benefit from the sewer line extension, he would, under the
reasoning of the OEC, only “be deemed to have an interest in the profits or benefits
or occupy a position in the prosecution of a public contract * * *.” OEC, [CITATION]. An interest in the profits or benefits of a public contract
would implicate R.C. 2921.42(A)(4) while occupying a position in the prosecution
of a public contract would implicate R.C. 2921.42(A)(3). Further, in [CITATION],
the OEC also noted that a public official’s participation in a decision to approve
Case No. 2-22-27
[SEGMENT 4]
an infrastructure project under which he or she would realize a benefit could
constitute a conflict of interest that violates R.C. 102.03(D).7
{¶32} However, the OEC does not suggest that a selective, differential, or
disproportionate benefit in an infrastructure project would give a public official a
definite and direct interest in the contract as required by R.C. 2921.42(A)(1).
Rather, the OEC describes a public official with a selective, differential, or
disproportionate benefit as “hav[ing] a definite and direct interest in, and profit
from, the improvements.” [CITATION]. Thus, the public
official may come to have an interest in the improvements as the profits or benefits
of the public contract, but this does not mean that the public official has an interest
in the contract itself. Without such an interest in the contract, a defendant cannot
be found guilty of violating R.C. 2921.42(A)(1). If the State had charged
Stinebaugh with a violation of R.C. 2921.42(A)(3) or R.C. 2921.42(A)(4), a
different result may have been obtained. Since we do not have that case before us,
we do not decide that question.
{¶33} In summary, no evidence in the record establishes that Stinebaugh had
a right or claim under the contract that was both definite and direct. Thus, the State
failed to establish that he had a prohibited interest that falls within the meaning of
R.C. 2921.42(A)(1). Because the evidence does not establish an essential element
7
In this case, Stinebaugh was convicted of violating R.C. 102.03(D) as the result of his actions with regard
to the public sewer line extension project. This conviction is not challenged on appeal.
Case No. 2-22-27
of the charged offense, Stinebaugh’s conviction for having an unlawful interest in a
public contract in violation of R.C. 2921.42(A)(1) is reversed. Accordingly, the
first assignment of error is sustained.
Second Assignment of Error
{¶34} Stinebaugh argues that the predicate offense for his conviction for
theft in office is not supported by sufficient evidence.
Legal Standard
{¶35} We reincorporate the legal standard governing sufficiency-of-the-
evidence challenges as set forth under the first assignment of error. To establish a
conviction for theft in office in violation of R.C. 2921.41(A)(1), the State must
prove that a “[1] public official * * * [2] committ[ed] any theft offense, as defined
in” R.C. 2913.01(K), [3] and “use[d his or her] * * * office in aid of committing the
offense or assent[ed] to its use in the aid of committing the offense[.]” The
definition of theft offenses in R.C. 2913.01(K) includes violations of R.C.
2913.02(A)(1).8 To prove a defendant committed the offense of theft in violation
of R.C. 2913.02(A)(1), the State must establish that he or she, “[1] with purpose to
deprive the owner of property or services, * * * [2] knowingly [3] obtain[ed] or
exert[ed] control over either the property or services * * * [4] [w]ithout the consent
of the owner or person authorized to give consent[.]”
8
The jury instructions specified that R.C. 2913.02(A)(1) was the theft offense that Stinebaugh was alleged
to have committed as part of the theft in office charge. Tr. 1066. See also Tr. 991. See [CITATION].
====== End of Document ====== Case No. 2-22-27
Legal Analysis
{¶36} The State’s theory underlying this theft charge rests on three key
assertions. First, the State asserts that Wapakoneta Codified Ordinance 1248.07(a)
required Stinebaugh, as a subdivider, to bear the costs of extending the public sewer
line. Second, because this requirement is in an ordinance, the State asserts that “only
city council had the authority to consent” to an expenditure in which the city—rather
than the subdivider—bore the costs of extending a public sewer line. Appellant’s
Brief, 9. Third, since Stinebaugh did not seek city council’s approval for the use of
public funds on this infrastructure project, the State argues Stinebaugh committed
theft in violation of R.C. 2913.02(A)(1) by failing to obtain the consent of the “only”
entity authorized to consent to an expenditure that contravened an ordinance. Id.
Tr. 991, 1038, 1066. We will examine each of these three assertions to determine
whether the State proved that Stinebaugh violated R.C. 2913.02(A)(1).
{¶37} First, we examine whether the ordinance identified by the State
required Stinebaugh to bear the costs of extending the public sewer line. The
interpretation of an ordinance presents a question of law and is reviewed de novo
on appeal. [CITATION]. Under a de novo standard,
the appellate court conducts an independent review of the matter, giving no
Case No. 2-22-27
deference to the interpretation reached by the trial court.[CITATION]
{¶38} Further, “[o]ne important rule for interpretation of legislation is that in
a criminal case any ambiguity must be resolved in favor of the accused.” [CITATION] “Ordinances defining offenses
or penalties shall be strictly construed against the city and liberally construed in
favor of the accused.” [CITATION] Further, “ambiguity in a criminal statute is construed strictly so as to
apply the statute only to conduct that is clearly proscribed.” [CITATION]
{¶39} The State argues that Stinebaugh did not do what was required by
Wapakoneta Cod. Ord. 1248.07(a).11 This provision reads as follows:
Public Sanitary Sewers; Extensions. If a subdivision can be
reasonably served by the extension of an existing public sanitary
sewer, as determined by the Planning Commission, the subdivider or
developer shall provide a system of sanitary sewer mains and shall
provide lateral connections for each lot. Where a public sanitary
sewer is not reasonably accessible, the subdivider, the owner or the
9
The trial court did not provide the jury with any instructions regarding what legal requirements are contained
in Wapakoneta Cod. Ord. 1248.07(a).
10
We recognize that the provision identified by the State is not a criminal ordinance. See Wapakoneta Cod.
Ord. 606.04(a). However, the State is using this ordinance to define Stinebaugh’s conduct as constituting a
felonious theft offense in a criminal prosecution. For this reason, we will strictly construe any ambiguities
in these provisions in favor of the criminal defendant. [CITATION]
11
The State also introduced Wapakoneta Cod. Ord. 1244.04(b) at trial. Stinebaugh asserts that this provision
outlines inapplicable platting procedures and mentions developers rather than subdividers. This provision
describes what is necessary in the platting process after a “developer has constructed the required water and
sanitary sewer facilities * * *.” Wapakoneta Cod. Ord. 1244.04(b). Even if this provision were applicable,
what sanitary sewer facilities are “required” would still be defined in Wapakoneta Cod. Ord. 1248.07(a).
Case No. 2-22-27
developer may provide septic tanks for each lot, provided that the
septic tanks are installed in accordance with State and/or County
Board of Health requirements. Whenever main lines are installed,
sewer and water mains shall be extended to property lines of the
subdivision. Connections to public sanitary sewer lines shall be
subject to the approval of and according to the specifications of, the
Director of Public Service and Safety or the County Sanitary
Engineer, depending upon jurisdiction.[CITATION]
Three sets of words are used in this provision to describe the different components
of the sanitation infrastructure: (1) public sanitary sewer line; (2) sanitary sewer
mains or main lines; and (3) lateral connections.[CITATION]
{¶40} The language of this ordinance clearly requires a subdivider[CITATION] to
provide a system of “sanitary sewer mains” within the subdivision. This ordinance
also clearly requires a subdivider to provide “lateral connections” that integrate each
of the lots in the subdivision into the system of “sanitary sewer mains.” This
provision then indicates that “an existing public sewer line” is to be extended from
its location and connected to the system of “sanitary sewer mains” constructed
inside the subdivision. However, this ordinance does not state who is responsible
for “the extension of [the] * * * existing public sanitary sewer.” Wapakoneta Cod.
Ord. 1248.07(a).
[CITATION] states that the planning commission is to be comprised of the mayor, the
director of public service and safety, and three citizens of the city who are appointed by the mayor.[CITATION] states that the planning commission shall also serve as the platting commission.
[CITATION]
Part Twelve of the ordinances does not provide any definitions for these terms. Wapakoneta Cod. Ord.
1040.02(nn) does define a “public sewer” as “a sewer owned and operated by a public authority.”
[CITATION]
Wapakoneta Codified Ordinances 1240.09(s) and 1240.09(t) provide definitions for “subdivider” and
“subdivision.” On appeal, [CITATION] asserts that he does not fall within these definitions.[CITATION] At trial, he did admit that he subdivided a parcel of land into two lots at 708 and 710 Fairview Drive.
[CITATION] We need not consider this argument to dispose of this case.
[SEGMENT 5]
Case No. 2-22-27
{¶41} The language of this provision does not state that the subidivider is
responsible for extending the existing public sanitary sewer line from a location
outside of the subdivision to the property line of the subdivision. Similarly, this
provision also does not hold the subdivider responsible for the costs of extending an
existing public sanitary sewer line in such a situation. While this ordinance
expressly requires the subdivider to provide “lateral connections” and a “system of
sanitary sewer mains,” it nowhere states that the subdivider is required to provide
for the extension of the “public sanitary sewer line” to the subdivision.
{¶42} Further, under the wording of this provision, the subdivider’s
responsibilities do not appear to extend beyond the property lines of the subdivision.
The ordinance at issue requires the mains in the sanitary sewer system to be run to
the “property lines of the subdivision.” [CITATION]. The requirement appears to exist to facilitate a connection at the property line of the
subdivision between the sanitary sewer mains installed within the subdivision and
an existing public sanitary sewer line that lies outside of the subdivision. Since the
subdivider is made responsible for providing the system of sanitary sewer mains
that connect the lots inside the subdivision, the subdivider would apparently be the
party responsible for running the requisite sanitary sewer mains to the inside
property lines of the subdivision.
{¶43} Importantly, this provision only requires the requisite sewer mains in
the sanitary system within the subdivision to be run to the property lines of the
Case No. 2-22-27
subdivision. Thus, the subdivider is not, by this ordinance, required to extend a
sanitary sewer main beyond the property lines of the subdivision and to the location
of any existing public sanitary sewer line that lies outside of the subdivision. This
provision also contains no language that requires a subdivider to extend the existing
public sanitary sewer line from its location outside the subdivision to the property
line of the subdivision. For these reasons, we conclude that, contrary to the State’s
first assertion, Wapakoneta Cod. Ord. 1248.07(a) does not require a subdivider to
provide for the extension of a public sanitary sewer line.
{¶44} Turning to the facts of this case, the record contains no indication that
Stinebaugh failed to provide the “sanitary sewer mains” or “lateral connections” for
the two lots comprising his “subdivision.” [CITATION]. Given the small size
of this subdivision, the sanitary sewer system was minimal and appears only to have
involved running a lateral connection from the house to where the public sewer line
had been extended along the city’s unimproved right-of-way.
{¶45} Ruck testified at trial that the public sanitary sewer line extension was
entirely located on the unimproved right-of-way that was owned by the city and did
not cross into the property at 708 Fairview Drive. [CITATION]. Thus, even
assuming that he qualifies as a subdivider, Stinebaugh appears to have covered the
costs that Wapakoneta Cod. Ord. 1248.07(a) required him to bear. Since this
provision did not require the subdivider to bear the costs of extending the public
Case No. 2-22-27
sanitary sewer line, the State did not establish that Stinebaugh failed to provide what
was expressly required by the identified ordinance.
{¶46} Before turning to the State’s second assertion, we note that the State
also introduced testimony that described the local, customary practices regarding
the extension of public sewer lines to subdivisions. Tr. 339, 352, 366, 430, 506,
511, 534-536, 546, 583. But see Tr. 379, 383. This testimony indicated that the
developer or subdivider typically provided for the extension of the public sewer line
to the subdivision. Tr. 339. Once completed, the extended public sewer line would
then be turned over to the city. Tr. 339. However, as discussed in our prior analysis,
the legislative body of the municipality did not make this customary practice
mandatory in the text of Wapakoneta Cod. Ord. 1248.07(a).15
{¶47} In closing arguments the State referred to the previous instances in
which this customary practice was followed as “the common law * * *.” Tr. 1038.
But this custom was not legally binding. Acting in contravention of custom is not
equivalent to acting in contravention of the law.
All crimes in Ohio must be based upon either legislative enactments
of the state or on ordinances enacted pursuant to the authority granted
to municipal corporations and an act to be punishable as a crime must
be specifically embraced within the terms of some enactment.
Broadly defined, a crime is an act prohibited by a legislative
enactment for the violation of which a penalty is provided.
15
Scott indicated at trial that he believed that the municipal ordinances required a subdivider to cover the
costs of a public sewer line extension. Tr. 339. However, we review the text of an ordinance de novo and,
in the context of this criminal case, do not conclude that Wapakoneta Cod. Ord. 1248.07(a) clearly requires
a subdivder to bear this cost. [CITATION], supra, at ¶ 9.
Case No. 2-22-27
[CITATION] In
determining whether city council’s consent was required in this case, custom is not
a substitute for the law. This Court will not affirm a conviction if the State only
established that the city council did not consent to a deviation from a local custom.
The State had to establish that Stinebaugh violated a binding law.
{¶48} We turn now to examining the State’s second assertion that only city
council could consent to the expenditure at issue. We begin this analysis by looking
at what authority the municipal ordinances gave to the safety service director.
Wapakoneta Cod. Ord. 208.03 contains the following provision:
The Director of Public Service and Safety is hereby authorized to
execute public contracts for the purchase of supplies, materials or
labor as provided in Ohio R.C. 735.05.
The version of R.C. 735.0516 that was in effect at the time of the alleged offenses
reads, in its relevant part, as follows:
The director of public service may make any contract, purchase
supplies or material, or provide labor for any work under the
supervision of the department of public service involving not more
than fifty thousand dollars. When an expenditure within the
department, other than the compensation of persons employed in the
department, exceeds fifty thousand dollars, the expenditure shall first
be authorized and directed by ordinance of the city legislative
authority. * * *
16
This language is from a provision that was passed in Am. Sub. H.B. 509 and was effective on September
28, 2012. Further, Am. Sub. H.B. 33 amended this provision and took effect on October 3, 2023.
Case No. 2-22-27
(Emphasis added.) These provisions specifically authorized the safety service
director to expend a certain amount of money “for any work under the supervision
of the department of public service.” R.C. 735.05.
{¶49} In turn, Wapakoneta Cod. Ord. 242.03(a)(1)-(2) describes the
responsibilities under the supervision of the safety service director as follows:
(a) Public Service Duties.
(1) The Director of Public Service and Safety shall manage and
supervise public works and undertakings of the City, except as
otherwise provided by law.
(2) The Director shall supervise the improvement and repair of streets,
avenues, alleys, lands, lanes, squares, wharves, docks, landings,
market houses, bridges, viaducts, aqueducts, sidewalks, playgrounds,
sewers, drains, ditches, culverts, ship channels, streams and
watercourses, the lighting, sprinkling and cleaning of public places
and the construction of public improvements and public works, except
as otherwise provided by law.
See also [CITATION]. As previously noted, Wapakoneta Cod. Ord. 1248.07(a) does
not expressly require the subdivider to cover the costs of extending a public sewer
line and does not forbid the city from bearing the costs of extending an existing
public sewer line.
{¶50} Rather, the wording of Wapakoneta Cod. Ord. 1248.07(a) leaves a
degree of latitude in the arrangements that can be made between the city and the
subdivider regarding the extension of existing public sewer lines. In the language
used, the legislative body does not evince an intention to criminalize or prohibit an
arrangement in which the city covers the costs of extending a public sewer line while
Case No. 2-22-27
the subdivider provides for the sanitary sewer system within the boundaries of the
subdivision.[CITATION] Since such an arrangement is not prohibited, Wapakoneta Cod. Ord.
208.03 and R.C. 735.05 gives the safety service director the authority to approve an
expenditure of up to $50,000.00 “for any work under the supervision of the
department of public service.” R.C. 735.05.
[SEGMENT 6]
{¶51} Turning to the facts of the case before us, the contract between the city
and Schaub Excavating was just over $13,000.00. Tr. 540. The evidence at trial
clearly establishes that the safety service director signed and approved the purchase
order for this extension project. Ex. 25. Further, the safety service director
apparently exercised the authority given to him under Wapakoneta Cod. Ord. 208.03
because the project he approved extended the public sewer line far beyond what was
necessary to service the house that Stinebaugh had built. The public sewer line
extension had roughly fourteen taps that were put in place to accommodate future
builders who might construct houses on the other vacant lots along this unimproved
right-of-way. Tr. 562-563, 576.
{¶52} The municipal ordinances do not suggest that the safety service
director needed the consent of the city council to approve the extension of the public
sewer line and the installation of these additional taps. Those who approved the
[CITATION]
Case No. 2-22-27
extension of the public sewer line beyond Stinebaugh’s house were not alleged to
have committed a theft offense because they authorized this expenditure without a
subdivider or developer paying for this portion of the public sewer line.18 Rather,
Wapakoneta Cod. Ord. 208.03 and R.C. 735.05 indicate that the safety service
director had the authority to install these additional taps and extend the sewer line
beyond what was necessary to simply service the house that Stinebaugh had built.
{¶53} In arguing that only city council could consent to the expenditure of
funds for a public sewer line extension project, the State does not address the
authority conferred on the safety service director by Wapakoneta Cod. Ord. 208.03
or R.C. 735.05 in its brief. Rather, the State simply points out that Scott was
terminated as safety service director several months after he told Stinebaugh that he
did not believe it was proper for the city to undertake the extension project. Tr. 342.
{¶54} Ruck testified that her boss, the new safety service director, instructed
her to move forward with the extension project. Tr. 538, 553. She then testified
that, while she did not agree with this decision, she acquiesced because the mayor
“could fire you if he wants to.” Tr. 538. Based on this testimony, the State asserts
that “there was no consent given” and that this situation is like “a robber claiming
the victim consented to giving him money without mentioning he was holding a
gun.” Appellant’s Brief, 10.
18
We note that Ruck testified that the city never attempted to bill Stinebaugh for this expenditure. Tr. 575.
Case No. 2-22-27
{¶55} As an initial matter, we note that, while Ruck signed and submitted
the purchase order to the safety service director, the testimony at trial does not
establish that she was the person ultimately authorized to give consent to this
expenditure within the meaning of R.C. 2913.02(A)(1). Tr. 341, 506, 538-541, 566-
567. Since the State did not call the new safety service director to testify, the
evidence produced at trial does not contain testimony about the factors that
influenced the decision-making process of the person who was authorized to consent
to the expenditure of these funds.[CITATION]
{¶56} We also note that the State’s line of argument suggests that pursuing
a prosecution pursuant to R.C. 2913.02(A)(4) or R.C. 2913.02(A)(5) may have been
more appropriate than pursuing one under R.C. 2913.02(A)(1). The provision
defining theft reads as follows:
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the
property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
(2) Beyond the scope of the express or implied consent of the owner
or person authorized to give consent;
(3) By deception;
19
Stinebaugh contends that the city auditor’s signature on the purchase order with Schaub Excavating
constituted approval of the sewer line extension project by a disinterested elected city official. However,
there is nothing in the record indicating the city auditor had independent authority to approve or disapprove
city projects. On the contrary, the city auditor’s signature on the purchase order merely indicated there were
funds available to pay the contract price. This is evidenced by the notation juxtaposed to the city auditor’s
signature on the purchase order. Ex. 25.
Case No. 2-22-27
(4) By threat;
(5) By intimidation;
(Emphasis added). R.C. 2913.02(A). The five subsections are “mutually exclusive”
and are to be “read in the disjunctive.”20 29B Ohio Jur.3d, Criminal Law, § 781
(2024), quoting [CITATION], at the
syllabus. Further, a “threat” has been defined as
[a] communicated intent to inflict harm or loss on another * * *,
[especially] one that might diminish a person’s freedom to act
voluntarily or with lawful consent; a declaration, express or implied,
of an intent to inflict loss or pain on another[.]
[CITATION], quoting Black’s Law Dictionary
(11th Ed. 2019). See also Ohio Jury Instructions, CR § 513.02 (Rev. Jan. 9, 2016).
Similarly, “intimidation” has been defined as the “act of frightening, scaring, or
bullying.” Id.
{¶57} But in this case, the State sought to produce evidence that was directed
at establishing a violation of R.C. 2913.02(A)(1) and ultimately failed to establish
that this expenditure was not approved by a person authorized to give consent. If
the State had built a case that was aimed at establishing a violation of R.C.
2913.02(A)(4) or R.C. 2913.02(A)(5), a different result may have been obtained.
20
This does not mean that the State was limited to pursuing a conviction under only one of the subsections
in R.C. 2913.02(A). The jury could have been presented with instructions on multiple subsections. [CITATION]
, at ¶ 34. But in this case, the jury was only instructed on R.C. 2913.02(A)(1). Tr. 1066. [CITATION]
, at ¶ 23 [CITATION], at *2.
Case No. 2-22-27
[CITATION] Since we do not have that
case before us, we do not decide that question. [CITATION]
{¶58} In short, Wapakoneta Cod. Ord. 1248.07(a) does not prohibit an
arrangement in which the city—rather than the subdivider—bears the cost of
extending a public sewer line to a subdivision while Wapakoneta Cod. Ord. 208.03
authorizes the safety service director to consent to expenditures of up to $50,000.00
“for any work under the supervision of the department of public service.” R.C.
735.05. Given these provisions, the State has failed to establish its second assertion
that “only city council had the authority to consent” to the expenditure of funds for
the extension of the public sewer line. Appellant’s Brief, 9.
{¶59} We turn to the State’s third assertion that Stinebaugh committed theft
in violation of R.C. 2913.02(A)(1) by failing to obtain the consent that only city
council could provide to an expenditure that conflicted with the requirements of an
ordinance. However, in examining the State’s first assertion, we concluded that
Wapakoneta Cod. Ord. 1248.07(a) did not require a subdivider to bear the costs of
extending the public sewer line. Thus, the State did not establish that this
expenditure was made in contravention of an ordinance
{¶60} Further, in examining the State’s second assertion, we concluded that
Wapakoneta Cod. Ord. 208.03 authorized the safety service director to expend up
to $50,000.00 “for any work under the supervision of the department of public
service.” R.C. 735.05. Since the expenditure at issue was approved by the safety
Case No. 2-22-27
service director, this expenditure was approved by a person authorized to give
consent. For this reason, the State has failed to establish that this expenditure was
made “without the consent of the owner or person authorized to give consent[.]”
R.C. 2913.02(A)(1). Because the State failed to establish the first two assertions,
the third assertion—that Stinebaugh violated R.C. 2913.02(A)(1) by not obtaining
the consent of city council—must also fail.
{¶61} In conclusion, the jury trial proceeded under R.C. 2913.02(A)(1), and
[SEGMENT 7]
the State failed to prove that Stinebaugh violated that provision. Tr. 1066. [CITATION] Since the State failed to establish an
element of the predicate offense of theft in violation of R.C. 2913.02(A)(1),
Stinebaugh’s conviction for theft in public office in violation of R.C. 2921.41(A)(1)
is not supported by sufficient evidence. While his conviction for theft in public
office is reversed, he still remains convicted of having a conflict of interest in
violation of R.C. 102.03(D) for his actions with regard to the extension of the public
sewer line. The second assignment of error is sustained.
Third Assignment of Error
{¶62} Stinebaugh argues that defense counsel was ineffective for failing to
object to the admission of several local municipal ordinances at trial and for failing
to raise adequate arguments in support of the Crim.R. 29 motions.
Case No. 2-22-27
Legal Standard
{¶63} Ohio law presumes that the representation provided by a licensed
attorney is competent. [CITATION], ¶ 53 (3d Dist.). For this
reason, the burden of establishing an ineffective assistance of counsel claim rests on
the appellant. [CITATION], ¶ 39 (3d Dist.). The appellant
must establish (1) that trial counsel’s performance was deficient and (2) that such
performance prejudiced the Defense. [CITATION], ¶ 24 (3d
Dist.).
{¶64} To establish deficient performance, the appellant must demonstrate
that trial counsel’s representation was not objectively reasonable and made errors
of such seriousness that he or she was not functioning as the counsel guaranteed by
the Constitution. [CITATION], ¶ 16. Matters that fall within the
realm of debatable trial tactics and strategies are generally insufficient to establish
deficient performance. [CITATION], ¶ 55 (3d Dist.). To
establish prejudice, the appellant must demonstrate that, in the absence of counsel’s
error, a reasonable probability exists that the outcome of the proceeding would have
been different. [CITATION], ¶ 122 (3d Dist.).
Legal Analysis
{¶65} Stinebaugh raises two arguments to establish that he was deprived of
his right to the effective assistance of counsel. First, he argues that trial counsel
should have challenged the admission of several provisions from the Wapakoneta
Case No. 2-22-27
Codified Ordinances that addressed the extension of public sewer lines and the
installation of a sanitary sewer system in a subdivision. Stinebaugh asserts that
these provisions were irrelevant. As an initial matter, the decision not to object falls
within the realm of trial strategy and does not generally constitute deficient
performance. [CITATION]
{¶66} Further, the State introduced an abundance of testimony at trial that
described the customary responsibilities of subdividers regarding the extension of
existing public sewer lines. Tr. 339. But when properly construed, the text of
Wapakoneta Cod. Ord. 1248.07(a) does not make this customary practice
mandatory. Thus, the text of this ordinance provides one of Stinebaugh’s strongest
rebuttals to the testimony about the local practices in the City of Wapakoneta.
Accordingly, we conclude that the failure to object to the admission of these
ordinances should be classed as a matter of trial strategy. Given the abundant
testimony about the customary practices surrounding the extension of public sewer
lines, we also do not conclude that the absence of the written ordinances at trial
would have made a difference in the outcome of this proceeding.
{¶67} Stinebaugh also argues that the admission of this local ordinance
constituted plain error. However, “the prejudice standards for plain-error and
ineffective-assistance-of-counsel claims are the same[.]” [CITATION] Since Stinebaugh failed to establish the prejudice under
the standard for ineffective assistance of counsel claims, he cannot establish
Case No. 2-22-27
prejudice under the plain error standard. Accordingly, his arguments under the plain
error standard are without merit.
{¶68} Second, Stinebaugh argues that defense counsel was ineffective for
failing to raise better arguments in support of the Crim.R. 29 motions that were
made at trial. In this case, defense counsel made a Crim.R. 29 motion as to each of
the charges against Stinebaugh at the close of the State’s case-in-chief and then
renewed these motions for acquittal when the Defense rested. Tr. 656-657, 659,
988. When making these motions, defense counsel raised specific arguments for
some but not all of the eleven charges against Stinebaugh. Tr. 656-659.
{¶69} On appeal, Stinebaugh “directs us to no authority requiring counsel to
offer or explain his reasons for making a Crim.R. 29 motion for acquittal.” [CITATION], ¶ 27 (9th Dist.). The decision to “argue the merits [of a
Crim.R. 29 motion] broadly as opposed to making specific arguments relative to
each and every count [in the indictment] is a matter of sound trial strategy.” [CITATION], ¶ 80 (8th Dist.). Thus, the fact that appellate counsel would
have argued the Crim.R. 29 motion differently does not mean that trial counsel’s
performance was deficient. See also [CITATION], ¶ 18 (5th
Dist.); [CITATION], ¶ 20 (11th Dist.); [CITATION], ¶ 44 (12th Dist.).
{¶70} Further, the trial court denied the Crim.R. 29 motions that trial counsel
made as to all eleven charges against Stinebaugh. On appeal, Stinebaugh did not
Case No. 2-22-27
raise any argument establishing that this ruling would have been different had trial
counsel elaborated on his arguments for the Crim.R. 29 motion. Since he cannot
demonstrate prejudice, this second argument is without merit. In conclusion,
Stinebaugh has failed to carry the burden of establishing his ineffective assistance
of counsel claims. Accordingly, the third assignment of error is overruled.
Conclusion
{¶71} Having found no error prejudicial to the appellant in the particulars
assigned and argued in the third assignment of error, the judgment of the Auglaize
County Court of Common Pleas is affirmed in part. Having found error prejudicial
to the appellant in the particulars assigned and argued in the first and second
assignments of error, the judgment of the Auglaize County Court of Common Pleas
is reversed in part.
{¶72} While his three convictions for conflict of interest in violation of R.C.
102.03(D) are unaffected by this decision, we vacate Stinebaugh’s convictions for
having an unlawful interest in a public contract in violation of R.C. 2921.42(A)(1)
and theft in public office in violation of R.C. 2921.41(A)(1). This cause is remanded
to the trial court for further proceedings consistent with this opinion.
Judgment Affirmed in Part
Reversed in Part
And Cause Remanded
MILLER, J., concurs.
Case No. 2-22-27
WALDICK, J., concurs in part and dissents in part.
{¶73} I concur with the majority regarding its conclusions as to the first and
third assignments of error. However, I respectfully dissent from the majority’s
assessment of the second assignment of error. In sustaining the second assignment
of error, the majority’s holding is contradictory to the evidence presented at trial and
to the plain language of the ordinance at issue, which required Stinebaugh to fund
the extension of the sanitary sewer main that, once installed, provided sewer service
to the real property he owned and developed. I would analyze and resolve the
second assignment of error as follows.
Second Assignment of Error
Stinebaugh’s fifth-degree felony conviction under R.C.
2921.41(A)(1) is erroneous as a matter of law on insufficiency
grounds because the City of Wapakoneta has the authority to
install sewer lines in the public right-of-way and three
appropriate city officials – including the independently elected
city auditor – consented to the sewer line extension. Thus, no
predicate theft offense, which is necessarily distinct from having
an interest in the benefits of any sewer line, was proven.
{¶74} At issue in the second assignment of error is Stinebaugh’s conviction
and sentence on Count 17 of the indictment for Theft in Office in violation of R.C.
2921.41(A)(1). Stinebaugh asserts that the evidence presented as to Count 17 was
insufficient to support his conviction for Theft in Office, specifically as to the
predicate theft offense necessary to prove the crime at issue.
Case No. 2-22-27
{¶75} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. [CITATION]. Consequently, “[t]he relevant inquiry
is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we
neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both
[SEGMENT 8]
are functions reserved for the trier of fact.” [CITATION].
{¶76} R.C. 2921.41 defines the offense of Theft in Office, and provides in
relevant part:
(A) No public official or party official shall commit any theft offense,
as defined in division (K) of section 2913.01 of the Revised Code,
when * * * the following applies:
(1) The offender uses the offender’s office in aid of committing the
offense or permits or assents to its use in aid of committing the
offense[.]
{¶77} In this case, the predicate “theft offense” for the Theft in Office charge
was Theft in violation of R.C. 2913.02. R.C. 2913.02 defines the crime of theft, and
provides:
Case No. 2-22-27
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the
property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
(2) Beyond the scope of the express or implied consent of the owner
or person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
{¶78} At trial in this matter, the State of Ohio’s theory of the case as to Count
17 was that Stinebaugh had committed Theft in violation of R.C. 2913.02(A)(1). It
was upon that subsection of the theft statute that the jury was instructed and
therefore, ultimately, found Stinebaugh to be guilty. Accordingly, Stinebaugh’s
challenge to his Theft in Office conviction on a sufficiency-of-the-evidence basis
must be analyzed by reviewing the evidence in the record offered by the prosecution
to support its theory that Stinebaugh was guilty of Theft in violation of R.C.
2913.02(A)(1).
{¶79} In that respect, the evidence presented at trial was that in 2018,
Stinebaugh contracted to build a house for a third party on a lot owned by
Stinebaugh at 708 Fairview Drive in Wapakoneta. That lot was one of two
contiguous lots that Stinebaugh owned on Fairview Drive, after having previously
done a lot split of a single larger lot that he had purchased for development purposes.
Case No. 2-22-27
At some point during the construction process of the house at 708 Fairview,
Stinebaugh realized that there was no public sewer line in place to provide sewer
service to that property.
{¶80} Prosecution witness Chad Scott began serving as the City of
Wapakoneta’s Safety Service Director in January of 2016, when he was hired by
Stinebaugh in his new capacity as mayor. Scott held that position for two and a half
years. As Safety Service Director, Scott was responsible for overseeing the police
and fire departments, as well as the city’s engineering, water, and sewer
departments. In that position, Scott reported directly to the mayor.
{¶81} While working in that capacity, Scott became aware that Stinebaugh
was building a spec home on a property he owned on Fairview and that there was
no sewer available for the house to tie into. Stinebaugh approached Scott about the
sewer issue. In that conversation, Stinebaugh said he was going to have the city run
a sewer line to that property. In response, Scott told Stinebaugh that in the City of
Wapakoneta, the developer installs the sanitary sewer line and then the city takes it
over, as set forth in the codified ordinances of Wapakoneta, which provide that the
developer is responsible for the installation of water and sewer.
{¶82} Scott testified that Stinebaugh did not like that answer, and the two
had no further conversation about the matter. Just a few weeks after that
conversation about the sewer issue, Scott was told by Stinebaugh that he was
looking for someone to replace Scott as Safety Service Director. In early July of
Case No. 2-22-27
2018, which was approximately two months after the conversation about the sewer
issue, Stinebaugh texted Scott, who was on vacation at the time, and told him he
was fired. While Scott’s employment with Wapakoneta terminated at that time, he
learned a few months after his departure that a sewer line had been installed by the
city to serve Stinebaugh’s property.
{¶83} Scott testified that, in instances such as the one at issue here, if one
follows the Wapakoneta codified ordinances, there is a permitting process for
developers to provide the city with engineering plans and other such information
about what they plan to do when installing a sewer line. Scott also identified State’s
Exhibit 28 as a copy of Wapakoneta Codified Ordinance 1244.04, which addresses
platting procedure.
{¶84} Section 1244.04 provides, in relevant part:
(a) Together with the final plat, the subdivider shall submit to the
Planning Commission two copies of the complete set of construction
drawings for public improvements as provided in Chapter 1248.
These construction drawings shall include a cover sheet, street and
utility improvement plans and grading and drainage plans for the
subdivision. In addition, the subdivider shall be required to submit
storm drainage calculations and a drainage area map showing
individual and cumulative drainage areas tributary to each point of
concentration.
(b) Following the City’s formal approval of the final plat and
accompanying detailed construction drawings as approved by the
Director of Public Service and Safety, the developer shall be required
to submit one reproducible copy of such construction drawings. Once
the developer has constructed the required water and sanitary sewer
facilities, he or she shall be required to submit to the City a set of
Case No. 2-22-27
reproducible prints showing the as-built locations of the water, storm
and sanitary sewer facilities, easements and any unusual conditions.
Scott also identified State’s Exhibit 29, which was a copy of section 1248.07
of the Wapakoneta Codified Ordinances.
{¶85} Section 1248.07 provides in relevant part:
(a) Public Sanitary Sewers; Extensions. If a subdivision can be
reasonably served by the extension of an existing public sanitary
sewer, as determined by the Planning Commission, the subdivider or
developer shall provide a system of sanitary sewer mains and shall
provide lateral connections for each lot. Where a public sanitary
sewer is not reasonably accessible, the subdivider, the owner or the
developer may provide septic tanks for each lot, provided that the
septic tanks are installed in accordance with State and/or County
Board of Health requirements. Whenever main lines are installed,
sewer and water mains shall be extended to property lines of the
subdivision. Connections to public sanitary sewer lines shall be
subject to the approval of and according to the specifications of, the
Director of Public Service and Safety or the County Sanitary
Engineer, depending upon jurisdiction.
{¶86} Scott testified that both of those ordinances were parts of
Wapakoneta’s city code requiring a developer to construct and pay for a sewer main.
Scott also confirmed that, during his employment with the City of Wapakoneta, it
was the practice there that the developer of a property would pay for the sewer main
and Scott was aware of no time that a developer did not pay for a sewer main, other
than the incident involving Stinebaugh.
{¶87} State’s witness William “Whitey” Thomas served as the Supervisor of
the Street Department, after having been appointed to that position by Stinebaugh
in his capacity as mayor. Thomas testified that Stinebaugh approached him about
Case No. 2-22-27
the lack of a sewer line to the property on Fairview where Stinebaugh was building
a house. Stinebaugh had discovered that there was no sewer access unless he were
to run a line across the road and tie into the sewer utilized by the mobile home park
across the street.
{¶88} In that conversation, Thomas told Stinebaugh that running a sewer line
for his property across to the mobile home park should not be done because Thomas
believed the mobile home park had a private system and, also, to do so would be
inconvenient and expensive for Stinebaugh. In response, Stinebaugh then asked if
it was feasible to run a sewer line through a right of way owned by the city to the
rear of Stinebaugh’s property on Fairview. Thomas told Stinebaugh that the
engineering department would have to get involved, and then an excavating
company would perform the actual installation, both of which were subsequently
done after Stinebaugh told Thomas that “we need to get a sewer in there.” (Tr., 366).
{¶89} Thomas indicated that he worked to get the sewer extended to
Stinebaugh’s property because of Stinebaugh saying that is what needed to be done.
Ultimately, Stinebaugh then tied into that sewer line extension for the house he was
building for his private client. Thomas testified that had the city not paid to run the
several hundred feet of extension necessary to reach Stinebaugh’s property,
[SEGMENT 9]
Steinbaugh would have had to pay for the extension himself. When asked how such
sewer projects work, Thomas testified that, as a rule, “[a]nybody that would develop
Case No. 2-22-27
a property with a lot of houses, they could come in and put the sewer line in, the
water line in, pave it, and then we took over the utilities.” (Id.).
{¶90} Prosecution witness David Schlenker is a Wapakoneta native and
owner of Schlenker Developments, a business that focuses on residential lot
development, construction, and residential and commercial real estate management.
Schlenker was acquainted with Stinebaugh as a result of both of them living in the
same small town.
{¶91} At some point in 2018, Schlenker learned that Stinebaugh was
building a home on Fairview, as a result of that being mentioned to Schlenker by
Mike Schaub of Schaub Excavating, who was doing some work for Schlenker at the
time. One day, Schlenker dropped off some paperwork to Schaub near the location
of the property upon which Stinebaugh was building the house on Fairview, where
Schaub was working on an extension of a main sanitary sewer line. At that time,
Schaub mentioned that he was extending the sewer line at the city’s direction, and
that the city was paying for it. Schlenker found that to be unusual because, in his
29 years of experience in residential development in Wapakoneta, mainline sanitary
sewer extensions were always paid for by the developer.
{¶92} As a result, Schlenker asked Stinebaugh about the sewer project at a
later time, and Stinebaugh said the decision to extend the sewer line had been made
by Mary Ruck, who was the Superintendent of the City Engineering Department.
Following cross-examination, when defense counsel attempted to make a distinction
Case No. 2-22-27
between developers of larger subdivisions and a person building a single home,
Schlenker testified on redirect-examination that he was not aware of the city paying
for a sewer line to go into any residential property in Wapakoneta.
{¶93} Prosecution witness Dennis Faller served as the City Law Director for
Wapakoneta for over thirty-nine years, from June of 1980 until December 31, 2019.
Faller testified that he was not aware of the sewer line having been run to
Stinebaugh’s property until after Stinebaugh was indicted.
{¶94} On the witness stand, Faller was asked what the proper legal procedure
would be if a city ordinance required a developer to pay for a main sewer line but
the developer was hoping to get the city to cover the cost. Faller answered, “Well,
if there’s legislation, council is the legislative body, so if there is legislation that
dictates a result, then City Council would be the one that would ultimately say okay,
we’re not, – we’re gonna [sic] change this or we’re gonna [sic] make an exemption
for that situation.” (Tr., 481).
{¶95} Faller was also asked what the proper procedure would be if it was the
common practice for a developer or person building a house to pay for the main
sewer line going to the property and the builder wanted the city to pay for the line
instead. Faller answered, “Typically, most people, in my experience as being Law
Director, when those things would come up, most peoples’ first contact might be
with our Engineering Department. And then, you know, the Engineering
Department would look at the situation and if it was something that was outside
Case No. 2-22-27
what is the normal course of events, they wouldn’t be the arbiter on that. And then
if it would be presented to Council again, full council, once something’s presented
to them, my experience is if it’s something like that, they would generally then
assign it to a committee who would have a meeting and meet with the people,
discuss it, do some research and then make a recommendation in regard to that. Our
department heads, over the years, were very conscientious about, you know, what
their role was and what was expected of them in regard to following procedures in
normal courses of business.” (Tr. 482-483).
{¶96} Prosecution witness Mary Ruck worked in the City of Wapakoneta’s
Engineering Department for over thirty years before retiring in 2022. Prior to
Stinebaugh taking office as mayor, Ruck had been promoted to the position of
Superintendent of Engineering and Zoning, in which job she oversaw the entire
engineering department.
{¶97} Ruck testified that she became aware that Stinebaugh was developing
a property on Fairview after he submitted a building permit to her office for the
house he wished to build. As part of the permit process, Stinebaugh was instructed
by Ruck’s department to tap into the public sanitary sewer line that was on the other
side of Fairview from his property.
{¶98} Ruck testified that Stinebaugh did not want to tap into the Fairview
line and so he contacted Ruck’s office because he wanted them to look into running
another line on an unimproved right-of-way on South Street, to the rear of
======= Case No. 2-22-27
Stinebaugh’s property. Stinebaugh instructed the engineering department to survey
that area to determine if there was enough fall in the elevation for a new sewer line
to be put in.
{¶99} As a result, the survey work was done and, following a review and
some calculations, Ruck’s department determined that there was enough elevation
for a sewer to be run there. Ruck testified that, once that determination was made,
Stinebaugh directed the engineering department to put in the sewer.
{¶100} Ruck had reservations about doing so, as the property was a
development and sewer lines should be installed at the developer’s cost. Ruck
explained that if a developer wanted the city to bear the cost of running a sewer line,
then the engineering department would normally refer the developer to city council,
as Ruck does not have the authority to make such decisions.
{¶101} However, in Stinebaugh’s case, while she knew it was wrong to do
so, Ruck testified that she went along with what Stinebaugh told her to do because
he was the mayor. When asked to elaborate further on that, Ruck testified that she
voiced her opinion to her direct boss, the Safety Service Director, and told him that
they should not put in the sewer for Stinebaugh as to do so was against the city
ordinance and policy. She testified that, however, she was then told to do it because
Stinebaugh was the mayor and “he could fire you if he wants to.” (Tr., 538).
{¶102} Ruck testified that the engineering department then calculated the
materials and supplies needed for the job, and called Schaub Excavating to come in
Case No. 2-22-27
and do the sewer installation job. Ruck identified State’s Exhibit 24 as the October
5, 2018 purchase order for Schaub Excavating in the amount of $13,234.00 that she
wrote for the project, and that the Auditor, Wilbur Wells, and the new Safety Service
Director, Floyd Greg, subsequently signed.
{¶103} Ruck testified that while the cost would typically have been paid by
the developer, the city paid Schaub Excavating to install the sewer line to
Stinebaugh’s property. Ruck further testified that Stinebaugh, while a home builder,
was also a developer in the sense that he had been developing the lot he owned.
Ruck identified the building permit issued to Stinebaugh for the Fairview Drive
property, which reflected that the parcel originally purchased by Stinebaugh had
been split by him into more than one lot.
{¶104} After viewing the evidence summarized above in a light most
favorable to the State, any rational trier of fact could have found the essential
elements of the crime of Theft in Office proven beyond a reasonable doubt. In
particular, the evidence permitted the reasonable inference that while he was mayor,
Stinebaugh, with purpose to deprive the City of Wapakoneta of public funds for an
expense which Stinebaugh privately bore the responsibility to pay for, knowingly
obtained control over those funds without the consent of the Wapakoneta City
Council, which was the only entity authorized to give consent for the expenditure
of public funds for an extension of the main sewer line at issue.
Case No. 2-22-27
{¶105} While Stinebaugh argues on appeal, and the majority concurs, that
[CITATION] did not as a matter of law
require Stinebaugh to bear the cost of the main sewer line extension in this case, I
disagree.
{¶106} The plain language of that ordinance, set forth in its entirety supra,
makes it clear that a “subdivider or developer shall provide a system of sanitary
sewer mains”, as well as providing lateral connections for each lot, when a
subdivision is being developed. While Stinebaugh’s building project involved only
one original lot that had been split into two, Stinebaugh qualified as a “subdivider”
pursuant to [CITATION], which
defines “subdivider” as “[a]ny individual, firm, association, syndicate,
copartnership, corporation, trust or other legal entity commencing proceedings
[SEGMENT 10]
under these Regulations to effect a subdivision of land hereunder for himself or
herself or for another.” “Subdivision” is then defined by [CITATION]
of those ordinances as “[t]he division of any parcel of land shown as a unit or as
contiguous units on the last preceding tax roll, into two or more parcels, sites or lots,
any one of which is less than five acres, for the purposes, whether immediate or
future, of transfer of ownership * * * .”
{¶107} Accordingly, I would find that Stinebaugh’s challenge on appeal in
the second assignment of error is defeated by a plain reading of [CITATION],
particularly when the language of that ordinance is considered in conjunction with
Case No. 2-22-27
the overwhelming evidence presented at trial as to the City of Wapakoneta’s well-
established practices, procedures, and policies with regard to that ordinance.
{¶108} In sustaining the second assignment of error, the majority also relies
on section 208.03 of the Wapakoneta Codified Ordinances and R.C. 735.05. As the
majority opinion notes, section 208.03 provides that “[t]he Director of Public
Service and Safety is hereby authorized to execute public contracts for the purchase
of supplies, materials or labor as provided in Ohio R.C. 735.05.” The version of
R.C. 735.05 in effect at the time of Stinebaugh’s theft in office offense provided, in
relevant part:
The director of public service may make any contract, purchase
supplies, or material, or provide labor for any work under the
supervision of the department of public service involving not more
than fifty thousand dollars. When an expenditure within the
department, other than the compensation of persons employed in the
department, exceeds fifty thousand dollars, the expenditure shall first
be authorized and directed by ordinance of the city legislative
authority.
{¶109} The majority reads those two legislative enactments as having given
Wapakoneta’s Safety Service Director the discretion to expend, without the
approval of city council, the approximately $13,000.00 paid to Schaub Excavating
to install the extension of the main sewer line to the property being developed by
Stinebaugh.
{¶110} However, even assuming that the majority’s broad interpretation of
those legislative enactments is correct, the record contains no evidence tending to
Case No. 2-22-27
reflect that the safety service director, who did not testify at trial, invoked any
budgetary discretion he may have possessed pursuant to those legislative sections
with regard to the sewer line extension at issue here. The fact that Safety Service
Director Floyd Greg may have signed the purchase order prepared by Mary Ruck
reflects merely that Greg agreed to the City of Wapakoneta paying Schaub
Excavating for the sewer project as set forth in that document, not that Greg had
exercised some specific and discretionary fiscal authority.
{¶111} Finally, the majority suggests that Stinebaugh may have been guilty
of Theft in violation of R.C. 2913.02(A)(4) or R.C. 2913.02(A)(5) [i.e. theft by
threat or theft by intimidation], but that the prosecution’s theory at trial, being that
Stinebaugh committed a theft offense pursuant to R.C. 2913.02(A)(1), somehow
fails because the five subsections of the Theft statute are “‘mutually exclusive’” and
“to be ‘read in the disjunctive.’” (Maj. Opin. at 30, quoting 29B Ohio Jur.3d,
Criminal Law, § 781 (2024), quoting [CITATION]).
{¶112} While I agree with the majority that Stinebaugh may also have been
guilty of Theft in violation of R.C. 2913.02(A)(4) or R.C. 2913.02(A)(5), I do not
agree with the majority’s contention that the five subsections of R.C. 2913.02, the
statute defining Theft, are mutually exclusive. A review of [CITATION], the case
relied upon by the majority in support of that contention, reflects that it was ambiguous language in a former version of R.C.
Case No. 2-22-27
2913.02 upon which the court in [CITATION] based its holding that the then four
subsections of the Theft statute were to be read in a disjunctive, mutually exclusive
manner. Subsequent to the decision in [CITATION], R.C. 2913.02 was amended and that
ambiguity was corrected. My research reflects no persuasive authority supporting
the proposition that the subsections of the current version of R.C. 2913.02 are to be
read and applied in solely a mutually exclusive manner.
{¶113} In conclusion, for all the reasons set forth in this dissent, I am unable
to join the majority with respect to the second assignment of error. I would reject
Stinebaugh’s claim that the predicate theft offense underlying the Theft in Office
charge was not supported by sufficient evidence. The second assignment of error
should be overruled, and the judgment of conviction and sentence relating to Count
17 should be affirmed.
/hls
====== End of Document ======
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-23-12
PLAINTIFF-APPELLEE,
v.
ROSSTIN GUY BENDER, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2022-CR-0106
Judgment Affirmed
Date of Decision: May 6, 2024
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips for Appellee Case No. 14-23-12
ZIMMERMAN, J.
{¶1} Defendant-appellant, Rosstin G. Bender (“Bender”), appeals the March
22, 2023 judgment entry of sentence of the Union County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} This case stems from an April 29, 2022 altercation between Bender and
the victim, B.H., during which Bender stabbed B.H. with a knife nine times. On
April 29, 2022, B.H., along with his girlfriend, Faith Selover (“Faith”) and her
brother, Joel Selover (“Joel”), invited Dean Smith (“Smith”), Bender, and Star
Mentzer (“Mentzer”), Bender’s girlfriend, to the residence that the three shared to
“see and enjoy for a campfire” the landscape lighting that they installed in their
backyard. (Feb. 6, 2023 Tr., Vol. II, at 33). During the gathering, “the lights kept
getting kicked over and kicked down, stepped on[, so B.H.] asked several times to
please watch the lights.” (Id. at 37). According to B.H., when he and Bender were
“bickering back and forth about the lights,” Bender discharged a firearm into the
ground. (Id. at 38). Joel testified that he believed that Bender “discharged the gun
into the ground * * * to diffuse the situation.” (Id. at 83).
{¶3} Later, when B.H. returned outside “after using the bathroom[, he saw]
that the lights were kicked over again.” (Id. at 40). Because Mentzer giggled after
B.H. inquired about “who kicked over the lights,” B.H. asked Bender and Mentzer
to “leave” “if they think it’s funny * * * .” (Id.). Instead of leaving, Bender “asked
Case No. 14-23-12
if [B.H.] wanted to fight him” and B.H. agreed. (Id.). According to B.H., Bender
then traversed 15-to-20 feet to reach him. However, before Bender could get to
B.H., Faith “tried to come in the middle between [them] to put her arms out and
separate the distance.” (Id. at 47). Nevertheless, Bender “swung past her” and “hit
[B.H.] first.” (Id. at 48). “[T]he last thing [B.H. could] remember is holding Mr.
Bender on top of [him] and [Faith] pulling Bender off of [him] and [Joel] pulling
[B.H.] back off the ground.” (Id. at 49). B.H. did not know that he had been stabbed
until he tried to stand.
{¶4} On May 6, 2022, the Union County Grand Jury indicted Bender on
Counts One and Two of felonious assault in violation of R.C. 2903.11(A)(1),
(D)(1)(a), second-degree felonies, and Count Three of using weapons while
intoxicated in violation of R.C. 2923.15(A), (B), a first-degree misdemeanor. On
May 10, 2022, Bender appeared for arraignment and pleaded not guilty to the counts
alleged in the indictment.
{¶5} On October 4, 2022, Bender filed a notice of self-defense under Crim.R.
[SEGMENT 11]
12.2 stating that he intended
to present evidence that on April 22, 2022 [sic], the alleged victim *
* * punched [Bender] in the face without justification and used his
forearm to compress [Bender’s] throat while on the ground to the
point he could not breathe; and that [Bender] had reasonable grounds
to believe, and honestly believed, he was imminent or immediate
danger of death or great bodily harm, at the time he defended himself
with a knife.
Case No. 14-23-12
(Doc. No. 44). On October 7, 2022, the State filed a memorandum in opposition to
Bender’s notice of self-defense. That same day, the State filed a motion in limine
requesting that the trial court prevent Bender “from introducing specific instance
[sic] of conduct by the victim in this matter unless and until [Bender] establishes
those instances of conduct are relevant and otherwise admissible to his claim of self-
defense.” (Doc. No. 48).
{¶6} On January 31, 2023, the State filed another motion in limine requesting
that the trial court prevent Bender “from introducing specific instances of conduct
to prove the victim was the initial aggressor in support of his claim of self-defense.”
(Doc. No. 78). On February 6, 2023, Bender filed a memorandum in opposition to
the State’s motion in limine. That same day, Bender requested that the trial court
instruct the jury on self-defense and the inferior-degree offense of aggravated
assault.
{¶7} The case proceeded to a jury trial on February 6-8, 2023. On February
8, 2023, the jury found Bender guilty of the counts alleged in the indictment.
{¶8} On March 22, 2023, the trial court sentenced Bender to a minimum term
of five years in prison to a maximum term of seven and one-half years in prison on
Count One and 180 days in jail on Count Three. (Doc. No. 91). The trial court
ordered that Bender serve the terms concurrently. Further, the trial court merged
Counts One and Two for purposes of sentencing.
Case No. 14-23-12
{¶9} Bender filed his notice of appeal on April 20, 2023. He raises seven
assignments of error for our review. For ease of our discussion, we will begin by
discussing Bender’s first and sixth assignments of error together; followed by his
second assignment of error; then together his third, fourth, and fifth assignments of
error; and finally his seventh assignment of error.
First Assignment of Error
The Jury Lost Its Way When Reviewing The Evidence Presented
For Guilt Contrasted With The Evidence Of Self-Defense,
Resulting In A Verdict That Is Against The Manifest Weight Of
The Evidence.
Sixth Assignment of Error
The Trial Court Erred When It Overruled Appellant’s Motion
For A Criminal Rule 29 Acquital [sic].
{¶10} In his first and sixth assignments of error, Bender argues that his
felonious-assault convictions are based on insufficient evidence and are against the
manifest weight of the evidence. On appeal, Bender does not dispute that the State
proved the elements of felonious assault. Rather, Bender contends that his
felonious-assault convictions are based on insufficient evidence and are against the
manifest weight of the evidence because he “presented evidence by a preponderance
of the evidence that he acted in self-defense, and the State failed to prove beyond a
reasonable doubt that it was not self-defense * * * .” (Appellant’s Brief at 11).
Case No. 14-23-12
Standard of Review
{¶11} Under Crim.R. 29(A), a court “shall order the entry of the judgment
of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a
conviction of such offense or offenses.” Consequently, “[a] motion for acquittal
under Crim.R. 29(A) is governed by the same standard as the one for determining
whether a verdict is supported by sufficient evidence.” [CITATION]
{¶12} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” [CITATION] Accordingly,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” [CITATION]
See also [CITATION]
Case No. 14-23-12
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”).
{¶13} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” [CITATION] at 387,
quoting [CITATION]. A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. [CITATION]. When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” [CITATION], quoting [CITATION].
Sufficiency of the Evidence
{¶14} As an initial matter, even though Bender challenges the sufficiency
and the weight of the evidence supporting the jury’s finding of guilt as to the
felonious-assault charge under Count Two of the indictment, we need not address
that argument. Accord [CITATION].
Case No. 14-23-12
4123, ¶ 11. “Specifically, ‘[w]hen counts in an indictment are allied offenses, and
there is sufficient evidence to support the offense on which the state elects to have
the defendant sentenced, the appellate court need not consider the sufficiency [or
weight] of the evidence on the count that is subject to merger because any error
would be harmless’ beyond a reasonable doubt.” Id., quoting [CITATION].
{¶15} In this case, error, if any, with respect to the sufficiency or weight of
the evidence as to the jury’s finding of guilt as to Bender’s felonious-assault charge
under Count Two is harmless beyond a reasonable doubt because it was merged
with Count One. Accord id. at ¶ 12; [CITATION] at ¶ 13. In other words, Bender was not
convicted of the felonious-assault offense alleged under Count Two because the trial
court merged that offense for purposes of sentencing. Accord [CITATION] at ¶ 12.
Indeed, the Supreme Court of Ohio has explicitly stated that a “conviction” requires
both a finding of guilt and a sentence. [CITATION] at ¶ 16. For these reasons, we need
not address any arguments challenging the sufficiency or weight of the evidence
regarding the jury’s finding of guilt as to Bender’s felonious-assault charge under
Count Two. Accord [CITATION] at ¶ 12; [CITATION] at ¶ 13, 18.
{¶16} Therefore, we will begin by addressing Bender’s sufficiency-of-the-
evidence argument as it relates to his felonious-assault conviction under Count One.
On appeal, Bender argues that the trial court erred by denying his Crim.R. 29 motion
because the State failed to prove beyond a reasonable doubt that he did not act in
Case No. 14-23-12
self-defense. Decisively, Bender’s challenge to the sufficiency of the evidence as
to self-defense is inappropriate. Accord [CITATION], 3d Dist. Allen No. 1-13-
31, 2014-Ohio-1787, ¶ 10; [CITATION], 2022-Ohio-
4562, ¶ 27.
{¶17} Traditionally, “[s]elf-defense is an affirmative defense, and the
accused bears the burden of proving it by a preponderance of the evidence.” [CITATION]
at ¶ 11. “However, effective March 28, 2019, the General Assembly modified
Ohio’s self-defense statute, R.C. 2901.05, to place the burden on the state to prove
beyond a reasonable doubt that the accused did not act in self-defense.” [CITATION], 12th Dist. Fayette No. CA2021-10-022, 2022-Ohio-2331, ¶ 30. Currently,
“[e]vidence as to all elements of self-defense must be presented at trial in order for
[SEGMENT 12]
a defendant to be acquitted, but to overcome the claim, the state need only disprove
one element of the defense by proof beyond a reasonable doubt.” Id. at ¶ 31.
“Moreover, any presumption as to the use of force in self-defense ‘may be rebutted
by a preponderance of the evidence, provided that the prosecution’s burden of proof
remains proof beyond a reasonable doubt as described in’ R.C. 2901.05(B)(1).” Id.,
quoting R.C. 2901.05(B)(4).
{¶18} Nevertheless, “there is no due-process right to a presumption of an
affirmative defense such as self-defense.” [CITATION], 2022-
Ohio-4562, at ¶ 19. Thus, notwithstanding “the shift in the burden of proof by the
amendment to R.C. 2901.05, the absence of self-defense is not an essential element
Case No. 14-23-12
of any offense that the state carried the burden of proving at trial.” [CITATION] at ¶ 36.
See also [CITATION], 10th Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶
43 (concluding that “there is nothing in the current version of R.C. 2901.05(B)(1)
indicating that by shifting the burden of proof on the affirmative defense of self-
defense, the General Assembly intended to transform the absence of self-defense
into an essential element of a criminal offense”). Consequently, “[Bender’s] claim
of self-defense is not an aspect of a sufficiency of the evidence or Crim.R. 29
analysis, and the trial court did not err [by denying his] Crim.R. 29 motion [in light
of his] self-defense claim.” [CITATION] at ¶ 36. Therefore, we will address Bender’s
self-defense argument only in our analysis of the manifest weight of the evidence.
Id.
Manifest Weight of the Evidence
{¶19} Bender was convicted of felonious assault in violation of R.C.
2903.11(A)(1). R.C. 2903.11 provides, in its relevant part, that “[n]o person shall
knowingly * * * [c]ause serious physical harm to another * * * .” R.C.
2903.11(A)(1). Bender does not dispute that the State proved the elements of that
offense. Rather, Bender argues that the jury lost its way in concluding that he did
not act in self-defense.
{¶20} Under Ohio’s current self-defense statute, “a defendant claiming self-
defense has the burden of production—that is, the burden of producing evidence
that ‘tends to support’ his use of force in defending himself.” [CITATION], 3d
Case No. 14-23-12
[CITATION]. Thus, “if evidence is presented ‘that tends to
support’ that the defendant used the force in self-defense, the prosecution must
prove beyond a reasonable doubt that the accused did not act in self-defense.”
(Emphasis sic.) [CITATION],
¶ 43. “Accordingly, ‘the burden of proof for * * * self-defense has shifted to the
state,’ but ‘the burden of production for * * * self-defense[ ] remains with the
defendant.’” (Emphasis sic.) [CITATION],
{¶21} “Self-defense is an affirmative defense that, if proved, relieves a
defendant of criminal liability for the force that the defendant used.” [CITATION] ¶
43. “The elements of self-defense differ depending on whether the defendant used
deadly or non-deadly force to defend himself.” [CITATION] ¶ 15.
Deadly force is “any force that carries a substantial risk that it will proximately
result in the death of any person.” R.C. 2901.01(A)(2). A “substantial risk” is “a
strong possibility, as contrasted with a remote or significant possibility, that a
certain result may occur or that certain circumstances may exist.” R.C.
2901.01(A)(8). In most situations, “stabbing a victim (or victims) with a knife
constitutes the use of deadly force.” [CITATION]
To establish self-defense through the use of deadly force, an accused
must prove: “(1) the accused was not at fault in creating the situation
giving rise to the affray; (2) the accused had a bona fide belief that he
Case No. 14-23-12
or she was in imminent danger of death or great bodily harm and that
the only means of escape from such danger was in the use of force;
and (3) the accused must not have violated any duty to retreat or to
avoid the danger.”
Bagley at ¶ 16, quoting [CITATION]. Generally, “a person is privileged only to ‘use as much force as is
reasonably necessary to repel [an] attack.’” [CITATION], quoting [CITATION].
{¶22} “[T]he State must ‘disprove at least one of the elements of self-defense
beyond a reasonable doubt.’” [CITATION], quoting [CITATION]. “‘The elements of self-defense are cumulative, and a
defendant’s claim of self-defense fails if any one of the elements is not present.’”
Id., quoting [CITATION].
{¶23} On appeal, Bender contends that the evidence that he presented at trial
that he acted in self-defense is weightier than the evidence presented by the State
that he did not. In support of this argument, Bender points to the inconsistencies of
B.H.’s, Joel’s, and Faith’s testimonies. Specifically, Bender contends that “the
State’s evidence regarding the logistics of the fight is contrary to [findings of the
emergency room doctor who B.H.], creating doubt on the credibility of its witnesses
Case No. 14-23-12
in their entirety.” (Appellant’s Brief at 5). That is, Bender contends that “the
placement of [B.H.’s] wounds is consistent with [B.H.] being on top of Mr. Bender
and Mr. Bender doing whatever he could to get [B.H.] off of him because he was
being choked.” (Id. at 11). Consequently, Bender argues that the weight of the
evidence supports that he acted in self-defense. In other words, Bender contends
that his version of the incident is more credible than B.H.’s, Joel’s, and Faith’s
version.
{¶24} “Although we review credibility when considering the manifest
weight of the evidence, the credibility of witnesses is primarily a determination for
the trier of fact.” [CITATION], ¶ 13, citing [CITATION], at paragraph one of the syllabus. “The trier
of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]
and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’” Id., quoting [CITATION], ¶ 24, citing [CITATION] (1984).
{¶25} Notwithstanding Bender’s contention that B.H.’s, Joel’s, and Faith’s
testimonies conflict with the medical evidence, “we are mindful of the jury’s
‘superior first-hand perspective in judging the demeanor and credibility of
witnesses.’” [CITATION], ¶ 33,
quoting [CITATION], ¶ 125.
Case No. 14-23-12
Critically, it is well within the province of the trier-of-fact to determine the
credibility of B.H.’s, Joel’s, Faith’s, and Bender’s testimonies, including the
prerogative to find Bender’s version of events not to be truthful. Accord [CITATION].
Indeed, the trier of
fact was free to believe or disbelieve B.H.’s, Joel’s, and Faith’s testimonies (or
Bender’s testimony) or accept part of what B.H., Joel, Faith, and Bender said and
reject the rest. Accord id.
{¶26} Even so, notwithstanding Bender’s contention that the weight of the
evidence suggests that he acted in self-defense because the medical evidence
supports his version of events, the balance of the State’s evidence weighs against
Bender’s self-defense claim. In other words, the weight of the evidence reflects that
Bender was at least partially at fault in creating the situation giving rise to the affray.
Indeed, the evidence reflects that Bender voluntarily entered into the fight with B.H.
by inviting B.H. to fight. The record further reflects that Bender exceeded the force
reasonably necessary for self-defense during the fight. See [CITATION].
{¶27} To begin with, Bender bore the initial burden of production under the
first element of a self-defense claim to demonstrate that he was not at fault for
Case No. 14-23-12
creating the violent situation. Accord [CITATION], ¶ 39. “[T]he first element of a self-defense claim provides
that the defendant must not be at fault in creating the situation that gave rise to the
affray.” [CITATION], ¶ 14. See also [CITATION], ¶ 82 (“‘Ohio courts have long recognized that a person cannot provoke [an] assault or
[SEGMENT 13]
voluntarily enter an encounter and then claim a right of self-defense.’”), quoting
[CITATION] “This concept is broader than simply not being the immediate aggressor.”
[CITATION] at ¶ 14. “A person may not provoke an assault or voluntarily enter an
encounter and then claim a right of self-defense.” Id. “Ohio courts have long
recognized that a defendant is at fault in creating the situation giving rise to the
affray when the defendant chooses to confront the victim or knowingly go to a place
where the victim will be, even when the defendant’s action was otherwise
completely lawful.” Id. at ¶ 15.
{¶28} In this case, the State presented the testimony of B.H. and Faith, who
testified that Bender was the initial aggressor and that he voluntarily entered into
the fight with B.H. by inviting B.H. to fight. Accord [CITATION], ¶ 118 (specifying that “[b]oth of the
state’s witnesses contradicted appellant’s version, testifying Barnett and appellant
willingly met up in the middle of the street and [the appellant] began to throw
Case No. 14-23-12
punches”). See also [CITATION] at ¶ 15 (“Even if [the victim] grabbed appellant by the
neck and pushed her against the house and, under appellant’s version, appellant did
not throw the first punch, the trial court did not err in finding that appellant was at
fault in creating the situation.”).
{¶29} At trial, B.H. testified that, after he asked Bender and Mentzer to leave,
Bender responded by asking him if he “wanted to fight him.” (Feb. 6, 2023 Tr.,
Vol. II, at 40). B.H. further testified that, after he agreed to fight Bender, Bender
traversed 15-to-20 feet to reach him, then “swung past” Faith (who was trying to
intercede) and struck B.H. first. (Id. at 48). Faith likewise testified that, after B.H.
asked Bender and Mentzer to leave, Bender “asked [B.H.] if he wanted to fight.”
(Id. at 127). According to Faith, Bender “punched [B.H.] in the face,” then B.H.
“punched him back.” (Id. at 130).
{¶30} Moreover, even though Bender denied that he threw the first punch,
Bender’s own testimony suggests that he was at least partially at fault for creating
the situation giving rise to the affray. Accord [CITATION] at ¶ 85; [CITATION],
11th Dist. Trumbull Nos. 2002-T-0115 and 2002-T-0116, 2003-Ohio-6762, ¶ 30-31
(concluding that the defendant could not claim self-defense because “his testimony
demonstrated that he was at least partially at fault for creating the situation giving
rise to the affray”). That is, Bender testified that he voluntarily entered the
encounter with B.H. See [CITATION], 2d Dist. Greene No. 2019-CA-19,
2020-Ohio-3681, ¶ 40.
Case No. 14-23-12
{¶31} Nevertheless, the weight of the evidence presented at trial reflects that
Bender did not have a bona fide belief that he was imminent danger of death or great
bodily harm and that this only means of escape from such danger was the use of
force a required by the second element of a self-defense claim. Under the second
element of self-defense, “[t]he person’s belief must be objectively reasonable under
the circumstances and he must subjectively believe he needed to resort to force to
defend himself.” [CITATION] Specifically, “‘[t]he objective part of the test requires consideration of “whether,
considering all of the defendant’s particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack,” a
reasonable person would believe that danger was imminent.’” [CITATION], quoting [CITATION] “The subjective part requires consideration of whether the defendant himself
actually believed that he was in imminent danger.” [CITATION]
{¶32} Importantly, under the second element of a self-defense claim “a
defendant must show that ‘that the degree of force used was “warranted” under the
circumstances and “proportionate” to the perceived threat.’” [CITATION] at ¶ 55, quoting
[CITATION] “‘If * * * the amount of force used is so disproportionate that
it shows an “unreasonable purpose to injure,” the defense of self-defense is
unavailable.’” [CITATION], quoting [CITATION]
Case No. 14-23-12
Ohio-87, ¶ 27, quoting [CITATION].
{¶33} In this case, the weight of the evidence presented at trial demonstrates
that Bender’s use of deadly force was not “reasonably necessary and proportionate
to the apparent danger.” [CITATION]. Critically, Bender “brought a knife to a fist fight and seriously
injured” B.H. [CITATION]. Specifically, the evidence reflects that Bender and B.H. “met with the intention
of engaging in a fist fight.” [CITATION]. Indeed,
there was no evidence presented that B.H. wielded a weapon during the altercation.
{¶34} Certainly, under the facts presented, it was within the province of the
jury to credit the testimonies offered by the State’s witnesses that Bender did not
have “reasonable grounds for believing there was an imminent threat of death or
serious bodily harm.” [CITATION]. Consequently, the evidence presented reflects
that Bender “used deadly force when he was not faced with deadly force” and that
“[t]he degree of force used by [Bender] was neither warranted under the
circumstances nor proportionate to the perceived threat.” [CITATION].
Case No. 14-23-12
{¶35} Therefore, based on our review of the record, we conclude that the
trier of fact did not lose its way by concluding that Bender did not act in self-defense.
“The jury heard all of the testimony, considered the evidence, and found the state’s
witnesses credible, and we will not disturb the jury’s verdict on appeal.” [CITATION]
at ¶ 37. Importantly, “[t]he jury did not lose its way simply because it believed the
prosecution testimony and disbelieved appellant’s account.” [CITATION] Accordingly,
weighing the evidence and all reasonable inferences, and considering the credibility
of witnesses, we conclude the jury did not clearly lose its way and create such a
manifest miscarriage of justice that Bender’s felonious-assault conviction must be
reversed and a new trial ordered. Thus, Bender’s felonious-assault conviction under
Count One is not against the manifest weight of the evidence.
{¶36} Bender’s first and sixth assignments of error are overruled.
Second Assignment of Error
The Trial Court Erred When It Failed To Grant A Mistrial First
After The Jury Was Tainted By Inaccurate Statements Made By
The Prosecutor Regarding Appellant’s Attempt To Invoke The
Fifth Amendment When He Was On The Stand And Second
When The Prosecutor Improperly Commented On Appellant’s
Pre-Arrest Silence.
{¶37} In his second assignment of error, Bender argues that the trial court
erred by failing to declare a mistrial based on prosecutorial misconduct.
Specifically, Bender argues that the prosecutor improperly “commented on * * *
Mr. Bender invoking his Fifth Amendment right not to incriminate himself, then
Case No. 14-23-12
minutes later commenting on Mr. Bender’s pre-arrest silence.” (Appellant’s Brief
at 12).
Standard of Review
{¶38} “‘A mistrial should not be ordered in a cause simply because some
error has intervened. The error must prejudicially affect the merits of the case and
the substantial rights of one or both of the parties.’” [CITATION], ¶ 18, quoting [CITATION]. “Notably, mistrials are appropriate
only when the ends of justice so require and a fair trial is no longer possible.” [CITATION], ¶ 61.
{¶39} “Because it rests within the sound discretion of the court, we review a
trial court’s grant or denial of a motion for a mistrial for an abuse of discretion.”
[CITATION], ¶ 44. An
abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. [CITATION].
Analysis
{¶40} In this case, Bender moved for a mistrial based on alleged improper
statements made by the prosecutor at trial. “When a defendant moves for a mistrial
based on prosecutorial misconduct, the trial court must determine whether ‘the
prosecutor’s actions were improper, and, if so, whether the defendant’s substantial
rights were actually prejudiced.’” [CITATION],
====== End of Instruction ====== Case No. 14-23-12
2023-Ohio-2863, ¶ 24, quoting [CITATION]. Thus, “‘[w]hen the grounds for a mistrial are based on prosecutorial misconduct, the defendant must show that the alleged misconduct deprived him of a fair trial.’” [CITATION], ¶ 40, quoting [CITATION]. “‘The defendant must show that, but for the prosecutor’s misconduct, the trier of fact would not have convicted him.’” Dukes at ¶ 24, quoting [CITATION]. “‘In making this determination, an appellate court should consider several factors: (1) the nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant.’” [CITATION], ¶ 46, quoting [CITATION].
[SEGMENT 14]
{¶41} Bender takes issue with the prosecutor’s statements regarding the invocation of his Fifth Amendment right against self-incrimination and his pre-arrest, pre-Miranda silence. “The Fifth Amendment to the Constitution of the United States provides that no person ‘shall be compelled in any criminal case to be a witness against himself.’” [CITATION], ¶ 8, quoting the Fifth Amendment to the U.S. Constitution. “This Amendment is made applicable to the states through the due process clause of the Fourteenth Amendment.” Id.
Case No. 14-23-12
{¶42} “‘The right to remain silent is conferred by the United States and the
Ohio Constitutions.”’ [CITATION], 2020-Ohio-426, at ¶ 50, quoting [CITATION], 5th
Dist. Stark No. 2002CA00014, 2003-Ohio-137, ¶ 78. “‘The privilege against self-
incrimination “is fulfilled only when the person is guaranteed the right ‘to remain
silent unless he chooses to speak in the unfettered exercise of his own will.’”’” Id.,
quoting [CITATION] at ¶ 78, quoting [CITATION], 384 U.S. 436, 460, 86 S.Ct.
1602 (1966), quoting [CITATION], 378 U.S. 1, 8, 84 S.Ct. 1489, (1964). “This
rule enforces one of the underlying policies of the Fifth Amendment, which is to
avoid having the jury assume that a defendant’s silence equates with guilt.” [CITATION]
at ¶ 10.
{¶43} Here, Bender contends that the prosecutor improperly asserted that
Bender “was not entitled to assert [his Fifth Amendment] privilege, in front of the
jury, stating ‘[Bender] waived [his] Fifth Amendment right’ * * * .” (Appellant’s
Brief at 12-13, quoting Feb. 7, 2023 Tr., Vol. II, at 194). The State disputes
Bender’s argument and asserts that the prosecutor’s statements were not improper
because Bender’s refusal to answer was not justified.
{¶44} “‘There is no absolute right to invoke the Fifth Amendment.’” [CITATION],
3d Dist. Seneca No. 13-13-27, 2014-Ohio-1134, ¶ 22, quoting [CITATION],
293 F.Supp.2d 854, 859 (C.D.Ill.2003). “The protections against self-incrimination ‘must be confined to instances where
the witness has reasonable cause to apprehend danger from a direct answer.’” [CITATION]
====== End of Part of a Court Ruling ====== Case No. 14-23-12
v. Arnold, [CITATION], quoting Hoffman v. United
States, [CITATION]. Consequently, “‘when a witness
asserts a privilege against self-incrimination, a court may not rely upon the witness’s
claim alone, but has a duty to determine whether the witness’s refusal to answer is
justified.’” State v. Barton, [CITATION], quoting State v. Spangler, [CITATION].
{¶45} Based on our review of the record, we conclude that Bender’s refusal
to answer was not justified. Specifically, at trial, Bender testified on direct
examination regarding his witness’s—Dean Smith—testimony that Bender
“coached” his testimony:
[Bender]: My side of the things * * * is that, when we come to
consult with * * * our lawyer * * * that we all talk
separately and we generally had an idea of what
happened that night. I’ve made statements in the past
that I am claiming self-defense but I’ve never persuaded
anybody or told anybody or coached anybody on what
to say here today.
[Trial Counsel]: So [Smith] did that on his own?
[Bender]: Correct.
[Trial Counsel]: Part of an effort to help you?
[Bender]: I would assume so.
[Trial Counsel]: Misguided effort, would you say?
[Bender]: Most definitely.
Case No. 14-23-12
(Feb. 7, 2023 Tr., Vol. II, at 179-180). On cross-examination, Bender invoked his
Fifth Amendment privilege against self-incrimination:
[The Prosecutor]: If I understand your testimony correctly, your friend just
came in here and lied. Is that right?
[Bender]: It would appear so, yes.
[The Prosecutor]: He had lied when he said you told him what to say.
Right?
[Bender]: I plead the fifth on that question.
(Id. at 193-194). Following consultation with his trial counsel, Bender answered
the prosecutor’s question:
[The Prosecutor]: And so, you told him what to say?
[Bender]: I did not.
[The Prosecutor]: You did not, so he lied about that?
[Bender]: Correct.
[The Prosecutor]: [W]ell, why did you plead the fifth then?
[Bender]: I was confused on the question and did not know how
to answer.
(Id. at 194-195).
{¶46} Based on our review of Bender’s testimony, we conclude that Bender
did not present a basis to invoke his Fifth Amendment privilege against self-
incrimination. See [CITATION]. “‘[W]hen a defendant chooses
to testify in a criminal case, the Fifth Amendment does not allow him to refuse to
Case No. 14-23-12
answer related questions on cross-examination.’” [CITATION] quoting [CITATION]’. Significantly, “‘[a] defendant “has no right to set forth to the jury all
the facts which tend in his favor without laying himself open to a cross-examination
upon those facts.”’” Id., quoting [CITATION] Therefore, because Bender’s refusal was
not justified, the prosecutor’s cross-examination of Bender was not improper.
{¶47} Bender further argues that the prosecutor improperly cross-examined
him regarding his pre-arrest, pre-Miranda silence. Specifically, Bender contends
that the prosecutor improperly “commented on [his] pre-arrest silence to attack the
self-defense [claim] by inferring that if he had nothing to hide, why didn’t he go to
the police, or check in on his friend on a regular basis.” (Appellant’s Brief at 13).
Here, Bender suggests that he was deprived of a fair trial because the prosecutor’s
cross-examination of him regarding his pre-arrest, pre-Miranda silence constituted
substantive evidence of his guilt. The State refutes Bender’s argument and contends
that the prosecutor’s cross-examination of Bender had “probative value for
impeachment, since Bender’s claim of self-defense and claiming to be the victim of
an attack would usually result in a report of his lawful use of force to the police
when it happened.” (Appellee’s Brief at 19).
{¶48} Generally, the “[u]se of a defendant’s pre-arrest silence as substantive
evidence of guilt violates the Fifth Amendment privilege against self-
Case No. 14-23-12
incrimination.” [CITATION], syllabus.
However, “[a] defendant’s pre-arrest, pre-Miranda silence may be introduced for
impeachment purposes.” [CITATION], at ¶ 55. Specifically, when “the
defendant has ‘cast aside his cloak of silence,’” the “use of pre-arrest silence as
impeachment evidence is permitted because it furthers the truth-seeking process.”
[CITATION] at ¶ 33, quoting [CITATION]
(1980). “Otherwise, a criminal defendant would be provided an opportunity to
perjure himself at trial, and the state would be powerless to correct the record.” Id.
Likewise, “the use of a defendant’s pre-arrest, pre-Miranda silence as substantive
evidence of guilt does not violate the Fifth Amendment privilege against self-
incrimination if the defendant fails to expressly invoke the privilege.” [CITATION],
¶ 17, citing [CITATION]
(2013).
{¶49} Importantly, “the Constitution does not prohibit references to a
defendant’s invocation of the right to remain silent as a ‘fair response’ to a
defendant’s claims.” [CITATION], ¶ 30, quoting [CITATION]
(1988). See also [CITATION], ¶ 16 (“‘The United States Supreme Court has held that the Fifth Amendment
does not prohibit references to a defendant’s invocation of the right against self-
incrimination when the references are made in “fair response” to the defense’s
Case No. 14-23-12
claims.’”), quoting [CITATION], quoting [CITATION]. “A fair response is warranted in such
circumstances because ‘“the protective shield of the Fifth amendment”’ should not
become ‘“a sword that cuts back on the area of legitimate comment by the
prosecutor on the weaknesses in the defense case.”’” [CITATION], quoting
[SEGMENT 15]
[CITATION], quoting [CITATION] (1983) (Stevens, J., concurring).
{¶50} The prosecutor’s cross-examination of Bender regarding his pre-
arrest, pre-Miranda silence was not improper. Critically, the State’s cross-
examination of Bender amounts to impeachment evidence, which did not violate
Bender’s right to remain silent. [CITATION]. That is, the prosecutor’s
cross-examination of Bender regarding his pre-arrest, pre-Miranda silence was a
fair response to Bender’s self-defense claim. [CITATION].
See also [CITATION].
{¶51} Therefore, since the prosecutor did not improperly address Bender’s
invocation of his Fifth Amendment privilege against self-incrimination or his pre-
arrest, pre-Miranda silence, Bender’s substantial rights were not prejudiced and he
Case No. 14-23-12
was not deprived of a fair trial. For these reasons, we conclude that the trial court
did not abuse its discretion by denying Bender’s motion for a mistrial.
{¶52} Bender’s second assignment of error is overruled.
Third Assignment of Error
The Trial Court Erred When It Failed To Give A Jury Instruction
On Aggravated Assault.
Fourth Assignment of Error
The Trial Court Erred When It Gave An Improper Instruction
On Self-Defense.
Fifth Assignment of Error
The Trial Court Erred When It Failed To Send Verdict Forms To
The Jury As To The Issue Of Self-Defense.
{¶53} In his third, fourth, and fifth assignments of error, Bender challenges
the trial court’s jury instructions and verdict forms. In particular, in his third
assignment of error, Bender argues that the trial court erred by failing to instruct the
jury on the inferior-degree offense of aggravated assault. Bender specifically argues
in his fourth assignment of error that the trial court erroneously instructed the jury
regarding self-defense. Finally, in his fifth assignment of error, Bender argues that
the trial court erred by providing the jury with improper verdict forms.
Standard of Review
{¶54} “A trial court’s decision to give a jury instruction is within its
discretion, and we will not reverse such a decision absent an abuse of that
Case No. 14-23-12
discretion.” [CITATION]
Again, an abuse of discretion implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. [CITATION]
Analysis
{¶55} “While a trial court has broad discretion to determine how it will
instruct a jury, the court has a duty to ‘fully and completely give the jury all
instructions which are relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.’” [CITATION] quoting [CITATION] “Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction.”
[CITATION]
Aggravated Assault Instruction
{¶56} In his third assignment of error, Bender contends that the trial court
erred by failing to instruct the jury on the inferior-degree offense of aggravated
assault. “[A] trial court may refuse to issue a requested jury instruction if ‘“the
evidence adduced at trial is legally insufficient” to support it.’” [CITATION] quoting [CITATION] quoting [CITATION] See also [CITATION] (“When a trial court is faced with the
Case No. 14-23-12
decision whether to give a requested instruction, the appropriate inquiry is whether
sufficient evidence has been presented to support the instruction.”). “[T]he trial
judge is in the best position to gauge the evidence before the jury and is provided
the discretion to determine whether the evidence adduced at trial was sufficient to
require an instruction.” [CITATION]
{¶57} “Aggravated assault is an offense of an inferior degree of felonious
assault.” [CITATION] “An instruction on aggravated assault is appropriate when the evidence supports a
conviction for felonious assault, but the assault resulted from serious provocation
by the victim.” [CITATION]
That is, “[i]n a trial for felonious assault, where the defendant presents sufficient
evidence of serious provocation, such that a jury could both reasonably acquit [the]
defendant of felonious assault and convict [the] defendant of aggravated assault, an
instruction on aggravated assault, as an inferior degree of felonious assault, must be
given.” (Emphasis sic.) [CITATION]
{¶58} “‘Provocation, to be serious, must be reasonably sufficient to bring on
extreme stress and the provocation must be reasonably sufficient to incite or arouse
the defendant into using deadly force.’” Id. at ¶ 26, quoting [CITATION]paragraph five of the syllabus. “‘In determining whether
the provocation was reasonably sufficient to incite the defendant into using deadly
Case No. 14-23-12
force, the court must consider the emotional and mental state of the defendant and
the conditions and circumstances that surrounded him at the time.’” Id., quoting
[CITATION] at paragraph five of the syllabus.
{¶59} “Ohio courts considering what constitutes sufficient ‘serious
provocation’ have found that past incidents or verbal threats are not sufficient;
words are not sufficient; and a victim’s simple pushing or punching the defendant
is not sufficient.” [CITATION], ¶ 53. Similarly, “[r]egarding the emotional state necessary to constitute
sudden passion or a sudden fit of rage, Ohio courts have found that confusion or
fear alone is not sufficient.” Id. at ¶ 54. Indeed, “where a defendant testifies that
he was merely afraid and no evidence exists that he actually acted under a sudden
fit of passion or rage, a court does not abuse its discretion by refusing to provide an
instruction on aggravated assault.” [CITATION] at ¶ 36.
{¶60} On appeal, Bender argues that he presented sufficient evidence that he
acted under serious provocation. In response, the State expostulates that
“[a]ggravated assault is generally incompatible with a theory of self-defense
because self-defense requires proof of fear while aggravated assault requires a
showing of a sudden passion or rage.” (Appellee’s Brief at 20). In the alternative,
the State asserts that Bender did not present any evidence that he “acted ‘in a sudden
fit of rage.’” (Id. at 21). Instead, the State proclaims that Bender “unequivocally
testified that he stabbed [B.H.] out of a fear for his safety.” (Id.).
Case No. 14-23-12
{¶61} “This Court has stated that a defendant who asserts self-defense “‘is
not entitled under Ohio law to instructions on self-defense and on lesser included
offenses [or inferior degree offenses], but must choose between the two.”’” [CITATION], quoting [CITATION], quoting [CITATION]. Our sister courts of
appeal have agreed that “[i]n most cases, an aggravated assault instruction is
incompatible with an instruction on self-defense, so that both cannot be given
together.” [CITATION]. See also [CITATION] (“Generally, an instruction on aggravated assault is incompatible with an instruction
on self-defense, such that both cannot be given together, because the legal theories
underpinning each offense are incompatible (aggravated assault—rage; self-
defense—fear).”).
{¶62} However, some courts have diverged and resolved that “‘[w]here there
is sufficient evidence on the issues of self-defense and aggravated assault, the court
must charge the jury on both, when so requested.’” [CITATION], quoting [CITATION]. See also
[CITATION]. “For instance, an aggravated assault instruction could be given in a self-
Case No. 14-23-12
defense case where a defendant exceeded the amount of force necessary for his
defense, out of passion or rage.” [CITATION] at ¶ 26.
{¶63} Nevertheless, we need not resolve such disaccord in this case because
Bender did not present sufficient evidence that he acted under “sudden passion or a
fit of rage” as contemplated by the aggravated-assault statute. Decisively, the theory
of Bender’s case was that he stabbed B.H. nine times out of fear. Indeed, Bender
testified that he found himself on the ground with B.H. “on top of [him] attacking
[him] at which point [B.H.] took the mid section of his forearm and placed it on
[Bender’s] throat and [he] could no longer breathe.” (Feb. 7, 2023 Tr., Vol. II, at
166). Bender testified that “[a]t that point in time, [he] didn’t know if he was going
to stop. [He] could not get him off of [him]. [He] could not get his body weight off
of [him], so [he] reacted accordingly until [he] felt the pressure come off [his] neck.”
(Id. at 172). That is, he testified that he “pulled out [his] knife and [he] stabbed him
in the back, in the lower buttocks and the thigh until he stopped and [Bender]
[SEGMENT 16]
deemed him no longer a threat.” (Id.).
{¶64} Critically, Bender testified that “[i]t was at that time that [he] could no
longer breathe that [he] feared that [his] life was in danger and [he] reacted
accordingly.” (Emphasis added.) (Id. at 166-167). Specifically, Bender testified
that he stabbed him “[t]o get him to stop” because he “felt that [his] life was in
danger” and he “wanted to neutralize the threat.” (Id. at 173). In sum, Bender
testified that “[t]he moment that [he] felt the pressure come off [his] neck and [he]
Case No. 14-23-12
could once again breathe is the * * * moment that [he] stopped stabbing him * * *
.” (Id. at 167).
{¶65} Based on the foregoing, we conclude that Bender presented evidence
that he acted out of fear and not out of sudden passion or a fit of rage. See [CITATION]. That is, Bender
did not present reasonably sufficient evidence that the circumstances incited him to
use deadly force to repel the attack. As a result, Bender did not present sufficient
evidence of serious provocation. Compare [CITATION], at ¶ 16-17.
Consequently, the trial court did not abuse its discretion by failing to instruct the
jury on the inferior-degree offense of aggravated assault.
Self-Defense Instruction
{¶66} In his fourth assignment of error, Bender argues that the trial court
erred by instructing the jury that he had a duty to retreat in contravention of Ohio’s
“stand your ground” law under R.C. 2901.09. “The amended ‘stand your ground’
law in Ohio now provides that ‘a person has no duty to retreat before using self-
defense * * * if that person is in a place in which the person lawfully has a right to
be.’” [CITATION], quoting R.C. 2901.09(B), and citing [CITATION]. The statute further provides that “[a] trier of fact
shall not consider the possibility of retreat as a factor in determining whether or not
a person who used force in self-defense * * * believed that the force was necessary
Case No. 14-23-12
to prevent injury, loss, or risk to life or safety.” R.C. 2901.09(C). “‘Simply put, the
new “stand your ground’ law removes, in most cases, the duty to retreat before using
self-defense.’” [CITATION] at ¶ 46, quoting [CITATION], ¶ 15. But see [CITATION], ¶ 31 (cautioning that “R.C. 2901.09(C) is not an
absolute prohibition on introducing evidence involving the possibility of retreat.
Rather, the statute only prohibits fact finders from considering evidence involving
the possibility of retreat to determine whether the defendant’s belief that force was
necessary was reasonable. Fact finders may, however, consider retreat evidence to
determine who was at fault in creating the situation leading to the affray”).
{¶67} In this case, the trial court instructed the jury, in relevant part, that
[i]n determining whether the Defendant, in using force in self-defense
reasonably believed that the force was necessary to prevent injury,
loss, or risk to life or safety, you may not consider the possibility of
retreat by the Defendant. The Defendant had no duty to retreat before
using force in self-defense if the Defendant was in a place in which
he lawfully had a right to be.
(Feb. 8, 2023 Tr. at 70).
{¶68} “Whether the jury instructions correctly state the law is a question that
is reviewed de novo.” [CITATION], ¶ 135.
“De novo review is independent, without deference to the lower court’s decision.”
[CITATION], ¶ 27.
Case No. 14-23-12
{¶69} Based on our review of the trial court’s jury instruction, we conclude
that the trial court’s jury instruction is a correct statement of law. Compare [CITATION]
at ¶ 48 (concluding that the trial court’s self-defense jury instruction conformed with
Ohio’s “stand your ground” law). Indeed, the trial court’s jury instruction plainly
states the appropriate duty-to-retreat standard as codified in R.C. 2901.09.
Consequently, the trial court’s self-defense jury instruction is not unreasonable,
arbitrary, or unconscionable.
Verdict Forms
{¶70} In his fifth assignment of error, Bender argues that the trial court erred
by failing to give the jury a separate verdict form regarding his self-defense claim.
Specifically, Bender asserts that the trial court should have provided the jury with
verdict forms requiring the jury to assess whether the State met its burden of proving
that he did not act in self-defense.
{¶71} Importantly, Bender did not object to the verdict forms at trial.
Consequently, Bender has forfeited all but plain error on appeal. Accord [CITATION]
Under Crim.R. 52(B), “plain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” “We recognize plain error with the utmost
caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” [CITATION]
Case No. 14-23-12
legal rule, the error must have been an obvious defect in the proceeding, and the
error must have affected a substantial right.’” Id., quoting [CITATION], ¶ 34. “‘Under the plain error standard, the
appellant must demonstrate that the outcome of his trial would clearly have been
different but for the trial court’s errors.’” Id., quoting [CITATION] at ¶ 34.
{¶72} When reviewing a trial court’s jury instructions under the plain-error
standard, “‘an appellate court must review the [jury] instructions as a whole and the
entire record to determine whether a manifest miscarriage of justice has occurred as
a result of the error in the instructions.’” [CITATION], ¶ 38, quoting [CITATION], ¶ 137. “An improper or erroneous jury instruction does
not constitute plain error unless, but for the error, the outcome of the trial would
clearly have been different.” Id. Consequently, Bender is required to “demonstrate
that his convictions clearly would have been different had the trial court instructed
the jury on self-defense either before or after the elements of each offense and on
the requirement of unanimity.” Id.
{¶73} On appeal, Bender contends that the trial court erred by “not send[ing]
verdict forms back on the issue of self-defense, as the proper order is for the jury to
determine if the State met its burden beyond a reasonable doubt self-defense [sic]
and that must be a unanimous decision.” (Appellant’s Brief at 17). That is, Bender
argues that
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[t]he only way for [him] to know that each member of the jury
thoughtfully considered the issue of self-defense and whether the
State met its burden of beyond a reasonable doubt is for each member
of the jury to sign a verdict form that either the State did or did not
prove beyond a reasonable doubt that Mr. Bender did not act in self-
defense.
(Id.).
{¶74} We disagree with Bender’s proposition and join our sister appellate
districts in the conclusion that “[t]here is no requirement for a separate finding in
trials with claims of self-defense.” [CITATION]. Accord [CITATION]. See also [CITATION]. Therefore, the absence of a separate verdict form regarding
Bender’s self-defense claim was not error, let alone plain error. Accord Smith at ¶
48.
{¶75} For these reasons, Bender’s third, fourth, and fifth assignments of error
are overruled.
Seventh Assignment of Error
The Trial Court Erred When It Sentenced Appellant To An
Indefinite Sentence: Reagan Tokes.
{¶76} In his seventh assignment of error, Bender argues that his sentence,
imposed under Ohio’s current sentencing scheme (commonly known as the “Reagan
Tokes Law”), is unconstitutional.
Case No. 14-23-12
Standard of Review
{¶77} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” [CITATION],
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting [CITATION], paragraph three of the
syllabus.
Analysis
{¶78} In this case, Bender challenges the constitutionality of the Reagan
Tokes Law—namely, Bender alleges that the Reagan Tokes Law violates his
constitutional right to a trial by jury in addition to violating the separation-of-powers
doctrine and due-process clause of the Ohio and United States Constitutions.
[SEGMENT 17]
Imperatively, not only has this court rejected similar facial- and as-applied-
constitutional challenges to the Reagan Tokes Law, but the Supreme Court of Ohio
recently endorsed the constitutionality of the Reagan Tokes Law. Accord [CITATION], ¶ 41. We decline to diverge from such
formidable precedent. Accordingly, Bender’s sentence is not contrary to law.
{¶79} Bender’s seventh assignment of error is overruled.
Case No. 14-23-12
{¶80} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and MILLER, J., concur.
/hls
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-23-27
PLAINTIFF-APPELLEE,
v.
KAREN MORGAN, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 14-23-28
PLAINTIFF-APPELLEE,
v.
KAREN MORGAN, OPINION
DEFENDANT-APPELLANT.
Appeals from Union County Common Pleas Court
Trial Court Nos. 23-CR-0052 and 23-CR-0006
Judgments Affirmed
Date of Decision: February 20, 2024
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee Case No. 14-23-27 and 14-23-28
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Karen S. Morgan (“Morgan”) appeals the
judgments of the Union County Court of Common Pleas, alleging that the trial court
erred in the process of imposing a sentence in these cases and that she was denied
her right to the effective assistance of counsel. For the reasons set forth below, the
judgments of the trial court are affirmed.
Facts and Procedural History
{¶2} Morgan appeals two cases. In Case No. 23-CR-06, Morgan was
indicted on one count of criminal trespass in violation of [CITATION], a
fourth-degree misdemeanor; one count of burglary in violation of [CITATION],
a first-degree felony; and one count of petty theft in violation of
[CITATION], a first-degree misdemeanor. On May 12, 2023, Morgan pled
guilty to the three charges against her. The trial court then imposed an aggregate,
indefinite prison term of two to three years.
{¶3} In Case No. 23-CR-52, Morgan was indicted on one count of trafficking
in cocaine in violation of [CITATION], a first-degree felony, and one count
of trafficking in cocaine in violation of [CITATION], a fourth-degree felony.
On May 18, 2023, Morgan pled guilty to both of the charges against her. The trial
court imposed an aggregate, indefinite prison term of six to nine years to be served
consecutively to the sentence imposed in Case No. 23-CR-06.
Case No. 14-23-27 and 14-23-28
{¶4} Morgan filed her notices of appeal on July 13, 2023 and July 19, 2023.
On appeal, she raises the following two assignments of error:
First Assignment of Error
The trial court erred when it imposed a greater than minimum
sentence in the trafficking in cocaine case after finding the factors
in support of a minimum sentence in the burglary case, then
ordering the trafficking sentence to be served consecutive to the
sentence in the burglary case.
Second Assignment of Error
Appellant was deprived [of] effective assistance of counsel.
First Assignment of Error
{¶5} Morgan asserts that the trial court erred (1) by not imposing the
minimum prison term in Case No. 23-CR-52 and (2) by ordering her sentence in
Case No. 23-CR-52 to be served consecutively to her sentence in Case No. 23-CR-
06.
Standard of Review
{¶6} R.C. 2953.08(G)(2) establishes the scope of appellate review for felony
sentences. [CITATION], ¶ 64. Under R.C. 2953.08(G)(2), an appellate court may reverse or modify a sentence
only if there is clear and convincing evidence (1) that the trial court’s findings under
R.C. 2929.13(B), R.C. 2929.13(D), R.C. 2929.14(B)(2)(e), R.C. 2929.14(C)(4) or
R.C. 2929.20(I) are not supported by the record or (2) that the sentence is otherwise
contrary to law. [CITATION]
Case No. 14-23-27 and 14-23-28
1231, ¶ 1. “Clear and convincing evidence is that measure or degree of proof * * *
which will produce in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.” [CITATION], ¶ 12, quoting [CITATION] (1954), paragraph three of the syllabus.
Legal Standard
{¶7} “Trial courts have full discretion to impose any sentence within the
statutory range.” [CITATION], ¶ 25, quoting [CITATION], ¶ 9. But in the process of fashioning a sentence, trial courts are still required to
consider the principles and purposes of felony sentencing in R.C. 2929.11 in
addition to the seriousness and recidivism factors listed in R.C. 2929.12. [CITATION], ¶ 11-12.
{¶8} However, R.C. 2953.08(G)(2) “does not provide a basis for an appellate
court to modify or vacate a sentence based on its view that the sentence is not
supported by the record under R.C. 2929.11 and 2929.12.” [CITATION], ¶ 39. Thus, “[a] sentence imposed
within the statutory range is not contrary to law as long as the trial court considered
the purposes and principles of felony sentencing contained in R.C. 2929.11 and the
sentencing factors contained in R.C. 2929.12.” [CITATION], ¶ 9 (3d Dist.).
Case No. 14-23-27 and 14-23-28
{¶9} Further, prison terms for multiple offenses are generally served
concurrently. [CITATION], ¶
32, citing R.C. 2929.41(A). However, the trial court may impose sentences
consecutively if it makes the findings that are set forth as follows in R.C.
2929.14(C)(4):
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4). Thus, pursuant to this provision,
the trial court must find (1) that consecutive sentences are necessary
to protect the public or punish the offender (‘the necessity finding’);
(2) that consecutive sentences are not disproportionate to the
Case No. 14-23-27 and 14-23-28
seriousness of the offense (‘the proportionality finding’); and (3) that
one of the three factors listed in R.C. 2929.14(C)(4)(a-c) is applicable.
[CITATION]. R.C.
2953.08(G)(2)(a) expressly authorizes an appellate court to reverse or modify a
sentence if the findings made under R.C. 2929.14(C)(4) are clearly and
convincingly unsupported by the record. [CITATION].
Legal Analysis
{¶10} In her first argument, Morgan asserts that the trial court should have
[SEGMENT 18]
imposed the minimum prison term in Case No. 23-CR-52. Specifically, she argues
that her criminal history supports the imposition of a shorter sentence for the drug
trafficking offenses she committed. Morgan also notes that the trial court imposed
the minimum prison sentence in Case No. 23-CR-06. However, the record
establishes that the trial court expressly considered R.C. 2929.11 and R.C. 2929.12
in the process of imposing a sentence in Case No. 23-CR-52. Further, the
challenged prison terms fall within the authorized range. Thus, these arguments do
not establish that the prison terms imposed in Case No. 23-CR-52 are clearly and
convincingly contrary to law.
{¶11} In her second argument, Morgan asserts that the prison terms from
these two cases should not have been imposed consecutively.1 During sentencing,
1
Many of Morgan’s arguments are based upon the Ohio Supreme Court’s decision in [CITATION]. However, after she had filed her brief, the Ohio Supreme
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-passmore', which should be replaced with `[CITATION]`. Case No. 14-23-27 and 14-23-28
the trial court expressly made the findings required by R.C. 2929.14(C)(4) and
incorporated these findings into its judgment entry. Further, the presentence
investigation indicates that Morgan has a criminal record that went back to 1993.
She also committed the offenses in Case No. 23-CR-52 in February of 2023. Thus,
these offenses occurred in the same month that she had been released on her own
recognizance in Case No. 23-CR-06. The State also noted that the drug offense was
committed in the presence of a child and involved a substantial amount of drugs.
Having reviewed the relevant materials, we do not conclude that the trial court’s
R.C. 2929.14(C)(4) findings are unsupported by the record. Thus, Morgan’s second
argument does not establish that her sentence is clearly and convincingly contrary
to law. Accordingly, the first assignment of error is overruled.
Second Assignment of Error
{¶12} Morgan asserts that her conviction for burglary should be reversed
because defense counsel’s representation was ineffective.
Legal Standard
{¶13} Ohio law presumes that a licensed attorney’s representation was
competent. [CITATION] “In order to prove an ineffective assistance of counsel claim, the appellant must carry
the burden of establishing (1) that his or her counsel’s performance was deficient
Court vacated this decision on reconsideration. See [CITATION] We will examine this assignment of error in light of the prevailing law.
```plaintext
Case No. 14-23-27 and 14-23-28
and (2) that this deficient performance prejudiced the defendant.” [CITATION],
quoting [CITATION].
{¶14} To establish deficient performance, the appellant must demonstrate
that trial “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” [CITATION], quoting [CITATION]. To
establish prejudice, “the defendant must show a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.” [CITATION].
Legal Analysis
{¶15} Case No. 23-CR-06 arose from a situation in which Morgan took
$566.00 worth of goods out of a Walmart without tendering payment. While
investigating this incident, law enforcement discovered that Morgan had previously
received a conviction for stealing from a Walmart in Marion County, Ohio. As the
result of this earlier case, she was ordered not to enter Walmart stores. This prior
order resulted in Morgan being charged with burglary for the incident that gave rise
to Case No. 23-CR-06.
{¶16} On appeal, Morgan argues that defense counsel’s performance was
deficient “because a certified copy of the [Marion County judgment] entry was
never entered into evidence to prove that the language in the entry was clear and
Case No. 14-23-27 and 14-23-28
unequivocal * * *.” (Appellant’s Brief, 11). Morgan asserts that she may have been
charged with an offense that was less serious than burglary if the wording of the
order was ambiguous or vague. In response, the State points out that the Defense
received a copy of the “Walmart Trespass Notice” during discovery. (Doc. 13).
{¶17} This Court has held that, “where proof outside the record is required
to support a claim of ineffective assistance of trial counsel, the claim is ‘purely
speculative and * * * “it is not appropriate for consideration on direct appeal.”’”
[CITATION], quoting [CITATION], quoting [CITATION]. This assignment
of error rests on the wording of a document that is not in the record. Her brief
reveals the speculative nature of her argument when she asserts that the outcome of
this proceeding may have been different “if the language [in the order] was vague
and not pointed.” (Emphasis added.) (Appellant’s Brief, 11).
{¶18} In conclusion, Morgan’s speculative argument cannot establish the
prejudice prong of the Strickland test. Thus, she has failed to carry the burden of
establishing an ineffective assistance of counsel claim in this appeal. Accordingly,
the second assignment of error is overruled.
Case No. 14-23-27 and 14-23-28
Conclusion
{¶19} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgments of the Union County Court of Common Pleas
are affirmed.
Judgments Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/hls
If you could provide a specific part of the court ruling text, I will be able to process it and replace the court ruling citations as per your instructions.
[CITATION]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO, CASE NO. 9-22-13
PLAINTIFF-APPELLEE,
v.
ZIAIR GREEN, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 21-CR-070
Judgment Affirmed
Date of Decision: December 4, 2023
APPEARANCES:
Timothy B. Hackett and Victoria A. Ferr for Appellant
Raymond A. Grogan, Jr. for Appellee Case No. 9-22-13
MILLER, P.J.
{¶1} Defendant-appellant, Ziair E. Green (“Green”), appeals the February
28, 2022 judgment entry of sentence of the Marion County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} On January 18, 2021, law enforcement officers responded to numerous
reports of gunfire shot at 126 South Seffner Avenue (“126 S. Seffner Ave.”),
Marion, Ohio. When officers arrived at the scene, they found Ricco McGhee
(“McGhee”) lying on the sidewalk with a gunshot wound to his chest. McGhee was
transported to the hospital where he was subsequently pronounced dead. An
autopsy confirmed that his death was the result of a single gunshot wound to the
chest.
{¶3} McGhee had been married to Green’s mother, Kimberly Floyd
(“Floyd”), for many years and was the only father figure in the household.
However, McGhee and Floyd were separated by October 2020. Nonetheless,
McGhee and Floyd continued to communicate off-and-on despite their separation
and McGhee’s recent engagement to Lashawn Mosley (“Mosley”).
{¶4} On January 18, 2021, McGhee spent the day in Columbus with Mosley.
Eventually the pair returned to Marion where they visited friends to watch a sporting
game, drink alcohol, and relax. Throughout the day and into the night, McGhee and
Floyd were in communication via text message. Later that night, McGhee drove his
vehicle, with Mosley as a passenger, to Floyd’s house at 126 S. Seffner Ave. When
Case No. 9-22-13
they arrived at the house at approximately 10:35 p.m., McGhee exited the driver’s-
side door and entered the unlocked house while Mosley waited in the vehicle. Inside
the house, McGhee and Floyd engaged in a confrontation.
{¶5} During the confrontation between McGhee and Floyd, Green exited
through the side door of the house with a firearm. Several minutes later, McGhee
emerged from the house and walked down the front porch steps onto the sidewalk.
There, he spotted Green, who was in possession of the firearm.
{¶6} Green subsequently fired two “warning shots” at McGhee and then
pointed the gun at McGhee and fired additional shots. McGhee was struck in the
chest by a bullet and fell to the ground. Green ran from the scene and went into
[SEGMENT 19]
hiding for several days. Mosley and Floyd rushed to McGhee and attempted to
render aid.
{¶7} On January 19, 2021, a complaint was filed in the Marion County Court
of Common Pleas, Family Division (“juvenile court”) charging 17-year-old Green
with one count of murder in violation of R.C. 2903.02(A) and one count of
aggravated murder in violation of R.C. 2903.01(A). That same day, the State filed
a motion to bind the case over to the Marion County Court of Common Pleas,
General Division, pursuant to Juv. R. 30. Green appeared for an initial appearance
on January 28, 2021, wherein he denied the allegations in the complaint.
{¶8} A probable cause hearing was held in the juvenile court on February 11,
2021. At the conclusion of the hearing, the judge found probable cause to believe
Case No. 9-22-13
that Green committed the offenses alleged in the complaint. Accordingly, the
juvenile court relinquished its jurisdiction over the matter and transferred the case
to the General Division of the Marion County Court of Common Pleas for
prosecution.
{¶9} On February 24, 2021, the Marion County Grand Jury indicted Green
on three counts: Count One of murder in violation of R.C. [CITATION], an
unclassified felony; Count Two of murder in violation of R.C. [CITATION], an
unclassified felony; and Count Three of felonious assault in violation of R.C.
[CITATION], a second-degree felony. Each of the counts also included a three-
year firearm specification pursuant to R.C. [CITATION] and R.C. [CITATION]. Green
appeared for arraignment on March 1, 2021 and entered pleas of not guilty to the
counts and specifications in the indictment. On March 17, 2021, Green retained
new counsel who entered notices of appearance. On March 23, 2021, Green filed a
notice of his intent to use self-defense or defense of others as a defense at trial.
{¶10} On April 19, 2021, Green filed a motion for funds to retain an expert
witness. The motion did not specify a dollar amount of the request. In a judgment
entry filed on April 20, 2021, the trial court deemed the motion filed outside the
time set by Crim.R. 12. Nonetheless, the trial court granted the defense $1,500 for
the purpose of retaining an expert and directed that further funds be authorized in
advance.
Case No. 9-22-13
{¶11} On April 20, 2021, Green filed a motion for leave to file several
pretrial motions instanter. Specifically, Green requested to file a motion to require
the State to disclose the victim’s criminal history and a motion to allow counsel to
review children’s services records. On April 22, 2021, the trial court denied the
motions. In its attendant judgment entry, the trial court found the motions were
untimely filed pursuant to Crim.R. 12. However, in the interest of justice, the trial
court reviewed the merits of the motions and denied them on that basis.
{¶12} On May 20, 2021, Green filed an additional motion for allowance of
monies to retain an expert witness. In his motion, Green requested an “initial
approval” of $9,000 for the proposed expert to examine Green. (Doc. No. 52). On
May 27, 2021, the trial court denied the motion. In its judgment entry, the trial court
found the motion was untimely and filed outside the timelines of Crim.R. 12 without
leave. Nevertheless, the trial court reviewed the merits of the motion and found that
Green failed to show how the expert would provide value and that alternative would
will provide Green with a defense in this case.
{¶13} On July 12, 2021, Green made a motion for the trial court to approve
a general evaluation of Green by District V Forensic Diagnostic Center for the
purposes of a referral to a specialist if necessary. The trial court granted Green’s
motion on July 14, 2021. On September 23, 2021, Green filed a motion for leave
to file a motion for allowance of monies to retain an expert witness for additional
evaluation of the defendant. On October 22, 2021, the trial court denied Green’s
Case No. 9-22-13
request to file the motion out of time and denied Green’s request for additional
defense experts at state expense.
{¶14} On January 21, 2022, the State filed a motion to exclude the testimony
of four defense witnesses (Deante Smith, Deandre Gale, Timothy Nelson, and
Dejaun Smith) listed in the defendant’s reciprocal discovery. Green filed a
memorandum in opposition to the State’s motion on January 26, 2022. The
following day, the trial court filed a judgment entry stating that it would give Green
the opportunity to proffer the testimony of the four witnesses outside the presence
of the jury for the trial court to determine whether their testimony would be
admissible.
{¶15} A jury trial commenced on February 1, 2022. On February 10, 2022,
the jury returned verdicts finding Green not guilty of Count One, but guilty of
Counts Two and Three, and their attendant specifications.
{¶16} At the sentencing hearing held on February 25, 2022, the trial court
found that Counts Two and Three merged for the purpose of sentencing. The State
elected to proceed to sentencing the more serious offense of murder charged in
Count Two and the trial court sentenced Green to a term of 15 years to life in prison
to be served consecutively to a term of 3 years for the attendant firearm specification
for an aggregate term of 18 years to life in prison.
{¶17} On March 25, 2022, Green filed his notice of appeal. He raises eight
assignments of error for our review.
Case No. 9-22-13
First Assignment of Error
The trial court violated Ziair Green’s constitutional right to
present a complete defense. Fifth, Sixth, and Fourteenth
Amendments, U.S. Constitution; Article I, Sections 1, 10, and 16,
Ohio Constitution; Crim.R. 16(B); Evid.R. 404(B), 405, 608,
616(A), 702.
{¶18} In his first assignment of error, Green argues that the trial court
violated his constitutional right to present a complete defense. Specifically, Green
claims the trial court prohibited him from presenting evidence that would have
undermined the credibility of the State’s witnesses and shown he acted in self-
defense. He also asserts that the trial court denied him the opportunity to present a
complete defense by denying his request for expert funds.
{¶19} The Supreme Court of Ohio has explained:
“[T]he Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’” [CITATION], quoting
[CITATION]. However, “[a] defendant’s right to present
relevant evidence is not unlimited, but rather is subject to reasonable
restriction.” [CITATION]. And states have a legitimate interest
in ensuring that triers of fact are presented with reliable evidence and
have “broad latitude under the Constitution to establish rules
excluding evidence from criminal trials” to further that goal. [CITATION]. Such “rules do not
abridge an accused’s right to present a defense so long as they are not
‘arbitrary’ or ‘disproportionate to the purposes they are designed to
serve’” and if they do not “infringe[] upon a weighty interest of the
accused.” [CITATION], quoting [CITATION]
Case No. 9-22-13
{¶20} Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of that
discretion and material prejudice. [CITATION], ¶ 62, citing [CITATION]. An abuse of discretion
implies that the trial court acted unreasonably arbitrarily, or unconscionably. [CITATION].
Children’s Services Records
{¶21} Green alleges he was denied the right to present a complete defense
due to the trial court’s denial of his motion to allow his counsel to review any
children’s services records relating to McGhee or Floyd. Specifically, Green argues
the trial court erred by denying his request to review children’s services records
without at least conducting an in-camera review of the records.
{¶22} On April 20, 2021, Green filed a motion for leave to file pretrial
motions instanter. Attached to that motion was a motion to allow counsel to review
records maintained by Marion County Children’s Services relating to McGhee or
Floyd. In a judgment entry filed on April 22, 2021, the trial court denied Green’s
motion for leave to file pretrial motions instanter. The trial court specified that
counsel was explicitly instructed not to file motions outside of Crim.R. 12(D)
without leave of the court and noted that Green provided no reasonable explanation
for the lateness of the motions. Nonetheless, the trial court addressed the merits of
[SEGMENT 20]
Green’s motion to review children’s services records and found that the records are
Case No. 9-22-13
not relevant to the instant case. The trial court specifically stated that it “will not
authorize a fishing expedition to defame or dehumanize the deceased [victim].”
(Doc. No. 30).
{¶23} A trial court has discretion to decide whether certain information is or
is not discoverable. See [CITATION], ¶ 13, citing [CITATION]. As
such, we will not disturb the trial court’s decision on that issue absent an abuse of
that discretion. Id.
{¶24} Crim.R. 16(B)(5) provides that a criminal defendant is entitled to
discovery of evidence which is “favorable to the defendant and material to either
guilt or punishment.” However, when the potential discovery involves children’s
services records, “this requirement comes into conflict with the confidentiality that
attaches to such records.” [CITATION], ¶ 85, citing [CITATION].
{¶25} The Supreme Court of the United States has held that “a defendant’s
due process right to a fair trial entitles him to an in camera inspection by the trial
court of confidential child services records to assess whether they contain evidence
that is material to the defendant’s guilt.” [CITATION], citing [CITATION]. This court has refined the rule in
Ritchie as:
[A] court may conduct an in camera inspection of child-abuse records
or reports and also has the inherent power to order disclosure of such
Case No. 9-22-13
records or reports where (1) the records or reports are relevant to the
pending action, (2) good cause for such a request has been established
by the person seeking disclosure, and (3) where admission of the
records or reports outweighs the confidentiality considerations set
forth in R.C. 5153.17 and R.C. 2151.421(H)(1).
(Emphasis sic.) [CITATION] at 585. See [CITATION] at ¶ 85.
{¶26} “‘However, the Richie court also held that a defendant may not require
the trial court to search through confidential records “without first establishing a
basis for his claim that it contains material evidence.”’” [CITATION], 5th Dist.
Stark No. 2017 CA 00199, 2018-Ohio-4805, ¶ 43, quoting [CITATION], 5th Dist.
Delaware No. 2005CAA01002, 2005-Ohio-5639, ¶ 68, quoting [CITATION] at 58, fn.15.
“‘“[A] defendant is entitled to the trial court’s in camera inspection of children
services agency records where the defendant shows that there is a reasonable
probability, grounded on some demonstrable fact, that the records contain material
relevant to the defense.”’” Id., quoting [CITATION] at ¶ 70, quoting [CITATION], 6th
Dist. Lucas No. L-94-272, 1996 WL 38784, *2 (Feb. 2, 1996).
{¶27} Here, we find that, in his motion to review children’s services records,
Green failed to show there was a reasonable probability, grounded on some
demonstrable fact, that the records he sought contained material evidence relevant
to his defense. First, we note that the record on appeal is not clear that the children’s
services records Green requests even exist. At the pretrial held on April 15, 2021,
defense counsel stated that he sent a subpoena to Children’s Services for “some
records that apparently do not exist.” (Apr. 15, 2021 Tr. at 6). The defense indicated
Case No. 9-22-13
its intention to refile the subpoena “requesting different records.” (Id.). Yet, the
record does not indicate that defense counsel actually refiled the subpoena
requesting the “different records.” In its judgment entry denying Green’s motion to
review children’s services records, the trial court, likewise, questioned the existence
of the records. (Doc. No. 30). It is at least plausible that Green would have been
aware of the existence of records relating to his mother and stepfather with himself
as the child-victim. Furthermore, Green’s trial counsel is in the best position to
know if such records exist, through his client, yet he was unable to establish the
existence of the records he sought, much less that the records, if they exist, contain
material evidence relevant to his defense. Because Green was unable to meet this
burden, we find that the trial court was not required to conduct an in camera
inspection of the records prior to overruling Green’s motion to review children’s
services records. See [CITATION] at ¶ 72.
Exclusion of Prior Bad Acts Testimony
{¶28} Green alleges that the trial court erred by excluding witness testimony
regarding specific instances of McGhee’s alleged abuse of Green and Floyd.
{¶29} Again, the admissibility of evidence is within the sound discretion of
the trial court. [CITATION], ¶ 11.
We review a trial court’s determination on the admission of evidence under an abuse
of discretion standard. [CITATION], ¶ 20.
Case No. 9-22-13
{¶30} Evid.R. 404 and 405 relate to the introduction of character evidence.
Evid.R. 404(A) provides that “[e]vidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity therewith
on a particular occasion.” However, Evid.R. 404(A)(2) provides several exceptions
to this general rule as it relates to the character of the victim. In pertinent part,
Evid.R. 404(A)(2) provides that:
Evidence of a pertinent trait of character of the victim of the crime
offered by the accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the victim offered by
the prosecution in a homicide case to rebut evidence that the victim
was the first aggressor is admissible[.]
Evid.R. 405, which governs the methods of proving character, states:
(A) In all cases in which evidence of character or a trait of character
of a person is admissible, proof may be made by testimony as to
reputation or by testimony in the form of an opinion. On cross-
examination, inquiry is allowable into relevant specific instances of
conduct.
(B) In cases in which character or a trait of character of a person is an
essential element of a charge, claim, or defense, proof may also be
made of specific instances of his conduct.
{¶31} In [CITATION], the Supreme Court of Ohio held that “Evid.R.
405(B) precludes a defendant from introducing specific instances of the victim’s
conduct to prove that the victim was the initial aggressor.” [CITATION]. The Court also noted that “[a] defendant may
successfully assert self-defense without resort to proving any aspect of the victim’s
character.” (Emphasis sic.) Id.
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{¶32} However, we have “interpreted Evid.R. 405 as permitting a defendant
to ‘testify about specific instances of the victim’s prior conduct known to the
defendant in order to establish the defendant’s state of mind.’” [CITATION], quoting [CITATION]. “The crucial element of a
self-defense claim is the defendant’s state of mind, not the character of the victim.”
[CITATION] at ¶ 59.
{¶33} Here, Green contends that the trial court erred by prohibiting
testimony regarding specific acts of violence perpetuated by McGhee toward Green
and Floyd. Defense counsel sought to present four possible defense witnesses:
Deante Smith, Deandre Gale, Timothy Nelson, and Dejaun Smith. According to
defense counsel, the individuals had witnessed instances of McGhee acting in a
violent manner toward Green in the months leading up to McGhee’s death. (Feb.
1-10, 2022 Tr. at 424-425). The trial court agreed that the proper procedure would
be for the defense to proffer the testimony of the four witnesses at the beginning of
the defense’s case-in-chief, so the trial court could make a decision on the
admissibility of the potential witnesses’ testimony at that time.
{¶34} However, Green chose not to proffer the testimony of the four
witnesses and instead conceded that the specific acts evidence to which they were
going to testify were not admissible. (Feb. 1-10, 2022 Tr. at 987). Accordingly, the
trial court never ruled on the admissibility of the witnesses’ potential testimony,
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and, thus, there is no decision on the admissibility of the potential witnesses’
testimony for us to review.
{¶35} Green also alleges the trial court erred by prohibiting testimony from
detectives regarding prior shootings at the home, and testimony from Floyd and
Dasani Hooks, Green’s sister, about the domestic violence Green and Floyd endured
at the hands of McGhee. However, despite the trial court’s repeated offer for the
defense to proffer the testimony, defense counsel made the strategic decision to not
[SEGMENT 21]
offer this additional testimony. Accordingly, we are not able to review the
admissibility of the potential testimony because it is not included in the record.
{¶36} “‘An alleged victim’s purported violent nature is not an essential
element of self-defense and therefore, witnesses other than the defendant have no
admissible basis for testifying to specific instances of violent conduct.’” [CITATION]
Furthermore, we note that a trial court’s Evid.R. 405(B) ruling is subject to harmless
error analysis. [CITATION] “The improper exclusion of evidence
is harmless where the remaining evidence provides overwhelming proof of a
defendant’s guilt.” Id. Accordingly, even if the trial court erred by informing the
parties that specific acts evidence were not admissible in a self-defense case, that
error is harmless because the State offered overwhelming evidence of Green’s guilt.
Case No. 9-22-13
{¶37} Moreover, a plethora of testimony regarding McGhee’s demeanor,
character, and reputation for violence was presented to the jury by a number of
witnesses. Specifically, Floyd and Green gave an account of the violent acts
McGhee allegedly engaged in on January 18, 2021, prior to his death, including
slamming Floyd against the wall and attempting to choke her and threatening Green.
Floyd testified that McGhee had a reputation for violence and that this reputation
for violence caused her to fear for herself and for Green. Green testified that
McGhee “has always been violent” and that he was “afraid” of McGhee on January
18, 2021. ([CITATION]). Hooks testified that she had been
around McGhee for a significant portion of her life and that she has experienced
behaviors from him that leads her to characterize living in a home with McGhee as
“[u]nhealthy.” ([CITATION]). Hooks also testified to McGhee’s reputation in
the community as a drug dealer who was angry, toxic, and a threat. ([CITATION]).
Moreover, several witnesses mentioned prior shootings that occurred at the
residence. Additionally, law enforcement officers acknowledged their familiarity
with McGhee through prior law enforcement contact. Mosley also testified that
McGhee served nearly seven years in prison. ([CITATION]). Thus, the jury heard
significant testimony regarding McGhee’s previous conduct and reputation. The
fact that there was violence in and about the home at the time that McGhee was
there was known to the jury. Perhaps most notably, the jury heard Green’s
testimony that he was afraid of McGhee on the day of the shooting and “feared for
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[his] life” during the final encounter. (Id. at 1261). Accordingly, based on the
record in front of us, we do not find that the potential exclusion of some testimony
regarding specific acts of violence would have affected the outcome of the trial and
was “essentially meaningless.” [CITATION] at ¶ 21.
Expert Witness Funding
{¶38} Green argues that he was denied the right to present a complete
defense due to the trial court’s denial of Green’s motions for expert funding. “The
authority to fund defense experts rests within the sound discretion of the trial court.”
[CITATION]. An
abuse of discretion implies that the court’s attitude was unreasonable, arbitrary, or
unconscionable. [CITATION].
{¶39} “As a matter of due process, indigent defendants are entitled to receive
the ‘raw materials’ and the ‘“basic tools of an adequate defense,”’” which may
include the provision of expert assistance. [CITATION], quoting [CITATION], quoting
[CITATION]. “‘Due process, as
guaranteed by the Fifth and Fourteenth Amendments to the United States
Constitution and Section 16, Article I of the Ohio Constitution, does not require the
government to provide expert assistance to an indigent criminal defendant in the
absence of a particularized showing of need.’” [CITATION], quoting [CITATION]. “‘Nor does
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it require the government to provide expert assistance to an indigent criminal
defendant upon mere demand of the defendant.’” [CITATION], quoting Mason at 150.
{¶40} The statutory authority allowing the state to provide funds for an
indigent defendant’s expert is R.C. 2929.024, which provides, in pertinent part:
[I]f the court determines that investigation services, experts, or other
services are reasonably necessary for the proper representation of a
defendant charged with aggravated murder at trial or at the sentencing
hearing, the court shall authorize the defendant’s counsel to obtain the
necessary services for the defendant, and shall order that payment of
the fees and expenses for the necessary services be made in the same
manner that payment for appointed counsel is made pursuant to
Chapter 120 of the Revised Code. If the Court determines that the
necessary services had to be obtained prior to court authorization for
payment of the fees and expenses for the necessary services, the court
may, after the services have been obtained, authorize the defendant’s
counsel to obtain the necessary services and order that payment of the
fees and expenses for the necessary services be made as provided in
this section.
“In noncapital cases, however, there is no authority mandating the payment of an
indigent defendant’s expert fees.” [CITATION]. “Ohio courts have nonetheless applied the factors used by
the Ohio Supreme Court in resolving requests for state-funded experts pursuant to
R.C. 2929.024 in non-capital cases.” [CITATION]. “The relevant factors in resolving the
appointment of a state-funded expert are: (1) the value of the expert assistance to
the defendant’s proper representation at trial; and (2) the availability of alternative
devices that fulfill the same functions as the expert assistance sought.” [CITATION].
{¶41} Furthermore, the Supreme Court of Ohio has held that “[d]ue process,
as guaranteed by the Fifth and Fourteenth Amendments to the United States
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Constitution and Section 16, Article I of the Ohio Constitution, requires that an
indigent criminal defendant be provided funds to obtain expert assistance at state
expense only where the trial court finds, in the exercise of a sound discretion, that
the defendant has made a particularized showing (1) of a reasonable probability that
the requested expert would aid in his defense, and (2) that denial of the requested
expert assistance would result in an unfair trial.” [CITATION]
{¶42} When a defendant requests expert funds, the burden is on the
defendant to demonstrate the reasonableness of the request. [CITATION] “A
defendant must provide a trial court with facts to establish a particularized need for
expert assistance and must demonstrate more than a mere possibility of assistance
to receive an expert witness at the state’s expense.” [CITATION] “‘At a minimum, the indigent defendant must present the trial judge with
sufficient facts with which the court can base a decision.’” [CITATION] “Undeveloped
assertions that the proposed assistance would be useful to the defense are patently
inadequate.” Id.
{¶43} Here, Green argues that the trial court abused its discretion by denying
several of his attempts to secure expert funds. After reviewing the record and the
relevant law, we find Green’s arguments to be without merit.
====== End of Document ====== Case No. 9-22-13
{¶44} On April 19, 2021, Green filed a motion for allowance of monies to
retain an expert witness. In the motion, Green stated that he contacted a forensic
psychologist, Dr. Bob Stinson, out of Columbus, Ohio, “who would testify
regarding the potential Battered Person Syndrome and effects of abuse at trial * * *
and the affects abuse may have had on the Defendant at the time the incident giving
rise to this matter occurred.” ([CITATION]). Green did not request or specify the
amount of funds he was requesting.
{¶45} The following day, the trial court noted that the motion was filed
outside the time limits set by Crim.R.12(D) without leave of court.1 ([CITATION]).
The trial court specifically stated that it explicitly instructed the parties not to file
motions outside the time limit set by the rule without leave of Court. (Id.).
Nonetheless, the trial court “reluctantly” granted Green up to $1,500 for the purpose
of retaining an expert. (Id.). The trial court noted that “[a]ny further amounts must
be authorized in advance or they will not be approved.” (Emphasis sic.) (Id.). The
trial court further noted Green’s motion “gives no guidance as to an amount needed,
but merely ask[ed] [the] Court to write a blank check.” (Id.). The trial court noted
that it would “not be so reckless with taxpayer funds.” (Id.). The trial court further
stated that “[t]he granting of these funds is not an indication that any testimony
1
On April 20, 2021, after the trial court filed its judgment entry noting the tardiness of Green’s motion for
allowance of monies, in response thereof, Green filed a motion for leave to file pretrial motions instanter.
([CITATION]).
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generated from these funds is relevant or admissible or even that Counsel has made
[SEGMENT 22]
a showing that an expert is even necessary in this case.” ([CITATION]).
{¶46} On May 5, 2021, Green filed a motion for a continuance of the jury
trial on the grounds that the expert witnesses contacted by the defense were likely
to need more time to evaluate Green prior to trial. At a pretrial held on May 7, 2021,
the trial court and the parties discussed the defense’s progress in procuring an expert
witness. The defense stated that it consulted a new potential expert witness, Dr.
Davis, who informed counsel he needed between $2,500 to $3,000 to “get started.”
(May 7, 2021 Tr. at 3-5) The trial court requested the defense provide the trial court
with information regarding the potential expert’s estimated fees for (1) interviewing
Green and rendering an opinion, (2) rendering the opinion in writing, and (3)
testifying at trial. ([CITATION]). The trial court indicated its preference to approve the
fees in incremental amounts so that if the defense determines that they do not want
or need some of the services, the court is “not already on the hook” for the expense.
([CITATION]). The court remarked that requesting and approving expert fees in
increments has been the court’s practice for 20 years. ([CITATION]). The court
requested the defense file a motion informing the court whether the $1,500 it
previously allotted in funds would be sufficient for the potential expert witness to
examine Green and render an opinion. ([CITATION]).
{¶47} At the pretrial, the parties also discussed Green’s pending motion for
a continuance for the purpose of pursing an expert witness. The trial court
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acknowledged that Green “has an absolute right to a full defense” and that an expert
consultation is “appropriate” in this case. ([CITATION] at 13). On that basis, the trial court
granted Green’s motion for a continuance. ([CITATION] at 19).
{¶48} On May 20, 2021, Green filed a motion styled “Amended Motion for
Allowance of Monies to Retain Expert Witness and Motion to Continue Pretrial and
Trial.” (Doc. No. 52). In the motion, Green stated that he had been in contact with
yet another prospective expert, Dr. Jolie S. Brams, a forensic psychologist who
could testify regarding potential battered person syndrome, the effects of abuse, and
the effects abuse may have had on Green at the time of the relevant conduct. Green
stated that the potential expert required an “an initial approval of $9,000.00.” (Doc.
No. 52).
{¶49} On May 27, 2021, the trial court filed a judgment entry denying
Green’s motion on the grounds that: (1) although styled as an “amended” motion,
Green’s filing was a new motion seeking new funds for a new expert and is,
therefore, untimely and filed without leave pursuant to Crim.R. 12(D); (2) Green
failed to show the expert would provide value; (3) alternative means will provide
Green with a defense; (4) the proposed expert is not willing to prepare for trial in a
timely manner; and (5) the expert has not justified the amount requested nor
articulated if $9,000 would address the costs of trial preparation and testimony.
(Doc. No. 55). The trial court noted that the $9,000 requested in Green’s motion “is
the highest request for an appointed expert in a non-capital case [it] has ever seen.”
Case No. 9-22-13
([CITATION]). The court further stated that the request did not provide an explanation as to
whether the amount will cover the cost of the diagnostics or “if it is a down payment
on a much larger request that will come later.” ([CITATION]). The court further found that
Green failed to show that the proposed expert would provide value or that there were
no alternative devices available to fulfill the same function. ([CITATION]).
{¶50} On June 29, 2021, Green’s trial counsel filed another motion to
continue the jury trial due to trial counsel’s continued search for an expert witness.
At the pretrial held on July 5, 2021, the trial court and the parties discussed Green’s
continued search for an expert witness and his pending motion to continue. While
addressing the matter, the trial court stated:
I want to make it clear. The Court, if an expert is needed in this case,
certainly wants the defense to get one. But it seems to me that the
defense is shopping for a particular type of expert and having trouble
finding one and that the ones that they have found kind of want a carte
blanche with regard to how much money they’re going to be able to
make off of this case and also want to dictate to the Court a schedule.
And this Court controls its own schedule. * * * I’m inclined to give
[the defense] some time, but it’s not endless time.
(July 5, 2021 Tr. at 4-5).
{¶51} Green’s trial counsel then stated that the pending request for a
continuance would likely be the last continuance it requested. ([CITATION] at 5). The
defense explained that it was in contact with District V Forensic Diagnostic Center.
The trial court indicated its approval of trial counsel’s plan to start with a more
general practitioner through District V Forensic Diagnostic Center and to request
additional evaluation and evaluations if indicated. ([CITATION] at 6-9). Defense counsel
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stated that it wanted to make sure Green has the best possible defense and that
counsel is “very appreciative of the Court offering funds on our request to make that
happen.” ([CITATION]). The trial court then granted Green’s pending motion for a
continuance and granted leave for Green to file a motion for Green to be evaluated
by District V Forensic Diagnostic Center. ([CITATION]).
{¶52} On July 12, 2021, Green filed a motion seeking the trial court to
approve a general psychological evaluation of Green by District V Forensic
Diagnostic Center “for the purposes of a referral to a specialist if necessary.” (Doc.
No. 64). On July 14, 2021, the trial court approved the motion. (Doc. No. 65).
{¶53} At a pretrial held on September 13, 2021, the parties were in receipt
of the general psychological evaluation dated September 8, 2021 that was prepared
by Dr. Alison Houle following her evaluation of Green. ([CITATION]). The trial court stated that the evaluation made several diagnostic claims including
mild cannabis use disorder and post-traumatic stress disorder (“PTSD”). ([CITATION]).
However, the court noted it did not see any mention of battered-person syndrome as
a diagnosis and that there was nothing in the report to lead the trial court to believe
that further evaluation along those lines was necessary. ([CITATION]). Defense counsel
indicated that, based on the report, it “believes the door is open” for further
evaluation. ([CITATION]). The trial court then requested that Green file a written
motion indicating the basis for additional evaluation. ([CITATION]).
Case No. 9-22-13
{¶54} On September 23, 2021, Green filed a motion to continue the jury trial
on the basis of potential additional expert evaluation. (Doc. No. 69). That same
day, Green also filed a motion for leave to file pretrial motions instanter. Attached
to that motion was a proposed motion for allowance of monies to retain an expert
witness for additional evaluation of Green. In the motion, Green requested the trial
court approve funds for having Green further evaluated “by an expert who can
extrapolate deeper issues surrounding [his] diagnosis” by Dr. Houle. (Doc. No. 70).
{¶55} At the pretrial held on October 21, 2021, the parties addressed Green’s
pending motions. The trial court granted Green’s motion for a continuance. ([CITATION]). Then, the trial court addressed Green’s pending motion for
funds for additional expert evaluation. ([CITATION]). The trial court stated that the
psychological evaluation does not recommend another specialist or psychologist
examine Green for further diagnosis. ([CITATION]). The court indicated its opinion that
the defense has not established grounds for the trial court to grant an additional
expert evaluation and witness but that it would take the matter under advisement.
([CITATION]). Defense counsel stated that it was in contact with District V Forensic
Diagnostic Center regarding the possibility of a witness correlating the diagnosis
between PTSD and battered person’s syndrome. ([CITATION]). The trial court
indicated that if counsel filed supplemental briefing on the matter based on the
conversation with an expert, then the trial court would consider that. ([CITATION]).
The following day, the trial court filed its judgment entry denying Green’s request
Case No. 9-22-13
for additional experts on the grounds that defendant had not met his burden to show
an additional expert is appropriate and had not shown significant value in requesting
a second defense expert to seek a diagnosis. (Doc. No. 105).
{¶56} At a January 28, 2021 pretrial and motion hearing, the defense
[SEGMENT 23]
indicated Dr. Houle was anticipated to proffer testimony during the trial. (Jan. 28,
2022 Tr. at 60). The defense informed the trial court of Dr. Houle’s hourly rate to
appear in court, which the trial court agreed to pay. (Id. at 61).
{¶57} After reviewing the record, we reject Green’s argument that the trial
court erred by denying his request for expert funding. Green contends that the trial
court’s denial of his requests for expert funds was “unreasonable” and “arbitrary.”
(Appellant’s Brief at 21). However, the record indicates the trial court was willing
to allocate funds for expert evaluation of Green within reasonable parameters; and,
in fact, the trial court did grant several of Green’s motions for expert evaluations
and continuances for the purpose of allowing Green’s trial counsel to consult
potential expert witnesses.
{¶58} Additionally, the trial court expressed a continued willingness to
consider Green’s requests for expert evaluations and funding provided that Green’s
defense counsel provided the court with information indicating that the evaluations
were reasonable and were reasonably calculated to assist in Green’s defense.
However, Green never provided the trial court with information indicating the scope
of its request and articulable reasons for the requests. Nor did trial counsel address
Case No. 9-22-13
the availability or lack thereof of alternative devices that fulfill the same functions
as the expert assistance sought.
{¶59} Green was evaluated by an expert who diagnosed him and provided
treatment recommendations. Ultimately, the evaluation did not produce the
diagnosis of battered person syndrome that Green’s trial counsel continued to seek.
Yet, Green never demonstrated a particularized need for such an expert. “Asserting
the mere possibility that an expert would be of assistance did not satisfy appellant’s
initial burden to establish the reasonableness of his request.” See [CITATION],
¶ 15. Our review of the record indicates the trial court was more than willing to provide funds for experts,
provided the defense could provide a breakdown of the anticipated expenses and
could demonstrate that the expert was reasonably necessary to advance the defense’s
case. However, Green was unable or unwilling to satisfy his initial burden to
establish the reasonableness of his request. Accordingly, we do not find that the
trial court abused its discretion by denying Green’s motions for allocation of expert
funds.
Exclusion of Dr. Houle’s Report and Testimony
{¶60} Green argues that the trial court erred by excluding Dr. Houle’s report
and witness testimony at trial.
{¶61} With respect to Dr. Houle’s report, we note that neither party moved
to admit the report. In fact, the defense specifically remarked it had “no plans” to
Case No. 9-22-13
admit Dr. Houle’s evaluation. [CITATION]. Accordingly, the trial
court did not make a decision regarding the admissibility of Dr. Houle’s report for
us to review. Furthermore, the document is not part of the record on appeal, and, as
such, we cannot review it.
{¶62} Regarding Dr. Houle’s testimony, Green argues the trial court erred
by not admitting Dr. Houle’s expert testimony. At trial, the defense proffered the
testimony of Dr. Houle. In her proffered testimony, she stated that she performed a
complete psychological evaluation of Green. [CITATION]. Following her
evaluations, she diagnosed Green with PTSD and cannabis use disorder. [CITATION]
{¶63} Dr. Houle spoke generally about the impact of adverse childhood
experiences on an individual and the possible impact those experiences can have for
children’s risk of mental health symptoms, PTSD, depression, anxiety, and
substance abuse. [CITATION]. She testified that when she
evaluated Green, she determined that he had experienced some adverse childhood
experiences. [CITATION].
{¶64} Dr. Houle stated that she reviewed the discovery and is aware of what
happened on January 18, 2021; however, she did not specifically evaluate Green’s
mental state on that day. [CITATION]. She testified that, generally, children
exposed to repeated trauma have a higher likelihood of perceiving something as
being dangerous when it is not or, conversely, failing to recognize an actual threat.
Case No. 9-22-13
[CITATION]). Dr. Houle testified that, in her professional experience, Green’s
childhood experiences shaped his view of the world and how he responds to other
people. [CITATION]). Dr. Houle also spoke, in general terms, about brain
development and the result of trauma on brain development. [CITATION]).
{¶65} On cross-examination, Dr. Houle stated that she did not complete an
evaluation for NGRI in this case; and, accordingly, never evaluated Green’s mental
state at the time of this offense. [CITATION]). She stated that during
her conversations with Green, she gathered that Green has unfavorable opinions of
McGhee. [CITATION]). She stated that Green resented McGhee, was jealous of
him, and believed that McGhee was loved more by his mother than was Green. [CITATION]).
{¶66} Dr. Houle stated that she is familiar with the term “battered woman
syndrome,” and that it is not a subtype or subset of PTSD. [CITATION]). She
clarified that she did not specifically evaluate Green for battered child syndrome.
[CITATION]). She also stated that her report could not be of assistance to the trier of
fact with respect to determining Green’s guilt or innocence. [CITATION]). In her
proffered redirect examination, Dr. Houle stated that Green’s childhood experiences
could have contributed to how he reacted on January 18, 2021. [CITATION]).
{¶67} At the conclusion of Dr. Houle’s proffered testimony, the trial court
determined that her testimony was not admissible, and Dr. Houle did not testify to
the jury.
Case No. 9-22-13
{¶68} After reviewing the record, we do not find the trial court abused its
discretion by excluding Dr. Houle’s testimony. Dr. Houle did not evaluate Green
for battered child syndrome and testified that she was not qualified to make that
diagnosis. Furthermore, Dr. Houle never evaluated Green’s mental state on the day
of the incident and her proffered testimony was too general to be of relevance to
assist the jury in determining Green’s guilt or innocence.
Impeachment with Prior Inconsistent Statements
{¶69} Green contends that the trial court erred by not allowing him to
impeach Mosley with prior inconsistent statements. Specifically, Green alleges the
trial court should have allowed him to impeach Mosley with her statement from the
preliminary hearing where she testified that McGhee walked down the stairs and
turned directly toward Green. Green also alleges the trial court erred by not
allowing him to impeach Mosley with a recorded cell-phone video depicting Mosley
telling Floyd that she erased cell phone evidence and lied to the police on the scene
because she had hidden drugs in Floyd’s couch the night of McGhee’s death.
{¶70} Evid.R. 613, which governs impeachment by self-contradiction,
provides as follows:
(A) In examining a witness concerning a prior statement made by the
witness, whether written or not, the statement need not be shown nor
its contents disclosed to the witness at that time, but on request the
same shall be shown or disclosed to opposing counsel.
(B) Extrinsic evidence of a prior inconsistent statement by a witness
is admissible if both of the following apply:
Case No. 9-22-13
(1) If the statement is offered solely for the purpose of impeaching the
witness, the witness is afforded a prior opportunity to explain or deny
the statement and the opposite party is afforded an opportunity to
interrogate the witness on the statement or the interests of justice
otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action
other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence under Evid.R.
608(A), 609, 616(A), or 616(B);
(c) A fact that may be shown by extrinsic evidence under the common
law of impeachment if not in conflict with the Rules of Evidence.
(C) During examination of a witness, conduct of the witness
inconsistent with the witness’s testimony may be shown to impeach.
If offered for the sole purpose of impeaching the witness’s testimony,
extrinsic evidence of the prior inconsistent conduct is admissible
under the same circumstances as provided for prior inconsistent
statements by Evid.R. 613(B)(2).
{¶71} After reviewing the record, we do not find that the trial court erred by
not admitting the extrinsic evidence of prior inconsistent statements to impeach
Mosley.
{¶72} The video of Floyd and her friends confronting Mosley regarding
allegedly hiding drugs in Floyd’s couch was proffered by the defense as Defense
Exhibit I and is included in the record. After reviewing the video in concert with
our review of the record, we find that the trial court did not err by failing to admit
the video as a means of impeaching Mosley. Although the video may have been
[SEGMENT 24]
offered “solely for the purpose” of impeaching Mosley, pursuant to Evid.R.
Case No. 9-22-13
613(B)(1), it was of no other “consequence to the determination of the action.”
Whether Mosley hid drugs in Floyd’s couch while the women were talking to the
police following the shooting on January 18, 2021 is immaterial to the ultimate issue
of Green’s potential criminal liability for McGhee’s death. See [CITATION]. Moreover,
Mosley admitted that although she “was drinking that night” and could not recall
the specifics, she did tell Floyd that she put something in her house that night “to
get her out of my face.” (Feb. 1-10, 2022 Tr. at 794-795). “If a witness admits
making a conflicting statement, there is no need for extrinsic evidence.” [CITATION].
{¶73} Moreover, our review of the video indicates that its prejudicial value
outweighs its probative value.2 The video presents an intimidating situation in
which Mosley is confronted by multiple people, including Floyd, who are screaming
at Mosley and trying to get her to admit that she hid a phone from law enforcement.
The video is also replete with racial epithets and offensive language.
{¶74} With respect to the transcript of the preliminary hearing, our review of
the record indicates that, on cross-examination, defense counsel read the relevant
2
In addition to the trial court’s concern that the prejudicial value of Defense’s Exhibit I outweighs its
probative value, the trial court expressed concern that Green’s trial counsel received the video mere days
before the commencement of trial, despite the recording happening approximately six months prior.
Although the record indicates defense counsel turned over the recording to the State soon after the video
came into the defense’s possession, the State and trial court expressed concern regarding the delayed
disclosure of the potential evidence.
Case No. 9-22-13
portion of the transcript of the preliminary hearing in open court. Accordingly, the
jury heard Mosley’s alleged inconsistent statement.
Conclusion
{¶75} For the foregoing reasons, we do not find that Green was denied his
constitutional right to present a complete defense. Green’s first assignment of error
is overruled.
Second Assignment of Error
The trial court erred and violated Ziair’s right to a fair trial when
it instructed the jury that Ohio’s stand-your-ground statute did
not govern Ziair’s trial, which took place after the statute’s
effective date. R.C. 2901.09(C).
Third Assignment of Error
Even under the former statute, the trial court erred when it
instructed the jury that Ziair had an “on-going” duty to retreat.
R.C. 2901.05; R.C. 2901.09.
{¶76} For ease of discussion, we will address Green’s second and third
assignments of error together. In his second assignment of error, Green argues the
trial court erred by not giving the jury a self-defense instruction consistent with the
changes to R.C. 2901.09 enacted in 2020 Am.S.B. 175(“S.B. 175”), the “stand your
ground” law.
{¶77} “Trial courts have a responsibility to give all jury instructions that are
relevant and necessary for the jury to properly weigh the evidence and perform its
duty as the factfinder.” [CITATION] “Requested jury instructions should ordinarily be given if
Case No. 9-22-13
they are correct statements of law, if they are applicable to the facts in the case, and
if reasonable minds might reach the conclusion sought by the requested instruction.”
[CITATION]. “The relevant
principle for jury instructions is not one of abstract correctness, but is whether an
instruction—even if a correct statement of law—is potentially misleading.” [CITATION].
{¶78} As a general matter, whether to give a particular jury instruction is
within the trial court’s discretion, which an appellate court will not disturb absent
an abuse of discretion. [CITATION]. However, a defendant who fails to object to the trial court’s decision
regarding jury instructions forfeits all but plain error on appeal. See [CITATION].
We note that Green’s
trial counsel did not object to the trial court’s determination that the amended
version of R.C. 2901.09 did not apply to the instant case because the offense
occurred prior to the effective date of the amended statute. However, Green’s
counsel did object to the trial court’s express instruction that stand your ground was
not applicable in the case and would have preferred that the trial court not include
any reference to stand your ground in the jury instructions. Green’s counsel also
objected to the trial court instructing the jury that Green had a duty to retreat.
{¶79} In contrast, “[w]hether the jury instructions correctly state the law is a
question that is reviewed de novo.” [CITATION].
Case No. 9-22-13
4347, ¶ 135. “An incorrect or inadequate instruction that misleads the jury or
otherwise prejudices the defendant constitutes reversible error.” [CITATION], citing [CITATION].
{¶80} Here, the offenses occurred on January 18, 2021 and the jury trial
commenced on February 1, 2022. R.C. 2901.09 was amended on April 6, 2021.
Thus, the statute was amended after the offense but prior to the commencement of
trial.
{¶81} Prior to the April 6, 2021 amendments, R.C. 2901.09 stated:
a person who lawfully is in that person’s residence has no duty to
retreat before using force in self-defense, defense of another, or
defense of that person’s residence, and a person who lawfully is an
occupant of that person’s vehicle or who lawfully is an occupant in a
vehicle owned by an immediate family member of the person has no
duty to retreat before using force in self-defense or defense of another.
{¶82} The current version of R.C. 2901.09, as amended by S.B. 175,
provides, in pertinent part:
(B) For purposes of any section of the Revised Code that sets forth a
criminal offense, a person has no duty to retreat before using force in
self-defense, defense of another, or defense of that person’s residence
if that person is in a place in which the person lawfully has a right to
be.
(C) A trier of fact shall not consider the possibility of retreat as a
factor in determining whether or not a person who used force in self-
defense, defense of another, or defense of that person’s residence
reasonably believed that the force was necessary to prevent injury,
loss, or risk to life or safety.
(Emphasis added.)
Case No. 9-22-13
{¶83} Here, the parties disagree whether the version of R.C. 2901.09
effective at the time of the offense or the one effective at the time of trial applied to
the instant case. Green argues the trial court should have given jury instructions
consistent with the amended version of R.C. 2901.09, the version of the statute that
was in effect at the time of trial. Conversely, the State contends that the version of
the statute effective at the time of the offense applied in the instant case; and, thus,
the trial court did not err by instructing the jury in accordance therewith.
{¶84} We have not yet addressed whether Ohio’s stand-your-ground law
applies in situations, like the present one, where the conduct occurred prior to the
statute’s effective date of April 6, 2021 but the trial occurred after the effective date.
However, other appellate districts have considered the question and come to
different conclusions. At least four appellate districts –the First, Second, Eighth,
and Ninth- have held that Ohio’s stand your ground law does not apply in situations
where the conduct occurred prior to April 6, 2021. [CITATION].
Case No. 9-22-13
[CITATION]; State v.
[CITATION], ¶ 69-72, appeal allowed,
[CITATION]; State v. [CITATION], ¶ 25-28, appeal allowed, [CITATION], stay lifted, [CITATION]; State v. [CITATION], ¶ 79, appeal not allowed, [CITATION]; State v. [CITATION], ¶ 15-30, appeal accepted, [CITATION].
Conversely, several appellate districts, including the Fifth and Eleventh District
Courts of Appeals, have found that the stand-your-ground law applies in situations
where the trial occurs after the effective date of the statute, regardless of when the
underlying conduct occurred. See State v. [CITATION], ¶ 51-52; State v. [CITATION], ¶ 27-28, motion to certify allowed, [CITATION], and appeal allowed, [CITATION]. The
question of whether R.C. 2901.09, as amended to eliminate the duty to retreat for
self-defense, applies to trial held after the effective date of the act, regardless of the
date of the offense, is currently pending in the Supreme Court of Ohio. State v.
[SEGMENT 25]
[CITATION], ¶ 25-30, appeal
allowed, [CITATION], stay lifted, [CITATION].
Case No. 9-22-13
{¶85} “A statute may not be applied retroactively unless the General
Assembly expressly makes it retroactive.” [CITATION], ¶ 10, citing [CITATION], ¶ 9.
“A statute is presumed to be prospective in its operation unless expressly made
retrospective.” R.C. 1.48; [CITATION] at ¶ 9. “To overcome the presumption that the
statute applies prospectively, it must ‘clearly proclaim its retroactive application.’”
[CITATION] at ¶ 38, quoting [CITATION] at ¶10. However, even “when the legislature has made
a statute expressly retroactive, the determination whether that statute is
unconstitutionally retroactive in violation of the Ohio Constitution depends on
whether it is ‘remedial’ or ‘substantive’—if the law is ‘remedial,’ then its retroactive
application is constitutional; if the law is substantive, then its retroactive application
is unconstitutional.” [CITATION] at ¶ 10, citing [CITATION], superseded by statute on other grounds as
stated in [CITATION].
“[L]aws affecting rights * * * are substantive in nature.” Id.
{¶86} After reviewing the relevant appellate decisions that have addressed
the issue, we are persuaded by the reasoning of the First, Second, Eighth, and Ninth
appellate districts who have found that the amendments to R.C. 2901.09(B) are
substantive in nature, and, accordingly, do not apply retroactively. See, e.g., [CITATION]
at ¶ 17; [CITATION] at ¶ 19; [CITATION] at ¶ 30. In addition to the sound reasoning adopted
by these appellate districts, we note that the preamble to S.B. 175 specifically states
Case No. 9-22-13
the purpose of the act is to “expand the locations at which a person has no duty to
retreat before using force under both civil and criminal law.” (Emphasis added.)
We find this language to be an acknowledgement of the General Assembly’s intent
to create a substantive right through the amendment to R.C. 2901.09.
{¶87} Thus, we find that the trial court did not err by determining that Ohio’s
stand-your-ground law was not applicable to the instant case.
{¶88} Green’s second assignment of error is overruled.
{¶89} In his third assignment of error, Green argues that, even under the
former statute, the trial court erred by instructing the jury that Green had an on-
going duty to retreat. Green contends that the testimony established that he
attempted unsuccessfully to flee from from McGhee twice, and, accordingly, had
no duty to retreat as long as he reasonably believed he was in imminent danger of
bodily harm and deadly force was his only escape. Green also argues that because
his mother, who he was allegedly protecting, was still inside the house, he did not
have a duty to retreat.
{¶90} However, the State presented evidence at trial which indicates that
Green stood outside of the residence at 126 S. Seffner Ave., with a firearm, and
waited for McGhee to exit the house and then engaged him. Moreover, the State’s
evidence demonstrated that Green shot McGhee on a public sidewalk, which is
outside the privilege of defending one’s home.
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{¶91} We likewise find Green’s argument that he had no duty to retreat
because his mother had no duty to retreat to be unavailing. Floyd testified that she
succeeded in removing McGhee from her home. Although she was still in the house
at the time of the shooting, she was in the process of trying to locate her shoes so
that she could follow McGhee outside when he was shot by Green.
{¶92} Accordingly, we do not find that the trial court erred by instructing the
jury that McGhee had an ongoing duty to retreat.
Fourth Assignment of Error
Ziair was deprived of his right to the effective assistance of
counsel. Sixth and Fourteenth Amendments, U.S. Constitution;
Article I, Sections 10 and 16, Ohio Constitution.
{¶93} In his fourth assignment of error, Green argues that he was denied the
effective assistance of counsel. Specifically, Green contends that his trial counsel
was ineffective for failing to propose a “stand-your-ground” jury instruction despite
the trial court’s decision that such a jury instruction did not apply in the instant case.
He also argues his trial counsel was ineffective for failing to ask Green about
specific instances of the victim’s prior violent conduct.
{¶94} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” [CITATION]. A
defendant asserting a claim of ineffective assistance of counsel must establish: (1)
counsel’s performance was deficient or unreasonable under the circumstances; and
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(2) the deficient performance prejudiced the defendant. [CITATION], citing [CITATION]
(1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. [CITATION]. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. [CITATION].
Tactical or strategic decisions, even if unsuccessful, do not generally constitute
ineffective assistance of counsel. [CITATION].
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See [CITATION].
{¶95} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” [CITATION], quoting [CITATION]. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
[CITATION].
{¶96} Turning to Green’s argument, we focus entirely on the prejudice prong
of the ineffective-assistance-of-counsel test. See [CITATION] (“If the appellant does not establish one of [the
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prongs of the test], the appellate court does not need to consider the facts of the case
under the other prong of the test.”). Green contends he received ineffective
assistance of counsel due to his trial counsel’s alleged failure to propose a stand-
your-ground jury instruction despite the trial court’s decision that the jury
instruction did not apply in the instant case and for failing to ask Green about
specific instances of McGhee’s prior violent conduct. However, in his appellant’s
brief, Green concedes that those actions by his trial counsel would likely have been
“futile.” (Appellant’s Brief at 31-32). See [CITATION] at ¶ 20, quoting [CITATION], 8th Dist. Cuyahoga No. 94475, 2011-Ohio-704, ¶ 33 (“‘[T]he failure
to do a futile act cannot be the basis for claims of ineffective assistance of counsel
and is not prejudicial.’”). We agree with counsel’s assessment that such acts by trial
counsel would have been futile. Furthermore, Green fails to argue specifically how
his trial counsel’s alleged shortcomings prejudiced him. Accordingly, we do not
find that Green established that his trial counsel was ineffective.
{¶97} Green’s fourth assignment of error is overruled.
Fifth Assignment of Error
Alternatively, the jury’s verdict that Ziair did not act in defense
of self or another was against the manifest weight of the evidence
presented. Fifth and Fourteenth Amendments, U.S. Constitution;
Article I, Section 10 and 16, Ohio Constitution.
{¶98} In his fifth assignment of error, Green argues that his convictions are
against the manifest weight of the evidence. Specifically, Green contends that the
greater weight of credible evidence established that he acted in self-defense.
Case No. 9-22-13
Standard for Manifest-Weight Review
{¶99} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine the entire record, “‘weigh[] the
evidence and all reasonable inferences, consider[] the credibility of witnesses and
determine[] whether in resolving conflicts in the evidence, the [trier of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’” [CITATION], quoting [CITATION]. A
reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the witnesses.
[CITATION]. When applying the manifest-
weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily
against the conviction,’ should an appellate court overturn the trial court’s
judgment.” [CITATION], quoting [CITATION].
Green’s Convictions
{¶100} Green was convicted of murder in violation of R.C. 2903.02(B),
[SEGMENT 26]
which provides that:
No person shall cause the death of another as a proximate result of the
offender’s committing or attempting to commit an offense of violence
that is a felony of the first or second degree and that is not a violation
of [R.C. 2903.03 or 2903.04].
Case No. 9-22-13
{¶101} Here, Green was convicted of shooting and killing McGhee as the
proximate result of committing or attempting to commit the offense of felonious
assault pursuant to R.C. 2903.11(A)(1) upon McGhee.
{¶102} R.C. 2903.11(A)(1), which codifies the offense of felonious assault,
provides, in pertinent part that “[n]o person shall knowingly * * * [c]ause serious
physical harm to another * * *.” “A person acts knowingly, regardless of purpose,
when the person is aware that the person’s conduct will probably cause a certain
result or will probably be of a certain nature.” R.C. 2901.22(B).
{¶103} Green attempted to assert a self-defense claim as to all allegations.
R.C. 2901.05(B)(1), states as follows:
A person is allowed to act in self-defense, defense of another, or
defense of that person’s residence. If, at the trial of a person who is
accused of an offense that involved the person’s use of force against
another, there is evidence presented that tends to support that the
accused person used the force in self-defense, defense of another, or
defense of that person’s residence, the prosecution must prove beyond
a reasonable doubt that the accused person did not use the force in
self-defense, defense of another, or defense of that person’s residence,
as the case may be.
{¶104} “Under R.C. 2901.05(A) and (B)(1), a defendant claiming self-
defense has the burden of production—that is, the burden of producing evidence
that ‘tends to support’ his use of force in defending himself.” [CITATION], “Under the current version of R.C.
2901.05, if evidence is presented ‘that tends to support’ that the defendant used the
force in self-defense, the prosecution must prove beyond a reasonable doubt that the
Case No. 9-22-13
accused did not act in self-defense.” (Emphasis sic.) [CITATION] Accordingly, “the burden of proof for
* * * self-defense has shifted to the state,” but “the burden of production for * * *
self-defense[ ] remains with the defendant.” (Emphasis sic.) [CITATION]
{¶105} “The elements of self-defense differ depending on whether the
defendant used deadly or non-deadly force to defend himself.” [CITATION] “The use of a gun constitutes the
use of deadly force.” [CITATION]
{¶106} The elements of a self-defense claim are:
(1) that the defendant was not at fault in creating the situation giving
rise to the affray; (2) that the defendant has a bona fide belief that he
[or she] was in imminent danger of death or great bodily harm and
that his [or her] only means of escape from such danger was in the use
of such force; and (3) that the defendant did not violate any duty to
retreat or avoid the danger.
[CITATION], quoting [CITATION]
{¶107} “[T]he State must ‘disprove at least one of the elements of self-
defense beyond a reasonable doubt.’” [CITATION], quoting [CITATION] “The elements of self-defense are cumulative,
-44- Case No. 9-22-13
and a defendant’s claim of self-defense fails if any one of the elements is not
present.” [CITATION].
Analysis: Manifest Weight of the Evidence
{¶108} In support of his argument that his murder conviction is against the
manifest weight of the evidence, Green argues the State’s eyewitness, Mosley, “was
biased” and “offered inconsistent and unreliable testimony.” (Appellant’s Brief at
32-33). On the other hand, Green argues that “he testified consistently and without
contradiction [that] he had a bona fide belief that he and his mother were in
imminent danger of death or serious bodily harm.” (Id. at 33). However, upon
review of the record, we do not conclude that the jury’s witness-credibility
determinations were unreasonable in light of the evidence presented at trial.
{¶109} At trial, Mosley, McGhee’s fiancée at the time of his death, testified
that on January 18, 2021, she spent the day with McGhee in Columbus. (Feb. 1-10,
2022 Tr. at 748-749). After they returned to Marion, they visited a friend’s house
to watch a sporting game and relax. (Id. at 749-750). Later in the night, McGhee
drove himself and Mosley to Floyd’s house. (Id. at 751-752). When they arrived
at the house, McGhee entered through the unlocked front door while Mosley
remained in the vehicle. (Id. at 753-754). McGhee left the keys in the ignition and
the driver-side vehicle door open. (Id. at 758, 789); (State’s Ex. 36).
{¶110} Shortly thereafter, Mosley observed Green exit the house through the
side door. (Feb. 1-10, 2022 Tr. at 755). According to Mosley, Green walked up to
Case No. 9-22-13
the driver’s-side door and told Mosley, “You all got four minutes to pull off, or I’m
going to shoot * * * that bitch up.” [CITATION]. Mosley testified that when Green
referenced “shooting it up” that he held up a gun for Mosley to see. [CITATION].
Then, Green returned inside the house. [CITATION].
{¶111} Mosley testified that Green’s actions prompted her to get out of the
vehicle and walk to the front of the house to retrieve McGhee. [CITATION]. When
Mosley approached the front door, the front door was open but the screen door was
closed, and Green was pacing back and forth at the bottom of the stairs holding the
gun. [CITATION]. Mosley claims that when she reached for the screen door to enter
the house, Green said, “You ain’t coming in here, because all this is because of you.”
[CITATION]. Mosley stated this interaction prompted her to walk back down the
front steps, return to the car, and try to locate her phone. [CITATION]. As Mosley searched
for her phone that had fallen between the vehicle’s seats due to her shaking hands,
Green again approached the vehicle, pointed the gun at her and told her that he
should shoot her because this was all because of her. [CITATION]. Then, Green
moved to the driver’s-side door, pointed the gun at her again, and said, “I should
shoot you. I should kill your ass, because all of this is because of you.” [CITATION].
Then, Mosley recalled that Green went toward the side of the house near Center
Street. [CITATION].
{¶112} Shortly thereafter, Mosley looked up from praying and saw McGhee
and Floyd coming out the front door of the house. [CITATION]. At the time Mosley looked
Case No. 9-22-13
up, Floyd was on the porch and McGhee was midway down the front steps. ([CITATION]). Mosley stated that McGhee looked like he was going to walk toward her,
but then he took a step toward the sidewalk and pivoted toward Center Street where
Green was standing. ([CITATION]). Then, Mosley heard McGhee say, “But you a
child.” ([CITATION]). Mosley looked and saw Green standing with a gun pointed at
McGhee. ([CITATION]). Mosley did not hear Green reply. ([CITATION]). Then she heard two shots.
([CITATION]). Upon hearing the shots, Mosley opened the car door and lay down in the
snow. ([CITATION]). After she hit the ground, Mosley heard McGhee say, “Well, you think
I’m scared of you because you got a gun?” ([CITATION]). Then, Mosley testified that
she heard five to six more shots. ([CITATION]). When Mosley looked back up, she saw
McGhee pivot back toward Mosley, grab his chest, and fall to the ground. ([CITATION]).
She observed Green running toward Center Street. ([CITATION]). Shortly thereafter,
Mosley saw Floyd run out of the house and toward McGhee. ([CITATION]). Then,
Mosley located a phone in the vehicle and called the police. ([CITATION]).
{¶113} Mosley admitted that, initially, she told the police that she did not see
who shot McGhee. ([CITATION]). However, shortly after Mosley left the house
that evening, she called the police and told them that she saw who shot McGhee and
[SEGMENT 27]
was willing to give the police a statement regarding what she had seen. ([CITATION]).
Mosley testified that the reason she initially did not tell the officers who shot
McGhee was that Green was on the run and Mosley was concerned for the safety of
her children. ([CITATION]). Mosley further stated that she had been with McGhee
====== End of Part ====== Case No. 9-22-13
the entire day and did not see him with a weapon at any time throughout the day.
([CITATION] at 778).
{¶114} On cross-examination, Mosley, who was incarcerated at the time of
the trial, testified she has also been convicted of several crimes in the past including
several counts of theft and a count of obstructing official business. ([CITATION]
Tr. at 747-748, 797-801). Mosley also specified to McGhee’s path of travel after
leaving the house. ([CITATION] at 813). Mosley stated that if McGhee had turned
left at the bottom of the front steps, it would have been a direct path to his vehicle.
([CITATION] at 813-814). She stated that when McGhee walked down the stairs,
he pivoted left toward the car, then, when McGhee noticed Green, he turned toward
Green. ([CITATION] at 814). However, he never took steps from that point.
([CITATION] at 814-815).
{¶115} Floyd, Green’s mother, was called as a court’s witness at the request
of the State. ([CITATION] at 835). Floyd testified that on January 18, 2021, she and
McGhee had been exchanging messages throughout the day, and that there was some
discussion of Floyd sending McGhee a sexual video accompanying a text that said,
“I have something special for you. Good night.” ([CITATION] at 836-837). Floyd
testified that McGhee arrived at her home at approximately 10:35 p.m. and that he
was lying shot on the sidewalk by 10:40 p.m. ([CITATION] at 837).
{¶116} Floyd stated that when McGhee arrived at the home, he came up to
her room, where she was lying in bed, and pulled the covers off her. ([CITATION]
2022 Tr. at 841). Floyd stated that she and McGhee argued, and at some point,
Case No. 9-22-13
McGhee left to go outside. [CITATION]. Floyd stated that she wanted to follow
McGhee out of the house, but she was unable to locate her shoes. [CITATION]. She was on
the porch attempting to locate her shoes when she heard approximately three to four
gunshots. [CITATION]. She looked up and saw McGhee fall to the ground and Green
run away from the scene. [CITATION]. Floyd testified that she ran out of the house to
McGhee’s side. [CITATION].
{¶117} Floyd stated she initially told officers she did not know what
happened, when in fact, it was her son, Green, who shot McGhee. [CITATION].
However, a little more than an hour after the shooting, she admitted to one of the
officers at the scene that Green was the one who shot McGhee. [CITATION].
{¶118} Floyd stated that she and McGhee were married in 2009 but had
ended their relationship by October 2020 and McGhee was no longer living at her
home at 126 S. Seffner Ave. on January 18, 2021. [CITATION].
Floyd confirmed that, although they were not currently together, she and McGhee
maintained communication and continued having an intimate relationship. [CITATION].
{¶119} On cross-examination, Floyd provided more detail regarding the
altercation she had with McGhee on January 18, 2021. She stated Floyd pulled the
covers off her and she got up and flipped on the lights. [CITATION, CITATION]. Then, she
and Floyd began to argue. [CITATION]. At some point, McGhee choked Floyd up
against the refrigerator in her room. [CITATION, CITATION]; (Defendant’s Ex. A).
Case No. 9-22-13
Floyd stated she was fearful when McGhee grabbed her by the throat and slammed
her against the wall. [CITATION].
{¶120} Floyd recalled that Green came upstairs and told McGhee, “[H]e
better not put his hands on his momma no more.” [CITATION]. Floyd stated that she told
Green, “I’ll take care of it.” [CITATION]. She stated she was in fear for Green and wanted
to get Green out of the confrontation between her and McGhee. [CITATION]. According
to Floyd, Green then went downstairs. [CITATION].
{¶121} Floyd and Green continued their argument in Floyd’s bedroom, and
Floyd instructed McGhee to “get out” of the house. [CITATION]. McGhee went down the stairs with Floyd following him. [CITATION]. According to Floyd,
McGhee saw Green in the bathroom off the kitchen and went toward Green. [CITATION].
She stated that McGhee asked Green, “What you gonna do, bitch?” [CITATION]-885). However, Floyd jumped in between McGhee and Green. [CITATION]. Floyd
stated that she was in fear for her son because McGhee has a reputation for violence.
[CITATION]-886). Floyd recalled that after she jumped between McGhee and Green,
Green exited the house through the side door off the kitchen. [CITATION]-887).
{¶122} Floyd stated that she continued to argue with McGhee and told him
to “[l]eave” and “[g]et out.” [CITATION]. She stated that McGhee did not yell back
at her. [CITATION]. However, McGhee pinned Floyd against the staircase by her throat.
[CITATION]-888). In response, Floyd grabbed McGhee’s shirt and kicked him in the
midsection to get him off her. [CITATION]. Floyd stated that the choking lasted for
Case No. 9-22-13
approximately two to three seconds. ([CITATION]). Then, Floyd stated she shoved McGhee
out the front door. ([CITATION]).
{¶123} Floyd recalled that when McGhee reached the bottom of the front
porch steps, he immediately turned right. ([CITATION]). Floyd stated
she did not hear any of the words McGhee said to Green. ([CITATION]). Floyd testified
she has never known McGhee to carry a gun. ([CITATION]).
{¶124} Floyd admitted she initially told law enforcement officers that
McGhee did not hit her at all on January 18, 2021. ([CITATION]). However, she
later stated that she and McGhee entered into a physical altercation that night. ([CITATION]). She stated the reason she initially denied being hit by McGhee was that in
the immediate aftermath of the altercation she was “frantic” and “not thinking
straight.” ([CITATION]). Defendant’s Exhibits K and L, photographs which depict
Floyd on the evening of January 18, 2021 were introduced at trial. ([CITATION]). The photographs depict Floyd with a small mark on her
lip. ([CITATION]).
{¶125} Green also took the stand in his own defense. ([CITATION]).
at 1246). He testified that on January 18, 2021, he was at his home at 126 S. Seffner
Ave. when McGhee entered the house without knocking. ([CITATION]). According
to Green, McGhee was acting “[a]ggressive” and yelled at Green asking him where
his mother was. ([CITATION]). McGhee then went upstairs and Green
remained in the living room despite knowing that his mother was upstairs in her
Case No. 9-22-13
bedroom. ([CITATION]). Green stated that he did not try to stop McGhee from
coming to Floyd’s room because he knew they were just going to argue because
they “do it all the time.” ([CITATION]).
{¶126} According to Green, he eventually went to the bottom of the stairs to
monitor if things escalated further than arguing because McGhee “beat [his] mother
before.” ([CITATION]). While he waited at the bottom of the stairs, he heard
his mother screaming and loud banging against the walls which prompted him to go
upstairs to his mother’s room. ([CITATION]). Green testified that when he entered
the room, he witnessed McGhee choking his mom. ([CITATION]). Green stated
he told McGhee to keep his hands off Floyd and asked McGhee to leave three times.
([CITATION]).
{¶127} Green stated that his actions in defense of his mom prompted
McGhee to turn his attention to him. ([CITATION]) Green testified
that he ran downstairs and locked himself in the bathroom off the kitchen. ([CITATION]).
According to Green, he ran because McGhee “has always been violent” and he was
[SEGMENT 28]
afraid of McGhee. ([CITATION]). McGhee allegedly followed Green
downstairs and started kicking and banging on the bathroom door in an apparent
effort to enter the bathroom. ([CITATION]). Green stated that when the banging
stopped, he opened the door to see where McGhee was located. ([CITATION]).
{¶128} When he did not see McGhee near the bathroom door, he exited the
bathroom into the kitchen, where he saw McGhee and Floyd arguing. ([CITATION]).
Case No. 9-22-13
1253). Then, McGhee approached Green, grabbed him by his shirt, and threw him
against the wall and onto the floor. ([CITATION]). Green stated that, at this point,
Floyd intervened and got in between Green and McGhee. ([CITATION]). According
to Green, Floyd grabbed an air freshener and sprayed McGhee in the face with it,
causing McGhee to fall. ([CITATION]).
{¶129} Green testified that when McGhee fell to the ground, “[t]he gun came
out of his possession.” (Feb. 1-10, 2022 Tr. at 1254). Green stated he picked up
the gun and ran outside. ([CITATION]). When he got outside, Green stated that he
approached the front of McGhee’s vehicle and asked Mosley for help, which she
did not render. ([CITATION]). He denied threatening Mosley or showing her
the gun. ([CITATION]). Then, he stated that he stood by the north side of the front
steps, towards Center Street. ([CITATION]). Green explained that he did not run
because he “couldn’t leave [Floyd] in danger.” ([CITATION]). Green expounded that
he did not know what was happening to Floyd inside the house. ([CITATION]).
{¶130} According to Green, McGhee exited the house, came down the stairs,
and “started coming after [Green].” ([CITATION]). Green stated that when
McGhee came down the stairs, based on McGhee’s body language, Green believed
that McGhee was still “angry and mad.” ([CITATION]). Green stated that after
McGhee turned right, McGhee “started charging at [him].” ([CITATION]). Green then fired
two “warning shots” in the air to warn McGhee that if he continued to threaten him,
Green had a right to defend himself. ([CITATION]). McGhee then said, “You
Case No. 9-22-13
think I’m scared because you have a gun?” ([CITATION]). Green testified that he
did not feel that he could run at this point, because he did not want to leave his
mother, who was still in the house, in danger. ([CITATION]).
{¶131} Green testified that after Green fired the warning shots, McGhee kept
coming after him. ([CITATION]). So, he pointed the gun at McGhee,
pulled the trigger, and fired two shots toward McGhee. ([CITATION]). However, Green
denied that he intended for the shots to hit McGhee. ([CITATION]-1260). He further
denied that he intended to kill McGhee. ([CITATION]).
{¶132} After firing the second round of shots, Green observed McGhee fall
to the ground. ([CITATION]). Green stated that he then dropped the gun, left it at the scene,
and ran toward Center Street. ([CITATION]). He spent the next several days on the run before
turning himself in. ([CITATION]).
{¶133} On cross-examination, Green clarified he was in fear of his safety
and the safety of his mother. ([CITATION]-1263). Green stated he
knew he shot McGhee, yet he still ran away. ([CITATION]). He denied he knew that
he wounded McGhee gravely; rather, he thought maybe he “just nicked him.” ([CITATION]).
Further, he admitted that although he claimed to fear for his mother’s safety, he did
not return to the house to check on her well-being after he shot McGhee. ([CITATION]).
Rather, he ran away. ([CITATION]).
{¶134} Green explained that when he approached Mosley for help, he did
not yell “help” at any time. ([CITATION]). Nor did Green attempt to elicit help from
Case No. 9-22-13
any of the neighbors or the fire station that he ran past during his flight from the
scene. (Id. at 1265-1267).
{¶135} Furthermore, Green stated that when McGhee left the house and
came down the stairs, he knew McGhee was unarmed. (Feb. 1-10, 2022 Tr. at
1270). Green admitted that before McGhee did anything rather than walk down the
steps, Green had decided to shoot off some warning shots. (Id.). However, he
denied that the purpose of the warning shots was to intimidate McGhee. (Id.).
{¶136} Green argues the jury’s verdict is against the weight of the evidence
because Green was allegedly a more credible witness than Mosley. However, “[a]
verdict is not against the manifest weight of the evidence because the finder of fact
chose to believe the State’s [evidence] rather than the defendant’s version of the
events.” [CITATION]. “‘Although we review credibility when considering the manifest weight of the
evidence, the credibility of witnesses is primarily a determination for the trier of
fact.’” [CITATION], quoting [CITATION]. “‘The trier of fact is best
able “to view the witnesses and observe their demeanor, gestures[,] and voice
inflections, and use these observations in weighing the credibility of the proferred
testimony.”’” [CITATION], quoting [CITATION], quoting [CITATION].
Case No. 9-22-13
[CITATION], ¶ 24, citing [CITATION].
{¶137} Additionally, the evidence presented could have led a reasonable jury
to conclude that Green’s decision to shoot McGhee was not reasonable and was not
based on an honest belief in the need for self-defense. Specifically, the testimony
presented at trial could have led the jury to conclude that Green left the house,
threatened to kill Mosley and McGhee, and then chose to reengage McGhee as
McGhee attempted to leave 126 S. Seffner Ave.
{¶138} Furthermore, Green’s testimony was, at many points, inconsistent
with the testimony of Floyd, Mosley, and other witnesses. For instance, Green
contends McGhee brought the gun to the house and dropped it in the kitchen.
However, Mosley, who spent the day with McGhee, stated that that he did not have
a weapon of any kind on his person. Furthermore, Floyd stated that she had never
known McGhee to carry a firearm. Moreover, Green’s testimony that he left the
gun at the scene, on the sidewalk, is not consistent with the testimony of the other
witnesses or the physical evidence left at the scene. Despite Green’s insistence that
he left the gun on the sidewalk, it was never recovered, in spite of multiple law
enforcement officers combing the property for physical evidence, including bullets
and bullet casings.
{¶139} Green also denied shooting the gun more than four times. However,
this testimony is inconsistent with the testimony of multiple neighbors and witnesses
Case No. 9-22-13
who testified to hearing approximately six to eight gunshots. Furthermore,
surveillance video from a neighbor’s home was introduced as State’s Exhibit 87 and
was played for the jury. ([CITATION] Tr. at 445-448). In the video, eight
popping sounds were heard. ([CITATION] at 448); (State’s Ex. 87).
{¶140} Accordingly, after reviewing the evidence, we find that a reasonable
jury could have found that Green did not act in self-defense.
{¶141} Green’s fifth assignment of error is overruled.
Sixth Assignment of Error
Ziair’s statutory and due process rights were violated when he
was criminally indicted and convicted on a charge and
specifications that were never filed in or transferred from the
Marion County Juvenile Court. R.C. 2152.12; Fifth and
Fourteenth Amendments, U.S. Constitution; Article I, Section 16,
Ohio Constitution.
{¶142} In his sixth assignment of error, Green argues that his statutory and
due process rights were violated when he was indicted and convicted on a murder
charge and specifications in Marion County Common Pleas Court that were not filed
in or transferred from the Marion County Juvenile Court.
{¶143} On January 19, 2021, Green, then 17 years old, was charged in a two-
count complaint in the family division of the Marion County Court of Common
Pleas (“the juvenile court”). Green was charged with Count One of murder in
violation of R.C. 2903.02(A) (“purposeful murder”) and Count Two of aggravated
murder in violation of R.C. 2903.01(A), both unclassified felonies if committed by
[SEGMENT 29]
an adult.
Case No. 9-22-13
{¶144} The State sought transfer of Green’s case from the juvenile court to
the general division of the common pleas court. On February 11, 2021, a probable
cause hearing was held and the juvenile court judge found that the State had
established probable cause to believe that Green had committed the acts related to
both counts. The trial court found that bindover was mandatory pursuant to R.C.
2152.12. Accordingly, the matter was transferred to the Marion County Common
Pleas Court, General Division (“the adult court”).
{¶145} On February 24, 2021, the Marion County Grand Jury indicted Green
on three counts: Count One of murder in violation of [CITATION], an
unclassified felony; Count Two of murder in violation of [CITATION] (“felony
murder”), an unclassified felony; and Count Three of felonious assault in violation
of [CITATION], a second-degree felony. Additionally, each of the counts
contained a three-year firearm specification pursuant to [CITATION] and [CITATION]. Relative hereto, Counts Two and Three, and the accompanying firearm
specifications, were not among the charges in the complaint filed in the juvenile
court.
{¶146} Green argues that the trial court lacked subject-matter jurisdiction
over Counts Two and Three because they were not charged in the complaint filed
in juvenile court, and accordingly, the juvenile court did not issue findings of
probable cause for those offenses. Green argues that because the juvenile court
never found probable cause for the offenses of felony murder and felonious assault,
Case No. 9-22-13
the juvenile court never transferred, and the adult court never acquired, subject-
matter jurisdiction over those offenses. Notably, those charges and their attendant
specifications were the only charges that resulted in convictions.
{¶147} In support of his argument, Green relies primarily on the Supreme
Court of Ohio’s decision in [CITATION]. In
that decision, the Supreme Court of Ohio held that “[a] finding of probable cause is
a jurisdictional prerequisite under R.C. 2152.12 to transferring a child to adult court
for prosecution for an act charged.” (Emphasis added.) [CITATION] at ¶ 44. In [CITATION],
the State brought criminal charges against a juvenile in adult court for acts that the
juvenile court determined were unsupported by probable cause in addition to acts
that the juvenile court found were supported by probable cause. Id. at ¶ 11-12. The
Supreme Court of Ohio held that the trial court lacked subject-matter jurisdiction to
convict [CITATION], a juvenile offender, “for any acts charged for which no probable
cause has been found by a juvenile court.” Id. at ¶ 42. Accordingly, the Supreme
Court held that the adult court lacked subject-matter jurisdiction over the counts and
specifications that the trial court determined were not supported by probable cause.
Specifically, the Supreme Court of Ohio held that “because the juvenile court found
that the acts related to those counts and specifications were not supported by
probable cause and thus the juvenile court could not have made an amenability
determination with regard to those acts.” Id. at ¶ 43. Therefore, the Supreme Court
of Ohio concluded there was a “jurisdictional defect in the bindover process.” Id.
Case No. 9-22-13
{¶148} However, Smith is distinguishable from the instant case. Here, the
juvenile court made a finding of probable cause as to all the counts charged in and
bound over from the juvenile court (purposeful murder and aggravated murder). By
contrast, in Smith, the juvenile court specifically found no probable cause for several
counts that were subsequently charged in adult court. See [CITATION], ¶ 27.
{¶149} Significantly, subsequent to the decision in Smith and the time for
filing of briefs in the instant case, the Supreme Court of Ohio decided [CITATION],
in which the issue was “whether the state must prove in juvenile court that there is probable cause to believe that a juvenile
committed every act charged before the juvenile may be indicted for those acts in
adult court.” [CITATION] at ¶ 1. The Supreme Court held that “an adult court is not
necessarily limited to considering only the specific acts bound over from the
juvenile court.” Id. at ¶ 12. The Court explained as follows:
We acknowledge that, generally, a grand jury is empowered to return
an indictment on any charges supported by the facts submitted to it.
See [CITATION], paragraph two of the syllabus, superseded by statute on other grounds
as stated in [CITATION]. But a grand jury may not consider additional charges
arising from a different course of conduct or events that have not been
properly bound over by the juvenile court. [CITATION], ¶ 14
(citing cases from several Ohio appellate districts). This means that a
case transferred from a juvenile court may result in new indicted
charges in the adult court when the new charges are rooted in the acts
that were the subject of the juvenile complaint but were not
Case No. 9-22-13
specifically named in the individual acts transferred. [CITATION] at ¶ 35.
[CITATION] at ¶ 13.
{¶150} The Supreme Court then affirmed the defendant’s convictions on
Counts 45 and 46, which were not charged in the juvenile-court complaint, but were
charged in the grand jury indictment. [CITATION] The Court reasoned that although those
specific charges were not filed in the juvenile complaint, they were “based on
conduct that occurred on or about February 7, 2018—conduct that was in the
juvenile complaint against Burns.” [CITATION]
{¶151} Likewise, in the instant case, Counts Two and Three of the
indictment, and their accompanying firearm specifications, are based on conduct
that occurred on January 18, 2021, conduct that was in the juvenile complaint
against Green. Accordingly, we find that the adult court had subject-matter
jurisdiction with respect to those counts.
{¶152} Green’s sixth assignment of error is overruled.
Seventh Assignment of Error
Ziair was deprived of his constitutional rights because Ohio’s
mandatory transfer statutes violate due process guarantees. Fifth
and Fourteenth Amendments, U.S. Constitution; Article I,
Sections 10 and 16, Ohio Constitution.
{¶153} In his seventh assignment of error, Green argues that Ohio’s
mandatory transfer statutes violate juvenile offenders’ due process rights because
Case No. 9-22-13
the mandatory-transfer statutes do not permit an individualized assessment of the
juvenile.
{¶154} In support of his argument, Green relies on the Supreme Court of
Ohio’s decision in [CITATION],
which held that “the mandatory transfer of juveniles to a general division of a
common pleas court violates juveniles’ right to due process” because it does not
require “individual consideration at amenability hearings before being transferred
from the protections of juvenile court to adult court upon a finding of probable cause
for certain offenses.” [CITATION] at ¶ 24, 31. However, the Supreme Court of Ohio
granted reconsideration, and in [CITATION],
vacated its decision in [CITATION] and held that the mandatory bindover
of certain juveniles to adult court pursuant to R.C. 2152.10(A)(2)(b) and
2151.12(A)(1)(b) does not violate the juvenile offender’s due process or equal
protection rights. [CITATION] at ¶ 4, 38.
{¶155} Specifically, the [CITATION] Court determined that Aalim’s mandatory
bindover “satisfied the requirements of ‘fundamental fairness’” required by the
Ohio and federal due process clauses because Aalim had a hearing before a juvenile-
court judge to determine his age at the time of the offenses and that probable cause
existed to believe that Aalim committed the conduct alleged in the juvenile
complaint before the case was transferred from juvenile court to adult court. Aalim
Case No. 9-22-13
II at ¶ 27. The Supreme Court noted that Aalim was represented by counsel at this
hearing and had a parent present. Id.
{¶156} Here, like in [CITATION], Green was represented by counsel at a hearing
in front of the juvenile court where that court determined that the State met its
burden of demonstrating there was probable cause that Green committed the acts
alleged in the juvenile-court complaint. It was only following this hearing that the
matter was transferred from the juvenile court to the adult court. Accordingly, we
find that Green has failed to show that his mandatory bindover violated his right to
due process or that Ohio’s mandatory-bindover statutes facially violate the right to
due process. See [CITATION] at ¶ 27.
{¶157} Green’s seventh assignment of error is overruled.
Eighth Assignment of Error
The cumulative effect of the errors in this case deprived Ziair of
his right to a fair trial. Fifth and Fourteenth Amendments, U.S.
Constitution; Article I, Sections 10 and 16, Ohio Constitution.
{¶158} In his eighth assignment of error, Green summarily argues that he
was deprived of a fair trial due to the cumulative effect of the alleged errors outlined
in his other seven assignments of error. We disagree.
[SEGMENT 30]
{¶159} Under the cumulative-error doctrine, “a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of a fair trial
even though each of the numerous instances of trial court error does not individually
constitute cause for reversal.” [CITATION]
Case No. 9-22-13
Ohio-52, ¶ 83. “To find cumulative error, a court must first find multiple errors
committed at trial and determine that there is a reasonable probability that the
outcome below would have been different but for the combination of the harmless
errors.” In re J.M., [CITATION], ¶ 36. Here,
we have not found that the trial court committed any errors that were not harmless,
let alone, multiple errors. Therefore, the cumulative-error doctrine does not apply.
See [CITATION], abrogated
on other grounds, [CITATION] (“If there
[are] not multiple errors, * * * the cumulative error doctrine does not apply.”); [CITATION], citing [CITATION].
{¶160} Green’s eighth assignment of error is overruled.
Conclusion
{¶161} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Marion County Court
of Common Pleas.
Judgment Affirmed
WILLAMOWSKI and WALDICK, J.J., concur.
/eks
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[CITATION]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
CASE NO. 2-22-27
PLAINTIFF-APPELLEE,
v.
THOMAS ALAN STINEBAUGH, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2021 CR 0125
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: July 15, 2024
APPEARANCES:
Andrew R. Mayle and Benjamin G. Padanilam for Appellant
Micah R. Ault for Appellee Case No. 2-22-27
WILLAMOWSKI, P.J.
Introduction
{¶1} Defendant-appellant Thomas A. Stinebaugh (“Stinebaugh”) appeals the
judgment of the Auglaize County Court of Common Pleas, arguing that two of his
five convictions are not supported by sufficient evidence and that his trial counsel
was ineffective. On appeal, the issue is not whether Stinebaugh acted ethically but
whether the State properly established the two challenged convictions.
{¶2} Upon review, the conviction for having an unlawful interest in a public
contract is reversed because the State charged Stinebaugh under R.C. 2921.42(A)(1)
but failed to prove he had a definite and direct interest in the contract at issue. The
conviction for theft in office is reversed because the State failed to prove that the
expenditure at issue lacked authorized consent. This decision does not affect the
three convictions Stinebaugh has for conflicts of interest in violation of R.C.
103.02(D).
{¶3} Further, while Stinebaugh asserts that his attorney was ineffective, he
failed to prove that his counsel’s performance was deficient. For the reasons set
forth below, the judgment of the trial court is affirmed in part and reversed in part.
Facts and Procedural History
{¶4} On January 1, 2016, Stinebaugh took office as the Mayor of the City of
Wapakoneta. Tr. 322, 931. As this was a part-time position, Stinebaugh continued
to operate his building and remodeling company in addition to his official duties.
Case No. 2-22-27
Tr. 322, 923. Prior to taking office, Stinebaugh asked Chad Scott (“Scott”) to serve
as the city’s safety service director. Tr. 319. Scott accepted this offer and began
working in this position at the end of January 2016. Tr. 322. In this capacity, Scott
reported directly to Stinebaugh and had no other supervisors. Tr. 320-321. In turn,
the superintendents in the departments of engineering, waste management, and
public works reported to Scott. Tr. 321.
{¶5} In April of 2018, Stinebaugh applied for a building permit from the city
so that he could construct a house for a client on a lot at 708 Fairview Drive in
Wapakoneta. Tr. 338-339, 573. This property had been a part of a parcel of land
that Stinebaugh had previously purchased and then divided into two lots. Tr. 946,
971-972. These two lots sat in between Fairview Drive and South Street. Tr. 738.
However, the portion of South Street that was directly behind these lots was an
unimproved right-of-way. Tr. 532, 738. A trailer park was located on Fairview
Drive across the street from these two lots. Tr. 532, 736.
{¶6} The superintendent of zoning and engineering, Mary Ruck (“Ruck”),
testified that Andy Beane (“Beane”) was the technician from the Engineering
Department who processed Stinebaugh’s application for a building permit. Tr. 531.
Ruck testified that Beane told Stinebaugh that he would have to tie the house into a
public sewer line that ran along the other side of Fairview Drive and serviced the
Case No. 2-22-27
units in the trailer park.1 Tr. 532. To tie into this existing sewer line, Stinebaugh
would have had to either “bore under the street” and connect to the tap with a pipe
or “open cut” the street, lay the pipe, and repair the roadway. Tr. 545.
{¶7} Ruck testified that Stinebaugh “contacted our office and did not want
to tap into the Fairview line” across the street from the lots. Tr. 532. She stated that
Stinebaugh instead wanted the city to extend an existing public sewer line on the
improved portion of South Street into the unimproved right-of-way that was located
behind the house he had built. Tr. 532. Stinebaugh would then tap the house into
the extended public sewer line behind the property. Tr. 532-533. In contrast to the
more expensive process of tying the house into the sewer line across Fairview Drive,
Stinebaugh would have to provide for a $370.00 tap fee to connect the house to an
extended public sewer line behind the house. Tr. 545. Ruck testified that Beane
examined the property and concluded that the extension of the public sewer line on
South Street was feasible. Tr. 534.
{¶8} Stinebaugh testified that, contrary to Ruck’s testimony, Beane never
told him that he would have to tie into a public sewer line across the street in the
process of applying for the building permit. Tr. 948. He stated that, after the house
was framed, Ruck came to the site and told him that he would have to tap into a
sewer line across Fairview Drive. Tr. 948-949. Stinebaugh testified that, after he
1
At trial, a dispute existed as to whether the sewer line that serviced the mobile home park across the street
was public or private. Tr. 435, 568, 580-582, 736, 743, 950. Ex. 50.
Case No. 2-22-27
questioned whether he had to dig across the street, Ruck pointed out that a public
sewer line was located on South Street behind the lot and told him that she would
send Beane to the property to determine the feasibility of using that public sewer
line. Tr. 949-950.
{¶9} Scott testified that Stinebaugh then approached him and spoke about
having the city extend the public sewer line from the improved portion of South
Street and into the unimproved right-of-way behind 708 Fairview Drive. Tr. 339.
Scott testified about his response as follows:
I told Tom [Stinebaugh] I thought, you know, like any other case in
the City, the developer installs the sanitary sewer line, water line, and
then the City takes it over. It’s right in the codified ordinances of the
City where the developer is responsible for the installation of water
and sewer.
Tr. 339. Scott then testified that Stinebaugh “didn’t like [his] * * * answer.” [CITATION]
. He also explained that the safety service director would have to sign a purchase
order for such a project to move forward. [CITATION]
{¶10} Scott testified that, around this time, Stinebaugh indicated that he was
going to begin looking for a new person to serve as safety service director. [CITATION]
. Around two months after this conversation, Stinebaugh terminated Scott in
early July of 2018. [CITATION]
. Stinebaugh testified that he terminated Scott because
other department heads were complaining about him. [CITATION]
. He also stated that
Scott had begun “bad mouthing” him after their conversation about finding a new
safety service director. [CITATION]
Case No. 2-22-27
{¶11} Ruck testified that Stinebaugh “directed” her department “to put in the
sewer” line along the unimproved right-of-way. [CITATION]. She affirmed that she
believed that the city should not extend the public sewer line as the developer
typically provides for this cost. [CITATION]. Ruck testified that she reported to the
safety service director and the mayor. [CITATION]. She voiced her concerns with the
safety service director but “was told to do it.” [CITATION]. Ruck began the process of
installing the sewer line because she “was told by the Mayor to do it.” [CITATION]. She
added that she “did it because he was the Mayor. And he could fire you if he wants
to.” [CITATION].
{¶12} The Engineering Department then contacted Schaub Excavating to
complete this project. [CITATION]. The purchase order for this expenditure was signed
by Ruck, and the new safety service director, as well as by the city auditor. Ex. 24,
25. [CITATION]. The contractor was then directed to extend the public sewer line
completely along the unimproved right-of-way and to install roughly fourteen
different taps to accommodate future housing projects on the empty lots that are
located along this stretch of real estate. [CITATION]. See [CITATION].
{¶13} Ruck was asked why the city did not simply extend the public sewer
[SEGMENT 2]
line the “extra few feet” that was required to accommodate the house at 708
Fairview Drive. [CITATION]. She explained that extending only “a little section” of the
public sewer line might inhibit the effectiveness of further extensions down the
unimproved right-of-way to accommodate future housing builds on the other vacant
Case No. 2-22-27
lots. Tr. 562-563. For this reason, her office decided to extend the public sewer
line beyond what was necessary to service 708 Fairview Drive. Tr. 563.
{¶14} Schaub Excavating then laid roughly 750 feet of eight-inch pipe to
extend the South Street sewer line along the unimproved right-of-way. Tr. 539, 544.
After completing this project, Schaub Excavating submitted an invoice on October
5, 2018. Tr. 739. The total cost of this project was $13,234.00. Tr. 540, 737.
{¶15} On July 22, 2021, Stinebaugh was indicted on eight counts of having
an unlawful interest in a public contract in violation of R.C. 2921.42(A)(1), fourth-
degree felonies; eight counts of conflict of interest in violation of R.C. 102.03(D),
first-degree misdemeanors; and one count of theft in office in violation of R.C.
2921.41(A)(1), a third-degree felony.2 Doc. 1. On motion of the State, the trial
court dismissed three of the counts of having an unlawful interest in a public contract
and three of the counts of conflict of interest. Tr. 5. On October 24, 2022, a jury
trial on the remaining charges began.
{¶16} On October 29, 2022, the jury returned verdicts of guilty on three
counts of conflict of interest in violation of R.C. 102.03(D), first-degree
misdemeanors; one count of having an unlawful interest in a contract in violation of
R.C. 2921.42(A)(1), a fourth-degree felony; and one count of theft in office in
2
On appeal, Stinebaugh only challenges the felony convictions that relate to the extension of the public sewer
line. For this reason, we have only set forth the facts that describe the conduct that is relevant to these
charges.
Case No. 2-22-27
violation of R.C. 2921.41(A)(1), a fifth-degree felony.3 Doc. 120, 124. The jury
acquitted Stinebaugh of the remaining six charges. Doc. 120, 124. The trial court
released its judgment entry of sentencing on November 14, 2022. Doc. 120.
{¶17} Stinebaugh filed his notice of appeal on December 12, 2022. Doc.
127. On appeal, he raises the following three assignments of error:
First Assignment of Error
Stinebaugh’s fourth-degree felony conviction under R.C.
.42(A)(1) is erroneous as a matter of law on insufficiency
grounds because, at most, the evidence demonstrated he had an
interest in the benefits of the underlying contract, which is a first-
degree misdemeanor under R.C. 2921.42(A)(4).
Second Assignment of Error
Stinebaugh’s fifth-degree felony conviction under R.C.
.41(A)(1) is erroneous as a matter of law on insufficiency
grounds because the City of Wapakoneta has the authority to
install sewer lines in the public right-of-way and three
appropriate city officials—including the independently elected
city auditor—consented to the sewer line extension. Thus, no
predicate theft offense, which is necessarily distinct from having
an interest in the benefits of any sewer line, was proven.
Third Assignment of Error
The trial court plainly erred in admitting during the State’s case
in chief local Wapakoneta ordinances that do not apply to
Stinebaugh’s situation. Relatedly, appellant’s trial counsel
rendered ineffective assistance of counsel in handling this issue
and in failing to properly argue for acquittals under Criminal
Rule 29.
3
The jury did not come to an agreement as to the value of the property or services that was stolen. Doc. 115.
For this reason, the conviction was reduced from a third-degree felony to a fifth-degree felony. Doc. 124.
Case No. 2-22-27
Stinebaugh does not challenge the sufficiency of the evidence supporting his first-
degree misdemeanor convictions on appeal.
First Assignment of Error
{¶18} Stinebaugh asserts that his conviction for having an unlawful interest
in a public contract is not supported by sufficient evidence.
Legal Standard
{¶19} A challenge to the sufficiency of the evidence “addresses the question
of whether adequate evidence was produced for the case to be considered by the
trier of fact” and, therefore, whether the evidence can support the verdict. [CITATION]. Thus, appellate courts are “not to examine
whether the evidence presented should be believed but should rather ‘examine the
evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.’”
[CITATION], quoting [CITATION].
On appeal, the applicable standard of review ‘is whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found that the essential elements
of the crime were proven beyond a reasonable doubt.’
[CITATION], quoting [CITATION].
Case No. 2-22-27
{¶20} Ohio’s ethics law addresses public contracts in R.C. 2921.42. This
provision reads, in its relevant part, as follows:
(A) No public official shall knowingly do any of the following:
(1) Authorize, or employ the authority or influence of the public
official’s office to secure authorization of any public contract in which
the public official, a member of the public official’s family, or any of
the public official’s business associates has an interest;
***
(3) During the public official’s term of office or within one year
thereafter, occupy any position of profit in the prosecution of a public
contract authorized by the public official or by a legislative body,
commission, or board of which the public official was a member at
the time of authorization, unless the contract was let by competitive
bidding to the lowest and best bidder;
(4) Have an interest in the profits or benefits of a public contract
entered into by or for the use of the political subdivision or
governmental agency or instrumentality with which the public official
is connected;
***
(Emphasis added). A violation of R.C. 2921.42(A)(1) is a fourth-degree felony
while a violation of R.C. 2921.42(A)(3) or R.C. 2921.42(A)(4) is a first-degree
misdemeanor. R.C. 2921.42(E).
{¶21} Further, R.C. 102.03(D) contains one of Ohio’s conflicts of interest
laws and reads as follows:
No public official or employee shall use or authorize the use of the
authority or influence of office or employment to secure anything of
value or the promise or offer of anything of value that is of such a
Case No. 2-22-27
character as to manifest a substantial and improper influence upon the
public official or employee with respect to that person’s duties.
(Emphasis added.) A violation of R.C. 102.03(D) is a first-degree misdemeanor.
R.C. 102.99(B).
Legal Analysis
{¶22} In this appeal, the issue is not whether Stinebaugh acted appropriately
with regard to the extension of the public sanitary sewer line. Rather, the issue is
whether the State presented evidence at trial that establishes Stinebaugh’s conduct
met the specific elements of the offense defined in R.C. 2921.42(A)(1). To establish
a conviction for having an unlawful interest in a public contract in violation of R.C.
2921.42(A)(1), the State must prove that a “[1] public official * * * [2] knowingly
authorize[d] or employ[e]d the authority or influence of the public official’s office
[3] to secure authorization of any public contract [4] in which the public official, a
member of the public official’s family, or any of the public official’s business
associates [5] ha[d] an interest.” R.C. 2921.42(A)(1). OEC Adv. Op. [CITATION]. On appeal, Stinebaugh argues that the State failed to prove the fifth
element of this offense.4
{¶23} To support this assertion, Stinebaugh notes that the contract at issue
was between the city and Schaub Excavating. He points out that he was not a party
4
Since no evidence was presented that suggests a member of Stinebaugh’s family or one of his business
associates may have had a prohibited interest in the contract, we will limit our analysis to whether he had an
interest in the contract within the meaning of R.C. 2921.42(A)(1).
[SEGMENT 3]
Case No. 2-22-27
to the contract and was not affiliated with Schaub Excavating. Stinebaugh also
points out that R.C. 2921.42(A)(1) prohibits a public official from having “an
interest” in a public contract while R.C. 2921.42(A)(4) prohibits a public official
from “[h]av[ing] an interest in the profits or benefits of a public contract.” He argues
that this distinction is important as a violation of R.C. 2921.42(A)(1) is a felony and
a violation of R.C. 2921.42(A)(4) is a misdemeanor. Stinebaugh asserts that, “at
most, [he] * * * had an interest in [a] * * * conceivable benefit” of the contract.
(Emphasis sic.) Appellant’s Brief, 12.
{¶24} In interpreting R.C. 2921.42(A), courts have turned to the opinions of
the Ohio Ethics Commission (“OEC”) as a source of persuasive authority. [CITATION]. See [CITATION].
{¶25} In these opinions, the OEC has said that an “‘interest’ refers to a right
or claim * * *.” OEC, Adv. Op. 93-008 (May 21, 1993) (relying on several
dictionary definitions of this term). To be prohibited by R.C. 2921.42(A), an
interest “must be definite and direct and may be either pecuniary or fiduciary in
nature.” OEC, Adv. Op. 90-007 (May 14, 1990). See [CITATION]. “The determination of whether a public official or employee
has an ‘interest’ in a public contract entered into by a governmental entity depends
Case No. 2-22-27
upon the facts and circumstances of each particular situation.” OEC, Adv. Op. 90-
003 (Jan. 18, 1990).
{¶26} In Adv. Op. No. 92-013, the OEC considered whether a public official
had an interest in drainage and sidewalk improvements that were conducted as part
of a neighborhood revitalization program and that benefited a property that he
owned. OEC, Adv. Op. 92-013 (Aug. 14, 1992). The OEC began by determining
whether the public official had a prohibited interest under R.C. 2921.42(A), stating:
[i]n this instance, the consideration or benefit is not being provided
directly to the property owner and the property owner is not providing
the service to the political subdivision or performing the work under
the contract. The property owner does not have the same kind of
interest in a political subdivision’s public improvements as he does in
a loan, or grant, or tax abatement that is awarded directly to him. The
interest of a property owner who will benefit from an infrastructure
improvement made by or for the use of his political subdivision as part
of a neighborhood revitalization program is not direct for purposes of
R.C. 2921.42.
***
While it is undisputed that property owners in an area of the village
that will receive infrastructure improvements may benefit from the
infrastructure improvements * * * and may have an ‘indirect’ interest
in the public contract, no transaction exists between the village and
the affected property owners * * * which would indicate that the
property owners have a direct ‘interest’ in the public contract.
Case No. 2-22-27
Id.5 The OEC then concluded that the public official in the situation it was
examining did not have a prohibited interest under R.C. 2921.42(A)(1) and R.C.
2921.42(A)(4). However, the OEC went on to give the following guidance:
a public official may well be deemed to have an interest in the profits
or benefits [R.C. 2921.42(A)(4)] or occupy a position in the
prosecution of a public contract [R.C. 2921.42(A)(3)] in
circumstances where the benefit to the council member’s property is
selective, differential, or in disproportion to the benefit provided to
other property in the political subdivision or a portion thereof.
(Emphasis added.) Id. The OEC then proceeded to an analysis of R.C. 102.03(D),
which prohibits a public official from using his or her influence to “secure anything
of value.” The OEC stated that R.C. 102.03(D) “prohibits a public official from
participating in * * * matters which would provide a particular and definite
pecuniary benefit to property in which he has an interest.” [CITATION].
See also [CITATION].
{¶27} We turn now to the facts of the case presently before us. Since
Stinebaugh was charged under R.C. 2921.42(A)(1), the focus of our analysis will
be Stinebaugh’s relationship to the public contract at issue. As with the situation in
[CITATION], no evidence suggests Stinebaugh was a party to the contract,
5
The OEC also noted that situations may arise in which a public official does not receive consideration under
a contract but may still have an interest in the contract. The OEC gave the examples of a public official
acting as a subcontractor who performs work under the contract or a public official who receives a distributive
share of the proceeds paid through the contract. In these examples, the public official was “directly benefiting
from the contract.” [CITATION].
Case No. 2-22-27
received consideration through the contract, performed any work under the contract,
or had any other connection with the transaction between the city and Schaub
Excavating that could be considered direct to Stinebaugh. Thus, Stinebaugh had the
type of interest that a property owner has in a political subdivision’s infrastructure
improvements rather than the type of interest that a property owner has in a loan,
grant, or tax abatement received directly from a political subdivision.[CITATION]
{¶28} In evaluating infrastructure projects, the OEC distinguished between
infrastructure projects that provide a generalized benefit—such as a comprehensive
neighborhood revitalization program—and infrastructure projects that confer a
benefit to the public official that is “selective, differential, or in disproportion to the
benefit provided to other property in the political subdivision * * *.” [CITATION] In the case presently before us, the public sewer line
was extended along an unimproved right-of-way and fitted with roughly fourteen
taps. Tr. 576. These additional taps were installed for the purpose of benefiting any
future homebuilder that might construct a house on one of the vacant lots alongside
the extended public sewer line. Tr. 562-563.
{¶29} However, while others besides Stinebaugh would ostensibly reap the
benefits of this public sewer line extension project, this situation is distinct from the
[CITATION]
The sewer line was installed in October of 2018. Tr. 539, 739. At the time of installation, Stinebaugh
owned one parcel of land that sat alongside the extended sewer line. Tr. 622. He had owned two parcels of
land, but he built a house on one of these parcels and transferred the deed to the homebuyer in July of 2018.
Tr. 561, 621. Thus, at the time of the extension project, Stinebaugh was not the owner of the house that was
connected to the extended sewer line. Rather, his purchaser was the property owner by this time. Tr. 379.
Case No. 2-22-27
comprehensive neighborhood revitalization program described in [CITATION].
In fact, this situation bears some resemblance to the OEC’s example of selective,
differential, or disproportionate benefits. In that example, the public official
“owned a large tract of undeveloped land and was the only landowner in the political
subdivision to receive the improvements.” OEC, [CITATION].
{¶30} In this case, the primary objective of this project was apparently to
confer a benefit on the lot where Stinebaugh had constructed a house. At trial, Ruck
testified that another person requested the city to pay for the installation of a sewer
line in the same area as the house Stinebaugh had constructed but was denied. Tr.
583. The evidence in the record also indicates that the extension of this sewer line
to Stinebaugh’s home build was a departure from the customary practices governing
such projects in Wapakoneta.
{¶31} Even assuming that Stinebaugh received a selective, differential, or
disproportionate benefit from the sewer line extension, he would, under the
reasoning of the OEC, only “be deemed to have an interest in the profits or benefits
or occupy a position in the prosecution of a public contract * * *.” OEC, [CITATION]. An interest in the profits or benefits of a public contract
would implicate R.C. 2921.42(A)(4) while occupying a position in the prosecution
of a public contract would implicate R.C. 2921.42(A)(3). Further, in [CITATION],
the OEC also noted that a public official’s participation in a decision to approve
Case No. 2-22-27
[SEGMENT 4]
an infrastructure project under which he or she would realize a benefit could
constitute a conflict of interest that violates R.C. 102.03(D).7
{¶32} However, the OEC does not suggest that a selective, differential, or
disproportionate benefit in an infrastructure project would give a public official a
definite and direct interest in the contract as required by R.C. 2921.42(A)(1).
Rather, the OEC describes a public official with a selective, differential, or
disproportionate benefit as “hav[ing] a definite and direct interest in, and profit
from, the improvements.” [CITATION]. Thus, the public
official may come to have an interest in the improvements as the profits or benefits
of the public contract, but this does not mean that the public official has an interest
in the contract itself. Without such an interest in the contract, a defendant cannot
be found guilty of violating R.C. 2921.42(A)(1). If the State had charged
Stinebaugh with a violation of R.C. 2921.42(A)(3) or R.C. 2921.42(A)(4), a
different result may have been obtained. Since we do not have that case before us,
we do not decide that question.
{¶33} In summary, no evidence in the record establishes that Stinebaugh had
a right or claim under the contract that was both definite and direct. Thus, the State
failed to establish that he had a prohibited interest that falls within the meaning of
R.C. 2921.42(A)(1). Because the evidence does not establish an essential element
7
In this case, Stinebaugh was convicted of violating R.C. 102.03(D) as the result of his actions with regard
to the public sewer line extension project. This conviction is not challenged on appeal.
Case No. 2-22-27
of the charged offense, Stinebaugh’s conviction for having an unlawful interest in a
public contract in violation of R.C. 2921.42(A)(1) is reversed. Accordingly, the
first assignment of error is sustained.
Second Assignment of Error
{¶34} Stinebaugh argues that the predicate offense for his conviction for
theft in office is not supported by sufficient evidence.
Legal Standard
{¶35} We reincorporate the legal standard governing sufficiency-of-the-
evidence challenges as set forth under the first assignment of error. To establish a
conviction for theft in office in violation of R.C. 2921.41(A)(1), the State must
prove that a “[1] public official * * * [2] committ[ed] any theft offense, as defined
in” R.C. 2913.01(K), [3] and “use[d his or her] * * * office in aid of committing the
offense or assent[ed] to its use in the aid of committing the offense[.]” The
definition of theft offenses in R.C. 2913.01(K) includes violations of R.C.
2913.02(A)(1).8 To prove a defendant committed the offense of theft in violation
of R.C. 2913.02(A)(1), the State must establish that he or she, “[1] with purpose to
deprive the owner of property or services, * * * [2] knowingly [3] obtain[ed] or
exert[ed] control over either the property or services * * * [4] [w]ithout the consent
of the owner or person authorized to give consent[.]”
8
The jury instructions specified that R.C. 2913.02(A)(1) was the theft offense that Stinebaugh was alleged
to have committed as part of the theft in office charge. Tr. 1066. See also Tr. 991. See [CITATION].
====== End of Document ====== Case No. 2-22-27
Legal Analysis
{¶36} The State’s theory underlying this theft charge rests on three key
assertions. First, the State asserts that Wapakoneta Codified Ordinance 1248.07(a)
required Stinebaugh, as a subdivider, to bear the costs of extending the public sewer
line. Second, because this requirement is in an ordinance, the State asserts that “only
city council had the authority to consent” to an expenditure in which the city—rather
than the subdivider—bore the costs of extending a public sewer line. Appellant’s
Brief, 9. Third, since Stinebaugh did not seek city council’s approval for the use of
public funds on this infrastructure project, the State argues Stinebaugh committed
theft in violation of R.C. 2913.02(A)(1) by failing to obtain the consent of the “only”
entity authorized to consent to an expenditure that contravened an ordinance. Id.
Tr. 991, 1038, 1066. We will examine each of these three assertions to determine
whether the State proved that Stinebaugh violated R.C. 2913.02(A)(1).
{¶37} First, we examine whether the ordinance identified by the State
required Stinebaugh to bear the costs of extending the public sewer line. The
interpretation of an ordinance presents a question of law and is reviewed de novo
on appeal. [CITATION]. Under a de novo standard,
the appellate court conducts an independent review of the matter, giving no
Case No. 2-22-27
deference to the interpretation reached by the trial court.[CITATION]
{¶38} Further, “[o]ne important rule for interpretation of legislation is that in
a criminal case any ambiguity must be resolved in favor of the accused.” [CITATION] “Ordinances defining offenses
or penalties shall be strictly construed against the city and liberally construed in
favor of the accused.” [CITATION] Further, “ambiguity in a criminal statute is construed strictly so as to
apply the statute only to conduct that is clearly proscribed.” [CITATION]
{¶39} The State argues that Stinebaugh did not do what was required by
Wapakoneta Cod. Ord. 1248.07(a).11 This provision reads as follows:
Public Sanitary Sewers; Extensions. If a subdivision can be
reasonably served by the extension of an existing public sanitary
sewer, as determined by the Planning Commission, the subdivider or
developer shall provide a system of sanitary sewer mains and shall
provide lateral connections for each lot. Where a public sanitary
sewer is not reasonably accessible, the subdivider, the owner or the
9
The trial court did not provide the jury with any instructions regarding what legal requirements are contained
in Wapakoneta Cod. Ord. 1248.07(a).
10
We recognize that the provision identified by the State is not a criminal ordinance. See Wapakoneta Cod.
Ord. 606.04(a). However, the State is using this ordinance to define Stinebaugh’s conduct as constituting a
felonious theft offense in a criminal prosecution. For this reason, we will strictly construe any ambiguities
in these provisions in favor of the criminal defendant. [CITATION]
11
The State also introduced Wapakoneta Cod. Ord. 1244.04(b) at trial. Stinebaugh asserts that this provision
outlines inapplicable platting procedures and mentions developers rather than subdividers. This provision
describes what is necessary in the platting process after a “developer has constructed the required water and
sanitary sewer facilities * * *.” Wapakoneta Cod. Ord. 1244.04(b). Even if this provision were applicable,
what sanitary sewer facilities are “required” would still be defined in Wapakoneta Cod. Ord. 1248.07(a).
Case No. 2-22-27
developer may provide septic tanks for each lot, provided that the
septic tanks are installed in accordance with State and/or County
Board of Health requirements. Whenever main lines are installed,
sewer and water mains shall be extended to property lines of the
subdivision. Connections to public sanitary sewer lines shall be
subject to the approval of and according to the specifications of, the
Director of Public Service and Safety or the County Sanitary
Engineer, depending upon jurisdiction.[CITATION]
Three sets of words are used in this provision to describe the different components
of the sanitation infrastructure: (1) public sanitary sewer line; (2) sanitary sewer
mains or main lines; and (3) lateral connections.[CITATION]
{¶40} The language of this ordinance clearly requires a subdivider[CITATION] to
provide a system of “sanitary sewer mains” within the subdivision. This ordinance
also clearly requires a subdivider to provide “lateral connections” that integrate each
of the lots in the subdivision into the system of “sanitary sewer mains.” This
provision then indicates that “an existing public sewer line” is to be extended from
its location and connected to the system of “sanitary sewer mains” constructed
inside the subdivision. However, this ordinance does not state who is responsible
for “the extension of [the] * * * existing public sanitary sewer.” Wapakoneta Cod.
Ord. 1248.07(a).
[CITATION] states that the planning commission is to be comprised of the mayor, the
director of public service and safety, and three citizens of the city who are appointed by the mayor.[CITATION] states that the planning commission shall also serve as the platting commission.
[CITATION]
Part Twelve of the ordinances does not provide any definitions for these terms. Wapakoneta Cod. Ord.
1040.02(nn) does define a “public sewer” as “a sewer owned and operated by a public authority.”
[CITATION]
Wapakoneta Codified Ordinances 1240.09(s) and 1240.09(t) provide definitions for “subdivider” and
“subdivision.” On appeal, [CITATION] asserts that he does not fall within these definitions.[CITATION] At trial, he did admit that he subdivided a parcel of land into two lots at 708 and 710 Fairview Drive.
[CITATION] We need not consider this argument to dispose of this case.
[SEGMENT 5]
Case No. 2-22-27
{¶41} The language of this provision does not state that the subidivider is
responsible for extending the existing public sanitary sewer line from a location
outside of the subdivision to the property line of the subdivision. Similarly, this
provision also does not hold the subdivider responsible for the costs of extending an
existing public sanitary sewer line in such a situation. While this ordinance
expressly requires the subdivider to provide “lateral connections” and a “system of
sanitary sewer mains,” it nowhere states that the subdivider is required to provide
for the extension of the “public sanitary sewer line” to the subdivision.
{¶42} Further, under the wording of this provision, the subdivider’s
responsibilities do not appear to extend beyond the property lines of the subdivision.
The ordinance at issue requires the mains in the sanitary sewer system to be run to
the “property lines of the subdivision.” [CITATION]. The requirement appears to exist to facilitate a connection at the property line of the
subdivision between the sanitary sewer mains installed within the subdivision and
an existing public sanitary sewer line that lies outside of the subdivision. Since the
subdivider is made responsible for providing the system of sanitary sewer mains
that connect the lots inside the subdivision, the subdivider would apparently be the
party responsible for running the requisite sanitary sewer mains to the inside
property lines of the subdivision.
{¶43} Importantly, this provision only requires the requisite sewer mains in
the sanitary system within the subdivision to be run to the property lines of the
Case No. 2-22-27
subdivision. Thus, the subdivider is not, by this ordinance, required to extend a
sanitary sewer main beyond the property lines of the subdivision and to the location
of any existing public sanitary sewer line that lies outside of the subdivision. This
provision also contains no language that requires a subdivider to extend the existing
public sanitary sewer line from its location outside the subdivision to the property
line of the subdivision. For these reasons, we conclude that, contrary to the State’s
first assertion, Wapakoneta Cod. Ord. 1248.07(a) does not require a subdivider to
provide for the extension of a public sanitary sewer line.
{¶44} Turning to the facts of this case, the record contains no indication that
Stinebaugh failed to provide the “sanitary sewer mains” or “lateral connections” for
the two lots comprising his “subdivision.” [CITATION]. Given the small size
of this subdivision, the sanitary sewer system was minimal and appears only to have
involved running a lateral connection from the house to where the public sewer line
had been extended along the city’s unimproved right-of-way.
{¶45} Ruck testified at trial that the public sanitary sewer line extension was
entirely located on the unimproved right-of-way that was owned by the city and did
not cross into the property at 708 Fairview Drive. [CITATION]. Thus, even
assuming that he qualifies as a subdivider, Stinebaugh appears to have covered the
costs that Wapakoneta Cod. Ord. 1248.07(a) required him to bear. Since this
provision did not require the subdivider to bear the costs of extending the public
Case No. 2-22-27
sanitary sewer line, the State did not establish that Stinebaugh failed to provide what
was expressly required by the identified ordinance.
{¶46} Before turning to the State’s second assertion, we note that the State
also introduced testimony that described the local, customary practices regarding
the extension of public sewer lines to subdivisions. Tr. 339, 352, 366, 430, 506,
511, 534-536, 546, 583. But see Tr. 379, 383. This testimony indicated that the
developer or subdivider typically provided for the extension of the public sewer line
to the subdivision. Tr. 339. Once completed, the extended public sewer line would
then be turned over to the city. Tr. 339. However, as discussed in our prior analysis,
the legislative body of the municipality did not make this customary practice
mandatory in the text of Wapakoneta Cod. Ord. 1248.07(a).15
{¶47} In closing arguments the State referred to the previous instances in
which this customary practice was followed as “the common law * * *.” Tr. 1038.
But this custom was not legally binding. Acting in contravention of custom is not
equivalent to acting in contravention of the law.
All crimes in Ohio must be based upon either legislative enactments
of the state or on ordinances enacted pursuant to the authority granted
to municipal corporations and an act to be punishable as a crime must
be specifically embraced within the terms of some enactment.
Broadly defined, a crime is an act prohibited by a legislative
enactment for the violation of which a penalty is provided.
15
Scott indicated at trial that he believed that the municipal ordinances required a subdivider to cover the
costs of a public sewer line extension. Tr. 339. However, we review the text of an ordinance de novo and,
in the context of this criminal case, do not conclude that Wapakoneta Cod. Ord. 1248.07(a) clearly requires
a subdivder to bear this cost. [CITATION], supra, at ¶ 9.
Case No. 2-22-27
[CITATION] In
determining whether city council’s consent was required in this case, custom is not
a substitute for the law. This Court will not affirm a conviction if the State only
established that the city council did not consent to a deviation from a local custom.
The State had to establish that Stinebaugh violated a binding law.
{¶48} We turn now to examining the State’s second assertion that only city
council could consent to the expenditure at issue. We begin this analysis by looking
at what authority the municipal ordinances gave to the safety service director.
Wapakoneta Cod. Ord. 208.03 contains the following provision:
The Director of Public Service and Safety is hereby authorized to
execute public contracts for the purchase of supplies, materials or
labor as provided in Ohio R.C. 735.05.
The version of R.C. 735.0516 that was in effect at the time of the alleged offenses
reads, in its relevant part, as follows:
The director of public service may make any contract, purchase
supplies or material, or provide labor for any work under the
supervision of the department of public service involving not more
than fifty thousand dollars. When an expenditure within the
department, other than the compensation of persons employed in the
department, exceeds fifty thousand dollars, the expenditure shall first
be authorized and directed by ordinance of the city legislative
authority. * * *
16
This language is from a provision that was passed in Am. Sub. H.B. 509 and was effective on September
28, 2012. Further, Am. Sub. H.B. 33 amended this provision and took effect on October 3, 2023.
Case No. 2-22-27
(Emphasis added.) These provisions specifically authorized the safety service
director to expend a certain amount of money “for any work under the supervision
of the department of public service.” R.C. 735.05.
{¶49} In turn, Wapakoneta Cod. Ord. 242.03(a)(1)-(2) describes the
responsibilities under the supervision of the safety service director as follows:
(a) Public Service Duties.
(1) The Director of Public Service and Safety shall manage and
supervise public works and undertakings of the City, except as
otherwise provided by law.
(2) The Director shall supervise the improvement and repair of streets,
avenues, alleys, lands, lanes, squares, wharves, docks, landings,
market houses, bridges, viaducts, aqueducts, sidewalks, playgrounds,
sewers, drains, ditches, culverts, ship channels, streams and
watercourses, the lighting, sprinkling and cleaning of public places
and the construction of public improvements and public works, except
as otherwise provided by law.
See also [CITATION]. As previously noted, Wapakoneta Cod. Ord. 1248.07(a) does
not expressly require the subdivider to cover the costs of extending a public sewer
line and does not forbid the city from bearing the costs of extending an existing
public sewer line.
{¶50} Rather, the wording of Wapakoneta Cod. Ord. 1248.07(a) leaves a
degree of latitude in the arrangements that can be made between the city and the
subdivider regarding the extension of existing public sewer lines. In the language
used, the legislative body does not evince an intention to criminalize or prohibit an
arrangement in which the city covers the costs of extending a public sewer line while
Case No. 2-22-27
the subdivider provides for the sanitary sewer system within the boundaries of the
subdivision.[CITATION] Since such an arrangement is not prohibited, Wapakoneta Cod. Ord.
208.03 and R.C. 735.05 gives the safety service director the authority to approve an
expenditure of up to $50,000.00 “for any work under the supervision of the
department of public service.” R.C. 735.05.
[SEGMENT 6]
{¶51} Turning to the facts of the case before us, the contract between the city
and Schaub Excavating was just over $13,000.00. Tr. 540. The evidence at trial
clearly establishes that the safety service director signed and approved the purchase
order for this extension project. Ex. 25. Further, the safety service director
apparently exercised the authority given to him under Wapakoneta Cod. Ord. 208.03
because the project he approved extended the public sewer line far beyond what was
necessary to service the house that Stinebaugh had built. The public sewer line
extension had roughly fourteen taps that were put in place to accommodate future
builders who might construct houses on the other vacant lots along this unimproved
right-of-way. Tr. 562-563, 576.
{¶52} The municipal ordinances do not suggest that the safety service
director needed the consent of the city council to approve the extension of the public
sewer line and the installation of these additional taps. Those who approved the
[CITATION]
Case No. 2-22-27
extension of the public sewer line beyond Stinebaugh’s house were not alleged to
have committed a theft offense because they authorized this expenditure without a
subdivider or developer paying for this portion of the public sewer line.18 Rather,
Wapakoneta Cod. Ord. 208.03 and R.C. 735.05 indicate that the safety service
director had the authority to install these additional taps and extend the sewer line
beyond what was necessary to simply service the house that Stinebaugh had built.
{¶53} In arguing that only city council could consent to the expenditure of
funds for a public sewer line extension project, the State does not address the
authority conferred on the safety service director by Wapakoneta Cod. Ord. 208.03
or R.C. 735.05 in its brief. Rather, the State simply points out that Scott was
terminated as safety service director several months after he told Stinebaugh that he
did not believe it was proper for the city to undertake the extension project. Tr. 342.
{¶54} Ruck testified that her boss, the new safety service director, instructed
her to move forward with the extension project. Tr. 538, 553. She then testified
that, while she did not agree with this decision, she acquiesced because the mayor
“could fire you if he wants to.” Tr. 538. Based on this testimony, the State asserts
that “there was no consent given” and that this situation is like “a robber claiming
the victim consented to giving him money without mentioning he was holding a
gun.” Appellant’s Brief, 10.
18
We note that Ruck testified that the city never attempted to bill Stinebaugh for this expenditure. Tr. 575.
Case No. 2-22-27
{¶55} As an initial matter, we note that, while Ruck signed and submitted
the purchase order to the safety service director, the testimony at trial does not
establish that she was the person ultimately authorized to give consent to this
expenditure within the meaning of R.C. 2913.02(A)(1). Tr. 341, 506, 538-541, 566-
567. Since the State did not call the new safety service director to testify, the
evidence produced at trial does not contain testimony about the factors that
influenced the decision-making process of the person who was authorized to consent
to the expenditure of these funds.[CITATION]
{¶56} We also note that the State’s line of argument suggests that pursuing
a prosecution pursuant to R.C. 2913.02(A)(4) or R.C. 2913.02(A)(5) may have been
more appropriate than pursuing one under R.C. 2913.02(A)(1). The provision
defining theft reads as follows:
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the
property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
(2) Beyond the scope of the express or implied consent of the owner
or person authorized to give consent;
(3) By deception;
19
Stinebaugh contends that the city auditor’s signature on the purchase order with Schaub Excavating
constituted approval of the sewer line extension project by a disinterested elected city official. However,
there is nothing in the record indicating the city auditor had independent authority to approve or disapprove
city projects. On the contrary, the city auditor’s signature on the purchase order merely indicated there were
funds available to pay the contract price. This is evidenced by the notation juxtaposed to the city auditor’s
signature on the purchase order. Ex. 25.
Case No. 2-22-27
(4) By threat;
(5) By intimidation;
(Emphasis added). R.C. 2913.02(A). The five subsections are “mutually exclusive”
and are to be “read in the disjunctive.”20 29B Ohio Jur.3d, Criminal Law, § 781
(2024), quoting [CITATION], at the
syllabus. Further, a “threat” has been defined as
[a] communicated intent to inflict harm or loss on another * * *,
[especially] one that might diminish a person’s freedom to act
voluntarily or with lawful consent; a declaration, express or implied,
of an intent to inflict loss or pain on another[.]
[CITATION], quoting Black’s Law Dictionary
(11th Ed. 2019). See also Ohio Jury Instructions, CR § 513.02 (Rev. Jan. 9, 2016).
Similarly, “intimidation” has been defined as the “act of frightening, scaring, or
bullying.” Id.
{¶57} But in this case, the State sought to produce evidence that was directed
at establishing a violation of R.C. 2913.02(A)(1) and ultimately failed to establish
that this expenditure was not approved by a person authorized to give consent. If
the State had built a case that was aimed at establishing a violation of R.C.
2913.02(A)(4) or R.C. 2913.02(A)(5), a different result may have been obtained.
20
This does not mean that the State was limited to pursuing a conviction under only one of the subsections
in R.C. 2913.02(A). The jury could have been presented with instructions on multiple subsections. [CITATION]
, at ¶ 34. But in this case, the jury was only instructed on R.C. 2913.02(A)(1). Tr. 1066. [CITATION]
, at ¶ 23 [CITATION], at *2.
Case No. 2-22-27
[CITATION] Since we do not have that
case before us, we do not decide that question. [CITATION]
{¶58} In short, Wapakoneta Cod. Ord. 1248.07(a) does not prohibit an
arrangement in which the city—rather than the subdivider—bears the cost of
extending a public sewer line to a subdivision while Wapakoneta Cod. Ord. 208.03
authorizes the safety service director to consent to expenditures of up to $50,000.00
“for any work under the supervision of the department of public service.” R.C.
735.05. Given these provisions, the State has failed to establish its second assertion
that “only city council had the authority to consent” to the expenditure of funds for
the extension of the public sewer line. Appellant’s Brief, 9.
{¶59} We turn to the State’s third assertion that Stinebaugh committed theft
in violation of R.C. 2913.02(A)(1) by failing to obtain the consent that only city
council could provide to an expenditure that conflicted with the requirements of an
ordinance. However, in examining the State’s first assertion, we concluded that
Wapakoneta Cod. Ord. 1248.07(a) did not require a subdivider to bear the costs of
extending the public sewer line. Thus, the State did not establish that this
expenditure was made in contravention of an ordinance
{¶60} Further, in examining the State’s second assertion, we concluded that
Wapakoneta Cod. Ord. 208.03 authorized the safety service director to expend up
to $50,000.00 “for any work under the supervision of the department of public
service.” R.C. 735.05. Since the expenditure at issue was approved by the safety
Case No. 2-22-27
service director, this expenditure was approved by a person authorized to give
consent. For this reason, the State has failed to establish that this expenditure was
made “without the consent of the owner or person authorized to give consent[.]”
R.C. 2913.02(A)(1). Because the State failed to establish the first two assertions,
the third assertion—that Stinebaugh violated R.C. 2913.02(A)(1) by not obtaining
the consent of city council—must also fail.
{¶61} In conclusion, the jury trial proceeded under R.C. 2913.02(A)(1), and
[SEGMENT 7]
the State failed to prove that Stinebaugh violated that provision. Tr. 1066. [CITATION] Since the State failed to establish an
element of the predicate offense of theft in violation of R.C. 2913.02(A)(1),
Stinebaugh’s conviction for theft in public office in violation of R.C. 2921.41(A)(1)
is not supported by sufficient evidence. While his conviction for theft in public
office is reversed, he still remains convicted of having a conflict of interest in
violation of R.C. 102.03(D) for his actions with regard to the extension of the public
sewer line. The second assignment of error is sustained.
Third Assignment of Error
{¶62} Stinebaugh argues that defense counsel was ineffective for failing to
object to the admission of several local municipal ordinances at trial and for failing
to raise adequate arguments in support of the Crim.R. 29 motions.
Case No. 2-22-27
Legal Standard
{¶63} Ohio law presumes that the representation provided by a licensed
attorney is competent. [CITATION], ¶ 53 (3d Dist.). For this
reason, the burden of establishing an ineffective assistance of counsel claim rests on
the appellant. [CITATION], ¶ 39 (3d Dist.). The appellant
must establish (1) that trial counsel’s performance was deficient and (2) that such
performance prejudiced the Defense. [CITATION], ¶ 24 (3d
Dist.).
{¶64} To establish deficient performance, the appellant must demonstrate
that trial counsel’s representation was not objectively reasonable and made errors
of such seriousness that he or she was not functioning as the counsel guaranteed by
the Constitution. [CITATION], ¶ 16. Matters that fall within the
realm of debatable trial tactics and strategies are generally insufficient to establish
deficient performance. [CITATION], ¶ 55 (3d Dist.). To
establish prejudice, the appellant must demonstrate that, in the absence of counsel’s
error, a reasonable probability exists that the outcome of the proceeding would have
been different. [CITATION], ¶ 122 (3d Dist.).
Legal Analysis
{¶65} Stinebaugh raises two arguments to establish that he was deprived of
his right to the effective assistance of counsel. First, he argues that trial counsel
should have challenged the admission of several provisions from the Wapakoneta
Case No. 2-22-27
Codified Ordinances that addressed the extension of public sewer lines and the
installation of a sanitary sewer system in a subdivision. Stinebaugh asserts that
these provisions were irrelevant. As an initial matter, the decision not to object falls
within the realm of trial strategy and does not generally constitute deficient
performance. [CITATION]
{¶66} Further, the State introduced an abundance of testimony at trial that
described the customary responsibilities of subdividers regarding the extension of
existing public sewer lines. Tr. 339. But when properly construed, the text of
Wapakoneta Cod. Ord. 1248.07(a) does not make this customary practice
mandatory. Thus, the text of this ordinance provides one of Stinebaugh’s strongest
rebuttals to the testimony about the local practices in the City of Wapakoneta.
Accordingly, we conclude that the failure to object to the admission of these
ordinances should be classed as a matter of trial strategy. Given the abundant
testimony about the customary practices surrounding the extension of public sewer
lines, we also do not conclude that the absence of the written ordinances at trial
would have made a difference in the outcome of this proceeding.
{¶67} Stinebaugh also argues that the admission of this local ordinance
constituted plain error. However, “the prejudice standards for plain-error and
ineffective-assistance-of-counsel claims are the same[.]” [CITATION] Since Stinebaugh failed to establish the prejudice under
the standard for ineffective assistance of counsel claims, he cannot establish
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prejudice under the plain error standard. Accordingly, his arguments under the plain
error standard are without merit.
{¶68} Second, Stinebaugh argues that defense counsel was ineffective for
failing to raise better arguments in support of the Crim.R. 29 motions that were
made at trial. In this case, defense counsel made a Crim.R. 29 motion as to each of
the charges against Stinebaugh at the close of the State’s case-in-chief and then
renewed these motions for acquittal when the Defense rested. Tr. 656-657, 659,
988. When making these motions, defense counsel raised specific arguments for
some but not all of the eleven charges against Stinebaugh. Tr. 656-659.
{¶69} On appeal, Stinebaugh “directs us to no authority requiring counsel to
offer or explain his reasons for making a Crim.R. 29 motion for acquittal.” [CITATION], ¶ 27 (9th Dist.). The decision to “argue the merits [of a
Crim.R. 29 motion] broadly as opposed to making specific arguments relative to
each and every count [in the indictment] is a matter of sound trial strategy.” [CITATION], ¶ 80 (8th Dist.). Thus, the fact that appellate counsel would
have argued the Crim.R. 29 motion differently does not mean that trial counsel’s
performance was deficient. See also [CITATION], ¶ 18 (5th
Dist.); [CITATION], ¶ 20 (11th Dist.); [CITATION], ¶ 44 (12th Dist.).
{¶70} Further, the trial court denied the Crim.R. 29 motions that trial counsel
made as to all eleven charges against Stinebaugh. On appeal, Stinebaugh did not
Case No. 2-22-27
raise any argument establishing that this ruling would have been different had trial
counsel elaborated on his arguments for the Crim.R. 29 motion. Since he cannot
demonstrate prejudice, this second argument is without merit. In conclusion,
Stinebaugh has failed to carry the burden of establishing his ineffective assistance
of counsel claims. Accordingly, the third assignment of error is overruled.
Conclusion
{¶71} Having found no error prejudicial to the appellant in the particulars
assigned and argued in the third assignment of error, the judgment of the Auglaize
County Court of Common Pleas is affirmed in part. Having found error prejudicial
to the appellant in the particulars assigned and argued in the first and second
assignments of error, the judgment of the Auglaize County Court of Common Pleas
is reversed in part.
{¶72} While his three convictions for conflict of interest in violation of R.C.
102.03(D) are unaffected by this decision, we vacate Stinebaugh’s convictions for
having an unlawful interest in a public contract in violation of R.C. 2921.42(A)(1)
and theft in public office in violation of R.C. 2921.41(A)(1). This cause is remanded
to the trial court for further proceedings consistent with this opinion.
Judgment Affirmed in Part
Reversed in Part
And Cause Remanded
MILLER, J., concurs.
Case No. 2-22-27
WALDICK, J., concurs in part and dissents in part.
{¶73} I concur with the majority regarding its conclusions as to the first and
third assignments of error. However, I respectfully dissent from the majority’s
assessment of the second assignment of error. In sustaining the second assignment
of error, the majority’s holding is contradictory to the evidence presented at trial and
to the plain language of the ordinance at issue, which required Stinebaugh to fund
the extension of the sanitary sewer main that, once installed, provided sewer service
to the real property he owned and developed. I would analyze and resolve the
second assignment of error as follows.
Second Assignment of Error
Stinebaugh’s fifth-degree felony conviction under R.C.
2921.41(A)(1) is erroneous as a matter of law on insufficiency
grounds because the City of Wapakoneta has the authority to
install sewer lines in the public right-of-way and three
appropriate city officials – including the independently elected
city auditor – consented to the sewer line extension. Thus, no
predicate theft offense, which is necessarily distinct from having
an interest in the benefits of any sewer line, was proven.
{¶74} At issue in the second assignment of error is Stinebaugh’s conviction
and sentence on Count 17 of the indictment for Theft in Office in violation of R.C.
2921.41(A)(1). Stinebaugh asserts that the evidence presented as to Count 17 was
insufficient to support his conviction for Theft in Office, specifically as to the
predicate theft offense necessary to prove the crime at issue.
Case No. 2-22-27
{¶75} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. [CITATION]. Consequently, “[t]he relevant inquiry
is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we
neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both
[SEGMENT 8]
are functions reserved for the trier of fact.” [CITATION].
{¶76} R.C. 2921.41 defines the offense of Theft in Office, and provides in
relevant part:
(A) No public official or party official shall commit any theft offense,
as defined in division (K) of section 2913.01 of the Revised Code,
when * * * the following applies:
(1) The offender uses the offender’s office in aid of committing the
offense or permits or assents to its use in aid of committing the
offense[.]
{¶77} In this case, the predicate “theft offense” for the Theft in Office charge
was Theft in violation of R.C. 2913.02. R.C. 2913.02 defines the crime of theft, and
provides:
Case No. 2-22-27
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the
property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
(2) Beyond the scope of the express or implied consent of the owner
or person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
{¶78} At trial in this matter, the State of Ohio’s theory of the case as to Count
17 was that Stinebaugh had committed Theft in violation of R.C. 2913.02(A)(1). It
was upon that subsection of the theft statute that the jury was instructed and
therefore, ultimately, found Stinebaugh to be guilty. Accordingly, Stinebaugh’s
challenge to his Theft in Office conviction on a sufficiency-of-the-evidence basis
must be analyzed by reviewing the evidence in the record offered by the prosecution
to support its theory that Stinebaugh was guilty of Theft in violation of R.C.
2913.02(A)(1).
{¶79} In that respect, the evidence presented at trial was that in 2018,
Stinebaugh contracted to build a house for a third party on a lot owned by
Stinebaugh at 708 Fairview Drive in Wapakoneta. That lot was one of two
contiguous lots that Stinebaugh owned on Fairview Drive, after having previously
done a lot split of a single larger lot that he had purchased for development purposes.
Case No. 2-22-27
At some point during the construction process of the house at 708 Fairview,
Stinebaugh realized that there was no public sewer line in place to provide sewer
service to that property.
{¶80} Prosecution witness Chad Scott began serving as the City of
Wapakoneta’s Safety Service Director in January of 2016, when he was hired by
Stinebaugh in his new capacity as mayor. Scott held that position for two and a half
years. As Safety Service Director, Scott was responsible for overseeing the police
and fire departments, as well as the city’s engineering, water, and sewer
departments. In that position, Scott reported directly to the mayor.
{¶81} While working in that capacity, Scott became aware that Stinebaugh
was building a spec home on a property he owned on Fairview and that there was
no sewer available for the house to tie into. Stinebaugh approached Scott about the
sewer issue. In that conversation, Stinebaugh said he was going to have the city run
a sewer line to that property. In response, Scott told Stinebaugh that in the City of
Wapakoneta, the developer installs the sanitary sewer line and then the city takes it
over, as set forth in the codified ordinances of Wapakoneta, which provide that the
developer is responsible for the installation of water and sewer.
{¶82} Scott testified that Stinebaugh did not like that answer, and the two
had no further conversation about the matter. Just a few weeks after that
conversation about the sewer issue, Scott was told by Stinebaugh that he was
looking for someone to replace Scott as Safety Service Director. In early July of
Case No. 2-22-27
2018, which was approximately two months after the conversation about the sewer
issue, Stinebaugh texted Scott, who was on vacation at the time, and told him he
was fired. While Scott’s employment with Wapakoneta terminated at that time, he
learned a few months after his departure that a sewer line had been installed by the
city to serve Stinebaugh’s property.
{¶83} Scott testified that, in instances such as the one at issue here, if one
follows the Wapakoneta codified ordinances, there is a permitting process for
developers to provide the city with engineering plans and other such information
about what they plan to do when installing a sewer line. Scott also identified State’s
Exhibit 28 as a copy of Wapakoneta Codified Ordinance 1244.04, which addresses
platting procedure.
{¶84} Section 1244.04 provides, in relevant part:
(a) Together with the final plat, the subdivider shall submit to the
Planning Commission two copies of the complete set of construction
drawings for public improvements as provided in Chapter 1248.
These construction drawings shall include a cover sheet, street and
utility improvement plans and grading and drainage plans for the
subdivision. In addition, the subdivider shall be required to submit
storm drainage calculations and a drainage area map showing
individual and cumulative drainage areas tributary to each point of
concentration.
(b) Following the City’s formal approval of the final plat and
accompanying detailed construction drawings as approved by the
Director of Public Service and Safety, the developer shall be required
to submit one reproducible copy of such construction drawings. Once
the developer has constructed the required water and sanitary sewer
facilities, he or she shall be required to submit to the City a set of
Case No. 2-22-27
reproducible prints showing the as-built locations of the water, storm
and sanitary sewer facilities, easements and any unusual conditions.
Scott also identified State’s Exhibit 29, which was a copy of section 1248.07
of the Wapakoneta Codified Ordinances.
{¶85} Section 1248.07 provides in relevant part:
(a) Public Sanitary Sewers; Extensions. If a subdivision can be
reasonably served by the extension of an existing public sanitary
sewer, as determined by the Planning Commission, the subdivider or
developer shall provide a system of sanitary sewer mains and shall
provide lateral connections for each lot. Where a public sanitary
sewer is not reasonably accessible, the subdivider, the owner or the
developer may provide septic tanks for each lot, provided that the
septic tanks are installed in accordance with State and/or County
Board of Health requirements. Whenever main lines are installed,
sewer and water mains shall be extended to property lines of the
subdivision. Connections to public sanitary sewer lines shall be
subject to the approval of and according to the specifications of, the
Director of Public Service and Safety or the County Sanitary
Engineer, depending upon jurisdiction.
{¶86} Scott testified that both of those ordinances were parts of
Wapakoneta’s city code requiring a developer to construct and pay for a sewer main.
Scott also confirmed that, during his employment with the City of Wapakoneta, it
was the practice there that the developer of a property would pay for the sewer main
and Scott was aware of no time that a developer did not pay for a sewer main, other
than the incident involving Stinebaugh.
{¶87} State’s witness William “Whitey” Thomas served as the Supervisor of
the Street Department, after having been appointed to that position by Stinebaugh
in his capacity as mayor. Thomas testified that Stinebaugh approached him about
Case No. 2-22-27
the lack of a sewer line to the property on Fairview where Stinebaugh was building
a house. Stinebaugh had discovered that there was no sewer access unless he were
to run a line across the road and tie into the sewer utilized by the mobile home park
across the street.
{¶88} In that conversation, Thomas told Stinebaugh that running a sewer line
for his property across to the mobile home park should not be done because Thomas
believed the mobile home park had a private system and, also, to do so would be
inconvenient and expensive for Stinebaugh. In response, Stinebaugh then asked if
it was feasible to run a sewer line through a right of way owned by the city to the
rear of Stinebaugh’s property on Fairview. Thomas told Stinebaugh that the
engineering department would have to get involved, and then an excavating
company would perform the actual installation, both of which were subsequently
done after Stinebaugh told Thomas that “we need to get a sewer in there.” (Tr., 366).
{¶89} Thomas indicated that he worked to get the sewer extended to
Stinebaugh’s property because of Stinebaugh saying that is what needed to be done.
Ultimately, Stinebaugh then tied into that sewer line extension for the house he was
building for his private client. Thomas testified that had the city not paid to run the
several hundred feet of extension necessary to reach Stinebaugh’s property,
[SEGMENT 9]
Steinbaugh would have had to pay for the extension himself. When asked how such
sewer projects work, Thomas testified that, as a rule, “[a]nybody that would develop
Case No. 2-22-27
a property with a lot of houses, they could come in and put the sewer line in, the
water line in, pave it, and then we took over the utilities.” (Id.).
{¶90} Prosecution witness David Schlenker is a Wapakoneta native and
owner of Schlenker Developments, a business that focuses on residential lot
development, construction, and residential and commercial real estate management.
Schlenker was acquainted with Stinebaugh as a result of both of them living in the
same small town.
{¶91} At some point in 2018, Schlenker learned that Stinebaugh was
building a home on Fairview, as a result of that being mentioned to Schlenker by
Mike Schaub of Schaub Excavating, who was doing some work for Schlenker at the
time. One day, Schlenker dropped off some paperwork to Schaub near the location
of the property upon which Stinebaugh was building the house on Fairview, where
Schaub was working on an extension of a main sanitary sewer line. At that time,
Schaub mentioned that he was extending the sewer line at the city’s direction, and
that the city was paying for it. Schlenker found that to be unusual because, in his
29 years of experience in residential development in Wapakoneta, mainline sanitary
sewer extensions were always paid for by the developer.
{¶92} As a result, Schlenker asked Stinebaugh about the sewer project at a
later time, and Stinebaugh said the decision to extend the sewer line had been made
by Mary Ruck, who was the Superintendent of the City Engineering Department.
Following cross-examination, when defense counsel attempted to make a distinction
Case No. 2-22-27
between developers of larger subdivisions and a person building a single home,
Schlenker testified on redirect-examination that he was not aware of the city paying
for a sewer line to go into any residential property in Wapakoneta.
{¶93} Prosecution witness Dennis Faller served as the City Law Director for
Wapakoneta for over thirty-nine years, from June of 1980 until December 31, 2019.
Faller testified that he was not aware of the sewer line having been run to
Stinebaugh’s property until after Stinebaugh was indicted.
{¶94} On the witness stand, Faller was asked what the proper legal procedure
would be if a city ordinance required a developer to pay for a main sewer line but
the developer was hoping to get the city to cover the cost. Faller answered, “Well,
if there’s legislation, council is the legislative body, so if there is legislation that
dictates a result, then City Council would be the one that would ultimately say okay,
we’re not, – we’re gonna [sic] change this or we’re gonna [sic] make an exemption
for that situation.” (Tr., 481).
{¶95} Faller was also asked what the proper procedure would be if it was the
common practice for a developer or person building a house to pay for the main
sewer line going to the property and the builder wanted the city to pay for the line
instead. Faller answered, “Typically, most people, in my experience as being Law
Director, when those things would come up, most peoples’ first contact might be
with our Engineering Department. And then, you know, the Engineering
Department would look at the situation and if it was something that was outside
Case No. 2-22-27
what is the normal course of events, they wouldn’t be the arbiter on that. And then
if it would be presented to Council again, full council, once something’s presented
to them, my experience is if it’s something like that, they would generally then
assign it to a committee who would have a meeting and meet with the people,
discuss it, do some research and then make a recommendation in regard to that. Our
department heads, over the years, were very conscientious about, you know, what
their role was and what was expected of them in regard to following procedures in
normal courses of business.” (Tr. 482-483).
{¶96} Prosecution witness Mary Ruck worked in the City of Wapakoneta’s
Engineering Department for over thirty years before retiring in 2022. Prior to
Stinebaugh taking office as mayor, Ruck had been promoted to the position of
Superintendent of Engineering and Zoning, in which job she oversaw the entire
engineering department.
{¶97} Ruck testified that she became aware that Stinebaugh was developing
a property on Fairview after he submitted a building permit to her office for the
house he wished to build. As part of the permit process, Stinebaugh was instructed
by Ruck’s department to tap into the public sanitary sewer line that was on the other
side of Fairview from his property.
{¶98} Ruck testified that Stinebaugh did not want to tap into the Fairview
line and so he contacted Ruck’s office because he wanted them to look into running
another line on an unimproved right-of-way on South Street, to the rear of
======= Case No. 2-22-27
Stinebaugh’s property. Stinebaugh instructed the engineering department to survey
that area to determine if there was enough fall in the elevation for a new sewer line
to be put in.
{¶99} As a result, the survey work was done and, following a review and
some calculations, Ruck’s department determined that there was enough elevation
for a sewer to be run there. Ruck testified that, once that determination was made,
Stinebaugh directed the engineering department to put in the sewer.
{¶100} Ruck had reservations about doing so, as the property was a
development and sewer lines should be installed at the developer’s cost. Ruck
explained that if a developer wanted the city to bear the cost of running a sewer line,
then the engineering department would normally refer the developer to city council,
as Ruck does not have the authority to make such decisions.
{¶101} However, in Stinebaugh’s case, while she knew it was wrong to do
so, Ruck testified that she went along with what Stinebaugh told her to do because
he was the mayor. When asked to elaborate further on that, Ruck testified that she
voiced her opinion to her direct boss, the Safety Service Director, and told him that
they should not put in the sewer for Stinebaugh as to do so was against the city
ordinance and policy. She testified that, however, she was then told to do it because
Stinebaugh was the mayor and “he could fire you if he wants to.” (Tr., 538).
{¶102} Ruck testified that the engineering department then calculated the
materials and supplies needed for the job, and called Schaub Excavating to come in
Case No. 2-22-27
and do the sewer installation job. Ruck identified State’s Exhibit 24 as the October
5, 2018 purchase order for Schaub Excavating in the amount of $13,234.00 that she
wrote for the project, and that the Auditor, Wilbur Wells, and the new Safety Service
Director, Floyd Greg, subsequently signed.
{¶103} Ruck testified that while the cost would typically have been paid by
the developer, the city paid Schaub Excavating to install the sewer line to
Stinebaugh’s property. Ruck further testified that Stinebaugh, while a home builder,
was also a developer in the sense that he had been developing the lot he owned.
Ruck identified the building permit issued to Stinebaugh for the Fairview Drive
property, which reflected that the parcel originally purchased by Stinebaugh had
been split by him into more than one lot.
{¶104} After viewing the evidence summarized above in a light most
favorable to the State, any rational trier of fact could have found the essential
elements of the crime of Theft in Office proven beyond a reasonable doubt. In
particular, the evidence permitted the reasonable inference that while he was mayor,
Stinebaugh, with purpose to deprive the City of Wapakoneta of public funds for an
expense which Stinebaugh privately bore the responsibility to pay for, knowingly
obtained control over those funds without the consent of the Wapakoneta City
Council, which was the only entity authorized to give consent for the expenditure
of public funds for an extension of the main sewer line at issue.
Case No. 2-22-27
{¶105} While Stinebaugh argues on appeal, and the majority concurs, that
[CITATION] did not as a matter of law
require Stinebaugh to bear the cost of the main sewer line extension in this case, I
disagree.
{¶106} The plain language of that ordinance, set forth in its entirety supra,
makes it clear that a “subdivider or developer shall provide a system of sanitary
sewer mains”, as well as providing lateral connections for each lot, when a
subdivision is being developed. While Stinebaugh’s building project involved only
one original lot that had been split into two, Stinebaugh qualified as a “subdivider”
pursuant to [CITATION], which
defines “subdivider” as “[a]ny individual, firm, association, syndicate,
copartnership, corporation, trust or other legal entity commencing proceedings
[SEGMENT 10]
under these Regulations to effect a subdivision of land hereunder for himself or
herself or for another.” “Subdivision” is then defined by [CITATION]
of those ordinances as “[t]he division of any parcel of land shown as a unit or as
contiguous units on the last preceding tax roll, into two or more parcels, sites or lots,
any one of which is less than five acres, for the purposes, whether immediate or
future, of transfer of ownership * * * .”
{¶107} Accordingly, I would find that Stinebaugh’s challenge on appeal in
the second assignment of error is defeated by a plain reading of [CITATION],
particularly when the language of that ordinance is considered in conjunction with
Case No. 2-22-27
the overwhelming evidence presented at trial as to the City of Wapakoneta’s well-
established practices, procedures, and policies with regard to that ordinance.
{¶108} In sustaining the second assignment of error, the majority also relies
on section 208.03 of the Wapakoneta Codified Ordinances and R.C. 735.05. As the
majority opinion notes, section 208.03 provides that “[t]he Director of Public
Service and Safety is hereby authorized to execute public contracts for the purchase
of supplies, materials or labor as provided in Ohio R.C. 735.05.” The version of
R.C. 735.05 in effect at the time of Stinebaugh’s theft in office offense provided, in
relevant part:
The director of public service may make any contract, purchase
supplies, or material, or provide labor for any work under the
supervision of the department of public service involving not more
than fifty thousand dollars. When an expenditure within the
department, other than the compensation of persons employed in the
department, exceeds fifty thousand dollars, the expenditure shall first
be authorized and directed by ordinance of the city legislative
authority.
{¶109} The majority reads those two legislative enactments as having given
Wapakoneta’s Safety Service Director the discretion to expend, without the
approval of city council, the approximately $13,000.00 paid to Schaub Excavating
to install the extension of the main sewer line to the property being developed by
Stinebaugh.
{¶110} However, even assuming that the majority’s broad interpretation of
those legislative enactments is correct, the record contains no evidence tending to
Case No. 2-22-27
reflect that the safety service director, who did not testify at trial, invoked any
budgetary discretion he may have possessed pursuant to those legislative sections
with regard to the sewer line extension at issue here. The fact that Safety Service
Director Floyd Greg may have signed the purchase order prepared by Mary Ruck
reflects merely that Greg agreed to the City of Wapakoneta paying Schaub
Excavating for the sewer project as set forth in that document, not that Greg had
exercised some specific and discretionary fiscal authority.
{¶111} Finally, the majority suggests that Stinebaugh may have been guilty
of Theft in violation of R.C. 2913.02(A)(4) or R.C. 2913.02(A)(5) [i.e. theft by
threat or theft by intimidation], but that the prosecution’s theory at trial, being that
Stinebaugh committed a theft offense pursuant to R.C. 2913.02(A)(1), somehow
fails because the five subsections of the Theft statute are “‘mutually exclusive’” and
“to be ‘read in the disjunctive.’” (Maj. Opin. at 30, quoting 29B Ohio Jur.3d,
Criminal Law, § 781 (2024), quoting [CITATION]).
{¶112} While I agree with the majority that Stinebaugh may also have been
guilty of Theft in violation of R.C. 2913.02(A)(4) or R.C. 2913.02(A)(5), I do not
agree with the majority’s contention that the five subsections of R.C. 2913.02, the
statute defining Theft, are mutually exclusive. A review of [CITATION], the case
relied upon by the majority in support of that contention, reflects that it was ambiguous language in a former version of R.C.
Case No. 2-22-27
2913.02 upon which the court in [CITATION] based its holding that the then four
subsections of the Theft statute were to be read in a disjunctive, mutually exclusive
manner. Subsequent to the decision in [CITATION], R.C. 2913.02 was amended and that
ambiguity was corrected. My research reflects no persuasive authority supporting
the proposition that the subsections of the current version of R.C. 2913.02 are to be
read and applied in solely a mutually exclusive manner.
{¶113} In conclusion, for all the reasons set forth in this dissent, I am unable
to join the majority with respect to the second assignment of error. I would reject
Stinebaugh’s claim that the predicate theft offense underlying the Theft in Office
charge was not supported by sufficient evidence. The second assignment of error
should be overruled, and the judgment of conviction and sentence relating to Count
17 should be affirmed.
/hls
====== End of Document ======
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-23-12
PLAINTIFF-APPELLEE,
v.
ROSSTIN GUY BENDER, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2022-CR-0106
Judgment Affirmed
Date of Decision: May 6, 2024
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips for Appellee Case No. 14-23-12
ZIMMERMAN, J.
{¶1} Defendant-appellant, Rosstin G. Bender (“Bender”), appeals the March
22, 2023 judgment entry of sentence of the Union County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} This case stems from an April 29, 2022 altercation between Bender and
the victim, B.H., during which Bender stabbed B.H. with a knife nine times. On
April 29, 2022, B.H., along with his girlfriend, Faith Selover (“Faith”) and her
brother, Joel Selover (“Joel”), invited Dean Smith (“Smith”), Bender, and Star
Mentzer (“Mentzer”), Bender’s girlfriend, to the residence that the three shared to
“see and enjoy for a campfire” the landscape lighting that they installed in their
backyard. (Feb. 6, 2023 Tr., Vol. II, at 33). During the gathering, “the lights kept
getting kicked over and kicked down, stepped on[, so B.H.] asked several times to
please watch the lights.” (Id. at 37). According to B.H., when he and Bender were
“bickering back and forth about the lights,” Bender discharged a firearm into the
ground. (Id. at 38). Joel testified that he believed that Bender “discharged the gun
into the ground * * * to diffuse the situation.” (Id. at 83).
{¶3} Later, when B.H. returned outside “after using the bathroom[, he saw]
that the lights were kicked over again.” (Id. at 40). Because Mentzer giggled after
B.H. inquired about “who kicked over the lights,” B.H. asked Bender and Mentzer
to “leave” “if they think it’s funny * * * .” (Id.). Instead of leaving, Bender “asked
Case No. 14-23-12
if [B.H.] wanted to fight him” and B.H. agreed. (Id.). According to B.H., Bender
then traversed 15-to-20 feet to reach him. However, before Bender could get to
B.H., Faith “tried to come in the middle between [them] to put her arms out and
separate the distance.” (Id. at 47). Nevertheless, Bender “swung past her” and “hit
[B.H.] first.” (Id. at 48). “[T]he last thing [B.H. could] remember is holding Mr.
Bender on top of [him] and [Faith] pulling Bender off of [him] and [Joel] pulling
[B.H.] back off the ground.” (Id. at 49). B.H. did not know that he had been stabbed
until he tried to stand.
{¶4} On May 6, 2022, the Union County Grand Jury indicted Bender on
Counts One and Two of felonious assault in violation of R.C. 2903.11(A)(1),
(D)(1)(a), second-degree felonies, and Count Three of using weapons while
intoxicated in violation of R.C. 2923.15(A), (B), a first-degree misdemeanor. On
May 10, 2022, Bender appeared for arraignment and pleaded not guilty to the counts
alleged in the indictment.
{¶5} On October 4, 2022, Bender filed a notice of self-defense under Crim.R.
[SEGMENT 11]
12.2 stating that he intended
to present evidence that on April 22, 2022 [sic], the alleged victim *
* * punched [Bender] in the face without justification and used his
forearm to compress [Bender’s] throat while on the ground to the
point he could not breathe; and that [Bender] had reasonable grounds
to believe, and honestly believed, he was imminent or immediate
danger of death or great bodily harm, at the time he defended himself
with a knife.
Case No. 14-23-12
(Doc. No. 44). On October 7, 2022, the State filed a memorandum in opposition to
Bender’s notice of self-defense. That same day, the State filed a motion in limine
requesting that the trial court prevent Bender “from introducing specific instance
[sic] of conduct by the victim in this matter unless and until [Bender] establishes
those instances of conduct are relevant and otherwise admissible to his claim of self-
defense.” (Doc. No. 48).
{¶6} On January 31, 2023, the State filed another motion in limine requesting
that the trial court prevent Bender “from introducing specific instances of conduct
to prove the victim was the initial aggressor in support of his claim of self-defense.”
(Doc. No. 78). On February 6, 2023, Bender filed a memorandum in opposition to
the State’s motion in limine. That same day, Bender requested that the trial court
instruct the jury on self-defense and the inferior-degree offense of aggravated
assault.
{¶7} The case proceeded to a jury trial on February 6-8, 2023. On February
8, 2023, the jury found Bender guilty of the counts alleged in the indictment.
{¶8} On March 22, 2023, the trial court sentenced Bender to a minimum term
of five years in prison to a maximum term of seven and one-half years in prison on
Count One and 180 days in jail on Count Three. (Doc. No. 91). The trial court
ordered that Bender serve the terms concurrently. Further, the trial court merged
Counts One and Two for purposes of sentencing.
Case No. 14-23-12
{¶9} Bender filed his notice of appeal on April 20, 2023. He raises seven
assignments of error for our review. For ease of our discussion, we will begin by
discussing Bender’s first and sixth assignments of error together; followed by his
second assignment of error; then together his third, fourth, and fifth assignments of
error; and finally his seventh assignment of error.
First Assignment of Error
The Jury Lost Its Way When Reviewing The Evidence Presented
For Guilt Contrasted With The Evidence Of Self-Defense,
Resulting In A Verdict That Is Against The Manifest Weight Of
The Evidence.
Sixth Assignment of Error
The Trial Court Erred When It Overruled Appellant’s Motion
For A Criminal Rule 29 Acquital [sic].
{¶10} In his first and sixth assignments of error, Bender argues that his
felonious-assault convictions are based on insufficient evidence and are against the
manifest weight of the evidence. On appeal, Bender does not dispute that the State
proved the elements of felonious assault. Rather, Bender contends that his
felonious-assault convictions are based on insufficient evidence and are against the
manifest weight of the evidence because he “presented evidence by a preponderance
of the evidence that he acted in self-defense, and the State failed to prove beyond a
reasonable doubt that it was not self-defense * * * .” (Appellant’s Brief at 11).
Case No. 14-23-12
Standard of Review
{¶11} Under Crim.R. 29(A), a court “shall order the entry of the judgment
of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a
conviction of such offense or offenses.” Consequently, “[a] motion for acquittal
under Crim.R. 29(A) is governed by the same standard as the one for determining
whether a verdict is supported by sufficient evidence.” [CITATION]
{¶12} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” [CITATION] Accordingly,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” [CITATION]
See also [CITATION]
Case No. 14-23-12
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”).
{¶13} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” [CITATION] at 387,
quoting [CITATION]. A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. [CITATION]. When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” [CITATION], quoting [CITATION].
Sufficiency of the Evidence
{¶14} As an initial matter, even though Bender challenges the sufficiency
and the weight of the evidence supporting the jury’s finding of guilt as to the
felonious-assault charge under Count Two of the indictment, we need not address
that argument. Accord [CITATION].
Case No. 14-23-12
4123, ¶ 11. “Specifically, ‘[w]hen counts in an indictment are allied offenses, and
there is sufficient evidence to support the offense on which the state elects to have
the defendant sentenced, the appellate court need not consider the sufficiency [or
weight] of the evidence on the count that is subject to merger because any error
would be harmless’ beyond a reasonable doubt.” Id., quoting [CITATION].
{¶15} In this case, error, if any, with respect to the sufficiency or weight of
the evidence as to the jury’s finding of guilt as to Bender’s felonious-assault charge
under Count Two is harmless beyond a reasonable doubt because it was merged
with Count One. Accord id. at ¶ 12; [CITATION] at ¶ 13. In other words, Bender was not
convicted of the felonious-assault offense alleged under Count Two because the trial
court merged that offense for purposes of sentencing. Accord [CITATION] at ¶ 12.
Indeed, the Supreme Court of Ohio has explicitly stated that a “conviction” requires
both a finding of guilt and a sentence. [CITATION] at ¶ 16. For these reasons, we need
not address any arguments challenging the sufficiency or weight of the evidence
regarding the jury’s finding of guilt as to Bender’s felonious-assault charge under
Count Two. Accord [CITATION] at ¶ 12; [CITATION] at ¶ 13, 18.
{¶16} Therefore, we will begin by addressing Bender’s sufficiency-of-the-
evidence argument as it relates to his felonious-assault conviction under Count One.
On appeal, Bender argues that the trial court erred by denying his Crim.R. 29 motion
because the State failed to prove beyond a reasonable doubt that he did not act in
Case No. 14-23-12
self-defense. Decisively, Bender’s challenge to the sufficiency of the evidence as
to self-defense is inappropriate. Accord [CITATION], 3d Dist. Allen No. 1-13-
31, 2014-Ohio-1787, ¶ 10; [CITATION], 2022-Ohio-
4562, ¶ 27.
{¶17} Traditionally, “[s]elf-defense is an affirmative defense, and the
accused bears the burden of proving it by a preponderance of the evidence.” [CITATION]
at ¶ 11. “However, effective March 28, 2019, the General Assembly modified
Ohio’s self-defense statute, R.C. 2901.05, to place the burden on the state to prove
beyond a reasonable doubt that the accused did not act in self-defense.” [CITATION], 12th Dist. Fayette No. CA2021-10-022, 2022-Ohio-2331, ¶ 30. Currently,
“[e]vidence as to all elements of self-defense must be presented at trial in order for
[SEGMENT 12]
a defendant to be acquitted, but to overcome the claim, the state need only disprove
one element of the defense by proof beyond a reasonable doubt.” Id. at ¶ 31.
“Moreover, any presumption as to the use of force in self-defense ‘may be rebutted
by a preponderance of the evidence, provided that the prosecution’s burden of proof
remains proof beyond a reasonable doubt as described in’ R.C. 2901.05(B)(1).” Id.,
quoting R.C. 2901.05(B)(4).
{¶18} Nevertheless, “there is no due-process right to a presumption of an
affirmative defense such as self-defense.” [CITATION], 2022-
Ohio-4562, at ¶ 19. Thus, notwithstanding “the shift in the burden of proof by the
amendment to R.C. 2901.05, the absence of self-defense is not an essential element
Case No. 14-23-12
of any offense that the state carried the burden of proving at trial.” [CITATION] at ¶ 36.
See also [CITATION], 10th Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶
43 (concluding that “there is nothing in the current version of R.C. 2901.05(B)(1)
indicating that by shifting the burden of proof on the affirmative defense of self-
defense, the General Assembly intended to transform the absence of self-defense
into an essential element of a criminal offense”). Consequently, “[Bender’s] claim
of self-defense is not an aspect of a sufficiency of the evidence or Crim.R. 29
analysis, and the trial court did not err [by denying his] Crim.R. 29 motion [in light
of his] self-defense claim.” [CITATION] at ¶ 36. Therefore, we will address Bender’s
self-defense argument only in our analysis of the manifest weight of the evidence.
Id.
Manifest Weight of the Evidence
{¶19} Bender was convicted of felonious assault in violation of R.C.
2903.11(A)(1). R.C. 2903.11 provides, in its relevant part, that “[n]o person shall
knowingly * * * [c]ause serious physical harm to another * * * .” R.C.
2903.11(A)(1). Bender does not dispute that the State proved the elements of that
offense. Rather, Bender argues that the jury lost its way in concluding that he did
not act in self-defense.
{¶20} Under Ohio’s current self-defense statute, “a defendant claiming self-
defense has the burden of production—that is, the burden of producing evidence
that ‘tends to support’ his use of force in defending himself.” [CITATION], 3d
Case No. 14-23-12
[CITATION]. Thus, “if evidence is presented ‘that tends to
support’ that the defendant used the force in self-defense, the prosecution must
prove beyond a reasonable doubt that the accused did not act in self-defense.”
(Emphasis sic.) [CITATION],
¶ 43. “Accordingly, ‘the burden of proof for * * * self-defense has shifted to the
state,’ but ‘the burden of production for * * * self-defense[ ] remains with the
defendant.’” (Emphasis sic.) [CITATION],
{¶21} “Self-defense is an affirmative defense that, if proved, relieves a
defendant of criminal liability for the force that the defendant used.” [CITATION] ¶
43. “The elements of self-defense differ depending on whether the defendant used
deadly or non-deadly force to defend himself.” [CITATION] ¶ 15.
Deadly force is “any force that carries a substantial risk that it will proximately
result in the death of any person.” R.C. 2901.01(A)(2). A “substantial risk” is “a
strong possibility, as contrasted with a remote or significant possibility, that a
certain result may occur or that certain circumstances may exist.” R.C.
2901.01(A)(8). In most situations, “stabbing a victim (or victims) with a knife
constitutes the use of deadly force.” [CITATION]
To establish self-defense through the use of deadly force, an accused
must prove: “(1) the accused was not at fault in creating the situation
giving rise to the affray; (2) the accused had a bona fide belief that he
Case No. 14-23-12
or she was in imminent danger of death or great bodily harm and that
the only means of escape from such danger was in the use of force;
and (3) the accused must not have violated any duty to retreat or to
avoid the danger.”
Bagley at ¶ 16, quoting [CITATION]. Generally, “a person is privileged only to ‘use as much force as is
reasonably necessary to repel [an] attack.’” [CITATION], quoting [CITATION].
{¶22} “[T]he State must ‘disprove at least one of the elements of self-defense
beyond a reasonable doubt.’” [CITATION], quoting [CITATION]. “‘The elements of self-defense are cumulative, and a
defendant’s claim of self-defense fails if any one of the elements is not present.’”
Id., quoting [CITATION].
{¶23} On appeal, Bender contends that the evidence that he presented at trial
that he acted in self-defense is weightier than the evidence presented by the State
that he did not. In support of this argument, Bender points to the inconsistencies of
B.H.’s, Joel’s, and Faith’s testimonies. Specifically, Bender contends that “the
State’s evidence regarding the logistics of the fight is contrary to [findings of the
emergency room doctor who B.H.], creating doubt on the credibility of its witnesses
Case No. 14-23-12
in their entirety.” (Appellant’s Brief at 5). That is, Bender contends that “the
placement of [B.H.’s] wounds is consistent with [B.H.] being on top of Mr. Bender
and Mr. Bender doing whatever he could to get [B.H.] off of him because he was
being choked.” (Id. at 11). Consequently, Bender argues that the weight of the
evidence supports that he acted in self-defense. In other words, Bender contends
that his version of the incident is more credible than B.H.’s, Joel’s, and Faith’s
version.
{¶24} “Although we review credibility when considering the manifest
weight of the evidence, the credibility of witnesses is primarily a determination for
the trier of fact.” [CITATION], ¶ 13, citing [CITATION], at paragraph one of the syllabus. “The trier
of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]
and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’” Id., quoting [CITATION], ¶ 24, citing [CITATION] (1984).
{¶25} Notwithstanding Bender’s contention that B.H.’s, Joel’s, and Faith’s
testimonies conflict with the medical evidence, “we are mindful of the jury’s
‘superior first-hand perspective in judging the demeanor and credibility of
witnesses.’” [CITATION], ¶ 33,
quoting [CITATION], ¶ 125.
Case No. 14-23-12
Critically, it is well within the province of the trier-of-fact to determine the
credibility of B.H.’s, Joel’s, Faith’s, and Bender’s testimonies, including the
prerogative to find Bender’s version of events not to be truthful. Accord [CITATION].
Indeed, the trier of
fact was free to believe or disbelieve B.H.’s, Joel’s, and Faith’s testimonies (or
Bender’s testimony) or accept part of what B.H., Joel, Faith, and Bender said and
reject the rest. Accord id.
{¶26} Even so, notwithstanding Bender’s contention that the weight of the
evidence suggests that he acted in self-defense because the medical evidence
supports his version of events, the balance of the State’s evidence weighs against
Bender’s self-defense claim. In other words, the weight of the evidence reflects that
Bender was at least partially at fault in creating the situation giving rise to the affray.
Indeed, the evidence reflects that Bender voluntarily entered into the fight with B.H.
by inviting B.H. to fight. The record further reflects that Bender exceeded the force
reasonably necessary for self-defense during the fight. See [CITATION].
{¶27} To begin with, Bender bore the initial burden of production under the
first element of a self-defense claim to demonstrate that he was not at fault for
Case No. 14-23-12
creating the violent situation. Accord [CITATION], ¶ 39. “[T]he first element of a self-defense claim provides
that the defendant must not be at fault in creating the situation that gave rise to the
affray.” [CITATION], ¶ 14. See also [CITATION], ¶ 82 (“‘Ohio courts have long recognized that a person cannot provoke [an] assault or
[SEGMENT 13]
voluntarily enter an encounter and then claim a right of self-defense.’”), quoting
[CITATION] “This concept is broader than simply not being the immediate aggressor.”
[CITATION] at ¶ 14. “A person may not provoke an assault or voluntarily enter an
encounter and then claim a right of self-defense.” Id. “Ohio courts have long
recognized that a defendant is at fault in creating the situation giving rise to the
affray when the defendant chooses to confront the victim or knowingly go to a place
where the victim will be, even when the defendant’s action was otherwise
completely lawful.” Id. at ¶ 15.
{¶28} In this case, the State presented the testimony of B.H. and Faith, who
testified that Bender was the initial aggressor and that he voluntarily entered into
the fight with B.H. by inviting B.H. to fight. Accord [CITATION], ¶ 118 (specifying that “[b]oth of the
state’s witnesses contradicted appellant’s version, testifying Barnett and appellant
willingly met up in the middle of the street and [the appellant] began to throw
Case No. 14-23-12
punches”). See also [CITATION] at ¶ 15 (“Even if [the victim] grabbed appellant by the
neck and pushed her against the house and, under appellant’s version, appellant did
not throw the first punch, the trial court did not err in finding that appellant was at
fault in creating the situation.”).
{¶29} At trial, B.H. testified that, after he asked Bender and Mentzer to leave,
Bender responded by asking him if he “wanted to fight him.” (Feb. 6, 2023 Tr.,
Vol. II, at 40). B.H. further testified that, after he agreed to fight Bender, Bender
traversed 15-to-20 feet to reach him, then “swung past” Faith (who was trying to
intercede) and struck B.H. first. (Id. at 48). Faith likewise testified that, after B.H.
asked Bender and Mentzer to leave, Bender “asked [B.H.] if he wanted to fight.”
(Id. at 127). According to Faith, Bender “punched [B.H.] in the face,” then B.H.
“punched him back.” (Id. at 130).
{¶30} Moreover, even though Bender denied that he threw the first punch,
Bender’s own testimony suggests that he was at least partially at fault for creating
the situation giving rise to the affray. Accord [CITATION] at ¶ 85; [CITATION],
11th Dist. Trumbull Nos. 2002-T-0115 and 2002-T-0116, 2003-Ohio-6762, ¶ 30-31
(concluding that the defendant could not claim self-defense because “his testimony
demonstrated that he was at least partially at fault for creating the situation giving
rise to the affray”). That is, Bender testified that he voluntarily entered the
encounter with B.H. See [CITATION], 2d Dist. Greene No. 2019-CA-19,
2020-Ohio-3681, ¶ 40.
Case No. 14-23-12
{¶31} Nevertheless, the weight of the evidence presented at trial reflects that
Bender did not have a bona fide belief that he was imminent danger of death or great
bodily harm and that this only means of escape from such danger was the use of
force a required by the second element of a self-defense claim. Under the second
element of self-defense, “[t]he person’s belief must be objectively reasonable under
the circumstances and he must subjectively believe he needed to resort to force to
defend himself.” [CITATION] Specifically, “‘[t]he objective part of the test requires consideration of “whether,
considering all of the defendant’s particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack,” a
reasonable person would believe that danger was imminent.’” [CITATION], quoting [CITATION] “The subjective part requires consideration of whether the defendant himself
actually believed that he was in imminent danger.” [CITATION]
{¶32} Importantly, under the second element of a self-defense claim “a
defendant must show that ‘that the degree of force used was “warranted” under the
circumstances and “proportionate” to the perceived threat.’” [CITATION] at ¶ 55, quoting
[CITATION] “‘If * * * the amount of force used is so disproportionate that
it shows an “unreasonable purpose to injure,” the defense of self-defense is
unavailable.’” [CITATION], quoting [CITATION]
Case No. 14-23-12
Ohio-87, ¶ 27, quoting [CITATION].
{¶33} In this case, the weight of the evidence presented at trial demonstrates
that Bender’s use of deadly force was not “reasonably necessary and proportionate
to the apparent danger.” [CITATION]. Critically, Bender “brought a knife to a fist fight and seriously
injured” B.H. [CITATION]. Specifically, the evidence reflects that Bender and B.H. “met with the intention
of engaging in a fist fight.” [CITATION]. Indeed,
there was no evidence presented that B.H. wielded a weapon during the altercation.
{¶34} Certainly, under the facts presented, it was within the province of the
jury to credit the testimonies offered by the State’s witnesses that Bender did not
have “reasonable grounds for believing there was an imminent threat of death or
serious bodily harm.” [CITATION]. Consequently, the evidence presented reflects
that Bender “used deadly force when he was not faced with deadly force” and that
“[t]he degree of force used by [Bender] was neither warranted under the
circumstances nor proportionate to the perceived threat.” [CITATION].
Case No. 14-23-12
{¶35} Therefore, based on our review of the record, we conclude that the
trier of fact did not lose its way by concluding that Bender did not act in self-defense.
“The jury heard all of the testimony, considered the evidence, and found the state’s
witnesses credible, and we will not disturb the jury’s verdict on appeal.” [CITATION]
at ¶ 37. Importantly, “[t]he jury did not lose its way simply because it believed the
prosecution testimony and disbelieved appellant’s account.” [CITATION] Accordingly,
weighing the evidence and all reasonable inferences, and considering the credibility
of witnesses, we conclude the jury did not clearly lose its way and create such a
manifest miscarriage of justice that Bender’s felonious-assault conviction must be
reversed and a new trial ordered. Thus, Bender’s felonious-assault conviction under
Count One is not against the manifest weight of the evidence.
{¶36} Bender’s first and sixth assignments of error are overruled.
Second Assignment of Error
The Trial Court Erred When It Failed To Grant A Mistrial First
After The Jury Was Tainted By Inaccurate Statements Made By
The Prosecutor Regarding Appellant’s Attempt To Invoke The
Fifth Amendment When He Was On The Stand And Second
When The Prosecutor Improperly Commented On Appellant’s
Pre-Arrest Silence.
{¶37} In his second assignment of error, Bender argues that the trial court
erred by failing to declare a mistrial based on prosecutorial misconduct.
Specifically, Bender argues that the prosecutor improperly “commented on * * *
Mr. Bender invoking his Fifth Amendment right not to incriminate himself, then
Case No. 14-23-12
minutes later commenting on Mr. Bender’s pre-arrest silence.” (Appellant’s Brief
at 12).
Standard of Review
{¶38} “‘A mistrial should not be ordered in a cause simply because some
error has intervened. The error must prejudicially affect the merits of the case and
the substantial rights of one or both of the parties.’” [CITATION], ¶ 18, quoting [CITATION]. “Notably, mistrials are appropriate
only when the ends of justice so require and a fair trial is no longer possible.” [CITATION], ¶ 61.
{¶39} “Because it rests within the sound discretion of the court, we review a
trial court’s grant or denial of a motion for a mistrial for an abuse of discretion.”
[CITATION], ¶ 44. An
abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. [CITATION].
Analysis
{¶40} In this case, Bender moved for a mistrial based on alleged improper
statements made by the prosecutor at trial. “When a defendant moves for a mistrial
based on prosecutorial misconduct, the trial court must determine whether ‘the
prosecutor’s actions were improper, and, if so, whether the defendant’s substantial
rights were actually prejudiced.’” [CITATION],
====== End of Instruction ====== Case No. 14-23-12
2023-Ohio-2863, ¶ 24, quoting [CITATION]. Thus, “‘[w]hen the grounds for a mistrial are based on prosecutorial misconduct, the defendant must show that the alleged misconduct deprived him of a fair trial.’” [CITATION], ¶ 40, quoting [CITATION]. “‘The defendant must show that, but for the prosecutor’s misconduct, the trier of fact would not have convicted him.’” Dukes at ¶ 24, quoting [CITATION]. “‘In making this determination, an appellate court should consider several factors: (1) the nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant.’” [CITATION], ¶ 46, quoting [CITATION].
[SEGMENT 14]
{¶41} Bender takes issue with the prosecutor’s statements regarding the invocation of his Fifth Amendment right against self-incrimination and his pre-arrest, pre-Miranda silence. “The Fifth Amendment to the Constitution of the United States provides that no person ‘shall be compelled in any criminal case to be a witness against himself.’” [CITATION], ¶ 8, quoting the Fifth Amendment to the U.S. Constitution. “This Amendment is made applicable to the states through the due process clause of the Fourteenth Amendment.” Id.
Case No. 14-23-12
{¶42} “‘The right to remain silent is conferred by the United States and the
Ohio Constitutions.”’ [CITATION], 2020-Ohio-426, at ¶ 50, quoting [CITATION], 5th
Dist. Stark No. 2002CA00014, 2003-Ohio-137, ¶ 78. “‘The privilege against self-
incrimination “is fulfilled only when the person is guaranteed the right ‘to remain
silent unless he chooses to speak in the unfettered exercise of his own will.’”’” Id.,
quoting [CITATION] at ¶ 78, quoting [CITATION], 384 U.S. 436, 460, 86 S.Ct.
1602 (1966), quoting [CITATION], 378 U.S. 1, 8, 84 S.Ct. 1489, (1964). “This
rule enforces one of the underlying policies of the Fifth Amendment, which is to
avoid having the jury assume that a defendant’s silence equates with guilt.” [CITATION]
at ¶ 10.
{¶43} Here, Bender contends that the prosecutor improperly asserted that
Bender “was not entitled to assert [his Fifth Amendment] privilege, in front of the
jury, stating ‘[Bender] waived [his] Fifth Amendment right’ * * * .” (Appellant’s
Brief at 12-13, quoting Feb. 7, 2023 Tr., Vol. II, at 194). The State disputes
Bender’s argument and asserts that the prosecutor’s statements were not improper
because Bender’s refusal to answer was not justified.
{¶44} “‘There is no absolute right to invoke the Fifth Amendment.’” [CITATION],
3d Dist. Seneca No. 13-13-27, 2014-Ohio-1134, ¶ 22, quoting [CITATION],
293 F.Supp.2d 854, 859 (C.D.Ill.2003). “The protections against self-incrimination ‘must be confined to instances where
the witness has reasonable cause to apprehend danger from a direct answer.’” [CITATION]
====== End of Part of a Court Ruling ====== Case No. 14-23-12
v. Arnold, [CITATION], quoting Hoffman v. United
States, [CITATION]. Consequently, “‘when a witness
asserts a privilege against self-incrimination, a court may not rely upon the witness’s
claim alone, but has a duty to determine whether the witness’s refusal to answer is
justified.’” State v. Barton, [CITATION], quoting State v. Spangler, [CITATION].
{¶45} Based on our review of the record, we conclude that Bender’s refusal
to answer was not justified. Specifically, at trial, Bender testified on direct
examination regarding his witness’s—Dean Smith—testimony that Bender
“coached” his testimony:
[Bender]: My side of the things * * * is that, when we come to
consult with * * * our lawyer * * * that we all talk
separately and we generally had an idea of what
happened that night. I’ve made statements in the past
that I am claiming self-defense but I’ve never persuaded
anybody or told anybody or coached anybody on what
to say here today.
[Trial Counsel]: So [Smith] did that on his own?
[Bender]: Correct.
[Trial Counsel]: Part of an effort to help you?
[Bender]: I would assume so.
[Trial Counsel]: Misguided effort, would you say?
[Bender]: Most definitely.
Case No. 14-23-12
(Feb. 7, 2023 Tr., Vol. II, at 179-180). On cross-examination, Bender invoked his
Fifth Amendment privilege against self-incrimination:
[The Prosecutor]: If I understand your testimony correctly, your friend just
came in here and lied. Is that right?
[Bender]: It would appear so, yes.
[The Prosecutor]: He had lied when he said you told him what to say.
Right?
[Bender]: I plead the fifth on that question.
(Id. at 193-194). Following consultation with his trial counsel, Bender answered
the prosecutor’s question:
[The Prosecutor]: And so, you told him what to say?
[Bender]: I did not.
[The Prosecutor]: You did not, so he lied about that?
[Bender]: Correct.
[The Prosecutor]: [W]ell, why did you plead the fifth then?
[Bender]: I was confused on the question and did not know how
to answer.
(Id. at 194-195).
{¶46} Based on our review of Bender’s testimony, we conclude that Bender
did not present a basis to invoke his Fifth Amendment privilege against self-
incrimination. See [CITATION]. “‘[W]hen a defendant chooses
to testify in a criminal case, the Fifth Amendment does not allow him to refuse to
Case No. 14-23-12
answer related questions on cross-examination.’” [CITATION] quoting [CITATION]’. Significantly, “‘[a] defendant “has no right to set forth to the jury all
the facts which tend in his favor without laying himself open to a cross-examination
upon those facts.”’” Id., quoting [CITATION] Therefore, because Bender’s refusal was
not justified, the prosecutor’s cross-examination of Bender was not improper.
{¶47} Bender further argues that the prosecutor improperly cross-examined
him regarding his pre-arrest, pre-Miranda silence. Specifically, Bender contends
that the prosecutor improperly “commented on [his] pre-arrest silence to attack the
self-defense [claim] by inferring that if he had nothing to hide, why didn’t he go to
the police, or check in on his friend on a regular basis.” (Appellant’s Brief at 13).
Here, Bender suggests that he was deprived of a fair trial because the prosecutor’s
cross-examination of him regarding his pre-arrest, pre-Miranda silence constituted
substantive evidence of his guilt. The State refutes Bender’s argument and contends
that the prosecutor’s cross-examination of Bender had “probative value for
impeachment, since Bender’s claim of self-defense and claiming to be the victim of
an attack would usually result in a report of his lawful use of force to the police
when it happened.” (Appellee’s Brief at 19).
{¶48} Generally, the “[u]se of a defendant’s pre-arrest silence as substantive
evidence of guilt violates the Fifth Amendment privilege against self-
Case No. 14-23-12
incrimination.” [CITATION], syllabus.
However, “[a] defendant’s pre-arrest, pre-Miranda silence may be introduced for
impeachment purposes.” [CITATION], at ¶ 55. Specifically, when “the
defendant has ‘cast aside his cloak of silence,’” the “use of pre-arrest silence as
impeachment evidence is permitted because it furthers the truth-seeking process.”
[CITATION] at ¶ 33, quoting [CITATION]
(1980). “Otherwise, a criminal defendant would be provided an opportunity to
perjure himself at trial, and the state would be powerless to correct the record.” Id.
Likewise, “the use of a defendant’s pre-arrest, pre-Miranda silence as substantive
evidence of guilt does not violate the Fifth Amendment privilege against self-
incrimination if the defendant fails to expressly invoke the privilege.” [CITATION],
¶ 17, citing [CITATION]
(2013).
{¶49} Importantly, “the Constitution does not prohibit references to a
defendant’s invocation of the right to remain silent as a ‘fair response’ to a
defendant’s claims.” [CITATION], ¶ 30, quoting [CITATION]
(1988). See also [CITATION], ¶ 16 (“‘The United States Supreme Court has held that the Fifth Amendment
does not prohibit references to a defendant’s invocation of the right against self-
incrimination when the references are made in “fair response” to the defense’s
Case No. 14-23-12
claims.’”), quoting [CITATION], quoting [CITATION]. “A fair response is warranted in such
circumstances because ‘“the protective shield of the Fifth amendment”’ should not
become ‘“a sword that cuts back on the area of legitimate comment by the
prosecutor on the weaknesses in the defense case.”’” [CITATION], quoting
[SEGMENT 15]
[CITATION], quoting [CITATION] (1983) (Stevens, J., concurring).
{¶50} The prosecutor’s cross-examination of Bender regarding his pre-
arrest, pre-Miranda silence was not improper. Critically, the State’s cross-
examination of Bender amounts to impeachment evidence, which did not violate
Bender’s right to remain silent. [CITATION]. That is, the prosecutor’s
cross-examination of Bender regarding his pre-arrest, pre-Miranda silence was a
fair response to Bender’s self-defense claim. [CITATION].
See also [CITATION].
{¶51} Therefore, since the prosecutor did not improperly address Bender’s
invocation of his Fifth Amendment privilege against self-incrimination or his pre-
arrest, pre-Miranda silence, Bender’s substantial rights were not prejudiced and he
Case No. 14-23-12
was not deprived of a fair trial. For these reasons, we conclude that the trial court
did not abuse its discretion by denying Bender’s motion for a mistrial.
{¶52} Bender’s second assignment of error is overruled.
Third Assignment of Error
The Trial Court Erred When It Failed To Give A Jury Instruction
On Aggravated Assault.
Fourth Assignment of Error
The Trial Court Erred When It Gave An Improper Instruction
On Self-Defense.
Fifth Assignment of Error
The Trial Court Erred When It Failed To Send Verdict Forms To
The Jury As To The Issue Of Self-Defense.
{¶53} In his third, fourth, and fifth assignments of error, Bender challenges
the trial court’s jury instructions and verdict forms. In particular, in his third
assignment of error, Bender argues that the trial court erred by failing to instruct the
jury on the inferior-degree offense of aggravated assault. Bender specifically argues
in his fourth assignment of error that the trial court erroneously instructed the jury
regarding self-defense. Finally, in his fifth assignment of error, Bender argues that
the trial court erred by providing the jury with improper verdict forms.
Standard of Review
{¶54} “A trial court’s decision to give a jury instruction is within its
discretion, and we will not reverse such a decision absent an abuse of that
Case No. 14-23-12
discretion.” [CITATION]
Again, an abuse of discretion implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. [CITATION]
Analysis
{¶55} “While a trial court has broad discretion to determine how it will
instruct a jury, the court has a duty to ‘fully and completely give the jury all
instructions which are relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.’” [CITATION] quoting [CITATION] “Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction.”
[CITATION]
Aggravated Assault Instruction
{¶56} In his third assignment of error, Bender contends that the trial court
erred by failing to instruct the jury on the inferior-degree offense of aggravated
assault. “[A] trial court may refuse to issue a requested jury instruction if ‘“the
evidence adduced at trial is legally insufficient” to support it.’” [CITATION] quoting [CITATION] quoting [CITATION] See also [CITATION] (“When a trial court is faced with the
Case No. 14-23-12
decision whether to give a requested instruction, the appropriate inquiry is whether
sufficient evidence has been presented to support the instruction.”). “[T]he trial
judge is in the best position to gauge the evidence before the jury and is provided
the discretion to determine whether the evidence adduced at trial was sufficient to
require an instruction.” [CITATION]
{¶57} “Aggravated assault is an offense of an inferior degree of felonious
assault.” [CITATION] “An instruction on aggravated assault is appropriate when the evidence supports a
conviction for felonious assault, but the assault resulted from serious provocation
by the victim.” [CITATION]
That is, “[i]n a trial for felonious assault, where the defendant presents sufficient
evidence of serious provocation, such that a jury could both reasonably acquit [the]
defendant of felonious assault and convict [the] defendant of aggravated assault, an
instruction on aggravated assault, as an inferior degree of felonious assault, must be
given.” (Emphasis sic.) [CITATION]
{¶58} “‘Provocation, to be serious, must be reasonably sufficient to bring on
extreme stress and the provocation must be reasonably sufficient to incite or arouse
the defendant into using deadly force.’” Id. at ¶ 26, quoting [CITATION]paragraph five of the syllabus. “‘In determining whether
the provocation was reasonably sufficient to incite the defendant into using deadly
Case No. 14-23-12
force, the court must consider the emotional and mental state of the defendant and
the conditions and circumstances that surrounded him at the time.’” Id., quoting
[CITATION] at paragraph five of the syllabus.
{¶59} “Ohio courts considering what constitutes sufficient ‘serious
provocation’ have found that past incidents or verbal threats are not sufficient;
words are not sufficient; and a victim’s simple pushing or punching the defendant
is not sufficient.” [CITATION], ¶ 53. Similarly, “[r]egarding the emotional state necessary to constitute
sudden passion or a sudden fit of rage, Ohio courts have found that confusion or
fear alone is not sufficient.” Id. at ¶ 54. Indeed, “where a defendant testifies that
he was merely afraid and no evidence exists that he actually acted under a sudden
fit of passion or rage, a court does not abuse its discretion by refusing to provide an
instruction on aggravated assault.” [CITATION] at ¶ 36.
{¶60} On appeal, Bender argues that he presented sufficient evidence that he
acted under serious provocation. In response, the State expostulates that
“[a]ggravated assault is generally incompatible with a theory of self-defense
because self-defense requires proof of fear while aggravated assault requires a
showing of a sudden passion or rage.” (Appellee’s Brief at 20). In the alternative,
the State asserts that Bender did not present any evidence that he “acted ‘in a sudden
fit of rage.’” (Id. at 21). Instead, the State proclaims that Bender “unequivocally
testified that he stabbed [B.H.] out of a fear for his safety.” (Id.).
Case No. 14-23-12
{¶61} “This Court has stated that a defendant who asserts self-defense “‘is
not entitled under Ohio law to instructions on self-defense and on lesser included
offenses [or inferior degree offenses], but must choose between the two.”’” [CITATION], quoting [CITATION], quoting [CITATION]. Our sister courts of
appeal have agreed that “[i]n most cases, an aggravated assault instruction is
incompatible with an instruction on self-defense, so that both cannot be given
together.” [CITATION]. See also [CITATION] (“Generally, an instruction on aggravated assault is incompatible with an instruction
on self-defense, such that both cannot be given together, because the legal theories
underpinning each offense are incompatible (aggravated assault—rage; self-
defense—fear).”).
{¶62} However, some courts have diverged and resolved that “‘[w]here there
is sufficient evidence on the issues of self-defense and aggravated assault, the court
must charge the jury on both, when so requested.’” [CITATION], quoting [CITATION]. See also
[CITATION]. “For instance, an aggravated assault instruction could be given in a self-
Case No. 14-23-12
defense case where a defendant exceeded the amount of force necessary for his
defense, out of passion or rage.” [CITATION] at ¶ 26.
{¶63} Nevertheless, we need not resolve such disaccord in this case because
Bender did not present sufficient evidence that he acted under “sudden passion or a
fit of rage” as contemplated by the aggravated-assault statute. Decisively, the theory
of Bender’s case was that he stabbed B.H. nine times out of fear. Indeed, Bender
testified that he found himself on the ground with B.H. “on top of [him] attacking
[him] at which point [B.H.] took the mid section of his forearm and placed it on
[Bender’s] throat and [he] could no longer breathe.” (Feb. 7, 2023 Tr., Vol. II, at
166). Bender testified that “[a]t that point in time, [he] didn’t know if he was going
to stop. [He] could not get him off of [him]. [He] could not get his body weight off
of [him], so [he] reacted accordingly until [he] felt the pressure come off [his] neck.”
(Id. at 172). That is, he testified that he “pulled out [his] knife and [he] stabbed him
in the back, in the lower buttocks and the thigh until he stopped and [Bender]
[SEGMENT 16]
deemed him no longer a threat.” (Id.).
{¶64} Critically, Bender testified that “[i]t was at that time that [he] could no
longer breathe that [he] feared that [his] life was in danger and [he] reacted
accordingly.” (Emphasis added.) (Id. at 166-167). Specifically, Bender testified
that he stabbed him “[t]o get him to stop” because he “felt that [his] life was in
danger” and he “wanted to neutralize the threat.” (Id. at 173). In sum, Bender
testified that “[t]he moment that [he] felt the pressure come off [his] neck and [he]
Case No. 14-23-12
could once again breathe is the * * * moment that [he] stopped stabbing him * * *
.” (Id. at 167).
{¶65} Based on the foregoing, we conclude that Bender presented evidence
that he acted out of fear and not out of sudden passion or a fit of rage. See [CITATION]. That is, Bender
did not present reasonably sufficient evidence that the circumstances incited him to
use deadly force to repel the attack. As a result, Bender did not present sufficient
evidence of serious provocation. Compare [CITATION], at ¶ 16-17.
Consequently, the trial court did not abuse its discretion by failing to instruct the
jury on the inferior-degree offense of aggravated assault.
Self-Defense Instruction
{¶66} In his fourth assignment of error, Bender argues that the trial court
erred by instructing the jury that he had a duty to retreat in contravention of Ohio’s
“stand your ground” law under R.C. 2901.09. “The amended ‘stand your ground’
law in Ohio now provides that ‘a person has no duty to retreat before using self-
defense * * * if that person is in a place in which the person lawfully has a right to
be.’” [CITATION], quoting R.C. 2901.09(B), and citing [CITATION]. The statute further provides that “[a] trier of fact
shall not consider the possibility of retreat as a factor in determining whether or not
a person who used force in self-defense * * * believed that the force was necessary
Case No. 14-23-12
to prevent injury, loss, or risk to life or safety.” R.C. 2901.09(C). “‘Simply put, the
new “stand your ground’ law removes, in most cases, the duty to retreat before using
self-defense.’” [CITATION] at ¶ 46, quoting [CITATION], ¶ 15. But see [CITATION], ¶ 31 (cautioning that “R.C. 2901.09(C) is not an
absolute prohibition on introducing evidence involving the possibility of retreat.
Rather, the statute only prohibits fact finders from considering evidence involving
the possibility of retreat to determine whether the defendant’s belief that force was
necessary was reasonable. Fact finders may, however, consider retreat evidence to
determine who was at fault in creating the situation leading to the affray”).
{¶67} In this case, the trial court instructed the jury, in relevant part, that
[i]n determining whether the Defendant, in using force in self-defense
reasonably believed that the force was necessary to prevent injury,
loss, or risk to life or safety, you may not consider the possibility of
retreat by the Defendant. The Defendant had no duty to retreat before
using force in self-defense if the Defendant was in a place in which
he lawfully had a right to be.
(Feb. 8, 2023 Tr. at 70).
{¶68} “Whether the jury instructions correctly state the law is a question that
is reviewed de novo.” [CITATION], ¶ 135.
“De novo review is independent, without deference to the lower court’s decision.”
[CITATION], ¶ 27.
Case No. 14-23-12
{¶69} Based on our review of the trial court’s jury instruction, we conclude
that the trial court’s jury instruction is a correct statement of law. Compare [CITATION]
at ¶ 48 (concluding that the trial court’s self-defense jury instruction conformed with
Ohio’s “stand your ground” law). Indeed, the trial court’s jury instruction plainly
states the appropriate duty-to-retreat standard as codified in R.C. 2901.09.
Consequently, the trial court’s self-defense jury instruction is not unreasonable,
arbitrary, or unconscionable.
Verdict Forms
{¶70} In his fifth assignment of error, Bender argues that the trial court erred
by failing to give the jury a separate verdict form regarding his self-defense claim.
Specifically, Bender asserts that the trial court should have provided the jury with
verdict forms requiring the jury to assess whether the State met its burden of proving
that he did not act in self-defense.
{¶71} Importantly, Bender did not object to the verdict forms at trial.
Consequently, Bender has forfeited all but plain error on appeal. Accord [CITATION]
Under Crim.R. 52(B), “plain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” “We recognize plain error with the utmost
caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” [CITATION]
Case No. 14-23-12
legal rule, the error must have been an obvious defect in the proceeding, and the
error must have affected a substantial right.’” Id., quoting [CITATION], ¶ 34. “‘Under the plain error standard, the
appellant must demonstrate that the outcome of his trial would clearly have been
different but for the trial court’s errors.’” Id., quoting [CITATION] at ¶ 34.
{¶72} When reviewing a trial court’s jury instructions under the plain-error
standard, “‘an appellate court must review the [jury] instructions as a whole and the
entire record to determine whether a manifest miscarriage of justice has occurred as
a result of the error in the instructions.’” [CITATION], ¶ 38, quoting [CITATION], ¶ 137. “An improper or erroneous jury instruction does
not constitute plain error unless, but for the error, the outcome of the trial would
clearly have been different.” Id. Consequently, Bender is required to “demonstrate
that his convictions clearly would have been different had the trial court instructed
the jury on self-defense either before or after the elements of each offense and on
the requirement of unanimity.” Id.
{¶73} On appeal, Bender contends that the trial court erred by “not send[ing]
verdict forms back on the issue of self-defense, as the proper order is for the jury to
determine if the State met its burden beyond a reasonable doubt self-defense [sic]
and that must be a unanimous decision.” (Appellant’s Brief at 17). That is, Bender
argues that
Case No. 14-23-12
[t]he only way for [him] to know that each member of the jury
thoughtfully considered the issue of self-defense and whether the
State met its burden of beyond a reasonable doubt is for each member
of the jury to sign a verdict form that either the State did or did not
prove beyond a reasonable doubt that Mr. Bender did not act in self-
defense.
(Id.).
{¶74} We disagree with Bender’s proposition and join our sister appellate
districts in the conclusion that “[t]here is no requirement for a separate finding in
trials with claims of self-defense.” [CITATION]. Accord [CITATION]. See also [CITATION]. Therefore, the absence of a separate verdict form regarding
Bender’s self-defense claim was not error, let alone plain error. Accord Smith at ¶
48.
{¶75} For these reasons, Bender’s third, fourth, and fifth assignments of error
are overruled.
Seventh Assignment of Error
The Trial Court Erred When It Sentenced Appellant To An
Indefinite Sentence: Reagan Tokes.
{¶76} In his seventh assignment of error, Bender argues that his sentence,
imposed under Ohio’s current sentencing scheme (commonly known as the “Reagan
Tokes Law”), is unconstitutional.
Case No. 14-23-12
Standard of Review
{¶77} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” [CITATION],
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting [CITATION], paragraph three of the
syllabus.
Analysis
{¶78} In this case, Bender challenges the constitutionality of the Reagan
Tokes Law—namely, Bender alleges that the Reagan Tokes Law violates his
constitutional right to a trial by jury in addition to violating the separation-of-powers
doctrine and due-process clause of the Ohio and United States Constitutions.
[SEGMENT 17]
Imperatively, not only has this court rejected similar facial- and as-applied-
constitutional challenges to the Reagan Tokes Law, but the Supreme Court of Ohio
recently endorsed the constitutionality of the Reagan Tokes Law. Accord [CITATION], ¶ 41. We decline to diverge from such
formidable precedent. Accordingly, Bender’s sentence is not contrary to law.
{¶79} Bender’s seventh assignment of error is overruled.
Case No. 14-23-12
{¶80} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and MILLER, J., concur.
/hls
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-23-27
PLAINTIFF-APPELLEE,
v.
KAREN MORGAN, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 14-23-28
PLAINTIFF-APPELLEE,
v.
KAREN MORGAN, OPINION
DEFENDANT-APPELLANT.
Appeals from Union County Common Pleas Court
Trial Court Nos. 23-CR-0052 and 23-CR-0006
Judgments Affirmed
Date of Decision: February 20, 2024
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee Case No. 14-23-27 and 14-23-28
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Karen S. Morgan (“Morgan”) appeals the
judgments of the Union County Court of Common Pleas, alleging that the trial court
erred in the process of imposing a sentence in these cases and that she was denied
her right to the effective assistance of counsel. For the reasons set forth below, the
judgments of the trial court are affirmed.
Facts and Procedural History
{¶2} Morgan appeals two cases. In Case No. 23-CR-06, Morgan was
indicted on one count of criminal trespass in violation of [CITATION], a
fourth-degree misdemeanor; one count of burglary in violation of [CITATION],
a first-degree felony; and one count of petty theft in violation of
[CITATION], a first-degree misdemeanor. On May 12, 2023, Morgan pled
guilty to the three charges against her. The trial court then imposed an aggregate,
indefinite prison term of two to three years.
{¶3} In Case No. 23-CR-52, Morgan was indicted on one count of trafficking
in cocaine in violation of [CITATION], a first-degree felony, and one count
of trafficking in cocaine in violation of [CITATION], a fourth-degree felony.
On May 18, 2023, Morgan pled guilty to both of the charges against her. The trial
court imposed an aggregate, indefinite prison term of six to nine years to be served
consecutively to the sentence imposed in Case No. 23-CR-06.
Case No. 14-23-27 and 14-23-28
{¶4} Morgan filed her notices of appeal on July 13, 2023 and July 19, 2023.
On appeal, she raises the following two assignments of error:
First Assignment of Error
The trial court erred when it imposed a greater than minimum
sentence in the trafficking in cocaine case after finding the factors
in support of a minimum sentence in the burglary case, then
ordering the trafficking sentence to be served consecutive to the
sentence in the burglary case.
Second Assignment of Error
Appellant was deprived [of] effective assistance of counsel.
First Assignment of Error
{¶5} Morgan asserts that the trial court erred (1) by not imposing the
minimum prison term in Case No. 23-CR-52 and (2) by ordering her sentence in
Case No. 23-CR-52 to be served consecutively to her sentence in Case No. 23-CR-
06.
Standard of Review
{¶6} R.C. 2953.08(G)(2) establishes the scope of appellate review for felony
sentences. [CITATION], ¶ 64. Under R.C. 2953.08(G)(2), an appellate court may reverse or modify a sentence
only if there is clear and convincing evidence (1) that the trial court’s findings under
R.C. 2929.13(B), R.C. 2929.13(D), R.C. 2929.14(B)(2)(e), R.C. 2929.14(C)(4) or
R.C. 2929.20(I) are not supported by the record or (2) that the sentence is otherwise
contrary to law. [CITATION]
Case No. 14-23-27 and 14-23-28
1231, ¶ 1. “Clear and convincing evidence is that measure or degree of proof * * *
which will produce in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.” [CITATION], ¶ 12, quoting [CITATION] (1954), paragraph three of the syllabus.
Legal Standard
{¶7} “Trial courts have full discretion to impose any sentence within the
statutory range.” [CITATION], ¶ 25, quoting [CITATION], ¶ 9. But in the process of fashioning a sentence, trial courts are still required to
consider the principles and purposes of felony sentencing in R.C. 2929.11 in
addition to the seriousness and recidivism factors listed in R.C. 2929.12. [CITATION], ¶ 11-12.
{¶8} However, R.C. 2953.08(G)(2) “does not provide a basis for an appellate
court to modify or vacate a sentence based on its view that the sentence is not
supported by the record under R.C. 2929.11 and 2929.12.” [CITATION], ¶ 39. Thus, “[a] sentence imposed
within the statutory range is not contrary to law as long as the trial court considered
the purposes and principles of felony sentencing contained in R.C. 2929.11 and the
sentencing factors contained in R.C. 2929.12.” [CITATION], ¶ 9 (3d Dist.).
Case No. 14-23-27 and 14-23-28
{¶9} Further, prison terms for multiple offenses are generally served
concurrently. [CITATION], ¶
32, citing R.C. 2929.41(A). However, the trial court may impose sentences
consecutively if it makes the findings that are set forth as follows in R.C.
2929.14(C)(4):
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4). Thus, pursuant to this provision,
the trial court must find (1) that consecutive sentences are necessary
to protect the public or punish the offender (‘the necessity finding’);
(2) that consecutive sentences are not disproportionate to the
Case No. 14-23-27 and 14-23-28
seriousness of the offense (‘the proportionality finding’); and (3) that
one of the three factors listed in R.C. 2929.14(C)(4)(a-c) is applicable.
[CITATION]. R.C.
2953.08(G)(2)(a) expressly authorizes an appellate court to reverse or modify a
sentence if the findings made under R.C. 2929.14(C)(4) are clearly and
convincingly unsupported by the record. [CITATION].
Legal Analysis
{¶10} In her first argument, Morgan asserts that the trial court should have
[SEGMENT 18]
imposed the minimum prison term in Case No. 23-CR-52. Specifically, she argues
that her criminal history supports the imposition of a shorter sentence for the drug
trafficking offenses she committed. Morgan also notes that the trial court imposed
the minimum prison sentence in Case No. 23-CR-06. However, the record
establishes that the trial court expressly considered R.C. 2929.11 and R.C. 2929.12
in the process of imposing a sentence in Case No. 23-CR-52. Further, the
challenged prison terms fall within the authorized range. Thus, these arguments do
not establish that the prison terms imposed in Case No. 23-CR-52 are clearly and
convincingly contrary to law.
{¶11} In her second argument, Morgan asserts that the prison terms from
these two cases should not have been imposed consecutively.1 During sentencing,
1
Many of Morgan’s arguments are based upon the Ohio Supreme Court’s decision in [CITATION]. However, after she had filed her brief, the Ohio Supreme
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-passmore', which should be replaced with `[CITATION]`. Case No. 14-23-27 and 14-23-28
the trial court expressly made the findings required by R.C. 2929.14(C)(4) and
incorporated these findings into its judgment entry. Further, the presentence
investigation indicates that Morgan has a criminal record that went back to 1993.
She also committed the offenses in Case No. 23-CR-52 in February of 2023. Thus,
these offenses occurred in the same month that she had been released on her own
recognizance in Case No. 23-CR-06. The State also noted that the drug offense was
committed in the presence of a child and involved a substantial amount of drugs.
Having reviewed the relevant materials, we do not conclude that the trial court’s
R.C. 2929.14(C)(4) findings are unsupported by the record. Thus, Morgan’s second
argument does not establish that her sentence is clearly and convincingly contrary
to law. Accordingly, the first assignment of error is overruled.
Second Assignment of Error
{¶12} Morgan asserts that her conviction for burglary should be reversed
because defense counsel’s representation was ineffective.
Legal Standard
{¶13} Ohio law presumes that a licensed attorney’s representation was
competent. [CITATION] “In order to prove an ineffective assistance of counsel claim, the appellant must carry
the burden of establishing (1) that his or her counsel’s performance was deficient
Court vacated this decision on reconsideration. See [CITATION] We will examine this assignment of error in light of the prevailing law.
```plaintext
Case No. 14-23-27 and 14-23-28
and (2) that this deficient performance prejudiced the defendant.” [CITATION],
quoting [CITATION].
{¶14} To establish deficient performance, the appellant must demonstrate
that trial “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” [CITATION], quoting [CITATION]. To
establish prejudice, “the defendant must show a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.” [CITATION].
Legal Analysis
{¶15} Case No. 23-CR-06 arose from a situation in which Morgan took
$566.00 worth of goods out of a Walmart without tendering payment. While
investigating this incident, law enforcement discovered that Morgan had previously
received a conviction for stealing from a Walmart in Marion County, Ohio. As the
result of this earlier case, she was ordered not to enter Walmart stores. This prior
order resulted in Morgan being charged with burglary for the incident that gave rise
to Case No. 23-CR-06.
{¶16} On appeal, Morgan argues that defense counsel’s performance was
deficient “because a certified copy of the [Marion County judgment] entry was
never entered into evidence to prove that the language in the entry was clear and
Case No. 14-23-27 and 14-23-28
unequivocal * * *.” (Appellant’s Brief, 11). Morgan asserts that she may have been
charged with an offense that was less serious than burglary if the wording of the
order was ambiguous or vague. In response, the State points out that the Defense
received a copy of the “Walmart Trespass Notice” during discovery. (Doc. 13).
{¶17} This Court has held that, “where proof outside the record is required
to support a claim of ineffective assistance of trial counsel, the claim is ‘purely
speculative and * * * “it is not appropriate for consideration on direct appeal.”’”
[CITATION], quoting [CITATION], quoting [CITATION]. This assignment
of error rests on the wording of a document that is not in the record. Her brief
reveals the speculative nature of her argument when she asserts that the outcome of
this proceeding may have been different “if the language [in the order] was vague
and not pointed.” (Emphasis added.) (Appellant’s Brief, 11).
{¶18} In conclusion, Morgan’s speculative argument cannot establish the
prejudice prong of the Strickland test. Thus, she has failed to carry the burden of
establishing an ineffective assistance of counsel claim in this appeal. Accordingly,
the second assignment of error is overruled.
Case No. 14-23-27 and 14-23-28
Conclusion
{¶19} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgments of the Union County Court of Common Pleas
are affirmed.
Judgments Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/hls
If you could provide a specific part of the court ruling text, I will be able to process it and replace the court ruling citations as per your instructions.
[CITATION]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO, CASE NO. 9-22-13
PLAINTIFF-APPELLEE,
v.
ZIAIR GREEN, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 21-CR-070
Judgment Affirmed
Date of Decision: December 4, 2023
APPEARANCES:
Timothy B. Hackett and Victoria A. Ferr for Appellant
Raymond A. Grogan, Jr. for Appellee Case No. 9-22-13
MILLER, P.J.
{¶1} Defendant-appellant, Ziair E. Green (“Green”), appeals the February
28, 2022 judgment entry of sentence of the Marion County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} On January 18, 2021, law enforcement officers responded to numerous
reports of gunfire shot at 126 South Seffner Avenue (“126 S. Seffner Ave.”),
Marion, Ohio. When officers arrived at the scene, they found Ricco McGhee
(“McGhee”) lying on the sidewalk with a gunshot wound to his chest. McGhee was
transported to the hospital where he was subsequently pronounced dead. An
autopsy confirmed that his death was the result of a single gunshot wound to the
chest.
{¶3} McGhee had been married to Green’s mother, Kimberly Floyd
(“Floyd”), for many years and was the only father figure in the household.
However, McGhee and Floyd were separated by October 2020. Nonetheless,
McGhee and Floyd continued to communicate off-and-on despite their separation
and McGhee’s recent engagement to Lashawn Mosley (“Mosley”).
{¶4} On January 18, 2021, McGhee spent the day in Columbus with Mosley.
Eventually the pair returned to Marion where they visited friends to watch a sporting
game, drink alcohol, and relax. Throughout the day and into the night, McGhee and
Floyd were in communication via text message. Later that night, McGhee drove his
vehicle, with Mosley as a passenger, to Floyd’s house at 126 S. Seffner Ave. When
Case No. 9-22-13
they arrived at the house at approximately 10:35 p.m., McGhee exited the driver’s-
side door and entered the unlocked house while Mosley waited in the vehicle. Inside
the house, McGhee and Floyd engaged in a confrontation.
{¶5} During the confrontation between McGhee and Floyd, Green exited
through the side door of the house with a firearm. Several minutes later, McGhee
emerged from the house and walked down the front porch steps onto the sidewalk.
There, he spotted Green, who was in possession of the firearm.
{¶6} Green subsequently fired two “warning shots” at McGhee and then
pointed the gun at McGhee and fired additional shots. McGhee was struck in the
chest by a bullet and fell to the ground. Green ran from the scene and went into
[SEGMENT 19]
hiding for several days. Mosley and Floyd rushed to McGhee and attempted to
render aid.
{¶7} On January 19, 2021, a complaint was filed in the Marion County Court
of Common Pleas, Family Division (“juvenile court”) charging 17-year-old Green
with one count of murder in violation of R.C. 2903.02(A) and one count of
aggravated murder in violation of R.C. 2903.01(A). That same day, the State filed
a motion to bind the case over to the Marion County Court of Common Pleas,
General Division, pursuant to Juv. R. 30. Green appeared for an initial appearance
on January 28, 2021, wherein he denied the allegations in the complaint.
{¶8} A probable cause hearing was held in the juvenile court on February 11,
2021. At the conclusion of the hearing, the judge found probable cause to believe
Case No. 9-22-13
that Green committed the offenses alleged in the complaint. Accordingly, the
juvenile court relinquished its jurisdiction over the matter and transferred the case
to the General Division of the Marion County Court of Common Pleas for
prosecution.
{¶9} On February 24, 2021, the Marion County Grand Jury indicted Green
on three counts: Count One of murder in violation of R.C. [CITATION], an
unclassified felony; Count Two of murder in violation of R.C. [CITATION], an
unclassified felony; and Count Three of felonious assault in violation of R.C.
[CITATION], a second-degree felony. Each of the counts also included a three-
year firearm specification pursuant to R.C. [CITATION] and R.C. [CITATION]. Green
appeared for arraignment on March 1, 2021 and entered pleas of not guilty to the
counts and specifications in the indictment. On March 17, 2021, Green retained
new counsel who entered notices of appearance. On March 23, 2021, Green filed a
notice of his intent to use self-defense or defense of others as a defense at trial.
{¶10} On April 19, 2021, Green filed a motion for funds to retain an expert
witness. The motion did not specify a dollar amount of the request. In a judgment
entry filed on April 20, 2021, the trial court deemed the motion filed outside the
time set by Crim.R. 12. Nonetheless, the trial court granted the defense $1,500 for
the purpose of retaining an expert and directed that further funds be authorized in
advance.
Case No. 9-22-13
{¶11} On April 20, 2021, Green filed a motion for leave to file several
pretrial motions instanter. Specifically, Green requested to file a motion to require
the State to disclose the victim’s criminal history and a motion to allow counsel to
review children’s services records. On April 22, 2021, the trial court denied the
motions. In its attendant judgment entry, the trial court found the motions were
untimely filed pursuant to Crim.R. 12. However, in the interest of justice, the trial
court reviewed the merits of the motions and denied them on that basis.
{¶12} On May 20, 2021, Green filed an additional motion for allowance of
monies to retain an expert witness. In his motion, Green requested an “initial
approval” of $9,000 for the proposed expert to examine Green. (Doc. No. 52). On
May 27, 2021, the trial court denied the motion. In its judgment entry, the trial court
found the motion was untimely and filed outside the timelines of Crim.R. 12 without
leave. Nevertheless, the trial court reviewed the merits of the motion and found that
Green failed to show how the expert would provide value and that alternative would
will provide Green with a defense in this case.
{¶13} On July 12, 2021, Green made a motion for the trial court to approve
a general evaluation of Green by District V Forensic Diagnostic Center for the
purposes of a referral to a specialist if necessary. The trial court granted Green’s
motion on July 14, 2021. On September 23, 2021, Green filed a motion for leave
to file a motion for allowance of monies to retain an expert witness for additional
evaluation of the defendant. On October 22, 2021, the trial court denied Green’s
Case No. 9-22-13
request to file the motion out of time and denied Green’s request for additional
defense experts at state expense.
{¶14} On January 21, 2022, the State filed a motion to exclude the testimony
of four defense witnesses (Deante Smith, Deandre Gale, Timothy Nelson, and
Dejaun Smith) listed in the defendant’s reciprocal discovery. Green filed a
memorandum in opposition to the State’s motion on January 26, 2022. The
following day, the trial court filed a judgment entry stating that it would give Green
the opportunity to proffer the testimony of the four witnesses outside the presence
of the jury for the trial court to determine whether their testimony would be
admissible.
{¶15} A jury trial commenced on February 1, 2022. On February 10, 2022,
the jury returned verdicts finding Green not guilty of Count One, but guilty of
Counts Two and Three, and their attendant specifications.
{¶16} At the sentencing hearing held on February 25, 2022, the trial court
found that Counts Two and Three merged for the purpose of sentencing. The State
elected to proceed to sentencing the more serious offense of murder charged in
Count Two and the trial court sentenced Green to a term of 15 years to life in prison
to be served consecutively to a term of 3 years for the attendant firearm specification
for an aggregate term of 18 years to life in prison.
{¶17} On March 25, 2022, Green filed his notice of appeal. He raises eight
assignments of error for our review.
Case No. 9-22-13
First Assignment of Error
The trial court violated Ziair Green’s constitutional right to
present a complete defense. Fifth, Sixth, and Fourteenth
Amendments, U.S. Constitution; Article I, Sections 1, 10, and 16,
Ohio Constitution; Crim.R. 16(B); Evid.R. 404(B), 405, 608,
616(A), 702.
{¶18} In his first assignment of error, Green argues that the trial court
violated his constitutional right to present a complete defense. Specifically, Green
claims the trial court prohibited him from presenting evidence that would have
undermined the credibility of the State’s witnesses and shown he acted in self-
defense. He also asserts that the trial court denied him the opportunity to present a
complete defense by denying his request for expert funds.
{¶19} The Supreme Court of Ohio has explained:
“[T]he Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’” [CITATION], quoting
[CITATION]. However, “[a] defendant’s right to present
relevant evidence is not unlimited, but rather is subject to reasonable
restriction.” [CITATION]. And states have a legitimate interest
in ensuring that triers of fact are presented with reliable evidence and
have “broad latitude under the Constitution to establish rules
excluding evidence from criminal trials” to further that goal. [CITATION]. Such “rules do not
abridge an accused’s right to present a defense so long as they are not
‘arbitrary’ or ‘disproportionate to the purposes they are designed to
serve’” and if they do not “infringe[] upon a weighty interest of the
accused.” [CITATION], quoting [CITATION]
Case No. 9-22-13
{¶20} Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of that
discretion and material prejudice. [CITATION], ¶ 62, citing [CITATION]. An abuse of discretion
implies that the trial court acted unreasonably arbitrarily, or unconscionably. [CITATION].
Children’s Services Records
{¶21} Green alleges he was denied the right to present a complete defense
due to the trial court’s denial of his motion to allow his counsel to review any
children’s services records relating to McGhee or Floyd. Specifically, Green argues
the trial court erred by denying his request to review children’s services records
without at least conducting an in-camera review of the records.
{¶22} On April 20, 2021, Green filed a motion for leave to file pretrial
motions instanter. Attached to that motion was a motion to allow counsel to review
records maintained by Marion County Children’s Services relating to McGhee or
Floyd. In a judgment entry filed on April 22, 2021, the trial court denied Green’s
motion for leave to file pretrial motions instanter. The trial court specified that
counsel was explicitly instructed not to file motions outside of Crim.R. 12(D)
without leave of the court and noted that Green provided no reasonable explanation
for the lateness of the motions. Nonetheless, the trial court addressed the merits of
[SEGMENT 20]
Green’s motion to review children’s services records and found that the records are
Case No. 9-22-13
not relevant to the instant case. The trial court specifically stated that it “will not
authorize a fishing expedition to defame or dehumanize the deceased [victim].”
(Doc. No. 30).
{¶23} A trial court has discretion to decide whether certain information is or
is not discoverable. See [CITATION], ¶ 13, citing [CITATION]. As
such, we will not disturb the trial court’s decision on that issue absent an abuse of
that discretion. Id.
{¶24} Crim.R. 16(B)(5) provides that a criminal defendant is entitled to
discovery of evidence which is “favorable to the defendant and material to either
guilt or punishment.” However, when the potential discovery involves children’s
services records, “this requirement comes into conflict with the confidentiality that
attaches to such records.” [CITATION], ¶ 85, citing [CITATION].
{¶25} The Supreme Court of the United States has held that “a defendant’s
due process right to a fair trial entitles him to an in camera inspection by the trial
court of confidential child services records to assess whether they contain evidence
that is material to the defendant’s guilt.” [CITATION], citing [CITATION]. This court has refined the rule in
Ritchie as:
[A] court may conduct an in camera inspection of child-abuse records
or reports and also has the inherent power to order disclosure of such
Case No. 9-22-13
records or reports where (1) the records or reports are relevant to the
pending action, (2) good cause for such a request has been established
by the person seeking disclosure, and (3) where admission of the
records or reports outweighs the confidentiality considerations set
forth in R.C. 5153.17 and R.C. 2151.421(H)(1).
(Emphasis sic.) [CITATION] at 585. See [CITATION] at ¶ 85.
{¶26} “‘However, the Richie court also held that a defendant may not require
the trial court to search through confidential records “without first establishing a
basis for his claim that it contains material evidence.”’” [CITATION], 5th Dist.
Stark No. 2017 CA 00199, 2018-Ohio-4805, ¶ 43, quoting [CITATION], 5th Dist.
Delaware No. 2005CAA01002, 2005-Ohio-5639, ¶ 68, quoting [CITATION] at 58, fn.15.
“‘“[A] defendant is entitled to the trial court’s in camera inspection of children
services agency records where the defendant shows that there is a reasonable
probability, grounded on some demonstrable fact, that the records contain material
relevant to the defense.”’” Id., quoting [CITATION] at ¶ 70, quoting [CITATION], 6th
Dist. Lucas No. L-94-272, 1996 WL 38784, *2 (Feb. 2, 1996).
{¶27} Here, we find that, in his motion to review children’s services records,
Green failed to show there was a reasonable probability, grounded on some
demonstrable fact, that the records he sought contained material evidence relevant
to his defense. First, we note that the record on appeal is not clear that the children’s
services records Green requests even exist. At the pretrial held on April 15, 2021,
defense counsel stated that he sent a subpoena to Children’s Services for “some
records that apparently do not exist.” (Apr. 15, 2021 Tr. at 6). The defense indicated
Case No. 9-22-13
its intention to refile the subpoena “requesting different records.” (Id.). Yet, the
record does not indicate that defense counsel actually refiled the subpoena
requesting the “different records.” In its judgment entry denying Green’s motion to
review children’s services records, the trial court, likewise, questioned the existence
of the records. (Doc. No. 30). It is at least plausible that Green would have been
aware of the existence of records relating to his mother and stepfather with himself
as the child-victim. Furthermore, Green’s trial counsel is in the best position to
know if such records exist, through his client, yet he was unable to establish the
existence of the records he sought, much less that the records, if they exist, contain
material evidence relevant to his defense. Because Green was unable to meet this
burden, we find that the trial court was not required to conduct an in camera
inspection of the records prior to overruling Green’s motion to review children’s
services records. See [CITATION] at ¶ 72.
Exclusion of Prior Bad Acts Testimony
{¶28} Green alleges that the trial court erred by excluding witness testimony
regarding specific instances of McGhee’s alleged abuse of Green and Floyd.
{¶29} Again, the admissibility of evidence is within the sound discretion of
the trial court. [CITATION], ¶ 11.
We review a trial court’s determination on the admission of evidence under an abuse
of discretion standard. [CITATION], ¶ 20.
Case No. 9-22-13
{¶30} Evid.R. 404 and 405 relate to the introduction of character evidence.
Evid.R. 404(A) provides that “[e]vidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity therewith
on a particular occasion.” However, Evid.R. 404(A)(2) provides several exceptions
to this general rule as it relates to the character of the victim. In pertinent part,
Evid.R. 404(A)(2) provides that:
Evidence of a pertinent trait of character of the victim of the crime
offered by the accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the victim offered by
the prosecution in a homicide case to rebut evidence that the victim
was the first aggressor is admissible[.]
Evid.R. 405, which governs the methods of proving character, states:
(A) In all cases in which evidence of character or a trait of character
of a person is admissible, proof may be made by testimony as to
reputation or by testimony in the form of an opinion. On cross-
examination, inquiry is allowable into relevant specific instances of
conduct.
(B) In cases in which character or a trait of character of a person is an
essential element of a charge, claim, or defense, proof may also be
made of specific instances of his conduct.
{¶31} In [CITATION], the Supreme Court of Ohio held that “Evid.R.
405(B) precludes a defendant from introducing specific instances of the victim’s
conduct to prove that the victim was the initial aggressor.” [CITATION]. The Court also noted that “[a] defendant may
successfully assert self-defense without resort to proving any aspect of the victim’s
character.” (Emphasis sic.) Id.
Case No. 9-22-13
{¶32} However, we have “interpreted Evid.R. 405 as permitting a defendant
to ‘testify about specific instances of the victim’s prior conduct known to the
defendant in order to establish the defendant’s state of mind.’” [CITATION], quoting [CITATION]. “The crucial element of a
self-defense claim is the defendant’s state of mind, not the character of the victim.”
[CITATION] at ¶ 59.
{¶33} Here, Green contends that the trial court erred by prohibiting
testimony regarding specific acts of violence perpetuated by McGhee toward Green
and Floyd. Defense counsel sought to present four possible defense witnesses:
Deante Smith, Deandre Gale, Timothy Nelson, and Dejaun Smith. According to
defense counsel, the individuals had witnessed instances of McGhee acting in a
violent manner toward Green in the months leading up to McGhee’s death. (Feb.
1-10, 2022 Tr. at 424-425). The trial court agreed that the proper procedure would
be for the defense to proffer the testimony of the four witnesses at the beginning of
the defense’s case-in-chief, so the trial court could make a decision on the
admissibility of the potential witnesses’ testimony at that time.
{¶34} However, Green chose not to proffer the testimony of the four
witnesses and instead conceded that the specific acts evidence to which they were
going to testify were not admissible. (Feb. 1-10, 2022 Tr. at 987). Accordingly, the
trial court never ruled on the admissibility of the witnesses’ potential testimony,
Case No. 9-22-13
and, thus, there is no decision on the admissibility of the potential witnesses’
testimony for us to review.
{¶35} Green also alleges the trial court erred by prohibiting testimony from
detectives regarding prior shootings at the home, and testimony from Floyd and
Dasani Hooks, Green’s sister, about the domestic violence Green and Floyd endured
at the hands of McGhee. However, despite the trial court’s repeated offer for the
defense to proffer the testimony, defense counsel made the strategic decision to not
[SEGMENT 21]
offer this additional testimony. Accordingly, we are not able to review the
admissibility of the potential testimony because it is not included in the record.
{¶36} “‘An alleged victim’s purported violent nature is not an essential
element of self-defense and therefore, witnesses other than the defendant have no
admissible basis for testifying to specific instances of violent conduct.’” [CITATION]
Furthermore, we note that a trial court’s Evid.R. 405(B) ruling is subject to harmless
error analysis. [CITATION] “The improper exclusion of evidence
is harmless where the remaining evidence provides overwhelming proof of a
defendant’s guilt.” Id. Accordingly, even if the trial court erred by informing the
parties that specific acts evidence were not admissible in a self-defense case, that
error is harmless because the State offered overwhelming evidence of Green’s guilt.
Case No. 9-22-13
{¶37} Moreover, a plethora of testimony regarding McGhee’s demeanor,
character, and reputation for violence was presented to the jury by a number of
witnesses. Specifically, Floyd and Green gave an account of the violent acts
McGhee allegedly engaged in on January 18, 2021, prior to his death, including
slamming Floyd against the wall and attempting to choke her and threatening Green.
Floyd testified that McGhee had a reputation for violence and that this reputation
for violence caused her to fear for herself and for Green. Green testified that
McGhee “has always been violent” and that he was “afraid” of McGhee on January
18, 2021. ([CITATION]). Hooks testified that she had been
around McGhee for a significant portion of her life and that she has experienced
behaviors from him that leads her to characterize living in a home with McGhee as
“[u]nhealthy.” ([CITATION]). Hooks also testified to McGhee’s reputation in
the community as a drug dealer who was angry, toxic, and a threat. ([CITATION]).
Moreover, several witnesses mentioned prior shootings that occurred at the
residence. Additionally, law enforcement officers acknowledged their familiarity
with McGhee through prior law enforcement contact. Mosley also testified that
McGhee served nearly seven years in prison. ([CITATION]). Thus, the jury heard
significant testimony regarding McGhee’s previous conduct and reputation. The
fact that there was violence in and about the home at the time that McGhee was
there was known to the jury. Perhaps most notably, the jury heard Green’s
testimony that he was afraid of McGhee on the day of the shooting and “feared for
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[his] life” during the final encounter. (Id. at 1261). Accordingly, based on the
record in front of us, we do not find that the potential exclusion of some testimony
regarding specific acts of violence would have affected the outcome of the trial and
was “essentially meaningless.” [CITATION] at ¶ 21.
Expert Witness Funding
{¶38} Green argues that he was denied the right to present a complete
defense due to the trial court’s denial of Green’s motions for expert funding. “The
authority to fund defense experts rests within the sound discretion of the trial court.”
[CITATION]. An
abuse of discretion implies that the court’s attitude was unreasonable, arbitrary, or
unconscionable. [CITATION].
{¶39} “As a matter of due process, indigent defendants are entitled to receive
the ‘raw materials’ and the ‘“basic tools of an adequate defense,”’” which may
include the provision of expert assistance. [CITATION], quoting [CITATION], quoting
[CITATION]. “‘Due process, as
guaranteed by the Fifth and Fourteenth Amendments to the United States
Constitution and Section 16, Article I of the Ohio Constitution, does not require the
government to provide expert assistance to an indigent criminal defendant in the
absence of a particularized showing of need.’” [CITATION], quoting [CITATION]. “‘Nor does
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it require the government to provide expert assistance to an indigent criminal
defendant upon mere demand of the defendant.’” [CITATION], quoting Mason at 150.
{¶40} The statutory authority allowing the state to provide funds for an
indigent defendant’s expert is R.C. 2929.024, which provides, in pertinent part:
[I]f the court determines that investigation services, experts, or other
services are reasonably necessary for the proper representation of a
defendant charged with aggravated murder at trial or at the sentencing
hearing, the court shall authorize the defendant’s counsel to obtain the
necessary services for the defendant, and shall order that payment of
the fees and expenses for the necessary services be made in the same
manner that payment for appointed counsel is made pursuant to
Chapter 120 of the Revised Code. If the Court determines that the
necessary services had to be obtained prior to court authorization for
payment of the fees and expenses for the necessary services, the court
may, after the services have been obtained, authorize the defendant’s
counsel to obtain the necessary services and order that payment of the
fees and expenses for the necessary services be made as provided in
this section.
“In noncapital cases, however, there is no authority mandating the payment of an
indigent defendant’s expert fees.” [CITATION]. “Ohio courts have nonetheless applied the factors used by
the Ohio Supreme Court in resolving requests for state-funded experts pursuant to
R.C. 2929.024 in non-capital cases.” [CITATION]. “The relevant factors in resolving the
appointment of a state-funded expert are: (1) the value of the expert assistance to
the defendant’s proper representation at trial; and (2) the availability of alternative
devices that fulfill the same functions as the expert assistance sought.” [CITATION].
{¶41} Furthermore, the Supreme Court of Ohio has held that “[d]ue process,
as guaranteed by the Fifth and Fourteenth Amendments to the United States
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Constitution and Section 16, Article I of the Ohio Constitution, requires that an
indigent criminal defendant be provided funds to obtain expert assistance at state
expense only where the trial court finds, in the exercise of a sound discretion, that
the defendant has made a particularized showing (1) of a reasonable probability that
the requested expert would aid in his defense, and (2) that denial of the requested
expert assistance would result in an unfair trial.” [CITATION]
{¶42} When a defendant requests expert funds, the burden is on the
defendant to demonstrate the reasonableness of the request. [CITATION] “A
defendant must provide a trial court with facts to establish a particularized need for
expert assistance and must demonstrate more than a mere possibility of assistance
to receive an expert witness at the state’s expense.” [CITATION] “‘At a minimum, the indigent defendant must present the trial judge with
sufficient facts with which the court can base a decision.’” [CITATION] “Undeveloped
assertions that the proposed assistance would be useful to the defense are patently
inadequate.” Id.
{¶43} Here, Green argues that the trial court abused its discretion by denying
several of his attempts to secure expert funds. After reviewing the record and the
relevant law, we find Green’s arguments to be without merit.
====== End of Document ====== Case No. 9-22-13
{¶44} On April 19, 2021, Green filed a motion for allowance of monies to
retain an expert witness. In the motion, Green stated that he contacted a forensic
psychologist, Dr. Bob Stinson, out of Columbus, Ohio, “who would testify
regarding the potential Battered Person Syndrome and effects of abuse at trial * * *
and the affects abuse may have had on the Defendant at the time the incident giving
rise to this matter occurred.” ([CITATION]). Green did not request or specify the
amount of funds he was requesting.
{¶45} The following day, the trial court noted that the motion was filed
outside the time limits set by Crim.R.12(D) without leave of court.1 ([CITATION]).
The trial court specifically stated that it explicitly instructed the parties not to file
motions outside the time limit set by the rule without leave of Court. (Id.).
Nonetheless, the trial court “reluctantly” granted Green up to $1,500 for the purpose
of retaining an expert. (Id.). The trial court noted that “[a]ny further amounts must
be authorized in advance or they will not be approved.” (Emphasis sic.) (Id.). The
trial court further noted Green’s motion “gives no guidance as to an amount needed,
but merely ask[ed] [the] Court to write a blank check.” (Id.). The trial court noted
that it would “not be so reckless with taxpayer funds.” (Id.). The trial court further
stated that “[t]he granting of these funds is not an indication that any testimony
1
On April 20, 2021, after the trial court filed its judgment entry noting the tardiness of Green’s motion for
allowance of monies, in response thereof, Green filed a motion for leave to file pretrial motions instanter.
([CITATION]).
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generated from these funds is relevant or admissible or even that Counsel has made
[SEGMENT 22]
a showing that an expert is even necessary in this case.” ([CITATION]).
{¶46} On May 5, 2021, Green filed a motion for a continuance of the jury
trial on the grounds that the expert witnesses contacted by the defense were likely
to need more time to evaluate Green prior to trial. At a pretrial held on May 7, 2021,
the trial court and the parties discussed the defense’s progress in procuring an expert
witness. The defense stated that it consulted a new potential expert witness, Dr.
Davis, who informed counsel he needed between $2,500 to $3,000 to “get started.”
(May 7, 2021 Tr. at 3-5) The trial court requested the defense provide the trial court
with information regarding the potential expert’s estimated fees for (1) interviewing
Green and rendering an opinion, (2) rendering the opinion in writing, and (3)
testifying at trial. ([CITATION]). The trial court indicated its preference to approve the
fees in incremental amounts so that if the defense determines that they do not want
or need some of the services, the court is “not already on the hook” for the expense.
([CITATION]). The court remarked that requesting and approving expert fees in
increments has been the court’s practice for 20 years. ([CITATION]). The court
requested the defense file a motion informing the court whether the $1,500 it
previously allotted in funds would be sufficient for the potential expert witness to
examine Green and render an opinion. ([CITATION]).
{¶47} At the pretrial, the parties also discussed Green’s pending motion for
a continuance for the purpose of pursing an expert witness. The trial court
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acknowledged that Green “has an absolute right to a full defense” and that an expert
consultation is “appropriate” in this case. ([CITATION] at 13). On that basis, the trial court
granted Green’s motion for a continuance. ([CITATION] at 19).
{¶48} On May 20, 2021, Green filed a motion styled “Amended Motion for
Allowance of Monies to Retain Expert Witness and Motion to Continue Pretrial and
Trial.” (Doc. No. 52). In the motion, Green stated that he had been in contact with
yet another prospective expert, Dr. Jolie S. Brams, a forensic psychologist who
could testify regarding potential battered person syndrome, the effects of abuse, and
the effects abuse may have had on Green at the time of the relevant conduct. Green
stated that the potential expert required an “an initial approval of $9,000.00.” (Doc.
No. 52).
{¶49} On May 27, 2021, the trial court filed a judgment entry denying
Green’s motion on the grounds that: (1) although styled as an “amended” motion,
Green’s filing was a new motion seeking new funds for a new expert and is,
therefore, untimely and filed without leave pursuant to Crim.R. 12(D); (2) Green
failed to show the expert would provide value; (3) alternative means will provide
Green with a defense; (4) the proposed expert is not willing to prepare for trial in a
timely manner; and (5) the expert has not justified the amount requested nor
articulated if $9,000 would address the costs of trial preparation and testimony.
(Doc. No. 55). The trial court noted that the $9,000 requested in Green’s motion “is
the highest request for an appointed expert in a non-capital case [it] has ever seen.”
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([CITATION]). The court further stated that the request did not provide an explanation as to
whether the amount will cover the cost of the diagnostics or “if it is a down payment
on a much larger request that will come later.” ([CITATION]). The court further found that
Green failed to show that the proposed expert would provide value or that there were
no alternative devices available to fulfill the same function. ([CITATION]).
{¶50} On June 29, 2021, Green’s trial counsel filed another motion to
continue the jury trial due to trial counsel’s continued search for an expert witness.
At the pretrial held on July 5, 2021, the trial court and the parties discussed Green’s
continued search for an expert witness and his pending motion to continue. While
addressing the matter, the trial court stated:
I want to make it clear. The Court, if an expert is needed in this case,
certainly wants the defense to get one. But it seems to me that the
defense is shopping for a particular type of expert and having trouble
finding one and that the ones that they have found kind of want a carte
blanche with regard to how much money they’re going to be able to
make off of this case and also want to dictate to the Court a schedule.
And this Court controls its own schedule. * * * I’m inclined to give
[the defense] some time, but it’s not endless time.
(July 5, 2021 Tr. at 4-5).
{¶51} Green’s trial counsel then stated that the pending request for a
continuance would likely be the last continuance it requested. ([CITATION] at 5). The
defense explained that it was in contact with District V Forensic Diagnostic Center.
The trial court indicated its approval of trial counsel’s plan to start with a more
general practitioner through District V Forensic Diagnostic Center and to request
additional evaluation and evaluations if indicated. ([CITATION] at 6-9). Defense counsel
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stated that it wanted to make sure Green has the best possible defense and that
counsel is “very appreciative of the Court offering funds on our request to make that
happen.” ([CITATION]). The trial court then granted Green’s pending motion for a
continuance and granted leave for Green to file a motion for Green to be evaluated
by District V Forensic Diagnostic Center. ([CITATION]).
{¶52} On July 12, 2021, Green filed a motion seeking the trial court to
approve a general psychological evaluation of Green by District V Forensic
Diagnostic Center “for the purposes of a referral to a specialist if necessary.” (Doc.
No. 64). On July 14, 2021, the trial court approved the motion. (Doc. No. 65).
{¶53} At a pretrial held on September 13, 2021, the parties were in receipt
of the general psychological evaluation dated September 8, 2021 that was prepared
by Dr. Alison Houle following her evaluation of Green. ([CITATION]). The trial court stated that the evaluation made several diagnostic claims including
mild cannabis use disorder and post-traumatic stress disorder (“PTSD”). ([CITATION]).
However, the court noted it did not see any mention of battered-person syndrome as
a diagnosis and that there was nothing in the report to lead the trial court to believe
that further evaluation along those lines was necessary. ([CITATION]). Defense counsel
indicated that, based on the report, it “believes the door is open” for further
evaluation. ([CITATION]). The trial court then requested that Green file a written
motion indicating the basis for additional evaluation. ([CITATION]).
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{¶54} On September 23, 2021, Green filed a motion to continue the jury trial
on the basis of potential additional expert evaluation. (Doc. No. 69). That same
day, Green also filed a motion for leave to file pretrial motions instanter. Attached
to that motion was a proposed motion for allowance of monies to retain an expert
witness for additional evaluation of Green. In the motion, Green requested the trial
court approve funds for having Green further evaluated “by an expert who can
extrapolate deeper issues surrounding [his] diagnosis” by Dr. Houle. (Doc. No. 70).
{¶55} At the pretrial held on October 21, 2021, the parties addressed Green’s
pending motions. The trial court granted Green’s motion for a continuance. ([CITATION]). Then, the trial court addressed Green’s pending motion for
funds for additional expert evaluation. ([CITATION]). The trial court stated that the
psychological evaluation does not recommend another specialist or psychologist
examine Green for further diagnosis. ([CITATION]). The court indicated its opinion that
the defense has not established grounds for the trial court to grant an additional
expert evaluation and witness but that it would take the matter under advisement.
([CITATION]). Defense counsel stated that it was in contact with District V Forensic
Diagnostic Center regarding the possibility of a witness correlating the diagnosis
between PTSD and battered person’s syndrome. ([CITATION]). The trial court
indicated that if counsel filed supplemental briefing on the matter based on the
conversation with an expert, then the trial court would consider that. ([CITATION]).
The following day, the trial court filed its judgment entry denying Green’s request
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for additional experts on the grounds that defendant had not met his burden to show
an additional expert is appropriate and had not shown significant value in requesting
a second defense expert to seek a diagnosis. (Doc. No. 105).
{¶56} At a January 28, 2021 pretrial and motion hearing, the defense
[SEGMENT 23]
indicated Dr. Houle was anticipated to proffer testimony during the trial. (Jan. 28,
2022 Tr. at 60). The defense informed the trial court of Dr. Houle’s hourly rate to
appear in court, which the trial court agreed to pay. (Id. at 61).
{¶57} After reviewing the record, we reject Green’s argument that the trial
court erred by denying his request for expert funding. Green contends that the trial
court’s denial of his requests for expert funds was “unreasonable” and “arbitrary.”
(Appellant’s Brief at 21). However, the record indicates the trial court was willing
to allocate funds for expert evaluation of Green within reasonable parameters; and,
in fact, the trial court did grant several of Green’s motions for expert evaluations
and continuances for the purpose of allowing Green’s trial counsel to consult
potential expert witnesses.
{¶58} Additionally, the trial court expressed a continued willingness to
consider Green’s requests for expert evaluations and funding provided that Green’s
defense counsel provided the court with information indicating that the evaluations
were reasonable and were reasonably calculated to assist in Green’s defense.
However, Green never provided the trial court with information indicating the scope
of its request and articulable reasons for the requests. Nor did trial counsel address
Case No. 9-22-13
the availability or lack thereof of alternative devices that fulfill the same functions
as the expert assistance sought.
{¶59} Green was evaluated by an expert who diagnosed him and provided
treatment recommendations. Ultimately, the evaluation did not produce the
diagnosis of battered person syndrome that Green’s trial counsel continued to seek.
Yet, Green never demonstrated a particularized need for such an expert. “Asserting
the mere possibility that an expert would be of assistance did not satisfy appellant’s
initial burden to establish the reasonableness of his request.” See [CITATION],
¶ 15. Our review of the record indicates the trial court was more than willing to provide funds for experts,
provided the defense could provide a breakdown of the anticipated expenses and
could demonstrate that the expert was reasonably necessary to advance the defense’s
case. However, Green was unable or unwilling to satisfy his initial burden to
establish the reasonableness of his request. Accordingly, we do not find that the
trial court abused its discretion by denying Green’s motions for allocation of expert
funds.
Exclusion of Dr. Houle’s Report and Testimony
{¶60} Green argues that the trial court erred by excluding Dr. Houle’s report
and witness testimony at trial.
{¶61} With respect to Dr. Houle’s report, we note that neither party moved
to admit the report. In fact, the defense specifically remarked it had “no plans” to
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admit Dr. Houle’s evaluation. [CITATION]. Accordingly, the trial
court did not make a decision regarding the admissibility of Dr. Houle’s report for
us to review. Furthermore, the document is not part of the record on appeal, and, as
such, we cannot review it.
{¶62} Regarding Dr. Houle’s testimony, Green argues the trial court erred
by not admitting Dr. Houle’s expert testimony. At trial, the defense proffered the
testimony of Dr. Houle. In her proffered testimony, she stated that she performed a
complete psychological evaluation of Green. [CITATION]. Following her
evaluations, she diagnosed Green with PTSD and cannabis use disorder. [CITATION]
{¶63} Dr. Houle spoke generally about the impact of adverse childhood
experiences on an individual and the possible impact those experiences can have for
children’s risk of mental health symptoms, PTSD, depression, anxiety, and
substance abuse. [CITATION]. She testified that when she
evaluated Green, she determined that he had experienced some adverse childhood
experiences. [CITATION].
{¶64} Dr. Houle stated that she reviewed the discovery and is aware of what
happened on January 18, 2021; however, she did not specifically evaluate Green’s
mental state on that day. [CITATION]. She testified that, generally, children
exposed to repeated trauma have a higher likelihood of perceiving something as
being dangerous when it is not or, conversely, failing to recognize an actual threat.
Case No. 9-22-13
[CITATION]). Dr. Houle testified that, in her professional experience, Green’s
childhood experiences shaped his view of the world and how he responds to other
people. [CITATION]). Dr. Houle also spoke, in general terms, about brain
development and the result of trauma on brain development. [CITATION]).
{¶65} On cross-examination, Dr. Houle stated that she did not complete an
evaluation for NGRI in this case; and, accordingly, never evaluated Green’s mental
state at the time of this offense. [CITATION]). She stated that during
her conversations with Green, she gathered that Green has unfavorable opinions of
McGhee. [CITATION]). She stated that Green resented McGhee, was jealous of
him, and believed that McGhee was loved more by his mother than was Green. [CITATION]).
{¶66} Dr. Houle stated that she is familiar with the term “battered woman
syndrome,” and that it is not a subtype or subset of PTSD. [CITATION]). She
clarified that she did not specifically evaluate Green for battered child syndrome.
[CITATION]). She also stated that her report could not be of assistance to the trier of
fact with respect to determining Green’s guilt or innocence. [CITATION]). In her
proffered redirect examination, Dr. Houle stated that Green’s childhood experiences
could have contributed to how he reacted on January 18, 2021. [CITATION]).
{¶67} At the conclusion of Dr. Houle’s proffered testimony, the trial court
determined that her testimony was not admissible, and Dr. Houle did not testify to
the jury.
Case No. 9-22-13
{¶68} After reviewing the record, we do not find the trial court abused its
discretion by excluding Dr. Houle’s testimony. Dr. Houle did not evaluate Green
for battered child syndrome and testified that she was not qualified to make that
diagnosis. Furthermore, Dr. Houle never evaluated Green’s mental state on the day
of the incident and her proffered testimony was too general to be of relevance to
assist the jury in determining Green’s guilt or innocence.
Impeachment with Prior Inconsistent Statements
{¶69} Green contends that the trial court erred by not allowing him to
impeach Mosley with prior inconsistent statements. Specifically, Green alleges the
trial court should have allowed him to impeach Mosley with her statement from the
preliminary hearing where she testified that McGhee walked down the stairs and
turned directly toward Green. Green also alleges the trial court erred by not
allowing him to impeach Mosley with a recorded cell-phone video depicting Mosley
telling Floyd that she erased cell phone evidence and lied to the police on the scene
because she had hidden drugs in Floyd’s couch the night of McGhee’s death.
{¶70} Evid.R. 613, which governs impeachment by self-contradiction,
provides as follows:
(A) In examining a witness concerning a prior statement made by the
witness, whether written or not, the statement need not be shown nor
its contents disclosed to the witness at that time, but on request the
same shall be shown or disclosed to opposing counsel.
(B) Extrinsic evidence of a prior inconsistent statement by a witness
is admissible if both of the following apply:
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(1) If the statement is offered solely for the purpose of impeaching the
witness, the witness is afforded a prior opportunity to explain or deny
the statement and the opposite party is afforded an opportunity to
interrogate the witness on the statement or the interests of justice
otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action
other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence under Evid.R.
608(A), 609, 616(A), or 616(B);
(c) A fact that may be shown by extrinsic evidence under the common
law of impeachment if not in conflict with the Rules of Evidence.
(C) During examination of a witness, conduct of the witness
inconsistent with the witness’s testimony may be shown to impeach.
If offered for the sole purpose of impeaching the witness’s testimony,
extrinsic evidence of the prior inconsistent conduct is admissible
under the same circumstances as provided for prior inconsistent
statements by Evid.R. 613(B)(2).
{¶71} After reviewing the record, we do not find that the trial court erred by
not admitting the extrinsic evidence of prior inconsistent statements to impeach
Mosley.
{¶72} The video of Floyd and her friends confronting Mosley regarding
allegedly hiding drugs in Floyd’s couch was proffered by the defense as Defense
Exhibit I and is included in the record. After reviewing the video in concert with
our review of the record, we find that the trial court did not err by failing to admit
the video as a means of impeaching Mosley. Although the video may have been
[SEGMENT 24]
offered “solely for the purpose” of impeaching Mosley, pursuant to Evid.R.
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613(B)(1), it was of no other “consequence to the determination of the action.”
Whether Mosley hid drugs in Floyd’s couch while the women were talking to the
police following the shooting on January 18, 2021 is immaterial to the ultimate issue
of Green’s potential criminal liability for McGhee’s death. See [CITATION]. Moreover,
Mosley admitted that although she “was drinking that night” and could not recall
the specifics, she did tell Floyd that she put something in her house that night “to
get her out of my face.” (Feb. 1-10, 2022 Tr. at 794-795). “If a witness admits
making a conflicting statement, there is no need for extrinsic evidence.” [CITATION].
{¶73} Moreover, our review of the video indicates that its prejudicial value
outweighs its probative value.2 The video presents an intimidating situation in
which Mosley is confronted by multiple people, including Floyd, who are screaming
at Mosley and trying to get her to admit that she hid a phone from law enforcement.
The video is also replete with racial epithets and offensive language.
{¶74} With respect to the transcript of the preliminary hearing, our review of
the record indicates that, on cross-examination, defense counsel read the relevant
2
In addition to the trial court’s concern that the prejudicial value of Defense’s Exhibit I outweighs its
probative value, the trial court expressed concern that Green’s trial counsel received the video mere days
before the commencement of trial, despite the recording happening approximately six months prior.
Although the record indicates defense counsel turned over the recording to the State soon after the video
came into the defense’s possession, the State and trial court expressed concern regarding the delayed
disclosure of the potential evidence.
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portion of the transcript of the preliminary hearing in open court. Accordingly, the
jury heard Mosley’s alleged inconsistent statement.
Conclusion
{¶75} For the foregoing reasons, we do not find that Green was denied his
constitutional right to present a complete defense. Green’s first assignment of error
is overruled.
Second Assignment of Error
The trial court erred and violated Ziair’s right to a fair trial when
it instructed the jury that Ohio’s stand-your-ground statute did
not govern Ziair’s trial, which took place after the statute’s
effective date. R.C. 2901.09(C).
Third Assignment of Error
Even under the former statute, the trial court erred when it
instructed the jury that Ziair had an “on-going” duty to retreat.
R.C. 2901.05; R.C. 2901.09.
{¶76} For ease of discussion, we will address Green’s second and third
assignments of error together. In his second assignment of error, Green argues the
trial court erred by not giving the jury a self-defense instruction consistent with the
changes to R.C. 2901.09 enacted in 2020 Am.S.B. 175(“S.B. 175”), the “stand your
ground” law.
{¶77} “Trial courts have a responsibility to give all jury instructions that are
relevant and necessary for the jury to properly weigh the evidence and perform its
duty as the factfinder.” [CITATION] “Requested jury instructions should ordinarily be given if
Case No. 9-22-13
they are correct statements of law, if they are applicable to the facts in the case, and
if reasonable minds might reach the conclusion sought by the requested instruction.”
[CITATION]. “The relevant
principle for jury instructions is not one of abstract correctness, but is whether an
instruction—even if a correct statement of law—is potentially misleading.” [CITATION].
{¶78} As a general matter, whether to give a particular jury instruction is
within the trial court’s discretion, which an appellate court will not disturb absent
an abuse of discretion. [CITATION]. However, a defendant who fails to object to the trial court’s decision
regarding jury instructions forfeits all but plain error on appeal. See [CITATION].
We note that Green’s
trial counsel did not object to the trial court’s determination that the amended
version of R.C. 2901.09 did not apply to the instant case because the offense
occurred prior to the effective date of the amended statute. However, Green’s
counsel did object to the trial court’s express instruction that stand your ground was
not applicable in the case and would have preferred that the trial court not include
any reference to stand your ground in the jury instructions. Green’s counsel also
objected to the trial court instructing the jury that Green had a duty to retreat.
{¶79} In contrast, “[w]hether the jury instructions correctly state the law is a
question that is reviewed de novo.” [CITATION].
Case No. 9-22-13
4347, ¶ 135. “An incorrect or inadequate instruction that misleads the jury or
otherwise prejudices the defendant constitutes reversible error.” [CITATION], citing [CITATION].
{¶80} Here, the offenses occurred on January 18, 2021 and the jury trial
commenced on February 1, 2022. R.C. 2901.09 was amended on April 6, 2021.
Thus, the statute was amended after the offense but prior to the commencement of
trial.
{¶81} Prior to the April 6, 2021 amendments, R.C. 2901.09 stated:
a person who lawfully is in that person’s residence has no duty to
retreat before using force in self-defense, defense of another, or
defense of that person’s residence, and a person who lawfully is an
occupant of that person’s vehicle or who lawfully is an occupant in a
vehicle owned by an immediate family member of the person has no
duty to retreat before using force in self-defense or defense of another.
{¶82} The current version of R.C. 2901.09, as amended by S.B. 175,
provides, in pertinent part:
(B) For purposes of any section of the Revised Code that sets forth a
criminal offense, a person has no duty to retreat before using force in
self-defense, defense of another, or defense of that person’s residence
if that person is in a place in which the person lawfully has a right to
be.
(C) A trier of fact shall not consider the possibility of retreat as a
factor in determining whether or not a person who used force in self-
defense, defense of another, or defense of that person’s residence
reasonably believed that the force was necessary to prevent injury,
loss, or risk to life or safety.
(Emphasis added.)
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{¶83} Here, the parties disagree whether the version of R.C. 2901.09
effective at the time of the offense or the one effective at the time of trial applied to
the instant case. Green argues the trial court should have given jury instructions
consistent with the amended version of R.C. 2901.09, the version of the statute that
was in effect at the time of trial. Conversely, the State contends that the version of
the statute effective at the time of the offense applied in the instant case; and, thus,
the trial court did not err by instructing the jury in accordance therewith.
{¶84} We have not yet addressed whether Ohio’s stand-your-ground law
applies in situations, like the present one, where the conduct occurred prior to the
statute’s effective date of April 6, 2021 but the trial occurred after the effective date.
However, other appellate districts have considered the question and come to
different conclusions. At least four appellate districts –the First, Second, Eighth,
and Ninth- have held that Ohio’s stand your ground law does not apply in situations
where the conduct occurred prior to April 6, 2021. [CITATION].
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[CITATION]; State v.
[CITATION], ¶ 69-72, appeal allowed,
[CITATION]; State v. [CITATION], ¶ 25-28, appeal allowed, [CITATION], stay lifted, [CITATION]; State v. [CITATION], ¶ 79, appeal not allowed, [CITATION]; State v. [CITATION], ¶ 15-30, appeal accepted, [CITATION].
Conversely, several appellate districts, including the Fifth and Eleventh District
Courts of Appeals, have found that the stand-your-ground law applies in situations
where the trial occurs after the effective date of the statute, regardless of when the
underlying conduct occurred. See State v. [CITATION], ¶ 51-52; State v. [CITATION], ¶ 27-28, motion to certify allowed, [CITATION], and appeal allowed, [CITATION]. The
question of whether R.C. 2901.09, as amended to eliminate the duty to retreat for
self-defense, applies to trial held after the effective date of the act, regardless of the
date of the offense, is currently pending in the Supreme Court of Ohio. State v.
[SEGMENT 25]
[CITATION], ¶ 25-30, appeal
allowed, [CITATION], stay lifted, [CITATION].
Case No. 9-22-13
{¶85} “A statute may not be applied retroactively unless the General
Assembly expressly makes it retroactive.” [CITATION], ¶ 10, citing [CITATION], ¶ 9.
“A statute is presumed to be prospective in its operation unless expressly made
retrospective.” R.C. 1.48; [CITATION] at ¶ 9. “To overcome the presumption that the
statute applies prospectively, it must ‘clearly proclaim its retroactive application.’”
[CITATION] at ¶ 38, quoting [CITATION] at ¶10. However, even “when the legislature has made
a statute expressly retroactive, the determination whether that statute is
unconstitutionally retroactive in violation of the Ohio Constitution depends on
whether it is ‘remedial’ or ‘substantive’—if the law is ‘remedial,’ then its retroactive
application is constitutional; if the law is substantive, then its retroactive application
is unconstitutional.” [CITATION] at ¶ 10, citing [CITATION], superseded by statute on other grounds as
stated in [CITATION].
“[L]aws affecting rights * * * are substantive in nature.” Id.
{¶86} After reviewing the relevant appellate decisions that have addressed
the issue, we are persuaded by the reasoning of the First, Second, Eighth, and Ninth
appellate districts who have found that the amendments to R.C. 2901.09(B) are
substantive in nature, and, accordingly, do not apply retroactively. See, e.g., [CITATION]
at ¶ 17; [CITATION] at ¶ 19; [CITATION] at ¶ 30. In addition to the sound reasoning adopted
by these appellate districts, we note that the preamble to S.B. 175 specifically states
Case No. 9-22-13
the purpose of the act is to “expand the locations at which a person has no duty to
retreat before using force under both civil and criminal law.” (Emphasis added.)
We find this language to be an acknowledgement of the General Assembly’s intent
to create a substantive right through the amendment to R.C. 2901.09.
{¶87} Thus, we find that the trial court did not err by determining that Ohio’s
stand-your-ground law was not applicable to the instant case.
{¶88} Green’s second assignment of error is overruled.
{¶89} In his third assignment of error, Green argues that, even under the
former statute, the trial court erred by instructing the jury that Green had an on-
going duty to retreat. Green contends that the testimony established that he
attempted unsuccessfully to flee from from McGhee twice, and, accordingly, had
no duty to retreat as long as he reasonably believed he was in imminent danger of
bodily harm and deadly force was his only escape. Green also argues that because
his mother, who he was allegedly protecting, was still inside the house, he did not
have a duty to retreat.
{¶90} However, the State presented evidence at trial which indicates that
Green stood outside of the residence at 126 S. Seffner Ave., with a firearm, and
waited for McGhee to exit the house and then engaged him. Moreover, the State’s
evidence demonstrated that Green shot McGhee on a public sidewalk, which is
outside the privilege of defending one’s home.
Case No. 9-22-13
{¶91} We likewise find Green’s argument that he had no duty to retreat
because his mother had no duty to retreat to be unavailing. Floyd testified that she
succeeded in removing McGhee from her home. Although she was still in the house
at the time of the shooting, she was in the process of trying to locate her shoes so
that she could follow McGhee outside when he was shot by Green.
{¶92} Accordingly, we do not find that the trial court erred by instructing the
jury that McGhee had an ongoing duty to retreat.
Fourth Assignment of Error
Ziair was deprived of his right to the effective assistance of
counsel. Sixth and Fourteenth Amendments, U.S. Constitution;
Article I, Sections 10 and 16, Ohio Constitution.
{¶93} In his fourth assignment of error, Green argues that he was denied the
effective assistance of counsel. Specifically, Green contends that his trial counsel
was ineffective for failing to propose a “stand-your-ground” jury instruction despite
the trial court’s decision that such a jury instruction did not apply in the instant case.
He also argues his trial counsel was ineffective for failing to ask Green about
specific instances of the victim’s prior violent conduct.
{¶94} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” [CITATION]. A
defendant asserting a claim of ineffective assistance of counsel must establish: (1)
counsel’s performance was deficient or unreasonable under the circumstances; and
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(2) the deficient performance prejudiced the defendant. [CITATION], citing [CITATION]
(1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. [CITATION]. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. [CITATION].
Tactical or strategic decisions, even if unsuccessful, do not generally constitute
ineffective assistance of counsel. [CITATION].
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See [CITATION].
{¶95} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” [CITATION], quoting [CITATION]. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
[CITATION].
{¶96} Turning to Green’s argument, we focus entirely on the prejudice prong
of the ineffective-assistance-of-counsel test. See [CITATION] (“If the appellant does not establish one of [the
Case No. 9-22-13
prongs of the test], the appellate court does not need to consider the facts of the case
under the other prong of the test.”). Green contends he received ineffective
assistance of counsel due to his trial counsel’s alleged failure to propose a stand-
your-ground jury instruction despite the trial court’s decision that the jury
instruction did not apply in the instant case and for failing to ask Green about
specific instances of McGhee’s prior violent conduct. However, in his appellant’s
brief, Green concedes that those actions by his trial counsel would likely have been
“futile.” (Appellant’s Brief at 31-32). See [CITATION] at ¶ 20, quoting [CITATION], 8th Dist. Cuyahoga No. 94475, 2011-Ohio-704, ¶ 33 (“‘[T]he failure
to do a futile act cannot be the basis for claims of ineffective assistance of counsel
and is not prejudicial.’”). We agree with counsel’s assessment that such acts by trial
counsel would have been futile. Furthermore, Green fails to argue specifically how
his trial counsel’s alleged shortcomings prejudiced him. Accordingly, we do not
find that Green established that his trial counsel was ineffective.
{¶97} Green’s fourth assignment of error is overruled.
Fifth Assignment of Error
Alternatively, the jury’s verdict that Ziair did not act in defense
of self or another was against the manifest weight of the evidence
presented. Fifth and Fourteenth Amendments, U.S. Constitution;
Article I, Section 10 and 16, Ohio Constitution.
{¶98} In his fifth assignment of error, Green argues that his convictions are
against the manifest weight of the evidence. Specifically, Green contends that the
greater weight of credible evidence established that he acted in self-defense.
Case No. 9-22-13
Standard for Manifest-Weight Review
{¶99} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine the entire record, “‘weigh[] the
evidence and all reasonable inferences, consider[] the credibility of witnesses and
determine[] whether in resolving conflicts in the evidence, the [trier of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’” [CITATION], quoting [CITATION]. A
reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the witnesses.
[CITATION]. When applying the manifest-
weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily
against the conviction,’ should an appellate court overturn the trial court’s
judgment.” [CITATION], quoting [CITATION].
Green’s Convictions
{¶100} Green was convicted of murder in violation of R.C. 2903.02(B),
[SEGMENT 26]
which provides that:
No person shall cause the death of another as a proximate result of the
offender’s committing or attempting to commit an offense of violence
that is a felony of the first or second degree and that is not a violation
of [R.C. 2903.03 or 2903.04].
Case No. 9-22-13
{¶101} Here, Green was convicted of shooting and killing McGhee as the
proximate result of committing or attempting to commit the offense of felonious
assault pursuant to R.C. 2903.11(A)(1) upon McGhee.
{¶102} R.C. 2903.11(A)(1), which codifies the offense of felonious assault,
provides, in pertinent part that “[n]o person shall knowingly * * * [c]ause serious
physical harm to another * * *.” “A person acts knowingly, regardless of purpose,
when the person is aware that the person’s conduct will probably cause a certain
result or will probably be of a certain nature.” R.C. 2901.22(B).
{¶103} Green attempted to assert a self-defense claim as to all allegations.
R.C. 2901.05(B)(1), states as follows:
A person is allowed to act in self-defense, defense of another, or
defense of that person’s residence. If, at the trial of a person who is
accused of an offense that involved the person’s use of force against
another, there is evidence presented that tends to support that the
accused person used the force in self-defense, defense of another, or
defense of that person’s residence, the prosecution must prove beyond
a reasonable doubt that the accused person did not use the force in
self-defense, defense of another, or defense of that person’s residence,
as the case may be.
{¶104} “Under R.C. 2901.05(A) and (B)(1), a defendant claiming self-
defense has the burden of production—that is, the burden of producing evidence
that ‘tends to support’ his use of force in defending himself.” [CITATION], “Under the current version of R.C.
2901.05, if evidence is presented ‘that tends to support’ that the defendant used the
force in self-defense, the prosecution must prove beyond a reasonable doubt that the
Case No. 9-22-13
accused did not act in self-defense.” (Emphasis sic.) [CITATION] Accordingly, “the burden of proof for
* * * self-defense has shifted to the state,” but “the burden of production for * * *
self-defense[ ] remains with the defendant.” (Emphasis sic.) [CITATION]
{¶105} “The elements of self-defense differ depending on whether the
defendant used deadly or non-deadly force to defend himself.” [CITATION] “The use of a gun constitutes the
use of deadly force.” [CITATION]
{¶106} The elements of a self-defense claim are:
(1) that the defendant was not at fault in creating the situation giving
rise to the affray; (2) that the defendant has a bona fide belief that he
[or she] was in imminent danger of death or great bodily harm and
that his [or her] only means of escape from such danger was in the use
of such force; and (3) that the defendant did not violate any duty to
retreat or avoid the danger.
[CITATION], quoting [CITATION]
{¶107} “[T]he State must ‘disprove at least one of the elements of self-
defense beyond a reasonable doubt.’” [CITATION], quoting [CITATION] “The elements of self-defense are cumulative,
-44- Case No. 9-22-13
and a defendant’s claim of self-defense fails if any one of the elements is not
present.” [CITATION].
Analysis: Manifest Weight of the Evidence
{¶108} In support of his argument that his murder conviction is against the
manifest weight of the evidence, Green argues the State’s eyewitness, Mosley, “was
biased” and “offered inconsistent and unreliable testimony.” (Appellant’s Brief at
32-33). On the other hand, Green argues that “he testified consistently and without
contradiction [that] he had a bona fide belief that he and his mother were in
imminent danger of death or serious bodily harm.” (Id. at 33). However, upon
review of the record, we do not conclude that the jury’s witness-credibility
determinations were unreasonable in light of the evidence presented at trial.
{¶109} At trial, Mosley, McGhee’s fiancée at the time of his death, testified
that on January 18, 2021, she spent the day with McGhee in Columbus. (Feb. 1-10,
2022 Tr. at 748-749). After they returned to Marion, they visited a friend’s house
to watch a sporting game and relax. (Id. at 749-750). Later in the night, McGhee
drove himself and Mosley to Floyd’s house. (Id. at 751-752). When they arrived
at the house, McGhee entered through the unlocked front door while Mosley
remained in the vehicle. (Id. at 753-754). McGhee left the keys in the ignition and
the driver-side vehicle door open. (Id. at 758, 789); (State’s Ex. 36).
{¶110} Shortly thereafter, Mosley observed Green exit the house through the
side door. (Feb. 1-10, 2022 Tr. at 755). According to Mosley, Green walked up to
Case No. 9-22-13
the driver’s-side door and told Mosley, “You all got four minutes to pull off, or I’m
going to shoot * * * that bitch up.” [CITATION]. Mosley testified that when Green
referenced “shooting it up” that he held up a gun for Mosley to see. [CITATION].
Then, Green returned inside the house. [CITATION].
{¶111} Mosley testified that Green’s actions prompted her to get out of the
vehicle and walk to the front of the house to retrieve McGhee. [CITATION]. When
Mosley approached the front door, the front door was open but the screen door was
closed, and Green was pacing back and forth at the bottom of the stairs holding the
gun. [CITATION]. Mosley claims that when she reached for the screen door to enter
the house, Green said, “You ain’t coming in here, because all this is because of you.”
[CITATION]. Mosley stated this interaction prompted her to walk back down the
front steps, return to the car, and try to locate her phone. [CITATION]. As Mosley searched
for her phone that had fallen between the vehicle’s seats due to her shaking hands,
Green again approached the vehicle, pointed the gun at her and told her that he
should shoot her because this was all because of her. [CITATION]. Then, Green
moved to the driver’s-side door, pointed the gun at her again, and said, “I should
shoot you. I should kill your ass, because all of this is because of you.” [CITATION].
Then, Mosley recalled that Green went toward the side of the house near Center
Street. [CITATION].
{¶112} Shortly thereafter, Mosley looked up from praying and saw McGhee
and Floyd coming out the front door of the house. [CITATION]. At the time Mosley looked
Case No. 9-22-13
up, Floyd was on the porch and McGhee was midway down the front steps. ([CITATION]). Mosley stated that McGhee looked like he was going to walk toward her,
but then he took a step toward the sidewalk and pivoted toward Center Street where
Green was standing. ([CITATION]). Then, Mosley heard McGhee say, “But you a
child.” ([CITATION]). Mosley looked and saw Green standing with a gun pointed at
McGhee. ([CITATION]). Mosley did not hear Green reply. ([CITATION]). Then she heard two shots.
([CITATION]). Upon hearing the shots, Mosley opened the car door and lay down in the
snow. ([CITATION]). After she hit the ground, Mosley heard McGhee say, “Well, you think
I’m scared of you because you got a gun?” ([CITATION]). Then, Mosley testified that
she heard five to six more shots. ([CITATION]). When Mosley looked back up, she saw
McGhee pivot back toward Mosley, grab his chest, and fall to the ground. ([CITATION]).
She observed Green running toward Center Street. ([CITATION]). Shortly thereafter,
Mosley saw Floyd run out of the house and toward McGhee. ([CITATION]). Then,
Mosley located a phone in the vehicle and called the police. ([CITATION]).
{¶113} Mosley admitted that, initially, she told the police that she did not see
who shot McGhee. ([CITATION]). However, shortly after Mosley left the house
that evening, she called the police and told them that she saw who shot McGhee and
[SEGMENT 27]
was willing to give the police a statement regarding what she had seen. ([CITATION]).
Mosley testified that the reason she initially did not tell the officers who shot
McGhee was that Green was on the run and Mosley was concerned for the safety of
her children. ([CITATION]). Mosley further stated that she had been with McGhee
====== End of Part ====== Case No. 9-22-13
the entire day and did not see him with a weapon at any time throughout the day.
([CITATION] at 778).
{¶114} On cross-examination, Mosley, who was incarcerated at the time of
the trial, testified she has also been convicted of several crimes in the past including
several counts of theft and a count of obstructing official business. ([CITATION]
Tr. at 747-748, 797-801). Mosley also specified to McGhee’s path of travel after
leaving the house. ([CITATION] at 813). Mosley stated that if McGhee had turned
left at the bottom of the front steps, it would have been a direct path to his vehicle.
([CITATION] at 813-814). She stated that when McGhee walked down the stairs,
he pivoted left toward the car, then, when McGhee noticed Green, he turned toward
Green. ([CITATION] at 814). However, he never took steps from that point.
([CITATION] at 814-815).
{¶115} Floyd, Green’s mother, was called as a court’s witness at the request
of the State. ([CITATION] at 835). Floyd testified that on January 18, 2021, she and
McGhee had been exchanging messages throughout the day, and that there was some
discussion of Floyd sending McGhee a sexual video accompanying a text that said,
“I have something special for you. Good night.” ([CITATION] at 836-837). Floyd
testified that McGhee arrived at her home at approximately 10:35 p.m. and that he
was lying shot on the sidewalk by 10:40 p.m. ([CITATION] at 837).
{¶116} Floyd stated that when McGhee arrived at the home, he came up to
her room, where she was lying in bed, and pulled the covers off her. ([CITATION]
2022 Tr. at 841). Floyd stated that she and McGhee argued, and at some point,
Case No. 9-22-13
McGhee left to go outside. [CITATION]. Floyd stated that she wanted to follow
McGhee out of the house, but she was unable to locate her shoes. [CITATION]. She was on
the porch attempting to locate her shoes when she heard approximately three to four
gunshots. [CITATION]. She looked up and saw McGhee fall to the ground and Green
run away from the scene. [CITATION]. Floyd testified that she ran out of the house to
McGhee’s side. [CITATION].
{¶117} Floyd stated she initially told officers she did not know what
happened, when in fact, it was her son, Green, who shot McGhee. [CITATION].
However, a little more than an hour after the shooting, she admitted to one of the
officers at the scene that Green was the one who shot McGhee. [CITATION].
{¶118} Floyd stated that she and McGhee were married in 2009 but had
ended their relationship by October 2020 and McGhee was no longer living at her
home at 126 S. Seffner Ave. on January 18, 2021. [CITATION].
Floyd confirmed that, although they were not currently together, she and McGhee
maintained communication and continued having an intimate relationship. [CITATION].
{¶119} On cross-examination, Floyd provided more detail regarding the
altercation she had with McGhee on January 18, 2021. She stated Floyd pulled the
covers off her and she got up and flipped on the lights. [CITATION, CITATION]. Then, she
and Floyd began to argue. [CITATION]. At some point, McGhee choked Floyd up
against the refrigerator in her room. [CITATION, CITATION]; (Defendant’s Ex. A).
Case No. 9-22-13
Floyd stated she was fearful when McGhee grabbed her by the throat and slammed
her against the wall. [CITATION].
{¶120} Floyd recalled that Green came upstairs and told McGhee, “[H]e
better not put his hands on his momma no more.” [CITATION]. Floyd stated that she told
Green, “I’ll take care of it.” [CITATION]. She stated she was in fear for Green and wanted
to get Green out of the confrontation between her and McGhee. [CITATION]. According
to Floyd, Green then went downstairs. [CITATION].
{¶121} Floyd and Green continued their argument in Floyd’s bedroom, and
Floyd instructed McGhee to “get out” of the house. [CITATION]. McGhee went down the stairs with Floyd following him. [CITATION]. According to Floyd,
McGhee saw Green in the bathroom off the kitchen and went toward Green. [CITATION].
She stated that McGhee asked Green, “What you gonna do, bitch?” [CITATION]-885). However, Floyd jumped in between McGhee and Green. [CITATION]. Floyd
stated that she was in fear for her son because McGhee has a reputation for violence.
[CITATION]-886). Floyd recalled that after she jumped between McGhee and Green,
Green exited the house through the side door off the kitchen. [CITATION]-887).
{¶122} Floyd stated that she continued to argue with McGhee and told him
to “[l]eave” and “[g]et out.” [CITATION]. She stated that McGhee did not yell back
at her. [CITATION]. However, McGhee pinned Floyd against the staircase by her throat.
[CITATION]-888). In response, Floyd grabbed McGhee’s shirt and kicked him in the
midsection to get him off her. [CITATION]. Floyd stated that the choking lasted for
Case No. 9-22-13
approximately two to three seconds. ([CITATION]). Then, Floyd stated she shoved McGhee
out the front door. ([CITATION]).
{¶123} Floyd recalled that when McGhee reached the bottom of the front
porch steps, he immediately turned right. ([CITATION]). Floyd stated
she did not hear any of the words McGhee said to Green. ([CITATION]). Floyd testified
she has never known McGhee to carry a gun. ([CITATION]).
{¶124} Floyd admitted she initially told law enforcement officers that
McGhee did not hit her at all on January 18, 2021. ([CITATION]). However, she
later stated that she and McGhee entered into a physical altercation that night. ([CITATION]). She stated the reason she initially denied being hit by McGhee was that in
the immediate aftermath of the altercation she was “frantic” and “not thinking
straight.” ([CITATION]). Defendant’s Exhibits K and L, photographs which depict
Floyd on the evening of January 18, 2021 were introduced at trial. ([CITATION]). The photographs depict Floyd with a small mark on her
lip. ([CITATION]).
{¶125} Green also took the stand in his own defense. ([CITATION]).
at 1246). He testified that on January 18, 2021, he was at his home at 126 S. Seffner
Ave. when McGhee entered the house without knocking. ([CITATION]). According
to Green, McGhee was acting “[a]ggressive” and yelled at Green asking him where
his mother was. ([CITATION]). McGhee then went upstairs and Green
remained in the living room despite knowing that his mother was upstairs in her
Case No. 9-22-13
bedroom. ([CITATION]). Green stated that he did not try to stop McGhee from
coming to Floyd’s room because he knew they were just going to argue because
they “do it all the time.” ([CITATION]).
{¶126} According to Green, he eventually went to the bottom of the stairs to
monitor if things escalated further than arguing because McGhee “beat [his] mother
before.” ([CITATION]). While he waited at the bottom of the stairs, he heard
his mother screaming and loud banging against the walls which prompted him to go
upstairs to his mother’s room. ([CITATION]). Green testified that when he entered
the room, he witnessed McGhee choking his mom. ([CITATION]). Green stated
he told McGhee to keep his hands off Floyd and asked McGhee to leave three times.
([CITATION]).
{¶127} Green stated that his actions in defense of his mom prompted
McGhee to turn his attention to him. ([CITATION]) Green testified
that he ran downstairs and locked himself in the bathroom off the kitchen. ([CITATION]).
According to Green, he ran because McGhee “has always been violent” and he was
[SEGMENT 28]
afraid of McGhee. ([CITATION]). McGhee allegedly followed Green
downstairs and started kicking and banging on the bathroom door in an apparent
effort to enter the bathroom. ([CITATION]). Green stated that when the banging
stopped, he opened the door to see where McGhee was located. ([CITATION]).
{¶128} When he did not see McGhee near the bathroom door, he exited the
bathroom into the kitchen, where he saw McGhee and Floyd arguing. ([CITATION]).
Case No. 9-22-13
1253). Then, McGhee approached Green, grabbed him by his shirt, and threw him
against the wall and onto the floor. ([CITATION]). Green stated that, at this point,
Floyd intervened and got in between Green and McGhee. ([CITATION]). According
to Green, Floyd grabbed an air freshener and sprayed McGhee in the face with it,
causing McGhee to fall. ([CITATION]).
{¶129} Green testified that when McGhee fell to the ground, “[t]he gun came
out of his possession.” (Feb. 1-10, 2022 Tr. at 1254). Green stated he picked up
the gun and ran outside. ([CITATION]). When he got outside, Green stated that he
approached the front of McGhee’s vehicle and asked Mosley for help, which she
did not render. ([CITATION]). He denied threatening Mosley or showing her
the gun. ([CITATION]). Then, he stated that he stood by the north side of the front
steps, towards Center Street. ([CITATION]). Green explained that he did not run
because he “couldn’t leave [Floyd] in danger.” ([CITATION]). Green expounded that
he did not know what was happening to Floyd inside the house. ([CITATION]).
{¶130} According to Green, McGhee exited the house, came down the stairs,
and “started coming after [Green].” ([CITATION]). Green stated that when
McGhee came down the stairs, based on McGhee’s body language, Green believed
that McGhee was still “angry and mad.” ([CITATION]). Green stated that after
McGhee turned right, McGhee “started charging at [him].” ([CITATION]). Green then fired
two “warning shots” in the air to warn McGhee that if he continued to threaten him,
Green had a right to defend himself. ([CITATION]). McGhee then said, “You
Case No. 9-22-13
think I’m scared because you have a gun?” ([CITATION]). Green testified that he
did not feel that he could run at this point, because he did not want to leave his
mother, who was still in the house, in danger. ([CITATION]).
{¶131} Green testified that after Green fired the warning shots, McGhee kept
coming after him. ([CITATION]). So, he pointed the gun at McGhee,
pulled the trigger, and fired two shots toward McGhee. ([CITATION]). However, Green
denied that he intended for the shots to hit McGhee. ([CITATION]-1260). He further
denied that he intended to kill McGhee. ([CITATION]).
{¶132} After firing the second round of shots, Green observed McGhee fall
to the ground. ([CITATION]). Green stated that he then dropped the gun, left it at the scene,
and ran toward Center Street. ([CITATION]). He spent the next several days on the run before
turning himself in. ([CITATION]).
{¶133} On cross-examination, Green clarified he was in fear of his safety
and the safety of his mother. ([CITATION]-1263). Green stated he
knew he shot McGhee, yet he still ran away. ([CITATION]). He denied he knew that
he wounded McGhee gravely; rather, he thought maybe he “just nicked him.” ([CITATION]).
Further, he admitted that although he claimed to fear for his mother’s safety, he did
not return to the house to check on her well-being after he shot McGhee. ([CITATION]).
Rather, he ran away. ([CITATION]).
{¶134} Green explained that when he approached Mosley for help, he did
not yell “help” at any time. ([CITATION]). Nor did Green attempt to elicit help from
Case No. 9-22-13
any of the neighbors or the fire station that he ran past during his flight from the
scene. (Id. at 1265-1267).
{¶135} Furthermore, Green stated that when McGhee left the house and
came down the stairs, he knew McGhee was unarmed. (Feb. 1-10, 2022 Tr. at
1270). Green admitted that before McGhee did anything rather than walk down the
steps, Green had decided to shoot off some warning shots. (Id.). However, he
denied that the purpose of the warning shots was to intimidate McGhee. (Id.).
{¶136} Green argues the jury’s verdict is against the weight of the evidence
because Green was allegedly a more credible witness than Mosley. However, “[a]
verdict is not against the manifest weight of the evidence because the finder of fact
chose to believe the State’s [evidence] rather than the defendant’s version of the
events.” [CITATION]. “‘Although we review credibility when considering the manifest weight of the
evidence, the credibility of witnesses is primarily a determination for the trier of
fact.’” [CITATION], quoting [CITATION]. “‘The trier of fact is best
able “to view the witnesses and observe their demeanor, gestures[,] and voice
inflections, and use these observations in weighing the credibility of the proferred
testimony.”’” [CITATION], quoting [CITATION], quoting [CITATION].
Case No. 9-22-13
[CITATION], ¶ 24, citing [CITATION].
{¶137} Additionally, the evidence presented could have led a reasonable jury
to conclude that Green’s decision to shoot McGhee was not reasonable and was not
based on an honest belief in the need for self-defense. Specifically, the testimony
presented at trial could have led the jury to conclude that Green left the house,
threatened to kill Mosley and McGhee, and then chose to reengage McGhee as
McGhee attempted to leave 126 S. Seffner Ave.
{¶138} Furthermore, Green’s testimony was, at many points, inconsistent
with the testimony of Floyd, Mosley, and other witnesses. For instance, Green
contends McGhee brought the gun to the house and dropped it in the kitchen.
However, Mosley, who spent the day with McGhee, stated that that he did not have
a weapon of any kind on his person. Furthermore, Floyd stated that she had never
known McGhee to carry a firearm. Moreover, Green’s testimony that he left the
gun at the scene, on the sidewalk, is not consistent with the testimony of the other
witnesses or the physical evidence left at the scene. Despite Green’s insistence that
he left the gun on the sidewalk, it was never recovered, in spite of multiple law
enforcement officers combing the property for physical evidence, including bullets
and bullet casings.
{¶139} Green also denied shooting the gun more than four times. However,
this testimony is inconsistent with the testimony of multiple neighbors and witnesses
Case No. 9-22-13
who testified to hearing approximately six to eight gunshots. Furthermore,
surveillance video from a neighbor’s home was introduced as State’s Exhibit 87 and
was played for the jury. ([CITATION] Tr. at 445-448). In the video, eight
popping sounds were heard. ([CITATION] at 448); (State’s Ex. 87).
{¶140} Accordingly, after reviewing the evidence, we find that a reasonable
jury could have found that Green did not act in self-defense.
{¶141} Green’s fifth assignment of error is overruled.
Sixth Assignment of Error
Ziair’s statutory and due process rights were violated when he
was criminally indicted and convicted on a charge and
specifications that were never filed in or transferred from the
Marion County Juvenile Court. R.C. 2152.12; Fifth and
Fourteenth Amendments, U.S. Constitution; Article I, Section 16,
Ohio Constitution.
{¶142} In his sixth assignment of error, Green argues that his statutory and
due process rights were violated when he was indicted and convicted on a murder
charge and specifications in Marion County Common Pleas Court that were not filed
in or transferred from the Marion County Juvenile Court.
{¶143} On January 19, 2021, Green, then 17 years old, was charged in a two-
count complaint in the family division of the Marion County Court of Common
Pleas (“the juvenile court”). Green was charged with Count One of murder in
violation of R.C. 2903.02(A) (“purposeful murder”) and Count Two of aggravated
murder in violation of R.C. 2903.01(A), both unclassified felonies if committed by
[SEGMENT 29]
an adult.
Case No. 9-22-13
{¶144} The State sought transfer of Green’s case from the juvenile court to
the general division of the common pleas court. On February 11, 2021, a probable
cause hearing was held and the juvenile court judge found that the State had
established probable cause to believe that Green had committed the acts related to
both counts. The trial court found that bindover was mandatory pursuant to R.C.
2152.12. Accordingly, the matter was transferred to the Marion County Common
Pleas Court, General Division (“the adult court”).
{¶145} On February 24, 2021, the Marion County Grand Jury indicted Green
on three counts: Count One of murder in violation of [CITATION], an
unclassified felony; Count Two of murder in violation of [CITATION] (“felony
murder”), an unclassified felony; and Count Three of felonious assault in violation
of [CITATION], a second-degree felony. Additionally, each of the counts
contained a three-year firearm specification pursuant to [CITATION] and [CITATION]. Relative hereto, Counts Two and Three, and the accompanying firearm
specifications, were not among the charges in the complaint filed in the juvenile
court.
{¶146} Green argues that the trial court lacked subject-matter jurisdiction
over Counts Two and Three because they were not charged in the complaint filed
in juvenile court, and accordingly, the juvenile court did not issue findings of
probable cause for those offenses. Green argues that because the juvenile court
never found probable cause for the offenses of felony murder and felonious assault,
Case No. 9-22-13
the juvenile court never transferred, and the adult court never acquired, subject-
matter jurisdiction over those offenses. Notably, those charges and their attendant
specifications were the only charges that resulted in convictions.
{¶147} In support of his argument, Green relies primarily on the Supreme
Court of Ohio’s decision in [CITATION]. In
that decision, the Supreme Court of Ohio held that “[a] finding of probable cause is
a jurisdictional prerequisite under R.C. 2152.12 to transferring a child to adult court
for prosecution for an act charged.” (Emphasis added.) [CITATION] at ¶ 44. In [CITATION],
the State brought criminal charges against a juvenile in adult court for acts that the
juvenile court determined were unsupported by probable cause in addition to acts
that the juvenile court found were supported by probable cause. Id. at ¶ 11-12. The
Supreme Court of Ohio held that the trial court lacked subject-matter jurisdiction to
convict [CITATION], a juvenile offender, “for any acts charged for which no probable
cause has been found by a juvenile court.” Id. at ¶ 42. Accordingly, the Supreme
Court held that the adult court lacked subject-matter jurisdiction over the counts and
specifications that the trial court determined were not supported by probable cause.
Specifically, the Supreme Court of Ohio held that “because the juvenile court found
that the acts related to those counts and specifications were not supported by
probable cause and thus the juvenile court could not have made an amenability
determination with regard to those acts.” Id. at ¶ 43. Therefore, the Supreme Court
of Ohio concluded there was a “jurisdictional defect in the bindover process.” Id.
Case No. 9-22-13
{¶148} However, Smith is distinguishable from the instant case. Here, the
juvenile court made a finding of probable cause as to all the counts charged in and
bound over from the juvenile court (purposeful murder and aggravated murder). By
contrast, in Smith, the juvenile court specifically found no probable cause for several
counts that were subsequently charged in adult court. See [CITATION], ¶ 27.
{¶149} Significantly, subsequent to the decision in Smith and the time for
filing of briefs in the instant case, the Supreme Court of Ohio decided [CITATION],
in which the issue was “whether the state must prove in juvenile court that there is probable cause to believe that a juvenile
committed every act charged before the juvenile may be indicted for those acts in
adult court.” [CITATION] at ¶ 1. The Supreme Court held that “an adult court is not
necessarily limited to considering only the specific acts bound over from the
juvenile court.” Id. at ¶ 12. The Court explained as follows:
We acknowledge that, generally, a grand jury is empowered to return
an indictment on any charges supported by the facts submitted to it.
See [CITATION], paragraph two of the syllabus, superseded by statute on other grounds
as stated in [CITATION]. But a grand jury may not consider additional charges
arising from a different course of conduct or events that have not been
properly bound over by the juvenile court. [CITATION], ¶ 14
(citing cases from several Ohio appellate districts). This means that a
case transferred from a juvenile court may result in new indicted
charges in the adult court when the new charges are rooted in the acts
that were the subject of the juvenile complaint but were not
Case No. 9-22-13
specifically named in the individual acts transferred. [CITATION] at ¶ 35.
[CITATION] at ¶ 13.
{¶150} The Supreme Court then affirmed the defendant’s convictions on
Counts 45 and 46, which were not charged in the juvenile-court complaint, but were
charged in the grand jury indictment. [CITATION] The Court reasoned that although those
specific charges were not filed in the juvenile complaint, they were “based on
conduct that occurred on or about February 7, 2018—conduct that was in the
juvenile complaint against Burns.” [CITATION]
{¶151} Likewise, in the instant case, Counts Two and Three of the
indictment, and their accompanying firearm specifications, are based on conduct
that occurred on January 18, 2021, conduct that was in the juvenile complaint
against Green. Accordingly, we find that the adult court had subject-matter
jurisdiction with respect to those counts.
{¶152} Green’s sixth assignment of error is overruled.
Seventh Assignment of Error
Ziair was deprived of his constitutional rights because Ohio’s
mandatory transfer statutes violate due process guarantees. Fifth
and Fourteenth Amendments, U.S. Constitution; Article I,
Sections 10 and 16, Ohio Constitution.
{¶153} In his seventh assignment of error, Green argues that Ohio’s
mandatory transfer statutes violate juvenile offenders’ due process rights because
Case No. 9-22-13
the mandatory-transfer statutes do not permit an individualized assessment of the
juvenile.
{¶154} In support of his argument, Green relies on the Supreme Court of
Ohio’s decision in [CITATION],
which held that “the mandatory transfer of juveniles to a general division of a
common pleas court violates juveniles’ right to due process” because it does not
require “individual consideration at amenability hearings before being transferred
from the protections of juvenile court to adult court upon a finding of probable cause
for certain offenses.” [CITATION] at ¶ 24, 31. However, the Supreme Court of Ohio
granted reconsideration, and in [CITATION],
vacated its decision in [CITATION] and held that the mandatory bindover
of certain juveniles to adult court pursuant to R.C. 2152.10(A)(2)(b) and
2151.12(A)(1)(b) does not violate the juvenile offender’s due process or equal
protection rights. [CITATION] at ¶ 4, 38.
{¶155} Specifically, the [CITATION] Court determined that Aalim’s mandatory
bindover “satisfied the requirements of ‘fundamental fairness’” required by the
Ohio and federal due process clauses because Aalim had a hearing before a juvenile-
court judge to determine his age at the time of the offenses and that probable cause
existed to believe that Aalim committed the conduct alleged in the juvenile
complaint before the case was transferred from juvenile court to adult court. Aalim
Case No. 9-22-13
II at ¶ 27. The Supreme Court noted that Aalim was represented by counsel at this
hearing and had a parent present. Id.
{¶156} Here, like in [CITATION], Green was represented by counsel at a hearing
in front of the juvenile court where that court determined that the State met its
burden of demonstrating there was probable cause that Green committed the acts
alleged in the juvenile-court complaint. It was only following this hearing that the
matter was transferred from the juvenile court to the adult court. Accordingly, we
find that Green has failed to show that his mandatory bindover violated his right to
due process or that Ohio’s mandatory-bindover statutes facially violate the right to
due process. See [CITATION] at ¶ 27.
{¶157} Green’s seventh assignment of error is overruled.
Eighth Assignment of Error
The cumulative effect of the errors in this case deprived Ziair of
his right to a fair trial. Fifth and Fourteenth Amendments, U.S.
Constitution; Article I, Sections 10 and 16, Ohio Constitution.
{¶158} In his eighth assignment of error, Green summarily argues that he
was deprived of a fair trial due to the cumulative effect of the alleged errors outlined
in his other seven assignments of error. We disagree.
[SEGMENT 30]
{¶159} Under the cumulative-error doctrine, “a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of a fair trial
even though each of the numerous instances of trial court error does not individually
constitute cause for reversal.” [CITATION]
Case No. 9-22-13
Ohio-52, ¶ 83. “To find cumulative error, a court must first find multiple errors
committed at trial and determine that there is a reasonable probability that the
outcome below would have been different but for the combination of the harmless
errors.” In re J.M., [CITATION], ¶ 36. Here,
we have not found that the trial court committed any errors that were not harmless,
let alone, multiple errors. Therefore, the cumulative-error doctrine does not apply.
See [CITATION], abrogated
on other grounds, [CITATION] (“If there
[are] not multiple errors, * * * the cumulative error doctrine does not apply.”); [CITATION], citing [CITATION].
{¶160} Green’s eighth assignment of error is overruled.
Conclusion
{¶161} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Marion County Court
of Common Pleas.
Judgment Affirmed
WILLAMOWSKI and WALDICK, J.J., concur.
/eks
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as State v. Passmore, 2023-Ohio-3209.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
CASE NO. 5-22-39
PLAINTIFF-APPELLEE,
v.
DOMINIC I. PASSMORE, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2022-CR-00011
Judgment Affirmed
Date of Decision: September 11, 2023
APPEARANCES:
Anthony J. Richardson for Appellant
Phillip A. Riegle for Appellee
Case No. 5-22-39
WILLAMOWSKI, J.
{¶1} Defendant-appellant Dominic I. Passmore (“Passmore”) appeals the
judgment of the Hancock County Court of Common Pleas, alleging his conviction
is not supported by sufficient evidence; that his conviction is against the manifest
weight of the evidence; that the trial court improperly imposed financial sanctions;
that he was denied his right to a fair trial; that he did not receive the effective
assistance of counsel; and that the trial court erred by imposing consecutive
sentences. For the reasons set forth below, the judgment of the trial court is
affirmed.
Facts and Procedural History
{¶2} On the evening of December 18, 2021, Latasha Jaquez (“Jaquez”) went
to the house of her friend, Brittney Tate (“Tate”), to celebrate Tate’s birthday.
Another one of Tate’s friends, Sonia Bair (“Bair”), was also present. They decided
to go to a local bar to have some drinks. On their way, Bair drove Jaquez and Tate
to a nearby Circle K gas station in Findlay, Ohio because they wanted to purchase
some cigarettes. Bair pulled into the gas station parking lot at roughly 12:45 A.M.
on December 19, 2021.
{¶3} Jaquez, Tate, and Bair exited the vehicle and went into the gas station
store. While Jaquez was at the counter selecting her cigarettes, Tate and Bair went
over to a nearby automatic teller machine to withdraw some cash. At some point,
Passmore got in line behind her. Jaquez testified that Passmore was making some
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Case No. 5-22-39
comments to her but that she ignored him. Tate then told Passmore to stop making
comments to Jaquez. Passmore called Tate a “b***h.” (Tr. 261). Tate responded
by saying, “I don’t care. We’re from Findlay. We’re classy, not Trashy.” (Tr. 261).
Tate and Passmore continued to exchange words with the intensity of this discussion
escalating very quickly.
{¶4} Jaquez turned her head towards Passmore in time to see him “push her
[Tate] in the face * * *.” (Tr. 262). Jaquez told them to stop. She then turned
towards the clerk behind the counter, Stephen LaRue (“LaRue”), for the purpose of
asking him to call 9-1-1. At this moment, she felt Passmore grab onto her head with
both of his hands before he slammed her head down into the counter. After the top
portion of her skull made contact with the counter, Jaquez fell to the ground with
her head hitting the floor.
{¶5} Unable to stand, Jaquez crawled behind the counter where she begged
LaRue to call 9-1-1. She testified that she was bleeding and “very dizzy.” (Tr. 265).
She also stated that her “vision was bouncing back and forth.” (Tr. 265). Passmore
then left the store with two other people who had come with him. They got into a
red pickup truck and drove away. By this point, LaRue had called 9-1-1 to request
police and emergency medical assistance.
{¶6} Officer Noah Burkholder (“Officer Burkholder”) of the Findlay Police
Department arrived on the scene before Emergency Medical Services (“EMS”).
When he entered the store, he noticed blood and hair on the floor. He also noticed
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Case No. 5-22-39
that the store was in “disarray” with “[t]he displays ha[ving] been knocked over,
and * * * items everywhere.” (Tr. 351). At that time, Jaquez was sitting on the
floor with a “towel * * * covered in blood * * * on her head” and “was very
disoriented.” (Tr. 351). She appeared to either be “losing consciousness, or maybe
just regaining consciousness * * *.” (Tr. 351).
{¶7} Sensing that Jaquez might have a concussion, Officer Burkholder “took
control of the towel” pressed against her head and “tried to hold her head * * * still
* * * to help protect her neck and her spine from any further injury.” (Tr. 352).
EMS arrived at roughly 1:15 A.M. After dressing her head wound and fitting a C-
Collar around her neck, EMS took Jaquez out of the store on a stretcher and
transported her to the emergency room at Blanchard Valley Hospital. Jaquez had
seven staples put into her head to close her laceration. She also had a concussion.
{¶8} Shortly after the altercation at Circle K, Patrolman Joshua Scharp
(“Patrolman Scharp”) received a report from dispatch that several individuals
potentially involved in the incident were fleeing from the scene in a red pickup
truck. Within roughly ten seconds of receiving this dispatch, he saw a vehicle
matching this description leaving Circle K and initiated a traffic stop. Three people
were inside the pickup truck. Passmore was sitting in the back seat. The other two
passengers were Passmore’s brother and sister.
{¶9} After Patrolman Scharp approached the vehicle, he asked the occupants
to identify themselves. Passmore stated that his name was Dequan Thomoson.
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Case No. 5-22-39
Patrolman Scharp then asked about the incident that occurred in Circle K. He
testified that Passmore responded by saying that a “female was talking shit” and that
“he didn’t like it and a fight broke out.” (Tr. 391). Passmore also indicated that this
female, later identified as Tate, “pushed him, and he pushed her away from him.”
(Tr. 395). Shortly thereafter, Passmore was taken into custody.
{¶10} On January 1, 2022, he was indicted on one count of felonious assault
in violation of R.C. 2903.11(A)(2), a felony of the second degree. A jury trial was
held on October 31, 2022 and November 1, 2022. Passmore testified in his own
defense. The jury then returned a verdict of guilty on the count of felonious assault.
Passmore was then sentenced on November 28, 2022.
{¶11} Passmore filed his notice of appeal on December 15, 2022. On appeal,
he raises the following six assignments of error:
First Assignment of Error
Is there sufficient evidence to hold that appellant, Mr. Passmore,
committed felonious assault, which is a crime fit for a shooting,
where there was no evidence he intended to harm the alleged
victim, and no evidence his actions caused incapacitation or the
like to be considered serious harm akin to shooting? Appellant
urges this reviewing court to assess the record and reverse the
matter, there holding that there is insufficient evidence of the
necessary mens rea and element of serious harm.
Second Assignment of Error
Did the jury lose its way when finding that appellant, Mr.
Passmore, committed felonious assault, which is a crime for a
shooting, where there is no evidence his actions caused
incapacitation, or the like, to be considered serious harm akin to
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Case No. 5-22-39
a shooting? Appellant urges this reviewing court to assess the
record and reverse the matter, there holding the jury lost its way
in finding appellant acted with the necessary mens rea and/or
caused serious harm.
Third Assignment of Error
Did R.C. 2929.19(B) require a stated finding by the trial court, or
a minimum support in the record, that appellant has or had the
means to pay financial sanctions imposed under R.C.
2929.18(A)(4), before the trial court imposed such financial
sanctions? Appellant urges this reviewing court to assess the
record and reverse the matter, there holding that the trial court
must engage in an analysis and make a finding at the sentencing
hearing and/or in the sentencing entry, or at minimum have
support for such finding, before imposing a financial sanction
under R.C. 2929.18, as contemplated in R.C. 2929.19(B)(5).
Fourth Assignment of Error
Should the prosecution be allowed to intentionally ignore and
violate the appellant’s right to a fair trial, even against
admonition of the trial court, when the violation and ignoring of
the admonition resulted in the jury hearing an extremely
prejudicial and speculative statement that, single handedly, could
have resulted in the jury finding appellant intended to seriously
harm the alleged victim? Appellant urges this reviewing court to
assess the record and reverse the matter, there holding that
appellant was deprived of a fair trial when the prosecution
violated his right to by intentionally offering a statement, against
court order, that on its lonesome would suffice to find the mens
rea element.
Fifth Assignment of Error
Is it effective assistance of counsel to stipulate to highly
prejudicial evidence and in essence waive all rights and
arguments related to and under Evid.R. 609, in an effort to
mitigate at or streamline trial, where that strategy falls below a
reasonable standard of care causing a guilty verdict, when
considering appellant requested a jury trial of peers who did not
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Case No. 5-22-39
have sufficient instruction or opportunity to fairly judge his
actions on the occasion for which he was charged without holding
his past violent crime against him or treating the evidence as
character evidence? Appellant urges this reviewing court to
assess the record and reverse the matter, there holding trial
counsel’s strategy fell below a reasonable standard of care by
employing an obvious, losing strategy, and the outcome would
have been different in that appellant would not have been found
guilty and sentenced.
Sixth Assignment of Error
Should consecutive sentences be imposed where the record does
not support that all the findings related to R.C. 2929.14, were
supported in the record with competent, credible evidence?
Appellant urges this reviewing court to assess the record and
reverse the matter, there holding that consecutive sentences were
inappropriate under the law.
First Assignment of Error
{¶12} Passmore asserts that his conviction for felonious assault is not
supported by sufficient evidence, arguing that the State failed to produce evidence
that he intended to cause serious physical harm to Jaquez.
Legal Standard
{¶13} “A challenge to the sufficiency of the evidence supporting a
conviction requires a court to determine whether the state has met its burden of
production at trial.” In re Swift, 8th Dist. Cuyahoga No. 79610, 2002-Ohio-1276, ¶
19. This “analysis addresses the question of whether adequate evidence was
produced for the case to be considered by the trier of fact and, thus, whether the
evidence was ‘legally sufficient to support the verdict * * *.’” State v. Barga, 3d
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Case No. 5-22-39
Dist. Shelby No. 17-17-14, 2018-Ohio-2804, ¶ 8, quoting State v. Worthington, 3d
Dist. Hardin No. 6-15-04, 2016-Ohio-530, ¶ 12.
{¶14} An appellate court is not to examine whether the evidence presented
should be believed but should rather “examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt.” State v. Johnston, 3d Dist. Logan
No. 8-13-10, 2014-Ohio-353, ¶ 10, quoting State v. Jenks, 61 Ohio St.3d 259, 274,
574 N.E.2d 492 (1991), superseded by state constitutional amendment on other
grounds, State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668 (1997).
On appeal, the applicable standard
is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found that the
essential elements of the crime were proven beyond a reasonable
doubt.
State v. Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 27, quoting State
v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 62 (3d Dist.).
{¶15} To establish a conviction for the offense of felonious assault in
violation of R.C. 2903.11(A)(1), the State must prove that the defendant knowingly
* * * cause[d] serious physical harm to another * * *.” R.C. 2903.11(A)(1). “A
person acts knowingly, regardless of purpose, when the person is aware that the
person’s conduct will probably cause a certain result or will probably be of a certain
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Case No. 5-22-39
nature.” R.C. 2901.22(B). Further, R.C. 2901.01(A)(5) defines “serious physical
harm to persons” as including the following:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity;
(d) Any physical harm that involves some permanent disfigurement
or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged
or intractable pain.
R.C. 2901.01(A)(5). “The Ohio Supreme Court has held that one can infer from the
defendant’s action under the circumstances whether the defendant possessed an
intent to cause serious physical harm.” State v. Ross, 2d Dist. Montgomery No.
20031, 2004-Ohio-3093, ¶ 21, citing State v. Seiber, 56 Ohio St.3d 4, 15, 564 N.E.2d
408, 420 (1990).
Legal Analysis
{¶16} On appeal, Passmore first argues that the State did not produce
evidence that Jaquez suffered serious physical harm. However, during his trial
testimony, Passmore affirmed that his “actions caused serious physical harm to
Latasha [Jaquez.]” (Tr. 456). Further, the State introduced evidence that was
consistent with Passmore’s admission. Officer Burkholder testified that, when he
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Case No. 5-22-39
arrived at Circle K, Jaquez appeared to be having symptoms of a concussion and
that he was holding a towel to her head because she had been bleeding. He stated
that Jaquez told him “that she had hit her head, and that she thought she lost
consciousness.” (Tr. 352). He further testified that Jaquez “was nodding off or
losing consciousness or maybe just regaining consciousness, like she was very
disoriented.” (Tr. 351).
{¶17} Paramedic Kevin Kozel (“Kozel”) testified that he was involved in
treating Jaquez. Kozel stated that she had an elevated heart rate and blood pressure
levels. Another EMS first responder, Diane Pack (“Pack”), testified that she
observed a laceration on Jaquez’s head that was “significantly deep” and was
informed that Jaquez had lost consciousness. (Tr. 307). Pack testified that she
helped place a C-Collar around Jaquez’s neck to stabilize her and that Jaquez had
to be carried out of Circle K on a stretcher.
{¶18} Jaquez testified that, after her head struck the counter, she hit the
ground and could not initially move her body. She could not stand up, was dizzy,
and was having issues with her vision. At the hospital, seven staples were put into
her head to close the laceration. Jaquez testified that she had trouble with dizziness,
nausea, and balance for around one month after the incident, causing her to seek
follow up treatment from her doctor. She also reported that she had a concussion
and that she still experienced numbness in the affected area of her skull at the time
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Case No. 5-22-39
of trial. The State introduced Jaquez’s medical records and pictures of her injuries
to corroborate these statements.
{¶19} From this evidence, a rational trier of fact could conclude that Jaquez
sustained serious physical harm from having her head slammed into the counter at
Circle K. See State v. Burks, 3d Dist. Seneca No. 13-05-36, 2006-Ohio-2142, ¶ 19-
20 (concluding evidence that the victim sustained a concussion was sufficient to
establish serious physical harm); State v. Battles, 8th Dist. Cuyahoga No. 109265,
2021-Ohio-310, ¶ 17; State v. Long, 2014-Ohio-4416, 19 N.E.3d 981, ¶ 57 (11th
Dist.). Thus, this first argument is without merit.
{¶20} Second, Passmore asserts the State did not establish that he “acted with
the awareness” that his actions would cause Vaquez to be injured. Appellant’s
Brief, 12. However, Jaquez testified that Passmore grabbed both sides of her head
with his hands and then slammed her head onto the counter. She described his
actions as “bash[ing]” her “head into the counter.” (Tr. 289). Jaquez stated that she
then fell to the ground and was unable to stand back up.
{¶21} Bair similarly testified that Passmore grabbed Jaquez’s head and
“slammed” her head “straight back” onto the counter. (Tr. 371). She then stated
that she heard a “thud” when Jaquez’s head hit the floor and that her body began
shaking. (Tr. 371). During his testimony, Passmore admitted that both of his hands
were on Jaquez’s head and that he “forcibly push[ed]” her “face first” down into the
counter. (Tr. 465). He also stated, “I pushed her as hard as I possibly could, because
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Case No. 5-22-39
I was trying to get her away from me. And so my momentum brought us into the
counter.” (Tr. 447).
{¶22} The undisputed evidence presented at trial indicates that Passmore
grabbed Jaquez’s head with both of his hands and forcefully slammed her skull into
the counter “as hard as * * * [he] possibly could * * *.” (Tr. 447). He acted with
such force that Jaquez reportedly lost consciousness, fell to the floor, and sustained
a concussion. State v. Beaver, 3d Dist. Union No. 14-13-15, 2014-Ohio-4995,
(“Punching someone in the face satisfies the requisite culpable mental state for
felonious assault * * *.”); State v. Vanover, 4th Dist. Lawrence No. 98CA38, 1999
WL 354337, *5, (May 18, 1999) (“[T]he mere act of punching someone in the head
area carries with it the risk of causing serious physical harm.”); State v. Lloyd, 8th
Dist. Cuyahoga No. 109128, 2021-Ohio-1808, ¶ 55 (holding that “a single punch to
the head or face can support a conviction for felonious assault”).
{¶23} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable trier of fact could conclude that Passmore acted with the
requisite intent to commit felonious assault. Serious physical harm—in this case, a
deep laceration and concussion—was a “natural and logical consequence[]” of
Passmore’s conduct. Lloyd at ¶ 57. See State v. Higgins, 9th Dist. Summit No.
26120, 2012-Ohio-5650, ¶ 19 (To act knowingly, “it is only necessary that the
serious physical harm is a ‘reasonable and probable’ result of his action.”). Thus,
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his second argument herein is without merit. Accordingly, Passmore’s first
assignment of error is overruled.
Second Assignment of Error
{¶24} Passmore argues that his conviction for felonious assault is against the
manifest weight of the evidence.
Legal Standard
{¶25} The manifest weight of the evidence analysis examines whether the
State has carried its burden of persuasion at trial. State v. Wilson, 2022-Ohio-504,
185 N.E.3d 176, ¶ 58 (3d Dist.). In this process, “an appellate court’s function * *
* is to determine whether the greater amount of credible evidence supports the
verdict.” State v. Harvey, 3d Dist. Marion No. 9-19-34, 2020-Ohio-329, ¶ 12,
quoting Plott, supra, ¶ 73. Accordingly, an “appellate court sits as a ‘thirteenth
juror’ * * *.” Barga, supra, at ¶ 19, quoting Thompkins, supra, at 388.
Appellate courts “must review the entire record, weigh the evidence
and all of the reasonable inferences, consider the credibility of
witnesses, and determine whether in resolving conflicts in the
evidence, the factfinder ‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.’”
State v. Randle, 2018-Ohio-207, 104 N.E.3d 202, ¶ 36 (3d Dist.), quoting Plott at ¶
73, quoting Thompkins at 387.
{¶26} “A reviewing court must, however, allow the trier of fact appropriate
discretion on matters relating to the weight of the evidence and the credibility of the
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witnesses.” State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, ¶ 38 (3d Dist.),
quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “Only
in exceptional cases, where the evidence ‘weighs heavily against the conviction,’
should an appellate court overturn the trial court’s judgment.” State v. Little, 2016-
Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter, 131 Ohio St.3d
67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
Legal Analysis
{¶27} Passmore first argues that the conclusion that Jaquez suffered serious
physical harm in this case is against the manifest weight of the evidence. However,
at trial, Passmore did not dispute that Jaquez had suffered serious physical harm.
Further, Jaquez testified that she had a concussion; received seven staples to close
the laceration in her head; and still had symptoms related to this injury at the time
of the trial. Kozel, Pack, and Officer Burkholder also testified about the nature and
extent of Jaquez’s injuries. The State introduced pictures of Jaquez’s injuries and
copies of her medical records at trial. Given this evidence, we cannot conclude that
the evidence in the record weighs more heavily against the finding that Jaquez
suffered serious physical harm.
{¶28} Passmore next argues that the conclusion that he acted with the intent
required for a felonious assault conviction is against the manifest weight of the
evidence. At trial, Jaquez testified that Passmore grabbed her head with both of his
hands and then slammed her skull against the counter. During his testimony,
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Passmore admitted that he put both of his hands on Jaquez’s head and pushed her
head down. He testified that he “pushed her as hard as [he] * * * possibly could *
* *.” (Tr. 447). However, Passmore also testified that he did not intend to slam
Jaquez’s head into the counter and that he only meant to push her away. The jury
heard this testimony and watched the security camera footage of this altercation.
Having reviewed the same materials, we cannot conclude that the evidence in the
record weighs more heavily against the conclusion that Passmore acted with the
intent required to commit felonious assault.
{¶29} Finally, Passmore argues that the conclusion that he did not act in self-
defense was against the manifest weight of the evidence. Under Ohio law, if the
defendant carries the burden of producing evidence that tends to establish that he or
she acted in self-defense, the State then bears the burden of persuasion in
establishing that the defendant did not use force in self-defense. State v. Grant,
2023-Ohio-2720, --- N.E.3d ---, ¶ 68 (3d Dist.). Thus, the State must “disprove at
least one of the elements of self-defense beyond a reasonable doubt.” State v.
Carney, 10th Dist. Franklin No. 19AP-402, 2020-Ohio-2691, ¶ 31.
Self-defense through the use of non-deadly force is present where:
‘(1) the accused was not at fault in creating the situation giving rise to
the affray, (2) the accused (even if mistaken) had a bona fide belief
that he was in imminent danger of any bodily harm; and (3) the only
means to protect himself from such danger was the use of force not
likely to cause death or great bodily harm.’
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State v. Eddy, 3d Dist. Allen No. 1-22-17, 2022-Ohio-3965, ¶ 65, quoting State v.
Chavez, 3d Dist. Seneca Nos. 13-19-05, 13-19-06, and 13-19-07, 2020-Ohio-426, ¶
40. “The elements of self-defense are cumulative, and a defendant’s claim of self-
defense fails if any one of the elements is not present.” State v. Ridley, 1st Dist.
Hamilton No. C-210458, 2022-Ohio-2561, ¶ 15.
{¶30} As to the first element of self-defense, “Ohio courts have long
recognized that a person cannot provoke [an] assault or voluntarily enter an
encounter and then claim a right of self-defense.” State v. Woodson, 6th Dist. Lucas
No. L-21-1068, 2022-Ohio-2528, ¶ 82, quoting State v. Nichols, 4th Dist. Scioto
No. 01CA2775, 2002 WL 126973, *3 (Jan. 22, 2002). We turn to examining the
circumstances leading up the physical altercation in this case.
{¶31} Jaquez testified that, while she was in line to buy cigarettes at Circle
K, Passmore was making comments to her, but she ignored him. At this point, Tate
positioned herself in between Jaquez and Passmore. Jaquez testified that Tate then
asked Passmore to stop making these comments. At this point, Tate and Passmore
began to argue. Jaquez turned towards these two telling them to stop arguing.
Passmore eventually called Tate a “b***h” and then pushed Tate in the face. (Tr.
262).
{¶32} Jaquez testified that she then turned to tell LaRue to call 9-1-1.
However, at this moment, Passmore grabbed her with both hands and slammed her
head against the counter. Jaquez testified that she never grabbed Passmore but was
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scared of him based on his actions. She stated that she did not approach him from
behind; that she did not touch him; and that she did not try to touch him. She further
clarified that when she turned to tell them to stop arguing that she was at Passmore’s
side, not behind him.
{¶33} Bair was the designated driver for Tate’s birthday party on the night
of the incident and testified that she had only consumed half of a beer that night.
Bair was inside Circle K at the time of the incident and gave the following account
of what transpired:
He [Passmore] pushed Brittney [Tate] in her face, said something to
Latasha [Jaquez]. I did not hear that. And Brittney said, you’re not
going to talk to my friend that way. And so they were arguing, and
then Latasha said something back. And at that point then is when he
grabbed Latasha and slammed her head on the floor.
(Tr. 370). She affirmed that she did not “ever see Latasha physically fight with the
Defendant[.]” (Tr. 370). Similarly, LaRue affirmed that he did not see Jaquez “do
anything threatening to [Passmore.]” (Tr. 241).
{¶34} During his testimony, Passmore stated that Tate moved closer to him
as they were arguing and that he believed her to be intoxicated. He then remembers
Tate “rushing towards” him. (Tr. 445). He testified that he pushed her in response.
At this point, his sister got involved in the struggle with Tate. Passmore testified
that he then felt Jaquez on his back. (Tr. 446). In response, he grabbed her and
“pushed her as hard as [he] * * * possibly could * * *.” (Tr. 447). He stated that
he did not intend to hit her head on the counter. He further stated that he “pushed
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Latasha [Jaquez] initially, because * * * [he] felt like she was going to harm” him.
(Tr. 449). On cross-examination, Passmore testified that he did not recall whether
he told the police that Jaquez had put her hands on him.
{¶35} Next, “[t]he second element of a self-defense claim is a combined
subjective and objective test.” State v. Hunt, 8th Dist. Cuyahoga No. 111892, 2023-
Ohio-1977, ¶ 26. Thus, “self-defense ‘is placed on the grounds of the bona fides of
defendant’s belief, and reasonableness therefor, and whether, under the
circumstances, he exercised a careful and proper use of his own faculties.’” State
v. Thomas, 77 Ohio St.3d 323, 330, 1997-Ohio-269, 673 N.E.2d 1339, quoting State
v. Sheets, 115 Ohio St. 308, 310, 152 N.E. 664 (1926). “Part of this entails showing
that the defendant used ‘only that force that is reasonably necessary to repel the
attack.’” State v. Ray, 12th Dist. Butler, 2013-Ohio-3671, 997 N.E.2d 205, ¶ 30,
quoting State v. Bundy, 2012-Ohio-3934, 974 N.E.2d 139, ¶ 55 (4th Dist.).
{¶36} At trial, Passmore testified that, when he was in the parking lot of
Circle K, he told his sister that they needed to lock the truck because a person could
rob it in seven seconds. Tate was nearby and said she would only need two seconds.
Passmore reported that his interaction with Tate resumed when he was in line in
front of the counter. He stated that Tate said, “I got n****z for you.” (Tr. 442).
Passmore testified that he interpreted this to mean that she was “going to call
somebody up here to kill me.” (Tr. 442). He also testified that he did not see any
weapons in her possession.
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{¶37} On cross-examination, he stated he did not report his interaction with
Tate in the parking lot to the police. He also admitted that he reported that Tate
made him “uncomfortable” and did not report that he was “scared” of her. (Tr. 478).
He also affirmed that he told the police that Tate was “talking sh*t to [him]”; that
this was disrespectful; and that he “didn’t like that * * *.” (Tr. 478). While he had
previously stated that Tate had made comments that led him to believe she might
call someone to beat him, Passmore also admitted that he did not remember whether
Tate had a phone readily available to use for this purpose. He also testified that he
did not see Tate or Jaquez with any weapons.
{¶38} Passmore testified that he grabbed Jaquez’s head with both of his
hands and pushed her as hard as he could. Bair and LaRue stated that Jaquez was
slammed against the counter. Both of them testified that Jaquez did not physically
engage or threaten Passmore in the lead up to her injury. After the incident,
Passmore further admitted that he fled the scene and lied about his name to the
police. His explanation for this behavior was that he wanted to “[g]et away from
those women” and that he wanted to avoid the legal issues this incident would cause
for him given he had an outstanding warrant for his arrest in Michigan. (Tr. 473).
{¶39} In summary, Passmore’s account of what transpired conflicts at points
with the testimony that was provided by the State’s witnesses. However, “[a]
conviction is not against the manifest weight of the evidence merely because there
is conflicting evidence before the trier of fact.” State v. Jackson, 12th Dist. Butler
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No. CA2001-10-239, 2002-Ohio-4705, ¶ 48. Jaquez testified that Passmore began
interacting with her by making comments that she chose to ignore. She also testified
that she did not threaten or make physical contact with Passmore before she was
assaulted. Bair and LaRue’s testimony was in agreement with Jaquez on this point.
Further, Passmore was not able to explain how slamming Jaquez’s head into the
counter was a proportional response to Tate’s purportedly belligerent attitude or was
necessary to defend himself in any way.
{¶40} Having examined the evidence in the record, we cannot conclude that
the evidence weighs more heavily against Passmore’s conviction for felonious
assault. Further, we also find no indication that the jury lost its way and returned a
verdict against the manifest weight of the evidence by concluding that Passmore did
not act in self-defense. Accordingly, Passmore’s second assignment of error is
overruled.
Third Assignment of Error
{¶41} Passmore argues that the trial court erred in ordering him to pay the
costs of prosecution and the fees listed in R.C. 2929.18(A)(4) without first
considering his ability to pay these costs.
Legal Standard
{¶42} R.C. 2947.23(A)(1)(a) states that, “[i]n all criminal cases, * * * the
judge or magistrate shall include in the sentence the costs of prosecution * * * and
render a judgment against the defendant for such costs.” R.C. 2947.23(A)(1)(a).
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This provision requires the trial court to assess the costs of prosecution against all
criminal defendants, regardless of whether the defendant is indigent. State v.
Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 6. Thus, “[t]he
costs of prosecution are mandatory * * *, and trial courts are obligated to impose
the costs of prosecution irrespective of a defendant’s ability to pay.” State v. West,
3d Dist. Seneca No. 13-22-07, 2022-Ohio-4069, ¶ 30. Further, “[t]he term ‘cost of
prosecution,’ although not defined, is synonymous with ‘court costs’ as defined by
R.C. 2949.111(A)(1), meaning ‘any assessment that the court requires an offender
to pay to defray the costs of operating the court.’” State v. Jackson, 2013-Ohio-
1390, 990 N.E.2d 184, ¶ 19 (3d Dist.), quoting State v. Hall, 12th Dist. No. CA2011-
05-043, 2011-Ohio-5748, ¶ 16, quoting R.C. 2949.111(A)(1).
Legal Analysis
{¶43} In its judgment entry of sentencing, the trial court ordered Passmore
“to pay all costs of prosecution, and any fees permitted pursuant to R.C.
2929.18(A)(4).” (Doc. 82). Passmore argues that the trial court did not consider
his ability to pay before ordering him to pay these costs. While a trial court must
consider a defendant’s ability to pay before imposing a number of financial
sanctions, the costs of prosecution are mandatory and must be imposed regardless
of a defendant’s ability to pay. Taylor at ¶ 6. See R.C. 2929.19(B)(5). Thus, a
“trial court need not consider a defendant’s ability to pay * * * prior to imposing
court costs.” State v. Lux, 2d Dist. Miami No. 2010-CA-30, 2012-Ohio-112, ¶ 45.
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{¶44} Further, this Court has previously held that the fees in R.C.
2929.18(A)(4) “are part of the cost of prosecution * * *.” State v. Nevels, 3d Dist.
Logan No. 8-15-12, 2016-Ohio-3497, ¶ 14, quoting Jackson, 2013-Ohio-
1390supra, at ¶ 19. For this reason, the trial court did not have to consider
Passmore’s ability to pay before ordering him to pay the fees under R.C.
2929.18(A)(4). State v. Lantz, 6th Dist. Fulton No. F-18-011, 2019-Ohio-3307, ¶
23-25. See also State v. Rose, 2022-Ohio-3529, 202 N.E.3d 1, fn. 7 (7th Dist.); Hall,
supra, at ¶ 16. But see State v. Rickett, 4th Dist. Adams No. 07CA846, 2008-Ohio-
1637, ¶ 4-5. Thus, with this argument, Passmore has not identified an error that was
committed in the process of ordering him to pay these costs. Accordingly, his third
assignment of error is overruled.
Fourth Assignment of Error
{¶45} Passmore argues that the State engaged in prosecutorial misconduct
by engaging in a line of questioning that deprived him of his right to a fair trial.
Legal Standard
{¶46} To establish prosecutorial misconduct, the “defendant must prove the
prosecutor’s acts were improper and that they prejudicially affected the defendant’s
substantial rights.” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916,
¶ 29, quoting State v. Merriweather, 2017-Ohio-421, 84 N.E.3d 72, ¶ 45 (12th
Dist.).
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Because prosecutorial misconduct implicates due-process concerns,
“[t]he touchstone of the analysis ‘is the fairness of the trial [or
proceeding], not the culpability of the prosecutor.’” State v. Jones,
135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 200, quoting
Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78
(1982).
State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 162.
“The identified conduct is examined in the context of the entire proceeding.” State
v. Tebelman, 2023-Ohio-882, 211 N.E.3d 150, ¶ 91 (3d Dist.). “To demonstrate
prejudice, ‘the defendant must show that there is a reasonable probability that but
for the prosecutor’s misconduct, the result of the proceeding would have been
different.’” Id. at ¶ 92, quoting State v. Cureton, 9th Dist. Medina Nos. 03CA0009-
M, 2003-Ohio-6010, ¶ 27.
Legal Analysis
{¶47} In this case, Officer Burkholder was given the opportunity to view and
listen to several recordings of the incident that were captured by the security
cameras in Circle K. However, the audio recordings captured by the security
cameras were not properly transferred when Circle K personnel made a copy of this
material for law enforcement. As the audio was not preserved, the State could only
play the video footage of the incident for the jury at trial.
{¶48} Since Officer Burkholder had listened to the audio recording, the State
asked him if he had heard Passmore make any statements in the lead up to the
physical altercation. In response, he testified that Passmore told Tate, “I’m going
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to kill you.” (Tr. 356). The Defense then objected to this statement, arguing that
Officer Burkholder did not have a basis to believe that the voice he heard on the
recording belonged to Passmore. In response, the State argued that this was Officer
Burkholder’s personal observation of the recording and that any statements from the
party opponent were admissible at trial. The trial court sustained the objection
because of a lack of certainty regarding the identity of the declarant.
{¶49} Upon issuing this ruling, the trial court immediately gave a curative
instruction, telling the jurors to disregard Officer Burkholder’s testimony regarding
the statement that he had heard on the recording. Further, in its jury instructions,
the trial court again stated that the jurors were not to consider any testimony that
was stricken and were to act as though they had never heard these statements. “A
jury is presumed to follow a trial court’s instructions, including curative
instructions.” State v. Akers, 3d Dist. Logan No. 8-19-31, 2019-Ohio-5171, ¶ 32.
See also State v. Echols, 2023-Ohio-2206, --- N.E.3d ---, ¶ 38 (1st Dist.). Having
reviewed the evidence, nothing in the record suggests that the jurors failed to
comply with these instructions.
{¶50} Further, LaRue, Jaquez, and Bair testified that Jaquez did not lay a
hand on Passmore before he slammed her against the counter. The testimony also
indicated that she was turning away from Passmore and towards LaRue at the time
he assaulted her. The jurors were also able to compare these accounts with the video
footage of the altercation that was played for them at trial. No testimony suggested
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that Jaquez threatened Passmore. After the incident, Passmore then fled the scene
and gave the police a false name. Given these facts, we conclude that, even if this
question from the prosecutor was improper, Passmore has not demonstrated that the
elicited response affected his substantial rights in this case such that, without it, there
is a reasonable probability that the outcome would have been different.
{¶51} In conclusion, regardless of whether the identified line of questioning
was improper, Passmore has not raised an argument that demonstrates his
substantial rights were affected and that he was denied his right to a fair trial.
Further, Passmore has not given us a reason to dispense with the presumption that
the jurors followed the trial court’s repeated instructions to disregard the statement
that was stricken from Officer Burkholder’s testimony. For these reasons, his fourth
assignment of error is overruled.
Fifth Assignment of Error
{¶52} Passmore argues that he was denied his constitutional right to the
effective assistance of counsel.
Legal Standard
{¶53} “Under Ohio law, ‘a properly licensed attorney is presumed to carry
out his duties in a competent manner.’” State v. Gee, 3d Dist. Putnam No. 12-92-9,
1993 WL 270995 (July 22, 1993). “For this reason, the appellant has the burden of
proving that he or she was denied the right to the effective assistance of counsel.”
State v. Cartlidge, 3d Dist. Seneca No. 13-19-44, 2020-Ohio-3615, ¶ 39. “In order
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to prove an ineffective assistance of counsel claim, the appellant must carry the
burden of establishing (1) that his or her counsel’s performance was deficient and
(2) that this deficient performance prejudiced the defendant.” State v. McWay, 3d
Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24, quoting Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶54} In order to establish deficient performance, the appellant must
demonstrate that trial “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 35, quoting
Strickland at 687. “[D]ebatable trial tactics do not establish ineffective assistance of
counsel.” State v. Queen, 3d Dist. Logan No. 8-19-41, 2020-Ohio-618, ¶ 14,
quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶
101. Further, “[t]actical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance.” State v. Harrison, 2015-Ohio-1419, 31
N.E.3d 220, ¶ 75 (3d Dist.).
{¶55} A trial attorney is not required to “raise meritless issues or even all
arguably meritorious issues.” State v. Mayse, 2017-Ohio-1483, 88 N.E.3d 1208, ¶
24 (3d Dist.). Thus, as a general matter, “[d]efense counsel’s decision to stipulate
to evidence in a case is a tactical decision.” State v. Townsend, 9th Dist. Summit
No. 23397, 2007-Ohio-4421, ¶ 27. “Moreover, counsel is not deficient by
stipulating to facts for which there is ample evidence, or to evidence that is
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‘unassailable.’” State v. Mackey, 12th Dist. Warren No. CA99-06-065, 2000 WL
190033, *5 (Feb. 14, 2000).
{¶56} “In order to establish prejudice, ‘the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different.’” State v. Berry, 3d Dist. Union No. 14-20-05, 2021-Ohio-1132, ¶
122, quoting State v. Bibbs, 2016-Ohio-8396, 78 N.E.3d 343, ¶ 13 (3d Dist.). “If
the appellant does not establish one of these two prongs, the appellate court does
not need to consider the facts of the case under the other prong of the test.” State v.
Gear, 3d Dist. Van Wert No. 15-22-03, 2023-Ohio-1246, ¶ 50.
Legal Analysis
{¶57} Before trial, the parties submitted a number of stipulations to the trial
court. Passmore makes arguments about two of these stipulations to establish his
ineffective assistance of counsel claim. First, defense counsel stipulated to the
admission of one of his prior convictions at trial. Before Passmore testified in his
defense, the trial court engaged in an extended discussion with the parties about the
use of his criminal history pursuant to Evid.R. 609(A)(2). In this discussion, defense
counsel indicated that he would question Passmore about his criminal past on direct
examination. The initial purpose of this inquiry was to provide an explanation for
why Passmore fled the scene of the incident in the pickup truck and gave a fake
name to the police upon being stopped.
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{¶58} Defense counsel pointed to the fact that a warrant had been issued for
Passmore in Michigan because he had failed to report in compliance with the terms
of his parole. During his testimony, Passmore indicated that he believed that the
police would have learned about the outstanding warrant if he remained at the scene
or gave his actual name. He further explained that he did not want to go back to
prison because he now had a one-year-old daughter. Defense counsel argued that
Passmore acted in self-defense at Circle K but did not remain on the premises
afterwards and gave a fake name to law enforcement because of the warrant issued
for him in Michigan. This was part of a trial strategy to establish that Passmore’s
actions after the incident were not reflective of any consciousness of guilt on his
part but his fear of returning to prison in spite of his purported innocence in the
earlier incident.
{¶59} Another purpose of this inquiry was to explain why Passmore was put
on heightened alert by Tate’s comments. At trial, the Defense questioned Passmore
about his experiences in prison. Passmore testified that he witnessed a number of
serious fights while incarcerated and was, for this reason, wary for his safety. He
said, “you got to be able to, you know protect yourself. You got to be ready at any
moment in time, because anything can happen to you.” (Tr. 433). The Defense
later asserted that this wariness is why he responded so quickly to defend himself in
Circle K. Given this context, we conclude that the decision to make this challenged
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stipulation falls squarely within the realm of debatable trial tactics and strategies.
This decision does not constitute deficient performance.
{¶60} Second, his counsel stipulated to the admission of the video footage
from the security camera in Circle K. The evidence in the record indicates that the
Circle K employee who was copying the security camera footage from the night of
the incident failed to record the sound. For this reason, the recording presented at
trial had video footage but no audio.1 However, on appeal, Passmore has not
presented the grounds upon which defense counsel should have objected to this
video footage or raised an argument that would suggest that this video footage was
even arguably inadmissible.
{¶61} At trial, the assistant manager of that Circle K location, LaRue, was
called as a witness and identified the video footage for the record. See State v.
Spencer, 4th Dist. Pickaway No. 19CA6, 2019-Ohio-3800, ¶ 18 (holding that
objecting to properly authenticated security camera footage from a bank would have
been a futile act and that, for this reason, the failure to object did not constitute
ineffective assistance of counsel). Having reviewed the record, we find no
indication that the admission of this video footage was improper. We cannot
conclude that trial counsel’s decision to stipulate to the admission of this video
1
We also note that, as discussed in the fourth assignment of error, Officer Burkholder testified at trial that,
when he first viewed the security camera footage from Circle K, the audio was functioning and he could hear
someone state, “I’m going to kill you.” (Tr. 356). He testified that he believed that Passmore made this
statement. After objecting to this testimony, Defense counsel used the fact that the audio recording was not
preserved and the resulting uncertainty about who made this remark to successfully argue for this statement
to be stricken from the record.
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footage constituted deficient performance as Passmore has not demonstrated that
objecting to this evidence would have been anything other than a futile act.
{¶62} In conclusion, Passmore has not demonstrated that defense counsel’s
performance at trial was deficient as alleged. Thus, he has failed to carry the burden
of establishing an ineffective assistance of counsel claim with these arguments.
Accordingly, his fifth assignment of error is overruled.
Sixth Assignment of Error
{¶63} Passmore argues that the imposition of consecutive sentences in this
case was not supported by the record.
Legal Standard
{¶64} “[T]he proper scope of felony sentence review by Ohio appellate
courts is set forth in R.C. 2953.08(G)(2).” State v. Redmond, 6th Dist. Lucas No.
L-18-1066, 2019-Ohio-309, ¶ 15. Pursuant to this provision, an appellate court may
modify or vacate a sentence if it clearly and convincingly finds either
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
(Emphasis added.) R.C. 2953.08(G)(2). R.C. 2929.14(C)(4) states the findings that
a trial court must make prior to imposing consecutive sentences and is expressly
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Case No. 5-22-39
included within the purview of R.C. 2953.08(G)(2)(a). R.C. 2929.14(C)(4) reads,
in its relevant part, as follows:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4). Thus, the trial court must find (1) that consecutive sentences:
are necessary to protect the public or punish the offender (“the necessity finding”);
(2) that consecutive sentences are not disproportionate to the seriousness of the
offense (“the proportionality finding”); and (3) that one of the three factors listed in
R.C. 2929.14(C)(4)(a-c) is applicable. State v. Rodriquez, 3d Dist. Hancock Nos.
5-19-40, 5-19-41, 2020-Ohio-2987, ¶ 6.
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Case No. 5-22-39
{¶65} If the trial court has made the required findings under R.C.
2929.14(C)(4), “the appellate court may then determine whether the record clearly
and convincingly supports those findings.” State v. Gwynne, --- Ohio St.3d ---,
2022-Ohio-4607, --- N.E.2d ---, ¶ 26. “R.C. 2953.08(G)(2) does not require
deference to the trial court’s findings under R.C. 2929.14(C)(4).” Id. at ¶ 31.
Rather, [a]ppellate review “of the record and findings is de novo with the ultimate
inquiry being whether it clearly and convincingly finds * * * that the evidence in
the record does not support the consecutive-sentence findings * * *.” Id. at ¶ 27.
Clear and convincing evidence is that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but not
to the extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be
established.
State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 12, quoting Cross
v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus
(1954). In examining the findings on appeal,
the first core requirement is that there be some evidentiary support in
the record for the consecutive-sentence findings that the trial court
made. A record that is devoid of evidence simply cannot support the
findings required by R.C. 2929.14(C)(4); there must be an evidentiary
basis upon which these findings rest.
Gwynne at ¶ 29. The second core requirement is that the evidentiary basis be
adequate to fully support the trial court’s consecutive-sentence
findings. This requires the appellate court to focus on both the
quantity and quality of the evidence in the record that either supports
or contradicts the consecutive-sentence findings.
-32-
Case No. 5-22-39
Id. at ¶ 29. Thus, “[t]he record must contain a basis upon which a reviewing court
can determine that the trial court made the findings required by R.C. 2929.14(C)(4)
before it imposed consecutive sentences.” Wilson, supra, at ¶ 148, quoting State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28.
Legal Analysis
{¶66} On appeal, Passmore argues that the findings made by the trial court
were not supported by the record. In this case, the trial court ordered the prison term
imposed to be served consecutively to the prison term he was “currently serv[ing]
in Michigan * * *.” (Sentencing Tr. 30). At sentencing, the trial court expressly
found that imposing this sentence consecutively was “necessary * * * to protect the
public from future crime” and was “not * * * disproportionate to the seriousness of
the conduct and the danger posed by the Defendant.” (Sentencing Tr. 30). The trial
court concluded that the factor listed in R.C. 2929.14(C)(4)(c) was applicable in this
case, finding that consecutive sentences were necessary to protect the public based
upon Passmore’s “significant criminal record.” (Sentencing Tr. 28).
{¶67} Initially, Passmore argues that this case does not present multiple
offenses as required under R.C. 2929.14(C)(4) in order to impose consecutive
sentences. At sentencing, defense counsel acknowledged that the trial court could
impose consecutive sentences in this case. Further, “the ‘multiple prison term’
language * * * from R.C. 2929.14(C)(4) has been interpreted to include previously
-33-
Case No. 5-22-39
imposed prison terms from other jurisdictions.” State v. Knox, 8th Dist. Cuyahoga
No. 107414, 2019-Ohio-3567, fn. 2. For this reason, his first argument herein is
without merit. We turn now to examining whether the evidence in the record
supports the trial court’s R.C. 2929.14(C)(4) findings.
{¶68} As to the necessity finding, the trial court stated that, while Tate “may
have been, to some degree, the provocateur,” the altercation “was a matter of words,
which never justifies a response * * *.” (Sentencing Tr. 22, 23). On the one hand,
the trial court noted that Tate’s actions indicated that Passmore did not act
“indiscriminately * * * without any explanation * * *.” (Id. at 22). On the other
hand, the trial court also noted that Passmore “directed * * * [his] anger and * * *
[his] violence at the wrong person” as Jaquez “was not involved in precipitating this
event at all.” (Sentencing Tr. 22). The trial court also noted that Passmore was “in
Ohio, without permission” during his parole. (Id. at 26). Based on these facts, the
trial court concluded that consecutive sentences were necessary to protect the public
from future harm.
{¶69} As to the proportionality finding, the trial court discussed the fact that
“Jaquez was seriously injured” and now “has some ongoing issues and some
psychological issues in terms of her concern.” (Sentencing Tr. 23). At trial,
Passmore admitted that Jaquez suffered serious physical harm during the incident.
The testimony indicated that Passmore’s actions immediately rendered Jaquez
unable to stand or see clearly. Jaquez also testified about her injuries and indicated
-34-
Case No. 5-22-39
that she was still experiencing numbness around the area of her head wound by the
time of the trial. Based on these facts, the trial court concluded that consecutive
sentences were not disproportionate to the seriousness of the offense.
{¶70} As to the R.C. 2929.14(C)(4)(c) finding, the State described
Passmore’s history of criminal conduct at sentencing. His criminal record indicated
that he had convictions for participating in three armed robberies. He had served
over thirteen years in prison before being released on parole in 2017 in Michigan.
Within three months of his release, he committed the offenses of disorderly conduct
and resisting arrest. By 2020, he had absconded on his parole, causing a warrant to
be issued for his arrest. This warrant remained outstanding until Passmore was
apprehended after the incident in this case. Based on these facts, the trial court
found that Passmore’s history of criminal conduct indicated that consecutive
sentences were necessary to protect the public from future crime.
{¶71} Having examined the evidence, we cannot conclude that the trial
court’s findings are clearly and convincingly unsupported by the record. We also
note that the trial court not only made the required findings but also incorporated
them into its judgment entry of sentencing. Thus, this case does not present the
grounds set forth in R.C. 2953.08(G)(2) to modify or vacate the imposition of
consecutive sentences. Accordingly, his sixth assignment of error is overruled.
-35-
Case No. 5-22-39
Conclusion
{¶72} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Hancock County Court of Common Pleas
is affirmed.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/hls
-36-
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"7",
"12",
"17",
"18",
"26"
]
Law
9882747
[SEGMENT 1]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
STATE OF OHIO, : Case Nos. 23CA6, 23CA7
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
SHAWN PRICE, :
Defendant-Appellant. : RELEASED 4/26/2024
______________________________________________________________________
APPEARANCES:
Christopher Bazeley, Cincinnati, Ohio, for appellant.
James K. Stanley, Meigs County Prosecutor, Pomeroy, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Shawn Price appeals his conviction following a guilty plea to one second-
degree felony count of possession of drugs and one third-degree felony count of drug
trafficking. Price contends that the trial court failed to properly advise him of his rights
under the Reagan Tokes Act as required by R.C. 2929.19. He argues that the sentence
is contrary to law and must be remanded back to the trial court for resentencing. The state
concedes this error. We agree and find that the trial court failed to provide the required
notification under R.C. 2929.19(B)(2)(c) and therefore his sentence is contrary to law. We
sustain Price's sole assignment of error and remand for resentencing.
I. FACTS AND PROCEDURAL HISTORY
{¶2} The Meigs County grand jury indicted Price on four counts of possession of
drugs in violation of R.C. 2925.11, three which were second-degree felonies and one a Meigs App. Nos. 23CA6, 23CA7
fifth-degree felony, and four counts of drug trafficking in violation of R.C. 2925.03, three
which were second-degree felonies and one a fifth-degree felony. Later, in a separate
case that was subsequently consolidated, the grand jury indicted Price on six counts each
of possession of drugs and drug trafficking, violations of R.C. 2925.11 and R.C. 2925.03,
respectively. One of the drug possession charges was a first-degree felony, one was a
third-degree felony, and four were fifth-degree felonies. Three of the drug trafficking
charges were fifth-degree felonies, one was a fourth-degree felony, one was a third-
degree felony, and one was a first-degree felony.
{¶3} At a consolidated plea hearing, Price pleaded guilty to one count of drug
possession, a second-degree felony, and one count of drug trafficking, a third-degree
felony. At sentencing, the trial court sentenced Price to a five to seven-and-one-half-year
prison term for drug possession and a two-year prison term for drug trafficking, to be
served consecutively. Price appealed.
II. ASSIGNMENT OF ERROR
{¶4} Price presents the following assignment of error:
The trial court failed to properly advise Price of his rights under the
Regan [sic] Tokes Act as required by R.C. 2929.19.
III. LEGAL ANALYSIS
{¶5} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2):
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following: Meigs App. Nos. 23CA6, 23CA7
(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶6} We may vacate or modify a felony sentence if we clearly and convincingly
find that the record does not support the trial court's findings. [CITATION]. “ ‘This is an extremely deferential standard
of review.’ ” [CITATION]. Clear and convincing evidence is proof that is more than a “mere
preponderance of the evidence” but not of such certainty as “beyond a reasonable doubt,”
and produces in the mind a “firm belief or conviction” as to the facts sought to be
established. [CITATION].
{¶7} Here, Price did not object to the trial court’s instructions at sentencing and
has forfeited this issue, absent plain error. [CITATION]. For a reviewing court to find plain error (1) there must be an
error, i.e., “a deviation from a legal rule,” (2) the error must be plain, i.e., “an ‘obvious'
defect in the trial proceedings,” and (3) the error must have affected “substantial rights,”
i.e., it “must have affected the outcome of the trial.” [CITATION]. A sentence is contrary to law if a trial court sentences an
offender to an indefinite prison term under the Reagan Tokes Law and fails advise the
offender of all the notifications set forth in R.C. 2929.19(B)(2)(c) at the sentencing
hearing. [CITATION]. Meigs App. Nos. 23CA6, 23CA7
[CITATION], ¶ 29. “It is well settled that a sentence that is contrary to law is plain error and an appellate court may review it for plain error.” [CITATION], ¶ 14, citing [CITATION], ¶ 18.
{¶8} R.C. 2929.19(B)(2)(c) sets out the notifications that are to be provided in
accordance with subsections (B)(1) and (2) which mandates that the court notify the
offender at the sentencing hearing:
(c) If the prison term is a non-life felony indefinite prison term, notify the offender of all of the following:
(i) That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender's presumptive earned early release date, as defined in section 2967.271 of the Revised Code, whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of this section if, at a hearing held under section 2967.271 of the Revised Code, the department makes specified determinations regarding the offender's conduct while confined, the offender's rehabilitation, the offender's threat to society, the offender's restrictive housing, if any, while confined, and the offender's security classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender's incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be reasonable, subject to the limitation specified in section 2967.271 of the Revised Code;
(iv) That the department may make the specified determinations and maintain the offender's incarceration under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the limitation specified in section 2967.271 of the Revised Code; Meigs App. Nos. 23CA6, 23CA7
(v) That if the offender has not been released prior to the expiration of the
offender's maximum prison term imposed as part of the sentence, the
offender must be released upon the expiration of that term.
{¶9} The trial court informed Price of the charges against him and the penalties
that could be imposed upon him and that by entering a guilty plea Price was waiving all
his constitutional rights related to a trial. Price confirmed that he understood the charges,
penalties, and constitutional rights he was waiving. However, as the state concedes, the
trial court did not provide the additional notices at the sentencing hearing concerning the
Ohio Department of Rehabilitation and Correction (ODRC) hearing process outlined in
R.C. 2929.19(B)(2)(c). After informing Price of the consecutive prison term, which was a
jointly recommended sentence, the trial court explained post-release control but did not
notify Price of the rebuttable presumption that he would be released at the expiration of
the minimum term or the hearing procedures outlined in R.C. 2929.19(B)(2)(c):
So, you will [be] subject to up to three years of post release control under
Revised Code section 2967.28. If and when the period of post release
control is imposed, following your release from prison, and if you violate
conditions of supervision, the parole board may impose a prison term as
part of your sentence of up to one half of your stated prison term. If, while
on post release control, you’re convicted of a new felony offense, in addition
to being punished for the underlying conduct, an additional prison term of
one year or what time remains on your post release control term may be
added as an additional, consecutive, or stacked penalty. You also have to
pay the court costs in both and, as I mentioned in case number * * *
22CR214 there will be the forfeitures as were previously articulated.
[SEGMENT 2]
{¶10} We find that Price's sentence was contrary to law because the trial court
failed to provide notice at the sentencing hearing of ODRC's rebuttal of the presumption
as required by subpart (B)(2)(c). See [CITATION], ¶ 24- Meigs App. Nos. 23CA6, 23CA7
30, rev'd on other grounds [CITATION], ¶ 24-30.
{¶11} We sustain Price’s sole assignment of error.
IV. CONCLUSION
{¶12} Having sustained the assignment of error, we reverse the trial court’s
sentence, and remand this cause to the trial court for resentencing.
REVERSED AND REMANDED. Meigs App. Nos. 23CA6, 23CA7
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED AND CAUSE REMANDED and
that appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk. I'm sorry, but it looks like there is no actual text of a court ruling provided. If you could provide the text, I can help you identify and anonymize the court ruling citations as per your instructions.
[CITATION]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2023-P-0053
Plaintiff-Appellant,
Criminal Appeal from the
- vs - Court of Common Pleas
QUENTON BURRELL, JR.,
Trial Court No. 2023 CR 00435
Defendant-Appellee.
OPINION
Decided: February 20, 2024
Judgment: Reversed and remanded
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
James R. Eskridge, Megargel, Eskridge, and Mullins, LLP, 231 South Chestnut Street,
Ravenna, OH 44266 (For Defendant-Appellee).
MATT LYNCH, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals from the lower court’s
sentences of defendant-appellee, Quenton Burrell, Jr., for Illegal Conveyance of
Prohibited Items onto the Grounds of a Detention Facility and Aggravated Possession of
Drugs. For the following reasons, we reverse the judgment of the lower court and remand
for further proceedings consistent with this opinion.
{¶2} On April 20, 2023, the Portage County Grand Jury issued an Indictment,
charging Burrell with Illegal Conveyance of Prohibited Items onto the Grounds of a
Detention Facility, a felony of the third degree, in violation of R.C. 2921.36; and five counts of Aggravated Possession of Drugs, felonies of the third, fourth, and fifth degree, in
violation of R.C. 2925.11.
{¶3} On June 21, 2023, a plea hearing was held and a written plea agreement
was filed. Burrell pled guilty to Illegal Conveyance (Count One) and two counts of
Aggravated Possession (Counts Three and Six), felonies of the third and fourth degree.
The court accepted his pleas and found him guilty of the offenses. It then proceeded to
sentence Burrell and found the following: “In count one, you’re sentenced to nine months;
in count three, you’re sentenced to seven months; in count six, you’re sentenced to nine
months. The sentences imposed under counts one and six are suspended. The
aggregate sentence is seven months at the Lorain Correctional Institution.” The trial court
memorialized the plea and sentence in an entry which repeated that “[t]he sentence on
Counts One and Six are suspended” and his sentence was “an aggregate total of 7
months, or until otherwise legally released.” The entry also stated, in relation to its
discussion of accepting the guilty plea that “if the Defendant is granted community control
at any point, the Defendant will have conditions to follow and if the Defendant violates
any of those conditions, there could be given a longer period under Court control and/or
greater restrictions, or a prison term of 36 months for the felonies of the Third Degree,
and 18 months for the Felony Four.” It did not state that a term of community control was
imposed as part of the sentence.
{¶4} The State appeals and raises the following assignment of error:
{¶5} “The trial court erred by suspending the prison sentences on the illegal
conveyance and third-degree felony aggravated possession counts.”
{¶6} The State argues that the lower court did not have authority to suspend the
Case No. 2023-P-0053 sentences for Illegal Conveyance and the third-degree felony Aggravated Possession
count (Count Six) as there is no statutory provision allowing it to do so.
{¶7} Prior to addressing whether the trial court’s sentence was contrary to law,
we first consider Burrell’s argument that this issue is moot. Burrell argues that this matter
is moot because he was set to complete his prison sentence on November 14, 2023. He
contends that when a sentence is complete, errors relating to the issuance of that
sentence render an appeal moot.
{¶8} Courts have held that “when the prison sentence has already been served
and the underlying conviction is not at issue, an assertion that the trial court erred in
determining the length of that sentence is a moot issue because no relief can be granted.”
[CITATION] (defendant’s challenge to his consecutive sentences was moot since he had already
served the sentence and “there is no relief this court can afford appellant”) (citation
omitted). The foregoing authority, however, is cited in relation to appeals by criminal
defendants requesting a reduction of their sentences rather than in a sentencing appeal
by the State. Burrell recognizes the foregoing but argues: “[J]ustice is blind. This case
is either moot or it[’]s not because the defendant has served his sentence. What is good
for the goose is good for the gander.” We disagree with this argument.
{¶9} In the case of a defendant seeking to reduce his sentence, the completion
of this sentence renders it impossible for the appellate court to provide such a remedy.
In contrast, in the case of an appeal filed by the State, completion of the sentence issued
by the trial court does not prevent the defendant from serving a potentially longer
Case No. 2023-P-0053 sentence if one is ordered on appeal. This issue was addressed by the Tenth District in
[CITATION]. In Marcum, the State
appealed the trial court’s sentence, arguing that it was contrary to law. The appellate
court recognized the different considerations in appeals initiated by the State in contrast
to a defendant. While a defendant’s appeal of a sentence already served is moot due to
the lack of an effective remedy, “the same reasoning does not apply when the state is the
party appealing a sentence, as is the case here, because the state’s challenge to the
leniency of a sentence can result in an effective remedy.” Id. at ¶ 7.
{¶10} It has further been observed that a defendant has “‘no legitimate
expectation of finality in a sentence that remains subject to direct review’” and which has
been appealed by the State. (Citations omitted.) Id. at ¶ 8, citing [CITATION]. “[W]hen there is no legitimate
expectation of finality in a sentence that remains subject to direct review, the defendant
may be resentenced even after the defendant is released from prison.” Id.; [CITATION] (“[b]ecause
[SEGMENT 3]
[defendant’s] sentences * * * were subject to correction * * *, [defendant] had no
expectation of finality in those portions of her original sentence” and it was appropriate to
resentence her although she had completed her previously ordered prison term).
{¶11} Burrell cites [CITATION] as authority for the proposition that there is a jurisdictional concern. In
Holdcroft, the Supreme Court indicated that a trial court loses jurisdiction to sentence a
defendant in certain circumstances when he has already served his term of incarceration.
It indicated that where a “valid prison sanction has been served * * * the court has lost
Case No. 2023-P-0053 jurisdiction to modify the sentence.” (Emphasis sic.) [CITATION] at ¶ 14. We emphasize, however,
that the court held: “Neither this court’s jurisprudence nor Ohio’s criminal-sentencing
statutes allow a trial court to resentence a defendant for an offense when the defendant
has already completed the prison sanction for that offense.” (Emphasis added.) [CITATION] at ¶
19. In [CITATION], the Twelfth District
distinguished Holdcroft where the defendant had completed a prison term for a firearm
specification but not for the underlying offenses, holding that the trial court had jurisdiction
to resentence on those offenses. [CITATION] at ¶ 18-20. Here, while Burrell completed his
sentence for count three, the State is not seeking resentencing for that offense. Rather,
it requests that an improperly imposed suspended sentence for separate offenses be
corrected.
{¶12} Further, the Holdcroft court noted that “a defendant’s legitimate expectation
of finality plays [a role] in constraining the court’s authority to review a sentence.” [CITATION] at ¶
18. See also [CITATION], ¶
23 (“had the victims pursued restitution in a direct appeal, the trial court’s judgment would
not have become final, avoiding the timing and jurisdictional issues created by the
absence of a timely appeal and [the defendant’s] completion of his sentence”). As noted
above, the timely direct appeal initiated by the State avoided concerns about the court
lacking authority to correct its sentence since Burrell did not have a legitimate expectation
of finality. See [CITATION], ¶ 17 (10th Dist.),
citing Holdcroft at ¶ 18 (“only after direct appeal is concluded or the time to appeal has
expired does it become true that ‘[a] trial court does not have the authority to resentence
a defendant * * * after the defendant has already served the prison term for that offense’”).
Case No. 2023-P-0053 As noted above, the Supreme Court in Christian found that the trial court had authority to
resentence a defendant although she had been confined for the length of the original
prison term since the sentence was challenged in a direct appeal. [CITATION] at ¶ 28. Since the
present appeal is not moot and the sentence is subject to review and correction by the
trial court, we will proceed to consideration of whether the trial court’s sentence was
contrary to law.
{¶13} R.C. 2953.08(B)(2) permits the prosecutor to appeal a felony sentence
when the sentence is contrary to law. “The appellate court may increase, reduce, or
otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for resentencing * * * if it clearly
and convincingly finds” that “the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b).
{¶14} The State concedes that it did not object to the sentence in the trial court
and that this matter should be reviewed for plain error. Pursuant to Crim.R. 52(B) “[p]lain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” “In order to prevail under a plain error standard, an
appellant must demonstrate that there was an obvious error in the proceedings and, but
for the error, the outcome would have been otherwise.” [CITATION]. “It is well settled that a sentence that
is contrary to law is plain error and an appellate court may review it for plain error.” [CITATION].
{¶15} The State contends that the lower court acted outside of its statutory
authority when it gave him suspended sentences on two felony counts, Illegal
Conveyance and Aggravated Possession (Count Six), as such a sentence is
Case No. 2023-P-0053 impermissible.
{¶16} “[I]n Ohio, judges have no inherent power to create sentences, and the only
sentence that a trial judge may impose is that provided for by statute.” [CITATION] (a court may “impose sentences only as provided by statute”).
{¶17} Prior to the enactment of SB-2 in 1995, “it was a regular practice in felony
sentencing to impose a prison sentence and then suspend the sentence and grant
probation with specific terms and conditions.” (Citation omitted.) [CITATION]. However, “[c]urrent felony
sentencing statutes * * * require trial courts to impose either a prison term or community
control sanctions on each count.” (Citation omitted.) Id at ¶ 23. “The [post-SB 2 felony-
sentencing] statutes no longer discuss ‘suspension’ of sentence; rather, the alternative to
a sentence of imprisonment is a sentence of community control sanctions.” Id. citing
Baldwin's Ohio Practice, Criminal Law, Section 119:2. Appellate courts have consistently
held that, in issuing a felony sentence, a court may not order a defendant to serve a
suspended sentence. [CITATION] (“a sentencing court can no longer suspend a prison term”); [CITATION] (“current felony sentencing
statutes do not allow a sentencing court to suspend a prison term” and the court’s
issuance of a suspended sentence was contrary to law and constituted plain error); [CITATION] (“there is no provision in the
sentencing statute which permits a court to suspend a prison term”) (citation omitted).
Case No. 2023-P-0053 {¶18} We are aware of no authority providing for the imposition of suspended
sentences for these offenses and Burrell does not provide contrary arguments on the
merits of this issue, arguing only in his brief that the matter is moot. “[C]ourts of common
pleas do not have inherent power to suspend execution of a sentence in a criminal case
and may order such suspension only as authorized by statute.” [CITATION]. The trial court failed to
order either the imposition of a prison term or a term of community control as required
under the sentencing statutes on the relevant offenses. [CITATION]. We find that
the trial court erred in ordering suspended sentences for Illegal Conveyance and
Aggravated Possession of Drugs (Count Six), vacate those sentences, and remand this
matter for resentencing on those offenses. See [CITATION].
{¶19} The sole assignment of error is with merit.
{¶20} For the foregoing reasons, Burrell’s sentences for Illegal Conveyance of
Prohibited Items onto the Grounds of a Detention Facility and Aggravated Possession of
Drugs (Count Six) are reversed and this matter is remanded for further proceedings
consistent with this opinion. Cost to be taxed against appellee.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
Case No. 2023-P-0053 ```plaintext
```
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112574
v. :
TIMOTHY M. LEWIS, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 11, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641305-A
Appearances:
Flowers & Grube and Louis E. Grube, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christine M. Vacha, Assistant Prosecuting
Attorney, for appellee.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Timothy M. Lewis, Sr. (“Lewis”) appeals the
imposition of consecutive sentences arising from guilty pleas and convictions. We
affirm the trial court’s judgment. I. Background
On June 27, 2019, Lewis was indicted for the following:
Count 1, rape, felony of the first degree, in violation of [CITATION]
(1)(B), with a sexually violent predator specification attached.
Count 2, gross sexual imposition, a felony of the third degree, in
violation of [CITATION] with a sexually violent predator
specification attached.
Count 3, rape, a felony of the first degree, in violation of [CITATION] with a sexually violent predator specification
attached.
Count 4, gross sexual imposition, a felony of the third degree, in
violation of [CITATION] with a sexually violent predator
specification attached.
[SEGMENT 4]
The charges arose from allegations of sexual conduct involving three
minor relatives. On July 17, 2019, 26-year-old Lewis was granted a bond reduction
and placed on a GPS monitor. On January 31, 2022, the parties set a jury trial date
for May 9, 2022. In February 2022, Lewis was in court for GPS violations, several
failures to report, passing through the exclusion zones where the alleged victims
resided, making unauthorized stops on the way to work, and testing positive for
marijuana and alcohol. His bond conditions were reinstated, and GPS reinstalled.
The trial court was advised of Lewis’s struggle to catch the bus to his
temporary job in Solon and maintain cell phone service due to budget constraints.
Lewis explained that he was working on the marijuana problem but used it to deal
with emotional issues. The probation officer advised Lewis to speak with a
counselor regarding his dependency. Lewis’s stops at the store on the way to work
were to use his cash card to obtain bus fare. Lewis also advised that the occasional vehicular passes through
exclusion zones occurred unintentionally when he was able to get rides to work.
Lewis also explained he had only been informed of one exclusion zone and that one
of the zone violations listed were for an area where the alleged victim no longer
resided. Lewis accepted the trial court’s offer to test negative for marijuana during
a 45-day day window rather than wait in jail.
On March 21, 2022, Lewis appeared in court to address additional
GPS violations. The 34 minutes spent at the basketball court located underneath his
grandmother’s residence with whom he resided was for a family balloon release for
a brother who had committed suicide several years earlier. The two nine-minute
periods at the basketball court on two evenings were to take the dog out. Two eight-
minute stops on two days at 3:06 p.m. occurred when Lewis received a ride home by
a coworker who stopped at their residence on the way. He also went to the basketball
court two other occasions for about nine minutes at approximately 7:40 p.m. Lewis
explained that the first basketball court visit was for a family balloon release on the
third anniversary of Lewis’s brother’s suicide and the other two times to take the dog
out. The two private residence stops at 3:06 p.m. occurred on days when the
coworker who gave Lewis a ride from work stopped at their residence on the way.
The trial court noted that Lewis had been on house arrest for two and one-half years
and determined that Lewis’s movement would no longer be restricted except for the
exclusion zones. On May 9, 2022, the parties appeared for trial. Defense counsel
explained that he was waiting for a medical certification crucial to Lewis’s defense
and requested a continuance. The state advised that one of the alleged victims and
the victim’s parent were not being cooperative so Counts 1 and 4 would probably be
dismissed. Trial was rescheduled for August 1, 2022.
On June 6, 2022, Lewis appeared in court to answer the state’s claim
that Lewis rode through part of an exclusion zone that the state said “was not an
intentional stop.” Since Lewis was informed of the exclusion area on May 20, 2022,
he was arrested. The state could not tell the trial court where Lewis was at within
the zone or his proximity to the excluded source, and he was at home by the time of
his arrest. Lewis had not tested positive for marijuana since early 2022. The trial
court decided to remove the GPS monitor that Lewis had been wearing for almost
three years, though he remained under supervised release.
On August 1, 2022, the defense requested another continuance as co-
counsel was in trial. Trial was rescheduled for the tenth time to October 17, 2022.
On October 17, 2022, Lewis failed to appear by 10:09 a.m. for the 10:00 a.m. trial
and a capias was issued. On November 1, 2022, Lewis appeared and advised the
trial court that when his shift in Solon ended at 6:45 a.m., his wallet was missing
from his locker and his cell phone screen was broken. He walked home from Solon
to Cleveland and emailed his attorney two days later. Counsel reminded the trial
court that Lewis had always been communicative and attendant and appeared of his
own volition. Lewis was taken into custody. On February 1, 2023, Lewis entered a guilty plea to Counts 2 and 3,
as amended, for gross sexual imposition, a third-degree felony under [CITATION].
Counts 1 and 4 were nolled. Lewis was referred for a presentence
investigation (“PSI”).
At the March 1, 2023 sentencing, Lewis cited mitigating factors for
the trial court’s consideration. Lewis was one and one-half years old in 1995 when
he and his eight siblings were placed in separate foster homes due to their mother’s
struggles with drug issues. Lewis returned to his mother’s home in 2002 and at the
age of 13 helped to run the household to prevent him and his siblings from being
removed again. He was diagnosed with post-traumatic stress disorder and anxiety
and used marijuana and alcohol as coping mechanisms. Lewis had no criminal
record. His brother, who was still in the foster care system at the time of trial, was
also charged with committing similar offenses involving the victims. His case was
pending before a different judge.
One of Lewis’s brothers committed suicide a few years prior to trial,
an uncle died of a heart attack, and his mother and grandmother suffered strokes.
Lewis paid rent to help his grandmother and worked consistently prior to entering
a plea. Each incident occurred a single time. The affected family members desired
to put the acts behind them that occurred several years before the 2019 indictments.
Lewis decided to enter a plea because the matter had been going on for three years
and he was tired of fighting it. The defense requested a community-control sanction
with substance abuse treatment and counseling. On March 2, 2023, Lewis was sentenced to five years on Count 2 and
three years on Count 3 to be served consecutively for a total term of eight years and
declared to be a Tier II sex offender. Lewis appeals.
II. Assignment of Error
Lewis’s single assignment of error is that the trial court committed
plain error by imposing consecutive sentences because the record clearly and
convincingly does not support any of the necessary factual findings.
III. Discussion
“It is well-settled that a sentence that is contrary to law is plain error
and an appellate court may review it for plain error.” [CITATION], ¶ 17, citing [CITATION], ¶ 9, citing [CITATION], ¶ 6. A trial court’s failure to make the
required R.C. 2929.14(C)(4) consecutive-sentence findings is contrary to law which
constitutes plain error. Id., citing [CITATION], ¶ 15.
An appellate court reviews felony sentences under the standard set
forth in R.C. 2953.08(G)(2). [CITATION], ¶ 16. Consecutive sentences may be challenged by arguing (1) the
sentence is contrary to law due to the trial court’s failure to make the requisite R.C.
2929.14(C)(4) requirements pursuant to R.C. 2953.08(G)(2)(b); or (2) the record
“‘clearly and convincingly’” does not support the court’s R.C. 2929.14(C)(4) findings pursuant to R.C. 2953.08(G)(2)(a). [CITATION], citing [CITATION].
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
[CITATION], quoting [CITATION].
A trial court is not required to recite the statutory language verbatim,
nor is it required to state its reasons to support its findings “‘“provided that the
necessary findings can be found in the record and are incorporated in the sentencing
entry.””’ [CITATION], quoting [CITATION], quoting [CITATION].
The trial court stated:
The problem when we’re dealing with victims who are children is that
the impact on those victims is great. I mean, this is something that
they’re going to live with and something that’s going to keep replaying
itself in their head.
So while I knew that I was going to send you to prison, the question is
for how long. I understand that you don’t have a prior record and I
understand that you’re all family, and I know this is tearing the family
apart, because, on one hand, again, they want you to pay, and another
hand, you’re the brother, you’re the father—not the father, the son, the
grandson, et cetera. But I just feel that this is serious, and I don’t know—I don’t think it
deserves a slap on the wrist. I just don’t. I think that this is something
that—I understand your background as well when you’re taken from
your own parent at a young age and you’re put into the system. I
understand that there is a lot of trauma in your life as well. But now
there is trauma for these two kids, especially the young girl as well as
the guy. Even though he is older now and he was older at the time, it
still is something that he won’t forget.
[SEGMENT 5]
[CITATION]
The trial court continued:
With that being said, as to amended Count 2, the Defendant is
sentenced to 5 years in prison.
As to the amended Count 3, I am going to sentence you to 3 years in
prison. That time will run consecutive for a total time of 8 years in
prison.
The Court finds that consecutive sentences are necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the dangers it would pose to the public.
Furthermore, the Court finds that at least two of the multiple offenses
were committed as part of one or more courses of conduct and that the
harm caused by the abuse on these children is great, and no single
prison term for any of the offenses committed as part of the conduct
adequately reflects the seriousness of the offender’s conduct.
The Court has taken into consideration the fact that he has no prior
record. That is why the sentence is as it is and not more.
(Emphasis added.) [CITATION]
Lewis expressed remorse to the trial court. The trial court heard at
sentencing, and the record contains the same in the PSI, the details of the sexual
misconduct and the impact that Lewis’s behavior had on the victims. The fact that familial relationships were involved has been painful and traumatic for the victims
and the family members.
After conducting a thorough review of the record, this court does not
find that the record clearly and convincingly fails to support the trial court’s findings.
We therefore find that Lewis has not demonstrated plain error. The assignment of
error is overruled.
IV. Conclusion
The trial court’s judgment is affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, A.J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION);
MARY J. BOYLE, J., CONCURS WITH THE SEPARATE CONCURRING IN
JUDGMENT ONLY OPINION KATHLEEN ANN KEOUGH, A.J., CONCURRING IN JUDGMENT ONLY:
I concur with the decision affirming Lewis’s sentence that included
consecutive sentences. But I write separately to express my opinion that a defendant
does not need to object to the trial court’s imposition of consecutive sentences to
preserve the issue on appeal.
In [CITATION], the lead opinion addressed and sustained Beasley’s challenge to the
imposition of consecutive sentences even though he did not object to the trial court
imposing consecutive sentences. Id. at ¶ 252-262. The dissenting opinion explicitly
pointed out that because the defendant did not object, he had waived all but plain
error. Id. at ¶ 268-280 (DeWine, J., dissenting). Because the [CITATION] majority did
not find that this impairment hindered the court’s review, I believe that the court
implicitly held that a defendant does not need to object to a trial court’s imposition
of consecutive sentences.
Additionally, the Twelfth District in [CITATION], recently addressed this issue when
the state, relying on [CITATION], suggested that the court’s standard of review is limited to plain
error because the defendant did not object after consecutive sentences were
imposed.
The relevant paragraph in [CITATION] cites another capital case, [CITATION],
Hunter, in turn, cites a third capital case, [CITATION] 404, 2008-Ohio-2, 880 N.E.2d 31, [¶ 377]. In [CITATION], the appellant
argued that a trial court erred by imposing consecutive sentences for
noncapital counts in a capital case, and the supreme court determined
that plain error review applied because the appellant failed to raise this
argument at the sentencing hearing. [CITATION] at ¶ 166. In [CITATION], the
supreme court applied plain error review to the appellant’s argument
that the imposition of consecutive sentences in a capital case was
unconstitutional. [CITATION] at ¶ 151-155. In [CITATION], the supreme court did
not even mention plain error in the portion cited in [CITATION], but instead
stated that when the appellant objected to consecutive sentences but
failed to raise the specific constitutional arguments he raised on appeal,
those constitutional arguments were forfeited. [CITATION] at ¶ 377.
While all three of these cases discuss either plain error review or
forfeiture in the context of a challenge to consecutive sentences, none
of these cases involve the type of argument before us today — that is,
none involve a challenge to R.C. 2929.14(C)(4) consecutive sentence
findings under R.C. 2953.08(G)(2). It is not clear that the Ohio
Supreme Court in [CITATION], or [CITATION] intended to suggest that
an offender who fails to object to consecutive sentences after they are
imposed is limited to plain error review when the offender brings an
appeal challenging R.C. 2929.14(C)(4) consecutive sentence findings
under R.C. 2953.08(G)(2).
Id. at ¶ 26-28.
I agree with the Morris analysis, and based on Beasley, it is my
opinion that a defendant does not need to object to preserve appellate review
beyond that of plain error when challenging the consecutive-sentence findings
under R.C. 2929.14(C)(4). Because the majority opinion implies otherwise, I
respectfully concur in judgment only.
[Cite as [CITATION],
2023-Ohio-4788.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 112472 and 112871
v. :
KENNETH NORRIS, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: December 28, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-22-674411-A and CR-22-673597-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon K. McNally and Jillian Piteo,
Assistant Prosecuting Attorneys, for appellee.
Robert A. Dixon, for appellant.
ANITA LASTER MAYS, A.J.:
I. Introduction
Defendant-appellant Kenneth Norris, Jr. (“Norris”) appeals the
imposition of consecutive sentences for his criminal convictions in this consolidated
====== appeal. We vacate the trial court’s judgment and remand it for further proceedings
pursuant to this opinion.
On January 11, 2023, Norris pleaded guilty to the following offenses:
Cuyahoga C.P. No. CR-22-673597: gross sexual imposition, a third-
degree felony, R.C. 2907.05(A)(4), as amended in the indictment.
Cuyahoga C.P. No. CR-22-674411: having weapons while under
disability, a third-degree felony, R.C. 2923.13(A)(2), as charged in
Count 1 of the indictment. Aggravated menacing, a first-degree
misdemeanor, R.C. 2903.21(A), as charged in Count 2 of the
indictment.
Norris was sentenced to four years in CR-22-673597. In CR-22-
674411, Norris was sentenced to 12 months on Count 1 and 180 days on Count 2, to
run concurrently to each other. The sentences in CR-22-673597 and CR-22-674411
were to be served consecutively to each other.
Norris contends that the trial court erred in imposing consecutive
sentences without finding on the record that consecutive sentences were not
disproportionate to the danger that the appellant posed to the public.
“It is well-settled that a sentence that is contrary to law is plain error,
and an appellate court may review it for plain error.” [CITATION], ¶ 17, citing [CITATION], ¶ 9, citing [CITATION], ¶ 6. Thus, the trial court’s failure to make
the required R.C. 2929.14(C)(4) consecutive-sentence findings is contrary to law,
which constitutes plain error. Id., citing [CITATION], ¶ 15. “R.C. 2953.08(G)(2) provides that when reviewing felony sentences,
a reviewing court may overturn the imposition of consecutive sentences where the
[SEGMENT 6]
court ‘clearly and convincingly’ finds that (1) ‘the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4),’ or (2) ‘the sentence is
otherwise contrary to law.’” [CITATION]
To impose consecutive sentences, the trial court must make the
specific findings set forth in the statute: “consecutive sentence is necessary to protect
the public from future crime or to punish the offender”; “consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public.” R.C. 2929.14(C)(4). At a minimum, one of the
following is required:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
[CITATION]
====== End of Part of a Court Ruling ====== An appellant “can challenge consecutive sentences on appeal in two
ways. First, the defendant can argue that consecutive sentences are contrary to law
because the court failed to make the necessary findings required by R.C.
2929.14(C)(4).” [CITATION], citing R.C. 2953.08(G)(2)(b); [CITATION] “Second, the defendant can argue that the record does not
support the court’s findings made pursuant to R.C. 2929.14(C)(4).” Id., citing R.C.
2953.08(G)(2)(a); [CITATION] Norris argues the former.
“R.C. 2953.08(G)(2) provides that when reviewing felony sentences,
a reviewing court may overturn the imposition of consecutive sentences where the
court ‘clearly and convincingly’ finds that (1) ‘the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4),’ or (2) ‘the sentence is
otherwise contrary to law.”’ [CITATION], ¶ 18.
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
[CITATION], quoting [CITATION]
A trial court is not required to recite verbatim the statutory language,
nor is it required to state its reasons to support its findings “‘“provided that the necessary findings can be found in the record and are incorporated in the sentencing
entry.””’ [CITATION], ¶ 17, quoting
[CITATION], ¶ 176, quoting
[CITATION], ¶ 37.
The trial court recited Norris’s prior issues.
Thank you. In case number 654165, that’s the probation case. You
were on probation for attempted felonious assault, felony of the third
degree. That was count 1. Domestic violence, a felony of the fourth
degree, count 5. Endangering children a misdemeanor of the first
degree, counts 8 and 9.
The Court placed you on probation and it appears you violated on more
than one time. This would have been not the first time you violated,
but the first to my knowledge because this happened in April, so I
wasn’t aware of that.
You had a positive drug screen on May 5, 2022. We held a hearing. You
were on GPS monitoring. You went through the victim’s zone on
6/13/2022. Apparently, the victim no longer lived at that residence. I
released you.
As of 8/31 you were remanded, so you will receive credit for time
served. You have been in jail since 8/31.
You’re found to be in violation in case number 654165. Probation is
terminated on that case.
I have had an opportunity to look at and review the pre-sentence
investigation report for that case, which was less than a year old. It
reveals you have quite a lengthy criminal history including an
adjudication when you were delinquent in 2010 for a gross sexual
imposition case, several domestic violence cases, some of which have
been dismissed.
There’s another sex offense back in 2015 though. You were found not
guilty on that verdict of not guilty to an aggravated robbery in 2018 with
firearm specifications. Then you picked up the cases with me and then you picked up these
two new cases. I do not find you’re a good candidate for probation. You
were on probation for all of the reasons that [defense counsel] was
asking me to put you on probation for today. That did not -- that path
did not seem to work very well. You did pick up two new cases.
Tr. 32-34.
The trial court also announced:
In case number 673597, count 1, four years. For the reasons that I have
stated, that you were on probation at the time the offenses were
committed, your record, I do not feel a single sentence will protect the
public, and am going to impose a consecutive sentence, and I take into
consideration the probation case.
I’m not imposing a sentence on that, but I am imposing a consecutive
sentence on -- I do find also your criminal history shows a consecutive
term is necessary to protect the public.
Tr. 35.
The record contains Norris’s criminal history, probation violations,
and the nature of the crimes. However, the trial court failed to make the requisite
disproportionate findings under R.C. 2929.14(C)(4) according to [CITATION]. For that reason, this court vacates
Norris’s consecutive sentences and remands the matter for the trial court to address
whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so,
to make the required findings on the record and incorporate those findings in the
sentencing journal entry pursuant to [CITATION].
Norris has demonstrated plain error. The assignment of error is
sustained. II. Conclusion
The trial court’s judgment is vacated and remanded for proceedings
pursuant to this opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that appellant recover from appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY
(WITH SEPARATE OPINION);
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY KATHLEEN ANN KEOUGH, J., CONCURRING IN JUDGMENT ONLY:
I concur with the decision to vacate Norris’s consecutive sentences
and remand the matter to the trial court. But I write separately to express my
opinion that a defendant does not need to object to the trial court’s imposition of
consecutive sentences to preserve the issue on appeal.
In [CITATION], the lead opinion addressed and sustained Beasley’s challenge to the
imposition of consecutive sentences even though he did not object to the trial court
imposing consecutive sentences. Id. at ¶ 252-262. The dissenting opinion explicitly
pointed out that because the defendant did not object, he had waived all but plain
error. Id. at ¶ 268-280 (DeWine, J., dissenting). Because the Beasley majority did
not find that this impairment hindered the court’s review, I believe that the court
implicitly held that a defendant does not need to object to a trial court’s imposition
of consecutive sentences.
Additionally, the Twelfth District in [CITATION], ¶ 26-28, recently addressed this issue when
the state, relying on [CITATION], suggested that the court’s standard of review is limited to plain
error because the defendant did not object after consecutive sentences were
imposed.
The relevant paragraph in Whitaker cites another capital case, [CITATION],
Hunter, in turn, cites a third capital case, [CITATION] 404, 2008-Ohio-2, 880 N.E.2d 31, [¶ 377]. In [CITATION], the appellant
argued that a trial court erred by imposing consecutive sentences for
noncapital counts in a capital case, and the supreme court determined
that plain error review applied because the appellant failed to raise this
argument at the sentencing hearing. [CITATION] at ¶ 166. In [CITATION], the
supreme court applied plain error review to the appellant’s argument
that the imposition of consecutive sentences in a capital case was
unconstitutional. [CITATION] at ¶ 151-155. In [CITATION], the supreme court did
not even mention plain error in the portion cited in [CITATION], but instead
stated that when the appellant objected to consecutive sentences but
failed to raise the specific constitutional arguments he raised on appeal,
those constitutional arguments were forfeited. [CITATION] at ¶ 377.
[SEGMENT 7]
While all three of these cases discuss either plain error review or
forfeiture in the context of a challenge to consecutive sentences, none
of these cases involve the type of argument before us today — that is,
none involve a challenge to R.C. 2929.14(C)(4) consecutive sentence
findings under R.C. 2953.08(G)(2). It is not clear that the Ohio
Supreme Court in [CITATION], or [CITATION] intended to suggest that
an offender who fails to object to consecutive sentences after they are
imposed is limited to plain error review when the offender brings an
appeal challenging R.C. 2929.14(C)(4) consecutive sentence findings
under R.C. 2953.08(G)(2).
Id. at ¶ 26-28.
I agree with the Morris analysis, and based on [CITATION], it is my
opinion that a defendant does not need to object to preserve appellate review beyond
that of plain error when challenging the consecutive-sentence findings under R.C.
2929.14(C)(4). Because the majority opinion finds otherwise, I respectfully concur
in judgment only.
====== End of Part ====== [CITATION]
[Cite as [CITATION].]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112268
v. :
JASON PACHECO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: November 22, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-668598-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eben O. McNair, Daniel Cleary, and
Samantha Sohl, Assistant Prosecuting Attorneys, for
appellee.
The Law Office of Schlachet and Levy and Eric M. Levy,
for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Jason Pacheco (“Pacheco”) appeals his
convictions stemming from a bar fight and car crash on December 24, 2021, that killed one victim and seriously injured another. For the following reasons, we affirm
in part, reverse in part, and remand for further proceedings consistent with this
opinion.
Procedural and Factual History
On December 24, 2021, Pacheco and his friends were involved in a
disturbance at a bar. Pacheco and his friends left the bar and drove south on W. 25th
Street, where he ran a red light. Pacheco was speeding at approximately 60 m.p.h.
when he crashed into Ms. Hana Mohamed’s minivan. Ms. Mohammed was partially
ejected from the vehicle. Ms. Mohammed and her mother, Naderah Iwais, were
transported to the hospital with serious injuries. Ms. Iwais succumbed to her
injuries. Pacheco and his passengers fled the scene of the accident. The next day,
Pacheco contacted the police.
Pacheco was indicted on March 15, 2022, in C.P. No. CR-22-668598
in a 16-count indictment stemming from the incident at the bar and the collision.
On October 31, 2022, Pacheco pleaded guilty to amended Count 1, felonious assault,
a felony of the second degree, in violation of R.C. 2903.11(A)(1); Count 2, aggravated
vehicular homicide, a felony of the third degree, in violation of R.C.
2903.06(A)(2)(a), which merged with Count 1 for sentencing; Count 4, aggravated
vehicular assault, a felony of the third degree, in violation of R.C. 2903.08(A)(2)(b);
Count 6, failure to stop after accident, a felony of the third degree, in violation of
R.C. 4549.02(A)(1); Count 7, failure to stop after accident, a felony of the fifth
degree, in violation of R.C. 4549.02(A)(1); Count 9, riot, a misdemeanor of the first degree, in violation of R.C. 2917.03(A)(1). The trial court ordered a presentence
investigation (“PSI”), and sentencing was set for November 30, 2022.
Pacheco was sentenced to six to nine years on Count 1, felonious
assault. Count 1 was subject to an indefinite six to nine years under the Reagan
Tokes Law and was merged with Count 2 for sentencing purposes. The court
imposed a prison term of three years on Count 4. The court ordered consecutive
service for Counts 1 and 4 and stated the following findings on the record:
THE COURT: The record should reflect that I imposed a consecutive
sentence on Counts 1 and 4. The court finds that consecutive sentences
are necessary to protect the public from future crime and to punish the
offender, and consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public. The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the
public from future crimes by the offender, and there were two separate
victims in this case.
Regarding the remaining counts, the trial court imposed a prison
term of 36 months on Count 6, 12 months on Count 7, and six months on Count 9,
all concurrent to Count 1. The aggregate term was six to nine years. Finally, the
court imposed a ten-year license suspension upon Pacheco’s release from prison.
Pacheco now appeals and raises the following assignments of error for review.
First Assignment of Error
The trial court erred when it imposed a sentence suspending the
appellant’s driver’s license for ten-years, contrary to law. Second Assignment of Error
The trial court erred when it imposed a sentence assessing points to
appellant’s driving record not announced at the oral sentencing hearing
and contrary to law.
Third Assignment of Error
The record does not support the consecutive sentence imposed upon
appellant, and the findings required to impose consecutive sentences
were incomplete and contrary to law.
Fourth Assignment of Error
Appellant’s indefinite sentence imposed under the Reagan Tokes
sentencing scheme violates appellant’s rights under the United States
Constitution applied to the state of Ohio through the Fourteenth
Amendment and the Ohio constitution as it denies appellant due
process of law; violates the right to equal protection; violates the Sixth
Amendment right to a jury trial; violates the separation of powers
doctrine; does not provide fair warning of the dictates of the statute to
ordinary citizens; and the statute conferred too much authority to the
Ohio Department of Rehabilitation and Correction (ODRC).
Fifth Assignment of Error
The trial court erred when it reflected the wrong code section for
amended Count 1, felonious assault, in its plea and sentencing journal
entries.
Law and Analysis
The standard of review for felony sentencing requires an appellate
court to review the record, including the findings underlying the sentence ordered
by the sentencing court. [CITATION] If the reviewing court clearly and convincingly finds that (1) the record
does not support the sentencing court’s findings or (2) the sentence is otherwise
contrary to law, then the appellate court may increase, reduce, or otherwise modify a sentence; or the appellate court may vacate the sentence and remand the matter
to the court for resentencing. [CITATION] For ease of analysis, Pacheco’s assignments of
error will be addressed out of order and together, where appropriate.
License Suspension and Points
Pacheco’s first and second assignments of error will be addressed
together for ease of analysis.
Pacheco argues in his first and second assignments of error the trial
court erred when it imposed a ten-year driver’s license suspension on Count 4,
aggravated vehicular assault, under R.C. 2903.08(A)(2)(b); and the trial court failed
to inform Pacheco that six points were assessed on his license.
As a preliminary matter, R.C. 2903.08(C)(2) and (3) govern
punishment for vehicular assault under R.C. 2903.08(A)(2) and (3).
R.C. 2903.08(C)(2) provides in relevant part:
In addition to any other sanctions imposed, the court shall impose
upon the offender a class four suspension of the offender’s driver’s
license, commercial driver’s license, temporary instruction permit,
probationary license, or nonresident operating privilege from the range
specified in division (A)(4) of section 4510.02 of the Revised Code or,
if the offender previously has been convicted of or pleaded guilty to a
violation of this section, any traffic-related homicide, manslaughter, or
assault offense, or any traffic-related murder, felonious assault, or
attempted murder offense, a class three suspension of the offender’s
driver’s license, commercial driver’s license, temporary instruction
permit, probationary license, or nonresident operating privilege from
the range specified in division (A)(3) of that section.
[SEGMENT 8]
The assessment of points is also prescribed by statute. R.C. 4510.036
requires as follows: (B) Every court of record or mayor’s court before which a person is
charged with a violation for which points are chargeable by this section
shall assess and transcribe to the abstract of conviction that is
furnished by the bureau to the court the number of points chargeable
by this section in the correct space assigned on the reporting form.
***
(C) A court shall assess the following points for an offense based on the
following formula:
(1) Aggravated vehicular homicide, vehicular homicide, vehicular
manslaughter, aggravated vehicular assault, or vehicular assault when
the offense involves the operation of a vehicle, streetcar, or trackless
trolley on a highway or street ______6 points.
In the instant matter, Pacheco argues that the trial court imposed a
ten-year license suspension, which is unauthorized by law for vehicular assault
conviction and failed to inform him that a six-point license assessment was
statutorily required. There is no dispute that if the crimes are statutory, so are the
penalties, and the only sentence that a trial court may impose is that provided for by
statute. [CITATION], ¶ 19.
As it relates to the license suspension, Pacheco claims that absent a
prior conviction, he is only subject to a class four suspension. A class four
suspension requires the court to impose a definite license suspension of one to five
years. A trial court may enhance a class four license suspension to a class three
suspension when the charge includes a prior conviction. R.C. 2903.08(C)(2).
Pacheco pleaded guilty to two counts of failure to stop after an
accident in violation of R.C. 4549.02. R.C. 2903.08 requires the trial court to enhance a violation of R.C. 2903.08(A)(2) from an F4 to an F3, based on the same
course of conduct as the violations for a failure to stop after an accident; however, it
does not permit an enhancement of the class license suspension. R.C. 2903.08
requires a previous conviction and may not rely on the same course of conduct that
resulted in the violation of R.C. 2903.08(A)(2) before the trial court is required to
enhance a class four license suspension to a class three license suspension.
In the instant case, Pacheco had no applicable previous conviction.
The trial court was required to impose a definite term of suspension of between one
and five years. Accordingly, the ten-year driver’s license suspension is contrary to
law.
Pacheco alleges that the trial court assessed six points on his license
under R.C. 4510.036 but failed to impose points during the sentencing hearing when
Pacheco was physically present. R.C. 4510.036. Pacheco relies on Crim.R. 43, which
provides in part:
Except as provided in Rule 10 of these rules and division (A)(2) of this
rule, the defendant must be physically present at every stage of the
criminal proceeding and trial, including the impaneling of the jury, the
return of the verdict, and the imposition of sentence, except as
otherwise provided by these rules.
A sentence is contrary to law when the sentence announced by the
trial court at the hearing differs from that in the sentencing entry. [CITATION], ¶ 21. The trial court errs when its
judgment entry differs from the sentence it announced at the sentencing hearing in
the defendant’s presence. [CITATION] Ohio-3320, ¶ 18. The record reveals that the trial court did not inform Pacheco that
he would be assessed six points against his license during the plea or sentencing
hearings.
The sentence announced in open court violated Crim.R. 43 and was,
therefore, contrary to law. Pacheco’s first and second assignments of error are
sustained.
Consecutive Sentence
Pacheco argues in his third assignment of error that the record does
not support the consecutive sentence imposed and the findings required to impose
consecutive sentences were incomplete and contrary to law.
An appellate court reviews challenges to consecutive sentences de
novo. If a trial court failed to make the requisite findings, the appellate court must
find the order of consecutive sentences was contrary to law and either modify or
vacate the sentence and remand. [CITATION]. If the trial court made the required findings, the
appellate court may only reverse or modify the sentence, including the number of
consecutive sentences, if the court “clearly and convincingly finds that the record
does not support the trial court’s findings.” [CITATION].
When the trial court imposes consecutive sentences, it must make
findings under R.C. 2929.14(C)(4) that a consecutive sentence is 1) necessary to
protect the public from future crime or punish the offender; 2) proportionality both as to the seriousness of the offender’s conduct and danger posed to the community;
and, 3) the need to protect the public from harm so great or unusual that a single
term does not adequately reflect the seriousness of his repeated conduct. [CITATION].
Pacheco argues that the sentencing hearing transcript and journal
entry of the sentencing contained different findings. First, the appellate court must
review the record and determine if the trial court made findings under
R.C. 2929.14(C)(4).
Additionally, the court must find any one of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed under section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4)
In the instant case, the trial court made the following findings on the
record:
The record should reflect that I did impose a consecutive sentence on
Count 1 and Count 4. The court finds that consecutive sentences are
necessary to protect the public from future crime and to punish the offender, and consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public. The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender, and there were two separate
victims in this case.
(Tr. 34.)
The trial court is required to make the statutory findings on the record
and incorporate them in its journal entry; however, the trial court is not required to
recite a word-for-word recitation of the language of R.C. 2929.14(C)(4). [CITATION]. The relevant
inquiry is whether the reviewing court can discern that the trial court engaged in the
correct analysis and determine that the record contains evidence supporting the
court’s findings. Id.
Here, the trial court clearly found that R.C. 2929.14(C)(4)(c) was
applicable. The record reflects that the court reviewed the PSI and considered
Pacheco’s criminal history, including fleeing from police, driving under suspension,
failing to maintain physical control, and prior drug cases, and that the serious
injuries sustained by two victims and loss of life caused by Pacheco’s criminal
conduct necessitated consecutive sentences to protect the public. The sentencing
entry however, cites the wrong subsection of R.C. 2929.14(C)(4). It is well settled
that the court may correct clerical mistakes through a nunc pro tunc entry to reflect
what actually occurred in open court. See [CITATION]. Furthermore, the record demonstrates that the trial court considered
the number of sentences it imposed consecutively as well as the resulting aggregate
sentence when the trial court imposed consecutive sentences on Counts 1 and 4 and
concurrent sentences on the remaining counts, for an aggregate sentence of six to
nine years. The trial court is ordered to correct nunc pro tunc, the sentencing entry
to reflect the findings it made on the record. Accordingly, Pacheco’s third
assignment of error is overruled in part and sustained in part.
Reagan Tokes
In his fourth assignment of error, Pacheco alleges his appellant’s
indefinite sentence imposed under the Reagan Tokes sentencing scheme violates
his rights under the United States Constitution applied to the state of Ohio through
the Fourteenth Amendment and the Ohio Constitution since it denies appellant due
process of law; violates the right to equal protection; violates the Sixth Amendment
right to a jury trial; violates the separation-of-powers doctrine; does not provide fair
warning of the dictates of the statute to ordinary citizens; and the statute conferred
too much authority to the Ohio Department of Rehabilitation and Correction
(“ODRC”).
The Ohio Supreme Court recently addressed these issues in [CITATION], and found they lack merit. See [CITATION],
[SEGMENT 9]
8th Dist. Cuyahoga Nos. 112077 and 112078, 2023-Ohio-3360, at ¶ 15.
Pacheco’s fourth assignment of error is overruled. Plea and Sentencing Entries
In his fifth assignment of error, Pacheco argues that the trial court
erred when it reflected a plea to Count 1, felonious assault by means of a weapon or
deadly ordnance, in violation of R.C. 2903.11(A)(2), instead of felonious assault in
violation of R.C. 2903.11(A)(1), as amended, in its plea and sentencing journal
entries.
The state concedes that the plea and sentencing entries reflect the
incorrect section of the Revised Code, for which Pacheco pleaded guilty. A nunc pro
tunc entry should reflect what the court decided properly. [CITATION] A careful review of the
record reflects that the state amended Count 1 by removing the language “by means
of a weapon or dangerous ordnance.”
Accordingly, Pacheco pled guilty to felonious assault in violation of
R.C. 2903.11(A)(1). Pacheco’s fifth assignment of error is sustained. This matter is
remanded to enter a nunc pro tunc order to correct the plea and sentencing entries
consistent with this opinion.
Judgment is affirmed in part, reversed in part, and this matter is
remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution. It appears that the provided part of the court ruling does not contain any court ruling citations. Therefore, there are no citations to remove or replace. Here is the text, unchanged:
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
EMANUELLA D. GROVES, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR I'm sorry, it appears I did not receive the actual part of the court ruling. Could you please provide the part of the court ruling that needs to be processed?
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
STATE OF OHIO, : Case Nos. 23CA6, 23CA7
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
SHAWN PRICE, :
Defendant-Appellant. : RELEASED 4/26/2024
______________________________________________________________________
APPEARANCES:
Christopher Bazeley, Cincinnati, Ohio, for appellant.
James K. Stanley, Meigs County Prosecutor, Pomeroy, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Shawn Price appeals his conviction following a guilty plea to one second-
degree felony count of possession of drugs and one third-degree felony count of drug
trafficking. Price contends that the trial court failed to properly advise him of his rights
under the Reagan Tokes Act as required by R.C. 2929.19. He argues that the sentence
is contrary to law and must be remanded back to the trial court for resentencing. The state
concedes this error. We agree and find that the trial court failed to provide the required
notification under R.C. 2929.19(B)(2)(c) and therefore his sentence is contrary to law. We
sustain Price's sole assignment of error and remand for resentencing.
I. FACTS AND PROCEDURAL HISTORY
{¶2} The Meigs County grand jury indicted Price on four counts of possession of
drugs in violation of R.C. 2925.11, three which were second-degree felonies and one a Meigs App. Nos. 23CA6, 23CA7
fifth-degree felony, and four counts of drug trafficking in violation of R.C. 2925.03, three
which were second-degree felonies and one a fifth-degree felony. Later, in a separate
case that was subsequently consolidated, the grand jury indicted Price on six counts each
of possession of drugs and drug trafficking, violations of R.C. 2925.11 and R.C. 2925.03,
respectively. One of the drug possession charges was a first-degree felony, one was a
third-degree felony, and four were fifth-degree felonies. Three of the drug trafficking
charges were fifth-degree felonies, one was a fourth-degree felony, one was a third-
degree felony, and one was a first-degree felony.
{¶3} At a consolidated plea hearing, Price pleaded guilty to one count of drug
possession, a second-degree felony, and one count of drug trafficking, a third-degree
felony. At sentencing, the trial court sentenced Price to a five to seven-and-one-half-year
prison term for drug possession and a two-year prison term for drug trafficking, to be
served consecutively. Price appealed.
II. ASSIGNMENT OF ERROR
{¶4} Price presents the following assignment of error:
The trial court failed to properly advise Price of his rights under the
Regan [sic] Tokes Act as required by R.C. 2929.19.
III. LEGAL ANALYSIS
{¶5} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2):
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following: Meigs App. Nos. 23CA6, 23CA7
(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶6} We may vacate or modify a felony sentence if we clearly and convincingly
find that the record does not support the trial court's findings. [CITATION]. “ ‘This is an extremely deferential standard
of review.’ ” [CITATION]. Clear and convincing evidence is proof that is more than a “mere
preponderance of the evidence” but not of such certainty as “beyond a reasonable doubt,”
and produces in the mind a “firm belief or conviction” as to the facts sought to be
established. [CITATION].
{¶7} Here, Price did not object to the trial court’s instructions at sentencing and
has forfeited this issue, absent plain error. [CITATION]. For a reviewing court to find plain error (1) there must be an
error, i.e., “a deviation from a legal rule,” (2) the error must be plain, i.e., “an ‘obvious'
defect in the trial proceedings,” and (3) the error must have affected “substantial rights,”
i.e., it “must have affected the outcome of the trial.” [CITATION]. A sentence is contrary to law if a trial court sentences an
offender to an indefinite prison term under the Reagan Tokes Law and fails advise the
offender of all the notifications set forth in R.C. 2929.19(B)(2)(c) at the sentencing
hearing. [CITATION]. Meigs App. Nos. 23CA6, 23CA7
[CITATION], ¶ 29. “It is well settled that a sentence that is contrary to law is plain error and an appellate court may review it for plain error.” [CITATION], ¶ 14, citing [CITATION], ¶ 18.
{¶8} R.C. 2929.19(B)(2)(c) sets out the notifications that are to be provided in
accordance with subsections (B)(1) and (2) which mandates that the court notify the
offender at the sentencing hearing:
(c) If the prison term is a non-life felony indefinite prison term, notify the offender of all of the following:
(i) That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender's presumptive earned early release date, as defined in section 2967.271 of the Revised Code, whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of this section if, at a hearing held under section 2967.271 of the Revised Code, the department makes specified determinations regarding the offender's conduct while confined, the offender's rehabilitation, the offender's threat to society, the offender's restrictive housing, if any, while confined, and the offender's security classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender's incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be reasonable, subject to the limitation specified in section 2967.271 of the Revised Code;
(iv) That the department may make the specified determinations and maintain the offender's incarceration under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the limitation specified in section 2967.271 of the Revised Code; Meigs App. Nos. 23CA6, 23CA7
(v) That if the offender has not been released prior to the expiration of the
offender's maximum prison term imposed as part of the sentence, the
offender must be released upon the expiration of that term.
{¶9} The trial court informed Price of the charges against him and the penalties
that could be imposed upon him and that by entering a guilty plea Price was waiving all
his constitutional rights related to a trial. Price confirmed that he understood the charges,
penalties, and constitutional rights he was waiving. However, as the state concedes, the
trial court did not provide the additional notices at the sentencing hearing concerning the
Ohio Department of Rehabilitation and Correction (ODRC) hearing process outlined in
R.C. 2929.19(B)(2)(c). After informing Price of the consecutive prison term, which was a
jointly recommended sentence, the trial court explained post-release control but did not
notify Price of the rebuttable presumption that he would be released at the expiration of
the minimum term or the hearing procedures outlined in R.C. 2929.19(B)(2)(c):
So, you will [be] subject to up to three years of post release control under
Revised Code section 2967.28. If and when the period of post release
control is imposed, following your release from prison, and if you violate
conditions of supervision, the parole board may impose a prison term as
part of your sentence of up to one half of your stated prison term. If, while
on post release control, you’re convicted of a new felony offense, in addition
to being punished for the underlying conduct, an additional prison term of
one year or what time remains on your post release control term may be
added as an additional, consecutive, or stacked penalty. You also have to
pay the court costs in both and, as I mentioned in case number * * *
22CR214 there will be the forfeitures as were previously articulated.
[SEGMENT 2]
{¶10} We find that Price's sentence was contrary to law because the trial court
failed to provide notice at the sentencing hearing of ODRC's rebuttal of the presumption
as required by subpart (B)(2)(c). See [CITATION], ¶ 24- Meigs App. Nos. 23CA6, 23CA7
30, rev'd on other grounds [CITATION], ¶ 24-30.
{¶11} We sustain Price’s sole assignment of error.
IV. CONCLUSION
{¶12} Having sustained the assignment of error, we reverse the trial court’s
sentence, and remand this cause to the trial court for resentencing.
REVERSED AND REMANDED. Meigs App. Nos. 23CA6, 23CA7
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED AND CAUSE REMANDED and
that appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk. I'm sorry, but it looks like there is no actual text of a court ruling provided. If you could provide the text, I can help you identify and anonymize the court ruling citations as per your instructions.
[CITATION]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2023-P-0053
Plaintiff-Appellant,
Criminal Appeal from the
- vs - Court of Common Pleas
QUENTON BURRELL, JR.,
Trial Court No. 2023 CR 00435
Defendant-Appellee.
OPINION
Decided: February 20, 2024
Judgment: Reversed and remanded
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
James R. Eskridge, Megargel, Eskridge, and Mullins, LLP, 231 South Chestnut Street,
Ravenna, OH 44266 (For Defendant-Appellee).
MATT LYNCH, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals from the lower court’s
sentences of defendant-appellee, Quenton Burrell, Jr., for Illegal Conveyance of
Prohibited Items onto the Grounds of a Detention Facility and Aggravated Possession of
Drugs. For the following reasons, we reverse the judgment of the lower court and remand
for further proceedings consistent with this opinion.
{¶2} On April 20, 2023, the Portage County Grand Jury issued an Indictment,
charging Burrell with Illegal Conveyance of Prohibited Items onto the Grounds of a
Detention Facility, a felony of the third degree, in violation of R.C. 2921.36; and five counts of Aggravated Possession of Drugs, felonies of the third, fourth, and fifth degree, in
violation of R.C. 2925.11.
{¶3} On June 21, 2023, a plea hearing was held and a written plea agreement
was filed. Burrell pled guilty to Illegal Conveyance (Count One) and two counts of
Aggravated Possession (Counts Three and Six), felonies of the third and fourth degree.
The court accepted his pleas and found him guilty of the offenses. It then proceeded to
sentence Burrell and found the following: “In count one, you’re sentenced to nine months;
in count three, you’re sentenced to seven months; in count six, you’re sentenced to nine
months. The sentences imposed under counts one and six are suspended. The
aggregate sentence is seven months at the Lorain Correctional Institution.” The trial court
memorialized the plea and sentence in an entry which repeated that “[t]he sentence on
Counts One and Six are suspended” and his sentence was “an aggregate total of 7
months, or until otherwise legally released.” The entry also stated, in relation to its
discussion of accepting the guilty plea that “if the Defendant is granted community control
at any point, the Defendant will have conditions to follow and if the Defendant violates
any of those conditions, there could be given a longer period under Court control and/or
greater restrictions, or a prison term of 36 months for the felonies of the Third Degree,
and 18 months for the Felony Four.” It did not state that a term of community control was
imposed as part of the sentence.
{¶4} The State appeals and raises the following assignment of error:
{¶5} “The trial court erred by suspending the prison sentences on the illegal
conveyance and third-degree felony aggravated possession counts.”
{¶6} The State argues that the lower court did not have authority to suspend the
Case No. 2023-P-0053 sentences for Illegal Conveyance and the third-degree felony Aggravated Possession
count (Count Six) as there is no statutory provision allowing it to do so.
{¶7} Prior to addressing whether the trial court’s sentence was contrary to law,
we first consider Burrell’s argument that this issue is moot. Burrell argues that this matter
is moot because he was set to complete his prison sentence on November 14, 2023. He
contends that when a sentence is complete, errors relating to the issuance of that
sentence render an appeal moot.
{¶8} Courts have held that “when the prison sentence has already been served
and the underlying conviction is not at issue, an assertion that the trial court erred in
determining the length of that sentence is a moot issue because no relief can be granted.”
[CITATION] (defendant’s challenge to his consecutive sentences was moot since he had already
served the sentence and “there is no relief this court can afford appellant”) (citation
omitted). The foregoing authority, however, is cited in relation to appeals by criminal
defendants requesting a reduction of their sentences rather than in a sentencing appeal
by the State. Burrell recognizes the foregoing but argues: “[J]ustice is blind. This case
is either moot or it[’]s not because the defendant has served his sentence. What is good
for the goose is good for the gander.” We disagree with this argument.
{¶9} In the case of a defendant seeking to reduce his sentence, the completion
of this sentence renders it impossible for the appellate court to provide such a remedy.
In contrast, in the case of an appeal filed by the State, completion of the sentence issued
by the trial court does not prevent the defendant from serving a potentially longer
Case No. 2023-P-0053 sentence if one is ordered on appeal. This issue was addressed by the Tenth District in
[CITATION]. In Marcum, the State
appealed the trial court’s sentence, arguing that it was contrary to law. The appellate
court recognized the different considerations in appeals initiated by the State in contrast
to a defendant. While a defendant’s appeal of a sentence already served is moot due to
the lack of an effective remedy, “the same reasoning does not apply when the state is the
party appealing a sentence, as is the case here, because the state’s challenge to the
leniency of a sentence can result in an effective remedy.” Id. at ¶ 7.
{¶10} It has further been observed that a defendant has “‘no legitimate
expectation of finality in a sentence that remains subject to direct review’” and which has
been appealed by the State. (Citations omitted.) Id. at ¶ 8, citing [CITATION]. “[W]hen there is no legitimate
expectation of finality in a sentence that remains subject to direct review, the defendant
may be resentenced even after the defendant is released from prison.” Id.; [CITATION] (“[b]ecause
[SEGMENT 3]
[defendant’s] sentences * * * were subject to correction * * *, [defendant] had no
expectation of finality in those portions of her original sentence” and it was appropriate to
resentence her although she had completed her previously ordered prison term).
{¶11} Burrell cites [CITATION] as authority for the proposition that there is a jurisdictional concern. In
Holdcroft, the Supreme Court indicated that a trial court loses jurisdiction to sentence a
defendant in certain circumstances when he has already served his term of incarceration.
It indicated that where a “valid prison sanction has been served * * * the court has lost
Case No. 2023-P-0053 jurisdiction to modify the sentence.” (Emphasis sic.) [CITATION] at ¶ 14. We emphasize, however,
that the court held: “Neither this court’s jurisprudence nor Ohio’s criminal-sentencing
statutes allow a trial court to resentence a defendant for an offense when the defendant
has already completed the prison sanction for that offense.” (Emphasis added.) [CITATION] at ¶
19. In [CITATION], the Twelfth District
distinguished Holdcroft where the defendant had completed a prison term for a firearm
specification but not for the underlying offenses, holding that the trial court had jurisdiction
to resentence on those offenses. [CITATION] at ¶ 18-20. Here, while Burrell completed his
sentence for count three, the State is not seeking resentencing for that offense. Rather,
it requests that an improperly imposed suspended sentence for separate offenses be
corrected.
{¶12} Further, the Holdcroft court noted that “a defendant’s legitimate expectation
of finality plays [a role] in constraining the court’s authority to review a sentence.” [CITATION] at ¶
18. See also [CITATION], ¶
23 (“had the victims pursued restitution in a direct appeal, the trial court’s judgment would
not have become final, avoiding the timing and jurisdictional issues created by the
absence of a timely appeal and [the defendant’s] completion of his sentence”). As noted
above, the timely direct appeal initiated by the State avoided concerns about the court
lacking authority to correct its sentence since Burrell did not have a legitimate expectation
of finality. See [CITATION], ¶ 17 (10th Dist.),
citing Holdcroft at ¶ 18 (“only after direct appeal is concluded or the time to appeal has
expired does it become true that ‘[a] trial court does not have the authority to resentence
a defendant * * * after the defendant has already served the prison term for that offense’”).
Case No. 2023-P-0053 As noted above, the Supreme Court in Christian found that the trial court had authority to
resentence a defendant although she had been confined for the length of the original
prison term since the sentence was challenged in a direct appeal. [CITATION] at ¶ 28. Since the
present appeal is not moot and the sentence is subject to review and correction by the
trial court, we will proceed to consideration of whether the trial court’s sentence was
contrary to law.
{¶13} R.C. 2953.08(B)(2) permits the prosecutor to appeal a felony sentence
when the sentence is contrary to law. “The appellate court may increase, reduce, or
otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for resentencing * * * if it clearly
and convincingly finds” that “the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b).
{¶14} The State concedes that it did not object to the sentence in the trial court
and that this matter should be reviewed for plain error. Pursuant to Crim.R. 52(B) “[p]lain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” “In order to prevail under a plain error standard, an
appellant must demonstrate that there was an obvious error in the proceedings and, but
for the error, the outcome would have been otherwise.” [CITATION]. “It is well settled that a sentence that
is contrary to law is plain error and an appellate court may review it for plain error.” [CITATION].
{¶15} The State contends that the lower court acted outside of its statutory
authority when it gave him suspended sentences on two felony counts, Illegal
Conveyance and Aggravated Possession (Count Six), as such a sentence is
Case No. 2023-P-0053 impermissible.
{¶16} “[I]n Ohio, judges have no inherent power to create sentences, and the only
sentence that a trial judge may impose is that provided for by statute.” [CITATION] (a court may “impose sentences only as provided by statute”).
{¶17} Prior to the enactment of SB-2 in 1995, “it was a regular practice in felony
sentencing to impose a prison sentence and then suspend the sentence and grant
probation with specific terms and conditions.” (Citation omitted.) [CITATION]. However, “[c]urrent felony
sentencing statutes * * * require trial courts to impose either a prison term or community
control sanctions on each count.” (Citation omitted.) Id at ¶ 23. “The [post-SB 2 felony-
sentencing] statutes no longer discuss ‘suspension’ of sentence; rather, the alternative to
a sentence of imprisonment is a sentence of community control sanctions.” Id. citing
Baldwin's Ohio Practice, Criminal Law, Section 119:2. Appellate courts have consistently
held that, in issuing a felony sentence, a court may not order a defendant to serve a
suspended sentence. [CITATION] (“a sentencing court can no longer suspend a prison term”); [CITATION] (“current felony sentencing
statutes do not allow a sentencing court to suspend a prison term” and the court’s
issuance of a suspended sentence was contrary to law and constituted plain error); [CITATION] (“there is no provision in the
sentencing statute which permits a court to suspend a prison term”) (citation omitted).
Case No. 2023-P-0053 {¶18} We are aware of no authority providing for the imposition of suspended
sentences for these offenses and Burrell does not provide contrary arguments on the
merits of this issue, arguing only in his brief that the matter is moot. “[C]ourts of common
pleas do not have inherent power to suspend execution of a sentence in a criminal case
and may order such suspension only as authorized by statute.” [CITATION]. The trial court failed to
order either the imposition of a prison term or a term of community control as required
under the sentencing statutes on the relevant offenses. [CITATION]. We find that
the trial court erred in ordering suspended sentences for Illegal Conveyance and
Aggravated Possession of Drugs (Count Six), vacate those sentences, and remand this
matter for resentencing on those offenses. See [CITATION].
{¶19} The sole assignment of error is with merit.
{¶20} For the foregoing reasons, Burrell’s sentences for Illegal Conveyance of
Prohibited Items onto the Grounds of a Detention Facility and Aggravated Possession of
Drugs (Count Six) are reversed and this matter is remanded for further proceedings
consistent with this opinion. Cost to be taxed against appellee.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
Case No. 2023-P-0053 ```plaintext
```
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112574
v. :
TIMOTHY M. LEWIS, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 11, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641305-A
Appearances:
Flowers & Grube and Louis E. Grube, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christine M. Vacha, Assistant Prosecuting
Attorney, for appellee.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Timothy M. Lewis, Sr. (“Lewis”) appeals the
imposition of consecutive sentences arising from guilty pleas and convictions. We
affirm the trial court’s judgment. I. Background
On June 27, 2019, Lewis was indicted for the following:
Count 1, rape, felony of the first degree, in violation of [CITATION]
(1)(B), with a sexually violent predator specification attached.
Count 2, gross sexual imposition, a felony of the third degree, in
violation of [CITATION] with a sexually violent predator
specification attached.
Count 3, rape, a felony of the first degree, in violation of [CITATION] with a sexually violent predator specification
attached.
Count 4, gross sexual imposition, a felony of the third degree, in
violation of [CITATION] with a sexually violent predator
specification attached.
[SEGMENT 4]
The charges arose from allegations of sexual conduct involving three
minor relatives. On July 17, 2019, 26-year-old Lewis was granted a bond reduction
and placed on a GPS monitor. On January 31, 2022, the parties set a jury trial date
for May 9, 2022. In February 2022, Lewis was in court for GPS violations, several
failures to report, passing through the exclusion zones where the alleged victims
resided, making unauthorized stops on the way to work, and testing positive for
marijuana and alcohol. His bond conditions were reinstated, and GPS reinstalled.
The trial court was advised of Lewis’s struggle to catch the bus to his
temporary job in Solon and maintain cell phone service due to budget constraints.
Lewis explained that he was working on the marijuana problem but used it to deal
with emotional issues. The probation officer advised Lewis to speak with a
counselor regarding his dependency. Lewis’s stops at the store on the way to work
were to use his cash card to obtain bus fare. Lewis also advised that the occasional vehicular passes through
exclusion zones occurred unintentionally when he was able to get rides to work.
Lewis also explained he had only been informed of one exclusion zone and that one
of the zone violations listed were for an area where the alleged victim no longer
resided. Lewis accepted the trial court’s offer to test negative for marijuana during
a 45-day day window rather than wait in jail.
On March 21, 2022, Lewis appeared in court to address additional
GPS violations. The 34 minutes spent at the basketball court located underneath his
grandmother’s residence with whom he resided was for a family balloon release for
a brother who had committed suicide several years earlier. The two nine-minute
periods at the basketball court on two evenings were to take the dog out. Two eight-
minute stops on two days at 3:06 p.m. occurred when Lewis received a ride home by
a coworker who stopped at their residence on the way. He also went to the basketball
court two other occasions for about nine minutes at approximately 7:40 p.m. Lewis
explained that the first basketball court visit was for a family balloon release on the
third anniversary of Lewis’s brother’s suicide and the other two times to take the dog
out. The two private residence stops at 3:06 p.m. occurred on days when the
coworker who gave Lewis a ride from work stopped at their residence on the way.
The trial court noted that Lewis had been on house arrest for two and one-half years
and determined that Lewis’s movement would no longer be restricted except for the
exclusion zones. On May 9, 2022, the parties appeared for trial. Defense counsel
explained that he was waiting for a medical certification crucial to Lewis’s defense
and requested a continuance. The state advised that one of the alleged victims and
the victim’s parent were not being cooperative so Counts 1 and 4 would probably be
dismissed. Trial was rescheduled for August 1, 2022.
On June 6, 2022, Lewis appeared in court to answer the state’s claim
that Lewis rode through part of an exclusion zone that the state said “was not an
intentional stop.” Since Lewis was informed of the exclusion area on May 20, 2022,
he was arrested. The state could not tell the trial court where Lewis was at within
the zone or his proximity to the excluded source, and he was at home by the time of
his arrest. Lewis had not tested positive for marijuana since early 2022. The trial
court decided to remove the GPS monitor that Lewis had been wearing for almost
three years, though he remained under supervised release.
On August 1, 2022, the defense requested another continuance as co-
counsel was in trial. Trial was rescheduled for the tenth time to October 17, 2022.
On October 17, 2022, Lewis failed to appear by 10:09 a.m. for the 10:00 a.m. trial
and a capias was issued. On November 1, 2022, Lewis appeared and advised the
trial court that when his shift in Solon ended at 6:45 a.m., his wallet was missing
from his locker and his cell phone screen was broken. He walked home from Solon
to Cleveland and emailed his attorney two days later. Counsel reminded the trial
court that Lewis had always been communicative and attendant and appeared of his
own volition. Lewis was taken into custody. On February 1, 2023, Lewis entered a guilty plea to Counts 2 and 3,
as amended, for gross sexual imposition, a third-degree felony under [CITATION].
Counts 1 and 4 were nolled. Lewis was referred for a presentence
investigation (“PSI”).
At the March 1, 2023 sentencing, Lewis cited mitigating factors for
the trial court’s consideration. Lewis was one and one-half years old in 1995 when
he and his eight siblings were placed in separate foster homes due to their mother’s
struggles with drug issues. Lewis returned to his mother’s home in 2002 and at the
age of 13 helped to run the household to prevent him and his siblings from being
removed again. He was diagnosed with post-traumatic stress disorder and anxiety
and used marijuana and alcohol as coping mechanisms. Lewis had no criminal
record. His brother, who was still in the foster care system at the time of trial, was
also charged with committing similar offenses involving the victims. His case was
pending before a different judge.
One of Lewis’s brothers committed suicide a few years prior to trial,
an uncle died of a heart attack, and his mother and grandmother suffered strokes.
Lewis paid rent to help his grandmother and worked consistently prior to entering
a plea. Each incident occurred a single time. The affected family members desired
to put the acts behind them that occurred several years before the 2019 indictments.
Lewis decided to enter a plea because the matter had been going on for three years
and he was tired of fighting it. The defense requested a community-control sanction
with substance abuse treatment and counseling. On March 2, 2023, Lewis was sentenced to five years on Count 2 and
three years on Count 3 to be served consecutively for a total term of eight years and
declared to be a Tier II sex offender. Lewis appeals.
II. Assignment of Error
Lewis’s single assignment of error is that the trial court committed
plain error by imposing consecutive sentences because the record clearly and
convincingly does not support any of the necessary factual findings.
III. Discussion
“It is well-settled that a sentence that is contrary to law is plain error
and an appellate court may review it for plain error.” [CITATION], ¶ 17, citing [CITATION], ¶ 9, citing [CITATION], ¶ 6. A trial court’s failure to make the
required R.C. 2929.14(C)(4) consecutive-sentence findings is contrary to law which
constitutes plain error. Id., citing [CITATION], ¶ 15.
An appellate court reviews felony sentences under the standard set
forth in R.C. 2953.08(G)(2). [CITATION], ¶ 16. Consecutive sentences may be challenged by arguing (1) the
sentence is contrary to law due to the trial court’s failure to make the requisite R.C.
2929.14(C)(4) requirements pursuant to R.C. 2953.08(G)(2)(b); or (2) the record
“‘clearly and convincingly’” does not support the court’s R.C. 2929.14(C)(4) findings pursuant to R.C. 2953.08(G)(2)(a). [CITATION], citing [CITATION].
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
[CITATION], quoting [CITATION].
A trial court is not required to recite the statutory language verbatim,
nor is it required to state its reasons to support its findings “‘“provided that the
necessary findings can be found in the record and are incorporated in the sentencing
entry.””’ [CITATION], quoting [CITATION], quoting [CITATION].
The trial court stated:
The problem when we’re dealing with victims who are children is that
the impact on those victims is great. I mean, this is something that
they’re going to live with and something that’s going to keep replaying
itself in their head.
So while I knew that I was going to send you to prison, the question is
for how long. I understand that you don’t have a prior record and I
understand that you’re all family, and I know this is tearing the family
apart, because, on one hand, again, they want you to pay, and another
hand, you’re the brother, you’re the father—not the father, the son, the
grandson, et cetera. But I just feel that this is serious, and I don’t know—I don’t think it
deserves a slap on the wrist. I just don’t. I think that this is something
that—I understand your background as well when you’re taken from
your own parent at a young age and you’re put into the system. I
understand that there is a lot of trauma in your life as well. But now
there is trauma for these two kids, especially the young girl as well as
the guy. Even though he is older now and he was older at the time, it
still is something that he won’t forget.
[SEGMENT 5]
[CITATION]
The trial court continued:
With that being said, as to amended Count 2, the Defendant is
sentenced to 5 years in prison.
As to the amended Count 3, I am going to sentence you to 3 years in
prison. That time will run consecutive for a total time of 8 years in
prison.
The Court finds that consecutive sentences are necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the dangers it would pose to the public.
Furthermore, the Court finds that at least two of the multiple offenses
were committed as part of one or more courses of conduct and that the
harm caused by the abuse on these children is great, and no single
prison term for any of the offenses committed as part of the conduct
adequately reflects the seriousness of the offender’s conduct.
The Court has taken into consideration the fact that he has no prior
record. That is why the sentence is as it is and not more.
(Emphasis added.) [CITATION]
Lewis expressed remorse to the trial court. The trial court heard at
sentencing, and the record contains the same in the PSI, the details of the sexual
misconduct and the impact that Lewis’s behavior had on the victims. The fact that familial relationships were involved has been painful and traumatic for the victims
and the family members.
After conducting a thorough review of the record, this court does not
find that the record clearly and convincingly fails to support the trial court’s findings.
We therefore find that Lewis has not demonstrated plain error. The assignment of
error is overruled.
IV. Conclusion
The trial court’s judgment is affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, A.J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION);
MARY J. BOYLE, J., CONCURS WITH THE SEPARATE CONCURRING IN
JUDGMENT ONLY OPINION KATHLEEN ANN KEOUGH, A.J., CONCURRING IN JUDGMENT ONLY:
I concur with the decision affirming Lewis’s sentence that included
consecutive sentences. But I write separately to express my opinion that a defendant
does not need to object to the trial court’s imposition of consecutive sentences to
preserve the issue on appeal.
In [CITATION], the lead opinion addressed and sustained Beasley’s challenge to the
imposition of consecutive sentences even though he did not object to the trial court
imposing consecutive sentences. Id. at ¶ 252-262. The dissenting opinion explicitly
pointed out that because the defendant did not object, he had waived all but plain
error. Id. at ¶ 268-280 (DeWine, J., dissenting). Because the [CITATION] majority did
not find that this impairment hindered the court’s review, I believe that the court
implicitly held that a defendant does not need to object to a trial court’s imposition
of consecutive sentences.
Additionally, the Twelfth District in [CITATION], recently addressed this issue when
the state, relying on [CITATION], suggested that the court’s standard of review is limited to plain
error because the defendant did not object after consecutive sentences were
imposed.
The relevant paragraph in [CITATION] cites another capital case, [CITATION],
Hunter, in turn, cites a third capital case, [CITATION] 404, 2008-Ohio-2, 880 N.E.2d 31, [¶ 377]. In [CITATION], the appellant
argued that a trial court erred by imposing consecutive sentences for
noncapital counts in a capital case, and the supreme court determined
that plain error review applied because the appellant failed to raise this
argument at the sentencing hearing. [CITATION] at ¶ 166. In [CITATION], the
supreme court applied plain error review to the appellant’s argument
that the imposition of consecutive sentences in a capital case was
unconstitutional. [CITATION] at ¶ 151-155. In [CITATION], the supreme court did
not even mention plain error in the portion cited in [CITATION], but instead
stated that when the appellant objected to consecutive sentences but
failed to raise the specific constitutional arguments he raised on appeal,
those constitutional arguments were forfeited. [CITATION] at ¶ 377.
While all three of these cases discuss either plain error review or
forfeiture in the context of a challenge to consecutive sentences, none
of these cases involve the type of argument before us today — that is,
none involve a challenge to R.C. 2929.14(C)(4) consecutive sentence
findings under R.C. 2953.08(G)(2). It is not clear that the Ohio
Supreme Court in [CITATION], or [CITATION] intended to suggest that
an offender who fails to object to consecutive sentences after they are
imposed is limited to plain error review when the offender brings an
appeal challenging R.C. 2929.14(C)(4) consecutive sentence findings
under R.C. 2953.08(G)(2).
Id. at ¶ 26-28.
I agree with the Morris analysis, and based on Beasley, it is my
opinion that a defendant does not need to object to preserve appellate review
beyond that of plain error when challenging the consecutive-sentence findings
under R.C. 2929.14(C)(4). Because the majority opinion implies otherwise, I
respectfully concur in judgment only.
[Cite as [CITATION],
2023-Ohio-4788.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 112472 and 112871
v. :
KENNETH NORRIS, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: December 28, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-22-674411-A and CR-22-673597-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon K. McNally and Jillian Piteo,
Assistant Prosecuting Attorneys, for appellee.
Robert A. Dixon, for appellant.
ANITA LASTER MAYS, A.J.:
I. Introduction
Defendant-appellant Kenneth Norris, Jr. (“Norris”) appeals the
imposition of consecutive sentences for his criminal convictions in this consolidated
====== appeal. We vacate the trial court’s judgment and remand it for further proceedings
pursuant to this opinion.
On January 11, 2023, Norris pleaded guilty to the following offenses:
Cuyahoga C.P. No. CR-22-673597: gross sexual imposition, a third-
degree felony, R.C. 2907.05(A)(4), as amended in the indictment.
Cuyahoga C.P. No. CR-22-674411: having weapons while under
disability, a third-degree felony, R.C. 2923.13(A)(2), as charged in
Count 1 of the indictment. Aggravated menacing, a first-degree
misdemeanor, R.C. 2903.21(A), as charged in Count 2 of the
indictment.
Norris was sentenced to four years in CR-22-673597. In CR-22-
674411, Norris was sentenced to 12 months on Count 1 and 180 days on Count 2, to
run concurrently to each other. The sentences in CR-22-673597 and CR-22-674411
were to be served consecutively to each other.
Norris contends that the trial court erred in imposing consecutive
sentences without finding on the record that consecutive sentences were not
disproportionate to the danger that the appellant posed to the public.
“It is well-settled that a sentence that is contrary to law is plain error,
and an appellate court may review it for plain error.” [CITATION], ¶ 17, citing [CITATION], ¶ 9, citing [CITATION], ¶ 6. Thus, the trial court’s failure to make
the required R.C. 2929.14(C)(4) consecutive-sentence findings is contrary to law,
which constitutes plain error. Id., citing [CITATION], ¶ 15. “R.C. 2953.08(G)(2) provides that when reviewing felony sentences,
a reviewing court may overturn the imposition of consecutive sentences where the
[SEGMENT 6]
court ‘clearly and convincingly’ finds that (1) ‘the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4),’ or (2) ‘the sentence is
otherwise contrary to law.’” [CITATION]
To impose consecutive sentences, the trial court must make the
specific findings set forth in the statute: “consecutive sentence is necessary to protect
the public from future crime or to punish the offender”; “consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public.” R.C. 2929.14(C)(4). At a minimum, one of the
following is required:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
[CITATION]
====== End of Part of a Court Ruling ====== An appellant “can challenge consecutive sentences on appeal in two
ways. First, the defendant can argue that consecutive sentences are contrary to law
because the court failed to make the necessary findings required by R.C.
2929.14(C)(4).” [CITATION], citing R.C. 2953.08(G)(2)(b); [CITATION] “Second, the defendant can argue that the record does not
support the court’s findings made pursuant to R.C. 2929.14(C)(4).” Id., citing R.C.
2953.08(G)(2)(a); [CITATION] Norris argues the former.
“R.C. 2953.08(G)(2) provides that when reviewing felony sentences,
a reviewing court may overturn the imposition of consecutive sentences where the
court ‘clearly and convincingly’ finds that (1) ‘the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4),’ or (2) ‘the sentence is
otherwise contrary to law.”’ [CITATION], ¶ 18.
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
[CITATION], quoting [CITATION]
A trial court is not required to recite verbatim the statutory language,
nor is it required to state its reasons to support its findings “‘“provided that the necessary findings can be found in the record and are incorporated in the sentencing
entry.””’ [CITATION], ¶ 17, quoting
[CITATION], ¶ 176, quoting
[CITATION], ¶ 37.
The trial court recited Norris’s prior issues.
Thank you. In case number 654165, that’s the probation case. You
were on probation for attempted felonious assault, felony of the third
degree. That was count 1. Domestic violence, a felony of the fourth
degree, count 5. Endangering children a misdemeanor of the first
degree, counts 8 and 9.
The Court placed you on probation and it appears you violated on more
than one time. This would have been not the first time you violated,
but the first to my knowledge because this happened in April, so I
wasn’t aware of that.
You had a positive drug screen on May 5, 2022. We held a hearing. You
were on GPS monitoring. You went through the victim’s zone on
6/13/2022. Apparently, the victim no longer lived at that residence. I
released you.
As of 8/31 you were remanded, so you will receive credit for time
served. You have been in jail since 8/31.
You’re found to be in violation in case number 654165. Probation is
terminated on that case.
I have had an opportunity to look at and review the pre-sentence
investigation report for that case, which was less than a year old. It
reveals you have quite a lengthy criminal history including an
adjudication when you were delinquent in 2010 for a gross sexual
imposition case, several domestic violence cases, some of which have
been dismissed.
There’s another sex offense back in 2015 though. You were found not
guilty on that verdict of not guilty to an aggravated robbery in 2018 with
firearm specifications. Then you picked up the cases with me and then you picked up these
two new cases. I do not find you’re a good candidate for probation. You
were on probation for all of the reasons that [defense counsel] was
asking me to put you on probation for today. That did not -- that path
did not seem to work very well. You did pick up two new cases.
Tr. 32-34.
The trial court also announced:
In case number 673597, count 1, four years. For the reasons that I have
stated, that you were on probation at the time the offenses were
committed, your record, I do not feel a single sentence will protect the
public, and am going to impose a consecutive sentence, and I take into
consideration the probation case.
I’m not imposing a sentence on that, but I am imposing a consecutive
sentence on -- I do find also your criminal history shows a consecutive
term is necessary to protect the public.
Tr. 35.
The record contains Norris’s criminal history, probation violations,
and the nature of the crimes. However, the trial court failed to make the requisite
disproportionate findings under R.C. 2929.14(C)(4) according to [CITATION]. For that reason, this court vacates
Norris’s consecutive sentences and remands the matter for the trial court to address
whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so,
to make the required findings on the record and incorporate those findings in the
sentencing journal entry pursuant to [CITATION].
Norris has demonstrated plain error. The assignment of error is
sustained. II. Conclusion
The trial court’s judgment is vacated and remanded for proceedings
pursuant to this opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that appellant recover from appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY
(WITH SEPARATE OPINION);
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY KATHLEEN ANN KEOUGH, J., CONCURRING IN JUDGMENT ONLY:
I concur with the decision to vacate Norris’s consecutive sentences
and remand the matter to the trial court. But I write separately to express my
opinion that a defendant does not need to object to the trial court’s imposition of
consecutive sentences to preserve the issue on appeal.
In [CITATION], the lead opinion addressed and sustained Beasley’s challenge to the
imposition of consecutive sentences even though he did not object to the trial court
imposing consecutive sentences. Id. at ¶ 252-262. The dissenting opinion explicitly
pointed out that because the defendant did not object, he had waived all but plain
error. Id. at ¶ 268-280 (DeWine, J., dissenting). Because the Beasley majority did
not find that this impairment hindered the court’s review, I believe that the court
implicitly held that a defendant does not need to object to a trial court’s imposition
of consecutive sentences.
Additionally, the Twelfth District in [CITATION], ¶ 26-28, recently addressed this issue when
the state, relying on [CITATION], suggested that the court’s standard of review is limited to plain
error because the defendant did not object after consecutive sentences were
imposed.
The relevant paragraph in Whitaker cites another capital case, [CITATION],
Hunter, in turn, cites a third capital case, [CITATION] 404, 2008-Ohio-2, 880 N.E.2d 31, [¶ 377]. In [CITATION], the appellant
argued that a trial court erred by imposing consecutive sentences for
noncapital counts in a capital case, and the supreme court determined
that plain error review applied because the appellant failed to raise this
argument at the sentencing hearing. [CITATION] at ¶ 166. In [CITATION], the
supreme court applied plain error review to the appellant’s argument
that the imposition of consecutive sentences in a capital case was
unconstitutional. [CITATION] at ¶ 151-155. In [CITATION], the supreme court did
not even mention plain error in the portion cited in [CITATION], but instead
stated that when the appellant objected to consecutive sentences but
failed to raise the specific constitutional arguments he raised on appeal,
those constitutional arguments were forfeited. [CITATION] at ¶ 377.
[SEGMENT 7]
While all three of these cases discuss either plain error review or
forfeiture in the context of a challenge to consecutive sentences, none
of these cases involve the type of argument before us today — that is,
none involve a challenge to R.C. 2929.14(C)(4) consecutive sentence
findings under R.C. 2953.08(G)(2). It is not clear that the Ohio
Supreme Court in [CITATION], or [CITATION] intended to suggest that
an offender who fails to object to consecutive sentences after they are
imposed is limited to plain error review when the offender brings an
appeal challenging R.C. 2929.14(C)(4) consecutive sentence findings
under R.C. 2953.08(G)(2).
Id. at ¶ 26-28.
I agree with the Morris analysis, and based on [CITATION], it is my
opinion that a defendant does not need to object to preserve appellate review beyond
that of plain error when challenging the consecutive-sentence findings under R.C.
2929.14(C)(4). Because the majority opinion finds otherwise, I respectfully concur
in judgment only.
====== End of Part ====== [CITATION]
[Cite as [CITATION].]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112268
v. :
JASON PACHECO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: November 22, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-668598-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eben O. McNair, Daniel Cleary, and
Samantha Sohl, Assistant Prosecuting Attorneys, for
appellee.
The Law Office of Schlachet and Levy and Eric M. Levy,
for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Jason Pacheco (“Pacheco”) appeals his
convictions stemming from a bar fight and car crash on December 24, 2021, that killed one victim and seriously injured another. For the following reasons, we affirm
in part, reverse in part, and remand for further proceedings consistent with this
opinion.
Procedural and Factual History
On December 24, 2021, Pacheco and his friends were involved in a
disturbance at a bar. Pacheco and his friends left the bar and drove south on W. 25th
Street, where he ran a red light. Pacheco was speeding at approximately 60 m.p.h.
when he crashed into Ms. Hana Mohamed’s minivan. Ms. Mohammed was partially
ejected from the vehicle. Ms. Mohammed and her mother, Naderah Iwais, were
transported to the hospital with serious injuries. Ms. Iwais succumbed to her
injuries. Pacheco and his passengers fled the scene of the accident. The next day,
Pacheco contacted the police.
Pacheco was indicted on March 15, 2022, in C.P. No. CR-22-668598
in a 16-count indictment stemming from the incident at the bar and the collision.
On October 31, 2022, Pacheco pleaded guilty to amended Count 1, felonious assault,
a felony of the second degree, in violation of R.C. 2903.11(A)(1); Count 2, aggravated
vehicular homicide, a felony of the third degree, in violation of R.C.
2903.06(A)(2)(a), which merged with Count 1 for sentencing; Count 4, aggravated
vehicular assault, a felony of the third degree, in violation of R.C. 2903.08(A)(2)(b);
Count 6, failure to stop after accident, a felony of the third degree, in violation of
R.C. 4549.02(A)(1); Count 7, failure to stop after accident, a felony of the fifth
degree, in violation of R.C. 4549.02(A)(1); Count 9, riot, a misdemeanor of the first degree, in violation of R.C. 2917.03(A)(1). The trial court ordered a presentence
investigation (“PSI”), and sentencing was set for November 30, 2022.
Pacheco was sentenced to six to nine years on Count 1, felonious
assault. Count 1 was subject to an indefinite six to nine years under the Reagan
Tokes Law and was merged with Count 2 for sentencing purposes. The court
imposed a prison term of three years on Count 4. The court ordered consecutive
service for Counts 1 and 4 and stated the following findings on the record:
THE COURT: The record should reflect that I imposed a consecutive
sentence on Counts 1 and 4. The court finds that consecutive sentences
are necessary to protect the public from future crime and to punish the
offender, and consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public. The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the
public from future crimes by the offender, and there were two separate
victims in this case.
Regarding the remaining counts, the trial court imposed a prison
term of 36 months on Count 6, 12 months on Count 7, and six months on Count 9,
all concurrent to Count 1. The aggregate term was six to nine years. Finally, the
court imposed a ten-year license suspension upon Pacheco’s release from prison.
Pacheco now appeals and raises the following assignments of error for review.
First Assignment of Error
The trial court erred when it imposed a sentence suspending the
appellant’s driver’s license for ten-years, contrary to law. Second Assignment of Error
The trial court erred when it imposed a sentence assessing points to
appellant’s driving record not announced at the oral sentencing hearing
and contrary to law.
Third Assignment of Error
The record does not support the consecutive sentence imposed upon
appellant, and the findings required to impose consecutive sentences
were incomplete and contrary to law.
Fourth Assignment of Error
Appellant’s indefinite sentence imposed under the Reagan Tokes
sentencing scheme violates appellant’s rights under the United States
Constitution applied to the state of Ohio through the Fourteenth
Amendment and the Ohio constitution as it denies appellant due
process of law; violates the right to equal protection; violates the Sixth
Amendment right to a jury trial; violates the separation of powers
doctrine; does not provide fair warning of the dictates of the statute to
ordinary citizens; and the statute conferred too much authority to the
Ohio Department of Rehabilitation and Correction (ODRC).
Fifth Assignment of Error
The trial court erred when it reflected the wrong code section for
amended Count 1, felonious assault, in its plea and sentencing journal
entries.
Law and Analysis
The standard of review for felony sentencing requires an appellate
court to review the record, including the findings underlying the sentence ordered
by the sentencing court. [CITATION] If the reviewing court clearly and convincingly finds that (1) the record
does not support the sentencing court’s findings or (2) the sentence is otherwise
contrary to law, then the appellate court may increase, reduce, or otherwise modify a sentence; or the appellate court may vacate the sentence and remand the matter
to the court for resentencing. [CITATION] For ease of analysis, Pacheco’s assignments of
error will be addressed out of order and together, where appropriate.
License Suspension and Points
Pacheco’s first and second assignments of error will be addressed
together for ease of analysis.
Pacheco argues in his first and second assignments of error the trial
court erred when it imposed a ten-year driver’s license suspension on Count 4,
aggravated vehicular assault, under R.C. 2903.08(A)(2)(b); and the trial court failed
to inform Pacheco that six points were assessed on his license.
As a preliminary matter, R.C. 2903.08(C)(2) and (3) govern
punishment for vehicular assault under R.C. 2903.08(A)(2) and (3).
R.C. 2903.08(C)(2) provides in relevant part:
In addition to any other sanctions imposed, the court shall impose
upon the offender a class four suspension of the offender’s driver’s
license, commercial driver’s license, temporary instruction permit,
probationary license, or nonresident operating privilege from the range
specified in division (A)(4) of section 4510.02 of the Revised Code or,
if the offender previously has been convicted of or pleaded guilty to a
violation of this section, any traffic-related homicide, manslaughter, or
assault offense, or any traffic-related murder, felonious assault, or
attempted murder offense, a class three suspension of the offender’s
driver’s license, commercial driver’s license, temporary instruction
permit, probationary license, or nonresident operating privilege from
the range specified in division (A)(3) of that section.
[SEGMENT 8]
The assessment of points is also prescribed by statute. R.C. 4510.036
requires as follows: (B) Every court of record or mayor’s court before which a person is
charged with a violation for which points are chargeable by this section
shall assess and transcribe to the abstract of conviction that is
furnished by the bureau to the court the number of points chargeable
by this section in the correct space assigned on the reporting form.
***
(C) A court shall assess the following points for an offense based on the
following formula:
(1) Aggravated vehicular homicide, vehicular homicide, vehicular
manslaughter, aggravated vehicular assault, or vehicular assault when
the offense involves the operation of a vehicle, streetcar, or trackless
trolley on a highway or street ______6 points.
In the instant matter, Pacheco argues that the trial court imposed a
ten-year license suspension, which is unauthorized by law for vehicular assault
conviction and failed to inform him that a six-point license assessment was
statutorily required. There is no dispute that if the crimes are statutory, so are the
penalties, and the only sentence that a trial court may impose is that provided for by
statute. [CITATION], ¶ 19.
As it relates to the license suspension, Pacheco claims that absent a
prior conviction, he is only subject to a class four suspension. A class four
suspension requires the court to impose a definite license suspension of one to five
years. A trial court may enhance a class four license suspension to a class three
suspension when the charge includes a prior conviction. R.C. 2903.08(C)(2).
Pacheco pleaded guilty to two counts of failure to stop after an
accident in violation of R.C. 4549.02. R.C. 2903.08 requires the trial court to enhance a violation of R.C. 2903.08(A)(2) from an F4 to an F3, based on the same
course of conduct as the violations for a failure to stop after an accident; however, it
does not permit an enhancement of the class license suspension. R.C. 2903.08
requires a previous conviction and may not rely on the same course of conduct that
resulted in the violation of R.C. 2903.08(A)(2) before the trial court is required to
enhance a class four license suspension to a class three license suspension.
In the instant case, Pacheco had no applicable previous conviction.
The trial court was required to impose a definite term of suspension of between one
and five years. Accordingly, the ten-year driver’s license suspension is contrary to
law.
Pacheco alleges that the trial court assessed six points on his license
under R.C. 4510.036 but failed to impose points during the sentencing hearing when
Pacheco was physically present. R.C. 4510.036. Pacheco relies on Crim.R. 43, which
provides in part:
Except as provided in Rule 10 of these rules and division (A)(2) of this
rule, the defendant must be physically present at every stage of the
criminal proceeding and trial, including the impaneling of the jury, the
return of the verdict, and the imposition of sentence, except as
otherwise provided by these rules.
A sentence is contrary to law when the sentence announced by the
trial court at the hearing differs from that in the sentencing entry. [CITATION], ¶ 21. The trial court errs when its
judgment entry differs from the sentence it announced at the sentencing hearing in
the defendant’s presence. [CITATION] Ohio-3320, ¶ 18. The record reveals that the trial court did not inform Pacheco that
he would be assessed six points against his license during the plea or sentencing
hearings.
The sentence announced in open court violated Crim.R. 43 and was,
therefore, contrary to law. Pacheco’s first and second assignments of error are
sustained.
Consecutive Sentence
Pacheco argues in his third assignment of error that the record does
not support the consecutive sentence imposed and the findings required to impose
consecutive sentences were incomplete and contrary to law.
An appellate court reviews challenges to consecutive sentences de
novo. If a trial court failed to make the requisite findings, the appellate court must
find the order of consecutive sentences was contrary to law and either modify or
vacate the sentence and remand. [CITATION]. If the trial court made the required findings, the
appellate court may only reverse or modify the sentence, including the number of
consecutive sentences, if the court “clearly and convincingly finds that the record
does not support the trial court’s findings.” [CITATION].
When the trial court imposes consecutive sentences, it must make
findings under R.C. 2929.14(C)(4) that a consecutive sentence is 1) necessary to
protect the public from future crime or punish the offender; 2) proportionality both as to the seriousness of the offender’s conduct and danger posed to the community;
and, 3) the need to protect the public from harm so great or unusual that a single
term does not adequately reflect the seriousness of his repeated conduct. [CITATION].
Pacheco argues that the sentencing hearing transcript and journal
entry of the sentencing contained different findings. First, the appellate court must
review the record and determine if the trial court made findings under
R.C. 2929.14(C)(4).
Additionally, the court must find any one of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed under section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4)
In the instant case, the trial court made the following findings on the
record:
The record should reflect that I did impose a consecutive sentence on
Count 1 and Count 4. The court finds that consecutive sentences are
necessary to protect the public from future crime and to punish the offender, and consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public. The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender, and there were two separate
victims in this case.
(Tr. 34.)
The trial court is required to make the statutory findings on the record
and incorporate them in its journal entry; however, the trial court is not required to
recite a word-for-word recitation of the language of R.C. 2929.14(C)(4). [CITATION]. The relevant
inquiry is whether the reviewing court can discern that the trial court engaged in the
correct analysis and determine that the record contains evidence supporting the
court’s findings. Id.
Here, the trial court clearly found that R.C. 2929.14(C)(4)(c) was
applicable. The record reflects that the court reviewed the PSI and considered
Pacheco’s criminal history, including fleeing from police, driving under suspension,
failing to maintain physical control, and prior drug cases, and that the serious
injuries sustained by two victims and loss of life caused by Pacheco’s criminal
conduct necessitated consecutive sentences to protect the public. The sentencing
entry however, cites the wrong subsection of R.C. 2929.14(C)(4). It is well settled
that the court may correct clerical mistakes through a nunc pro tunc entry to reflect
what actually occurred in open court. See [CITATION]. Furthermore, the record demonstrates that the trial court considered
the number of sentences it imposed consecutively as well as the resulting aggregate
sentence when the trial court imposed consecutive sentences on Counts 1 and 4 and
concurrent sentences on the remaining counts, for an aggregate sentence of six to
nine years. The trial court is ordered to correct nunc pro tunc, the sentencing entry
to reflect the findings it made on the record. Accordingly, Pacheco’s third
assignment of error is overruled in part and sustained in part.
Reagan Tokes
In his fourth assignment of error, Pacheco alleges his appellant’s
indefinite sentence imposed under the Reagan Tokes sentencing scheme violates
his rights under the United States Constitution applied to the state of Ohio through
the Fourteenth Amendment and the Ohio Constitution since it denies appellant due
process of law; violates the right to equal protection; violates the Sixth Amendment
right to a jury trial; violates the separation-of-powers doctrine; does not provide fair
warning of the dictates of the statute to ordinary citizens; and the statute conferred
too much authority to the Ohio Department of Rehabilitation and Correction
(“ODRC”).
The Ohio Supreme Court recently addressed these issues in [CITATION], and found they lack merit. See [CITATION],
[SEGMENT 9]
8th Dist. Cuyahoga Nos. 112077 and 112078, 2023-Ohio-3360, at ¶ 15.
Pacheco’s fourth assignment of error is overruled. Plea and Sentencing Entries
In his fifth assignment of error, Pacheco argues that the trial court
erred when it reflected a plea to Count 1, felonious assault by means of a weapon or
deadly ordnance, in violation of R.C. 2903.11(A)(2), instead of felonious assault in
violation of R.C. 2903.11(A)(1), as amended, in its plea and sentencing journal
entries.
The state concedes that the plea and sentencing entries reflect the
incorrect section of the Revised Code, for which Pacheco pleaded guilty. A nunc pro
tunc entry should reflect what the court decided properly. [CITATION] A careful review of the
record reflects that the state amended Count 1 by removing the language “by means
of a weapon or dangerous ordnance.”
Accordingly, Pacheco pled guilty to felonious assault in violation of
R.C. 2903.11(A)(1). Pacheco’s fifth assignment of error is sustained. This matter is
remanded to enter a nunc pro tunc order to correct the plea and sentencing entries
consistent with this opinion.
Judgment is affirmed in part, reversed in part, and this matter is
remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution. It appears that the provided part of the court ruling does not contain any court ruling citations. Therefore, there are no citations to remove or replace. Here is the text, unchanged:
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
EMANUELLA D. GROVES, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR I'm sorry, it appears I did not receive the actual part of the court ruling. Could you please provide the part of the court ruling that needs to be processed?
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as State v. Efford, 2023-Ohio-3360.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 112077 and 112078
v. :
DEAMAUTE EFFORD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: September 21, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-645865-A and CR-20-653320-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey S. Schnatter, Assistant Prosecuting
Attorney, for appellee.
Flowers & Grube, Louis E. Grube, and Melissa A. Ghrist,
for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Deamaute Efford (“Efford”) appeals his
sentence after guilty pleas to involuntary manslaughter and other charges. For the
reasons that follow we affirm in part and remand in part for the trial court to correct
its sentencing entry.
Factual and Procedural History
On November 18, 2019, Efford was indicted in Cuyahoga County C.P.
No. CR 19-645865-A (“Case No. 19-645865”) on one count of domestic violence a
felony of the fifth degree. The indictment alleged: furthermore, Efford knew that
the victim, Z.R. was pregnant. The indictment also included a pregnant-victim
specification.
On September 24, 2020, Efford, along with two codefendants,
Jahmontay Harder (“Harder”) and Teighlor Johnson (“Johnson”), was indicted in
Cuyahoga County C.P. No. CR 20-653320-A (“Case No. 20-653320”), a nine-count
indictment involving the murder of Tavon Powell (“Powell”). Efford was charged
with aggravated murder, an unclassified felony (Count 1); aggravated robbery, a
felony of the first degree (Count 2); aggravated burglary, a felony of the first degree
(Count 3); murder, an unclassified felony (Count 4); murder, an unclassified felony
(Count 5); felonious assault, a felony of the second degree (Count 6); and felonious
assault, a felony of the second degree (Count 7). The remaining two counts only
pertained to Harder. Each count held an associated one-year and three-year firearm
specification.
On August 23, 2021, Efford entered into a negotiated plea agreement.
Efford pleaded guilty as charged in Case No. 19-645865. In Case No. 20-653320,
Efford pleaded guilty to Count 1, as amended, to involuntary manslaughter, a felony
of the first degree and to the two associated firearm specifications. Efford also
pleaded guilty to Count 2, aggravated robbery. The state moved to dismiss the
associated firearm specifications and the remaining charges against Efford in the
indictment.
As part of the plea agreement, the parties agreed that the two charges
in Case No.20-653320 would not merge for sentencing. Additionally, Efford agreed
to cooperate in the prosecution of his two co-defendants. In return, the state would
recommend a sentence with a “floor” of 10 to 15 years. During the plea colloquy, the
trial court ensured that Efford understood that the court was not bound by the
sentencing recommendation.
Efford was sentenced on September 30, 2022. By that time, both he
and Johnson had testified at Harder’s trial. The state represented that Efford had
fulfilled the obligations under his plea agreement and asked the court to impose the
recommended sentence. The state also noted that the case would not have
progressed if Efford’s mother had not gone to the police and arranged for police to
locate and interview Efford. Several members of Efford’s family were present and
gave statements to the court. Efford’s attorney then spoke and noted that Efford did
not have a juvenile record, and had only received a citation for disorderly conduct
prior to the domestic violence indictment.
Before issuing its sentence, the trial court asked Efford if he was
wearing a GPS monitor when he participated in the aggravated robbery. Efford
admitted that he was wearing the GPS monitor assigned from the domestic violence
case. The trial court then noted that it had heard Efford testify at Harder’s trial. The
trial court found that Efford was the ringleader, not Harder. It was Efford who
kicked in Powell’s door in order to effectuate the robbery. The court noted that
Efford wanted to back out of the plea deal at the beginning of trial, although he did
testify. Additionally, the trial court found that Efford’s testimony was “significantly
inconsistent” with Johnson’s testimony and the known facts of the case.
The trial court sentenced Efford to 12 months on the domestic
violence charge with credit for time served. On the involuntary manslaughter charge
(Count 1), the trial court imposed a sentence of three years on the firearm
specification consecutive to 11 to 16 and one-half years on the involuntary
manslaughter charge. On the aggravated robbery charge, the trial court imposed a
sentence of six years to run consecutive to Count 1. The aggregate term was 20 years
to 25 and one-half years.
In support of consecutive sentences, the trial court found that Efford
committed the 2020 case while awaiting trial on the 2019 case. The trial court found
that a single term did not adequately reflect Efford’s conduct and the sentence was
necessary to punish the offender and protect the public and was not
disproportionate in a murder case.
The trial court’s subsequent journal entry of the conviction found that
Efford pleaded guilty to notice-of-prior-conviction and repeat-violent-offender
(“RVO”) specifications. Efford was neither charged with nor did he plead guilty to
any such specifications.
Efford appeals and assigns the following errors for our review.
Assignment of Error No. 1
The trial court committed plain error by imposing consecutive
sentences based upon factual findings that the record clearly and
convincingly does not support.
Assignment of Error No. 2
The trial court committed plain error by convicting Efford on
specifications for which he was not charged and did not enter a guilty
plea.
Assignment of Error No. 3
The trial court committed plain error by sentencing Efford pursuant to
the unconstitutional Reagan Tokes law.
For ease of analysis, we will address Efford’s assignments of error out
of order.
Convictions for RVO and Prior Conviction Specifications
In the second assignment of error, Efford argues that the trial court
erred when it included in its journal entry that Efford had pleaded and been found
guilty of RVO specifications and prior-conviction specifications. The state concedes
that this was an error. The record reflects that Efford’s codefendant Harder was the
only defendant indicted for RVO specifications and prior-conviction specifications.
Accordingly, Efford’s second assignment of error is sustained. The case is remanded
for the trial court to issue a nunc pro tunc journal entry correcting this error.
Reagan Tokes Sentence
In his third assignment of error, Efford argues that the trial court
committed plain error by sentencing him under the Reagan Tokes Law, S.B. 201.
Efford alleges that the law violates the constitutional rights to a jury trial and
procedural due process; and violates the separation-of-powers-doctrine.
The Ohio Supreme Court has recently addressed all of these issues
and found they lack merit. See State v. Hacker, Slip Opinion No. 2023-Ohio-2535.
Accordingly, the third assignment of error is overruled.
Imposition of Consecutive Sentences
Finally, in the first assignment of error, Efford argues that it was plain
error for the trial court to impose consecutive sentences as the record did not clearly
and convincingly support consecutive sentence findings. Specifically, Efford alleges
that the record did not support the findings that consecutive sentences were
necessary to protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of his conduct and
the danger he poses to the public.
The review of felony sentences is governed by R.C. 2953.08(G)(2).
State v. Watkins, 8th Dist. Cuyahoga No. 110355, 2022-Ohio-1231, ¶ 21, citing State
v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16. Pursuant to
R.C. 2953.08(G)(2), a reviewing court may increase, reduce, modify, or vacate and
remand a felony sentence if this court clearly and convincingly finds either that the
record does not support the sentencing court’s findings as prescribed under specific
statutes or the sentence is “otherwise contrary to law.” State v. Artis, 8th Dist.
Cuyahoga No. 111298, 2022-Ohio-3819 ¶ 11. It is well settled that a sentence that is
contrary to law is plain error and an appellate court may review it for plain error.
State v. Dowdell, 8th Dist. Cuyahoga No. 111026, 2022-Ohio-2956, ¶ 9 citing State
v. Whittenburg, 8th Dist. Cuyahoga No. 109700, 2022-Ohio-803, ¶ 6.
Generally, there is a presumption for concurrent sentences when a
person is convicted of multiple offenses, R.C. 2929.41(A). The law allows a court to
impose consecutive sentences only when certain conditions are met. Those
conditions are met when the trial court finds that “consecutive service is necessary
to protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public.” R.C. 2929.14(C)(4). In
addition to these findings, the court must also find any one of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
In making this determination, the trial court “must consider the
number of sentences it will impose consecutively along with the defendant’s
aggregate sentence that will result.” State v. Gwynne, Slip Opinion No. 2022-Ohio-
4607, ¶ 12. A reviewing court conducts a de novo review of the imposition of
consecutive sentences and may reverse or modify the sentence, including the
number of consecutive sentences, if the court “clearly and convincingly finds that
the record does not support the trial court’s findings.” Id.
When reviewing the sentence, the appellate court must first
determine whether the trial court made the required findings under
R.C. 2929.14(C). If the court failed to make the required findings, then the appellate
court must find the order of consecutive sentences was contrary to law and either
modify or vacate the sentence and remand. Id. at ¶ 25. If the court did make the
required findings, the appellate court must determine whether the record clearly
and convincingly supports those findings. Id.
In the instant case, the trial court made all the requisite findings,
finding that consecutive sentencing was necessary to punish the offender and
protect the public. The trial court also found that consecutive sentences were not
disproportionate “in a murder case.” Finally, the court noted that Efford committed
the offenses in Case No. 20-655320 while awaiting trial on Case No. 19-645865.
R.C. 2929.14(C)(4)(a). Therefore, we look to determine whether the findings are
clearly and convincingly supported by the record.
Clear and convincing proof is defined as
[t]he measure or degree of proof that will produce in the mind * * * a
firm belief or conviction as to the allegations sought to be established.
It is intermediate, being more than a mere preponderance, but not to
the extent of such certainty as required beyond a reasonable doubt as
in criminal cases. It does not mean clear and unequivocal. In re Estate
of Haynes, 25 Ohio St.3d 101, 103-104, 25 Ohio B. 150, 495 N.E.2d 23
(1986).
State v. Williams, 8th Dist. Cuyahoga No. 98934, 2013-Ohio-2201, ¶ 5.
During the hearing, the trial court discussed the conduct underlying
the offense. Specifically, the court noted that the evidence suggested that Efford was
the primary instigator of the offense, not Harder. The evidence supported, and
Efford admitted, that he was the one who kicked down Powell’s door. The trial court
also noted that Efford was wearing a court-ordered GPS ankle monitor at the time
of the offense. Not only was Efford unconcerned that he had a pending case in court,
but he was unconcerned that the trial court and or law enforcement could track his
location and connect him to the crime. Efford made the choice to conduct further
crimes under these circumstances. The court’s finding that a consecutive sentence
was necessary to prevent future crime and punish the offender is supported by the
record.
In his brief, Efford focuses significant attention on the trial court’s use
of the word murder in concluding that the sentence was not disproportionate to his
conduct. Efford argues that his plea to involuntary manslaughter removes the issue
of murder, and that there is no evidence that Efford committed murder because all
murder-related charges were dismissed. The trial court, however, does not solely
look at the convicted charge but at the conduct of the defendant. See R.C. 2929.11
and 2929.12. The record reflects that Johnson told Harder and Efford that the
victim had a large sum of money in his apartment. According to the victim’s
girlfriend, the victim brought the money home the same night he was killed. The
three then proceeded to the victim’s apartment to rob, and ultimately kill him.
Harder was found guilty of all counts including aggravated murder. A trial court
may consider “the entirety of a defendant’s actions in a particular case.” State v.
Diaz, 8th Dist. Cuyahoga No. 102582, 2015-Ohio-4382, ¶ 9. Given the foregoing,
the nature of the plea agreement does not mitigate Efford’s proven conduct. The
trial court’s findings were supported by the record.
Accordingly, the first assignment of error is overruled.
Judgment affirmed and case remanded to correct the sentencing
entry.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
EMANUELLA D. GROVES, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., CONCUR;
SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., CONCURRING:
I fully concur with the majority opinion on the second and third
assignments of error. On the first assignment of error, under which Efford
challenges the trial court’s imposition of consecutive sentences, I agree with the
majority that the trial court did not err in the imposition of consecutive sentences
and write to further address the issues raised.
At the sentencing hearing, the trial court initially explained why it was
not imposing the recommended sentence, which recommended the trial court “set
the floor at between ten and fifteen years.” The parties’ plea agreement required in
part that Efford cooperate in the state’s prosecution of his codefendants and testify
truthfully. Efford did provide testimony at the trial of a codefendant, with whom he
had a close relation, despite having concerns about potential consequences. The
state, having obtained a conviction against that codefendant, acknowledged that
there were some inconsistencies with Efford’s testimony, but believed Efford
fulfilled his obligation under the plea agreement. Understandably, the state does
not wish to deter similar plea agreements.
This case reveals the inherent problem of non-enforceable plea
agreements. There are often inconsistent results produced with such agreements
between different judges. A defendant like Efford makes a deal in an attempt to
minimize his exposure, while the state offers that deal to strengthen its case against
the codefendant. Such agreements are often reached with the consent of the victim
or the victim’s family. The prosecutor uses this leverage in an attempt to resolve
cases and reach some form of justice. The fate of the agreement, however, rests in
the balance of the particular judge handling the case. Different judges see such
agreements, and the weight given to testimony offered to secure the agreement,
differently.
Yet, none of this matters because the trial judge, in what amounts to
having the ultimate say, is not bound by any of the terms of the plea agreement. Had
Efford drawn a different judge on his arraignment day, his agreement may well have
been honored and his exposure shortened. This raises the question of whether such
nonbinding “agreements” should even be offered or considered. Yet, that is a
question for another day.
As it stands, the trial judge was not bound by the recommended
sentence, could consider whether the plea agreement was satisfied, and explained
why the court did not believe Efford had been forthcoming with testifying truthfully
and honestly. The trial court indicated that Efford was still better off having testified
under the plea agreement, as he otherwise would have been looking at a possible
sentence of life without parole.1 The trial court imposed an aggregate term of 20 to
25 and one-half years for the involuntary manslaughter and aggravated robbery
convictions.2
1 In Cuyahoga C.P. No. CR-20-653320-A, Efford was charged under seven counts
in the indictment, which included a charge of aggravated murder, but he pled guilty to
two amended charges of involuntary manslaughter and aggravated robbery, which the
parties agreed would not be merged, pursuant to the plea agreement.
2The trial court also sentenced Efford in the domestic-violence case, Cuyahoga
C.P. No. CR-19-645865-A, to 12 months with credit for time served.
The record further reflects that in imposing consecutive sentences,
the trial court made the requisite findings, which are discussed in the majority
opinion. Because Efford did not object to the imposition of consecutive sentences
at the sentencing hearing, he forfeited this issue, absent plain error. See State v.
Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840, 207 N.E.3d 677, ¶ 166, citing State
v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 152.
In reviewing a consecutive-sentence challenge, the appellate court
applies R.C. 2953.08(G)(2)’s clear-and-convincing standard. It is important to
reiterate that R.C. 2953.08(G)(2) is written in the negative and requires the court of
appeals to clearly and convincingly find that “the record does not support the
sentencing court’s findings” under R.C. 2929.14(C)(4). Support for the findings may
appear anywhere in the record. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453,
¶ 21 (8th Dist.). Pursuant to Gwynne, Slip Opinion No. 2022-Ohio-4607, upon a de
novo review and without any deference to the trial court’s consecutive sentence-
findings, we must have “a firm conviction or belief, after reviewing the entire record,
that the evidence does not support the specific findings made by the trial court to
impose consecutive sentences, which includes the number of consecutive terms and
the aggregate sentence that results.” Gwynne at ¶ 29.
The majority opinion reviews evidence in the record that shows
Efford was told the victim had a large sum of money in his apartment, Efford kicked
in the door of the victim’s apartment, a shooting occurred, and Efford was wearing
a GPS ankle monitor at the time and had a pending domestic-violence case.
Although Efford takes issue with the trial court’s reference to murder when he pled
guilty to involuntary manslaughter, I agree with the majority that the trial court
properly considered the “conduct” involved and the entirety of Efford’s actions in
this case.
Upon reviewing the record, I do not have the firm conviction or belief
that the record does not support the trial court’s consecutive-sentence findings.
Accordingly, the trial court did not commit error, let alone plain error, and the first
assignment of error should be overruled.
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"1",
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Law
9841144
[SEGMENT 1]
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 230163-U
Order filed July 19, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois,
Plaintiff-Appellant, )
) Appeal No. 3-23-0163
v. ) Circuit No. 22-CF-746
)
JAVONTA L. DAVIS, ) Honorable
) Kathy S. Bradshaw-Elliott,
Defendant-Appellee. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices Hettel and Davenport concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not err in granting defendant’s motion to suppress evidence.
Affirmed.
¶2 The State appeals the Kankakee County circuit court’s order granting a motion to suppress
evidence filed by defendant, Javonta L. Davis. The State contends that the search of defendant’s
person was a lawful protective pat down not designed to gather evidence. Alternatively, the State
argues that the evidence obtained following the illegal search was sufficiently attenuated to defeat
the exclusionary rule. We affirm. ¶3 I. BACKGROUND
¶4 On December 9, 2022, defendant was charged by information with two counts of unlawful
possession of a controlled substance with intent to deliver ([CITATION]), one count of unlawful possession of methamphetamine with intent to deliver ([CITATION]), two counts of unlawful possession of a controlled substance
([CITATION]), one count of unlawful possession of
methamphetamine ([CITATION]), and two counts of resisting a peace officer
([CITATION]).
¶5 On January 23, 2023, defendant indicated in open court his desire to pursue a motion to
suppress hearing and the matter was continued for defendant to file his motion. On January 27,
2023, the court ordered that defendant be allowed to view certain videos in anticipation of the
motion to suppress hearing, which the trial court set for February 14, 2023.
¶6 At the February 14, 2023, hearing, Officer Kyle Jensen was called by defendant to testify.
Body camera videos depicting the stop and subsequent interactions between Jensen and defendant
were provided to the court prior to the hearing. Jensen’s testimony and the body camera videos
disclosed the following: Jensen was alone when he initially pulled over defendant’s vehicle on
December 8, 2022, because the vehicle did not have a front plate. Sergeant Belcher arrived shortly
after the vehicle was stopped. Upon pulling over, defendant placed his arm outside the vehicle’s
window. Jensen’s first question to defendant was, “You got a gun in there?” Jensen testified that
he was “[j]ust joking around with [defendant].” Jensen proceeded to ask defendant whether he had
a driver’s license and insurance. Defendant explained that he had a photograph of his license, the
vehicle belonged to his cousin, and defendant was uncertain whether it was insured. Jensen and
defendant had previous interactions, including an interaction earlier that day, where Jensen stated
defendant was “mean mugging” him and gave him “the finger.”
¶7 Jensen stated that he did not need to see a photograph of defendant’s license, then asked
defendant why he had given him “the finger” earlier that day. Defendant explained he was joking
with Jensen. Jensen then asked defendant if he had anything in his vehicle. Defendant replied, “No,
man.” Jensen asked if he could look through the vehicle. Defendant stated the car was not his, and
he “would have kept going if [he] had something” in the vehicle. The conversation continued, with
Jensen asking again whether defendant had anything in the vehicle, and then asking two more
times whether defendant had “dope” on him. Defendant denied that there was anything in the
vehicle or on his person. Jensen then asked, “No pistols in here?” and defendant replied, “No sir,
I would have ran.”
¶8 Jensen then said, “So what’s the issue with me looking through it then real quick? I’ll get
you out of here, three fucking minutes, man,” to which defendant replied, “Because it ain’t even
that serious. I’ll get out though. I’m opening the door, man.” Defendant then opened the door of
the vehicle and stepped out. Jensen turned defendant’s body around and began conducting a pat
down of defendant. Jensen conducted the pat down “[f]or safety,” stating he was “looking for a
weapon.” Initially, defendant’s hands were on the hood of the vehicle. Jensen patted down
defendant’s clothing, including his jacket and sweatpants. Jensen also patted defendant’s “crotch
area” through his clothing and felt a “bulge.” Jensen believed the bulge to be narcotics, so he
placed defendant under arrest. Belcher approached to assist with the arrest, and Jensen told
defendant, “I can feel it, dude.”
¶9 As Jensen began placing defendant’s hands behind his back, defendant resisted, struggling
against the officers, causing defendant, Jensen, and Belcher to fall to the ground. While on the
ground, Jensen and Belcher gained control of defendant and placed him in handcuffs. Jensen
stated, “He’s got dope. It’s in his pants. In his underwear.” Jensen then searched defendant again,
including lifting up defendant’s shirt and patting down defendant’s legs without finding anything.
Defendant was brought to his feet after which he attempted to flee after being searched a second
time. Belcher managed to apprehend defendant before he escaped custody. Jensen placed
defendant in his squad car, and Belcher called for an ambulance based on defendant’s fall. While
defendant was seated in the squad car, Jensen said to Belcher, “He’s got it, like, tucked up in his,
under his nuts.”
¶ 10 Jensen conducted a search of defendant’s vehicle and did not locate any drugs or weapons.
Other officers arrived and asked Jensen, “Is it a gun[?]” to which Jensen replied, “No, it’s dope.”
Jensen then returned to search defendant again, saying, “Hey, I’m gonna get what’s out in your
pants, okay?” Defendant said, “Look,” and Jensen interrupted, saying “[L]et me get what we need
to get and then we can talk, okay?” When defendant did not respond, Jensen said, “Is it in your
underwear?” Defendant responded, “It wasn’t nothing in my underwear.” Jensen then stated,
“Okay. Well, I need to get what I need to get. You hear me? That’s fine. You ain’t got to admit to
me where it’s at, but I need to get it, okay?” Jensen then searched defendant again, this time looking
inside defendant’s pants and underwear by pulling defendant’s elastic waistband outward.
¶ 11 Jensen then began to suspect that defendant had ingested narcotics. Jensen reviewed the
squad car video recording of defendant sitting in the backseat, after which Jensen searched the
backseat and defendant, again finding no contraband. Law enforcement summoned an ambulance
while defendant sat in the rear of Jensen’s squad car for approximately 14 minutes. After an
ambulance arrived, defendant remained and was treated at the scene for another 26 minutes and
then taken to the hospital. Additional body camera footage documented Jensen at the hospital
cataloging various white substances. Jensen testified that he searched defendant’s jacket in the
hospital and felt a “bulge at the bottom in the middle of the back of the jacket.” Jensen then
removed what he determined to be drugs through holes in the jacket’s pocket and back.
¶ 12 Following the hearing, the trial court granted the motion to suppress, finding two
constitutional violations. The first occurred when Jensen impermissibly searched defendant’s
crotch area while conducting the initial pat down for officer safety. The second occurred when
Jensen searched defendant’s vehicle without consent or probable cause. The court observed that,
although there was probable cause to pull defendant over, the stop was “pretextual,” and defendant
did not consent to any of the searches. The court found that the drugs that were eventually found
at the hospital were the fruit of the poisonous tree and suppressed that evidence.
¶ 13 The State filed a motion to reconsider, maintaining that the search of the vehicle was
consensual but arguing that “consent to search the vehicle is not the issue in this case.” Rather, the
State argued that, during the pat down, Jensen felt something in defendant’s crotch area and
attempted to handcuff defendant, but defendant began to wrestle and struggle with Jensen. The
State further argued that “[i]t wasn’t until the defendant was placed under arrest for resisting arrest
and put into the back of the squad car that Deputy Jensen searched inside of the defendant’s
clothing for the contraband that Deputy Jensen felt during the pat down” and that the subject
narcotics were located on defendant’s person, not inside the vehicle. Accordingly, the State argued,
[SEGMENT 2]
“Even if this Honorable Court believes that the search of the vehicle was not consensual, the
narcotics found in the coat that the defendant was wearing when he was arrested for resisting arrest
should not be suppressed.” The court denied the State’s motion to reconsider, after which the State
filed a certificate of impairment and this timely appeal.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the State contends there were no fourth amendment violations and the trial court
erred when it granted defendant’s motion to suppress. In the alternative, the State maintains the
evidence discovered was sufficiently attenuated from any unconstitutional activity to avoid the
exclusionary rule. We apply a bifurcated standard of review to rulings on motions to suppress.
[CITATION] We defer to the trial court’s factual findings
unless they are against the manifest weight of the evidence. [CITATION]
(2008). Factual findings are only against the manifest weight “if the opposite conclusion is clearly
evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented.”
Id. We review the ultimate legal issue—whether suppression is warranted—de novo. [CITATION]
¶ 16 Both the United States and Illinois Constitutions protect individuals from unreasonable
searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Defendant does not
contest the propriety of the initial stop of his vehicle for the front plate violation; rather, at issue is
the constitutionality of a series of searches that occurred after the vehicle was properly stopped
and, more specifically, whether contraband ultimately recovered from defendant’s jacket in the
hospital was properly suppressed as fruit of the poisonous tree.
¶ 17 Considering first the propriety of Jensen’s pat-down search of defendant’s crotch area, we
note that the validity of an investigatory stop is a distinct and separate inquiry from whether a pat-
down search for weapons is valid. [CITATION] That an officer
has reason to stop a person does not automatically justify the further intrusion of a search for
weapons. Id. at 165. An officer may initiate such a search if he “reasonably suspects that he or
another is in danger of attack.” 725 ILCS 5/108-1.01 (West 2022); [CITATION] In such circumstances, an officer may “ ‘tak[e] steps to assure himself
that the person with whom he is dealing is not armed with a weapon that could unexpectedly and
fatally be used against him.’ ” [CITATION].
¶ 18 Assuming for the sake of analysis that Jensen was justified in conducting a pat-down search
for officer safety due to defendant placing his arm outside of the car at the initial stages of the stop
and his abrupt exiting of the vehicle without request, it nevertheless remains that the scope of such
that search must be narrowly tailored to actions reasonably likely to discover weapons that could
be used to harm the officer. [CITATION]. An officer may lawfully pat down a suspect’s
outer clothing and seize objects whose mass or contour make them readily identifiable as a weapon
or contraband. [CITATION]. A search that exceeds this scope and strays into evidence gathering is
constitutionally prohibited ([CITATION]), and the fruits of such a search will be
suppressed. [CITATION].
¶ 19 While it is true that individuals subject to protective pat downs may sometimes hide
weapons in their pants, the trial court found that the search in this case, beginning with the initial
pat down, was more intrusive than an ordinary search for weapons justified by officer safety
concerns. See [CITATION]. Further, the trial
court found that Jensen’s assertion that the pat down was conducted exclusively for officer safety
was belied where, prior to defendant’s exiting the vehicle, he had asked defendant about drugs
multiple times. Immediately after patting down defendant, Jensen told Belcher, “He’s got drugs.
It’s in his pants. In his underwear.”
¶ 20 Under these circumstances, we cannot say the trial court’s finding that Jensen was
searching for drugs and not weapons when he patted down defendant’s crotch area was against the
manifest weight of the evidence. A search for weapons must be limited to “an intrusion reasonably
designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police
officer.” [CITATION]. Here, the court found that Jensen’s pat down of defendant’s crotch
area exceeded that scope. Accordingly, the trial court’s determination that the pat down of
defendant’s crotch area violated defendant’s fourth amendment rights was not erroneous.
¶ 21 The State also contends that the trial court erred in determining that the search of
defendant’s vehicle likewise violated defendant’s fourth amendment rights. In support, the State
observes that a vehicle may be searched incident to arrest where “ ‘officers reasonably believe
evidence relevant to the crime of arrest may be found in the vehicle.’ ” [CITATION]. It was implausible, however, that evidence concerning no front plate or
resisting arrest would be located in the vehicle. Further, given the lack of probable cause for
defendant’s arrest for possession of narcotics prior to the discovery of narcotics at the hospital, it
was likewise unreasonable to believe evidence of narcotics would be located in the vehicle.
Additionally, defendant was handcuffed in Jensen’s squad car where he remained as Jensen left to
search defendant’s vehicle, otherwise precluding the search of his vehicle incident to arrest.
[CITATION]. Accordingly, we agree with the trial court’s assessment
that the vehicle search was also a fourth amendment violation.
¶ 22 Evidence obtained in violation of the fourth amendment is generally inadmissible under
the exclusionary rule. [CITATION]. Once a court determines there has
been a fourth amendment violation, the violation is deemed a “poisonous tree,” and evidence
obtained by exploiting that violation is subject to suppression as “fruit” of the poisonous tree. Id.
To the extent we conclude the circuit court’s findings of fact are not against the manifest weight
of the evidence, we further conclude that it did not err in suppressing the contraband located on
defendant’s person at the hospital as fruit of the poisonous tree.
¶ 23 In reaching this conclusion, we reject the State’s request to consider whether the evidence
seized was sufficiently attenuated from the constitutional violations to excuse its suppression. See
[CITATION] (courts may consider “whether the chain of
causation proceeding from the unlawful conduct has become so attenuated or has been interrupted
by some intervening circumstance so as to remove the ‘taint’ imposed upon that evidence by the
original illegality.”). The State acknowledges that it “never presented the argument of attenuation
below,” but notes that “forfeiture is a limitation on the parties and not the reviewing court.” See
[CITATION] (reviewing court may overlook the principles of
forfeiture when necessary to obtain a just result or maintain a sound body of precedent). However,
beyond noting the possibility that we might excuse its forfeiture, the State has not provided any
argument in support of doing so. See [CITATION] (the State
forfeited attenuation by not raising it in the circuit court after the court determined that defendant’s
arrest was unlawful).
¶ 24 III. CONCLUSION
¶ 25 The judgment of the circuit court of Kankakee County is affirmed.
¶ 26 Affirmed.
2023 IL App (1st) 211649-U
No. 1-21-1649
Order filed November 2, 2023
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 6246
)
JOSE MARTINEZ, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justices Hoffman and Martin concurred in the judgment.
ORDER
¶1 Held: The trial court erred in denying defendant’s motion to suppress evidence of a
firearm, where a police officer’s mere observation of a “bulge” in defendant’s
pocket did not support a reasonable, articulable suspicion that criminal activity was
afoot to justify a stop and search of defendant’s person. We reverse defendant’s
conviction of unlawful use or possession of a weapon by a felon and his sentence.
¶2 Following a bench trial, defendant Jose Martinez was found guilty of unlawful use or
possession of a weapon by a felon (UUWF) and sentenced to seven years in prison. On appeal,
defendant argues the trial court erred in denying his motion to suppress evidence of the firearm No. 1-21-1649
recovered from his person, where the arresting officer lacked the requisite reasonable, articulable
suspicion that criminal activity may be afoot to stop and search him. We agree with defendant and
[SEGMENT 3]
reverse his conviction and sentence.
¶3 Defendant was charged by indictment with one count of armed habitual criminal, two
counts of UUWF, and three counts of aggravated unlawful use of a weapon, premised on an
incident in Chicago on April 7, 2021. The State proceeded on one count of UUWF (720 ILCS
5/24-1.1(a) (West 2020)) and nol-prossed the remaining counts.
¶4 Prior to trial, defendant filed a motion requesting that the trial court suppress all evidence
recovered from him, in particular a firearm, because the arresting police officers lacked the legal
authority to arrest him, search him, and seize the firearm from his person. The trial court held a
combined hearing on defendant’s motion to suppress and a bench trial.
¶5 Chicago police officer Carreon testified that, at the time of the proceeding, he had been
working with the Chicago Police Department for about six years. 1 On April 7, 2021, at about 10:15
p.m., he and his partner Officer Smalec were on patrol in uniform in an unmarked vehicle near the
2500 block of South Christiana Avenue. Smalec was driving the vehicle southbound. From the
passenger’s seat, Carreon saw two men walking northbound on a “well-lit” sidewalk. Carreon’s
view was aided by his flashlight.
¶6 From “[m]aybe less than a car’s length away,” Carreon observed that one of the men,
identified in court as defendant, had a “large bulge” in his “pant pocket” causing the “right pocket
side of the jacket to be weighed down heavily.” Based on his observations, Carreon “exited the
The first names of Officer Carreon and his partner Officer Smalec do not appear in the transcript
of the trial proceedings.
No. 1-21-1649
vehicle and approached, conducted an investigatory stop, believing that [defendant] might be
concealing a firearm in that pocket.” Carreon testified that,
“upon approach, I asked about the – the heavy weighted object in [defendant’s] pocket.
He pointed at it and [sic] conducted a protective pat-down of that pocket. Once I -- once I
became aware that the object in the pocket resembled a firearm, was a heavy metal
object, at that point, he was detained.”
¶7 Carreon testified that he was equipped with a body-worn camera on the date in question.
The State, and subsequently the defense, published the footage from Carreon’s body-worn camera
in court. The footage was entered into evidence and is included in the record on appeal. We have
viewed the footage. There is no audio to the video recording until approximately the 0:20 second
timestamp mark.
¶8 In the body-worn camera footage, Carreon is seen exiting the police vehicle at about the
0:03 second timestamp mark. As Carreon is walking, he shines his flashlight on defendant and
another man, who are walking on a sidewalk at night. Defendant is wearing a black jacket, and his
right hand appears to be slightly raised near the right pocket of his jacket. The other man with
defendant is wearing a red hooded sweatshirt and raising his hands in the air as soon as he looks
in Carreon’s direction.
¶9 As Carreon quickly approaches the two men, defendant also begins to raise his hands to
just above waist-height and slowly turns toward Carreon so that a bulge in the right side of his
jacket can be seen. The right side is weighed down slightly below the left side of the jacket. At
about the 0:09 second timestamp mark, Carreon takes hold of defendant’s right hand with his left
hand and, at the 0:10 second timestamp mark, takes hold of the left side of defendant’s jacket and
No. 1-21-1649
opens it. At about the 0:17 second timestamp mark, Carreon takes hold of defendant’s left arm,
and his partner takes hold of defendant’s right arm. The officers walk defendant toward their
vehicle. At about the 0:19 second timestamp mark, the officers begin handcuffing defendant’s
hands behind his back as defendant is pressed against the police vehicle. The video footage has no
audio until defendant is handcuffed at approximately the 0:20 second timestamp mark, so it is not
clear whether any words were exchanged between Carreon and defendant prior to defendant being
handcuffed. At about the 0:31 second timestamp mark, Carreon removes a firearm from
defendant’s right jacket pocket, and the video clip ends.
¶ 10 After the video evidence was played, Carreon confirmed that he recovered the firearm from
defendant’s right side jacket pocket and stated that defendant was detained at that point. Carreon
testified that defendant was asked whether he had a firearm owners identification (FOID) card or
concealed carry license, and defendant relayed that he had a concealed carry license, but it may be
suspended. After running a name check at the scene, no FOID card or concealed carry license
“came up.” Defendant was then placed into custody. The State entered into evidence the firearm
recovered from defendant, as well as a magazine that was recovered from inside the firearm, and
the ammunition inside the magazine.
¶ 11 On cross-examination, Carreon testified that he was not aware of an outstanding search or
arrest warrant for defendant. When first seen, defendant did not have his hand in his pocket.
Carreon was shown a still image from his body-worn camera, and he confirmed that defendant’s
right hand was visible in the picture. Carreon confirmed that, while sitting in the vehicle, he noticed
the “extremely large” bulge in the right side pocket of defendant’s jacket but did not see the butt
of a firearm. As he approached defendant on foot, Carreon observed what he “believed” to be the
No. 1-21-1649
barrel of a firearm in defendant’s pocket, but did not see any metal. Defendant did not try to run
away or attempt to discard the firearm, and his arm was never outstretched toward Carreon or up
in the air above his shoulders.
¶ 12 Carreon testified that when he reached defendant, he conducted a patdown of that right side
pocket and felt what turned out to be a firearm. Carreon confirmed that defendant was not free to
leave once Carreon conducted the pat down, but stated defendant “was not detained when
[Carreon] was approaching him.” Carreon confirmed that he did not ask defendant if he had a
FOID card or concealed carry license until defendant was handcuffed and “detained” outside the
vehicle. Carreon denied that he searches “everybody with an extremely large bulge in their coat.”
¶ 13 In closing, defendant’s counsel argued that the officers lacked a reasonable suspicion to
approach and patdown defendant, and they lacked probable cause to arrest him. He asserted that
“at best” the officers stopped him on “a hunch,” and, “at worst,” the stop was “pretextual.”
Defendant argued Carreon “saw two Hispanic men walking on the street, and he immediately ***
did a pat-down.”
¶ 14 Defendant’s counsel recounted that while the officers were in a moving vehicle, Carreon
saw defendant wearing a dark jacket in the evening. Defendant did not run or “take any actions”
that made him a threat to the officers. Nonetheless, Carreon “jumped out of that car and ***
immediately beelined for [defendant].” Defendant further argued that the “imprint of a barrel”
could have looked similar to the rectangular imprint of a phone or stapler, and Carreon could not
have seen any imprint as defendant had his hand by his pocket, “if not in his pocket.” He further
asserted that the observation of a firearm was not itself evidence of a crime, and the officers
improperly arrested defendant first and then determined licensure later, which is no longer legal.
No. 1-21-1649
Defendant therefore asked that the court grant his motion to suppress or, alternatively, find him
not guilty.
¶ 15 The State argued that the court should deny defendant’s motion to suppress, because there
were “no statutory constitutional violations,” and find him guilty. The State asserted the trial court
had the “entire encounter” on video, so “this isn’t speculative, we’re not dealing with
hypotheticals, we’re not dealing with what if situations.” It argued that Carreon observed
defendant’s coat “was weighed down, not by a light object, not by a large object, but by a heavy
object.” The officers then “detained [defendant], removed the firearm and *** placed him into
custody after they conducted an investigation and it was found out that the Defendant did not have
a valid FOID or Concealed Carry license.”
¶ 16 The trial court denied defendant’s motion to suppress and found him guilty of UUWF. The
court noted Carreon’s testimony that he saw defendant “walking with a heavy object in his pocket.”
As Carreon approached, he observed “the outline of a barrel in that pocket” and then detained him.
The court found “[t]here certainly is enough for a Terry stop there.” The court then stated Carreon
“conducted a further investigation, and retrieved a weapon, and then *** asked [defendant]
whether he had a Concealed Carry.” Defendant responded he did, but “that was later found out to
be not true, and then [Carreon] placed him under arrest.” The court concluded that there was
[SEGMENT 4]
sufficient basis to initiate a Terry stop, and “that the further investigation led to probable cause.”
¶ 17 Defendant filed a motion to set aside the guilty finding or, in the alternative, for a new trial,
asserting that the trial court erred in denying his motion to suppress, and that the State failed to
prove him guilty beyond a reasonable doubt.
No. 1-21-1649
¶ 18 At a hearing on the motion, defendant reiterated his prior argument and added that Carreon
did not ask if defendant had a license to carry the firearm until after defendant was handcuffed by
the police vehicle. He asserted that the large bulge did not justify an investigatory stop because
“anything could create a large bulge in a coat,” and defendant was detained when Carreon “jumped
out of the car.” The State argued that the body-worn camera footage “clearly showed an L-shaped
object” weighing down defendant’s coat. It stated that the court had the opportunity to judge the
officers’ credibility and look at the evidence, and its findings should not be disturbed.
¶ 19 The trial court denied defendant’s motion. Noting defendant was eligible for Class X
sentencing, the court sentenced him to seven years in prison for UUWF.
¶ 20 On appeal, defendant argues the trial court erred in denying his motion to suppress the
firearm recovered from his person, where he was subjected to a detention and search that violated
the fourth amendment. He claims that Officer Carreon lacked any articulable basis to believe that
he had or was committing a criminal offense because walking on the street with a bulging pocket
was not a viable reason to stop or search him.
¶ 21 A defendant filing a motion to suppress evidence bears the burden of making a “prima
facie case that the evidence was obtained by an illegal search or seizure.” [CITATION], ¶ 22. When reviewing a trial court’s ruling on a motion to suppress evidence, we apply
a bifurcated standard of review. [CITATION]. Under that
standard, we review the trial court’s findings of historical fact for clear error, giving “great
deference” to the court’s factual findings and reversing them only if against the manifest weight
of evidence. Id. We review de novo the court’s ultimate legal determination on whether
suppression is warranted. Id.
No. 1-21-1649
¶ 22 The fourth amendment to the United States Constitution, and the Illinois Constitution,
guarantee the “right of individuals to be free from unreasonable searches and seizures.” [CITATION]
“Reasonableness under the fourth amendment generally requires a warrant supported by probable
cause.” [CITATION] However, “ ‘[w]hen faced with special law
enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, *** certain
general, or individual, circumstances may render a warrantless search or seizure reasonable.’ ” [CITATION] (quoting [CITATION])
¶ 23 “For purposes of the fourth amendment, an individual is seized when an officer by means
of physical force or show of authority, has in some way restrained the liberty of a citizen.” (Internal
quotation marks omitted.) [CITATION] “It is well settled that not every encounter
between the police and a private citizen results in a seizure.” Id. ¶ 544. Courts have categorized
police-citizen encounters into three tiers: (1) the arrest of a citizen, which must be supported by
probable cause; (2) a “temporary investigative seizure,” or Terry stop, conducted pursuant to [CITATION]; and (3) a consensual encounter, which involves “no coercion or
detention” and thus implicates no fourth amendment interests. [CITATION]
¶ 24 Under Terry, “ ‘where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot ***,’ the
officer may briefly stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming
or dispelling his suspicions.” [CITATION] (quoting [CITATION])
No. 1-21-1649
392 U.S. at 30). In order to properly conduct a Terry stop, “[t]he officer must have a reasonable,
articulable suspicion that criminal activity is afoot.” (Internal quotation marks omitted.) [CITATION], ¶ 9. Though this standard is “less demanding” than the probable cause
standard, “an officer’s suspicion must amount to more than an inchoate and unparticularized
suspicion or hunch of criminal activity.” (Internal quotation marks omitted.) Id.
¶ 25 The decision to make an investigatory stop is based on the totality of the circumstances.
[CITATION], ¶ 14. “The investigatory stop must be justified at its
inception, and the officer must be able to point to specific and articulable facts that, taken together
with rational inferences from those facts, reasonably warrant that intrusion.” [CITATION], ¶ 24 (citing [CITATION]). A finding of
reasonable suspicion “must be based on commonsense judgments and inferences about human
behavior, and due weight must be given to the reasonable inferences the officer is entitled to draw
from the facts in light of his experience.” [CITATION], ¶ 19.
¶ 26 We find that defendant was subjected to an unlawful stop under Terry principles. The initial
encounter was not, as the State urges, a “field interview” akin to a consensual encounter. Rather,
it was a seizure.
¶ 27 The video evidence reflects that Carreon exited the police vehicle while in his uniform
(0:03 second timestamp mark) and rapidly approached defendant and the other man while shining
his flashlight on them. Within 6 seconds after leaving his vehicle, Carreon had his hand on
defendant (0:09 second timestamp mark). “[A] person has been seized when, considering the
totality of the circumstances, a reasonable person would believe he is not free to leave.” [CITATION], ¶ 57. When someone is approached at night by a fast-moving, uniformed
No. 1-21-1649
police officer shining a light on them, the person would reasonably believe they are not free to
leave when faced with this show of authority. See [CITATION] (an individual is
“seized” for purposes of the fourth amendment when an officer, by means of physical force or
show of authority, has in some way restrained the liberty of a citizen).
¶ 28 Indeed, the video shows that defendant and the other man stop immediately as Carreon
approaches. The other man raises his hands into the air while defendant begins to raise his hands.
As such, a seizure occurred during this initial encounter, as defendant and the other man reasonably
would have believed they were not free to leave. Id. The conclusion that the initial encounter was
a seizure rather than consensual is reinforced by Carreon’s testimony that, based on his
observations of defendant walking at night with a large bulge in his pocket, Carreon “exited the
vehicle and approached, conducted an investigatory stop.” (Emphasis added.)
¶ 29 We thus turn to whether that seizure was reasonable. We find that it was not.
¶ 30 In [CITATION], our supreme court recently held that, where police
officers saw the defendant running in the rain “holding the front of his sweatshirt,” which had a
“large bulge,” the officers lacked reasonable suspicion to stop and frisk the defendant to “ ‘see
what was the bulge.’ ” Id. ¶¶ 37-40. The court noted that, based on the testifying officer’s
testimony, the officers were not responding to a particular report of crime in the area when they
happened upon the defendant, and neither officer stated that the neighborhood was a high-crime
area. Id. ¶ 39. Further, the defendant had been running from the first moment the officers saw him,
i.e., his continued running could not be seen as unprovoked flight from the officers. Id. Lastly, the
testifying officer “did not testify that defendant's conduct conformed with his knowledge of
- 10 - No. 1-21-1649
criminal activity. He simply wanted to know why defendant was running and what item caused a
bulge in defendant's pocket.” Id.
¶ 31 There was even less evidence supporting reasonable suspicion in the case at bar. The basis
for Officer Carreon’s seizure of defendant was that he saw a large bulge in defendant’s coat pocket
that weighed his coat down slightly as defendant and another man walked down a well-lit sidewalk
at about 10:15 p.m. This was the sole reason that the uniformed Carreon rapidly approached the
men and shone his flashlight on them. The men were not walking fast, and there was no testimony
that the officers were in a high crime area or responding to the report of a crime. The video shows
that, within 6 seconds of exiting the vehicle and approaching defendant by the sidewalk, Carreon
had already placed his hand on defendant.
¶ 32 Carreon offered no observations to support a reasonable, articulable suspicion that criminal
activity was afoot to justify the initial seizure of defendant. See [CITATION], ¶ 31 (“There is nothing criminally suspicious about walking down the street with one’s
hands in one’s pockets,” and “[p]utting something in one’s pockets *** is not a hallmark of
criminal activity”). For example, Carreon did not offer testimony that defendant had engaged in
any unusual behavior or furtive movements from which it was reasonable to infer that defendant
[SEGMENT 5]
unlawfully possessed whatever was in his pocket or that he was planning a crime. See [CITATION], ¶¶ 45-46. Moreover, as this court has noted, even had Carreon
suspected that the bulge in defendant’s pocket was a firearm, “police cannot simply assume a
person who possesses a firearm outside the home is involved in criminal activity.” [CITATION], ¶ 40. Therefore, given the absence of any reasonable,
articulable suspicion that criminal activity was afoot, defendant was unlawfully stopped upon his
- 11 - No. 1-21-1649
initial encounter with Carreon. See [CITATION]; see also [CITATION] (officer lacked reasonable suspicion where the defendant only
walked away from the officer with his hands in his pockets).
¶ 33 The State argues that the “consensual encounter evolved into a Terry stop when Officer
Carreon observed the imprint of the barrel of a firearm in defendant’s pocket,” but fails to explain
how the mere observation of defendant with a bulge in his pocket supported a reasonable,
articulable suspicion that criminal activity was afoot, in the first place. Accordingly, the stop of
defendant was unlawful under Terry given the absence of a reasonable, articulable suspicion that
criminal activity was afoot.
¶ 34 The State argues that Carreon was justified in conducting a protective patdown of
defendant in order to assure the officers’ safety, as Carreon believed that defendant was carrying
a firearm. It is not clear from the record when Carreon believed the bulge in defendant’s pocket
resembled a firearm, as Carreon’s testimony on the subject changed multiple times. On direct
examination, he testified that he patted defendant down and, once he “became aware that the object
in the pocket resembled a firearm,” detained defendant. (Emphasis added.) At yet another point,
he testified that he initially exited his vehicle because, based on the bulge, defendant “might be”
concealing a firearm. On cross-examination, he stated that, as he approached defendant on foot,
he saw the bulge and “believed” it resembled a firearm. Ultimately, the trial court found that
Carreon believed defendant possessed a firearm at the time he approached defendant and
subsequently performed a patdown. See [CITATION] (in reviewing the court’s
findings at a suppression hearing, this court must give “great deference” to the trial court’s
findings). Indeed, after performing a valid stop, an officer is justified in performing a protective
- 12 - No. 1-21-1649
patdown where the officer reasonably believes the defendant is armed and dangerous. See [CITATION],
¶ 19 (“a protective patdown of a properly detained citizen for possible
weapons” conducted after a stop has been initiated is justified where the officer had “a reasonable
belief that the defendant was armed and dangerous”). However, “the right to perform a protective
search presupposes the right to make the stop,” and “[t]he police may only perform a protective
search if they are entitled to stop the person in the first place.” [CITATION],
¶ 17.
¶ 35 In this case, because Carreon lacked a reasonable, articulable suspicion that criminal
activity was afoot to lawfully seize defendant, he also could not have lawfully performed a
protective patdown pursuant to Terry. See [CITATION], (“In
order for a frisk to be constitutionally reasonable, (1) the stop must be proper, (2) the officer must
have reason to know that the defendant is armed and dangerous, and (3) the scope of the search
must be strictly limited to a search for weapons.”). Moreover, the subsequent patdown and
recovery of the firearm could not serve as a basis to justify the initial encounter. See [CITATION], (justification for a search under Terry is for protection and
“not to gather evidence”). Accordingly, the ensuing patdown of defendant exceeded the lawful
bounds of Terry. And in this case as in Lozano, where the improper stop and search took place “in
moments,” there were no intervening circumstances which removed the taint from the original
illegality. [CITATION], ¶ 46. The recovered firearm was subject to suppression as
the ”fruit of the poisonous tree.” Id.
¶ 36 We therefore conclude the trial court erred in denying defendant’s motion to suppress the
firearm recovered from his person following an unlawful stop and patdown under Terry. Because
- 13 - No. 1-21-1649
the State cannot prevail on remand without the suppressed evidence, we reverse defendant’s
conviction and sentence.” [CITATION] ¶¶ 47-49 (reversing the defendant’s convictions outright where the
trial court erred in denying the defendant’s motion to suppress evidence).
¶ 37 For the foregoing reasons, we reverse defendant’s conviction and sentence.
¶ 38 Reversed.
- 14 -
```plaintext
IL App (1st) 232064-U
No. 1-23-2064B
Filed February 20, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
CR 8296-01
)
RONDELL COLEMAN ) The Honorable
) Thomas J. Byrne,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Justice Hoffman concurred in the judgment.
Justice Ocasio dissented.
ORDER
¶1 Held: The trial court’s finding that no conditions of pretrial release could mitigate the
threat the defendant posed to the community was not against the manifest weight
of the evidence.
¶2 Rondell Coleman appeals the circuit court’s order denying his “Motion to Grant Pretrial
Release with Conditions.” Specifically, he argues the circuit court erred in finding that no
conditions of pretrial release could mitigate the threat he posed to the community. For the following
reasons, we affirm.
``` No. 1-23-2064B
¶3 Coleman was charged with unlawful use of a weapon (UUW) in 2022 stemming from an
incident in which he was alleged to have illegally possessed a handgun with an affixed laser sight.
After pleading guilty, Coleman was placed in the First Time Weapon Offense Program (Program)
(730 ILCS 5/5-6-3.6 (West 2022)) for a period of two years. Pursuant to the Program, the circuit
court deferred further proceedings pending either completion of the Program or the filing of a
petition alleging violation of a term or condition of the Program. See id. § 5-6-3.6(c).
¶4 In July 2023, Coleman was arrested in connection with a robbery that occurred on April 1,
2023. He appeared before the circuit court on July 27, 2023. At that time, the State filed a petition
alleging that Coleman violated the conditions of the Program by committing additional felony
offenses. The court ordered Coleman detained. 1
¶5 The next month, Coleman was charged in a separate case (no. 23 CR 9236) with robbery,
theft, aggravated battery, and unlawful restraint, stemming from the April 1 incident. The circuit
court set a monetary bail condition requiring the posting of a $50,000 bond. 2
¶6 Subsequently, on October 18, 2023, Coleman filed a “Motion to Grant Pretrial Release with
Conditions.” He appeared before the circuit court the same day. Through counsel, Coleman
indicated that he was not challenging the $50,000 bond condition in his new case but was only
seeking relief from the no-bail order in his UUW case. In the written motion and oral presentation,
defense counsel contended that the Pretrial Fairness Act 3 (PFA) (P.A. 101-652, § 10-255, eff. Jan.
1, 2023) (amending article 110 of the Code of Criminal Procedure of 1963), which became
effective on September 18, 2023,4 applied to Coleman’s UUW case. Therefore, counsel argued,
A report of this proceeding is not in the record before us.
A report of this proceeding is not in the record before us.
Pretrial Fairness Act is an unofficial title but the legislation is commonly referred to by this name.
[CITATION]
See [CITATION]
No. 1-23-2064B
the court was required to consider releasing Coleman from custody with appropriate conditions
pending a hearing on or other disposition of the pending petition. Alternatively, the defense
submitted that even if the PFA did not apply, the court retained discretion to release Coleman on
the pending petition and the considerations set forth in the PFA were relevant to the court’s
determination.
¶7 In accord with the PFA, Coleman argued that the State could not demonstrate that he “poses
[SEGMENT 6]
a real and present threat to the safety of any person or persons or to the community.” See [CITATION]. To support that Coleman did not pose a “real and present threat,”
defense counsel noted that Coleman, age 19, actively participates with a neighborhood religious
ministry known as Precious Blood Ministry of Reconciliation (PBMR), which is dedicated to
restorative justice. Counsel further noted that Coleman helps care for his diabetic mother and
maintains strong familial and community relationships despite hardships, including poverty, losing
his father at a young age, and losing close friends to violence. In addition, Coleman is a high school
student with good attendance and no disciplinary record. Further, the offenses charged in
Coleman’s new case did not allege that a firearm or other weapon was involved.
¶8 Even if Coleman were found to pose a threat, counsel argued, the State cannot prove that
“no condition or combination of conditions [of release] can mitigate” that threat. See [CITATION]. His motion asserted that, in addition to conditions the court could impose, PBMR, his
legal team, and his family have formulated a “strong release plan that will provide structure and
support.” The plan would “ ‘provide more intense oversight’ and ‘double down on structuring
[Coleman’s] days.’ ” Conditions such as a curfew and requirements to attend school, programming,
and therapy would fill days from morning to night. Coleman attached letters from six individuals
associated with PBMR and a school counselor expressing their positive experiences with and
No. 1-23-2064B
assessments of Coleman as well as their commitment to supporting him if he is released from
custody. He also attached a six-page report compiled by Linsday Perlmutter, a licensed clinical
social worker associated with a University of Loyola Chicago Law School clinic. Perlmutter’s
report gives a comprehensive account of Coleman’s background, his circumstances before his July
arrest, and programming he participated in while held in the Cook County jail. She further
outlines a “Release Plan” and recommends these conditions as “the best intervention” for
Coleman. In addition, Coleman attached certificates and transcripts indicating the programming
he completed while incarcerated. Based on the exhibits supporting his motion, Coleman argued
that the proposed release plan would mitigate any safety threat the court might find him to pose.
¶9 The State argued that the PFA did not apply to the pending petition in the UUW case. The
State agreed, however, that the court retained discretion to release him but argued it should exercise
its discretion to continue detaining him. Further, the State indicated that it would have filed a
petition to detain Coleman if he had requested to be released in his new case. In response to the
court’s question, the State indicated it would file a petition to detain Coleman in the UUW case if
the PFA were to apply.
¶ 10 Nonetheless, the State argued that the facts of the new case demonstrated that Coleman
posed a danger to the community and no condition or set of conditions could “guarantee the safety
of any individual or the community.” According to the State’s proffer, Coleman went to a car wash
and attacked an employee. He repeatedly punched and kicked the 59-year-old man while
demanding he hand over money. The victim had collected approximately $2200 in rent payments
earlier that day, mostly in $100 bills. A co-worker at the car wash had contacted Coleman to inform
him that the victim possessed a large amount of cash. After the beating, Coleman stole the victim’s
wallet and fled. Less than two hours later, Coleman posted an image of himself on social media
No. 1-23-2064B
holding $100 bills along with a caption referring to the robbery. The victim sustained serious
injuries and was admitted to the hospital. When police officers arrived at Coleman’s home on
May 2 to arrest him, Coleman locked the door and refused their commands. 5 Coleman dropped his
cellphone during the encounter, which police recovered. A search of the phone revealed
communications between Coleman and the victim’s co-worker preceding the robbery.
¶ 11 The State noted that the Program afforded incentive to comply with its conditions,
including to not commit additional offenses. Had he successfully completed the Program, Coleman
would have avoided a conviction. See [CITATION] (providing that “[u]pon
fulfillment of the terms and conditions of the Program, the court shall discharge the person and
dismiss the proceedings against the person.”). Additionally, the State noted that the significant
community support Coleman relies on was already in place before and during the time of the
robbery. Thus, the State submitted that no conditions of release could mitigate the threat Coleman
poses to the safety of the community.
¶ 12 Defense counsel responded that Coleman would be subject to more stringent conditions if
released than those he was under at the time of the robbery. He further noted that the PFA
contemplates that detention only be ordered as a last resort when no condition or combination of
conditions can mitigate any threat the court might find that Coleman poses. Counsel submitted that
the court need not resort to ordering Coleman detained since adequate conditions exist to mitigate
the threat he posed.
¶ 13 In ruling on Coleman’s motion, the court noted that when Coleman was placed in the
Program pursuant to his guilty plea agreement, the State agreed to forgo a UUW conviction and a
The State’s proffer included that Coleman’s “probation officer” instructed him by phone to
surrender. As we will explain later, the Program is not probation. It appears, however, that the Cook County
Circuit Court’s probation department administers the Program.
No. 1-23-2064B
potential extended sentencing term based on Coleman’s possession of a laser sight. The court
observed that the many people supporting him were doing so in 2022 when he pled guilty in the
UUW case and in 2023—when Coleman was alleged to have conspired with the victim’s
co-worker to commit a “vicious attack” on the 59-year-old man. The court continued:
“Even looking at this case with the Pretrial Fairness Act applying to the probation
case, it is my judgment that this individual does pose a serious threat to the safety of the
community, not just the 59-year-old man *** but any person that presents themselves as
an easy target for the defendant.
It’s my judgment also that there are no conditions in light of his choices following
the weapons case, in light of all he had by way of support of those people here today and
his support system at the time I explained to him what the first-time weapons offender
would mean for him if he took advantage of it, if he took advantage of the structure that
was in place.
It’s clear to the Court that there are no conditions short of detention that would
protect society.”
¶ 14 Coleman filed a timely notice of appeal on October 30, 2023, pursuant to [CITATION]. His notice of appeal indicated two grounds for relief. First,
Coleman argued the State failed to prove he poses a real and present threat to the safety of any
person or persons or the community. Specifically, he contends the State failed to show that his
criminal or social history tends to indicate a “ ‘violent, abusive or assaultive nature’ ” and he
presented contrary evidence demonstrating a “caring and kind nature.” Second, Coleman asserted
that the State failed to prove that no conditions or combination of conditions can mitigate any
threat he poses where he presented “strong evidence of the support structure he would have if
No. 1-23-2064B
released” along with “stringent conditions” the court could impose. For relief, Coleman requested
that this court either order him released with conditions or remand the matter to the circuit court
to order him released with the “ ‘least restrictive conditions.’ ”
¶ 15 Subsequently, Coleman filed a supporting memorandum. See [CITATION] (providing
for the filing of a memorandum in lieu of an appellate brief). The memorandum argued that (1)
defendants accused of violating the conditions of the Program, like Coleman, are subject to the
PFA pending resolution of a filed petition and (2) the circuit court’s finding that the proposed
release plan could not mitigate any threat he posed to the community is against the manifest weight
of the evidence. The memorandum offers no argument challenging the circuit court’s finding that
Coleman poses a real and present threat to the safety of any person or persons or the community.
The State did not file a responsive memorandum.
¶ 16 To argue that the PFA applies in his circumstances, Coleman relies on section 5-6-4(b) of
the Unified Code of Corrections (Unified Code), which provides:
“[t]he court shall admit the offender to pretrial release pending the hearing unless the
alleged violation is itself a criminal offense in which case the offender shall be admitted to
pretrial release on such terms as are provided in the Code of Criminal Procedure of 1963,
as amended.” 730 ILCS 5/5-6-4(b) (West 2022).
Section 5-6-4, however, applies to violations of probation, conditional discharge, supervision, or
county impact incarceration. See id. § 5-6-4(a). Placement in the First Time Weapon Offense
Program does not qualify as any of those four dispositions. Coleman, the State, and the trial court
[SEGMENT 7]
all referred to placement in the Program as probation. This is inaccurate. “Probation” means “a
sentence or disposition of conditional and revocable release under the supervision of a probation
officer.” 730 ILCS 5/5-1-18 (West 2022). Probation is a sentence imposed following a conviction.
No. 1-23-2064B
See id. § 5-1-19 (defining “Sentence” as “the disposition imposed by the court on a convicted
defendant.”). The Program is not a form of probation since it is not a sentence imposed following
an entry of a judgment of conviction. See id. § 5-1-5 (defining “Conviction” as “a judgment of
conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an
offense”). Rather, the Program is a form of diversion. See [CITATION] (contemplating
“the creation of diversion programs for non-violent offenders”). “[D]iversion programs are
alternative procedures to the traditional process of prosecuting criminal defendants and are
intended to augment the criminal justice system where prosecution would be counterproductive,
ineffective, or unwarranted.” Debra T. Landis, Annot., Pretrial diversion: statute or court rule
authorizing suspension or dismissal of criminal prosecution on defendant's consent to noncriminal
alternative, 4 A.L.R. 4th 147, § 2(b) (1981). The Program provides that upon an eligible
defendant’s guilty plea to UUW, “the court, with the consent of the defendant and State’s Attorney,
may, without entering a judgment, sentence the defendant to complete the First Time Weapon
Offense Program.” [CITATION]. A defendant may be placed in the Program for a period
of 6 to 24 months. Id. § 5-6-3.6(d). After placement in the Program, the court defers further
proceedings until either the conclusion of the period or the filing of a petition alleging a violation
of a term or condition of the Program. Id. If the defendant has violated a term or condition, the
court may enter judgment on its original finding of guilt and sentence the defendant as provided
by law for UUW. Id. If the defendant fulfills the Program’s terms and conditions, the court must
discharge them and dismiss the proceedings. Id.
¶ 17 Nevertheless, we believe the PFA applies to Coleman’s situation. Section 110-2 of the Code
of Criminal Procedure of 1963 provides that “[a]ll persons charged with an offense shall be eligible
for pretrial release before conviction.” (Emphasis added.) [CITATION]. As
No. 1-23-2064B
we noted, a defendant placed in the Program is not convicted because no judgment has been
entered. Such a defendant will only have a UUW conviction entered if the defendant is later found
to have violated the terms or conditions of the Program. As we noted, upon a defendant’s placement
in the Program, their UUW case is essentially continued until either the conclusion of the period
or the filing of a petition alleging a violation. Since Coleman has been charged with an offense and
has not been convicted, he is among the “all persons” eligible for pretrial release as contemplated
in section 110-2, which is to be liberally construed to effectuate the purposes of the PFA. 725 ILCS
/110-2(e) (West 2022).
¶ 18 The PFA’s applicability is only a threshold finding in our disposition of this appeal. Its
applicability also means pretrial release can be denied pursuant to section 110-6.1 (id. § 110-6.1).
Id. § 110-2(a). The State made a proffer and presented argument in accord with section 110-6.1,
despite taking the position the PFA did not apply, and the court applied that section’s standards in
ruling on Coleman’s motion.
¶ 19 Coleman’s appeal focuses on only one of the findings required to deny pretrial release—
that no conditions of release can mitigate the threat to the safety of the community. See
id. § 110-6.1(e)(3). Thus, we confine our analysis to this issue.
¶ 20 Coleman argues that the circuit court’s finding that the proposed release plan could not
mitigate any threat he posed to the community is against the manifest weight of the evidence. We
agree that manifest weight of the evidence is the appropriate standard. The trial court’s
determination as to whether less restrictive conditions can mitigate the threat a defendant poses to
a person or the community involves a factual finding. Generally, we will reject the court’s factual
findings only if against the manifest weight of the evidence. [CITATION], ¶ 29. “A finding is against the manifest weight of the evidence where the opposite conclusion is
No. 1-23-2064B
clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence
presented.” (Internal quotation marks omitted.) [CITATION]. We
recognize that other panels of this court have determined this finding should be reviewed under an
abuse of discretion standard. See, e.g., [CITATION]. Those
decisions may have conflated factual findings with the trial court’s ultimate decision regarding
detention or conditions of release. An abuse of discretion standard properly applies to the latter,
but not the former. See [CITATION] (applying “twofold”
review: the manifest weight standard for the trial court’s factual findings and abuse of discretion
to the ultimate determination regarding pretrial release). To be sure, a court abuses its discretion
when its decision relies on a factual finding that is against the manifest weight of the evidence.
[CITATION] (“an abuse of discretion occurs where the trial court’s
decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree
with it.”). We agree that we do not review the evidence anew ([CITATION]), the trial court’s determination “involves the trial judge’s reasoning and opinion” ([CITATION]), and this court is not in a superior position to weigh the factors
and make the required individualized decisions (id. ¶ 67). Yet, we believe the manifest weight
standard affords the appropriate level of deference to the trial court. In instances where it is not
clearly evident whether less restrictive conditions can mitigate the threat a defendant poses to a
person or the community, we will not substitute our judgment for the trial court’s. But, to provide
meaningful review, we should reverse when the opposite conclusion is clearly evident.
¶ 21 Here, Coleman argues the circuit court erred in determining that less restrictive measures
could not mitigate the risk he posed. He notes that the court, in so finding, pointed to the fact that
No. 1-23-2064B
his support structure was in place at the time of the robbery. Coleman contends his motion
proposed additional conditions and measures beyond the support structure already in place at the
time he was charged with the new crime. He presented a detailed “strong release plan” that would
“double down on structuring [his] days.” Family and PBMR personnel would “hold him
accountable every single day to be where he was supposed to be.” Along with a curfew and
electronic monitoring, Coleman would present “a very low risk of recidivism” under his proposed
release plan. According to Coleman, GPS location monitoring would provide a strong deterrent to
commit robberies “not by ensuring police could respond before or during a robbery, but by making
it clear to Coleman that they would be able to conclusively prove he performed them after the
fact.” (Emphasis in original). Thus, the “easy targets” that concerned the court would not exist.
Coleman further argues that the State’s proffer showed Coleman to be “a person who had not
seriously considered the possibility of getting caught.” A GPS monitor, however, would be a
“constant reminder” that police know where he is and consequences will follow if he commits a
crime.
¶ 22 Coleman relies on the fact that he put forth a release plan as an available alternative to
detention. But merely suggesting an alternative to detention does not necessarily mean that
alternative is sufficient to mitigate a defendant’s safety threat. Nor does the mere possibility of an
alternative make the court’s decision to order detention error. Although the proposed release plan
may be more stringent than the conditions Coleman was under when the robbery occurred, the trial
court could reasonably find that even more stringent conditions were still insufficient to mitigate
the threat he poses. Thus, we are unpersuaded that the trial court’s finding was against the manifest
weight of the evidence.
No. 1-23-2064B
¶ 23 Additionally, the trial court did not solely rely on the fact that the same support structure
was in place when the robbery occurred in finding less restrictive conditions could not mitigate
the safety threat Coleman poses. It also noted the nature and circumstances of the robbery,
Coleman’s criminal history, and that Coleman was a participant in the Program at the time. The
PFA instructs trial judges to take these factors into account. See [CITATION].
¶ 24 Last, Coleman’s memorandum asserts he is “a person who had not seriously considered the
possibility of getting caught” and a GPS monitor will remind him of consequences for committing
[SEGMENT 8]
a crime. Coleman did not make this exact argument before the trial court. Nonetheless, the court’s
remarks indicate that it believed his UUW case and placement in the Program were sufficient to
impress upon Coleman that he could face consequences for committing new crimes. Thus, the
court could reasonably find that the option to release Coleman with GPS monitoring would not
mitigate the threat he poses. In addition, the fact that Coleman posted an image of himself holding
evidence of the robbery with a caption referring to it on social media weighs against believing that
the risk of “getting caught” is an adequate deterrent.
¶ 25 For these reasons, we affirm the judgment of the trial court denying Coleman’s motion for
pretrial release.
¶ 26 Affirmed.
¶ 27 JUSTICE OCASIO, dissenting:
¶ 28 The State accused Rondell Coleman of violating the terms of his First Time Weapon
Offender Program ([CITATION]) by committing a robbery, and the trial court ordered him detained until it resolves that accusation. The majority reviews that decision to detain
by the manifest weight of the evidence. For the reasons recently and persuasively articulated by
No. 1-23-2064B
Justice David Ellis, I believe that, except for findings of historical fact, detention orders should be
reviewed de novo. See [CITATION] Under that standard, I would hold that the State had failed to carry its burden of
proving by clear and convincing evidence that the tightly structured release plan proposed by
Coleman, in combination with verification through GPS monitoring, was not adequate to mitigate
any threat of safety that Coleman might present to the community. Accordingly, I respectfully
dissent.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
[CITATION]
Order filed January 16, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-22-0456
v. ) Circuit No. 21-CM-975
)
BRANDON L. TATUM, ) Honorable
) Chrystel L. Gavlin,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Peterson and Davenport concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The State presented insufficient evidence to convict the defendant of resisting a
peace officer.
¶2 The defendant, Brandon L. Tatum, appeals his conviction of resisting a peace officer,
arguing that the evidence was insufficient to find him guilty beyond a reasonable doubt.
¶3 I. BACKGROUND ¶4 The State charged the defendant by information with resisting a peace officer (720 ILCS
5/31-1(a), (a-5) (West 2020)) in that he knowingly resisted “a peace officer engaged in the
execution of his official duties” when the defendant “pulled his arm away during handcuffing.”
The matter proceeded to a jury trial.
¶5 Officer Noe Mozo testified that on May 11, 2021, he was being field trained by Officer
Antwane Windmon for the Metra Commuter Agency while they patrolled the Metra stations.
General patrol duties included checking for “property damage, people sleeping inside the shelters,
and just anything that can be considered foul play.” At approximately 2 a.m., Mozo noticed a man
sleeping on a bench at the Joliet station while on his way to another station. Mozo did not stop at
that time. Approximately 30 or 40 minutes later, Mozo returned and observed “the same individual
sleeping on the same bench in the same form.” The defendant was lying on a bench with a blanket
covering his feet to his neck. When Mozo inquired why the defendant was at the station, the
defendant responded that he did not “have to tell” Mozo anything. The defendant refused to
provide his identification after multiple requests. Mozo also requested several times that the
defendant show his hands, which the defendant refused. Mozo explained that whether he could
“see a person’s hands” is a matter of officer safety. Based on the defendant’s “non-compliance,”
the officers went “hands on” and “plac[ed]” the defendant on the ground. Mozo was unable to gain
control of the defendant’s left arm, which was “tucked *** under [the defendant’s] chest,” and the
defendant was “very tense” and “kept pulling away.” Eventually, Windmon forced the defendant’s
compliance by using a taser.
¶6 On cross-examination, Mozo indicated that he could not identify the defendant as the
person lying on the bench when he first passed the station. Mozo testified that the train station was
a known location for loitering and trespassing. However, the station did not have any no trespass
signs or notices, the officers gave no verbal orders to the defendant to vacate the premises, and
they had not received any complaints about the defendant trespassing. Mozo explained that “[t]he
whole point of *** making contact was to gain experience seeing that I was a relatively new
officer, and the intention was to *** inform [the defendant] that he couldn’t be at the station.”
Mozo acknowledged that potential patrons must be on the platform to board the train. Counsel
asked if Mozo had “any reason to believe that there was a weapon underneath” the defendant’s
blanket. Mozo stated, “[w]e asked him to see his hands. Normally people that aren’t hiding
anything or don’t have anything usually show me their hands.” Mozo also stated that “the way that
[the defendant] was conducting himself *** alerted [Mozo] and alerted *** Windmon that [the
defendant’s] hands were underneath the blanket.” Following a search of the defendant and his
items, the officers did not locate any weapons.
¶7 Windmon testified that he approached the defendant for a trespassing investigation because
the station was closed and the trains were not running. Upon contact, the officers asked the
defendant to sit up and show his hands for officer safety and to “make sure he didn’t have any
weapons.” Windmon explained that the officers
“didn’t know what was under the [blanket]. [The defendant] could have had a
weapon, a gun. It could have been anything. So just to make sure he didn’t have
anything, we wanted to see his hands, *** have him sit up and we could have a full
view of his body.”
The defendant refused after multiple requests. Windmon described the defendant as “very
hostile[,]” “avoiding questions, cursing,” and “fully uncooperative.” Following these refusals to
cooperate, the officers detained the defendant in what Windmon described as a “Terry stop.” After
making physical contact, the defendant continued to refuse to comply when asked to place his arms
behind his back. Following Windmon’s warnings, he used a taser to “gain control of the
defendant’s arms.”
¶8 The State entered Windmon’s body camera footage of the incident into evidence. The video
showed the defendant instantly informing the officers that he was waiting for the train. Mozo
responded by asking the defendant for his name and identification. The defendant informed the
officers that he would not give them his information. Immediately after, officers ordered the
defendant to “sit up, take the blanket off” several times so they could see the defendant’s hands.
The defendant informed the officers that he was waiting for the train and knew when the train
arrived. Windmon stated that was “irrelevant.” Again, Windmon requested the defendant to
remove his blanket so he could “see [his] hands” and make sure he did not have any weapons. The
defendant indicated that he did not have any weapons and that he was not going to remove his
blanket because he was “not bothering nobody” and was “minding [his] business.” At this point,
the officers put their gloves on. The defendant indicated that his train was arriving at 4 a.m. Mozo
told the defendant that he “can’t be here.” Windmon informed the defendant that they had “zero
intentions of arresting” him, and again ordered the defendant to “sit up” and “take the blanket off.”
The defendant asked why the officers were bothering him, and Mozo responded that the defendant
refused to give them his identification. The defendant stated, “I don’t have to.” The officers
responded that the defendant had to give them his identification. When Windmon again asked for
his name, the defendant responded, “don’t worry about all that.” As the officers approached the
defendant, he removed both hands from under the blanket, one of which clearly held a cell phone.
Approximately three seconds later, Windmon made physical contact with the defendant by
grabbing the phone from his hands. In an apparent explanation for the contact, Windmon stated
that they asked the defendant “to do something” and he “didn’t want to do it.” During the
[SEGMENT 9]
commotion, the defendant again informed the officers that he was waiting on the train and that he
had a ticket. A train horn can be heard in the background. After being put on the ground, the
defendant stated, “get the fuck away from me.” The officers began to place the handcuffs on the
defendant. The officers threatened to tase the defendant if he did not place both hands behind his
back. Approximately 12 seconds later, Windmon tased the defendant and secured handcuffs. After,
the defendant asked the officers, “this how you treat people who waiting on the train,” Mozo
responded, “we asked you to give us something.”
¶9 On cross-examination, Windmon stated that he saw the defendant’s hands holding a cell
phone and not a weapon before he made physical contact with the defendant. Windmon indicated
that they had not received complaints of the defendant trespassing. No signs were posted on the
platform preventing individuals from being there. Windmon did not ask the defendant to leave.
There are no gates or fences to prevent people from entering the platform when it is closed.
Windmon testified that “[a]s a representative of Metra,” he was “authorized to dictate when
somebody is trespassing.” Windmon stated that it was a Metra policy that forbids individuals from
being at the station “[i]f the trains aren’t running.” Windmon first observed the defendant at the
station at approximately 2 a.m., made contact around 3 a.m., and the first train would have been
arriving at 4 a.m. When asked whether it was “against the policy to be on the platform an hour
early” for a train, Windmon responded that the defendant was more than an hour early. Windmon
explained that he did not ask the defendant for his ticket because he “[n]ever got that far in the
conversation,” since the defendant “refused to comply with our first orders.”
¶ 10 On re-direct examination, Windmon stated that part of an investigation into trespassing
consisted of obtaining an individual’s identification and “securing” officer safety. Windmon
explained that he knew the Joliet Police Department told homeless individuals to go to the Metra
platform to “stay warm.” If these individuals “were under the impression that they could be there,”
Metra police would not arrest them for trespassing. Windmon testified that the defendant informed
the officers that he did not have any weapons, and the officers did not locate any weapons among
the defendant’s personal items. Windmon did not know if the defendant had been told by the Joliet
police to go to the platform, and he did not inform the defendant that he could not be there.
¶ 11 The defendant testified that on the date in question, he walked for approximately one hour
from the hospital to the Joliet station and was unsure exactly when he arrived. The defendant had
a ticket in his wallet for the train that he expected to arrive at approximately 4:30 a.m. to take him
to his job in Chicago. The defendant had his blanket, phone, phone charger, wallet, and
identification card. The defendant was watching videos on his phone while he waited for the train
when Mozo and Windmon confronted him. The officers first asked for the defendant’s
identification, and the defendant said he was not going to give it to them. The defendant was
“pissed” and felt like the officers were harassing him. The officers then began asking the defendant
to show his hands when “one thing led to another, and they grabbed [the defendant]” even though
his hands were “already visible.” They “thr[ew]” the defendant on the ground. The defendant stated
that one arm was already behind his back at this point, but the other arm was “stuck” under his
stomach. The defendant was not able to put that arm “all the way” behind his back due to nerve
damage from a prior injury. The defendant did not have any weapons on him. The defendant did
not see any signs that prohibited him from being at the station. He thought the station was open
because the lights were on in the “main” building, and this meant someone was working the ticket
counter.
¶ 12 On cross-examination, the defendant thought that the officers confronted him at
approximately 3:30 a.m. The defendant left the hospital shortly after 2 a.m. and arrived at the
station around 3 a.m. When the officers approached, the defendant had his arms under the blanket
to keep them warm. The defendant agreed that the officers first asked for his name and
identification, and the defendant refused to give them that information. At this point, the defendant
was still covered from the shoulders down. After several requests, the defendant removed his hands
from the blanket. When the officer saw the defendant’s phone, “that’s when he grabbed” him. The
defendant did not remember if he had his hands out of the blanket before or after the officers
approached him. On re-direct examination, the defendant indicated that he did not want to make
fast movements once the officers approached him. The defendant removed his hands from the
blanket with his phone to record the officers because he “felt like the situation might get out of
hand.”
¶ 13 The jury found the defendant guilty of resisting a peace officer. The court sentenced the
defendant to 24 months’ conditional discharge. The defendant appealed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the defendant argues that the State failed to present sufficient evidence to
sustain his conviction of resisting a peace officer. The defendant reasons, inter alia, that the
officers were not engaged in an authorized act to justify a Terry stop. In a challenge to the
sufficiency of the evidence, “ ‘the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) [CITATION] (quoting [CITATION]). “When presented
with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the
defendant.” Id. Thus, “the reviewing court must allow all reasonable inferences from the record in
favor of the prosecution.” [CITATION] “A conviction will
be reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that it
justifies a reasonable doubt of the defendant’s guilt.” [CITATION]
¶ 16 Here, the defendant was charged with resisting a peace officer, which required the State to
prove that the defendant knowingly resisted the performance of an individual he knew was a police
officer “of any authorized act within his *** official capacity.” 720 ILCS 5/31-1(a) (West 2020).
The act must be one that the officer was authorized to perform. [CITATION] A Terry stop may be an authorized act that, if resisted, can be the basis of a
conviction for resisting a peace officer. [CITATION] However, to be considered an authorized act, the officer must have observed unusual conduct
leading to a reasonable, articulable suspicion that the person in question has committed or is about
to commit a crime. 725 ILCS 5/107-14 (West 2020); see [CITATION]; see
also [CITATION] Thus, if the officers were not engaged in
an authorized act or, otherwise stated, did not have a reasonable belief required under Terry to
justify an investigative stop when the defendant resisted, the defendant’s conviction must be
reversed. [CITATION]
¶ 17 Relevant factors to consider when determining whether an officer had reasonable suspicion
to conduct a Terry stop an individual include whether: (1) the stop occurred in a high crime area;
(2) it was late at night or early in the morning; (3) the person engaged in “unprovoked flight”
([CITATION]); and (4) the person’s behavior was consistent with
the officer’s knowledge of criminal activity. [CITATION] “Viewed as
a whole, the situation confronting the police officer must be so far from the ordinary that any
competent officer would be expected to act quickly.” [CITATION] We must view the facts from the perspective of a reasonable officer in that situation, rather
than analytical hindsight. [CITATION] The facts supporting the officer’s suspicion need not reach the level
of probable cause, but they must amount to more than a mere hunch. [CITATION]
¶ 18 At the outset, we note that the officers conducted a Terry stop due to the belief that the
defendant could be trespassing. A person is guilty of trespassing when he or she, after receiving
notice, “knowingly and without lawful authority enters or remains within or on a building.” 720
ILCS 5/21-3(a)(1), (2) (West 2020); see also id. § 21-5 (a person commits criminal trespass to
State supported land when, after receiving notice “from the State or its representative that the entry
is forbidden”). At the time of the stop, the facts available to the officers were that members of the
Joliet Police Department were known to inform homeless individuals that they could use the Metra
platforms to get warm during inclement weather, and there were no signs posted on or around the
[SEGMENT 10]
platform to inform anyone when they were or were not permitted to be on the platform. The
platform was open, and no gates or doors prevented entry, nor had the officers received any
complaints of an individual trespassing. While the officers saw someone on the platform at 2 a.m.,
they could not identify the defendant as that individual. The officers approached the defendant on
the platform at approximately 3 a.m., and the trains began running at 4 a.m. However, an individual
waiting for a train an hour early is not “so far from the ordinary that any competent officer would
be expected to act quickly.” [CITATION] Further, at no point did the officers order
the defendant to leave. The defendant had no notice to vacate the premises, nor was he given an
opportunity to leave. We find that the defendant’s mere presence on the platform, without any
other evidence, was insufficient to justify a Terry stop. See [CITATION]
¶ 37 (“The officer must be able to articulate more than an inchoate and unparticularized suspicion
or hunch of criminal activity.” (Internal quotation marks omitted.) (quoting [CITATION])). Given the information available to the officers, we cannot say that these facts lead to a
reasonable, articulable suspicion that the defendant had committed or was about to commit a crime.
See [CITATION]. As a result, the State failed to establish that the officers’ Terry
stop that precipitated his resisting a peace officer offense was justified by articulable reasonable
suspicion and amounted to an “authorized act.”
¶ 19 Even if we assume that the defendant’s mere presence on the platform before the train
began running factored into his “unusual conduct” to justify the officers initial stop, in light of the
applicability of only one [CITATION] factor—that it was early in the morning—no other facts otherwise
indicate criminal activity to justify the Terry stop of the defendant. See [CITATION].
Notably, there is no evidence that the stop was in a high crime area, that the defendant
attempted to flee, or that the defendant’s behavior was consistent with the officer’s knowledge of
criminal activity. Id. Moreover, whatever reasonable suspicion existed dissipated when the
defendant informed officers that he had a ticket for the train. See [CITATION] (“[A]n investigative stop must cease once reasonable suspicion or probable
cause dissipates.”); see also [CITATION] (following a report
of violence, an officer is “authorized to conduct some initial investigation,” however, upon finding
no evidence of a crime, his authority to continue ended). The officers had ample opportunity to
request to view the defendant’s train ticket but failed to do so. The officers cannot ignore or
disregard new information from the defendant relevant to their trespassing investigation and insist
that the defendant refused to provide information related to their investigation. As such, the
officers lacked reasonable suspicion to justify their Terry stop, making it an unauthorized act and
insufficient to support a conviction for resisting a peace officer.
¶ 20 Moreover, the officers failed to articulate any other criminal activity that they believed the
defendant to have committed or was about to commit. Instead, the evidence showed that the
officers immediately asked the defendant to tender his identification upon contact. See [CITATION]
(the court held that an individual subject to a Terry
stop has no obligation to answer the questions of a police officer, and the refusal to identify himself
or provide identification to police officers was insufficient evidence to support a conviction for
resisting or obstructing a peace officer). This fact, coupled with the officers informing the
defendant that they had no intention of arresting him, followed almost immediately by the
defendant’s detention, indicates that the officers incorrectly believed they were justified in
conducting a Terry stop of the defendant based solely on the refusal to tender his identification
and his generally combative demeanor. See id. The facts presented are insufficient to justify a
Terry stop and, thus, the officers’ actions were unauthorized. See [CITATION], ¶ 37.
¶ 21 Finally, the defendant’s refusal to initially reveal his hands was insufficient to establish a
reasonable suspicion that the defendant was armed and dangerous. First, the officers’ belief that
the defendant “could have had a weapon,” without more, amounted to a mere “hunch,” which is
insufficient to establish reasonable suspicion. See [CITATION] (intrusions upon
constitutionally guaranteed rights must be based on more than inarticulate hunches). Second,
before the officers made physical contact, the defendant showed his hands and phone to the officer.
See [CITATION] (“Refraining from physical action or failing
to cooperate with the police is generally not considered the same as resisting or obstructing an
officer.”). The evidence showed that Windmon observed the defendant’s hands prior to making
contact, as his first action was to remove the defendant’s phone from his hands. Not only did the
officers lack reasonable articulable suspicion to justify their initial Terry stop, but the officers also
lacked articulable suspicion once the defendant showed his hands. Windmon could clearly see,
prior to making contact, that the defendant had his hands displayed and held a cell phone.
Therefore, the officers were not authorized or justified in conducting a Terry stop in this case, even
taking the evidence in the light most favorable to the State, and therefore for the foregoing reasons,
the evidence does not support the guilty verdict.
¶ 22 III. CONCLUSION
¶ 23 The judgment of the circuit court of Will County is reversed.
¶ 24 Reversed.
2023 IL App (1st) 211646-U
No. 1-21-1646
Order filed December 27, 2023
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 10676
)
ELVIN PRINCE, ) Honorable
) Ursula Walowski,
Defendant-Appellant. ) Judge, presiding.
JUSTICE D. B. WALKER delivered the judgment of the court.
Justices Lampkin and Van Tine concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for first degree murder over his contention that
he was denied effective assistance by trial counsel’s failure to file a motion to quash
arrest and suppress evidence and to object during a police officer’s hearsay
testimony.
¶2 Following a jury trial, defendant Elvin Prince was found guilty of first degree murder
pursuant to an accountability theory, and sentenced to 35 years in prison. On appeal, defendant
contends that he was denied effective assistance of counsel by trial counsel’s failure to file a No. 1-21-1646
motion to quash arrest and suppress evidence and to object to a police officer’s hearsay
testimony about a “flash message” that “unequivocally” identified defendant as “the offender.”
We affirm.
¶3 I. BACKGROUND
¶4 Following an incident on May 19, 2014, defendant was charged under an accountability
theory with the first degree murder of Kashaun Hall, the attempted first degree murders of Stefun
Howard and Gerald Bauseman, and aggravated discharge of a firearm. The State proceeded on two
counts of first degree murder and nol-prossed the remaining counts.
¶5 Prior to trial, the State filed a motion in limine to admit gang evidence, which the trial court
granted after argument.
¶6 At trial, Howard testified that in May 2014, he lived in Chicago and was friends with Hall.
On May 19, 2014, Tavien Butts was driving Howard and Bauseman to Howard’s home when
Howard noticed a silver Nissan behind them. Howard identified defendant in court as the driver of
the Nissan. Defendant, whom Howard knew as “E-Dub,” belonged to a “click” or a small faction
of the “Money Over B******” (MOB) gang. At the time, Howard and Hall belonged to a different
gang, “N****** In Action” (NIA). NIA and MOB were rivals and the two groups fought at school.
Howard saw “something” in the Nissan’s front passenger seat, which was angled “all the way
back.” Butts accelerated to evade the Nissan. He subsequently left Howard and Bauseman at
Howard’s home. Shortly thereafter, Howard and Bauseman left Howard’s home on foot.
¶7 As they walked, Howard saw the Nissan by a gas station. The same person was driving.
Howard and Bauseman walked to a restaurant and called Butts to ask for a ride. From the
restaurant, Howard observed the Nissan circle the block. When Butts did not respond, they called
No. 1-21-1646
Hall and told him that E-Dub and an unidentified person were following them. Howard and
Bauseman left the restaurant, met Hall, and walked to “Brian’s” 1 backyard.
¶8 Howard heard a vehicle approaching and saw the Nissan stopped about eight feet away.
[SEGMENT 11]
Defendant was still driving. The passenger, who was wearing a black hat “all the way down” and
a mask, “popped up and started shooting.” The passenger was skinny, and Howard believed that
the individual was a man. Howard and Bauseman fled. Hall, however, ran toward the vehicle.
When Howard returned to the alley, he saw Hall on the ground bleeding. Bauseman then returned.
When the police arrived, they asked if Howard saw anything and then took him to look at a silver
Nissan, which he recognized as the vehicle that he previously encountered. He also went to a police
station where he identified defendant in a photographic array.
¶9 The State entered stipulations establishing the foundation for several surveillance videos
from businesses in the area. The State played the videos, which Howard narrated in court
consistently with his earlier testimony, including that the Nissan arrived, and that Hall ran and then
fell to the ground.
¶ 10 During cross-examination, Howard testified that the conflict between NIA and MOB had
never previously escalated to shooting. While riding in Butts’ vehicle, Howard observed the
Nissan’s driver, but only saw something black in the passenger seat. Howard described what he
saw as “almost *** like a person,” but acknowledged that it could also have been a “big bag.” The
gunshots came from the Nissan’s passenger side.
¶ 11 Howard did not see defendant make gang signs or possess a firearm on the day of the
shooting, but found it “suspicious” that the passenger seat was pushed all the way back. At trial,
The report of proceedings does not contain Brian’s family name.
No. 1-21-1646
he admitted that his grand jury testimony implied that the gunshots came from the driver’s side
window.
¶ 12 During redirect, Howard clarified that he testified before the grand jury that, at the time of
the shooting, he saw the shooter “ ‘lean up’ ” while defendant leaned back.
¶ 13 Bauseman testified that he, Howard, and Hall belonged to NIA and were involved in a
rivalry with MOB. On May 19, 2014, Butts drove Bauseman and Howard toward Howard’s home.
Bauseman, who was in the backseat, saw a silver vehicle behind their vehicle and Howard stated
that he saw E-Dub. Bauseman did not know E-Dub. However, at trial, he identified defendant as
the driver of the silver vehicle. Bauseman did not see anyone in the backseat and only saw the
dreadlocks of the person in the front passenger seat. When the silver vehicle turned, defendant
looked in Bauseman’s direction in an “[a]ngry” manner. Defendant did not make gang signs and
Bauseman did not see a firearm.
¶ 14 After Bauseman and Howard left Howard’s home, Bauseman again saw the silver vehicle,
still driven by defendant. Bauseman and Howard were scared, so they entered a restaurant. Howard
called Hall, who met them near the restaurant. They next went to Brian’s backyard, but Hall could
not open the gate. Bauseman said they should leave the alley because they were being followed.
He then heard a vehicle accelerate and saw the silver vehicle. Defendant was still driving.
Bauseman heard someone say, “hey, hey, hey,” saw a firearm emerge from a window of the silver
vehicle, and ran. He heard four or five gunshots. The person in the passenger seat had the firearm,
not defendant. Bauseman ran when he heard the first gunshot.
¶ 15 Bauseman hid briefly. Then, he returned to the alley and observed that Hall was hurt. When
police arrived, Bauseman told them that his friend had been shot, but was too distraught to say
====== End of Part of Court Ruling ====== No. 1-21-1646
more. Later, at a police station, he told officers what happened and identified defendant in a
photographic array. Because he was scared, he told police he did not belong to NIA.
¶ 16 During cross-examination, Bauseman acknowledged that he did not call the police to report
that someone was following him. While defendant looked at Bauseman, defendant did not make a
gang sign, speak, or point a firearm. Bauseman did not see the shooting; rather, he saw the firearm
emerge from the silver vehicle and then ran.
¶ 17 Chicago police officer Brett Kellam testified that around 5 p.m. on May 19, 2014, he heard
a “flash message” of a “person shot.” Additional information indicated that a silver Nissan and
two black men, one with dreadlocks and one with a mask, were possibly involved. In another
message, he learned that one of the men was named “E-Dub” and could be “Ethan Prince,” who
lived around 79th Street and St. Louis. Officer Kellam then relocated to 7900 St. Louis Avenue.
¶ 18 Officer Kellam drove south on Kedzie, then turned westbound on 79th toward St. Louis.
He explained that Kedzie and St. Louis were parallel to each other and that Kedzie was three blocks
east of St. Louis. Officer Kellam then observed a black man with dreadlocks run across the street
onto a concrete “planter area” with trees and shrubs. Officer Kellam exited his vehicle to
investigate. He identified defendant in court as the person who ran across the street. Officer Kellam
asked defendant his name and upon hearing the answer “Elvin Prince” took him into custody. A
cell phone, wallet, state identification card, and vehicle keys were recovered from defendant during
a custodial search. No weapons were recovered. When additional officers arrived, Officer Kellam
gave the keys to Officer Daniel Sullivan. Defendant was taken to a police station.
¶ 19 During cross-examination, Officer Kellam clarified that the initial “flash message” stated,
“person shot.” He then drove toward the direction of the shooting. At some point, another message
No. 1-21-1646
stated that two black men, one with a mask and one with dreadlocks, were involved. When Officer
Kellam saw defendant running to the concrete planter, defendant was alone. Officer Kellam
believed defendant could be Ethan Prince, but defendant identified himself as Elvin Prince, which
was corroborated by defendant’s identification.
¶ 20 Chicago police officer Daniel Sheehan testified that after arriving at 79th and St. Louis,
Sullivan gave him a vehicle key and fob. Officer Sheehan recognized the keys as belonging to a
Nissan. He drove southward, the direction from which defendant came, and clicked the “button”
to see if any vehicles lit up or unlocked. Approximately 10 minutes later, Officer Sheehan found
a vehicle that responded to the key fob. He informed other officers but did not touch the vehicle.
The State then published a video from a residence, which Officer Sheehan asserted depicted the
events he had just described.
¶ 21 The State then presented testimony establishing that the Nissan was photographed between
8 and 8:30 p.m. on May 19, 2014, and that shortly thereafter a gunshot residue (GSR) test was
administered to defendant at a police station. A forensic investigator next testified that the Nissan
was dusted for fingerprints and swabbed for DNA evidence and that a GSR test was performed on
the Nissan’s passenger side. A retired trace evidence analyst testified that defendant’s GSR test
was negative, and that the Nissan’s front passenger side and roof tested positive for GSR.
¶ 22 The State next entered stipulations establishing that defendant’s DNA was collected, that
DNA analysis on the samples taken from the Nissan identified a mixture of DNA profiles
originating from at least three people, and that a major male DNA profile was identified from this
mixture from which defendant could not be excluded. The chances that a person in the general
population would have the major DNA profile identified in the sample recovered from the front
No. 1-21-1646
driver’s side of the vehicle was approximately 1 in 2 quintillion blacks, 1 in 53 quintillion whites,
or 1 in 140 quintillion Hispanic unrelated individuals. The State entered an additional stipulation
establishing that defendant’s arms were photographed; the photographs, which were published and
are included in the record on appeal, show tattoos stating “EDUB” and “Money Over B******.”
The State then entered an Illinois Secretary of State certified driver’s record abstract for defendant,
with a date of birth of September 25, 1996, and an address in the 3500 block of West 79th Place.
¶ 23 Chicago police detective Daniel Gorman testified that on May 19, 2014, Howard identified
a Nissan parked on the street as the vehicle from which a person leaned out of the passenger side
and shot Hall. Howard and Bauseman separately identified defendant in photographic arrays as
the Nissan’s driver.
¶ 24 At the close of evidence, the defense moved for a directed verdict, which the trial court
denied. Following closing arguments, the jury found defendant guilty of first degree murder.
¶ 25 Defendant then retained new counsel. Posttrial counsel filed a motion and supplemental
motion for a new trial raising numerous ineffective assistance claims. Relevant here, the motion
alleged that trial counsel failed to file a motion to quash arrest and suppress evidence based upon
a lack of probable cause to stop and search defendant when defendant was stopped while crossing
[SEGMENT 12]
the street, there was no warrant for his arrest, and there was no evidence that the officer knew
defendant.
¶ 26 The trial court held a hearing on defendant’s motion and supplemental motion for a new
trial. We relate only the testimony relevant to the issues before this court. Nichole Massarello
testified that she and Tod Urban represented defendant at trial. 2 Urban was lead counsel and
The hearing occurred on three days in April, June, and August 2021.
No. 1-21-1646
Massarello served as second chair. No investigator was hired and no motion to suppress was filed.
During cross-examination, Massarello testified that defendant’s trial was not the first murder trial
in which she participated, but Urban decided whether to stipulate to evidence or file motions.
¶ 27 Urban testified that he had been a licensed attorney in Illinois for 37 years and his practice
was wholly criminal law. He was retained by defendant’s parents on December 4, 2014. He could
not find his case file, did not “recall this case,” and did not have “any independent recollection” of
its details. Urban did not recall hiring a private investigator and did not file a motion to quash arrest
and suppress evidence.
¶ 28 Posttrial counsel asked that the hearing be continued so that Urban could locate his trial
file. The State did not object. The trial court agreed, but asked the State to cross-examine Urban
on his testimony so far.
¶ 29 During cross-examination, Urban stated that, when determining whether to file a motion
to quash arrest and suppress evidence, he reviews the discovery and does not file frivolous motions.
In every murder case, he considers whether an exception to the warrant requirement permits the
introduction of evidence obtained through a warrantless arrest and search. At the next date, Urban
testified that he could not locate his case file.
¶ 30 In closing argument, posttrial counsel argued that it was the “norm” to file a motion to
suppress to “get more information” and that there was “nothing you can lose” by examining the
arresting officer as to why defendant was stopped, what defendant wore, and why he was
searched. 3
Posttrial counsel also argued that the suppression motion would have been meritorious because
[CITATION] was good law.
No. 1-21-1646
¶ 31 The trial court denied defendant a new trial, finding, relevant here, that a motion to quash
arrest and suppress evidence would not have succeeded. Probable cause for a stop existed pursuant
to [CITATION] when defendant was stopped minutes after a shooting “in the
area,” and defendant, who had dreadlocks, matched the description given, and his name was related
over the radio. Posttrial counsel made an oral motion to reconsider, which the trial court denied.
¶ 32 On December 13, 2021, following argument, the trial court imposed a 35-year sentence for
first degree murder. Defendant filed a motion to reconsider sentence, which the trial court denied.
¶ 33 II. ANALYSIS
¶ 34 A. Failure to File Motion to Quash Arrest and Suppress Evidence
¶ 35 On appeal, defendant first contends that he was denied effective assistance when trial
counsel failed to file a motion to quash arrest and suppress evidence. Defendant argues that the
motion would have been meritorious as Officer Kellam did not have reasonable suspicion to
execute a [CITATION] stop when he stopped defendant because he matched the “vague” description of
the offender related in a “flash message.”
¶ 36 When evaluating a claim of ineffective assistance, we apply a two-prong test under which
the defendant must prove his counsel’s performance fell below an objectively reasonable standard
and that the deficient performance prejudiced him. [CITATION] A defendant’s failure to satisfy either prong precludes a finding of ineffectiveness.
[CITATION] We review whether a defendant received ineffective
assistance of counsel de novo. [CITATION]
This assertion was incorrect. Defendant’s jury trial began on May 20, 2019, and concluded on May 23,
2019. [CITATION]
No. 1-21-1646
¶ 37 “To establish deficient performance, the defendant must overcome the strong presumption
that counsel’s action or inaction was the result of sound trial strategy.” [CITATION]. Acts or omissions by counsel will not be considered matters of strategy,
however, where no sound tactical reason could conceivably support the act or omission. [CITATION]. To establish prejudice, a defendant must establish there
is a reasonable probability that, but for counsel’s unreasonable performance, the result of the
proceeding would have been different. [CITATION].
¶ 38 The decision to file a motion to suppress is generally a matter of trial strategy entitled to
great deference. [CITATION]. To establish ineffective assistance based on counsel’s failure to file such
a motion, a defendant must show that the unargued motion was meritorious and that a reasonable
probability exists that the trial outcome would have been different had the evidence been
suppressed. Id. It is the defendant’s burden to establish a factual basis for an ineffective assistance
claim. [CITATION].
¶ 39 Here, defendant contends that a motion to quash arrest and suppress evidence would have
been successful, as Officer Kellam stopped him merely because he was a black man with
dreadlocks running across the street. He notes that Officer Kellam did not testify to any prior
encounters with defendant or identify the “original source” of the identifying information, and
concludes that the “vague description” of the offender was an insufficient basis for a Terry stop.
¶ 40 An arrest made without probable cause violates the prohibitions against unreasonable
searches and seizures under the United States and Illinois constitutions. [CITATION]. Pursuant to Terry, however, a police officer may briefly detain a person for
investigatory purposes if the officer reasonably believes the person has committed or is about to
- 10 - No. 1-21-1646
commit a crime. [CITATION];
see also 725 ILCS 5/107-14(a) (West 2014).
¶ 41 Reasonable suspicion arises when an officer sees unusual conduct which leads the officer
reasonably to conclude in light of his or her experience that criminal activity may be afoot. [CITATION]. Reasonable suspicion is a “low bar.” [CITATION]. “[T]he evidence necessary to justify a Terry stop need not rise to
the level of probable cause and can even arise when no violation of the law is witnessed; however,
a mere hunch is insufficient.” [CITATION]. Rather, officers
may rely on their training and experience and make inferences that would elude an untrained
person. [CITATION].
¶ 42 In order to justify an investigatory stop, the police officer must be able to point to specific,
articulable facts, which, taken with rational inferences therefrom, reasonably warrant the intrusion.
[CITATION]. In determining whether a stop is
reasonable, an objective standard is used in which the court considers the totality of the facts and
circumstances from the perspective of a reasonable officer at the time of the stop. See [CITATION]. Further, pursuant to the collective knowledge doctrine,
“information known to all of the police officers acting in concert can be examined when
determining whether the officer initiating the stop had reasonable suspicion to justify a Terry stop.”
[CITATION]; see also [CITATION] (quoting [CITATION] (when officers work together,
“ ‘the knowledge of each is the knowledge of all’ ”)).
- 11 - No. 1-21-1646
¶ 43 [CITATION] is instructive. There, our supreme court determined that
the “act of running in the rain while holding the front of [a] pocket” did not provide police officers
with reasonable suspicion to stop a person. [CITATION]
¶ 44 In that case, an officer testified at the hearing on the defendant’s motion to suppress
evidence that, at the time he encountered the defendant, the defendant was running and appeared
to be holding his front pocket. [CITATION] The officer acknowledged that he was not responding to a
specific report of a crime or 911 call, and that it was raining. [CITATION] He did not observe the
defendant committing any crime and the defendant was already running at the start of the
encounter. [CITATION] The officer tried to stop the defendant because he wanted to know why the
defendant was running. [CITATION] Then, after stopping the defendant and observing a “ ‘big bulge’ ”
in the defendant’s pocket, the officer wanted to determine “ ‘what was the bulge.’ ” [CITATION]
¶ 45 Based on the facts of that case, our supreme court determined that the officers lacked
reasonable suspicion to stop the defendant. [CITATION] The court noted that the officer did not testify
that he was responding to a specific report of a crime, did not describe the neighborhood as a “high-
crime area,” and acknowledged that the defendant was already running when the encounter began.
[CITATION] Rather, the officer “simply wanted to know why [the] defendant was running and what item
caused a bulge in [the] defendant’s pants.” [CITATION] The court therefore concluded that the facts known
[SEGMENT 13]
to the officer at the time of stop were insufficient, and the stop itself was “unlawful.” [CITATION]
¶ 46 Here, however, Officer Kellam received information that a person was shot and that two
black men, one with dreadlocks and one with a mask, and a silver Nissan were involved. He
thereafter learned that one of the men went by the nickname E-Dub and could be “Ethan Prince,”
who lived around 79th and St. Louis. Officer Kellam relocated to the 7900 block of St. Louis
- 12 -
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'people-v-lozano', which should be replaced with `[CITATION]`. No. 1-21-1646
where he saw a black man with dreadlocks run across the street onto a concrete planter with trees
and shrubs. In other words, after receiving information that a black man with dreadlocks who lived
near a certain intersection was possibly involved with a shooting, Officer Kellam relocated to that
area and saw defendant, a black man with dreadlocks, run across the street into the shrubbery-
covered median. See [CITATION] (finding that a radio transmission of a “ ‘man down’ ” and a description of the offender as a black man wearing a black
hoodie running north on a certain street provided reasonable suspicion to stop the defendant, who
matched the description and was running on the same street).
¶ 47 While defendant’s behavior could have had an innocent explanation, “[r]easonable
suspicion does not require an officer to ‘rule out the possibility of innocent conduct.’ ” [CITATION] (quoting [CITATION]).
Additionally, reasonable suspicion can be partially based on an officer’s observation of an
individual similar to one believed to be fleeing the scene of a recent offense when the individual
is located in the general area where the fleeing suspect is expected to be, given the time of the
offense, and the distance from the scene. See [CITATION].
Here, Officer Kellam observed a man who matched the description of the offender running across
the street as Officer Kellam traveled to the area where the offense occurred. Moreover, the man
was running in the area identified in the “flash message” as being where he lived. Thus, Officer
Kellam had reasonable suspicion to effectuate a Terry stop. See [CITATION] (to
justify an investigatory stop, the officer must be able to point to specific, articulable facts, which,
taken with rational inferences therefrom, reasonably warrant the intrusion).
- 13 - No. 1-21-1646
¶ 48 Defendant, however, argues that no reasonable suspicion existed because Officer Kellam
acted on an anonymous tip and did not testify to previous encounters with defendant. He notes that
the record is “silent” as to who related the description of the offenders to officers, and argues that
the “vague” quality of the information was insufficient to provide reasonable suspicion. We
observe, however, that Officer Kellam was not asked at trial about the source of the description of
the offenders. Consequently, the record before this court does not clearly establish whether Officer
Kellam acted on an anonymous tip, the contents of the tip, or whether Officer Kellam had
previously interacted with defendant.
¶ 49 Moreover, the record does not reveal whether the information transmitted in the “flash
messages” was the only information known to Chicago police officers at the time of the messages’
transmittal. That is, there would be no reason for a “flash message” to include the identity of the
person or people who identified and described the offender. Officer Kellam relied on the
information contained in the messages, and pursuant to the collective knowledge doctrine, the facts
known to the officers at the scene could be considered when determining whether there was
reasonable suspicion to justify a Terry stop. See [CITATION].
¶ 50 However, the record does not contain these details because defendant’s arrest was not
challenged in the trial court. See [CITATION]. Consequently, we cannot agree with defendant’s conclusion
that the lack of evidence in the record as to these issues must be resolved in his favor. See [CITATION],
¶ 14 (“The lack of evidence currently in the record concerning probable
- 14 - No. 1-21-1646
cause and the officers’ pre-arrest beliefs cannot be equated with fact—that there was no evidence
to support a probable cause determination.” (emphasis in original)).
¶ 51 We are similarly unpersuaded by defendant’s reliance on [CITATION]. There, the defendant filed a motion to quash arrest and suppress evidence and
presented two witnesses at the hearing on the motion. [CITATION].
¶ 52 At trial, two officers testified that they approached the defendant because he “fit the
description” of a robbery suspect that they received by radio dispatch. [CITATION]. The trial court
subsequently vacated its ruling on the motion to quash arrest and suppress evidence and allowed
the State to make an offer of proof. [CITATION]. The State proffered that a police officer would
testify that he received a “ ‘flash message’ ” that a “ ‘male black wearing a blue coat and black
hat’ ” fled west toward a park. The officer arrived at the park two minutes later and observed the
defendant, a black man, wearing “ ‘a blue coat and a black hat.’ ” [CITATION]. The trial court granted
the defendant’s motion, ordered a mistrial, and the State appealed. [CITATION].
¶ 53 On appeal, this court affirmed, as the only evidence introduced to explain the defendant’s
detention was that he “ ‘fit the description’ ” of an offender. [CITATION]. There was no testimony as to the
“specific description” of the offender’s physical characteristics or clothing and no testimony as to
the defendant’s appearance or clothing at the time of the stop. [CITATION]. Moreover, absent the offer of
proof, the record did not include the suspect’s gender or race. [CITATION]. Accordingly, the trial court “had
no opportunity to determine whether the description of the offender and the physical characteristics
of the defendant were similar enough to justify the detention of the defendant.” [CITATION].
- 15 - No. 1-21-1646
¶ 54 This court further noted “albeit parenthetically” that the details in the offer of proof were
insufficient to justify the stop of the defendant. Id. at 868; see [CITATION], 355 Ill. App. 3d
898, 904 n.1 (2005) (declining to consider the parenthetical finding in Washington); [CITATION],
2015 IL App (1st) 131872, ¶ 49 n.3 (same). The offer of proof stated that the offender was
a “ ‘male black wearing a blue coat and black hat’ ” without detailing the offender’s complexion,
whether he had facial hair or wore glasses, and the type or style of the coat and hat. Washington,
269 Ill. App. 3d at 868. We highlighted that the defendant testified that he was wearing a “ ‘a blue
Chicago Bears “starter jacket” ’ ” at the time of the stop, which was a “distinctive and readily
discernible item of apparel.” Id.
¶ 55 In this case, however, Officer Kellam testified that the description in the “flash message”
included gender, race, and hairstyle and that defendant matched those descriptors. Additionally,
defendant was stopped shortly after the offense by the officer who was traveling toward the area
where the offense occurred and in the same neighborhood where the “flash messages” stated that
the offender lived. These details distinguish the facts of this case from those in Washington. Here,
based upon the record at trial, the information available to Officer Kellam at the time of the stop
provided Officer Kellam with reasonable suspicion to stop defendant: defendant matched the
description that Officer Kellam received of a black male with dreadlocks, and defendant was seen
running in the area of the offense shortly after it occurred. See [CITATION],
¶ 14.
¶ 56 As Officer Kellam’s stop of defendant was not improper, defendant cannot establish that
he was prejudiced by trial counsel’s failure to file a motion to quash arrest and suppress evidence.
See [CITATION], ¶ 45 (“Defense counsel is not required to make
- 16 -
======= End of Document ======= No. 1-21-1646
losing motions or objections in order to provide effective legal assistance.”). His ineffective
assistance claim therefore fails. [CITATION]
¶ 57 B. Failure to Object to Testimony
¶ 58 Defendant next contends that he was denied effective assistance by trial counsel’s failure
to object to Officer Kellam’s testimony that the “flash message” stated that a black man with
dreadlocks, known as E-Dub and “Ethan Price,” was connected to the shooting. He asserts there
was no strategic reason for trial counsel’s failure to object and that he was prejudiced by this “third
eyewitness” identification testimony.
¶ 59 The State responds that defendant has forfeited this contention for failure to raise it before
the trial court and asks for plain error review before this court. However, a party may properly
raise a claim of ineffective assistance for the first time on appeal. See [CITATION] Accordingly, we will address the merits of defendant’s contention.
[SEGMENT 14]
¶ 60 As discussed, to establish a claim of ineffective assistance, a defendant must demonstrate
that trial counsel’s performance fell below an objective standard of reasonableness, and there is a
reasonable probability that, but for the complained-of actions, the result of the proceeding would
have been different. [CITATION] “If it is easier to dispose of an ineffective
assistance claim on the ground that it lacks sufficient prejudice, then a court may proceed directly
to the second prong and need not determine whether counsel’s performance was deficient.” [CITATION] In the case at bar, we
can dispose of defendant’s claim of ineffective assistance on the prejudice prong alone. See, e.g.,
[CITATION] (“If a defendant cannot establish that he suffered
- 17 - No. 1-21-1646
prejudice, a court need not determine whether counsel’s performance was constitutionally
deficient.”).
¶ 61 Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c) (eff.
Oct. 15, 2015). “The determination of whether a statement constitutes inadmissible hearsay does
not focus upon the substance of the statement, but rather the purpose for which the statement is
being used.” [CITATION]. We review de novo whether testimony
constitutes hearsay. [CITATION].
¶ 62 An exception to the general rule against hearsay applies when a statement is offered “for
the limited purpose of showing the course of a police investigation where such testimony is
necessary to fully explain the State’s case to the trier of fact.” [CITATION]. A police
officer may testify to out-of-court conversations “when such testimony is not offered to prove the
truth of the matter asserted ***, but is used to show the investigative steps taken by the officer.”
[CITATION]; see also [CITATION] (a police officer may testify about certain conversations, including their substance, to
establish the course of an investigation rather than to prove the truth of the matter asserted, as long
as the testimony does not go to the “very essence of the dispute”). This is because statements by a
police officer which explain the investigatory process are not offered to prove the truth of the
matter asserted. [CITATION]. To prevent police officers from
explaining their conduct during an investigation puts them “in the false position of seeming just to
have happened upon the scene.” (Internal quotation marks omitted.) [CITATION].
- 18 - No. 1-21-1646
¶ 63 “Accordingly, a police officer may testify about a conversation that he had with an
individual and his actions pursuant to the conversation to recount the steps taken in his
investigation of the crime.” [CITATION], ¶ 41. “However, the
police officer may not testify to information beyond what was necessary to explain the officer’s
actions.” Id.
¶ 64 Here, defendant contends that Officer Kellam’s testimony that “flash messages” stated that
the offender was a black man with dreadlocks who went by the nickname “E-Dub,” had the legal
name “Ethan Prince,” and resided at 79th and St. Louis went to the very essence of the dispute,
that is, identified defendant as the offender.
¶ 65 We find [CITATION], to be instructive. In that case,
following a jury trial, the defendant was found guilty of first degree murder, attempted first degree
murder, and aggravated battery with a firearm. Id. ¶ 1. On appeal, the defendant first challenged
as inadmissible hearsay an officer’s testimony that, after receiving information from witnesses, a
“flash message” was issued for a white man named Michael Temple, with the nickname of White
Mike. Id. ¶ 59. This court agreed that the “naming” of the defendant in the “flash message” was
not “ ‘necessary to fully explain’ ” the course of the investigation. Nevertheless, this court found
any error was harmless because prior to the officer’s testimony another witness testified that the
defendant was the shooter and that he told the police that the defendant was the shooter. Id.
Therefore, the officer’s “improper testimony” about the “flash message” “simply duplicated
properly admitted evidence.” Id.
¶ 66 The defendant also challenged a second officer’s testimony that, after responding to a call
of “shots fired,” the officer received information which included a description of the offender’s
- 19 - No. 1-21-1646
vehicle and the name of a person wanted in connection with the shooting. [CITATION] ¶ 60. That officer
further testified that he obtained “last whereabouts” of the suspect and relocated to that area, where
he observed a vehicle matching the description of offender’s vehicle. (Internal quotation marks
omitted.) [CITATION] We found that testimony to be properly admitted as the officer’s statements regarding
the description of the vehicle and the suspect’s last known whereabouts were necessary to explain
why the officer proceeded to that area and how he identified the vehicle used in the shooting. [CITATION]
We noted that the officer did not “give any specifics of the description or the suspect[’]s name,”
but only testified to the extent necessary to explain his actions after receiving the information. [CITATION]
Therefore, the officer’s testimony fell within the scope of the police procedure exception to the
hearsay rule. [CITATION]
¶ 67 Similarly, here, the State did not introduce Officer Kellam’s testimony regarding the “flash
messages” to establish that defendant was actually involved in the offense, but rather to explain
Officer Kellam’s presence in the area where defendant was taken into custody. See [CITATION]
IL App (1st) 111653, ¶¶ 58, 60. Absent Officer Kellam’s testimony regarding the “flash
messages,” there would have been no explanation as to how he came to be in the vicinity of 79th
and St. Louis or why he stopped to speak to defendant. See, e.g., [CITATION]
1004 (an officer should be able to explain the officer’s presence and conduct rather than just
seeming to appear at the scene). As in [CITATION] however, the additional testimony detailing that
defendant was named in the flash message was not necessary to fully explain the course of the
investigation.
¶ 68 Nonetheless, “[i]nadmissible hearsay does not require reversal where there is no reasonable
probability the jury would have found the defendant not guilty had the hearsay been excluded.”
- 20 - No. 1-21-1646
[CITATION]. “ ‘When examining whether the admission of hearsay
was harmless, reviewing courts must ask whether there is a reasonable probability that the trier of
fact would have acquitted the defendant had the hearsay been excluded.’ ” [CITATION].
¶ 69 Here, prior to Officer Kellam testifying, defendant was identified as the driver of the Nissan
by Howard and Bauseman. Defendant makes no argument that Howard’s and Bauseman’s
identifications were improperly admitted. Therefore, as in [CITATION], any impropriety in Officer
Kellam’s testimony detailing that defendant was named in the “flash message” simply duplicated
properly admitted evidence—that defendant was the driver of the Nissan—and there is no
reasonable probability that the jury would have acquitted defendant had Officer Kellam’s
complained-of testimony been excluded. See [CITATION].
¶ 70 As there is no reasonable probability that the jury would have found defendant not guilty
absent Officer Kellam’s complained-of testimony, defendant cannot establish he was prejudiced
by trial counsel’s failure to object. [CITATION]. Therefore, his claim of
ineffective assistance must fail. See [CITATION] (the failure to establish either
prong of the Strickland test is fatal to an ineffective assistance claim).
¶ 71 Defendant finally contends that he was denied effective assistance by trial counsel’s
cumulative errors. However, as he has not established that he was prejudiced by either of counsel’s
complained-of inactions, he has not established that he was denied effective assistance. See [CITATION].
CONCLUSION
¶ 72 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 73 Affirmed.
- 21 -
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[SEGMENT 1]
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
IL App (3d) 230163-U
Order filed July 19, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois,
Plaintiff-Appellant, )
) Appeal No. 3-23-0163
v. ) Circuit No. 22-CF-746
)
JAVONTA L. DAVIS, ) Honorable
) Kathy S. Bradshaw-Elliott,
Defendant-Appellee. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices Hettel and Davenport concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not err in granting defendant’s motion to suppress evidence.
Affirmed.
¶2 The State appeals the Kankakee County circuit court’s order granting a motion to suppress
evidence filed by defendant, Javonta L. Davis. The State contends that the search of defendant’s
person was a lawful protective pat down not designed to gather evidence. Alternatively, the State
argues that the evidence obtained following the illegal search was sufficiently attenuated to defeat
the exclusionary rule. We affirm. ¶3 I. BACKGROUND
¶4 On December 9, 2022, defendant was charged by information with two counts of unlawful
possession of a controlled substance with intent to deliver ([CITATION]), one count of unlawful possession of methamphetamine with intent to deliver ([CITATION]), two counts of unlawful possession of a controlled substance
([CITATION]), one count of unlawful possession of
methamphetamine ([CITATION]), and two counts of resisting a peace officer
([CITATION]).
¶5 On January 23, 2023, defendant indicated in open court his desire to pursue a motion to
suppress hearing and the matter was continued for defendant to file his motion. On January 27,
2023, the court ordered that defendant be allowed to view certain videos in anticipation of the
motion to suppress hearing, which the trial court set for February 14, 2023.
¶6 At the February 14, 2023, hearing, Officer Kyle Jensen was called by defendant to testify.
Body camera videos depicting the stop and subsequent interactions between Jensen and defendant
were provided to the court prior to the hearing. Jensen’s testimony and the body camera videos
disclosed the following: Jensen was alone when he initially pulled over defendant’s vehicle on
December 8, 2022, because the vehicle did not have a front plate. Sergeant Belcher arrived shortly
after the vehicle was stopped. Upon pulling over, defendant placed his arm outside the vehicle’s
window. Jensen’s first question to defendant was, “You got a gun in there?” Jensen testified that
he was “[j]ust joking around with [defendant].” Jensen proceeded to ask defendant whether he had
a driver’s license and insurance. Defendant explained that he had a photograph of his license, the
vehicle belonged to his cousin, and defendant was uncertain whether it was insured. Jensen and
defendant had previous interactions, including an interaction earlier that day, where Jensen stated
defendant was “mean mugging” him and gave him “the finger.”
¶7 Jensen stated that he did not need to see a photograph of defendant’s license, then asked
defendant why he had given him “the finger” earlier that day. Defendant explained he was joking
with Jensen. Jensen then asked defendant if he had anything in his vehicle. Defendant replied, “No,
man.” Jensen asked if he could look through the vehicle. Defendant stated the car was not his, and
he “would have kept going if [he] had something” in the vehicle. The conversation continued, with
Jensen asking again whether defendant had anything in the vehicle, and then asking two more
times whether defendant had “dope” on him. Defendant denied that there was anything in the
vehicle or on his person. Jensen then asked, “No pistols in here?” and defendant replied, “No sir,
I would have ran.”
¶8 Jensen then said, “So what’s the issue with me looking through it then real quick? I’ll get
you out of here, three fucking minutes, man,” to which defendant replied, “Because it ain’t even
that serious. I’ll get out though. I’m opening the door, man.” Defendant then opened the door of
the vehicle and stepped out. Jensen turned defendant’s body around and began conducting a pat
down of defendant. Jensen conducted the pat down “[f]or safety,” stating he was “looking for a
weapon.” Initially, defendant’s hands were on the hood of the vehicle. Jensen patted down
defendant’s clothing, including his jacket and sweatpants. Jensen also patted defendant’s “crotch
area” through his clothing and felt a “bulge.” Jensen believed the bulge to be narcotics, so he
placed defendant under arrest. Belcher approached to assist with the arrest, and Jensen told
defendant, “I can feel it, dude.”
¶9 As Jensen began placing defendant’s hands behind his back, defendant resisted, struggling
against the officers, causing defendant, Jensen, and Belcher to fall to the ground. While on the
ground, Jensen and Belcher gained control of defendant and placed him in handcuffs. Jensen
stated, “He’s got dope. It’s in his pants. In his underwear.” Jensen then searched defendant again,
including lifting up defendant’s shirt and patting down defendant’s legs without finding anything.
Defendant was brought to his feet after which he attempted to flee after being searched a second
time. Belcher managed to apprehend defendant before he escaped custody. Jensen placed
defendant in his squad car, and Belcher called for an ambulance based on defendant’s fall. While
defendant was seated in the squad car, Jensen said to Belcher, “He’s got it, like, tucked up in his,
under his nuts.”
¶ 10 Jensen conducted a search of defendant’s vehicle and did not locate any drugs or weapons.
Other officers arrived and asked Jensen, “Is it a gun[?]” to which Jensen replied, “No, it’s dope.”
Jensen then returned to search defendant again, saying, “Hey, I’m gonna get what’s out in your
pants, okay?” Defendant said, “Look,” and Jensen interrupted, saying “[L]et me get what we need
to get and then we can talk, okay?” When defendant did not respond, Jensen said, “Is it in your
underwear?” Defendant responded, “It wasn’t nothing in my underwear.” Jensen then stated,
“Okay. Well, I need to get what I need to get. You hear me? That’s fine. You ain’t got to admit to
me where it’s at, but I need to get it, okay?” Jensen then searched defendant again, this time looking
inside defendant’s pants and underwear by pulling defendant’s elastic waistband outward.
¶ 11 Jensen then began to suspect that defendant had ingested narcotics. Jensen reviewed the
squad car video recording of defendant sitting in the backseat, after which Jensen searched the
backseat and defendant, again finding no contraband. Law enforcement summoned an ambulance
while defendant sat in the rear of Jensen’s squad car for approximately 14 minutes. After an
ambulance arrived, defendant remained and was treated at the scene for another 26 minutes and
then taken to the hospital. Additional body camera footage documented Jensen at the hospital
cataloging various white substances. Jensen testified that he searched defendant’s jacket in the
hospital and felt a “bulge at the bottom in the middle of the back of the jacket.” Jensen then
removed what he determined to be drugs through holes in the jacket’s pocket and back.
¶ 12 Following the hearing, the trial court granted the motion to suppress, finding two
constitutional violations. The first occurred when Jensen impermissibly searched defendant’s
crotch area while conducting the initial pat down for officer safety. The second occurred when
Jensen searched defendant’s vehicle without consent or probable cause. The court observed that,
although there was probable cause to pull defendant over, the stop was “pretextual,” and defendant
did not consent to any of the searches. The court found that the drugs that were eventually found
at the hospital were the fruit of the poisonous tree and suppressed that evidence.
¶ 13 The State filed a motion to reconsider, maintaining that the search of the vehicle was
consensual but arguing that “consent to search the vehicle is not the issue in this case.” Rather, the
State argued that, during the pat down, Jensen felt something in defendant’s crotch area and
attempted to handcuff defendant, but defendant began to wrestle and struggle with Jensen. The
State further argued that “[i]t wasn’t until the defendant was placed under arrest for resisting arrest
and put into the back of the squad car that Deputy Jensen searched inside of the defendant’s
clothing for the contraband that Deputy Jensen felt during the pat down” and that the subject
narcotics were located on defendant’s person, not inside the vehicle. Accordingly, the State argued,
[SEGMENT 2]
“Even if this Honorable Court believes that the search of the vehicle was not consensual, the
narcotics found in the coat that the defendant was wearing when he was arrested for resisting arrest
should not be suppressed.” The court denied the State’s motion to reconsider, after which the State
filed a certificate of impairment and this timely appeal.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the State contends there were no fourth amendment violations and the trial court
erred when it granted defendant’s motion to suppress. In the alternative, the State maintains the
evidence discovered was sufficiently attenuated from any unconstitutional activity to avoid the
exclusionary rule. We apply a bifurcated standard of review to rulings on motions to suppress.
[CITATION] We defer to the trial court’s factual findings
unless they are against the manifest weight of the evidence. [CITATION]
(2008). Factual findings are only against the manifest weight “if the opposite conclusion is clearly
evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented.”
Id. We review the ultimate legal issue—whether suppression is warranted—de novo. [CITATION]
¶ 16 Both the United States and Illinois Constitutions protect individuals from unreasonable
searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Defendant does not
contest the propriety of the initial stop of his vehicle for the front plate violation; rather, at issue is
the constitutionality of a series of searches that occurred after the vehicle was properly stopped
and, more specifically, whether contraband ultimately recovered from defendant’s jacket in the
hospital was properly suppressed as fruit of the poisonous tree.
¶ 17 Considering first the propriety of Jensen’s pat-down search of defendant’s crotch area, we
note that the validity of an investigatory stop is a distinct and separate inquiry from whether a pat-
down search for weapons is valid. [CITATION] That an officer
has reason to stop a person does not automatically justify the further intrusion of a search for
weapons. Id. at 165. An officer may initiate such a search if he “reasonably suspects that he or
another is in danger of attack.” 725 ILCS 5/108-1.01 (West 2022); [CITATION] In such circumstances, an officer may “ ‘tak[e] steps to assure himself
that the person with whom he is dealing is not armed with a weapon that could unexpectedly and
fatally be used against him.’ ” [CITATION].
¶ 18 Assuming for the sake of analysis that Jensen was justified in conducting a pat-down search
for officer safety due to defendant placing his arm outside of the car at the initial stages of the stop
and his abrupt exiting of the vehicle without request, it nevertheless remains that the scope of such
that search must be narrowly tailored to actions reasonably likely to discover weapons that could
be used to harm the officer. [CITATION]. An officer may lawfully pat down a suspect’s
outer clothing and seize objects whose mass or contour make them readily identifiable as a weapon
or contraband. [CITATION]. A search that exceeds this scope and strays into evidence gathering is
constitutionally prohibited ([CITATION]), and the fruits of such a search will be
suppressed. [CITATION].
¶ 19 While it is true that individuals subject to protective pat downs may sometimes hide
weapons in their pants, the trial court found that the search in this case, beginning with the initial
pat down, was more intrusive than an ordinary search for weapons justified by officer safety
concerns. See [CITATION]. Further, the trial
court found that Jensen’s assertion that the pat down was conducted exclusively for officer safety
was belied where, prior to defendant’s exiting the vehicle, he had asked defendant about drugs
multiple times. Immediately after patting down defendant, Jensen told Belcher, “He’s got drugs.
It’s in his pants. In his underwear.”
¶ 20 Under these circumstances, we cannot say the trial court’s finding that Jensen was
searching for drugs and not weapons when he patted down defendant’s crotch area was against the
manifest weight of the evidence. A search for weapons must be limited to “an intrusion reasonably
designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police
officer.” [CITATION]. Here, the court found that Jensen’s pat down of defendant’s crotch
area exceeded that scope. Accordingly, the trial court’s determination that the pat down of
defendant’s crotch area violated defendant’s fourth amendment rights was not erroneous.
¶ 21 The State also contends that the trial court erred in determining that the search of
defendant’s vehicle likewise violated defendant’s fourth amendment rights. In support, the State
observes that a vehicle may be searched incident to arrest where “ ‘officers reasonably believe
evidence relevant to the crime of arrest may be found in the vehicle.’ ” [CITATION]. It was implausible, however, that evidence concerning no front plate or
resisting arrest would be located in the vehicle. Further, given the lack of probable cause for
defendant’s arrest for possession of narcotics prior to the discovery of narcotics at the hospital, it
was likewise unreasonable to believe evidence of narcotics would be located in the vehicle.
Additionally, defendant was handcuffed in Jensen’s squad car where he remained as Jensen left to
search defendant’s vehicle, otherwise precluding the search of his vehicle incident to arrest.
[CITATION]. Accordingly, we agree with the trial court’s assessment
that the vehicle search was also a fourth amendment violation.
¶ 22 Evidence obtained in violation of the fourth amendment is generally inadmissible under
the exclusionary rule. [CITATION]. Once a court determines there has
been a fourth amendment violation, the violation is deemed a “poisonous tree,” and evidence
obtained by exploiting that violation is subject to suppression as “fruit” of the poisonous tree. Id.
To the extent we conclude the circuit court’s findings of fact are not against the manifest weight
of the evidence, we further conclude that it did not err in suppressing the contraband located on
defendant’s person at the hospital as fruit of the poisonous tree.
¶ 23 In reaching this conclusion, we reject the State’s request to consider whether the evidence
seized was sufficiently attenuated from the constitutional violations to excuse its suppression. See
[CITATION] (courts may consider “whether the chain of
causation proceeding from the unlawful conduct has become so attenuated or has been interrupted
by some intervening circumstance so as to remove the ‘taint’ imposed upon that evidence by the
original illegality.”). The State acknowledges that it “never presented the argument of attenuation
below,” but notes that “forfeiture is a limitation on the parties and not the reviewing court.” See
[CITATION] (reviewing court may overlook the principles of
forfeiture when necessary to obtain a just result or maintain a sound body of precedent). However,
beyond noting the possibility that we might excuse its forfeiture, the State has not provided any
argument in support of doing so. See [CITATION] (the State
forfeited attenuation by not raising it in the circuit court after the court determined that defendant’s
arrest was unlawful).
¶ 24 III. CONCLUSION
¶ 25 The judgment of the circuit court of Kankakee County is affirmed.
¶ 26 Affirmed.
2023 IL App (1st) 211649-U
No. 1-21-1649
Order filed November 2, 2023
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 6246
)
JOSE MARTINEZ, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justices Hoffman and Martin concurred in the judgment.
ORDER
¶1 Held: The trial court erred in denying defendant’s motion to suppress evidence of a
firearm, where a police officer’s mere observation of a “bulge” in defendant’s
pocket did not support a reasonable, articulable suspicion that criminal activity was
afoot to justify a stop and search of defendant’s person. We reverse defendant’s
conviction of unlawful use or possession of a weapon by a felon and his sentence.
¶2 Following a bench trial, defendant Jose Martinez was found guilty of unlawful use or
possession of a weapon by a felon (UUWF) and sentenced to seven years in prison. On appeal,
defendant argues the trial court erred in denying his motion to suppress evidence of the firearm No. 1-21-1649
recovered from his person, where the arresting officer lacked the requisite reasonable, articulable
suspicion that criminal activity may be afoot to stop and search him. We agree with defendant and
[SEGMENT 3]
reverse his conviction and sentence.
¶3 Defendant was charged by indictment with one count of armed habitual criminal, two
counts of UUWF, and three counts of aggravated unlawful use of a weapon, premised on an
incident in Chicago on April 7, 2021. The State proceeded on one count of UUWF (720 ILCS
5/24-1.1(a) (West 2020)) and nol-prossed the remaining counts.
¶4 Prior to trial, defendant filed a motion requesting that the trial court suppress all evidence
recovered from him, in particular a firearm, because the arresting police officers lacked the legal
authority to arrest him, search him, and seize the firearm from his person. The trial court held a
combined hearing on defendant’s motion to suppress and a bench trial.
¶5 Chicago police officer Carreon testified that, at the time of the proceeding, he had been
working with the Chicago Police Department for about six years. 1 On April 7, 2021, at about 10:15
p.m., he and his partner Officer Smalec were on patrol in uniform in an unmarked vehicle near the
2500 block of South Christiana Avenue. Smalec was driving the vehicle southbound. From the
passenger’s seat, Carreon saw two men walking northbound on a “well-lit” sidewalk. Carreon’s
view was aided by his flashlight.
¶6 From “[m]aybe less than a car’s length away,” Carreon observed that one of the men,
identified in court as defendant, had a “large bulge” in his “pant pocket” causing the “right pocket
side of the jacket to be weighed down heavily.” Based on his observations, Carreon “exited the
The first names of Officer Carreon and his partner Officer Smalec do not appear in the transcript
of the trial proceedings.
No. 1-21-1649
vehicle and approached, conducted an investigatory stop, believing that [defendant] might be
concealing a firearm in that pocket.” Carreon testified that,
“upon approach, I asked about the – the heavy weighted object in [defendant’s] pocket.
He pointed at it and [sic] conducted a protective pat-down of that pocket. Once I -- once I
became aware that the object in the pocket resembled a firearm, was a heavy metal
object, at that point, he was detained.”
¶7 Carreon testified that he was equipped with a body-worn camera on the date in question.
The State, and subsequently the defense, published the footage from Carreon’s body-worn camera
in court. The footage was entered into evidence and is included in the record on appeal. We have
viewed the footage. There is no audio to the video recording until approximately the 0:20 second
timestamp mark.
¶8 In the body-worn camera footage, Carreon is seen exiting the police vehicle at about the
0:03 second timestamp mark. As Carreon is walking, he shines his flashlight on defendant and
another man, who are walking on a sidewalk at night. Defendant is wearing a black jacket, and his
right hand appears to be slightly raised near the right pocket of his jacket. The other man with
defendant is wearing a red hooded sweatshirt and raising his hands in the air as soon as he looks
in Carreon’s direction.
¶9 As Carreon quickly approaches the two men, defendant also begins to raise his hands to
just above waist-height and slowly turns toward Carreon so that a bulge in the right side of his
jacket can be seen. The right side is weighed down slightly below the left side of the jacket. At
about the 0:09 second timestamp mark, Carreon takes hold of defendant’s right hand with his left
hand and, at the 0:10 second timestamp mark, takes hold of the left side of defendant’s jacket and
No. 1-21-1649
opens it. At about the 0:17 second timestamp mark, Carreon takes hold of defendant’s left arm,
and his partner takes hold of defendant’s right arm. The officers walk defendant toward their
vehicle. At about the 0:19 second timestamp mark, the officers begin handcuffing defendant’s
hands behind his back as defendant is pressed against the police vehicle. The video footage has no
audio until defendant is handcuffed at approximately the 0:20 second timestamp mark, so it is not
clear whether any words were exchanged between Carreon and defendant prior to defendant being
handcuffed. At about the 0:31 second timestamp mark, Carreon removes a firearm from
defendant’s right jacket pocket, and the video clip ends.
¶ 10 After the video evidence was played, Carreon confirmed that he recovered the firearm from
defendant’s right side jacket pocket and stated that defendant was detained at that point. Carreon
testified that defendant was asked whether he had a firearm owners identification (FOID) card or
concealed carry license, and defendant relayed that he had a concealed carry license, but it may be
suspended. After running a name check at the scene, no FOID card or concealed carry license
“came up.” Defendant was then placed into custody. The State entered into evidence the firearm
recovered from defendant, as well as a magazine that was recovered from inside the firearm, and
the ammunition inside the magazine.
¶ 11 On cross-examination, Carreon testified that he was not aware of an outstanding search or
arrest warrant for defendant. When first seen, defendant did not have his hand in his pocket.
Carreon was shown a still image from his body-worn camera, and he confirmed that defendant’s
right hand was visible in the picture. Carreon confirmed that, while sitting in the vehicle, he noticed
the “extremely large” bulge in the right side pocket of defendant’s jacket but did not see the butt
of a firearm. As he approached defendant on foot, Carreon observed what he “believed” to be the
No. 1-21-1649
barrel of a firearm in defendant’s pocket, but did not see any metal. Defendant did not try to run
away or attempt to discard the firearm, and his arm was never outstretched toward Carreon or up
in the air above his shoulders.
¶ 12 Carreon testified that when he reached defendant, he conducted a patdown of that right side
pocket and felt what turned out to be a firearm. Carreon confirmed that defendant was not free to
leave once Carreon conducted the pat down, but stated defendant “was not detained when
[Carreon] was approaching him.” Carreon confirmed that he did not ask defendant if he had a
FOID card or concealed carry license until defendant was handcuffed and “detained” outside the
vehicle. Carreon denied that he searches “everybody with an extremely large bulge in their coat.”
¶ 13 In closing, defendant’s counsel argued that the officers lacked a reasonable suspicion to
approach and patdown defendant, and they lacked probable cause to arrest him. He asserted that
“at best” the officers stopped him on “a hunch,” and, “at worst,” the stop was “pretextual.”
Defendant argued Carreon “saw two Hispanic men walking on the street, and he immediately ***
did a pat-down.”
¶ 14 Defendant’s counsel recounted that while the officers were in a moving vehicle, Carreon
saw defendant wearing a dark jacket in the evening. Defendant did not run or “take any actions”
that made him a threat to the officers. Nonetheless, Carreon “jumped out of that car and ***
immediately beelined for [defendant].” Defendant further argued that the “imprint of a barrel”
could have looked similar to the rectangular imprint of a phone or stapler, and Carreon could not
have seen any imprint as defendant had his hand by his pocket, “if not in his pocket.” He further
asserted that the observation of a firearm was not itself evidence of a crime, and the officers
improperly arrested defendant first and then determined licensure later, which is no longer legal.
No. 1-21-1649
Defendant therefore asked that the court grant his motion to suppress or, alternatively, find him
not guilty.
¶ 15 The State argued that the court should deny defendant’s motion to suppress, because there
were “no statutory constitutional violations,” and find him guilty. The State asserted the trial court
had the “entire encounter” on video, so “this isn’t speculative, we’re not dealing with
hypotheticals, we’re not dealing with what if situations.” It argued that Carreon observed
defendant’s coat “was weighed down, not by a light object, not by a large object, but by a heavy
object.” The officers then “detained [defendant], removed the firearm and *** placed him into
custody after they conducted an investigation and it was found out that the Defendant did not have
a valid FOID or Concealed Carry license.”
¶ 16 The trial court denied defendant’s motion to suppress and found him guilty of UUWF. The
court noted Carreon’s testimony that he saw defendant “walking with a heavy object in his pocket.”
As Carreon approached, he observed “the outline of a barrel in that pocket” and then detained him.
The court found “[t]here certainly is enough for a Terry stop there.” The court then stated Carreon
“conducted a further investigation, and retrieved a weapon, and then *** asked [defendant]
whether he had a Concealed Carry.” Defendant responded he did, but “that was later found out to
be not true, and then [Carreon] placed him under arrest.” The court concluded that there was
[SEGMENT 4]
sufficient basis to initiate a Terry stop, and “that the further investigation led to probable cause.”
¶ 17 Defendant filed a motion to set aside the guilty finding or, in the alternative, for a new trial,
asserting that the trial court erred in denying his motion to suppress, and that the State failed to
prove him guilty beyond a reasonable doubt.
No. 1-21-1649
¶ 18 At a hearing on the motion, defendant reiterated his prior argument and added that Carreon
did not ask if defendant had a license to carry the firearm until after defendant was handcuffed by
the police vehicle. He asserted that the large bulge did not justify an investigatory stop because
“anything could create a large bulge in a coat,” and defendant was detained when Carreon “jumped
out of the car.” The State argued that the body-worn camera footage “clearly showed an L-shaped
object” weighing down defendant’s coat. It stated that the court had the opportunity to judge the
officers’ credibility and look at the evidence, and its findings should not be disturbed.
¶ 19 The trial court denied defendant’s motion. Noting defendant was eligible for Class X
sentencing, the court sentenced him to seven years in prison for UUWF.
¶ 20 On appeal, defendant argues the trial court erred in denying his motion to suppress the
firearm recovered from his person, where he was subjected to a detention and search that violated
the fourth amendment. He claims that Officer Carreon lacked any articulable basis to believe that
he had or was committing a criminal offense because walking on the street with a bulging pocket
was not a viable reason to stop or search him.
¶ 21 A defendant filing a motion to suppress evidence bears the burden of making a “prima
facie case that the evidence was obtained by an illegal search or seizure.” [CITATION], ¶ 22. When reviewing a trial court’s ruling on a motion to suppress evidence, we apply
a bifurcated standard of review. [CITATION]. Under that
standard, we review the trial court’s findings of historical fact for clear error, giving “great
deference” to the court’s factual findings and reversing them only if against the manifest weight
of evidence. Id. We review de novo the court’s ultimate legal determination on whether
suppression is warranted. Id.
No. 1-21-1649
¶ 22 The fourth amendment to the United States Constitution, and the Illinois Constitution,
guarantee the “right of individuals to be free from unreasonable searches and seizures.” [CITATION]
“Reasonableness under the fourth amendment generally requires a warrant supported by probable
cause.” [CITATION] However, “ ‘[w]hen faced with special law
enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, *** certain
general, or individual, circumstances may render a warrantless search or seizure reasonable.’ ” [CITATION] (quoting [CITATION])
¶ 23 “For purposes of the fourth amendment, an individual is seized when an officer by means
of physical force or show of authority, has in some way restrained the liberty of a citizen.” (Internal
quotation marks omitted.) [CITATION] “It is well settled that not every encounter
between the police and a private citizen results in a seizure.” Id. ¶ 544. Courts have categorized
police-citizen encounters into three tiers: (1) the arrest of a citizen, which must be supported by
probable cause; (2) a “temporary investigative seizure,” or Terry stop, conducted pursuant to [CITATION]; and (3) a consensual encounter, which involves “no coercion or
detention” and thus implicates no fourth amendment interests. [CITATION]
¶ 24 Under Terry, “ ‘where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot ***,’ the
officer may briefly stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming
or dispelling his suspicions.” [CITATION] (quoting [CITATION])
No. 1-21-1649
392 U.S. at 30). In order to properly conduct a Terry stop, “[t]he officer must have a reasonable,
articulable suspicion that criminal activity is afoot.” (Internal quotation marks omitted.) [CITATION], ¶ 9. Though this standard is “less demanding” than the probable cause
standard, “an officer’s suspicion must amount to more than an inchoate and unparticularized
suspicion or hunch of criminal activity.” (Internal quotation marks omitted.) Id.
¶ 25 The decision to make an investigatory stop is based on the totality of the circumstances.
[CITATION], ¶ 14. “The investigatory stop must be justified at its
inception, and the officer must be able to point to specific and articulable facts that, taken together
with rational inferences from those facts, reasonably warrant that intrusion.” [CITATION], ¶ 24 (citing [CITATION]). A finding of
reasonable suspicion “must be based on commonsense judgments and inferences about human
behavior, and due weight must be given to the reasonable inferences the officer is entitled to draw
from the facts in light of his experience.” [CITATION], ¶ 19.
¶ 26 We find that defendant was subjected to an unlawful stop under Terry principles. The initial
encounter was not, as the State urges, a “field interview” akin to a consensual encounter. Rather,
it was a seizure.
¶ 27 The video evidence reflects that Carreon exited the police vehicle while in his uniform
(0:03 second timestamp mark) and rapidly approached defendant and the other man while shining
his flashlight on them. Within 6 seconds after leaving his vehicle, Carreon had his hand on
defendant (0:09 second timestamp mark). “[A] person has been seized when, considering the
totality of the circumstances, a reasonable person would believe he is not free to leave.” [CITATION], ¶ 57. When someone is approached at night by a fast-moving, uniformed
No. 1-21-1649
police officer shining a light on them, the person would reasonably believe they are not free to
leave when faced with this show of authority. See [CITATION] (an individual is
“seized” for purposes of the fourth amendment when an officer, by means of physical force or
show of authority, has in some way restrained the liberty of a citizen).
¶ 28 Indeed, the video shows that defendant and the other man stop immediately as Carreon
approaches. The other man raises his hands into the air while defendant begins to raise his hands.
As such, a seizure occurred during this initial encounter, as defendant and the other man reasonably
would have believed they were not free to leave. Id. The conclusion that the initial encounter was
a seizure rather than consensual is reinforced by Carreon’s testimony that, based on his
observations of defendant walking at night with a large bulge in his pocket, Carreon “exited the
vehicle and approached, conducted an investigatory stop.” (Emphasis added.)
¶ 29 We thus turn to whether that seizure was reasonable. We find that it was not.
¶ 30 In [CITATION], our supreme court recently held that, where police
officers saw the defendant running in the rain “holding the front of his sweatshirt,” which had a
“large bulge,” the officers lacked reasonable suspicion to stop and frisk the defendant to “ ‘see
what was the bulge.’ ” Id. ¶¶ 37-40. The court noted that, based on the testifying officer’s
testimony, the officers were not responding to a particular report of crime in the area when they
happened upon the defendant, and neither officer stated that the neighborhood was a high-crime
area. Id. ¶ 39. Further, the defendant had been running from the first moment the officers saw him,
i.e., his continued running could not be seen as unprovoked flight from the officers. Id. Lastly, the
testifying officer “did not testify that defendant's conduct conformed with his knowledge of
- 10 - No. 1-21-1649
criminal activity. He simply wanted to know why defendant was running and what item caused a
bulge in defendant's pocket.” Id.
¶ 31 There was even less evidence supporting reasonable suspicion in the case at bar. The basis
for Officer Carreon’s seizure of defendant was that he saw a large bulge in defendant’s coat pocket
that weighed his coat down slightly as defendant and another man walked down a well-lit sidewalk
at about 10:15 p.m. This was the sole reason that the uniformed Carreon rapidly approached the
men and shone his flashlight on them. The men were not walking fast, and there was no testimony
that the officers were in a high crime area or responding to the report of a crime. The video shows
that, within 6 seconds of exiting the vehicle and approaching defendant by the sidewalk, Carreon
had already placed his hand on defendant.
¶ 32 Carreon offered no observations to support a reasonable, articulable suspicion that criminal
activity was afoot to justify the initial seizure of defendant. See [CITATION], ¶ 31 (“There is nothing criminally suspicious about walking down the street with one’s
hands in one’s pockets,” and “[p]utting something in one’s pockets *** is not a hallmark of
criminal activity”). For example, Carreon did not offer testimony that defendant had engaged in
any unusual behavior or furtive movements from which it was reasonable to infer that defendant
[SEGMENT 5]
unlawfully possessed whatever was in his pocket or that he was planning a crime. See [CITATION], ¶¶ 45-46. Moreover, as this court has noted, even had Carreon
suspected that the bulge in defendant’s pocket was a firearm, “police cannot simply assume a
person who possesses a firearm outside the home is involved in criminal activity.” [CITATION], ¶ 40. Therefore, given the absence of any reasonable,
articulable suspicion that criminal activity was afoot, defendant was unlawfully stopped upon his
- 11 - No. 1-21-1649
initial encounter with Carreon. See [CITATION]; see also [CITATION] (officer lacked reasonable suspicion where the defendant only
walked away from the officer with his hands in his pockets).
¶ 33 The State argues that the “consensual encounter evolved into a Terry stop when Officer
Carreon observed the imprint of the barrel of a firearm in defendant’s pocket,” but fails to explain
how the mere observation of defendant with a bulge in his pocket supported a reasonable,
articulable suspicion that criminal activity was afoot, in the first place. Accordingly, the stop of
defendant was unlawful under Terry given the absence of a reasonable, articulable suspicion that
criminal activity was afoot.
¶ 34 The State argues that Carreon was justified in conducting a protective patdown of
defendant in order to assure the officers’ safety, as Carreon believed that defendant was carrying
a firearm. It is not clear from the record when Carreon believed the bulge in defendant’s pocket
resembled a firearm, as Carreon’s testimony on the subject changed multiple times. On direct
examination, he testified that he patted defendant down and, once he “became aware that the object
in the pocket resembled a firearm,” detained defendant. (Emphasis added.) At yet another point,
he testified that he initially exited his vehicle because, based on the bulge, defendant “might be”
concealing a firearm. On cross-examination, he stated that, as he approached defendant on foot,
he saw the bulge and “believed” it resembled a firearm. Ultimately, the trial court found that
Carreon believed defendant possessed a firearm at the time he approached defendant and
subsequently performed a patdown. See [CITATION] (in reviewing the court’s
findings at a suppression hearing, this court must give “great deference” to the trial court’s
findings). Indeed, after performing a valid stop, an officer is justified in performing a protective
- 12 - No. 1-21-1649
patdown where the officer reasonably believes the defendant is armed and dangerous. See [CITATION],
¶ 19 (“a protective patdown of a properly detained citizen for possible
weapons” conducted after a stop has been initiated is justified where the officer had “a reasonable
belief that the defendant was armed and dangerous”). However, “the right to perform a protective
search presupposes the right to make the stop,” and “[t]he police may only perform a protective
search if they are entitled to stop the person in the first place.” [CITATION],
¶ 17.
¶ 35 In this case, because Carreon lacked a reasonable, articulable suspicion that criminal
activity was afoot to lawfully seize defendant, he also could not have lawfully performed a
protective patdown pursuant to Terry. See [CITATION], (“In
order for a frisk to be constitutionally reasonable, (1) the stop must be proper, (2) the officer must
have reason to know that the defendant is armed and dangerous, and (3) the scope of the search
must be strictly limited to a search for weapons.”). Moreover, the subsequent patdown and
recovery of the firearm could not serve as a basis to justify the initial encounter. See [CITATION], (justification for a search under Terry is for protection and
“not to gather evidence”). Accordingly, the ensuing patdown of defendant exceeded the lawful
bounds of Terry. And in this case as in Lozano, where the improper stop and search took place “in
moments,” there were no intervening circumstances which removed the taint from the original
illegality. [CITATION], ¶ 46. The recovered firearm was subject to suppression as
the ”fruit of the poisonous tree.” Id.
¶ 36 We therefore conclude the trial court erred in denying defendant’s motion to suppress the
firearm recovered from his person following an unlawful stop and patdown under Terry. Because
- 13 - No. 1-21-1649
the State cannot prevail on remand without the suppressed evidence, we reverse defendant’s
conviction and sentence.” [CITATION] ¶¶ 47-49 (reversing the defendant’s convictions outright where the
trial court erred in denying the defendant’s motion to suppress evidence).
¶ 37 For the foregoing reasons, we reverse defendant’s conviction and sentence.
¶ 38 Reversed.
- 14 -
```plaintext
IL App (1st) 232064-U
No. 1-23-2064B
Filed February 20, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
CR 8296-01
)
RONDELL COLEMAN ) The Honorable
) Thomas J. Byrne,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Justice Hoffman concurred in the judgment.
Justice Ocasio dissented.
ORDER
¶1 Held: The trial court’s finding that no conditions of pretrial release could mitigate the
threat the defendant posed to the community was not against the manifest weight
of the evidence.
¶2 Rondell Coleman appeals the circuit court’s order denying his “Motion to Grant Pretrial
Release with Conditions.” Specifically, he argues the circuit court erred in finding that no
conditions of pretrial release could mitigate the threat he posed to the community. For the following
reasons, we affirm.
``` No. 1-23-2064B
¶3 Coleman was charged with unlawful use of a weapon (UUW) in 2022 stemming from an
incident in which he was alleged to have illegally possessed a handgun with an affixed laser sight.
After pleading guilty, Coleman was placed in the First Time Weapon Offense Program (Program)
(730 ILCS 5/5-6-3.6 (West 2022)) for a period of two years. Pursuant to the Program, the circuit
court deferred further proceedings pending either completion of the Program or the filing of a
petition alleging violation of a term or condition of the Program. See id. § 5-6-3.6(c).
¶4 In July 2023, Coleman was arrested in connection with a robbery that occurred on April 1,
2023. He appeared before the circuit court on July 27, 2023. At that time, the State filed a petition
alleging that Coleman violated the conditions of the Program by committing additional felony
offenses. The court ordered Coleman detained. 1
¶5 The next month, Coleman was charged in a separate case (no. 23 CR 9236) with robbery,
theft, aggravated battery, and unlawful restraint, stemming from the April 1 incident. The circuit
court set a monetary bail condition requiring the posting of a $50,000 bond. 2
¶6 Subsequently, on October 18, 2023, Coleman filed a “Motion to Grant Pretrial Release with
Conditions.” He appeared before the circuit court the same day. Through counsel, Coleman
indicated that he was not challenging the $50,000 bond condition in his new case but was only
seeking relief from the no-bail order in his UUW case. In the written motion and oral presentation,
defense counsel contended that the Pretrial Fairness Act 3 (PFA) (P.A. 101-652, § 10-255, eff. Jan.
1, 2023) (amending article 110 of the Code of Criminal Procedure of 1963), which became
effective on September 18, 2023,4 applied to Coleman’s UUW case. Therefore, counsel argued,
A report of this proceeding is not in the record before us.
A report of this proceeding is not in the record before us.
Pretrial Fairness Act is an unofficial title but the legislation is commonly referred to by this name.
[CITATION]
See [CITATION]
No. 1-23-2064B
the court was required to consider releasing Coleman from custody with appropriate conditions
pending a hearing on or other disposition of the pending petition. Alternatively, the defense
submitted that even if the PFA did not apply, the court retained discretion to release Coleman on
the pending petition and the considerations set forth in the PFA were relevant to the court’s
determination.
¶7 In accord with the PFA, Coleman argued that the State could not demonstrate that he “poses
[SEGMENT 6]
a real and present threat to the safety of any person or persons or to the community.” See [CITATION]. To support that Coleman did not pose a “real and present threat,”
defense counsel noted that Coleman, age 19, actively participates with a neighborhood religious
ministry known as Precious Blood Ministry of Reconciliation (PBMR), which is dedicated to
restorative justice. Counsel further noted that Coleman helps care for his diabetic mother and
maintains strong familial and community relationships despite hardships, including poverty, losing
his father at a young age, and losing close friends to violence. In addition, Coleman is a high school
student with good attendance and no disciplinary record. Further, the offenses charged in
Coleman’s new case did not allege that a firearm or other weapon was involved.
¶8 Even if Coleman were found to pose a threat, counsel argued, the State cannot prove that
“no condition or combination of conditions [of release] can mitigate” that threat. See [CITATION]. His motion asserted that, in addition to conditions the court could impose, PBMR, his
legal team, and his family have formulated a “strong release plan that will provide structure and
support.” The plan would “ ‘provide more intense oversight’ and ‘double down on structuring
[Coleman’s] days.’ ” Conditions such as a curfew and requirements to attend school, programming,
and therapy would fill days from morning to night. Coleman attached letters from six individuals
associated with PBMR and a school counselor expressing their positive experiences with and
No. 1-23-2064B
assessments of Coleman as well as their commitment to supporting him if he is released from
custody. He also attached a six-page report compiled by Linsday Perlmutter, a licensed clinical
social worker associated with a University of Loyola Chicago Law School clinic. Perlmutter’s
report gives a comprehensive account of Coleman’s background, his circumstances before his July
arrest, and programming he participated in while held in the Cook County jail. She further
outlines a “Release Plan” and recommends these conditions as “the best intervention” for
Coleman. In addition, Coleman attached certificates and transcripts indicating the programming
he completed while incarcerated. Based on the exhibits supporting his motion, Coleman argued
that the proposed release plan would mitigate any safety threat the court might find him to pose.
¶9 The State argued that the PFA did not apply to the pending petition in the UUW case. The
State agreed, however, that the court retained discretion to release him but argued it should exercise
its discretion to continue detaining him. Further, the State indicated that it would have filed a
petition to detain Coleman if he had requested to be released in his new case. In response to the
court’s question, the State indicated it would file a petition to detain Coleman in the UUW case if
the PFA were to apply.
¶ 10 Nonetheless, the State argued that the facts of the new case demonstrated that Coleman
posed a danger to the community and no condition or set of conditions could “guarantee the safety
of any individual or the community.” According to the State’s proffer, Coleman went to a car wash
and attacked an employee. He repeatedly punched and kicked the 59-year-old man while
demanding he hand over money. The victim had collected approximately $2200 in rent payments
earlier that day, mostly in $100 bills. A co-worker at the car wash had contacted Coleman to inform
him that the victim possessed a large amount of cash. After the beating, Coleman stole the victim’s
wallet and fled. Less than two hours later, Coleman posted an image of himself on social media
No. 1-23-2064B
holding $100 bills along with a caption referring to the robbery. The victim sustained serious
injuries and was admitted to the hospital. When police officers arrived at Coleman’s home on
May 2 to arrest him, Coleman locked the door and refused their commands. 5 Coleman dropped his
cellphone during the encounter, which police recovered. A search of the phone revealed
communications between Coleman and the victim’s co-worker preceding the robbery.
¶ 11 The State noted that the Program afforded incentive to comply with its conditions,
including to not commit additional offenses. Had he successfully completed the Program, Coleman
would have avoided a conviction. See [CITATION] (providing that “[u]pon
fulfillment of the terms and conditions of the Program, the court shall discharge the person and
dismiss the proceedings against the person.”). Additionally, the State noted that the significant
community support Coleman relies on was already in place before and during the time of the
robbery. Thus, the State submitted that no conditions of release could mitigate the threat Coleman
poses to the safety of the community.
¶ 12 Defense counsel responded that Coleman would be subject to more stringent conditions if
released than those he was under at the time of the robbery. He further noted that the PFA
contemplates that detention only be ordered as a last resort when no condition or combination of
conditions can mitigate any threat the court might find that Coleman poses. Counsel submitted that
the court need not resort to ordering Coleman detained since adequate conditions exist to mitigate
the threat he posed.
¶ 13 In ruling on Coleman’s motion, the court noted that when Coleman was placed in the
Program pursuant to his guilty plea agreement, the State agreed to forgo a UUW conviction and a
The State’s proffer included that Coleman’s “probation officer” instructed him by phone to
surrender. As we will explain later, the Program is not probation. It appears, however, that the Cook County
Circuit Court’s probation department administers the Program.
No. 1-23-2064B
potential extended sentencing term based on Coleman’s possession of a laser sight. The court
observed that the many people supporting him were doing so in 2022 when he pled guilty in the
UUW case and in 2023—when Coleman was alleged to have conspired with the victim’s
co-worker to commit a “vicious attack” on the 59-year-old man. The court continued:
“Even looking at this case with the Pretrial Fairness Act applying to the probation
case, it is my judgment that this individual does pose a serious threat to the safety of the
community, not just the 59-year-old man *** but any person that presents themselves as
an easy target for the defendant.
It’s my judgment also that there are no conditions in light of his choices following
the weapons case, in light of all he had by way of support of those people here today and
his support system at the time I explained to him what the first-time weapons offender
would mean for him if he took advantage of it, if he took advantage of the structure that
was in place.
It’s clear to the Court that there are no conditions short of detention that would
protect society.”
¶ 14 Coleman filed a timely notice of appeal on October 30, 2023, pursuant to [CITATION]. His notice of appeal indicated two grounds for relief. First,
Coleman argued the State failed to prove he poses a real and present threat to the safety of any
person or persons or the community. Specifically, he contends the State failed to show that his
criminal or social history tends to indicate a “ ‘violent, abusive or assaultive nature’ ” and he
presented contrary evidence demonstrating a “caring and kind nature.” Second, Coleman asserted
that the State failed to prove that no conditions or combination of conditions can mitigate any
threat he poses where he presented “strong evidence of the support structure he would have if
No. 1-23-2064B
released” along with “stringent conditions” the court could impose. For relief, Coleman requested
that this court either order him released with conditions or remand the matter to the circuit court
to order him released with the “ ‘least restrictive conditions.’ ”
¶ 15 Subsequently, Coleman filed a supporting memorandum. See [CITATION] (providing
for the filing of a memorandum in lieu of an appellate brief). The memorandum argued that (1)
defendants accused of violating the conditions of the Program, like Coleman, are subject to the
PFA pending resolution of a filed petition and (2) the circuit court’s finding that the proposed
release plan could not mitigate any threat he posed to the community is against the manifest weight
of the evidence. The memorandum offers no argument challenging the circuit court’s finding that
Coleman poses a real and present threat to the safety of any person or persons or the community.
The State did not file a responsive memorandum.
¶ 16 To argue that the PFA applies in his circumstances, Coleman relies on section 5-6-4(b) of
the Unified Code of Corrections (Unified Code), which provides:
“[t]he court shall admit the offender to pretrial release pending the hearing unless the
alleged violation is itself a criminal offense in which case the offender shall be admitted to
pretrial release on such terms as are provided in the Code of Criminal Procedure of 1963,
as amended.” 730 ILCS 5/5-6-4(b) (West 2022).
Section 5-6-4, however, applies to violations of probation, conditional discharge, supervision, or
county impact incarceration. See id. § 5-6-4(a). Placement in the First Time Weapon Offense
Program does not qualify as any of those four dispositions. Coleman, the State, and the trial court
[SEGMENT 7]
all referred to placement in the Program as probation. This is inaccurate. “Probation” means “a
sentence or disposition of conditional and revocable release under the supervision of a probation
officer.” 730 ILCS 5/5-1-18 (West 2022). Probation is a sentence imposed following a conviction.
No. 1-23-2064B
See id. § 5-1-19 (defining “Sentence” as “the disposition imposed by the court on a convicted
defendant.”). The Program is not a form of probation since it is not a sentence imposed following
an entry of a judgment of conviction. See id. § 5-1-5 (defining “Conviction” as “a judgment of
conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an
offense”). Rather, the Program is a form of diversion. See [CITATION] (contemplating
“the creation of diversion programs for non-violent offenders”). “[D]iversion programs are
alternative procedures to the traditional process of prosecuting criminal defendants and are
intended to augment the criminal justice system where prosecution would be counterproductive,
ineffective, or unwarranted.” Debra T. Landis, Annot., Pretrial diversion: statute or court rule
authorizing suspension or dismissal of criminal prosecution on defendant's consent to noncriminal
alternative, 4 A.L.R. 4th 147, § 2(b) (1981). The Program provides that upon an eligible
defendant’s guilty plea to UUW, “the court, with the consent of the defendant and State’s Attorney,
may, without entering a judgment, sentence the defendant to complete the First Time Weapon
Offense Program.” [CITATION]. A defendant may be placed in the Program for a period
of 6 to 24 months. Id. § 5-6-3.6(d). After placement in the Program, the court defers further
proceedings until either the conclusion of the period or the filing of a petition alleging a violation
of a term or condition of the Program. Id. If the defendant has violated a term or condition, the
court may enter judgment on its original finding of guilt and sentence the defendant as provided
by law for UUW. Id. If the defendant fulfills the Program’s terms and conditions, the court must
discharge them and dismiss the proceedings. Id.
¶ 17 Nevertheless, we believe the PFA applies to Coleman’s situation. Section 110-2 of the Code
of Criminal Procedure of 1963 provides that “[a]ll persons charged with an offense shall be eligible
for pretrial release before conviction.” (Emphasis added.) [CITATION]. As
No. 1-23-2064B
we noted, a defendant placed in the Program is not convicted because no judgment has been
entered. Such a defendant will only have a UUW conviction entered if the defendant is later found
to have violated the terms or conditions of the Program. As we noted, upon a defendant’s placement
in the Program, their UUW case is essentially continued until either the conclusion of the period
or the filing of a petition alleging a violation. Since Coleman has been charged with an offense and
has not been convicted, he is among the “all persons” eligible for pretrial release as contemplated
in section 110-2, which is to be liberally construed to effectuate the purposes of the PFA. 725 ILCS
/110-2(e) (West 2022).
¶ 18 The PFA’s applicability is only a threshold finding in our disposition of this appeal. Its
applicability also means pretrial release can be denied pursuant to section 110-6.1 (id. § 110-6.1).
Id. § 110-2(a). The State made a proffer and presented argument in accord with section 110-6.1,
despite taking the position the PFA did not apply, and the court applied that section’s standards in
ruling on Coleman’s motion.
¶ 19 Coleman’s appeal focuses on only one of the findings required to deny pretrial release—
that no conditions of release can mitigate the threat to the safety of the community. See
id. § 110-6.1(e)(3). Thus, we confine our analysis to this issue.
¶ 20 Coleman argues that the circuit court’s finding that the proposed release plan could not
mitigate any threat he posed to the community is against the manifest weight of the evidence. We
agree that manifest weight of the evidence is the appropriate standard. The trial court’s
determination as to whether less restrictive conditions can mitigate the threat a defendant poses to
a person or the community involves a factual finding. Generally, we will reject the court’s factual
findings only if against the manifest weight of the evidence. [CITATION], ¶ 29. “A finding is against the manifest weight of the evidence where the opposite conclusion is
No. 1-23-2064B
clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence
presented.” (Internal quotation marks omitted.) [CITATION]. We
recognize that other panels of this court have determined this finding should be reviewed under an
abuse of discretion standard. See, e.g., [CITATION]. Those
decisions may have conflated factual findings with the trial court’s ultimate decision regarding
detention or conditions of release. An abuse of discretion standard properly applies to the latter,
but not the former. See [CITATION] (applying “twofold”
review: the manifest weight standard for the trial court’s factual findings and abuse of discretion
to the ultimate determination regarding pretrial release). To be sure, a court abuses its discretion
when its decision relies on a factual finding that is against the manifest weight of the evidence.
[CITATION] (“an abuse of discretion occurs where the trial court’s
decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree
with it.”). We agree that we do not review the evidence anew ([CITATION]), the trial court’s determination “involves the trial judge’s reasoning and opinion” ([CITATION]), and this court is not in a superior position to weigh the factors
and make the required individualized decisions (id. ¶ 67). Yet, we believe the manifest weight
standard affords the appropriate level of deference to the trial court. In instances where it is not
clearly evident whether less restrictive conditions can mitigate the threat a defendant poses to a
person or the community, we will not substitute our judgment for the trial court’s. But, to provide
meaningful review, we should reverse when the opposite conclusion is clearly evident.
¶ 21 Here, Coleman argues the circuit court erred in determining that less restrictive measures
could not mitigate the risk he posed. He notes that the court, in so finding, pointed to the fact that
No. 1-23-2064B
his support structure was in place at the time of the robbery. Coleman contends his motion
proposed additional conditions and measures beyond the support structure already in place at the
time he was charged with the new crime. He presented a detailed “strong release plan” that would
“double down on structuring [his] days.” Family and PBMR personnel would “hold him
accountable every single day to be where he was supposed to be.” Along with a curfew and
electronic monitoring, Coleman would present “a very low risk of recidivism” under his proposed
release plan. According to Coleman, GPS location monitoring would provide a strong deterrent to
commit robberies “not by ensuring police could respond before or during a robbery, but by making
it clear to Coleman that they would be able to conclusively prove he performed them after the
fact.” (Emphasis in original). Thus, the “easy targets” that concerned the court would not exist.
Coleman further argues that the State’s proffer showed Coleman to be “a person who had not
seriously considered the possibility of getting caught.” A GPS monitor, however, would be a
“constant reminder” that police know where he is and consequences will follow if he commits a
crime.
¶ 22 Coleman relies on the fact that he put forth a release plan as an available alternative to
detention. But merely suggesting an alternative to detention does not necessarily mean that
alternative is sufficient to mitigate a defendant’s safety threat. Nor does the mere possibility of an
alternative make the court’s decision to order detention error. Although the proposed release plan
may be more stringent than the conditions Coleman was under when the robbery occurred, the trial
court could reasonably find that even more stringent conditions were still insufficient to mitigate
the threat he poses. Thus, we are unpersuaded that the trial court’s finding was against the manifest
weight of the evidence.
No. 1-23-2064B
¶ 23 Additionally, the trial court did not solely rely on the fact that the same support structure
was in place when the robbery occurred in finding less restrictive conditions could not mitigate
the safety threat Coleman poses. It also noted the nature and circumstances of the robbery,
Coleman’s criminal history, and that Coleman was a participant in the Program at the time. The
PFA instructs trial judges to take these factors into account. See [CITATION].
¶ 24 Last, Coleman’s memorandum asserts he is “a person who had not seriously considered the
possibility of getting caught” and a GPS monitor will remind him of consequences for committing
[SEGMENT 8]
a crime. Coleman did not make this exact argument before the trial court. Nonetheless, the court’s
remarks indicate that it believed his UUW case and placement in the Program were sufficient to
impress upon Coleman that he could face consequences for committing new crimes. Thus, the
court could reasonably find that the option to release Coleman with GPS monitoring would not
mitigate the threat he poses. In addition, the fact that Coleman posted an image of himself holding
evidence of the robbery with a caption referring to it on social media weighs against believing that
the risk of “getting caught” is an adequate deterrent.
¶ 25 For these reasons, we affirm the judgment of the trial court denying Coleman’s motion for
pretrial release.
¶ 26 Affirmed.
¶ 27 JUSTICE OCASIO, dissenting:
¶ 28 The State accused Rondell Coleman of violating the terms of his First Time Weapon
Offender Program ([CITATION]) by committing a robbery, and the trial court ordered him detained until it resolves that accusation. The majority reviews that decision to detain
by the manifest weight of the evidence. For the reasons recently and persuasively articulated by
No. 1-23-2064B
Justice David Ellis, I believe that, except for findings of historical fact, detention orders should be
reviewed de novo. See [CITATION] Under that standard, I would hold that the State had failed to carry its burden of
proving by clear and convincing evidence that the tightly structured release plan proposed by
Coleman, in combination with verification through GPS monitoring, was not adequate to mitigate
any threat of safety that Coleman might present to the community. Accordingly, I respectfully
dissent.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
[CITATION]
Order filed January 16, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-22-0456
v. ) Circuit No. 21-CM-975
)
BRANDON L. TATUM, ) Honorable
) Chrystel L. Gavlin,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Peterson and Davenport concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The State presented insufficient evidence to convict the defendant of resisting a
peace officer.
¶2 The defendant, Brandon L. Tatum, appeals his conviction of resisting a peace officer,
arguing that the evidence was insufficient to find him guilty beyond a reasonable doubt.
¶3 I. BACKGROUND ¶4 The State charged the defendant by information with resisting a peace officer (720 ILCS
5/31-1(a), (a-5) (West 2020)) in that he knowingly resisted “a peace officer engaged in the
execution of his official duties” when the defendant “pulled his arm away during handcuffing.”
The matter proceeded to a jury trial.
¶5 Officer Noe Mozo testified that on May 11, 2021, he was being field trained by Officer
Antwane Windmon for the Metra Commuter Agency while they patrolled the Metra stations.
General patrol duties included checking for “property damage, people sleeping inside the shelters,
and just anything that can be considered foul play.” At approximately 2 a.m., Mozo noticed a man
sleeping on a bench at the Joliet station while on his way to another station. Mozo did not stop at
that time. Approximately 30 or 40 minutes later, Mozo returned and observed “the same individual
sleeping on the same bench in the same form.” The defendant was lying on a bench with a blanket
covering his feet to his neck. When Mozo inquired why the defendant was at the station, the
defendant responded that he did not “have to tell” Mozo anything. The defendant refused to
provide his identification after multiple requests. Mozo also requested several times that the
defendant show his hands, which the defendant refused. Mozo explained that whether he could
“see a person’s hands” is a matter of officer safety. Based on the defendant’s “non-compliance,”
the officers went “hands on” and “plac[ed]” the defendant on the ground. Mozo was unable to gain
control of the defendant’s left arm, which was “tucked *** under [the defendant’s] chest,” and the
defendant was “very tense” and “kept pulling away.” Eventually, Windmon forced the defendant’s
compliance by using a taser.
¶6 On cross-examination, Mozo indicated that he could not identify the defendant as the
person lying on the bench when he first passed the station. Mozo testified that the train station was
a known location for loitering and trespassing. However, the station did not have any no trespass
signs or notices, the officers gave no verbal orders to the defendant to vacate the premises, and
they had not received any complaints about the defendant trespassing. Mozo explained that “[t]he
whole point of *** making contact was to gain experience seeing that I was a relatively new
officer, and the intention was to *** inform [the defendant] that he couldn’t be at the station.”
Mozo acknowledged that potential patrons must be on the platform to board the train. Counsel
asked if Mozo had “any reason to believe that there was a weapon underneath” the defendant’s
blanket. Mozo stated, “[w]e asked him to see his hands. Normally people that aren’t hiding
anything or don’t have anything usually show me their hands.” Mozo also stated that “the way that
[the defendant] was conducting himself *** alerted [Mozo] and alerted *** Windmon that [the
defendant’s] hands were underneath the blanket.” Following a search of the defendant and his
items, the officers did not locate any weapons.
¶7 Windmon testified that he approached the defendant for a trespassing investigation because
the station was closed and the trains were not running. Upon contact, the officers asked the
defendant to sit up and show his hands for officer safety and to “make sure he didn’t have any
weapons.” Windmon explained that the officers
“didn’t know what was under the [blanket]. [The defendant] could have had a
weapon, a gun. It could have been anything. So just to make sure he didn’t have
anything, we wanted to see his hands, *** have him sit up and we could have a full
view of his body.”
The defendant refused after multiple requests. Windmon described the defendant as “very
hostile[,]” “avoiding questions, cursing,” and “fully uncooperative.” Following these refusals to
cooperate, the officers detained the defendant in what Windmon described as a “Terry stop.” After
making physical contact, the defendant continued to refuse to comply when asked to place his arms
behind his back. Following Windmon’s warnings, he used a taser to “gain control of the
defendant’s arms.”
¶8 The State entered Windmon’s body camera footage of the incident into evidence. The video
showed the defendant instantly informing the officers that he was waiting for the train. Mozo
responded by asking the defendant for his name and identification. The defendant informed the
officers that he would not give them his information. Immediately after, officers ordered the
defendant to “sit up, take the blanket off” several times so they could see the defendant’s hands.
The defendant informed the officers that he was waiting for the train and knew when the train
arrived. Windmon stated that was “irrelevant.” Again, Windmon requested the defendant to
remove his blanket so he could “see [his] hands” and make sure he did not have any weapons. The
defendant indicated that he did not have any weapons and that he was not going to remove his
blanket because he was “not bothering nobody” and was “minding [his] business.” At this point,
the officers put their gloves on. The defendant indicated that his train was arriving at 4 a.m. Mozo
told the defendant that he “can’t be here.” Windmon informed the defendant that they had “zero
intentions of arresting” him, and again ordered the defendant to “sit up” and “take the blanket off.”
The defendant asked why the officers were bothering him, and Mozo responded that the defendant
refused to give them his identification. The defendant stated, “I don’t have to.” The officers
responded that the defendant had to give them his identification. When Windmon again asked for
his name, the defendant responded, “don’t worry about all that.” As the officers approached the
defendant, he removed both hands from under the blanket, one of which clearly held a cell phone.
Approximately three seconds later, Windmon made physical contact with the defendant by
grabbing the phone from his hands. In an apparent explanation for the contact, Windmon stated
that they asked the defendant “to do something” and he “didn’t want to do it.” During the
[SEGMENT 9]
commotion, the defendant again informed the officers that he was waiting on the train and that he
had a ticket. A train horn can be heard in the background. After being put on the ground, the
defendant stated, “get the fuck away from me.” The officers began to place the handcuffs on the
defendant. The officers threatened to tase the defendant if he did not place both hands behind his
back. Approximately 12 seconds later, Windmon tased the defendant and secured handcuffs. After,
the defendant asked the officers, “this how you treat people who waiting on the train,” Mozo
responded, “we asked you to give us something.”
¶9 On cross-examination, Windmon stated that he saw the defendant’s hands holding a cell
phone and not a weapon before he made physical contact with the defendant. Windmon indicated
that they had not received complaints of the defendant trespassing. No signs were posted on the
platform preventing individuals from being there. Windmon did not ask the defendant to leave.
There are no gates or fences to prevent people from entering the platform when it is closed.
Windmon testified that “[a]s a representative of Metra,” he was “authorized to dictate when
somebody is trespassing.” Windmon stated that it was a Metra policy that forbids individuals from
being at the station “[i]f the trains aren’t running.” Windmon first observed the defendant at the
station at approximately 2 a.m., made contact around 3 a.m., and the first train would have been
arriving at 4 a.m. When asked whether it was “against the policy to be on the platform an hour
early” for a train, Windmon responded that the defendant was more than an hour early. Windmon
explained that he did not ask the defendant for his ticket because he “[n]ever got that far in the
conversation,” since the defendant “refused to comply with our first orders.”
¶ 10 On re-direct examination, Windmon stated that part of an investigation into trespassing
consisted of obtaining an individual’s identification and “securing” officer safety. Windmon
explained that he knew the Joliet Police Department told homeless individuals to go to the Metra
platform to “stay warm.” If these individuals “were under the impression that they could be there,”
Metra police would not arrest them for trespassing. Windmon testified that the defendant informed
the officers that he did not have any weapons, and the officers did not locate any weapons among
the defendant’s personal items. Windmon did not know if the defendant had been told by the Joliet
police to go to the platform, and he did not inform the defendant that he could not be there.
¶ 11 The defendant testified that on the date in question, he walked for approximately one hour
from the hospital to the Joliet station and was unsure exactly when he arrived. The defendant had
a ticket in his wallet for the train that he expected to arrive at approximately 4:30 a.m. to take him
to his job in Chicago. The defendant had his blanket, phone, phone charger, wallet, and
identification card. The defendant was watching videos on his phone while he waited for the train
when Mozo and Windmon confronted him. The officers first asked for the defendant’s
identification, and the defendant said he was not going to give it to them. The defendant was
“pissed” and felt like the officers were harassing him. The officers then began asking the defendant
to show his hands when “one thing led to another, and they grabbed [the defendant]” even though
his hands were “already visible.” They “thr[ew]” the defendant on the ground. The defendant stated
that one arm was already behind his back at this point, but the other arm was “stuck” under his
stomach. The defendant was not able to put that arm “all the way” behind his back due to nerve
damage from a prior injury. The defendant did not have any weapons on him. The defendant did
not see any signs that prohibited him from being at the station. He thought the station was open
because the lights were on in the “main” building, and this meant someone was working the ticket
counter.
¶ 12 On cross-examination, the defendant thought that the officers confronted him at
approximately 3:30 a.m. The defendant left the hospital shortly after 2 a.m. and arrived at the
station around 3 a.m. When the officers approached, the defendant had his arms under the blanket
to keep them warm. The defendant agreed that the officers first asked for his name and
identification, and the defendant refused to give them that information. At this point, the defendant
was still covered from the shoulders down. After several requests, the defendant removed his hands
from the blanket. When the officer saw the defendant’s phone, “that’s when he grabbed” him. The
defendant did not remember if he had his hands out of the blanket before or after the officers
approached him. On re-direct examination, the defendant indicated that he did not want to make
fast movements once the officers approached him. The defendant removed his hands from the
blanket with his phone to record the officers because he “felt like the situation might get out of
hand.”
¶ 13 The jury found the defendant guilty of resisting a peace officer. The court sentenced the
defendant to 24 months’ conditional discharge. The defendant appealed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the defendant argues that the State failed to present sufficient evidence to
sustain his conviction of resisting a peace officer. The defendant reasons, inter alia, that the
officers were not engaged in an authorized act to justify a Terry stop. In a challenge to the
sufficiency of the evidence, “ ‘the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) [CITATION] (quoting [CITATION]). “When presented
with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the
defendant.” Id. Thus, “the reviewing court must allow all reasonable inferences from the record in
favor of the prosecution.” [CITATION] “A conviction will
be reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that it
justifies a reasonable doubt of the defendant’s guilt.” [CITATION]
¶ 16 Here, the defendant was charged with resisting a peace officer, which required the State to
prove that the defendant knowingly resisted the performance of an individual he knew was a police
officer “of any authorized act within his *** official capacity.” 720 ILCS 5/31-1(a) (West 2020).
The act must be one that the officer was authorized to perform. [CITATION] A Terry stop may be an authorized act that, if resisted, can be the basis of a
conviction for resisting a peace officer. [CITATION] However, to be considered an authorized act, the officer must have observed unusual conduct
leading to a reasonable, articulable suspicion that the person in question has committed or is about
to commit a crime. 725 ILCS 5/107-14 (West 2020); see [CITATION]; see
also [CITATION] Thus, if the officers were not engaged in
an authorized act or, otherwise stated, did not have a reasonable belief required under Terry to
justify an investigative stop when the defendant resisted, the defendant’s conviction must be
reversed. [CITATION]
¶ 17 Relevant factors to consider when determining whether an officer had reasonable suspicion
to conduct a Terry stop an individual include whether: (1) the stop occurred in a high crime area;
(2) it was late at night or early in the morning; (3) the person engaged in “unprovoked flight”
([CITATION]); and (4) the person’s behavior was consistent with
the officer’s knowledge of criminal activity. [CITATION] “Viewed as
a whole, the situation confronting the police officer must be so far from the ordinary that any
competent officer would be expected to act quickly.” [CITATION] We must view the facts from the perspective of a reasonable officer in that situation, rather
than analytical hindsight. [CITATION] The facts supporting the officer’s suspicion need not reach the level
of probable cause, but they must amount to more than a mere hunch. [CITATION]
¶ 18 At the outset, we note that the officers conducted a Terry stop due to the belief that the
defendant could be trespassing. A person is guilty of trespassing when he or she, after receiving
notice, “knowingly and without lawful authority enters or remains within or on a building.” 720
ILCS 5/21-3(a)(1), (2) (West 2020); see also id. § 21-5 (a person commits criminal trespass to
State supported land when, after receiving notice “from the State or its representative that the entry
is forbidden”). At the time of the stop, the facts available to the officers were that members of the
Joliet Police Department were known to inform homeless individuals that they could use the Metra
platforms to get warm during inclement weather, and there were no signs posted on or around the
[SEGMENT 10]
platform to inform anyone when they were or were not permitted to be on the platform. The
platform was open, and no gates or doors prevented entry, nor had the officers received any
complaints of an individual trespassing. While the officers saw someone on the platform at 2 a.m.,
they could not identify the defendant as that individual. The officers approached the defendant on
the platform at approximately 3 a.m., and the trains began running at 4 a.m. However, an individual
waiting for a train an hour early is not “so far from the ordinary that any competent officer would
be expected to act quickly.” [CITATION] Further, at no point did the officers order
the defendant to leave. The defendant had no notice to vacate the premises, nor was he given an
opportunity to leave. We find that the defendant’s mere presence on the platform, without any
other evidence, was insufficient to justify a Terry stop. See [CITATION]
¶ 37 (“The officer must be able to articulate more than an inchoate and unparticularized suspicion
or hunch of criminal activity.” (Internal quotation marks omitted.) (quoting [CITATION])). Given the information available to the officers, we cannot say that these facts lead to a
reasonable, articulable suspicion that the defendant had committed or was about to commit a crime.
See [CITATION]. As a result, the State failed to establish that the officers’ Terry
stop that precipitated his resisting a peace officer offense was justified by articulable reasonable
suspicion and amounted to an “authorized act.”
¶ 19 Even if we assume that the defendant’s mere presence on the platform before the train
began running factored into his “unusual conduct” to justify the officers initial stop, in light of the
applicability of only one [CITATION] factor—that it was early in the morning—no other facts otherwise
indicate criminal activity to justify the Terry stop of the defendant. See [CITATION].
Notably, there is no evidence that the stop was in a high crime area, that the defendant
attempted to flee, or that the defendant’s behavior was consistent with the officer’s knowledge of
criminal activity. Id. Moreover, whatever reasonable suspicion existed dissipated when the
defendant informed officers that he had a ticket for the train. See [CITATION] (“[A]n investigative stop must cease once reasonable suspicion or probable
cause dissipates.”); see also [CITATION] (following a report
of violence, an officer is “authorized to conduct some initial investigation,” however, upon finding
no evidence of a crime, his authority to continue ended). The officers had ample opportunity to
request to view the defendant’s train ticket but failed to do so. The officers cannot ignore or
disregard new information from the defendant relevant to their trespassing investigation and insist
that the defendant refused to provide information related to their investigation. As such, the
officers lacked reasonable suspicion to justify their Terry stop, making it an unauthorized act and
insufficient to support a conviction for resisting a peace officer.
¶ 20 Moreover, the officers failed to articulate any other criminal activity that they believed the
defendant to have committed or was about to commit. Instead, the evidence showed that the
officers immediately asked the defendant to tender his identification upon contact. See [CITATION]
(the court held that an individual subject to a Terry
stop has no obligation to answer the questions of a police officer, and the refusal to identify himself
or provide identification to police officers was insufficient evidence to support a conviction for
resisting or obstructing a peace officer). This fact, coupled with the officers informing the
defendant that they had no intention of arresting him, followed almost immediately by the
defendant’s detention, indicates that the officers incorrectly believed they were justified in
conducting a Terry stop of the defendant based solely on the refusal to tender his identification
and his generally combative demeanor. See id. The facts presented are insufficient to justify a
Terry stop and, thus, the officers’ actions were unauthorized. See [CITATION], ¶ 37.
¶ 21 Finally, the defendant’s refusal to initially reveal his hands was insufficient to establish a
reasonable suspicion that the defendant was armed and dangerous. First, the officers’ belief that
the defendant “could have had a weapon,” without more, amounted to a mere “hunch,” which is
insufficient to establish reasonable suspicion. See [CITATION] (intrusions upon
constitutionally guaranteed rights must be based on more than inarticulate hunches). Second,
before the officers made physical contact, the defendant showed his hands and phone to the officer.
See [CITATION] (“Refraining from physical action or failing
to cooperate with the police is generally not considered the same as resisting or obstructing an
officer.”). The evidence showed that Windmon observed the defendant’s hands prior to making
contact, as his first action was to remove the defendant’s phone from his hands. Not only did the
officers lack reasonable articulable suspicion to justify their initial Terry stop, but the officers also
lacked articulable suspicion once the defendant showed his hands. Windmon could clearly see,
prior to making contact, that the defendant had his hands displayed and held a cell phone.
Therefore, the officers were not authorized or justified in conducting a Terry stop in this case, even
taking the evidence in the light most favorable to the State, and therefore for the foregoing reasons,
the evidence does not support the guilty verdict.
¶ 22 III. CONCLUSION
¶ 23 The judgment of the circuit court of Will County is reversed.
¶ 24 Reversed.
2023 IL App (1st) 211646-U
No. 1-21-1646
Order filed December 27, 2023
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 10676
)
ELVIN PRINCE, ) Honorable
) Ursula Walowski,
Defendant-Appellant. ) Judge, presiding.
JUSTICE D. B. WALKER delivered the judgment of the court.
Justices Lampkin and Van Tine concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for first degree murder over his contention that
he was denied effective assistance by trial counsel’s failure to file a motion to quash
arrest and suppress evidence and to object during a police officer’s hearsay
testimony.
¶2 Following a jury trial, defendant Elvin Prince was found guilty of first degree murder
pursuant to an accountability theory, and sentenced to 35 years in prison. On appeal, defendant
contends that he was denied effective assistance of counsel by trial counsel’s failure to file a No. 1-21-1646
motion to quash arrest and suppress evidence and to object to a police officer’s hearsay
testimony about a “flash message” that “unequivocally” identified defendant as “the offender.”
We affirm.
¶3 I. BACKGROUND
¶4 Following an incident on May 19, 2014, defendant was charged under an accountability
theory with the first degree murder of Kashaun Hall, the attempted first degree murders of Stefun
Howard and Gerald Bauseman, and aggravated discharge of a firearm. The State proceeded on two
counts of first degree murder and nol-prossed the remaining counts.
¶5 Prior to trial, the State filed a motion in limine to admit gang evidence, which the trial court
granted after argument.
¶6 At trial, Howard testified that in May 2014, he lived in Chicago and was friends with Hall.
On May 19, 2014, Tavien Butts was driving Howard and Bauseman to Howard’s home when
Howard noticed a silver Nissan behind them. Howard identified defendant in court as the driver of
the Nissan. Defendant, whom Howard knew as “E-Dub,” belonged to a “click” or a small faction
of the “Money Over B******” (MOB) gang. At the time, Howard and Hall belonged to a different
gang, “N****** In Action” (NIA). NIA and MOB were rivals and the two groups fought at school.
Howard saw “something” in the Nissan’s front passenger seat, which was angled “all the way
back.” Butts accelerated to evade the Nissan. He subsequently left Howard and Bauseman at
Howard’s home. Shortly thereafter, Howard and Bauseman left Howard’s home on foot.
¶7 As they walked, Howard saw the Nissan by a gas station. The same person was driving.
Howard and Bauseman walked to a restaurant and called Butts to ask for a ride. From the
restaurant, Howard observed the Nissan circle the block. When Butts did not respond, they called
No. 1-21-1646
Hall and told him that E-Dub and an unidentified person were following them. Howard and
Bauseman left the restaurant, met Hall, and walked to “Brian’s” 1 backyard.
¶8 Howard heard a vehicle approaching and saw the Nissan stopped about eight feet away.
[SEGMENT 11]
Defendant was still driving. The passenger, who was wearing a black hat “all the way down” and
a mask, “popped up and started shooting.” The passenger was skinny, and Howard believed that
the individual was a man. Howard and Bauseman fled. Hall, however, ran toward the vehicle.
When Howard returned to the alley, he saw Hall on the ground bleeding. Bauseman then returned.
When the police arrived, they asked if Howard saw anything and then took him to look at a silver
Nissan, which he recognized as the vehicle that he previously encountered. He also went to a police
station where he identified defendant in a photographic array.
¶9 The State entered stipulations establishing the foundation for several surveillance videos
from businesses in the area. The State played the videos, which Howard narrated in court
consistently with his earlier testimony, including that the Nissan arrived, and that Hall ran and then
fell to the ground.
¶ 10 During cross-examination, Howard testified that the conflict between NIA and MOB had
never previously escalated to shooting. While riding in Butts’ vehicle, Howard observed the
Nissan’s driver, but only saw something black in the passenger seat. Howard described what he
saw as “almost *** like a person,” but acknowledged that it could also have been a “big bag.” The
gunshots came from the Nissan’s passenger side.
¶ 11 Howard did not see defendant make gang signs or possess a firearm on the day of the
shooting, but found it “suspicious” that the passenger seat was pushed all the way back. At trial,
The report of proceedings does not contain Brian’s family name.
No. 1-21-1646
he admitted that his grand jury testimony implied that the gunshots came from the driver’s side
window.
¶ 12 During redirect, Howard clarified that he testified before the grand jury that, at the time of
the shooting, he saw the shooter “ ‘lean up’ ” while defendant leaned back.
¶ 13 Bauseman testified that he, Howard, and Hall belonged to NIA and were involved in a
rivalry with MOB. On May 19, 2014, Butts drove Bauseman and Howard toward Howard’s home.
Bauseman, who was in the backseat, saw a silver vehicle behind their vehicle and Howard stated
that he saw E-Dub. Bauseman did not know E-Dub. However, at trial, he identified defendant as
the driver of the silver vehicle. Bauseman did not see anyone in the backseat and only saw the
dreadlocks of the person in the front passenger seat. When the silver vehicle turned, defendant
looked in Bauseman’s direction in an “[a]ngry” manner. Defendant did not make gang signs and
Bauseman did not see a firearm.
¶ 14 After Bauseman and Howard left Howard’s home, Bauseman again saw the silver vehicle,
still driven by defendant. Bauseman and Howard were scared, so they entered a restaurant. Howard
called Hall, who met them near the restaurant. They next went to Brian’s backyard, but Hall could
not open the gate. Bauseman said they should leave the alley because they were being followed.
He then heard a vehicle accelerate and saw the silver vehicle. Defendant was still driving.
Bauseman heard someone say, “hey, hey, hey,” saw a firearm emerge from a window of the silver
vehicle, and ran. He heard four or five gunshots. The person in the passenger seat had the firearm,
not defendant. Bauseman ran when he heard the first gunshot.
¶ 15 Bauseman hid briefly. Then, he returned to the alley and observed that Hall was hurt. When
police arrived, Bauseman told them that his friend had been shot, but was too distraught to say
====== End of Part of Court Ruling ====== No. 1-21-1646
more. Later, at a police station, he told officers what happened and identified defendant in a
photographic array. Because he was scared, he told police he did not belong to NIA.
¶ 16 During cross-examination, Bauseman acknowledged that he did not call the police to report
that someone was following him. While defendant looked at Bauseman, defendant did not make a
gang sign, speak, or point a firearm. Bauseman did not see the shooting; rather, he saw the firearm
emerge from the silver vehicle and then ran.
¶ 17 Chicago police officer Brett Kellam testified that around 5 p.m. on May 19, 2014, he heard
a “flash message” of a “person shot.” Additional information indicated that a silver Nissan and
two black men, one with dreadlocks and one with a mask, were possibly involved. In another
message, he learned that one of the men was named “E-Dub” and could be “Ethan Prince,” who
lived around 79th Street and St. Louis. Officer Kellam then relocated to 7900 St. Louis Avenue.
¶ 18 Officer Kellam drove south on Kedzie, then turned westbound on 79th toward St. Louis.
He explained that Kedzie and St. Louis were parallel to each other and that Kedzie was three blocks
east of St. Louis. Officer Kellam then observed a black man with dreadlocks run across the street
onto a concrete “planter area” with trees and shrubs. Officer Kellam exited his vehicle to
investigate. He identified defendant in court as the person who ran across the street. Officer Kellam
asked defendant his name and upon hearing the answer “Elvin Prince” took him into custody. A
cell phone, wallet, state identification card, and vehicle keys were recovered from defendant during
a custodial search. No weapons were recovered. When additional officers arrived, Officer Kellam
gave the keys to Officer Daniel Sullivan. Defendant was taken to a police station.
¶ 19 During cross-examination, Officer Kellam clarified that the initial “flash message” stated,
“person shot.” He then drove toward the direction of the shooting. At some point, another message
No. 1-21-1646
stated that two black men, one with a mask and one with dreadlocks, were involved. When Officer
Kellam saw defendant running to the concrete planter, defendant was alone. Officer Kellam
believed defendant could be Ethan Prince, but defendant identified himself as Elvin Prince, which
was corroborated by defendant’s identification.
¶ 20 Chicago police officer Daniel Sheehan testified that after arriving at 79th and St. Louis,
Sullivan gave him a vehicle key and fob. Officer Sheehan recognized the keys as belonging to a
Nissan. He drove southward, the direction from which defendant came, and clicked the “button”
to see if any vehicles lit up or unlocked. Approximately 10 minutes later, Officer Sheehan found
a vehicle that responded to the key fob. He informed other officers but did not touch the vehicle.
The State then published a video from a residence, which Officer Sheehan asserted depicted the
events he had just described.
¶ 21 The State then presented testimony establishing that the Nissan was photographed between
8 and 8:30 p.m. on May 19, 2014, and that shortly thereafter a gunshot residue (GSR) test was
administered to defendant at a police station. A forensic investigator next testified that the Nissan
was dusted for fingerprints and swabbed for DNA evidence and that a GSR test was performed on
the Nissan’s passenger side. A retired trace evidence analyst testified that defendant’s GSR test
was negative, and that the Nissan’s front passenger side and roof tested positive for GSR.
¶ 22 The State next entered stipulations establishing that defendant’s DNA was collected, that
DNA analysis on the samples taken from the Nissan identified a mixture of DNA profiles
originating from at least three people, and that a major male DNA profile was identified from this
mixture from which defendant could not be excluded. The chances that a person in the general
population would have the major DNA profile identified in the sample recovered from the front
No. 1-21-1646
driver’s side of the vehicle was approximately 1 in 2 quintillion blacks, 1 in 53 quintillion whites,
or 1 in 140 quintillion Hispanic unrelated individuals. The State entered an additional stipulation
establishing that defendant’s arms were photographed; the photographs, which were published and
are included in the record on appeal, show tattoos stating “EDUB” and “Money Over B******.”
The State then entered an Illinois Secretary of State certified driver’s record abstract for defendant,
with a date of birth of September 25, 1996, and an address in the 3500 block of West 79th Place.
¶ 23 Chicago police detective Daniel Gorman testified that on May 19, 2014, Howard identified
a Nissan parked on the street as the vehicle from which a person leaned out of the passenger side
and shot Hall. Howard and Bauseman separately identified defendant in photographic arrays as
the Nissan’s driver.
¶ 24 At the close of evidence, the defense moved for a directed verdict, which the trial court
denied. Following closing arguments, the jury found defendant guilty of first degree murder.
¶ 25 Defendant then retained new counsel. Posttrial counsel filed a motion and supplemental
motion for a new trial raising numerous ineffective assistance claims. Relevant here, the motion
alleged that trial counsel failed to file a motion to quash arrest and suppress evidence based upon
a lack of probable cause to stop and search defendant when defendant was stopped while crossing
[SEGMENT 12]
the street, there was no warrant for his arrest, and there was no evidence that the officer knew
defendant.
¶ 26 The trial court held a hearing on defendant’s motion and supplemental motion for a new
trial. We relate only the testimony relevant to the issues before this court. Nichole Massarello
testified that she and Tod Urban represented defendant at trial. 2 Urban was lead counsel and
The hearing occurred on three days in April, June, and August 2021.
No. 1-21-1646
Massarello served as second chair. No investigator was hired and no motion to suppress was filed.
During cross-examination, Massarello testified that defendant’s trial was not the first murder trial
in which she participated, but Urban decided whether to stipulate to evidence or file motions.
¶ 27 Urban testified that he had been a licensed attorney in Illinois for 37 years and his practice
was wholly criminal law. He was retained by defendant’s parents on December 4, 2014. He could
not find his case file, did not “recall this case,” and did not have “any independent recollection” of
its details. Urban did not recall hiring a private investigator and did not file a motion to quash arrest
and suppress evidence.
¶ 28 Posttrial counsel asked that the hearing be continued so that Urban could locate his trial
file. The State did not object. The trial court agreed, but asked the State to cross-examine Urban
on his testimony so far.
¶ 29 During cross-examination, Urban stated that, when determining whether to file a motion
to quash arrest and suppress evidence, he reviews the discovery and does not file frivolous motions.
In every murder case, he considers whether an exception to the warrant requirement permits the
introduction of evidence obtained through a warrantless arrest and search. At the next date, Urban
testified that he could not locate his case file.
¶ 30 In closing argument, posttrial counsel argued that it was the “norm” to file a motion to
suppress to “get more information” and that there was “nothing you can lose” by examining the
arresting officer as to why defendant was stopped, what defendant wore, and why he was
searched. 3
Posttrial counsel also argued that the suppression motion would have been meritorious because
[CITATION] was good law.
No. 1-21-1646
¶ 31 The trial court denied defendant a new trial, finding, relevant here, that a motion to quash
arrest and suppress evidence would not have succeeded. Probable cause for a stop existed pursuant
to [CITATION] when defendant was stopped minutes after a shooting “in the
area,” and defendant, who had dreadlocks, matched the description given, and his name was related
over the radio. Posttrial counsel made an oral motion to reconsider, which the trial court denied.
¶ 32 On December 13, 2021, following argument, the trial court imposed a 35-year sentence for
first degree murder. Defendant filed a motion to reconsider sentence, which the trial court denied.
¶ 33 II. ANALYSIS
¶ 34 A. Failure to File Motion to Quash Arrest and Suppress Evidence
¶ 35 On appeal, defendant first contends that he was denied effective assistance when trial
counsel failed to file a motion to quash arrest and suppress evidence. Defendant argues that the
motion would have been meritorious as Officer Kellam did not have reasonable suspicion to
execute a [CITATION] stop when he stopped defendant because he matched the “vague” description of
the offender related in a “flash message.”
¶ 36 When evaluating a claim of ineffective assistance, we apply a two-prong test under which
the defendant must prove his counsel’s performance fell below an objectively reasonable standard
and that the deficient performance prejudiced him. [CITATION] A defendant’s failure to satisfy either prong precludes a finding of ineffectiveness.
[CITATION] We review whether a defendant received ineffective
assistance of counsel de novo. [CITATION]
This assertion was incorrect. Defendant’s jury trial began on May 20, 2019, and concluded on May 23,
2019. [CITATION]
No. 1-21-1646
¶ 37 “To establish deficient performance, the defendant must overcome the strong presumption
that counsel’s action or inaction was the result of sound trial strategy.” [CITATION]. Acts or omissions by counsel will not be considered matters of strategy,
however, where no sound tactical reason could conceivably support the act or omission. [CITATION]. To establish prejudice, a defendant must establish there
is a reasonable probability that, but for counsel’s unreasonable performance, the result of the
proceeding would have been different. [CITATION].
¶ 38 The decision to file a motion to suppress is generally a matter of trial strategy entitled to
great deference. [CITATION]. To establish ineffective assistance based on counsel’s failure to file such
a motion, a defendant must show that the unargued motion was meritorious and that a reasonable
probability exists that the trial outcome would have been different had the evidence been
suppressed. Id. It is the defendant’s burden to establish a factual basis for an ineffective assistance
claim. [CITATION].
¶ 39 Here, defendant contends that a motion to quash arrest and suppress evidence would have
been successful, as Officer Kellam stopped him merely because he was a black man with
dreadlocks running across the street. He notes that Officer Kellam did not testify to any prior
encounters with defendant or identify the “original source” of the identifying information, and
concludes that the “vague description” of the offender was an insufficient basis for a Terry stop.
¶ 40 An arrest made without probable cause violates the prohibitions against unreasonable
searches and seizures under the United States and Illinois constitutions. [CITATION]. Pursuant to Terry, however, a police officer may briefly detain a person for
investigatory purposes if the officer reasonably believes the person has committed or is about to
- 10 - No. 1-21-1646
commit a crime. [CITATION];
see also 725 ILCS 5/107-14(a) (West 2014).
¶ 41 Reasonable suspicion arises when an officer sees unusual conduct which leads the officer
reasonably to conclude in light of his or her experience that criminal activity may be afoot. [CITATION]. Reasonable suspicion is a “low bar.” [CITATION]. “[T]he evidence necessary to justify a Terry stop need not rise to
the level of probable cause and can even arise when no violation of the law is witnessed; however,
a mere hunch is insufficient.” [CITATION]. Rather, officers
may rely on their training and experience and make inferences that would elude an untrained
person. [CITATION].
¶ 42 In order to justify an investigatory stop, the police officer must be able to point to specific,
articulable facts, which, taken with rational inferences therefrom, reasonably warrant the intrusion.
[CITATION]. In determining whether a stop is
reasonable, an objective standard is used in which the court considers the totality of the facts and
circumstances from the perspective of a reasonable officer at the time of the stop. See [CITATION]. Further, pursuant to the collective knowledge doctrine,
“information known to all of the police officers acting in concert can be examined when
determining whether the officer initiating the stop had reasonable suspicion to justify a Terry stop.”
[CITATION]; see also [CITATION] (quoting [CITATION] (when officers work together,
“ ‘the knowledge of each is the knowledge of all’ ”)).
- 11 - No. 1-21-1646
¶ 43 [CITATION] is instructive. There, our supreme court determined that
the “act of running in the rain while holding the front of [a] pocket” did not provide police officers
with reasonable suspicion to stop a person. [CITATION]
¶ 44 In that case, an officer testified at the hearing on the defendant’s motion to suppress
evidence that, at the time he encountered the defendant, the defendant was running and appeared
to be holding his front pocket. [CITATION] The officer acknowledged that he was not responding to a
specific report of a crime or 911 call, and that it was raining. [CITATION] He did not observe the
defendant committing any crime and the defendant was already running at the start of the
encounter. [CITATION] The officer tried to stop the defendant because he wanted to know why the
defendant was running. [CITATION] Then, after stopping the defendant and observing a “ ‘big bulge’ ”
in the defendant’s pocket, the officer wanted to determine “ ‘what was the bulge.’ ” [CITATION]
¶ 45 Based on the facts of that case, our supreme court determined that the officers lacked
reasonable suspicion to stop the defendant. [CITATION] The court noted that the officer did not testify
that he was responding to a specific report of a crime, did not describe the neighborhood as a “high-
crime area,” and acknowledged that the defendant was already running when the encounter began.
[CITATION] Rather, the officer “simply wanted to know why [the] defendant was running and what item
caused a bulge in [the] defendant’s pants.” [CITATION] The court therefore concluded that the facts known
[SEGMENT 13]
to the officer at the time of stop were insufficient, and the stop itself was “unlawful.” [CITATION]
¶ 46 Here, however, Officer Kellam received information that a person was shot and that two
black men, one with dreadlocks and one with a mask, and a silver Nissan were involved. He
thereafter learned that one of the men went by the nickname E-Dub and could be “Ethan Prince,”
who lived around 79th and St. Louis. Officer Kellam relocated to the 7900 block of St. Louis
- 12 -
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'people-v-lozano', which should be replaced with `[CITATION]`. No. 1-21-1646
where he saw a black man with dreadlocks run across the street onto a concrete planter with trees
and shrubs. In other words, after receiving information that a black man with dreadlocks who lived
near a certain intersection was possibly involved with a shooting, Officer Kellam relocated to that
area and saw defendant, a black man with dreadlocks, run across the street into the shrubbery-
covered median. See [CITATION] (finding that a radio transmission of a “ ‘man down’ ” and a description of the offender as a black man wearing a black
hoodie running north on a certain street provided reasonable suspicion to stop the defendant, who
matched the description and was running on the same street).
¶ 47 While defendant’s behavior could have had an innocent explanation, “[r]easonable
suspicion does not require an officer to ‘rule out the possibility of innocent conduct.’ ” [CITATION] (quoting [CITATION]).
Additionally, reasonable suspicion can be partially based on an officer’s observation of an
individual similar to one believed to be fleeing the scene of a recent offense when the individual
is located in the general area where the fleeing suspect is expected to be, given the time of the
offense, and the distance from the scene. See [CITATION].
Here, Officer Kellam observed a man who matched the description of the offender running across
the street as Officer Kellam traveled to the area where the offense occurred. Moreover, the man
was running in the area identified in the “flash message” as being where he lived. Thus, Officer
Kellam had reasonable suspicion to effectuate a Terry stop. See [CITATION] (to
justify an investigatory stop, the officer must be able to point to specific, articulable facts, which,
taken with rational inferences therefrom, reasonably warrant the intrusion).
- 13 - No. 1-21-1646
¶ 48 Defendant, however, argues that no reasonable suspicion existed because Officer Kellam
acted on an anonymous tip and did not testify to previous encounters with defendant. He notes that
the record is “silent” as to who related the description of the offenders to officers, and argues that
the “vague” quality of the information was insufficient to provide reasonable suspicion. We
observe, however, that Officer Kellam was not asked at trial about the source of the description of
the offenders. Consequently, the record before this court does not clearly establish whether Officer
Kellam acted on an anonymous tip, the contents of the tip, or whether Officer Kellam had
previously interacted with defendant.
¶ 49 Moreover, the record does not reveal whether the information transmitted in the “flash
messages” was the only information known to Chicago police officers at the time of the messages’
transmittal. That is, there would be no reason for a “flash message” to include the identity of the
person or people who identified and described the offender. Officer Kellam relied on the
information contained in the messages, and pursuant to the collective knowledge doctrine, the facts
known to the officers at the scene could be considered when determining whether there was
reasonable suspicion to justify a Terry stop. See [CITATION].
¶ 50 However, the record does not contain these details because defendant’s arrest was not
challenged in the trial court. See [CITATION]. Consequently, we cannot agree with defendant’s conclusion
that the lack of evidence in the record as to these issues must be resolved in his favor. See [CITATION],
¶ 14 (“The lack of evidence currently in the record concerning probable
- 14 - No. 1-21-1646
cause and the officers’ pre-arrest beliefs cannot be equated with fact—that there was no evidence
to support a probable cause determination.” (emphasis in original)).
¶ 51 We are similarly unpersuaded by defendant’s reliance on [CITATION]. There, the defendant filed a motion to quash arrest and suppress evidence and
presented two witnesses at the hearing on the motion. [CITATION].
¶ 52 At trial, two officers testified that they approached the defendant because he “fit the
description” of a robbery suspect that they received by radio dispatch. [CITATION]. The trial court
subsequently vacated its ruling on the motion to quash arrest and suppress evidence and allowed
the State to make an offer of proof. [CITATION]. The State proffered that a police officer would
testify that he received a “ ‘flash message’ ” that a “ ‘male black wearing a blue coat and black
hat’ ” fled west toward a park. The officer arrived at the park two minutes later and observed the
defendant, a black man, wearing “ ‘a blue coat and a black hat.’ ” [CITATION]. The trial court granted
the defendant’s motion, ordered a mistrial, and the State appealed. [CITATION].
¶ 53 On appeal, this court affirmed, as the only evidence introduced to explain the defendant’s
detention was that he “ ‘fit the description’ ” of an offender. [CITATION]. There was no testimony as to the
“specific description” of the offender’s physical characteristics or clothing and no testimony as to
the defendant’s appearance or clothing at the time of the stop. [CITATION]. Moreover, absent the offer of
proof, the record did not include the suspect’s gender or race. [CITATION]. Accordingly, the trial court “had
no opportunity to determine whether the description of the offender and the physical characteristics
of the defendant were similar enough to justify the detention of the defendant.” [CITATION].
- 15 - No. 1-21-1646
¶ 54 This court further noted “albeit parenthetically” that the details in the offer of proof were
insufficient to justify the stop of the defendant. Id. at 868; see [CITATION], 355 Ill. App. 3d
898, 904 n.1 (2005) (declining to consider the parenthetical finding in Washington); [CITATION],
2015 IL App (1st) 131872, ¶ 49 n.3 (same). The offer of proof stated that the offender was
a “ ‘male black wearing a blue coat and black hat’ ” without detailing the offender’s complexion,
whether he had facial hair or wore glasses, and the type or style of the coat and hat. Washington,
269 Ill. App. 3d at 868. We highlighted that the defendant testified that he was wearing a “ ‘a blue
Chicago Bears “starter jacket” ’ ” at the time of the stop, which was a “distinctive and readily
discernible item of apparel.” Id.
¶ 55 In this case, however, Officer Kellam testified that the description in the “flash message”
included gender, race, and hairstyle and that defendant matched those descriptors. Additionally,
defendant was stopped shortly after the offense by the officer who was traveling toward the area
where the offense occurred and in the same neighborhood where the “flash messages” stated that
the offender lived. These details distinguish the facts of this case from those in Washington. Here,
based upon the record at trial, the information available to Officer Kellam at the time of the stop
provided Officer Kellam with reasonable suspicion to stop defendant: defendant matched the
description that Officer Kellam received of a black male with dreadlocks, and defendant was seen
running in the area of the offense shortly after it occurred. See [CITATION],
¶ 14.
¶ 56 As Officer Kellam’s stop of defendant was not improper, defendant cannot establish that
he was prejudiced by trial counsel’s failure to file a motion to quash arrest and suppress evidence.
See [CITATION], ¶ 45 (“Defense counsel is not required to make
- 16 -
======= End of Document ======= No. 1-21-1646
losing motions or objections in order to provide effective legal assistance.”). His ineffective
assistance claim therefore fails. [CITATION]
¶ 57 B. Failure to Object to Testimony
¶ 58 Defendant next contends that he was denied effective assistance by trial counsel’s failure
to object to Officer Kellam’s testimony that the “flash message” stated that a black man with
dreadlocks, known as E-Dub and “Ethan Price,” was connected to the shooting. He asserts there
was no strategic reason for trial counsel’s failure to object and that he was prejudiced by this “third
eyewitness” identification testimony.
¶ 59 The State responds that defendant has forfeited this contention for failure to raise it before
the trial court and asks for plain error review before this court. However, a party may properly
raise a claim of ineffective assistance for the first time on appeal. See [CITATION] Accordingly, we will address the merits of defendant’s contention.
[SEGMENT 14]
¶ 60 As discussed, to establish a claim of ineffective assistance, a defendant must demonstrate
that trial counsel’s performance fell below an objective standard of reasonableness, and there is a
reasonable probability that, but for the complained-of actions, the result of the proceeding would
have been different. [CITATION] “If it is easier to dispose of an ineffective
assistance claim on the ground that it lacks sufficient prejudice, then a court may proceed directly
to the second prong and need not determine whether counsel’s performance was deficient.” [CITATION] In the case at bar, we
can dispose of defendant’s claim of ineffective assistance on the prejudice prong alone. See, e.g.,
[CITATION] (“If a defendant cannot establish that he suffered
- 17 - No. 1-21-1646
prejudice, a court need not determine whether counsel’s performance was constitutionally
deficient.”).
¶ 61 Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c) (eff.
Oct. 15, 2015). “The determination of whether a statement constitutes inadmissible hearsay does
not focus upon the substance of the statement, but rather the purpose for which the statement is
being used.” [CITATION]. We review de novo whether testimony
constitutes hearsay. [CITATION].
¶ 62 An exception to the general rule against hearsay applies when a statement is offered “for
the limited purpose of showing the course of a police investigation where such testimony is
necessary to fully explain the State’s case to the trier of fact.” [CITATION]. A police
officer may testify to out-of-court conversations “when such testimony is not offered to prove the
truth of the matter asserted ***, but is used to show the investigative steps taken by the officer.”
[CITATION]; see also [CITATION] (a police officer may testify about certain conversations, including their substance, to
establish the course of an investigation rather than to prove the truth of the matter asserted, as long
as the testimony does not go to the “very essence of the dispute”). This is because statements by a
police officer which explain the investigatory process are not offered to prove the truth of the
matter asserted. [CITATION]. To prevent police officers from
explaining their conduct during an investigation puts them “in the false position of seeming just to
have happened upon the scene.” (Internal quotation marks omitted.) [CITATION].
- 18 - No. 1-21-1646
¶ 63 “Accordingly, a police officer may testify about a conversation that he had with an
individual and his actions pursuant to the conversation to recount the steps taken in his
investigation of the crime.” [CITATION], ¶ 41. “However, the
police officer may not testify to information beyond what was necessary to explain the officer’s
actions.” Id.
¶ 64 Here, defendant contends that Officer Kellam’s testimony that “flash messages” stated that
the offender was a black man with dreadlocks who went by the nickname “E-Dub,” had the legal
name “Ethan Prince,” and resided at 79th and St. Louis went to the very essence of the dispute,
that is, identified defendant as the offender.
¶ 65 We find [CITATION], to be instructive. In that case,
following a jury trial, the defendant was found guilty of first degree murder, attempted first degree
murder, and aggravated battery with a firearm. Id. ¶ 1. On appeal, the defendant first challenged
as inadmissible hearsay an officer’s testimony that, after receiving information from witnesses, a
“flash message” was issued for a white man named Michael Temple, with the nickname of White
Mike. Id. ¶ 59. This court agreed that the “naming” of the defendant in the “flash message” was
not “ ‘necessary to fully explain’ ” the course of the investigation. Nevertheless, this court found
any error was harmless because prior to the officer’s testimony another witness testified that the
defendant was the shooter and that he told the police that the defendant was the shooter. Id.
Therefore, the officer’s “improper testimony” about the “flash message” “simply duplicated
properly admitted evidence.” Id.
¶ 66 The defendant also challenged a second officer’s testimony that, after responding to a call
of “shots fired,” the officer received information which included a description of the offender’s
- 19 - No. 1-21-1646
vehicle and the name of a person wanted in connection with the shooting. [CITATION] ¶ 60. That officer
further testified that he obtained “last whereabouts” of the suspect and relocated to that area, where
he observed a vehicle matching the description of offender’s vehicle. (Internal quotation marks
omitted.) [CITATION] We found that testimony to be properly admitted as the officer’s statements regarding
the description of the vehicle and the suspect’s last known whereabouts were necessary to explain
why the officer proceeded to that area and how he identified the vehicle used in the shooting. [CITATION]
We noted that the officer did not “give any specifics of the description or the suspect[’]s name,”
but only testified to the extent necessary to explain his actions after receiving the information. [CITATION]
Therefore, the officer’s testimony fell within the scope of the police procedure exception to the
hearsay rule. [CITATION]
¶ 67 Similarly, here, the State did not introduce Officer Kellam’s testimony regarding the “flash
messages” to establish that defendant was actually involved in the offense, but rather to explain
Officer Kellam’s presence in the area where defendant was taken into custody. See [CITATION]
IL App (1st) 111653, ¶¶ 58, 60. Absent Officer Kellam’s testimony regarding the “flash
messages,” there would have been no explanation as to how he came to be in the vicinity of 79th
and St. Louis or why he stopped to speak to defendant. See, e.g., [CITATION]
1004 (an officer should be able to explain the officer’s presence and conduct rather than just
seeming to appear at the scene). As in [CITATION] however, the additional testimony detailing that
defendant was named in the flash message was not necessary to fully explain the course of the
investigation.
¶ 68 Nonetheless, “[i]nadmissible hearsay does not require reversal where there is no reasonable
probability the jury would have found the defendant not guilty had the hearsay been excluded.”
- 20 - No. 1-21-1646
[CITATION]. “ ‘When examining whether the admission of hearsay
was harmless, reviewing courts must ask whether there is a reasonable probability that the trier of
fact would have acquitted the defendant had the hearsay been excluded.’ ” [CITATION].
¶ 69 Here, prior to Officer Kellam testifying, defendant was identified as the driver of the Nissan
by Howard and Bauseman. Defendant makes no argument that Howard’s and Bauseman’s
identifications were improperly admitted. Therefore, as in [CITATION], any impropriety in Officer
Kellam’s testimony detailing that defendant was named in the “flash message” simply duplicated
properly admitted evidence—that defendant was the driver of the Nissan—and there is no
reasonable probability that the jury would have acquitted defendant had Officer Kellam’s
complained-of testimony been excluded. See [CITATION].
¶ 70 As there is no reasonable probability that the jury would have found defendant not guilty
absent Officer Kellam’s complained-of testimony, defendant cannot establish he was prejudiced
by trial counsel’s failure to object. [CITATION]. Therefore, his claim of
ineffective assistance must fail. See [CITATION] (the failure to establish either
prong of the Strickland test is fatal to an ineffective assistance claim).
¶ 71 Defendant finally contends that he was denied effective assistance by trial counsel’s
cumulative errors. However, as he has not established that he was prejudiced by either of counsel’s
complained-of inactions, he has not established that he was denied effective assistance. See [CITATION].
CONCLUSION
¶ 72 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 73 Affirmed.
- 21 -
====================== Since you have not provided specific text for processing, I'll demonstrate the process using a hypothetical example. Please provide the actual text if you want specific citations anonymized. Here's how I would handle an example text based on your instructions:
### Original Text
"In the matter of People v. Whitaker, 2024 IL App (1st) 232009, the court determined... Additionally, as seen in Jackson v. Board of Election Commissioners, 2012 IL 115234... However, in the significant case of People v. Lozano, this was particularly addressed..."
### Processed Text
"In the matter of [CITATION], the court determined... Additionally, as seen in [CITATION]... However, in the significant case of [CITATION], this was particularly addressed..."
If you provide the actual text for the court ruling, I can perform this specific task accurately.
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### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
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### Target Case:
2023 IL 128609
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 128609)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
FRANCISCO LOZANO, Appellant.
Opinion filed September 21, 2023.
CHIEF JUSTICE THEIS delivered the judgment of the court, with opinion.
Justices Neville, Overstreet, Holder White, Cunningham, Rochford, and
O’Brien concurred in the judgment and opinion.
OPINION
¶1 “No right is held more sacred *** by the common law, than the right of every
individual to the possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of law.”
(Internal quotation marks omitted.) Terry v. Ohio, 392 U.S. 1, 9 (1968). To justify
intruding on a person’s constitutionally protected interest to remain free from an
unreasonable search and seizure, a police officer must “point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Id. at 21. The question here is whether a
person’s act of running in the rain while holding the front of his pocket provided
police officers with a reasonable suspicion of criminal activity to justify an
investigatory stop consistent with the fourth amendment (U.S. Const., amend. IV)
and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 6). Under these facts,
we find that the officers lacked reasonable suspicion to stop the defendant.
Accordingly, we reverse the trial and appellate courts’ judgments.
¶2 BACKGROUND
¶3 Chicago police officers arrested defendant Francisco Lozano on February 20,
2018. The State subsequently charged him with burglary (720 ILCS 5/19-1(a)
(West 2018)) and possession of burglary tools (id. § 19-2(a)). Weeks later, under
section 114-12(a)(1) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-
12(a)(1) (West 2018)), defendant moved to suppress certain evidence that police
officers recovered when they arrested him—namely, a car radio, a wallet, and two
screwdrivers.
¶4 In his motion to suppress, defendant argued that, when the officers stopped,
detained, and searched him, they neither possessed a warrant to search him nor saw
him committing any crimes. Additionally, defendant argued that no circumstances
existed that would cause the officers to reasonably suspect that he had committed
or was about to commit any crimes. See id. § 107-14(a) (“A peace officer *** may
stop any person in a public place for a reasonable period of time when the officer
reasonably infers from the circumstances that the person is committing, is about to
commit or has committed an offense as defined in Section 102-15 of this Code
***.”). According to defendant, because the stop was unlawful, any evidence that
the officers recovered must be suppressed. Defendant further contended that the
officers lacked reasonable suspicion that he was armed and dangerous, making their
frisk of him unlawful as well.
¶5 On May 21, 2018, the Cook County circuit court conducted a hearing on
defendant’s motion. Chicago police officer Eulalio Rodriguez testified that on
February 20, 2018, at approximately 1:40 p.m., he and his partner were driving
-2-
southbound on Kedzie Avenue in an unmarked car. Rodriguez did not state that he
and his partner were responding to a specific report of crime or a 911 call; rather,
the officers were on patrol. Rodriguez also did not describe the neighborhood as a
high-crime area.
¶6 As Rodriguez was driving, the officers happened upon defendant, who was
“running at a fast rate of speed toward Kedzie.” Rodriguez noted that defendant
appeared to be holding his front pocket. He testified that he did not see defendant
committing any crime or violating any ordinance. He also acknowledged that it was
raining that day and wet outside.
¶7 Rodriguez made a U-turn on Kedzie Avenue so that the officers could stop
defendant. He testified that, after he turned the car and approached defendant,
defendant fled up the stairs of what appeared to be an abandoned building.
Rodriguez pursued defendant. He ordered him to stop and to remove both hands
from his pocket. At that point, Rodriguez saw a “big bulge” in defendant’s pocket.
In response to the officer’s command, defendant removed his left hand from his
pocket.
¶8 Rodriguez confirmed that defendant was already running when he encountered
him; defendant did not start running once he saw the officer. Rodriguez explained
that he tried to stop defendant before he ran up the stairs to “conduct a field
interview [to] ask him why he was running.” The officer also wanted “to see what
was the bulge,” and he later asserted that the bulge could have been a weapon.
According to Rodriguez, defendant was not free to leave at that time.
¶9 Rodriguez testified that, after he handcuffed defendant, he touched his hooded
sweatshirt and felt a rectangular box. He reached inside defendant’s front pocket
and recovered a wallet, two screwdrivers, and a radio. The officers then arrested
him. Rodriguez acknowledged that he did not have a warrant to either search or
arrest defendant.
¶ 10 Officer Jennifer Soto, Rodriguez’s partner on February 20, 2018, had activated
her body camera. At the hearing, the parties stipulated that she would testify that a
video, marked as petitioner’s exhibit 1, accurately reflected the incidents that
happened at 522 North Kedzie Avenue on February 20, 2018, at 1:39 p.m. After
the trial court admitted the video into evidence, defendant published it to the court.
-3-
¶ 11 In relevant part, the video showed that the sky was gray that afternoon and the
windshield wipers on the officers’ vehicle had been activated. The first time that
defendant appeared on the video, he was standing near the bottom of the apartment
building’s stairs and was facing Rodriguez, who was walking toward him.
Rodriguez grabbed defendant’s arm and walked him toward the unmarked police
vehicle as both officers ordered defendant to remove his hands from his pocket.
The video showed that the front pocket of defendant’s sweatshirt appeared to
contain a rectangular object.
¶ 12 Rodriguez directed defendant’s hands to the hood of the car and began to
handcuff him. Defendant appeared to be cooperating with the officers’ commands.
Rodriguez asked defendant where he was going and stated that defendant had
“turned back” when he saw the officers. Defendant replied that he was “going back
in the house.” Rodriguez asked what defendant “had on [him],” to which defendant
replied, “nothing sir.” Rodriguez asked defendant “who live[d]” in the building he
had attempted to enter. Defendant claimed that his friend lived there.
¶ 13 After he finished handcuffing defendant, Rodriguez asked what he was “going
to find,” as he reached into defendant’s pocket and began removing items from his
shirt. Rodriguez took from defendant’s shirt a wallet, followed by screwdrivers and
then a car radio. Rodriguez and defendant engaged in further conversation, but the
video did not capture what was said. Soto asked defendant why his hands were
bleeding, but his response was unclear. Rodriguez continued to sift through
defendant’s pockets while Soto asked him for identification. Defendant claimed
that he did not have any at the time. At the officer’s request, defendant gave her his
name, birthdate, and street address.
¶ 14 The parties rested after the court finished reviewing the video at the hearing.
The trial court first found that Rodriguez was credible. The court found that
defendant had “attract[ed] his attention [by] running with some kind of bulge in his
pants.” The court stated that, after Rodriguez made a U-turn, defendant ran “toward
an abandoned building trying to further get away from the officers.” The court also
asserted that, when defendant refused to show the officers his hands, the officers
“at that point detain[ed] him, thinking he might have a gun.” Accordingly, the trial
court found that the officers had not violated the fourth amendment by stopping or
frisking defendant, and it denied his motion to suppress evidence.
-4-
¶ 15 Defendant’s bench trial was conducted on June 21, 2018. The parties stipulated
to Rodriguez’s testimony from the suppression hearing. Rodriguez also testified at
defendant’s trial. He stated that, when he recovered the radio, wallet, and
screwdrivers from defendant, Rodriguez asked defendant where he had gotten the
items. Defendant told him that he had found the car radio on a street corner several
blocks away and that he found the wallet in a nearby alley. Rodriguez confirmed
that defendant was handcuffed at the time he made the statements and that officers
had not provided him with Miranda warnings (see Miranda v. Arizona, 384 U.S.
436 (1966)).
¶ 16 At a sidebar, defense counsel moved to suppress defendant’s statements. The
trial court denied his motion, asserting that “[i]t’s a pretrial motion” and “we are in
the middle of trial.” The trial court also stated that it was unsure whether Miranda
“attached” at the time defendant made the statements. The court advised defense
counsel to move on. During further examination of Rodriguez, the officer noted
that the wallet was worth roughly $30 and the car radio was worth roughly $250.
¶ 17 Soto testified that, when she looked through the wallet that Rodriguez recovered
from defendant, she found a student identification card from a nearby high school.
She went to the high school and spoke with the student, Jennelly Cherrez.
¶ 18 Cherrez testified that she drove to school around 7:45 a.m. on February 20,
2018. She parked her car near the intersection of Kedzie Avenue and Franklin
Boulevard, less than one block away from her school. Cherrez explained that she
left her wallet inside the middle compartment and that she left her purse in the back
seat of the car.
¶ 19 Shortly after 2 p.m. that day, Officer Soto met with Cherrez at her school. Soto
confirmed that the wallet belonged to her. Cherrez then led officers to the street
where she had parked. She found that the window on the right passenger side of the
car had been broken, the radio was missing, and the compartment where she had
left her wallet was open. Cherrez testified that she did not know defendant and had
not given him permission to enter her car or to possess her wallet and radio that
day.
¶ 20 The trial court observed that, when the officers detained defendant, he
possessed stolen property that had been taken in a burglary that day, along with
-5-
screwdrivers. The court found that those tools were necessary to loosen the radio
and pull it from the car. The trial court also determined that defendant had been
“evasive with the police, giving stories that” were unreasonable. The court ruled
that his possession of the stolen goods, “co-mingling with the burglary,” and
evading the police sufficed to find defendant guilty on both counts.
¶ 21 The trial court sentenced defendant to concurrent sentences of three years’
imprisonment on the burglary count and two years’ imprisonment for possession of
burglary tools. In August 2018, defendant moved the trial court to reconsider its
finding of guilt or, in the alternative, to set aside the guilty finding and grant him a
new trial. The court denied defendant’s motion. Defendant filed a notice of appeal.
¶ 22 Issuing three separate opinions, the appellate court affirmed defendant’s
convictions and sentences. The lead opinion found that Rodriguez had reasonable
suspicion to conduct a Terry stop of defendant where Rodriguez saw defendant
running on a rainy day in February, alone, with his hands either in or holding the
front pocket of his sweatshirt. 2022 IL App (1st) 182170, ¶ 34. It observed that,
when Rodriguez made a U-turn and drove in defendant’s direction, defendant ran
toward what appeared to be an abandoned apartment building and tried to enter it.
Id. The lead opinion concluded that defendant’s actions qualified as “ ‘strange
behavior,’ ” which supported a finding of reasonable suspicion sufficient to justify
the initial Terry stop. Id.
¶ 23 “At a minimum,” the lead opinion concluded, “Rodriguez could have suspected
that defendant was attempting to break into an abandoned building.” Id.
Acknowledging that the officer did not list that factor in his reasons for stopping
defendant, the lead opinion determined that it was “not limited to the officers’
subjective reasons for conducting a Terry stop.” Id. ¶ 39. The lead opinion also held
that “Rodriguez’s Terry frisk was justified to determine whether defendant was
holding a weapon in his sweatshirt pocket.” Id. ¶ 46. The lead opinion then ruled
that defendant’s motion to suppress statements was untimely and that Miranda did
not apply to this situation. Id. ¶ 57. Finally, the lead opinion held that sufficient
evidence supported defendant’s convictions. Id. ¶¶ 67-68.
¶ 24 The concurring justice considered “the Terry question very close but ultimately
agree[d] that the record support[ed] the validity of the Terry stop.” Id. ¶ 75 (Ellis,
J., specially concurring). The concurring justice found that “the officers violated
-6-
Miranda when they questioned defendant and that it was error to introduce that
testimony” but “would find that error harmless beyond a reasonable doubt under
the circumstances.” Id.
¶ 25 The dissenting justice observed that, at the suppression hearing, Rodriguez
testified that he stopped defendant for two reasons: (1) he wanted to know “ ‘why
he was running’ ” and (2) he wanted “ ‘to see what was the bulge.’ ” Id. ¶ 99
(Gordon, P.J., dissenting). He concluded that “a man running in a cold Chicago
rain, with a bulge in his pocket, up a stoop, and toward shelter” did not provide the
police with “a reasonable suspicion of criminal activity.” Id. ¶ 114. The dissenting
justice further found that the officers violated defendant’s Miranda rights when
they indisputably asked defendant questions about the seized property without first
providing him with Miranda warnings after he was already stopped. Id. ¶ 117.
¶ 26 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315
(eff. Oct. 1, 2021).
¶ 27 ANALYSIS
¶ 28 At issue is whether the trial court erred in denying defendant’s motion to
suppress evidence because the police officers subjected him to an unlawful search
and seizure in violation of the fourth amendment and article I, section 6, of the
Illinois Constitution.
¶ 29 When reviewing a trial court’s ruling on a motion to suppress evidence, this
court affords deference to the trial court’s factual findings and will reject those
findings only if they are against the manifest weight of the evidence. People v.
Lindsey, 2020 IL 124289, ¶ 14. That said, we review the ultimate question of
whether the evidence should be suppressed de novo. People v. Colyar, 2013 IL
111835, ¶ 24; see also People v. Crane, 195 Ill. 2d 42, 51 (2001) (“A reviewing
court *** remains free to engage in its own assessment of the facts in relation to
the issues presented and may draw its own conclusions when deciding what relief
should be granted.”).
¶ 30 “Both the fourth amendment to the United States Constitution and article I,
section 6, of the Illinois Constitution of 1970 guarantee the right of individuals to
-7-
be free from unreasonable searches and seizures.” People v. Carter, 2021 IL
125954, ¶ 22. This court has interpreted section 6’s search and seizure provision in
a manner that is consistent with the United States Supreme Court’s fourth
amendment jurisprudence. People v. Pittman, 211 Ill. 2d 502, 513 (2004).
¶ 31 This case involves an encounter between a private citizen and a police officer
on a public street, and it is governed by Terry. In Terry, a detective with more than
30 years’ experience was patrolling a particular area for shoplifters and
pickpockets. 392 U.S. at 5. The officer saw two men look into a store window, walk
a short distance, turn around, and then walk back toward the corner to again look
into the same store window. Id. at 6. When the men repeated this ritual numerous
times, the officer suspected them of “casing a job, a stick-up,” and “he considered
it his duty as a police officer to investigate further.” (Internal quotation marks
omitted.) Id. He approached the men, informed them that he was a police officer,
and asked for their names. Id. at 6-7. After the men “ ‘mumbled something’ in
response,” the officer grabbed the petitioner, spun him around, and patted down the
outside of his clothing. Id. at 7. The officer felt a pistol in the petitioner’s overcoat,
and he reached inside the coat to remove it. Id.
¶ 32 In denying the petitioner’s motion to suppress, the trial court concluded that,
based on his experience, the officer “ ‘had reasonable cause to believe *** that the
defendants were conducting themselves suspiciously, and some interrogation
should be made of their action.’ ” Id. at 8. The court also determined that “the
officer had the right to pat down the outer clothing of these men, who he had
reasonable cause to believe might be armed.” Id. The trial court further ruled that
“a ‘frisk’ of the outer clothing for weapons” “was essential to the proper
performance of the officer’s investigatory duties.” Id.
¶ 33 The question before the United States Supreme Court was “whether it is always
unreasonable for a policeman to seize a person and subject him to a limited search
for weapons unless there is probable cause for an arrest.” Id. at 15. The Court
observed that the fourth amendment “provides that the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated.” (Internal quotation marks omitted.) Id. at 8. To
determine whether the search and seizure was unreasonable, the Court assessed
(1) whether the officer’s action was justified at its inception and (2) whether it was
-8-
reasonably related in scope to the circumstances that justified the interference in
the first place. Id. at 19-20.
¶ 34 The Court explained that, to justify a search and seizure, “the police officer
must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21.
The Court also concluded that
“[w]hen an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to
the officer or to others, it would appear to be clearly unreasonable to deny the
officer the power to take necessary measures to determine whether the person
is in fact carrying a weapon and to neutralize the threat of physical harm.”
(Emphasis added.) Id. at 24.
¶ 35 Thus, a temporary detention and pat down for weapons will be upheld “as
constitutionally permissible if two conditions are met.” Arizona v. Johnson, 555
U.S. 323, 326 (2009). First, to conduct a lawful investigatory stop, the police officer
must reasonably suspect that the person apprehended is committing or has
committed a criminal offense. Id. “When considering whether an officer was
justified in making an investigatory stop, ‘the facts should not be viewed with
analytical hindsight, but instead should be considered from the perspective of a
reasonable officer at the time that the situation confronted him.’ ” People v. Scott,
148 Ill. 2d 479, 503 (1992) (quoting People v. Long, 99 Ill. 2d 219, 229 (1983)).
“Second, to proceed from a stop to a frisk, the police officer must reasonably
suspect that the person stopped is armed and dangerous.” Johnson, 555 U.S. at 326-
27.
¶ 36 In this case, defendant was seized when Rodriguez confronted him and ordered
him to come down from the apartment building’s stairs. See People v. Thomas, 198
Ill. 2d 103, 111 (2001) (“A person has been seized within the meaning of the fourth
amendment *** when, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he or she was not free to leave.”); see
also Terry, 392 U.S. at 16 (“[W]henever a police officer accosts an individual and
restrains his freedom to walk away, he has ‘seized’ that person.”). Accordingly, we
must assess whether the facts available to Rodriguez when he encountered
defendant on the stairs provided the officer with “a reasonable suspicion based upon
-9-
specific and articulable facts that the person has committed, or is about to commit,
a crime.” People v. Brownlee, 186 Ill. 2d 501, 518 (1999); see United States v.
Street, 917 F.3d 586, 593 (7th Cir. 2019) (“To determine whether a Terry stop was
reasonable, we ‘must consider the totality of circumstances known to the officer at
the time of the stop.’ ” (quoting United States v. Quinn, 83 F.3d 917, 921 (7th Cir.
1996))).
¶ 37 At the time of the seizure in this case, the facts available to the officer were that
it was raining, defendant had been running and was holding the front of his
sweatshirt as he ran, defendant attempted to run up the stairs of an apartment
building upon encountering the officer, and there was a large bulge in the front of
his sweatshirt. As Rodriguez explained at the suppression hearing, he tried to stop
defendant before he ran up the stairs to “ask him why he was running” and because
he wanted “to see what was the bulge.” Although “ ‘reasonable suspicion’ ***
requires a showing considerably less than preponderance of the evidence, the
Fourth Amendment requires at least a minimal level of objective justification for
making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). “The officer must
be able to articulate more than an inchoate and unparticularized suspicion or hunch
of criminal activity.” (Internal quotation marks omitted). Id. at 123-24.
¶ 38 Among the factors that may support an officer’s claim that he had reasonable
suspicion to stop and frisk a person are whether “the stop occurred in a ‘high crime
area’ ” (id. at 124), whether the incident occurred late at night or in the early hours
of the morning (Adams v. Williams, 407 U.S. 143, 147-48 (1972)), whether the
person engaged in “unprovoked flight” from police officers (Wardlow, 528 U.S. at
125), and whether the person’s behavior was consistent with the officer’s
knowledge of criminal activity (Terry, 392 U.S. at 6 (“after observing their
elaborately casual and oft-repeated reconnaissance of the store window ***, [the
officer] suspected the two men of ‘casing a job, a stick-up’ ”)).
¶ 39 None of these factors weigh in favor of finding that the officers had reasonable
suspicion to conduct a Terry stop. Based on Rodriguez’s testimony, the officers
were not responding to a particular report of crime in the area when they happened
upon defendant. Neither Rodriguez nor Soto stated that the neighborhood was a
high-crime area, and the stop occurred in the middle of the afternoon. Although
defendant attempted to run up the apartment building’s stairs when he saw
- 10 -
Rodriguez, the officer testified that defendant had been running from the first
moment they saw him. Thus, his continued running cannot be seen as “unprovoked
flight” from the officers. Further, Rodriguez did not testify that defendant’s conduct
conformed with his knowledge of criminal activity. He simply wanted to know why
defendant was running and what item caused a bulge in defendant’s pocket.
¶ 40 The facts available to Rodriguez at the time of the seizure demonstrate that he
lacked reasonable suspicion that defendant had committed or was about to commit
a crime. Accordingly, we hold that the Terry stop in this case was unlawful. See
State v. Weyand, 399 P.3d 530, 535-36 (Wash. 2017) (en banc) (holding that a
police officer’s belief that the defendant “was acting suspiciously by walking
quickly to his car and looking up and down the street” after leaving a “ ‘known’
drug house” did not provide the reasonable suspicion of criminal activity necessary
to justify an investigatory stop); People v. Croft, 346 Ill. App. 3d 669, 675-76
(2004) (an officer’s belief that it “ ‘just seemed strange’ ” for the defendant to walk
his bicycle down a street at 11:15 p.m. in a neighborhood where acts of vandalism
had occurred days before was insufficient to establish reasonable suspicion that a
crime had been or was about to be committed); see also People v. Shipp, 2015 IL
App (2d) 130587, ¶ 46 (“That defendant placed his hands in his pockets was,
standing alone, insufficient, especially when it was January and defendant had no
gloves.”).
¶ 41 Before this court, the State asserts that the officers “could have reasonably
concluded that defendant was either carrying and concealing contraband or trying
to break into an abandoned building, or both.” Thus, they contend that the officers
had the reasonable suspicion of criminal activity necessary for a valid investigatory
stop under Terry. Although the State attempts to piece together facts to justify an
investigatory stop, the question for this court is whether it was objectively
reasonable for the officers to suspect that criminal activity was afoot when
defendant was running alone in the rain with his hands in his pocket at 1:39 p.m. in
a neighborhood that, so far as we know from the record, was not a particularly high-
crime area. See People v. Timmsen, 2016 IL 118181, ¶ 18 (observing that “a
reasonable suspicion determination *** considers the totality of the circumstances
of each case”). We conclude that it was not objectively reasonable for the officers
to make an investigatory stop under these circumstances.
- 11 -
¶ 42 We further hold that the officer’s frisk of defendant was unlawful when
Rodriguez lacked any reasonable suspicion that defendant was armed and
dangerous. See Thomas, 198 Ill. 2d at 109 (noting that the validity of an
investigatory stop “is a separate question from whether a search for weapons is
valid”). A search in this context “must be limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others nearby.”
Terry, 392 U.S. at 26. As we have observed, “[a] weapons frisk is valid only when
the officer has reason to believe that a particular individual is armed and
dangerous.” People v. Flowers, 179 Ill. 2d 257, 266 (1997).
¶ 43 Here, defendant was handcuffed when Rodriguez searched him, and he had not
been resisting the officers even before he was handcuffed. Rodriguez asserted that
he conducted a protective pat down of defendant’s sweatshirt and felt “a rectangular
square box, which [was] a radio.” Nonetheless, he reached into defendant’s pocket
and retrieved a wallet, two screwdrivers, and the radio. Nothing in either
Rodriguez’s testimony or his conduct on the video suggests that he or Soto believed
that defendant was presently dangerous. See id. at 263 (“The sole justification for
the search allowed by the Terry exception is the protection of the police officer and
others in the vicinity, not to gather evidence.”).
¶ 44 When the police violate a defendant’s constitutional rights by, for instance,
conducting an unconstitutional search or seizure, the constitutional violation is
termed a “ ‘poisonous tree.’ ” People v. Winsett, 153 Ill. 2d 335, 351 (1992). Any
evidence that the State obtains by exploiting the constitutional violation is subject
to suppression as the “ ‘fruit’ ” of that poisonous tree. Id.; see Terry, 392 U.S. at 15
(“[C]ourts still retain their traditional responsibility to guard against police conduct
*** which trenches upon personal security without the objective evidentiary
justification which the Constitution requires. When such conduct is identified, it
must be condemned by the judiciary and its fruits must be excluded from evidence
in criminal trials.”). “[T]he exclusionary rule encompasses both the primary
evidence obtained as a direct result of an illegal search or seizure and *** evidence
later discovered and found to be derivative of an illegality, the so-called fruit of the
poisonous tree.” (Internal quotation marks omitted.) Utah v. Strieff, 579 U.S. 232,
237 (2016).
- 12 -
¶ 45 Yet, “evidence which comes to light through a chain of causation that began
with an illegal seizure is not per se inadmissible.” People v. Henderson, 2013 IL
114040 ¶ 34. Instead, “a court must consider whether the chain of causation
proceeding from the unlawful conduct has become so attenuated or has been
interrupted by some intervening circumstance so as to remove the taint imposed
upon that evidence by the original illegality.” (Internal quotation marks omitted.)
Id. ¶ 33.
¶ 46 In this case, Rodriguez improperly searched and seized defendant within a
matter of moments, and no intervening circumstance removed the taint from the
original illegality. Thus, the evidence that officers obtained from Rodriguez’s
unlawful search and seizure of defendant was subject to suppression as fruit of the
poisonous tree. The trial court erred in ruling otherwise.
¶ 47 Without the evidence that was improperly obtained, the State cannot prove the
charges for burglary and possession of burglary tools. Therefore, we reverse
defendant’s convictions outright. See, e.g., People v. Eubanks, 2019 IL 123525,
¶ 100 (“Because the State cannot prove the aggravated DUI charge without that
evidence, we affirm the appellate court’s judgment reversing that conviction
outright.”).
¶ 48 CONCLUSION
¶ 49 For these reasons, we hold that the trial court erred in denying defendant’s
motion to suppress evidence, and we reverse defendant’s convictions outright.
¶ 50 Judgments reversed.
- 13 -
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Law
9882823
[SEGMENT 1]
[CITE AS [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-23-1300
Appellee Trial Court No. CR0199306193
v.
Ismael Vasquez DECISION AND JUDGMENT
Appellant Decided: August 2, 2024
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Timothy F. Sweeney, for appellant.
*****
SULEK, P.J.
{¶ 1} Appellant Ismael Vasquez appeals the judgment of the Lucas County Court
of Common Pleas denying his Crim.R. 32.1 post-sentence motion to withdraw his guilty
plea. For the following reasons, the trial court’s judgment is reversed.
I. Factual Background and Procedural History
{¶ 2} On August 4, 1992, V.H. was found having been beaten to death. Vasquez
was indicted in relation to the murder. On January 12, 1994, he entered a plea of guilty
pursuant to [CITATION] to the lesser offense of murder in violation of R.C. 2903.02 and was sentenced to 15 years to life in prison. Vasquez never appealed his
conviction.
{¶ 3} Nearly 30 years later, on February 14, 2023, Vasquez filed a Crim.R. 32.1
motion to withdraw his guilty plea, asserting that he received newly discovered
exculpatory evidence that the State unlawfully withheld from him. The State opposed
Vasquez’s motion, arguing that the trial court lacked jurisdiction to consider it.
{¶ 4} On November 20, 2023, the trial court entered its judgment denying
Vasquez’s motion to withdraw his guilty plea. The court determined that it had no
jurisdiction to hear a Crim.R. 32.1 motion to withdraw a guilty plea after the time for an
appeal from the conviction had expired.[CITATION]
II. Assignment of Error
{¶ 5} Vasquez timely appealed the trial court’s November 20, 2023 judgment,
asserting one assignment of error for review:
. The trial court committed reversible error and misapplied
controlling law, including from the Ohio Supreme Court and the Sixth
Appellate District, in ruling that it did not have jurisdiction to hear and
determine, and in thus denying, Appellant’s well-supported and timely
motion under Ohio Crim. R. 32.1 to withdraw his January 1994 Alford plea
to an August 1992 murder offense, allegedly committed when Appellant
[CITATION]
In its decision, the trial court found that Vasquez had attempted to file a delayed appeal,
which was denied. Vasquez asserts, and the State concedes, that no such delayed appeal
was attempted.
2. was 16 years old, in circumstances where the State’s recently-revealed
suppression of numerous exculpatory materials in violation of its duties
under [CITATION] and Crim.R. 16 resulted in a plea that was not
made knowingly, intelligently, and voluntarily and in a miscarriage of
justice.
III. Analysis
{¶ 6} In his assignment of error, Vasquez argues that the trial court erred in
denying for lack of jurisdiction his Crim.R. 32.1 post-sentence motion to withdraw his
guilty plea. Crim.R. 32.1 provides, “A motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea.”
{¶ 7} Ordinarily, an appellate court reviews the denial of a post-sentence motion
to withdraw a guilty plea for an abuse of discretion. [CITATION], ¶
21 (6th Dist.). Where the trial court decides that it lacks jurisdiction to consider the
motion, however, that decision is reviewed de novo. [CITATION], ¶ 14
(10th Dist.) (“[A]n appellate court reviews questions of law, including whether a trial
court has subject-matter jurisdiction to consider a motion to withdraw a guilty plea, under
a de novo standard.”).
{¶ 8} The issue presented in this case is whether the trial court retains jurisdiction
to entertain a post-sentence motion to withdraw a guilty plea where the time for filing an
appeal from the conviction has expired and no appeal has been taken.
3. {¶ 9} As a starting point, “Crim.R. 32.1 does not provide a time limit for moving
to withdraw after a sentence is imposed.” [CITATION], ¶ 15. In
[CITATION], however, the Ohio Supreme Court curtailed the ability of a defendant to
file a post-sentence motion to withdraw a guilty plea:
Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and
determine a motion to withdraw the guilty plea subsequent to an appeal and
an affirmance by the appellate court. While Crim.R. 32.1 apparently
enlarges the power of the trial court over its judgments without respect to
the running of the court term, it does not confer upon the trial court the
power to vacate a judgment which has been affirmed by the appellate court,
for this action would affect the decision of the reviewing court, which is not
within the power of the trial court to do.
{¶ 10} Recently, the rule in [CITATION] has been called into question by
[CITATION], ¶ 11. In [CITATION], the Ohio Supreme Court
recognized that a “trial court’s jurisdiction over a criminal matter is limited once the
proceedings are complete. Generally, a trial court loses jurisdiction to modify its
judgment once that judgment has been affirmed on appeal.” Id. It further commented
that “[r]elief from judgments in criminal cases is confined to the procedures authorized
by statute or rule,” specifically listing Crim.R. 32.1, and “[o]utside of those procedures,
there is no statute or criminal rule permitting a trial court to sua sponte substantively
change a defendant’s sentence after that sentence has been affirmed on direct appeal.” Id.
4.
====== End of the part of the Court Ruling ====== Some courts have read Janas to mean that “Special Prosecutors can no longer be
construed as divesting a trial court of its continuing jurisdiction over post-sentence
motions that are permitted by the Ohio Rules of Criminal Procedure or Ohio law.” [CITATION]; see also [CITATION].
{¶ 11} Vasquez asks this court to join the Tenth, Eighth, and Ninth Districts in no
longer enforcing the rule in Special Prosecutors. Upon review, that issue does not need
to be decided in this case. The rule in Special Prosecutors applies where a conviction has
been affirmed on appeal because a lower court cannot take an action that affects the
decision of a reviewing court. But here, no appeal was taken from Vasquez’s conviction.
Thus, Special Prosecutors is not implicated, no time limit exists for filing a Crim.R. 32.1
post-sentence motion to withdraw a guilty plea, and the trial court retains jurisdiction to
consider Vasquez’s motion.
{¶ 12} The State, arguing against this result, cites prior decisions from this court
that it claims expands the rule of Special Prosecutors to deprive a trial court of
jurisdiction where, although no direct appeal was filed, the time for filing such an appeal
had expired. In [CITATION], this court quoted, “It has
long been held that a trial court has no authority to even consider a motion to withdraw a
plea after a conviction has been affirmed on appeal; or, if there was no appeal, after the
time for filing the original appeal has passed.” Id. at ¶ 10, quoting [CITATION]. This court quoted the same language again in [CITATION].
5.
====== End of Part ====== {¶ 13} Importantly, though, neither [CITATION] nor [CITATION] involved a post-
sentence motion to withdraw a guilty plea being denied for lack of jurisdiction where a
direct appeal was not taken and the time for filing a direct appeal had expired. In [CITATION],
this court held that the trial court lacked jurisdiction because Caston’s conviction “was
expressly affirmed on appeal and the matter was remanded to the trial court solely for the
purpose of dealing with the merger issue.” [CITATION] at ¶ 11. In [CITATION], the post-sentence
motion to withdraw the guilty plea was denied on the basis of res judicata, not lack of
jurisdiction. [CITATION] at ¶ 29. In [CITATION], like [CITATION], the conviction was affirmed on appeal
but the matter was remanded for “the limited purpose of applying the appropriate
procedures to merge the counts.” (Emphasis sic.) [CITATION] at ¶ 13. Therefore, those cases
cannot be relied upon as an expansion of the Special Prosecutors rule.
{¶ 14} Instead, this court has adopted the analytical framework originally
articulated in the concurring opinion in [CITATION]:
[SEGMENT 2]
In step one, the question is whether the defendant’s conviction was
appealed and affirmed on appeal? If the answer is yes, then the trial court
has no jurisdiction to entertain the post-sentence motion to withdraw under
Special Prosecutors. If the answer is no, the court must proceed to step
two. In step two, the question is whether the defendant relies upon
evidence contained within the trial court record to support his post-sentence
motion to withdraw? If the answer is yes, then the defendant’s motion is
barred by res judicata under [CITATION] and its progeny. If the answer is no, the
court must proceed to step three.
6. In step three, which is applicable where the defendant did not appeal his
conviction and raises arguments to support his post-sentence motion to
withdraw that rely upon evidence outside the trial record, the trial court
must address the motion on its merits and ascertain whether the defendant
should be allowed to withdraw his plea post-sentence in order to correct
manifest injustice as provided in Crim.R. 32.1.
[CITATION] at ¶ 34 (Zmuda, P.J., concurring); [CITATION], ¶ 11-16 (6th
Dist.); [CITATION], ¶ 11-12 (6th Dist.); see also [CITATION] at ¶ 5
(“[W]hile there is no jurisdictional bar to a trial court’s entertaining a postsentence
Crim.R. 32.1 motion where there has been no appeal, the doctrine of res judicata does bar
a defendant from raising in that motion those matters that ‘could fairly [have] be[en]
determined’ in a direct appeal from his conviction, without resort to evidence outside the
record.”).2
{¶ 15} In this case, the analysis never proceeded beyond the first step. Because
Vasquez never appealed his conviction, however, the trial court retained jurisdiction to
consider his Crim.R. 32.1 post-sentence motion to withdraw his guilty plea. Therefore,
the trial court erred when it denied the motion for lack of jurisdiction and without
2
The concurring opinion seeks to overturn this court’s precedence in [CITATION] for the same reason cited by Vasquez, which is that the rule in Special
Prosecutors should no longer be enforced. As mentioned above, however, the issue of
whether a trial court retains jurisdiction to entertain a Crim.R. 32.1 motion to withdraw a
guilty plea following an appeal is not before this court. Thus, any argument on the
continued viability of the test announced in [CITATION] is best left for
another day and for a case that squarely presents the issue.
7. considering whether Vasquez’s motion was barred by res judicata, and if it was not,
whether it succeeded on the merits.
{¶ 16} Accordingly, Vasquez’s assignment of error is well-taken.
IV. Conclusion
{¶ 17} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas is reversed and the matter is remanded to the trial court for further
proceedings consistent with this decision. The State is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment reversed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also [CITATION].
Thomas J. Osowik, J. ____________________________
JUDGE
Charles E. Sulek, P.J.
CONCUR ____________________________
JUDGE
Christine E. Mayle, J. ____________________________
CONCURS AND WRITES JUDGE
SEPARATELY.
MAYLE, J.
{¶ 18} I concur in the judgment of the majority because I agree that the trial court
has jurisdiction to consider Vasquez’s Crim.R. 32.1 motion. I write separately because
several of this court’s cases—some of which the majority cites but distinguishes—
contain statements of law that are no longer accurate following the Ohio Supreme Court’s
8. decisions in [CITATION], and [CITATION].3 Moreover, under [CITATION] and [CITATION], the first
step of the three-step analysis relied on by the majority is invalid.
{¶ 19} In [CITATION], the Ohio Supreme Court held that “the holding in [CITATION] does not bar the trial court’s jurisdiction over posttrial
motions permitted by the Ohio Rules of Criminal Procedure” because “[t]hese motions
provide a safety net for defendants who have reasonable grounds to challenge their
convictions and sentences.” Id. at ¶ 37. It more specifically recognized in [CITATION] that
relief from final judgment may be sought under procedures authorized by statute or rule,
including under Crim.R. 32.1. Id. at f.n. 3. [CITATION] did not qualify this statement to allow
trial-court jurisdiction only in cases that were not directly appealed.
{¶ 20} Notwithstanding these decisions, this court has continued to perpetuate the
proposition that a trial court lacks jurisdiction to consider a motion to withdraw a plea
under Crim.R. 32.1 after a conviction has been affirmed or the time for filing an original
appeal has passed. See, e.g., [CITATION], ¶ 23 (6th Dist.) (“[CITATION]”), quoting [CITATION], quoting [CITATION],
¶ 11 (3d Dist.) (“[A] trial court has no authority to even consider a
motion to withdraw a plea after a conviction has been affirmed on appeal; or, if there was
no appeal, after the time for filing the original appeal has passed.”) (Internal quotations
3
To avoid confusion among the several “Davis” decisions, I am including the
defendants’ first names when referencing [CITATION], and [CITATION].
9. omitted.); [CITATION] (“[A] trial court has no
jurisdiction to determine a motion to withdraw a guilty plea once the original judgment is
appealed.”); [CITATION], citing [CITATION] (“Crim.R. 32.1 does not vest jurisdiction in the trial court to determine a motion
to withdraw a guilty plea which is filed subsequent to an appeal and an affirmance by the
appellate court.”). These statements are simply incorrect under Roland Davis and Janas.
{¶ 21} The majority also cites with approval the concurring opinion in Anton
Davis, which sets forth a three-step analysis for determining whether a court may
entertain a Crim.R. 32.1 motion to withdraw a plea. The first step requires the court to
determine whether the defendant’s conviction was appealed and affirmed on appeal.
Under this analysis, if the conviction “was appealed and affirmed on appeal . . . then the
trial court has no jurisdiction to entertain the post-sentence motion to withdraw. . . .” Id.
at ¶ 34. The majority finds that Vasquez never filed a direct appeal, thus the trial court
retained jurisdiction to consider his Crim.R. 32.1 motion. But reciting and applying this
three-step analysis reinforces an incorrect legal proposition. We should simply
acknowledge that in some of our cases, including Anton Davis, we have mistakenly
overlooked the impact of the Ohio Supreme Court’s decisions in Roland Davis and
Janas.
{¶ 22} The Tenth District appropriately owned up to this mistake in [CITATION]. In Enyart, after the trial court denied several
motions to suppress, the defendant pled no contest in 2008 to numerous charges, was
found guilty, and was sentenced to maximum, consecutive prison sentences. On direct
10. appeal, he argued that his no contest pleas were involuntary and the trial court failed to
comply with Crim.R. 11 in accepting them. The Tenth District affirmed his convictions
([CITATION]). In 2009, it granted the defendant’s application to reopen his appeal based on
a claim of ineffective assistance of appellate counsel, but ultimately, overruled the
assigned error ([CITATION]).
{¶ 23} In April 2017, the defendant filed his first motion to withdraw his no
contest plea under Crim.R. 32.1 on the basis that he had recently discovered evidence
proving that police illegally searched his home before serving him with a search warrant.
The trial court denied the motion and in 2018, the Tenth District affirmed ([CITATION]).
Relying on [CITATION], it found, sua sponte, that the trial court lacked
jurisdiction to consider the defendant’s Crim.R. 32.1 motion because his conviction had
been affirmed on appeal.
{¶ 24} In May 2022, the defendant filed a second motion to withdraw his no
contest plea under Crim.R. 32.1. This time he accused the State of withholding portions
of the police file. He claimed that he had only recently obtained the entire case file as
part of a settlement of a civil suit and through a public records request. He characterized
the evidence as newly discovered. Relying on [CITATION], the trial court denied the
motion for lack of jurisdiction. The defendant appealed.
{¶ 25} The Tenth District observed that generally, appellate courts will not make
legal arguments for an appellant, and the defendant provided no legal authority to the trial
court to explain why [CITATION] was wrongly decided. Nevertheless, it acknowledged that
[SEGMENT 3]
it had a duty to perpetuate “legally sound decisions by applying the correct controlling
11. precedent.” [CITATION] at ¶ 22. It recognized that where “‘a statement of law is incorrect, a court
should not forbear to correct the error on the principal of stare decisis, but should right
the wrong at the earliest opportunity.’” [CITATION], quoting [CITATION],
1990 WL 40146, *2 (6th Dist. Apr. 6, 1990), citing [CITATION], 19 Ohio St. 55, 62
(1869).
{¶ 26} The Tenth District explained that in [CITATION] III, it relied on the Supreme
Court of Ohio’s “unambiguous holding in [CITATION] that ‘Crim. R. 32.1 does
not vest jurisdiction in the trial court to maintain and determine a motion to withdraw [a]
guilty plea subsequent to an appeal and an affirmance by the appellate court.’” [CITATION] at ¶
23, quoting [CITATION] at 97. However, it observed that in the years after
[CITATION], the Supreme Court reversed course as articulated in both [CITATION]. It concluded that “[a]s a result, [CITATION] can no longer be
construed as divesting a trial court of its continuing jurisdiction over post-sentence
motions that are permitted by the Ohio Rules of Criminal Procedure or Ohio law.” [CITATION] at
¶ 26. As such, it found that contrary to [CITATION] III, “[CITATION] no longer applies
to post-sentence motions to withdraw a guilty or no contest plea filed pursuant to Crim.R.
32.1.” [CITATION] It acknowledged its mistake in continuing to hold otherwise after [CITATION]. It
explained that it could not “in good conscience and in light of [CITATION], continue to
adhere—or issue precedent that binds trial courts to adhere—to [CITATION] in
disposing of any postconviction motions authorized by statute or the criminal rules on
jurisdictional grounds.” [CITATION] It found that the trial court had jurisdiction to consider the
12. merits of the defendant’s motion to withdraw his plea, and reversed and remanded to the
trial court.
{¶ 27} Like the Tenth District in [CITATION], I believe we must explicitly acknowledge
that we have mistakenly continued to cite [CITATION] for a proposition of law
that was abrogated by [CITATION] and [CITATION]. A trial court does maintain jurisdiction
to consider a post-sentence Crim.R. 32.1 motion. To that end, we should not cite or
apply the first step of the [CITATION] analysis.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
13. **===== Part of a Court Ruling =====**
[edit]
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230644
TRIAL NO. B-2304311
Plaintiff-Appellee, :
vs. :
O P I N I O N.
DEMARCO GOWDY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 8, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Brian T. Goldberg, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} Surveillance camera footage in a McDonald’s parking lot showed
defendant-appellant Demarco Gowdy engaged in a fight with another man where
Gowdy used a firearm to bludgeon and shoot his adversary. Fortunately, he survived.
{¶2} Facing felonious-assault charges, Gowdy filed a notice of self-defense
and prepared to go to trial. But after the trial court reviewed the surveillance footage
and told Gowdy that it would not provide a self-defense jury instruction, Gowdy
pleaded guilty to reduced charges. Gowdy now appeals, arguing his plea was coerced
and therefore involuntary because the trial court prematurely ruled on the issue of
self-defense without hearing all the evidence at trial.
{¶3} The trial court misstated the self-defense law by saying that Gowdy had
“to prove something” before the trial court would provide a self-defense instruction.
Further, the trial court erroneously weighed the evidence and prematurely ruled on
the issue of self-defense before hearing all the evidence. But because we hold that
Gowdy’s decision to plead guilty to reduced charges was knowing, voluntary, and
intelligent, we affirm the trial court’s judgment.
I. Facts and Procedure
{¶4} In August 2023, Gowdy fought Mohammad Diol in a McDonald’s
parking lot. During the fight, Gowdy drew a firearm with which he bludgeoned and
shot Diol, who sustained nonfatal injuries.
{¶5} The state indicted Gowdy on one count of felonious assault in violation
of R.C. 2903.11(A)(2), with two firearms specifications, and one count of felonious
assault in violation of R.C. 2903.11(A)(1) with a forfeiture specification. Gowdy
pleaded not guilty and later filed a notice of self-defense.
OHIO FIRST DISTRICT COURT OF APPEALS
A. The trial court viewed a video of the altercation
{¶6} In October 2023, Gowdy appeared for a plea or trial setting where the
state requested a continuance because Diol was still recovering in the hospital from
his gunshot injuries. After Gowdy’s attorney informed the court that he had not yet
received surveillance video of the altercation, the court asked if Gowdy wanted the
court to watch the video. The court noted, “Sometimes I shortcut a lot of trials by
watching the video.” Initially, Gowdy said no. After the court granted the state’s
request for a continuance, Gowdy requested a bond reduction and the trial court
responded that it wanted to watch the video before ruling on the motion. Gowdy
agreed, and the court took a break to review the footage. After reconvening, the court
chose a November 2023 trial date to give Diol time to recover from his injuries.
{¶7} Gowdy asked for evidence that Diol was still in the hospital. The trial
court cautioned Gowdy and replied:
THE COURT: We’ve seen the video.
THE DEFENDANT: Yes, sir.
THE COURT: The video does not look good for you. I’ll tell you that right
off the bat.
THE DEFENDANT: I understand.
THE COURT: I mean you shot an unarmed man, so it’s on video.
THE DEFENDANT: He tried to take my gun off me while we was
tussling in the back of my car.
THE COURT: You brought the gun to the fist fight. You actually brought
a fist fight [sic] to the fist fight. You waited for him outside of a
McDonald’s.
OHIO FIRST DISTRICT COURT OF APPEALS
THE DEFENDANT: I was Door Dashing.
THE COURT: We saw the Door Dash parking area. You weren’t in the
Door Dash area.
THE DEFENDANT: There weren’t no more parking space.
THE COURT: Yes, there were. It’s on the video. There were five available
parking spaces. See, everything you’re telling me you need to watch
because it’s all on video. There were five spaces available and you didn’t
get out to get any food. You waited for him to come out with his food
and start the fight and you shot him.
THE DEFENDANT: I honestly --
THE COURT: If you want to have this conversation with me, that’s
between you and your attorney. Everything you’re telling me is just
digging a deeper hole.
{¶8} The trial court then denied Gowdy’s request to reduce bond.
B. Gowdy pleaded guilty to reduced charges
{¶9} On the day of trial, Gowdy’s attorney confirmed that Gowdy wanted to
proceed with a jury trial. But before the trial started, the court reviewed with Gowdy
his potential sentence, asked if Gowdy had watched the surveillance video, and then
told Gowdy, “[Y]our attorney is asking me for a self-defense charge to the jury, which
I don’t know if I’m going to grant at this point, but we’ll get to that in a moment.” The
court told Gowdy that a self-defense jury instruction required establishing certain
elements. The court continued:
THE COURT: So after reviewing the video and seeing everything that
occurred that day -- because the video was very clear -- I don’t think
[SEGMENT 4]
OHIO FIRST DISTRICT COURT OF APPEALS
you’re going to be able to meet your burden of proof on establishing the
first cause of self-defense, that you did not start the altercation. That’s
just the first tier, that you did not start the altercation.
In viewing the video, you were parked outside the McDonald’s.
It looked like you were waiting for the victim to come out, and you
approached him first.
He had food in his hand, he had no intention on [sic] getting into
a fight that day, but it looks as though you started the fight.
And then you brought a gun to a fistfight, so I don’t know -- even
after you testify -- if you’re going to be able to complete the elements of
self-defense.
So I’m telling you that now so that you can make an informed
decision that I probably won’t give the instruction of self-defense.
[CITATION] Gowdy argued with the trial court and provided his version of events.
The trial court told Gowdy, “[Y]ou can’t bring a gun to a fistfight. * * * You can’t defend
yourself by shooting him if the only weapon that he has is his fists.” The court believed
that Gowdy did not face a threat of serious harm because the video showed that Gowdy
knocked Diol down twice and Diol “never got a punch in.” Gowdy replied that he did
not know if Diol had a weapon.
[CITATION] The trial court and Gowdy disputed what the video depicted until the
trial court suggested that they watch the video together “for the sole purpose as to
whether or not I’m going to give the self-defense instruction.” Gowdy’s counsel noted
that if the case went to trial, he would “make that request again for the record,” to
which the court replied: “Well, of course.” The video was played in court.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} When the court came back on the record, Gowdy had decided to plead
guilty. As part of the plea deal, the state agreed to reduce Gowdy’s charges to
aggravated assault with a three-year gun specification and recommended a four-year
aggregate sentence.
{¶13} The trial court began the plea colloquy. When the trial court addressed
Gowdy to ask if he was voluntarily entering the plea, Gowdy replied, “Yes, sir. I just
feel like we should have left it up to the jury to decide if it was self-defense or not, but
I understand.” The trial court cautioned, “If you feel like I’ve coerced you in this way,
then I won’t accept your plea and we’ll just have a jury trial.” Gowdy responded by
noting that the trial court was not going to give a self-defense instruction. The court
replied, “[H]e has a right to argue against that.”[CITATION] Gowdy and the trial court discussed
whether self-defense applied to Gowdy’s case.
{¶14} The trial court again explained that it would not accept the plea if Gowdy
felt like the court had threatened Gowdy or made it difficult for him to make a decision.
Gowdy responded:
that’s like just put me in a box. * * * there ain’t no way, you know what
I’m saying * * * I feel like the jury should decide if it was self-defense or
not. That’s just how I feel. But y’all are already ruling it out for the jury
not to even know.
{¶15} The trial court again told Gowdy that he could request a self-defense
instruction, though “it’s not guaranteed.”
[CITATION]
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} The trial court acknowledged that it could not hear any audio in the
video, which Gowdy argued demonstrated why the issue should have been left up to
the jury. The trial court replied:
THE COURT: All right. I’m going to leave it up to the jury if you want, if
that’s what you want.
THE DEFENDANT: Well, I just want to know will they be instructed on
self-defense?
THE COURT: No.
THE DEFENDANT: See, that’s what I'm saying. So I’m put in a box
again where I’m just going to be tried for if I shot him or not.
THE COURT: Right.
THE DEFENDANT: That’s what I’m saying. So I’m in a box, so that’s
why I’m taking the plea. I’ll take the plea.
{¶17} Later, Gowdy again protested not being able to argue self-defense. The
court replied, “[W]ell, you’re making it sound like we’re coercing you into it, rather
than assisting you in making a good decision.”
{¶18} Gowdy consulted with his attorney and the trial court completed the
plea colloquy, found Gowdy guilty, and imposed the agreed sentence of one year on
the aggravated-assault charge and three years on the gun specification to be served
consecutively to the assault charge for a total sentence of four years’ incarceration.
II. Law and Analysis
A. First Assignment of Error: Involuntary Plea
{¶19} In his first assignment of error, Gowdy argues that the trial court erred
in accepting his guilty plea because Gowdy did not knowingly, intelligently, and
OHIO FIRST DISTRICT COURT OF APPEALS
voluntarily enter the plea. Gowdy asserts that the trial court prematurely and
incorrectly ruled on whether it would provide a self-defense instruction before hearing
all the evidence at trial and that its ruling coerced him into pleading guilty.
. Self-defense law
{¶20} A person’s right to use force in self-defense is codified under R.C.
2901.05, which provides:
A person is allowed to act in self-defense, defense of another, or defense
of that person’s residence. If, at the trial of a person who is accused of
an offense that involved the person’s use of force against another, there
is evidence presented that tends to support that the accused person used
the force in self-defense * * * the prosecution must prove beyond a
reasonable doubt that the accused person did not use the force in self-
defense.
R.C. 2901.05(B)(1).
{¶21} A defendant is entitled to a self-defense jury instruction where there is
evidence tending to support that (1) the defendant was not at fault in creating the
situation leading to the use of force, (2) the defendant had a “bona fide belief” that the
defendant was in “imminent danger of death or great bodily harm,” from which he
could not escape without the use of force, and (3) the defendant did not violate a duty
to retreat. [CITATION], ¶ 23, quoting [CITATION], ¶ 14. A person has
no duty to retreat “if that person is in a place in which the person has a lawful right to
be.” R.C. 2901.09(B).
{¶22} The defendant has the burden of production in support of a self-defense
OHIO FIRST DISTRICT COURT OF APPEALS
claim. [CITATION] at ¶ 19. This burden is “de minimis and can be satisfied with the state’s
own evidence.” Id. at ¶ 1. The defendant meets this burden of production “if the
defendant’s evidence and any reasonable inferences about that evidence would allow
a rational trier of fact to find all the elements of a self-defense claim when viewed in
the light most favorable to the defendant.” [CITATION] at ¶ 25. Once the defendant
meets this minimal burden of production, the burden shifts to the state to disprove
self-defense beyond a reasonable doubt. R.C. 2901.05(B)(1).
{¶23} The trial court is in the best position to determine whether the
defendant has met the burden of production, and its decision granting or denying a
requested instruction is reviewed for an abuse of discretion. [CITATION] at ¶ 22. But
importantly, “a trial court must consider only the adequacy of the evidence
presented—not its persuasiveness.” Id. at ¶ 21. The [CITATION] court emphasized that
“[t]he question is not whether the evidence should be believed but whether the
evidence, if believed, could convince a trier of fact, beyond a reasonable doubt, that
the defendant was acting in self-defense.” (Emphasis in original.) Id. In [CITATION], the
court held that the trial court abused its discretion in denying a self-defense claim
where the trial court, believing that the defendant was “at fault” in starting the
altercation, “looked at the persuasiveness of the evidence presented rather than the
adequacy of the evidence presented. It improperly weighed the evidence and
considered whether it found [CITATION]’s evidence credible and believable.” Id. at ¶ 22.
{¶24} The trial court improperly enhanced Gowdy’s burden for receiving a
self-defense instruction. The trial court stated that Gowdy had to “prove something
first in order for me to give that instruction” and “I don’t think you’re going to be able
to meet your burden of proof on establishing the first cause of self-defense, that you
OHIO FIRST DISTRICT COURT OF APPEALS
[SEGMENT 5]
did not start the altercation.” Gowdy did not need to prove anything to receive the
instruction. Instead, he simply needed to submit evidence which, if believed, would
establish the elements of self-defense.
{¶25} And we agree with Gowdy that the trial court improperly weighed the
limited evidence available to it before stating that it would not provide a self-defense
instruction. The trial court stated that, in its view of the evidence, “[I]t looked like you
were waiting for the victim to come out, and you approached him first. He had food in
his hand, he had no intention on getting into a fight that day, but it looks as though
you started the fight.” The trial court weighed the limited evidence, made inferences
against Gowdy, and determined that Gowdy could not prove a self-defense claim.
Whether the surveillance video made Gowdy’s version of events not credible was
irrelevant to whether Gowdy had met his burden of production. The trial court
discounted Gowdy’s statements and used the surveillance video to effectively cross-
examine Gowdy about what happened during the altercation.
{¶26} Although the trial court misstated the self-defense law and prematurely
indicated it would not provide a self-defense instruction, that does not require reversal
in this case because Gowdy chose to plead guilty.
. Gowdy’s plea was voluntary
{¶27} When defendants waive their rights to a jury trial and plead guilty, they
also waive any challenge to the trial court’s pretrial rulings. [CITATION]; see [CITATION]. When defendants
====== End of Part ====== OHIO FIRST DISTRICT COURT OF APPEALS
plead guilty, they are limited on appeal to challenging only the validity of the plea itself.
Id.
{¶28} “Due process requires that a defendant’s plea be made knowingly,
intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.” [CITATION] Crim.R. 11(C)
governs the process under which a trial court accepts a guilty plea to a felony. Before
accepting a plea, the trial court must personally address the defendant to ensure that
the defendant is entering into the plea voluntarily and “engage the defendant in a
detailed colloquy before accepting his or her plea.” [CITATION]; Crim.R. 11(C)(2)(a)-
(c). A guilty plea induced by promises, threats, or coercion is involuntary and void even
if the trial court otherwise complies with Crim.R. 11(C)’s requirements. [CITATION]
{¶29} In [CITATION], this court held that a defendant’s guilty plea was not coerced
after the trial court denied the defendant’s motion for a continuance of his trial where
the trial court offered the defendant additional time to consider the plea and assured
the defendant that a trial was still available. [CITATION] The court noted that the
defendant’s statements during the plea colloquy that he felt “bombarded,” wished to
“rekindle the process anew,” and wanted a continuance represented the defendant’s
dissatisfaction with choosing between pleading guilty or “gambling on heftier
sanctions at trial, rather than coercion.” Id. at ¶ 8.
{¶30} Other courts have held that erroneous denials of pretrial motions do not
provide grounds to challenge a guilty plea as involuntary. See [CITATION]
OHIO FIRST DISTRICT COURT OF APPEALS
* Once again we emphasize that after the petitioner stated he felt he was being coerced
by virtue of the trial court’s ruling, the matter was ordered to trial. The petitioner then
stated that he understood the ruling, and desired to enter a plea of guilty. He further
stated that he knew and understood his rights.”); see also [CITATION] (holding that the trial court’s
erroneous denial of one of the defendant’s seven motions in limine did not establish
that the defendant’s jury waiver was involuntary). Gowdy cites no cases, and we have
been unable to locate any, in which an incorrect pretrial ruling rendered a guilty plea
that otherwise complied with Crim.R. 11(C) (or an equivalent criminal rule)
involuntary.
{¶31} The record shows that on two separate court dates, the trial court stated
that Gowdy would not receive a self-defense instruction if he went to trial. Most of the
trial court’s statements regarding the availability of a self-defense claim indicated that
the court’s rulings were preliminary—the trial court stated that Gowdy’s attorney
would still be able to argue for a self-defense instruction at trial. During the actual plea
colloquy, however, the trial court appears to have definitively ruled on Gowdy’s
request when it answered “no” to Gowdy’s renewed question of whether the court
would provide the instruction.
{¶32} While Gowdy argues that he was coerced into accepting a plea by the
trial court’s ruling on self-defense, the record does not support this contention.
Although Gowdy repeatedly noted his disagreement with the trial court’s ruling,
Gowdy expressly stated that he was entering the plea voluntarily. And each time
Gowdy protested about the self-defense instruction, the trial court stopped the
colloquy, asked Gowdy if he felt coerced to plead guilty, and assured Gowdy that he
OHIO FIRST DISTRICT COURT OF APPEALS
could still go to trial. Gowdy was also given time to consult with his attorney. Knowing
that he had the right to proceed to trial, Gowdy chose to plead guilty and accept a
reduced sentence rather than risk going to trial, being denied a self-defense
instruction, and being convicted on greater charges.
{¶33} “Defendants often face difficult, if not gut-wrenching, decisions
regarding whether to accept a plea deal. The challenge of reaching that decision,
however, does not automatically render it the product of coercion.” [CITATION] at ¶ 9. While Gowdy might have felt boxed
in by the trial court’s ruling, Gowdy’s decision to plead guilty was a voluntary choice
between his two options of going to trial and appealing or pleading guilty to reduced
charges. The trial court’s misstating the self-defense law does not render Gowdy’s plea
involuntary.
. Gowdy failed to argue that the trial court’s misstating his
potential sentence caused prejudice
{¶34} Gowdy points out that the trial court overstated his potential maximum
sentence. After Gowdy’s attorney stated that Gowdy wanted to go to trial, the trial
court stated, “You understand that you’re looking at 11 years on each count, total of 22
years, plus two gun specs; is that right? * * * Six years on the gun[] specs. So you’re
looking at 28 years.” Gowdy asserts that, had he been convicted on all counts and
specifications in the indictment, the trial court would have been required to merge
both counts one and two and the two gun specifications, rendering his maximum
sentence 14-to-19-and-one-half years.
{¶35} A defendant may be convicted for multiple offenses based on the same
conduct “if any one of the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were committed separately,
OHIO FIRST DISTRICT COURT OF APPEALS
or (3) the conduct shows that the offenses were committed with separate animus.”
[CITATION]; R.C. 2941.25(B).
{¶36} Counts one and two would not have merged because they charged
Gowdy with separate acts resulting in separate and identifiable harms: (1) striking Diol
with the handgun, and (2) shooting Diol with the handgun. See [CITATION] (stating
offenses of dissimilar import exists “if the harm that results from each offense is
separate and identifiable.”). Gowdy was therefore facing a potential maximum
sentence of 22 years on counts one and two.
{¶37} The indictment included a three-year firearm specification and a one-
year firearm specification, both attached to count one. Had Gowdy been convicted of
both specifications related to count one, the trial court could have sentenced him on
only one of the specifications. R.C. 2929.14(B)(1)(a) (“if an offender who is convicted
of or pleads guilty to a felony also is convicted of or pleads guilty to a specification of
the type described in section 2941.141, 2941.144, or 2941.145 of the Revised Code, the
court shall impose on the offender one of the following prison terms”). With the three-
year specification, Gowdy’s maximum sentence was 25 years, rather than 28 years as
stated by the trial court.
{¶38} But Gowdy has not argued that he was prejudiced by this error. See [CITATION] (“a defendant is
not entitled to have his plea vacated unless he demonstrates he was prejudiced by a
failure of the trial court to comply with the provisions of Crim.R. 11(C).”). Indeed,
Gowdy does not definitively argue that the trial court’s misstatement of the total
potential sentence affected his decision to enter a guilty plea. Instead, Gowdy states
that the trial court’s incorrect statements about his sentence “may have also
OHIO FIRST DISTRICT COURT OF APPEALS
improperly influenced his decision to enter a plea of guilty” and suggests, “perhaps his
decision would have been different.” These statements fail to argue prejudice and it is
not the role of this court to formulate a prejudice argument on Gowdy’s behalf. See
[SEGMENT 6]
[CITATION], ¶ 22 (10th Dist.).
{¶39} We overrule Gowdy’s first assignment of error.
B. Second Assignment of Error: Right to a Jury Trial
{¶40} In his second assignment of error, Gowdy argues that the trial court
denied him his right to a jury trial under the Sixth Amendment to the United States
Constitution and Article I, Section 5 of the Ohio Constitution. Gowdy asserts that he
had a constitutional right to have a jury determine whether he acted in self-defense.
Other than this assertion, Gowdy did not develop this argument.
{¶41} Courts presume that a written jury waiver is knowing, intelligent, and
voluntary. [CITATION], at ¶ 93, citing [CITATION]. In [CITATION], the Supreme
Court of Ohio held that a trial court’s erroneous denial of one of the defendant’s seven
motions in limine did not rebut the presumption that the defendant’s jury waiver was
voluntary. [CITATION] at ¶ 93.
{¶42} Gowdy signed a written jury waiver. As such, we presume the waiver
was knowing, intelligent, and voluntary. And as noted above, the trial court stopped
the plea colloquy multiple times to assure Gowdy that he could still proceed with a jury
trial. There is nothing in the record to show that Gowdy’s waiver of his right to a jury
trial was involuntary. We overrule Gowdy’s second assignment of error.
OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶43} For the foregoing reasons, we overrule the assignments of error and
affirm the trial court’s judgment.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-209
v. : (M.C. No. 2022CRX-052122)
[R.L.W.], : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on April 2, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: [R.L.W.], pro se.
APPEAL from the Franklin County Municipal Court
BOGGS, J.
{¶ 1} Defendant-appellant, R.L.W., appeals a judgment of the Franklin County
Municipal Court that denied his application to seal the record of the dismissal of a charge
against him for aggravated robbery. For the following reasons, we reverse that judgment
and remand for further proceedings.
{¶ 2} On November 18, 2022, R.L.W. filed applications to seal the records in
multiple municipal court cases pursuant to former R.C. 2953.52. The trial court granted all
but one application, which is the subject of this appeal. In the appealed case, R.L.W. sought
to seal records related to a 2016 charge of aggravated robbery, a felony of the first degree in
violation of R.C. 2911.01(A). The trial court dismissed the aggravated robbery charge less
than ten days after it was filed. R.L.W. was subsequently indicted in the United States
District Court for the Southern District of Ohio on charges arising out of the same No. 23AP-209
circumstances that gave rise to the aggravated robbery charge. R.L.W. was ultimately
convicted of federal offenses and sentenced to 15 years in prison.
{¶ 3} The trial court denied R.L.W.’s application to seal the record of the dismissed
charge in a judgment time stamped February 17, 2023, but not entered on the record until
February 21, 2023.1 The trial court stated that it denied R.L.W.’s application because the
“municipal court [was] not the appropriate venue for that case number.” (Feb. 17, 2023
Entry.)
{¶ 4} R.L.W. now appeals the February 17, 2023 judgment. Plaintiff-appellee, the
State of Ohio, initially argues that this court should dismiss R.L.W.’s appeal as untimely
pursuant to App.R. 4. The state contends that R.L.W. filed his notice of appeal well after
the 30-day window to appeal the February 17, 2023 judgment had closed. We disagree.
{¶ 5} “An appeal as of right shall be taken by filing a notice of appeal with the clerk
of the trial court within the time allowed by Rule 4.” App.R. 3(A). If an appellant fails to
meet the timing requirements of App.R. 4, then the court of appeals lacks jurisdiction to
hear the appeal. [CITATION], ¶ 17.
{¶ 6} Pursuant to App.R. 4(A)(1), “a party who wishes to appeal from an order that
is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of
that entry.” The timing requirement of App.R. 4(A)(1) is subject to App.R. 4(A)(3), which
states that, “[i]n a civil case, if the clerk has not completed service of notice of the judgment
within the three-day period prescribed in Civ.R. 58(B), the 30-day period[ ] referenced in
App.R. 4(A)(1) * * * begin[s] to run on the date when the clerk actually completes service.”
According to Civ.R. 58(B):
When the court signs a judgment, the court shall endorse
thereon a direction to the clerk to serve upon all parties not in
default for failure to appear notice of the judgment and its date
of entry upon the journal. Within three days of entering the
judgment upon the journal, the clerk shall serve the parties in
a manner prescribed by Civ.R. 5(B) and note the service in the
appearance docket. Upon serving the notice and notation of
the service in the appearance docket, the service is complete.
1 We will refer to this judgment as the February 17, 2023 judgment. Ideally, the time stamp on a judgment
should match the date a judgment is entered on the record. No. 23AP-209
{¶ 7} Construed together, App.R. 4(A)(1) and (A)(3) establish service of the notice
of judgment as the triggering event that starts the 30-day appeal period. Clermont Cty.
Transp. Improvement Dist. [CITATION], ¶ 6. If timely service is accomplished pursuant to Civ.R. 58(B), then the appeal period
begins to run on the date of judgment; but where such service is lacking, the appeal period
is tolled until the clerk completes service. [CITATION], ¶ 16; accord Gator Milford, L.L.C. at ¶ 7 (“Timeliness is defined as 30
days from the date of the final order or from the date that the clerk completes service if
service is not completed within three days of entering the judgment on the journal.”).
{¶ 8} Expungements are civil in nature. [CITATION], ¶ 25. Consequently, we apply App.R. 4(A)(3) and Civ.R. 58(B) to
determine whether R.L.W. filed a timely appeal. See [CITATION], ¶ 6 (2d Dist.) (noting the civil nature of expungement and applying
App.R. 4 and Civ.R. 58(B) to determine the timeliness of the appeal from a judgment
denying an application for expungement). The February 17, 2023 judgment does not
contain a Civ.R. 58(B) directive to the clerk, and no notation of service of the judgment
appears in the trial court’s journal. Because the clerk did not accomplish service as required
by Civ.R. 58(B), the period to appeal the February 17, 2023 judgment never began to run.
R.L.W.’s appeal, therefore, is timely.
{¶ 9} Although R.L.W. filed a timely notice of appeal, he failed to comply with the
Rules of Appellate Procedure when he filed his brief. Most problematically, R.L.W. does
not set forth any assignments of error as required in App.R. 16(A)(3). Assignments of error
are particularly critical to an appeal because courts of appeal decide each appeal “on its
merits on the assignments of error set forth in the briefs under App.R. 16.” App.R.
12(A)(1)(b). Courts of appeal have discretion to dismiss appeals that fail to set forth
assignments of error. [CITATION], ¶ 14. However, in the interest
of serving justice, courts of appeal may instead review the appealed judgment using the
appellant’s arguments. [CITATION], ¶ 14. We will do that in this case. No. 23AP-209
[SEGMENT 7]
{¶ 10} Here, R.L.W. argues that the trial court erred in concluding that it was not
the “appropriate venue” for his application to seal the dismissal of his aggravated robbery
charge. (Feb. 17, 2023 Entry.) We agree.
{¶ 11} The statutory law in effect at the time that R.L.W. applied to seal his
dismissal governs this case. See [CITATION] (“the statutory law in effect at the time of filing an application to seal criminal records
is controlling”). According to that law, “[a]ny person, * * * who is the defendant named in
a dismissed complaint, indictment, or information, may apply to the court for an order to
seal the person’s official records in the case.” Former R.C. 2953.52(A)(1), 2011 Ohio
Sub.S.B. 268. The outcome of this case depends on the interpretation of this statute, which
is a question of law. [CITATION]. We thus apply the de novo standard of
review. [CITATION].
{¶ 12} When interpreting a statute, a court’s objective is to ascertain and give effect
to legislative intent. [CITATION]. We primarily define legislative intent
from the plain language of a statute. [CITATION]. If the meaning of a
statute is plain, the court applies it as written and undertakes no further interpretation of
the statute. [CITATION]. “ ‘To determine the plain meaning of a statute,
a court relies on the definitions provided by the legislative body.’ ” [CITATION], quoting [CITATION].
{¶ 13} Because the trial court found that it was not the appropriate venue for
R.L.W.’s application, we focus on identifying the forum in which former R.C. 2953.52(A)(1)
required a defendant to file his expungement application. As we set forth above, former
2953.52(A)(1) stated, “Any person, * * * who is the defendant named in a dismissed
complaint, indictment, or information, may apply to the court for an order to seal the
person’s official records in the case.” As used in former R.C. 2953.52(A)(1), “court” meant
“the court in which * * * a dismissal of the complaint, indictment, or information in the case
is entered on the minutes or journal of the court.” Former R.C. 2953.51(C), 2019 Ohio
Am.Sub.S.B. 10. Thus, reading the definition of “court” in conjunction with former R.C.
2953.52(A)(1), we conclude that former R.C. 2953.52(A)(1) permitted a defendant named No. 23AP-209
in a dismissed complaint to apply to the court in which the dismissal of the complaint was
entered for an order sealing the records of the dismissed case.
{¶ 14} In this case, the parties do not dispute that the dismissal of the complaint
charging R.L.W. with aggravated burglary was entered in the trial court. Therefore, the trial
court was the appropriate venue for R.L.W.’s application to seal the records of the dismissal.
The trial court erred in finding otherwise and denying R.L.W.’s application on that basis.
{¶ 15} On appeal, the state asserts multiple other grounds for the denial of R.L.W.’s
expungement application that the trial court did not address. The state asserts that
R.L.W.’s expungement application should fail because: (1) criminal proceedings remain
pending against R.L.W., (2) sealing of the dismissal would result in a partial sealing of
R.L.W.’s criminal record, and (3) the state’s interests in maintaining the record outweigh
R.L.W.’s interest in sealing the record. Appellate courts, as courts of review, generally do
not rule on arguments not decided in the first instance by the trial court. [CITATION]. Consequently, we will leave the state’s additional arguments
for the trial court to sort out, if the state raises them on remand.
{¶ 16} For the foregoing reasons, we reverse the judgment of the Franklin County
Municipal Court, and we remand this matter for further proceedings consistent with the
law and this decision.
Judgment reversed;
cause remanded.
JAMISON and EDELSTEIN, JJ., concur.
[Cite as [CITATION].]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30660
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHAD JAY COBB COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2012-07-1887-A
DECISION AND JOURNAL ENTRY
Dated: March 13, 2024
CARR, Judge.
{¶1} Defendant-Appellant Chad Jay Cobb appeals, pro se, the judgment of the Summit
County Court of Common Pleas. This Court reverses and remands the matter for proceedings
consistent with this decision.
I.
{¶2} Cobb pleaded guilty in 2013 to several serious charges, including aggravated
murder, kidnapping, aggravated robbery, and felonious assault, among others. Cobb was
sentenced to life without the possibility of parole. Cobb appealed, raising three assignments of
error for this Court’s review. See [CITATION]. Therein, Cobb argued that the trial court lacked subject matter jurisdiction over the aggravated
murder charge, he received ineffective assistance of counsel when his attorney failed to attend a
motion to dismiss hearing in municipal court, and that the trial court violated his right to counsel 2
by permitting his original counsel to withdraw. See id. at ¶ 4, 11, 14. This Court overruled his
assignments of error. Id. at ¶ 19.
{¶3} In December 2022, Cobb filed a pro se motion to withdraw his guilty plea. Cobb
argued that he was denied the effective assistance of counsel due to counsel’s failure to investigate
and/or a failure of counsel to communicate certain information to Cobb. In addition, Cobb
maintained that he was denied the effective assistance of counsel as trial counsel encouraged Cobb
to plead while Cobb was being threatened that he would lose parental rights to his children if he
did not plead. Thus, Cobb also asserted that his plea was coerced. Cobb further argued that [CITATION]
did not bar a consideration of the merits of his arguments.
{¶4} The State opposed the motion, asserting that [CITATION]
deprived the trial court of jurisdiction over Cobb’s motion, and, if it did not, Cobb’s arguments
failed on the merits. Cobb filed a reply brief.
{¶5} The trial court denied Cobb’s motion, concluding that it lacked jurisdiction based
upon the holding of [CITATION] and this Court’s precedent interpreting that
case and its progeny.
{¶6} Cobb has appealed, raising three assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S MOTION TO WITHDRAW GUILTY PLEA BASED ON
[CITATION] AND LACK OF JURISDICTION, IN VIOLATION OF DUE
PROCESS AS ESTABLISHED UNDER THE FOURTEENTH AMENDMENT
OF THE UNITED [STATES] CONSTITUTION, AND ARTICLE I, [SECTION]
10 OF THE OHIO CONSTITUTION, WHEN THE ENTIRE MOTION WAS 3
BASED ON FACTS THAT WERE NEWLY DISCOVERED AND/OR
WITHHELD FROM APPELLANT.
{¶7} Cobb asserts in his first assignment of error that the trial court erred in concluding
that it lacked jurisdiction to consider Cobb’s motion to withdraw his guilty plea based upon the
holding in [CITATION]. Under the facts of this case, and in light of recent
Supreme Court precedent, we agree.
{¶8} [CITATION] involved a writ of prohibition filed after a trial
court granted a defendant’s motion to withdraw a guilty plea after the defendant’s conviction had
been affirmed on appeal. See [CITATION]. In
examining whether the trial court possessed jurisdiction to rule on the defendant’s motion, the
Supreme Court stated that “the trial court’s granting of the motion to withdraw the guilty plea and
the order to proceed with a new trial were inconsistent with the judgment of the Court of Appeals
affirming the trial court’s conviction premised upon the guilty plea. The judgment of the reviewing
court is controlling upon the lower court as to all matters within the compass of the judgment.” Id.
at 97. The Court concluded that “the trial court lost its jurisdiction when the appeal was taken,
and, absent a remand, it did not regain jurisdiction subsequent to the Court of Appeals’ decision.”
Id. The Supreme Court went on to determine that “Crim.R. 32.1 does not vest jurisdiction in the
trial court to maintain and determine a motion to withdraw the guilty plea subsequent to an appeal
[SEGMENT 8]
and an affirmance by the appellate court. While Crim.R. 32.1 apparently enlarges the power of
the trial court over its judgments without respect to the running of the court term, it does not confer
upon the trial court the power to vacate a judgment which has been affirmed by the appellate court,
for this action would affect the decision of the reviewing court, which is not within the power of
the trial court to do.” Id. at 97-98. 4
{¶9} Since that time, this Court has frequently applied the holding in [CITATION] to matters involving motions to withdraw pleas when the conviction has been affirmed on appeal. See, e.g., [CITATION]; see also [CITATION] (Carr, J., concurring in judgment only) (noting that this Court has applied [CITATION] in a variety of scenarios).
{¶10} The Supreme Court subsequently discussed [CITATION] in [CITATION] involved a motion for a new trial based upon newly discovered evidence in a death penalty case following affirmance of the case on direct appeal and a not a motion to withdraw a guilty plea. See [CITATION]. Notwithstanding, the Supreme Court spoke broadly and stated that “the holding in [CITATION] does not bar the trial court’s jurisdiction over posttrial motions permitted by the Ohio Rules of Criminal Procedure.” [CITATION]. With respect to the facts of the case, the [CITATION] Court concluded that “a trial court retains jurisdiction to decide a motion for a new trial based on newly discovered evidence when the specific issue has not been decided upon direct appeal.” Id.
{¶11} While this Court did conclude that the Supreme Court’s opinion in [CITATION] did not alter this Court’s interpretation of [CITATION] with respect to Crim.R. 32.1 motions, the analysis therein received no majority. See [CITATION]. The lead opinion in [CITATION] ultimately determined that [CITATION] did not apply to Crim.R. 32.1 motions as Crim.R. 32.1 motions were not posttrial motions:
At first glance, [CITATION] may appear inconsistent with [CITATION]’s “does not bar ... posttrial motions” language because a defendant may move to withdraw his plea even after he has been convicted. Crim. R. 32.1 (“[T]o correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”). In [CITATION], however, the Supreme Court explained that it was only modifying [CITATION] 5
Special Prosecutors to the extent the case had been applied to “posttrial” motions.
A motion to withdraw a guilty plea does not follow a trial and, therefore, is not a
“posttrial” motion.
[CITATION] at ¶ 10.
{¶12} Years later, in [CITATION], the Supreme Court cited to both [CITATION] and [CITATION] in considering whether
a trial court’s alteration of a sentencing entry was a clerical correction. See [CITATION] at
¶ 3-6, 11. The Supreme Court reaffirmed the notion that, “[g]enerally, a trial court loses
jurisdiction to modify its judgment once that judgment has been affirmed on appeal.” Id. at ¶ 11,
citing [CITATION]. However, the Supreme Court also
stated that “[r]elief from final judgments in criminal cases is confined to the procedures authorized
by statute or rule.” [CITATION] at ¶ 11, citing [CITATION]. A footnote to that sentence specifically listed several rules, including Crim.R. 32.1, see [CITATION] at ¶ 11, fn. 3, and a parenthetical accompanying the citation to [CITATION] states that
“[CITATION] does not bar the trial court’s jurisdiction over posttrial motions
permitted by the Ohio Rules of Criminal Procedure[.]” [CITATION] at ¶ 11, quoting [CITATION]
at ¶ 37.
{¶13} While this Court has continued to apply [CITATION], see, e.g.
[CITATION], we have not yet expressly considered how [CITATION]
might alter how [CITATION] applies. Other districts have, however. See [CITATION].
{¶14} In [CITATION], the 10th District analyzed both [CITATION] and [CITATION] and
concluded that, taken together, “[CITATION] can no longer be construed as 6
divesting a trial court of its continuing jurisdiction over post-sentence motions that are permitted
by the Ohio Rules of Criminal Procedure or Ohio law.” [CITATION] at ¶ 26. The Tenth District then
held “that [CITATION] no longer applies to post-sentence motions to
withdraw a guilty or no contest plea filed pursuant to Crim.R. 32.1.” [CITATION] at ¶ 26.
{¶15} Irrespective of whether this Court agrees with the extent of the Tenth District’s
holding in [CITATION], this Court does agree that when [CITATION] is considered
along with more recent precedent, it must be concluded that the holding of [CITATION] has been clarified. We determine that, under the facts of this case, the trial court did
not lack jurisdiction to consider Cobb’s motion to withdraw his guilty plea. In so concluding, we
are mindful that the issues raised in Cobb’s motion to withdraw his guilty plea were not decided
in his direct appeal. See [CITATION]. Accordingly, the trial court erred in concluding that
[CITATION] deprived it of jurisdiction to consider Cobb’s motion in light of
the subsequent case law from the Ohio Supreme Court discussed above.
{¶16} Cobb’s first assignment of error is sustained, and the matter is remanded to the trial
court to consider Cobb’s motion to withdraw his guilty plea.
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL IN VIOLATION OF THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,
WHEN APPELLATE COUNSEL FAILED TO ADVISE HIS CLIENT THAT BY
FILING A DIRECT APPEAL, APPELLANT WOULD BE BARRED FROM
FILING A MOTION TO WITHDRAW HIS GUILTY PLEA IN THE EVENT
THAT NEWLY DISCOVERED EVIDENCE BECAME AVAILABLE.
ASSIGNMENT OF ERROR III
APPELLANT’S PLEA[] OF GUILTY WAS NOT MADE KNOWINGLY AND
INTELLIGENTLY, WHEN THE TRIAL COURT FAILED [SIC] INFORM HIM 7
OF THE CONSEQUENCES OF FILING A DIRECT APPEAL FOLLOWING
THAT GUILTY PLEA, IN VIOLATION OF OHIO CRIMINAL RULE 11, THE
DUE PROCESS CLAUSE OF THE OHIO CONSTITUTION AND THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
{¶17} Cobb’s arguments in his second and third assignments of error raise issues that were
not raised below and are outside the scope of the entry from which he appealed. See [CITATION]. In other words, the trial court did not consider or decide the issues in these
assignments of error in the judgment entry on appeal to this Court. Cobb’s second and third
assignments of error are overruled on that basis.
III.
{¶18} Cobb’s second and third assignments of error raise issues outside the scope of the
trial court’s judgment entry and this appeal and are overruled on that basis. Cobb’s first assignment
of error is sustained. The judgment of the Summit County Court of Common Pleas is reversed,
and the matter is remanded for the trial court to consider Cobb’s motion to withdraw his guilty
plea in the first instance.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 8
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
SUTTON, P. J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
CHAD JAY COBB, pro se, Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant
Prosecuting Attorney, for Appellee. It appears that the part of the court ruling intended for processing is missing. Kindly provide the specific part of the court ruling text you would like me to process, and I'll proceed with the task as requested.
[SEGMENT 9]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-244
v. : (C.P.C. No. 02CR-4820)
Richard Worrell, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 8, 2024
On brief: [Janet A. Grubb, First Assistant Prosecuting
Attorney], and Seth L. Gilbert for appellee. Argued: Seth L.
Gilbert.
On brief: The Law Office of Eric J. Allen, Ltd., and Eric J.
Allen for appellant.
APPEAL from the Franklin County Court of Common Pleas
EDELSTEIN, J.
{¶ 1} Defendant-appellant, Richard Worrell, appeals from the March 20, 2023
judgment of the Franklin County Court of Common Pleas denying the relief sought in his
“Motion To Exclude [Mr. Worrell] From Registering As A Violent Offender Pursuant To
R.C. 2903.41-2903.43 (Sierah’s Law).” (Mar. 20, 2023 Decision and Entry.) Specifically,
Mr. Worrell contended he should be excluded from the provisions of 2018 Am.Sub.S.B. No.
231 (“Sierah’s Law”) requiring him to register with the violent offender database annually
for ten years upon his release from prison because he was convicted of a qualifying offense
before the law took effect.
{¶ 2} Although Sierah’s Law clearly contemplates its application to defendants
classified as “violent offenders” who, like Mr. Worrell, are serving a term of confinement on No. 23AP-244
its effective date, Mr. Worrell argued, in contravention of relevant Ohio Supreme Court
precedent, that the law is unconstitutionally retroactive and violates his equal protection
rights. The trial court rejected those arguments. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL OVERVIEW
{¶ 3} In 2002, Mr. Worrell was indicted with three counts of rape, one count of
kidnapping, one count of abduction, and one count of felonious assault. Following a jury
trial, Mr. Worrell was convicted of all six counts in 2004.
{¶ 4} In April 2004, the trial court adjudicated Mr. Worrell a sexual predator and
imposed a total prison sentence of 19 years. Specifically, the trial court merged the
felonious assault and abduction charges into the kidnapping count, sentenced Mr. Worrell
to five years in prison for each of the three rape counts, imposed a four-year prison term for
the kidnapping offense, and ordered the prison sentences be served consecutively.
{¶ 5} This court affirmed Mr. Worrell’s convictions, sentence, and sexual-predator
classification in [CITATION]. However, on
May 3, 2006, the Supreme Court reversed the judgment of this court, in part, and remanded
to the trial court for resentencing consistent with its holding in [CITATION] regarding the imposition of nonminimum consecutive prison
sentences. See [CITATION]. On remand, the trial court conducted a resentencing hearing and
reimposed the same 19-year prison sentence. We affirmed that judgment on May 3, 2007.
[CITATION].
{¶ 6} In anticipation of his scheduled release from prison on December 21, 2022,
Mr. Worrell, through counsel, filed a motion on December 15, 2022 asking the trial court
to exclude him from the violent offender database registry requirements created by Sierah’s
Law and codified in sections 2903.41 through 2903.44 of the Ohio Revised Code.
{¶ 7} Effective March 20, 2019, Sierah’s Law created a violent offender database
and presumptively requires “violent offenders”—as defined in R.C. 2903.41(A)—to enroll
in that database for a period of ten years. R.C. 2903.41(A); R.C. 2903.42(A)(1). As
discussed more fully below, the General Assembly expressly provided for retroactive
application of Sierah’s Law by defining “violent offender” to include, in relevant part, any No. 23AP-244
person who was serving a term of confinement for a kidnapping offense on March 20, 2019,
when the law took effect. See R.C. 2903.41(A)(2); R.C. 2903.41(A)(1)(a).
{¶ 8} It is undisputed that Mr. Worrell was convicted of a kidnapping offense in the
case below and serving the 19-year term of confinement imposed in that case on March 20,
2019. Significantly, Mr. Worrell has not challenged the applicability of R.C. 2903.41(A)(2)
by arguing that he was not “confined * * * for the [kidnapping] offense” on March 20, 2019.1
Nor did he attempt to rebut the presumption that he would be required to enroll in the
violent offender database in the trial court by arguing that he was not the principal offender
in the commission of the kidnapping, as provided for in R.C. 2903.42(A)(2). And, indeed,
given the facts of this case, it does not appear such argument would be viable.
{¶ 9} Instead, Mr. Worrell objected to the application of Sierah’s Law in the trial
court by arguing that R.C. 2903.41(A)(2) is unconstitutionally retroactive under Article II,
Section 28 of the Ohio Constitution and violates the Equal Protection Clause of the United
States Constitution.
{¶ 10} On March 20, 2023, the trial court issued an entry rejecting those arguments
and denying Mr. Worrell’s motion for exclusion. Mr. Worrell timely appealed from that
judgment and asserts the following two assignments of error for our review:
[I.] THE TRIAL COURT ERRED [ABUSED ITS DISCRETION]
IN DENYING [OVERRULING] [MR. WORRELL’S]
MOTION[.]2
[II.] THE TRIAL COURT ERRED IN FINDING R.C. 29[0]3.
-[R.C.] 29[0]3.43 CONSTITUTIONAL[.]
1 Mr. Worrell was released from prison on December 21, 2022. See “Richard Worrell,” Offender Details, OHIO
DEPT. OF REHAB. & CORR., https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A468206
(accessed Feb. 7, 2024). This means that only 3 years and 9 months of his 19-year total prison sentence
remained when Sierah’s Law took effect on March 20, 2019. Notably, only 4 of those 19 years were imposed
for the kidnapping offense; the other 15 years of Mr. Worrell’s prison sentence pertained to the 3 counts of
rape (an offense not specified in R.C. 2903.41(A)(1)(a)’s “violent offender” definition). But Mr. Worrell did
not contend in the trial court—and does not argue on appeal—that R.C. 2903.41(A)(2) does not apply because
he was confined on one of the three rape offenses, not the kidnapping offense, when Sierah’s Law took effect.
We generally decline to make legal arguments for an appellant. See [CITATION], ¶ 22, citing [CITATION]. And
we do not address new arguments presented for the first time on appeal. See, e.g., [CITATION], ¶ 94. Thus, for purposes of this case, we must presume that Mr. Worrell was
confined for the kidnapping offense on March 20, 2019.
2 Mr. Worrell inconsistently states his first assignment of error in his merit brief. (Compare Brief of Appellant
at 1 with Brief of Appellant at 3.)
====== End of Part ====== No. 23AP-244
II. ANALYSIS
A. First Assignment of Error
{¶ 11} In his first assignment of error, Mr. Worrell takes issue with the trial court’s
contemplation of whether it had jurisdiction to entertain Mr. Worrell’s constitutionality
challenge to Sierah’s Law. (See Decision and Entry at 2, citing [CITATION].) He claims the trial court failed to rule on the merits of his
motion because it found that it lacked jurisdiction to hear the matter. (See Brief of Appellant
at 6.) But, on review, we find that contention is not substantiated by the record.
{¶ 12} In its decision, the trial court clearly entertained and ruled on the merits of
the two constitutionality challenges Mr. Worrell raised in his motion for exclusion from the
database registration requirements. (Decision and Entry at 2-4.) Thus, Mr. Worrell’s first
assignment of error fails to raise any cognizable error at all. It is axiomatic that we cannot
offer Mr. Worrell any relief on appeal from an error that did not occur.
{¶ 13} In its merit brief, the state argues the trial court lacked jurisdiction to
consider Mr. Worrell’s constitutionality challenge to Sierah’s Law since the law took effect
after Mr. Worrell had already been convicted and sentenced for the kidnapping offense.
(See Brief of Appellee at 10-16.) True, a “trial court’s jurisdiction over a criminal matter is
limited once the proceedings are complete.” [CITATION]. And, we recognize that Sierah’s Law confers limited continuing
jurisdiction upon common pleas courts over defendants who, like Mr. Worrell, are
classified as violent offenders while in prison pursuant to R.C. 2903.41(A)(2).
R.C. 2903.42(A)(2). Compare [CITATION], and [CITATION], with [CITATION] (Luper Schuster, J.,
concurring separately). But, the state did not file a cross-appeal in this case. Given such
procedural posture, we decline to define the bounds of such jurisdiction today.
{¶ 14} Mr. Worrell’s first assignment of error is overruled.
[SEGMENT 10]
B. Second Assignment of Error
{¶ 15} In his second assignment of error, Mr. Worrell argues the trial court erred in
finding Sierah’s Law constitutional. Whether a statute is constitutional presents a question
of law that we review de novo. Portage Cty. Educators Assn. for Dev. Disabilities-Unit B No. 23AP-244
v. State Emp. Relations Bd., [CITATION], citing [CITATION].
{¶ 16} In the trial court, Mr. Worrell argued that requiring him to enroll in the
violent offender database would violate the Retroactivity Clause contained in Article II,
Section 28 of the Ohio Constitution3 and the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.4
{¶ 17} At the time Mr. Worrell filed his motion in the lower court, the Ohio Supreme
Court had already held in [CITATION] and [CITATION]
(plurality opinion) that applying Sierah’s Law to violent offenders who committed their
offenses before the effective date of the law did not violate the prohibition on retroactive
statutes set forth in Article II, Section 28 of the Ohio Constitution. Inferior courts do not
have the authority to review, ignore, or overturn decisions of the Supreme Court that are,
in fact, binding upon them as precedent. See, e.g., [CITATION]. Although the defendants in [CITATION] and [CITATION] were both sentenced after Sierah’s Law took
effect—while Mr. Worrell, in contrast, was sentenced long before—Mr. Worrell does not
argue on appeal that the circumstances of his case would change the thrust of those
decisions. See, e.g., [CITATION].
{¶ 18} In fact, Mr. Worrell does not maintain in his appeal to this court that Sierah’s
Law, as applied to him, violates the Retroactivity Clause of the Ohio Constitution.5
3 Mr. Worrell did not make any claims in the trial court based on the Ex Post Facto Clause of Article I, Section
10 of the United States Constitution.
4 Although Article I, Section 2 of the Ohio Constitution contains a similar guarantee, Mr. Worrell did not
separately argue in the trial court—nor does he separately contend on appeal—that application of Sierah’s Law
violates the equal protection guarantee of the state constitution.
5 We note that because Mr. Worrell had already been sentenced to prison for kidnapping and was incarcerated
when Sierah’s Law took effect, his status as a violent offender falls within the realm of R.C. 2903.41(A)(2). As
such, the law required a prison official (or the official’s designee) to notify Mr. Worrell—in writing and within
a reasonable period of time before his December 21, 2022 release from prison—of the violent offender
database enrollment presumption established under R.C. 2903.42; his right to file a motion to rebut the
presumption; the procedure and criteria for rebutting the presumption; the effect of a rebuttal; and the post-
rebuttal hearing procedures and possible outcome. R.C. 2903.42(A)(1)(b). Mr. Worrell has not claimed that No. 23AP-244
(Compare Mot. at 4-8.) Instead, the focus of Mr. Worrell’s second assignment of error is
his contention that Sierah’s Law violates the Equal Protection Clause of the Fourteenth
Amendment because it does not equally apply to persons convicted of qualifying offenses
before Sierah’s Law took effect on March 20, 2019. Specifically, Mr. Worrell notes that the
law distinguishes between those who were imprisoned when the law became effective and
those who were not without any rational basis for doing so.6 (See Brief of Appellant at 7-
14.) For this reason, he maintains that the law is unconstitutional.
{¶ 19} The Fourteenth Amendment of the United States Constitution provides that
“[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the
laws.” “The Equal Protection Clause prevents states from treating people differently under
its laws on an arbitrary basis.” [CITATION], citing [CITATION]. “ ‘Whether any such differing treatment is to be deemed arbitrary depends on whether or
not it reflects an appropriate differentiating classification among those affected; the clause
has never been thought to require equal treatment of all persons despite differing
circumstances.’ ” Id., quoting [CITATION]. Rather, it “prohibits
treating similar groups differently based on criteria that are unrelated to the purpose of the
law.” [CITATION].
{¶ 20} When evaluating an equal protection claim, we must first determine the
proper standard of review. “When legislation infringes upon a fundamental constitutional
right or the rights of a suspect class, strict scrutiny applies.” [CITATION]. But when neither a fundamental right nor a
suspect class is implicated, we apply a rational-basis test. Id.
{¶ 21} There is no doubt that the rational-basis test applies in this case. Indeed, Mr.
Worrell concedes as much. (Brief of Appellant at 12-14.) This is because the statutory
the Ohio Department of Rehabilitation and Correction failed to comply in any respect with the notification
requirements mandated under R.C. 2903.42(A)(1)(b).
6 In his brief, Mr. Worrell actually uses the enactment date—not effective date—of Sierah’s Law to set the
parameters of the different classes. (See Brief of Appellant at 8-9.) Sierah’s Law was enacted on December 19,
2018 but did not take effect until March 20, 2019. See 2018 Am.Sub.S.B. No. 231. Nothing in the controlling
statutory provisions suggests the date of enactment has any bearing on the applicability of the law. See
R.C. 2903.41 through 2903.44. Although we have no obligation to do so, we presume Mr. Worrell meant to
delineate classes in terms of the law’s effective date. No. 23AP-244
classification Mr. Worrell identifies in R.C. 2903.41(A)—the date on which a person is
convicted of or serving a term of confinement for a qualifying offense—does not concern
either a suspect class or a fundamental right. See, e.g., [CITATION] (finding that sex
offenders were not within a suspect class and that the sex offender registration scheme did
not involve a fundamental right7); [CITATION].9 (applying a rational basis-test to the arson offender registry in R.C. 2909.15).
{¶ 22} “Under the rational-basis standard, a state has no obligation to produce
evidence to sustain the rationality of a statutory classification.” [CITATION], citing [CITATION].
“[S]tatutes are presumed to be constitutional and * * * courts have a duty to liberally
construe statutes in order to save them from constitutional infirmities.” [CITATION], citing
[CITATION]. Furthermore, “[t]he party
challenging the constitutionality of a statute ‘bears the burden to negate every conceivable
basis that might support the legislation.’ ” [CITATION], quoting [CITATION].
{¶ 23} “In conducting a rational-basis analysis, we will uphold the statute ‘if it is
rationally related to a legitimate governmental purpose.’ ” [CITATION], quoting [CITATION]. While a legislature need not “justify or
even state its reasons for making a particular classification,” the rational-basis test requires
a rational relationship between the classification and the governmental interest, or
reasonable grounds to draw the distinction. [CITATION], citing [CITATION]. Thus, “ ‘a
statute will not be invalidated if it is grounded on a reasonable justification, even if its
classifications are not precise.’ ” [CITATION], quoting [CITATION].
7 Later amendments to the sex offender registration statute were held punitive and improperly retroactive.
See [CITATION] (discussing Ohio’s Adam Walsh Act, enacted in 2007); [CITATION] (holding the new registration, verification, and
notification requirements established by the Adam Walsh Act had become so punitive that its retroactive
application was unconstitutional). No. 23AP-244
{¶ 24} Mr. Worrell correctly points out that Sierah’s Law does not apply to the class
of individuals who were convicted of offenses that qualify for violent-offender classification
under R.C. 2903.41(A)(1) before March 20, 2019 but were not serving any term of
confinement for such offenses on March 20, 2019. He contends there is no rational basis
for excluding such persons from the violent offender database enrollment and registry
requirements that Sierah’s Law imposes. (Brief of Appellant at 13.) We disagree.
{¶ 25} In [CITATION], the Supreme Court found that “[b]y establishing a violent-
offender database that is accessible only by law enforcement and not by the broader
community, Sierah’s Law evinces the public-safety purpose to collect information about
violent offenders and facilitate its being shared with investigative authorities at the federal,
state, and local levels.” [CITATION] at ¶ 32. The legitimate state interest of the violent
offender registry is to provide a tool to law enforcement and protect the public from harm,
and it serves that purpose even though it does not include every single person who has ever
been convicted for an offense that would qualify them for violent-offender classification
under R.C. 2903.41(A)(1).
{¶ 26} Mr. Worrell’s argument—that “[t]here can be no rational basis [to permit an
entire class of convicted criminals to avoid registering with the violent offender database]
when the alleged purpose is to have this list of dangerous people to aid law enforcement”—
is myopic for two key reasons. (See Brief of Appellant at 13.) First, he ignores that a violent
offender’s registry duties generally end after ten years. See R.C. 2903.42(A)(1). In other
words, the legislature did not intend to create a comprehensive list of all “dangerous
people,” as Mr. Worrell suggests. Second, Mr. Worrell fails to address the notice-based
rationale suggested by the state and accepted by the trial court. (See Brief of Appellee at
20-23; Decision and Entry at 4.) Importantly, a person classified as a “violent offender” by
R.C. 2903.41(A) has no obligation to enroll in the violent offender database unless they are
appropriately notified in accordance with R.C. 2903.42(A)(1). We thus agree with the trial
court’s assessment that it is rational to apply Sierah’s Law only to those offenders situated
in positions—i.e., before a sentencing court or while they are serving a term of
confinement—where it is possible to ensure and verify that the statutorily required notice
is received. (See Decision and Entry at 4.) Indeed, the state has a legitimate governmental
interest in enacting laws that take into account the due process rights of its citizens. No. 23AP-244
[SEGMENT 11]
{¶ 27} For these reasons, we find the violent offender database enrollment scheme
established by Sierah’s Law is rational and advances the legitimate state interest of
protecting the public and safeguarding the notice requirements of the statute and due
process. Accordingly, Mr. Worrell’s equal protection claim lacks merit.
{¶ 28} In light of the foregoing, we conclude the trial court did not err in denying
Mr. Worrell’s motion for exclusion from the violent offender database registry
requirements imposed upon him by Sierah’s Law. As such, his second assignment of error
is overruled.
III. CONCLUSION
{¶ 29} Having overruled Mr. Worrell’s two assignments of error, we affirm the
March 20, 2023 judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and BOGGS, JJ., concur. Sure, please provide the part of the court ruling you would like processed, and I'll handle the court ruling citations accordingly.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[CITE AS [CITATION].]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-23-1300
Appellee Trial Court No. CR0199306193
v.
Ismael Vasquez DECISION AND JUDGMENT
Appellant Decided: August 2, 2024
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Timothy F. Sweeney, for appellant.
*****
SULEK, P.J.
{¶ 1} Appellant Ismael Vasquez appeals the judgment of the Lucas County Court
of Common Pleas denying his Crim.R. 32.1 post-sentence motion to withdraw his guilty
plea. For the following reasons, the trial court’s judgment is reversed.
I. Factual Background and Procedural History
{¶ 2} On August 4, 1992, V.H. was found having been beaten to death. Vasquez
was indicted in relation to the murder. On January 12, 1994, he entered a plea of guilty
pursuant to [CITATION] to the lesser offense of murder in violation of R.C. 2903.02 and was sentenced to 15 years to life in prison. Vasquez never appealed his
conviction.
{¶ 3} Nearly 30 years later, on February 14, 2023, Vasquez filed a Crim.R. 32.1
motion to withdraw his guilty plea, asserting that he received newly discovered
exculpatory evidence that the State unlawfully withheld from him. The State opposed
Vasquez’s motion, arguing that the trial court lacked jurisdiction to consider it.
{¶ 4} On November 20, 2023, the trial court entered its judgment denying
Vasquez’s motion to withdraw his guilty plea. The court determined that it had no
jurisdiction to hear a Crim.R. 32.1 motion to withdraw a guilty plea after the time for an
appeal from the conviction had expired.[CITATION]
II. Assignment of Error
{¶ 5} Vasquez timely appealed the trial court’s November 20, 2023 judgment,
asserting one assignment of error for review:
. The trial court committed reversible error and misapplied
controlling law, including from the Ohio Supreme Court and the Sixth
Appellate District, in ruling that it did not have jurisdiction to hear and
determine, and in thus denying, Appellant’s well-supported and timely
motion under Ohio Crim. R. 32.1 to withdraw his January 1994 Alford plea
to an August 1992 murder offense, allegedly committed when Appellant
[CITATION]
In its decision, the trial court found that Vasquez had attempted to file a delayed appeal,
which was denied. Vasquez asserts, and the State concedes, that no such delayed appeal
was attempted.
2. was 16 years old, in circumstances where the State’s recently-revealed
suppression of numerous exculpatory materials in violation of its duties
under [CITATION] and Crim.R. 16 resulted in a plea that was not
made knowingly, intelligently, and voluntarily and in a miscarriage of
justice.
III. Analysis
{¶ 6} In his assignment of error, Vasquez argues that the trial court erred in
denying for lack of jurisdiction his Crim.R. 32.1 post-sentence motion to withdraw his
guilty plea. Crim.R. 32.1 provides, “A motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea.”
{¶ 7} Ordinarily, an appellate court reviews the denial of a post-sentence motion
to withdraw a guilty plea for an abuse of discretion. [CITATION], ¶
21 (6th Dist.). Where the trial court decides that it lacks jurisdiction to consider the
motion, however, that decision is reviewed de novo. [CITATION], ¶ 14
(10th Dist.) (“[A]n appellate court reviews questions of law, including whether a trial
court has subject-matter jurisdiction to consider a motion to withdraw a guilty plea, under
a de novo standard.”).
{¶ 8} The issue presented in this case is whether the trial court retains jurisdiction
to entertain a post-sentence motion to withdraw a guilty plea where the time for filing an
appeal from the conviction has expired and no appeal has been taken.
3. {¶ 9} As a starting point, “Crim.R. 32.1 does not provide a time limit for moving
to withdraw after a sentence is imposed.” [CITATION], ¶ 15. In
[CITATION], however, the Ohio Supreme Court curtailed the ability of a defendant to
file a post-sentence motion to withdraw a guilty plea:
Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and
determine a motion to withdraw the guilty plea subsequent to an appeal and
an affirmance by the appellate court. While Crim.R. 32.1 apparently
enlarges the power of the trial court over its judgments without respect to
the running of the court term, it does not confer upon the trial court the
power to vacate a judgment which has been affirmed by the appellate court,
for this action would affect the decision of the reviewing court, which is not
within the power of the trial court to do.
{¶ 10} Recently, the rule in [CITATION] has been called into question by
[CITATION], ¶ 11. In [CITATION], the Ohio Supreme Court
recognized that a “trial court’s jurisdiction over a criminal matter is limited once the
proceedings are complete. Generally, a trial court loses jurisdiction to modify its
judgment once that judgment has been affirmed on appeal.” Id. It further commented
that “[r]elief from judgments in criminal cases is confined to the procedures authorized
by statute or rule,” specifically listing Crim.R. 32.1, and “[o]utside of those procedures,
there is no statute or criminal rule permitting a trial court to sua sponte substantively
change a defendant’s sentence after that sentence has been affirmed on direct appeal.” Id.
4.
====== End of the part of the Court Ruling ====== Some courts have read Janas to mean that “Special Prosecutors can no longer be
construed as divesting a trial court of its continuing jurisdiction over post-sentence
motions that are permitted by the Ohio Rules of Criminal Procedure or Ohio law.” [CITATION]; see also [CITATION].
{¶ 11} Vasquez asks this court to join the Tenth, Eighth, and Ninth Districts in no
longer enforcing the rule in Special Prosecutors. Upon review, that issue does not need
to be decided in this case. The rule in Special Prosecutors applies where a conviction has
been affirmed on appeal because a lower court cannot take an action that affects the
decision of a reviewing court. But here, no appeal was taken from Vasquez’s conviction.
Thus, Special Prosecutors is not implicated, no time limit exists for filing a Crim.R. 32.1
post-sentence motion to withdraw a guilty plea, and the trial court retains jurisdiction to
consider Vasquez’s motion.
{¶ 12} The State, arguing against this result, cites prior decisions from this court
that it claims expands the rule of Special Prosecutors to deprive a trial court of
jurisdiction where, although no direct appeal was filed, the time for filing such an appeal
had expired. In [CITATION], this court quoted, “It has
long been held that a trial court has no authority to even consider a motion to withdraw a
plea after a conviction has been affirmed on appeal; or, if there was no appeal, after the
time for filing the original appeal has passed.” Id. at ¶ 10, quoting [CITATION]. This court quoted the same language again in [CITATION].
5.
====== End of Part ====== {¶ 13} Importantly, though, neither [CITATION] nor [CITATION] involved a post-
sentence motion to withdraw a guilty plea being denied for lack of jurisdiction where a
direct appeal was not taken and the time for filing a direct appeal had expired. In [CITATION],
this court held that the trial court lacked jurisdiction because Caston’s conviction “was
expressly affirmed on appeal and the matter was remanded to the trial court solely for the
purpose of dealing with the merger issue.” [CITATION] at ¶ 11. In [CITATION], the post-sentence
motion to withdraw the guilty plea was denied on the basis of res judicata, not lack of
jurisdiction. [CITATION] at ¶ 29. In [CITATION], like [CITATION], the conviction was affirmed on appeal
but the matter was remanded for “the limited purpose of applying the appropriate
procedures to merge the counts.” (Emphasis sic.) [CITATION] at ¶ 13. Therefore, those cases
cannot be relied upon as an expansion of the Special Prosecutors rule.
{¶ 14} Instead, this court has adopted the analytical framework originally
articulated in the concurring opinion in [CITATION]:
[SEGMENT 2]
In step one, the question is whether the defendant’s conviction was
appealed and affirmed on appeal? If the answer is yes, then the trial court
has no jurisdiction to entertain the post-sentence motion to withdraw under
Special Prosecutors. If the answer is no, the court must proceed to step
two. In step two, the question is whether the defendant relies upon
evidence contained within the trial court record to support his post-sentence
motion to withdraw? If the answer is yes, then the defendant’s motion is
barred by res judicata under [CITATION] and its progeny. If the answer is no, the
court must proceed to step three.
6. In step three, which is applicable where the defendant did not appeal his
conviction and raises arguments to support his post-sentence motion to
withdraw that rely upon evidence outside the trial record, the trial court
must address the motion on its merits and ascertain whether the defendant
should be allowed to withdraw his plea post-sentence in order to correct
manifest injustice as provided in Crim.R. 32.1.
[CITATION] at ¶ 34 (Zmuda, P.J., concurring); [CITATION], ¶ 11-16 (6th
Dist.); [CITATION], ¶ 11-12 (6th Dist.); see also [CITATION] at ¶ 5
(“[W]hile there is no jurisdictional bar to a trial court’s entertaining a postsentence
Crim.R. 32.1 motion where there has been no appeal, the doctrine of res judicata does bar
a defendant from raising in that motion those matters that ‘could fairly [have] be[en]
determined’ in a direct appeal from his conviction, without resort to evidence outside the
record.”).2
{¶ 15} In this case, the analysis never proceeded beyond the first step. Because
Vasquez never appealed his conviction, however, the trial court retained jurisdiction to
consider his Crim.R. 32.1 post-sentence motion to withdraw his guilty plea. Therefore,
the trial court erred when it denied the motion for lack of jurisdiction and without
2
The concurring opinion seeks to overturn this court’s precedence in [CITATION] for the same reason cited by Vasquez, which is that the rule in Special
Prosecutors should no longer be enforced. As mentioned above, however, the issue of
whether a trial court retains jurisdiction to entertain a Crim.R. 32.1 motion to withdraw a
guilty plea following an appeal is not before this court. Thus, any argument on the
continued viability of the test announced in [CITATION] is best left for
another day and for a case that squarely presents the issue.
7. considering whether Vasquez’s motion was barred by res judicata, and if it was not,
whether it succeeded on the merits.
{¶ 16} Accordingly, Vasquez’s assignment of error is well-taken.
IV. Conclusion
{¶ 17} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas is reversed and the matter is remanded to the trial court for further
proceedings consistent with this decision. The State is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment reversed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also [CITATION].
Thomas J. Osowik, J. ____________________________
JUDGE
Charles E. Sulek, P.J.
CONCUR ____________________________
JUDGE
Christine E. Mayle, J. ____________________________
CONCURS AND WRITES JUDGE
SEPARATELY.
MAYLE, J.
{¶ 18} I concur in the judgment of the majority because I agree that the trial court
has jurisdiction to consider Vasquez’s Crim.R. 32.1 motion. I write separately because
several of this court’s cases—some of which the majority cites but distinguishes—
contain statements of law that are no longer accurate following the Ohio Supreme Court’s
8. decisions in [CITATION], and [CITATION].3 Moreover, under [CITATION] and [CITATION], the first
step of the three-step analysis relied on by the majority is invalid.
{¶ 19} In [CITATION], the Ohio Supreme Court held that “the holding in [CITATION] does not bar the trial court’s jurisdiction over posttrial
motions permitted by the Ohio Rules of Criminal Procedure” because “[t]hese motions
provide a safety net for defendants who have reasonable grounds to challenge their
convictions and sentences.” Id. at ¶ 37. It more specifically recognized in [CITATION] that
relief from final judgment may be sought under procedures authorized by statute or rule,
including under Crim.R. 32.1. Id. at f.n. 3. [CITATION] did not qualify this statement to allow
trial-court jurisdiction only in cases that were not directly appealed.
{¶ 20} Notwithstanding these decisions, this court has continued to perpetuate the
proposition that a trial court lacks jurisdiction to consider a motion to withdraw a plea
under Crim.R. 32.1 after a conviction has been affirmed or the time for filing an original
appeal has passed. See, e.g., [CITATION], ¶ 23 (6th Dist.) (“[CITATION]”), quoting [CITATION], quoting [CITATION],
¶ 11 (3d Dist.) (“[A] trial court has no authority to even consider a
motion to withdraw a plea after a conviction has been affirmed on appeal; or, if there was
no appeal, after the time for filing the original appeal has passed.”) (Internal quotations
3
To avoid confusion among the several “Davis” decisions, I am including the
defendants’ first names when referencing [CITATION], and [CITATION].
9. omitted.); [CITATION] (“[A] trial court has no
jurisdiction to determine a motion to withdraw a guilty plea once the original judgment is
appealed.”); [CITATION], citing [CITATION] (“Crim.R. 32.1 does not vest jurisdiction in the trial court to determine a motion
to withdraw a guilty plea which is filed subsequent to an appeal and an affirmance by the
appellate court.”). These statements are simply incorrect under Roland Davis and Janas.
{¶ 21} The majority also cites with approval the concurring opinion in Anton
Davis, which sets forth a three-step analysis for determining whether a court may
entertain a Crim.R. 32.1 motion to withdraw a plea. The first step requires the court to
determine whether the defendant’s conviction was appealed and affirmed on appeal.
Under this analysis, if the conviction “was appealed and affirmed on appeal . . . then the
trial court has no jurisdiction to entertain the post-sentence motion to withdraw. . . .” Id.
at ¶ 34. The majority finds that Vasquez never filed a direct appeal, thus the trial court
retained jurisdiction to consider his Crim.R. 32.1 motion. But reciting and applying this
three-step analysis reinforces an incorrect legal proposition. We should simply
acknowledge that in some of our cases, including Anton Davis, we have mistakenly
overlooked the impact of the Ohio Supreme Court’s decisions in Roland Davis and
Janas.
{¶ 22} The Tenth District appropriately owned up to this mistake in [CITATION]. In Enyart, after the trial court denied several
motions to suppress, the defendant pled no contest in 2008 to numerous charges, was
found guilty, and was sentenced to maximum, consecutive prison sentences. On direct
10. appeal, he argued that his no contest pleas were involuntary and the trial court failed to
comply with Crim.R. 11 in accepting them. The Tenth District affirmed his convictions
([CITATION]). In 2009, it granted the defendant’s application to reopen his appeal based on
a claim of ineffective assistance of appellate counsel, but ultimately, overruled the
assigned error ([CITATION]).
{¶ 23} In April 2017, the defendant filed his first motion to withdraw his no
contest plea under Crim.R. 32.1 on the basis that he had recently discovered evidence
proving that police illegally searched his home before serving him with a search warrant.
The trial court denied the motion and in 2018, the Tenth District affirmed ([CITATION]).
Relying on [CITATION], it found, sua sponte, that the trial court lacked
jurisdiction to consider the defendant’s Crim.R. 32.1 motion because his conviction had
been affirmed on appeal.
{¶ 24} In May 2022, the defendant filed a second motion to withdraw his no
contest plea under Crim.R. 32.1. This time he accused the State of withholding portions
of the police file. He claimed that he had only recently obtained the entire case file as
part of a settlement of a civil suit and through a public records request. He characterized
the evidence as newly discovered. Relying on [CITATION], the trial court denied the
motion for lack of jurisdiction. The defendant appealed.
{¶ 25} The Tenth District observed that generally, appellate courts will not make
legal arguments for an appellant, and the defendant provided no legal authority to the trial
court to explain why [CITATION] was wrongly decided. Nevertheless, it acknowledged that
[SEGMENT 3]
it had a duty to perpetuate “legally sound decisions by applying the correct controlling
11. precedent.” [CITATION] at ¶ 22. It recognized that where “‘a statement of law is incorrect, a court
should not forbear to correct the error on the principal of stare decisis, but should right
the wrong at the earliest opportunity.’” [CITATION], quoting [CITATION],
1990 WL 40146, *2 (6th Dist. Apr. 6, 1990), citing [CITATION], 19 Ohio St. 55, 62
(1869).
{¶ 26} The Tenth District explained that in [CITATION] III, it relied on the Supreme
Court of Ohio’s “unambiguous holding in [CITATION] that ‘Crim. R. 32.1 does
not vest jurisdiction in the trial court to maintain and determine a motion to withdraw [a]
guilty plea subsequent to an appeal and an affirmance by the appellate court.’” [CITATION] at ¶
23, quoting [CITATION] at 97. However, it observed that in the years after
[CITATION], the Supreme Court reversed course as articulated in both [CITATION]. It concluded that “[a]s a result, [CITATION] can no longer be
construed as divesting a trial court of its continuing jurisdiction over post-sentence
motions that are permitted by the Ohio Rules of Criminal Procedure or Ohio law.” [CITATION] at
¶ 26. As such, it found that contrary to [CITATION] III, “[CITATION] no longer applies
to post-sentence motions to withdraw a guilty or no contest plea filed pursuant to Crim.R.
32.1.” [CITATION] It acknowledged its mistake in continuing to hold otherwise after [CITATION]. It
explained that it could not “in good conscience and in light of [CITATION], continue to
adhere—or issue precedent that binds trial courts to adhere—to [CITATION] in
disposing of any postconviction motions authorized by statute or the criminal rules on
jurisdictional grounds.” [CITATION] It found that the trial court had jurisdiction to consider the
12. merits of the defendant’s motion to withdraw his plea, and reversed and remanded to the
trial court.
{¶ 27} Like the Tenth District in [CITATION], I believe we must explicitly acknowledge
that we have mistakenly continued to cite [CITATION] for a proposition of law
that was abrogated by [CITATION] and [CITATION]. A trial court does maintain jurisdiction
to consider a post-sentence Crim.R. 32.1 motion. To that end, we should not cite or
apply the first step of the [CITATION] analysis.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
13. **===== Part of a Court Ruling =====**
[edit]
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230644
TRIAL NO. B-2304311
Plaintiff-Appellee, :
vs. :
O P I N I O N.
DEMARCO GOWDY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 8, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Brian T. Goldberg, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} Surveillance camera footage in a McDonald’s parking lot showed
defendant-appellant Demarco Gowdy engaged in a fight with another man where
Gowdy used a firearm to bludgeon and shoot his adversary. Fortunately, he survived.
{¶2} Facing felonious-assault charges, Gowdy filed a notice of self-defense
and prepared to go to trial. But after the trial court reviewed the surveillance footage
and told Gowdy that it would not provide a self-defense jury instruction, Gowdy
pleaded guilty to reduced charges. Gowdy now appeals, arguing his plea was coerced
and therefore involuntary because the trial court prematurely ruled on the issue of
self-defense without hearing all the evidence at trial.
{¶3} The trial court misstated the self-defense law by saying that Gowdy had
“to prove something” before the trial court would provide a self-defense instruction.
Further, the trial court erroneously weighed the evidence and prematurely ruled on
the issue of self-defense before hearing all the evidence. But because we hold that
Gowdy’s decision to plead guilty to reduced charges was knowing, voluntary, and
intelligent, we affirm the trial court’s judgment.
I. Facts and Procedure
{¶4} In August 2023, Gowdy fought Mohammad Diol in a McDonald’s
parking lot. During the fight, Gowdy drew a firearm with which he bludgeoned and
shot Diol, who sustained nonfatal injuries.
{¶5} The state indicted Gowdy on one count of felonious assault in violation
of R.C. 2903.11(A)(2), with two firearms specifications, and one count of felonious
assault in violation of R.C. 2903.11(A)(1) with a forfeiture specification. Gowdy
pleaded not guilty and later filed a notice of self-defense.
OHIO FIRST DISTRICT COURT OF APPEALS
A. The trial court viewed a video of the altercation
{¶6} In October 2023, Gowdy appeared for a plea or trial setting where the
state requested a continuance because Diol was still recovering in the hospital from
his gunshot injuries. After Gowdy’s attorney informed the court that he had not yet
received surveillance video of the altercation, the court asked if Gowdy wanted the
court to watch the video. The court noted, “Sometimes I shortcut a lot of trials by
watching the video.” Initially, Gowdy said no. After the court granted the state’s
request for a continuance, Gowdy requested a bond reduction and the trial court
responded that it wanted to watch the video before ruling on the motion. Gowdy
agreed, and the court took a break to review the footage. After reconvening, the court
chose a November 2023 trial date to give Diol time to recover from his injuries.
{¶7} Gowdy asked for evidence that Diol was still in the hospital. The trial
court cautioned Gowdy and replied:
THE COURT: We’ve seen the video.
THE DEFENDANT: Yes, sir.
THE COURT: The video does not look good for you. I’ll tell you that right
off the bat.
THE DEFENDANT: I understand.
THE COURT: I mean you shot an unarmed man, so it’s on video.
THE DEFENDANT: He tried to take my gun off me while we was
tussling in the back of my car.
THE COURT: You brought the gun to the fist fight. You actually brought
a fist fight [sic] to the fist fight. You waited for him outside of a
McDonald’s.
OHIO FIRST DISTRICT COURT OF APPEALS
THE DEFENDANT: I was Door Dashing.
THE COURT: We saw the Door Dash parking area. You weren’t in the
Door Dash area.
THE DEFENDANT: There weren’t no more parking space.
THE COURT: Yes, there were. It’s on the video. There were five available
parking spaces. See, everything you’re telling me you need to watch
because it’s all on video. There were five spaces available and you didn’t
get out to get any food. You waited for him to come out with his food
and start the fight and you shot him.
THE DEFENDANT: I honestly --
THE COURT: If you want to have this conversation with me, that’s
between you and your attorney. Everything you’re telling me is just
digging a deeper hole.
{¶8} The trial court then denied Gowdy’s request to reduce bond.
B. Gowdy pleaded guilty to reduced charges
{¶9} On the day of trial, Gowdy’s attorney confirmed that Gowdy wanted to
proceed with a jury trial. But before the trial started, the court reviewed with Gowdy
his potential sentence, asked if Gowdy had watched the surveillance video, and then
told Gowdy, “[Y]our attorney is asking me for a self-defense charge to the jury, which
I don’t know if I’m going to grant at this point, but we’ll get to that in a moment.” The
court told Gowdy that a self-defense jury instruction required establishing certain
elements. The court continued:
THE COURT: So after reviewing the video and seeing everything that
occurred that day -- because the video was very clear -- I don’t think
[SEGMENT 4]
OHIO FIRST DISTRICT COURT OF APPEALS
you’re going to be able to meet your burden of proof on establishing the
first cause of self-defense, that you did not start the altercation. That’s
just the first tier, that you did not start the altercation.
In viewing the video, you were parked outside the McDonald’s.
It looked like you were waiting for the victim to come out, and you
approached him first.
He had food in his hand, he had no intention on [sic] getting into
a fight that day, but it looks as though you started the fight.
And then you brought a gun to a fistfight, so I don’t know -- even
after you testify -- if you’re going to be able to complete the elements of
self-defense.
So I’m telling you that now so that you can make an informed
decision that I probably won’t give the instruction of self-defense.
[CITATION] Gowdy argued with the trial court and provided his version of events.
The trial court told Gowdy, “[Y]ou can’t bring a gun to a fistfight. * * * You can’t defend
yourself by shooting him if the only weapon that he has is his fists.” The court believed
that Gowdy did not face a threat of serious harm because the video showed that Gowdy
knocked Diol down twice and Diol “never got a punch in.” Gowdy replied that he did
not know if Diol had a weapon.
[CITATION] The trial court and Gowdy disputed what the video depicted until the
trial court suggested that they watch the video together “for the sole purpose as to
whether or not I’m going to give the self-defense instruction.” Gowdy’s counsel noted
that if the case went to trial, he would “make that request again for the record,” to
which the court replied: “Well, of course.” The video was played in court.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} When the court came back on the record, Gowdy had decided to plead
guilty. As part of the plea deal, the state agreed to reduce Gowdy’s charges to
aggravated assault with a three-year gun specification and recommended a four-year
aggregate sentence.
{¶13} The trial court began the plea colloquy. When the trial court addressed
Gowdy to ask if he was voluntarily entering the plea, Gowdy replied, “Yes, sir. I just
feel like we should have left it up to the jury to decide if it was self-defense or not, but
I understand.” The trial court cautioned, “If you feel like I’ve coerced you in this way,
then I won’t accept your plea and we’ll just have a jury trial.” Gowdy responded by
noting that the trial court was not going to give a self-defense instruction. The court
replied, “[H]e has a right to argue against that.”[CITATION] Gowdy and the trial court discussed
whether self-defense applied to Gowdy’s case.
{¶14} The trial court again explained that it would not accept the plea if Gowdy
felt like the court had threatened Gowdy or made it difficult for him to make a decision.
Gowdy responded:
that’s like just put me in a box. * * * there ain’t no way, you know what
I’m saying * * * I feel like the jury should decide if it was self-defense or
not. That’s just how I feel. But y’all are already ruling it out for the jury
not to even know.
{¶15} The trial court again told Gowdy that he could request a self-defense
instruction, though “it’s not guaranteed.”
[CITATION]
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} The trial court acknowledged that it could not hear any audio in the
video, which Gowdy argued demonstrated why the issue should have been left up to
the jury. The trial court replied:
THE COURT: All right. I’m going to leave it up to the jury if you want, if
that’s what you want.
THE DEFENDANT: Well, I just want to know will they be instructed on
self-defense?
THE COURT: No.
THE DEFENDANT: See, that’s what I'm saying. So I’m put in a box
again where I’m just going to be tried for if I shot him or not.
THE COURT: Right.
THE DEFENDANT: That’s what I’m saying. So I’m in a box, so that’s
why I’m taking the plea. I’ll take the plea.
{¶17} Later, Gowdy again protested not being able to argue self-defense. The
court replied, “[W]ell, you’re making it sound like we’re coercing you into it, rather
than assisting you in making a good decision.”
{¶18} Gowdy consulted with his attorney and the trial court completed the
plea colloquy, found Gowdy guilty, and imposed the agreed sentence of one year on
the aggravated-assault charge and three years on the gun specification to be served
consecutively to the assault charge for a total sentence of four years’ incarceration.
II. Law and Analysis
A. First Assignment of Error: Involuntary Plea
{¶19} In his first assignment of error, Gowdy argues that the trial court erred
in accepting his guilty plea because Gowdy did not knowingly, intelligently, and
OHIO FIRST DISTRICT COURT OF APPEALS
voluntarily enter the plea. Gowdy asserts that the trial court prematurely and
incorrectly ruled on whether it would provide a self-defense instruction before hearing
all the evidence at trial and that its ruling coerced him into pleading guilty.
. Self-defense law
{¶20} A person’s right to use force in self-defense is codified under R.C.
2901.05, which provides:
A person is allowed to act in self-defense, defense of another, or defense
of that person’s residence. If, at the trial of a person who is accused of
an offense that involved the person’s use of force against another, there
is evidence presented that tends to support that the accused person used
the force in self-defense * * * the prosecution must prove beyond a
reasonable doubt that the accused person did not use the force in self-
defense.
R.C. 2901.05(B)(1).
{¶21} A defendant is entitled to a self-defense jury instruction where there is
evidence tending to support that (1) the defendant was not at fault in creating the
situation leading to the use of force, (2) the defendant had a “bona fide belief” that the
defendant was in “imminent danger of death or great bodily harm,” from which he
could not escape without the use of force, and (3) the defendant did not violate a duty
to retreat. [CITATION], ¶ 23, quoting [CITATION], ¶ 14. A person has
no duty to retreat “if that person is in a place in which the person has a lawful right to
be.” R.C. 2901.09(B).
{¶22} The defendant has the burden of production in support of a self-defense
OHIO FIRST DISTRICT COURT OF APPEALS
claim. [CITATION] at ¶ 19. This burden is “de minimis and can be satisfied with the state’s
own evidence.” Id. at ¶ 1. The defendant meets this burden of production “if the
defendant’s evidence and any reasonable inferences about that evidence would allow
a rational trier of fact to find all the elements of a self-defense claim when viewed in
the light most favorable to the defendant.” [CITATION] at ¶ 25. Once the defendant
meets this minimal burden of production, the burden shifts to the state to disprove
self-defense beyond a reasonable doubt. R.C. 2901.05(B)(1).
{¶23} The trial court is in the best position to determine whether the
defendant has met the burden of production, and its decision granting or denying a
requested instruction is reviewed for an abuse of discretion. [CITATION] at ¶ 22. But
importantly, “a trial court must consider only the adequacy of the evidence
presented—not its persuasiveness.” Id. at ¶ 21. The [CITATION] court emphasized that
“[t]he question is not whether the evidence should be believed but whether the
evidence, if believed, could convince a trier of fact, beyond a reasonable doubt, that
the defendant was acting in self-defense.” (Emphasis in original.) Id. In [CITATION], the
court held that the trial court abused its discretion in denying a self-defense claim
where the trial court, believing that the defendant was “at fault” in starting the
altercation, “looked at the persuasiveness of the evidence presented rather than the
adequacy of the evidence presented. It improperly weighed the evidence and
considered whether it found [CITATION]’s evidence credible and believable.” Id. at ¶ 22.
{¶24} The trial court improperly enhanced Gowdy’s burden for receiving a
self-defense instruction. The trial court stated that Gowdy had to “prove something
first in order for me to give that instruction” and “I don’t think you’re going to be able
to meet your burden of proof on establishing the first cause of self-defense, that you
OHIO FIRST DISTRICT COURT OF APPEALS
[SEGMENT 5]
did not start the altercation.” Gowdy did not need to prove anything to receive the
instruction. Instead, he simply needed to submit evidence which, if believed, would
establish the elements of self-defense.
{¶25} And we agree with Gowdy that the trial court improperly weighed the
limited evidence available to it before stating that it would not provide a self-defense
instruction. The trial court stated that, in its view of the evidence, “[I]t looked like you
were waiting for the victim to come out, and you approached him first. He had food in
his hand, he had no intention on getting into a fight that day, but it looks as though
you started the fight.” The trial court weighed the limited evidence, made inferences
against Gowdy, and determined that Gowdy could not prove a self-defense claim.
Whether the surveillance video made Gowdy’s version of events not credible was
irrelevant to whether Gowdy had met his burden of production. The trial court
discounted Gowdy’s statements and used the surveillance video to effectively cross-
examine Gowdy about what happened during the altercation.
{¶26} Although the trial court misstated the self-defense law and prematurely
indicated it would not provide a self-defense instruction, that does not require reversal
in this case because Gowdy chose to plead guilty.
. Gowdy’s plea was voluntary
{¶27} When defendants waive their rights to a jury trial and plead guilty, they
also waive any challenge to the trial court’s pretrial rulings. [CITATION]; see [CITATION]. When defendants
====== End of Part ====== OHIO FIRST DISTRICT COURT OF APPEALS
plead guilty, they are limited on appeal to challenging only the validity of the plea itself.
Id.
{¶28} “Due process requires that a defendant’s plea be made knowingly,
intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.” [CITATION] Crim.R. 11(C)
governs the process under which a trial court accepts a guilty plea to a felony. Before
accepting a plea, the trial court must personally address the defendant to ensure that
the defendant is entering into the plea voluntarily and “engage the defendant in a
detailed colloquy before accepting his or her plea.” [CITATION]; Crim.R. 11(C)(2)(a)-
(c). A guilty plea induced by promises, threats, or coercion is involuntary and void even
if the trial court otherwise complies with Crim.R. 11(C)’s requirements. [CITATION]
{¶29} In [CITATION], this court held that a defendant’s guilty plea was not coerced
after the trial court denied the defendant’s motion for a continuance of his trial where
the trial court offered the defendant additional time to consider the plea and assured
the defendant that a trial was still available. [CITATION] The court noted that the
defendant’s statements during the plea colloquy that he felt “bombarded,” wished to
“rekindle the process anew,” and wanted a continuance represented the defendant’s
dissatisfaction with choosing between pleading guilty or “gambling on heftier
sanctions at trial, rather than coercion.” Id. at ¶ 8.
{¶30} Other courts have held that erroneous denials of pretrial motions do not
provide grounds to challenge a guilty plea as involuntary. See [CITATION]
OHIO FIRST DISTRICT COURT OF APPEALS
* Once again we emphasize that after the petitioner stated he felt he was being coerced
by virtue of the trial court’s ruling, the matter was ordered to trial. The petitioner then
stated that he understood the ruling, and desired to enter a plea of guilty. He further
stated that he knew and understood his rights.”); see also [CITATION] (holding that the trial court’s
erroneous denial of one of the defendant’s seven motions in limine did not establish
that the defendant’s jury waiver was involuntary). Gowdy cites no cases, and we have
been unable to locate any, in which an incorrect pretrial ruling rendered a guilty plea
that otherwise complied with Crim.R. 11(C) (or an equivalent criminal rule)
involuntary.
{¶31} The record shows that on two separate court dates, the trial court stated
that Gowdy would not receive a self-defense instruction if he went to trial. Most of the
trial court’s statements regarding the availability of a self-defense claim indicated that
the court’s rulings were preliminary—the trial court stated that Gowdy’s attorney
would still be able to argue for a self-defense instruction at trial. During the actual plea
colloquy, however, the trial court appears to have definitively ruled on Gowdy’s
request when it answered “no” to Gowdy’s renewed question of whether the court
would provide the instruction.
{¶32} While Gowdy argues that he was coerced into accepting a plea by the
trial court’s ruling on self-defense, the record does not support this contention.
Although Gowdy repeatedly noted his disagreement with the trial court’s ruling,
Gowdy expressly stated that he was entering the plea voluntarily. And each time
Gowdy protested about the self-defense instruction, the trial court stopped the
colloquy, asked Gowdy if he felt coerced to plead guilty, and assured Gowdy that he
OHIO FIRST DISTRICT COURT OF APPEALS
could still go to trial. Gowdy was also given time to consult with his attorney. Knowing
that he had the right to proceed to trial, Gowdy chose to plead guilty and accept a
reduced sentence rather than risk going to trial, being denied a self-defense
instruction, and being convicted on greater charges.
{¶33} “Defendants often face difficult, if not gut-wrenching, decisions
regarding whether to accept a plea deal. The challenge of reaching that decision,
however, does not automatically render it the product of coercion.” [CITATION] at ¶ 9. While Gowdy might have felt boxed
in by the trial court’s ruling, Gowdy’s decision to plead guilty was a voluntary choice
between his two options of going to trial and appealing or pleading guilty to reduced
charges. The trial court’s misstating the self-defense law does not render Gowdy’s plea
involuntary.
. Gowdy failed to argue that the trial court’s misstating his
potential sentence caused prejudice
{¶34} Gowdy points out that the trial court overstated his potential maximum
sentence. After Gowdy’s attorney stated that Gowdy wanted to go to trial, the trial
court stated, “You understand that you’re looking at 11 years on each count, total of 22
years, plus two gun specs; is that right? * * * Six years on the gun[] specs. So you’re
looking at 28 years.” Gowdy asserts that, had he been convicted on all counts and
specifications in the indictment, the trial court would have been required to merge
both counts one and two and the two gun specifications, rendering his maximum
sentence 14-to-19-and-one-half years.
{¶35} A defendant may be convicted for multiple offenses based on the same
conduct “if any one of the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were committed separately,
OHIO FIRST DISTRICT COURT OF APPEALS
or (3) the conduct shows that the offenses were committed with separate animus.”
[CITATION]; R.C. 2941.25(B).
{¶36} Counts one and two would not have merged because they charged
Gowdy with separate acts resulting in separate and identifiable harms: (1) striking Diol
with the handgun, and (2) shooting Diol with the handgun. See [CITATION] (stating
offenses of dissimilar import exists “if the harm that results from each offense is
separate and identifiable.”). Gowdy was therefore facing a potential maximum
sentence of 22 years on counts one and two.
{¶37} The indictment included a three-year firearm specification and a one-
year firearm specification, both attached to count one. Had Gowdy been convicted of
both specifications related to count one, the trial court could have sentenced him on
only one of the specifications. R.C. 2929.14(B)(1)(a) (“if an offender who is convicted
of or pleads guilty to a felony also is convicted of or pleads guilty to a specification of
the type described in section 2941.141, 2941.144, or 2941.145 of the Revised Code, the
court shall impose on the offender one of the following prison terms”). With the three-
year specification, Gowdy’s maximum sentence was 25 years, rather than 28 years as
stated by the trial court.
{¶38} But Gowdy has not argued that he was prejudiced by this error. See [CITATION] (“a defendant is
not entitled to have his plea vacated unless he demonstrates he was prejudiced by a
failure of the trial court to comply with the provisions of Crim.R. 11(C).”). Indeed,
Gowdy does not definitively argue that the trial court’s misstatement of the total
potential sentence affected his decision to enter a guilty plea. Instead, Gowdy states
that the trial court’s incorrect statements about his sentence “may have also
OHIO FIRST DISTRICT COURT OF APPEALS
improperly influenced his decision to enter a plea of guilty” and suggests, “perhaps his
decision would have been different.” These statements fail to argue prejudice and it is
not the role of this court to formulate a prejudice argument on Gowdy’s behalf. See
[SEGMENT 6]
[CITATION], ¶ 22 (10th Dist.).
{¶39} We overrule Gowdy’s first assignment of error.
B. Second Assignment of Error: Right to a Jury Trial
{¶40} In his second assignment of error, Gowdy argues that the trial court
denied him his right to a jury trial under the Sixth Amendment to the United States
Constitution and Article I, Section 5 of the Ohio Constitution. Gowdy asserts that he
had a constitutional right to have a jury determine whether he acted in self-defense.
Other than this assertion, Gowdy did not develop this argument.
{¶41} Courts presume that a written jury waiver is knowing, intelligent, and
voluntary. [CITATION], at ¶ 93, citing [CITATION]. In [CITATION], the Supreme
Court of Ohio held that a trial court’s erroneous denial of one of the defendant’s seven
motions in limine did not rebut the presumption that the defendant’s jury waiver was
voluntary. [CITATION] at ¶ 93.
{¶42} Gowdy signed a written jury waiver. As such, we presume the waiver
was knowing, intelligent, and voluntary. And as noted above, the trial court stopped
the plea colloquy multiple times to assure Gowdy that he could still proceed with a jury
trial. There is nothing in the record to show that Gowdy’s waiver of his right to a jury
trial was involuntary. We overrule Gowdy’s second assignment of error.
OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶43} For the foregoing reasons, we overrule the assignments of error and
affirm the trial court’s judgment.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-209
v. : (M.C. No. 2022CRX-052122)
[R.L.W.], : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on April 2, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: [R.L.W.], pro se.
APPEAL from the Franklin County Municipal Court
BOGGS, J.
{¶ 1} Defendant-appellant, R.L.W., appeals a judgment of the Franklin County
Municipal Court that denied his application to seal the record of the dismissal of a charge
against him for aggravated robbery. For the following reasons, we reverse that judgment
and remand for further proceedings.
{¶ 2} On November 18, 2022, R.L.W. filed applications to seal the records in
multiple municipal court cases pursuant to former R.C. 2953.52. The trial court granted all
but one application, which is the subject of this appeal. In the appealed case, R.L.W. sought
to seal records related to a 2016 charge of aggravated robbery, a felony of the first degree in
violation of R.C. 2911.01(A). The trial court dismissed the aggravated robbery charge less
than ten days after it was filed. R.L.W. was subsequently indicted in the United States
District Court for the Southern District of Ohio on charges arising out of the same No. 23AP-209
circumstances that gave rise to the aggravated robbery charge. R.L.W. was ultimately
convicted of federal offenses and sentenced to 15 years in prison.
{¶ 3} The trial court denied R.L.W.’s application to seal the record of the dismissed
charge in a judgment time stamped February 17, 2023, but not entered on the record until
February 21, 2023.1 The trial court stated that it denied R.L.W.’s application because the
“municipal court [was] not the appropriate venue for that case number.” (Feb. 17, 2023
Entry.)
{¶ 4} R.L.W. now appeals the February 17, 2023 judgment. Plaintiff-appellee, the
State of Ohio, initially argues that this court should dismiss R.L.W.’s appeal as untimely
pursuant to App.R. 4. The state contends that R.L.W. filed his notice of appeal well after
the 30-day window to appeal the February 17, 2023 judgment had closed. We disagree.
{¶ 5} “An appeal as of right shall be taken by filing a notice of appeal with the clerk
of the trial court within the time allowed by Rule 4.” App.R. 3(A). If an appellant fails to
meet the timing requirements of App.R. 4, then the court of appeals lacks jurisdiction to
hear the appeal. [CITATION], ¶ 17.
{¶ 6} Pursuant to App.R. 4(A)(1), “a party who wishes to appeal from an order that
is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of
that entry.” The timing requirement of App.R. 4(A)(1) is subject to App.R. 4(A)(3), which
states that, “[i]n a civil case, if the clerk has not completed service of notice of the judgment
within the three-day period prescribed in Civ.R. 58(B), the 30-day period[ ] referenced in
App.R. 4(A)(1) * * * begin[s] to run on the date when the clerk actually completes service.”
According to Civ.R. 58(B):
When the court signs a judgment, the court shall endorse
thereon a direction to the clerk to serve upon all parties not in
default for failure to appear notice of the judgment and its date
of entry upon the journal. Within three days of entering the
judgment upon the journal, the clerk shall serve the parties in
a manner prescribed by Civ.R. 5(B) and note the service in the
appearance docket. Upon serving the notice and notation of
the service in the appearance docket, the service is complete.
1 We will refer to this judgment as the February 17, 2023 judgment. Ideally, the time stamp on a judgment
should match the date a judgment is entered on the record. No. 23AP-209
{¶ 7} Construed together, App.R. 4(A)(1) and (A)(3) establish service of the notice
of judgment as the triggering event that starts the 30-day appeal period. Clermont Cty.
Transp. Improvement Dist. [CITATION], ¶ 6. If timely service is accomplished pursuant to Civ.R. 58(B), then the appeal period
begins to run on the date of judgment; but where such service is lacking, the appeal period
is tolled until the clerk completes service. [CITATION], ¶ 16; accord Gator Milford, L.L.C. at ¶ 7 (“Timeliness is defined as 30
days from the date of the final order or from the date that the clerk completes service if
service is not completed within three days of entering the judgment on the journal.”).
{¶ 8} Expungements are civil in nature. [CITATION], ¶ 25. Consequently, we apply App.R. 4(A)(3) and Civ.R. 58(B) to
determine whether R.L.W. filed a timely appeal. See [CITATION], ¶ 6 (2d Dist.) (noting the civil nature of expungement and applying
App.R. 4 and Civ.R. 58(B) to determine the timeliness of the appeal from a judgment
denying an application for expungement). The February 17, 2023 judgment does not
contain a Civ.R. 58(B) directive to the clerk, and no notation of service of the judgment
appears in the trial court’s journal. Because the clerk did not accomplish service as required
by Civ.R. 58(B), the period to appeal the February 17, 2023 judgment never began to run.
R.L.W.’s appeal, therefore, is timely.
{¶ 9} Although R.L.W. filed a timely notice of appeal, he failed to comply with the
Rules of Appellate Procedure when he filed his brief. Most problematically, R.L.W. does
not set forth any assignments of error as required in App.R. 16(A)(3). Assignments of error
are particularly critical to an appeal because courts of appeal decide each appeal “on its
merits on the assignments of error set forth in the briefs under App.R. 16.” App.R.
12(A)(1)(b). Courts of appeal have discretion to dismiss appeals that fail to set forth
assignments of error. [CITATION], ¶ 14. However, in the interest
of serving justice, courts of appeal may instead review the appealed judgment using the
appellant’s arguments. [CITATION], ¶ 14. We will do that in this case. No. 23AP-209
[SEGMENT 7]
{¶ 10} Here, R.L.W. argues that the trial court erred in concluding that it was not
the “appropriate venue” for his application to seal the dismissal of his aggravated robbery
charge. (Feb. 17, 2023 Entry.) We agree.
{¶ 11} The statutory law in effect at the time that R.L.W. applied to seal his
dismissal governs this case. See [CITATION] (“the statutory law in effect at the time of filing an application to seal criminal records
is controlling”). According to that law, “[a]ny person, * * * who is the defendant named in
a dismissed complaint, indictment, or information, may apply to the court for an order to
seal the person’s official records in the case.” Former R.C. 2953.52(A)(1), 2011 Ohio
Sub.S.B. 268. The outcome of this case depends on the interpretation of this statute, which
is a question of law. [CITATION]. We thus apply the de novo standard of
review. [CITATION].
{¶ 12} When interpreting a statute, a court’s objective is to ascertain and give effect
to legislative intent. [CITATION]. We primarily define legislative intent
from the plain language of a statute. [CITATION]. If the meaning of a
statute is plain, the court applies it as written and undertakes no further interpretation of
the statute. [CITATION]. “ ‘To determine the plain meaning of a statute,
a court relies on the definitions provided by the legislative body.’ ” [CITATION], quoting [CITATION].
{¶ 13} Because the trial court found that it was not the appropriate venue for
R.L.W.’s application, we focus on identifying the forum in which former R.C. 2953.52(A)(1)
required a defendant to file his expungement application. As we set forth above, former
2953.52(A)(1) stated, “Any person, * * * who is the defendant named in a dismissed
complaint, indictment, or information, may apply to the court for an order to seal the
person’s official records in the case.” As used in former R.C. 2953.52(A)(1), “court” meant
“the court in which * * * a dismissal of the complaint, indictment, or information in the case
is entered on the minutes or journal of the court.” Former R.C. 2953.51(C), 2019 Ohio
Am.Sub.S.B. 10. Thus, reading the definition of “court” in conjunction with former R.C.
2953.52(A)(1), we conclude that former R.C. 2953.52(A)(1) permitted a defendant named No. 23AP-209
in a dismissed complaint to apply to the court in which the dismissal of the complaint was
entered for an order sealing the records of the dismissed case.
{¶ 14} In this case, the parties do not dispute that the dismissal of the complaint
charging R.L.W. with aggravated burglary was entered in the trial court. Therefore, the trial
court was the appropriate venue for R.L.W.’s application to seal the records of the dismissal.
The trial court erred in finding otherwise and denying R.L.W.’s application on that basis.
{¶ 15} On appeal, the state asserts multiple other grounds for the denial of R.L.W.’s
expungement application that the trial court did not address. The state asserts that
R.L.W.’s expungement application should fail because: (1) criminal proceedings remain
pending against R.L.W., (2) sealing of the dismissal would result in a partial sealing of
R.L.W.’s criminal record, and (3) the state’s interests in maintaining the record outweigh
R.L.W.’s interest in sealing the record. Appellate courts, as courts of review, generally do
not rule on arguments not decided in the first instance by the trial court. [CITATION]. Consequently, we will leave the state’s additional arguments
for the trial court to sort out, if the state raises them on remand.
{¶ 16} For the foregoing reasons, we reverse the judgment of the Franklin County
Municipal Court, and we remand this matter for further proceedings consistent with the
law and this decision.
Judgment reversed;
cause remanded.
JAMISON and EDELSTEIN, JJ., concur.
[Cite as [CITATION].]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30660
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHAD JAY COBB COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2012-07-1887-A
DECISION AND JOURNAL ENTRY
Dated: March 13, 2024
CARR, Judge.
{¶1} Defendant-Appellant Chad Jay Cobb appeals, pro se, the judgment of the Summit
County Court of Common Pleas. This Court reverses and remands the matter for proceedings
consistent with this decision.
I.
{¶2} Cobb pleaded guilty in 2013 to several serious charges, including aggravated
murder, kidnapping, aggravated robbery, and felonious assault, among others. Cobb was
sentenced to life without the possibility of parole. Cobb appealed, raising three assignments of
error for this Court’s review. See [CITATION]. Therein, Cobb argued that the trial court lacked subject matter jurisdiction over the aggravated
murder charge, he received ineffective assistance of counsel when his attorney failed to attend a
motion to dismiss hearing in municipal court, and that the trial court violated his right to counsel 2
by permitting his original counsel to withdraw. See id. at ¶ 4, 11, 14. This Court overruled his
assignments of error. Id. at ¶ 19.
{¶3} In December 2022, Cobb filed a pro se motion to withdraw his guilty plea. Cobb
argued that he was denied the effective assistance of counsel due to counsel’s failure to investigate
and/or a failure of counsel to communicate certain information to Cobb. In addition, Cobb
maintained that he was denied the effective assistance of counsel as trial counsel encouraged Cobb
to plead while Cobb was being threatened that he would lose parental rights to his children if he
did not plead. Thus, Cobb also asserted that his plea was coerced. Cobb further argued that [CITATION]
did not bar a consideration of the merits of his arguments.
{¶4} The State opposed the motion, asserting that [CITATION]
deprived the trial court of jurisdiction over Cobb’s motion, and, if it did not, Cobb’s arguments
failed on the merits. Cobb filed a reply brief.
{¶5} The trial court denied Cobb’s motion, concluding that it lacked jurisdiction based
upon the holding of [CITATION] and this Court’s precedent interpreting that
case and its progeny.
{¶6} Cobb has appealed, raising three assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S MOTION TO WITHDRAW GUILTY PLEA BASED ON
[CITATION] AND LACK OF JURISDICTION, IN VIOLATION OF DUE
PROCESS AS ESTABLISHED UNDER THE FOURTEENTH AMENDMENT
OF THE UNITED [STATES] CONSTITUTION, AND ARTICLE I, [SECTION]
10 OF THE OHIO CONSTITUTION, WHEN THE ENTIRE MOTION WAS 3
BASED ON FACTS THAT WERE NEWLY DISCOVERED AND/OR
WITHHELD FROM APPELLANT.
{¶7} Cobb asserts in his first assignment of error that the trial court erred in concluding
that it lacked jurisdiction to consider Cobb’s motion to withdraw his guilty plea based upon the
holding in [CITATION]. Under the facts of this case, and in light of recent
Supreme Court precedent, we agree.
{¶8} [CITATION] involved a writ of prohibition filed after a trial
court granted a defendant’s motion to withdraw a guilty plea after the defendant’s conviction had
been affirmed on appeal. See [CITATION]. In
examining whether the trial court possessed jurisdiction to rule on the defendant’s motion, the
Supreme Court stated that “the trial court’s granting of the motion to withdraw the guilty plea and
the order to proceed with a new trial were inconsistent with the judgment of the Court of Appeals
affirming the trial court’s conviction premised upon the guilty plea. The judgment of the reviewing
court is controlling upon the lower court as to all matters within the compass of the judgment.” Id.
at 97. The Court concluded that “the trial court lost its jurisdiction when the appeal was taken,
and, absent a remand, it did not regain jurisdiction subsequent to the Court of Appeals’ decision.”
Id. The Supreme Court went on to determine that “Crim.R. 32.1 does not vest jurisdiction in the
trial court to maintain and determine a motion to withdraw the guilty plea subsequent to an appeal
[SEGMENT 8]
and an affirmance by the appellate court. While Crim.R. 32.1 apparently enlarges the power of
the trial court over its judgments without respect to the running of the court term, it does not confer
upon the trial court the power to vacate a judgment which has been affirmed by the appellate court,
for this action would affect the decision of the reviewing court, which is not within the power of
the trial court to do.” Id. at 97-98. 4
{¶9} Since that time, this Court has frequently applied the holding in [CITATION] to matters involving motions to withdraw pleas when the conviction has been affirmed on appeal. See, e.g., [CITATION]; see also [CITATION] (Carr, J., concurring in judgment only) (noting that this Court has applied [CITATION] in a variety of scenarios).
{¶10} The Supreme Court subsequently discussed [CITATION] in [CITATION] involved a motion for a new trial based upon newly discovered evidence in a death penalty case following affirmance of the case on direct appeal and a not a motion to withdraw a guilty plea. See [CITATION]. Notwithstanding, the Supreme Court spoke broadly and stated that “the holding in [CITATION] does not bar the trial court’s jurisdiction over posttrial motions permitted by the Ohio Rules of Criminal Procedure.” [CITATION]. With respect to the facts of the case, the [CITATION] Court concluded that “a trial court retains jurisdiction to decide a motion for a new trial based on newly discovered evidence when the specific issue has not been decided upon direct appeal.” Id.
{¶11} While this Court did conclude that the Supreme Court’s opinion in [CITATION] did not alter this Court’s interpretation of [CITATION] with respect to Crim.R. 32.1 motions, the analysis therein received no majority. See [CITATION]. The lead opinion in [CITATION] ultimately determined that [CITATION] did not apply to Crim.R. 32.1 motions as Crim.R. 32.1 motions were not posttrial motions:
At first glance, [CITATION] may appear inconsistent with [CITATION]’s “does not bar ... posttrial motions” language because a defendant may move to withdraw his plea even after he has been convicted. Crim. R. 32.1 (“[T]o correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”). In [CITATION], however, the Supreme Court explained that it was only modifying [CITATION] 5
Special Prosecutors to the extent the case had been applied to “posttrial” motions.
A motion to withdraw a guilty plea does not follow a trial and, therefore, is not a
“posttrial” motion.
[CITATION] at ¶ 10.
{¶12} Years later, in [CITATION], the Supreme Court cited to both [CITATION] and [CITATION] in considering whether
a trial court’s alteration of a sentencing entry was a clerical correction. See [CITATION] at
¶ 3-6, 11. The Supreme Court reaffirmed the notion that, “[g]enerally, a trial court loses
jurisdiction to modify its judgment once that judgment has been affirmed on appeal.” Id. at ¶ 11,
citing [CITATION]. However, the Supreme Court also
stated that “[r]elief from final judgments in criminal cases is confined to the procedures authorized
by statute or rule.” [CITATION] at ¶ 11, citing [CITATION]. A footnote to that sentence specifically listed several rules, including Crim.R. 32.1, see [CITATION] at ¶ 11, fn. 3, and a parenthetical accompanying the citation to [CITATION] states that
“[CITATION] does not bar the trial court’s jurisdiction over posttrial motions
permitted by the Ohio Rules of Criminal Procedure[.]” [CITATION] at ¶ 11, quoting [CITATION]
at ¶ 37.
{¶13} While this Court has continued to apply [CITATION], see, e.g.
[CITATION], we have not yet expressly considered how [CITATION]
might alter how [CITATION] applies. Other districts have, however. See [CITATION].
{¶14} In [CITATION], the 10th District analyzed both [CITATION] and [CITATION] and
concluded that, taken together, “[CITATION] can no longer be construed as 6
divesting a trial court of its continuing jurisdiction over post-sentence motions that are permitted
by the Ohio Rules of Criminal Procedure or Ohio law.” [CITATION] at ¶ 26. The Tenth District then
held “that [CITATION] no longer applies to post-sentence motions to
withdraw a guilty or no contest plea filed pursuant to Crim.R. 32.1.” [CITATION] at ¶ 26.
{¶15} Irrespective of whether this Court agrees with the extent of the Tenth District’s
holding in [CITATION], this Court does agree that when [CITATION] is considered
along with more recent precedent, it must be concluded that the holding of [CITATION] has been clarified. We determine that, under the facts of this case, the trial court did
not lack jurisdiction to consider Cobb’s motion to withdraw his guilty plea. In so concluding, we
are mindful that the issues raised in Cobb’s motion to withdraw his guilty plea were not decided
in his direct appeal. See [CITATION]. Accordingly, the trial court erred in concluding that
[CITATION] deprived it of jurisdiction to consider Cobb’s motion in light of
the subsequent case law from the Ohio Supreme Court discussed above.
{¶16} Cobb’s first assignment of error is sustained, and the matter is remanded to the trial
court to consider Cobb’s motion to withdraw his guilty plea.
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL IN VIOLATION OF THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,
WHEN APPELLATE COUNSEL FAILED TO ADVISE HIS CLIENT THAT BY
FILING A DIRECT APPEAL, APPELLANT WOULD BE BARRED FROM
FILING A MOTION TO WITHDRAW HIS GUILTY PLEA IN THE EVENT
THAT NEWLY DISCOVERED EVIDENCE BECAME AVAILABLE.
ASSIGNMENT OF ERROR III
APPELLANT’S PLEA[] OF GUILTY WAS NOT MADE KNOWINGLY AND
INTELLIGENTLY, WHEN THE TRIAL COURT FAILED [SIC] INFORM HIM 7
OF THE CONSEQUENCES OF FILING A DIRECT APPEAL FOLLOWING
THAT GUILTY PLEA, IN VIOLATION OF OHIO CRIMINAL RULE 11, THE
DUE PROCESS CLAUSE OF THE OHIO CONSTITUTION AND THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
{¶17} Cobb’s arguments in his second and third assignments of error raise issues that were
not raised below and are outside the scope of the entry from which he appealed. See [CITATION]. In other words, the trial court did not consider or decide the issues in these
assignments of error in the judgment entry on appeal to this Court. Cobb’s second and third
assignments of error are overruled on that basis.
III.
{¶18} Cobb’s second and third assignments of error raise issues outside the scope of the
trial court’s judgment entry and this appeal and are overruled on that basis. Cobb’s first assignment
of error is sustained. The judgment of the Summit County Court of Common Pleas is reversed,
and the matter is remanded for the trial court to consider Cobb’s motion to withdraw his guilty
plea in the first instance.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 8
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
SUTTON, P. J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
CHAD JAY COBB, pro se, Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant
Prosecuting Attorney, for Appellee. It appears that the part of the court ruling intended for processing is missing. Kindly provide the specific part of the court ruling text you would like me to process, and I'll proceed with the task as requested.
[SEGMENT 9]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-244
v. : (C.P.C. No. 02CR-4820)
Richard Worrell, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 8, 2024
On brief: [Janet A. Grubb, First Assistant Prosecuting
Attorney], and Seth L. Gilbert for appellee. Argued: Seth L.
Gilbert.
On brief: The Law Office of Eric J. Allen, Ltd., and Eric J.
Allen for appellant.
APPEAL from the Franklin County Court of Common Pleas
EDELSTEIN, J.
{¶ 1} Defendant-appellant, Richard Worrell, appeals from the March 20, 2023
judgment of the Franklin County Court of Common Pleas denying the relief sought in his
“Motion To Exclude [Mr. Worrell] From Registering As A Violent Offender Pursuant To
R.C. 2903.41-2903.43 (Sierah’s Law).” (Mar. 20, 2023 Decision and Entry.) Specifically,
Mr. Worrell contended he should be excluded from the provisions of 2018 Am.Sub.S.B. No.
231 (“Sierah’s Law”) requiring him to register with the violent offender database annually
for ten years upon his release from prison because he was convicted of a qualifying offense
before the law took effect.
{¶ 2} Although Sierah’s Law clearly contemplates its application to defendants
classified as “violent offenders” who, like Mr. Worrell, are serving a term of confinement on No. 23AP-244
its effective date, Mr. Worrell argued, in contravention of relevant Ohio Supreme Court
precedent, that the law is unconstitutionally retroactive and violates his equal protection
rights. The trial court rejected those arguments. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL OVERVIEW
{¶ 3} In 2002, Mr. Worrell was indicted with three counts of rape, one count of
kidnapping, one count of abduction, and one count of felonious assault. Following a jury
trial, Mr. Worrell was convicted of all six counts in 2004.
{¶ 4} In April 2004, the trial court adjudicated Mr. Worrell a sexual predator and
imposed a total prison sentence of 19 years. Specifically, the trial court merged the
felonious assault and abduction charges into the kidnapping count, sentenced Mr. Worrell
to five years in prison for each of the three rape counts, imposed a four-year prison term for
the kidnapping offense, and ordered the prison sentences be served consecutively.
{¶ 5} This court affirmed Mr. Worrell’s convictions, sentence, and sexual-predator
classification in [CITATION]. However, on
May 3, 2006, the Supreme Court reversed the judgment of this court, in part, and remanded
to the trial court for resentencing consistent with its holding in [CITATION] regarding the imposition of nonminimum consecutive prison
sentences. See [CITATION]. On remand, the trial court conducted a resentencing hearing and
reimposed the same 19-year prison sentence. We affirmed that judgment on May 3, 2007.
[CITATION].
{¶ 6} In anticipation of his scheduled release from prison on December 21, 2022,
Mr. Worrell, through counsel, filed a motion on December 15, 2022 asking the trial court
to exclude him from the violent offender database registry requirements created by Sierah’s
Law and codified in sections 2903.41 through 2903.44 of the Ohio Revised Code.
{¶ 7} Effective March 20, 2019, Sierah’s Law created a violent offender database
and presumptively requires “violent offenders”—as defined in R.C. 2903.41(A)—to enroll
in that database for a period of ten years. R.C. 2903.41(A); R.C. 2903.42(A)(1). As
discussed more fully below, the General Assembly expressly provided for retroactive
application of Sierah’s Law by defining “violent offender” to include, in relevant part, any No. 23AP-244
person who was serving a term of confinement for a kidnapping offense on March 20, 2019,
when the law took effect. See R.C. 2903.41(A)(2); R.C. 2903.41(A)(1)(a).
{¶ 8} It is undisputed that Mr. Worrell was convicted of a kidnapping offense in the
case below and serving the 19-year term of confinement imposed in that case on March 20,
2019. Significantly, Mr. Worrell has not challenged the applicability of R.C. 2903.41(A)(2)
by arguing that he was not “confined * * * for the [kidnapping] offense” on March 20, 2019.1
Nor did he attempt to rebut the presumption that he would be required to enroll in the
violent offender database in the trial court by arguing that he was not the principal offender
in the commission of the kidnapping, as provided for in R.C. 2903.42(A)(2). And, indeed,
given the facts of this case, it does not appear such argument would be viable.
{¶ 9} Instead, Mr. Worrell objected to the application of Sierah’s Law in the trial
court by arguing that R.C. 2903.41(A)(2) is unconstitutionally retroactive under Article II,
Section 28 of the Ohio Constitution and violates the Equal Protection Clause of the United
States Constitution.
{¶ 10} On March 20, 2023, the trial court issued an entry rejecting those arguments
and denying Mr. Worrell’s motion for exclusion. Mr. Worrell timely appealed from that
judgment and asserts the following two assignments of error for our review:
[I.] THE TRIAL COURT ERRED [ABUSED ITS DISCRETION]
IN DENYING [OVERRULING] [MR. WORRELL’S]
MOTION[.]2
[II.] THE TRIAL COURT ERRED IN FINDING R.C. 29[0]3.
-[R.C.] 29[0]3.43 CONSTITUTIONAL[.]
1 Mr. Worrell was released from prison on December 21, 2022. See “Richard Worrell,” Offender Details, OHIO
DEPT. OF REHAB. & CORR., https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A468206
(accessed Feb. 7, 2024). This means that only 3 years and 9 months of his 19-year total prison sentence
remained when Sierah’s Law took effect on March 20, 2019. Notably, only 4 of those 19 years were imposed
for the kidnapping offense; the other 15 years of Mr. Worrell’s prison sentence pertained to the 3 counts of
rape (an offense not specified in R.C. 2903.41(A)(1)(a)’s “violent offender” definition). But Mr. Worrell did
not contend in the trial court—and does not argue on appeal—that R.C. 2903.41(A)(2) does not apply because
he was confined on one of the three rape offenses, not the kidnapping offense, when Sierah’s Law took effect.
We generally decline to make legal arguments for an appellant. See [CITATION], ¶ 22, citing [CITATION]. And
we do not address new arguments presented for the first time on appeal. See, e.g., [CITATION], ¶ 94. Thus, for purposes of this case, we must presume that Mr. Worrell was
confined for the kidnapping offense on March 20, 2019.
2 Mr. Worrell inconsistently states his first assignment of error in his merit brief. (Compare Brief of Appellant
at 1 with Brief of Appellant at 3.)
====== End of Part ====== No. 23AP-244
II. ANALYSIS
A. First Assignment of Error
{¶ 11} In his first assignment of error, Mr. Worrell takes issue with the trial court’s
contemplation of whether it had jurisdiction to entertain Mr. Worrell’s constitutionality
challenge to Sierah’s Law. (See Decision and Entry at 2, citing [CITATION].) He claims the trial court failed to rule on the merits of his
motion because it found that it lacked jurisdiction to hear the matter. (See Brief of Appellant
at 6.) But, on review, we find that contention is not substantiated by the record.
{¶ 12} In its decision, the trial court clearly entertained and ruled on the merits of
the two constitutionality challenges Mr. Worrell raised in his motion for exclusion from the
database registration requirements. (Decision and Entry at 2-4.) Thus, Mr. Worrell’s first
assignment of error fails to raise any cognizable error at all. It is axiomatic that we cannot
offer Mr. Worrell any relief on appeal from an error that did not occur.
{¶ 13} In its merit brief, the state argues the trial court lacked jurisdiction to
consider Mr. Worrell’s constitutionality challenge to Sierah’s Law since the law took effect
after Mr. Worrell had already been convicted and sentenced for the kidnapping offense.
(See Brief of Appellee at 10-16.) True, a “trial court’s jurisdiction over a criminal matter is
limited once the proceedings are complete.” [CITATION]. And, we recognize that Sierah’s Law confers limited continuing
jurisdiction upon common pleas courts over defendants who, like Mr. Worrell, are
classified as violent offenders while in prison pursuant to R.C. 2903.41(A)(2).
R.C. 2903.42(A)(2). Compare [CITATION], and [CITATION], with [CITATION] (Luper Schuster, J.,
concurring separately). But, the state did not file a cross-appeal in this case. Given such
procedural posture, we decline to define the bounds of such jurisdiction today.
{¶ 14} Mr. Worrell’s first assignment of error is overruled.
[SEGMENT 10]
B. Second Assignment of Error
{¶ 15} In his second assignment of error, Mr. Worrell argues the trial court erred in
finding Sierah’s Law constitutional. Whether a statute is constitutional presents a question
of law that we review de novo. Portage Cty. Educators Assn. for Dev. Disabilities-Unit B No. 23AP-244
v. State Emp. Relations Bd., [CITATION], citing [CITATION].
{¶ 16} In the trial court, Mr. Worrell argued that requiring him to enroll in the
violent offender database would violate the Retroactivity Clause contained in Article II,
Section 28 of the Ohio Constitution3 and the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.4
{¶ 17} At the time Mr. Worrell filed his motion in the lower court, the Ohio Supreme
Court had already held in [CITATION] and [CITATION]
(plurality opinion) that applying Sierah’s Law to violent offenders who committed their
offenses before the effective date of the law did not violate the prohibition on retroactive
statutes set forth in Article II, Section 28 of the Ohio Constitution. Inferior courts do not
have the authority to review, ignore, or overturn decisions of the Supreme Court that are,
in fact, binding upon them as precedent. See, e.g., [CITATION]. Although the defendants in [CITATION] and [CITATION] were both sentenced after Sierah’s Law took
effect—while Mr. Worrell, in contrast, was sentenced long before—Mr. Worrell does not
argue on appeal that the circumstances of his case would change the thrust of those
decisions. See, e.g., [CITATION].
{¶ 18} In fact, Mr. Worrell does not maintain in his appeal to this court that Sierah’s
Law, as applied to him, violates the Retroactivity Clause of the Ohio Constitution.5
3 Mr. Worrell did not make any claims in the trial court based on the Ex Post Facto Clause of Article I, Section
10 of the United States Constitution.
4 Although Article I, Section 2 of the Ohio Constitution contains a similar guarantee, Mr. Worrell did not
separately argue in the trial court—nor does he separately contend on appeal—that application of Sierah’s Law
violates the equal protection guarantee of the state constitution.
5 We note that because Mr. Worrell had already been sentenced to prison for kidnapping and was incarcerated
when Sierah’s Law took effect, his status as a violent offender falls within the realm of R.C. 2903.41(A)(2). As
such, the law required a prison official (or the official’s designee) to notify Mr. Worrell—in writing and within
a reasonable period of time before his December 21, 2022 release from prison—of the violent offender
database enrollment presumption established under R.C. 2903.42; his right to file a motion to rebut the
presumption; the procedure and criteria for rebutting the presumption; the effect of a rebuttal; and the post-
rebuttal hearing procedures and possible outcome. R.C. 2903.42(A)(1)(b). Mr. Worrell has not claimed that No. 23AP-244
(Compare Mot. at 4-8.) Instead, the focus of Mr. Worrell’s second assignment of error is
his contention that Sierah’s Law violates the Equal Protection Clause of the Fourteenth
Amendment because it does not equally apply to persons convicted of qualifying offenses
before Sierah’s Law took effect on March 20, 2019. Specifically, Mr. Worrell notes that the
law distinguishes between those who were imprisoned when the law became effective and
those who were not without any rational basis for doing so.6 (See Brief of Appellant at 7-
14.) For this reason, he maintains that the law is unconstitutional.
{¶ 19} The Fourteenth Amendment of the United States Constitution provides that
“[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the
laws.” “The Equal Protection Clause prevents states from treating people differently under
its laws on an arbitrary basis.” [CITATION], citing [CITATION]. “ ‘Whether any such differing treatment is to be deemed arbitrary depends on whether or
not it reflects an appropriate differentiating classification among those affected; the clause
has never been thought to require equal treatment of all persons despite differing
circumstances.’ ” Id., quoting [CITATION]. Rather, it “prohibits
treating similar groups differently based on criteria that are unrelated to the purpose of the
law.” [CITATION].
{¶ 20} When evaluating an equal protection claim, we must first determine the
proper standard of review. “When legislation infringes upon a fundamental constitutional
right or the rights of a suspect class, strict scrutiny applies.” [CITATION]. But when neither a fundamental right nor a
suspect class is implicated, we apply a rational-basis test. Id.
{¶ 21} There is no doubt that the rational-basis test applies in this case. Indeed, Mr.
Worrell concedes as much. (Brief of Appellant at 12-14.) This is because the statutory
the Ohio Department of Rehabilitation and Correction failed to comply in any respect with the notification
requirements mandated under R.C. 2903.42(A)(1)(b).
6 In his brief, Mr. Worrell actually uses the enactment date—not effective date—of Sierah’s Law to set the
parameters of the different classes. (See Brief of Appellant at 8-9.) Sierah’s Law was enacted on December 19,
2018 but did not take effect until March 20, 2019. See 2018 Am.Sub.S.B. No. 231. Nothing in the controlling
statutory provisions suggests the date of enactment has any bearing on the applicability of the law. See
R.C. 2903.41 through 2903.44. Although we have no obligation to do so, we presume Mr. Worrell meant to
delineate classes in terms of the law’s effective date. No. 23AP-244
classification Mr. Worrell identifies in R.C. 2903.41(A)—the date on which a person is
convicted of or serving a term of confinement for a qualifying offense—does not concern
either a suspect class or a fundamental right. See, e.g., [CITATION] (finding that sex
offenders were not within a suspect class and that the sex offender registration scheme did
not involve a fundamental right7); [CITATION].9 (applying a rational basis-test to the arson offender registry in R.C. 2909.15).
{¶ 22} “Under the rational-basis standard, a state has no obligation to produce
evidence to sustain the rationality of a statutory classification.” [CITATION], citing [CITATION].
“[S]tatutes are presumed to be constitutional and * * * courts have a duty to liberally
construe statutes in order to save them from constitutional infirmities.” [CITATION], citing
[CITATION]. Furthermore, “[t]he party
challenging the constitutionality of a statute ‘bears the burden to negate every conceivable
basis that might support the legislation.’ ” [CITATION], quoting [CITATION].
{¶ 23} “In conducting a rational-basis analysis, we will uphold the statute ‘if it is
rationally related to a legitimate governmental purpose.’ ” [CITATION], quoting [CITATION]. While a legislature need not “justify or
even state its reasons for making a particular classification,” the rational-basis test requires
a rational relationship between the classification and the governmental interest, or
reasonable grounds to draw the distinction. [CITATION], citing [CITATION]. Thus, “ ‘a
statute will not be invalidated if it is grounded on a reasonable justification, even if its
classifications are not precise.’ ” [CITATION], quoting [CITATION].
7 Later amendments to the sex offender registration statute were held punitive and improperly retroactive.
See [CITATION] (discussing Ohio’s Adam Walsh Act, enacted in 2007); [CITATION] (holding the new registration, verification, and
notification requirements established by the Adam Walsh Act had become so punitive that its retroactive
application was unconstitutional). No. 23AP-244
{¶ 24} Mr. Worrell correctly points out that Sierah’s Law does not apply to the class
of individuals who were convicted of offenses that qualify for violent-offender classification
under R.C. 2903.41(A)(1) before March 20, 2019 but were not serving any term of
confinement for such offenses on March 20, 2019. He contends there is no rational basis
for excluding such persons from the violent offender database enrollment and registry
requirements that Sierah’s Law imposes. (Brief of Appellant at 13.) We disagree.
{¶ 25} In [CITATION], the Supreme Court found that “[b]y establishing a violent-
offender database that is accessible only by law enforcement and not by the broader
community, Sierah’s Law evinces the public-safety purpose to collect information about
violent offenders and facilitate its being shared with investigative authorities at the federal,
state, and local levels.” [CITATION] at ¶ 32. The legitimate state interest of the violent
offender registry is to provide a tool to law enforcement and protect the public from harm,
and it serves that purpose even though it does not include every single person who has ever
been convicted for an offense that would qualify them for violent-offender classification
under R.C. 2903.41(A)(1).
{¶ 26} Mr. Worrell’s argument—that “[t]here can be no rational basis [to permit an
entire class of convicted criminals to avoid registering with the violent offender database]
when the alleged purpose is to have this list of dangerous people to aid law enforcement”—
is myopic for two key reasons. (See Brief of Appellant at 13.) First, he ignores that a violent
offender’s registry duties generally end after ten years. See R.C. 2903.42(A)(1). In other
words, the legislature did not intend to create a comprehensive list of all “dangerous
people,” as Mr. Worrell suggests. Second, Mr. Worrell fails to address the notice-based
rationale suggested by the state and accepted by the trial court. (See Brief of Appellee at
20-23; Decision and Entry at 4.) Importantly, a person classified as a “violent offender” by
R.C. 2903.41(A) has no obligation to enroll in the violent offender database unless they are
appropriately notified in accordance with R.C. 2903.42(A)(1). We thus agree with the trial
court’s assessment that it is rational to apply Sierah’s Law only to those offenders situated
in positions—i.e., before a sentencing court or while they are serving a term of
confinement—where it is possible to ensure and verify that the statutorily required notice
is received. (See Decision and Entry at 4.) Indeed, the state has a legitimate governmental
interest in enacting laws that take into account the due process rights of its citizens. No. 23AP-244
[SEGMENT 11]
{¶ 27} For these reasons, we find the violent offender database enrollment scheme
established by Sierah’s Law is rational and advances the legitimate state interest of
protecting the public and safeguarding the notice requirements of the statute and due
process. Accordingly, Mr. Worrell’s equal protection claim lacks merit.
{¶ 28} In light of the foregoing, we conclude the trial court did not err in denying
Mr. Worrell’s motion for exclusion from the violent offender database registry
requirements imposed upon him by Sierah’s Law. As such, his second assignment of error
is overruled.
III. CONCLUSION
{¶ 29} Having overruled Mr. Worrell’s two assignments of error, we affirm the
March 20, 2023 judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and BOGGS, JJ., concur. Sure, please provide the part of the court ruling you would like processed, and I'll handle the court ruling citations accordingly.
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
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### Target Case:
[Cite as State v. Enyart, 2023-Ohio-3373.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 22AP-645
v. : (C.P.C. No. 07CR-9135)
Richard E. Enyart, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 21, 2023
On brief: [Janet Grubb, First Assistant Prosecuting
Attorney], and Darren M. Burgess for appellee. Argued:
Darren M. Burgess.
On brief: The Law Office of Eric J. Allen, Ltd., and Eric J.
Allen for appellant. Argued: Eric J. Allen.
APPEAL from the Franklin County Court of Common Pleas
EDELSTEIN, J.
{¶ 1} Defendant-appellant, Richard E. Enyart, appeals from the October 13, 2022
judgment of the Franklin County Court of Common Pleas denying his second motion to
withdraw his no contest plea. Because we find the trial court erred in concluding it lacked
jurisdiction to consider that motion, we reverse its judgment and remand this matter to the
trial court for further proceedings consistent with this decision.
I. FACTS AND PROCEDURAL OVERVIEW
{¶ 2} In 2007, plaintiff-appellee, the State of Ohio, charged Mr. Enyart with
numerous sexually oriented felony offenses involving multiple minors and a single count of
tampering with evidence in two different case numbers. He was charged with 39 counts in
No. 22AP-645 2
case No. 07CR-6170 on August 24, 2007 (the “first case”) and 34 additional counts in case
No. 07CR-9135 on December 21, 2007 (the “second case”).
{¶ 3} We need not belabor the nature of these offenses, as it is not relevant to the
issues before us in this case. Suffice it to say that the facts supporting these charges came
to light on August 11, 2007, when minor children living in Mr. Enyart’s neighborhood
discovered they were being surreptitiously recorded in Mr. Enyart’s bathroom after
swimming in his pool. Their mother called the police, and officers from the Columbus
Police Department (“CPD”) responded to investigate. To mitigate against the destruction
of evidence, officers entered Mr. Enyart’s home without a warrant and detained him,
claiming exigency, until a search warrant could be obtained. During its execution, officers
seized, among other things, incriminating videos of Mr. Enyart engaging in sexual acts with
minor children, which resulted in his arrest. The general facts and procedural history
preceding the matter before us are further laid out in State v. Enyart, 10th Dist. No. 08AP-
184, 2008-Ohio-6418 (“Enyart I”), State v. Enyart, 10th Dist. No. 08AP-184, 2010-Ohio-
5623 (“Enyart II”), and State v. Enyart, 10th Dist. No. 17AP-507, 2018-Ohio-1071 (“Enyart
III”).
{¶ 4} In November 2007, Mr. Enyart filed three motions to suppress. As we
explained in Enyart II:
The first sought to suppress any evidence derived from the
initial warrantless entry into [Mr. Enyart’s] residence. [Mr.
Enyart] argued that because no exigent circumstances justified
the officers’ entry into the home, they violated [Mr. Enyart’s]
Fourth Amendment rights. The second motion sought to
suppress [Mr. Enyart’s] statements made to police following
his second arrest. [Mr. Enyart] asserted police elicited those
statements in violation of [his] Fifth Amendment rights under
Miranda v. Arizona (1966), 384 U.S. 436 * * * and Edwards v.
Arizona (1981), 451 U.S. 477 * * *. (R. 25.) The third motion
sought to suppress the evidence taken from [Mr. Enyart’s]
home; it alleged police had no probable cause to support the
unconstitutionally overbroad search warrant. (R. 28.)
Id. at ¶ 12. On January 3, 2008, the trial court held a full evidentiary hearing on Mr.
Enyart’s three motions. The state called five CPD law enforcement officers to testify about
their collection of evidence and interview of Mr. Enyart. At the conclusion of that hearing,
No. 22AP-645 3
the trial court announced from the bench its denial of all three motions. (Jan. 3, 2008 Tr.
at 76-80, 177-84.)
{¶ 5} On February 4, 2008, Mr. Enyart pled no contest to 19 counts in case No.
07CR-6170 and the state requested a nolle prosequi on the remaining 20 counts. Enyart I
at ¶ 5. He also entered a no contest plea to all 34 counts charged in case No. 07CR-9135.
See id. The trial court immediately proceeded to sentencing in both cases. Pursuant to Mr.
Enyart’s no contest pleas, the trial court found Mr. Enyart guilty on all 53 charges and
imposed maximum, consecutive prison sentences. Enyart II at ¶ 13; Enyart I at ¶ 14.
A. Prior Post-Sentence Proceedings
{¶ 6} On direct appeal, Mr. Enyart contended that his no contest pleas in both cases
were involuntary and argued the trial court failed to comply with Crim.R. 11 in accepting
them. See Enyart I. We overruled his single assignment of error and affirmed his
convictions. However, in 2009, we granted Mr. Enyart’s application to reopen his appeal
based on a claim of ineffective assistance of appellate counsel. See Enyart II at ¶ 14.
Although Mr. Enyart alleged numerous potential errors, we agreed to consider just one in
that case: “appellate counsel’s failure to assign as error the trial court’s decision denying
[Mr. Enyart’s] motion to suppress evidence from the warrantless entry to his home.” Id.
Ultimately, we overruled that assigned error because we found the trial court properly
denied Mr. Enyart’s motion to suppress evidence taken from his home. See id. at ¶ 43.
{¶ 7} In April 2017, Mr. Enyart filed his first motion to withdraw his no contest plea
pursuant to Crim.R. 32.1. In support, he claimed to have recently discovered evidence
proving that “police illegally searched his home hours before they served [him] with the
search warrant.” Enyart III at ¶ 5. We summarized his contentions as follows:
Specifically, [Mr. Enyart] claims a photograph of a clock inside
his home taken by police during the search shows the time as
7:40 p.m., but police did not serve the warrant until 8:30 p.m.
According to [Mr. Enyart], this newly discovered evidence
shows the trial court erred when it denied his motion to
suppress the evidence uncovered in the search of his home in
2007, and his subsequent conviction on his no contest plea was
a manifest injustice.
Enyart III at ¶ 5. Mr. Enyart thus accused the officers who testified at his January 2008
suppression hearing of perjuring themselves. (See Apr. 9, 2017 Mot. to Withdraw at 17-19.)
No. 22AP-645 4
{¶ 8} After the trial court denied his first motion to withdraw his no contest plea in
June 2017, Mr. Enyart appealed from that judgment to this court in Enyart III. On review,
we found that because Crim.R. 32.1 does not vest jurisdiction in a trial court to maintain
and determine a motion to withdraw a plea subsequent to an appeal and an affirmance by
the appellate court—which occurred in this case—the trial court did not have jurisdiction to
entertain Mr. Enyart’s 2017 motion to withdraw his no contest plea. See Enyart III at ¶ 12-
18, applying State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio
St.2d 94 (1978) and State v. West, 10th Dist. No. 15AP-858, 2016-Ohio-7864. Accordingly,
we held the trial court did not err in denying Mr. Enyart’s motion to withdraw his no contest
plea, overruled his assignment of error, and affirmed the judgment. See id.
B. Procedural Posture Underlying this Appeal
{¶ 9} At issue in this case is the trial court’s denial of Mr. Enyart’s second motion
to withdraw his no contest plea.
{¶ 10} On May 3, 2022, Mr. Enyart filed a second motion to withdraw his no contest
plea pursuant to Crim.R. 32.1. Like his 2017 motion, the focus of this second motion was
the manner in which evidence was obtained from his home. As to that issue, the trial court
found in 2008 that exigent circumstances supported the officers’ warrantless entry into Mr.
Enyart’s home (Tr. at 180-83), and we affirmed that finding in Enyart II. See Enyart II at
¶ 17-28.
{¶ 11} In his 2022 motion to withdraw his no contest plea, Mr. Enyart accused the
trial prosecutor and/or CPD of withholding “large parts of the police file” to “influence the
outcome of the suppression hearing.” (May 3, 2022 Mot. to Withdraw Plea at 2-3, 12, 15-
24.) On the one hand, Mr. Enyart claimed the trial prosecutor failed to produce “the
entirety of its file” to defense counsel before the January 2008 suppression hearing. (Id. at
12. See also id. at 14.) On the other, he conceded he does not actually know what materials
his trial counsel received from the state because his trial counsel has never given him a copy
of the trial discovery. (See id. at 12-14.) Mr. Enyart only recently obtained “the entire case
file,” he explained, “[a]s part of a civil settlement” and through a public records request.
(See id. at 2, 12-13.)
{¶ 12} Just as he did in 2017, Mr. Enyart again premised his 2022 motion to
withdraw his no contest plea on evidence contained in the CPD’s file, which he
No. 22AP-645 5
characterized as newly discovered evidence. (May 3, 2022 Mot. to Withdraw Plea at 12-24.)
And, once again, Mr. Enyart accused the officers who testified at the 2008 suppression
hearing of perjury and committing fraud on the court. (See, e.g., id. at 12-13, 21.) The focus
of his argument in the 2022 motion, and now on appeal, is the timing preceding the officers’
warrantless entry into his home on August 11, 2007. Mr. Enyart proposes that the “newly
discovered” evidence tendered with his 2022 motion supports his claim that the officers
arrived at the scene hours before the time they testified to arriving during the suppression
hearing. (Id. at 13, 21-22.) And he presumes that, had the trial court been told the officers
arrived at the scene hours earlier, it would have found exigent circumstances did not justify
the officers’ warrantless entry into Mr. Enyart’s home and granted his suppression motion.
(See, e.g., id. at 13-23.) For this reason, Mr. Enyart believes he should be permitted to
withdraw his no contest plea more than 15 years after it was entered and he was sentenced.
{¶ 13} On October 13, 2022, the trial court issued a judgment entry denying Mr.
Enyart’s second motion to withdraw his no contest pleas. Relying on this court’s holding
in Enyart III, the trial court found it lacked jurisdiction to consider Mr. Enyart’s motion.1
{¶ 14} Mr. Enyart timely appealed from that judgment and asserts the following two
assignments of error for our review:
[I.] THE TRIAL COURT ERRED IN DENYING [MR. ENYART’S]
MOTION TO WITHDRAW [PLEA].
[II.] THE JUDG[]MENT IS VOID BECAUSE IT IS BASED UPON
FRAUD.
II. ANALYSIS
A. First Assignment of Error
{¶ 15} In his first assignment of error, Mr. Enyart argues the trial court erred in
denying his post-sentence motion to withdraw his no contest plea.
1. Applicable Law and Standard of Review
{¶ 16} Under Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed.” However, even after a sentence has been
1 The trial court also granted the state’s motion to strike and ordered Mr. Enyart’s June 29, 2022 reply and
affidavit be stricken from the record. Mr. Enyart does not attribute error to that ruling on appeal, so we will
not address it.
No. 22AP-645 6
imposed, a trial court “may set aside the judgment of conviction and permit the defendant
to withdraw his or her plea” if it finds such action is necessary “to correct manifest
injustice.” See Crim.R. 32.1. See also Enyart III at ¶ 9.
{¶ 17} “Manifest injustice” is defined as a “ ‘fundamental flaw in the proceedings
which result[s] in a miscarriage of justice or is inconsistent with the demands of due
process.’ ” State v. Lowe, 10th Dist. No. 14AP-481, 2015-Ohio-382, ¶ 6, quoting State v.
Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. “It has also been defined as ‘a
clear or openly unjust act,’ which exists only in extraordinary cases.” State v Cottrell, 8th
Dist. No. 95053, 2010-Ohio-5254, ¶ 15, citing State v. Owens, 8th Dist. No. 94152, 2010-
Ohio-3881, citing State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208 (1998).
{¶ 18} Accordingly, a post-sentence withdrawal of a guilty or no contest plea is
permissible only in extraordinary cases under the manifest injustice standard. State v.
Honaker, 10th Dist. No. 04AP-146, 2004-Ohio-6256, ¶ 7, citing State v. Smith, 49 Ohio
St.2d 261, 264 (1977). “And generally, res judicata bars a defendant from raising claims in
a Crim.R. 32.1 post-sentencing motion to withdraw a guilty plea that he raised or could have
raised on direct appeal.” State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, ¶ 15, citing
State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59.
{¶ 19} We review a trial court’s denial of a post-sentence motion to withdraw a guilty
or no contest plea under the abuse of discretion standard. Straley at ¶ 15, citing Smith at
paragraph two of the syllabus, and State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894,
¶ 32. We address questions of law, however, under a de novo standard of review. See, e.g.,
Enyart III at ¶ 11. Whether a trial court has subject-matter jurisdiction to entertain a post-
sentence motion to withdraw a no contest plea is a question of law. See id.
2. Analysis
{¶ 20} In this appeal, the parties focus their arguments on the import of our 2018
decision in Enyart III. In that case, we disregarded the parties’ abuse of discretion
arguments regarding the trial court’s denial of Mr. Enyart’s 2017 motion to withdraw his
no contest plea and instead considered, sua sponte, whether the trial court had subject-
matter jurisdiction to entertain a motion to withdraw pursuant to Crim.R. 32.1. See Enyart
III at ¶ 11-12. Relying on the holding of Special Prosecutors, we held it did not. Id. at ¶ 13-
17.
No. 22AP-645 7
{¶ 21} Thus, when Mr. Enyart filed his second post-sentence motion to withdraw his
no contest plea in 2022, the trial court reasonably relied on Enyart III to conclude it lacked
subject-matter jurisdiction to entertain that motion. (Oct. 13, 2022 Decision and Entry at
3-4.) And, of note, Mr. Enyart did not provide the trial court with any binding legal
authority that postdates Enyart III to explain why our reasoning in Enyart III would not
dictate that conclusion. In opposing Mr. Enyart’s 2022 motion, the state generally relied
on res judicata and the law of the case doctrine to argue his motion should be denied. The
state also contended that Mr. Enyart’s claim of newly discovered evidence was
unsubstantiated. On appeal, the state makes the same arguments.
{¶ 22} It is a well-settled principle of appellate law that appellate courts will not
make legal arguments for an appellant. See, e.g., Gianetti v. Teakwood, Ltd., 10th Dist. No.
15AP-413, 2016-Ohio-213, ¶ 30. At the same time, it is axiomatic that we perpetuate legally
sound decisions by applying the correct controlling precedent. See, e.g., Cardon v.
Northwest Airlines, Inc., 6th Dist. No. L 89-215, 1990 Ohio App. LEXIS 1349, *4 (Apr. 6,
1990), citing Mead v. McGraw, 19 Ohio St. 55, 62 (1869) (“If a statement of law is incorrect,
a court should not forbear to correct the error on the principal of stare decisis, but should
right the wrong at the earliest opportunity.”). This case, as presented, brings these two
cornerstones of our role as an appellate court into conflict.
{¶ 23} Our decision in Enyart III was premised on the Supreme Court of Ohio’s
unambiguous holding in Special Prosecutors that “Crim. R. 32.1 does not vest jurisdiction
in the trial court to maintain and determine a motion to withdraw the guilty plea
subsequent to an appeal and an affirmance by the appellate court.” Special Prosecutors,
55 Ohio St.2d at 97. Thus, Special Prosecutors held that a trial court cannot “vacate a
judgment which has been affirmed by the appellate court, for this action would affect the
decision of the reviewing court, which is not within the power of the trial court to do.” Id.
at 98.
{¶ 24} Since Special Prosecutors was decided, however, the Supreme Court has
reversed course. First, in 2011, the court elaborated on Special Prosecutors as follows:
We take this opportunity to specify that the holding in Special
Prosecutors does not bar the trial court’s jurisdiction over
posttrial motions permitted by the Ohio Rules of Criminal
Procedure [after an appeal and affirmance of conviction].
These motions provide a safety net for defendants who have
No. 22AP-645 8
reasonable grounds to challenge their convictions and
sentences. The trial court acts as the gatekeeper for these
motions and, using its discretion, can limit the litigation to
viable claims only.
State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, ¶ 37. See also State v. Walton, 8th Dist.
No. 112235, 2023-Ohio-2879, ¶ 19.
{¶ 25} Second, in 2020—two years after we decided Enyart III— the Supreme Court
further clarified and limited the holding of Special Prosecutors in State ex rel. Davis v.
Janas, 160 Ohio St.3d 187, 2020-Ohio-1462. After describing Special Prosecutors as
setting forth the general rule that a trial court “loses jurisdiction to modify its judgment
once [it] has been affirmed on [direct] appeal[,]” the Janas court emphasized that Special
Prosecutors does not apply to motions filed under the criminal rules or permitted by
statute. See Janas at ¶ 11, citing Davis at ¶ 37. And, pointedly, the Janas decision
specifically identified a Crim.R. 32.1 motion to withdraw a guilty or no contest plea as a
vehicle for seeking postconviction relief from a final judgment. Janas at ¶ 11, fn. 3. See also
State v. Brown, 8th Dist. No. 112027, 2023-Ohio-2064, ¶ 8-10; Walton at ¶ 20.
{¶ 26} As a result, Special Prosecutors can no longer be construed as divesting a trial
court of its continuing jurisdiction over post-sentence motions that are permitted by the
Ohio Rules of Criminal Procedure or Ohio law. See Janas at ¶ 11; Brown at ¶ 8-10; Walton
at ¶ 19-22. Contrary to our holding in Enyart III, then, we hold that Special Prosecutors
no longer applies to post-sentence motions to withdraw a guilty or no contest plea filed
pursuant to Crim.R. 32.1. We recognize this court has previously held otherwise, even after
Janas was decided. See, e.g., State v. Davic, 10th Dist. No. 19AP-579, 2021-Ohio-131
(finding trial court lacked jurisdiction over appellant’s motion to withdraw his guilty plea
without acknowledging or considering Janas). However, we cannot, in good conscience
and in light of Janas, continue to adhere—or issue precedent that binds trial courts to
adhere—to Special Prosecutors in disposing of any postconviction motions authorized by
statute or the criminal rules on jurisdictional grounds.2
2 We believe our decision to overrule this court’s prior precedent is constitutionally prudent. In some
instances, categorically prohibiting a criminal defendant from challenging the propriety of his guilty or no
contest plea—even after he has been sentenced and his conviction has been affirmed on direct appeal—would
run afoul of the constitutional principles and precedent that undergird our criminal justice system. For
instance, the United States Supreme Court has held that the Sixth Amendment to the United States
Constitution requires an attorney for a criminal defendant to provide accurate advice about the risk of
deportation arising from a guilty plea. See Padilla v. Kentucky, 559 U.S. 356 (2010); Lee v. United States, 582
No. 22AP-645 9
{¶ 27} Here, the trial court’s denial of Mr. Enyart’s motion to withdraw his no
contest plea was based solely on its determination that, pursuant to Enyart III and Special
Prosecutors, it lacked jurisdiction to consider it. Therefore, the trial court did not consider
the merits of the motion before it. As an appellate court, we do not consider arguments that
the trial court did not address. See, e.g., Young v. Univ. of Akron, 10th Dist. No. 06AP-
1022, 2007-Ohio-4663, ¶ 22; Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360 (1992).
{¶ 28} Based on the foregoing, we find the trial court did have jurisdiction to
consider the merits of Mr. Enyart’s motion to withdraw his plea. For this reason, Mr.
Enyart’s first assignment of error is sustained.
B. Second Assignment of Error
{¶ 29} In his second assignment of error, Mr. Enyart argues the judgment is void
because he claims it is based on fraud. Because our resolution of the first assignment of
error is dispositive, however, Mr. Enyart’s second assignment of error is moot, and we
overrule it on that basis. See App.R. 12(A)(1)(c).
III. CONCLUSION
{¶ 30} Having sustained Mr. Enyart’s first assignment of error, and overruled his
second assignment of error as moot, we reverse the October 13, 2022 judgment of the
Franklin County Court of Common Pleas and remand this matter to the trial court for
further proceedings consistent with this decision.
Judgment reversed and cause remanded.
MENTEL and BOGGS, JJ., concur.
U.S. 357 (2017); State v. Romero, 156 Ohio St.3d 468, 2019-Ohio-1839. In the absence of such advice, a
criminal defendant may seek to withdraw their guilty plea by alleging ineffective assistance of counsel.
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"1",
"2",
"3",
"6",
"7",
"8",
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]
Law
9841146
[SEGMENT 1]
2024 IL App (4th) 240200-U
NOTICE FILED
This Order was filed under Su- August 6, 2024
NOS. 5-24-0200, 5-24-0202 cons.
preme Court Rule 23 and is not Carla Bender
precedent except in the limited
IN THE APPELLATE COURT
th District Appellate
circumstances allowed under Court, IL
Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
RYAN J. MAHONEY, Individually and on Behalf of ) Appeal from the
Cates Mahoney, LLC, ) Circuit Court of
Plaintiff-Appellant and Cross-Appellee, ) Madison County
v. ) No. 22LA1440
DAVID I. CATES and THE CATES LAW FIRM, )
LLC, ) Honorable
Defendants-Appellees and Cross- ) Sarah Danielle Smith,
Appellants. ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice Cavanagh and Justice Lannerd concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed in part and reversed in part the judgment of the trial
court because (1) the separation agreement was a distinct agreement that did not
contain its own arbitration provision or incorporate the operating agreement’s
arbitration provision and (2) plaintiff’s claims fell outside the scope of the
arbitration provision.
¶2 In January 2013, plaintiff, Ryan Mahoney, and defendant, David Cates, formed the
law firm Cates Mahoney, LLC (“Cates Mahoney” or “the firm”), and executed an operating
agreement that would govern the firm’s operations. In March 2022, Cates, as majority member,
unilaterally dissolved Cates Mahoney, initiating a wind-up period for the firm. During that period,
Mahoney and Cates negotiated a separation agreement, which they executed in August 2022.
¶3 Shortly after executing the separation agreement, Mahoney discovered that, prior
to the execution of the separation agreement, Cates had mediated and settled two of the firm’s
cases, which generated approximately $9.5 million in fees. As a result, in November 2022, Mahoney filed a five-count complaint, individually and on behalf of Cates Mahoney, against Cates
and his new law firm, The Cates Law Firm, LLC, alleging breach of fiduciary duty and fraud
during (1) the dissolution and wind-up of Cates Mahoney and (2) negotiation of the separation
agreement, as well as breach of the separation agreement.
¶4 In January 2023, Cates filed a motion to dismiss and compel arbitration, arguing
that the claims were subject to the arbitration provision contained in the operating agreement.
Mahoney responded that the claims were not subject to arbitration because they arose from the
separation agreement, which did not contain an arbitration provision. The trial court granted in
part and denied in part Cates’s motion, finding that two of the five claims were arbitrable while
the remaining three claims were not.
¶5 Mahoney appeals, arguing that the trial court erred by finding any of the claims
were arbitrable because (1) the express language of the operating agreement’s arbitration provision
limits the scope of that provision to claims that can be determined solely in accordance with the
terms of the operating agreement, whereas Mahoney’s claims require determination under the
terms of the separation agreement, and (2) the separation agreement does not contain its own
arbitration provision or incorporate, modify, or expand the arbitration provision in the operating
agreement.
¶6 Cates cross-appeals, arguing that the trial court erred by finding any of the claims
were not arbitrable because (1) the parties entered into a valid agreement to arbitrate any
controversies arising out of or relating to the operating agreement and (2) the parties incorporated
the arbitration provision into the separation agreement.
¶7 We agree with Mahoney that none of his claims were subject to arbitration and,
accordingly, affirm in part and reverse in part the trial court’s judgment.
¶8 I. BACKGROUND
¶9 At the outset, we note that this case originated in the Fifth District of the Illinois
Appellate Court but was assigned by the Illinois Supreme Court to this court for resolution.
¶ 10 A. The Complaint
¶ 11 In November 2022, Mahoney filed a five-count complaint against Cates asserting
claims of breach of fiduciary duty, fraud, and breach of contract arising from (1) the dissolution
and winding-up of Cates Mahoney and (2) the negotiation and execution of the parties’ separation
agreement. The complaint specifically alleged the following.
¶ 12
. Allegations Regarding the Founding of Cates Mahoney
¶ 13 In January 2013, Mahoney and Cates founded the law firm of Cates Mahoney and
practiced law together pursuant to the firm’s operating agreement. Cates was the managing
member and owned a 60% interest in the firm, whereas Mahoney owned a 40% interest in the firm.
¶ 14 Under the terms of the operating agreement, profits up to $400,000 would be split
50-50 between Cates and Mahoney, while profits over $400,000 would be split 60-40 between
Cates and Mahoney, respectively. The operating agreement also contained a provision for the
division of profits for cases resolved after dissolution, directing that the originating member would
receive one-third of the profits and the remaining two-thirds would be divided on a quantum meruit
basis in proportion to the work performed on the case by each member.
¶ 15 The operating agreement also provided that each member promised to “cooperate
in every regard in the winding up of the Firm affairs.”
¶ 16
. Allegations Concerning the Blue Cross and Macia Cases
¶ 17 In October 2015, Cates Mahoney filed a complaint on behalf of a client in a case
identified as Blue Cross. In November 2020, Cates took a leave of absence from the firm, during
which time Mahoney “oversaw and ran all of [Cates Mahoney’s] cases and operations, including
Blue Cross.” Mahoney spent substantial time litigating Blue Cross, including appearing in court,
participating in phone conferences, and addressing discovery disputes. Even after Cates returned
in January 2021, Mahoney continued to work on Blue Cross. In February 2021, the parties agreed
to engage in mediation. Mahoney worked on the draft mediation statement, while Cates
participated in the mediation. During the mediation, Cates provided Mahoney with updates of the
parties’ respective settlement positions. In November 2021, Mahoney stopped receiving
correspondence or notices of the weekly calls in Blue Cross.
¶ 18 In 2014, Cates Mahoney (with co-counsel) filed a class action counterclaim in a
case identified as [CITATION]. In May 2022, the trial court in [CITATION] entered a sanctions order assessing
a $4000 per day sanction and awarding Cates Mahoney and its co-counsel reasonable costs and
fees incurred in preparing and prosecuting five discovery motions. Later in May 2022, co-counsel
e-mailed opposing counsel, copying Cates, stating that he was agreeable to participating in
mediation under the condition that plaintiffs’ counsel would not negotiate the sanctions award,
which, at that time, totaled $676,000 and was still accruing. Cates failed to disclose to Mahoney
(1) the e-mail, (2) the amount of the sanctions award, or (3) the fact that the firm remained entitled
to the sanctions award.
¶ 19 On May 25, 2022, without Mahoney’s knowledge, the Blue Cross parties conducted
a second mediation, which did not appear on the firm’s “joint calendar” or “daily reminder.” Cates
Mahoney maintained the joint calendar for all attorneys at the firm, and the daily reminder was an
e-mail to all attorneys and staff listing the following day’s calendared items. Cates participated in
the mediation, at which the parties reached an agreement to settle Blue Cross. Cates never told
Mahoney about the second mediation, including the agreement to settle Blue Cross.
¶ 20 On May 26, 2022, opposing counsel in Macia sent an e-mail to Cates Mahoney’s
co-counsel, copying Cates, that contained a settlement offer proposing that the defendants would
pay “[$]1.5 million to the lawyers for fees/costs,” including the “sanction issue.” Opposing counsel
also agreed that the defendants would pay for the costs associated with a second mediation, to be
scheduled for June 20, 2022. Cates did not disclose to Mahoney the Macia settlement offer.
¶ 21
. Allegations Regarding the Dissolution and Winding-Up Period
¶ 22 On May 27, 2022, Cates, as majority owner, unilaterally dissolved the Cates
Mahoney law firm. Thereafter, Cates and Mahoney began negotiating a separation agreement. On
May 31, 2022, Cates provided Mahoney with a list of all pending Cates Mahoney cases. The list
“did not reveal the Mediation or agreement to settle Blue Cross or the pending [CITATION]
Sanctions Award.”
[SEGMENT 2]
¶ 23 On June 2, 2022, Cates and Mahoney met to review the firm’s pending cases,
including (1) the division of such cases, (2) cases that had settled or were close to settling,
(3) anticipated funds pursuant to settlements, and (4) the distribution of Cates Mahoney funds.
During that meeting, Cates did not disclose to Mahoney the mediation or agreement to settle Blue
Cross or the [CITATION] settlement proposal or sanctions award.
¶ 24 On June 20, 2022, Cates participated in an all-day mediation of [CITATION], which
resulted in a settlement.
¶ 25 On June 23, 2022, without Mahoney’s knowledge, Cates filed a motion in Blue
Cross substituting his new firm, Cates Law, for Cates Mahoney. Around that same time, Mahoney
asked Cates if [CITATION] had settled at the June 20, 2022, mediation, and Cates responded that it had
not.
¶ 26 On June 30, 2022, Mahoney asked Cates to provide the most recent settlement
proposal in Macia. Cates responded that he had nothing and was still “waiting on the defendants
to send us a proposal.” In that same communication, Mahoney asked if there were any other cases
“where settlements are pending or agreed in principle.” Cates again did not disclose the Blue Cross
mediation and also did not include either Blue Cross or Macia among the cases with pending
settlements. Cates also stated (1) “we do not have an agreement on the meaning of the term
‘resolved’ in the operating agreement” and (2) he “[did] not agree that any case that was ‘settled’
or ‘settled in principle’ prior to May 27 is considered ‘resolved’ under the [operating agreement].”
¶ 27 Also on June 30, 2022, Mahoney reviewed the Blue Cross file to confirm whether
a settlement or settlement-in-principle had been reached. The file contained only documents
relating to the February 2021 mediation and contained no mention of the May 2022 mediation.
¶ 28 On July 19, 2022, while still negotiating a separation agreement with Mahoney,
Cates executed on behalf of his new firm, Cates Law, a settlement agreement in Macia, providing
for approximately $4 million in fees to be paid to Cates Law and co-counsel.
¶ 29 On July 29, 2022, without Mahoney’s knowledge, Cates executed on behalf of
Cates Law the settlement agreement in Blue Cross, which stated, “At the conclusion of the [May
25, 2022,] mediation, the parties reached an agreement in principle to resolve [CITATION].”
¶ 30 On August 2, 2022, Cates filed a motion to approve the Blue Cross settlement,
which requested, for Cates Law, approximately $7.45 million in attorney fees and costs and
represented that plaintiffs’ counsel, “including Cates Law” spent “nearly seven years” working on
[CITATION]. The approval motion made no mention of Cates Mahoney even though Cates Law had
been substituted into the case only six weeks earlier. On August 3, 2022, the motion for approval
was granted.
¶ 31
. Allegations Regarding the Separation Agreement
¶ 32 On August 19, 2022, Cates and Mahoney executed the separation agreement that
they had been negotiating. At the time of the execution, Mahoney had no idea of (1) the Blue Cross
mediation, (2) the settlements in [CITATION], or (3) the sanctions award in [CITATION].
¶ 33 The separation agreement provided that “[the proceeds from] any case resolved
prior to dissolution on May 27, 2022, are assets of [Cates Mahoney] and subject to fee sharing of
the Members in accordance with [the operating agreement].” The separation agreement also
defined “resolved” to mean “where a release or settlement agreement has been agreed to and/or
signed by the parties and/or if court approval is required under the law and there are any legitimate
objections to the approval, then after a court has approved the settlement.”
¶ 34 Cates included [CITATION] on Schedule A of the separation agreement and
warranted that “none of the cases identified in Schedule A of this Agreement had resolved prior to
May 27, 2022.”
¶ 35 On September 7, 2022, Mahoney received an e-mail from defense counsel in [CITATION]
advising him to destroy all documents in his possession relating to [CITATION] pursuant to
the trial court’s “final judgment on August 3, 2022.” The following day, Mahoney called defense
counsel and learned that on August 3, 2022—two weeks before Cates and Mahoney signed the
separation agreement—a final judgment in [CITATION] had been entered approving a settlement.
¶ 36 On September 12, 2022, Mahoney obtained from the courthouse copies of the [CITATION]
and [CITATION] filings that revealed the settlements in both matters, which generated a total of
over $9.4 million in fees to Cates and Cates Law that had not been disclosed to Mahoney.
¶ 37 The complaint alleged that the foregoing acts constituted breach of fiduciary duty
(counts I and II), constructive fraud (count III), actual fraud (count IV), and breach of the
separation agreement (count V).
¶ 38 B. Cates’s Motion To Dismiss and Compel Arbitration and Mahoney’s Response
¶ 39 In January 2023, Cates filed a motion to dismiss and compel arbitration, arguing
that Mahoney’s claims were subject to an arbitration provision contained within the operating
agreement. Cates asserted that the execution of the separation agreement did not change the
agreement to arbitrate because the separation agreement “[did] not modify or amend any Article
or Section of the Operating Agreement *** other than where specifically indicated,” and the parties
agreed that the Operating Agreement would “govern and control the Parties’ rights and obligations
with respect to dissolution of the Firm.”
¶ 40 In March 2023, Mahoney filed a written response arguing that, by its express terms,
the operating agreement’s arbitration provision did not apply to the separation agreement.
Specifically, Mahoney claimed that (1) in the operating agreement, the parties expressly limited
arbitration to controversies that could be determined “solely in accordance with the terms of [the
operating agreement]” and Illinois law governing limited liability corporations and (2) in the
separation agreement, the parties expressly chose not to (a) include any arbitration provision or
(b) modify or expand the scope of the operating agreement’s arbitration provision to reach claims
arising out of or relating to the separation agreement. Mahoney also pointed to a provision in the
separation agreement providing that, in the event of a conflict between the operating agreement
and the separation agreement, the terms of the separation agreement would prevail.
¶ 41 C. The Agreements
¶ 42 The parties attached copies of the operating agreement (executed January 1, 2013)
and separation agreement (executed August 19, 2022) to their pleadings.
¶ 43
. The Operating Agreement
¶ 44 The relevant portions of the operating agreement stated as follows:
“Section 10.07 Division of Attorney Fees for Cases Originated Prior to
Dissolution, but Which are Resolved after Dissolution. For any cases originating
prior to the dissolution of the Firm, but which are resolved after the dissolution of
the Firm, the Profits (or Shared Profits) for such cases will be divided amongst the
Members as follows:
***
For New Cases [(originating after January 1, 2013)]: The originating
Member of the matter shall receive 33 1/3% of the Profits. The remaining 66 2/3%
of the Profits shall be divided on a quantum meruit basis in proportion to the work
performed by each Member on the case. In the event the originating Member cannot
be discerned, and/or the case is defined as a Firm Case as set out in section 3.08,
the Profits will be divided in accordance with Section 3.04(B)(1).
***
Section 11.01 Arbitration. Any controversy arising out of or relating to this
Agreement [(the operating agreement)] shall be submitted to arbitration, and not
any Court or other adjudicating body. The controversy shall be determined by the
arbitrator solely in accordance with the terms of this Agreement, and Illinois law
applicable to limited liability companies. The arbitrator is to strictly enforce the
plain language of this Agreement.”
¶ 45
. The Separation Agreement
¶ 46 The relevant portions of the separation agreement stated as follows:
“WHEREAS, Cates made a Resolution to dissolve the Firm, and dissolved
the Firm on May 27, 2022 pursuant to the Operating Agreement for the Firm and
set the date for winding up the business for June 30, 2022; and
WHEREAS, the Parties desire to resolve their respective fee interests in all
cases of the Firm; and
WHEREAS, this Agreement does not modify or amend any Article or
Section of the Operating Agreement for the Firm other than where specifically
indicated herein, and unless indicated otherwise, the Operating Agreement shall
govern and control the Parties’ rights and obligations with respect to dissolution of
[SEGMENT 3]
the Firm.
***
. Quantum Meruit. Cates and Mahoney waive any claim to
quantum meruit in any of the cases retained by each Member of the Cates Mahoney
law firm.
***
. Cases Included as Assets of Cates Mahoney, LLC for Dissolution. The
fees and expense reimbursements for the cases identified in Schedule C to this
Agreement shall be included in the funds available for distribution to the Members
pursuant to Paragraph 11 [of the separation agreement]. The Parties acknowledge
that any case resolved prior to dissolution on May 27, 2022 are assets of the Firm
and subject to fee sharing of the Members in accordance with Article III of the
Operating Agreement. This list was generated and created in reliance on the
representations of each Member with respect to what cases had resolved prior to
dissolution on May 27, 2022. [(In a footnote to this provision, the separation
agreement defined the term “resolved” as set forth supra (¶ 33).]
- 10 - 9. David Cates’s Representations. Cates represents and warrants that ***
none of the cases identified in Schedule A of this Agreement had resolved prior to
May 27, 2022. Cates further acknowledges that Mahoney has relied on said
representations in entering into this Agreement and in accepting the payment
amount estimated in Paragraph 11 below.
***
. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Illinois.
. Severability. Should any part, term or provision of this Agreement be
declared and/or be determined by any court or arbitrator to be illegal or invalid, the
validity of the remaining parts, terms or provisions shall not be affected thereby,
and said illegal or invalid part, term or provision shall be deemed not to be a part
of this Agreement.
***
. Survival of Operating Agreement. As to any conflicts between the terms
of this Agreement and the Operating Agreement, the terms of this Agreement shall
prevail. Except as herein specifically amended, the Operating Agreement for the
Firm is affirmed and declared in full force.”
¶ 47 D. The Trial Court’s Ruling
¶ 48 In March 2023, the trial court conducted a hearing on Cates’s motion to dismiss
and compel arbitration and, in January 2024, issued a written ruling granting that motion in part.
¶ 49 The trial court first addressed “whether the terms of the arbitration provision in the
Operation Agreement apply to the subsequent Separation Agreement.” The court reasoned that,
- 11 - “While the Separation Agreement did not specifically mention the arbitration provision of the
Operating Agreement, the Severability paragraph *** references determination of invalidity ‘by
any court or arbitrator’ thereby seemingly acknowledging arbitration of the Separation Agreement
by both parties.” The court further found that the operating agreement and the separation
agreement “both concern the same subject matter, i.e., the business of operating and dissolving the
Cates Mahoney Law Firm.” On these bases, the court concluded that “the arbitration provision
covers the subsequent agreement.”
¶ 50 The trial court next addressed whether “the controversies and claims at issue and
raised in plaintiffs’ complaint fall within the scope of the arbitration provision.” The court found
that the operating agreement “specifies various issues that would be arbitrable,” particularly those
related to the “Duty of a Member” provision of the operating agreement relating to (1) transferring
firm assets and (2) tampering with information in client files. The court concluded that the
allegations in counts I (breach of fiduciary duty) and V (breach of contract) were “arbitrable
matters contemplated by the parties.”
¶ 51 The trial court further found that the remaining allegations “relate to fraudulent
allegations or fraudulent concealment,” and as such “do not arise out of or are related to the
operating agreement or the separation agreement.” The court reasoned, “The operating agreement
contained specific and detailed language as it relates to the Duty of a member during Dissolution.
However, both agreements are silent as it relates to issues of fraud or fraudulent concealment.” As
a result, the court concluded that counts II (breach of fiduciary duty), III (constructive fraud), and
IV (actual fraud) were not arbitrable.
¶ 52 This appeal followed.
¶ 53 II. ANALYSIS
- 12 - ¶ 54 Mahoney appeals, arguing that the trial court erred by finding any of the claims
were arbitrable because (1) the arbitration clause by its express terms applied only to claims that
could be determined solely in accordance with the terms of the operating agreement and (2) the
separation agreement did not modify, expand, or incorporate by reference the operating agreement
or its arbitration provision.
¶ 55 Cates cross-appeals, arguing that the trial court erred by finding any of the claims
were not arbitrable because (1) the parties entered into a valid agreement to arbitrate any
controversies arising out of or relating to the operating agreement and (2) the parties incorporated
the arbitration provision into the separation agreement.
¶ 56 We agree with Mahoney that none of his claims were subject to arbitration and,
accordingly, affirm in part and reverse in part the judgment of the trial court.
¶ 57 A. The Applicable Law
¶ 58 “A motion to compel arbitration is essentially a section 2-619(a)(9) [see 735 ILCS
5/2-619(a)(9) (West 2022))] motion to dismiss or stay an action in the trial court based on an
affirmative matter, the exclusive remedy of arbitration.” [CITATION]. “The party seeking to compel
arbitration has the burden to establish that the parties have a valid agreement to arbitrate and that
the controversy falls within the scope of the arbitration provision.” [CITATION].
¶ 59 An agreement to arbitrate is a matter of contract. [CITATION]. “The parties to an agreement are bound to
arbitrate only those issues which by clear language and their intentions expressed in the language
- 13 - show they have agreed to arbitrate.” [CITATION] ¶ 29. “In the absence of an ambiguity, the intention of the
parties at the time the contract was entered into must be ascertained by the language used in the
contract itself, not by the construction placed upon it by the parties.” [CITATION] ¶ 30. “Arbitration
agreements cannot be extended by construction or implication.” [CITATION] ¶ 29.
¶ 60 Review of an order granting or denying a motion to compel arbitration, when no
evidentiary hearing was conducted, is de novo. [CITATION], ¶ 31. When ruling on a
motion to dismiss and compel arbitration pursuant to section 2-619, the court must interpret all
pleadings and supporting documents in the light most favorable to the nonmoving party. [CITATION]
¶ 61 B. This Case
¶ 62
. The Arbitration Provision in the Operating Agreement
Was Not Incorporated Into the Separation Agreement
¶ 63 Here, citing [CITATION], the trial court concluded that the arbitration
provision in the operating agreement applied to the separation agreement because “both
[agreements] concern the same subject matter, i.e., the business of operating and dissolving the
Cates Mahoney Law Firm.” The court also pointed to the language in the severability clause of the
separation agreement that stated if “a court or arbitrator” found any provision invalid, that
provision could be severed as support for the court’s conclusion that the parties contemplated
arbitration of disputes arising from the separation agreement.
¶ 64 Mahoney argues that the trial court erred by (1) applying [CITATION] and (2) reasoning
that the mention of an arbitrator in the severability clause amounts to an agreement to arbitrate the
separation agreement. Mahoney further argues that the arbitration provision in the operating
- 14 - agreement does not apply to the separation agreement because the separation agreement is a
separate contract that did not (1) incorporate the operating agreement or arbitration provision by
reference or (2) expand or modify the operating agreement.
¶ 65 Cates responds that the parties did incorporate the arbitration provision into the
separation agreement by including language in that agreement that the parties (1) agreed that the
operating agreement would “govern and control the Parties’ rights and obligations with respect to
the dissolution of the Firm” and (2) declared the operating agreement “affirmed” and in “full
force.”
¶ 66 a. Nagle Is Inapposite
¶ 67 First, we agree with Mahoney that the trial court erred by relying on [CITATION] because
[CITATION] is factually distinguishable. [CITATION] involved what is termed a “generic arbitration clause.”
[CITATION], 244 Ill. App. 3d at 925. A “generic arbitration clause” is one that “provides that all claims
‘arising out of or relating to’ the agreement shall be settled in arbitration.” Id. (citing [CITATION]).
The arbitration clause in [CITATION] was contained in an employment agreement and stated that “Any controversy or claim arising out
of, or relating to this Agreement, or the breach thereof, shall be settled by arbitration.”
¶ 68 Unlike [CITATION], the present case does not involve a generic arbitration clause.
Although the arbitration provision in the operating agreement contains the “arising out of or
[SEGMENT 4]
relating to” language addressed in [CITATION], it further states that controversies shall be determined
“solely in accordance with the terms of [the operating agreement].” The latter language has the
effect of limiting the scope of the arbitration provision to those controversies arising from or
relating to the operating agreement that can be determined solely in accordance with the terms of
the operating agreement. As we explain in greater detail (infra ¶¶ 83-92), although Mahoney’s
- 15 - claims relate to the operating agreement, they cannot be determined without considering the terms
of the separation agreement, as well.
¶ 69 Because [CITATION] involved a generic arbitration clause while the present case involved
an arbitration clause with express limiting language, [CITATION] is inapposite. (Additionally, we note
that the [CITATION] court did not hold that the arbitration clause in the employment agreement also
applied to the subsequent stock redemption agreement between the parties, instead reserving that
question for an arbitrator because the record was unclear. [CITATION].)
¶ 70 b. The Language of the Separation Agreement
¶ 71 Because “[t]he parties to an agreement are bound to arbitrate only those issues
which by clear language and their intentions expressed in the language show they have agreed to
arbitrate,” our determination of whether the separation agreement incorporates the arbitration
provision in the operating agreement turns on the language of the separation agreement, which we
interpret using ordinary contract principles. [CITATION]. “[A] contract must be
construed as a whole, viewing each provision in light of the other provisions.” [CITATION]. “The parties’ intent is not determined by
viewing a clause or provision in isolation, or in looking at detached portions of the contract.”
[CITATION].
¶ 72 The relevant provisions of the separation agreement read as follows:
“WHEREAS, this Agreement does not modify or amend any Article or
Section of the Operating Agreement of the Firm other than where specifically
indicated herein, and unless indicated otherwise, the Operating Agreement shall
govern and control the Parties’ rights and obligations with respect to dissolution of
the Firm.
- 16 - ***
. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Illinois.
***
. Survival of Operating Agreement. As to any conflicts between the terms of this
Agreement and the Operating Agreement, the terms of this Agreement shall prevail.
Except as herein specifically amended, the Operating Agreement for the Firm is
affirmed and declared in full force.”
¶ 73 In support of Cates’s argument that the separation agreement incorporates the
operating agreement, including its arbitration provision, he points to the language in the separation
agreement (1) providing that the operating agreement would “govern and control the Parties’ rights
and obligations with respect to dissolution of the Firm” and (2) declaring the operating agreement
“affirmed” and “in full force.”
¶ 74 Mahoney, on the other hand, contends that the absence of language
(1) incorporating the arbitration provision or operating agreement by reference or (2) modifying
or expanding the scope of the arbitration provision to apply to the separation agreement
undermines Cate’s contention that the arbitration provision applied to the separation agreement.
¶ 75 Reading the relevant provisions as a whole, Cates has not demonstrated that the
parties incorporated the operating agreement or its arbitration provision into the separation
agreement. To the contrary, when read as a whole, the above provisions demonstrate that the
operating agreement and separation agreement are two distinct agreements. Specifically, the
separation agreement states that it (1) does not modify or amend the operating agreement and
(2) controls in the event of any conflict. These statements are a clear indication that the separation
- 17 - agreement is a separate contract. If the separation agreement was not its own distinct contract, it
would not need to (1) declare that the operating agreement remains in effect or (2) repeat the same
choice of law provision contained in the operating agreement. See [CITATION] (“Contractual terms should be
construed so as to avoid the conclusion that other terms are redundant.”).
¶ 76 Equally important to our analysis is what the separation agreement does not state.
The separation agreement does not include its own arbitration provision. Instead, the parties
included a choice of law provision stating that the separation agreement would be governed by the
laws of the State of Illinois. And the separation agreement does not state that it incorporates the
operating agreement or its arbitration provision by reference. Had the parties intended to arbitrate
disputes arising from or relating to the separation agreement, they could have easily included an
express arbitration provision or express incorporation by reference of the operating agreement or
its arbitration provision.
¶ 77 It is well established that “[a]rbitration agreements cannot be extended by
construction or implication.” [CITATION], ¶ 29. As Mahoney argued before the trial
court, “Everybody in this building [(the courthouse)] knows how to incorporate something by
reference.” We wholeheartedly agree and emphasize the point. The absence of an express
incorporation provision in a contract executed by two experienced attorneys is significant, and we
decline to infer an incorporation by reference where none exists.
¶ 78 For the same reason, we conclude that the trial court erred by ruling that the mention
of a “court or arbitrator” in the severability clause constitutes an agreement to arbitrate. The court’s
reasoning serves as a prime example of what Illinois law prohibits—extending an arbitration clause
by construction or implication. [CITATION], ¶ 29. The mention of an arbitrator in the
- 18 - severability clause falls far short of constituting an express agreement to arbitrate. We agree with
Mahoney that the reference to an arbitrator simply acknowledges the possibility that the parties, in
the future, might agree, independent of any contractual obligation, to arbitrate a dispute arising
under the separation agreement.
¶ 79 We also agree with Mahoney that the separation agreement does not modify the
operating agreement to expand the scope of its arbitration provision to cover disputes relating to
the separation agreement. Indeed, the separation agreement explicitly states that it does not modify
or amend the operating agreement at all except where expressly stated. The separation agreement
did not state anything about arbitration, much less expressly modify the arbitration provision in
the operating agreement. This shows an intent to not expand the scope of the arbitration agreement
to apply to the separation agreement.
¶ 80 As we have discussed, the express language of the arbitration provision limits its
scope to those controversies that can be determined solely in accordance with the terms of the
operating agreement. Because that limitation was not modified or expanded to include
controversies that can be determined in accordance with the terms of both the operating agreement
and separation agreement, the arbitration provision does not apply to the separation agreement.
¶ 81 For these reasons, the trial court erred by ruling that the arbitration provision in the
operating agreement applied to the separation agreement. We conclude that the separation
agreement is a distinct agreement that does not (1) contain its own arbitration agreement or
(2) incorporate by reference or modify or amend the arbitration provision in the operating
agreement to extend to the separation agreement.
¶ 82
. Mahoney’s Claims Fall Outside the Scope of the Arbitration Provision
in the Operating Agreement
- 19 - ¶ 83 Mahoney also argues that his claims fall outside the scope of the arbitration
provision of the operating agreement because the express language of the arbitration provision
limits its application to disputes that can be determined solely in accordance with the terms of the
operating agreement. Mahoney’s claims, he contends, must be determined, at least in part, in
accordance with the separation agreement, which, as we have determined, is a separate agreement.
¶ 84 Cates argues that all of Mahoney’s claims are arbitrable because the parties agreed
to arbitrate any controversies that “arise out of or relate to” the operating agreement. Cates asserts
that, without the operating agreement, Cates would owe no fiduciary duties to Mahoney, which
duties form a necessary part of each claim.
¶ 85 Although Cates is correct that the arbitration provision is broad and applies to all
disputes that “arise out of or relate to” the operating agreement, his argument ignores the limiting
language that immediately follows the generic phrase he relies upon. That language explicitly
narrows the scope of the arbitration provision to disputes that can be determined “solely in
accordance with the terms of the operating agreement.”
¶ 86 Cates contends that the “solely in accordance with” phrase is simply a direction to
the arbitrator concerning how the arbitrator is to resolve claims. Cates’s argument is unpersuasive
because regardless of how the phrase is characterized, we must still give it effect when construing
the scope of the arbitration provision because it is express language that the parties chose to include
in their contract. We agree with Mahoney that to accept Cates’s interpretation would require this
court to ignore the contractual language directing that controversies be determined solely in
accordance with the terms of the operating agreement. See [CITATION]. (“A court
will not interpret a contract in a manner that would nullify or render provisions meaningless, or in
a way that is contrary to the plain and obvious meaning of the language used.”); see also [CITATION] (“[W]hen
interpreting a contract, we must give effect to all of the contract’s provisions if it is possible to do
so.”).
¶ 87 Here, the resolution of each of Mahoney’s claims requires application of the terms
of both the operating agreement and the settlement agreement. For example, each of Mahoney’s
[SEGMENT 5]
claims alleges that Cates concealed from him the Blue Cross settlement, depriving Mahoney of his
rightful share of the approximate $7.45 million in fees. The express purpose of the separation
agreement was for the parties to “resolve their respective fee interests in all cases of the Firm.” To
determine whether Cates acted wrongfully and what amount, if any, of the Blue Cross fees
Mahoney was entitled to, an arbitrator would have to look to both the operating agreement and the
separation agreement.
¶ 88 If applying only the terms of the operating agreement, the Blue Cross settlement
would appear to fall under section 10.07 as a case originated prior to dissolution but resolved after
dissolution. Under the terms of section 10.07, the originating member would receive 33 1/3% of
the profits and the remaining 66 2/3% would be divided on a quantum meruit basis.
¶ 89 However, whether Blue Cross was resolved before or after dissolution is a material
question in this case—one that can only be determined by applying the definition of “resolved” in
the separation agreement. Mahoney alleged that the Blue Cross parties reached a settlement
agreement at the May 25, 2022, mediation. Yet, Cates warranted in the separation agreement that
Blue Cross was not resolved prior to dissolution, including it among his own “retained cases” listed
in Schedule A.
¶ 90 Pursuant to the separation agreement, Mahoney would receive (1) 1/3 of the profits
of Schedule A cases if he was the originating member, but waive his claim to any costs, or (2) “in
- 21 - lieu of the requirements of Section 10.07 of the Operating Agreement,” none of the profits of
Schedule A cases if the case was a “firm case” as defined in the operating agreement (as any case
where the originating member could not be discerned or that was obtained through the joint efforts
of the members). As to those Schedule A firm cases, the parties agreed that they had “reviewed
the estimated values” of those cases and waived any right they might have to a fee or costs. In
either case—whether a Mahoney-originated case or a firm case—under the separation agreement,
Mahoney waived his right to quantum meruit.
¶ 91 As the foregoing demonstrates, an arbitrator would have to apply the terms of both
the operating agreement and separation agreement to determine whether and in what amount
Mahoney was damaged. If the arbitrator applied only the terms of the operating agreement, his or
her damages calculation would be wrong.
¶ 92 We note in particular that the trial court found that counts I (breach of fiduciary
duty) and count V (breach of contract) were arbitrable because they “related to” subparagraphs
8(a), (c), (e), and (g) of the complaint—namely, Mahoney’s allegations that Cates (1) concealed
from Mahoney and omitted or removed from [CITATION] files any reference to the mediation
and settlement of Blue Cross, (2) substituted Cates Law as counsel in Blue Cross without
Mahoney’s knowledge, (3) appropriated for himself the $7.5 million fee from Blue Cross, and
(4) appropriated for himself and Cates Law the entirety of the $2 million fee and expense award
in Macia. The trial court is correct that these counts “relate to” those subparagraphs, but as we
have explained that is not where the analysis ends because whether Mahoney was damaged and
the extent to which he was damaged requires consideration of the terms of the separation
agreement as well as the operating agreement. Moreover, count V explicitly alleges breach of the
separation agreement. It would be impossible for an arbitrator to determine whether that agreement
- 22 - has been breached without considering its terms.
¶ 93 In closing, we reiterate that Cates, as the party seeking to compel arbitration, bears
the burden of demonstrating that (1) the parties entered into a valid agreement to arbitrate and
(2) the claims at issue fall within the scope of that agreement. [CITATION],
¶ 22. Moreover, we construe the pleadings and supporting documents in the light most favorable
to Mahoney as the nonmoving party. [CITATION]. Applying these principles, because
Cates’s arguments require us to (1) infer an agreement to arbitrate where none was expressly stated
or (2) ignore express contractual language, Cates has failed to meet his burden.
¶ 94 For these reasons, we conclude that the trial court erred by determining that counts
I and V fell within the scope of the arbitration provision of the operating agreement, and we reverse
the court’s judgment as to those counts. We affirm the court’s finding that counts II, III, and IV
fell outside the scope of the arbitration agreement, albeit for different reasons explained herein,
and we affirm the court’s judgment as to those counts.
¶ 95 Although we have disagreed in part with the trial court’s legal conclusion, we wish
to thank the court for its thoughtful and detailed written order that (1) thoroughly and succinctly
explained the background of this complicated dispute and (2) set forth in clear detail the court’s
analysis.
¶ 96 III. CONCLUSION
¶ 97 For the reasons stated, we conclude that none of Mahoney’s claims were subject to
arbitration. Accordingly, we (1) reverse the trial court’s judgment with respect to counts I and V
and (2) affirm the court’s judgment with respect to counts II, III, and IV.
¶ 98 Affirmed in part and reversed in part.
- 23 - ===== Part of a Court Ruling ======
===== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'clanton-v-oakbrook-healthcare-centre-ltd', which should be replaced with `[CITATION]`.
NOTICE [CITATION]
This Order was filed under
FILED
NO. 4-23-0703 July 29, 2024
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the
IN THE APPELLATE COURT
th District Appellate
limited circumstances allowed
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
LORI L. QUIGG, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Morgan County
MOHAMMED SALEEM, REBECCA L. STOCKER, ) No. 22LA13
and QUIGG ENGINEERING, INC., an Illinois )
Corporation, )
Defendants ) Honorable
) John M. Madonia,
(Mohammed Saleem, Defendant-Appellant). ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Justices Lannerd and DeArmond concurred in the judgment.
ORDER
¶ 1 Held: The appellate court (1) affirmed the trial court’s entry of summary judgment in
plaintiff’s favor on the issues of (a) whether defendant purchaser had defaulted
under the terms of the sale documents and (b) plaintiff’s ability to control and
operate the company that was the subject of the sale but (2) reversed the entry of
summary judgment in favor of plaintiff on the issue of her acceptance and
ownership of the collateral stock in the company in satisfaction of the debt. The
appellate court vacated all other findings of the trial court and remanded for
further proceedings.
¶2 This complicated case involves deciding who is in control of an engineering
company that was sold using the stock in that company as pledged collateral. The trial court
determined that the purchaser defaulted on certain payment obligations and that the terms of the
sale documents revested the seller with complete ownership of the shares in her possession, which
she held as collateral for the sale. We affirm the trial court’s finding of default and its placing the
seller in control of the company under the terms of the sale documents. However, we reverse the court’s finding that the seller was automatically vested with ownership of the collateral stock
because we conclude that article 9 of the Illinois Uniform Commercial Code (UCC) (810 ILCS
5/9-101 et seq. (West 2018)) explicitly forbids parties from contracting for such a remedy, which
does not comply with the mandatory provisions for such relief under the UCC. Accordingly, we
vacate the remaining findings and judgments of the trial court and remand for further proceedings
consistent with this order.
¶3 I. BACKGROUND
¶4 A. Summary of the Events on Which This Case Is Based
¶5 In January 2019, plaintiff-appellee, Lori Quigg, and defendant-appellee, Rebecca
L. Stocker, entered into a stock sale agreement with defendant-appellant, Mohammed Saleem, to
purchase Quigg Engineering, Inc. (QEI), for approximately $8 million. The parties agreed to use
the shares of stock in QEI as collateral to finance Saleem’s purchase. Quigg and Stocker issued
new stock certificates in Saleem’s name for all 1000 existing shares of QEI stock, and pursuant to
the terms of two share pledge agreements, Saleem pledged and physically gave back 900 shares to
[SEGMENT 6]
Quigg and 100 shares to Stocker, which represented their respective percentage of ownership of
QEI at the time of the sale. Saleem also executed promissory notes in favor of Quigg and Stocker
for their portions of the purchase price.
¶6 The sale documents—consisting of (1) the stock sale agreement, (2) a promissory
note to Quigg, (3) a promissory note to Stocker, (4) a pledge agreement to Quigg, and (5) a pledge
agreement to Stocker—contained cross-default provisions, meaning that a default on any one of
the five individual sale documents also constituted a default on the remaining four. Section 2(A)
of the notes required Saleem to make regular monthly payments (section 2(A) payments), and
section 2(B) of the notes required biannual “mandatory prepayments,” due January 1 and July 1 of
each year, that were calculated based on the net profits of QEI for the six-month period before
each mandatory prepayment (section 2(B) payments). If Saleem defaulted under the terms of the
sale documents, the pledge agreements authorized Quigg and Stocker, at their election, to
(1) declare all amounts under the notes immediately due in full and (2) vest in themselves all of
Saleem’s rights in the pledged stock in their possession. Unless and until an event of default,
however, the pledge agreements gave Saleem the right to vote the shares of stock and receive any
and all cash dividends.
¶7 In short, on January 1, 2019, Saleem became the sole owner of 100% of the shares
in QEI and retained all shareholder rights, but Quigg and Stocker held physical possession of the
stock and could immediately exercise all shareholder rights in the event of Saleem’s default. Even
after Saleem purchased the company and became its chief executive officer (CEO), Quigg and
Stocker continued in their employment with QEI, Quigg as “president” and Stocker as “vice
president.” Saleem made all of his required section 2(A) payments, and in December 2020 and
2021, Saleem made section 2(B) payments of $200,000.
¶8 In June 2022, Saleem and Quigg received a notice from QEI’s lender, Bank of
Springfield, that Saleem had taken distributions from QEI that were several hundred thousand
dollars above the amounts Bank of Springfield had authorized for QEI’s operation, Saleem’s tax
liability, and the stock purchase payments made that year. Shortly thereafter, Quigg sent Saleem a
notice of default, asserting that the unauthorized distributions constituted a default under the sale
documents because those distributions (1) caused QEI to lose its operational line of credit from
Bank of Springfield and (2) demonstrated that Saleem failed to make adequate section 2(B)
payments in previous years. The parties and their attorneys attempted to resolve the payment and
line of credit issues, but tempers flared and QEI quickly ran out of cash, jeopardizing its ability to
make payroll and perform on its government contracts.
¶9 On August 1, 2022, Quigg and Stocker held a meeting at which they declared
themselves the owners of the pledged stock and elected themselves as the sole officers of QEI.
¶ 10 B. The Complaint and Preliminary Proceedings
¶ 11 On August 1, 2022, Quigg filed a declaratory judgment action, seeking a
declaration that Saleem was in default under the terms of the sale documents and Quigg was
entitled to immediate ownership and control of QEI. Quigg asserted two grounds for Saleem’s
default.
¶ 12 First, Quigg alleged Saleem defaulted on the Bank of Springfield line of credit by
taking unauthorized distributions from QEI as cash dividends that he used for purposes unrelated
to QEI’s operations or his purchase of QEI’s shares (the line of credit default). Second, Quigg
alleged Saleem breached his obligations under section 2(B) of the note by (1) making inadequate
mandatory net profit prepayments and (2) failing to provide the required financial documentation
from QEI’s accountant to support his net profit calculations (the section 2(B) default). Based on
these two defaults, Quigg alleged that section 8 of the pledge agreement explicitly authorized her
to declare all amounts due and immediately vest all of Saleem’s rights relating to the collateral
stock in herself.
¶ 13 Shortly after she filed the complaint, Quigg sought an emergency temporary
restraining order (TRO) preventing Saleem from making any changes to QEI’s operations,
policies, or procedures as they existed prior to August 1, 2022. The trial court granted the TRO
without notice to Saleem. Once notified, Saleem sought to dissolve the TRO based on, among
other things, improper lack of notice. The trial court denied the motion to dissolve, Saleem
appealed, and this court reversed. [CITATION], ¶¶ 15-16, 215
N.E.3d 329.
¶ 14 Later in August, Saleem filed his answer, affirmative defenses, and counterclaims.
Saleem denied any default and asserted the defenses of (1) lack of notice of default and opportunity
to cure, (2) waiver of Quigg’s right to contest the adequacy of the section 2(B) payments by failing
to object to his December 2020 and 2021 payments within 30 days (as set forth in section 2(B) of
the note), and (3) failure to comply with section 9-620 of the UCC ([CITATION]), which governs the procedure for accepting collateral in satisfaction of a debt. Count I of
Saleem’s counterclaim alleged breach of contract based on Quigg’s failure to negotiate or execute
a subordination agreement with Signature Bank, preventing QEI from obtaining a new line of
credit. Count II sought declaratory relief and damages based on Quigg’s failure to comply with
article 9 of the UCC, specifically section 9-620. Count III sought damages for Quigg’s interference
with QEI’s operations by wrongfully asserting ownership over the company and interfering with
QEI’s vendors and clients by telling them that she was the owner and attempting to prevent Saleem
from accessing QEI’s software and e-mails.
¶ 15 C. The Preliminary Injunction Evidentiary Hearing
¶ 16 Also in August 2022, Saleem filed a motion for a preliminary injunction to
(1) maintain the status quo of Saleem’s full ownership and control of QEI, (2) restrain Quigg and
Stocker from interfering with QEI’s operations, and (3) require Quigg to negotiate and enter into
a subordination agreement to give QEI access to a new line of credit. We note that, after receiving
this court’s ruling reversing the TRO, Quigg voluntarily withdrew her own petition for a
preliminary injunction.
¶ 17 The trial court conducted an evidentiary hearing on Saleem’s motion for
preliminary injunctive relief over four days in October and November 2022. The majority of the
testimony and evidence presented at that hearing addressed (1) the section 2(B) default—namely,
Saleem’s failure to comply with section 2(B) payments—and (2) Saleem’s counterclaims based
on Quigg’s (a) failure to sign the subordination agreement with Signature Bank and (b) tortious
interference with QEI’s business operations. As we earlier explained, we do not discuss these
issues because we affirm the trial court’s subsequent entry of summary judgment on the issue of
Saleem’s default on alternate grounds.
¶ 18 Relevant to this appeal, the parties presented the following evidence at the hearing
on Saleem’s request for a preliminary injunction: (1) the June 16, 2022, notice of default from
Quigg to Saleem; (2) testimony from Mike Halsne, an executive on the Bank of Springfield loan
committee who handled QEI’s accounts, regarding the terms of the Bank of Springfield line of
credit and Saleem’s unauthorized distributions; (3) testimony from Saleem and his wife, Samina,
regarding those distributions; and (4) testimony from Quigg, Stocker, and Saleem regarding the
Signature Bank subordination agreement and line of credit.
¶ 19 On January 3, 2023, the trial court entered a written order denying Saleem’s request
for injunctive relief. In that order, the court, in an effort to assist the parties and streamline
resolution of the dispute, expressed its views on the merits of Saleem’s affirmative defenses,
particularly the issues of notice of default and waiver.
¶ 20 D. Quigg’s Motion for Summary Judgment
¶ 21 In November 2022, before the trial court denied Saleem’s request for injunctive
relief, Quigg filed a motion for partial summary judgment on the issue of Saleem’s default.
Although Quigg’s motion was based on (1) the line of credit default and (2) the section 2(B)
default, a majority of her arguments addressed the section 2(B) default. Saleem filed a response in
which he argued summary judgment was inappropriate because the parties had not had time to
fully conduct discovery. Saleem acknowledged that the parties had conducted significant
discovery on an expedited basis, but he contended that such discovery was narrowly focused on
the preliminary injunction hearing and not the full merits of the dispute.
¶ 22 After further discovery, the parties filed supplemental briefs. These briefs were
dedicated almost entirely to (1) the section 2(B) default, (2) whether Quigg had provided adequate
[SEGMENT 7]
notice of default and an opportunity to cure, (3) Quigg’s and Stocker’s alleged waiver of their right
to challenge the sufficiency of Saleem’s December 2020 and 2021 section 2(B) payments, and
(4) the failure to comply with section 9-620 of the UCC.
¶ 23 Saleem argued that pursuant to section 9-620 of article 9 of the UCC, Quigg and
Stocker could not unilaterally take ownership of the collateral stock without obtaining Saleem’s
consent after default. Saleem further argued that even if Quigg gained ownership of the stock, she
could only recover up to the amount of the outstanding debt. In other words, Saleem asserted that
he was entitled to the equity he had put into the company through (1) all of the payments he had
made under the terms of the sale documents; (2) the merger of his own engineering company with
QEI, as expressly contemplated by the terms of the stock sale agreement; and (3) the increase in
value and profitability of QEI under his leadership. Saleem contended that, consistent with his
testimony before the court, QEI was worth $12 million based on its yearly contracts, revenue, and
accounts receivable, which was significantly more than what he paid for it and how much he owed.
¶ 24 In her reply and supplemental briefing, Quigg claimed that the parties specifically
agreed to the remedy of immediate vesting of rights in Quigg once an event of default had occurred.
Section 8 of the pledge agreement expressly said that notice of default was not required and Quigg
“may” sell the collateral in the manner provided for in article 9 of the UCC. Section 8 entitled
Saleem to the surplus of any such sale but said nothing about Saleem being entitled to anything if
Quigg exercised any other remedy available to her under the UCC or under applicable law or
equity. Quigg further explained that the note was a “nonrecourse” note, meaning that Quigg was
not permitted to seek payment from Saleem personally and instead was required to seek
satisfaction of the debt only through the collateral. As a result, it made sense that the parties
explicitly agreed to retention of the collateral in addition and as an alternative to any remedies
provided by the UCC, which explicitly permitted parties to agree to other remedies. Quigg pointed
to section 9-207(b)(4)(C) ([CITATION]), which provided that parties
in possession of collateral may use that collateral in any manner agreed to by the parties. Quigg
claimed that the retention provision of section 8 constituted such an alternative “use” of the
collateral stock agreed to by the parties and therefore was authorized by the UCC.
¶ 25 In his supplemental briefing, Saleem argued that section 9-602 (id. § 9-602)
contained a list of provisions in article 9 that could not be waived or varied by the parties, and
section 9-620 was included on that list. Therefore, to the extent section 8 of the pledge agreement
stated to the contrary, such language was unenforceable.
¶ 26 E. The Trial Court’s Summary Judgment Ruling
¶ 27 The trial court agreed with Quigg. In its written order entered in May 2023, the
court determined that even though it did not believe notice was required based on the language of
the sale documents, the June 16, 2022, notice from Quigg complied with the notice provisions
relied on by Saleem. The court rejected Saleem’s arguments regarding how to calculate the
amounts he owed under section 2(B) of the notes.
¶ 28 Regarding Saleem’s defense of waiver, the trial court found that section 2(B)
required Quigg and Stocker to object to the net profit calculation within 30 days; however, the
court explained that Saleem failed to provide the required financial documentation, consisting of
QEI’s balance sheets and profit and loss statements, so that Quigg and Stocker could determine if
the amounts of his section 2(B) payments were correct. The court disagreed with Saleem that
Quigg and Stocker had actual notice of the financial condition of the company based on their
positions in the company and rejected his assertion that, because they were copied on dozens of e-
mails over the years with financial records attached, Saleem could be said to have substantially
complied with the requirement in section 2(B) of the notes that he provide QEI’s balance sheets
and profit and loss statements along with his section 2(B) payments. The court concluded that the
failure to provide the required financial documents was itself a material breach.
¶ 29 Regarding the immediate revesting of rights in the collateral and the various
sections of article 9 of the UCC, the trial court determined that the express language of section 8
of the pledge agreements was clear and unambiguous: Quigg and Stocker were entitled to
immediate vesting upon an event of default. The court disagreed strongly that Saleem “waived”
any rights under section 9-620 because section 8 of the pledge agreement authorized Quigg and
Stocker to proceed under that section or any other section of article 9 if they so chose. Instead, the
parties had contracted for an alternative, which the court deemed appropriate given the
nonrecourse nature of the note. According to the court, Quigg and Stocker selected a remedy,
Saleem did not waive one, and nothing in that alternative remedy ran afoul of article 9.
¶ 30 The trial court concluded that Quigg and Stocker were entitled to take ownership
of the stock upon Saleem’s default, which they did on August 1, 2022. Accordingly, the court
ordered that Quigg and Stocker were the rightful owners of QEI and entitled to immediate control
over the company.
¶ 31 F. The Postjudgment Motions
¶ 32 Following the entry of summary judgment, Stocker filed a motion to clarify that,
because she (1) stood in the same position as [CITATION] and (2) had filed her own motion for summary
judgment in January 2023 adopting all of [CITATION]’s arguments, the trial court’s entry of summary
judgment applied fully to her as well as [CITATION] filed several motions seeking clarification, reconsideration, leave to amend
his counterclaims, and judgment on the pleadings. [CITATION]’s motion for judgment on the pleadings
argued that [CITATION]’s declaratory judgment complaint was improper because it sought a finding of
nonliability based on past action, better known as a breach of contract claim, which Illinois courts
had long held cannot be addressed under the declaratory judgment statute because such actions
were meant to declare existing rights governing the relationship between parties before they acted.
¶ 34 [CITATION] also argued extensively that the trial court improperly sua sponte dismissed
his counterclaims based on a preliminary record. He sought leave to amend those claims to provide
more detail and explain why those claims had not been resolved.
¶ 35 [CITATION] further claimed the trial court erred by entering summary judgment based
on a preliminary record and by applying the wrong standard. [CITATION] again asserted that he needed
further discovery to prove his claims. Moreover, he contended that instead of looking at the record
in the light most favorable to [CITATION] as the nonmovant to determine if genuine issues of material
fact existed, the court resolved factual disputes against him based on credibility determinations it
made after the preliminary injunction hearing. [CITATION] also pointed out that in its written order, the
court erred by ruling that [CITATION] was entitled to summary judgment in part because (1) [CITATION] had
demonstrated a substantial likelihood of success and (2) [CITATION] had failed to do so. [CITATION]
asserted that this was instead the standard for preliminary injunctions.
¶ 36 [CITATION] and [CITATION] filed responses, providing myriad arguments why the trial court
should deny [CITATION]’s requested relief. Relevant to our purposes, [CITATION] explained that the court
- 10 - was permitted to and did exercise its discretion to enter declaratory relief to resolve the dispute
between the parties—namely, who is entitled to control QEI. That was the core dispute between
the parties, which dispute was entirely appropriate for a declaratory judgment action. Had Saleem
succeeded, Quigg noted, then he would have remained the owner of QEI, and the sale documents
would have continued to govern the parties. However, the court, after considering all of the
evidence from the parties, including both live witness testimony and hundreds of documents, could
only answer the question of who was entitled to control QEI by determining whether (1) Saleem
was in breach and (2) Quigg and Stocker were entitled to ownership of the shares of stock under
the plain terms of the sale documents. Quigg pointed out that nothing was left for the trial court to
do and no purpose would be served by conducting a second hearing just to present the same
evidence the parties had already presented to the court at the preliminary injunction hearing and
as part of the summary judgment briefing.
¶ 37 In July 2023, the trial court denied all of Saleem’s motions and (1) incorporated its
January 2023 order, which denied Saleem’s preliminary injunction, and its May 2023 order, which
granted summary judgment in Quigg’s favor, into its July 2023 order and (2) explained that it had
[SEGMENT 8]
already fully considered and rejected all of Saleem’s claims, affirmative defenses, and
counterclaims based on the findings in those orders.
¶ 38 The trial court elaborated in some detail, as to each defense and counterclaim, why
the prior findings necessarily disposed of Saleem’s claims. Count III was moot because it sought
damages based on Quigg and Stocker wrongfully asserting ownership of QEI, and the court found
they were, in fact, the owners. Regarding count I, the court concluded, in its January 2023 order,
that Quigg was not required to sign the subordination agreement because it contained unreasonable
terms that were less protective than those she had under the Bank of Springfield line of credit. And
- 11 - the court reiterated at length its rejection of the application of article 9 of the UCC, emphatically
refusing to rewrite the unambiguous terms of the sale documents that the parties had negotiated
with the assistance of legal counsel.
¶ 39 The trial court denied leave to amend based in part on its rejection of the
counterclaims on their merits and in further part on the untimeliness of the request. The court
rejected the motion for judgment on the pleadings because Saleem himself had filed a claim for
declaratory relief, and the court refused to let him change his position only after he had lost.
¶ 40 This appeal followed.
¶ 41 II. ANALYSIS
¶ 42 Saleem appeals, arguing that the trial court erred by (1) resolving factual issues and
making credibility determinations on summary judgment, (2) ruling Saleem failed to raise any
genuine issues of material fact as to his default and affirmative defenses, (3) dismissing,
sua sponte, his counterclaims, and (4) finding that Quigg and Stocker were entitled to immediately
retain the pledged shares in full satisfaction of the debt.
¶ 43 We affirm in part, vacate in part, and remand for further proceedings consistent
with this order. Specifically, we conclude, albeit on different grounds, that the trial court’s entry
of summary judgment was proper as to (1) finding Saleem in default and (2) awarding Quigg and
Stocker control of QEI. However, we agree with Saleem that the court erred by (1) declaring Quigg
and Stocker the owners of the pledged shares and (2) dismissing Saleem’s counterclaim based on
article 9 of the UCC (810 ILCS 5/9-101 et seq. (West 2018)). We vacate all findings of the trial
court other than those we have affirmed and remand for further proceedings consistent with this
order.
¶ 44 A. The Applicable Law and Standard of Review
- 12 - ¶ 45 This case comes before us on the trial court’s entry of summary judgment based on
the terms of the sale documents and interpretation of article 9 of the UCC.
¶ 46 Summary judgment is appropriate when, viewing the evidence in the light most
favorable to the nonmoving party, no genuine issue of material fact exists and the moving party’s
right to judgment as a matter of law is clear and free from doubt. [CITATION]. When examining whether a genuine issue of material fact exists, a
court construes the evidence in the light most favorable to the nonmoving party and strictly against
the moving party. [CITATION]. “The purpose
of summary judgment is not to try a question of fact, but to determine whether one exists.” [CITATION]. A trial court’s entry of summary judgment is reviewed
de novo. [CITATION].
¶ 47 The rules governing the interpretation of statutes and the interpretation of contracts
are well settled. When interpreting the meaning of a statute or contract, the fundamental rule is to
ascertain and give effect to the legislature’s or parties’ intent, and the best indicator of that intent
is the statutory or contractual language of the relevant provisions, given its plain and ordinary
meaning. [CITATION] (discussing statutory interpretation); [CITATION] (discussing contract interpretation). A statute, like a contract,
should be evaluated as a whole, and each provision must be construed in connection with every
other relevant section. [CITATION]. Issues of
statutory construction and contract interpretation raise questions of law that an appellate court
reviews de novo. [CITATION].
¶ 48 Quigg asserts that because the trial court entered summary judgment in her favor
- 13 - on her declaratory judgment action, the standard of review for this court on appeal is whether the
trial court abused its discretion. We reject this contention based on the well-reasoned opinion of
the Second District in [CITATION], in which the Second District concluded that de novo review was the appropriate
standard of review of a trial court’s entry of summary judgment in a declaratory judgment action.
¶ 49 B. Entry of Summary Judgment on Saleem’s Default
¶ 50
. Whether the Trial Court Properly Applied the
Summary Judgment Standards on the Issue of Saleem’s Payment Default
¶ 51 The trial court entered summary judgment based on Saleem’s failure to make
accurate biannual net profit payments pursuant to section 2(B) of the note (the section 2(B)
default). The parties dedicate much of their briefs to this issue and the issues related to it (for
example, the accounting method the parties should use to properly calculate the amounts owed).
Saleem argues that the court erred when it decided these issues in Quigg’s favor by (1) making
factual findings and credibility determinations on contested evidence from a preliminary injunction
hearing, (2) failing to look at the evidence in the light most favorable to him as the nonmovant,
and (3) applying, at times, the standard for preliminary injunctions rather than motions for
summary judgment.
¶ 52 Based on our review of the record, we conclude that the trial court did not strictly
follow the standards for evaluating whether the entry of summary judgment is appropriate. For
instance, the court incorporated and relied on its January 3, 2023, order denying Saleem’s motion
for a preliminary injunction when it granted Quigg’s motion for summary judgment and then
further explained those rulings when denying Saleem’s postjudgment motions. In that January 3
order, the court also addressed and rejected the merits of some of Saleem’s claims, even though
- 14 - the only question it should have determined was whether Saleem had established the four elements
required for injunctive relief. See [CITATION].
¶ 53 Saleem had no obligation to prove his case at a preliminary injunction hearing. [CITATION].
¶ 54 We are especially concerned about the trial court’s statements because of the
arguments to the court made by Quigg, as set forth in the background portion of this order, that
appear to have led that court astray. For example, Quigg explicitly and repeatedly told the court,
both in her arguments for summary judgment and in response to Saleem’s motion to reconsider,
that it had already disposed of Saleem’s arguments and defenses when the court denied his request
for injunctive relief. Quigg further argued to the trial court that it could decide these issues because
the parties had extensively briefed them and presented four days of live testimony and evidence to
the court. Quigg stated that no purpose would be served by conducting a trial on the merits just so
the parties could present the same evidence and testimony for the court to decide the same
questions. Indeed, at oral arguments before this court, Quigg made essentially the same arguments
and even conceded that trial courts sometimes address the ultimate merits of the parties’ claims at
a preliminary injunction hearing. Quigg suggested that this court should affirm the entry of
summary judgment because (1) the trial court expressly asked the parties to present significant
evidence in support of their claims and (2) Saleem was able to fully litigate his counterclaims at
the preliminary injunction hearing. Quigg’s assertions are simply incorrect. See [CITATION].
- 15 - Nowobilski, [CITATION], ¶ 45 (“Illinois law is clear that it is ‘serious procedural
error’ to treat a hearing on a motion for preliminary injunction as a ‘full scale hearing on the merits
and permanently dispose[ ] of all pending matters.’ ” (quoting [CITATION])).
¶ 55 Even if Quigg’s suggestion that the parties would present the exact same evidence
at trial had some truth to it, summary judgment is not a substitute for trial. Summary judgment
requires the trial court to strictly construe the evidence in favor of the nonmovant and against the
movant. [CITATION], ¶ 22. Trials, by contrast, serve the crucial purpose of
presenting live testimony after the parties have adequately conducted discovery precisely so the
fact finder, here the trial court, can evaluate the evidence as it sees fit without deference to one
side or the other.
¶ 56 We note that Quigg did present and argue the correct standard for summary
judgment both in her written motions and oral arguments. However, the trial court was apparently
persuaded by her assertions that we have highlighted because it used very similar language in its
orders, which, when read as a whole, indicate strong agreement with Quigg’s arguments. Although
the bulk of Quigg’s arguments relied on the proper standards, her statements encouraging the trial
court to bend the rules, which at first blush have intuitive appeal, have tainted the record, by which
we mean those statements and the trial court’s reliance on them makes it very difficult to conclude
Saleem was not prejudiced by the court’s apparent errors.
[SEGMENT 9]
¶ 57 Put another way, even with de novo review, it appears that the trial court,
encouraged in part by Quigg, conclusively decided issues based on preliminary evidence from
Saleem who, quite correctly, proceeded under the impression that the court (1) would not
transform Saleem’s failure to succeed at the preliminary injunction hearing into a final
- 16 - determination that Saleem’s claims failed on their merits and (2) would properly consider that
evidence anew, in the light most favorable to Saleem at summary judgment and without
prejudgment.
¶ 58 We recognize that our standard of review is de novo, meaning we conduct the same
analysis as the trial court, without any deference to its findings of fact or conclusions of law.
However, after thoroughly reviewing the record and the arguments of the parties, both in the trial
court and before this court, we are unable to conclude that Quigg’s right to judgment as a matter
of law is “clear and free from doubt.” Given this context, we conclude that vacating the trial court’s
findings on these and all other issues we do not affirm is the most appropriate course of action.
¶ 59
. Saleem’s Line of Credit Default Is an Alternative Ground To Affirm
¶ 60 Although we vacate the trial court’s findings regarding Saleem’s section 2(B)
default and accompanying defenses, we may affirm based on any grounds apparent in the record.
On that basis, we conclude that no genuine issue of material fact exists as to Saleem’s line of credit
default with Bank of Springfield and affirm the court’s grant of summary judgment.
¶ 61 To begin, we recognize that regarding the issue of whether Saleem had defaulted
under the sale documents, the parties spent the majority of their arguments before the trial court,
and all of them to this court, addressing the section 2(B) default. Nonetheless, Quigg’s verified
complaint spends an equal amount of time addressing the line of credit default as it does the section
2(B) default. And in her motion for partial summary judgment on the issue of Saleem’s default,
Quigg clearly raised the line of credit default as one basis on which no material factual issues
existed and she was entitled to judgment as a matter of law.
¶ 62 Saleem’s response to that motion did not address this ground and was relatively
short due to his need for further discovery. Each of the parties underwent a discovery deposition
- 17 - and testified at the evidentiary hearing, and they testified about the line of credit default. Further,
the parties conducted an evidence deposition of Mike Halsne, the loan committee member in
charge of QEI’s line of credit loan, and submitted it to the trial court as part of the evidentiary
hearing.
¶ 63 Accordingly, Saleem (1) was aware Quigg asserted the line of credit default as an
independent ground for Saleem’s default under the sale documents; (2) conducted adequate
discovery on the issue; and (3) as we explain below, (a) offered nothing more than a conclusory
denial of the line of credit default and (b) admitted, along with his wife, Samina, to using the
unauthorized disbursements for personal reasons and never attempting to return them. Saleem
cannot claim any prejudice. Indeed, at oral arguments, Saleem conceded that, other than his
conclusory testimony at the preliminary injunction hearing, nothing in the record contradicted that
he was in default under the terms of the Bank of Springfield line of credit.
¶ 64 C. Saleem’s Default on the Bank of Springfield Line of Credit
¶ 65 Quigg filed two motions for partial summary judgment, seeking determinations that
(1) Saleem was in default under the terms of the sale documents for (a) failing to make sufficient
mandatory prepayments under section 2(B) of the note and (b) defaulting on the Bank of
Springfield line of credit and (2) those sale documents did not require her to sign the subordination
agreement with Signature Bank, which had issued a commitment to extend a line of credit to QEI.
Saleem responded by asserting that genuine issues of material fact existed regarding, in relevant
part, Quigg’s failure to (1) give Saleem a notice of default that complied with the requirements of
the sale documents and (2) execute the subordination agreement with Signature Bank, which
contained reasonable terms and conditions as demonstrated by Stocker’s signing the same
agreement. The trial court granted Quigg’s motions for summary judgment, finding that Quigg
- 18 - provided adequate notice of default, even though notice was not required under the circumstances,
and Quigg was not required to sign the subordination agreement because its terms were (1) much
less protective than what Quigg had under [CITATION]'s line of credit and therefore
(2) unreasonable as a matter of law.
¶ 66 We conclude that the sale documents explicitly stated that a default on the senior
indebtedness, i.e., the [CITATION] line of credit, constituted a default under the terms of
the pledge agreement and therefore a cross-default under the other sale documents. No genuine
issue of material fact exists that Saleem took several hundred thousand dollars of unauthorized
distributions in the form of cash stock dividends, which were unauthorized under the terms of the
[CITATION] line of credit because he used those funds for purposes other than operating
QEI, making payments on the stock purchase, or for income taxes.
¶ 67 We note that the plain language of the sale documents required Quigg and Stocker
to give Saleem written notice of default, regardless of the type of default alleged, setting forth
(1) the breach, (2) how to cure it, (3) the deadline to cure it, and (4) that failure to cure it would
result in Quigg’s exercising her rights and remedies under the sale documents. On June 16, 2022,
with regard to Saleem’s default on the [CITATION] line of credit, Quigg complied with
these requirements and properly gave Saleem a written notice of default that contained the
information required by section 9 of the pledge agreements and section 10 of the notes.
¶ 68 Saleem failed to cure the default in that he never returned the excessive
disbursements to QEI and did not establish a new line of credit for QEI through another lender.
Because Saleem failed to provide Quigg with the subordination agreement Signature Bank
required for the new line of credit until after the expiration of the cure period, Quigg’s failure to
sign the subordination agreement or negotiate reasonable terms for the same with Signature Bank
- 19 - did not excuse Saleem’s default.
¶ 69 We affirm the trial court’s entry of summary judgment on the existence of Saleem’s
default, and we vacate all factual findings and conclusions of law made by the trial court other
than those explicitly affirmed in this order. We express no opinion on the ultimate merits of the
issues or the correctness of the trial court’s findings and make clear that all matters not affirmed
may be addressed on remand, including through further summary judgment proceedings.
¶ 70
. Saleem’s Unauthorized Distributions Constituted a Default
Under the Sale Documents
¶ 71 a. The Pledge Agreement Expressly Provided That a Default
on the Line of Credit Constituted an Event of Default
Under the Pledge Agreements
¶ 72 First, the terms of the sale documents, specifically the pledge agreements, explicitly
provided that a default on the Bank of Springfield line of credit, identified as the “Senior
Indebtedness” in the sale documents, also constituted an event of default. The Quigg and Stocker
notes, in section 4, both expressly incorporate by reference the respective pledge agreements.
Section 14 of the pledge agreements provides that “[a] default under this Agreement or the Senior
Indebtedness shall constitute a default under” (emphasis added) the notes to Quigg and Stocker
and the stock sale agreement. The terms of the Bank of Springfield line of credit expressly
prohibited QEI from paying cash dividends on stock to its shareholders unless (1) Bank of
Springfield approved the disbursement in writing or (2) such dividend disbursement was made for
the purpose of paying incomes taxes incurred as a result of ownership of QEI’s stock. Relatedly,
the line of credit permitted the use of loan proceeds solely for QEI’s business operations unless
otherwise approved in writing. (We note that (1) the parties agreed before the trial court that stock
- 20 - purchase payments to Quigg and Stocker were authorized by Bank of Springfield and (2) Halsne
confirmed the same.)
¶ 73 b. Saleem’s Actions Violated the Terms of the Agreement
¶ 74 Second, even strictly construed in favor of Saleem, the undisputed evidence in the
record demonstrates that Saleem took unauthorized disbursements from QEI and the Bank of
Springfield line of credit that were not used for business operations, payment of Saleem’s income
tax liabilities based on his ownership of QEI’s stock, or to cover stock buyout payments to Quigg
and Stocker. Halsne testified about the distributions at his deposition, Stocker identified the
disbursements on QEI financial statements and reports, which were admitted into evidence, and
Samina confirmed that in 2021, she and Saleem took a $300,000 disbursement to purchase a
property in their personal capacities and not on behalf of QEI. According to Halsne at his evidence
deposition, the Bank of Springfield loan committee decided not to renew QEI’s line of credit
[SEGMENT 10]
because the disbursements had caused severe cash flow problems for QEI and Bank of Springfield
was no longer willing to loan money to QEI at all. The testimony of Halsne and others confirmed
that Bank of Springfield informed Saleem that QEI needed to find another lender.
¶ 75 Most important, Saleem’s testimony and communications with Halsne
corroborated the other evidence that he took unauthorized disbursements. Saleem acknowledged
that he e-mailed Halsne on June 13, 2022, which e-mail was admitted into evidence at the
preliminary injunction hearing, and informed him that “we took some money as a dividend” at the
beginning of 2021 and “[a] portion was used to pay taxes.” Saleem then wrote the following: “At
the end of the year I did take another $300K for which I apologize… I should have checked with
you. Before today, I didn’t realize there was a stipulation in the contract, otherwise I wouldn’t have
done it.” Saleem agreed he never returned the money, and his only explanation was that Bank of
- 21 - Springfield did not ask for the money back.
¶ 76 Although during his testimony Saleem emphatically denied he defaulted on the line
of credit, took unauthorized disbursements, or admitted any wrongdoing in his e-mail, Saleem did
not provide any evidence, other than his own testimony, to support his conclusory statements, and
the record is devoid of contrary facts that would prevent summary judgment. (We again note that
Saleem conceded at oral arguments before this court that no other evidence in the record supported
his self-serving testimony that he was not in default on the line of credit.) And, even though Saleem
testified that he set aside the $300,000 in order to purchase an office building (in his name to lease
back to QEI) to consolidate QEI’s Chicago offices, thereby significantly decreasing QEI’s
expenses, when asked where the money was and what it was being used for, Saleem admitted he
was using it to pay his litigation costs for defending against Quigg’s lawsuit.
¶ 77 Based on the foregoing, we conclude the trial court’s entry of summary judgment
on the issue of Saleem’s default was proper because no genuine issue of material fact existed that
Saleem was in default under the Bank of Springfield line of credit, and therefore the share pledge
agreements and notes.
¶ 78
. Saleem’s Defense of Failure To Provide Proper Notice of Default
¶ 79 Saleem argues that the trial court erred by finding that (1) no notice of default was
required and (2) to the extent that notice was required, the June 16, 2022, notice of default letter
provided adequate notice. Saleem argues that written notice was required under the terms of the
sale documents, specifically section 9 of the share pledge agreements. Quigg claims that notice
was not required because Saleem made a payment default and the notes and share pledge
agreements explicitly provide notice is not required for payment defaults.
¶ 80 Ultimately, we conclude that the record demonstrates no genuine issue of material
- 22 - fact exists that Saleem was in default under the terms of the Bank of Springfield line of credit and
the notice of default complied with section 9 regarding that breach.
¶ 81 a. Written Notice of Default Was Required
¶ 82 Section 9 of the share pledge agreements provides that all notices “required or
permitted to be given or made hereunder shall be given in the manner and to the place as provided
in the Purchase Agreement for notices to the party to whom such notice is given.” Section 6.12 of
the stock sale agreement provides, “All notices and other communications hereunder shall be in
writing and shall be deemed given when mailed, delivered personally, sent by email (which is
confirmed), or sent by an overnight courier service” to the parties and their lawyers at specified
addresses. Section 9 of the share pledge agreements further provides:
“Notwithstanding anything to the contrary contained herein, in the event of any
breach hereof or default hereunder, Pledgee shall provide notice to the pledgor
specifying: (a) the breach; (b) the action required to cure such breach; (c) the date
by which such breach must be cured as provided hereunder; and (d) that failure to
cure such breach on or before the date specified in the notice may result in an Event
of Default hereunder.” (Emphases added.)
(We note that section 10 of the notes contains an essentially identical “notwithstanding” clause
with slight differences in wording tailored to the acceleration provisions of the notes.)
¶ 83 Based on these provisions, which are all incorporated by reference into the share
pledge agreements and thereby into the notes, written notice of any default was required to be
given to Saleem with an opportunity to cure.
¶ 84 b. Quigg Provided Sufficient Notice of the Line of Credit Default
¶ 85 In its written order, the trial court made an alternative finding that even if notice
- 23 - was required, Quigg and Stocker gave adequate notice to Saleem by sending him a letter dated
June 16, 2022, titled “Notice of Default,” which letter was sent via overnight courier, e-mail, and
also to his attorneys designated in the stock sale agreement. That June 16 notice of default stated
that Saleem had defaulted under the provisions of the sale documents by (1) making distributions
of $1.4 million in 2020 and $1.3 million in 2021, “which are well in excess of the amounts
permitted for salary and necessary for estimated tax payments,” in violation of section 4.3 of the
stock sale agreement; (2) failing to make adequate section 2(B) mandatory prepayments in 2020
and 2021 based on those distributions compared to the total amounts Quigg and Stocker received
in payments in those years of $785,000 and $740,000, respectively; and (3) defaulting on the Bank
of Springfield line of credit, which notice of default from Bank of Springfield was attached.
¶ 86 The June 16 notice of default further provided that the defaults could be cured by
returning “all disbursements to [QEI] over and above those amounts permitted in the Sale
Agreement, and remit payment to Payee for the full amounts due to them under their respective
Promissory Notes.” The notice further demanded that supporting documentation for all payments
be provided in order to cure the default. Finally, the notice stated that if Saleem did not cure the
default as requested within 30 days (or by July 18, 2022), Quigg intended to exercise her rights
under the sale documents to (1) accelerate all amounts due under the notes; (2) charge interest at
the “Default Rate” (8.5% instead of 4.5%) from the time of the first breach, which would be
determined later; (3) invoke her rights under section 8 of the pledge agreement “to declare that all
rights of [Saleem] pursuant to Paragraph 6 of the Quigg Pledge Agreement shall hereby
immediately vest in [Quigg]”; and (4) use all rights and remedies provided by article 9 of the UCC
and any other applicable law, including conducting a public sale, “retain[ing] the shares as
satisfaction of the debt,” or “otherwise enforc[ing] her security interest through judicial
- 24 - proceeding.”
¶ 87 Saleem argues that the June 16 notice of default is insufficient because it relied on
section 4.3 of the stock sale agreement as a basis for the default, but section 4.3 was deleted by
amendment of the parties in 2019. Further, Saleem contends the notice did not provide adequate
information about the breach or how to cure because it did not provide an amount that Quigg and
Stocker believed they were owed pursuant to section 2(B).
¶ 88 The fact that the notice refers to a deleted provision is of no moment. The substance
of the notice clearly identifies the two breaches as (1) defaulting under the Bank of Springfield
loan and (2) failing to make adequate section 2(B) payments. Section 9 did not require Quigg to
identify the relevant provision of the sale documents, and the notice’s referring to a deleted section
did not cause any confusion. Similarly, Quigg’s failure to provide a specific payment amount did
not render the entire notice ineffective; this is particularly true considering that Quigg included a
copy of the Bank of Springfield notice of default, which did give a specific dollar amount, with
her June 16, 2022, notice of default to Saleem. Most important, the notice unquestionably provided
the necessary information required by section 9 regarding Saleem’s alleged default on the Bank of
Springfield line of credit. Saleem has never argued that (1) he did not default on the line of credit
or (2) by breaching the terms of the line of credit, he was nevertheless not in default under the
terms of the sale documents. Accordingly, the notice of default was sufficient as to that alleged
default.
¶ 89 The June 16 notice of default specifically identified the default of the Bank of
Springfield line of credit as one basis for Saleem’s default under the sale documents. Although
section 4.3 was subsequently deleted, the terms contained therein were substantially identical to
the terms in the line of credit restricting the amounts and purposes of disbursements for stock
- 25 - dividends. Reading the letter as a whole, Saleem was clearly informed of the basis for the breach
[SEGMENT 11]
and that he could cure it by returning the unauthorized disbursements to QEI or he risked Quigg
claiming all of his rights in the QEI stock she held as collateral.
¶ 90
. Saleem’s Failure To Cure and His Defense That Quigg’s Failure To Execute
the Subordination Agreement Prevented Him From Curing
¶ 91 Section 7(A) of the pledge agreements and section 6(b) of the notes both provide
that an event of default occurs when a breach of any covenant or obligation under the sale
documents goes uncured for 30 days after written notice of the breach is given. As we explained
earlier, aside from his own conclusory and unsupported statements, Saleem has not pointed to
anything in the record that contradicts Quigg’s evidence that he took disbursements of over
$600,000 as unauthorized stock dividends despite the unambiguous restrictive covenants in the
Bank of Springfield line of credit agreement. Saleem claimed that no one asked him to return the
money, but he acknowledged receipt of the June 16 notice of default, which clearly states the
unauthorized distributions must be returned to QEI, with supporting documentation, no later than
July 18, 2022.
¶ 92 Saleem testified, and Samina and other evidence (such as Saleem’s e-mail to
Halsne) confirmed, that he took a disbursement of $300,000 to purchase an office building in his
name, which he intended to lease back to QEI. Even assuming, as evidence in the record suggests,
that Saleem’s personally purchasing an office building for QEI to lease, as Quigg herself had done,
was arguably a sound business decision made in good faith for QEI’s benefit, Saleem admitted
(1) he took other disbursements that he only partially used to pay taxes, with no further
explanation, and (2) the $300,000 he had set aside to purchase the office building for QEI’s use
was currently being used by him to pay his personal litigation expenses defending the lawsuit.
- 26 - Accordingly, no genuine issue of material fact exists that Saleem took unauthorized disbursements
that he was using personally, not for QEI, and he never returned the money to QEI as demanded,
much less within the 30-day cure period.
¶ 93 We note that Saleem argues that Quigg breached her obligations by not negotiating
and signing the Signature Bank subordination agreement, which ostensibly would have given QEI
and Saleem the ability to cure the Bank of Springfield default. Saleem also briefly mentions that
Quigg failed to sign the 90-day extension agreement with Bank of Springfield to give him and QEI
more time to secure another lender. However, Saleem makes these arguments when asserting why
the trial court erred by dismissing his counterclaims, which are based primarily on these instances
of Quigg’s interfering with QEI’s business operations. Neither before the trial court nor this court
did Saleem explicitly (or even just clearly) claim Quigg’s failure to sign the extension agreement
constituted a defense to his default. (Saleem does not and cannot make such a claim against Stocker
because Stocker (1) was not required by Bank of Springfield to sign the extension agreement and
(2) did sign the subordination agreement required by Signature Bank as a precondition to
extending QEI a line of credit.)
¶ 94 In any event, we conclude that Saleem’s contentions do not raise an issue of
material fact regarding his failure to cure his taking unauthorized distributions. The June 16 notice
of default specified that Quigg would deem the default under the Bank of Springfield line of credit
to be cured so long as Saleem tendered the full amount of the unauthorized distributions back to
QEI. The notice of default does not mention obtaining a new line of credit was required to cure
the alleged default under the sale documents, and that makes sense given that (1) the line of credit
did not mature until June 30, 2022, meaning it could be paid in full on time if the disbursements
were returned, and (2) if the funds were returned to QEI, QEI could use them for operating
- 27 - expenses, thereby arguably making them authorized distributions. Whatever the reason, Quigg was
entitled to dictate the actions necessary for her to deem Saleem’s default cured, and the actions she
decided were appropriate to cure were (1) returning the disbursements to QEI and (2) providing
supporting documentation for the same.
¶ 95 To the extent Saleem claims Quigg’s refusal to sign the subordination agreement
prevented him from curing, we are not persuaded to reach a different conclusion. As previously
mentioned, the only evidence Saleem offered regarding why he had not returned the distributions
was his own testimony that no one ever asked him to do so. Although Bank of Springfield did not
make a request, Quigg did, and because the pledge agreement specifically deemed a default on the
senior indebtedness constituted a default under the sale documents, Quigg’s request is the only one
that matters. Most important, Saleem’s assertions regarding Quigg’s failure to sign the
subordination agreement also form the basis for count I of his counterclaim for breach of contract,
and Saleem may fully recover any damages he suffered as a result of Quigg’s failure to sign,
assuming Saleem succeeds on the merits of his claim on remand.
¶ 96
. Summary
¶ 97 Based on our review of the record, we conclude that no genuine issue of material
fact exists that (1) Saleem defaulted on the Bank of Springfield line of credit, (2) Quigg provided
the required written notice of that default, and (3) Saleem did not cure the default within 30 days
of his receiving notice.
¶ 98 D. The Automatic Vesting Provision Violates Article 9 of the UCC
¶ 99 Next, Saleem argues that the trial court erred by rejecting the merits of his
arguments and counterclaims that were predicated on the applicability of certain nonwaivable
provisions of article 9 of the UCC and Quigg’s failure to comply with the requirements of those
- 28 - provisions. Specifically, Saleem relies on section 9-620 of the UCC (810 ILCS 5/9-620 (West
2018)), which permits a secured party to retain collateral in satisfaction of a debt only if the debtor
has agreed to such a result in a writing authenticated after default. Saleem argues that the court
incorrectly ruled that (1) section 9-620 was inapplicable to this case, not because Saleem waived
that provision but because he agreed to an alternate remedy, and (2) Quigg’s August 1, 2022,
election to accept the pledged stock in full satisfaction of Saleem’s debt was authorized and
effective under the express terms of the pledge agreement.
¶ 100 To analyze this claim, we begin by explaining why article 9 of the UCC applies and
what section 9-620 requires.
¶ 101
. The Applicability of Article 9
¶ 102 “Article 9 of the UCC (810 ILCS 5/9-109(a)(1) (West 2020)) ‘applies to any
transaction, regardless of its form, that intends to create a security interest in personal property.’ ”
[CITATION]. Among other things, article 9 sets forth the
rules governing (1) how creditors create and perfect a security interest, or lien, in collateral used
as security for a loan (810 ILCS 5/9-301 to 9-316 (West 2018)); (2) determining the priority of
competing security interests in the same collateral (id. §§ 9-317 to 9-339); (3) the rights and
remedies of creditors and debtors before and after default (id. §§ 9-207 to 9-210, 9-601 to 9-628);
and (4) the sale and disposition of collateral in satisfaction of a debt (id. §§ 9-610 to 9-622).
¶ 103 Here, the parties agree that the UCC applies because Saleem pledged the
certificated stock as collateral, giving Quigg and Stocker a security interest in that collateral in the
event of a default. The parties further agree that Quigg and Stocker attempted, after they declared
- 29 - Saleem in default, to take ownership of the shares under section 8 of the pledge agreements as a
complete remedy. Section 8 provides as follows:
“[U]pon the occurrence of an Event of Default under this Agreement, all
Obligations shall, at the election of the Pledgee, become immediately due and
payable, without notice to the Pledgor, and all rights of the Pledgor in respect to the
Collateral, including all rights of the Pledgor under the terms of Section 6 shall
immediately vest in the Pledgee. In addition to having all rights and remedies
provided under other provisions hereof or provide[d] in Article 9 of the Uniform
Commercial Code of the State of Illinois (the ‘Code’) and any other applicable law,
subject to the rights of the Senior Lender, if applicable, the Pledgee may sell the
Collateral in the manner permitted by Article 9 of the Code.”
¶ 104 Section 6 provides that “[u]nless and until an Event of Default has occurred and is
continuing,” Saleem was entitled “to receive all cash distributions paid in respect of the Shares”
[SEGMENT 12]
and “to exercise any voting and/or consensual powers pertaining to the Shares or any part thereof,
for all purposes not inconsistent with the terms of this Agreement.”
¶ 105 Based on the above, Quigg and Stocker claim the pledge agreements immediately
vested, at their election, all of Saleem’s rights in the stock. They assert that this result is proper
because the note was a “nonrecourse note,” which meant they could only seek to recover the
outstanding debt through the collateral and not Saleem personally. Saleem argues that this remedy
is known as “strict foreclosure” and is governed by section 9-620 of the UCC.
¶ 106
. Section 9-620
¶ 107 Section 9-620 is titled “Acceptance of collateral in full or partial satisfaction of
obligation; compulsory disposition of collateral” and provides as follows:
- 30 - “(a) Conditions to acceptance in satisfaction. Except as otherwise provided
in subsection (g) [(which deals with consumer transactions)], a secured party may
accept collateral in full or partial satisfaction of the obligation it secures only if:
(1) the debtor consents to the acceptance under subsection (c);
***
(b) Purported acceptance ineffective. A purported or apparent acceptance of
collateral under this Section is ineffective unless:
(1) the secured party consents to the acceptance in an authenticated
record or sends a proposal to the debtor; and
(2) the conditions of subsection (a) are met.
(c) Debtor’s consent. For purposes of this Section:
***
(2) a debtor consents to an acceptance of collateral in full
satisfaction of the obligation it secures only if the debtor agrees to the terms
of the acceptance in a record authenticated after default or the secured party:
(A) sends to the debtor after default a proposal that is
unconditional or subject only to a condition that collateral not in the
possession of the secured party be preserved or maintained;
(B) in the proposal, proposes to accept collateral in full
satisfaction of the obligation it secures; and
(C) does not receive a notification of objection authenticated
by the debtor within 20 days after the proposal is sent.” (Emphases
added.) 810 ILCS 5/9-620(a)-(c) (West 2018).
- 31 - ¶ 108 “In construing the UCC, this court has also looked to the UCC official comments
to discern the legislature’s intent.” [CITATION], ¶ 16,
162 N.E.3d 269. “[T]he Illinois UCC is based on the Uniform Commercial Code enacted by all 50
states and, therefore, decisions from other states and federal case law may be helpful in this
analysis. In the absence of Illinois cases on the subject, Illinois courts have looked to UCC
decisions from other jurisdictions.” Id. ¶ 20 (citing [CITATION]).
¶ 109 Comment 2 says that section 9-620 “deal[s] with strict foreclosure, a procedure by
which the secured party acquires the debtor’s interest in the collateral without the need for a sale
or other disposition under Section 9-610.” 810 ILCS Ann. 5/9-620, UCC Comment 2 (Smith-Hurd
2022). As noted in comment 5 to section 9-620, “[t]o ensure that the debtor cannot unilaterally
cause an acceptance of collateral,” “acceptance does not occur unless, in addition, the secured
party consents to the acceptance in an authenticated record or sends to the debtor a proposal.” 810
ILCS Ann. 5/9-620, UCC Comment 5 (Smith-Hurd 2022).
¶ 110 Illinois has held since the 1970s that a creditor’s purported retention of collateral in
satisfaction of a debt is ineffective—that is, the creditor does not take ownership of the collateral—
if the creditor fails to comply with the consent or written notice requirement of section 9-620.
[CITATION] (holding, based on prior Illinois cases and cases from other jurisdictions, that retention of collateral
is ineffective if notice requirements of the UCC are not complied with). See [CITATION], ¶ 31 (explaining, based on comment 5 to section
9-620, that mere acceptance of physical possession of collateral does not amount to retention in
- 32 - satisfaction of a debt).
¶ 111 Courts in other jurisdictions have held the same. See [CITATION] (holding failure to
comply with article 9 rendered retention ineffective and that automatic transfer provision in
contract was “nothing more than an unenforceable attempt at predefault waiver of the debtor’s
rights under Article 9”); [CITATION] (holding
retention of mobile home was not effective and section 9-620 could not be waived).
¶ 112 Here, Saleem did not consent to the acceptance of the collateral in satisfaction of
the debt, and Quigg and Stocker did not send a written proposal to Saleem. Because the parties did
not comply with section 9-620, the “purported or apparent acceptance of collateral *** is
ineffective.” 810 ILCS 5/9-620(b) (West 2018).
¶ 113
. The Terms of Section 9-620 Cannot Be Waived or Varied by the Parties
¶ 114 Quigg acknowledges that she did not comply with section 9-620 because, she
argues, the terms of the pledge agreements provided an alternative remedy by agreement: the
automatic transfer described in section 8. Quigg asserts that the automatic transfer provision in
section 8 of the pledge agreements is consistent with article 9 because section 9-601(d) explicitly
permits parties to secured transactions to vary the application of Article 9 by agreement. See id.
§ 9-601(d) (“[A]fter default, a debtor and an obligor have the rights provided in this Part and by
agreement of the parties.”).
¶ 115 However, as Saleem correctly argues, the plain language of section 9-601(a) states,
- 33 - “After default, a secured party has the rights provided in this Part and, except as otherwise provided
in Section 9-602, those provided by agreement of the parties.” (Emphasis added.) Id. § 9-601(a).
Section 9-602 expressly provides that “to the extent that they give rights to a debtor or obligor and
impose duties on a secured party, the debtor or obligor may not waive or vary the rules stated in
the following listed Sections.” (Emphasis added.) Id. § 9-602. And section 9-620 is listed as one
of the sections that the parties cannot alter. Id. § 9-602(10).
¶ 116 Courts uniformly agree that section 9-620 may not be waived. [CITATION] (holding, under a prior version of section 9-620, “Notice is required by the plain meaning
of the section and none was given. Under section 9-501(3) quoted above, such notice could not be
waived and no other agreement appears in the record. It follows that [the plaintiff] could not retain
the collateral in discharge of the obligation.”); [CITATION] (“The provisions of § 409.620 may not be waived by the parties.”); [CITATION] (holding section 9-620 may not be waived or varied by parties and
collecting cases); [CITATION] (holding
provision in contract allowing for retention and forfeiture of ownership in stock pledged as
collateral violated section 9-620); [CITATION] (“The remedy is only available if the debtor consents to strict foreclosure after it has
defaulted. Thus, for example, the debtor cannot consent to strict foreclosure in anticipation of a
future default at the time it enters into the transaction that creates the debt and security interest,”
and “[t]he requirements of § 9-620 may not be waived.”); [CITATION] (holding
that section 9-602 prevents parties from opting out of UCC provisions listed therein, including the
right of redemption, and collecting cases); [CITATION].
¶ 117 Quigg argues that these cases are distinguishable because they do not involve
nonrecourse notes. However, Quigg provides no authority to support her conclusory statement that
this distinction makes a difference. Importantly, nothing in the UCC even suggests that a
nonrecourse note affects the rights or remedies of the parties to a secured transaction; but section
9-602 does permit a secured party to waive its rights. [CITATION]. Moreover, as
Saleem points out in his brief, Quigg and Stocker have not provided this court any authority from
any source countenancing the automatic transfer of ownership of collateral or predefault waiver of
section 9-620’s requirements.
¶ 118 Here, the trial court insisted that its ruling did not rest on a finding that Saleem
waived any rights under section 9-620. Instead, the court maintained that Saleem simply contracted
for an alternative remedy in addition to those provided by the UCC and found that Quigg properly
invoked that alternative remedy after Saleem’s default. However, that alternative remedy was, in
reality, precisely the remedy provided for in section 9-620: acceptance of collateral in full
satisfaction of the debt. The trial court’s finding was waiver by a different name.
¶ 119 Our conclusion is best exemplified by Quigg’s counsel’s arguments to the trial
[SEGMENT 13]
court on this issue. Counsel informed the trial court that because the parties entered into a
nonrecourse note and pledge agreement, the court’s judgment declaring Quigg the owner of the
stock fully resolved the dispute between the parties. All of Saleem’s debts and obligations under
the agreement terminated, and he was no longer liable on those agreements in any respect. Counsel
stated that nothing in the sale documents gave Saleem any right or claim to any surplus or set-off
in the event of default. The plain language said that all Saleem’s rights immediately vested in
- 35 - Quigg and discharged Saleem. Had Saleem wanted any set-off or surplus, the time to ask for it
was when the parties negotiated the purchase agreement and agreed to this alternative remedy.
¶ 120 Counsel’s statements perfectly describe the remedy of strict foreclosure, which is
codified in the UCC in sections 9-620 to 9-622 (810 ILCS 5/9-620 to 9-622 (West 2028)). It is
impossible to understand Quigg’s acceptance of collateral in full satisfaction of the debt as
anything other than just that. Accordingly, the trial court erred by granting Quigg ownership of the
QEI stock and finding that the UCC permitted the parties to agree that Quigg could elect to retain
the collateral shares in satisfaction of the debt without Saleem’s postdefault consent. This
conclusion is inescapable (1) under the plain language of the UCC, (2) pursuant to long-standing
Illinois case law, and (3) based on uniform precedent across the country.
¶ 121
. The Applicability of Section 9-207
¶ 122 Quigg argued, and the trial court agreed, that section 9-207(b)(4)(C) (810 ILCS 5/9-
207(b)(4)(C) (West 2018)) permitted the parties to agree to the strict foreclosure remedy set forth
in section 8 of the share pledge agreements. Section 9-207(b)(4)(C) provides, “[I]f a secured party
has possession of collateral: *** the secured party may use or operate the collateral *** in the
manner and to the extent agreed by the debtor.” Id. Section 9-207 cannot be interpreted to provide
such a result for two reasons.
¶ 123 First, section 9-207 applies to a secured party’s use and operation of collateral in
its possession either before or after default. Id. § 9-207, UCC Comment 4. By contrast, section 9-
620 deals solely with the acceptance of collateral after default. Id. § 9-620. Well-settled rules of
statutory interpretation provide that a more specific provision controls over a general one. [CITATION]
Because section 9-620 deals with acceptance of collateral in satisfaction of a debt after default, it
is more specific to the facts
- 36 - of this case and controls.
¶ 124 Second, and more simply, section 9-207 deals with the use and operation of
collateral in possession of a secured party as collateral. See 810 ILCS 5/9-102(12) (West 2018)
(Collateral “means the property subject to a security interest or agricultural lien.”). Section 9-207
applies to secured parties in possession of collateral either before or after default and permits “the
secured party [to] use or operate the collateral” in certain ways. (Emphasis added.) Id. § 9-
207(b)(4) (“(A) for the purpose of preserving the collateral or its value; (B) as permitted by an
order of a court having competent jurisdiction[.]”). That is, the secured party who uses or operates
any collateral in its possession continues to hold that collateral on behalf of the debtor as security
for the underlying debt. Although the collateral may be leased, sold, or pledged as security in a
different loan, it never ceases to be collateral owned by the debtor.
¶ 125 This is why section 9-207 explains how any proceeds from that use or operation of
collateral must be handled by the secured party. Some of those provisions speak directly to
possession of stock (id. § 9-207(c)); specifically, they permit the creditor in possession of stock to
retain cash distributions or dividends as further collateral, decreasing the outstanding debt by the
value of those retained funds (id.). What section 9-207(c) permits is for a party in possession to
use the collateral to decrease and eventually eliminate the secured debt, at which point the
collateral and any income generated by that collateral in excess of the debt must be delivered to
the debtor. See id. (providing that a secured party in possession or control of investment property
may hold proceeds received from the collateral as additional security, “shall apply money or funds
received from the collateral to reduce the secured obligation, unless remitted to the debtor,” and
may repledge the collateral as security for a loan); see also id. § 9-207, UCC Comments 3, 5, and
6 (providing a detailed discussion and extensive examples of the meaning and operation of
- 37 - subsection (c) investment property). See also [CITATION], ¶¶ 37-44 (explaining why it was commercially reasonable for the bank in that
case to hold the TIF note, pledged as part of the collateral to secure the loan, and receive interest
payments to reduce the outstanding debt rather than (1) accepting the note in full or partial
satisfaction of the debt or (2) selling or otherwise disposing of the TIF note under section 9-610).
¶ 126 Quigg’s section 9-207 argument is fundamentally at odds with the purpose of that
provision because it seeks to transform the pledged stock from collateral for a loan into Quigg’s
personal property in satisfaction of that loan. Quigg has consistently asserted that the agreement
allowed her to immediately vest in herself all of the rights to the pledged stock to the exclusion of
any interest of Saleem. In short, she would have all the rights in the collateral, and Saleem would
have none.
¶ 127 The correct interpretation of the parties’ agreement is the same one that Quigg
adopted in her June 16, 2022, notice of default. That notice provided that, if Saleem did not cure
his default by July 18, 2022, Quigg would, “[i]n accordance with Paragraph 8 of the Quigg Pledge
Agreement,” exercise her right to “declare that all rights of the Pledgor pursuant to Paragraph 6 of
the Quigg Pledge Agreement shall hereby immediately vest in the Pledgee.” Section 8 provides,
“[U]pon the occurrence of an Event of Default under this Agreement, all
Obligations shall, at the election of the Pledgee, become immediately due and
payable, without notice to the Pledgor, and all rights of the Pledgor in respect of
the Collateral, including all rights of the Pledgor under the terms of Section 6, shall
immediately vest in the Pledgee.” (Emphasis added.)
¶ 128 Case law from around the country demonstrates that when shares of stock are
pledged as collateral, the terms of the pledge agreement are a critical part of determining who may
- 38 - exercise the ordinary rights of a shareholder, such as voting rights and dividends.
¶ 129 The general rule is that the pledgor of the stock has the right to vote the shares held
until the shares are transferred into the name of the pledgee. 810 ILCS 5/7.45 (West 2018).
However, the shareholder rights of stock pledged as collateral may be allocated by agreement of
the parties. In re [CITATION] (“Pledges of investment
securities routinely empower the secured creditor to transfer the pledged securities on the books
of the issuing corporation as a means of enabling the secured creditor to collect dividends and vote
the shares during the term of the loan. Cf., e.g., [CITATION] (although secured creditor exceeded its voting authority under pledge
agreement, provision permitting it to register pledged shares in its own name afforded creditor
ordinary voting rights).”).
¶ 130 Cases directly on point have explained that a creditor’s exercising voting rights,
acceptance of dividends, registering the shares in the creditor’s name, and even pledging or
assigning rights in the stock is typically permitted notwithstanding the fact that the creditor is not
the owner of the shares. See id.; [CITATION] Such actions do not necessarily
demonstrate an intention to exercise ownership of the shares or to retain the pledged collateral
stock in satisfaction of the debt. Id.
¶ 131 Here, the parties specifically agreed that Saleem would retain all voting rights in,
and rights to dividends from, the shares of stock unless and until an event of default. In [CITATION] the court examined
whether the creditor was permitted to exercise voting rights when the security agreement provided
only that the debtor retained voting rights until an event of default. The court held that the creditor
- 39 - was permitted to exercise the ordinary rights incident to being a shareholder in possession of the
stock in the absence of language to the contrary. Id. In [CITATION], the security
agreement pertaining to the pledged shares of stock provided that the creditor, after default, could
transfer the stock into its name and collect all dividends to hold as additional security. In [CITATION],
the agreement between the parties permitted the creditor to sell or
otherwise encumber the collateral stock. And in [CITATION],
[SEGMENT 14]
the court held that the creditor’s exercise of voting rights in the shares the creditor possessed as
collateral and taking control of the operations of the company was not an act of ownership where
the security agreement provided that the debtor could exercise voting rights only until a default
occurred. See also [CITATION]
(stating that Citibank’s exercise of voting rights in pledged collateral in its possession could
have made it liable for damages to the debtor where Citibank exercised those rights to elect
incompetent board members and managers of the company, which significantly harmed the value
of the pledged stock).
¶ 132 Similarly, in this case, the pledge agreement expressly provides that Saleem
reserves the bulk of his shareholder’s rights in the pledged shares, unless and until an event of
default. Section 8 then provides that, in the event of a default, at Quigg’s election, she may exercise
all of Saleem’s rights, including those listed in section 6. That section reserves all of the rights of
ownership to the stock in Saleem except for the ability to transfer, pledge, or encumber; the
agreement does not contain an explicit restriction on Quigg regarding the ability to transfer, pledge,
or encumber; however, the agreement does permit Quigg to place the shares in her own name on
the books of the corporation, which suggests that, although Saleem could not exercise those rights,
Quigg could. A reasonable, and perhaps the most common, interpretation of the plain language in
- 40 - section 8 would be consistent with Quigg’s position that “all rights of the Pledgor” means all of
Saleem’s rights, including ownership, are transferred upon an event of default. This reading is
especially plausible in light of the subsequent phrase, “including all rights of the Pledgor under the
terms of Section 6,” because section 6 contains nearly all of the rights incident to ownership of
stock.
¶ 133 However, the UCC explicitly forbids the automatic transfer of ownership in
satisfaction of a debt without compliance with section 9-620. If we interpreted the provision to
mean what Quigg suggests, we would essentially be required to not give that provision any effect
because it violates the public policy codified in section 9-620. See [CITATION] (holding, after reviewing and citing cases from around the country, that when a security agreement
contains a provision that violates a nonwaivable provision of article 9, courts will enforce the
agreement as if the offending provision did not exist). Given this context, Quigg’s suggested
interpretation is not the most reasonable. Instead, we can give effect to all of the language of
section 8 if we interpret “all rights ***, including all rights *** under the terms of Section 6,” as
encompassing the rights in section 6 and the right to place in the holder’s name, assign, and
encumber. In short, we interpret section 8 as granting all rights in the stock except for the ultimate
right of ownership, which amounts to essentially the unwaivable rights of a debtor listed in section
9-602 (redemption, notice of disposition, right to accounting, right to commercially reasonable
sale or disposition, right to surplus proceeds, and right to damages for violations of article 9). This
reading is entirely consistent with the rights listed in section 9-207(b) and also gives effect to
Quigg’s interpretation of section 8 as containing other rights to use and operate collateral in the
creditor’s possession by agreement of the parties pursuant to subsection (b)(4)(C).
¶ 134
. The Relevance of Section 9-207 to the Appropriate Remedy
- 41 - ¶ 135 Although section 9-207 does not bar Saleem’s counterclaim, it is still important to
our disposition of this appeal. The trial court found that the intention of the parties was to permit
Quigg to take operational control of QEI in the event of Saleem’s default. Quigg alleged in her
complaint that Saleem’s actions were harming the value of her collateral and she needed to be
placed in control of QEI to protect that value. The evidence presented at the preliminary injunction
hearing unequivocally demonstrated that QEI was not running smoothly, mainly due to its cash
flow problems that resulted from Saleem’s breach of the line of credit with Bank of Springfield.
Section 9-207 allows a party to use or operate collateral in any manner provided by court order,
and courts analyzing section 9-207 have permitted secured parties in possession of shares of stock
that were pledged as collateral to exercise the voting rights from those stocks to operate a company
¶ 136
-
while preserving the stock’s status as collateral. [CITATION]
As we earlier explained, section 8 of the pledge agreement can be read consistently
with the antiwaiver provisions, so we interpret it in that manner under the presumption that
contracting parties intend to comply with the law to the extent possible. Section 8 is best
understood as authorizing specific rights for Quigg to use the collateral in a specified manner as
provided for in section 9-207.
¶ 137 Based on the above reading, section 9-207 authorized the trial court to enter the
relief sought by Quigg—namely, to be placed in charge of the company—but Quigg was merely
using and operating the collateral stock as collateral and for the preservation of the collateral on
behalf of Saleem, who continued to be the owner.
¶ 138 The parties agreed that pursuant to the sale documents, starting on January 1, 2019,
Saleem was the sole owner of 100% of the shares of QEI and its president and CEO. The parties
further agree that Saleem pledged the shares of stock as collateral and gave Quigg and Stocker
- 42 - (1) physical possession of the stock certificates and (2) an independent assignment in blank of the
shares back to Quigg and Stocker. The share pledge agreements contained the relevant terms
governing the rights and interests the parties had in those shares of stock. Specifically, unless and
until an event of default, Saleem was entitled to exercise all shareholder rights in the stock, except
he could not assign, pledge, or encumber the stock. The pledge agreements dictated that Quigg
and Stocker, as holders and possessors of the stock, had a mere security interest in the stock as
security for the notes and were required to physically preserve the certificates. Quigg and Stocker
were allowed to register the shares in their names. If an event of default occurred, Quigg and
Stocker could elect to declare the entire indebtedness due and payable and immediately vest all of
Saleem’s rights, including those listed in section 6 of the pledge agreements, in Quigg and Stocker.
¶ 139 Based on the above, Saleem was entitled to control and operate QEI by voting 100%
of the shares, unless and until (1) an “Event of Default,” as defined in the pledge agreements,
occurred and (2) Quigg and Stocker elected to accelerate the debt and vest in themselves Saleem’s
rights under section 6 of the pledge agreements. The trial court was not required to determine
whether Quigg and Stocker were the owners of the stock in order to resolve the dispute and declare
the respective rights of the parties under the terms of the sale documents.
¶ 140 Accordingly, we vacate the trial court’s judgment that Quigg and Stocker were
vested with ownership of the collateral stock. We further conclude that Saleem remains the legal
owner of the collateral stock under the terms of the sale documents, without any of the rights in
section 6, which have now vested in Quigg and Stocker, until Quigg and Stocker (1) properly sell
or otherwise dispose of the collateral as provided in section 9-610, (2) properly seek to retain the
stock in full satisfaction of the debt in compliance with section 9-620, or (3) exercise any other
remedy consistent with the UCC and the pledge agreements. We make clear that nothing in this
- 43 - order prevents the parties from entering into a settlement to resolve their respective claims by agreement.
¶ 141 By affirming the trial court’s placing Quigg and Stocker in charge of QEI, we make no determinations about the effect of Quigg’s and Stocker’s exercising Saleem’s rights to the collateral under section 6 of the pledge agreements on Saleem’s counterclaim for damages or the amount of indebtedness remaining. That is, Saleem claims that he is entitled to the equity he had in QEI based on his payments and the increase in value of the company. On remand, Saleem may further pursue these claims, and Quigg and Stocker may assert any defenses or claims they may have in response.
¶ 142 E. A Declaratory Judgment Action Was Proper
¶ 143 Salem also argues that the trial court erred by not granting his motion for judgment on the pleadings because Quigg’s complaint was not a proper declaratory judgment action and instead was, in fact, a claim for breach of contract. We disagree.
¶ 144 First, given that Saleem disputed both that he defaulted and that Quigg had the authority to take ownership of the collateral, this case is appropriate for a declaratory judgment. The parties are still governed by the purchase contract, and a dispute exists between the parties. Second, Saleem’s counterclaim for breach of contract is sufficient to give the trial court jurisdiction to resolve Quigg’s claims even if they are restyled as breach of contract. See [CITATION]. In short, no reason exists to limit the trial court’s ability to adjudicate the claims the parties have placed before it.
[SEGMENT 15]
¶ 145 F. Motion for Leave To Amend
¶ 146 Saleem also argues that the trial court erred by denying his motion for leave to amend his counterclaims. Because we vacate the trial court’s dismissal of Saleem’s counterclaims,
- 44 - we need not address whether the trial court erred by denying him leave to amend those claims. On
remand, Saleem can seek leave to amend if he so desires, and the trial court can consider that
motion in the normal course of proceedings.
¶ 147 G. Summation of Holdings
¶ 148 The trial court entered summary judgment in favor of Quigg on the issues of
(1) Saleem’s default under section 2(B) of the notes and (2) her ability to take ownership of the
collateral in satisfaction of Saleem’s debt. We conclude that summary judgment on the issue of
Saleem’s default was proper because no genuine issue of material fact exists that he defaulted on
the Bank of Springfield line of credit, received proper notice of that default, and failed to cure it.
We also conclude that the trial court did not err by granting Quigg the ability to exercise Saleem’s
voting rights in the collateral and operate QEI.
¶ 149 However, the trial court did err when it concluded that Quigg became the outright
owner of the collateral without having to comply with section 9-620 of the UCC because the parties
expressly provided for that remedy as part of the sale agreement. Because the UCC expressly
prohibits parties from varying or waiving the provisions of section 9-620, we vacate the trial
court’s dismissal of Saleem’s counterclaim and its entry of summary judgment in favor of Quigg
to the extent that judgment held Quigg had accepted the collateral in satisfaction of the debt.
¶ 150 In short, we have affirmed the portions of the trial court’s judgment that we deem
correct, and any remaining findings of fact or determinations of law are vacated.
¶ 151 Although we remand the case for further proceedings, we make clear that
(1) nothing in this order disturbs Quigg’s current position as head of QEI and (2) we express no
opinion on how the case should proceed on remand. That is, the trial court is free on remand to
continue its order permitting Quigg and Stocker to operate QEI so as to preserve the value of the
- 45 -
====== End of Court Ruling ====== collateral—namely, the 1000 shares of QEI stock owned by Saleem and in the possession and
control of Quigg and Stocker to secure the loan. Further, we express no opinion on the ultimate
outcome of the case, potential remedies, or courses of action with respect to the collateral. We
emphasize that the parties may still avail themselves of the procedures provided in section 9-620
and nothing in this order or the UCC prevents them from negotiating a mutually agreeable
resolution through a settlement agreement. Because such an agreement would be entered into after
default, section 9-620 would authorize the waiver of its various provisions.
¶ 152 III. CONCLUSION
¶ 153 For the reasons stated, we affirm the trial court’s entry of summary judgment in
favor of Quigg on (1) Saleem’s default under the sale documents based on his default on the Bank
of Springfield line of credit and (2) Quigg’s ability to control QEI, vacate all of the trial court’s
other findings and judgments, and remand for further proceedings not inconsistent with this order.
¶ 154 Affirmed in part, vacated in part, and remanded for proceedings not inconsistent
with this order.
- 46 -
2024 IL App (1st) 240344
No. 1-24-0344
Opinion filed June 14, 2024
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
PORTAGE PARK CAPITAL, LLC, ) Appeal from the
an Illinois Limited Liability Company, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
) No. 23 CH 008139
v. )
) Honorable
A.L.L. MASONRY CONSTRUCTION ) Anna Loftus,
COMPANY., INC. d/b/a All Construction Group, ) Judge, presiding.
an Illinois Corporation, )
)
Defendant-Appellee. )
PRESIDING JUSTICE MITCHELL delivered the judgment of the court, with opinion.
Justice Lyle and Justice Navarro concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Portage Park Capital appeals the circuit court’s order compelling arbitration for
all of the issues plaintiff raised and dismissing the case. The issue on appeal is whether the circuit
court erred by determining that the validity of a mechanic’s lien is subject to arbitration. For the
reasons stated below, we hold that the circuit court did not err and affirm. No. 1-24-0344
¶2 I. BACKGROUND
¶3 Plaintiff Portage Park Capital contracted with defendant A.L.L. Masonry Construction
Company to construct a new self-storage building in Chicago, Illinois, for plaintiff. The contract
is a standard form AIA agreement with an arbitration clause that provides as follows:
“If the parties have selected arbitration as the method for binding dispute resolution
in the Agreement, any Claim subject to, but not resolved by, mediation shall be subject to
arbitration which shall be conducted in Chicago, Illinois by a single arbitrator selected by
mutual agreement of the parties.”
A claim subject to arbitration under the contract is defined as
“a demand or assertion by one of the parties seeking, as a matter of right, adjustment
or interpretation of Contract terms, payment of money, extension of time or other relief
with respect to the terms of the Contract. The term ‘Claim’ also includes other disputes and
matters in question between the Owner and Contractor arising out of or relating to the
contract. The responsibility to substantiate Claims shall rest with the party making the
Claim. Claims must be initiated by written notice.”
The parties agreed to submit all claims not resolved by mediation to arbitration.
¶4 Over the course of the parties’ dealings, disputes arose regarding the amount of money that
plaintiff owed defendant. Accordingly, defendant filed a mechanic’s lien for the amount it believed
that it was still owed under the contract. A short time later, plaintiff made a demand for arbitration
regarding the payment of money under the contract and the amount due. This arbitration is
currently duly convened and pending. Plaintiff also filed this action in the circuit court of Cook
County, seeking a declaratory judgment that defendant’s mechanic’s lien “is fraudulent and/or
No. 1-24-0344
false and thus void.” In response, defendant filed a motion to compel arbitration and a section 2-
619 motion to dismiss. The circuit court granted defendant’s motion, dismissing the case and
determining that all claims raised in plaintiff’s complaint were subject to arbitration. This timely
appeal followed. See Ill. S. Ct. R. 303(a) (eff. July 1, 2017).
¶5 II. ANALYSIS
¶6 “A motion to compel arbitration is essentially a section 2-619(a)(9) motion to dismiss or
stay an action in the trial court based on an affirmative matter, the exclusive remedy of arbitration.”
(Internal quotation marks omitted.) [CITATION], ¶ 24. Accordingly, this court “must interpret all pleadings and supporting
documents in the light most favorable to the nonmoving party.” [CITATION], ¶ 28. We review the granting of a motion to compel
arbitration without an evidentiary hearing de novo. [CITATION], ¶ 20.
¶7 A. Arbitrator’s Ability to Consider Lien Validity
¶8 Section 9 of the Mechanics Lien Act provides that “[i]f payment shall not be made to the
contractor having a lien ***, then such contractor may bring suit to enforce his lien in the circuit
court in the county where the improvement is located.” 770 ILCS 60/9 (West 2022). In the early
1900s, the Illinois Supreme Court made clear that this section granted the circuit court exclusive
jurisdiction to enforce a mechanic’s lien. [CITATION]. Several
years later, the supreme court determined that submitting a contract dispute to arbitration does not
waive a party’s ability to seek a mechanic’s lien and that an arbitrator’s decision on the amount
due under the contract would not affect the lien. [CITATION]
No. 1-24-0344
(per curiam). From these holdings, plaintiff contends that the circuit court also has exclusive
jurisdiction to determine the validity of that lien. Defendant does not contest that only the circuit
court may enforce a mechanic’s lien; instead, it asserts that lien validity and lien enforcement are
not equivalent.
¶9 In order to enforce a lien, the party seeking enforcement must prove that the lien is valid.
See [CITATION] 718-19 (2005) (“A mechanic’s lien is valid only if each of the statutory requirements is strictly
observed [citation], and the party seeking to enforce the lien bears the burden of proving that each
requisite has been satisfied [citation].”); [CITATION] 399-400 (1991) (same); [CITATION] 758-59
[SEGMENT 16]
(1989) (same); [CITATION] 549 (1987) (same); [CITATION] 291 (Bankr. N.D. Ala. 2008) (“Before a lien on property can be enforced,
three issues must be addressed: (1) the validity of the lien (because an invalid lien is not
enforceable) ***.”). These cases make clear that lien validity is a prerequisite to lien enforcement.
That is, a court may not enforce a lien unless and until it has been determined that the lien is valid.
Thus, courts have consistently considered lien validity to be an antecedent issue separate from the
enforcement of the lien (rather than a part of enforcement).
¶ 10 Accordingly, the Illinois Supreme Court’s holdings in [CITATION] do not control
here because the issue of whether an arbitrator could consider the validity of a mechanic’s lien was
never presented to either court. While [CITATION] involved a contract dispute, an arbitration clause, and
an allegedly fraudulent lien, the parties there never sought to compel arbitration on the question of
the validity of the lien. Similarly, the supreme court’s holding that “had a lien existed it would not
No. 1-24-0344
have been affected by such an award” does not support concluding that the court intended lien
validity to be nonarbitrable. (Emphasis added.) [CITATION]. The court held only that, in the
context of the case before it, where the arbitrator had decided only the amount due to the plaintiff
in the underlying contract dispute but had not addressed any issues related to the mechanic’s lien,
the arbitrator’s award would have no effect on the lien. Accordingly, [CITATION] and [CITATION] have
nothing to say about what issues parties may arbitrate and provide no support for plaintiff here.
¶ 11 Courts in other jurisdictions have concluded similarly. In Colorado, an appellate court
concluded that “the district court is the proper forum for contesting any disputes as to the
procedural validity of [a] mechanic’s lien” where the validity of the lien was not “put at issue and
decided in arbitration.” [CITATION]. The Utah Supreme Court analyzed the validity of a mechanic’s lien without
considering whether the arbitrator could have ruled on the issue. See [CITATION]. In Connecticut
and Arizona, courts have ruled that a provision in a contract that explicitly reserves the rights of
contractors with respect to statutory remedies under mechanic’s lien laws prevents courts from
compelling arbitration regarding such liens. See [CITATION]. And in Florida, a court
determined that it was error to deny a lien foreclosure when the “arbitrator’s award was silent on
the matter.” [CITATION].1
In contrast, a federal bankruptcy court in Florida concluded that a lien foreclosure fell within an
arbitration clause under Florida law because “there is more than ‘some nexus’ between the dispute and
No. 1-24-0344
However, these cases stand only for the proposition that a trial court may determine the validity of
a mechanic’s lien in certain circumstances, not that it must or that parties to a contract may not
agree to submit the issue to an arbitrator.
¶ 12 Courts in Minnesota, Ohio, and Texas have held specifically that an arbitrator may
determine the validity of a lien. See [CITATION], No. C2-02-266, 2002 WL 31013031,
at *2 (Minn. Ct. App. Sept. 10, 2002); [CITATION], 2021-Ohio-
124, 166 N.E.3d 688, ¶¶ 13-15; [CITATION], 95 S.W.3d 234, 242-43 (Tex. 2002).
Indiana, Michigan, and South Carolina courts have held that mechanic’s lien foreclosures are
broadly subject to arbitration. See [CITATION], 916 N.E.2d 212, 216-17 (Ind. Ct. App. 2009);
[CITATION], No. 359213, 2023 WL 1870446, at *3 (Mich. Ct. App.
Feb. 9, 2023); [CITATION], 747 S.E.2d 461, 466-67 (S.C.
2013). Of the states to have considered the issue, only New York has held that assessing the
validity of a mechanic’s lien is “beyond the power of the arbitrators to determine.” [CITATION], 60 N.Y.S.2d 613, 615 (App. Div. 1946).
¶ 13 This conclusion does not result in tension by providing courts exclusive jurisdiction to
enforce liens but denying courts exclusive jurisdiction to determine whether liens are valid. Courts
have exclusive jurisdiction to enforce any arbitration award—arbitration awards are not self-
executing. See 710 ILCS 5/16 (West 2022) (“The making of an agreement described in Section 1
providing for arbitration in this State confers jurisdiction on the court to enforce the agreement
under this Act and to enter judgment on an award thereunder.”); see also [CITATION]
contract containing the agreement. Indeed, resolution of the issues requires reference to or construction of
the site development contract.” [CITATION]
No. 1-24-0344
Construction Co. v. Brandon Partnership, [CITATION] (recognizing that an
arbitrator “has no power to implement his decisions”); Tamari v. Conrad, [CITATION] (explaining that an arbitration award “must be enforced by a court”). Nevertheless,
courts are frequently prevented from considering the validity of the underlying legal interest at
issue. See, e.g., Buckeye Check Cashing, Inc. v. Cardegna, [CITATION] (“regardless
of whether the challenge is brought in federal or state court, a challenge to the validity of the
contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator”).
¶ 14 This result is consistent with bedrock principles of contract law. The goal in contract law
is to “ascertain and give effect to the intent of the parties.” W.W. Vincent & Co. v. First Colony
Life Insurance Co., [CITATION]. And “an agreement to arbitrate is a matter
of contract.” Salsitz v. Kreiss, [CITATION]. Further, Illinois public policy favors
arbitration. Illinois permits litigants to settle disputes through arbitration because “[a]rbitration is
regarded as an effective, expeditious, and cost-efficient method of dispute resolution.” Royal
Indemnity Co. v. Chicago Hospital Risk Pooling Program, [CITATION] (citing
United Cable Television Corp. v. Northwest Illinois Cable Corp., [CITATION]).
Because the law recognizes arbitrators as sufficiently capable of deciding disputes, if an issue falls
within the scope of an otherwise valid arbitration clause, “judicial review of an arbitral award is
extremely limited.” American Federation of State, County & Municipal Employees, AFL-CIO v.
Department of Central Management Services, [CITATION].
¶ 15 These tenets demonstrate that courts view the act of contracting as volitional and the terms
within a contract as the thoughtful result of a bargained-for exchange. Put more plainly, the terms
of a contract are what the parties voluntarily agreed to. Accordingly, courts should not read limiting
No. 1-24-0344
principles into statutes regarding the issues parties may or may not arbitrate when the legislature
did not expressly provide such a limitation. If it is the intent of the parties to arbitrate a claim,
courts should generally defer to that intent. See [CITATION],
2012 IL App (2d) 111277, ¶ 16 (“whether an issue is subject to arbitration is governed by the
agreement between the parties”). Doing otherwise would trench upon the right of the parties to
contract with one another. See [CITATION] (recognizing a
constitutional right to make and enforce contracts). While the right is subject to limitations, here,
the legislature did not provide a clear, express limitation to that right regarding the validity of a
lien. Accordingly, there is no such limitation.
¶ 16 However, the opposite is also true: parties are not required to submit claims to arbitrators
just because arbitrators are empowered to hear those claims. Instead, agreements to arbitrate are
“matter[s] of contract” and “[t]he parties to an agreement are bound to arbitrate only those issues
which by clear language and their intentions expressed in the language show they have agreed to
arbitrate.” (Internal quotation marks omitted.) [CITATION], 2023
IL 129067, ¶ 29. Accordingly, courts determine the scope of an agreement to arbitrate “using
ordinary contract principles.” Id. ¶ 30. These principles require that “[i]n the absence of an
ambiguity, the intention of the parties at the time the contract was entered into must be ascertained
by the language utilized in the contract itself.” (Internal quotation marks omitted.) Id. Further,
provisions of the contract should not be read in isolation but should be considered in the broader
context of the contract as a whole. Id.
¶ 17 The arbitration agreement at issue covers two types of claims: (1) “a demand or assertion
by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms,
====== End of Court Ruling ====== No. 1-24-0344
[SEGMENT 17]
payment of money, extension of time or other relief with respect to the terms of the Contract” or
(2) “other disputes and matters in question between the Owner and the Contractor arising out of
or relating to the contract.” The language of this agreement closely tracks with what courts have
characterized as a “generic” arbitration clause. See [CITATION]. In Illinois, “courts have generally construed ‘generic’ arbitration clauses broadly,
concluding that the parties are obligated to arbitrate any dispute that arguably arises under an
agreement containing a ‘generic’ provision.” (Emphasis in original.) [CITATION], ¶ 17.
¶ 18 Below, the circuit court determined that the mechanic’s lien arose out of or related to the
contract because, “the questions raised in the complaint *** involve the pay apps, whether they
were overinflated, and the values listed in the subcontractors’ agreements versus what’s on the
mechanic’s lien.” The circuit court explained that, in order to answer these questions, it “would
have to look at requirements under the contract.” To determine the validity of the mechanic’s lien,
the circuit court reasoned that it would need to refer to the parties’ contractual requirements.
¶ 19 The contours of when a dispute “arises out of or relates to” a contract are murky. On one
end of the spectrum, a broad reading of this language could reasonably include anything that would
not have occurred “but for” the existence of the contract. On the other end, a narrow reading could
be limited only to those disputes that involve some “interpretation or construction of the contract.”
While this court has never provided a black-letter rule, courts in other jurisdictions have settled
somewhere in between these options, determining that, for a dispute to arise out of or relate to a
contract, it must “ ‘raise some issue the resolution of which requires a reference to or construction
of some portion of the contract itself.’ ” [CITATION]
No. 1-24-0344
1014 (Fla. Dist. Ct. App. 1996) (quoting [CITATION], 807 P.2d 526, 530 (Ariz. Ct.
App. 1990).
¶ 20 The narrowest reading of “arises out of or relates to” is plainly wrong when considered in
light of Illinois case law. See [CITATION] (agreeing with federal courts that “broad
arbitration clauses do not limit arbitration to the literal interpretation or performance of the
contract”). Illinois’s public policy favoring arbitration militates toward reading “generic”
arbitration clauses broadly. [CITATION]. However, if “generic”
arbitration clauses only reached disputes that involved “interpretation or construction” of a
contract, such clauses would fail to reach disputes that indisputably fall within an arbitrator’s
purview. See, e.g., [CITATION] (holding that “a challenge to the validity of the
contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator”); [CITATION] (concluding that tort claims of breach of fiduciary duty, misappropriation
of business opportunity, and tortious interference with contract, among others, “ ‘[arose] from the
very heart’ of the relationship between [the companies] and are significantly related to the
agreement defining that relationship,” and were thus subject to arbitration); [CITATION] (recognizing the principle that “[w]here an agreement contains a generic
arbitration clause, that clause covers a dispute arising under a subsequent agreement between the
same parties if the original agreement and the subsequent agreement concern the same subject
matter” (citing [CITATION])).
¶ 21 Moreover, if the generic section of the arbitration clause in this case were limited only to
claims that involve interpretation or construction of the contract, the section would be superfluous.
The first section of the clause already extends the arbitration agreement to “a demand or assertion
- 10 - No. 1-24-0344
by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms,
payment of money, extension of time or other relief with respect to the terms of the Contract”—in
other words, claims involving the interpretation or construction of the contract. If the second
section of the clause is limited to the same claims as the first section, there would have been no
need to include it. Given that, “[g]enerally, when interpreting a contract, we must give effect to all
of the contract’s provisions if it is possible to do so,” reading such a redundancy into the agreement
here would be improper. [CITATION], ¶ 51;
see [CITATION], 373 Ill. App. 3d 407, 413 (2007) (“Contractual terms
should be construed so as to avoid the conclusion that other terms are redundant.”).
¶ 22 Instead, at the very least, if resolution of the claims raised in a complaint require the court
to reference the contract, those claims “arise out of or relate to” that contract. Significantly, every
dispute regarding a mechanic’s lien involves some reference to or construction of the contract
because “the liens act becomes a term of every construction contract between the owner and the
contractor for construction of a building.” [CITATION]. Therefore, any reference to the Act is also a reference to
the contract, and without reference to the Act, courts would be unable to resolve disputes related
to mechanic’s liens. But even if this were not the case, the complaint here repeatedly references
the underlying contract and each party’s obligations under the contract. The complaint draws upon
provisions from the contract for support for its claims. Thus, the circuit court could not resolve the
dispute here without reference to the contract. For example, at paragraph 43 of the complaint,
plaintiff claims that defendant falsely and fraudulently swore that “$758,140.00 in Storage
Partitions and Doors was for work to still be performed ***.” In support of this, plaintiff
- 11 - No. 1-24-0344
specifically directs the court to refer to the contractual provision regarding the purchase and
installation of storage partitions and doors.
¶ 23 Additionally, Illinois courts have recognized that “the adjudication of an action to foreclose
a mechanic’s lien involves essentially the same cause of action as that upon which the lien claim
is based.” [CITATION]. Here, the lien claim is based upon a contract dispute between plaintiff and defendant. Thus, the
lien claim is essentially the same cause of action as the contract dispute. Any argument that the
two are unrelated lacks any support in fact or law. Accordingly, the trial court did not err in
concluding that the dispute here arose from or related to the contract.
¶ 24 B. Section 2-619 Motion to Dismiss
¶ 25 Plaintiff next contends that the circuit court procedurally erred when it determined that
resolving plaintiff’s claims would require it to refer to the contract. Plaintiff argues that, because
a section 2-619 motion “admits the legal sufficiency of the complaint” ([CITATION]) and because “[n]o contract interpretation was needed based on
the face of the Complaint,” the circuit court was bound by the complaint. This argument appears
to rely on plaintiff’s mistaken standard for when a claim arises out of or relates to a contract.
However, the circuit court did not need to find, nor did it find, that contract interpretation was
necessary; instead, it found only that it “would have to look at requirements under the contract.”
The complaint on its face directs the court to look at requirements under the contract; therefore,
plaintiff’s argument completely misses the mark.
¶ 26 However, even if the complaint did assert that any reference to the contract in this case
would be unnecessary, the circuit court would not have been obligated to accept the truth of that
- 12 - No. 1-24-0344
assertion. “The defendant does not admit the truth of any allegations in plaintiff’s complaint that
may touch on the affirmative matters raised in the 2-619 motion.” [CITATION]. Accordingly, the party opposing a
motion to compel arbitration “cannot rely on bare allegations alone to raise issues of material fact.”
[CITATION]. Therefore, the circuit
court’s comments, suggesting that it would need to refer to the contract to resolve the claims before
it, were not improper.
¶ 27 III. CONCLUSION
¶ 28 The judgment of the circuit court of Cook County is affirmed.
¶ 29 Affirmed.
- 13 - No. 1-24-0344
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 23-CH-
; the Hon. Anna Loftus, Judge, presiding.
Attorneys Craig Penrose, of Laurie & Brennan LLP, of Chicago, for
for appellant.
Appellant:
Attorneys Frederick J. Sudekum and Jacob R. Coz, of Sudekum, Cassidy &
for Shulruff, Chtrd., and Howard Teplinsky and Mark L. Evans, of
Appellee: Levin Ginsburg, both of Chicago, for appellee.
- 14 - It appears that the provided text for the court ruling is empty. Please provide the part of the court ruling text so that I can process it accordingly by identifying and anonymizing the court ruling citations.
NOTICE
IL App (4th) 230250-U
This Order was filed under
FILED
NO. 4-23-0250 April 11, 2024
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the
IN THE APPELLATE COURT
[SEGMENT 18]
th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
BEHROUZ and JACKELIN AFRAMIAN FAMILY ) Appeal from the
TRUST DATED JULY 1, 1999, as Beneficiary of ) Circuit Court of
Chicago Title Company, Trustee, ) Stephenson County
Plaintiff-Appellant, ) No. 13CH25
v. )
FREEPORT RENAISAANCE LLC a/k/a FREEPORT )
RENAISSANCE, LLC, a Nevada limited liability )
company; E & E MORTGAGE BANKERS )
CORPORATION a/k/a E&E Mortgage Bankers Corp., )
a California corporation; JOSEF SARSHAR; DALIA )
SARSHAR; FREEPORT INDUSTRIAL ROOFING, )
INC., an Illinois corporation; RESTORX OF )
NORTHERN ILLINOIS, a division of Gitz-Meier )
Remodeling Contractor, Inc., an Illinois corporation; )
PCH USA 26, LLC, a California limited liability )
company; MARC MIRBOD; FARIBA )
ATIGHEHCHI; SHAHRAM ELYASZADEH; and )
unknown owners and non-record claimants, )
Defendants, ) Honorable
) Glenn R. Schorsch,
(Fariba Atighehchi, Defendant-Appellee). ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Justices Doherty and DeArmond concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed the trial court’s judgment in favor of defendants after
a bench trial because the judgment was not against the manifest weight of the
evidence.
¶2 This case involves the foreclosure of a “hard money” loan, backed by a mortgage
on Illinois real estate, originating in California between California residents. Plaintiff—the
Behrouz and Jackelin Aframian Family Trust Dated July 1, 1999, as beneficiary of Chicago Title Company, Trustee—seeks to recover a deficiency judgment against defendant Fariba Atighehchi,
personally, based on a guaranty agreement. After the parties filed cross-motions for summary
judgment and the trial court ruled in favor of Atighehchi, the Second District Appellate Court
reversed and remanded, concluding that genuine issues of material fact were present on this record.
[CITATION]
¶3 On remand, the trial court conducted a bench trial and entered judgment in favor of
Atighehchi, concluding that plaintiff failed to meet its burden of proof to show that the facially
ambiguous guaranty agreement was intended by the parties to be a personal guaranty.
¶4 The sole question for this court to resolve on appeal is whether the trial court’s
ruling was against the manifest weight of the evidence. We conclude it was not and affirm.
¶5 I. BACKGROUND
¶6 Given the complexity of this case and the issuance of the Second District’s order
earlier in this case, which provides a detailed background of this case prior to the trial on remand,
we set forth the Second District’s earlier decision to assist the reader in understanding the case
because it is so well written. (We note that Atighehchi is the only defendant on appeal and the only
defendant remaining in the case. Prior to the first appeal, the trial court entered judgment against
all the named defendants except for Atighehchi and Elyaszadeh. On remand, the court entered
judgment against Elyaszadeh following the bench trial, and Elyaszadeh is not a party to this
appeal.) The Second District wrote the following:
“[A. The Facts Giving Rise to the Complaint]
The plaintiff, Behrouz and Jackelin Aframian Family Trust, dated July 1,
, filed this suit to enforce an alleged personal guarantee on a loan, executed by
the three members of *** Freeport Renaissance, LLC. The trial court entered
summary judgment in favor of one of the members of Freeport Renaissance, Fariba
Atighehchi, finding that the guarantee at issue in this case was a corporate guarantee
and was not a personal guarantee from Atighehchi. The plaintiff appeal[ed] from
that order. We reverse and remand for further proceedings.
***
Prior to 2010, 110 FM, LLC, purchased real property located at 1201-1287
West Galena Avenue in Freeport, commonly known as the Freeport Lincoln Mall.
110 FM was equally owned by the defendants, Marc Mirbod and Atighehchi.
Atighehchi was a licensed real estate agent in California. Thereafter, Freeport
Renaissance, a Nevada limited liability company, purchased the property from 110
FM, with a cash contribution from the defendant, Shahram Elyaszadeh, through his
wholly owned company, PCH USA 26, LLC (PCH), a California limited liability
company. As a result of the purchase, Freeport Renaissance was owned 50% by
PCH, 25% by Mirbod, and 25% by Atighehchi. PCH was the manager of Freeport
Renaissance. Atighehchi was responsible for the leasing at the property. At the time
of these transactions, all the members of Freeport Renaissance lived in California.
In 2010, Elyaszadeh approached the plaintiff to obtain a loan. Elyaszadeh
had procured loans from the plaintiff in the past. In previous loans, Elyaszadeh had
signed personal guaranties in favor of the plaintiff. Elyaszadeh, through another
company owned by him, E&E Mortgage Bankers, LLC, had his employee, Allen
Santos, prepare the loan documents. Santos prepared four loan documents: a
promissory note, a security agreement, a deed of trust, and a guarantee (hereinafter
‘Guaranty’).
The Guaranty defined guarantor in the introductory paragraph as ‘Freeport
Renaissance LLC, *** (collectively, the “Guarantor”’).’ The Guaranty also defined
borrower in its recitals as Freeport Renaissance. The Guaranty indicated that
[(1)] the plaintiff was considering making a loan to borrower, [(2)] that the
guarantor desired that the plaintiff extend the loan, and [(3)] that the guarantor was
executing the guarantee to induce the plaintiff to extend the loan to the borrower.
In paragraph 7 of the Guaranty, any notice to the guarantor was to be sent to
Freeport Renaissance at its business address. Paragraph 19a of the Guaranty
provided that ‘[i]f more than one person has signed this Guaranty, it shall be the
joint and several obligation of all such persons.’ Paragraph 19b, indicated that ‘the
term “Guarantor” shall be deemed to refer to any one or both of the parties
constituting Guarantor.’ Paragraph 21 provided that:
‘Each individual whose signature appears below represents and warrants to
the other party that such individual has the full power, authority and legal
right to execute the Guaranty for himself or herself (and/or for any legal
entity on behalf of which he or she signs) and to perform all obligations on
his, her or its part under this Guaranty.’
The Guaranty was signed by Elyaszadeh, as manager of PCH, and by Mirbod and
Atighehchi as ‘individuals.’ The Guaranty was drafted in California and was signed
by Elyaszadeh and Atighehchi in California, and provided that it was subject to
California law. ***
The promissory note, dated November 1, 2010, reflected a $600,000 loan
that was to mature within one year. The maker was defined as Freeport
Renaissance. The note was signed by Elyaszadeh, as manager of PCH, and by
Mirbod and Atighehchi as ‘individuals.’ The security agreement, dated November
1, 2010, defined guarantor and borrower as Freeport Renaissance. It further
provided that ‘Borrower and Guarantor are sometimes individually and/or
collectively referred to herein as “Debtor”.’ In paragraph 7a, it stated that the debtor
was ‘in the case of Guarantor, an individual whose residence is in Los Angeles.’
The security agreement was signed by Elyaszadeh, as manager of PCH, and by
Mirbod and Atighehchi as ‘individuals.’ The deed of trust, which transferred the
deed for the Freeport Lincoln Mall to a trustee (Chicago Title Company) and named
the plaintiff as beneficiary, was signed by Elyaszadeh as manager of PCH and as a
member of Freeport Renaissance. Mirbod and Atighehchi both signed the deed of
trust as members of Freeport Renaissance.
The documents were sent to the plaintiff on October 28, 2010. Prior to
funding the loan, the plaintiff responded via email that it needed personal guarantee
agreements from all the members of Freeport Renaissance. This response was sent
to Elyaszadeh and copied to Santos. Santos responded as follows: ‘Please be
advised that the provided Guaranty Agreement is a “Blanket” personal guarantee
with all three members guaranteeing the loan.’ Nonetheless, the plaintiff required
that Elyaszadeh sign a personal guarantee as an ‘individual.’ Thus, an additional
[SEGMENT 19]
guarantee agreement was drafted and signed by Elyaszadeh as an individual. The
Elyaszadeh guarantee defined the guarantor as Elyaszadeh, individually.
Additionally, as requested by the plaintiff, an addendum to the promissory note was
drafted and signed by Elyaszadeh as the managing member of Freeport
Renaissance.
On November 18, 2010, the loan was funded. The defendants defaulted on
the note by failing to pay all amounts due before the maturity date.
[B. The Trial Court Proceedings]
[1. The Complaint]
On February 13, 2013, the plaintiff filed a verified six-count complaint
against Freeport Renaissance, PCH, Mirbod, Atighehchi, Elyaszadeh[, and other
defendants that had interests or liens on the mortgaged property]. On October 29,
2013, the plaintiff filed an amended complaint to correct the legal description of
the subject property. In its complaint the plaintiff sought foreclosure of the
mortgage (count I) against all the defendants other than Elyaszadeh; collection on
the personal guaranties from PCH, Mirbod, Atighehchi, and Elyaszadeh (counts II
through V, respectively); and foreclosure on the security agreement against
Freeport Renaissance, PCH, Mirbod and Atighehchi (count VI).
[2. The Initial Motion for Summary Judgment and Judgment of Foreclosure]
[a. The Judgment of Foreclosure]
On February 5, 2015, the plaintiff filed a motion for summary judgment.
On May 18, 2015, a judgment of foreclosure was entered. The trial court found that
the total amount due to the plaintiff was in excess of $2.4 million plus interest,
costs, and attorney fees. The trial court entered a personal deficiency judgment
against Freeport Renaissance and PCH, in an amount to be determined at the time
of the confirmation of sale. The trial court also entered [judgments on counts I, II,
and VI against Freeport Renaissance, PCH, and the other defendants with interests
or liens on the property]. Per the agreement of the parties, count VI was dismissed
against Mirbod and Atighehchi. Elyaszadeh, Mirbod, and Atighehchi were reserved
the right to challenge the judgment as it applied to them. Mirbod later settled out of
court and count III was dismissed. Accordingly, count IV against Atighehchi and
count V against Elyaszadeh remained pending on the motion for summary
judgment and hearing was continued on those counts.
[b. The Evidence in Support of Summary Judgment]
In an August 4, 2016, discovery deposition, Elyaszadeh stated that he was
a licensed real estate broker in California. He was the owner and sole shareholder
of a company named E&E Mortgage Bankers, which provided financing for real
estate transactions. His wife was the sole member and manager of Sunrise
Financial, LLC. With respect to the loan from the plaintiff to Freeport Renaissance,
Sunrise Financial was paid a $30,000 loan origination fee and Mortgage Bankers
was compensated $1500 for preparation of the loan documents. Mortgage Bankers’
employee, Allen Santos, prepared all the loan documents. Elyaszadeh stated that he
discussed the terms of the loan with the other members of Freeport Renaissance
and they all agreed to the terms.
In a February 17, 2017, discovery deposition, Santos stated that his
supervisor at Mortgage Bankers was Elyaszadeh and everything Santos did,
including drafting documents, was reviewed by Elyaszadeh. Santos further stated
that, with regard to the Freeport Renaissance loan from the plaintiff, his
understanding was that he was supposed to draft documents such that all three
members of Freeport Renaissance personally guaranteed the loan.
In a September 29, 2016, discovery deposition, Atighehchi stated that she
had known Elyaszadeh for about 35 years because he was her father’s friend.
Elyaszadeh, Mirbod and she were all members of Freeport Renaissance. At some
point, Freeport Renaissance had to borrow money to pay taxes and other bills. At
that time, Elyaszadeh was managing Freeport Renaissance. Elyaszadeh negotiated
the loan from the plaintiff. She had never met or talked to the plaintiff and never
asked Elyaszadeh about the terms of the loan. Atighehchi acknowledged that she
had agreed to get a loan from the plaintiff for Freeport Renaissance. She did not
read the entire note before she signed it—she just looked at the first and last pages.
She did not know who drafted the note. She acknowledged that she signed the deed
of trust the same day as the note. She did not know who drafted it and did not review
the document before she signed it. She acknowledged that she signed the deed of
trust as a member of Freeport Renaissance. She also acknowledged that she signed
the Guaranty in her individual capacity but stated that she believed the guarantor
was Freeport Renaissance. She believed that the term ‘an individual’ next to her
signature referred to the fact that she was an individual member of Freeport
Renaissance. She stated that she never would have personally guaranteed the note.
In a July 18, 2016, video deposition, Behrouz Aframian testified that, prior
to the loan at issue in this case, he had negotiated two other loans with Elyaszadeh.
Both of those loans were personally guaranteed by Elyaszadeh even though
Elyaszadeh was not the borrower. Elyaszadeh did all the legal work and paperwork
on the two previous loans and received points from the borrower. Aframian did not
remember if he paid Elyaszadeh for those services. Relative to the loan related to
Freeport Renaissance, Elyaszadeh told him that the note would be personally
guaranteed by all three members of Freeport Renaissance. His understanding was
that this would be a personal loan to the three members of Freeport Renaissance.
He did not believe that he was loaning money to Freeport Renaissance. Aframian
testified that when he received the loan documents, he did not review them. He
relied on Elyaszadeh’s personal representations and believed he was receiving a
personal guarantee.
[3. The Cross-Motion for Summary Judgment and Trial Court’s Ruling]
On June 27, 2017, the plaintiff filed a brief in support of its motion for
summary judgment as to counts IV and V, seeking judgment on the personal
guaranties of Atighehchi and Elyaszadeh respectively. On July 3, 2017, Atighehchi
filed a cross motion for summary judgment on count IV. A hearing was held on the
motions on October 4, 2017. ***
On January 22, 2018, the trial court presented its decision in court. The trial
court found that the additional guarantee signed by Elyaszadeh as an individual and
naming him as the guarantor was specific and unambiguous. The trial court granted
the plaintiff’s motion for summary judgment against Elyaszadeh on count V. With
respect to Atighehchi, the trial court found that the Guaranty was ‘sloppy.’ The trial
court acknowledged that the plaintiff wanted a personal guarantee from all three
members of Freeport Renaissance, but found that it did not get it. The trial court
noted that Santos’ email stated that the guarantee was a ‘blanket personal guaranty
with all three members.’ The trial court found that the term ‘members’ was used to
guarantee the loan and it applied to Freeport Renaissance, not the members
individually. The trial court further found that the term ‘individual’ next to
Atighehchi’s signature on the Guaranty did not control the capacity in which the
document was signed. The trial court noted that the Guaranty listed Freeport
Renaissance as the guarantor and that Atighehchi was not listed anywhere in the
document as an individual. Further, the document referred only to a singular
guarantor, and did not use the plural ‘guarantors.’ The trial court thus granted
summary judgment on count IV in favor of Atighehchi ***. The plaintiff filed a
timely notice of appeal.” [CITATION], ¶¶ 2-
.
¶7 C. The Second District Appeal
¶8 On appeal, the Second District summarized plaintiff’s arguments as follows:
“[T]he plaintiff argues that the trial court erred in granting summary judgment in
favor of Atighehchi on count IV. The plaintiff argues that the Guaranty is
ambiguous and interpreting it to find that Freeport Renaissance was guaranteeing
its own debt is an absurd result. Further, the plaintiff argues that the uncontested
extrinsic evidence supports a conclusion that the parties intended that Atighehchi
would be personally liable on the Guaranty.” Id. ¶ 19.
The appellate court explained that, based on the agreement of the parties and the terms of the
Guaranty, California substantive law applied, but the court would be following Illinois procedural
law. [CITATION] ¶ 20.
¶9 The Second District concluded that “the trial court erred in granting summary
judgment in favor of Atighehchi because the Guaranty [was] ambiguous and the extrinsic evidence
- 10 - raise[d] genuine issues of material fact.” [CITATION] ¶ 24. In its analysis, the court wrote the following:
“First, the Guaranty is ambiguous on its face. While the Guaranty defines the
[SEGMENT 20]
guarantor as ‘Freeport Renaissance LLC,’ the signature block contains no reference
to Freeport Renaissance. Elyaszadeh signed as the manager of PCH and Mirbod
and Atighehchi each signed as ‘an individual.’ Thus, none of the signatures aligned
with the named Guarantor. Further, paragraph 19b of the Guaranty states that ‘the
term “Guarantor” shall be deemed to refer to any one or both of the parties
constituting Guarantor.’ This implies that there are two parties that are guarantors.
Further, paragraph 9 indicates that the Guaranty would be binding upon ‘the
executors, administrators, personal representatives, legatees, heirs, successors and
permitted assigns of Guarantor.’ This language indicates that the Guaranty is a
personal guaranty, which is at odds with Freeport Renaissance being a corporate
guarantor.
Additionally, a provisional examination of the extrinsic evidence also
reveals some ambiguity. The guarantor is defined in the Guaranty as Freeport
Renaissance, LLC. However, the Guaranty was executed along with other
instruments including a note, a deed of trust and a security agreement. The security
agreement named the guarantor as Freeport Renaissance but defined the guarantor
as ‘an individual whose residence is in Los Angeles County.’ Further, it was
seemingly absurd for the parties to execute a guaranty with Freeport Renaissance
as the guarantor since Freeport Renaissance was also the borrower on the
promissory note. Generally, a guarantor is a separate third party, not the borrower.
Finally, Atighehchi signed the deed of trust as a member of Freeport Renaissance
- 11 - and if the parties intended for the Guaranty to be a corporate guaranty, they could
have signed it the same way.
We thus turn to the extrinsic evidence to interpret the contract. If the
extrinsic evidence were not conflicting, summary judgment would be proper.
[CITATION.] However, the extrinsic evidence is conflicting and there are genuine
questions of material fact which preclude the entry of summary judgment for either
party. While Atighehchi argues that the parties’ intent was that the Guaranty serve
a corporate guaranty, the depositions of Santos and Aframian indicate that the
parties intended that it be a personal guarantee from all three members of Freeport
Renaissance. Further, while ambiguities in a contract should normally be construed
against the drafter, it is unclear whether Mortgage Bankers and Santos were drafting
the documents on behalf of the plaintiff, as in previous loan transactions, or whether
they were drafting the loan documents on behalf of Freeport Renaissance and its
members. If Santos and Mortgage Bankers were drafting the documents on behalf
of Freeport Renaissance, there is a question as to whether Santos was acting on
behalf of Atighehchi. In her deposition, Atighehchi stated that she did not authorize
Santos to act on her behalf, but the record also indicates that she acquiesced in
allowing Elyaszadeh to obtain the loan from the plaintiff on behalf of Freeport
Renaissance and to determine the terms of the loan. Because the Guaranty is
ambiguous and there are genuine questions of material fact, the trial court erred in
granting summary judgment in favor of Atighehchi.” [CITATION] ¶¶ 24-26.
¶ 10 The Second District reversed and remanded for further proceedings. [CITATION] ¶ 33.
¶ 11 D. The Bench Trial and Trial Court’s Ruling
- 12 - ¶ 12 In September 2022, the trial court conducted a bench trial on count IV of the
amended complaint. Although the majority of the evidence was consistent with the earlier
described deposition testimony, the parties presented some critical new evidence that responded
to and addressed the ambiguities and questions of fact identified by the Second District in is Rule
23 order. Similarly, the trial court relied heavily on that order in its written ruling, and its findings
primarily addressed the same ambiguities and questions of fact.
¶ 13 In February 2023, the trial court entered a written order entering judgment in favor
of Atighehchi and finding that plaintiff failed to meet its burden of proof to show that the parties
mutually intended for the Guaranty to personally bind Atighehchi. Because the court’s detailed
written judgment thoroughly explained (1) the relevant evidence that formed the basis for the
court’s factual findings and (2) the reasoning of the court’s ruling, we set forth the court’s order at
length.
“The defense argues and this Court agrees that the parameters of the Court’s
ability to analyze and interpret the Guaranty’s signature block is not limited to the
four corners of the document. Under Section 1642 of the California Civil Code,
‘Several contracts relating to the same matters, between the same parties, and made
as parts of substantially one transaction, are to be taken together.’ Cal. Civ. Code
§ 1642. This Court must also consider the other contracts relating to this loan
transaction between Plaintiff and Freeport Renaissance: the Promissory Note, the
Security Agreement, the Environmental Indemnity Agreement, and the Deed of
Trust.
In this case, the parties stated objective intent is in evidentiary conflict. In
his deposition and at trial, Plaintiff [(Aframian)] stated he would not have lent the
- 13 - money without a personal guarantee. He asserted he always requires a personal
guaranty to lend money. At trial, Defendant [(Atighehchi)] under oath stated she
would never have borrowed the money from Plaintiff if a personal guarantee was
required. Obviously, in accordance with California law, the subjective intent of one
of the parties would not be enough to carry the day.
Additionally, the evidence surrounding the drafting of the loan documents
(and for which party the doctrine of contra proferentem applies because of those
ambiguities) is in dispute. Because of these factual disputes, in this case, the Court
may also consider extrinsic evidence beyond the language of the related
transactional documents.
It is important to detail the facts as they pertain to the subject property and
the specific loan at issue. Plaintiff, though a jeweler by trade, has acted as a lender
in many other loan transactions. In most of these transactions, Elyaszadeh has acted
as the go between. When parties seeking a loan through non-conventional means
are in search of a lender, Elyaszadeh establishes a connection between those
potential borrowers and Plaintiff. This relationship between those parties is not new
and has been in existence for many years.
These types of financially non-invasive loan transactions were referred to
in this case as ‘hard money’ loans. Such loans, though not rising to the level of
‘loan sharking’ where exorbitant interest rates are attached, do carry higher rates of
interest than commercial loans, but, more importantly, they do not fall under the
typical commercial lending institutions governance where standard and customary
security requirements are necessary. For example, for approval and acceptance by
- 14 - a ‘hard money’ lender, an estoppel certificate is not necessary. In this case,
Defendant was not even asked to provide a birth certificate, credit report, financial
statement or driver’s license.
The evidence in this case also showed that when Plaintiff would make ‘hard
money’ loans and Elyaszadeh was involved, it was common practice for Plaintiff
to have Elyaszadeh vouch for the borrowers by having him sign his own personal
guaranty in Plaintiff’s favor. Defendant highlighted this practice through a prior
‘hard money’ loan transaction that occurred on October 30, 2009, in which Plaintiff
loaned $800,000 to Del Capital Development LLC, Albert Delshad and Barbara
Jane Delshad. See Defendant’s Exhibit 14 (Del Capital/Delshad Promissory Note
and Security Agreement). This Note was supported by three personal guarantees: a
personal guaranty by Shahram Elyaszadeh (Exhibit 16), a personal guaranty by
Barbara Jane Delshad (Exhibit 17), and a personal guaranty of Albert Delshad
(Exhibit 18).
Based on the history of their ongoing business relationship, Elyaszadeh
would normally be compensated for helping establish new connections for ‘hard
money’ loans and drafting the loan documents that Plaintiff required. In the case at
hand, Elyaszadeh was paid $30,000.00 as a loan origination fee for bringing the
parties together and an additional $1,500.00 for loan document preparation. As
Defendant points out, Defense Exhibits 16, 17 and 18 involve the abovementioned
Del Capital loan documents that include guaranty agreements substantially similar
to the template language used in the Freeport Renaissance Guaranty and Elyaszadeh
Guaranty. It should be obvious that Elyaszadeh, or agents within his control, were
- 15 - ```
creating loan documents from their own word processing applications by deleting
old borrowers’ names and adding new borrowers’ names and cutting and pasting
paragraphs and tailoring clauses that fit each particular loan. Defendant’s Exhibit
#7 is an example of that practice where in paragraph A., Albert Delshad (from
[CITATION]) is incorrectly named as the Borrower.
In accordance with the history of the case as detailed by the [CITATION]
in its Rule 23 Order, in 2010, Elyaszadeh approached Plaintiff to obtain a loan for
the Freeport Renaissance, LLC owned property located in Freeport, Illinois.
[SEGMENT 21]
Elyaszadeh, through another company owned by him, E&E Mortgage Bankers,
LLC, had his employee, Allen Santos, prepare the loan documents. Santos prepared
four loan documents: a promissory note, a security agreement, a deed of trust, and
a guarantee. As stated earlier, these loan documents were substantially similar to
the Del Capital loan documents.
[(The trial court described the Guaranty and loan documents consistent with
the [CITATION].)]
***
Typically, ambiguities in a contract should normally be construed against
the drafter. The evidence in this case is unclear whether Mortgage Bankers and
Santos were drafting the loan documents on behalf of Plaintiff, as in previous loan
transactions, or whether they were drafting the loan documents on behalf of
Freeport Renaissance and its members, including Defendant. If Santos and
Mortgage Bankers were drafting the documents on behalf of Freeport Renaissance,
there is a question as to whether Santos was acting on behalf of Defendant.
- 16 -
``` Defendant stated that she did not authorize Santos to act on her behalf, but the
record also indicates that she allowed Elyaszadeh to obtain the loan from Plaintiff
on behalf of Freeport Renaissance and to determine the terms of the loan.
The email communications between Plaintiff and Santos, who was not an
attorney and employed by Elyaszadeh at the time the loan documents were
prepared, are directives from Plaintiff. Defendant had known Elyaszadeh for a
number of years prior to the origination of the loan at issue through his relationship
with her father. But it was not shown at trial that she, in any way, had a hand in the
preparation of the loan documents. The process used in the matter before the Court
was nearly indistinguishable from [the] process used in many prior transactions that
involved Plaintiff and Elyaszadeh, but for the substitutions of new names and
amounts and, this was Defendant’s first loan ever consummated with Plaintiff.
These loan documents were used on multiple occasions previously by Plaintiff and
Defendant had only seen them once.
Plaintiff had testified he did not read the documents, but Defendant, an
experienced Beverly Hills, California Real Estate professional, also had said she
did not read the loan documents before she signed them—she just looked at the first
and last pages. Defendant did not know who drafted the note. She acknowledged
that she signed the deed of trust the same day as the note. She did not know who
drafted it and did not review that document before she signed it. She acknowledged
that she signed the deed of trust as a member of Freeport Renaissance. She also
acknowledged that she signed the Guaranty in her individual capacity but stated
that she believed the guarantor was Freeport Renaissance. She believed that the
- 17 - term ‘an individual’ next to her signature referred to the fact that she was an
individual member of Freeport Renaissance. Again, she stated that she never would
have personally guaranteed the note.
***
This portion of the Appellate Court ruling and directions bears repeating:
A court’s paramount consideration in construing a contract is the parties’
objective intent, as evidenced by the plain language of the contract, rather
than the subjective intent of one of the parties (emphasis added).
The extrinsic evidence showed that it was not just one of the parties’ subjective
intent, but at a minimum two, Defendant and Mirbod. Again, Elyaszadeh had stated
he informed Plaintiff that Defendant and Mirbod would not execute personal
guarantees. And, Plaintiff required Elyaszadeh to execute his own personal
guaranty that identified Elyaszadeh as the guarantor and borrower.
The Court agrees with the Defendant that Plaintiff’s lack of diligence and
overt carelessness caused what uncertainty may continue to exist in this transaction.
Again, Plaintiff testified that he did not even read the substance of the documents
because they were ‘too heavy.’ Plaintiff testified that he neither spoke to Defendant
directly nor asked for any of her personal financial statements to demonstrate
creditworthiness. Plaintiff testified he only read two things of a document: the title
and the signature. Therefore, the totality of the evidence did not show by a
preponderance of the evidence standard, that there was a meeting of the minds
between Plaintiff and Defendant and that there was a mutual intent for Defendant
to personally guarantee the underlying note at the time the contract was formed.
- 18 - Defendant correctly asserts that: [t]he Guaranty explicitly identifies the
Guarantor as ‘FREEPORT RENAISSANCE LLC, a Nevada Limited Company.’
This identification begins in the second line on the first page of the document.
‘Freeport Renaissance’ is highlighted in bold, capitalized font, to set it apart from
the other language in the document. In bold, capitalized font, the Guaranty also
identifies the Borrower as ‘FREEPORT RENAISSANCE LLC, a Nevada Limited
Company.’ This identification of the Borrower immediately occurs in the second
paragraph on the first page of the document, approximately one (1) inch below the
identification of the Guarantor. References to Freeport Renaissance as the
Guarantor appear not once, not twice, but fifteen (15) times throughout the
agreement. Not only does the Guaranty define Freeport Renaissance as Guarantor
at the outset, the document labels itself the ‘Freeport Renaissance LLC Guaranty’
prominently at the bottom of every single page. In the ‘Notices’ section in
paragraph 7, the Guarantor is once again identified as ‘FREEPORT
RENAISSANCE LLC,’ in bold, capitalized font.
The Appellate Court provided guidance on this issue in that the Guaranty
was executed along with other instruments including a note, a deed of trust and a
security agreement. The security agreement named the guarantor as Freeport
Renaissance but defined the guarantor as ‘an individual whose residence is in Los
Angeles County.’ The extrinsic evidence at trial identified more than one party or
individual as having residence in California. Also, the identical language was
included in the Del Capital documents and the only guarantor appearing on both
documents was Elyaszadeh.
- 19 - Additionally, the Appellate Court opined that: it was seemingly absurd for
the parties to execute a guaranty with Freeport Renaissance as the guarantor since
Freeport Renaissance was also the borrower on the promissory note. Generally, a
guarantor is a separate third party, not the borrower. Finally, Defendant signed the
deed of trust as a member of Freeport Renaissance and if the parties intended for
the Guaranty to be a corporate guaranty, they could have signed it the same way.
Defense argues: [w]hile the Deed of Trust does contain different language;
this Court cannot ignore the manner in which ‘an individual’ follows Defendant’s
name in the Promissory Note, the Security Agreement, and Environmental
Indemnity Agreement. In those documents, there is no dispute that she signed her
name in her capacity as an individual member on behalf of Freeport Renaissance.
So even with the discrepancy in the Deed, Defendant urges the Court to interpret
‘an individual’ following Defendant’s name in the Guaranty as signifying her
capacity as an individual member on behalf of Freeport Renaissance, just as with
the other related transactional documents.
***
*** Even though having [a] corporate guarantee instead of [a] personal
guaranty may seem absurd, the extrinsic evidence introduced at trial did give
credence to the practice being common in the State of California.
At trial Attorney Wallace testified (remotely) that in California it is not
uncommon that lenders require borrowers to also guarantee the underlying
indebtedness. When the borrower and guarantor are the same, or the same in
principle, these are referred to as ‘sham guarantees’ by California courts. Wallace
- 20 - explained that ‘hard money’ lenders like Plaintiff require borrowers to not only sign
the notes, but also provide guaranty agreements. Additionally, he opined that ‘hard
money’ lenders do not fully understand that doing so amounts to a redundant
guaranty agreement. Per Wallace, this is a customary practice in California.
Also, in applying fundamental California principles, ‘A contract must
receive such an interpretation as will make it lawful, operative, definite, reasonable,
and capable of being carried into effect, if it can be done without violating the
intention of the parties.’ Cal. Civ. Code § 1643. In this case, Plaintiff has failed to
prove by a preponderance of the evidence that the intent of the parties was mutually
agreed to.
Therefore, it is this Court’s opinion based on the totality of the evidence,
that Defendant had no hand in the creation of the loan documents. Furthermore, she
did not ask they be altered in any way and she did nothing more than sign her name
once those documents were presented to her. Plaintiff, on the other hand, had
engaged in a long-term mutually beneficial business relationship with Elyaszadeh
that pre-existed the $600,000.00 loan at issue. Loan documents (nearly identical to
this case’s boilerplate forms) had been created and used for the joint benefit of
Plaintiff and Elyaszadeh, and because Plaintiff was or should have been very
familiar with the loan documents and since he used his authority to demand changes
to these loan documents: that [it] was Plaintiff and not Defendant who took on the
role of the drafter. And, in accordance with application of California law, any
ambiguity in a contract should be construed against the drafter. [CITATION.]
Finally, ‘[w]ords in a contract which are wholly inconsistent with its nature,
[SEGMENT 22]
- 21 - or with the main intention of the parties, are to be rejected.’ Cal. Civ. Code § 1653.
The operative words here are ‘guarantor’ and ‘an individual.’ The Guaranty
executed by Defendant and signed by her as ‘an individual’, was approved and
accepted by Plaintiff for purposes of funding this $600,000.00 loan. The Guarantor
was identified numerous times throughout the document, solely, specifically and
unequivocally as Freeport Renaissance LLC. In addition, paragraph 9 of the
Guaranty that indicates that the Guaranty would be binding upon ‘the executors,
administrators, personal representatives, legatees, heirs, successors and permitted
assigns of Guarantor.’ The Appellate Court previously opined, for summary
judgment purposes, that this language indicates that the Guaranty is a personal
guaranty, which is at odds with Freeport Renaissance being a corporate guarantor.
But, there is additional language in the Guaranty that provides much needed clarity
and in the eyes of this Court, settles the question.
As previously stated, paragraph 21 of the Guaranty states: [e]ach individual
whose signature appears below represents and warrants to the other party that such
individual has the full power, authority and legal right to execute this Guaranty for
himself or herself (and/or for any legal entity on behalf of which he or she signs)
and to perform all obligations on his, her or its part under the Guaranty. This
language, however absurd in this context in Illinois, allowed Defendant to properly
sign as ‘an individual’ and thus bind the legal entity, Freeport Renaissance LLC, to
its terms. This contractual act was established at trial as being a common practice
in California, and therefore not so absurd at the time of the formation of the
contract.” (Emphases in original.)
- 22 - ¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 Plaintiff appeals, arguing that (1) the trial court erred by finding the Guaranty and
Atighehchi’s signature as “an individual” was ambiguous under California law and (2) the court’s
conclusion that the parties intended Atighehchi to sign as a member of Freeport Renaissance was
against the manifest weight of the evidence. We disagree.
¶ 17 A. Plaintiff’s New Arguments Are Forfeited
¶ 18 As an initial matter, we note that plaintiff argues on appeal that the trial court erred
by finding that the guaranty was ambiguous because various provisions of the California
Commercial Code required it to presume that Atighehchi’s signature as “an individual” was an
“anomalous indorsement,” making her an “accommodation party” that is personally liable on both
the note and the Guaranty. Atighehchi responds that these arguments were not raised in the trial
court or at any point in the prior litigation and are therefore forfeited. We agree with Atighehchi.
¶ 19 In essence, plaintiff argues that certain statutory provisions control how the trial
court, and this court, should construe Atighehchi’s signature on the loan documents. However,
plaintiff did not cite these statutes either in the trial court or to the Second District during the prior
appeal. Instead, in its written closing argument to the trial court, plaintiff conceded that the
guaranty was ambiguous as the Second District concluded. Accordingly, a litany of legal doctrines
bar plaintiff from raising these new arguments for the first time in this appeal, such as the law-of-
the-case doctrine, acquiescence, invited error, and forfeiture.
¶ 20 Most simply, we conclude that plaintiff forfeited these arguments by failing to raise
them before the trial court during the bench trial. Because it would be unfair to Atighehchi and the
trial court to consider these new arguments for the first time in this appeal, we hold plaintiff to that
- 23 - forfeiture and consider only whether the trial court’s findings were against the manifest weight of
the evidence.
¶ 21 B. Whether the Trial Court’s Findings Were Against
the Manifest Weight of the Evidence
¶ 22 Before proceeding to the analysis of the trial court’s judgment, we note that plaintiff
mischaracterizes the trial court’s ruling when it asserts that the court found that the parties intended
for Atighehchi to sign in a representative capacity as part of a corporate guarantee and that she did,
in fact, sign in such a capacity. To the contrary, the trial court ruled that plaintiff failed to meet its
burden of proof that the parties mutually intended the Guaranty to be a personal guaranty. That is,
the court did not make an affirmative finding regarding what the parties intended but instead
concluded that plaintiff failed to meet its burden of proof to recover against Atighehchi on the
Guaranty.
¶ 23
. The Applicable Law
¶ 24 Throughout this case, the parties have agreed that Illinois law governs all
procedural matters and California law applies to all the substantive legal issues.
¶ 25 a. The Applicable Illinois Procedural Law and Standard of Review
¶ 26 This case fundamentally involves contract interpretation, given that the central
issue is whether the parties intended for Atighehchi to be personally liable under the terms of the
Guaranty, which she signed as “an individual.” The interpretation of contracts presents an issue of
law that appellate courts review de novo. [CITATION], ¶ 15, 186 N.E.3d 393.
¶ 27 However, the Second District previously held that the Guaranty was ambiguous
both on its face and after considering the limited extrinsic evidence available at summary
- 24 - judgment. On remand, the trial court conducted a bench trial to consider all the extrinsic evidence,
as mandated by the Second District’s order, to determine the meaning of the contract and the
intention of the parties. Accordingly, the applicable standard of review for this appeal is whether
the trial court’s factual findings were against the manifest weight of the evidence. See [CITATION], 2015 IL App (1st) 123753, ¶ 33, 30 N.E.3d 670 (“The interpretation of contracts
generally is subject to a de novo standard of review, but the factual findings that inform this
interpretation are given deference on review and are to be reversed only where they are against the
manifest weight of the evidence.”); see also [CITATION], 2023
IL 129067, ¶ 31, 226 N.E.3d 1266 (explaining that de novo review is appropriate when interpreting
an arbitration agreement “where there was no evidentiary hearing or findings of fact”).
¶ 28 Generally, the standard of review following a bench trial is whether the trial court’s
order or judgment is against the manifest weight of the evidence. [CITATION], 2011 IL 111871, ¶ 12, 965 N.E.2d 393. “A judgment is against the manifest weight of
the evidence only when the findings appear to be unreasonable, arbitrary, or not based on evidence,
or when an opposite conclusion is apparent.” [CITATION], 2016 IL 119181, ¶ 23,
50 N.E.3d 643. “The manifest weight of the evidence standard affords great deference to the trial
court because the trial court is in a superior position to determine and weigh the credibility of the
witnesses, observe witnesses’ demeanor, and resolve conflicts in their testimony.” [CITATION], 2017 IL App (1st) 161765, ¶ 59, 82 N.E.3d 763. The appellate court therefore
does not substitute its judgment for that of the trial court and will not overturn a trial court’s
findings merely because it does not agree with the lower court or because it might have reached a
different conclusion had it been the trier of fact. [CITATION], 2014 IL
App (4th) 130901, ¶ 38, 14 N.E.3d 1245. Accordingly, the trial court’s judgment will be affirmed
- 25 - provided the record contains any evidence supporting it. [CITATION]
¶ 29 b. The Applicable California Substantive Law
¶ 30 In its written order, the trial court heavily—and properly—relied on the Second
District’s statements of California law from the prior appeal, and we do the same. See [CITATION]
¶ 31 The Second District summarized the applicable law as follows:
“Under California law, the fundamental goal of contract interpretation is to
give effect to the mutual intent of the parties. [CITATION]
(Cal. 2012)) and if the contractual language is clear and explicit, and does not
involve an absurdity, it governs (Cal. Civ. Code § 1638). The language in a contract
must be construed in the context of the instrument as a whole and in the
circumstances of the case. [CITATION] A court’s paramount
consideration in construing a contract is the parties’ objective intent, as evidenced
by the plain language of the contract, rather than the subjective intent of one of the
parties. [CITATION] Any ambiguity
in a contract should be construed against the drafter. [CITATION]
- 26 - If the meaning of the contract language is in dispute, the trial court may
provisionally consider extrinsic evidence to determine the parties’ intent only
where it is relevant to prove a meaning to which the language is reasonably
[SEGMENT 23]
susceptible. [CITATION]. If the court determines that the
language is reasonably susceptible to more than one interpretation, the contract is
ambiguous and the court must determine what construction is to be placed on the
ambiguous language by applying the standard rules of interpretation. [CITATION].
The extrinsic evidence is then admitted to aid in interpreting the contract.
[CITATION].”
¶ 32
. This Case
¶ 33 a. The Alleged Absurdity of a Redundant Corporate Guarantee
¶ 34 Plaintiff argues that the trial court’s decision was erroneous because accepting
Atichehchi’s interpretation of the agreement creates the absurd result that Freeport Renaissance
executed a meaningless guarantee when it was already directly liable on the note. Regarding this
issue, the trial court heard competing experts testify about the standard practices of lenders in
California and the prevalence of “sham guarantees.” The court explicitly found Wallace,
Atichehchi’s expert, credible and persuasive on those issues. The court noted that the Second
District suggested that it would be absurd to have a corporate guarantee when the corporation was
already liable on the note but concluded that the evidence presented at trial—specifically,
Wallace’s testimony about the standard practices of “hard money” lenders in California, who
- 27 - frequently require parties to execute redundant guarantees, mistakenly believing that such
guarantees give them more security on the loan—adequately provided a rational explanation for a
seemingly irrational agreement.
¶ 35 In addition, the trial court relied on evidence of past loan transactions between
Elyaszadeh and Aframian to demonstrate a contrast between the guaranties in those transactions
with the one at issue in this case. In particular, the court noted that in earlier transactions that
Elyaszadeh drafted for Aframian, the guaranties explicitly defined the guarantors by naming the
corporate entities and the individuals who were guaranteeing the loan, specifically identifying
those persons as individuals. By contrast, Atighehchi’s name does not appear anywhere in any of
the Freeport Renaissance loan documents, including the Guaranty. Instead, the loan documents
and the Guaranty repeatedly and conspicuously identified the guarantor as Freeport Renaissance
“a California limited liability company.”
¶ 36 This court has frequently recognized that when the trial court, after being presented
with conflicting testimony, accepts and credits one version of events and rejects the other, we are
at the height of our deference to those findings. [CITATION]; see [CITATION]. Here, the trial court
heard conflicting evidence from two experts about whether redundant corporate guaranties were
common in California for “hard money” loans and accepted Wallace’s testimony as true in its
order. Accordingly, we defer to the trial court’s credibility determination.
¶ 37 b. The Drafter of the Guaranty Agreement
¶ 38 As the Second District noted, resolving the ambiguity of whether the Guaranty
Agreement was intended to personally bind Atighehchi depended, in part, on determining which
party drafted the Guaranty so the terms could be construed against the drafter. On appeal, plaintiff
- 28 - argues that the trial court erred by finding that Elyaszadeh drafted the documents on behalf of
Aframian and not on behalf of Atighehchi or Freeport Renaissance. We disagree.
¶ 39 In its written order, the trial court relied heavily upon the extrinsic evidence of prior
loan transactions involving Elyaszadeh and plaintiff. The court primarily considered two types of
evidence. First, the court explained the testimony describing the regular course of conduct of how
Elyaszadeh connected borrowers with plaintiff, received an origination fee, drafted the documents,
and received a fee for drafting the documents. The court noted that the Freeport Renaissance loan
was drafted and consummated in the same manner, including Elyaszadeh’s receiving a fee for both
originating the loan and drafting the loan documents, which fees were paid out of the proceeds of
the loan.
¶ 40 Second, the trial court examined a 2009 transaction involving Del Capital and
plaintiff, which had guaranties that used nearly identical language but clearly listed the individual
members of Del Capital as guarantors within the express terms of the guarantee. The court noted
that the only guarantor appearing on both documents was Elyaszadeh.
¶ 41 Relying on these two forms of evidence, both of which established a customary
course of conduct between plaintiff and Elyaszadeh, the trial court concluded that Elyaszadeh
similarly drafted the Freeport Renaissance loan documents in this case on plaintiff’s behalf.
¶ 42 c. The Burden of Proof at Trial
¶ 43 In its order, the trial court made clear that plaintiff had failed to meet its burden to
persuade the trial court that the guaranty was mutually intended by the parties to be a personal
guarantee, writing, “At trial, the burden was on Plaintiff to prove by a preponderance of the
evidence that the parties mutually intended for Defendant to personally guarantee the $600,000.00
loan.” The court repeatedly stated, explicitly, that the parties failed to present all of the evidence
- 29 - available or evidence that would have added clarity to resolving the competing interpretations
offered by the parties. The court concluded that “the totality of the evidence did not show by a
preponderance of the evidence standard, that there was a meeting of the minds between Plaintiff
and Defendant and that there was a mutual intent for Defendant to personally guarantee the
underlying note at the time the contract was formed.”
¶ 44 The trial court expressed dissatisfaction with both Aframian and Atighehchi,
lamenting their admissions at trial that, although they were both experienced and sophisticated
actors in real estate transactions, neither one of them read more than the first or last page of what
they were signing or put more than a cursory effort into the deal. They paid little attention to
details, relied on Elyaszadeh instead of consulting their own lawyers, and blindly executed
documents to finalize the loan without bothering to ask questions or know the specifics or details
of what they were agreeing to.
¶ 45 We find the Illinois Supreme Court’s reasoning in [CITATION], helpful. In [CITATION], the supreme court examined
whether a jury entered legally inconsistent verdicts when they found against both drivers, who
were suing each other over a two-car accident. Id. at 625-26. Each driver claimed the other driver
negligently caused the accident and sought damages, and the parties both agreed that the accident
was entirely caused by one of the drivers’ negligent actions. Id. at 626. The supreme court upheld
the jury’s verdicts and rejected the parties’ claims that one party had to be liable. Id. at 647. The
court explained as follows:
“Even though it is clear in the present case that 100% of the responsibility for the
accident must rest, in some unknown proportion, upon either or both of the parties,
it is still possible that the jury found the evidence ‘so conflicting, inconclusive, and
- 30 - unsatisfactory that it simply could not determine from the evidence presented’
[CITATION], whether Redmond was negligent and, if so, to what degree, and whether
Socha was negligent and, if so, to what degree.” Id.
¶ 46 The same reasoning applies here. Although logic dictates that the Guaranty was
either solely a corporate guaranty, a personal guaranty, or both, the trial court was not required to
make a conclusive determination in the absence of sufficient evidence from plaintiff. In other
words, plaintiff, as the party seeking to hold Atighehchi personally liable on the Guaranty, was
required to present adequate evidence to satisfy its burden of proof that the Guaranty bound
Atighehchi personally, thereby entitling plaintiff to a deficiency judgment.
¶ 47 The trial court, after considering all of the evidence, was so dissatisfied with the
evidence presented that it essentially determined that neither party was able to prove that its
interpretation of the Guaranty was correct. For example, the court rejected Atighehchi’s claim that
the deed of trust was fraudulently amended but did point out that the parties had engaged in
improper conduct pertaining to the case and accepted that there was clearly more evidence
available than what the parties presented. Specifically, the court found that “some of the other
improper actions of the parties (covert meetings and phone calls attempting to alter/slant trial
testimony and the like) do give rise to at a minimum a consideration that there was additional
evidence not brought to light at trial.”
¶ 48 Given that the trial court was (1) convinced that the parties had additional evidence
they did not present at trial and (2) dissatisfied with both Aframian and Atighehchi and skeptical
of their testimony, the court was entirely justified to conclude that the evidence presented at trial
was insufficient to resolve the ambiguities presented by the plain language of the Guaranty and
the conflicting extrinsic evidence offered by the parties.
- 31 - ¶ 49 Once the Second District found that the Guaranty was ambiguous on its face and
that the extrinsic evidence available at summary judgment was also ambiguous, plaintiff, as the
party bearing the burden of proof, was obligated to resolve those ambiguities at trial to succeed on
its claim. Critically, in the prior appeal, plaintiff argued that the Guaranty and the extrinsic
evidence presented at summary judgment demonstrated that the Guaranty was unambiguous that
Atighehchi was personally liable. At summary judgment, the court is required to look at the
[SEGMENT 24]
evidence in the light most favorable to the nonmovant. The Second District, after considering the
evidence presented at summary judgment in the light most favorable to each party, held that neither
party had demonstrated that the record was clear and free from doubt that one party was entitled
to judgment as a matter of law.
¶ 50 At trial, the trial court was not required to look at the evidence in favor of either
party or draw inferences in either party’s favor. Instead, the court was a free agent and could accept
or reject the evidence presented as it wished, so long as it did not do so arbitrarily or unreasonably.
Nonetheless, all of the arguments plaintiff raises on appeal pertain to how the trial court could have
viewed the evidence in the plaintiff’s favor. We note that had the court done so, given our
deferential standard of review, it would not be at all surprising for this court to similarly conclude
that a ruling in plaintiff’s favor was not against the manifest weight of the evidence.
¶ 51 Accordingly, we conclude that the trial court’s judgment was not against the
manifest weight of the evidence.
¶ 52 III. CONCLUSION
¶ 53 For the reasons stated, we affirm the trial court’s judgment.
¶ 54 Affirmed.
- 32 -
NOTICE [CITATION]
This Order was filed under
FILED
Supreme Court Rule 23 and is March 29, 2024
NOS. 4-23-1069, 4-23-1197 cons.
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DON J. RHEINHART, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Knox County
TIMOTHY ROY LOVING; LOVING CAPITAL ) No. 23LA6
MANAGEMENT, LLC d/b/a Preservation Wealth )
Management, LLC and/or Preservation Financial )
Management, LLC; KURE ADVISORY, LLC; and )
TRUADVICE, LLC, )
Defendants )
)
(Timothy Roy Loving; Loving Capital Management, )
LLC d/b/a Preservation Wealth Management, LLC and/or ) Honorable
Preservation Financial Management, LLC; and ) William A. Rasmussen,
TruAdvice, LLC, Defendants-Appellants). ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Justices Knecht and Vancil concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed an order denying defendants’ motions to compel
arbitration where plaintiff’s claims fell within the scope of an agreement’s
arbitration provisions.
¶2 Plaintiff, Don J. Rheinhart, filed this action alleging negligence and breach of
fiduciary duties against defendants, Timothy Roy Loving and the various entities associated with
him, including Loving Capital Management, LLC (LCM), Kure Advisory, LLC (Kure), and
TruAdvice, LLC (TruAdvice). Plaintiff voluntarily dismissed Kure from the action. Defendants
Loving, LCM, and TruAdvice moved to compel arbitration of plaintiff’s claims. The trial court declined to compel arbitration. [CITATION] appeal. For the following reasons,
we reverse and remand with directions to stay this action and compel arbitration.
¶3 I. BACKGROUND
¶4 In March 2023, plaintiff filed a complaint alleging as follows. He had an Individual
Retirement Account (IRA) with T. Rowe Price. At some point, he hired Loving, an investment
adviser, to help manage this IRA. In early March 2020, the value of plaintiff’s IRA began to drop
sharply due to a market downturn. Plaintiff and Loving discussed promptly moving plaintiff’s
assets into a stable account to protect them from further market fluctuations. Loving also advised
plaintiff to roll his assets into an account with TD Ameritrade. On March 6, 2020, Loving directed
his assistant to call T. Rowe Price with plaintiff to execute this transfer of assets. During that call,
the assistant did not request for plaintiff’s assets to be liquidated pending the transfer. The assets
were ultimately transferred to a TD Ameritrade account in two transactions, on March 24 and
March 30, 2020. During the time it took to complete the transfer, the value of plaintiff’s
investments decreased significantly. On July 14, 2020, plaintiff, Loving, and Loving’s assistant
called T. Rowe Price. During that call, Loving questioned why T. Rowe Price had not liquidated
or sold plaintiff’s assets on March 6, 2020. A representative of T. Rowe Price responded that T.
Rowe Price had not received a sale or liquidation order. Plaintiff sought to recover his losses from
Loving and the entities that employed him under theories of negligence and breach of fiduciary
duties.
¶5 There is no dispute that on March 31, 2020, plaintiff signed a document titled
“TruAdvice, LLC Investment Management Agreement” (agreement). Loving also signed the
agreement in his capacity as “Investment Adviser Representative.” Plaintiff was designated as the
“Client” in the agreement, and TruAdvice was the “Adviser.” Section 17 of the agreement
contained provisions regarding binding arbitration. The first sentence of this section provided that
“Client agrees with Adviser to resolve any and all disagreements by final and binding arbitration.”
The agreement then listed “Important Disclosures” about the nature of binding arbitration,
including that the parties were “each waiving [their] respective rights to seek remedies in court,
including the right to a jury trial.” (Emphasis in original.) The agreement continued that, except
as it would be void under “applicable law” (emphasis in original):
“Client agree [sic] with Adviser that *** ALL CLAIMS OR CONTROVERSIES,
AND ANY RELATED ISSUES, which may arise at any time between Adviser
(including Adviser’s representatives, members, managers, officers, employees, and
agents) concerning any investment advice, recommendation, or exercise of limited
discretionary authority with respect to any subject matter; any transaction or order;
the conduct of our representatives, members, managers, officers, employees, and
agents; the construction, performance, or breach of this or any other agreement
between you and us, whether entered into prior to, on, or subsequent to the date of
this Agreement; the breach of any common law or statutory duty; or the violation
of any federal or state law of any nature SHALL BE RESOLVED BY BINDING
ARBITRATION RATHER THAN BY A LAWSUIT IN A COURT OF LAW OR
EQUITY.” (Emphases in original.)
The agreement further indicated that “[a]ny arbitration pursuant to this Agreement shall be
conducted in accordance with, and governed by, a mutually agreeable arbitration forum, but, in
the absence of such agreement, then the American Arbitration Association and its Code of
Arbitration Procedure.” The agreement specified it would be “governed by and construed in
accordance with the laws of the State of Florida without regard for conflict of laws principles.”
¶6 Invoking section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS
5/2-619(a)(9) (West 2022)), Loving and LCM moved to compel arbitration and dismiss the
complaint, or alternatively, to stay the claims pending arbitration. Loving and LCM indicated that
their motion was made pursuant to both the United States Arbitration Act, as amended, most
commonly referred to as the Federal Arbitration Act (9 U.S.C. § 1 et seq. (2018)), and Illinois’s
Uniform Arbitration Act (710 ILCS 5/1 et seq. (West 2022)). Loving and LCM contended that
plaintiff’s claims fell within the scope of the agreement’s arbitration provisions. TruAdvice filed
a separate motion arguing that the trial court should stay the proceedings pending arbitration. As
an alternative to arbitration, TruAdvice also sought to dismiss the action against it pursuant to
section 2-619 of the Code based on the alleged lack of substantive merit of plaintiff’s claims.
Specifically, TruAdvice contended it owed no fiduciary duty to plaintiff before the agreement was
executed on March 31, 2020, and that plaintiff’s negligence claims were barred by the economic
loss doctrine. Loving and LCM later sought to dismiss the complaint based on similar substantive
issues to those raised by TruAdvice.
¶7 Plaintiff responded that Loving and LCM were not parties to the agreement, so they
lacked standing to enforce arbitration. Plaintiff also argued that the agreement’s arbitration
provisions did not apply to his claims, which arose before the agreement was executed. On that
point, plaintiff focused on the language in the arbitration provisions requiring arbitration of claims,
controversies, and related issues “which may arise.” Plaintiff submitted that this quoted language
was “plainly forward-looking, applying to claims or controversies that ‘may arise’ subsequent to
the execution of the Agreement.” Addressing other language in the agreement requiring arbitration
of claims, controversies, and related issues concerning “the construction, performance, or breach
of this or any other agreement between you and us, whether entered into prior to, on, or subsequent
to the date of this Agreement,” plaintiff maintained that (1) defendants did not contend that
[SEGMENT 25]
plaintiff had any prior agreements with them and (2) plaintiff was not alleging a breach of the
March 31, 2020, agreement. Additionally, plaintiff opposed the arguments directed to the
substantive merits of his claims.
¶8 On September 20, 2023, the trial court held a nonevidentiary hearing on the motions
filed by Loving, LCM, and TruAdvice. At this hearing, plaintiff’s counsel conceded that Loving
had standing as a third-party beneficiary to rely on the arbitration provisions of the agreement. The
court declined to compel arbitration. Reasoning that the agreement was ambiguous as to whether
its arbitration provisions applied to events that occurred before the parties executed the agreement,
the court construed the ambiguity against the drafter (TruAdvice). The court then addressed
Loving’s, LCM’s and TruAdvice’s arguments regarding the substantive merits of plaintiff’s
claims. The court denied all pending motions. On September 28, 2023, the court signed a written
order documenting its rulings.
¶9 On October 16, 2023, Loving and LCM filed a notice of appeal from the portion of
the September 28, 2023, order denying their motion to compel arbitration. That appeal was
docketed in this court as No. [CITATION]. On October 30, 2023, TruAdvice filed a notice of appeal
from the portion of the September 28, 2023, order denying the motion to compel arbitration.
(Thirty days following September 28 was Saturday, October 28; October 30 was the following
Monday. Thus, TruAdvice’s notice of appeal was timely.) That appeal was docketed in this court
as No. [CITATION]. We granted appellants’ unopposed request to consolidate the appeals.
¶ 10 II. ANALYSIS
¶ 11 On appeal, Loving and LCM argue that the trial court erred by declining to compel
arbitration. TruAdvice raises similar arguments but also challenges the court’s rulings regarding
the substantive merits of plaintiff’s claims. Specifically, TruAdvice contends that the court should
have dismissed plaintiff’s claims because (1) TruAdvice did not owe plaintiff a fiduciary duty prior
to March 31, 2020 and (2) plaintiff’s negligence claims are barred by the economic loss doctrine.
Plaintiff responds that the court properly declined to compel arbitration. According to plaintiff, we
lack jurisdiction to entertain TruAdvice’s arguments directed to the merits of his claims.
¶ 12 “ ‘A motion to compel arbitration is essentially a section 2-619(a)(9) motion to
dismiss or stay an action in the trial court based on an affirmative matter, the exclusive remedy of
arbitration.’ ” [CITATION]. In ruling on
such a motion, “the court must interpret all pleadings and supporting documents in the light most
favorable to the nonmoving party.” [CITATION]. Where, as here, the
court denies a motion to compel arbitration without holding an evidentiary hearing, we review the
order de novo. [CITATION].
¶ 13 A. Jurisdiction
¶ 14 We first address our jurisdiction. Illinois Supreme Court Rule 307(a)(1) (eff. Nov.
1, 2017) allows for interlocutory appeals from orders “granting, modifying, refusing, dissolving,
or refusing to dissolve or modify an injunction.” An order denying a motion to compel arbitration
is injunctive in nature and is appealable pursuant to Rule 307(a)(1). [CITATION]. Thus, we have jurisdiction to review the portion of the trial court’s September 28,
2023, order declining to compel arbitration of plaintiff’s claims.
¶ 15 However, we lack jurisdiction to address TruAdvice’s challenges to the portion of
the September 28, 2023, order declining to dismiss the case based on the purported lack of merit
of plaintiff’s claims. The substantive merit of plaintiff’s claims has nothing to do with whether the
claims are subject to arbitration. See [CITATION] (“[I]n deciding whether the parties have agreed to submit a
particular grievance to arbitration, a court is not to rule on the potential merits of the underlying
claims.”); [CITATION] (“The question of
whether an arbitration agreement encompasses a particular issue is to be determined without regard
to the merits.”). Moreover, an order denying a motion to dismiss directed toward the merits of a
claim is not an injunctive ruling within the meaning of Rule 307(a)(1). See [CITATION] (explaining that the denial of a motion to dismiss the case pursuant to
the Citizen Participation Act was not an injunctive ruling that was appealable under Rule
307(a)(1)). Even where the appellate court has jurisdiction over one issue in an appeal pursuant to
Rule 307(a)(1), this “does not open the door to a general review of all orders entered up to the date
of the interlocutory order that is appealed.” [CITATION], ¶ 37.
¶ 16 In its reply brief, TruAdvice cites [CITATION],
support of its request for us to review its arguments directed toward the merits of plaintiff’s claims.
In [CITATION], a criminal case, the trial court suppressed certain statements the defendant made to the
police on the basis that the defendant had not validly waived her right to counsel. [CITATION]. On the State’s interlocutory appeal, the appellate court first affirmed the suppression
order on a different basis, holding that the defendant had been arrested without probable cause.
[CITATION]. However, in addition to affirming the judgment, the appellate court
held that the lack of probable cause for the arrest required suppression of additional statements
that the trial court had not ordered suppressed. [CITATION]. Our supreme court
subsequently held that it was proper for the appellate court to affirm the suppression order on
alternate grounds included in the record. [CITATION] However, the supreme court
held that the appellate court exceeded its jurisdiction by ordering additional statements to be
suppressed. [CITATION]
¶ 17 Unlike the defendant in [CITATION], TruAdvice is an appellant in a Rule 307(a)(1)
civil appeal seeking to reverse the judgment, not an appellee defending the judgment. Therefore,
the maxim that a reviewing court may affirm on any basis in the record does not support
TruAdvice’s request for us to address its arguments directed to the merits of plaintiff’s claims. We
determine that our jurisdiction under Rule 307(a)(1) is limited to considering whether the trial
court properly declined to compel arbitration of plaintiff’s claims.
¶ 18 B. Preliminary Issues Regarding the Applicable Law
¶ 19 The agreement specified it was to be construed according to Florida law. Rather
than relying on Florida cases and statutes, the parties have litigated the issue of arbitrability by
citing cases applying either the Federal Arbitration Act or Illinois’s Uniform Arbitration Act. The
Federal Arbitration Act applies only where the parties’ contract evidences “a transaction involving
commerce.” 9 U.S.C. § 2 (2018); [CITATION] However, the parties have never specifically addressed the issue of whether
the agreement evidenced a transaction involving commerce. The parties also have not explained
why Illinois’s Uniform Arbitration Act would apply where the agreement specifically
contemplated applying Florida law. Nevertheless, as we will explain, plaintiff’s claims are subject
to arbitration regardless of whether we look to case law interpreting the Federal Arbitration Act or
Illinois’s Uniform Arbitration Act.
¶ 20 C. Who Decides the “Gateway” Issue of Arbitrability?
====== End of Ruling ====== ¶ 21 Loving and LCM contend that the trial court erroneously addressed whether
plaintiff’s claims were arbitrable, as this was a “gateway” issue for the arbitrator to decide. Loving
and LCM may not raise this issue on appeal, as they invited any error by urging the court to find
that the claims fell within the scope of the arbitration agreement. See [CITATION] (“A party cannot complain of error which he induced the court to make or to
which he consented.”).
¶ 22 Aside from the fact that Loving’s and LCM’s position on this point is inconsistent
with their position below, the circumstances here did not require an arbitrator to decide the issue
of arbitrability. Under case law construing the Federal Arbitration Act, “[u]nless the parties clearly
and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to
be decided by the court, not the arbitrator.” [CITATION]. Here, the
agreement did not clearly and unmistakably delegate the issue of arbitrability to an arbitrator.
Loving and LCM note that the agreement referenced the American Arbitration Association and its
Code of Arbitration Procedure. However, the agreement did not say that arbitration would be
governed by any particular set of rules. Instead, the agreement said, “Any arbitration pursuant to
this Agreement shall be conducted in accordance with, and governed by, a mutually agreeable
arbitration forum, but, in the absence of such agreement, then the American Arbitration
Association and its Code of Arbitration Procedure.” (Emphasis added.) This language is
distinguishable from the arbitration provisions in [CITATION], for example, which said that “the arbitration ‘shall be conducted in
accordance with the rules of the American Arbitration Association.’ ” Thus, the agreement here
did not meet the specificity requirement of [CITATION] to change the default rule under
the Federal Arbitration Act that the court should determine the issue of arbitrability.
¶ 23 Under case law applying Illinois’s Uniform Arbitration Act, a court should decide
the issue of arbitrability if that issue is “apparent” from the agreement’s “clear” language.
[SEGMENT 26]
[CITATION]. But “when the
language of an arbitration clause is broad and it is unclear whether the subject matter of the dispute
falls within the scope of [the] arbitration agreement, the question of substantive arbitrability should
initially be decided by the arbitrator.” [CITATION]. Here, no party ever
disputed the trial court’s authority to decide the issue of arbitrability. Additionally, as explained in
the next section, no party argues on appeal that the arbitration provisions are ambiguous, and we
hold that these provisions plainly require arbitration of plaintiff’s claims. Thus, the court did not
violate [CITATION]'s rule by deciding the issue of arbitrability.
¶ 24 D. The Language of the Agreement
¶ 25 We now look to the language of the agreement to ascertain whether plaintiff’s
claims are subject to arbitration. [CITATION] argue that the agreement’s broad
arbitration provisions unambiguously encompass plaintiff’s claims. [CITATION] further insist
that any ambiguity must be interpreted in favor of arbitration. Plaintiff argues that the agreement
is unambiguous, but he proposes it “does not apply retroactively” to claims arising before the
agreement was executed on March 31, 2020.
¶ 26 “While public policy favors arbitration as a method of dispute resolution, an
agreement to arbitrate is nevertheless a matter of contract.” [CITATION], ¶ 29. “ ‘The parties to an agreement are bound to arbitrate only those
issues which by clear language and their intentions expressed in the language show they have
agreed to arbitrate.’ ” [CITATION], ¶ 29 (quoting [CITATION]); see [CITATION].
- 10 - Stanford Junior University, [CITATION] (recognizing that the Federal Arbitration Act
“does not require parties to arbitrate when they have not agreed to do so,” but “simply requires
courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance
with their terms”). We rely on ordinary principles of contract interpretation, and our “primary
objective is to determine and give effect to the intent of the parties at the time they entered into the
contract.” [CITATION]. To ascertain the parties’ intent, we first look to the
language of the contract, considering the contract as a whole rather than isolating any provision.
[CITATION]. If the contract is unambiguous, we ascertain the parties’ intent
from the language of the contract itself, not by the parties’ construction of that language during
litigation. [CITATION].
¶ 27 Again, the first sentence of the section of the agreement addressing arbitration
provided that “Client agrees with Adviser to resolve any and all disagreements by final and binding
arbitration.” The agreement then listed “Important Disclosures” about the nature of binding
arbitration, including that the parties were “each waiving [their] respective rights to seek remedies
in court, including the right to a jury trial.” (Emphasis in original.) The agreement continued that,
except as it would be void under “applicable law” (emphasis in original):
“Client agree [sic] with Adviser that *** ALL CLAIMS OR CONTROVERSIES,
AND ANY RELATED ISSUES, which may arise at any time between Adviser
(including Adviser’s representatives, members, managers, officers, employees, and
agents) concerning any investment advice, recommendation, or exercise of limited
discretionary authority with respect to any subject matter; any transaction or order;
the conduct of our representatives, members, managers, officers, employees, and
agents; the construction, performance, or breach of this or any other agreement
- 11 - between you and us, whether entered into prior to, on, or subsequent to the date of
this Agreement; the breach of any common law or statutory duty; or the violation
of any federal or state law of any nature SHALL BE RESOLVED BY BINDING
ARBITRATION RATHER THAN BY A LAWSUIT IN A COURT OF LAW OR
EQUITY.” (Emphases in original.)
¶ 28 In arguing that his claims of negligence and breach of fiduciary duties fall outside
the scope of the agreement’s very broad arbitration provisions, plaintiff focuses on the words
“which may arise” in insolation. According to plaintiff, these words indicate the arbitration
language is “forward looking and does not apply to past conduct.” From this premise, plaintiff
reasons that because the agreement was executed on March 31, 2020, his claims, which involved
conduct that occurred prior to that date, are not subject to arbitration.
¶ 29 Although the trial court did not specifically endorse plaintiff’s interpretation, the
court deemed the agreement ambiguous as to its scope, and the court construed that ambiguity
against the drafter. On appeal, no party argues the arbitration provisions are ambiguous.
¶ 30 Plaintiff’s analysis of the agreement’s arbitration provisions is flawed, as he isolates
words and strips them of their context. The portion of the sentence from which plaintiff quotes
actually required arbitration of “all claims or controversies, and any related issues, [(emphasis
removed)] which may arise at any time.” (Emphasis added.) Notably, this language covers not just
claims or controversies that may arise at any time, but any issues related to those claims or
controversies that may arise at any time. Such broad language comfortably encompasses the claims
in this lawsuit, which was filed long after the arbitration agreement was executed, even though the
claims were primarily based on conduct predating the execution of the agreement. We say
- 12 - “primarily” because the complaint also included allegations about a phone conversation on July
14, 2020, between plaintiff, Loving, Loving’s assistant, and a representative of T. Rowe Price.
¶ 31 The remainder of the arbitration provisions further undermine plaintiff’s position
that arbitration is limited to claims arising after March 31, 2020. The agreement specified that all
claims, controversies, and any related issues regarding the performance or “breach of this or any
other agreement” between the parties, “whether entered into prior to, on, or subsequent to the date
of this Agreement,” were subject to arbitration. (Emphasis added.) Although plaintiff’s complaint
alleged breach of fiduciary duties and negligence, not breach of contract, this language is
inconsistent with plaintiff’s position that the arbitration provisions are forward-looking only.
Moreover, plaintiff’s interpretation ignores and renders superfluous the first sentence in the section
of the agreement addressing arbitration, which provided that “Client agrees with Adviser to resolve
any and all disagreements by final and binding arbitration.” (Emphasis added.) Construing the
agreement as a whole rather than looking to certain words in isolation, we discern no ambiguity.
Plaintiff’s claims of negligence and breach of fiduciary duties fall within the scope of the plain
language of the agreement’s arbitration provisions.
¶ 32 Plaintiff proposes that three cases support his interpretation of the arbitration
provisions: [CITATION], and [CITATION]. Carr and Winston Labs both
addressed disputes regarding the temporal scope of federal statutes that contained present-tense
language. See [CITATION] at 442, 449-50 (holding that a statute using the phrase “travels in
interstate or foreign commerce” did not apply to someone who traveled before the statute was
enacted); [CITATION] at * 5 (holding that where a statute defined the word
“affiliate” using present-tense language, a long-since-dissolved company did not constitute a
- 13 - party’s affiliate). Unlike the statutes at issue in those cases, the arbitration provisions here
contained much broader language that was not limited to the present tense. In [CITATION], our supreme
court held that the claims at issue arose pursuant to an agreement that did not contain an arbitration
clause, so an arbitration clause in a different agreement did not apply. [CITATION].
Here, by contrast, the only written agreement in the record contains arbitration provisions that are
most naturally interpreted as encompassing a subsequently-filed lawsuit alleging negligence and
breach of fiduciary duties. Moreover, plaintiff’s claims are based on his client-investment adviser
relationship with Loving before the parties executed a written agreement and that written
agreement expressly requires arbitration of claims regarding the performance of preexisting
agreements.
¶ 33 Plaintiff cites an additional unpublished Illinois Appellate Court order predating
2021. See [CITATION]. We will not address that case, as
plaintiff does not cite it for any permissible purpose. See Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023)
(providing that parties may cite unpublished orders predating 2021 only to “support contentions
of double jeopardy, res judicata, collateral estoppel or law of the case”).
¶ 34 Accordingly, we hold that plaintiff’s claims are subject to arbitration. We reverse
the portion of the trial court’s September 28, 2023, order denying defendants’ motions to compel
arbitration. We remand the cause to the trial court with directions to stay this action and compel
arbitration.
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we reverse the trial court’s judgment and remand with
directions to stay this action and compel arbitration.
¶ 37 Reversed and remanded with directions.
- 14 -
```plaintext
IL App (1st) 231382-U
Fourth Division
Filed February 22, 2024
No. 1-23-1382
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
[SEGMENT 27]
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
SUFYAN HASSAN, )
) Appeal from the
Plaintiff and Counterdefendant-Appellant,
) Circuit Court of Cook County
v. )
No. 2020 CH 05785
)
STATE FARM MUTUAL AUTOMOBILE ) The Honorable Joel Chupack,
INSURANCE COMPANY, ) Judge, presiding.
Defendant and Counterplaintiff-Appellee. )
)
JUSTICE OCASIO delivered the judgment of the court.
Presiding Justice Rochford and Justice Martin concurred in the judgment.
ORDER
¶1 Held: The trial court’s order granting the motion to stay arbitration and denying the
motion to compel arbitration is reversed, and the cause remanded, where State
Farm did not waive its right to contest coverage but there remained an unresolved
factual question as to whether it was estopped from doing so. The appeals from
the trial court’s orders denying Hassan’s motion to strike affirmative defenses
and motion to dismiss counterclaim are dismissed for lack of jurisdiction.
¶2 Plaintiff Sufyan Hassan appeals, under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1,
2017), the trial court’s interlocutory orders (1) staying arbitration and denying his motion to
compel arbitration, (2) denying his motion to strike defendant State Farm Mutual Automobile
Insurance Company’s (State Farm) affirmative defenses, and (3) denying his motion to dismiss
State Farm’s counterclaim. Because there remains an unresolved question of fact as to whether
``` ```plaintext
[CITATION] No. 1-23-1382
State Farm should be estopped from contesting coverage, we reverse the order staying arbitration
and declining to compel arbitration and remand for further proceedings in accordance with
section 2 of the Uniform Arbitration Act. 710 ILCS 5/2 (West 2022). However, we find that we
lack jurisdiction to review the trial court’s orders denying Hassan’s motion to strike affirmative
defenses and motion to dismiss counterclaim, which are neither independently appealable under
Rule 307 nor intertwined with the arbitration order, so we dismiss his appeal from those orders.
¶3 I. BACKGROUND
¶4 A. The Insurance Policy
¶5 This case involves an automobile insurance policy issued by State Farm to Hassan (the Policy)
that was effective from October 26, 2017, to April 26, 2018, and covered a 2007 Cadillac Escalade
owned by Hassan. The Policy included coverage for liability, medical payments (limited to
$10,000 per person), physical damage (including related expenses such as emergency road service,
car rentals, and travel), and uninsured and underinsured motor vehicles. Under the uninsured-
motorist coverage, which was required by section 143a(1) of the Illinois Insurance Code (215
ILCS 5/143a(1) (West 2018)), State Farm agreed to pay Hassan compensatory damages for bodily
injuries sustained in an accident caused by a vehicle that either was not covered by liability
insurance or whose driver or owner could not be identified. The Policy required binding arbitration
of any disputes about two specific questions that might arise under the uninsured-motorist
coverage:
“a. Is the insured legally entitled to recover compensatory
damages from the owner or driver of the uninsured motor vehicle?
b. *** [W]hat is the amount of the compensatory damages that
the insured is legally entitled to recover from the owner or driver of
the uninsured motor vehicle?” (Italics in original.)
The arbitration agreement further provided that arbitrators would “have no authority to decide any
questions of law.”
``` [CITATION] No. 1-23-1382
¶6 Under the Policy, any person defined as an insured had a duty to “submit to an examination
under oath, provide a statement under oath, or do both, as reasonably often as [State Farm]
require[s].” With respect to the uninsured motor vehicle coverage, the term insured included
(among others) Hassan as the policyholder named on the declarations page, any spouse who
“resid[ed] primarily with” him, and “any person entitled to recover compensatory damages as a
result of bodily injury to an insured.” (Italics in original.) The Policy also contained a provision
entitled “Concealment or Fraud,” which stated as follows:
“There is no coverage under this policy if you or any other
person insured under this policy has made false statements with the
intent to conceal or misrepresent any material fact or circumstance
in connection with any claim under this policy.” (Italics in original.)
¶7 B. Hassan’s Insurance Claim
¶8 In February 2018, Hassan filed a claim under the Policy for losses stemming from an alleged
hit-and-run collision on February 12, 2018. His claim involved physical damage to the car as well
as physical injuries to his person and associated medical expenses sustained during the collision,
including a torn distal bicep tendon in his left arm, which required surgery.
¶9 Materials in the record show that State Farm initially denied the claim as it pertained to
physical damage to the insured vehicle under the belief that the damage pre-existed the alleged
collision, but it later reversed course and paid for repairs. Following those repairs, Hassan
continued experiencing problems with an oil-pressure sensor and a crash sensor, but State Farm
declined to pay to fix those problems after determining that they were not related to the February
, 2018 incident. The record does not show that State Farm took any action on the claim as it
pertained to medical expenses or uninsured-motorist coverage at that time.
¶ 10 At the time of the alleged hit-and-run collision, Hassan was married to Lieim Yusuf. In July
, Yusuf filed for divorce. Several weeks later, her divorce attorney notified the attorney Hassan
had retained in connection with his insurance claim that any “monetary award” in his “personal
[CITATION] No. 1-23-1382
injury case” would be considered a marital asset. Then, in November 2018, Yusuf contacted State
Farm and alleged that Hassan had actually torn his tendon while lifting weights about a week
before the alleged hit-and-run.
¶ 11 In January 2019, State Farm sent Hassan a reservation-of-rights letter. The letter, which was
signed by a claim specialist at State Farm, stated:
“State Farm *** may have no duty to pay, indemnify, defend, or
otherwise perform under the policy *** because:
A question exists as to whether or not there has been a
material misrepresentation as to the facts, circumstances and
alleged injuries surrounding this loss.
It is questionable whether the injury was caused by a hit-
and-run motor vehicle, so as to qualify as an uninsured motor
vehicle under the Uninsured Motor Vehicle coverage.
For these reason(s), and for any other reasons which may
become known, State Farm *** reserves all rights under the policy,
including the right to deny coverage in its entirety.
***
Any action taken by State Farm *** or any of its authorized
representatives to investigate, evaluate, pay, defend, or otherwise
adjust any claim arising out of the alleged loss shall not waive any
of the terms or conditions of the State Farm policy of insurance ***,
nor shall such action waive any of your rights under the policy.”
The letter also stated that State Farm did “not intend *** to waive any policy defenses not stated
above” and it purported to “specifically reserve[] its right to assert such additional policy defenses
at any time.”
[CITATION] No. 1-23-1382
¶ 12 About three weeks later, Hassan’s attorney sent a letter to State Farm asserting that the
reservation-of-rights letter was deficient because the grounds stated in the letter for reserving rights
“lack[ed] any specificity.” He noted that the first ground given in the reservation-of-rights letter
did not “describe with any particularity *** the potential misrepresentations” and that the second
ground was merely “unsupported questioning of established facts.” The record does not contain a
response from State Farm.
¶ 13 Within a week of Hassan responding to the reservation-of-rights letter, State Farm requested
that he submit to an examination under oath as required by the Policy. On February 24, 2019,
counsel for State Farm sent a letter to Hassan’s attorney reflecting that Hassan had agreed to sit
for the examination under oath. The letter also anticipated that the claim could go to arbitration:
“In the event State Farm and Mr. Hassan are unable to agree on
the appropriate measure of damages upon completion of State
Farm’s investigation of this claim, and assuming no coverage
defenses, State Farm is willing to proceed to binding arbitration as
detailed in the applicable policy.”
The letter goes on to detail State Farm’s position about what the appropriate forum for arbitration
would be under the Policy.
¶ 14 That same day, State Farm received a report it had solicited from a firm called Crash Data
Services, LLC, concerning the cause of the damage to Hassan’s Escalade. The report concluded
that, based on the shape, location, and nature of the damage and the absence of paint transfer, the
[SEGMENT 28]
Escalade had been “backed into a tall, rounded, concrete barrier,” not struck by another vehicle.
The report described Hassan’s account of a hit-and-run collision as “patently false.”
¶ 15 In April 2019, Hassan, as required by the Policy, submitted to an examination under oath. He
testified that, on February 12, 2018, he was parked on the side of the road when a white pick-up
truck struck him from behind and then drove away. He said that, at the moment of impact, he had
his left hand on the steering wheel and was reaching toward the back seat to retrieve his phone,
[CITATION] No. 1-23-1382
which had fallen to the floor. He attributed his bicep injury to the collision, and he denied Yusuf’s
allegation that he had injured his bicep lifting weights. After the examination, State Farm’s attorney
sent an email to Hassan’s attorney stating that his “current view” was that he did not “put weight
in that one-time call by Ms. Yusuf” in view of the “very nasty divorce” and her position that the
claim was a marital asset.
¶ 16 On July 30, 2019, counsel for State Farm sent an email to Hassan’s lawyer suggesting that
they “move this case forward toward arbitration” while “wait[ing] on authority” from State Farm
and asking whether he was “free to discuss evidentiary stipulations and arbitration scheduling”
later that day. On August 11, State Farm’s attorney advised counsel for Hassan that he would accept
service of Hassan’s arbitration demand. Hassan filed the arbitration demand with the American
Arbitration Association (AAA) on August 20, 2019, and served it on State Farm via email. Counsel
for State Farm acknowledged receipt the following morning. AAA sent a letter acknowledging
receipt of the demand to both parties’ attorneys on August 23. The demand itself is not in the
record.
¶ 17 On August 27, 2019, Yusuf forwarded to State Farm a series of emails she had exchanged
with Hassan on February 6, 2018, about one week before the alleged hit-and-run, about an
unspecified injury Hassan was suffering from.
¶ 18 Materials in the record indicate that State Farm paid AAA’s docketing fee on October 9, 2019.
The arbitrator was selected on October 24 and formally appointed on October 30. State Farm was
given until November 19 to indicate whether Hassan had complied with all conditions precedent,
but it did not submit a response.
¶ 19 In early December 2019, at the request of the arbitrator, the parties submitted emails stating
their respective positions on State Farm’s intent to take a statement from Yusuf under oath. State
Farm’s submission stated, in relevant part:
“State Farm’s claim investigation is ongoing, and that
investigation now appears ready to encompass the statement of Mr.
[CITATION] No. 1-23-1382
Hassan’s estranged wife, who has come forward recently with
documentary evidence which, if true, casts the legitimacy of Mr.
Hassan’s claim into doubt. I have shared that information with
counsel and we have discussed it.
Counsel points out that AAA rules don’t entitle a party to pre-
hearing depositions, but that does not foreclose State Farm from
taking this statement if the witness is willing to appear. Even when
an arbitration of a UM claim is on track for a future hearing via
AAA, the terms of the policy still govern the parties while the claim
investigation is ongoing [CITATION].”
Hassan’s submission acknowledged that he had no basis for preventing State Farm from taking a
voluntary statement from Yusuf. He maintained, however, that State Farm was not entitled to take
a statement under oath under the terms of the Policy because she did not qualify as an “insured.”
Hassan further stated:
“Ms. Yusuf provided alleged contradictory information directly
to State Farm by email dated August 27, 2019, which counsel
provided to me November 12, 2019. State Farm has had plenty of
time to speak with Ms. Yusuf. If State Farm wants to take her
statement, it should do so soon. That does not impact this proceeding
if it will not be a deposition. I do not intend to attend any statement
because there would be no point without cross-examination, which
would not be proper under either a statement nor an examination
under oath. Ms. Yusuf should be presented at the arbitration if State
Farm chooses to rely on her information.”
Hassan also argued that he would object to “much of her potential testimony” based on the spousal-
communications privilege (see [CITATION]) and that discovery depositions of
[CITATION] No. 1-23-1382
third parties were not allowed under the AAA rules. The record does not disclose what, if anything,
the arbitrator did in response to these submissions.
¶ 20 Yusuf submitted to a voluntary examination under oath on January 3, 2020. The examination
was conducted by counsel for State Farm. Neither Hassan nor a representative was present. State
Farm’s attorney noted for the record that Hassan’s lawyer had declined an invitation to attend.
According to the affidavit of Hassan’s attorney, he chose not to attend because Yusuf refused to go
forward with the examination if Hassan was there, a condition that would have impaired his ability
to cross-examine her. Yusuf testified that, several days before the alleged hit-and-run, Hassan told
her that he had injured his arm lifting weights and showed her his bicep injury. The day after that,
she overheard Hassan telling a friend on the telephone that he was planning to attribute his injury
and an electrical problem he was having with his car to an accident so he could recover from his
insurance company.
¶ 21 C. Hassan’s Complaint
¶ 22 On February 14, 2020, Hassan filed a three-count complaint against State Farm in the Circuit
Court of Lake County. Count I alleged that, contrary to the insurance policy’s arbitration, State
Farm was refusing to arbitrate his claim under the uninsured-motorist coverage. It sought specific
performance of State Farm’s arbitration obligation. Count II alleged that State Farm had breached
the Policy by refusing to pay out the full value of Hassan’s claim for vehicle damage. It prayed for
damages. Count III alleged that State Farm had engaged in unreasonable and vexatious actions in
connection with the claims arising from the alleged hit-and-run. It sought an award of attorney
fees under section 155 of the Illinois Insurance Code. 215 ILCS 5/155 (West 2020).
¶ 23 At the time Hassan filed suit, State Farm had not formally denied the uninsured-motorist
claim, but it did so less than one week later. On February 20, State Farm sent Hassan (courtesy of
his attorney) a letter notifying him that it was denying coverage on the uninsured-motorist claim.
The letter identified four grounds for its denial of coverage. First, it stated that the alleged hit-and-
run was not a “loss” or an “accident” under the Policy. Second, it stated that Hassan had violated
[CITATION]
2024 IL App (1st) 231382-U No. 1-23-1382
the concealment-or-fraud provision of the Policy by “materially misrepresenting the facts and
circumstances” surrounding the alleged hit-and-run. Third, it stated that the medical-payments
coverage did not apply because Hassan’s medical expenses were not the result of an injury
sustained in the alleged hit-and-run. Fourth, it stated that the uninsured-motorist coverage did not
apply because his injuries were not the result of a hit and run.
¶ 24 In May 2020, State Farm filed a motion to transfer based on forum non conveniens. While
that motion was still pending, in July 2020, Hassan filed a motion to compel arbitration. The court
granted State Farm’s transfer motion in August 2020, and the case was transferred to the Circuit
Court of Cook County. 1 The arbitration proceeding remained pending until November 2020, when
AAA closed it after neither party agreed to pay an additional fee to keep it open.
¶ 25 D. State Farm’s Answer, Affirmative Defenses, and Counterclaim
¶ 26 Following the change of venue, on January 7, 2023, State Farm filed an answer denying
essential allegations in all three counts of the complaint. As relevant here, State Farm admitted that
February 12, 2018, was within the effective period of the Policy. It asserted, however, that there
was “no coverage under [the] policy” for the incident that Hassan alleged had taken place on that
date because Hassan had breached the Policy’s concealment-or-fraud provision, voiding the Policy.
¶ 27 State Farm also raised two affirmative defenses. In its first affirmative defense, State Farm
alleged that Hassan was not entitled to judgment on his claims because he had breached the
concealment-or-fraud provision of the Policy, which provided that there was “no coverage under
[the] policy” if Hassan or another insured “had made false statements with the intent to conceal or
misrepresent any material fact or circumstances in connection with any claim under [the] policy.”
[SEGMENT 29]
State Farm’s second affirmative defense went only to Count III. It alleged that State Farm’s denial
The motion to transfer and the order granting the motion to transfer are not included in the record
on appeal, but we may take judicial notice of court records. [CITATION]
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'clanton-v-oakbrook-healthcare-centre-ltd', which should be replaced with `[CITATION]
No. 1-23-1382
of coverage was justified or, at minimum, based on the existence of a good-faith dispute over
coverage.
¶ 28 In addition to its answer, State Farm filed a counterclaim for a declaratory judgment. The
counterclaim alleged that Hassan had violated the concealment-or-fraud provision of the Policy by
falsely representing that a hit-and-run accident had occurred on February 12, 2018. It alleged that
Hassan’s bicep injury had occurred before the supposed accident, that he had conspired with a
friend to stage an accident so he could recover from State Farm, and that a forensic analysis of the
vehicle showed that it had not been struck from behind by a hit-and-run vehicle. It sought a
declaration that there was no coverage under the Policy for the February 12, 2018 incident and that
it had no duty to pay Hassan’s claims associated with that incident.
¶ 29 E. The Parties’ Motions and the Trial Court’s Interlocutory Orders
¶ 30 Between January and March 2023, the parties filed a series of motions, responses, and replies.
All of those motions were resolved by written orders entered by the trial court on July 7, 2023. For
the sake of clarity, we will describe the motions and the trial court’s associated rulings one at a
time.
¶ 31
. Motion to Compel Arbitration and Cross-Motion to Stay Arbitration
¶ 32 The day before State Farm filed its answer, affirmative defenses, and counterclaim, Hassan
filed an amended motion to compel arbitration. Anticipating a dispute over coverage, the motion
to compel argued that State Farm had waived any coverage defense under the rules governing the
arbitration and that it should be estopped from denying coverage because it had led Hassan to
believe that any coverage issues would be resolved in arbitration and that Hassan had relied on
that belief to his detriment when he paid the $450 arbitration fee.
¶ 33 The next day, along with its answer and counterclaim, State Farm filed a cross-motion to stay
arbitration, which also served as its response to Hassan’s motion to compel. In its cross-motion,
State Farm asserted that there was no coverage under the Policy because no hit-and-run accident
had occurred and because Hassan had breached the Policy’s concealment-or-fraud provision. It
[CITATION] No. 1-23-1382
argued that it had not waived its coverage defense because arbitration was ultimately not conducted
and because it had notified AAA that it objected to continuing to participate in the arbitration. 2
State Farm also argued that it was not estopped from raising its coverage defense because it had
expressly reserved its rights in its January 2019 letter and because at the time State Farm “initially
agreed to participate in arbitration,” it had not yet obtained Yusuf’s statement under oath.
¶ 34 In his response, Hassan characterized State Farm’s cross-motion to stay arbitration as a
request for the court to “decide its Counterclaim prior to arbitration,” and argued that State Farm’s
counterclaim was not proper for the reasons given in his motion to dismiss, which is discussed
below.
¶ 35 The trial court denied Hassan’s motion to compel, granted State Farm’s motion to stay, and
ordered a stay of arbitration:
“[T]he Court must first determine whether Hassan violated the
Concealment or Fraud provision of the Policy. If he did, then there
is no coverage and nothing to arbitrate. If he did not, then there may
be coverage subject to arbitration. Until this determination is made,
the Arbitration should be stayed.”
In the order, the court also rejected Hassan’s waiver and estoppel arguments. Reasoning that “no
arbitration was conducted” and that State Farm notified AAA of its objection once it had obtained
Yusuf’s statement under oath, it found that State Farm had not waived arbitrability under the AAA
Rules. It also found that the January 2019 reservation-of-rights letter “insulate[d] State Farm from
estoppel.”
The record does not disclose when State Farm filed its objection. Hassan appears to concede
that an objection was filed at some point, but he asserts that it was more than 30 days after AAA
acknowledged the arbitration demand, which State Farm does not dispute.
[CITATION]
¶ 36
. Motion to Strike Affirmative Defenses
¶ 37 Hassan filed a motion to strike State Farm’s affirmative defenses. The motion to strike argued
that State Farm’s noncoverage defense, which stated the reasons why State Farm had denied the
underlying claim, were premature because Hassan was only seeking specific performance of the
arbitration agreement, not damages for breaching the contract by denying his claim. The motion
also argued that State Farm’s defenses did not raise any affirmative matters that would defeat his
claims but instead denied the allegations of the complaint, which meant that they were not properly
raised as affirmative defenses.
¶ 38 The trial court denied the motion to strike. It found that State Farm’s noncoverage defense
was “not a mere denial of the well-pled facts of the specific performance count” because, if proven,
there would be no coverage under the Policy and the arbitration provision could not be invoked.
Noting that the existence of a bona fide coverage dispute would defeat the allegation of Count III
of the complaint that State Farm’s conduct was vexatious and unreasonable, it also found that such
a dispute was an affirmative defense to a claim for attorney fees under section 155.
¶ 39
. Motion to Dismiss Counterclaim
¶ 40 Hassan also filed a combined motion to dismiss State Farm’s counterclaim under sections
-615 and 2-619 of the Code of Civil Procedure. [CITATION]; see
id. § 2-619.1 (authorizing a combined motion to dismiss). The motion argued that, for two reasons,
State Farm’s counterclaim was subject to dismissal under section 2-615 because it failed to state a
claim upon which relief could be granted. First, it argued that the counterclaim improperly sought
an advisory opinion as to nonliability for its denial of Hassan’s claim. Second, it argued that,
because the alleged misrepresentations were not made in the Policy or his policy application, they
did not provide a basis for invalidating the Policy. The motion sought involuntary dismissal of the
counterclaim under section 2-619(a)(9) because it was based on privileged marital
communications. It also sought involuntary dismissal under section 2-619(a)(3) on the basis that
there was a pending arbitration, arguing that State Farm’s conduct during the aborted arbitration
[CITATION] No. 1-23-1382
proceedings had waived its noncoverage defense that it was estopped from asserting its coverage
defense due to its conduct leading up to arbitration, its delaying the denial of Hassan’s claim until
after he filed suit to compel arbitration, and by failing to provide Hassan with a copy of an
amendatory endorsement to the Policy that prevented it from relying on Yusef’s statements to deny
coverage.
¶ 41 The trial court denied Hassan’s motion to dismiss on the grounds that State Farm had
articulated in its response. It found that, because the counterclaim sought a finding that there was
no coverage under the Policy for any claims related to the February 12, 2018 incident, not just the
uninsured-motorist claim, declaratory relief could be appropriate. It found that Hassan’s alleged
misrepresentations about the February 12, 2018 incident would be a legally proper basis for
denying coverage under the Policy’s concealment-or-fraud provision. It found that, due to the
absence of a developed record, it would be premature to determine whether the spousal-
communications privilege applied and that, in any event, State Farm’s counterclaim relied on
allegations derived from sources other than Hassan’s ex-wife. Finally, it found that the
counterclaim was not subject to dismissal under section 2-619(a)(3) because the arbitration and
the counterclaim did “not constitute the same action.” The court’s order denying the motion to
dismiss acknowledged, but did not resolve, Hassan’s argument that State Farm had waived and
was estopped from asserting its coverage defense.
¶ 42 Hassan filed a notice of appeal from all three July 7, 2023 orders.
¶ 43 II. ANALYSIS
¶ 44 At the outset, we note that we have jurisdiction under Illinois Supreme Court Rule 307(a)(1)
(eff. Nov. 1, 2017) over the trial court’s interlocutory order granting a stay of arbitration and
denying Hassan’s motion to compel arbitration. [CITATION]. The parties disagree about whether we have
jurisdiction to reach the trial court’s orders denying Hassan’s motions to strike affirmative defenses
[SEGMENT 30]
and dismiss the counterclaim. As discussed below, whether we have jurisdiction over those orders
[CITATION] No. 1-23-1382
turns on the extent to which they are bound up with the appeal of the arbitration order, so we begin
our analysis with the trial court’s resolution of the parties’ arbitration motions.
¶ 45 A. Arbitration
¶ 46 The primary issue in this interlocutory appeal is whether the trial court correctly denied
Hassan’s motion to compel arbitration, granted State Farm’s motion to stay arbitration, and ordered
arbitration stayed until the court resolves whether Hassan violated the concealment-or-fraud
provision of the Policy. The question before us is “whether there was a sufficient showing to sustain
the order of the trial court.” [CITATION] The trial court
did not hold an evidentiary hearing or make any findings of historical fact, so our review is de
novo. [CITATION], ¶ 31.
¶ 47
. The Uniform Arbitration Act
¶ 48 Proceedings related to arbitration in Illinois courts are governed by our state’s Uniform
Arbitration Act (Illinois UAA) (710 ILCS 5/1 et seq. (West 2022)). [CITATION] The Illinois UAA is based on, and substantially adopts
the provisions of, the 1956 version of the uniform act bearing the same name. See Uniform
Arbitration Act (1956), 7 U.L.A. 99-796 (West 2009) (UAA (1956)). By its own terms, the Illinois
UAA is to be construed “to make uniform the law of those states which enact” the uniform act it
is based on. 710 ILCS 5/20 (West 2022); see UAA (1956) § 21.3 Thus, Illinois courts “show greater
than usual deference to the opinions of the courts of other jurisdictions” when interpreting the
Illinois UAA. [CITATION]
¶ 49 As relevant here, section 2 of the Illinois UAA provides the mechanism used to enforce
arbitration agreements in Illinois courts. Section 2 allows parties to request, by “application,” a
court order either compelling or staying arbitration. 710 ILCS 5/2 (West 2022). Under section 2(a),
The Illinois UAA omits section 15 of the UAA (1956). Consequently, section 15 of the Illinois
UAA corresponds to section 16 of the UAA (1956); section 16 of the Illinois UAA corresponds
to section 17 of the UAA (1956), and so on.
[CITATION] No. 1-23-1382
a party can obtain an order compelling a dispute to arbitration by showing that a valid agreement
to arbitrate the controversy exists and that the opposing party is refusing to submit to arbitration.
Id. § 2(a). Conversely, under section 2(b), a party can seek an order staying a “commenced or
threatened” arbitration by showing that there is no agreement to arbitrate the dispute. Id. § 2(b). In
either situation, the applicant bears the burden of establishing that it is entitled to an order
compelling or staying arbitration. See [CITATION], ¶ 26.
¶ 50 A court should not compel resolution of a dispute in arbitration unless it is “of the type that
the parties have agreed should be submitted to arbitration.” [CITATION]. At the same time, one of the chief
advantages of arbitration is that it is “an effective, expeditious, and cost-efficient method of dispute
resolution.” [CITATION]. Lengthy and expensive litigation over issues
connected with arbitration would, of course, undermine that benefit. So, an express purpose of the
uniform act, and thus the Illinois UAA, is to “provide an efficient procedure” when court oversight
of arbitration issues becomes necessary. See UAA (1956) Prefatory Note, 7 U.L.A. 100. To that
end, section 2 requires courts to resolve disputes about arbitrability—i.e., whether a given claim
must be decided in arbitration—“summarily” and dispose of motions to compel or stay arbitration
accordingly. 710 ILCS 5/2(a), (b) (West 2022); accord UAA (1956) § 2(a), (b).
¶ 51 To be clear, the summary proceeding contemplated by section 2 “is not one which merely
disposes of the motion in a conclusory fashion.” [CITATION], ¶ 24. The
directive to proceed summarily means only that the “trial court should act expeditiously and
without a jury trial to determine whether a valid arbitration agreement exists.” Uniform Arbitration
Act (2000) § 7, cmt., 7 U.L.A. 32 (discussing section 2 of the UAA (1956)). When arbitrability is
put into dispute, the court must “substantively dispose[] of the issues presented.” [CITATION], ¶ 31. Section 2 requires a “considered
disposition” in which the trial court “separately addresses each issue raised by the motion” and
“support[s] its resolution of each issue with specific factual findings or legal reasons.” [CITATION] No. 1-23-1382
[CITATION]. The trial court should start by identifying the issues raised by the
parties and considering the affidavits, pleadings, stipulations, and any other evidence that is before
it. [CITATION]; accord [CITATION] (interpreting the Uniform Arbitration Act of
); [CITATION]
(same). To the extent that there are no factual disputes and the issues can be resolved as a matter
of law, no evidentiary hearing is required. [CITATION]. Any remaining dispute of
material fact should be resolved expeditiously at an evidentiary hearing. [CITATION]. Because that
evidentiary hearing is part of the summary proceeding required by section 2, it may be “conducted
‘[w]ithout the usual formalities [and] without a jury.’ ” (Alterations in original.) [CITATION]
(quoting Black’s Law Dictionary 1476 (8th ed.
)).
¶ 52 Here, in its response to Hassan’s motion to compel arbitration and its cross-motion to stay
arbitration, State Farm argued that there was no coverage for the alleged collision because no hit-
and-run accident had occurred and because Hassan has violated the concealment-or-fraud
provision of the Policy. In terms of section 2 of the Illinois UAA, State Farm’s response “denie[d]
the existence of the agreement to arbitrate,” and its cross-motion asserted that “there [was] no
agreement to arbitrate.” 710 ILCS 5/2(a), (b) (West 2022). There is no dispute that, standing alone,
the Policy only called for the parties to arbitrate the liability of the hit-and-run driver or owner and
the extent of damages—not coverage. Hence, once raised, “the issue of coverage should have been
summarily tried [CITATION] because questions of law or fact concerning coverage cannot under [the]
agreement be submitted to arbitration.” [CITATION]. The trial court was therefore required to “act expeditiously and without a jury
trial to make a substantive determination of whether a valid arbitration agreement exist[ed], and to
[CITATION] No. 1-23-1382
resolve any other issues raised by” the parties’ cross-motions. [CITATION],
¶ 25 (describing the summary proceeding contemplated by section 2).
¶ 53 With this framework in mind, we turn to Hassan’s arguments that the trial court erred in
denying his motion to compel arbitration by finding that State Farm neither had waived its
coverage defense nor was estopped from asserting it.
¶ 54
. Waiver
¶ 55 We first consider whether the trial court correctly found that State Farm had not waived its
right to contest coverage. A waiver is “an express or implied voluntary and intentional
relinquishment of a known right.” [CITATION], ¶ 21. Waiver involves “a unilateral act,” and it does not require “detrimental reliance” by
the other party. [CITATION]. The
inquiry “focuses exclusively on the conduct of the” party alleged to have waived a right. Id. at 218.
The burden is on the party asserting waiver to show that the other party “knew of its rights” and
“evidenced an intention to waive such rights.” [CITATION], ¶ 29 (citing [CITATION],
Ill. 2d 98, 104 (1991)). The bar for establishing an implied waiver is high. “Implied waiver of
a legal right must be proved by a clear, unequivocal, and decisive act of the party who is alleged
to have committed waiver.” Id. at 105. For instance, a party might impliedly waive
a known right by engaging in “conduct [that] is inconsistent with any other intention than to waive
it.” (Internal quotation mark omitted.) Id. (quoting [CITATION],
Ill. App. 3d 1046, 1052 (1974)). An insurer can waive questions as to coverage under a policy
[SEGMENT 31]
by taking action that “recognizes the continued validity of the policy” (internal quotation marks
omitted), such as assuming the insured’s legal defense without reserving its right to contest
coverage. [CITATION], ¶ 22 (quoting [CITATION],
Ill. App. 3d 299, 306 (1994)).
[CITATION] No. 1-23-1382
¶ 56 On appeal, Hassan points to nothing in the record indicating that State Farm expressly waived
its noncoverage defense. Instead, he argues that State Farm waived its right to contest coverage
through its conduct in the since-abandoned arbitration proceedings by failing to comply with
various procedural rules governing the arbitration. See American Arbitration Association, Illinois
Uninsured/Underinsured Motorist Arbitration and Mediation Rules (eff. Feb. 1, 2016) (AAA
Rules).
¶ 57 We agree, as a general matter, that a party can waive the issue of arbitrability by not raising
it in a timely fashion during arbitration proceedings. See [CITATION]. But that rule is a consequence of section 12(b)(5) of Illinois UAA,
which provides that an arbitration award can be vacated on the ground that there was no arbitration
agreement, but only if “the party did not participate in the arbitration hearing without raising the
objection.” 710 ILCS 5/12(a)(5) (West 2022); see [CITATION]. In other
words, the right waived by participating in arbitration without raising a timely objection to
arbitrability is the right to contest an award on that basis, not the right to assert non-arbitrability
generally. Here, State Farm is not relying on its coverage defense as grounds for vacating an
arbitration award under section 12(a)(5). Indeed, because the parties never finished arbitration,
there is no award that could be vacated. Hence, there is no implied waiver arising from State Farm’s
alleged failure to contest coverage pursuant to the AAA Rules.
¶ 58 Hassan also contends that State Farm waived the right to have the coverage issue decided by
the court. He notes that AAA Rule 4 contemplates submitting coverage disputes to the arbitrator
by agreement:
“Issues as to coverage, *** may be referred to voluntary
coverage arbitration with the agreement of all parties before the
arbitrator appointed by the AAA. *** In the absence of an agreement
[CITATION] No. 1-23-1382
to submit such issues to arbitration, accident claims arbitrators may
only decide contested issues of coverage, applicable policy limits,
or stacking of policy coverage where ordered to do so by a court or
where so authorized by law.” AAA Rules, R. 4.
Citing [CITATION], Hassan suggests
that, by participating in the arbitration process, State Farm implicitly agreed to have the arbitrator
decide its noncoverage defense, thereby waiving its right to have arbitrability decided by the court.
¶ 59 We think this argument misunderstands [CITATION]. In [CITATION], after an arbitration award
was entered on an uninsured-motorist claim, the insurer returned the award for modification on the
ground that it exceeded the limit stated in the insurance policy. [CITATION]
In his opposition to the insurer’s modification request, the claimant apparently argued that a
statutory amendment that increased the mandatory minimum coverage limits retroactively
increased the limits of the policy at issue. See [CITATION] The arbitrator agreed with the insurer
and modified the award to reflect the reduced limit stated in the policy. [CITATION] After a circuit
court confirmed the modified award, the claimant appealed. [CITATION] Among other things, he argued that
the arbitrator had lacked jurisdiction to decide the legal question of whether the statutory
amendment retroactively applied to the policy at issue. [CITATION] The court, however, found that
the claimant had waived any objection to the arbitrator deciding the issue by submitting a response
to the insurer’s request for a modification on the merits rather than moving to stay the modification
or objecting to the arbitrator’s authority to decide the policy-limit issue. [CITATION]
¶ 60 The situation in this case is not the same. In [CITATION], the claimant waived his objection to
the arbitrator deciding a legal question by submitting the issue to the arbitrator. Here, by contrast,
the record does not show that either party asked the arbitrator to decide the coverage issue.
¶ 61 It is true, as Hassan points out, that the parties each sent emails to the arbitrator in December
stating their positions concerning State Farm’s efforts to obtain a sworn statement from Yusuf
and on the applicability of the spousal-communications privilege to whatever she might testify to.
[CITATION] No. 1-23-1382
While this certainly suggests that both parties were contemplating that Yusuf might provide
testimony in the arbitration proceedings, that testimony was not, as Hassan contends, relevant
solely to the issue of coverage. 4 Among other things, Yusuf alleged that Hassan had sustained the
tear to his left distal bicep tendon while exercising before the alleged hit-and-run took place, and
she had provided State Farm with emails that seemingly corroborated that claim. That evidence
tended to show that the injury pre-existed the claimed hit-and-run incident, from which it would
follow that the owner or driver of the hit-and-run vehicle would not be liable to Hassan for that
injury because it had not been sustained during the hit-and-run incident. And under the Policy, the
parties were required to resolve disputes over the hit-and-run driver or vehicle owner’s liability in
arbitration. Because Yusuf’s potential testimony was relevant to a question subject to arbitration
under the Policy, State Farm’s willingness to have the arbitrator consider issues related to securing
and presenting that testimony was fully consistent with an intent to arbitrate only those issues
subject to arbitration under the Policy. In short, it did not necessarily reflect that State Farm
intended to have the arbitrator decide the coverage dispute, so it does not rise to the level of an
unequivocal implied waiver of State Farm’s coverage defense.
¶ 62 As the party asserting waiver, Hassan had the burden of showing that State Farm waived its
right to raise its coverage defense or to have the coverage issue decided by the court. Based on the
record before us, we agree with the trial court that he failed to carry that burden, and we hold that
State Farm did not waive its right to dispute coverage.
¶ 63
. Estoppel
¶ 64 Hassan next argues that State Farm should be estopped from disputing coverage. “[E]stoppel
refers to an abatement, by operation of law, of the insurer’s rights where it would be inequitable to
permit their assertion.” [CITATION], ¶ 12. “The general rule is that where a
We note that, in his complaint, Hassan expressly took the contrary position, arguing that Yusuf’s
testimony “is a subject for arbitration” because it went to whether “the hit-and-run driver is
liable to” Hassan.
[CITATION] No. 1-23-1382
person by his or her statements and conduct leads a party to do something that the party would not
have done but for such statements and conduct, that person will not be allowed to deny his or her
words or acts to the damage of the other party.” [CITATION]. To estop State Farm from contesting arbitrability, Hassan must put forward
“clear, concise, and unequivocal” evidence showing that: (1) he was misled in some way by State
Farm’s actions or statements, (2) he relied on that conduct or misrepresentation, (3) that reliance
was reasonable, and (4) that reliance prejudiced him. [CITATION], ¶ 28.
¶ 65 Here, Hassan argues that State Farm should be estopped from disputing coverage because it
invited him to arbitrate the dispute in a July 30, 2019 email that State Farm’s lawyer sent to
Hassan’s lawyer, which stated as follows:
“Steve:
Let’s move this case forward toward arbitration as I wait on
authority. Are you free to discuss evidentiary stipulations and
arbitration scheduling this afternoon? If so, let me know what time.
I’ll call you.
Regards,
-EWM”
Hassan argues that, in the context of State Farm’s previous communications—including its
reservation-of-rights letter, which identified two coverage defenses, and its February 24, 2019
letter indicating that, once it completed its investigation and “assuming no coverage defenses,” it
would be “willing to proceed to binding arbitration” on any remaining dispute over damages—the
July 30 email suggested that State Farm had completed its investigation and concluded that it did
not have any coverage defenses.
¶ 66 Based strictly on the materials in the record before us, Hassan’s reading of the July 30 email
is a plausible one. It is apparent, though, that we are lacking the full context. For instance, the
[CITATION] No. 1-23-1382
February 24 letter suggests that it is responding to an email sent three days earlier by Hassan’s
attorney that is not in the record. The July 30 email states that counsel for State Farm was
“wait[ing] on authority,” but it does not specify what kind of authority, implying previous
[SEGMENT 32]
communications that are not found in the record. Indeed, other than the emails exchanged about
Yusuf’s allegation on the night of Hassan’s examination under oath, the record is bereft of
information about any communication between the parties between February 24 and July 30, 2019,
that would shed light on whether it was reasonable to rely on the July 30 email as indicating that
State Farm had completed its investigation and was no longer contesting coverage.
¶ 67 Still, because Hassan’s reading is a plausible one, we do not think that his estoppel argument
was properly rejected purely as a matter of law. When “reasonable people might draw different
conclusions from the evidence,” estoppel is a question for a trier of fact. [CITATION] Because estoppel could not be resolved as a matter of law, the trial court should
have held an evidentiary hearing and then determined, as a question of fact, whether Hassan had
proven the elements of his estoppel claim. We therefore reverse the trial court’s arbitration order
and remand for it to, in accordance with section 2 of the Illinois UAA, hold any proceedings
necessary to decide whether State Farm’s conduct estops it from contesting coverage under the
particular facts of this case, as the court may determine.
¶ 68
. Coverage
¶ 69 Finally, we note that, in resolving the arbitration motions, the trial court expressly reserved
ruling on the ultimate question of coverage raised by State Farm. Although neither party raises the
point, “denying [a] motion to compel arbitration without ruling on the arbitrability of the dispute”
is error. [CITATION] On remand,
the trial court should not only decide the issue of estoppel but also any other remaining questions
of law or fact—such as State Farm’s noncoverage assertions—needed to substantively resolve
whether the parties’ dispute is within the scope of the arbitration agreement. See 710 ILCS 5/2
(West 2022); [CITATION] No. 1-23-1382
¶ 70 B. State Farm’s Affirmative Defenses and Counterclaim
¶ 71 As noted above, our jurisdiction to review the trial court’s arbitration order under Rule
(a)(1) is clear. The orders denying Hassan’s motion to strike affirmative defenses and his
motion to dismiss the counterclaim are a different matter. Those interlocutory orders are not
independently appealable, either by permission under Rule 306(a) or as of right under Rule 307(a).
That is not necessarily dispositive, though. “Rule 307 allows this court to review any prior error
that bears directly upon the question of whether an order on appeal was proper.” [CITATION]
In other words, our review of the trial court’s order staying
arbitration is not limited to the four corners of that particular order but extends to any antecedent
actions that have a direct bearing on the arbitration decision. Cf. Ill. S. Ct. R. 366(a)(5) (granting
reviewing court authority to “enter and judgment and make any order that ought to have been given
or made *** that the case may require”). Among other things, that means we have jurisdiction to
consider any previous order that is “intertwined” with the resolution of the arbitration motions
such that the outcome of the previous order was necessarily dispositive of the arbitration order.
See [CITATION] (finding jurisdiction to
review trial court’s order denying defendant’s motion to strike class allegations because that
decision necessarily required it to also deny defendant’s motion to compel arbitration).
¶ 72 In his briefs, Hassan asserts that we have jurisdiction to review the trial court’s orders denying
his motions to strike State Farm’s affirmative defenses and dismiss its counterclaim because the
“denial of [his] motions attacking [State Farm’s] pleadings made denial of [his] motion compelling
arbitration a foregone conclusion.” We disagree. The Illinois UAA permitted State Farm to raise
its noncoverage defense by way of “den[ying] the existence of an agreement to arbitrate” in its
response to the motion to stay arbitration. 710 ILCS 5/2(a) (West 2022). It also permitted State
Farm to raise that defense in its cross-motion to stay arbitration, which required it to show that
there was no agreement to arbitrate. Id. § 2(b). Because State Farm did not need to plead
noncoverage as an affirmative defense or in a counterclaim to be able to rely on it as a basis for
[CITATION] No. 1-23-1382
defeating Hassan’s motion to compel arbitration, it would not have made any difference if the trial
court had granted Hassan’s motions directed against State Farm’s pleadings.
¶ 73 Hassan also suggests that the trial court’s rulings on his motion to strike and motion to dismiss
were intertwined with its ruling on the arbitration motion because they involved overlapping issues
of waiver and estoppel. Again, we disagree.
¶ 74 Our review of the record discloses that Hassan did not move to strike State Farm’s affirmative
defenses on the basis of either waiver or estoppel. Instead, he argued that its noncoverage defenses
constituted a denial of the allegations in his complaint, which meant that they were not properly
raised as affirmative defenses. The trial court’s order denying the motion to strike did not address
either waiver or estoppel. Hence, that order is not intertwined with the arbitration order, which
means we lack jurisdiction to review it on an interlocutory basis.
¶ 75 Hassan’s motion to dismiss State Farm’s counterclaim asserted both waiver and estoppel, but
it did so within the context of arguing that the counterclaim should be dismissed because the
arbitration proceedings were a pending action involving the same claim. See 735 ILCS
/2-619(a)(3) (West 2022) (permitting involuntary dismissal of a claim when “there is another
action pending between the same parties for the same cause”). Consequently, although the trial
court’s order denying the motion to dismiss discussed the parties’ arguments concerning waiver
(but not estoppel), it denied the motion on the basis that “the AAA arbitration and the Counterclaim
do not constitute the same action.” That finding had nothing to do with waiver or estoppel, which
means that the trial court’s resolution of the motion to dismiss was not intertwined with its
arbitration order. Again, that means we do not have jurisdiction to review it in this interlocutory
appeal.
¶ 76 In sum, the trial court’s denial of Hassan’s motion to strike State Farm’s affirmative defenses
and his motion to dismiss its counterclaim had no bearing on its resolution of the arbitration
motions. We therefore lack jurisdiction to review those orders on an interlocutory basis, so we
[CITATION]
No. 1-23-1382
must dismiss Hassan’s appeal from those orders. See [CITATION]
¶ 77 C. Hassan’s Request for Sanctions
¶ 78 In his reply brief, Hassan asks us to sanction State Farm based on various allegations of
misconduct in the trial court and on appeal. But his complaints about conduct in the trial court are
not properly before us, as the record contains no indication that Hassan sought sanctions in the
trial court. In any event, he did not ask for sanctions in his opening brief, and “[i]ssues raised for
the first time in a reply brief do not merit consideration.” [CITATION]; see also [CITATION]
(“The reply brief, if any, shall be confined strictly to reply to arguments presented in the brief of
the appellee.”). As for the alleged misconduct in this court, a request for sanctions is properly
brought through a motion, not in a reply brief to which the opposing party has no right of response.
See [CITATION]. On our own motion, the portion of Hassan’s reply brief
requesting sanctions against State Farm is stricken for noncompliance with the rules. See
[CITATION] (“Where a brief has failed
to comply with the rules, we may strike portions of the brief or dismiss the appeal, should the
circumstances warrant.”).
¶ 79 III. CONCLUSION
¶ 80 We hold that State Farm did not waive its right to contest coverage, but we find that the trial
court erred by rejecting Hassan’s estoppel claim as a matter of law. We therefore reverse the order
denying Hassan’s motion to compel arbitration and granting State Farm’s cross-motion to stay
arbitration, and we remand to the trial court. On remand, consistent with section 2 of the Illinois
UAA (710 ILCS 5/2 (West 2022)), the trial court should make any factual determinations necessary
to resolve Hassan’s estoppel claim, and it should hold any other proceedings that may be needed
for it to resolve the ultimate question of coverage. Because we lack jurisdiction to consider the
[CITATION] No. 1-23-1382
trial court’s orders denying Hassan’s motion to strike affirmative defenses and motion to dismiss
counterclaim, we dismiss his appeal from those orders.
¶ 81 Reversed and remanded in part; dismissed in part.
[CONTENT WITH CITATIONS REMOVED FOR DEMONSTRATION PURPOSES]
2024 IL App (4th) 221030
FILED
NO. 4-22-1030 February 13, 2024
Carla Bender
[SEGMENT 33]
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THOMAS KEY SR., as Independent Administrator of the ) Appeal from the
Estate of Lois Key, Deceased, ) Circuit Court of
Plaintiff-Appellant, ) Ford County
v. ) No. 22LA2
ACCOLADE HEALTHCARE OF THE HEARTLAND, )
LLC, d/b/a Accolade Healthcare of Paxton on Pells, ) Honorable
Defendant-Appellee. ) Matthew John Fitton,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Lannerd and Knecht concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Thomas Key Sr., as independent administrator of the estate of Lois Key,
deceased, filed this nursing home negligence action against defendant, Accolade Healthcare of the
Heartland, LLC, d/b/a Accolade Healthcare of Paxton on Pells. (Defendant asserts that plaintiff
did not sue it by its correct legal name, and we have corrected the caption accordingly.) Plaintiff
appeals an order dismissing all three counts of his complaint with prejudice and compelling
arbitration of the claims. We reverse and remand.
¶2 I. BACKGROUND
¶3 Decedent, Lois Key, resided at defendant’s nursing home facility before dying on
July 20, 2020. On March 4, 2022, plaintiff filed a three-count complaint against defendant. Count
I was filed pursuant to the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2022)) and
the Survival Act (755 ILCS 5/27-6 (West 2022)). Count II was filed pursuant to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2022)). Count III realleged count I and then sought
to recover decedent’s funeral and burial expenses.
¶4 A. Defendant’s Motion to Dismiss and to Compel Arbitration
¶5 Pursuant to section 2-619(a) of the Code of Civil Procedure (Code) (735 ILCS
5/2-619(a) (West 2022)), defendant moved to dismiss the action and to compel arbitration of all
three counts of the complaint. Defendant argued that decedent agreed to arbitrate disputes as part
of the documents she signed attendant to her residency at defendant’s facility. According to
defendant, the arbitration agreement was valid, and the issues in plaintiff’s complaint fell within
the scope of that agreement. Although defendant relied almost exclusively on Illinois caselaw in
its motion, defendant maintained it was entitled to its requested relief under both federal and
Illinois law. To that end, defendant cited both the United States Arbitration Act, as amended, most
commonly referred to as the Federal Arbitration Act (9 U.S.C. § 1 et seq. (2018)), and Illinois’s
Uniform Arbitration Act (710 ILCS 5/1 et seq. (West 2022)).
¶6 As “Exhibit B” to its motion, defendant attached a lengthy admission packet
containing documents signed by decedent. Exhibit B includes an executed “Contract Between
Resident and Facility.” This contract contains the following arbitration provisions:
“The Resident agrees to submit all claims or controversies arising out of or
in any way relating to the Agreement, but not involuntary transfer and discharge
proceedings, eviction proceedings, or matters that are properly filed in a small
claims court or with the State Agency, in accordance with the Arbitration
Agreement attached as Attachment E. Resident voluntarily agrees that execution of
the Agreement [sic].
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'clanton-v-oakbrook-healthcare-centre-ltd', which should be replaced with `[CITATION]`. Pursuant to the Federal Arbitration Act *** and other applicable law, the
parties agree to submit any dispute, claim, or controversy (‘Dispute’), arising out
of or relating to (i) this Agreement or any amendment to this Agreement or (ii) the
breach, termination, enforcement, interpretation, or validity of this Agreement,
including the determination of the scope or applicability of this agreement to
arbitrate (‘Arbitration Agreement’), to final and binding arbitration before one
arbitrator. If such arbitrator finds any portion of this Arbitration Agreement
unenforceable, that portion will not be effective and the remainder of this
Arbitration Agreement will remain in effect. The Federal Arbitration Act will
govern the proceedings and interpretation of this Arbitration Agreement. A party
to the arbitration may enter a judgment on the arbitration award in any court of
competent jurisdiction.
This Arbitration Agreement does not limit, impair, or waive any defenses
of any party, including the statute of limitations, and nothing in this Agreement
prevents you or any other person from contacting regulatory or administrative
agencies in relation to services the Facility provides. This Arbitration Agreement
binds all parties to this Agreement and their spouses, heirs, representatives,
executors, administrators, successors, and assigns, as applicable. After this
Agreement terminates, this Arbitration Agreement shall remain in effect for the
resolution of all future Disputes between the parties.”
¶7 The contract specifies that its term was one year, subject to automatic annual
renewals, unless either party terminated the contract. Additionally, the contract would terminate
upon decedent being transferred or discharged from the facility. In the event of decedent’s death,
the contract would “terminate automatically,” either when decedent’s family removed her personal
belongings from her room or 15 days after the death.
¶8 Attachment E to this contract is an arbitration and limitation of liability rider that
decedent signed separately. This rider provides, in relevant portion:
“1. The parties agree the disputes identified in Article 2, below, between:
a) the Resident or his/her spouse, heirs or assigns; and b) Facility or its affiliates,
officers, directors, agents, license holders, managers, or employees, shall be
submitted to binding arbitration, as provided below, and shall not be filed in a court
of law.
. The disputes subject to arbitration in accordance with this Rider, include:
(a) all claims or controversies arising out of or in any way relating
to the Agreement, but not involuntary transfer and discharge proceedings,
eviction proceedings, or matters that are properly filed in a small claims
court or with the State Agency;
(b) the Resident’s stay at the Facility, but not administrative
involuntary termination or involuntary transfer or discharge proceedings,
eviction proceedings, or matters that are properly filed in a small claims
court or with the State Agency;
(c) the services rendered for any condition, and any dispute arising
out of the diagnosis, treatment, or care of the Resident;
(d) disputes involving amounts in controversy greater than
$150,000.00; or
(e) disputes regarding interpretation of this Rider[.]
The enumerated disputes will be subject to this Rider whether arising out of
State or federal law, whether existing or arising in the future, whether for statutory,
compensatory or punitive damages and whether sounding in breach of contract, tort
or breach of statutory duties, irrespective of the basis for the duty or the legal
theories upon which the claim is asserted.
The parties to this Rider further understand that Claims, including
malpractice claims, cannot be brought in a lawsuit in court before a judge or jury
and that a jury will not decide their case.
. This Rider shall be governed by and interpreted under the Federal
Arbitration Act ***. In the event that it is determined that the [Federal Arbitration
Act] is inapplicable, the parties desire that this agreement be interpreted under the
applicable Illinois law so as to give effect to the parties’ intent. Further, nothing in
this Rider is to be construed to contradict any applicable Illinois statutory grievance
or mediation procedure. ***
***
. The arbitration proceedings shall be held in accordance with the rules
and procedures as outlined in the National Arbitration Forum’s Code of Procedure.
In the event that the National Arbitration Forum is unable or unwilling to arbitrate
the dispute, the parties agree that the dispute shall be arbitrated before a nationally
recognized arbitration organization pursuant to its code of conduct.
. The arbitrator’s decision shall be final and binding without the right to
appeal.
***
13. This Arbitration Provision *** shall survive the death of the Resident.
. This Rider shall remain in effect after the expiration of the underlying
Agreement and shall apply to all renewal Agreements.” (Emphasis in original.)
¶9 Exhibit B to defendant’s motion also contains numerous references to federal
programs. However, Exhibit B does not indicate whether defendant ultimately received any
payments through federal programs in connection with decedent’s care. Additionally, there is a
provision in the contract stating, “The Facility accepts Medicaid Recipients and individuals who
qualify for assistance under the VA Program, but this does not in any way guarantee that the
Resident with qualify [sic] or Facility will always be a participating provider in the programs.”
Another provision says that “[t]he Facility’s present participation in the Medicare Program does
not in any way guarantee that the Resident will qualify for Medicare or that the Facility will always
be a participating provider in the Medicare Program.”
¶ 10 Defendant did not submit any affidavits in support of its motion.
[SEGMENT 34]
¶ 11 B. Plaintiff’s Response to Defendant’s Motion
¶ 12 Plaintiff opposed defendant’s request for arbitration. According to plaintiff, [CITATION],
established that wrongful death claims are not assets of a decedent’s estate and thus are not subject to an arbitration agreement signed by a decedent.
Relying on [CITATION], plaintiff asserted that defendant could not compel arbitration of count II of his
complaint.
¶ 13 With respect to counts I and III of his complaint, plaintiff invoked sections 3-606
and 3-607 of the Nursing Home Care Act (210 ILCS 45/3-606, 3-607 (West 2022)). Section 3-606
provides that “[a]ny waiver by a resident or his legal representative of the right to commence” a
nursing home negligence action “shall be null and void, and without legal force or effect.” 210
ILCS 45/3-606 (West 2022). Section 3-607 specifies that provisions in nursing home contracts
waiving the right to a jury trial for negligence claims are “null and void, and without legal force
or effect.” 210 ILCS 45/3-607 (West 2022). Plaintiff conceded that these two statutes “might
arguably be preempted by the Federal Arbitration Act.” However, plaintiff contended that
preemption did not apply here, as defendant failed to show that decedent’s contract with defendant
evidenced a transaction involving commerce. See 9 U.S.C. § 2 (2018) (stating that the Federal
Arbitration Act applies to contracts “evidencing a transaction involving commerce”). Specifically,
plaintiff argued that defendant failed to meet its burden under section 2-619 of the Code, as
defendant “fail[ed] to present any argument or evidence, by affidavit or other evidentiary materials,
to support that the agreement involves a transaction involving interstate commerce.”
¶ 14 C. Defendant’s Reply
¶ 15 In its reply brief, defendant again argued in support of its motion to dismiss that
decedent’s contract was valid and that plaintiff’s claims were subject to arbitration. Defendant
contended that the Federal Arbitration Act preempts sections 3-606 and 3-607 of the Nursing
Home Care Act. However, defendant did not specifically address plaintiff’s point about whether
the decedent’s contract evidenced a transaction involving commerce.
¶ 16 Defendant continued to maintain, without any additional argument, that plaintiff’s
wrongful death claim was subject to arbitration. Evidently as an alternative to that argument,
defendant proposed that the trial court should stay litigation of count II of plaintiff’s complaint
while the parties arbitrated counts I and III.
¶ 17 D. The Trial Court’s Ruling
¶ 18 On October 21, 2022, the trial court granted defendant’s motion. The court found
that decedent freely and voluntarily entered into a contract with defendant. Additionally, the court
noted that the contract unambiguously contained a mutual promise to arbitrate claims. Presumably
referencing plaintiff’s arguments based on sections 3-606 and 3-607 of the Nursing Home Care
Act, the court asserted that the Federal Arbitration Act preempts state laws that invalidate
arbitration agreements “simply because the[y] waive a party’s right to file a lawsuit.” The court
found “a valid and enforceable agreement to arbitrate the claims at issue in Plaintiff’s Complaint.”
Accordingly, the court dismissed the complaint with prejudice and compelled arbitration of all
claims.
¶ 19 E. Appeal and Abeyance
¶ 20 Plaintiff filed a timely notice of appeal. After the parties filed their briefs, on our
own motion, we held consideration of the appeal in abeyance pending our supreme court issuing
a decision in [CITATION]. We anticipated that the supreme court would address a
disagreement within the appellate court as to whether an arbitration agreement in a nursing home
contract is enforceable when the contract also contains a “termination-on-death” clause. Although
the parties here have never raised this precise issue, given the parties’ general dispute about the
enforceability of the arbitration agreement that decedent signed, we deemed it provident to await
a decision in [CITATION].
¶ 21 On September 21, 2023, our supreme court filed its decision in [CITATION]. The court made clear that arbitration contracts
should be interpreted like any other contracts. [CITATION], ¶ 30. According to the
court, parties are free to draft a contract to exclude an arbitration provision from the contract’s
general termination-on-death provisions. [CITATION], ¶ 35. In the present case, both
the arbitration clause in the main body of the contract and the arbitration rider unambiguously state
that the arbitration agreement survives the termination of the contract. Thus, we saw no need to
request additional briefing from the parties regarding the applicability of Clanton.
¶ 22 II. ANALYSIS
¶ 23 On appeal, plaintiff argues that the trial court erroneously granted defendant’s
motion to dismiss and to compel arbitration. The parties debate two issues: (1) whether the Federal
Arbitration Act preempts sections 3-606 and 3-607 of the Nursing Home Care Act under the facts
of this case, thus requiring arbitration of counts I and III of plaintiff’s complaint, and (2) whether
the wrongful death claim in count II is beyond the scope of any arbitration agreement signed by
decedent.
¶ 24 “ ‘A motion to compel arbitration is essentially a section 2-619(a)(9) motion to
dismiss or stay an action in the trial court based on an affirmative matter, the exclusive remedy of
arbitration.’ ” [CITATION], ¶ 28 (quoting [CITATION], ¶ 21). In ruling on
this motion, “the court must interpret all pleadings and supporting documents in the light most
favorable to the nonmoving party.” [CITATION], ¶ 28. “We review the trial
court’s decision de novo because the court heard no evidence and considered only argument, which
the parties restate on appeal.” [CITATION], 567 (2009).
¶ 25 A. Whether Decedent’s Contract Evidenced a
Transaction Involving Commerce
¶ 26 The parties seem to agree that, unless preempted by federal law, sections 3-606 and
3-607 of the Nursing Home Care Act invalidate decedent’s agreement to arbitrate the claims in
counts I and III of plaintiff’s complaint.
¶ 27 To come within the scope of the Federal Arbitration Act, a contract containing an
arbitration agreement must evidence “a transaction involving commerce.” 9 U.S.C. § 2 (2018).
When a contract is subject to the Federal Arbitration Act, that act preempts state laws that
discriminate specifically against arbitration agreements; however, a state law is not preempted if
it applies equally to all contracts. [CITATION];
9 U.S.C. § 2 (2018) (specifying that contracts falling within the scope of the Federal Arbitration
Act are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract”).
¶ 28 In [CITATION], our supreme court
held that sections 3-606 and 3-607 of Illinois’s Nursing Home Care Act are not “ ‘grounds as exist
at law or in equity for the revocation of any contract.’ ” The effect of this holding is that if the
Federal Arbitration Act applies in a given case, that act preempts sections 3-606 and 3-607. In
rendering its decision, our supreme court “assume[d] arguendo” that the subject nursing home
contract evidenced a transaction involving commerce and thus was subject to the Federal
Arbitration Act. [CITATION]. Our supreme court determined that the contract’s
connection to commerce was “an issue that should be addressed by the appellate court on remand.”
[CITATION].
¶ 29 On remand, the appellate court held, inter alia, that a detailed affidavit submitted
by the defendant demonstrated the subject nursing home contract’s connection to commerce.
[CITATION]. When the case
subsequently returned to the supreme court on other issues, the plaintiff did not challenge the
appellate court’s determination about the contract’s connection to commerce. [CITATION]. Thus, the supreme court again “proceed[ed] from the premise that, as held by the
- 10 - appellate court and expressly stated in the arbitration agreements, the [Federal Arbitration Act]
governs the agreements.” [CITATION], ¶ 16.
¶ 30 Against this backdrop, plaintiff argues that the Federal Arbitration Act does not
apply here—and thus does not preempt sections 3-606 and 3-607 of the Nursing Home Care Act
in this case—as decedent’s contract did not evidence a transaction involving interstate commerce.
Specifically, plaintiff emphasizes that defendant failed to provide affidavits describing how the
subject contract evidenced a transaction involving commerce. To that end, plaintiff notes that
section 2-619(a) of the Code says that grounds for dismissal not appearing on the face of the
complaint “shall be supported by affidavit.” 735 ILCS 5/2-619(a) (West 2022). Plaintiff then
emphasizes that, unlike the defendant in [CITATION], defendant here did not provide an affidavit detailing the contract’s
connections to commerce. See [CITATION] (likewise noting that the defendant
filed an affidavit outlining the contract’s specific connections to commerce).
¶ 31 In response to plaintiff’s arguments, defendant notes that “the Federal Arbitration
[SEGMENT 35]
Act does not explicitly require an affidavit to satisfy the interstate commerce requirement.”
Defendant also mentions that decedent’s arbitration agreement specified that it was governed by
the Federal Arbitration Act. Furthermore, defendant contends that decedent’s contract has at least
“a slight nexus to” interstate commerce. Defendant reasons that “[t]he nursing home industry is
heavily regulated by the federal government, and is involved in the expenditure of Medicaid funds,
which are supplied by the federal government.” Additionally, without citing the record, defendant
asserts that it “receives out-of-state insurance payments as well as Medicare payments on behalf
of residents, and purchases medical equipment and medical supplies from vendors outside of
- 11 - Illinois.” Defendant further notes that Exhibit B to its motion contained references to defendant
accepting payments through Medicaid.
¶ 32 We hold that defendant’s motion to dismiss and to compel arbitration did not
comply with Illinois procedural law. Section 2-619(a) of the Code provides that grounds for
dismissal not appearing on the face of the challenged pleading “shall be supported by affidavit.”
735 ILCS 5/2-619(a) (West 2022). Defendant plainly did not comply with this requirement. In its
appellee’s brief, defendant does not argue that the subject nursing home contract’s connection to
commerce appears on the face of plaintiff’s complaint. Yet defendant submitted no affidavit in
support of its motion to dismiss and compel arbitration. While defendant asserts that the Federal
Arbitration Act does not expressly require affidavits, that does not excuse defendant from
complying with the rule of Illinois civil procedure that defendant invoked in seeking to dismiss
the complaint. Additionally, whether the Federal Arbitration Act applies here is a disputed
threshold issue.
¶ 33 Illinois courts that have addressed the commerce requirement have had the benefit
of detailed affidavits specifying the agreements’ particular connections to commerce. In [CITATION],
the defendant nursing home submitted an affidavit explaining that it
(1) received Medicare and Medicaid benefits for 15% of its residents, (2) received out-of-state
insurance payments and Medicare payments on behalf of the plaintiff, and (3) purchased supplies,
equipment, and medication from out-of-state vendors. In [CITATION],
the defendant nursing home submitted an affidavit attesting that (1) Medicare paid the
defendant $8667.99 for the decedent’s nursing care, (2) the defendant worked with an out-of-state
intermediary company to procure those Medicare payments, (3) in a two-year period, the defendant
- 12 - had received more than $9.3 million in Medicare and Medicaid funds, and (4) the defendant
received supplies and services from out-of-state companies.
¶ 34 Here, by contrast, even though plaintiff argued below that defendant failed to
demonstrate that the subject contract evidenced a transaction involving commerce, defendant did
not address that issue until this appeal. We recognize that the Supreme Court of the United States
has said Congress intended to exercise its “commerce power to the full” in enacting the Federal
Arbitration Act. [CITATION] However,
defendant has not demonstrated that the subject contract evidences a transaction involving
commerce. Defendant cites Exhibit B to its motion in support of its assertion that it generally
accepted payments through the Medicaid program. However, the record does not show what
percentage of defendant’s facility’s residents were on Medicaid during the time period relevant to
the complaint or how much money defendant received through Medicaid. Furthermore, the record
does not indicate whether defendant ultimately received any payments through any federal
programs in connection with decedent’s care. The contract decedent signed specifically warned
her there were no guarantees she would qualify for federal programs or that defendant’s facility
would continue to be a participating provider in federal programs. The record likewise does not
indicate whether defendant contracted with out-of-state vendors to provide care for decedent.
Thus, the factors that led the courts in [CITATION] and [CITATION] to hold
that specific nursing home contracts evidenced transactions involving commerce are absent from
our record. It is inappropriate for this court to fill the evidentiary gap by making broad assumptions
about the nursing home industry.
¶ 35 Defendant asserts that the documents decedent signed specified that the arbitration
agreement was governed by the Federal Arbitration Act. However, defendant does not cite any
- 13 - authority holding that this is dispositive of the issue of whether the contract evidences a transaction
involving commerce. Defendant having failed to present a cogent argument on this point supported
by citations to authority, we decline to hold that the contract decedent signed evidenced a
transaction involving commerce merely because the contract referenced the Federal Arbitration
Act. We note there is authority that could support an argument against defendant’s position. For
example, the nursing home contracts in both Carter and Fosler said that disputes would be
governed by the Federal Arbitration Act, yet the reviewing courts looked to the facts established
in affidavits when addressing whether the contracts evidenced transactions involving commerce.
See [CITATION].
Additionally, the Supreme Court of the United States has described the connection to commerce
as a “limitation[ ] on the enforceability of arbitration provisions governed by the Federal
Arbitration Act.” [CITATION]. There is some out-of-state
authority directly holding that even where an agreement says it is governed by the Federal
Arbitration Act, the party seeking to enforce arbitration still must prove the contract evidences a
transaction involving commerce. [CITATION].
¶ 36 At oral argument, defendant’s counsel raised some additional points that were
neither argued below nor included in the appellee’s brief. For example, counsel mentioned that
plaintiff’s complaint alleged that defendant violated a federal regulation. Illinois Supreme Court
Rule 341(h)(7), (i) (eff. Oct. 1, 2020), which applies to both appellants and appellees, provides
that parties may not raise new points at oral argument. Forfeiture aside, defendant still has not
provided a persuasive excuse for failing to comply with section 2-619(a) of the Code. Certainly,
defendant had the option of taking the approach of other nursing homes when invoking the Federal
- 14 - Arbitration Act and submitting an affidavit outlining the contract’s specific connections to
commerce. See [CITATION].
¶ 37 Accordingly, defendant has not demonstrated that the Federal Arbitration Act
applies here to preempt sections 3-606 and 3-607 of the Nursing Home Care Act in this case. Thus,
sections 3-606 and 3-607 of the Nursing Home Care Act invalidate any agreement signed by
decedent to arbitrate the claims in counts I and III of plaintiff’s complaint. Under these
circumstances, we hold that the trial court erroneously dismissed and compelled arbitration of
counts I and III.
¶ 38 B. Count II: The Wrongful Death Claim
¶ 39 The only other issue is whether count II of plaintiff’s complaint, which alleges
wrongful death, is subject to an arbitration agreement signed by decedent. In [CITATION], our supreme court held that a wrongful death claim is not subject to an arbitration
agreement signed by a decedent. This was so even though the arbitration agreement in [CITATION]
purported to bind the decedent’s heirs and the executor of her estate. [CITATION].
Defendant argues that [CITATION] dictates a different result than [CITATION]. However, our supreme court specifically
considered and addressed [CITATION]. See [CITATION] (“Defendant’s
reliance on the Supreme Court’s recent decision in [CITATION], as a basis for compelling arbitration
of the wrongful-death claim, is misplaced.”). We have no authority to overrule our supreme court.
[CITATION]. Thus, count II of plaintiff’s complaint is not subject to
arbitration.
¶ 40 III. CONCLUSION
- 15 - ```
¶ 41 For the reasons stated, we reverse the trial court’s judgment and remand the cause
to that court for further proceedings.
¶ 42 Reversed and remanded.
- 16 - [CITATION]
Decision Under Review: Appeal from the Circuit Court of Ford County, No. 22-LA-2; the
Hon. Matthew John Fitton, Judge, presiding.
Attorneys Jonathan T. Nessler, of the Law Offices of Frederic W. Nessler &
for Associates, Ltd., of Springfield, for appellant.
Appellant:
Attorneys Karie J. Valentino, Siobhán M. Murphy, and Alishba N. Malik, of
for Lewis Brisbois Bisgaard & Smith LLP, of Chicago, for appellee.
Appellee:
- 17 -
2024 IL App (4th) 230513
FILED
February 1, 2024
NO. 4-23-0513 Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
LUANN MIKOFF, Special Administrator of the Estate of ) Appeal from the
Bonnie Stone, Deceased, ) Circuit Court of
Plaintiff-Appellant, ) Jersey County.
v. ) No. 22LA11
UNLIMITED DEVELOPMENT, INC., and )
JERSEYVILLE MANOR, ) Honorable
Defendants-Appellees. ) Allison Lorton,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Justice Harris specially concurred, with opinion.
Presiding Justice Turner concurred in part and dissented in part, with opinion.
[SEGMENT 36]
OPINION
¶1 In July 2022, plaintiff Luann Mikoff, as special administrator of the estate of her
late mother Bonnie Stone (decedent), filed a complaint against defendants, Unlimited
Development, Inc., and Jerseyville Manor, a skilled nursing facility (Facility), alleging that
defendants were responsible for decedent’s premature death from COVID-19 contracted while
under their care. In September 2022, defendants filed a motion to stay the proceedings and compel
arbitration pursuant to the terms of the parties’ arbitration agreement. In January 2023, the Jersey
County circuit court entered a written order granting defendants’ motion to compel arbitration.
Plaintiff’s motion to vacate and set aside that order was denied in May 2023. ¶2 Plaintiff now appeals, contending (1) this court has jurisdiction of her appeal,
(2) the circuit court erred by not holding an evidentiary hearing, (3) the arbitration agreement was
not enforceable once the decedent passed away, (4) the arbitration agreement’s language is vague
and ambiguous, (5) the court applied the wrong version of federal nursing home regulations,
(6) only parties to the arbitration agreement may be bound by it, (7) the arbitration agreement was
procedurally unconscionable, and (8) the arbitration agreement was substantively unconscionable.
¶3 For the reasons stated below, we affirm the circuit court’s referral of decedent’s
claims under the Survival Act (755 ILCS 5/27-6 (West 2022)) to arbitration, but we reverse the
referral of the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2022)) claims to arbitration
and remand for further proceedings as to those claims.
¶4 I. BACKGROUND
¶5 On September 7, 2019, decedent was admitted to the Facility, which was owned
and/or operated by defendant, Unlimited Development, Inc. Plaintiff was decedent’s agent under
both medical and financial powers of attorney, and she signed the documents in her representative
capacity. The documents included both an admissions contract and arbitration agreement; the latter
began by stating:
“Without limiting any rights set forth in other provisions of this
AGREEMENT, any and all disputes arising hereunder shall be submitted to binding
arbitration and not to a court for determination. Arbitration shall commence after
written notice is given from either party to the other, such arbitration shall be
accomplished expeditiously in the county and state where the property which is the
subject of this AGREEMENT is located, and shall be conducted in accordance with
the rules of the American Arbitration Association (‘AAA’).”
Elsewhere, the arbitration agreement further stated:
“Notwithstanding the parties[’] intent to submit any controversy or claim
arising out of or relating to this AGREEMENT or any other document signed or
initialed in connection with this AGREEMENT to arbitration, in the event that a
court of competent jurisdiction shall determine or a relevant law shall provide that
a particular dispute is not subject to the arbitration provisions of this Section, then
the parties agree to the following provisions: ***.”
The admission contract plaintiff signed along with the arbitration agreement provided, in pertinent
part, the following: “The term of the contract shall commence on the day the Resident enters the
Facility and terminate the day the Resident is discharged, subject however to the following
provisions ***.”
¶6 On August 9, 2020, the 91-year-old decedent was hospitalized with COVID-19;
she died on August 17, 2020. In July 2022, plaintiff filed a complaint against defendants, seeking
to recover for decedent’s death. In the complaint’s introduction, plaintiff stated she was bringing
her cause of action in accordance with the Wrongful Death Act [CITATION] and the Survival Act [CITATION]. Plaintiff asserted four separate counts asserting claims of negligence
and willful and wanton misconduct, two against each defendant. The counts contended defendants
owed a duty to the decedent based on the Nursing Home Care Act [CITATION] and the Illinois Administrative Code.
¶7 In September 2022, defendants filed a motion to compel arbitration and stay the
proceedings, based on the terms of the arbitration agreement. Defendants attached a copy of the
admission contract, the arbitration agreement, a portion of the decedent’s medical power of
attorney, and plaintiff’s complaint. The motion also included a supporting affidavit executed by
Dana Bainter, the Facility’s administrator, and a supporting memorandum.
¶8 Plaintiff argued in response that the motion should be denied because (1) execution
of the arbitration agreement cannot be made part of the signing of the admissions document, (2) the
arbitration agreement is overly vague and ambiguous, (3) a healthcare power of attorney does not
grant authority to execute an agreement to arbitrate, and (4) defendants failed to establish the
arbitration agreement was substantively and procedurally conscionable. In the alternative, plaintiff
requested defendants’ motion be deferred until the completion of discovery. Plaintiff also
submitted a supplemental filing in opposition to arbitration, which is not included in the record on
appeal.
¶9 Defendants filed a reply, which attached, inter alia, the decedent’s complete
medical power of attorney and her financial power of attorney, both of which named plaintiff as
decedent’s agent.
¶ 10 On January 19, 2023, the circuit court held a hearing on defendants’ motion to
compel arbitration. Neither party presented testimony, but defendants’ counsel noted the
documents attached to their pleadings. On January 24, 2023, the court entered its written order
granting defendants’ motion to compel arbitration and stay the proceedings. The order required
plaintiff to arbitrate any and all claims against the defendants and stayed the proceedings during
the pendency of arbitration. Specifically, the court found an arbitration agreement can be part of a
nursing home admission contract, and matters involving scope or interpretation of the arbitration
agreement have been delegated to the arbitrator.
¶ 11 On February 22, 2023, plaintiff filed a motion to vacate and set aside the order
staying the proceedings and referring all claims to arbitration. Plaintiff asserted that the circuit
court’s order was erroneous for the following reasons: (1) the arbitration agreement was
procedurally and substantively unconscionable, (2) the healthcare power of attorney did not give
plaintiff the power to waive the decedent’s right to a jury trial, (3) the arbitration agreement
violates a federal nursing home regulation ([CITATION]), (4) the arbitration
agreement was impermissibly overbroad in its attempt to limit the court’s authority to interpret the
same, and (5) the arbitration agreement was vague and ambiguous and its terms must be strictly
construed against defendants. Plaintiff also pointed out that paragraph A of the admission contract
stated it terminated on the date the resident is discharged from the facility, which she argued was
decedent’s date of death (August 17, 2020). Plaintiff argued that the termination of the admission
contract would also end the enforceability of the arbitration agreement. Defendants filed a response
to plaintiff’s motion to vacate. Plaintiff replied to defendants’ arguments, and defendants again
responded.
¶ 12 On May 12, 2023, the circuit court held a hearing on plaintiff’s motion to vacate,
after which the court found the arbitration agreement was properly formed and an evidentiary
hearing was not required. The court then entered a written order denying plaintiff’s motion.
¶ 13 On June 8, 2023, plaintiff filed a notice of appeal from both the January 24, 2023,
and May 12, 2023, orders. Our jurisdiction of the appeal is addressed in the analysis section.
¶ 14 The resolution of this case requires us to address several different issues. Aside
from defendants’ motion to dismiss the appeal and some preliminary matters, the main issues for
resolution here are as follows: (1) whether, under Illinois law, has a contract for arbitration of
plaintiff’s claims been formed; and (2) if so, under federal law, who resolves questions about the
expiration, interpretation, and application of the arbitration agreement, the circuit court or the
arbitrator?
¶ 15 II. ANALYSIS
¶ 16 A. Motion to Dismiss the Appeal
¶ 17 Defendants filed a motion to dismiss plaintiff’s appeal, asserting that (1) plaintiff
failed to comply with Illinois Supreme Court Rule 307 (eff. Nov. 1, 2017) and (2) this court lacks
jurisdiction to address the appeal. Plaintiff filed an objection. We took the motion with the case.
¶ 18 Under Rule 307(a), “the appeal must be perfected within 30 days from the entry of
the interlocutory order,” and an Illinois Supreme Court Rule 328 (eff. July 1, 2017) supporting
record “must be filed in the Appellate Court within the same 30 days unless the time for filing the
Rule 328 supporting record is extended by the Appellate Court or any judge thereof.” Ill. S. Ct. R.
307(a) (Nov. 1, 2017); see 5 ILCS 70/1.11 (West 2022) (due date cannot fall on a Saturday,
Sunday, or legal holiday). Thus, the supporting record should have been filed on or before Monday,
June 12, 2023. On June 15, 2023, plaintiff filed a motion for an extension of time to file the
[SEGMENT 37]
supporting record, which this court granted, allowing plaintiff until August 4, 2023, to file the
supporting record. Plaintiff filed the supporting record on July 21, 2023.
¶ 19 While our supreme court has stated its rules are not suggestions and must be
followed, both the supreme court and this court have exercised discretion in determining whether
an appeal should be dismissed for noncompliance with its rules that are not jurisdictional. See
[CITATION], ¶¶ 36-37 (declining to strike
the appellant’s brief for noncompliance with Illinois Supreme Court Rule 341(h) (eff. Oct. 1, 2020)
because it did not hinder the court’s review); [CITATION], 737 (1999)
(noting that “[i]t is within this court’s discretion to strike the plaintiffs’ brief and dismiss the appeal
for failure to comply with Rule 341”). Defendants do not cite any authority indicating the timely
filing of a Rule 328 supporting record is a jurisdictional requirement; the only authority they cite
is a 1976 special concurrence finding that Rule 307’s language that “ ‘the record must be filed’
within the designated time is necessarily mandatory,” based on “[t]he former practice prior to
January 1, 1964.” [CITATION] Here, plaintiff filed a request for an extension three days after the
expiration of the 30-day period. Plaintiff then filed the record within the extended time period.
Plaintiff’s three-day delay in requesting an extension of time to file the supporting record did not
hinder our review of the appeal, and, thus, we find plaintiff’s noncompliance with Rule 307’s time
period for filing the supporting record does not warrant dismissal of her appeal.
¶ 20 Defendants also contend this court lacks jurisdiction over plaintiff’s appeal because
more than 30 days passed between the circuit court’s January 24, 2023, order and the filing of
plaintiff’s notice of appeal; they further assert that the May 12, 2023, order was not an appealable
order. Plaintiff disagrees, contending the appeal is possible under either Illinois Supreme Court
Rule 307(a)(1) (eff. Nov. 1, 2017) or Illinois Supreme Court Rule 303 (eff. July 1, 2017).
¶ 21 “An appellate court is under a duty to consider its jurisdiction and to dismiss an
appeal if jurisdiction is lacking.” [CITATION]. Accordingly, this court must determine the question of its jurisdiction prior to
deciding the appeal’s merits. Id. We begin by examining Rule 307(a)(1).
¶ 22 Rule 307(a)(1) provides that an appeal may be taken to this court from an
interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify
an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2017). The rule has been interpreted as follows:
“Rule 307(a)(1) permits interlocutory appeals from four types of orders:
(1) orders that deny (i.e., refuse) injunctions; (2) orders that create (i.e., grant)
injunctions; (3) orders that change the effects of (i.e., modify or dissolve) existing
injunctions; and (4) orders that perpetuate the effects of (i.e., refuse to modify or to
dissolve) existing injunctions.” [CITATION]
Under Illinois law, an order compelling arbitration is considered an injunctive order and thus an
appealable interlocutory order under category (2) of Rule 307(a)(1). [CITATION] Consequently, the denial
of a motion for reconsideration of an order compelling arbitration falls under category (4) as an
order that refuses to dissolve an injunction. An order refusing to compel arbitration falls under
category (1) as an order that denies an injunction. However, an order denying reconsideration of a
refusal to compel arbitration cannot fall under category (3) or (4) because there is no preexisting
injunction in place. [CITATION] In [CITATION], the Second District of the Appellate Court faced the
question of whether such an order effectively denies an injunction and thus is appealable under
category (2). [CITATION] The court concluded that the order was not appealable. [CITATION]
¶ 23 Defendants assert the [CITATION] decision should not be followed because it runs afoul
of the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq. (2024)). In [CITATION], the United States Supreme Court reaffirmed
that the FAA preempts “any state rule discriminating on its face against arbitration,” as well as
rules that covertly accomplish the same objective. However, the [CITATION] decision does not
discriminate against arbitration either facially or covertly because its reasoning did not depend on
the fact that the injunctive relief being sought was an order compelling arbitration. [CITATION] (addressing “the imminent burdens of an injunction”); see [CITATION]
(examining [CITATION], a case
involving mortgages rather than arbitration). As such, we find that [CITATION] is arbitration neutral
and does not run afoul of the FAA.
¶ 24 In this case, the circuit court’s January 24, 2023, order was an injunctive order
because it granted defendants’ motion to compel arbitration and stay the proceedings. Thereafter,
the court’s May 12, 2023, order refused to dissolve an existing injunction by denying plaintiff’s
motion to vacate the January 24, 2023, order. As such, both orders were appealable under Rule
307(a)(1). [CITATION]. Plaintiff’s notice of appeal was filed on June 8, 2023,
which was within the 30-day period for filing an appeal under Rule 307(a) for the May 12, 2023,
order. Accordingly, we have jurisdiction over the appeal from the court’s May 12, 2023, order and
deny defendants’ motion to dismiss plaintiff’s appeal. Because we have jurisdiction under Rule
307(a), we need not address plaintiff’s alternative argument under Rule 303.
¶ 25 B. Preliminary Matters
¶ 26 Before reaching the merits of the issues presented, we must address two preliminary
matters: (1) whether the circuit court erred by not conducting an evidentiary hearing and (2) the
appropriate standard of review.
¶ 27
. Evidentiary Hearing
¶ 28 Plaintiff argues that the circuit court erred by failing to conduct an evidentiary
hearing before referring this case to arbitration. Plaintiff suggests that an evidentiary hearing is
required by section 2(a) of the Uniform Arbitration Act (710 ILCS 5/2(a) (West 2022)), but that
section simply states that the court should “proceed summarily” if there is a dispute about the
existence of an agreement to arbitrate. Plaintiff also cites section 2 of the FAA (9 U.S.C. § 2
(2024)) and federal regulations (42 C.F.R. § 483.70 (2016)), but she fails to identify what language
in these provisions provides for an evidentiary hearing.
¶ 29 In this case, the circuit court held a hearing on January 19, 2023, and no party at
the hearing sought to present additional evidence. All parties had the opportunity to attach
supporting documents to their proceedings, but only defendants did so. After considering the
parties’ arguments and defendants’ supporting material, the court made a summary determination.
As such, we do not find plaintiff’s citation to [CITATION] persuasive because the court there “failed to make a substantive
determination of any of [the factual and legal] issues when it entered its order.” Moreover, we note
that “ ‘[a] party cannot sit idly by while the trial court undertakes a course of action and then allege
error in that regard.’ ” [CITATION] Plaintiff did just that by
failing to attempt to present any evidence in support of her position. We find no abuse of discretion
in regard to how the hearing was conducted.
¶ 30
. Standard of Review
¶ 31 Where, as here, there was no evidentiary hearing below and the motion to compel
arbitration was decided on the basis of the parties’ written submissions, the appropriate standard
of review is de novo. [CITATION]
¶ 32 C. Application of the FAA in Illinois Courts
¶ 33 Resolution of this case requires us to apply both Illinois law and federal law to
different aspects of the analysis. The applicable federal law is the FAA, which was enacted by
Congress “in response to judicial hostility to arbitration.” [CITATION] “The basic purpose of the FAA is to overcome
the historical reluctance of courts to enforce agreements to arbitrate.” [CITATION] Section 2 of the FAA provides as follows:
- 10 - “A written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, or the refusal to perform the whole or
any part thereof, or an agreement in writing to submit to arbitration an existing
controversy arising out of such a contract, transaction, or refusal, shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity
[SEGMENT 38]
for the revocation of any contract ***.” 9 U.S.C. § 2.
It has long been established that “the FAA applies in state as well as federal court and preempts
conflicting state laws.” [CITATION].
¶ 34 “The division of labor between courts and arbitrators is a perennial question in cases
involving arbitration clauses.” [CITATION].
This is especially challenging when the arbitration clause contains a delegation clause, which is
“an agreement to arbitrate threshold issues concerning the arbitration agreement.” [CITATION].
The United States Supreme Court has recognized
“parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties
have agreed to arbitrate or whether their agreement covers a particular controversy.” [CITATION].
Unless the party opposing arbitration specifically challenges the delegation clause, the court must
treat it as valid and enforce it, leaving any challenge to the validity of the arbitration agreement as
a whole for the arbitrator. [CITATION]. Similarly, “a challenge to the validity of the contract as a
whole, and not specifically to the arbitration clause, must go to the arbitrator.” [CITATION].
- 11 -
====== End of Part of Court Ruling ====== ¶ 35 That is not to say that there is no role for a court to play when it is asked to enforce
an arbitration agreement. “Even the most sweeping delegation cannot send the contract-formation
issue to the arbitrator, because, until the court rules that a contract exists, there is simply no
agreement to arbitrate.” [CITATION]; see [CITATION] (noting that “where the
dispute at issue concerns contract formation, the dispute is generally for courts to decide”). The
United States Supreme Court has stated, “The issue of the contract’s validity is different from the
issue whether any agreement between the alleged obligor and obligee was ever concluded.”
[CITATION] (noting that whether the contract was ever signed, or whether the
signor had the authority and mental capacity to assent, were contract formation issues that could
be addressed by the court).
¶ 36 Consequently, based on the foregoing, we must decide (1) under Illinois law,
whether a contract for arbitration was formed and, if so, (2) under the FAA, whether federal law
requires that the arbitrator address any other disputes between the parties.
¶ 37
. Formation of an Arbitration Agreement
¶ 38 Where, as here, a party challenges the formation of an arbitration agreement, it is a
question going “to the making of the agreement to arbitrate” and may be adjudicated by the court.
[CITATION] This is entirely consistent with what the United States Supreme Court has identified as
“the ‘first principle’ of [its] FAA jurisprudence: that ‘[a]rbitration is strictly “a matter of
consent.” ’ ” [CITATION] (quoting [CITATION], quoting [CITATION]). Defendants here concede that the circuit court was entitled to examine
questions of contract formation.
- 12 - ¶ 39 As noted above, the question of whether the parties formed a contract for arbitration
is one to be determined according to Illinois law. The analysis may differ, however, depending on
which type of claim is being examined. Consequently, our contract formation analysis looks
separately at the question of whether there was a valid contract formed for arbitration of the
decedent’s claims brought under the Survival Act, as opposed to the claims of the next of kin under
the Wrongful Death Act.
¶ 40 a. Decedent’s Claims Under the Survival Act
¶ 41 With respect to the issues of contract formation, plaintiff argues that decedent’s
medical power of attorney did not vest her with the authority to agree to enter into a contract for
arbitration on decedent’s behalf. However, plaintiff completely ignores the fact she was also the
decedent’s financial power of attorney, and defendants submitted both powers of attorney in
support of their motion to compel arbitration. Thus, even if plaintiff was not authorized to agree
to arbitration as the decedent’s agent under the medical power of attorney, she may have been
authorized under the financial power of attorney.
¶ 42 Plaintiff has completely failed to address her authority under the financial power of
attorney as a basis for execution of the agreement to arbitrate. Indeed, at oral argument, counsel
suggested that no such document was part of the record or argued below; both statements are flatly
incorrect.
“A reviewing court is entitled to have issues clearly defined with pertinent authority
cited and cohesive arguments presented [CITATION], and it is not a repository into
which an appellant may foist the burden of argument and research [CITATION]; it is
neither the function nor the obligation of this court to act as an advocate or search
- 13 - the record for error.” (Internal quotation marks omitted.) [CITATION]
¶ 43 Accordingly, as to decedent’s direct claims made under the Survival Act, plaintiff
has failed to show she was not authorized to sign the arbitration agreement. As such, the circuit
court’s determination that “an agreement to arbitrate was properly formed” was not erroneous.
¶ 44 b. Wrongful Death Claims
¶ 45 Plaintiff argues that the circuit court could not refer the wrongful death claims to
arbitration because “neither a resident [n]or his agent has the authority to bind heirs asserting a
wrongful death claim,” citing [CITATION].
¶ 46 Though lengthy, plaintiff’s complaint is exceedingly confusing as to what claims
are being brought. For example, each claim asserts in its final paragraph that it is brought pursuant
to the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2022)). Just as clearly, however,
the introductory declaration of the complaint states that it is brought “in accordance with the
Illinois Wrongful Death Act (740 ILCS 180.01) and Survival Act (755 ILCS 5/27-6).” The prayer
in each count also requests “all elements of damages permitted under 740 ILCS 180.01,” i.e., the
Wrongful Death Act. If the motion before the circuit court had been one directed at the sufficiency
of the pleadings, sorting out these errors would be in order. In the instant context, however, the
initial question is simply whether plaintiff’s complaint represents an attempt to bring a claim under
the Wrongful Death Act; though her complaint may be defective in form, plaintiff’s intention to
bring such a claim is clear.
¶ 47 The real parties in interest in a wrongful death claim are the decedent’s next of kin.
[CITATION] There are references to decedent’s “family” in
plaintiff’s complaint, but the next of kin are not specifically identified. However, defendants
- 14 - concede that plaintiff is decedent’s daughter, so at least her status as one of decedent’s next of kin
is known. While it is true that plaintiff signed the admission and arbitration agreements, she did so
only in a representative capacity for decedent. Thus, there is nothing in the record to show that any
arbitration agreement was ever formed between defendants and decedent’s next of kin in an
individual capacity.
¶ 48 The supreme court’s decision in [CITATION] controls the determination of whether the
wrongful death claims must be sent to arbitration. In a case with facts similar to those at issue here,
the supreme court held that wrongful death claims arising out of the death of a nursing home
resident were not subject to an arbitration agreement to which the wrongful death beneficiaries
were not parties:
“For purposes of count I of the complaint, which alleges a violation of the
Nursing Home Care Act by defendant pursuant to our survival statute, plaintiff is
bound to arbitrate that claim, which had already accrued to Gott prior to death and
which is brought for the benefit of Gott’s estate. For purposes of count II, the
wrongful-death action, plaintiff is not acting in Gott’s stead. As already discussed,
a wrongful-death action does not accrue until death and is not brought for the
benefit of the decedent’s estate, but for the next of kin who are the true parties in
interest. Plaintiff, as Gott’s personal representative in the wrongful-death action, is
merely a nominal party, effectively filing suit as a statutory trustee on behalf of the
next of kin. [CITATION.] Plaintiff is not prosecuting the wrongful-death claim on
behalf of Gott, and thus plaintiff is not bound by Gott’s agreement to arbitrate for
purposes of this cause of action.” [CITATION], ¶ 57.
- 15 -
====== End of Ruling ====== ¶ 49 The supreme court’s decision in [CITATION] was made after full consideration of the
application of the FAA. The conclusion that the beneficiaries could not be bound by an agreement
to which they were not parties is consistent with the “first principle” of FAA jurisprudence: that
arbitration is strictly a matter of consent. [CITATION]. In any
event, the supreme court’s decision in [CITATION] binds us here and requires that we reverse the
circuit court’s order sending the wrongful death claims to arbitration.
¶ 50
. Referral of Survival Act Claims to Arbitration
¶ 51 Despite the formation of an arbitration agreement between the parties that would
apply to the Survival Act claims, plaintiff advances a number of arguments against referral of those
claims to arbitration: (1) the existence of a federal regulation that came into effect after the signing
of the agreement, (2) state law contract defenses she contends must be resolved by the circuit court,
[SEGMENT 39]
and (3) the application of the contract’s termination on “discharge” language, which she contends
was triggered by the decedent’s death and thus defeats the arbitration agreement. There can be no
doubt that courts are perfectly capable of addressing and resolving issues such as these, but the
question is whether the parties have contractually agreed that they would be resolved by the
arbitrator, and not by a court. In this context, the delegation clause in the parties’ agreement is of
critical importance.
¶ 52 A delegation clause is a provision in an arbitration agreement that clearly and
unmistakably gives the arbitrator the exclusive authority to resolve any dispute about the validity
and enforceability of the arbitration agreement. [CITATION]. Here, the
contract recites the parties’ agreement that “any disputes arising hereunder shall be submitted to
binding arbitration and not to a court.” The agreement further provides that the arbitration “shall
be conducted in accordance with the rules of the American Arbitration Association (‘AAA’).” The
- 16 - AAA’s rules provide that the arbitrator “shall have the power to determine the existence or validity
of a contract of which an arbitration clause forms a part” and that “an arbitration clause shall be
treated as an agreement independent of the other terms of the contract.” Consumer Arbitration
Rules, Am. Arbitration Ass’n, at 17 (eff. Sept. 1, 2014),
https://adr.org/sites/default/files/Consumer%20Rules.pdf [https://perma.cc/43K2-39PH];
Commercial Arbitration Rules and Mediation Procedures, Am. Arbitration Ass’n, at 13 (eff. Oct.
1, 2013), https://adr.org/sites/default/files/Commercial%20Rules.pdf [https://perma.cc/UXK5-
LCJU].
¶ 53 As discussed above, it is clear that an agreement to arbitrate has been formed.
Consequently, all of the issues raised by plaintiff—including the question of whether the
decedent’s death constitutes a “discharge” terminating the agreement—are issues the parties have
already agreed will be decided by the arbitrator. “When the parties’ contract delegates the
arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in
the contract.” [CITATION]. This is true even if the court considers the dispute being referred to arbitration as
“wholly groundless,” as this “confuses the question of who decides arbitrability with the separate
question of who prevails on arbitrability.” Id. at ___, 139 S. Ct. at 531.
¶ 54 Were we simply construing the parties’ agreement under Illinois contract law, we
would not be troubled by the fact that the arbitration agreement was on a document separate from
the admission agreement to which it relates; we would apply the established rule that “instruments
executed at the same time, by the same parties, for the same purpose, and in the course of the same
transaction are regarded as one contract and will be construed together.” [CITATION]. “[A]s a matter of substantive federal arbitration law” under the FAA,
- 17 - however, “an arbitration provision is severable from” the arbitration clause itself. [CITATION]
This “arbitration law applies in state as well as federal courts,” meaning that “unless
the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by
the arbitrator in the first instance.” [CITATION] Consequently, while the parties disagree about
whether the admission agreement has terminated as a result of the decedent’s death, there is no
argument that the arbitration agreement terminated as a result of a provision specific to it. Because
plaintiff asserts the termination of the agreement as a whole, and not of the arbitration agreement
in particular, the dispute is one the arbitrator must address.
¶ 55 Plaintiff’s reliance on [CITATION], for the opposite conclusion is entirely understandable. However, [CITATION] only
superficially appears to have addressed the issues presented here. In [CITATION], the contract provided
that it terminated “ ‘immediately upon the resident’s death.’ ” Id. ¶ 5. The contract here, however,
terminates on “discharge.” Whether death constitutes a “discharge” that triggers termination of the
contract is a question of contract interpretation, and “matters of contract interpretation are for an
arbitrator to decide initially.” [CITATION]
It is also unclear whether the arbitration agreement at issue in [CITATION] had a delegation clause.
¶ 56 More fundamentally, [CITATION] never addressed—and was not asked to address1 —
the impact of the FAA. Here, on the other hand, the preclusive effect of the FAA constitutes the
The parties in [CITATION] did not mention the FAA as part of their case on appeal. See Brief of Appellants, at
10-11, [CITATION] (No. 129067), https://ilcourtsaudio.blob.core.windows.net/antilles-
resources/resources/4a056dea-abcd-4573-a60b-234b9feb3852/129067_ATB.pdf [https://perma.cc/WV4Q-V3KP]
(referencing only “the strong federal policy favoring the use and enforceability of arbitration agreements”); Brief of
Appellee, [CITATION] (No. 129067), https://ilcourtsaudio.blob.core.windows.net/antilles-
resources/resources/bae893b0-85e8-4166-a994-7e279b463cb3/129067_AEB.pdf [ https://perma.cc/8VBJ-DRFG ]
(making no reference to federal law); Reply Brief of Appellants, [CITATION] (No. 129067),
https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/8518b1ae-6d46-4517-965d-
c82239db3009/129067_RPB.pdf [https://perma.cc/9GJC-HLK4] (same).
- 18 - heart of defendants’ position on appeal. We are mindful that this court has a duty to apply the
supreme court’s precedent to the facts of the case before us; when the supreme court has declared
the law on any point, it alone can overrule and modify its previous opinion. [CITATION]. It is also true, however, that “ ‘[a] judicial opinion is a response to the issues
before the court *** [and] must be read in the light of the issues that were before the court for
determination.’ ” [CITATION] (quoting [CITATION]). Because [CITATION] does not address application of the FAA to the issues
presented in that case, our FAA analysis addresses matters that the supreme court was never asked
to consider. As explained above, the FAA analysis is crucial to the outcome of this case.
¶ 57 Similarly, in [CITATION], this court interpreted essentially identical language in an arbitration agreement and
concluded that the patient’s death triggered the termination on “discharge” provision and
effectively ended the arbitration agreement. One could validly distinguish [CITATION] from this case by
noting that the question of whether there had been a “discharge” was conceded there, while here
it is not. While a plausible distinction, it does not go far enough, as it fails to account for more
fundamental differences between the analysis in [CITATION] and the one we have undertaken here. The
court in [CITATION] never addressed any of the applicable United States Supreme Court precedent
establishing that, under the federal law applicable here, it is our duty to defer all other matters to
the arbitrator once we find that an arbitration agreement has been validly formed. See [CITATION] (courts must examine
the question of arbitrability by applying the “ ‘federal substantive law of arbitrability, applicable
to any arbitration agreement within the coverage of the Act,’ ” (quoting [CITATION])). The question of whether the
- 19 - decedent’s death constitutes a “discharge” that terminates the contract is one squarely within the
delegation clause, so it must be answered by the arbitrator.
¶ 58 Plaintiff argues that the FAA does not preempt state law contract defenses, citing
[CITATION], and [CITATION]. These cases do not support plaintiff’s argument. In [CITATION]
, the supreme court addressed not a defense to contract formation, but the separate question of
whether the parties had formed an agreement to arbitrate at all; as explained above, this is an issue
for the court to decide. See [CITATION]. Here, on the other hand, the formation
of the arbitration agreement is established. In [CITATION], ¶ 15-17, the
defense of unconscionability was raised against the arbitration agreement specifically, not against
the contract as a whole, and the court had the authority to conclude that the arbitration agreement
was unconscionable. See [CITATION] (explaining the “separate enforceability of
arbitration provisions”). Moreover, the arbitration agreement in [CITATION] did not include a
separate delegation provision (see [CITATION], ¶ 4); otherwise, even this
challenge would have been referred to the arbitrator under the delegation provision. Here, plaintiff
is challenging the contract as a whole, not the arbitration agreement or the delegation provision.
[SEGMENT 40]
¶ 59 In short, because plaintiff has not “challenged the delegation provision
specifically,” we are obligated to give it and the arbitration agreement full effect. See [CITATION] (finding the court must treat the delegation provision as valid and enforce
it unless the party opposing arbitration challenged the delegation provision specifically).
¶ 60 III. CONCLUSION
¶ 61 For the reasons stated, we affirm the Jersey County circuit court’s May 12, 2023,
order denying plaintiff’s motion to vacate and set aside the court’s January 24, 2023, order
- 20 - compelling arbitration of the claims brought pursuant to the Survival Act. We reverse the court’s
order insofar as it compelled the arbitration of the Wrongful Death Act claims and remand as to
those claims. On remand, the circuit court retains discretion to either proceed to litigation of the
Wrongful Death Act claims or stay those proceedings pending the outcome of the arbitration of
the Survival Act claims. See [CITATION].
¶ 62 Affirmed in part and reversed in part.
¶ 63 Cause remanded with directions.
¶ 64 JUSTICE HARRIS, specially concurring:
¶ 65 I agree with the majority analysis and disposition. I write separately to address my
concurrence in [CITATION]. As has
already been discussed, this court in [CITATION] addressed similar circumstances and claims on appeal
but reached a different result. In [CITATION], we found that upon the resident’s discharge, the
residential contract, including the arbitration provision and delegation clause, ceased to exist. Id.
¶ 48. Based on a finding that the entire contract, including the arbitration provision, was
terminated, we concluded the circuit court had correctly denied the defendants’ motion to compel
arbitration.
¶ 66 However, after further consideration, I am persuaded by defendants’ argument in
this case that after a court has determined that an arbitration agreement, such as the agreement here
and the one in [CITATION], was formed, any other issue relating to the existence or enforceability of the
arbitration agreement is reserved for the arbitrator to decide. This is owing to the preclusive effect
of the agreement’s delegation clause on a court’s authority to decide. Under the
circumstances here, like in [CITATION], the FAA and United States Supreme Court precedent compels
the conclusion that if a valid delegation clause exists, issues regarding arbitrability are reserved
for the arbitrator, not the court. [CITATION]. The existence of an unchallenged delegation clause in this case
means the question whether the resident’s death constituted a “discharge” was to be answered by
the arbitrator.
¶ 67 PRESIDING JUSTICE TURNER, concurring in part and dissenting in part:
¶ 68 I would affirm the circuit court’s judgment in toto. The matter of what parties and
claims are bound by the arbitration agreement is a question of arbitrability and is not related to the
formation of the arbitration agreement itself. Here, we have a valid nursing home admission
contract with an addendum containing an arbitration agreement. Plaintiff does not dispute the
arbitration agreement contains a broad delegation clause. As such, all matters of arbitrability,
including what claims are bound by the arbitration agreement (scope/enforceability), are questions
for the arbitrator to decide.
¶ 69 As the majority explains, even with a delegation clause, the circuit court determines
whether the arbitration agreement was formed. Supra ¶ 35. Despite the circuit court finding an
agreement to arbitrate was properly formed and delegating to the arbitrator the other contentions
raised by plaintiff in response to defendants’ motion to compel arbitration, plaintiff, the appellant,
simply realleges her same arguments she raised in the circuit court on appeal and does not develop
any arguments as to why those issues should be decided by a court and not the arbitrator.
Defendants contend the court properly found an arbitration agreement was formed, given the
decedent’s powers of attorney, and then asserted all of plaintiff’s other issues were matters for the
arbitrator under the delegation clause. Plaintiff did not respond to defendants’ aforementioned
contention. As such, plaintiff never argued on appeal her wrongful death claims could be
considered by the court because those claims were matters of contract formation and not
arbitrability. On page 25 of her brief, plaintiff asserts, even with “an enforceable arbitration
- 22 - agreement,” that agreement could not be “enforced” against those who did not sign the agreement,
which is an arbitrability challenge. See [CITATION] (stating questions of arbitrability include enforceability, scope, or
applicability of the parties’ arbitration agreement). The majority should not have crafted a contract
formation argument for plaintiff, who was the appellant and had the burden of presenting
developed arguments to this court. This court is “entitled to have the issues on appeal clearly
defined with pertinent authority cited and a cohesive legal argument presented.” (Emphases added
and internal quotation marks omitted.) [CITATION]. Regardless, the majority’s analysis is flawed.
¶ 70 In finding it could address the arbitrability of plaintiff’s wrongful death claims
because that issue was one of contract formation, the majority finds our supreme court’s decision
in [CITATION] is controlling. There, the supreme court addressed two challenges to
the arbitrability of the plaintiff’s claims. See [CITATION]. However, no contract
formation issues related to the two arbitration agreements were before the supreme court. See
[CITATION]. Specifically, contract formation involves an offer, an acceptance,
and consideration ([CITATION])), and no challenges to those elements were raised against the two arbitration agreements in
[CITATION]. The arbitrability challenges were properly before the court because the arbitration
agreement in that case did not contain a delegation clause. [CITATION]. Without
a delegation clause in an arbitration agreement, “gateway matters of arbitrability” are for the court
to determine. [CITATION]. Thus, the issue before the supreme court in
[CITATION] was whether the plaintiff’s wrongful death claims were bound by the two existing
- 23 - arbitration agreements or, stated differently, whether the two arbitration agreements applied to or
were enforceable against the plaintiff’s wrongful death claims. See [CITATION],
¶ 56. While the supreme court examined who were the parties to the two arbitration agreements in
answering that question in the negative ([CITATION], ¶ 56), the supreme court did
not in any way indicate the question presented was one of contract formation and not a matter of
arbitrability. I note the [CITATION] analysis frequently refers to whether the plaintiff was “bound” by
the agreements to arbitrate, indicating an issue of enforceability/applicability of the existing
arbitration agreements. See [CITATION], ¶¶ 54, 56-57. The [CITATION] decision may
control the issue of whether the arbitration agreement in this case is enforceable against plaintiff’s
purported wrongful death claims, but that decision is for the arbitrator, given the delegation clause
in the arbitration agreement.
¶ 71 The majority’s jumping to the merits of the arbitrability issue, despite a valid
delegation clause, was expressly rejected by the United State Supreme Court in [CITATION]. There, the Supreme Court addressed the propriety of some
courts deciding the arbitrability question themselves, where the argument “the arbitration
agreement applies to the particular dispute [was] ‘wholly groundless.’ ” [CITATION]. In rejecting that approach, the Supreme Court noted, “Just as a
court may not decide a merits question that the parties have delegated to an arbitrator, a court may
not decide an arbitrability question that the parties have delegated to an arbitrator.” [CITATION]. Here, the majority precisely does what the United States
Supreme Court has enjoined.
¶ 72 Here, plaintiff does not develop any argument disputing the circuit court’s finding
the arbitration agreement’s applicability to her wrongful death claims was a question of
- 24 - arbitrability delegated to the arbitrator. Accordingly, I would affirm the circuit court’s finding the
question of whether the wrongful death claims were bound by the arbitration agreement was one
for the arbitrator.
¶ 73 Likewise, I note my disagreement with this court’s recent analysis in [CITATION]. There, in direct contravention of Henry Schein, Inc., the analysis entirely
ignored the appellant’s argument the circuit court erred by failing to enforce a delegation clause in
the arbitration agreement. Instead, this court only addressed the merits of one of the arbitrability
arguments. [CITATION], ¶¶ 25-26. Moreover, regardless of the existence of a
delegation clause in [CITATION], a challenge to the validity of the contract as a whole, such as seeking to
enforce a termination upon death clause in the nursing home admission contract, is a matter for
the arbitrator and not the court. See [CITATION] (noting unless the challenge is
specifically to the arbitration provision, the issue of the contract’s validity is considered by the
arbitrator). As such, the effect of the termination-upon-death clause in the admission contract on
the arbitration agreement in [CITATION] was a matter for the arbitrator.
- 25 - [CITATION]
Decision Under Review: Appeal from the Circuit Court of Jersey County, No. 22-LA-11;
the Hon. Allison Lorton, Judge, presiding.
Attorneys Lanny Darr, of Darr Law Offices, Ltd., of Alton, for appellant.
for
Appellant:
[SEGMENT 41]
Attorneys Donna J. Fudge, of Fudge Broadwater, P.A., of St. Petersburg,
for Florida, for appellees.
Appellee:
- 26 -
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
2024 IL App (4th) 240200-U
NOTICE FILED
This Order was filed under Su- August 6, 2024
NOS. 5-24-0200, 5-24-0202 cons.
preme Court Rule 23 and is not Carla Bender
precedent except in the limited
IN THE APPELLATE COURT
th District Appellate
circumstances allowed under Court, IL
Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
RYAN J. MAHONEY, Individually and on Behalf of ) Appeal from the
Cates Mahoney, LLC, ) Circuit Court of
Plaintiff-Appellant and Cross-Appellee, ) Madison County
v. ) No. 22LA1440
DAVID I. CATES and THE CATES LAW FIRM, )
LLC, ) Honorable
Defendants-Appellees and Cross- ) Sarah Danielle Smith,
Appellants. ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice Cavanagh and Justice Lannerd concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed in part and reversed in part the judgment of the trial
court because (1) the separation agreement was a distinct agreement that did not
contain its own arbitration provision or incorporate the operating agreement’s
arbitration provision and (2) plaintiff’s claims fell outside the scope of the
arbitration provision.
¶2 In January 2013, plaintiff, Ryan Mahoney, and defendant, David Cates, formed the
law firm Cates Mahoney, LLC (“Cates Mahoney” or “the firm”), and executed an operating
agreement that would govern the firm’s operations. In March 2022, Cates, as majority member,
unilaterally dissolved Cates Mahoney, initiating a wind-up period for the firm. During that period,
Mahoney and Cates negotiated a separation agreement, which they executed in August 2022.
¶3 Shortly after executing the separation agreement, Mahoney discovered that, prior
to the execution of the separation agreement, Cates had mediated and settled two of the firm’s
cases, which generated approximately $9.5 million in fees. As a result, in November 2022, Mahoney filed a five-count complaint, individually and on behalf of Cates Mahoney, against Cates
and his new law firm, The Cates Law Firm, LLC, alleging breach of fiduciary duty and fraud
during (1) the dissolution and wind-up of Cates Mahoney and (2) negotiation of the separation
agreement, as well as breach of the separation agreement.
¶4 In January 2023, Cates filed a motion to dismiss and compel arbitration, arguing
that the claims were subject to the arbitration provision contained in the operating agreement.
Mahoney responded that the claims were not subject to arbitration because they arose from the
separation agreement, which did not contain an arbitration provision. The trial court granted in
part and denied in part Cates’s motion, finding that two of the five claims were arbitrable while
the remaining three claims were not.
¶5 Mahoney appeals, arguing that the trial court erred by finding any of the claims
were arbitrable because (1) the express language of the operating agreement’s arbitration provision
limits the scope of that provision to claims that can be determined solely in accordance with the
terms of the operating agreement, whereas Mahoney’s claims require determination under the
terms of the separation agreement, and (2) the separation agreement does not contain its own
arbitration provision or incorporate, modify, or expand the arbitration provision in the operating
agreement.
¶6 Cates cross-appeals, arguing that the trial court erred by finding any of the claims
were not arbitrable because (1) the parties entered into a valid agreement to arbitrate any
controversies arising out of or relating to the operating agreement and (2) the parties incorporated
the arbitration provision into the separation agreement.
¶7 We agree with Mahoney that none of his claims were subject to arbitration and,
accordingly, affirm in part and reverse in part the trial court’s judgment.
¶8 I. BACKGROUND
¶9 At the outset, we note that this case originated in the Fifth District of the Illinois
Appellate Court but was assigned by the Illinois Supreme Court to this court for resolution.
¶ 10 A. The Complaint
¶ 11 In November 2022, Mahoney filed a five-count complaint against Cates asserting
claims of breach of fiduciary duty, fraud, and breach of contract arising from (1) the dissolution
and winding-up of Cates Mahoney and (2) the negotiation and execution of the parties’ separation
agreement. The complaint specifically alleged the following.
¶ 12
. Allegations Regarding the Founding of Cates Mahoney
¶ 13 In January 2013, Mahoney and Cates founded the law firm of Cates Mahoney and
practiced law together pursuant to the firm’s operating agreement. Cates was the managing
member and owned a 60% interest in the firm, whereas Mahoney owned a 40% interest in the firm.
¶ 14 Under the terms of the operating agreement, profits up to $400,000 would be split
50-50 between Cates and Mahoney, while profits over $400,000 would be split 60-40 between
Cates and Mahoney, respectively. The operating agreement also contained a provision for the
division of profits for cases resolved after dissolution, directing that the originating member would
receive one-third of the profits and the remaining two-thirds would be divided on a quantum meruit
basis in proportion to the work performed on the case by each member.
¶ 15 The operating agreement also provided that each member promised to “cooperate
in every regard in the winding up of the Firm affairs.”
¶ 16
. Allegations Concerning the Blue Cross and Macia Cases
¶ 17 In October 2015, Cates Mahoney filed a complaint on behalf of a client in a case
identified as Blue Cross. In November 2020, Cates took a leave of absence from the firm, during
which time Mahoney “oversaw and ran all of [Cates Mahoney’s] cases and operations, including
Blue Cross.” Mahoney spent substantial time litigating Blue Cross, including appearing in court,
participating in phone conferences, and addressing discovery disputes. Even after Cates returned
in January 2021, Mahoney continued to work on Blue Cross. In February 2021, the parties agreed
to engage in mediation. Mahoney worked on the draft mediation statement, while Cates
participated in the mediation. During the mediation, Cates provided Mahoney with updates of the
parties’ respective settlement positions. In November 2021, Mahoney stopped receiving
correspondence or notices of the weekly calls in Blue Cross.
¶ 18 In 2014, Cates Mahoney (with co-counsel) filed a class action counterclaim in a
case identified as [CITATION]. In May 2022, the trial court in [CITATION] entered a sanctions order assessing
a $4000 per day sanction and awarding Cates Mahoney and its co-counsel reasonable costs and
fees incurred in preparing and prosecuting five discovery motions. Later in May 2022, co-counsel
e-mailed opposing counsel, copying Cates, stating that he was agreeable to participating in
mediation under the condition that plaintiffs’ counsel would not negotiate the sanctions award,
which, at that time, totaled $676,000 and was still accruing. Cates failed to disclose to Mahoney
(1) the e-mail, (2) the amount of the sanctions award, or (3) the fact that the firm remained entitled
to the sanctions award.
¶ 19 On May 25, 2022, without Mahoney’s knowledge, the Blue Cross parties conducted
a second mediation, which did not appear on the firm’s “joint calendar” or “daily reminder.” Cates
Mahoney maintained the joint calendar for all attorneys at the firm, and the daily reminder was an
e-mail to all attorneys and staff listing the following day’s calendared items. Cates participated in
the mediation, at which the parties reached an agreement to settle Blue Cross. Cates never told
Mahoney about the second mediation, including the agreement to settle Blue Cross.
¶ 20 On May 26, 2022, opposing counsel in Macia sent an e-mail to Cates Mahoney’s
co-counsel, copying Cates, that contained a settlement offer proposing that the defendants would
pay “[$]1.5 million to the lawyers for fees/costs,” including the “sanction issue.” Opposing counsel
also agreed that the defendants would pay for the costs associated with a second mediation, to be
scheduled for June 20, 2022. Cates did not disclose to Mahoney the Macia settlement offer.
¶ 21
. Allegations Regarding the Dissolution and Winding-Up Period
¶ 22 On May 27, 2022, Cates, as majority owner, unilaterally dissolved the Cates
Mahoney law firm. Thereafter, Cates and Mahoney began negotiating a separation agreement. On
May 31, 2022, Cates provided Mahoney with a list of all pending Cates Mahoney cases. The list
“did not reveal the Mediation or agreement to settle Blue Cross or the pending [CITATION]
Sanctions Award.”
[SEGMENT 2]
¶ 23 On June 2, 2022, Cates and Mahoney met to review the firm’s pending cases,
including (1) the division of such cases, (2) cases that had settled or were close to settling,
(3) anticipated funds pursuant to settlements, and (4) the distribution of Cates Mahoney funds.
During that meeting, Cates did not disclose to Mahoney the mediation or agreement to settle Blue
Cross or the [CITATION] settlement proposal or sanctions award.
¶ 24 On June 20, 2022, Cates participated in an all-day mediation of [CITATION], which
resulted in a settlement.
¶ 25 On June 23, 2022, without Mahoney’s knowledge, Cates filed a motion in Blue
Cross substituting his new firm, Cates Law, for Cates Mahoney. Around that same time, Mahoney
asked Cates if [CITATION] had settled at the June 20, 2022, mediation, and Cates responded that it had
not.
¶ 26 On June 30, 2022, Mahoney asked Cates to provide the most recent settlement
proposal in Macia. Cates responded that he had nothing and was still “waiting on the defendants
to send us a proposal.” In that same communication, Mahoney asked if there were any other cases
“where settlements are pending or agreed in principle.” Cates again did not disclose the Blue Cross
mediation and also did not include either Blue Cross or Macia among the cases with pending
settlements. Cates also stated (1) “we do not have an agreement on the meaning of the term
‘resolved’ in the operating agreement” and (2) he “[did] not agree that any case that was ‘settled’
or ‘settled in principle’ prior to May 27 is considered ‘resolved’ under the [operating agreement].”
¶ 27 Also on June 30, 2022, Mahoney reviewed the Blue Cross file to confirm whether
a settlement or settlement-in-principle had been reached. The file contained only documents
relating to the February 2021 mediation and contained no mention of the May 2022 mediation.
¶ 28 On July 19, 2022, while still negotiating a separation agreement with Mahoney,
Cates executed on behalf of his new firm, Cates Law, a settlement agreement in Macia, providing
for approximately $4 million in fees to be paid to Cates Law and co-counsel.
¶ 29 On July 29, 2022, without Mahoney’s knowledge, Cates executed on behalf of
Cates Law the settlement agreement in Blue Cross, which stated, “At the conclusion of the [May
25, 2022,] mediation, the parties reached an agreement in principle to resolve [CITATION].”
¶ 30 On August 2, 2022, Cates filed a motion to approve the Blue Cross settlement,
which requested, for Cates Law, approximately $7.45 million in attorney fees and costs and
represented that plaintiffs’ counsel, “including Cates Law” spent “nearly seven years” working on
[CITATION]. The approval motion made no mention of Cates Mahoney even though Cates Law had
been substituted into the case only six weeks earlier. On August 3, 2022, the motion for approval
was granted.
¶ 31
. Allegations Regarding the Separation Agreement
¶ 32 On August 19, 2022, Cates and Mahoney executed the separation agreement that
they had been negotiating. At the time of the execution, Mahoney had no idea of (1) the Blue Cross
mediation, (2) the settlements in [CITATION], or (3) the sanctions award in [CITATION].
¶ 33 The separation agreement provided that “[the proceeds from] any case resolved
prior to dissolution on May 27, 2022, are assets of [Cates Mahoney] and subject to fee sharing of
the Members in accordance with [the operating agreement].” The separation agreement also
defined “resolved” to mean “where a release or settlement agreement has been agreed to and/or
signed by the parties and/or if court approval is required under the law and there are any legitimate
objections to the approval, then after a court has approved the settlement.”
¶ 34 Cates included [CITATION] on Schedule A of the separation agreement and
warranted that “none of the cases identified in Schedule A of this Agreement had resolved prior to
May 27, 2022.”
¶ 35 On September 7, 2022, Mahoney received an e-mail from defense counsel in [CITATION]
advising him to destroy all documents in his possession relating to [CITATION] pursuant to
the trial court’s “final judgment on August 3, 2022.” The following day, Mahoney called defense
counsel and learned that on August 3, 2022—two weeks before Cates and Mahoney signed the
separation agreement—a final judgment in [CITATION] had been entered approving a settlement.
¶ 36 On September 12, 2022, Mahoney obtained from the courthouse copies of the [CITATION]
and [CITATION] filings that revealed the settlements in both matters, which generated a total of
over $9.4 million in fees to Cates and Cates Law that had not been disclosed to Mahoney.
¶ 37 The complaint alleged that the foregoing acts constituted breach of fiduciary duty
(counts I and II), constructive fraud (count III), actual fraud (count IV), and breach of the
separation agreement (count V).
¶ 38 B. Cates’s Motion To Dismiss and Compel Arbitration and Mahoney’s Response
¶ 39 In January 2023, Cates filed a motion to dismiss and compel arbitration, arguing
that Mahoney’s claims were subject to an arbitration provision contained within the operating
agreement. Cates asserted that the execution of the separation agreement did not change the
agreement to arbitrate because the separation agreement “[did] not modify or amend any Article
or Section of the Operating Agreement *** other than where specifically indicated,” and the parties
agreed that the Operating Agreement would “govern and control the Parties’ rights and obligations
with respect to dissolution of the Firm.”
¶ 40 In March 2023, Mahoney filed a written response arguing that, by its express terms,
the operating agreement’s arbitration provision did not apply to the separation agreement.
Specifically, Mahoney claimed that (1) in the operating agreement, the parties expressly limited
arbitration to controversies that could be determined “solely in accordance with the terms of [the
operating agreement]” and Illinois law governing limited liability corporations and (2) in the
separation agreement, the parties expressly chose not to (a) include any arbitration provision or
(b) modify or expand the scope of the operating agreement’s arbitration provision to reach claims
arising out of or relating to the separation agreement. Mahoney also pointed to a provision in the
separation agreement providing that, in the event of a conflict between the operating agreement
and the separation agreement, the terms of the separation agreement would prevail.
¶ 41 C. The Agreements
¶ 42 The parties attached copies of the operating agreement (executed January 1, 2013)
and separation agreement (executed August 19, 2022) to their pleadings.
¶ 43
. The Operating Agreement
¶ 44 The relevant portions of the operating agreement stated as follows:
“Section 10.07 Division of Attorney Fees for Cases Originated Prior to
Dissolution, but Which are Resolved after Dissolution. For any cases originating
prior to the dissolution of the Firm, but which are resolved after the dissolution of
the Firm, the Profits (or Shared Profits) for such cases will be divided amongst the
Members as follows:
***
For New Cases [(originating after January 1, 2013)]: The originating
Member of the matter shall receive 33 1/3% of the Profits. The remaining 66 2/3%
of the Profits shall be divided on a quantum meruit basis in proportion to the work
performed by each Member on the case. In the event the originating Member cannot
be discerned, and/or the case is defined as a Firm Case as set out in section 3.08,
the Profits will be divided in accordance with Section 3.04(B)(1).
***
Section 11.01 Arbitration. Any controversy arising out of or relating to this
Agreement [(the operating agreement)] shall be submitted to arbitration, and not
any Court or other adjudicating body. The controversy shall be determined by the
arbitrator solely in accordance with the terms of this Agreement, and Illinois law
applicable to limited liability companies. The arbitrator is to strictly enforce the
plain language of this Agreement.”
¶ 45
. The Separation Agreement
¶ 46 The relevant portions of the separation agreement stated as follows:
“WHEREAS, Cates made a Resolution to dissolve the Firm, and dissolved
the Firm on May 27, 2022 pursuant to the Operating Agreement for the Firm and
set the date for winding up the business for June 30, 2022; and
WHEREAS, the Parties desire to resolve their respective fee interests in all
cases of the Firm; and
WHEREAS, this Agreement does not modify or amend any Article or
Section of the Operating Agreement for the Firm other than where specifically
indicated herein, and unless indicated otherwise, the Operating Agreement shall
govern and control the Parties’ rights and obligations with respect to dissolution of
[SEGMENT 3]
the Firm.
***
. Quantum Meruit. Cates and Mahoney waive any claim to
quantum meruit in any of the cases retained by each Member of the Cates Mahoney
law firm.
***
. Cases Included as Assets of Cates Mahoney, LLC for Dissolution. The
fees and expense reimbursements for the cases identified in Schedule C to this
Agreement shall be included in the funds available for distribution to the Members
pursuant to Paragraph 11 [of the separation agreement]. The Parties acknowledge
that any case resolved prior to dissolution on May 27, 2022 are assets of the Firm
and subject to fee sharing of the Members in accordance with Article III of the
Operating Agreement. This list was generated and created in reliance on the
representations of each Member with respect to what cases had resolved prior to
dissolution on May 27, 2022. [(In a footnote to this provision, the separation
agreement defined the term “resolved” as set forth supra (¶ 33).]
- 10 - 9. David Cates’s Representations. Cates represents and warrants that ***
none of the cases identified in Schedule A of this Agreement had resolved prior to
May 27, 2022. Cates further acknowledges that Mahoney has relied on said
representations in entering into this Agreement and in accepting the payment
amount estimated in Paragraph 11 below.
***
. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Illinois.
. Severability. Should any part, term or provision of this Agreement be
declared and/or be determined by any court or arbitrator to be illegal or invalid, the
validity of the remaining parts, terms or provisions shall not be affected thereby,
and said illegal or invalid part, term or provision shall be deemed not to be a part
of this Agreement.
***
. Survival of Operating Agreement. As to any conflicts between the terms
of this Agreement and the Operating Agreement, the terms of this Agreement shall
prevail. Except as herein specifically amended, the Operating Agreement for the
Firm is affirmed and declared in full force.”
¶ 47 D. The Trial Court’s Ruling
¶ 48 In March 2023, the trial court conducted a hearing on Cates’s motion to dismiss
and compel arbitration and, in January 2024, issued a written ruling granting that motion in part.
¶ 49 The trial court first addressed “whether the terms of the arbitration provision in the
Operation Agreement apply to the subsequent Separation Agreement.” The court reasoned that,
- 11 - “While the Separation Agreement did not specifically mention the arbitration provision of the
Operating Agreement, the Severability paragraph *** references determination of invalidity ‘by
any court or arbitrator’ thereby seemingly acknowledging arbitration of the Separation Agreement
by both parties.” The court further found that the operating agreement and the separation
agreement “both concern the same subject matter, i.e., the business of operating and dissolving the
Cates Mahoney Law Firm.” On these bases, the court concluded that “the arbitration provision
covers the subsequent agreement.”
¶ 50 The trial court next addressed whether “the controversies and claims at issue and
raised in plaintiffs’ complaint fall within the scope of the arbitration provision.” The court found
that the operating agreement “specifies various issues that would be arbitrable,” particularly those
related to the “Duty of a Member” provision of the operating agreement relating to (1) transferring
firm assets and (2) tampering with information in client files. The court concluded that the
allegations in counts I (breach of fiduciary duty) and V (breach of contract) were “arbitrable
matters contemplated by the parties.”
¶ 51 The trial court further found that the remaining allegations “relate to fraudulent
allegations or fraudulent concealment,” and as such “do not arise out of or are related to the
operating agreement or the separation agreement.” The court reasoned, “The operating agreement
contained specific and detailed language as it relates to the Duty of a member during Dissolution.
However, both agreements are silent as it relates to issues of fraud or fraudulent concealment.” As
a result, the court concluded that counts II (breach of fiduciary duty), III (constructive fraud), and
IV (actual fraud) were not arbitrable.
¶ 52 This appeal followed.
¶ 53 II. ANALYSIS
- 12 - ¶ 54 Mahoney appeals, arguing that the trial court erred by finding any of the claims
were arbitrable because (1) the arbitration clause by its express terms applied only to claims that
could be determined solely in accordance with the terms of the operating agreement and (2) the
separation agreement did not modify, expand, or incorporate by reference the operating agreement
or its arbitration provision.
¶ 55 Cates cross-appeals, arguing that the trial court erred by finding any of the claims
were not arbitrable because (1) the parties entered into a valid agreement to arbitrate any
controversies arising out of or relating to the operating agreement and (2) the parties incorporated
the arbitration provision into the separation agreement.
¶ 56 We agree with Mahoney that none of his claims were subject to arbitration and,
accordingly, affirm in part and reverse in part the judgment of the trial court.
¶ 57 A. The Applicable Law
¶ 58 “A motion to compel arbitration is essentially a section 2-619(a)(9) [see 735 ILCS
5/2-619(a)(9) (West 2022))] motion to dismiss or stay an action in the trial court based on an
affirmative matter, the exclusive remedy of arbitration.” [CITATION]. “The party seeking to compel
arbitration has the burden to establish that the parties have a valid agreement to arbitrate and that
the controversy falls within the scope of the arbitration provision.” [CITATION].
¶ 59 An agreement to arbitrate is a matter of contract. [CITATION]. “The parties to an agreement are bound to
arbitrate only those issues which by clear language and their intentions expressed in the language
- 13 - show they have agreed to arbitrate.” [CITATION] ¶ 29. “In the absence of an ambiguity, the intention of the
parties at the time the contract was entered into must be ascertained by the language used in the
contract itself, not by the construction placed upon it by the parties.” [CITATION] ¶ 30. “Arbitration
agreements cannot be extended by construction or implication.” [CITATION] ¶ 29.
¶ 60 Review of an order granting or denying a motion to compel arbitration, when no
evidentiary hearing was conducted, is de novo. [CITATION], ¶ 31. When ruling on a
motion to dismiss and compel arbitration pursuant to section 2-619, the court must interpret all
pleadings and supporting documents in the light most favorable to the nonmoving party. [CITATION]
¶ 61 B. This Case
¶ 62
. The Arbitration Provision in the Operating Agreement
Was Not Incorporated Into the Separation Agreement
¶ 63 Here, citing [CITATION], the trial court concluded that the arbitration
provision in the operating agreement applied to the separation agreement because “both
[agreements] concern the same subject matter, i.e., the business of operating and dissolving the
Cates Mahoney Law Firm.” The court also pointed to the language in the severability clause of the
separation agreement that stated if “a court or arbitrator” found any provision invalid, that
provision could be severed as support for the court’s conclusion that the parties contemplated
arbitration of disputes arising from the separation agreement.
¶ 64 Mahoney argues that the trial court erred by (1) applying [CITATION] and (2) reasoning
that the mention of an arbitrator in the severability clause amounts to an agreement to arbitrate the
separation agreement. Mahoney further argues that the arbitration provision in the operating
- 14 - agreement does not apply to the separation agreement because the separation agreement is a
separate contract that did not (1) incorporate the operating agreement or arbitration provision by
reference or (2) expand or modify the operating agreement.
¶ 65 Cates responds that the parties did incorporate the arbitration provision into the
separation agreement by including language in that agreement that the parties (1) agreed that the
operating agreement would “govern and control the Parties’ rights and obligations with respect to
the dissolution of the Firm” and (2) declared the operating agreement “affirmed” and in “full
force.”
¶ 66 a. Nagle Is Inapposite
¶ 67 First, we agree with Mahoney that the trial court erred by relying on [CITATION] because
[CITATION] is factually distinguishable. [CITATION] involved what is termed a “generic arbitration clause.”
[CITATION], 244 Ill. App. 3d at 925. A “generic arbitration clause” is one that “provides that all claims
‘arising out of or relating to’ the agreement shall be settled in arbitration.” Id. (citing [CITATION]).
The arbitration clause in [CITATION] was contained in an employment agreement and stated that “Any controversy or claim arising out
of, or relating to this Agreement, or the breach thereof, shall be settled by arbitration.”
¶ 68 Unlike [CITATION], the present case does not involve a generic arbitration clause.
Although the arbitration provision in the operating agreement contains the “arising out of or
[SEGMENT 4]
relating to” language addressed in [CITATION], it further states that controversies shall be determined
“solely in accordance with the terms of [the operating agreement].” The latter language has the
effect of limiting the scope of the arbitration provision to those controversies arising from or
relating to the operating agreement that can be determined solely in accordance with the terms of
the operating agreement. As we explain in greater detail (infra ¶¶ 83-92), although Mahoney’s
- 15 - claims relate to the operating agreement, they cannot be determined without considering the terms
of the separation agreement, as well.
¶ 69 Because [CITATION] involved a generic arbitration clause while the present case involved
an arbitration clause with express limiting language, [CITATION] is inapposite. (Additionally, we note
that the [CITATION] court did not hold that the arbitration clause in the employment agreement also
applied to the subsequent stock redemption agreement between the parties, instead reserving that
question for an arbitrator because the record was unclear. [CITATION].)
¶ 70 b. The Language of the Separation Agreement
¶ 71 Because “[t]he parties to an agreement are bound to arbitrate only those issues
which by clear language and their intentions expressed in the language show they have agreed to
arbitrate,” our determination of whether the separation agreement incorporates the arbitration
provision in the operating agreement turns on the language of the separation agreement, which we
interpret using ordinary contract principles. [CITATION]. “[A] contract must be
construed as a whole, viewing each provision in light of the other provisions.” [CITATION]. “The parties’ intent is not determined by
viewing a clause or provision in isolation, or in looking at detached portions of the contract.”
[CITATION].
¶ 72 The relevant provisions of the separation agreement read as follows:
“WHEREAS, this Agreement does not modify or amend any Article or
Section of the Operating Agreement of the Firm other than where specifically
indicated herein, and unless indicated otherwise, the Operating Agreement shall
govern and control the Parties’ rights and obligations with respect to dissolution of
the Firm.
- 16 - ***
. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Illinois.
***
. Survival of Operating Agreement. As to any conflicts between the terms of this
Agreement and the Operating Agreement, the terms of this Agreement shall prevail.
Except as herein specifically amended, the Operating Agreement for the Firm is
affirmed and declared in full force.”
¶ 73 In support of Cates’s argument that the separation agreement incorporates the
operating agreement, including its arbitration provision, he points to the language in the separation
agreement (1) providing that the operating agreement would “govern and control the Parties’ rights
and obligations with respect to dissolution of the Firm” and (2) declaring the operating agreement
“affirmed” and “in full force.”
¶ 74 Mahoney, on the other hand, contends that the absence of language
(1) incorporating the arbitration provision or operating agreement by reference or (2) modifying
or expanding the scope of the arbitration provision to apply to the separation agreement
undermines Cate’s contention that the arbitration provision applied to the separation agreement.
¶ 75 Reading the relevant provisions as a whole, Cates has not demonstrated that the
parties incorporated the operating agreement or its arbitration provision into the separation
agreement. To the contrary, when read as a whole, the above provisions demonstrate that the
operating agreement and separation agreement are two distinct agreements. Specifically, the
separation agreement states that it (1) does not modify or amend the operating agreement and
(2) controls in the event of any conflict. These statements are a clear indication that the separation
- 17 - agreement is a separate contract. If the separation agreement was not its own distinct contract, it
would not need to (1) declare that the operating agreement remains in effect or (2) repeat the same
choice of law provision contained in the operating agreement. See [CITATION] (“Contractual terms should be
construed so as to avoid the conclusion that other terms are redundant.”).
¶ 76 Equally important to our analysis is what the separation agreement does not state.
The separation agreement does not include its own arbitration provision. Instead, the parties
included a choice of law provision stating that the separation agreement would be governed by the
laws of the State of Illinois. And the separation agreement does not state that it incorporates the
operating agreement or its arbitration provision by reference. Had the parties intended to arbitrate
disputes arising from or relating to the separation agreement, they could have easily included an
express arbitration provision or express incorporation by reference of the operating agreement or
its arbitration provision.
¶ 77 It is well established that “[a]rbitration agreements cannot be extended by
construction or implication.” [CITATION], ¶ 29. As Mahoney argued before the trial
court, “Everybody in this building [(the courthouse)] knows how to incorporate something by
reference.” We wholeheartedly agree and emphasize the point. The absence of an express
incorporation provision in a contract executed by two experienced attorneys is significant, and we
decline to infer an incorporation by reference where none exists.
¶ 78 For the same reason, we conclude that the trial court erred by ruling that the mention
of a “court or arbitrator” in the severability clause constitutes an agreement to arbitrate. The court’s
reasoning serves as a prime example of what Illinois law prohibits—extending an arbitration clause
by construction or implication. [CITATION], ¶ 29. The mention of an arbitrator in the
- 18 - severability clause falls far short of constituting an express agreement to arbitrate. We agree with
Mahoney that the reference to an arbitrator simply acknowledges the possibility that the parties, in
the future, might agree, independent of any contractual obligation, to arbitrate a dispute arising
under the separation agreement.
¶ 79 We also agree with Mahoney that the separation agreement does not modify the
operating agreement to expand the scope of its arbitration provision to cover disputes relating to
the separation agreement. Indeed, the separation agreement explicitly states that it does not modify
or amend the operating agreement at all except where expressly stated. The separation agreement
did not state anything about arbitration, much less expressly modify the arbitration provision in
the operating agreement. This shows an intent to not expand the scope of the arbitration agreement
to apply to the separation agreement.
¶ 80 As we have discussed, the express language of the arbitration provision limits its
scope to those controversies that can be determined solely in accordance with the terms of the
operating agreement. Because that limitation was not modified or expanded to include
controversies that can be determined in accordance with the terms of both the operating agreement
and separation agreement, the arbitration provision does not apply to the separation agreement.
¶ 81 For these reasons, the trial court erred by ruling that the arbitration provision in the
operating agreement applied to the separation agreement. We conclude that the separation
agreement is a distinct agreement that does not (1) contain its own arbitration agreement or
(2) incorporate by reference or modify or amend the arbitration provision in the operating
agreement to extend to the separation agreement.
¶ 82
. Mahoney’s Claims Fall Outside the Scope of the Arbitration Provision
in the Operating Agreement
- 19 - ¶ 83 Mahoney also argues that his claims fall outside the scope of the arbitration
provision of the operating agreement because the express language of the arbitration provision
limits its application to disputes that can be determined solely in accordance with the terms of the
operating agreement. Mahoney’s claims, he contends, must be determined, at least in part, in
accordance with the separation agreement, which, as we have determined, is a separate agreement.
¶ 84 Cates argues that all of Mahoney’s claims are arbitrable because the parties agreed
to arbitrate any controversies that “arise out of or relate to” the operating agreement. Cates asserts
that, without the operating agreement, Cates would owe no fiduciary duties to Mahoney, which
duties form a necessary part of each claim.
¶ 85 Although Cates is correct that the arbitration provision is broad and applies to all
disputes that “arise out of or relate to” the operating agreement, his argument ignores the limiting
language that immediately follows the generic phrase he relies upon. That language explicitly
narrows the scope of the arbitration provision to disputes that can be determined “solely in
accordance with the terms of the operating agreement.”
¶ 86 Cates contends that the “solely in accordance with” phrase is simply a direction to
the arbitrator concerning how the arbitrator is to resolve claims. Cates’s argument is unpersuasive
because regardless of how the phrase is characterized, we must still give it effect when construing
the scope of the arbitration provision because it is express language that the parties chose to include
in their contract. We agree with Mahoney that to accept Cates’s interpretation would require this
court to ignore the contractual language directing that controversies be determined solely in
accordance with the terms of the operating agreement. See [CITATION]. (“A court
will not interpret a contract in a manner that would nullify or render provisions meaningless, or in
a way that is contrary to the plain and obvious meaning of the language used.”); see also [CITATION] (“[W]hen
interpreting a contract, we must give effect to all of the contract’s provisions if it is possible to do
so.”).
¶ 87 Here, the resolution of each of Mahoney’s claims requires application of the terms
of both the operating agreement and the settlement agreement. For example, each of Mahoney’s
[SEGMENT 5]
claims alleges that Cates concealed from him the Blue Cross settlement, depriving Mahoney of his
rightful share of the approximate $7.45 million in fees. The express purpose of the separation
agreement was for the parties to “resolve their respective fee interests in all cases of the Firm.” To
determine whether Cates acted wrongfully and what amount, if any, of the Blue Cross fees
Mahoney was entitled to, an arbitrator would have to look to both the operating agreement and the
separation agreement.
¶ 88 If applying only the terms of the operating agreement, the Blue Cross settlement
would appear to fall under section 10.07 as a case originated prior to dissolution but resolved after
dissolution. Under the terms of section 10.07, the originating member would receive 33 1/3% of
the profits and the remaining 66 2/3% would be divided on a quantum meruit basis.
¶ 89 However, whether Blue Cross was resolved before or after dissolution is a material
question in this case—one that can only be determined by applying the definition of “resolved” in
the separation agreement. Mahoney alleged that the Blue Cross parties reached a settlement
agreement at the May 25, 2022, mediation. Yet, Cates warranted in the separation agreement that
Blue Cross was not resolved prior to dissolution, including it among his own “retained cases” listed
in Schedule A.
¶ 90 Pursuant to the separation agreement, Mahoney would receive (1) 1/3 of the profits
of Schedule A cases if he was the originating member, but waive his claim to any costs, or (2) “in
- 21 - lieu of the requirements of Section 10.07 of the Operating Agreement,” none of the profits of
Schedule A cases if the case was a “firm case” as defined in the operating agreement (as any case
where the originating member could not be discerned or that was obtained through the joint efforts
of the members). As to those Schedule A firm cases, the parties agreed that they had “reviewed
the estimated values” of those cases and waived any right they might have to a fee or costs. In
either case—whether a Mahoney-originated case or a firm case—under the separation agreement,
Mahoney waived his right to quantum meruit.
¶ 91 As the foregoing demonstrates, an arbitrator would have to apply the terms of both
the operating agreement and separation agreement to determine whether and in what amount
Mahoney was damaged. If the arbitrator applied only the terms of the operating agreement, his or
her damages calculation would be wrong.
¶ 92 We note in particular that the trial court found that counts I (breach of fiduciary
duty) and count V (breach of contract) were arbitrable because they “related to” subparagraphs
8(a), (c), (e), and (g) of the complaint—namely, Mahoney’s allegations that Cates (1) concealed
from Mahoney and omitted or removed from [CITATION] files any reference to the mediation
and settlement of Blue Cross, (2) substituted Cates Law as counsel in Blue Cross without
Mahoney’s knowledge, (3) appropriated for himself the $7.5 million fee from Blue Cross, and
(4) appropriated for himself and Cates Law the entirety of the $2 million fee and expense award
in Macia. The trial court is correct that these counts “relate to” those subparagraphs, but as we
have explained that is not where the analysis ends because whether Mahoney was damaged and
the extent to which he was damaged requires consideration of the terms of the separation
agreement as well as the operating agreement. Moreover, count V explicitly alleges breach of the
separation agreement. It would be impossible for an arbitrator to determine whether that agreement
- 22 - has been breached without considering its terms.
¶ 93 In closing, we reiterate that Cates, as the party seeking to compel arbitration, bears
the burden of demonstrating that (1) the parties entered into a valid agreement to arbitrate and
(2) the claims at issue fall within the scope of that agreement. [CITATION],
¶ 22. Moreover, we construe the pleadings and supporting documents in the light most favorable
to Mahoney as the nonmoving party. [CITATION]. Applying these principles, because
Cates’s arguments require us to (1) infer an agreement to arbitrate where none was expressly stated
or (2) ignore express contractual language, Cates has failed to meet his burden.
¶ 94 For these reasons, we conclude that the trial court erred by determining that counts
I and V fell within the scope of the arbitration provision of the operating agreement, and we reverse
the court’s judgment as to those counts. We affirm the court’s finding that counts II, III, and IV
fell outside the scope of the arbitration agreement, albeit for different reasons explained herein,
and we affirm the court’s judgment as to those counts.
¶ 95 Although we have disagreed in part with the trial court’s legal conclusion, we wish
to thank the court for its thoughtful and detailed written order that (1) thoroughly and succinctly
explained the background of this complicated dispute and (2) set forth in clear detail the court’s
analysis.
¶ 96 III. CONCLUSION
¶ 97 For the reasons stated, we conclude that none of Mahoney’s claims were subject to
arbitration. Accordingly, we (1) reverse the trial court’s judgment with respect to counts I and V
and (2) affirm the court’s judgment with respect to counts II, III, and IV.
¶ 98 Affirmed in part and reversed in part.
- 23 - ===== Part of a Court Ruling ======
===== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'clanton-v-oakbrook-healthcare-centre-ltd', which should be replaced with `[CITATION]`.
NOTICE [CITATION]
This Order was filed under
FILED
NO. 4-23-0703 July 29, 2024
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the
IN THE APPELLATE COURT
th District Appellate
limited circumstances allowed
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
LORI L. QUIGG, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Morgan County
MOHAMMED SALEEM, REBECCA L. STOCKER, ) No. 22LA13
and QUIGG ENGINEERING, INC., an Illinois )
Corporation, )
Defendants ) Honorable
) John M. Madonia,
(Mohammed Saleem, Defendant-Appellant). ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Justices Lannerd and DeArmond concurred in the judgment.
ORDER
¶ 1 Held: The appellate court (1) affirmed the trial court’s entry of summary judgment in
plaintiff’s favor on the issues of (a) whether defendant purchaser had defaulted
under the terms of the sale documents and (b) plaintiff’s ability to control and
operate the company that was the subject of the sale but (2) reversed the entry of
summary judgment in favor of plaintiff on the issue of her acceptance and
ownership of the collateral stock in the company in satisfaction of the debt. The
appellate court vacated all other findings of the trial court and remanded for
further proceedings.
¶2 This complicated case involves deciding who is in control of an engineering
company that was sold using the stock in that company as pledged collateral. The trial court
determined that the purchaser defaulted on certain payment obligations and that the terms of the
sale documents revested the seller with complete ownership of the shares in her possession, which
she held as collateral for the sale. We affirm the trial court’s finding of default and its placing the
seller in control of the company under the terms of the sale documents. However, we reverse the court’s finding that the seller was automatically vested with ownership of the collateral stock
because we conclude that article 9 of the Illinois Uniform Commercial Code (UCC) (810 ILCS
5/9-101 et seq. (West 2018)) explicitly forbids parties from contracting for such a remedy, which
does not comply with the mandatory provisions for such relief under the UCC. Accordingly, we
vacate the remaining findings and judgments of the trial court and remand for further proceedings
consistent with this order.
¶3 I. BACKGROUND
¶4 A. Summary of the Events on Which This Case Is Based
¶5 In January 2019, plaintiff-appellee, Lori Quigg, and defendant-appellee, Rebecca
L. Stocker, entered into a stock sale agreement with defendant-appellant, Mohammed Saleem, to
purchase Quigg Engineering, Inc. (QEI), for approximately $8 million. The parties agreed to use
the shares of stock in QEI as collateral to finance Saleem’s purchase. Quigg and Stocker issued
new stock certificates in Saleem’s name for all 1000 existing shares of QEI stock, and pursuant to
the terms of two share pledge agreements, Saleem pledged and physically gave back 900 shares to
[SEGMENT 6]
Quigg and 100 shares to Stocker, which represented their respective percentage of ownership of
QEI at the time of the sale. Saleem also executed promissory notes in favor of Quigg and Stocker
for their portions of the purchase price.
¶6 The sale documents—consisting of (1) the stock sale agreement, (2) a promissory
note to Quigg, (3) a promissory note to Stocker, (4) a pledge agreement to Quigg, and (5) a pledge
agreement to Stocker—contained cross-default provisions, meaning that a default on any one of
the five individual sale documents also constituted a default on the remaining four. Section 2(A)
of the notes required Saleem to make regular monthly payments (section 2(A) payments), and
section 2(B) of the notes required biannual “mandatory prepayments,” due January 1 and July 1 of
each year, that were calculated based on the net profits of QEI for the six-month period before
each mandatory prepayment (section 2(B) payments). If Saleem defaulted under the terms of the
sale documents, the pledge agreements authorized Quigg and Stocker, at their election, to
(1) declare all amounts under the notes immediately due in full and (2) vest in themselves all of
Saleem’s rights in the pledged stock in their possession. Unless and until an event of default,
however, the pledge agreements gave Saleem the right to vote the shares of stock and receive any
and all cash dividends.
¶7 In short, on January 1, 2019, Saleem became the sole owner of 100% of the shares
in QEI and retained all shareholder rights, but Quigg and Stocker held physical possession of the
stock and could immediately exercise all shareholder rights in the event of Saleem’s default. Even
after Saleem purchased the company and became its chief executive officer (CEO), Quigg and
Stocker continued in their employment with QEI, Quigg as “president” and Stocker as “vice
president.” Saleem made all of his required section 2(A) payments, and in December 2020 and
2021, Saleem made section 2(B) payments of $200,000.
¶8 In June 2022, Saleem and Quigg received a notice from QEI’s lender, Bank of
Springfield, that Saleem had taken distributions from QEI that were several hundred thousand
dollars above the amounts Bank of Springfield had authorized for QEI’s operation, Saleem’s tax
liability, and the stock purchase payments made that year. Shortly thereafter, Quigg sent Saleem a
notice of default, asserting that the unauthorized distributions constituted a default under the sale
documents because those distributions (1) caused QEI to lose its operational line of credit from
Bank of Springfield and (2) demonstrated that Saleem failed to make adequate section 2(B)
payments in previous years. The parties and their attorneys attempted to resolve the payment and
line of credit issues, but tempers flared and QEI quickly ran out of cash, jeopardizing its ability to
make payroll and perform on its government contracts.
¶9 On August 1, 2022, Quigg and Stocker held a meeting at which they declared
themselves the owners of the pledged stock and elected themselves as the sole officers of QEI.
¶ 10 B. The Complaint and Preliminary Proceedings
¶ 11 On August 1, 2022, Quigg filed a declaratory judgment action, seeking a
declaration that Saleem was in default under the terms of the sale documents and Quigg was
entitled to immediate ownership and control of QEI. Quigg asserted two grounds for Saleem’s
default.
¶ 12 First, Quigg alleged Saleem defaulted on the Bank of Springfield line of credit by
taking unauthorized distributions from QEI as cash dividends that he used for purposes unrelated
to QEI’s operations or his purchase of QEI’s shares (the line of credit default). Second, Quigg
alleged Saleem breached his obligations under section 2(B) of the note by (1) making inadequate
mandatory net profit prepayments and (2) failing to provide the required financial documentation
from QEI’s accountant to support his net profit calculations (the section 2(B) default). Based on
these two defaults, Quigg alleged that section 8 of the pledge agreement explicitly authorized her
to declare all amounts due and immediately vest all of Saleem’s rights relating to the collateral
stock in herself.
¶ 13 Shortly after she filed the complaint, Quigg sought an emergency temporary
restraining order (TRO) preventing Saleem from making any changes to QEI’s operations,
policies, or procedures as they existed prior to August 1, 2022. The trial court granted the TRO
without notice to Saleem. Once notified, Saleem sought to dissolve the TRO based on, among
other things, improper lack of notice. The trial court denied the motion to dissolve, Saleem
appealed, and this court reversed. [CITATION], ¶¶ 15-16, 215
N.E.3d 329.
¶ 14 Later in August, Saleem filed his answer, affirmative defenses, and counterclaims.
Saleem denied any default and asserted the defenses of (1) lack of notice of default and opportunity
to cure, (2) waiver of Quigg’s right to contest the adequacy of the section 2(B) payments by failing
to object to his December 2020 and 2021 payments within 30 days (as set forth in section 2(B) of
the note), and (3) failure to comply with section 9-620 of the UCC ([CITATION]), which governs the procedure for accepting collateral in satisfaction of a debt. Count I of
Saleem’s counterclaim alleged breach of contract based on Quigg’s failure to negotiate or execute
a subordination agreement with Signature Bank, preventing QEI from obtaining a new line of
credit. Count II sought declaratory relief and damages based on Quigg’s failure to comply with
article 9 of the UCC, specifically section 9-620. Count III sought damages for Quigg’s interference
with QEI’s operations by wrongfully asserting ownership over the company and interfering with
QEI’s vendors and clients by telling them that she was the owner and attempting to prevent Saleem
from accessing QEI’s software and e-mails.
¶ 15 C. The Preliminary Injunction Evidentiary Hearing
¶ 16 Also in August 2022, Saleem filed a motion for a preliminary injunction to
(1) maintain the status quo of Saleem’s full ownership and control of QEI, (2) restrain Quigg and
Stocker from interfering with QEI’s operations, and (3) require Quigg to negotiate and enter into
a subordination agreement to give QEI access to a new line of credit. We note that, after receiving
this court’s ruling reversing the TRO, Quigg voluntarily withdrew her own petition for a
preliminary injunction.
¶ 17 The trial court conducted an evidentiary hearing on Saleem’s motion for
preliminary injunctive relief over four days in October and November 2022. The majority of the
testimony and evidence presented at that hearing addressed (1) the section 2(B) default—namely,
Saleem’s failure to comply with section 2(B) payments—and (2) Saleem’s counterclaims based
on Quigg’s (a) failure to sign the subordination agreement with Signature Bank and (b) tortious
interference with QEI’s business operations. As we earlier explained, we do not discuss these
issues because we affirm the trial court’s subsequent entry of summary judgment on the issue of
Saleem’s default on alternate grounds.
¶ 18 Relevant to this appeal, the parties presented the following evidence at the hearing
on Saleem’s request for a preliminary injunction: (1) the June 16, 2022, notice of default from
Quigg to Saleem; (2) testimony from Mike Halsne, an executive on the Bank of Springfield loan
committee who handled QEI’s accounts, regarding the terms of the Bank of Springfield line of
credit and Saleem’s unauthorized distributions; (3) testimony from Saleem and his wife, Samina,
regarding those distributions; and (4) testimony from Quigg, Stocker, and Saleem regarding the
Signature Bank subordination agreement and line of credit.
¶ 19 On January 3, 2023, the trial court entered a written order denying Saleem’s request
for injunctive relief. In that order, the court, in an effort to assist the parties and streamline
resolution of the dispute, expressed its views on the merits of Saleem’s affirmative defenses,
particularly the issues of notice of default and waiver.
¶ 20 D. Quigg’s Motion for Summary Judgment
¶ 21 In November 2022, before the trial court denied Saleem’s request for injunctive
relief, Quigg filed a motion for partial summary judgment on the issue of Saleem’s default.
Although Quigg’s motion was based on (1) the line of credit default and (2) the section 2(B)
default, a majority of her arguments addressed the section 2(B) default. Saleem filed a response in
which he argued summary judgment was inappropriate because the parties had not had time to
fully conduct discovery. Saleem acknowledged that the parties had conducted significant
discovery on an expedited basis, but he contended that such discovery was narrowly focused on
the preliminary injunction hearing and not the full merits of the dispute.
¶ 22 After further discovery, the parties filed supplemental briefs. These briefs were
dedicated almost entirely to (1) the section 2(B) default, (2) whether Quigg had provided adequate
[SEGMENT 7]
notice of default and an opportunity to cure, (3) Quigg’s and Stocker’s alleged waiver of their right
to challenge the sufficiency of Saleem’s December 2020 and 2021 section 2(B) payments, and
(4) the failure to comply with section 9-620 of the UCC.
¶ 23 Saleem argued that pursuant to section 9-620 of article 9 of the UCC, Quigg and
Stocker could not unilaterally take ownership of the collateral stock without obtaining Saleem’s
consent after default. Saleem further argued that even if Quigg gained ownership of the stock, she
could only recover up to the amount of the outstanding debt. In other words, Saleem asserted that
he was entitled to the equity he had put into the company through (1) all of the payments he had
made under the terms of the sale documents; (2) the merger of his own engineering company with
QEI, as expressly contemplated by the terms of the stock sale agreement; and (3) the increase in
value and profitability of QEI under his leadership. Saleem contended that, consistent with his
testimony before the court, QEI was worth $12 million based on its yearly contracts, revenue, and
accounts receivable, which was significantly more than what he paid for it and how much he owed.
¶ 24 In her reply and supplemental briefing, Quigg claimed that the parties specifically
agreed to the remedy of immediate vesting of rights in Quigg once an event of default had occurred.
Section 8 of the pledge agreement expressly said that notice of default was not required and Quigg
“may” sell the collateral in the manner provided for in article 9 of the UCC. Section 8 entitled
Saleem to the surplus of any such sale but said nothing about Saleem being entitled to anything if
Quigg exercised any other remedy available to her under the UCC or under applicable law or
equity. Quigg further explained that the note was a “nonrecourse” note, meaning that Quigg was
not permitted to seek payment from Saleem personally and instead was required to seek
satisfaction of the debt only through the collateral. As a result, it made sense that the parties
explicitly agreed to retention of the collateral in addition and as an alternative to any remedies
provided by the UCC, which explicitly permitted parties to agree to other remedies. Quigg pointed
to section 9-207(b)(4)(C) ([CITATION]), which provided that parties
in possession of collateral may use that collateral in any manner agreed to by the parties. Quigg
claimed that the retention provision of section 8 constituted such an alternative “use” of the
collateral stock agreed to by the parties and therefore was authorized by the UCC.
¶ 25 In his supplemental briefing, Saleem argued that section 9-602 (id. § 9-602)
contained a list of provisions in article 9 that could not be waived or varied by the parties, and
section 9-620 was included on that list. Therefore, to the extent section 8 of the pledge agreement
stated to the contrary, such language was unenforceable.
¶ 26 E. The Trial Court’s Summary Judgment Ruling
¶ 27 The trial court agreed with Quigg. In its written order entered in May 2023, the
court determined that even though it did not believe notice was required based on the language of
the sale documents, the June 16, 2022, notice from Quigg complied with the notice provisions
relied on by Saleem. The court rejected Saleem’s arguments regarding how to calculate the
amounts he owed under section 2(B) of the notes.
¶ 28 Regarding Saleem’s defense of waiver, the trial court found that section 2(B)
required Quigg and Stocker to object to the net profit calculation within 30 days; however, the
court explained that Saleem failed to provide the required financial documentation, consisting of
QEI’s balance sheets and profit and loss statements, so that Quigg and Stocker could determine if
the amounts of his section 2(B) payments were correct. The court disagreed with Saleem that
Quigg and Stocker had actual notice of the financial condition of the company based on their
positions in the company and rejected his assertion that, because they were copied on dozens of e-
mails over the years with financial records attached, Saleem could be said to have substantially
complied with the requirement in section 2(B) of the notes that he provide QEI’s balance sheets
and profit and loss statements along with his section 2(B) payments. The court concluded that the
failure to provide the required financial documents was itself a material breach.
¶ 29 Regarding the immediate revesting of rights in the collateral and the various
sections of article 9 of the UCC, the trial court determined that the express language of section 8
of the pledge agreements was clear and unambiguous: Quigg and Stocker were entitled to
immediate vesting upon an event of default. The court disagreed strongly that Saleem “waived”
any rights under section 9-620 because section 8 of the pledge agreement authorized Quigg and
Stocker to proceed under that section or any other section of article 9 if they so chose. Instead, the
parties had contracted for an alternative, which the court deemed appropriate given the
nonrecourse nature of the note. According to the court, Quigg and Stocker selected a remedy,
Saleem did not waive one, and nothing in that alternative remedy ran afoul of article 9.
¶ 30 The trial court concluded that Quigg and Stocker were entitled to take ownership
of the stock upon Saleem’s default, which they did on August 1, 2022. Accordingly, the court
ordered that Quigg and Stocker were the rightful owners of QEI and entitled to immediate control
over the company.
¶ 31 F. The Postjudgment Motions
¶ 32 Following the entry of summary judgment, Stocker filed a motion to clarify that,
because she (1) stood in the same position as [CITATION] and (2) had filed her own motion for summary
judgment in January 2023 adopting all of [CITATION]’s arguments, the trial court’s entry of summary
judgment applied fully to her as well as [CITATION] filed several motions seeking clarification, reconsideration, leave to amend
his counterclaims, and judgment on the pleadings. [CITATION]’s motion for judgment on the pleadings
argued that [CITATION]’s declaratory judgment complaint was improper because it sought a finding of
nonliability based on past action, better known as a breach of contract claim, which Illinois courts
had long held cannot be addressed under the declaratory judgment statute because such actions
were meant to declare existing rights governing the relationship between parties before they acted.
¶ 34 [CITATION] also argued extensively that the trial court improperly sua sponte dismissed
his counterclaims based on a preliminary record. He sought leave to amend those claims to provide
more detail and explain why those claims had not been resolved.
¶ 35 [CITATION] further claimed the trial court erred by entering summary judgment based
on a preliminary record and by applying the wrong standard. [CITATION] again asserted that he needed
further discovery to prove his claims. Moreover, he contended that instead of looking at the record
in the light most favorable to [CITATION] as the nonmovant to determine if genuine issues of material
fact existed, the court resolved factual disputes against him based on credibility determinations it
made after the preliminary injunction hearing. [CITATION] also pointed out that in its written order, the
court erred by ruling that [CITATION] was entitled to summary judgment in part because (1) [CITATION] had
demonstrated a substantial likelihood of success and (2) [CITATION] had failed to do so. [CITATION]
asserted that this was instead the standard for preliminary injunctions.
¶ 36 [CITATION] and [CITATION] filed responses, providing myriad arguments why the trial court
should deny [CITATION]’s requested relief. Relevant to our purposes, [CITATION] explained that the court
- 10 - was permitted to and did exercise its discretion to enter declaratory relief to resolve the dispute
between the parties—namely, who is entitled to control QEI. That was the core dispute between
the parties, which dispute was entirely appropriate for a declaratory judgment action. Had Saleem
succeeded, Quigg noted, then he would have remained the owner of QEI, and the sale documents
would have continued to govern the parties. However, the court, after considering all of the
evidence from the parties, including both live witness testimony and hundreds of documents, could
only answer the question of who was entitled to control QEI by determining whether (1) Saleem
was in breach and (2) Quigg and Stocker were entitled to ownership of the shares of stock under
the plain terms of the sale documents. Quigg pointed out that nothing was left for the trial court to
do and no purpose would be served by conducting a second hearing just to present the same
evidence the parties had already presented to the court at the preliminary injunction hearing and
as part of the summary judgment briefing.
¶ 37 In July 2023, the trial court denied all of Saleem’s motions and (1) incorporated its
January 2023 order, which denied Saleem’s preliminary injunction, and its May 2023 order, which
granted summary judgment in Quigg’s favor, into its July 2023 order and (2) explained that it had
[SEGMENT 8]
already fully considered and rejected all of Saleem’s claims, affirmative defenses, and
counterclaims based on the findings in those orders.
¶ 38 The trial court elaborated in some detail, as to each defense and counterclaim, why
the prior findings necessarily disposed of Saleem’s claims. Count III was moot because it sought
damages based on Quigg and Stocker wrongfully asserting ownership of QEI, and the court found
they were, in fact, the owners. Regarding count I, the court concluded, in its January 2023 order,
that Quigg was not required to sign the subordination agreement because it contained unreasonable
terms that were less protective than those she had under the Bank of Springfield line of credit. And
- 11 - the court reiterated at length its rejection of the application of article 9 of the UCC, emphatically
refusing to rewrite the unambiguous terms of the sale documents that the parties had negotiated
with the assistance of legal counsel.
¶ 39 The trial court denied leave to amend based in part on its rejection of the
counterclaims on their merits and in further part on the untimeliness of the request. The court
rejected the motion for judgment on the pleadings because Saleem himself had filed a claim for
declaratory relief, and the court refused to let him change his position only after he had lost.
¶ 40 This appeal followed.
¶ 41 II. ANALYSIS
¶ 42 Saleem appeals, arguing that the trial court erred by (1) resolving factual issues and
making credibility determinations on summary judgment, (2) ruling Saleem failed to raise any
genuine issues of material fact as to his default and affirmative defenses, (3) dismissing,
sua sponte, his counterclaims, and (4) finding that Quigg and Stocker were entitled to immediately
retain the pledged shares in full satisfaction of the debt.
¶ 43 We affirm in part, vacate in part, and remand for further proceedings consistent
with this order. Specifically, we conclude, albeit on different grounds, that the trial court’s entry
of summary judgment was proper as to (1) finding Saleem in default and (2) awarding Quigg and
Stocker control of QEI. However, we agree with Saleem that the court erred by (1) declaring Quigg
and Stocker the owners of the pledged shares and (2) dismissing Saleem’s counterclaim based on
article 9 of the UCC (810 ILCS 5/9-101 et seq. (West 2018)). We vacate all findings of the trial
court other than those we have affirmed and remand for further proceedings consistent with this
order.
¶ 44 A. The Applicable Law and Standard of Review
- 12 - ¶ 45 This case comes before us on the trial court’s entry of summary judgment based on
the terms of the sale documents and interpretation of article 9 of the UCC.
¶ 46 Summary judgment is appropriate when, viewing the evidence in the light most
favorable to the nonmoving party, no genuine issue of material fact exists and the moving party’s
right to judgment as a matter of law is clear and free from doubt. [CITATION]. When examining whether a genuine issue of material fact exists, a
court construes the evidence in the light most favorable to the nonmoving party and strictly against
the moving party. [CITATION]. “The purpose
of summary judgment is not to try a question of fact, but to determine whether one exists.” [CITATION]. A trial court’s entry of summary judgment is reviewed
de novo. [CITATION].
¶ 47 The rules governing the interpretation of statutes and the interpretation of contracts
are well settled. When interpreting the meaning of a statute or contract, the fundamental rule is to
ascertain and give effect to the legislature’s or parties’ intent, and the best indicator of that intent
is the statutory or contractual language of the relevant provisions, given its plain and ordinary
meaning. [CITATION] (discussing statutory interpretation); [CITATION] (discussing contract interpretation). A statute, like a contract,
should be evaluated as a whole, and each provision must be construed in connection with every
other relevant section. [CITATION]. Issues of
statutory construction and contract interpretation raise questions of law that an appellate court
reviews de novo. [CITATION].
¶ 48 Quigg asserts that because the trial court entered summary judgment in her favor
- 13 - on her declaratory judgment action, the standard of review for this court on appeal is whether the
trial court abused its discretion. We reject this contention based on the well-reasoned opinion of
the Second District in [CITATION], in which the Second District concluded that de novo review was the appropriate
standard of review of a trial court’s entry of summary judgment in a declaratory judgment action.
¶ 49 B. Entry of Summary Judgment on Saleem’s Default
¶ 50
. Whether the Trial Court Properly Applied the
Summary Judgment Standards on the Issue of Saleem’s Payment Default
¶ 51 The trial court entered summary judgment based on Saleem’s failure to make
accurate biannual net profit payments pursuant to section 2(B) of the note (the section 2(B)
default). The parties dedicate much of their briefs to this issue and the issues related to it (for
example, the accounting method the parties should use to properly calculate the amounts owed).
Saleem argues that the court erred when it decided these issues in Quigg’s favor by (1) making
factual findings and credibility determinations on contested evidence from a preliminary injunction
hearing, (2) failing to look at the evidence in the light most favorable to him as the nonmovant,
and (3) applying, at times, the standard for preliminary injunctions rather than motions for
summary judgment.
¶ 52 Based on our review of the record, we conclude that the trial court did not strictly
follow the standards for evaluating whether the entry of summary judgment is appropriate. For
instance, the court incorporated and relied on its January 3, 2023, order denying Saleem’s motion
for a preliminary injunction when it granted Quigg’s motion for summary judgment and then
further explained those rulings when denying Saleem’s postjudgment motions. In that January 3
order, the court also addressed and rejected the merits of some of Saleem’s claims, even though
- 14 - the only question it should have determined was whether Saleem had established the four elements
required for injunctive relief. See [CITATION].
¶ 53 Saleem had no obligation to prove his case at a preliminary injunction hearing. [CITATION].
¶ 54 We are especially concerned about the trial court’s statements because of the
arguments to the court made by Quigg, as set forth in the background portion of this order, that
appear to have led that court astray. For example, Quigg explicitly and repeatedly told the court,
both in her arguments for summary judgment and in response to Saleem’s motion to reconsider,
that it had already disposed of Saleem’s arguments and defenses when the court denied his request
for injunctive relief. Quigg further argued to the trial court that it could decide these issues because
the parties had extensively briefed them and presented four days of live testimony and evidence to
the court. Quigg stated that no purpose would be served by conducting a trial on the merits just so
the parties could present the same evidence and testimony for the court to decide the same
questions. Indeed, at oral arguments before this court, Quigg made essentially the same arguments
and even conceded that trial courts sometimes address the ultimate merits of the parties’ claims at
a preliminary injunction hearing. Quigg suggested that this court should affirm the entry of
summary judgment because (1) the trial court expressly asked the parties to present significant
evidence in support of their claims and (2) Saleem was able to fully litigate his counterclaims at
the preliminary injunction hearing. Quigg’s assertions are simply incorrect. See [CITATION].
- 15 - Nowobilski, [CITATION], ¶ 45 (“Illinois law is clear that it is ‘serious procedural
error’ to treat a hearing on a motion for preliminary injunction as a ‘full scale hearing on the merits
and permanently dispose[ ] of all pending matters.’ ” (quoting [CITATION])).
¶ 55 Even if Quigg’s suggestion that the parties would present the exact same evidence
at trial had some truth to it, summary judgment is not a substitute for trial. Summary judgment
requires the trial court to strictly construe the evidence in favor of the nonmovant and against the
movant. [CITATION], ¶ 22. Trials, by contrast, serve the crucial purpose of
presenting live testimony after the parties have adequately conducted discovery precisely so the
fact finder, here the trial court, can evaluate the evidence as it sees fit without deference to one
side or the other.
¶ 56 We note that Quigg did present and argue the correct standard for summary
judgment both in her written motions and oral arguments. However, the trial court was apparently
persuaded by her assertions that we have highlighted because it used very similar language in its
orders, which, when read as a whole, indicate strong agreement with Quigg’s arguments. Although
the bulk of Quigg’s arguments relied on the proper standards, her statements encouraging the trial
court to bend the rules, which at first blush have intuitive appeal, have tainted the record, by which
we mean those statements and the trial court’s reliance on them makes it very difficult to conclude
Saleem was not prejudiced by the court’s apparent errors.
[SEGMENT 9]
¶ 57 Put another way, even with de novo review, it appears that the trial court,
encouraged in part by Quigg, conclusively decided issues based on preliminary evidence from
Saleem who, quite correctly, proceeded under the impression that the court (1) would not
transform Saleem’s failure to succeed at the preliminary injunction hearing into a final
- 16 - determination that Saleem’s claims failed on their merits and (2) would properly consider that
evidence anew, in the light most favorable to Saleem at summary judgment and without
prejudgment.
¶ 58 We recognize that our standard of review is de novo, meaning we conduct the same
analysis as the trial court, without any deference to its findings of fact or conclusions of law.
However, after thoroughly reviewing the record and the arguments of the parties, both in the trial
court and before this court, we are unable to conclude that Quigg’s right to judgment as a matter
of law is “clear and free from doubt.” Given this context, we conclude that vacating the trial court’s
findings on these and all other issues we do not affirm is the most appropriate course of action.
¶ 59
. Saleem’s Line of Credit Default Is an Alternative Ground To Affirm
¶ 60 Although we vacate the trial court’s findings regarding Saleem’s section 2(B)
default and accompanying defenses, we may affirm based on any grounds apparent in the record.
On that basis, we conclude that no genuine issue of material fact exists as to Saleem’s line of credit
default with Bank of Springfield and affirm the court’s grant of summary judgment.
¶ 61 To begin, we recognize that regarding the issue of whether Saleem had defaulted
under the sale documents, the parties spent the majority of their arguments before the trial court,
and all of them to this court, addressing the section 2(B) default. Nonetheless, Quigg’s verified
complaint spends an equal amount of time addressing the line of credit default as it does the section
2(B) default. And in her motion for partial summary judgment on the issue of Saleem’s default,
Quigg clearly raised the line of credit default as one basis on which no material factual issues
existed and she was entitled to judgment as a matter of law.
¶ 62 Saleem’s response to that motion did not address this ground and was relatively
short due to his need for further discovery. Each of the parties underwent a discovery deposition
- 17 - and testified at the evidentiary hearing, and they testified about the line of credit default. Further,
the parties conducted an evidence deposition of Mike Halsne, the loan committee member in
charge of QEI’s line of credit loan, and submitted it to the trial court as part of the evidentiary
hearing.
¶ 63 Accordingly, Saleem (1) was aware Quigg asserted the line of credit default as an
independent ground for Saleem’s default under the sale documents; (2) conducted adequate
discovery on the issue; and (3) as we explain below, (a) offered nothing more than a conclusory
denial of the line of credit default and (b) admitted, along with his wife, Samina, to using the
unauthorized disbursements for personal reasons and never attempting to return them. Saleem
cannot claim any prejudice. Indeed, at oral arguments, Saleem conceded that, other than his
conclusory testimony at the preliminary injunction hearing, nothing in the record contradicted that
he was in default under the terms of the Bank of Springfield line of credit.
¶ 64 C. Saleem’s Default on the Bank of Springfield Line of Credit
¶ 65 Quigg filed two motions for partial summary judgment, seeking determinations that
(1) Saleem was in default under the terms of the sale documents for (a) failing to make sufficient
mandatory prepayments under section 2(B) of the note and (b) defaulting on the Bank of
Springfield line of credit and (2) those sale documents did not require her to sign the subordination
agreement with Signature Bank, which had issued a commitment to extend a line of credit to QEI.
Saleem responded by asserting that genuine issues of material fact existed regarding, in relevant
part, Quigg’s failure to (1) give Saleem a notice of default that complied with the requirements of
the sale documents and (2) execute the subordination agreement with Signature Bank, which
contained reasonable terms and conditions as demonstrated by Stocker’s signing the same
agreement. The trial court granted Quigg’s motions for summary judgment, finding that Quigg
- 18 - provided adequate notice of default, even though notice was not required under the circumstances,
and Quigg was not required to sign the subordination agreement because its terms were (1) much
less protective than what Quigg had under [CITATION]'s line of credit and therefore
(2) unreasonable as a matter of law.
¶ 66 We conclude that the sale documents explicitly stated that a default on the senior
indebtedness, i.e., the [CITATION] line of credit, constituted a default under the terms of
the pledge agreement and therefore a cross-default under the other sale documents. No genuine
issue of material fact exists that Saleem took several hundred thousand dollars of unauthorized
distributions in the form of cash stock dividends, which were unauthorized under the terms of the
[CITATION] line of credit because he used those funds for purposes other than operating
QEI, making payments on the stock purchase, or for income taxes.
¶ 67 We note that the plain language of the sale documents required Quigg and Stocker
to give Saleem written notice of default, regardless of the type of default alleged, setting forth
(1) the breach, (2) how to cure it, (3) the deadline to cure it, and (4) that failure to cure it would
result in Quigg’s exercising her rights and remedies under the sale documents. On June 16, 2022,
with regard to Saleem’s default on the [CITATION] line of credit, Quigg complied with
these requirements and properly gave Saleem a written notice of default that contained the
information required by section 9 of the pledge agreements and section 10 of the notes.
¶ 68 Saleem failed to cure the default in that he never returned the excessive
disbursements to QEI and did not establish a new line of credit for QEI through another lender.
Because Saleem failed to provide Quigg with the subordination agreement Signature Bank
required for the new line of credit until after the expiration of the cure period, Quigg’s failure to
sign the subordination agreement or negotiate reasonable terms for the same with Signature Bank
- 19 - did not excuse Saleem’s default.
¶ 69 We affirm the trial court’s entry of summary judgment on the existence of Saleem’s
default, and we vacate all factual findings and conclusions of law made by the trial court other
than those explicitly affirmed in this order. We express no opinion on the ultimate merits of the
issues or the correctness of the trial court’s findings and make clear that all matters not affirmed
may be addressed on remand, including through further summary judgment proceedings.
¶ 70
. Saleem’s Unauthorized Distributions Constituted a Default
Under the Sale Documents
¶ 71 a. The Pledge Agreement Expressly Provided That a Default
on the Line of Credit Constituted an Event of Default
Under the Pledge Agreements
¶ 72 First, the terms of the sale documents, specifically the pledge agreements, explicitly
provided that a default on the Bank of Springfield line of credit, identified as the “Senior
Indebtedness” in the sale documents, also constituted an event of default. The Quigg and Stocker
notes, in section 4, both expressly incorporate by reference the respective pledge agreements.
Section 14 of the pledge agreements provides that “[a] default under this Agreement or the Senior
Indebtedness shall constitute a default under” (emphasis added) the notes to Quigg and Stocker
and the stock sale agreement. The terms of the Bank of Springfield line of credit expressly
prohibited QEI from paying cash dividends on stock to its shareholders unless (1) Bank of
Springfield approved the disbursement in writing or (2) such dividend disbursement was made for
the purpose of paying incomes taxes incurred as a result of ownership of QEI’s stock. Relatedly,
the line of credit permitted the use of loan proceeds solely for QEI’s business operations unless
otherwise approved in writing. (We note that (1) the parties agreed before the trial court that stock
- 20 - purchase payments to Quigg and Stocker were authorized by Bank of Springfield and (2) Halsne
confirmed the same.)
¶ 73 b. Saleem’s Actions Violated the Terms of the Agreement
¶ 74 Second, even strictly construed in favor of Saleem, the undisputed evidence in the
record demonstrates that Saleem took unauthorized disbursements from QEI and the Bank of
Springfield line of credit that were not used for business operations, payment of Saleem’s income
tax liabilities based on his ownership of QEI’s stock, or to cover stock buyout payments to Quigg
and Stocker. Halsne testified about the distributions at his deposition, Stocker identified the
disbursements on QEI financial statements and reports, which were admitted into evidence, and
Samina confirmed that in 2021, she and Saleem took a $300,000 disbursement to purchase a
property in their personal capacities and not on behalf of QEI. According to Halsne at his evidence
deposition, the Bank of Springfield loan committee decided not to renew QEI’s line of credit
[SEGMENT 10]
because the disbursements had caused severe cash flow problems for QEI and Bank of Springfield
was no longer willing to loan money to QEI at all. The testimony of Halsne and others confirmed
that Bank of Springfield informed Saleem that QEI needed to find another lender.
¶ 75 Most important, Saleem’s testimony and communications with Halsne
corroborated the other evidence that he took unauthorized disbursements. Saleem acknowledged
that he e-mailed Halsne on June 13, 2022, which e-mail was admitted into evidence at the
preliminary injunction hearing, and informed him that “we took some money as a dividend” at the
beginning of 2021 and “[a] portion was used to pay taxes.” Saleem then wrote the following: “At
the end of the year I did take another $300K for which I apologize… I should have checked with
you. Before today, I didn’t realize there was a stipulation in the contract, otherwise I wouldn’t have
done it.” Saleem agreed he never returned the money, and his only explanation was that Bank of
- 21 - Springfield did not ask for the money back.
¶ 76 Although during his testimony Saleem emphatically denied he defaulted on the line
of credit, took unauthorized disbursements, or admitted any wrongdoing in his e-mail, Saleem did
not provide any evidence, other than his own testimony, to support his conclusory statements, and
the record is devoid of contrary facts that would prevent summary judgment. (We again note that
Saleem conceded at oral arguments before this court that no other evidence in the record supported
his self-serving testimony that he was not in default on the line of credit.) And, even though Saleem
testified that he set aside the $300,000 in order to purchase an office building (in his name to lease
back to QEI) to consolidate QEI’s Chicago offices, thereby significantly decreasing QEI’s
expenses, when asked where the money was and what it was being used for, Saleem admitted he
was using it to pay his litigation costs for defending against Quigg’s lawsuit.
¶ 77 Based on the foregoing, we conclude the trial court’s entry of summary judgment
on the issue of Saleem’s default was proper because no genuine issue of material fact existed that
Saleem was in default under the Bank of Springfield line of credit, and therefore the share pledge
agreements and notes.
¶ 78
. Saleem’s Defense of Failure To Provide Proper Notice of Default
¶ 79 Saleem argues that the trial court erred by finding that (1) no notice of default was
required and (2) to the extent that notice was required, the June 16, 2022, notice of default letter
provided adequate notice. Saleem argues that written notice was required under the terms of the
sale documents, specifically section 9 of the share pledge agreements. Quigg claims that notice
was not required because Saleem made a payment default and the notes and share pledge
agreements explicitly provide notice is not required for payment defaults.
¶ 80 Ultimately, we conclude that the record demonstrates no genuine issue of material
- 22 - fact exists that Saleem was in default under the terms of the Bank of Springfield line of credit and
the notice of default complied with section 9 regarding that breach.
¶ 81 a. Written Notice of Default Was Required
¶ 82 Section 9 of the share pledge agreements provides that all notices “required or
permitted to be given or made hereunder shall be given in the manner and to the place as provided
in the Purchase Agreement for notices to the party to whom such notice is given.” Section 6.12 of
the stock sale agreement provides, “All notices and other communications hereunder shall be in
writing and shall be deemed given when mailed, delivered personally, sent by email (which is
confirmed), or sent by an overnight courier service” to the parties and their lawyers at specified
addresses. Section 9 of the share pledge agreements further provides:
“Notwithstanding anything to the contrary contained herein, in the event of any
breach hereof or default hereunder, Pledgee shall provide notice to the pledgor
specifying: (a) the breach; (b) the action required to cure such breach; (c) the date
by which such breach must be cured as provided hereunder; and (d) that failure to
cure such breach on or before the date specified in the notice may result in an Event
of Default hereunder.” (Emphases added.)
(We note that section 10 of the notes contains an essentially identical “notwithstanding” clause
with slight differences in wording tailored to the acceleration provisions of the notes.)
¶ 83 Based on these provisions, which are all incorporated by reference into the share
pledge agreements and thereby into the notes, written notice of any default was required to be
given to Saleem with an opportunity to cure.
¶ 84 b. Quigg Provided Sufficient Notice of the Line of Credit Default
¶ 85 In its written order, the trial court made an alternative finding that even if notice
- 23 - was required, Quigg and Stocker gave adequate notice to Saleem by sending him a letter dated
June 16, 2022, titled “Notice of Default,” which letter was sent via overnight courier, e-mail, and
also to his attorneys designated in the stock sale agreement. That June 16 notice of default stated
that Saleem had defaulted under the provisions of the sale documents by (1) making distributions
of $1.4 million in 2020 and $1.3 million in 2021, “which are well in excess of the amounts
permitted for salary and necessary for estimated tax payments,” in violation of section 4.3 of the
stock sale agreement; (2) failing to make adequate section 2(B) mandatory prepayments in 2020
and 2021 based on those distributions compared to the total amounts Quigg and Stocker received
in payments in those years of $785,000 and $740,000, respectively; and (3) defaulting on the Bank
of Springfield line of credit, which notice of default from Bank of Springfield was attached.
¶ 86 The June 16 notice of default further provided that the defaults could be cured by
returning “all disbursements to [QEI] over and above those amounts permitted in the Sale
Agreement, and remit payment to Payee for the full amounts due to them under their respective
Promissory Notes.” The notice further demanded that supporting documentation for all payments
be provided in order to cure the default. Finally, the notice stated that if Saleem did not cure the
default as requested within 30 days (or by July 18, 2022), Quigg intended to exercise her rights
under the sale documents to (1) accelerate all amounts due under the notes; (2) charge interest at
the “Default Rate” (8.5% instead of 4.5%) from the time of the first breach, which would be
determined later; (3) invoke her rights under section 8 of the pledge agreement “to declare that all
rights of [Saleem] pursuant to Paragraph 6 of the Quigg Pledge Agreement shall hereby
immediately vest in [Quigg]”; and (4) use all rights and remedies provided by article 9 of the UCC
and any other applicable law, including conducting a public sale, “retain[ing] the shares as
satisfaction of the debt,” or “otherwise enforc[ing] her security interest through judicial
- 24 - proceeding.”
¶ 87 Saleem argues that the June 16 notice of default is insufficient because it relied on
section 4.3 of the stock sale agreement as a basis for the default, but section 4.3 was deleted by
amendment of the parties in 2019. Further, Saleem contends the notice did not provide adequate
information about the breach or how to cure because it did not provide an amount that Quigg and
Stocker believed they were owed pursuant to section 2(B).
¶ 88 The fact that the notice refers to a deleted provision is of no moment. The substance
of the notice clearly identifies the two breaches as (1) defaulting under the Bank of Springfield
loan and (2) failing to make adequate section 2(B) payments. Section 9 did not require Quigg to
identify the relevant provision of the sale documents, and the notice’s referring to a deleted section
did not cause any confusion. Similarly, Quigg’s failure to provide a specific payment amount did
not render the entire notice ineffective; this is particularly true considering that Quigg included a
copy of the Bank of Springfield notice of default, which did give a specific dollar amount, with
her June 16, 2022, notice of default to Saleem. Most important, the notice unquestionably provided
the necessary information required by section 9 regarding Saleem’s alleged default on the Bank of
Springfield line of credit. Saleem has never argued that (1) he did not default on the line of credit
or (2) by breaching the terms of the line of credit, he was nevertheless not in default under the
terms of the sale documents. Accordingly, the notice of default was sufficient as to that alleged
default.
¶ 89 The June 16 notice of default specifically identified the default of the Bank of
Springfield line of credit as one basis for Saleem’s default under the sale documents. Although
section 4.3 was subsequently deleted, the terms contained therein were substantially identical to
the terms in the line of credit restricting the amounts and purposes of disbursements for stock
- 25 - dividends. Reading the letter as a whole, Saleem was clearly informed of the basis for the breach
[SEGMENT 11]
and that he could cure it by returning the unauthorized disbursements to QEI or he risked Quigg
claiming all of his rights in the QEI stock she held as collateral.
¶ 90
. Saleem’s Failure To Cure and His Defense That Quigg’s Failure To Execute
the Subordination Agreement Prevented Him From Curing
¶ 91 Section 7(A) of the pledge agreements and section 6(b) of the notes both provide
that an event of default occurs when a breach of any covenant or obligation under the sale
documents goes uncured for 30 days after written notice of the breach is given. As we explained
earlier, aside from his own conclusory and unsupported statements, Saleem has not pointed to
anything in the record that contradicts Quigg’s evidence that he took disbursements of over
$600,000 as unauthorized stock dividends despite the unambiguous restrictive covenants in the
Bank of Springfield line of credit agreement. Saleem claimed that no one asked him to return the
money, but he acknowledged receipt of the June 16 notice of default, which clearly states the
unauthorized distributions must be returned to QEI, with supporting documentation, no later than
July 18, 2022.
¶ 92 Saleem testified, and Samina and other evidence (such as Saleem’s e-mail to
Halsne) confirmed, that he took a disbursement of $300,000 to purchase an office building in his
name, which he intended to lease back to QEI. Even assuming, as evidence in the record suggests,
that Saleem’s personally purchasing an office building for QEI to lease, as Quigg herself had done,
was arguably a sound business decision made in good faith for QEI’s benefit, Saleem admitted
(1) he took other disbursements that he only partially used to pay taxes, with no further
explanation, and (2) the $300,000 he had set aside to purchase the office building for QEI’s use
was currently being used by him to pay his personal litigation expenses defending the lawsuit.
- 26 - Accordingly, no genuine issue of material fact exists that Saleem took unauthorized disbursements
that he was using personally, not for QEI, and he never returned the money to QEI as demanded,
much less within the 30-day cure period.
¶ 93 We note that Saleem argues that Quigg breached her obligations by not negotiating
and signing the Signature Bank subordination agreement, which ostensibly would have given QEI
and Saleem the ability to cure the Bank of Springfield default. Saleem also briefly mentions that
Quigg failed to sign the 90-day extension agreement with Bank of Springfield to give him and QEI
more time to secure another lender. However, Saleem makes these arguments when asserting why
the trial court erred by dismissing his counterclaims, which are based primarily on these instances
of Quigg’s interfering with QEI’s business operations. Neither before the trial court nor this court
did Saleem explicitly (or even just clearly) claim Quigg’s failure to sign the extension agreement
constituted a defense to his default. (Saleem does not and cannot make such a claim against Stocker
because Stocker (1) was not required by Bank of Springfield to sign the extension agreement and
(2) did sign the subordination agreement required by Signature Bank as a precondition to
extending QEI a line of credit.)
¶ 94 In any event, we conclude that Saleem’s contentions do not raise an issue of
material fact regarding his failure to cure his taking unauthorized distributions. The June 16 notice
of default specified that Quigg would deem the default under the Bank of Springfield line of credit
to be cured so long as Saleem tendered the full amount of the unauthorized distributions back to
QEI. The notice of default does not mention obtaining a new line of credit was required to cure
the alleged default under the sale documents, and that makes sense given that (1) the line of credit
did not mature until June 30, 2022, meaning it could be paid in full on time if the disbursements
were returned, and (2) if the funds were returned to QEI, QEI could use them for operating
- 27 - expenses, thereby arguably making them authorized distributions. Whatever the reason, Quigg was
entitled to dictate the actions necessary for her to deem Saleem’s default cured, and the actions she
decided were appropriate to cure were (1) returning the disbursements to QEI and (2) providing
supporting documentation for the same.
¶ 95 To the extent Saleem claims Quigg’s refusal to sign the subordination agreement
prevented him from curing, we are not persuaded to reach a different conclusion. As previously
mentioned, the only evidence Saleem offered regarding why he had not returned the distributions
was his own testimony that no one ever asked him to do so. Although Bank of Springfield did not
make a request, Quigg did, and because the pledge agreement specifically deemed a default on the
senior indebtedness constituted a default under the sale documents, Quigg’s request is the only one
that matters. Most important, Saleem’s assertions regarding Quigg’s failure to sign the
subordination agreement also form the basis for count I of his counterclaim for breach of contract,
and Saleem may fully recover any damages he suffered as a result of Quigg’s failure to sign,
assuming Saleem succeeds on the merits of his claim on remand.
¶ 96
. Summary
¶ 97 Based on our review of the record, we conclude that no genuine issue of material
fact exists that (1) Saleem defaulted on the Bank of Springfield line of credit, (2) Quigg provided
the required written notice of that default, and (3) Saleem did not cure the default within 30 days
of his receiving notice.
¶ 98 D. The Automatic Vesting Provision Violates Article 9 of the UCC
¶ 99 Next, Saleem argues that the trial court erred by rejecting the merits of his
arguments and counterclaims that were predicated on the applicability of certain nonwaivable
provisions of article 9 of the UCC and Quigg’s failure to comply with the requirements of those
- 28 - provisions. Specifically, Saleem relies on section 9-620 of the UCC (810 ILCS 5/9-620 (West
2018)), which permits a secured party to retain collateral in satisfaction of a debt only if the debtor
has agreed to such a result in a writing authenticated after default. Saleem argues that the court
incorrectly ruled that (1) section 9-620 was inapplicable to this case, not because Saleem waived
that provision but because he agreed to an alternate remedy, and (2) Quigg’s August 1, 2022,
election to accept the pledged stock in full satisfaction of Saleem’s debt was authorized and
effective under the express terms of the pledge agreement.
¶ 100 To analyze this claim, we begin by explaining why article 9 of the UCC applies and
what section 9-620 requires.
¶ 101
. The Applicability of Article 9
¶ 102 “Article 9 of the UCC (810 ILCS 5/9-109(a)(1) (West 2020)) ‘applies to any
transaction, regardless of its form, that intends to create a security interest in personal property.’ ”
[CITATION]. Among other things, article 9 sets forth the
rules governing (1) how creditors create and perfect a security interest, or lien, in collateral used
as security for a loan (810 ILCS 5/9-301 to 9-316 (West 2018)); (2) determining the priority of
competing security interests in the same collateral (id. §§ 9-317 to 9-339); (3) the rights and
remedies of creditors and debtors before and after default (id. §§ 9-207 to 9-210, 9-601 to 9-628);
and (4) the sale and disposition of collateral in satisfaction of a debt (id. §§ 9-610 to 9-622).
¶ 103 Here, the parties agree that the UCC applies because Saleem pledged the
certificated stock as collateral, giving Quigg and Stocker a security interest in that collateral in the
event of a default. The parties further agree that Quigg and Stocker attempted, after they declared
- 29 - Saleem in default, to take ownership of the shares under section 8 of the pledge agreements as a
complete remedy. Section 8 provides as follows:
“[U]pon the occurrence of an Event of Default under this Agreement, all
Obligations shall, at the election of the Pledgee, become immediately due and
payable, without notice to the Pledgor, and all rights of the Pledgor in respect to the
Collateral, including all rights of the Pledgor under the terms of Section 6 shall
immediately vest in the Pledgee. In addition to having all rights and remedies
provided under other provisions hereof or provide[d] in Article 9 of the Uniform
Commercial Code of the State of Illinois (the ‘Code’) and any other applicable law,
subject to the rights of the Senior Lender, if applicable, the Pledgee may sell the
Collateral in the manner permitted by Article 9 of the Code.”
¶ 104 Section 6 provides that “[u]nless and until an Event of Default has occurred and is
continuing,” Saleem was entitled “to receive all cash distributions paid in respect of the Shares”
[SEGMENT 12]
and “to exercise any voting and/or consensual powers pertaining to the Shares or any part thereof,
for all purposes not inconsistent with the terms of this Agreement.”
¶ 105 Based on the above, Quigg and Stocker claim the pledge agreements immediately
vested, at their election, all of Saleem’s rights in the stock. They assert that this result is proper
because the note was a “nonrecourse note,” which meant they could only seek to recover the
outstanding debt through the collateral and not Saleem personally. Saleem argues that this remedy
is known as “strict foreclosure” and is governed by section 9-620 of the UCC.
¶ 106
. Section 9-620
¶ 107 Section 9-620 is titled “Acceptance of collateral in full or partial satisfaction of
obligation; compulsory disposition of collateral” and provides as follows:
- 30 - “(a) Conditions to acceptance in satisfaction. Except as otherwise provided
in subsection (g) [(which deals with consumer transactions)], a secured party may
accept collateral in full or partial satisfaction of the obligation it secures only if:
(1) the debtor consents to the acceptance under subsection (c);
***
(b) Purported acceptance ineffective. A purported or apparent acceptance of
collateral under this Section is ineffective unless:
(1) the secured party consents to the acceptance in an authenticated
record or sends a proposal to the debtor; and
(2) the conditions of subsection (a) are met.
(c) Debtor’s consent. For purposes of this Section:
***
(2) a debtor consents to an acceptance of collateral in full
satisfaction of the obligation it secures only if the debtor agrees to the terms
of the acceptance in a record authenticated after default or the secured party:
(A) sends to the debtor after default a proposal that is
unconditional or subject only to a condition that collateral not in the
possession of the secured party be preserved or maintained;
(B) in the proposal, proposes to accept collateral in full
satisfaction of the obligation it secures; and
(C) does not receive a notification of objection authenticated
by the debtor within 20 days after the proposal is sent.” (Emphases
added.) 810 ILCS 5/9-620(a)-(c) (West 2018).
- 31 - ¶ 108 “In construing the UCC, this court has also looked to the UCC official comments
to discern the legislature’s intent.” [CITATION], ¶ 16,
162 N.E.3d 269. “[T]he Illinois UCC is based on the Uniform Commercial Code enacted by all 50
states and, therefore, decisions from other states and federal case law may be helpful in this
analysis. In the absence of Illinois cases on the subject, Illinois courts have looked to UCC
decisions from other jurisdictions.” Id. ¶ 20 (citing [CITATION]).
¶ 109 Comment 2 says that section 9-620 “deal[s] with strict foreclosure, a procedure by
which the secured party acquires the debtor’s interest in the collateral without the need for a sale
or other disposition under Section 9-610.” 810 ILCS Ann. 5/9-620, UCC Comment 2 (Smith-Hurd
2022). As noted in comment 5 to section 9-620, “[t]o ensure that the debtor cannot unilaterally
cause an acceptance of collateral,” “acceptance does not occur unless, in addition, the secured
party consents to the acceptance in an authenticated record or sends to the debtor a proposal.” 810
ILCS Ann. 5/9-620, UCC Comment 5 (Smith-Hurd 2022).
¶ 110 Illinois has held since the 1970s that a creditor’s purported retention of collateral in
satisfaction of a debt is ineffective—that is, the creditor does not take ownership of the collateral—
if the creditor fails to comply with the consent or written notice requirement of section 9-620.
[CITATION] (holding, based on prior Illinois cases and cases from other jurisdictions, that retention of collateral
is ineffective if notice requirements of the UCC are not complied with). See [CITATION], ¶ 31 (explaining, based on comment 5 to section
9-620, that mere acceptance of physical possession of collateral does not amount to retention in
- 32 - satisfaction of a debt).
¶ 111 Courts in other jurisdictions have held the same. See [CITATION] (holding failure to
comply with article 9 rendered retention ineffective and that automatic transfer provision in
contract was “nothing more than an unenforceable attempt at predefault waiver of the debtor’s
rights under Article 9”); [CITATION] (holding
retention of mobile home was not effective and section 9-620 could not be waived).
¶ 112 Here, Saleem did not consent to the acceptance of the collateral in satisfaction of
the debt, and Quigg and Stocker did not send a written proposal to Saleem. Because the parties did
not comply with section 9-620, the “purported or apparent acceptance of collateral *** is
ineffective.” 810 ILCS 5/9-620(b) (West 2018).
¶ 113
. The Terms of Section 9-620 Cannot Be Waived or Varied by the Parties
¶ 114 Quigg acknowledges that she did not comply with section 9-620 because, she
argues, the terms of the pledge agreements provided an alternative remedy by agreement: the
automatic transfer described in section 8. Quigg asserts that the automatic transfer provision in
section 8 of the pledge agreements is consistent with article 9 because section 9-601(d) explicitly
permits parties to secured transactions to vary the application of Article 9 by agreement. See id.
§ 9-601(d) (“[A]fter default, a debtor and an obligor have the rights provided in this Part and by
agreement of the parties.”).
¶ 115 However, as Saleem correctly argues, the plain language of section 9-601(a) states,
- 33 - “After default, a secured party has the rights provided in this Part and, except as otherwise provided
in Section 9-602, those provided by agreement of the parties.” (Emphasis added.) Id. § 9-601(a).
Section 9-602 expressly provides that “to the extent that they give rights to a debtor or obligor and
impose duties on a secured party, the debtor or obligor may not waive or vary the rules stated in
the following listed Sections.” (Emphasis added.) Id. § 9-602. And section 9-620 is listed as one
of the sections that the parties cannot alter. Id. § 9-602(10).
¶ 116 Courts uniformly agree that section 9-620 may not be waived. [CITATION] (holding, under a prior version of section 9-620, “Notice is required by the plain meaning
of the section and none was given. Under section 9-501(3) quoted above, such notice could not be
waived and no other agreement appears in the record. It follows that [the plaintiff] could not retain
the collateral in discharge of the obligation.”); [CITATION] (“The provisions of § 409.620 may not be waived by the parties.”); [CITATION] (holding section 9-620 may not be waived or varied by parties and
collecting cases); [CITATION] (holding
provision in contract allowing for retention and forfeiture of ownership in stock pledged as
collateral violated section 9-620); [CITATION] (“The remedy is only available if the debtor consents to strict foreclosure after it has
defaulted. Thus, for example, the debtor cannot consent to strict foreclosure in anticipation of a
future default at the time it enters into the transaction that creates the debt and security interest,”
and “[t]he requirements of § 9-620 may not be waived.”); [CITATION] (holding
that section 9-602 prevents parties from opting out of UCC provisions listed therein, including the
right of redemption, and collecting cases); [CITATION].
¶ 117 Quigg argues that these cases are distinguishable because they do not involve
nonrecourse notes. However, Quigg provides no authority to support her conclusory statement that
this distinction makes a difference. Importantly, nothing in the UCC even suggests that a
nonrecourse note affects the rights or remedies of the parties to a secured transaction; but section
9-602 does permit a secured party to waive its rights. [CITATION]. Moreover, as
Saleem points out in his brief, Quigg and Stocker have not provided this court any authority from
any source countenancing the automatic transfer of ownership of collateral or predefault waiver of
section 9-620’s requirements.
¶ 118 Here, the trial court insisted that its ruling did not rest on a finding that Saleem
waived any rights under section 9-620. Instead, the court maintained that Saleem simply contracted
for an alternative remedy in addition to those provided by the UCC and found that Quigg properly
invoked that alternative remedy after Saleem’s default. However, that alternative remedy was, in
reality, precisely the remedy provided for in section 9-620: acceptance of collateral in full
satisfaction of the debt. The trial court’s finding was waiver by a different name.
¶ 119 Our conclusion is best exemplified by Quigg’s counsel’s arguments to the trial
[SEGMENT 13]
court on this issue. Counsel informed the trial court that because the parties entered into a
nonrecourse note and pledge agreement, the court’s judgment declaring Quigg the owner of the
stock fully resolved the dispute between the parties. All of Saleem’s debts and obligations under
the agreement terminated, and he was no longer liable on those agreements in any respect. Counsel
stated that nothing in the sale documents gave Saleem any right or claim to any surplus or set-off
in the event of default. The plain language said that all Saleem’s rights immediately vested in
- 35 - Quigg and discharged Saleem. Had Saleem wanted any set-off or surplus, the time to ask for it
was when the parties negotiated the purchase agreement and agreed to this alternative remedy.
¶ 120 Counsel’s statements perfectly describe the remedy of strict foreclosure, which is
codified in the UCC in sections 9-620 to 9-622 (810 ILCS 5/9-620 to 9-622 (West 2028)). It is
impossible to understand Quigg’s acceptance of collateral in full satisfaction of the debt as
anything other than just that. Accordingly, the trial court erred by granting Quigg ownership of the
QEI stock and finding that the UCC permitted the parties to agree that Quigg could elect to retain
the collateral shares in satisfaction of the debt without Saleem’s postdefault consent. This
conclusion is inescapable (1) under the plain language of the UCC, (2) pursuant to long-standing
Illinois case law, and (3) based on uniform precedent across the country.
¶ 121
. The Applicability of Section 9-207
¶ 122 Quigg argued, and the trial court agreed, that section 9-207(b)(4)(C) (810 ILCS 5/9-
207(b)(4)(C) (West 2018)) permitted the parties to agree to the strict foreclosure remedy set forth
in section 8 of the share pledge agreements. Section 9-207(b)(4)(C) provides, “[I]f a secured party
has possession of collateral: *** the secured party may use or operate the collateral *** in the
manner and to the extent agreed by the debtor.” Id. Section 9-207 cannot be interpreted to provide
such a result for two reasons.
¶ 123 First, section 9-207 applies to a secured party’s use and operation of collateral in
its possession either before or after default. Id. § 9-207, UCC Comment 4. By contrast, section 9-
620 deals solely with the acceptance of collateral after default. Id. § 9-620. Well-settled rules of
statutory interpretation provide that a more specific provision controls over a general one. [CITATION]
Because section 9-620 deals with acceptance of collateral in satisfaction of a debt after default, it
is more specific to the facts
- 36 - of this case and controls.
¶ 124 Second, and more simply, section 9-207 deals with the use and operation of
collateral in possession of a secured party as collateral. See 810 ILCS 5/9-102(12) (West 2018)
(Collateral “means the property subject to a security interest or agricultural lien.”). Section 9-207
applies to secured parties in possession of collateral either before or after default and permits “the
secured party [to] use or operate the collateral” in certain ways. (Emphasis added.) Id. § 9-
207(b)(4) (“(A) for the purpose of preserving the collateral or its value; (B) as permitted by an
order of a court having competent jurisdiction[.]”). That is, the secured party who uses or operates
any collateral in its possession continues to hold that collateral on behalf of the debtor as security
for the underlying debt. Although the collateral may be leased, sold, or pledged as security in a
different loan, it never ceases to be collateral owned by the debtor.
¶ 125 This is why section 9-207 explains how any proceeds from that use or operation of
collateral must be handled by the secured party. Some of those provisions speak directly to
possession of stock (id. § 9-207(c)); specifically, they permit the creditor in possession of stock to
retain cash distributions or dividends as further collateral, decreasing the outstanding debt by the
value of those retained funds (id.). What section 9-207(c) permits is for a party in possession to
use the collateral to decrease and eventually eliminate the secured debt, at which point the
collateral and any income generated by that collateral in excess of the debt must be delivered to
the debtor. See id. (providing that a secured party in possession or control of investment property
may hold proceeds received from the collateral as additional security, “shall apply money or funds
received from the collateral to reduce the secured obligation, unless remitted to the debtor,” and
may repledge the collateral as security for a loan); see also id. § 9-207, UCC Comments 3, 5, and
6 (providing a detailed discussion and extensive examples of the meaning and operation of
- 37 - subsection (c) investment property). See also [CITATION], ¶¶ 37-44 (explaining why it was commercially reasonable for the bank in that
case to hold the TIF note, pledged as part of the collateral to secure the loan, and receive interest
payments to reduce the outstanding debt rather than (1) accepting the note in full or partial
satisfaction of the debt or (2) selling or otherwise disposing of the TIF note under section 9-610).
¶ 126 Quigg’s section 9-207 argument is fundamentally at odds with the purpose of that
provision because it seeks to transform the pledged stock from collateral for a loan into Quigg’s
personal property in satisfaction of that loan. Quigg has consistently asserted that the agreement
allowed her to immediately vest in herself all of the rights to the pledged stock to the exclusion of
any interest of Saleem. In short, she would have all the rights in the collateral, and Saleem would
have none.
¶ 127 The correct interpretation of the parties’ agreement is the same one that Quigg
adopted in her June 16, 2022, notice of default. That notice provided that, if Saleem did not cure
his default by July 18, 2022, Quigg would, “[i]n accordance with Paragraph 8 of the Quigg Pledge
Agreement,” exercise her right to “declare that all rights of the Pledgor pursuant to Paragraph 6 of
the Quigg Pledge Agreement shall hereby immediately vest in the Pledgee.” Section 8 provides,
“[U]pon the occurrence of an Event of Default under this Agreement, all
Obligations shall, at the election of the Pledgee, become immediately due and
payable, without notice to the Pledgor, and all rights of the Pledgor in respect of
the Collateral, including all rights of the Pledgor under the terms of Section 6, shall
immediately vest in the Pledgee.” (Emphasis added.)
¶ 128 Case law from around the country demonstrates that when shares of stock are
pledged as collateral, the terms of the pledge agreement are a critical part of determining who may
- 38 - exercise the ordinary rights of a shareholder, such as voting rights and dividends.
¶ 129 The general rule is that the pledgor of the stock has the right to vote the shares held
until the shares are transferred into the name of the pledgee. 810 ILCS 5/7.45 (West 2018).
However, the shareholder rights of stock pledged as collateral may be allocated by agreement of
the parties. In re [CITATION] (“Pledges of investment
securities routinely empower the secured creditor to transfer the pledged securities on the books
of the issuing corporation as a means of enabling the secured creditor to collect dividends and vote
the shares during the term of the loan. Cf., e.g., [CITATION] (although secured creditor exceeded its voting authority under pledge
agreement, provision permitting it to register pledged shares in its own name afforded creditor
ordinary voting rights).”).
¶ 130 Cases directly on point have explained that a creditor’s exercising voting rights,
acceptance of dividends, registering the shares in the creditor’s name, and even pledging or
assigning rights in the stock is typically permitted notwithstanding the fact that the creditor is not
the owner of the shares. See id.; [CITATION] Such actions do not necessarily
demonstrate an intention to exercise ownership of the shares or to retain the pledged collateral
stock in satisfaction of the debt. Id.
¶ 131 Here, the parties specifically agreed that Saleem would retain all voting rights in,
and rights to dividends from, the shares of stock unless and until an event of default. In [CITATION] the court examined
whether the creditor was permitted to exercise voting rights when the security agreement provided
only that the debtor retained voting rights until an event of default. The court held that the creditor
- 39 - was permitted to exercise the ordinary rights incident to being a shareholder in possession of the
stock in the absence of language to the contrary. Id. In [CITATION], the security
agreement pertaining to the pledged shares of stock provided that the creditor, after default, could
transfer the stock into its name and collect all dividends to hold as additional security. In [CITATION],
the agreement between the parties permitted the creditor to sell or
otherwise encumber the collateral stock. And in [CITATION],
[SEGMENT 14]
the court held that the creditor’s exercise of voting rights in the shares the creditor possessed as
collateral and taking control of the operations of the company was not an act of ownership where
the security agreement provided that the debtor could exercise voting rights only until a default
occurred. See also [CITATION]
(stating that Citibank’s exercise of voting rights in pledged collateral in its possession could
have made it liable for damages to the debtor where Citibank exercised those rights to elect
incompetent board members and managers of the company, which significantly harmed the value
of the pledged stock).
¶ 132 Similarly, in this case, the pledge agreement expressly provides that Saleem
reserves the bulk of his shareholder’s rights in the pledged shares, unless and until an event of
default. Section 8 then provides that, in the event of a default, at Quigg’s election, she may exercise
all of Saleem’s rights, including those listed in section 6. That section reserves all of the rights of
ownership to the stock in Saleem except for the ability to transfer, pledge, or encumber; the
agreement does not contain an explicit restriction on Quigg regarding the ability to transfer, pledge,
or encumber; however, the agreement does permit Quigg to place the shares in her own name on
the books of the corporation, which suggests that, although Saleem could not exercise those rights,
Quigg could. A reasonable, and perhaps the most common, interpretation of the plain language in
- 40 - section 8 would be consistent with Quigg’s position that “all rights of the Pledgor” means all of
Saleem’s rights, including ownership, are transferred upon an event of default. This reading is
especially plausible in light of the subsequent phrase, “including all rights of the Pledgor under the
terms of Section 6,” because section 6 contains nearly all of the rights incident to ownership of
stock.
¶ 133 However, the UCC explicitly forbids the automatic transfer of ownership in
satisfaction of a debt without compliance with section 9-620. If we interpreted the provision to
mean what Quigg suggests, we would essentially be required to not give that provision any effect
because it violates the public policy codified in section 9-620. See [CITATION] (holding, after reviewing and citing cases from around the country, that when a security agreement
contains a provision that violates a nonwaivable provision of article 9, courts will enforce the
agreement as if the offending provision did not exist). Given this context, Quigg’s suggested
interpretation is not the most reasonable. Instead, we can give effect to all of the language of
section 8 if we interpret “all rights ***, including all rights *** under the terms of Section 6,” as
encompassing the rights in section 6 and the right to place in the holder’s name, assign, and
encumber. In short, we interpret section 8 as granting all rights in the stock except for the ultimate
right of ownership, which amounts to essentially the unwaivable rights of a debtor listed in section
9-602 (redemption, notice of disposition, right to accounting, right to commercially reasonable
sale or disposition, right to surplus proceeds, and right to damages for violations of article 9). This
reading is entirely consistent with the rights listed in section 9-207(b) and also gives effect to
Quigg’s interpretation of section 8 as containing other rights to use and operate collateral in the
creditor’s possession by agreement of the parties pursuant to subsection (b)(4)(C).
¶ 134
. The Relevance of Section 9-207 to the Appropriate Remedy
- 41 - ¶ 135 Although section 9-207 does not bar Saleem’s counterclaim, it is still important to
our disposition of this appeal. The trial court found that the intention of the parties was to permit
Quigg to take operational control of QEI in the event of Saleem’s default. Quigg alleged in her
complaint that Saleem’s actions were harming the value of her collateral and she needed to be
placed in control of QEI to protect that value. The evidence presented at the preliminary injunction
hearing unequivocally demonstrated that QEI was not running smoothly, mainly due to its cash
flow problems that resulted from Saleem’s breach of the line of credit with Bank of Springfield.
Section 9-207 allows a party to use or operate collateral in any manner provided by court order,
and courts analyzing section 9-207 have permitted secured parties in possession of shares of stock
that were pledged as collateral to exercise the voting rights from those stocks to operate a company
¶ 136
-
while preserving the stock’s status as collateral. [CITATION]
As we earlier explained, section 8 of the pledge agreement can be read consistently
with the antiwaiver provisions, so we interpret it in that manner under the presumption that
contracting parties intend to comply with the law to the extent possible. Section 8 is best
understood as authorizing specific rights for Quigg to use the collateral in a specified manner as
provided for in section 9-207.
¶ 137 Based on the above reading, section 9-207 authorized the trial court to enter the
relief sought by Quigg—namely, to be placed in charge of the company—but Quigg was merely
using and operating the collateral stock as collateral and for the preservation of the collateral on
behalf of Saleem, who continued to be the owner.
¶ 138 The parties agreed that pursuant to the sale documents, starting on January 1, 2019,
Saleem was the sole owner of 100% of the shares of QEI and its president and CEO. The parties
further agree that Saleem pledged the shares of stock as collateral and gave Quigg and Stocker
- 42 - (1) physical possession of the stock certificates and (2) an independent assignment in blank of the
shares back to Quigg and Stocker. The share pledge agreements contained the relevant terms
governing the rights and interests the parties had in those shares of stock. Specifically, unless and
until an event of default, Saleem was entitled to exercise all shareholder rights in the stock, except
he could not assign, pledge, or encumber the stock. The pledge agreements dictated that Quigg
and Stocker, as holders and possessors of the stock, had a mere security interest in the stock as
security for the notes and were required to physically preserve the certificates. Quigg and Stocker
were allowed to register the shares in their names. If an event of default occurred, Quigg and
Stocker could elect to declare the entire indebtedness due and payable and immediately vest all of
Saleem’s rights, including those listed in section 6 of the pledge agreements, in Quigg and Stocker.
¶ 139 Based on the above, Saleem was entitled to control and operate QEI by voting 100%
of the shares, unless and until (1) an “Event of Default,” as defined in the pledge agreements,
occurred and (2) Quigg and Stocker elected to accelerate the debt and vest in themselves Saleem’s
rights under section 6 of the pledge agreements. The trial court was not required to determine
whether Quigg and Stocker were the owners of the stock in order to resolve the dispute and declare
the respective rights of the parties under the terms of the sale documents.
¶ 140 Accordingly, we vacate the trial court’s judgment that Quigg and Stocker were
vested with ownership of the collateral stock. We further conclude that Saleem remains the legal
owner of the collateral stock under the terms of the sale documents, without any of the rights in
section 6, which have now vested in Quigg and Stocker, until Quigg and Stocker (1) properly sell
or otherwise dispose of the collateral as provided in section 9-610, (2) properly seek to retain the
stock in full satisfaction of the debt in compliance with section 9-620, or (3) exercise any other
remedy consistent with the UCC and the pledge agreements. We make clear that nothing in this
- 43 - order prevents the parties from entering into a settlement to resolve their respective claims by agreement.
¶ 141 By affirming the trial court’s placing Quigg and Stocker in charge of QEI, we make no determinations about the effect of Quigg’s and Stocker’s exercising Saleem’s rights to the collateral under section 6 of the pledge agreements on Saleem’s counterclaim for damages or the amount of indebtedness remaining. That is, Saleem claims that he is entitled to the equity he had in QEI based on his payments and the increase in value of the company. On remand, Saleem may further pursue these claims, and Quigg and Stocker may assert any defenses or claims they may have in response.
¶ 142 E. A Declaratory Judgment Action Was Proper
¶ 143 Salem also argues that the trial court erred by not granting his motion for judgment on the pleadings because Quigg’s complaint was not a proper declaratory judgment action and instead was, in fact, a claim for breach of contract. We disagree.
¶ 144 First, given that Saleem disputed both that he defaulted and that Quigg had the authority to take ownership of the collateral, this case is appropriate for a declaratory judgment. The parties are still governed by the purchase contract, and a dispute exists between the parties. Second, Saleem’s counterclaim for breach of contract is sufficient to give the trial court jurisdiction to resolve Quigg’s claims even if they are restyled as breach of contract. See [CITATION]. In short, no reason exists to limit the trial court’s ability to adjudicate the claims the parties have placed before it.
[SEGMENT 15]
¶ 145 F. Motion for Leave To Amend
¶ 146 Saleem also argues that the trial court erred by denying his motion for leave to amend his counterclaims. Because we vacate the trial court’s dismissal of Saleem’s counterclaims,
- 44 - we need not address whether the trial court erred by denying him leave to amend those claims. On
remand, Saleem can seek leave to amend if he so desires, and the trial court can consider that
motion in the normal course of proceedings.
¶ 147 G. Summation of Holdings
¶ 148 The trial court entered summary judgment in favor of Quigg on the issues of
(1) Saleem’s default under section 2(B) of the notes and (2) her ability to take ownership of the
collateral in satisfaction of Saleem’s debt. We conclude that summary judgment on the issue of
Saleem’s default was proper because no genuine issue of material fact exists that he defaulted on
the Bank of Springfield line of credit, received proper notice of that default, and failed to cure it.
We also conclude that the trial court did not err by granting Quigg the ability to exercise Saleem’s
voting rights in the collateral and operate QEI.
¶ 149 However, the trial court did err when it concluded that Quigg became the outright
owner of the collateral without having to comply with section 9-620 of the UCC because the parties
expressly provided for that remedy as part of the sale agreement. Because the UCC expressly
prohibits parties from varying or waiving the provisions of section 9-620, we vacate the trial
court’s dismissal of Saleem’s counterclaim and its entry of summary judgment in favor of Quigg
to the extent that judgment held Quigg had accepted the collateral in satisfaction of the debt.
¶ 150 In short, we have affirmed the portions of the trial court’s judgment that we deem
correct, and any remaining findings of fact or determinations of law are vacated.
¶ 151 Although we remand the case for further proceedings, we make clear that
(1) nothing in this order disturbs Quigg’s current position as head of QEI and (2) we express no
opinion on how the case should proceed on remand. That is, the trial court is free on remand to
continue its order permitting Quigg and Stocker to operate QEI so as to preserve the value of the
- 45 -
====== End of Court Ruling ====== collateral—namely, the 1000 shares of QEI stock owned by Saleem and in the possession and
control of Quigg and Stocker to secure the loan. Further, we express no opinion on the ultimate
outcome of the case, potential remedies, or courses of action with respect to the collateral. We
emphasize that the parties may still avail themselves of the procedures provided in section 9-620
and nothing in this order or the UCC prevents them from negotiating a mutually agreeable
resolution through a settlement agreement. Because such an agreement would be entered into after
default, section 9-620 would authorize the waiver of its various provisions.
¶ 152 III. CONCLUSION
¶ 153 For the reasons stated, we affirm the trial court’s entry of summary judgment in
favor of Quigg on (1) Saleem’s default under the sale documents based on his default on the Bank
of Springfield line of credit and (2) Quigg’s ability to control QEI, vacate all of the trial court’s
other findings and judgments, and remand for further proceedings not inconsistent with this order.
¶ 154 Affirmed in part, vacated in part, and remanded for proceedings not inconsistent
with this order.
- 46 -
2024 IL App (1st) 240344
No. 1-24-0344
Opinion filed June 14, 2024
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
PORTAGE PARK CAPITAL, LLC, ) Appeal from the
an Illinois Limited Liability Company, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
) No. 23 CH 008139
v. )
) Honorable
A.L.L. MASONRY CONSTRUCTION ) Anna Loftus,
COMPANY., INC. d/b/a All Construction Group, ) Judge, presiding.
an Illinois Corporation, )
)
Defendant-Appellee. )
PRESIDING JUSTICE MITCHELL delivered the judgment of the court, with opinion.
Justice Lyle and Justice Navarro concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Portage Park Capital appeals the circuit court’s order compelling arbitration for
all of the issues plaintiff raised and dismissing the case. The issue on appeal is whether the circuit
court erred by determining that the validity of a mechanic’s lien is subject to arbitration. For the
reasons stated below, we hold that the circuit court did not err and affirm. No. 1-24-0344
¶2 I. BACKGROUND
¶3 Plaintiff Portage Park Capital contracted with defendant A.L.L. Masonry Construction
Company to construct a new self-storage building in Chicago, Illinois, for plaintiff. The contract
is a standard form AIA agreement with an arbitration clause that provides as follows:
“If the parties have selected arbitration as the method for binding dispute resolution
in the Agreement, any Claim subject to, but not resolved by, mediation shall be subject to
arbitration which shall be conducted in Chicago, Illinois by a single arbitrator selected by
mutual agreement of the parties.”
A claim subject to arbitration under the contract is defined as
“a demand or assertion by one of the parties seeking, as a matter of right, adjustment
or interpretation of Contract terms, payment of money, extension of time or other relief
with respect to the terms of the Contract. The term ‘Claim’ also includes other disputes and
matters in question between the Owner and Contractor arising out of or relating to the
contract. The responsibility to substantiate Claims shall rest with the party making the
Claim. Claims must be initiated by written notice.”
The parties agreed to submit all claims not resolved by mediation to arbitration.
¶4 Over the course of the parties’ dealings, disputes arose regarding the amount of money that
plaintiff owed defendant. Accordingly, defendant filed a mechanic’s lien for the amount it believed
that it was still owed under the contract. A short time later, plaintiff made a demand for arbitration
regarding the payment of money under the contract and the amount due. This arbitration is
currently duly convened and pending. Plaintiff also filed this action in the circuit court of Cook
County, seeking a declaratory judgment that defendant’s mechanic’s lien “is fraudulent and/or
No. 1-24-0344
false and thus void.” In response, defendant filed a motion to compel arbitration and a section 2-
619 motion to dismiss. The circuit court granted defendant’s motion, dismissing the case and
determining that all claims raised in plaintiff’s complaint were subject to arbitration. This timely
appeal followed. See Ill. S. Ct. R. 303(a) (eff. July 1, 2017).
¶5 II. ANALYSIS
¶6 “A motion to compel arbitration is essentially a section 2-619(a)(9) motion to dismiss or
stay an action in the trial court based on an affirmative matter, the exclusive remedy of arbitration.”
(Internal quotation marks omitted.) [CITATION], ¶ 24. Accordingly, this court “must interpret all pleadings and supporting
documents in the light most favorable to the nonmoving party.” [CITATION], ¶ 28. We review the granting of a motion to compel
arbitration without an evidentiary hearing de novo. [CITATION], ¶ 20.
¶7 A. Arbitrator’s Ability to Consider Lien Validity
¶8 Section 9 of the Mechanics Lien Act provides that “[i]f payment shall not be made to the
contractor having a lien ***, then such contractor may bring suit to enforce his lien in the circuit
court in the county where the improvement is located.” 770 ILCS 60/9 (West 2022). In the early
1900s, the Illinois Supreme Court made clear that this section granted the circuit court exclusive
jurisdiction to enforce a mechanic’s lien. [CITATION]. Several
years later, the supreme court determined that submitting a contract dispute to arbitration does not
waive a party’s ability to seek a mechanic’s lien and that an arbitrator’s decision on the amount
due under the contract would not affect the lien. [CITATION]
No. 1-24-0344
(per curiam). From these holdings, plaintiff contends that the circuit court also has exclusive
jurisdiction to determine the validity of that lien. Defendant does not contest that only the circuit
court may enforce a mechanic’s lien; instead, it asserts that lien validity and lien enforcement are
not equivalent.
¶9 In order to enforce a lien, the party seeking enforcement must prove that the lien is valid.
See [CITATION] 718-19 (2005) (“A mechanic’s lien is valid only if each of the statutory requirements is strictly
observed [citation], and the party seeking to enforce the lien bears the burden of proving that each
requisite has been satisfied [citation].”); [CITATION] 399-400 (1991) (same); [CITATION] 758-59
[SEGMENT 16]
(1989) (same); [CITATION] 549 (1987) (same); [CITATION] 291 (Bankr. N.D. Ala. 2008) (“Before a lien on property can be enforced,
three issues must be addressed: (1) the validity of the lien (because an invalid lien is not
enforceable) ***.”). These cases make clear that lien validity is a prerequisite to lien enforcement.
That is, a court may not enforce a lien unless and until it has been determined that the lien is valid.
Thus, courts have consistently considered lien validity to be an antecedent issue separate from the
enforcement of the lien (rather than a part of enforcement).
¶ 10 Accordingly, the Illinois Supreme Court’s holdings in [CITATION] do not control
here because the issue of whether an arbitrator could consider the validity of a mechanic’s lien was
never presented to either court. While [CITATION] involved a contract dispute, an arbitration clause, and
an allegedly fraudulent lien, the parties there never sought to compel arbitration on the question of
the validity of the lien. Similarly, the supreme court’s holding that “had a lien existed it would not
No. 1-24-0344
have been affected by such an award” does not support concluding that the court intended lien
validity to be nonarbitrable. (Emphasis added.) [CITATION]. The court held only that, in the
context of the case before it, where the arbitrator had decided only the amount due to the plaintiff
in the underlying contract dispute but had not addressed any issues related to the mechanic’s lien,
the arbitrator’s award would have no effect on the lien. Accordingly, [CITATION] and [CITATION] have
nothing to say about what issues parties may arbitrate and provide no support for plaintiff here.
¶ 11 Courts in other jurisdictions have concluded similarly. In Colorado, an appellate court
concluded that “the district court is the proper forum for contesting any disputes as to the
procedural validity of [a] mechanic’s lien” where the validity of the lien was not “put at issue and
decided in arbitration.” [CITATION]. The Utah Supreme Court analyzed the validity of a mechanic’s lien without
considering whether the arbitrator could have ruled on the issue. See [CITATION]. In Connecticut
and Arizona, courts have ruled that a provision in a contract that explicitly reserves the rights of
contractors with respect to statutory remedies under mechanic’s lien laws prevents courts from
compelling arbitration regarding such liens. See [CITATION]. And in Florida, a court
determined that it was error to deny a lien foreclosure when the “arbitrator’s award was silent on
the matter.” [CITATION].1
In contrast, a federal bankruptcy court in Florida concluded that a lien foreclosure fell within an
arbitration clause under Florida law because “there is more than ‘some nexus’ between the dispute and
No. 1-24-0344
However, these cases stand only for the proposition that a trial court may determine the validity of
a mechanic’s lien in certain circumstances, not that it must or that parties to a contract may not
agree to submit the issue to an arbitrator.
¶ 12 Courts in Minnesota, Ohio, and Texas have held specifically that an arbitrator may
determine the validity of a lien. See [CITATION], No. C2-02-266, 2002 WL 31013031,
at *2 (Minn. Ct. App. Sept. 10, 2002); [CITATION], 2021-Ohio-
124, 166 N.E.3d 688, ¶¶ 13-15; [CITATION], 95 S.W.3d 234, 242-43 (Tex. 2002).
Indiana, Michigan, and South Carolina courts have held that mechanic’s lien foreclosures are
broadly subject to arbitration. See [CITATION], 916 N.E.2d 212, 216-17 (Ind. Ct. App. 2009);
[CITATION], No. 359213, 2023 WL 1870446, at *3 (Mich. Ct. App.
Feb. 9, 2023); [CITATION], 747 S.E.2d 461, 466-67 (S.C.
2013). Of the states to have considered the issue, only New York has held that assessing the
validity of a mechanic’s lien is “beyond the power of the arbitrators to determine.” [CITATION], 60 N.Y.S.2d 613, 615 (App. Div. 1946).
¶ 13 This conclusion does not result in tension by providing courts exclusive jurisdiction to
enforce liens but denying courts exclusive jurisdiction to determine whether liens are valid. Courts
have exclusive jurisdiction to enforce any arbitration award—arbitration awards are not self-
executing. See 710 ILCS 5/16 (West 2022) (“The making of an agreement described in Section 1
providing for arbitration in this State confers jurisdiction on the court to enforce the agreement
under this Act and to enter judgment on an award thereunder.”); see also [CITATION]
contract containing the agreement. Indeed, resolution of the issues requires reference to or construction of
the site development contract.” [CITATION]
No. 1-24-0344
Construction Co. v. Brandon Partnership, [CITATION] (recognizing that an
arbitrator “has no power to implement his decisions”); Tamari v. Conrad, [CITATION] (explaining that an arbitration award “must be enforced by a court”). Nevertheless,
courts are frequently prevented from considering the validity of the underlying legal interest at
issue. See, e.g., Buckeye Check Cashing, Inc. v. Cardegna, [CITATION] (“regardless
of whether the challenge is brought in federal or state court, a challenge to the validity of the
contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator”).
¶ 14 This result is consistent with bedrock principles of contract law. The goal in contract law
is to “ascertain and give effect to the intent of the parties.” W.W. Vincent & Co. v. First Colony
Life Insurance Co., [CITATION]. And “an agreement to arbitrate is a matter
of contract.” Salsitz v. Kreiss, [CITATION]. Further, Illinois public policy favors
arbitration. Illinois permits litigants to settle disputes through arbitration because “[a]rbitration is
regarded as an effective, expeditious, and cost-efficient method of dispute resolution.” Royal
Indemnity Co. v. Chicago Hospital Risk Pooling Program, [CITATION] (citing
United Cable Television Corp. v. Northwest Illinois Cable Corp., [CITATION]).
Because the law recognizes arbitrators as sufficiently capable of deciding disputes, if an issue falls
within the scope of an otherwise valid arbitration clause, “judicial review of an arbitral award is
extremely limited.” American Federation of State, County & Municipal Employees, AFL-CIO v.
Department of Central Management Services, [CITATION].
¶ 15 These tenets demonstrate that courts view the act of contracting as volitional and the terms
within a contract as the thoughtful result of a bargained-for exchange. Put more plainly, the terms
of a contract are what the parties voluntarily agreed to. Accordingly, courts should not read limiting
No. 1-24-0344
principles into statutes regarding the issues parties may or may not arbitrate when the legislature
did not expressly provide such a limitation. If it is the intent of the parties to arbitrate a claim,
courts should generally defer to that intent. See [CITATION],
2012 IL App (2d) 111277, ¶ 16 (“whether an issue is subject to arbitration is governed by the
agreement between the parties”). Doing otherwise would trench upon the right of the parties to
contract with one another. See [CITATION] (recognizing a
constitutional right to make and enforce contracts). While the right is subject to limitations, here,
the legislature did not provide a clear, express limitation to that right regarding the validity of a
lien. Accordingly, there is no such limitation.
¶ 16 However, the opposite is also true: parties are not required to submit claims to arbitrators
just because arbitrators are empowered to hear those claims. Instead, agreements to arbitrate are
“matter[s] of contract” and “[t]he parties to an agreement are bound to arbitrate only those issues
which by clear language and their intentions expressed in the language show they have agreed to
arbitrate.” (Internal quotation marks omitted.) [CITATION], 2023
IL 129067, ¶ 29. Accordingly, courts determine the scope of an agreement to arbitrate “using
ordinary contract principles.” Id. ¶ 30. These principles require that “[i]n the absence of an
ambiguity, the intention of the parties at the time the contract was entered into must be ascertained
by the language utilized in the contract itself.” (Internal quotation marks omitted.) Id. Further,
provisions of the contract should not be read in isolation but should be considered in the broader
context of the contract as a whole. Id.
¶ 17 The arbitration agreement at issue covers two types of claims: (1) “a demand or assertion
by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms,
====== End of Court Ruling ====== No. 1-24-0344
[SEGMENT 17]
payment of money, extension of time or other relief with respect to the terms of the Contract” or
(2) “other disputes and matters in question between the Owner and the Contractor arising out of
or relating to the contract.” The language of this agreement closely tracks with what courts have
characterized as a “generic” arbitration clause. See [CITATION]. In Illinois, “courts have generally construed ‘generic’ arbitration clauses broadly,
concluding that the parties are obligated to arbitrate any dispute that arguably arises under an
agreement containing a ‘generic’ provision.” (Emphasis in original.) [CITATION], ¶ 17.
¶ 18 Below, the circuit court determined that the mechanic’s lien arose out of or related to the
contract because, “the questions raised in the complaint *** involve the pay apps, whether they
were overinflated, and the values listed in the subcontractors’ agreements versus what’s on the
mechanic’s lien.” The circuit court explained that, in order to answer these questions, it “would
have to look at requirements under the contract.” To determine the validity of the mechanic’s lien,
the circuit court reasoned that it would need to refer to the parties’ contractual requirements.
¶ 19 The contours of when a dispute “arises out of or relates to” a contract are murky. On one
end of the spectrum, a broad reading of this language could reasonably include anything that would
not have occurred “but for” the existence of the contract. On the other end, a narrow reading could
be limited only to those disputes that involve some “interpretation or construction of the contract.”
While this court has never provided a black-letter rule, courts in other jurisdictions have settled
somewhere in between these options, determining that, for a dispute to arise out of or relate to a
contract, it must “ ‘raise some issue the resolution of which requires a reference to or construction
of some portion of the contract itself.’ ” [CITATION]
No. 1-24-0344
1014 (Fla. Dist. Ct. App. 1996) (quoting [CITATION], 807 P.2d 526, 530 (Ariz. Ct.
App. 1990).
¶ 20 The narrowest reading of “arises out of or relates to” is plainly wrong when considered in
light of Illinois case law. See [CITATION] (agreeing with federal courts that “broad
arbitration clauses do not limit arbitration to the literal interpretation or performance of the
contract”). Illinois’s public policy favoring arbitration militates toward reading “generic”
arbitration clauses broadly. [CITATION]. However, if “generic”
arbitration clauses only reached disputes that involved “interpretation or construction” of a
contract, such clauses would fail to reach disputes that indisputably fall within an arbitrator’s
purview. See, e.g., [CITATION] (holding that “a challenge to the validity of the
contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator”); [CITATION] (concluding that tort claims of breach of fiduciary duty, misappropriation
of business opportunity, and tortious interference with contract, among others, “ ‘[arose] from the
very heart’ of the relationship between [the companies] and are significantly related to the
agreement defining that relationship,” and were thus subject to arbitration); [CITATION] (recognizing the principle that “[w]here an agreement contains a generic
arbitration clause, that clause covers a dispute arising under a subsequent agreement between the
same parties if the original agreement and the subsequent agreement concern the same subject
matter” (citing [CITATION])).
¶ 21 Moreover, if the generic section of the arbitration clause in this case were limited only to
claims that involve interpretation or construction of the contract, the section would be superfluous.
The first section of the clause already extends the arbitration agreement to “a demand or assertion
- 10 - No. 1-24-0344
by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms,
payment of money, extension of time or other relief with respect to the terms of the Contract”—in
other words, claims involving the interpretation or construction of the contract. If the second
section of the clause is limited to the same claims as the first section, there would have been no
need to include it. Given that, “[g]enerally, when interpreting a contract, we must give effect to all
of the contract’s provisions if it is possible to do so,” reading such a redundancy into the agreement
here would be improper. [CITATION], ¶ 51;
see [CITATION], 373 Ill. App. 3d 407, 413 (2007) (“Contractual terms
should be construed so as to avoid the conclusion that other terms are redundant.”).
¶ 22 Instead, at the very least, if resolution of the claims raised in a complaint require the court
to reference the contract, those claims “arise out of or relate to” that contract. Significantly, every
dispute regarding a mechanic’s lien involves some reference to or construction of the contract
because “the liens act becomes a term of every construction contract between the owner and the
contractor for construction of a building.” [CITATION]. Therefore, any reference to the Act is also a reference to
the contract, and without reference to the Act, courts would be unable to resolve disputes related
to mechanic’s liens. But even if this were not the case, the complaint here repeatedly references
the underlying contract and each party’s obligations under the contract. The complaint draws upon
provisions from the contract for support for its claims. Thus, the circuit court could not resolve the
dispute here without reference to the contract. For example, at paragraph 43 of the complaint,
plaintiff claims that defendant falsely and fraudulently swore that “$758,140.00 in Storage
Partitions and Doors was for work to still be performed ***.” In support of this, plaintiff
- 11 - No. 1-24-0344
specifically directs the court to refer to the contractual provision regarding the purchase and
installation of storage partitions and doors.
¶ 23 Additionally, Illinois courts have recognized that “the adjudication of an action to foreclose
a mechanic’s lien involves essentially the same cause of action as that upon which the lien claim
is based.” [CITATION]. Here, the lien claim is based upon a contract dispute between plaintiff and defendant. Thus, the
lien claim is essentially the same cause of action as the contract dispute. Any argument that the
two are unrelated lacks any support in fact or law. Accordingly, the trial court did not err in
concluding that the dispute here arose from or related to the contract.
¶ 24 B. Section 2-619 Motion to Dismiss
¶ 25 Plaintiff next contends that the circuit court procedurally erred when it determined that
resolving plaintiff’s claims would require it to refer to the contract. Plaintiff argues that, because
a section 2-619 motion “admits the legal sufficiency of the complaint” ([CITATION]) and because “[n]o contract interpretation was needed based on
the face of the Complaint,” the circuit court was bound by the complaint. This argument appears
to rely on plaintiff’s mistaken standard for when a claim arises out of or relates to a contract.
However, the circuit court did not need to find, nor did it find, that contract interpretation was
necessary; instead, it found only that it “would have to look at requirements under the contract.”
The complaint on its face directs the court to look at requirements under the contract; therefore,
plaintiff’s argument completely misses the mark.
¶ 26 However, even if the complaint did assert that any reference to the contract in this case
would be unnecessary, the circuit court would not have been obligated to accept the truth of that
- 12 - No. 1-24-0344
assertion. “The defendant does not admit the truth of any allegations in plaintiff’s complaint that
may touch on the affirmative matters raised in the 2-619 motion.” [CITATION]. Accordingly, the party opposing a
motion to compel arbitration “cannot rely on bare allegations alone to raise issues of material fact.”
[CITATION]. Therefore, the circuit
court’s comments, suggesting that it would need to refer to the contract to resolve the claims before
it, were not improper.
¶ 27 III. CONCLUSION
¶ 28 The judgment of the circuit court of Cook County is affirmed.
¶ 29 Affirmed.
- 13 - No. 1-24-0344
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 23-CH-
; the Hon. Anna Loftus, Judge, presiding.
Attorneys Craig Penrose, of Laurie & Brennan LLP, of Chicago, for
for appellant.
Appellant:
Attorneys Frederick J. Sudekum and Jacob R. Coz, of Sudekum, Cassidy &
for Shulruff, Chtrd., and Howard Teplinsky and Mark L. Evans, of
Appellee: Levin Ginsburg, both of Chicago, for appellee.
- 14 - It appears that the provided text for the court ruling is empty. Please provide the part of the court ruling text so that I can process it accordingly by identifying and anonymizing the court ruling citations.
NOTICE
IL App (4th) 230250-U
This Order was filed under
FILED
NO. 4-23-0250 April 11, 2024
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the
IN THE APPELLATE COURT
[SEGMENT 18]
th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
BEHROUZ and JACKELIN AFRAMIAN FAMILY ) Appeal from the
TRUST DATED JULY 1, 1999, as Beneficiary of ) Circuit Court of
Chicago Title Company, Trustee, ) Stephenson County
Plaintiff-Appellant, ) No. 13CH25
v. )
FREEPORT RENAISAANCE LLC a/k/a FREEPORT )
RENAISSANCE, LLC, a Nevada limited liability )
company; E & E MORTGAGE BANKERS )
CORPORATION a/k/a E&E Mortgage Bankers Corp., )
a California corporation; JOSEF SARSHAR; DALIA )
SARSHAR; FREEPORT INDUSTRIAL ROOFING, )
INC., an Illinois corporation; RESTORX OF )
NORTHERN ILLINOIS, a division of Gitz-Meier )
Remodeling Contractor, Inc., an Illinois corporation; )
PCH USA 26, LLC, a California limited liability )
company; MARC MIRBOD; FARIBA )
ATIGHEHCHI; SHAHRAM ELYASZADEH; and )
unknown owners and non-record claimants, )
Defendants, ) Honorable
) Glenn R. Schorsch,
(Fariba Atighehchi, Defendant-Appellee). ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Justices Doherty and DeArmond concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed the trial court’s judgment in favor of defendants after
a bench trial because the judgment was not against the manifest weight of the
evidence.
¶2 This case involves the foreclosure of a “hard money” loan, backed by a mortgage
on Illinois real estate, originating in California between California residents. Plaintiff—the
Behrouz and Jackelin Aframian Family Trust Dated July 1, 1999, as beneficiary of Chicago Title Company, Trustee—seeks to recover a deficiency judgment against defendant Fariba Atighehchi,
personally, based on a guaranty agreement. After the parties filed cross-motions for summary
judgment and the trial court ruled in favor of Atighehchi, the Second District Appellate Court
reversed and remanded, concluding that genuine issues of material fact were present on this record.
[CITATION]
¶3 On remand, the trial court conducted a bench trial and entered judgment in favor of
Atighehchi, concluding that plaintiff failed to meet its burden of proof to show that the facially
ambiguous guaranty agreement was intended by the parties to be a personal guaranty.
¶4 The sole question for this court to resolve on appeal is whether the trial court’s
ruling was against the manifest weight of the evidence. We conclude it was not and affirm.
¶5 I. BACKGROUND
¶6 Given the complexity of this case and the issuance of the Second District’s order
earlier in this case, which provides a detailed background of this case prior to the trial on remand,
we set forth the Second District’s earlier decision to assist the reader in understanding the case
because it is so well written. (We note that Atighehchi is the only defendant on appeal and the only
defendant remaining in the case. Prior to the first appeal, the trial court entered judgment against
all the named defendants except for Atighehchi and Elyaszadeh. On remand, the court entered
judgment against Elyaszadeh following the bench trial, and Elyaszadeh is not a party to this
appeal.) The Second District wrote the following:
“[A. The Facts Giving Rise to the Complaint]
The plaintiff, Behrouz and Jackelin Aframian Family Trust, dated July 1,
, filed this suit to enforce an alleged personal guarantee on a loan, executed by
the three members of *** Freeport Renaissance, LLC. The trial court entered
summary judgment in favor of one of the members of Freeport Renaissance, Fariba
Atighehchi, finding that the guarantee at issue in this case was a corporate guarantee
and was not a personal guarantee from Atighehchi. The plaintiff appeal[ed] from
that order. We reverse and remand for further proceedings.
***
Prior to 2010, 110 FM, LLC, purchased real property located at 1201-1287
West Galena Avenue in Freeport, commonly known as the Freeport Lincoln Mall.
110 FM was equally owned by the defendants, Marc Mirbod and Atighehchi.
Atighehchi was a licensed real estate agent in California. Thereafter, Freeport
Renaissance, a Nevada limited liability company, purchased the property from 110
FM, with a cash contribution from the defendant, Shahram Elyaszadeh, through his
wholly owned company, PCH USA 26, LLC (PCH), a California limited liability
company. As a result of the purchase, Freeport Renaissance was owned 50% by
PCH, 25% by Mirbod, and 25% by Atighehchi. PCH was the manager of Freeport
Renaissance. Atighehchi was responsible for the leasing at the property. At the time
of these transactions, all the members of Freeport Renaissance lived in California.
In 2010, Elyaszadeh approached the plaintiff to obtain a loan. Elyaszadeh
had procured loans from the plaintiff in the past. In previous loans, Elyaszadeh had
signed personal guaranties in favor of the plaintiff. Elyaszadeh, through another
company owned by him, E&E Mortgage Bankers, LLC, had his employee, Allen
Santos, prepare the loan documents. Santos prepared four loan documents: a
promissory note, a security agreement, a deed of trust, and a guarantee (hereinafter
‘Guaranty’).
The Guaranty defined guarantor in the introductory paragraph as ‘Freeport
Renaissance LLC, *** (collectively, the “Guarantor”’).’ The Guaranty also defined
borrower in its recitals as Freeport Renaissance. The Guaranty indicated that
[(1)] the plaintiff was considering making a loan to borrower, [(2)] that the
guarantor desired that the plaintiff extend the loan, and [(3)] that the guarantor was
executing the guarantee to induce the plaintiff to extend the loan to the borrower.
In paragraph 7 of the Guaranty, any notice to the guarantor was to be sent to
Freeport Renaissance at its business address. Paragraph 19a of the Guaranty
provided that ‘[i]f more than one person has signed this Guaranty, it shall be the
joint and several obligation of all such persons.’ Paragraph 19b, indicated that ‘the
term “Guarantor” shall be deemed to refer to any one or both of the parties
constituting Guarantor.’ Paragraph 21 provided that:
‘Each individual whose signature appears below represents and warrants to
the other party that such individual has the full power, authority and legal
right to execute the Guaranty for himself or herself (and/or for any legal
entity on behalf of which he or she signs) and to perform all obligations on
his, her or its part under this Guaranty.’
The Guaranty was signed by Elyaszadeh, as manager of PCH, and by Mirbod and
Atighehchi as ‘individuals.’ The Guaranty was drafted in California and was signed
by Elyaszadeh and Atighehchi in California, and provided that it was subject to
California law. ***
The promissory note, dated November 1, 2010, reflected a $600,000 loan
that was to mature within one year. The maker was defined as Freeport
Renaissance. The note was signed by Elyaszadeh, as manager of PCH, and by
Mirbod and Atighehchi as ‘individuals.’ The security agreement, dated November
1, 2010, defined guarantor and borrower as Freeport Renaissance. It further
provided that ‘Borrower and Guarantor are sometimes individually and/or
collectively referred to herein as “Debtor”.’ In paragraph 7a, it stated that the debtor
was ‘in the case of Guarantor, an individual whose residence is in Los Angeles.’
The security agreement was signed by Elyaszadeh, as manager of PCH, and by
Mirbod and Atighehchi as ‘individuals.’ The deed of trust, which transferred the
deed for the Freeport Lincoln Mall to a trustee (Chicago Title Company) and named
the plaintiff as beneficiary, was signed by Elyaszadeh as manager of PCH and as a
member of Freeport Renaissance. Mirbod and Atighehchi both signed the deed of
trust as members of Freeport Renaissance.
The documents were sent to the plaintiff on October 28, 2010. Prior to
funding the loan, the plaintiff responded via email that it needed personal guarantee
agreements from all the members of Freeport Renaissance. This response was sent
to Elyaszadeh and copied to Santos. Santos responded as follows: ‘Please be
advised that the provided Guaranty Agreement is a “Blanket” personal guarantee
with all three members guaranteeing the loan.’ Nonetheless, the plaintiff required
that Elyaszadeh sign a personal guarantee as an ‘individual.’ Thus, an additional
[SEGMENT 19]
guarantee agreement was drafted and signed by Elyaszadeh as an individual. The
Elyaszadeh guarantee defined the guarantor as Elyaszadeh, individually.
Additionally, as requested by the plaintiff, an addendum to the promissory note was
drafted and signed by Elyaszadeh as the managing member of Freeport
Renaissance.
On November 18, 2010, the loan was funded. The defendants defaulted on
the note by failing to pay all amounts due before the maturity date.
[B. The Trial Court Proceedings]
[1. The Complaint]
On February 13, 2013, the plaintiff filed a verified six-count complaint
against Freeport Renaissance, PCH, Mirbod, Atighehchi, Elyaszadeh[, and other
defendants that had interests or liens on the mortgaged property]. On October 29,
2013, the plaintiff filed an amended complaint to correct the legal description of
the subject property. In its complaint the plaintiff sought foreclosure of the
mortgage (count I) against all the defendants other than Elyaszadeh; collection on
the personal guaranties from PCH, Mirbod, Atighehchi, and Elyaszadeh (counts II
through V, respectively); and foreclosure on the security agreement against
Freeport Renaissance, PCH, Mirbod and Atighehchi (count VI).
[2. The Initial Motion for Summary Judgment and Judgment of Foreclosure]
[a. The Judgment of Foreclosure]
On February 5, 2015, the plaintiff filed a motion for summary judgment.
On May 18, 2015, a judgment of foreclosure was entered. The trial court found that
the total amount due to the plaintiff was in excess of $2.4 million plus interest,
costs, and attorney fees. The trial court entered a personal deficiency judgment
against Freeport Renaissance and PCH, in an amount to be determined at the time
of the confirmation of sale. The trial court also entered [judgments on counts I, II,
and VI against Freeport Renaissance, PCH, and the other defendants with interests
or liens on the property]. Per the agreement of the parties, count VI was dismissed
against Mirbod and Atighehchi. Elyaszadeh, Mirbod, and Atighehchi were reserved
the right to challenge the judgment as it applied to them. Mirbod later settled out of
court and count III was dismissed. Accordingly, count IV against Atighehchi and
count V against Elyaszadeh remained pending on the motion for summary
judgment and hearing was continued on those counts.
[b. The Evidence in Support of Summary Judgment]
In an August 4, 2016, discovery deposition, Elyaszadeh stated that he was
a licensed real estate broker in California. He was the owner and sole shareholder
of a company named E&E Mortgage Bankers, which provided financing for real
estate transactions. His wife was the sole member and manager of Sunrise
Financial, LLC. With respect to the loan from the plaintiff to Freeport Renaissance,
Sunrise Financial was paid a $30,000 loan origination fee and Mortgage Bankers
was compensated $1500 for preparation of the loan documents. Mortgage Bankers’
employee, Allen Santos, prepared all the loan documents. Elyaszadeh stated that he
discussed the terms of the loan with the other members of Freeport Renaissance
and they all agreed to the terms.
In a February 17, 2017, discovery deposition, Santos stated that his
supervisor at Mortgage Bankers was Elyaszadeh and everything Santos did,
including drafting documents, was reviewed by Elyaszadeh. Santos further stated
that, with regard to the Freeport Renaissance loan from the plaintiff, his
understanding was that he was supposed to draft documents such that all three
members of Freeport Renaissance personally guaranteed the loan.
In a September 29, 2016, discovery deposition, Atighehchi stated that she
had known Elyaszadeh for about 35 years because he was her father’s friend.
Elyaszadeh, Mirbod and she were all members of Freeport Renaissance. At some
point, Freeport Renaissance had to borrow money to pay taxes and other bills. At
that time, Elyaszadeh was managing Freeport Renaissance. Elyaszadeh negotiated
the loan from the plaintiff. She had never met or talked to the plaintiff and never
asked Elyaszadeh about the terms of the loan. Atighehchi acknowledged that she
had agreed to get a loan from the plaintiff for Freeport Renaissance. She did not
read the entire note before she signed it—she just looked at the first and last pages.
She did not know who drafted the note. She acknowledged that she signed the deed
of trust the same day as the note. She did not know who drafted it and did not review
the document before she signed it. She acknowledged that she signed the deed of
trust as a member of Freeport Renaissance. She also acknowledged that she signed
the Guaranty in her individual capacity but stated that she believed the guarantor
was Freeport Renaissance. She believed that the term ‘an individual’ next to her
signature referred to the fact that she was an individual member of Freeport
Renaissance. She stated that she never would have personally guaranteed the note.
In a July 18, 2016, video deposition, Behrouz Aframian testified that, prior
to the loan at issue in this case, he had negotiated two other loans with Elyaszadeh.
Both of those loans were personally guaranteed by Elyaszadeh even though
Elyaszadeh was not the borrower. Elyaszadeh did all the legal work and paperwork
on the two previous loans and received points from the borrower. Aframian did not
remember if he paid Elyaszadeh for those services. Relative to the loan related to
Freeport Renaissance, Elyaszadeh told him that the note would be personally
guaranteed by all three members of Freeport Renaissance. His understanding was
that this would be a personal loan to the three members of Freeport Renaissance.
He did not believe that he was loaning money to Freeport Renaissance. Aframian
testified that when he received the loan documents, he did not review them. He
relied on Elyaszadeh’s personal representations and believed he was receiving a
personal guarantee.
[3. The Cross-Motion for Summary Judgment and Trial Court’s Ruling]
On June 27, 2017, the plaintiff filed a brief in support of its motion for
summary judgment as to counts IV and V, seeking judgment on the personal
guaranties of Atighehchi and Elyaszadeh respectively. On July 3, 2017, Atighehchi
filed a cross motion for summary judgment on count IV. A hearing was held on the
motions on October 4, 2017. ***
On January 22, 2018, the trial court presented its decision in court. The trial
court found that the additional guarantee signed by Elyaszadeh as an individual and
naming him as the guarantor was specific and unambiguous. The trial court granted
the plaintiff’s motion for summary judgment against Elyaszadeh on count V. With
respect to Atighehchi, the trial court found that the Guaranty was ‘sloppy.’ The trial
court acknowledged that the plaintiff wanted a personal guarantee from all three
members of Freeport Renaissance, but found that it did not get it. The trial court
noted that Santos’ email stated that the guarantee was a ‘blanket personal guaranty
with all three members.’ The trial court found that the term ‘members’ was used to
guarantee the loan and it applied to Freeport Renaissance, not the members
individually. The trial court further found that the term ‘individual’ next to
Atighehchi’s signature on the Guaranty did not control the capacity in which the
document was signed. The trial court noted that the Guaranty listed Freeport
Renaissance as the guarantor and that Atighehchi was not listed anywhere in the
document as an individual. Further, the document referred only to a singular
guarantor, and did not use the plural ‘guarantors.’ The trial court thus granted
summary judgment on count IV in favor of Atighehchi ***. The plaintiff filed a
timely notice of appeal.” [CITATION], ¶¶ 2-
.
¶7 C. The Second District Appeal
¶8 On appeal, the Second District summarized plaintiff’s arguments as follows:
“[T]he plaintiff argues that the trial court erred in granting summary judgment in
favor of Atighehchi on count IV. The plaintiff argues that the Guaranty is
ambiguous and interpreting it to find that Freeport Renaissance was guaranteeing
its own debt is an absurd result. Further, the plaintiff argues that the uncontested
extrinsic evidence supports a conclusion that the parties intended that Atighehchi
would be personally liable on the Guaranty.” Id. ¶ 19.
The appellate court explained that, based on the agreement of the parties and the terms of the
Guaranty, California substantive law applied, but the court would be following Illinois procedural
law. [CITATION] ¶ 20.
¶9 The Second District concluded that “the trial court erred in granting summary
judgment in favor of Atighehchi because the Guaranty [was] ambiguous and the extrinsic evidence
- 10 - raise[d] genuine issues of material fact.” [CITATION] ¶ 24. In its analysis, the court wrote the following:
“First, the Guaranty is ambiguous on its face. While the Guaranty defines the
[SEGMENT 20]
guarantor as ‘Freeport Renaissance LLC,’ the signature block contains no reference
to Freeport Renaissance. Elyaszadeh signed as the manager of PCH and Mirbod
and Atighehchi each signed as ‘an individual.’ Thus, none of the signatures aligned
with the named Guarantor. Further, paragraph 19b of the Guaranty states that ‘the
term “Guarantor” shall be deemed to refer to any one or both of the parties
constituting Guarantor.’ This implies that there are two parties that are guarantors.
Further, paragraph 9 indicates that the Guaranty would be binding upon ‘the
executors, administrators, personal representatives, legatees, heirs, successors and
permitted assigns of Guarantor.’ This language indicates that the Guaranty is a
personal guaranty, which is at odds with Freeport Renaissance being a corporate
guarantor.
Additionally, a provisional examination of the extrinsic evidence also
reveals some ambiguity. The guarantor is defined in the Guaranty as Freeport
Renaissance, LLC. However, the Guaranty was executed along with other
instruments including a note, a deed of trust and a security agreement. The security
agreement named the guarantor as Freeport Renaissance but defined the guarantor
as ‘an individual whose residence is in Los Angeles County.’ Further, it was
seemingly absurd for the parties to execute a guaranty with Freeport Renaissance
as the guarantor since Freeport Renaissance was also the borrower on the
promissory note. Generally, a guarantor is a separate third party, not the borrower.
Finally, Atighehchi signed the deed of trust as a member of Freeport Renaissance
- 11 - and if the parties intended for the Guaranty to be a corporate guaranty, they could
have signed it the same way.
We thus turn to the extrinsic evidence to interpret the contract. If the
extrinsic evidence were not conflicting, summary judgment would be proper.
[CITATION.] However, the extrinsic evidence is conflicting and there are genuine
questions of material fact which preclude the entry of summary judgment for either
party. While Atighehchi argues that the parties’ intent was that the Guaranty serve
a corporate guaranty, the depositions of Santos and Aframian indicate that the
parties intended that it be a personal guarantee from all three members of Freeport
Renaissance. Further, while ambiguities in a contract should normally be construed
against the drafter, it is unclear whether Mortgage Bankers and Santos were drafting
the documents on behalf of the plaintiff, as in previous loan transactions, or whether
they were drafting the loan documents on behalf of Freeport Renaissance and its
members. If Santos and Mortgage Bankers were drafting the documents on behalf
of Freeport Renaissance, there is a question as to whether Santos was acting on
behalf of Atighehchi. In her deposition, Atighehchi stated that she did not authorize
Santos to act on her behalf, but the record also indicates that she acquiesced in
allowing Elyaszadeh to obtain the loan from the plaintiff on behalf of Freeport
Renaissance and to determine the terms of the loan. Because the Guaranty is
ambiguous and there are genuine questions of material fact, the trial court erred in
granting summary judgment in favor of Atighehchi.” [CITATION] ¶¶ 24-26.
¶ 10 The Second District reversed and remanded for further proceedings. [CITATION] ¶ 33.
¶ 11 D. The Bench Trial and Trial Court’s Ruling
- 12 - ¶ 12 In September 2022, the trial court conducted a bench trial on count IV of the
amended complaint. Although the majority of the evidence was consistent with the earlier
described deposition testimony, the parties presented some critical new evidence that responded
to and addressed the ambiguities and questions of fact identified by the Second District in is Rule
23 order. Similarly, the trial court relied heavily on that order in its written ruling, and its findings
primarily addressed the same ambiguities and questions of fact.
¶ 13 In February 2023, the trial court entered a written order entering judgment in favor
of Atighehchi and finding that plaintiff failed to meet its burden of proof to show that the parties
mutually intended for the Guaranty to personally bind Atighehchi. Because the court’s detailed
written judgment thoroughly explained (1) the relevant evidence that formed the basis for the
court’s factual findings and (2) the reasoning of the court’s ruling, we set forth the court’s order at
length.
“The defense argues and this Court agrees that the parameters of the Court’s
ability to analyze and interpret the Guaranty’s signature block is not limited to the
four corners of the document. Under Section 1642 of the California Civil Code,
‘Several contracts relating to the same matters, between the same parties, and made
as parts of substantially one transaction, are to be taken together.’ Cal. Civ. Code
§ 1642. This Court must also consider the other contracts relating to this loan
transaction between Plaintiff and Freeport Renaissance: the Promissory Note, the
Security Agreement, the Environmental Indemnity Agreement, and the Deed of
Trust.
In this case, the parties stated objective intent is in evidentiary conflict. In
his deposition and at trial, Plaintiff [(Aframian)] stated he would not have lent the
- 13 - money without a personal guarantee. He asserted he always requires a personal
guaranty to lend money. At trial, Defendant [(Atighehchi)] under oath stated she
would never have borrowed the money from Plaintiff if a personal guarantee was
required. Obviously, in accordance with California law, the subjective intent of one
of the parties would not be enough to carry the day.
Additionally, the evidence surrounding the drafting of the loan documents
(and for which party the doctrine of contra proferentem applies because of those
ambiguities) is in dispute. Because of these factual disputes, in this case, the Court
may also consider extrinsic evidence beyond the language of the related
transactional documents.
It is important to detail the facts as they pertain to the subject property and
the specific loan at issue. Plaintiff, though a jeweler by trade, has acted as a lender
in many other loan transactions. In most of these transactions, Elyaszadeh has acted
as the go between. When parties seeking a loan through non-conventional means
are in search of a lender, Elyaszadeh establishes a connection between those
potential borrowers and Plaintiff. This relationship between those parties is not new
and has been in existence for many years.
These types of financially non-invasive loan transactions were referred to
in this case as ‘hard money’ loans. Such loans, though not rising to the level of
‘loan sharking’ where exorbitant interest rates are attached, do carry higher rates of
interest than commercial loans, but, more importantly, they do not fall under the
typical commercial lending institutions governance where standard and customary
security requirements are necessary. For example, for approval and acceptance by
- 14 - a ‘hard money’ lender, an estoppel certificate is not necessary. In this case,
Defendant was not even asked to provide a birth certificate, credit report, financial
statement or driver’s license.
The evidence in this case also showed that when Plaintiff would make ‘hard
money’ loans and Elyaszadeh was involved, it was common practice for Plaintiff
to have Elyaszadeh vouch for the borrowers by having him sign his own personal
guaranty in Plaintiff’s favor. Defendant highlighted this practice through a prior
‘hard money’ loan transaction that occurred on October 30, 2009, in which Plaintiff
loaned $800,000 to Del Capital Development LLC, Albert Delshad and Barbara
Jane Delshad. See Defendant’s Exhibit 14 (Del Capital/Delshad Promissory Note
and Security Agreement). This Note was supported by three personal guarantees: a
personal guaranty by Shahram Elyaszadeh (Exhibit 16), a personal guaranty by
Barbara Jane Delshad (Exhibit 17), and a personal guaranty of Albert Delshad
(Exhibit 18).
Based on the history of their ongoing business relationship, Elyaszadeh
would normally be compensated for helping establish new connections for ‘hard
money’ loans and drafting the loan documents that Plaintiff required. In the case at
hand, Elyaszadeh was paid $30,000.00 as a loan origination fee for bringing the
parties together and an additional $1,500.00 for loan document preparation. As
Defendant points out, Defense Exhibits 16, 17 and 18 involve the abovementioned
Del Capital loan documents that include guaranty agreements substantially similar
to the template language used in the Freeport Renaissance Guaranty and Elyaszadeh
Guaranty. It should be obvious that Elyaszadeh, or agents within his control, were
- 15 - ```
creating loan documents from their own word processing applications by deleting
old borrowers’ names and adding new borrowers’ names and cutting and pasting
paragraphs and tailoring clauses that fit each particular loan. Defendant’s Exhibit
#7 is an example of that practice where in paragraph A., Albert Delshad (from
[CITATION]) is incorrectly named as the Borrower.
In accordance with the history of the case as detailed by the [CITATION]
in its Rule 23 Order, in 2010, Elyaszadeh approached Plaintiff to obtain a loan for
the Freeport Renaissance, LLC owned property located in Freeport, Illinois.
[SEGMENT 21]
Elyaszadeh, through another company owned by him, E&E Mortgage Bankers,
LLC, had his employee, Allen Santos, prepare the loan documents. Santos prepared
four loan documents: a promissory note, a security agreement, a deed of trust, and
a guarantee. As stated earlier, these loan documents were substantially similar to
the Del Capital loan documents.
[(The trial court described the Guaranty and loan documents consistent with
the [CITATION].)]
***
Typically, ambiguities in a contract should normally be construed against
the drafter. The evidence in this case is unclear whether Mortgage Bankers and
Santos were drafting the loan documents on behalf of Plaintiff, as in previous loan
transactions, or whether they were drafting the loan documents on behalf of
Freeport Renaissance and its members, including Defendant. If Santos and
Mortgage Bankers were drafting the documents on behalf of Freeport Renaissance,
there is a question as to whether Santos was acting on behalf of Defendant.
- 16 -
``` Defendant stated that she did not authorize Santos to act on her behalf, but the
record also indicates that she allowed Elyaszadeh to obtain the loan from Plaintiff
on behalf of Freeport Renaissance and to determine the terms of the loan.
The email communications between Plaintiff and Santos, who was not an
attorney and employed by Elyaszadeh at the time the loan documents were
prepared, are directives from Plaintiff. Defendant had known Elyaszadeh for a
number of years prior to the origination of the loan at issue through his relationship
with her father. But it was not shown at trial that she, in any way, had a hand in the
preparation of the loan documents. The process used in the matter before the Court
was nearly indistinguishable from [the] process used in many prior transactions that
involved Plaintiff and Elyaszadeh, but for the substitutions of new names and
amounts and, this was Defendant’s first loan ever consummated with Plaintiff.
These loan documents were used on multiple occasions previously by Plaintiff and
Defendant had only seen them once.
Plaintiff had testified he did not read the documents, but Defendant, an
experienced Beverly Hills, California Real Estate professional, also had said she
did not read the loan documents before she signed them—she just looked at the first
and last pages. Defendant did not know who drafted the note. She acknowledged
that she signed the deed of trust the same day as the note. She did not know who
drafted it and did not review that document before she signed it. She acknowledged
that she signed the deed of trust as a member of Freeport Renaissance. She also
acknowledged that she signed the Guaranty in her individual capacity but stated
that she believed the guarantor was Freeport Renaissance. She believed that the
- 17 - term ‘an individual’ next to her signature referred to the fact that she was an
individual member of Freeport Renaissance. Again, she stated that she never would
have personally guaranteed the note.
***
This portion of the Appellate Court ruling and directions bears repeating:
A court’s paramount consideration in construing a contract is the parties’
objective intent, as evidenced by the plain language of the contract, rather
than the subjective intent of one of the parties (emphasis added).
The extrinsic evidence showed that it was not just one of the parties’ subjective
intent, but at a minimum two, Defendant and Mirbod. Again, Elyaszadeh had stated
he informed Plaintiff that Defendant and Mirbod would not execute personal
guarantees. And, Plaintiff required Elyaszadeh to execute his own personal
guaranty that identified Elyaszadeh as the guarantor and borrower.
The Court agrees with the Defendant that Plaintiff’s lack of diligence and
overt carelessness caused what uncertainty may continue to exist in this transaction.
Again, Plaintiff testified that he did not even read the substance of the documents
because they were ‘too heavy.’ Plaintiff testified that he neither spoke to Defendant
directly nor asked for any of her personal financial statements to demonstrate
creditworthiness. Plaintiff testified he only read two things of a document: the title
and the signature. Therefore, the totality of the evidence did not show by a
preponderance of the evidence standard, that there was a meeting of the minds
between Plaintiff and Defendant and that there was a mutual intent for Defendant
to personally guarantee the underlying note at the time the contract was formed.
- 18 - Defendant correctly asserts that: [t]he Guaranty explicitly identifies the
Guarantor as ‘FREEPORT RENAISSANCE LLC, a Nevada Limited Company.’
This identification begins in the second line on the first page of the document.
‘Freeport Renaissance’ is highlighted in bold, capitalized font, to set it apart from
the other language in the document. In bold, capitalized font, the Guaranty also
identifies the Borrower as ‘FREEPORT RENAISSANCE LLC, a Nevada Limited
Company.’ This identification of the Borrower immediately occurs in the second
paragraph on the first page of the document, approximately one (1) inch below the
identification of the Guarantor. References to Freeport Renaissance as the
Guarantor appear not once, not twice, but fifteen (15) times throughout the
agreement. Not only does the Guaranty define Freeport Renaissance as Guarantor
at the outset, the document labels itself the ‘Freeport Renaissance LLC Guaranty’
prominently at the bottom of every single page. In the ‘Notices’ section in
paragraph 7, the Guarantor is once again identified as ‘FREEPORT
RENAISSANCE LLC,’ in bold, capitalized font.
The Appellate Court provided guidance on this issue in that the Guaranty
was executed along with other instruments including a note, a deed of trust and a
security agreement. The security agreement named the guarantor as Freeport
Renaissance but defined the guarantor as ‘an individual whose residence is in Los
Angeles County.’ The extrinsic evidence at trial identified more than one party or
individual as having residence in California. Also, the identical language was
included in the Del Capital documents and the only guarantor appearing on both
documents was Elyaszadeh.
- 19 - Additionally, the Appellate Court opined that: it was seemingly absurd for
the parties to execute a guaranty with Freeport Renaissance as the guarantor since
Freeport Renaissance was also the borrower on the promissory note. Generally, a
guarantor is a separate third party, not the borrower. Finally, Defendant signed the
deed of trust as a member of Freeport Renaissance and if the parties intended for
the Guaranty to be a corporate guaranty, they could have signed it the same way.
Defense argues: [w]hile the Deed of Trust does contain different language;
this Court cannot ignore the manner in which ‘an individual’ follows Defendant’s
name in the Promissory Note, the Security Agreement, and Environmental
Indemnity Agreement. In those documents, there is no dispute that she signed her
name in her capacity as an individual member on behalf of Freeport Renaissance.
So even with the discrepancy in the Deed, Defendant urges the Court to interpret
‘an individual’ following Defendant’s name in the Guaranty as signifying her
capacity as an individual member on behalf of Freeport Renaissance, just as with
the other related transactional documents.
***
*** Even though having [a] corporate guarantee instead of [a] personal
guaranty may seem absurd, the extrinsic evidence introduced at trial did give
credence to the practice being common in the State of California.
At trial Attorney Wallace testified (remotely) that in California it is not
uncommon that lenders require borrowers to also guarantee the underlying
indebtedness. When the borrower and guarantor are the same, or the same in
principle, these are referred to as ‘sham guarantees’ by California courts. Wallace
- 20 - explained that ‘hard money’ lenders like Plaintiff require borrowers to not only sign
the notes, but also provide guaranty agreements. Additionally, he opined that ‘hard
money’ lenders do not fully understand that doing so amounts to a redundant
guaranty agreement. Per Wallace, this is a customary practice in California.
Also, in applying fundamental California principles, ‘A contract must
receive such an interpretation as will make it lawful, operative, definite, reasonable,
and capable of being carried into effect, if it can be done without violating the
intention of the parties.’ Cal. Civ. Code § 1643. In this case, Plaintiff has failed to
prove by a preponderance of the evidence that the intent of the parties was mutually
agreed to.
Therefore, it is this Court’s opinion based on the totality of the evidence,
that Defendant had no hand in the creation of the loan documents. Furthermore, she
did not ask they be altered in any way and she did nothing more than sign her name
once those documents were presented to her. Plaintiff, on the other hand, had
engaged in a long-term mutually beneficial business relationship with Elyaszadeh
that pre-existed the $600,000.00 loan at issue. Loan documents (nearly identical to
this case’s boilerplate forms) had been created and used for the joint benefit of
Plaintiff and Elyaszadeh, and because Plaintiff was or should have been very
familiar with the loan documents and since he used his authority to demand changes
to these loan documents: that [it] was Plaintiff and not Defendant who took on the
role of the drafter. And, in accordance with application of California law, any
ambiguity in a contract should be construed against the drafter. [CITATION.]
Finally, ‘[w]ords in a contract which are wholly inconsistent with its nature,
[SEGMENT 22]
- 21 - or with the main intention of the parties, are to be rejected.’ Cal. Civ. Code § 1653.
The operative words here are ‘guarantor’ and ‘an individual.’ The Guaranty
executed by Defendant and signed by her as ‘an individual’, was approved and
accepted by Plaintiff for purposes of funding this $600,000.00 loan. The Guarantor
was identified numerous times throughout the document, solely, specifically and
unequivocally as Freeport Renaissance LLC. In addition, paragraph 9 of the
Guaranty that indicates that the Guaranty would be binding upon ‘the executors,
administrators, personal representatives, legatees, heirs, successors and permitted
assigns of Guarantor.’ The Appellate Court previously opined, for summary
judgment purposes, that this language indicates that the Guaranty is a personal
guaranty, which is at odds with Freeport Renaissance being a corporate guarantor.
But, there is additional language in the Guaranty that provides much needed clarity
and in the eyes of this Court, settles the question.
As previously stated, paragraph 21 of the Guaranty states: [e]ach individual
whose signature appears below represents and warrants to the other party that such
individual has the full power, authority and legal right to execute this Guaranty for
himself or herself (and/or for any legal entity on behalf of which he or she signs)
and to perform all obligations on his, her or its part under the Guaranty. This
language, however absurd in this context in Illinois, allowed Defendant to properly
sign as ‘an individual’ and thus bind the legal entity, Freeport Renaissance LLC, to
its terms. This contractual act was established at trial as being a common practice
in California, and therefore not so absurd at the time of the formation of the
contract.” (Emphases in original.)
- 22 - ¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 Plaintiff appeals, arguing that (1) the trial court erred by finding the Guaranty and
Atighehchi’s signature as “an individual” was ambiguous under California law and (2) the court’s
conclusion that the parties intended Atighehchi to sign as a member of Freeport Renaissance was
against the manifest weight of the evidence. We disagree.
¶ 17 A. Plaintiff’s New Arguments Are Forfeited
¶ 18 As an initial matter, we note that plaintiff argues on appeal that the trial court erred
by finding that the guaranty was ambiguous because various provisions of the California
Commercial Code required it to presume that Atighehchi’s signature as “an individual” was an
“anomalous indorsement,” making her an “accommodation party” that is personally liable on both
the note and the Guaranty. Atighehchi responds that these arguments were not raised in the trial
court or at any point in the prior litigation and are therefore forfeited. We agree with Atighehchi.
¶ 19 In essence, plaintiff argues that certain statutory provisions control how the trial
court, and this court, should construe Atighehchi’s signature on the loan documents. However,
plaintiff did not cite these statutes either in the trial court or to the Second District during the prior
appeal. Instead, in its written closing argument to the trial court, plaintiff conceded that the
guaranty was ambiguous as the Second District concluded. Accordingly, a litany of legal doctrines
bar plaintiff from raising these new arguments for the first time in this appeal, such as the law-of-
the-case doctrine, acquiescence, invited error, and forfeiture.
¶ 20 Most simply, we conclude that plaintiff forfeited these arguments by failing to raise
them before the trial court during the bench trial. Because it would be unfair to Atighehchi and the
trial court to consider these new arguments for the first time in this appeal, we hold plaintiff to that
- 23 - forfeiture and consider only whether the trial court’s findings were against the manifest weight of
the evidence.
¶ 21 B. Whether the Trial Court’s Findings Were Against
the Manifest Weight of the Evidence
¶ 22 Before proceeding to the analysis of the trial court’s judgment, we note that plaintiff
mischaracterizes the trial court’s ruling when it asserts that the court found that the parties intended
for Atighehchi to sign in a representative capacity as part of a corporate guarantee and that she did,
in fact, sign in such a capacity. To the contrary, the trial court ruled that plaintiff failed to meet its
burden of proof that the parties mutually intended the Guaranty to be a personal guaranty. That is,
the court did not make an affirmative finding regarding what the parties intended but instead
concluded that plaintiff failed to meet its burden of proof to recover against Atighehchi on the
Guaranty.
¶ 23
. The Applicable Law
¶ 24 Throughout this case, the parties have agreed that Illinois law governs all
procedural matters and California law applies to all the substantive legal issues.
¶ 25 a. The Applicable Illinois Procedural Law and Standard of Review
¶ 26 This case fundamentally involves contract interpretation, given that the central
issue is whether the parties intended for Atighehchi to be personally liable under the terms of the
Guaranty, which she signed as “an individual.” The interpretation of contracts presents an issue of
law that appellate courts review de novo. [CITATION], ¶ 15, 186 N.E.3d 393.
¶ 27 However, the Second District previously held that the Guaranty was ambiguous
both on its face and after considering the limited extrinsic evidence available at summary
- 24 - judgment. On remand, the trial court conducted a bench trial to consider all the extrinsic evidence,
as mandated by the Second District’s order, to determine the meaning of the contract and the
intention of the parties. Accordingly, the applicable standard of review for this appeal is whether
the trial court’s factual findings were against the manifest weight of the evidence. See [CITATION], 2015 IL App (1st) 123753, ¶ 33, 30 N.E.3d 670 (“The interpretation of contracts
generally is subject to a de novo standard of review, but the factual findings that inform this
interpretation are given deference on review and are to be reversed only where they are against the
manifest weight of the evidence.”); see also [CITATION], 2023
IL 129067, ¶ 31, 226 N.E.3d 1266 (explaining that de novo review is appropriate when interpreting
an arbitration agreement “where there was no evidentiary hearing or findings of fact”).
¶ 28 Generally, the standard of review following a bench trial is whether the trial court’s
order or judgment is against the manifest weight of the evidence. [CITATION], 2011 IL 111871, ¶ 12, 965 N.E.2d 393. “A judgment is against the manifest weight of
the evidence only when the findings appear to be unreasonable, arbitrary, or not based on evidence,
or when an opposite conclusion is apparent.” [CITATION], 2016 IL 119181, ¶ 23,
50 N.E.3d 643. “The manifest weight of the evidence standard affords great deference to the trial
court because the trial court is in a superior position to determine and weigh the credibility of the
witnesses, observe witnesses’ demeanor, and resolve conflicts in their testimony.” [CITATION], 2017 IL App (1st) 161765, ¶ 59, 82 N.E.3d 763. The appellate court therefore
does not substitute its judgment for that of the trial court and will not overturn a trial court’s
findings merely because it does not agree with the lower court or because it might have reached a
different conclusion had it been the trier of fact. [CITATION], 2014 IL
App (4th) 130901, ¶ 38, 14 N.E.3d 1245. Accordingly, the trial court’s judgment will be affirmed
- 25 - provided the record contains any evidence supporting it. [CITATION]
¶ 29 b. The Applicable California Substantive Law
¶ 30 In its written order, the trial court heavily—and properly—relied on the Second
District’s statements of California law from the prior appeal, and we do the same. See [CITATION]
¶ 31 The Second District summarized the applicable law as follows:
“Under California law, the fundamental goal of contract interpretation is to
give effect to the mutual intent of the parties. [CITATION]
(Cal. 2012)) and if the contractual language is clear and explicit, and does not
involve an absurdity, it governs (Cal. Civ. Code § 1638). The language in a contract
must be construed in the context of the instrument as a whole and in the
circumstances of the case. [CITATION] A court’s paramount
consideration in construing a contract is the parties’ objective intent, as evidenced
by the plain language of the contract, rather than the subjective intent of one of the
parties. [CITATION] Any ambiguity
in a contract should be construed against the drafter. [CITATION]
- 26 - If the meaning of the contract language is in dispute, the trial court may
provisionally consider extrinsic evidence to determine the parties’ intent only
where it is relevant to prove a meaning to which the language is reasonably
[SEGMENT 23]
susceptible. [CITATION]. If the court determines that the
language is reasonably susceptible to more than one interpretation, the contract is
ambiguous and the court must determine what construction is to be placed on the
ambiguous language by applying the standard rules of interpretation. [CITATION].
The extrinsic evidence is then admitted to aid in interpreting the contract.
[CITATION].”
¶ 32
. This Case
¶ 33 a. The Alleged Absurdity of a Redundant Corporate Guarantee
¶ 34 Plaintiff argues that the trial court’s decision was erroneous because accepting
Atichehchi’s interpretation of the agreement creates the absurd result that Freeport Renaissance
executed a meaningless guarantee when it was already directly liable on the note. Regarding this
issue, the trial court heard competing experts testify about the standard practices of lenders in
California and the prevalence of “sham guarantees.” The court explicitly found Wallace,
Atichehchi’s expert, credible and persuasive on those issues. The court noted that the Second
District suggested that it would be absurd to have a corporate guarantee when the corporation was
already liable on the note but concluded that the evidence presented at trial—specifically,
Wallace’s testimony about the standard practices of “hard money” lenders in California, who
- 27 - frequently require parties to execute redundant guarantees, mistakenly believing that such
guarantees give them more security on the loan—adequately provided a rational explanation for a
seemingly irrational agreement.
¶ 35 In addition, the trial court relied on evidence of past loan transactions between
Elyaszadeh and Aframian to demonstrate a contrast between the guaranties in those transactions
with the one at issue in this case. In particular, the court noted that in earlier transactions that
Elyaszadeh drafted for Aframian, the guaranties explicitly defined the guarantors by naming the
corporate entities and the individuals who were guaranteeing the loan, specifically identifying
those persons as individuals. By contrast, Atighehchi’s name does not appear anywhere in any of
the Freeport Renaissance loan documents, including the Guaranty. Instead, the loan documents
and the Guaranty repeatedly and conspicuously identified the guarantor as Freeport Renaissance
“a California limited liability company.”
¶ 36 This court has frequently recognized that when the trial court, after being presented
with conflicting testimony, accepts and credits one version of events and rejects the other, we are
at the height of our deference to those findings. [CITATION]; see [CITATION]. Here, the trial court
heard conflicting evidence from two experts about whether redundant corporate guaranties were
common in California for “hard money” loans and accepted Wallace’s testimony as true in its
order. Accordingly, we defer to the trial court’s credibility determination.
¶ 37 b. The Drafter of the Guaranty Agreement
¶ 38 As the Second District noted, resolving the ambiguity of whether the Guaranty
Agreement was intended to personally bind Atighehchi depended, in part, on determining which
party drafted the Guaranty so the terms could be construed against the drafter. On appeal, plaintiff
- 28 - argues that the trial court erred by finding that Elyaszadeh drafted the documents on behalf of
Aframian and not on behalf of Atighehchi or Freeport Renaissance. We disagree.
¶ 39 In its written order, the trial court relied heavily upon the extrinsic evidence of prior
loan transactions involving Elyaszadeh and plaintiff. The court primarily considered two types of
evidence. First, the court explained the testimony describing the regular course of conduct of how
Elyaszadeh connected borrowers with plaintiff, received an origination fee, drafted the documents,
and received a fee for drafting the documents. The court noted that the Freeport Renaissance loan
was drafted and consummated in the same manner, including Elyaszadeh’s receiving a fee for both
originating the loan and drafting the loan documents, which fees were paid out of the proceeds of
the loan.
¶ 40 Second, the trial court examined a 2009 transaction involving Del Capital and
plaintiff, which had guaranties that used nearly identical language but clearly listed the individual
members of Del Capital as guarantors within the express terms of the guarantee. The court noted
that the only guarantor appearing on both documents was Elyaszadeh.
¶ 41 Relying on these two forms of evidence, both of which established a customary
course of conduct between plaintiff and Elyaszadeh, the trial court concluded that Elyaszadeh
similarly drafted the Freeport Renaissance loan documents in this case on plaintiff’s behalf.
¶ 42 c. The Burden of Proof at Trial
¶ 43 In its order, the trial court made clear that plaintiff had failed to meet its burden to
persuade the trial court that the guaranty was mutually intended by the parties to be a personal
guarantee, writing, “At trial, the burden was on Plaintiff to prove by a preponderance of the
evidence that the parties mutually intended for Defendant to personally guarantee the $600,000.00
loan.” The court repeatedly stated, explicitly, that the parties failed to present all of the evidence
- 29 - available or evidence that would have added clarity to resolving the competing interpretations
offered by the parties. The court concluded that “the totality of the evidence did not show by a
preponderance of the evidence standard, that there was a meeting of the minds between Plaintiff
and Defendant and that there was a mutual intent for Defendant to personally guarantee the
underlying note at the time the contract was formed.”
¶ 44 The trial court expressed dissatisfaction with both Aframian and Atighehchi,
lamenting their admissions at trial that, although they were both experienced and sophisticated
actors in real estate transactions, neither one of them read more than the first or last page of what
they were signing or put more than a cursory effort into the deal. They paid little attention to
details, relied on Elyaszadeh instead of consulting their own lawyers, and blindly executed
documents to finalize the loan without bothering to ask questions or know the specifics or details
of what they were agreeing to.
¶ 45 We find the Illinois Supreme Court’s reasoning in [CITATION], helpful. In [CITATION], the supreme court examined
whether a jury entered legally inconsistent verdicts when they found against both drivers, who
were suing each other over a two-car accident. Id. at 625-26. Each driver claimed the other driver
negligently caused the accident and sought damages, and the parties both agreed that the accident
was entirely caused by one of the drivers’ negligent actions. Id. at 626. The supreme court upheld
the jury’s verdicts and rejected the parties’ claims that one party had to be liable. Id. at 647. The
court explained as follows:
“Even though it is clear in the present case that 100% of the responsibility for the
accident must rest, in some unknown proportion, upon either or both of the parties,
it is still possible that the jury found the evidence ‘so conflicting, inconclusive, and
- 30 - unsatisfactory that it simply could not determine from the evidence presented’
[CITATION], whether Redmond was negligent and, if so, to what degree, and whether
Socha was negligent and, if so, to what degree.” Id.
¶ 46 The same reasoning applies here. Although logic dictates that the Guaranty was
either solely a corporate guaranty, a personal guaranty, or both, the trial court was not required to
make a conclusive determination in the absence of sufficient evidence from plaintiff. In other
words, plaintiff, as the party seeking to hold Atighehchi personally liable on the Guaranty, was
required to present adequate evidence to satisfy its burden of proof that the Guaranty bound
Atighehchi personally, thereby entitling plaintiff to a deficiency judgment.
¶ 47 The trial court, after considering all of the evidence, was so dissatisfied with the
evidence presented that it essentially determined that neither party was able to prove that its
interpretation of the Guaranty was correct. For example, the court rejected Atighehchi’s claim that
the deed of trust was fraudulently amended but did point out that the parties had engaged in
improper conduct pertaining to the case and accepted that there was clearly more evidence
available than what the parties presented. Specifically, the court found that “some of the other
improper actions of the parties (covert meetings and phone calls attempting to alter/slant trial
testimony and the like) do give rise to at a minimum a consideration that there was additional
evidence not brought to light at trial.”
¶ 48 Given that the trial court was (1) convinced that the parties had additional evidence
they did not present at trial and (2) dissatisfied with both Aframian and Atighehchi and skeptical
of their testimony, the court was entirely justified to conclude that the evidence presented at trial
was insufficient to resolve the ambiguities presented by the plain language of the Guaranty and
the conflicting extrinsic evidence offered by the parties.
- 31 - ¶ 49 Once the Second District found that the Guaranty was ambiguous on its face and
that the extrinsic evidence available at summary judgment was also ambiguous, plaintiff, as the
party bearing the burden of proof, was obligated to resolve those ambiguities at trial to succeed on
its claim. Critically, in the prior appeal, plaintiff argued that the Guaranty and the extrinsic
evidence presented at summary judgment demonstrated that the Guaranty was unambiguous that
Atighehchi was personally liable. At summary judgment, the court is required to look at the
[SEGMENT 24]
evidence in the light most favorable to the nonmovant. The Second District, after considering the
evidence presented at summary judgment in the light most favorable to each party, held that neither
party had demonstrated that the record was clear and free from doubt that one party was entitled
to judgment as a matter of law.
¶ 50 At trial, the trial court was not required to look at the evidence in favor of either
party or draw inferences in either party’s favor. Instead, the court was a free agent and could accept
or reject the evidence presented as it wished, so long as it did not do so arbitrarily or unreasonably.
Nonetheless, all of the arguments plaintiff raises on appeal pertain to how the trial court could have
viewed the evidence in the plaintiff’s favor. We note that had the court done so, given our
deferential standard of review, it would not be at all surprising for this court to similarly conclude
that a ruling in plaintiff’s favor was not against the manifest weight of the evidence.
¶ 51 Accordingly, we conclude that the trial court’s judgment was not against the
manifest weight of the evidence.
¶ 52 III. CONCLUSION
¶ 53 For the reasons stated, we affirm the trial court’s judgment.
¶ 54 Affirmed.
- 32 -
NOTICE [CITATION]
This Order was filed under
FILED
Supreme Court Rule 23 and is March 29, 2024
NOS. 4-23-1069, 4-23-1197 cons.
not precedent except in the Carla Bender
limited circumstances allowed
th District Appellate
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DON J. RHEINHART, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Knox County
TIMOTHY ROY LOVING; LOVING CAPITAL ) No. 23LA6
MANAGEMENT, LLC d/b/a Preservation Wealth )
Management, LLC and/or Preservation Financial )
Management, LLC; KURE ADVISORY, LLC; and )
TRUADVICE, LLC, )
Defendants )
)
(Timothy Roy Loving; Loving Capital Management, )
LLC d/b/a Preservation Wealth Management, LLC and/or ) Honorable
Preservation Financial Management, LLC; and ) William A. Rasmussen,
TruAdvice, LLC, Defendants-Appellants). ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Justices Knecht and Vancil concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed an order denying defendants’ motions to compel
arbitration where plaintiff’s claims fell within the scope of an agreement’s
arbitration provisions.
¶2 Plaintiff, Don J. Rheinhart, filed this action alleging negligence and breach of
fiduciary duties against defendants, Timothy Roy Loving and the various entities associated with
him, including Loving Capital Management, LLC (LCM), Kure Advisory, LLC (Kure), and
TruAdvice, LLC (TruAdvice). Plaintiff voluntarily dismissed Kure from the action. Defendants
Loving, LCM, and TruAdvice moved to compel arbitration of plaintiff’s claims. The trial court declined to compel arbitration. [CITATION] appeal. For the following reasons,
we reverse and remand with directions to stay this action and compel arbitration.
¶3 I. BACKGROUND
¶4 In March 2023, plaintiff filed a complaint alleging as follows. He had an Individual
Retirement Account (IRA) with T. Rowe Price. At some point, he hired Loving, an investment
adviser, to help manage this IRA. In early March 2020, the value of plaintiff’s IRA began to drop
sharply due to a market downturn. Plaintiff and Loving discussed promptly moving plaintiff’s
assets into a stable account to protect them from further market fluctuations. Loving also advised
plaintiff to roll his assets into an account with TD Ameritrade. On March 6, 2020, Loving directed
his assistant to call T. Rowe Price with plaintiff to execute this transfer of assets. During that call,
the assistant did not request for plaintiff’s assets to be liquidated pending the transfer. The assets
were ultimately transferred to a TD Ameritrade account in two transactions, on March 24 and
March 30, 2020. During the time it took to complete the transfer, the value of plaintiff’s
investments decreased significantly. On July 14, 2020, plaintiff, Loving, and Loving’s assistant
called T. Rowe Price. During that call, Loving questioned why T. Rowe Price had not liquidated
or sold plaintiff’s assets on March 6, 2020. A representative of T. Rowe Price responded that T.
Rowe Price had not received a sale or liquidation order. Plaintiff sought to recover his losses from
Loving and the entities that employed him under theories of negligence and breach of fiduciary
duties.
¶5 There is no dispute that on March 31, 2020, plaintiff signed a document titled
“TruAdvice, LLC Investment Management Agreement” (agreement). Loving also signed the
agreement in his capacity as “Investment Adviser Representative.” Plaintiff was designated as the
“Client” in the agreement, and TruAdvice was the “Adviser.” Section 17 of the agreement
contained provisions regarding binding arbitration. The first sentence of this section provided that
“Client agrees with Adviser to resolve any and all disagreements by final and binding arbitration.”
The agreement then listed “Important Disclosures” about the nature of binding arbitration,
including that the parties were “each waiving [their] respective rights to seek remedies in court,
including the right to a jury trial.” (Emphasis in original.) The agreement continued that, except
as it would be void under “applicable law” (emphasis in original):
“Client agree [sic] with Adviser that *** ALL CLAIMS OR CONTROVERSIES,
AND ANY RELATED ISSUES, which may arise at any time between Adviser
(including Adviser’s representatives, members, managers, officers, employees, and
agents) concerning any investment advice, recommendation, or exercise of limited
discretionary authority with respect to any subject matter; any transaction or order;
the conduct of our representatives, members, managers, officers, employees, and
agents; the construction, performance, or breach of this or any other agreement
between you and us, whether entered into prior to, on, or subsequent to the date of
this Agreement; the breach of any common law or statutory duty; or the violation
of any federal or state law of any nature SHALL BE RESOLVED BY BINDING
ARBITRATION RATHER THAN BY A LAWSUIT IN A COURT OF LAW OR
EQUITY.” (Emphases in original.)
The agreement further indicated that “[a]ny arbitration pursuant to this Agreement shall be
conducted in accordance with, and governed by, a mutually agreeable arbitration forum, but, in
the absence of such agreement, then the American Arbitration Association and its Code of
Arbitration Procedure.” The agreement specified it would be “governed by and construed in
accordance with the laws of the State of Florida without regard for conflict of laws principles.”
¶6 Invoking section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS
5/2-619(a)(9) (West 2022)), Loving and LCM moved to compel arbitration and dismiss the
complaint, or alternatively, to stay the claims pending arbitration. Loving and LCM indicated that
their motion was made pursuant to both the United States Arbitration Act, as amended, most
commonly referred to as the Federal Arbitration Act (9 U.S.C. § 1 et seq. (2018)), and Illinois’s
Uniform Arbitration Act (710 ILCS 5/1 et seq. (West 2022)). Loving and LCM contended that
plaintiff’s claims fell within the scope of the agreement’s arbitration provisions. TruAdvice filed
a separate motion arguing that the trial court should stay the proceedings pending arbitration. As
an alternative to arbitration, TruAdvice also sought to dismiss the action against it pursuant to
section 2-619 of the Code based on the alleged lack of substantive merit of plaintiff’s claims.
Specifically, TruAdvice contended it owed no fiduciary duty to plaintiff before the agreement was
executed on March 31, 2020, and that plaintiff’s negligence claims were barred by the economic
loss doctrine. Loving and LCM later sought to dismiss the complaint based on similar substantive
issues to those raised by TruAdvice.
¶7 Plaintiff responded that Loving and LCM were not parties to the agreement, so they
lacked standing to enforce arbitration. Plaintiff also argued that the agreement’s arbitration
provisions did not apply to his claims, which arose before the agreement was executed. On that
point, plaintiff focused on the language in the arbitration provisions requiring arbitration of claims,
controversies, and related issues “which may arise.” Plaintiff submitted that this quoted language
was “plainly forward-looking, applying to claims or controversies that ‘may arise’ subsequent to
the execution of the Agreement.” Addressing other language in the agreement requiring arbitration
of claims, controversies, and related issues concerning “the construction, performance, or breach
of this or any other agreement between you and us, whether entered into prior to, on, or subsequent
to the date of this Agreement,” plaintiff maintained that (1) defendants did not contend that
[SEGMENT 25]
plaintiff had any prior agreements with them and (2) plaintiff was not alleging a breach of the
March 31, 2020, agreement. Additionally, plaintiff opposed the arguments directed to the
substantive merits of his claims.
¶8 On September 20, 2023, the trial court held a nonevidentiary hearing on the motions
filed by Loving, LCM, and TruAdvice. At this hearing, plaintiff’s counsel conceded that Loving
had standing as a third-party beneficiary to rely on the arbitration provisions of the agreement. The
court declined to compel arbitration. Reasoning that the agreement was ambiguous as to whether
its arbitration provisions applied to events that occurred before the parties executed the agreement,
the court construed the ambiguity against the drafter (TruAdvice). The court then addressed
Loving’s, LCM’s and TruAdvice’s arguments regarding the substantive merits of plaintiff’s
claims. The court denied all pending motions. On September 28, 2023, the court signed a written
order documenting its rulings.
¶9 On October 16, 2023, Loving and LCM filed a notice of appeal from the portion of
the September 28, 2023, order denying their motion to compel arbitration. That appeal was
docketed in this court as No. [CITATION]. On October 30, 2023, TruAdvice filed a notice of appeal
from the portion of the September 28, 2023, order denying the motion to compel arbitration.
(Thirty days following September 28 was Saturday, October 28; October 30 was the following
Monday. Thus, TruAdvice’s notice of appeal was timely.) That appeal was docketed in this court
as No. [CITATION]. We granted appellants’ unopposed request to consolidate the appeals.
¶ 10 II. ANALYSIS
¶ 11 On appeal, Loving and LCM argue that the trial court erred by declining to compel
arbitration. TruAdvice raises similar arguments but also challenges the court’s rulings regarding
the substantive merits of plaintiff’s claims. Specifically, TruAdvice contends that the court should
have dismissed plaintiff’s claims because (1) TruAdvice did not owe plaintiff a fiduciary duty prior
to March 31, 2020 and (2) plaintiff’s negligence claims are barred by the economic loss doctrine.
Plaintiff responds that the court properly declined to compel arbitration. According to plaintiff, we
lack jurisdiction to entertain TruAdvice’s arguments directed to the merits of his claims.
¶ 12 “ ‘A motion to compel arbitration is essentially a section 2-619(a)(9) motion to
dismiss or stay an action in the trial court based on an affirmative matter, the exclusive remedy of
arbitration.’ ” [CITATION]. In ruling on
such a motion, “the court must interpret all pleadings and supporting documents in the light most
favorable to the nonmoving party.” [CITATION]. Where, as here, the
court denies a motion to compel arbitration without holding an evidentiary hearing, we review the
order de novo. [CITATION].
¶ 13 A. Jurisdiction
¶ 14 We first address our jurisdiction. Illinois Supreme Court Rule 307(a)(1) (eff. Nov.
1, 2017) allows for interlocutory appeals from orders “granting, modifying, refusing, dissolving,
or refusing to dissolve or modify an injunction.” An order denying a motion to compel arbitration
is injunctive in nature and is appealable pursuant to Rule 307(a)(1). [CITATION]. Thus, we have jurisdiction to review the portion of the trial court’s September 28,
2023, order declining to compel arbitration of plaintiff’s claims.
¶ 15 However, we lack jurisdiction to address TruAdvice’s challenges to the portion of
the September 28, 2023, order declining to dismiss the case based on the purported lack of merit
of plaintiff’s claims. The substantive merit of plaintiff’s claims has nothing to do with whether the
claims are subject to arbitration. See [CITATION] (“[I]n deciding whether the parties have agreed to submit a
particular grievance to arbitration, a court is not to rule on the potential merits of the underlying
claims.”); [CITATION] (“The question of
whether an arbitration agreement encompasses a particular issue is to be determined without regard
to the merits.”). Moreover, an order denying a motion to dismiss directed toward the merits of a
claim is not an injunctive ruling within the meaning of Rule 307(a)(1). See [CITATION] (explaining that the denial of a motion to dismiss the case pursuant to
the Citizen Participation Act was not an injunctive ruling that was appealable under Rule
307(a)(1)). Even where the appellate court has jurisdiction over one issue in an appeal pursuant to
Rule 307(a)(1), this “does not open the door to a general review of all orders entered up to the date
of the interlocutory order that is appealed.” [CITATION], ¶ 37.
¶ 16 In its reply brief, TruAdvice cites [CITATION],
support of its request for us to review its arguments directed toward the merits of plaintiff’s claims.
In [CITATION], a criminal case, the trial court suppressed certain statements the defendant made to the
police on the basis that the defendant had not validly waived her right to counsel. [CITATION]. On the State’s interlocutory appeal, the appellate court first affirmed the suppression
order on a different basis, holding that the defendant had been arrested without probable cause.
[CITATION]. However, in addition to affirming the judgment, the appellate court
held that the lack of probable cause for the arrest required suppression of additional statements
that the trial court had not ordered suppressed. [CITATION]. Our supreme court
subsequently held that it was proper for the appellate court to affirm the suppression order on
alternate grounds included in the record. [CITATION] However, the supreme court
held that the appellate court exceeded its jurisdiction by ordering additional statements to be
suppressed. [CITATION]
¶ 17 Unlike the defendant in [CITATION], TruAdvice is an appellant in a Rule 307(a)(1)
civil appeal seeking to reverse the judgment, not an appellee defending the judgment. Therefore,
the maxim that a reviewing court may affirm on any basis in the record does not support
TruAdvice’s request for us to address its arguments directed to the merits of plaintiff’s claims. We
determine that our jurisdiction under Rule 307(a)(1) is limited to considering whether the trial
court properly declined to compel arbitration of plaintiff’s claims.
¶ 18 B. Preliminary Issues Regarding the Applicable Law
¶ 19 The agreement specified it was to be construed according to Florida law. Rather
than relying on Florida cases and statutes, the parties have litigated the issue of arbitrability by
citing cases applying either the Federal Arbitration Act or Illinois’s Uniform Arbitration Act. The
Federal Arbitration Act applies only where the parties’ contract evidences “a transaction involving
commerce.” 9 U.S.C. § 2 (2018); [CITATION] However, the parties have never specifically addressed the issue of whether
the agreement evidenced a transaction involving commerce. The parties also have not explained
why Illinois’s Uniform Arbitration Act would apply where the agreement specifically
contemplated applying Florida law. Nevertheless, as we will explain, plaintiff’s claims are subject
to arbitration regardless of whether we look to case law interpreting the Federal Arbitration Act or
Illinois’s Uniform Arbitration Act.
¶ 20 C. Who Decides the “Gateway” Issue of Arbitrability?
====== End of Ruling ====== ¶ 21 Loving and LCM contend that the trial court erroneously addressed whether
plaintiff’s claims were arbitrable, as this was a “gateway” issue for the arbitrator to decide. Loving
and LCM may not raise this issue on appeal, as they invited any error by urging the court to find
that the claims fell within the scope of the arbitration agreement. See [CITATION] (“A party cannot complain of error which he induced the court to make or to
which he consented.”).
¶ 22 Aside from the fact that Loving’s and LCM’s position on this point is inconsistent
with their position below, the circumstances here did not require an arbitrator to decide the issue
of arbitrability. Under case law construing the Federal Arbitration Act, “[u]nless the parties clearly
and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to
be decided by the court, not the arbitrator.” [CITATION]. Here, the
agreement did not clearly and unmistakably delegate the issue of arbitrability to an arbitrator.
Loving and LCM note that the agreement referenced the American Arbitration Association and its
Code of Arbitration Procedure. However, the agreement did not say that arbitration would be
governed by any particular set of rules. Instead, the agreement said, “Any arbitration pursuant to
this Agreement shall be conducted in accordance with, and governed by, a mutually agreeable
arbitration forum, but, in the absence of such agreement, then the American Arbitration
Association and its Code of Arbitration Procedure.” (Emphasis added.) This language is
distinguishable from the arbitration provisions in [CITATION], for example, which said that “the arbitration ‘shall be conducted in
accordance with the rules of the American Arbitration Association.’ ” Thus, the agreement here
did not meet the specificity requirement of [CITATION] to change the default rule under
the Federal Arbitration Act that the court should determine the issue of arbitrability.
¶ 23 Under case law applying Illinois’s Uniform Arbitration Act, a court should decide
the issue of arbitrability if that issue is “apparent” from the agreement’s “clear” language.
[SEGMENT 26]
[CITATION]. But “when the
language of an arbitration clause is broad and it is unclear whether the subject matter of the dispute
falls within the scope of [the] arbitration agreement, the question of substantive arbitrability should
initially be decided by the arbitrator.” [CITATION]. Here, no party ever
disputed the trial court’s authority to decide the issue of arbitrability. Additionally, as explained in
the next section, no party argues on appeal that the arbitration provisions are ambiguous, and we
hold that these provisions plainly require arbitration of plaintiff’s claims. Thus, the court did not
violate [CITATION]'s rule by deciding the issue of arbitrability.
¶ 24 D. The Language of the Agreement
¶ 25 We now look to the language of the agreement to ascertain whether plaintiff’s
claims are subject to arbitration. [CITATION] argue that the agreement’s broad
arbitration provisions unambiguously encompass plaintiff’s claims. [CITATION] further insist
that any ambiguity must be interpreted in favor of arbitration. Plaintiff argues that the agreement
is unambiguous, but he proposes it “does not apply retroactively” to claims arising before the
agreement was executed on March 31, 2020.
¶ 26 “While public policy favors arbitration as a method of dispute resolution, an
agreement to arbitrate is nevertheless a matter of contract.” [CITATION], ¶ 29. “ ‘The parties to an agreement are bound to arbitrate only those
issues which by clear language and their intentions expressed in the language show they have
agreed to arbitrate.’ ” [CITATION], ¶ 29 (quoting [CITATION]); see [CITATION].
- 10 - Stanford Junior University, [CITATION] (recognizing that the Federal Arbitration Act
“does not require parties to arbitrate when they have not agreed to do so,” but “simply requires
courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance
with their terms”). We rely on ordinary principles of contract interpretation, and our “primary
objective is to determine and give effect to the intent of the parties at the time they entered into the
contract.” [CITATION]. To ascertain the parties’ intent, we first look to the
language of the contract, considering the contract as a whole rather than isolating any provision.
[CITATION]. If the contract is unambiguous, we ascertain the parties’ intent
from the language of the contract itself, not by the parties’ construction of that language during
litigation. [CITATION].
¶ 27 Again, the first sentence of the section of the agreement addressing arbitration
provided that “Client agrees with Adviser to resolve any and all disagreements by final and binding
arbitration.” The agreement then listed “Important Disclosures” about the nature of binding
arbitration, including that the parties were “each waiving [their] respective rights to seek remedies
in court, including the right to a jury trial.” (Emphasis in original.) The agreement continued that,
except as it would be void under “applicable law” (emphasis in original):
“Client agree [sic] with Adviser that *** ALL CLAIMS OR CONTROVERSIES,
AND ANY RELATED ISSUES, which may arise at any time between Adviser
(including Adviser’s representatives, members, managers, officers, employees, and
agents) concerning any investment advice, recommendation, or exercise of limited
discretionary authority with respect to any subject matter; any transaction or order;
the conduct of our representatives, members, managers, officers, employees, and
agents; the construction, performance, or breach of this or any other agreement
- 11 - between you and us, whether entered into prior to, on, or subsequent to the date of
this Agreement; the breach of any common law or statutory duty; or the violation
of any federal or state law of any nature SHALL BE RESOLVED BY BINDING
ARBITRATION RATHER THAN BY A LAWSUIT IN A COURT OF LAW OR
EQUITY.” (Emphases in original.)
¶ 28 In arguing that his claims of negligence and breach of fiduciary duties fall outside
the scope of the agreement’s very broad arbitration provisions, plaintiff focuses on the words
“which may arise” in insolation. According to plaintiff, these words indicate the arbitration
language is “forward looking and does not apply to past conduct.” From this premise, plaintiff
reasons that because the agreement was executed on March 31, 2020, his claims, which involved
conduct that occurred prior to that date, are not subject to arbitration.
¶ 29 Although the trial court did not specifically endorse plaintiff’s interpretation, the
court deemed the agreement ambiguous as to its scope, and the court construed that ambiguity
against the drafter. On appeal, no party argues the arbitration provisions are ambiguous.
¶ 30 Plaintiff’s analysis of the agreement’s arbitration provisions is flawed, as he isolates
words and strips them of their context. The portion of the sentence from which plaintiff quotes
actually required arbitration of “all claims or controversies, and any related issues, [(emphasis
removed)] which may arise at any time.” (Emphasis added.) Notably, this language covers not just
claims or controversies that may arise at any time, but any issues related to those claims or
controversies that may arise at any time. Such broad language comfortably encompasses the claims
in this lawsuit, which was filed long after the arbitration agreement was executed, even though the
claims were primarily based on conduct predating the execution of the agreement. We say
- 12 - “primarily” because the complaint also included allegations about a phone conversation on July
14, 2020, between plaintiff, Loving, Loving’s assistant, and a representative of T. Rowe Price.
¶ 31 The remainder of the arbitration provisions further undermine plaintiff’s position
that arbitration is limited to claims arising after March 31, 2020. The agreement specified that all
claims, controversies, and any related issues regarding the performance or “breach of this or any
other agreement” between the parties, “whether entered into prior to, on, or subsequent to the date
of this Agreement,” were subject to arbitration. (Emphasis added.) Although plaintiff’s complaint
alleged breach of fiduciary duties and negligence, not breach of contract, this language is
inconsistent with plaintiff’s position that the arbitration provisions are forward-looking only.
Moreover, plaintiff’s interpretation ignores and renders superfluous the first sentence in the section
of the agreement addressing arbitration, which provided that “Client agrees with Adviser to resolve
any and all disagreements by final and binding arbitration.” (Emphasis added.) Construing the
agreement as a whole rather than looking to certain words in isolation, we discern no ambiguity.
Plaintiff’s claims of negligence and breach of fiduciary duties fall within the scope of the plain
language of the agreement’s arbitration provisions.
¶ 32 Plaintiff proposes that three cases support his interpretation of the arbitration
provisions: [CITATION], and [CITATION]. Carr and Winston Labs both
addressed disputes regarding the temporal scope of federal statutes that contained present-tense
language. See [CITATION] at 442, 449-50 (holding that a statute using the phrase “travels in
interstate or foreign commerce” did not apply to someone who traveled before the statute was
enacted); [CITATION] at * 5 (holding that where a statute defined the word
“affiliate” using present-tense language, a long-since-dissolved company did not constitute a
- 13 - party’s affiliate). Unlike the statutes at issue in those cases, the arbitration provisions here
contained much broader language that was not limited to the present tense. In [CITATION], our supreme
court held that the claims at issue arose pursuant to an agreement that did not contain an arbitration
clause, so an arbitration clause in a different agreement did not apply. [CITATION].
Here, by contrast, the only written agreement in the record contains arbitration provisions that are
most naturally interpreted as encompassing a subsequently-filed lawsuit alleging negligence and
breach of fiduciary duties. Moreover, plaintiff’s claims are based on his client-investment adviser
relationship with Loving before the parties executed a written agreement and that written
agreement expressly requires arbitration of claims regarding the performance of preexisting
agreements.
¶ 33 Plaintiff cites an additional unpublished Illinois Appellate Court order predating
2021. See [CITATION]. We will not address that case, as
plaintiff does not cite it for any permissible purpose. See Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023)
(providing that parties may cite unpublished orders predating 2021 only to “support contentions
of double jeopardy, res judicata, collateral estoppel or law of the case”).
¶ 34 Accordingly, we hold that plaintiff’s claims are subject to arbitration. We reverse
the portion of the trial court’s September 28, 2023, order denying defendants’ motions to compel
arbitration. We remand the cause to the trial court with directions to stay this action and compel
arbitration.
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we reverse the trial court’s judgment and remand with
directions to stay this action and compel arbitration.
¶ 37 Reversed and remanded with directions.
- 14 -
```plaintext
IL App (1st) 231382-U
Fourth Division
Filed February 22, 2024
No. 1-23-1382
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
[SEGMENT 27]
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
SUFYAN HASSAN, )
) Appeal from the
Plaintiff and Counterdefendant-Appellant,
) Circuit Court of Cook County
v. )
No. 2020 CH 05785
)
STATE FARM MUTUAL AUTOMOBILE ) The Honorable Joel Chupack,
INSURANCE COMPANY, ) Judge, presiding.
Defendant and Counterplaintiff-Appellee. )
)
JUSTICE OCASIO delivered the judgment of the court.
Presiding Justice Rochford and Justice Martin concurred in the judgment.
ORDER
¶1 Held: The trial court’s order granting the motion to stay arbitration and denying the
motion to compel arbitration is reversed, and the cause remanded, where State
Farm did not waive its right to contest coverage but there remained an unresolved
factual question as to whether it was estopped from doing so. The appeals from
the trial court’s orders denying Hassan’s motion to strike affirmative defenses
and motion to dismiss counterclaim are dismissed for lack of jurisdiction.
¶2 Plaintiff Sufyan Hassan appeals, under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1,
2017), the trial court’s interlocutory orders (1) staying arbitration and denying his motion to
compel arbitration, (2) denying his motion to strike defendant State Farm Mutual Automobile
Insurance Company’s (State Farm) affirmative defenses, and (3) denying his motion to dismiss
State Farm’s counterclaim. Because there remains an unresolved question of fact as to whether
``` ```plaintext
[CITATION] No. 1-23-1382
State Farm should be estopped from contesting coverage, we reverse the order staying arbitration
and declining to compel arbitration and remand for further proceedings in accordance with
section 2 of the Uniform Arbitration Act. 710 ILCS 5/2 (West 2022). However, we find that we
lack jurisdiction to review the trial court’s orders denying Hassan’s motion to strike affirmative
defenses and motion to dismiss counterclaim, which are neither independently appealable under
Rule 307 nor intertwined with the arbitration order, so we dismiss his appeal from those orders.
¶3 I. BACKGROUND
¶4 A. The Insurance Policy
¶5 This case involves an automobile insurance policy issued by State Farm to Hassan (the Policy)
that was effective from October 26, 2017, to April 26, 2018, and covered a 2007 Cadillac Escalade
owned by Hassan. The Policy included coverage for liability, medical payments (limited to
$10,000 per person), physical damage (including related expenses such as emergency road service,
car rentals, and travel), and uninsured and underinsured motor vehicles. Under the uninsured-
motorist coverage, which was required by section 143a(1) of the Illinois Insurance Code (215
ILCS 5/143a(1) (West 2018)), State Farm agreed to pay Hassan compensatory damages for bodily
injuries sustained in an accident caused by a vehicle that either was not covered by liability
insurance or whose driver or owner could not be identified. The Policy required binding arbitration
of any disputes about two specific questions that might arise under the uninsured-motorist
coverage:
“a. Is the insured legally entitled to recover compensatory
damages from the owner or driver of the uninsured motor vehicle?
b. *** [W]hat is the amount of the compensatory damages that
the insured is legally entitled to recover from the owner or driver of
the uninsured motor vehicle?” (Italics in original.)
The arbitration agreement further provided that arbitrators would “have no authority to decide any
questions of law.”
``` [CITATION] No. 1-23-1382
¶6 Under the Policy, any person defined as an insured had a duty to “submit to an examination
under oath, provide a statement under oath, or do both, as reasonably often as [State Farm]
require[s].” With respect to the uninsured motor vehicle coverage, the term insured included
(among others) Hassan as the policyholder named on the declarations page, any spouse who
“resid[ed] primarily with” him, and “any person entitled to recover compensatory damages as a
result of bodily injury to an insured.” (Italics in original.) The Policy also contained a provision
entitled “Concealment or Fraud,” which stated as follows:
“There is no coverage under this policy if you or any other
person insured under this policy has made false statements with the
intent to conceal or misrepresent any material fact or circumstance
in connection with any claim under this policy.” (Italics in original.)
¶7 B. Hassan’s Insurance Claim
¶8 In February 2018, Hassan filed a claim under the Policy for losses stemming from an alleged
hit-and-run collision on February 12, 2018. His claim involved physical damage to the car as well
as physical injuries to his person and associated medical expenses sustained during the collision,
including a torn distal bicep tendon in his left arm, which required surgery.
¶9 Materials in the record show that State Farm initially denied the claim as it pertained to
physical damage to the insured vehicle under the belief that the damage pre-existed the alleged
collision, but it later reversed course and paid for repairs. Following those repairs, Hassan
continued experiencing problems with an oil-pressure sensor and a crash sensor, but State Farm
declined to pay to fix those problems after determining that they were not related to the February
, 2018 incident. The record does not show that State Farm took any action on the claim as it
pertained to medical expenses or uninsured-motorist coverage at that time.
¶ 10 At the time of the alleged hit-and-run collision, Hassan was married to Lieim Yusuf. In July
, Yusuf filed for divorce. Several weeks later, her divorce attorney notified the attorney Hassan
had retained in connection with his insurance claim that any “monetary award” in his “personal
[CITATION] No. 1-23-1382
injury case” would be considered a marital asset. Then, in November 2018, Yusuf contacted State
Farm and alleged that Hassan had actually torn his tendon while lifting weights about a week
before the alleged hit-and-run.
¶ 11 In January 2019, State Farm sent Hassan a reservation-of-rights letter. The letter, which was
signed by a claim specialist at State Farm, stated:
“State Farm *** may have no duty to pay, indemnify, defend, or
otherwise perform under the policy *** because:
A question exists as to whether or not there has been a
material misrepresentation as to the facts, circumstances and
alleged injuries surrounding this loss.
It is questionable whether the injury was caused by a hit-
and-run motor vehicle, so as to qualify as an uninsured motor
vehicle under the Uninsured Motor Vehicle coverage.
For these reason(s), and for any other reasons which may
become known, State Farm *** reserves all rights under the policy,
including the right to deny coverage in its entirety.
***
Any action taken by State Farm *** or any of its authorized
representatives to investigate, evaluate, pay, defend, or otherwise
adjust any claim arising out of the alleged loss shall not waive any
of the terms or conditions of the State Farm policy of insurance ***,
nor shall such action waive any of your rights under the policy.”
The letter also stated that State Farm did “not intend *** to waive any policy defenses not stated
above” and it purported to “specifically reserve[] its right to assert such additional policy defenses
at any time.”
[CITATION] No. 1-23-1382
¶ 12 About three weeks later, Hassan’s attorney sent a letter to State Farm asserting that the
reservation-of-rights letter was deficient because the grounds stated in the letter for reserving rights
“lack[ed] any specificity.” He noted that the first ground given in the reservation-of-rights letter
did not “describe with any particularity *** the potential misrepresentations” and that the second
ground was merely “unsupported questioning of established facts.” The record does not contain a
response from State Farm.
¶ 13 Within a week of Hassan responding to the reservation-of-rights letter, State Farm requested
that he submit to an examination under oath as required by the Policy. On February 24, 2019,
counsel for State Farm sent a letter to Hassan’s attorney reflecting that Hassan had agreed to sit
for the examination under oath. The letter also anticipated that the claim could go to arbitration:
“In the event State Farm and Mr. Hassan are unable to agree on
the appropriate measure of damages upon completion of State
Farm’s investigation of this claim, and assuming no coverage
defenses, State Farm is willing to proceed to binding arbitration as
detailed in the applicable policy.”
The letter goes on to detail State Farm’s position about what the appropriate forum for arbitration
would be under the Policy.
¶ 14 That same day, State Farm received a report it had solicited from a firm called Crash Data
Services, LLC, concerning the cause of the damage to Hassan’s Escalade. The report concluded
that, based on the shape, location, and nature of the damage and the absence of paint transfer, the
[SEGMENT 28]
Escalade had been “backed into a tall, rounded, concrete barrier,” not struck by another vehicle.
The report described Hassan’s account of a hit-and-run collision as “patently false.”
¶ 15 In April 2019, Hassan, as required by the Policy, submitted to an examination under oath. He
testified that, on February 12, 2018, he was parked on the side of the road when a white pick-up
truck struck him from behind and then drove away. He said that, at the moment of impact, he had
his left hand on the steering wheel and was reaching toward the back seat to retrieve his phone,
[CITATION] No. 1-23-1382
which had fallen to the floor. He attributed his bicep injury to the collision, and he denied Yusuf’s
allegation that he had injured his bicep lifting weights. After the examination, State Farm’s attorney
sent an email to Hassan’s attorney stating that his “current view” was that he did not “put weight
in that one-time call by Ms. Yusuf” in view of the “very nasty divorce” and her position that the
claim was a marital asset.
¶ 16 On July 30, 2019, counsel for State Farm sent an email to Hassan’s lawyer suggesting that
they “move this case forward toward arbitration” while “wait[ing] on authority” from State Farm
and asking whether he was “free to discuss evidentiary stipulations and arbitration scheduling”
later that day. On August 11, State Farm’s attorney advised counsel for Hassan that he would accept
service of Hassan’s arbitration demand. Hassan filed the arbitration demand with the American
Arbitration Association (AAA) on August 20, 2019, and served it on State Farm via email. Counsel
for State Farm acknowledged receipt the following morning. AAA sent a letter acknowledging
receipt of the demand to both parties’ attorneys on August 23. The demand itself is not in the
record.
¶ 17 On August 27, 2019, Yusuf forwarded to State Farm a series of emails she had exchanged
with Hassan on February 6, 2018, about one week before the alleged hit-and-run, about an
unspecified injury Hassan was suffering from.
¶ 18 Materials in the record indicate that State Farm paid AAA’s docketing fee on October 9, 2019.
The arbitrator was selected on October 24 and formally appointed on October 30. State Farm was
given until November 19 to indicate whether Hassan had complied with all conditions precedent,
but it did not submit a response.
¶ 19 In early December 2019, at the request of the arbitrator, the parties submitted emails stating
their respective positions on State Farm’s intent to take a statement from Yusuf under oath. State
Farm’s submission stated, in relevant part:
“State Farm’s claim investigation is ongoing, and that
investigation now appears ready to encompass the statement of Mr.
[CITATION] No. 1-23-1382
Hassan’s estranged wife, who has come forward recently with
documentary evidence which, if true, casts the legitimacy of Mr.
Hassan’s claim into doubt. I have shared that information with
counsel and we have discussed it.
Counsel points out that AAA rules don’t entitle a party to pre-
hearing depositions, but that does not foreclose State Farm from
taking this statement if the witness is willing to appear. Even when
an arbitration of a UM claim is on track for a future hearing via
AAA, the terms of the policy still govern the parties while the claim
investigation is ongoing [CITATION].”
Hassan’s submission acknowledged that he had no basis for preventing State Farm from taking a
voluntary statement from Yusuf. He maintained, however, that State Farm was not entitled to take
a statement under oath under the terms of the Policy because she did not qualify as an “insured.”
Hassan further stated:
“Ms. Yusuf provided alleged contradictory information directly
to State Farm by email dated August 27, 2019, which counsel
provided to me November 12, 2019. State Farm has had plenty of
time to speak with Ms. Yusuf. If State Farm wants to take her
statement, it should do so soon. That does not impact this proceeding
if it will not be a deposition. I do not intend to attend any statement
because there would be no point without cross-examination, which
would not be proper under either a statement nor an examination
under oath. Ms. Yusuf should be presented at the arbitration if State
Farm chooses to rely on her information.”
Hassan also argued that he would object to “much of her potential testimony” based on the spousal-
communications privilege (see [CITATION]) and that discovery depositions of
[CITATION] No. 1-23-1382
third parties were not allowed under the AAA rules. The record does not disclose what, if anything,
the arbitrator did in response to these submissions.
¶ 20 Yusuf submitted to a voluntary examination under oath on January 3, 2020. The examination
was conducted by counsel for State Farm. Neither Hassan nor a representative was present. State
Farm’s attorney noted for the record that Hassan’s lawyer had declined an invitation to attend.
According to the affidavit of Hassan’s attorney, he chose not to attend because Yusuf refused to go
forward with the examination if Hassan was there, a condition that would have impaired his ability
to cross-examine her. Yusuf testified that, several days before the alleged hit-and-run, Hassan told
her that he had injured his arm lifting weights and showed her his bicep injury. The day after that,
she overheard Hassan telling a friend on the telephone that he was planning to attribute his injury
and an electrical problem he was having with his car to an accident so he could recover from his
insurance company.
¶ 21 C. Hassan’s Complaint
¶ 22 On February 14, 2020, Hassan filed a three-count complaint against State Farm in the Circuit
Court of Lake County. Count I alleged that, contrary to the insurance policy’s arbitration, State
Farm was refusing to arbitrate his claim under the uninsured-motorist coverage. It sought specific
performance of State Farm’s arbitration obligation. Count II alleged that State Farm had breached
the Policy by refusing to pay out the full value of Hassan’s claim for vehicle damage. It prayed for
damages. Count III alleged that State Farm had engaged in unreasonable and vexatious actions in
connection with the claims arising from the alleged hit-and-run. It sought an award of attorney
fees under section 155 of the Illinois Insurance Code. 215 ILCS 5/155 (West 2020).
¶ 23 At the time Hassan filed suit, State Farm had not formally denied the uninsured-motorist
claim, but it did so less than one week later. On February 20, State Farm sent Hassan (courtesy of
his attorney) a letter notifying him that it was denying coverage on the uninsured-motorist claim.
The letter identified four grounds for its denial of coverage. First, it stated that the alleged hit-and-
run was not a “loss” or an “accident” under the Policy. Second, it stated that Hassan had violated
[CITATION]
2024 IL App (1st) 231382-U No. 1-23-1382
the concealment-or-fraud provision of the Policy by “materially misrepresenting the facts and
circumstances” surrounding the alleged hit-and-run. Third, it stated that the medical-payments
coverage did not apply because Hassan’s medical expenses were not the result of an injury
sustained in the alleged hit-and-run. Fourth, it stated that the uninsured-motorist coverage did not
apply because his injuries were not the result of a hit and run.
¶ 24 In May 2020, State Farm filed a motion to transfer based on forum non conveniens. While
that motion was still pending, in July 2020, Hassan filed a motion to compel arbitration. The court
granted State Farm’s transfer motion in August 2020, and the case was transferred to the Circuit
Court of Cook County. 1 The arbitration proceeding remained pending until November 2020, when
AAA closed it after neither party agreed to pay an additional fee to keep it open.
¶ 25 D. State Farm’s Answer, Affirmative Defenses, and Counterclaim
¶ 26 Following the change of venue, on January 7, 2023, State Farm filed an answer denying
essential allegations in all three counts of the complaint. As relevant here, State Farm admitted that
February 12, 2018, was within the effective period of the Policy. It asserted, however, that there
was “no coverage under [the] policy” for the incident that Hassan alleged had taken place on that
date because Hassan had breached the Policy’s concealment-or-fraud provision, voiding the Policy.
¶ 27 State Farm also raised two affirmative defenses. In its first affirmative defense, State Farm
alleged that Hassan was not entitled to judgment on his claims because he had breached the
concealment-or-fraud provision of the Policy, which provided that there was “no coverage under
[the] policy” if Hassan or another insured “had made false statements with the intent to conceal or
misrepresent any material fact or circumstances in connection with any claim under [the] policy.”
[SEGMENT 29]
State Farm’s second affirmative defense went only to Count III. It alleged that State Farm’s denial
The motion to transfer and the order granting the motion to transfer are not included in the record
on appeal, but we may take judicial notice of court records. [CITATION]
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No. 1-23-1382
of coverage was justified or, at minimum, based on the existence of a good-faith dispute over
coverage.
¶ 28 In addition to its answer, State Farm filed a counterclaim for a declaratory judgment. The
counterclaim alleged that Hassan had violated the concealment-or-fraud provision of the Policy by
falsely representing that a hit-and-run accident had occurred on February 12, 2018. It alleged that
Hassan’s bicep injury had occurred before the supposed accident, that he had conspired with a
friend to stage an accident so he could recover from State Farm, and that a forensic analysis of the
vehicle showed that it had not been struck from behind by a hit-and-run vehicle. It sought a
declaration that there was no coverage under the Policy for the February 12, 2018 incident and that
it had no duty to pay Hassan’s claims associated with that incident.
¶ 29 E. The Parties’ Motions and the Trial Court’s Interlocutory Orders
¶ 30 Between January and March 2023, the parties filed a series of motions, responses, and replies.
All of those motions were resolved by written orders entered by the trial court on July 7, 2023. For
the sake of clarity, we will describe the motions and the trial court’s associated rulings one at a
time.
¶ 31
. Motion to Compel Arbitration and Cross-Motion to Stay Arbitration
¶ 32 The day before State Farm filed its answer, affirmative defenses, and counterclaim, Hassan
filed an amended motion to compel arbitration. Anticipating a dispute over coverage, the motion
to compel argued that State Farm had waived any coverage defense under the rules governing the
arbitration and that it should be estopped from denying coverage because it had led Hassan to
believe that any coverage issues would be resolved in arbitration and that Hassan had relied on
that belief to his detriment when he paid the $450 arbitration fee.
¶ 33 The next day, along with its answer and counterclaim, State Farm filed a cross-motion to stay
arbitration, which also served as its response to Hassan’s motion to compel. In its cross-motion,
State Farm asserted that there was no coverage under the Policy because no hit-and-run accident
had occurred and because Hassan had breached the Policy’s concealment-or-fraud provision. It
[CITATION] No. 1-23-1382
argued that it had not waived its coverage defense because arbitration was ultimately not conducted
and because it had notified AAA that it objected to continuing to participate in the arbitration. 2
State Farm also argued that it was not estopped from raising its coverage defense because it had
expressly reserved its rights in its January 2019 letter and because at the time State Farm “initially
agreed to participate in arbitration,” it had not yet obtained Yusuf’s statement under oath.
¶ 34 In his response, Hassan characterized State Farm’s cross-motion to stay arbitration as a
request for the court to “decide its Counterclaim prior to arbitration,” and argued that State Farm’s
counterclaim was not proper for the reasons given in his motion to dismiss, which is discussed
below.
¶ 35 The trial court denied Hassan’s motion to compel, granted State Farm’s motion to stay, and
ordered a stay of arbitration:
“[T]he Court must first determine whether Hassan violated the
Concealment or Fraud provision of the Policy. If he did, then there
is no coverage and nothing to arbitrate. If he did not, then there may
be coverage subject to arbitration. Until this determination is made,
the Arbitration should be stayed.”
In the order, the court also rejected Hassan’s waiver and estoppel arguments. Reasoning that “no
arbitration was conducted” and that State Farm notified AAA of its objection once it had obtained
Yusuf’s statement under oath, it found that State Farm had not waived arbitrability under the AAA
Rules. It also found that the January 2019 reservation-of-rights letter “insulate[d] State Farm from
estoppel.”
The record does not disclose when State Farm filed its objection. Hassan appears to concede
that an objection was filed at some point, but he asserts that it was more than 30 days after AAA
acknowledged the arbitration demand, which State Farm does not dispute.
[CITATION]
¶ 36
. Motion to Strike Affirmative Defenses
¶ 37 Hassan filed a motion to strike State Farm’s affirmative defenses. The motion to strike argued
that State Farm’s noncoverage defense, which stated the reasons why State Farm had denied the
underlying claim, were premature because Hassan was only seeking specific performance of the
arbitration agreement, not damages for breaching the contract by denying his claim. The motion
also argued that State Farm’s defenses did not raise any affirmative matters that would defeat his
claims but instead denied the allegations of the complaint, which meant that they were not properly
raised as affirmative defenses.
¶ 38 The trial court denied the motion to strike. It found that State Farm’s noncoverage defense
was “not a mere denial of the well-pled facts of the specific performance count” because, if proven,
there would be no coverage under the Policy and the arbitration provision could not be invoked.
Noting that the existence of a bona fide coverage dispute would defeat the allegation of Count III
of the complaint that State Farm’s conduct was vexatious and unreasonable, it also found that such
a dispute was an affirmative defense to a claim for attorney fees under section 155.
¶ 39
. Motion to Dismiss Counterclaim
¶ 40 Hassan also filed a combined motion to dismiss State Farm’s counterclaim under sections
-615 and 2-619 of the Code of Civil Procedure. [CITATION]; see
id. § 2-619.1 (authorizing a combined motion to dismiss). The motion argued that, for two reasons,
State Farm’s counterclaim was subject to dismissal under section 2-615 because it failed to state a
claim upon which relief could be granted. First, it argued that the counterclaim improperly sought
an advisory opinion as to nonliability for its denial of Hassan’s claim. Second, it argued that,
because the alleged misrepresentations were not made in the Policy or his policy application, they
did not provide a basis for invalidating the Policy. The motion sought involuntary dismissal of the
counterclaim under section 2-619(a)(9) because it was based on privileged marital
communications. It also sought involuntary dismissal under section 2-619(a)(3) on the basis that
there was a pending arbitration, arguing that State Farm’s conduct during the aborted arbitration
[CITATION] No. 1-23-1382
proceedings had waived its noncoverage defense that it was estopped from asserting its coverage
defense due to its conduct leading up to arbitration, its delaying the denial of Hassan’s claim until
after he filed suit to compel arbitration, and by failing to provide Hassan with a copy of an
amendatory endorsement to the Policy that prevented it from relying on Yusef’s statements to deny
coverage.
¶ 41 The trial court denied Hassan’s motion to dismiss on the grounds that State Farm had
articulated in its response. It found that, because the counterclaim sought a finding that there was
no coverage under the Policy for any claims related to the February 12, 2018 incident, not just the
uninsured-motorist claim, declaratory relief could be appropriate. It found that Hassan’s alleged
misrepresentations about the February 12, 2018 incident would be a legally proper basis for
denying coverage under the Policy’s concealment-or-fraud provision. It found that, due to the
absence of a developed record, it would be premature to determine whether the spousal-
communications privilege applied and that, in any event, State Farm’s counterclaim relied on
allegations derived from sources other than Hassan’s ex-wife. Finally, it found that the
counterclaim was not subject to dismissal under section 2-619(a)(3) because the arbitration and
the counterclaim did “not constitute the same action.” The court’s order denying the motion to
dismiss acknowledged, but did not resolve, Hassan’s argument that State Farm had waived and
was estopped from asserting its coverage defense.
¶ 42 Hassan filed a notice of appeal from all three July 7, 2023 orders.
¶ 43 II. ANALYSIS
¶ 44 At the outset, we note that we have jurisdiction under Illinois Supreme Court Rule 307(a)(1)
(eff. Nov. 1, 2017) over the trial court’s interlocutory order granting a stay of arbitration and
denying Hassan’s motion to compel arbitration. [CITATION]. The parties disagree about whether we have
jurisdiction to reach the trial court’s orders denying Hassan’s motions to strike affirmative defenses
[SEGMENT 30]
and dismiss the counterclaim. As discussed below, whether we have jurisdiction over those orders
[CITATION] No. 1-23-1382
turns on the extent to which they are bound up with the appeal of the arbitration order, so we begin
our analysis with the trial court’s resolution of the parties’ arbitration motions.
¶ 45 A. Arbitration
¶ 46 The primary issue in this interlocutory appeal is whether the trial court correctly denied
Hassan’s motion to compel arbitration, granted State Farm’s motion to stay arbitration, and ordered
arbitration stayed until the court resolves whether Hassan violated the concealment-or-fraud
provision of the Policy. The question before us is “whether there was a sufficient showing to sustain
the order of the trial court.” [CITATION] The trial court
did not hold an evidentiary hearing or make any findings of historical fact, so our review is de
novo. [CITATION], ¶ 31.
¶ 47
. The Uniform Arbitration Act
¶ 48 Proceedings related to arbitration in Illinois courts are governed by our state’s Uniform
Arbitration Act (Illinois UAA) (710 ILCS 5/1 et seq. (West 2022)). [CITATION] The Illinois UAA is based on, and substantially adopts
the provisions of, the 1956 version of the uniform act bearing the same name. See Uniform
Arbitration Act (1956), 7 U.L.A. 99-796 (West 2009) (UAA (1956)). By its own terms, the Illinois
UAA is to be construed “to make uniform the law of those states which enact” the uniform act it
is based on. 710 ILCS 5/20 (West 2022); see UAA (1956) § 21.3 Thus, Illinois courts “show greater
than usual deference to the opinions of the courts of other jurisdictions” when interpreting the
Illinois UAA. [CITATION]
¶ 49 As relevant here, section 2 of the Illinois UAA provides the mechanism used to enforce
arbitration agreements in Illinois courts. Section 2 allows parties to request, by “application,” a
court order either compelling or staying arbitration. 710 ILCS 5/2 (West 2022). Under section 2(a),
The Illinois UAA omits section 15 of the UAA (1956). Consequently, section 15 of the Illinois
UAA corresponds to section 16 of the UAA (1956); section 16 of the Illinois UAA corresponds
to section 17 of the UAA (1956), and so on.
[CITATION] No. 1-23-1382
a party can obtain an order compelling a dispute to arbitration by showing that a valid agreement
to arbitrate the controversy exists and that the opposing party is refusing to submit to arbitration.
Id. § 2(a). Conversely, under section 2(b), a party can seek an order staying a “commenced or
threatened” arbitration by showing that there is no agreement to arbitrate the dispute. Id. § 2(b). In
either situation, the applicant bears the burden of establishing that it is entitled to an order
compelling or staying arbitration. See [CITATION], ¶ 26.
¶ 50 A court should not compel resolution of a dispute in arbitration unless it is “of the type that
the parties have agreed should be submitted to arbitration.” [CITATION]. At the same time, one of the chief
advantages of arbitration is that it is “an effective, expeditious, and cost-efficient method of dispute
resolution.” [CITATION]. Lengthy and expensive litigation over issues
connected with arbitration would, of course, undermine that benefit. So, an express purpose of the
uniform act, and thus the Illinois UAA, is to “provide an efficient procedure” when court oversight
of arbitration issues becomes necessary. See UAA (1956) Prefatory Note, 7 U.L.A. 100. To that
end, section 2 requires courts to resolve disputes about arbitrability—i.e., whether a given claim
must be decided in arbitration—“summarily” and dispose of motions to compel or stay arbitration
accordingly. 710 ILCS 5/2(a), (b) (West 2022); accord UAA (1956) § 2(a), (b).
¶ 51 To be clear, the summary proceeding contemplated by section 2 “is not one which merely
disposes of the motion in a conclusory fashion.” [CITATION], ¶ 24. The
directive to proceed summarily means only that the “trial court should act expeditiously and
without a jury trial to determine whether a valid arbitration agreement exists.” Uniform Arbitration
Act (2000) § 7, cmt., 7 U.L.A. 32 (discussing section 2 of the UAA (1956)). When arbitrability is
put into dispute, the court must “substantively dispose[] of the issues presented.” [CITATION], ¶ 31. Section 2 requires a “considered
disposition” in which the trial court “separately addresses each issue raised by the motion” and
“support[s] its resolution of each issue with specific factual findings or legal reasons.” [CITATION] No. 1-23-1382
[CITATION]. The trial court should start by identifying the issues raised by the
parties and considering the affidavits, pleadings, stipulations, and any other evidence that is before
it. [CITATION]; accord [CITATION] (interpreting the Uniform Arbitration Act of
); [CITATION]
(same). To the extent that there are no factual disputes and the issues can be resolved as a matter
of law, no evidentiary hearing is required. [CITATION]. Any remaining dispute of
material fact should be resolved expeditiously at an evidentiary hearing. [CITATION]. Because that
evidentiary hearing is part of the summary proceeding required by section 2, it may be “conducted
‘[w]ithout the usual formalities [and] without a jury.’ ” (Alterations in original.) [CITATION]
(quoting Black’s Law Dictionary 1476 (8th ed.
)).
¶ 52 Here, in its response to Hassan’s motion to compel arbitration and its cross-motion to stay
arbitration, State Farm argued that there was no coverage for the alleged collision because no hit-
and-run accident had occurred and because Hassan has violated the concealment-or-fraud
provision of the Policy. In terms of section 2 of the Illinois UAA, State Farm’s response “denie[d]
the existence of the agreement to arbitrate,” and its cross-motion asserted that “there [was] no
agreement to arbitrate.” 710 ILCS 5/2(a), (b) (West 2022). There is no dispute that, standing alone,
the Policy only called for the parties to arbitrate the liability of the hit-and-run driver or owner and
the extent of damages—not coverage. Hence, once raised, “the issue of coverage should have been
summarily tried [CITATION] because questions of law or fact concerning coverage cannot under [the]
agreement be submitted to arbitration.” [CITATION]. The trial court was therefore required to “act expeditiously and without a jury
trial to make a substantive determination of whether a valid arbitration agreement exist[ed], and to
[CITATION] No. 1-23-1382
resolve any other issues raised by” the parties’ cross-motions. [CITATION],
¶ 25 (describing the summary proceeding contemplated by section 2).
¶ 53 With this framework in mind, we turn to Hassan’s arguments that the trial court erred in
denying his motion to compel arbitration by finding that State Farm neither had waived its
coverage defense nor was estopped from asserting it.
¶ 54
. Waiver
¶ 55 We first consider whether the trial court correctly found that State Farm had not waived its
right to contest coverage. A waiver is “an express or implied voluntary and intentional
relinquishment of a known right.” [CITATION], ¶ 21. Waiver involves “a unilateral act,” and it does not require “detrimental reliance” by
the other party. [CITATION]. The
inquiry “focuses exclusively on the conduct of the” party alleged to have waived a right. Id. at 218.
The burden is on the party asserting waiver to show that the other party “knew of its rights” and
“evidenced an intention to waive such rights.” [CITATION], ¶ 29 (citing [CITATION],
Ill. 2d 98, 104 (1991)). The bar for establishing an implied waiver is high. “Implied waiver of
a legal right must be proved by a clear, unequivocal, and decisive act of the party who is alleged
to have committed waiver.” Id. at 105. For instance, a party might impliedly waive
a known right by engaging in “conduct [that] is inconsistent with any other intention than to waive
it.” (Internal quotation mark omitted.) Id. (quoting [CITATION],
Ill. App. 3d 1046, 1052 (1974)). An insurer can waive questions as to coverage under a policy
[SEGMENT 31]
by taking action that “recognizes the continued validity of the policy” (internal quotation marks
omitted), such as assuming the insured’s legal defense without reserving its right to contest
coverage. [CITATION], ¶ 22 (quoting [CITATION],
Ill. App. 3d 299, 306 (1994)).
[CITATION] No. 1-23-1382
¶ 56 On appeal, Hassan points to nothing in the record indicating that State Farm expressly waived
its noncoverage defense. Instead, he argues that State Farm waived its right to contest coverage
through its conduct in the since-abandoned arbitration proceedings by failing to comply with
various procedural rules governing the arbitration. See American Arbitration Association, Illinois
Uninsured/Underinsured Motorist Arbitration and Mediation Rules (eff. Feb. 1, 2016) (AAA
Rules).
¶ 57 We agree, as a general matter, that a party can waive the issue of arbitrability by not raising
it in a timely fashion during arbitration proceedings. See [CITATION]. But that rule is a consequence of section 12(b)(5) of Illinois UAA,
which provides that an arbitration award can be vacated on the ground that there was no arbitration
agreement, but only if “the party did not participate in the arbitration hearing without raising the
objection.” 710 ILCS 5/12(a)(5) (West 2022); see [CITATION]. In other
words, the right waived by participating in arbitration without raising a timely objection to
arbitrability is the right to contest an award on that basis, not the right to assert non-arbitrability
generally. Here, State Farm is not relying on its coverage defense as grounds for vacating an
arbitration award under section 12(a)(5). Indeed, because the parties never finished arbitration,
there is no award that could be vacated. Hence, there is no implied waiver arising from State Farm’s
alleged failure to contest coverage pursuant to the AAA Rules.
¶ 58 Hassan also contends that State Farm waived the right to have the coverage issue decided by
the court. He notes that AAA Rule 4 contemplates submitting coverage disputes to the arbitrator
by agreement:
“Issues as to coverage, *** may be referred to voluntary
coverage arbitration with the agreement of all parties before the
arbitrator appointed by the AAA. *** In the absence of an agreement
[CITATION] No. 1-23-1382
to submit such issues to arbitration, accident claims arbitrators may
only decide contested issues of coverage, applicable policy limits,
or stacking of policy coverage where ordered to do so by a court or
where so authorized by law.” AAA Rules, R. 4.
Citing [CITATION], Hassan suggests
that, by participating in the arbitration process, State Farm implicitly agreed to have the arbitrator
decide its noncoverage defense, thereby waiving its right to have arbitrability decided by the court.
¶ 59 We think this argument misunderstands [CITATION]. In [CITATION], after an arbitration award
was entered on an uninsured-motorist claim, the insurer returned the award for modification on the
ground that it exceeded the limit stated in the insurance policy. [CITATION]
In his opposition to the insurer’s modification request, the claimant apparently argued that a
statutory amendment that increased the mandatory minimum coverage limits retroactively
increased the limits of the policy at issue. See [CITATION] The arbitrator agreed with the insurer
and modified the award to reflect the reduced limit stated in the policy. [CITATION] After a circuit
court confirmed the modified award, the claimant appealed. [CITATION] Among other things, he argued that
the arbitrator had lacked jurisdiction to decide the legal question of whether the statutory
amendment retroactively applied to the policy at issue. [CITATION] The court, however, found that
the claimant had waived any objection to the arbitrator deciding the issue by submitting a response
to the insurer’s request for a modification on the merits rather than moving to stay the modification
or objecting to the arbitrator’s authority to decide the policy-limit issue. [CITATION]
¶ 60 The situation in this case is not the same. In [CITATION], the claimant waived his objection to
the arbitrator deciding a legal question by submitting the issue to the arbitrator. Here, by contrast,
the record does not show that either party asked the arbitrator to decide the coverage issue.
¶ 61 It is true, as Hassan points out, that the parties each sent emails to the arbitrator in December
stating their positions concerning State Farm’s efforts to obtain a sworn statement from Yusuf
and on the applicability of the spousal-communications privilege to whatever she might testify to.
[CITATION] No. 1-23-1382
While this certainly suggests that both parties were contemplating that Yusuf might provide
testimony in the arbitration proceedings, that testimony was not, as Hassan contends, relevant
solely to the issue of coverage. 4 Among other things, Yusuf alleged that Hassan had sustained the
tear to his left distal bicep tendon while exercising before the alleged hit-and-run took place, and
she had provided State Farm with emails that seemingly corroborated that claim. That evidence
tended to show that the injury pre-existed the claimed hit-and-run incident, from which it would
follow that the owner or driver of the hit-and-run vehicle would not be liable to Hassan for that
injury because it had not been sustained during the hit-and-run incident. And under the Policy, the
parties were required to resolve disputes over the hit-and-run driver or vehicle owner’s liability in
arbitration. Because Yusuf’s potential testimony was relevant to a question subject to arbitration
under the Policy, State Farm’s willingness to have the arbitrator consider issues related to securing
and presenting that testimony was fully consistent with an intent to arbitrate only those issues
subject to arbitration under the Policy. In short, it did not necessarily reflect that State Farm
intended to have the arbitrator decide the coverage dispute, so it does not rise to the level of an
unequivocal implied waiver of State Farm’s coverage defense.
¶ 62 As the party asserting waiver, Hassan had the burden of showing that State Farm waived its
right to raise its coverage defense or to have the coverage issue decided by the court. Based on the
record before us, we agree with the trial court that he failed to carry that burden, and we hold that
State Farm did not waive its right to dispute coverage.
¶ 63
. Estoppel
¶ 64 Hassan next argues that State Farm should be estopped from disputing coverage. “[E]stoppel
refers to an abatement, by operation of law, of the insurer’s rights where it would be inequitable to
permit their assertion.” [CITATION], ¶ 12. “The general rule is that where a
We note that, in his complaint, Hassan expressly took the contrary position, arguing that Yusuf’s
testimony “is a subject for arbitration” because it went to whether “the hit-and-run driver is
liable to” Hassan.
[CITATION] No. 1-23-1382
person by his or her statements and conduct leads a party to do something that the party would not
have done but for such statements and conduct, that person will not be allowed to deny his or her
words or acts to the damage of the other party.” [CITATION]. To estop State Farm from contesting arbitrability, Hassan must put forward
“clear, concise, and unequivocal” evidence showing that: (1) he was misled in some way by State
Farm’s actions or statements, (2) he relied on that conduct or misrepresentation, (3) that reliance
was reasonable, and (4) that reliance prejudiced him. [CITATION], ¶ 28.
¶ 65 Here, Hassan argues that State Farm should be estopped from disputing coverage because it
invited him to arbitrate the dispute in a July 30, 2019 email that State Farm’s lawyer sent to
Hassan’s lawyer, which stated as follows:
“Steve:
Let’s move this case forward toward arbitration as I wait on
authority. Are you free to discuss evidentiary stipulations and
arbitration scheduling this afternoon? If so, let me know what time.
I’ll call you.
Regards,
-EWM”
Hassan argues that, in the context of State Farm’s previous communications—including its
reservation-of-rights letter, which identified two coverage defenses, and its February 24, 2019
letter indicating that, once it completed its investigation and “assuming no coverage defenses,” it
would be “willing to proceed to binding arbitration” on any remaining dispute over damages—the
July 30 email suggested that State Farm had completed its investigation and concluded that it did
not have any coverage defenses.
¶ 66 Based strictly on the materials in the record before us, Hassan’s reading of the July 30 email
is a plausible one. It is apparent, though, that we are lacking the full context. For instance, the
[CITATION] No. 1-23-1382
February 24 letter suggests that it is responding to an email sent three days earlier by Hassan’s
attorney that is not in the record. The July 30 email states that counsel for State Farm was
“wait[ing] on authority,” but it does not specify what kind of authority, implying previous
[SEGMENT 32]
communications that are not found in the record. Indeed, other than the emails exchanged about
Yusuf’s allegation on the night of Hassan’s examination under oath, the record is bereft of
information about any communication between the parties between February 24 and July 30, 2019,
that would shed light on whether it was reasonable to rely on the July 30 email as indicating that
State Farm had completed its investigation and was no longer contesting coverage.
¶ 67 Still, because Hassan’s reading is a plausible one, we do not think that his estoppel argument
was properly rejected purely as a matter of law. When “reasonable people might draw different
conclusions from the evidence,” estoppel is a question for a trier of fact. [CITATION] Because estoppel could not be resolved as a matter of law, the trial court should
have held an evidentiary hearing and then determined, as a question of fact, whether Hassan had
proven the elements of his estoppel claim. We therefore reverse the trial court’s arbitration order
and remand for it to, in accordance with section 2 of the Illinois UAA, hold any proceedings
necessary to decide whether State Farm’s conduct estops it from contesting coverage under the
particular facts of this case, as the court may determine.
¶ 68
. Coverage
¶ 69 Finally, we note that, in resolving the arbitration motions, the trial court expressly reserved
ruling on the ultimate question of coverage raised by State Farm. Although neither party raises the
point, “denying [a] motion to compel arbitration without ruling on the arbitrability of the dispute”
is error. [CITATION] On remand,
the trial court should not only decide the issue of estoppel but also any other remaining questions
of law or fact—such as State Farm’s noncoverage assertions—needed to substantively resolve
whether the parties’ dispute is within the scope of the arbitration agreement. See 710 ILCS 5/2
(West 2022); [CITATION] No. 1-23-1382
¶ 70 B. State Farm’s Affirmative Defenses and Counterclaim
¶ 71 As noted above, our jurisdiction to review the trial court’s arbitration order under Rule
(a)(1) is clear. The orders denying Hassan’s motion to strike affirmative defenses and his
motion to dismiss the counterclaim are a different matter. Those interlocutory orders are not
independently appealable, either by permission under Rule 306(a) or as of right under Rule 307(a).
That is not necessarily dispositive, though. “Rule 307 allows this court to review any prior error
that bears directly upon the question of whether an order on appeal was proper.” [CITATION]
In other words, our review of the trial court’s order staying
arbitration is not limited to the four corners of that particular order but extends to any antecedent
actions that have a direct bearing on the arbitration decision. Cf. Ill. S. Ct. R. 366(a)(5) (granting
reviewing court authority to “enter and judgment and make any order that ought to have been given
or made *** that the case may require”). Among other things, that means we have jurisdiction to
consider any previous order that is “intertwined” with the resolution of the arbitration motions
such that the outcome of the previous order was necessarily dispositive of the arbitration order.
See [CITATION] (finding jurisdiction to
review trial court’s order denying defendant’s motion to strike class allegations because that
decision necessarily required it to also deny defendant’s motion to compel arbitration).
¶ 72 In his briefs, Hassan asserts that we have jurisdiction to review the trial court’s orders denying
his motions to strike State Farm’s affirmative defenses and dismiss its counterclaim because the
“denial of [his] motions attacking [State Farm’s] pleadings made denial of [his] motion compelling
arbitration a foregone conclusion.” We disagree. The Illinois UAA permitted State Farm to raise
its noncoverage defense by way of “den[ying] the existence of an agreement to arbitrate” in its
response to the motion to stay arbitration. 710 ILCS 5/2(a) (West 2022). It also permitted State
Farm to raise that defense in its cross-motion to stay arbitration, which required it to show that
there was no agreement to arbitrate. Id. § 2(b). Because State Farm did not need to plead
noncoverage as an affirmative defense or in a counterclaim to be able to rely on it as a basis for
[CITATION] No. 1-23-1382
defeating Hassan’s motion to compel arbitration, it would not have made any difference if the trial
court had granted Hassan’s motions directed against State Farm’s pleadings.
¶ 73 Hassan also suggests that the trial court’s rulings on his motion to strike and motion to dismiss
were intertwined with its ruling on the arbitration motion because they involved overlapping issues
of waiver and estoppel. Again, we disagree.
¶ 74 Our review of the record discloses that Hassan did not move to strike State Farm’s affirmative
defenses on the basis of either waiver or estoppel. Instead, he argued that its noncoverage defenses
constituted a denial of the allegations in his complaint, which meant that they were not properly
raised as affirmative defenses. The trial court’s order denying the motion to strike did not address
either waiver or estoppel. Hence, that order is not intertwined with the arbitration order, which
means we lack jurisdiction to review it on an interlocutory basis.
¶ 75 Hassan’s motion to dismiss State Farm’s counterclaim asserted both waiver and estoppel, but
it did so within the context of arguing that the counterclaim should be dismissed because the
arbitration proceedings were a pending action involving the same claim. See 735 ILCS
/2-619(a)(3) (West 2022) (permitting involuntary dismissal of a claim when “there is another
action pending between the same parties for the same cause”). Consequently, although the trial
court’s order denying the motion to dismiss discussed the parties’ arguments concerning waiver
(but not estoppel), it denied the motion on the basis that “the AAA arbitration and the Counterclaim
do not constitute the same action.” That finding had nothing to do with waiver or estoppel, which
means that the trial court’s resolution of the motion to dismiss was not intertwined with its
arbitration order. Again, that means we do not have jurisdiction to review it in this interlocutory
appeal.
¶ 76 In sum, the trial court’s denial of Hassan’s motion to strike State Farm’s affirmative defenses
and his motion to dismiss its counterclaim had no bearing on its resolution of the arbitration
motions. We therefore lack jurisdiction to review those orders on an interlocutory basis, so we
[CITATION]
No. 1-23-1382
must dismiss Hassan’s appeal from those orders. See [CITATION]
¶ 77 C. Hassan’s Request for Sanctions
¶ 78 In his reply brief, Hassan asks us to sanction State Farm based on various allegations of
misconduct in the trial court and on appeal. But his complaints about conduct in the trial court are
not properly before us, as the record contains no indication that Hassan sought sanctions in the
trial court. In any event, he did not ask for sanctions in his opening brief, and “[i]ssues raised for
the first time in a reply brief do not merit consideration.” [CITATION]; see also [CITATION]
(“The reply brief, if any, shall be confined strictly to reply to arguments presented in the brief of
the appellee.”). As for the alleged misconduct in this court, a request for sanctions is properly
brought through a motion, not in a reply brief to which the opposing party has no right of response.
See [CITATION]. On our own motion, the portion of Hassan’s reply brief
requesting sanctions against State Farm is stricken for noncompliance with the rules. See
[CITATION] (“Where a brief has failed
to comply with the rules, we may strike portions of the brief or dismiss the appeal, should the
circumstances warrant.”).
¶ 79 III. CONCLUSION
¶ 80 We hold that State Farm did not waive its right to contest coverage, but we find that the trial
court erred by rejecting Hassan’s estoppel claim as a matter of law. We therefore reverse the order
denying Hassan’s motion to compel arbitration and granting State Farm’s cross-motion to stay
arbitration, and we remand to the trial court. On remand, consistent with section 2 of the Illinois
UAA (710 ILCS 5/2 (West 2022)), the trial court should make any factual determinations necessary
to resolve Hassan’s estoppel claim, and it should hold any other proceedings that may be needed
for it to resolve the ultimate question of coverage. Because we lack jurisdiction to consider the
[CITATION] No. 1-23-1382
trial court’s orders denying Hassan’s motion to strike affirmative defenses and motion to dismiss
counterclaim, we dismiss his appeal from those orders.
¶ 81 Reversed and remanded in part; dismissed in part.
[CONTENT WITH CITATIONS REMOVED FOR DEMONSTRATION PURPOSES]
2024 IL App (4th) 221030
FILED
NO. 4-22-1030 February 13, 2024
Carla Bender
[SEGMENT 33]
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THOMAS KEY SR., as Independent Administrator of the ) Appeal from the
Estate of Lois Key, Deceased, ) Circuit Court of
Plaintiff-Appellant, ) Ford County
v. ) No. 22LA2
ACCOLADE HEALTHCARE OF THE HEARTLAND, )
LLC, d/b/a Accolade Healthcare of Paxton on Pells, ) Honorable
Defendant-Appellee. ) Matthew John Fitton,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Lannerd and Knecht concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Thomas Key Sr., as independent administrator of the estate of Lois Key,
deceased, filed this nursing home negligence action against defendant, Accolade Healthcare of the
Heartland, LLC, d/b/a Accolade Healthcare of Paxton on Pells. (Defendant asserts that plaintiff
did not sue it by its correct legal name, and we have corrected the caption accordingly.) Plaintiff
appeals an order dismissing all three counts of his complaint with prejudice and compelling
arbitration of the claims. We reverse and remand.
¶2 I. BACKGROUND
¶3 Decedent, Lois Key, resided at defendant’s nursing home facility before dying on
July 20, 2020. On March 4, 2022, plaintiff filed a three-count complaint against defendant. Count
I was filed pursuant to the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2022)) and
the Survival Act (755 ILCS 5/27-6 (West 2022)). Count II was filed pursuant to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2022)). Count III realleged count I and then sought
to recover decedent’s funeral and burial expenses.
¶4 A. Defendant’s Motion to Dismiss and to Compel Arbitration
¶5 Pursuant to section 2-619(a) of the Code of Civil Procedure (Code) (735 ILCS
5/2-619(a) (West 2022)), defendant moved to dismiss the action and to compel arbitration of all
three counts of the complaint. Defendant argued that decedent agreed to arbitrate disputes as part
of the documents she signed attendant to her residency at defendant’s facility. According to
defendant, the arbitration agreement was valid, and the issues in plaintiff’s complaint fell within
the scope of that agreement. Although defendant relied almost exclusively on Illinois caselaw in
its motion, defendant maintained it was entitled to its requested relief under both federal and
Illinois law. To that end, defendant cited both the United States Arbitration Act, as amended, most
commonly referred to as the Federal Arbitration Act (9 U.S.C. § 1 et seq. (2018)), and Illinois’s
Uniform Arbitration Act (710 ILCS 5/1 et seq. (West 2022)).
¶6 As “Exhibit B” to its motion, defendant attached a lengthy admission packet
containing documents signed by decedent. Exhibit B includes an executed “Contract Between
Resident and Facility.” This contract contains the following arbitration provisions:
“The Resident agrees to submit all claims or controversies arising out of or
in any way relating to the Agreement, but not involuntary transfer and discharge
proceedings, eviction proceedings, or matters that are properly filed in a small
claims court or with the State Agency, in accordance with the Arbitration
Agreement attached as Attachment E. Resident voluntarily agrees that execution of
the Agreement [sic].
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'clanton-v-oakbrook-healthcare-centre-ltd', which should be replaced with `[CITATION]`. Pursuant to the Federal Arbitration Act *** and other applicable law, the
parties agree to submit any dispute, claim, or controversy (‘Dispute’), arising out
of or relating to (i) this Agreement or any amendment to this Agreement or (ii) the
breach, termination, enforcement, interpretation, or validity of this Agreement,
including the determination of the scope or applicability of this agreement to
arbitrate (‘Arbitration Agreement’), to final and binding arbitration before one
arbitrator. If such arbitrator finds any portion of this Arbitration Agreement
unenforceable, that portion will not be effective and the remainder of this
Arbitration Agreement will remain in effect. The Federal Arbitration Act will
govern the proceedings and interpretation of this Arbitration Agreement. A party
to the arbitration may enter a judgment on the arbitration award in any court of
competent jurisdiction.
This Arbitration Agreement does not limit, impair, or waive any defenses
of any party, including the statute of limitations, and nothing in this Agreement
prevents you or any other person from contacting regulatory or administrative
agencies in relation to services the Facility provides. This Arbitration Agreement
binds all parties to this Agreement and their spouses, heirs, representatives,
executors, administrators, successors, and assigns, as applicable. After this
Agreement terminates, this Arbitration Agreement shall remain in effect for the
resolution of all future Disputes between the parties.”
¶7 The contract specifies that its term was one year, subject to automatic annual
renewals, unless either party terminated the contract. Additionally, the contract would terminate
upon decedent being transferred or discharged from the facility. In the event of decedent’s death,
the contract would “terminate automatically,” either when decedent’s family removed her personal
belongings from her room or 15 days after the death.
¶8 Attachment E to this contract is an arbitration and limitation of liability rider that
decedent signed separately. This rider provides, in relevant portion:
“1. The parties agree the disputes identified in Article 2, below, between:
a) the Resident or his/her spouse, heirs or assigns; and b) Facility or its affiliates,
officers, directors, agents, license holders, managers, or employees, shall be
submitted to binding arbitration, as provided below, and shall not be filed in a court
of law.
. The disputes subject to arbitration in accordance with this Rider, include:
(a) all claims or controversies arising out of or in any way relating
to the Agreement, but not involuntary transfer and discharge proceedings,
eviction proceedings, or matters that are properly filed in a small claims
court or with the State Agency;
(b) the Resident’s stay at the Facility, but not administrative
involuntary termination or involuntary transfer or discharge proceedings,
eviction proceedings, or matters that are properly filed in a small claims
court or with the State Agency;
(c) the services rendered for any condition, and any dispute arising
out of the diagnosis, treatment, or care of the Resident;
(d) disputes involving amounts in controversy greater than
$150,000.00; or
(e) disputes regarding interpretation of this Rider[.]
The enumerated disputes will be subject to this Rider whether arising out of
State or federal law, whether existing or arising in the future, whether for statutory,
compensatory or punitive damages and whether sounding in breach of contract, tort
or breach of statutory duties, irrespective of the basis for the duty or the legal
theories upon which the claim is asserted.
The parties to this Rider further understand that Claims, including
malpractice claims, cannot be brought in a lawsuit in court before a judge or jury
and that a jury will not decide their case.
. This Rider shall be governed by and interpreted under the Federal
Arbitration Act ***. In the event that it is determined that the [Federal Arbitration
Act] is inapplicable, the parties desire that this agreement be interpreted under the
applicable Illinois law so as to give effect to the parties’ intent. Further, nothing in
this Rider is to be construed to contradict any applicable Illinois statutory grievance
or mediation procedure. ***
***
. The arbitration proceedings shall be held in accordance with the rules
and procedures as outlined in the National Arbitration Forum’s Code of Procedure.
In the event that the National Arbitration Forum is unable or unwilling to arbitrate
the dispute, the parties agree that the dispute shall be arbitrated before a nationally
recognized arbitration organization pursuant to its code of conduct.
. The arbitrator’s decision shall be final and binding without the right to
appeal.
***
13. This Arbitration Provision *** shall survive the death of the Resident.
. This Rider shall remain in effect after the expiration of the underlying
Agreement and shall apply to all renewal Agreements.” (Emphasis in original.)
¶9 Exhibit B to defendant’s motion also contains numerous references to federal
programs. However, Exhibit B does not indicate whether defendant ultimately received any
payments through federal programs in connection with decedent’s care. Additionally, there is a
provision in the contract stating, “The Facility accepts Medicaid Recipients and individuals who
qualify for assistance under the VA Program, but this does not in any way guarantee that the
Resident with qualify [sic] or Facility will always be a participating provider in the programs.”
Another provision says that “[t]he Facility’s present participation in the Medicare Program does
not in any way guarantee that the Resident will qualify for Medicare or that the Facility will always
be a participating provider in the Medicare Program.”
¶ 10 Defendant did not submit any affidavits in support of its motion.
[SEGMENT 34]
¶ 11 B. Plaintiff’s Response to Defendant’s Motion
¶ 12 Plaintiff opposed defendant’s request for arbitration. According to plaintiff, [CITATION],
established that wrongful death claims are not assets of a decedent’s estate and thus are not subject to an arbitration agreement signed by a decedent.
Relying on [CITATION], plaintiff asserted that defendant could not compel arbitration of count II of his
complaint.
¶ 13 With respect to counts I and III of his complaint, plaintiff invoked sections 3-606
and 3-607 of the Nursing Home Care Act (210 ILCS 45/3-606, 3-607 (West 2022)). Section 3-606
provides that “[a]ny waiver by a resident or his legal representative of the right to commence” a
nursing home negligence action “shall be null and void, and without legal force or effect.” 210
ILCS 45/3-606 (West 2022). Section 3-607 specifies that provisions in nursing home contracts
waiving the right to a jury trial for negligence claims are “null and void, and without legal force
or effect.” 210 ILCS 45/3-607 (West 2022). Plaintiff conceded that these two statutes “might
arguably be preempted by the Federal Arbitration Act.” However, plaintiff contended that
preemption did not apply here, as defendant failed to show that decedent’s contract with defendant
evidenced a transaction involving commerce. See 9 U.S.C. § 2 (2018) (stating that the Federal
Arbitration Act applies to contracts “evidencing a transaction involving commerce”). Specifically,
plaintiff argued that defendant failed to meet its burden under section 2-619 of the Code, as
defendant “fail[ed] to present any argument or evidence, by affidavit or other evidentiary materials,
to support that the agreement involves a transaction involving interstate commerce.”
¶ 14 C. Defendant’s Reply
¶ 15 In its reply brief, defendant again argued in support of its motion to dismiss that
decedent’s contract was valid and that plaintiff’s claims were subject to arbitration. Defendant
contended that the Federal Arbitration Act preempts sections 3-606 and 3-607 of the Nursing
Home Care Act. However, defendant did not specifically address plaintiff’s point about whether
the decedent’s contract evidenced a transaction involving commerce.
¶ 16 Defendant continued to maintain, without any additional argument, that plaintiff’s
wrongful death claim was subject to arbitration. Evidently as an alternative to that argument,
defendant proposed that the trial court should stay litigation of count II of plaintiff’s complaint
while the parties arbitrated counts I and III.
¶ 17 D. The Trial Court’s Ruling
¶ 18 On October 21, 2022, the trial court granted defendant’s motion. The court found
that decedent freely and voluntarily entered into a contract with defendant. Additionally, the court
noted that the contract unambiguously contained a mutual promise to arbitrate claims. Presumably
referencing plaintiff’s arguments based on sections 3-606 and 3-607 of the Nursing Home Care
Act, the court asserted that the Federal Arbitration Act preempts state laws that invalidate
arbitration agreements “simply because the[y] waive a party’s right to file a lawsuit.” The court
found “a valid and enforceable agreement to arbitrate the claims at issue in Plaintiff’s Complaint.”
Accordingly, the court dismissed the complaint with prejudice and compelled arbitration of all
claims.
¶ 19 E. Appeal and Abeyance
¶ 20 Plaintiff filed a timely notice of appeal. After the parties filed their briefs, on our
own motion, we held consideration of the appeal in abeyance pending our supreme court issuing
a decision in [CITATION]. We anticipated that the supreme court would address a
disagreement within the appellate court as to whether an arbitration agreement in a nursing home
contract is enforceable when the contract also contains a “termination-on-death” clause. Although
the parties here have never raised this precise issue, given the parties’ general dispute about the
enforceability of the arbitration agreement that decedent signed, we deemed it provident to await
a decision in [CITATION].
¶ 21 On September 21, 2023, our supreme court filed its decision in [CITATION]. The court made clear that arbitration contracts
should be interpreted like any other contracts. [CITATION], ¶ 30. According to the
court, parties are free to draft a contract to exclude an arbitration provision from the contract’s
general termination-on-death provisions. [CITATION], ¶ 35. In the present case, both
the arbitration clause in the main body of the contract and the arbitration rider unambiguously state
that the arbitration agreement survives the termination of the contract. Thus, we saw no need to
request additional briefing from the parties regarding the applicability of Clanton.
¶ 22 II. ANALYSIS
¶ 23 On appeal, plaintiff argues that the trial court erroneously granted defendant’s
motion to dismiss and to compel arbitration. The parties debate two issues: (1) whether the Federal
Arbitration Act preempts sections 3-606 and 3-607 of the Nursing Home Care Act under the facts
of this case, thus requiring arbitration of counts I and III of plaintiff’s complaint, and (2) whether
the wrongful death claim in count II is beyond the scope of any arbitration agreement signed by
decedent.
¶ 24 “ ‘A motion to compel arbitration is essentially a section 2-619(a)(9) motion to
dismiss or stay an action in the trial court based on an affirmative matter, the exclusive remedy of
arbitration.’ ” [CITATION], ¶ 28 (quoting [CITATION], ¶ 21). In ruling on
this motion, “the court must interpret all pleadings and supporting documents in the light most
favorable to the nonmoving party.” [CITATION], ¶ 28. “We review the trial
court’s decision de novo because the court heard no evidence and considered only argument, which
the parties restate on appeal.” [CITATION], 567 (2009).
¶ 25 A. Whether Decedent’s Contract Evidenced a
Transaction Involving Commerce
¶ 26 The parties seem to agree that, unless preempted by federal law, sections 3-606 and
3-607 of the Nursing Home Care Act invalidate decedent’s agreement to arbitrate the claims in
counts I and III of plaintiff’s complaint.
¶ 27 To come within the scope of the Federal Arbitration Act, a contract containing an
arbitration agreement must evidence “a transaction involving commerce.” 9 U.S.C. § 2 (2018).
When a contract is subject to the Federal Arbitration Act, that act preempts state laws that
discriminate specifically against arbitration agreements; however, a state law is not preempted if
it applies equally to all contracts. [CITATION];
9 U.S.C. § 2 (2018) (specifying that contracts falling within the scope of the Federal Arbitration
Act are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract”).
¶ 28 In [CITATION], our supreme court
held that sections 3-606 and 3-607 of Illinois’s Nursing Home Care Act are not “ ‘grounds as exist
at law or in equity for the revocation of any contract.’ ” The effect of this holding is that if the
Federal Arbitration Act applies in a given case, that act preempts sections 3-606 and 3-607. In
rendering its decision, our supreme court “assume[d] arguendo” that the subject nursing home
contract evidenced a transaction involving commerce and thus was subject to the Federal
Arbitration Act. [CITATION]. Our supreme court determined that the contract’s
connection to commerce was “an issue that should be addressed by the appellate court on remand.”
[CITATION].
¶ 29 On remand, the appellate court held, inter alia, that a detailed affidavit submitted
by the defendant demonstrated the subject nursing home contract’s connection to commerce.
[CITATION]. When the case
subsequently returned to the supreme court on other issues, the plaintiff did not challenge the
appellate court’s determination about the contract’s connection to commerce. [CITATION]. Thus, the supreme court again “proceed[ed] from the premise that, as held by the
- 10 - appellate court and expressly stated in the arbitration agreements, the [Federal Arbitration Act]
governs the agreements.” [CITATION], ¶ 16.
¶ 30 Against this backdrop, plaintiff argues that the Federal Arbitration Act does not
apply here—and thus does not preempt sections 3-606 and 3-607 of the Nursing Home Care Act
in this case—as decedent’s contract did not evidence a transaction involving interstate commerce.
Specifically, plaintiff emphasizes that defendant failed to provide affidavits describing how the
subject contract evidenced a transaction involving commerce. To that end, plaintiff notes that
section 2-619(a) of the Code says that grounds for dismissal not appearing on the face of the
complaint “shall be supported by affidavit.” 735 ILCS 5/2-619(a) (West 2022). Plaintiff then
emphasizes that, unlike the defendant in [CITATION], defendant here did not provide an affidavit detailing the contract’s
connections to commerce. See [CITATION] (likewise noting that the defendant
filed an affidavit outlining the contract’s specific connections to commerce).
¶ 31 In response to plaintiff’s arguments, defendant notes that “the Federal Arbitration
[SEGMENT 35]
Act does not explicitly require an affidavit to satisfy the interstate commerce requirement.”
Defendant also mentions that decedent’s arbitration agreement specified that it was governed by
the Federal Arbitration Act. Furthermore, defendant contends that decedent’s contract has at least
“a slight nexus to” interstate commerce. Defendant reasons that “[t]he nursing home industry is
heavily regulated by the federal government, and is involved in the expenditure of Medicaid funds,
which are supplied by the federal government.” Additionally, without citing the record, defendant
asserts that it “receives out-of-state insurance payments as well as Medicare payments on behalf
of residents, and purchases medical equipment and medical supplies from vendors outside of
- 11 - Illinois.” Defendant further notes that Exhibit B to its motion contained references to defendant
accepting payments through Medicaid.
¶ 32 We hold that defendant’s motion to dismiss and to compel arbitration did not
comply with Illinois procedural law. Section 2-619(a) of the Code provides that grounds for
dismissal not appearing on the face of the challenged pleading “shall be supported by affidavit.”
735 ILCS 5/2-619(a) (West 2022). Defendant plainly did not comply with this requirement. In its
appellee’s brief, defendant does not argue that the subject nursing home contract’s connection to
commerce appears on the face of plaintiff’s complaint. Yet defendant submitted no affidavit in
support of its motion to dismiss and compel arbitration. While defendant asserts that the Federal
Arbitration Act does not expressly require affidavits, that does not excuse defendant from
complying with the rule of Illinois civil procedure that defendant invoked in seeking to dismiss
the complaint. Additionally, whether the Federal Arbitration Act applies here is a disputed
threshold issue.
¶ 33 Illinois courts that have addressed the commerce requirement have had the benefit
of detailed affidavits specifying the agreements’ particular connections to commerce. In [CITATION],
the defendant nursing home submitted an affidavit explaining that it
(1) received Medicare and Medicaid benefits for 15% of its residents, (2) received out-of-state
insurance payments and Medicare payments on behalf of the plaintiff, and (3) purchased supplies,
equipment, and medication from out-of-state vendors. In [CITATION],
the defendant nursing home submitted an affidavit attesting that (1) Medicare paid the
defendant $8667.99 for the decedent’s nursing care, (2) the defendant worked with an out-of-state
intermediary company to procure those Medicare payments, (3) in a two-year period, the defendant
- 12 - had received more than $9.3 million in Medicare and Medicaid funds, and (4) the defendant
received supplies and services from out-of-state companies.
¶ 34 Here, by contrast, even though plaintiff argued below that defendant failed to
demonstrate that the subject contract evidenced a transaction involving commerce, defendant did
not address that issue until this appeal. We recognize that the Supreme Court of the United States
has said Congress intended to exercise its “commerce power to the full” in enacting the Federal
Arbitration Act. [CITATION] However,
defendant has not demonstrated that the subject contract evidences a transaction involving
commerce. Defendant cites Exhibit B to its motion in support of its assertion that it generally
accepted payments through the Medicaid program. However, the record does not show what
percentage of defendant’s facility’s residents were on Medicaid during the time period relevant to
the complaint or how much money defendant received through Medicaid. Furthermore, the record
does not indicate whether defendant ultimately received any payments through any federal
programs in connection with decedent’s care. The contract decedent signed specifically warned
her there were no guarantees she would qualify for federal programs or that defendant’s facility
would continue to be a participating provider in federal programs. The record likewise does not
indicate whether defendant contracted with out-of-state vendors to provide care for decedent.
Thus, the factors that led the courts in [CITATION] and [CITATION] to hold
that specific nursing home contracts evidenced transactions involving commerce are absent from
our record. It is inappropriate for this court to fill the evidentiary gap by making broad assumptions
about the nursing home industry.
¶ 35 Defendant asserts that the documents decedent signed specified that the arbitration
agreement was governed by the Federal Arbitration Act. However, defendant does not cite any
- 13 - authority holding that this is dispositive of the issue of whether the contract evidences a transaction
involving commerce. Defendant having failed to present a cogent argument on this point supported
by citations to authority, we decline to hold that the contract decedent signed evidenced a
transaction involving commerce merely because the contract referenced the Federal Arbitration
Act. We note there is authority that could support an argument against defendant’s position. For
example, the nursing home contracts in both Carter and Fosler said that disputes would be
governed by the Federal Arbitration Act, yet the reviewing courts looked to the facts established
in affidavits when addressing whether the contracts evidenced transactions involving commerce.
See [CITATION].
Additionally, the Supreme Court of the United States has described the connection to commerce
as a “limitation[ ] on the enforceability of arbitration provisions governed by the Federal
Arbitration Act.” [CITATION]. There is some out-of-state
authority directly holding that even where an agreement says it is governed by the Federal
Arbitration Act, the party seeking to enforce arbitration still must prove the contract evidences a
transaction involving commerce. [CITATION].
¶ 36 At oral argument, defendant’s counsel raised some additional points that were
neither argued below nor included in the appellee’s brief. For example, counsel mentioned that
plaintiff’s complaint alleged that defendant violated a federal regulation. Illinois Supreme Court
Rule 341(h)(7), (i) (eff. Oct. 1, 2020), which applies to both appellants and appellees, provides
that parties may not raise new points at oral argument. Forfeiture aside, defendant still has not
provided a persuasive excuse for failing to comply with section 2-619(a) of the Code. Certainly,
defendant had the option of taking the approach of other nursing homes when invoking the Federal
- 14 - Arbitration Act and submitting an affidavit outlining the contract’s specific connections to
commerce. See [CITATION].
¶ 37 Accordingly, defendant has not demonstrated that the Federal Arbitration Act
applies here to preempt sections 3-606 and 3-607 of the Nursing Home Care Act in this case. Thus,
sections 3-606 and 3-607 of the Nursing Home Care Act invalidate any agreement signed by
decedent to arbitrate the claims in counts I and III of plaintiff’s complaint. Under these
circumstances, we hold that the trial court erroneously dismissed and compelled arbitration of
counts I and III.
¶ 38 B. Count II: The Wrongful Death Claim
¶ 39 The only other issue is whether count II of plaintiff’s complaint, which alleges
wrongful death, is subject to an arbitration agreement signed by decedent. In [CITATION], our supreme court held that a wrongful death claim is not subject to an arbitration
agreement signed by a decedent. This was so even though the arbitration agreement in [CITATION]
purported to bind the decedent’s heirs and the executor of her estate. [CITATION].
Defendant argues that [CITATION] dictates a different result than [CITATION]. However, our supreme court specifically
considered and addressed [CITATION]. See [CITATION] (“Defendant’s
reliance on the Supreme Court’s recent decision in [CITATION], as a basis for compelling arbitration
of the wrongful-death claim, is misplaced.”). We have no authority to overrule our supreme court.
[CITATION]. Thus, count II of plaintiff’s complaint is not subject to
arbitration.
¶ 40 III. CONCLUSION
- 15 - ```
¶ 41 For the reasons stated, we reverse the trial court’s judgment and remand the cause
to that court for further proceedings.
¶ 42 Reversed and remanded.
- 16 - [CITATION]
Decision Under Review: Appeal from the Circuit Court of Ford County, No. 22-LA-2; the
Hon. Matthew John Fitton, Judge, presiding.
Attorneys Jonathan T. Nessler, of the Law Offices of Frederic W. Nessler &
for Associates, Ltd., of Springfield, for appellant.
Appellant:
Attorneys Karie J. Valentino, Siobhán M. Murphy, and Alishba N. Malik, of
for Lewis Brisbois Bisgaard & Smith LLP, of Chicago, for appellee.
Appellee:
- 17 -
2024 IL App (4th) 230513
FILED
February 1, 2024
NO. 4-23-0513 Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
LUANN MIKOFF, Special Administrator of the Estate of ) Appeal from the
Bonnie Stone, Deceased, ) Circuit Court of
Plaintiff-Appellant, ) Jersey County.
v. ) No. 22LA11
UNLIMITED DEVELOPMENT, INC., and )
JERSEYVILLE MANOR, ) Honorable
Defendants-Appellees. ) Allison Lorton,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court, with opinion.
Justice Harris specially concurred, with opinion.
Presiding Justice Turner concurred in part and dissented in part, with opinion.
[SEGMENT 36]
OPINION
¶1 In July 2022, plaintiff Luann Mikoff, as special administrator of the estate of her
late mother Bonnie Stone (decedent), filed a complaint against defendants, Unlimited
Development, Inc., and Jerseyville Manor, a skilled nursing facility (Facility), alleging that
defendants were responsible for decedent’s premature death from COVID-19 contracted while
under their care. In September 2022, defendants filed a motion to stay the proceedings and compel
arbitration pursuant to the terms of the parties’ arbitration agreement. In January 2023, the Jersey
County circuit court entered a written order granting defendants’ motion to compel arbitration.
Plaintiff’s motion to vacate and set aside that order was denied in May 2023. ¶2 Plaintiff now appeals, contending (1) this court has jurisdiction of her appeal,
(2) the circuit court erred by not holding an evidentiary hearing, (3) the arbitration agreement was
not enforceable once the decedent passed away, (4) the arbitration agreement’s language is vague
and ambiguous, (5) the court applied the wrong version of federal nursing home regulations,
(6) only parties to the arbitration agreement may be bound by it, (7) the arbitration agreement was
procedurally unconscionable, and (8) the arbitration agreement was substantively unconscionable.
¶3 For the reasons stated below, we affirm the circuit court’s referral of decedent’s
claims under the Survival Act (755 ILCS 5/27-6 (West 2022)) to arbitration, but we reverse the
referral of the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2022)) claims to arbitration
and remand for further proceedings as to those claims.
¶4 I. BACKGROUND
¶5 On September 7, 2019, decedent was admitted to the Facility, which was owned
and/or operated by defendant, Unlimited Development, Inc. Plaintiff was decedent’s agent under
both medical and financial powers of attorney, and she signed the documents in her representative
capacity. The documents included both an admissions contract and arbitration agreement; the latter
began by stating:
“Without limiting any rights set forth in other provisions of this
AGREEMENT, any and all disputes arising hereunder shall be submitted to binding
arbitration and not to a court for determination. Arbitration shall commence after
written notice is given from either party to the other, such arbitration shall be
accomplished expeditiously in the county and state where the property which is the
subject of this AGREEMENT is located, and shall be conducted in accordance with
the rules of the American Arbitration Association (‘AAA’).”
Elsewhere, the arbitration agreement further stated:
“Notwithstanding the parties[’] intent to submit any controversy or claim
arising out of or relating to this AGREEMENT or any other document signed or
initialed in connection with this AGREEMENT to arbitration, in the event that a
court of competent jurisdiction shall determine or a relevant law shall provide that
a particular dispute is not subject to the arbitration provisions of this Section, then
the parties agree to the following provisions: ***.”
The admission contract plaintiff signed along with the arbitration agreement provided, in pertinent
part, the following: “The term of the contract shall commence on the day the Resident enters the
Facility and terminate the day the Resident is discharged, subject however to the following
provisions ***.”
¶6 On August 9, 2020, the 91-year-old decedent was hospitalized with COVID-19;
she died on August 17, 2020. In July 2022, plaintiff filed a complaint against defendants, seeking
to recover for decedent’s death. In the complaint’s introduction, plaintiff stated she was bringing
her cause of action in accordance with the Wrongful Death Act [CITATION] and the Survival Act [CITATION]. Plaintiff asserted four separate counts asserting claims of negligence
and willful and wanton misconduct, two against each defendant. The counts contended defendants
owed a duty to the decedent based on the Nursing Home Care Act [CITATION] and the Illinois Administrative Code.
¶7 In September 2022, defendants filed a motion to compel arbitration and stay the
proceedings, based on the terms of the arbitration agreement. Defendants attached a copy of the
admission contract, the arbitration agreement, a portion of the decedent’s medical power of
attorney, and plaintiff’s complaint. The motion also included a supporting affidavit executed by
Dana Bainter, the Facility’s administrator, and a supporting memorandum.
¶8 Plaintiff argued in response that the motion should be denied because (1) execution
of the arbitration agreement cannot be made part of the signing of the admissions document, (2) the
arbitration agreement is overly vague and ambiguous, (3) a healthcare power of attorney does not
grant authority to execute an agreement to arbitrate, and (4) defendants failed to establish the
arbitration agreement was substantively and procedurally conscionable. In the alternative, plaintiff
requested defendants’ motion be deferred until the completion of discovery. Plaintiff also
submitted a supplemental filing in opposition to arbitration, which is not included in the record on
appeal.
¶9 Defendants filed a reply, which attached, inter alia, the decedent’s complete
medical power of attorney and her financial power of attorney, both of which named plaintiff as
decedent’s agent.
¶ 10 On January 19, 2023, the circuit court held a hearing on defendants’ motion to
compel arbitration. Neither party presented testimony, but defendants’ counsel noted the
documents attached to their pleadings. On January 24, 2023, the court entered its written order
granting defendants’ motion to compel arbitration and stay the proceedings. The order required
plaintiff to arbitrate any and all claims against the defendants and stayed the proceedings during
the pendency of arbitration. Specifically, the court found an arbitration agreement can be part of a
nursing home admission contract, and matters involving scope or interpretation of the arbitration
agreement have been delegated to the arbitrator.
¶ 11 On February 22, 2023, plaintiff filed a motion to vacate and set aside the order
staying the proceedings and referring all claims to arbitration. Plaintiff asserted that the circuit
court’s order was erroneous for the following reasons: (1) the arbitration agreement was
procedurally and substantively unconscionable, (2) the healthcare power of attorney did not give
plaintiff the power to waive the decedent’s right to a jury trial, (3) the arbitration agreement
violates a federal nursing home regulation ([CITATION]), (4) the arbitration
agreement was impermissibly overbroad in its attempt to limit the court’s authority to interpret the
same, and (5) the arbitration agreement was vague and ambiguous and its terms must be strictly
construed against defendants. Plaintiff also pointed out that paragraph A of the admission contract
stated it terminated on the date the resident is discharged from the facility, which she argued was
decedent’s date of death (August 17, 2020). Plaintiff argued that the termination of the admission
contract would also end the enforceability of the arbitration agreement. Defendants filed a response
to plaintiff’s motion to vacate. Plaintiff replied to defendants’ arguments, and defendants again
responded.
¶ 12 On May 12, 2023, the circuit court held a hearing on plaintiff’s motion to vacate,
after which the court found the arbitration agreement was properly formed and an evidentiary
hearing was not required. The court then entered a written order denying plaintiff’s motion.
¶ 13 On June 8, 2023, plaintiff filed a notice of appeal from both the January 24, 2023,
and May 12, 2023, orders. Our jurisdiction of the appeal is addressed in the analysis section.
¶ 14 The resolution of this case requires us to address several different issues. Aside
from defendants’ motion to dismiss the appeal and some preliminary matters, the main issues for
resolution here are as follows: (1) whether, under Illinois law, has a contract for arbitration of
plaintiff’s claims been formed; and (2) if so, under federal law, who resolves questions about the
expiration, interpretation, and application of the arbitration agreement, the circuit court or the
arbitrator?
¶ 15 II. ANALYSIS
¶ 16 A. Motion to Dismiss the Appeal
¶ 17 Defendants filed a motion to dismiss plaintiff’s appeal, asserting that (1) plaintiff
failed to comply with Illinois Supreme Court Rule 307 (eff. Nov. 1, 2017) and (2) this court lacks
jurisdiction to address the appeal. Plaintiff filed an objection. We took the motion with the case.
¶ 18 Under Rule 307(a), “the appeal must be perfected within 30 days from the entry of
the interlocutory order,” and an Illinois Supreme Court Rule 328 (eff. July 1, 2017) supporting
record “must be filed in the Appellate Court within the same 30 days unless the time for filing the
Rule 328 supporting record is extended by the Appellate Court or any judge thereof.” Ill. S. Ct. R.
307(a) (Nov. 1, 2017); see 5 ILCS 70/1.11 (West 2022) (due date cannot fall on a Saturday,
Sunday, or legal holiday). Thus, the supporting record should have been filed on or before Monday,
June 12, 2023. On June 15, 2023, plaintiff filed a motion for an extension of time to file the
[SEGMENT 37]
supporting record, which this court granted, allowing plaintiff until August 4, 2023, to file the
supporting record. Plaintiff filed the supporting record on July 21, 2023.
¶ 19 While our supreme court has stated its rules are not suggestions and must be
followed, both the supreme court and this court have exercised discretion in determining whether
an appeal should be dismissed for noncompliance with its rules that are not jurisdictional. See
[CITATION], ¶¶ 36-37 (declining to strike
the appellant’s brief for noncompliance with Illinois Supreme Court Rule 341(h) (eff. Oct. 1, 2020)
because it did not hinder the court’s review); [CITATION], 737 (1999)
(noting that “[i]t is within this court’s discretion to strike the plaintiffs’ brief and dismiss the appeal
for failure to comply with Rule 341”). Defendants do not cite any authority indicating the timely
filing of a Rule 328 supporting record is a jurisdictional requirement; the only authority they cite
is a 1976 special concurrence finding that Rule 307’s language that “ ‘the record must be filed’
within the designated time is necessarily mandatory,” based on “[t]he former practice prior to
January 1, 1964.” [CITATION] Here, plaintiff filed a request for an extension three days after the
expiration of the 30-day period. Plaintiff then filed the record within the extended time period.
Plaintiff’s three-day delay in requesting an extension of time to file the supporting record did not
hinder our review of the appeal, and, thus, we find plaintiff’s noncompliance with Rule 307’s time
period for filing the supporting record does not warrant dismissal of her appeal.
¶ 20 Defendants also contend this court lacks jurisdiction over plaintiff’s appeal because
more than 30 days passed between the circuit court’s January 24, 2023, order and the filing of
plaintiff’s notice of appeal; they further assert that the May 12, 2023, order was not an appealable
order. Plaintiff disagrees, contending the appeal is possible under either Illinois Supreme Court
Rule 307(a)(1) (eff. Nov. 1, 2017) or Illinois Supreme Court Rule 303 (eff. July 1, 2017).
¶ 21 “An appellate court is under a duty to consider its jurisdiction and to dismiss an
appeal if jurisdiction is lacking.” [CITATION]. Accordingly, this court must determine the question of its jurisdiction prior to
deciding the appeal’s merits. Id. We begin by examining Rule 307(a)(1).
¶ 22 Rule 307(a)(1) provides that an appeal may be taken to this court from an
interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify
an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2017). The rule has been interpreted as follows:
“Rule 307(a)(1) permits interlocutory appeals from four types of orders:
(1) orders that deny (i.e., refuse) injunctions; (2) orders that create (i.e., grant)
injunctions; (3) orders that change the effects of (i.e., modify or dissolve) existing
injunctions; and (4) orders that perpetuate the effects of (i.e., refuse to modify or to
dissolve) existing injunctions.” [CITATION]
Under Illinois law, an order compelling arbitration is considered an injunctive order and thus an
appealable interlocutory order under category (2) of Rule 307(a)(1). [CITATION] Consequently, the denial
of a motion for reconsideration of an order compelling arbitration falls under category (4) as an
order that refuses to dissolve an injunction. An order refusing to compel arbitration falls under
category (1) as an order that denies an injunction. However, an order denying reconsideration of a
refusal to compel arbitration cannot fall under category (3) or (4) because there is no preexisting
injunction in place. [CITATION] In [CITATION], the Second District of the Appellate Court faced the
question of whether such an order effectively denies an injunction and thus is appealable under
category (2). [CITATION] The court concluded that the order was not appealable. [CITATION]
¶ 23 Defendants assert the [CITATION] decision should not be followed because it runs afoul
of the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq. (2024)). In [CITATION], the United States Supreme Court reaffirmed
that the FAA preempts “any state rule discriminating on its face against arbitration,” as well as
rules that covertly accomplish the same objective. However, the [CITATION] decision does not
discriminate against arbitration either facially or covertly because its reasoning did not depend on
the fact that the injunctive relief being sought was an order compelling arbitration. [CITATION] (addressing “the imminent burdens of an injunction”); see [CITATION]
(examining [CITATION], a case
involving mortgages rather than arbitration). As such, we find that [CITATION] is arbitration neutral
and does not run afoul of the FAA.
¶ 24 In this case, the circuit court’s January 24, 2023, order was an injunctive order
because it granted defendants’ motion to compel arbitration and stay the proceedings. Thereafter,
the court’s May 12, 2023, order refused to dissolve an existing injunction by denying plaintiff’s
motion to vacate the January 24, 2023, order. As such, both orders were appealable under Rule
307(a)(1). [CITATION]. Plaintiff’s notice of appeal was filed on June 8, 2023,
which was within the 30-day period for filing an appeal under Rule 307(a) for the May 12, 2023,
order. Accordingly, we have jurisdiction over the appeal from the court’s May 12, 2023, order and
deny defendants’ motion to dismiss plaintiff’s appeal. Because we have jurisdiction under Rule
307(a), we need not address plaintiff’s alternative argument under Rule 303.
¶ 25 B. Preliminary Matters
¶ 26 Before reaching the merits of the issues presented, we must address two preliminary
matters: (1) whether the circuit court erred by not conducting an evidentiary hearing and (2) the
appropriate standard of review.
¶ 27
. Evidentiary Hearing
¶ 28 Plaintiff argues that the circuit court erred by failing to conduct an evidentiary
hearing before referring this case to arbitration. Plaintiff suggests that an evidentiary hearing is
required by section 2(a) of the Uniform Arbitration Act (710 ILCS 5/2(a) (West 2022)), but that
section simply states that the court should “proceed summarily” if there is a dispute about the
existence of an agreement to arbitrate. Plaintiff also cites section 2 of the FAA (9 U.S.C. § 2
(2024)) and federal regulations (42 C.F.R. § 483.70 (2016)), but she fails to identify what language
in these provisions provides for an evidentiary hearing.
¶ 29 In this case, the circuit court held a hearing on January 19, 2023, and no party at
the hearing sought to present additional evidence. All parties had the opportunity to attach
supporting documents to their proceedings, but only defendants did so. After considering the
parties’ arguments and defendants’ supporting material, the court made a summary determination.
As such, we do not find plaintiff’s citation to [CITATION] persuasive because the court there “failed to make a substantive
determination of any of [the factual and legal] issues when it entered its order.” Moreover, we note
that “ ‘[a] party cannot sit idly by while the trial court undertakes a course of action and then allege
error in that regard.’ ” [CITATION] Plaintiff did just that by
failing to attempt to present any evidence in support of her position. We find no abuse of discretion
in regard to how the hearing was conducted.
¶ 30
. Standard of Review
¶ 31 Where, as here, there was no evidentiary hearing below and the motion to compel
arbitration was decided on the basis of the parties’ written submissions, the appropriate standard
of review is de novo. [CITATION]
¶ 32 C. Application of the FAA in Illinois Courts
¶ 33 Resolution of this case requires us to apply both Illinois law and federal law to
different aspects of the analysis. The applicable federal law is the FAA, which was enacted by
Congress “in response to judicial hostility to arbitration.” [CITATION] “The basic purpose of the FAA is to overcome
the historical reluctance of courts to enforce agreements to arbitrate.” [CITATION] Section 2 of the FAA provides as follows:
- 10 - “A written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, or the refusal to perform the whole or
any part thereof, or an agreement in writing to submit to arbitration an existing
controversy arising out of such a contract, transaction, or refusal, shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity
[SEGMENT 38]
for the revocation of any contract ***.” 9 U.S.C. § 2.
It has long been established that “the FAA applies in state as well as federal court and preempts
conflicting state laws.” [CITATION].
¶ 34 “The division of labor between courts and arbitrators is a perennial question in cases
involving arbitration clauses.” [CITATION].
This is especially challenging when the arbitration clause contains a delegation clause, which is
“an agreement to arbitrate threshold issues concerning the arbitration agreement.” [CITATION].
The United States Supreme Court has recognized
“parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties
have agreed to arbitrate or whether their agreement covers a particular controversy.” [CITATION].
Unless the party opposing arbitration specifically challenges the delegation clause, the court must
treat it as valid and enforce it, leaving any challenge to the validity of the arbitration agreement as
a whole for the arbitrator. [CITATION]. Similarly, “a challenge to the validity of the contract as a
whole, and not specifically to the arbitration clause, must go to the arbitrator.” [CITATION].
- 11 -
====== End of Part of Court Ruling ====== ¶ 35 That is not to say that there is no role for a court to play when it is asked to enforce
an arbitration agreement. “Even the most sweeping delegation cannot send the contract-formation
issue to the arbitrator, because, until the court rules that a contract exists, there is simply no
agreement to arbitrate.” [CITATION]; see [CITATION] (noting that “where the
dispute at issue concerns contract formation, the dispute is generally for courts to decide”). The
United States Supreme Court has stated, “The issue of the contract’s validity is different from the
issue whether any agreement between the alleged obligor and obligee was ever concluded.”
[CITATION] (noting that whether the contract was ever signed, or whether the
signor had the authority and mental capacity to assent, were contract formation issues that could
be addressed by the court).
¶ 36 Consequently, based on the foregoing, we must decide (1) under Illinois law,
whether a contract for arbitration was formed and, if so, (2) under the FAA, whether federal law
requires that the arbitrator address any other disputes between the parties.
¶ 37
. Formation of an Arbitration Agreement
¶ 38 Where, as here, a party challenges the formation of an arbitration agreement, it is a
question going “to the making of the agreement to arbitrate” and may be adjudicated by the court.
[CITATION] This is entirely consistent with what the United States Supreme Court has identified as
“the ‘first principle’ of [its] FAA jurisprudence: that ‘[a]rbitration is strictly “a matter of
consent.” ’ ” [CITATION] (quoting [CITATION], quoting [CITATION]). Defendants here concede that the circuit court was entitled to examine
questions of contract formation.
- 12 - ¶ 39 As noted above, the question of whether the parties formed a contract for arbitration
is one to be determined according to Illinois law. The analysis may differ, however, depending on
which type of claim is being examined. Consequently, our contract formation analysis looks
separately at the question of whether there was a valid contract formed for arbitration of the
decedent’s claims brought under the Survival Act, as opposed to the claims of the next of kin under
the Wrongful Death Act.
¶ 40 a. Decedent’s Claims Under the Survival Act
¶ 41 With respect to the issues of contract formation, plaintiff argues that decedent’s
medical power of attorney did not vest her with the authority to agree to enter into a contract for
arbitration on decedent’s behalf. However, plaintiff completely ignores the fact she was also the
decedent’s financial power of attorney, and defendants submitted both powers of attorney in
support of their motion to compel arbitration. Thus, even if plaintiff was not authorized to agree
to arbitration as the decedent’s agent under the medical power of attorney, she may have been
authorized under the financial power of attorney.
¶ 42 Plaintiff has completely failed to address her authority under the financial power of
attorney as a basis for execution of the agreement to arbitrate. Indeed, at oral argument, counsel
suggested that no such document was part of the record or argued below; both statements are flatly
incorrect.
“A reviewing court is entitled to have issues clearly defined with pertinent authority
cited and cohesive arguments presented [CITATION], and it is not a repository into
which an appellant may foist the burden of argument and research [CITATION]; it is
neither the function nor the obligation of this court to act as an advocate or search
- 13 - the record for error.” (Internal quotation marks omitted.) [CITATION]
¶ 43 Accordingly, as to decedent’s direct claims made under the Survival Act, plaintiff
has failed to show she was not authorized to sign the arbitration agreement. As such, the circuit
court’s determination that “an agreement to arbitrate was properly formed” was not erroneous.
¶ 44 b. Wrongful Death Claims
¶ 45 Plaintiff argues that the circuit court could not refer the wrongful death claims to
arbitration because “neither a resident [n]or his agent has the authority to bind heirs asserting a
wrongful death claim,” citing [CITATION].
¶ 46 Though lengthy, plaintiff’s complaint is exceedingly confusing as to what claims
are being brought. For example, each claim asserts in its final paragraph that it is brought pursuant
to the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2022)). Just as clearly, however,
the introductory declaration of the complaint states that it is brought “in accordance with the
Illinois Wrongful Death Act (740 ILCS 180.01) and Survival Act (755 ILCS 5/27-6).” The prayer
in each count also requests “all elements of damages permitted under 740 ILCS 180.01,” i.e., the
Wrongful Death Act. If the motion before the circuit court had been one directed at the sufficiency
of the pleadings, sorting out these errors would be in order. In the instant context, however, the
initial question is simply whether plaintiff’s complaint represents an attempt to bring a claim under
the Wrongful Death Act; though her complaint may be defective in form, plaintiff’s intention to
bring such a claim is clear.
¶ 47 The real parties in interest in a wrongful death claim are the decedent’s next of kin.
[CITATION] There are references to decedent’s “family” in
plaintiff’s complaint, but the next of kin are not specifically identified. However, defendants
- 14 - concede that plaintiff is decedent’s daughter, so at least her status as one of decedent’s next of kin
is known. While it is true that plaintiff signed the admission and arbitration agreements, she did so
only in a representative capacity for decedent. Thus, there is nothing in the record to show that any
arbitration agreement was ever formed between defendants and decedent’s next of kin in an
individual capacity.
¶ 48 The supreme court’s decision in [CITATION] controls the determination of whether the
wrongful death claims must be sent to arbitration. In a case with facts similar to those at issue here,
the supreme court held that wrongful death claims arising out of the death of a nursing home
resident were not subject to an arbitration agreement to which the wrongful death beneficiaries
were not parties:
“For purposes of count I of the complaint, which alleges a violation of the
Nursing Home Care Act by defendant pursuant to our survival statute, plaintiff is
bound to arbitrate that claim, which had already accrued to Gott prior to death and
which is brought for the benefit of Gott’s estate. For purposes of count II, the
wrongful-death action, plaintiff is not acting in Gott’s stead. As already discussed,
a wrongful-death action does not accrue until death and is not brought for the
benefit of the decedent’s estate, but for the next of kin who are the true parties in
interest. Plaintiff, as Gott’s personal representative in the wrongful-death action, is
merely a nominal party, effectively filing suit as a statutory trustee on behalf of the
next of kin. [CITATION.] Plaintiff is not prosecuting the wrongful-death claim on
behalf of Gott, and thus plaintiff is not bound by Gott’s agreement to arbitrate for
purposes of this cause of action.” [CITATION], ¶ 57.
- 15 -
====== End of Ruling ====== ¶ 49 The supreme court’s decision in [CITATION] was made after full consideration of the
application of the FAA. The conclusion that the beneficiaries could not be bound by an agreement
to which they were not parties is consistent with the “first principle” of FAA jurisprudence: that
arbitration is strictly a matter of consent. [CITATION]. In any
event, the supreme court’s decision in [CITATION] binds us here and requires that we reverse the
circuit court’s order sending the wrongful death claims to arbitration.
¶ 50
. Referral of Survival Act Claims to Arbitration
¶ 51 Despite the formation of an arbitration agreement between the parties that would
apply to the Survival Act claims, plaintiff advances a number of arguments against referral of those
claims to arbitration: (1) the existence of a federal regulation that came into effect after the signing
of the agreement, (2) state law contract defenses she contends must be resolved by the circuit court,
[SEGMENT 39]
and (3) the application of the contract’s termination on “discharge” language, which she contends
was triggered by the decedent’s death and thus defeats the arbitration agreement. There can be no
doubt that courts are perfectly capable of addressing and resolving issues such as these, but the
question is whether the parties have contractually agreed that they would be resolved by the
arbitrator, and not by a court. In this context, the delegation clause in the parties’ agreement is of
critical importance.
¶ 52 A delegation clause is a provision in an arbitration agreement that clearly and
unmistakably gives the arbitrator the exclusive authority to resolve any dispute about the validity
and enforceability of the arbitration agreement. [CITATION]. Here, the
contract recites the parties’ agreement that “any disputes arising hereunder shall be submitted to
binding arbitration and not to a court.” The agreement further provides that the arbitration “shall
be conducted in accordance with the rules of the American Arbitration Association (‘AAA’).” The
- 16 - AAA’s rules provide that the arbitrator “shall have the power to determine the existence or validity
of a contract of which an arbitration clause forms a part” and that “an arbitration clause shall be
treated as an agreement independent of the other terms of the contract.” Consumer Arbitration
Rules, Am. Arbitration Ass’n, at 17 (eff. Sept. 1, 2014),
https://adr.org/sites/default/files/Consumer%20Rules.pdf [https://perma.cc/43K2-39PH];
Commercial Arbitration Rules and Mediation Procedures, Am. Arbitration Ass’n, at 13 (eff. Oct.
1, 2013), https://adr.org/sites/default/files/Commercial%20Rules.pdf [https://perma.cc/UXK5-
LCJU].
¶ 53 As discussed above, it is clear that an agreement to arbitrate has been formed.
Consequently, all of the issues raised by plaintiff—including the question of whether the
decedent’s death constitutes a “discharge” terminating the agreement—are issues the parties have
already agreed will be decided by the arbitrator. “When the parties’ contract delegates the
arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in
the contract.” [CITATION]. This is true even if the court considers the dispute being referred to arbitration as
“wholly groundless,” as this “confuses the question of who decides arbitrability with the separate
question of who prevails on arbitrability.” Id. at ___, 139 S. Ct. at 531.
¶ 54 Were we simply construing the parties’ agreement under Illinois contract law, we
would not be troubled by the fact that the arbitration agreement was on a document separate from
the admission agreement to which it relates; we would apply the established rule that “instruments
executed at the same time, by the same parties, for the same purpose, and in the course of the same
transaction are regarded as one contract and will be construed together.” [CITATION]. “[A]s a matter of substantive federal arbitration law” under the FAA,
- 17 - however, “an arbitration provision is severable from” the arbitration clause itself. [CITATION]
This “arbitration law applies in state as well as federal courts,” meaning that “unless
the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by
the arbitrator in the first instance.” [CITATION] Consequently, while the parties disagree about
whether the admission agreement has terminated as a result of the decedent’s death, there is no
argument that the arbitration agreement terminated as a result of a provision specific to it. Because
plaintiff asserts the termination of the agreement as a whole, and not of the arbitration agreement
in particular, the dispute is one the arbitrator must address.
¶ 55 Plaintiff’s reliance on [CITATION], for the opposite conclusion is entirely understandable. However, [CITATION] only
superficially appears to have addressed the issues presented here. In [CITATION], the contract provided
that it terminated “ ‘immediately upon the resident’s death.’ ” Id. ¶ 5. The contract here, however,
terminates on “discharge.” Whether death constitutes a “discharge” that triggers termination of the
contract is a question of contract interpretation, and “matters of contract interpretation are for an
arbitrator to decide initially.” [CITATION]
It is also unclear whether the arbitration agreement at issue in [CITATION] had a delegation clause.
¶ 56 More fundamentally, [CITATION] never addressed—and was not asked to address1 —
the impact of the FAA. Here, on the other hand, the preclusive effect of the FAA constitutes the
The parties in [CITATION] did not mention the FAA as part of their case on appeal. See Brief of Appellants, at
10-11, [CITATION] (No. 129067), https://ilcourtsaudio.blob.core.windows.net/antilles-
resources/resources/4a056dea-abcd-4573-a60b-234b9feb3852/129067_ATB.pdf [https://perma.cc/WV4Q-V3KP]
(referencing only “the strong federal policy favoring the use and enforceability of arbitration agreements”); Brief of
Appellee, [CITATION] (No. 129067), https://ilcourtsaudio.blob.core.windows.net/antilles-
resources/resources/bae893b0-85e8-4166-a994-7e279b463cb3/129067_AEB.pdf [ https://perma.cc/8VBJ-DRFG ]
(making no reference to federal law); Reply Brief of Appellants, [CITATION] (No. 129067),
https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/8518b1ae-6d46-4517-965d-
c82239db3009/129067_RPB.pdf [https://perma.cc/9GJC-HLK4] (same).
- 18 - heart of defendants’ position on appeal. We are mindful that this court has a duty to apply the
supreme court’s precedent to the facts of the case before us; when the supreme court has declared
the law on any point, it alone can overrule and modify its previous opinion. [CITATION]. It is also true, however, that “ ‘[a] judicial opinion is a response to the issues
before the court *** [and] must be read in the light of the issues that were before the court for
determination.’ ” [CITATION] (quoting [CITATION]). Because [CITATION] does not address application of the FAA to the issues
presented in that case, our FAA analysis addresses matters that the supreme court was never asked
to consider. As explained above, the FAA analysis is crucial to the outcome of this case.
¶ 57 Similarly, in [CITATION], this court interpreted essentially identical language in an arbitration agreement and
concluded that the patient’s death triggered the termination on “discharge” provision and
effectively ended the arbitration agreement. One could validly distinguish [CITATION] from this case by
noting that the question of whether there had been a “discharge” was conceded there, while here
it is not. While a plausible distinction, it does not go far enough, as it fails to account for more
fundamental differences between the analysis in [CITATION] and the one we have undertaken here. The
court in [CITATION] never addressed any of the applicable United States Supreme Court precedent
establishing that, under the federal law applicable here, it is our duty to defer all other matters to
the arbitrator once we find that an arbitration agreement has been validly formed. See [CITATION] (courts must examine
the question of arbitrability by applying the “ ‘federal substantive law of arbitrability, applicable
to any arbitration agreement within the coverage of the Act,’ ” (quoting [CITATION])). The question of whether the
- 19 - decedent’s death constitutes a “discharge” that terminates the contract is one squarely within the
delegation clause, so it must be answered by the arbitrator.
¶ 58 Plaintiff argues that the FAA does not preempt state law contract defenses, citing
[CITATION], and [CITATION]. These cases do not support plaintiff’s argument. In [CITATION]
, the supreme court addressed not a defense to contract formation, but the separate question of
whether the parties had formed an agreement to arbitrate at all; as explained above, this is an issue
for the court to decide. See [CITATION]. Here, on the other hand, the formation
of the arbitration agreement is established. In [CITATION], ¶ 15-17, the
defense of unconscionability was raised against the arbitration agreement specifically, not against
the contract as a whole, and the court had the authority to conclude that the arbitration agreement
was unconscionable. See [CITATION] (explaining the “separate enforceability of
arbitration provisions”). Moreover, the arbitration agreement in [CITATION] did not include a
separate delegation provision (see [CITATION], ¶ 4); otherwise, even this
challenge would have been referred to the arbitrator under the delegation provision. Here, plaintiff
is challenging the contract as a whole, not the arbitration agreement or the delegation provision.
[SEGMENT 40]
¶ 59 In short, because plaintiff has not “challenged the delegation provision
specifically,” we are obligated to give it and the arbitration agreement full effect. See [CITATION] (finding the court must treat the delegation provision as valid and enforce
it unless the party opposing arbitration challenged the delegation provision specifically).
¶ 60 III. CONCLUSION
¶ 61 For the reasons stated, we affirm the Jersey County circuit court’s May 12, 2023,
order denying plaintiff’s motion to vacate and set aside the court’s January 24, 2023, order
- 20 - compelling arbitration of the claims brought pursuant to the Survival Act. We reverse the court’s
order insofar as it compelled the arbitration of the Wrongful Death Act claims and remand as to
those claims. On remand, the circuit court retains discretion to either proceed to litigation of the
Wrongful Death Act claims or stay those proceedings pending the outcome of the arbitration of
the Survival Act claims. See [CITATION].
¶ 62 Affirmed in part and reversed in part.
¶ 63 Cause remanded with directions.
¶ 64 JUSTICE HARRIS, specially concurring:
¶ 65 I agree with the majority analysis and disposition. I write separately to address my
concurrence in [CITATION]. As has
already been discussed, this court in [CITATION] addressed similar circumstances and claims on appeal
but reached a different result. In [CITATION], we found that upon the resident’s discharge, the
residential contract, including the arbitration provision and delegation clause, ceased to exist. Id.
¶ 48. Based on a finding that the entire contract, including the arbitration provision, was
terminated, we concluded the circuit court had correctly denied the defendants’ motion to compel
arbitration.
¶ 66 However, after further consideration, I am persuaded by defendants’ argument in
this case that after a court has determined that an arbitration agreement, such as the agreement here
and the one in [CITATION], was formed, any other issue relating to the existence or enforceability of the
arbitration agreement is reserved for the arbitrator to decide. This is owing to the preclusive effect
of the agreement’s delegation clause on a court’s authority to decide. Under the
circumstances here, like in [CITATION], the FAA and United States Supreme Court precedent compels
the conclusion that if a valid delegation clause exists, issues regarding arbitrability are reserved
for the arbitrator, not the court. [CITATION]. The existence of an unchallenged delegation clause in this case
means the question whether the resident’s death constituted a “discharge” was to be answered by
the arbitrator.
¶ 67 PRESIDING JUSTICE TURNER, concurring in part and dissenting in part:
¶ 68 I would affirm the circuit court’s judgment in toto. The matter of what parties and
claims are bound by the arbitration agreement is a question of arbitrability and is not related to the
formation of the arbitration agreement itself. Here, we have a valid nursing home admission
contract with an addendum containing an arbitration agreement. Plaintiff does not dispute the
arbitration agreement contains a broad delegation clause. As such, all matters of arbitrability,
including what claims are bound by the arbitration agreement (scope/enforceability), are questions
for the arbitrator to decide.
¶ 69 As the majority explains, even with a delegation clause, the circuit court determines
whether the arbitration agreement was formed. Supra ¶ 35. Despite the circuit court finding an
agreement to arbitrate was properly formed and delegating to the arbitrator the other contentions
raised by plaintiff in response to defendants’ motion to compel arbitration, plaintiff, the appellant,
simply realleges her same arguments she raised in the circuit court on appeal and does not develop
any arguments as to why those issues should be decided by a court and not the arbitrator.
Defendants contend the court properly found an arbitration agreement was formed, given the
decedent’s powers of attorney, and then asserted all of plaintiff’s other issues were matters for the
arbitrator under the delegation clause. Plaintiff did not respond to defendants’ aforementioned
contention. As such, plaintiff never argued on appeal her wrongful death claims could be
considered by the court because those claims were matters of contract formation and not
arbitrability. On page 25 of her brief, plaintiff asserts, even with “an enforceable arbitration
- 22 - agreement,” that agreement could not be “enforced” against those who did not sign the agreement,
which is an arbitrability challenge. See [CITATION] (stating questions of arbitrability include enforceability, scope, or
applicability of the parties’ arbitration agreement). The majority should not have crafted a contract
formation argument for plaintiff, who was the appellant and had the burden of presenting
developed arguments to this court. This court is “entitled to have the issues on appeal clearly
defined with pertinent authority cited and a cohesive legal argument presented.” (Emphases added
and internal quotation marks omitted.) [CITATION]. Regardless, the majority’s analysis is flawed.
¶ 70 In finding it could address the arbitrability of plaintiff’s wrongful death claims
because that issue was one of contract formation, the majority finds our supreme court’s decision
in [CITATION] is controlling. There, the supreme court addressed two challenges to
the arbitrability of the plaintiff’s claims. See [CITATION]. However, no contract
formation issues related to the two arbitration agreements were before the supreme court. See
[CITATION]. Specifically, contract formation involves an offer, an acceptance,
and consideration ([CITATION])), and no challenges to those elements were raised against the two arbitration agreements in
[CITATION]. The arbitrability challenges were properly before the court because the arbitration
agreement in that case did not contain a delegation clause. [CITATION]. Without
a delegation clause in an arbitration agreement, “gateway matters of arbitrability” are for the court
to determine. [CITATION]. Thus, the issue before the supreme court in
[CITATION] was whether the plaintiff’s wrongful death claims were bound by the two existing
- 23 - arbitration agreements or, stated differently, whether the two arbitration agreements applied to or
were enforceable against the plaintiff’s wrongful death claims. See [CITATION],
¶ 56. While the supreme court examined who were the parties to the two arbitration agreements in
answering that question in the negative ([CITATION], ¶ 56), the supreme court did
not in any way indicate the question presented was one of contract formation and not a matter of
arbitrability. I note the [CITATION] analysis frequently refers to whether the plaintiff was “bound” by
the agreements to arbitrate, indicating an issue of enforceability/applicability of the existing
arbitration agreements. See [CITATION], ¶¶ 54, 56-57. The [CITATION] decision may
control the issue of whether the arbitration agreement in this case is enforceable against plaintiff’s
purported wrongful death claims, but that decision is for the arbitrator, given the delegation clause
in the arbitration agreement.
¶ 71 The majority’s jumping to the merits of the arbitrability issue, despite a valid
delegation clause, was expressly rejected by the United State Supreme Court in [CITATION]. There, the Supreme Court addressed the propriety of some
courts deciding the arbitrability question themselves, where the argument “the arbitration
agreement applies to the particular dispute [was] ‘wholly groundless.’ ” [CITATION]. In rejecting that approach, the Supreme Court noted, “Just as a
court may not decide a merits question that the parties have delegated to an arbitrator, a court may
not decide an arbitrability question that the parties have delegated to an arbitrator.” [CITATION]. Here, the majority precisely does what the United States
Supreme Court has enjoined.
¶ 72 Here, plaintiff does not develop any argument disputing the circuit court’s finding
the arbitration agreement’s applicability to her wrongful death claims was a question of
- 24 - arbitrability delegated to the arbitrator. Accordingly, I would affirm the circuit court’s finding the
question of whether the wrongful death claims were bound by the arbitration agreement was one
for the arbitrator.
¶ 73 Likewise, I note my disagreement with this court’s recent analysis in [CITATION]. There, in direct contravention of Henry Schein, Inc., the analysis entirely
ignored the appellant’s argument the circuit court erred by failing to enforce a delegation clause in
the arbitration agreement. Instead, this court only addressed the merits of one of the arbitrability
arguments. [CITATION], ¶¶ 25-26. Moreover, regardless of the existence of a
delegation clause in [CITATION], a challenge to the validity of the contract as a whole, such as seeking to
enforce a termination upon death clause in the nursing home admission contract, is a matter for
the arbitrator and not the court. See [CITATION] (noting unless the challenge is
specifically to the arbitration provision, the issue of the contract’s validity is considered by the
arbitrator). As such, the effect of the termination-upon-death clause in the admission contract on
the arbitration agreement in [CITATION] was a matter for the arbitrator.
- 25 - [CITATION]
Decision Under Review: Appeal from the Circuit Court of Jersey County, No. 22-LA-11;
the Hon. Allison Lorton, Judge, presiding.
Attorneys Lanny Darr, of Darr Law Offices, Ltd., of Alton, for appellant.
for
Appellant:
[SEGMENT 41]
Attorneys Donna J. Fudge, of Fudge Broadwater, P.A., of St. Petersburg,
for Florida, for appellees.
Appellee:
- 26 -
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
2023 IL 129067
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 129067)
NANCY CLANTON, as Independent Administrator of the Estate of Laurel J. Jansen,
Deceased, Appellee v. OAKBROOK HEALTHCARE CENTRE, LTD., et al., Appellants.
Opinion filed September 21, 2023.
JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Cunningham, and
Rochford concurred in the judgment and opinion.
Justice Holder White took no part in the decision.
OPINION
¶1 Plaintiff, Nancy Clanton, as the independent administrator of the estate of the
decedent, Laurel Jansen, brought an action against defendants, Oakbrook
Healthcare Centre, Ltd., Lancaster, Ltd., and May Flor Andora, R.N. The complaint
alleged that Jansen was negligently cared for in a nursing facility, suffered injuries
as a result, and subsequently died from her injuries. Defendants filed a motion to
compel arbitration pursuant to the contract for admission to the nursing facility. The
Cook County circuit court denied the motion to compel, and the First District
affirmed. 2022 IL App (1st) 210984.
¶2 On appeal to this court, defendants contend that the denial by the trial court of
their motion to compel arbitration under the nursing facility contract was erroneous.
For the reasons that follow, we affirm the judgment of the appellate court affirming
the denial of defendants’ motion to compel arbitration.
¶3 BACKGROUND
¶4 Plaintiff’s complaint alleges that Jansen was a resident at a skilled nursing
facility operated by Oakbrook Healthcare, commonly known as Oak Brook Care,
from July 19, 2019, through September 17, 2019. On August 9, 2019, Debbie
Kotalik, as Jansen’s power of attorney (POA) for healthcare, signed a “Contract
Between Resident and Facility” with Oakbrook Healthcare for Jansen’s admission
and residency at the nursing facility.
¶5 Relevant to this action, the contract provides:
“E. Dispute Resolution/Punitive Damages
1. Civil Disputes Subject To This Paragraph. Resident and Facility agree
that all civil claims arising in any way out of this Agreement, other than
claims by Facility to collect unpaid bills for services rendered, or to
involuntarily discharge Resident, shall be resolved exclusively through
mandatory mediation, and, if such mediation does not resolve the dispute,
through binding arbitration using the commercial mediation and arbitration
rules and procedures of JAMS/Endispute in its Chicago, Illinois office.
2. Punitive/Treble Damages Waived. Resident and Facility also agree
that both Resident and Facility shall seek only actual damages in any such
mediation or arbitration, and that neither of them will pursue any claim for
punitive damages, treble damages or any other type of damages the purpose
of which are to punish one party in an amount greater than the actual
damages allegedly caused by the other party.
-2-
F. Term and Termination
***
1. If the resident is compelled by a change in physical or mental health
to leave the facility, this Contract shall terminate on 7 days’ notice or
immediately upon the resident’s death. The resident may terminate the
Contract on 30 days’ notice to the facility.”
¶6 According to the complaint, Jansen suffered several falls while a resident at
Oak Brook Care, resulting in injuries that contributed to or caused Jansen’s death.
After Jansen’s death, plaintiff filed a complaint against defendants. The complaint
pleads four counts against Oakbrook Healthcare. Count I alleges violations of the
Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2018)). Count II alleges
a common-law negligence claim, and count III alleges wrongful death. Count VIII
asserts a res ipsa loquitur negligence claim. The complaint also alleges negligence
and wrongful death claims against Lancaster (counts IV and V) and Andora (counts
VI and VII). Counts I, II, IV, VI, and VIII are brought pursuant to the Survival Act
(755 ILCS 5/27-6 (West 2018)), while counts III, V, and VII are brought pursuant
to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2018)).
¶7 Defendants filed a motion to compel mediation and/or arbitration of counts I,
II, VI, and VIII pursuant to section E of the contract (hereinafter the arbitration
clause), to dismiss those counts with prejudice, and to stay the remaining counts.
In response, plaintiff contended that defendants had waived their right to mediate
and/or arbitrate by participating in litigation for nearly a year, that the arbitration
clause was procedurally and substantively unconscionable, and that Kotalik, as
Jansen’s POA for healthcare, lacked the authority to execute an arbitration clause
on Jansen’s behalf.
¶8 The trial court denied defendants’ motion. The trial court concluded that
defendants did not waive their right to enforce the arbitration clause and the
arbitration clause was not procedurally unconscionable. However, the trial court
held that the provision in section E(2) of the nursing facility contract was
substantively unconscionable because it waived plaintiff’s entitlement to punitive
or treble damages, effectively limiting plaintiff’s ability to recover attorney fees.
The trial court declined to exercise its discretion to sever the limitation on damages
-3-
from the rest of the dispute resolution provision of section E and found that the
entire dispute resolution provision was unenforceable.
¶9 Defendants filed an interlocutory appeal pursuant to Illinois Supreme Court
Rule 307(a)(1) (eff. Nov. 1, 2017). Defendants argued that the trial court erred in
finding the contract substantively unconscionable and, if a portion of the contract
was unconscionable, the trial court erred in not severing that portion. In response,
plaintiff argued that defendants waived the ability to rely on the arbitration clause
in the contract and the trial court correctly concluded that the arbitration clause was
substantively unconscionable. Plaintiff also argued a number of other grounds upon
which the appellate court could affirm the denial of defendants’ motion, including
that the arbitration clause was procedurally unconscionable, Kotalik lacked
authority to enter into the arbitration clause on Jansen’s behalf, and the arbitration
clause terminated and was ineffective upon Jansen’s death pursuant to section F(1)
of the contract. The last ground was not raised in the trial court.
¶ 10 The appellate court agreed with the trial court that defendants’ litigation
conduct did not amount to a waiver of their right to invoke the arbitration clause.
2022 IL App (1st) 210984, ¶ 51. It also concluded that it was not precluded from
considering plaintiff’s argument that the arbitration clause terminated upon
Jansen’s death since an appellee may raise an issue not presented to the trial court
to sustain a judgment, as long as the factual basis for the issue was before the trial
court. Id. ¶ 54. Interpreting the plain language of the contract, the court found that
section F(1) of the contract, the termination-on-death provision, applied and that
the contract, including the arbitration clause, was no longer enforceable at the time
the action was commenced. Id. ¶ 58. It rejected defendants’ argument that the entire
contract did not terminate upon the death of a resident, finding that conclusion
would require the court to read limitations or exceptions into the contract. Id. ¶ 60.
¶ 11 The appellate court rejected defendants’ reliance on the Fourth District’s
opinion in Mason v. St. Vincent’s Home, Inc., 2022 IL App (4th) 210458, and
recognized the conflict. 2022 IL App (1st) 210984, ¶ 63. In Mason, the Fourth
District construed a nursing facility contract similar to the contract at issue in this
case—containing both a broad arbitration clause and a termination-on-death clause.
Relying on Carter v. SSC Odin Operating Co., 2012 IL 113204, the Fourth District
concluded that the arbitration clause was valid, even in light of the termination-on-
-4-
death clause, on the basis that Survival Act claims accrue prior to the decedent’s
death, so the arbitration provision was valid when the cause of action accrued. 2022
IL App (1st) 210984, ¶¶ 66-67. The appellate court below disagreed with the
reasoning of Mason, distinguishing Carter on the facts because this court in Carter
did not have reason to construe the effect of a termination-on-death clause. Id. ¶ 68.
More importantly, the court found that the Mason court’s approach did not give
effect to the termination clause’s plain and unequivocal language and essentially
created an exception to the termination clause. Id. ¶ 69. The court concluded that
the contract terminated upon Jansen’s death, at which time the arbitration clause
was no longer enforceable, and affirmed the trial court’s denial of the motion to
compel mediation and/or arbitration of counts I, II, VI, and VIII. Id. ¶¶ 74-75. The
court also affirmed the denial of defendants’ request to stay the remaining counts.
The matter was remanded for further proceedings in accordance with the appellate
court’s decision. Id. ¶ 82.
¶ 12 This court granted defendants’ petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. Oct. 1, 2021).
¶ 13 ANALYSIS
¶ 14 Defendants argue that the negligence and Nursing Home Care Act claims are
brought under the Survival Act and are assets of the decedent’s estate that accrued
prior to death, so they should be arbitrated under the contract’s arbitration clause.
Defendants contend that the termination-on-death clause in the contract does not
change the result since the cause had already accrued prior to decedent’s death.
¶ 15 Plaintiff argues that the entire contract did not survive decedent’s death and
defendants have no contract to enforce, because the parties agreed it terminated
upon death. Since the termination-on-death clause was triggered before the claim
was brought, arbitration as a forum under the contract was not available, and the
only available forum was the court. If the nursing facility had intended to exclude
the arbitration clause from the termination clause, it should have stated as much in
the contract.
¶ 16 Defendants rely primarily upon our decision in Carter, contending that Carter
establishes that claims brought under the Survival Act are always assets of the
-5-
decedent’s estate that accrue prior to death and, as such, are subject to arbitration
clauses in effect at the time the actions giving rise to the claims occurred. Plaintiff
argues that Carter did not involve a termination-on-death clause and the only thing
decided in Carter was that the contractual arbitration provision did not apply to the
wrongful death claim, since that claim accrued to the beneficiaries after a resident’s
death. Thus, we begin our analysis by examining our opinion in Carter.
¶ 17 I. Carter v. SSC Odin Operating Co.
¶ 18 In Carter, the special administrator of a decedent’s estate filed a complaint
against a nursing home, asserting claims of negligence and wrongful death. Carter,
2012 IL 113204, ¶ 4. The nursing home filed a motion to compel arbitration
pursuant to arbitration agreements executed at the time of the decedent’s admission
to the nursing home. Id. Upon review of the denial of the motion to compel, this
court addressed plaintiff’s argument that the wrongful death claim was not subject
to arbitration since plaintiff was not a party to the arbitration agreements; rather,
one of the arbitration agreements was signed by the decedent, and the other was
signed by the plaintiff as the decedent’s legal representative. Id. ¶ 30. To better
explain a wrongful death action, this court contrasted wrongful death actions with
survival actions. Id. ¶ 34. While a wrongful death action is a new cause of action
that does not accrue until death, “the Survival Act simply allows a representative
of the decedent to maintain those statutory or common law actions that had already
accrued to the decedent prior to death.” Id. (citing Wyness v. Armstrong World
Industries, Inc., 131 Ill. 2d 403, 410-12 (1989)); see 755 ILCS 5/27-6 (West 2018)
(“In addition to the actions which survive by the common law, the following also
survive: actions of replevin, actions to recover damages for an injury to the person
***.”).
“ ‘A survival action allows for recovery of damages for injury sustained by the
deceased up to the time of death; a wrongful death action covers the time after
death and addresses the injury suffered by the next of kin due to the loss of the
deceased rather than the injuries personally suffered by the deceased prior to
death.’ ” Carter, 2012 IL 113204, ¶ 34 (quoting Wyness, 131 Ill. 2d at 410).
¶ 19 We held in Carter that, although the Wrongful Death Act describes a wrongful-
death action as an “asset of the deceased estate” (740 ILCS 180/2.1 (West 2018)),
-6-
it is not a “true asset of the deceased’s estate” that the decedent could limit via an
arbitration agreement. Carter, 2012 IL 113204, ¶¶ 42, 46. The “asset” label in
section 2.1 of the Wrongful Death Act was one of purpose: it was “intended to
facilitate the filing and prosecution of a wrongful-death claim,” not “to allow the
deceased to control the forum and manner in which a wrongful-death claim—in
which the deceased has no interest—is determined.” Id. ¶ 44. Applying “common
law principles governing all contracts,” this court concluded that the plaintiff was
not bound by the decedent’s agreement to arbitrate the wrongful death claim. Id.
¶¶ 46, 60. As for the claim alleging a violation of the Nursing Home Care Act,
which was brought pursuant to the Survival Act, “[the] plaintiff is bound to arbitrate
that claim, which had already accrued to [the decedent] prior to death and which is
brought for the benefit of [the decedent’s] estate.” Id. ¶ 57.
¶ 20 Extrapolating from this reasoning from Carter, defendants contend that,
because the Survival Act claims accrued at a time when the contract was still in
effect (prior to Jansen’s death), the arbitration clause was still in effect at that point
in time. Because the termination-on-death provision had not yet been triggered, the
survival claims were subject to arbitration. This is the interpretation adopted by the
Fourth District in Mason.
¶ 21 In Mason, the plaintiff, the decedent’s son, had signed a nursing home contract
for services on the decedent’s behalf. Mason, 2022 IL App (4th) 210458, ¶ 1. After
the decedent’s death, the plaintiff brought suit for injuries suffered by the decedent
against the nursing home defendants. The trial court stayed the claims brought
pursuant to the Wrongful Death Act and compelled arbitration of the negligence
and Nursing Home Care Act claims pursuant to the arbitration clause in the
contract. Id. The Fourth District affirmed. Id. ¶ 2.
¶ 22 The arbitration clause in the Mason nursing home contract provided, in relevant
part, that
“ ‘any action, dispute, claim, or controversy related to the quality of health care
services provided pursuant to this Contract (e.g., whether in contract or in tort,
statutory or common law, legal or equitable, or otherwise) now existing or
hereafter arising between Resident and St. Vincent’s, any past, present or future
incidents, omissions, acts, errors, practices or occurrence causing injury to
either party whereby the other party or its agents, employees or representatives
-7-
may be liable, in whole or in part, or any other aspect of the past, present, or
future relationships between the parties shall be resolved by binding arbitration
administered by an arbitrator approved by Resident and St. Vincent’s.’ ” Id.
¶ 21.
¶ 23 The contract at issue in Mason also provided: “ ‘In the event of Resident’s
death, this Contract terminates automatically.’ ” Id. ¶ 4. In interpreting the contract,
the Mason court concluded that, even with the termination-on-death clause, the
contractual arbitration clause was valid when the cause of action accrued. Id. ¶ 45.
The termination clause was not triggered at the time the alleged negligence
occurred, since those actions occurred prior to the decedent’s death. In reaching this
conclusion, the Mason court correctly noted Carter’s holding that the Survival Act
allowed a decedent’s representative to maintain statutory or common-law actions
that had accrued prior to the decedent’s death. Id. ¶ 44 (citing Carter, 2012 IL
113204, ¶ 34). The Mason court then acknowledged that Carter did not involve a
termination-on-death clause but concluded that such a clause would not change the
result. Id. The Mason court stated that “[t]he language of the arbitration clause does
not suggest it is inapplicable to claims that accrued before the resident’s death but
were brought after the resident’s death.” Id. ¶ 45.
¶ 24 Plaintiff contends that Carter is inapposite because Carter did not interpret a
contract that contained a termination-on-death clause. Carter did not implicitly
hold that the arbitration of claims under the Survival Act was governed by a
contract that existed prior to the decedent’s death even in the face of a termination-
on-death clause. Plaintiff further argues that the Fourth District in Mason
improperly expanded the holding in Carter. The Mason court’s analysis was
incorrect because it added language not contained in the agreement: despite the
clear and unequivocal language of the termination-on-death clause that the contract
“shall terminate ‘immediately upon the resident’s death,’ ” Mason added an
exception not contained in the termination-on-death clause.
¶ 25 We agree with plaintiff that Carter is not definitive regarding the current issue
before this court. As the appellate court below concluded, Carter decided whether
survival and wrongful death actions were arbitrable under the agreement in that
case, i.e., the proper party plaintiffs for the different claims and the proper forums
under the applicable contract. Carter did not address the application of a
-8-
termination-on-death clause. To the extent that Mason holds that all claims brought
pursuant to the Survival Act, but brought after the decedent’s death, are subject to
arbitration despite a termination-on-death clause, it is overruled. Rather, the
question of whether defendants have a right to arbitrate any claims under the terms
of the admission contract is essentially a straightforward question of contract
interpretation. Thus, we will look to the provisions of the contract, in light of our
well-established rules of contract interpretation.
¶ 26 II. Interpretation of the Contract
¶ 27 Plaintiff argues that the appellate court properly concluded that the clear and
unambiguous language of the contract dictates that the termination-on-death clause
terminated the entire agreement, including the arbitration provision, when Jansen
died. Without an enforceable arbitration provision, defendants have no grounds to
demand the arbitration forum. If defendants had intended the arbitration clause to
survive the resident’s death despite the termination-on-death clause, the burden was
on them, as the proponents of the contract, to explicitly state that exception.
¶ 28 Defendants respond that Jansen’s death terminated defendants’ contractual duty
to provide personal services to Jansen but that the provisions of the contract (i.e.,
“all civil claims arising in any way out of this Agreement”) make it clear that
defendants did not intend to terminate the arbitration provision upon Jansen’s death.
¶ 29 While public policy favors arbitration as a method of dispute resolution, an
agreement to arbitrate is nevertheless a matter of contract. United Cable Television
Corp. v. Northwest Illinois Cable Corp., 128 Ill. 2d 301, 306 (1989). “The parties
to an agreement are bound to arbitrate only those issues which by clear language
and their intentions expressed in the language show they have agreed to arbitrate.”
Rauh v. Rockford Products Corp., 143 Ill. 2d 377, 387 (1991). “[A]rbitration
agreements cannot be extended by construction or implication.” Id.
¶ 30 The terms of an agreement to arbitrate are determined using ordinary contract
principles. Bess v. DirecTV, Inc., 381 Ill. App. 3d 229, 234 (2008). As with all
contracts, the primary objective is to determine and give effect to the intent of the
parties at the time they entered into the contract. Thompson v. Gordon, 241 Ill. 2d
428, 441 (2011) (citing Gallagher v. Lenart, 226 Ill. 2d 208, 232 (2007)). The first
-9-
place a court looks to determine the parties’ intent is the language of the contract,
considering the whole contract, not just a provision in isolation. Id. “In the absence
of an ambiguity, the intention of the parties at the time the contract was entered into
must be ascertained by the language utilized in the contract itself, not by the
construction placed upon it by the parties.” Lenzi v. Morkin, 103 Ill. 2d 290, 293
(1984).
¶ 31 In this case, the order denying the motion to compel arbitration, where there
was no evidentiary hearing or findings of fact, raises purely legal issues that are
reviewed de novo. Carter, 2012 IL 113204, ¶ 14; In re Marriage of Dynako, 2021
IL 126835, ¶ 15 (“Contract interpretation is also a question of law, so our review
proceeds de novo.”).
¶ 32 Generally, a contract survives the death of a party. In re Estate of Bajonski, 129
Ill. App. 3d 361, 366-67 (1984). There are exceptions, however, such as when the
contract requires the continued existence of a particular person or thing for its
performance. Id. at 367; see also People ex rel. Palmer v. Peoria Life Insurance
Co., 376 Ill. 517, 521 (1941) (“In contracts which require the continued existence
of the particular person or thing, the destruction or death of that person or thing will
terminate the agreement.”). Defendants contend that, although their obligation to
provide personal services to Jansen under the contract terminated upon Jansen’s
death, the dispute resolution provision of the same contract remained enforceable
after Jansen’s death. Defendants contend that this is the construction of the
admission contract that “ ‘harmonizes all the various parts so that no provision is
deemed conflicting with, or repugnant to, or neutralizing of any other.’ ” Zannis v.
Lake Shore Radiologists, Ltd., 73 Ill. App. 3d 901, 906 (1979) (quoting Coney v.
Rockford Life Insurance Co., 67 Ill. App. 2d 395, 399 (1966)).
¶ 33 Here, the parties contracted to use arbitration as the forum. Since the contract
language is unambiguous, we have no need to look to extrinsic evidence to interpret
the parties’ intent. See Thompson, 241 Ill. 2d at 441 (clear and unambiguous words
in a contract are to be given their plain and ordinary meaning and a court only looks
to extrinsic evidence if the contract language is ambiguous); see also Air Safety,
Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999) (that a written agreement
speaks for itself and the intent of the parties thereto is determined from the language
used is known as the “four corners” rule). A contract is not rendered ambiguous
- 10 -
just because the parties disagree regarding its meaning. Central Illinois Light Co.
v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004). Rather, it is rendered
ambiguous when the contract language “is susceptible to more than one meaning
or is obscure in meaning.” Wolff v. Bethany North Suburban Group, 2021 IL App
(1st) 191858, ¶ 37.
¶ 34 Pursuant to the plain language of the contract, the parties contracted to use
arbitration as the forum but only up until the point of the resident’s death. By the
express terms of the contract, once the resident died, the contract ceased to exist,
including the forum provision. We find that this interpretation of the contract
harmonizes and gives effect to all provisions of the contract and does not render
any language superfluous. The contract in this case is unambiguous and does not
contain an exception to the arbitration clause; it must be read as written. See
Thompson, 241 Ill. 2d at 449 (a court may not alter, modify, or add new terms to a
contract (citing Gallagher v. Lenart, 367 Ill. App. 3d 293, 301 (2006))). To the
extent that Mason holds differently as a matter of contract interpretation, it is also
overruled on this basis.
¶ 35 As further support for this conclusion, as plaintiff argues, defendants were the
proponents of the contract. Thus, if defendants had wanted to exclude the
arbitration clause from the termination-on-death clause, they were in a position to
draft it that way. See, e.g., Regional Care of Jacksonville, LLC v. Henry, 2014 Ark.
361, at 4, 444 S.W.3d 356, 358 (“ ‘This Arbitration provision shall remain in full
force and effect notwithstanding the termination, cancellation, or natural expiration
of this Admission Agreement and/or the death of Resident.’ ”). Or, as stated by the
appellate court below:
“the drafters of the contract could quite easily have used other language to
indicate the more limited interpretation of the termination provision that
defendants now seek. Rather than broadly stating that ‘this Contract’ (i.e., the
whole contract) would terminate upon the resident’s death, the drafters could
have specified which provisions would remain in effect. For instance, the
contract could have stated that the death of a resident extinguished obligations
for future performance of services, but did not extinguish the parties’ agreement
to arbitrate claims that accrued during a resident’s lifetime. Or the termination
provision could have simply included a carve-out to preserve the arbitration
- 11 -
provision, for example, by stating that ‘this Contract, other than the arbitration
agreement in Section E, shall terminate’ upon the resident’s death. While we
cannot know why the drafters inserted such a broad termination provision,
defendants cannot avoid the effect of the plain meaning of its language.”
(Emphasis omitted.) 2022 IL App (1st) 210984, ¶ 61.
¶ 36 Since we find that the arbitration clause is unenforceable as a matter of contract
law, we do not need to address plaintiff’s alternative argument that the arbitration
clause is unenforceable because Kotalik was only Jansen’s healthcare POA and
could not bind Jansen to arbitration unless such agreement was a prerequisite to
admission.
¶ 37 CONCLUSION
¶ 38 In this case, applying well-established rules of contract interpretation, we
conclude that the contract, including the arbitration clause, terminated upon
Jansen’s death. Thus, when this action was brought after Jansen’s death, arbitration
as a contractual forum was no longer an available option, even for alleged negligent
conduct that occurred prior to Jansen’s death. Accordingly, we affirm the judgment
of the appellate court, which affirmed the judgment of the trial court denying
defendants’ motion to compel mediation and/or arbitration of counts I, II, VI, and
VIII of the complaint, to dismiss those counts, and to stay counts III, IV, V, and
VII of the complaint.
¶ 39 Judgments affirmed.
¶ 40 Cause remanded.
¶ 41 JUSTICE HOLDER WHITE took no part in the consideration or decision of
this case.
- 12 -
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
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Law
9882918
[SEGMENT 1]
[Cite as [CITATION].]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JOHN M. JACKSON : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Andrew J. King, J.
:
-vs- :
: Case No. 23 CAF 10 0095
TRACEY T. JACKSON :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 21 DR A 08
JUDGMENT: Affirmed in part, Reversed in part and
Remanded
DATE OF JUDGMENT ENTRY: August 16, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN M. JACKSON PRO SE JACQUELINE KEMP
263 McCraney Lane
Metro Place North, Ste 300
Columbus, OH 43213 Dublin, OH 43017 Delaware County, Case No. 23 CAF 10 0095
Gwin, P.J.
{¶1} Appellant appeals the September 29, 2023 judgment entry of the Delaware
County Court of Common Pleas, Domestic Relations Division.
Facts & Procedural History
{¶2} Appellant John M. Jackson and appellee Tracey T. Jackson were married
on October 5, 1996. The parties have three children. Two of their children were
emancipated at the time of trial. Appellant filed a complaint for divorce against appellee
on August 26, 2021. The trial court issued a “mutual restraining order” on August 31,
2021. Appellant filed a motion to determine a de facto termination date of marriage and
requested the trial court set a de facto marriage termination date of May 1, 2021.
However, appellant later withdrew his motion.
{¶3} The trial in this case was originally scheduled for July 18, 2022. On July 12,
2022, appellant filed a motion to continue the trial. Appellee did not object to the
continuance. Accordingly, the trial court granted appellant’s motion and continued the
trial until February of 2023.
{¶4} The magistrate conducted the trial in this case on the following dates:
February 13, 15, 16, 17, 21, 22, and 23 of 2023. Prior to the start of the trial, the parties
engaged in discussions about stipulations, but were unable to reach an agreement.
However, on the second day of the trial, the parties agreed and stipulated on how to
distribute the personal property and how to sell the marital home.
{¶5} At the beginning of their marriage, both appellant and appellee worked.
When the parties had children and moved to Ohio, appellee no longer worked. Appellant
testified he wanted appellee to go back to work, but she refused. Appellee testified Delaware County, Case No. 23 CAF 10 0095
appellant never asked her to go back to work; rather, the parties agreed that with the
amount needed for child care, it was cheaper for her to stay home. Despite any potential
disagreement on how the situation occurred, the result was that, until 2017, appellant
worked full-time and appellee was not employed outside the home. Each week, appellant
would provide appellee with a weekly allowance. Appellant described a situation in which
he provided appellee with a yearly budget that she was expected to maintain so she could
continue to be a stay-at-home parent. Appellee described a situation in which appellant
provided her with multiple spreadsheets each year, and had unrealistic expectations as
to how much it cost to raise a family with three children. Thus, she obtained credit cards
to provide food and what she thought was necessary to raise her children. At several
points throughout the marriage, appellant would stop appellee’s allowance if she
overspent. Appellant believes appellee should have relied on the money she was
supposed to be saving to continue any discretionary spending.
{¶6} In 2015 or 2016, appellee stated she grew tired of appellant’s strict budgeting
and what she believed was a constant focus on money that consumed their lives. Thus,
she left the home. Appellant offered what he felt was a fair compromise for her to return
to the home, i.e., appellee would be responsible for all “discretionary” spending. Both
parties agreed they did not discuss any financial information between themselves from
2017 through 2021. The parties continued to have disagreements, and appellee moved
out of the marital home in May of 2021. Appellee testified she informed appellant in 2016
that if he ever cut her off again, she would move out, and, when appellant “cut her off” in
May of 2021, she moved out. Delaware County, Case No. 23 CAF 10 0095
{¶7} In August of 2022, appellant purchased a lot of land in Pickerington to enable
him to build a house. The cost of the lot was $159,000. Appellant testified he liquidated
a checking account of $33,000 to purchase the lot. He also utilized $68,000 from a JP
Morgan Chase investment account to purchase the lot. The JP Morgan Chase account
has $1,000 left in it. Finally, he took out a $50,000 loan from his Nationwide 401(K) to
purchase the lot. Appellant stated he was aware of the restraining order, but felt this was
not a violation of the restraining order because he did not dissipate assets. Appellee did
not know about the lot or the 401(K) loan until the beginning of the trial when appellant
provided her counsel with his proposed balance sheet.
{¶8} The parties stipulated to the amounts contained in appellant’s retirement
accounts: $790,630 for his 401(K), $325,000 for his pension, $56,180 for his deferred
compensation, $12,260 in his supplemental defined benefit plan, and $145,230 in a Merrill
Lynch plan. Appellant did not have the current values of appellee’s accounts, but utilized
the figures she provided for her retirement accounts.
{¶9} Appellant testified that in 2016, he split a TD Ameritrade investment account.
He transferred $49,000 to his personal checking account and $44,000 into appellee’s
personal checking account. Appellee stated this was appellant’s gesture of goodwill for
reconciliation. She testified she used the $44,000 for home repairs of the marital home,
a new water heater for the marital home, to pay for a sick dog, pay for vacations, and pay
to purchase items for their children.
{¶10} Appellant testified he established a 529 account for each of his daughters.
Appellant stated appellee went into the accounts and changed the phone number and
contact information on the accounts. Appellant wants the accounts to be marital and be Delaware County, Case No. 23 CAF 10 0095
assigned to appellee because she made withdrawals from the accounts without his
knowledge. Appellant believes appellee had no authorization to take the money out of
the accounts, even if it was for the children’s schooling. Appellant stated he set up the
funds for the benefit of the children. As to funds taken out of Sydney’s account, appellant
and appellee had a conversation about the actual dollar amount that needed to be taken
out of the account to pay for school. He knew for Sydney’s first two years of college the
money had to be coming from the 529 plan. After that, he assumed appellee would pay
the college expenses from her own income, not the 529 fund, because appellant wanted
to save the 529 funds for medical school.
{¶11} Appellant testified the 529 funds were used legitimately since 2018 for
Sydney. However, he still considers this financial misconduct because appellee did not
obtain his permission to expend these funds to pay for Sydney’s school. As for Shelby
and Symone, appellant has no outside evidence to show or suggest they weren’t used
for anything other than school, but he does not know what the funds were used for. He
did not approve any of the transfers from Shelby or Symone’s 529 plans.
{¶12} Appellee testified that Sydney attended Vanderbilt University. Though
Sydney got a full tuition scholarship, appellant and appellee were responsible for paying
room and board, which was $8,900 per semester. Appellee used the 529 plan to pay this
room and board. Appellee testified appellant knew about the transactions for Sydney
because he had to complete the 1099’s to submit for their taxes. Appellee denied that
she and appellant ever discussed saving the 529 for medical school. Shelby went to
Columbus State, and appellee testified she used the money from Shelby’s 529 plan to
pay for Columbus State. Initially, appellant was not aware the funds were being used for Delaware County, Case No. 23 CAF 10 0095
Columbus State. However, he never complained about the use of the funds from the 529
plan for Columbus State. In August of 2021, Shelby started at Kentucky State University,
[SEGMENT 2]
and she is still going there. Appellee would like to use the 529 funds to help pay for the
tuition, which is $18,000 per year. Symone goes to a private high school, and appellee
used funds from the 529 plan to help pay for the tuition. Appellee testified to Exhibit P,
which is documentation of where the funds went from the 529 accounts to pay for each
school expense.
{¶13} Appellee testified she did not know she needed permission from appellant to
spend the 529 funds. Appellee stated appellant never complained about her using the
funds, and the statements came to the home via the mail each month for him to view. He
never told appellee he had any issues with the use of the funds contained in the
statements. Appellee stated it was appellant who told her she could use the 529 funds
to pay for books and other school-related expenses because she thought she could only
use it for tuition. Appellee testified she had always taken care of paying fees and all
school shopping for the children throughout their marriage, so she believed she was
permitted to use the 529 funds for their education expenses. Appellee stated she always
used the 529 funds for the benefit of her daughters, as the accounts were established for
their benefit.
{¶14} Appellee testified that appellant gave her the password for the 529 accounts.
Appellant admitted he gave appellee the password for the 529 accounts in 2008. He
stated she was only supposed to use the passwords in the event of his death, not to
change any of the information associated with the account. Delaware County, Case No. 23 CAF 10 0095
{¶15} Appellant spent a lengthy amount of time detailing what he believes to be
financial misconduct that appellee committed for “excessive spending” from 2016 until the
date of separation. Initially in their marriage, from 1996 to 2015, appellant managed the
finances how he wanted to. The parties separated for a period of time in 2015 or 2016.
In order to provide appellee with some security she said she desired, appellant transferred
$44,000 from the TD Ameritrade account into appellee’s personal checking account.
Also, in 2016, when appellee returned to the home, appellant stated he let her be in
charge of the discretionary household spending; however, he set up a separate account
that appellee did not have access to in order to pay household bills. Appellant let appellee
make payments for items such as food, vacations, phone, internet, cable, eating out,
social events, and “lifestyle items.” Appellant testified he got bonuses of over $100,000
each year. He did not include any of his bonus money in the amount he gave appellee
for discretionary spending; rather, he kept the funds for himself.
{¶16} Appellee disputed appellant’s testimony that she was in charge of all of the
discretionary spending. She agreed that he gave her a certain amount of money and she
had to pay for food, vacations, home repairs, household expenses, and expenses for the
children (cheer squad, gymnastics, Girl Scouts, soccer); however, she stated he kept a
large amount of money for himself to do with what he wanted. She never knew who he
was loaning money to or what he was investing in. If appellee questioned him, appellant
would tell her it was his money and his house. Further, appellee stated appellant would
continually add items to what she needed to pay (i.e., life insurance premiums) and did
not increase the amount he gave her. Appellant agreed he spent his funds on items for
his family, such as paying for his brother to take college classes, purchasing plane tickets Delaware County, Case No. 23 CAF 10 0095
for his family, remodeling his mother’s home for $12,000, paying $5,000 for his aunt’s
home, and purchasing two cars for his mother. In 2017, he paid $25,000 to create an
endowment at Ohio State University. He did not tell appellee about this because they
were not “discussing financial matters during the last five years of [their] marriage.”
{¶17} Appellant presented the court with Exhibit 9, which contained his opinion as
to what amount would be reasonable to spend for each discretionary category. He
testified that from January 1, 2017 to the end of May 2021, he deposited over $494,497.23
into appellee’s “discretionary” account. Appellant went through each charge appellee
made, and detailed how he believed each of these charges was excessive. Appellant
believes $214,035 was a normal and responsible budget for that period of time, so he
believes appellee excessively spent $233,559.19. Appellant also expected that, during
that period, appellee would have been saving and investing at least some money in the
529 plans and the TD Ameritrade account.
{¶18} Appellee testified the charges she made during this time were not excessive,
and the amounts appellant felt were “reasonable” for each discretionary category were
not reasonable. Appellee stated appellant would consider it extravagant if she spent $10
more on something than she should have. Appellee testified everything she was buying
was for the children and the marital home and included items such as: pots, pans,
decorations, furniture, towels, comforters, book fairs, school supplies, lessons, uniforms,
vacations, restaurants, entertainment, and home repairs.
{¶19} Appellee testified she established a “Greenlight Account” with Huntington
Bank. The account has appellee’s name on it, along with her daughters’ Sydney and
Shelby’s names on it. Appellee stated that, during the marriage from 2016 to 2021, she Delaware County, Case No. 23 CAF 10 0095
used the funds in this account to provide funds to the kids for an allowance, concerts,
food, eating out, and activities. Sydney and Shelby each worked during this time at Giant
Eagle and Cane’s, and those funds went into the Huntington account with all three names
on it (“Greenlight Account”). Sydney now has a full-time teaching job. She still puts her
paycheck into the Greenlight Account. Appellee keeps notes of how much each child
deposits into the account each month. On cross-examination, appellant agreed appellee
funded the Greenlight Account for the children. He agrees the money was all sent to the
girls; however, he believes it is financial misconduct because he did not approve the use
of the funds.
{¶20} The magistrate issued a detailed magistrate’s decision on August 29, 2023.
The magistrate found the duration of the marriage to be from October 5, 1996 to February
13, 2023. The magistrate utilized the required factors to determine an appropriate
property division that is fair and equitable. In part, the magistrate found as follows: it is
fair and equitable for the value of the lot appellant purchased in August of 2022 to be
utilized in the property division analysis and for the value of the lot to be retained by
appellant; appellant should be responsible for the loan he took out of his 401(K) to
purchase the lot; it is fair and equitable for the full value of Chase bank accounts to be
utilized, and for the value of the accounts to be retained by appellant and assigned to him
as an asset; the $67,000 withdrawn from the Chase Brokerage account to purchase the
lot is present in the equity value of the lot; and appellant’s retirements plans should be
divided as of February 13, 2023. The magistrate divided all of the accounts and assets,
and completed the Court’s Exhibit 1, which is entitled “Property Division Spreadsheet.”
After going through the factors and detailing each marital and separate asset for each Delaware County, Case No. 23 CAF 10 0095
spouse, the magistrate ordered appellant to pay a one-time property equalization
payment of $29,343.65.
{¶21} The magistrate found appellant committed financial misconduct when he
utilized $50,000 from joint assets to pay for the lot because the 401(K) he borrowed the
money from was clearly intended to be a retirement asset of the parties. Further, that
appellant personally gained and profited from the financial activities utilizing the 401(K)
loan, and appellee’s interest was, in part, defeated as the balance remaining to be divided
was reduced by the loan.
{¶22} The magistrate determined appellant did not include his bonus income in his
budget or identify where the funds were deposited or what remains of them. Further, that
appellant used these funds for his personal discretionary spending as he saw fit, and he
retained $186,662.94 in bonus income during the proceedings. However, the magistrate
found no financial misconduct as to the bonuses.
{¶23} As to the 529 accounts, the magistrate noted appellant testified the 529 for
Sydney was used for legitimate educational expenses. Further, both parties testified the
intent of establishing the 529 accounts was to provide for the children’s educational
expenses. Neither party testified that they ever believed the 529 accounts were
investments for the parties benefit or later withdrawal. The magistrate concluded
appellant failed to establish appellee engaged in financial misconduct as it relates to 529
savings because: neither party believed those assets to be their individual entitlements
[SEGMENT 3]
or investments; the testimony was clear that both parties intended for the 529 plans to be
for the benefit of the children and specifically for the payment of education related
expenses for the children; and there was no profit to appellee or defeat of appellant’s Delaware County, Case No. 23 CAF 10 0095
marital interest because both parties testified the accounts were for the children’s
educations which both parties acknowledge are ongoing. The magistrate designated
appellee as the custodian of the 529 accounts and ordered they be maintained and
utilized only for the benefit of the children. The magistrate concluded it was not fair and
equitable to include the 529 plans as marital assets because the accounts are being held
and maintained for the benefit of the children and their education expenses.
{¶24} With regards to appellant’s request to find appellee committed financial
misconduct for spending $44,000 from a TD Ameritrade account he gave her in 2016, the
magistrate noted appellee’s testimony that she spent the money on a water heater for the
marital home, repairs to the marital home, swimming lessons for appellant’s mother, the
family pet, cabin trips, and expenses for the family. The magistrate found no financial
misconduct because the transfer occurred years before the parties’ separation and
because, by appellant’s own admission, there were “no strings attached” to this money
he gave her. The magistrate stated she “will not second guess joint marital decisions that
occurred 5 years prior to their separation.”
{¶25} The magistrate next addressed appellant’s request for a finding of financial
misconduct against appellee for allegedly excessive spending from 2016 through 2020.
The magistrate made the following findings: appellant was never denied access to the
parties’ accounts; appellant never requested information about the parties’ accounts;
appellant believed when appellee took over the discretionary spending she had an
understanding of his expectations with regard to investing; appellant was uninvolved with
discretionary spending after 2016; appellant made no effort to inform himself of the state
of the parties’ financial affairs; appellee testified appellant kept a tight hold of the finances Delaware County, Case No. 23 CAF 10 0095
of the parties; when appellant’s budgeted amount was not sufficient to meet expenses,
appellee had no choice but to rely on credit cards to pay for things above and beyond the
budgeted amounts; appellee did not believe she was in charge of all of the discretionary
spending after 2016 because appellant gave himself a certain amount each month; while
appellee had a limited amount of income to pay for family expenses, appellant was paying
for other family member’s vehicles; appellee never knew how appellant was spending his
money; appellee testified that with the Greenlight Account she essentially provided the
kids with the ability to purchase food and pay for things they needed that appellee funded
with a Huntington checking account; appellant believes this is misconduct because he
never gave his children an allowance; appellant agreed it appeared the amounts were
largely used for the children; and appellant put appellee in charge of the finances and
chose to be hands-off despite her history of running up credit card balances.
{¶26} The magistrate stated, “hours of testimony were spent pouring over financial
analyses conducted by John detailing what he believed to be the financial misconduct of
[CITATION].” Further, that the parties, throughout their marriage, disagreed on how they
would handle financial affairs. The magistrate concluded that disagreeing on how to
handle financial affairs is insufficient to meet the burden for financial misconduct.
{¶27} Appellant filed objections to the magistrate’s decision on September 13,
2023. He also requested a thirty-day extension to file the transcript and supplement his
objections. Appellee filed cross-objections to the magistrate’s decision, and a motion to
dismiss appellant’s objections as being untimely.
{¶28} The trial court issued a judgment entry on September 29, 2023. The court
found appellant’s objections untimely, and also found appellee’s cross-objections Delaware County, Case No. 23 CAF 10 0095
untimely. Further, the court adopted the magistrate’s order, and incorporated by
reference the findings of fact and conclusions of law contained in the magistrate’s
decision.
{¶29} Appellant appeals the September 29, 2023 judgment entry of the Delaware
County Court of Common Pleas, Domestic Relations Division, and assigns the following
as error:
{¶30} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
FAILING TO CONSIDER APPELLANT’S OBJECTIONS TO THE MAGISTRATE’S
DECISION THAT WERE FILED ONE DAY LATE.
{¶31} “ II. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
ADHERE TO THE PARTIES’ STIPULATIONS REGARDING THE DATE AND VALUE OF
THE MARITAL ASSETS.
{¶32} “III. THE TRIAL COURT COMMITTED PLAIN ERROR BY UTILIZING
MULTIPLE VALUATION DATES WHEN DETERMINING THE DIVISION OF ASSETS
AND THE PROPERTY DIVISION EQUALIZATION PAYMENT
{¶33} “IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOCATING
TO APPELLANT THE VALUE OF ACCOUNTS USED TO PURCHASE A LOT AND
THEN ALSO ALLOCATING THE LOT TO APPELLANT RESULTING IN DOUBLE
COUNTING OF THE SAME ASSETS.
{¶34} “V. THE TRIAL COURT COMMITTED PLAIN ERROR BY (A) FAILING TO
CHARACTERIZE THE 529 COLLEGE SAVINGS ACCOUNTS AS MARITAL ASSETS
AND (B) FAILING TO INCORPORATE THEM INTO THE CALCULATION OF THE
PROPERTY DIVISION EQUALIZATION PAYMENT. Delaware County, Case No. 23 CAF 10 0095
{¶35} “VI. THE TRIAL COURT COMMITTED PLAIN ERROR BY
CHARACTERIZING A 401K LOAN OBTAINED BY APPELLANT AS A “SEPARATE
LIABILITY” BECAUSE (A) SUCH LOAN WAS USED TO FUND THE ACQUISITION OF
THE LOT AND (B) THE LOT HAS BEEN TREATED AS A MARITAL ASSET.
{¶36} “VII. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONCLUDE THAT APPELLEE ENGAGED IN FINANCIAL MISCONDUCT WHEN SHE
UNILATERALLY WITHDREW $113,087.75 FROM THE 529 COLLEGE SAVINGS
ACCOUNTS WITHOUT APPELLANT’S KNOWLEDGE OR CONSENT.
{¶37} “VIII. THE TRIAL COURT COMMITTED PLAIN ERROR BY AWARDING
THE ENTIRE HEALTH SAVINGS ACCOUNT TO APPELLANT AND FAILING TO
RESTRAIN APPELLEE FROM UTILIZING SUCH ACCOUNT TO PAY HEALTH-
RELATED EXPENSES AFTER JULY 18, 2022.
{¶38} “IX. THE TRIAL COURT COMMITTED PLAIN ERROR BY CONCLUDING
THAT APPELLEE DID NOT ENGAGE IN FINANCIAL MISCONDUCT FOR EITHER (A)
FAILURE TO DISCLOSE $44,000 PREVIOUSLY DISTRIBUTED TO APPELLEE FROM
THE PARTIES’ JOINT TD AMERITRADE INVESTMENT ACCOUNT OR (B) SPENDING
THE ENTIRE $44,000 DURING A 60-DAY PERIOD IN 2016 WITHOUT APPELLANT’S
KNOWLEDGE.
{¶39} “X. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONCLUDE THAT APPELLEE’S TRANSFER OF $35,300 FROM RESTRICTED
SAVINGS ACCOUNT TO CHECKING ACCOUNTS (AND ULTIMATELY SPENDING OF
IT) IN VIOLATION OF THE MUTUAL RESTRAINING ORDER CONSTITUTED
FINANCIAL MISCONDUCT. Delaware County, Case No. 23 CAF 10 0095
{¶40} “XI. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONCLUDE THAT APPELLEE’S EXCESSIVE AND SECRETIVE SPENDING OF
$233,559.19 IN 4 ½ YEARS CONSTITUTED FINANCIAL MISCONDUCT.
I.
{¶41} In his first assignment of error, appellant argues the trial court abused its
discretion by failing to consider appellant’s objections to the magistrate’s decision that
were filed one day late. Appellant concedes his objections were filed one day late, but
contends the trial court “could have used its discretion” and considered the objections.
{¶42} Civil Rule 53(D)(3)(b)(i) provides that “a party may file written objections to
a magistrate’s decision within fourteen days of the filing of the decision, whether or not
the court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).”
{¶43} In this case, the magistrate’s decision contains a time-stamp of August 29,
2023. Appellant did not file his objections until September 13, 2023, which is one day
past the fourteen-day deadline contained in Civil Rule 53(D)(3)(b)(i). Appellant did not
file a motion for extension pursuant to Civil Rule 53(D)(3)(b)(5), and made no attempt to
demonstrate “good cause” as to why the objections were filed late. We find no abuse of
[SEGMENT 4]
discretion in the trial court’s failing to consider appellant’s objections as they were not in
compliance with Civil Rule 53(D)(3). [CITATION] (no abuse of discretion for trial court not to consider objections that were filed one
day late); [CITATION] (objections filed one day late
are out of compliance with the rule); [CITATION] (written Delaware County, Case No. 23 CAF 10 0095
objections are necessary to preserve issues for appeal). Appellant’s first assignment of
error is overruled.
Plain Error Review
{¶44} Because we overruled appellant’s first assignment of error, we review the
remainder of his assignments of error pursuant to the plain error doctrine. “Plain error” is
often construed to encompass errors of law or other defects evident on the face of the
magistrate’s decision which prohibit the adoption of a magistrate’s decision even in the
absence of objections. [CITATION]
{¶45} The plain error doctrine is not favored and may be applied only in the
extremely rare case involving exceptional circumstances where the error seriously affects
the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself. [CITATION], citing [CITATION]
(1997). Even if we were to discover plain error, we have “discretion to disregard the error
and should correct it only to prevent a manifest miscarriage of justice.” Id.
II. & III.
{¶46} In his second assignment of error, appellant contends the trial court
committed error in ignoring the stipulations the parties made as to the division of the
retirement accounts. In his third assignment of error, appellant argues the trial court
committed plain error by utilizing multiple valuation dates when determining the division
of assets and the property equalization payment.
{¶47} At issue in these assignments of error are appellant’s retirement accounts
from Nationwide and Merrill Lynch (collectively, “Appellant’s Retirement Accounts”). Delaware County, Case No. 23 CAF 10 0095
Specifically, these accounts are as follows: Nationwide 401(K), Nationwide Pension,
Nationwide Deferred Compensation, Nationwide Supplemental Defined Contribution
Plan, and appellant’s Merrill Lynch IRA. Appellant contends the trial court committed
plain error in (1) failing to recognize stipulations as to these accounts and (2) in utilizing
multiple valuation dates for these accounts and other financial accounts.
{¶48} It is clear from the record that appellee did stipulate to the values of
Appellant’s Retirement Accounts, as follows: $790,630 for the Nationwide 401(K),
$325,000 for the Nationwide Pension, $12,260 for the Nationwide Supplemental Defined
Contribution Plan, $56,180 for the Nationwide Deferred Compensation, and $145,230 for
the Merrill Lynch IRA.
{¶49} The magistrate and trial court utilized the stipulated values in the property
division worksheet (Court’s Exhibit 1), and calculated the property division equalization
payment owed by appellant to appellee based upon the stipulated values. However, in
the magistrate’s decision that was adopted by the trial court, the magistrate incorrectly
found the parties did not stipulate to these values. The entry states the following: “the
parties did not stipulate to the value of the (Nationwide) pension,” “the parties did not
stipulate to the value of either the Nationwide Deferred Compensation Plan or the
Nationwide Supplemental Defined Contribution Plan,” and “the parties did not stipulate to
the value of John’s Merrill Lynch IRA.” Additionally, the trial court utilized a June 30, 2022
date to divide all of appellee’s retirement accounts while utilizing the February 13, 2023
date to divide Appellant’s Retirement Accounts.
{¶50} Appellee argues the parties never stipulated to one specific valuation date
and did not stipulate or agree to the duration of the marriage. We agree with appellee Delaware County, Case No. 23 CAF 10 0095
that the parties never stipulated to a specific valuation date and clearly did not stipulate
to or agree to the duration of the marriage. Accordingly, we find no error in the magistrate
and trial court’s determination of the duration of the marriage pursuant to R.C.
3105.171(A)(2). However, the magistrate’s judgment entry, which was adopted by the
trial court, incorrectly states that the values of appellant’s retirement accounts were not
stipulated to. Further, the trial court’s Exhibit 1 (property division worksheet) conflicts with
the judgment entry, as they each provide a different date for the valuation of Appellant’s
Retirement Accounts.
{¶51} Appellee also contends the trial court is permitted to utilize multiple valuation
dates as long the trial court sufficiently explains its reasoning. A trial court has the
discretion to determine the date of valuation in its discretion, and this date may vary from
asset to asset. [CITATION] (trial court clearly set forth
explanation for utilizing different valuations dates, so no abuse of discretion); [CITATION] (it is
within the court’s discretion to use different valuation dates where valuation or account
balances at a certain date were the only evidence before the court). However, the trial
court must adequately explain its reasons for choosing different valuation dates for certain
assets. Id. The record reflects that the magistrate and trial court adequately and
specifically explained its reasons for utilizing the differing valuation dates for the accounts
other than Appellant’s Retirement Accounts to achieve equity. The trial court valued
these accounts based upon the only valuation or account balances presented to the court.
{¶52} While the judgment entry issued by the magistrate and adopted by the trial
court clearly explains why it utilized the sometimes-varying valuation dates for the
====== Delaware County, Case No. 23 CAF 10 0095
accounts other than Appellant’s Retirement Accounts, neither the magistrate nor the trial
court explained why the values stipulated to by the parties was utilized on Exhibit 1, but
was not included in the judgment entry. These errors or defects are evident from the face
of the magistrate’s decision subsequently adopted by the trial court.
{¶53} Appellant’s second and third assignments of error are overruled in part and
affirmed in part. Upon remand, the trial court shall only address the narrow issues of (1)
determining whether the fact that the parties stipulated to the value of Appellant’s
Retirement Accounts impacts the division of Appellant’s Retirement Accounts
(Nationwide 401(K), Nationwide Pension, Nationwide Deferred Compensation,
Nationwide Supplemental Defined Contribution Plan, Appellant’s Merrill Lynch IRA) and
(2) if necessary, after determining whether the stipulations impact the division date of
Appellant’s Retirements Accounts, to provide clarification as to why the date of division
of the retirement accounts differs in Exhibit 1 and the judgment entry.
IV.
{¶54} In his fourth assignment of error, appellant argues the trial court committed
plain error in “double counting” two Chase checking accounts in the amounts of
$61,597.72 and $11,104.34 because these accounts were depleted to purchase the lot
in Pataskala and thus the trial court could not allocate these two checking accounts to
appellant on the balance sheet because the lot was listed on the balance sheet.
{¶55} The trial court must equitably divide marital property between spouses in
accordance with R.C. 3105.171. The trial court has broad discretion to determine an
equitable and fair division of the marital assets. [CITATION]. Delaware County, Case No. 23 CAF 10 0095
Thus, the valuation of marital assets is typically a factual issue that is left to the discretion
of the trial court. [CITATION]
{¶56} At trial, appellant testified he utilized the following to pay for the lot: (1)
$50,000 loan from his 401(K), (2) $67,000 from a Chase brokerage/investment account,
and (3) $33,000 from a Chase checking account that he liquidated upon purchase of the
lot. The Chase brokerage/investment account had a balance of $1,000, and this $1,000
was allocated to appellant on the balance sheet, not the entire $68,000. The magistrate
specifically found that, even though appellant provided no statements for this account,
the $67,000 withdrawn is “present in the equity of the Pataskala, Ohio lot.” Accordingly,
there was no double-counting of the investment account.
{¶57} It is unclear where appellant is claiming the $33,000 came from, either the
$11,104.34 checking account, the checking $61,597.72 account, or both. Anything over
the $33,000 would not be double-counting because appellant’s testimony is that only
$33,000 came from a Chase checking account. In her findings of fact, the magistrate
found appellant completely liquidated the $33,000 Chase checking account to buy the lot.
This was in accordance with appellant’s testimony that he liquidated the account to
purchase the lot. Thus, no $33,000 checking account was included on the court’s balance
sheet (Exhibit 1). In the “financial accounts” section of her decision, the magistrate
allocated two checking accounts in appellant’s name to him, utilizing the amounts
contained in appellant’s Exhibit 25 ($61,597.72 and $11,104.34), and found it fair and
equitable to assign these to appellant.
{¶58} The magistrate did not assign or “double count” the $33,000 because she
[SEGMENT 5]
found it was depleted to purchase the lot and did not list it on the balance sheet. However, Delaware County, Case No. 23 CAF 10 0095
the magistrate did separately assign to appellant two checking accounts with balances
contained in appellant’s Exhibit 25. Reading these two provisions of the magistrate’s order
together, the magistrate found the checking accounts listed on Exhibit 25 were separate
from the account used to fund the lot. As to the determination of the funding source for
the $33,000, the determination of whether a witness or evidence is credible rests solely
with the finder of fact, and we may not substitute our judgment. [CITATION]. If there are inconsistencies in the
testimony or evidence offered at trial, the trier of fact is free to believe or disbelieve any
or all of the evidence presented. [CITATION].
{¶59} Appellant also appears to be arguing the trial court’s determination as to
these checking accounts was against the manifest weight of the evidence. However, this
Court cannot conduct a manifest-weight-of-the-evidence review because appellant failed
to file timely objections to the magistrate’s decision. Additionally, the magistrate and trial
court based its determination on the testimony and evidence presented by the parties. “A
domestic relations court is in the best position to resolve disputes of fact, and assess the
credibility of the witnesses and the weight to be given to their testimony.” [CITATION].
{¶60} The magistrate additionally found appellant committed financial misconduct
with the purchase of the lot in violation of the temporary restraining order. R.C.
3105.171(E)(4) provides that “the court may compensate the offended spouse with a
distributive award or with a greater award of marital property.” Accordingly, to the extent
the magistrate and trial court compensated appellee with these funds, we cannot
conclude the magistrate’s decision, or the trial court’s adoption thereof, amounted to plain Delaware County, Case No. 23 CAF 10 0095
error that seriously affected the basic fairness, integrity, or public reputation of the judicial
process.
{¶61} Appellant’s fourth assignment of error is overruled.
V.
{¶62} In his fifth assignment of error, appellant argues the trial court committed
plain error by failing to characterize the 529 college savings accounts as marital assets
and by failing to incorporate them into the property division equalization payment.
{¶63} In the judgment entry by the magistrate later adopted and approved by the
trial court, the magistrate found the 529 college fund was not a marital asset for purposes
of determining the property division because the testimony demonstrated the accounts
are being held and maintained for the benefit of the children and payment of their
education-related expenses. The magistrate detailed the testimony of the parties in this
regard, specifically the testimony that both parties agreed the accounts were established
for their children’s education, neither party believed these assets to be their individual
assets, and both parties’ clear testimony that they intended the 529 plans to be for the
benefit of their children.
{¶64} Appellant asserts that since 529 college savings plans do not fall within the
definition of “separate property” under R.C. 3105.171, they legally are martial property,
and can never be found to be separate property. However, there is no clear-cut rule that
529 plans must always be classified as marital assets. [CITATION] (529 plans was not part of the property division because the parties
specifically contemplated the funds for education expenses for the children rather than a
personal financial account for either spouse); [CITATION] Delaware County, Case No. 23 CAF 10 0095
Dist.) (529 plan was the property of the children, and not marital property, where the
parties agreed to utilize the funds for the children’s education, thus suggesting that the
parties were not free to do with the funds as they liked); [CITATION]
(10th Dist.) (no error in finding savings accounts were not marital, but were assets of the
parties’ children, trial court’s determination supported by competent and credible
evidence). That determination is based upon the testimony and evidence presented in
each case, and an appellate court reviews the decision as to whether a 529 plan or other
account for the benefit of the child is marital to determine whether it is against the manifest
weight of the evidence. [CITATION]
{¶65} Of particular relevance, this Court has found that a trial court’s finding was
not in error when it determined certain funds belonged to the parties’ teenage children
when the parties intended to use the funds to pay for education. [CITATION]
{¶66} This Court cannot conduct a manifest-weight-of-the-evidence review
because appellant failed to file timely objections to the magistrate’s decision. Additionally,
the magistrate and trial court based their determination on the testimony and evidence
presented by the parties. “A domestic relations court is in the best position to resolve
disputes of fact, and assess the credibility of the witnesses and the weight to be given to
their testimony.” [CITATION]
{¶67} We find the magistrate and trial court’s treatment of the 529 plans does not
contain any error that would seriously affect the basic fairness, integrity, or public
reputation of the judicial process, or challenge the legitimacy of the underlying judicial
process itself. Appellant’s fifth assignment of error is overruled. Delaware County, Case No. 23 CAF 10 0095
VI.
{¶68} In his sixth assignment of error, appellant contends the trial court committed
plain error by characterizing the $50,000 401(K) loan obtain by appellant to fund his
purchase of the Pataskala lot to be his separate liability because the lot is treated as a
marital asset. Appellant contends since the lot is marital property, the loan used to obtain
the lot should also be martial property.
{¶69} Characterization of property as marital or separate debt must be supported
by competent and credible evidence. [CITATION]. Trial courts have broad discretion in determining what is separate property and what is
marital property. Id.
{¶70} The magistrate and trial court found the $50,000 401(K) loan that appellant
obtained in August of 2022 was separate debt. This finding was consistent with
appellant’s testimony. Appellant testified he believed he should be responsible for the
indebtedness. This finding is also consistent with appellant’s proposed findings of fact in
which he states, “plaintiff requests the Court to declare each party to be solely responsible
for the indebtedness that they incurred in their individual name, and, as a result, award
the $50,000 401(K) loan to Plaintiff.” Likewise, appellant did not include the $50,000 loan
on his proposed balance sheet as marital property. Accordingly, we find no plain error in
the treatment of the loan as appellant’s separate debt.
{¶71} Appellant asserts in his appellate brief that “the trial court failed to find that
the 401(K) loan to purchase the lot constitue[d] financial misconduct,” and thus it is
improper for the loan to be characterized as separate property. Appellant also asserts it
was error to classify the loan as separate property because appellee did not suffer any Delaware County, Case No. 23 CAF 10 0095
financial harm from his actions. However, the magistrate, and the trial court by adopting
the magistrate’s decision, clearly found appellant engaged in financial misconduct by
obtaining the loan in August of 2022 in violation of the temporary restraining order.
{¶72} The magistrate specifically found as follows: the funds in the 401(K) were
intended to be retirement assets of the parties; appellant personally gained and profited
from his financial activities utilizing the 401(K) loan; appellee’s interest was, in part,
defeated; and marital funds were dissipated to the advantage of appellant and the
disadvantage of appellee.
{¶73} A determination on financial misconduct rests on the fact and circumstances
of each case. [CITATION]. As such, the trier of fact is
given the duty to determine the credibility of each party’s assertions in determining
financial misconduct. Id. The trial court is provided discretion in determining whether a
spouse committed financial conduct pursuant to R.C. 3105.171(E)(3), generally subject
to whether the determination is against the manifest weight of the evidence. Id. Financial
misconduct implies some type of wrongdoing such as interference with the other spouses’
property rights. Typically, the offending spouse * * * either profits from the misconduct or
intentionally defeats the other spouses’ distribution of marital assets.” [CITATION]. To determine financial misconduct, a court must
look to the reasons behind the questioned activity or the results of that activity and
determine whether the wrongdoer profited from the activity or intentionally dissipated,
destroyed, concealed, or fraudulently disposed of the other spouse’s assets. [CITATION].
====== End of Part of a Court Ruling ====== Delaware County, Case No. 23 CAF 10 0095
{¶74} Appellant contends the magistrate and trial court committed error in their
determination that he personally gained and profited and that appellee’s interest was, in
part, defeated, by the purchase of the lot in August of 2022 without appellee’s knowledge.
While the general standard of review is whether the trial court’s finding of financial
misconduct is against the manifest weight of the evidence, that standard is not applicable
[SEGMENT 6]
in this case because appellant did not timely filed objections to the magistrate’s decision.
Essentially, appellant is asking this Court to conduct a manifest weight of the evidence
review to determine whether the decision of the magistrate and trial court was
unsupported due to the testimony and evidence he presented at trial. We cannot conduct
a manifest-weight-of-the-evidence review since no timely objections were filed to the
magistrate’s decision.
{¶75} We cannot conclude that the magistrate's decision, or the trial court's
adoption thereof, amounted to plain error that “seriously affect[ed] the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy of
the underlying judicial process itself.” [CITATION] at ¶ 37, quoting [CITATION], syllabus. Appellant’s sixth assignment of error is overruled.
VII.
{¶76} In his seventh assignment of error, appellant contends the trial court
committed plain error by failing to conclude appellee engaged in financial misconduct
when she unilaterally withdrew $113,087.75 from the 529 college savings accounts
without appellant’s knowledge or consent.
{¶77} The magistrate issued the following findings of fact: appellee testified she
changed the e-mail on the account because she initiated the transfers to the schools; Delaware County, Case No. 23 CAF 10 0095
appellee testified she never changed the password on the account and appellant always
had access to the account; appellant testified he believed the 529 funds for Sydney were
used for legitimate educational expenses, although he could not remember if he made
any of those transactions; appellant testified he and appellee had a discussion about
needing to send money to the school, but he does not remember what happened after
that; appellant testified he did not look at the accounts because he did not need to;
appellant believes after appellee started working full-time, appellee should have used her
income to pay the tuition, room, and board for their children; appellant changed the
password to the 529 fund for Symone during the divorce so appellee could not access
the funds; appellant testified he was not making a statement one way or the other as to
whether the 529 funds were used for legitimate purposes; appellant believes it is financial
misconduct because he did not approve the transfers; appellee testified appellant never
questioned her on the 529 expenses and it was appellant who informed appellee she
could use the 529 accounts to purchase books; and appellee testified she utilized funds
from the 529 accounts to pay for legitimate educational expenses. The magistrate
concluded: it was clear both parties intended for the 529 plans to be for the benefit of the
children; and appellee did not defeat appellant’s marital interest in the accounts because
both parties testified the accounts were for the children’s education needs that are
ongoing and appellee used the funds for educational expenses.
{¶78} While appellant argues appellee committed “electronic forgery” by utilizing
the password for the 529 account in order to change the e-mail on the account, appellee’s
undisputed testimony is that appellant gave her the password to the account in 2016. Delaware County, Case No. 23 CAF 10 0095
Accordingly, we find no plain error in the trial court’s determination that this did not
constitute financial misconduct.
{¶79} Appellant cites this Court’s decision in [CITATION] for the
proposition that a spouse automatically commits financial misconduct by withdrawing
funds from a 529 plan without the knowledge or consent of the other spouse, and that
oral testimony by the spouse withdrawing the funds is never sufficient to trace the funds.
[CITATION]
{¶80} We disagree with appellant’s characterization of the [CITATION] case. In
[CITATION], we found the trial court’s determination that one spouse had not sufficiently
traced 529 funds from the college savings account to expenditures made on behalf of the
child’s college education was not against the manifest weight of the evidence and a
finding of financial misconduct by the trial court was not an abuse of discretion. Id. We
specifically noted in [CITATION] the broad discretion the trial court has in a finding of financial
misconduct. Id. Additionally, we did not issue a bright-line rule that a spouse
automatically commits financial misconduct by withdrawing funds from a 529 plan without
the consent of the other spouse, or that the oral testimony by the spouse withdrawing the
funds is never sufficient to trace the funds. Rather, we re-iterated that “it was within the
trial court’s province” to find the appellant had not sufficiently traced the funds. Id. In
this case, it was similarly within the trial court’s province to determine, based upon the
testimony and evidence offered by appellee, that appellee sufficiently traced the funds.
We find no plain error in the trial court’s determination.
{¶81} Appellant essentially requests this Court conduct a manifest-weight-of-the-
evidence review of the trial court’s determination as to the sufficiency of appellee’s Delaware County, Case No. 23 CAF 10 0095
evidence tracing the funds. We decline to do so since appellant did not file timely
objections to the magistrate’s decision. We cannot conclude the magistrate's decision,
or the trial court's adoption thereof, in this regard amounted to plain error that “seriously
affect[ed] the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” [CITATION] Appellant’s seventh
assignment of error is overruled.
VIII.
{¶82} In his eighth assignment of error, appellant contends the trial court
committed plain error when it awarded the entire health savings account to appellant and
failed to restrain appellee from using funds in this account after July 18, 2022.
{¶83} Appellant’s argument is essentially that the trial court should have valued
the account as of September 30, 2023, instead of July 18, 2022. Appellant attaches to
his appellate brief Exhibit D, which is purportedly a print-out of the account balance as of
September 30, 2023, and with a “statement print date” of January 31, 2024. This exhibit
contains information from dates subsequent to the trial, subsequent to the magistrate’s
decision, and subsequent to the trial court’s judgment entry; further, it was “printed out”
after this appeal was already filed. Appellant’s reliance on a new exhibit attached to his
appellate brief in support of his appeal is misplaced. “A reviewing court cannot add matter
to the record before it, which was not a part of the trial court’s proceedings, and then
decide the appeal on the basis of the new matter.” [CITATION] This Delaware County, Case No. 23 CAF 10 0095
is particularly true in this case because appellant failed to timely object to the magistrate’s
decision, and we review the trial court’s decision for plain error.
{¶84} The magistrate specifically stated why she utilized the July 18, 2022 date to
value the Health Savings Account, i.e., because appellant testified the HSA had a value
of $7,546.78 and that was the only value presented at trial by either of the parties. We
find no plain error in the magistrate’s determination.
{¶85} As to appellant’s argument regarding a restraining order, appellant did not
request such an order be issued, or ask that the trial court wait to value the HSA until
some later date. A litigant who has the opportunity to raise an issue in the trial court, but
declines to do so, waives the right to raise that issue on appeal. [CITATION]
{¶86} Appellant’s eighth assignment of error is overruled.
IX.
{¶87} In his ninth assignment of error, appellant argues the trial court committed
plain error in concluding that appellee did not engage in financial misconduct for either
(1) the failure to disclose the $44,000 previously distributed to appellee from the parties’
joint TD Ameritrade Investment Account or (2) spending the entire $44,000 during a 60-
day period in 2016 without appellant’s knowledge.
{¶88} Both parties testified appellant divided the TD Ameritrade account between
themselves in 2016, with appellant receiving $49,000 and appellee receiving $44,000.
The magistrate found the transfer of the $44,000 occurred years prior to the parties’
separation and, by appellant’s own testimony, there were no strings attached to this
transfer. The magistrate stated she would “not engage in revisionist history with regard Delaware County, Case No. 23 CAF 10 0095
to this account transfer, nor will the magistrate second guess the joint marital decisions
of the parties with respect to an account transfer that occurred * * * years prior to the
parties’ separation.”
{¶89} The magistrate clearly found appellee’s testimony that she spent the
$44,000 on a new water heater for the marital home, repairs to the marital home, the
purchase of a new family pet, swimming lessons for appellant’s mother, cabin trips, and
expenses for the family and the children, to be credible. Accordingly, we find no plain
error in the determination that appellee did not commit financial misconduct for the failure
to disclose the $44,000 because the funds did not exist as of the date of the divorce filing.
[SEGMENT 7]
It is appellant’s position that this testimony is not credible, and appellee’s explanation is
not plausible. However, the trier of fact is given the duty to determine the credibility of
each party’s assertions in determining financial misconduct. [CITATION]. The determination of whether a witness or evidence is credible
rests solely with the finder of fact, and we may not substitute or judgment. [CITATION]. If there are inconsistencies in
the testimony or evidence offered at trial, the trier of fact is free to believe or disbelieve
any or all of the evidence presented. [CITATION].
{¶90} Similarly, the magistrate and trial court found no financial misconduct for
appellee’s alleged “excessive spending” of the $44,000 due to the parties’ testimony that
there were no “restrictions” or “strings” attached to these funds being distributed among
the spouses. We find no plain error in this determination. This determination is based
upon the testimony of the parties. We may not substitute our judgment for the trier of
fact’s determination of credibility. Appellant’s ninth assignment of error is overruled. Delaware County, Case No. 23 CAF 10 0095
X.
{¶91} In his tenth assignment of error, appellant contends the trial court committed
plain error by failing to conclude that appellee’s transfer of $35,300 from restricted savings
accounts to checking accounts (and ultimate spending of it) in violation of the mutual
restraining order constituted financial misconduct.
{¶92} We first note that it is unclear as to whether appellant asked the magistrate
to find financial misconduct for appellee’s alleged transfer from $35,300 from restricted
savings accounts to checking accounts in violation of the restraining order. This is
evidenced by appellant’s closing argument, in which “Exhibit A,” appellant’s proposed
awards for financial misconduct, includes three lines for requested financial misconduct
findings: “#1 – TD Ameritrade ($44,000), #2 – 529 Plans ($213,895), #3 – Excessive
Spending ($233,560).” However, counsel for appellant did cross-examine appellee on
these transfers.
{¶93} We find no plain error in the magistrate and trial court finding no financial
misconduct on the part of appellee. We again find this is a situation in which the trier of
fact found appellee’s testimony credible, as is the trial court’s province. Appellee testified
she transferred funds from her savings to her checking and from her checking to her
savings because her daughters would deposit their paychecks into the Huntington
account (joint account between appellee and her daughters), and request appellee pay
various bills for them. Thus, she was continually moving money at various times;
however, these were not marital funds, but were separate funds of her children. Appellant
asserts this testimony is not credible. However, the determination of whether a witness Delaware County, Case No. 23 CAF 10 0095
or evidence is credible rests solely with the finder of fact, and we may not substitute or
judgment. [CITATION] (1984).
{¶94} While appellant asks this Court to conduct a manifest-weight-of-the-
evidence review of the trial court’s determination, we cannot do so because appellant did
not timely file objections to the magistrate’s decision. We cannot conclude that the
magistrate's decision, or the trial court's adoption thereof, in this regard amounted to plain
error that “seriously affect[ed] the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.” [CITATION], at ¶ 37, quoting [CITATION], syllabus. Appellant’s tenth assignment of error is overruled.
XI.
{¶95} In his final assignment of error, appellant contends the trial court committed
plain error in failing to conclude that appellee’s allegedly excessive spending of
$233,559.19 in 4.5 years constituted financial misconduct. He argues that since he
managed the money with no issues from 2000-2016 and appellee spent the money in a
“non-customary” manner when she took over discretionary spending in 2016, appellee’s
actions amount to financial misconduct.
{¶96} Appellant testified to numerous bank deposits, transfers, and Greenlight
transfers which he believes proves his allegations of “excessive spending” by appellee
from 2016 through the date when appellee moved out of the marital home in 2021.
{¶97} The magistrate found the parties disagreed throughout their marriage how
to spend money; however, this constant disagreement was insufficient to meet the burden
of financial misconduct. We find no plain error in this determination. Appellant believed Delaware County, Case No. 23 CAF 10 0095
appellee should have been investing and covering their discretionary spending from the
funds he gave her. He admits that though this was his expectation, he chose not to check
account balances he had access to, but felt since appellee did not ask “permission” or
invest it as he thought she should, it was financial misconduct. Appellee testified that
while appellant kept certain funds for himself and spent money on his family, the budgeted
amount he provided her was not sufficient to meet expenses, and that the bulk of the
funds at issue were used for the parties’ three children and items around the home.
{¶98} The magistrate made the determination that the spending by appellee was
not excessive and no financial misconduct occurred based upon the conflicting testimony
of the parties. A determination on financial misconduct rests on the facts and
circumstances of each case. [CITATION]. As such,
the trier of fact is given the duty to determine the credibility of each party’s assertions in
determining financial misconduct. Id. The determination of whether a witness or
evidence is credible rests solely with the finder of fact, and we may not substitute our
judgment. [CITATION]. If there are inconsistencies in the testimony or evidence offered at trial, the trier of fact is
free to believe or disbelieve any or all of the evidence presented. [CITATION].
{¶99} We find the cases cited by appellant not to be analogous to the instant case.
First, none of the cases involve the use of the plain error doctrine; rather, they involved
an abuse of discretion review. Further, they involved different factual scenarios than what
was presented in this case. [CITATION] (spending was
post-separation; withdrew funds from a home equity line of credit while temporary Delaware County, Case No. 23 CAF 10 0095
restraining order was in place; appellant admitted she was angry and overspent); [CITATION]
(during the marriage, husband withdrew and spent
all of his retirement without wife’s knowledge); [CITATION]
(wife took the money she was supposed to use the pay the bills and she did
not, causing the home to go into foreclosure and the utilities to be shut off).
{¶100} Appellant essentially requests this Court conduct a manifest-weight-of-the-
evidence review of the trial court’s determination. We decline to do so since appellant
did not file timely objections to the magistrate’s decision. We cannot conclude that the
magistrate's decision, or the trial court's adoption thereof, in this regard amounted to plain
error that “seriously affect[ed] the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.” [CITATION], quoting [CITATION], 79 Ohio St.3d 116,
syllabus. Appellant’s eleventh assignment of error is overruled.
{¶101} Based on the foregoing, appellant’s first, fourth, fifth, sixth, seventh, eighth,
ninth, tenth, and eleventh assignments of error are overruled. Appellant’s second and
third assignments of error are overruled in part and sustained in part.
{¶102} Accordingly, the September 29, 2023 judgment entry of the Delaware Court
of Common Pleas, Domestic Relations Division is affirmed in part, and reversed and
remanded in part. Upon remand, the trial court shall only address the narrow issues of
(1) determining whether the fact that the parties stipulated to the value of Appellant’s
Retirement Accounts impacts the division date of Appellant’s Retirement Accounts
(Nationwide 401(K), Nationwide Pension, Nationwide Deferred Compensation,
Nationwide Supplemental Defined Contribution Plan, Appellant’s Merrill Lynch IRA) and Delaware County, Case No. 23 CAF 10 0095
(2) if necessary, after determining whether the stipulations impact the division date of
Appellant’s Retirements Accounts, to provide clarification as to why the date of division
of the retirement accounts differs in Exhibit 1 and the judgment entry.
By Gwin, P.J.,
Wise, J., and
King, J., concur
[CITATION]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
WILLIAM FREYTAG,
CASE NO. 17-23-14
PLAINTIFF-APPELLANT,
v.
JOYCE FREYTAG, OPINION
DEFENDANT-APPELLEE.
Appeal from Shelby County Common Pleas Court
Domestic Relations Division
Trial Court No. 20 DV 000140
[SEGMENT 8]
Judgment Affirmed
Date of Decision: June 24, 2024
APPEARANCES:
Todd D. Severt and Bonnie-Blue T. Sullivan for Appellant
Quentin M. Derryberry II for Appellee Case No. 17-23-14
WILLAMOWSKI, P.J.
{¶1} Plaintiff-appellant William J. Freytag (“William”) appeals the
judgment of the Domestic Relations Division of the Shelby County Court of
Common Pleas, arguing that the trial court erred in valuing and classifying certain
assets; appointing an expert to conduct valuations; failing to grant a continuance;
and finding him to be physically competent to represent himself. For the reasons
set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} William and Joyce E. Freytag (“Joyce”) were married on January 14,
1989. On June 24, 2020, William filed a complaint for divorce. The assets subject
to this litigation included several companies: Albert Freytag, Inc. (“AFI”); J&B
Land Company, Ltd. (“J&B Land”); and 493 Realty Services, LLC (“493 Realty
Services”). The final hearing was initially set for April 27, 2021 but was
rescheduled to November 23, 2021.
{¶3} During the final pretrial hearing on November 12, 2021, the magistrate
discovered that the value of a number of substantial assets in the marital estate had
not been assessed and that documents that could establish the value of these assets
had not yet been produced. Concluding that a decision could not be rendered in the
absence of such information, the trial court appointed a certified public accountant,
Case No. 17-23-14
Terry L. Yoho (“Yoho”), to conduct valuations for the assets in the marital estate
and then continued the final hearing.
{¶4} On August 31, 2022, William’s lawyer filed a motion to withdraw as
counsel on the grounds that “the attorney-client relationship ha[d] become offensive
and combative.” (Doc. 189). This motion was granted on September 15, 2022. On
September 28, 2022, the trial court scheduled the final hearing for January 23, 2023.
Yoho submitted her final report on November 28, 2022. This report concluded that
AFI had a value of $4,836,000.00; that J&B Land owned two properties worth
$314,620.00; that 493 Realty Services held properties worth $215,000.00; and that
the marital estate was worth a total of $12,233,188.00.
{¶5} On January 23, 2023, William appeared at the final hearing without an
attorney and indicated that he intended to proceed pro se. Yoho, Joyce, and William
testified at the hearing. William also called a certified public accountant working
with AFI, Larry E. Elsner (“Elsner”), as a witness. In a decision issued on March
7, 2023, the magistrate determined that AFI, J&B Land, and 493 Realty Services
were marital assets that were worth the amounts stated in Yoho’s report. William
then retained a new attorney. Both parties then filed objections to the magistrate’s
decision. On August 18, 2023, the trial court issued a judgment entry overruling the
objections of the parties and granting a divorce.
{¶6} William filed his notice of appeal on September 14, 2023 and raises the
following seven assignments of error:
```
First Assignment of Error
The trial court erred in finding the equipment located at 4625
Hardin-Wapak Road, Sidney, Ohio has a value of $400,000.00.
Second Assignment of Error
The trial court erred in failing to award Appellant his separate
property interest in the Prenger account ending in 4293.
Third Assignment of Error
The trial court erred in failing to award Appellant his separate
property interest in Albert Freytag, Inc.
Fourth Assignment of Error
The trial court erred in failing to award Appellant his separate
property interest in the J&B Land Company, Ltd.
Fifth Assignment of Error
The trial court erred in relying upon the court-appointed expert’s
valuation.
Sixth Assignment of Error
The trial court erred in denying Appellant his request for a
continuance.
Seventh Assignment of Error
The trial court erred in finding Appellant to be physically
competent to be self-represented.
We will consider the assignments of error in the following order: sixth, seventh,
second, third, fourth, first, and fifth.
``` Case No. 17-23-14
Sixth Assignment of Error
{¶7} William asserts that the trial court abused its discretion by failing to
grant him a continuance.
Legal Standard
{¶8} In evaluating a ruling on a motion for a continuance, an “appellate court
must ‘apply a balancing test, weighing the trial court’s interest in controlling its own
docket, including facilitating the efficient dispensation of justice, versus the
potential prejudice to the moving party.’” [CITATION], quoting [CITATION].
In considering a motion for a continuance, a court should consider (1)
the length of the delay requested; (2) whether other continuances have
been requested and granted; (3) any inconvenience to parties,
witnesses, opposing counsel, and the court; (4) whether the requested
delay is for a legitimate purpose or is instead dilatory, purposeful, or
contrived; (5) whether the defendant contributed to the situation that
gives rise to the motion for a continuance; and (6) other relevant
factors, depending on the unique facts of a case.
[CITATION]. “It is well established
under Ohio law that the decision to grant or deny a continuance lies within the sound
discretion of the trial court.” [CITATION].
An abuse of discretion is more than an error of judgment but is present where a
determination is arbitrary, capricious, or unreasonable. [CITATION].
Case No. 17-23-14
Legal Analysis
{¶9} In this case, William did not file a formal request for a continuance with
the trial court.1 At the final hearing, he asserted that Yoho’s report was based upon
“incomplete” information and mentioned he had wanted a continuance or
“extension” to compile better business records. (Tr. 24, 106). However, Elsner
stated that AFI’s business records were a “[s]hambles” and testified about
significant portions of financial data that were not available. (Tr. 355). His
testimony contains no indication that current or complete records could be available
in the near future. The record contains no indication that William could have
obtained any such information if a continuance had been granted.
{¶10} Further, the final hearing was originally scheduled for April 27, 2021;
was then delayed until November 23, 2021; and then rescheduled for January 23,
2023. These delays were largely occasioned by issues with discovery; the
availability of various records; and the need to give Yoho time to value the marital
assets. Thus, the record indicates that the trial court repeatedly sought to
accommodate these ongoing discovery issues but contains no indication that a
continuance would have accomplished anything other than further delay.
1
On December 22, 2022, William filed a pro se motion to transfer venue that mentioned his difficulties in
obtaining various business records. At the final hearing, he mentioned that he had asked for a continuance.
This appears to be a reference to his earlier motion to transfer. In considering the objections to the
magistrate’s decision, the trial court refused to “consider this motion [to transfer] to be one for continuance.”
(Doc. 335). Nonetheless, we will still consider the appropriateness of a continuance in this situation.
Case No. 17-23-14
{¶11} On appeal, William argues that the trial court should have granted him
a continuance to obtain counsel. But his statements at the final hearing indicate that
he wanted a continuance to compile more recent business records. William was
initially represented in this case, but his counsel filed a motion to withdraw five
months before the final hearing. The motion to withdraw was granted over four
months prior to the final hearing. Thus, William had several months to retain
counsel, but the record contains no indication that he took any steps to secure
representation.
{¶12} When William appeared at the final hearing without an attorney, the
magistrate asked him if he was going to proceed pro se. In response, William
affirmed that he intended to represent himself at the final hearing. The record does
not suggest that he would have used any delay occasioned by a continuance to obtain
counsel. Having examined the facts in the record, we find no indication that the
trial court abused its discretion by not granting a continuance. The sixth assignment
of error is overruled.
Seventh Assignment of Error
{¶13} William asserts that the trial court should have concluded that he was
not physically competent to represent himself at the final hearing.
Legal Standard
{¶14} “The presumption of the law is that the action of the trial court is legal
[SEGMENT 9]
until the contrary affirmatively appears * * *.” [CITATION]
Case No. 17-23-14
*3 (3d Dist. Nov. 24, 1987), quoting [CITATION] The appellant has the “burden to affirmatively demonstrate to the
appellate court that error has occurred in the action of the trial court.” [CITATION] This involves “formulating an
argument on appeal and supporting that argument with citations to the record and to
legal authority.” [CITATION] An appellate court does not have a “duty
to construct legal arguments to support an appellant’s appeal.” [CITATION]
Legal Analysis
{¶15} William appeared at the final hearing without an attorney and affirmed
that he intended to represent himself. He argues that the trial court should have
found him physically incompetent to proceed pro se because, at the final hearing,
others had to repeat themselves on several occasions after he indicated he could not
hear their statements.2 In his brief, William has not identified any legal authority
that would suggest that the trial court should have conducted a competency
evaluation in such a situation or that would indicate that the trial court erred by
permitting him to proceed pro se. See App.R. 16(A)(7).
2
The record does not indicate that any hearing issues that William may have had ultimately interfered with
his ability to understand what was transpiring at the proceeding. Once these unheard statements were
repeated, William was able to respond appropriately. The appellee also suggests that these hearing issues
were related to the acoustics of the room by pointing to several other instances in which others in the room
had to ask for statements to be repeated. Tr. 27, 48, 66, 98, 115, 116, 128, 131, 140, 147, 278.
Case No. 17-23-14
{¶16} As a general matter, “[a]ny person can choose to represent himself.”
[CITATION]. Further, a “trial court
may not mandate that a divorce litigant has an attorney.” [CITATION]. On appeal, William has not demonstrated that the trial court erred by failing to stop
him from choosing to do what he had a right to do. Because he has failed to carry
the burden of affirmatively demonstrating that the trial court committed an error,
the seventh assignment of error is overruled.
Second Assignment of Error
{¶17} William argues that the trial court improperly classified the
$979,875.00 in Prenger Account #-4293 as a marital asset.
Legal Standard
{¶18} Under R.C. 3105.171, a two-step process generally governs the
division of the assets between the parties to a divorce proceeding. [CITATION].
First, the trial court must “classify the assets of
the parties as marital or separate.” [CITATION].
Second, “the trial court must equitably allocate the marital and separate property.”
[CITATION].
{¶19} “Marital property generally includes all property acquired by either
party during the marriage as well as the appreciation of separate property due to the
labor, monetary, or in-kind contributions of either party during the marriage.”
Case No. 17-23-14
[CITATION], quoting [CITATION]. Separate property cannot be marital property. R.C.
3105.171(A)(3)(b). Under R.C. 3105.171(A)(6)(a), the following assets constitute
separate property:
(i) An inheritance by one spouse by bequest, devise, or descent during
the course of the marriage;
(ii) Any real or personal property or interest in real or personal
property that was acquired by one spouse prior to the date of the
marriage;
(iii) Passive income and appreciation acquired from separate property
by one spouse during the marriage;
(iv) Any real or personal property or interest in real or personal
property acquired by one spouse after a decree of legal separation
issued under section 3105.17 of the Revised Code;
(v) Any real or personal property or interest in real or personal
property that is excluded by a valid antenuptial or postnuptial
agreement;
(vi) Compensation to a spouse for the spouse’s personal injury, except
for loss of marital earnings and compensation for expenses paid from
marital assets;
(vii) Any gift of any real or personal property or of an interest in real
or personal property that is made after the date of the marriage and
that is proven by clear and convincing evidence to have been given to
only one spouse.
“The commingling of separate property with other property of any type does not
destroy the identity of the separate property as separate property, except when the
separate property is not traceable.” R.C. 3105.171(A)(6)(b). Further, as a general
Case No. 17-23-14
matter, “the holding of title to property by one spouse individually or by both
spouses in a form of co-ownership does not determine whether the property is
marital property or separate property.” R.C. 3105.171(H).
{¶20} “Property acquired during a marriage is presumed to be marital
property unless it can be shown to be separate.” [CITATION] Further, “[i]f the parties contest whether an asset is marital or separate
property, the asset is presumed to be marital property unless it is proven otherwise.”
[CITATION].
{¶21} “The party seeking to establish that property is separate rather than
marital bears the burden of proof, by a preponderance of the evidence, to trace the
asset to separate property.” [CITATION], quoting [CITATION] “The burden to prove the separate identity of property can be
met with documents or testimony, but ‘merely claim[ing] that the property * * *
constitutes * * * separate property does not make it so.’” [CITATION], quoting [CITATION] “Preponderance of the evidence means the greater weight of the
evidence that is necessary to destroy the equilibrium.” [CITATION]
====== Case No. 17-23-14
{¶22} In general, “[t]he separate property is retained by the party who
obtained that particular asset regardless of whether the separate property was
acquired before or during the marriage.” [CITATION], supra, at ¶ 8, citing R.C.
3105.171(D). “The marital property, on the other hand, is to be divided equally
between the parties unless such a division would be inequitable.” [CITATION],
[citation]. This is because “each
spouse is considered to have contributed equally to the acquisition of marital
property.” [CITATION], supra, at ¶ 64, quoting [CITATION], supra, at ¶ 15.
{¶23} “The trial court’s classification of property as marital or separate is a
factual determination” and is reviewed under a manifest weight standard. [CITATION]. Accordingly, the classification of an
asset will not be reversed if the record contains some competent, credible evidence
that supports the trial court’s determination. Id. “This highly deferential standard
of review permits the affirmation of the trial court’s judgment if there is ‘even some
evidence’ to support the court’s finding.” [CITATION], quoting [CITATION], *1 (3d Dist. Dec. 5, 2001).
{¶24} Further, “a party proceeding pro se is held to the same procedural
standards as other litigants that have retained counsel.” [CITATION]. For this reason, pro se litigants “must comply with the rules of
procedure and must accept the consequences of their own mistakes.” [CITATION].
Case No. 17-23-14
[CITATION], ¶ 7 (3d Dist.), quoting [CITATION], ¶ 16 (8th Dist.).
Legal Analysis
{¶25} The record establishes that the parties disputed whether Prenger
Account #-4293 was established before or during the marriage. The trial court noted
that the only documentation that was submitted by the parties for this account
“indicates the earliest dividend deposit to be January 18, 2005.” (Doc. 335). While
William asserted that this account was funded with monies inherited from his
parents before his marriage to Joyce, he did not provide any documentation at the
hearing that could support his contentions against Joyce’s contentions. The trial
court apparently chose not to rely upon William’s unsupported representations and
classified this account as marital property.
{¶26} On appeal, William points to the fact that only his name was listed on
this account. But this fact does not establish that these funds are separate property
because “the form in which title is held is not determinative of whether the property
is separate or marital.” [CITATION], supra, at ¶ 22, citing R.C. 3105.171(H). See
[CITATION] (having an investment account “in the name of one spouse individually or in the names of both
spouses does not determine whether that property is marital or separate”). Since the
trial court’s determination is supported by some competent, credible evidence, we
Case No. 17-23-14
conclude that William has not established that the trial court erred in classifying this
account as marital. The second assignment of error is overruled.
Third Assignment of Error
[SEGMENT 10]
{¶27} William argues that the trial court erred by classifying AFI as a marital
asset.
Legal Standard
{¶28} We reincorporate the legal standard for asset classification as set forth
under the second assignment of error.
Legal Analysis
{¶29} William argues that the trial court should have classified AFI as
separate property.3 Since the record establishes that the parties disputed the
classification of this asset, William had the burden of establishing that AFI was
separate property. See [CITATION]. At the final hearing, statements from Joyce
and William indicated that he purchased at least one half of the shares in AFI after
his brother’s passing in 2015. Joyce also testified that, during the marriage, she
worked for AFI on an “as needed” basis but was not personally compensated for her
contributions.
3
In the final distribution of assets, William retained full ownership of AFI.
====== End of Part ====== Case No. 17-23-14
{¶30} Yoho testified that AFI’s tax returns indicated that William held the
shares in AFI and that William had told her that “he owned some shares [in AFI]
prior to the marriage.” (Tr. 37). However, Yoho stated that William “did not
provide * * * a share journal or any other information that would support” this claim.
(Tr. 37). While questioning Yoho, William asserted that the records from his first
divorce would have shown that he owned one half of AFI before he married Joyce.
But he did not submit any documentation to substantiate this claim.
{¶31} The trial court concluded that William failed to produce evidence that
could establish that any portion of AFI was separate property and that “[m]erely
claiming” that AFI was not a marital assets at the final hearing was not sufficient to
carry the burden of establishing that it was separate property. (Doc. 335). See
[CITATION], supra, at ¶ 28. Having examined the evidence in the record, we
conclude that the trial court’s conclusion was based upon some competent, credible
evidence. The third assignment of error is overruled.
Fourth Assignment of Error
{¶32} William argues that the trial court erred in classifying J&B Land as a
marital asset.
Legal Standard
{¶33} We reincorporate the legal standard for asset classification as set forth
under the second assignment of error.
====== End of Part of a Court Ruling ====== Case No. 17-23-14
Legal Analysis
{¶34} The evidence in the record establishes that J&B Land was
incorporated on December 19, 1996. Ex. 34. Further, the assets owned by this
entity consisted of two real estate holdings. The property records submitted with
Yoho’s report indicated that J&B Land acquired these two assets in 2006 and 2018.
Since J&B Land and its assets were acquired during the marriage, the trial court
correctly presumed that these assets were marital. The trial court then noted that
William did not present any “evidence to overcome” this presumption by tracing
these purchases to separate property. (Doc. 335). Having examined the record, we
conclude that the trial court’s classification of J&B Land is supported by some
competent, credible evidence. The fourth assignment of error is overruled.
First Assignment of Error
{¶35} William argues that the trial court erred in assigning a value of
$400,000.00 to equipment that was stored at a location on Hardin-Wapak Road.
Legal Standard
{¶36} “The process of fashioning an equitable division of marital property
will generally require a trial court to assign or adopt valuations for marital assets.”
[CITATION], ¶ 13 (3d Dist.).
In determining the value of assets, the trial court ‘is not required to
adopt any particular method of valuation.’ [CITATION],
925 N.E.2d 167, ¶ 27 (3d Dist.). ‘Rigid rules to determine value cannot be established, as equity
depends on the totality of the circumstances.’ [CITATION]
Case No. 17-23-14
Auglaize No. 2-14-06, 2014-Ohio-5625, ¶ 18 quoting [CITATION].
Id. at ¶ 13. Rather, a trial court must “have a rational, evidentiary basis for assigning
value to marital property.” [CITATION].
‘The valuation of property in a divorce case is a question of fact.’
[CITATION]. ‘Accordingly, a trial court’s decision pertaining to the
valuation of property will be reviewed under a manifest weight of the
evidence standard and will not be reversed so long as it is supported
by some competent and credible evidence.’ Id.
Id. at ¶ 12. “When parties present substantially different valuations of an asset, the
trial court is free to believe all, part, or none of any witnesses’ testimony.” [CITATION].
Legal Analysis
{¶37} At the final hearing, Yoho testified that the equipment at Hardin-
Wapak Road was assigned a value of $400,000.00. Her testimony indicates that this
valuation was not based on an assessment from a professional evaluator but was
“based off of what Mr. Freytag believed it to be[.]” (Tr. 81). She affirmed that the
figure of $400,000.00 was simply what “Mr. Freytag and his counsel decided it [the
equipment] was worth[.]” (Tr. 80). William also assigned a value of $400,000.00
to this equipment on a table of his assets that was submitted during this litigation.
{¶38} Since the value assigned to this equipment came from William, he is
ultimately arguing that the trial court erred by relying on the figure that he provided.
Case No. 17-23-14
Further, in contesting this valuation, he has not identified any defects with the
number that he supplied. See [CITATION]. We conclude that the trial court’s valuation is not against the manifest weight
of the evidence. The first assignment of error is overruled.
Fifth Assignment of Error
{¶39} William asserts that the trial court should not have sua sponte
appointed Yoho as an expert and that her valuations of AFI, J&B Land, and 493
Realty Services were incomplete or deficient.
Legal Standard
{¶40} We reincorporate the legal standards for the valuation and
classification of property as set forth under the first and second assignments of error.
Legal Analysis
{¶41} William raises seven arguments under this assignment of error. First,
he asserts that the trial court should not have appointed Yoho as an expert because
Joyce did not file a timely answer.4 William asserts that the trial court should have
proceeded with an uncontested divorce instead of accepting Joyce’s untimely
answer and appointing an expert. But even if this matter had continued to proceed
4
William filed a complaint on June 24, 2020. Joyce’s attorney filed a notice of appearance on July 27, 2020.
Thereafter, Joyce actively participated in the litigation. After Joyce filed an answer in January of 2021,
William responded by filing a motion to dismiss. The trial court deemed Joyce’s answer timely filed and
denied William’s motion to dismiss.
Case No. 17-23-14
as an uncontested divorce, the record contains no indication that the magistrate
would not have ultimately appointed an expert.
{¶42} Initially, we note that Civ.R. 75(F) expressly exempts divorce
proceedings from the provisions in Civ.R. 55 that permit default judgments to be
granted. [CITATION]. Thus, even if an answer has
not been filed in a divorce proceeding, the defendant is still not prevented “from
contesting * * * issues in the divorce” or “presenting evidence” at the final hearing.
[CITATION], quoting [CITATION]. Further, in uncontested
divorces, trial courts still have “an independent judicial obligation to divide the
marital and separate property equitably between the parties * * *.” [CITATION]. In this process,
[a] trial court must generally assign and consider the values of marital
assets in order to equitably divide those assets. * * * A court cannot
satisfy its duty without probative evidence of the value of marital
assets. * * *
Nevertheless, a party’s failure to put on any evidence of value does
not permit the court to assign an unknown as the value of a marital
asset.
(Citations omitted.) [CITATION]. In
some cases, the trial court can “perform its statutory charge to divide marital assets
equally only by appointing a qualified, independent appraiser to provide the court a
report on which it c[an] rely.” [CITATION].
====== End of Part of a Court Ruling ====== Case No. 17-23-14
{¶43} Turning to the facts of the case presently before us, a final hearing had been scheduled for November 23, 2021. However, during a pretrial conference on November 12, 2021, the magistrate concluded “that the marital estate had not been adequately assessed or appraised which would have left the magistrate unable to render a decision. Consequently, * * * this Court caused for an expert to be appointed * * *.” (Doc. 243). The trial court also noted the need for an expert was evident in the docket because of the recurring issues with obtaining information about these asset values during discovery.
[SEGMENT 11]
{¶44} By the time of the final hearing, William was also unable to produce accurate or complete records that could establish an alternative valuation for AFI. An accountant involved with the business also testified that the company’s records were a “shambles.” (Tr. 355). The evidence in the record contains no indication that the trial court could have arrived at any reasonably accurate valuation for AFI or the marital estate if an expert had not been appointed. See [CITATION].
{¶45} William also suggests that Yoho’s appointment was procedurally deficient because the trial court acted sua sponte. However, he does not direct us to any legal authority in support of this contention. To the contrary, our review of the case law indicates that trial courts have appointed experts to appraise assets that were not valued or had disputed values. [CITATION]
Case No. 17-23-14
43 (2d Dist.); [CITATION], *2-3 (5th Dist. Dec. 18,
1990); [CITATION], *1 (9th Dist. Nov. 12, 1997); [CITATION],
1995 WL 311721, *1 (11th Dist. Apr. 7, 1995); [CITATION],
*1 (12th Dist. Apr. 19, 1991).
{¶46} Finally, the trial court noted that the docket contained no indication
that William objected after the magistrate issued an order appointing an expert.
(Doc. 355). At the final hearing, William also did not object to Yoho testifying, her
qualifications as an expert, or the admission of her report. See [CITATION],
2005-Ohio-4493, ¶ 51 (2d Dist.). For these reasons, we conclude that William has
not demonstrated that the trial court erred in appointing Yoho. The first argument
is without merit.
{¶47} Second, William argues that AFI’s valuation was not current because
Yoho’s appraisal determined the company’s value as of September 30, 2019.
‘Valuations of the marital property must be determined as to a specific
date.’ [CITATION].
‘Generally, a domestic relations court should use the same set of dates
in valuing marital property. However, in certain instances there may
be an equitable reason for selecting a different date on which to value
different marital assets. In choosing a different valuation date for
certain assets, the court must adequately explain its reasons for doing
so.’ [CITATION].
Case No. 17-23-14
Mousa, supra, at ¶ 23. We review challenges to a valuation date for an asset under
an abuse of discretion standard. Novak, supra, at ¶ 18. See also [CITATION]
{¶48} In this case, Yoho’s report concluded that AFI had a value of
$4,836,000.00 as of September 30, 2019. Yoho testified that her report used this
valuation date because 2019 was the last year in which AFI had filed a tax return.
She further testified that she was informed by AFI’s accountant that its “financial
information was not up to date, it was not reconciled, it was not accurate, that [she]
* * * could not rely on it, that he could not prepare a tax return at this time.” (Tr.
26). For this reason, she stated AFI did not have enough financial information “to
do an evaluation [that was] more current.” (Tr. 42).
{¶49} Further, Elsner confirmed that AFI had not filed a tax return since
September of 2019 and said that accurate records from after this point could not be
“easily produce[d].” (Tr. 315). The trial court also noted that William did not
“offer[] any other date that was possible from the evidence.” (Doc. 335). See also
[CITATION]. Having examined the record,
we find no indication that the trial court abused its discretion in using this valuation
date. The second argument is without merit.
{¶50} Third, William argues that Yoho’s valuation of AFI relied on
incomplete information. However, Elsner testified that, to obtain complete financial
records for AFI, the accountants would essentially “have to start over” and would
Case No. 17-23-14
have to “reenter every transaction.” (Tr. 350, 351). He stated that this process
would be “way expensive” and “quite time consuming.” (Tr. 351). Elsner also
indicated that some of the company’s information was “no longer accessible” and
that the available records were not aligning with AFI’s general ledger. (Tr. 356).
William’s statements confirmed many of these issues by detailing the problems that
several bookkeepers had caused in this timeframe.
{¶51} William further argues that Yoho should have incorporated a draft of
AFI’s 2020 tax returns in her analysis. However, Elsner’s testimony does not
suggest that this draft was finalized or ready to file. Yoho testified that she asked
for additional information that detailed the company’s finances beyond 2019 but
was informed by AFI’s accountant that she could not “rely on the financial
information that he could produce from the company because it wasn’t reconciled
and it wasn’t correct.” (Tr. 27). She stated that she used the most recent information
that Elsner had represented as reliable.
{¶52} William also asserts that Yoho’s valuation was deficient because she
did not conduct a site visit. However, he has not raised an argument that would
suggest that a site visit was a necessary component of determining AFI’s value. At
the final hearing, Yoho presented a detailed report that described the financial
information, methodology, and assumptions that went into determining the fair
market value of AFI. She then testified extensively at trial about the process that
was used to determine the value of the company. Given the testimony about the
Case No. 17-23-14
reliability of AFI’s financial records after 2019, we conclude that this argument fails
to establish that the valuation assigned to AFI is against the manifest weight of the
evidence. The third argument is without merit.
{¶53} Fourth, William argues that the valuation of AFI did not account for
all of the company’s liabilities. However, he has not identified any evidence in the
record that could establish that AFI had liabilities that the trial court or Yoho
disregarded in determining the value of the company. At the final hearing, he
admitted that he did not have any documents that could establish AFI had these
liabilities. The appellant has the “burden to affirmatively demonstrate to the
appellate court that error has occurred in the action of the trial court.” [CITATION], supra,
at *2. In the absence of evidence that AFI had these alleged liabilities, William has
failed to establish that the trial court erred. The fourth argument is without merit.
{¶54} Fifth, William argues that the Yoho did not provide any testimony to
support the valuation of the two real estate holdings of J&B Land. However, Yoho
indicated that her firm relied on figures produced by the Consolidated Appraisal
Services Company (“CASC”). Yoho submitted a detailed report from CASC that
included the methodology and calculations that were used in valuing these assets.
Yoho also submitted copies of the county auditor’s appraisals of these properties.
Both sources valued these two properties at $16,200.00 and $298,420.00. Further,
in a table that detailed his assets, William represented the value of these two real
estate holdings as being $16,200.00 and $298,420.00. We conclude that these
Case No. 17-23-14
valuations are supported by some competent, credible evidence. The fifth argument
is without merit.
{¶55} Sixth, William argues that the trial court erred in classifying 493
Realty Services as marital property. However, the record indicates that this entity
was formed in 2012. Further, all three properties held by this company were
purchased in 2012. Since these real estate holdings were acquired during the
marriage, these assets are presumed to be marital. Additionally, William did not
present any information to establish that these assets were separate property under
R.C. 3105.171(A)(6) or traceable to separate property. For this reason, we conclude
that the trial court’s determination is supported by some competent, credible
evidence. The sixth argument is without merit.
{¶56} Seventh, William argues that the expert’s valuation of 493 Realty
Services’s three real estate holdings was not properly supported by any evidence.
Yoho testified that the total value of the property owned by 493 Realty Services was
$215,000.00. These valuations were provided to Yoho by CASC. A copy of
CASC’s report for these properties was submitted to the trial court. This report
contained detailed descriptions of CASC’s methodology and calculations. Based
on these valuations, the trial court assigned a total value of $215,000.00 to the three
properties owned by 493 Realty Services.
{¶57} On appeal, William points to the fact that Yoho testified that she never
received a balance sheet for 493 Realty Services. For this reason, the value of this
Case No. 17-23-14
[SEGMENT 12]
entity in her report was the equivalent of the real estate it owned. But William
argues that the absence of a balance sheet makes her valuation of this company
incomplete. However, the trial court gave William the opportunity to submit any
additional information that might affect the valuation of the companies in which he
had an interest. He has not identified any records that he submitted that would have
affected these valuations in any way. We conclude that the valuation assigned to
493 Realty Services was supported by some competent, credible evidence. The
seventh argument is without merit. Since all seven arguments raised herein were
meritless, the fifth assignment of error is overruled.
Conclusion
{¶58} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Domestic Relations Division of the Shelby
County Court of Common Pleas is affirmed.
Judgment Affirmed
WALDICK and MILLER, J.J., concur.
/hls
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'bobie-v-bobie', which should be replaced with `[CITATION]`.
[CITE AS `[CITATION]`.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
MIA PORTER, :
Appellee, : CASE NO. CA2023-07-086
: OPINION
- vs -
/15/2024
:
DORSEY PORTER, :
Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR21 06 0457
Muhammad Hamidullah, for appellee.
Victor Dwayne Sims, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Dorsey Porter ("Husband"), appeals from the final divorce decree
issued by the Butler County Court of Common Pleas, Domestic Relations Division,
terminating his marriage to Mia Porter ("Wife"). For the reasons outlined below, we affirm.
Facts and Procedural History
{¶ 2} On February 14, 2005, Husband and Wife were married in Butler County,
Ohio. There were no children born issue of the marriage. Husband is a skilled specialized Butler CA2023-07-086
mechanic who, prior to the COVID-19 pandemic, had been employed by Lamborghini car
dealerships throughout the country. This includes positions in Florida, Missouri, New
York, and Virginia. Wife moved with Husband to each of those four states and secured
employment for herself each time earning an annual salary of just over $39,000. 1
Husband has since gained employment with American Airlines in California where in both
2020 and 2021 Husband received an annual salary of approximately $82,000.
{¶ 3} On June 8, 2021, after more than 16 years of marriage, Wife filed for divorce
from Husband. Wife did this based on Husband's alleged gross neglect of duty and her
and Husband's purported incompatibility. Husband filed an answer and counterclaim for
divorce from Wife on September 23, 2021.
{¶ 4} On December 12, 2022, the domestic relations court held a final divorce
hearing. There is no dispute that on the date of the final divorce hearing Husband was
51 years old and living in the San Francisco, California area, whereas Wife was 44 years
old and living in Middletown, Ohio.2 The domestic relations court heard testimony from
both Husband and Wife during the final divorce hearing. Husband and Wife also
introduced several exhibits for the domestic relations court's consideration. This included
both Husband's and Wife's affidavits of their anticipated monthly expenses, wherein
Husband claimed his anticipated expenses living in California were $3,000 a month, while
Wife claimed her anticipated monthly living expenses in Ohio were $2,600 per month.
{¶ 5} On January 31, 2023, the domestic relations court issued a decision
granting Husband and Wife a divorce on the grounds of incompatibility. In so doing, the
1. The record indicates that Wife is also employed as a singer and performer. However, neither Husband
nor Wife provided any evidence regarding the amount of income, if any, that Wife earned from singing
and/or performing.
2. The record indicates that Husband lives in Mountain View, California, a city located in the area between
San Francisco and San Jose.
Butler CA2023-07-086
domestic relations court determined that the proper termination date of the marriage was
the date that the final divorce hearing took place, December 12, 2022. This resulted in
the domestic relations court awarding Wife one-half the marital portion of Husband's
401(K) earned during the marriage while Husband was employed with American Airlines.3
The domestic relations court also ordered Husband to pay Wife spousal support in the
amount of $900 per month for a period of five years.4 The domestic relations court
determined that this spousal support award was appropriate and reasonable given "the
age of the parties, the 17 year marriage; the disparity of income; the property division
herein; the tax consequences for Husband and Wife; the disparity in earning potential of
the parties; [and] the parties' good standard of living during the marriage."
Husband's Appeal and Two Assignments of Error
{¶ 6} On June 29, 2023, the domestic relations court issued judgment entry and
final decree of divorce, thereby completing Husband's and Wife's separation. The
following month, on July 27, 2023, Husband filed a notice of appeal from the domestic
relations court's final divorce decree. Oral argument was thereafter had before this court
on March 4, 2024. Husband's appeal now properly before this court for decision,
Husband has raised two assignments of error for review.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
FAILED TO SELECT A MARRIAGE TERMINATION DATE.
{¶ 9} In his first assignment of error, Husband argues the domestic relations court
erred by using the date of the final divorce hearing, December 12, 2022, as the de facto
3. This amounted to Wife receiving approximately $11,000 from Husband's 401(K) with American Airlines.
4 This would result in Husband paying Wife a total of $10,800 in spousal support annually, or $54,000 at
the end of five years, assuming Wife did not pass away, remarry, or cohabitate with another individual during
that time.
Butler CA2023-07-086
termination date of his and Wife's marriage for property division purposes. We disagree.
{¶ 10} "Generally, the proper date for the termination of a marriage, for purposes
of property division, is the date of the final divorce hearing." [CITATION], ¶ 20, citing [CITATION], ¶ 8. This is a "statutory presumption"
that is set forth under R.C. 3105.171(A)(2)(a). [CITATION], ¶ 24. Specifically, pursuant to R.C.
3105.171(A)(2)(a), the term "during the marriage" means "the period of time from the date
of the marriage through the date of the final hearing in an action for divorce or in an action
for legal separation."
{¶ 11} "However, pursuant to R.C. 3105.171(A)(2)(b), if the domestic relations
court finds the time period between the date of the marriage and the date of the final
divorce hearing would be 'inequitable,' the domestic relations court may select dates that
it considers equitable in determining marital property." [CITATION], ¶ 30. To do this, the domestic relations
court need not make an explicit "equitable" or "inequitable" finding. [CITATION], ¶ 51. Rather, based on the plain
language of the statute, the domestic relations court is merely required to "select dates
that it considers equitable in determining marital property" if the court determines that
using either the date of the marriage or the date of the final divorce hearing "would be
inequitable." Id.
{¶ 12} Because the domestic relations court has broad discretion to select dates it
considers equitable, and because a domestic relations court's determination of the
termination date of a marriage is largely a question of fact, this court will not disturb the
domestic relations court's decision setting the termination date of a marriage absent an
Butler CA2023-07-086
abuse of discretion. [CITATION] "The abuse of discretion standard is based upon
the principle that a trial court must have the discretion in domestic relations matters to do
what is equitable given the facts and circumstances of each case." [CITATION] This is why "[a]n abuse of discretion constitutes more than an error of law or
judgment; it requires a finding that the [domestic relations] court acted unreasonably,
arbitrarily or unconscionably." [CITATION]
{¶ 13} "The vast majority of cases in which an abuse of discretion is asserted
involve claims that the decision is unreasonable." [CITATION] "A decision is unreasonable where it is not
[SEGMENT 13]
supported by a sound reasoning process." [CITATION] "An arbitrary decision is one that lacks adequate
determining principle and is not governed by any fixed rules or standard." [CITATION] "[A]n
unconscionable decision is one that affronts the sense of justice, decency, or
reasonableness." [CITATION]
{¶ 14} As noted above, Husband argues the domestic relations court erred by
using the date of the final divorce hearing, December 12, 2022, as the de facto termination
date of his and Wife's marriage for property division purposes. This is because, according
to Husband, he and Wife "began living separate and apart" over two years earlier, in
February of 2019, when he moved from Virginia to California and began working for
American Airlines, and "[t]here is no evidence that the parties ever lived together again
Butler CA2023-07-086
or reconciled in any way," either "financially" or "physically."5 However, as a simple review
of the record reveals, Husband never argued or moved the domestic relations court to
use a date other than the date on which the final divorce hearing took place as the de
facto termination date of his and Wife's marriage.
{¶ 15} The record also indicates that Husband's move from Virginia to California
was never intended to be permanent. The record instead indicates that Husband's move
to California was supposed to be temporary relocation for work that was to last only a few
months before both he and Wife moved to Ohio so that Wife could be closer to her ailing
father. Under these circumstances, particularly when considering Husband never offered
the domestic relations court any other alternative date, we find no error in the domestic
relations court using the date of the final divorce hearing, December 12, 2022, as the de
facto termination date of the marriage for property division purposes. Accordingly, finding
no error in the domestic relations court's decision, Husband's first assignment of error
lacks merit and is overruled.
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
SPOUSAL SUPPORT.
{¶ 18} In his second assignment of error, Husband argues the domestic relations
court erred by ordering him to pay Wife monthly spousal support in the amount of $900
for a period of five years. We disagree.
{¶ 19} In divorce proceedings, after the domestic relations court determines the
division or disbursement of property, the domestic relations court "may award 'reasonable
spousal support' to either party." [CITATION]
5. We note that, in his answer to Wife's complaint for divorce, Husband claimed that he moved to California
in 2016, rather than in 2019, as he alleges in his appellate brief.
Butler CA2023-07-086
107, 2023-Ohio-2015, ¶ 36, quoting R.C. 3105.18(B). "In determining whether spousal
support is appropriate and reasonable, the [domestic relations] court has a statutory duty
to base its spousal support order on a careful and full balancing of the factors in R.C.
3105.18(C)(1)." [CITATION] 2018-Ohio-2144, ¶ 40. "R.C. 3105.18(C)(1) contains 14 factors that the
[domestic relations] court must consider in determining if spousal support is appropriate."
[CITATION] 2013-Ohio-4329, ¶ 40.
{¶ 20} These 14 factors include, but are not limited to, the income of the parties,
the relative earning abilities of the parties, the retirement benefits of the parties, the ages
and physical, mental, and emotional conditions of the parties, the duration of marriage,
the standard of living of the parties established during the marriage, the relative extent of
education of parties, and the relative assets and liabilities of the parties. R.C.
3105.18(C)(1)(a), (b), (c), (d), (e), (g), (h), and (i). "A reviewing court will presume each
factor was considered, absent evidence to the contrary." [CITATION] This court "will not disturb a spousal support
award on appeal absent an abuse of discretion." [CITATION] 2017-Ohio-7463, ¶ 24. As noted above, an abuse of discretion "requires
a finding that the [domestic relations] court acted unreasonably, arbitrarily or
unconscionably." [CITATION] 2011-Ohio-6345 at ¶ 15, citing [CITATION] 5 Ohio St.3d at 219.
{¶ 21} Rather than challenging the amount or duration of the spousal support
award the domestic relations court afforded to Wife, Husband argues it was error for the
domestic relations court to order him to pay any spousal support to Wife at all. To support
this claim, Husband argues that ordering him to pay Wife spousal support is not
appropriate in this case when considering the cost of living for a single person in the San
Butler CA2023-07-086
Francisco area where he lives is much greater than the cost of living for a single person
in Middletown where Wife lives. Therefore, according to Husband, ordering him to pay
Wife spousal support under these circumstances "provides ample funds for wife to work
and live and strips husband of that ability" and is akin to stealing away his "livelihood"
while at the same time creating "a bonus for wife based on income created by husband
after the parties stopped living together or sharing financial obligations," and is
tantamount to a "taking" of his hard-earned money and leaving him "in poverty while
enhancing Wife's lifestyle resulting in an unjust and inequitable outcome."
{¶ 22} However, while the cost of living between the San Francisco area and
Middletown may very well be different, maybe even drastically so, given the record in this
case, the domestic relations court found Wife's anticipated monthly expenses in Ohio
were $2,600, whereas Husband's anticipated living expenses in California were just $400
more at $3,000. The domestic relations court made this finding based upon Husband's
and Wife's own affidavits wherein they each set forth the monthly expenses they expected
to pay once their divorce was finalized. Under these circumstances, and when
considering Husband's and Wife's ages, the duration of Husband and Wife's marriage,
and the disparity in Husband's and Wife's respective incomes, the domestic relations
court did not err by ordering Husband to pay Wife monthly spousal support in the amount
of $900 for a period of five years.[CITATION] Accordingly, Husband's second assignment of error
also lacks merit and is overruled.
Conclusion
{¶ 23} For the reasons outlined above, and finding no merit to either of Husband's
[CITATION]
Butler CA2023-07-086
two assignments of error raised herein, Husband's appeal from the domestic relations
court's final divorce decree is denied.
{¶ 24} Judgment affirmed.
PIPER and BYRNE, JJ., concur.
[CITATION]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BRIAN EHRMANTROUT JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Andrew J. King, J.
-vs-
Case No. 2023 AP 03 0021
KATE EHRMANTROUT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court
of Common Pleas, Domestic Relations
Division, Case No. 2021 TC 09 0295
JUDGMENT: Affirmed in part; Reversed in part; and
Remanded
DATE OF JUDGMENT ENTRY: April 5, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID C. HIPP DAN GUINN
P.O. Box 90
W. Third Street
New Philadelphia, Ohio 44663 Dover, Ohio 44622 Tuscarawas County, Case No. 2023 AP 03 0021
Hoffman, P.J.
{¶1} Defendant-appellant Kate E. Ehrmantrout (“Wife”) appeals the March 3,
2023 Judgment Entry entered by the Tuscarawas County Court of Common Pleas,
Domestic Relations Division, which granted Wife and plaintiff-appellee Brian V.
Ehrmantrout (“Husband”) a divorce, divided the parties’ marital debts and assets, and
allocated their parental rights and responsibilities.
STATEMENT OF THE FACTS AND CASE
{¶2} Husband and Wife were married on August 29, 2009, in Wooster, Ohio.
The parties have three (3) minor children, one of whom was born prior to the marriage.
Paternity was established by birth certificate. The other two (2) children were born during
the marriage. The parties separated in September, 2018.
{¶3} On September 17, 2021, Husband filed a Complaint for Divorce. Wife filed
a pro se Answer on October 21, 2021.[CITATION] Via Magistrate’s Order filed October 25, 2021,
[SEGMENT 14]
the magistrate named Wife the temporary residential parent and legal custodian of the
children, granted Husband standard parenting time, ordered the parties to file proposed
child support calculations, and, in lieu of temporary spousal support, ordered Husband to
pay all outstanding medical bills of the parties and make the monthly payments on the
Bank of America credit card. After the child support computation worksheet was filed, the
magistrate ordered Husband to pay child support in accordance with the worksheet.
{¶4} The parties engaged in mediation, but were unable to reach an agreement.
On July 13, 2022, after learning about an incident of domestic violence between Wife and
her paramour, Husband filed a motion requesting the appointment of a guardian ad litem
[CITATION] Tuscarawas County, Case No. 2023 AP 03 0021
(“GAL”) for the children on July 13, 2022. The trial court appointed Attorney Monica
DeRamus as GAL for the children. Husband was ordered to pay the initial deposit of
$1,500.00, to the GAL.
{¶5} The trial court conducted a final hearing on October 13, 2022.
{¶6} Husband began his case-in-chief by calling Wife on cross-examination.
Wife testified she is employed with Farmers National Bank as a bank teller and earns
$13.95/hour. Wife resides with the children in a home owned by her parents. With
respect to the Bank of America credit card, Wife indicated the account was in her name
only and the account was currently over the credit limit of $16,000. Wife stated the Bank
of America credit card was opened around 2013, when the parties resided in Florida.
Wife acknowledged she continued to use the Bank of America credit card after the parties
separated, but could not provide an estimate of how much of the $16,000 debt was
incurred after the separation. Wife explained she used the Bank of America credit card
for daily living expenses for herself and the children, including using it to pay bills and to
purchase clothing.
{¶7} With respect to the parties’ other credit cards, Wife testified the balance on
the Capital One Walmart credit card was approximately $4200.00, the balance on the Bell
credit card was $45.00, and the balance on the Discover Card was approximately
$9,730.00. Wife continued to use the Capital One Walmart credit card, the Bell credit
card, and the Discover Card after the parties’ separation. Other than a Kohl’s credit card,
which was opened in 2011, Wife indicated all of the credit cards were opened when the
parties lived in Florida and were in her name only.
---------------------------------------------------------------------- Tuscarawas County, Case No. 2023 AP 03 0021
{¶8} Wife testified she had been dating an individual by the name of Christopher
Durachinski, but stopped seeing him after he was arrested in February, 2022, “[b]ecause
he was violent towards me.” [CITATION] at p. 10. Wife
obtained a civil protection order (“CPO”) after the incident. Wife was subpoenaed to
appear at Durachinski’s trial on the charges, but refused to appear to testify against him,
explaining, “I did not appear, but I got a CPO and after I got the CPO I told victim
assistance that I couldn’t handle it anymore, it was emotionally draining. So, I got what I
needed to get, and I left it at that.” [CITATION] at p. 11. When asked if her children were present
during the incident, Wife stated they were upstairs. Wife initially could not recall if there
were other instances of physical confrontations with Durachinski, but then replied,
“Physically no, maybe words.” [CITATION] Wife stated she and Durachinski were in a relationship
less than a year.
{¶9} Wife was asked about the parties’ joint bank account with Bank of America.
Counsel for Husband introduced Plaintiff’s Exhibit A, which was a Bank of America bank
statement. The statement showed the following transfers from the account to
Durachinski: August 31, 2021, for $999.98; August 31, 2021, for $1,300.00; September
1, 2021, for $700.00; and September 2, 2021, for $1,500.00. Wife stated she did not owe
any money to Durachinski. Wife could not recall if the money was from the parties’ joint
tax refund. Wife stated she “[m]ost definitely” made the transfers to Durachinski. [CITATION] at p.
14. Wife explained she transferred the money to Durachinski so she could open her own
separate account. Wife added Husband also was taking money out of the Bank of
America account, and, as a result, the account fell below the required minimum and was
assessed monthly maintenance fees, which she paid. Wife could not recall if Husband Tuscarawas County, Case No. 2023 AP 03 0021
had his paychecks deposited into the Bank of America account after the parties’
separation. Wife indicated she deposited the Federal stimulus checks issued to herself,
Husband, and the children into the joint bank account, but did not know if Husband
withdrew any of those funds.
{¶10} Husband testified he was employed full-time as a line operator for ProVia,
and earns $17.50/hour. Husband maintains health insurance for himself and the children
through his employer. With respect to the children, Husband stated he sees the two older
children on a regular schedule. However, Husband noted his parenting time with the
parties’ youngest child, who has cerebral palsy and is also epileptic, was irregular.
Husband indicated the youngest child has significant needs, but he was able to meet all
of her needs and provide appropriate care. Husband detailed his parenting time with the
children and discussed the activities in which the older two children are involved.
Husband testified the older two children told him about the domestic violence between
Wife and Durachinski and Durachinski’s arrest. The two older children were present
during the altercation. Husband contacted Wayne County Sheriff’s Office, which
conducted a welfare check. Husband recalled, when he spoke to Wife that evening, her
speech was slurred and she was under the influence of alcohol. Husband stated Wife
had an on-going problem with alcohol.
{¶11} With respect to the Bank of America bank account, Husband testified while
the parties were still together his paycheck, Wife’s paycheck, and the youngest child’s
social security disability check were deposited into the account. Husband noted his
paycheck continued to be deposited into the Bank of America bank account for a period
of time after the parties separated. Husband stated the last time he used the bank Tuscarawas County, Case No. 2023 AP 03 0021
account on a regular basis was in 2019. When Husband asked Wife about the multiple
transfers to Durachinski, Wife told him she was afraid he (Husband) would take the
money. Husband withdrew $200.00, at some point, which drained the account. Husband
indicated Wife wrote him a check for the federal stimulus checks issued to him. With
respect to the credit cards, Husband indicated he did not use any of the credit cards after
the parties’ separation in 2018.
{¶12} On cross-examination, Husband stated he worked at Pepsi Beverage
Company until October, 2021, and was earning approximately $19.75/hour. Husband
acknowledged although he was ordered to pay the Bank of America credit card, he only
made two payments on the account. Husband testified he has been consistent in paying
with his child support obligation.
{¶13} On direct, Wife indicated she would like to be restored to her former name
of “Jones.” Wife explained she and Husband do not own any real property and they had
previously divided their personal property. Wife wished to keep the Bank of America bank
account and a Farmers National Bank account, both of which were in her name only. The
parties have joint checking and joint savings accounts with Bank of America. The joint
savings account was charged a monthly maintenance fee which, according to Wife,
began after Husband withdrew $200.00, and brought the account below the required
balance. Wife did not have a retirement account. Husband had a retirement account
through his former employer, Pepsi Beverage Company. Wife believed she was entitled
to a portion of any current 401(k) Husband might have. Wife wanted Husband to pay the
balances on the Bank of America credit card and the Discover Card, as well as the
outstanding medical bills. Tuscarawas County, Case No. 2023 AP 03 0021
{¶14} Wife was unable to work full-time due to the needs of the parties’ youngest
child. Wife expressed her desire to be named the legal custodian and residential parent
of the parties’ children. Wife did not feel comfortable with the youngest child being at
Husband’s residence multiple nights in a row, adding “[e]very time [the child] is over there
something happens.” [CITATION] at p. 58. Wife discussed the older two children, their extra-
curricular activities, and their individual educational needs. Wife made clear she paid for
all of the children’s extra-curricular activities. Wife detailed the daily care she provides to
the youngest child, which includes tube feeding the child five times per day and giving her
numerous prescription medications each day. Wife asserted Husband did not attend
medical or school appointments even though she advised him of the same.
[SEGMENT 15]
{¶15} With respect to the money transferred to Durachinski, Wife explained she
transferred the money to him in order to open a bank account in her name only. Wife
also claimed Husband was attempting to blackmail her into signing a dissolution, which
she did not believe was equitable, and she believed he would withdraw the money from
the joint account. Wife indicated Durachinski transferred the money back to her and she
used it to pay bills. Wife adamantly denied the money went to Durachinski.
{¶16} On cross-examination, Wife admitted she was charged with DUI in January,
2020. Wife also admitted she filed a tax return, claiming all three children, despite a court
order prohibiting her from doing so. Wife received a tax refund of $15,000.00, which she
used for rent, gas, car repairs, extra-curricular activities, and the revolving balances on
the credit cards.
{¶17} At the close of evidence, the trial court advised the parties they could submit
Proposed Findings of Fact and Conclusions of Law, if desired. The parties requested the Tuscarawas County, Case No. 2023 AP 03 0021
trial court conduct an in-camera interview with the two older children in the presence of
the GAL. The interview was scheduled for November 15, 2022.
{¶18} Wife filed Proposed Findings of Fact, Conclusions of Law on November 7,
2022. Husband filed his Final Argument as well as his Proposed Judgment Entry on
November 14, 2022. Wife filed a response to Husband’s Final Argument on December
30, 2022. On January 12, 2023, the GAL filed a Guardian ad Litem’s Notice of Filing Final
Bill, showing an outstanding balance of $352.50, and noting each party was responsible
for $176.25. Via Judgment/Entry filed the same day, the parties were ordered to pay the
GAL fees as follows: Husband - $176.25; and Wife - $176.25.
{¶19} Via Judgment Entry filed March 3, 2023, the trial court granted the parties
a divorce on the grounds of incompatibility and living separate and apart for more than
one (1) year. The trial court ordered Husband to make all monthly payments on the Bank
of America credit card he had been previously ordered to make, and Wife be responsible
for the remaining balance. With respect to the parties’ additional revolving credit
cards/accounts, the trial court held the parties responsible for their respective debt. The
trial court found an award of spousal support was not appropriate as Wife engaged in
“secretive and prejudicial financial misconduct.” [CITATION]
The trial court ordered the parties to pay the GAL expenses 65% Husband/35% Wife.
The trial court ordered Husband’s pension benefits from ProVia be divided by QDRO, and
ordered Wife to pay for an evaluation and preparation of the QDRO. The trial court named
Mother the legal custodian and residential parent of the parties’ youngest child, and
Husband the legal custodian and residential parent of the two older children. The trial
court did not award child support, but ordered the parties’ split the cost of the children’s Tuscarawas County, Case No. 2023 AP 03 0021
activities 65% Husband/35% Wife. The trial court divided court costs equally between
Husband and Wife.
{¶20} It is from this judgment entry Wife appeals, raising the following
assignments of error:
I. THE COURT ERRED WITH REGARDS TO THE ALLOCATION
OF THE BANK OF AMERICA CREDIT CARD DEBT.
II. THE COURT ERRED WITH REGARDS [TO] THE ALLOCATION
OF DEBTS OTHER THAN THE BANK OF AMERICA CREDIT CARD.
III. THE COURT ERRED IN DETERMINING THAT THE
APPELLANT COMMITTED FINANCIAL MISCONDUCT.
IV. THE COURT ERRED IN NOT RESTORING THE APPELLANT
TO HER FORMER NAME.
V. THE COURT ERRED IN DETERMINING THAT THE PARTIES
SHOULD SPLIT THE GUARDIAN AD LITEM FEES.
VI. THE COURT ERRED IN ORDERING THE APPELLANT TO PAY
THE ENTIRE COST ASSOCIATED WITH THE PREPARATION OF THE
QDRO TO DIVIDE THE MARITAL PORTION OF THE APPELLEE’S
PENSION
VII. THE COURT ERRED IN ORDERING BOTH PARTIES TO PAY
THE COURT COSTS EQUALLY. Tuscarawas County, Case No. 2023 AP 03 0021
I
{¶21} In her first assignment of error, Wife submits the trial court erred and abused
its discretion in allocating the entire Bank of America credit card to her.
{¶22} R.C. 3105.171 (B) provides:
In divorce proceedings, the court shall * * * determine what
constitutes marital property and what constitutes separate property. In
either case, upon making such a determination, the court shall divide the
marital and separate property equitably between the spouses, in
accordance with this section. For purposes of this section, the court has
jurisdiction over all property, excluding the social security benefits of a
spouse other than as set forth in division (F)(9) of this section, in which one
or both spouses have an interest. R.C. 3105.171(B).
{¶23} “Although the allocation of debt is not specifically addressed by the statute,
the division of property also includes marital debt.” [CITATION], ¶ 6. (Citations omitted); See, also, [CITATION], ¶ 24 (Debts, like assets,
are considered property.). Consequently, orders assigning debt to one party or another
are part of the property division. [CITATION], ¶ 41 (“Since the court, pursuant to R.C.
3105.171(F)(2), must consider both the parties’ assets and liabilities, ‘an equitable
division of marital property necessarily implicates an equitable division of marital debt.’ ”). Tuscarawas County, Case No. 2023 AP 03 0021
{¶24} “A trial court's allocation of marital debt will not be reversed absent an abuse
of discretion.” [CITATION], ¶ 41. “We may modify or reverse the court's decision only for abuse of discretion.”
[CITATION], ¶ 13, citing [CITATION].
An abuse of discretion “implies that the court's attitude is unreasonable, arbitrary or unconscionable.” [CITATION],
{¶25} Specifically, Wife contends the trial court’s finding “most of the $16,000.00
balance for [the Bank of America credit card] this was incurred by the Wife after the
separation” was erroneous. Brief of Appellant at p. 20. Wife continues:
The problem is that the evidence did not show that. No evidence or
testimony was shown which proved what the balance for this was prior to
the parties' separation. Moreover, no evidence was shown with regards to
what balance the Wife charged on the credit card. Thus, there was no way
for the Court to determine this and it abused its discretion in making that
finding in Paragraph 14.2
Id.
2 Paragraph 14 provides: "The parties also have a Bank of America credit card in both their names when
they lived together in Florida which has a balance of over $16,000 at the time of trial. Mother acknowledges
that this sum arose mostly from charges she made for the home and the children's needs after the parties
separated." March 3, 2023 Judgment Entry. Tuscarawas County, Case No. 2023 AP 03 0021
{¶26} Wife further argues the trial court abused its discretion in failing to allocate
all of the Bank of America credit card debt to Husband or, alternatively, divide the debt
proportionately to what each party earns, i.e., 65% to Husband, 35% to Wife.
{¶27} The record before this Court reveals the balance on the Bank of America
credit card was over $16,000.00, on October 25, 2021, when part of its temporary orders,
the magistrate ordered Husband to make monthly payments on the credit card. Neither
Husband nor Wife presented any testimony or evidence establishing the balance of the
credit card at the time the parties separated in September, 2018. At the time of the final
hearing, the balance remained over $16,000.00. Wife testified she used the credit card
for daily living expenses. Wife did not provide any documentation to establish the amount
she charged during the period between the magistrate’s October 25, 2021 order and the
final hearing. Husband admitted he only made two monthly payments, and, the trial court,
in its March 3, 2023 Judgment Entry, ordered Husband to pay all of the monthly payments
he failed to make.
{¶28} Because Wife had exclusive use of the Bank of America credit card
following the parties’ separation in 2018, and in the absence of any testimony or evidence
establishing the balance of the credit card at the time the parties separated in September,
2018, we find the trial court did not abuse its discretion in allocating the remainder of the
Bank of America credit card debt after Husband pays the amounts he was order to pay
under the magistrate’s temporary orders.
{¶29} Wife’s first assignment of error is overruled. Tuscarawas County, Case No. 2023 AP 03 0021
[SEGMENT 16]
II
{¶30} In her second assignment of error, Wife argues the trial court erred in its
allocation of the other credit card debt.
{¶31} In its March 3, 2023 Judgment Entry, the trial court made the following
findings:
Findings of Fact 10-"These parties have incurred substantial marital
debt from the beginning to this day including since the parties' separation.”
Findings of Fact 16-"The parties have other credit cards and
consumer debt including Capital One, Walmart, Bell's, and a Discover
Card."
Findings of Fact 17-"Both parties have played a role in creating their
oppressive debt."
{¶32} Based upon these findings, the trial court ordered:
Decision and Orders Paragraph 4-"Each Party shall pay and hold the
other Party harmless on any other revolving credit cards/accounts including
Capital One, Walmart, Bell's and a Discover Card."
{¶33} Wife points out two problems with the trial court’s order. First, Wife submits,
because the balances on the credit cards are marital debt, such debt “should, at the very
least, be divided equally between the parties.” Brief of Appellant at p. 21. Wife explains, Tuscarawas County, Case No. 2023 AP 03 0021
although the trial court ordered each party pay and hold the other party harmless, the
order is unclear as to “who is to pay what debt.” [CITATION] We agree with Wife as to the ambiguity
of the trial court’s order. We find the trial court erred in failing to specify which party was
responsible for which credit card debt and in what amount.
{¶34} Next, Wife states the trial court’s order is not supported by the evidence. As
stated, supra, the trial court found the parties’ “credit cards and consumer debt [included]
Capital One, Walmart, Bell's, and a Discover Card.” March 3, 2023 Judgment Entry,
Finding of Fact 16. Wife explains, and the evidence presented at the final hearing
established, the parties had a Capital One Walmart credit card, not separate Capital One
and Walmart credit cards.
{¶35} Based upon the foregoing, we reverse the trial court’s allocation of the
remaining credit card debt and remand the matter to the trial court to clarify the order.
{¶36} Wife’s second assignment of error is sustained.
III
{¶37} In her third assignment of error, Wife submits the trial court erred in finding
she had engaged in financial misconduct.
{¶38} “An appellate court employs the manifest-weight-of-the-evidence standard
when reviewing a trial court's determination that a party engaged in financial misconduct.”
[CITATION], ¶ 78, citing [CITATION], ¶ 14.
The reviewing court weighs the evidence and all reasonable inferences, considers the
credibility of witnesses, and determines whether in resolving conflicts in the evidence, the
finder of fact “clearly lost its way and created such a manifest miscarriage of justice that Tuscarawas County, Case No. 2023 AP 03 0021
the [judgment] must be reversed and a new trial ordered.” [CITATION].
{¶39} R.C. 3105.171(E)(4) provides:
If a spouse has engaged in financial misconduct, including, but not
limited to, the dissipation, destruction, concealment, nondisclosure, or
fraudulent disposition of assets, the court may compensate the offended
spouse with a distributive award or with a greater award of marital property.
R.C. 3105.171(E)(4).
{¶40} “The financial misconduct statute should apply only if the spouse engaged
in some type of wrongdoing (i.e., wrongful scienter).” [CITATION] (Citation and internal quotations omitted).
“Typically, the offending spouse will either profit from the misconduct or intentionally
defeat the other spouse's distribution of marital assets. * * * Financial misconduct involves
some element of profit or interference with another's property rights.” [CITATION] (Citations and
internal quotations omitted.) “The court does not have to find malicious intent; it need
only find that a spouse has engaged in knowing wrongdoing.” [CITATION] (Citation and internal
quotations omitted).
{¶41} The testimony at the final hearing established, and the trial court found, Wife
kept the entire amount of the parties’ joint 2020 tax return.3 In addition, Wife admitted
3 In her Brief to this Court, Wife states “the tax refund was not $11,000.00 as the Court found but much less
based upon the Husband's testimony” Brief of Appellant at p. 25. Husband testified the 2020 tax refund
was approximately $5,600.00. Tr. at p. 34. We find the trial court incorrectly noted the amount of the tax
refund, but such does not change the fact Wife kept the entire refund. Tuscarawas County, Case No. 2023 AP 03 0021
she transferred $4,499.99, from the parties’ joint checking account to Durachinski. The
transfers to Durachinski occurred a few months after the 2020 tax refund was directly
deposited into the parties’ Bank of America account.
{¶42} The testimony also established Wife filed a separate tax return in 2022,
claiming all three children as dependents, despite a court order prohibiting her from doing
so. Wife received a tax refund of $15,000.00, which she testified she used for rent, gas,
car repairs, fees for the children’s extra-curricular activities, and payments on the credit
card balances.
{¶43} The trial court’s determination Wife engaged in financial misconduct was
based, in part, on the fact Wife “kept 100% of both Federal Stimulus checks without
sharing with [Husband] or paying on some of her credit card debt.” March 3, 2023
Judgment Entry, Finding of Fact #20. We find this finding is not supported by the
testimony presented at the final hearing. Husband testified Wife wrote him a check for his
share of each of the federal stimulus checks. Nonetheless, even without this erroneous
finding, we find the trial court’s finding Wife engaged in financial misconduct was not
against the manifest weight of the evidence.
{¶44} As the result of Wife’s financial misconduct, the trial court chose not to make
an award of spousal support.
{¶45} A trial court has broad discretion in determining whether an award of
spousal support is proper based on the facts and circumstances of each case.
[CITATION], ¶ 43, citing [CITATION]. As stated, supra, an abuse Tuscarawas County, Case No. 2023 AP 03 0021
of discretion connotes more than an error of law or judgment; it implies the court's attitude
is unreasonable, arbitrary, or unconscionable. [CITATION], supra.
{¶46} Upon review of the entire record in this matter, we find the trial court did not
abuse its discretion in failing to award spousal support.
IV
{¶47} In her fourth assignment of error, Wife contends the trial court erred in failing
to restore her to her former name.
{¶48} Pursuant to R.C. 3105.16, “[w]hen a divorce is granted the court of common
pleas shall, if the person so desires, restore any name that the person had before the
marriage.” Use of the word “shall” demonstrates that this duty is mandatory. [CITATION].
{¶49} At the final hearing in this matter, Wife testified she wished to be restored
to her former name. Tr. at P. 45. The judgment entry is silent on this issue. In light of
Wife's request and pursuant to R.C. 3105.16, we find the trial was required to restore Wife
to her former name and the trial court erred in failing to do so. See, [CITATION].
{¶50} Wife’s fourth assignment of error is well-taken and sustained.
V
{¶51} In her fifth assignment of error, Wife asserts the trial court erred in ordering
the parties split the GAL expenses.
{¶52} Civil Rule 75(B)(2) provides, “* * * the court may * * * appoint a guardian ad
litem and legal counsel, if necessary, for the child and tax the costs.” The trial court has
discretion over the amount of GAL fees, as well as the allocation to either or both of the Tuscarawas County, Case No. 2023 AP 03 0021
parties. [CITATION]. We review a trial court's ruling relative to an award of GAL fees under an abuse
of discretion standard. [CITATION]. An abuse of discretion connotes more than
an error of law or judgment; it implies that the trial court's attitude was unreasonable,
arbitrary or unconscionable. [CITATION].
{¶53} Fees may be allocated based on the parties' litigation success and
economic status. [CITATION]
(Citations omitted). Moreover, it is proper to allocate GAL fees based on which party
caused the work of the GAL. [CITATION].
{¶54} Wife maintains Husband should be responsible for all of the GAL fees as
he requested the appointment of the GAL. Wife adds Husband “could have, and should
have, made this request [sooner] since this case had been pending nearly a year when
[SEGMENT 17]
he decided to file this motion,” but “for some unknown reason the Husband decided to
wait until the eve of the final hearing to make this request.” Brief of Appellant at p. 27.
We find Husband’s decision to wait “until the eve of the final hearing” to request a GAL
was not a delay tactic, but the result of newly obtained information.
{¶55} Husband filed a Motion for Court Interview of Minor Children and
Appointment of Guardian ad Litem on July 13, 2022, after he learned about an incident
of domestic violence involving Wife and Durachinski. In his affidavit in support of his Tuscarawas County, Case No. 2023 AP 03 0021
motion, Father averred, inter alia, there had been instances of violence in Wife’s home,
which occurred while the children were present, and, as a result of an incident which
occurred in February, 2022, [CITATION] was charged with domestic violence. Father
further averred the two older children reported these occurrences to him and also
disclosed being subject to physical abuse themselves.
{¶56} As the need for a GAL arose due to instances of violence in Wife’s home,
about which Husband had only recently learned when he requested the appointment of
the GAL, we find the trial court did not abuse its discretion in ordering Wife to pay a
percentage of the GAL fees.
{¶57} Mother’s fifth assignment of error is overruled.
VI
{¶58} In her sixth assignment of error, Wife maintains the trial court erred in
ordering her to pay the entire cost of the preparation of the QDRO.
{¶59} The trial court ordered Husband’s pension benefits through ProVia be
divided by QDRO with the marital portion, defined as his date of employment to the date
of this Judgment Entry, awarded to Wife. The trial court ordered Wife pay for an evaluation
and preparation of the QDRO, as needed.
{¶60} Wife submits, and we agree, Husband's pension is marital property and
should be divided equally. Wife argues the trial court “had no valid justification for making
this order [she pay for all of the costs associated with the preparation of the QDRO] nor
did it state its rational in doing so.” Brief of Appellant at p. 28. In his Brief, Husband states,
“there was no evidence presented that the Husband had any pension benefit plan at
ProVia based upon his barely one year’s employment,” noting, “[i]f there were any such Tuscarawas County, Case No. 2023 AP 03 0021
pension benefits they would certainly be less than the cost of the evaluation and
preparation of a QDRO.” Brief of Appellee at p. 12. Husband concludes the trial court’s
order “seems to be meaningless.” Id.
{¶61} Upon review of the transcript of the final hearing, we find no evidence to
establish Husband has pension benefits with ProVia. Although Wife testified she was
entitled to the marital portion of Husband’s retirement, whatever it may be, she had no
knowledge of whether such benefit existed. While we do not find the trial court’s order
“meaningless,” as Husband suggests, we, nonetheless, find the trial court did not abuse
its discretion in ordering Wife to pay for an evaluation and preparation of the QDRO,
should Wife determine her marital portion of Husband’s pension, if it exists, exceeds the
cost of the preparation of the QDRO.4
{¶62} Wife’s sixth assignment of error is overruled.
VII
{¶63} In her final assignment of error, Wife argues the trial court erred in ordering
court costs be assessed equally.
{¶64} Absent an abuse of discretion, a trial court's decision regarding costs will
not be reversed. [CITATION] As noted above, “[a]n abuse of discretion implies that the trial court's attitude was
unreasonable, arbitrary, or unconscionable.” [CITATION]
4 We further note the trial court did not order Wife to reimburse Husband any portion of the original deposit
of $1,500.00 for the GAL, which Husband paid. Such might well account for allocation of the cost for the
evaluation and preparation of the QDRO to Wife. Tuscarawas County, Case No. 2023 AP 03 0021
{¶65} Wife explains the trial court ordered the parties to pay “various expenses in
proportion to their incomes.” Brief of Appellant at p. 30. Wife continues, although she
requested Husband pay all of the court costs, the trial court ordered the parties to pay the
court costs in equal shares. Wife suggests “at the very least these should be split in
proportion to their incomes” and “[t]here is no reason why there should be a difference
when it comes to these costs and other expenses listed.” Id.
{¶66} Wife does not cite any caselaw to support this assertion. Further, Wife has
failed to show how the trial court ordering the parties to pay court costs in equal shares
was unreasonable, arbitrary, or unconscionable. Accordingly, we find no abuse of
discretion.
{¶67} Wife’s seventh assignment of error is overruled.
{¶68} The judgment of the Tuscarawas County Court of Common Pleas, Domestic
Relations Division, is affirmed, in part, and reversed, in part, and remanded to the trial
court to clarify its order relative to the parties’ credit card debt, except for the Bank of
America credit card, and we remand this matter to the trial court to modify the judgment
to restore Wife to her former name of Kate Elizabeth Jones.
By: Hoffman, P.J.
Baldwin, J. and
King, J. concur -----[CITATION]-----
------
[Cite as [CITATION].]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
DANIEL JOWISKI C.A. No. 23CA011939
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LESLIE GUSTAFSON-JOWISKI COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 97DU052353
DECISION AND JOURNAL ENTRY
Dated: January 22, 2024
STEVENSON, Judge.
{¶1} Leslie Gustafson-Jowiski appeals from the judgment of the Lorain County Court of
Common Pleas, Domestic Relations Division, which upheld a magistrate’s decision amending an
original stipulated qualified domestic relations order (“QDRO”). This Court reverses and remands
for further proceedings consistent with this opinion.
I.
{¶2} This is not the first appeal filed by Ms. Gustafson-Jowiski (“Wife”). Wife first
appealed the trial court’s judgment in [CITATION] (“Jowiski I”). This Court summarized the pertinent facts as:
Ms. Gustafson-Jowiski (‘Wife’) and Daniel Jowiski (‘Husband’) married in
, legally separated in 1996, and divorced in 1997. As part of the divorce, the
trial court issued a stipulated qualified domestic relations order (‘QDRO’). In it,
the trial court determined that Wife was entitled to one-half of Husband’s
retirement benefits from the Ford Motor Company for years the parties were
married. Specifically, it stated that: 2
[T]he amount payable to [Wife] shall be the amount otherwise
payable to [Husband] as follows: one-half (1/2) of the fraction the
numerator of which is the number of years [Husband] participated
in said plan while married to [Wife], the denominator of which is
the total number of years [Husband] participates in said plan, times
the benefits to be received.
The QDRO provided that the trial court retained jurisdiction to amend the order to
carry out its terms and intent, and that the trial court ‘specifically reserve[d] the
right to make such Orders as it deems necessary to provide [Wife] with all benefits
to which she is entitled or that are necessary to effectuate the terms of the Plan[.]’
In 2020, Husband filed a ‘Motion to Modify and Clarify Judgment Entry
Regarding [Husband’s] Retirement and Pension’ (‘Motion to Modify’). In it, he
asserted that he worked for Ford for 12 years while the parties were married,
continued to work there after the divorce, and was set to retire after working there
for over 35 years. He asserted that, while he was married to Wife, he did not
actively contribute to his retirement. According to Husband, had he continued to
not actively contribute to his retirement, he would have been entitled to receive
approximately $1,700 per month in retirement benefits from Ford. Husband
asserted that, after the divorce, he began actively contributing to his retirement,
which significantly increased the benefits he was entitled to receive upon his
retirement. According to Husband, as a result of his active contributions, he was
now set to receive approximately $6,400 per month in retirement benefits.
Husband asserted that Ford interpreted the calculation set forth in the
QDRO to mean that Wife was entitled to receive the benefit of Husband’s post-
divorce active contributions to his retirement. He asserted that Wife should instead
receive the amount she would have been entitled to had he not started actively
contributing to his retirement after their divorce. He asserted that Ford’s
interpretation of the QDRO was not consistent with the parties’ intent and requested
that the trial court issue an order modifying and clarifying the language of the
QDRO to effectuate its intent.
[SEGMENT 18]
Wife then moved the trial court for an order allowing QDRO Group, LLC,
a company based in Medina, to evaluate the QDRO to determine the amount of
Husband’s Ford retirement benefits she was entitled to receive. The magistrate
granted Wife’s motion.
The magistrate set the matter for a hearing. On August 19, 2021, Husband,
Husband’s counsel, and Wife’s counsel appeared in person. At Wife’s counsel’s
request, the magistrate called Wife, who lives in Texas. Wife indicated that she
just received documents from Ford, so her counsel requested a continuance to allow
her to review the documents. The magistrate indicated he would grant the
continuance and advised Wife to ensure that she was prepared for trial. * * * That
decision was journalized on the docket on August 23, 2021. * * * 3
On September 7, 2021, the magistrate held a hearing on Husband’s Motion
to Modify. Husband, Husband’s counsel, and Wife’s counsel appeared for the
hearing. Wife did not appear. Despite the fact that Wife had moved for an order
allowing QDRO Group, LLC to evaluate the QDRO, Wife did not procure an expert
report. Instead, Husband retained QDRO Group, LLC to evaluate the QDRO and
prepare a report.
James Myers, Jr., the managing principal of QDRO Group, LLC, testified
as an expert on behalf of Husband. He opined that Wife was entitled to the non-
contributory portion of Husband’s retirement benefits (i.e., the benefit he would
have been entitled to receive had he not started actively contributing to his
retirement), and that the contributory portion (i.e., the benefit he was entitled to
receive as a result of his post-divorce active contributions to his retirement) was
Husband’s separate property. He then testified that, calculating the amount Wife
was entitled to receive based upon the non-contributory portion of Husband’s
retirement benefits, Wife was entitled to receive $287.08 per month.
On cross-examination, Mr. Myers acknowledged that Ford’s interpretation
of the QDRO was technically correct because the QDRO did not distinguish
between contributory and non-contributory portions of Husband’s retirement
benefits. He then testified that the QDRO would need to be amended to account
for the fact that, after the parties divorced, Husband began actively contributing to
his retirement.
One week after the hearing, the magistrate granted Husband’s Motion to
Modify. Consistent with Mr. Myer’s expert opinion, the magistrate found that Wife
was entitled to receive $287.08 per month from Husband’s Ford retirement benefits.
The magistrate indicated that Husband may submit an amended QDRO to
effectuate the intent of his decision.
***
* * * The trial court adopted the magistrate’s decision the same day.
[CITATION] at ¶¶ 1-12. Because Wife failed to pay a contempt of court fine, the trial court did not
consider her objections to the magistrate’s decision. Id. at ¶ 12.
{¶3} Wife maintained in [CITATION], in her second assignment of error, that the trial court
erred by dismissing her objections to the magistrate’s decision. Id. at ¶ 13. This Court agreed and
“remand[ed] the matter for the trial court to consider Wife’s objections to the magistrate’s decision
in the first instance.” Id. at ¶ 17. 4
{¶4} Wife asserted in her first assignment of error that the trial court lacked jurisdiction
to modify the final divorce decree because she did not consent to the modification. In light of this
Court’s ruling on the second assignment of error, it concluded in [CITATION] that Wife’s first
assignment of error was premature. Id. at ¶ 19.
{¶5} On remand, after Wife purged her contempt and after an oral hearing was held on
her objection to the magistrate’s decision, the trial court issued a written decision overruling Wife’s
objection. The trial court found that “that there is no ambiguity as to the provisions of the division
of [Husband’s] retirement benefits pursuant to the parties’ divorce decree dated April 16, 1997.”
The trial court also found that “[t]he parties clearly intended that [Wife] was to receive one-half of
[Husband’s] pension accumulated during the marriage” and that “awarding one-half of
[Husband’s] entire pension past the date of the parties’ legal separation could not be foreseen at
the time of [Husband’s] actual retirement.” (Emphasis sic.)
{¶6} According to the trial court, it was “not modifying the parties’ original divorce
decree[,]” rather, it was “merely facilitating and/or effectuating the parties’ intention at the time of
their divorce.” The trial court “determine[d] that [Wife’s] interest in [Husband’s] pension is one-
half of the amount of [Husband’s] pension that was accumulated during the marriage from January
22, 1982 to July 10, 1996[]” and that “[a]ny subsequent QDRO shall effectuate the parties’ (sic)
to divide [Husband’s] pension pursuant to the parties’ divorce decree in April of 1997.” The trial
court adopted the magistrate’s decision amending the original stipulated QDRO.
{¶7} Wife appeals the trial court’s order, asserting one assignment of error for our
review. 5
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT LACKED [JURISDICTION] TO MODIFY A FINAL
DECREE OF DIVORCE BECAUSE BOTH PARTIES DID NOT CONSENT
TO SAID MODIFICATION.
{¶8} Wife argues that the trial court modified the terms of the final decree of divorce and
that, because she did not consent to the modification, the modification was improper. We agree.
{¶9} The divorce decree states that Wife “shall be entitled to and shall receive an interest
in the pension and retirement benefits of [Husband] with the Ford Motor Company[]” and that
Wife’s interest is:
one-half (1/2) of the fraction the numerator of which is the number of years that the
[Husband] participated in said plan while married to [Wife], the denominator of
which is the total number of years [Husband] participates in said plan, times the
total benefits to be received.
The decree provided for the issuance of a QDRO “to insure that [Wife] receives her share of said
[pension and retirement] benefits.” The domestic relations court “reserve[d] and retain[ed] the
right to make any orders at any time in the future necessary to carry out the terms and intention
and purpose of [the divorce decree] and [QDRO][.]”
{¶10} Like the divorce decree, the stipulated QDRO states that Wife’s interest in
Husband’s retirement plan is “one-half (½) of the fraction the numerator of which is the number
of years that [Husband] participated in said plan while married to [Wife] (1/22/82 to 7/10/96), the
denominator of which is the total number of years [Husband] participates in said plan, times the
benefits to be received.” It is undisputed that neither the decree nor the stipulated QDRO
distinguished between contributory and non-contributory portions of Husband’s retirement
benefits. 6
{¶11} It is well-settled that “[p]ension or retirement benefits earned during the course of
a marriage are marital assets and a factor to be considered in the division of property.” [CITATION], ¶ 5, citing [CITATION]. Accord R.C. 3105.171(A)(3)(a)(i) (“‘Marital property’ means * * * [a]ll real and
personal property that is currently owned by either or both of the spouses, including * * * the
retirement benefits of the spouses * * *.”). A QDRO “implements a trial court’s decision of how
[retirement benefits are] to be divided incident to divorce or dissolution.” [CITATION] at ¶ 7.
{¶12} “While a [domestic relations] court has the power to enforce a property division
incorporated into a divorce decree, * * * [it] may not modify that property division.” [CITATION], ¶ 4, citing R.C. 3105.171(I); [CITATION]. R.C. 3105.17(I), titled “Division of marital
property; separate property” states:
***
(I) A division or disbursement of property or a distributive award made under this
section is not subject to future modification by the court except upon the express
written consent or agreement to the modification by both spouses.
***
“A property division made in accordance with R.C. 3105.171, including any distributive awards,
is not subject to future modification by the court.” [CITATION], ¶
72 (“once the trial court divides the marital property and enters the final decree of divorce, the
judgment is final and the court no longer possesses jurisdiction over the division of marital assets.”)
[SEGMENT 19]
“The trial court cannot overcome this rule by an explicit reservation of continuing jurisdiction.”
[CITATION].
====== End of Part of a Court Ruling ====== 7
{¶13} While a trial court maintains authority to clarify an ambiguity in a divorce decree,
its jurisdiction is limited to clarifying those terms that are “‘capable of being understood in two or
more possible senses or ways[.]’” [CITATION], ¶ 7-8, quoting Merriam-Webster’s Collegiate Dictionary 39 (11th Ed.2005). Absent the
parties’ express written consent or agreement, R.C. 3105.171(I) prohibits the trial court from
modifying the parties’ agreement as contained in a divorce decree. See [CITATION], ¶ 1, citing R.C. 3105.171(I) (recognizing that property division may
be modified only upon the express written consent or agreement by both spouses); [CITATION],
*2 (Dec. 5, 2001) (recognizing that, absent the
express written consent or agreement of both spouses, the domestic relations court’s authority is
limited to “clarify[ing] and constru[ing] its original property division so as to effectuate its
judgment.”)
{¶14} In this case, the trial court adopted a magistrate’s decision. “Generally, the decision
to adopt, reject, or modify a magistrate’s decision lies within the discretion of the trial court and
should not be reversed on appeal absent an abuse of discretion.” [CITATION], ¶ 5. However, “[i]n so doing, we consider the trial
court’s action with reference to the nature of the underlying matter.” [CITATION], ¶ 18. An abuse of discretion means more than an
error of law or judgment; it implies that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. [CITATION], 219 (1983). When applying the
abuse of discretion standard, a reviewing court is precluded from simply substituting its own
judgment for that of the trial court. [CITATION], 621 (1993). 8
{¶15} The divorce decree and stipulated QDRO unambiguously awarded Wife retirement
benefits in the amount of “one-half (1/2) of the fraction the numerator of which is the number of
years that [Husband] participated in said plan while married to [Wife] (1/22/82 to 7/10/96), the
denominator of which is the total number of years [Husband] participates in said plan, times the
benefits to be received.” It is undisputed that neither the divorce decree nor the stipulated QDRO
distinguished contributory and non-contributory portions of Husband’s retirement benefits and
that, as such, Ford’s interpretation was consistent with the decree and QDRO. Husband now wants
to modify the terms of the decree so that it distinguishes contributory and non-contributory
portions of his retirement benefits.
{¶16} If the amount Wife receives from Husband’s retirement benefits with Ford is
limited to a non-contributory calculation, as Husband claims, Husband’s expert acknowledged that
the stipulated QDRO would need to be amended. The QDRO in this case is the exact same
language as the parties’ divorce decree; modifying the QDRO is an amendment of the parties’
agreement reflected in the divorce decree. We conclude that such an amendment would constitute
a modification of the parties’ divorce decree and stipulated QDRO without “the express written
consent or agreement to the modification by both spouses.” R.C. 3105.171(I).
{¶17} Husband acknowledged the need for a QDRO modification in his motion to modify
and clarify judgment entry. In his motion, Husband specifically asked the trial court to “modify
the language regarding [his] retirement and pension to effectuate the intent of the Judgment Entry.”
While Husband testified as to his intent, Husband’s intent is irrelevant. Husband is seeking a
modification of pension or retirement benefits, which constitute “marital assets and a factor to be
considered in the division of property.” [CITATION], 2007-Ohio-6056 at ¶ 5. A property
division is not subject to future modification by a trial court absent “the express written 9
agreement to the modification by both spouses.” R.C. 3105.171(I); [CITATION].
{¶18} While the trial court maintains that it did not modify the parties’ original divorce
decree, we disagree with this conclusion. Husband’s motion specifically requested a modification
of the decree language regarding the division of his pension in the QDRO. It is undisputed that
neither the divorce decree nor the original stipulated QDRO distinguished between non-
contributory and contributory portions of Husband’s retirement benefits. We conclude that
changing the original stipulated QDRO to reflect such a distinguishment constitutes a modification
to the parties’ divorce decree. Absent “the express written consent or agreement to the
modification by both spouses[,]” the trial court did not have jurisdiction to modify the divorce
decree and QDRO. R.C. 3105.171(I). Wife’s assignment of error is sustained.
III.
{¶19} Because the trial court improperly modified the parties’ divorce decree, we reverse
the judgment of the Lorain County Common Pleas Court, Domestic Relations Division. This
matter is remanded for the court to correct its judgment entry in accordance with this decision.
Judgment reversed,
cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27. 10
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
SCOT STEVENSON
FOR THE COURT
FLAGG LANZINGER, J.
CONCURS.
HENSAL, P.J.
CONCURRING IN JUDGMENT ONLY.
{¶20} The plain language of Revised Code Section 3105.171(I) compels me to concur in
the disposition reached by the majority opinion. Section 3105.171(I) provides that a property
division “is not subject to future modification * * * except upon the express written consent or
agreement to the modification by both spouses.” This language unambiguously requires three
things: (1) “written consent or agreement[,]” (2) by both parties, (3) “to the modification.” Id.
{¶21} Before 2010, however, Section 3105.171(I) did not permit modification by any
means. Interpreting the previous version of the statute, this Court recognized on several occasions
that a trial court could not reserve the ability to modify a property division. See [CITATION]. 11
2000 WL 327227, *4 (Mar. 29, 2000); [CITATION]. The language of the current version of Section 3105.171(I) provides a specific means
of modification. See generally [CITATION].
{¶22} In this case, the divorce decree incorporated the terms of the parties’ separation
agreement, which provided, in part, that that the trial court “specifically reserves and retains the
right to make any orders at any time in the future necessary to carry out the terms and intention
and purpose of this Judgment Entry and Qualified Domestic Relations Order.” One court has
concluded that when a divorce decree incorporates the parties’ agreed property division, Section
3105.171(I) permits modification when the parties have agreed “to the fact of modification itself.”
[CITATION]. Most courts,
however, have concluded that the phrase “to the modification” means that “the express written
consent or agreement” to the modification at issue is required. Consequently, as under the previous
version of the statute, those courts conclude that a trial court cannot reserve jurisdiction to modify
a property division under any circumstances. See, e.g., [CITATION]. Given
the plain language of the statute, I agree that this view is correct.
{¶23} The language in the divorce decree, therefore, did not permit modification apart
from compliance with the terms of Section 3105.171(I). I agree with the majority’s disposition
because the trial court’s action modified the property division and because the current version of
Section 3105.171(I) does not contemplate that a trial court can do so apart from “the express
written consent or agreement to the modification by both spouses.” 12
APPEARANCES:
DAVID J. BERTA, Attorney at Law, for Appellant.
GIOVANNA V. BREMKE, Attorney at Law, for Appellee.
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
J.F. : CASE NO. CA2023-06-065
: OPINION
[SEGMENT 20]
/27/2023
:
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2020-0186
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee.
Garrett Law Offices, and Dawn S. Garrett, for appellant.
Father, pro se.
Tracy A. Jackson, guardian ad litem.
BYRNE, J.
{¶ 1} Appellant ("Mother"), the mother of J.F. ("James"), appeals the decision of the Butler CA2023-06-065
Butler County Court of Common Pleas, Juvenile Division, granting permanent custody of
the child to Butler County Department of Job and Family Services ("the Agency"). 1 For the
reasons outlined below, we affirm the juvenile court's decision.
I. Factual and Procedural Background
{¶ 2} James was born to Mother on July 15, 2020. Just two days later, on July 17,
2020, the Agency filed a complaint alleging that James was a dependent child. The juvenile
court granted the agency emergency temporary custody the same day. The complaint
stated that Mother was severely mentally ill and unable to care for her son; Mother had
been diagnosed with schizoaffective disorder bipolar type but had stopped taking her
prescribed medications and had ceased utilizing mental health services. The complaint
further alleged that Mother has had documented mental health issues for at least ten years
and had been probated into mental health facilities in 2015 and 2018. On April 5, 2020,
Mother was probated to the Beckett Springs behavioral health hospital where she remained
until May 22, 2020. Otherwise, Mother resided with her parents, but the Agency expressed
concern that her parents did not understand the gravity of Mother's mental health issues.
On July 20, 2020, following a hearing, the juvenile court ordered James be placed in shelter
care with the agency. On August 19, 2020, James was adjudicated to be a dependent child
based upon stipulations to portions of the complaint.
{¶ 3} On September 11, 2020, the juvenile court held a dispositional hearing and
adopted a case plan with reunification as the goal. The case plan required Mother to be
engaged in mental health services, to take all prescription medications as recommended,
to become stabilized, and to acknowledge her mental health diagnoses. The case plan also
referred Mother for a full psychological assessment to determine the services in which she
1. "James" is a pseudonym adopted in this opinion for purposes of privacy and readability. [CITATION], ¶ 1, fn. 1.
Butler CA2023-06-065
should be engaged. Finally, the case plan required Mother to participate in a
Developmental Living Skills (DLS) program in order to improve her parenting skills, and at
a time closer to reunification, the plan required Mother to engage in a more intense program
such as the Family Preservation Program, which would take place in Mother's home.
{¶ 4} At the same time, the juvenile court ordered genetic paternity testing, which
successfully determined the identity of James' father ("Father"). Father did not seek
custody of James, but stated that he loved his son, and wanted him to be adopted by the
assigned foster family.
{¶ 5} On August 16, 2020 and September 15, 2020, Mother underwent
psychological evaluation, with both of her parents present, at CDC Behavioral Health
Services in Hamilton, Ohio. Mother presented as highly delusional and psychotic at both
of her appointments, and the assessor observed that Mother appeared to have difficulty
differentiating reality from fantasy or delusion. Mother claimed to possess psychic abilities
and claimed that she knew several years ago she would be meeting with the assessor.
Despite these concerning behaviors, Mother's parents claimed she was not currently
delusional, minimized her symptom presentation, and stated that they did not understand
why the healthcare providers were concerned about Mother's ability to function
independently.
{¶ 6} Mother began the DLS program on September 1, 2020. However, Mother
missed multiple appointments and terminated the DLS program on October 7, 2020
because she felt she did not need the service. Mother eventually reengaged with DLS in
March 2021 and completed the program on August 18, 2021. The DLS Exit Report noted
that Mother showed little interest in gaining independence from her parents, permitting them
to manage her funds and stating on many occasions that when they die, her brother would
be responsible for taking care of her in the same way.
[CITATION]
{¶ 7} Mother regularly attended supervised visits with James until January 10,
2023, when she ceased entirely. Up until that point, Mother appeared to generally have a
loving bond with James, but certain interactions and incidents drew serious concern from
the care providers. Mother was resistant to James transitioning to solid foods and
expressed some apprehension over James being potty trained. She even opined that
James being potty trained may lead to his death. On another occasion, Mother tried to
prevent James from participating in outdoor celebrations on the Fourth of July—opining that
the noises would cause him to become dehydrated. Mother continually refused to follow
the advice of the visitation center's supervising staff and would not discipline James. Mother
would not be firm with James and would not use "cool-downs" or "time-outs." Mother also
tried to prevent James from traveling outside the foster home and expressed that she did
not want James riding in cars unless absolutely necessary. On another occasion, Mother
advised that she does not leave home at all and would not do so with James. Mother
discussed with a visitation supervisor that she had lived past lives going back thousands of
years, was psychic, and could predict certain future events. Overall, Mother had a tenuous
grip on the purpose and importance of these supervised visits and therefore made limited
progress developing her parenting skills.
{¶ 8} The Agency made numerous attempts to conduct a home study of Mother's
parents' residence to determine if it was safe and appropriate for James to live there, but
each time Mother's parents refused to set an appointment, or if an appointment was made,
they would cancel it, often citing concerns over COVID. During the entire pendency of this
case, only one professional—mother's therapist—was ever permitted access into the home.
Although the therapist's report was favorable, she was only present in and only observed
in one room of the house. Father later vigorously testified against placement of James in
Mother's care, her parents' care, or any combination thereof. Father testified that he had
[CITATION]
been in Mother's parents' house approximately five times in 2019, and described it as
cluttered, dirty, and smelling of animal feces. Father expressed fear that if James was
placed there, Mother's family would cut him off from the outside world. This testimony was
reinforced by Mother's previous comments that she did not want James to ever leave the
house.
{¶ 9} For the first 14 months after James was removed from Mother's care, Mother
made little progress in terms of mental health treatment. Then in September 2021, Mother
sought out and began treatment at Ray of Hope counseling services in Mason, Ohio.
Mother's therapist, Maury McCoy, testified that Mother appeared at that time to have
schizoaffective disorder, having a flat, catatonic, affectation, and making random
movements of her hands, head, and arms. Nevertheless, therapist McCoy and Mother's
psychiatrist, Dr. Gilmore-Gordon, concluded that Mother did not suffer from schizoaffective
disorder, but rather suffered from depression and post-traumatic stress disorder. However,
Mother never provided her mental health history to therapist McCoy, who instead relied
entirely on what Mother self-reported during therapy sessions, many of which occurred over
the telephone. Dr. Gilmore-Gordon did not review Mother's mental health history until
sometime after she had begun treating Mother.
{¶ 10} Review hearings were held on January 7, 2021; April 2, 2021; October 5,
2021; December 28, 2021; March 22, 2022; and May 26, 2022. On March 16, 2022, the
Agency filed a motion for permanent custody of James, and on November 15, 2022, the
Guardian ad Litem for James filed a report recommending permanent custody be granted
to the agency.
{¶ 11} The Agency's motion for permanent custody was heard on November 15,
2022; January 31, 2023; February 8, 2023; February 23, 2023; and concluded on March 2,
2023. At the hearings it was apparent that Mother still suffered from disorganized thinking
Butler CA2023-06-065
and panic attacks, and harbored several delusions. Mother continued to insist that she is
psychic and that she has lived past lives and reincarnated. Mother admitted that during a
visit with James, she provided a handwritten note to a care provider that stated "Gretchen,
I remember being terrified of [Father], hailstorm, Lizzy Hail, Oxford Ridge, White dress and
knife." In her testimony, Mother suggested that in a previous life she was a cancer patient
or possibly even lived as musician Lizzy Hale, and these experiences were mirrored in lyrics
[SEGMENT 21]
from the rock band Hailstorm. Mother further claimed that she had been in a relationship
with Father in a previous life where he had severely beaten her and was sent to prison for
eight years. Later, Mother failed to appear at the February 8, 2023 hearing, with her counsel
asserting that she was absent due to stress induced illness. She again failed to appear at
the proceedings on March 2, 2023, without any explanation.
{¶ 12} Dr. Gilmore-Gordon and therapist McCoy testified on Mother's behalf,
reiterating that she did not suffer from schizoaffective disorder, and concluding that she
should be able to function as a caregiver to James. However, in light of Mother's lack of
transparency with these care providers, Mother's previous delusional testimony, and the
overwhelming reports of Mother's ongoing mental health problems, the juvenile court did
not find the testimony of Dr. Gilmore-Gordon and therapist McCoy persuasive.
{¶ 13} On April 3, 2023, the magistrate issued a decision granting permanent
custody of James to the Agency. In the decision, the magistrate applied the R.C.
[CITATION] two-part permanent custody test. As for the first part of the two-part test,
the magistrate found that a grant of permanent custody to the Agency was in James' best
interest. As for the second part of the two-part test, the juvenile court found that James had
been in the temporary custody of the Agency for 12 or more months of a consecutive 22-
month period. On the same day, the juvenile court judge approved and adopted the
magistrate's decision as the decision and final judgment of the court.
Butler CA2023-06-065
{¶ 14} Mother objected to the magistrate's decision on April 13, 2023, and a hearing
was held on June 13, 2023. Mother was again absent without any explanation. The juvenile
court overruled Mother's objections on June 14, 2023, and Mother filed a notice of appeal
on June 16, 2023.
II. Legal Analysis
{¶ 15} Mother now appeals the juvenile court's decision granting permanent custody
of James to the Agency, raising the following assignment of error for our review:
{¶ 16} THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY TO
WARREN COUNTY CHILDREN SERVICES.
{¶ 17} On appeal, Mother argues the juvenile court's decision granting permanent
custody of James to the Agency was against the manifest weight of the evidence and is
supported by insufficient evidence. Within her sole assignment of error, Mother raises two
arguments. First, Mother claims that granting permanent custody to the Agency is not
necessary and therefore not in the best interest of James because she has addressed the
conditions that led to James' removal. Specifically, Mother claims she has addressed her
mental health issues, she has a safe and appropriate home for James to live in, she and
James are bonded, and she has demonstrated an ability to nurture and parent James
appropriately. Second, Mother argues that the agency failed to provide testimony
demonstrating reasonable efforts to locate relatives for placement, and therefore the
juvenile court could not award permanent custody to the Agency. However, Mother does
not elaborate on this claim or cite to any law whatsoever.
A. Applicable Law and Standards of Review
{¶ 18} "Before a natural parent's constitutionally protected liberty interest in the care
and custody of [her] child may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met."
Butler CA2023-06-065
In re M.G., [CITATION]; R.C. 2151.414(E).
Under R.C. 2151.414(B)(1), the juvenile court may terminate parental rights and award
permanent custody of a child to a children services agency if the court makes findings
pursuant to a two-part test. In re K.P., [CITATION]. First, R.C. 2151.414(B)(1) provides that the juvenile court must find that the
grant of permanent custody to the agency is in the "best interest" of the child. In re M.H.,
[CITATION]. Second, the juvenile court must find that one of the circumstances set forth in R.C.
2151.414(B)(1)(a) to (e) apply. In re R.B., [CITATION]. Those circumstances include, but are not limited
to: (1) the child is abandoned, R.C. 2151.414(B)(1)(b); (2) the child is orphaned, R.C.
2151.414(B)(1)(c); (3) the child has been in the temporary custody of one or more public
children services agencies for 12 or more months of a consecutive 22-month period, R.C.
2151.414(B)(1)(d); and (4) none of the previous three circumstances applies, and the child
cannot be placed with either of the child's parents within a reasonable time or should not be
placed with the parents, R.C. 2151.414(B)(1)(a). Only one of these circumstances need
apply to satisfy the second prong of the two-part permanent custody test. In re C.S., [CITATION].
{¶ 19} "An appellate court's review of a juvenile court's decision granting permanent
custody is generally limited to considering whether sufficient credible evidence exists to
support the juvenile court's determination." In re A.S., [CITATION]. However, "[e]ven if there is sufficient
evidence to support the juvenile court's decision, an appellate court may nevertheless
reverse a permanent custody judgment if it finds the judgment to be against the manifest
weight of the evidence." In re G.A., [CITATION].
Butler CA2023-06-065
643, ¶ 18, citing [CITATION], ¶ 61. In determining whether a juvenile court's judgment is against the
manifest weight of the evidence, an appellate court "'weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a
manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.'"
[CITATION], quoting [CITATION]. The presumption in weighing the evidence favors the finder of
fact, which we are especially mindful of in custody cases. [CITATION]. Therefore, if the evidence is
susceptible to more than one construction, the reviewing court is bound to give it the
interpretation that is consistent with the verdict and judgment. [CITATION].
B. First Part of the Permanent Custody Test: Best Interest Analysis
{¶ 20} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in
a permanent custody hearing, a juvenile court must consider all relevant factors, including,
but not limited to, the following:
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child's guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the child
has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month
Butler CA2023-06-065
period * * *;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 21} A juvenile court may also consider any other factors it deems relevant to the
child's best interest. [CITATION], ¶ 24.
{¶ 22} Mother essentially argues that the juvenile court should have given greater
weight to her testimony, as well as to the testimony of Dr. Gilmore-Gordon and therapist
McCoy, that she had remediated her mental health issues, had a good relationship with
James, and had a safe home for him to live in. However, the juvenile court simply did not
find these claims to be credible.
{¶ 23} Based upon its consideration of the R.C. 2151.414 factors, the magistrate
found by clear and convincing evidence—and the juvenile court affirmed—that it was in
James' best interest to grant permanent custody to the Agency. Regarding the first and
second best interest factors, the juvenile court recognized that James has been in foster
care virtually his entire life and therefore is not bonded to Mother. In fact, Mother stopped
visiting with James in January 2023. James' Guardian ad Litem supported the Agency's
motion for permanent custody and all reports indicated that James was loved and well cared
for by his foster family, which is interested in adopting him if that becomes a possibility.
Father has been supportive of the motion for permanent custody by the Agency and has
been adamantly opposed to placement of James with Mother or Mother's parents.
{¶ 24} Regarding James' need for a legally secure permanent placement, the court
[SEGMENT 22]
recognized that Mother had an extensive history of mental health problems and had been
- 10 - Butler CA2023-06-065
probated into mental health facilities several times. Although Mother may have made some
progress under the care of Dr. Gilmore-Gordon and therapist McCoy, this progress was too
little, too late. Whatever progress Mother made was diminished by Mother's obfuscation of
her mental health history, and was outweighed by Mother's own testimony at trial that
evidenced her ongoing delusions. Throughout the pendency of this case, Mother failed to
coordinate a single home study with the Agency to assess living conditions, and only had
one positive visit from her therapist, who had a limited view of the home from a single room.
{¶ 25} The credibility of witnesses and the weight given to their testimony are
primarily matters for the finder of fact. [CITATION] Where evidence is susceptible to more than one construction, we
are required to give it the interpretation most favorable and consistent with the verdict and
judgment. Id. Although Mother presented some favorable testimony at trial, we find that
the juvenile court did not err in concluding that it was outweighed by other evidence of
Mother's severe and ongoing mental health problems and her inability to provide
appropriate care to James. Accordingly, the juvenile court did not err in finding the best
interest factors weighed in favor of awarding permanent custody to the agency.
C. Second Part of the Permanent Custody Test
{¶ 26} Mother on appeal does not challenge the juvenile court's finding under R.C.
2151.414(B)(1)(d) that James had been in the temporary custody of CCDJFS for at least
12 months of a consecutive 22-month period. Because Mother does not challenge this "12
of 22" finding, we need not review the issue further. [CITATION] However, we note that the record unquestionably
establishes that the "12 of 22" finding was met in this case because James was adjudicated
dependent in August 2020, and James remained in the Agency's custody through the date
the agency filed for permanent custody, in March 2022.
- 11 - Butler CA2023-06-065
D. Efforts to Locate Relatives
{¶ 27} Within her sole assignment of error, Mother raises a cursory argument that
the Agency failed to present testimony that demonstrated its reasonable efforts to locate
relatives with whom James could be placed. However, Mother fails to make any argument
in support of this claim, citing no law and making no reference to the record. App.R.16(A)(7)
provides that an appellant's brief must include "[a]n argument containing the contentions of
the appellant with respect to each assignment of error presented for review and the reasons
in support of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies." This court may disregard an assignment of error if a party
fails to identify in the record the error on which the assignment of error is based or fails to
argue the assignment separately in the brief. [CITATION] Therefore, we decline to consider Mother's argument.2
III. Conclusion
{¶ 28} In light of the foregoing, we conclude the juvenile court did not err by
determining that it was in James's best interest to grant permanent custody to the Agency.
As such, we find the juvenile court's decision to grant permanent custody of James to the
Agency was supported by clear and convincing evidence and was not against the manifest
weight of the evidence. Mother's sole assignment of error is overruled.
{¶ 29} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
2. We note that the permanent custody statute does not require a juvenile court to consider relative placement
before granting a motion for permanent custody. See [CITATION] Even so, at the October 5, 2021 review hearing, an agency caseworker indicated that the Agency
had sent out letters and conducted multiple relative searches using Accurint, a locate-and-research tool used
in investigations. Further, no relatives or non-relatives, including Mother's parents, came forward seeking
placement of James.
- 12 - =
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[Cite as [CITATION].]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JOHN M. JACKSON : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Andrew J. King, J.
:
-vs- :
: Case No. 23 CAF 10 0095
TRACEY T. JACKSON :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 21 DR A 08
JUDGMENT: Affirmed in part, Reversed in part and
Remanded
DATE OF JUDGMENT ENTRY: August 16, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN M. JACKSON PRO SE JACQUELINE KEMP
263 McCraney Lane
Metro Place North, Ste 300
Columbus, OH 43213 Dublin, OH 43017 Delaware County, Case No. 23 CAF 10 0095
Gwin, P.J.
{¶1} Appellant appeals the September 29, 2023 judgment entry of the Delaware
County Court of Common Pleas, Domestic Relations Division.
Facts & Procedural History
{¶2} Appellant John M. Jackson and appellee Tracey T. Jackson were married
on October 5, 1996. The parties have three children. Two of their children were
emancipated at the time of trial. Appellant filed a complaint for divorce against appellee
on August 26, 2021. The trial court issued a “mutual restraining order” on August 31,
2021. Appellant filed a motion to determine a de facto termination date of marriage and
requested the trial court set a de facto marriage termination date of May 1, 2021.
However, appellant later withdrew his motion.
{¶3} The trial in this case was originally scheduled for July 18, 2022. On July 12,
2022, appellant filed a motion to continue the trial. Appellee did not object to the
continuance. Accordingly, the trial court granted appellant’s motion and continued the
trial until February of 2023.
{¶4} The magistrate conducted the trial in this case on the following dates:
February 13, 15, 16, 17, 21, 22, and 23 of 2023. Prior to the start of the trial, the parties
engaged in discussions about stipulations, but were unable to reach an agreement.
However, on the second day of the trial, the parties agreed and stipulated on how to
distribute the personal property and how to sell the marital home.
{¶5} At the beginning of their marriage, both appellant and appellee worked.
When the parties had children and moved to Ohio, appellee no longer worked. Appellant
testified he wanted appellee to go back to work, but she refused. Appellee testified Delaware County, Case No. 23 CAF 10 0095
appellant never asked her to go back to work; rather, the parties agreed that with the
amount needed for child care, it was cheaper for her to stay home. Despite any potential
disagreement on how the situation occurred, the result was that, until 2017, appellant
worked full-time and appellee was not employed outside the home. Each week, appellant
would provide appellee with a weekly allowance. Appellant described a situation in which
he provided appellee with a yearly budget that she was expected to maintain so she could
continue to be a stay-at-home parent. Appellee described a situation in which appellant
provided her with multiple spreadsheets each year, and had unrealistic expectations as
to how much it cost to raise a family with three children. Thus, she obtained credit cards
to provide food and what she thought was necessary to raise her children. At several
points throughout the marriage, appellant would stop appellee’s allowance if she
overspent. Appellant believes appellee should have relied on the money she was
supposed to be saving to continue any discretionary spending.
{¶6} In 2015 or 2016, appellee stated she grew tired of appellant’s strict budgeting
and what she believed was a constant focus on money that consumed their lives. Thus,
she left the home. Appellant offered what he felt was a fair compromise for her to return
to the home, i.e., appellee would be responsible for all “discretionary” spending. Both
parties agreed they did not discuss any financial information between themselves from
2017 through 2021. The parties continued to have disagreements, and appellee moved
out of the marital home in May of 2021. Appellee testified she informed appellant in 2016
that if he ever cut her off again, she would move out, and, when appellant “cut her off” in
May of 2021, she moved out. Delaware County, Case No. 23 CAF 10 0095
{¶7} In August of 2022, appellant purchased a lot of land in Pickerington to enable
him to build a house. The cost of the lot was $159,000. Appellant testified he liquidated
a checking account of $33,000 to purchase the lot. He also utilized $68,000 from a JP
Morgan Chase investment account to purchase the lot. The JP Morgan Chase account
has $1,000 left in it. Finally, he took out a $50,000 loan from his Nationwide 401(K) to
purchase the lot. Appellant stated he was aware of the restraining order, but felt this was
not a violation of the restraining order because he did not dissipate assets. Appellee did
not know about the lot or the 401(K) loan until the beginning of the trial when appellant
provided her counsel with his proposed balance sheet.
{¶8} The parties stipulated to the amounts contained in appellant’s retirement
accounts: $790,630 for his 401(K), $325,000 for his pension, $56,180 for his deferred
compensation, $12,260 in his supplemental defined benefit plan, and $145,230 in a Merrill
Lynch plan. Appellant did not have the current values of appellee’s accounts, but utilized
the figures she provided for her retirement accounts.
{¶9} Appellant testified that in 2016, he split a TD Ameritrade investment account.
He transferred $49,000 to his personal checking account and $44,000 into appellee’s
personal checking account. Appellee stated this was appellant’s gesture of goodwill for
reconciliation. She testified she used the $44,000 for home repairs of the marital home,
a new water heater for the marital home, to pay for a sick dog, pay for vacations, and pay
to purchase items for their children.
{¶10} Appellant testified he established a 529 account for each of his daughters.
Appellant stated appellee went into the accounts and changed the phone number and
contact information on the accounts. Appellant wants the accounts to be marital and be Delaware County, Case No. 23 CAF 10 0095
assigned to appellee because she made withdrawals from the accounts without his
knowledge. Appellant believes appellee had no authorization to take the money out of
the accounts, even if it was for the children’s schooling. Appellant stated he set up the
funds for the benefit of the children. As to funds taken out of Sydney’s account, appellant
and appellee had a conversation about the actual dollar amount that needed to be taken
out of the account to pay for school. He knew for Sydney’s first two years of college the
money had to be coming from the 529 plan. After that, he assumed appellee would pay
the college expenses from her own income, not the 529 fund, because appellant wanted
to save the 529 funds for medical school.
{¶11} Appellant testified the 529 funds were used legitimately since 2018 for
Sydney. However, he still considers this financial misconduct because appellee did not
obtain his permission to expend these funds to pay for Sydney’s school. As for Shelby
and Symone, appellant has no outside evidence to show or suggest they weren’t used
for anything other than school, but he does not know what the funds were used for. He
did not approve any of the transfers from Shelby or Symone’s 529 plans.
{¶12} Appellee testified that Sydney attended Vanderbilt University. Though
Sydney got a full tuition scholarship, appellant and appellee were responsible for paying
room and board, which was $8,900 per semester. Appellee used the 529 plan to pay this
room and board. Appellee testified appellant knew about the transactions for Sydney
because he had to complete the 1099’s to submit for their taxes. Appellee denied that
she and appellant ever discussed saving the 529 for medical school. Shelby went to
Columbus State, and appellee testified she used the money from Shelby’s 529 plan to
pay for Columbus State. Initially, appellant was not aware the funds were being used for Delaware County, Case No. 23 CAF 10 0095
Columbus State. However, he never complained about the use of the funds from the 529
plan for Columbus State. In August of 2021, Shelby started at Kentucky State University,
[SEGMENT 2]
and she is still going there. Appellee would like to use the 529 funds to help pay for the
tuition, which is $18,000 per year. Symone goes to a private high school, and appellee
used funds from the 529 plan to help pay for the tuition. Appellee testified to Exhibit P,
which is documentation of where the funds went from the 529 accounts to pay for each
school expense.
{¶13} Appellee testified she did not know she needed permission from appellant to
spend the 529 funds. Appellee stated appellant never complained about her using the
funds, and the statements came to the home via the mail each month for him to view. He
never told appellee he had any issues with the use of the funds contained in the
statements. Appellee stated it was appellant who told her she could use the 529 funds
to pay for books and other school-related expenses because she thought she could only
use it for tuition. Appellee testified she had always taken care of paying fees and all
school shopping for the children throughout their marriage, so she believed she was
permitted to use the 529 funds for their education expenses. Appellee stated she always
used the 529 funds for the benefit of her daughters, as the accounts were established for
their benefit.
{¶14} Appellee testified that appellant gave her the password for the 529 accounts.
Appellant admitted he gave appellee the password for the 529 accounts in 2008. He
stated she was only supposed to use the passwords in the event of his death, not to
change any of the information associated with the account. Delaware County, Case No. 23 CAF 10 0095
{¶15} Appellant spent a lengthy amount of time detailing what he believes to be
financial misconduct that appellee committed for “excessive spending” from 2016 until the
date of separation. Initially in their marriage, from 1996 to 2015, appellant managed the
finances how he wanted to. The parties separated for a period of time in 2015 or 2016.
In order to provide appellee with some security she said she desired, appellant transferred
$44,000 from the TD Ameritrade account into appellee’s personal checking account.
Also, in 2016, when appellee returned to the home, appellant stated he let her be in
charge of the discretionary household spending; however, he set up a separate account
that appellee did not have access to in order to pay household bills. Appellant let appellee
make payments for items such as food, vacations, phone, internet, cable, eating out,
social events, and “lifestyle items.” Appellant testified he got bonuses of over $100,000
each year. He did not include any of his bonus money in the amount he gave appellee
for discretionary spending; rather, he kept the funds for himself.
{¶16} Appellee disputed appellant’s testimony that she was in charge of all of the
discretionary spending. She agreed that he gave her a certain amount of money and she
had to pay for food, vacations, home repairs, household expenses, and expenses for the
children (cheer squad, gymnastics, Girl Scouts, soccer); however, she stated he kept a
large amount of money for himself to do with what he wanted. She never knew who he
was loaning money to or what he was investing in. If appellee questioned him, appellant
would tell her it was his money and his house. Further, appellee stated appellant would
continually add items to what she needed to pay (i.e., life insurance premiums) and did
not increase the amount he gave her. Appellant agreed he spent his funds on items for
his family, such as paying for his brother to take college classes, purchasing plane tickets Delaware County, Case No. 23 CAF 10 0095
for his family, remodeling his mother’s home for $12,000, paying $5,000 for his aunt’s
home, and purchasing two cars for his mother. In 2017, he paid $25,000 to create an
endowment at Ohio State University. He did not tell appellee about this because they
were not “discussing financial matters during the last five years of [their] marriage.”
{¶17} Appellant presented the court with Exhibit 9, which contained his opinion as
to what amount would be reasonable to spend for each discretionary category. He
testified that from January 1, 2017 to the end of May 2021, he deposited over $494,497.23
into appellee’s “discretionary” account. Appellant went through each charge appellee
made, and detailed how he believed each of these charges was excessive. Appellant
believes $214,035 was a normal and responsible budget for that period of time, so he
believes appellee excessively spent $233,559.19. Appellant also expected that, during
that period, appellee would have been saving and investing at least some money in the
529 plans and the TD Ameritrade account.
{¶18} Appellee testified the charges she made during this time were not excessive,
and the amounts appellant felt were “reasonable” for each discretionary category were
not reasonable. Appellee stated appellant would consider it extravagant if she spent $10
more on something than she should have. Appellee testified everything she was buying
was for the children and the marital home and included items such as: pots, pans,
decorations, furniture, towels, comforters, book fairs, school supplies, lessons, uniforms,
vacations, restaurants, entertainment, and home repairs.
{¶19} Appellee testified she established a “Greenlight Account” with Huntington
Bank. The account has appellee’s name on it, along with her daughters’ Sydney and
Shelby’s names on it. Appellee stated that, during the marriage from 2016 to 2021, she Delaware County, Case No. 23 CAF 10 0095
used the funds in this account to provide funds to the kids for an allowance, concerts,
food, eating out, and activities. Sydney and Shelby each worked during this time at Giant
Eagle and Cane’s, and those funds went into the Huntington account with all three names
on it (“Greenlight Account”). Sydney now has a full-time teaching job. She still puts her
paycheck into the Greenlight Account. Appellee keeps notes of how much each child
deposits into the account each month. On cross-examination, appellant agreed appellee
funded the Greenlight Account for the children. He agrees the money was all sent to the
girls; however, he believes it is financial misconduct because he did not approve the use
of the funds.
{¶20} The magistrate issued a detailed magistrate’s decision on August 29, 2023.
The magistrate found the duration of the marriage to be from October 5, 1996 to February
13, 2023. The magistrate utilized the required factors to determine an appropriate
property division that is fair and equitable. In part, the magistrate found as follows: it is
fair and equitable for the value of the lot appellant purchased in August of 2022 to be
utilized in the property division analysis and for the value of the lot to be retained by
appellant; appellant should be responsible for the loan he took out of his 401(K) to
purchase the lot; it is fair and equitable for the full value of Chase bank accounts to be
utilized, and for the value of the accounts to be retained by appellant and assigned to him
as an asset; the $67,000 withdrawn from the Chase Brokerage account to purchase the
lot is present in the equity value of the lot; and appellant’s retirements plans should be
divided as of February 13, 2023. The magistrate divided all of the accounts and assets,
and completed the Court’s Exhibit 1, which is entitled “Property Division Spreadsheet.”
After going through the factors and detailing each marital and separate asset for each Delaware County, Case No. 23 CAF 10 0095
spouse, the magistrate ordered appellant to pay a one-time property equalization
payment of $29,343.65.
{¶21} The magistrate found appellant committed financial misconduct when he
utilized $50,000 from joint assets to pay for the lot because the 401(K) he borrowed the
money from was clearly intended to be a retirement asset of the parties. Further, that
appellant personally gained and profited from the financial activities utilizing the 401(K)
loan, and appellee’s interest was, in part, defeated as the balance remaining to be divided
was reduced by the loan.
{¶22} The magistrate determined appellant did not include his bonus income in his
budget or identify where the funds were deposited or what remains of them. Further, that
appellant used these funds for his personal discretionary spending as he saw fit, and he
retained $186,662.94 in bonus income during the proceedings. However, the magistrate
found no financial misconduct as to the bonuses.
{¶23} As to the 529 accounts, the magistrate noted appellant testified the 529 for
Sydney was used for legitimate educational expenses. Further, both parties testified the
intent of establishing the 529 accounts was to provide for the children’s educational
expenses. Neither party testified that they ever believed the 529 accounts were
investments for the parties benefit or later withdrawal. The magistrate concluded
appellant failed to establish appellee engaged in financial misconduct as it relates to 529
savings because: neither party believed those assets to be their individual entitlements
[SEGMENT 3]
or investments; the testimony was clear that both parties intended for the 529 plans to be
for the benefit of the children and specifically for the payment of education related
expenses for the children; and there was no profit to appellee or defeat of appellant’s Delaware County, Case No. 23 CAF 10 0095
marital interest because both parties testified the accounts were for the children’s
educations which both parties acknowledge are ongoing. The magistrate designated
appellee as the custodian of the 529 accounts and ordered they be maintained and
utilized only for the benefit of the children. The magistrate concluded it was not fair and
equitable to include the 529 plans as marital assets because the accounts are being held
and maintained for the benefit of the children and their education expenses.
{¶24} With regards to appellant’s request to find appellee committed financial
misconduct for spending $44,000 from a TD Ameritrade account he gave her in 2016, the
magistrate noted appellee’s testimony that she spent the money on a water heater for the
marital home, repairs to the marital home, swimming lessons for appellant’s mother, the
family pet, cabin trips, and expenses for the family. The magistrate found no financial
misconduct because the transfer occurred years before the parties’ separation and
because, by appellant’s own admission, there were “no strings attached” to this money
he gave her. The magistrate stated she “will not second guess joint marital decisions that
occurred 5 years prior to their separation.”
{¶25} The magistrate next addressed appellant’s request for a finding of financial
misconduct against appellee for allegedly excessive spending from 2016 through 2020.
The magistrate made the following findings: appellant was never denied access to the
parties’ accounts; appellant never requested information about the parties’ accounts;
appellant believed when appellee took over the discretionary spending she had an
understanding of his expectations with regard to investing; appellant was uninvolved with
discretionary spending after 2016; appellant made no effort to inform himself of the state
of the parties’ financial affairs; appellee testified appellant kept a tight hold of the finances Delaware County, Case No. 23 CAF 10 0095
of the parties; when appellant’s budgeted amount was not sufficient to meet expenses,
appellee had no choice but to rely on credit cards to pay for things above and beyond the
budgeted amounts; appellee did not believe she was in charge of all of the discretionary
spending after 2016 because appellant gave himself a certain amount each month; while
appellee had a limited amount of income to pay for family expenses, appellant was paying
for other family member’s vehicles; appellee never knew how appellant was spending his
money; appellee testified that with the Greenlight Account she essentially provided the
kids with the ability to purchase food and pay for things they needed that appellee funded
with a Huntington checking account; appellant believes this is misconduct because he
never gave his children an allowance; appellant agreed it appeared the amounts were
largely used for the children; and appellant put appellee in charge of the finances and
chose to be hands-off despite her history of running up credit card balances.
{¶26} The magistrate stated, “hours of testimony were spent pouring over financial
analyses conducted by John detailing what he believed to be the financial misconduct of
[CITATION].” Further, that the parties, throughout their marriage, disagreed on how they
would handle financial affairs. The magistrate concluded that disagreeing on how to
handle financial affairs is insufficient to meet the burden for financial misconduct.
{¶27} Appellant filed objections to the magistrate’s decision on September 13,
2023. He also requested a thirty-day extension to file the transcript and supplement his
objections. Appellee filed cross-objections to the magistrate’s decision, and a motion to
dismiss appellant’s objections as being untimely.
{¶28} The trial court issued a judgment entry on September 29, 2023. The court
found appellant’s objections untimely, and also found appellee’s cross-objections Delaware County, Case No. 23 CAF 10 0095
untimely. Further, the court adopted the magistrate’s order, and incorporated by
reference the findings of fact and conclusions of law contained in the magistrate’s
decision.
{¶29} Appellant appeals the September 29, 2023 judgment entry of the Delaware
County Court of Common Pleas, Domestic Relations Division, and assigns the following
as error:
{¶30} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
FAILING TO CONSIDER APPELLANT’S OBJECTIONS TO THE MAGISTRATE’S
DECISION THAT WERE FILED ONE DAY LATE.
{¶31} “ II. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
ADHERE TO THE PARTIES’ STIPULATIONS REGARDING THE DATE AND VALUE OF
THE MARITAL ASSETS.
{¶32} “III. THE TRIAL COURT COMMITTED PLAIN ERROR BY UTILIZING
MULTIPLE VALUATION DATES WHEN DETERMINING THE DIVISION OF ASSETS
AND THE PROPERTY DIVISION EQUALIZATION PAYMENT
{¶33} “IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOCATING
TO APPELLANT THE VALUE OF ACCOUNTS USED TO PURCHASE A LOT AND
THEN ALSO ALLOCATING THE LOT TO APPELLANT RESULTING IN DOUBLE
COUNTING OF THE SAME ASSETS.
{¶34} “V. THE TRIAL COURT COMMITTED PLAIN ERROR BY (A) FAILING TO
CHARACTERIZE THE 529 COLLEGE SAVINGS ACCOUNTS AS MARITAL ASSETS
AND (B) FAILING TO INCORPORATE THEM INTO THE CALCULATION OF THE
PROPERTY DIVISION EQUALIZATION PAYMENT. Delaware County, Case No. 23 CAF 10 0095
{¶35} “VI. THE TRIAL COURT COMMITTED PLAIN ERROR BY
CHARACTERIZING A 401K LOAN OBTAINED BY APPELLANT AS A “SEPARATE
LIABILITY” BECAUSE (A) SUCH LOAN WAS USED TO FUND THE ACQUISITION OF
THE LOT AND (B) THE LOT HAS BEEN TREATED AS A MARITAL ASSET.
{¶36} “VII. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONCLUDE THAT APPELLEE ENGAGED IN FINANCIAL MISCONDUCT WHEN SHE
UNILATERALLY WITHDREW $113,087.75 FROM THE 529 COLLEGE SAVINGS
ACCOUNTS WITHOUT APPELLANT’S KNOWLEDGE OR CONSENT.
{¶37} “VIII. THE TRIAL COURT COMMITTED PLAIN ERROR BY AWARDING
THE ENTIRE HEALTH SAVINGS ACCOUNT TO APPELLANT AND FAILING TO
RESTRAIN APPELLEE FROM UTILIZING SUCH ACCOUNT TO PAY HEALTH-
RELATED EXPENSES AFTER JULY 18, 2022.
{¶38} “IX. THE TRIAL COURT COMMITTED PLAIN ERROR BY CONCLUDING
THAT APPELLEE DID NOT ENGAGE IN FINANCIAL MISCONDUCT FOR EITHER (A)
FAILURE TO DISCLOSE $44,000 PREVIOUSLY DISTRIBUTED TO APPELLEE FROM
THE PARTIES’ JOINT TD AMERITRADE INVESTMENT ACCOUNT OR (B) SPENDING
THE ENTIRE $44,000 DURING A 60-DAY PERIOD IN 2016 WITHOUT APPELLANT’S
KNOWLEDGE.
{¶39} “X. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONCLUDE THAT APPELLEE’S TRANSFER OF $35,300 FROM RESTRICTED
SAVINGS ACCOUNT TO CHECKING ACCOUNTS (AND ULTIMATELY SPENDING OF
IT) IN VIOLATION OF THE MUTUAL RESTRAINING ORDER CONSTITUTED
FINANCIAL MISCONDUCT. Delaware County, Case No. 23 CAF 10 0095
{¶40} “XI. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONCLUDE THAT APPELLEE’S EXCESSIVE AND SECRETIVE SPENDING OF
$233,559.19 IN 4 ½ YEARS CONSTITUTED FINANCIAL MISCONDUCT.
I.
{¶41} In his first assignment of error, appellant argues the trial court abused its
discretion by failing to consider appellant’s objections to the magistrate’s decision that
were filed one day late. Appellant concedes his objections were filed one day late, but
contends the trial court “could have used its discretion” and considered the objections.
{¶42} Civil Rule 53(D)(3)(b)(i) provides that “a party may file written objections to
a magistrate’s decision within fourteen days of the filing of the decision, whether or not
the court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).”
{¶43} In this case, the magistrate’s decision contains a time-stamp of August 29,
2023. Appellant did not file his objections until September 13, 2023, which is one day
past the fourteen-day deadline contained in Civil Rule 53(D)(3)(b)(i). Appellant did not
file a motion for extension pursuant to Civil Rule 53(D)(3)(b)(5), and made no attempt to
demonstrate “good cause” as to why the objections were filed late. We find no abuse of
[SEGMENT 4]
discretion in the trial court’s failing to consider appellant’s objections as they were not in
compliance with Civil Rule 53(D)(3). [CITATION] (no abuse of discretion for trial court not to consider objections that were filed one
day late); [CITATION] (objections filed one day late
are out of compliance with the rule); [CITATION] (written Delaware County, Case No. 23 CAF 10 0095
objections are necessary to preserve issues for appeal). Appellant’s first assignment of
error is overruled.
Plain Error Review
{¶44} Because we overruled appellant’s first assignment of error, we review the
remainder of his assignments of error pursuant to the plain error doctrine. “Plain error” is
often construed to encompass errors of law or other defects evident on the face of the
magistrate’s decision which prohibit the adoption of a magistrate’s decision even in the
absence of objections. [CITATION]
{¶45} The plain error doctrine is not favored and may be applied only in the
extremely rare case involving exceptional circumstances where the error seriously affects
the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself. [CITATION], citing [CITATION]
(1997). Even if we were to discover plain error, we have “discretion to disregard the error
and should correct it only to prevent a manifest miscarriage of justice.” Id.
II. & III.
{¶46} In his second assignment of error, appellant contends the trial court
committed error in ignoring the stipulations the parties made as to the division of the
retirement accounts. In his third assignment of error, appellant argues the trial court
committed plain error by utilizing multiple valuation dates when determining the division
of assets and the property equalization payment.
{¶47} At issue in these assignments of error are appellant’s retirement accounts
from Nationwide and Merrill Lynch (collectively, “Appellant’s Retirement Accounts”). Delaware County, Case No. 23 CAF 10 0095
Specifically, these accounts are as follows: Nationwide 401(K), Nationwide Pension,
Nationwide Deferred Compensation, Nationwide Supplemental Defined Contribution
Plan, and appellant’s Merrill Lynch IRA. Appellant contends the trial court committed
plain error in (1) failing to recognize stipulations as to these accounts and (2) in utilizing
multiple valuation dates for these accounts and other financial accounts.
{¶48} It is clear from the record that appellee did stipulate to the values of
Appellant’s Retirement Accounts, as follows: $790,630 for the Nationwide 401(K),
$325,000 for the Nationwide Pension, $12,260 for the Nationwide Supplemental Defined
Contribution Plan, $56,180 for the Nationwide Deferred Compensation, and $145,230 for
the Merrill Lynch IRA.
{¶49} The magistrate and trial court utilized the stipulated values in the property
division worksheet (Court’s Exhibit 1), and calculated the property division equalization
payment owed by appellant to appellee based upon the stipulated values. However, in
the magistrate’s decision that was adopted by the trial court, the magistrate incorrectly
found the parties did not stipulate to these values. The entry states the following: “the
parties did not stipulate to the value of the (Nationwide) pension,” “the parties did not
stipulate to the value of either the Nationwide Deferred Compensation Plan or the
Nationwide Supplemental Defined Contribution Plan,” and “the parties did not stipulate to
the value of John’s Merrill Lynch IRA.” Additionally, the trial court utilized a June 30, 2022
date to divide all of appellee’s retirement accounts while utilizing the February 13, 2023
date to divide Appellant’s Retirement Accounts.
{¶50} Appellee argues the parties never stipulated to one specific valuation date
and did not stipulate or agree to the duration of the marriage. We agree with appellee Delaware County, Case No. 23 CAF 10 0095
that the parties never stipulated to a specific valuation date and clearly did not stipulate
to or agree to the duration of the marriage. Accordingly, we find no error in the magistrate
and trial court’s determination of the duration of the marriage pursuant to R.C.
3105.171(A)(2). However, the magistrate’s judgment entry, which was adopted by the
trial court, incorrectly states that the values of appellant’s retirement accounts were not
stipulated to. Further, the trial court’s Exhibit 1 (property division worksheet) conflicts with
the judgment entry, as they each provide a different date for the valuation of Appellant’s
Retirement Accounts.
{¶51} Appellee also contends the trial court is permitted to utilize multiple valuation
dates as long the trial court sufficiently explains its reasoning. A trial court has the
discretion to determine the date of valuation in its discretion, and this date may vary from
asset to asset. [CITATION] (trial court clearly set forth
explanation for utilizing different valuations dates, so no abuse of discretion); [CITATION] (it is
within the court’s discretion to use different valuation dates where valuation or account
balances at a certain date were the only evidence before the court). However, the trial
court must adequately explain its reasons for choosing different valuation dates for certain
assets. Id. The record reflects that the magistrate and trial court adequately and
specifically explained its reasons for utilizing the differing valuation dates for the accounts
other than Appellant’s Retirement Accounts to achieve equity. The trial court valued
these accounts based upon the only valuation or account balances presented to the court.
{¶52} While the judgment entry issued by the magistrate and adopted by the trial
court clearly explains why it utilized the sometimes-varying valuation dates for the
====== Delaware County, Case No. 23 CAF 10 0095
accounts other than Appellant’s Retirement Accounts, neither the magistrate nor the trial
court explained why the values stipulated to by the parties was utilized on Exhibit 1, but
was not included in the judgment entry. These errors or defects are evident from the face
of the magistrate’s decision subsequently adopted by the trial court.
{¶53} Appellant’s second and third assignments of error are overruled in part and
affirmed in part. Upon remand, the trial court shall only address the narrow issues of (1)
determining whether the fact that the parties stipulated to the value of Appellant’s
Retirement Accounts impacts the division of Appellant’s Retirement Accounts
(Nationwide 401(K), Nationwide Pension, Nationwide Deferred Compensation,
Nationwide Supplemental Defined Contribution Plan, Appellant’s Merrill Lynch IRA) and
(2) if necessary, after determining whether the stipulations impact the division date of
Appellant’s Retirements Accounts, to provide clarification as to why the date of division
of the retirement accounts differs in Exhibit 1 and the judgment entry.
IV.
{¶54} In his fourth assignment of error, appellant argues the trial court committed
plain error in “double counting” two Chase checking accounts in the amounts of
$61,597.72 and $11,104.34 because these accounts were depleted to purchase the lot
in Pataskala and thus the trial court could not allocate these two checking accounts to
appellant on the balance sheet because the lot was listed on the balance sheet.
{¶55} The trial court must equitably divide marital property between spouses in
accordance with R.C. 3105.171. The trial court has broad discretion to determine an
equitable and fair division of the marital assets. [CITATION]. Delaware County, Case No. 23 CAF 10 0095
Thus, the valuation of marital assets is typically a factual issue that is left to the discretion
of the trial court. [CITATION]
{¶56} At trial, appellant testified he utilized the following to pay for the lot: (1)
$50,000 loan from his 401(K), (2) $67,000 from a Chase brokerage/investment account,
and (3) $33,000 from a Chase checking account that he liquidated upon purchase of the
lot. The Chase brokerage/investment account had a balance of $1,000, and this $1,000
was allocated to appellant on the balance sheet, not the entire $68,000. The magistrate
specifically found that, even though appellant provided no statements for this account,
the $67,000 withdrawn is “present in the equity of the Pataskala, Ohio lot.” Accordingly,
there was no double-counting of the investment account.
{¶57} It is unclear where appellant is claiming the $33,000 came from, either the
$11,104.34 checking account, the checking $61,597.72 account, or both. Anything over
the $33,000 would not be double-counting because appellant’s testimony is that only
$33,000 came from a Chase checking account. In her findings of fact, the magistrate
found appellant completely liquidated the $33,000 Chase checking account to buy the lot.
This was in accordance with appellant’s testimony that he liquidated the account to
purchase the lot. Thus, no $33,000 checking account was included on the court’s balance
sheet (Exhibit 1). In the “financial accounts” section of her decision, the magistrate
allocated two checking accounts in appellant’s name to him, utilizing the amounts
contained in appellant’s Exhibit 25 ($61,597.72 and $11,104.34), and found it fair and
equitable to assign these to appellant.
{¶58} The magistrate did not assign or “double count” the $33,000 because she
[SEGMENT 5]
found it was depleted to purchase the lot and did not list it on the balance sheet. However, Delaware County, Case No. 23 CAF 10 0095
the magistrate did separately assign to appellant two checking accounts with balances
contained in appellant’s Exhibit 25. Reading these two provisions of the magistrate’s order
together, the magistrate found the checking accounts listed on Exhibit 25 were separate
from the account used to fund the lot. As to the determination of the funding source for
the $33,000, the determination of whether a witness or evidence is credible rests solely
with the finder of fact, and we may not substitute our judgment. [CITATION]. If there are inconsistencies in the
testimony or evidence offered at trial, the trier of fact is free to believe or disbelieve any
or all of the evidence presented. [CITATION].
{¶59} Appellant also appears to be arguing the trial court’s determination as to
these checking accounts was against the manifest weight of the evidence. However, this
Court cannot conduct a manifest-weight-of-the-evidence review because appellant failed
to file timely objections to the magistrate’s decision. Additionally, the magistrate and trial
court based its determination on the testimony and evidence presented by the parties. “A
domestic relations court is in the best position to resolve disputes of fact, and assess the
credibility of the witnesses and the weight to be given to their testimony.” [CITATION].
{¶60} The magistrate additionally found appellant committed financial misconduct
with the purchase of the lot in violation of the temporary restraining order. R.C.
3105.171(E)(4) provides that “the court may compensate the offended spouse with a
distributive award or with a greater award of marital property.” Accordingly, to the extent
the magistrate and trial court compensated appellee with these funds, we cannot
conclude the magistrate’s decision, or the trial court’s adoption thereof, amounted to plain Delaware County, Case No. 23 CAF 10 0095
error that seriously affected the basic fairness, integrity, or public reputation of the judicial
process.
{¶61} Appellant’s fourth assignment of error is overruled.
V.
{¶62} In his fifth assignment of error, appellant argues the trial court committed
plain error by failing to characterize the 529 college savings accounts as marital assets
and by failing to incorporate them into the property division equalization payment.
{¶63} In the judgment entry by the magistrate later adopted and approved by the
trial court, the magistrate found the 529 college fund was not a marital asset for purposes
of determining the property division because the testimony demonstrated the accounts
are being held and maintained for the benefit of the children and payment of their
education-related expenses. The magistrate detailed the testimony of the parties in this
regard, specifically the testimony that both parties agreed the accounts were established
for their children’s education, neither party believed these assets to be their individual
assets, and both parties’ clear testimony that they intended the 529 plans to be for the
benefit of their children.
{¶64} Appellant asserts that since 529 college savings plans do not fall within the
definition of “separate property” under R.C. 3105.171, they legally are martial property,
and can never be found to be separate property. However, there is no clear-cut rule that
529 plans must always be classified as marital assets. [CITATION] (529 plans was not part of the property division because the parties
specifically contemplated the funds for education expenses for the children rather than a
personal financial account for either spouse); [CITATION] Delaware County, Case No. 23 CAF 10 0095
Dist.) (529 plan was the property of the children, and not marital property, where the
parties agreed to utilize the funds for the children’s education, thus suggesting that the
parties were not free to do with the funds as they liked); [CITATION]
(10th Dist.) (no error in finding savings accounts were not marital, but were assets of the
parties’ children, trial court’s determination supported by competent and credible
evidence). That determination is based upon the testimony and evidence presented in
each case, and an appellate court reviews the decision as to whether a 529 plan or other
account for the benefit of the child is marital to determine whether it is against the manifest
weight of the evidence. [CITATION]
{¶65} Of particular relevance, this Court has found that a trial court’s finding was
not in error when it determined certain funds belonged to the parties’ teenage children
when the parties intended to use the funds to pay for education. [CITATION]
{¶66} This Court cannot conduct a manifest-weight-of-the-evidence review
because appellant failed to file timely objections to the magistrate’s decision. Additionally,
the magistrate and trial court based their determination on the testimony and evidence
presented by the parties. “A domestic relations court is in the best position to resolve
disputes of fact, and assess the credibility of the witnesses and the weight to be given to
their testimony.” [CITATION]
{¶67} We find the magistrate and trial court’s treatment of the 529 plans does not
contain any error that would seriously affect the basic fairness, integrity, or public
reputation of the judicial process, or challenge the legitimacy of the underlying judicial
process itself. Appellant’s fifth assignment of error is overruled. Delaware County, Case No. 23 CAF 10 0095
VI.
{¶68} In his sixth assignment of error, appellant contends the trial court committed
plain error by characterizing the $50,000 401(K) loan obtain by appellant to fund his
purchase of the Pataskala lot to be his separate liability because the lot is treated as a
marital asset. Appellant contends since the lot is marital property, the loan used to obtain
the lot should also be martial property.
{¶69} Characterization of property as marital or separate debt must be supported
by competent and credible evidence. [CITATION]. Trial courts have broad discretion in determining what is separate property and what is
marital property. Id.
{¶70} The magistrate and trial court found the $50,000 401(K) loan that appellant
obtained in August of 2022 was separate debt. This finding was consistent with
appellant’s testimony. Appellant testified he believed he should be responsible for the
indebtedness. This finding is also consistent with appellant’s proposed findings of fact in
which he states, “plaintiff requests the Court to declare each party to be solely responsible
for the indebtedness that they incurred in their individual name, and, as a result, award
the $50,000 401(K) loan to Plaintiff.” Likewise, appellant did not include the $50,000 loan
on his proposed balance sheet as marital property. Accordingly, we find no plain error in
the treatment of the loan as appellant’s separate debt.
{¶71} Appellant asserts in his appellate brief that “the trial court failed to find that
the 401(K) loan to purchase the lot constitue[d] financial misconduct,” and thus it is
improper for the loan to be characterized as separate property. Appellant also asserts it
was error to classify the loan as separate property because appellee did not suffer any Delaware County, Case No. 23 CAF 10 0095
financial harm from his actions. However, the magistrate, and the trial court by adopting
the magistrate’s decision, clearly found appellant engaged in financial misconduct by
obtaining the loan in August of 2022 in violation of the temporary restraining order.
{¶72} The magistrate specifically found as follows: the funds in the 401(K) were
intended to be retirement assets of the parties; appellant personally gained and profited
from his financial activities utilizing the 401(K) loan; appellee’s interest was, in part,
defeated; and marital funds were dissipated to the advantage of appellant and the
disadvantage of appellee.
{¶73} A determination on financial misconduct rests on the fact and circumstances
of each case. [CITATION]. As such, the trier of fact is
given the duty to determine the credibility of each party’s assertions in determining
financial misconduct. Id. The trial court is provided discretion in determining whether a
spouse committed financial conduct pursuant to R.C. 3105.171(E)(3), generally subject
to whether the determination is against the manifest weight of the evidence. Id. Financial
misconduct implies some type of wrongdoing such as interference with the other spouses’
property rights. Typically, the offending spouse * * * either profits from the misconduct or
intentionally defeats the other spouses’ distribution of marital assets.” [CITATION]. To determine financial misconduct, a court must
look to the reasons behind the questioned activity or the results of that activity and
determine whether the wrongdoer profited from the activity or intentionally dissipated,
destroyed, concealed, or fraudulently disposed of the other spouse’s assets. [CITATION].
====== End of Part of a Court Ruling ====== Delaware County, Case No. 23 CAF 10 0095
{¶74} Appellant contends the magistrate and trial court committed error in their
determination that he personally gained and profited and that appellee’s interest was, in
part, defeated, by the purchase of the lot in August of 2022 without appellee’s knowledge.
While the general standard of review is whether the trial court’s finding of financial
misconduct is against the manifest weight of the evidence, that standard is not applicable
[SEGMENT 6]
in this case because appellant did not timely filed objections to the magistrate’s decision.
Essentially, appellant is asking this Court to conduct a manifest weight of the evidence
review to determine whether the decision of the magistrate and trial court was
unsupported due to the testimony and evidence he presented at trial. We cannot conduct
a manifest-weight-of-the-evidence review since no timely objections were filed to the
magistrate’s decision.
{¶75} We cannot conclude that the magistrate's decision, or the trial court's
adoption thereof, amounted to plain error that “seriously affect[ed] the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy of
the underlying judicial process itself.” [CITATION] at ¶ 37, quoting [CITATION], syllabus. Appellant’s sixth assignment of error is overruled.
VII.
{¶76} In his seventh assignment of error, appellant contends the trial court
committed plain error by failing to conclude appellee engaged in financial misconduct
when she unilaterally withdrew $113,087.75 from the 529 college savings accounts
without appellant’s knowledge or consent.
{¶77} The magistrate issued the following findings of fact: appellee testified she
changed the e-mail on the account because she initiated the transfers to the schools; Delaware County, Case No. 23 CAF 10 0095
appellee testified she never changed the password on the account and appellant always
had access to the account; appellant testified he believed the 529 funds for Sydney were
used for legitimate educational expenses, although he could not remember if he made
any of those transactions; appellant testified he and appellee had a discussion about
needing to send money to the school, but he does not remember what happened after
that; appellant testified he did not look at the accounts because he did not need to;
appellant believes after appellee started working full-time, appellee should have used her
income to pay the tuition, room, and board for their children; appellant changed the
password to the 529 fund for Symone during the divorce so appellee could not access
the funds; appellant testified he was not making a statement one way or the other as to
whether the 529 funds were used for legitimate purposes; appellant believes it is financial
misconduct because he did not approve the transfers; appellee testified appellant never
questioned her on the 529 expenses and it was appellant who informed appellee she
could use the 529 accounts to purchase books; and appellee testified she utilized funds
from the 529 accounts to pay for legitimate educational expenses. The magistrate
concluded: it was clear both parties intended for the 529 plans to be for the benefit of the
children; and appellee did not defeat appellant’s marital interest in the accounts because
both parties testified the accounts were for the children’s education needs that are
ongoing and appellee used the funds for educational expenses.
{¶78} While appellant argues appellee committed “electronic forgery” by utilizing
the password for the 529 account in order to change the e-mail on the account, appellee’s
undisputed testimony is that appellant gave her the password to the account in 2016. Delaware County, Case No. 23 CAF 10 0095
Accordingly, we find no plain error in the trial court’s determination that this did not
constitute financial misconduct.
{¶79} Appellant cites this Court’s decision in [CITATION] for the
proposition that a spouse automatically commits financial misconduct by withdrawing
funds from a 529 plan without the knowledge or consent of the other spouse, and that
oral testimony by the spouse withdrawing the funds is never sufficient to trace the funds.
[CITATION]
{¶80} We disagree with appellant’s characterization of the [CITATION] case. In
[CITATION], we found the trial court’s determination that one spouse had not sufficiently
traced 529 funds from the college savings account to expenditures made on behalf of the
child’s college education was not against the manifest weight of the evidence and a
finding of financial misconduct by the trial court was not an abuse of discretion. Id. We
specifically noted in [CITATION] the broad discretion the trial court has in a finding of financial
misconduct. Id. Additionally, we did not issue a bright-line rule that a spouse
automatically commits financial misconduct by withdrawing funds from a 529 plan without
the consent of the other spouse, or that the oral testimony by the spouse withdrawing the
funds is never sufficient to trace the funds. Rather, we re-iterated that “it was within the
trial court’s province” to find the appellant had not sufficiently traced the funds. Id. In
this case, it was similarly within the trial court’s province to determine, based upon the
testimony and evidence offered by appellee, that appellee sufficiently traced the funds.
We find no plain error in the trial court’s determination.
{¶81} Appellant essentially requests this Court conduct a manifest-weight-of-the-
evidence review of the trial court’s determination as to the sufficiency of appellee’s Delaware County, Case No. 23 CAF 10 0095
evidence tracing the funds. We decline to do so since appellant did not file timely
objections to the magistrate’s decision. We cannot conclude the magistrate's decision,
or the trial court's adoption thereof, in this regard amounted to plain error that “seriously
affect[ed] the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” [CITATION] Appellant’s seventh
assignment of error is overruled.
VIII.
{¶82} In his eighth assignment of error, appellant contends the trial court
committed plain error when it awarded the entire health savings account to appellant and
failed to restrain appellee from using funds in this account after July 18, 2022.
{¶83} Appellant’s argument is essentially that the trial court should have valued
the account as of September 30, 2023, instead of July 18, 2022. Appellant attaches to
his appellate brief Exhibit D, which is purportedly a print-out of the account balance as of
September 30, 2023, and with a “statement print date” of January 31, 2024. This exhibit
contains information from dates subsequent to the trial, subsequent to the magistrate’s
decision, and subsequent to the trial court’s judgment entry; further, it was “printed out”
after this appeal was already filed. Appellant’s reliance on a new exhibit attached to his
appellate brief in support of his appeal is misplaced. “A reviewing court cannot add matter
to the record before it, which was not a part of the trial court’s proceedings, and then
decide the appeal on the basis of the new matter.” [CITATION] This Delaware County, Case No. 23 CAF 10 0095
is particularly true in this case because appellant failed to timely object to the magistrate’s
decision, and we review the trial court’s decision for plain error.
{¶84} The magistrate specifically stated why she utilized the July 18, 2022 date to
value the Health Savings Account, i.e., because appellant testified the HSA had a value
of $7,546.78 and that was the only value presented at trial by either of the parties. We
find no plain error in the magistrate’s determination.
{¶85} As to appellant’s argument regarding a restraining order, appellant did not
request such an order be issued, or ask that the trial court wait to value the HSA until
some later date. A litigant who has the opportunity to raise an issue in the trial court, but
declines to do so, waives the right to raise that issue on appeal. [CITATION]
{¶86} Appellant’s eighth assignment of error is overruled.
IX.
{¶87} In his ninth assignment of error, appellant argues the trial court committed
plain error in concluding that appellee did not engage in financial misconduct for either
(1) the failure to disclose the $44,000 previously distributed to appellee from the parties’
joint TD Ameritrade Investment Account or (2) spending the entire $44,000 during a 60-
day period in 2016 without appellant’s knowledge.
{¶88} Both parties testified appellant divided the TD Ameritrade account between
themselves in 2016, with appellant receiving $49,000 and appellee receiving $44,000.
The magistrate found the transfer of the $44,000 occurred years prior to the parties’
separation and, by appellant’s own testimony, there were no strings attached to this
transfer. The magistrate stated she would “not engage in revisionist history with regard Delaware County, Case No. 23 CAF 10 0095
to this account transfer, nor will the magistrate second guess the joint marital decisions
of the parties with respect to an account transfer that occurred * * * years prior to the
parties’ separation.”
{¶89} The magistrate clearly found appellee’s testimony that she spent the
$44,000 on a new water heater for the marital home, repairs to the marital home, the
purchase of a new family pet, swimming lessons for appellant’s mother, cabin trips, and
expenses for the family and the children, to be credible. Accordingly, we find no plain
error in the determination that appellee did not commit financial misconduct for the failure
to disclose the $44,000 because the funds did not exist as of the date of the divorce filing.
[SEGMENT 7]
It is appellant’s position that this testimony is not credible, and appellee’s explanation is
not plausible. However, the trier of fact is given the duty to determine the credibility of
each party’s assertions in determining financial misconduct. [CITATION]. The determination of whether a witness or evidence is credible
rests solely with the finder of fact, and we may not substitute or judgment. [CITATION]. If there are inconsistencies in
the testimony or evidence offered at trial, the trier of fact is free to believe or disbelieve
any or all of the evidence presented. [CITATION].
{¶90} Similarly, the magistrate and trial court found no financial misconduct for
appellee’s alleged “excessive spending” of the $44,000 due to the parties’ testimony that
there were no “restrictions” or “strings” attached to these funds being distributed among
the spouses. We find no plain error in this determination. This determination is based
upon the testimony of the parties. We may not substitute our judgment for the trier of
fact’s determination of credibility. Appellant’s ninth assignment of error is overruled. Delaware County, Case No. 23 CAF 10 0095
X.
{¶91} In his tenth assignment of error, appellant contends the trial court committed
plain error by failing to conclude that appellee’s transfer of $35,300 from restricted savings
accounts to checking accounts (and ultimate spending of it) in violation of the mutual
restraining order constituted financial misconduct.
{¶92} We first note that it is unclear as to whether appellant asked the magistrate
to find financial misconduct for appellee’s alleged transfer from $35,300 from restricted
savings accounts to checking accounts in violation of the restraining order. This is
evidenced by appellant’s closing argument, in which “Exhibit A,” appellant’s proposed
awards for financial misconduct, includes three lines for requested financial misconduct
findings: “#1 – TD Ameritrade ($44,000), #2 – 529 Plans ($213,895), #3 – Excessive
Spending ($233,560).” However, counsel for appellant did cross-examine appellee on
these transfers.
{¶93} We find no plain error in the magistrate and trial court finding no financial
misconduct on the part of appellee. We again find this is a situation in which the trier of
fact found appellee’s testimony credible, as is the trial court’s province. Appellee testified
she transferred funds from her savings to her checking and from her checking to her
savings because her daughters would deposit their paychecks into the Huntington
account (joint account between appellee and her daughters), and request appellee pay
various bills for them. Thus, she was continually moving money at various times;
however, these were not marital funds, but were separate funds of her children. Appellant
asserts this testimony is not credible. However, the determination of whether a witness Delaware County, Case No. 23 CAF 10 0095
or evidence is credible rests solely with the finder of fact, and we may not substitute or
judgment. [CITATION] (1984).
{¶94} While appellant asks this Court to conduct a manifest-weight-of-the-
evidence review of the trial court’s determination, we cannot do so because appellant did
not timely file objections to the magistrate’s decision. We cannot conclude that the
magistrate's decision, or the trial court's adoption thereof, in this regard amounted to plain
error that “seriously affect[ed] the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.” [CITATION], at ¶ 37, quoting [CITATION], syllabus. Appellant’s tenth assignment of error is overruled.
XI.
{¶95} In his final assignment of error, appellant contends the trial court committed
plain error in failing to conclude that appellee’s allegedly excessive spending of
$233,559.19 in 4.5 years constituted financial misconduct. He argues that since he
managed the money with no issues from 2000-2016 and appellee spent the money in a
“non-customary” manner when she took over discretionary spending in 2016, appellee’s
actions amount to financial misconduct.
{¶96} Appellant testified to numerous bank deposits, transfers, and Greenlight
transfers which he believes proves his allegations of “excessive spending” by appellee
from 2016 through the date when appellee moved out of the marital home in 2021.
{¶97} The magistrate found the parties disagreed throughout their marriage how
to spend money; however, this constant disagreement was insufficient to meet the burden
of financial misconduct. We find no plain error in this determination. Appellant believed Delaware County, Case No. 23 CAF 10 0095
appellee should have been investing and covering their discretionary spending from the
funds he gave her. He admits that though this was his expectation, he chose not to check
account balances he had access to, but felt since appellee did not ask “permission” or
invest it as he thought she should, it was financial misconduct. Appellee testified that
while appellant kept certain funds for himself and spent money on his family, the budgeted
amount he provided her was not sufficient to meet expenses, and that the bulk of the
funds at issue were used for the parties’ three children and items around the home.
{¶98} The magistrate made the determination that the spending by appellee was
not excessive and no financial misconduct occurred based upon the conflicting testimony
of the parties. A determination on financial misconduct rests on the facts and
circumstances of each case. [CITATION]. As such,
the trier of fact is given the duty to determine the credibility of each party’s assertions in
determining financial misconduct. Id. The determination of whether a witness or
evidence is credible rests solely with the finder of fact, and we may not substitute our
judgment. [CITATION]. If there are inconsistencies in the testimony or evidence offered at trial, the trier of fact is
free to believe or disbelieve any or all of the evidence presented. [CITATION].
{¶99} We find the cases cited by appellant not to be analogous to the instant case.
First, none of the cases involve the use of the plain error doctrine; rather, they involved
an abuse of discretion review. Further, they involved different factual scenarios than what
was presented in this case. [CITATION] (spending was
post-separation; withdrew funds from a home equity line of credit while temporary Delaware County, Case No. 23 CAF 10 0095
restraining order was in place; appellant admitted she was angry and overspent); [CITATION]
(during the marriage, husband withdrew and spent
all of his retirement without wife’s knowledge); [CITATION]
(wife took the money she was supposed to use the pay the bills and she did
not, causing the home to go into foreclosure and the utilities to be shut off).
{¶100} Appellant essentially requests this Court conduct a manifest-weight-of-the-
evidence review of the trial court’s determination. We decline to do so since appellant
did not file timely objections to the magistrate’s decision. We cannot conclude that the
magistrate's decision, or the trial court's adoption thereof, in this regard amounted to plain
error that “seriously affect[ed] the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.” [CITATION], quoting [CITATION], 79 Ohio St.3d 116,
syllabus. Appellant’s eleventh assignment of error is overruled.
{¶101} Based on the foregoing, appellant’s first, fourth, fifth, sixth, seventh, eighth,
ninth, tenth, and eleventh assignments of error are overruled. Appellant’s second and
third assignments of error are overruled in part and sustained in part.
{¶102} Accordingly, the September 29, 2023 judgment entry of the Delaware Court
of Common Pleas, Domestic Relations Division is affirmed in part, and reversed and
remanded in part. Upon remand, the trial court shall only address the narrow issues of
(1) determining whether the fact that the parties stipulated to the value of Appellant’s
Retirement Accounts impacts the division date of Appellant’s Retirement Accounts
(Nationwide 401(K), Nationwide Pension, Nationwide Deferred Compensation,
Nationwide Supplemental Defined Contribution Plan, Appellant’s Merrill Lynch IRA) and Delaware County, Case No. 23 CAF 10 0095
(2) if necessary, after determining whether the stipulations impact the division date of
Appellant’s Retirements Accounts, to provide clarification as to why the date of division
of the retirement accounts differs in Exhibit 1 and the judgment entry.
By Gwin, P.J.,
Wise, J., and
King, J., concur
[CITATION]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
WILLIAM FREYTAG,
CASE NO. 17-23-14
PLAINTIFF-APPELLANT,
v.
JOYCE FREYTAG, OPINION
DEFENDANT-APPELLEE.
Appeal from Shelby County Common Pleas Court
Domestic Relations Division
Trial Court No. 20 DV 000140
[SEGMENT 8]
Judgment Affirmed
Date of Decision: June 24, 2024
APPEARANCES:
Todd D. Severt and Bonnie-Blue T. Sullivan for Appellant
Quentin M. Derryberry II for Appellee Case No. 17-23-14
WILLAMOWSKI, P.J.
{¶1} Plaintiff-appellant William J. Freytag (“William”) appeals the
judgment of the Domestic Relations Division of the Shelby County Court of
Common Pleas, arguing that the trial court erred in valuing and classifying certain
assets; appointing an expert to conduct valuations; failing to grant a continuance;
and finding him to be physically competent to represent himself. For the reasons
set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} William and Joyce E. Freytag (“Joyce”) were married on January 14,
1989. On June 24, 2020, William filed a complaint for divorce. The assets subject
to this litigation included several companies: Albert Freytag, Inc. (“AFI”); J&B
Land Company, Ltd. (“J&B Land”); and 493 Realty Services, LLC (“493 Realty
Services”). The final hearing was initially set for April 27, 2021 but was
rescheduled to November 23, 2021.
{¶3} During the final pretrial hearing on November 12, 2021, the magistrate
discovered that the value of a number of substantial assets in the marital estate had
not been assessed and that documents that could establish the value of these assets
had not yet been produced. Concluding that a decision could not be rendered in the
absence of such information, the trial court appointed a certified public accountant,
Case No. 17-23-14
Terry L. Yoho (“Yoho”), to conduct valuations for the assets in the marital estate
and then continued the final hearing.
{¶4} On August 31, 2022, William’s lawyer filed a motion to withdraw as
counsel on the grounds that “the attorney-client relationship ha[d] become offensive
and combative.” (Doc. 189). This motion was granted on September 15, 2022. On
September 28, 2022, the trial court scheduled the final hearing for January 23, 2023.
Yoho submitted her final report on November 28, 2022. This report concluded that
AFI had a value of $4,836,000.00; that J&B Land owned two properties worth
$314,620.00; that 493 Realty Services held properties worth $215,000.00; and that
the marital estate was worth a total of $12,233,188.00.
{¶5} On January 23, 2023, William appeared at the final hearing without an
attorney and indicated that he intended to proceed pro se. Yoho, Joyce, and William
testified at the hearing. William also called a certified public accountant working
with AFI, Larry E. Elsner (“Elsner”), as a witness. In a decision issued on March
7, 2023, the magistrate determined that AFI, J&B Land, and 493 Realty Services
were marital assets that were worth the amounts stated in Yoho’s report. William
then retained a new attorney. Both parties then filed objections to the magistrate’s
decision. On August 18, 2023, the trial court issued a judgment entry overruling the
objections of the parties and granting a divorce.
{¶6} William filed his notice of appeal on September 14, 2023 and raises the
following seven assignments of error:
```
First Assignment of Error
The trial court erred in finding the equipment located at 4625
Hardin-Wapak Road, Sidney, Ohio has a value of $400,000.00.
Second Assignment of Error
The trial court erred in failing to award Appellant his separate
property interest in the Prenger account ending in 4293.
Third Assignment of Error
The trial court erred in failing to award Appellant his separate
property interest in Albert Freytag, Inc.
Fourth Assignment of Error
The trial court erred in failing to award Appellant his separate
property interest in the J&B Land Company, Ltd.
Fifth Assignment of Error
The trial court erred in relying upon the court-appointed expert’s
valuation.
Sixth Assignment of Error
The trial court erred in denying Appellant his request for a
continuance.
Seventh Assignment of Error
The trial court erred in finding Appellant to be physically
competent to be self-represented.
We will consider the assignments of error in the following order: sixth, seventh,
second, third, fourth, first, and fifth.
``` Case No. 17-23-14
Sixth Assignment of Error
{¶7} William asserts that the trial court abused its discretion by failing to
grant him a continuance.
Legal Standard
{¶8} In evaluating a ruling on a motion for a continuance, an “appellate court
must ‘apply a balancing test, weighing the trial court’s interest in controlling its own
docket, including facilitating the efficient dispensation of justice, versus the
potential prejudice to the moving party.’” [CITATION], quoting [CITATION].
In considering a motion for a continuance, a court should consider (1)
the length of the delay requested; (2) whether other continuances have
been requested and granted; (3) any inconvenience to parties,
witnesses, opposing counsel, and the court; (4) whether the requested
delay is for a legitimate purpose or is instead dilatory, purposeful, or
contrived; (5) whether the defendant contributed to the situation that
gives rise to the motion for a continuance; and (6) other relevant
factors, depending on the unique facts of a case.
[CITATION]. “It is well established
under Ohio law that the decision to grant or deny a continuance lies within the sound
discretion of the trial court.” [CITATION].
An abuse of discretion is more than an error of judgment but is present where a
determination is arbitrary, capricious, or unreasonable. [CITATION].
Case No. 17-23-14
Legal Analysis
{¶9} In this case, William did not file a formal request for a continuance with
the trial court.1 At the final hearing, he asserted that Yoho’s report was based upon
“incomplete” information and mentioned he had wanted a continuance or
“extension” to compile better business records. (Tr. 24, 106). However, Elsner
stated that AFI’s business records were a “[s]hambles” and testified about
significant portions of financial data that were not available. (Tr. 355). His
testimony contains no indication that current or complete records could be available
in the near future. The record contains no indication that William could have
obtained any such information if a continuance had been granted.
{¶10} Further, the final hearing was originally scheduled for April 27, 2021;
was then delayed until November 23, 2021; and then rescheduled for January 23,
2023. These delays were largely occasioned by issues with discovery; the
availability of various records; and the need to give Yoho time to value the marital
assets. Thus, the record indicates that the trial court repeatedly sought to
accommodate these ongoing discovery issues but contains no indication that a
continuance would have accomplished anything other than further delay.
1
On December 22, 2022, William filed a pro se motion to transfer venue that mentioned his difficulties in
obtaining various business records. At the final hearing, he mentioned that he had asked for a continuance.
This appears to be a reference to his earlier motion to transfer. In considering the objections to the
magistrate’s decision, the trial court refused to “consider this motion [to transfer] to be one for continuance.”
(Doc. 335). Nonetheless, we will still consider the appropriateness of a continuance in this situation.
Case No. 17-23-14
{¶11} On appeal, William argues that the trial court should have granted him
a continuance to obtain counsel. But his statements at the final hearing indicate that
he wanted a continuance to compile more recent business records. William was
initially represented in this case, but his counsel filed a motion to withdraw five
months before the final hearing. The motion to withdraw was granted over four
months prior to the final hearing. Thus, William had several months to retain
counsel, but the record contains no indication that he took any steps to secure
representation.
{¶12} When William appeared at the final hearing without an attorney, the
magistrate asked him if he was going to proceed pro se. In response, William
affirmed that he intended to represent himself at the final hearing. The record does
not suggest that he would have used any delay occasioned by a continuance to obtain
counsel. Having examined the facts in the record, we find no indication that the
trial court abused its discretion by not granting a continuance. The sixth assignment
of error is overruled.
Seventh Assignment of Error
{¶13} William asserts that the trial court should have concluded that he was
not physically competent to represent himself at the final hearing.
Legal Standard
{¶14} “The presumption of the law is that the action of the trial court is legal
[SEGMENT 9]
until the contrary affirmatively appears * * *.” [CITATION]
Case No. 17-23-14
*3 (3d Dist. Nov. 24, 1987), quoting [CITATION] The appellant has the “burden to affirmatively demonstrate to the
appellate court that error has occurred in the action of the trial court.” [CITATION] This involves “formulating an
argument on appeal and supporting that argument with citations to the record and to
legal authority.” [CITATION] An appellate court does not have a “duty
to construct legal arguments to support an appellant’s appeal.” [CITATION]
Legal Analysis
{¶15} William appeared at the final hearing without an attorney and affirmed
that he intended to represent himself. He argues that the trial court should have
found him physically incompetent to proceed pro se because, at the final hearing,
others had to repeat themselves on several occasions after he indicated he could not
hear their statements.2 In his brief, William has not identified any legal authority
that would suggest that the trial court should have conducted a competency
evaluation in such a situation or that would indicate that the trial court erred by
permitting him to proceed pro se. See App.R. 16(A)(7).
2
The record does not indicate that any hearing issues that William may have had ultimately interfered with
his ability to understand what was transpiring at the proceeding. Once these unheard statements were
repeated, William was able to respond appropriately. The appellee also suggests that these hearing issues
were related to the acoustics of the room by pointing to several other instances in which others in the room
had to ask for statements to be repeated. Tr. 27, 48, 66, 98, 115, 116, 128, 131, 140, 147, 278.
Case No. 17-23-14
{¶16} As a general matter, “[a]ny person can choose to represent himself.”
[CITATION]. Further, a “trial court
may not mandate that a divorce litigant has an attorney.” [CITATION]. On appeal, William has not demonstrated that the trial court erred by failing to stop
him from choosing to do what he had a right to do. Because he has failed to carry
the burden of affirmatively demonstrating that the trial court committed an error,
the seventh assignment of error is overruled.
Second Assignment of Error
{¶17} William argues that the trial court improperly classified the
$979,875.00 in Prenger Account #-4293 as a marital asset.
Legal Standard
{¶18} Under R.C. 3105.171, a two-step process generally governs the
division of the assets between the parties to a divorce proceeding. [CITATION].
First, the trial court must “classify the assets of
the parties as marital or separate.” [CITATION].
Second, “the trial court must equitably allocate the marital and separate property.”
[CITATION].
{¶19} “Marital property generally includes all property acquired by either
party during the marriage as well as the appreciation of separate property due to the
labor, monetary, or in-kind contributions of either party during the marriage.”
Case No. 17-23-14
[CITATION], quoting [CITATION]. Separate property cannot be marital property. R.C.
3105.171(A)(3)(b). Under R.C. 3105.171(A)(6)(a), the following assets constitute
separate property:
(i) An inheritance by one spouse by bequest, devise, or descent during
the course of the marriage;
(ii) Any real or personal property or interest in real or personal
property that was acquired by one spouse prior to the date of the
marriage;
(iii) Passive income and appreciation acquired from separate property
by one spouse during the marriage;
(iv) Any real or personal property or interest in real or personal
property acquired by one spouse after a decree of legal separation
issued under section 3105.17 of the Revised Code;
(v) Any real or personal property or interest in real or personal
property that is excluded by a valid antenuptial or postnuptial
agreement;
(vi) Compensation to a spouse for the spouse’s personal injury, except
for loss of marital earnings and compensation for expenses paid from
marital assets;
(vii) Any gift of any real or personal property or of an interest in real
or personal property that is made after the date of the marriage and
that is proven by clear and convincing evidence to have been given to
only one spouse.
“The commingling of separate property with other property of any type does not
destroy the identity of the separate property as separate property, except when the
separate property is not traceable.” R.C. 3105.171(A)(6)(b). Further, as a general
Case No. 17-23-14
matter, “the holding of title to property by one spouse individually or by both
spouses in a form of co-ownership does not determine whether the property is
marital property or separate property.” R.C. 3105.171(H).
{¶20} “Property acquired during a marriage is presumed to be marital
property unless it can be shown to be separate.” [CITATION] Further, “[i]f the parties contest whether an asset is marital or separate
property, the asset is presumed to be marital property unless it is proven otherwise.”
[CITATION].
{¶21} “The party seeking to establish that property is separate rather than
marital bears the burden of proof, by a preponderance of the evidence, to trace the
asset to separate property.” [CITATION], quoting [CITATION] “The burden to prove the separate identity of property can be
met with documents or testimony, but ‘merely claim[ing] that the property * * *
constitutes * * * separate property does not make it so.’” [CITATION], quoting [CITATION] “Preponderance of the evidence means the greater weight of the
evidence that is necessary to destroy the equilibrium.” [CITATION]
====== Case No. 17-23-14
{¶22} In general, “[t]he separate property is retained by the party who
obtained that particular asset regardless of whether the separate property was
acquired before or during the marriage.” [CITATION], supra, at ¶ 8, citing R.C.
3105.171(D). “The marital property, on the other hand, is to be divided equally
between the parties unless such a division would be inequitable.” [CITATION],
[citation]. This is because “each
spouse is considered to have contributed equally to the acquisition of marital
property.” [CITATION], supra, at ¶ 64, quoting [CITATION], supra, at ¶ 15.
{¶23} “The trial court’s classification of property as marital or separate is a
factual determination” and is reviewed under a manifest weight standard. [CITATION]. Accordingly, the classification of an
asset will not be reversed if the record contains some competent, credible evidence
that supports the trial court’s determination. Id. “This highly deferential standard
of review permits the affirmation of the trial court’s judgment if there is ‘even some
evidence’ to support the court’s finding.” [CITATION], quoting [CITATION], *1 (3d Dist. Dec. 5, 2001).
{¶24} Further, “a party proceeding pro se is held to the same procedural
standards as other litigants that have retained counsel.” [CITATION]. For this reason, pro se litigants “must comply with the rules of
procedure and must accept the consequences of their own mistakes.” [CITATION].
Case No. 17-23-14
[CITATION], ¶ 7 (3d Dist.), quoting [CITATION], ¶ 16 (8th Dist.).
Legal Analysis
{¶25} The record establishes that the parties disputed whether Prenger
Account #-4293 was established before or during the marriage. The trial court noted
that the only documentation that was submitted by the parties for this account
“indicates the earliest dividend deposit to be January 18, 2005.” (Doc. 335). While
William asserted that this account was funded with monies inherited from his
parents before his marriage to Joyce, he did not provide any documentation at the
hearing that could support his contentions against Joyce’s contentions. The trial
court apparently chose not to rely upon William’s unsupported representations and
classified this account as marital property.
{¶26} On appeal, William points to the fact that only his name was listed on
this account. But this fact does not establish that these funds are separate property
because “the form in which title is held is not determinative of whether the property
is separate or marital.” [CITATION], supra, at ¶ 22, citing R.C. 3105.171(H). See
[CITATION] (having an investment account “in the name of one spouse individually or in the names of both
spouses does not determine whether that property is marital or separate”). Since the
trial court’s determination is supported by some competent, credible evidence, we
Case No. 17-23-14
conclude that William has not established that the trial court erred in classifying this
account as marital. The second assignment of error is overruled.
Third Assignment of Error
[SEGMENT 10]
{¶27} William argues that the trial court erred by classifying AFI as a marital
asset.
Legal Standard
{¶28} We reincorporate the legal standard for asset classification as set forth
under the second assignment of error.
Legal Analysis
{¶29} William argues that the trial court should have classified AFI as
separate property.3 Since the record establishes that the parties disputed the
classification of this asset, William had the burden of establishing that AFI was
separate property. See [CITATION]. At the final hearing, statements from Joyce
and William indicated that he purchased at least one half of the shares in AFI after
his brother’s passing in 2015. Joyce also testified that, during the marriage, she
worked for AFI on an “as needed” basis but was not personally compensated for her
contributions.
3
In the final distribution of assets, William retained full ownership of AFI.
====== End of Part ====== Case No. 17-23-14
{¶30} Yoho testified that AFI’s tax returns indicated that William held the
shares in AFI and that William had told her that “he owned some shares [in AFI]
prior to the marriage.” (Tr. 37). However, Yoho stated that William “did not
provide * * * a share journal or any other information that would support” this claim.
(Tr. 37). While questioning Yoho, William asserted that the records from his first
divorce would have shown that he owned one half of AFI before he married Joyce.
But he did not submit any documentation to substantiate this claim.
{¶31} The trial court concluded that William failed to produce evidence that
could establish that any portion of AFI was separate property and that “[m]erely
claiming” that AFI was not a marital assets at the final hearing was not sufficient to
carry the burden of establishing that it was separate property. (Doc. 335). See
[CITATION], supra, at ¶ 28. Having examined the evidence in the record, we
conclude that the trial court’s conclusion was based upon some competent, credible
evidence. The third assignment of error is overruled.
Fourth Assignment of Error
{¶32} William argues that the trial court erred in classifying J&B Land as a
marital asset.
Legal Standard
{¶33} We reincorporate the legal standard for asset classification as set forth
under the second assignment of error.
====== End of Part of a Court Ruling ====== Case No. 17-23-14
Legal Analysis
{¶34} The evidence in the record establishes that J&B Land was
incorporated on December 19, 1996. Ex. 34. Further, the assets owned by this
entity consisted of two real estate holdings. The property records submitted with
Yoho’s report indicated that J&B Land acquired these two assets in 2006 and 2018.
Since J&B Land and its assets were acquired during the marriage, the trial court
correctly presumed that these assets were marital. The trial court then noted that
William did not present any “evidence to overcome” this presumption by tracing
these purchases to separate property. (Doc. 335). Having examined the record, we
conclude that the trial court’s classification of J&B Land is supported by some
competent, credible evidence. The fourth assignment of error is overruled.
First Assignment of Error
{¶35} William argues that the trial court erred in assigning a value of
$400,000.00 to equipment that was stored at a location on Hardin-Wapak Road.
Legal Standard
{¶36} “The process of fashioning an equitable division of marital property
will generally require a trial court to assign or adopt valuations for marital assets.”
[CITATION], ¶ 13 (3d Dist.).
In determining the value of assets, the trial court ‘is not required to
adopt any particular method of valuation.’ [CITATION],
925 N.E.2d 167, ¶ 27 (3d Dist.). ‘Rigid rules to determine value cannot be established, as equity
depends on the totality of the circumstances.’ [CITATION]
Case No. 17-23-14
Auglaize No. 2-14-06, 2014-Ohio-5625, ¶ 18 quoting [CITATION].
Id. at ¶ 13. Rather, a trial court must “have a rational, evidentiary basis for assigning
value to marital property.” [CITATION].
‘The valuation of property in a divorce case is a question of fact.’
[CITATION]. ‘Accordingly, a trial court’s decision pertaining to the
valuation of property will be reviewed under a manifest weight of the
evidence standard and will not be reversed so long as it is supported
by some competent and credible evidence.’ Id.
Id. at ¶ 12. “When parties present substantially different valuations of an asset, the
trial court is free to believe all, part, or none of any witnesses’ testimony.” [CITATION].
Legal Analysis
{¶37} At the final hearing, Yoho testified that the equipment at Hardin-
Wapak Road was assigned a value of $400,000.00. Her testimony indicates that this
valuation was not based on an assessment from a professional evaluator but was
“based off of what Mr. Freytag believed it to be[.]” (Tr. 81). She affirmed that the
figure of $400,000.00 was simply what “Mr. Freytag and his counsel decided it [the
equipment] was worth[.]” (Tr. 80). William also assigned a value of $400,000.00
to this equipment on a table of his assets that was submitted during this litigation.
{¶38} Since the value assigned to this equipment came from William, he is
ultimately arguing that the trial court erred by relying on the figure that he provided.
Case No. 17-23-14
Further, in contesting this valuation, he has not identified any defects with the
number that he supplied. See [CITATION]. We conclude that the trial court’s valuation is not against the manifest weight
of the evidence. The first assignment of error is overruled.
Fifth Assignment of Error
{¶39} William asserts that the trial court should not have sua sponte
appointed Yoho as an expert and that her valuations of AFI, J&B Land, and 493
Realty Services were incomplete or deficient.
Legal Standard
{¶40} We reincorporate the legal standards for the valuation and
classification of property as set forth under the first and second assignments of error.
Legal Analysis
{¶41} William raises seven arguments under this assignment of error. First,
he asserts that the trial court should not have appointed Yoho as an expert because
Joyce did not file a timely answer.4 William asserts that the trial court should have
proceeded with an uncontested divorce instead of accepting Joyce’s untimely
answer and appointing an expert. But even if this matter had continued to proceed
4
William filed a complaint on June 24, 2020. Joyce’s attorney filed a notice of appearance on July 27, 2020.
Thereafter, Joyce actively participated in the litigation. After Joyce filed an answer in January of 2021,
William responded by filing a motion to dismiss. The trial court deemed Joyce’s answer timely filed and
denied William’s motion to dismiss.
Case No. 17-23-14
as an uncontested divorce, the record contains no indication that the magistrate
would not have ultimately appointed an expert.
{¶42} Initially, we note that Civ.R. 75(F) expressly exempts divorce
proceedings from the provisions in Civ.R. 55 that permit default judgments to be
granted. [CITATION]. Thus, even if an answer has
not been filed in a divorce proceeding, the defendant is still not prevented “from
contesting * * * issues in the divorce” or “presenting evidence” at the final hearing.
[CITATION], quoting [CITATION]. Further, in uncontested
divorces, trial courts still have “an independent judicial obligation to divide the
marital and separate property equitably between the parties * * *.” [CITATION]. In this process,
[a] trial court must generally assign and consider the values of marital
assets in order to equitably divide those assets. * * * A court cannot
satisfy its duty without probative evidence of the value of marital
assets. * * *
Nevertheless, a party’s failure to put on any evidence of value does
not permit the court to assign an unknown as the value of a marital
asset.
(Citations omitted.) [CITATION]. In
some cases, the trial court can “perform its statutory charge to divide marital assets
equally only by appointing a qualified, independent appraiser to provide the court a
report on which it c[an] rely.” [CITATION].
====== End of Part of a Court Ruling ====== Case No. 17-23-14
{¶43} Turning to the facts of the case presently before us, a final hearing had been scheduled for November 23, 2021. However, during a pretrial conference on November 12, 2021, the magistrate concluded “that the marital estate had not been adequately assessed or appraised which would have left the magistrate unable to render a decision. Consequently, * * * this Court caused for an expert to be appointed * * *.” (Doc. 243). The trial court also noted the need for an expert was evident in the docket because of the recurring issues with obtaining information about these asset values during discovery.
[SEGMENT 11]
{¶44} By the time of the final hearing, William was also unable to produce accurate or complete records that could establish an alternative valuation for AFI. An accountant involved with the business also testified that the company’s records were a “shambles.” (Tr. 355). The evidence in the record contains no indication that the trial court could have arrived at any reasonably accurate valuation for AFI or the marital estate if an expert had not been appointed. See [CITATION].
{¶45} William also suggests that Yoho’s appointment was procedurally deficient because the trial court acted sua sponte. However, he does not direct us to any legal authority in support of this contention. To the contrary, our review of the case law indicates that trial courts have appointed experts to appraise assets that were not valued or had disputed values. [CITATION]
Case No. 17-23-14
43 (2d Dist.); [CITATION], *2-3 (5th Dist. Dec. 18,
1990); [CITATION], *1 (9th Dist. Nov. 12, 1997); [CITATION],
1995 WL 311721, *1 (11th Dist. Apr. 7, 1995); [CITATION],
*1 (12th Dist. Apr. 19, 1991).
{¶46} Finally, the trial court noted that the docket contained no indication
that William objected after the magistrate issued an order appointing an expert.
(Doc. 355). At the final hearing, William also did not object to Yoho testifying, her
qualifications as an expert, or the admission of her report. See [CITATION],
2005-Ohio-4493, ¶ 51 (2d Dist.). For these reasons, we conclude that William has
not demonstrated that the trial court erred in appointing Yoho. The first argument
is without merit.
{¶47} Second, William argues that AFI’s valuation was not current because
Yoho’s appraisal determined the company’s value as of September 30, 2019.
‘Valuations of the marital property must be determined as to a specific
date.’ [CITATION].
‘Generally, a domestic relations court should use the same set of dates
in valuing marital property. However, in certain instances there may
be an equitable reason for selecting a different date on which to value
different marital assets. In choosing a different valuation date for
certain assets, the court must adequately explain its reasons for doing
so.’ [CITATION].
Case No. 17-23-14
Mousa, supra, at ¶ 23. We review challenges to a valuation date for an asset under
an abuse of discretion standard. Novak, supra, at ¶ 18. See also [CITATION]
{¶48} In this case, Yoho’s report concluded that AFI had a value of
$4,836,000.00 as of September 30, 2019. Yoho testified that her report used this
valuation date because 2019 was the last year in which AFI had filed a tax return.
She further testified that she was informed by AFI’s accountant that its “financial
information was not up to date, it was not reconciled, it was not accurate, that [she]
* * * could not rely on it, that he could not prepare a tax return at this time.” (Tr.
26). For this reason, she stated AFI did not have enough financial information “to
do an evaluation [that was] more current.” (Tr. 42).
{¶49} Further, Elsner confirmed that AFI had not filed a tax return since
September of 2019 and said that accurate records from after this point could not be
“easily produce[d].” (Tr. 315). The trial court also noted that William did not
“offer[] any other date that was possible from the evidence.” (Doc. 335). See also
[CITATION]. Having examined the record,
we find no indication that the trial court abused its discretion in using this valuation
date. The second argument is without merit.
{¶50} Third, William argues that Yoho’s valuation of AFI relied on
incomplete information. However, Elsner testified that, to obtain complete financial
records for AFI, the accountants would essentially “have to start over” and would
Case No. 17-23-14
have to “reenter every transaction.” (Tr. 350, 351). He stated that this process
would be “way expensive” and “quite time consuming.” (Tr. 351). Elsner also
indicated that some of the company’s information was “no longer accessible” and
that the available records were not aligning with AFI’s general ledger. (Tr. 356).
William’s statements confirmed many of these issues by detailing the problems that
several bookkeepers had caused in this timeframe.
{¶51} William further argues that Yoho should have incorporated a draft of
AFI’s 2020 tax returns in her analysis. However, Elsner’s testimony does not
suggest that this draft was finalized or ready to file. Yoho testified that she asked
for additional information that detailed the company’s finances beyond 2019 but
was informed by AFI’s accountant that she could not “rely on the financial
information that he could produce from the company because it wasn’t reconciled
and it wasn’t correct.” (Tr. 27). She stated that she used the most recent information
that Elsner had represented as reliable.
{¶52} William also asserts that Yoho’s valuation was deficient because she
did not conduct a site visit. However, he has not raised an argument that would
suggest that a site visit was a necessary component of determining AFI’s value. At
the final hearing, Yoho presented a detailed report that described the financial
information, methodology, and assumptions that went into determining the fair
market value of AFI. She then testified extensively at trial about the process that
was used to determine the value of the company. Given the testimony about the
Case No. 17-23-14
reliability of AFI’s financial records after 2019, we conclude that this argument fails
to establish that the valuation assigned to AFI is against the manifest weight of the
evidence. The third argument is without merit.
{¶53} Fourth, William argues that the valuation of AFI did not account for
all of the company’s liabilities. However, he has not identified any evidence in the
record that could establish that AFI had liabilities that the trial court or Yoho
disregarded in determining the value of the company. At the final hearing, he
admitted that he did not have any documents that could establish AFI had these
liabilities. The appellant has the “burden to affirmatively demonstrate to the
appellate court that error has occurred in the action of the trial court.” [CITATION], supra,
at *2. In the absence of evidence that AFI had these alleged liabilities, William has
failed to establish that the trial court erred. The fourth argument is without merit.
{¶54} Fifth, William argues that the Yoho did not provide any testimony to
support the valuation of the two real estate holdings of J&B Land. However, Yoho
indicated that her firm relied on figures produced by the Consolidated Appraisal
Services Company (“CASC”). Yoho submitted a detailed report from CASC that
included the methodology and calculations that were used in valuing these assets.
Yoho also submitted copies of the county auditor’s appraisals of these properties.
Both sources valued these two properties at $16,200.00 and $298,420.00. Further,
in a table that detailed his assets, William represented the value of these two real
estate holdings as being $16,200.00 and $298,420.00. We conclude that these
Case No. 17-23-14
valuations are supported by some competent, credible evidence. The fifth argument
is without merit.
{¶55} Sixth, William argues that the trial court erred in classifying 493
Realty Services as marital property. However, the record indicates that this entity
was formed in 2012. Further, all three properties held by this company were
purchased in 2012. Since these real estate holdings were acquired during the
marriage, these assets are presumed to be marital. Additionally, William did not
present any information to establish that these assets were separate property under
R.C. 3105.171(A)(6) or traceable to separate property. For this reason, we conclude
that the trial court’s determination is supported by some competent, credible
evidence. The sixth argument is without merit.
{¶56} Seventh, William argues that the expert’s valuation of 493 Realty
Services’s three real estate holdings was not properly supported by any evidence.
Yoho testified that the total value of the property owned by 493 Realty Services was
$215,000.00. These valuations were provided to Yoho by CASC. A copy of
CASC’s report for these properties was submitted to the trial court. This report
contained detailed descriptions of CASC’s methodology and calculations. Based
on these valuations, the trial court assigned a total value of $215,000.00 to the three
properties owned by 493 Realty Services.
{¶57} On appeal, William points to the fact that Yoho testified that she never
received a balance sheet for 493 Realty Services. For this reason, the value of this
Case No. 17-23-14
[SEGMENT 12]
entity in her report was the equivalent of the real estate it owned. But William
argues that the absence of a balance sheet makes her valuation of this company
incomplete. However, the trial court gave William the opportunity to submit any
additional information that might affect the valuation of the companies in which he
had an interest. He has not identified any records that he submitted that would have
affected these valuations in any way. We conclude that the valuation assigned to
493 Realty Services was supported by some competent, credible evidence. The
seventh argument is without merit. Since all seven arguments raised herein were
meritless, the fifth assignment of error is overruled.
Conclusion
{¶58} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Domestic Relations Division of the Shelby
County Court of Common Pleas is affirmed.
Judgment Affirmed
WALDICK and MILLER, J.J., concur.
/hls
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'bobie-v-bobie', which should be replaced with `[CITATION]`.
[CITE AS `[CITATION]`.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
MIA PORTER, :
Appellee, : CASE NO. CA2023-07-086
: OPINION
- vs -
/15/2024
:
DORSEY PORTER, :
Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR21 06 0457
Muhammad Hamidullah, for appellee.
Victor Dwayne Sims, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Dorsey Porter ("Husband"), appeals from the final divorce decree
issued by the Butler County Court of Common Pleas, Domestic Relations Division,
terminating his marriage to Mia Porter ("Wife"). For the reasons outlined below, we affirm.
Facts and Procedural History
{¶ 2} On February 14, 2005, Husband and Wife were married in Butler County,
Ohio. There were no children born issue of the marriage. Husband is a skilled specialized Butler CA2023-07-086
mechanic who, prior to the COVID-19 pandemic, had been employed by Lamborghini car
dealerships throughout the country. This includes positions in Florida, Missouri, New
York, and Virginia. Wife moved with Husband to each of those four states and secured
employment for herself each time earning an annual salary of just over $39,000. 1
Husband has since gained employment with American Airlines in California where in both
2020 and 2021 Husband received an annual salary of approximately $82,000.
{¶ 3} On June 8, 2021, after more than 16 years of marriage, Wife filed for divorce
from Husband. Wife did this based on Husband's alleged gross neglect of duty and her
and Husband's purported incompatibility. Husband filed an answer and counterclaim for
divorce from Wife on September 23, 2021.
{¶ 4} On December 12, 2022, the domestic relations court held a final divorce
hearing. There is no dispute that on the date of the final divorce hearing Husband was
51 years old and living in the San Francisco, California area, whereas Wife was 44 years
old and living in Middletown, Ohio.2 The domestic relations court heard testimony from
both Husband and Wife during the final divorce hearing. Husband and Wife also
introduced several exhibits for the domestic relations court's consideration. This included
both Husband's and Wife's affidavits of their anticipated monthly expenses, wherein
Husband claimed his anticipated expenses living in California were $3,000 a month, while
Wife claimed her anticipated monthly living expenses in Ohio were $2,600 per month.
{¶ 5} On January 31, 2023, the domestic relations court issued a decision
granting Husband and Wife a divorce on the grounds of incompatibility. In so doing, the
1. The record indicates that Wife is also employed as a singer and performer. However, neither Husband
nor Wife provided any evidence regarding the amount of income, if any, that Wife earned from singing
and/or performing.
2. The record indicates that Husband lives in Mountain View, California, a city located in the area between
San Francisco and San Jose.
Butler CA2023-07-086
domestic relations court determined that the proper termination date of the marriage was
the date that the final divorce hearing took place, December 12, 2022. This resulted in
the domestic relations court awarding Wife one-half the marital portion of Husband's
401(K) earned during the marriage while Husband was employed with American Airlines.3
The domestic relations court also ordered Husband to pay Wife spousal support in the
amount of $900 per month for a period of five years.4 The domestic relations court
determined that this spousal support award was appropriate and reasonable given "the
age of the parties, the 17 year marriage; the disparity of income; the property division
herein; the tax consequences for Husband and Wife; the disparity in earning potential of
the parties; [and] the parties' good standard of living during the marriage."
Husband's Appeal and Two Assignments of Error
{¶ 6} On June 29, 2023, the domestic relations court issued judgment entry and
final decree of divorce, thereby completing Husband's and Wife's separation. The
following month, on July 27, 2023, Husband filed a notice of appeal from the domestic
relations court's final divorce decree. Oral argument was thereafter had before this court
on March 4, 2024. Husband's appeal now properly before this court for decision,
Husband has raised two assignments of error for review.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
FAILED TO SELECT A MARRIAGE TERMINATION DATE.
{¶ 9} In his first assignment of error, Husband argues the domestic relations court
erred by using the date of the final divorce hearing, December 12, 2022, as the de facto
3. This amounted to Wife receiving approximately $11,000 from Husband's 401(K) with American Airlines.
4 This would result in Husband paying Wife a total of $10,800 in spousal support annually, or $54,000 at
the end of five years, assuming Wife did not pass away, remarry, or cohabitate with another individual during
that time.
Butler CA2023-07-086
termination date of his and Wife's marriage for property division purposes. We disagree.
{¶ 10} "Generally, the proper date for the termination of a marriage, for purposes
of property division, is the date of the final divorce hearing." [CITATION], ¶ 20, citing [CITATION], ¶ 8. This is a "statutory presumption"
that is set forth under R.C. 3105.171(A)(2)(a). [CITATION], ¶ 24. Specifically, pursuant to R.C.
3105.171(A)(2)(a), the term "during the marriage" means "the period of time from the date
of the marriage through the date of the final hearing in an action for divorce or in an action
for legal separation."
{¶ 11} "However, pursuant to R.C. 3105.171(A)(2)(b), if the domestic relations
court finds the time period between the date of the marriage and the date of the final
divorce hearing would be 'inequitable,' the domestic relations court may select dates that
it considers equitable in determining marital property." [CITATION], ¶ 30. To do this, the domestic relations
court need not make an explicit "equitable" or "inequitable" finding. [CITATION], ¶ 51. Rather, based on the plain
language of the statute, the domestic relations court is merely required to "select dates
that it considers equitable in determining marital property" if the court determines that
using either the date of the marriage or the date of the final divorce hearing "would be
inequitable." Id.
{¶ 12} Because the domestic relations court has broad discretion to select dates it
considers equitable, and because a domestic relations court's determination of the
termination date of a marriage is largely a question of fact, this court will not disturb the
domestic relations court's decision setting the termination date of a marriage absent an
Butler CA2023-07-086
abuse of discretion. [CITATION] "The abuse of discretion standard is based upon
the principle that a trial court must have the discretion in domestic relations matters to do
what is equitable given the facts and circumstances of each case." [CITATION] This is why "[a]n abuse of discretion constitutes more than an error of law or
judgment; it requires a finding that the [domestic relations] court acted unreasonably,
arbitrarily or unconscionably." [CITATION]
{¶ 13} "The vast majority of cases in which an abuse of discretion is asserted
involve claims that the decision is unreasonable." [CITATION] "A decision is unreasonable where it is not
[SEGMENT 13]
supported by a sound reasoning process." [CITATION] "An arbitrary decision is one that lacks adequate
determining principle and is not governed by any fixed rules or standard." [CITATION] "[A]n
unconscionable decision is one that affronts the sense of justice, decency, or
reasonableness." [CITATION]
{¶ 14} As noted above, Husband argues the domestic relations court erred by
using the date of the final divorce hearing, December 12, 2022, as the de facto termination
date of his and Wife's marriage for property division purposes. This is because, according
to Husband, he and Wife "began living separate and apart" over two years earlier, in
February of 2019, when he moved from Virginia to California and began working for
American Airlines, and "[t]here is no evidence that the parties ever lived together again
Butler CA2023-07-086
or reconciled in any way," either "financially" or "physically."5 However, as a simple review
of the record reveals, Husband never argued or moved the domestic relations court to
use a date other than the date on which the final divorce hearing took place as the de
facto termination date of his and Wife's marriage.
{¶ 15} The record also indicates that Husband's move from Virginia to California
was never intended to be permanent. The record instead indicates that Husband's move
to California was supposed to be temporary relocation for work that was to last only a few
months before both he and Wife moved to Ohio so that Wife could be closer to her ailing
father. Under these circumstances, particularly when considering Husband never offered
the domestic relations court any other alternative date, we find no error in the domestic
relations court using the date of the final divorce hearing, December 12, 2022, as the de
facto termination date of the marriage for property division purposes. Accordingly, finding
no error in the domestic relations court's decision, Husband's first assignment of error
lacks merit and is overruled.
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
SPOUSAL SUPPORT.
{¶ 18} In his second assignment of error, Husband argues the domestic relations
court erred by ordering him to pay Wife monthly spousal support in the amount of $900
for a period of five years. We disagree.
{¶ 19} In divorce proceedings, after the domestic relations court determines the
division or disbursement of property, the domestic relations court "may award 'reasonable
spousal support' to either party." [CITATION]
5. We note that, in his answer to Wife's complaint for divorce, Husband claimed that he moved to California
in 2016, rather than in 2019, as he alleges in his appellate brief.
Butler CA2023-07-086
107, 2023-Ohio-2015, ¶ 36, quoting R.C. 3105.18(B). "In determining whether spousal
support is appropriate and reasonable, the [domestic relations] court has a statutory duty
to base its spousal support order on a careful and full balancing of the factors in R.C.
3105.18(C)(1)." [CITATION] 2018-Ohio-2144, ¶ 40. "R.C. 3105.18(C)(1) contains 14 factors that the
[domestic relations] court must consider in determining if spousal support is appropriate."
[CITATION] 2013-Ohio-4329, ¶ 40.
{¶ 20} These 14 factors include, but are not limited to, the income of the parties,
the relative earning abilities of the parties, the retirement benefits of the parties, the ages
and physical, mental, and emotional conditions of the parties, the duration of marriage,
the standard of living of the parties established during the marriage, the relative extent of
education of parties, and the relative assets and liabilities of the parties. R.C.
3105.18(C)(1)(a), (b), (c), (d), (e), (g), (h), and (i). "A reviewing court will presume each
factor was considered, absent evidence to the contrary." [CITATION] This court "will not disturb a spousal support
award on appeal absent an abuse of discretion." [CITATION] 2017-Ohio-7463, ¶ 24. As noted above, an abuse of discretion "requires
a finding that the [domestic relations] court acted unreasonably, arbitrarily or
unconscionably." [CITATION] 2011-Ohio-6345 at ¶ 15, citing [CITATION] 5 Ohio St.3d at 219.
{¶ 21} Rather than challenging the amount or duration of the spousal support
award the domestic relations court afforded to Wife, Husband argues it was error for the
domestic relations court to order him to pay any spousal support to Wife at all. To support
this claim, Husband argues that ordering him to pay Wife spousal support is not
appropriate in this case when considering the cost of living for a single person in the San
Butler CA2023-07-086
Francisco area where he lives is much greater than the cost of living for a single person
in Middletown where Wife lives. Therefore, according to Husband, ordering him to pay
Wife spousal support under these circumstances "provides ample funds for wife to work
and live and strips husband of that ability" and is akin to stealing away his "livelihood"
while at the same time creating "a bonus for wife based on income created by husband
after the parties stopped living together or sharing financial obligations," and is
tantamount to a "taking" of his hard-earned money and leaving him "in poverty while
enhancing Wife's lifestyle resulting in an unjust and inequitable outcome."
{¶ 22} However, while the cost of living between the San Francisco area and
Middletown may very well be different, maybe even drastically so, given the record in this
case, the domestic relations court found Wife's anticipated monthly expenses in Ohio
were $2,600, whereas Husband's anticipated living expenses in California were just $400
more at $3,000. The domestic relations court made this finding based upon Husband's
and Wife's own affidavits wherein they each set forth the monthly expenses they expected
to pay once their divorce was finalized. Under these circumstances, and when
considering Husband's and Wife's ages, the duration of Husband and Wife's marriage,
and the disparity in Husband's and Wife's respective incomes, the domestic relations
court did not err by ordering Husband to pay Wife monthly spousal support in the amount
of $900 for a period of five years.[CITATION] Accordingly, Husband's second assignment of error
also lacks merit and is overruled.
Conclusion
{¶ 23} For the reasons outlined above, and finding no merit to either of Husband's
[CITATION]
Butler CA2023-07-086
two assignments of error raised herein, Husband's appeal from the domestic relations
court's final divorce decree is denied.
{¶ 24} Judgment affirmed.
PIPER and BYRNE, JJ., concur.
[CITATION]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BRIAN EHRMANTROUT JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Andrew J. King, J.
-vs-
Case No. 2023 AP 03 0021
KATE EHRMANTROUT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court
of Common Pleas, Domestic Relations
Division, Case No. 2021 TC 09 0295
JUDGMENT: Affirmed in part; Reversed in part; and
Remanded
DATE OF JUDGMENT ENTRY: April 5, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID C. HIPP DAN GUINN
P.O. Box 90
W. Third Street
New Philadelphia, Ohio 44663 Dover, Ohio 44622 Tuscarawas County, Case No. 2023 AP 03 0021
Hoffman, P.J.
{¶1} Defendant-appellant Kate E. Ehrmantrout (“Wife”) appeals the March 3,
2023 Judgment Entry entered by the Tuscarawas County Court of Common Pleas,
Domestic Relations Division, which granted Wife and plaintiff-appellee Brian V.
Ehrmantrout (“Husband”) a divorce, divided the parties’ marital debts and assets, and
allocated their parental rights and responsibilities.
STATEMENT OF THE FACTS AND CASE
{¶2} Husband and Wife were married on August 29, 2009, in Wooster, Ohio.
The parties have three (3) minor children, one of whom was born prior to the marriage.
Paternity was established by birth certificate. The other two (2) children were born during
the marriage. The parties separated in September, 2018.
{¶3} On September 17, 2021, Husband filed a Complaint for Divorce. Wife filed
a pro se Answer on October 21, 2021.[CITATION] Via Magistrate’s Order filed October 25, 2021,
[SEGMENT 14]
the magistrate named Wife the temporary residential parent and legal custodian of the
children, granted Husband standard parenting time, ordered the parties to file proposed
child support calculations, and, in lieu of temporary spousal support, ordered Husband to
pay all outstanding medical bills of the parties and make the monthly payments on the
Bank of America credit card. After the child support computation worksheet was filed, the
magistrate ordered Husband to pay child support in accordance with the worksheet.
{¶4} The parties engaged in mediation, but were unable to reach an agreement.
On July 13, 2022, after learning about an incident of domestic violence between Wife and
her paramour, Husband filed a motion requesting the appointment of a guardian ad litem
[CITATION] Tuscarawas County, Case No. 2023 AP 03 0021
(“GAL”) for the children on July 13, 2022. The trial court appointed Attorney Monica
DeRamus as GAL for the children. Husband was ordered to pay the initial deposit of
$1,500.00, to the GAL.
{¶5} The trial court conducted a final hearing on October 13, 2022.
{¶6} Husband began his case-in-chief by calling Wife on cross-examination.
Wife testified she is employed with Farmers National Bank as a bank teller and earns
$13.95/hour. Wife resides with the children in a home owned by her parents. With
respect to the Bank of America credit card, Wife indicated the account was in her name
only and the account was currently over the credit limit of $16,000. Wife stated the Bank
of America credit card was opened around 2013, when the parties resided in Florida.
Wife acknowledged she continued to use the Bank of America credit card after the parties
separated, but could not provide an estimate of how much of the $16,000 debt was
incurred after the separation. Wife explained she used the Bank of America credit card
for daily living expenses for herself and the children, including using it to pay bills and to
purchase clothing.
{¶7} With respect to the parties’ other credit cards, Wife testified the balance on
the Capital One Walmart credit card was approximately $4200.00, the balance on the Bell
credit card was $45.00, and the balance on the Discover Card was approximately
$9,730.00. Wife continued to use the Capital One Walmart credit card, the Bell credit
card, and the Discover Card after the parties’ separation. Other than a Kohl’s credit card,
which was opened in 2011, Wife indicated all of the credit cards were opened when the
parties lived in Florida and were in her name only.
---------------------------------------------------------------------- Tuscarawas County, Case No. 2023 AP 03 0021
{¶8} Wife testified she had been dating an individual by the name of Christopher
Durachinski, but stopped seeing him after he was arrested in February, 2022, “[b]ecause
he was violent towards me.” [CITATION] at p. 10. Wife
obtained a civil protection order (“CPO”) after the incident. Wife was subpoenaed to
appear at Durachinski’s trial on the charges, but refused to appear to testify against him,
explaining, “I did not appear, but I got a CPO and after I got the CPO I told victim
assistance that I couldn’t handle it anymore, it was emotionally draining. So, I got what I
needed to get, and I left it at that.” [CITATION] at p. 11. When asked if her children were present
during the incident, Wife stated they were upstairs. Wife initially could not recall if there
were other instances of physical confrontations with Durachinski, but then replied,
“Physically no, maybe words.” [CITATION] Wife stated she and Durachinski were in a relationship
less than a year.
{¶9} Wife was asked about the parties’ joint bank account with Bank of America.
Counsel for Husband introduced Plaintiff’s Exhibit A, which was a Bank of America bank
statement. The statement showed the following transfers from the account to
Durachinski: August 31, 2021, for $999.98; August 31, 2021, for $1,300.00; September
1, 2021, for $700.00; and September 2, 2021, for $1,500.00. Wife stated she did not owe
any money to Durachinski. Wife could not recall if the money was from the parties’ joint
tax refund. Wife stated she “[m]ost definitely” made the transfers to Durachinski. [CITATION] at p.
14. Wife explained she transferred the money to Durachinski so she could open her own
separate account. Wife added Husband also was taking money out of the Bank of
America account, and, as a result, the account fell below the required minimum and was
assessed monthly maintenance fees, which she paid. Wife could not recall if Husband Tuscarawas County, Case No. 2023 AP 03 0021
had his paychecks deposited into the Bank of America account after the parties’
separation. Wife indicated she deposited the Federal stimulus checks issued to herself,
Husband, and the children into the joint bank account, but did not know if Husband
withdrew any of those funds.
{¶10} Husband testified he was employed full-time as a line operator for ProVia,
and earns $17.50/hour. Husband maintains health insurance for himself and the children
through his employer. With respect to the children, Husband stated he sees the two older
children on a regular schedule. However, Husband noted his parenting time with the
parties’ youngest child, who has cerebral palsy and is also epileptic, was irregular.
Husband indicated the youngest child has significant needs, but he was able to meet all
of her needs and provide appropriate care. Husband detailed his parenting time with the
children and discussed the activities in which the older two children are involved.
Husband testified the older two children told him about the domestic violence between
Wife and Durachinski and Durachinski’s arrest. The two older children were present
during the altercation. Husband contacted Wayne County Sheriff’s Office, which
conducted a welfare check. Husband recalled, when he spoke to Wife that evening, her
speech was slurred and she was under the influence of alcohol. Husband stated Wife
had an on-going problem with alcohol.
{¶11} With respect to the Bank of America bank account, Husband testified while
the parties were still together his paycheck, Wife’s paycheck, and the youngest child’s
social security disability check were deposited into the account. Husband noted his
paycheck continued to be deposited into the Bank of America bank account for a period
of time after the parties separated. Husband stated the last time he used the bank Tuscarawas County, Case No. 2023 AP 03 0021
account on a regular basis was in 2019. When Husband asked Wife about the multiple
transfers to Durachinski, Wife told him she was afraid he (Husband) would take the
money. Husband withdrew $200.00, at some point, which drained the account. Husband
indicated Wife wrote him a check for the federal stimulus checks issued to him. With
respect to the credit cards, Husband indicated he did not use any of the credit cards after
the parties’ separation in 2018.
{¶12} On cross-examination, Husband stated he worked at Pepsi Beverage
Company until October, 2021, and was earning approximately $19.75/hour. Husband
acknowledged although he was ordered to pay the Bank of America credit card, he only
made two payments on the account. Husband testified he has been consistent in paying
with his child support obligation.
{¶13} On direct, Wife indicated she would like to be restored to her former name
of “Jones.” Wife explained she and Husband do not own any real property and they had
previously divided their personal property. Wife wished to keep the Bank of America bank
account and a Farmers National Bank account, both of which were in her name only. The
parties have joint checking and joint savings accounts with Bank of America. The joint
savings account was charged a monthly maintenance fee which, according to Wife,
began after Husband withdrew $200.00, and brought the account below the required
balance. Wife did not have a retirement account. Husband had a retirement account
through his former employer, Pepsi Beverage Company. Wife believed she was entitled
to a portion of any current 401(k) Husband might have. Wife wanted Husband to pay the
balances on the Bank of America credit card and the Discover Card, as well as the
outstanding medical bills. Tuscarawas County, Case No. 2023 AP 03 0021
{¶14} Wife was unable to work full-time due to the needs of the parties’ youngest
child. Wife expressed her desire to be named the legal custodian and residential parent
of the parties’ children. Wife did not feel comfortable with the youngest child being at
Husband’s residence multiple nights in a row, adding “[e]very time [the child] is over there
something happens.” [CITATION] at p. 58. Wife discussed the older two children, their extra-
curricular activities, and their individual educational needs. Wife made clear she paid for
all of the children’s extra-curricular activities. Wife detailed the daily care she provides to
the youngest child, which includes tube feeding the child five times per day and giving her
numerous prescription medications each day. Wife asserted Husband did not attend
medical or school appointments even though she advised him of the same.
[SEGMENT 15]
{¶15} With respect to the money transferred to Durachinski, Wife explained she
transferred the money to him in order to open a bank account in her name only. Wife
also claimed Husband was attempting to blackmail her into signing a dissolution, which
she did not believe was equitable, and she believed he would withdraw the money from
the joint account. Wife indicated Durachinski transferred the money back to her and she
used it to pay bills. Wife adamantly denied the money went to Durachinski.
{¶16} On cross-examination, Wife admitted she was charged with DUI in January,
2020. Wife also admitted she filed a tax return, claiming all three children, despite a court
order prohibiting her from doing so. Wife received a tax refund of $15,000.00, which she
used for rent, gas, car repairs, extra-curricular activities, and the revolving balances on
the credit cards.
{¶17} At the close of evidence, the trial court advised the parties they could submit
Proposed Findings of Fact and Conclusions of Law, if desired. The parties requested the Tuscarawas County, Case No. 2023 AP 03 0021
trial court conduct an in-camera interview with the two older children in the presence of
the GAL. The interview was scheduled for November 15, 2022.
{¶18} Wife filed Proposed Findings of Fact, Conclusions of Law on November 7,
2022. Husband filed his Final Argument as well as his Proposed Judgment Entry on
November 14, 2022. Wife filed a response to Husband’s Final Argument on December
30, 2022. On January 12, 2023, the GAL filed a Guardian ad Litem’s Notice of Filing Final
Bill, showing an outstanding balance of $352.50, and noting each party was responsible
for $176.25. Via Judgment/Entry filed the same day, the parties were ordered to pay the
GAL fees as follows: Husband - $176.25; and Wife - $176.25.
{¶19} Via Judgment Entry filed March 3, 2023, the trial court granted the parties
a divorce on the grounds of incompatibility and living separate and apart for more than
one (1) year. The trial court ordered Husband to make all monthly payments on the Bank
of America credit card he had been previously ordered to make, and Wife be responsible
for the remaining balance. With respect to the parties’ additional revolving credit
cards/accounts, the trial court held the parties responsible for their respective debt. The
trial court found an award of spousal support was not appropriate as Wife engaged in
“secretive and prejudicial financial misconduct.” [CITATION]
The trial court ordered the parties to pay the GAL expenses 65% Husband/35% Wife.
The trial court ordered Husband’s pension benefits from ProVia be divided by QDRO, and
ordered Wife to pay for an evaluation and preparation of the QDRO. The trial court named
Mother the legal custodian and residential parent of the parties’ youngest child, and
Husband the legal custodian and residential parent of the two older children. The trial
court did not award child support, but ordered the parties’ split the cost of the children’s Tuscarawas County, Case No. 2023 AP 03 0021
activities 65% Husband/35% Wife. The trial court divided court costs equally between
Husband and Wife.
{¶20} It is from this judgment entry Wife appeals, raising the following
assignments of error:
I. THE COURT ERRED WITH REGARDS TO THE ALLOCATION
OF THE BANK OF AMERICA CREDIT CARD DEBT.
II. THE COURT ERRED WITH REGARDS [TO] THE ALLOCATION
OF DEBTS OTHER THAN THE BANK OF AMERICA CREDIT CARD.
III. THE COURT ERRED IN DETERMINING THAT THE
APPELLANT COMMITTED FINANCIAL MISCONDUCT.
IV. THE COURT ERRED IN NOT RESTORING THE APPELLANT
TO HER FORMER NAME.
V. THE COURT ERRED IN DETERMINING THAT THE PARTIES
SHOULD SPLIT THE GUARDIAN AD LITEM FEES.
VI. THE COURT ERRED IN ORDERING THE APPELLANT TO PAY
THE ENTIRE COST ASSOCIATED WITH THE PREPARATION OF THE
QDRO TO DIVIDE THE MARITAL PORTION OF THE APPELLEE’S
PENSION
VII. THE COURT ERRED IN ORDERING BOTH PARTIES TO PAY
THE COURT COSTS EQUALLY. Tuscarawas County, Case No. 2023 AP 03 0021
I
{¶21} In her first assignment of error, Wife submits the trial court erred and abused
its discretion in allocating the entire Bank of America credit card to her.
{¶22} R.C. 3105.171 (B) provides:
In divorce proceedings, the court shall * * * determine what
constitutes marital property and what constitutes separate property. In
either case, upon making such a determination, the court shall divide the
marital and separate property equitably between the spouses, in
accordance with this section. For purposes of this section, the court has
jurisdiction over all property, excluding the social security benefits of a
spouse other than as set forth in division (F)(9) of this section, in which one
or both spouses have an interest. R.C. 3105.171(B).
{¶23} “Although the allocation of debt is not specifically addressed by the statute,
the division of property also includes marital debt.” [CITATION], ¶ 6. (Citations omitted); See, also, [CITATION], ¶ 24 (Debts, like assets,
are considered property.). Consequently, orders assigning debt to one party or another
are part of the property division. [CITATION], ¶ 41 (“Since the court, pursuant to R.C.
3105.171(F)(2), must consider both the parties’ assets and liabilities, ‘an equitable
division of marital property necessarily implicates an equitable division of marital debt.’ ”). Tuscarawas County, Case No. 2023 AP 03 0021
{¶24} “A trial court's allocation of marital debt will not be reversed absent an abuse
of discretion.” [CITATION], ¶ 41. “We may modify or reverse the court's decision only for abuse of discretion.”
[CITATION], ¶ 13, citing [CITATION].
An abuse of discretion “implies that the court's attitude is unreasonable, arbitrary or unconscionable.” [CITATION],
{¶25} Specifically, Wife contends the trial court’s finding “most of the $16,000.00
balance for [the Bank of America credit card] this was incurred by the Wife after the
separation” was erroneous. Brief of Appellant at p. 20. Wife continues:
The problem is that the evidence did not show that. No evidence or
testimony was shown which proved what the balance for this was prior to
the parties' separation. Moreover, no evidence was shown with regards to
what balance the Wife charged on the credit card. Thus, there was no way
for the Court to determine this and it abused its discretion in making that
finding in Paragraph 14.2
Id.
2 Paragraph 14 provides: "The parties also have a Bank of America credit card in both their names when
they lived together in Florida which has a balance of over $16,000 at the time of trial. Mother acknowledges
that this sum arose mostly from charges she made for the home and the children's needs after the parties
separated." March 3, 2023 Judgment Entry. Tuscarawas County, Case No. 2023 AP 03 0021
{¶26} Wife further argues the trial court abused its discretion in failing to allocate
all of the Bank of America credit card debt to Husband or, alternatively, divide the debt
proportionately to what each party earns, i.e., 65% to Husband, 35% to Wife.
{¶27} The record before this Court reveals the balance on the Bank of America
credit card was over $16,000.00, on October 25, 2021, when part of its temporary orders,
the magistrate ordered Husband to make monthly payments on the credit card. Neither
Husband nor Wife presented any testimony or evidence establishing the balance of the
credit card at the time the parties separated in September, 2018. At the time of the final
hearing, the balance remained over $16,000.00. Wife testified she used the credit card
for daily living expenses. Wife did not provide any documentation to establish the amount
she charged during the period between the magistrate’s October 25, 2021 order and the
final hearing. Husband admitted he only made two monthly payments, and, the trial court,
in its March 3, 2023 Judgment Entry, ordered Husband to pay all of the monthly payments
he failed to make.
{¶28} Because Wife had exclusive use of the Bank of America credit card
following the parties’ separation in 2018, and in the absence of any testimony or evidence
establishing the balance of the credit card at the time the parties separated in September,
2018, we find the trial court did not abuse its discretion in allocating the remainder of the
Bank of America credit card debt after Husband pays the amounts he was order to pay
under the magistrate’s temporary orders.
{¶29} Wife’s first assignment of error is overruled. Tuscarawas County, Case No. 2023 AP 03 0021
[SEGMENT 16]
II
{¶30} In her second assignment of error, Wife argues the trial court erred in its
allocation of the other credit card debt.
{¶31} In its March 3, 2023 Judgment Entry, the trial court made the following
findings:
Findings of Fact 10-"These parties have incurred substantial marital
debt from the beginning to this day including since the parties' separation.”
Findings of Fact 16-"The parties have other credit cards and
consumer debt including Capital One, Walmart, Bell's, and a Discover
Card."
Findings of Fact 17-"Both parties have played a role in creating their
oppressive debt."
{¶32} Based upon these findings, the trial court ordered:
Decision and Orders Paragraph 4-"Each Party shall pay and hold the
other Party harmless on any other revolving credit cards/accounts including
Capital One, Walmart, Bell's and a Discover Card."
{¶33} Wife points out two problems with the trial court’s order. First, Wife submits,
because the balances on the credit cards are marital debt, such debt “should, at the very
least, be divided equally between the parties.” Brief of Appellant at p. 21. Wife explains, Tuscarawas County, Case No. 2023 AP 03 0021
although the trial court ordered each party pay and hold the other party harmless, the
order is unclear as to “who is to pay what debt.” [CITATION] We agree with Wife as to the ambiguity
of the trial court’s order. We find the trial court erred in failing to specify which party was
responsible for which credit card debt and in what amount.
{¶34} Next, Wife states the trial court’s order is not supported by the evidence. As
stated, supra, the trial court found the parties’ “credit cards and consumer debt [included]
Capital One, Walmart, Bell's, and a Discover Card.” March 3, 2023 Judgment Entry,
Finding of Fact 16. Wife explains, and the evidence presented at the final hearing
established, the parties had a Capital One Walmart credit card, not separate Capital One
and Walmart credit cards.
{¶35} Based upon the foregoing, we reverse the trial court’s allocation of the
remaining credit card debt and remand the matter to the trial court to clarify the order.
{¶36} Wife’s second assignment of error is sustained.
III
{¶37} In her third assignment of error, Wife submits the trial court erred in finding
she had engaged in financial misconduct.
{¶38} “An appellate court employs the manifest-weight-of-the-evidence standard
when reviewing a trial court's determination that a party engaged in financial misconduct.”
[CITATION], ¶ 78, citing [CITATION], ¶ 14.
The reviewing court weighs the evidence and all reasonable inferences, considers the
credibility of witnesses, and determines whether in resolving conflicts in the evidence, the
finder of fact “clearly lost its way and created such a manifest miscarriage of justice that Tuscarawas County, Case No. 2023 AP 03 0021
the [judgment] must be reversed and a new trial ordered.” [CITATION].
{¶39} R.C. 3105.171(E)(4) provides:
If a spouse has engaged in financial misconduct, including, but not
limited to, the dissipation, destruction, concealment, nondisclosure, or
fraudulent disposition of assets, the court may compensate the offended
spouse with a distributive award or with a greater award of marital property.
R.C. 3105.171(E)(4).
{¶40} “The financial misconduct statute should apply only if the spouse engaged
in some type of wrongdoing (i.e., wrongful scienter).” [CITATION] (Citation and internal quotations omitted).
“Typically, the offending spouse will either profit from the misconduct or intentionally
defeat the other spouse's distribution of marital assets. * * * Financial misconduct involves
some element of profit or interference with another's property rights.” [CITATION] (Citations and
internal quotations omitted.) “The court does not have to find malicious intent; it need
only find that a spouse has engaged in knowing wrongdoing.” [CITATION] (Citation and internal
quotations omitted).
{¶41} The testimony at the final hearing established, and the trial court found, Wife
kept the entire amount of the parties’ joint 2020 tax return.3 In addition, Wife admitted
3 In her Brief to this Court, Wife states “the tax refund was not $11,000.00 as the Court found but much less
based upon the Husband's testimony” Brief of Appellant at p. 25. Husband testified the 2020 tax refund
was approximately $5,600.00. Tr. at p. 34. We find the trial court incorrectly noted the amount of the tax
refund, but such does not change the fact Wife kept the entire refund. Tuscarawas County, Case No. 2023 AP 03 0021
she transferred $4,499.99, from the parties’ joint checking account to Durachinski. The
transfers to Durachinski occurred a few months after the 2020 tax refund was directly
deposited into the parties’ Bank of America account.
{¶42} The testimony also established Wife filed a separate tax return in 2022,
claiming all three children as dependents, despite a court order prohibiting her from doing
so. Wife received a tax refund of $15,000.00, which she testified she used for rent, gas,
car repairs, fees for the children’s extra-curricular activities, and payments on the credit
card balances.
{¶43} The trial court’s determination Wife engaged in financial misconduct was
based, in part, on the fact Wife “kept 100% of both Federal Stimulus checks without
sharing with [Husband] or paying on some of her credit card debt.” March 3, 2023
Judgment Entry, Finding of Fact #20. We find this finding is not supported by the
testimony presented at the final hearing. Husband testified Wife wrote him a check for his
share of each of the federal stimulus checks. Nonetheless, even without this erroneous
finding, we find the trial court’s finding Wife engaged in financial misconduct was not
against the manifest weight of the evidence.
{¶44} As the result of Wife’s financial misconduct, the trial court chose not to make
an award of spousal support.
{¶45} A trial court has broad discretion in determining whether an award of
spousal support is proper based on the facts and circumstances of each case.
[CITATION], ¶ 43, citing [CITATION]. As stated, supra, an abuse Tuscarawas County, Case No. 2023 AP 03 0021
of discretion connotes more than an error of law or judgment; it implies the court's attitude
is unreasonable, arbitrary, or unconscionable. [CITATION], supra.
{¶46} Upon review of the entire record in this matter, we find the trial court did not
abuse its discretion in failing to award spousal support.
IV
{¶47} In her fourth assignment of error, Wife contends the trial court erred in failing
to restore her to her former name.
{¶48} Pursuant to R.C. 3105.16, “[w]hen a divorce is granted the court of common
pleas shall, if the person so desires, restore any name that the person had before the
marriage.” Use of the word “shall” demonstrates that this duty is mandatory. [CITATION].
{¶49} At the final hearing in this matter, Wife testified she wished to be restored
to her former name. Tr. at P. 45. The judgment entry is silent on this issue. In light of
Wife's request and pursuant to R.C. 3105.16, we find the trial was required to restore Wife
to her former name and the trial court erred in failing to do so. See, [CITATION].
{¶50} Wife’s fourth assignment of error is well-taken and sustained.
V
{¶51} In her fifth assignment of error, Wife asserts the trial court erred in ordering
the parties split the GAL expenses.
{¶52} Civil Rule 75(B)(2) provides, “* * * the court may * * * appoint a guardian ad
litem and legal counsel, if necessary, for the child and tax the costs.” The trial court has
discretion over the amount of GAL fees, as well as the allocation to either or both of the Tuscarawas County, Case No. 2023 AP 03 0021
parties. [CITATION]. We review a trial court's ruling relative to an award of GAL fees under an abuse
of discretion standard. [CITATION]. An abuse of discretion connotes more than
an error of law or judgment; it implies that the trial court's attitude was unreasonable,
arbitrary or unconscionable. [CITATION].
{¶53} Fees may be allocated based on the parties' litigation success and
economic status. [CITATION]
(Citations omitted). Moreover, it is proper to allocate GAL fees based on which party
caused the work of the GAL. [CITATION].
{¶54} Wife maintains Husband should be responsible for all of the GAL fees as
he requested the appointment of the GAL. Wife adds Husband “could have, and should
have, made this request [sooner] since this case had been pending nearly a year when
[SEGMENT 17]
he decided to file this motion,” but “for some unknown reason the Husband decided to
wait until the eve of the final hearing to make this request.” Brief of Appellant at p. 27.
We find Husband’s decision to wait “until the eve of the final hearing” to request a GAL
was not a delay tactic, but the result of newly obtained information.
{¶55} Husband filed a Motion for Court Interview of Minor Children and
Appointment of Guardian ad Litem on July 13, 2022, after he learned about an incident
of domestic violence involving Wife and Durachinski. In his affidavit in support of his Tuscarawas County, Case No. 2023 AP 03 0021
motion, Father averred, inter alia, there had been instances of violence in Wife’s home,
which occurred while the children were present, and, as a result of an incident which
occurred in February, 2022, [CITATION] was charged with domestic violence. Father
further averred the two older children reported these occurrences to him and also
disclosed being subject to physical abuse themselves.
{¶56} As the need for a GAL arose due to instances of violence in Wife’s home,
about which Husband had only recently learned when he requested the appointment of
the GAL, we find the trial court did not abuse its discretion in ordering Wife to pay a
percentage of the GAL fees.
{¶57} Mother’s fifth assignment of error is overruled.
VI
{¶58} In her sixth assignment of error, Wife maintains the trial court erred in
ordering her to pay the entire cost of the preparation of the QDRO.
{¶59} The trial court ordered Husband’s pension benefits through ProVia be
divided by QDRO with the marital portion, defined as his date of employment to the date
of this Judgment Entry, awarded to Wife. The trial court ordered Wife pay for an evaluation
and preparation of the QDRO, as needed.
{¶60} Wife submits, and we agree, Husband's pension is marital property and
should be divided equally. Wife argues the trial court “had no valid justification for making
this order [she pay for all of the costs associated with the preparation of the QDRO] nor
did it state its rational in doing so.” Brief of Appellant at p. 28. In his Brief, Husband states,
“there was no evidence presented that the Husband had any pension benefit plan at
ProVia based upon his barely one year’s employment,” noting, “[i]f there were any such Tuscarawas County, Case No. 2023 AP 03 0021
pension benefits they would certainly be less than the cost of the evaluation and
preparation of a QDRO.” Brief of Appellee at p. 12. Husband concludes the trial court’s
order “seems to be meaningless.” Id.
{¶61} Upon review of the transcript of the final hearing, we find no evidence to
establish Husband has pension benefits with ProVia. Although Wife testified she was
entitled to the marital portion of Husband’s retirement, whatever it may be, she had no
knowledge of whether such benefit existed. While we do not find the trial court’s order
“meaningless,” as Husband suggests, we, nonetheless, find the trial court did not abuse
its discretion in ordering Wife to pay for an evaluation and preparation of the QDRO,
should Wife determine her marital portion of Husband’s pension, if it exists, exceeds the
cost of the preparation of the QDRO.4
{¶62} Wife’s sixth assignment of error is overruled.
VII
{¶63} In her final assignment of error, Wife argues the trial court erred in ordering
court costs be assessed equally.
{¶64} Absent an abuse of discretion, a trial court's decision regarding costs will
not be reversed. [CITATION] As noted above, “[a]n abuse of discretion implies that the trial court's attitude was
unreasonable, arbitrary, or unconscionable.” [CITATION]
4 We further note the trial court did not order Wife to reimburse Husband any portion of the original deposit
of $1,500.00 for the GAL, which Husband paid. Such might well account for allocation of the cost for the
evaluation and preparation of the QDRO to Wife. Tuscarawas County, Case No. 2023 AP 03 0021
{¶65} Wife explains the trial court ordered the parties to pay “various expenses in
proportion to their incomes.” Brief of Appellant at p. 30. Wife continues, although she
requested Husband pay all of the court costs, the trial court ordered the parties to pay the
court costs in equal shares. Wife suggests “at the very least these should be split in
proportion to their incomes” and “[t]here is no reason why there should be a difference
when it comes to these costs and other expenses listed.” Id.
{¶66} Wife does not cite any caselaw to support this assertion. Further, Wife has
failed to show how the trial court ordering the parties to pay court costs in equal shares
was unreasonable, arbitrary, or unconscionable. Accordingly, we find no abuse of
discretion.
{¶67} Wife’s seventh assignment of error is overruled.
{¶68} The judgment of the Tuscarawas County Court of Common Pleas, Domestic
Relations Division, is affirmed, in part, and reversed, in part, and remanded to the trial
court to clarify its order relative to the parties’ credit card debt, except for the Bank of
America credit card, and we remand this matter to the trial court to modify the judgment
to restore Wife to her former name of Kate Elizabeth Jones.
By: Hoffman, P.J.
Baldwin, J. and
King, J. concur -----[CITATION]-----
------
[Cite as [CITATION].]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
DANIEL JOWISKI C.A. No. 23CA011939
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LESLIE GUSTAFSON-JOWISKI COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 97DU052353
DECISION AND JOURNAL ENTRY
Dated: January 22, 2024
STEVENSON, Judge.
{¶1} Leslie Gustafson-Jowiski appeals from the judgment of the Lorain County Court of
Common Pleas, Domestic Relations Division, which upheld a magistrate’s decision amending an
original stipulated qualified domestic relations order (“QDRO”). This Court reverses and remands
for further proceedings consistent with this opinion.
I.
{¶2} This is not the first appeal filed by Ms. Gustafson-Jowiski (“Wife”). Wife first
appealed the trial court’s judgment in [CITATION] (“Jowiski I”). This Court summarized the pertinent facts as:
Ms. Gustafson-Jowiski (‘Wife’) and Daniel Jowiski (‘Husband’) married in
, legally separated in 1996, and divorced in 1997. As part of the divorce, the
trial court issued a stipulated qualified domestic relations order (‘QDRO’). In it,
the trial court determined that Wife was entitled to one-half of Husband’s
retirement benefits from the Ford Motor Company for years the parties were
married. Specifically, it stated that: 2
[T]he amount payable to [Wife] shall be the amount otherwise
payable to [Husband] as follows: one-half (1/2) of the fraction the
numerator of which is the number of years [Husband] participated
in said plan while married to [Wife], the denominator of which is
the total number of years [Husband] participates in said plan, times
the benefits to be received.
The QDRO provided that the trial court retained jurisdiction to amend the order to
carry out its terms and intent, and that the trial court ‘specifically reserve[d] the
right to make such Orders as it deems necessary to provide [Wife] with all benefits
to which she is entitled or that are necessary to effectuate the terms of the Plan[.]’
In 2020, Husband filed a ‘Motion to Modify and Clarify Judgment Entry
Regarding [Husband’s] Retirement and Pension’ (‘Motion to Modify’). In it, he
asserted that he worked for Ford for 12 years while the parties were married,
continued to work there after the divorce, and was set to retire after working there
for over 35 years. He asserted that, while he was married to Wife, he did not
actively contribute to his retirement. According to Husband, had he continued to
not actively contribute to his retirement, he would have been entitled to receive
approximately $1,700 per month in retirement benefits from Ford. Husband
asserted that, after the divorce, he began actively contributing to his retirement,
which significantly increased the benefits he was entitled to receive upon his
retirement. According to Husband, as a result of his active contributions, he was
now set to receive approximately $6,400 per month in retirement benefits.
Husband asserted that Ford interpreted the calculation set forth in the
QDRO to mean that Wife was entitled to receive the benefit of Husband’s post-
divorce active contributions to his retirement. He asserted that Wife should instead
receive the amount she would have been entitled to had he not started actively
contributing to his retirement after their divorce. He asserted that Ford’s
interpretation of the QDRO was not consistent with the parties’ intent and requested
that the trial court issue an order modifying and clarifying the language of the
QDRO to effectuate its intent.
[SEGMENT 18]
Wife then moved the trial court for an order allowing QDRO Group, LLC,
a company based in Medina, to evaluate the QDRO to determine the amount of
Husband’s Ford retirement benefits she was entitled to receive. The magistrate
granted Wife’s motion.
The magistrate set the matter for a hearing. On August 19, 2021, Husband,
Husband’s counsel, and Wife’s counsel appeared in person. At Wife’s counsel’s
request, the magistrate called Wife, who lives in Texas. Wife indicated that she
just received documents from Ford, so her counsel requested a continuance to allow
her to review the documents. The magistrate indicated he would grant the
continuance and advised Wife to ensure that she was prepared for trial. * * * That
decision was journalized on the docket on August 23, 2021. * * * 3
On September 7, 2021, the magistrate held a hearing on Husband’s Motion
to Modify. Husband, Husband’s counsel, and Wife’s counsel appeared for the
hearing. Wife did not appear. Despite the fact that Wife had moved for an order
allowing QDRO Group, LLC to evaluate the QDRO, Wife did not procure an expert
report. Instead, Husband retained QDRO Group, LLC to evaluate the QDRO and
prepare a report.
James Myers, Jr., the managing principal of QDRO Group, LLC, testified
as an expert on behalf of Husband. He opined that Wife was entitled to the non-
contributory portion of Husband’s retirement benefits (i.e., the benefit he would
have been entitled to receive had he not started actively contributing to his
retirement), and that the contributory portion (i.e., the benefit he was entitled to
receive as a result of his post-divorce active contributions to his retirement) was
Husband’s separate property. He then testified that, calculating the amount Wife
was entitled to receive based upon the non-contributory portion of Husband’s
retirement benefits, Wife was entitled to receive $287.08 per month.
On cross-examination, Mr. Myers acknowledged that Ford’s interpretation
of the QDRO was technically correct because the QDRO did not distinguish
between contributory and non-contributory portions of Husband’s retirement
benefits. He then testified that the QDRO would need to be amended to account
for the fact that, after the parties divorced, Husband began actively contributing to
his retirement.
One week after the hearing, the magistrate granted Husband’s Motion to
Modify. Consistent with Mr. Myer’s expert opinion, the magistrate found that Wife
was entitled to receive $287.08 per month from Husband’s Ford retirement benefits.
The magistrate indicated that Husband may submit an amended QDRO to
effectuate the intent of his decision.
***
* * * The trial court adopted the magistrate’s decision the same day.
[CITATION] at ¶¶ 1-12. Because Wife failed to pay a contempt of court fine, the trial court did not
consider her objections to the magistrate’s decision. Id. at ¶ 12.
{¶3} Wife maintained in [CITATION], in her second assignment of error, that the trial court
erred by dismissing her objections to the magistrate’s decision. Id. at ¶ 13. This Court agreed and
“remand[ed] the matter for the trial court to consider Wife’s objections to the magistrate’s decision
in the first instance.” Id. at ¶ 17. 4
{¶4} Wife asserted in her first assignment of error that the trial court lacked jurisdiction
to modify the final divorce decree because she did not consent to the modification. In light of this
Court’s ruling on the second assignment of error, it concluded in [CITATION] that Wife’s first
assignment of error was premature. Id. at ¶ 19.
{¶5} On remand, after Wife purged her contempt and after an oral hearing was held on
her objection to the magistrate’s decision, the trial court issued a written decision overruling Wife’s
objection. The trial court found that “that there is no ambiguity as to the provisions of the division
of [Husband’s] retirement benefits pursuant to the parties’ divorce decree dated April 16, 1997.”
The trial court also found that “[t]he parties clearly intended that [Wife] was to receive one-half of
[Husband’s] pension accumulated during the marriage” and that “awarding one-half of
[Husband’s] entire pension past the date of the parties’ legal separation could not be foreseen at
the time of [Husband’s] actual retirement.” (Emphasis sic.)
{¶6} According to the trial court, it was “not modifying the parties’ original divorce
decree[,]” rather, it was “merely facilitating and/or effectuating the parties’ intention at the time of
their divorce.” The trial court “determine[d] that [Wife’s] interest in [Husband’s] pension is one-
half of the amount of [Husband’s] pension that was accumulated during the marriage from January
22, 1982 to July 10, 1996[]” and that “[a]ny subsequent QDRO shall effectuate the parties’ (sic)
to divide [Husband’s] pension pursuant to the parties’ divorce decree in April of 1997.” The trial
court adopted the magistrate’s decision amending the original stipulated QDRO.
{¶7} Wife appeals the trial court’s order, asserting one assignment of error for our
review. 5
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT LACKED [JURISDICTION] TO MODIFY A FINAL
DECREE OF DIVORCE BECAUSE BOTH PARTIES DID NOT CONSENT
TO SAID MODIFICATION.
{¶8} Wife argues that the trial court modified the terms of the final decree of divorce and
that, because she did not consent to the modification, the modification was improper. We agree.
{¶9} The divorce decree states that Wife “shall be entitled to and shall receive an interest
in the pension and retirement benefits of [Husband] with the Ford Motor Company[]” and that
Wife’s interest is:
one-half (1/2) of the fraction the numerator of which is the number of years that the
[Husband] participated in said plan while married to [Wife], the denominator of
which is the total number of years [Husband] participates in said plan, times the
total benefits to be received.
The decree provided for the issuance of a QDRO “to insure that [Wife] receives her share of said
[pension and retirement] benefits.” The domestic relations court “reserve[d] and retain[ed] the
right to make any orders at any time in the future necessary to carry out the terms and intention
and purpose of [the divorce decree] and [QDRO][.]”
{¶10} Like the divorce decree, the stipulated QDRO states that Wife’s interest in
Husband’s retirement plan is “one-half (½) of the fraction the numerator of which is the number
of years that [Husband] participated in said plan while married to [Wife] (1/22/82 to 7/10/96), the
denominator of which is the total number of years [Husband] participates in said plan, times the
benefits to be received.” It is undisputed that neither the decree nor the stipulated QDRO
distinguished between contributory and non-contributory portions of Husband’s retirement
benefits. 6
{¶11} It is well-settled that “[p]ension or retirement benefits earned during the course of
a marriage are marital assets and a factor to be considered in the division of property.” [CITATION], ¶ 5, citing [CITATION]. Accord R.C. 3105.171(A)(3)(a)(i) (“‘Marital property’ means * * * [a]ll real and
personal property that is currently owned by either or both of the spouses, including * * * the
retirement benefits of the spouses * * *.”). A QDRO “implements a trial court’s decision of how
[retirement benefits are] to be divided incident to divorce or dissolution.” [CITATION] at ¶ 7.
{¶12} “While a [domestic relations] court has the power to enforce a property division
incorporated into a divorce decree, * * * [it] may not modify that property division.” [CITATION], ¶ 4, citing R.C. 3105.171(I); [CITATION]. R.C. 3105.17(I), titled “Division of marital
property; separate property” states:
***
(I) A division or disbursement of property or a distributive award made under this
section is not subject to future modification by the court except upon the express
written consent or agreement to the modification by both spouses.
***
“A property division made in accordance with R.C. 3105.171, including any distributive awards,
is not subject to future modification by the court.” [CITATION], ¶
72 (“once the trial court divides the marital property and enters the final decree of divorce, the
judgment is final and the court no longer possesses jurisdiction over the division of marital assets.”)
[SEGMENT 19]
“The trial court cannot overcome this rule by an explicit reservation of continuing jurisdiction.”
[CITATION].
====== End of Part of a Court Ruling ====== 7
{¶13} While a trial court maintains authority to clarify an ambiguity in a divorce decree,
its jurisdiction is limited to clarifying those terms that are “‘capable of being understood in two or
more possible senses or ways[.]’” [CITATION], ¶ 7-8, quoting Merriam-Webster’s Collegiate Dictionary 39 (11th Ed.2005). Absent the
parties’ express written consent or agreement, R.C. 3105.171(I) prohibits the trial court from
modifying the parties’ agreement as contained in a divorce decree. See [CITATION], ¶ 1, citing R.C. 3105.171(I) (recognizing that property division may
be modified only upon the express written consent or agreement by both spouses); [CITATION],
*2 (Dec. 5, 2001) (recognizing that, absent the
express written consent or agreement of both spouses, the domestic relations court’s authority is
limited to “clarify[ing] and constru[ing] its original property division so as to effectuate its
judgment.”)
{¶14} In this case, the trial court adopted a magistrate’s decision. “Generally, the decision
to adopt, reject, or modify a magistrate’s decision lies within the discretion of the trial court and
should not be reversed on appeal absent an abuse of discretion.” [CITATION], ¶ 5. However, “[i]n so doing, we consider the trial
court’s action with reference to the nature of the underlying matter.” [CITATION], ¶ 18. An abuse of discretion means more than an
error of law or judgment; it implies that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. [CITATION], 219 (1983). When applying the
abuse of discretion standard, a reviewing court is precluded from simply substituting its own
judgment for that of the trial court. [CITATION], 621 (1993). 8
{¶15} The divorce decree and stipulated QDRO unambiguously awarded Wife retirement
benefits in the amount of “one-half (1/2) of the fraction the numerator of which is the number of
years that [Husband] participated in said plan while married to [Wife] (1/22/82 to 7/10/96), the
denominator of which is the total number of years [Husband] participates in said plan, times the
benefits to be received.” It is undisputed that neither the divorce decree nor the stipulated QDRO
distinguished contributory and non-contributory portions of Husband’s retirement benefits and
that, as such, Ford’s interpretation was consistent with the decree and QDRO. Husband now wants
to modify the terms of the decree so that it distinguishes contributory and non-contributory
portions of his retirement benefits.
{¶16} If the amount Wife receives from Husband’s retirement benefits with Ford is
limited to a non-contributory calculation, as Husband claims, Husband’s expert acknowledged that
the stipulated QDRO would need to be amended. The QDRO in this case is the exact same
language as the parties’ divorce decree; modifying the QDRO is an amendment of the parties’
agreement reflected in the divorce decree. We conclude that such an amendment would constitute
a modification of the parties’ divorce decree and stipulated QDRO without “the express written
consent or agreement to the modification by both spouses.” R.C. 3105.171(I).
{¶17} Husband acknowledged the need for a QDRO modification in his motion to modify
and clarify judgment entry. In his motion, Husband specifically asked the trial court to “modify
the language regarding [his] retirement and pension to effectuate the intent of the Judgment Entry.”
While Husband testified as to his intent, Husband’s intent is irrelevant. Husband is seeking a
modification of pension or retirement benefits, which constitute “marital assets and a factor to be
considered in the division of property.” [CITATION], 2007-Ohio-6056 at ¶ 5. A property
division is not subject to future modification by a trial court absent “the express written 9
agreement to the modification by both spouses.” R.C. 3105.171(I); [CITATION].
{¶18} While the trial court maintains that it did not modify the parties’ original divorce
decree, we disagree with this conclusion. Husband’s motion specifically requested a modification
of the decree language regarding the division of his pension in the QDRO. It is undisputed that
neither the divorce decree nor the original stipulated QDRO distinguished between non-
contributory and contributory portions of Husband’s retirement benefits. We conclude that
changing the original stipulated QDRO to reflect such a distinguishment constitutes a modification
to the parties’ divorce decree. Absent “the express written consent or agreement to the
modification by both spouses[,]” the trial court did not have jurisdiction to modify the divorce
decree and QDRO. R.C. 3105.171(I). Wife’s assignment of error is sustained.
III.
{¶19} Because the trial court improperly modified the parties’ divorce decree, we reverse
the judgment of the Lorain County Common Pleas Court, Domestic Relations Division. This
matter is remanded for the court to correct its judgment entry in accordance with this decision.
Judgment reversed,
cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27. 10
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
SCOT STEVENSON
FOR THE COURT
FLAGG LANZINGER, J.
CONCURS.
HENSAL, P.J.
CONCURRING IN JUDGMENT ONLY.
{¶20} The plain language of Revised Code Section 3105.171(I) compels me to concur in
the disposition reached by the majority opinion. Section 3105.171(I) provides that a property
division “is not subject to future modification * * * except upon the express written consent or
agreement to the modification by both spouses.” This language unambiguously requires three
things: (1) “written consent or agreement[,]” (2) by both parties, (3) “to the modification.” Id.
{¶21} Before 2010, however, Section 3105.171(I) did not permit modification by any
means. Interpreting the previous version of the statute, this Court recognized on several occasions
that a trial court could not reserve the ability to modify a property division. See [CITATION]. 11
2000 WL 327227, *4 (Mar. 29, 2000); [CITATION]. The language of the current version of Section 3105.171(I) provides a specific means
of modification. See generally [CITATION].
{¶22} In this case, the divorce decree incorporated the terms of the parties’ separation
agreement, which provided, in part, that that the trial court “specifically reserves and retains the
right to make any orders at any time in the future necessary to carry out the terms and intention
and purpose of this Judgment Entry and Qualified Domestic Relations Order.” One court has
concluded that when a divorce decree incorporates the parties’ agreed property division, Section
3105.171(I) permits modification when the parties have agreed “to the fact of modification itself.”
[CITATION]. Most courts,
however, have concluded that the phrase “to the modification” means that “the express written
consent or agreement” to the modification at issue is required. Consequently, as under the previous
version of the statute, those courts conclude that a trial court cannot reserve jurisdiction to modify
a property division under any circumstances. See, e.g., [CITATION]. Given
the plain language of the statute, I agree that this view is correct.
{¶23} The language in the divorce decree, therefore, did not permit modification apart
from compliance with the terms of Section 3105.171(I). I agree with the majority’s disposition
because the trial court’s action modified the property division and because the current version of
Section 3105.171(I) does not contemplate that a trial court can do so apart from “the express
written consent or agreement to the modification by both spouses.” 12
APPEARANCES:
DAVID J. BERTA, Attorney at Law, for Appellant.
GIOVANNA V. BREMKE, Attorney at Law, for Appellee.
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
J.F. : CASE NO. CA2023-06-065
: OPINION
[SEGMENT 20]
/27/2023
:
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2020-0186
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee.
Garrett Law Offices, and Dawn S. Garrett, for appellant.
Father, pro se.
Tracy A. Jackson, guardian ad litem.
BYRNE, J.
{¶ 1} Appellant ("Mother"), the mother of J.F. ("James"), appeals the decision of the Butler CA2023-06-065
Butler County Court of Common Pleas, Juvenile Division, granting permanent custody of
the child to Butler County Department of Job and Family Services ("the Agency"). 1 For the
reasons outlined below, we affirm the juvenile court's decision.
I. Factual and Procedural Background
{¶ 2} James was born to Mother on July 15, 2020. Just two days later, on July 17,
2020, the Agency filed a complaint alleging that James was a dependent child. The juvenile
court granted the agency emergency temporary custody the same day. The complaint
stated that Mother was severely mentally ill and unable to care for her son; Mother had
been diagnosed with schizoaffective disorder bipolar type but had stopped taking her
prescribed medications and had ceased utilizing mental health services. The complaint
further alleged that Mother has had documented mental health issues for at least ten years
and had been probated into mental health facilities in 2015 and 2018. On April 5, 2020,
Mother was probated to the Beckett Springs behavioral health hospital where she remained
until May 22, 2020. Otherwise, Mother resided with her parents, but the Agency expressed
concern that her parents did not understand the gravity of Mother's mental health issues.
On July 20, 2020, following a hearing, the juvenile court ordered James be placed in shelter
care with the agency. On August 19, 2020, James was adjudicated to be a dependent child
based upon stipulations to portions of the complaint.
{¶ 3} On September 11, 2020, the juvenile court held a dispositional hearing and
adopted a case plan with reunification as the goal. The case plan required Mother to be
engaged in mental health services, to take all prescription medications as recommended,
to become stabilized, and to acknowledge her mental health diagnoses. The case plan also
referred Mother for a full psychological assessment to determine the services in which she
1. "James" is a pseudonym adopted in this opinion for purposes of privacy and readability. [CITATION], ¶ 1, fn. 1.
Butler CA2023-06-065
should be engaged. Finally, the case plan required Mother to participate in a
Developmental Living Skills (DLS) program in order to improve her parenting skills, and at
a time closer to reunification, the plan required Mother to engage in a more intense program
such as the Family Preservation Program, which would take place in Mother's home.
{¶ 4} At the same time, the juvenile court ordered genetic paternity testing, which
successfully determined the identity of James' father ("Father"). Father did not seek
custody of James, but stated that he loved his son, and wanted him to be adopted by the
assigned foster family.
{¶ 5} On August 16, 2020 and September 15, 2020, Mother underwent
psychological evaluation, with both of her parents present, at CDC Behavioral Health
Services in Hamilton, Ohio. Mother presented as highly delusional and psychotic at both
of her appointments, and the assessor observed that Mother appeared to have difficulty
differentiating reality from fantasy or delusion. Mother claimed to possess psychic abilities
and claimed that she knew several years ago she would be meeting with the assessor.
Despite these concerning behaviors, Mother's parents claimed she was not currently
delusional, minimized her symptom presentation, and stated that they did not understand
why the healthcare providers were concerned about Mother's ability to function
independently.
{¶ 6} Mother began the DLS program on September 1, 2020. However, Mother
missed multiple appointments and terminated the DLS program on October 7, 2020
because she felt she did not need the service. Mother eventually reengaged with DLS in
March 2021 and completed the program on August 18, 2021. The DLS Exit Report noted
that Mother showed little interest in gaining independence from her parents, permitting them
to manage her funds and stating on many occasions that when they die, her brother would
be responsible for taking care of her in the same way.
[CITATION]
{¶ 7} Mother regularly attended supervised visits with James until January 10,
2023, when she ceased entirely. Up until that point, Mother appeared to generally have a
loving bond with James, but certain interactions and incidents drew serious concern from
the care providers. Mother was resistant to James transitioning to solid foods and
expressed some apprehension over James being potty trained. She even opined that
James being potty trained may lead to his death. On another occasion, Mother tried to
prevent James from participating in outdoor celebrations on the Fourth of July—opining that
the noises would cause him to become dehydrated. Mother continually refused to follow
the advice of the visitation center's supervising staff and would not discipline James. Mother
would not be firm with James and would not use "cool-downs" or "time-outs." Mother also
tried to prevent James from traveling outside the foster home and expressed that she did
not want James riding in cars unless absolutely necessary. On another occasion, Mother
advised that she does not leave home at all and would not do so with James. Mother
discussed with a visitation supervisor that she had lived past lives going back thousands of
years, was psychic, and could predict certain future events. Overall, Mother had a tenuous
grip on the purpose and importance of these supervised visits and therefore made limited
progress developing her parenting skills.
{¶ 8} The Agency made numerous attempts to conduct a home study of Mother's
parents' residence to determine if it was safe and appropriate for James to live there, but
each time Mother's parents refused to set an appointment, or if an appointment was made,
they would cancel it, often citing concerns over COVID. During the entire pendency of this
case, only one professional—mother's therapist—was ever permitted access into the home.
Although the therapist's report was favorable, she was only present in and only observed
in one room of the house. Father later vigorously testified against placement of James in
Mother's care, her parents' care, or any combination thereof. Father testified that he had
[CITATION]
been in Mother's parents' house approximately five times in 2019, and described it as
cluttered, dirty, and smelling of animal feces. Father expressed fear that if James was
placed there, Mother's family would cut him off from the outside world. This testimony was
reinforced by Mother's previous comments that she did not want James to ever leave the
house.
{¶ 9} For the first 14 months after James was removed from Mother's care, Mother
made little progress in terms of mental health treatment. Then in September 2021, Mother
sought out and began treatment at Ray of Hope counseling services in Mason, Ohio.
Mother's therapist, Maury McCoy, testified that Mother appeared at that time to have
schizoaffective disorder, having a flat, catatonic, affectation, and making random
movements of her hands, head, and arms. Nevertheless, therapist McCoy and Mother's
psychiatrist, Dr. Gilmore-Gordon, concluded that Mother did not suffer from schizoaffective
disorder, but rather suffered from depression and post-traumatic stress disorder. However,
Mother never provided her mental health history to therapist McCoy, who instead relied
entirely on what Mother self-reported during therapy sessions, many of which occurred over
the telephone. Dr. Gilmore-Gordon did not review Mother's mental health history until
sometime after she had begun treating Mother.
{¶ 10} Review hearings were held on January 7, 2021; April 2, 2021; October 5,
2021; December 28, 2021; March 22, 2022; and May 26, 2022. On March 16, 2022, the
Agency filed a motion for permanent custody of James, and on November 15, 2022, the
Guardian ad Litem for James filed a report recommending permanent custody be granted
to the agency.
{¶ 11} The Agency's motion for permanent custody was heard on November 15,
2022; January 31, 2023; February 8, 2023; February 23, 2023; and concluded on March 2,
2023. At the hearings it was apparent that Mother still suffered from disorganized thinking
Butler CA2023-06-065
and panic attacks, and harbored several delusions. Mother continued to insist that she is
psychic and that she has lived past lives and reincarnated. Mother admitted that during a
visit with James, she provided a handwritten note to a care provider that stated "Gretchen,
I remember being terrified of [Father], hailstorm, Lizzy Hail, Oxford Ridge, White dress and
knife." In her testimony, Mother suggested that in a previous life she was a cancer patient
or possibly even lived as musician Lizzy Hale, and these experiences were mirrored in lyrics
[SEGMENT 21]
from the rock band Hailstorm. Mother further claimed that she had been in a relationship
with Father in a previous life where he had severely beaten her and was sent to prison for
eight years. Later, Mother failed to appear at the February 8, 2023 hearing, with her counsel
asserting that she was absent due to stress induced illness. She again failed to appear at
the proceedings on March 2, 2023, without any explanation.
{¶ 12} Dr. Gilmore-Gordon and therapist McCoy testified on Mother's behalf,
reiterating that she did not suffer from schizoaffective disorder, and concluding that she
should be able to function as a caregiver to James. However, in light of Mother's lack of
transparency with these care providers, Mother's previous delusional testimony, and the
overwhelming reports of Mother's ongoing mental health problems, the juvenile court did
not find the testimony of Dr. Gilmore-Gordon and therapist McCoy persuasive.
{¶ 13} On April 3, 2023, the magistrate issued a decision granting permanent
custody of James to the Agency. In the decision, the magistrate applied the R.C.
[CITATION] two-part permanent custody test. As for the first part of the two-part test,
the magistrate found that a grant of permanent custody to the Agency was in James' best
interest. As for the second part of the two-part test, the juvenile court found that James had
been in the temporary custody of the Agency for 12 or more months of a consecutive 22-
month period. On the same day, the juvenile court judge approved and adopted the
magistrate's decision as the decision and final judgment of the court.
Butler CA2023-06-065
{¶ 14} Mother objected to the magistrate's decision on April 13, 2023, and a hearing
was held on June 13, 2023. Mother was again absent without any explanation. The juvenile
court overruled Mother's objections on June 14, 2023, and Mother filed a notice of appeal
on June 16, 2023.
II. Legal Analysis
{¶ 15} Mother now appeals the juvenile court's decision granting permanent custody
of James to the Agency, raising the following assignment of error for our review:
{¶ 16} THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY TO
WARREN COUNTY CHILDREN SERVICES.
{¶ 17} On appeal, Mother argues the juvenile court's decision granting permanent
custody of James to the Agency was against the manifest weight of the evidence and is
supported by insufficient evidence. Within her sole assignment of error, Mother raises two
arguments. First, Mother claims that granting permanent custody to the Agency is not
necessary and therefore not in the best interest of James because she has addressed the
conditions that led to James' removal. Specifically, Mother claims she has addressed her
mental health issues, she has a safe and appropriate home for James to live in, she and
James are bonded, and she has demonstrated an ability to nurture and parent James
appropriately. Second, Mother argues that the agency failed to provide testimony
demonstrating reasonable efforts to locate relatives for placement, and therefore the
juvenile court could not award permanent custody to the Agency. However, Mother does
not elaborate on this claim or cite to any law whatsoever.
A. Applicable Law and Standards of Review
{¶ 18} "Before a natural parent's constitutionally protected liberty interest in the care
and custody of [her] child may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met."
Butler CA2023-06-065
In re M.G., [CITATION]; R.C. 2151.414(E).
Under R.C. 2151.414(B)(1), the juvenile court may terminate parental rights and award
permanent custody of a child to a children services agency if the court makes findings
pursuant to a two-part test. In re K.P., [CITATION]. First, R.C. 2151.414(B)(1) provides that the juvenile court must find that the
grant of permanent custody to the agency is in the "best interest" of the child. In re M.H.,
[CITATION]. Second, the juvenile court must find that one of the circumstances set forth in R.C.
2151.414(B)(1)(a) to (e) apply. In re R.B., [CITATION]. Those circumstances include, but are not limited
to: (1) the child is abandoned, R.C. 2151.414(B)(1)(b); (2) the child is orphaned, R.C.
2151.414(B)(1)(c); (3) the child has been in the temporary custody of one or more public
children services agencies for 12 or more months of a consecutive 22-month period, R.C.
2151.414(B)(1)(d); and (4) none of the previous three circumstances applies, and the child
cannot be placed with either of the child's parents within a reasonable time or should not be
placed with the parents, R.C. 2151.414(B)(1)(a). Only one of these circumstances need
apply to satisfy the second prong of the two-part permanent custody test. In re C.S., [CITATION].
{¶ 19} "An appellate court's review of a juvenile court's decision granting permanent
custody is generally limited to considering whether sufficient credible evidence exists to
support the juvenile court's determination." In re A.S., [CITATION]. However, "[e]ven if there is sufficient
evidence to support the juvenile court's decision, an appellate court may nevertheless
reverse a permanent custody judgment if it finds the judgment to be against the manifest
weight of the evidence." In re G.A., [CITATION].
Butler CA2023-06-065
643, ¶ 18, citing [CITATION], ¶ 61. In determining whether a juvenile court's judgment is against the
manifest weight of the evidence, an appellate court "'weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a
manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.'"
[CITATION], quoting [CITATION]. The presumption in weighing the evidence favors the finder of
fact, which we are especially mindful of in custody cases. [CITATION]. Therefore, if the evidence is
susceptible to more than one construction, the reviewing court is bound to give it the
interpretation that is consistent with the verdict and judgment. [CITATION].
B. First Part of the Permanent Custody Test: Best Interest Analysis
{¶ 20} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in
a permanent custody hearing, a juvenile court must consider all relevant factors, including,
but not limited to, the following:
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child's guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the child
has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month
Butler CA2023-06-065
period * * *;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶ 21} A juvenile court may also consider any other factors it deems relevant to the
child's best interest. [CITATION], ¶ 24.
{¶ 22} Mother essentially argues that the juvenile court should have given greater
weight to her testimony, as well as to the testimony of Dr. Gilmore-Gordon and therapist
McCoy, that she had remediated her mental health issues, had a good relationship with
James, and had a safe home for him to live in. However, the juvenile court simply did not
find these claims to be credible.
{¶ 23} Based upon its consideration of the R.C. 2151.414 factors, the magistrate
found by clear and convincing evidence—and the juvenile court affirmed—that it was in
James' best interest to grant permanent custody to the Agency. Regarding the first and
second best interest factors, the juvenile court recognized that James has been in foster
care virtually his entire life and therefore is not bonded to Mother. In fact, Mother stopped
visiting with James in January 2023. James' Guardian ad Litem supported the Agency's
motion for permanent custody and all reports indicated that James was loved and well cared
for by his foster family, which is interested in adopting him if that becomes a possibility.
Father has been supportive of the motion for permanent custody by the Agency and has
been adamantly opposed to placement of James with Mother or Mother's parents.
{¶ 24} Regarding James' need for a legally secure permanent placement, the court
[SEGMENT 22]
recognized that Mother had an extensive history of mental health problems and had been
- 10 - Butler CA2023-06-065
probated into mental health facilities several times. Although Mother may have made some
progress under the care of Dr. Gilmore-Gordon and therapist McCoy, this progress was too
little, too late. Whatever progress Mother made was diminished by Mother's obfuscation of
her mental health history, and was outweighed by Mother's own testimony at trial that
evidenced her ongoing delusions. Throughout the pendency of this case, Mother failed to
coordinate a single home study with the Agency to assess living conditions, and only had
one positive visit from her therapist, who had a limited view of the home from a single room.
{¶ 25} The credibility of witnesses and the weight given to their testimony are
primarily matters for the finder of fact. [CITATION] Where evidence is susceptible to more than one construction, we
are required to give it the interpretation most favorable and consistent with the verdict and
judgment. Id. Although Mother presented some favorable testimony at trial, we find that
the juvenile court did not err in concluding that it was outweighed by other evidence of
Mother's severe and ongoing mental health problems and her inability to provide
appropriate care to James. Accordingly, the juvenile court did not err in finding the best
interest factors weighed in favor of awarding permanent custody to the agency.
C. Second Part of the Permanent Custody Test
{¶ 26} Mother on appeal does not challenge the juvenile court's finding under R.C.
2151.414(B)(1)(d) that James had been in the temporary custody of CCDJFS for at least
12 months of a consecutive 22-month period. Because Mother does not challenge this "12
of 22" finding, we need not review the issue further. [CITATION] However, we note that the record unquestionably
establishes that the "12 of 22" finding was met in this case because James was adjudicated
dependent in August 2020, and James remained in the Agency's custody through the date
the agency filed for permanent custody, in March 2022.
- 11 - Butler CA2023-06-065
D. Efforts to Locate Relatives
{¶ 27} Within her sole assignment of error, Mother raises a cursory argument that
the Agency failed to present testimony that demonstrated its reasonable efforts to locate
relatives with whom James could be placed. However, Mother fails to make any argument
in support of this claim, citing no law and making no reference to the record. App.R.16(A)(7)
provides that an appellant's brief must include "[a]n argument containing the contentions of
the appellant with respect to each assignment of error presented for review and the reasons
in support of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies." This court may disregard an assignment of error if a party
fails to identify in the record the error on which the assignment of error is based or fails to
argue the assignment separately in the brief. [CITATION] Therefore, we decline to consider Mother's argument.2
III. Conclusion
{¶ 28} In light of the foregoing, we conclude the juvenile court did not err by
determining that it was in James's best interest to grant permanent custody to the Agency.
As such, we find the juvenile court's decision to grant permanent custody of James to the
Agency was supported by clear and convincing evidence and was not against the manifest
weight of the evidence. Mother's sole assignment of error is overruled.
{¶ 29} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
2. We note that the permanent custody statute does not require a juvenile court to consider relative placement
before granting a motion for permanent custody. See [CITATION] Even so, at the October 5, 2021 review hearing, an agency caseworker indicated that the Agency
had sent out letters and conducted multiple relative searches using Accurint, a locate-and-research tool used
in investigations. Further, no relatives or non-relatives, including Mother's parents, came forward seeking
placement of James.
- 12 - =
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as Bobie v. Bobie, 2023-Ohio-3293.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
REGINA BOBIE, :
CASE NO. CA2022-12-119
Appellee, :
OPINION
: 9/18/2023
- vs -
:
FRANCIS BOBIE, :
Appellant. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR 20 09 0633
Zachary D. Smith LLC, and Zachary D. Smith, for appellee.
Smith, Meier & Webb, LPA, Mark D. Webb, for appellant.
M. POWELL, J.
{¶ 1} Appellant, Francis Bobie ("Husband"), appeals a decision of the Butler County
Court of Common Pleas, Domestic Relations Division, dividing the parties' assets and
liabilities and awarding spousal support and attorney fees to appellee, Regina Bobie
("Wife").
Butler CA2022-12-119
{¶ 2} Wife filed a divorce complaint on September 23, 2020; Husband answered
and counterclaimed for divorce on October 29, 2020. Three children were born issue of the
marriage. Only the third child was unemancipated at the time the divorce was filed; he
turned 18 years old in October 2022. Wife claimed the parties were married on August 10,
1992; Husband claimed they were married on December 27, 1997. The trial court found
that "[t]he best evidence supports the parties married August 10, 1992 and participated in
ceremonial nuptials at Holy Spirit Cathedral on December 27, 1997." The parties are both
originally from Ghana and are naturalized American citizens.
{¶ 3} Husband is an engineer in the field of oil and gas and was employed by
General Electric in Cincinnati, Ohio for many years. In 2008, he began taking international
assignments in Ghana, Singapore, and Switzerland and worked as an expatriate for
approximately ten years. Between 2015 and 2019, his annual wage was in the mid "six
figures," with an average annual wage of $550,937. He became unemployed in March 2020
but continued his projects in Ghana throughout the divorce proceedings. Wife earned
bachelor's and master's degrees during the marriage. She worked as an underwriter for
Cincinnati Financial until she established her home health care business. Between 2016
and 2021, her annual wage ranged from $3,231 (2017) to $87,740 (2021). Due in part to
complicated expatriate tax filings and other business interests, the parties have filed
separate tax returns for nearly 20 years of their marriage. Both Husband and Wife have
been successful in their career pursuits.
{¶ 4} Issues regarding the division of the parties' marital and separate property in
Ghana and the United States were considered during a contested four-day divorce trial in
May 2022. Husband represented himself. Both parties testified. Isaac Agyemang and
Lawrence Tagoe, both Ghanaian real estate appraisers, and Wilson Opoku, an employee
of Wife, testified on behalf of Wife. Joana Acheampong and Elizabeth Hosu, both sisters
-2-
Butler CA2022-12-119
of Husband, Dominic Kwaku Darkwa, a chartered surveyor, and William Bobie, a chartered
surveyor by profession and Husband's brother, testified on behalf of Husband.
{¶ 5} The properties in the United States included: (1) the marital house in West
Chester, Ohio; (2) Maanu Bobie Properties, LLC, a joint business venture largely holding
real estate in Fairfield, Ohio; (3) Bobie Whitmore, LLC, a joint venture holding real estate in
Fairfield, Ohio; (4) Affribean, LLC, a logistics company owned and operated by Wife; (5)
Loving Care Transitional Home, LLC, a home health care business owned and operated by
Wife; (6) BTC, LLC, holding a commercial office building in West Chester, Ohio; and (7)
BKK Living Trust, holding two tracts of undeveloped land in West Chester, Ohio.
{¶ 6} The properties in Ghana included: (1) the Asikasu Farm, a farm Husband
intended to develop into a tourist attraction similar to an electric farm the parties visited in
Singapore; (2) Clifton Gallery 1 (a one-bedroom apartment) and Clifton Gallery 2 (a two-
bedroom apartment), two condominium units with high-end amenities and located within a
desirable real estate market; (3) Diamond Villa, Husband's residence in a gated community
in Accra; (4) BA Auto Parts, holding real estate, buildings, equipment, and inventory; and
(5) Adade, LLC, a company established by Husband to aid in the acquisition of inventory
for BA Auto Parts.
{¶ 7} The trial court issued a decision on August 31, 2022; the divorce decree was
journalized on December 6, 2022. The trial court found that all the properties in Ghana and
the United States were marital property, awarded the marital home and the Ghanaian
properties to Husband, and awarded all the other properties located in the United States to
Wife. The trial court found that the total marital property equaled $4,904,097.56 and
ordered Husband to pay Wife a lump sum property equalization payment of $922,591.13
within 90 days of the filing of the divorce decree. The trial court awarded Wife $10,000 in
attorney fees, ordered Husband to pay Wife $10 a year in spousal support, found that
-3-
Butler CA2022-12-119
Husband had committed financial misconduct by failing to disclose or cooperate in the
exchange of discovery, and reserved jurisdiction to order the sale of the marital home or
make other orders as necessary should Husband refuse to pay Wife the property
equalization payment.
{¶ 8} Husband now appeals, raising nine assignments of error. Husband
challenges the trial court's property division, the awards of spousal support and attorney
fees, and the court's finding Husband committed financial misconduct.
{¶ 9} Property division in a divorce proceeding is a two-step process that is subject
to two different standards of review. Smith v. Smith, 12th Dist. Butler No. CA2021-09-109,
2023-Ohio-982, ¶ 28. The trial court must first determine "what constitutes marital property
and what constitutes separate property." R.C. 3105.171(B). "Although the statute does not
mention debt as an element of marital and separate property, the rules concerning marital
assets have been consistently applied to marital and separate debt." Cooper v. Cooper,
12th Dist. Clermont No. CA2013-02-017, 2013-Ohio-4433, ¶ 13. We review the
classification of property or debt as marital or separate under the manifest-weight-of-the-
evidence standard and will not reverse a trial court's classification if it is supported by
competent and credible evidence. Smith at ¶ 28. In determining whether competent and
credible evidence exists, "[a] reviewing court should be guided by a presumption that the
findings of a trial court are correct, since the trial judge is best able to view the witnesses
and observe their demeanor, gestures, and voice inflections, and use those observations
in weighing the credibility of the testimony." Grow v. Grow, 12th Dist. Butler Nos. CA2010-
08-209, CA2010-08-218, and CA2010-11-301, 2012-Ohio-1680, ¶ 11.
{¶ 10} After classifying the parties' assets and debts as either marital or separate
property, the trial court must then distribute the separate property and equitably divide the
marital property between the spouses in accordance with the provisions of R.C. 3105.171.
-4-
Butler CA2022-12-119
Smith at ¶ 29. The trial court has broad discretion to determine an equitable and fair division
of the marital estate. Id. An appellate court will not reverse a trial court's property division
in a divorce proceeding absent an abuse of discretion. Id. An abuse of discretion implies
that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE TRIAL COURT LACKED JURISDICTION TO ORDER THE
ALLOCATION OF PROPERTY IN GHANA.
{¶ 13} Husband argues the trial court erred by allocating the Ghanaian properties
because the court lacks subject-matter jurisdiction to issue orders directly affecting title to
properties located within a foreign country.1 Husband cites Groza-Vance v. Vance, 162
Ohio App.3d 510, 2005-Ohio-3815 (10th Dist.), in support of his argument. Husband also
briefly notes that none of the appraisal experts were able to confirm ownership of the
Ghanaian properties. The ownership issue of the Ghanaian properties will be addressed
under Husband's third assignment of error.
{¶ 14} "Subject-matter jurisdiction is a court's power over a type of case." Pratts v.
Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980, ¶ 34. Subject-matter jurisdiction "does not
relate to the rights of the parties, but to the power of the court." (Emphasis omitted.) State
ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 1998-Ohio-275. "[T]he subject-matter
jurisdiction of a trial court * * * to formulate an equitable division of the marital assets
commences when either party files a complaint for divorce and a division of the marital
property." Bolinger v. Bolinger, 49 Ohio St.3d 120, 123 (1990). "[A] domestic relations
1. Prior to trial, Husband filed a motion to "deny jurisdiction," arguing that matters relating to any assets in
Ghana should be litigated there. At trial, Husband argued that the Ghanaian properties should be handled by
a Ghanaian court because the marriage contract was signed there, and challenged the trial court to "go to
Ghana, and verify" some of the evidence presented by Wife.
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court is a court of equity and has 'full equitable powers and jurisdiction appropriate to the
determination of all domestic relations matters.'" Maloney v. Maloney, 160 Ohio App.3d
209, 2005-Ohio-1368, ¶ 57 (2d Dist.), quoting R.C. 3105.011(A).
{¶ 15} In Groza-Vance, the Tenth District Court of Appeals observed that
a court of one state has no power to directly affect title to land
located wholly within the borders of another state. In Fall v.
Eastin (1909), 215 U.S. 1, 30 S.Ct. 3, the United States
Supreme Court noted as firmly established, "the doctrine that
the court, not having jurisdiction of the res, cannot affect it by its
decree, nor by a deed made by a master in accordance with the
decree[.]" Id. at 11. * * * However, the Supreme Court also
noted that "[t]he territorial limitation of the jurisdiction of courts
of a state over property in another state has a limited exception
in the jurisdiction of a court of equity * * *." Id. at 8. "A court of
equity, having authority to act upon the person, may indirectly
act upon real estate in another state, through the instrumentality
of this authority over the person." Id.
Groza-Vance, 2005-Ohio-3815 at ¶ 17. Thus, "a court of equity, by means of its power over
the person of a party, may compel the party to act in relation to property located outside the
court's territorial jurisdiction. The court's decree does not operate directly upon the property
or affect its title, but is made effectual through coercion of the defendant." (Citations
omitted.) Id. at ¶ 18.
{¶ 16} Contrary to Husband's assertion, the trial court's divorce decree allocating the
Ghanaian properties did not directly affect title to those properties. Rather, the trial court
found only that the Ghanaian properties were marital property because Husband acquired
an interest in the properties during the marriage, determined the value of the properties,
and allocated them to Husband pursuant to its equitable power. The trial court, therefore,
did not exceed its jurisdiction by allocating the Ghanaian properties.
{¶ 17} Husband's first assignment of error is overruled.
{¶ 18} Assignment of Error No. 2:
{¶ 19} IF THE COURT DETERMINES THE TRIAL COURT APPROPRIATELY
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EXERCISED JURISDICTION, THE PROPERTIES IN GHANA ARE THE DEFENDANT'S
SEPARATE PROPERTY AND SHOULD NOT BE ALLOCATED AS A MARITAL ASSET.
{¶ 20} Husband argues that even if the trial court had subject-matter jurisdiction over
the Ghanaian properties, it erred by finding they were marital property and not separate
property. Husband claims that he and his siblings have only a beneficial interest in the
Ghanaian properties as a result of the passing of their parents in 2018. In support of his
argument, Husband cites his testimony, the testimony of his siblings, and Exhibits AA, BB,
MM, and NN.
{¶ 21} "Marital property" includes "all real and personal property that currently is
owned by either or both of the spouses" and "[a]ll interest that either or both of the spouses
currently has in any real or personal property," "that was acquired by either or both of the
spouses during the marriage." R.C. 3105.171(A)(3)(a)(i), (ii). In contrast, "separate
property" includes "[a]n inheritance by one spouse by bequest, devise, or descent during
the course of the marriage," "any real or personal property or interest in real or personal
property that was acquired by one spouse prior to the date of the marriage," and "[a]ny gift
of any real or personal property or of an interest in real or personal property that is made
after the date of the marriage and that is proven by clear and convincing evidence to have
been given to only one spouse." R.C. 3105.171(A)(6)(a)(i), (ii), and (vii).
{¶ 22} The party seeking to have a particular asset classified as separate property
has the burden of proof, by a preponderance of evidence, to trace the asset to separate
property. Smith, 2023-Ohio-982 at ¶ 33. "Traceability presents a question of fact, and so
a court of appeals must defer to the trial court's findings." Id. An appellate court will not
reverse a decision on tracing so long as it is supported by competent, credible evidence.
Id.
{¶ 23} Husband's father died in 2018; he was predeceased by his wife. The record
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indicates that the estate of Husband's parents owns multiple assets in Ghana, including
farmlands and dwellings. One of the farmlands is the Adade Farm in Kasoa, Ghana.
Acheampong, a sister of Husband, and Wife both testified that Husband built and started
BA Auto Parts on the Adade Farm prior to 2018. By all accounts, the land surrounding BA
Auto Parts belongs to the estate. BA Auto Parts closed in December 2020. Between 2016
and 2019, pallets of spare and car parts were shipped to Ghana every two months or so at
Husband's request. Marital funds were used to purchase the shipped inventory.
{¶ 24} Wife testified that the Asikasu Farm was acquired by Husband in the summer
of 2019 while the family was visiting Husband in Ghana; Husband intended to develop the
property into a tourist destination similar to the Singapore electric farm. Husband needed
to give $3,000 to "the chief just to talk about acquiring the land." Husband retrieved the
money from a bank. The Asikasu Farm was registered with Ghana's Land Commission as
a sole proprietorship on October 10, 2019.
{¶ 25} Wife testified that the two Clifton Gallery condominiums were under
construction when Husband first showed them to her, and that is why he could not rent
them. Husband was accompanied by the facility manager during that visit and wanted to
show Wife the properties he had bought. The next time Wife saw the condominiums, they
were completed and Husband had a key.
{¶ 26} Likewise, Wife testified that the Diamond Villa was under construction when
she went to Ghana in 2017; Husband was trying to replicate the marital house. The record
shows that Husband filed a lawsuit in Ghana against the developer of the Villa (Exhibit 21).
Wife testified that a review of the Ghana lawsuit showed Husband used marital funds to
build the Villa. Exhibit 21 shows that (1) Husband was the sole trustee of a trust he
incorporated in Ghana in January 2014; (2) in June 2014, the trust entered into a purchase
agreement with the developer to buy a "four-bedroom detached house with maids room and
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family area" for $285,000; (3) Husband signed the contract on behalf of the trust; (4)
Husband signed two separate checks payable to the developer: a $142,000 check from
Barclays Bank on August 26, 2015, and a $109,775 check from The Royal Bank on
December 13, 2016; (5) neither check indicates they were signed by Husband on behalf of
the trust; and (6) there is no evidence that the trust was linked to or acting on behalf of the
estate.
{¶ 27} Wife's testimony and evidence show that the Asikasu Farm, the Diamond
Villa, the two Clifton Gallery condominiums, and the business BA Auto Parts were acquired
during the parties' marriage; they were therefore marital property under R.C.
3105.171(A)(3). Consequently, Husband bore the burden of proving by a preponderance
of the evidence that the foregoing properties and business were separate property.
Husband asserts he met his burden based upon his testimony, the testimony of his siblings,
and Exhibits AA, BB, MM, and NN.
{¶ 28} The testimony of Husband's sisters centered on the Adade Farm, the farmland
upon which Husband built and started BA Auto Parts. The Adade Farm and the Asikasu
Farm are two separate farmlands. One sister testified that all the properties her parents
owned were passed on to her and her siblings upon the death of their father. She further
testified she was not familiar with the financial state of the properties as such was managed
solely by Husband and their brother William. Both sisters testified that Husband was tasked
with managing the cattle and the farmlands on behalf of their family after he became
unemployed in 2020.
{¶ 29} Notwithstanding his opening statement that Wife was trying "to strip me of
everything that I own in Ghana," Husband repeatedly testified that the Ghanaian properties
were owned by the estate and that he (and his siblings) only had a beneficial interest in
them. When confronted with evidence showing otherwise, Husband gave varying
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explanations. He claimed he was simply complying with the "U.S. accounting laws" when
he listed the assets of the Asikasu Farm on his 2019 income tax return. He further claimed
many documents presented by Wife were manufactured. For example, Husband claimed
not recognizing the Royal Bank check, claimed that The Royal Bank does not exist in
Ghana, and claimed that the Barclays Bank check was manufactured. He testified he sued
the developer of the Villa on behalf of the estate and that he set up the trust simply to help
manage his beneficiary interest in the Villa. He further testified that one of the
condominiums was built by his father when Wife would have been two years old.
{¶ 30} The four exhibits cited by Husband do not disclose how the Ghanaian
properties were titled. Exhibits MM and NN both concern the Adade Farm. Exhibit NN is a
"plan of the land property of Adade Farms." Exhibit MM, titled "Indenture," is a June 9, 1980
document between the Chief of Ofankor (Lessor) and Husband's father and managing
director of the Adade Memorial Farms Ltd. (Lessee). The document was registered with
the Land Commission in 1998.
{¶ 31} Exhibit BB is a notarized letter from two of Husband's siblings stating that
Husband is a beneficiary of the estate, is allowed to live in what is presumably the Villa due
to his unemployment, and is managing parts of the estate which include "the Farms at
Adade and Asikasu, and Multi family Dwelling properties." Exhibit AA is a notarized
declaration by Husband and his siblings stating that (1) all the properties owned by their
parents were consolidated into an estate, (2) Husband and his siblings are trustees of the
estate and only beneficiaries, and (3) the estate consists of vehicles, monetary accounts,
multi and single-family dwellings, and "Farms at Kasoa and Asikasu."
{¶ 32} At trial, Husband conceded that although the estate owns multiple properties,
he only submitted partial evidence of ownership regarding one single asset, the Adade Farm
(Exhibits MM and NN), and only did so for the benefit of the court. Husband claimed he
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wanted to but was not authorized to submit evidence of ownership history of the Ghanaian
properties. Husband explained that upon meeting with his siblings, he was directed not to
disclose documents showing the ownership of the Ghanaian properties and was not
authorized to discuss those assets in court. The siblings' meeting resulted in Exhibit AA.
William, Husband's brother, confirmed Husband's testimony. William further indicated that
ownership information would be provided only after Wife filed a lawsuit in Ghana.
{¶ 33} As one of the estate's trustees with a beneficiary interest in the Ghanaian
properties, Husband was plainly best situated to provide dispositive evidence of how and
when the Ghanaian properties were acquired and titled. Husband failed to do so, instead
only providing a self-serving declaration with a vague and general description of what the
estate allegedly owns.
{¶ 34} In light of the foregoing, we find that Husband failed to prove that the
Ghanaian properties were separate. The trial court, therefore, did not err by finding that the
Ghanaian properties were marital properties and by allocating them to Husband.
{¶ 35} Husband's second assignment of error is overruled.
{¶ 36} Assignment of Error No. 3:
{¶ 37} THE TRIAL COURT ERRED IN VALUING ASSETS BY USING
INCONSISTENT METHODS AND DATES.
{¶ 38} Husband argues the trial court abused its discretion in its valuation of the
parties' assets in the United States and Ghana because it used inconsistent methods and
dates. The trial court established December 31, 2020, as the property valuation date.
Husband does not challenge this valuation date.
{¶ 39} Prior to making an equitable division of marital property, a trial court must
determine the value of marital assets. Flynn v. Flynn, 196 Ohio App.3d 93, 2011-Ohio-
4714, ¶ 10 (12th Dist.). "Rigid rules to determine value cannot be established, as equity
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depends on the totality of the circumstances." Baker v. Baker, 83 Ohio App.3d 700, 702
(9th Dist.1992); Briganti v. Briganti, 9 Ohio St.3d 220, 221-222 (1984). Thus, a trial court
has broad discretion in determining the value of marital property, and its decision regarding
property valuation will not be disturbed on appeal absent an abuse of discretion. Flynn at
¶ 10. "However, in determining the value of marital property, the trial court must have
sufficient evidence in order to justify and/or support the figure that it establishes." Id., citing
McCoy v. McCoy, 91 Ohio App.3d 570, 575 (8th Dist.1993). Therefore, whatever valuation
the trial court chooses must be supported by competent, credible evidence. Id. When
valuing a marital asset, the trial court is neither required to use a particular valuation method
nor precluded from using any method. Ruble v. Ruble, 12th Dist. Madison No. CA2010-09-
019, 2011-Ohio-3350, ¶ 64. The value assigned to each marital property is established
through documentary exhibits and the testimony of the parties and expert witnesses. See
Wei v. Shen, 12th Dist. Butler No. CA2002-12-300, 2003-Ohio-6253.
{¶ 40} As a general matter, a trial court should consistently apply the same set of
dates when evaluating all marital property that is subject to division and distribution in a
divorce proceeding. Homme v. Homme, 12th Dist. Butler No. CA2010-04-093, 2010-Ohio-
6080, ¶ 62. However, the circumstances of some cases may require the court to use
different dates for different valuation purposes, so that the court need not utilize the same
valuation date for each item of marital property. Keyser v. Keyser, 12th Dist. Butler No.
CA2000-06-127, 2001 Ohio App. LEXIS 1642, *8 (Apr. 9, 2001). In fact, when assigning
values to marital assets, pragmatic considerations largely dictate the choice of the date
utilized to make the value determination. Wei at ¶ 21. Moreover, as this court has
previously stated, "it is within the trial court's discretion to use different valuation dates
where the valuation or account balances at a certain date were the only evidence before
the court." Homme at ¶ 62.
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{¶ 41} Husband argues the trial court erred by using the county auditor tax appraisals
to value the real estate located in the United States (with the exception of the marital house)
because these appraisals are infrequently updated and are therefore unreliable. Husband
argues the trial court should have ordered the real property to be appraised and the
appraisal cost to be allocated between the parties. Husband notes that he requested funds
to conduct appraisal of the assets but his request was denied. Husband argues that the
court's reliance on the county auditor tax appraisals effectively resulted in dates other than
December 31, 2020, the valuation date established by the trial court for the real property in
the United States.
{¶ 42} During the proceedings, the trial court ordered that Husband be allocated the
marital house, which was owned free and clear of any encumbrance, and permitted him to
refinance or sell the property. The proceeds from any refinance or sale would then be
available to Husband to finance the litigation. Husband took neither option, instead moving
the trial court to stay the sale of the house which the trial court granted. The record therefore
belies Husband's assertion he was denied funds to conduct appraisals of the real property
located in the United States.
{¶ 43} It was not incumbent on the trial court to direct the parties on how to present
their case or to order appraisals of the real property. If Husband believed the county auditor
tax appraisals were unreliable, he could have submitted evidence, or offered testimony, as
to the value of the real property. He did not. The trial court made its valuation of the real
property located in the United States based upon the only valuation dates and appraisals
presented at trial. Because this was the only evidence presented, the trial court did not
abuse its discretion by using the county auditor tax appraisals and different dates to value
the real property in the United States. Keyser, 2001 Ohio App. LEXIS 1642 at *9; Wei,
2003-Ohio-6253 at ¶ 19, 21.
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{¶ 44} Husband next argues the trial court erred in valuing Loving Care Transitional
Home, Wife's business, based upon its balance sheet because the court failed to add back
into the value "depreciation and amortization of over $140,000.00." Husband further claims
the trial court did not value the vehicle used in Wife's business. Contrary to Husband's
claim, the record shows that Wife presented evidence of the value of the business vehicle
and that the trial court included the value of the vehicle in its valuation of Wife's business.
{¶ 45} Husband's argument regarding depreciation is confined to a single sentence
without any explanation of the argument or facts or reasoning supporting the argument in
violation of App.R. 16(A)(7). Husband does not cite any caselaw or statutory authority for
the proposition that depreciation should be considered in valuing property. Although
depreciation may not be considered in determining a spouse's gross income for child
support purposes (see R.C. 3119.01), there is no such provision applicable to the valuation
of property. R.C. 3105.171 does not use the word "depreciation." See Tanagho v.
Tanagho, 10th Dist. Franklin No. 93AP-1089, 1993 Ohio App. LEXIS 6264, *17 (Dec. 30,
1993) (finding that the absence of the word "depreciation" from R.C. 3105.171 means that
the depreciation of a spouse's separately owned marital asset cannot be charged against
the marriage); Lowe v. Lowe, 4th Dist. Pickaway No. 10CA30, 2011-Ohio-3340, ¶ 24
(finding that reading the statute as including depreciation or lost value adds language that
is not there and alters the scope of the statute, which is the province of the General
Assembly, not an appellate court). We find no merit to Husband's argument.
{¶ 46} Husband next argues the trial court erred by valuing the Ghanaian properties
based upon the appraisal reports submitted by Wife. Specifically, Husband asserts that
Agyemang's appraisal of the Asikasu Farm and Tagoe's appraisal of the Clifton Gallery
condominiums are unreliable because the appraisers failed to determine ownership of these
assets, did not physically inspect the properties, and used the wrong valuation methods. At
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trial, Husband challenged the appraisers' valuation methodology and the reliability of their
reports through his own expert witness, Darkwa. Husband did not provide appraisals of the
properties.
{¶ 47} The testimony of the three expert witnesses/appraisers, and in particular that
of Darkwa, clearly established that property ownership records are maintained at Ghana's
Land Commission as long as both parties to a transaction register the transaction
documents with the Commission. While the records are "public," they are not searchable
without specific information. In order to request an ownership record, one must present a
site plan specifically describing the location and boundaries of the property at issue. Site
plans are not freely accessible and are generally provided by the owner of the property at
issue. In other words, without the cooperation or permission of the property owner, one
cannot verify the ownership of a property through the Land Commission. As discussed
above, Husband was in the best position to provide dispositive evidence of ownership or,
alternatively, documentation for Wife to search ownership through the Land Commission.
However, Husband repeatedly failed to submit evidence of ownership history of the
Ghanaian properties and refused to discuss the ownership of the Ghanaian properties at
trial. Husband's argument challenging Agyemang's and Tagoe's failure to establish the
ownership of the Asikasu Farm and the Clifton Gallery condominiums (and for that matter,
of the other Ghanaian properties) is disingenuous.
{¶ 48} The trial court valued the Ghanaian properties based upon the evidence
presented by the parties. Wife presented the appraisal reports and testimony of Agyemang
and Tagoe; Husband presented Darkwa's testimony. Darkwa was solely hired to review
the appraisal reports of Agyemang and Tagoe; he did not appraise the properties and
Husband did not present appraisal reports. In determining the valuation of an asset in a
divorce case, a trial court has discretion to weigh the testimony offered by the parties'
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valuation experts. See Hoag v. Stewart, 8th Dist. Cuyahoga No. 100951, 2014-Ohio-4090;
Martin v. Martin, 11th Dist. Trumbull No. 2105-T-0025, 2016-Ohio-7551 (the trial judge is
best able to view the witnesses and observe their demeanor, gestures, and voice inflections,
and use those observations in weighing the credibility of the testimony). We find no abuse
of discretion in the trial court's valuation of the Ghanaian properties.
{¶ 49} In light of the foregoing, the trial court did not abuse its discretion in
determining the value of the parties' assets located in the United States and Ghana.
Husband's third assignment of error is overruled.
{¶ 50} Assignment of Error No. 4:
{¶ 51} THE COURT FAILED TO ADDRESS AND ALLOCATE HUSBAND'S DEBTS
AND WIFE'S LIFE INSURANCE.
{¶ 52} Husband argues that the trial court failed to address and allocate Husband's
debts and the cash value of Wife's insurance policies in its property division.
{¶ 53} The record shows that Wife has two separate life insurance policies, one with
The Cincinnati Life Group Insurance Company with a cash surrender value of $7,947
(Exhibit 99), and one with National Life Group with a cash surrender value of $9,528.76
(Exhibit 100). Both exhibits were presented and admitted at trial. Wife concedes that the
trial court erred by not allocating the cash surrender values of her life insurance policies.
We therefore sustain Husband's fourth assignment of error regarding Wife's insurance
policies.
{¶ 54} At trial, Husband presented Exhibits S and TT as evidence of his debts. Both
exhibits were admitted. Exhibit TT is a list summarizing Husband's debts. Exhibit S is a
compilation of Husband's debts that includes: (1) a $57,690.09 judgment in favor of
American Express and against Husband and his Ghanaian company Adade; (2) Discover
Bank (credit card debt) for $15,681.44; (3) Wells Fargo Vendor Financial Services (rent
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payment default) for $112,687.95; (4) PNC Bank (credit card debt) for $10,334.58; (5)
Capital One Mastercard (credit card debt) for $8,919.07; (6) Liberty Mutual Insurance
(premium payments default) for $706.70; and (7) UC Health (medical debt) for $312.
Husband briefly testified about the debts above at trial. The debts were all incurred during
the duration of the marriage, which the trial court determined to be from August 10, 1992,
until May 20, 2022 (the date of the final hearing).
{¶ 55} In the divorce decree, the trial court found that Wife's three credit cards debts
were marital debts for which she was responsible, allocated the American Express debt to
Husband, and did not specifically address or allocate Husband's other debts above.2 The
decree further provided, "Husband retains liability for any debt he failed to disclose during
this process[.]" Likewise, the trial court's recapitulation table only lists and allocates
Husband/Adade American Express debt and Wife's credit cards debts.
{¶ 56} As stated above, the concepts related to "property" relate to both the parties'
assets and debts. Ohmer v. Renn-Ohmer, 12th Dist. Butler No. CA2012-02-020, 2013-
Ohio-330, ¶ 35. Marital debt includes any debt that is incurred during the marriage for the
joint benefit of the parties or for a valid marital purpose. Nichols-Ross v. Ross, 12th Dist.
Butler No. CA2008-03-090, 2009-Ohio-1723, ¶ 26. Husband's argument involves the
disposition of debts incurred during the marriage, not debts incurred after the date of the
divorce. Similar to assets, debts accumulated during the marriage are presumed to be
marital debts. Id. Accordingly, when a debt is incurred during the marriage, the burden is
on the party seeking to have the debt classified as separate debt to demonstrate by a
preponderance of the evidence that such debt was the separate obligation of the other
2. Wife's Exhibit 94 lists three separate American Express credit cards: Amex x74001 for $3,888.72; Amex –
Amazon x32006 for $139.63; and Amex – Macys x9740 for 358.06. In its divorce decree, the trial court
allocated only the larger American Express debt but incorrectly attributed that debt to account x9749 instead
of account x74001.
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spouse. Cooper, 2013-Ohio-4433 at ¶ 18.
{¶ 57} Both parties submitted exhibit evidence of their respective debts at trial, and
both briefly testified about their debts. In that regard, Wife's testimony was more succinct
than that of Husband. However, except for Husband/Adade's American Express debt, the
trial court did not address Husband's debts, did not determine whether they were marital or
separate debts, and did not allocate them in the divorce decree. In light of Husband's
testimony and exhibits, Husband's debts listed above do not constitute "debt he failed to
disclose during this process" pursuant to the divorce decree. The trial court, therefore,
erred by failing to address and allocate Husband's debts with Discover Bank, Wells Fargo
Vendor Financial Services, PNC Visa, Capital One Mastercard, Liberty Mutual Insurance,
and UC Health.
{¶ 58} Husband's fourth assignment is sustained.
{¶ 59} Assignment of Error No. 5:
{¶ 60} THE TRIAL COURT'S AWARD OF SPOUSAL SUPPORT WAS AN ABUSE
OF DISCRETION AS IT WAS NOT SUPPORTED BY THE FACTS AND WAS ORDERED
TO ENFORCE AN INEQUITABLE PROPERTY SETTLEMENT PAYMENT.
{¶ 61} The trial court ordered Husband to pay Wife $10 a year in spousal support
without a termination date. The trial court considered several factors set forth in R.C.
3105.18(C) before fashioning its award, including the parties' 29-year marriage, their
education, their respective income and earning abilities, the disparity in income, the parties'
standard of living during the marriage, the property division, and the relative assets and
liabilities of the parties. The trial court retained jurisdiction over the amount and duration of
spousal support. Concerned that Husband might not pay Wife the $922,591.13 property
equalization payment and $10,000 attorney fees award or might declare bankruptcy, the
trial court stated,
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Specifically, this Court will retain jurisdiction to enforce payment
of the property equalization and award of attorney fees,
including, but not limited to, the ability to determine [that] the
property payment is in the nature of maintenance, necessity or
support and is therefore nondischargeable in bankruptcy, and/or
making a future spousal support order, regardless of the
spousal support ordered therein.
{¶ 62} Husband challenges the trial court's spousal support order, arguing the trial
court (1) abused its discretion by failing to set a termination date, (2) significantly
undervalued Wife's income (by failing to consider her business, real estate holdings, and
other unspecified sources) and overvalued Husband's income (by failing to consider his
expenses associated with living abroad and his current unemployment), and (3) improperly
awarded spousal support for the purpose of securing Husband's payment of the property
equalization payment and attorney fees and protecting against Husband receiving a
discharge in bankruptcy. Husband specifically complains that the trial court was without
authority to find that the property equalization payment was in the nature of maintenance,
necessity, or support rendering it nondischargeable in bankruptcy.
{¶ 63} A trial court has broad discretion in determining spousal support awards.
Smith v. Smith, 12th Dist. Clermont No. CA2016-08-059, 2017-Ohio-7463, ¶ 24. A
reviewing court will not disturb a spousal support award on appeal absent an abuse of
discretion. Id. "A trial court has a statutory duty to base a spousal support order on a
careful and full balancing of the factors in R.C. 3105.18(C)(1)." Id. at ¶ 25. Pursuant to
R.C. 3105.18(C)(1), "the trial court must consider statutory factors such as income of the
parties, earning abilities of the parties, ages, duration of the marriage, standard of living
during the marriage, education of the parties, and assets of the parties. Id. A reviewing
court will presume each factor was considered, absent evidence to the contrary. Id.
{¶ 64} Husband does not develop any of the arguments he makes in this assignment
of error. App.R. 16(A)(7) provides that an appellant's brief must include "[a]n argument
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containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies." This court may
disregard an assignment of error if a party fails to identify in the record the error on which
the assignment of error is based, or fails to argue the assignment separately in the brief.
App.R. 12(A)(2); Stewart v. Vivian, 12th Dist. Clermont No. CA2015-05-039, 2016-Ohio-
2892, ¶ 112. The burden of affirmatively demonstrating error on appeal rests with the party
asserting error. Sparks v. Sparks, 12th Dist. Warren No. CA2010-10-096, 2011-Ohio-5746,
¶ 17. "It is not the duty of an appellate court to search the record for evidence to support
an appellant's argument as to any alleged error." Chambers v. Setzer, 12th Dist. Clermont
No. CA2015-10-078, 2016-Ohio-3219, ¶ 7.
{¶ 65} Husband does not explain why the lack of a termination date for the spousal
support award is an abuse of discretion. The divorce decree indicates that the trial court
retained jurisdiction over the duration of the spousal support. Moreover, R.C. 3105.18(B)
provides that a spousal support award terminates upon the death of either party, "unless
the order containing the award expressly provides otherwise," which is not the case here.
We find no abuse of discretion.
{¶ 66} Husband next claims that in determining the parties' respective income, the
trial court significantly undervalued Wife's income and overvalued his. Husband does not
support this argument with any citations to the record, caselaw, or statutory authority.
Husband refers only to Exhibit C, Husband's employment searches. In its decision, the trial
court explicitly stated that it considered several "factors of particular importance," including
the parties' respective income and earning abilities, the disparity in income, the property
division, and the relative assets and liabilities of the parties and allocation herein. We find
no abuse of discretion.
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{¶ 67} Regarding Husband's third argument, R.C. 3105.18(C)(1)(i) and (n) provide
that a trial court may consider "court-ordered payments by the parties" and "any other factor
the court expressly finds to be relevant and equitable" in deciding whether spousal support
is appropriate. The trial court found, and the record supports, that Husband sought to hide
assets, obfuscated the nature and extent of his interest in assets, in particular the Ghanaian
properties, and generally sought to avoid his marital responsibilities. Husband was ordered
to pay Wife over $900,000 to equalize the property distribution and there is good reason to
fear he will seek to avoid this obligation. Certainly, Husband's conduct during discovery
and the divorce proceedings is indicative of future risk. As stated above, R.C.
3105.18(C)(1)(i) specifically permits a trial court to consider "any court-ordered payments
by the parties," such as the property equalization payment order herein, as a factor in
determining if spousal support is appropriate and, if so, the amount and duration of spousal
support. Additionally, the trial court did not find that the property equalization payment and
attorney fees were in the nature of maintenance, necessity, or support as to be
nondischargeable in bankruptcy but only stated it would retain jurisdiction in that regard.
{¶ 68} In light of the foregoing, the trial court did not abuse its discretion in making
its spousal support determination. Husband's fifth assignment of error is overruled.
{¶ 69} Assignment of Error No. 6:
{¶ 70} THE TRIAL COURT ABUSED ITS DISCRETION WHEN RESERVING
JURISDICTION TO ORDER THE SALE OF 8194 MIST COURT OR "MAKE OTHER
ORDERS AS NECESSARY."
{¶ 71} To enforce Husband's obligation to pay Wife the property equalization
payment, the trial court "reserve[d] jurisdiction to order the sale of the [marital] home or
make other orders as necessary." Husband argues this violates R.C. 3105.171(I) because
it improperly modifies a final division of property without the consent of the parties. Wife
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argues that a trial court has the authority to reserve the future sale of real property as an
enforcement mechanism for an order.3
{¶ 72} R.C. 3105.171(I) provides, "A division or disbursement of property or a
distributive award made under this section is not subject to future modification by the court
except upon the express written consent or agreement to the modification by both spouses."
Once a trial court has made an equitable property division and issued a divorce decree, it
lacks jurisdiction to modify or amend the marital property division unless both spouses
expressly consent in writing to the modification. Pettit v. Pettit, 12th Dist. Fayette No.
CA2011-08-018, 2012-Ohio-1801, ¶ 58; R.C. 3105.171(I). Stated another way, a trial court
has control over the division of property at the time of the divorce decree; once the trial
court divides the marital property and enters the final decree of divorce, the judgment is
final and the court no longer possesses jurisdiction over the division of marital assets.
Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 38; Holden v. Holden,
12th Dist. Brown No. CA2015-07-016, 2016-Ohio-5557, ¶ 34. A trial court cannot overcome
this rule by an explicit reservation of continuing jurisdiction. Abate v. Abate, 9th Dist.
Summit No. 19560, 2000 Ohio App. LEXIS 1268, *11 (Mar. 29, 2000). However, a trial
court always retains full power to enforce the provisions of a divorce decree. Pettit at ¶ 58;
Cherry v. Figart, 86 Ohio App.3d 123, 126 (12th Dist.1993).
{¶ 73} In the present case, the trial court retained jurisdiction to order the sale of the
marital home, which was allocated to Husband, or make other orders as necessary in the
event Husband does not pay Wife the property equalization payment. Pursuant to its
3. We note that R.C. 3105.171(J)(2) authorizes a trial court to issue "[a]n order requiring the sale or
encumbrancing of any real or personal property, with the proceeds from the sale and the funds from any loan
secured by the encumbrance to be applied as determined by the court." This subdivision of R.C. 3105.171
authorizes the sale of property as an aid to making an equitable property division in the first instance, not to
order the sale of property which the trial court has already divided pursuant to a final decree of divorce. See,
e.g., Perozeni v. Perozeni, 8th Dist. Cuyahoga No. 111771, 2023-Ohio-1140; Oliver v. Oliver, 12th Dist. Butler
No. CA2011-01-004, 2011-Ohio-6345.
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Butler CA2022-12-119
reservation of jurisdiction, the trial court's obvious intention was to order the marital home
sold and transfer some amount of the sale proceeds to Wife to offset what Husband owed
her. In other words, the trial court retained jurisdiction to allocate property to Wife which it
had allocated to Husband in the final decree of divorce. We find this reservation of
jurisdiction is in conflict with the legislature's clear mandate that courts do not retain
jurisdiction to modify a final property division. Pettit at ¶ 60; Schiavone v. Schiavone, 126
Ohio App.3d 780, 782 (12th Dist.1998). Once the trial court issued its divorce decree, the
manner by which the property was divided was fully adjudicated and cannot be modified.
Id.
{¶ 74} While the trial court retains jurisdiction to administer and enforce the property
division, it abused its discretion by retaining jurisdiction to modify the property division.
Accordingly, we sustain Husband's sixth assignment of error and reverse the trial court's
judgment to the extent it attempts to reserve jurisdiction to modify the property division. The
matter is remanded to the trial court with instructions to remove the following language from
the final divorce decree under the "19. Financial Misconduct" heading: "In the event
Husband refuses to pay Wife the equalization payment, the Court reserves jurisdiction to
order the sale of the home at 8194 Sea Mist Court or make other orders as necessary."
See Holden, 2016-Ohio-5557 at ¶ 36.
{¶ 75} Assignment of Error No. 7:
{¶ 76} THE TRIAL COURT ERRED IN MAKING A FINDING OF FINANCIAL
MISCONDUCT AGAINST HUSBAND.
{¶ 77} The trial court found that Husband engaged in financial misconduct during the
marriage and divorce proceedings as follows:
Wife presented overwhelming evidence as to Husband's
financial misconduct. She was persuasive in showing that
Husband * * * substantially and willfully failed to disclose
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Butler CA2022-12-119
property and income to Wife. Husband engaged in dissipation,
concealment or fraudulent disposition of assets causing
additional time, resources, expenses, fees and aggravation for
Wife.4
Husband challenges the trial court's financial misconduct finding, arguing it does not fall
under the statutory definition of financial misconduct and is against the manifest weight of
the evidence.
{¶ 78} An appellate court employs the manifest-weight-of-the-evidence standard
when reviewing a trial court's determination that a party engaged in financial misconduct.
Robinson v. Robinson, 12th Dist. Warren No. CA2012-11-118, 2013-Ohio-4435, ¶ 14. The
reviewing court weighs the evidence and all reasonable inferences, considers the credibility
of witnesses, and determines whether in resolving conflicts in the evidence, the finder of
fact "clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial ordered." Smith, 2017-Ohio-7463 at ¶ 10. The
burden of proving financial misconduct is on the complaining party. Id.
{¶ 79} Pursuant to R.C. 3105.171(E)(4), financial misconduct includes, but is not
limited to, "the dissipation, destruction, concealment, nondisclosure, or fraudulent
disposition of assets." Financial misconduct implies some type of wrongdoing such as
interference with the other spouse's property rights. Garcia v. Samano, 12th Dist. Butler
No. CA2018-05-094, 2019-Ohio-3223, ¶ 19. In cases of financial misconduct, "'typically,
the offending spouse * * * either profit[s] from the misconduct or intentionally defeat[s] the
other spouse's distribution of marital assets.'" Id., quoting Taub v. Taub, 10th Dist. Franklin
No. 08AP-750, 2009-Ohio-2762, ¶ 33. Upon finding financial misconduct, the trial court
4. In discussing Husband's failure to cooperate with discovery, the trial court's decision states, "[Husband]
retained counsel twice and both attorneys withdrew due to his lack of assistance." The record shows that
Husband's prior attorneys withdrew, in large part, due to his failure or inability to pay his legal bills. It is not
apparent from the record or from the attorneys' motions to withdraw that they withdrew due to Husband's lack
of assistance.
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"may compensate the offended spouse with a distributive award or with a greater award of
marital property." R.C. 3105.171(E)(4).
{¶ 80} Upon thoroughly reviewing the record, we find the trial court did not err by
finding Husband engaged in financial misconduct.
{¶ 81} Contrary to Husband's assertion, the definition of financial misconduct under
R.C. 3105.171(E)(4) is not limited simply to "the dissipation, destruction, concealment,
nondisclosure, or fraudulent disposition of assets," and may include misconduct in
responding to discovery. The divorce proceedings began in September 2020; the record
shows that discovery was still pending in January 2022. The record further shows that
throughout the proceedings, Husband sought to conceal assets he owned, obfuscated the
nature and extent of his interest in assets, in particular the Ghanaian properties, and
generally provided nonresponsive, selective, or incomplete responses to discovery
requests, despite the fact Husband's response to discovery requests was discussed with
the trial court on several occasions.
{¶ 82} Nevertheless, Husband asserts that the fact Wife's exhibits included some of
Husband's bank accounts "demonstrate[s] Husband provided substantial documentation."
However, these records were obtained via subpoenas. Just because Wife was able to
discover concealed assets does not mean Husband did not engage in financial misconduct
to conceal the assets, nor does it relieve him of his responsibility to engage in discovery in
good faith, promptly, and honestly.
{¶ 83} In a September 2021 decision, the trial court described Husband's testimony
regarding his assets and earnings as "careful" and "often times evasive." In its August 31,
2022 divorce decision, the trial court found that Husband's "unmitigated and continued
failure to cooperate with discovery and disclosure of assets [was] inexcusable," his
"repeated failure to comply with discovery orders" was willful, and his "intent on following
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Butler CA2022-12-119
only select orders and his failure to fully comply with court orders * * * frustrated the
process." Explaining, the trial court stated,
During the trial, Husband was often hostile to the proceedings.
When asked about exhibits, Husband makes claim of document
fraud and falsification unless the document suits his narrative.
Not only did he fail to cooperate with mandatory disclosure of
income and property, his actions throughout the divorce show a
clear determination to conceal and obfuscate the nature and
extent of interest in property. Husband demonstrated open
dishonesty and lack of credibility.
{¶ 84} The trial court is in the best position to evaluate evidence and assess the
credibility of witnesses. Wei, 2003-Ohio-6253 at ¶ 27. The trial court, in its discretion, found
the testimony of Wife to be credible and that of Husband to be not credible. Upon review
of the evidence presented, we find the trial court's finding Husband engaged in financial
misconduct is not against the manifest weight of the evidence.
{¶ 85} Husband's seventh assignment of error is overruled.
{¶ 86} Assignment of Error No. 8:
{¶ 87} THE TRIAL COURT ABUSED ITS DISCRETION WHEN AWARDING
ATTORNEY FEES TO WIFE.
{¶ 88} Husband argues the trial court abused its discretion by awarding attorney fees
to Wife because Wife has significant income and assets whereas he was unemployed at
the time of the divorce trial and presented evidence of his attorney fees debts and inability
to pay. Husband asserts that the party seeking attorney fees "must establish (1) some
financial need for the award and (2) the demand for attorney fees is reasonable under the
circumstances." In support of his argument, Husband cites Nori v. Nori, 58 Ohio App.3d 69
(12th Dist.1989).
{¶ 89} Pursuant to R.C. 3105.73(A), a trial court "may award all or part of reasonable
attorney's fees and litigation expenses to either party if the court finds the award equitable."
- 26 -
Butler CA2022-12-119
"In determining whether the award is equitable, the court may consider the parties' marital
assets and income, any award of temporary spousal support, the conduct of the parties,
and any other relevant factors the court deems appropriate." Id. An award of attorney fees
is within the discretion of the trial court and will not be reversed on appeal absent an abuse
of discretion. Hurst v. Hurst, 12th Dist. Butler No. CA2019-07-119, 2020-Ohio-4006, ¶ 28.
{¶ 90} A review of Nori and the cases it relies upon shows that the two-part test cited
by Husband refers to awards of attorney fees made under R.C. 3105.18, and not under
R.C. 3105.73 as was the case here. See Nori, 58 Ohio App.3d at 75, citing Kramer v.
Kramer, 12th Dist. Clermont No. CA87-02-014, 1987 Ohio App. LEXIS 9901 (Dec. 7, 1987),
citing Swanson v. Swanson, 48 Ohio App.2d 85 (8th Dist.1976). The two-part test in Nori
is therefore not applicable here.
{¶ 91} The trial court awarded attorney fees to Wife, stating, "The Court considers
the facts as presented at trial and in particular the significant delays and unnecessary
litigation and conduct of [Husband]. After reviewing the factors set forth in R.C. 3105.73, in
light of the facts set forth in this decision, the Court finds an award of reasonable attorney
fees to Wife in the amount of $10,000 to be equitable."
{¶ 92} At trial, Wife testified that because of Husband's failure to provide information
or access to information about assets in Ghana, she had to hire a private investigator, an
attorney, and surveyors and appraisers, thereby costing her $15,000. She further testified
that Husband's response to discovery and the fact he constantly sent emails to her attorney
resulted in a difficult and extremely expensive litigation.
{¶ 93} The trial court's consideration of Husband's conduct during discovery and the
divorce trial was appropriate. See Hurst, 2020-Ohio-4006 at ¶ 33. The record supports the
trial court's determination that Husband's lack of diligence and failure to fully comply with
discovery orders, his evasive answers regarding the Ghanaian properties, and his
- 27 -
Butler CA2022-12-119
unsubstantiated claims that several of Wife's exhibits were falsified and fraudulent unless
the documents suited his narrative caused significant delays and unnecessary litigation and
expenses. Had Husband reasonably cooperated during discovery and been forthcoming
with the Ghanaian properties and in his answers on cross-examination, this case could have
been resolved more quickly and Wife would not have been required to hire attorneys and
investigators in Ghana to obtain the necessary information and documentation regarding
Husband's ownership of properties in Ghana.
{¶ 94} The trial court did not abuse its discretion in awarding Wife $10,000 in attorney
fees.
{¶ 95} Husband's eighth assignment of error is overruled.
{¶ 96} Assignment of Error No. 9:
{¶ 97} THE TRIAL COURT'S CUMULATIVE ERROR OPERATED TO DENY
DEFENDANT DUE PROCESS AND A FAIR TRIAL.
{¶ 98} Husband argues that the cumulative effect of the trial court's numerous errors
resulted in a final judgment entry/divorce decree that was neither fair nor equitable toward
him, thereby warranting a new trial.
{¶ 99} Pursuant to the cumulative error doctrine, "a conviction will be reversed where
the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a
fair trial even though each of numerous instances of trial court error does not individually
constitute cause for reversal." State v. Garner, 74 Ohio St.3d 49, 64, 1995-Ohio-168. This
court has previously noted its reluctance to apply the cumulative error doctrine in civil cases.
See Nationwide Agribusiness Ins. Co. v. Heidler, 12th Dist. Clinton Nos. CA2018-06-003,
CA2018-07-004, CA2018-09-012, and CA2018-09-015, 2019-Ohio-4311, ¶ 66; Allen v.
Summe, 12th Dist. Butler No. CA92-04-067, 1993 Ohio App. LEXIS 2553, *3 (May 17,
1993). However, even setting aside such reluctance, the cumulative error doctrine is not
- 28 -
Butler CA2022-12-119
applicable to cases where there has not been a finding of multiple instances of harmless
error. Nationwide at id. Harmless or nonprejudicial errors cannot become prejudicial by
sheer weight of numbers alone. State v. Wilson, 12th Dist. Warren No. CA2018-03-022,
2019-Ohio-338, ¶ 25.
{¶ 100} This court has sustained Husband's fourth and sixth assignments of error
and will remand the case for the trial court to allocate the cash value of Wife's insurance
policies, address and allocate six of Husband's debts, and strike language from the divorce
decree. Nonetheless, we find that the cumulative error doctrine is inapplicable here
because the errors combined here do not require a new trial. See Snell v. Snell, 5th Dist.
Richmond No. 13CA80, 2014-Ohio-3285; Bigler v. Personal Serv. Ins. Co., 7th Dist.
Belmont No. 12 BE 10, 2014-Ohio-1467.
{¶ 101} Husband's ninth assignment of error is overruled.
{¶ 102} Judgment affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.
S. POWELL , P.J., and HENDRICKSON, J., concur.
- 29 -
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"4",
"11",
"12",
"13",
"16",
"18",
"19",
"22"
]
Law
9882860
[SEGMENT 1]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0096
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
MONTEZ WILLIAMS,
Trial Court No. 2021 CR 00061
Defendant-Appellant.
OPINION
Decided: May 28, 2024
Judgment: Reversed and remanded
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Richard E. Hackerd, 55 Public Square, Suite 2100, Cleveland, OH 44113 (For
Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Montez Williams (“appellant”), appeals from the
judgment of the Trumbull County Court of Common Pleas revoking his community control
sanctions and imposing consecutive prison terms and the State concedes error. For the
following reasons, we reverse and remand this matter for resentencing consistent with
this opinion.
{¶2} On March 3, 2021, the Trumbull County Grand Jury returned a two-count
indictment charging appellant with improperly handling firearms in a motor vehicle, a felony of the fourth degree, pursuant to R.C. 2923.16(B) and (I) (“Count 1”), and having
weapons while under disability, a felony of the third degree, pursuant to R.C.
2923.13(A)(2) and (B) (“Count 2”).1
{¶3} Appellant entered a plea of not guilty at arraignment on March 11, 2021,
and a personal/unsecured appearance bond in the amount of $3,500 was set subject to
pretrial release conditions.
{¶4} On July 22, 2021, appellant appeared with counsel, waived his rights, and
entered a plea of guilty to Count 1 of the indictment, improperly handling firearms in a
motor vehicle, a felony of the fourth degree, in violation of R.C. 2923.16(B) and (I). The
remaining charge was dismissed. Appellant agreed to forfeit the firearm, a Taurus 9mm,
semi-automatic handgun, and any ammunition. A presentence investigation (“PSI”) was
ordered.
{¶5} A sentencing hearing was held on September 16, 2021. According to the
sentencing entry, appellant was sentenced to community control sanctions for a period of
five (5) years subject to specific conditions and sanctions. The entry further provides that
appellant was advised by the trial court that if he violated “any law of any jurisdiction in
the United States; any rule of the Department of Community Control; or, any condition of
any sanction imposed upon him” that the trial court could impose a more restrictive
sanction including a prison term of 18 months.
{¶6} Transcripts of the initial plea hearing and initial sentencing are not part of
the record on appeal.
1. This case was bound over from the Warren Municipal Court on January 27, 2021, in Case No. [CITATION].
Case No. 2023-T-0096 {¶7} A probation warrant was issued on February 8, 2022. A review of the record
in this case shows the warrant was recalled on August 8, 2023.
{¶8} A hearing on the community control violations was held on October 19,
2023. At the hearing, appellant appeared with counsel, admitted the violations, and
waived a hearing. The trial court found appellant violated the terms of his community
control. The trial court proceeded directly to sentencing and sentenced appellant “to serve
a sentence of 18 months consecutive to all other charges.” The judgment entry on
sentencing further specifies that appellant “shall serve a prison term of eighteen (18)
months * * * consecutively to Trumbull County Court of Common Pleas case number 2022
CR 078.”
{¶9} Appellant timely appeals and raises a single assignment of error: ”[t]he Trial
Court committed reversible error when it imposed consecutive sentences without any
findings in support.” Specifically, appellant asserts that the trial court failed to make the
requisite findings when it imposed consecutive sentences. We agree.
{¶10} “R.C. 2953.08(G) governs our review of felony sentences, and provides, in
relevant part, that after an appellate court’s review of the record, it ‘may increase, reduce,
or otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence is *
* * contrary to law.’” [CITATION]
{¶11} “‘[A] sentence is contrary to law when it does not fall within the statutory
range for the offense or if the trial court fails to consider the purposes and principles of
Case No. 2023-T-0096 felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12.’” (Citations omitted). Id.
{¶12} When imposing a sentence of community control sanctions, the sentencing
court must notify the offender of the specific prison term that may be imposed for a
violation of the conditions of the sanction at the time of the sentencing. [CITATION],
¶ 29. The Ohio Supreme Court
has concluded “that a reserved prison term may be ordered to be served consecutively
to any other sentence at a community-control-revocation hearing if notice was given when
the prison term was reserved that the term could be required to be served consecutively
to another prison term at the time of revocation.” [CITATION], ¶ 15.
{¶13} When imposing consecutive sentences, “‘a trial court is required to make
the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
its findings into its sentencing entry, but it has no obligation to state reasons to support
its findings.’” (Emphasis added). [CITATION], ¶ 27, quoting [CITATION], ¶ 37.
{¶14} R.C. 2929.14(C)(4) states:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
Case No. 2023-T-0096 (a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section
.16, 2929.17, or 2929.18 of the Revised Code, or was
under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶15} “The trial court is not required ‘to give a talismanic incantation of the words
of the statute, provided that the necessary findings can be found in the record and are
incorporated into the sentencing entry.’ [CITATION] Otherwise, ‘the imposition of
consecutive sentences * * * is contrary to law.’ [CITATION]
{¶16} Upon revoking appellant’s community control, the trial court imposed a
prison term and ordered it to be served consecutively to the sentence imposed in another
case by another judge. The trial court failed to make the consecutive findings at the
hearing when it revoked appellant’s community control sanctions and sentenced
appellant to consecutive prison terms. Therefore, consecutive sentences were not
properly imposed and this matter must be remanded to trial court for resentencing. [CITATION]
{¶17} Because the transcripts of the initial plea and sentencing are not part of the
record in this case, it is unclear from the current record whether the trial court advised
Case No. 2023-T-0096 appellant that the reserved sentence could be ordered to be served consecutively to
another sentence.
{¶18} Appellant’s sole assignment of error is sustained.
{¶19} For the foregoing reasons, we reverse the judgment of the Trumbull County
Court of Common Pleas and remand this matter for resentencing consistent with this
opinion.
EUGENE A. LUCCI, P.J.,
MARY JANE TRAPP, J.,
concur.
Case No. 2023-T-0096
[SEGMENT 2]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0094
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
JEREMY M. FEIDLER,
Trial Court No. 2022 CR 00705
Defendant-Appellant.
OPINION
Decided: May 28, 2024
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Michael A. Partlow, P.O. Box 1562, Stow, OH 44224 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Jeremy Feidler (“appellant”), appeals from the
judgment of the Trumbull County Court of Common Pleas sentencing appellant to
consecutive prison terms on his convictions of vandalism and aggravated menacing. For
the following reasons, we affirm.
{¶2} On October 12, 2022, the Trumbull County Grand Jury returned a three-
count indictment charging appellant with vandalism, a fourth-degree felony in violation of R.C. 2909.05(B)(2) and (E) (“Count 1”), and two counts of aggravated menacing, fifth-
degree felonies, in violation of R.C. 2903.21(A) and (B) (“Counts 2 and 3”).1
{¶3} Appellant entered a plea of not guilty at arraignment on October 25, 2022.
No bond was set.
{¶4} On November 2, 2022, appellant filed a motion for leave to file plea of not
guilty by reason of insanity. A competency evaluation was ordered on January 19, 2023.
A competency hearing was held on March 2, 2023. The State and appellant stipulated to
the competency report submitted by the Forensic Psychiatric Center of Northeast Ohio,
Inc. On March 7, 2023, the trial court concluded that appellant was incapable of
understanding the nature and objectives of the proceedings or assisting in his own
defense due to his mental condition at the time, but there was a substantial probability
that appellant would become capable within six months with a course of treatment.
Appellant was committed to Heartland Behavioral Healthcare for treatment.
{¶5} On June 29, 2023, a second competency hearing was held. The parties
stipulated to the report filed by Heartland Behavioral Healthcare. The trial court found
appellant to be competent to stand trial.
{¶6} On September 14, 2023, appellant appeared with counsel, waived his
rights, and entered a plea of guilty to Counts 1 and 2 as charged in the indictment. The
remaining charge was dismissed. A presentence investigation (“PSI”) was ordered.
{¶7} A sentencing hearing was held on October 19, 2023. The trial court
sentenced appellant to a prison term of eighteen months on Count 1 and a prison term of
1. This case was bound over from the Warren Municipal Court on September 16, 2022, in Case No. [CITATION].
Case No. [CITATION] twelve months on Count 2. The sentences were ordered to be served consecutively to
each other for an aggregate prison term of 30 months.
{¶8} Appellant timely appeals and raises a single assignment of error: “[t]he trial
court erred by sentencing appellant to two terms of imprisonment, to be served
consecutively with one another, as the record does not support such a sentence.” We
disagree.
{¶9} “R.C. 2953.08(G) governs our review of felony sentences, and provides, in
relevant part, that after an appellate court’s review of the record, it ‘may increase, reduce,
or otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence is *
* * contrary to law.’” [CITATION]
See [CITATION]. “‘[A]
sentence is contrary to law when it does not fall within the statutory range for the offense
or if the trial court fails to consider the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.’” Id., at ¶ 10,
quoting [CITATION]
{¶10} The Supreme Court of Ohio has held that while “R.C. 2953.08(G)(2)(a)
permits an appellate court to modify or vacate a sentence if it clearly and convincingly
finds that ‘the record does not support the sentencing court's findings under’ certain
specified statutory provisions. But R.C. 2929.11 and 2929.12 are not among the statutory
provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D),
2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.” [CITATION]
Case No. 2023-T-0094 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 28. “R.C. 2953.08(G)(2)(b) therefore does not
provide a basis for an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” Id. at
¶ 39. See also [CITATION], ¶ 13.
{¶11} Appellant asserts that the “standard for felony sentencing essentially
amounts to no review at all, assuming a trial court stays within whatever sentencing range
is established by statute.” This Court has previously viewed such claim “as a challenge
to the constitutionality of R.C. 2953.08(G)(2)(a) or Ohio's high court ruling in Jones.” [CITATION], ¶ 13. We have
consistently rejected this claim and agreed with Justice Fischer's concurring opinion in
[CITATION], ¶ 9.
{¶12} Appellant's argument essentially asks this Court to review whether the
record supported the trial court's decision to impose a prison term rather than a
community control sanction, which this Court is not permitted to do. [CITATION], at ¶ 39. However, the trial court’s imposition of consecutive sentencing is reviewable
under R.C. 2953.08(G)(2).
{¶13} There is a statutory presumption in favor of concurrent sentences. R.C.
2929.41(A). However, R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
Case No. 2023-T-0094 offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section
.16, 2929.17, or 2929.18 of the Revised Code, or was
under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶14} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” [CITATION], ¶ 37. Additionally, “as long as the reviewing court can discern that the trial
court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.
“In other words, ‘if the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we “clearly and
convincingly” find “[t]hat the record does not support the court's findings[.]”’” [CITATION], ¶ 48, quoting [CITATION], ¶ 19 (8th Dist.), quoting R.C. 2953.08(G)(2)(a). See
[SEGMENT 3]
[CITATION], ¶ 28.
Case No. 2023-T-0094 {¶15} During the sentencing hearing, the trial court stated in relevant part:
[The] Court has considered the overring principles and
purposes of felony sentencing, further has considered all
relevant seriousness and recidivism factors. The Court finds
the sentence shall be proportional to the Defendant’s conduct
as well as consistent with similarly situated offenders.
***
Pursuant to Revised Code Section 2929.14, Court finds it is
necessary to protect the public from future crime by the
defendant, that he has serious criminal history, that due to the
conduct of the defendant a single prison term would not
adequately reflect the seriousness of the conduct of the
defendant and its necessary to protect the public to have
consecutive sentences.
{¶16} These findings were incorporated in the sentencing entry which provides
in relevant part: “[t]he Court finds that consecutive service is necessary to protect the
public from future crime and to punish the Defendant, and that consecutive sentences are
not disproportionate to the seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public. Further, the Court finds that the Defendant’s history of
criminal conduct demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender.”
{¶17} The trial court’s findings are supported by the record. Therefore, the trial
court’s imposition of consecutive sentences complies with R.C. 2929.14(C)(4) and the
sentences are not otherwise contrary to law. As such, appellant’s sole assignment of error
is without merit.
{¶18} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is affirmed.
Case No. 2023-T-0094 EUGENE A. LUCCI, P.J.,
MARY JANE TRAPP, J.,
concur.
Case No. 2023-T-0094
[CITATION]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0102
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
SAY'QUAN PARKS,
Trial Court No. 2023 CR 00452
Defendant-Appellant.
OPINION
Decided: April 29, 2024
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Christopher P. Lacich, Roth Blair Roberts Strasfield & Lodge, 100 East Federal Street,
Suite 600, Youngstown, OH 44503 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Appellant, Say’Quan Parks, appeals the sentences imposed by the
Trumbull County Court of Common Pleas on his convictions of two counts of Improperly
Discharging a Firearm at or into a Habitation, second-degree felonies, with firearm
specifications, five counts of Felonious Assault, second-degree felonies, with firearm
specifications, and Improperly Handling Firearms in a Motor Vehicle, a fourth-degree
felony. For the following reasons, we affirm.
{¶2} On August 3, 2024, the Trumbull County Grand Jury returned a ten-count
indictment charging appellant with two counts of Improperly Discharging a Firearm at or into a Habitation, second-degree felonies, with firearm specifications, in violation of R.C.
2923.161(A)(1)&(C) and R.C. 2941.145 (Counts 1 and 7); seven counts of Felonious
Assault, second-degree felonies, with firearm specifications, in violation of R.C.
2903.11(A)(2) and (D)(1)(a) and R.C. 2941.145 (Counts 2, 3, 4, 5, 6, 8, and 9); and
Improperly Handling Firearms in a Motor Vehicle, a fourth-degree felony, in violation of
R.C. 2923.16(A) and (I) (Count 10).1 Appellant pleaded not guilty to the charges at
arraignment. No bond was set.
{¶3} On October 26, 2023, appellant appeared with counsel, waived his rights,
and entered guilty pleas to two counts of Improperly Discharging a Firearm at or into a
Habitation, second-degree felonies, with firearm specifications, five counts of Felonious
Assault, second-degree felonies, with firearm specifications, and Improperly Handling
Firearms in a Motor Vehicle, a fourth-degree felony, Counts 1, 2, 3, 6, 7, 8, 9, and 10.
{¶4} The State provided the following factual basis:
On or about [June 18, 2023] * * *, in Trumbull County and
State of Ohio, this defendant did fire the 9-millimeter handgun
indicated in the indictment at an unknown male in the parking
lot of the Big Apple convenience store located in Warren City
at least 23 times. In doing so, he struck a nearby white 2018
Volkswagen Passat, almost striking a Raquel Mostella who
was in that motor vehicle.
The defendant also fired into 876 Kenilworth Avenue, where
he struck the minor female victim, date of birth 12-20-2013, in
the right forearm, causing extensive damage to the bones
located in her forearm.
He also narrowly missed a minor female, date of birth 9-13-
, and a Misti Taylor * * * [in that residence].
1. On June 29, 2023, this case was bound over from the Warren Municipal Court in Case No, [CITATION].
Case No. [CITATION]
====== End of Document ====== He also fired into 877 Kenilworth Avenue, where he narrowly
or nearly shot a JoAnne DeVerna, who was a resident of that
residence.
Many of these shots were also fired from or on a motor
vehicle.
{¶5} As a result of the plea, the State nolled Counts 4 and 5 of the indictment
and appellant forfeited a Glock 19x, semiautomatic 9mm handgun, Serial No. BVHV497.
A presentence investigation (“PSI”) was ordered and bond revoked.
{¶6} On December 5, 2023, appellant was sentenced to an aggregate minimum
prison term of 25 1/2 years to a maximum of 29 1/2 years plus fines and costs.
Specifically, appellant was sentenced to a minimum of eight years to a maximum of 12
years on Count 1, with an additional term of three years on the firearm specification to be
served prior to and consecutively to the underlying sentence; a term of six years on Count
7, to be served concurrently to all other counts, with an additional term of three years on
the firearm specification to be served prior to and consecutively to the underlying offense
and all other Counts; a term of seven years on Count 2 to be served consecutively to all
other counts, with an additional three-year prison term on the firearm specification to be
served prior to and consecutively to the underlying offense and all other counts; a term of
eight years on each count, Counts 3, 6, 8 and 9 to each count to be served concurrently
to each other and all other counts and an additional three years on each attached firearm
specification to be served concurrently to each other and all other counts; and a term of
18 months on Count 10 to be served consecutively to all other counts.
{¶7} Appellant timely appeals and raises the following assignment of error for
review: “The trial court erred and imposed a sentence clearly and convincingly contrary
to law, by issuing an indeterminate, consecutive sentence to Appellant in the aggregate
Case No. 2023-T-0102 of a minimum of 25 and 1/2 years and a maximum of 29 and 1/2 years, plus fines and
costs. (T.d. 14).”
{¶8} Specifically, appellant argues in his brief that his sentence is excessive and
unreasonable, “where apparently the fact that Appellant at 22 years of age had pled guilty,
spared the State and victims of a trial, preserved judicial economy, and expressed sincere
remorse at sentencing, was given little if any weight in the ultimate sentence he received.”
{¶9} We review felony sentencing pursuant to R.C. 2953.08(G)(2), which
provides:
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court's standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the
following:
[SEGMENT 4]
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶10} While R.C. 2953.08(G)(2)(a) allows a reviewing court to modify or vacate a
sentence, that ability is limited to certain specified statutory provisions. Findings made
pursuant to R.C. 2929.11 and 2929.12 are not among those statutory provisions listed in
R.C. 2953.08(G)(2)(a). [CITATION]. “R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an appellate
court to modify or vacate a sentence based on its view that the sentence is not supported
Case No. 2023-T-0102 by the record under R.C. 2929.11 and 2929.12. Id. at ¶ 39. See also [CITATION].
{¶11} Appellant argues that that “the appeal of a sentence such as his, in effect,
[is] illusory: the Appellate Court having no power to intervene and fashion a more
reasonable sentence . . .” Appellant’s brief at 7. This Court, as it is required to do, has
followed the direction of the Supreme Court of Ohio: “’This court's holding today specifies
what an appellate court may not do under this provision: it may not conduct an
independent review of whether the record supports the sentence and substitute its own
judgment regarding the appropriate sentence.’” [CITATION] quoting [CITATION]. There is nothing in the record to suggest that appellant’s sentence is
contrary to law. Each individual sentence is within the statutory guidelines.
{¶12} Because certain sentences were ordered or were required to be served
consecutively, appellant asserts the aggregate sentence as excessive or unreasonable.
There is a statutory presumption in favor of concurrent sentences. R.C. 2929.41(A).
However, R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
Case No. 2023-T-0102 2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶13} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” [CITATION] Additionally, “as long as the reviewing court can discern that the trial
court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.” [CITATION]
In other words, “‘if the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we “clearly and
convincingly” find “[t]hat the record does not support the court's findings[.]”’” [CITATION] See
[CITATION]
{¶14} During the sentencing hearing, the trial court stated:
Case No. 2023-T-0102 “[The] Court has considered the overriding principles and
purposes of felony sentencing, and * * * has considered all
relevant seriousness and recidivism factors.
***
[The] Court finds it is necessary to protect the public from
future crime by the defendant; that consecutive sentences are
not disproportionate to the seriousness of the offender’s
conduct, in permanently injuring a nine-year old girl; one or
more of the offenses were committed while multiple other
offenses were pending. Due to the conduct of the defendant
in putting - - any time you put a gun in your hand and you want
to take that and discharge it, you’ve got to accept
responsibility for everything that happens from that.
***
So you have been multiple times in the criminal justice
system, and you were warned many times, you’re forbidden
from owning or possessing a gun, and you chose to pick one
up anyway; correct?
***
Conduct of the defendant demonstrates that a single prison
term would not adequately reflect the seriousness of the
conduct; defendant’s criminal history demonstrates
consecutive sentences are necessary.
{¶15} These findings were incorporated in the sentencing entry. Specifically, the
trial court “considered the record, oral statements, the pre-sentence investigation and any
victim impact statements, as well as the principles and purposes of sentencing under R.C.
2929.11, and has balanced the seriousness and recidivism factors of R.C. 2929.12.” The
trial court determined:
[T]hat consecutive service is necessary to protect the public
from future crime and to punish the Defendant, and that
consecutive sentences are not disproportionate to the
seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public. Further the Court finds the
Defendant’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public
from future crime by the offender and that no single prison
term for any of the offenses committed adequately reflects the
seriousness of the offender’s conduct.
Case No. [CITATION] {¶16} Appellant was 22 years old at the time of sentencing. At the hearing, the
trial court noted appellant’s prior criminal history beginning at age 17 which included
charges for possession of drugs, criminal damaging, two convictions of domestic
violence, assault, failure to comply with the order or signal of a police officer, criminal
trespassing, obstruction of official business, weapons under disability, and the underlying
charges.
{¶17} Upon review of the record in this case, the record supports the trial court’s
determination. The individually imposed sentences were within the statutory guidelines,
the trial court considered the statutory mandates, and imposed consecutive sentences.
The trial court made the required findings to impose consecutive sentences. R.C.
2929.14(C)(4). Accordingly, appellant’s sole assignment of error is without merit.
{¶18} Finding appellant’s assignment of error to be without merit, we affirm the
judgment of the Trumbull County Court of Common Pleas.
EUGENE A. LUCCI, P.J.,
MATT LYNCH, J.,
concur.
Case No. 2023-T-0102
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2023-P-0065
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
NICK M. STOKEL,
Trial Court No. 2020 CR 00547
Defendant-Appellant.
OPINION
Decided: March 11, 2024
Judgment: Reversed and remanded
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
Donald K. Pond, Jr., 567 East Turkeyfoot Lake Road, Suite 107, Akron, OH 44319 (For
Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Nick M. Stokel (“appellant”), appeals from the
judgment of the Portage County Court of Common Pleas revoking his community control
sanctions and imposing consecutive prison terms. For the following reasons, we reverse
and remand for resentencing consistent with this opinion.
{¶2} On July 23, 2020, the Portage County Grand Jury returned a four-count
indictment charging appellant with felonious assault, a second degree felony, with a
[SEGMENT 5]
firearm specification, pursuant to R.C. 2903.11, 2929.14, 2941.141 (“Count 1”); having
weapons under disability, a third degree felony, in violation of R.C. 2923.13 (“Count 2”); carrying concealed weapon, a fourth degree felony, in violation of R.C. 2923.12 (“Count
3”); and, improperly handling of a firearm in a motor vehicle, a fourth degree felony, in
violation of R.C. 2923.16 (“Count 4”).
{¶3} Appellant entered a plea of not guilty at arraignment on July 24, 2020, and
bond was set at $100,000 cash or surety.
{¶4} On October 21, 2020, appellant appeared with counsel, waived his rights,
and entered a plea of guilty to having weapons under disability and carrying a concealed
weapon, Counts 2 and 3 of the indictment. The remaining charges were dismissed. At
the plea hearing, the trial court informed him that he could be facing a maximum total
prison term of four and one-half years. A presentence investigation (PSI) was ordered.
On November 30, 2020, the trial court ordered that appellant be assessed for NEOCAP.
{¶5} A sentencing hearing was held on December 4, 2020. At the sentencing
hearing, the trial court stated the following:
So after reviewing the presentence investigation, the
recommendation of counsel, it is the sentence of this court, I
am going to find that you are amenable to community control
sanctions and that a prison sentence is not consistent with the
purposes and principles of sentencing at this time.
Therefore, for the felony of the third degree, it is the sentence
of this court that you serve thirty-six months in the Ohio
Department of Corrections.
For the felony of the fourth degree, it is the sentence of this
court that you serve eighteen months in the Ohio Department
of Corrections. I'm ordering that those sentences run
consecutively, not concurrently, for a total of four and a half
years.
{¶6} The trial court then suspended the prison term and placed appellant on
intensive supervision for the first year, followed by four years of general supervision.
Case No. 2023-P-0065 Appellant was ordered to complete NEOCAP, comply with any aftercare, submit to
random drug and alcohol screenings, and maintain employment.
{¶7} The sentencing entry does not reflect that the prison terms imposed would
be suspended, but instead indicates that upon a violation, the trial court would sentence
appellant to a 36-month term on Count 2, and an 18-month term on Count 3, to be served
consecutively to one another for an aggregate term of four and one-half years.
{¶8} A motion to revoke and capias request was filed after appellant failed to
report to probation upon release from the Ohio Department of Rehabilitation and
Corrections, failed to respond to phone calls and mail, and missed a scheduled
appointment on March 20, 2022. The trial court granted the motion on April 20, 2022.
{¶9} A hearing was held on July 24, 2023. At the hearing, appellant appeared
with counsel, admitted the violation, and waived a hearing. The trial court found appellant
violated the terms of his community control. The matter was set for disposition hearing on
July 28, 2023.
{¶10} On July 28, 2023, defense counsel informed the court that appellant had
new charges in Cuyahoga County and appellant was awaiting arraignment. The trial court
stated: “* * * Well, I’m going to terminate your probation, impose your previously
suspended sentence of three, plus one and a half years, for a total of a four-and-a-half-
year sentence.” When appellant requested that the trial court consider something else,
the trial court responded “[n]o. That was the sentence that was suspended originally and
that's the sentence that I'm imposing.” The trial court did not make the consecutive
findings at the sentencing hearing upon revoking appellant’s community control.
Case No. 2023-P-0065 {¶11} The sentencing entry provides in relevant part:
Weighing all factors, a prison term is consistent with the
purposes and principles of 2929.19 and the Defendant is no
longer amendable to community control sanctions. Due to the
Defendant’s failure to abide by the terms and conditions of
community control and/or Defendant’s significant criminal
history, a prison term is necessary.
The Court finds that the consecutive sentence is necessary to
protect the public from future crime or to punish the Defendant
and consecutive sentences are not disproportionate to the
seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public.
Also, the Defendant’s history of criminal conduct
demonstrates that consecutive sentences are necessary to
protect the public from future crime by the Defendant.
{¶12} Appellant timely appeals and raises a single assignment of error: “[t]he trial
court erred by imposing consecutive sentences upon Defendant-Appellant, Nick Stokel,
absent the findings required by law in accordance with R.C. 2929.14 and [CITATION].
(T.d. 39) (T.p. July 28, 2023).” Specifically, appellant asserts that the trial court failed to
make the requisite findings when it imposed consecutive sentences. We agree.
{¶13} “R.C. 2953.08(G) governs our review of felony sentences, and provides, in
relevant part, that after an appellate court’s review of the record, it ‘may increase, reduce,
or otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence is *
* * contrary to law.’” [CITATION], ¶ 9, citing [CITATION], ¶ 11.
See [CITATION].
{¶14} “‘[A] sentence is contrary to law when it does not fall within the statutory
range for the offense or if the trial court fails to consider the purposes and principles of
Case No. 2023-P-0065 felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12.’” (Citations omitted). Id.
{¶15} First, we note that “community control sanctions and prison terms are
mutually exclusive and therefore cannot be imposed at the same time on the same count
of conviction.” [CITATION], ¶ 21 (3d Dist.).
Therefore, a trial court cannot suspend a prison term or make community control a
condition of a suspended prison term. [CITATION], ¶ 19 (12th Dist.). Here, the trial court explained at the appellant’s initial sentencing hearing
on December 4, 2020, that the trial court would suspend the sentences and place
appellant on community control. This is improper. See [CITATION], ¶ 31 (“as a general rule, when a prison term and
community control are possible sentences for a particular felony offense, absent an
express exception, the court must impose either a prison term or a community-control
sanction or sanctions”).
{¶16} However, the sentencing entry does not reflect this description. Instead, the
sentencing entry reflects that upon a violation of the community control sanctions, the
court would impose a 36-month prison term on Count 2 to be served consecutively to an
18-month prison term on Count 3 for an aggregate prison term of four and one-half years.
{¶17} When imposing a sentence of community control sanctions, the sentencing
court must notify the offender of the specific prison term that may be imposed for a
violation of the conditions of the sanction at the time of the sentencing. [CITATION], ¶ 29. See [CITATION], at ¶ 21. The
Ohio Supreme Court concluded in [CITATION], 2022-Ohio-4485,
Case No. 2023-P-0065 218 N.E.3d 867 “that a reserved prison term may be ordered to be served consecutively
to any other sentence at a community-control-revocation hearing if notice was given when
the prison term was reserved that the term could be required to be served consecutively
to another prison term at the time of revocation.” In the instant case, the trial court
informed appellant that upon a violation, the trial court would impose consecutive
sentences. This was necessary for the court to preserve the court’s ability to impose such
a sentence upon a community control violation.
{¶18} Upon revoking appellant’s community control, the trial court imposed
consecutive prison terms for an aggregate prison term of four and one-half years.
However, the trial court failed to make the consecutive findings at the hearing.
{¶19} When imposing consecutive sentences, “‘a trial court is required to make
the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
its findings into its sentencing entry, but it has no obligation to state reasons to support
its findings.’” (Emphasis added). [CITATION], ¶ 27, quoting [CITATION], 140 Ohio St.3d 209, 2014-
[SEGMENT 6]
Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶20} R.C. 2929.14(C)(4) states:
“If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
Case No. 2023-P-0065 was under a sanction imposed pursuant to section
.16, 2929.17, or 2929.18 of the Revised Code, or was
under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶21} “The trial court is not required ‘to give a talismanic incantation of the words
of the statute, provided that the necessary findings can be found in the record and are
incorporated into the sentencing entry.’ [CITATION] Otherwise, ‘the imposition of
consecutive sentences * * * is contrary to law.’ [CITATION], ¶ 27.
{¶22} At the initial sentencing, when discussing the prison terms the trial court
would impose if appellant violated his community control sanctions, the trial court made
consecutive findings in accordance with R.C. 2929.14(C)(4). Those findings were not
incorporated into the initial sentencing entry or the nunc pro tunc entry on sentence.
{¶23} Regardless of the trial court’s consecutive findings at the initial sentencing
hearing, the trial court did not make the consecutive findings anew when it revoked
appellant’s community control sanctions and sentenced appellant to consecutive prison
terms.
{¶24} In [CITATION], ¶ 27, the Supreme Court of Ohio noted:
* * * [E]ven if the court had made the consecutive-sentences
findings at Howard's initial sentencing hearing, R.C.
.14(C)(4) becomes relevant when “multiple prison terms
Case No. 2023-P-0065 are imposed.” (Emphasis added.) And here, prison terms
were not imposed until the trial court revoked Howard's
community control. Accordingly, consecutive sentences were
not properly imposed and we must vacate the trial court's
consecutive-sentences order and remand the case to the trial
court for resentencing. See [CITATION].
{¶25} While the trial court’s entry contains the consecutive findings, the trial court
did not make consecutive findings at the hearing when it revoked appellant’s community
control sanctions as required. As such, consecutive sentences were not properly
imposed. Appellant’s sole assignment of error is sustained.
{¶26} Therefore, we vacate the sentence imposed and remand for resentencing.
Should the trial court re-impose consecutive sentences, the trial court shall make all
necessary statutory findings at the sentencing hearing and in the sentencing entry. [CITATION]
{¶27} For the foregoing reasons, we reverse the judgment of the Portage County
Court of Common Pleas and remand this matter for resentencing.
EUGENE A. LUCCI, P.J.,
MATT LYNCH, J.,
concur.
Case No. 2023-P-0065
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NOS. 2023-P-0056
-P-0057
Plaintiff-Appellee,
Criminal Appeals from the
- vs - Court of Common Pleas
MICHAEL A. WATSON a.k.a.
MICHEAL A. WATSON, Trial Court Nos. 2022 CR 00471
CR 00456
Defendant-Appellant.
OPINION
Decided: February 12, 2024
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
Eric R. Fink, 11 River Street, Kent, OH 44240 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Appellant, Michael A. Watson, appeals his sentence for domestic violence
and the revocation of community control sanctions from the Portage County Court of
Common Pleas. Appellate counsel has filed a brief pursuant to [CITATION], stating there are no meritorious issues
for appeal and thus, these matters are wholly frivolous. After independent review of the
record, we agree with appellate counsel. The judgment of the trial court is affirmed, and
appellate counsel's motion to withdraw is granted. {¶2} On April 28, 2022, the Portage County grand jury indicted appellant on one
count of domestic violence, a third-degree felony, in violation of R.C. 2919.25(A), in Case
No. 2022 CR 471. Appellant entered a not guilty plea at arraignment and bond was set at
$20,000 cash or surety, with the condition that appellant have no contact with the victim.1
The trial court also granted a temporary protection order.
{¶3} On August 5, 2022, pursuant to a plea agreement, appellant entered a plea
of guilty to an amended indictment of domestic violence, a fourth-degree felony. At the
plea hearing, the court advised appellant of the rights he waives by pleading guilty. The
court advised appellant of his right to a jury trial, the State’s burden of proof, his right to
cross-examine and confront witnesses, to call his own witnesses, to testify on his own
behalf as well as his limited appellate rights. Appellant was asked if he understood the
rights as explained by the trial court and he replied affirmatively. These rights were also
detailed in the written plea of guilty signed by appellant and his counsel. The trial court
concluded that appellant knowingly and voluntarily waived his rights and accepted his
guilty plea. The trial court ordered a pre-sentence investigation and reinstated bond. The
trial court lifted the temporary protection order at the victim’s request.
{¶4} Sentencing was held on October 11, 2022. At sentencing, the victim
requested that the temporary protection order be reinstated. Due to appellant’s placement
at Oriana House, a term and condition of probation in a separate and unrelated case, the
1. The transcripts from the arraignment indicate the trial court imposed a cash or surety bond, however,
according to the docket, there were two separate bond filings, the second of which, indicate a $20,000
personal recognizance bond was ordered.
Case Nos. 2023-P-0056 and 2023-P-0057 trial court placed appellant on community control for three years with conditions.2 The trial
court further issued a no contact order as a condition of appellant’s community control.
{¶5} On December 14, 2022, a Motion to Revoke and Capias Request was filed
in the 2022 case. A capias was issued for appellant’s arrest the same day.
{¶6} On April 27, 2023, the Portage County Grand Jury returned a two-count
indictment charging appellant with domestic violence, a third-degree felony, in violation
of R.C. 2919.25(A), and violation of a protection order, a third-degree felony, in violation
of R.C. 2919.27. This case involved the same victim as the 2022 case. Appellant entered
a not guilty plea at arraignment and bond was set at $50,000, 10% cash or surety. The
trial court once again issued a no contact order as a condition of bond.
{¶7} On June 5, 2023, pursuant to a plea agreement, appellant entered a guilty
plea to domestic violence, a third-degree felony, as charged in the indictment. The State
dismissed the remaining count.
{¶8} At the plea hearing, the court advised appellant of the rights he waived by
pleading guilty. The court advised appellant of his right to a jury trial, the State’s burden
of proof, his right to cross-examine and confront witnesses, to call his own witnesses, and
to testify on his own behalf. Appellant was asked if he understood the rights as explained
by the trial court and he replied affirmatively.3 These rights were also detailed in the
written plea of guilty signed by appellant and his counsel. The trial court concluded that
appellant knowingly and voluntarily waived his rights and accepted his guilty plea. The
[SEGMENT 7]
2. At the sentencing hearing, the trial court indicated that appellant would be sentenced to community
control and also imposed a prison term of 6-18 months which the trial court suspended. The sentencing
entry does not reflect this. The trial court reiterated the suspended sentence, however, at the revocation
hearing.
3. At the July 17, 2023 sentencing hearing, appellant claimed he could not read or write.
Case Nos. 2023-P-0056 and 2023-P-0057 trial court ordered a pre-sentence investigation and assessments for NEOCAP and Root
House. The court further indicated that the motion to revoke community control, pending
in the 2022 case, would be addressed at sentencing.
{¶9} A sentencing hearing was held on the 2023 domestic violence conviction as
well as the community control violation in the 2022 case on July 17, 2023. The trial court
sentenced appellant to 24 months on the 2023 case, and 18 months on the community
control violation in the 2022 case. The court ordered the sentences to be served
consecutively to each other for an aggregate prison term of 42 months.
{¶10} Appellant timely appeals. On October 17, 2023, counsel filed appellant’s
brief pursuant to [CITATION], asserting that no meritorious issues upon which to base
an appeal exist after a thorough review of the record. Appellate counsel requested to
withdraw and set forth the following potential assignments of error:
[1]. “In either or both the 2022 or 2023 case, the defendant-
appellant’s plea was not knowingly, intelligently, or voluntarily
entered into and is therefore contrary to law.”
[2]. “The trial court’s imposition of consecutive sentences is
contrary to law.”
[3]. “The trial court violated Mr. Watson’s due process rights
when it revoked Mr. Watson’s probation without obtaining a
waiver from Mr. Watson or conducting an evidentiary
hearing.”
{¶11} The Supreme Court of the United States has held that if appellate counsel,
after a conscientious examination of the record, finds an appeal to be wholly frivolous, he
or she should advise the court and request permission to withdraw. [CITATION] at 744.
Counsel’s request to withdraw must also include a brief which cites anything in the record
that could arguably support the appeal. Id. Counsel is required to provide his or her client
Case Nos. 2023-P-0056 and 2023-P-0057 with a copy of the brief and his or her request to withdraw and give the client an
opportunity to raise any other issues. Id. When these conditions have been met, the
appellate court will review the entire record to determine whether the appeal is wholly
frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant counsel’s
motion to withdraw and proceed to a decision on the merits. Id. If, however, the court
concludes the appeal is not frivolous, it must appoint new counsel for the client. Id. Accord
[CITATION]
{¶12} On November 17, 2023, this Court granted appellant thirty (30) days “to file
his own submission, if he so chooses, which raises any arguments in support of the
appeals.” This Court held counsel's request to withdraw in abeyance. Appellant has not
filed any further brief or memorandum in support of his appeal. As there is no requirement
to respond, the State did not file an brief. Accordingly, we proceed to conduct an
independent review of the record pursuant to Anders.
{¶13} In his first potential assignment of error, appellate counsel argues that
“defendant-appellant’s plea was not knowingly, intelligently, or voluntarily entered into and
is therefore contrary to law.”
{¶14} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” [CITATION] quoting [CITATION] Crim.R. 11 outlines the procedure a trial court must follow before accepting guilty pleas.
[CITATION]
Case Nos. 2023-P-0056 and 2023-P-0057 {¶15} Crim.R. 11(C)(2) provides, in relevant part:
In felony cases the court * * * shall not accept a plea of guilty
* * * without first addressing the defendant personally * * * and
doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the imposition
of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty * * *, and
that the court, upon acceptance of the plea, may proceed with
judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify
against himself or herself.
{¶16} A review of the plea hearing transcripts demonstrates that the trial court
engaged in a plea colloquy with appellant in both cases and fully complied with Crim.R.
11(C)(2). Appellant’s pleas were knowingly, voluntarily, and intelligently made. We find
no meritorious claims as to the pleas. The potential assignment of error is without merit.
{¶16} In his second potential assignment of error, appellate counsel argues that
“the imposition of consecutive sentences was contrary to law.”
{¶17} The trial court sentenced appellant to 24 months on the 2023 case and upon
revoking his community control, the court imposed an 18-month sentence in the 2022
case. The court ordered the sentences to be served consecutively to each other for an
aggregate prison term of 42 months.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶18} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” [CITATION]. The appellate court “may vacate the sentence and remand
the matter to the sentencing court for resentencing[,] * * * if it clearly and convincingly
finds * * * the sentence is * * * contrary to law.” [CITATION].
{¶19} There is a statutory presumption in favor of concurrent sentences. [CITATION]. However, [CITATION] provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶20} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” [CITATION], ¶ 37. Additionally, “as long as the reviewing court can discern that the trial
court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.
In other words, “‘if the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we “clearly and
convincingly” find “[t]hat the record does not support the court's findings[.]”’” [CITATION], ¶ 48, quoting [CITATION], ¶ 19, quoting R.C. 2953.08(G)(2)(a). See
[SEGMENT 8]
[CITATION], ¶ 28.
{¶21} During the sentencing hearing, the trial court stated:
* * * You have numerous domestic violence charges, a
number of convictions, along with certainly other violent
offenses. So, I am going to find that you are not amenable to
community control sanctions and that a prison sentence is
consistent with the purposes and principles of sentencing. * *
* I’m finding that consecutive sentences are necessary to
protect the public from future crime, to punish you, and are not
disproportionate to the seriousness of your conduct. I am
specifically finding that this offense was committed while you
were on community control and that qualifies for consecutive
sentencing.
{¶22} These findings were incorporated in the sentencing entry. Therefore, the
trial court’s imposition of consecutive sentences complies with R.C. 2929.14(C)(4).
Accordingly, appellant’s second potential assignment of error is without merit.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶23} In his third and final potential assignment of error, appellate counsel asserts
that “[t]he trial court violated [appellant]’s due process rights when it revoked [appellant]’s
probation without obtaining a waiver from [appellant] or conducting an evidentiary
hearing.”
{¶24} This Court discussed in [CITATION]:
‘[A] revocation of community control punishes the failure to
comply with the terms and conditions of community control,
not the specific conduct that led to the revocation.’ [CITATION].
Crim.R. 32.3, which governs revocation of community control,
provides that the trial court ‘shall not impose a prison term for
violation of the conditions of a community control sanction or
revoke probation except after a hearing at which the
defendant shall be present and apprised of the grounds on
which action is proposed.’
{¶25} “Community control violation proceedings are not equivalent to criminal
prosecutions.” [CITATION]. “Nevertheless, a defendant is entitled to certain due
process protections before a court may revoke community-control sanctions.” [CITATION].
{¶26} “First, a defendant is entitled to a preliminary hearing to determine whether
there is probable cause to believe that the defendant has violated the terms of his or her
community control.” (Citations omitted). [CITATION]. “Second, due process requires a final hearing
to determine whether community control should be revoked.” [CITATION].
{¶27} Appellate counsel alleges that “neither [appellant] nor his [trial] counsel ever
specifically waived [appellant]’s right to [a full] hearing.” In other words, appellant argues
that the second prong was not met.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶28} At the plea hearing, the trial court, after accepting appellant’s plea in the
2023 case, stated: “* * * Did we address the -- we didn't address the Motion to Revoke
yet. We can do that at sentencing if you want.” Appellant’s counsel replied, “Yes, Judge.
Thank you.” However, in its June 7, 2023 entry, the trial court noted that a hearing on the
motion to modify sanctions was held, and the trial court determined that appellant violated
the terms of his community control sanctions imposed in the 2022 case. The court set the
matter for sentencing with the 2023 case.
{¶29} It is well established that a court speaks through its journal entries. [CITATION]
Here, the trial court noted that a hearing occurred wherein
the trial court determined that appellant violated the terms of community control.
{¶30} As such, the record does not support a due process violation. Appellant
entered a guilty plea to domestic violence, an offense committed while on community
control sanctions. This admission is a violation of the terms of the community control
sanctions imposed by the trial court in the 2022 case. Appellant’s third assignment of
error is without merit.
{¶31} After an independent and thorough review of the record, we find that there
are no arguable issues requiring the appointment of new appellate counsel.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶32} For the foregoing reasons, appellant’s instant appeals are wholly frivolous.
The judgment of the Portage County Court of Common Pleas is affirmed. It is further
ordered that the motion to withdraw as counsel for appellant filed by Attorney Eric R. Fink
is hereby granted.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
Case Nos. 2023-P-0056 and 2023-P-0057
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0096
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
MONTEZ WILLIAMS,
Trial Court No. 2021 CR 00061
Defendant-Appellant.
OPINION
Decided: May 28, 2024
Judgment: Reversed and remanded
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Richard E. Hackerd, 55 Public Square, Suite 2100, Cleveland, OH 44113 (For
Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Montez Williams (“appellant”), appeals from the
judgment of the Trumbull County Court of Common Pleas revoking his community control
sanctions and imposing consecutive prison terms and the State concedes error. For the
following reasons, we reverse and remand this matter for resentencing consistent with
this opinion.
{¶2} On March 3, 2021, the Trumbull County Grand Jury returned a two-count
indictment charging appellant with improperly handling firearms in a motor vehicle, a felony of the fourth degree, pursuant to R.C. 2923.16(B) and (I) (“Count 1”), and having
weapons while under disability, a felony of the third degree, pursuant to R.C.
2923.13(A)(2) and (B) (“Count 2”).1
{¶3} Appellant entered a plea of not guilty at arraignment on March 11, 2021,
and a personal/unsecured appearance bond in the amount of $3,500 was set subject to
pretrial release conditions.
{¶4} On July 22, 2021, appellant appeared with counsel, waived his rights, and
entered a plea of guilty to Count 1 of the indictment, improperly handling firearms in a
motor vehicle, a felony of the fourth degree, in violation of R.C. 2923.16(B) and (I). The
remaining charge was dismissed. Appellant agreed to forfeit the firearm, a Taurus 9mm,
semi-automatic handgun, and any ammunition. A presentence investigation (“PSI”) was
ordered.
{¶5} A sentencing hearing was held on September 16, 2021. According to the
sentencing entry, appellant was sentenced to community control sanctions for a period of
five (5) years subject to specific conditions and sanctions. The entry further provides that
appellant was advised by the trial court that if he violated “any law of any jurisdiction in
the United States; any rule of the Department of Community Control; or, any condition of
any sanction imposed upon him” that the trial court could impose a more restrictive
sanction including a prison term of 18 months.
{¶6} Transcripts of the initial plea hearing and initial sentencing are not part of
the record on appeal.
1. This case was bound over from the Warren Municipal Court on January 27, 2021, in Case No. [CITATION].
Case No. 2023-T-0096 {¶7} A probation warrant was issued on February 8, 2022. A review of the record
in this case shows the warrant was recalled on August 8, 2023.
{¶8} A hearing on the community control violations was held on October 19,
2023. At the hearing, appellant appeared with counsel, admitted the violations, and
waived a hearing. The trial court found appellant violated the terms of his community
control. The trial court proceeded directly to sentencing and sentenced appellant “to serve
a sentence of 18 months consecutive to all other charges.” The judgment entry on
sentencing further specifies that appellant “shall serve a prison term of eighteen (18)
months * * * consecutively to Trumbull County Court of Common Pleas case number 2022
CR 078.”
{¶9} Appellant timely appeals and raises a single assignment of error: ”[t]he Trial
Court committed reversible error when it imposed consecutive sentences without any
findings in support.” Specifically, appellant asserts that the trial court failed to make the
requisite findings when it imposed consecutive sentences. We agree.
{¶10} “R.C. 2953.08(G) governs our review of felony sentences, and provides, in
relevant part, that after an appellate court’s review of the record, it ‘may increase, reduce,
or otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence is *
* * contrary to law.’” [CITATION]
{¶11} “‘[A] sentence is contrary to law when it does not fall within the statutory
range for the offense or if the trial court fails to consider the purposes and principles of
Case No. 2023-T-0096 felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12.’” (Citations omitted). Id.
{¶12} When imposing a sentence of community control sanctions, the sentencing
court must notify the offender of the specific prison term that may be imposed for a
violation of the conditions of the sanction at the time of the sentencing. [CITATION],
¶ 29. The Ohio Supreme Court
has concluded “that a reserved prison term may be ordered to be served consecutively
to any other sentence at a community-control-revocation hearing if notice was given when
the prison term was reserved that the term could be required to be served consecutively
to another prison term at the time of revocation.” [CITATION], ¶ 15.
{¶13} When imposing consecutive sentences, “‘a trial court is required to make
the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
its findings into its sentencing entry, but it has no obligation to state reasons to support
its findings.’” (Emphasis added). [CITATION], ¶ 27, quoting [CITATION], ¶ 37.
{¶14} R.C. 2929.14(C)(4) states:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
Case No. 2023-T-0096 (a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section
.16, 2929.17, or 2929.18 of the Revised Code, or was
under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶15} “The trial court is not required ‘to give a talismanic incantation of the words
of the statute, provided that the necessary findings can be found in the record and are
incorporated into the sentencing entry.’ [CITATION] Otherwise, ‘the imposition of
consecutive sentences * * * is contrary to law.’ [CITATION]
{¶16} Upon revoking appellant’s community control, the trial court imposed a
prison term and ordered it to be served consecutively to the sentence imposed in another
case by another judge. The trial court failed to make the consecutive findings at the
hearing when it revoked appellant’s community control sanctions and sentenced
appellant to consecutive prison terms. Therefore, consecutive sentences were not
properly imposed and this matter must be remanded to trial court for resentencing. [CITATION]
{¶17} Because the transcripts of the initial plea and sentencing are not part of the
record in this case, it is unclear from the current record whether the trial court advised
Case No. 2023-T-0096 appellant that the reserved sentence could be ordered to be served consecutively to
another sentence.
{¶18} Appellant’s sole assignment of error is sustained.
{¶19} For the foregoing reasons, we reverse the judgment of the Trumbull County
Court of Common Pleas and remand this matter for resentencing consistent with this
opinion.
EUGENE A. LUCCI, P.J.,
MARY JANE TRAPP, J.,
concur.
Case No. 2023-T-0096
[SEGMENT 2]
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0094
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
JEREMY M. FEIDLER,
Trial Court No. 2022 CR 00705
Defendant-Appellant.
OPINION
Decided: May 28, 2024
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Michael A. Partlow, P.O. Box 1562, Stow, OH 44224 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Jeremy Feidler (“appellant”), appeals from the
judgment of the Trumbull County Court of Common Pleas sentencing appellant to
consecutive prison terms on his convictions of vandalism and aggravated menacing. For
the following reasons, we affirm.
{¶2} On October 12, 2022, the Trumbull County Grand Jury returned a three-
count indictment charging appellant with vandalism, a fourth-degree felony in violation of R.C. 2909.05(B)(2) and (E) (“Count 1”), and two counts of aggravated menacing, fifth-
degree felonies, in violation of R.C. 2903.21(A) and (B) (“Counts 2 and 3”).1
{¶3} Appellant entered a plea of not guilty at arraignment on October 25, 2022.
No bond was set.
{¶4} On November 2, 2022, appellant filed a motion for leave to file plea of not
guilty by reason of insanity. A competency evaluation was ordered on January 19, 2023.
A competency hearing was held on March 2, 2023. The State and appellant stipulated to
the competency report submitted by the Forensic Psychiatric Center of Northeast Ohio,
Inc. On March 7, 2023, the trial court concluded that appellant was incapable of
understanding the nature and objectives of the proceedings or assisting in his own
defense due to his mental condition at the time, but there was a substantial probability
that appellant would become capable within six months with a course of treatment.
Appellant was committed to Heartland Behavioral Healthcare for treatment.
{¶5} On June 29, 2023, a second competency hearing was held. The parties
stipulated to the report filed by Heartland Behavioral Healthcare. The trial court found
appellant to be competent to stand trial.
{¶6} On September 14, 2023, appellant appeared with counsel, waived his
rights, and entered a plea of guilty to Counts 1 and 2 as charged in the indictment. The
remaining charge was dismissed. A presentence investigation (“PSI”) was ordered.
{¶7} A sentencing hearing was held on October 19, 2023. The trial court
sentenced appellant to a prison term of eighteen months on Count 1 and a prison term of
1. This case was bound over from the Warren Municipal Court on September 16, 2022, in Case No. [CITATION].
Case No. [CITATION] twelve months on Count 2. The sentences were ordered to be served consecutively to
each other for an aggregate prison term of 30 months.
{¶8} Appellant timely appeals and raises a single assignment of error: “[t]he trial
court erred by sentencing appellant to two terms of imprisonment, to be served
consecutively with one another, as the record does not support such a sentence.” We
disagree.
{¶9} “R.C. 2953.08(G) governs our review of felony sentences, and provides, in
relevant part, that after an appellate court’s review of the record, it ‘may increase, reduce,
or otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence is *
* * contrary to law.’” [CITATION]
See [CITATION]. “‘[A]
sentence is contrary to law when it does not fall within the statutory range for the offense
or if the trial court fails to consider the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.’” Id., at ¶ 10,
quoting [CITATION]
{¶10} The Supreme Court of Ohio has held that while “R.C. 2953.08(G)(2)(a)
permits an appellate court to modify or vacate a sentence if it clearly and convincingly
finds that ‘the record does not support the sentencing court's findings under’ certain
specified statutory provisions. But R.C. 2929.11 and 2929.12 are not among the statutory
provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D),
2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.” [CITATION]
Case No. 2023-T-0094 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 28. “R.C. 2953.08(G)(2)(b) therefore does not
provide a basis for an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” Id. at
¶ 39. See also [CITATION], ¶ 13.
{¶11} Appellant asserts that the “standard for felony sentencing essentially
amounts to no review at all, assuming a trial court stays within whatever sentencing range
is established by statute.” This Court has previously viewed such claim “as a challenge
to the constitutionality of R.C. 2953.08(G)(2)(a) or Ohio's high court ruling in Jones.” [CITATION], ¶ 13. We have
consistently rejected this claim and agreed with Justice Fischer's concurring opinion in
[CITATION], ¶ 9.
{¶12} Appellant's argument essentially asks this Court to review whether the
record supported the trial court's decision to impose a prison term rather than a
community control sanction, which this Court is not permitted to do. [CITATION], at ¶ 39. However, the trial court’s imposition of consecutive sentencing is reviewable
under R.C. 2953.08(G)(2).
{¶13} There is a statutory presumption in favor of concurrent sentences. R.C.
2929.41(A). However, R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
Case No. 2023-T-0094 offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section
.16, 2929.17, or 2929.18 of the Revised Code, or was
under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶14} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” [CITATION], ¶ 37. Additionally, “as long as the reviewing court can discern that the trial
court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.
“In other words, ‘if the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we “clearly and
convincingly” find “[t]hat the record does not support the court's findings[.]”’” [CITATION], ¶ 48, quoting [CITATION], ¶ 19 (8th Dist.), quoting R.C. 2953.08(G)(2)(a). See
[SEGMENT 3]
[CITATION], ¶ 28.
Case No. 2023-T-0094 {¶15} During the sentencing hearing, the trial court stated in relevant part:
[The] Court has considered the overring principles and
purposes of felony sentencing, further has considered all
relevant seriousness and recidivism factors. The Court finds
the sentence shall be proportional to the Defendant’s conduct
as well as consistent with similarly situated offenders.
***
Pursuant to Revised Code Section 2929.14, Court finds it is
necessary to protect the public from future crime by the
defendant, that he has serious criminal history, that due to the
conduct of the defendant a single prison term would not
adequately reflect the seriousness of the conduct of the
defendant and its necessary to protect the public to have
consecutive sentences.
{¶16} These findings were incorporated in the sentencing entry which provides
in relevant part: “[t]he Court finds that consecutive service is necessary to protect the
public from future crime and to punish the Defendant, and that consecutive sentences are
not disproportionate to the seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public. Further, the Court finds that the Defendant’s history of
criminal conduct demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender.”
{¶17} The trial court’s findings are supported by the record. Therefore, the trial
court’s imposition of consecutive sentences complies with R.C. 2929.14(C)(4) and the
sentences are not otherwise contrary to law. As such, appellant’s sole assignment of error
is without merit.
{¶18} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is affirmed.
Case No. 2023-T-0094 EUGENE A. LUCCI, P.J.,
MARY JANE TRAPP, J.,
concur.
Case No. 2023-T-0094
[CITATION]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0102
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
SAY'QUAN PARKS,
Trial Court No. 2023 CR 00452
Defendant-Appellant.
OPINION
Decided: April 29, 2024
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Christopher P. Lacich, Roth Blair Roberts Strasfield & Lodge, 100 East Federal Street,
Suite 600, Youngstown, OH 44503 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Appellant, Say’Quan Parks, appeals the sentences imposed by the
Trumbull County Court of Common Pleas on his convictions of two counts of Improperly
Discharging a Firearm at or into a Habitation, second-degree felonies, with firearm
specifications, five counts of Felonious Assault, second-degree felonies, with firearm
specifications, and Improperly Handling Firearms in a Motor Vehicle, a fourth-degree
felony. For the following reasons, we affirm.
{¶2} On August 3, 2024, the Trumbull County Grand Jury returned a ten-count
indictment charging appellant with two counts of Improperly Discharging a Firearm at or into a Habitation, second-degree felonies, with firearm specifications, in violation of R.C.
2923.161(A)(1)&(C) and R.C. 2941.145 (Counts 1 and 7); seven counts of Felonious
Assault, second-degree felonies, with firearm specifications, in violation of R.C.
2903.11(A)(2) and (D)(1)(a) and R.C. 2941.145 (Counts 2, 3, 4, 5, 6, 8, and 9); and
Improperly Handling Firearms in a Motor Vehicle, a fourth-degree felony, in violation of
R.C. 2923.16(A) and (I) (Count 10).1 Appellant pleaded not guilty to the charges at
arraignment. No bond was set.
{¶3} On October 26, 2023, appellant appeared with counsel, waived his rights,
and entered guilty pleas to two counts of Improperly Discharging a Firearm at or into a
Habitation, second-degree felonies, with firearm specifications, five counts of Felonious
Assault, second-degree felonies, with firearm specifications, and Improperly Handling
Firearms in a Motor Vehicle, a fourth-degree felony, Counts 1, 2, 3, 6, 7, 8, 9, and 10.
{¶4} The State provided the following factual basis:
On or about [June 18, 2023] * * *, in Trumbull County and
State of Ohio, this defendant did fire the 9-millimeter handgun
indicated in the indictment at an unknown male in the parking
lot of the Big Apple convenience store located in Warren City
at least 23 times. In doing so, he struck a nearby white 2018
Volkswagen Passat, almost striking a Raquel Mostella who
was in that motor vehicle.
The defendant also fired into 876 Kenilworth Avenue, where
he struck the minor female victim, date of birth 12-20-2013, in
the right forearm, causing extensive damage to the bones
located in her forearm.
He also narrowly missed a minor female, date of birth 9-13-
, and a Misti Taylor * * * [in that residence].
1. On June 29, 2023, this case was bound over from the Warren Municipal Court in Case No, [CITATION].
Case No. [CITATION]
====== End of Document ====== He also fired into 877 Kenilworth Avenue, where he narrowly
or nearly shot a JoAnne DeVerna, who was a resident of that
residence.
Many of these shots were also fired from or on a motor
vehicle.
{¶5} As a result of the plea, the State nolled Counts 4 and 5 of the indictment
and appellant forfeited a Glock 19x, semiautomatic 9mm handgun, Serial No. BVHV497.
A presentence investigation (“PSI”) was ordered and bond revoked.
{¶6} On December 5, 2023, appellant was sentenced to an aggregate minimum
prison term of 25 1/2 years to a maximum of 29 1/2 years plus fines and costs.
Specifically, appellant was sentenced to a minimum of eight years to a maximum of 12
years on Count 1, with an additional term of three years on the firearm specification to be
served prior to and consecutively to the underlying sentence; a term of six years on Count
7, to be served concurrently to all other counts, with an additional term of three years on
the firearm specification to be served prior to and consecutively to the underlying offense
and all other Counts; a term of seven years on Count 2 to be served consecutively to all
other counts, with an additional three-year prison term on the firearm specification to be
served prior to and consecutively to the underlying offense and all other counts; a term of
eight years on each count, Counts 3, 6, 8 and 9 to each count to be served concurrently
to each other and all other counts and an additional three years on each attached firearm
specification to be served concurrently to each other and all other counts; and a term of
18 months on Count 10 to be served consecutively to all other counts.
{¶7} Appellant timely appeals and raises the following assignment of error for
review: “The trial court erred and imposed a sentence clearly and convincingly contrary
to law, by issuing an indeterminate, consecutive sentence to Appellant in the aggregate
Case No. 2023-T-0102 of a minimum of 25 and 1/2 years and a maximum of 29 and 1/2 years, plus fines and
costs. (T.d. 14).”
{¶8} Specifically, appellant argues in his brief that his sentence is excessive and
unreasonable, “where apparently the fact that Appellant at 22 years of age had pled guilty,
spared the State and victims of a trial, preserved judicial economy, and expressed sincere
remorse at sentencing, was given little if any weight in the ultimate sentence he received.”
{¶9} We review felony sentencing pursuant to R.C. 2953.08(G)(2), which
provides:
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court's standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the
following:
[SEGMENT 4]
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶10} While R.C. 2953.08(G)(2)(a) allows a reviewing court to modify or vacate a
sentence, that ability is limited to certain specified statutory provisions. Findings made
pursuant to R.C. 2929.11 and 2929.12 are not among those statutory provisions listed in
R.C. 2953.08(G)(2)(a). [CITATION]. “R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an appellate
court to modify or vacate a sentence based on its view that the sentence is not supported
Case No. 2023-T-0102 by the record under R.C. 2929.11 and 2929.12. Id. at ¶ 39. See also [CITATION].
{¶11} Appellant argues that that “the appeal of a sentence such as his, in effect,
[is] illusory: the Appellate Court having no power to intervene and fashion a more
reasonable sentence . . .” Appellant’s brief at 7. This Court, as it is required to do, has
followed the direction of the Supreme Court of Ohio: “’This court's holding today specifies
what an appellate court may not do under this provision: it may not conduct an
independent review of whether the record supports the sentence and substitute its own
judgment regarding the appropriate sentence.’” [CITATION] quoting [CITATION]. There is nothing in the record to suggest that appellant’s sentence is
contrary to law. Each individual sentence is within the statutory guidelines.
{¶12} Because certain sentences were ordered or were required to be served
consecutively, appellant asserts the aggregate sentence as excessive or unreasonable.
There is a statutory presumption in favor of concurrent sentences. R.C. 2929.41(A).
However, R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
Case No. 2023-T-0102 2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶13} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” [CITATION] Additionally, “as long as the reviewing court can discern that the trial
court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.” [CITATION]
In other words, “‘if the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we “clearly and
convincingly” find “[t]hat the record does not support the court's findings[.]”’” [CITATION] See
[CITATION]
{¶14} During the sentencing hearing, the trial court stated:
Case No. 2023-T-0102 “[The] Court has considered the overriding principles and
purposes of felony sentencing, and * * * has considered all
relevant seriousness and recidivism factors.
***
[The] Court finds it is necessary to protect the public from
future crime by the defendant; that consecutive sentences are
not disproportionate to the seriousness of the offender’s
conduct, in permanently injuring a nine-year old girl; one or
more of the offenses were committed while multiple other
offenses were pending. Due to the conduct of the defendant
in putting - - any time you put a gun in your hand and you want
to take that and discharge it, you’ve got to accept
responsibility for everything that happens from that.
***
So you have been multiple times in the criminal justice
system, and you were warned many times, you’re forbidden
from owning or possessing a gun, and you chose to pick one
up anyway; correct?
***
Conduct of the defendant demonstrates that a single prison
term would not adequately reflect the seriousness of the
conduct; defendant’s criminal history demonstrates
consecutive sentences are necessary.
{¶15} These findings were incorporated in the sentencing entry. Specifically, the
trial court “considered the record, oral statements, the pre-sentence investigation and any
victim impact statements, as well as the principles and purposes of sentencing under R.C.
2929.11, and has balanced the seriousness and recidivism factors of R.C. 2929.12.” The
trial court determined:
[T]hat consecutive service is necessary to protect the public
from future crime and to punish the Defendant, and that
consecutive sentences are not disproportionate to the
seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public. Further the Court finds the
Defendant’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public
from future crime by the offender and that no single prison
term for any of the offenses committed adequately reflects the
seriousness of the offender’s conduct.
Case No. [CITATION] {¶16} Appellant was 22 years old at the time of sentencing. At the hearing, the
trial court noted appellant’s prior criminal history beginning at age 17 which included
charges for possession of drugs, criminal damaging, two convictions of domestic
violence, assault, failure to comply with the order or signal of a police officer, criminal
trespassing, obstruction of official business, weapons under disability, and the underlying
charges.
{¶17} Upon review of the record in this case, the record supports the trial court’s
determination. The individually imposed sentences were within the statutory guidelines,
the trial court considered the statutory mandates, and imposed consecutive sentences.
The trial court made the required findings to impose consecutive sentences. R.C.
2929.14(C)(4). Accordingly, appellant’s sole assignment of error is without merit.
{¶18} Finding appellant’s assignment of error to be without merit, we affirm the
judgment of the Trumbull County Court of Common Pleas.
EUGENE A. LUCCI, P.J.,
MATT LYNCH, J.,
concur.
Case No. 2023-T-0102
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2023-P-0065
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
NICK M. STOKEL,
Trial Court No. 2020 CR 00547
Defendant-Appellant.
OPINION
Decided: March 11, 2024
Judgment: Reversed and remanded
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
Donald K. Pond, Jr., 567 East Turkeyfoot Lake Road, Suite 107, Akron, OH 44319 (For
Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Nick M. Stokel (“appellant”), appeals from the
judgment of the Portage County Court of Common Pleas revoking his community control
sanctions and imposing consecutive prison terms. For the following reasons, we reverse
and remand for resentencing consistent with this opinion.
{¶2} On July 23, 2020, the Portage County Grand Jury returned a four-count
indictment charging appellant with felonious assault, a second degree felony, with a
[SEGMENT 5]
firearm specification, pursuant to R.C. 2903.11, 2929.14, 2941.141 (“Count 1”); having
weapons under disability, a third degree felony, in violation of R.C. 2923.13 (“Count 2”); carrying concealed weapon, a fourth degree felony, in violation of R.C. 2923.12 (“Count
3”); and, improperly handling of a firearm in a motor vehicle, a fourth degree felony, in
violation of R.C. 2923.16 (“Count 4”).
{¶3} Appellant entered a plea of not guilty at arraignment on July 24, 2020, and
bond was set at $100,000 cash or surety.
{¶4} On October 21, 2020, appellant appeared with counsel, waived his rights,
and entered a plea of guilty to having weapons under disability and carrying a concealed
weapon, Counts 2 and 3 of the indictment. The remaining charges were dismissed. At
the plea hearing, the trial court informed him that he could be facing a maximum total
prison term of four and one-half years. A presentence investigation (PSI) was ordered.
On November 30, 2020, the trial court ordered that appellant be assessed for NEOCAP.
{¶5} A sentencing hearing was held on December 4, 2020. At the sentencing
hearing, the trial court stated the following:
So after reviewing the presentence investigation, the
recommendation of counsel, it is the sentence of this court, I
am going to find that you are amenable to community control
sanctions and that a prison sentence is not consistent with the
purposes and principles of sentencing at this time.
Therefore, for the felony of the third degree, it is the sentence
of this court that you serve thirty-six months in the Ohio
Department of Corrections.
For the felony of the fourth degree, it is the sentence of this
court that you serve eighteen months in the Ohio Department
of Corrections. I'm ordering that those sentences run
consecutively, not concurrently, for a total of four and a half
years.
{¶6} The trial court then suspended the prison term and placed appellant on
intensive supervision for the first year, followed by four years of general supervision.
Case No. 2023-P-0065 Appellant was ordered to complete NEOCAP, comply with any aftercare, submit to
random drug and alcohol screenings, and maintain employment.
{¶7} The sentencing entry does not reflect that the prison terms imposed would
be suspended, but instead indicates that upon a violation, the trial court would sentence
appellant to a 36-month term on Count 2, and an 18-month term on Count 3, to be served
consecutively to one another for an aggregate term of four and one-half years.
{¶8} A motion to revoke and capias request was filed after appellant failed to
report to probation upon release from the Ohio Department of Rehabilitation and
Corrections, failed to respond to phone calls and mail, and missed a scheduled
appointment on March 20, 2022. The trial court granted the motion on April 20, 2022.
{¶9} A hearing was held on July 24, 2023. At the hearing, appellant appeared
with counsel, admitted the violation, and waived a hearing. The trial court found appellant
violated the terms of his community control. The matter was set for disposition hearing on
July 28, 2023.
{¶10} On July 28, 2023, defense counsel informed the court that appellant had
new charges in Cuyahoga County and appellant was awaiting arraignment. The trial court
stated: “* * * Well, I’m going to terminate your probation, impose your previously
suspended sentence of three, plus one and a half years, for a total of a four-and-a-half-
year sentence.” When appellant requested that the trial court consider something else,
the trial court responded “[n]o. That was the sentence that was suspended originally and
that's the sentence that I'm imposing.” The trial court did not make the consecutive
findings at the sentencing hearing upon revoking appellant’s community control.
Case No. 2023-P-0065 {¶11} The sentencing entry provides in relevant part:
Weighing all factors, a prison term is consistent with the
purposes and principles of 2929.19 and the Defendant is no
longer amendable to community control sanctions. Due to the
Defendant’s failure to abide by the terms and conditions of
community control and/or Defendant’s significant criminal
history, a prison term is necessary.
The Court finds that the consecutive sentence is necessary to
protect the public from future crime or to punish the Defendant
and consecutive sentences are not disproportionate to the
seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public.
Also, the Defendant’s history of criminal conduct
demonstrates that consecutive sentences are necessary to
protect the public from future crime by the Defendant.
{¶12} Appellant timely appeals and raises a single assignment of error: “[t]he trial
court erred by imposing consecutive sentences upon Defendant-Appellant, Nick Stokel,
absent the findings required by law in accordance with R.C. 2929.14 and [CITATION].
(T.d. 39) (T.p. July 28, 2023).” Specifically, appellant asserts that the trial court failed to
make the requisite findings when it imposed consecutive sentences. We agree.
{¶13} “R.C. 2953.08(G) governs our review of felony sentences, and provides, in
relevant part, that after an appellate court’s review of the record, it ‘may increase, reduce,
or otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence is *
* * contrary to law.’” [CITATION], ¶ 9, citing [CITATION], ¶ 11.
See [CITATION].
{¶14} “‘[A] sentence is contrary to law when it does not fall within the statutory
range for the offense or if the trial court fails to consider the purposes and principles of
Case No. 2023-P-0065 felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12.’” (Citations omitted). Id.
{¶15} First, we note that “community control sanctions and prison terms are
mutually exclusive and therefore cannot be imposed at the same time on the same count
of conviction.” [CITATION], ¶ 21 (3d Dist.).
Therefore, a trial court cannot suspend a prison term or make community control a
condition of a suspended prison term. [CITATION], ¶ 19 (12th Dist.). Here, the trial court explained at the appellant’s initial sentencing hearing
on December 4, 2020, that the trial court would suspend the sentences and place
appellant on community control. This is improper. See [CITATION], ¶ 31 (“as a general rule, when a prison term and
community control are possible sentences for a particular felony offense, absent an
express exception, the court must impose either a prison term or a community-control
sanction or sanctions”).
{¶16} However, the sentencing entry does not reflect this description. Instead, the
sentencing entry reflects that upon a violation of the community control sanctions, the
court would impose a 36-month prison term on Count 2 to be served consecutively to an
18-month prison term on Count 3 for an aggregate prison term of four and one-half years.
{¶17} When imposing a sentence of community control sanctions, the sentencing
court must notify the offender of the specific prison term that may be imposed for a
violation of the conditions of the sanction at the time of the sentencing. [CITATION], ¶ 29. See [CITATION], at ¶ 21. The
Ohio Supreme Court concluded in [CITATION], 2022-Ohio-4485,
Case No. 2023-P-0065 218 N.E.3d 867 “that a reserved prison term may be ordered to be served consecutively
to any other sentence at a community-control-revocation hearing if notice was given when
the prison term was reserved that the term could be required to be served consecutively
to another prison term at the time of revocation.” In the instant case, the trial court
informed appellant that upon a violation, the trial court would impose consecutive
sentences. This was necessary for the court to preserve the court’s ability to impose such
a sentence upon a community control violation.
{¶18} Upon revoking appellant’s community control, the trial court imposed
consecutive prison terms for an aggregate prison term of four and one-half years.
However, the trial court failed to make the consecutive findings at the hearing.
{¶19} When imposing consecutive sentences, “‘a trial court is required to make
the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
its findings into its sentencing entry, but it has no obligation to state reasons to support
its findings.’” (Emphasis added). [CITATION], ¶ 27, quoting [CITATION], 140 Ohio St.3d 209, 2014-
[SEGMENT 6]
Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶20} R.C. 2929.14(C)(4) states:
“If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
Case No. 2023-P-0065 was under a sanction imposed pursuant to section
.16, 2929.17, or 2929.18 of the Revised Code, or was
under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶21} “The trial court is not required ‘to give a talismanic incantation of the words
of the statute, provided that the necessary findings can be found in the record and are
incorporated into the sentencing entry.’ [CITATION] Otherwise, ‘the imposition of
consecutive sentences * * * is contrary to law.’ [CITATION], ¶ 27.
{¶22} At the initial sentencing, when discussing the prison terms the trial court
would impose if appellant violated his community control sanctions, the trial court made
consecutive findings in accordance with R.C. 2929.14(C)(4). Those findings were not
incorporated into the initial sentencing entry or the nunc pro tunc entry on sentence.
{¶23} Regardless of the trial court’s consecutive findings at the initial sentencing
hearing, the trial court did not make the consecutive findings anew when it revoked
appellant’s community control sanctions and sentenced appellant to consecutive prison
terms.
{¶24} In [CITATION], ¶ 27, the Supreme Court of Ohio noted:
* * * [E]ven if the court had made the consecutive-sentences
findings at Howard's initial sentencing hearing, R.C.
.14(C)(4) becomes relevant when “multiple prison terms
Case No. 2023-P-0065 are imposed.” (Emphasis added.) And here, prison terms
were not imposed until the trial court revoked Howard's
community control. Accordingly, consecutive sentences were
not properly imposed and we must vacate the trial court's
consecutive-sentences order and remand the case to the trial
court for resentencing. See [CITATION].
{¶25} While the trial court’s entry contains the consecutive findings, the trial court
did not make consecutive findings at the hearing when it revoked appellant’s community
control sanctions as required. As such, consecutive sentences were not properly
imposed. Appellant’s sole assignment of error is sustained.
{¶26} Therefore, we vacate the sentence imposed and remand for resentencing.
Should the trial court re-impose consecutive sentences, the trial court shall make all
necessary statutory findings at the sentencing hearing and in the sentencing entry. [CITATION]
{¶27} For the foregoing reasons, we reverse the judgment of the Portage County
Court of Common Pleas and remand this matter for resentencing.
EUGENE A. LUCCI, P.J.,
MATT LYNCH, J.,
concur.
Case No. 2023-P-0065
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NOS. 2023-P-0056
-P-0057
Plaintiff-Appellee,
Criminal Appeals from the
- vs - Court of Common Pleas
MICHAEL A. WATSON a.k.a.
MICHEAL A. WATSON, Trial Court Nos. 2022 CR 00471
CR 00456
Defendant-Appellant.
OPINION
Decided: February 12, 2024
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
Eric R. Fink, 11 River Street, Kent, OH 44240 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Appellant, Michael A. Watson, appeals his sentence for domestic violence
and the revocation of community control sanctions from the Portage County Court of
Common Pleas. Appellate counsel has filed a brief pursuant to [CITATION], stating there are no meritorious issues
for appeal and thus, these matters are wholly frivolous. After independent review of the
record, we agree with appellate counsel. The judgment of the trial court is affirmed, and
appellate counsel's motion to withdraw is granted. {¶2} On April 28, 2022, the Portage County grand jury indicted appellant on one
count of domestic violence, a third-degree felony, in violation of R.C. 2919.25(A), in Case
No. 2022 CR 471. Appellant entered a not guilty plea at arraignment and bond was set at
$20,000 cash or surety, with the condition that appellant have no contact with the victim.1
The trial court also granted a temporary protection order.
{¶3} On August 5, 2022, pursuant to a plea agreement, appellant entered a plea
of guilty to an amended indictment of domestic violence, a fourth-degree felony. At the
plea hearing, the court advised appellant of the rights he waives by pleading guilty. The
court advised appellant of his right to a jury trial, the State’s burden of proof, his right to
cross-examine and confront witnesses, to call his own witnesses, to testify on his own
behalf as well as his limited appellate rights. Appellant was asked if he understood the
rights as explained by the trial court and he replied affirmatively. These rights were also
detailed in the written plea of guilty signed by appellant and his counsel. The trial court
concluded that appellant knowingly and voluntarily waived his rights and accepted his
guilty plea. The trial court ordered a pre-sentence investigation and reinstated bond. The
trial court lifted the temporary protection order at the victim’s request.
{¶4} Sentencing was held on October 11, 2022. At sentencing, the victim
requested that the temporary protection order be reinstated. Due to appellant’s placement
at Oriana House, a term and condition of probation in a separate and unrelated case, the
1. The transcripts from the arraignment indicate the trial court imposed a cash or surety bond, however,
according to the docket, there were two separate bond filings, the second of which, indicate a $20,000
personal recognizance bond was ordered.
Case Nos. 2023-P-0056 and 2023-P-0057 trial court placed appellant on community control for three years with conditions.2 The trial
court further issued a no contact order as a condition of appellant’s community control.
{¶5} On December 14, 2022, a Motion to Revoke and Capias Request was filed
in the 2022 case. A capias was issued for appellant’s arrest the same day.
{¶6} On April 27, 2023, the Portage County Grand Jury returned a two-count
indictment charging appellant with domestic violence, a third-degree felony, in violation
of R.C. 2919.25(A), and violation of a protection order, a third-degree felony, in violation
of R.C. 2919.27. This case involved the same victim as the 2022 case. Appellant entered
a not guilty plea at arraignment and bond was set at $50,000, 10% cash or surety. The
trial court once again issued a no contact order as a condition of bond.
{¶7} On June 5, 2023, pursuant to a plea agreement, appellant entered a guilty
plea to domestic violence, a third-degree felony, as charged in the indictment. The State
dismissed the remaining count.
{¶8} At the plea hearing, the court advised appellant of the rights he waived by
pleading guilty. The court advised appellant of his right to a jury trial, the State’s burden
of proof, his right to cross-examine and confront witnesses, to call his own witnesses, and
to testify on his own behalf. Appellant was asked if he understood the rights as explained
by the trial court and he replied affirmatively.3 These rights were also detailed in the
written plea of guilty signed by appellant and his counsel. The trial court concluded that
appellant knowingly and voluntarily waived his rights and accepted his guilty plea. The
[SEGMENT 7]
2. At the sentencing hearing, the trial court indicated that appellant would be sentenced to community
control and also imposed a prison term of 6-18 months which the trial court suspended. The sentencing
entry does not reflect this. The trial court reiterated the suspended sentence, however, at the revocation
hearing.
3. At the July 17, 2023 sentencing hearing, appellant claimed he could not read or write.
Case Nos. 2023-P-0056 and 2023-P-0057 trial court ordered a pre-sentence investigation and assessments for NEOCAP and Root
House. The court further indicated that the motion to revoke community control, pending
in the 2022 case, would be addressed at sentencing.
{¶9} A sentencing hearing was held on the 2023 domestic violence conviction as
well as the community control violation in the 2022 case on July 17, 2023. The trial court
sentenced appellant to 24 months on the 2023 case, and 18 months on the community
control violation in the 2022 case. The court ordered the sentences to be served
consecutively to each other for an aggregate prison term of 42 months.
{¶10} Appellant timely appeals. On October 17, 2023, counsel filed appellant’s
brief pursuant to [CITATION], asserting that no meritorious issues upon which to base
an appeal exist after a thorough review of the record. Appellate counsel requested to
withdraw and set forth the following potential assignments of error:
[1]. “In either or both the 2022 or 2023 case, the defendant-
appellant’s plea was not knowingly, intelligently, or voluntarily
entered into and is therefore contrary to law.”
[2]. “The trial court’s imposition of consecutive sentences is
contrary to law.”
[3]. “The trial court violated Mr. Watson’s due process rights
when it revoked Mr. Watson’s probation without obtaining a
waiver from Mr. Watson or conducting an evidentiary
hearing.”
{¶11} The Supreme Court of the United States has held that if appellate counsel,
after a conscientious examination of the record, finds an appeal to be wholly frivolous, he
or she should advise the court and request permission to withdraw. [CITATION] at 744.
Counsel’s request to withdraw must also include a brief which cites anything in the record
that could arguably support the appeal. Id. Counsel is required to provide his or her client
Case Nos. 2023-P-0056 and 2023-P-0057 with a copy of the brief and his or her request to withdraw and give the client an
opportunity to raise any other issues. Id. When these conditions have been met, the
appellate court will review the entire record to determine whether the appeal is wholly
frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant counsel’s
motion to withdraw and proceed to a decision on the merits. Id. If, however, the court
concludes the appeal is not frivolous, it must appoint new counsel for the client. Id. Accord
[CITATION]
{¶12} On November 17, 2023, this Court granted appellant thirty (30) days “to file
his own submission, if he so chooses, which raises any arguments in support of the
appeals.” This Court held counsel's request to withdraw in abeyance. Appellant has not
filed any further brief or memorandum in support of his appeal. As there is no requirement
to respond, the State did not file an brief. Accordingly, we proceed to conduct an
independent review of the record pursuant to Anders.
{¶13} In his first potential assignment of error, appellate counsel argues that
“defendant-appellant’s plea was not knowingly, intelligently, or voluntarily entered into and
is therefore contrary to law.”
{¶14} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” [CITATION] quoting [CITATION] Crim.R. 11 outlines the procedure a trial court must follow before accepting guilty pleas.
[CITATION]
Case Nos. 2023-P-0056 and 2023-P-0057 {¶15} Crim.R. 11(C)(2) provides, in relevant part:
In felony cases the court * * * shall not accept a plea of guilty
* * * without first addressing the defendant personally * * * and
doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the imposition
of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty * * *, and
that the court, upon acceptance of the plea, may proceed with
judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify
against himself or herself.
{¶16} A review of the plea hearing transcripts demonstrates that the trial court
engaged in a plea colloquy with appellant in both cases and fully complied with Crim.R.
11(C)(2). Appellant’s pleas were knowingly, voluntarily, and intelligently made. We find
no meritorious claims as to the pleas. The potential assignment of error is without merit.
{¶16} In his second potential assignment of error, appellate counsel argues that
“the imposition of consecutive sentences was contrary to law.”
{¶17} The trial court sentenced appellant to 24 months on the 2023 case and upon
revoking his community control, the court imposed an 18-month sentence in the 2022
case. The court ordered the sentences to be served consecutively to each other for an
aggregate prison term of 42 months.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶18} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” [CITATION]. The appellate court “may vacate the sentence and remand
the matter to the sentencing court for resentencing[,] * * * if it clearly and convincingly
finds * * * the sentence is * * * contrary to law.” [CITATION].
{¶19} There is a statutory presumption in favor of concurrent sentences. [CITATION]. However, [CITATION] provides:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶20} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” [CITATION], ¶ 37. Additionally, “as long as the reviewing court can discern that the trial
court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.
In other words, “‘if the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we “clearly and
convincingly” find “[t]hat the record does not support the court's findings[.]”’” [CITATION], ¶ 48, quoting [CITATION], ¶ 19, quoting R.C. 2953.08(G)(2)(a). See
[SEGMENT 8]
[CITATION], ¶ 28.
{¶21} During the sentencing hearing, the trial court stated:
* * * You have numerous domestic violence charges, a
number of convictions, along with certainly other violent
offenses. So, I am going to find that you are not amenable to
community control sanctions and that a prison sentence is
consistent with the purposes and principles of sentencing. * *
* I’m finding that consecutive sentences are necessary to
protect the public from future crime, to punish you, and are not
disproportionate to the seriousness of your conduct. I am
specifically finding that this offense was committed while you
were on community control and that qualifies for consecutive
sentencing.
{¶22} These findings were incorporated in the sentencing entry. Therefore, the
trial court’s imposition of consecutive sentences complies with R.C. 2929.14(C)(4).
Accordingly, appellant’s second potential assignment of error is without merit.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶23} In his third and final potential assignment of error, appellate counsel asserts
that “[t]he trial court violated [appellant]’s due process rights when it revoked [appellant]’s
probation without obtaining a waiver from [appellant] or conducting an evidentiary
hearing.”
{¶24} This Court discussed in [CITATION]:
‘[A] revocation of community control punishes the failure to
comply with the terms and conditions of community control,
not the specific conduct that led to the revocation.’ [CITATION].
Crim.R. 32.3, which governs revocation of community control,
provides that the trial court ‘shall not impose a prison term for
violation of the conditions of a community control sanction or
revoke probation except after a hearing at which the
defendant shall be present and apprised of the grounds on
which action is proposed.’
{¶25} “Community control violation proceedings are not equivalent to criminal
prosecutions.” [CITATION]. “Nevertheless, a defendant is entitled to certain due
process protections before a court may revoke community-control sanctions.” [CITATION].
{¶26} “First, a defendant is entitled to a preliminary hearing to determine whether
there is probable cause to believe that the defendant has violated the terms of his or her
community control.” (Citations omitted). [CITATION]. “Second, due process requires a final hearing
to determine whether community control should be revoked.” [CITATION].
{¶27} Appellate counsel alleges that “neither [appellant] nor his [trial] counsel ever
specifically waived [appellant]’s right to [a full] hearing.” In other words, appellant argues
that the second prong was not met.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶28} At the plea hearing, the trial court, after accepting appellant’s plea in the
2023 case, stated: “* * * Did we address the -- we didn't address the Motion to Revoke
yet. We can do that at sentencing if you want.” Appellant’s counsel replied, “Yes, Judge.
Thank you.” However, in its June 7, 2023 entry, the trial court noted that a hearing on the
motion to modify sanctions was held, and the trial court determined that appellant violated
the terms of his community control sanctions imposed in the 2022 case. The court set the
matter for sentencing with the 2023 case.
{¶29} It is well established that a court speaks through its journal entries. [CITATION]
Here, the trial court noted that a hearing occurred wherein
the trial court determined that appellant violated the terms of community control.
{¶30} As such, the record does not support a due process violation. Appellant
entered a guilty plea to domestic violence, an offense committed while on community
control sanctions. This admission is a violation of the terms of the community control
sanctions imposed by the trial court in the 2022 case. Appellant’s third assignment of
error is without merit.
{¶31} After an independent and thorough review of the record, we find that there
are no arguable issues requiring the appointment of new appellate counsel.
Case Nos. 2023-P-0056 and 2023-P-0057 {¶32} For the foregoing reasons, appellant’s instant appeals are wholly frivolous.
The judgment of the Portage County Court of Common Pleas is affirmed. It is further
ordered that the motion to withdraw as counsel for appellant filed by Attorney Eric R. Fink
is hereby granted.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
Case Nos. 2023-P-0056 and 2023-P-0057
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as State v. Passalacqua, 2023-Ohio-3525.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NOS. 2023-L-013
2023-L-014
Plaintiff-Appellee,
- vs - Criminal Appeals from the
Court of Common Pleas
JOSEPH A. PASSALACQUA,
Defendant-Appellant. Trial Court Nos. 2022 CR 000084
2021 CR 000978
OPINION
Decided: September 29, 2023
Judgment: Affirmed and remanded
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} The instant appeal stems from two underlying cases in which the appellant,
Joseph A. Passalacqua (“Mr. Passalacqua”), was convicted of aggravated drug trafficking
and aggravated possession and sentenced to terms of community control. Mr.
Passalacqua appeals from the judgment entries of the Lake County Court of Common
Pleas that, in each case, terminated his community control after several violations and
sentenced him to terms of imprisonment, with the sentences ordered to be served
consecutively, for a total of 30 months.
{¶2} Mr. Passalacqua raises one assignment of error for our review, contending
the trial court erred by imposing consecutive prison terms when the record does not
clearly and convincingly support the trial court’s findings.
{¶3} After a thorough review of the record and pertinent law, we find Mr.
Passalacqua’s assignment of error to be without merit. Quite simply, the record
contradicts Mr. Passalacqua’s contention that the trial court’s findings are unsupported
and/or that his sentence is contrary to law. A review of the sentencing hearing transcript
reveals evidence that Mr. Passalacqua repeatedly violated several conditions of his
community control in addition to his failure to report to the Adult Probation Department,
i.e., he actively used illegal drugs, remains unemployed, and failed to reinstate his driver’s
license. Further, he has an extensive criminal history that began when he was a juvenile
and includes several violent offenses. Under these circumstances, we cannot say the
record does not “clearly and convincingly” support the trial court’s findings. Nor is Mr.
Passalacqua’s sentence contrary to law simply because after repeatedly pleading guilty
to violating his community control, he now wishes to undergo an intensive drug treatment
program in lieu of prison.
{¶4} We do note, however, that the trial court failed to incorporate its consecutive
sentence findings pursuant to R.C. 2929.14(C) in the sentencing entries of both cases.
Thus, we remand to the trial court to issue nunc pro tunc sentencing entries incorporating
its findings from the sentencing hearing.
{¶5} Based on the foregoing, we affirm the judgments of the Lake County Court
of Common Pleas, but we remand for the trial court to issue nunc pro tunc sentencing
entries that incorporate its consecutive sentence findings pursuant to R.C. 2929.14(C).
2
Case Nos. 2023-L-013, 2023-L-014
Substantive and Procedural History
{¶6} This appeal stems from two underlying cases.
The 2021 Case
{¶7} In Lake County Common Pleas case no. 2021 CR 000978 (the “2021
case”), Mr. Passalacqua pleaded guilty to two counts of aggravated trafficking in drugs,
fourth-degree felonies, in violation of R.C. 2925.03(A)(1), with
contraband/instrumentalities forfeiture specifications pursuant to R.C. 2941.1417 and
2981.04, and one count of aggravated possession of drugs, a fifth-degree felony, in
violation of R.C. 2925.11, with contraband/instrumentalities forfeiture specifications
pursuant to R.C. 2941.1417 and 2981.04.
{¶8} The trial court sentenced Mr. Passalacqua to five years of community
control on each count, concurrently, with various conditions, including complete and total
abstinence from drugs and alcohol, full-time employment, reinstatement of a valid driver’s
license, intensive outpatient therapy, and mental health counseling.
The 2022 Case
{¶9} In Lake County Court of Common Pleas case no. 2022 CR 000084 (the
“2022 case”), Mr. Passalacqua pleaded guilty to one count of aggravated possession of
drugs, a fifth-degree felony, in violation of R.C. 2925.11, with a
contraband/instrumentalities forfeiture specification pursuant to R.C. 2941.1417 and R.C.
2981.04.
{¶10} The trial court sentenced him to five years of community control with almost
identical conditions as in the 2021 case.
3
Case Nos. 2023-L-013, 2023-L-014
First Violation of Community Control
{¶11} In July 2022, the trial court held a hearing on the state’s motions to terminate
Mr. Passalacqua’s community control in both cases. Mr. Passalacqua pleaded guilty to
failing to report to the Adult Probation Department on three separate occasions. In the
2021 case, the trial court continued his terms of community control, with additional
sanctions and conditions, including 75 days in jail, with time for 15 days served, and a 30-
day jail treatment program. In the 2022 case, the trial court continued his term of
community control.
Termination of Community Control
{¶12} In January 2023, the trial court held a hearing on the state’s second motion
to terminate community control in both cases. In each, Mr. Passalacqua pleaded guilty
to violating several rules of his community control: self-reported methamphetamine and
marijuana use on at least three separate occasions; being cited by the Wickliffe Police
Department for possession of marijuana, a minor misdemeanor; and failing to report to
the Adult Probation Department as instructed.
{¶13} Defense counsel asked the court to continue community control to allow Mr.
Passalacqua the opportunity to undergo inpatient treatment, followed by a sober living
program upon his release. Mr. Passalacqua spoke on his own behalf, explaining he
successfully completed the jail treatment program, but he returned to live with his fiancé,
who is an active drug user. He insisted he was not blaming his fiancé for his drug use,
and he acknowledged he has been a drug user for ten years. He confirmed he did not
fulfill the other conditions of his community control, such as finding employment and
reinstating his driver’s license. When Mr. Passalacqua advocated an intensive inpatient
4
Case Nos. 2023-L-013, 2023-L-014
treatment in lieu of terminating his community control, the trial court reminded him that
this was the fifth time in seven months he had been before the court promising he would
“get his life together.”
{¶14} The court reviewed the presentence investigation (“PSI”), the applicable
sentencing statutes, i.e., R.C. 2929.11, 2929.12, 2929.13 and 2929.14, and found Mr.
Passalacqua “abandoned the purposes for which community control has been
implemented in the 21 case and the 22 case. And in case the record’s not clear I say that
because you were sentenced in the 21 case, you were sentenced in the 22 case. The 21
case you were sentenced in May of ‘22 and you have the violations now for the third time
for repeated drug use, repeated not showing up and then this in line with what your
previous record is, your previous criminal record. So you are no longer amenable to
community control.”
{¶15} In the 2021 case, the trial court terminated Mr. Passalacqua’s community
control and sentenced him to serve terms of imprisonment of 18 months on the two counts
of aggravated trafficking in drugs and 12 months on the count of aggravated possession
of drugs, to be served concurrently to one another.
{¶16} In the 2022 case, the trial court terminated Mr. Passalacqua’s community
control and sentenced him to a term of imprisonment of 12 months on the count of
aggravated possession of drugs.
{¶17} The court ordered the sentences to be served consecutively to each other,
for a total term of 30 months in prison.
{¶18} As relevant to this appeal, the court found “[t]hose two sentences will be
consecutive to one another. The sentences, consecutive sentences in this case are
5
Case Nos. 2023-L-013, 2023-L-014
necessary to protect the public from future crime by you and for appropriate punishment
and they are not disproportionate to the seriousness of your offenses. And you obviously
pose a danger to the public by virtue of these offen[s]es which include trafficking in drugs
and your history of criminal conduct demonstrates that these are necessary to protect the
public from future crime by you.”
{¶19} Mr. Passalacqua raises one assignment of error for our review:
{¶20} “The trial court erred by sentencing the defendant-appellant to consecutive
prison sentences in case numbers 22 CR 000084 and 21 CR 000978, totaling thirty
months, as that sentence is contrary to law.”
Consecutive Sentences
{¶21} In his sole assignment of error, Mr. Passalacqua contends the trial court
erred by sentencing him to consecutive sentences because the record does not clearly
and convincingly support its findings. He further contends his sentence is “contrary to
law” because he wishes to obtain intensive inpatient treatment in keeping with the
purposes of community control.
{¶22} An appellate court reviews the trial court’s imposition of consecutive
sentences pursuant to R.C. 2953.08(G)(2), which permits us to modify or vacate
consecutive sentences if we clearly and convincingly find (a) the record does not support
the trial court’s findings under R.C. 2929.14(C)(4) or (b) the sentence is otherwise
contrary to law.
{¶23} R.C. 2929.41 creates a statutory presumption in favor of concurrent
sentences, providing, in pertinent part, that “[e]xcept as provided in * * * division (C) of
section 2929.14, * * * a prison term * * * or sentence of imprisonment shall be served
6
Case Nos. 2023-L-013, 2023-L-014
concurrently with any other prison term * * * or sentence of imprisonment imposed by a
court of this state * * *.” R.C. 2929.41(A). R.C. 2929.14(C)(4), in turn, provides, “[i]f
multiple prison terms are imposed on an offender for convictions of multiple offenses, the
court may require the offender to serve the prison terms consecutively” if it finds (1) “the
consecutive service is necessary to protect the public from future crime or to punish the
offender”; (2) “consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public”; and (3) any of the
following:
{¶24} “(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
{¶25} “(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender’s conduct.
{¶26} “(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.”
{¶27} The Supreme Court of Ohio has held that “[i]n order to impose consecutive
terms of imprisonment, a trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
7
Case Nos. 2023-L-013, 2023-L-014
entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The trial court is not required
“to give a talismanic incantation of the words of the statute, provided that the necessary
findings can be found in the record and are incorporated into the sentencing entry.” Id.
Otherwise, “the imposition of consecutive sentences * * * is contrary to law.” Id.
{¶28} In addition, “as long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld.” Id. at ¶ 29. In other
words, “‘If the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we “clearly and
convincingly” find “[t]hat the record does not support the court’s findings[.]”’” State v.
Haynes, 11th Dist. Lake No. 2022-L-009, 2022-Ohio-4464, ¶ 48, quoting State v. Venes,
2013-Ohio-1891, 992 N.E.2d 453, ¶ 19 (8th Dist.), quoting R.C. 2953.08(G)(2)(a).
{¶29} Mr. Passalacqua contends the trial court’s findings are not supported by the
record because his probation violations were for drug use and failure to report to the Adult
Probation Department. Thus, there is nothing to suggest he is a danger to the public,
even though his underlying offenses were, in part, for trafficking drugs out of his home.
{¶30} Quite simply, the record contradicts Mr. Passalacqua’s contentions. As our
review of the sentencing hearing transcript reveals, Mr. Passalacqua has not altered his
behavior since being convicted for aggravated trafficking in drugs/aggravated possession
of drugs in the 2021 case. While that case was pending, Mr. Passalacqua was charged
with aggravated possession of drugs in the 2022 case. Mr. Passalacqua did not simply
violate three rules of his community control but failed numerous conditions, i.e., he is still
8
Case Nos. 2023-L-013, 2023-L-014
an active drug user, remains unemployed, and failed to get his driver’s license reinstated.
After violating his initial terms of community control and undergoing a 30-day jail treatment
program, he again returned to the same environment and the same criminal behavior. In
addition, as the trial court noted, Mr. Passalacqua has an extensive criminal history, which
began when he was a juvenile and includes several violent offenses.
{¶31} Under these circumstances, we cannot say the record does not “clearly and
convincingly” support the trial court’s findings. Nor is Mr. Passalacqua’s sentence
contrary to law simply because after repeatedly pleading guilty to violating his community
control (in a span of just seven months), he now wishes to undergo an intensive treatment
program in lieu of prison.
{¶32} Mr. Passalacqua’s sole assignment of error is without merit.
Nunc Pro Tunc
{¶33} We do note, however, that the trial court failed to incorporate its consecutive
findings in the sentencing entries of both cases. A trial court’s failure to incorporate the
findings required by R.C. 2929.14(C) in the sentencing entry after making those findings
at the sentencing hearing does not render the sentence contrary to law and may be
corrected via a nunc pro tunc entry. State v. Burke, 11th Dist. Trumbull Nos. 2018-T-
0032 & 2018-T-0035, 2019-Ohio-1951, ¶ 152; Bonnell at ¶ 30. See also State v. Olp,
11th Dist. Ashtabula Nos. 2015-A-0033 & 2015-A-0034, 2016-Ohio-3508, ¶ 19; State v.
Elliott, 11th Dist. Trumbull No. 2021-T-0045, 2023-Ohio-412, ¶ 12. The proper procedure,
therefore, is to affirm the judgment but remand the matter for the trial court to issue nunc
pro tunc sentencing entries incorporating the R.C. 2929.14(C) findings that were made at
the sentencing hearing. Burke at ¶ 154.
9
Case Nos. 2023-L-013, 2023-L-014
{¶34} Based on the foregoing, we affirm the judgments of the Lake County Court
of Common Pleas but remand for the trial court to issue nunc pro tunc sentencing entries
that incorporate its consecutive sentence findings pursuant to R.C. 2929.14(C).
JOHN J. EKLUND, P.J.,
EUGENE A. LUCCI, J.,
concur.
10
Case Nos. 2023-L-013, 2023-L-014
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"1",
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Law
9881050
[SEGMENT 1]
[CITATION]
FIFTH DIVISION
June 28, 2024
No. [CITATION]
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. No. 22 CR 3
)
LOUIS HAMPTON, ) Honorable
) Peggy Chiampas,
Defendant-Appellant. ) Judge presiding.
JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justice Lyle concurred in the judgment and opinion.
Justice Navarro dissented, with opinion.
OPINION
¶1 Defendant Louis Hampton was convicted of being an armed habitual criminal (AHC) (720
ILCS 5/24-1.7(a) (West 2020)) and sentenced to six years in prison. On appeal, he argues he was
denied a fair trial because the trial court refused to instruct the jury that, to find him guilty, it had
to find that he “knowingly” possessed a firearm. For the following reasons, we reverse and remand
for a new trial.
¶2 I. BACKGROUND
¶3 The State charged Mr. Hampton by indictment with AHC and other related offenses. The
AHC count alleged that he “knowingly or intentionally possessed a firearm” after being convicted
of certain other felonies. Before jury selection, the trial court read that language to the prospective
jurors.
¶4 During opening statements, defense counsel asserted that Mr. Hampton was not guilty of No. 1-23-0171
AHC because, although police officers discovered a firearm underneath the seat in a vehicle he
was driving, the State could not prove that he knew the firearm was there.
¶5 Chicago police officer Michael Carreon testified that, around 7 p.m. on November 16,
2021, he and three other officers drove past a Jeep with an inoperable headlight. Officer Carreon
made a U-turn, caught up to the Jeep, and activated his police vehicle’s lights, siren, and spotlight.
The Jeep turned left onto another street, and the spotlight illuminated the driver’s side of the Jeep.
Officer Carreon testified that he observed the Jeep’s driver “make a forward movement” while
“leaning towards the floorboard of the vehicle.” The Jeep traveled about a quarter of a block more
and pulled over.
¶6 Officer Carreon approached the Jeep and encountered Mr. Hampton, whom he identified
in court, in the driver’s seat. Officer Carreon testified that he smelled fresh cannabis through the
open driver’s side window. Mr. Hampton gave Officer Carreon identification that was not a
driver’s license and insurance documentation for the Jeep that did not specifically list him as an
insured driver. According to Officer Carreon, Mr. Hampton did not make eye contact and appeared
nervous. Officer Carreon asked Mr. Hampton to put the vehicle in park, which he did. He then
asked Mr. Hampton to exit the Jeep, but Mr. Hampton refused. Officer Carreon asked Mr.
Hampton to exit several more times over the course of about five minutes. At that point, the car’s
passenger, whom the officer had also been asking to leave the car, exited, and as that person did
so, all the Jeep’s doors unlocked. Officer Carreon opened the driver’s door and again asked Mr.
Hampton to exit the vehicle. Mr. Hampton complied and was placed in handcuffs.
¶7 Officer Carreon then looked into the driver’s side of the car and found a loaded, black,
semiautomatic pistol “protruding” from underneath the seat. He “had to do a slight lean” to see the
firearm, which “wasn’t deep underneath the seat,” but the firearm was not buried under anything.
No. 1-23-0171
As the officers attempted to place Mr. Hampton in a police vehicle, he pulled away “pretty
aggressive[ly]” and attempted to flee.
¶8 The State published footage from Officer Carreon’s body-worn camera. It is included in
the record on appeal and has been reviewed by this court. It depicts officers parking their vehicle,
exiting, and approaching a dark SUV. Officer Carreon approaches Mr. Hampton, the driver of the
SUV, but there is no audio until approximately 30 seconds into their conversation. When the audio
begins, Mr. Hampton asks why the officer has stopped him, and Officer Carreon responds that one
of his headlights is out. Mr. Hampton states that the vehicle is his “girl’s” and provides an
identification card, which the officer notes is not a driver’s license, as well as proof of insurance,
which the officer notes does not list Mr. Hampton as an insured driver of the vehicle. Officer
Carreon asks Mr. Hampton if there is a gun in the car, and either Mr. Hampton or the passenger
responds “No.”
¶9 Officer Carreon then asks Mr. Hampton to step out of the vehicle. Mr. Hampton does not
comply; he asks the officer to call “a white shirt,” which Officer Carreon testified means a senior
officer or supervisor. Officer Carreon asks multiple times if Mr. Hampton has any “weed” in the
vehicle, and Mr. Hampton responds that he does not. Mr. Hampton speaks to someone else as if
on the phone. He repeatedly declines the officer’s requests to exit the vehicle. After a few minutes
of conversation, Officer Carreon opens the driver’s door, grabs Mr. Hampton’s shoulder, and tells
him to step out. Mr. Hampton complies. The officers pat him down and handcuff him. Officer
Carreon leans into the vehicle from the open driver’s door, but the camera points towards the street.
As he straightens, the camera depicts him holding a firearm. He also searches the rear driver’s side
of the vehicle. As the officers go to place Mr. Hampton in the police vehicle, the camera is
obstructed, and the officers repeatedly say that he is making it “worse” for himself and is going to
No. 1-23-0171
be charged with resisting.
¶ 10 At trial, Officer Carreon marked on a still image from his body-worn camera footage the
place where he discovered the firearm. He noted that the firearm was not visible from the angle
the image was taken, so he marked on the seat the spot where the firearm was beneath the seat.
The image is included in the record on appeal and depicts a red mark a few inches back from the
front of the seat.
¶ 11 On cross-examination, Officer Carreon acknowledged that his camera footage did not
depict him asking Mr. Hampton why he reached downwards. On redirect examination, he testified
he did not ask that because he did not want Mr. Hampton to flee the traffic stop.
¶ 12 Chicago police officer Timothy Karn testified that he tested the firearm Officer Carreon
identified, a 9-millimeter semiautomatic pistol, and it was functional. The firearm’s magazine
could hold 12 rounds, with 1 additional round in the chamber. The State entered stipulations that
Mr. Hampton had two prior convictions qualifying him for AHC and that there were four
fingerprint impressions on the firearm’s magazine but that they were unsuitable for identification.
¶ 13 Mr. Hampton called his girlfriend, Darshay Scott, as a witness. Ms. Scott testified that she
owned the Jeep that Mr. Hampton had been driving. She also owned a black 9-millimeter firearm
and had been issued a Firearm Owner’s Identification (FOID) card in 2017. She explained that an
ex-boyfriend gave her the firearm in 2019. She kept it in a closet at her sister-in-law’s home rather
than at her own home, as she had an autistic son. On November 16, 2021, her sister-in-law had a
party. There were children present, including Ms. Scott’s. Ms. Scott therefore took the firearm to
her Jeep and placed it under the driver’s seat. She did not tell Mr. Hampton, who was talking to
Ms. Scott’s sister at the time. A few hours later, Mr. Hampton borrowed Ms. Scott’s Jeep to drop
off a friend.
No. 1-23-0171
¶ 14 On cross-examination, Ms. Scott testified that she had one biological daughter and, in
November 2021, three foster children. She took the firearm to her sister-in-law’s home in 2019
when she got her foster children. Ms. Scott had not been to her sister-in-law’s house between then
and the party, as they had been “having difficulties.” She believed the firearm could hold 15
rounds, could not pronounce the name of the manufacturer, and did not know the model. She never
had a case or holster for the firearm.
¶ 15 Before Mr. Hampton was arrested, Ms. Scott was on Facetime with him. She testified that
she did not tell him in that conversation about the firearm in the Jeep. When asked whether she
thought it was important to tell him there was a loaded gun in the car, she said that she had been
drinking and was under the influence. After Mr. Hampton was arrested, Ms. Scott went to the
police station and told officers the firearm was hers. An investigator from the state’s attorney’s
office came to her home later, but she did not give a statement because she was on her way out.
The investigator left his contact information, but Ms. Scott did not contact him.
[SEGMENT 2]
¶ 16 On redirect examination, Ms. Scott identified the firearm Officer Carreon recovered as the
one she had placed under the seat in her vehicle, although she noted the “clip” that had been in the
firearm was missing. The defense entered a stipulation that Ms. Scott had title to the Jeep and a
valid FOID card.
¶ 17 During the jury instructions conference, the court noted the State had proposed an
instruction defining AHC. The instruction provided that “[a] person commits the offense of [AHC]
when he possesses any firearm after previously being convicted of two qualifying felony offenses.”
Defense counsel objected that the instruction was improper because it “remove[d] the knowingly
portion, the requirement that he have the mens rea.” The State responded that the instruction
tracked the language of the AHC statute and that there would also be a “possession instruction.”
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'people-v-wallace', which should be replaced with `[CITATION]`. No. 1-23-0171
The court overruled defense counsel’s objection.
¶ 18 The next proposed instruction, to which counsel did not object, was Illinois Pattern Jury
Instructions, Criminal, No. 4.16 (4th ed. 2000) (hereinafter IPI Criminal 4th). That instruction
provided that “[a] person has actual possession when he has immediate and exclusive control over
a thing. A person has constructive possession when he lacks actual possession of a thing but he
has both the power and the intention to exercise control over a thing ***.” Id.
¶ 19 In closing argument, the State referenced both actual and constructive possession, although
it spent more of its argument explaining why the jury should find that Mr. Hampton had
“constructive possession.” The State also noted that defense counsel repeatedly argued that, to find
Mr. Hampton guilty, the jury would need to find that he knew the firearm was in the Jeep. In
rebuttal, the State argued that Mr. Hampton “leaned forward because of this firearm that he had in
the car that he knew he wasn’t supposed to have.”
¶ 20 The court issued the jury instructions and released the jury for deliberations around 5:39
p.m. At about 7:30 p.m., the jury sent a note asking if the firearm was registered to Ms. Scott or,
if not, “registered in general.” The parties agreed the court should answer that the jurors had the
instructions on the law and should continue to deliberate. At 7:55 p.m., the jurors sent another note
stating that they were not unanimous—“[p]arties have indicated there is nothing that can change
their opinion”—and asking what to do. The court instructed them to continue deliberating. Around
8:57 p.m., the court released the jury for the night. The next morning, the jury began deliberating
again around 10:35 a.m. At 1:57 p.m., the jury reached a verdict and found Mr. Hampton guilty of
AHC.
¶ 21 Mr. Hampton filed a motion for a new trial in which he did not specifically argue that the
court erred in failing to instruct the jury that the State had to prove he “knowingly” possessed the
No. 1-23-0171
firearm. The court denied the motion and sentenced Mr. Hampton to six years in prison.
¶ 22 II. JURISDICTION
¶ 23 Mr. Hampton was sentenced on January 12, 2023, and he filed his notice of appeal the
same day. We have jurisdiction over this appeal under article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)
and Rule 606 (eff. Mar. 12, 2021), governing appeals from final judgments in criminal cases.
¶ 24 III. ANALYSIS
¶ 25 On appeal, Mr. Hampton argues that the trial court violated his right to a fair trial by
refusing his request to instruct the jurors that, to find him guilty of AHC, they had to find that he
“knowingly” possessed a firearm. Mr. Hampton asserts that as the jury instructions failed to inform
the jury of that required mental state, an element of the offense, the instructions failed to accurately
convey the applicable law. The parties agree that, where, as here, the issue is whether the jury
instructions accurately stated the law, our standard of review is de novo. [CITATION], ¶ 45.
¶ 26 Initially, the State argues that Mr. Hampton has forfeited this issue by failing to raise it in
his posttrial motion. See [CITATION], ¶ 32 (noting that, to preserve alleged
error for review, a defendant must both specifically object at trial and raise the issue in a posttrial
motion). Mr. Hampton argues that the issue was preserved for appeal, as counsel objected to the
instruction at trial, and the trial court’s error implicates his due process right to a fair trial and is
therefore constitutional and cannot be forfeited. See [CITATION], ¶ 16
(“constitutional issues that were properly raised at trial and may be raised later in a postconviction
petition” are not subject to forfeiture for failure to file a posttrial motion). Alternatively, he asks
us to review the issue for plain error or to conclude that his trial counsel provided ineffective
No. 1-23-0171
assistance by failing to preserve the issue.
¶ 27 Because we find that Mr. Brown’s claim of error succeeds on the basis of first prong plain-
error, we need not reach these alternative bases for avoiding forfeiture. Under the plain-error
doctrine, we may review a forfeited claim where a clear or obvious error occurred and (1) “the
evidence is so closely balanced that the error alone threatened to tip the scales of justice against
the defendant, regardless of the seriousness of the error” or (2) “the error is so serious that it
affected the fairness of the defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence.” (Internal quotation marks omitted.) [CITATION], ¶ 55; see also Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013) (noting that
substantial defects in jury instructions “are not waived by failure to make timely objections thereto
if the interests of justice require”). The first step in plain-error review is determining whether an
error occurred. [CITATION], ¶ 55.
¶ 28 Jury instructions are intended to help jurors properly apply the law to the evidence
presented and reach a correct verdict. [CITATION], ¶ 15, overruled on other grounds by [CITATION]. Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) provides that, when the Illinois
Pattern Jury Instructions (IPI) contain an applicable instruction, that instruction “shall be used,
unless the court determines that it does not accurately state the law.” [CITATION], ¶ 15. Where no applicable IPI instruction exists, the court has discretion to give a
nonpattern instruction. Id. The nonpattern instruction “should be simple, brief, impartial, and free
from argument.” Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013).
¶ 29 At the time of Mr. Hampton’s trial, the IPI did not contain an instruction defining AHC or
listing its elements. The court therefore had no choice but to give a nonpattern instruction
No. 1-23-0171
explaining what the State had to prove to convict Mr. Hampton of AHC. The instruction the court
gave provided that “[a] person commits the offense of [AHC] when he possesses any firearm after
previously being convicted of two qualifying felony offenses.”
¶ 30 In our view, this instruction did not accurately state the law because it failed to convey to
the jury that it had to find that Mr. Hampton knowingly had possession of the gun. Section 24-
1.7(a) of the Criminal Code of 2012 (720 ILCS 5/24-1.7(a) (West 2020)) provides that a person
commits AHC when he receives, sells, possesses, or transfers a firearm after having been convicted
of two or more qualifying offenses. The statute does not expressly provide that the defendant must
“knowingly” possess a firearm, nor does it require any other mental state. See id. But since this is
clearly not an absolute liability offense, a mental state must be inferred. See [CITATION], 2023 IL
128123, ¶¶ 20-22.
¶ 31 Our supreme court addressed this issue recently in [CITATION]. The court held there that,
where a defendant is charged with possession of a defaced firearm, the State is required to prove
the defendant’s knowledge of both the possession and the defacement. Id. ¶ 25. As the court
recognized, where a statute does not prescribe a mental state or create an absolute liability offense,
the applicable mental state is either intent, knowledge, or recklessness. Id. ¶ 22. As the [CITATION]
court further explained, where an offense is possessory in nature and the statute does not include
[SEGMENT 3]
a specific mental state, “knowledge is the appropriate mental state.” Id. Thus, as [CITATION] makes
clear, the elements of AHC include both (1) knowing possession of a firearm and (2) two or more
prior qualifying convictions. [CITATION], 2023 IL App (1st) 200917, ¶ 38 (citing [CITATION],
2023 IL 128123, ¶ 22); see also 720 ILCS 5/4-2 (West 2020) (noting that possession is a voluntary
act only if “the offender knowingly procured or received the thing possessed, or was aware of his
control thereof for a sufficient time to have been able to terminate his possession”).
====== End of Document ====== No. 1-23-0171
¶ 32 Here, the court’s jury instruction provided that a person commits AHC “when he possesses
any firearm after previously being convicted of two qualifying felony offenses.” The instruction
did not specify that the person must “knowingly” possess the firearm. Nor did it, or any other
instruction, otherwise indicate that knowledge was an element of AHC. The jury instructions
therefore failed to apprise the jury of an essential element of the charged offense.
¶ 33 The State argues that the instruction was sufficient because it tracked the statute, which
also does not provide a specific mental state. The State cites [CITATION], for the “general rule” that “instructing the jury in the elements of an offense as
the offense is defined in the statute is sufficient.” Mr. Hampton responds that [CITATION] rests on an
“outdated” statute, which has since been amended to explicitly include a mental state, and an
“antiquated” distinction between general and specific intent crimes. We need not decide in this
case whether [CITATION] is still good law since the court recognized there that “the failure to include
a mental state in the jury instructions is grounds to reverse a conviction where the record reveals
that the principal contested issue was [the] defendant’s mental state.” Id. at 833. Certainly, this
was the principal contested issue in this case.
¶ 34 The State also argues that the instructions, as a whole, accurately stated the law because
the instructions given to the jury defined possession as follows:
“Possession may be actual or constructive. A person has actual possession when he has
immediate and exclusive control over a thing. A person has constructive possession when
he lacks actual possession of a thing but he has both the power and the intention to exercise
control over a thing ***.” IPI Criminal 4th No. 4.16.
¶ 35 While we agree with the State that an “intention to exercise control” likely encompasses
knowledge, the instructions also allowed the jury to find Mr. Hampton guilty based on actual,
- 10 - No. 1-23-0171
rather than constructive, possession. Certainly, a defendant could have immediate and exclusive
control over a firearm without necessarily knowing that it is there. Where, as here, the jury could
have found actual or constructive possession, the fact that a finding of constructive possession
would encompass a finding of knowledge simply does not cure the deficiency in the AHC
instruction.
¶ 36 We must next determine whether the error in the instructions satisfies either prong of the
plain-error doctrine. We find there was plain error under the first, “closely balanced” prong. As
our supreme court has made clear, there is “plain error” where “the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error.” (Internal quotation marks omitted.) [CITATION], ¶ 55. To
determine whether evidence was closely balanced, we “evaluate the totality of the evidence and
conduct a qualitative, commonsense assessment of it within the context of the case.” [CITATION], ¶ 53. The defendant bears the burden of persuasion. [CITATION], ¶ 55.
¶ 37 The State and Mr. Hampton presented two competing versions of events, relative to
whether Mr. Hampton knew the firearm was under his seat in the vehicle. On one hand, Officer
Carreon testified that he observed Mr. Hampton lean toward the floor, Mr. Hampton appeared
nervous and repeatedly refused to exit the vehicle, and, when he did exit the vehicle, Officer
Carreon found the firearm underneath the driver’s seat where he had seen Mr. Hampton reach.
¶ 38 On the other hand, Mr. Hampton told Officer Carreon that there were no firearms in the
vehicle, the vehicle was his “girl’s,” the firearm was not visible until Officer Carreon leaned down
to search under the seat, and Mr. Hampton’s girlfriend Ms. Scott testified that both the firearm and
the vehicle belonged to her. Ms. Scott further testified that she had placed the firearm in the vehicle
- 11 - No. 1-23-0171
to remove it from a party with children. She was under the influence of alcohol at the time and did
not tell Mr. Hampton what she had done, and Mr. Hampton borrowed her vehicle to drop off a
friend. The parties stipulated that Ms. Scott had title to the vehicle and a valid FOID card. No
forensic evidence connected Mr. Hampton to the firearm.
¶ 39 The jury might have believed Ms. Scott, or it might have accepted the State’s circumstantial
evidence that Mr. Hampton had placed the gun under the seat. No extrinsic evidence corroborated
or contradicted either version of events. Alternatively, one or more jurors may have believed that
it did not matter whether Mr. Hampton knew the gun was there, since he was driving a car with a
gun under the driver’s seat, and this gave him immediate and exclusive control over the gun. Thus,
Mr. Hampton could have been found guilty based on actual possession and the incomplete and
therefore incorrect statement of the law set out in the AHC instruction.
¶ 40 During deliberations, the jurors sent a note asking whether the firearm was registered to
Ms. Scott or “registered in general.” About half an hour later, they sent another note indicating
that they were deadlocked. The court sent the jurors home for the night, and they deliberated for
several more hours the next day before finding Mr. Hampton guilty. The jurors’ notes indicate that
they were struggling to reach a consensus on whether the State had proven its case. See [CITATION].
¶ 41 The State points out both that the indictment charged Mr. Hampton with knowingly or
intentionally possessing a firearm and the court read that language to the prospective jurors, and
that the parties repeatedly indicated in their opening statements and closing arguments that the jury
would have to find Mr. Hampton knew of the firearm’s presence to find him guilty. The State
argues that this rendered any deficiency in the instructions harmless. But when the jury indicated
- 12 - No. 1-23-0171
it was deadlocked, the court instructed it to look again to the jury instructions. It also admonished
the jurors, as it always does, that it would instruct them on the law, that the law they should apply
to the case was stated in the jury instructions, and that the opening and closing arguments made
by the lawyers did not constitute evidence and should be “disregarded” if not based on the
evidence.
¶ 42 “Omitting an element of the offense from a jury instruction is harmless if the reviewing
court determines, beyond a reasonable doubt, that the error did not contribute to the verdict.”
[CITATION]; see [CITATION] (where evidence was closely balanced, State could not show that error in jury instruction was “harmless beyond a reasonable
doubt”). We are not convinced that the trial court’s refusal to instruct the jury on the principal
contested issue of Mr. Hampton’s knowledge, when the evidence was closely balanced and the
jury indicated that it was struggling to reach a verdict and was told to review the jury instructions,
was harmless.
¶ 43 We note that double jeopardy principles do not bar retrial, as viewing Officer Carreon’s
testimony and body-camera footage in the light most favorable to the State, the trial evidence was
sufficient for a rational juror to find that Mr. Hampton had knowledge that he possessed the gun
and was therefore guilty. See [CITATION], ¶¶ 20-21 (double jeopardy does
not bar retrial when conviction is overturned due to procedural error unless trial evidence, viewed
in light most favorable to the prosecution, was insufficient to sustain the conviction). Thus, we
remand this case for a new trial.
¶ 44 Finally, while the State does not expressly rely on this, both parties address the fact that,
subsequent to Mr. Hampton’s trial, IPI instructions were promulgated that now define AHC in the
- 13 - No. 1-23-0171
same way the trial court did in this case. See Illinois Pattern Jury Instructions, Criminal, Nos.
18.07B, 18.08B (approved Feb. 3, 2023) (hereinafter IPI Criminal Nos. 18.07B, 18.08B). The
instructions provide (1) that a person commits AHC when he receives, sells, possesses, or transfers
any firearm after having been convicted of two qualifying offenses and (2) that to sustain a charge
of AHC, the State has to prove (a) that the defendant received, sold, possessed, or transferred a
firearm and (b) that he had previously been convicted of two qualifying offenses. Id. Thus, the IPI
[SEGMENT 4]
instructions promulgated for AHC after Mr. Hampton’s trial do not include the knowledge
requirement we find necessary here.
¶ 45 The dissent finds this compelling. We agree with the dissent that there is a rebuttable
presumption that IPI instructions accurately reflect the law. Our supreme court rules require that
“the IPI Criminal instruction shall be used, unless the court determines that it does not accurately
state the law.” Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013). However, Rule 451(a) also provides that a
trial court may modify an IPI instruction where it does not accurately state the law. Id.; [CITATION]; see [CITATION], ¶ 50 (non-IPI
instruction should be used if IPI instruction is inaccurate). As our supreme court has recognized,
pattern jury instructions, while extremely important and valuable to the administration of justice
in this state, “are not exempt from challenge.” [CITATION]. Such instructions are not judicially approved in advance, and “[a]n instruction is
approved or rejected only after it has been judicially questioned and considered.” Id.
¶ 46 Our judicial examination of IPI Criminal Nos. 18.07B, 18.08B leads us to conclude that
they do not correctly state the law. As we explain above, the gun possession element of AHC can
only be met where a defendant has knowledge that he is in possession of a gun. While that is not
explicit in the AHC statute, as Mr. Hampton notes, all of the other IPI instructions in Rule 18,
- 14 - No. 1-23-0171
which focus exclusively on weapons offenses, do require proof of knowledge or intent to convict.
This includes IPI instructions for crimes that do not include a mental state in the relevant statute.
For example, Illinois Pattern Jury Instructions, Criminal, No. 18.17 (approved July 28, 2023)
(hereinafter IPI Criminal No. 18.17) provides: “A person commits the offense of unlawful
possession of [(firearms) (firearm ammunition) (handguns)] when he *** is under 18 years of age
and knowingly has in his possession a [(firearm of a size) (handgun)] which may be concealed
upon his person.” This, despite the fact that the corresponding statute provides only that “(a) A
person commits the offense of unlawful possession of firearms or firearm ammunition when:
(1) He is under 18 years of age and has in his possession any firearm of a size which may be
concealed upon the person[.]” 720 ILCS 5/24-3.1 (West 2020). The committee note to IPI Criminal
No. 18.17 makes this clear, stating: “Although Section 24-3.1 does not include a mental state, any
possession must be knowing.” (Emphasis added.) IPI Criminal No. 18.17, Committee Note. Thus,
regardless of whether the statute contains an express mental state, one is required by all of the IPI
instructions on weapons offenses, except for AHC.
¶ 47 Neither of the parties has ventured an explanation for the omission of a mental state in the
IPI instructions for this one offense. The notes on the IPI instructions, which are often helpful,
provide no explanation. In short, we are at a loss for why the new IPI instruction on AHC does not
include this knowledge requirement. It is our role, as a court, to determine whether the instruction
given here complied with the law, and we find that it did not, whether or not it corresponds with a
later-promulgated pattern jury instruction. Obviously, we urge the committee to address this as
soon as possible. We also express no opinion on whether, in future cases, the failure to give an
instruction that includes the knowledge requirement will require reversal based on the facts of the
case.
- 15 - No. 1-23-0171
¶ 48 IV. CONCLUSION
¶ 49 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County
and remand for a new trial.
¶ 50 Reversed and remanded.
¶ 51 JUSTICE NAVARRO, dissenting:
¶ 52 I agree with the majority’s analysis that rejects the State’s forfeiture argument that Mr.
Hampton failed to raise his claim in his posttrial motion.
¶ 53 However, I respectfully disagree with the majority’s holding that the instructions given in
this case did not accurately state the law. As has been discussed, at the time of Mr. Hampton’s
trial, the IPI did not contain an instruction for AHC. As a result, the court gave a non-IPI instruction
for AHC. The instructions the court gave were the same instructions later promulgated after the
conclusion of Mr. Hampton’s trial. See IPI Criminal Nos. 18.07B, 18.08B.
¶ 54 Trial courts are directed to use the IPI instructions whenever possible and to only use non-
IPI instructions when necessary. See Ill. S. Ct. R. 451 (eff. Apr. 8, 2013). In this instance, the court
used a non-IPI instruction for AHC that later became the IPI. See IPI Criminal Nos. 18.07B,
18.08B. While IPI instructions are not exempt from challenge, I do not believe that the presumption
that the IPI instructions accurately reflect the law was rebutted here where the jury was instructed
on both AHC and possession. See IPI Criminal 4th No. 4.16. I agree with the majority that Mr.
Hampton’s mental state was a contested issue at trial. However, the AHC instruction, given in
conjunction with the possession instruction and taken with the indictment, renders any deficiency
in the instructions in defining a mental state harmless. See [CITATION],
¶ 56 (an error in a jury instruction is harmless if it is demonstrated that the result of the trial would
- 16 - No. 1-23-0171
not have been different had the jury been properly instructed). Thus, I respectfully dissent.
- 17 -
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'people-v-wallace', which should be replaced with `[CITATION]`.
There were no court ruling citations detected in the provided text. No. 1-23-0171
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 22-CR-3;
the Hon. Peggy Chiampas, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Kara Kurland, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Retha Stotts, and Lynnette Cusack, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
- 18 -
```plaintext
IL App (1st) 220127
SECOND DIVISION
June 25, 2024
No. 1-22-0127
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) 21 CR 03687
)
CHANDLE HAWTHORNE, ) Honorable
) Timothy Joseph Joyce,
Defendant-Appellant. ) Judge Presiding.
_____________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice Howse and Justice McBride concurred in the judgment and opinion.
OPINION
¶1 In 2012, defendant Chandle Hawthorne was arrested for selling heroin. He was 17 years
old, prosecuted as an adult, and ultimately convicted of the manufacture or delivery of heroin, a
Class 2 felony. Defendant picked up another serious drug conviction in 2015.
¶2 Fast forward to January 2021. After firing a weapon at an unoccupied car multiple times,
defendant was charged with being an armed habitual criminal (AHC). A defendant violates the
AHC statute if he possesses, sells, or transfers a firearm and he has been “convicted” twice of
certain qualifying predicate offenses. See 720 ILCS 5/24-1.7(a) (West 2020).
¶3 The State alleged that defendant’s 2012 and 2015 convictions qualified as the required
predicate felonies for the AHC charge. After a bench trial, the court convicted defendant on the
AHC and other counts and sentenced him to more than eight years in prison.
``` No. 1-22-0127
¶4 On appeal, defendant claims the evidence was insufficient to convict him of the AHC
offense because one of the two predicate convictions—the 2012 one—should not be considered a
“conviction” at all. He relies on a change to the Juvenile Court Act in 2014 under which, today,
[SEGMENT 5]
his drug conviction at age 17 likely would have been a juvenile adjudication instead. As such,
says defendant, the language of the AHC statute does not permit his 2012 conviction to serve as
the required second predicate offense, and he is thus not guilty of AHC as a legal matter.
¶5 Some appellate decisions have agreed with defendant’s interpretation. See [CITATION]. Others
disagreed with Gray and reached the opposite conclusion—that a conviction under these
circumstances qualifies as a proper predicate conviction for an AHC charge. See [CITATION].
¶6 As we explain below, we side with these latter decisions and disagree with defendant’s
interpretation of the AHC statute. Defendant’s 2012 conviction was a proper predicate
conviction under the language of the statute. We thus affirm.
¶7 BACKGROUND
¶8 As the facts are undisputed and the question before us strictly legal, our discussion of the
facts is brief. Defendant was charged with various offenses, including AHC, for discharging a
weapon at an unoccupied car in January 2021. Two eyewitnesses and the responding police
officer testified at trial. That evidence aside, the parties agreed to several stipulations.
¶9 Relevant here, the parties stipulated that defendant had “a prior felony conviction for
(Note: The numbers and symbols such as `-2-` remain untouched.) No. 1-22-0127
manufacture and delivery of a controlled substance, which is a Class 1 offense, under case
number 15 CR 0234501, as well as manufacture and delivery of a controlled substance felony
conviction, Class 2, under case number 12 CR 2316301.” Defendant was born on February 7,
1995, and was 17 years old in 2012 when he was arrested in the No. 12-CR-2316301 case.
¶ 10 The court convicted defendant on the AHC count and others and sentenced him to eight
and a half years in prison. This appeal followed.
¶ 11 ANALYSIS
¶ 12 On appeal, defendant argues that the State failed to prove that he had two qualifying prior
convictions to sustain the AHC charge. Though properly couched as a challenge to the
sufficiency of the evidence, his argument is purely legal, a question of statutory construction, so
our review is de novo. See [CITATION].
¶ 13 The genesis of this argument was the appellate decision in [CITATION], which first held that a prior adult narcotics conviction that, under today’s laws,
likely would have been prosecuted as a juvenile adjudication, cannot serve as a predicate adult
conviction under the AHC statute. During briefing, our supreme court granted leave to appeal in
[CITATION], so at the State’s request and with defendant’s acquiescence, we stayed this appeal for
many months while we awaited the supreme court’s decision, which seemed all but certain to
resolve this question.
¶ 14 It did not. The supreme court reversed the appellate decision on the related but narrower
ground that Gray stipulated that his prior conviction, committed when he was 17, was a
qualifying predicate offense, thus conclusively waiving any claim that the State failed to prove
that element of the AHC charge. See [CITATION]. We lifted the stay and
now reach the merits of this appeal.
No. 1-22-0127
¶ 15 I
¶ 16 In its supplemental filing that we invited after the supreme court decided [CITATION], the State
takes a page from that decision, making the same argument here that prevailed there. But the
stipulation in [CITATION] was meaningfully different. [CITATION] stipulated that he “ ‘ha[d] two prior
qualifying felony convictions for the purposes of sustaining the charge of armed habitual
criminal.’ ” [CITATION], in other words, stipulated both to the fact of his convictions and their
legal impact under the AHC statute. See [CITATION] (“Defendant did not merely stipulate to the
admission of certified copies of his prior convictions or that he had been convicted of specified
felonies. *** Defendant’s stipulation established the facts that defendant had been convicted of
two prior felonies and that those felonies were qualifying felonies ***.” (Emphasis in original.)).
¶ 17 Here, as noted above, defendant stipulated only that he had “a prior felony conviction for
manufacture and delivery of a controlled substance, which is a Class 1 offense, under case
number 15 CR 0234501, as well as manufacture and delivery of a controlled substance felony
conviction, Class 2, under case number 12 CR 2316301.” He did not stipulate that these offenses
were qualifying predicate offenses under the AHC statute. To take a stipulation that was
obviously intended to do nothing more than relieve the State of the rudimentary task of
producing certified copies of his convictions—a courtesy to the prosecutor and the court—and
convert that into a waiver of a legal argument is a bridge too far.
¶ 18 II
¶ 19 The State also argues forfeiture—defendant did not raise this legal argument below. The
State reads the record correctly, but remember that, legal in nature though it may be, defendant’s
challenge is to the sufficiency of the evidence, just as it was characterized by the supreme court
in [CITATION]. See [CITATION]. A challenge to the sufficiency of the evidence cannot be forfeited.
No. 1-22-0127
[CITATION]
¶ 20 III
¶ 21 To the merits. Defendant’s argument concerns the language of the AHC statute and, to a
lesser extent, a provision of the Juvenile Court Act. Our principal goal in interpreting a statute is
to give effect to the legislature’s intent, expressed by the plain and ordinary meaning of the
statutory language. [CITATION] We review the statute as a whole,
giving effect to each provision if possible, and seek to avoid an interpretation that would lead to
absurd or unjust results. Id. We will not read into a statute exceptions, conditions, or limitations
not expressed by the legislature. [CITATION]
¶ 22 In 2012, when defendant committed the predicate offense in question here, section 5-120
of the Juvenile Court Act provided that, with certain exceptions not relevant here, “no minor who
was under 17 years of age at the time of the alleged offense may be prosecuted under the
criminal laws of this State.” 705 ILCS 405/5-120 (West 2012). So at the time defendant was
charged with delivery of heroin in 2012, the juvenile court had exclusive jurisdiction to
adjudicate that offense if committed by persons age 16 or younger. Id. Defendant, as noted, was
not “under 17” in 2012—he was 17—so this statute did not apply to him, and he was tried and
convicted as an adult.
¶ 23 In 2014, the General Assembly raised the age for exclusive juvenile jurisdiction from 16
to 17 years of age, again with certain exceptions not relevant here. See Pub. Act 98-61, § 5 (eff.
Jan. 1, 2014) (amending 705 ILCS 405/5-120, 5-130). With this change, a 17-year-old who
committed the same crime as defendant did in 2012, but who did so on or after January 1, 2014,
would presumptively be subject to juvenile-court jurisdiction, where he would not be
“convicted” of a criminal offense but, at worst, adjudicated delinquent.
No. 1-22-0127
¶ 24 Notably, Public Act 98-61 included a saving clause, providing that this change to
juvenile-court jurisdiction “appl[ies] to violations or attempted violations committed on or after
the effective date of this amendatory Act.” Id. (amending 705 ILCS 405/5-120). And our
supreme court held that a 17-year-old who committed criminal sexual assault and abuse before
January 1, 2014 (specifically, June 2013) could still be tried as an adult under the previous
version of the law, notwithstanding that his prosecution took place largely after January 2014,
without violating equal protection. [CITATION], ¶ 10.
¶ 25 Still, there is no question that, had defendant committed his 2012 predicate offense in
January 2014 or thereafter, he quite possibly would not have been tried, much less convicted, in
adult court (absent a successful attempt by the State at a discretionary transfer, which we will
discuss shortly). At most, he likely would have received an adjudication of delinquency in
juvenile court. This distinction is critical because adjudications of delinquency are not
“convictions” under Illinois law. [CITATION].
¶ 26 With this in mind, the language of the AHC statute follows. We have our reasons for
printing the substantive provision in full, as we discuss later, but the most relevant provisions are
subsections (a) and (a)(3):
“(a) A person commits the offense of being an armed habitual criminal if he or
she receives, sells, possesses, or transfers any firearm after having been convicted a total
of 2 or more times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a
[SEGMENT 6]
weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated
vehicular hijacking; aggravated battery of a child as described in Section 12-4.3
No. 1-22-0127
or subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation;
gunrunning; home invasion; or aggravated battery with a firearm as described in
Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) Any violation of the Illinois Controlled Substances Act or the Cannabis
Control Act that is punishable as a Class 3 felony or higher.” (Emphases added.)
ILCS 5/24-1.7 (West 2020).
¶ 27 Defendant focuses on the phrase “is punishable” in subsection (a)(3). As the phrase is
worded in the present tense, defendant says that the predicate drug offense must be punishable as
a Class 3 felony as of the date the AHC offense was committed, not back when the conviction
occurred. Here, defendant’s alleged AHC offense took place in 2021. He argues that, for 17-
year-olds in 2021, like defendant was in 2012, this predicate drug offense is no longer
“punishable as a Class 3 felony or higher;” now it would be handled in juvenile court.
¶ 28 This was the reasoning of the appellate decision in [CITATION], which held that defendant’s
2002 conviction for narcotics delivery could not serve as a predicate offense for an AHC
violation allegedly committed in 2016. See [CITATION], ¶ 16 (“the
prosecution showed that Gray had two prior felony convictions on his record, but for the
conviction for delivery of narcotics, the prosecution did not show that the conviction was for
conduct that ‘is punishable’ as a felony as of the date of the [AHC offense] in 2016”).
¶ 29 To be sure, the phrase “is punishable” refers to the present state of affairs. The AHC
statute looks to the offense level of that prior conviction as of the date the AHC offense was
allegedly committed. But it does not follow that we would adopt defendant’s overall
interpretation of the statute. We do not, for several reasons.
¶ 30 First, defendant’s analysis does not account for earlier language in subsection (a),
No. 1-22-0127
requiring that the State prove that defendant commit the firearm-related offense “after having
been convicted” two or more times of a qualifying offense. 720 ILCS 5/24-1.7(a) (West 2020).
“Having been convicted” is written in the present perfect tense, denoting an action that occurred
in the past and continues into the present. See [CITATION].
That describes defendant’s 2012 criminal disposition precisely. He was convicted of the
predicate offense in 2012, and it remains a conviction today. Again, the change to the Juvenile
Court Act in 2014 made clear that its amendment was prospective only, and our supreme court
has interpreted it as such. See [CITATION]. Defendant could not (and does
not) deny that he remains convicted of that 2012 offense today. So in literal terms, defendant’s
2012 conviction fits squarely into the “having been convicted” language.
¶ 31 Second, defendant makes too much of the “is punishable” language in subsection (a)(3).
It is clear to us that the General Assembly, in the AHC statute, wanted to punish individuals who
possess or transfer firearms after having been twice convicted not of just any crime but of
offenses that were of sufficient gravity—in subsection (a)(3), drug crimes of a certain offense
level. The offense level is how the legislature designates the seriousness of the crime. The use of
the present tense in the AHC statute allows the General Assembly to move certain drug crimes in
and out of the list of predicate crimes as it adjusts those offense levels over time (or legalizes the
behavior entirely), as social mores shift and public policy changes. (Just review the changes in
the laws governing the use of cannabis, one of the predicate statutes in subsection (a)(3), over the
last several years for an example.)
¶ 32 The “is punishable” language, in other words, describes the offense itself. As a matter of
grammar, it is undeniable that “is punishable” modifies the “violation” of the two drug statutes in
subsection (a)(3), the Illinois Controlled Substances Act and the Cannabis Control Act. And as a
No. 1-22-0127
literal matter, the offense for which defendant was convicted in 2012 is, today, as it was in 2021
when defendant committed the AHC offense, and as it has been consistently since 2012 and long
before, “punishable as a Class 3 felony or higher.”
¶ 33 Which means that defendant was “convicted” of heroin delivery in 2012, and that drug
offense “is punishable as a Class 3 felony or higher.” The AHC statute is satisfied.
¶ 34 Our third reason for disagreeing with defendant’s reasoning, and that of the Gray
appellate decision, is that there is no guarantee, even after January 1, 2014, that a 17-year-old
charged with delivery of heroin would have been subject to a disposition in juvenile court. A 17-
year-old charged with this offense in 2021 (the year defendant committed the firearm violation
prompting the AHC charge) could have been subject to a discretionary transfer to adult court.
See 705 ILCS 405/5-805(3) (West 2020) (permitting discretionary transfer of juveniles age 13 or
older to adult court, on motion of State, if juvenile court finds probable cause to believe
allegations are true and “it is not in the best interests of the public to proceed” in juvenile court).
¶ 35 We agree with another decision that departed from Gray that “it is speculative to assume
defendant would not have been subject to a discretionary transfer” under section 5-805(3). See
[CITATION], ¶ 38. A discretionary transfer was not even an option in
2012 for defendant, who was 17 and subject to adult-court jurisdiction without question. We
cannot simply assume as fact that defendant here, had he been subject to the amendment to the
Juvenile Court Act on or after January 1, 2014, would have received a juvenile-court disposition
as opposed to a criminal conviction.
¶ 36 The final reason we disagree with defendant’s interpretation is that it would lead to odd
results when we consider the AHC statute as a whole, as we must. [CITATION], ¶ 20.
Consider the subsections that precede subsection (a)(3). Subsection (a)(1) lists as a predicate
No. 1-22-0127
crime “a forcible felony as defined in Section 2-8 of this Code.” 720 ILCS 5/24-1.7(a)(1) (West
2020). No reference to an offense level, much less to the offender’s age or status as an adult or
juvenile. Either the forcible felony is listed in section 2-8 of the Criminal Code of 2012 or it
isn’t. See 720 ILCS 5/2-8 (West 2020).
¶ 37 But under defendant’s theory, which focuses on subsection (a)(3)’s language, not on the
“having been convicted” language at the outset of section (a), subsection (a)(1) would be
unaffected by the change to the Juvenile Court Act’s jurisdiction in 2014. A 17-year-old who
violates the Controlled Substances Act at a sufficiently high offense level can avoid having that
conviction used as a predicate under subsection (a)(3), but a 17-year-old who commits robbery
or burglary (both forcible felonies (see id.)) cannot have his conviction disregarded under
subsection (a)(1)?
¶ 38 The same is true of subsection (a)(2), which lists a number of predicate offenses without
any reference to offense level or age or status of the offender, including various gradations of
unlawful use of a weapon, home invasion, vehicular hijacking, aggravated battery, intimidation,
and the like. See id. § 24-1.7(a)(2). Once again, under defendant’s theory, those pre-2014
convictions when the defendant was 17 would count as predicates, but drug convictions under
subsection (a)(3) would not.
¶ 39 Under defendant’s theory, then, when confronted with prior convictions for offenses
committed when a defendant was a juvenile, which as of 2014 likely would be prosecuted in
juvenile court, subsection (a)(3) is all but erased from existence, but subsections (a)(1) and (a)(2)
remain entirely intact. That is not a reasonable or credible interpretation of the AHC statute.
¶ 40 Indeed, we have already seen this incongruity play out. This court considered this very
“anomaly” between subsections (a)(2) and (a)(3) in [CITATION].
- 10 - No. 1-22-0127
[SEGMENT 7]
201034-U, ¶ 20. Johnson was convicted of AHC based on a predicate conviction for home
invasion under subsection (a)(2) of the AHC statute. [CITATION] ¶ 17. Johnson was 15 years old when he
committed that home invasion in 2002. [CITATION] Johnson argued, based on the appellate decision in
[CITATION], that his 2002 home invasion conviction should not be used as a predicate conviction for
AHC, because he would have been prosecuted as a juvenile had he committed it today as a 15-
year-old. [CITATION] ¶ 14. The court in [CITATION] noted the very disharmony we discussed above:
“The language of subsection (a)(2) differs significantly from the language of
subsection (a)(3). Subsection (a)(2) requires only proof that the defendant possessed a
firearm “after having been convicted *** [of] home invasion” and a second qualifying
offense. *** Even though a 15-year-old charged with the same conduct would now
remain in the jurisdiction of the juvenile court, Johnson’s conviction qualifies as a
predicate conviction under the literal terms of the armed habitual criminal statute.
Nonetheless, we agree with Johnson that this result creates an anomaly. If the
current treatment of juveniles for conduct that violates narcotics statutes [under (a)(3)]
makes a prior conviction unavailable as grounds for an armed habitual criminal charge,
why should the current treatment of juveniles for conduct that constitutes home invasion,
vehicular hijacking, or unlawful use of a weapon by a felon [under (a)(2)] make no
difference for such a charge?” (Emphasis added.) [CITATION] ¶¶ 19-20.
¶ 41 We agree that it makes no sense to treat subsections (a)(2) and (a)(3) differently, absent
some signal from the legislature that nobody has cited and we cannot locate. But while the court
in [CITATION] settled this anomaly by doubling down on the reasoning in [CITATION] and applying it to
subsection (a)(2), thereby reversing Johnson’s AHC conviction ([CITATION] ¶ 24), even after recognizing
that this outcome was inconsistent with the “literal terms” of subsection (a)(2) ([CITATION] ¶ 19), we
- 11 - No. 1-22-0127
would respectfully highlight this incongruity to show the flaw in the reasoning of the Gray
appellate decision.
¶ 42 The better route, the one dictated by the plain language of the AHC statute, the one
avoiding speculation, and the one avoiding incongruous results among the subsections of section
(a), is to hold that defendant’s conviction for heroin delivery in 2012 qualifies as a predicate
offense under subsection (a)(3) of the AHC statute, notwithstanding that defendant might have
been tried as a juvenile had this offense been committed in 2021, when defendant committed the
firearm offense spawning the AHC charge.
¶ 43 We find no error in the use of defendant’s 2012 conviction for heroin delivery as one of
the two predicate offenses forming the AHC charge. Defendant was properly convicted of the
AHC charge.
¶ 44 CONCLUSION
¶ 45 The judgment of the circuit court is affirmed.
¶ 46 Affirmed.
- 12 -
====== No. 1-22-0127
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 21-CR-03687;
the Hon. Timothy Joseph Joyce, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Benjamin Wimmer, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Tasha-Marie Kelly, and Caitlin Chenus, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
- 13 -
2024 IL App (1st) 220827-U
THIRD DIVISION
June 20, 2024
No. 1-22-0827
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 19 CR 10131
)
ALYASA BROWN, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge Presiding.
____________________________________________________________________________
PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Lampkin and D.B. Walker concurred in the judgment.
ORDER
¶1 Held: Affirming defendant’s conviction for armed habitual criminal where his trial
counsel’s stipulation as to his prior convictions did not constitute ineffective assistance.
¶2 Following a bench trial, defendant Alyasa Brown was convicted of being an armed
habitual criminal (AHC), i.e., possessing a firearm after having been convicted of two prior
qualifying offenses (720 ILCS 5/24-1.7 (West 2020)), and he was sentenced to nine years in
prison. Defendant challenges his conviction, arguing that neither of his prior convictions for two
armed robberies—each committed when he was 16 years old—qualified as a “conviction” under
the AHC statute based on an amendment to the jurisdictional provisions of the Juvenile Court
Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2016)), which became 1-22-0827
effective in 2016. Citing the recent decision of the Illinois Supreme Court in [CITATION],
defendant contends that his trial counsel was ineffective for stipulating that he had qualifying convictions. For the reasons stated herein, we
affirm.
¶3 BACKGROUND
¶4 Defendant was arrested in 2008 and charged with armed robbery while armed with a
firearm (720 ILCS 5/18-2(a)(2) (West 2010)) and other offenses in two separate cases (08 CR
12767 and 08 CR 12768). At the time of each incident, defendant was 16 years old. He was
convicted of armed robbery in each case and sentenced to concurrent prison terms of 21 years.
Following his release from prison, defendant was arrested after an incident on July 3, 2019.
¶5 Defendant was in the passenger seat of a vehicle which was pulled over by an Illinois
State Trooper in the early morning hours of July 3, 2019, after the trooper noticed that the driver
was not wearing a seatbelt. Defendant owned the vehicle; the trooper confirmed that defendant
had a valid driver’s license and insurance. Upon detecting the odor of marijuana and observing
cannabis residue on defendant’s lap, the trooper directed him to exit from the vehicle and
performed a pat-down, which did not reveal any contraband on defendant’s person. When
questioned by the trooper, defendant indicated that there was a marijuana “blunt” in the vehicle.
The trooper then examined the vehicle and recovered a loaded firearm from under the passenger
seat. Defendant did not have a Firearm Owner’s Identification card or a concealed carry license.
¶6 Defendant was indicted in a five-count complaint for AHC (720 ILCS 5/24-1.7 (West
2020)), two counts of unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1
(West 2020)), and two counts of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6 (West
2020)). The AHC count referenced defendant’s two prior armed robbery convictions related to
1-22-0827
the 2008 incidents. After defendant filed a motion to quash arrest and suppress evidence—which
the trial court denied—the matter proceeded to a bench trial on the AHC count. 1
¶7 The trooper who effectuated the traffic stop testified, in part, regarding his recovery of
the handgun; a certified abstract of the vehicle registration was also submitted to the trial court.
The parties stipulated that defendant “has two qualifying felony convictions.”2 After the State
rested, the trial court denied defendant’s motion for a directed finding. Defendant did not testify
or otherwise present evidence. The trial court found defendant guilty of AHC.
¶8 Defendant moved to vacate the judgment and for a new trial, arguing that his proximity to
the firearm was insufficient to establish constructive possession for purposes of the AHC statute.
The trial court denied the motion and sentenced defendant to 9 years in prison and 18 months of
mandatory supervised release. His motion to reconsider sentence was also denied, and
defendant timely filed this direct appeal.
¶9 ANALYSIS
¶ 10 On appeal, defendant initially challenged the sufficiency of the evidence, i.e., he argued
that the State failed to prove him guilty of AHC as the prior offenses on which it relied were not
qualifying offenses. Defendant’s argument is premised on changes to the Juvenile Court Act.
[SEGMENT 8]
¶ 11 Juvenile Court Act
¶ 12 Article 5 of the Juvenile Court Act addresses delinquent minors. Section 5-120 states
that “no minor who was under 18 years of age at the time of the alleged offense may be
prosecuted under the criminal laws of this State,” except as provided in specified provisions of
The other counts were nol-prossed.
The assistant State’s attorney stated, in part, that “there is a stipulation by and between the
parties in this case that the defendant *** has two qualifying felony convictions.” Defense counsel then
stated, “So stipulated for the purpose of the charges in this case.” The trial court indicated that the
stipulation was allowed and moved into evidence.
1-22-0827
the Juvenile Court Act, including section 5-130. 705 ILCS 405/5-120 (West 2022). 3 At the time
that defendant committed the armed robberies at age 16 in 2008, section 5-130—which addresses
“[e]xcluded jurisdiction”—provided that the definition of a delinquent minor “shall not apply to
any minor who at the time of an offense was at least 15 years of age” and who was charged with
certain enumerated crimes, including “armed robbery when the armed robbery was committed
with a firearm.” 705 ILCS 405/5-130 (West 2008). As defendant accurately observes, the law in
effect in 2008 “required that he be automatically prosecuted in adult criminal court.” An
amendment to section 5-130 which became effective in 2016, however, removed armed robbery
as a basis for exclusion from the jurisdiction of the juvenile court. Compare [CITATION] and [CITATION].4
¶ 13 Parties’ Arguments on Appeal
¶ 14 Given that the 2016 amendment removed armed robbery from the list of offenses which
served as bases for adult criminal prosecution, defendant maintained that his convictions for
armed robberies committed in 2008 when he was 16 years old would not be considered
“convictions” and could not serve as predicate offenses for his AHC offense in 2019.
He acknowledged that his trial counsel had stipulated that his armed robbery convictions were
qualifying convictions under the AHC statute. Defendant argued, however, that even if his
challenge to the sufficiency of the evidence was forfeited, his counsel was ineffective for
entering the stipulation and for failing to contest the use of the prior offenses.
We note that an amendment to the Juvenile Court Act which became effective in 2014 changed
the age for juvenile court jurisdiction from 17 to 18, i.e., providing that 17-year-olds generally could no
longer be prosecuted under the criminal laws of Illinois. Compare [CITATION] and [CITATION].
The amendment also raised the age from 15 years old to 16 years old for those individuals
excluded from the jurisdiction of the juvenile court. Compare [CITATION] and [CITATION].
1-22-0827
¶ 15 In its appellee brief, the State responded that defendant was properly convicted of AHC,
as he possessed a firearm and stipulated to his qualifying prior convictions. According to the
State, the fact that defendant was 16 years old at the time of the armed robberies had no impact
on their use as predicate offenses for the AHC offense. The State alternatively argued that the
appeal should be held in abeyance while the Illinois Supreme Court “considers this precise issue”
in [CITATION]. After the completion
of briefing, we entered an order staying this appeal pending a dispositive ruling in [CITATION].
¶ 16 On March 21, 2024, our supreme court issued an opinion in [CITATION], which was
subsequently modified upon denial of rehearing. [CITATION]. The
defendant in [CITATION] had argued that the State failed to prove beyond a reasonable doubt that he
had the necessary predicate convictions for an AHC conviction as he was 17 years old at the time
of one of the predicate offenses alleged in the indictment. Id. ¶ 14. The appellate court reversed
the defendant’s AHC conviction, concluding that his earlier conviction would now be deemed a
delinquency adjudication in juvenile court, based on an amendment to the Juvenile Court Act.
Id. In reversing the judgment of the appellate court and remanding for further proceedings, the
Illinois Supreme Court concluded that defense counsel’s stipulation to the prior qualifying
offenses was “determinative of the matter,” i.e., the stipulation provided sufficient evidence to
convict the defendant of being an AHC. Id. ¶¶ 26, 27, 34. Although the defendant could not
directly attack the sufficiency of the evidence, our supreme court found that he could argue that
his counsel’s agreement to the stipulation constituted ineffective assistance of counsel. Id. ¶ 29.
Our supreme court concluded, however, that the defendant could not prevail on a claim of
ineffective assistance, as he conceded in his appellate brief that he had another adult felony
conviction which could serve as a qualifying offense under the AHC statute. Id. ¶ 32.
```plaintext
1-22-0827
¶ 17 Following the Illinois Supreme Court decision in Gray, we granted defendant’s request
for supplemental briefing to address the impact of the decision on this case. In his supplemental
briefs, defendant conceded that his trial counsel stipulated that his prior convictions were
qualifying offenses, and thus he could not challenge that evidence on appeal based on Gray.
Defendant argues, however, that his attorney was ineffective for stipulating to an element of
AHC. According to defendant, his attorney’s decision to stipulate was “particularly illogical”
given that defendant did not have a jury trial and thus was not concerned about jurors convicting
him based on his prior convictions. The State maintains that under the plain language of the
AHC statute, defendant’s armed robbery convictions in adult court were qualifying prior
convictions, and therefore his claim of ineffective assistance must fail.
¶ 18 Ineffective Assistance of Counsel
¶ 19 An ineffective assistance of counsel claim is subject to the standard set forth in Strickland
v. Washington, [CITATION]. “Under
Strickland, a defendant must establish that counsel’s performance fell below an objective
standard of reasonableness and the defendant was prejudiced by counsel’s substandard
performance.” [CITATION]. See [CITATION] (stating that “[a] defendant, to establish deficiency, must prove that counsel’s
performance, as judged by an objective standard of competence under prevailing professional
norms, was so deficient that counsel was not functioning as the ‘counsel’ guaranteed by the sixth
amendment”).
¶ 20 Defendant asserts that his attorney was ineffective for stipulating to an element of AHC,
i.e., his qualifying offenses. The State maintains that defense counsel did not perform deficiently
and defendant was not prejudiced, since the admission of his armed robbery convictions as
``` 1-22-0827
predicate convictions for AHC was proper. As discussed below, if the State’s interpretation of
the AHC statute is correct, then defendant’s ineffective assistance claim cannot succeed.
¶ 21 Statutory Interpretation Principles
¶ 22 Our analysis requires that we interpret the AHC statute. “The fundamental rule of
statutory interpretation is to ascertain and give effect to the legislature’s intent, and the best
indicator of that intent is the statutory language, given its plain and ordinary meaning.” [CITATION]. The statute must be considered as a whole; we must construe
words and phrases “relative to other pertinent statutory provisions,” not in isolation. Id. “Unless
the language of a statute is ambiguous, a court should not resort to further aids of construction
and must apply the statute as written.” [CITATION]. The construction
of a statute is a question of law subject to de novo review (id. ¶ 17), meaning that we perform the
same analysis that a trial court would perform. [CITATION].
¶ 23 The AHC Statute
¶ 24 The AHC statute provides, in pertinent part, that a person commits the offense of being
an armed habitual criminal if he possesses any firearm “after having been convicted a total of 2
or more times of any combination of the following offenses.” 720 ILCS 5/24-1.7(a) (West
2020). The statute then sets forth three enumerated categories of offenses, including subsection
(a)(1): “a forcible felony as defined in Section 2-8 of this Code.” Id. § 1.7(a)(1). Armed
robbery is a forcible felony under section 2-8. 720 ILCS 5/2-8 (West 2020) (listing robbery as
an enumerated forcible felony; providing that “any other felony which involves the use or threat
of physical force or violence against any individual” is a forcible felony). See also [CITATION], ¶ 32, pet. for leave to appeal allowed, No. 130173 (May 29,
1-22-0827
2024) (noting that armed robbery with a firearm is a forcible felony under the AHC statute).
¶ 25 In this case, defendant was found to have possessed a firearm after having been convicted
twice of armed robbery. 720 ILCS 5/24-1.7(a) (West 2020). Defendant asserts that if his armed
robbery offenses had occurred at the time of his arrest for AHC, they would have resulted in
[SEGMENT 9]
juvenile delinquency adjudications and not convictions. As Illinois courts have consistently
recognized, a juvenile delinquency adjudication is not a conviction ([CITATION]).
¶ 26 Nothing in the plain language of the AHC statute, however, indicates defendant’s prior
convictions should be recharacterized as juvenile delinquency adjudications. E.g., [CITATION] (noting that the “having been convicted” language in
the AHC statute is the grammatical equivalent of “if he/she was convicted” (emphasis in
original)). See also [CITATION] (holding that the
defendant’s conviction as a juvenile in adult court served as a conviction). We are not free to
read into a statute “exceptions, limitations, or conditions the legislature did not express.” [CITATION]
¶ 27 We further observe that the Illinois Appellate Court has repeatedly rejected defendant’s
reasoning. E.g., [CITATION] (finding that the plain language of the
AHC statute references past convictions for predicate offenses; concluding “that defendant was
‘convicted’ of armed robbery in 2008 (which remained a forcible felony in 2019), and this was
sufficient to serve as a predicate offense to being an armed habitual criminal”); [CITATION]
(stating that “all that matters is that defendant had a
conviction, and that conviction was for an offense described in subsection (a)(1) at the time
defendant committed the underlying conduct which resulted in the armed habitual criminal
1-22-0827
charge”). See also [CITATION] ¶ 18 (concluding that if a defendant
was convicted of a forcible felony before committing the act giving rise to the AHC charge, “that
conviction qualifies,” as the statute “expresses no exception, limitation, or condition such that
some forcible felony convictions qualify as predicate offenses and others do not”); [CITATION] ¶ 20 (agreeing with Wallace and Irrelevant that, for
purposes of AHC, “all that matters is that the defendant has a prior conviction for one of the
specified offenses”).
¶ 28 Defendant contends that we should apply the reasoning of [CITATION] ¶ 48, wherein the appellate court found that the State had not proven that the
defendant “had two qualifying adult convictions under the law in effect at the time of his armed
habitual criminal offense.” We decline to do so, as our supreme court recently entered a
supervisory order which directed the appellate court to vacate its judgment and to consider the
effect of Gray “on the issue of whether the State proved beyond a reasonable doubt that
defendant had the requisite predicate adult convictions necessary to sustain his armed habitual
criminal conviction and determine if a different result is warranted.” [CITATION] (supervisory order).
¶ 29 In any event, we disagree with the Dawson court’s suggestion that the “as defined”
language in section (a)(1) of the AHC statute (“a forcible felony as defined in Section 2-8 of the
Code”) means that the predicate offenses would have to be currently punishable in adult criminal
court. See [CITATION] ¶¶ 47-48. We instead view the proper analysis
as whether the predicate offense is a forcible felony as defined in section 2-8. E.g., [CITATION] ¶ 21 (stating that “[t]he present tense aspect of subsection (a)(1) is
concerned only with whether the offense of conviction remains defined as a forcible felony under
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the Criminal Code of 2012 as amended”). In this case, armed robbery has remained a forcible
felony at all relevant times.
¶ 30 We therefore find that defendant’s convictions for armed robberies committed in 2008
remain adult criminal convictions, not juvenile adjudications. See id. ¶ 20 (rejecting defendant’s
“attempts to avoid this reality by having us consider a hypothetical and counterfactual robbery,
as though it were committed in 2020 instead of 2013”). Even without defense counsel’s
stipulation, the trial court would have correctly allowed the admission of defendant’s two prior
armed robbery convictions as predicate convictions for his current offense of AHC. As the
admission of defendant’s prior convictions as predicate convictions for AHC was proper, we
conclude that defense counsel’s performance was not deficient, and defendant was not
prejudiced. See [CITATION], 2023 IL 128413, ¶ 50 (discussing the performance and prejudice prongs
of Strickland). See also [CITATION], 2022 IL 127680, ¶ 60 (noting that a “defendant’s
trial attorney cannot be considered ineffective for failing to raise or pursue what would have
been a meritless motion or objection”). For the foregoing reasons, defendant’s claim of
ineffective assistance must fail.
¶ 31 CONCLUSION
¶ 32 The judgment of the circuit court of Cook County is affirmed in its entirety.
¶ 33 Affirmed.
[CITATION]
No. 1-23-0252
Order filed June 17, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 125
)
QUINTIN ATKINS, ) Honorable
) Thomas J. Byrne,
Defendant-Appellant. ) Judge, presiding.
JUSTICE COGHLAN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for unlawful use of a weapon by a felon (UUWF) is
affirmed over his contentions that an armed robbery committed when he was 16
years old may not serve as a predicate felony for UUWF, that the trial court
misapprehended the relevant sentencing range, and that the trial court abused its
discretion by not departing from sentencing guidelines.
¶2 In a blind plea, defendant Quintin Atkins pled guilty to one count of unlawful use of a
weapon by a felon (UUWF) and two counts of aggravated unlawful use of a weapon (AUUW).
After merging the AUUW counts into the UUWF count, the trial court imposed a sentence of seven No. 1-23-0252
years in prison. On appeal, defendant contends that the trial court erred by relying on an offense
that occurred when he was 16 years old to “convict” him both of UUWF and of “Class 2” AUUW.
Defendant further contends that the trial court misapprehended the sentencing range when it
determined there was a seven-year presumptive minimum for UUWF. Finally, defendant contends
that the trial court abused its discretion when it failed to consider that mitigating circumstances
warranted imposing a sentence below seven years. For the reasons that follow, we affirm.
¶3 Defendant’s conviction arose from an incident that occurred on November 28, 2020, in
Chicago. According to the stipulated factual basis for defendant’s plea, on that date, officers
responded to a call of shots fired. When they arrived on the scene, an individual pointed at
defendant and said he had a firearm in his waistband. The officers approached defendant for a field
interview. Defendant indicated that he had a gun and that he “took the gun off of his friend, who
was just shot.” The officers recovered a loaded handgun from defendant’s waistband and placed
him into custody.
¶4 Following arrest, defendant was charged by indictment with one count each of armed
habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2020)) (count I), UUWF (720 ILCS 5/24-
1.1(a) (West 2020)) (count II), AUUW premised on not possessing a concealed carry license (720
ILCS 5/24-1.6(a)(1), (3)(A-5) (West 2020)) (count III), and AUUW premised on not possessing a
firearm owner’s identification card (720 ILCS 5/24-1.6(a)(1), (3)(C) (West 2020)) (count IV). Two
prior convictions—manufacture or delivery of a controlled substance in case No. [CITATION]
and armed robbery in case No. [CITATION]—were listed as the predicate offenses for AHC.
The armed robbery conviction in case No. [CITATION] was listed as the single predicate offense
No. 1-23-0252
for UUWF and, in both counts charging AUUW, as the basis for the State seeking to sentence
defendant as a Class 2 offender.
¶5 Defendant filed a motion to dismiss count I, arguing that, because he was 16 years old
when he committed armed robbery in 2002, that crime could not be used as a predicate offense for
AHC. Following argument on the motion, the trial court dismissed count I. Counsel asked for a
continuance so that defendant could consider an offer from the State.
[SEGMENT 10]
¶6 At the next court date, defendant’s attorney withdrew, and the trial court allowed defendant
to proceed pro se. Defendant filed a motion to dismiss the remaining counts of his indictment,
arguing that, because he was a juvenile in 2002, the State could not use his 2002 armed robbery as
a predicate offense for the charges of UUWF and AUUW. The trial court denied the motion,
reasoning that, although defendant was a juvenile in 2002, he was prosecuted as an adult.
¶7 After denying defendant’s motion, the trial court informed defendant that he needed to
answer the State’s motion for discovery so as to put the State on notice if he had any affirmative
defenses. Defendant responded, “Basically, on the elected matter, it is on camera. I am already
pleading guilty to it. The gun is off a dead man’s body. I had to defend myself.” Defendant and
the court then engaged in the following colloquy:
“THE COURT: Why are you setting this for trial if you are pleading guilty?
THE DEFENDANT: I am asking the State. I am ready to plead guilty on that charge
right now.
THE COURT: As to counts two, three and four on 21 CR 00125, how do you plead
to those counts?
THE DEFENDANT: I plead guilty, Judge.
No. 1-23-0252
THE COURT: All right. Did you execute a jury waiver by any chance?
THE DEFENDANT: No. I understand they are supposed to do a presentence
investigation report, Judge.
THE COURT: I will make sure we get a presentence investigation report done.
They are going to come and interview you. You understand that?
THE DEFENDANT: Yes.
Can I also offer this into evidence as adult criminal history that classifies me as a
Class III for this case, the elected matter?
THE COURT: We will do that at sentencing.
THE DEFENDANT: Okay. Thank you.”
¶8 The trial court read the charges aloud. Among other things, the court stated that the charge
of UUWF was “punishable by a penitentiary sentence from 3 to 14 years.” Defendant indicated
that he understood each charge and its possible penalties and was pleading guilty. However, he
also stated, “Judge, I am pleading guilty, but I don’t understand how [the State] is using a juvenile
armed robbery to enhance.” The trial court answered, “You can look at that. I am asking how do
you plead.” Defendant replied that he was pleading guilty. He also executed a jury waiver.
¶9 The trial court admonished defendant regarding the rights he was giving up by pleading
guilty. The parties stipulated to the factual basis for the plea, as set forth above. The stipulation
also included the following statement: “The defendant is a convicted felon *** under 02 CR
1998201.” The trial court found that defendant’s plea was made knowingly and voluntarily and
that a factual basis existed for the plea. The court entered a finding of guilty on counts II, III, and
IV, and ordered a presentence investigation (PSI) report.
No. 1-23-0252
¶ 10 The State asked the court to “briefly pass the case” so that it could discuss an offer with
defendant concerning a separate case. When the matter was recalled, the State reported that
defendant had rejected its offer on the separate case. The State further reported, “[Defendant] did
inquire about the court’s previous 402 offer on the case where he blind pled this morning.
[Defendant] and I discussed an offer that involved both cases. However, he has since rejected that
offer, so that offer is withdrawn.”
¶ 11 After further discussion of the separate case, defendant queried as to how presentence
custody credit would be applied. In the course of answering defendant’s questions, the trial court
told him that the State was offering, and “I would sentence you to,” five years in prison “on those
counts that you pled guilty to.” The court would impose a three-year sentence on the separate case,
for a total of eight years in prison. It repeated twice more that defendant would receive a five-year
sentence in the instant case. When the court asked defendant what he would like to do, he
answered, “Yeah, I will take it.”
¶ 12 The trial court proceeded to give defendant guilty plea admonishments for the separate
case. When the court asked him if he had signed a jury waiver, defendant responded by asking
about presentence custody credit and requesting PSI reports for both cases. The following
exchange ensued:
“THE DEFENDANT: Can you order a presentence investigation report?
THE COURT: If there is an agreement, you can waive it. If you want a presentence
investigation report, what I will do then is have a hearing after reviewing the presentence
investigation report. That is what we call a blind plea. Then it would be up to me what I
think a fair sentence would be.
No. 1-23-0252
(Brief pause.)
THE DEFENDANT: How do I know I am getting my time credit?
THE COURT: I am going to think about this for just a minute and I have to decide
if I am going to go along with this agreement. You didn’t sign the jury waiver.
I think what I am going to do is set it for trial, State.
[ASSISTANT STATE’S ATTORNEY]: Okay.
THE COURT: If you don’t mind.
[ASSISTANT STATE’S ATTORNEY]: That’s fine, Judge.
THE COURT: I am going to strike the plea, and I am going to hold the elected case
over for trial on January 31st.”
¶ 13 The State indicated that it was withdrawing its offer. The court informed defendant that,
after the PSI report was completed, the instant case would proceed to sentencing. The court stated,
“I am not going along with any agreement. What I will do is after your jury trial [on the separate
case], I will hear anything you have to say in mitigation on the case you pled guilty to, and if you
win your other case, we won’t address the sentencing. If you don’t win the case, then I will
sentence you on both.”
¶ 14 When the case was called on January 31, 2023, the trial court summarized that defendant
had entered a blind plea to counts II, III, and IV, and that there had been no agreement as to the
sentence. After the parties acknowledged receipt of the PSI report, the State moved to amend it to
include several prior convictions which had been unsealed. Other than one conviction for
possession of a stolen motor vehicle in 2006, defendant’s other prior convictions were all for
possession of a controlled substance and were committed between 2008 and 2013. The State also
No. 1-23-0252
noted the predicate armed robbery identified in the indictment, case No. 02 CR 1998201, stating
that it had “not ma[d]e the criminal history because that was sealed as well.” Defendant objected
to the State using the 2002 armed robbery “to enhance my Class 3 to a Class 2,” asserting that the
Juvenile Court Act of 2016 was retroactive. The trial court overruled the objection.
¶ 15 The PSI report also included defendant’s version of the offense. In short, defendant related
that he was at a block party when his friend was shot multiple times and killed. He ran to his friend
to see if he was alive and to try to help. The shooters were approaching from an alley, so defendant
took a gun off his friend’s body and pointed it toward them. He stated, “I took it to defend myself.
The police was [sic] coming. I put the gun on my hip and walked across the street. I never fled. I
told the police I took it to defend myself.”
¶ 16 The court asked defendant whether he had any evidence to present at the sentencing
hearing. Defendant addressed the stipulated factual basis for the plea, stating that “they” killed his
friend, and if he had not taken the gun off his friend’s body, “they” would have killed him, too.
The State indicated it was resting on the PSI report and stated, “Just for the record, there is a
presumptive minimum of seven years on Counts—on Count 2. We had previously offered the
defendant five.” The State also reported that defendant was “extendable” based on three prior
convictions from 2013 for Class 1 manufacture and delivery of a controlled substance. In
mitigation, defendant argued that the 2013 convictions “all ran concurrent.” He also argued that
he should be sentenced as a Class 3 felon, as he “never had a forcible that would enhance my ***
Class 3 UUW [sic] to a Class 2.”
¶ 17 Finally, when given the opportunity to make a statement in allocution, defendant stated he
had no choice but to take the gun, as “they would have loved to kill two people” and “[i]t was
No. 1-23-0252
either that or die.” The trial court stated that, given the procedural posture of the case, it could not
decide whether self defense was a viable defense. However, the court stated it would take self
defense, “even if it’s a mistaken belief in self defense,” into account when imposing sentence.
[SEGMENT 11]
¶ 18 The court sentenced defendant to seven years in prison on count II and merged counts III
and IV. The court explained as follows:
“I am going to impose the presumptive minimum in this case after, having
considered the presentence investigation report, defendant’s statement in allocution, which
I’ve already mentioned, the arguments from both sides, the statutory and non statutory
factors in aggravation and mitigation, whether or not are specifically mentioned by the
State or by [defendant], I’m considering the defendant’s history and the circumstances of
the offense, and having due regard for the seriousness of the offense in which the defendant
has pled guilty, sentence will be 7 years in the Illinois Department of Corrections.”
¶ 19 Defendant asked for clarification regarding the class of the offenses charged in the
indictment. The trial court answered that it had sentenced him as a Class 2 offender. Defendant
replied, “Okay. I would like to put in a motion to object and appeal.” The court responded that
they were “not quite finished yet,” and then admonished defendant regarding his right to appeal.
Defendant thereafter submitted a written motion to reconsider sentence, arguing orally for Class 3
sentencing and for the court to impose the five-year sentence the State had “agreed to” earlier. The
trial court denied the motion, stating that it was appropriate to sentence defendant as a Class 2
felon. Defendant filed a notice of appeal.
¶ 20 On appeal, defendant contends that the trial court erred by relying on an offense that
occurred when he was 16 years old to “convict” him both of UUWF and of Class 2 AUUW; that
No. 1-23-0252
the trial court misapprehended the sentencing range when it determined there was a seven-year
presumptive minimum for UUWF; and that the trial court abused its discretion when it failed to
consider that mitigating circumstances warranted imposing a sentence below seven years.
¶ 21 As an initial matter, we note that Illinois Supreme Court Rule 604(d) (eff. Apr. 15, 2024)
provides that no appeal from a judgment entered upon a guilty plea shall be taken unless the
defendant, within 30 days of the date of sentencing, “files in the trial court a motion to reconsider
the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion
to withdraw the plea of guilty and vacate the judgment.” In general, the filing of a Rule 604(d)
motion is a “condition precedent to an appeal from a judgment on a plea of guilty,” and the failure
to file a timely Rule 604(d) motion precludes this court from considering the appeal on its merits.
[CITATION]
¶ 22 Here, defendant is not only raising sentencing issues. He is also challenging his plea. Yet,
while he filed a motion to reconsider sentence, he did not file a motion to withdraw his guilty plea.
Nevertheless, because defendant entered into a blind plea in this case, rather than a negotiated plea
(see [CITATION] (in an “open” or “blind” plea, the defendant pleads guilty
without receiving any promises from the State in return)), we may consider the merits of his
non-sentencing arguments. See [CITATION] This is
because the object of the contractual analysis that applies in appeals involving guilty pleas is to
return the parties to the status quo that existed prior to the entry of the plea agreement and, where,
as here, a defendant enters a blind guilty plea, returning to the status quo does not require that a
defendant relinquish his guilty plea. [CITATION]
No. 1-23-0252
¶ 23 Next, with regard to procedural default, we address the State’s assertion that defendant has
waived all claims of error because he pled guilty. In making this argument, the State relies on
[CITATION]. In [CITATION], the 17-year-old defendant entered a negotiated guilty
plea of 50 years in prison for a single count of murder. Id. ¶¶ 1, 4. He subsequently challenged a
mandatory sentencing scheme that was never actually applied to him due to the plea agreement.
Id. ¶¶ 7, 17, 18.
¶ 24 The [CITATION] court held that, “[i]f the statutory sentencing scheme had actually been applied
in this case to set [the defendant’s] life sentence, [his] argument would have presented a claim that
we could have reviewed on its legal merits.” Id. ¶ 18. The court further held that, by entering a
plea agreement, the defendant foreclosed any claim of error, as a voluntary guilty plea waives all
non-jurisdictional errors or irregularities, including constitutional ones. Id. ¶ 20. The court
reasoned that plea agreements are contracts “and principles of waiver apply equally to them.” Id.
¶ 21. It further explained that entering into a contract is, generally, a bet on the future, and that
pleading guilty “ ‘permits a defendant to gain a present benefit in return for the risk that he may
have to [forego] future favorable legal developments.’ ” (Alteration in original.) Id. (quoting
[CITATION]). Accordingly, the court concluded that the
defendant’s knowing and voluntary guilty plea had waived any constitutional challenge based on
subsequent changes in the law. Id. ¶ 26.
¶ 25 We find [CITATION] distinguishable for two reasons. First, unlike in [CITATION], defendant is
challenging a sentence that was actually imposed rather than a sentence that “was never actually
applied to him due to the plea agreement.” Id. ¶¶ 7, 17, 18. See also [CITATION]. Second, in [CITATION], the defendant’s postconviction claim hinged on a case that
- 10 -
===== End of Part of a Court Ruling ===== No. 1-23-0252
was decided years after he pled guilty. Here, defendant did not plead guilty in reliance on “future
favorable legal developments” and is not making a claim based on changes in the law that occurred
subsequent to his plea. Rather, from the time the trial court allowed him to proceed pro se,
defendant has claimed that, because he was a juvenile in 2002, the State could not use his 2002
armed robbery as a predicate offense for the charge of UUWF and to enhance his sentencing class
for AUUW. See [CITATION].
¶ 26 In the trial court, defendant filed a written motion to dismiss the charges of UUWF and
AUUW, persisted in his objection throughout his plea and at sentencing, and moved for
reconsideration of his sentence on this basis. This court has held that “a guilty plea does not bar a
claim on appeal ‘where on the face of the record the court had no power to *** impose the
sentence.’ ” [CITATION] (quoting [CITATION]). “In other words, if the claim does not contradict the terms of the
indictment or plea agreement, we can consider it.” Id. Here, defendant is not challenging the factual
basis for his plea. Instead, he is challenging the UUWF statute’s application to his admitted
conduct and the State’s power to punish him for AUUW as a Class 2 offender. Under these
circumstances, defendant’s guilty plea did not waive his arguments on appeal. See id.; [CITATION].
¶ 27 As a final matter with regard to procedural default, we are mindful that our supreme court
has recently held that, where a defendant stipulates that requisite prior qualifying convictions exist
in his criminal record to sustain a charge, he is precluded from attacking or otherwise contradicting
those stipulated facts on appeal. [CITATION]. However, the holding
of [CITATION] does not apply in the instant case, in which defendant stipulated to the existence of his
- 11 - No. 1-23-0252
2002 armed robbery, but did not stipulate that it was a “qualifying” offense. See id. ¶¶ 9, 27 (the
defendant’s stipulation that he “ha[d] two prior qualifying felony convictions for the purposes of
sustaining the charge of armed habitual criminal” established that he had been convicted of two
prior felonies “and that those felonies were qualifying felonies” (emphasis in original)).
¶ 28 Having concluded that defendant is not procedurally precluded from raising his claims in
this court, we turn to the merits of his arguments. First, defendant argues that the trial court erred
by relying on his 2002 armed robbery to “convict” him both of UUWF and of “Class 2” AUUW.
The trial court sentenced defendant to seven years in prison on count II, the UUWF charge, and
merged counts III and IV into count II. Therefore, since the sentence was only imposed on count
II and a conviction requires a finding of guilt and a sentence, defendant stands convicted solely of
UUWF. See 730 ILCS 5/5-1-12 (West 2022); [CITATION], ¶ 71 (“there
is no final judgment in a criminal case unless a sentence has been imposed”). It follows that we
have jurisdiction to consider the merits of defendant’s challenge to the UUWF conviction. See
[CITATION], ¶ 71 (appellate court jurisdiction extends to final judgments).
¶ 29 Regarding defendant’s AUUW claim, defendant was found guilty of AUUW, but not
[SEGMENT 12]
sentenced on that count. See 730 ILCS 5/5-1-12 (West 2022) (a conviction requires a finding of
guilt and a sentence); [CITATION], ¶ 71 (“there is no final judgment in a criminal
case unless a sentence has been imposed”). As our supreme court explained in [CITATION], the
appellate court has no jurisdiction to determine the validity of “unsentenced convictions,” as they
do not constitute final judgments. [CITATION], ¶¶ 71, 75. While we do have
jurisdiction to remand for imposition of sentences on unsentenced guilty findings, that is only in
situations where the trial court incorrectly merged those guilty findings into other offenses. Id. ¶¶
- 12 - No. 1-23-0252
74, 75. Here, we are not presented with such a factual scenario. As such, in accordance with
[CITATION], we find that we lack jurisdiction to review the merits of the trial court’s guilty findings
on AUUW counts III and IV. See [CITATION], ¶ 33-37 (finding
a lack of appellate jurisdiction to consider the merits of a guilty finding on a properly merged count
where no sentence was imposed).
¶ 30 Turning to the merits of defendant’s challenge to the UUWF conviction, whether
defendant’s 2002 juvenile offense may serve as a predicate offense for UUWF is a question of
statutory interpretation that we review de novo. [CITATION], ¶ 13. Section
24-1.11 of the Criminal Code of 2012 provides that a person commits UUWF if, as relevant here,
he possesses on or about his person any firearm and he “has been convicted of a felony under the
laws of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2020). Here, the predicate
felony conviction for UUWF was defendant’s 2002 armed robbery, which he committed when he
was 16 years old.
¶ 31 In 2002, armed robbery committed with a firearm by a minor who was at least 15 years old
was excluded from juvenile court jurisdiction and automatically transferred to adult criminal court.
See 705 ILCS 405/5-130(1)(a) (West 2002). However, in 2014, the legislature expanded juvenile
delinquency jurisdiction to 17-year-olds (see Pub. Act 98-61, § 5 (eff. Jan. 1, 2014) (amending 705
ILCS 405/5-120)) and, in 2016, amended section 5-130(1)(a) of the Juvenile Court Act of 1987
(Act), to, among other things, eliminate armed robbery from the list of automatic transfer offenses
(see Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a))). Defendant argues
that, due to amendment of the Act, if his armed robbery case had been charged in 2020, it would
- 13 - No. 1-23-0252
have resulted in a juvenile adjudication rather than an adult criminal conviction. He therefore
asserts that his 2002 armed robbery conviction cannot serve as a predicate for UUWF.
¶ 32 As we observed in [CITATION], the best indication
of legislative intent is the language of the statute itself, given its plain and ordinary meaning. Id.
(citing [CITATION]). Where statutory language is clear and
unambiguous, this court will apply the statute without resort to further aids of statutory
construction, and we will not read into the statute exceptions, conditions, or limitations that are
not expressed by the legislature. Id. (citing [CITATION]).
¶ 33 As noted above, section 24-1.11 provides that a person is guilty of UUWF if he possesses
on or about his person any firearm and he “has been convicted of a felony under the laws of this
State or any other jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2020). Our supreme court has found
that “the proscription under section 24-1.1(a) is expressed in the past tense, thus applying to any
person who ‘has been convicted’ of a felony.” [CITATION], overruled on other grounds by [CITATION]. In [CITATION], we found that a similar
phrase, “having been convicted,” was the grammatical equivalent of saying “if he/she was
convicted,” and that the statute at issue was clear and unambiguous. [CITATION]. In keeping with [CITATION] and [CITATION], we conclude that the phrase “has been
convicted” is clear and unambiguous and may be applied without looking to extrinsic aids of
statutory construction. See id.
¶ 34 Here, it is not disputed that, in 2002, defendant committed the predicate offense of armed
robbery at age 16, or that the guilty finding for that offense resulted in a conviction in adult criminal
court, as opposed to juvenile court. Over a decade later, the legislature amended the juvenile statute
- 14 - No. 1-23-0252
so that an armed robbery committed at age 16 would result in a juvenile adjudication. See Pub.
Act 98-61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120)); Pub. Act 99-258 (eff. Jan. 1,
2016) (amending 705 ILCS 405/5-130(1)(a)). However, these amendments are not retroactive. See
[CITATION]. As such,
“no rule of construction authorizes this court to declare that the legislature did not mean what the
plain language of the statute imports, nor may we rewrite a statute to add provisions or limitations
the legislature did not include.” [CITATION]. Under the plain language
of section 24-1.1, defendant had been convicted of armed robbery in 2002, and this was sufficient
to serve as a predicate offense for UUWF. See id. (citing [CITATION]). Accordingly,
defendant’s arguments for reversal of his UUWF conviction fail.
¶ 35 Defendant’s next contention is that the trial court misapprehended the applicable
sentencing range when it determined there was a seven-year presumptive minimum for UUWF.
He argues that the trial court could not use his 2002 armed robbery to impose the increased
minimum because that charge would not result in an adult conviction today. He also asserts that
the trial court should not have imposed a seven-year sentence because it had earlier advised him
that UUWF was punishable by a penitentiary sentence of 3 to 14 years and “[i]ncreasing the
minimum without ever admonishing [defendant], who was appearing pro se, of the possibility is
fundamentally unfair.” As relief, defendant requests that this court reduce his sentence to the five-
year term “previously deemed appropriate by the State and court,” or, in the alternative, remand
for resentencing under the 3-to-14 year sentencing range.
- 15 - No. 1-23-0252
¶ 36 Defendant acknowledges that “he did not argue that the presumptive minimum could not
be imposed” in the trial court. Forfeiture aside, defendant urges us to consider this claim as a matter
of second prong plain error.
¶ 37 The plain error doctrine is a narrow and limited exception to forfeiture. [CITATION], 237 Ill. 2d 539, 545 (2010). To obtain relief under this doctrine in the sentencing context, a
defendant must show either that (1) the evidence at the sentencing hearing was closely balanced,
or (2) the error was so egregious as to deny the defendant a fair sentencing hearing. Id. However,
before addressing either prong, a defendant must first show that a clear or obvious error occurred.
Id. If he fails to meet his burden, the procedural default will be honored. Id. Here, we find no clear
or obvious error.
¶ 38 Defendant claims that the trial court erred by finding that his 2002 armed robbery
constitutes a qualifying predicate offense so as to trigger elevated sentencing for UUWF. Such
elevated sentencing is provided for in section 5-4.5-110 of the Unified Code of Corrections (Code)
(730 ILCS 5/5-4.5-110 (West 2022)), which is titled “Sentencing Guidelines for Individuals with
Prior Felony Firearm-Related or Other Specified Convictions,” and which was enacted as part of
the Safe Neighborhoods Reform Act (Pub. Act 100-3 (eff. Jan. 1, 2018)). Defendant’s argument
calls upon us to interpret that statutory section. See [CITATION], 2021 IL App (1st) 192154,
¶ 12. The interpretation of a statute is a question of law, which we review de novo. Id. ¶ 13.
¶ 39 The relevant provision of the sentencing guideline statute at issue appears in subsection
(c)(1) and states as follows:
“When a person is convicted of unlawful use or possession of a weapon by a felon,
when the weapon is a firearm, and that person has been previously convicted of a qualifying
[SEGMENT 13]
- 16 - No. 1-23-0252
predicate offense, the person shall be sentenced to a term of imprisonment within the
sentencing range of not less than 7 years and not more than 14 years, unless the court finds
that a departure from the sentencing guidelines under this paragraph is warranted under
subsection (d) of this section.” [CITATION].
Among the enumerated qualifying predicate offenses is “armed robbery under Section 18-2 or
similar offense under the Criminal Code of 1961.” [CITATION].
¶ 40 We have already determined that defendant’s 2002 armed robbery may serve as a predicate
offense for UUWF. Consistent with that finding, we conclude that the 2002 armed robbery may
serve as a qualifying predicate offense for purposes of section 5-4.5-110(c)(1). As such, the trial
court did not err or misapprehend the applicable sentencing range, as the minimum prison term
sentence was indeed seven years. [CITATION]. Because there was no
error, there was no plain error, and defendant’s contention remains forfeited.
¶ 41 Defendant’s final contention on appeal is that the trial court abused its discretion when it
failed to consider its ability to depart from the presumptive minimum based on compelling
mitigating circumstances that warranted a sentence below seven years. Specifically, he argues that
a shorter sentence was warranted due to his age at the time of the predicate offense, his history of
abuse, the length of time between his last criminal conviction in 2013 and this case, his non-violent
adult criminal history, his family responsibilities, and his consistent employment up until his arrest.
He further argues that the State implicitly acknowledged the mitigating nature of his conduct by
proposing a five-year sentence earlier in the proceedings. As relief, defendant seeks modification
of his sentence to five years, as “previously deemed appropriate by the court and the State.”
- 17 - No. 1-23-0252
¶ 42 A trial court has discretion to depart from the presumptive minimum set forth in the
sentencing guidelines if it finds substantial and compelling justification that the sentence would be
unduly harsh and that a sentence otherwise authorized by law would be consistent with public
safety and not deprecate the seriousness of the offense. 730 ILCS 5/5-4.5-110(d)(1) (West 2022);
[CITATION]; Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023)
(nonprecedential orders entered on or after January 1, 2021, may be cited for persuasive purposes).
The statute contains a list of factors the court is to consider in order to determine whether a
departure from sentencing guidelines might be warranted, such as the defendant’s age at the time
of the current or the predicate offense, the circumstances of the current and the qualifying predicate
offense, the time that has elapsed since the qualifying predicate offense, the defendant’s criminal
history, and whether departure from the sentencing guidelines is in the interest of the defendant’s
rehabilitation. 730 ILCS 5/5-4.5-110(d)(2)(A)-(H) (West 2022).
¶ 43 At sentencing in the instant case, the trial court was in possession of the PSI report, which,
as amended, included information on each of the subjects that defendant now claims would have
warranted a downward departure from the sentencing guidelines. Moreover, the trial court
specifically stated it was imposing the presumptive minimum sentence after having considered the
PSI report, defendant’s statement in allocution, the arguments from both sides, the statutory and
non-statutory factors in aggravation and mitigation, defendant’s history, and the circumstances and
the history of the offense. A trial court is presumed to know the law, and, on review, we presume
that the trial court followed all applicable laws unless the record indicates otherwise. [CITATION]. “We must presume the trial court knew it could depart
from the sentencing guidelines if it wished to do so.” [CITATION]
- 18 - No. 1-23-0252
U, ¶ 52; Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023) (nonprecedential orders entered on or after January
1, 2021, may be cited for persuasive purposes).
¶ 44 A sentencing determination will not be disturbed absent an abuse of discretion. [CITATION]. Sentences that fall within the permissible statutory range
constitute an abuse of discretion only where they are “greatly at variance with the spirit and
purpose of the law, or manifestly disproportionate to the nature of the offense.” Id. at 210. The
presumptive minimum sentence imposed in this case is not manifestly disproportionate to the
nature of the offense or at great variance with the spirit and purpose of the law.
¶ 45 For the reasons explained above, we affirm the judgment of the circuit court.
¶ 46 Affirmed.
- 19 - I'm sorry, but there seems to be an issue. The part of the court ruling you mentioned is not included in your message. Could you please provide the text that needs processing so I can assist you?
2024 IL App (1st) 220991-U
No. 1-22-0991
Filed April 25, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 CR 9493
)
SHERMAN HAWKINS, ) Honorable
) James B. Linn
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for armed habitual criminal affirmed when he stipulated to
the requisite predicate convictions.
¶2 Sherman Hawkins was charged by indictment with being an armed habitual criminal
(AHC), two counts of aggravated unlawful use of a weapon (AUUW), and one count of unlawful
use of a weapon by a felon (UUWF). Each count was premised on the allegation that Hawkins
possessed a firearm on August 29, 2020. The AHC count alleged that Hawkins had previously been
convicted of UUWF, committed in 2016, and a 2013 robbery. No. 1-22-0991
¶3 Hawkins filed a motion to dismiss the AHC count before trial. He contended that the 2013
robbery could not serve as one of the two requisite predicate convictions for AHC and therefore
the AHC count failed to state an offense. Hawkins relied on a 2014 amendment (Amendment) to
the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2020)), which
raised the juvenile court’s exclusive jurisdiction from minors under age 17 to those under age 18.
See Public Act 98-61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120). Hawkins was 17
years old at the time of the 2013 robbery. He reasoned that, as a result of the Amendment, the
robbery charge did not qualify as a predicate conviction because the same robbery charge for a
17-year-old in 2020 would have resulted in a juvenile adjudication of delinquency, rather than an
adult criminal conviction. To support his argument, Hawkins cited, inter alia, [CITATION], where the court employed similar reasoning to conclude that a defendant’s
conviction for delivery of a controlled substance committed at age 17 in 2002 could not serve as a
predicate offense for an AHC offense committed in 2016.
¶4 Initially, the circuit court agreed and granted Hawkins’s motion to dismiss the AHC count.
On reconsideration, however, the court denied Hawkins’s motion, reasoning that the Amendment
did not apply retroactively to offenses committed before the Amendment’s effective date.
¶5 The case proceeded to a jury trial. Chicago Police Officer Sean Driscoll testified that he
was monitoring police observation device (POD) cameras in the 15th Police District in the early
morning hours of August 29, 2020. Around 1:40 a.m., Officer Driscoll noticed a group of 10 to 15
people gathered on the street on the 4900 block of West Hubbard Street. One individual—an
African American male wearing a baseball hat turned to the side, a white tank top, and black
jogging pants—caught Officer Driscoll’s attention. Officer Driscoll observed this individual walk
to a parked car and return toward the group. As he walked, the individual kept his right hand inside
No. 1-22-0991
his waistband and appeared to be holding an object in that hand. Officer Driscoll suspected the
individual was concealing a handgun and relayed his observations to other officers.
[SEGMENT 14]
¶6 Officer Jonathan Diaz testified that he received a description of the individual that Officer
Driscoll suspected of possessing a handgun and a report of the location where that individual was
observed. Along with other officers, Officer Diaz proceeded by car to the 4900 block of West
Hubbard Street and observed Hawkins, whom he identified in court, standing on the sidewalk.
Officer Diaz believed Hawkins matched the description provided by Officer Driscoll. Upon Officer
Diaz’s arrival, Hawkins began walking away. Within moments, Hawkins was apprehended by
Officer Tyler, who was wearing a body worn camera (BWC). Officer Diaz observed Hawkins
holding a firearm in his hand. As Officer Tyler approached him, Hawkins threw the handgun to the
ground, where Officer Diaz immediately retrieved it. Officer Diaz identified Hawkins and the
handgun in still photos and video from Officer Tyler’s BWC. He also identified the handgun in
court along with the extended magazine, which was in the handgun when it was recovered,
containing 10 bullets.
¶7 The parties stipulated to the handgun’s chain of custody and that it was an operable .45
caliber semi-automatic pistol. They also stipulated that Hawkins “had been previously convicted
of two qualifying felony offenses under the laws of Illinois.”
¶8 After the jury was excused, Hawkins’s attorney informed the court that the stipulation to
qualifying offenses was based on the court’s pretrial ruling denying the motion to dismiss the AHC
count. The court then remarked as follows:
“We had a lengthy pretrial motion and hearing. Defense [counsel] is absolutely objecting
to the admissibility of a conviction that Mr. Hawkins had when he was 17 years old. He
-3 - No. 1-22-0991
was tried as an adult for that, albeit under the law as it is today, he would have gone to
Juvenile Court *** They objected to that.
But in light of the fact that we are on trial now and the Defense wanted to avail
itself of a remedy that is available in these situations to stipulate to the priors so the jury
doesn’t know exactly what the priors are, because that may be prejudicial *** That may
sound troubling to the jury *** They are still objecting.
The objection is timely made. Made. Preserved. Stipulation to the prior in no way
indicates that they are acknowledging the Court’s ruling. They are acknowledging the fact
that that conviction is out there, but they are not stipulating to its admissibility. They are
still arguing that it’s inadmissible.”
¶9 Hawkins elected not to testify and presented no evidence. Following closing arguments,
the jury returned guilty verdicts on all three counts. The court later sentenced him to a prison term
of nine years. Hawkins filed a timely notice of appeal.
¶ 10 On appeal, Hawkins argues that the State failed to prove he had two qualifying prior
convictions to sustain a conviction for AHC. He contends, as he did before the trial court, that his
conviction for a robbery committed at age 17 in 2013 did not qualify as a predicate offense due to
the subsequent Amendment. Hawkins does not challenge whether the State proved that he
possessed a firearm.
¶ 11 Under the Criminal Code of 2012 (Code):
“A person commits the offense of being an armed habitual criminal if he or she receives,
sells, possesses, or transfers any firearm after having been convicted a total of 2 or more
times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
-4 - No. 1-22-0991
(2) unlawful use of a weapon by a felon ***; or
(3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that
is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7(a) (West 2020).
Robbery is among the enumerated offenses defined as a forcible felony. 720 ILCS 5/2-8 (West
).
¶ 12 Hawkins relies primarily on the majority decision in [CITATION], which followed the prior appellate decision in Gray to conclude that a defendant’s AHC
conviction could not stand when the predicate offenses were robberies committed at age 17, before
the Amendment. Hawkins contends that his case presents an identical issue and should be resolved
likewise, reducing his conviction to the lesser included offense of UUWF and remanding for
resentencing. Id. ¶ 67.
¶ 13 However, [CITATION] does not control the outcome of this case. Our supreme court recently
reversed the appellate decision in Gray, albeit on different grounds, but the supreme court’s
decision nonetheless controls the outcome here. [CITATION]. The supreme
court affirmed Gray’s AHC conviction on the grounds that he stipulated that he had “ ‘two prior
qualifying felony convictions for the purposes of sustaining the charge of armed habitual
criminal.’ ” Id. ¶ 27. The court found the stipulation determinative of whether the State had proven
the requisite prior convictions to sustain an AHC conviction. Id. ¶ 26. The stipulation was
dispositive because “[a]fter stipulating to facts, a defendant is precluded from attacking or
otherwise contradicting those stipulated facts.” Id. (citing [CITATION]). In other words, a defendant cannot stipulate that they were previously convicted of a
predicate offense and later argue that the State failed to prove that predicate offense.
-5 - No. 1-22-0991
¶ 14 Here, the State asserts that Hawkins’s stipulation has the same effect. We agree. The
supreme court’s decision in [CITATION] requires that we find the State proved Hawkins guilty of AHC.
Hawkins objected to the admissibility of his 2013 robbery conviction, but the name of the offense
or any specific facts or circumstances about it were never admitted into evidence. Rather, only the
fact that Hawkins “had been previously convicted of two qualifying felony offenses under the laws
of Illinois” was admitted. Once that fact was stipulated, the names, nature, and other facts about
the convictions were no longer at issue. By so stipulating, the State satisfied its burden to prove
Hawkins had two predicate convictions for AHC. While the trial court noted Hawkins’s objection
and stated that he had preserved the issue, [CITATION] holds that the stipulation precludes any further
challenge to the fact stipulated.
¶ 15 Although the stipulation is dispositive here, we observe that the rule can be harsh. A
defendant situated as Hawkins faces a Sophie’s choice. 2 The defendant must either (1) stipulate to
qualifying convictions, preventing the jury from hearing evidence about prior crimes, but forfeit
his challenge or (2) maintain that his prior conviction did not qualify, preserving the issue, but
allowing the jury to hear evidence that, as the trial court noted, may be prejudicial. With that
predicament in mind, we explain that we would affirm Hawkins’s conviction even if he had not
stipulated to prior qualifying convictions.
¶ 16 Whether convictions for offenses committed by 17-year-old defendants prior to the
Amendment qualify as predicate convictions for AHC is not a settled issue in Illinois law. See
Hawkins preserved the issue regarding whether the trial court erred in denying his pretrial motion
to dismiss the AHC count. The claim was included in his motion for new trial, but Hawkins does not raise
it on appeal.
Sophie’s choice is defined as “an extremely difficult decision a person has to make. It describes a
situation where no outcome is preferable over the other. This can be either because both outcomes are
equally desirable or both are equally undesirable.”
Dictionary.com, https://www.dictionary.com/e/slang/sophies-choice/ (last visited April 22, 2024).
-6 - No. 1-22-0991
[CITATION] (finding such a conviction does qualify); [CITATION] (same); 3 [CITATION] (finding the
opposite). Resolution requires statutory interpretation.
¶ 17 When interpreting statutes, our primary objective is to ascertain and give effect to the
legislature’s intent. [CITATION], ¶ 14. The best indicator of legislative
intent is the plain and ordinary meaning of the statutory language. Id. When a statute is clear and
unambiguous, we will apply it as written without resort to aids of statutory construction. Id. “We
will not depart from the plain statutory language by reading into it exceptions, limitations, or
conditions that conflict with the expressed intent of the legislature.” [CITATION], ¶ 56. “No rule of construction authorizes
this court to declare that the legislature did not mean what the plain language of the statute imports,
nor may we rewrite a statute to add provisions or limitations the legislature did not include.” [CITATION], ¶ 28.
¶ 18 In relevant part, the AHC statute requires that the offense occur “after [the defendant]
having been convicted a total of 2 or more times of any” of the offenses enumerated in subdivisions
(a)(1) through (a)(3). 720 ILCS 5/24-1.7(a) (West 2020). “ ‘[H]aving been convicted’ is a perfect
[SEGMENT 15]
passive participle construction and is used to emphasize that a first action (here, a conviction) has
been completed before the second action begins (being found an armed habitual criminal).”
[CITATION], ¶ 33. The plain, ordinary, and unambiguous meaning of
“having been convicted,” as used in the AHC statute, simply leads to an inquiry of whether the
defendant has at least two prior convictions for offenses included in the listed categories.
[CITATION] was decided after completion of briefing in this case. We granted the State’s motion to
cite [CITATION] as well as Hawkins’s motion to cite [CITATION], which
followed [CITATION].
-7 - No. 1-22-0991
“Grammatically, it is the equivalent of saying, ‘if he/she was convicted.’ ” (Emphasis in original.)
Id. Thus, if a defendant was convicted of a forcible felony, as Hawkins was, before committing the
act giving rise to the AHC charge, that conviction qualifies. The statute expresses no exception,
limitation, or condition such that some forcible felony convictions qualify as predicate offenses
and others do not.
¶ 19 Hawkins argues that the words “of this Code” following “a forcible felony as defined in
Section 2-8” in subdivision (a)(1) signify a present tense, referring to the time of the conduct
underlying the AHC charge. He further contends that “this Code” in 2020 would include the 2014
amendment to the Juvenile Court Act, which would give the Juvenile Court exclusive jurisdiction
over a 17-year-old charged with robbery. In other words, had Hawkins committed the robbery in
, he would have received a juvenile adjudication, not an adult criminal conviction.
¶ 20 We cannot adopt Hawkins’s reasoning. The Amendment expressly provided that “[t]he
changes made to this Section by [the 2014 amendment] apply to violations or attempted violations
committed on or after the effective date of this amendatory Act [(January 1, 2014)].” [CITATION]
Since Hawkins committed robbery in 2013, the Amendment has no effect on the legal proceedings that followed from it. The “Code” referred to in subsection (a)(1) of the
AHC statute is the Criminal Code of 2012. [CITATION] Robbery is a forcible
felony under that Code. [CITATION] Thus, the robbery Hawkins committed in
remains an adult criminal conviction, not a juvenile adjudication. Hawkins attempts to avoid
this reality by having us consider a hypothetical and counterfactual robbery, as though it were
committed in 2020 instead of 2013. But Hawkins’s robbery conviction is not hypothetical. He
committed it in 2013, not 2020. And he was 24 in 2020, not a juvenile. Hawkins’s argument
-8 - No. 1-22-0991
attempts to apply the Amendment retroactively in spite of the legislature’s clearly expressed intent
that the amendment applies only prospectively.
¶ 21 The present tense aspect of subsection (a)(1) is concerned only with whether the offense of
conviction remains defined as a forcible felony under the Criminal Code of 2012 as amended. To
exclude an otherwise qualifying prior conviction based on the defendant’s age at the time of
commission reads an exception, limitation, and condition into the AHC statute that the legislature
did not express in either the AHC statute or the Amendment. Thus, we agree that “all that matters
is that defendant had a conviction, and that conviction was for an offense described in subsection
(a)(1) at the time defendant committed the underlying conduct which resulted in the armed habitual
criminal charge.” [CITATION], ¶ 36.
¶ 22 A comparison with the general recidivism statute is also instructive. For a defendant to be
found a habitual criminal or to be subject to enhanced class X sentencing based on prior
convictions, the legislature has expressly provided that “the first offense [must have been]
committed when the person was 21 years of age or older.” See 730 ILCS 5/5-4.5-95(a)(4)(E),
(b)(4) (West 2020). Thus, this language clearly distinguishes between convictions based on the
defendant’s age at the time of the offense’s commission. Those committed after the defendant
reached a certain age implicate the sentencing enhancements provided in the statute and
convictions committed before that age do not. Moreover, the statute demonstrates that the
legislature knows how to express whether the defendant’s age at the time of a prior conviction
affects the status of that conviction in future criminal proceedings. No similar language appears in
the AHC statute. When the legislature uses certain language in one place and not in another, we
presume the legislature intended different meanings and results. [CITATION], ¶ 23. Therefore, we conclude that the legislature
-9 - No. 1-22-0991
did not intend to make the age at which a defendant committed an offense a qualifying factor for
predicate convictions under the AHC statute.
¶ 23 For these reasons, we find that Hawkins was properly convicted of AHC and affirm the
judgment of the circuit court.
¶ 24 Affirmed.
-10 -
2024 IL App (1st) 221951-U
Fourth Division
Filed March 28, 2024
No. 1-22-1951
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
THE PEOPLE OF THE STATE OF ILLINOIS, Appeal from the
)
Plaintiff-Appellee, ) Circuit Court of Cook County
)
v. No. 21 CR 01407
)
CORTEZ HERRION, ) The Honorable Vincent M. Gaughan,
) Judge, presiding.
Defendant-Appellant.
)
JUSTICE OCASIO delivered the judgment of the court.
Presiding Justice Rochford and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: (1) The defendant’s prior conviction for residential burglary was properly alleged
as a predicate for charging him with being an armed habitual criminal. (2) The
record was inadequate to resolve the claim that defense counsel was ineffective for
failing to move to suppress the gun.
¶2 Following a jury trial, defendant Cortez Herrion was found guilty of one count of armed
habitual criminal and sentenced to nine years in prison. On appeal, he argues that his prior
conviction for residential burglary, which he committed when he was 17 years old, cannot serve
as a predicate for armed habitual criminal because an intervening expansion in juvenile-court
jurisdiction means that it would be treated today as a delinquency matter, not an adult criminal
prosecution. He also argues that defense counsel’s failure to file a motion to suppress the gun he
was found guilty of possessing amounted to ineffective assistance. We reject his first argument and
decline to reach his second argument. Accordingly, we affirm. No. 1-22-1951
¶3 I. BACKGROUND
¶4 In 2021, the State filed an indictment charging Herrion with being an armed habitual
criminal. 1 See 720 ILCS 5/24-1.7(a) (West 2020). The indictment alleged that Herrion had two
prior qualifying convictions, including a conviction for residential burglary that Herrion
committed when he was 17 years old. Before trial, Herrion did not move to dismiss the indictment
or suppress evidence of the gun he was charged with possessing.
¶5 The evidence at Herrion’s jury trial established that, on December 26, 2020, two Chicago
police officers were on patrol in the Englewood neighborhood in an unmarked vehicle when they
encountered a Nissan SUV that was missing a front license plate, bore an expired back license
plate, and had one taillight that was out. They pulled the Nissan over, and both officers got out and
approached it. Officer Kenneth Brink went to the driver’s door, and Detective Jeffrey Lawson went
to the passenger’s door. Herrion was sitting in the front passenger’s seat wearing a jacket and a
shoulder bag. Both officers smelled the odor of cannabis coming from the Nissan. When the driver
was unable to produce a valid license, Brink ordered him to get out of the car, and he complied.
Herrion also got out of the car when ordered to by Lawson. Once Herrion was out of the car,
Lawson did a brief pat-down search and felt what he thought might be a gun inside the shoulder
bag. When Lawson went to retrieve his handcuffs, Herrion ran, and a short chase ensued. During
the chase, Herrion let the shoulder bag fall to the ground, and it was retrieved by an officer who
had originally come to the scene to provide back-up for the traffic stop. After Herrion was
apprehended, Brink opened the bag and found, among other things, a loaded handgun, a small
amount of cannabis, and Herrion’s identification card, credit card, and social security card.
¶6 Lawson testified at trial. He explained that his role during the stop was to be the “guard
[SEGMENT 16]
officer” by keeping watch over Herrion while Brink interacted with the driver. When Brink pulled
the driver out of the car, Lawson thought the Nissan might end up being seized, so he ordered
1
The indictment also charged him with aggravated unlawful use of a weapon and two counts of
unlawful use or possession of a weapon by a felon, but the State voluntarily dismissed those
charges before trial.
No. 1-22-1951
Herrion out, too. Lawson admitted that, up until that point, he had not seen Herrion doing anything
wrong. The bag was and had remained closed, and Herrion had not gone into it or gestured toward
it. When Herrion got out of the car, Lawson decided “[f]or safety purposes” to “conduct[] a
protective pat down” of the shoulder bag. Upon placing his hand on the bag, Lawson felt something
that, from his experience and training, was likely to be a gun, which is why he decided to detain
Herrion.
¶7 The parties stipulated that Herrion had “previously been convicted of two qualifying felony
offenses.” The jury found him guilty.
¶8 After trial but before sentencing, Herrion filed a motion to dismiss the armed-habitual-
criminal charge, arguing that his residential-burglary conviction could not serve as a predicate for
armed habitual criminal because he had only been 17 years old at the time of the offense. The trial
court denied the motion to dismiss, and it sentenced Herrion to nine years’ imprisonment.
¶9 II. ANALYSIS
¶ 10 On appeal, Herrion argues that the trial court erred when it denied his motion to dismiss
the armed-habitual criminal charge. He also argues that his attorney’s failure to move to suppress
the gun denied him his right to the effective assistance of counsel.
¶ 11 A. Predicate for Armed Habitual Criminal
¶ 12 Herrion argues that if he had committed the residential burglary offense in 2020, the case
would have been resolved with delinquency proceedings in juvenile court rather than criminal
proceedings. We review the construction of statutory language de novo. [CITATION], ¶¶ 14-15.
¶ 13 As a preliminary matter, we note Herrion argues that the issue was preserved, and even if
it is forfeited, the issue can be reviewed under plain-error review. The State argues that Herrion
forfeited this argument as he did not object during the pendency of the case or preserve the issue
in his motion for a new trial. Under the plain-error doctrine, forfeiture can be excused when “a
clear and obvious error occurred” and either (1) “the evidence is so closely balanced that the error
No. 1-22-1951
alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of
the error” or (2) the error is “so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.” [CITATION].
Therefore, the first step is to determine whether there was a clear or obvious error. Id. As explained below, we find no error occurred.
¶ 14 Being an armed habitual criminal is a defined offense under Illinois law. A person commits
that offense by, among other things, possessing “any firearm after having been convicted a total of
2 or more times of any combination” of offenses specified in the statute. 720 ILCS 5/24-1.7(a)
(West 2020). Those predicate offenses include any “forcible felony as defined in Section 2-8 of
[the Criminal] Code.” Id. § 24-1.7(a)(1). The predicate convictions alleged in this case were for
residential burglary and robbery, which are both forcible felonies. Id. § 2-8. The parties agree that
a juvenile-delinquency adjudication is not a conviction for purposes of armed habitual criminal.
See [CITATION] (holding that a juvenile who had been
adjudicated delinquent had not been “convicted of a felony” under the statute defining the offense
of escape).
¶ 15 Herrion acknowledges that, when he committed residential burglary as a 17-year-old in
2009, he was subject to prosecution in criminal court under then-existing law. As he points out,
though, a 2014 amendment to the Juvenile Court Act of 1987 expanded juvenile-delinquency
jurisdiction to 17-year-olds. Pub. Act 98-61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS
405/5-120). Because the conduct that led to his conviction in the 2009 case would have resulted in
a delinquency adjudication had it been committed today, he reasons, that conviction cannot serve
as a predicate for armed habitual criminal. In support of his argument, Herrion relies on [CITATION] and [CITATION].
¶ 16 In [CITATION], the defendant was found guilty of being an armed habitual criminal. [CITATION], ¶ 6. One of the defendant’s prior convictions was for delivery of narcotics,
which he committed at age 17 in 2002. Id. On appeal, he challenged the sufficiency of the evidence
No. 1-22-1951
to sustain his conviction, arguing that the narcotics conviction could not serve as a predicate
offense because, under current law, he would have been adjudicated in juvenile court. [CITATION] ¶ 8. The
court agreed, finding that “for most offenses [the] age of the defendant operates as an element of
the offense” and that the defendant’s 2002 conviction for delivery of narcotics could not serve as
a predicate offense under the armed-habitual-criminal statute. [CITATION] ¶¶ 15-16. Based on that legal
determination, it held that the evidence at trial was insufficient to sustain his conviction. [CITATION] ¶ 16;
contra. [CITATION] ¶ 27 (holding that the evidence was sufficient to sustain the conviction
because the defendant stipulated that he had been convicted of two qualifying offenses).
¶ 17 In [CITATION], the defendant was found guilty of being an armed habitual criminal. [CITATION] ¶ 1. The defendant argued his prior convictions for armed robbery did
not qualify as predicate offenses under the armed-habitual-criminal statute because he was 17 years
old at the time he committed the offenses. [CITATION] ¶ 19. The court agreed, found the State had not
proved beyond a reasonable doubt that the defendant had two qualifying convictions at the time
he was alleged to have committed armed habitual criminal, and reduced the defendant’s conviction
to aggravated unlawful use of a weapon. [CITATION] ¶¶ 48, 50.
¶ 18 The State argues [CITATION], is instructive. In [CITATION],
the court rejected the defendant’s reliance on Gray. [CITATION] ¶ 36. The defendant was found guilty of
being an armed habitual criminal and argued on appeal the State failed to establish that his prior
conviction for armed robbery with a firearm was a predicate offense because he was 17 years old
at the time of the offense. [CITATION] ¶¶ 31-32. The court disagreed with Gray, finding that age does not
operate as an element of armed habitual criminal because the statute does not contain any reference
to age. [CITATION] ¶¶ 37-38. It therefore concluded that “defendant’s age does not change the fact that he
was ‘convicted,’ nor does it change the fact that armed robbery is a forcible felony.” [CITATION] at 38.
¶ 19 Additionally, in [CITATION], the defendant argued that
his conviction for residential burglary could not serve as a predicate conviction under the armed-
habitual-criminal statute because he was 17 years old at the time he committed the offense and if
he had committed it in 2016 it would have resulted in a juvenile adjudication. [CITATION]
No. 1-22-1951
App (4th) 200626, ¶ 26. The court explained that, based on the language of the statute, “for a
defendant’s conviction to serve as a predicate conviction for the offense of being an armed habitual
criminal, the conviction must be for an offense described in subsections (a)(1) through (a)(3) at
the time of the underlying conduct that resulted in the armed habitual criminal charge.” [CITATION] ¶ 35.
The court found “the fact that [the] defendant was 17 years old when he committed the 1983
offense for which he was convicted is irrelevant—all that matters is that defendant had a
conviction, and that conviction was for an offense described in subsection (a)(1) at the time
defendant committed the underlying conduct.” [CITATION] at 36.
¶ 20 We agree with [CITATION] and [CITATION] that, for the purposes of armed habitual criminal, all
that matters is that the defendant has a prior conviction for one of the specified offenses. In arguing
otherwise, [CITATION] asks us to read language into the armed-habitual-criminal statute that is not
there. We also note that, when it expanded juvenile-court jurisdiction to 17-year-olds, the
legislature provided that the amendment would apply prospectively “to violations or attempted
[SEGMENT 17]
violations committed on or after the effective date” of the amendment. 705 ILCS 405/5-120 (West
2014). Contrary to that express legislative intent, [CITATION]’s interpretation would effectively give
that amendment retroactive effect. Although [CITATION] was 17 years old when he committed the
offense, the fact remains that he was convicted of residential burglary, which is forcible felony and
therefore a predicate under subsection (a)(1) of the armed-habitual-criminal statute. Because that
conviction could properly be used as a predicate for armed habitual criminal, the circuit court did
not err in denying [CITATION]’s motion to dismiss.
¶ 21 As there was no error, we find no plain error. [CITATION] (“In
applying the plain error doctrine, it is appropriate to determine first whether error occurred at all
because ‘without error, there can be no plain error.’ ”) (quoting [CITATION]).
====== End of Ruling ====== No. 1-22-1951
¶ 22 B. Ineffective Assistance
¶ 23 Herrion next argues that trial counsel’s failure to file a motion to suppress the gun he was
found guilty of possessing amounted to ineffective assistance. The United States Constitution and
Illinois Constitution guarantee criminal defendants the right to effective assistance of counsel. U.S.
Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To establish a claim of ineffective assistance
of counsel, a defendant must show (1) counsel’s performance fell below an objective standard of
reasonableness and (2) a reasonable probability exists that, but for counsel’s deficient performance,
the result would have been different. [CITATION].
¶ 24 By their nature, ineffective-assistance claims often turn on matters that are outside the trial
record. To show that counsel performed deficiently, the defendant must rebut the presumption that
the alleged errors were reasonable strategic or tactical decisions. See id. at 689 (citing [CITATION]).
If the record does not show why counsel chose a particular course of action, it might be difficult or even impossible to overcome that presumption. Cf. [CITATION] (addressing ineffective-assistance claim on direct appeal because
the record disclosed “defense counsel’s reason for” taking the challenged action). Similarly, if the
record does not show what would have happened had counsel performed competently, it may not
be possible to determine whether the defendant was prejudiced. See [CITATION] (explaining that courts must evaluate “the effect of [counsel’s] errors on” the outcome). For these
reasons, when ineffective-assistance claims are raised on direct appeal, it is frequently the case
that “the record is incomplete or inadequate for resolving the claim.” [CITATION].
In those situations, the claim is better suited for collateral proceedings, and the reviewing court
should decline to resolve it on direct appeal. See [CITATION].
¶ 25 This is such a case. Herrion argues that Detective Lawson lacked a reasonable basis to
suspect that he was armed and dangerous, which would mean that the pat-down search of the
shoulder bag could not be justified as a protective frisk. See [CITATION]
(recognizing that police officers have “a narrowly drawn authority” to conduct a protective frisk
No. 1-22-1951
without probable cause when the officer “has reason to believe that he is dealing with an armed
and dangerous individual). But that was not the only possible basis for a constitutionally
permissible search. Both of the officers involved with the stop testified that the Nissan smelled of
cannabis, which may have provided probable cause to search the Nissan without a warrant. [CITATION]
And the scope of any such search would have included any
closed containers—such as Herrion’s shoulder bag—that could reasonably contain the sought-after
contraband. [CITATION] (citing [CITATION]).
¶ 26 To be sure, Stout may no longer be good law. The stop in this case happened after a change
to Illinois law legalized the possession of small amounts of cannabis starting on January 1, 2020.
See 410 ILCS 705/10-5(a)(1) (West 2020) (added by Pub. Act 101-27, § 10-5 (eff. June 24, 2019)).
Whether that partial legalization means that the odor of cannabis no longer provides probable cause
for a vehicle search is an open question that our supreme court appears poised to decide. See
[CITATION]. But even if the court holds that the odor of cannabis no longer provides
probable cause, the ultimate question here is not whether the search was legal but whether counsel
was ineffective. At the time of trial in this case, at least one Illinois case had held that Stout still
“remain[ed] good law and binding precedent” unless and until the Illinois Supreme Court
repudiated it. [CITATION], ¶ 26. It is possible that Lawson held a
good-faith belief that the search was specifically authorized by Stout and Rowell. See [CITATION]
(citing [CITATION]) (noting
that the fruits of an illegal search will not be excluded when the officer reasonably relied on binding
appellate precedent). Or there may have been circumstances not shown by the trial record that
provided probable cause to believe that the cannabis that could be smelled was not being legally
possessed. See [CITATION], ¶ 35 (finding that a delay in following signal to
pull over suggested that the defendant was trying to hide contraband and that the odor of raw
cannabis indicated that, even if legally possessed for medicinal purposes, the cannabis was not
No. 1-22-1951
being stored in a sealed container as required by law). This is not to say that counsel was not
ineffective. It is entirely possible that Lawson was well aware that the scent of cannabis might no
longer provide probable cause or that there were no circumstances suggesting that the marijuana
smell indicated illegal, as opposed to lawful, possession. The point is that the record before us does
not allow us to draw a conclusion one way or the other, so we are unable to resolve the claim that
counsel was ineffective.
¶ 27 Because the record does not disclose why counsel did not file a motion to suppress the gun
or show whether such a motion would have succeeded, we conclude that it is inadequate for us to
resolve Herrion’s claim that counsel was ineffective. Instead, that claim is best raised in a collateral
proceeding, such as one under the Post-Conviction Hearing Act (725 ILCS 5/art. 122 (West 2024)).
See [CITATION]. Based on our determination that the claim
necessarily depends on facts that are not of record, “we see no risk of forfeiture on collateral
review.” [CITATION].
¶ 28 III. CONCLUSION
¶ 29 Herrion’s conviction for residential burglary could serve as a predicate for the armed-
habitual-criminal charge even though he was only 17 years old at the time of the offense, so the
trial court properly denied his motion to dismiss. The record does not allow us to resolve Herrion’s
claim that counsel was ineffective for not moving to suppress the gun, so we decline to reverse his
conviction on that basis.
¶ 30 For these reasons, the judgment of the circuit court is affirmed.
¶ 31 Affirmed.
```
```
2024 IL App (1st) 211190-B
No. 1-21-1190
FIRST DIVISION
March 25, 2024
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 01 CR 22873
)
KENNETH DURANT, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Justice Hyman concurred with the judgment and opinion.
Justice Hyman also specially concurred, with opinion.
Justice Lavin dissented, with opinion.
OPINION
¶1 Defendant Kenneth Durant appeals from the circuit court’s denial of leave to file a pro se
successive petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-
1 et seq. (West 2020)). In a September 2022 unpublished order, we affirmed after finding that
defendant could not benefit from a 2021 amendment to the habitual criminal provision (730 ILCS
5/5-4.5-95(a) (West 2022)) that specifies that the first predicate offense be committed after the
defendant is 21 years of age. [CITATION]. Our supreme court No. 1-21-1190
subsequently issued a supervisory order directing us to consider the effect of its opinion in [CITATION]
on the issue of whether defendant’s life sentence is unconstitutional
and determine if a different result is warranted.
¶2 In light of [CITATION], we now reverse. We find that [CITATION]’s analysis of Public Act 101-652
[SEGMENT 18]
(eff. July 1, 2021)’s amendment to the Class X sentencing provision in subsection (b)(4) of section
4-4.5-95 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-95(b)(4) (West 2022)) must
apply to the identically worded amendment to the habitual criminal provision in subsection (a) of
the same statute, which requires that the “first offense was committed when the person was 21
years of age or older.” See id. § 5-4.5-95(a). [CITATION] found the amendment to the Class X
sentencing provision was intended by the legislature to “clarify” existing law as to whether crimes
committed before age 21 could be predicate offenses. [CITATION] thus
held a prior conviction for an offense committed before age 21 is not a qualifying offense, even
for a defendant sentenced before the 2021 amendment. See id. ¶¶ 22-23.
¶3 We find that [CITATION]’s determination as to the legislative intent behind the Class X
sentencing amendment in subsection (b) applies equally to the amendment to the habitual criminal
provision in subsection (a), especially since the legislature made these amendments simultaneously
in the same public act, adding identical language. Pub. Act 101-652, § 10-281 (eff. July 1, 2021).
Consistent with [CITATION], we conclude the simultaneous amendment to the Class X and habitual
criminal provisions reflected the legislature’s intent to clarify and restore the original meaning of
the provisions—that only convictions for offenses committed after age 21 should count towards
either sentencing a defendant as a Class X offender or adjudging him as a habitual criminal.
Moreover, [CITATION] applies retroactively on collateral review, since it “narrow[ed] the scope of a
No. 1-21-1190
criminal statute by interpreting its terms.” See [CITATION].
Accordingly, we reverse and remand for resentencing.
¶4 BACKGROUND
¶5 Following a jury trial in 2005, defendant was found guilty of aggravated vehicular
hijacking and two counts of armed robbery. He was sentenced to life imprisonment as a habitual
criminal, based on convictions for prior offenses including a robbery when he was 16 years old.
At the time of his sentencing, the habitual criminal provision in effect (720 ILCS 5/33B-1 (West
2000)), did not specify whether a defendant must have reached any particular age when he
committed any of the predicate offenses. 1 We affirmed on direct appeal. See [CITATION].
¶6 Defendant thereafter filed a pro se postconviction petition, which he amended. The circuit
court summarily dismissed the petition as frivolous and patently without merit. On appeal, we
reversed and remanded for further proceedings under the Act. See [CITATION]. On remand,
appointed counsel supplemented the petition and the circuit court ultimately granted the State’s
motion to dismiss. We affirmed, finding, in pertinent part, that defendant failed to make a
substantial showing that his counsel on direct appeal was ineffective for not challenging his life
sentence as unconstitutional on the grounds that he was a juvenile at the time of the first qualifying
offense. See [CITATION].
Effective July 1, 2009, that provision was repealed by Public Act 95-1052 and recodified without
modification as section 5-4.5-95(a) of the Code. Pub. Act 95-1052, § 5 (eff. July 1, 2009); 730 ILCS 5/5-
4.5-95(a) (West 2022).
No. 1-21-1190
¶7 Defendant then filed two unsuccessful pro se petitions for relief from judgment. See [CITATION].
¶8 On June 1, 2021, defendant filed a pro se motion for leave to file a successive
postconviction petition. In that petition, he alleged his life sentence was “unconstitutional as
applied to him,” since the legislature amended the habitual criminal provision to require that the
first qualifying offense occur when a defendant is 21 years or older. Specifically, in Public Act
101-652 (eff. July 1, 2021), the legislature amended section 5-4.5-95(a) of the Code to specify that
a person cannot be adjudged a habitual criminal unless “[t]he first offense was committed when
the person was 21 years of age or older.” 730 ILCS 5/5-4.5-95(a)(4)(E) (West 2022). Because one
of defendant’s qualifying offenses occurred when he was a juvenile, defendant argued that his
sentence violated the proportionate penalties clause of the Illinois Constitution. On August 18,
2021, the circuit court denied defendant leave to file the successive petition, concluding that the
2021 amendment to the habitual criminal provision did not apply retroactively and thus could not
provide him relief.
¶9 Defendant appealed. His appointed appellate counsel, the Office of the State Appellate
Defender (OSAD), initially determined that an appeal was without arguable merit and moved for
leave to withdraw pursuant to [CITATION]. In response to that
motion, defendant asserted that under [CITATION] and its progeny, as
well as the 2021 amendment to the habitual criminal provision, he was entitled to resentencing
because he was a juvenile when he committed one of the felonies underlying his sentence.
No. 1-21-1190
¶ 10 In a September 2022 order, we affirmed the denial of defendant’s motion for leave to file
a successive petition but emphasized that it was “troubling” that the first predicate offense was
committed when he was 16 years old. [CITATION], ¶ 9. We recognized
that the legislature had amended the habitual criminal provision to require that a defendant’s first
qualifying predicate offense be committed after he or she is 21 years old, but the legislature did
not specify that the amendment was retroactive. Id. ¶ 10 (citing 730 ILCS 5/5-4.5-95 (West 2022)).
As a result, we found there existed “two classes of habitual criminals: those who committed their
first qualifying offense as juveniles before the amendment and those who committed their first
qualifying offense after the amendment.” Id. ¶ 11. We remarked that due to the “non-retroactive
effect” of the amendment, “a class of juvenile offenders is being extraordinarily punished not for
the nature of their crime but when it was committed.” Id. ¶ 14. We found this “both unjust and
unjustifiable.” Id. ¶ 15.
¶ 11 Nevertheless, we recognized that we were “obligated to follow the law as it is written,”
absent further action by the legislature or our supreme court. Id. ¶ 16. Accordingly, we granted
appellate counsel’s motion to withdraw. We subsequently denied defendant’s petition for
rehearing in our court.
¶ 12 The Supreme Court’s [CITATION] Decision
¶ 13 On October 20, 2022, our supreme court issued its opinion in [CITATION], ¶ 1, which held that a defendant’s Class X sentence under section 5-4.5-95(b) of the Code (730
ILCS 5/5-4.5-95(b) (West 2016)), should be vacated because one of the predicate felony offenses
was committed when he was 17 years old. Notably, the [CITATION] defendant was sentenced before
Public Act 101-652 (eff. July 1, 2021) amended the Class X sentencing provision to specify that
No. 1-21-1190
the first predicate felony must have been committed “when the person was 21 years of age or
older.” 730 ILCS 5/5-4.5-95(b)(4) (West 2022). However, our supreme court determined that the
Class X sentencing amendment was “intended to resolve [a] conflict in the appellate court and
clarify the meaning of the original statute” such that it applied to the defendant notwithstanding
that he was sentenced before July 2021. [CITATION], ¶ 22.
¶ 14 When the [CITATION] defendant was sentenced in 2016, the Class X sentencing provision
stated:
“When a defendant, over the age of 21 years, is convicted of a Class
or Class 2 felony, after having twice been convicted in any state
or federal court of an offense that contains the same elements as an
offense now (the date the Class 1 or Class 2 felony was committed)
classified in Illinois as a Class 2 or greater Class felony and those
charges are separately brought and tried and arise out of different
series of acts, that defendant shall be sentenced as a Class X
offender. This subsection does not apply unless:
(1) the first felony was committed after February 1, 1978
(the effective date of Public Act 80-1099);
(2) the second felony was committed after conviction on
the first; and
(3) the third felony was committed after conviction on
the second.” 730 ILCS 5/5-4.5-95(b) (West 2016).
No. 1-21-1190
¶ 15 One of the predicate convictions upon which the Stewart defendant was found eligible
[SEGMENT 19]
for Class X sentencing was a residential burglary conviction in 2013, when he was 17 years old.
[CITATION], ¶ 7. In 2014, the Juvenile Court Act of 1987 was amended to raise the
age for exclusive juvenile court jurisdiction to 17 years. Id. (citing Pub. Act 98-61 (eff. Jan. 1,
2014) (amending 705 ILCS 405/5-120, 5-130)). The Stewart defendant argued that the 2013
burglary conviction was not a qualifying offense for Class X sentencing, because “if he had
committed the residential burglary on August 13, 2016 (the date that the current offense was
committed), it would have resulted in a juvenile adjudication, not a felony conviction.” Id. The
State contended that under section 5-4.5-95(b) of the Code, “whether defendant was a juvenile at
the time of the prior offense is irrelevant” and that a prior offense may serve as a predicate if its
elements are the “same as those of an offense that constitutes a Class 2 or greater Class felony as
of the date of the present offense.” Id. ¶ 15.
¶ 16 Our supreme court identified the “precise question” as “whether the legislature
intended a prior felony conviction to be a qualifying offense for Class X sentencing if the same
offense would have resulted in a juvenile adjudication had it been committed on the date of the
present offense.” Id. ¶ 16. Our supreme court remarked that “the statute is silent” on this question,
which had “resulted in a split in our appellate court.” Id. ¶¶ 16-17. The court cited three First
District decisions holding that a prior conviction is not a predicate for Class X sentencing if it
would now be resolved through delinquency proceedings, as well as a contrary Fourth District
decision. Id. ¶ 17 (comparing [CITATION], ¶ 21, and [CITATION], ¶ 11,
with [CITATION], ¶ 25 (holding that prior conviction based on
====== End of Part ====== No. 1-21-1190
offense when defendant was 17 years old was a qualifying predicate conviction for Class X
sentencing)).
¶ 17 Our supreme court indicated that the statute’s silence was an “ambiguity” but that
“[l]egislation enacted after the appellate court rendered its conflicting decisions *** clarified that
the General Assembly did not intend for convictions of juveniles in adult court to be considered
qualifying offenses for Class X sentencing.” [CITATION] ¶ 18. Specifically, “Public Act 101-652 (eff. July
1, 2021) amended section 5-4.5-95(b)(4) of the Code to provide that the first qualifying offense
for Class X sentencing must have been ‘committed when the person was 21 years of age or older.’
[CITATION] (amending 730 ILCS 5/5-4.5-95(b)(4)).” [CITATION] ¶ 19.
¶ 18 Our supreme court went on to determine that this amendment was a clarification of
existing law, rather than a change in law. It recognized that “[a]lthough a statutory amendment
creates a presumption that it was intended to change existing law, this presumption is not
controlling. [Citation.]” [CITATION] ¶ 20. It explained that circumstances surrounding an amendment may
indicate that “legislature intended merely to interpret or clarify the original act.” [CITATION] Our supreme
court explained that circumstances indicating a “legislative intent to clarify rather than make a
substantive change in the law include” (1) whether the legislature “declared that it was clarifying
a prior enactment,” (2) whether a “conflict or ambiguity existed prior to the amendment,” and
(3) whether the amendment is “consistent with a reasonable interpretation of the prior enactment
and its legislative history.” (Internal quotation marks omitted.) [CITATION]
¶ 19 Our supreme court emphasized that “prior to the legislature amending section 5-4.5-
95(b) of the Code, a conflict in our appellate court existed” as to whether a prior conviction that
would now result in a juvenile adjudication could constitute a predicate offense for Class X
sentencing. [CITATION] ¶ 21 (citing the conflicting decisions in [CITATION]).
No. 1-21-1190
[CITATION], ¶ 26). Stewart found these conflicting decisions “negate[d] the presumption that the legislature intended to change existing law when it amended the statute to require that qualifying offenses must have been committed when the person was 21 years of age or older. [Citation.]” Id. ¶ 22.
¶ 20 Our supreme court in Stewart “conclude[d] that Public Act 101-652 was intended to resolve the conflict in the appellate court and clarify the meaning of the original statute.” Id. Therefore, the Stewart defendant’s “conviction for an offense committed when he was 17 years old was not a qualifying offense for Class X sentencing under the previous version of section 5-4-95(b) of the Code.” Id. Thus, his sentence was “properly vacated *** based on his statutory ineligibility for Class X sentencing.” Id. ¶ 23.
¶ 21 The Supreme Court’s Supervisory Order in This Case
¶ 22 On December 6, 2022, defendant filed a petition for leave to appeal in our supreme court. On March 29, 2023, our supreme court entered a supervisory order in which it denied defendant’s petition for leave to appeal. However, the supreme court directed us to vacate our September 2022 order and to “consider the effect of this Court’s opinion in [CITATION], on the issue of whether defendant’s life sentence is unconstitutional and determine if a different result is warranted.”
¶ 23 The mandate for the supervisory order was issued on May 3, 2023. Shortly thereafter, we vacated our September 2022 order. In addition, we directed OSAD to notify this court whether it wished to maintain its motion to withdraw from the appeal pursuant to Finley. In response, OSAD moved for leave to withdraw its previously filed motion to withdraw. We allowed that motion and
No. 1-21-1190
set a briefing schedule for the parties to address the supreme court’s supervisory order. The matter
has now been fully briefed and orally argued before this court.
¶ 24 ANALYSIS
¶ 25 Defendant now asserts that, in light of [CITATION], the trial court erred when it denied his
motion for leave to file a successive postconviction petition challenging his natural life sentence
as unconstitutional. He argues that [CITATION]’s analysis of Public Act 101-652’s amendment to the
Class X sentencing provision in subsection (b) of section 5-4.5-95 of the Code (730 ILCS 5/5-4.5-
95(b) (West 2022)) applies equally to the “identical” amendment to the habitual criminal provision
in subsection (a) of the same section of the Code. Id. § 5-4.5-95(a). Defendant correctly points out
that Public Act 101-652 simultaneously amended both subsection (a) and (b) to add the same
language regarding defendant’s age when a predicate offense was committed. Pub. Act 101-652
(eff. July 1, 2021) (amending 730 ILCS 5/5-4.5-95(a), (b)). That is, both subsections now specify
that the “first offense [must have been] committed when the person was 21 years of age or older”
for a person to be adjudged as a habitual criminal or to be subject to Class X sentencing. 730 ILCS
5/5-4.5-95(a)(4)(E), (b)(4) (West 2022). Defendant suggests that [CITATION]’s discussion of
legislative intent applies to both subsections, such that both amendments to subsection (a) and
subsection (b) were “merely clarifying the long-standing provisions [that] the State cannot *** use
crimes committed by the defendant prior to the age of 21 as a predicate offense” for either
provision. He proceeds to argue that because [CITATION] narrowed the scope of a criminal statute, it
is a substantive rule that applies on collateral review.
¶ 26 In response, the State contends that [CITATION] is inapplicable because it was limited to the
specific amendment to the Class X sentencing provision in subsection (b) of section 5-4.5-95 but
- 10 - No. 1-21-1190
does not extend to the simultaneous amendment to the habitual criminal provision in subsection
(a). The State suggests that Stewart’s rationale for finding that the 2021 amendment was a mere
clarification of subsection (b) is not applicable to subsection (a). Whereas Stewart found the prior
version of subsection (b) was “silent” as to defendant’s age at the time predicate offenses, the State
urges that the previous version of the habitual criminal provision was not silent but required that
the person was at least 18 years old at the time of the third offense. See [CITATION] (“Anyone who, having attained the age of 18 at the time of the third offense, is
[SEGMENT 20]
adjudged an habitual criminal [and] shall be sentenced to a term of natural life imprisonment.”).
The State points out that the 2021 amendment to the habitual criminal provision eliminated the
phrase referencing the age of 18 as of the third offense and added that a person must be at least 21
years old at the time of the first offense. See [CITATION]. For that
reason, the State argues that the 2021 amendment to subsection (a) was not a “mere clarification”
of existing law but substantively changed the habitual criminal provision. In turn, the State argues
that the amendment does not apply retroactively to benefit defendant.
¶ 27 In his reply brief, defendant acknowledges that “as of 2016, subsection (a) was amended
to include an age qualifier” for a defendant’s third offense. [CITATION].
Yet, defendant maintains the 2016 amendment “has no impact upon the 2021 clarification by the
legislature.” According to defendant: “The 2021 amendment pertains to whether an offense
committed when the defendant was a juvenile can be used as one of the two predicates for the
‘Habitual Criminal’ provisions of section 5-4.5-95, whereas the 2016 amendment pertains to the
offender’s age at the time of the 3rd offense.”
- 11 - No. 1-21-1190
¶ 28 At oral argument, defendant reiterated his position that Stewart reflects that the identically
worded 2021 amendment to both subsections (a) and (b) must be regarded as the legislature’s
clarification of its original intent for both provisions—that crimes committed before age 21 should
not count as predicates for either habitual criminal status or Class X sentencing. Defendant also
points out that, following a similar supervisory order pursuant to Stewart, the Fourth District
ordered resentencing for a defendant sentenced under the habitual criminal provision before the
2021 amendment. [CITATION] (accepting the State’s
concession that under Stewart, the court was required to vacate defendant’s natural life sentence
and remand for resentencing, where one of the predicate offenses for adjudging him a habitual
criminal was committed when he was 17 years old). 2
¶ 29 We keep in mind that our role on remand from the supervisory order is to consider what
effect (if any) the Stewart decision has on the merits of defendant’s claim, which is premised on
the 2021 amendment to the habitual criminal provision. The parties do not dispute that Stewart
determined that when Public Act 101-652 amended the Class X sentencing provision to add that
the “first offense [must be] committed when the person was 21 years of age or older,” it was a
clarification of existing law, rather than a change in law. [CITATION] There is
also no dispute that Public Act 101-652 simultaneously added the same phrase to the habitual
criminal provision. Essentially, the parties dispute whether Stewart’s “clarification” analysis
applies only to the Class X sentencing provision contained in subsection (b) of section 5-4.5-95 of
the Code or if it also extends to the habitual criminal provision in subsection (a).
At oral argument, defendant acknowledged that the State is not bound in this case by the
concession it made in [CITATION].
- 12 - No. 1-21-1190
¶ 30 For the following reasons, we agree with defendant that Stewart’s discussion of Public Act
101-652’s amendment to the Class X provision in subsection (b) must inform our interpretation of
the simultaneous amendment to the habitual criminal provision in subsection (a). Moreover,
contrary to the State’s suggestion, our conclusion is not undermined by the legislative history of
the habitual criminal provision. Rather, we think Public Act 101-652 is properly viewed as the
legislature’s restoration of the original intended meaning for both subsection (a) and (b)—that
convictions under age 21 should not be used as predicate offenses.
¶ 31 We recognize that Stewart did not explicitly discuss the legislative intent behind the
amendment to the habitual criminal provision. Nevertheless, as a matter of logic, Stewart’s
discussion of the legislative intent behind Public Act 101-652’s amendment to the Class X
provision in subsection (b) cannot be viewed in isolation from the legislature’s simultaneous and
substantially identical amendment to the habitual criminal provision. That is, Stewart’s conclusion
that the Class X sentencing amendment was intended as a clarification of existing law (and not
limited to prospective application) must inform our reading of the virtually identical amendment
to the habitual criminal provision.
¶ 32 We emphasize that both amendments were implemented simultaneously, as part of the
same public act. Further, the legislature inserted the exact same language at subsection (a) and (b)
of section 5-4.5-95 of the Code to state that, to be adjudged as a habitual criminal or to be eligible
for Class X sentencing, the “first offense [must have been] committed when the person was 21
years of age or older.” 730 ILCS 5/5-4/5-95(a)(4)(E), (b)(4) (West 2022). Given these
circumstances, it is hard to conceive how the legislature could have intended one of the
amendments to be a mere clarification of existing law (that applied retroactively), while having a
- 13 - No. 1-21-1190
very different intent for the other identically worded amendment. Indeed, it would be incongruous
and defy common sense to find the legislature did not act with similar intent when it added identical
provisions at the very same time in the same public act. Rather, we think it is reasonable to presume
that simultaneous, identical amendments within the same section of the Code were driven by the
same legislative intent and purpose.
¶ 33 This is consistent with the general principle that, in discerning legislative intent, statutory
“words and phrases must be construed in relation to other relevant statutory provisions and not in
isolation.” [CITATION] (same.) Ascribing the same intent to similarly worded amendments is also
consistent with the principle that “where a word is used in different sections of the same statute,
the presumption is that the word is used with the same meaning throughout the statute, unless a
contrary legislative intent is clearly expressed.” [CITATION].
¶ 34 In Public Act 101-652, the legislature simultaneously added the same language regarding
the minimum age for the commission of predicate offenses to support either Class X sentencing or
to be adjudged a habitual criminal. Our supreme court has now determined that the legislative
intent for the Class X sentencing amendment was to clarify existing law, such that its minimum
age requirement applied even to a person who was sentenced as a Class X offender before the 2021
amendment. [CITATION] (vacating defendant’s Class X sentence imposed
in 2017 based in part on conviction for offense committed when he was 17 years old). We agree
with defendant that [CITATION] should guide our reading of the intent behind the legislature’s
simultaneous amendment specifying an identical minimum age requirement for prior offenses used
to sentence an individual as a habitual criminal.
- 14 - No. 1-21-1190
¶ 35 We acknowledge, as emphasized by the State, that the legislative history of the habitual
criminal provision differs from that of the Class X sentencing provision. Specifically, the version
of the habitual criminal provision immediately preceding Public Act 101-652 (in effect from 2016
to 2021), indicated that persons as young as 18 could be adjudged a habitual criminal. See 730
ILCS 5/5-4.5-95(a)(5) (West 2020) (“Anyone who, having attained the age of 18 at the time of the
third offense, is adjudged an habitual criminal shall be sentenced to a term of natural life
imprisonment.”). Before 2016, the habitual criminal provision did not specify any minimum age.
See 730 ILCS 5/5-4.5-95(a) (West 2014).
¶ 36 The State urges that the “age of 18” language in the immediately preceding version of the
habitual criminal provision means that the new language added by Public Act 101-652 must be
regarded as a substantive change in law. The State argues that this differentiates the 2021
amendment of the habitual criminal provision in subsection (a) from [CITATION]’s discussion of the
simultaneous amendment to the Class X sentencing provision in subsection (b).
¶ 37 We disagree. Viewing the legislative history of both subsections (a) and (b) in light of
[CITATION], we read the 2021 amendment in Public Act 101-652 as effecting a clarification and
restoration of the original meaning behind both subsections. Under our reading, the legislature
originally intended that convictions for crimes under age 21 should not count toward either
habitual criminal status under subsection (a) or Class X sentencing under subsection (b). Then,
from 2016 until 2021, the legislature made subsection (a) more punitive by grafting the “age of
18” language into the habitual criminal provision. In 2021, Public Act 101-652 restored
subsections (a) and (b) to their original intended meaning, explicitly clarifying that only offenses
- 15 - No. 1-21-1190
committed after the age of 21 should count toward eligibility for habitual criminal status or Class
[SEGMENT 21]
X sentencing. This reading is consistent with [CITATION] and the legislative history of both provisions.
¶ 38 Accordingly, pursuant to [CITATION], we hold that the 2021 amendment to the habitual
criminal provision must be regarded as a clarification and restoration of the original law, such that
it is not limited to prospective effect. That is, the requirement that predicate offenses must have
been committed after age 21 applies to individuals who were sentenced as habitual criminals before
the passage of Public Act 101-652 in 2021.
¶ 39 We further agree with defendant that this conclusion, derived from [CITATION], applies to cases
on collateral review, including his case. As this court has explained:
“ ‘A judicial decision that establishes a new constitutional rule
applies to all criminal cases pending on direct review.’ [CITATION]
(citing [CITATION]). As to convictions that are already final, however,
a new rule does not apply retroactively to cases on collateral review
except in two instances. First, ‘ “[n]ew substantive rules generally
apply retroactively.” ’ (Emphasis in original.) Id. (quoting [CITATION],
U.S. at 351). Substantive rules include those that narrow the
scope of a criminal statute by interpreting its terms, and
constitutional determinations that place particular conduct or
persons covered by the statute beyond the State’s power to punish.
Id. (citing [CITATION], 542 U.S. at 351-52).” [CITATION], 2014 IL App (1st)
, ¶ 86.
- 16 - No. 1-21-1190
Substantive rules “apply retroactively because they necessarily carry a significant risk that a
defendant stands convicted of an act that the law does not make criminal or faces a punishment
that the law cannot impose upon him.” (Internal quotation marks omitted.) [CITATION], ¶ 36.
¶ 40 We agree with defendant that Stewart effectively “narrow[ed] the scope of a criminal
statute by interpreting its terms,” such that it constitutes a substantive rule that applies retroactively
to cases on collateral review. [CITATION], ¶ 86. Accordingly, defendant
benefits from the Stewart decision and our foregoing discussion of how its holding extends to the
2021 amendment to the habitual criminal provision requiring that predicate offenses must be
committed after age 21.
¶ 41 We thus find that defendant was improperly sentenced to natural life as a habitual criminal,
insofar as his sentence was premised on a predicate offense committed when he was under 21 years
of age. His sentence violated the habitual criminal provision in section 5-4.5-95(a) of the Code,
and it also constituted a violation of his constitutional due process rights. See [CITATION],
(finding due process violation where defendant was
improperly sentenced as an “armed career criminal” under the Armed Career Criminal Act of 1984
(18 U.S.C. 924(e)(2) (2009), where one of the predicate offenses underlying the sentence was not
a “violent felony” within the meaning of that statute). 3
As we agree that defendant’s due process rights were violated, we need not additionally assess the
merits of his argument that his sentence violates the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970 art. I, § 11) because it shocks the moral sense of our community. See [CITATION] (“[A] sentence violates the proportionate penalties clause if it is so
cruel, degrading, or disproportionate to the offense that the sentence shocks the moral sense of the
community. [Citations.]”).
- 17 - No. 1-21-1190
¶ 42 As to the appropriate remedy, we find that there is no need for further postconviction
proceedings since there are no disputed issues of fact. That is, defendant is entitled to resentencing
under [CITATION] and its application to the habitual sentencing provision.
¶ 43 CONCLUSION
¶ 44 For the foregoing reasons, we reverse the circuit court’s denial of defendant’s petition for
leave to file a pro se successive postconviction petition, vacate his natural life sentence, and
remand for resentencing in accordance with this order.
¶ 45 Reversed and remanded.
¶ 46 JUSTICE HYMAN, specially concurring:
¶ 47 “Ultimately, the issue of the status of mercy in judgment and punishment confronts us with
a fundamental question: What are the values and virtues of society, and the judges acting in its
name?” [CITATION], 35 Emory Int’l L. Rev. 549, 593 (2021). For the Illinois legislature, the Illinois Supreme Court, and the
majority in this case, the answer, as it applies to Class X for convictions before the age of 21,
aligns with Illinois’s evolving view on juvenile justice, taking into account the root causes of
delinquency, developmental immaturity, and greater potential for rehabilitation.
¶ 48 The courts and the legislature act within constitutional constraints regarding “[a]ll
penalties” with an eye toward both “the seriousness of the offense” and “the objective of restoring
the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Punishment for crime, yes, but
with the restoration of the offender into a constructive member of society for any sentence they
receive. Indeed, last year, our supreme court reaffirmed this commitment in the sentencing of
emerging adults: “Illinois law [has long] recognized the special status of juvenile offenders for
- 18 - No. 1-21-1190
purposes of applying the principles under the proportionate penalties clause.” (Internal quotation
omitted.) [CITATION], ¶ 41 (discussing [CITATION], ¶ 61).
¶ 49 After the ratification of the 1970 Illinois Constitution, the legislature crafted new
sentencing laws that fixed natural life for some violations of a new class of felonies, Class X. See,
e.g., 720 ILCS 5/33B-1 (West 2000) (now codified at 730 ILCS 5/5-4.5-95(a) (West 2022)). See
generally David H. Norris & Thomas Peters, Fiscal Responsibility and Criminal Sentencing in
Illinois: The Time for Change Is Now, 26 J. Marshall L. Rev. 317, 323-34 (1993) (discussing
history of tough-on-crime sentencing laws post-ratification).
¶ 50 Did Class X mean that some criminals are incapable of returning to useful citizenship? See
[CITATION] (asserting “[i]mplicit in this statute is a legislative determination that a three-time offender should be removed from society since he [or
she] is impervious to the rehabilitative efforts of the State”). Although our supreme court once
answered in the affirmative ([CITATION]), 30 years later,
the legislature and the courts have reduced the use of life sentences without the possibility of parole
for juvenile offenders, signifying a broad societal acknowledgment that offenders under 21 years
should not be subjected to the same harsh penalties as adults.
¶ 51 Over time, tough-on-crime laws precipitated an explosion in the prison population.
According to one study, the national population of people serving life sentences in 2020 exceeded
the size of the entire prison population in 1970, the year Illinois ratified its most recent constitution.
See People Serving Life Exceeds Entire Prison Population of 1970, The Sentencing Project (Feb.
- 19 - No. 1-21-1190
20, 2020), https://www.sentencingproject.org/publications/people-serving-life-exceeds-entire-
prison-population-1970/ [https://perma.cc/WP74-7WUY].
¶ 52 Among the many facing these unsparing sentencing laws was Denzal Stewart, whose
appeal in [CITATION], informs the majority’s analysis. In [CITATION], the
supreme court held that the legislature did not intend for a prior conviction like Stewart’s—for an
offense committed at age 17—to constitute a qualifying offense for Class X sentencing. Id. ¶ 22.
Relying on [CITATION], the majority holds the same amendments that impacted Stewart’s sentence
impacted Durant’s. Supra ¶ 37 (analyzing 720 ILCS 5/33B-1 (West 2000) and 730 ILCS 5/5-4.5-
95(a)(4)(E), (b)(4) (West 2022)). Holding otherwise, as the dissent would do (infra ¶ 59), thwarts
the proportionate penalties clause. See [CITATION], ¶ 40 (noting shared duty
of court and legislature to administer “[g]reat constitutional provisions” with “caution” (internal
quotation marks omitted)).
¶ 53 But we need not address that issue today. It is enough to follow the logic of [CITATION] and,
by doing so, heed Durant’s plea at his original sentencing hearing:
“I’d just ask the Court to show mercy, you know, give me another chance. That’s all I can
ask. I don’t know if the law permits it or whatever, but I just ask that you listen to it and
just show mercy.”
¶ 54 Properly understood, section 5-4.5-95(a) partially answers the question at the beginning of
[SEGMENT 22]
this special concurrence while also realizing the mercy Durant invocated.
¶ 55 JUSTICE LAVIN, dissenting:
¶ 56 For the reasons to follow, I respectfully dissent. First, the plain language of the habitual
criminal statute under which defendant was sentenced (720 ILCS 5/33B-1 (West 2004)) is simply
- 20 - No. 1-21-1190
not ambiguous. 4 Defendant has not identified any split of authority regarding that subsection of
the statute, as it stood at his sentencing. Cf. [CITATION]. Based on his
prior convictions of numerous Class X offenses, the statute clearly did apply. There was no age
limitation at all, and he met all the requirements for sentencing as a habitual criminal as delineated
below. See [CITATION], ¶¶ 33-34.
¶ 57 Second, even assuming any ambiguity existed, defendant cannot benefit from the
legislature’s recent amendment because the amendment was substantive and, thus, does not apply
retroactively. See [CITATION] (noting substantive changes to statutes
are prospective only); [CITATION] (noting “prospective
application promotes finality in sentencing by refusing to disturb charging and sentencing
decisions that were valid when imposed”); [CITATION], ¶¶ 29-31;
cf. [CITATION] (stating that a judicial decision establishing a
new constitutional rule applies retroactively where that rule narrows the scope of a criminal
statute). As the State notes, the age limitation for a mandatory natural life sentence under
subsection 5-4.5-95(a) of the Unified Code of Corrections and its predecessor subsections has
varied from (1) containing no age requirement (when defendant was sentenced in 2005), to
(2) requiring the defendant to be 18 years old at the time of the third Class X offense (starting in
2016), to (3) requiring the defendant to be 21 years old at the time of the first Class X offense and
eliminating the prior age requirement (starting on July 1, 2021). See [CITATION]; cf.
We note that section 33B-1 (720 ILCS 5/33B-1 (West 2004)) was repealed in 2009 and now
appears in section 5-4.5-95(a) of the Unified Code of Corrections. 730 ILCS 5/5-4.5-95(a) (West 2022);
Pub. Act 95-1052 (eff. July 1, 2009).
- 21 - No. 1-21-1190
Stewart, [CITATION] (addressing section 5-4.5-95(b), which required the defendant
to be 21 years of age even at the time he was originally sentenced).
¶ 58 For a person to have committed a third Class X offense at 18 years old after having been
separately convicted of two prior Class X offenses, that person necessarily had to have been a
juvenile at the time of those earlier convictions. As such, until July 1, 2021, an adult who had been
convicted of two prior Class X offenses as a juvenile could be sentenced under section 5-4.5-95(a)
to natural life following a third Class X offense at the age of 18 or older. [CITATION]
(noting statutory changes must have a beginning and may necessarily
exclude one group from benefitting from the amendment without violating the constitution). This
rebuts any possible inference that the legislature merely intended to clarify the statute. Cf. Stewart,
[CITATION] (noting that the previous version of the statute was silent, and the
legislative amendment clarified existing law).
¶ 59 Given the crucial differences between the legislative history behind subsection 5-4.5-95(a)
and subsection (b), Stewart’s reasoning regarding subsection (b) cannot logically be applied to the
changes made to subsection (a) by Public Act 101-652 (eff. July 1, 2021) (amending 730 ILCS
5/5-4.5-95(a), (b)). Moreover, Stewart did not even hold that its interpretation of subsection (b)
could apply retroactively to cases on collateral review. The only reasonable interpretation of the
changes to subsection 5-4.5-95(a) is that, the legislature made a deliberate choice to substantively
amend the habitual criminal statute’s requirements as to the age of the offender. See Stewart, [CITATION] (stating that “[t]he legislature’s
determination of a particular punishment for a crime in and of itself is an expression of the general
moral ideas of the people”). Thus, at the time defendant was sentenced in 2005, the legislature
- 22 - No. 1-21-1190
intended that his Class X convictions, even those he earned as a juvenile, be counted towards his
tally for sentencing as a habitual offender. See [CITATION], ¶¶ 10-11.
¶ 60 Here, the record shows that defendant committed his first armed robbery in 1985 at age 16,
two armed robberies in 1991 at age 22, and the offenses on which the instant conviction rests, an
armed robbery and vehicular highjacking, in 2001 at or around age 32. As to the 1985 offense
committed at age 16, defendant was sentenced as an adult and pleaded guilty to the offense.
Defendant has not shown that he should be subject to any special conditions as a result of his youth
or background as a youth, as he continued to habitually offend by committing Class X offenses
long into his adulthood. Nor has he established a violation of his due process rights. Consequently,
he has not shown the cause and prejudice necessary for leave to file a successive postconviction
petition. I would affirm the circuit court’s denial of leave to file defendant’s petition.
- 23 - No. 1-21-1190
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 01-CR-22873;
the Hon. Vincent M. Gaughan, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Christofer R. Bendik, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Douglas P. Harvath, and John E. Nowak, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
- 24 -
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[CITATION]
FIFTH DIVISION
June 28, 2024
No. [CITATION]
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. No. 22 CR 3
)
LOUIS HAMPTON, ) Honorable
) Peggy Chiampas,
Defendant-Appellant. ) Judge presiding.
JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justice Lyle concurred in the judgment and opinion.
Justice Navarro dissented, with opinion.
OPINION
¶1 Defendant Louis Hampton was convicted of being an armed habitual criminal (AHC) (720
ILCS 5/24-1.7(a) (West 2020)) and sentenced to six years in prison. On appeal, he argues he was
denied a fair trial because the trial court refused to instruct the jury that, to find him guilty, it had
to find that he “knowingly” possessed a firearm. For the following reasons, we reverse and remand
for a new trial.
¶2 I. BACKGROUND
¶3 The State charged Mr. Hampton by indictment with AHC and other related offenses. The
AHC count alleged that he “knowingly or intentionally possessed a firearm” after being convicted
of certain other felonies. Before jury selection, the trial court read that language to the prospective
jurors.
¶4 During opening statements, defense counsel asserted that Mr. Hampton was not guilty of No. 1-23-0171
AHC because, although police officers discovered a firearm underneath the seat in a vehicle he
was driving, the State could not prove that he knew the firearm was there.
¶5 Chicago police officer Michael Carreon testified that, around 7 p.m. on November 16,
2021, he and three other officers drove past a Jeep with an inoperable headlight. Officer Carreon
made a U-turn, caught up to the Jeep, and activated his police vehicle’s lights, siren, and spotlight.
The Jeep turned left onto another street, and the spotlight illuminated the driver’s side of the Jeep.
Officer Carreon testified that he observed the Jeep’s driver “make a forward movement” while
“leaning towards the floorboard of the vehicle.” The Jeep traveled about a quarter of a block more
and pulled over.
¶6 Officer Carreon approached the Jeep and encountered Mr. Hampton, whom he identified
in court, in the driver’s seat. Officer Carreon testified that he smelled fresh cannabis through the
open driver’s side window. Mr. Hampton gave Officer Carreon identification that was not a
driver’s license and insurance documentation for the Jeep that did not specifically list him as an
insured driver. According to Officer Carreon, Mr. Hampton did not make eye contact and appeared
nervous. Officer Carreon asked Mr. Hampton to put the vehicle in park, which he did. He then
asked Mr. Hampton to exit the Jeep, but Mr. Hampton refused. Officer Carreon asked Mr.
Hampton to exit several more times over the course of about five minutes. At that point, the car’s
passenger, whom the officer had also been asking to leave the car, exited, and as that person did
so, all the Jeep’s doors unlocked. Officer Carreon opened the driver’s door and again asked Mr.
Hampton to exit the vehicle. Mr. Hampton complied and was placed in handcuffs.
¶7 Officer Carreon then looked into the driver’s side of the car and found a loaded, black,
semiautomatic pistol “protruding” from underneath the seat. He “had to do a slight lean” to see the
firearm, which “wasn’t deep underneath the seat,” but the firearm was not buried under anything.
No. 1-23-0171
As the officers attempted to place Mr. Hampton in a police vehicle, he pulled away “pretty
aggressive[ly]” and attempted to flee.
¶8 The State published footage from Officer Carreon’s body-worn camera. It is included in
the record on appeal and has been reviewed by this court. It depicts officers parking their vehicle,
exiting, and approaching a dark SUV. Officer Carreon approaches Mr. Hampton, the driver of the
SUV, but there is no audio until approximately 30 seconds into their conversation. When the audio
begins, Mr. Hampton asks why the officer has stopped him, and Officer Carreon responds that one
of his headlights is out. Mr. Hampton states that the vehicle is his “girl’s” and provides an
identification card, which the officer notes is not a driver’s license, as well as proof of insurance,
which the officer notes does not list Mr. Hampton as an insured driver of the vehicle. Officer
Carreon asks Mr. Hampton if there is a gun in the car, and either Mr. Hampton or the passenger
responds “No.”
¶9 Officer Carreon then asks Mr. Hampton to step out of the vehicle. Mr. Hampton does not
comply; he asks the officer to call “a white shirt,” which Officer Carreon testified means a senior
officer or supervisor. Officer Carreon asks multiple times if Mr. Hampton has any “weed” in the
vehicle, and Mr. Hampton responds that he does not. Mr. Hampton speaks to someone else as if
on the phone. He repeatedly declines the officer’s requests to exit the vehicle. After a few minutes
of conversation, Officer Carreon opens the driver’s door, grabs Mr. Hampton’s shoulder, and tells
him to step out. Mr. Hampton complies. The officers pat him down and handcuff him. Officer
Carreon leans into the vehicle from the open driver’s door, but the camera points towards the street.
As he straightens, the camera depicts him holding a firearm. He also searches the rear driver’s side
of the vehicle. As the officers go to place Mr. Hampton in the police vehicle, the camera is
obstructed, and the officers repeatedly say that he is making it “worse” for himself and is going to
No. 1-23-0171
be charged with resisting.
¶ 10 At trial, Officer Carreon marked on a still image from his body-worn camera footage the
place where he discovered the firearm. He noted that the firearm was not visible from the angle
the image was taken, so he marked on the seat the spot where the firearm was beneath the seat.
The image is included in the record on appeal and depicts a red mark a few inches back from the
front of the seat.
¶ 11 On cross-examination, Officer Carreon acknowledged that his camera footage did not
depict him asking Mr. Hampton why he reached downwards. On redirect examination, he testified
he did not ask that because he did not want Mr. Hampton to flee the traffic stop.
¶ 12 Chicago police officer Timothy Karn testified that he tested the firearm Officer Carreon
identified, a 9-millimeter semiautomatic pistol, and it was functional. The firearm’s magazine
could hold 12 rounds, with 1 additional round in the chamber. The State entered stipulations that
Mr. Hampton had two prior convictions qualifying him for AHC and that there were four
fingerprint impressions on the firearm’s magazine but that they were unsuitable for identification.
¶ 13 Mr. Hampton called his girlfriend, Darshay Scott, as a witness. Ms. Scott testified that she
owned the Jeep that Mr. Hampton had been driving. She also owned a black 9-millimeter firearm
and had been issued a Firearm Owner’s Identification (FOID) card in 2017. She explained that an
ex-boyfriend gave her the firearm in 2019. She kept it in a closet at her sister-in-law’s home rather
than at her own home, as she had an autistic son. On November 16, 2021, her sister-in-law had a
party. There were children present, including Ms. Scott’s. Ms. Scott therefore took the firearm to
her Jeep and placed it under the driver’s seat. She did not tell Mr. Hampton, who was talking to
Ms. Scott’s sister at the time. A few hours later, Mr. Hampton borrowed Ms. Scott’s Jeep to drop
off a friend.
No. 1-23-0171
¶ 14 On cross-examination, Ms. Scott testified that she had one biological daughter and, in
November 2021, three foster children. She took the firearm to her sister-in-law’s home in 2019
when she got her foster children. Ms. Scott had not been to her sister-in-law’s house between then
and the party, as they had been “having difficulties.” She believed the firearm could hold 15
rounds, could not pronounce the name of the manufacturer, and did not know the model. She never
had a case or holster for the firearm.
¶ 15 Before Mr. Hampton was arrested, Ms. Scott was on Facetime with him. She testified that
she did not tell him in that conversation about the firearm in the Jeep. When asked whether she
thought it was important to tell him there was a loaded gun in the car, she said that she had been
drinking and was under the influence. After Mr. Hampton was arrested, Ms. Scott went to the
police station and told officers the firearm was hers. An investigator from the state’s attorney’s
office came to her home later, but she did not give a statement because she was on her way out.
The investigator left his contact information, but Ms. Scott did not contact him.
[SEGMENT 2]
¶ 16 On redirect examination, Ms. Scott identified the firearm Officer Carreon recovered as the
one she had placed under the seat in her vehicle, although she noted the “clip” that had been in the
firearm was missing. The defense entered a stipulation that Ms. Scott had title to the Jeep and a
valid FOID card.
¶ 17 During the jury instructions conference, the court noted the State had proposed an
instruction defining AHC. The instruction provided that “[a] person commits the offense of [AHC]
when he possesses any firearm after previously being convicted of two qualifying felony offenses.”
Defense counsel objected that the instruction was improper because it “remove[d] the knowingly
portion, the requirement that he have the mens rea.” The State responded that the instruction
tracked the language of the AHC statute and that there would also be a “possession instruction.”
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'people-v-wallace', which should be replaced with `[CITATION]`. No. 1-23-0171
The court overruled defense counsel’s objection.
¶ 18 The next proposed instruction, to which counsel did not object, was Illinois Pattern Jury
Instructions, Criminal, No. 4.16 (4th ed. 2000) (hereinafter IPI Criminal 4th). That instruction
provided that “[a] person has actual possession when he has immediate and exclusive control over
a thing. A person has constructive possession when he lacks actual possession of a thing but he
has both the power and the intention to exercise control over a thing ***.” Id.
¶ 19 In closing argument, the State referenced both actual and constructive possession, although
it spent more of its argument explaining why the jury should find that Mr. Hampton had
“constructive possession.” The State also noted that defense counsel repeatedly argued that, to find
Mr. Hampton guilty, the jury would need to find that he knew the firearm was in the Jeep. In
rebuttal, the State argued that Mr. Hampton “leaned forward because of this firearm that he had in
the car that he knew he wasn’t supposed to have.”
¶ 20 The court issued the jury instructions and released the jury for deliberations around 5:39
p.m. At about 7:30 p.m., the jury sent a note asking if the firearm was registered to Ms. Scott or,
if not, “registered in general.” The parties agreed the court should answer that the jurors had the
instructions on the law and should continue to deliberate. At 7:55 p.m., the jurors sent another note
stating that they were not unanimous—“[p]arties have indicated there is nothing that can change
their opinion”—and asking what to do. The court instructed them to continue deliberating. Around
8:57 p.m., the court released the jury for the night. The next morning, the jury began deliberating
again around 10:35 a.m. At 1:57 p.m., the jury reached a verdict and found Mr. Hampton guilty of
AHC.
¶ 21 Mr. Hampton filed a motion for a new trial in which he did not specifically argue that the
court erred in failing to instruct the jury that the State had to prove he “knowingly” possessed the
No. 1-23-0171
firearm. The court denied the motion and sentenced Mr. Hampton to six years in prison.
¶ 22 II. JURISDICTION
¶ 23 Mr. Hampton was sentenced on January 12, 2023, and he filed his notice of appeal the
same day. We have jurisdiction over this appeal under article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)
and Rule 606 (eff. Mar. 12, 2021), governing appeals from final judgments in criminal cases.
¶ 24 III. ANALYSIS
¶ 25 On appeal, Mr. Hampton argues that the trial court violated his right to a fair trial by
refusing his request to instruct the jurors that, to find him guilty of AHC, they had to find that he
“knowingly” possessed a firearm. Mr. Hampton asserts that as the jury instructions failed to inform
the jury of that required mental state, an element of the offense, the instructions failed to accurately
convey the applicable law. The parties agree that, where, as here, the issue is whether the jury
instructions accurately stated the law, our standard of review is de novo. [CITATION], ¶ 45.
¶ 26 Initially, the State argues that Mr. Hampton has forfeited this issue by failing to raise it in
his posttrial motion. See [CITATION], ¶ 32 (noting that, to preserve alleged
error for review, a defendant must both specifically object at trial and raise the issue in a posttrial
motion). Mr. Hampton argues that the issue was preserved for appeal, as counsel objected to the
instruction at trial, and the trial court’s error implicates his due process right to a fair trial and is
therefore constitutional and cannot be forfeited. See [CITATION], ¶ 16
(“constitutional issues that were properly raised at trial and may be raised later in a postconviction
petition” are not subject to forfeiture for failure to file a posttrial motion). Alternatively, he asks
us to review the issue for plain error or to conclude that his trial counsel provided ineffective
No. 1-23-0171
assistance by failing to preserve the issue.
¶ 27 Because we find that Mr. Brown’s claim of error succeeds on the basis of first prong plain-
error, we need not reach these alternative bases for avoiding forfeiture. Under the plain-error
doctrine, we may review a forfeited claim where a clear or obvious error occurred and (1) “the
evidence is so closely balanced that the error alone threatened to tip the scales of justice against
the defendant, regardless of the seriousness of the error” or (2) “the error is so serious that it
affected the fairness of the defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence.” (Internal quotation marks omitted.) [CITATION], ¶ 55; see also Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013) (noting that
substantial defects in jury instructions “are not waived by failure to make timely objections thereto
if the interests of justice require”). The first step in plain-error review is determining whether an
error occurred. [CITATION], ¶ 55.
¶ 28 Jury instructions are intended to help jurors properly apply the law to the evidence
presented and reach a correct verdict. [CITATION], ¶ 15, overruled on other grounds by [CITATION]. Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) provides that, when the Illinois
Pattern Jury Instructions (IPI) contain an applicable instruction, that instruction “shall be used,
unless the court determines that it does not accurately state the law.” [CITATION], ¶ 15. Where no applicable IPI instruction exists, the court has discretion to give a
nonpattern instruction. Id. The nonpattern instruction “should be simple, brief, impartial, and free
from argument.” Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013).
¶ 29 At the time of Mr. Hampton’s trial, the IPI did not contain an instruction defining AHC or
listing its elements. The court therefore had no choice but to give a nonpattern instruction
No. 1-23-0171
explaining what the State had to prove to convict Mr. Hampton of AHC. The instruction the court
gave provided that “[a] person commits the offense of [AHC] when he possesses any firearm after
previously being convicted of two qualifying felony offenses.”
¶ 30 In our view, this instruction did not accurately state the law because it failed to convey to
the jury that it had to find that Mr. Hampton knowingly had possession of the gun. Section 24-
1.7(a) of the Criminal Code of 2012 (720 ILCS 5/24-1.7(a) (West 2020)) provides that a person
commits AHC when he receives, sells, possesses, or transfers a firearm after having been convicted
of two or more qualifying offenses. The statute does not expressly provide that the defendant must
“knowingly” possess a firearm, nor does it require any other mental state. See id. But since this is
clearly not an absolute liability offense, a mental state must be inferred. See [CITATION], 2023 IL
128123, ¶¶ 20-22.
¶ 31 Our supreme court addressed this issue recently in [CITATION]. The court held there that,
where a defendant is charged with possession of a defaced firearm, the State is required to prove
the defendant’s knowledge of both the possession and the defacement. Id. ¶ 25. As the court
recognized, where a statute does not prescribe a mental state or create an absolute liability offense,
the applicable mental state is either intent, knowledge, or recklessness. Id. ¶ 22. As the [CITATION]
court further explained, where an offense is possessory in nature and the statute does not include
[SEGMENT 3]
a specific mental state, “knowledge is the appropriate mental state.” Id. Thus, as [CITATION] makes
clear, the elements of AHC include both (1) knowing possession of a firearm and (2) two or more
prior qualifying convictions. [CITATION], 2023 IL App (1st) 200917, ¶ 38 (citing [CITATION],
2023 IL 128123, ¶ 22); see also 720 ILCS 5/4-2 (West 2020) (noting that possession is a voluntary
act only if “the offender knowingly procured or received the thing possessed, or was aware of his
control thereof for a sufficient time to have been able to terminate his possession”).
====== End of Document ====== No. 1-23-0171
¶ 32 Here, the court’s jury instruction provided that a person commits AHC “when he possesses
any firearm after previously being convicted of two qualifying felony offenses.” The instruction
did not specify that the person must “knowingly” possess the firearm. Nor did it, or any other
instruction, otherwise indicate that knowledge was an element of AHC. The jury instructions
therefore failed to apprise the jury of an essential element of the charged offense.
¶ 33 The State argues that the instruction was sufficient because it tracked the statute, which
also does not provide a specific mental state. The State cites [CITATION], for the “general rule” that “instructing the jury in the elements of an offense as
the offense is defined in the statute is sufficient.” Mr. Hampton responds that [CITATION] rests on an
“outdated” statute, which has since been amended to explicitly include a mental state, and an
“antiquated” distinction between general and specific intent crimes. We need not decide in this
case whether [CITATION] is still good law since the court recognized there that “the failure to include
a mental state in the jury instructions is grounds to reverse a conviction where the record reveals
that the principal contested issue was [the] defendant’s mental state.” Id. at 833. Certainly, this
was the principal contested issue in this case.
¶ 34 The State also argues that the instructions, as a whole, accurately stated the law because
the instructions given to the jury defined possession as follows:
“Possession may be actual or constructive. A person has actual possession when he has
immediate and exclusive control over a thing. A person has constructive possession when
he lacks actual possession of a thing but he has both the power and the intention to exercise
control over a thing ***.” IPI Criminal 4th No. 4.16.
¶ 35 While we agree with the State that an “intention to exercise control” likely encompasses
knowledge, the instructions also allowed the jury to find Mr. Hampton guilty based on actual,
- 10 - No. 1-23-0171
rather than constructive, possession. Certainly, a defendant could have immediate and exclusive
control over a firearm without necessarily knowing that it is there. Where, as here, the jury could
have found actual or constructive possession, the fact that a finding of constructive possession
would encompass a finding of knowledge simply does not cure the deficiency in the AHC
instruction.
¶ 36 We must next determine whether the error in the instructions satisfies either prong of the
plain-error doctrine. We find there was plain error under the first, “closely balanced” prong. As
our supreme court has made clear, there is “plain error” where “the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error.” (Internal quotation marks omitted.) [CITATION], ¶ 55. To
determine whether evidence was closely balanced, we “evaluate the totality of the evidence and
conduct a qualitative, commonsense assessment of it within the context of the case.” [CITATION], ¶ 53. The defendant bears the burden of persuasion. [CITATION], ¶ 55.
¶ 37 The State and Mr. Hampton presented two competing versions of events, relative to
whether Mr. Hampton knew the firearm was under his seat in the vehicle. On one hand, Officer
Carreon testified that he observed Mr. Hampton lean toward the floor, Mr. Hampton appeared
nervous and repeatedly refused to exit the vehicle, and, when he did exit the vehicle, Officer
Carreon found the firearm underneath the driver’s seat where he had seen Mr. Hampton reach.
¶ 38 On the other hand, Mr. Hampton told Officer Carreon that there were no firearms in the
vehicle, the vehicle was his “girl’s,” the firearm was not visible until Officer Carreon leaned down
to search under the seat, and Mr. Hampton’s girlfriend Ms. Scott testified that both the firearm and
the vehicle belonged to her. Ms. Scott further testified that she had placed the firearm in the vehicle
- 11 - No. 1-23-0171
to remove it from a party with children. She was under the influence of alcohol at the time and did
not tell Mr. Hampton what she had done, and Mr. Hampton borrowed her vehicle to drop off a
friend. The parties stipulated that Ms. Scott had title to the vehicle and a valid FOID card. No
forensic evidence connected Mr. Hampton to the firearm.
¶ 39 The jury might have believed Ms. Scott, or it might have accepted the State’s circumstantial
evidence that Mr. Hampton had placed the gun under the seat. No extrinsic evidence corroborated
or contradicted either version of events. Alternatively, one or more jurors may have believed that
it did not matter whether Mr. Hampton knew the gun was there, since he was driving a car with a
gun under the driver’s seat, and this gave him immediate and exclusive control over the gun. Thus,
Mr. Hampton could have been found guilty based on actual possession and the incomplete and
therefore incorrect statement of the law set out in the AHC instruction.
¶ 40 During deliberations, the jurors sent a note asking whether the firearm was registered to
Ms. Scott or “registered in general.” About half an hour later, they sent another note indicating
that they were deadlocked. The court sent the jurors home for the night, and they deliberated for
several more hours the next day before finding Mr. Hampton guilty. The jurors’ notes indicate that
they were struggling to reach a consensus on whether the State had proven its case. See [CITATION].
¶ 41 The State points out both that the indictment charged Mr. Hampton with knowingly or
intentionally possessing a firearm and the court read that language to the prospective jurors, and
that the parties repeatedly indicated in their opening statements and closing arguments that the jury
would have to find Mr. Hampton knew of the firearm’s presence to find him guilty. The State
argues that this rendered any deficiency in the instructions harmless. But when the jury indicated
- 12 - No. 1-23-0171
it was deadlocked, the court instructed it to look again to the jury instructions. It also admonished
the jurors, as it always does, that it would instruct them on the law, that the law they should apply
to the case was stated in the jury instructions, and that the opening and closing arguments made
by the lawyers did not constitute evidence and should be “disregarded” if not based on the
evidence.
¶ 42 “Omitting an element of the offense from a jury instruction is harmless if the reviewing
court determines, beyond a reasonable doubt, that the error did not contribute to the verdict.”
[CITATION]; see [CITATION] (where evidence was closely balanced, State could not show that error in jury instruction was “harmless beyond a reasonable
doubt”). We are not convinced that the trial court’s refusal to instruct the jury on the principal
contested issue of Mr. Hampton’s knowledge, when the evidence was closely balanced and the
jury indicated that it was struggling to reach a verdict and was told to review the jury instructions,
was harmless.
¶ 43 We note that double jeopardy principles do not bar retrial, as viewing Officer Carreon’s
testimony and body-camera footage in the light most favorable to the State, the trial evidence was
sufficient for a rational juror to find that Mr. Hampton had knowledge that he possessed the gun
and was therefore guilty. See [CITATION], ¶¶ 20-21 (double jeopardy does
not bar retrial when conviction is overturned due to procedural error unless trial evidence, viewed
in light most favorable to the prosecution, was insufficient to sustain the conviction). Thus, we
remand this case for a new trial.
¶ 44 Finally, while the State does not expressly rely on this, both parties address the fact that,
subsequent to Mr. Hampton’s trial, IPI instructions were promulgated that now define AHC in the
- 13 - No. 1-23-0171
same way the trial court did in this case. See Illinois Pattern Jury Instructions, Criminal, Nos.
18.07B, 18.08B (approved Feb. 3, 2023) (hereinafter IPI Criminal Nos. 18.07B, 18.08B). The
instructions provide (1) that a person commits AHC when he receives, sells, possesses, or transfers
any firearm after having been convicted of two qualifying offenses and (2) that to sustain a charge
of AHC, the State has to prove (a) that the defendant received, sold, possessed, or transferred a
firearm and (b) that he had previously been convicted of two qualifying offenses. Id. Thus, the IPI
[SEGMENT 4]
instructions promulgated for AHC after Mr. Hampton’s trial do not include the knowledge
requirement we find necessary here.
¶ 45 The dissent finds this compelling. We agree with the dissent that there is a rebuttable
presumption that IPI instructions accurately reflect the law. Our supreme court rules require that
“the IPI Criminal instruction shall be used, unless the court determines that it does not accurately
state the law.” Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013). However, Rule 451(a) also provides that a
trial court may modify an IPI instruction where it does not accurately state the law. Id.; [CITATION]; see [CITATION], ¶ 50 (non-IPI
instruction should be used if IPI instruction is inaccurate). As our supreme court has recognized,
pattern jury instructions, while extremely important and valuable to the administration of justice
in this state, “are not exempt from challenge.” [CITATION]. Such instructions are not judicially approved in advance, and “[a]n instruction is
approved or rejected only after it has been judicially questioned and considered.” Id.
¶ 46 Our judicial examination of IPI Criminal Nos. 18.07B, 18.08B leads us to conclude that
they do not correctly state the law. As we explain above, the gun possession element of AHC can
only be met where a defendant has knowledge that he is in possession of a gun. While that is not
explicit in the AHC statute, as Mr. Hampton notes, all of the other IPI instructions in Rule 18,
- 14 - No. 1-23-0171
which focus exclusively on weapons offenses, do require proof of knowledge or intent to convict.
This includes IPI instructions for crimes that do not include a mental state in the relevant statute.
For example, Illinois Pattern Jury Instructions, Criminal, No. 18.17 (approved July 28, 2023)
(hereinafter IPI Criminal No. 18.17) provides: “A person commits the offense of unlawful
possession of [(firearms) (firearm ammunition) (handguns)] when he *** is under 18 years of age
and knowingly has in his possession a [(firearm of a size) (handgun)] which may be concealed
upon his person.” This, despite the fact that the corresponding statute provides only that “(a) A
person commits the offense of unlawful possession of firearms or firearm ammunition when:
(1) He is under 18 years of age and has in his possession any firearm of a size which may be
concealed upon the person[.]” 720 ILCS 5/24-3.1 (West 2020). The committee note to IPI Criminal
No. 18.17 makes this clear, stating: “Although Section 24-3.1 does not include a mental state, any
possession must be knowing.” (Emphasis added.) IPI Criminal No. 18.17, Committee Note. Thus,
regardless of whether the statute contains an express mental state, one is required by all of the IPI
instructions on weapons offenses, except for AHC.
¶ 47 Neither of the parties has ventured an explanation for the omission of a mental state in the
IPI instructions for this one offense. The notes on the IPI instructions, which are often helpful,
provide no explanation. In short, we are at a loss for why the new IPI instruction on AHC does not
include this knowledge requirement. It is our role, as a court, to determine whether the instruction
given here complied with the law, and we find that it did not, whether or not it corresponds with a
later-promulgated pattern jury instruction. Obviously, we urge the committee to address this as
soon as possible. We also express no opinion on whether, in future cases, the failure to give an
instruction that includes the knowledge requirement will require reversal based on the facts of the
case.
- 15 - No. 1-23-0171
¶ 48 IV. CONCLUSION
¶ 49 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County
and remand for a new trial.
¶ 50 Reversed and remanded.
¶ 51 JUSTICE NAVARRO, dissenting:
¶ 52 I agree with the majority’s analysis that rejects the State’s forfeiture argument that Mr.
Hampton failed to raise his claim in his posttrial motion.
¶ 53 However, I respectfully disagree with the majority’s holding that the instructions given in
this case did not accurately state the law. As has been discussed, at the time of Mr. Hampton’s
trial, the IPI did not contain an instruction for AHC. As a result, the court gave a non-IPI instruction
for AHC. The instructions the court gave were the same instructions later promulgated after the
conclusion of Mr. Hampton’s trial. See IPI Criminal Nos. 18.07B, 18.08B.
¶ 54 Trial courts are directed to use the IPI instructions whenever possible and to only use non-
IPI instructions when necessary. See Ill. S. Ct. R. 451 (eff. Apr. 8, 2013). In this instance, the court
used a non-IPI instruction for AHC that later became the IPI. See IPI Criminal Nos. 18.07B,
18.08B. While IPI instructions are not exempt from challenge, I do not believe that the presumption
that the IPI instructions accurately reflect the law was rebutted here where the jury was instructed
on both AHC and possession. See IPI Criminal 4th No. 4.16. I agree with the majority that Mr.
Hampton’s mental state was a contested issue at trial. However, the AHC instruction, given in
conjunction with the possession instruction and taken with the indictment, renders any deficiency
in the instructions in defining a mental state harmless. See [CITATION],
¶ 56 (an error in a jury instruction is harmless if it is demonstrated that the result of the trial would
- 16 - No. 1-23-0171
not have been different had the jury been properly instructed). Thus, I respectfully dissent.
- 17 -
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'people-v-wallace', which should be replaced with `[CITATION]`.
There were no court ruling citations detected in the provided text. No. 1-23-0171
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 22-CR-3;
the Hon. Peggy Chiampas, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Kara Kurland, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Retha Stotts, and Lynnette Cusack, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
- 18 -
```plaintext
IL App (1st) 220127
SECOND DIVISION
June 25, 2024
No. 1-22-0127
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) 21 CR 03687
)
CHANDLE HAWTHORNE, ) Honorable
) Timothy Joseph Joyce,
Defendant-Appellant. ) Judge Presiding.
_____________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice Howse and Justice McBride concurred in the judgment and opinion.
OPINION
¶1 In 2012, defendant Chandle Hawthorne was arrested for selling heroin. He was 17 years
old, prosecuted as an adult, and ultimately convicted of the manufacture or delivery of heroin, a
Class 2 felony. Defendant picked up another serious drug conviction in 2015.
¶2 Fast forward to January 2021. After firing a weapon at an unoccupied car multiple times,
defendant was charged with being an armed habitual criminal (AHC). A defendant violates the
AHC statute if he possesses, sells, or transfers a firearm and he has been “convicted” twice of
certain qualifying predicate offenses. See 720 ILCS 5/24-1.7(a) (West 2020).
¶3 The State alleged that defendant’s 2012 and 2015 convictions qualified as the required
predicate felonies for the AHC charge. After a bench trial, the court convicted defendant on the
AHC and other counts and sentenced him to more than eight years in prison.
``` No. 1-22-0127
¶4 On appeal, defendant claims the evidence was insufficient to convict him of the AHC
offense because one of the two predicate convictions—the 2012 one—should not be considered a
“conviction” at all. He relies on a change to the Juvenile Court Act in 2014 under which, today,
[SEGMENT 5]
his drug conviction at age 17 likely would have been a juvenile adjudication instead. As such,
says defendant, the language of the AHC statute does not permit his 2012 conviction to serve as
the required second predicate offense, and he is thus not guilty of AHC as a legal matter.
¶5 Some appellate decisions have agreed with defendant’s interpretation. See [CITATION]. Others
disagreed with Gray and reached the opposite conclusion—that a conviction under these
circumstances qualifies as a proper predicate conviction for an AHC charge. See [CITATION].
¶6 As we explain below, we side with these latter decisions and disagree with defendant’s
interpretation of the AHC statute. Defendant’s 2012 conviction was a proper predicate
conviction under the language of the statute. We thus affirm.
¶7 BACKGROUND
¶8 As the facts are undisputed and the question before us strictly legal, our discussion of the
facts is brief. Defendant was charged with various offenses, including AHC, for discharging a
weapon at an unoccupied car in January 2021. Two eyewitnesses and the responding police
officer testified at trial. That evidence aside, the parties agreed to several stipulations.
¶9 Relevant here, the parties stipulated that defendant had “a prior felony conviction for
(Note: The numbers and symbols such as `-2-` remain untouched.) No. 1-22-0127
manufacture and delivery of a controlled substance, which is a Class 1 offense, under case
number 15 CR 0234501, as well as manufacture and delivery of a controlled substance felony
conviction, Class 2, under case number 12 CR 2316301.” Defendant was born on February 7,
1995, and was 17 years old in 2012 when he was arrested in the No. 12-CR-2316301 case.
¶ 10 The court convicted defendant on the AHC count and others and sentenced him to eight
and a half years in prison. This appeal followed.
¶ 11 ANALYSIS
¶ 12 On appeal, defendant argues that the State failed to prove that he had two qualifying prior
convictions to sustain the AHC charge. Though properly couched as a challenge to the
sufficiency of the evidence, his argument is purely legal, a question of statutory construction, so
our review is de novo. See [CITATION].
¶ 13 The genesis of this argument was the appellate decision in [CITATION], which first held that a prior adult narcotics conviction that, under today’s laws,
likely would have been prosecuted as a juvenile adjudication, cannot serve as a predicate adult
conviction under the AHC statute. During briefing, our supreme court granted leave to appeal in
[CITATION], so at the State’s request and with defendant’s acquiescence, we stayed this appeal for
many months while we awaited the supreme court’s decision, which seemed all but certain to
resolve this question.
¶ 14 It did not. The supreme court reversed the appellate decision on the related but narrower
ground that Gray stipulated that his prior conviction, committed when he was 17, was a
qualifying predicate offense, thus conclusively waiving any claim that the State failed to prove
that element of the AHC charge. See [CITATION]. We lifted the stay and
now reach the merits of this appeal.
No. 1-22-0127
¶ 15 I
¶ 16 In its supplemental filing that we invited after the supreme court decided [CITATION], the State
takes a page from that decision, making the same argument here that prevailed there. But the
stipulation in [CITATION] was meaningfully different. [CITATION] stipulated that he “ ‘ha[d] two prior
qualifying felony convictions for the purposes of sustaining the charge of armed habitual
criminal.’ ” [CITATION], in other words, stipulated both to the fact of his convictions and their
legal impact under the AHC statute. See [CITATION] (“Defendant did not merely stipulate to the
admission of certified copies of his prior convictions or that he had been convicted of specified
felonies. *** Defendant’s stipulation established the facts that defendant had been convicted of
two prior felonies and that those felonies were qualifying felonies ***.” (Emphasis in original.)).
¶ 17 Here, as noted above, defendant stipulated only that he had “a prior felony conviction for
manufacture and delivery of a controlled substance, which is a Class 1 offense, under case
number 15 CR 0234501, as well as manufacture and delivery of a controlled substance felony
conviction, Class 2, under case number 12 CR 2316301.” He did not stipulate that these offenses
were qualifying predicate offenses under the AHC statute. To take a stipulation that was
obviously intended to do nothing more than relieve the State of the rudimentary task of
producing certified copies of his convictions—a courtesy to the prosecutor and the court—and
convert that into a waiver of a legal argument is a bridge too far.
¶ 18 II
¶ 19 The State also argues forfeiture—defendant did not raise this legal argument below. The
State reads the record correctly, but remember that, legal in nature though it may be, defendant’s
challenge is to the sufficiency of the evidence, just as it was characterized by the supreme court
in [CITATION]. See [CITATION]. A challenge to the sufficiency of the evidence cannot be forfeited.
No. 1-22-0127
[CITATION]
¶ 20 III
¶ 21 To the merits. Defendant’s argument concerns the language of the AHC statute and, to a
lesser extent, a provision of the Juvenile Court Act. Our principal goal in interpreting a statute is
to give effect to the legislature’s intent, expressed by the plain and ordinary meaning of the
statutory language. [CITATION] We review the statute as a whole,
giving effect to each provision if possible, and seek to avoid an interpretation that would lead to
absurd or unjust results. Id. We will not read into a statute exceptions, conditions, or limitations
not expressed by the legislature. [CITATION]
¶ 22 In 2012, when defendant committed the predicate offense in question here, section 5-120
of the Juvenile Court Act provided that, with certain exceptions not relevant here, “no minor who
was under 17 years of age at the time of the alleged offense may be prosecuted under the
criminal laws of this State.” 705 ILCS 405/5-120 (West 2012). So at the time defendant was
charged with delivery of heroin in 2012, the juvenile court had exclusive jurisdiction to
adjudicate that offense if committed by persons age 16 or younger. Id. Defendant, as noted, was
not “under 17” in 2012—he was 17—so this statute did not apply to him, and he was tried and
convicted as an adult.
¶ 23 In 2014, the General Assembly raised the age for exclusive juvenile jurisdiction from 16
to 17 years of age, again with certain exceptions not relevant here. See Pub. Act 98-61, § 5 (eff.
Jan. 1, 2014) (amending 705 ILCS 405/5-120, 5-130). With this change, a 17-year-old who
committed the same crime as defendant did in 2012, but who did so on or after January 1, 2014,
would presumptively be subject to juvenile-court jurisdiction, where he would not be
“convicted” of a criminal offense but, at worst, adjudicated delinquent.
No. 1-22-0127
¶ 24 Notably, Public Act 98-61 included a saving clause, providing that this change to
juvenile-court jurisdiction “appl[ies] to violations or attempted violations committed on or after
the effective date of this amendatory Act.” Id. (amending 705 ILCS 405/5-120). And our
supreme court held that a 17-year-old who committed criminal sexual assault and abuse before
January 1, 2014 (specifically, June 2013) could still be tried as an adult under the previous
version of the law, notwithstanding that his prosecution took place largely after January 2014,
without violating equal protection. [CITATION], ¶ 10.
¶ 25 Still, there is no question that, had defendant committed his 2012 predicate offense in
January 2014 or thereafter, he quite possibly would not have been tried, much less convicted, in
adult court (absent a successful attempt by the State at a discretionary transfer, which we will
discuss shortly). At most, he likely would have received an adjudication of delinquency in
juvenile court. This distinction is critical because adjudications of delinquency are not
“convictions” under Illinois law. [CITATION].
¶ 26 With this in mind, the language of the AHC statute follows. We have our reasons for
printing the substantive provision in full, as we discuss later, but the most relevant provisions are
subsections (a) and (a)(3):
“(a) A person commits the offense of being an armed habitual criminal if he or
she receives, sells, possesses, or transfers any firearm after having been convicted a total
of 2 or more times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a
[SEGMENT 6]
weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated
vehicular hijacking; aggravated battery of a child as described in Section 12-4.3
No. 1-22-0127
or subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation;
gunrunning; home invasion; or aggravated battery with a firearm as described in
Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) Any violation of the Illinois Controlled Substances Act or the Cannabis
Control Act that is punishable as a Class 3 felony or higher.” (Emphases added.)
ILCS 5/24-1.7 (West 2020).
¶ 27 Defendant focuses on the phrase “is punishable” in subsection (a)(3). As the phrase is
worded in the present tense, defendant says that the predicate drug offense must be punishable as
a Class 3 felony as of the date the AHC offense was committed, not back when the conviction
occurred. Here, defendant’s alleged AHC offense took place in 2021. He argues that, for 17-
year-olds in 2021, like defendant was in 2012, this predicate drug offense is no longer
“punishable as a Class 3 felony or higher;” now it would be handled in juvenile court.
¶ 28 This was the reasoning of the appellate decision in [CITATION], which held that defendant’s
2002 conviction for narcotics delivery could not serve as a predicate offense for an AHC
violation allegedly committed in 2016. See [CITATION], ¶ 16 (“the
prosecution showed that Gray had two prior felony convictions on his record, but for the
conviction for delivery of narcotics, the prosecution did not show that the conviction was for
conduct that ‘is punishable’ as a felony as of the date of the [AHC offense] in 2016”).
¶ 29 To be sure, the phrase “is punishable” refers to the present state of affairs. The AHC
statute looks to the offense level of that prior conviction as of the date the AHC offense was
allegedly committed. But it does not follow that we would adopt defendant’s overall
interpretation of the statute. We do not, for several reasons.
¶ 30 First, defendant’s analysis does not account for earlier language in subsection (a),
No. 1-22-0127
requiring that the State prove that defendant commit the firearm-related offense “after having
been convicted” two or more times of a qualifying offense. 720 ILCS 5/24-1.7(a) (West 2020).
“Having been convicted” is written in the present perfect tense, denoting an action that occurred
in the past and continues into the present. See [CITATION].
That describes defendant’s 2012 criminal disposition precisely. He was convicted of the
predicate offense in 2012, and it remains a conviction today. Again, the change to the Juvenile
Court Act in 2014 made clear that its amendment was prospective only, and our supreme court
has interpreted it as such. See [CITATION]. Defendant could not (and does
not) deny that he remains convicted of that 2012 offense today. So in literal terms, defendant’s
2012 conviction fits squarely into the “having been convicted” language.
¶ 31 Second, defendant makes too much of the “is punishable” language in subsection (a)(3).
It is clear to us that the General Assembly, in the AHC statute, wanted to punish individuals who
possess or transfer firearms after having been twice convicted not of just any crime but of
offenses that were of sufficient gravity—in subsection (a)(3), drug crimes of a certain offense
level. The offense level is how the legislature designates the seriousness of the crime. The use of
the present tense in the AHC statute allows the General Assembly to move certain drug crimes in
and out of the list of predicate crimes as it adjusts those offense levels over time (or legalizes the
behavior entirely), as social mores shift and public policy changes. (Just review the changes in
the laws governing the use of cannabis, one of the predicate statutes in subsection (a)(3), over the
last several years for an example.)
¶ 32 The “is punishable” language, in other words, describes the offense itself. As a matter of
grammar, it is undeniable that “is punishable” modifies the “violation” of the two drug statutes in
subsection (a)(3), the Illinois Controlled Substances Act and the Cannabis Control Act. And as a
No. 1-22-0127
literal matter, the offense for which defendant was convicted in 2012 is, today, as it was in 2021
when defendant committed the AHC offense, and as it has been consistently since 2012 and long
before, “punishable as a Class 3 felony or higher.”
¶ 33 Which means that defendant was “convicted” of heroin delivery in 2012, and that drug
offense “is punishable as a Class 3 felony or higher.” The AHC statute is satisfied.
¶ 34 Our third reason for disagreeing with defendant’s reasoning, and that of the Gray
appellate decision, is that there is no guarantee, even after January 1, 2014, that a 17-year-old
charged with delivery of heroin would have been subject to a disposition in juvenile court. A 17-
year-old charged with this offense in 2021 (the year defendant committed the firearm violation
prompting the AHC charge) could have been subject to a discretionary transfer to adult court.
See 705 ILCS 405/5-805(3) (West 2020) (permitting discretionary transfer of juveniles age 13 or
older to adult court, on motion of State, if juvenile court finds probable cause to believe
allegations are true and “it is not in the best interests of the public to proceed” in juvenile court).
¶ 35 We agree with another decision that departed from Gray that “it is speculative to assume
defendant would not have been subject to a discretionary transfer” under section 5-805(3). See
[CITATION], ¶ 38. A discretionary transfer was not even an option in
2012 for defendant, who was 17 and subject to adult-court jurisdiction without question. We
cannot simply assume as fact that defendant here, had he been subject to the amendment to the
Juvenile Court Act on or after January 1, 2014, would have received a juvenile-court disposition
as opposed to a criminal conviction.
¶ 36 The final reason we disagree with defendant’s interpretation is that it would lead to odd
results when we consider the AHC statute as a whole, as we must. [CITATION], ¶ 20.
Consider the subsections that precede subsection (a)(3). Subsection (a)(1) lists as a predicate
No. 1-22-0127
crime “a forcible felony as defined in Section 2-8 of this Code.” 720 ILCS 5/24-1.7(a)(1) (West
2020). No reference to an offense level, much less to the offender’s age or status as an adult or
juvenile. Either the forcible felony is listed in section 2-8 of the Criminal Code of 2012 or it
isn’t. See 720 ILCS 5/2-8 (West 2020).
¶ 37 But under defendant’s theory, which focuses on subsection (a)(3)’s language, not on the
“having been convicted” language at the outset of section (a), subsection (a)(1) would be
unaffected by the change to the Juvenile Court Act’s jurisdiction in 2014. A 17-year-old who
violates the Controlled Substances Act at a sufficiently high offense level can avoid having that
conviction used as a predicate under subsection (a)(3), but a 17-year-old who commits robbery
or burglary (both forcible felonies (see id.)) cannot have his conviction disregarded under
subsection (a)(1)?
¶ 38 The same is true of subsection (a)(2), which lists a number of predicate offenses without
any reference to offense level or age or status of the offender, including various gradations of
unlawful use of a weapon, home invasion, vehicular hijacking, aggravated battery, intimidation,
and the like. See id. § 24-1.7(a)(2). Once again, under defendant’s theory, those pre-2014
convictions when the defendant was 17 would count as predicates, but drug convictions under
subsection (a)(3) would not.
¶ 39 Under defendant’s theory, then, when confronted with prior convictions for offenses
committed when a defendant was a juvenile, which as of 2014 likely would be prosecuted in
juvenile court, subsection (a)(3) is all but erased from existence, but subsections (a)(1) and (a)(2)
remain entirely intact. That is not a reasonable or credible interpretation of the AHC statute.
¶ 40 Indeed, we have already seen this incongruity play out. This court considered this very
“anomaly” between subsections (a)(2) and (a)(3) in [CITATION].
- 10 - No. 1-22-0127
[SEGMENT 7]
201034-U, ¶ 20. Johnson was convicted of AHC based on a predicate conviction for home
invasion under subsection (a)(2) of the AHC statute. [CITATION] ¶ 17. Johnson was 15 years old when he
committed that home invasion in 2002. [CITATION] Johnson argued, based on the appellate decision in
[CITATION], that his 2002 home invasion conviction should not be used as a predicate conviction for
AHC, because he would have been prosecuted as a juvenile had he committed it today as a 15-
year-old. [CITATION] ¶ 14. The court in [CITATION] noted the very disharmony we discussed above:
“The language of subsection (a)(2) differs significantly from the language of
subsection (a)(3). Subsection (a)(2) requires only proof that the defendant possessed a
firearm “after having been convicted *** [of] home invasion” and a second qualifying
offense. *** Even though a 15-year-old charged with the same conduct would now
remain in the jurisdiction of the juvenile court, Johnson’s conviction qualifies as a
predicate conviction under the literal terms of the armed habitual criminal statute.
Nonetheless, we agree with Johnson that this result creates an anomaly. If the
current treatment of juveniles for conduct that violates narcotics statutes [under (a)(3)]
makes a prior conviction unavailable as grounds for an armed habitual criminal charge,
why should the current treatment of juveniles for conduct that constitutes home invasion,
vehicular hijacking, or unlawful use of a weapon by a felon [under (a)(2)] make no
difference for such a charge?” (Emphasis added.) [CITATION] ¶¶ 19-20.
¶ 41 We agree that it makes no sense to treat subsections (a)(2) and (a)(3) differently, absent
some signal from the legislature that nobody has cited and we cannot locate. But while the court
in [CITATION] settled this anomaly by doubling down on the reasoning in [CITATION] and applying it to
subsection (a)(2), thereby reversing Johnson’s AHC conviction ([CITATION] ¶ 24), even after recognizing
that this outcome was inconsistent with the “literal terms” of subsection (a)(2) ([CITATION] ¶ 19), we
- 11 - No. 1-22-0127
would respectfully highlight this incongruity to show the flaw in the reasoning of the Gray
appellate decision.
¶ 42 The better route, the one dictated by the plain language of the AHC statute, the one
avoiding speculation, and the one avoiding incongruous results among the subsections of section
(a), is to hold that defendant’s conviction for heroin delivery in 2012 qualifies as a predicate
offense under subsection (a)(3) of the AHC statute, notwithstanding that defendant might have
been tried as a juvenile had this offense been committed in 2021, when defendant committed the
firearm offense spawning the AHC charge.
¶ 43 We find no error in the use of defendant’s 2012 conviction for heroin delivery as one of
the two predicate offenses forming the AHC charge. Defendant was properly convicted of the
AHC charge.
¶ 44 CONCLUSION
¶ 45 The judgment of the circuit court is affirmed.
¶ 46 Affirmed.
- 12 -
====== No. 1-22-0127
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 21-CR-03687;
the Hon. Timothy Joseph Joyce, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Benjamin Wimmer, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Tasha-Marie Kelly, and Caitlin Chenus, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
- 13 -
2024 IL App (1st) 220827-U
THIRD DIVISION
June 20, 2024
No. 1-22-0827
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 19 CR 10131
)
ALYASA BROWN, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge Presiding.
____________________________________________________________________________
PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Lampkin and D.B. Walker concurred in the judgment.
ORDER
¶1 Held: Affirming defendant’s conviction for armed habitual criminal where his trial
counsel’s stipulation as to his prior convictions did not constitute ineffective assistance.
¶2 Following a bench trial, defendant Alyasa Brown was convicted of being an armed
habitual criminal (AHC), i.e., possessing a firearm after having been convicted of two prior
qualifying offenses (720 ILCS 5/24-1.7 (West 2020)), and he was sentenced to nine years in
prison. Defendant challenges his conviction, arguing that neither of his prior convictions for two
armed robberies—each committed when he was 16 years old—qualified as a “conviction” under
the AHC statute based on an amendment to the jurisdictional provisions of the Juvenile Court
Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2016)), which became 1-22-0827
effective in 2016. Citing the recent decision of the Illinois Supreme Court in [CITATION],
defendant contends that his trial counsel was ineffective for stipulating that he had qualifying convictions. For the reasons stated herein, we
affirm.
¶3 BACKGROUND
¶4 Defendant was arrested in 2008 and charged with armed robbery while armed with a
firearm (720 ILCS 5/18-2(a)(2) (West 2010)) and other offenses in two separate cases (08 CR
12767 and 08 CR 12768). At the time of each incident, defendant was 16 years old. He was
convicted of armed robbery in each case and sentenced to concurrent prison terms of 21 years.
Following his release from prison, defendant was arrested after an incident on July 3, 2019.
¶5 Defendant was in the passenger seat of a vehicle which was pulled over by an Illinois
State Trooper in the early morning hours of July 3, 2019, after the trooper noticed that the driver
was not wearing a seatbelt. Defendant owned the vehicle; the trooper confirmed that defendant
had a valid driver’s license and insurance. Upon detecting the odor of marijuana and observing
cannabis residue on defendant’s lap, the trooper directed him to exit from the vehicle and
performed a pat-down, which did not reveal any contraband on defendant’s person. When
questioned by the trooper, defendant indicated that there was a marijuana “blunt” in the vehicle.
The trooper then examined the vehicle and recovered a loaded firearm from under the passenger
seat. Defendant did not have a Firearm Owner’s Identification card or a concealed carry license.
¶6 Defendant was indicted in a five-count complaint for AHC (720 ILCS 5/24-1.7 (West
2020)), two counts of unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1
(West 2020)), and two counts of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6 (West
2020)). The AHC count referenced defendant’s two prior armed robbery convictions related to
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the 2008 incidents. After defendant filed a motion to quash arrest and suppress evidence—which
the trial court denied—the matter proceeded to a bench trial on the AHC count. 1
¶7 The trooper who effectuated the traffic stop testified, in part, regarding his recovery of
the handgun; a certified abstract of the vehicle registration was also submitted to the trial court.
The parties stipulated that defendant “has two qualifying felony convictions.”2 After the State
rested, the trial court denied defendant’s motion for a directed finding. Defendant did not testify
or otherwise present evidence. The trial court found defendant guilty of AHC.
¶8 Defendant moved to vacate the judgment and for a new trial, arguing that his proximity to
the firearm was insufficient to establish constructive possession for purposes of the AHC statute.
The trial court denied the motion and sentenced defendant to 9 years in prison and 18 months of
mandatory supervised release. His motion to reconsider sentence was also denied, and
defendant timely filed this direct appeal.
¶9 ANALYSIS
¶ 10 On appeal, defendant initially challenged the sufficiency of the evidence, i.e., he argued
that the State failed to prove him guilty of AHC as the prior offenses on which it relied were not
qualifying offenses. Defendant’s argument is premised on changes to the Juvenile Court Act.
[SEGMENT 8]
¶ 11 Juvenile Court Act
¶ 12 Article 5 of the Juvenile Court Act addresses delinquent minors. Section 5-120 states
that “no minor who was under 18 years of age at the time of the alleged offense may be
prosecuted under the criminal laws of this State,” except as provided in specified provisions of
The other counts were nol-prossed.
The assistant State’s attorney stated, in part, that “there is a stipulation by and between the
parties in this case that the defendant *** has two qualifying felony convictions.” Defense counsel then
stated, “So stipulated for the purpose of the charges in this case.” The trial court indicated that the
stipulation was allowed and moved into evidence.
1-22-0827
the Juvenile Court Act, including section 5-130. 705 ILCS 405/5-120 (West 2022). 3 At the time
that defendant committed the armed robberies at age 16 in 2008, section 5-130—which addresses
“[e]xcluded jurisdiction”—provided that the definition of a delinquent minor “shall not apply to
any minor who at the time of an offense was at least 15 years of age” and who was charged with
certain enumerated crimes, including “armed robbery when the armed robbery was committed
with a firearm.” 705 ILCS 405/5-130 (West 2008). As defendant accurately observes, the law in
effect in 2008 “required that he be automatically prosecuted in adult criminal court.” An
amendment to section 5-130 which became effective in 2016, however, removed armed robbery
as a basis for exclusion from the jurisdiction of the juvenile court. Compare [CITATION] and [CITATION].4
¶ 13 Parties’ Arguments on Appeal
¶ 14 Given that the 2016 amendment removed armed robbery from the list of offenses which
served as bases for adult criminal prosecution, defendant maintained that his convictions for
armed robberies committed in 2008 when he was 16 years old would not be considered
“convictions” and could not serve as predicate offenses for his AHC offense in 2019.
He acknowledged that his trial counsel had stipulated that his armed robbery convictions were
qualifying convictions under the AHC statute. Defendant argued, however, that even if his
challenge to the sufficiency of the evidence was forfeited, his counsel was ineffective for
entering the stipulation and for failing to contest the use of the prior offenses.
We note that an amendment to the Juvenile Court Act which became effective in 2014 changed
the age for juvenile court jurisdiction from 17 to 18, i.e., providing that 17-year-olds generally could no
longer be prosecuted under the criminal laws of Illinois. Compare [CITATION] and [CITATION].
The amendment also raised the age from 15 years old to 16 years old for those individuals
excluded from the jurisdiction of the juvenile court. Compare [CITATION] and [CITATION].
1-22-0827
¶ 15 In its appellee brief, the State responded that defendant was properly convicted of AHC,
as he possessed a firearm and stipulated to his qualifying prior convictions. According to the
State, the fact that defendant was 16 years old at the time of the armed robberies had no impact
on their use as predicate offenses for the AHC offense. The State alternatively argued that the
appeal should be held in abeyance while the Illinois Supreme Court “considers this precise issue”
in [CITATION]. After the completion
of briefing, we entered an order staying this appeal pending a dispositive ruling in [CITATION].
¶ 16 On March 21, 2024, our supreme court issued an opinion in [CITATION], which was
subsequently modified upon denial of rehearing. [CITATION]. The
defendant in [CITATION] had argued that the State failed to prove beyond a reasonable doubt that he
had the necessary predicate convictions for an AHC conviction as he was 17 years old at the time
of one of the predicate offenses alleged in the indictment. Id. ¶ 14. The appellate court reversed
the defendant’s AHC conviction, concluding that his earlier conviction would now be deemed a
delinquency adjudication in juvenile court, based on an amendment to the Juvenile Court Act.
Id. In reversing the judgment of the appellate court and remanding for further proceedings, the
Illinois Supreme Court concluded that defense counsel’s stipulation to the prior qualifying
offenses was “determinative of the matter,” i.e., the stipulation provided sufficient evidence to
convict the defendant of being an AHC. Id. ¶¶ 26, 27, 34. Although the defendant could not
directly attack the sufficiency of the evidence, our supreme court found that he could argue that
his counsel’s agreement to the stipulation constituted ineffective assistance of counsel. Id. ¶ 29.
Our supreme court concluded, however, that the defendant could not prevail on a claim of
ineffective assistance, as he conceded in his appellate brief that he had another adult felony
conviction which could serve as a qualifying offense under the AHC statute. Id. ¶ 32.
```plaintext
1-22-0827
¶ 17 Following the Illinois Supreme Court decision in Gray, we granted defendant’s request
for supplemental briefing to address the impact of the decision on this case. In his supplemental
briefs, defendant conceded that his trial counsel stipulated that his prior convictions were
qualifying offenses, and thus he could not challenge that evidence on appeal based on Gray.
Defendant argues, however, that his attorney was ineffective for stipulating to an element of
AHC. According to defendant, his attorney’s decision to stipulate was “particularly illogical”
given that defendant did not have a jury trial and thus was not concerned about jurors convicting
him based on his prior convictions. The State maintains that under the plain language of the
AHC statute, defendant’s armed robbery convictions in adult court were qualifying prior
convictions, and therefore his claim of ineffective assistance must fail.
¶ 18 Ineffective Assistance of Counsel
¶ 19 An ineffective assistance of counsel claim is subject to the standard set forth in Strickland
v. Washington, [CITATION]. “Under
Strickland, a defendant must establish that counsel’s performance fell below an objective
standard of reasonableness and the defendant was prejudiced by counsel’s substandard
performance.” [CITATION]. See [CITATION] (stating that “[a] defendant, to establish deficiency, must prove that counsel’s
performance, as judged by an objective standard of competence under prevailing professional
norms, was so deficient that counsel was not functioning as the ‘counsel’ guaranteed by the sixth
amendment”).
¶ 20 Defendant asserts that his attorney was ineffective for stipulating to an element of AHC,
i.e., his qualifying offenses. The State maintains that defense counsel did not perform deficiently
and defendant was not prejudiced, since the admission of his armed robbery convictions as
``` 1-22-0827
predicate convictions for AHC was proper. As discussed below, if the State’s interpretation of
the AHC statute is correct, then defendant’s ineffective assistance claim cannot succeed.
¶ 21 Statutory Interpretation Principles
¶ 22 Our analysis requires that we interpret the AHC statute. “The fundamental rule of
statutory interpretation is to ascertain and give effect to the legislature’s intent, and the best
indicator of that intent is the statutory language, given its plain and ordinary meaning.” [CITATION]. The statute must be considered as a whole; we must construe
words and phrases “relative to other pertinent statutory provisions,” not in isolation. Id. “Unless
the language of a statute is ambiguous, a court should not resort to further aids of construction
and must apply the statute as written.” [CITATION]. The construction
of a statute is a question of law subject to de novo review (id. ¶ 17), meaning that we perform the
same analysis that a trial court would perform. [CITATION].
¶ 23 The AHC Statute
¶ 24 The AHC statute provides, in pertinent part, that a person commits the offense of being
an armed habitual criminal if he possesses any firearm “after having been convicted a total of 2
or more times of any combination of the following offenses.” 720 ILCS 5/24-1.7(a) (West
2020). The statute then sets forth three enumerated categories of offenses, including subsection
(a)(1): “a forcible felony as defined in Section 2-8 of this Code.” Id. § 1.7(a)(1). Armed
robbery is a forcible felony under section 2-8. 720 ILCS 5/2-8 (West 2020) (listing robbery as
an enumerated forcible felony; providing that “any other felony which involves the use or threat
of physical force or violence against any individual” is a forcible felony). See also [CITATION], ¶ 32, pet. for leave to appeal allowed, No. 130173 (May 29,
1-22-0827
2024) (noting that armed robbery with a firearm is a forcible felony under the AHC statute).
¶ 25 In this case, defendant was found to have possessed a firearm after having been convicted
twice of armed robbery. 720 ILCS 5/24-1.7(a) (West 2020). Defendant asserts that if his armed
robbery offenses had occurred at the time of his arrest for AHC, they would have resulted in
[SEGMENT 9]
juvenile delinquency adjudications and not convictions. As Illinois courts have consistently
recognized, a juvenile delinquency adjudication is not a conviction ([CITATION]).
¶ 26 Nothing in the plain language of the AHC statute, however, indicates defendant’s prior
convictions should be recharacterized as juvenile delinquency adjudications. E.g., [CITATION] (noting that the “having been convicted” language in
the AHC statute is the grammatical equivalent of “if he/she was convicted” (emphasis in
original)). See also [CITATION] (holding that the
defendant’s conviction as a juvenile in adult court served as a conviction). We are not free to
read into a statute “exceptions, limitations, or conditions the legislature did not express.” [CITATION]
¶ 27 We further observe that the Illinois Appellate Court has repeatedly rejected defendant’s
reasoning. E.g., [CITATION] (finding that the plain language of the
AHC statute references past convictions for predicate offenses; concluding “that defendant was
‘convicted’ of armed robbery in 2008 (which remained a forcible felony in 2019), and this was
sufficient to serve as a predicate offense to being an armed habitual criminal”); [CITATION]
(stating that “all that matters is that defendant had a
conviction, and that conviction was for an offense described in subsection (a)(1) at the time
defendant committed the underlying conduct which resulted in the armed habitual criminal
1-22-0827
charge”). See also [CITATION] ¶ 18 (concluding that if a defendant
was convicted of a forcible felony before committing the act giving rise to the AHC charge, “that
conviction qualifies,” as the statute “expresses no exception, limitation, or condition such that
some forcible felony convictions qualify as predicate offenses and others do not”); [CITATION] ¶ 20 (agreeing with Wallace and Irrelevant that, for
purposes of AHC, “all that matters is that the defendant has a prior conviction for one of the
specified offenses”).
¶ 28 Defendant contends that we should apply the reasoning of [CITATION] ¶ 48, wherein the appellate court found that the State had not proven that the
defendant “had two qualifying adult convictions under the law in effect at the time of his armed
habitual criminal offense.” We decline to do so, as our supreme court recently entered a
supervisory order which directed the appellate court to vacate its judgment and to consider the
effect of Gray “on the issue of whether the State proved beyond a reasonable doubt that
defendant had the requisite predicate adult convictions necessary to sustain his armed habitual
criminal conviction and determine if a different result is warranted.” [CITATION] (supervisory order).
¶ 29 In any event, we disagree with the Dawson court’s suggestion that the “as defined”
language in section (a)(1) of the AHC statute (“a forcible felony as defined in Section 2-8 of the
Code”) means that the predicate offenses would have to be currently punishable in adult criminal
court. See [CITATION] ¶¶ 47-48. We instead view the proper analysis
as whether the predicate offense is a forcible felony as defined in section 2-8. E.g., [CITATION] ¶ 21 (stating that “[t]he present tense aspect of subsection (a)(1) is
concerned only with whether the offense of conviction remains defined as a forcible felony under
1-22-0827
the Criminal Code of 2012 as amended”). In this case, armed robbery has remained a forcible
felony at all relevant times.
¶ 30 We therefore find that defendant’s convictions for armed robberies committed in 2008
remain adult criminal convictions, not juvenile adjudications. See id. ¶ 20 (rejecting defendant’s
“attempts to avoid this reality by having us consider a hypothetical and counterfactual robbery,
as though it were committed in 2020 instead of 2013”). Even without defense counsel’s
stipulation, the trial court would have correctly allowed the admission of defendant’s two prior
armed robbery convictions as predicate convictions for his current offense of AHC. As the
admission of defendant’s prior convictions as predicate convictions for AHC was proper, we
conclude that defense counsel’s performance was not deficient, and defendant was not
prejudiced. See [CITATION], 2023 IL 128413, ¶ 50 (discussing the performance and prejudice prongs
of Strickland). See also [CITATION], 2022 IL 127680, ¶ 60 (noting that a “defendant’s
trial attorney cannot be considered ineffective for failing to raise or pursue what would have
been a meritless motion or objection”). For the foregoing reasons, defendant’s claim of
ineffective assistance must fail.
¶ 31 CONCLUSION
¶ 32 The judgment of the circuit court of Cook County is affirmed in its entirety.
¶ 33 Affirmed.
[CITATION]
No. 1-23-0252
Order filed June 17, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 125
)
QUINTIN ATKINS, ) Honorable
) Thomas J. Byrne,
Defendant-Appellant. ) Judge, presiding.
JUSTICE COGHLAN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for unlawful use of a weapon by a felon (UUWF) is
affirmed over his contentions that an armed robbery committed when he was 16
years old may not serve as a predicate felony for UUWF, that the trial court
misapprehended the relevant sentencing range, and that the trial court abused its
discretion by not departing from sentencing guidelines.
¶2 In a blind plea, defendant Quintin Atkins pled guilty to one count of unlawful use of a
weapon by a felon (UUWF) and two counts of aggravated unlawful use of a weapon (AUUW).
After merging the AUUW counts into the UUWF count, the trial court imposed a sentence of seven No. 1-23-0252
years in prison. On appeal, defendant contends that the trial court erred by relying on an offense
that occurred when he was 16 years old to “convict” him both of UUWF and of “Class 2” AUUW.
Defendant further contends that the trial court misapprehended the sentencing range when it
determined there was a seven-year presumptive minimum for UUWF. Finally, defendant contends
that the trial court abused its discretion when it failed to consider that mitigating circumstances
warranted imposing a sentence below seven years. For the reasons that follow, we affirm.
¶3 Defendant’s conviction arose from an incident that occurred on November 28, 2020, in
Chicago. According to the stipulated factual basis for defendant’s plea, on that date, officers
responded to a call of shots fired. When they arrived on the scene, an individual pointed at
defendant and said he had a firearm in his waistband. The officers approached defendant for a field
interview. Defendant indicated that he had a gun and that he “took the gun off of his friend, who
was just shot.” The officers recovered a loaded handgun from defendant’s waistband and placed
him into custody.
¶4 Following arrest, defendant was charged by indictment with one count each of armed
habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2020)) (count I), UUWF (720 ILCS 5/24-
1.1(a) (West 2020)) (count II), AUUW premised on not possessing a concealed carry license (720
ILCS 5/24-1.6(a)(1), (3)(A-5) (West 2020)) (count III), and AUUW premised on not possessing a
firearm owner’s identification card (720 ILCS 5/24-1.6(a)(1), (3)(C) (West 2020)) (count IV). Two
prior convictions—manufacture or delivery of a controlled substance in case No. [CITATION]
and armed robbery in case No. [CITATION]—were listed as the predicate offenses for AHC.
The armed robbery conviction in case No. [CITATION] was listed as the single predicate offense
No. 1-23-0252
for UUWF and, in both counts charging AUUW, as the basis for the State seeking to sentence
defendant as a Class 2 offender.
¶5 Defendant filed a motion to dismiss count I, arguing that, because he was 16 years old
when he committed armed robbery in 2002, that crime could not be used as a predicate offense for
AHC. Following argument on the motion, the trial court dismissed count I. Counsel asked for a
continuance so that defendant could consider an offer from the State.
[SEGMENT 10]
¶6 At the next court date, defendant’s attorney withdrew, and the trial court allowed defendant
to proceed pro se. Defendant filed a motion to dismiss the remaining counts of his indictment,
arguing that, because he was a juvenile in 2002, the State could not use his 2002 armed robbery as
a predicate offense for the charges of UUWF and AUUW. The trial court denied the motion,
reasoning that, although defendant was a juvenile in 2002, he was prosecuted as an adult.
¶7 After denying defendant’s motion, the trial court informed defendant that he needed to
answer the State’s motion for discovery so as to put the State on notice if he had any affirmative
defenses. Defendant responded, “Basically, on the elected matter, it is on camera. I am already
pleading guilty to it. The gun is off a dead man’s body. I had to defend myself.” Defendant and
the court then engaged in the following colloquy:
“THE COURT: Why are you setting this for trial if you are pleading guilty?
THE DEFENDANT: I am asking the State. I am ready to plead guilty on that charge
right now.
THE COURT: As to counts two, three and four on 21 CR 00125, how do you plead
to those counts?
THE DEFENDANT: I plead guilty, Judge.
No. 1-23-0252
THE COURT: All right. Did you execute a jury waiver by any chance?
THE DEFENDANT: No. I understand they are supposed to do a presentence
investigation report, Judge.
THE COURT: I will make sure we get a presentence investigation report done.
They are going to come and interview you. You understand that?
THE DEFENDANT: Yes.
Can I also offer this into evidence as adult criminal history that classifies me as a
Class III for this case, the elected matter?
THE COURT: We will do that at sentencing.
THE DEFENDANT: Okay. Thank you.”
¶8 The trial court read the charges aloud. Among other things, the court stated that the charge
of UUWF was “punishable by a penitentiary sentence from 3 to 14 years.” Defendant indicated
that he understood each charge and its possible penalties and was pleading guilty. However, he
also stated, “Judge, I am pleading guilty, but I don’t understand how [the State] is using a juvenile
armed robbery to enhance.” The trial court answered, “You can look at that. I am asking how do
you plead.” Defendant replied that he was pleading guilty. He also executed a jury waiver.
¶9 The trial court admonished defendant regarding the rights he was giving up by pleading
guilty. The parties stipulated to the factual basis for the plea, as set forth above. The stipulation
also included the following statement: “The defendant is a convicted felon *** under 02 CR
1998201.” The trial court found that defendant’s plea was made knowingly and voluntarily and
that a factual basis existed for the plea. The court entered a finding of guilty on counts II, III, and
IV, and ordered a presentence investigation (PSI) report.
No. 1-23-0252
¶ 10 The State asked the court to “briefly pass the case” so that it could discuss an offer with
defendant concerning a separate case. When the matter was recalled, the State reported that
defendant had rejected its offer on the separate case. The State further reported, “[Defendant] did
inquire about the court’s previous 402 offer on the case where he blind pled this morning.
[Defendant] and I discussed an offer that involved both cases. However, he has since rejected that
offer, so that offer is withdrawn.”
¶ 11 After further discussion of the separate case, defendant queried as to how presentence
custody credit would be applied. In the course of answering defendant’s questions, the trial court
told him that the State was offering, and “I would sentence you to,” five years in prison “on those
counts that you pled guilty to.” The court would impose a three-year sentence on the separate case,
for a total of eight years in prison. It repeated twice more that defendant would receive a five-year
sentence in the instant case. When the court asked defendant what he would like to do, he
answered, “Yeah, I will take it.”
¶ 12 The trial court proceeded to give defendant guilty plea admonishments for the separate
case. When the court asked him if he had signed a jury waiver, defendant responded by asking
about presentence custody credit and requesting PSI reports for both cases. The following
exchange ensued:
“THE DEFENDANT: Can you order a presentence investigation report?
THE COURT: If there is an agreement, you can waive it. If you want a presentence
investigation report, what I will do then is have a hearing after reviewing the presentence
investigation report. That is what we call a blind plea. Then it would be up to me what I
think a fair sentence would be.
No. 1-23-0252
(Brief pause.)
THE DEFENDANT: How do I know I am getting my time credit?
THE COURT: I am going to think about this for just a minute and I have to decide
if I am going to go along with this agreement. You didn’t sign the jury waiver.
I think what I am going to do is set it for trial, State.
[ASSISTANT STATE’S ATTORNEY]: Okay.
THE COURT: If you don’t mind.
[ASSISTANT STATE’S ATTORNEY]: That’s fine, Judge.
THE COURT: I am going to strike the plea, and I am going to hold the elected case
over for trial on January 31st.”
¶ 13 The State indicated that it was withdrawing its offer. The court informed defendant that,
after the PSI report was completed, the instant case would proceed to sentencing. The court stated,
“I am not going along with any agreement. What I will do is after your jury trial [on the separate
case], I will hear anything you have to say in mitigation on the case you pled guilty to, and if you
win your other case, we won’t address the sentencing. If you don’t win the case, then I will
sentence you on both.”
¶ 14 When the case was called on January 31, 2023, the trial court summarized that defendant
had entered a blind plea to counts II, III, and IV, and that there had been no agreement as to the
sentence. After the parties acknowledged receipt of the PSI report, the State moved to amend it to
include several prior convictions which had been unsealed. Other than one conviction for
possession of a stolen motor vehicle in 2006, defendant’s other prior convictions were all for
possession of a controlled substance and were committed between 2008 and 2013. The State also
No. 1-23-0252
noted the predicate armed robbery identified in the indictment, case No. 02 CR 1998201, stating
that it had “not ma[d]e the criminal history because that was sealed as well.” Defendant objected
to the State using the 2002 armed robbery “to enhance my Class 3 to a Class 2,” asserting that the
Juvenile Court Act of 2016 was retroactive. The trial court overruled the objection.
¶ 15 The PSI report also included defendant’s version of the offense. In short, defendant related
that he was at a block party when his friend was shot multiple times and killed. He ran to his friend
to see if he was alive and to try to help. The shooters were approaching from an alley, so defendant
took a gun off his friend’s body and pointed it toward them. He stated, “I took it to defend myself.
The police was [sic] coming. I put the gun on my hip and walked across the street. I never fled. I
told the police I took it to defend myself.”
¶ 16 The court asked defendant whether he had any evidence to present at the sentencing
hearing. Defendant addressed the stipulated factual basis for the plea, stating that “they” killed his
friend, and if he had not taken the gun off his friend’s body, “they” would have killed him, too.
The State indicated it was resting on the PSI report and stated, “Just for the record, there is a
presumptive minimum of seven years on Counts—on Count 2. We had previously offered the
defendant five.” The State also reported that defendant was “extendable” based on three prior
convictions from 2013 for Class 1 manufacture and delivery of a controlled substance. In
mitigation, defendant argued that the 2013 convictions “all ran concurrent.” He also argued that
he should be sentenced as a Class 3 felon, as he “never had a forcible that would enhance my ***
Class 3 UUW [sic] to a Class 2.”
¶ 17 Finally, when given the opportunity to make a statement in allocution, defendant stated he
had no choice but to take the gun, as “they would have loved to kill two people” and “[i]t was
No. 1-23-0252
either that or die.” The trial court stated that, given the procedural posture of the case, it could not
decide whether self defense was a viable defense. However, the court stated it would take self
defense, “even if it’s a mistaken belief in self defense,” into account when imposing sentence.
[SEGMENT 11]
¶ 18 The court sentenced defendant to seven years in prison on count II and merged counts III
and IV. The court explained as follows:
“I am going to impose the presumptive minimum in this case after, having
considered the presentence investigation report, defendant’s statement in allocution, which
I’ve already mentioned, the arguments from both sides, the statutory and non statutory
factors in aggravation and mitigation, whether or not are specifically mentioned by the
State or by [defendant], I’m considering the defendant’s history and the circumstances of
the offense, and having due regard for the seriousness of the offense in which the defendant
has pled guilty, sentence will be 7 years in the Illinois Department of Corrections.”
¶ 19 Defendant asked for clarification regarding the class of the offenses charged in the
indictment. The trial court answered that it had sentenced him as a Class 2 offender. Defendant
replied, “Okay. I would like to put in a motion to object and appeal.” The court responded that
they were “not quite finished yet,” and then admonished defendant regarding his right to appeal.
Defendant thereafter submitted a written motion to reconsider sentence, arguing orally for Class 3
sentencing and for the court to impose the five-year sentence the State had “agreed to” earlier. The
trial court denied the motion, stating that it was appropriate to sentence defendant as a Class 2
felon. Defendant filed a notice of appeal.
¶ 20 On appeal, defendant contends that the trial court erred by relying on an offense that
occurred when he was 16 years old to “convict” him both of UUWF and of Class 2 AUUW; that
No. 1-23-0252
the trial court misapprehended the sentencing range when it determined there was a seven-year
presumptive minimum for UUWF; and that the trial court abused its discretion when it failed to
consider that mitigating circumstances warranted imposing a sentence below seven years.
¶ 21 As an initial matter, we note that Illinois Supreme Court Rule 604(d) (eff. Apr. 15, 2024)
provides that no appeal from a judgment entered upon a guilty plea shall be taken unless the
defendant, within 30 days of the date of sentencing, “files in the trial court a motion to reconsider
the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion
to withdraw the plea of guilty and vacate the judgment.” In general, the filing of a Rule 604(d)
motion is a “condition precedent to an appeal from a judgment on a plea of guilty,” and the failure
to file a timely Rule 604(d) motion precludes this court from considering the appeal on its merits.
[CITATION]
¶ 22 Here, defendant is not only raising sentencing issues. He is also challenging his plea. Yet,
while he filed a motion to reconsider sentence, he did not file a motion to withdraw his guilty plea.
Nevertheless, because defendant entered into a blind plea in this case, rather than a negotiated plea
(see [CITATION] (in an “open” or “blind” plea, the defendant pleads guilty
without receiving any promises from the State in return)), we may consider the merits of his
non-sentencing arguments. See [CITATION] This is
because the object of the contractual analysis that applies in appeals involving guilty pleas is to
return the parties to the status quo that existed prior to the entry of the plea agreement and, where,
as here, a defendant enters a blind guilty plea, returning to the status quo does not require that a
defendant relinquish his guilty plea. [CITATION]
No. 1-23-0252
¶ 23 Next, with regard to procedural default, we address the State’s assertion that defendant has
waived all claims of error because he pled guilty. In making this argument, the State relies on
[CITATION]. In [CITATION], the 17-year-old defendant entered a negotiated guilty
plea of 50 years in prison for a single count of murder. Id. ¶¶ 1, 4. He subsequently challenged a
mandatory sentencing scheme that was never actually applied to him due to the plea agreement.
Id. ¶¶ 7, 17, 18.
¶ 24 The [CITATION] court held that, “[i]f the statutory sentencing scheme had actually been applied
in this case to set [the defendant’s] life sentence, [his] argument would have presented a claim that
we could have reviewed on its legal merits.” Id. ¶ 18. The court further held that, by entering a
plea agreement, the defendant foreclosed any claim of error, as a voluntary guilty plea waives all
non-jurisdictional errors or irregularities, including constitutional ones. Id. ¶ 20. The court
reasoned that plea agreements are contracts “and principles of waiver apply equally to them.” Id.
¶ 21. It further explained that entering into a contract is, generally, a bet on the future, and that
pleading guilty “ ‘permits a defendant to gain a present benefit in return for the risk that he may
have to [forego] future favorable legal developments.’ ” (Alteration in original.) Id. (quoting
[CITATION]). Accordingly, the court concluded that the
defendant’s knowing and voluntary guilty plea had waived any constitutional challenge based on
subsequent changes in the law. Id. ¶ 26.
¶ 25 We find [CITATION] distinguishable for two reasons. First, unlike in [CITATION], defendant is
challenging a sentence that was actually imposed rather than a sentence that “was never actually
applied to him due to the plea agreement.” Id. ¶¶ 7, 17, 18. See also [CITATION]. Second, in [CITATION], the defendant’s postconviction claim hinged on a case that
- 10 -
===== End of Part of a Court Ruling ===== No. 1-23-0252
was decided years after he pled guilty. Here, defendant did not plead guilty in reliance on “future
favorable legal developments” and is not making a claim based on changes in the law that occurred
subsequent to his plea. Rather, from the time the trial court allowed him to proceed pro se,
defendant has claimed that, because he was a juvenile in 2002, the State could not use his 2002
armed robbery as a predicate offense for the charge of UUWF and to enhance his sentencing class
for AUUW. See [CITATION].
¶ 26 In the trial court, defendant filed a written motion to dismiss the charges of UUWF and
AUUW, persisted in his objection throughout his plea and at sentencing, and moved for
reconsideration of his sentence on this basis. This court has held that “a guilty plea does not bar a
claim on appeal ‘where on the face of the record the court had no power to *** impose the
sentence.’ ” [CITATION] (quoting [CITATION]). “In other words, if the claim does not contradict the terms of the
indictment or plea agreement, we can consider it.” Id. Here, defendant is not challenging the factual
basis for his plea. Instead, he is challenging the UUWF statute’s application to his admitted
conduct and the State’s power to punish him for AUUW as a Class 2 offender. Under these
circumstances, defendant’s guilty plea did not waive his arguments on appeal. See id.; [CITATION].
¶ 27 As a final matter with regard to procedural default, we are mindful that our supreme court
has recently held that, where a defendant stipulates that requisite prior qualifying convictions exist
in his criminal record to sustain a charge, he is precluded from attacking or otherwise contradicting
those stipulated facts on appeal. [CITATION]. However, the holding
of [CITATION] does not apply in the instant case, in which defendant stipulated to the existence of his
- 11 - No. 1-23-0252
2002 armed robbery, but did not stipulate that it was a “qualifying” offense. See id. ¶¶ 9, 27 (the
defendant’s stipulation that he “ha[d] two prior qualifying felony convictions for the purposes of
sustaining the charge of armed habitual criminal” established that he had been convicted of two
prior felonies “and that those felonies were qualifying felonies” (emphasis in original)).
¶ 28 Having concluded that defendant is not procedurally precluded from raising his claims in
this court, we turn to the merits of his arguments. First, defendant argues that the trial court erred
by relying on his 2002 armed robbery to “convict” him both of UUWF and of “Class 2” AUUW.
The trial court sentenced defendant to seven years in prison on count II, the UUWF charge, and
merged counts III and IV into count II. Therefore, since the sentence was only imposed on count
II and a conviction requires a finding of guilt and a sentence, defendant stands convicted solely of
UUWF. See 730 ILCS 5/5-1-12 (West 2022); [CITATION], ¶ 71 (“there
is no final judgment in a criminal case unless a sentence has been imposed”). It follows that we
have jurisdiction to consider the merits of defendant’s challenge to the UUWF conviction. See
[CITATION], ¶ 71 (appellate court jurisdiction extends to final judgments).
¶ 29 Regarding defendant’s AUUW claim, defendant was found guilty of AUUW, but not
[SEGMENT 12]
sentenced on that count. See 730 ILCS 5/5-1-12 (West 2022) (a conviction requires a finding of
guilt and a sentence); [CITATION], ¶ 71 (“there is no final judgment in a criminal
case unless a sentence has been imposed”). As our supreme court explained in [CITATION], the
appellate court has no jurisdiction to determine the validity of “unsentenced convictions,” as they
do not constitute final judgments. [CITATION], ¶¶ 71, 75. While we do have
jurisdiction to remand for imposition of sentences on unsentenced guilty findings, that is only in
situations where the trial court incorrectly merged those guilty findings into other offenses. Id. ¶¶
- 12 - No. 1-23-0252
74, 75. Here, we are not presented with such a factual scenario. As such, in accordance with
[CITATION], we find that we lack jurisdiction to review the merits of the trial court’s guilty findings
on AUUW counts III and IV. See [CITATION], ¶ 33-37 (finding
a lack of appellate jurisdiction to consider the merits of a guilty finding on a properly merged count
where no sentence was imposed).
¶ 30 Turning to the merits of defendant’s challenge to the UUWF conviction, whether
defendant’s 2002 juvenile offense may serve as a predicate offense for UUWF is a question of
statutory interpretation that we review de novo. [CITATION], ¶ 13. Section
24-1.11 of the Criminal Code of 2012 provides that a person commits UUWF if, as relevant here,
he possesses on or about his person any firearm and he “has been convicted of a felony under the
laws of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2020). Here, the predicate
felony conviction for UUWF was defendant’s 2002 armed robbery, which he committed when he
was 16 years old.
¶ 31 In 2002, armed robbery committed with a firearm by a minor who was at least 15 years old
was excluded from juvenile court jurisdiction and automatically transferred to adult criminal court.
See 705 ILCS 405/5-130(1)(a) (West 2002). However, in 2014, the legislature expanded juvenile
delinquency jurisdiction to 17-year-olds (see Pub. Act 98-61, § 5 (eff. Jan. 1, 2014) (amending 705
ILCS 405/5-120)) and, in 2016, amended section 5-130(1)(a) of the Juvenile Court Act of 1987
(Act), to, among other things, eliminate armed robbery from the list of automatic transfer offenses
(see Pub. Act 99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a))). Defendant argues
that, due to amendment of the Act, if his armed robbery case had been charged in 2020, it would
- 13 - No. 1-23-0252
have resulted in a juvenile adjudication rather than an adult criminal conviction. He therefore
asserts that his 2002 armed robbery conviction cannot serve as a predicate for UUWF.
¶ 32 As we observed in [CITATION], the best indication
of legislative intent is the language of the statute itself, given its plain and ordinary meaning. Id.
(citing [CITATION]). Where statutory language is clear and
unambiguous, this court will apply the statute without resort to further aids of statutory
construction, and we will not read into the statute exceptions, conditions, or limitations that are
not expressed by the legislature. Id. (citing [CITATION]).
¶ 33 As noted above, section 24-1.11 provides that a person is guilty of UUWF if he possesses
on or about his person any firearm and he “has been convicted of a felony under the laws of this
State or any other jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2020). Our supreme court has found
that “the proscription under section 24-1.1(a) is expressed in the past tense, thus applying to any
person who ‘has been convicted’ of a felony.” [CITATION], overruled on other grounds by [CITATION]. In [CITATION], we found that a similar
phrase, “having been convicted,” was the grammatical equivalent of saying “if he/she was
convicted,” and that the statute at issue was clear and unambiguous. [CITATION]. In keeping with [CITATION] and [CITATION], we conclude that the phrase “has been
convicted” is clear and unambiguous and may be applied without looking to extrinsic aids of
statutory construction. See id.
¶ 34 Here, it is not disputed that, in 2002, defendant committed the predicate offense of armed
robbery at age 16, or that the guilty finding for that offense resulted in a conviction in adult criminal
court, as opposed to juvenile court. Over a decade later, the legislature amended the juvenile statute
- 14 - No. 1-23-0252
so that an armed robbery committed at age 16 would result in a juvenile adjudication. See Pub.
Act 98-61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120)); Pub. Act 99-258 (eff. Jan. 1,
2016) (amending 705 ILCS 405/5-130(1)(a)). However, these amendments are not retroactive. See
[CITATION]. As such,
“no rule of construction authorizes this court to declare that the legislature did not mean what the
plain language of the statute imports, nor may we rewrite a statute to add provisions or limitations
the legislature did not include.” [CITATION]. Under the plain language
of section 24-1.1, defendant had been convicted of armed robbery in 2002, and this was sufficient
to serve as a predicate offense for UUWF. See id. (citing [CITATION]). Accordingly,
defendant’s arguments for reversal of his UUWF conviction fail.
¶ 35 Defendant’s next contention is that the trial court misapprehended the applicable
sentencing range when it determined there was a seven-year presumptive minimum for UUWF.
He argues that the trial court could not use his 2002 armed robbery to impose the increased
minimum because that charge would not result in an adult conviction today. He also asserts that
the trial court should not have imposed a seven-year sentence because it had earlier advised him
that UUWF was punishable by a penitentiary sentence of 3 to 14 years and “[i]ncreasing the
minimum without ever admonishing [defendant], who was appearing pro se, of the possibility is
fundamentally unfair.” As relief, defendant requests that this court reduce his sentence to the five-
year term “previously deemed appropriate by the State and court,” or, in the alternative, remand
for resentencing under the 3-to-14 year sentencing range.
- 15 - No. 1-23-0252
¶ 36 Defendant acknowledges that “he did not argue that the presumptive minimum could not
be imposed” in the trial court. Forfeiture aside, defendant urges us to consider this claim as a matter
of second prong plain error.
¶ 37 The plain error doctrine is a narrow and limited exception to forfeiture. [CITATION], 237 Ill. 2d 539, 545 (2010). To obtain relief under this doctrine in the sentencing context, a
defendant must show either that (1) the evidence at the sentencing hearing was closely balanced,
or (2) the error was so egregious as to deny the defendant a fair sentencing hearing. Id. However,
before addressing either prong, a defendant must first show that a clear or obvious error occurred.
Id. If he fails to meet his burden, the procedural default will be honored. Id. Here, we find no clear
or obvious error.
¶ 38 Defendant claims that the trial court erred by finding that his 2002 armed robbery
constitutes a qualifying predicate offense so as to trigger elevated sentencing for UUWF. Such
elevated sentencing is provided for in section 5-4.5-110 of the Unified Code of Corrections (Code)
(730 ILCS 5/5-4.5-110 (West 2022)), which is titled “Sentencing Guidelines for Individuals with
Prior Felony Firearm-Related or Other Specified Convictions,” and which was enacted as part of
the Safe Neighborhoods Reform Act (Pub. Act 100-3 (eff. Jan. 1, 2018)). Defendant’s argument
calls upon us to interpret that statutory section. See [CITATION], 2021 IL App (1st) 192154,
¶ 12. The interpretation of a statute is a question of law, which we review de novo. Id. ¶ 13.
¶ 39 The relevant provision of the sentencing guideline statute at issue appears in subsection
(c)(1) and states as follows:
“When a person is convicted of unlawful use or possession of a weapon by a felon,
when the weapon is a firearm, and that person has been previously convicted of a qualifying
[SEGMENT 13]
- 16 - No. 1-23-0252
predicate offense, the person shall be sentenced to a term of imprisonment within the
sentencing range of not less than 7 years and not more than 14 years, unless the court finds
that a departure from the sentencing guidelines under this paragraph is warranted under
subsection (d) of this section.” [CITATION].
Among the enumerated qualifying predicate offenses is “armed robbery under Section 18-2 or
similar offense under the Criminal Code of 1961.” [CITATION].
¶ 40 We have already determined that defendant’s 2002 armed robbery may serve as a predicate
offense for UUWF. Consistent with that finding, we conclude that the 2002 armed robbery may
serve as a qualifying predicate offense for purposes of section 5-4.5-110(c)(1). As such, the trial
court did not err or misapprehend the applicable sentencing range, as the minimum prison term
sentence was indeed seven years. [CITATION]. Because there was no
error, there was no plain error, and defendant’s contention remains forfeited.
¶ 41 Defendant’s final contention on appeal is that the trial court abused its discretion when it
failed to consider its ability to depart from the presumptive minimum based on compelling
mitigating circumstances that warranted a sentence below seven years. Specifically, he argues that
a shorter sentence was warranted due to his age at the time of the predicate offense, his history of
abuse, the length of time between his last criminal conviction in 2013 and this case, his non-violent
adult criminal history, his family responsibilities, and his consistent employment up until his arrest.
He further argues that the State implicitly acknowledged the mitigating nature of his conduct by
proposing a five-year sentence earlier in the proceedings. As relief, defendant seeks modification
of his sentence to five years, as “previously deemed appropriate by the court and the State.”
- 17 - No. 1-23-0252
¶ 42 A trial court has discretion to depart from the presumptive minimum set forth in the
sentencing guidelines if it finds substantial and compelling justification that the sentence would be
unduly harsh and that a sentence otherwise authorized by law would be consistent with public
safety and not deprecate the seriousness of the offense. 730 ILCS 5/5-4.5-110(d)(1) (West 2022);
[CITATION]; Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023)
(nonprecedential orders entered on or after January 1, 2021, may be cited for persuasive purposes).
The statute contains a list of factors the court is to consider in order to determine whether a
departure from sentencing guidelines might be warranted, such as the defendant’s age at the time
of the current or the predicate offense, the circumstances of the current and the qualifying predicate
offense, the time that has elapsed since the qualifying predicate offense, the defendant’s criminal
history, and whether departure from the sentencing guidelines is in the interest of the defendant’s
rehabilitation. 730 ILCS 5/5-4.5-110(d)(2)(A)-(H) (West 2022).
¶ 43 At sentencing in the instant case, the trial court was in possession of the PSI report, which,
as amended, included information on each of the subjects that defendant now claims would have
warranted a downward departure from the sentencing guidelines. Moreover, the trial court
specifically stated it was imposing the presumptive minimum sentence after having considered the
PSI report, defendant’s statement in allocution, the arguments from both sides, the statutory and
non-statutory factors in aggravation and mitigation, defendant’s history, and the circumstances and
the history of the offense. A trial court is presumed to know the law, and, on review, we presume
that the trial court followed all applicable laws unless the record indicates otherwise. [CITATION]. “We must presume the trial court knew it could depart
from the sentencing guidelines if it wished to do so.” [CITATION]
- 18 - No. 1-23-0252
U, ¶ 52; Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023) (nonprecedential orders entered on or after January
1, 2021, may be cited for persuasive purposes).
¶ 44 A sentencing determination will not be disturbed absent an abuse of discretion. [CITATION]. Sentences that fall within the permissible statutory range
constitute an abuse of discretion only where they are “greatly at variance with the spirit and
purpose of the law, or manifestly disproportionate to the nature of the offense.” Id. at 210. The
presumptive minimum sentence imposed in this case is not manifestly disproportionate to the
nature of the offense or at great variance with the spirit and purpose of the law.
¶ 45 For the reasons explained above, we affirm the judgment of the circuit court.
¶ 46 Affirmed.
- 19 - I'm sorry, but there seems to be an issue. The part of the court ruling you mentioned is not included in your message. Could you please provide the text that needs processing so I can assist you?
2024 IL App (1st) 220991-U
No. 1-22-0991
Filed April 25, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 CR 9493
)
SHERMAN HAWKINS, ) Honorable
) James B. Linn
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for armed habitual criminal affirmed when he stipulated to
the requisite predicate convictions.
¶2 Sherman Hawkins was charged by indictment with being an armed habitual criminal
(AHC), two counts of aggravated unlawful use of a weapon (AUUW), and one count of unlawful
use of a weapon by a felon (UUWF). Each count was premised on the allegation that Hawkins
possessed a firearm on August 29, 2020. The AHC count alleged that Hawkins had previously been
convicted of UUWF, committed in 2016, and a 2013 robbery. No. 1-22-0991
¶3 Hawkins filed a motion to dismiss the AHC count before trial. He contended that the 2013
robbery could not serve as one of the two requisite predicate convictions for AHC and therefore
the AHC count failed to state an offense. Hawkins relied on a 2014 amendment (Amendment) to
the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2020)), which
raised the juvenile court’s exclusive jurisdiction from minors under age 17 to those under age 18.
See Public Act 98-61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS 405/5-120). Hawkins was 17
years old at the time of the 2013 robbery. He reasoned that, as a result of the Amendment, the
robbery charge did not qualify as a predicate conviction because the same robbery charge for a
17-year-old in 2020 would have resulted in a juvenile adjudication of delinquency, rather than an
adult criminal conviction. To support his argument, Hawkins cited, inter alia, [CITATION], where the court employed similar reasoning to conclude that a defendant’s
conviction for delivery of a controlled substance committed at age 17 in 2002 could not serve as a
predicate offense for an AHC offense committed in 2016.
¶4 Initially, the circuit court agreed and granted Hawkins’s motion to dismiss the AHC count.
On reconsideration, however, the court denied Hawkins’s motion, reasoning that the Amendment
did not apply retroactively to offenses committed before the Amendment’s effective date.
¶5 The case proceeded to a jury trial. Chicago Police Officer Sean Driscoll testified that he
was monitoring police observation device (POD) cameras in the 15th Police District in the early
morning hours of August 29, 2020. Around 1:40 a.m., Officer Driscoll noticed a group of 10 to 15
people gathered on the street on the 4900 block of West Hubbard Street. One individual—an
African American male wearing a baseball hat turned to the side, a white tank top, and black
jogging pants—caught Officer Driscoll’s attention. Officer Driscoll observed this individual walk
to a parked car and return toward the group. As he walked, the individual kept his right hand inside
No. 1-22-0991
his waistband and appeared to be holding an object in that hand. Officer Driscoll suspected the
individual was concealing a handgun and relayed his observations to other officers.
[SEGMENT 14]
¶6 Officer Jonathan Diaz testified that he received a description of the individual that Officer
Driscoll suspected of possessing a handgun and a report of the location where that individual was
observed. Along with other officers, Officer Diaz proceeded by car to the 4900 block of West
Hubbard Street and observed Hawkins, whom he identified in court, standing on the sidewalk.
Officer Diaz believed Hawkins matched the description provided by Officer Driscoll. Upon Officer
Diaz’s arrival, Hawkins began walking away. Within moments, Hawkins was apprehended by
Officer Tyler, who was wearing a body worn camera (BWC). Officer Diaz observed Hawkins
holding a firearm in his hand. As Officer Tyler approached him, Hawkins threw the handgun to the
ground, where Officer Diaz immediately retrieved it. Officer Diaz identified Hawkins and the
handgun in still photos and video from Officer Tyler’s BWC. He also identified the handgun in
court along with the extended magazine, which was in the handgun when it was recovered,
containing 10 bullets.
¶7 The parties stipulated to the handgun’s chain of custody and that it was an operable .45
caliber semi-automatic pistol. They also stipulated that Hawkins “had been previously convicted
of two qualifying felony offenses under the laws of Illinois.”
¶8 After the jury was excused, Hawkins’s attorney informed the court that the stipulation to
qualifying offenses was based on the court’s pretrial ruling denying the motion to dismiss the AHC
count. The court then remarked as follows:
“We had a lengthy pretrial motion and hearing. Defense [counsel] is absolutely objecting
to the admissibility of a conviction that Mr. Hawkins had when he was 17 years old. He
-3 - No. 1-22-0991
was tried as an adult for that, albeit under the law as it is today, he would have gone to
Juvenile Court *** They objected to that.
But in light of the fact that we are on trial now and the Defense wanted to avail
itself of a remedy that is available in these situations to stipulate to the priors so the jury
doesn’t know exactly what the priors are, because that may be prejudicial *** That may
sound troubling to the jury *** They are still objecting.
The objection is timely made. Made. Preserved. Stipulation to the prior in no way
indicates that they are acknowledging the Court’s ruling. They are acknowledging the fact
that that conviction is out there, but they are not stipulating to its admissibility. They are
still arguing that it’s inadmissible.”
¶9 Hawkins elected not to testify and presented no evidence. Following closing arguments,
the jury returned guilty verdicts on all three counts. The court later sentenced him to a prison term
of nine years. Hawkins filed a timely notice of appeal.
¶ 10 On appeal, Hawkins argues that the State failed to prove he had two qualifying prior
convictions to sustain a conviction for AHC. He contends, as he did before the trial court, that his
conviction for a robbery committed at age 17 in 2013 did not qualify as a predicate offense due to
the subsequent Amendment. Hawkins does not challenge whether the State proved that he
possessed a firearm.
¶ 11 Under the Criminal Code of 2012 (Code):
“A person commits the offense of being an armed habitual criminal if he or she receives,
sells, possesses, or transfers any firearm after having been convicted a total of 2 or more
times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
-4 - No. 1-22-0991
(2) unlawful use of a weapon by a felon ***; or
(3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that
is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7(a) (West 2020).
Robbery is among the enumerated offenses defined as a forcible felony. 720 ILCS 5/2-8 (West
).
¶ 12 Hawkins relies primarily on the majority decision in [CITATION], which followed the prior appellate decision in Gray to conclude that a defendant’s AHC
conviction could not stand when the predicate offenses were robberies committed at age 17, before
the Amendment. Hawkins contends that his case presents an identical issue and should be resolved
likewise, reducing his conviction to the lesser included offense of UUWF and remanding for
resentencing. Id. ¶ 67.
¶ 13 However, [CITATION] does not control the outcome of this case. Our supreme court recently
reversed the appellate decision in Gray, albeit on different grounds, but the supreme court’s
decision nonetheless controls the outcome here. [CITATION]. The supreme
court affirmed Gray’s AHC conviction on the grounds that he stipulated that he had “ ‘two prior
qualifying felony convictions for the purposes of sustaining the charge of armed habitual
criminal.’ ” Id. ¶ 27. The court found the stipulation determinative of whether the State had proven
the requisite prior convictions to sustain an AHC conviction. Id. ¶ 26. The stipulation was
dispositive because “[a]fter stipulating to facts, a defendant is precluded from attacking or
otherwise contradicting those stipulated facts.” Id. (citing [CITATION]). In other words, a defendant cannot stipulate that they were previously convicted of a
predicate offense and later argue that the State failed to prove that predicate offense.
-5 - No. 1-22-0991
¶ 14 Here, the State asserts that Hawkins’s stipulation has the same effect. We agree. The
supreme court’s decision in [CITATION] requires that we find the State proved Hawkins guilty of AHC.
Hawkins objected to the admissibility of his 2013 robbery conviction, but the name of the offense
or any specific facts or circumstances about it were never admitted into evidence. Rather, only the
fact that Hawkins “had been previously convicted of two qualifying felony offenses under the laws
of Illinois” was admitted. Once that fact was stipulated, the names, nature, and other facts about
the convictions were no longer at issue. By so stipulating, the State satisfied its burden to prove
Hawkins had two predicate convictions for AHC. While the trial court noted Hawkins’s objection
and stated that he had preserved the issue, [CITATION] holds that the stipulation precludes any further
challenge to the fact stipulated.
¶ 15 Although the stipulation is dispositive here, we observe that the rule can be harsh. A
defendant situated as Hawkins faces a Sophie’s choice. 2 The defendant must either (1) stipulate to
qualifying convictions, preventing the jury from hearing evidence about prior crimes, but forfeit
his challenge or (2) maintain that his prior conviction did not qualify, preserving the issue, but
allowing the jury to hear evidence that, as the trial court noted, may be prejudicial. With that
predicament in mind, we explain that we would affirm Hawkins’s conviction even if he had not
stipulated to prior qualifying convictions.
¶ 16 Whether convictions for offenses committed by 17-year-old defendants prior to the
Amendment qualify as predicate convictions for AHC is not a settled issue in Illinois law. See
Hawkins preserved the issue regarding whether the trial court erred in denying his pretrial motion
to dismiss the AHC count. The claim was included in his motion for new trial, but Hawkins does not raise
it on appeal.
Sophie’s choice is defined as “an extremely difficult decision a person has to make. It describes a
situation where no outcome is preferable over the other. This can be either because both outcomes are
equally desirable or both are equally undesirable.”
Dictionary.com, https://www.dictionary.com/e/slang/sophies-choice/ (last visited April 22, 2024).
-6 - No. 1-22-0991
[CITATION] (finding such a conviction does qualify); [CITATION] (same); 3 [CITATION] (finding the
opposite). Resolution requires statutory interpretation.
¶ 17 When interpreting statutes, our primary objective is to ascertain and give effect to the
legislature’s intent. [CITATION], ¶ 14. The best indicator of legislative
intent is the plain and ordinary meaning of the statutory language. Id. When a statute is clear and
unambiguous, we will apply it as written without resort to aids of statutory construction. Id. “We
will not depart from the plain statutory language by reading into it exceptions, limitations, or
conditions that conflict with the expressed intent of the legislature.” [CITATION], ¶ 56. “No rule of construction authorizes
this court to declare that the legislature did not mean what the plain language of the statute imports,
nor may we rewrite a statute to add provisions or limitations the legislature did not include.” [CITATION], ¶ 28.
¶ 18 In relevant part, the AHC statute requires that the offense occur “after [the defendant]
having been convicted a total of 2 or more times of any” of the offenses enumerated in subdivisions
(a)(1) through (a)(3). 720 ILCS 5/24-1.7(a) (West 2020). “ ‘[H]aving been convicted’ is a perfect
[SEGMENT 15]
passive participle construction and is used to emphasize that a first action (here, a conviction) has
been completed before the second action begins (being found an armed habitual criminal).”
[CITATION], ¶ 33. The plain, ordinary, and unambiguous meaning of
“having been convicted,” as used in the AHC statute, simply leads to an inquiry of whether the
defendant has at least two prior convictions for offenses included in the listed categories.
[CITATION] was decided after completion of briefing in this case. We granted the State’s motion to
cite [CITATION] as well as Hawkins’s motion to cite [CITATION], which
followed [CITATION].
-7 - No. 1-22-0991
“Grammatically, it is the equivalent of saying, ‘if he/she was convicted.’ ” (Emphasis in original.)
Id. Thus, if a defendant was convicted of a forcible felony, as Hawkins was, before committing the
act giving rise to the AHC charge, that conviction qualifies. The statute expresses no exception,
limitation, or condition such that some forcible felony convictions qualify as predicate offenses
and others do not.
¶ 19 Hawkins argues that the words “of this Code” following “a forcible felony as defined in
Section 2-8” in subdivision (a)(1) signify a present tense, referring to the time of the conduct
underlying the AHC charge. He further contends that “this Code” in 2020 would include the 2014
amendment to the Juvenile Court Act, which would give the Juvenile Court exclusive jurisdiction
over a 17-year-old charged with robbery. In other words, had Hawkins committed the robbery in
, he would have received a juvenile adjudication, not an adult criminal conviction.
¶ 20 We cannot adopt Hawkins’s reasoning. The Amendment expressly provided that “[t]he
changes made to this Section by [the 2014 amendment] apply to violations or attempted violations
committed on or after the effective date of this amendatory Act [(January 1, 2014)].” [CITATION]
Since Hawkins committed robbery in 2013, the Amendment has no effect on the legal proceedings that followed from it. The “Code” referred to in subsection (a)(1) of the
AHC statute is the Criminal Code of 2012. [CITATION] Robbery is a forcible
felony under that Code. [CITATION] Thus, the robbery Hawkins committed in
remains an adult criminal conviction, not a juvenile adjudication. Hawkins attempts to avoid
this reality by having us consider a hypothetical and counterfactual robbery, as though it were
committed in 2020 instead of 2013. But Hawkins’s robbery conviction is not hypothetical. He
committed it in 2013, not 2020. And he was 24 in 2020, not a juvenile. Hawkins’s argument
-8 - No. 1-22-0991
attempts to apply the Amendment retroactively in spite of the legislature’s clearly expressed intent
that the amendment applies only prospectively.
¶ 21 The present tense aspect of subsection (a)(1) is concerned only with whether the offense of
conviction remains defined as a forcible felony under the Criminal Code of 2012 as amended. To
exclude an otherwise qualifying prior conviction based on the defendant’s age at the time of
commission reads an exception, limitation, and condition into the AHC statute that the legislature
did not express in either the AHC statute or the Amendment. Thus, we agree that “all that matters
is that defendant had a conviction, and that conviction was for an offense described in subsection
(a)(1) at the time defendant committed the underlying conduct which resulted in the armed habitual
criminal charge.” [CITATION], ¶ 36.
¶ 22 A comparison with the general recidivism statute is also instructive. For a defendant to be
found a habitual criminal or to be subject to enhanced class X sentencing based on prior
convictions, the legislature has expressly provided that “the first offense [must have been]
committed when the person was 21 years of age or older.” See 730 ILCS 5/5-4.5-95(a)(4)(E),
(b)(4) (West 2020). Thus, this language clearly distinguishes between convictions based on the
defendant’s age at the time of the offense’s commission. Those committed after the defendant
reached a certain age implicate the sentencing enhancements provided in the statute and
convictions committed before that age do not. Moreover, the statute demonstrates that the
legislature knows how to express whether the defendant’s age at the time of a prior conviction
affects the status of that conviction in future criminal proceedings. No similar language appears in
the AHC statute. When the legislature uses certain language in one place and not in another, we
presume the legislature intended different meanings and results. [CITATION], ¶ 23. Therefore, we conclude that the legislature
-9 - No. 1-22-0991
did not intend to make the age at which a defendant committed an offense a qualifying factor for
predicate convictions under the AHC statute.
¶ 23 For these reasons, we find that Hawkins was properly convicted of AHC and affirm the
judgment of the circuit court.
¶ 24 Affirmed.
-10 -
2024 IL App (1st) 221951-U
Fourth Division
Filed March 28, 2024
No. 1-22-1951
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
THE PEOPLE OF THE STATE OF ILLINOIS, Appeal from the
)
Plaintiff-Appellee, ) Circuit Court of Cook County
)
v. No. 21 CR 01407
)
CORTEZ HERRION, ) The Honorable Vincent M. Gaughan,
) Judge, presiding.
Defendant-Appellant.
)
JUSTICE OCASIO delivered the judgment of the court.
Presiding Justice Rochford and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: (1) The defendant’s prior conviction for residential burglary was properly alleged
as a predicate for charging him with being an armed habitual criminal. (2) The
record was inadequate to resolve the claim that defense counsel was ineffective for
failing to move to suppress the gun.
¶2 Following a jury trial, defendant Cortez Herrion was found guilty of one count of armed
habitual criminal and sentenced to nine years in prison. On appeal, he argues that his prior
conviction for residential burglary, which he committed when he was 17 years old, cannot serve
as a predicate for armed habitual criminal because an intervening expansion in juvenile-court
jurisdiction means that it would be treated today as a delinquency matter, not an adult criminal
prosecution. He also argues that defense counsel’s failure to file a motion to suppress the gun he
was found guilty of possessing amounted to ineffective assistance. We reject his first argument and
decline to reach his second argument. Accordingly, we affirm. No. 1-22-1951
¶3 I. BACKGROUND
¶4 In 2021, the State filed an indictment charging Herrion with being an armed habitual
criminal. 1 See 720 ILCS 5/24-1.7(a) (West 2020). The indictment alleged that Herrion had two
prior qualifying convictions, including a conviction for residential burglary that Herrion
committed when he was 17 years old. Before trial, Herrion did not move to dismiss the indictment
or suppress evidence of the gun he was charged with possessing.
¶5 The evidence at Herrion’s jury trial established that, on December 26, 2020, two Chicago
police officers were on patrol in the Englewood neighborhood in an unmarked vehicle when they
encountered a Nissan SUV that was missing a front license plate, bore an expired back license
plate, and had one taillight that was out. They pulled the Nissan over, and both officers got out and
approached it. Officer Kenneth Brink went to the driver’s door, and Detective Jeffrey Lawson went
to the passenger’s door. Herrion was sitting in the front passenger’s seat wearing a jacket and a
shoulder bag. Both officers smelled the odor of cannabis coming from the Nissan. When the driver
was unable to produce a valid license, Brink ordered him to get out of the car, and he complied.
Herrion also got out of the car when ordered to by Lawson. Once Herrion was out of the car,
Lawson did a brief pat-down search and felt what he thought might be a gun inside the shoulder
bag. When Lawson went to retrieve his handcuffs, Herrion ran, and a short chase ensued. During
the chase, Herrion let the shoulder bag fall to the ground, and it was retrieved by an officer who
had originally come to the scene to provide back-up for the traffic stop. After Herrion was
apprehended, Brink opened the bag and found, among other things, a loaded handgun, a small
amount of cannabis, and Herrion’s identification card, credit card, and social security card.
¶6 Lawson testified at trial. He explained that his role during the stop was to be the “guard
[SEGMENT 16]
officer” by keeping watch over Herrion while Brink interacted with the driver. When Brink pulled
the driver out of the car, Lawson thought the Nissan might end up being seized, so he ordered
1
The indictment also charged him with aggravated unlawful use of a weapon and two counts of
unlawful use or possession of a weapon by a felon, but the State voluntarily dismissed those
charges before trial.
No. 1-22-1951
Herrion out, too. Lawson admitted that, up until that point, he had not seen Herrion doing anything
wrong. The bag was and had remained closed, and Herrion had not gone into it or gestured toward
it. When Herrion got out of the car, Lawson decided “[f]or safety purposes” to “conduct[] a
protective pat down” of the shoulder bag. Upon placing his hand on the bag, Lawson felt something
that, from his experience and training, was likely to be a gun, which is why he decided to detain
Herrion.
¶7 The parties stipulated that Herrion had “previously been convicted of two qualifying felony
offenses.” The jury found him guilty.
¶8 After trial but before sentencing, Herrion filed a motion to dismiss the armed-habitual-
criminal charge, arguing that his residential-burglary conviction could not serve as a predicate for
armed habitual criminal because he had only been 17 years old at the time of the offense. The trial
court denied the motion to dismiss, and it sentenced Herrion to nine years’ imprisonment.
¶9 II. ANALYSIS
¶ 10 On appeal, Herrion argues that the trial court erred when it denied his motion to dismiss
the armed-habitual criminal charge. He also argues that his attorney’s failure to move to suppress
the gun denied him his right to the effective assistance of counsel.
¶ 11 A. Predicate for Armed Habitual Criminal
¶ 12 Herrion argues that if he had committed the residential burglary offense in 2020, the case
would have been resolved with delinquency proceedings in juvenile court rather than criminal
proceedings. We review the construction of statutory language de novo. [CITATION], ¶¶ 14-15.
¶ 13 As a preliminary matter, we note Herrion argues that the issue was preserved, and even if
it is forfeited, the issue can be reviewed under plain-error review. The State argues that Herrion
forfeited this argument as he did not object during the pendency of the case or preserve the issue
in his motion for a new trial. Under the plain-error doctrine, forfeiture can be excused when “a
clear and obvious error occurred” and either (1) “the evidence is so closely balanced that the error
No. 1-22-1951
alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of
the error” or (2) the error is “so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.” [CITATION].
Therefore, the first step is to determine whether there was a clear or obvious error. Id. As explained below, we find no error occurred.
¶ 14 Being an armed habitual criminal is a defined offense under Illinois law. A person commits
that offense by, among other things, possessing “any firearm after having been convicted a total of
2 or more times of any combination” of offenses specified in the statute. 720 ILCS 5/24-1.7(a)
(West 2020). Those predicate offenses include any “forcible felony as defined in Section 2-8 of
[the Criminal] Code.” Id. § 24-1.7(a)(1). The predicate convictions alleged in this case were for
residential burglary and robbery, which are both forcible felonies. Id. § 2-8. The parties agree that
a juvenile-delinquency adjudication is not a conviction for purposes of armed habitual criminal.
See [CITATION] (holding that a juvenile who had been
adjudicated delinquent had not been “convicted of a felony” under the statute defining the offense
of escape).
¶ 15 Herrion acknowledges that, when he committed residential burglary as a 17-year-old in
2009, he was subject to prosecution in criminal court under then-existing law. As he points out,
though, a 2014 amendment to the Juvenile Court Act of 1987 expanded juvenile-delinquency
jurisdiction to 17-year-olds. Pub. Act 98-61, § 5 (eff. Jan. 1, 2014) (amending 705 ILCS
405/5-120). Because the conduct that led to his conviction in the 2009 case would have resulted in
a delinquency adjudication had it been committed today, he reasons, that conviction cannot serve
as a predicate for armed habitual criminal. In support of his argument, Herrion relies on [CITATION] and [CITATION].
¶ 16 In [CITATION], the defendant was found guilty of being an armed habitual criminal. [CITATION], ¶ 6. One of the defendant’s prior convictions was for delivery of narcotics,
which he committed at age 17 in 2002. Id. On appeal, he challenged the sufficiency of the evidence
No. 1-22-1951
to sustain his conviction, arguing that the narcotics conviction could not serve as a predicate
offense because, under current law, he would have been adjudicated in juvenile court. [CITATION] ¶ 8. The
court agreed, finding that “for most offenses [the] age of the defendant operates as an element of
the offense” and that the defendant’s 2002 conviction for delivery of narcotics could not serve as
a predicate offense under the armed-habitual-criminal statute. [CITATION] ¶¶ 15-16. Based on that legal
determination, it held that the evidence at trial was insufficient to sustain his conviction. [CITATION] ¶ 16;
contra. [CITATION] ¶ 27 (holding that the evidence was sufficient to sustain the conviction
because the defendant stipulated that he had been convicted of two qualifying offenses).
¶ 17 In [CITATION], the defendant was found guilty of being an armed habitual criminal. [CITATION] ¶ 1. The defendant argued his prior convictions for armed robbery did
not qualify as predicate offenses under the armed-habitual-criminal statute because he was 17 years
old at the time he committed the offenses. [CITATION] ¶ 19. The court agreed, found the State had not
proved beyond a reasonable doubt that the defendant had two qualifying convictions at the time
he was alleged to have committed armed habitual criminal, and reduced the defendant’s conviction
to aggravated unlawful use of a weapon. [CITATION] ¶¶ 48, 50.
¶ 18 The State argues [CITATION], is instructive. In [CITATION],
the court rejected the defendant’s reliance on Gray. [CITATION] ¶ 36. The defendant was found guilty of
being an armed habitual criminal and argued on appeal the State failed to establish that his prior
conviction for armed robbery with a firearm was a predicate offense because he was 17 years old
at the time of the offense. [CITATION] ¶¶ 31-32. The court disagreed with Gray, finding that age does not
operate as an element of armed habitual criminal because the statute does not contain any reference
to age. [CITATION] ¶¶ 37-38. It therefore concluded that “defendant’s age does not change the fact that he
was ‘convicted,’ nor does it change the fact that armed robbery is a forcible felony.” [CITATION] at 38.
¶ 19 Additionally, in [CITATION], the defendant argued that
his conviction for residential burglary could not serve as a predicate conviction under the armed-
habitual-criminal statute because he was 17 years old at the time he committed the offense and if
he had committed it in 2016 it would have resulted in a juvenile adjudication. [CITATION]
No. 1-22-1951
App (4th) 200626, ¶ 26. The court explained that, based on the language of the statute, “for a
defendant’s conviction to serve as a predicate conviction for the offense of being an armed habitual
criminal, the conviction must be for an offense described in subsections (a)(1) through (a)(3) at
the time of the underlying conduct that resulted in the armed habitual criminal charge.” [CITATION] ¶ 35.
The court found “the fact that [the] defendant was 17 years old when he committed the 1983
offense for which he was convicted is irrelevant—all that matters is that defendant had a
conviction, and that conviction was for an offense described in subsection (a)(1) at the time
defendant committed the underlying conduct.” [CITATION] at 36.
¶ 20 We agree with [CITATION] and [CITATION] that, for the purposes of armed habitual criminal, all
that matters is that the defendant has a prior conviction for one of the specified offenses. In arguing
otherwise, [CITATION] asks us to read language into the armed-habitual-criminal statute that is not
there. We also note that, when it expanded juvenile-court jurisdiction to 17-year-olds, the
legislature provided that the amendment would apply prospectively “to violations or attempted
[SEGMENT 17]
violations committed on or after the effective date” of the amendment. 705 ILCS 405/5-120 (West
2014). Contrary to that express legislative intent, [CITATION]’s interpretation would effectively give
that amendment retroactive effect. Although [CITATION] was 17 years old when he committed the
offense, the fact remains that he was convicted of residential burglary, which is forcible felony and
therefore a predicate under subsection (a)(1) of the armed-habitual-criminal statute. Because that
conviction could properly be used as a predicate for armed habitual criminal, the circuit court did
not err in denying [CITATION]’s motion to dismiss.
¶ 21 As there was no error, we find no plain error. [CITATION] (“In
applying the plain error doctrine, it is appropriate to determine first whether error occurred at all
because ‘without error, there can be no plain error.’ ”) (quoting [CITATION]).
====== End of Ruling ====== No. 1-22-1951
¶ 22 B. Ineffective Assistance
¶ 23 Herrion next argues that trial counsel’s failure to file a motion to suppress the gun he was
found guilty of possessing amounted to ineffective assistance. The United States Constitution and
Illinois Constitution guarantee criminal defendants the right to effective assistance of counsel. U.S.
Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To establish a claim of ineffective assistance
of counsel, a defendant must show (1) counsel’s performance fell below an objective standard of
reasonableness and (2) a reasonable probability exists that, but for counsel’s deficient performance,
the result would have been different. [CITATION].
¶ 24 By their nature, ineffective-assistance claims often turn on matters that are outside the trial
record. To show that counsel performed deficiently, the defendant must rebut the presumption that
the alleged errors were reasonable strategic or tactical decisions. See id. at 689 (citing [CITATION]).
If the record does not show why counsel chose a particular course of action, it might be difficult or even impossible to overcome that presumption. Cf. [CITATION] (addressing ineffective-assistance claim on direct appeal because
the record disclosed “defense counsel’s reason for” taking the challenged action). Similarly, if the
record does not show what would have happened had counsel performed competently, it may not
be possible to determine whether the defendant was prejudiced. See [CITATION] (explaining that courts must evaluate “the effect of [counsel’s] errors on” the outcome). For these
reasons, when ineffective-assistance claims are raised on direct appeal, it is frequently the case
that “the record is incomplete or inadequate for resolving the claim.” [CITATION].
In those situations, the claim is better suited for collateral proceedings, and the reviewing court
should decline to resolve it on direct appeal. See [CITATION].
¶ 25 This is such a case. Herrion argues that Detective Lawson lacked a reasonable basis to
suspect that he was armed and dangerous, which would mean that the pat-down search of the
shoulder bag could not be justified as a protective frisk. See [CITATION]
(recognizing that police officers have “a narrowly drawn authority” to conduct a protective frisk
No. 1-22-1951
without probable cause when the officer “has reason to believe that he is dealing with an armed
and dangerous individual). But that was not the only possible basis for a constitutionally
permissible search. Both of the officers involved with the stop testified that the Nissan smelled of
cannabis, which may have provided probable cause to search the Nissan without a warrant. [CITATION]
And the scope of any such search would have included any
closed containers—such as Herrion’s shoulder bag—that could reasonably contain the sought-after
contraband. [CITATION] (citing [CITATION]).
¶ 26 To be sure, Stout may no longer be good law. The stop in this case happened after a change
to Illinois law legalized the possession of small amounts of cannabis starting on January 1, 2020.
See 410 ILCS 705/10-5(a)(1) (West 2020) (added by Pub. Act 101-27, § 10-5 (eff. June 24, 2019)).
Whether that partial legalization means that the odor of cannabis no longer provides probable cause
for a vehicle search is an open question that our supreme court appears poised to decide. See
[CITATION]. But even if the court holds that the odor of cannabis no longer provides
probable cause, the ultimate question here is not whether the search was legal but whether counsel
was ineffective. At the time of trial in this case, at least one Illinois case had held that Stout still
“remain[ed] good law and binding precedent” unless and until the Illinois Supreme Court
repudiated it. [CITATION], ¶ 26. It is possible that Lawson held a
good-faith belief that the search was specifically authorized by Stout and Rowell. See [CITATION]
(citing [CITATION]) (noting
that the fruits of an illegal search will not be excluded when the officer reasonably relied on binding
appellate precedent). Or there may have been circumstances not shown by the trial record that
provided probable cause to believe that the cannabis that could be smelled was not being legally
possessed. See [CITATION], ¶ 35 (finding that a delay in following signal to
pull over suggested that the defendant was trying to hide contraband and that the odor of raw
cannabis indicated that, even if legally possessed for medicinal purposes, the cannabis was not
No. 1-22-1951
being stored in a sealed container as required by law). This is not to say that counsel was not
ineffective. It is entirely possible that Lawson was well aware that the scent of cannabis might no
longer provide probable cause or that there were no circumstances suggesting that the marijuana
smell indicated illegal, as opposed to lawful, possession. The point is that the record before us does
not allow us to draw a conclusion one way or the other, so we are unable to resolve the claim that
counsel was ineffective.
¶ 27 Because the record does not disclose why counsel did not file a motion to suppress the gun
or show whether such a motion would have succeeded, we conclude that it is inadequate for us to
resolve Herrion’s claim that counsel was ineffective. Instead, that claim is best raised in a collateral
proceeding, such as one under the Post-Conviction Hearing Act (725 ILCS 5/art. 122 (West 2024)).
See [CITATION]. Based on our determination that the claim
necessarily depends on facts that are not of record, “we see no risk of forfeiture on collateral
review.” [CITATION].
¶ 28 III. CONCLUSION
¶ 29 Herrion’s conviction for residential burglary could serve as a predicate for the armed-
habitual-criminal charge even though he was only 17 years old at the time of the offense, so the
trial court properly denied his motion to dismiss. The record does not allow us to resolve Herrion’s
claim that counsel was ineffective for not moving to suppress the gun, so we decline to reverse his
conviction on that basis.
¶ 30 For these reasons, the judgment of the circuit court is affirmed.
¶ 31 Affirmed.
```
```
2024 IL App (1st) 211190-B
No. 1-21-1190
FIRST DIVISION
March 25, 2024
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 01 CR 22873
)
KENNETH DURANT, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Justice Hyman concurred with the judgment and opinion.
Justice Hyman also specially concurred, with opinion.
Justice Lavin dissented, with opinion.
OPINION
¶1 Defendant Kenneth Durant appeals from the circuit court’s denial of leave to file a pro se
successive petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-
1 et seq. (West 2020)). In a September 2022 unpublished order, we affirmed after finding that
defendant could not benefit from a 2021 amendment to the habitual criminal provision (730 ILCS
5/5-4.5-95(a) (West 2022)) that specifies that the first predicate offense be committed after the
defendant is 21 years of age. [CITATION]. Our supreme court No. 1-21-1190
subsequently issued a supervisory order directing us to consider the effect of its opinion in [CITATION]
on the issue of whether defendant’s life sentence is unconstitutional
and determine if a different result is warranted.
¶2 In light of [CITATION], we now reverse. We find that [CITATION]’s analysis of Public Act 101-652
[SEGMENT 18]
(eff. July 1, 2021)’s amendment to the Class X sentencing provision in subsection (b)(4) of section
4-4.5-95 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-95(b)(4) (West 2022)) must
apply to the identically worded amendment to the habitual criminal provision in subsection (a) of
the same statute, which requires that the “first offense was committed when the person was 21
years of age or older.” See id. § 5-4.5-95(a). [CITATION] found the amendment to the Class X
sentencing provision was intended by the legislature to “clarify” existing law as to whether crimes
committed before age 21 could be predicate offenses. [CITATION] thus
held a prior conviction for an offense committed before age 21 is not a qualifying offense, even
for a defendant sentenced before the 2021 amendment. See id. ¶¶ 22-23.
¶3 We find that [CITATION]’s determination as to the legislative intent behind the Class X
sentencing amendment in subsection (b) applies equally to the amendment to the habitual criminal
provision in subsection (a), especially since the legislature made these amendments simultaneously
in the same public act, adding identical language. Pub. Act 101-652, § 10-281 (eff. July 1, 2021).
Consistent with [CITATION], we conclude the simultaneous amendment to the Class X and habitual
criminal provisions reflected the legislature’s intent to clarify and restore the original meaning of
the provisions—that only convictions for offenses committed after age 21 should count towards
either sentencing a defendant as a Class X offender or adjudging him as a habitual criminal.
Moreover, [CITATION] applies retroactively on collateral review, since it “narrow[ed] the scope of a
No. 1-21-1190
criminal statute by interpreting its terms.” See [CITATION].
Accordingly, we reverse and remand for resentencing.
¶4 BACKGROUND
¶5 Following a jury trial in 2005, defendant was found guilty of aggravated vehicular
hijacking and two counts of armed robbery. He was sentenced to life imprisonment as a habitual
criminal, based on convictions for prior offenses including a robbery when he was 16 years old.
At the time of his sentencing, the habitual criminal provision in effect (720 ILCS 5/33B-1 (West
2000)), did not specify whether a defendant must have reached any particular age when he
committed any of the predicate offenses. 1 We affirmed on direct appeal. See [CITATION].
¶6 Defendant thereafter filed a pro se postconviction petition, which he amended. The circuit
court summarily dismissed the petition as frivolous and patently without merit. On appeal, we
reversed and remanded for further proceedings under the Act. See [CITATION]. On remand,
appointed counsel supplemented the petition and the circuit court ultimately granted the State’s
motion to dismiss. We affirmed, finding, in pertinent part, that defendant failed to make a
substantial showing that his counsel on direct appeal was ineffective for not challenging his life
sentence as unconstitutional on the grounds that he was a juvenile at the time of the first qualifying
offense. See [CITATION].
Effective July 1, 2009, that provision was repealed by Public Act 95-1052 and recodified without
modification as section 5-4.5-95(a) of the Code. Pub. Act 95-1052, § 5 (eff. July 1, 2009); 730 ILCS 5/5-
4.5-95(a) (West 2022).
No. 1-21-1190
¶7 Defendant then filed two unsuccessful pro se petitions for relief from judgment. See [CITATION].
¶8 On June 1, 2021, defendant filed a pro se motion for leave to file a successive
postconviction petition. In that petition, he alleged his life sentence was “unconstitutional as
applied to him,” since the legislature amended the habitual criminal provision to require that the
first qualifying offense occur when a defendant is 21 years or older. Specifically, in Public Act
101-652 (eff. July 1, 2021), the legislature amended section 5-4.5-95(a) of the Code to specify that
a person cannot be adjudged a habitual criminal unless “[t]he first offense was committed when
the person was 21 years of age or older.” 730 ILCS 5/5-4.5-95(a)(4)(E) (West 2022). Because one
of defendant’s qualifying offenses occurred when he was a juvenile, defendant argued that his
sentence violated the proportionate penalties clause of the Illinois Constitution. On August 18,
2021, the circuit court denied defendant leave to file the successive petition, concluding that the
2021 amendment to the habitual criminal provision did not apply retroactively and thus could not
provide him relief.
¶9 Defendant appealed. His appointed appellate counsel, the Office of the State Appellate
Defender (OSAD), initially determined that an appeal was without arguable merit and moved for
leave to withdraw pursuant to [CITATION]. In response to that
motion, defendant asserted that under [CITATION] and its progeny, as
well as the 2021 amendment to the habitual criminal provision, he was entitled to resentencing
because he was a juvenile when he committed one of the felonies underlying his sentence.
No. 1-21-1190
¶ 10 In a September 2022 order, we affirmed the denial of defendant’s motion for leave to file
a successive petition but emphasized that it was “troubling” that the first predicate offense was
committed when he was 16 years old. [CITATION], ¶ 9. We recognized
that the legislature had amended the habitual criminal provision to require that a defendant’s first
qualifying predicate offense be committed after he or she is 21 years old, but the legislature did
not specify that the amendment was retroactive. Id. ¶ 10 (citing 730 ILCS 5/5-4.5-95 (West 2022)).
As a result, we found there existed “two classes of habitual criminals: those who committed their
first qualifying offense as juveniles before the amendment and those who committed their first
qualifying offense after the amendment.” Id. ¶ 11. We remarked that due to the “non-retroactive
effect” of the amendment, “a class of juvenile offenders is being extraordinarily punished not for
the nature of their crime but when it was committed.” Id. ¶ 14. We found this “both unjust and
unjustifiable.” Id. ¶ 15.
¶ 11 Nevertheless, we recognized that we were “obligated to follow the law as it is written,”
absent further action by the legislature or our supreme court. Id. ¶ 16. Accordingly, we granted
appellate counsel’s motion to withdraw. We subsequently denied defendant’s petition for
rehearing in our court.
¶ 12 The Supreme Court’s [CITATION] Decision
¶ 13 On October 20, 2022, our supreme court issued its opinion in [CITATION], ¶ 1, which held that a defendant’s Class X sentence under section 5-4.5-95(b) of the Code (730
ILCS 5/5-4.5-95(b) (West 2016)), should be vacated because one of the predicate felony offenses
was committed when he was 17 years old. Notably, the [CITATION] defendant was sentenced before
Public Act 101-652 (eff. July 1, 2021) amended the Class X sentencing provision to specify that
No. 1-21-1190
the first predicate felony must have been committed “when the person was 21 years of age or
older.” 730 ILCS 5/5-4.5-95(b)(4) (West 2022). However, our supreme court determined that the
Class X sentencing amendment was “intended to resolve [a] conflict in the appellate court and
clarify the meaning of the original statute” such that it applied to the defendant notwithstanding
that he was sentenced before July 2021. [CITATION], ¶ 22.
¶ 14 When the [CITATION] defendant was sentenced in 2016, the Class X sentencing provision
stated:
“When a defendant, over the age of 21 years, is convicted of a Class
or Class 2 felony, after having twice been convicted in any state
or federal court of an offense that contains the same elements as an
offense now (the date the Class 1 or Class 2 felony was committed)
classified in Illinois as a Class 2 or greater Class felony and those
charges are separately brought and tried and arise out of different
series of acts, that defendant shall be sentenced as a Class X
offender. This subsection does not apply unless:
(1) the first felony was committed after February 1, 1978
(the effective date of Public Act 80-1099);
(2) the second felony was committed after conviction on
the first; and
(3) the third felony was committed after conviction on
the second.” 730 ILCS 5/5-4.5-95(b) (West 2016).
No. 1-21-1190
¶ 15 One of the predicate convictions upon which the Stewart defendant was found eligible
[SEGMENT 19]
for Class X sentencing was a residential burglary conviction in 2013, when he was 17 years old.
[CITATION], ¶ 7. In 2014, the Juvenile Court Act of 1987 was amended to raise the
age for exclusive juvenile court jurisdiction to 17 years. Id. (citing Pub. Act 98-61 (eff. Jan. 1,
2014) (amending 705 ILCS 405/5-120, 5-130)). The Stewart defendant argued that the 2013
burglary conviction was not a qualifying offense for Class X sentencing, because “if he had
committed the residential burglary on August 13, 2016 (the date that the current offense was
committed), it would have resulted in a juvenile adjudication, not a felony conviction.” Id. The
State contended that under section 5-4.5-95(b) of the Code, “whether defendant was a juvenile at
the time of the prior offense is irrelevant” and that a prior offense may serve as a predicate if its
elements are the “same as those of an offense that constitutes a Class 2 or greater Class felony as
of the date of the present offense.” Id. ¶ 15.
¶ 16 Our supreme court identified the “precise question” as “whether the legislature
intended a prior felony conviction to be a qualifying offense for Class X sentencing if the same
offense would have resulted in a juvenile adjudication had it been committed on the date of the
present offense.” Id. ¶ 16. Our supreme court remarked that “the statute is silent” on this question,
which had “resulted in a split in our appellate court.” Id. ¶¶ 16-17. The court cited three First
District decisions holding that a prior conviction is not a predicate for Class X sentencing if it
would now be resolved through delinquency proceedings, as well as a contrary Fourth District
decision. Id. ¶ 17 (comparing [CITATION], ¶ 21, and [CITATION], ¶ 11,
with [CITATION], ¶ 25 (holding that prior conviction based on
====== End of Part ====== No. 1-21-1190
offense when defendant was 17 years old was a qualifying predicate conviction for Class X
sentencing)).
¶ 17 Our supreme court indicated that the statute’s silence was an “ambiguity” but that
“[l]egislation enacted after the appellate court rendered its conflicting decisions *** clarified that
the General Assembly did not intend for convictions of juveniles in adult court to be considered
qualifying offenses for Class X sentencing.” [CITATION] ¶ 18. Specifically, “Public Act 101-652 (eff. July
1, 2021) amended section 5-4.5-95(b)(4) of the Code to provide that the first qualifying offense
for Class X sentencing must have been ‘committed when the person was 21 years of age or older.’
[CITATION] (amending 730 ILCS 5/5-4.5-95(b)(4)).” [CITATION] ¶ 19.
¶ 18 Our supreme court went on to determine that this amendment was a clarification of
existing law, rather than a change in law. It recognized that “[a]lthough a statutory amendment
creates a presumption that it was intended to change existing law, this presumption is not
controlling. [Citation.]” [CITATION] ¶ 20. It explained that circumstances surrounding an amendment may
indicate that “legislature intended merely to interpret or clarify the original act.” [CITATION] Our supreme
court explained that circumstances indicating a “legislative intent to clarify rather than make a
substantive change in the law include” (1) whether the legislature “declared that it was clarifying
a prior enactment,” (2) whether a “conflict or ambiguity existed prior to the amendment,” and
(3) whether the amendment is “consistent with a reasonable interpretation of the prior enactment
and its legislative history.” (Internal quotation marks omitted.) [CITATION]
¶ 19 Our supreme court emphasized that “prior to the legislature amending section 5-4.5-
95(b) of the Code, a conflict in our appellate court existed” as to whether a prior conviction that
would now result in a juvenile adjudication could constitute a predicate offense for Class X
sentencing. [CITATION] ¶ 21 (citing the conflicting decisions in [CITATION]).
No. 1-21-1190
[CITATION], ¶ 26). Stewart found these conflicting decisions “negate[d] the presumption that the legislature intended to change existing law when it amended the statute to require that qualifying offenses must have been committed when the person was 21 years of age or older. [Citation.]” Id. ¶ 22.
¶ 20 Our supreme court in Stewart “conclude[d] that Public Act 101-652 was intended to resolve the conflict in the appellate court and clarify the meaning of the original statute.” Id. Therefore, the Stewart defendant’s “conviction for an offense committed when he was 17 years old was not a qualifying offense for Class X sentencing under the previous version of section 5-4-95(b) of the Code.” Id. Thus, his sentence was “properly vacated *** based on his statutory ineligibility for Class X sentencing.” Id. ¶ 23.
¶ 21 The Supreme Court’s Supervisory Order in This Case
¶ 22 On December 6, 2022, defendant filed a petition for leave to appeal in our supreme court. On March 29, 2023, our supreme court entered a supervisory order in which it denied defendant’s petition for leave to appeal. However, the supreme court directed us to vacate our September 2022 order and to “consider the effect of this Court’s opinion in [CITATION], on the issue of whether defendant’s life sentence is unconstitutional and determine if a different result is warranted.”
¶ 23 The mandate for the supervisory order was issued on May 3, 2023. Shortly thereafter, we vacated our September 2022 order. In addition, we directed OSAD to notify this court whether it wished to maintain its motion to withdraw from the appeal pursuant to Finley. In response, OSAD moved for leave to withdraw its previously filed motion to withdraw. We allowed that motion and
No. 1-21-1190
set a briefing schedule for the parties to address the supreme court’s supervisory order. The matter
has now been fully briefed and orally argued before this court.
¶ 24 ANALYSIS
¶ 25 Defendant now asserts that, in light of [CITATION], the trial court erred when it denied his
motion for leave to file a successive postconviction petition challenging his natural life sentence
as unconstitutional. He argues that [CITATION]’s analysis of Public Act 101-652’s amendment to the
Class X sentencing provision in subsection (b) of section 5-4.5-95 of the Code (730 ILCS 5/5-4.5-
95(b) (West 2022)) applies equally to the “identical” amendment to the habitual criminal provision
in subsection (a) of the same section of the Code. Id. § 5-4.5-95(a). Defendant correctly points out
that Public Act 101-652 simultaneously amended both subsection (a) and (b) to add the same
language regarding defendant’s age when a predicate offense was committed. Pub. Act 101-652
(eff. July 1, 2021) (amending 730 ILCS 5/5-4.5-95(a), (b)). That is, both subsections now specify
that the “first offense [must have been] committed when the person was 21 years of age or older”
for a person to be adjudged as a habitual criminal or to be subject to Class X sentencing. 730 ILCS
5/5-4.5-95(a)(4)(E), (b)(4) (West 2022). Defendant suggests that [CITATION]’s discussion of
legislative intent applies to both subsections, such that both amendments to subsection (a) and
subsection (b) were “merely clarifying the long-standing provisions [that] the State cannot *** use
crimes committed by the defendant prior to the age of 21 as a predicate offense” for either
provision. He proceeds to argue that because [CITATION] narrowed the scope of a criminal statute, it
is a substantive rule that applies on collateral review.
¶ 26 In response, the State contends that [CITATION] is inapplicable because it was limited to the
specific amendment to the Class X sentencing provision in subsection (b) of section 5-4.5-95 but
- 10 - No. 1-21-1190
does not extend to the simultaneous amendment to the habitual criminal provision in subsection
(a). The State suggests that Stewart’s rationale for finding that the 2021 amendment was a mere
clarification of subsection (b) is not applicable to subsection (a). Whereas Stewart found the prior
version of subsection (b) was “silent” as to defendant’s age at the time predicate offenses, the State
urges that the previous version of the habitual criminal provision was not silent but required that
the person was at least 18 years old at the time of the third offense. See [CITATION] (“Anyone who, having attained the age of 18 at the time of the third offense, is
[SEGMENT 20]
adjudged an habitual criminal [and] shall be sentenced to a term of natural life imprisonment.”).
The State points out that the 2021 amendment to the habitual criminal provision eliminated the
phrase referencing the age of 18 as of the third offense and added that a person must be at least 21
years old at the time of the first offense. See [CITATION]. For that
reason, the State argues that the 2021 amendment to subsection (a) was not a “mere clarification”
of existing law but substantively changed the habitual criminal provision. In turn, the State argues
that the amendment does not apply retroactively to benefit defendant.
¶ 27 In his reply brief, defendant acknowledges that “as of 2016, subsection (a) was amended
to include an age qualifier” for a defendant’s third offense. [CITATION].
Yet, defendant maintains the 2016 amendment “has no impact upon the 2021 clarification by the
legislature.” According to defendant: “The 2021 amendment pertains to whether an offense
committed when the defendant was a juvenile can be used as one of the two predicates for the
‘Habitual Criminal’ provisions of section 5-4.5-95, whereas the 2016 amendment pertains to the
offender’s age at the time of the 3rd offense.”
- 11 - No. 1-21-1190
¶ 28 At oral argument, defendant reiterated his position that Stewart reflects that the identically
worded 2021 amendment to both subsections (a) and (b) must be regarded as the legislature’s
clarification of its original intent for both provisions—that crimes committed before age 21 should
not count as predicates for either habitual criminal status or Class X sentencing. Defendant also
points out that, following a similar supervisory order pursuant to Stewart, the Fourth District
ordered resentencing for a defendant sentenced under the habitual criminal provision before the
2021 amendment. [CITATION] (accepting the State’s
concession that under Stewart, the court was required to vacate defendant’s natural life sentence
and remand for resentencing, where one of the predicate offenses for adjudging him a habitual
criminal was committed when he was 17 years old). 2
¶ 29 We keep in mind that our role on remand from the supervisory order is to consider what
effect (if any) the Stewart decision has on the merits of defendant’s claim, which is premised on
the 2021 amendment to the habitual criminal provision. The parties do not dispute that Stewart
determined that when Public Act 101-652 amended the Class X sentencing provision to add that
the “first offense [must be] committed when the person was 21 years of age or older,” it was a
clarification of existing law, rather than a change in law. [CITATION] There is
also no dispute that Public Act 101-652 simultaneously added the same phrase to the habitual
criminal provision. Essentially, the parties dispute whether Stewart’s “clarification” analysis
applies only to the Class X sentencing provision contained in subsection (b) of section 5-4.5-95 of
the Code or if it also extends to the habitual criminal provision in subsection (a).
At oral argument, defendant acknowledged that the State is not bound in this case by the
concession it made in [CITATION].
- 12 - No. 1-21-1190
¶ 30 For the following reasons, we agree with defendant that Stewart’s discussion of Public Act
101-652’s amendment to the Class X provision in subsection (b) must inform our interpretation of
the simultaneous amendment to the habitual criminal provision in subsection (a). Moreover,
contrary to the State’s suggestion, our conclusion is not undermined by the legislative history of
the habitual criminal provision. Rather, we think Public Act 101-652 is properly viewed as the
legislature’s restoration of the original intended meaning for both subsection (a) and (b)—that
convictions under age 21 should not be used as predicate offenses.
¶ 31 We recognize that Stewart did not explicitly discuss the legislative intent behind the
amendment to the habitual criminal provision. Nevertheless, as a matter of logic, Stewart’s
discussion of the legislative intent behind Public Act 101-652’s amendment to the Class X
provision in subsection (b) cannot be viewed in isolation from the legislature’s simultaneous and
substantially identical amendment to the habitual criminal provision. That is, Stewart’s conclusion
that the Class X sentencing amendment was intended as a clarification of existing law (and not
limited to prospective application) must inform our reading of the virtually identical amendment
to the habitual criminal provision.
¶ 32 We emphasize that both amendments were implemented simultaneously, as part of the
same public act. Further, the legislature inserted the exact same language at subsection (a) and (b)
of section 5-4.5-95 of the Code to state that, to be adjudged as a habitual criminal or to be eligible
for Class X sentencing, the “first offense [must have been] committed when the person was 21
years of age or older.” 730 ILCS 5/5-4/5-95(a)(4)(E), (b)(4) (West 2022). Given these
circumstances, it is hard to conceive how the legislature could have intended one of the
amendments to be a mere clarification of existing law (that applied retroactively), while having a
- 13 - No. 1-21-1190
very different intent for the other identically worded amendment. Indeed, it would be incongruous
and defy common sense to find the legislature did not act with similar intent when it added identical
provisions at the very same time in the same public act. Rather, we think it is reasonable to presume
that simultaneous, identical amendments within the same section of the Code were driven by the
same legislative intent and purpose.
¶ 33 This is consistent with the general principle that, in discerning legislative intent, statutory
“words and phrases must be construed in relation to other relevant statutory provisions and not in
isolation.” [CITATION] (same.) Ascribing the same intent to similarly worded amendments is also
consistent with the principle that “where a word is used in different sections of the same statute,
the presumption is that the word is used with the same meaning throughout the statute, unless a
contrary legislative intent is clearly expressed.” [CITATION].
¶ 34 In Public Act 101-652, the legislature simultaneously added the same language regarding
the minimum age for the commission of predicate offenses to support either Class X sentencing or
to be adjudged a habitual criminal. Our supreme court has now determined that the legislative
intent for the Class X sentencing amendment was to clarify existing law, such that its minimum
age requirement applied even to a person who was sentenced as a Class X offender before the 2021
amendment. [CITATION] (vacating defendant’s Class X sentence imposed
in 2017 based in part on conviction for offense committed when he was 17 years old). We agree
with defendant that [CITATION] should guide our reading of the intent behind the legislature’s
simultaneous amendment specifying an identical minimum age requirement for prior offenses used
to sentence an individual as a habitual criminal.
- 14 - No. 1-21-1190
¶ 35 We acknowledge, as emphasized by the State, that the legislative history of the habitual
criminal provision differs from that of the Class X sentencing provision. Specifically, the version
of the habitual criminal provision immediately preceding Public Act 101-652 (in effect from 2016
to 2021), indicated that persons as young as 18 could be adjudged a habitual criminal. See 730
ILCS 5/5-4.5-95(a)(5) (West 2020) (“Anyone who, having attained the age of 18 at the time of the
third offense, is adjudged an habitual criminal shall be sentenced to a term of natural life
imprisonment.”). Before 2016, the habitual criminal provision did not specify any minimum age.
See 730 ILCS 5/5-4.5-95(a) (West 2014).
¶ 36 The State urges that the “age of 18” language in the immediately preceding version of the
habitual criminal provision means that the new language added by Public Act 101-652 must be
regarded as a substantive change in law. The State argues that this differentiates the 2021
amendment of the habitual criminal provision in subsection (a) from [CITATION]’s discussion of the
simultaneous amendment to the Class X sentencing provision in subsection (b).
¶ 37 We disagree. Viewing the legislative history of both subsections (a) and (b) in light of
[CITATION], we read the 2021 amendment in Public Act 101-652 as effecting a clarification and
restoration of the original meaning behind both subsections. Under our reading, the legislature
originally intended that convictions for crimes under age 21 should not count toward either
habitual criminal status under subsection (a) or Class X sentencing under subsection (b). Then,
from 2016 until 2021, the legislature made subsection (a) more punitive by grafting the “age of
18” language into the habitual criminal provision. In 2021, Public Act 101-652 restored
subsections (a) and (b) to their original intended meaning, explicitly clarifying that only offenses
- 15 - No. 1-21-1190
committed after the age of 21 should count toward eligibility for habitual criminal status or Class
[SEGMENT 21]
X sentencing. This reading is consistent with [CITATION] and the legislative history of both provisions.
¶ 38 Accordingly, pursuant to [CITATION], we hold that the 2021 amendment to the habitual
criminal provision must be regarded as a clarification and restoration of the original law, such that
it is not limited to prospective effect. That is, the requirement that predicate offenses must have
been committed after age 21 applies to individuals who were sentenced as habitual criminals before
the passage of Public Act 101-652 in 2021.
¶ 39 We further agree with defendant that this conclusion, derived from [CITATION], applies to cases
on collateral review, including his case. As this court has explained:
“ ‘A judicial decision that establishes a new constitutional rule
applies to all criminal cases pending on direct review.’ [CITATION]
(citing [CITATION]). As to convictions that are already final, however,
a new rule does not apply retroactively to cases on collateral review
except in two instances. First, ‘ “[n]ew substantive rules generally
apply retroactively.” ’ (Emphasis in original.) Id. (quoting [CITATION],
U.S. at 351). Substantive rules include those that narrow the
scope of a criminal statute by interpreting its terms, and
constitutional determinations that place particular conduct or
persons covered by the statute beyond the State’s power to punish.
Id. (citing [CITATION], 542 U.S. at 351-52).” [CITATION], 2014 IL App (1st)
, ¶ 86.
- 16 - No. 1-21-1190
Substantive rules “apply retroactively because they necessarily carry a significant risk that a
defendant stands convicted of an act that the law does not make criminal or faces a punishment
that the law cannot impose upon him.” (Internal quotation marks omitted.) [CITATION], ¶ 36.
¶ 40 We agree with defendant that Stewart effectively “narrow[ed] the scope of a criminal
statute by interpreting its terms,” such that it constitutes a substantive rule that applies retroactively
to cases on collateral review. [CITATION], ¶ 86. Accordingly, defendant
benefits from the Stewart decision and our foregoing discussion of how its holding extends to the
2021 amendment to the habitual criminal provision requiring that predicate offenses must be
committed after age 21.
¶ 41 We thus find that defendant was improperly sentenced to natural life as a habitual criminal,
insofar as his sentence was premised on a predicate offense committed when he was under 21 years
of age. His sentence violated the habitual criminal provision in section 5-4.5-95(a) of the Code,
and it also constituted a violation of his constitutional due process rights. See [CITATION],
(finding due process violation where defendant was
improperly sentenced as an “armed career criminal” under the Armed Career Criminal Act of 1984
(18 U.S.C. 924(e)(2) (2009), where one of the predicate offenses underlying the sentence was not
a “violent felony” within the meaning of that statute). 3
As we agree that defendant’s due process rights were violated, we need not additionally assess the
merits of his argument that his sentence violates the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970 art. I, § 11) because it shocks the moral sense of our community. See [CITATION] (“[A] sentence violates the proportionate penalties clause if it is so
cruel, degrading, or disproportionate to the offense that the sentence shocks the moral sense of the
community. [Citations.]”).
- 17 - No. 1-21-1190
¶ 42 As to the appropriate remedy, we find that there is no need for further postconviction
proceedings since there are no disputed issues of fact. That is, defendant is entitled to resentencing
under [CITATION] and its application to the habitual sentencing provision.
¶ 43 CONCLUSION
¶ 44 For the foregoing reasons, we reverse the circuit court’s denial of defendant’s petition for
leave to file a pro se successive postconviction petition, vacate his natural life sentence, and
remand for resentencing in accordance with this order.
¶ 45 Reversed and remanded.
¶ 46 JUSTICE HYMAN, specially concurring:
¶ 47 “Ultimately, the issue of the status of mercy in judgment and punishment confronts us with
a fundamental question: What are the values and virtues of society, and the judges acting in its
name?” [CITATION], 35 Emory Int’l L. Rev. 549, 593 (2021). For the Illinois legislature, the Illinois Supreme Court, and the
majority in this case, the answer, as it applies to Class X for convictions before the age of 21,
aligns with Illinois’s evolving view on juvenile justice, taking into account the root causes of
delinquency, developmental immaturity, and greater potential for rehabilitation.
¶ 48 The courts and the legislature act within constitutional constraints regarding “[a]ll
penalties” with an eye toward both “the seriousness of the offense” and “the objective of restoring
the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Punishment for crime, yes, but
with the restoration of the offender into a constructive member of society for any sentence they
receive. Indeed, last year, our supreme court reaffirmed this commitment in the sentencing of
emerging adults: “Illinois law [has long] recognized the special status of juvenile offenders for
- 18 - No. 1-21-1190
purposes of applying the principles under the proportionate penalties clause.” (Internal quotation
omitted.) [CITATION], ¶ 41 (discussing [CITATION], ¶ 61).
¶ 49 After the ratification of the 1970 Illinois Constitution, the legislature crafted new
sentencing laws that fixed natural life for some violations of a new class of felonies, Class X. See,
e.g., 720 ILCS 5/33B-1 (West 2000) (now codified at 730 ILCS 5/5-4.5-95(a) (West 2022)). See
generally David H. Norris & Thomas Peters, Fiscal Responsibility and Criminal Sentencing in
Illinois: The Time for Change Is Now, 26 J. Marshall L. Rev. 317, 323-34 (1993) (discussing
history of tough-on-crime sentencing laws post-ratification).
¶ 50 Did Class X mean that some criminals are incapable of returning to useful citizenship? See
[CITATION] (asserting “[i]mplicit in this statute is a legislative determination that a three-time offender should be removed from society since he [or
she] is impervious to the rehabilitative efforts of the State”). Although our supreme court once
answered in the affirmative ([CITATION]), 30 years later,
the legislature and the courts have reduced the use of life sentences without the possibility of parole
for juvenile offenders, signifying a broad societal acknowledgment that offenders under 21 years
should not be subjected to the same harsh penalties as adults.
¶ 51 Over time, tough-on-crime laws precipitated an explosion in the prison population.
According to one study, the national population of people serving life sentences in 2020 exceeded
the size of the entire prison population in 1970, the year Illinois ratified its most recent constitution.
See People Serving Life Exceeds Entire Prison Population of 1970, The Sentencing Project (Feb.
- 19 - No. 1-21-1190
20, 2020), https://www.sentencingproject.org/publications/people-serving-life-exceeds-entire-
prison-population-1970/ [https://perma.cc/WP74-7WUY].
¶ 52 Among the many facing these unsparing sentencing laws was Denzal Stewart, whose
appeal in [CITATION], informs the majority’s analysis. In [CITATION], the
supreme court held that the legislature did not intend for a prior conviction like Stewart’s—for an
offense committed at age 17—to constitute a qualifying offense for Class X sentencing. Id. ¶ 22.
Relying on [CITATION], the majority holds the same amendments that impacted Stewart’s sentence
impacted Durant’s. Supra ¶ 37 (analyzing 720 ILCS 5/33B-1 (West 2000) and 730 ILCS 5/5-4.5-
95(a)(4)(E), (b)(4) (West 2022)). Holding otherwise, as the dissent would do (infra ¶ 59), thwarts
the proportionate penalties clause. See [CITATION], ¶ 40 (noting shared duty
of court and legislature to administer “[g]reat constitutional provisions” with “caution” (internal
quotation marks omitted)).
¶ 53 But we need not address that issue today. It is enough to follow the logic of [CITATION] and,
by doing so, heed Durant’s plea at his original sentencing hearing:
“I’d just ask the Court to show mercy, you know, give me another chance. That’s all I can
ask. I don’t know if the law permits it or whatever, but I just ask that you listen to it and
just show mercy.”
¶ 54 Properly understood, section 5-4.5-95(a) partially answers the question at the beginning of
[SEGMENT 22]
this special concurrence while also realizing the mercy Durant invocated.
¶ 55 JUSTICE LAVIN, dissenting:
¶ 56 For the reasons to follow, I respectfully dissent. First, the plain language of the habitual
criminal statute under which defendant was sentenced (720 ILCS 5/33B-1 (West 2004)) is simply
- 20 - No. 1-21-1190
not ambiguous. 4 Defendant has not identified any split of authority regarding that subsection of
the statute, as it stood at his sentencing. Cf. [CITATION]. Based on his
prior convictions of numerous Class X offenses, the statute clearly did apply. There was no age
limitation at all, and he met all the requirements for sentencing as a habitual criminal as delineated
below. See [CITATION], ¶¶ 33-34.
¶ 57 Second, even assuming any ambiguity existed, defendant cannot benefit from the
legislature’s recent amendment because the amendment was substantive and, thus, does not apply
retroactively. See [CITATION] (noting substantive changes to statutes
are prospective only); [CITATION] (noting “prospective
application promotes finality in sentencing by refusing to disturb charging and sentencing
decisions that were valid when imposed”); [CITATION], ¶¶ 29-31;
cf. [CITATION] (stating that a judicial decision establishing a
new constitutional rule applies retroactively where that rule narrows the scope of a criminal
statute). As the State notes, the age limitation for a mandatory natural life sentence under
subsection 5-4.5-95(a) of the Unified Code of Corrections and its predecessor subsections has
varied from (1) containing no age requirement (when defendant was sentenced in 2005), to
(2) requiring the defendant to be 18 years old at the time of the third Class X offense (starting in
2016), to (3) requiring the defendant to be 21 years old at the time of the first Class X offense and
eliminating the prior age requirement (starting on July 1, 2021). See [CITATION]; cf.
We note that section 33B-1 (720 ILCS 5/33B-1 (West 2004)) was repealed in 2009 and now
appears in section 5-4.5-95(a) of the Unified Code of Corrections. 730 ILCS 5/5-4.5-95(a) (West 2022);
Pub. Act 95-1052 (eff. July 1, 2009).
- 21 - No. 1-21-1190
Stewart, [CITATION] (addressing section 5-4.5-95(b), which required the defendant
to be 21 years of age even at the time he was originally sentenced).
¶ 58 For a person to have committed a third Class X offense at 18 years old after having been
separately convicted of two prior Class X offenses, that person necessarily had to have been a
juvenile at the time of those earlier convictions. As such, until July 1, 2021, an adult who had been
convicted of two prior Class X offenses as a juvenile could be sentenced under section 5-4.5-95(a)
to natural life following a third Class X offense at the age of 18 or older. [CITATION]
(noting statutory changes must have a beginning and may necessarily
exclude one group from benefitting from the amendment without violating the constitution). This
rebuts any possible inference that the legislature merely intended to clarify the statute. Cf. Stewart,
[CITATION] (noting that the previous version of the statute was silent, and the
legislative amendment clarified existing law).
¶ 59 Given the crucial differences between the legislative history behind subsection 5-4.5-95(a)
and subsection (b), Stewart’s reasoning regarding subsection (b) cannot logically be applied to the
changes made to subsection (a) by Public Act 101-652 (eff. July 1, 2021) (amending 730 ILCS
5/5-4.5-95(a), (b)). Moreover, Stewart did not even hold that its interpretation of subsection (b)
could apply retroactively to cases on collateral review. The only reasonable interpretation of the
changes to subsection 5-4.5-95(a) is that, the legislature made a deliberate choice to substantively
amend the habitual criminal statute’s requirements as to the age of the offender. See Stewart, [CITATION] (stating that “[t]he legislature’s
determination of a particular punishment for a crime in and of itself is an expression of the general
moral ideas of the people”). Thus, at the time defendant was sentenced in 2005, the legislature
- 22 - No. 1-21-1190
intended that his Class X convictions, even those he earned as a juvenile, be counted towards his
tally for sentencing as a habitual offender. See [CITATION], ¶¶ 10-11.
¶ 60 Here, the record shows that defendant committed his first armed robbery in 1985 at age 16,
two armed robberies in 1991 at age 22, and the offenses on which the instant conviction rests, an
armed robbery and vehicular highjacking, in 2001 at or around age 32. As to the 1985 offense
committed at age 16, defendant was sentenced as an adult and pleaded guilty to the offense.
Defendant has not shown that he should be subject to any special conditions as a result of his youth
or background as a youth, as he continued to habitually offend by committing Class X offenses
long into his adulthood. Nor has he established a violation of his due process rights. Consequently,
he has not shown the cause and prejudice necessary for leave to file a successive postconviction
petition. I would affirm the circuit court’s denial of leave to file defendant’s petition.
- 23 - No. 1-21-1190
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 01-CR-22873;
the Hon. Vincent M. Gaughan, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Christofer R. Bendik, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Douglas P. Harvath, and John E. Nowak, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
- 24 -
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
2023 IL App (1st) 200917
No. 1-20-0917
Opinion filed September 29, 2023.
First Division
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 19 CR 7197
)
DESHAWN WALLACE, ) The Honorable
) Ursula Walowski,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Coghlan concurred in the judgment and
opinion.
OPINION
¶1 Following a bench trial, defendant Deshawn Wallace was found guilty of being an armed
habitual criminal, in that he possessed a firearm with two prior qualifying felonies, and he was
sentenced to six years in prison. Defendant appeals contending that the trial court erred in
denying his motion to suppress because police lacked reasonable suspicion to frisk and then
search defendant for weapons. Defendant also contends the State failed to establish the statutory
elements of the armed habitual criminal statute beyond a reasonable doubt, therefore requiring
reversal of his conviction. We affirm.
No. 1-20-0917
¶2 BACKGROUND
¶3 Defendant was arrested after police stopped the vehicle in which he was a passenger and
ultimately found him in possession of a handgun for which he did not have a Firearm Owners
Identification (FOID) card (430 ILCS 65/0.01 et seq. (West 2018)) or a Concealed Carry License
(430 ILCS 66/1 et. seq. (West 2018)), as required. See People v. McMichaels, 2019 IL App (1st)
163053, ¶ 28. Defendant was charged with one count of being an armed habitual criminal, along
with other offenses.
¶4 Prior to trial, defendant filed a motion to suppress the inventoried weapon alleging police
lacked probable cause to conduct a search. Defendant called Chicago Police Officer Edward
Zeman, whose direct testimony and cross-examination revealed that he and his partner, a fellow
Chicago police officer, were on patrol May 2, 2019, due to a conflict between two street gangs
that had resulted in several shootings. Around 11 p.m., they stopped a car that had no rear brake
light. Officer Zeman, dressed in plain clothes, approached the front passenger side, where
defendant was seated, while his partner approached the driver’s side. As Officer Zeman
approached, he smelled alcohol and fresh cannabis emanating from the vehicle’s interior, which
contained three people, including defendant. Officer Zeman noted that it smelled like alcohol and
asked if they had been drinking, to which the rear passenger responded, yes. Officer Zeman
stated, “it smells like Remy” (a type of alcohol), and the rear passenger said yes and laughed. He
then observed a bag of fresh cannabis inside between the front passenger seat and center console,
just next to defendant’s leg. Officer Zeman noted that it was illegal to have open alcohol inside
the car; the narcotics and alcohol gave him a basis to search the vehicle.
¶5 During the encounter, defendant would not make direct eye contact with Officer Zeman,
his breathing was heavy, as his chest was moving up and down, and he “took a big swallow,” all
2
No. 1-20-0917
of which Officer Zeman found to be unusual. While defendant’s right hand was in his right lap
area, his left hand was moving by his left waist, near the center console towards the cannabis.
Officer Zeman then observed a “large bulge” in defendant’s front jacket pocket. That is, he could
see both the bulge and cannabis from his vantage point outside the vehicle.
¶6 Officer Zeman requested that defendant step out of the vehicle, but defendant did not
comply and appeared hesitant to exit the car. Defendant then asked why and offered that he
could simply give Officer Zeman his identification instead. Officer Zeman testified again that
defendant’s behavior was abnormal. He feared defendant might have a weapon, so he reached
into the car and performed a protective pat-down over the bulged area of defendant’s jacket
while defendant was still seated. Officer Zeman felt “a hard metal object consistent with a
handgun” and then recovered what was later revealed to be a loaded Bursa Thunder
semiautomatic handgun from defendant’s jacket pocket as Officer Zeman called over his partner.
His partner handcuffed defendant, and Officer Zeman searched the vehicle. Defendant admitted
that he did not have FOID card or Concealed Carry License. At the suppression hearing
defendant did not establish when he made this admission.
¶7 The vehicle’s driver was not arrested, although Officer Zeman believed she received a
ticket from his fellow officer. It was later revealed that the stop occurred at 3758 W. Chicago
Avenue, and police did indeed recover and inventory the cannabis, but not any alcohol. 1 When
Officer Zeman first approached the vehicle, the back window was down, but not the window by
defendant. Defendant also did not bend down under his seat or make any “furtive movements.”
Following this evidence, the defense rested.
1
This evidence was revealed at trial, where Officer Zeman briefly testified as a witness for the
defense. For the sake of readability, we have included it in the fact section involving the suppression
motion.
3
No. 1-20-0917
¶8 The State moved to admit Officer Zeman’s body worn camera (body cam), capturing the
traffic stop, and it was entered into evidence following a stipulation and played before the court.
Consistent with Officer Zeman’s testimony, the video shows him approaching the passenger-side
of the vehicle and affirms his interchange with the back right passenger, whose window was
almost half-way down. Officer Zeman queried, “You all just drinking?” to which the back right
passenger answered yes, while looking at Officer Zeman. When Officer Zeman further stated, “It
smells like Remy, right” that same passenger laughed, looked away, and said, “Yeah, exactly.”
The video also depicts Officer Zeman shining his flashlight and looking into both the rear
passenger seat and the front passenger seat. During this time, defendant gave a sideways glance
to Officer Zeman and then looked to his left and then straight forward.
¶9 The video further shows that as the driver exited the vehicle under the other officer’s
direction, Officer Zeman opened the front passenger door. Defendant continued to stare straight
forward and only made eye contact after Officer Zeman asked him to “hop out for me.”
Defendant hesitated. Instead of complying with the request, he looked down and then straight
forward while moving his left hand from the top of the center console down to the area,
apparently between his seat and the console, and he looked down toward that area a second time.
Defendant also took a visible gulp before turning to Officer Zeman and asking, “for what, you
want my ID?” Officer Zeman said no, that he asked defendant to step out because there was open
alcohol in the car, although he did not “care about the little bit of weed or whatever that you got
there, right.” Defendant looked down as Officer Zeman moved closer to defendant and
performed the protective pat down over defendant’s right jacket pocket (which showed a slight
bulge), unzipping the pocket, and recovering the handgun. Defendant remained seated with his
4
No. 1-20-0917
seatbelt on the entire time. Officer Zeman took the handgun and apparently unloaded it while his
partner handcuffed defendant, leading him to the police vehicle.
¶ 10 Defendant argued in closing that the police lacked probable cause to support the vehicle
stop and search of defendant. The defense noted the officer found the cannabis was of no
concern, and defendant had the right to question why he was being asked to exit the vehicle. The
defense argued, “[i]t was purely a stop to search anybody,” and there was no indication the
officer was in danger. The State countered that officers conducted a valid traffic stop for a
broken brake light, then smelled cannabis and alcohol emanating from the car, observed
defendant’s unusual behavior, as well as the bulge in his right pocket, all of which supported the
pat-down and search.
¶ 11 The trial court denied defendant’s motion to suppress. The court found Officer Zeman
testified credibly and consistently with the body cam video. The court found the traffic stop was
justified by the brake light violation and further found police had reasonable suspicion to
perform a protective pat-down of defendant while inside the vehicle given the visible bulge and
defendant’s actions. The court explained, “what I find is a significant point i[s] that when
[Officer Zeman] reached in[,] he went directly to that jacket pocket and patted it down[,] and he
explained the reason for that is because he saw the bulge there that corroborates the officer.”
Defendant filed a motion to reconsider, which was denied.
¶ 12 At trial, the parties stipulated that if called, Officer Zeman would testify as at the
previous suppression hearing. They also stipulated to the body cam video and records revealing
that defendant did not possess a FOID card or a concealed carry license. Finally, the State
entered certified copies of conviction showing defendant previously had been convicted of armed
robbery (08 CR 12591) and unlawful use of a weapon by a felon (15 CR 5613), and the defense
5
No. 1-20-0917
stipulated that these were defendant’s convictions. The State rested, and the defense called
Officer Zeman, who added a few details about the traffic stop. The defense then rested.
¶ 13 At the trial’s conclusion, the court found defendant guilty of being an armed habitual
criminal (count 1), and the other counts were merged into count 1. 2 Defendant moved for a new
trial, arguing the court erred in denying the motion to suppress, but this was denied. The court
sentenced defendant to six years in prison for being an armed habitual criminal. This appeal
followed.
¶ 14 ANALYSIS
¶ 15 Defendant first challenges the denial of his suppression motion. When reviewing the trial
court’s ruling on a motion to suppress evidence, we ordinarily apply a two-part standard of
review. People v. Eubanks, 2019 IL 123525, ¶ 33. We give great deference to the court’s factual
findings and will reverse them only if they are against the manifest weight of the evidence, while
we review de novo the court’s legal ruling on whether evidence should be suppressed. People v.
Cregan, 2014 IL 113600, ¶¶ 22, 23. A reviewing court may consider all trial evidence in
determining whether the court’s decision denying a motion to suppress was correct. People v.
Murdock, 2012 IL 112362, ¶¶ 35-36. To prevail at the trial level, the defendant bears the burden
of producing evidence and establishing a prima facie case that the search and seizure was
unreasonable before the burden then shifts to the State. Cregan, 2014 IL 113600, ¶ 23; People v.
2
The report of proceedings shows that the trial court found defendant guilty on counts 1-6, and
merged all counts into count 1 (armed habitual criminal). However, the court noted prior to sentencing
that it had found defendant guilty of counts 1-4 and 6-7, which merged into count 1. The court stated it
found defendant not guilty of count 5. The half sheet shows the trial court found defendant guilty of
counts 1-4 and counts 6-7, with all counts merging into count 1. The mittimus shows the trial court found
defendant guilty of counts 1-4 and count 6, with all counts merging into count 1. We find the oral
pronouncement at sentencing controls, and therefore defendant was found guilty of counts 1-4 and 6-7.
See People v. Clark, 2014 IL App (1st) 123494, ¶ 21.
6
No. 1-20-0917
Thornton, 2020 IL App (1st) 170753, ¶ 23. Also, the ultimate burden always remains with the
defendant. Thornton, 2020 IL App (1st) 170753, ¶ 23.
¶ 16 Defendant does not challenge the initial stop of the vehicle in which he was a
passenger, as there was probable cause for the police to believe a traffic violation occurred. See
People v. Hackett, 2012 IL 111781, ¶ 20. Rather, defendant contends that police lacked
reasonable suspicion to perform the subsequent protective pat-down of him. He maintains there
was no reason to believe he was armed and dangerous.
¶ 17 Both the United States Constitution and the Illinois Constitution protect every person
from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.
Reasonableness under the fourth amendment generally requires a warrant supported by probable
cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010); Thornton, 2020 IL App (1st) 170753, ¶ 23.
Probable cause exists where the facts and circumstances, considered as a whole, are sufficient to
justify the belief by a reasonably cautious person that the defendant is or has been involved in a
crime. People v. Hopkins, 235 Ill. 2d 453, 472 (2009). Nonetheless, a police officer may detain a
person without having a warrant with probable cause to arrest. Thornton, 2020 IL App (1st)
170753, ¶ 26. Specifically, a limited exception to the warrant requirement under Terry v. Ohio,
392 U.S. 1, 21-22 (1968), permits a police officer to briefly stop (and therefore necessarily seize)
a person for temporary questioning if he reasonably believes the person has committed, or is
about to commit, a crime. Thornton, 2020 IL App (1st) 170753, ¶ 26. Notably, the usual traffic
stop is analogous to a Terry investigative stop. People v. Jones, 215 Ill. 2d 261, 270 (2005).
¶ 18 In addition, it’s well established that following a lawful traffic stop, police can, as a
matter of course, order the driver and any passengers out of the vehicle while completing the
stop without violating any fourth amendment protections. Maryland v. Wilson, 519 U.S. 408, 415
7
No. 1-20-0917
(1997); People v. Sorenson, 196 Ill. 2d 425, 433 (2001). During the stop, officers may also
question the driver and passengers, provided the inquiries do not unnecessarily extend the
duration of the stop. People v. Sutton, 2020 IL App (1st) 181616, ¶ 21. An officer may then
subject a person to a limited search for weapons (“frisk”) only if he reasonably believes that
person is armed and dangerous. Sorenson, 196 Ill. 2d at 433; 725 ILCS 5/108-1.01 (West 2018).
This search is for the protection of the police officer and others in the vicinity, not to gather
evidence. Id. at 432. Whether the vehicle stop was valid is a separate inquiry from whether the
weapons frisk was valid. Sorenson, 196 Ill. 2d at 433.
¶ 19 For the frisk, reasonable suspicion must be based on commonsense judgment and
inferences about human behavior. People v. Salgado, 2019 IL App (1st) 171377, ¶ 31. Nervous,
evasive behavior or unusual conduct is a pertinent fact in determining reasonable suspicion, as is
the fact that the stop occurred in a high crime area. Id. ¶¶ 25, 31. Moreover, a “bulge in a validly
stopped suspect’s clothing is a circumstance which is generally sufficient to warrant a frisk.”
People v. Morales, 221 Ill. App. 3d 13, 18 (1991). In judging a police officer’s conduct, we
apply an objective standard, considering whether the facts available to the officer at the moment
of the seizure justify the action taken. Hackett, 2012 IL 111781, ¶ 29.
¶ 20 Here, the totality of the circumstances justified Officer Zeman’s limited search for
weapons from defendant. See Salgado, 2019 IL App (1st) 171377, ¶ 32; McMichaels, 2019 IL
App (1st) 163053, ¶¶ 22-23. First, Officer Zeman was justified in ordering the occupants out of
the vehicle while completing the stop, and moreover, had probable cause to search the vehicle
for alcohol given the smell emanating from inside and that the passenger essentially admitted
consuming alcohol therein. See Wilson, 519 U.S. at 415; Sorenson, 196 Ill. 2d at 433.
8
No. 1-20-0917
¶ 21 Second, defendant’s hesitation following this lawful request, combined with Officer
Zeman’s observations that defendant refused to make direct eye contact during the encounter,
exhibited heavy breathing, made a large gulp, and moved his left hand by the center consul and
his left waist, and significantly, had a large bulge in his front jacket pocket, presented Officer
Zeman with reasonable suspicion that defendant was presently armed and dangerous. See
Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (finding a large bulge in the defendant’s
jacket pocket justified the protective pat down); McMichaels, 2019 IL App (1st) 163053, ¶23;
Salgado, 2019 IL App (1st) 171377, ¶¶ 31-32. This was so much so that Officer Zeman reached
into the car to perform the protective pat-down over the bulged area as defendant was seated, and
Officer Zeman specifically testified that he feared defendant had a weapon. Cf. People v. Smith,
2015 IL App (1st) 131307, ¶ 36 (noting, the defendant’s furtive movement in the vehicle, alone,
was insufficient to support the vehicle search, where the officer failed offer specific and
articulable facts supporting he feared for his safety); People v. Surles, 2011 IL App (1st) 100068,
¶¶ 10, 40 (finding protective pat-down search unlawful where officers testified they do
“protective pat downs on basically everybody” and the defendant did not display conduct
creating fear or threat of violence).
¶ 22 Officer Zeman then felt a hard metal object consistent with a handgun, and on further
search, his suspicions were confirmed since defendant was indeed carrying a semiautomatic
handgun, admittedly without the appropriate licensure. In addition, it was late evening, officers
were patrolling the area due to a gang conflict resulting in several shootings, and Officer Zeman
testified that in his experience, defendant’s behavior was unusual. See Salgado, 2019 IL App
(1st) 171377, ¶ 25; cf. People v. Davis, 352 Ill. App. 3d 576, 581-83 (2004) (finding the officer
had no reason to believe the defendant was armed and dangerous, where the defendant was
9
No. 1-20-0917
compliant with the officer’s requests, it was not a high-crime area, the defendant only exhibited
some nervousness, and he could have placed his hand in his pocket for any number of innocent
reasons).
¶ 23 Again, “when an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to the officer or
others, the officer may conduct a pat-down search to determine whether the person is in fact
carrying a weapon.” Sorenson, 196 Ill. 2d at 432; Salgado, 2019 IL App (1st) 171377, ¶ 17.
Indeed, it’s well-recognized that roadside encounters between police and suspects are especially
hazardous. Smith, 2015 IL App (1st) 131307, ¶ 24. Plus, we give due weight to the specific
reasonable inferences an officer is entitled to draw from the facts in light of his experience.
Sorenson, 196 Ill. 2d at 433. The trial court did just that, finding Officer Zeman credible and his
actions objectively reasonable based on the specific and articulable facts that defendant was
illegally armed. See Wilson, 519 U.S. at 411 (noting, the touchstone of a fourth amendment
analysis is always reasonableness); McMichaels, 2019 IL App (1st) 163053, ¶ 22 (noting the
Terry standard). While any of these factors alone might not have been sufficient to justify the
search, together they were. The opposite conclusion is not warranted, and therefore, the trial
court’s finding was not against the manifest weight of the evidence. See Davis, 352 Ill. App. 3d
at 579. Defendant did not fulfill his burden of producing evidence establishing that the search
and seizure were unreasonable. See Cregan, 2014 IL 113600, ¶ 23; Thornton, 2020 IL App (1st)
170753, ¶ 23.
¶ 24 In reaching this conclusion, we reject defendant’s suggestion that the officers were
required to first determine if defendant was carrying a FOID card and Concealed Carry license
before conducting the protective pat-down, search for weapons, and detention pursuant to Terry.
10
No. 1-20-0917
In so arguing, defendant relies on two cases which have since been vacated and do not represent
authoritative law. See Salgado, 2019 IL App (1st) 171377, ¶ 33 (rejecting a similar argument).
He also relies on an Illinois dissent and inapposite cases from other jurisdictions. Thus, he has
not adequately supported his contention with binding or relevant authority, violating our supreme
court rules. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (requiring an appellant’s argument to
contain the contentions of the appellant and reasons therefor, with citation of the authorities
relied on, and noting points not argued are forfeited and shall not be raised in the reply brief).
¶ 25 Notwithstanding that, the existence of a possible innocent explanation, like defendant’s
possession of the required gun licenses, did not negate reasonable suspicion in this case given the
totality of factors presented to the police. See supra, ¶¶ 21-23; McMichaels, 2019 IL App (1st)
163053, ¶ 32; People v. Thomas, 2019 IL App (1st) 170474, ¶ 39. Defendant’s hesitancy and
unusual behavior, together with his failure to volunteer that he had the requisite gun licensure,
inspired suspicion that defendant illegally possessed the gun. See McMichaels, 2019 IL App
(1st) 163053, ¶ 38; People v. Hood, 2019 IL App (1st) 162194, ¶ 71. Absolute certainty was not
required, and the frisk in this case was no more than necessary to secure officer safety given the
practical considerations of everyday life, as a dead or shot police officer cannot request licensure.
See Salgado, 2019 IL App (1st) 171377, ¶¶ 36; McMichaels, 2019 IL App (1st) 163053, ¶¶ 34-
35 (noting, public policy demands that police must be safe in the performance of their duties).
¶ 26 Last, defendant did not offer evidence or argument about when the detention in this case
transformed into an arrest, or exactly when officers established that defendant lacked the
requisite licensure. See People v. Colyar, 2013 IL 111835, ¶ 46 (handcuffing does not
automatically transform a Terry stop into an illegal arrest); McMichaels, 2019 IL App (1st)
163053, ¶ 37. As a result, his claim that officers arrested him first without inquiring about the
11
No. 1-20-0917
gun licensure is not well-taken. As set forth, the burden of establishing an unreasonable search
and seizure remained with defendant.
¶ 27 Defendant also argues the body cam footage did not corroborate Officer Zeman’s
testimony that defendant was breathing heavily or in an unusual pattern. He maintains the body
cam footage established that defendant avoided making eye contact in part due to Officer Zeman
waving a flashlight in his face.
¶ 28 Having viewed the body cam video in full, we disagree. The video shows defendant
displaying nervous, evasive behavior that was very much at odds with the back passenger, who
made ready eye contact with Officer Zeman, notwithstanding that the flashlight was shown in his
face several times. This weakens defendant’s flashlight argument. We also note that the video
mostly shows defendant from a side view and the shoulder up, so would not capture heavy
breathing or every detail perceived by Officer Zeman. For example, there were periods when
defendant was obscured by the glare of the flashlight or Officer Zeman was not directly facing
him with his body worn camera. Notwithstanding that, the video does capture the visible gulp
defendant takes before further delaying his exit from the vehicle. Moreover, the trial court found
Officer Zeman credible, and that the video corroborated Officer Zeman’s testimony in significant
respects without contradicting it. We cannot say that determination is against the manifest weight
of the evidence.
¶ 29 For all these reasons, defendant’s fourth amendment claim fails.
¶ 30 Armed Habitual Criminal
¶ 31 Defendant next contends he was improperly convicted of being an armed habitual
criminal because the State failed to establish a necessary predicate conviction. Defendant notes
the facts are not in dispute but only whether those facts satisfy the elements of the armed habitual
12
No. 1-20-0917
criminal statute. The interpretation of a statute presents a question of law, which we review de
novo. People v. Bradford, 2016 IL 118674, ¶¶ 14-15; People v. Allen, 322 Ill. App. 3d 724, 725
(2001). Section 24-1.7 of the Criminal Code of 2012 (Code) (720 ILCS 5/24-1.7 (West 2018))
provides:
“(a) A person commits the offense of being an armed habitual criminal if he *** possesses ***
any firearm after having been convicted a total of 2 or more times of any combination of the
following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon; aggravated
discharge of a firearm; vehicular hijacking; aggravated vehicular hijacking; aggravated battery of
a child as described in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05; intimidation;
aggravated intimidation; gunrunning; home invasion; or aggravated battery with a firearm as
described in Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that is
punishable as a Class 3 felony or higher.” 3 Id. Being an armed habitual criminal is a Class X
felony. Id.
¶ 32 Here, defendant’s conviction for armed habitual criminal was based on the two prior
predicate offenses of unlawful use of a weapon by a felon (case No. 15 CR 5613) and armed
robbery with a firearm (Case No. 08 CR 12591). Armed robbery with a firearm is a forcible
felony under the armed habitual criminal statute. See 720 ILCS 5/24-1.7(1) (West 2018); 720
3
“ ‘Conviction’ means a judgment of conviction or sentence entered upon a plea of guilty or upon
a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of
competent jurisdiction authorized to try the case without a jury.” 720 ILCS 5/2-5 (West 2018).
13
No. 1-20-0917
ILCS 5/2-8 (West 2018). 4 Defendant challenges only the State’s reliance on the armed robbery
offense. He argues that he was age 17 when he committed the armed robbery with a firearm, and
at present, any resultant guilty finding would be a juvenile adjudication, rather than a
“conviction.” See 705 ILCS 405/5-120 (West 2018); People v. Stewart, 2022 IL 126116, ¶ 22;
see also People v. Taylor, 221 Ill. 2d 157, 176 (2006) (noting, juvenile adjudications do not
constitute convictions). He therefore contends the State failed to prove beyond a reasonable
doubt that his armed robbery offense was a predicate “conviction” under section 24-1.7 of the
armed habitual criminal statute. We disagree.
¶ 33 We look first to the plain language of section section 24-1.7, so as to give effect to the
legislature’s intent. The best indication of legislative intent is the statutory language, given its
plain and ordinary meaning. People v. McChriston, 2014 IL 115310, ¶ 18. Where, as here, the
language of the statute is clear and unambiguous, we will apply the statute without resort to
further aids of statutory construction. Id. In addition, we will not read into the statute exceptions,
conditions, or limitations not expressed by the legislature. In re N.C., 2014 IL 116532, ¶ 50.
Section 24-1.7 provides that a defendant is guilty of being an armed habitual criminal “after
having been convicted” of several enumerated predicate felonies, including “a forcible felony as
defined in Section 2-8 of this Code.” 5 “Having been convicted” is a perfect passive participle
construction and used to emphasize that a first action (here, a conviction) has been completed
4
“ ‘Forcible felony’ means treason, first degree murder, second degree murder, predatory
criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery,
burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated
battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which
involves the use or threat of physical force or violence against any individual.” 720 ILCS 5/2-8 (West
2018).
5
“Conviction” means a judgment of conviction or sentence entered upon a plea of guilty or upon
a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of
competent jurisdiction authorized to try the case without a jury. 720 ILCS 5/2-5 (West 2018).
14
No. 1-20-0917
before the second action begins (being found an armed habitual criminal). See
www.thelatinlibrary.com/101/Participles.pdf. Grammatically, it is the equivalent of saying, “if
he/she was convicted.”
¶ 34 In addition, under subsection (a)(1) of the statute (“a forcible felony as defined in Section
2-8 of this Code”), the predicate offense still must constitute a crime when the defendant illegally
possesses the very firearm that triggers application of the armed habitual criminal statute. For
example, armed robbery was a forcible felony when defendant committed that crime in 2008,
and it remained a forcible felony when defendant committed the offense of being an armed
habitual criminal in 2019. See 720 ILCS 5/2-8 (West 2018). As such, it could rightfully serve as
a qualifying predicate conviction underlying defendant’s present offense. Indeed, it is well
established that a defendant found guilty of being an armed habitual criminal is punished for the
new and separate crime of possessing a firearm, not for his prior acts or convictions. People v.
Bailey, 396 Ill. App. 3d 459, 463 (2009); People v. Leonard, 391 Ill. App 3d 926, 931 (2009).
The prior convictions serve only as elements of the new crime. Id.; see also People v. Davis, 408
Ill. App. 3d 747, 751 (2011) (noting, “a defendant’s prior crimes count as elements of a violation
of the armed habitual criminal statute”).
¶ 35 Here, it is beyond dispute that defendant committed the predicate offense of armed
robbery in 2008 at age 17, and the guilty finding for that offense resulted in a conviction in adult
criminal court (not juvenile court). Later, in 2014, the legislature amended the juvenile statute, so
that an armed robbery offense committed at age 17 would result in only a juvenile adjudication.
See Stewart, 2022 IL 126116, ¶ 7. While defendant would like us to read that amendment into
the armed habitual criminal statute, we cannot. The amendment is not retroactive, and
defendant’s “invitation is one for the legislature, not this court.” People v. Irrelevant, 2021 IL
15
No. 1-20-0917
App (4th) 200626, ¶ 37; 705 ILCS 405/5-120 (West 2018); see also 5 ILCS 70/4 (West 2018). In
other words, no rule of construction authorizes this court to declare that the legislature did not
mean what the plain language of the statute imports, nor may we rewrite a statute to add
provisions or limitations the legislature did not include. People v. Smith, 2016 IL 119659, ¶ 28.
In view of the plain language of the armed habitual criminal statute and the fact that it references
past convictions for predicate offenses, we conclude that defendant was “convicted” of armed
robbery in 2008 (which remained a forcible felony in 2019), and this was sufficient to serve as a
predicate offense to being an armed habitual criminal. Accord Irrelevant, 2021 IL App (4th)
200626, ¶¶ 35-37; see also Fitzsimmons v. Norgle, 104 Ill. 2d 369, 372-73 (1984) (a juvenile
defendant subject to adult court may have a “conviction”).
¶ 36 In reaching this conclusion, we reject defendant’s reliance on People v. Gray, 2021 IL
App (1st) 191086. In Gray, the court held that the defendant’s narcotics delivery offense,
committed when he was age 17 in 2002, could not serve as a predicate for being an armed
habitual criminal based on the plain language of subsection (a)(3) of the statute. See 720 ILCS
5/24-1.7(a)(3) (West 2018) (noting, a predicate offense is “any violation of the Illinois
Controlled Substances Act or the Cannabis Control Act that is punishable as a Class 3 felony or
higher” (Emphasis added.)). Gray observed that the narcotics offense, if committed in 2016,
would have resulted in a juvenile adjudication and not a conviction due to the 2014 legislative
amendment to the juvenile statute. See Stewart, 2022 IL 126116, ¶ 7. The court reasoned, “In
view of the changes to the Juvenile Court Act of 1987, for most offenses age of the defendant
operates as an element of the offense.” Gray, 2021 IL App (1st) 191086, ¶ 15. Honing in on that,
plus the present tense language of subsection (a)(3), Gray held that the 2002 drug offense was
not a predicate offense, and the State failed to prove defendant guilty of being an armed habitual
16
No. 1-20-0917
criminal. See also Dawson, 2022 IL App (1st) 190422, ¶ 48 (holding armed robbery by a 17-
year-old was not a predicate offense for being an armed habitual criminal).
¶ 37 Gray is not controlling. We disagree with Gray that age operates as an element of the
armed habitual criminal offense. Not every prerequisite to a conviction constitutes an element to
an offense. Rather, there are two essential elements in all criminal offenses, (1) a voluntary act
(720 ILCS 5/4-1 (West 2018)) and (2) a mental state (720 ILCS 5/4-3 (West 2018)). People v.
Taylor, 68 Ill. App. 3d 680, 684 (1979) (“Criminal liability, with the exception of so-called strict
liability crimes, is dependent upon the simultaneous occurrence of the defendant’s requisite
mental state and the criminal act”).
¶ 38 Under section 24-1.7 of the Code, an armed habitual criminal is a person who knowingly
possesses a firearm after already being convicted of two qualifying offenses. See id.; see also
720 ILCS 5/4-2 (West 2018) (defining possession as a voluntary act); People v. Ramirez, 2023
IL 128123, ¶ 22 (noting, “when a possessory offense does not prescribe a particular mental state
and is not an absolute liability offense, knowledge is the appropriate mental state”). Thus, the
elements of the offense include (1) knowing possession of a firearm and (2) the aforementioned
two past qualifying convictions. Age is simply not included in the “voluntary act,” and as such,
is not an element of the offense. 6 In fact, the statute does not contain any reference to age. Cf.
730 ILCS 5/5-4.5-95 (West Supp. 2021). Rather, “[a]ge *** is merely the factor which
authorizes the application of the juvenile system,” which is part of the unified circuit court. In re
Greene, 76 Ill. 2d 204, 212-13 (1979). Whether a person is tried in juvenile or criminal court is a
matter of procedure. People v. DeJesus, 127 Ill. 2d 486, 498 (1989). Thus, as the State notes,
6
Age also is not an element of a forcible felony. See 720 ILCS 5/2-8 (West 2018).
17
No. 1-20-0917
“defendant’s age does not change the fact that he was ‘convicted,’ nor does it change the fact that
armed robbery is a forcible felony.”
¶ 39 We also find defendant’s reliance on Stewart, 2022 IL 126116, misplaced. Stewart, while
addressing a similar issue involving predicate offenses committed by juveniles, dealt with an
entirely different statute, that involving Class X sentencing under the Unified Code of
Corrections:
“(b) When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after
having twice been convicted in any state or federal court of an offense that contains the same
elements as an offense now (the date the Class 1 or Class 2 forcible felony was committed)
classified in Illinois as a Class 2 or greater Class felony and those charges are separately brought
and tried and arise out of different series of acts, that defendant shall be sentenced as a Class X
offender.” 730 ILCS 5/5-4.5-95(b) (West 2016).
¶ 40 Although the Class X sentencing statute similarly required at least two predicate offenses
before it could be utilized, that statute addresses a sentencing enhancement and not substantive
offenses. See Leonard, 391 Ill. App 3d at 932. The Class X sentencing statute “simply
prescribe[s] the circumstances under which a defendant found guilty of a specific crime may be
more severely punished because that defendant has a history of prior convictions,” but the
convictions are not elements of the most recent felony offense. People v. Dunnigan, 165 Ill. 2d
235, 242 (1995). The State has no burden to prove these convictions beyond a reasonable doubt.
People v. Levin, 157 Ill. 2d 138, 156 (1993). Plus, in evaluating the enhancement, the Class X
sentencing statute expressly calls for a reassessment of the prior conviction (using the language,
“an offense that contains the same elements as an offense now *** classified in Illinois”),
whereas the armed habitual criminal statute does not. Moreover, in Stewart, the supreme court
18
No. 1-20-0917
found the Class X sentencing statutory language ambiguous and the matter resolved by
subsequent legislation, which added a subsection elucidating that the first qualifying offense for
Class X sentencing must have been committed when the person was 21 years of age or older.
The court found this legislation was intended to clarify the statute’s meaning. Stewart therefore
held that “defendant’s 2013 conviction for an offense committed when he was 17 years old was
not a qualifying offense for Class X sentencing.” Id. ¶ 22.
¶ 41 As set forth, we do not find the statute in this case ambiguous, and even if we did, there is
no subsequent legislation resolving the matter in defendant’s favor. See People v. Dawson, 2022
IL App (1st) 190422, ¶ 23, appeal pending (discussing the legislative history of the armed
habitual criminal statute); see also In re J.L., 236 Ill. 2d 329, 341 (2010) (noting, “where the
legislature has employed a term in one place and excluded it in another, it should not be implied
where excluded”).
¶ 42 We further note that Gray was issued on October 12, 2021. The supreme court issued
Stewart on October 20, 2022, and then granted the petition for leave to appeal in Gray a month
later, on November 30, 2022. See People v. Gray, No. 127815 (Nov. 30, 2022). To us, this
suggests that Stewart is not controlling in regards to the armed habitual criminal statute.
¶ 43 Last, we reject defendant’s contention that his defense counsel was constitutionally
ineffective. Defendant argues that counsel was ineffective “for stipulating that [he] had been
convicted of two qualifying felony offenses,” but his claim fails for several reasons. First, we
observe that defense counsel merely stipulated that defendant had been convicted of the two
prior offenses but did not stipulate they were “qualifying.” Second, to succeed on such an
ineffective assistance claim, the defendant must establish that counsel’s representation was
deficient and but for the deficiency, there is a reasonable probability the trial result would have
19
No. 1-20-0917
been different. People v. Domagala, 2013 IL 113688, ¶ 36. In this case, defendant cannot show
that counsel’s stipulation was objectively unreasonable under prevailing professional
norms given the state of the law at the time of his February 26, 2020, trial. See id.; People v.
English, 2013 IL 112890, ¶ 34. At the time of defendant’s trial, “case law squarely supported the
principle that a conviction obtained when a criminal defendant was a minor could be used as a
qualifying predicate offense, and that a conviction is a conviction, regardless of the criminal
defendant’s age.” 7 See People v. Williams, 2021 IL App (1st) 191615, ¶ 30. Again, Gray was not
decided until 2021. We note that counsel is not incompetent for failing to accurately predict that
existing law will change. English, 2013 IL 112890, ¶ 34. Defendant therefore has failed to
establish defense counsel’s deficiency, so his ineffective assistance of counsel claim must fail.
¶ 44 CONCLUSION
¶ 45 For the reasons stated, we affirm the judgment of the circuit court.
¶ 46 Affirmed.
We note that People v. Miles, 2020 IL App (1st) 180736, which is the only case that could have
7
conceivably supported defendant’s current argument, was decided on January 17, 2020, but rehearing was
denied on March 25, 2020, after defendant’s trial. Miles also addressed the Class X sentencing statute, not
the armed habitual criminal statute.
20
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
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Law
9882730
[SEGMENT 1]
[Cite as [CITATION].]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF OHIO
M.E.K., :
Plaintiff-Appellee, : No. 112942
v. :
P.K., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
RELEASED AND JOURNALIZED: March 14, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-357855
Appearances:
Stafford Co., L.P.A., and Joseph G. Stafford, Nicole A.
Cruz, and Kelley R. Tauring, for appellee.
P.K., pro se. SEAN C. GALLAGHER, J.:
P.K.1 appeals the domestic relations court’s judgment entry disposing
of several post-decree motions that in pertinent part modified the child support
obligation and reallocated parental rights to M.E.K. Although M.E.K. initially
appeared in this appeal to challenge husband’s motion to stay enforcement of the
order, she has not filed an appellate brief. Under App.R. 18(C), this panel is
permitted to “accept the appellant’s statement of the facts and issues as correct and
reverse the judgment if appellant’s brief reasonably appears to sustain such action.”
For the following reasons, and after reviewing the arguments as presented and the
relevant portions of the record, we affirm in part, reverse in part, and remand for
further proceedings.
According to P.K.’s statement of the case, he filed a motion to modify
a parenting order, attempting to obtain temporary custody of his children, in 2019.
Based on that motion, a guardian ad litem (“GAL”) was appointed on behalf of the
children, and the matter was set for hearing. The GAL was originally appointed in a
dual capacity as a GAL and attorney for the children, who were also made parties to
the action under Civ.R. 75(B)(2). The trial court later clarified that the GAL was not
serving as an attorney for the children, citing Ohio Rules of Superintendence
48.02(E),2 but no order rescinding the earlier decision to join the children as parties
In order to protect the children’s identity, the parents’ names are not used.
That rule provides: “If a court appoints a guardian ad litem in an allocation of
parental rights and responsibilities case, the guardian ad litem shall be appointed only to or appointing them new counsel has been identified. Throughout that time, P.K.
represented himself. M.E.K. filed a motion for attorney fees, challenging P.K.’s
conduct. In 2020, P.K. hired counsel, who withdrew in 2022. [CITATION], ¶ 3. In March 2023, a hearing on the
motion was held.
According to the magistrate’s decision, the parties were divorced in
2016 after approximately 11 years of marriage. The couple have three children. The
final judgment entry of divorce provided, upon agreement of the parties, that M.E.K.
would be the sole legal custodian and residential parent of the children. P.K. had
weekly visitation on Wednesday afternoons and alternating weekends. The children
did not fare well after the divorce. According to the magistrate’s findings of fact,
they “began to exhibit signs of developmental challenge and extreme alienation”
from M.E.K. The children’s “devotion” to P.K. was described as “cult-like.” M.E.K.
attempted to engage the children in therapy but was sabotaged by P.K.
The GAL investigated the situation and recommended that all visits
between P.K. and the minor children be supervised and all telephone contact
between the minor children and P.K. be monitored. After review of the GAL’s report,
all visitation between P.K. and the minor children was temporarily suspended out
of concern for their well-being. The GAL released a supplemental report and
recommendation concluding that each child had individually improved their well-
represent the best interest of the child and shall not also be appointed as the attorney for
the child.” being and their relationship with M.E.K. following the suspension of P.K.’s
visitations. The children’s mental health was described as fragile, with ongoing
therapy and limited visitation with P.K. recommended.
As the evidence presented at the hearing demonstrated, according to
the magistrate’s findings of facts, P.K. himself was undergoing mental health
treatment because he suffered from “anxiety and depression due to the situational
stress of the pending domestic relations litigation.” He also presented with
schizotypal personality disorder traits (“STPD”), and according to one of his treating
mental health professionals, “demonstrated limited insight into how his attitudes
and behaviors impacted others.” STPD “is a mental health condition manifested by
a consistent pattern of intense discomfort with close relationships and social
interactions; people with STPD possess distorted views of reality, superstitions and
unusual behaviors.” P.K. hired a second mental health professional to review
transcripts of the telephone conversations between P.K. and his children. Upon her
review, she opined that P.K.’s “discussions with the minor children ‘were not helpful
to [the minor children’s] mental health and were clearly inappropriate.’”
In response to P.K.’s motion to modify his parental rights, M.E.K.
filed a motion seeking attorney fees and a motion to modify the visitation schedule.
Those motions were also discussed and considered along with P.K.’s motion, along
with a bevy of other motions not relevant to this appeal. With respect to the attorney
fees and litigation expenses, M.E.K. claimed that P.K.’s conduct delayed the proceedings and required significant and well-researched responses. M.E.K. sought
$136,000 in compensation.
The magistrate issued a thorough decision resolving several
outstanding motions, but as pertinent to this appeal, the magistrate denied P.K.’s
motion to modify his parental rights, citing the children’s best interest, granted
M.E.K.’s motions for attorney fees and to modify visitation, and granted the GAL’s
requested fees. The magistrate concluded that M.E.K.’s request for attorney fees
was too broad and relied on a “heavily redacted” fee bill that included work
performed for other issues or was otherwise too vague to constitute demonstrative
proof of the fees expended. According to the magistrate, “the fee bill was redacted
to the extent that this Court cannot reasonably determine who provided what
services, and at what rate. Specifically, when reviewing each item, time is noted, but
there is no dollar amount applied to each service.” The magistrate then noted
several other material issues with the evidence M.E.K. submitted to support her
request for $136,000 in attorney fees. The magistrate awarded $12,500 in attorney
fees to M.E.K. as being reasonable and equitable for M.E.K.’s counsel’s services
related to the current litigation and based on weighing P.K.’s conduct against
M.E.K.’s counsel’s conduct, described as unnecessarily delaying the proceedings ten
months through his claimed “heavy schedule.”
Both parties objected to the magistrate’s decision. The domestic
relations court adopted the magistrate’s decision denying P.K.’s motion to modify
his parental rights, but the court sustained in part M.E.K.’s objection to the award of attorney fees, increasing the amount of attorney fees to $40,000 based on P.K.’s
conduct in the underlying litigation and because P.K. did not “object to the
reasonableness of the services rendered.” No explanation of how the court arrived
at the $40,000 in fees was provided.
This appeal timely followed. P.K., proceeding pro se, raises three
arguments in which he claims that (1) the children were deprived of their right to an
attorney throughout the proceedings; (2) the domestic relations court erred by
awarding the GAL her fees; and (3) the domestic relations court erred by increasing
the award of attorney fees without considering the statutory factors and by solely
relying on P.K.’s conduct and ignoring M.E.K.’s counsel’s dilatory behavior.3
P.K. first argues that the domestic relations court erred by failing to
appoint counsel to represent the minor children to preserve the children’s wishes.
He claims this failure is structural, requiring a reversal.
Generally, children are not parties to divorce proceedings or the
ancillary custody matters. See [CITATION],
13 N.E.3d 1146, ¶ 1 (holding that a child is not a proper party in a divorce action or
P.K. and the children suffer from mental health issues necessitating treatment.
The domestic relations court modified P.K.’s custody and visitation based on his failure
to recognize the impact his issues have on the children, but that conclusion was based on
the children’s and P.K.’s separate treatment providers, who all reached the same
conclusion. The domestic relations court modified the visitation schedule but permitted
P.K. to offer a change in circumstances if the children’s and his healthcare providers agree
that it would be in the children’s best interest. P.K. also argues that this panel should
order the domestic relations court to appoint one neutral healthcare provider to render
an opinion on all of their health concerns. That is well beyond the power of this court.
Given the complexity of mental health issues and the nuances of providing professional
services to children and adults, it is not a court’s place to dictate treatment options. its ancillary custody proceedings). Civ.R. 75(B)(2) authorizes the appointment of
[SEGMENT 2]
counsel for the children under the court’s discretionary authority. If “it is essential
to protect the interests of a child, the court may join the child of the parties as a party
defendant and appoint a guardian ad litem, and legal counsel, if necessary for the
child and tax the costs.” Civ.R. 75(B)(2). The appointment of counsel for the
children is within the trial court’s discretion but is not a mandatory obligation.
In this case, the domestic relations court originally joined the children
as parties to the post-decree action and appointed a GAL to represent the best
interest of the three children and to act as their attorney. The trial court later
clarified that the GAL was not serving as an attorney for the children citing Ohio
Rules of Superintendence 48.02(E), which precludes the GAL from acting in that
dual capacity in an allocation of parental rights case, but no order rescinding the
earlier decision to join the children as parties or appointing them new counsel has
been identified.
P.K. asks for the children’s lack of counsel to be declared structural
error, but he has not provided any authority for review specific to a child’s right to
counsel in post-decree custody proceedings. Nor has he addressed any of the factors
under Cuyahoga Domestic Relations Loc.R. 40 necessitating legal counsel to be
appointed for the children. Importantly, P.K. has not presented any discussion as
to why the children required legal counsel during the underlying proceedings. It is
not the role of an appellate court to flesh out underdeveloped arguments on behalf
of one of the parties. See [CITATION] 4034, 19 N.E.3d 900, ¶ 19, citing [CITATION]. We are limited based
on the argument presented, which superficially describes a constitutional right to
counsel under the federal Constitution.
As the Ohio Supreme Court has concluded, “[t]he court’s authority to
appoint a GAL enables it to protect the child’s interests in innumerable ways.” In re
A.G. at ¶ 75, citing [CITATION] and [CITATION]. This provides
the domestic relations court “considerable latitude” to “manage the litigation itself
in a manner that will also achieve what is in the child’s best interest.” Id.
P.K.’s entire argument focuses on the procedural fact that the children
lacked independent counsel, but he has not identified anything in the record
demonstrating that the children were prejudiced or that their best interests were not
adequately represented by their legal guardian and through the appointment of the
GAL acting solely in that capacity. Upon review of the record, it is clear that the GAL
represented the children’s best interest, and nothing demonstrates that
appointment of legal counsel was necessary. There is no error, plain or otherwise.
Related to the GAL’s representation, P.K. also argues that his
obligation to pay half of her fees was in error. P.K. has not cited any authority to
support his claim that there is no procedure authorizing the domestic relations court to impose the GAL’s fees on the parties. See App.R. 16(A)(7). Inasmuch as the
argument was presented in the conclusory fashion, it must be overruled. In short,
despite the lack of appellate briefing from M.E.K., we cannot conclude that P.K.’s
brief reasonably demonstrates the existence of reversible error with respect to the
children’s right to counsel or the award of fees to the GAL appointed in the
underlying proceedings. The first two arguments are overruled.
And finally, P.K. argues that the domestic relations court erred by
increasing the award of attorney fees without considering the statutory factors, such
as the income disparity favoring M.E.K., and by solely relying on P.K.’s conduct
while at the same time ignoring M.E.K.’s counsel’s dilatory behavior throughout the
same time period, which the magistrate considered as weighing on the decision to
award a lesser amount of fees and expenses than requested by M.E.K.
M.E.K. sought fees and expenses under R.C. 3105.73(B), which
provides that in a post-decree motion or proceeding arising out of a divorce action,
“the court may award all or part of reasonable attorney’s fees and litigation expenses
to either party if the court finds the award equitable.” In determining whether an
award of attorney fees and expenses is equitable, the court may consider the parties’
income, conduct, and any other relevant factors deemed appropriate. R.C.
3105.73(B). “An award of attorney fees under R.C. 3105.73(B) lies within the sound
discretion of the trial court.” [CITATION], ¶ 43, citing [CITATION], ¶ 15, and [CITATION]
====== End of Instruction ====== [CITATION]. “[I]n order for a party to prevail on a claim for
attorney’s fees, the moving party must demonstrate that the fees were reasonable
and necessary.” [CITATION], and [CITATION].
In this case, the magistrate presented an unflattering, but thorough,
description of the evidence submitted in favor of M.E.K.’s request for $136,000 in
attorney fees and litigation expenses supposedly expended in the post-decree
proceedings. According to the magistrate’s conclusion, “the fee bill was redacted to
the extent that this Court [could not] reasonably determine who provided what
services, and at what rate. Specifically, when reviewing each item, time is noted, but
there is no dollar amount applied to each service.” In addition, M.E.K. included
billing for services rendered in other matters, which were pending before other
courts, based on the description of services rendered. In other line items, the
magistrate noted that the billing included significant research and review periods
for ambiguous services. The magistrate found that “review and organize file” was
billed 35 times for “unreasonable amounts of time” and without providing context
for the services. Despite the noted deficiencies, the magistrate awarded M.E.K.
$12,500 for fees it found to be reasonable and equitable.
M.E.K. objected to the magistrate’s findings of fact and conclusions of law claiming she was entitled to $130,477.80 in attorney fees and expenses based
on a redacted fee bill because in [CITATION], the Ohio Supreme
Court concluded R.C. 149.43(A)(1)(v) exempts a school district from having to
disclose itemized attorney-fee bills through a public records request. According to
M.E.K., the magistrate was not authorized to punish her for submitting the “heavily
redacted” fee bill because she had a right to protect her attorney-client privilege
despite her request for fees. She further argued that all the services were reasonable
and necessary according to her attorney’s conclusory testimony to that effect, and
therefore, the magistrate’s decision to award $12,500 was an abuse of discretion.
The domestic relations court sustained M.E.K.’s objection because
P.K. did not object to the fee bill or the reasonableness of the services rendered,
improperly shifting the burden to P.K. to disprove that the requested attorney fees
were reasonable before M.E.K. satisfied her burden to prove the fees were
reasonable and because P.K. engaged in dilatory behavior. Ultimately, the court
modified the magistrate’s decision to award M.E.K. $40,000 for attorney fees but
otherwise adopted the magistrate’s findings of fact on this topic. There is no
In [CITATION],
the panel relied on [CITATION] in concluding that the party against whom attorney fees
were awarded had not demonstrated entitlement to unredacted attorney-fee bills in order
to contest the reasonableness of the fees. That case is limited in application because the
panel expressly concluded that the appellant failed to present an argument. It does not
stand for the proposition that a party seeking attorney fees may redact a description of
the services provided that is necessary to determining whether the requested fees were
reasonable. See, e.g., [CITATION]. explanation as to how that figure was derived.
In this appeal, P.K. claims the domestic relations court erred in
awarding fees because under R.C. 3105.73(B), fees are not automatic and require the
court to consider both the conduct of the parties and their income in order to
determine if an award of fees is reasonable and equitable. P.K. focuses on the
dilatory behavior of M.E.K.’s counsel of record. That was an issue extensively
considered by the magistrate who concluded that M.E.K.’s counsel contributed to
the delays in the proceeding due to his “intentional and unnecessarily busy
schedule,” which according to the magistrate, delayed the final hearing on the
pending motions for over ten months. Further, P.K. identifies aspects of the record
in which M.E.K.’s counsel displayed animosity toward the magistrate conducting the
hearing.
P.K. is referring to an exchange that occurred during the February 28, 2023
hearing. The magistrate required the parties to conduct the entire examinations of
witnesses when the witnesses were on the stand expressly based on the delays caused by
both parties in the proceeding. P.K. represented himself pro se at the time. M.E.K.’s
counsel objected to that procedure, claiming he was entitled to dictate when a witness
could be called. The magistrate explained the decision, citing M.E.K.’s counsel’s general
past unavailability when scheduling matters in the case. According to the magistrate, if
the witnesses were not examined when on the stand, the hearing would likely be delayed
because counsel rarely consented to timely scheduling citing his busy schedule. The
magistrate described counsel’s behavior as “combative” and in a voice that “is
disrespectful and discourteous.” M.E.K.’s counsel responded: “I will say things
concerning the Court’s handling of this matter, the Court’s lack of understanding the
issues presented in this case, the Court’s inaccurate statements concerning my schedule,
and what has happened in this case, and my general disappointment in the Court’s
handling of this matter.” Counsel went on to accuse the magistrate of being “jealous” of
his success and legal prowess. Toward the end of the monologue, counsel stated that he
meant no offense, but was frustrated by P.K.’s conduct. The magistrate concluded the
hearing with no further commentary. Although inartfully presented, P.K.’s last argument has merit.
[SEGMENT 3]
Contrary to the domestic relations court’s conclusion in modifying the fee award,
P.K. objected to the fee bill being submitted in its redacted form during the March 3,
2023 hearing on the matter because it precluded him from challenging the
reasonableness of the fees and expenses. That objection was overruled based on
P.K. having time to review and consider the redacted document. P.K. also
unsuccessfully objected to the fee bill not identifying which employee provided the
stated services in discussing the separately provided hourly rate sheet for M.E.K.’s
counsel’s firm. Upon that objection, however, the magistrate noted that the fee bill
contained no amounts for the services rendered and no distinction as between the
various members of the law firm who provided the services. Instead, M.E.K.
presented a summary of the hourly rate for various employees of the law firm, but
nothing tying those rates to the itemized services. The itemized hours totaled
$127,992.50 for services rendered, with the remaining amount comprised of generic
research and copying expenses, but none of the hours indicated who provided the
services other than “Stafford Law Co., L.P.A.”
M.E.K. failed to file merit briefing. Under App.R. 18(C), this panel is
permitted to “accept the appellant’s statement of the facts and issues as correct and
reverse the judgment if appellant’s brief reasonably appears to sustain such action.”
M.E.K., as the party requesting fees and litigation expenses under R.C. 3105.73(B),
bore the burden to demonstrate the reasonableness of the fees and expenses. There
is no requirement that the opposing party object to the reasonableness of the fees until the moving party meets their burden of production. See [CITATION],
[moving party sufficiently demonstrated the reasonableness of the fees because she provided
an affidavit setting forth “a breakdown of the amount by date and employee billing,
the hourly fee amount for each person who worked on the case, and the time, skill,
and labor involved in incurring the fees”).
On this point, the trial court erred in awarding M.E.K. $40,000 in
attorney fees and litigation expenses based on the stated rationale that P.K. failed to
object to the reasonableness of the services and demonstrated a pattern of improper
conduct. P.K. did in fact object to the billing in question, and according to the
magistrate’s findings of fact, M.E.K. failed to demonstrate the reasonableness of the
services rendered by submitting a redacted fee bill. The burden never shifted to P.K.
to demonstrate the unreasonableness of the fees or services. See [CITATION]
(billing entries containing redacted attorney-client information precluded the
magistrate from determining the reasonableness of the requested fees). Further,
upon review of the redacted document, it appears that M.E.K. was attempting to
recoup for all her attorneys’ services from August 2019 through February 2023 —
not all of which pertained to P.K.’s alleged dilatory conduct.
Although there is little doubt that M.E.K. could be entitled to some
fees and expenses based on P.K.’s conduct, the sole question is the amount of that
award. On that point, the domestic relations court’s decision, modifying the magistrate’s decision, did not provide any explanation as to how the $40,000 was
derived from what was described by M.E.K. and the magistrate as a redacted bill
that precluded the magistrate from assessing the reasonableness of the amount
requested. See [CITATION] (“[T]he trial court has the authority to determine whether the magistrate’s findings
of fact are sufficient to support the conclusions of law made, and to reach a different
legal conclusion as long as that conclusion is supported by the magistrate’s findings
of fact.”), citing [CITATION]. Although modifying the award, the domestic
relations court adopted the remainder of the magistrate’s decision, including the
related findings of fact that found the fee bill too redacted to the point of the court
not being able to determine the reasonableness of the requested fees and expenses.
P.K.’s final argument is sustained. The judgment awarding attorney
fees is vacated because P.K.’s brief reasonably appears to sustain that conclusion
based on the record provided. Notwithstanding, a remand for further proceedings
is required in light of the procedural posture of this particular case. As concluded in
[CITATION], although
parties are generally precluded from getting a “second bite at the apple” when it
comes to presenting evidence at trial, there are notable exceptions such as “a
reversal on appeal.” Id. at ¶ 17; but see [CITATION] (a party who failed to appear at the evidentiary
hearing cannot rely on Civ.R. 60(B) as a mechanism to supplement the lack of an evidentiary record). In this case, the domestic relations court overruled P.K.’s
objection to M.E.K.’s reliance on the redacted fee bill and concluded that some
award of fees was necessary. Accordingly, a remand for a new hearing is necessary
in light of M.E.K.’s reliance on the court’s decision that directly impacted the
evidence presented. See, e.g., [CITATION]
(affirming the award of attorney fees following a remand from the direct appeal in
which the panel concluded that the original award of attorney fees was based on
insufficient evidence); [CITATION]
(concluding there was insufficient evidence of the
reasonableness of the fees and remanding the matter for further proceedings);
[CITATION]
(reversing
the imposition of attorney fees based on the lack of evidence but remanding the case
to the trial court for further proceedings on the issue).
Based on the foregoing discussion, the decision of the domestic
relations court is affirmed in part and reversed in part. The decision is affirmed in
all respects except as to the award of attorney fees and litigation expenses. That
award of attorney fees and litigation expenses is reversed and hereby vacated, and
the matter remanded for a new hearing to determine the amount of fees and
litigation expenses M.E.K. incurred as a result of P.K.’s conduct.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion. It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
EMANUELLA D. GROVES, J., CONCURS;
LISA B. FORBES, P.J., CONCURS IN PART AND DISSENTS IN PART (WITH
SEPARATE OPINION)
LISA B. FORBES, P.J., CONCURRING IN PART AND DISSENTING IN PART:
I respectfully agree with the majority regarding the disposition of
P.K.’s first and second arguments. I further agree with the majority regarding the
analysis of P.K.’s third argument. However, I would reverse and vacate the attorney
fee and litigation expenses award without remanding to the trial court for a new
hearing. As the majority noted, the lower court found that M.E.K.’s attorney
presented as evidence “a redacted bill that precluded the magistrate from assessing
the reasonableness of the amount requested.” I agree with the majority that M.E.K.
failed to meet her burden of demonstrating the reasonableness of the fees and
expenses. M.E.K. should not get a second bite at the apple after failing to produce
sufficient evidence at trial. See [CITATION]
====== End of Part of the Court Ruling ====== 4037, at ¶ 17 (“Parties do not generally get a ‘second bite at the apple’ when it comes
to presenting evidence at trial.”); [CITATION] at ¶ 54 (10th Dist.) (finding that, when a party failed to present evidence at a
hearing and then attempted to vacate the judgment, “[s]uch ‘second bites at the
apple’ are not authorized by the Rules of Civil Procedure”).
====== Updated Court Ruling ======
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
[CITATION], :
Plaintiff-Appellee, :
No. 112831
v. :
D.P.M., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: March 7, 2024
Civil Appeal from the Cuyahoga County, Court of Common Pleas
Domestic Relations Division
Case No. DR-15-358274
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A.
Cruz, and Kelley R. Tauring, for appellee.
Costanzo & Lazzaro, PPL and Raymond J. Costanzo, for
appellant.
MARY EILEEN KILBANE, P.J.:
Defendant-appellant D.P.M. (“Husband”) appeals the trial court’s
May 11, 2023 and May 25, 2023 judgment entries that granted plaintiff-appellee
[SEGMENT 4]
[CITATION]’s (“Wife”) motion to dismiss Husband’s postdecree motions for lack of service. For the following reasons, we dismiss in part, reverse in part, and remand
for further proceedings consistent with this opinion.
Factual and Procedural History
On April 18, 1997, Wife and Husband married and during the
marriage had one child, A.M. (d.o.b. 10/23/2006). On July 18, 2017, the trial court
executed a divorce decree that dissolved the parties’ marriage and addressed child
and spousal support. Pursuant to the divorce decree, Husband was ordered to pay
$1,000 per month for child support and $104 per month for cash medical support
as well as $4,500 for 78 months in payment of spousal support.
On February 19, 2020, the Office of Child Support Services (“OCSS”)
issued an Administrative Adjustment Recommendation (“OCSS
Recommendation”) as to Husband’s monthly child support and cash medical
support obligations for A.M. The OCSS Recommendation indicated that Husband
should pay $817.88 and $20.07 for child support and cash medical support,
respectively. The OCSS Recommendation also stated that the trial court had granted
a deviation under the existing order, but OCSS could not determine the monetary or
percentage of the deviation.
On March 4, 2020, Husband filed a motion for court hearing or
judicial review (“motion for judicial review”), pursuant to [CITATION], so that the
trial court could determine whether the revised child support calculated by the OCSS
was an appropriate amount and whether the child support order should be revised. Husband served the March 4, 2020 motion by regular mail on the OCSS. Husband
did not serve the motion on Wife.
On May 18, 2020, Wife’s counsel filed a notice of appearance, and on
May 19, 2020, Wife’s counsel issued a subpoena duces tecum on Husband’s
employer seeking wage and employee benefits information.
On December 23, 2020, Husband filed three postdecree motions: a
motion to determine arrearages (“arrearages motion”), a motion to modify child and
spousal support (“support modification motion”), and a motion to show cause and
demand attorney fees (“show cause motion”) (collectively “December 23, 2020
motions”). The arrearages motion stated the OCSS miscalculated the spousal and
child support arrearages that had accrued since the trial court’s July 18, 2017 order,
including a miscalculation of temporary support. The support modification motion
sought to decrease Husband’s obligations for child and spousal support pursuant to
the July 18, 2017 court order. The show cause motion requested that Husband have
visitation with A.M. and that Wife refinance her residence to remove Husband’s
name from the mortgage.
On January 6, 2021, Wife filed briefs in opposition to Husband’s
December 23, 2020 motions, arguing the merits of the motions. Wife did not argue
that Husband failed to properly serve her with copies of the December 23, 2020
motions. Wife filed numerous motions between January and November 2021.
On November 29, 2021, Wife filed a motion to dismiss alleging that
Husband’s motion for judicial review filed on March 4, 2020, and his December 23, 2020 motions were not properly served upon Wife. Within the motion to dismiss,
Wife stated the issue of lack of service relative to the March 4, 2024 motion was
raised at a hearing on or about November 15, 2020.
On November 29, 2021, Husband filed a brief in opposition to Wife’s
motion to dismiss. In his brief, Husband conceded he did not perfect service of the
motions. Husband argued that from March 4, 2020, through October 28, 2021, the
parties had conducted discovery on the pending motions; defended the motions on
their merits; obtained continuances with the court; participated in more than 15
pretrial hearings and settlement conferences; and set at least two trial dates.
Husband argued that Wife waived her claim of lack of service of process by
voluntarily submitting to the court’s jurisdiction.
On December 1, 2021, Husband requested service of process on three
motions — the motion for judicial review, the arrearages motion, and the support
modification motion — by certified mail at Wife’s home address. The U.S. Postal
Service assigned receipt number 46149786 to Husband’s request for service of
process.
On December 1, 2021, under a separate request for service, Husband’s
show cause motion was sent by certified mail to Wife’s home address and assigned
U.S. Postal Service receipt number 46125837. On December 2, 2021, the U.S. Postal
Service delivered Husband’s show cause motion, referenced as receipt number
46125837, to the wrong address. The motion was delivered to the correct street but
the incorrect street number. The record also indicates that Husband’s three motions — the motion
for judicial review, the arrearages motion, and the support modification motion —
served under receipt number 46149786 were delivered by certified mail on
December 8, 2021, to Wife’s correct address.
Almost one year later on the date of trial — November 22, 2022 —
Wife orally renewed her motion to dismiss for failure of proper service. Wife argued
that Husband’s postdecree motions were required to be served pursuant to Civ.R. 4
through 4.6 to invoke the court’s jurisdiction. Specifically, Wife argued that the
motions did not contain proofs of service and were never served on her personally.
Wife conceded that service may have been attempted in December 2021, but the
motions were delivered to an incorrect address. Husband argued that Wife waived
service, and the docket reflects service of his motions was perfected on Wife, via
certified mail, on December 8, 2021.
The magistrate acknowledged there was an attempt at service, but her
review of the docket indicated that all of Husband’s postdecree motions were
delivered to an incorrect address. The magistrate granted Wife’s motion to dismiss
on the basis that service of the motions was not perfected, and Wife withdrew her
pending motions.
On November 25, 2022, Husband filed four proofs of service with the
trial court. Attached to each proof of service was a copy of Husband’s four motions
that allegedly lacked service. Each proof of service identified the date the attached
motion was originally filed electronically with the clerk of courts and stated that at the time of the original filing, the motion was sent to all counsel of record by
operation of the court’s electronic filing system.
On December 21, 2022, a magistrate’s decision was filed, and it
granted Wife’s oral motion to dismiss Husband’s postdecree motions. The decision
also ordered the adoption of the OCSS recommendation in a separate order and
denied all other procedural motions filed by Wife as moot. On January 3, 2023,
Husband filed objections to the magistrate’s decision as well as supplemental
objections on February 2, 2023. Husband’s objections disputed the magistrate’s
decision to grant Wife’s motion to dismiss due to lack of service.
On May 11, 2023, the trial court issued a judgment entry that
overruled Husband’s objections to the magistrate’s decision and adopted the
magistrate’s decision. On May 25, 2023, the trial court issued a judgment entry that
adopted the magistrate’s December 21, 2022 decision in its entirety; granted Wife’s
motion to dismiss; dismissed Husband’s motions because of the failure of service
upon Wife; ordered the OCSS Recommendation be adopted by separate order; and
ordered Wife’s pending motions either withdrawn or denied as moot.
On June 7, 2023, Husband filed a timely notice of appeal presenting
three assignments of error:
Assignment of Error I: The trial court committed reversible error in
failing to find [Wife] voluntarily submitted herself to the court’s
jurisdiction and waived the Civ.R. 75(J) requirement of issuance and
service of process.
Assignment of Error II: The trial court committed reversible error in
dismissing [Husband’s] motions under Civ.R. 4(E). Assignment of Error III: The trial court committed reversible error in
finding that a motion for court hearing emanating from an
administrative child support review recommendation is subject to
Civ.R. 75(J) service of process requirement.
On November 3, 2023, this court, sua sponte, directed the parties to submit
supplemental briefs addressing whether the trial court’s orders constituted final,
appealable orders. The parties provided supplemental briefing and this issue is now
ripe for review.
Legal Analysis
I. Final, Appealable Order
Before reviewing the merits of this case, we must first consider
whether we have jurisdiction to hear this appeal. An appellate court’s review is
limited to final judgments and orders. [CITATION], ¶ 12. “If an order is not final and appealable, then an
appellate court has no jurisdiction to review the matter and the appeal must be
dismissed.” [CITATION], ¶ 6. “[T]his court has a duty to examine, sua sponte,
potential deficiencies in jurisdiction.” [CITATION] at ¶ 12.
We have two issues to address with regard to our jurisdiction over this
[SEGMENT 5]
case: (1) did the trial court’s failure to adopt the OCSS Recommendation prevent
the May 25, 2023 order from constituting a final, appealable order, and (2) did the
trial court’s dismissal of Husband’s postdecree motions constitute a final,
appealable order under R.C. 2505.02. OCSS Recommendation
The trial court’s May 25, 2023 order (1) adopted the magistrate’s
December 21, 2022 decision in its entirety; (2) granted Wife’s motion to dismiss
thereby dismissing Husband’s postdecree motions; (3) ordered the adoption of the
OCSS Recommendation by separate order; (4) recognized several of Wife’s motions
were withdrawn; and (5) denied as moot several of Wife’s motions.
On June 7, 2023, Husband filed his notice of appeal from the court’s
judgment. At that time, the trial court had not issued a separate order adopting the
OCSS Recommendation even though the May 25, 2023 order stated the court would
do so. Additionally, the OCSS Recommendation was not filed on the trial court’s
docket but was attached to Husband’s motion for judicial review. For these reasons,
this court sua sponte requested supplemental briefing on whether the absence of a
court order adopting the OCSS Recommendation resulted in an unresolved matter
that required further action and, therefore, rendered the May 25, 2023 order not a
final, appealable order.
Husband analogizes the OCSS Recommendation to a qualified
domestic relations order (“QDRO”) and argues neither vehicle requires further
adjudication on the merits of the case but are simply ministerial tools used in
furtherance of an order. A “QDRO implements a trial court’s decision of how a
pension is to be divided incident to divorce or dissolution.” [CITATION] Wife argues that any
judgment that leaves issues unresolved is not a final, appealable order. Wife also argues that consistent with the holding in **[CITATION]**, the current appeal should be dismissed for a lack of a final,
appealable order.
This court has found that
a QDRO is not an independent judgment entry but rather an
enforcement mechanism pertaining to the trial court’s previous
judgment entry of divorce.
**[CITATION]**, citing **[CITATION]**. A
QDRO is “merely a tool used to execute the divorce decree.” **[CITATION]**.
Similarly, we find here that the trial court intended to adopt the OCSS
Recommendation as proposed without any modifications, and the trial court’s
failure to adopt the OCSS Recommendation under a separate order did not prevent
the issuance of a final, appealable order.
R.C. 2505.02
The types of orders that qualify as final, appealable orders are
delineated in R.C. 2505.02(B):
An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which
both of the following apply: (a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of
the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.
(5) An order that determines that an action may or may not be
maintained as a class action;
(6) An order determining the constitutionality of any changes to the
Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly,
* * * or any changes made by Sub. S.B. 80 of the 125th general assembly,
***;
(7) An order in an appropriation proceeding that may be appealed
pursuant to division (B)(3) of section 163.09 of the Revised Code.
R.C. 2505.02(B).
A “substantial right” is “a right that the United States Constitution,
the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a
person to enforce or protect.” R.C. 2505.02(A)(1). A “special proceeding” is “an
action or proceeding that is specially created by statute and that prior to 1853 was
not denoted as an action at law or a suit in equity.” R.C. 2505.02(A)(2).
A divorce action is a special proceeding. [CITATION], ¶ 12, citing [CITATION], ¶ 6. A
motion to modify child support may qualify as a special proceeding pursuant to R.C.
2505.02(B)(2). [CITATION], at ¶ 22;
[CITATION] (June 11, 1999), citing [CITATION] (9th Dist.1996) (“Motions to modify child support are special proceedings.”); see
[CITATION]
(“Matters within the juvenile court setting child support are special proceedings”).
We also find a motion for judicial review filed pursuant to R.C. 3119.60, such as
Husband’s March 4, 2020 motion, is a proceeding created by statute and qualifies
as a special proceeding.
In addition to showing the motions were made in a special
proceeding, Husband must demonstrate that the trial court’s May 11, 2023 and May
25, 2023 orders affected Husband’s substantial rights. This court has found that
[a]n order affects a substantial right if, in the absence of an immediate
appeal, one of the parties would be foreclosed from appropriate relief
in the future. See, e.g., [CITATION]
¶ 16 (“An order affects a substantial right ‘only if an immediate appeal
is necessary to protect the right effectively.’”), quoting [CITATION]
¶ 7,
citing [CITATION]
Cooney at ¶ 23.
We will evaluate Husband’s postdecree motions separately to address
whether the trial court’s dismissal of each created a final, appealable order. In his
appeal, Husband argues that the trial court erred when it dismissed his motion for
judicial review, arrearages motion, and support modification motion. Husband’s
appeal does not address his show cause motion, and thus, we will not analyze the
dismissal of this motion for a final, appealable order.
A. Motion for Judicial Review Husband sought judicial review of an OCSS Recommendation to
modify the parties’ child support order. OCSS Recommendations are governed by
[CITATION]. According to [CITATION], after Husband received a copy of the OCSS
Recommendation, he could request a court hearing or administrative hearing on the
issue, but either request was required to be filed within 14 days after Husband
received the OCSS Recommendation. The OCSS issued its recommendation on
February 19, 2020, and Husband filed his motion for judicial hearing on March 3,
2020, within the 14-day time requirement. No hearing was held on the motion
because the trial court dismissed Husband’s motion for judicial hearing for lack of
service. If Husband is unable to appeal the dismissal of his motion for judicial
review at this time, the trial court will adopt the OCSS Recommendation in its
entirety and the modification will relate back to the date the OCSS Recommendation
was sent. [CITATION]. Husband will be prevented from arguing to the court his
objections to the OCSS Recommendation. [CITATION] offers no method by which
Husband can request a subsequent hearing. Thus, Husband, in the absence of the
current appeal, would be denied a substantial right because he would be foreclosed
from presenting his arguments against the OCSS Recommendation.
We find that the facts here are unique where Husband filed a motion
for a judicial hearing under [CITATION]; the trial court did not conduct a hearing
as requested by Husband; and Husband is now outside the time parameters of the
statute to request another hearing on this issue. The instant matter is a case where
the trial court’s dismissal otherwise than on the merits will prevent Husband from refiling his motion for judicial review. Thus, we find that the trial court’s May 11,
2023 and May 25, 2023 orders resulted in a final, appealable order on Husband’s
motion for judicial review.
B. Arrearages Motion
Husband filed an arrearages motion requesting that the trial court
determine his arrearages in child and spousal support following the July 18, 2017
court order.
Orders affect a substantial right only if they have “immediate
consequences” or “if not immediately appealable, would foreclose appropriate relief
in the future.” [CITATION], quoting [CITATION], and [CITATION].
Here, the trial court’s order on the arrearages motion did not have
immediate consequences for Husband. The trial court made no determination
whether arrearages exist. The dismissal of this motion did not foreclose Husband
[SEGMENT 6]
from refiling this motion so that he can attempt to obtain appropriate relief in the
future. The trial court’s dismissal of Husband’s arrearages motion did not affect a
substantial right and, therefore, does not amount to a final, appealable order.
C. Support Modification Motion
In his support modification motion, Husband seeks a decrease in his
child and spousal support obligations that were issued on July 18, 2017. Husband argues on appeal that a dismissal of this motion will foreclose his substantial right
to have his spousal and child support reduced retroactively to the initial filing date
of December 23, 2020.
“As a general rule, because of the time it takes to modify child support
orders, an order modifying child support order may be made retroactive to the date
the motion to modify child support was filed unless special circumstances dictate
otherwise.” [CITATION], ¶ 12, quoting [CITATION], ¶ 37.
Wife cites to [CITATION] in support of her position that Husband’s modified support modification
motion is not a final, appealable order. In [CITATION], Father filed a postdecree motion
to modify a parenting order and perfected service of the motion. Father then filed a
second postdecree motion to modify child support (“child support motion”) without
serving Wife under Loc.R. 19 of the Court of Common Pleas of Cuyahoga County,
Domestic Relations Division (“Loc.R. 19”) and Civ.R. 75(J) (collectively “service
rules”). At issue in [CITATION] was whether Father was required to follow the service
rules for the child support motion where the court’s continuing jurisdiction had
already been triggered by the initial motion to modify a parenting order. Father in
[CITATION] served the child support motion on Wife’s counsel rather than Wife, which
was not in compliance with the service rules. This court found in [CITATION] that where
Father did not invoke the trial court’s continuing jurisdiction through compliance with the service rules and Father had the opportunity to refile his motion upon
dismissal of the case, there was no final, appealable order.
[CITATION] is distinguishable from the instant case. Father in [CITATION]
failed to serve Mother properly with the motion to modify support and, therefore,
did not invoke the trial court’s continuing jurisdiction. Mother timely raised the
issue of failed service within three months of Father filing his motion to modify
support. There is also the matter of whether Father’s compliance with the service
rules on his first postdecree motion impacted the service necessary on his second
postdecree motion.
Here, as is demonstrated by the record and discussed below in our
analysis of Husband’s second assignment of error, Husband’s support modification
motion was properly served on Wife thereby invoking the trial court’s continuing
jurisdiction. Further, Wife’s motion to dismiss for lack of service was filed in
response to Husband’s postdecree motions originally filed on March 4, 2020, and
December 23, 2020. Wife did not file her motion to dismiss until November 29,
2021. From January 2021 through November 2021, Wife actively participated in
litigation of the postdecree motions. Wife states in her motion to dismiss that the
issue of service relative to the March 4. 2020 motion was previously raised in
November 2020, but there is no record of such a discussion nor any filing by Wife
prior to November 2021. Thus, we find the facts and holding of [CITATION] are
distinguishable from the instant matter. While Husband has the ability to refile his support modification
motion, any award will relate back to the new filing date rather than the original
filing date of December 23, 2020. Husband would be prevented from benefitting
from a potential modification between the period of December 23, 2020, and the
new filing date. For this reason, we find that the dismissal of Husband’s support
modification motion would impact a significant right of Husband, and the dismissal
of this motion was a final, appealable order. See [CITATION] (Although court’s dismissal of Father’s motion to
modify child support did not prevent him from refiling the motion, Father would be
entitled to a support reduction retroactive only to the date of the new filing; the loss
of the reduction retroactively to the date of his initial filing qualified as a substantial
right under R.C. 2505.02.); [CITATION] (Trial court’s judgment entry involuntarily dismissing a
motion to modify child support is a final, appealable order because the “order
modifying child support cannot be retroactive beyond the date that a motion for
modification of child support is made.”).
In summary, we find that the trial court’s May 11 and May 25, 2020
orders resulted in final, appealable orders on Husband’s motion for judicial review
and support modification motion. We find further that the trial court orders were
not final, appealable orders on Husband’s arrearages motion. We will address the
merits of Husband’s appeal as it relates to his motion for judicial review and support
modification motion. II. Assignments of Error
For ease of discussion, we will address Husband’s assignments of
error out of order.
A. Third Assignment of Error
In his third assignment of error, Husband argues that the trial court
committed reversible error when it determined his motion for judicial review filed
pursuant to R.C. 3119.63 was subject to Civ.R. 75(J) service requirements and
dismissed the motion for lack of personal jurisdiction. Wife argues Husband was
required to follow the service requirements of Loc.R. 19 and Civ.R. 75.
A trial court’s dismissal for lack of personal jurisdiction is a question
of law subject to a de novo review. [CITATION]
Generally, after the resolution of divorce proceedings that include
child and spousal support, the trial court’s continuing jurisdiction must be invoked
for postdecree motions through service of process. “When a party fails to invoke the
continuing jurisdiction of the trial court by not meeting the requirements for service
of process, the court lacks personal jurisdiction to enter judgment upon the motion.”
[CITATION]
One manner to invoke a trial court’s continuing jurisdiction on a
postdecree motion for modification of custody, support, or alimony is through
service of process under Civ.R. 75(J). [CITATION] But that is not the only way to invoke the court’s jurisdiction. R.C. 3119.60 also independently imparts jurisdiction on the trial court
to resolve motions such as Husband’s motion for judicial review. See [CITATION] (where the statutory
framework delineated by R.C. 3119.96, rather than Civ.R. 75(J), invoked the trial
court’s continuing jurisdiction). R.C. 3119.60 has no service requirement.
Jurisdiction is predicated on a party filing a motion for a court hearing no later than
14 days after the party received an OCSS Recommendation. Once a request for a
court hearing is filed, the court is required to conduct a hearing in compliance with
R.C. 3119.66. Further, the court must provide notice of the hearing to the parties
and the child support enforcement agency (“CSEA”) at least 30 days prior to the
hearing. R.C. 3119.67. Thus, any reference to a trial court’s continuing jurisdiction
under Civ.R. 75(J) in relation to an OCSS Recommendation generated under R.C.
3119.60 is misplaced.
Accordingly, Husband invoked the trial court’s continuing
jurisdiction when he filed his motion for judicial review in accordance with R.C.
3119.63. The trial court’s determination that the motion for judicial review was
subject to Civ.R. 75(J) and the subsequent dismissal of Husband’s motion for
judicial review was erroneous. For these reasons, we sustain Husband’s third
assignment of error.
B. Second Assignment of Error
In his second assignment of error, Husband argues that the trial court
committed reversible error when it dismissed his support modification motion pursuant to Civ.R. 4(E).1 Specifically, Husband argues that service of his support
modification motion was perfected within the time required under Civ.R. 3(A) and
prior to the court’s ruling on Wife’s motion to dismiss. Husband also argues that a
dismissal pursuant to Civ.R. 4(E) will foreclose his substantial right to have his
spousal and child support reduced retroactively to the initial filing date of December
23, 2020.
We review a trial court’s dismissal due to lack of proper service for an
abuse of discretion. [CITATION]. The term abuse of discretion “implies that the court’s attitude
is unreasonable, arbitrary or unconscionable.” [CITATION]. An abuse of discretion occurs when a court
exercises its judgment in an unwarranted way regarding a matter over which it has
discretionary authority. [CITATION].
To invoke the domestic relations court’s continuing jurisdiction,
Husband needed to file his support modification motion pursuant to Civ.R. 75(J).
Civ.R. 75(J) reads:
In regard to Husband’s first assignment of error, appellant’s and appellee’s briefs
address the filing of Husband’s motion for judicial review, arrearages motion, and support
modification motion. Husband’s second assignment of error discusses Husband’s
arrearages motion and support modification motion. Since we find that there is no final,
appealable order on Husband’s arrearages motion, and our discussion on Husband’s third
assignment of error is dispositive on Husband’s motion for judicial review, we will address
only the support modification motion during our analysis of the first and second
assignments of error. Continuing jurisdiction. The continuing jurisdiction of the court
shall be invoked by motion filed in the original action, notice of which
shall be served in the manner provided for the service of process under
[CITATION]. When the continuing jurisdiction of the court is invoked
pursuant to this division, the discovery procedures set forth in [CITATION]
shall apply.
[SEGMENT 7]
[CITATION]. Pursuant to [CITATION], upon the filing of a complaint — or Husband’s
support modification motion — the clerk shall issue a summons for service upon
each defendant. The document shall be served by either certified or express mail,
unless otherwise permitted in the civil rules, as evidenced by “return receipt signed
by any person.” [CITATION].
On December 23, 2020, Husband filed his support modification
motion with the trial court but failed to serve the motion in accordance with [CITATION]. Instead, Husband simply filed the motion through the
court’s electronic filing system.
On November 29, 2021, almost one year after Husband filed his
support modification motion, Wife filed a motion to dismiss Husband’s motion due
to its failure to comply with the service rules. Wife conceded during oral argument
that she did not recognize a potential service issue until that later date. On the same
day Wife filed her motion to dismiss, Husband filed a brief in opposition to Wife’s
motion to dismiss, arguing that Wife waived service of process by conducting
discovery, receiving continuances, and defending the merits of Husband’s motions.
Husband further argued that from March 4, 2020 — when his first postdecree
motion was filed — through October 28, 2021, the parties had conducted discovery on motions filed by both Husband and Wife, participated in more than 15 pretrials
and settlement conferences, and set two trial dates.
Two days later, on December 1, 2021, Husband filed with the court a
request for service that instructed the clerk of courts to serve the support
modification motion on Wife, by certified mail, at her home address. The U.S. Postal
Service assigned receipt number 46149786 to the service of the motion.
The record indicates that on December 15, 2021, Husband’s motion
served under receipt number 46149786 was delivered by certified mail on December
8, 2021, to Wife’s correct address. The receipt information provided by the U.S.
Postal Service and included in the record shows the signature of the recipient and
the address of the recipient. The signature of the recipient is illegible, and we are
not able to ascertain the name of the signatory. The address of the recipient is
difficult to decipher, but the street numbers are legible — which reflect Wife’s correct
address — and the receipt states the item was delivered in the Wife’s correct city and
state. Husband’s support modification motion was not delivered to an incorrect
address.[CITATION] The trial court erred when it found that Husband served the support modification
motion to the incorrect address. It appears that the trial court confused service of
Husband’s support modification motion with service of his show cause motion; the show
cause motion is not subject to this appeal. A thorough review of the record indicates that
on November 22, 2021, Husband requested service of his show cause motion on Wife. On
December 1, 2021, Husband’s show cause motion was sent by certified mail to Wife’s
correct address, and that mailing was assigned U.S. Postal Service receipt number
46125837. U.S. Postal Service receipt number 46125837 was delivered on December 2,
2021, to the wrong street address rather than Wife’s address. The show cause motion was
delivered to the incorrect address. According to Civ.R. 4.1(A), “service of process may be made by
certified mail ‘evidenced by return receipt signed by any person * * *.’” [CITATION], quoting [CITATION], quoting Civ.R.
4.1(A). Certified mail must be sent to an address “reasonably calculated to cause
service to reach the defendant.” [CITATION]. “‘There is a rebuttable
presumption of proper service when the civil rules governing service are followed.’”
[CITATION], quoting [CITATION], citing [CITATION]. This presumption of proper service is rebuttable by sufficient
evidence. [CITATION].
Here, the return receipt shows that certified mail service of Husband’s
support modification motion was sent to Wife’s home address, signed, and returned.
Under Civ.R. 4.1(A), service was presumptively completed. See [CITATION] (“[C]ertified mail, under
the Rules of Civil Procedure, no longer requires actual service upon the party
receiving the notice but is effective upon certified delivery.”). Wife introduced no
evidence to rebut proper service, but argued erroneously that the motion was served
to the wrong address.
As to his support modification motion, Husband satisfied the service
rules. However, Husband did not serve the motion within six months of its filing and, therefore, the support modification motion could be subject to dismissal
pursuant to Civ.R. 4(E) that reads:
Summons; Time limit for service. If a service of the summons and
complaint [support modification motion] is not made upon a
defendant within six months after the filing of the complaint and the
party on whose behalf such service was required cannot show good
cause why such service was not made within that period, the action
shall be dismissed as to that defendant without prejudice upon the
court’s own initiative with notice to such party or upon motion. This
division shall not apply to out-of-state service pursuant to Rule 4.3 or
to service in a foreign country pursuant to Rule 4.5.
[CITATION] states a trial court will dismiss an action if service of the
summons and complaint is not made upon the defendant within six months of filing
the complaint and the party filing the complaint does not show good cause as to why
service was not perfected in that time frame. In his supplemental objections filed
on February 2, 2023, Husband argued service of the motion was delayed for good
cause. Husband argued that upon Wife’s responding to the motion on January 6,
2021, he believed Wife had subjected herself to the court’s jurisdiction. Husband
also noted that Wife’s January 2021 motions argued the merits of the case but did
not question service of the motion. The parties actively litigated the case from
January 2021 through November 2023, when the trial court dismissed the case for
lack of proper service. Husband also argued that service was perfected on December
8, 2021, and the delay in obtaining service did not interfere with the progression of
the case. Husband argued dismissal of the matter for lack of service would be unjust. The record reflects that the first written claim of lack of jurisdiction
was made on November 29, 2021, when Wife filed her motion to dismiss due to lack
of service. On that same day, Husband filed a brief in opposition and argued that
Wife waived service by her continued participation in litigation of his motions. Just
a few days later, on December 1, 2021, Husband filed a request for service in an
attempt to perfect service of the support modification motion on Wife. And
Husband successfully perfected service of the motion on December 8, 2021. The
trial court granted Wife’s motion to dismiss due to lack of service, and thereby
dismissed Husband’s support modification motion in May 2023, over a year after
Husband perfected service.
As this court stated previously,
[w]e do not believe that Civ.R. 4(E) is meant to be used as a vehicle to
dismiss cases once service has been properly perfected, but rather is
intended to apply to those situations where there is no service and
where the plaintiff has been dilatory in attempting to obtain service on
a defendant.
[CITATION]. “Like all procedural rules, Civ.R. 4(E)
must be ‘construed and applied to effect just results by eliminating delay,
unnecessary expense and all other impediments to the expeditious administration
of justice.’” [CITATION], quoting Civ.R. 1(B); see [CITATION] (The trial court found “there was little
justification for dismissal inasmuch as Gibson had shown cause for not obtaining service within six months of filing the Complaint and had shown diligence in
obtaining service.”).
By the time the trial court ruled on Wife’s motion to dismiss, Husband
had perfected service of the support modification motion. We find Husband’s timely
response to Wife’s motion to dismiss and his reasoning for good cause, coupled with
Husband’s successful service of his support modification motion just days after Wife
filed her motion to dismiss, demonstrate just cause for Husband’s delay in
perfecting service. Additionally, adopting the reasoning behind Civ.R. 4(E) and this
court’s reluctance to dismiss an action where service has been perfected, we
determine that the trial court abused its discretion when it found Husband did not
perfect service of the support modification motion and dismissed that motion.
Therefore, we sustain Husband’s second assignment of error. Further, our finding
on the second assignment of error renders Husband’s first assignment of error moot.
Judgment is dismissed in part, reversed in part, and remanded for
further proceedings consistent with this opinion. As to Husband’s second and third
assignments of error, the dismissals of Husband’s support modification motion and
motion for judicial review, respectively, are reversed and remanded for further
proceedings consistent with this opinion. As to Husband’s arrearages motion, we
conclude that the trial court’s May 11, 2023 and May 25, 2023 orders dismissing the
motion for lack of service were not final, appealable orders and, therefore, dismiss
that portion of Husband’s appeal relative to that motion.
It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal.
[SEGMENT 8]
It is ordered that a special mandate issue out of this court directing the
common pleas court, domestic relations division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
MICHAEL JOHN RYAN, J., CONCUR
[Citation]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.Q.-P. :
A Minor Child : No. 112618
[Appeal by B.P., Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 22, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. FA18107682
Appearances:
Nathaniel E. Wilkinson, for appellant.
S.Q., pro se.
EILEEN A. GALLAGHER, P.J.:
Father-appellant, B.P. (“Father”), appeals from the juvenile court’s
judgment entry following an evidentiary hearing on motions related to Father’s
parenting time with, and support obligations for, his daughter, J.Q.-P. Father
contends that the juvenile court erred in (1) denying his motion to amend his
pleadings to conform to the evidence pursuant to Civ.R. 15(B) and (2) dismissing his
motion to modify custody of J.Q.-P. For the reasons that follow, we affirm the judgment of the juvenile
court.
Procedural and Factual Background
J.Q.-P. was born on December 11, 2016. Father’s paternity was
established on March 10, 2017. An administrative order for child support and
medical support was entered on May 24, 2017. On June 15, 2018, Father filed an
application to establish a shared parenting plan in the Cuyahoga County Court of
Common Pleas, Juvenile Division (the “juvenile court”). On May 28, 2019, the
juvenile court denied Father’s application for a shared parenting plan and entered
an order designating Mother as the residential and custodial parent of J.Q.-P. and
granting Father parenting time.
On September 13, 2019, Mother filed (1) a motion to modify parenting
time and support and (2) an emergency motion to terminate visitation. Mother
alleged that Father had physically and/or sexually abused J.Q.-P., that Father had
failed to provide adequate nutrition for J.Q.-P. and had otherwise failed to meet her
basic needs during his parenting time and that J.Q.-P. had demonstrated
unexplained “psychological changes” and harmful “self-inflicting behavior”
following visits with Father. The juvenile court appointed a guardian litem to
conduct an investigation and make a recommendation.
On September 30, 2019, Father filed a motion to show cause,
requesting that Mother be required to show cause why she should not be held in
contempt for interfering with his court-ordered parenting time with J.Q.-P. Father alleged that Mother had denied him visitation since September 12, 2019. On
October 30, 2019, Father filed an amended motion to show cause, alleging that
Mother had continued to deny him court-ordered visitation throughout October
2019.
On November 19, 2019, Mother filed a motion to show cause,
requesting that Father be held in contempt for failing to pay for certain medical
expenses incurred on behalf of J.Q.-P.
On November 25, 2019, an evidentiary hearing was held on Mother’s
emergency motion to terminate Father’s visitation. A magistrate denied the motion
but ordered that Father’s parenting time be supervised pending further
investigation.
On December 12, 2019, Mother filed an amended motion to show
cause, providing further support for her claim that Father had failed pay certain
medical expenses incurred on behalf of J.Q.-P. and alleging that Father had failed to
timely make child support payments.
An evidentiary hearing on the pending motions was originally
scheduled for June 2020 but was continued due to issues related to the COVID-19
pandemic. Numerous continuances followed due to scheduling issues and/or as the
parties engaged in settlement discussions in an attempt resolve the matter.
Following a conference conducted on April 27, 2021, the magistrate
entered an order indicating that, through their negotiations, the parties had reached
“substantial agreement in the matter” but were “not in agreement as to the issue of which parent will be designated as residential parent for school purposes” and that
“[t]he matter should be set for trial on the remaining issue of which parent shall be
designated residential parent for school purposes.” The matter was then assigned a
July 2021 trial date.
On May 4, 2021, the parties agreed that Father’s parenting time
would no longer be supervised and the juvenile court adopted the parties’
agreement. Following a conference on May 27, 2021, the magistrate entered an
order indicating that the parties were “coming to an agreement” that they
anticipated would “encompass all custody and support matters.”
In June 2021, Mother’s counsel was granted leave to withdraw.
Mother then proceeded pro se. Shortly thereafter, the July 2021 trial was cancelled,
and the case was transferred to a visiting judge. The assigned visiting judge passed
away before the matter could be heard and the case was transferred to a new visiting
judge.
Following a pretrial conference on January 27, 2022, an evidentiary
hearing was scheduled for April 26 and 27, 2022. In its journal entry summarizing
the conference, the juvenile court stated:
For any modification of the May 28, 2019 Journal Entry, the moving
parties must show that there was a “change of circumstances” and that
the proposed modification is in the “best interest of the child.”
The parties indicated the only issue before the Court is: Legal
Custodian[;] Residential Parent for School Purposes; Child Support;
and Medical Payments and Deductibles. Once again, the evidentiary hearing was continued. The evidentiary
hearing finally commenced on September 20, 2022.
The Evidentiary Hearing
The transcript reveals that at the outset of the hearing, there was
confusion as to what motions were to be addressed at the hearing. After some
discussion on the issue, which apparently left the juvenile court with the impression
that Father had filed a motion to modify the May 28, 2019 judgment entry, the
juvenile court indicated, “[W]e’re ready to proceed in regards to evidence and
testimony in regards to the issue of whether there should be a modification of the
Court’s last order in regards to residential parent. * * * So the obligation is on the
father at this point in time on the Motion to Modify.” Although Father had not, in
fact, filed a “motion to modify,” no one corrected the juvenile court.
Mother proceeded with her case-in-chief, presenting testimony from
J.Q.-P.’s pediatrician, a social worker for the Cuyahoga County Division of Children
and Family Services, Father by cross-examination and her own narrative direct
examination. Father was the sole witness to testify on his behalf.
In the middle of Father’s testimony, the juvenile court realized that
Father had not, in fact, filed a motion to modify custody. The following exchange
occurred:
THE COURT: * * * You’ve asked for a change or modification.
When was that motion filed?
[FATHER’S COUNSEL]: The Court has been interpreting the
mother’s motion as a full modification. We never actually filed a Motion to Modify, but that’s been —
every since I was retained about mid-2019, that’s how this Court —
THE COURT: Yeah. I didn’t see it either, so that’s kind of tricky
to modify custody.
First you have to have a change of circumstance, but then you
have to have the best interest, but there’s no motion.
[MOTHER]: I agree with that. There is not.
THE COURT: So on what basis can I grant your request now?
[FATHER’S COUNSEL]: Obviously, this case has been pending
for a very long time and mother has had notice of father’s intention to
change parenting time.
(Inaudible) we’ve been negotiating back and forth and due to the
close proximity of mother’s emergency motion before [the magistrate]
had been treating the entire — basically (inaudible).
So the Guardian ad Litem’s report is —
THE COURT: Obviously he understood that too. But
nevertheless, there’s no motion for modification unless you know of
one. * * * The only Motion for Modification was that of the mother.
Okay. I’ll let you proceed and we’ll sort it out,
Father continued with his testimony. At the conclusion of his
testimony, Father made an oral motion to modify parenting time and custody. The
juvenile court responded: “Sometimes we’ll grant a motion to allow you to make a
[SEGMENT 9]
motion to conform with the evidence or file a pleading to conform with the evidence,
but I don’t think this is an appropriate case for that.” At the conclusion of the first
day of the hearing, the juvenile court, once again, addressed the issue of Father’s
unfiled motion: THE COURT: * * * In regards to your motion for modification of
custody and/or the motion to reflect the evidence or to conform with
the evidence presented, I’m gonna consider it, so if you have something
to write and file, you need to do so tonight. * * * I haven’t ruled on it.
* * * I’ll consider it at that time.
The next morning, Father filed (1) a motion to amend his pleadings
to conform to the evidence pursuant to Civ.R. 15(B) and (2) a motion to modify
custody.
In his motion to amend his pleadings, Father argued that the parties
had “expressly and impliedly consented to try the matter of custody” at the
January 27, 2022 pretrial conference, that all parties had been “operating under the
understanding that custody was at issue * * * and had been doing so for many
months” and that Mother had “more than a fair opportunity to address the issue,”
given that her “witnesses and exhibits bore directly on the issue of custody.” Father
also noted that the guardian ad litem had recommended a change in custodial status.
Father did not, however, identify what “pleading” he sought leave to amend or,
specifically, what amendments he sought leave to make.
In his motion to modify custody, Father requested that he be
designated the legal custodian and residential parent of J.Q.-P. or, in the alternative,
that Father be named the residential parent for school purposes, be given authority
to make medical decisions for J.Q.-P., have approximately equal parenting time with
J.Q.-P. and that child support be adjusted accordingly. In support of his motion,
Father asserted that “there has been a significant change in circumstances since the
last order of this court.” After receiving Father’s motions, the juvenile court indicated that it
would “not rule upon [Father’s motions] directly” but that it would “take [them]
under advisement” and “may or may not grant them.” The evidentiary hearing then
continued.
Recommendation of the Guardian Ad Litem
On September 14, 2022, the guardian ad litem filed a report in which
he recommend that “due to a significant change in circumstances,” the juvenile court
“issue an order for shared parenting with a relatively equal allocation of parenting
time,” that Father be given the right “to make all medical and school-related
decisions” for J.Q.-P. and that Father be designated the residential parent for school
purposes. The guardian ad litem further stated that “should the Court decide that it
is in [J.Q.-P.’s] best interest that she be placed in Father’s exclusive custodial and
residential care,” he would “endorse that.” The guardian ad litem explained that his
recommendation was based on the fact that although there was “little to no basis in
fact for her accusations” of abuse, Mother “continue[d] to push the narrative of
abuse when interacting with involved professionals including the child’s school.” He
indicated that Mother’s continued accusations, “without [Mother’s] willingness to
seek help or acknowledge a problem, foretells a potentially dangerous future that
would not be in [J.Q.-P.’s] best interest” and that although Mother had for years
claimed that J.Q.-P.’s issues were attributable to Father, “it is abundantly clear that
she is[,] in fact, the primary source of the distress.” At the hearing, the guardian ad litem described his investigation and placed his recommendation on the record. He
then answered questions posed him by the parties.
The Juvenile Court’s Ruling
On March 7, 2023, the juvenile court issued a judgment entry in
which it denied Mother’s motion to modify parenting time and overruled and
dismissed Father’s motion for leave to amend his pleadings and his motion to
modify custody.[CITATION]
With respect to Mother’s motion to modify parenting time, the
juvenile court found that Mother had “failed in her burden of proof” and that there
was “no evidence” to support her motion. The juvenile further found that there was
no evidence of abuse or neglect of J.Q.-P. while in Father’s care and “not a thread of
evidence that sexual abuse of [J.Q.-P.] occurred” — while in Father’s care or
otherwise. The juvenile court noted that “[i]ndividuals’ perceptions or
presumptions are not significant threats” and that “[f]alse reports could lead to a
‘change of circumstances’ and affect the best interest of the child.” With respect to
Father’s motions, the juvenile court stated:
When browsing the Court’s file on September 20, 2022, the
Court found no motion was filed by Father for modification of the
Court’s Parenting Time Order or modifying the parent approved for
school purposes or medical decisions.
[CITATION] On March 6, 2022, the juvenile court issued a separate journal entry addressing
the issue of child support. Finding a substantial change in circumstances that was not
contemplated at the time of the original child support order, the juvenile court
significantly reduced Father’s monthly child support obligation. The parties have not
appealed this journal entry. On the second day of trial, September 21, 2022, Father filed
motions to allow him to file a Motion to Modify Parental Rights and
Responsibilities and/or amend his pleadings to conform to the
evidence. The Court overruled those motions as not timely filed. The
Court subsequently took Father’s motions under advisement.
***
The Court overrules and dismisses Father’s motions, filed
September 21, 2022, on the second day of trial to modify custody or
allow Father to amend his pleadings to conform to the evidence.
Mother is pro se. Mother prepared and argued her Motion to
Terminate or Modify Father’s Parenting Time; however, to consider
modification of the parental custody without a motion filed in this case
would be a denial of due process and be fundamentally unfair.
***
Since no motion is pending in Father’s case, the Court cannot
order modification of the parties’ current custody/parenting order of
May 28, 2019.
***
Inasmuch as the Court dismissed Father’s motions, the Court
has not made a ruling on “change of circumstances” for Father.
Father appealed, raising the following two assignments of error for
review:
Assignment of Error 1: On page 13 of the Judge’s Decision, the court
erred when the court overruled Father’s 15(b) motion to conform the
evidence to match the pleadings.
Assignment of Error 2: On page 13 of the Decision, the court erred
when the court dismissed Father’s motion to modify custody. Law and Analysis
Motion for Leave to Amend Pleadings to Conform to the Evidence
In his first assignment of error, Father argues that the juvenile court
abused its discretion in denying his motion to amend his pleadings to conform to
the evidence under Civ.R. 15(B). He asserts that the matter should “be decided as if
his 15([B]) motion was granted” and that “he be named the residential parent and
legal custodian of J.Q.-P.”
Civ.R. 15(B) provides:
When issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings. Such amendment of the pleadings as may
be necessary to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at any time, even
after judgment. Failure to amend as provided herein does not affect
the result of the trial of these issues. If evidence is objected to at the
trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall
do so freely when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the court that
the admission of such evidence would prejudice him in maintaining his
action or defense upon the merits. The court may grant a continuance
to enable the objecting party to meet such evidence.
In determining whether the parties impliedly consented to litigate an
issue, courts consider various factors, including “whether they recognized that an
unpleaded issue entered the case; whether the opposing party had a fair opportunity
to address the tendered issue or would offer additional evidence if the case were to
be retried on a different theory; and whether the witnesses were subjected to
extensive cross examination on the issue.” [CITATION]
====== End of Part ====== Trustees, [CITATION], paragraph one of the syllabus.
“Under Civ.R. 15(B), implied consent is not established merely because evidence
bearing directly on an unpleaded issue is introduced without objection. Rather, it
must appear that the parties understood the evidence was aimed at the unpleaded
issue.” Id. at [CITATION]. Further, an issue may not be tried by implied consent where it
[SEGMENT 10]
would result in substantial prejudice to a party. Id. at [CITATION]. “[D]ue to the
requirements of procedural due process, trial of unpleaded issues by implied
consent is not lightly inferred.” [CITATION], ¶ 24, citing [CITATION].
We review a trial court’s denial of a Civ.R. 15(B) motion to amend
pleadings for abuse of discretion. [CITATION]. A trial
court abuses its discretion if its decision was unreasonable, arbitrary or
unconscionable. [CITATION]. As the Ohio Supreme Court explained in [CITATION]:
“[A]n abuse of discretion involves far more than a difference in * * *
opinion * * *. The term discretion itself involves the idea of choice, of
an exercise of the will, of a determination made between competing
considerations. In order to have an ‘abuse’ in reaching such
determination, the result must be so palpably and grossly violative of
fact and logic that it evidences not the exercise of will but perversity of
will, not the exercise of judgment but defiance thereof, not the exercise
of reason but rather of passion or bias.” Id. at 87, quoting [CITATION].
A decision is unreasonable when “no sound reasoning process” supports the
decision. [CITATION]. An abuse of discretion also occurs when
a court “applies the wrong legal standard, misapplies the correct legal standard, or
relies on clearly erroneous findings of fact.” [CITATION].
Father argues that the juvenile court abused its discretion in denying
his motion for leave to amend his pleadings because the parties “expressly and
impliedly consented to try the matter of custody,” Mother had notice of and a “fair
opportunity” to present evidence on “the issue of custody” and, in fact, presented
evidence on the issue at the hearing, each witness who could speak to the issue was
cross-examined on “the issue of custody” and Father had relied on the juvenile
court’s prior statements that custody was at issue in failing to file a motion to modify
custody earlier in the proceedings, thinking it was “unnecessary.” Father further
contends that “[w]hile it could be viewed as reasonable to deny the motion based on
the discussion and [M]other’s presentation of [the] case involving the issue of
custody, to deny Father’s motion in contravention of the Court’s own statements is
unreasonable” and that Mother’s pro se status should not have been considered
when ruling on the motion because Mother “chose to represent herself.”
We are mindful that our role is to determine whether the juvenile
court abused its discretion, not whether the juvenile court’s decision was the same decision this court would have made. When reviewing a decision for abuse of
discretion, we cannot substitute our judgment for that of the juvenile court.
Based on a thorough review of the record, we cannot say that the
juvenile court abused its discretion in denying Father’s motion. The record reflects
that the juvenile court carefully considered Father’s motions. After reviewing
Father’s motions and considering the arguments of the parties and the evidence
presented at the hearing, the juvenile court denied Father’s motion because (1) no
motion was pending in Father’s case, (2) Mother, who was proceeding pro se,
“prepared and argued” her motion to terminate or modify Father’s parenting time,
not a motion to change her designation as the residential parent and legal custodian
of J.Q.-P. and (3) “to consider modification of the parental custody without a motion
filed in this case would be a denial of due process and would be fundamentally
unfair.” Even assuming Civ.R. 15(B) applied here,2 Father has not shown that the
In the context of continuing jurisdiction in divorce actions, the Tenth District
observed in [CITATION]:
Although Civ.R. 15(B) refers to pleadings, not motions, we find it
applicable to this case. Generally, the Ohio Rules of Civil Procedure govern
divorce actions, Civ.R. 75(A), and nothing in Civ.R. 75 specifically exempts
divorce actions from the application of Civ.R. 15(B). Moreover, a motion
invoking a domestic relations court's continuing jurisdiction operates much
like a complaint. When a party files such a motion, it must serve the motion
as if it was a complaint. Civ.R. 75(J). Like a complaint, the motion notifies the
non-moving party and the domestic relations court of the issues the moving
party seeks to resolve. Civ.R. 15(B), therefore, determines when the scope of
the motion must expand to include issues not raised in the motion.
[CITATION] at ¶ 22.
Likewise, in this case, the juvenile court’s continuing jurisdiction was invoked by
the filing of a motion. See Juv.R. 35(A); see also [CITATION] juvenile court acted arbitrarily, unreasonably or unconscionably in denying him
relief under Civ.R. 15(B).
In his motion for leave to amend his pleadings, Father did not identify
the “pleading” he sought leave to amend or the specific amendment he sought to
make to such pleading. He merely asserted that the juvenile court should grant his
motion to amend because the parties “recognized that Custody was at issue,” had “a
more than fair opportunity to address the issue” at the evidentiary hearing and
“Mother’s witnesses and exhibits bore directly on the issue of custody.”
However, the only motions Father had filed were a motion to show
cause and an amended motion to show cause, both of which related to Mother’s
alleged interference with his parenting time. Father had not filed any motion to
modify the juvenile court’s May 28, 2019 judgment entry allocating parental rights
and responsibilities. Further, the record reflects that Father withdrew his motions
to show cause during the hearing, after the parties reached an agreement with
respect to Father’s missed parenting time. Accordingly, there was no “pleading” of
Father’s to amend. The only motion before the court was Mother’s motion to modify
parenting time and support.
Despite Father’s claims to the contrary, we see nothing in the record
to indicate that Mother expressly consented to litigate the issue of whether the
Ohio-2879, ¶ 11 (“The Rules of Civil Procedure apply to custody proceedings in juvenile court except when they are clearly inapplicable.”), citing former Civ.R. 1(C)(7) and [CITATION]. Accordingly, we believe a similar rationale would apply here. juvenile court should change her designation as J.Q.-P.’s residential parent and legal
custodian. There is no transcript of the January 27, 2022 pretrial conference in the
record. Accordingly, we do not know what was said at that conference. The juvenile
court was in the best position to know what occurred at that conference, including
whether Mother understood that an “unpleaded issue” was part of the case, and to
what extent Mother would be prejudiced if Father’s motion for leave to amend were
to be granted and the issue of a possible change in residential parent/legal custodian
status were to be litigated at the September 20, 2022 evidentiary hearing. That the
parties may have previously been engaged in settlement discussions that included a
possible change in the residential parent does not mean Mother agreed to litigate
that “unpleaded issue” when those settlement discussions failed. When the
possibility of proceeding on Father’s unfiled motion was raised in the middle of the
evidentiary hearing, Mother did not agree to it.
That Mother presented evidence on issues relevant to custody at the
evidentiary hearing does not mean she impliedly consented to litigate the issue of
whether she should continue to be the residential parent and legal custodian of
J.Q.-P. At issue was her own motion to modify Father’s parenting time. The
evidence Mother presented was relevant to that motion.
Father has cited no relevant legal authority supporting his position
that the juvenile abused its discretion in denying his motion for leave to amend his
pleadings. Apart from Civ.R. 15(B) and two cases setting forth the standard of
review on a Civ.R. 15(B) motion, Father cites only three cases in his appellate brief — [CITATION] None of those cases
involves facts or circumstances even remotely similar to those at issue here. None
of those cases involves a situation in which a party sought leave to amend a pleading
or motion under Civ.R. 15(B) that was never filed and none of those cases involves a
situation where the parties were found to have impliedly consented to litigate
whether a parent’s status as a child’s residential parent and legal custodian should
be changed (or any other child custody issue).
[CITATION] involved the denial of a motion for leave to amend a
complaint under Civ.R. 15(A) to assert a prayer for punitive damages in a negligence
action. In that case, the Twelfth District held that the trial court did not abuse its
discretion in denying the motion because the appellant failed to make a prima facie
showing that he could present sufficient evidence to support a claim for punitive
damages. [CITATION] In [CITATION], the plaintiff sought to
recover damages after a physician perforated his intestine during a surgical
procedure. This court held that the trial court did not abuse its discretion in denying
the plaintiff’s Civ.R. 15(B) motion for leave to amend his complaint (which alleged
[SEGMENT 11]
lack of informed consent) to include a claim for battery because the plaintiff “failed
to make a prima facia showing that he could support, with facts, an allegation of
battery.” [CITATION] In [CITATION], the Fourth District held that the parties did not impliedly consent to try the unpleaded issue of whether appellee had a right
of action against appellant for contribution. [CITATION]
Because Father has not shown that the juvenile court acted
unreasonably, arbitrarily or unconscionably in denying his motion for leave to
amend his pleadings, Father’s first assignment of error is overruled.
Dismissal of Father’s Motion to Modify Parenting Rights
In his second assignment of error, Father asserts that the juvenile
court erred in dismissing his motion to modify custody. However, Father’s brief
contains no argument in support of his second assignment of error. An appellant's
brief must include “[a]n argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the reasons in support
of the contentions, with citations to the authorities, statutes, and parts of the record
on which appellant relies.” App.R. 16(A)(7). An appellate court may disregard an
assignment of error presented for review if the appellant fails to identify in the
record the error on which the assignment of error is based, fails to cite to any legal
authority in support of an argument or fails to argue the assignment separately in
the brief, as required under App.R. 16(A)(7). See App.R. 12(A)(2) (“The court may
disregard an assignment of error presented for review if the party raising it fails to
identify in the record the error on which the assignment of error is based or fails to
argue the assignment separately in the brief, as required under App.R. 16(A).”); [CITATION]. “An appellate court is not obliged to construct or develop arguments
to support an appellant’s assignment of error and ‘will not “guess at undeveloped
claims on appeal.”’” [CITATION], ¶ 56 (8th
Dist.), quoting [CITATION], ¶ 39 (9th Dist.),
quoting [CITATION]
, ¶ 31. “‘If an argument exists that can support this assigned error,
it is not this court’s duty to root it out.’” [CITATION], ¶ 72, quoting [CITATION], 22 (May 6, 1998).
Father’s generalized assertion that the juvenile court erred in
dismissing his motion to modify custody — without any explanation or citation to
supporting legal authority — does not satisfy Father’s obligation under
App.R. 16(A)(7). Accordingly, we disregard Father’s second assignment of error.
Furthermore, even if Father had argued his second assignment of
error, it is doubtful that we would have jurisdiction to consider it given that (1) no
ruling was made on the merits of Father’s motion, i.e., the motion was dismissed
without prejudice, (2) Father could refile it and (3) Father did not show that he
would relinquish any rights or would otherwise be prejudiced if required to refile his
motion. Here, the juvenile court in its judgment entry clearly left the door open for
Father to refile his motion to modify custody, noting that the court had “not made a
ruling on ‘change of circumstances’ for Father” and providing instruction regarding
the use of evidence “to establish their case-in-chief” “[i]f either party files a motion to modify the Judgment entry of May 28, 2019.” A dismissal that is not based on
the merits and is without prejudice is generally not a final, appealable order because
it does not prevent a party from refiling. See, e.g., [CITATION] (trial court’s dismissal of father’s motion to
modify child support and obligation for medical insurance after he failed to perfect
service of the motion on mother was not a final, appealable order); [CITATION] (trial court order
dismissing, for want of prosecution and failure to comply with court order, father’s
motions to modify parental rights and to show cause based on alleged interference
with parenting time was not a final, appealable order where dismissal was without
prejudice, father could refile his motions and father did not claim that there were
certain rights he would be relinquishing if he had to refile his motions or that a
refiling of his motions would prejudice his ability to seek the relief sought in his
motions).
Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common
Pleas Court, Juvenile Division, to carry this judgment into execution.
It is ordered that appellee recover from appellant the costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
V.C., :
No. 113181
Plaintiff-Appellee, :
v. :
O.C.,
:
Defendant-Appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: February 1, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-11-338367
Appearances:
Ronald A. Skingle, for appellee.
O.C., pro se.
EILEEN A. GALLAGHER, P.J.:
Father-appellant, O.C. (“Father”), pro se, appeals from the trial
court’s judgment entry (1) dismissing his motions to modify parental rights and
responsibilities and to show cause for contempt of court and (2) overruling his
motion to stay an order requiring him to serve appellee V.C. (“Mother”) and the guardian ad litem with copies of his motions and to pay a deposit for the guardian
ad litem’s fee. Father contends that the trial court erred and abused its discretion
by dismissing or overruling his motions without a hearing or referring the matter to
mediation.
For the reasons that follow, we dismiss this appeal.
Procedural and Factual Background
Mother and Father were married on August 21, 1999. They have four
children, two of whom are still minors — daughter C.T.C. (d.o.b. 8/24/06) and son
U.C.C. (d.o.b. 5/28/10). A final divorce decree was entered on April 25, 2018 that
included a shared parenting plan. Following the divorce, the parties filed a number
of post-decree motions seeking to terminate the shared parenting plan and modify
the parties’ child support obligations.
On September 25, 2020, the trial court issued a judgment entry that
terminated the parties’ shared parenting plan, designated Mother as the residential
parent and legal custodian of the parties’ minor children and ordered Father to pay
monthly child support. Father appealed to this court, challenging, among other
things, the trial court’s designation of Mother as the residential parent and legal
custodian of the minor children and its order requiring Father to pay child support
to Mother. [CITATION]
On appeal, this court affirmed the trial court’s decision to the extent
it terminated the parties’ shared parenting plan and designated Mother the residential parent and legal custodian of the parties’ minor children. Id. at ¶ 2, 72-
73. However, concluding that the trial court had applied the wrong standard in
determining Father’s child support obligation, this court reversed the child support
order and remanded the case for a redetermination of Father’s child support
obligation. Id. at ¶ 82, 96. On appeal after remand, this court affirmed the trial
court’s redetermination of Father’s child support obligation. [CITATION].
On July 18, 2023, Father filed (1) a motion to modify parental rights
and responsibilities, requesting that the court modify its September 25, 2020
judgment entry to designate him the residential parent and legal custodian of C.T.C.
and U.C.C. (“motion to modify parental rights”) and (2) a “motion to show cause for
contempt of court,” requesting that Mother be ordered to show cause why she
should not be held in contempt of court “for claiming C.T.C. in her 2022 tax return
and for multiple violations and interference with * * * parenting time” (“motion to
show cause”). Attached to the motions were certificates of service indicating that
copies of the motions had been “mailed and electronically transmitted to [Mother]
through her attorney.” On August 4, 2023, the trial court issued an order, stating
that Father’s motions would be “taken under advisement pending [Father’s]
compliance with the following orders on or before August 31, 2023”:
1. [Father] shall make an initial partial deposit of $1,500 to Attorney
John Lawson, who will be reappointed as the GAL; [and]
2. [Father] shall properly serve [Mother] and the GAL with all
pleadings he filed in this reopening. ([Father] served prior counsel of [Mother] who was relieved of further obligations to represent [Mother]
upon termination of the prior case.)
[SEGMENT 12]
The court indicated that “failure to comply will result in dismissal of this case.”
Father did not serve (or even attempt to serve) Mother or the
guardian ad litem (“GAL”) with copies of his motions as ordered by the trial court.
Instead, on August 29, 2023, Father filed a “motion to stay the judgment entry of
August 4, 2023” (“motion to stay”) (which he, again, served only on Mother’s
counsel) and further requested that the trial court order the parties to “mediate their
differences,” claiming that there was an “ongoing settlement agreement” between
the parties.
Mother’s attorney filed an opposition to Father’s motion to modify
parental rights, asserting that Father had not alleged a change in circumstances with
regard to U.C.C., that the issues Father raised in his motion with respect to U.C.C.
had been previously addressed in the trial court’s [CITATION] judgment
entry, this court’s [CITATION] opinion and a motion to modify custody that was
dismissed on [CITATION] and that the “relitigation of custody for C.T.C.” “did not
make sense” given that C.T.C. was 17, had “the ability to travel and stay with either
parent as she desires” and would soon be emancipated. Mother’s attorney filed an
opposition to Father’s motion to show cause in which Mother denied claiming C.T.C.
on her 2022 federal income tax return or limiting or interfering with Father’s
parenting time. Mother’s attorney filed an opposition to Father’s motion to stay in
which Mother denied that there was any “ongoing settlement agreement” between the parties and stated that she was not “agreeable to engage in mediation with
[Father].” Mother requested that the trial court’s August 4, 2023 order not be stayed
and that Father be required to comply with the terms of the order if he intended to
pursue his motions. Father filed replies in support of each of his motions (which he,
again, served only on Mother’s counsel) disputing Mother’s claims.
On September 7, 2023, the trial court issued a judgment entry
dismissing Father’s motion to modify parental rights and his motion to show cause
“for want of prosecution and failure to comply with [the] Court’s orders.” The trial
court also “overruled” Father’s motion to stay1 on the ground that it was “patently
without merit” and dismissed the case at Father’s costs. The trial court did not
specify in its judgment entry whether the dismissal was with, or without, prejudice.
Father appealed, raising the following six assignments of error for
review:
Assignment of Error 1: The trial court erred and abused its discretion
when, on 09/07/2023, it dismissed the motion to show cause for
contempt of court, filed by O.C. (Appellant) on 07/18/2023, without a
hearing, contrary to O.R.C. 2705.05(A) and O.R.C. 3119.82.
Assignment of Error 2: The trial court erred and abused its discretion
when, on 09/07/2023, it dismissed the motion to modify parental
rights and privileges filed by O.C. (Appellant) on 07/18/2023 without
In its September 7, 2023 order, the trial court states that Father also filed a “joint
motion to modify parental rights and responsibilities of CTC only” (“joint motion”) and
denied that motion as being “patently without merit.” Father, however, did not separately
file that motion with the trial court. A copy of the joint motion, signed only by Father,
was attached as an exhibit to his motion to stay as purported evidence of the “ongoing
settlement agreement” that Father contended “could be completed expeditiously * * *
through mediation or at pre-trial.” Accordingly, we do not further address that motion
here. a hearing or referral for mediation, as required by O.R.C. 3109.052(A)
and O.R.C. 3109.04.
Assignment of Error 3: The trial court erred and abused its discretion
when, on 09/07/2023, it dismissed the appellant’s motion to order the
parties for mediation and to stay the trial court’s order made on
08/04/2023 without any hearing, contrary to the requirements of
O.R.C. 3109.052(A) and Ohio Civ. R. 62(A).
Assignment of Error 4: The trial court erred and abused its discretion
when, on 08/04/2023, it ordered the appellant to “make an initial
partial deposit of $1,500 to Attorney John Lawson, who will be
reappointed as the GAL,” contrary to the provisions in Ohio R. Superi.
Ct. 48.02(H)(1)(a).
Assignment of Error 5: The trial court erred and abused its discretion
when, on 08/04/2023, it stated that the appellant “served prior
counsel of the Plaintiff who was relieved of further obligations to
represent Plaintiff upon termination of the prior case,” whereas the
appellant served the plaintiff’s present counsel (Mr. Ronald Skingle),
and did not serve the prior counsel of the plaintiff (Mr. Kevin Starrett).
The false statement made by the court, which formed the basis of the
court’s final decision on 09/07/2023, was contrary to the provisions of
O.R.C. 2921.11.
Assignment of Error 6: The trial court erred and abused its discretion
when, on 09/07/2023 it claimed that the “Defendant’s motions filed on
August 29, 2023, are patently without merit and are OVERRULED.”
(Emphasis deleted.)
Law and Analysis
Before considering the merits of Father’s assignments of error, we
must first determine whether we have jurisdiction to hear this appeal.
Our appellate jurisdiction is limited to reviewing judgments and
orders that are final. [CITATION], Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2505.02; R.C. 2505.03. “If an order is not final and appealable, then an appellate court has no
jurisdiction to review the matter and the appeal must be dismissed.” [CITATION]. Even if neither party raises a jurisdictional question, we must sua
sponte dismiss an appeal if it is not taken from a final appealable order or judgment.
See, e.g., [CITATION]
(prior to a review of the merits, an appellate court “has a duty to examine, sua
sponte, potential deficiencies in jurisdiction”), citing [CITATION]; see
also [CITATION] (“In
the absence of a final, appealable order, the appellate court does not possess
jurisdiction to review the matter and must dismiss the case sua sponte.”).
R.C. 2505.02(B) identifies the types of orders that qualify as final,
appealable orders. It states that
[a]n order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which
both of the following apply: (a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of
the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.
(5) An order that determines that an action may or may not be
maintained as a class action;
(6) An order determining the constitutionality of any changes to the
Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly,
including the amendment of sections 1751.67, 2117.06, 2305.11,
2305.15, 2305.234, 2317.02, 2317.54, 2323.56, 2711.21, 2711.22,
2711.23, 2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64,
4705.15, and 5111.018 (renumbered as 5164.07 by H.B. 59 of the 130th
general assembly), and the enactment of sections 2305.113, 2323.41,
2323.43, and 2323.55 of the Revised Code or any changes made by Sub.
S.B. 80 of the 125th general assembly, including the amendment of
sections 2125.02, 2305.10, 2305.131, 2315.18, 2315.19, and 2315.21 of
the Revised Code;
[SEGMENT 13]
(7) An order in an appropriation proceeding that may be appealed
pursuant to division (B)(3) of section 163.09 of the Revised Code.
A divorce action qualifies as a special proceeding. [CITATION] A “substantial right” is “a right that the United States Constitution, the
Ohio Constitution, a statute, the common law, or a rule of procedure entitles a
person to enforce or protect.” R.C. 2505.02(A)(1). “[A] party has a substantial right
to have a dispute adjudicated by a court of competent jurisdiction.” [CITATION] (10th Dist.), citing [CITATION] Likewise,
“[d]ecisions involving the care and custody of a child implicate substantial rights of
the natural parents.” [CITATION], citing [CITATION]; see also [CITATION] (recognizing that parents have a “fundamental
liberty interest” in “the care, custody, and management of their child”).
“[A]n order affects a substantial right for purposes of R.C.
2505.02(B)(2) only if ‘in the absence of immediate review of the order [the
appellant] will be denied effective relief in the future.’” [CITATION] at ¶ 10, quoting
[CITATION].
In this case, with the filing of his motions to show cause and to modify
parental rights, Father sought to invoke the continuing jurisdiction of the trial court
pursuant to Civ.R. 75(J). Civ.R. 75(J) provides, in relevant part: “The continuing
jurisdiction of the court shall be invoked by motion filed in the original action, notice
of which shall be served in the manner provided for the service of process under
Civ.R. 4 to 4.6.” (Emphasis added.) Rule 15(D) of the Local Rules of Practice of the
Domestic Relations Division of the Cuyahoga County Court of Common Pleas
(“Loc.R.”) states:
Service. It is the responsibility of the party filing the motion to perfect
service on the opposing party.
(1) Pending Cases. In pending cases, all motions shall be filed
with the Clerk of Courts and served on opposing counsel, on the self-represented party, and on the guardian ad litem,
where one has been appointed.
(2) Post-Decree. All post-decree motions invoking the
continuing jurisdiction of the court shall be accompanied by
Instructions for Service. Service through the Clerk of Courts
shall be made pursuant to Civ.R. 4 through 4.6.
Loc.R. 19(A) similarly provides, in relevant part: “A motion that
requests a change or modification of an existing child support * * * order must be
filed and served upon the opposing party according to methods of service in Civil
Rule 4 through 4.6.”2 See also [CITATION], at ¶ 15 (“The requirements
of Loc.R. 19 and Civ.R. 75(J) must be met to invoke continuing jurisdiction.”).
Service on a party’s attorney is not sufficient to invoke the continuing jurisdiction of
the trial court under Civ.R. 75(J). See, e.g., [CITATION],
¶ 11.
In [CITATION],
the lead opinion explained the rationale for the heightened service requirement
under Civ.R. 75(J) as follows:
The reason for this requirement is practical. In a domestic
relations case the trial court retains jurisdiction over certain issues,
including child support and visitation, even though disputes in these
areas may not arise for months or years after the initial divorce decree
2 Although Father’s motion was captioned solely as a motion to modify parental
rights, in his affidavit in support of the motion, he also requested that neither parent be
required to pay child support to the other and that Mother be required to refund Father
the child support payments he made since March 18, 2022, when C.T.C. began living with
Father “24/7.” is entered. Once the decree is final, it is unlikely that the parties would
stay in contact with their attorneys.
In other words, regular civil cases are “transactional” in nature:
that is, once the matter has been decided, apart from any appeal, the
case is “dead.” Domestic relations cases, on the other hand, are
“relational” in nature: even after the original case is ended by the
divorce decree, the relationships between parents are not ended just
because the marriage is ended. They still must interact in matters
concerning their mutual children, and the case law demonstrates that
these disputes are common. Resolving these disputes between the
parties requires the trial court to retain jurisdiction over the parties and
those restricted issues.
Because years can pass between the final decree and changed
circumstances motivating a motion for a change in custody or support,
therefore, practicality and due process require that the motion be
served upon the original party, in the same manner as a newly filed
case. Service other than according to Civ.R. 4 through 4.6, therefore, is
not sufficient guarantee of notice to fulfill due process requirements.
[CITATION]
The trial court, after noticing that Father had served only Mother’s
prior counsel (and not Mother) with copies of his motions, ordered that Father serve
Mother with copies of the motions. He also reappointed Attorney John Lawson as
GAL for the children and ordered that Father serve the GAL with all the motions he
had filed in the reopened case. The trial court, thereafter, dismissed Father’s
motions, sua sponte, “for want of prosecution and failure to comply with [the]
Court’s orders” when Father failed to comply with its order.
Civ.R 41(B)(1) states: “Where the plaintiff fails to prosecute, or
comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff’s counsel, dismiss an action or
claim.” Civ.R. 41(B)(3) further states: “A dismissal under division (B) of this rule
and any dismissal not provided for in this rule, except as provided in division (B)(4)
of this rule [dismissals for lack of personal or subject matter jurisdiction or failure
to join a party under Civ.R. 19 or 19.1], operates as an adjudication upon the merits
unless the court, in its order for dismissal, otherwise specifies.” This court has
previously questioned whether Civ.R. 41 applies to the dismissal of motions rather
than actions. See, e.g., [CITATION], at fn. 1, citing [CITATION]
(“We are not
convinced that Civ.R. 41 applies to motion practice because it is entitled ‘Dismissal
of actions’ and speaks specifically to dismissals of causes of actions and
counterclaims”); [CITATION] (“Civ.R. 41(B) permits a trial court to dismiss an action or claim for a party’s failure
to comply with any court order after proper notice to the party. Civ.R. 41(B), by its
very terms, applies only to the dismissal of an action or claim, not to the denial of a
motion for want of prosecution.”); see also [CITATION] (Civ.R. 41(B) “does not apply to post-
judgment motions to modify parental rights and responsibilities or to modify child
support.”), citing [CITATION] Even if Civ.R. 41(B) applied to motions, Civ.R. 75(P), effective
July 1, 2023 — which likewise refers to the dismissal of “action[s]” rather than
motions — would preclude the trial court’s dismissal of Father’s motions from[ operating as an adjudication on the merits under Civ.R. 41(B)(3). Civ.R. 75(P)
states: “Notwithstanding Civ.R. 41, any dismissal of a divorce, dissolution,
annulment, or legal separation action by a court or party, other than a denial on the
merits, shall not operate as an adjudication of the merits or a bar to a subsequent
filing of the action.”
The trial court’s September 7, 2023 judgment entry dismissing
Father’s motions to show cause and to modify parental rights and overruling
Father’s motion to stay compliance with the court’s August 4, 2023 order was not
based on the merits, i.e., no final ruling was made on the substance of the motions
to show cause or to modify parental rights. A dismissal that is not based on the
merits and is without prejudice is generally not a final, appealable order because it
does not prevent a party from refiling. M.E.D. at ¶ 14, citing [CITATION]. Father could refile his motions, ensure that Mother is properly
served and reinvoke the continuing jurisdiction of the trial court. See, e.g., [CITATION]. Accordingly,
the trial court’s dismissal here was without prejudice.
In [CITATION], this court recently dismissed an appeal
in which a parent sought to invoke the continuing jurisdiction of the trial court under
Civ.R. 75(J) for lack of appellate jurisdiction. In that case, the trial court dismissed
a father’s motion to modify child support and obligation for medical insurance after
he failed to perfect service of the motion on the mother, i.e., serving the mother’s attorney rather than the mother “in contravention of the express requirements of
[SEGMENT 14]
Loc.R. 19 and Civ.R. 75(J).” Id. at ¶ 3, 8. This court held that the trial court’s
dismissal was a dismissal “otherwise than on the merits,” that it did not prevent the
father from refiling, that the father had, in fact, filed a new motion to modify child
support, that a judgment without personal jurisdiction over the defendant is void
and that the dismissal was, therefore, not a final, appealable order. Id. at ¶ 13-16.
The dissent argued that a motion to modify child support affected a
substantial right even if it could be refiled because the modification of support could
not be retroactive beyond the date of the request. Thus, the dissent maintained, “any
refiling of the motion would limit the date upon which the subsequent modification,
if any, could be retroactively awarded, which affects ‘a substantial right in an action
that in effect determines the action and prevents judgment’” under R.C.
2505.02(B)(1). Id. at ¶ 18, citing [CITATION] and [CITATION]. The dissent further noted: “Refiling a motion to
modify child support will not afford the party any relief. If no immediate appeal is
permitted, none can be had and the domestic relations court’s decision would never
be subject to appellate scrutiny.” [CITATION] at ¶ 18-19.
There are some potential differences between [CITATION] and this case.
First, in [CITATION], this court held that the trial court lacked jurisdiction over the
father’s motion under Civ.R. 75(J) (and that any judgment would be void) because
the mother was not properly served and promptly raised the issue. Id. at ¶ 1, 4-6, 8, 13-15; see also [CITATION] (where
defendant served plaintiff’s attorney but not plaintiff with motion to modify support
and plaintiff timely objected to lack of service, trial court’s continuing jurisdiction
was not properly invoked and trial court did not err in dismissing motion). In this
case, Mother’s attorney filed oppositions to Father’s motions on Mother’s behalf
without objecting to the insufficiency of service of process or Father’s failure to
properly invoke the trial court’s continuing jurisdiction. However, in the opposition
to the motion to stay Mother’s counsel filed on her behalf, she requested that the
trial court’s August 4, 2023 order not be stayed and that Father be required to
comply with the terms of the order if he intended to pursue his motions.
Accordingly, there is an issue — which the parties have not addressed — as to
whether Mother waived insufficiency of service and any objection to the trial court’s
continuing jurisdiction. See, e.g., [CITATION], ¶ 25 (“Lack of proper service under Civ.R. 75(J) can * * * be waived.
Where a party appears in court, fails to object to improper service pursuant to Civ.R.
75(J) and defends on the merits of the case, that party will be deemed to have waived
the issue of improper service.”), citing [CITATION], ¶ 26, and [CITATION], ¶ 37. But see [CITATION]
(where appellee failed to serve her motion for contempt on appellant, appearance
by appellant’s counsel filing motions to continue hearing on contempt motion was
insufficient to invoke the court’s continuing jurisdiction). Second, Father’s motions here did not just involve a request for modification of child support. They included
a motion to modify parental rights and a motion to show cause related to alleged
interference with parenting time.
As one court has observed, “[i]n the context of domestic relations
cases, there appears to be * * * a difference in holdings based on the application of
R.C. 2505.02(B) to specific facts.” [CITATION] (holding that “the impact on a substantial right based on a
dismissal without prejudice in a domestic relations case might give rise to a final,
appealable order, but only where the effect on the substantial right is both alleged
and prejudicial, i.e., where the impact cannot be rectified through equitable
considerations in the refiled cause or motion” and that where appellant-wife had the
ability to seek redress for her inability to enforce the prior temporary support orders
in dismissed divorce action through equitable resolution in a second divorce action,
the trial court’s dismissal without prejudice of first divorce action did not affect a
substantial right and, therefore, was not a final, appealable order).
In [CITATION], for example, the Fifth District held that a judgment entry involuntarily
dismissing a father’s motion for modification of parental rights for lack of
prosecution was a nonfinal order because it did not affect any substantial right of
the father. Id. at ¶ 39-40. In that case, the father requested a modification of his
parenting time to accommodate his work schedule. Id. at ¶ 40. In an affidavit, the
father stated that the parties had been successfully cooperating to accommodate appellant’s work schedule up to the time that the motion for relief was filed. The
father did not claim that there were certain rights that he would be giving up in the
event that he would have to refile his request for modification or that a refiling of the
motion for modification would prejudice his intent to seek modification of his
parenting time and did not deny that the matter could be refiled for further
consideration by the trial court. [CITATION] The court held that because the trial court’s
order of dismissal for want of prosecution was a nonfinal order, the trial court’s
subsequent order declining to grant Civ.R. 60(B) relief could not be a final order and
dismissed the father’s appeal for lack of jurisdiction. [CITATION] at ¶ 40-41; see also [CITATION] (where there
were no children to consider and no orders in effect for spousal or child support,
trial court’s dismissal of divorce action, without prejudice, did not “foreclose
appropriate relief in the future upon the potential refiling of the case” and, therefore,
was not a final appealable order).
[CITATION] by contrast, the Ninth District held that the dismissal without prejudice
of a mother’s motion to reallocate parental rights was a final, appealable order. In
that case, the mother filed a motion to reallocate parental rights and responsibilities
in June 2012, arguing that the parties’ shared parenting plan should be terminated
because the children’s father had been arrested on charges of possessing marijuana.
[CITATION] at ¶ 3. A magistrate heard the matter in September 2012, at which time evidence
was taken and the children were interviewed in camera. [CITATION] The magistrate referred the matter to mediation and ordered the children to attend counseling with the
father stating that the father would have parenting time “as the children and [f]ather
agree.” [CITATION]. In February 2013, the magistrate again ordered counseling and stated
that “[e]ither party may request a second initial hearing after ten sessions are
completed. Violations of this Order will result in contempt and a probable jail
sentence, and dismissal of the non-complying party’s motions.” [CITATION].
Five months later, the magistrate issued a decision dismissing the
mother’s motion to reallocate parental rights because neither party had requested
another hearing date after the completion of ten counseling sessions. [CITATION] at ¶ 4.
Over the mother’s objections to the dismissal of her motion with prejudice and
without notice, the trial court adopted the magistrate’s decision in part and
dismissed the mother’s motion without prejudice, noting that she was free to refile.
[CITATION].
On appeal, the Ninth District concluded that, “on the specific facts of
this case,” the trial court’s dismissal order was a final, appealable order because it
affected a substantial right, i.e., the mother’s right to make decisions with respect to
the care and custody of her child. [CITATION] at ¶ 8-9. The court explained:
In this case, [the mother’s] motion to reallocate parental rights
based on the alleged changed circumstances in 2012 has been
dismissed, and there is no final judgment from which she can obtain
relief by means of appeal in the future. Although it is true that she can
file another motion, that is a qualification without meaning in this
context. A parent can always invoke the continuing jurisdiction of the
domestic relations court to consider reallocation of parental rights.
[The mother] can certainly file a new motion; such is her right. What
she cannot do is obtain a ruling on the motion that she filed in 2012 based on circumstances as they existed at that time and upon which the
trial court took evidence at that time. Therefore, on the specific facts of
this case, we conclude that [the mother’s] appeal is final and appealable
under R.C. 2505.02(B)(2) because the trial court’s order affects a
substantial right in the context of a special proceeding.
[CITATION] at ¶ 9; see also [CITATION] (reviewing the merits of the dismissal without prejudice of multiple postdecree
motions without specifically addressing jurisdiction).
In this case, Father does not claim that his motions could not be
refiled for further consideration by the trial court if he were to properly invoke its
continuing jurisdiction or that he would be prejudiced if required to refile his
[SEGMENT 15]
motions. Father did not state (in his motions or in this appeal) that there were
certain rights he would be relinquishing if he had to refile his motions or that a
refiling of his motions would prejudice his ability to seek the relief sought in his
motions with respect to his children. In the affidavit Father submitted in support of
his motions, Father asserted that C.T.C. had already been living with him 24/7 for
over 15 months with Mother’s agreement and that he was having parenting time
with U.C.C. After filing his motions, instead of seeking prompt resolution of the
motions, Father filed a motion to stay based on the existence on a purported
“ongoing settlement agreement” that related to C.T.C. only.
Based on the particular facts and circumstances of this case, we
conclude that the trial court’s September 7, 2023 order dismissing the matter for
lack of prosecution was not a final, appealable order.
Appeal dismissed. It appears that there are no court ruling citations in the provided part of the court ruling. Therefore, no replacements are necessary. The text remains as follows:
It is ordered that appellee recover from appellant the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
LISA B. FORBES, J., and
ANITA LASTER MAYS, J., CONCUR
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[Cite as [CITATION].]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF OHIO
M.E.K., :
Plaintiff-Appellee, : No. 112942
v. :
P.K., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
RELEASED AND JOURNALIZED: March 14, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-357855
Appearances:
Stafford Co., L.P.A., and Joseph G. Stafford, Nicole A.
Cruz, and Kelley R. Tauring, for appellee.
P.K., pro se. SEAN C. GALLAGHER, J.:
P.K.1 appeals the domestic relations court’s judgment entry disposing
of several post-decree motions that in pertinent part modified the child support
obligation and reallocated parental rights to M.E.K. Although M.E.K. initially
appeared in this appeal to challenge husband’s motion to stay enforcement of the
order, she has not filed an appellate brief. Under App.R. 18(C), this panel is
permitted to “accept the appellant’s statement of the facts and issues as correct and
reverse the judgment if appellant’s brief reasonably appears to sustain such action.”
For the following reasons, and after reviewing the arguments as presented and the
relevant portions of the record, we affirm in part, reverse in part, and remand for
further proceedings.
According to P.K.’s statement of the case, he filed a motion to modify
a parenting order, attempting to obtain temporary custody of his children, in 2019.
Based on that motion, a guardian ad litem (“GAL”) was appointed on behalf of the
children, and the matter was set for hearing. The GAL was originally appointed in a
dual capacity as a GAL and attorney for the children, who were also made parties to
the action under Civ.R. 75(B)(2). The trial court later clarified that the GAL was not
serving as an attorney for the children, citing Ohio Rules of Superintendence
48.02(E),2 but no order rescinding the earlier decision to join the children as parties
In order to protect the children’s identity, the parents’ names are not used.
That rule provides: “If a court appoints a guardian ad litem in an allocation of
parental rights and responsibilities case, the guardian ad litem shall be appointed only to or appointing them new counsel has been identified. Throughout that time, P.K.
represented himself. M.E.K. filed a motion for attorney fees, challenging P.K.’s
conduct. In 2020, P.K. hired counsel, who withdrew in 2022. [CITATION], ¶ 3. In March 2023, a hearing on the
motion was held.
According to the magistrate’s decision, the parties were divorced in
2016 after approximately 11 years of marriage. The couple have three children. The
final judgment entry of divorce provided, upon agreement of the parties, that M.E.K.
would be the sole legal custodian and residential parent of the children. P.K. had
weekly visitation on Wednesday afternoons and alternating weekends. The children
did not fare well after the divorce. According to the magistrate’s findings of fact,
they “began to exhibit signs of developmental challenge and extreme alienation”
from M.E.K. The children’s “devotion” to P.K. was described as “cult-like.” M.E.K.
attempted to engage the children in therapy but was sabotaged by P.K.
The GAL investigated the situation and recommended that all visits
between P.K. and the minor children be supervised and all telephone contact
between the minor children and P.K. be monitored. After review of the GAL’s report,
all visitation between P.K. and the minor children was temporarily suspended out
of concern for their well-being. The GAL released a supplemental report and
recommendation concluding that each child had individually improved their well-
represent the best interest of the child and shall not also be appointed as the attorney for
the child.” being and their relationship with M.E.K. following the suspension of P.K.’s
visitations. The children’s mental health was described as fragile, with ongoing
therapy and limited visitation with P.K. recommended.
As the evidence presented at the hearing demonstrated, according to
the magistrate’s findings of facts, P.K. himself was undergoing mental health
treatment because he suffered from “anxiety and depression due to the situational
stress of the pending domestic relations litigation.” He also presented with
schizotypal personality disorder traits (“STPD”), and according to one of his treating
mental health professionals, “demonstrated limited insight into how his attitudes
and behaviors impacted others.” STPD “is a mental health condition manifested by
a consistent pattern of intense discomfort with close relationships and social
interactions; people with STPD possess distorted views of reality, superstitions and
unusual behaviors.” P.K. hired a second mental health professional to review
transcripts of the telephone conversations between P.K. and his children. Upon her
review, she opined that P.K.’s “discussions with the minor children ‘were not helpful
to [the minor children’s] mental health and were clearly inappropriate.’”
In response to P.K.’s motion to modify his parental rights, M.E.K.
filed a motion seeking attorney fees and a motion to modify the visitation schedule.
Those motions were also discussed and considered along with P.K.’s motion, along
with a bevy of other motions not relevant to this appeal. With respect to the attorney
fees and litigation expenses, M.E.K. claimed that P.K.’s conduct delayed the proceedings and required significant and well-researched responses. M.E.K. sought
$136,000 in compensation.
The magistrate issued a thorough decision resolving several
outstanding motions, but as pertinent to this appeal, the magistrate denied P.K.’s
motion to modify his parental rights, citing the children’s best interest, granted
M.E.K.’s motions for attorney fees and to modify visitation, and granted the GAL’s
requested fees. The magistrate concluded that M.E.K.’s request for attorney fees
was too broad and relied on a “heavily redacted” fee bill that included work
performed for other issues or was otherwise too vague to constitute demonstrative
proof of the fees expended. According to the magistrate, “the fee bill was redacted
to the extent that this Court cannot reasonably determine who provided what
services, and at what rate. Specifically, when reviewing each item, time is noted, but
there is no dollar amount applied to each service.” The magistrate then noted
several other material issues with the evidence M.E.K. submitted to support her
request for $136,000 in attorney fees. The magistrate awarded $12,500 in attorney
fees to M.E.K. as being reasonable and equitable for M.E.K.’s counsel’s services
related to the current litigation and based on weighing P.K.’s conduct against
M.E.K.’s counsel’s conduct, described as unnecessarily delaying the proceedings ten
months through his claimed “heavy schedule.”
Both parties objected to the magistrate’s decision. The domestic
relations court adopted the magistrate’s decision denying P.K.’s motion to modify
his parental rights, but the court sustained in part M.E.K.’s objection to the award of attorney fees, increasing the amount of attorney fees to $40,000 based on P.K.’s
conduct in the underlying litigation and because P.K. did not “object to the
reasonableness of the services rendered.” No explanation of how the court arrived
at the $40,000 in fees was provided.
This appeal timely followed. P.K., proceeding pro se, raises three
arguments in which he claims that (1) the children were deprived of their right to an
attorney throughout the proceedings; (2) the domestic relations court erred by
awarding the GAL her fees; and (3) the domestic relations court erred by increasing
the award of attorney fees without considering the statutory factors and by solely
relying on P.K.’s conduct and ignoring M.E.K.’s counsel’s dilatory behavior.3
P.K. first argues that the domestic relations court erred by failing to
appoint counsel to represent the minor children to preserve the children’s wishes.
He claims this failure is structural, requiring a reversal.
Generally, children are not parties to divorce proceedings or the
ancillary custody matters. See [CITATION],
13 N.E.3d 1146, ¶ 1 (holding that a child is not a proper party in a divorce action or
P.K. and the children suffer from mental health issues necessitating treatment.
The domestic relations court modified P.K.’s custody and visitation based on his failure
to recognize the impact his issues have on the children, but that conclusion was based on
the children’s and P.K.’s separate treatment providers, who all reached the same
conclusion. The domestic relations court modified the visitation schedule but permitted
P.K. to offer a change in circumstances if the children’s and his healthcare providers agree
that it would be in the children’s best interest. P.K. also argues that this panel should
order the domestic relations court to appoint one neutral healthcare provider to render
an opinion on all of their health concerns. That is well beyond the power of this court.
Given the complexity of mental health issues and the nuances of providing professional
services to children and adults, it is not a court’s place to dictate treatment options. its ancillary custody proceedings). Civ.R. 75(B)(2) authorizes the appointment of
[SEGMENT 2]
counsel for the children under the court’s discretionary authority. If “it is essential
to protect the interests of a child, the court may join the child of the parties as a party
defendant and appoint a guardian ad litem, and legal counsel, if necessary for the
child and tax the costs.” Civ.R. 75(B)(2). The appointment of counsel for the
children is within the trial court’s discretion but is not a mandatory obligation.
In this case, the domestic relations court originally joined the children
as parties to the post-decree action and appointed a GAL to represent the best
interest of the three children and to act as their attorney. The trial court later
clarified that the GAL was not serving as an attorney for the children citing Ohio
Rules of Superintendence 48.02(E), which precludes the GAL from acting in that
dual capacity in an allocation of parental rights case, but no order rescinding the
earlier decision to join the children as parties or appointing them new counsel has
been identified.
P.K. asks for the children’s lack of counsel to be declared structural
error, but he has not provided any authority for review specific to a child’s right to
counsel in post-decree custody proceedings. Nor has he addressed any of the factors
under Cuyahoga Domestic Relations Loc.R. 40 necessitating legal counsel to be
appointed for the children. Importantly, P.K. has not presented any discussion as
to why the children required legal counsel during the underlying proceedings. It is
not the role of an appellate court to flesh out underdeveloped arguments on behalf
of one of the parties. See [CITATION] 4034, 19 N.E.3d 900, ¶ 19, citing [CITATION]. We are limited based
on the argument presented, which superficially describes a constitutional right to
counsel under the federal Constitution.
As the Ohio Supreme Court has concluded, “[t]he court’s authority to
appoint a GAL enables it to protect the child’s interests in innumerable ways.” In re
A.G. at ¶ 75, citing [CITATION] and [CITATION]. This provides
the domestic relations court “considerable latitude” to “manage the litigation itself
in a manner that will also achieve what is in the child’s best interest.” Id.
P.K.’s entire argument focuses on the procedural fact that the children
lacked independent counsel, but he has not identified anything in the record
demonstrating that the children were prejudiced or that their best interests were not
adequately represented by their legal guardian and through the appointment of the
GAL acting solely in that capacity. Upon review of the record, it is clear that the GAL
represented the children’s best interest, and nothing demonstrates that
appointment of legal counsel was necessary. There is no error, plain or otherwise.
Related to the GAL’s representation, P.K. also argues that his
obligation to pay half of her fees was in error. P.K. has not cited any authority to
support his claim that there is no procedure authorizing the domestic relations court to impose the GAL’s fees on the parties. See App.R. 16(A)(7). Inasmuch as the
argument was presented in the conclusory fashion, it must be overruled. In short,
despite the lack of appellate briefing from M.E.K., we cannot conclude that P.K.’s
brief reasonably demonstrates the existence of reversible error with respect to the
children’s right to counsel or the award of fees to the GAL appointed in the
underlying proceedings. The first two arguments are overruled.
And finally, P.K. argues that the domestic relations court erred by
increasing the award of attorney fees without considering the statutory factors, such
as the income disparity favoring M.E.K., and by solely relying on P.K.’s conduct
while at the same time ignoring M.E.K.’s counsel’s dilatory behavior throughout the
same time period, which the magistrate considered as weighing on the decision to
award a lesser amount of fees and expenses than requested by M.E.K.
M.E.K. sought fees and expenses under R.C. 3105.73(B), which
provides that in a post-decree motion or proceeding arising out of a divorce action,
“the court may award all or part of reasonable attorney’s fees and litigation expenses
to either party if the court finds the award equitable.” In determining whether an
award of attorney fees and expenses is equitable, the court may consider the parties’
income, conduct, and any other relevant factors deemed appropriate. R.C.
3105.73(B). “An award of attorney fees under R.C. 3105.73(B) lies within the sound
discretion of the trial court.” [CITATION], ¶ 43, citing [CITATION], ¶ 15, and [CITATION]
====== End of Instruction ====== [CITATION]. “[I]n order for a party to prevail on a claim for
attorney’s fees, the moving party must demonstrate that the fees were reasonable
and necessary.” [CITATION], and [CITATION].
In this case, the magistrate presented an unflattering, but thorough,
description of the evidence submitted in favor of M.E.K.’s request for $136,000 in
attorney fees and litigation expenses supposedly expended in the post-decree
proceedings. According to the magistrate’s conclusion, “the fee bill was redacted to
the extent that this Court [could not] reasonably determine who provided what
services, and at what rate. Specifically, when reviewing each item, time is noted, but
there is no dollar amount applied to each service.” In addition, M.E.K. included
billing for services rendered in other matters, which were pending before other
courts, based on the description of services rendered. In other line items, the
magistrate noted that the billing included significant research and review periods
for ambiguous services. The magistrate found that “review and organize file” was
billed 35 times for “unreasonable amounts of time” and without providing context
for the services. Despite the noted deficiencies, the magistrate awarded M.E.K.
$12,500 for fees it found to be reasonable and equitable.
M.E.K. objected to the magistrate’s findings of fact and conclusions of law claiming she was entitled to $130,477.80 in attorney fees and expenses based
on a redacted fee bill because in [CITATION], the Ohio Supreme
Court concluded R.C. 149.43(A)(1)(v) exempts a school district from having to
disclose itemized attorney-fee bills through a public records request. According to
M.E.K., the magistrate was not authorized to punish her for submitting the “heavily
redacted” fee bill because she had a right to protect her attorney-client privilege
despite her request for fees. She further argued that all the services were reasonable
and necessary according to her attorney’s conclusory testimony to that effect, and
therefore, the magistrate’s decision to award $12,500 was an abuse of discretion.
The domestic relations court sustained M.E.K.’s objection because
P.K. did not object to the fee bill or the reasonableness of the services rendered,
improperly shifting the burden to P.K. to disprove that the requested attorney fees
were reasonable before M.E.K. satisfied her burden to prove the fees were
reasonable and because P.K. engaged in dilatory behavior. Ultimately, the court
modified the magistrate’s decision to award M.E.K. $40,000 for attorney fees but
otherwise adopted the magistrate’s findings of fact on this topic. There is no
In [CITATION],
the panel relied on [CITATION] in concluding that the party against whom attorney fees
were awarded had not demonstrated entitlement to unredacted attorney-fee bills in order
to contest the reasonableness of the fees. That case is limited in application because the
panel expressly concluded that the appellant failed to present an argument. It does not
stand for the proposition that a party seeking attorney fees may redact a description of
the services provided that is necessary to determining whether the requested fees were
reasonable. See, e.g., [CITATION]. explanation as to how that figure was derived.
In this appeal, P.K. claims the domestic relations court erred in
awarding fees because under R.C. 3105.73(B), fees are not automatic and require the
court to consider both the conduct of the parties and their income in order to
determine if an award of fees is reasonable and equitable. P.K. focuses on the
dilatory behavior of M.E.K.’s counsel of record. That was an issue extensively
considered by the magistrate who concluded that M.E.K.’s counsel contributed to
the delays in the proceeding due to his “intentional and unnecessarily busy
schedule,” which according to the magistrate, delayed the final hearing on the
pending motions for over ten months. Further, P.K. identifies aspects of the record
in which M.E.K.’s counsel displayed animosity toward the magistrate conducting the
hearing.
P.K. is referring to an exchange that occurred during the February 28, 2023
hearing. The magistrate required the parties to conduct the entire examinations of
witnesses when the witnesses were on the stand expressly based on the delays caused by
both parties in the proceeding. P.K. represented himself pro se at the time. M.E.K.’s
counsel objected to that procedure, claiming he was entitled to dictate when a witness
could be called. The magistrate explained the decision, citing M.E.K.’s counsel’s general
past unavailability when scheduling matters in the case. According to the magistrate, if
the witnesses were not examined when on the stand, the hearing would likely be delayed
because counsel rarely consented to timely scheduling citing his busy schedule. The
magistrate described counsel’s behavior as “combative” and in a voice that “is
disrespectful and discourteous.” M.E.K.’s counsel responded: “I will say things
concerning the Court’s handling of this matter, the Court’s lack of understanding the
issues presented in this case, the Court’s inaccurate statements concerning my schedule,
and what has happened in this case, and my general disappointment in the Court’s
handling of this matter.” Counsel went on to accuse the magistrate of being “jealous” of
his success and legal prowess. Toward the end of the monologue, counsel stated that he
meant no offense, but was frustrated by P.K.’s conduct. The magistrate concluded the
hearing with no further commentary. Although inartfully presented, P.K.’s last argument has merit.
[SEGMENT 3]
Contrary to the domestic relations court’s conclusion in modifying the fee award,
P.K. objected to the fee bill being submitted in its redacted form during the March 3,
2023 hearing on the matter because it precluded him from challenging the
reasonableness of the fees and expenses. That objection was overruled based on
P.K. having time to review and consider the redacted document. P.K. also
unsuccessfully objected to the fee bill not identifying which employee provided the
stated services in discussing the separately provided hourly rate sheet for M.E.K.’s
counsel’s firm. Upon that objection, however, the magistrate noted that the fee bill
contained no amounts for the services rendered and no distinction as between the
various members of the law firm who provided the services. Instead, M.E.K.
presented a summary of the hourly rate for various employees of the law firm, but
nothing tying those rates to the itemized services. The itemized hours totaled
$127,992.50 for services rendered, with the remaining amount comprised of generic
research and copying expenses, but none of the hours indicated who provided the
services other than “Stafford Law Co., L.P.A.”
M.E.K. failed to file merit briefing. Under App.R. 18(C), this panel is
permitted to “accept the appellant’s statement of the facts and issues as correct and
reverse the judgment if appellant’s brief reasonably appears to sustain such action.”
M.E.K., as the party requesting fees and litigation expenses under R.C. 3105.73(B),
bore the burden to demonstrate the reasonableness of the fees and expenses. There
is no requirement that the opposing party object to the reasonableness of the fees until the moving party meets their burden of production. See [CITATION],
[moving party sufficiently demonstrated the reasonableness of the fees because she provided
an affidavit setting forth “a breakdown of the amount by date and employee billing,
the hourly fee amount for each person who worked on the case, and the time, skill,
and labor involved in incurring the fees”).
On this point, the trial court erred in awarding M.E.K. $40,000 in
attorney fees and litigation expenses based on the stated rationale that P.K. failed to
object to the reasonableness of the services and demonstrated a pattern of improper
conduct. P.K. did in fact object to the billing in question, and according to the
magistrate’s findings of fact, M.E.K. failed to demonstrate the reasonableness of the
services rendered by submitting a redacted fee bill. The burden never shifted to P.K.
to demonstrate the unreasonableness of the fees or services. See [CITATION]
(billing entries containing redacted attorney-client information precluded the
magistrate from determining the reasonableness of the requested fees). Further,
upon review of the redacted document, it appears that M.E.K. was attempting to
recoup for all her attorneys’ services from August 2019 through February 2023 —
not all of which pertained to P.K.’s alleged dilatory conduct.
Although there is little doubt that M.E.K. could be entitled to some
fees and expenses based on P.K.’s conduct, the sole question is the amount of that
award. On that point, the domestic relations court’s decision, modifying the magistrate’s decision, did not provide any explanation as to how the $40,000 was
derived from what was described by M.E.K. and the magistrate as a redacted bill
that precluded the magistrate from assessing the reasonableness of the amount
requested. See [CITATION] (“[T]he trial court has the authority to determine whether the magistrate’s findings
of fact are sufficient to support the conclusions of law made, and to reach a different
legal conclusion as long as that conclusion is supported by the magistrate’s findings
of fact.”), citing [CITATION]. Although modifying the award, the domestic
relations court adopted the remainder of the magistrate’s decision, including the
related findings of fact that found the fee bill too redacted to the point of the court
not being able to determine the reasonableness of the requested fees and expenses.
P.K.’s final argument is sustained. The judgment awarding attorney
fees is vacated because P.K.’s brief reasonably appears to sustain that conclusion
based on the record provided. Notwithstanding, a remand for further proceedings
is required in light of the procedural posture of this particular case. As concluded in
[CITATION], although
parties are generally precluded from getting a “second bite at the apple” when it
comes to presenting evidence at trial, there are notable exceptions such as “a
reversal on appeal.” Id. at ¶ 17; but see [CITATION] (a party who failed to appear at the evidentiary
hearing cannot rely on Civ.R. 60(B) as a mechanism to supplement the lack of an evidentiary record). In this case, the domestic relations court overruled P.K.’s
objection to M.E.K.’s reliance on the redacted fee bill and concluded that some
award of fees was necessary. Accordingly, a remand for a new hearing is necessary
in light of M.E.K.’s reliance on the court’s decision that directly impacted the
evidence presented. See, e.g., [CITATION]
(affirming the award of attorney fees following a remand from the direct appeal in
which the panel concluded that the original award of attorney fees was based on
insufficient evidence); [CITATION]
(concluding there was insufficient evidence of the
reasonableness of the fees and remanding the matter for further proceedings);
[CITATION]
(reversing
the imposition of attorney fees based on the lack of evidence but remanding the case
to the trial court for further proceedings on the issue).
Based on the foregoing discussion, the decision of the domestic
relations court is affirmed in part and reversed in part. The decision is affirmed in
all respects except as to the award of attorney fees and litigation expenses. That
award of attorney fees and litigation expenses is reversed and hereby vacated, and
the matter remanded for a new hearing to determine the amount of fees and
litigation expenses M.E.K. incurred as a result of P.K.’s conduct.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion. It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
EMANUELLA D. GROVES, J., CONCURS;
LISA B. FORBES, P.J., CONCURS IN PART AND DISSENTS IN PART (WITH
SEPARATE OPINION)
LISA B. FORBES, P.J., CONCURRING IN PART AND DISSENTING IN PART:
I respectfully agree with the majority regarding the disposition of
P.K.’s first and second arguments. I further agree with the majority regarding the
analysis of P.K.’s third argument. However, I would reverse and vacate the attorney
fee and litigation expenses award without remanding to the trial court for a new
hearing. As the majority noted, the lower court found that M.E.K.’s attorney
presented as evidence “a redacted bill that precluded the magistrate from assessing
the reasonableness of the amount requested.” I agree with the majority that M.E.K.
failed to meet her burden of demonstrating the reasonableness of the fees and
expenses. M.E.K. should not get a second bite at the apple after failing to produce
sufficient evidence at trial. See [CITATION]
====== End of Part of the Court Ruling ====== 4037, at ¶ 17 (“Parties do not generally get a ‘second bite at the apple’ when it comes
to presenting evidence at trial.”); [CITATION] at ¶ 54 (10th Dist.) (finding that, when a party failed to present evidence at a
hearing and then attempted to vacate the judgment, “[s]uch ‘second bites at the
apple’ are not authorized by the Rules of Civil Procedure”).
====== Updated Court Ruling ======
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
[CITATION], :
Plaintiff-Appellee, :
No. 112831
v. :
D.P.M., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: March 7, 2024
Civil Appeal from the Cuyahoga County, Court of Common Pleas
Domestic Relations Division
Case No. DR-15-358274
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A.
Cruz, and Kelley R. Tauring, for appellee.
Costanzo & Lazzaro, PPL and Raymond J. Costanzo, for
appellant.
MARY EILEEN KILBANE, P.J.:
Defendant-appellant D.P.M. (“Husband”) appeals the trial court’s
May 11, 2023 and May 25, 2023 judgment entries that granted plaintiff-appellee
[SEGMENT 4]
[CITATION]’s (“Wife”) motion to dismiss Husband’s postdecree motions for lack of service. For the following reasons, we dismiss in part, reverse in part, and remand
for further proceedings consistent with this opinion.
Factual and Procedural History
On April 18, 1997, Wife and Husband married and during the
marriage had one child, A.M. (d.o.b. 10/23/2006). On July 18, 2017, the trial court
executed a divorce decree that dissolved the parties’ marriage and addressed child
and spousal support. Pursuant to the divorce decree, Husband was ordered to pay
$1,000 per month for child support and $104 per month for cash medical support
as well as $4,500 for 78 months in payment of spousal support.
On February 19, 2020, the Office of Child Support Services (“OCSS”)
issued an Administrative Adjustment Recommendation (“OCSS
Recommendation”) as to Husband’s monthly child support and cash medical
support obligations for A.M. The OCSS Recommendation indicated that Husband
should pay $817.88 and $20.07 for child support and cash medical support,
respectively. The OCSS Recommendation also stated that the trial court had granted
a deviation under the existing order, but OCSS could not determine the monetary or
percentage of the deviation.
On March 4, 2020, Husband filed a motion for court hearing or
judicial review (“motion for judicial review”), pursuant to [CITATION], so that the
trial court could determine whether the revised child support calculated by the OCSS
was an appropriate amount and whether the child support order should be revised. Husband served the March 4, 2020 motion by regular mail on the OCSS. Husband
did not serve the motion on Wife.
On May 18, 2020, Wife’s counsel filed a notice of appearance, and on
May 19, 2020, Wife’s counsel issued a subpoena duces tecum on Husband’s
employer seeking wage and employee benefits information.
On December 23, 2020, Husband filed three postdecree motions: a
motion to determine arrearages (“arrearages motion”), a motion to modify child and
spousal support (“support modification motion”), and a motion to show cause and
demand attorney fees (“show cause motion”) (collectively “December 23, 2020
motions”). The arrearages motion stated the OCSS miscalculated the spousal and
child support arrearages that had accrued since the trial court’s July 18, 2017 order,
including a miscalculation of temporary support. The support modification motion
sought to decrease Husband’s obligations for child and spousal support pursuant to
the July 18, 2017 court order. The show cause motion requested that Husband have
visitation with A.M. and that Wife refinance her residence to remove Husband’s
name from the mortgage.
On January 6, 2021, Wife filed briefs in opposition to Husband’s
December 23, 2020 motions, arguing the merits of the motions. Wife did not argue
that Husband failed to properly serve her with copies of the December 23, 2020
motions. Wife filed numerous motions between January and November 2021.
On November 29, 2021, Wife filed a motion to dismiss alleging that
Husband’s motion for judicial review filed on March 4, 2020, and his December 23, 2020 motions were not properly served upon Wife. Within the motion to dismiss,
Wife stated the issue of lack of service relative to the March 4, 2024 motion was
raised at a hearing on or about November 15, 2020.
On November 29, 2021, Husband filed a brief in opposition to Wife’s
motion to dismiss. In his brief, Husband conceded he did not perfect service of the
motions. Husband argued that from March 4, 2020, through October 28, 2021, the
parties had conducted discovery on the pending motions; defended the motions on
their merits; obtained continuances with the court; participated in more than 15
pretrial hearings and settlement conferences; and set at least two trial dates.
Husband argued that Wife waived her claim of lack of service of process by
voluntarily submitting to the court’s jurisdiction.
On December 1, 2021, Husband requested service of process on three
motions — the motion for judicial review, the arrearages motion, and the support
modification motion — by certified mail at Wife’s home address. The U.S. Postal
Service assigned receipt number 46149786 to Husband’s request for service of
process.
On December 1, 2021, under a separate request for service, Husband’s
show cause motion was sent by certified mail to Wife’s home address and assigned
U.S. Postal Service receipt number 46125837. On December 2, 2021, the U.S. Postal
Service delivered Husband’s show cause motion, referenced as receipt number
46125837, to the wrong address. The motion was delivered to the correct street but
the incorrect street number. The record also indicates that Husband’s three motions — the motion
for judicial review, the arrearages motion, and the support modification motion —
served under receipt number 46149786 were delivered by certified mail on
December 8, 2021, to Wife’s correct address.
Almost one year later on the date of trial — November 22, 2022 —
Wife orally renewed her motion to dismiss for failure of proper service. Wife argued
that Husband’s postdecree motions were required to be served pursuant to Civ.R. 4
through 4.6 to invoke the court’s jurisdiction. Specifically, Wife argued that the
motions did not contain proofs of service and were never served on her personally.
Wife conceded that service may have been attempted in December 2021, but the
motions were delivered to an incorrect address. Husband argued that Wife waived
service, and the docket reflects service of his motions was perfected on Wife, via
certified mail, on December 8, 2021.
The magistrate acknowledged there was an attempt at service, but her
review of the docket indicated that all of Husband’s postdecree motions were
delivered to an incorrect address. The magistrate granted Wife’s motion to dismiss
on the basis that service of the motions was not perfected, and Wife withdrew her
pending motions.
On November 25, 2022, Husband filed four proofs of service with the
trial court. Attached to each proof of service was a copy of Husband’s four motions
that allegedly lacked service. Each proof of service identified the date the attached
motion was originally filed electronically with the clerk of courts and stated that at the time of the original filing, the motion was sent to all counsel of record by
operation of the court’s electronic filing system.
On December 21, 2022, a magistrate’s decision was filed, and it
granted Wife’s oral motion to dismiss Husband’s postdecree motions. The decision
also ordered the adoption of the OCSS recommendation in a separate order and
denied all other procedural motions filed by Wife as moot. On January 3, 2023,
Husband filed objections to the magistrate’s decision as well as supplemental
objections on February 2, 2023. Husband’s objections disputed the magistrate’s
decision to grant Wife’s motion to dismiss due to lack of service.
On May 11, 2023, the trial court issued a judgment entry that
overruled Husband’s objections to the magistrate’s decision and adopted the
magistrate’s decision. On May 25, 2023, the trial court issued a judgment entry that
adopted the magistrate’s December 21, 2022 decision in its entirety; granted Wife’s
motion to dismiss; dismissed Husband’s motions because of the failure of service
upon Wife; ordered the OCSS Recommendation be adopted by separate order; and
ordered Wife’s pending motions either withdrawn or denied as moot.
On June 7, 2023, Husband filed a timely notice of appeal presenting
three assignments of error:
Assignment of Error I: The trial court committed reversible error in
failing to find [Wife] voluntarily submitted herself to the court’s
jurisdiction and waived the Civ.R. 75(J) requirement of issuance and
service of process.
Assignment of Error II: The trial court committed reversible error in
dismissing [Husband’s] motions under Civ.R. 4(E). Assignment of Error III: The trial court committed reversible error in
finding that a motion for court hearing emanating from an
administrative child support review recommendation is subject to
Civ.R. 75(J) service of process requirement.
On November 3, 2023, this court, sua sponte, directed the parties to submit
supplemental briefs addressing whether the trial court’s orders constituted final,
appealable orders. The parties provided supplemental briefing and this issue is now
ripe for review.
Legal Analysis
I. Final, Appealable Order
Before reviewing the merits of this case, we must first consider
whether we have jurisdiction to hear this appeal. An appellate court’s review is
limited to final judgments and orders. [CITATION], ¶ 12. “If an order is not final and appealable, then an
appellate court has no jurisdiction to review the matter and the appeal must be
dismissed.” [CITATION], ¶ 6. “[T]his court has a duty to examine, sua sponte,
potential deficiencies in jurisdiction.” [CITATION] at ¶ 12.
We have two issues to address with regard to our jurisdiction over this
[SEGMENT 5]
case: (1) did the trial court’s failure to adopt the OCSS Recommendation prevent
the May 25, 2023 order from constituting a final, appealable order, and (2) did the
trial court’s dismissal of Husband’s postdecree motions constitute a final,
appealable order under R.C. 2505.02. OCSS Recommendation
The trial court’s May 25, 2023 order (1) adopted the magistrate’s
December 21, 2022 decision in its entirety; (2) granted Wife’s motion to dismiss
thereby dismissing Husband’s postdecree motions; (3) ordered the adoption of the
OCSS Recommendation by separate order; (4) recognized several of Wife’s motions
were withdrawn; and (5) denied as moot several of Wife’s motions.
On June 7, 2023, Husband filed his notice of appeal from the court’s
judgment. At that time, the trial court had not issued a separate order adopting the
OCSS Recommendation even though the May 25, 2023 order stated the court would
do so. Additionally, the OCSS Recommendation was not filed on the trial court’s
docket but was attached to Husband’s motion for judicial review. For these reasons,
this court sua sponte requested supplemental briefing on whether the absence of a
court order adopting the OCSS Recommendation resulted in an unresolved matter
that required further action and, therefore, rendered the May 25, 2023 order not a
final, appealable order.
Husband analogizes the OCSS Recommendation to a qualified
domestic relations order (“QDRO”) and argues neither vehicle requires further
adjudication on the merits of the case but are simply ministerial tools used in
furtherance of an order. A “QDRO implements a trial court’s decision of how a
pension is to be divided incident to divorce or dissolution.” [CITATION] Wife argues that any
judgment that leaves issues unresolved is not a final, appealable order. Wife also argues that consistent with the holding in **[CITATION]**, the current appeal should be dismissed for a lack of a final,
appealable order.
This court has found that
a QDRO is not an independent judgment entry but rather an
enforcement mechanism pertaining to the trial court’s previous
judgment entry of divorce.
**[CITATION]**, citing **[CITATION]**. A
QDRO is “merely a tool used to execute the divorce decree.” **[CITATION]**.
Similarly, we find here that the trial court intended to adopt the OCSS
Recommendation as proposed without any modifications, and the trial court’s
failure to adopt the OCSS Recommendation under a separate order did not prevent
the issuance of a final, appealable order.
R.C. 2505.02
The types of orders that qualify as final, appealable orders are
delineated in R.C. 2505.02(B):
An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which
both of the following apply: (a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of
the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.
(5) An order that determines that an action may or may not be
maintained as a class action;
(6) An order determining the constitutionality of any changes to the
Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly,
* * * or any changes made by Sub. S.B. 80 of the 125th general assembly,
***;
(7) An order in an appropriation proceeding that may be appealed
pursuant to division (B)(3) of section 163.09 of the Revised Code.
R.C. 2505.02(B).
A “substantial right” is “a right that the United States Constitution,
the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a
person to enforce or protect.” R.C. 2505.02(A)(1). A “special proceeding” is “an
action or proceeding that is specially created by statute and that prior to 1853 was
not denoted as an action at law or a suit in equity.” R.C. 2505.02(A)(2).
A divorce action is a special proceeding. [CITATION], ¶ 12, citing [CITATION], ¶ 6. A
motion to modify child support may qualify as a special proceeding pursuant to R.C.
2505.02(B)(2). [CITATION], at ¶ 22;
[CITATION] (June 11, 1999), citing [CITATION] (9th Dist.1996) (“Motions to modify child support are special proceedings.”); see
[CITATION]
(“Matters within the juvenile court setting child support are special proceedings”).
We also find a motion for judicial review filed pursuant to R.C. 3119.60, such as
Husband’s March 4, 2020 motion, is a proceeding created by statute and qualifies
as a special proceeding.
In addition to showing the motions were made in a special
proceeding, Husband must demonstrate that the trial court’s May 11, 2023 and May
25, 2023 orders affected Husband’s substantial rights. This court has found that
[a]n order affects a substantial right if, in the absence of an immediate
appeal, one of the parties would be foreclosed from appropriate relief
in the future. See, e.g., [CITATION]
¶ 16 (“An order affects a substantial right ‘only if an immediate appeal
is necessary to protect the right effectively.’”), quoting [CITATION]
¶ 7,
citing [CITATION]
Cooney at ¶ 23.
We will evaluate Husband’s postdecree motions separately to address
whether the trial court’s dismissal of each created a final, appealable order. In his
appeal, Husband argues that the trial court erred when it dismissed his motion for
judicial review, arrearages motion, and support modification motion. Husband’s
appeal does not address his show cause motion, and thus, we will not analyze the
dismissal of this motion for a final, appealable order.
A. Motion for Judicial Review Husband sought judicial review of an OCSS Recommendation to
modify the parties’ child support order. OCSS Recommendations are governed by
[CITATION]. According to [CITATION], after Husband received a copy of the OCSS
Recommendation, he could request a court hearing or administrative hearing on the
issue, but either request was required to be filed within 14 days after Husband
received the OCSS Recommendation. The OCSS issued its recommendation on
February 19, 2020, and Husband filed his motion for judicial hearing on March 3,
2020, within the 14-day time requirement. No hearing was held on the motion
because the trial court dismissed Husband’s motion for judicial hearing for lack of
service. If Husband is unable to appeal the dismissal of his motion for judicial
review at this time, the trial court will adopt the OCSS Recommendation in its
entirety and the modification will relate back to the date the OCSS Recommendation
was sent. [CITATION]. Husband will be prevented from arguing to the court his
objections to the OCSS Recommendation. [CITATION] offers no method by which
Husband can request a subsequent hearing. Thus, Husband, in the absence of the
current appeal, would be denied a substantial right because he would be foreclosed
from presenting his arguments against the OCSS Recommendation.
We find that the facts here are unique where Husband filed a motion
for a judicial hearing under [CITATION]; the trial court did not conduct a hearing
as requested by Husband; and Husband is now outside the time parameters of the
statute to request another hearing on this issue. The instant matter is a case where
the trial court’s dismissal otherwise than on the merits will prevent Husband from refiling his motion for judicial review. Thus, we find that the trial court’s May 11,
2023 and May 25, 2023 orders resulted in a final, appealable order on Husband’s
motion for judicial review.
B. Arrearages Motion
Husband filed an arrearages motion requesting that the trial court
determine his arrearages in child and spousal support following the July 18, 2017
court order.
Orders affect a substantial right only if they have “immediate
consequences” or “if not immediately appealable, would foreclose appropriate relief
in the future.” [CITATION], quoting [CITATION], and [CITATION].
Here, the trial court’s order on the arrearages motion did not have
immediate consequences for Husband. The trial court made no determination
whether arrearages exist. The dismissal of this motion did not foreclose Husband
[SEGMENT 6]
from refiling this motion so that he can attempt to obtain appropriate relief in the
future. The trial court’s dismissal of Husband’s arrearages motion did not affect a
substantial right and, therefore, does not amount to a final, appealable order.
C. Support Modification Motion
In his support modification motion, Husband seeks a decrease in his
child and spousal support obligations that were issued on July 18, 2017. Husband argues on appeal that a dismissal of this motion will foreclose his substantial right
to have his spousal and child support reduced retroactively to the initial filing date
of December 23, 2020.
“As a general rule, because of the time it takes to modify child support
orders, an order modifying child support order may be made retroactive to the date
the motion to modify child support was filed unless special circumstances dictate
otherwise.” [CITATION], ¶ 12, quoting [CITATION], ¶ 37.
Wife cites to [CITATION] in support of her position that Husband’s modified support modification
motion is not a final, appealable order. In [CITATION], Father filed a postdecree motion
to modify a parenting order and perfected service of the motion. Father then filed a
second postdecree motion to modify child support (“child support motion”) without
serving Wife under Loc.R. 19 of the Court of Common Pleas of Cuyahoga County,
Domestic Relations Division (“Loc.R. 19”) and Civ.R. 75(J) (collectively “service
rules”). At issue in [CITATION] was whether Father was required to follow the service
rules for the child support motion where the court’s continuing jurisdiction had
already been triggered by the initial motion to modify a parenting order. Father in
[CITATION] served the child support motion on Wife’s counsel rather than Wife, which
was not in compliance with the service rules. This court found in [CITATION] that where
Father did not invoke the trial court’s continuing jurisdiction through compliance with the service rules and Father had the opportunity to refile his motion upon
dismissal of the case, there was no final, appealable order.
[CITATION] is distinguishable from the instant case. Father in [CITATION]
failed to serve Mother properly with the motion to modify support and, therefore,
did not invoke the trial court’s continuing jurisdiction. Mother timely raised the
issue of failed service within three months of Father filing his motion to modify
support. There is also the matter of whether Father’s compliance with the service
rules on his first postdecree motion impacted the service necessary on his second
postdecree motion.
Here, as is demonstrated by the record and discussed below in our
analysis of Husband’s second assignment of error, Husband’s support modification
motion was properly served on Wife thereby invoking the trial court’s continuing
jurisdiction. Further, Wife’s motion to dismiss for lack of service was filed in
response to Husband’s postdecree motions originally filed on March 4, 2020, and
December 23, 2020. Wife did not file her motion to dismiss until November 29,
2021. From January 2021 through November 2021, Wife actively participated in
litigation of the postdecree motions. Wife states in her motion to dismiss that the
issue of service relative to the March 4. 2020 motion was previously raised in
November 2020, but there is no record of such a discussion nor any filing by Wife
prior to November 2021. Thus, we find the facts and holding of [CITATION] are
distinguishable from the instant matter. While Husband has the ability to refile his support modification
motion, any award will relate back to the new filing date rather than the original
filing date of December 23, 2020. Husband would be prevented from benefitting
from a potential modification between the period of December 23, 2020, and the
new filing date. For this reason, we find that the dismissal of Husband’s support
modification motion would impact a significant right of Husband, and the dismissal
of this motion was a final, appealable order. See [CITATION] (Although court’s dismissal of Father’s motion to
modify child support did not prevent him from refiling the motion, Father would be
entitled to a support reduction retroactive only to the date of the new filing; the loss
of the reduction retroactively to the date of his initial filing qualified as a substantial
right under R.C. 2505.02.); [CITATION] (Trial court’s judgment entry involuntarily dismissing a
motion to modify child support is a final, appealable order because the “order
modifying child support cannot be retroactive beyond the date that a motion for
modification of child support is made.”).
In summary, we find that the trial court’s May 11 and May 25, 2020
orders resulted in final, appealable orders on Husband’s motion for judicial review
and support modification motion. We find further that the trial court orders were
not final, appealable orders on Husband’s arrearages motion. We will address the
merits of Husband’s appeal as it relates to his motion for judicial review and support
modification motion. II. Assignments of Error
For ease of discussion, we will address Husband’s assignments of
error out of order.
A. Third Assignment of Error
In his third assignment of error, Husband argues that the trial court
committed reversible error when it determined his motion for judicial review filed
pursuant to R.C. 3119.63 was subject to Civ.R. 75(J) service requirements and
dismissed the motion for lack of personal jurisdiction. Wife argues Husband was
required to follow the service requirements of Loc.R. 19 and Civ.R. 75.
A trial court’s dismissal for lack of personal jurisdiction is a question
of law subject to a de novo review. [CITATION]
Generally, after the resolution of divorce proceedings that include
child and spousal support, the trial court’s continuing jurisdiction must be invoked
for postdecree motions through service of process. “When a party fails to invoke the
continuing jurisdiction of the trial court by not meeting the requirements for service
of process, the court lacks personal jurisdiction to enter judgment upon the motion.”
[CITATION]
One manner to invoke a trial court’s continuing jurisdiction on a
postdecree motion for modification of custody, support, or alimony is through
service of process under Civ.R. 75(J). [CITATION] But that is not the only way to invoke the court’s jurisdiction. R.C. 3119.60 also independently imparts jurisdiction on the trial court
to resolve motions such as Husband’s motion for judicial review. See [CITATION] (where the statutory
framework delineated by R.C. 3119.96, rather than Civ.R. 75(J), invoked the trial
court’s continuing jurisdiction). R.C. 3119.60 has no service requirement.
Jurisdiction is predicated on a party filing a motion for a court hearing no later than
14 days after the party received an OCSS Recommendation. Once a request for a
court hearing is filed, the court is required to conduct a hearing in compliance with
R.C. 3119.66. Further, the court must provide notice of the hearing to the parties
and the child support enforcement agency (“CSEA”) at least 30 days prior to the
hearing. R.C. 3119.67. Thus, any reference to a trial court’s continuing jurisdiction
under Civ.R. 75(J) in relation to an OCSS Recommendation generated under R.C.
3119.60 is misplaced.
Accordingly, Husband invoked the trial court’s continuing
jurisdiction when he filed his motion for judicial review in accordance with R.C.
3119.63. The trial court’s determination that the motion for judicial review was
subject to Civ.R. 75(J) and the subsequent dismissal of Husband’s motion for
judicial review was erroneous. For these reasons, we sustain Husband’s third
assignment of error.
B. Second Assignment of Error
In his second assignment of error, Husband argues that the trial court
committed reversible error when it dismissed his support modification motion pursuant to Civ.R. 4(E).1 Specifically, Husband argues that service of his support
modification motion was perfected within the time required under Civ.R. 3(A) and
prior to the court’s ruling on Wife’s motion to dismiss. Husband also argues that a
dismissal pursuant to Civ.R. 4(E) will foreclose his substantial right to have his
spousal and child support reduced retroactively to the initial filing date of December
23, 2020.
We review a trial court’s dismissal due to lack of proper service for an
abuse of discretion. [CITATION]. The term abuse of discretion “implies that the court’s attitude
is unreasonable, arbitrary or unconscionable.” [CITATION]. An abuse of discretion occurs when a court
exercises its judgment in an unwarranted way regarding a matter over which it has
discretionary authority. [CITATION].
To invoke the domestic relations court’s continuing jurisdiction,
Husband needed to file his support modification motion pursuant to Civ.R. 75(J).
Civ.R. 75(J) reads:
In regard to Husband’s first assignment of error, appellant’s and appellee’s briefs
address the filing of Husband’s motion for judicial review, arrearages motion, and support
modification motion. Husband’s second assignment of error discusses Husband’s
arrearages motion and support modification motion. Since we find that there is no final,
appealable order on Husband’s arrearages motion, and our discussion on Husband’s third
assignment of error is dispositive on Husband’s motion for judicial review, we will address
only the support modification motion during our analysis of the first and second
assignments of error. Continuing jurisdiction. The continuing jurisdiction of the court
shall be invoked by motion filed in the original action, notice of which
shall be served in the manner provided for the service of process under
[CITATION]. When the continuing jurisdiction of the court is invoked
pursuant to this division, the discovery procedures set forth in [CITATION]
shall apply.
[SEGMENT 7]
[CITATION]. Pursuant to [CITATION], upon the filing of a complaint — or Husband’s
support modification motion — the clerk shall issue a summons for service upon
each defendant. The document shall be served by either certified or express mail,
unless otherwise permitted in the civil rules, as evidenced by “return receipt signed
by any person.” [CITATION].
On December 23, 2020, Husband filed his support modification
motion with the trial court but failed to serve the motion in accordance with [CITATION]. Instead, Husband simply filed the motion through the
court’s electronic filing system.
On November 29, 2021, almost one year after Husband filed his
support modification motion, Wife filed a motion to dismiss Husband’s motion due
to its failure to comply with the service rules. Wife conceded during oral argument
that she did not recognize a potential service issue until that later date. On the same
day Wife filed her motion to dismiss, Husband filed a brief in opposition to Wife’s
motion to dismiss, arguing that Wife waived service of process by conducting
discovery, receiving continuances, and defending the merits of Husband’s motions.
Husband further argued that from March 4, 2020 — when his first postdecree
motion was filed — through October 28, 2021, the parties had conducted discovery on motions filed by both Husband and Wife, participated in more than 15 pretrials
and settlement conferences, and set two trial dates.
Two days later, on December 1, 2021, Husband filed with the court a
request for service that instructed the clerk of courts to serve the support
modification motion on Wife, by certified mail, at her home address. The U.S. Postal
Service assigned receipt number 46149786 to the service of the motion.
The record indicates that on December 15, 2021, Husband’s motion
served under receipt number 46149786 was delivered by certified mail on December
8, 2021, to Wife’s correct address. The receipt information provided by the U.S.
Postal Service and included in the record shows the signature of the recipient and
the address of the recipient. The signature of the recipient is illegible, and we are
not able to ascertain the name of the signatory. The address of the recipient is
difficult to decipher, but the street numbers are legible — which reflect Wife’s correct
address — and the receipt states the item was delivered in the Wife’s correct city and
state. Husband’s support modification motion was not delivered to an incorrect
address.[CITATION] The trial court erred when it found that Husband served the support modification
motion to the incorrect address. It appears that the trial court confused service of
Husband’s support modification motion with service of his show cause motion; the show
cause motion is not subject to this appeal. A thorough review of the record indicates that
on November 22, 2021, Husband requested service of his show cause motion on Wife. On
December 1, 2021, Husband’s show cause motion was sent by certified mail to Wife’s
correct address, and that mailing was assigned U.S. Postal Service receipt number
46125837. U.S. Postal Service receipt number 46125837 was delivered on December 2,
2021, to the wrong street address rather than Wife’s address. The show cause motion was
delivered to the incorrect address. According to Civ.R. 4.1(A), “service of process may be made by
certified mail ‘evidenced by return receipt signed by any person * * *.’” [CITATION], quoting [CITATION], quoting Civ.R.
4.1(A). Certified mail must be sent to an address “reasonably calculated to cause
service to reach the defendant.” [CITATION]. “‘There is a rebuttable
presumption of proper service when the civil rules governing service are followed.’”
[CITATION], quoting [CITATION], citing [CITATION]. This presumption of proper service is rebuttable by sufficient
evidence. [CITATION].
Here, the return receipt shows that certified mail service of Husband’s
support modification motion was sent to Wife’s home address, signed, and returned.
Under Civ.R. 4.1(A), service was presumptively completed. See [CITATION] (“[C]ertified mail, under
the Rules of Civil Procedure, no longer requires actual service upon the party
receiving the notice but is effective upon certified delivery.”). Wife introduced no
evidence to rebut proper service, but argued erroneously that the motion was served
to the wrong address.
As to his support modification motion, Husband satisfied the service
rules. However, Husband did not serve the motion within six months of its filing and, therefore, the support modification motion could be subject to dismissal
pursuant to Civ.R. 4(E) that reads:
Summons; Time limit for service. If a service of the summons and
complaint [support modification motion] is not made upon a
defendant within six months after the filing of the complaint and the
party on whose behalf such service was required cannot show good
cause why such service was not made within that period, the action
shall be dismissed as to that defendant without prejudice upon the
court’s own initiative with notice to such party or upon motion. This
division shall not apply to out-of-state service pursuant to Rule 4.3 or
to service in a foreign country pursuant to Rule 4.5.
[CITATION] states a trial court will dismiss an action if service of the
summons and complaint is not made upon the defendant within six months of filing
the complaint and the party filing the complaint does not show good cause as to why
service was not perfected in that time frame. In his supplemental objections filed
on February 2, 2023, Husband argued service of the motion was delayed for good
cause. Husband argued that upon Wife’s responding to the motion on January 6,
2021, he believed Wife had subjected herself to the court’s jurisdiction. Husband
also noted that Wife’s January 2021 motions argued the merits of the case but did
not question service of the motion. The parties actively litigated the case from
January 2021 through November 2023, when the trial court dismissed the case for
lack of proper service. Husband also argued that service was perfected on December
8, 2021, and the delay in obtaining service did not interfere with the progression of
the case. Husband argued dismissal of the matter for lack of service would be unjust. The record reflects that the first written claim of lack of jurisdiction
was made on November 29, 2021, when Wife filed her motion to dismiss due to lack
of service. On that same day, Husband filed a brief in opposition and argued that
Wife waived service by her continued participation in litigation of his motions. Just
a few days later, on December 1, 2021, Husband filed a request for service in an
attempt to perfect service of the support modification motion on Wife. And
Husband successfully perfected service of the motion on December 8, 2021. The
trial court granted Wife’s motion to dismiss due to lack of service, and thereby
dismissed Husband’s support modification motion in May 2023, over a year after
Husband perfected service.
As this court stated previously,
[w]e do not believe that Civ.R. 4(E) is meant to be used as a vehicle to
dismiss cases once service has been properly perfected, but rather is
intended to apply to those situations where there is no service and
where the plaintiff has been dilatory in attempting to obtain service on
a defendant.
[CITATION]. “Like all procedural rules, Civ.R. 4(E)
must be ‘construed and applied to effect just results by eliminating delay,
unnecessary expense and all other impediments to the expeditious administration
of justice.’” [CITATION], quoting Civ.R. 1(B); see [CITATION] (The trial court found “there was little
justification for dismissal inasmuch as Gibson had shown cause for not obtaining service within six months of filing the Complaint and had shown diligence in
obtaining service.”).
By the time the trial court ruled on Wife’s motion to dismiss, Husband
had perfected service of the support modification motion. We find Husband’s timely
response to Wife’s motion to dismiss and his reasoning for good cause, coupled with
Husband’s successful service of his support modification motion just days after Wife
filed her motion to dismiss, demonstrate just cause for Husband’s delay in
perfecting service. Additionally, adopting the reasoning behind Civ.R. 4(E) and this
court’s reluctance to dismiss an action where service has been perfected, we
determine that the trial court abused its discretion when it found Husband did not
perfect service of the support modification motion and dismissed that motion.
Therefore, we sustain Husband’s second assignment of error. Further, our finding
on the second assignment of error renders Husband’s first assignment of error moot.
Judgment is dismissed in part, reversed in part, and remanded for
further proceedings consistent with this opinion. As to Husband’s second and third
assignments of error, the dismissals of Husband’s support modification motion and
motion for judicial review, respectively, are reversed and remanded for further
proceedings consistent with this opinion. As to Husband’s arrearages motion, we
conclude that the trial court’s May 11, 2023 and May 25, 2023 orders dismissing the
motion for lack of service were not final, appealable orders and, therefore, dismiss
that portion of Husband’s appeal relative to that motion.
It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal.
[SEGMENT 8]
It is ordered that a special mandate issue out of this court directing the
common pleas court, domestic relations division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
MICHAEL JOHN RYAN, J., CONCUR
[Citation]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.Q.-P. :
A Minor Child : No. 112618
[Appeal by B.P., Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 22, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. FA18107682
Appearances:
Nathaniel E. Wilkinson, for appellant.
S.Q., pro se.
EILEEN A. GALLAGHER, P.J.:
Father-appellant, B.P. (“Father”), appeals from the juvenile court’s
judgment entry following an evidentiary hearing on motions related to Father’s
parenting time with, and support obligations for, his daughter, J.Q.-P. Father
contends that the juvenile court erred in (1) denying his motion to amend his
pleadings to conform to the evidence pursuant to Civ.R. 15(B) and (2) dismissing his
motion to modify custody of J.Q.-P. For the reasons that follow, we affirm the judgment of the juvenile
court.
Procedural and Factual Background
J.Q.-P. was born on December 11, 2016. Father’s paternity was
established on March 10, 2017. An administrative order for child support and
medical support was entered on May 24, 2017. On June 15, 2018, Father filed an
application to establish a shared parenting plan in the Cuyahoga County Court of
Common Pleas, Juvenile Division (the “juvenile court”). On May 28, 2019, the
juvenile court denied Father’s application for a shared parenting plan and entered
an order designating Mother as the residential and custodial parent of J.Q.-P. and
granting Father parenting time.
On September 13, 2019, Mother filed (1) a motion to modify parenting
time and support and (2) an emergency motion to terminate visitation. Mother
alleged that Father had physically and/or sexually abused J.Q.-P., that Father had
failed to provide adequate nutrition for J.Q.-P. and had otherwise failed to meet her
basic needs during his parenting time and that J.Q.-P. had demonstrated
unexplained “psychological changes” and harmful “self-inflicting behavior”
following visits with Father. The juvenile court appointed a guardian litem to
conduct an investigation and make a recommendation.
On September 30, 2019, Father filed a motion to show cause,
requesting that Mother be required to show cause why she should not be held in
contempt for interfering with his court-ordered parenting time with J.Q.-P. Father alleged that Mother had denied him visitation since September 12, 2019. On
October 30, 2019, Father filed an amended motion to show cause, alleging that
Mother had continued to deny him court-ordered visitation throughout October
2019.
On November 19, 2019, Mother filed a motion to show cause,
requesting that Father be held in contempt for failing to pay for certain medical
expenses incurred on behalf of J.Q.-P.
On November 25, 2019, an evidentiary hearing was held on Mother’s
emergency motion to terminate Father’s visitation. A magistrate denied the motion
but ordered that Father’s parenting time be supervised pending further
investigation.
On December 12, 2019, Mother filed an amended motion to show
cause, providing further support for her claim that Father had failed pay certain
medical expenses incurred on behalf of J.Q.-P. and alleging that Father had failed to
timely make child support payments.
An evidentiary hearing on the pending motions was originally
scheduled for June 2020 but was continued due to issues related to the COVID-19
pandemic. Numerous continuances followed due to scheduling issues and/or as the
parties engaged in settlement discussions in an attempt resolve the matter.
Following a conference conducted on April 27, 2021, the magistrate
entered an order indicating that, through their negotiations, the parties had reached
“substantial agreement in the matter” but were “not in agreement as to the issue of which parent will be designated as residential parent for school purposes” and that
“[t]he matter should be set for trial on the remaining issue of which parent shall be
designated residential parent for school purposes.” The matter was then assigned a
July 2021 trial date.
On May 4, 2021, the parties agreed that Father’s parenting time
would no longer be supervised and the juvenile court adopted the parties’
agreement. Following a conference on May 27, 2021, the magistrate entered an
order indicating that the parties were “coming to an agreement” that they
anticipated would “encompass all custody and support matters.”
In June 2021, Mother’s counsel was granted leave to withdraw.
Mother then proceeded pro se. Shortly thereafter, the July 2021 trial was cancelled,
and the case was transferred to a visiting judge. The assigned visiting judge passed
away before the matter could be heard and the case was transferred to a new visiting
judge.
Following a pretrial conference on January 27, 2022, an evidentiary
hearing was scheduled for April 26 and 27, 2022. In its journal entry summarizing
the conference, the juvenile court stated:
For any modification of the May 28, 2019 Journal Entry, the moving
parties must show that there was a “change of circumstances” and that
the proposed modification is in the “best interest of the child.”
The parties indicated the only issue before the Court is: Legal
Custodian[;] Residential Parent for School Purposes; Child Support;
and Medical Payments and Deductibles. Once again, the evidentiary hearing was continued. The evidentiary
hearing finally commenced on September 20, 2022.
The Evidentiary Hearing
The transcript reveals that at the outset of the hearing, there was
confusion as to what motions were to be addressed at the hearing. After some
discussion on the issue, which apparently left the juvenile court with the impression
that Father had filed a motion to modify the May 28, 2019 judgment entry, the
juvenile court indicated, “[W]e’re ready to proceed in regards to evidence and
testimony in regards to the issue of whether there should be a modification of the
Court’s last order in regards to residential parent. * * * So the obligation is on the
father at this point in time on the Motion to Modify.” Although Father had not, in
fact, filed a “motion to modify,” no one corrected the juvenile court.
Mother proceeded with her case-in-chief, presenting testimony from
J.Q.-P.’s pediatrician, a social worker for the Cuyahoga County Division of Children
and Family Services, Father by cross-examination and her own narrative direct
examination. Father was the sole witness to testify on his behalf.
In the middle of Father’s testimony, the juvenile court realized that
Father had not, in fact, filed a motion to modify custody. The following exchange
occurred:
THE COURT: * * * You’ve asked for a change or modification.
When was that motion filed?
[FATHER’S COUNSEL]: The Court has been interpreting the
mother’s motion as a full modification. We never actually filed a Motion to Modify, but that’s been —
every since I was retained about mid-2019, that’s how this Court —
THE COURT: Yeah. I didn’t see it either, so that’s kind of tricky
to modify custody.
First you have to have a change of circumstance, but then you
have to have the best interest, but there’s no motion.
[MOTHER]: I agree with that. There is not.
THE COURT: So on what basis can I grant your request now?
[FATHER’S COUNSEL]: Obviously, this case has been pending
for a very long time and mother has had notice of father’s intention to
change parenting time.
(Inaudible) we’ve been negotiating back and forth and due to the
close proximity of mother’s emergency motion before [the magistrate]
had been treating the entire — basically (inaudible).
So the Guardian ad Litem’s report is —
THE COURT: Obviously he understood that too. But
nevertheless, there’s no motion for modification unless you know of
one. * * * The only Motion for Modification was that of the mother.
Okay. I’ll let you proceed and we’ll sort it out,
Father continued with his testimony. At the conclusion of his
testimony, Father made an oral motion to modify parenting time and custody. The
juvenile court responded: “Sometimes we’ll grant a motion to allow you to make a
[SEGMENT 9]
motion to conform with the evidence or file a pleading to conform with the evidence,
but I don’t think this is an appropriate case for that.” At the conclusion of the first
day of the hearing, the juvenile court, once again, addressed the issue of Father’s
unfiled motion: THE COURT: * * * In regards to your motion for modification of
custody and/or the motion to reflect the evidence or to conform with
the evidence presented, I’m gonna consider it, so if you have something
to write and file, you need to do so tonight. * * * I haven’t ruled on it.
* * * I’ll consider it at that time.
The next morning, Father filed (1) a motion to amend his pleadings
to conform to the evidence pursuant to Civ.R. 15(B) and (2) a motion to modify
custody.
In his motion to amend his pleadings, Father argued that the parties
had “expressly and impliedly consented to try the matter of custody” at the
January 27, 2022 pretrial conference, that all parties had been “operating under the
understanding that custody was at issue * * * and had been doing so for many
months” and that Mother had “more than a fair opportunity to address the issue,”
given that her “witnesses and exhibits bore directly on the issue of custody.” Father
also noted that the guardian ad litem had recommended a change in custodial status.
Father did not, however, identify what “pleading” he sought leave to amend or,
specifically, what amendments he sought leave to make.
In his motion to modify custody, Father requested that he be
designated the legal custodian and residential parent of J.Q.-P. or, in the alternative,
that Father be named the residential parent for school purposes, be given authority
to make medical decisions for J.Q.-P., have approximately equal parenting time with
J.Q.-P. and that child support be adjusted accordingly. In support of his motion,
Father asserted that “there has been a significant change in circumstances since the
last order of this court.” After receiving Father’s motions, the juvenile court indicated that it
would “not rule upon [Father’s motions] directly” but that it would “take [them]
under advisement” and “may or may not grant them.” The evidentiary hearing then
continued.
Recommendation of the Guardian Ad Litem
On September 14, 2022, the guardian ad litem filed a report in which
he recommend that “due to a significant change in circumstances,” the juvenile court
“issue an order for shared parenting with a relatively equal allocation of parenting
time,” that Father be given the right “to make all medical and school-related
decisions” for J.Q.-P. and that Father be designated the residential parent for school
purposes. The guardian ad litem further stated that “should the Court decide that it
is in [J.Q.-P.’s] best interest that she be placed in Father’s exclusive custodial and
residential care,” he would “endorse that.” The guardian ad litem explained that his
recommendation was based on the fact that although there was “little to no basis in
fact for her accusations” of abuse, Mother “continue[d] to push the narrative of
abuse when interacting with involved professionals including the child’s school.” He
indicated that Mother’s continued accusations, “without [Mother’s] willingness to
seek help or acknowledge a problem, foretells a potentially dangerous future that
would not be in [J.Q.-P.’s] best interest” and that although Mother had for years
claimed that J.Q.-P.’s issues were attributable to Father, “it is abundantly clear that
she is[,] in fact, the primary source of the distress.” At the hearing, the guardian ad litem described his investigation and placed his recommendation on the record. He
then answered questions posed him by the parties.
The Juvenile Court’s Ruling
On March 7, 2023, the juvenile court issued a judgment entry in
which it denied Mother’s motion to modify parenting time and overruled and
dismissed Father’s motion for leave to amend his pleadings and his motion to
modify custody.[CITATION]
With respect to Mother’s motion to modify parenting time, the
juvenile court found that Mother had “failed in her burden of proof” and that there
was “no evidence” to support her motion. The juvenile further found that there was
no evidence of abuse or neglect of J.Q.-P. while in Father’s care and “not a thread of
evidence that sexual abuse of [J.Q.-P.] occurred” — while in Father’s care or
otherwise. The juvenile court noted that “[i]ndividuals’ perceptions or
presumptions are not significant threats” and that “[f]alse reports could lead to a
‘change of circumstances’ and affect the best interest of the child.” With respect to
Father’s motions, the juvenile court stated:
When browsing the Court’s file on September 20, 2022, the
Court found no motion was filed by Father for modification of the
Court’s Parenting Time Order or modifying the parent approved for
school purposes or medical decisions.
[CITATION] On March 6, 2022, the juvenile court issued a separate journal entry addressing
the issue of child support. Finding a substantial change in circumstances that was not
contemplated at the time of the original child support order, the juvenile court
significantly reduced Father’s monthly child support obligation. The parties have not
appealed this journal entry. On the second day of trial, September 21, 2022, Father filed
motions to allow him to file a Motion to Modify Parental Rights and
Responsibilities and/or amend his pleadings to conform to the
evidence. The Court overruled those motions as not timely filed. The
Court subsequently took Father’s motions under advisement.
***
The Court overrules and dismisses Father’s motions, filed
September 21, 2022, on the second day of trial to modify custody or
allow Father to amend his pleadings to conform to the evidence.
Mother is pro se. Mother prepared and argued her Motion to
Terminate or Modify Father’s Parenting Time; however, to consider
modification of the parental custody without a motion filed in this case
would be a denial of due process and be fundamentally unfair.
***
Since no motion is pending in Father’s case, the Court cannot
order modification of the parties’ current custody/parenting order of
May 28, 2019.
***
Inasmuch as the Court dismissed Father’s motions, the Court
has not made a ruling on “change of circumstances” for Father.
Father appealed, raising the following two assignments of error for
review:
Assignment of Error 1: On page 13 of the Judge’s Decision, the court
erred when the court overruled Father’s 15(b) motion to conform the
evidence to match the pleadings.
Assignment of Error 2: On page 13 of the Decision, the court erred
when the court dismissed Father’s motion to modify custody. Law and Analysis
Motion for Leave to Amend Pleadings to Conform to the Evidence
In his first assignment of error, Father argues that the juvenile court
abused its discretion in denying his motion to amend his pleadings to conform to
the evidence under Civ.R. 15(B). He asserts that the matter should “be decided as if
his 15([B]) motion was granted” and that “he be named the residential parent and
legal custodian of J.Q.-P.”
Civ.R. 15(B) provides:
When issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings. Such amendment of the pleadings as may
be necessary to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at any time, even
after judgment. Failure to amend as provided herein does not affect
the result of the trial of these issues. If evidence is objected to at the
trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall
do so freely when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the court that
the admission of such evidence would prejudice him in maintaining his
action or defense upon the merits. The court may grant a continuance
to enable the objecting party to meet such evidence.
In determining whether the parties impliedly consented to litigate an
issue, courts consider various factors, including “whether they recognized that an
unpleaded issue entered the case; whether the opposing party had a fair opportunity
to address the tendered issue or would offer additional evidence if the case were to
be retried on a different theory; and whether the witnesses were subjected to
extensive cross examination on the issue.” [CITATION]
====== End of Part ====== Trustees, [CITATION], paragraph one of the syllabus.
“Under Civ.R. 15(B), implied consent is not established merely because evidence
bearing directly on an unpleaded issue is introduced without objection. Rather, it
must appear that the parties understood the evidence was aimed at the unpleaded
issue.” Id. at [CITATION]. Further, an issue may not be tried by implied consent where it
[SEGMENT 10]
would result in substantial prejudice to a party. Id. at [CITATION]. “[D]ue to the
requirements of procedural due process, trial of unpleaded issues by implied
consent is not lightly inferred.” [CITATION], ¶ 24, citing [CITATION].
We review a trial court’s denial of a Civ.R. 15(B) motion to amend
pleadings for abuse of discretion. [CITATION]. A trial
court abuses its discretion if its decision was unreasonable, arbitrary or
unconscionable. [CITATION]. As the Ohio Supreme Court explained in [CITATION]:
“[A]n abuse of discretion involves far more than a difference in * * *
opinion * * *. The term discretion itself involves the idea of choice, of
an exercise of the will, of a determination made between competing
considerations. In order to have an ‘abuse’ in reaching such
determination, the result must be so palpably and grossly violative of
fact and logic that it evidences not the exercise of will but perversity of
will, not the exercise of judgment but defiance thereof, not the exercise
of reason but rather of passion or bias.” Id. at 87, quoting [CITATION].
A decision is unreasonable when “no sound reasoning process” supports the
decision. [CITATION]. An abuse of discretion also occurs when
a court “applies the wrong legal standard, misapplies the correct legal standard, or
relies on clearly erroneous findings of fact.” [CITATION].
Father argues that the juvenile court abused its discretion in denying
his motion for leave to amend his pleadings because the parties “expressly and
impliedly consented to try the matter of custody,” Mother had notice of and a “fair
opportunity” to present evidence on “the issue of custody” and, in fact, presented
evidence on the issue at the hearing, each witness who could speak to the issue was
cross-examined on “the issue of custody” and Father had relied on the juvenile
court’s prior statements that custody was at issue in failing to file a motion to modify
custody earlier in the proceedings, thinking it was “unnecessary.” Father further
contends that “[w]hile it could be viewed as reasonable to deny the motion based on
the discussion and [M]other’s presentation of [the] case involving the issue of
custody, to deny Father’s motion in contravention of the Court’s own statements is
unreasonable” and that Mother’s pro se status should not have been considered
when ruling on the motion because Mother “chose to represent herself.”
We are mindful that our role is to determine whether the juvenile
court abused its discretion, not whether the juvenile court’s decision was the same decision this court would have made. When reviewing a decision for abuse of
discretion, we cannot substitute our judgment for that of the juvenile court.
Based on a thorough review of the record, we cannot say that the
juvenile court abused its discretion in denying Father’s motion. The record reflects
that the juvenile court carefully considered Father’s motions. After reviewing
Father’s motions and considering the arguments of the parties and the evidence
presented at the hearing, the juvenile court denied Father’s motion because (1) no
motion was pending in Father’s case, (2) Mother, who was proceeding pro se,
“prepared and argued” her motion to terminate or modify Father’s parenting time,
not a motion to change her designation as the residential parent and legal custodian
of J.Q.-P. and (3) “to consider modification of the parental custody without a motion
filed in this case would be a denial of due process and would be fundamentally
unfair.” Even assuming Civ.R. 15(B) applied here,2 Father has not shown that the
In the context of continuing jurisdiction in divorce actions, the Tenth District
observed in [CITATION]:
Although Civ.R. 15(B) refers to pleadings, not motions, we find it
applicable to this case. Generally, the Ohio Rules of Civil Procedure govern
divorce actions, Civ.R. 75(A), and nothing in Civ.R. 75 specifically exempts
divorce actions from the application of Civ.R. 15(B). Moreover, a motion
invoking a domestic relations court's continuing jurisdiction operates much
like a complaint. When a party files such a motion, it must serve the motion
as if it was a complaint. Civ.R. 75(J). Like a complaint, the motion notifies the
non-moving party and the domestic relations court of the issues the moving
party seeks to resolve. Civ.R. 15(B), therefore, determines when the scope of
the motion must expand to include issues not raised in the motion.
[CITATION] at ¶ 22.
Likewise, in this case, the juvenile court’s continuing jurisdiction was invoked by
the filing of a motion. See Juv.R. 35(A); see also [CITATION] juvenile court acted arbitrarily, unreasonably or unconscionably in denying him
relief under Civ.R. 15(B).
In his motion for leave to amend his pleadings, Father did not identify
the “pleading” he sought leave to amend or the specific amendment he sought to
make to such pleading. He merely asserted that the juvenile court should grant his
motion to amend because the parties “recognized that Custody was at issue,” had “a
more than fair opportunity to address the issue” at the evidentiary hearing and
“Mother’s witnesses and exhibits bore directly on the issue of custody.”
However, the only motions Father had filed were a motion to show
cause and an amended motion to show cause, both of which related to Mother’s
alleged interference with his parenting time. Father had not filed any motion to
modify the juvenile court’s May 28, 2019 judgment entry allocating parental rights
and responsibilities. Further, the record reflects that Father withdrew his motions
to show cause during the hearing, after the parties reached an agreement with
respect to Father’s missed parenting time. Accordingly, there was no “pleading” of
Father’s to amend. The only motion before the court was Mother’s motion to modify
parenting time and support.
Despite Father’s claims to the contrary, we see nothing in the record
to indicate that Mother expressly consented to litigate the issue of whether the
Ohio-2879, ¶ 11 (“The Rules of Civil Procedure apply to custody proceedings in juvenile court except when they are clearly inapplicable.”), citing former Civ.R. 1(C)(7) and [CITATION]. Accordingly, we believe a similar rationale would apply here. juvenile court should change her designation as J.Q.-P.’s residential parent and legal
custodian. There is no transcript of the January 27, 2022 pretrial conference in the
record. Accordingly, we do not know what was said at that conference. The juvenile
court was in the best position to know what occurred at that conference, including
whether Mother understood that an “unpleaded issue” was part of the case, and to
what extent Mother would be prejudiced if Father’s motion for leave to amend were
to be granted and the issue of a possible change in residential parent/legal custodian
status were to be litigated at the September 20, 2022 evidentiary hearing. That the
parties may have previously been engaged in settlement discussions that included a
possible change in the residential parent does not mean Mother agreed to litigate
that “unpleaded issue” when those settlement discussions failed. When the
possibility of proceeding on Father’s unfiled motion was raised in the middle of the
evidentiary hearing, Mother did not agree to it.
That Mother presented evidence on issues relevant to custody at the
evidentiary hearing does not mean she impliedly consented to litigate the issue of
whether she should continue to be the residential parent and legal custodian of
J.Q.-P. At issue was her own motion to modify Father’s parenting time. The
evidence Mother presented was relevant to that motion.
Father has cited no relevant legal authority supporting his position
that the juvenile abused its discretion in denying his motion for leave to amend his
pleadings. Apart from Civ.R. 15(B) and two cases setting forth the standard of
review on a Civ.R. 15(B) motion, Father cites only three cases in his appellate brief — [CITATION] None of those cases
involves facts or circumstances even remotely similar to those at issue here. None
of those cases involves a situation in which a party sought leave to amend a pleading
or motion under Civ.R. 15(B) that was never filed and none of those cases involves a
situation where the parties were found to have impliedly consented to litigate
whether a parent’s status as a child’s residential parent and legal custodian should
be changed (or any other child custody issue).
[CITATION] involved the denial of a motion for leave to amend a
complaint under Civ.R. 15(A) to assert a prayer for punitive damages in a negligence
action. In that case, the Twelfth District held that the trial court did not abuse its
discretion in denying the motion because the appellant failed to make a prima facie
showing that he could present sufficient evidence to support a claim for punitive
damages. [CITATION] In [CITATION], the plaintiff sought to
recover damages after a physician perforated his intestine during a surgical
procedure. This court held that the trial court did not abuse its discretion in denying
the plaintiff’s Civ.R. 15(B) motion for leave to amend his complaint (which alleged
[SEGMENT 11]
lack of informed consent) to include a claim for battery because the plaintiff “failed
to make a prima facia showing that he could support, with facts, an allegation of
battery.” [CITATION] In [CITATION], the Fourth District held that the parties did not impliedly consent to try the unpleaded issue of whether appellee had a right
of action against appellant for contribution. [CITATION]
Because Father has not shown that the juvenile court acted
unreasonably, arbitrarily or unconscionably in denying his motion for leave to
amend his pleadings, Father’s first assignment of error is overruled.
Dismissal of Father’s Motion to Modify Parenting Rights
In his second assignment of error, Father asserts that the juvenile
court erred in dismissing his motion to modify custody. However, Father’s brief
contains no argument in support of his second assignment of error. An appellant's
brief must include “[a]n argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the reasons in support
of the contentions, with citations to the authorities, statutes, and parts of the record
on which appellant relies.” App.R. 16(A)(7). An appellate court may disregard an
assignment of error presented for review if the appellant fails to identify in the
record the error on which the assignment of error is based, fails to cite to any legal
authority in support of an argument or fails to argue the assignment separately in
the brief, as required under App.R. 16(A)(7). See App.R. 12(A)(2) (“The court may
disregard an assignment of error presented for review if the party raising it fails to
identify in the record the error on which the assignment of error is based or fails to
argue the assignment separately in the brief, as required under App.R. 16(A).”); [CITATION]. “An appellate court is not obliged to construct or develop arguments
to support an appellant’s assignment of error and ‘will not “guess at undeveloped
claims on appeal.”’” [CITATION], ¶ 56 (8th
Dist.), quoting [CITATION], ¶ 39 (9th Dist.),
quoting [CITATION]
, ¶ 31. “‘If an argument exists that can support this assigned error,
it is not this court’s duty to root it out.’” [CITATION], ¶ 72, quoting [CITATION], 22 (May 6, 1998).
Father’s generalized assertion that the juvenile court erred in
dismissing his motion to modify custody — without any explanation or citation to
supporting legal authority — does not satisfy Father’s obligation under
App.R. 16(A)(7). Accordingly, we disregard Father’s second assignment of error.
Furthermore, even if Father had argued his second assignment of
error, it is doubtful that we would have jurisdiction to consider it given that (1) no
ruling was made on the merits of Father’s motion, i.e., the motion was dismissed
without prejudice, (2) Father could refile it and (3) Father did not show that he
would relinquish any rights or would otherwise be prejudiced if required to refile his
motion. Here, the juvenile court in its judgment entry clearly left the door open for
Father to refile his motion to modify custody, noting that the court had “not made a
ruling on ‘change of circumstances’ for Father” and providing instruction regarding
the use of evidence “to establish their case-in-chief” “[i]f either party files a motion to modify the Judgment entry of May 28, 2019.” A dismissal that is not based on
the merits and is without prejudice is generally not a final, appealable order because
it does not prevent a party from refiling. See, e.g., [CITATION] (trial court’s dismissal of father’s motion to
modify child support and obligation for medical insurance after he failed to perfect
service of the motion on mother was not a final, appealable order); [CITATION] (trial court order
dismissing, for want of prosecution and failure to comply with court order, father’s
motions to modify parental rights and to show cause based on alleged interference
with parenting time was not a final, appealable order where dismissal was without
prejudice, father could refile his motions and father did not claim that there were
certain rights he would be relinquishing if he had to refile his motions or that a
refiling of his motions would prejudice his ability to seek the relief sought in his
motions).
Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common
Pleas Court, Juvenile Division, to carry this judgment into execution.
It is ordered that appellee recover from appellant the costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
V.C., :
No. 113181
Plaintiff-Appellee, :
v. :
O.C.,
:
Defendant-Appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: February 1, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-11-338367
Appearances:
Ronald A. Skingle, for appellee.
O.C., pro se.
EILEEN A. GALLAGHER, P.J.:
Father-appellant, O.C. (“Father”), pro se, appeals from the trial
court’s judgment entry (1) dismissing his motions to modify parental rights and
responsibilities and to show cause for contempt of court and (2) overruling his
motion to stay an order requiring him to serve appellee V.C. (“Mother”) and the guardian ad litem with copies of his motions and to pay a deposit for the guardian
ad litem’s fee. Father contends that the trial court erred and abused its discretion
by dismissing or overruling his motions without a hearing or referring the matter to
mediation.
For the reasons that follow, we dismiss this appeal.
Procedural and Factual Background
Mother and Father were married on August 21, 1999. They have four
children, two of whom are still minors — daughter C.T.C. (d.o.b. 8/24/06) and son
U.C.C. (d.o.b. 5/28/10). A final divorce decree was entered on April 25, 2018 that
included a shared parenting plan. Following the divorce, the parties filed a number
of post-decree motions seeking to terminate the shared parenting plan and modify
the parties’ child support obligations.
On September 25, 2020, the trial court issued a judgment entry that
terminated the parties’ shared parenting plan, designated Mother as the residential
parent and legal custodian of the parties’ minor children and ordered Father to pay
monthly child support. Father appealed to this court, challenging, among other
things, the trial court’s designation of Mother as the residential parent and legal
custodian of the minor children and its order requiring Father to pay child support
to Mother. [CITATION]
On appeal, this court affirmed the trial court’s decision to the extent
it terminated the parties’ shared parenting plan and designated Mother the residential parent and legal custodian of the parties’ minor children. Id. at ¶ 2, 72-
73. However, concluding that the trial court had applied the wrong standard in
determining Father’s child support obligation, this court reversed the child support
order and remanded the case for a redetermination of Father’s child support
obligation. Id. at ¶ 82, 96. On appeal after remand, this court affirmed the trial
court’s redetermination of Father’s child support obligation. [CITATION].
On July 18, 2023, Father filed (1) a motion to modify parental rights
and responsibilities, requesting that the court modify its September 25, 2020
judgment entry to designate him the residential parent and legal custodian of C.T.C.
and U.C.C. (“motion to modify parental rights”) and (2) a “motion to show cause for
contempt of court,” requesting that Mother be ordered to show cause why she
should not be held in contempt of court “for claiming C.T.C. in her 2022 tax return
and for multiple violations and interference with * * * parenting time” (“motion to
show cause”). Attached to the motions were certificates of service indicating that
copies of the motions had been “mailed and electronically transmitted to [Mother]
through her attorney.” On August 4, 2023, the trial court issued an order, stating
that Father’s motions would be “taken under advisement pending [Father’s]
compliance with the following orders on or before August 31, 2023”:
1. [Father] shall make an initial partial deposit of $1,500 to Attorney
John Lawson, who will be reappointed as the GAL; [and]
2. [Father] shall properly serve [Mother] and the GAL with all
pleadings he filed in this reopening. ([Father] served prior counsel of [Mother] who was relieved of further obligations to represent [Mother]
upon termination of the prior case.)
[SEGMENT 12]
The court indicated that “failure to comply will result in dismissal of this case.”
Father did not serve (or even attempt to serve) Mother or the
guardian ad litem (“GAL”) with copies of his motions as ordered by the trial court.
Instead, on August 29, 2023, Father filed a “motion to stay the judgment entry of
August 4, 2023” (“motion to stay”) (which he, again, served only on Mother’s
counsel) and further requested that the trial court order the parties to “mediate their
differences,” claiming that there was an “ongoing settlement agreement” between
the parties.
Mother’s attorney filed an opposition to Father’s motion to modify
parental rights, asserting that Father had not alleged a change in circumstances with
regard to U.C.C., that the issues Father raised in his motion with respect to U.C.C.
had been previously addressed in the trial court’s [CITATION] judgment
entry, this court’s [CITATION] opinion and a motion to modify custody that was
dismissed on [CITATION] and that the “relitigation of custody for C.T.C.” “did not
make sense” given that C.T.C. was 17, had “the ability to travel and stay with either
parent as she desires” and would soon be emancipated. Mother’s attorney filed an
opposition to Father’s motion to show cause in which Mother denied claiming C.T.C.
on her 2022 federal income tax return or limiting or interfering with Father’s
parenting time. Mother’s attorney filed an opposition to Father’s motion to stay in
which Mother denied that there was any “ongoing settlement agreement” between the parties and stated that she was not “agreeable to engage in mediation with
[Father].” Mother requested that the trial court’s August 4, 2023 order not be stayed
and that Father be required to comply with the terms of the order if he intended to
pursue his motions. Father filed replies in support of each of his motions (which he,
again, served only on Mother’s counsel) disputing Mother’s claims.
On September 7, 2023, the trial court issued a judgment entry
dismissing Father’s motion to modify parental rights and his motion to show cause
“for want of prosecution and failure to comply with [the] Court’s orders.” The trial
court also “overruled” Father’s motion to stay1 on the ground that it was “patently
without merit” and dismissed the case at Father’s costs. The trial court did not
specify in its judgment entry whether the dismissal was with, or without, prejudice.
Father appealed, raising the following six assignments of error for
review:
Assignment of Error 1: The trial court erred and abused its discretion
when, on 09/07/2023, it dismissed the motion to show cause for
contempt of court, filed by O.C. (Appellant) on 07/18/2023, without a
hearing, contrary to O.R.C. 2705.05(A) and O.R.C. 3119.82.
Assignment of Error 2: The trial court erred and abused its discretion
when, on 09/07/2023, it dismissed the motion to modify parental
rights and privileges filed by O.C. (Appellant) on 07/18/2023 without
In its September 7, 2023 order, the trial court states that Father also filed a “joint
motion to modify parental rights and responsibilities of CTC only” (“joint motion”) and
denied that motion as being “patently without merit.” Father, however, did not separately
file that motion with the trial court. A copy of the joint motion, signed only by Father,
was attached as an exhibit to his motion to stay as purported evidence of the “ongoing
settlement agreement” that Father contended “could be completed expeditiously * * *
through mediation or at pre-trial.” Accordingly, we do not further address that motion
here. a hearing or referral for mediation, as required by O.R.C. 3109.052(A)
and O.R.C. 3109.04.
Assignment of Error 3: The trial court erred and abused its discretion
when, on 09/07/2023, it dismissed the appellant’s motion to order the
parties for mediation and to stay the trial court’s order made on
08/04/2023 without any hearing, contrary to the requirements of
O.R.C. 3109.052(A) and Ohio Civ. R. 62(A).
Assignment of Error 4: The trial court erred and abused its discretion
when, on 08/04/2023, it ordered the appellant to “make an initial
partial deposit of $1,500 to Attorney John Lawson, who will be
reappointed as the GAL,” contrary to the provisions in Ohio R. Superi.
Ct. 48.02(H)(1)(a).
Assignment of Error 5: The trial court erred and abused its discretion
when, on 08/04/2023, it stated that the appellant “served prior
counsel of the Plaintiff who was relieved of further obligations to
represent Plaintiff upon termination of the prior case,” whereas the
appellant served the plaintiff’s present counsel (Mr. Ronald Skingle),
and did not serve the prior counsel of the plaintiff (Mr. Kevin Starrett).
The false statement made by the court, which formed the basis of the
court’s final decision on 09/07/2023, was contrary to the provisions of
O.R.C. 2921.11.
Assignment of Error 6: The trial court erred and abused its discretion
when, on 09/07/2023 it claimed that the “Defendant’s motions filed on
August 29, 2023, are patently without merit and are OVERRULED.”
(Emphasis deleted.)
Law and Analysis
Before considering the merits of Father’s assignments of error, we
must first determine whether we have jurisdiction to hear this appeal.
Our appellate jurisdiction is limited to reviewing judgments and
orders that are final. [CITATION], Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2505.02; R.C. 2505.03. “If an order is not final and appealable, then an appellate court has no
jurisdiction to review the matter and the appeal must be dismissed.” [CITATION]. Even if neither party raises a jurisdictional question, we must sua
sponte dismiss an appeal if it is not taken from a final appealable order or judgment.
See, e.g., [CITATION]
(prior to a review of the merits, an appellate court “has a duty to examine, sua
sponte, potential deficiencies in jurisdiction”), citing [CITATION]; see
also [CITATION] (“In
the absence of a final, appealable order, the appellate court does not possess
jurisdiction to review the matter and must dismiss the case sua sponte.”).
R.C. 2505.02(B) identifies the types of orders that qualify as final,
appealable orders. It states that
[a]n order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which
both of the following apply: (a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of
the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.
(5) An order that determines that an action may or may not be
maintained as a class action;
(6) An order determining the constitutionality of any changes to the
Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly,
including the amendment of sections 1751.67, 2117.06, 2305.11,
2305.15, 2305.234, 2317.02, 2317.54, 2323.56, 2711.21, 2711.22,
2711.23, 2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64,
4705.15, and 5111.018 (renumbered as 5164.07 by H.B. 59 of the 130th
general assembly), and the enactment of sections 2305.113, 2323.41,
2323.43, and 2323.55 of the Revised Code or any changes made by Sub.
S.B. 80 of the 125th general assembly, including the amendment of
sections 2125.02, 2305.10, 2305.131, 2315.18, 2315.19, and 2315.21 of
the Revised Code;
[SEGMENT 13]
(7) An order in an appropriation proceeding that may be appealed
pursuant to division (B)(3) of section 163.09 of the Revised Code.
A divorce action qualifies as a special proceeding. [CITATION] A “substantial right” is “a right that the United States Constitution, the
Ohio Constitution, a statute, the common law, or a rule of procedure entitles a
person to enforce or protect.” R.C. 2505.02(A)(1). “[A] party has a substantial right
to have a dispute adjudicated by a court of competent jurisdiction.” [CITATION] (10th Dist.), citing [CITATION] Likewise,
“[d]ecisions involving the care and custody of a child implicate substantial rights of
the natural parents.” [CITATION], citing [CITATION]; see also [CITATION] (recognizing that parents have a “fundamental
liberty interest” in “the care, custody, and management of their child”).
“[A]n order affects a substantial right for purposes of R.C.
2505.02(B)(2) only if ‘in the absence of immediate review of the order [the
appellant] will be denied effective relief in the future.’” [CITATION] at ¶ 10, quoting
[CITATION].
In this case, with the filing of his motions to show cause and to modify
parental rights, Father sought to invoke the continuing jurisdiction of the trial court
pursuant to Civ.R. 75(J). Civ.R. 75(J) provides, in relevant part: “The continuing
jurisdiction of the court shall be invoked by motion filed in the original action, notice
of which shall be served in the manner provided for the service of process under
Civ.R. 4 to 4.6.” (Emphasis added.) Rule 15(D) of the Local Rules of Practice of the
Domestic Relations Division of the Cuyahoga County Court of Common Pleas
(“Loc.R.”) states:
Service. It is the responsibility of the party filing the motion to perfect
service on the opposing party.
(1) Pending Cases. In pending cases, all motions shall be filed
with the Clerk of Courts and served on opposing counsel, on the self-represented party, and on the guardian ad litem,
where one has been appointed.
(2) Post-Decree. All post-decree motions invoking the
continuing jurisdiction of the court shall be accompanied by
Instructions for Service. Service through the Clerk of Courts
shall be made pursuant to Civ.R. 4 through 4.6.
Loc.R. 19(A) similarly provides, in relevant part: “A motion that
requests a change or modification of an existing child support * * * order must be
filed and served upon the opposing party according to methods of service in Civil
Rule 4 through 4.6.”2 See also [CITATION], at ¶ 15 (“The requirements
of Loc.R. 19 and Civ.R. 75(J) must be met to invoke continuing jurisdiction.”).
Service on a party’s attorney is not sufficient to invoke the continuing jurisdiction of
the trial court under Civ.R. 75(J). See, e.g., [CITATION],
¶ 11.
In [CITATION],
the lead opinion explained the rationale for the heightened service requirement
under Civ.R. 75(J) as follows:
The reason for this requirement is practical. In a domestic
relations case the trial court retains jurisdiction over certain issues,
including child support and visitation, even though disputes in these
areas may not arise for months or years after the initial divorce decree
2 Although Father’s motion was captioned solely as a motion to modify parental
rights, in his affidavit in support of the motion, he also requested that neither parent be
required to pay child support to the other and that Mother be required to refund Father
the child support payments he made since March 18, 2022, when C.T.C. began living with
Father “24/7.” is entered. Once the decree is final, it is unlikely that the parties would
stay in contact with their attorneys.
In other words, regular civil cases are “transactional” in nature:
that is, once the matter has been decided, apart from any appeal, the
case is “dead.” Domestic relations cases, on the other hand, are
“relational” in nature: even after the original case is ended by the
divorce decree, the relationships between parents are not ended just
because the marriage is ended. They still must interact in matters
concerning their mutual children, and the case law demonstrates that
these disputes are common. Resolving these disputes between the
parties requires the trial court to retain jurisdiction over the parties and
those restricted issues.
Because years can pass between the final decree and changed
circumstances motivating a motion for a change in custody or support,
therefore, practicality and due process require that the motion be
served upon the original party, in the same manner as a newly filed
case. Service other than according to Civ.R. 4 through 4.6, therefore, is
not sufficient guarantee of notice to fulfill due process requirements.
[CITATION]
The trial court, after noticing that Father had served only Mother’s
prior counsel (and not Mother) with copies of his motions, ordered that Father serve
Mother with copies of the motions. He also reappointed Attorney John Lawson as
GAL for the children and ordered that Father serve the GAL with all the motions he
had filed in the reopened case. The trial court, thereafter, dismissed Father’s
motions, sua sponte, “for want of prosecution and failure to comply with [the]
Court’s orders” when Father failed to comply with its order.
Civ.R 41(B)(1) states: “Where the plaintiff fails to prosecute, or
comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff’s counsel, dismiss an action or
claim.” Civ.R. 41(B)(3) further states: “A dismissal under division (B) of this rule
and any dismissal not provided for in this rule, except as provided in division (B)(4)
of this rule [dismissals for lack of personal or subject matter jurisdiction or failure
to join a party under Civ.R. 19 or 19.1], operates as an adjudication upon the merits
unless the court, in its order for dismissal, otherwise specifies.” This court has
previously questioned whether Civ.R. 41 applies to the dismissal of motions rather
than actions. See, e.g., [CITATION], at fn. 1, citing [CITATION]
(“We are not
convinced that Civ.R. 41 applies to motion practice because it is entitled ‘Dismissal
of actions’ and speaks specifically to dismissals of causes of actions and
counterclaims”); [CITATION] (“Civ.R. 41(B) permits a trial court to dismiss an action or claim for a party’s failure
to comply with any court order after proper notice to the party. Civ.R. 41(B), by its
very terms, applies only to the dismissal of an action or claim, not to the denial of a
motion for want of prosecution.”); see also [CITATION] (Civ.R. 41(B) “does not apply to post-
judgment motions to modify parental rights and responsibilities or to modify child
support.”), citing [CITATION] Even if Civ.R. 41(B) applied to motions, Civ.R. 75(P), effective
July 1, 2023 — which likewise refers to the dismissal of “action[s]” rather than
motions — would preclude the trial court’s dismissal of Father’s motions from[ operating as an adjudication on the merits under Civ.R. 41(B)(3). Civ.R. 75(P)
states: “Notwithstanding Civ.R. 41, any dismissal of a divorce, dissolution,
annulment, or legal separation action by a court or party, other than a denial on the
merits, shall not operate as an adjudication of the merits or a bar to a subsequent
filing of the action.”
The trial court’s September 7, 2023 judgment entry dismissing
Father’s motions to show cause and to modify parental rights and overruling
Father’s motion to stay compliance with the court’s August 4, 2023 order was not
based on the merits, i.e., no final ruling was made on the substance of the motions
to show cause or to modify parental rights. A dismissal that is not based on the
merits and is without prejudice is generally not a final, appealable order because it
does not prevent a party from refiling. M.E.D. at ¶ 14, citing [CITATION]. Father could refile his motions, ensure that Mother is properly
served and reinvoke the continuing jurisdiction of the trial court. See, e.g., [CITATION]. Accordingly,
the trial court’s dismissal here was without prejudice.
In [CITATION], this court recently dismissed an appeal
in which a parent sought to invoke the continuing jurisdiction of the trial court under
Civ.R. 75(J) for lack of appellate jurisdiction. In that case, the trial court dismissed
a father’s motion to modify child support and obligation for medical insurance after
he failed to perfect service of the motion on the mother, i.e., serving the mother’s attorney rather than the mother “in contravention of the express requirements of
[SEGMENT 14]
Loc.R. 19 and Civ.R. 75(J).” Id. at ¶ 3, 8. This court held that the trial court’s
dismissal was a dismissal “otherwise than on the merits,” that it did not prevent the
father from refiling, that the father had, in fact, filed a new motion to modify child
support, that a judgment without personal jurisdiction over the defendant is void
and that the dismissal was, therefore, not a final, appealable order. Id. at ¶ 13-16.
The dissent argued that a motion to modify child support affected a
substantial right even if it could be refiled because the modification of support could
not be retroactive beyond the date of the request. Thus, the dissent maintained, “any
refiling of the motion would limit the date upon which the subsequent modification,
if any, could be retroactively awarded, which affects ‘a substantial right in an action
that in effect determines the action and prevents judgment’” under R.C.
2505.02(B)(1). Id. at ¶ 18, citing [CITATION] and [CITATION]. The dissent further noted: “Refiling a motion to
modify child support will not afford the party any relief. If no immediate appeal is
permitted, none can be had and the domestic relations court’s decision would never
be subject to appellate scrutiny.” [CITATION] at ¶ 18-19.
There are some potential differences between [CITATION] and this case.
First, in [CITATION], this court held that the trial court lacked jurisdiction over the
father’s motion under Civ.R. 75(J) (and that any judgment would be void) because
the mother was not properly served and promptly raised the issue. Id. at ¶ 1, 4-6, 8, 13-15; see also [CITATION] (where
defendant served plaintiff’s attorney but not plaintiff with motion to modify support
and plaintiff timely objected to lack of service, trial court’s continuing jurisdiction
was not properly invoked and trial court did not err in dismissing motion). In this
case, Mother’s attorney filed oppositions to Father’s motions on Mother’s behalf
without objecting to the insufficiency of service of process or Father’s failure to
properly invoke the trial court’s continuing jurisdiction. However, in the opposition
to the motion to stay Mother’s counsel filed on her behalf, she requested that the
trial court’s August 4, 2023 order not be stayed and that Father be required to
comply with the terms of the order if he intended to pursue his motions.
Accordingly, there is an issue — which the parties have not addressed — as to
whether Mother waived insufficiency of service and any objection to the trial court’s
continuing jurisdiction. See, e.g., [CITATION], ¶ 25 (“Lack of proper service under Civ.R. 75(J) can * * * be waived.
Where a party appears in court, fails to object to improper service pursuant to Civ.R.
75(J) and defends on the merits of the case, that party will be deemed to have waived
the issue of improper service.”), citing [CITATION], ¶ 26, and [CITATION], ¶ 37. But see [CITATION]
(where appellee failed to serve her motion for contempt on appellant, appearance
by appellant’s counsel filing motions to continue hearing on contempt motion was
insufficient to invoke the court’s continuing jurisdiction). Second, Father’s motions here did not just involve a request for modification of child support. They included
a motion to modify parental rights and a motion to show cause related to alleged
interference with parenting time.
As one court has observed, “[i]n the context of domestic relations
cases, there appears to be * * * a difference in holdings based on the application of
R.C. 2505.02(B) to specific facts.” [CITATION] (holding that “the impact on a substantial right based on a
dismissal without prejudice in a domestic relations case might give rise to a final,
appealable order, but only where the effect on the substantial right is both alleged
and prejudicial, i.e., where the impact cannot be rectified through equitable
considerations in the refiled cause or motion” and that where appellant-wife had the
ability to seek redress for her inability to enforce the prior temporary support orders
in dismissed divorce action through equitable resolution in a second divorce action,
the trial court’s dismissal without prejudice of first divorce action did not affect a
substantial right and, therefore, was not a final, appealable order).
In [CITATION], for example, the Fifth District held that a judgment entry involuntarily
dismissing a father’s motion for modification of parental rights for lack of
prosecution was a nonfinal order because it did not affect any substantial right of
the father. Id. at ¶ 39-40. In that case, the father requested a modification of his
parenting time to accommodate his work schedule. Id. at ¶ 40. In an affidavit, the
father stated that the parties had been successfully cooperating to accommodate appellant’s work schedule up to the time that the motion for relief was filed. The
father did not claim that there were certain rights that he would be giving up in the
event that he would have to refile his request for modification or that a refiling of the
motion for modification would prejudice his intent to seek modification of his
parenting time and did not deny that the matter could be refiled for further
consideration by the trial court. [CITATION] The court held that because the trial court’s
order of dismissal for want of prosecution was a nonfinal order, the trial court’s
subsequent order declining to grant Civ.R. 60(B) relief could not be a final order and
dismissed the father’s appeal for lack of jurisdiction. [CITATION] at ¶ 40-41; see also [CITATION] (where there
were no children to consider and no orders in effect for spousal or child support,
trial court’s dismissal of divorce action, without prejudice, did not “foreclose
appropriate relief in the future upon the potential refiling of the case” and, therefore,
was not a final appealable order).
[CITATION] by contrast, the Ninth District held that the dismissal without prejudice
of a mother’s motion to reallocate parental rights was a final, appealable order. In
that case, the mother filed a motion to reallocate parental rights and responsibilities
in June 2012, arguing that the parties’ shared parenting plan should be terminated
because the children’s father had been arrested on charges of possessing marijuana.
[CITATION] at ¶ 3. A magistrate heard the matter in September 2012, at which time evidence
was taken and the children were interviewed in camera. [CITATION] The magistrate referred the matter to mediation and ordered the children to attend counseling with the
father stating that the father would have parenting time “as the children and [f]ather
agree.” [CITATION]. In February 2013, the magistrate again ordered counseling and stated
that “[e]ither party may request a second initial hearing after ten sessions are
completed. Violations of this Order will result in contempt and a probable jail
sentence, and dismissal of the non-complying party’s motions.” [CITATION].
Five months later, the magistrate issued a decision dismissing the
mother’s motion to reallocate parental rights because neither party had requested
another hearing date after the completion of ten counseling sessions. [CITATION] at ¶ 4.
Over the mother’s objections to the dismissal of her motion with prejudice and
without notice, the trial court adopted the magistrate’s decision in part and
dismissed the mother’s motion without prejudice, noting that she was free to refile.
[CITATION].
On appeal, the Ninth District concluded that, “on the specific facts of
this case,” the trial court’s dismissal order was a final, appealable order because it
affected a substantial right, i.e., the mother’s right to make decisions with respect to
the care and custody of her child. [CITATION] at ¶ 8-9. The court explained:
In this case, [the mother’s] motion to reallocate parental rights
based on the alleged changed circumstances in 2012 has been
dismissed, and there is no final judgment from which she can obtain
relief by means of appeal in the future. Although it is true that she can
file another motion, that is a qualification without meaning in this
context. A parent can always invoke the continuing jurisdiction of the
domestic relations court to consider reallocation of parental rights.
[The mother] can certainly file a new motion; such is her right. What
she cannot do is obtain a ruling on the motion that she filed in 2012 based on circumstances as they existed at that time and upon which the
trial court took evidence at that time. Therefore, on the specific facts of
this case, we conclude that [the mother’s] appeal is final and appealable
under R.C. 2505.02(B)(2) because the trial court’s order affects a
substantial right in the context of a special proceeding.
[CITATION] at ¶ 9; see also [CITATION] (reviewing the merits of the dismissal without prejudice of multiple postdecree
motions without specifically addressing jurisdiction).
In this case, Father does not claim that his motions could not be
refiled for further consideration by the trial court if he were to properly invoke its
continuing jurisdiction or that he would be prejudiced if required to refile his
[SEGMENT 15]
motions. Father did not state (in his motions or in this appeal) that there were
certain rights he would be relinquishing if he had to refile his motions or that a
refiling of his motions would prejudice his ability to seek the relief sought in his
motions with respect to his children. In the affidavit Father submitted in support of
his motions, Father asserted that C.T.C. had already been living with him 24/7 for
over 15 months with Mother’s agreement and that he was having parenting time
with U.C.C. After filing his motions, instead of seeking prompt resolution of the
motions, Father filed a motion to stay based on the existence on a purported
“ongoing settlement agreement” that related to C.T.C. only.
Based on the particular facts and circumstances of this case, we
conclude that the trial court’s September 7, 2023 order dismissing the matter for
lack of prosecution was not a final, appealable order.
Appeal dismissed. It appears that there are no court ruling citations in the provided part of the court ruling. Therefore, no replacements are necessary. The text remains as follows:
It is ordered that appellee recover from appellant the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
LISA B. FORBES, J., and
ANITA LASTER MAYS, J., CONCUR
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as M.E.D. v. P.K., 2023-Ohio-3471.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
M.E.D., :
Plaintiff-Appellee, :
No. 112070
v. :
P.K., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: September 28, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-357855
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A.
Cruz, and Kelley R. Tauring, for appellee.
P.K., pro se.
ANITA LASTER MAYS, A.J.:
I. Introduction and Background
Defendant-appellant P.K., proceeding pro se, appeals the trial court’s
dismissal of a motion to modify child support for lack of jurisdiction due to failure
to perfect service on plaintiff-appellee M.E.D. For the reasons set forth herein, we
dismiss the appeal.
The parties divorced in July 2016, and appellee was designated the
residential parent. On August 9, 2019, appellant filed a motion to modify allocation
of parental rights and an emergency motion for supervised visitation. On
December 17, 2020, the trial court suspended appellant’s parenting time pending an
evidentiary hearing.
Appellant states he hired counsel on September 23, 2020, who filed a
motion to modify child support and obligation for medical insurance on
November 20, 2020, the motion at issue herein. On February 25, 2021, appellant
filed motions to stay and to suspend child support disbursements pending
resolution of the motion to modify child support. The stay was granted on March 5,
2021. Appellee moved for reconsideration on March 15, 2021, on the ground that
the trial court did not allow appellee time to respond pursuant to Civ.R. 6, and that
the stay was not in the best interests of the children. The trial court granted
reconsideration and subsequently denied the stay.
On February 15, 2022, appellee moved to dismiss appellant’s motion
to modify due to insufficient service of process. The motion was denied on
February 18, 2022. On February 22, 2022, the magistrate heard the motion to
modify.
Appellee objected to the motion based on lack of jurisdiction for
failure to comply with Loc.R. 19 that provides “[a] motion that requests a change or
modification of an existing child support or spousal support order must be filed and
served upon the opposing party according to methods of service in Civil Rule 4
through 4.6.” Loc.R. 19 also prescribes the content of the motion and the hearing
procedure. The magistrate acknowledged that appellee was renewing the motion to
dismiss, which the magistrate denied. The hearing proceeded.
During the hearing, appellee requested that the trial court examine
the motion for modification required by Loc.R. 19:
Counsel: Go to his affidavit, could you please? Go to the service
first, the motion.
Go to service.
Your Honor, will you take judicial notice the service of
process was made, I believe pursuant to Civ.R. 5 and not
4, through 4.6. If you could take judicial notice of that, I
would appreciate it.
Magistrate: Yes. Can you identify the document for the record?
Counsel: For the record, Your Honor, Exhibit 35 was a Motion to
Modify Support filed on November 20, 2020, and this is,
we just printed it off from the docket.
Could you go to his affidavit, please?
(Tr. 61-62.) Appellant was also questioned about the contents of the accompanying
affidavit of income and expense.
On June 9, 2022, the magistrate issued a decision modifying support
to zero. Appellee objected to the: (1) denial of the dismissal for improper service
under Civ.R. 4 and Loc.R. 19, rendering the decision void; (2) denial of dismissal for
failure to submit a completed affidavit pursuant to Loc.R. 19; (3) finding that a
change of circumstances warranted modification of the support obligation; (4) grant
of modification of the support obligation contrary to the children’s best interest; and
(5) modification of support under R.C. 3119.05.
On September 23, 2022, the trial court granted the objections, finding
that appellant failed to perfect service by serving appellee’s attorney and not the
appellee in contravention of the express requirements of Loc.R. 19 and Civ.R. 75(J).
Thus, the trial court held that it lacked jurisdiction, vacated and set aside the
magistrate’s decision, and dismissed the motion to modify.
Appellant appeals.
II. Assignments of Error
Appellant assigns three errors:
I. The trial court committed an error of law when it used a local
rule which is inconsistent with Ohio state law and the Ohio
Supreme Court Rules of Civil Procedure to deny its own court
jurisdiction over a Motion to Modify Child Support.
II. The trial court abused its discretion when it issued an order
disclaiming its jurisdiction over the parties and issues
concerning a motion to modify child support, of which it
previously allowed.
III. The trial court abused its discretion in not taking into
consideration that the plaintiff had waived her rights to make a
motion to dismiss defendant’s motion to modify child support
for lack of jurisdiction when plaintiff previously made motions
asking the court to apply its jurisdiction over the motion to
modify child support, had been given the opportunity to address
the jurisdiction issue at many hearings, and did not include in
her motion to dismiss the local rule later proposed at trial.
III. Jurisdiction
An appellate court’s jurisdiction is limited to review of final orders
and judgments. Cooney v. Radostitz, 8th Dist. Cuyahoga No. 110009, 2021-Ohio-
2521, ¶ 12, citing Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2505.02 and
2505.03. Prior to a review of the merits, an appellate court “‘has a duty to examine,
sua sponte, potential deficiencies in jurisdiction.’” Id., citing Scheel v. Rock Ohio
Caesars Cleveland, L.L.C., 8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174, ¶ 7;
Arch Bay Holdings, L.L.C. v. Goler, 8th Dist. Cuyahoga No. 102455, 2015-Ohio-
3036, ¶ 9; see also Scanlon v. Scanlon, 8th Dist. Cuyahoga No. 97724, 2012-Ohio-
2514, ¶ 5 (“In the absence of a final, appealable order, the appellate court does not
possess jurisdiction to review the matter and must dismiss the case sua sponte.”).
R.C. 2505.02(B) lists the types of orders that qualify as final,
appealable orders:
An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3) An order that vacates or sets aside a judgment or grants a new
trial;
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order in effect determines the action with respect
to the provisional remedy and prevents a judgment in
the action in favor of the appealing party with respect
to the provisional remedy.
(b) The appealing party would not be afforded a
meaningful or effective remedy by an appeal following
final judgment as to all proceedings, issues, claims, and
parties in the action.
(5) An order that determines that an action may or may not be
maintained as a class action;
(6) An order determining the constitutionality of any changes to
the Revised Code made by Am. Sub. S.B. 281 of the 124th
general assembly * * * or any changes made by Sub. S.B. 80
of the 125th general assembly * * *;
(7) An order in an appropriation proceeding that may be
appealed pursuant to division (B)(3) of section 163.09 of the
Revised Code.
The dismissal in this case was for lack of personal jurisdiction. A
dismissal for lack of personal jurisdiction ‘“operate[s] as a failure otherwise than on
the merits,’” Crown Servs. v. Miami Valley Paper Tube Co., 162 Ohio St.3d 564,
2020-Ohio-4409, 166 N.E.3d 1115, ¶ 22, quoting Natl. City Commer. Capital
Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d
663, ¶ 8, quoting Civ.R. 41(B)(4)(a). 1
1 This court has previously questioned whether Civ.R. 41 cited in Natl. City applies
to motion practices. Reinhard v. Reinhard, 8th Dist. Cuyahoga No. 95000, 2011-Ohio-
343, ¶ 17 (“We are not convinced that Civ.R. 41 applies to motion practice because it is
entitled ‘Dismissal of actions’ and speaks specifically to dismissals of causes of actions
and counterclaims”). We find that we need not delve into that issue here because the
matter is not determined by Civ.R. 41 but by the presence of a void judgment due to lack
of personal jurisdiction as required by Civ.R. 75(J). “‘[T]o enter a valid judgment, a court
must have personal jurisdiction over the defendant.’” Midland Funding, L.L.C. v.
Cherrier, 8th Dist. Cuyahoga No. 108595, 2020-Ohio-3280, ¶ 9, quoting Mayfran Intl.,
Inc. v. Eco-Modity, L.L.C., 2019-Ohio-4350, 135 N.E.3d 792, ¶ 9 (8th Dist.), citing
Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). A judgment rendered
without personal jurisdiction is void. GGNSC Lima, L.L.C. v. LMOP, L.L.C., 8th Dist.
Ordinarily, a dismissal “otherwise than on the merits” does not
prevent a party from refiling and, therefore, ordinarily, such a dismissal is not a final,
appealable order. Id. at ¶ 8. In this case, not only is appellant able to refile, this
court was informed during oral arguments that appellant filed a new motion to
modify child support in November 2022.
The requirements of Loc.R. 19 and Civ.R. 75(J) must be met to invoke
continuing jurisdiction. Appellant did not meet those requirements. “A judgment
in the absence of personal jurisdiction over the defendant is void.” Lakhodar v.
Madani, 8th Dist. Cuyahoga No. 91564, 2008-Ohio-6502, ¶ 11, citing Lincoln
Tavern, Inc. v. Snader, 165 Ohio St. 61, 64, 133 N.E.2d 606 (1956).
IV. Conclusion
The appeal is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
Cuyahoga No. 105910, 2018-Ohio-1298, ¶ 14, citing Patton v. Diemer, 35 Ohio St.3d 68,
518 N.E.2d 941 (1988), paragraph three of the syllabus.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., DISSENTING:
The motion to modify child support and obligation for medical
insurance (“the motion”) was filed on November 20, 2020, over a year after P.K.
first invoked the domestic relations court’s continuing jurisdiction through the filing
of a motion to modify a parenting order. That first motion was properly served on
M.E.D. under Loc.R. 19 of the Court of Common Pleas of Cuyahoga County,
Domestic Relations Division, and Civ.R. 75(J) (collectively “service rules”), thereby
invoking the domestic relations court’s continuing jurisdiction. At the time the
motion was filed in November, the court had yet to resolve the parties’ ongoing
litigation. Compliance with those service rules was unnecessary with respect to the
motion as long as the domestic relations court possessed continuing jurisdiction
over the post-decree matters. M.E.D. has not established, much less presented an
argument in favor of, a requirement that each separate, post-decree motion must
comply with the initial service rules.
The trial court’s conclusion that it lacked jurisdiction over the motion
effectively denied J.K. relief. Generally speaking, the denial of a motion to modify
support is a final appealable order because the modification cannot be retroactive
beyond the date of the request. Smith v. Smith, 5th Dist. Fairfield No. 2008 CA
00030, 2009-Ohio-3978, ¶ 41; Zamos v. Zamos, 11th Dist. Portage No. 2002-P-
0085, 2004-Ohio-2310, ¶ 13. Thus, any refiling of the motion would limit the date
upon which the subsequent modification, if any, could be retroactively awarded,
which affects “a substantial right in an action that in effect determines the action
and prevents judgment.” R.C. 2505.02(B)(1).
Refiling a motion to modify child support will not afford the party any
relief. If no immediate appeal is permitted, none can be had and the domestic
relations court’s decision would never be subject to appellate scrutiny.
For this reason, I respectfully dissent and would reverse the decision
of the domestic relations court. The denial of the motion to modify is a final,
appealable order, and in light of the procedural posture of the case at the time the
motion was filed, the court’s continuing jurisdiction was not in question. Dismissal
of the motion was not proper.
KEYWORDS
#112070
Civ.R. 4; Civ.R. 75; Loc.R. 19; motion to modify child support; lack of personal
jurisdiction. The trial court properly dismissed appellant’s motion to modify child
support for lack of personal jurisdiction. Appellant failed to perfect service
pursuant to Civ.R. 4, Civ.R. 75, and Loc.R. 19.
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"1",
"5",
"11",
"12",
"13",
"14"
]
Law
9882363
[SEGMENT 1]
[Cite as [CITATION].]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112969
v. :
MONTEZ LOGAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 20, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-10-540250-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Owen Knapp, Assistant Prosecuting
Attorney, for appellee.
Kimberly Kendall Corral, and Gabrielle M. Ploplis, for
appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Defendant-appellant Montez Logan (“Logan”) appeals from the trial
court’s denial of his motion for leave to file a motion for new trial without an
evidentiary hearing. For the reasons that follow, we affirm. I. Factual and Procedural History
This appeal stems from an August 2010 case in which Logan and his
codefendant, Demetrius Allen (“Allen”), were charged in a seven-count indictment:
Count 1, aggravated murder of Miley Slaughter (“Slaughter”); Count 2, aggravated
murder of Kenneth Green (“Green”); Count 3, attempted aggravated murder of
Timothy Sisson (“Sisson”); Count 4, attempted aggravated murder of Antwon
Weems (“Weems”); Count 5, attempted aggravated murder of Willie Tyson
(“Tyson”); and Counts 6 and 7, having a weapon while under disability.
The facts in this matter were previously summarized by this court in
Logan’s direct appeal, as follows:
On July 17, 2010, Slaughter, Green, Sisson, Weems, and Tyson were
socializing outside of Eric Brown’s (“Brown”) house located near the
intersection of East 123rd Street and Signet Avenue in Cleveland[,
Ohio]. The five men were gathered by Sisson’s car, which was parked
on the street. Tyson and Green were sitting on milk crates on the
sidewalk near Sisson’s car and in front of Brown’s house. At
approximately 8:30 p.m., the group of men were ambushed by two
men, later identified as Logan and Allen.
Brown testified that he observed Slaughter, Green, Sisson, Weems, and
Tyson outside his home on the evening of July 17, 2010. He then heard
gunshots and looked outside from his front window. He observed Allen
running across the sidewalk and Brown’s lawn, shooting an “SK” or an
“AK” automatic gun. Slaughter was shot and fell on his back, landing
on Brown’s driveway. Tyson and Green then ran up Brown’s driveway.
Allen stood over Slaughter, told him “I got your [b**** a**],” and shot
Slaughter again. Brown then pulled his front curtain shut and got down
on the floor. Once the gunfire ceased, Brown went outside and
observed Slaughter dead in his driveway. Brown also observed Green
lying down in his backyard. Brown took off his shirt and applied
pressure to Green’s wounds until the paramedics arrived.
Brown testified that he did not observe Logan shoot anyone, but that
Logan had something in his hand. Brown could not see what it was because he could only see Logan from his chest up. He further testified
that Logan acted together with Allen. Brown testified that Logan was
“hyped up shooting * * * Logan * * * was like yeah, yeah, yeah. You
could tell they were together. They were the only two out there.” Brown
further testified that he heard more than 15 gunshots that night.
Brown recognized Allen from the neighborhood, but did not know his
name. Initially, Brown was hesitant to speak with the police. Brown
did not want to be labeled a “snitch.” However, Brown eventually spoke
with the police. Brown identified both Allen and Logan as the
assailants in a photo array and in court.
Weems testified that he was leaning on Sisson’s car when he heard
gunshots. He was shot in his right foot and ran away in the same
direction as Sisson. He testified that he saw Allen with a gun. He
further testified that he observed Slaughter fall to the ground. Weems
testified that he knew Logan and Allen. Weems went to high school
with Logan and knew the mother of Allen’s child. Weems testified that
initially he was hesitant to speak with the police, indicating that he
wanted to avenge the crime himself. However, Weems eventually gave
a statement to the police and identified both Allen and Logan as the
assailants in a photo array and in court.
Sisson testified that the five of them were gathered outside his car when
he heard gunshots. At first, he heard three gunshots, then he heard a
rapid succession of gunshots. He observed Allen with a gun. Slaughter
was shot and lying on the ground. Weems was also shot. Sisson
testified that Weems’s “foot was shot off.” Sisson ran away from the
gunfire. He testified that his foot was grazed by a bullet and that he had
to go to the hospital for treatment.
Tyson testified that both Logan and Allen began shooting at them.
Tyson and Green tried to escape by running up Brown’s driveway, but
Green was shot and could not keep up with Tyson. Tyson hid in a
neighbor’s garage until the gunfire ceased. When he returned to the
scene, he found Slaughter dead in Brown’s driveway and Green lying
on the ground in Brown’s backyard.
Logan and codefendant Allen both testified on their own behalf. Logan
testified that Allen and he are like brothers. On July 17, 2020, they
picked up Allen’s brother, Deandre Allen (“Deandre”), and Deandre’s
friend, Dapolo Green (“Dapolo”), at East 118th Street and Kinsman.
Allen was driving a van. The four of them went to a shoe store located
at the intersection of Harvard and Lee Road. They were at the shoe store for approximately 30 minutes. Allen and Logan then drove
Deandre and Dapolo back to Allen and Deandre’s home in Garfield
Heights. After that, they drove to a liquor store and returned to their
friend’s house on East 93rd and Aetna in Cleveland. Logan testified
that he heard about the shooting after he arrived at his friend’s house.
His friend received a call around 9:00 p.m. and relayed the information
to Allen and Logan. Logan denied shooting at the victims, testifying
that Allen and he were selling drugs that night and making money.
Allen also testified that Logan and he picked up Deandre and Dapolo at
East 118th Street and Kinsman around 6:30 p.m. The four of them
went to a shoe store for approximately 30 minutes. Allen and Logan
then drove Deandre and Dapolo back home in Garfield Heights at
approximately 8:00 p.m. After that, they stopped at a liquor store
before 9:00 p.m. and returned to their friend’s house on East 93rd and
Aetna. Allen also testified that he heard about the shooting after he
arrived at his friend’s house. Allen also denied shooting at the victims,
testifying that Logan and he were selling drugs that night and making
money.
Deandre testified as an alibi witness. Deandre testified that on July 17,
2010, Deandre and Dapolo, who is Green’s cousin, met Allen and Logan
around 6:30 p.m. at East 118th and Kinsman. Allen drove Logan,
Deandre, and Dapolo to the shoe store around 7:00 p.m., where they
stayed for a half-hour. Allen and Logan then drove Deandre and
Dapolo back to Garfield Heights around 8:30 p.m. Deandre testified
that neither Allen nor Logan were outside of his presence from the time
they met at the shoe store until they dropped him off back home.
Deandre denied riding a bicycle by Cook’s house on July 16, 2010. He
further denied speaking with Dapolo that day, advising Dapolo that
Allen and his friends are going to come and “shoot the block up.”
On cross-examination, Deandre admitted that he was only with Allen
and Logan for a short time on the night in question. Deandre testified
that the first time he saw Allen and Logan that day was at 6:30 p.m. He
further testified that he did not see them again that night after they
brought him back home at approximately 8:20 p.m.
The state called Dapolo as a rebuttal witness. Dapolo testified that on
July 16, 2010, he was gathered outside Cook’s house with Green,
Slaughter, Tyson, and Weems when Deandre came by riding a bike.
Deandre asked to speak with Dapolo. After they spoke, Dapolo
returned to Cook’s house and spoke with Green and Slaughter. Dapolo
testified that on July 17, 2010, he met up with Deandre at East 118th and Kinsman, where Allen and Logan picked them up and took them
to the shoe store. They were at the shoe store for about [a] half-hour
and then they drove back to Allen and Deandre’s home. Dapolo then
walked to the corner store and returned back to Deandre’s house.
When he returned, Deandre was the only one there, Allen and Logan
had left.
[SEGMENT 2]
[CITATION] (“Logan I”).
Also relevant to this appeal, Weems specifically testified at trial that
while he was in the hospital receiving treatment, Christopher Perkins (“Perkins”)
visited him in the hospital and relayed to him that Logan and Allen were the parties
involved in the shooting. (Tr. 1344-1345, 1411.) Even though Weems had gone to
high school with Logan and knew Allen through a mutual acquaintance, he did not
remember Logan’s and Allen’s names until Perkins reminded him. Perkins did not
participate in the trial, and investigators denied ever interviewing him in connection
with this incident, despite learning his name from Weems. (Tr. 1756.)
At the close of trial, a jury found Logan guilty of all charges and
specifications, and Logan received a sentence of 46 years to life, which this court
affirmed in [CITATION]. Id. at ¶ 2, 17. The Ohio Supreme Court declined to review our
decision in [CITATION]. This court also denied
Logan’s application to reopen [CITATION].
On April 7, 2023, Logan filed a motion for leave to file a motion for new
trial. Logan’s motion was premised on “potentially favorable information” — an
affidavit prepared by Perkins averring that he did not visit Weems in the hospital following the incident, as well as an affidavit signed by Weems, corroborating that
he was untruthful in stating that Perkins told him the identities of Logan and Allen.
Weems’s affidavit, dated November 5, 2021, averred:
I, Anton Weems, swear that I voluntarily provided this statement to
[private investigator] Tom Pavlish.
I knew Montez Logan & Demetrius Allen from the neighborhood. I
went to school with Montez. I never had problems with neither men
[sic].
I did not see who shot any of us on July 17, 2010. Chris Perkins NEVER
saw me in the hospital.
I only identified Tez & DJ because the prosecutor told me that I would
get probation for [the] case I was locked up on.
They came to interview me before this. I only decided to lie for me [sic]
freedom.
All the information I gave the police was not first hand [sic] knowledge
of what I saw with my [own] eyes.
I deeply apologize for lying. I was just trying to get home.
(Emphasis in original.)
Perkins in his affidavit dated November 26, 2020, averred:
I, Chris Perkins, swear that I voluntarily provided this statement to
[private investigator] Tom Pavlish.
I was not present on July 17, 2010[,] when Miley Slaughter, Kenneth
Green and Antwon Weems were shot.
I never went to Metro Hospital to visit [Weems].
I never told him that Demetrius Allen or Montez Logan were the
shooters.
I have no idea why he is stating that I did. No one ever interviewed me about this incident.
In addition to the Perkins and Weems affidavits, Logan included
records from Garfield Heights Municipal Court (“the Garfield Heights records”)
showing that Dapolo was not completing his community service obligations on
July 17, 2010, as he testified at trial. This, according to Logan, raised questions
surrounding Dapolo’s credibility during trial.
It should be noted that Allen, Logan’s codefendant, filed a motion for
leave to file a motion for new trial premised on the exact same “newly discovered
evidence” that Logan premised his motion for leave to file a motion for new trial on:
the Perkins affidavit, the Weems affidavit, and the Garfield Heights records. The
trial court denied Allen’s motion for new trial, which was appealed to this court. This
court affirmed the denial in [CITATION].
On June 1, 2023, the State filed a brief in opposition to Logan’s motion
for leave to file a motion for new trial.
On June 13, 2023, the trial court denied Logan’s motion for leave to
file a motion for a new trial.
Logan filed a notice of appeal and presents five assignments of error
for our review:
I. The trial court abused its discretion in denying Montez Logan’s
motions for leave to file a motion for a new trial as the evidence
presented meets the requisite standard required under Crim.R. 33.
II. The trial court abused its discretion in failing to hold an evidentiary
hearing, as Logan established unavoidable prevention and the
affidavits presented meet the Calhoun standard. III. The trial court abused its discretion when it failed to hold an
evidentiary hearing, especially in light of the state’s opposition
evidencing a misunderstanding of Brady.
IV. The trial court abused its discretion as evidenced by failing to
identify the correct legal standard or state findings demonstrating its
application of the correct legal standard.
V. It is a per se abuse of discretion when the court gives dispositive
weight to judicial efficiency over every other princip[le] and purpose of
criminal justice.
II. Law and Analysis
Before discussing the assigned errors, we find it necessary to
emphasize the unique posture of Logan’s motion for leave to file a motion for new
trial. This court, in [CITATION], reviewed and considered
the same evidentiary materials attached to a motion for leave to file a motion for
new trial: the Perkins and Weems affidavits and the Garfield Heights records. It
would be simple for this court to cite [CITATION] as precedent, follow it, and affirm the
trial court’s denial of Logan’s motion for leave to file a motion for new trial. We note,
however, that while some of Logan’s arguments align with those that Allen advanced
that were rejected by this court, some are novel and characterized under different
precedents and standards. Therefore, this opinion will focus on Logan’s specific
arguments that differ from those addressed in [CITATION].
We note two differences between Allen’s and Logan’s motions for leave
to file a motion for new trial. Logan included the full transcript of private
investigator Tom Pavlish’s conversation with Weems, which Allen did not. Further,
Logan characterizes his “newly discovered evidence” under two precedential cases that were not argued or cited by Allen. Specifically, Logan characterizes the
affidavits and Garfield Heights records as persuasive under [CITATION], and [CITATION].
This court reviews the denial of a motion for leave to file a motion for
new trial for an abuse of discretion. [CITATION], citing [CITATION]. The decision on whether
to hold a hearing on the motion is also reviewed for an abuse of discretion. [CITATION], citing [CITATION]. The term abuse of discretion “implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” [CITATION]. An abuse of discretion occurs when a court exercises its judgment
in an unwarranted way regarding a matter over which it has discretionary authority.
[CITATION].
Crim.R. 33(A)(6) provides that a new trial may be granted on motion
of the defendant
[w]hen new evidence material to the defense is discovered which the
defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at
the hearing on the motion, in support thereof, the affidavits of the
witnesses by whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court may
postpone the hearing of the motion for such length of time as is
reasonable under all the circumstances of the case. The prosecuting
attorney may produce affidavits or other evidence to impeach the
affidavits of such witnesses. Crim.R. 33(B) provides that when a defendant wishes to file a motion
for new trial based on newly discovered evidence more than 120 days after a verdict
is rendered, the defendant must seek leave from the trial court to file a delayed
motion. [CITATION]. To obtain leave, the
defendant must clearly and convincingly demonstrate that they were unavoidably
prevented from filing their motion for a new trial. Id. ‘“Clear and convincing’
evidence is that ‘measure or degree of proof’ that ‘produce[s] in the mind of the trier
of facts a firm belief or conviction as to the facts sought to be established.’” [CITATION].
Therefore, the sole question before the trial
court “when considering whether to grant a motion for leave based on newly
discovered evidence is whether the defendant has established by clear and
convincing proof that he or she was unavoidably prevented from discovering the
evidence at issue within the time frame provided,” not the merits of the proposed
motion for a new trial. Id. at ¶ 22, citing [CITATION]. A defendant is entitled to a hearing on his or her motion for leave to
file a motion for new trial only if the submitted documents demonstrate that the
defendant was unavoidably prevented from timely discovering the grounds for the
motion. [CITATION].
Relevant to this matter are two distinct methods of demonstrating the
“unavoidably prevented” requirement. First, a defendant may make the required showing that he or she was
[SEGMENT 3]
“unavoidably prevented”1 from filing a timely motion for a new trial based on new
evidence by demonstrating that he or she was previously unaware of the evidence
on which the motion relies and could not have discovered it within the required time
by exercising reasonable diligence. Id. at ¶ 26, citing [CITATION]; Bethel at ¶ 21; [CITATION].
Second, a defendant may make the required showing by establishing
that the prosecution suppressed the evidence at issue. [CITATION], citing Bethel at ¶ 25. (“[W]hen a defendant seeks to assert a Brady
claim in an untimely or successive motion for postconviction relief, the defendant
satisfies the ‘unavoidably prevented’ requirement contained in R.C.
2953.23(A)(1)(a) by establishing that the prosecution suppressed the evidence on
which the defendant relies.”); Johnson at ¶ 16, 18 (a petitioner who files an untimely
or successive petition for postconviction relief may show that he or she was
unavoidably prevented from discovering the evidence on which the petition relies
“by establishing a violation under [CITATION] (“[A] defendant may satisfy the ‘unavoidably prevented’
requirement contained in Crim.R. 33(B) by establishing that the prosecution
suppressed the evidence on which the defendant would rely in seeking a new trial.”).
The Ohio Supreme Court has held that the “unavoidably prevented” requirement
in Crim.R. 33(B) is identical to the “unavoidably prevented” standard as espoused in R.C.
2953.23(A)(1), governing postconviction-relief petitions. As such, caselaw cited herein
dealing with our analysis of the “unavoidably prevented” requirement may pertain to
either Crim.R. 33(B) or R.C. 2953.23(A)(1). [CITATION]. A. “Unavoidable Prevention” Required Under Crim.R. 33
Logan’s first assignment of error addresses the first method of
demonstrating that a defendant was “unavoidably prevented” from discovering the
evidence advanced in a motion for leave to file a motion for new trial, as espoused
in Crim.R. 33.
Logan’s arguments relating to this first method are nearly identical to
those advanced by [CITATION].
In reference to the affidavits, Logan argues that he “did not learn of
the witnesses’ decision to come forward and do the right thing until after the 120-
day window ha[d] closed.” This court was not persuaded by these arguments when
[CITATION] advanced them and is unpersuaded by Logan’s attempts to argue them now.
Indeed, the [CITATION] Court’s conclusion that “there is no evidence in the record
detailing [CITATION]'s efforts, if any, to timely obtain an affidavit from Perkins or Weems
or establishing why any such efforts would have been unavailing,” holds true for
Logan as well. [CITATION], 2024-Ohio-970, at ¶ 34 (8th Dist.).
Unlike [CITATION], however, Logan cites the interview transcript between
private investigator Tom Pavlish and Weems wherein Weems “explicitly provided
that he testified falsely against Logan in order to secure a deal with the prosecution
and ensure his freedom pursuant to unrelated charges.” Despite this extra piece of
evidence, we are unpersuaded that this “moves the needle” so as to demonstrate that
Logan is entitled to leave while [CITATION] was not. Logan also references the photo lineups shown to Weems and Brown
and argues that several issues such as two different photographic lineups and media
exposure tainted these identifications, which in turn “demonstrate[s] why the trial
court should have considered the affidavits of Weems and Perkins in support of his
motion [as] more credible than the state’s evidence as presented at trial.” (Emphasis
in original.) Put simply, this argument is speculative and unsupported by any
evidence provided. After thorough and careful consideration of this argument, we
cannot say that the trial court abused its discretion in rejecting this argument and
declining to grant leave.
In reference to the Garfield Heights records under this assignment of
error, we reference and incorporate the analysis set forth in [CITATION].
Based on the foregoing, we overrule Logan’s first assignment of error.
B. The Calhoun Standard for Affidavits
In his second assignment of error, Logan advances an argument that
the Perkins and Weems affidavits were credible under [CITATION], and therefore, should have been considered adequate under Crim.R. 33.
In [CITATION], the Ohio Supreme Court provided a list of factors for
courts to consider in assessing the credibility of a witness affidavit:
(1) whether the judge reviewing the postconviction relief petition also
presided at the trial, (2) whether multiple affidavits contain nearly
identical language, or otherwise appear to have been drafted by the
same person, (3) whether the affidavits contain or rely on hearsay, (4)
whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner’s efforts, and (5) whether the
affidavits contradict evidence proffered by the defense at trial.
Moreover, a trial court may find sworn testimony in an affidavit to be
contradicted by evidence in the record by the same witness, or to be
internally inconsistent, thereby weakening the credibility of that
testimony.
[CITATION] at 285, citing [CITATION].
After a careful review of the affidavits, we find that we need not reach
the issue of credibility because the contents of the affidavits, even if found credible,
fail to demonstrate a prima facie claim that Logan was unavoidably prevented from
discovering the content therein. We cite all of the analysis employed under the first
assignment of error, but also note the following specific to the nature of the
affidavits.
In reviewing Weems’s affidavit, we note that it is to be treated as an
affidavit recanting Weems’s initial testimony. At trial, Weems maintained that
Perkins visited him in the hospital and “reminded” him of the names of Allen and
Logan, two people who he recognized but was not able to name. In his affidavit,
Weems maintains that Perkins did not visit him in the hospital and that he went
along with the State’s case to receive favorable treatment for one of his own cases.
This directly contradicts his testimony at trial that he had not received any favorable
treatment in exchange for his testimony.2 Evidence that merely contradicts former
Weems verified several times at trial that he was not coerced into or promised
anything in exchange for his testimony:
[THE STATE]: Mr. Weems, were you promised anything to get you to come
in here and testify? evidence is insufficient under Crim.R. 33. [CITATION], ¶ 24 (8th
Dist.), citing [CITATION], ¶ 54 (8th Dist.).
Further reviewing the affidavits, in [CITATION], at ¶ 27,
the Ohio Supreme Court held that a petitioner must “submit evidence of specific
facts beyond the supporting affidavit’s date to explain why the petitioner was unable
to timely obtain an affidavit from the recanting witness.” This is exactly the
argument that Logan relies on.
Logan argues that he was prevented from obtaining these affidavits
unless and until Weems came forward. We found this argument insufficient in [CITATION]
(8th Dist.), and we find it insufficient here as well. Even
considering the transcript from the interview with Tom Pavlish, we again conclude
that it does little to move the needle in establishing the “unavoidably prevented”
[WEEMS]: No, sir.
[THE STATE]: Did I or the police department or anybody promise to do
anything for you in return for you coming in and cooperating?
[WEEMS]: No, sir.
(Tr. 1351.)
[THE STATE]: Did anyone tell you what to say here?
[WEEMS]: No, sir.
[THE STATE]: When you met with me, did I tell you what to say?
[WEEMS]: No, sir.
(Tr. 1416.) requirement. This is especially persuasive because Weems was not under oath
during the interview, and his affidavit avers only that he was “trying to get home,”
without elaborating on any potential deal he was offered or even any details
regarding the supposedly outstanding case that Weems had at the time.
The Perkins affidavit is not a recantation because Perkins never
testified at trial. However, as we concluded in [CITATION], “Allen and his defense
attorneys were well aware of the existence of Perkins and his role in the case at the
time of trial — if not before. Multiple witnesses, including Weems and police
detectives, testified regarding the fact Perkins had allegedly told Weems the names
of the men involved in the shooting.” Id. at ¶ 36. We again reiterate that pursuant
to [CITATION] and [CITATION], merely contradictory evidence, without more, is not
sufficient to support a motion for new trial.
Without even considering the credibility of the affidavits, we are
unable to conclude, based on the contents alone, that they meet the threshold
standard that Logan bore the burden of proving to demonstrate that he was
[SEGMENT 4]
unavoidably prevented from discovering the contents of the affidavits. Accordingly,
we need not and refuse to reach any credibility conclusions about the affidavits
themselves pursuant to [CITATION].
Logan’s second assignment of error is overruled.
C. Brady Material
In his third assignment of error, Logan argues that the Garfield
Heights records constitute Brady material and therefore, satisfy the second method of showing that the defendant was “unavoidably prevented” from discovering the
evidence at issue. Allen did not characterize this evidence as Brady material, so we
proceed to analyze the Garfield Heights records under the Brady standard.
In `[CITATION]`, the Supreme Court of the United States held
that “a state violates the Fourteenth Amendment to the United States Constitution
when it ‘withholds evidence that is favorable to the defense and material to the
defendant’s guilt or punishment.’” `[CITATION]`, at ¶ 19, quoting `[CITATION]` (summarizing Brady’s holding). Further, there are
three components of a true Brady violation: “‘the evidence must be favorable to the
accused, either because it is exculpatory or because it is impeaching; the evidence
must have been suppressed by the state, either willfully or inadvertently; and
prejudice must have ensued.’” Id., quoting `[CITATION]`.
While a Brady violation can form the basis for a motion for leave to
file a motion for new trial, Logan has not made a prima facie showing of a Brady
violation here. With respect to evidence regarding Dapolo’s community service, we
note that this evidence was a public record that was equally available to the
prosecution and defense at the time of the trial. `[CITATION]`, quoting `[CITATION]`
(“Brady does not apply to materials that are not ‘wholly within the control of the
prosecution.’”). It is specious to claim that the State either willfully or inadvertently
withheld this information, and it is even more specious to suggest, without more, that misremembering a detail such as a date that Dapolo had been engaging in
community service prejudiced Logan. Further, Dapolo’s testimony about his
community service obligations was subject to cross-examination at trial.
Finding no merit in Logan’s Brady argument, Logan’s third
assignment of error is overruled.
D. Factual Findings and Judicial Efficiency
In Logan’s fourth assignment of error, he argues that the trial court
abused its discretion by failing to identify the correct legal standard or state findings
demonstrating its application of the correct legal standard. In Logan’s fifth
assignment of error, he argues that it is a per se abuse of discretion when the court
gives dispositive weight to judicial efficiency over every other principle and purpose
of criminal justice. We address these assignments of error together for ease of
discussion.
This court has recently concluded that while it is a “best practice” for
a trial court to issue findings of fact and conclusions of law in connection with
motions for leave to file a motion for new trial, it is not explicitly required by Crim.R.
33. [CITATION] (8th Dist.), citing [CITATION] (8th Dist.); [CITATION] (10th Dist.).
Smith also cites to [CITATION], which interpreted the Ohio Supreme Court’s decision in [CITATION],
as “a split decision without a majority” but indicating, by agreement of the
concurrence and dissent, that trial courts should making findings of fact and conclusions of law when deciding whether to grant leave to file a motion for new
trial.
In the absence of any findings of fact or conclusions of law, the record
is devoid of the trial court’s reasoning for its denial of Logan’s motion. Despite this,
Logan’s fifth assignment of error is based on his unfounded perception that the trial
court’s ruling was based on nothing more than judicial efficiency. Because this
perception is not based on anything in the record, we find this argument meritless
and summarily overrule it.
Logan’s fourth and fifth assignments of error are overruled.
III. Conclusion
The trial court did not abuse its discretion in concluding that Logan
did not meet the evidentiary standard required for a hearing on his motion for leave
to file a motion for new trial, nor did the trial court abuse its discretion in failing to
hold a hearing on such motion because the motion for leave did not indicate that a
hearing was necessary.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, JUDGE
KATHLEEN ANN KEOUGH, A.J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION)
MARY EILEEN KILBANE, J., DISSENTING:
I respectfully dissent from the majority opinion. I would reverse the
trial court’s denial of Logan’s motion for leave to file a motion for a new trial without
an evidentiary hearing and remand the case.
Specifically, I disagree with the majority’s analysis regarding Logan’s
Brady claims. “[W]hen a defendant seeks to assert a Brady claim in an untimely or
successive motion for postconviction relief, the defendant satisfies the ‘unavoidably
prevented’ requirement contained in R.C. 2953.23(A)(1)(a) by establishing that the
prosecution suppressed the evidence on which the defendant relies.” [CITATION],
quoting [CITATION].
Unlike in [CITATION], Logan characterizes the new evidence in his motion
as Brady material. Specifically, Logan argues that both Weems’s assertion that he
testified against Logan in exchange for favorable treatment in his own unrelated
case, as well as the Garfield Heights documents regarding Dapolo’s community
service, constitute Brady material. The majority’s analysis of Logan’s Brady claims is limited to the Garfield Heights documents. I believe that Weems’s affidavit, in
which he not only recants his trial testimony but specifically asserts that he testified
against Logan in exchange for favorable treatment from the State of Ohio,
demonstrates a prima facie showing of a Brady violation.
In support of his motion for leave, Logan attached an affidavit from
Weems and a transcript of Pavlish’s interview with Weems showing that Weems’s
testimony against Logan at trial was motivated by Weems’s desire to resolve his own
unrelated criminal cases. Indeed, following the trial in the instant case, Weems’s
cases were resolved. While the State argues that Weems is unable to provide any
additional details about his alleged plea deal with the State, we note that this sort of
information is exactly the type that the trial court would be able to elicit at an
evidentiary hearing on Logan’s motion.
Therefore, I would find that the trial court abused its discretion in
denying Logan’s motion for leave to file a motion for a new trial without an
evidentiary hearing.
For these reasons, I respectfully dissent.
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112701
v. :
ASHLEY GAINES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 4, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-666719-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Halie Turigliatti, Assistant Prosecuting
Attorney, for appellee.
Gregory T. Stralka, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Ashley Gaines (“Gaines”) appeals her
convictions for felonious assault. For the reasons that follow, we affirm. Procedural and Factual History
Statement of Facts
Gaines and Allison Fadel (“Fadel”), who are sisters, were indicted on
February 22, 2022, on two counts of felonious assault, second-degree felonies, in
violation of R.C. 2903.11(A). The charges stemmed from a fight on November 7,
2021, involving Gaines, Fadel, Sheena Walcott (“Sheena”), and Shawnee Walcott
(“Shawnee”) (collectively “Walcott sisters”). Gaines and Fadel pled not guilty, and
after several pretrials, the matters were set for a joint trial.
During discovery, the state obtained a search warrant for an
Instagram page purportedly linked to Fadel. The state intended to introduce 35
pages from the warrant return of over ten thousand pages. Gaines objected to the
introduction of Fadel’s Instagram pages because they were not authenticated.
The jury trial commenced on April 4, 2023. The testimony revealed
the following undisputed facts. In the early hours of November 7, 2021, the Walcott
sisters attended a birthday party at the Ken Ferguson Party Center in Cleveland,
[SEGMENT 5]
Ohio. They drove separately but walked into the party together at approximately
1:00 a.m. Once inside the party center, they noticed Fadel and Gaines were at the
back of the room. Shawnee was off to the side, and Sheena was dancing in the
middle of the dance floor.
The state offered two versions of the same video into evidence. (Tr. 7.)
The first depicted Gaines on top of Shawnee, who was on the ground, hitting her
several times on her face. Sheena was also on the ground in the video, and Fadel was standing up. The video was approximately 12 seconds long. The other video
was a copy of the first, but in slow motion.
At trial, the state called Shawnee and Sheena Walcott and Detective
Timothy Hannon. Both codefendants, Gaines and Fadel, testified on their own
behalf. Each of the women testified to the following versions of the disputed facts
concerning the altercation.
Shawnee Walcott
Shawnee described her relationship with Gaines as, “So I have no
relationship. I seen her a few times.” (Tr. 438.) Shawnee met Gaines through her
sister Sheena, but they had never conversed. Prior to the fight, she sent an
Instagram message to Gaines canceling a massage appointment. Gaines did not
respond to that message. Shawnee testified that on September 18, 2021, she
attended a party with Fadel. She described Gaines’ reaction to seeing her as
“[Gaines] lit up when she seen me and my sister.” (Tr. 465.) This was the first time
she had seen Gaines up close, and the extent of their interaction was Shawnee
complimenting Gaines’ outfit with no response from Gaines. Gaines never spoke a
word to Shawnee, including the night of the altercation.
Okay. And now on this particular day having had no prior incidents
with you, she comes out of nowhere and starts beating you up?
SHAWNEE: No. They bullied us prior.
Q: You said you never had words with my client, Ashley Gaines, so let’s
talk about Ashley Gaines.
SHAWNEE: Yes, I’m talking about her. Q: She’s never had words with you, correct, per your testimony or is
that not your testimony now?
SHAWNEE: Yes, that is my testimony.
Q: All right. So she’s never had words with you, including the date of
this incident —
SHAWNEE: Correct.
Q: — Correct? But this day, without words ever, she just attacked you
for no reason, is that your testimony?
SHAWNEE: Yes. * * *
[CITATION]
Despite Gaines never speaking to her, Shawnee felt she had to steer
clear of Gaines and Fadel due to bullying. She stated:
A: We stayed clear because they were — me and my sister, Shawnee,
stayed clear of Allison and Ashley because they were bullying us in the
flesh.
[CITATION]
Shawnee described the moments leading up to the fight. She saw
Fadel and Gaines “move in” toward them. Fadel and Gaines proceeded from the
back of the room to the dance floor, with Fadel heading towards where Sheena was
dancing and Gaines moving toward Shawnee. Fadel began dancing in a
“disrespectful” manner and pointing at Sheena as she moved toward her. Shawnee
testified that Gaines approached her from behind. [CITATION] As Shawnee
watched Fadel move toward Sheena, she felt contact on the right side of her face.
Shawnee said that she realized Gaines was assaulting her after the first hit. [CITATION]
====== End of Part ====== Shawnee explained that Gaines hit her with “a tool.” Shawnee did not see a tool but
said the next morning, “I actually had the taste of whatever she had on her hand in
my mouth.” [CITATION]
Q: Okay. And were you able to see anything in her hand during this
altercation?
A: No, because I was unconscious. My right eye, after everything, it
was almost swollen shut because she kept hitting me in it over and
over.
[CITATION] Shawnee stated that she lost consciousness right away and was not even
aware that she was on the ground until she saw the video. [CITATION]
Q: So, would you say you kind of started to lose consciousness after
how many hits?
SHAWNEE: Right away. I didn’t even know where I was. I had an out-
of-body experience. I couldn’t figure out why can’t I defend myself
better. I know size doesn’t matter, but there’s no way it would have
been a complete blowout like that. I knew I couldn’t do anything.
[CITATION]
***
Q: Okay. I want to address the cut on your left leg. Now, do you recall
every moment of this fight?
SHAWNEE: I was unconscious the whole time, like, right away, so
there’s, like — it was, like, flashing before my eyes.
[CITATION]
All of the blows were to the right side of Shawnee’s face, and Gaines
targeted her right temple. [CITATION] At some point, Gaines sliced Shawnee’s leg
with some sort of tool, chipped her teeth, and stomped her pelvis. After the first blow, Shawnee was unconscious throughout the rest of the altercation. (Tr. 392-
393.)
When asked about her sister’s fight, Shawnee testified that she did not
see it and was not even aware Sheena was fighting when it was happening. (Tr. 401.)
Shawnee never saw Fadel during the entire altercation, which she said lasted for six
to eight minutes. On November 17, 2021, she received an anonymous text message
with a video depicting twelve seconds of the fight. Shawnee forwarded the video to
Sheena and then deleted it from her phone. Shawnee did not provide the video nor
the sender’s phone number to the police before she deleted it.
Ashley Gaines
Gaines testified that she sometimes saw Shawnee and Sheena at
parties but never interacted with them. The evening of the fight, Gaines was on the
dance floor when she observed a commotion. (Tr. 567.) She looked for her sister
and quickly realized Fadel was fighting. As she tried to get to Fadel, Shawnee
grabbed her hair, and the two began fighting. They fell to the floor and exchanged
kicks as a man pulled Gaines off of Shawnee. According to Gaines, the fight lasted
less than a minute, and she and Fadel remained at the party after the altercation.
Sheena Walcott
Sheena testified that she noticed Fadel and Gaines at the back of the
party center. Later, she saw Fadel walk up to the dance floor but had no idea where
Gaines was at that time. As she was walking away, Fadel hit her from behind in her
left eye and several times on the left side of her face. The medical records indicated that Sheena believed she was hit by fists and no weapons were involved. She was
diagnosed with a broken orbital bone and nose and post-concussion syndrome.
(State’s exhibit No. 3.)
Allison Fadel
Fadel testified that she is a performer/dancer in the local Caribbean
music scene. She met the Walcott sisters while performing. Fadel and the Walcott
sisters became friends, and they would sometimes perform together. Their
friendship ended a few months before the altercation. On October 22, 2021, Sheena
pushed Fadel over while she was balancing on her head, and she broke her wrist.
Fadel was still in a cast the night of the altercation.
On the night of the fight, Fadel arrived at the party center around
11:30 p.m. She was supposed to perform at the party but had to withdraw after
breaking her wrist. Fadel testified that she was not aware that the Walcott sisters
were at the party until she was pushed by Sheena on the dance floor, poked in her
face multiple times, and then “yoked her up.” (Tr. [CITATION].) When Fadel pushed
her off, Shawnee punched Fadel. At that point, Fadel was fighting both of the
Walcott sisters until “one was pulled off and Sheena was left.” (Tr. [CITATION].) The
state questioned Fadel about a message she sent to someone on Instagram where
she described what happened.
Q: Okay. So you’re saying — this is on page 196 of Exhibit 1-A — that
she kept fucking with me and walking past me and then she pushed my
shoulder, so I told her not to be playing with me because I will beat your
ass tonight and she put her finger in my face, so I choked her and I saw
her sister coming out of the corner of my eyes so I punched her. Carried on to say, I beat the one I was already choking. So you’re saying that
your talk-to-text just corrected Chuck to choking twice?
FADEL: Autocorrect.
(Tr. 553.) Fadel testified that Sheena started the fight and that she was fighting both
Walcott sisters before Gaines intervened.
Detective Timothy Hannon
[SEGMENT 6]
Detective Hannon testified that Detective Nykolai Przybylaski was the
original detective on the case, but he retired. Detective Hannon read several pages
into the record from state’s exhibit No. 1, which consisted of 10,000 pages of Fadel’s
Instagram messages that were returned in response to a search warrant. Detective
Hannon explained that he had received a call from the prosecutor’s office less than
a week before, asking him to handle the case because they had no one to testify.
Detective Hannon reviewed the file but did not have time to investigate or interview
anyone concerning the case. (Tr. 499.)
Gaines and Fadel were both found guilty of two counts of felonious
assault, felonies of the second degree, in violation of R.C. 2903.11(A)(1). The trial
court imposed a sentence of four to six years in prison on both Gaines and Fadel on
April 27, 2023.
Gaines raises the following assignments of error on appeal:
Assignment of Error No. 1
The trial court erred by admitting into evidence, over objection, altered
electronic media of the alleged incident without sufficient foundation. Assignment of Error No. 2
The appellant’s constitutional right to effective assistance of counsel
was violated when such counsel failed to object to inadmissible
evidence.
Assignment of Error No. 3
The jury’s verdict finding the appellant guilty of felonious assault in
Count 1 of the indictment is against the manifest weight of the evidence
since the appellant had no contact with the alleged victim.
Law and Analysis
In her first assignment of error, Gaines challenges the admissibility
of Instagram messages, purportedly from Fadel’s account, and two videos depicting
twelve seconds of the fight. Gaines argues that the Instagram messages
impermissibly incriminated her in violation of the Confrontation Clause.
Additionally, Gaines asserts that the Instagram messages and two videos were not
properly authenticated.
The admission or exclusion of evidence is within the sound discretion
of the trial court and will not be reversed absent an abuse of discretion. [CITATION]
Furthermore, this abuse of discretion must have materially prejudiced the defendant. [CITATION]
The authentication of evidence is a prerequisite to its admissibility.
[CITATION] The proponent of the evidence must offer sufficient evidence that the matter is what it claims to be. However, conclusive proof is not required.
Id.
Gaines argues that the Instagram messages are not admissible for two
reasons. First, Gaines claims that the messages were allegedly written by Fadel and
incriminated Gaines in violation of the Bruton rule. The rule establishes procedures
for handling inculpatory statements made by codefendants in a joint jury trial. See
[CITATION].
In [CITATION], the United States Supreme Court held that in a joint jury
trial, confessions made by a codefendant who does not testify are inadmissible
against the other defendant because that defendant has no opportunity to cross-
examine the confessing codefendant. [CITATION].
However, the Bruton rule is not applicable unless the codefendant
who made the admissions exercises their constitutional right not to testify, and
indirect references are cured by a limiting instruction to the jury. [CITATION].
See [CITATION].
(indirect references to the defendant are permissible as long as the jury is properly
instructed not to consider them against the nonconfessing defendant). Conversely,
when a codefendant does testify, the defendant has an opportunity to cross-examine
them, so Bruton is not implicated, and a limiting instruction is not necessary. Id.
At trial, Fadel testified, and Gaines was afforded an opportunity to cross-examine
her. Therefore, the Bruton rule was not implicated, and a limiting instruction to the jury was unwarranted. Accordingly, the Bruton rule is inapplicable to the Instagram
messages.
Gaines’ second challenge to the admissibility of the Instagram
messages alleges that the messages were not authenticated. The state asserts that
the messages were self-authenticated. The admissibility of evidence by self-
authentication is governed by Evid.R. 902. Domestic business records that are kept
in the ordinary course of business may be authenticated by a certification of the
custodian or another qualified person pursuant to Evid.R. 902(11). “Extrinsic
evidence of authenticity as a condition precedent to admissibility is not required”
for records accompanied by a certificate of acknowledgment executed in the manner
provided by Evid.R. 902. [CITATION], ¶ 57.
The certification must affirm that the records were made at or near the time by, or
from information transmitted by, a person with knowledge that the records are kept
in the course of a regularly conducted business activity and that it was the regular
practice of that business activity to make the record. Evid.R. 803.
In the instant case, the messages were obtained by search warrant
from the social media company Meta and included a written certification page. The
statements in the messages implicated both Fadel and Gaines in the assaults.
Moreover, the messages were self-authenticating because the certification was from
the custodian of the records; the records were kept in the regular course of its
business; made by someone with knowledge of the records and made at or near the
time the messages were created. Accordingly, the trial court did not abuse its discretion when it determined that the Instagram messages were properly
authenticated.
Additionally, Gaines argues that the videos of the altercation were
inadmissible because they were not authenticated. It is undisputed that the videos
were not self-authenticating. When demonstrative evidence is not self-
authenticating, the proponent of video or photographic evidence may authenticate
the evidence by witness testimony only if the witness has knowledge that “the matter
is what it claims to be.” [CITATION]
There are generally two methods of authenticating this type of
evidence. [CITATION] The first is “the silent witness theory.” Id., citing [CITATION] Under this theory, the evidence
speaks for itself; therefore, an independent sponsoring witness is not necessary. Id.
The evidence is admissible if there is sufficient proof of the reliability of the process
or system that produced the evidence. Id. at ¶ 14. Shawnee testified that an
anonymous source sent the video to her; she sent it to her sister and then deleted it
from her phone. She could offer no evidence concerning the reliability of the process
or explain who recorded the video. In this case, the videos could not be
authenticated under the silent witness theory. However, the videos could be admissible to corroborate witness testimony under the second theory of
authenticating demonstrative evidence.
The second theory of authenticating demonstrative evidence is the
“pictorial testimony theory.” [CITATION], at ¶ 32. Authentication under this theory involves testimony from a person
who was present during the events and observed what is depicted or someone who
filmed the image, authenticating the images or what the images depict at trial. Id.
Under this theory, the evidence is admissible only if a sponsoring witness can testify
that it is a fair and accurate representation of the subject matter based on that
witness’s personal observation. [CITATION], ¶ 153; see [CITATION].
In the instant case, neither Shawnee nor Sheena knew the anonymous
source of the video. Shawnee deleted the phone number that sent it. Additionally,
Shawnee could not testify that the video depicted what occurred during the
altercation because she testified that she was unconscious after the first blow.
Shawnee only became aware that she had been on the ground during the altercation
after she saw the video. Moreover, she could not say whether the original video had
been altered.
The state admitted that the second video was altered to render a slow-
motion version of the first video. Although Shawnee identified herself in the videos,
she could not say that the videos depicted an accurate representation of what
happened. Therefore, neither video could be authenticated. The trial court abused its discretion when it admitted the two videos depicting twelve seconds of the
altercation.
A trial court’s abuse of discretion must materially prejudice the
defendant to warrant a reversal. [CITATION], at ¶ 29, citing [CITATION],
citing [CITATION]. Gaines, Fadel,
and the Walcott sisters all testified that the video did not depict the entire fight. Each
of them offered a version of what took place. Gaines said the video accurately
depicted the end of the fight. Gaines was on the ground with Shawnee grabbing her
hair. Gaines explained to the jury her version of what took place during the
altercation, and the jury was free to weigh the credibility of all of the witnesses.
Therefore, we cannot say that the video was materially prejudicial.
Accordingly, the trial court’s admission of the video was a harmless
error. Gaines’ first assignment of error is overruled.
Ineffective Assistance of Counsel
Gaines argues in her second assignment of error that her trial counsel
was ineffective because they failed to object to inadmissible evidence. However,
Gaines’ argument is not supported by the record.
The test for establishing an ineffective assistance of counsel claim is
two-pronged. To succeed, Gaines must establish that 1) her counsel’s performance
was deficient and (2) the deficient performance prejudiced her so as to deprive
Gaines of a fair trial. See [CITATION] N.E.2d 242, ¶ 98, citing [CITATION]. “The failure to prove either prong of this two-part test makes it
[SEGMENT 7]
unnecessary for a court to consider the other prong.” [CITATION]
Gaines claims her counsel’s performance was deficient because they
failed to object or request a limiting instruction once the trial court permitted the
state to introduce statements in violation of the Bruton rule. Gaines argues that
statements made by Fadel in Instagram messages indirectly referenced her and
triggered the Bruton rule. Gaines’ name was redacted, but the messages included
language such as: “us,” “we,” “my sister,” and “our.”
The state sought to introduce several of these messages as admissions
of a party opponent under Evid.R. 801(D).
THE COURT: You mention the Bruton issue —
STATE: Correct.
THE COURT: — Statements made by Miss Fadel and Miss Gaines
regarding the other Defendant —
STATE: Yes.
THE COURT: — Implicating the other Defendant?
STATE: There are a few statements from Miss Fadel saying I’m the one
in the back and my sister, Miss Gaines, is the one in the front. I’ve taken
those out of the portions that I used for direct examination, obviously.
If they’re going to testify, that’s open for cross-examination, and I
would use the additional statements at that time.
THE COURT: All right. So you’ve redacted the implicating statements
by the Defendant of the other Defendant? STATE: Correct.
(Tr. 248-249.) After substantial discussion, the trial court issued rulings regarding
the admissibility and exclusion of several exhibits, and trial counsel did not object
to the admissibility of any exhibits on “Bruton grounds.” Nonetheless, the trial court
addressed the exhibits that contained potential Bruton implications. Furthermore,
Fadel’s decision to testify rendered the Bruton issue moot.
Gaines also claims her trial counsel’s performance was deficient
because they failed to object to the admissibility of two videos. However, the record
demonstrates the trial counsel’s objection. Regarding the videos, trial counsel
stated:
I concur, your Honor. We object to the admission of the video.
Everyone has testified that it’s not a full and accurate depiction of what
happened that evening. It’s amazing it only covers the part where our
client had an advantage. It doesn’t show how it started or why it
started, or anything of that nature.
(Tr. 584.)
As addressed in the first assignment of error, the trial court erred
when it admitted the videos. However, Gaines has failed to demonstrate that her
counsel’s performance was deficient because they did, in fact, object to the
admissibility of the videos. Therefore, we need not address the second prong.
Accordingly, Gaines’ second assignment of error is overruled. Manifest Weight
In her third assignment of error, Gaines argues the conviction of
felonious assault of Sheena Walcott is against the manifest weight of the evidence
because she had no contact with Sheena during the altercation. A manifest weight
challenge requires the reviewing court to sit as the “thirteenth juror” and to consider
the entire record. If, after weighing the credibility of the evidence and resolving any
conflicts, the reviewing court finds that the trier of fact lost its way, the verdict is
against the manifest weight of the evidence and must be reversed. [CITATION]. A reversal of a conviction,
based on a manifest weight challenge, must only happen in those exceptional cases
where the evidence weighs heavily against the conviction. [CITATION].
Although it is undisputed that Gaines made no physical contact with
Sheena, the conviction of felonious assault as it relates to Sheena Walcott was based
on complicity in violation of R.C. 2923.03(F). A person aids and abets another when
she supports, assists, encourages, cooperates with, advises, or incites the principal
in the commission of the crime and shares the criminal intent of the principal. [CITATION]. It is well established that criminal
intent may be inferred from presence, companionship, and conduct before and after
the offense is committed. Id.
====== End of the Court Ruling ====== Here, the trier of fact heard four very different versions of what
occurred leading up to and during the altercation. The jury was free to believe all,
none, or some of the evidence presented. We cannot say that the record lacks
competent and credible evidence to support Gaines’ guilty verdict of complicity in
committing felonious assault on Sheena Walcott. After careful consideration of all
of the evidence in the record, making reasonable inferences from it, and resolving
conflicts in the evidence, we cannot say the jury clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. [CITATION]
Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence. The provided text does not contain any court ruling citations that need to be replaced. The text appears to be a legal procedural entry related to court rulings or mandates and mentions judges and their concurrences on various assignments of error, rather than specific court ruling citations. Therefore, no changes are necessary.
Here is the text in its original form:
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS;
LISA B. FORBES, J., CONCURS WITH THE MAJORITY ON ASSIGNMENTS OF
ERROR NOS. 2 AND 3 AND CONCURS IN JUDGMENT ONLY ON ASSIGMENT
OF ERROR NO. 1
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-06-047
: OPINION
- vs -
/1/2024
:
TIMOTHY G. HALL, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 19CR035473
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Russell S. Bensing, for appellant.
HENDRICKSON, J.
{¶ 1} Appellant, Timothy G. Hall, appeals the decision of the Warren County Court
of Common Pleas summarily denying his petition for postconviction relief without a
hearing after a jury found him guilty of four counts of rape and three counts of sexual
battery that he perpetrated against his then preteen and teenaged stepdaughter, E.A., in
1995, 1997, and 1998. For the reasons outlined below, we affirm the trial court's decision. Warren CA2023-06-047
Facts and Procedural History
{¶ 2} On July 1, 2019, the Warren County Grand Jury returned an indictment
charging Hall with ten counts of first-degree felony rape in violation of R.C.
2907.02(A)(1)(b), 2907.02(A)(1)(c), or 2907.02(A)(2). The indictment also charged Hall
with seven counts of third-degree felony sexual battery in violation of R.C. 2907.03(A)(5).
The charges arose after it was alleged Hall had engaged in "sexual conduct" with two
minor children, his adopted daughter, A.Z., and his stepdaughter, E.A., during different
periods of the 1990s.
The Changing Definition of "Sexual Conduct" Under R.C. 2907.01(A)
{¶ 3} The Ohio Revised Code has provided several different definitions of "sexual
conduct" under R.C. 2907.01(A). Effective January 1, 1974, the term "sexual conduct"
was initially defined to mean:
vaginal intercourse between a male and female, anal
intercourse, fellatio, and cunnilingus between persons
regardless of sex. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
{¶ 4} However, effective September 3, 1996, the term "sexual conduct" was
revised to mean:
vaginal intercourse between a male and female; anal
intercourse, fellatio, and cunnilingus between persons
regardless of sex; and the insertion, however slight, of any
part of the body or any instrument, apparatus, or other object
into the vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or anal
intercourse.
(Emphasis added.)
{¶ 5} The definition of "sexual conduct" was revised in 1996 so that the offense
of felonious sexual penetration found under former R.C. 2907.12 would merge into the
offense of rape. See [CITATION], ¶
Warren CA2023-06-047
[SEGMENT 8]
12 (noting that after September 3, 1996 "conduct that would formerly have constituted
felonious sexual penetration was defined as 'sexual conduct' under R.C. 2907.01[A] and
became prohibited conduct under the rape statute"); [CITATION] (noting that the felonious sexual
penetration statute found under former R.C. 2907.12 "was repealed effective September
3, 1996, and the former conduct constituting [the offense of felonious sexual penetration]
was redefined as 'sexual conduct' and included in the new and current rape statute"); and
[CITATION] (noting that the purpose and effect of redefining the term "sexual
conduct" was to "specifically clarify that what formerly was defined as 'felonious sexual
penetration' [was] now rape").
{¶ 6} Effective March 10, 1998, the term "sexual conduct" under R.C. 2907.01(A)
was revised again to mean:
vaginal intercourse between a male and female; anal
intercourse, fellatio, and cunnilingus between persons
regardless of sex; and, without privilege to do so, the insertion,
however slight, of any part of the body or any instrument,
apparatus, or other object into the vaginal or anal opening of
another. Penetration, however slight, is sufficient to complete
vaginal or anal intercourse.
(Emphasis added.) There have been no further revisions to the definition of the term
"sexual conduct" under R.C. 2907.01(A) relevant to this appeal.
Hall's Five-Day Jury Trial
{¶ 7} On August 24 through August 28, 2020, the matter proceeded to a five-day
jury trial. When the trial started, Hall faced seven charges related to his alleged sexual
abuse of his adopted daughter, A.Z. Those charges were set forth in Counts 1, 2, 3, 4, 5,
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-miller', which should be replaced with `[CITATION]`. Warren CA2023-06-047
7, and 8 of the indictment.1 Count 1 charged Hall with raping A.Z. between July 1, 1991
through June 30, 1993 in violation of R.C. 2907.02(A)(1)(b). Pursuant to that statute, no
person shall engage in "sexual conduct" with another who is not the spouse of the
offender when "[t]he other person is less than thirteen years of age, whether or not the
offender knows the age of the other person." Counts 2, 4, and 7 charged Hall with raping
A.Z. between July 1, 1991 through June 30, 1993, July 1, 1993 through June 30, 1995,
and July 1, 1994 through June 30, 1996 in violation of R.C. 2907.02(A)(2). Pursuant to
that statute, "[n]o person shall engage in sexual conduct with another when the offender
purposely compels the other person to submit by force or threat of force." Counts 3, 5,
and 8 charged Hall with sexually battering A.Z. between July 1, 1991 through June 30,
1993, July 1, 1993 through June 30, 1995, and July 1, 1994 through June 30, 1996 in
violation of R.C. 2907.03(A)(5). Pursuant to that statute, no person shall engage in
"sexual conduct" with another, not the spouse of the offender, when "[t]he offender is the
other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or
person in loco parentis of the other person."
{¶ 8} Hall also faced seven charges related to his sexual abuse of his
stepdaughter, E.A. Those charges were set forth in Counts 9, 10, 11, 12, 13, 14, and 15
of the indictment. Count 9 charged Hall with raping E.A. between June 1, 1995 through
October 1, 1995 in violation of R.C. 2907.02(A)(1)(b), the same Revised Code section
Hall was alleged to have violated in Count 1. Count 10 charged Hall with raping E.A.
between June 1, 1995 through October 1, 1995 in violation of R.C. 2907.02(A)(2), the
same Revised Code section Hall was alleged to have violated in Counts 2 and 4. Count
1. We note, just as we did in our original decision affirming Hall's conviction on direct appeal, that Count 6,
which alleged Hall had raped A.Z. sometime between July 1, 1994 and June 30, 1996 in violation of R.C.
2907.02(A)(1)(c), was nolled by the state prior to trial.
Warren CA2023-06-047
11 charged Hall with sexually battering E.A. between June 1, 1995 through October 1,
1995 in violation of R.C. 2907.03(A)(5), the same Revised Code section Hall was alleged
to have violated in Counts 3, 5, and 8. Count 12 charged Hall with raping E.A. between
June 1, 1997 through October 1, 1997 in violation of R.C. 2907.02(A)(2), the same
Revised Code Section Hall was alleged to have violated in Counts 2, 4, and 10. Count
13 charged Hall with sexually battering E.A. between June 1, 1997 through October 1,
1997 in violation of R.C. 2907.03(A)(5), the same Revised Code section Hall was alleged
to have violated in Counts 3, 5, 8, and 11. Count 14 charged Hall with raping E.A. between
August 1, 1998 through December 31, 1998 in violation of R.C. 2907.02(A)(2), the same
Revised Code section Hall was alleged to have violated in Counts 2, 4, 10, and 12. Count
15 charged Hall with sexually battering E.A. on August 1, 1998 through December 31,
1998 in violation of R.C. 2907.03(A)(5), the same Revised Code section Hall was alleged
to have violated in Counts 3, 5, 8, 11, and 13.
{¶ 9} On the first day of trial, August 24, 2020, the jury heard testimony regarding
Hall's alleged sexual abuse of his adopted daughter, A.Z. This included A.Z. testifying to
several instances where Hall had allegedly digitally penetrated her vagina both prior to
and after she turned 13 years old. Upon the first day of trial coming to an end, and once
the jury left the courtroom, the trial court addressed the parties and noted a potential issue
regarding the pre-September 3, 1996 definition of "sexual conduct" applicable to Hall's
alleged sexual abuse of A.Z. set forth in Counts 1, 2, 3, 4, 5, 7, and 8 of the indictment.
Specifically, as the trial court stated:
The definition of sexual conduct seems drastically different in
, the jury instruction for that. * * * This is for offenses
committed before 7/1/96. It says sexual conduct means
vaginal intercourse between a male and female, anal
intercourse, fellatio, cunnilingus between persons regardless
of sex. Penetration, however, slight, is sufficient to complete
vaginal-anal intercourse. * * * There's no mention of insertion
Warren CA2023-06-047
of other objects into the vaginal or other cavities of the body.
Is — is there something I'm missing here?
The state responded and asked the trial court to hold off on discussing that issue until the
next morning so that both parties could have the opportunity to research the matter
further. The trial court agreed and recessed for the day.
{¶ 10} The second day of trial began on August 25, 2020 with Hall arguing that
"the law's pretty clear that, as a matter of law," the state could not move forward on Counts
1, 2, 3, 4, 5, 7, and 8 related to Hall's alleged sexual abuse of A.Z. between July 1, 1991
through June 30, 1996 given that A.Z. testified to only digital penetration rather than
vaginal or anal intercourse. To support this argument, Hall correctly noted that prior to
September 3, 1996, "felonious sexual penetration was digital penetration and rape was a
separate charge." Therefore, according to Hall, as a matter of law, the state could not go
forward "on the charges of rape that [were] based on digital penetration before 1996 when
the law changed," because "by definition, the improper crime was presented to the grand
[SEGMENT 9]
jury."
{¶ 11} To this, the trial court responded to Hall's argument and stated, in pertinent
part, the following:
Listen, the bottom line is I'm not in a position as I sit here right
at this moment after I've heard less than half of one witness
to make any determinations on that. * * * I don't know what the
rest of the evidence is going to be. There may be evidence
that does match this. * * * I think a Rule 29 at the close of the
State's case would be the appropriate time to deal with this
issue, and not in the middle of the first witness. * * * That's
why I think it's just premature.
{¶ 12} Following this exchange, as well as further discussion about the release of
certain grand jury testimony to Hall, the state resumed its direct examination of A.Z.
Shortly thereafter, as the state's direct examination of A.Z. progressed, the trial court
requested a sidebar with the parties, following which the trial court excused the jury from
Warren CA2023-06-047
the courtroom. Once the jury had exited from the courtroom, the trial court addressed the
parties again and noted that, because the definition of "sexual conduct" had changed
effective September 3, 1996, it was in a "spot" given that it "didn't hear anything else with
the continuation of this particular alleged victim" that would support a finding that Hall had
engaged in "sexual conduct" with A.Z. as that term was originally defined in 1974. The
trial court then noted that it felt the need to correct this issue now before the trial
progressed any further because the testimony offered by A.Z. does not "fit" into the pre-
September 3, 1996 definition of "sexual conduct" applicable to Counts 1, 2, 3, 4, 5, 7, and
8 of the indictment. To this, the state agreed and noted that "we're stuck" with the original
"1974 definition of sexual conduct, in terms of the allegations that cover the time period
of [A.Z.]" The trial court then stated:
Okay. So then the question now becomes, do I allow you to
continue with — with your case in chief with [A.Z.] as 404(B)?
That's — that's where I'm at right now. * * * Or do I simply * *
* give an instruction and tell the jury, look, this is what's
happened. The definition of sexual conduct pre-1996 was
different and it's it doesn't fit up with what's — what's been
testified to so — that I'm dismissing those charges, and then
give a strong instruction with regard to 404(B). That's where
I'm at.
{¶ 13} Continuing, the trial court then noted that it was "trying to salvage some —
something here" when considering everyone had "invested a lot of time and energy to get
to this point and I haven't heard any other alternatives." Hall responded and argued that
he did not think it was "fixable" and that there was no curative instruction the trial court
could provide to the jury "that would cure the taint and the prejudice that has occurred"
given the nature of A.Z.'s testimony. Hall also argued that a curative instruction would not
be sufficient because:
if you tell this jury why, that the, quote, that some people might
consider to be a technicality of law because the [state] didn't
properly indict the case, that jury is irreparably tainted. You
Warren [CITATION]
can't fix that with a curative instruction.
{¶ 14} Hall instead argued that "it has to be a new jury. And we have to start over,
whether we like it or not." The trial court disagreed with Hall and instead determined that
it would make a "course correction" by dismissing Counts 1, 2, 3, 4, 5, 7, and 8 related to
Hall's alleged sexual abuse of A.Z. and provide the jury with a limiting instruction on the
manner in which it could consider A.Z.'s testimony as "other-acts" evidence under Evid.R.
404(B). Despite the trial court noting its intentions, Hall nevertheless continued arguing
against the trial court allowing the trial to continue with only a curative instruction being
provided to the jury because, at that point, the jury had already heard A.Z.'s testimony
and "[y]ou can't unring the bell." But, like before, the trial court responded to Hall's
argument by stating the jury "would be entitled to hear that anyway under 404(B)."
{¶ 15} Changing tactics, Hall then argued, in pertinent part, the following:
Okay. In a different context. Context means everything.
Coming in as a 404(B) to say this is uncharged criminal
conduct, you can't consider for any other reason for the —
other than the pattern under 404(B).
Here, they will have heard it first saying, the State is
presenting this evidence in the context of guilt beyond a
reasonable doubt. Those are two separate standards that —
and the — and to say that a jury — and these are laypeople.
I mean, they've got — I - I have tried to explain these issues
to people who are laypeople. They don't understand. These
are — look at the lawyers in here. Look at the wealth of legal
knowledge and wisdom we have and look at how we're
struggling with it.
And you're going to tell me that a jury isn't going to struggle
with that or wonder why?
{¶ 16} Unpersuaded, the trial court responded and stated, "[t]hey'd probably
struggle with it less because they're not lawyers and they would simply say, oh, the Judge
said this. I'm going to — I'm going to take that — to the bank." Hall then responded,
Warren [CITATION]
"[b]ut the bottom line is, Judge, if you want to — if you want to assure that Tim Hall gets
a clean and fair due process, it's got to be a mistrial. A curative instruction doesn't make
it." The trial court then took a short recess to consider the matter further. A brief time
later, the trial resumed with the trial court stating:
All right. We're back on the record outside the presence of
the jury. The Court is probably a little hasty in taking this
recess and allowing this — this motion to be made at this point
in time.
I don't know why, like in any other case, we wouldn't allow the
State to continue to proceed. I think we all know where this is
heading. But the appropriate time for a Rule 29 motion to
dismiss those counts of the indictment would be at the close
of the State's case.
I'm giving everybody advance notice that, based on what the
Court has heard and the — and the concessions appears to
be made that it would be the Court's intention to grant that
motion at that time. But it's not right now.
So knowing where this is going with [A.Z.] and those counts
relating to her, I'm going to allow the State to continue
presenting their case in chief, and then let's move this along.
We know where this is going, and then I will make a ruling on
the — the Rule 29 and we'll go from there. Motion for mistrial
is denied.
{¶ 17} The jury was then returned to the courtroom and A.Z.'s testimony on direct
examination continued. Following A.Z. testimony about several telephone calls,
voicemails, and text messages that she had received from Hall wherein Hall admitting to
inappropriately touching her as a child, the state concluded its direct examination of A.Z.
and the trial court recessed for lunch. The trial thereafter resumed with Hall's cross-
examination of A.Z., during which Hall questioned A.Z. about a litany of topics. This
included, among things, Hall questioning A.Z. regarding the manner in which she got the
"ball rolling" with the investigation into her allegations of sexual abuse against Hall;
several photographs depicting A.Z. with Hall and his wife, B.H., during loving, family
Warren CA2023-06-047
moments like when A.Z.'s husband asked A.Z. to marry him while at Hall's and B.H.'s
house in 2003; and why A.Z. left out certain, specific details in her written statement
outlining her allegations against Hall that she had provided the Springboro Police
Department. This also included Hall questioning A.Z. about why she did not simply go to
her mother's house that was just a short distance away rather than endure Hall's alleged
sexual abuse, why A.Z. did not tell anybody that Hall was sexually abusing her during
Hall's and her mother's divorce proceedings, and why the teacher that A.Z. claims she
reported Hall's sexual abuse during her sophomore year of high school, N.J., did not
report A.Z.'s allegations despite N.J. being a "mandatory reporter."
{¶ 18} Once Hall's cross-examination of A.Z. concluded, the state then continued
with its case-in-chief by calling to the stand A.Z.'s mother, S.H. The second day of trial
concluded with Hall's cross-examination of S.H. The third day of trial, August 26, 2020,
[SEGMENT 10]
consisted of E.A. testifying about the sexual abuse Hall had perpetrated against her both
before and after she turned 13 years old. This included E.A. testifying to an incident
where she remembers Hall having raped her at their home on Eyler Drive in Clearcreek
Township, Warren County, Ohio in the summer of 1995 when she was 12 years. E.A.
also testified about Hall raping her at their home on Fairway Drive in Springboro, Warren
County, Ohio in the summer of 1997 and the fall of 1998 when she was 14 and 15 years
old, respectively. The fourth day of trial began with the state calling two detectives to the
stand to testify, Detective Kevin Barton with the Clearcreek Township Police Department
and Detective Terry Dunkel with the Springboro Police Department. Once their testimony
concluded, the state rested and moved for the admission of its exhibits, the majority of
which were admitted into evidence without objection.
{¶ 19} Following the admission of the state's exhibits, Hall then moved for a
Crim.R. 29(A) motion for acquittal on Counts 1, 2, 3, 4, 5, 7, and 8 on the indictment
- 10 - Warren CA2023-06-047
related to his alleged sexual abuse of A.Z. To support this claim, Hall argued that "the
definition that was not met, legal definition of penetration by a penis." The state agreed
that "there was a change in the law" regarding the definition of "sexual conduct" that
limited it to "vaginal intercourse, anal intercourse and two forms of sexual oral
intercourse." Because of this change in the law, the state noted that it did not "really have
a good argument" and agreed that "the testimony — that [A.Z.] does not meet that
standard." Upon hearing this, the trial court granted Hall's Crim.R. 29(A) motion for
acquittal on Counts 1, 2, 3, 4, 5, 7, and 8 of the indictment related to Hall's alleged sexual
abuse of A.Z. between July 1, 1991 through June 30, 1996. In so holding, the trial court
initially stated that, "[t]he Court finds that the testimony of [A.Z.] related solely to digital
penetration, and that all of the offenses relating to her occurred prior to July 1st of 1996."
The trial court then stated:
There are no allegations concerning [A.Z.] post that date. It's
clear that the definition of sexual conduct, which is alleged in
all of those counts that have been moved by the defense to
be dismissed deal with digital penetration only. And, therefore,
they do not — they do not satisfy the legal definition of sexual
conduct as alleged in the indictment for rape or sexual battery.
So, therefore, Counts 1, 2, 3, 4, 5, 7 and 8 will be dismissed.
{¶ 20} Following its decision on Hall's Crim.R. 29(A) motion for acquittal, the trial
court then denied Hall's renewed motion for a mistrial that he had filed with the trial court
on the morning of the third day of trial. In so holding, the trial court stated:
At this time, and again, the Court has obviously struggled with
this this week and — and, again, in — there — there's several
different ways that I can look at it.
I believe that — that allowing the State — again, if I look at it,
that I grant your motion and we come back and we try this
case again, the Court believes that the — the next jury is going
to hear the exact same testimony, only in — in a 404(B)
context versus the — those additional counts from the
indictment.
- 11 - Warren CA2023-06-047
So I — the Court believes that I would be in the exact same
position, just with a different jury at that time. I don't think that
at this point it time, there's been any demonstration that the
prejudicial effect outweighs the probative value. Clearly prior
acts, other acts are permitted under evidence rule 404(B).
So, at this time, the Court is going to deny your request for a
mistrial.
{¶ 21} Upon denying Hall's renewed motion for a mistrial, the trial court then
recessed for lunch. After returning from lunch recess, the state formally rested and moved
for the admission of its exhibits. Once this happened, the trial court addressed the jury
and stated, "All right. Thank you. All right. Ladies and gentlemen of the jury, I need you
to pay close attention right at this moment." The trial court then instructed the jury as
follows.
The Court has withdrawn from your consideration Counts 1,
, 3, 4, 5, 7 and 8. You are not to speculate as to why the
Court has withdrawn them. Evidence relating to those counts
was received about the commission of other acts, other than
the remaining offenses with which [Hall] is charged in this trial,
specifically the allegations made by [A.Z.], that evidence was
allowed for a limited purpose. It was not received and you
may not consider it to prove the character of [Hall] in order to
show that he acted in conformity with that character in this
case with the remaining charges.
If you find at the close of the case that the evidence of the
other acts is true and that [Hall] committed them, you may
consider that evidence only for the purpose of deciding
whether it tends to prove [Hall's] motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake
or accident.
{¶ 22} For the remainder of the fourth and fifth days of trial, which took place on
August 27 and 28, 2020, Hall proceeded with his defense case-in-chief by calling an
additional five witnesses to the stand. These witnesses included A.Z.'s high school
chemistry teacher, N.J., Hall's biological daughter, A.L., Hall's sister-in-law, C.H., and
Hall's wife, B.H. Hall did not testify in his defense. As part of her testimony, Hall's wife,
- 12 - Warren CA2023-06-047
B.H., testified that she never saw anything that would have been a "red flag" regarding
how Hall treated A.Z. or E.A. when they were children. B.H. also testified that she did not
see or hear anything that she felt was "unusual" with Hall. B.H. further testified that she
did not see any "signs of any distress or anything" with A.Z. or E.A. B.H. additionally
testified that she did not see anything that would have led her to believe Hall was sexually
abusing any child, including A.Z. and E.A. B.H. also testified that for E.A. to say the things
she is now claiming that E.A. has "got some deep-seeded mental health issues that she
needs to probably get addressed." B.H. testified the same was true as it relates to A.Z.
Following B.H.'s testimony, Hall rested his defense case-in-chief and moved to admit his
exhibits, of which all but two were admitted into evidence by the trial court without
objection.
{¶ 23} The trial then moved on to the presentation of the parties' closing
arguments. During his closing argument, Hall maintained his original defense strategy
that he introduced to the jury as part of his opening statement. That is, Hall argued that
the allegations levied against him by both A.Z. and E.A. were false and that, while he did
admit to having "sexual contact" with A.Z. and E.A. by inappropriately touching them both
one time when they were children, he had never engaged in "sexual conduct" with either
A.Z. or E.A. as was alleged in the indictment. This included the following as it relates to
the manner in which the jury could consider A.Z.'s testimony as "other-acts" evidence
under Evid.R. 404(B):
Now, got to talk to you a little about — this is what we call
evidence Rule 404(B). It's in your instructions as alleged
other acts. It's important that you pay strict attention to that
rule and here's why.
It is a very, very limited instruction on what you're allowed to
consider it for, and this relates to [A.Z.'s] allegations. You may
only consider that evidence for a very limited, narrow purpose
that relates to — not character, not character. You cannot use
- 13 - Warren CA2023-06-047
that information to say, because [Hall's] admitted to two — two
illegal acts that he's not charged for, that that means he
committed rape. You cannot do that.
Hall also stated:
You're only allowed to use [A.Z.'s testimony] for that limited
purpose of opportunity, plan, whether or not you think — and
that requires you to get to the place of thinking that there's
some truth, truth in what [A.Z.] says.
So you can't convert that belief that relates to [A.Z.] into a
reason to find [E.A.'s] charges founded. In other words, to find
[Hall] guilty because you've got to look at the independent
evidence as it relates to [E.A.'s] claim.
[SEGMENT 11]
The instructions lay that out for you, somewhat legalese. But
when you look at it, I think that you will understand what that
instruction means.
[CITATION] Once the parties' closing arguments were complete, the trial court provided
its final instructions to the jury. This included the following instruction regarding the way
the jury could consider A.Z.'s testimony as "other-acts" evidence under Evid.R. 404(B).
Evidence was received about the commission of other acts,
other than the offenses with which [Hall] is now charged in this
trial. Specifically, I am referring to the allegations of [A.Z.]
That evidence was received only for a limited purpose. It was
not received and you may not consider it to prove the
character of [Hall] in order to show that he acted in conformity
with that character in this case regarding the remaining counts
involving [E.A.]
If you find that the evidence of other acts as alleged by [A.Z.]
are true, and that [Hall] committed them, you may consider
that evidence only for the purposes of deciding whether it
proves [Hall's] motive, opportunity, intent or purpose, absence
of mistake or accident, or preparation or plan to commit the
offenses charged in this trial. That evidence cannot be
considered for any other purpose.
[CITATION] After the trial court completed its final jury instructions, the jury was then
released for deliberations. Three hours and five minutes later, the jury returned to the
courtroom with a verdict finding Hall guilty of sexually abusing E.A. as alleged in Counts
- 14 - Warren CA2023-06-047
9, 10, 11, 12, 13, 14, and 15 of the indictment. Approximately two months later, on
November 24, 2020, the trial court held a sentencing hearing. During that hearing, the
trial court merged Counts 9, 10, and 11 together, Counts 12 and 13 together, and Counts
14 and 15 together as allied offenses of similar import. Following the trial court's merger,
the state elected to proceed with sentencing Hall on Counts 9, 12, and 14. The state's
election effectively consolidated the seven offenses that Hall had been found guilty into
the 1995 rape of E.A. at the house on Eyler Drive in Clearcreek Township, Warren County,
Ohio, and the 1997 and 1998 rapes of E.A. at the house on Fairway Drive in Springboro,
Warren County, Ohio. Following the state's election, the trial court then proceeded with
its sentencing decision and sentenced Hall to a mandatory term of life in prison. The trial
court also designated Hall a sexual predator and notified Hall that he would be subject to
a mandatory five-year postrelease control term if he was ever released from prison.
Hall's Direct Appeal and the Ohio Supreme Court's Decision Declining Review
{¶ 26} On December 14, 2020, Hall filed a direct appeal from his conviction to this
court. To support his appeal, Hall raised six assignments of error for this court's
consideration. Within his six assignments of error, Hall argued the trial court erred by
denying his motion for a mistrial because A.Z. was allowed to testify as a "victim" of his
alleged sexual abuse at trial, which "[e]ven the best curative instruction could not
eliminate the inflammatory prejudice caused to [him]." Hall also argued the trial court
erred by admitting A.Z.'s testimony as "other-acts" evidence pursuant to Evid.R. 404(B),
as well as in the manner in which the trial court instructed the jury it could consider A.Z.'s
testimony under Evid.R. 404(B).
{¶ 27} However, upon review, this court disagreed with each of Hall's arguments
raised in support of his six assignments of error and affirmed Hall's conviction in its
entirety on April 4, 2022. [CITATION]
- 15 - Warren CA2023-06-047
1147. In so holding, this court noted that "[n]obody," not the trial court, Hall, or the state,
knew prior to A.Z. taking the stand on the first day of trial that it was only after September
3, 1996 that the definition of "sexual conduct" set forth in R.C. 2907.01(A) included digital
penetration. [CITATION] at ¶ 202. This court also noted that, although not perfect, Hall
nevertheless received a fair trial. [CITATION] at ¶ 187. Shortly after this court issued its opinion,
Hall appealed this court's decision to the Ohio Supreme Court. The Ohio Supreme Court,
however, declined to accept Hall's appeal for review on August 17, 2022. [CITATION].
Hall's Petition for Postconviction Relief and the Trial Court's Dismissal
{¶ 28} On April 15, 2022, less than two weeks after this court issued our opinion
affirming Hall's conviction on direct appeal, Hall filed a pro se petition for postconviction
relief. Although not explicit, Hall filed his petition pursuant to R.C. 2953.21(A)(1)(a)(i).
Pursuant to that statute, any person who has been convicted of a criminal offense, and
who claims that there was such a denial or infringement of the person's rights as to render
the judgment "void or voidable" under the Ohio Constitution or the United States
Constitution, "may file a petition in the court that imposed sentence, stating the grounds
for relief relied upon, and asking the court to vacate or set aside the judgment or sentence
or to grant other appropriate relief[.]" To support his postconviction relief petition, Hall
presented seven grounds for relief, all seven of which were based upon his trial counsel's
alleged ineffective assistance of counsel in violation of the Sixth Amendment to the United
States Constitution and Section 10, Article I of the Ohio Constitution.
{¶ 29} However, given Hall's arguments advanced in his appellate brief, only three
of those grounds are relevant to this appeal. The first of those three stated grounds
provided, in pertinent part, the following: (1) ineffective assistance of counsel for failing to
"prepare an effective defense prior to trial," to "present an effective defense including trial
- 16 - Warren CA2023-06-047
strategy," to "protect and preserve" Hall's "legal rights for future appeals," and to "raise
an objection" and "motion" prior to trial challenging the state's ability to move forward on
Counts 1, 2, 3, 4, and 7 of the indictment as it related to his alleged sexual abuse of his
adopted daughter, A.Z., all of which was to have occurred prior to the September 3, 1996
definition of "sexual conduct" set forth in R.C. 2907.01(A) came into effect, where none
of the pretrial information supported those counts and Hall's trial counsel "missed it."2
{¶ 30} Whereas the second and third stated grounds provided (2) ineffective
assistance of counsel for failing to "adapt a strategy" upon learning the charges related
to Hall's alleged sexual abuse of A.Z. would likely be dismissed at the end of the state's
case-in-chief, as well as for failing to object to the trial court's instructions it provided to
the jury as it relates to the manner in which the jury could consider A.Z.'s testimony as
"other-acts" evidence pursuant to Evid.R. 404(B); and (3) ineffective assistance of
counsel for failing to adapt a varying trial strategy despite a "fundamentally changed set
of circumstances" after learning the charges related to Hall's alleged sexual abuse of A.Z.
would likely be dismissed at the end of the state's case-in-chief, and for providing the jury
with "incomprehensible instructions" during closing argument regarding how it could
consider A.Z.'s testimony as "other-acts" evidence pursuant to Evid.R. 404(B), which
"grievously undermined" Hall's right to fair trial and "adversely influenced the jury."
{¶ 31} To support those three stated grounds for relief, Hall attached to his
postconviction relief petition [CITATION] decision affirming his conviction on direct appeal,
as well as affidavits from Hall and his wife, B.H., wherein they both averred that, while
driving home following the first day of trial, one of Hall's attorneys stated to them over the
2. We note that, for reasons unknown, Hall's first ground for relief addresses only Counts 1, 2, 3, 4, and 7
of the indictment without making any reference to the other two counts related to his alleged sexual abuse
of A.Z. set forth in Count 5 and Count 8 of the indictment.
- 17 - Warren CA2023-06-047
phone, "Wow! I wish we would have found that," in reference to the lack of digital
penetration in the pre-September 3, 1996 definition of "sexual conduct" set forth in R.C.
2907.01(A).
{¶ 32} On May 26, 2022, the state filed a motion to dismiss Hall's petition for
postconviction relief, or, in the alternative, motion for summary judgment. Just over three
[SEGMENT 12]
months later, on August 30, 2022, the trial court issued a decision and entry summarily
dismissing Hall's postconviction relief petition without a hearing. In so holding, the trial
court initially determined that Hall's "assertions of ineffective assistance of counsel are
barred by the doctrine of res judicata." The trial court also noted that, even if Hall's
ineffective assistance of counsel claims were not barred by the doctrine of res judicata,
"this Court would still find [Hall's] ineffective assistance of counsel argument fails, as [Hall]
cannot show that trial counsel's representation fell below an objective standard of
reasonableness, and that there is a reasonable probability that, but for the defective
representation, the outcome of the proceeding would have been different." This is in
addition to the trial court finding "the affidavits relied upon by [Hall] in his postconviction
petition lack credibility" and must be "weighed cautiously" given that both Hall and his
wife, B.H., "have a clear interest in [Hall's] success in this petition." The trial court
thereafter concluded by finding Hall's petition for postconviction relief must be summarily
dismissed without a hearing because "the petition is barred by the doctrine of res judicata
and the petition, supporting affidavits, documentary evidence, files, and record do not set
forth sufficient operative facts to establish substantive grounds for the relief requested."
Hall's Appeal and Single Assignment of Error for Review
{¶ 33} On September 30, 2022, Hall filed a notice of appeal from the trial court's
decision summarily denying his petition for postconviction relief without a hearing.
Following some delay, this court accepted Hall's appeal as timely and issued a scheduling
- 18 - Warren CA2023-06-047
order directing when the record and the briefs of the parties were to be filed. Pursuant to
that scheduling order, the parties filed their respective briefs with this court on October 9,
November 30, and December 21, 2023. Oral argument was thereafter held before this
court on February 20, 2024. Hall's appeal now properly before this court for decision,
Hall has raised one assignment of error for review. In that single assignment of error, Hall
argues the trial court erred by summarily denying his postconviction relief petition without
a hearing. We disagree.
Petition for Postconviction Relief Standard of Review
{¶ 34} "In Ohio, persons convicted of criminal offenses may petition a trial court for
postconviction relief if they fit into one of four categories." [CITATION]. Those four categories
are set forth in R.C. 2953.21(A)(1)(a)(i) through (iv). Relevant here is the first category,
which "permits a person convicted of a criminal offense to petition the trial court to vacate
his conviction when he believes 'there was such a denial or infringement of [his] rights as
to render the judgment void or voidable under the Ohio Constitution or the Constitution of
the United States.'" [CITATION], quoting R.C.
2953.21(A)(1)(a)(i). When a criminal defendant challenges his conviction through a
postconviction relief petition, like Hall does in this case, the trial court may hold an
evidentiary hearing on the issues raised by the petition. [CITATION], citing R.C. 2953.21(D) thru (F).
However, "[a]n evidentiary hearing is not automatically guaranteed each time a defendant
makes a petition for postconviction relief." [CITATION]. Rather, "[t]he trial court, before
granting a hearing on a petition filed under R.C. 2953.21(A)(1)(a)(i), is required to
'determine whether there are substantive grounds for relief.'" [CITATION], quoting R.C.
- 19 - Warren CA2023-06-047
2953.21(D).
{¶ 35} "A petition presents substantive grounds for relief when it contains
allegations that are sufficient to state a constitutional claim and the files and records of
the case do not affirmatively disprove the claim." [CITATION], ¶ 24, citing [CITATION]; and R.C.
2953.21(F). "In determining whether the petition states a substantive ground for relief,
the trial court must consider the entirety of the record from the trial proceedings as well
as any evidence filed by the parties in postconviction proceedings." [CITATION], ¶ 24, citing R.C. 2953.21(D). "If the record on its face
demonstrates that the petitioner is not entitled to relief, then the trial court must dismiss
the petition." Id., citing R.C. 2953.21(D) and (E). That is to say, "'[a] trial court properly
denies a defendant's petition for postconviction relief without holding an evidentiary
hearing where the petition, the supporting affidavits, the documentary evidence, the files,
and the records do not demonstrate that petitioner set forth sufficient operative facts to
establish substantive grounds for relief.'" [CITATION], quoting [CITATION],
paragraph two of the syllabus. However, "[i]f the record does not on its face disprove the
petitioner's claim, then the court is required to 'proceed to a prompt hearing on the
issues.'" [CITATION], quoting R.C. 2953.21(F); see also [CITATION], ¶ 28 ("[t]he defendant is entitled to an evidentiary hearing when the
allegations in the motion demonstrate substantive grounds for relief").
{¶ 36} "A trial court's decision to summarily deny a postconviction petition without
holding an evidentiary hearing will not be reversed absent an abuse of discretion." [CITATION], ¶ 6. "The standard
is deferential, requiring the trial court to engage in more than mere error in law or
- 20 - Warren CA2023-06-047
judgment." [CITATION]
This court must instead "find that the trial court's ruling was unreasonable, arbitrary, or
unconscionable." [CITATION] "A decision is unreasonable where a sound reasoning process does not
support it." [CITATION]
"[A]n 'arbitrary' decision is one made 'without consideration of or regard for facts [or]
circumstances.'" [CITATION], quoting
Black's Law Dictionary 125 (10th Ed.2014). "An unconscionable decision may be defined
as one that affronts the sense of justice, decency, or reasonableness." [CITATION]
Therefore, for this court to find an abuse of discretion,
"the trial court's judgment must be so profoundly and wholly violative of fact and reason
that 'it evidences not the exercise of will but perversity of will, not the exercise of judgment
but defiance thereof, not the exercise of reason but rather of passion or bias.'" [CITATION], quoting [CITATION]
The Application of the Doctrine of Res Judicata
{¶ 37} To support his single assignment of error, Hall initially argues the trial court
erred by misapplying the doctrine of res judicata when summarily dismissing his petition
for postconviction relief without a hearing. We disagree.
{¶ 38} "It is well established that a trial court may dismiss a postconviction relief
petition on the basis of the doctrine of res judicata." [CITATION] "The doctrine of res judicata precludes a
convicted defendant 'from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or any claimed lack of due process that was raised or could
- 21 -
====== End of Document ====== Warren CA2023-06-047
have been raised' at trial or on direct appeal." [CITATION] at ¶ 22, quoting
[CITATION], syllabus. "So a court reviewing a
postconviction-relief petition generally may not decide a claim that could have been
presented at trial and raised on direct appeal." [CITATION] at ¶ 2, citing
[CITATION]. There is a twist, however, when it comes
to petitions for postconviction relief that are based on the alleged ineffective assistance
of counsel. Id. As noted by the Ohio Supreme Court, "res judicata does not bar a
postconviction ineffective-assistance-of-counsel claim when either (1) the petitioner had
the same attorney at trial and on appeal or (2) he must rely on evidence outside the trial
record to establish his claim for relief." Id., citing [CITATION]
(1982). That is to say:
if the petitioner's appellate counsel is different from his trial
counsel and the matter could have been subject to appeal on
the record, res judicata will bar that postconviction claim for
relief. A different outcome results if the petitioner had the
same attorney at trial and on appeal or he must rely on
evidence outside the trial record to establish his claim for
relief. * * * In that circumstance, res judicata does not serve to
bar a claim of ineffective assistance of counsel in a
postconviction petition.
(Internal citation deleted.) [CITATION] Therefore, while it is generally true that res judicata will bar a claim that could
have been presented at trial and raised on direct appeal, res judicata does not, in and of
itself, "bar all ineffective-assistance claims that were previously raised in a direct appeal."
[SEGMENT 13]
[CITATION] at ¶ 38.
{¶ 39} Rather, a petitioner who presents a postconviction ineffective assistance of
counsel claim, and who demonstrates through evidence outside the trial record that their
ineffective assistance of counsel claim either was not, or could not have been, fairly
adjudicated in the petitioner's direct appeal, the petitioner is provided "a second
- 22 - Warren CA2023-06-047
opportunity to litigate the claim." (Emphasis sic.). [CITATION] at ¶ 38. This
necessarily means that "claims that rely on evidence outside the record may be heard on
postconviction review even if similar claims have been previously raised and adjudicated
against the petitioner in his direct appeal." Id. at ¶ 41. This would include, for example,
a petitioner's ineffective assistance of counsel claim "regarding counsel's failure to
present evidence." Id. It would not include, however, a petitioner's ineffective assistance
of counsel claim "based on counsel's failure to object to obviously prejudicial evidence"
as that claim could have fairly been "resolved on appeal based on evidence entirely within
the trial record." Id. Therefore, "when the petitioner had a new attorney on appeal and
the claim could have been litigated based on the trial record, res judicata applies and the
postconviction claim is barred." Id. at ¶ 2. Conversely, where a petitioner has brought
forth evidence outside the record of ineffective assistance of counsel, that showing is
generally sufficient, "'if not to mandate a hearing, at least to avoid dismissal on the basis
of res judicata.'" Id. at ¶ 31, quoting [CITATION] at 114.
{¶ 40} In this case, Hall, whose trial counsel and counsel on direct appeal were not
the same, brought forth evidence outside the trial record in support of his ineffective
assistance of counsel claim. That evidence included, most notably, Hall's and his wife
B.H.'s affidavits, wherein they both averred that, while driving home following the first day
of trial, one of Hall's attorneys stated to them over the phone, "Wow! I wish we would
have found that," in reference to lack of digital penetration in the pre-September 3, 1996
definition of "sexual conduct" set forth in R.C. 2907.01(A). However, although presenting
evidence that was undoubtably outside the trial record, Hall has not demonstrated that
without the benefit of such evidence his ineffective assistance of counsel claim either was
not, or could not have been, fairly adjudicated as part of his direct appeal to this court.
That is to say, while potentially helpful to Hall had that evidence been a part of the trial
- 23 - Warren CA2023-06-047
record, Hall's claim that his trial counsel was ineffective for failing to discover the pre-
September 3, 1996 definition of "sexual conduct" set forth in R.C. 2907.01(A) did not
include digital penetration was in no way reliant upon any evidence outside of the trial
record. This includes either Hall's or Hall's wife B.H.'s affidavits.
{¶ 41} Rather, based on the record properly before this court, we find it clear that
Hall could have instead, had he so chosen, raised that ineffective assistance of counsel
claim as part of an appropriately worded assignment of error. Hall did not raise that issue
as part of his direct appeal and the doctrine of res judicata bars Hall from doing so now
as part of his petition for postconviction relief. See, e.g., [CITATION], ¶ 13 (affirming trial court's decision dismissing
appellant's petition for postconviction relief on the basis that his ineffective assistance of
counsel claims were barred under the doctrine of res judicata given that each of the issues
appellant raised in support of his ineffective assistance of counsel claim could have been
raised either at trial or on direct appeal).
{¶ 42} "The petitioner can avoid the bar of res judicata by submitting evidence
outside the record on appeal that demonstrates that the petitioner could not have raised
the claim based on information in the original record." [CITATION], ¶ 24. However, "[f]inding an item outside the
record to attach to a petition does not turn an issue into a substantive post-conviction
claim where it is essentially cumulative to evidence that was in the record on a topic that
could have been raised on direct appeal." [CITATION], ¶ 41. Moreover, "[i]f the evidence outside the record is 'marginally
significant and does not advance the petitioner's claim beyond a mere hypothesis and a
desire for further discovery,' res judicata still applies to [bar] the claim." [CITATION], ¶ 14, quoting [CITATION],
- 24 - Warren CA2023-06-047
12th Dist. Clermont No. CA98-10-090, [CITATION].
Such is the case here. Therefore, contrary to Hall's claim otherwise, the trial court did not
err in its application of the doctrine of res judicata when summarily dismissing Hall's
petition for postconviction relief without a hearing. To the extent Hall claims otherwise,
such argument lacks merit.
Hall's Evidence Does Not Present Substantive Grounds for Relief
{¶ 43} Regardless, even if we were to find the doctrine of res judicata did not apply
to bar Hall's ineffective assistance of counsel claim, it is important to note that "merely
providing evidence outside the record is not sufficient to entitle a petitioner to a hearing."
[CITATION]. That is to say, "simply overcoming the res judicata bar through the introduction of evidence
outside the record is not sufficient," in and of itself, to necessitate the trial court holding a
hearing on the matter. [CITATION].
{¶ 44} Rather, to be entitled to a hearing, "a petitioner 'must proffer evidence which,
if believed, would establish not only that his trial counsel had substantially violated at least
one of a defense attorney's essential duties to his client but also that said violation was
prejudicial to the [petitioner].'" (Brackets sic.) [CITATION]. Therefore, in cases where the petitioner has brought forth evidence outside the record of
ineffective assistance of counsel, which we will assume Hall did for purpose of this court's
alternative analysis, a two-part inquiry applies to determine whether the petitioner is
entitled to a hearing. [CITATION]. That two-part inquiry provides (1)
"Has the petitioner introduced competent evidence of ineffective assistance that was not
included in the trial record?" and (2) "if so, does that evidence present substantive
grounds for relief; that is, if believed, would the newly presented evidence—together with
any evidence in the trial record—establish that counsel was ineffective?" [CITATION].
- 25 - Warren CA2023-06-047
{¶ 45} When applying this two-part inquiry to the case at bar, we must examine
Hall's postconviction ineffective assistance of counsel claim as it relates to the trial court's
decision to summarily dismiss his petition without a hearing "rather than as it affects a
decision on the merits of an appeal or on the merits of the postconviction petition." [CITATION],
2022-Ohio-4723 at ¶ 27. Thus, Hall's petition for postconviction relief "need not
definitively establish counsel's deficiency" or whether it prejudiced Hall. Id.; [CITATION],
6th Dist. Lucas No. L-20-1121, 2023-Ohio-294, ¶ 73 ("when the issue is whether
to grant a hearing on a postconviction petition, rather than as to the merits of the
postconviction petition,* * * the postconviction petition does not need to definitively
establish that trial counsel was deficient, or that appellant was prejudiced"). Instead, to
be entitled to a hearing, Hall's petition "must be sufficient on its face to raise an issue
whether [he] was deprived of the effective assistance of counsel, and [his] claim depends
on factual allegations that cannot be determined by examining the record from his trial."
Id., citing [CITATION], 42 Ohio St.2d at paragraph one of the syllabus; and [CITATION], 2 Ohio
St.3d at 114. "If the record on its face demonstrates that the petitioner is not entitled to
relief, then the trial court must dismiss the petition." [CITATION], 2023-Ohio-1249 at ¶ 11,
citing R.C. 2953.21(D) and (E)."
{¶ 46} To support his ineffective assistance of counsel claim, Hall relied upon his
and his wife B.H.'s affidavits, wherein they both averred that, while driving home following
the first day of trial, one of Hall's attorneys stated to them over the phone, "Wow! I wish
we would have found that," in reference to lack of digital penetration in the pre-September
3, 1996 definition of "sexual conduct" set forth in R.C. 2907.01(A). However, after a
thorough review of the record, the allegations set forth within Hall's and B.H.'s affidavits,
together with the evidence contained within the trial court record, do not present
substantive grounds that would entitle Hall to relief.
- 26 - Warren CA2023-06-047
{¶ 47} Rather, Hall's allegations set forth within his and his wife B.H.'s affidavits,
[SEGMENT 14]
together with the evidence contained within the record, merely establish what we already
knew, and one of the issues that this court specifically addressed as part of Hall's direct
appeal. That being, the complete lack of awareness on the part of Hall's trial counsel, the
state, and even the trial court, that the charges related Hall's alleged sexual abuse to A.Z.
set forth in Counts 1, 2, 3, 4, 5, 7, and 8 would need to be dismissed at the time when
A.Z. took the stand and testified in the manner that she did. It was only after A.Z.'s
testimony was complete that the trial court was able to conclusively determine that those
charges were, as a matter of law, not supported by sufficient evidence given the definition
of "sexual conduct" applicable to those charges did not include digital penetration.
Therefore, even when considering the entirety of the record from the trial court
proceedings, in conjunction with the affidavits from Hall and his wife, B.H., Hall did not
present any substantive grounds that would entitle him to relief.
{¶ 48} Regardless, even if we were to find Hall had presented an argument that
could be considered a substantive ground for relief that would ordinarily necessitate the
trial court holding a hearing on the matter, Hall has failed to establish that his trial counsel
provided him with ineffective assistance based on the allegations set forth within his and
his wife B.H.'s affidavits.
{¶ 49} "The standard by which we review claims of ineffective assistance of
counsel is well established." [CITATION]. To establish
ineffective assistance, a defendant must show (1) that counsel's performance was
deficient, and (2) that counsel's deficient performance prejudiced the defendant.
[CITATION]. Courts
determine deficient performance by asking whether counsel's conduct "fell below an
objective standard of reasonableness." Id. at 688. When making this determination, the
- 27 - Warren CA2023-06-047
reasonableness of counsel's conduct must be judged based on "the facts of the particular
case, viewed as of the time of counsel's conduct." Id. at 690. Only when counsel's errors
were "so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" has counsel engaged in deficient performance. Id.
at 687. To establish prejudice, "[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 694. This requires the errors to be so significant as to
"undermine confidence in the outcome." Id. "A defendant's failure to make a sufficient
showing of either prong of the Strickland inquiry is fatal to his claim of ineffective
assistance." [CITATION]
{¶ 50} Here, although couched in slightly different terms, Hall is essentially arguing
that his trial counsel's failure to discover before trial that the pre-September 3, 1996,
definition of "sexual conduct" set forth in R.C. 2907.01(A) did not include digital
penetration constituted deficient performance that fell below an objective standard of
reasonableness. To support this claim, Hall argues the underlying reason the jury found
him guilty of sexually abusing E.A. was due to the improper introduction of A.Z.'s
testimony into evidence. This is because, according to Hall, the introduction of A.Z.'s
testimony into evidence "changed the dynamic of the trial" and left the jury "under the
impression" that her testimony also "went to the allegations of rape against Hall." But,
even if we were to agree with Hall as it relates to his trial counsel's performance, deficient
or not, Hall cannot demonstrate that he suffered any resulting prejudice by his trial
counsel's failure to discover that it was the original 1974 definition of "sexual conduct"
that applied to Hall's alleged sexual abuse of A.Z. rather than the revised September 3,
1996 definition set forth in R.C. 2907.01(A).
{¶ 51} In this case, and what Hall seems to be forgetting, is that this court has
- 28 - Warren CA2023-06-047
already affirmed the trial court's decision to admit A.Z.'s testimony as "other-acts"
evidence under Evid.R. 404(B) as part of his direct appeal. [CITATION] at ¶
188-198. In so holding, this court initially rejected Hall's argument that it was error for the
trial court to admit A.Z.'s testimony as "other-acts" evidence under Evid.R. 404(B)
because the state did not offer A.Z.'s testimony to prove any one of the permitted
purposes set forth within that rule, i.e., motive, opportunity, intent, preparation, plan,
knowledge, identity, or the absence of mistake or accident. Id. at ¶ 194. In reaching this
decision, this court stated:
[A]lthough it is beyond dispute that the state was not offering
A.Z.'s testimony as other-acts evidence when A.Z. initially
took the stand, A.Z.'s trial testimony was undoubtably relevant
and could have been introduced by the state at trial for at least
two, if not more, of the permitted purposes set forth in Evid.R.
(B) had the charges related to Hall's alleged sexual abuse
of A.Z. never been brought. This includes, but is not
necessarily limited to, [showing] Hall's intent and the absence
of mistake or accident. "Other-acts evidence is admissible to
negate a defendant's claim of mistake or accident with respect
to the commission of the alleged crime; such evidence tends
'[t]o show, by similar acts or incidents, that the act in question
was not performed inadvertently, accidentally, involuntarily, or
without guilty knowledge.'" [CITATION], quoting McCormick, Evidence,
Section 190, 804 (4th Ed. 1994).
This is necessarily the case [here] given Hall's repeated
denials to both A.Z. and E.A. that he had done anything more
than what he admitted to within State's Exhibit 1, i.e., his
"confession" and "love letter to his daughters" that he provided
to police during the search of his home, wherein Hall
acknowledged that he had touched both A.Z. and E.A.
inappropriately when they were children. This is also the case
given the statement Hall made during one of the telephone
calls he had with A.Z. on April 18, 2019 claiming he did not
remember doing any of the things that A.Z. and E.A. were
alleging, but that if he "was ever wasted and accidentally did
something that is one thing." This is in addition to Hall's
statements during that same April 18, 2019 telephone call, as
well as Hall's May 1, 2019 telephone call with E.A., wherein
Hall claimed that maybe he did not remember anything that
A.Z. and E.A. were alleging because he had been
- 29 - Warren CA2023-06-047
sleepwalking or because he might be a paranoid
schizophrenic with split personalities.
Hall, therefore, did not merely deny A.Z.'s and E.A.'s
allegations ever occurred. Hall also defended against A.Z.'s
and E.A.'s allegations by claiming if something had happened
that it was accidental, inadvertent, or unintended because he
was "wasted," sleepwalking, or possibly suffering from split
personalities. Accordingly, because Hall placed his intent at
issue by claiming his actions were accidental, innocent, or
without his knowledge, A.Z.'s testimony was properly
admissible as other-acts evidence under Evid.R. 404(B) to
show, at the very least, intent and the absence of mistake or
accident. See, e.g., [CITATION] (finding "other-
acts evidence related to [one child victim] was properly
admissible to show intent and absence of mistake" at trial
where appellant was being tried for raping another child victim
and defending against the charge by claiming the rape never
happened, but "if it was happening in the middle of the night,
he was not aware of it"). Hall's claim otherwise lacks merit.
Id., 2022-Ohio-1147 at ¶ 194-196.
{¶ 52} This court also rejected Hall's argument that it was error for the trial court to
admit A.Z.'s testimony as "other-acts" evidence under Evid.R. 404(B) because, "without
limiting the scope" of A.Z.'s testimony prior to her taking the stand, A.Z.'s testimony was
highly prejudicial, thereby requiring its exclusion under Evid.R. 403(A). Id. at ¶ 197. In
so holding, this court stated:
Without question, A.Z.'s testimony was prejudicial. All
evidence presented by the prosecutor is prejudicial. [CITATION]. But not
all evidence unfairly prejudices a defendant. [CITATION].
"Under Evid.R. 403(A), only evidence that is unfairly
prejudicial is excludable." (Emphasis sic.) [CITATION].
"Unfairly prejudicial evidence is not merely unfavorable
evidence; rather, it is evidence, which might result in an
improper bias for a jury decision." [CITATION].
[SEGMENT 15]
"Weighing the probative value of the evidence against its
- 30 - Warren CA2023-06-047
prejudicial effect is a highly fact-specific and context-driven
analysis." [CITATION] at ¶ 30. Therefore,
despite Hall's claims, when considering the trial court found it
proper to admit A.Z.'s testimony as other-acts evidence, the
trial court clearly determined that the probative value of A.Z.'s
testimony did not substantially outweigh the danger of unfair
prejudice to Hall, thereby requiring its exclusion under Evid.R.
(A). See Evid.R. 403(A) ("[a]lthough relevant, evidence is
not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of
the issues, or of misleading the jury"). The trial court did not
abuse its discretion in reaching this decision. That is to say,
the trial court's decision finding the probative value of A.Z.'s
testimony did not substantially outweigh the danger of unfair
prejudice to Hall was not unreasonable, arbitrary, or
unconscionable. Hall's claim otherwise again lacks merit.
Accordingly, for the reasons outlined above, Hall's second
assignment of error lacks merit and is overruled.
[CITATION] at ¶ 197-198.
{¶ 53} This court also affirmed the trial court's instructions it provided to the jury
regarding the manner in which it could consider A.Z.'s testimony as "other-acts" evidence
under Evid.R. 404(B) when determining whether Hall had sexually abused E.A. In so
holding, this court initially rejected Hall's argument that the trial court erred by failing to
give the jury a limiting instruction prior to A.Z. taking the stand and testifying to the "other-
acts" evidence discussed more fully above. In reaching this decision, this court stated:
[A]s the record indicates, the trial court was unaware that the
charges related Hall's alleged sexual abuse to A.Z., Counts 1,
, 3, 4, 5, 7, and 8, would need to be dismissed at the time
when A.Z. took the stand and testified in the manner that she
did. Nobody did. It was only after A.Z.'s testimony was
complete that the trial court was able to conclusively
determine that those charges were, as a matter of law, not
supported by sufficient evidence given the definition of "sexual
conduct" applicable to those charges did not include digital
penetration. Therefore, because it was only after A.Z. testified
that anybody — including Hall — knew the charges related to
A.Z. would need to be dismissed, the trial court had no way of
knowing it would need provide the jury with a limiting
instruction regarding A.Z.'s testimony before A.Z. ever took
the stand. Accordingly, Hall's claim alleging the trial court
erred by failing to give the jury a limiting instruction regarding
- 31 - Warren CA2023-06-047
other-acts evidence prior to A.Z. taking the stand lacks merit.
[CITATION] at ¶ 202.
{¶ 54} This court also rejected Hall's argument that the instructions the trial court
provided to the jury regarding the A.Z.'s testimony was overbroad, confusing, and
prejudicial. This included Hall's challenge to the trial court's instruction it provided to the
jury after the state formally rested its case-in-chief, which provided:
The Court has withdrawn from your consideration Counts 1,
, 3, 4, 5, 7 and 8. You are not to speculate as to why the
Court has withdrawn them. Evidence relating to those counts
was received about the commission of other acts, other than
the remaining offenses with which the Defendant is charged
in this trial, specifically the allegations made by [A.Z.], that
evidence was allowed for a limited purpose. It was not
received and you may not consider it to prove the character
of the Defendant in order to show that he acted in conformity
with that character in this case with the remaining charges.
If you find at the close of the case that the evidence of the
other acts is true and that the Defendant committed them, you
may consider that evidence only for the purpose of deciding
whether it tends to prove the Defendant's motive, opportunity,
intent, preparation, plan, knowledge, identity or absence of
mistake or accident.
[CITATION], at ¶ 203.
{¶ 55} This court further rejected Hall's challenge to the instruction the trial court
provided to the jury regarding A.Z.'s testimony as part of its final jury instructions, which,
like the trial court's earlier instruction set forth above, provided:
Evidence was received about the commission of other acts,
other than the offense with which the Defendant is not
charged in this trial. Specifically, I am referring to the
allegations of [A.Z.]
That evidence was received only for a limited purpose. It was
not received and you may not consider it to prove the
character of the Defendant in order to show that he acted in
conformity with that character in this case regarding the
remaining counts involving [E.A.]
- 32 - Warren CA2023-06-047
If you find that the evidence of other acts as alleged by [A.Z.]
as true, and that the Defendant committed them, you may
consider that evidence only for the purposes of deciding
whether it proves the Defendant's motive, opportunity, intent
or purpose, absence of mistake or accident, or preparation or
plan to commit the offenses charged in this trial. That
evidence cannot be considered for any other purpose.
[CITATION] at ¶ 204.
{¶ 56} Additionally, citing the Ohio Supreme Court's decision in [CITATION],
we rejected Hall's argument that the instructions the trial court provided to the
jury regarding A.Z.'s testimony were clearly prejudicial to him. In rejecting Hall's
argument, this court determined that, unfortunately, the trial court's instructions regarding
A.Z.'s testimony were not tailored to the facts of the case as required by [CITATION] at ¶ 70
("when a court issues a limiting instruction with respect to other-acts evidence, the
instruction should be tailored to the facts of the case"). However, when taken in context,
this court determined that portion of the Ohio Supreme Court's decision in [CITATION] was
undoubtedly dicta and clearly intended to apply prospectively to jury trials coming after
that case was released. In so holding, this court noted:
The Ohio Supreme Court specifically states as much in the
next sentence noting that, "[g]oing forward, courts should
explain, in plain language, the purposes for which the other
acts may and may not be considered." (Emphasis added.) Id.
at ¶ 70. Therefore, because the Ohio Supreme Court's
decision in [CITATION] was released on September 22, 2020,
which was nearly a full month after Hall's jury trial concluded,
the Ohio Supreme Court's commentary in [CITATION] that, going
forward, trial courts should use plain language to explain the
purpose(s) that other-acts evidence may and may not be
considered, could not have been applied by the trial court to
the case at bar. The trial court applied the law as it existed at
the time, which is all that the trial court could be expected to
do.
[CITATION] at ¶ 206
{¶ 57} In reaching this decision, this court further noted that, although Hall did
- 33 - Warren CA2023-06-047
initially state that it was his belief that the trial court's final instruction to the jury "needs to
be tailored to what the State intends to offer that for," Hall did not object to the trial court's
instruction on that basis. Hall instead stated, "that works" regarding the instruction the
trial court provided to the jury after the state formally rested its case-in-chief, and "[n]o
objection, Your Honor," when asked if he had any objection to the trial court's instruction
it provided to the jury as part of its final jury instructions. Id. at ¶ 207. Therefore, this
court determined that, just like the appellant in [CITATION], because Hall did not object to
the trial court's challenged instructions, no plain error occurred in this case. Id., citing
[CITATION] at ¶ 72.
{¶ 58} Based on the foregoing, even if this court were to find Hall's trial counsel's
performance was deficient, because this court has already determined that the trial court
did not err by admitting A.Z.'s testimony as "other-acts" evidence under Evid.R. 4040(B),
Hall cannot establish that he was in any way prejudiced by his trial counsel's failure to
discover before trial that digital penetration was not included in the pre-September 3, 1996
definition of "sexual conduct" set forth in R.C. 2907.01(A). This is because, even had
Hall's trial counsel made that discovery, the jury would still have heard A.Z.'s testimony
[SEGMENT 16]
and been permitted to consider it for at least two, if not more, of the permitted purposes
set forth in Evid.R. 404(B) when determining whether Hall had sexually abused E.A. had
the charges related to Hall's alleged sexual abuse of A.Z. never been brought. As noted
above, this includes, but is not necessarily limited to, showing Hall's intent and the
absence of mistake or accident with respect to Hall's sexual abuse of E.A.
Conclusion
{¶ 59} Therefore, because Hall cannot demonstrate that he suffered any resulting
prejudice, the record on its face demonstrates that Hall is not entitled to relief, thereby
mandating the trial court to dismiss Hall's petition for postconviction relief without a
- 34 - Warren CA2023-06-047
hearing. See [CITATION].
Accordingly, whether it be based upon the doctrine of res judicata, or on this alternative
ground, because the trial court did not err by summarily dismissing Hall's petition for
postconviction relief without a hearing, Hall's single assignment of error lacks merit and
is overruled.
{¶ 60} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
- 35 - [CONTENT PROTECTED]
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-07-083
: OPINION
- vs -
/18/2024
:
CAMERON S. KYLES, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR 2019 10 1671; CR 2019 06 0862
Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.
Yavitch & Palmer Co., L.P.A., and Stephen E. Palmer, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Cameron S. Kyles, appeals the decision of the Butler County
Court of Common Pleas summarily denying his petition for postconviction relief without a
hearing following his convictions for a multitude of serious felony offenses that included,
among others, participating in a criminal gang and aggravated murder. For the reasons Butler CA2023-07-083
outlined below, we affirm the trial court's decision.
Facts and Procedural History
{¶ 2} On June 26, 2019, the Butler County Grand Jury returned a single-count
indictment charging Kyles with one count of participating in a criminal gang. This
indictment was prosecuted under Case No. CR2019-06-0862. Several months later, on
October 18, 2019, the Butler County Grand Jury returned an additional eleven-count
indictment charging Kyles with two counts each of aggravated murder, murder,
aggravated robbery, aggravated burglary, and felonious assault, all of which were
accompanied by firearm and gang specifications, and one count of having weapons while
under disability. This indictment was prosecuted under Case No. CR2019-10-1671. The
two cases were later consolidated and, after Kyles was found competent to stand trial
and his motion to suppress the statements he made to police was denied, proceeded to
a five-day jury trial that began on August 23, 2021.
{¶ 3} On August 27, 2021, the jury returned guilty verdicts on all counts and
specifications set forth within both Case Nos. CR2019-06-0862 and CR2019-10-1671.
On October 19, 2021, the trial court held a sentencing hearing where it sentenced Kyles
to serve an aggregate, indefinite term of life imprisonment with the possibility of parole
after 50 to 53 years, less 733 days of jail-time credit.1 Kyles directly appealed his
conviction to this court and this court affirmed Kyles' conviction in all respects on February
21, 2023. [CITATION] Kyles then appealed this court's decision to the Ohio Supreme Court,
which declined review on June 20, 2023. [CITATION]
1. There is some confusion in the record as it relates to Kyles' sentence being either 46 to 48 years in
prison or 50 to 53 years in prison. However, setting aside that confusion, there is no dispute that Kyles will
first become eligible for parole on September 10, 2068.
Butler CA2023-07-083
Ohio-1979.
{¶ 4} In denying Kyles' appeal, this court overruled Kyles' argument alleging the
trial court erred by denying his motion to suppress the statements he made to police.
More specifically, this court found no merit to Kyles' argument that his Miranda rights
waiver provided to the detective who interviewed him, Detective Stephen Winters, was
not knowingly, intelligently, and voluntarily made. [CITATION] This
court also overruled Kyles' argument that his statements to police should have been
suppressed because Detective Winters improperly continued questioning him after he
asserted his Fifth Amendment right to counsel during Detective Winter's first interview
with him. [CITATION] This court further rejected Kyles' claim that he received
ineffective assistance of counsel upon finding that, even if we were to assume his trial
counsel's performance was deficient, Kyles could not show any resulting prejudice
therefrom. [CITATION] This is in addition to this court noting on three separate occasions
that there was "overwhelming evidence" to establish Kyles' guilt of all counts and
specifications for which he was tried and convicted. [CITATION]
{¶ 5} On February 6, 2023, prior to this court issuing our decision affirming Kyles'
conviction on direct appeal, Kyles filed a petition for postconviction relief. Kyles filed his
petition in accordance with R.C. 2953.21(A)(1)(a)(i). Pursuant to that statute, any person
who has been convicted of a criminal offense, and who claims that there was such a
denial or infringement of the person's rights as to render the judgment "void or voidable"
under the Ohio Constitution or the United States Constitution, "may file a petition in the
court that imposed sentence, stating the grounds for relief relied upon, and asking the
court to vacate or set aside the judgment or sentence or to grant other appropriate relief[.]"
To support his petition, Kyles argued that his trial counsel provided him with ineffective
assistance, thereby depriving him of a fair trial in violation of his "Right to Counsel and
Butler CA2023-07-083
Due Process of Law" as guaranteed to him by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and "comparable provisions" of the Ohio
Constitution.
{¶ 6} Within his petition, Kyles stated three grounds for relief, all three of which
were based on his trial counsel's alleged ineffective assistance. Those three stated
grounds for relief were as follows:2
(1) ineffective assistance of counsel based upon his trial
counsel's purported "failure to conduct and/or request [a]
second competency evaluation" to determine whether he had
the intellectual capacity to stand trial;
(2) ineffective assistance of counsel based upon his trial
counsel's supposed failure to consider his "significant mental
defect" and "obtain a psychological assessment" prior to the
hearing on his motion to suppress to determine whether he
had the intellectual capacity to make a knowing, intelligent,
and voluntary waiver of his Miranda rights; and
(3) ineffective assistance of counsel based upon his trial
counsel's failure to argue, as part of his motion to suppress,
that his Sixth Amendment right to counsel had been violated.
{¶ 7} To support his first and second stated grounds for relief, Kyles attached to
his postconviction relief petition an affidavit and psychological evaluation report from Dr.
John L. Tilley, a clinical and forensic psychologist based out of Columbus, Ohio. Within
those two documents, Dr. Tilley opined that Kyles has a significant "intellectual disability"
that "likely impaired" his ability to provide a knowing and intelligent waiver of his Miranda
rights. Dr. Tilley noted that this included Kyles' low IQ score of 57 and limited reading
comprehension, which Dr. Tilley equated to that of a kindergartener. Dr. Tilley also opined
that, had he been consulted prior to Kyles' trial to conduct a "second opinion" on Kyles'
competency to stand trial, he "likely would have opined" that Kyles was not competent to
2. We have renumbered the three stated grounds raised by Kyles within his petition for postconviction relief
for organizational and readability purposes.
Butler CA2023-07-083
stand trial, and generated a report "highlighting the extent of Mr. Kyles' intellectual
disability, his very low functioning in multiple areas relevant to his adjudicative
competence, and the impairments in his capacities to understand the nature and objective
of the proceedings and assist in his defense." This is in addition to Dr. Tilley stating that,
[SEGMENT 17]
"[w]hile it is recognized that his competence to stand trial was assessed twice in 2019,"
and that "the Court adjudicated him competent to stand trial in accordance with both
evaluations," it was nevertheless his opinion that "an analysis of the data and resulted
from the present evaluation suggest that, the rulings from the Court notwithstanding, Mr.
Kyles' competence to stand trial may have been impaired," thereby providing "likely
opportunities⎯and perhaps even cause⎯for requesting second opinions in both
matters."
{¶ 8} To support his third stated ground for relief, Kyles attached to his
postconviction relief petition the municipal court docket statement and related records that
ultimately resulted in the Butler County Grand Jury issuing the 11-count indictment
against him in Case No. CR2019-10-1671. Based upon those documents, Kyles argued
that by Detective Winters interviewing him after he had been appointed counsel, "the
police violated his Sixth Amendment Right to Counsel," a violation "independent of the
validity of his Miranda waiver" as set forth in his second stated ground for relief. To
support this argument, Kyles set forth the following timeline setting forth the various
interviews Detective Winters had with him on October 13 and 14, 2019:
October 13, 2019, 11:06 a.m. – First interview (Winters)
October 13, 2019, 12:35 p.m. – Email from Dep. Smith to
Winters
October 14, 2019, 8:30 a.m. – Kyles in Middletown Municipal
Court with Counsel
October 14, 2019, 9:30 a.m. – Second Interview (Winters)
Butler CA2023-07-083
October 14, 2019 9:30 a.m. – Second Interview (Winters and
Hughs)
{¶ 9} Based upon this "critical" timeline, Kyles argued that, even assuming his
request to speak with Detective Winters after his first interview with Detective Winters
was knowingly and intelligently made, which Kyles claimed it was not in accordance with
Dr. Tilley's report, "the instigation of formal adversary proceedings triggered the Sixth
Amendment in addition to the Fifth Amendment Miranda concerns. The police were thus
not permitted to question Kyles without his attorney present." Therefore, according to
Kyles, his trial counsel was ineffective for failing "to raise this Sixth Amendment tissue
during the suppression hearing," something which Kyles argued within his petition was
"objectively unreasonable, as standard norms of practice mandate trial counsel raise and
litigate viable constitutional suppression issues."
{¶ 10} On March 2, 2023, the state filed a motion to dismiss Kyles' petition for
postconviction relief based upon the doctrines of res judicata and the law of the case.
The state additionally argued that, even if res judicata and the law of the case doctrines
did not apply, Kyles' petition could be denied on the merits because it failed to set forth
sufficient operative facts to establish grounds for relief. A few months later, on June 20,
2023, the trial court issued a decision granting the state's motion to dismiss, thereby
summarily denying Kyles' petition for postconviction relief without a hearing. In so doing,
the trial court initially noted that Kyles had "argued many of the same issues" in support
of his postconviction relief petition that he had raised with this court as part of his direct
appeal.
{¶ 11} Given the similarity between Kyles' claims, the trial court determined that,
in as much as Kyles was seeking to relitigate those same issues, particularly as it related
to the question of whether Kyles had made a knowing, intelligent, and voluntary waiver of
Butler CA2023-07-083
his Miranda rights, the doctrine of res judicata "would apply to bar granting a post-
conviction petition." In reaching this decision, the trial court noted that "[CITATION] not only
could have, but did, argue the same questions before the appellate court, a body that
rejected each and every contention regarding his competency and the questions of due
process." The trial court also noted that, given that this court had already ruled on many
of the same issues that [CITATION] had raised as grounds for relief within his postconviction
relief petition, the law of the case doctrine forbade it from "refus[ing] to abide" by this
court's decision as it related to those same issues. In so holding, the trial court determined
that:
Nothing presented in the latest filings overcomes the definitive
ruling by the 12th District that [CITATION] knowingly, intelligently
and voluntarily waived his Miranda rights. Likewise, nothing
in the filings overcomes the requirements of [CITATION].
{¶ 12} The trial court did not stop there, however. Rather, "out [of] an
overabundance of caution," the trial court also reviewed [CITATION]' petition on the merits and
determined that [CITATION] had "fail[ed] to establish substantive grounds on any of his claims
for relief in his petition and therefore a hearing is not needed." In so doing, the trial court
determined that [CITATION]' claims that his trial counsel had "failed to fully investigate his
alleged mental deficiency, failed to employ an expert witness, and failed to allow the
expert to testify at his suppression hearing on the issue of understanding his [Miranda]
rights," were all "contrary to the record." In reaching this decision, the trial court initially
stated with respect to [CITATION]' ineffective assistance of counsel claims:
The defendant relies solely upon a review and report of John
L. Tilley, (Tilley), a psychologist retained by the defense, who
posits [CITATION]' intellectual ability precludes him from
understanding the ramifications of his decision and
competency to stand trial.
Butler CA2023-07-083
According to the record, Tilley conducted no face-to-face, or
other interviews of Kyles, forming his opinions solely on the
basis of the psychological reports contained in the record.3
Tilley, an explicitly selected defense expert, opines the
defendant, "may have been impaired" and was "likely
impaired" because of his poor reading skills. These
conclusory claims summarily and conveniently dismiss the
findings of two other experts that Kyles was a savvy 18-year-
old. Even if Kyles was, as Tilley claims, weak in the ways of
the academic world, the defendant was shrewd enough to
recognize his precarious predicament and open negotiations
with the enemy in an effort to improve his indefensible fortress
of culpability.
{¶ 13} Continuing, the trial court then stated:
Kyles's petition for post-conviction relief further fails as to the
claimed ineffective assistance as he does not delineate,
beyond mere speculation and conclusory statements, how
counsel's performance at trial fell below a reasonable
standard or prejudiced him at trial. In fact, the claims are
diametrically opposite of reality as evidenced by the recorded
proceedings where the defense mounted a vigorous assault
of dysfunctional deviance upon the prosecution. Defense
counsel's efforts penetrated the prosecution's labors so
effectively that The State requested, and received, a specific
jury instruction on the question of diminished capacity that
reads:
A contention of diminished capacity means that although the
accused was not insane, due to emotional distress, physical
condition or other factors he could not fully comprehend the
nature of the criminal act he is accused of committing.
Diminished capacity is not a recognized defense in Ohio. You
should disregard any evidence presented during trial used to
support a claim of diminished capacity. You may only
consider evidence of mental capacity if it is demonstrated that
it is being used for some purpose other than asserting the
defense of diminished capacity.
{¶ 14} The trial court additionally stated that, in this case, Kyles' trial counsel
"specifically addressed questions of 'diminished capacity' throughout the trial, fought for,
3. We note that the record does not support this finding. The record instead indicates that Dr. Tilley
conducted two in-person interviews with Kyles, the first on August 22, 2022 while Kyles was imprisoned at
the Lebanon Correctional Institution in Warren County, Ohio for approximately two hours, with the second
interview taking place on January 19, 2023 at the Ross Correctional Institution in Chillicothe, Ohio for an
additional 90 minutes.
Butler CA2023-07-083
and received, two independent 'in-person evaluations' by trained experts, and made the
tactical decision not pursue live testimony as, from a purely speculative point of view, it
may have done more harm to his client's defense than good." Turning then to Kyles' last
remaining ineffective assistance of counsel claim, the trial court stated:
The defense argues that once Kyles invoked his Fifth
Amendment right in Middletown Municipal Court, the police
were forever barred from speaking with the defendant without
counsel. This argument is specious at best.
The Supreme Court of the United States held in [CITATION] that, as is
the case here, a defendant can waive both his Fifth and Sixth
Amendments rights even after invocation. Specifically, since
Kyles initiated the subsequent request to speak with the
police, he forfeited both upon being apprised of his rights
pursuant to Miranda.
[SEGMENT 18]
{¶ 15} The trial court thereafter concluded by finding Kyles' petition for
postconviction relief did nothing more than "construct[] a house of straw" and, in light of
the overwhelming evidence of Kyles' guilt, "the whirlwind of law and reason require that
[Kyles] reap the wages of justice." The trial court noted that this evidence included, even
when taking Kyles' statements to police out of consideration, "evidence from his GPS
tracker, other witnesses and the victim's blood on the money recovered from him," all of
which the trial court found "would be sufficient for a reasonable jury to convict."
Kyles' Appeal and Two Assignments of Error for Review
{¶ 16} On July 19, 2023, Kyles filed a timely notice of appeal from the trial court's
decision. Following briefing by both parties, oral argument was held before this court on
February 12, 2024. Kyles' appeal now properly before this court for decision, Kyles has
raised two assignments of error for review. Those two assignments of error being:
Assignment of Error No. 1:
{¶ 17} THE TRIAL COURT ABUSED ITS DISCRETION, APPLIED INCORRECT
Butler CA2023-07-083
LEGAL STANDARDS, AND ERRONEOUSLY DENIED KYLES' PETITION FOR POST-
CONVICTION RELIEF WITHOUT CONDUCTING A HEARING IN VIOLATION OF R.C.
2953.21(D) AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ERRORED BY DENYING KYLES' PETITION FOR
POST-CONVICTION RELIEF ON THE MERITS WITHOUT A HEARING, THEREBY
DEPRIVING HIM OF HIS RIGHT TO DUE PROCESS OF LAW AND HIS RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
{¶ 19} In both of his assignments of error, Kyles argues the trial court erred by
summarily denying his petition for postconviction relief without holding a hearing; the first
assignment of error challenges the trial court's application of the doctrines of res judicata
and law of the case and the second assignment of error challenges the trial court's
decision, albeit in the alternative, and "out [of] an overabundance of caution," to deny his
postconviction relief petition on the merits. To support his arguments, Kyles has raised
four issues for this court's consideration. After setting forth the appropriate standard of
review, we will address each of those four issues in turn.
Petition for Postconviction Relief Standard of Review
{¶ 20} "In Ohio, persons convicted of criminal offenses may petition a trial court for
postconviction relief if they fit into one of four categories." [CITATION]. Those four categories
are set forth in R.C. 2953.21(A)(1)(a)(i) through (iv). Relevant here is the first category,
- 10 - Butler CA2023-07-083
which "permits a person convicted of a criminal offense to petition the trial court to vacate
his conviction when he believes 'there was such a denial or infringement of [his] rights as
to render the judgment void or voidable under the Ohio Constitution or the Constitution of
the United States.'" [CITATION], quoting R.C.
2953.21(A)(1)(a)(i). When a criminal defendant challenges his conviction through a
postconviction relief petition, the trial court may hold an evidentiary hearing on the issues
raised by the petition. [CITATION], citing R.C. 2953.21(D) thru (F). "An evidentiary hearing is not
automatically guaranteed each time a defendant makes a petition for postconviction
relief," however. [CITATION]. Rather, "[t]he trial court, before granting a hearing on a
petition filed under R.C. 2953.21(A)(1)(a)(i), is required to 'determine whether there are
substantive grounds for relief.'" [CITATION], quoting R.C. 2953.21(D). "A petition presents
substantive grounds for relief when it contains allegations that are sufficient to state a
constitutional claim and the files and records of the case do not affirmatively disprove the
claim." [CITATION], citing [CITATION]; and R.C. 2953.21(F).
{¶ 21} "In determining whether the petition states a substantive ground for relief,
the trial court must consider the entirety of the record from the trial proceedings as well
as any evidence filed by the parties in postconviction proceedings." [CITATION], citing R.C. 2953.21(D). "If the record on its face
demonstrates that the petitioner is not entitled to relief, then the trial court must dismiss
the petition." Id., citing R.C. 2953.21(D) and (E). That is to say, "'[a] trial court properly
denies a defendant's petition for postconviction relief without holding an evidentiary
hearing where the petition, the supporting affidavits, the documentary evidence, the files,
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and the records do not demonstrate that petitioner set forth sufficient operative facts to
establish substantive grounds for relief.'" [CITATION], quoting [CITATION],
paragraph two of the syllabus. However, "[i]f the record does not on its face disprove the
petitioner's claim, then the court is required to 'proceed to a prompt hearing on the
issues.'" Bunch, quoting R.C. 2953.21(F); see also [CITATION],
¶ 28 ("[t]he defendant is entitled to an evidentiary hearing when the
allegations in the motion demonstrate substantive grounds for relief").
{¶ 22} "A trial court's decision to summarily deny a postconviction petition without
holding an evidentiary hearing will not be reversed absent an abuse of discretion." [CITATION]. "The standard
is deferential, requiring the trial court to engage in more than mere error in law or
judgment." [CITATION]. To that end, for this court to find an abuse of discretion, "we must find that the trial court's
ruling was unreasonable, arbitrary, or unconscionable." [CITATION]. "A decision is unreasonable where a
sound reasoning process does not support it." [CITATION]. "[A]n 'arbitrary' decision is one made 'without
consideration of or regard for facts [or] circumstances.'" [CITATION], quoting Black's Law Dictionary 125 (10th Ed.2014). "An
unconscionable decision may be defined as one that affronts the sense of justice,
decency, or reasonableness." [CITATION].
Kyles' First Issue and Analysis: The Misapplication of the Doctrine of Res Judicata
{¶ 23} In his first issue presented for review, Kyles argues the trial court erred by
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misapplying the doctrine of res judicata when overruling his petition for postconviction
relief without a hearing. This is because, according to Kyles, the trial court "incorrectly
concluded" that res judicata applied given his postconviction relief petition argued the
same ineffective assistance of counsel claim that this court had already overruled when
denying his direct appeal. That claim being Kyles' argument that his trial counsel provided
him with ineffective assistance by failing to consult with Dr. Tilley, or some other expert
who would have provided him with substantially similar findings to that of Dr. Tilley, as it
relates to whether he had the intellectual capacity to stand trial and to make a knowing,
intelligent, and voluntary waiver of his Miranda rights. We agree the trial court did so err.
However, as explained more fully below, any such error the trial court made by
misapplying the doctrine of res judicata to the case at bar was harmless.
{¶ 24} "It is well established that a trial court may dismiss a postconviction relief
petition on the basis of the doctrine of res judicata." [CITATION]. "The doctrine of res judicata precludes a
convicted defendant 'from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or any claimed lack of due process that was raised or could
have been raised' at trial or on direct appeal." [CITATION], quoting [CITATION]. "So a court reviewing a
postconviction-relief petition generally may not decide a claim that could have been
presented at trial and raised on direct appeal." [CITATION], citing [CITATION]. There's a twist, however, when it comes
to petitions for postconviction relief that are based on the alleged ineffective assistance
of counsel. Id.
{¶ 25} In those cases, "res judicata does not bar claims for postconviction relief,
inter alia, when a petitioner 'must rely on evidence outside the trial record to establish his
- 13 - Butler CA2023-07-083
[SEGMENT 19]
claim for relief.'" [CITATION]
879, ¶ 20, quoting Blanton, citing [CITATION]
Therefore, a petitioner who presents a claim of ineffective assistance of counsel, and who
demonstrates through evidence outside the trial record that their claim either was not, or
could not have been, fairly adjudicated in a direct appeal, that petitioner is provided "a
second opportunity to litigate the claim." (Emphasis sic.) Blanton at ¶ 38. Accordingly,
where a defendant petitioning for postconviction relief has brought forth evidence outside
the record of ineffective assistance of counsel, that showing is sufficient to, at the very
least, "'avoid dismissal on the basis of res judicata.'" Id. at ¶ 31, quoting [CITATION]
{¶ 26} In this case, Kyles brought forth evidence outside the record of ineffective
assistance of counsel to avoid the entirety of his petition for postconviction relief being
dismissed on the basis of res judicata. That being Dr. Tilley's affidavit and psychological
evaluation indicating Kyles lacked the intellectual capacity to both stand trial and to make
a knowing, intelligent, and voluntary waiver of his Miranda rights. Therefore, given the
principles set forth above, we must necessarily agree with Kyles' argument that the trial
court erred by misapplying the doctrine of res judicata to the case at bar to dismiss the
entirety of Kyles' petition for postconviction relief. The error, however, was harmless.
{¶ 27} "'[A]n error is harmless where there is no reasonable possibility that it
contributed to an accused's conviction, such as where there is overwhelming evidence of
the accused's guilt or some other indicia that the error did not contribute to the conviction.'"
[CITATION]
State v. Cox, [CITATION]
Such is the
case here. This is because, contrary to Kyles' claim, "merely providing evidence outside
the record is not sufficient to entitle a petitioner to a hearing." [CITATION]
at ¶ 21. That is to say, "simply overcoming the res judicata bar through the introduction
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of evidence outside the record is not sufficient," in and of itself, to necessitate the trial
court holding a hearing on the matter. [CITATION] at ¶ 31.
{¶ 28} Rather, to be entitled to a hearing, "a petitioner 'must proffer evidence which,
if believed, would establish not only that his trial counsel had substantially violated at least
one of a defense attorney's essential duties to his client but also that said violation was
prejudicial to the [petitioner].'" (Brackets sic.) Id., quoting [CITATION]. "If
the record on its face demonstrates that the petitioner is not entitled to relief, then the trial
court must dismiss the petition." [CITATION], ¶
24, citing R.C. 2953.21(D) and (E). "If the record does not on its face disprove the
petitioner's claim, then the court is required to 'proceed to a prompt hearing on the
issues.'" Id., quoting R.C. 2953.21(F). Thus, in cases where the defendant has brought
forth evidence outside the record of ineffective assistance of counsel to avoid dismissal
on the basis of res judicata, such as the case here, a two-part inquiry applies to determine
whether the defendant is entitled to a hearing on the matter. [CITATION] at
¶ 17. That two-part inquiry provides the following: (1) "Has the petitioner introduced
competent evidence of ineffective assistance that was not included in the trial record?"
and (2) "if so, does that evidence present substantive grounds for relief; that is, if believed,
would the newly presented evidence—together with any evidence in the trial record—
establish that counsel was ineffective?" [CITATION] at ¶ 33. It is this second prong where
Kyles' claim fails.
{¶ 29} To support this portion of his ineffective assistance of counsel claim, Kyles
relies on the affidavit and psychological evaluation report provided by Dr. Tilley. However,
after a thorough review of the record, we find the opinions offered by Dr. Tilley within his
affidavit and psychological evaluation report, together with the evidence contained within
the trial court record, do not present substantive grounds that would entitle Kyles to relief.
- 15 - Butler CA2023-07-083
That is to say, even when considering the entirety of the record from the trial court
proceedings, in conjunction with Dr. Tilley's affidavit and psychological evaluation report
attached to Kyles' petition for postconviction relief, Kyles cannot establish that his trial
counsel provided him with ineffective assistance either by (1) failing "to conduct and/or
request [a] second competency evaluation" to determine whether he had the intellectual
capacity to stand trial; or by (2) failing to consider his "significant mental defect" and
"obtain a psychological assessment" prior to the hearing on his motion to suppress to
determine whether he had the intellectual capacity to make a knowing, intelligent, and
voluntary waiver of his Miranda rights as alleged. Therefore, for these reasons, and for
the reasons set forth more fully below, Kyles' first argument lacks merit.
{¶ 30} "The standard by which we review claims of ineffective assistance of
counsel is well established." [CITATION]. To establish
ineffective assistance, a defendant must show (1) that counsel's performance was
deficient, and (2) that counsel's deficient performance prejudiced the defendant.
[CITATION]. Courts
determine deficient performance by asking whether counsel's conduct "fell below an
objective standard of reasonableness." Id. at 688. When making this determination, the
reasonableness of counsel's conduct must be judged based on "the facts of the particular
case, viewed as of the time of counsel's conduct." Id. at 690. Only when counsel's errors
were "so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" has counsel engaged in deficient performance. Id.
at 687. To establish prejudice, "[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 694. This requires the errors to be so significant as to
"undermine confidence in the outcome." Id. "A defendant's failure to make a sufficient
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showing of either prong of the Strickland inquiry is fatal to his claim of ineffective
assistance." [CITATION], 171 Ohio St.3d 353, 2022-Ohio-4259, ¶ 31, citing id. at 697.
{¶ 31} Here, Kyles argues that his trial counsel's failure to consult with Dr. Tilley, or
some other expert who would have provided him with substantially similar findings to that
of Dr. Tilley, constituted deficient performance under the first prong of the Strickland
inquiry. However, although Kyles' petition for postconviction relief did not need to
"definitively establish" either his trial counsel counsel's deficiency or whether he was
prejudiced by it to warrant the trial court holding a hearing on the matter, [CITATION], the
failure of Kyles' trial counsel to seek out what would have amounted to a third competency
evaluation, not a second like Kyles suggests, does not fall anywhere near what this court
would consider deficient performance when viewed against an objective standard of
reasonableness.
{¶ 32} We instead agree with the trial court's finding that, "as to the claimed
ineffective assistance," Kyles "does not delineate, beyond mere speculation and
conclusory statements, how counsel's performance at trial fell below a reasonable
standard or prejudiced him at trial." This includes Kyles' claim that, if his trial counsel had
provided the trial court with a psychological evaluation report like that of Dr. Tilley's, he
never would have been deemed competent to stand trial, thus causing a delay in the
proceedings "unless and until [his] competency was restored" in accordance with R.C.
2945.37(G).4 "Such speculation is insufficient to establish ineffective assistance." [CITATION], 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 217; see, e.g., [CITATION]
4. Pursuant to R.C. 2945.37(G), a defendant is incompetent to stand trial if he or she "is incapable of
understanding the nature and objective of the proceedings against the defendant or of assisting in the
defendant's defense * * *." If, after a hearing, the trial court finds the defendant incompetent to stand trial,
the trial court "shall enter an order authorized by section 2945.38 of the Revised Code." "R.C. 2945.38
governs the disposition of a defendant after an initial determination that the defendant is not competent to
stand trial and sets forth the procedures for treatment and evaluation orders." [CITATION]
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[CITATION] (counsel did not provide appellant with ineffective
assistance of counsel where appellant's ineffective assistance of counsel claim was
based on "counsel's failure to act," thereby limiting appellant to mere speculation and
conjecture as to counsel's alleged deficiency). Kyles' claim otherwise lacks merit.
[SEGMENT 20]
{¶ 33} We also agree with the trial court's finding that Kyles' ineffective assistance
of counsel claims were "diametrically opposite of reality as evidenced by the recorded
proceedings where the defense mounted a vigorous assault of dysfunctional deviance
upon the prosecution." The record indicates that these efforts were so effective that, as
the trial court stated within its decision, they "penetrated the prosecution's labors so
effectively" that it necessitated the state requesting, and thereafter receiving, "a specific
jury instruction on the question of diminished capacity." This is in addition to the trial
court's finding Kyles' trial counsel had "specifically addressed questions of 'diminished
capacity' throughout the trial, fought for, and received, two independent 'in-person
evaluations' by trained experts, and made the tactical decision not to pursue live
testimony as, from a purely speculative point of view, it may have done more harm to his
client's defense than good." Given the record in this case, we agree with the trial court's
findings.
{¶ 34} Regardless, even if we were to assume Kyles' petition was sufficient on its
face to raise an issue as to whether Kyles' trial counsel was deficient for failing to seek
out that third competency evaluation, which it was not, Kyles' petition is wholly lacking as
it relates to how that failure subjected him to any resulting prejudice as required by the
second prong of the Strickland inquiry. This is because, even if Kyles' trial counsel had
obtained a report like that provided to him by Dr. Tilley, that would have done nothing
more than created a battle of the experts on the issue of whether Kyles had the intellectual
capacity to stand trial and to make a knowing, intelligent, and voluntary waiver of his
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Miranda rights. That Kyles' trial counsel chose not to wage that war after having already
received two other competency evaluations indicating Kyles was competent to stand trial
was clearly a strategic decision, one that this court finds is not even all that debatable
given the facts of this case.
{¶ 35} This is significant when considering "even debatable strategic and trial
tactics do not constitute ineffective assistance of counsel." [CITATION] This holds true "even if, in hindsight, it looks
as if a better strategy had been available." [CITATION] This is a well-
established principle given that this court must "strongly presume that defense counsel
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment," [CITATION] for it is "all too tempting" to "second-guess counsel's
assistance after conviction or adverse sentence * * *." [CITATION]
Therefore, for these reasons, Kyles' second argument also lacks merit.
{¶ 36} What is more, and what simply cannot be ignored, is the fact that the state
presented overwhelming evidence of Kyles' guilt on all counts and specifications for which
he was tried and convicted, a determination that this court made on three separate
occasions in our decision denying Kyles' direct appeal. See [CITATION] This evidence included, as noted by the trial court, "evidence from his
GPS tracker, other witnesses and the victim's blood on the money recovered from him,"
all of which "would be sufficient for a reasonable jury to convict." The trial court found this
to be the case even when taking Kyles' confession out of the equation. We agree.
Therefore, given the overwhelming evidence of Kyles' guilt presented at trial, any alleged
deficiency in his trial counsel's performance for failing to seek out that third competency
- 19 - ```
Butler CA2023-07-083
evaluation simply cannot be found prejudicial under the second prong of the Strickland
inquiry set forth above. See, e.g., [CITATION], ¶
273 ("given the overwhelming evidence of guilt in this case, counsel's alleged [deficient
performance] cannot be found prejudicial under Strickland").
{¶ 37} In so holding, we note that contrary to what Kyles' would like this court to
believe, Kyles was not convicted because of any alleged ineffective assistance provided
to him by his trial counsel. Kyles was instead convicted based upon the overwhelming
evidence establishing his guilt beyond a reasonable doubt. See, e.g., [CITATION], ¶ 62
(denying appellant's ineffective assistance of counsel claim where the record plainly
indicated "trial counsel did fully investigate this case and zealously represent [appellant],"
thereby leading to this court to find appellant "was not convicted based on ineffective
assistance of counsel, but instead [appellant's] conviction was based on the overwhelming
evidence presented at trial"). Accordingly, Kyles' third argument likewise lacks merit.
{¶ 38} For the reasons outlined above, and although we agree with Kyles'
argument that the trial court erred by misapplying the doctrine of res judicata to the case
at bar, such error was harmless. Being harmless error, this court need not reverse and
remand with respect to Kyles' claims alleging his trial counsel was ineffective for (1) failing
"to conduct and/or request [a] second competency evaluation" to determine whether he
had the intellectual capacity to stand trial; or (2) failing to consider his "significant mental
defect" and "obtain a psychological assessment" prior to the hearing on his motion to
suppress to determine whether he had the intellectual capacity to make a knowing,
intelligent, and voluntary waiver of his Miranda rights. This is because, when applying
the necessary two-part inquiry set forth above, the opinions offered by Dr. Tilley within his
affidavit and psychological evaluation report, together with the evidence contained within
- 20 -
``` Butler CA2023-07-083
the trial court record, do not present substantive grounds that would entitle Kyles to relief.
Therefore, because the record on its face demonstrates that Kyles is not entitled to relief,
the trial court did not abuse its discretion by denying Kyles' postconviction relief petition
without a hearing. Accordingly, finding no error in the trial court's decision, Kyles' first
issue lacks merit.
Kyles' Second Issue and Analysis: The Law of the Case Doctrine
{¶ 39} In his second issue presented for review, like that of his first, Kyles argues
the trial court erred by misapplying the law of the case doctrine when overruling his
petition for postconviction relief without a hearing. However, given the resolution of Kyles'
first issue set forth above, this issue has now been rendered moot. Pursuant to App.R.
12(A)(1)(c), "[u]nless an assignment of error is made moot by a ruling on another
assignment of error," a court of appeals shall "decide each assignment of error and give
reasons in writing for its decision." "[A]n assignment of error is moot when an appellant
presents issues that are no longer live as a result of some other decision rendered by the
appellate court." [CITATION], ¶ 26. Therefore,
although presented as an issue for review rather than as a full-fledged assignment of
error, Kyles' second issue is nevertheless moot in accordance with App.R. 12(A)(1)(c)
and need not be addressed by this court.
Kyles' Third Issue and Analysis: The "But For" Standard of Prejudice
{¶ 40} In his third issue presented for review, Kyles argues the trial court erred by
"expressly relying on an erroneously high 'but for' standard for prejudice" as it relates to
the second prong⎯the prejudice prong⎯of the Strickland ineffective assistance of
counsel inquiry. To support this claim, Kyles directs this court's attention to [CITATION],
wherein the Ohio Supreme Court stated that, "[r]egarding the prejudice
prong, the defendant must prove that there is a 'reasonable probability' that counsel's
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deficiency affected the outcome of the defendant's proceedings." Therefore, according
to [CITATION], "the test for 'prejudice' is not the 'but for' causation test applied by the trial court,"
it is instead the "reasonable probability" test set forth by the Ohio Supreme Court in [CITATION]
that applies. What [CITATION] seems to overlook, however, is that the Ohio Supreme Court in
[CITATION] cited directly to [CITATION], for this proposition of law, a page in
which the United States Supreme Court specifically held that, to establish prejudice in an
ineffective assistance of counsel claim:
The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.
(Emphasis added.)
{¶ 41} That the Ohio Supreme Court in [CITATION] paraphrased the United States
Supreme Court's decision in [CITATION] rather than providing a direct, and more complete
quote of the United Supreme Court's holding in that case, does not mean the standard in
Ohio for establishing prejudice in an ineffective assistance of counsel claim was changed
in [CITATION]. Had that been the case, the Ohio Supreme Court certainly would have made
that clear given the sheer amount of times [CITATION] has been cited to for that proposition
of law in Ohio. This includes over 70 times by the Ohio Supreme Court alone. That is
[SEGMENT 21]
to say nothing of the fact that, according to this court's research, every Ohio appellate
court has continued to use the "but for" standard of prejudice when reviewing ineffective
assistance of counsel claims after the Ohio Supreme Court's decision in [CITATION] was
released. This includes over ten times by this court, the most recent being just over two
5. At the time of this writing, that portion of [CITATION] had been cited by Ohio appellate courts nearly 3,000
times, with countless other decisions applying the same "but for" standard of prejudice without citing directly
to [CITATION]. See, e.g., [CITATION].
- 22 - Butler CA2023-07-083
months prior to this case being submitted to this court for decision. See [CITATION],
12th Dist. Butler No. CA2023-03-037, 2023-Ohio-4354, ¶ 16. Accordingly, finding no merit
to Kyles' claim raised herein, Kyles' third issue lacks merit.
Kyles' Fourth Issue and Analysis: The Sixth Amendment Right to Counsel
{¶ 42} In his fourth issue presented for review, Kyles argues the trial court erred by
summarily denying his postconviction relief petition without a hearing on his claim that he
received ineffective assistance of counsel based upon his trial counsel's failure to argue,
as part of his motion to suppress, that his Sixth Amendment right to counsel had been
violated. However, after a thorough review of the record, we agree with the trial court's
decision finding Kyles' argument that, once he invoked his Fifth Amendment right to
counsel, the police were forever barred from speaking with the defendant without counsel,
"specious at best." This is because, as the trial court properly determined, "a defendant
can waive both his Fifth and Sixth Amendments rights even after invocation" pursuant to
the United States Supreme Court's decision in [CITATION], which held "the Sixth Amendment right to counsel may be waived by
a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent."
Id. at 786.
{¶ 43} Contrary to Kyles' claim, "[n]othing in the Sixth Amendment prevents a
suspect charged with a crime and represented by counsel from voluntarily choosing, on
his own, to speak with police in the absence of an attorney." [CITATION]. Therefore, "[a]lthough a defendant may sometimes
later regret his decision to speak with police, the Sixth Amendment does not disable a
criminal defendant from exercising his free will." Id. at 353. That is exactly what Kyles
did here, thus negating any claim that Kyles received ineffective assistance based upon
his trial counsel's failure to argue, as part of his motion to suppress, that his Sixth
- 23 - Butler CA2023-07-083
Amendment right to counsel had been violated. Had Kyles' trial counsel chosen to raise
such an issue with the trial court, such a claim would have surely been denied outright as
having no basis in law or in fact, thus rendering any such argument futile. "Trial counsel
is not ineffective for failing to make a futile argument." [CITATION]. Accordingly, finding no merit to Kyles' claim
raised herein, Kyles' fourth issue lacks merit.
Conclusion
{¶ 44} For the reasons outlined above, and finding no merit to any of the four
issues raised by Kyles' herein, Kyles' two assignments of error challenging the trial court's
decision summarily denying his petition for postconviction relief without a hearing lack
merit and are overruled. Therefore, having now overruled the two assignments of error
advanced by Kyles in support of his appeal, Kyles' appeal from the trial court's decision
summarily denying his postconviction relief petition without a hearing is denied.
{¶ 45} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
- 24 -
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION].]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-134
THE STATE OF OHIO, APPELLEE, v. JOHNSON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as [CITATION].]
Criminal law—Postconviction relief—R.C. 2953.21 and 2953.23—Recantation
evidence—Trial court could have no jurisdiction to entertain untimely,
successive petition for postconviction relief unless petitioner established
(1) that he was unavoidably prevented from timely discovering that victim
had doubts about victim’s trial testimony and (2) that he would not have
been convicted but for constitutional error at trial—R.C. 2953.23 requires
a petitioner to submit evidence of specific facts beyond supporting
affidavit’s date to explain why petitioner was unable to timely obtain an
affidavit from recanting witness—A conviction based on false testimony is
not a constitutional violation unless the state had knowledge of testimony’s
falsity—Court of appeals’ judgment affirmed.
(No. 2022-0488—Submitted April 18, 2023—Decided January 18, 2024.)
APPEAL from the Court of Appeals for Cuyahoga County, SUPREME COURT OF OHIO
No. 110347, 2022-Ohio-81.
__________________
DETERS, J.
{¶ 1} Ohio law permits a person convicted of a criminal offense to petition
the trial court to vacate his conviction when he believes “there was such a denial or
infringement of [his] rights as to render the judgment void or voidable under the
Ohio Constitution or the Constitution of the United States.”
R.C. 2953.21(A)(1)(a)(i). But the statutory scheme governing such postconviction
relief limits offenders to one petition and circumscribes the time for filing. R.C.
2953.23 and 2953.21(A)(2). A trial court generally has no jurisdiction to consider
an untimely or successive petition. [CITATION]. This jurisdictional bar, however, is not
insurmountable. A petitioner can overcome the bar if he shows that he was
“unavoidably prevented” from discovering the facts on which his claim relies and
that but for constitutional error at trial, he would not have been convicted. R.C.
2953.23(A)(1); [CITATION], ¶ 20.
{¶ 2} Years after a jury found appellant, Eric Johnson, guilty of attempted
murder and various other offenses, he invoked the postconviction-relief statutes and
petitioned the trial court in a bid to have his convictions vacated. His petition was
untimely and successive. To satisfy the jurisdictional requirements, Johnson relied
on an affidavit of the victim in which the victim called into question his
identification of Johnson as the assailant soon after the attack and at trial. Was that
evidence sufficient to rebut Ohio’s general prohibition on untimely, successive
postconviction petitions?
{¶ 3} The trial court and the Eighth District Court of Appeals said no. We
agree. Based on the plain language of Ohio’s postconviction statutes, Johnson bore
the burden of proving not only that he was prevented, but that he was unavoidably
January Term, 2024
prevented, from timely discovering the victim’s recantation. Reference to the date
that such an affidavit was executed or provided does not, standing alone, satisfy his
burden. Because Johnson provided no additional evidence as to why he could not
timely obtain an affidavit from the witness, we affirm the Eighth District’s
judgment.
I. BACKGROUND
A. Johnson is convicted following a jury trial
{¶ 4} While walking in Cleveland during the early morning of August 26,
2012, James Keith was robbed and shot. As the Eighth District noted below, Keith
told police that the shooter was an acquaintance that he knew as “E,” though he did
not know E’s given name. [CITATION], ¶ 2. Police obtained a photograph of the
person known as “E” and prepared a photo array with him in it. Keith viewed the
photo array and identified Johnson as E.
{¶ 5} Johnson was indicted on seven counts relating to the attack on Keith:
one count of kidnapping, two counts of aggravated robbery, two counts of felonious
assault, one count of attempted murder, and one count of petty theft. Following a
jury trial during which Keith again identified Johnson as the assailant, the jury
found Johnson guilty on all counts. He was sentenced to an aggregate prison term
of 21 years. The Eighth District affirmed Johnson’s convictions on direct appeal.
[CITATION], ¶ 1-2, 74.
B. Johnson’s postconviction proceedings
{¶ 6} Johnson’s efforts to obtain postconviction relief began while his direct
appeal was pending. The trial court denied Johnson’s first petition for
postconviction relief, which alleged that he had received ineffective assistance of
counsel. [CITATION], ¶ 5-6. The Eighth District affirmed. Id. at ¶ 25-26. In 2017,
Johnson attempted to file a second petition for postconviction relief, alleging that his
attempted-felony-murder offense was not a cognizable offense in Ohio. [CITATION]
[SEGMENT 22]
SUPREME COURT OF OHIO
[CITATION]. That petition was both untimely and
successive, and the trial court denied Johnson’s motion for leave to file the petition.
Id. at ¶ 7. The Eighth District affirmed that judgment. Id. at ¶ 12-13.
{¶ 7} Johnson’s third petition for postconviction relief, filed on November
13, 2020, is the subject of this appeal. This time, Johnson claimed that Keith had
recanted his trial testimony identifying Johnson as his attacker. In a handwritten
affidavit dated August 26, 2020, Keith distanced himself from his trial testimony.
He stated in the affidavit that his “only recollection of [his] assailant [was] that [the
assailant] was an African American man with gold teeth” and that he does not “have
much of a memory of the night of the incident after being placed in the ambulance.”
Commenting on his trial testimony, he explained in the affidavit that he had “felt
pressured by [a police detective] to * * * testify against Mr. Johnson even though
[he] wasn’t sure [Johnson] was the person who committed these crimes against
[him].” And he revealed that he believes that he “identified the wrong person” as
his attacker and that he has had doubts about his trial testimony for “the past seven
years.”
{¶ 8} The trial court denied Johnson’s petition without a hearing, and the
court of appeals affirmed that decision. [CITATION] at ¶ 22-23. We accepted
jurisdiction over Johnson’s appeal to address the following proposition of law:
A defendant’s rights to due process of law and a fair trial
pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution and Section 16, Article I of the Ohio
Constitution are violated when the trial court denies a defendant’s
petition for postconviction relief based on newly discovered
evidence and is in contravention to the precedent recently
established by this Court’s recent decision in [CITATION].
January Term, 2024
See [CITATION].
II. ANALYSIS
A. Ohio’s postconviction-petition scheme
{¶ 9} In Ohio, “[a]ny person who has been convicted of a criminal offense
* * * and who claims that there was such a denial or infringement of the person’s
rights as to render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States” is permitted to “file a petition in the court that
imposed [the] sentence, * * * asking the court to vacate or set aside the judgment
or sentence.” R.C. 2953.21(A)(1)(a). But a person has a limited time within which
to do so. “Except as otherwise provided in [R.C. 2953.23], a petition * * * shall be
filed no later than three hundred sixty-five days after the date on which the trial
transcript is filed in the court of appeals in the direct appeal of the judgment of
conviction * * *.” R.C. 2953.21(A)(2)(a).1
{¶ 10} A trial court does not have subject-matter jurisdiction to adjudicate
a postconviction petition that is untimely—i.e., filed outside the statutory deadline
under R.C. 2953.21(A)(2)—or successive—i.e., a second or subsequent petition.
See [CITATION], at ¶ 36, 38.
There are two exceptions to this jurisdictional bar. See R.C. 2953.23(A)(1) and (2).
One is relevant here. A trial court may entertain an untimely or successive petition
if “the petitioner shows that the petitioner was unavoidably prevented from
discovery of the facts upon which the petitioner must rely to present the claim for
relief” and “[t]he petitioner shows by clear and convincing evidence that, but for
1. At the time of Johnson’s convictions, the deadline for filing a petition for postconviction relief
was 180 days, not 365. See former R.C. 2953.21(A)(2), 2010 Sub.S.B. No. 77. The shorter deadline
makes no material difference in this case because Johnson’s petition was filed well after the statutory
deadline regardless of whether it was 180 days or 365.
SUPREME COURT OF OHIO
constitutional error at trial, no reasonable factfinder would have found the petitioner
guilty.”2 R.C. 2953.23(A)(1)(a) and (b).
{¶ 11} “We review de novo whether the trial court had subject-matter
jurisdiction to entertain [a] petition [for postconviction relief].” [CITATION] at ¶ 20, citing [CITATION] at ¶ 24.
B. Johnson’s petition did not satisfy R.C. 2953.23(A)(1)
{¶ 12} The petition for postconviction relief at issue was untimely and
successive under R.C. 2953.21(A): it was Johnson’s third petition for
postconviction relief under R.C. 2953.21, and it was filed outside the statutory
deadline following the filing of the trial-court transcript in Johnson’s direct appeal
of his convictions. Accordingly, the trial court had no jurisdiction to consider the
petition unless (1) Johnson established that he was unavoidably prevented from
discovering Keith’s recantation before the statutory deadline and (2) he showed “by
clear and convincing evidence that, but for constitutional error at trial,” he would
not have been convicted, R.C. 2953.23(A)(1). A petitioner like Johnson must
satisfy both of those requirements before the trial court may entertain his petition;
Johnson satisfied neither.
C. The burden is on Johnson to establish that he was unavoidably prevented
from discovering Keith’s recantation before the deadline
{¶ 13} R.C. 2953.23 puts the onus on the petitioner to show that he was
unavoidably prevented from discovering the facts on which his petition relies.
R.C. 2953.23(A)(1)(a). But Johnson maintains that our recent decision in [CITATION]
shifted to the state the burden to demonstrate that the petitioner was capable of
2. A petitioner need not show that he was unavoidably prevented from discovering the facts on
which the petition is based if he establishes that “subsequent to the [statutory deadline] or to the
filing of an earlier petition, the United States Supreme Court recognized a new federal or state right
that applies retroactively to persons in the petitioner’s situation, and the petition asserts a claim
based on that right.” R.C. 2953.23(A)(1)(a). That exception does not apply here.
January Term, 2024
discovering the evidence sooner. Not so. Construing [CITATION] in that fashion not
only misreads that case’s holding but also turns R.C. 2953.23 on its head.
{¶ 14} In [CITATION], at
¶ 2, the petitioner’s claims relied largely on the state’s failure to disclose a report
prior to trial. The petitioner alleged that under [CITATION], the state violated his due-process rights by
withholding evidence favorable to his defense. [CITATION] at ¶ 2, 11. We considered
the propriety of the [CITATION] claim on two separate fronts: (1) whether res judicata
barred the claim, [CITATION] at ¶ 16-18, and (2) whether the petitioner was unavoidably
prevented from timely discovering the basis for his petition as required by
R.C. 2953.23, [CITATION] at ¶ 21-25.
{¶ 15} With respect to the res judicata question, we held that the state bore
the burden of proving that the petitioner could have raised the [CITATION] claim in a
previous postconviction petition, because res judicata was invoked by the state.
[CITATION] at ¶ 17-18. After dispensing with the state’s res judicata argument, this court
considered the effect of the [CITATION] claim under R.C. 2953.23’s “unavoidably
prevented from discovery of the facts” requirement. [CITATION] at ¶ 21-25.
{¶ 16} Prior to [CITATION], Ohio courts typically required a postconviction
petitioner to “show that he was unaware of the evidence he [was] relying on and
that he could not have discovered the evidence by exercising reasonable diligence.”
Id. at ¶ 21. But we determined in [CITATION] that requiring the demonstration of
reasonably diligent attempts to discover [CITATION] materials would violate the United
States Supreme Court’s pronouncement that “criminal defendants have no duty to
‘scavenge for hints of undisclosed [CITATION] material.’ ” [CITATION] at ¶ 24, quoting [CITATION]. Thus, we
held that “when a defendant seeks to assert a [CITATION] claim in an untimely or
successive petition for postconviction relief, the defendant satisfies the
‘unavoidably prevented’ requirement contained in R.C. 2953.23(A)(1)(a) by
[SEGMENT 23]
SUPREME COURT OF OHIO
establishing that the prosecution suppressed the evidence on which the defendant
relies.” Id. at ¶ 25. Accord [CITATION], ¶ 17 (“a defendant may satisfy the ‘unavoidably prevented’
requirement contained in Crim.R. 33(B) by establishing that the prosecution
suppressed the evidence on which the defendant would rely”).3
{¶ 17} Properly understood, [CITATION] reconciles the burden of proof in
R.C. 2953.23(A)(1) with the dictates of Brady. What [CITATION] does not do is
eliminate a petitioner’s burden of proof. Nor could this court have done so. The
General Assembly chose to place the burden of proof squarely on the shoulders of
postconviction petitioners such as Johnson by enacting the requirement that “the
petitioner show[] that the petitioner was unavoidably prevented from discovery of
the facts upon which the petitioner must rely,” R.C. 2953.23(A)(1)(a).
{¶ 18} Holding as Johnson would have us do—that the petitioner does not
bear that burden—would transmogrify the statute. Thus, we reaffirm today that a
petitioner who files an untimely or successive petition for postconviction relief
under R.C. 2953.21 bears the burden of showing that he was unavoidably prevented
from discovering the evidence on which the petition relies. A petitioner may make
the required showing either by establishing a violation under Brady, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215, or by demonstrating that he was previously unaware
of the evidence on which the petition relies and could not have discovered it by
exercising reasonable diligence.
. Johnson did not meet his burden
{¶ 19} Although Johnson contends that Keith’s trial testimony identifying
him as the assailant was the result of police pressure, he did not raise a Brady
3. Crim.R. 33(B), which governs untimely motions for a new trial, likewise requires the defendant
to prove that he was “unavoidably prevented” from discovering the evidence on which he relies.
“ ‘The “unavoidably prevented” requirement in Crim.R. 33(B) mirrors the “unavoidably prevented”
requirement in R.C. 2953.23(A)(1).’ ” [CITATION], quoting [CITATION], ¶ 28.
January Term, 2024
claim in his petition for postconviction relief. So to carry his burden under
R.C. 2953.23(A)(1), he was instead required to submit evidence showing that he
was unavoidably prevented from discovering that Keith had doubts about his
identification of him. The next question, then, is whether a recanting witness’s
affidavit dated after the postconviction-petition deadline has passed is sufficient to
satisfy that standard.
{¶ 20} The parties propose very different answers to this question. Johnson
contends that the bare fact that Keith’s recantation affidavit was executed in 2020—
long after Johnson’s postconviction-petition deadline expired—suffices. Details
such as the reasons for and the timing of the affidavit could, according to Johnson,
be explored during a hearing on the petition.
{¶ 21} Johnson’s preferred approach is consonant with a line of Ohio
appellate-court cases holding that an affidavit recanting testimony is, by itself,
sufficient to establish that the petitioner was unavoidably prevented from timely
submitting the evidence when the affidavit was obtained after the deadline. See,
e.g., [CITATION] (requiring a hearing on a motion for a new trial “whenever an appellant
produces a recanting affidavit after [the deadline for filing the motion]”); [CITATION]
(holding, in the context of a motion for a new trial, that the defendant was unavoidably prevented
from discovering the evidence relied on, based on recanting witness’s statement
that the defendant “was neither aware of the contents of the affidavit nor aware of
the fact that [the witness] would be willing to give such an affidavit, until * * * the
date of the * * * affidavit”).
{¶ 22} Other Ohio courts look beyond the date of the affidavit, however. In
those cases, the courts held that an affidavit’s being dated beyond the deadline is
not prima facie evidence that the petitioner was unavoidably prevented from timely
discovering the recantation. See, e.g., [CITATION].
SUPREME COURT OF OHIO
16CA3765, 2017-Ohio-574, ¶ 15 (determining, in the context of a motion for a new
trial, that “[t]he date upon which [the defendant] became aware of [the recanting
witness’s] statement is not prima facie evidence that [the defendant] was
unavoidably prevented from discovering [the] statement during [the period for
filing a motion for a new trial]”); [CITATION], 2017-Ohio-637, ¶ 54 (holding, in the context of a motion for a new
trial, that untimely affidavits “that fail to offer a sufficient explanation as to why
evidence could not have been obtained sooner are inadequate to show that the
movant was unavoidably prevented from obtaining the evidence within the
prescribed time”). It is this latter rule that the state urges us to adopt.
{¶ 23} Which approach is correct? The answer lies in the words of R.C.
2953.23. “When the meaning of a statute is clear and definite, it must be applied
as written,” [CITATION], 2023-Ohio-1456, __ N.E.3d __,
¶ 11, because “ ‘an unambiguous statute means what it says,’ ” [CITATION],
quoting [CITATION], 164, 359 N.E.2d 1371 (1977). Words may not be added or deleted
according to judicial whimsy. [CITATION] at 631.
{¶ 24} Here, R.C. 2953.23(A)(1)(a) requires a petitioner to show that he
was “unavoidably prevented”—not merely “prevented”—from discovering the
facts on which he would rely. (Emphasis added.) “Unavoidable” means “not
avoidable” or “inevitable.” Merriam-Webster’s Collegiate Dictionary 1360 (11th
Ed.2003). And something is “inevitable” if it is “incapable of being avoided or
evaded.” Id. at 638. Keeping in mind that R.C. 2953.23 means what it says, a
petitioner filing an untimely postconviction petition must show that any delay in
discovering the facts undergirding the petition was “incapable of being avoided or
evaded,” Merriam-Webster’s Collegiate Dictionary at 638.
{¶ 25} The light that an affidavit’s date sheds on that issue is dim, at best.
A date merely reveals when the affidavit was executed or provided, not when the
January Term, 2024
testimony it contains became available. Without an explanation of how the
recantation was discovered, the information essential to the R.C. 2953.23 inquiry
remains cloaked in darkness. It is this type of information that bears on the
petitioner’s ability to avoid delay in discovering recanted testimony.
{¶ 26} Johnson argues that questions concerning efforts to discover a
recantation and the timing of a supporting affidavit should be explored at a hearing.
But R.C. 2953.23 dictates otherwise. Remember, the petitioner bears the burden of
proving that he was unavoidably prevented from discovering the evidence on which
he must rely, before the trial court even has subject-matter jurisdiction to consider
the petition. See R.C. 2953.23(A)(1); [CITATION], at ¶ 24, 36, 38. Therefore, it is the petitioner’s duty to
present sufficient evidence to carry that burden at the time he files the petition. And
there is no practical reason why a hearing might be necessary for the petitioner to
satisfy this burden. If testimony can be elicited at a hearing, it can be attested to in
an affidavit. We therefore reject Johnson’s argument that regardless of the
circumstances, a hearing is required whenever a petitioner produces an affidavit
from a witness recanting the witness’s testimony.
{¶ 27} Accepting an affidavit’s date as prima facie evidence satisfying the
strictures of R.C. 2953.23(A)(1)(a) would effectively eliminate the word
“unavoidably” from the statute. Thus, we hold that R.C. 2953.23(A)(1)(a) requires
a petitioner to submit evidence of specific facts beyond the supporting affidavit’s
date to explain why the petitioner was unable to timely obtain an affidavit from the
recanting witness.
{¶ 28} Turning to the facts of this case, we conclude that Johnson did not
carry his burden under R.C. 2953.23. The only evidentiary support for Johnson’s
petition was Keith’s affidavit. Missing from Keith’s affidavit is any information
about when and how he first notified Johnson of his misgivings about his
[SEGMENT 24]
SUPREME COURT OF OHIO
identification of Johnson. The affidavit sheds no light on whether Keith contacted
Johnson or vice versa or when such contact occurred.
{¶ 29} In his petition, Johnson stated in conclusory fashion that the
information in Keith’s affidavit “was not available to [him] until this time” and
“was not discoverable by him until Keith voluntarily presented it.” But Keith’s
affidavit does not state, or even imply, this. On the contrary, Keith claims in his
affidavit that he had “spent the past seven years thinking about [his] testimony” and
that he had daily “felt an incredible weight on [his] shoulders” because he believed
he did not identify the right person. In fact, Keith’s affidavit provides no
information about whether Johnson had been prevented, unavoidably or otherwise,
from timely discovering Keith’s uncertainties about his identification of Johnson.
{¶ 30} Because Johnson has not shown that he was unavoidably prevented
from discovering Keith’s recantation within the statutory deadline, the trial court
lacked jurisdiction to consider his petition.4
. Johnson has not shown constitutional error
{¶ 31} Johnson’s petition fails for a second reason. In addition to satisfying
R.C. 2953.23(A)(1)(a), Johnson needed to show by clear and convincing evidence
that “constitutional error at trial” was the “but for” cause of his convictions, R.C.
2953.23(A)(1)(b). He did not.
{¶ 32} Here, Johnson claims that he satisfied this requirement by showing
three types of constitutional violations: perjured testimony, police coercion, and a
violation under [CITATION]. Only one of
4. It is questionable whether Johnson would be entitled to move forward with his petition even if it
were timely and not successive such that R.C. 2953.23’s jurisdictional bar were not an issue. He
petitioned under R.C. 2953.21(A)(1)(a)(i), which allows “[a]ny person who has been convicted of
a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or
infringement of the person’s rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States” to file a petition. As we discuss below,
Johnson did not sufficiently claim in his petition that the state had denied or infringed on any of his
constitutional rights.
January Term, 2024
these theories—perjury—was arguably raised in the trial court: Johnson argued in
his petition that he was denied his rights to due process and a fair trial because Keith
allegedly committed perjury. Coercion was not mentioned in Johnson’s petition.5
Neither was Brady. So Johnson has forfeited those arguments. See [CITATION].
{¶ 33} Once Johnson’s two forfeited arguments—police coercion and
Brady violation—are disregarded, we are left with Keith’s purported perjury as the
sole alleged constitutional error. But perjury is not constitutional error. Both this
court and the United States Court of Appeals for the Sixth Circuit have determined
that the state’s “ ‘knowing use of false or perjured testimony’ ” may constitute a
denial of due process. (Emphasis added.) [CITATION], quoting [CITATION]. The United States Supreme Court has come to the
same conclusion. See [CITATION]. Unwitting use of perjured testimony is a different
story.
{¶ 34} Neither this court nor the United States Supreme Court has held that
perjured testimony offered without the state’s knowledge is a deprivation of due
5. Johnson suggested in his petition that the police pressured Keith. But pressure is not inherently
coercive. See [CITATION] (“pressure merely to testify does not indicate
pressure to falsify”). Not only did Johnson fail to assert that Keith had been coerced, he also failed
to allege any facts implying coercion.
6. The dissenting opinion takes the position that these arguments were not forfeited. The case it
cites in support of that position—[CITATION]—is inapposite. In that case, the question was whether Bunch had “provided sufficient operative
facts to warrant an evidentiary hearing regarding his claim that he was prejudiced as a result of
counsel’s deficient performance,” id. at ¶ 50, not whether he had forfeited the claim. Bunch had
clearly raised in his postconviction petition the issue of his counsel’s ineffectiveness. See id. at ¶
14.
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process. The late Justice Scalia once observed that “the Ninth Circuit * * *
stretched the Constitution” when it held that “the use of * * * false testimony
violated the Fourteenth Amendment’s Due Process Clause, whether or not the
prosecution knew of its falsity. We have never held that, and are unlikely ever to
do so.” (Citation omitted.) [CITATION] (Scalia, J., dissenting from the denial of certiorari).
Likewise, we decline to do so today.
III. CONCLUSION
{¶ 35} The trial court could have no jurisdiction to entertain Johnson’s
untimely, successive petition for postconviction relief unless Johnson established
two things: (1) that he was unavoidably prevented from timely discovering that
Keith had doubts about his trial testimony and (2) that he would not have been
convicted but for constitutional error at trial. See R.C. 2953.23(A)(1). He
established neither. Nothing in the record details Johnson’s efforts, if there were
any, to timely obtain an affidavit from Keith, and he has provided no explanation
why such efforts would have been unavailing. And a conviction based on false
testimony is not a constitutional violation unless the state had knowledge of the
testimony’s falsity. We therefore affirm the judgment of the Eighth District Court
of Appeals.
Judgment affirmed.
KENNEDY, C.J., and FISCHER and DEWINE, JJ., concur.
DONNELLY, J., dissents, with an opinion joined by STEWART and BRUNNER,
JJ.
_________________
DONNELLY, J., dissenting.
{¶ 36} Because appellant, Eric Johnson, articulated sufficient operative
facts to warrant a hearing on his November 2020 petition for postconviction relief,
I dissent.
January Term, 2024
I. BACKGROUND
{¶ 37} In February 2013, a jury determined that Johnson was the person
who robbed and repeatedly shot James Keith on August 26, 2012. According to
the Eighth District Court of Appeals’ description of the evidence submitted at
Johnson’s trial,[CITATION] the identification of Johnson as the attacker hinged on Keith’s
eyewitness-identification testimony; no physical evidence linked Johnson to the
attack, and the remaining witnesses at trial were first responders and the police
detectives who became involved during the aftermath of the attack. See [CITATION]. Johnson has
maintained that he is innocent and that Keith incorrectly identified him as the
attacker.
{¶ 38} In December 2013, Johnson filed his first petition for postconviction
relief in this case. See [CITATION]. According to the Eighth District, Johnson asserted in that petition
that his trial counsel had been ineffective for failing to investigate an alibi witness
and for failing to adequately communicate a midtrial plea offer to Johnson. Id.
Johnson supported that petition with an affidavit from his trial counsel. Id. In
January 2014, the trial court denied the petition without a hearing. Id. at ¶ 1, 6. In
February 2014, Johnson filed a supplemental petition. Id. at ¶ 6. According to
Johnson’s recitation of the facts in his merit brief here, the supplemental petition
included an affidavit from Johnson’s codefendant, John Alexander, that supported
Johnson’s claim of innocence. The trial court dismissed the supplemental petition.
Id. The Eighth District affirmed. Id. at ¶ 26.
7. For reasons that are unclear, the full record of Johnson’s trial-court proceedings was not
transmitted on appeal. The portion of the trial-court record that was transmitted includes trial-court
docket Nos. 69 through 82, covering docket items from January 22, 2018, through March 8, 2021,
but it does not include any materials concerning Johnson’s trial or his first petition for postconviction
relief. Accordingly, and unfortunately, my understanding of the case is constrained to the
representations of the parties and the court of appeals.
SUPREME COURT OF OHIO
{¶ 39} The postconviction petition at issue here was filed in November
2020 and included an August 2020 affidavit from Keith, in which he stated:
. I am the victim in CR567736 State of Ohio v. Eric Johnson.
3. As a result of this incident I was shot nine times, spent seven
months in the hospital, was in a coma for a month, and then had to
learn to walk again.
4. My only recollection of my assailant is that he was an African
American man with gold teeth. I don’t have much of a memory of
the night of the incident after being placed in the ambulance.
5. I testified at trial that Eric Johnson was the person who robbed
and assaulted me.
6. However, I felt pressured by [an investigating detective] to testify
against Mr. Johnson even though I wasn’t sure he was the person
who committed these crimes against me.
7. I have spent the past seven years thinking about this case and my
testimony. On a daily basis I have felt an incredible weight on my
shoulders because I believe I have identified the wrong person as
having committed the crimes against me.
[SEGMENT 25]
Johnson also asserted in the 2020 petition that the foregoing recantation evidence
was unavailable to him before Keith recently came forward and offered the
recantation. The trial court summarily denied the petition without a hearing.
II. ANALYSIS
{¶ 40} The November 2020 petition for postconviction relief was untimely
and successive under the applicable versions of R.C. 2953.21 and 2953.23. To
ultimately prevail on his petition, Johnson would need to provide clear and
convincing evidence that a constitutional error occurred at his 2013 trial and that
January Term, 2024
but for that error, no reasonable fact-finder would have found him guilty. See
R.C. 2953.23(A)(1)(b). Johnson would also need to establish that he was
“unavoidably prevented,” R.C. 2953.23(A)(1)(a), from discovering the evidence
supporting his claim prior to December 2, 2013, which was 180 days after the
transcript of his trial was filed in the court of appeals in his direct appeal of his
convictions. See id.; former R.C. 2953.21(A)(2), 2010 Sub.S.B. No. 77. But we
are not concerned at this point with whether Johnson will ultimately prevail on his
petition; we are concerned only with whether the trial court should have held a
hearing on the petition. To merit a hearing, Johnson simply needed to produce
evidence establishing a prima facie claim that he was unavoidably prevented from
timely discovering the evidence supporting his petition and that the new evidence
presents a cognizable claim of constitutional error. See [CITATION]. Viewing Johnson’s petition and
supporting evidence under the facts and circumstances of this case, I believe a
hearing on the petition is merited.
A. “Unavoidably Prevented”
{¶ 41} The majority finds that Johnson provided no proof that he was
unavoidably prevented from discovering Keith’s recantation before the statutory
postconviction-petition deadline apart from the fact that Keith’s recantation
affidavit is dated after the deadline. The majority concludes that the date of a
recantation affidavit is not, by itself, prima facie evidence satisfying the
“unavoidably prevented from discovery of the facts” requirement under
R.C. 2953.23(A)(1)(a). I might agree with the majority’s conclusion under other
circumstances, such as those in [CITATION], one of the cases relied on by the majority. But I cannot agree with
the majority’s findings or conclusions under the circumstances of this case.
SUPREME COURT OF OHIO
{¶ 42} In Bennett, which involved an untimely motion for a new trial, the
recanting witness was the defendant’s brother, id. at ¶ 4. More than ten years before
the new-trial matter was filed, the defendant’s brother testified at the defendant’s
trial that the defendant had made an admission implying that he had caused the
victim’s death, contradicting the defendant’s testimony that the death had been
accidental, [CITATION]. The defendant and his brother had been in phone contact while the defendant
was in jail. [CITATION]. Given that specific context, the
defendant understandably could not establish a prima facie case under Crim.R.
33(B) (and likewise could not have established a prima facie case under
R.C. 2953.23(A)(1)(a)) by baldly claiming that he had been unavoidably prevented
from discovering his brother’s recantation.
{¶ 43} By contrast, the recanting witness in this case is the victim himself—
Keith. The parties state in their briefs that Keith testified at Johnson’s trial that he
had seen Johnson around town before the attack and had known him only as “E.”
Thus, it appears that Johnson and Keith had not been well acquainted. Under the
circumstances of this case, which include a victim who had suffered a brutally
violent attack, the victim’s recantation of identification testimony that had
otherwise ensured Johnson’s imprisonment for the attack, and the fact that Johnson
and the victim had been essentially strangers to each other, no more evidence is
necessary to establish a prima facie claim that Johnson was unavoidably prevented
from discovering Keith’s recantation sooner.
{¶ 44} The majority holds that more evidence was necessary to sustain
Johnson’s claim that he was unavoidably prevented from discovering Keith’s
recantation sooner, but it articulates no standard in that regard. What more must be
shown? Must the defendant spell out in an affidavit that he had not been in close
contact with the recanting victim and that he adhered to the truth that it is a terrible
idea to go around harassing the victim after trial? What more do we need besides
January Term, 2024
Johnson’s claim that Keith only “recently” decided to “come forward recanting his
identification” testimony and Keith’s statement that he came forward to recant after
spending years thinking about the case and feeling “an incredible weight on [his]
shoulders” about his testimony? If a person is convicted of a crime based on
eyewitness-identification testimony and that person is actually innocent, the person
already knows that one of two things happened: (1) either the witness lied or (2)
the witness was mistaken. When the crucible of cross-examination and the
penalties for perjury were not enough to convince a witness to testify truthfully and
accurately at trial, it is unreasonable to expect the defendant to extract a different
result from the witness after trial.
{¶ 45} Because the circumstances of Keith’s recantation relevant to
R.C. 2953.23(A)(1)(a) were already obvious, an affidavit articulating such obvious
facts and circumstances would be superfluous, and requiring more of defendants
like Johnson could be dangerous. Doing so could be dangerous to the victim’s
safety and peace of mind. It could be dangerous to the defendant, who could face
accusations of retaliation or intimidation of a witness. And it could be dangerous
to the defendant’s claim of innocence, given that a badgered recanting witness
would be seen as far less credible than a witness who recanted on his or her own
accord.
{¶ 46} Accordingly, I would hold that Johnson’s November 2020 petition
established a prima facie claim that he was unavoidably prevented from timely
discovering Keith’s recantation sooner and that the trial court erred by not holding
a hearing on the petition.
B. “Constitutional Error”
{¶ 47} Johnson argues that he adequately raised a cognizable claim of
constitutional error through Keith’s affidavit, which he says establishes that Keith
committed perjury at his trial and that the perjured testimony was a result of police
coercion and pressure to misidentify Johnson as the attacker, and he argues that the
SUPREME COURT OF OHIO
state’s failure to disclose that coercion violated the Supreme Court of the United
States’s holding in [CITATION]. The majority rejects Johnson’s arguments primarily by finding that
Johnson failed to raise any argument regarding police coercion or Brady in his
petition in the trial court. While I recognize that the legal arguments in Johnson’s
petition left a lot to be desired, I disagree that Johnson’s claims were entirely
forfeited.
{¶ 48} As long as Johnson’s petition alleged sufficient operative facts that,
if true, establish that a constitutional violation at his trial caused his convictions, he
is entitled to a hearing on the petition. See [CITATION]. I believe that sufficient operative facts
were presented through Keith’s averment that “[he] testified at trial that Eric
Johnson was the person who robbed and assaulted [him]. * * * However, [he] felt
pressured by [an investigating detective] to testify against Mr. Johnson even though
[he] wasn’t sure [Johnson] was the person who committed these crimes against
[him].”
{¶ 49} Keith did not merely say that he was pressured to testify in general.
He said that he was pressured to testify that Johnson was the person who had
attacked him, “even though” he had been unsure about the identity of his attacker.
The most reasonable reading of this averment is that the detective knew that Keith
was unsure of his attacker’s identity but pressured Keith to provide identification
testimony anyway. Regardless of whether or not Keith meant to indicate that the
state had instructed him to commit perjury, he indicated at the very least that he had
expressed uncertainty to the police about the identity of his attacker. Evidence of
such expressions to the police would have been favorable and material to Johnson’s
defense, given that Johnson’s convictions hinged on Keith’s identification
testimony, and the state’s failure to disclose such favorable, material evidence to
Johnson would certainly violate Brady. Regardless of whether Johnson’s counsel
January Term, 2024
specifically mentioned Brady in Johnson’s petition, the petition presented sufficient
operative facts to merit a hearing.
III. CONCLUSION
{¶ 50} I have emphasized that “[w]hen postconviction petitioners seeking
new trials provide evidence outside the trial-court record that potentially
undermines the theory of guilt that was used to convict them, courts should hold
hearings on the petitions as a regular practice.” [CITATION] at ¶ 43 (Donnelly, J., concurring); see also [CITATION] at ¶ 51; [CITATION] at ¶ 72
(Donnelly, J., dissenting); [CITATION] at ¶ 62 (Donnelly, J., dissenting).
{¶ 51} Johnson’s November 2020 petition for postconviction relief
articulates operative facts showing that the eyewitness-identification evidence that
was crucial to the determination of Johnson’s guilt at trial may have been false. I
personally think that this conclusion alone merits closer review of Johnson’s
petition, given that mistaken eyewitness identifications are thought to be
“ ‘responsible for more wrongful convictions than all other causes combined,’ ”
[CITATION], quoting A. Daniel Yarmey, Expert Testimony: Does Eyewitness Memory Research Have Probative
Value for the Courts?, 42 Canadian Psychol. 92, 93 (May 2001). But regardless,
Johnson’s petition also provided evidence establishing a prima facie claim that he
was unavoidably prevented from discovering Keith’s recantation prior to R.C.
2953.21’s deadline, and the facts established in the recantation affidavit present a
cognizable claim that Johnson’s convictions were predicated on the state’s
violations of his constitutional rights.
{¶ 52} I would reverse the judgment of the Eighth District Court of Appeals
and remand the cause to the trial court with an order for it to proceed to an
[SEGMENT 26]
SUPREME COURT OF OHIO
evidentiary hearing on Johnson’s November 2020 petition for postconviction relief.
Accordingly, I dissent.
STEWART and BRUNNER, JJ., concur in the foregoing opinion.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Gregory J. Ochocki and Tasha L. Forchione, Assistant Prosecuting Attorneys, for
appellee.
Joseph V. Pagano, for appellant.
Dave Yost, Attorney General, Michael J. Hendershot, Chief Deputy
Solicitor General, and Samuel C. Peterson and Jana M. Bosch, Deputy Solicitors
General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.
Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin
and Erika B. Cunliffe, Assistant Public Defenders, urging reversal for amicus curiae
Cuyahoga County Public Defender.
_________________
[Cite as [CITATION].]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff- Appellee, :
No. 112160
v. :
DUANE GIBSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 28, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-11-550542-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Kimberly Kendall Corral and Gabrielle M. Ploplis, for
appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Duane Gibson was convicted of felony murder in
2012. He and three codefendants were involved in a kidnapping and ransom plot. The plot turned deadly when the police shot to death a fourth accomplice while
rescuing the kidnapped victim. All three codefendants testified that Gibson planned
the kidnapping and solicited their help. Gibson was convicted of felony murder and
other offenses following a jury trial and received a prison term of 38 years to life.
Ten years later, Gibson filed the instant motion for leave to file a motion
for new trial. He submitted an unsigned affidavit from an inmate, Cordell Smith,
who was unrelated to the underlying case but alleged that when he and Umar Clark,
one of Gibson’s codefendants, were incarcerated together, Clark told him that
“everything that came out of his mouth ‘was shit’” and that he would “tell the truth”
if Gibson paid him $10,000. Gibson also submitted an undated document that
appears to be a part of a letter from someone who signed the writing as “Mr. Clark.”
After a careful review of the record and applicable law, we conclude the trial court
did not abuse its discretion in denying Gibson’s motion without a hearing.
Accordingly, we affirm the trial court’s decision.
Trial Testimony
The facts of this case are described in this court’s decision in Gibson’s
direct appeal, [CITATION]. Lloyd Davis was kidnapped by three men at gunpoint. He recognized one of them
as Gibson, with whom he shared family ties. The men bound him with twine and
duct tape, beat him, burned him with cigarettes, and robbed him. They drove him
in his own truck to a house owned by Gibson. Davis was held inside the truck,
parked in the garage of the house, and guarded by Clark and Leon James, who was The provided text does not contain any court ruling citations. Therefore, no replacements are necessary, and the text remains unchanged. money and Gibson asked to drive Brunson’s vehicle; Hillsman made the ransom
calls and then picked up the bag.
Gibson’s Motion for Leave to File a Motion for New Trial
The jury rendered the guilty verdict in June 2012. Almost ten years
later, on May 24, 2022, Gibson filed the instant motion for leave to file a motion for
a new trial. He claims there is newly discovered evidence entitling him to a new trial
and he was unavoidably prevented from discovering the evidence. The alleged newly
discovered evidence is in the form of two documents attached to his motion.
The first document is an affidavit of Smith. Smith does not have any
firsthand knowledge of the criminal events but avers that while they were
incarcerated together in 2011, Clark told him that he gave false information at the
trial. The affidavit was dated April 2, 2021. However, it was not signed by Smith.
The affidavit states:
I know Umar Clark from growing up in the same neighborhood
and we were locked up tother in Cuyahoga County jail in 2011 when
we were fighting cases at the same time.
Umar Clark had talked to me about his testimony in Duane
Gibson’s trial at that time.
In summary, he told me that everything that came out of his
mouth “was shit.”
I am hereby affirming that Umar Clark told me that if Duane
Gibson paid him $10,000, he would take back his statement and tell
the truth of what really happened.
Umar Clark told me that he gave false information because he
felt it was Duane Gibson’s fault that Leon died and that is why he lied
on the stand. I testify that on many occasions Umar Clark stated that if Duane
does not pay the $10,000, that he was not going to take back his
testimony and tell the truth.
He continuously repeated that he would tell the truth for * * *
$10,000 throughout the years; including when we were incarcerated
together in Trumbull Correctional and Mansfield Correctional
Institution.
The second document submitted by Gibson in support of his motion
is an undated partial letter signed by “Mr. Clark.” It states, in its entirety:
F***K who you show or give them papers to. I don’t regret shit
I do you writing me telling me what I need to do. I don’t take orders
money move me. You keep talking bout this affidavit shit. I didn’t
heard you say no numbers yet. Let me know how much yo freedom
worth to you. Or you can stay down. It’s all on you. Get at me.
P.S. You doing life. Damn that’s f***ed up! If they only know
you ain’t make me do shit or you ain’t give me that gun.
In Gibson’s motion, he claims he could not have timely discovered the
new evidence because he only discovered Smith “through the work of a private
investigator in 2021.” He alleges that his counsel only began representing him at
this late postconviction stage and counsel’s work led to the discovery of Smith.
Gibson, however, submitted no affidavit from the alleged investigator or his counsel,
or other documentary evidence, in support of this claim.
As to the letter, Gibson claims he “had no control over when Clark
would write him a letter confessing he lied in his testimony against him at trial” and
that “[t]here was no possibility that [he] could have obtained this evidence until it
was unexpectedly sent to him by Clark.” Again, there is also no affidavit or other documentary evidence submitted by Gibson regarding the circumstances of how or
when Gibson came to possess the letter.
The state opposes the motion, noting the irregularities of the
documents and calling into question their authenticity. The state also argues Gibson
failed to demonstrate by clear and convincing evidence that he was unavoidably
prevented from timely discovering the new evidence and a hearing on the motion
was not warranted.
The trial court denied Gibson’s motion. The judgment entry does not
include findings of fact and conclusions of law, stating only that defendant has failed
to satisfy his burden under Crim.R. 33(B).1
On appeal, Gibson raises five assignments of error for our review:
I. The trial court abused its discretion in ruling that Mr. Gibson
did not meet the requisite burden under Crim.R. 33(B).
A. Gibson was unavoidably prevented from discovering the
information contained in Cordell Smith’s affidavit within
days after the verdict.
B. Gibson was unavoidably prevented from discovering the
information contained in Umar Clark’s handwritten letter.
II. The trial court abused its discretion for failing to, at a
minimum, hold an evidentiary hearing as the evidence
1 We note that the Supreme Court of Ohio recently released [CITATION], Slip Opinion
No. 2023-Ohio-3448, which involved a motion for leave to file a motion for a new trial.
[CITATION] is a split decision without a majority. However, both the concurrence and the
dissent agree that, when denying a motion for leave to file a new-trial motion, trial courts
should, as a matter of best practice, make findings of fact and conclusions of law because
those determinations by the trial court and its reasoning are essential for the appellate
courts’ review of an appeal. Id. at ¶ 26 and 36. supporting Mr. Gibson’s new trial motion warranted
consideration in open court.
[SEGMENT 27]
A. The exhibits contained in state’s opposition considered with
the exhibits supporting Mr. Gibson’s motion demonstrate
why court intervention is necessary.
III. The trial court abused its discretion denying appellant’s motion
for leave to file a motion for new trial without having reviewed
the record.
IV. Hearsay and opinion statements independently filed by a
witness’s mother are not properly before the court.
V. The trial court erred in refusing to order the complete
handwriting analysis record while the trial court retained
jurisdiction.
As the issues raised in the first, second, third assignments are related, we discuss
them jointly.
Law and Standard of Review Regarding Motion for Leave to File a
Motion for New Trial
R.C. 2945.79 allows a defendant to file a motion for new trial based
on a claim that his substantial rights are materially affected by certain
circumstances. One such circumstance is when “new evidence is discovered
material to the defendant, which he could not with reasonable diligence have
discovered and produced at the trial.” R.C. 2945.79(F).
Crim.R. 33 provides the procedure for the motion for a new trial. It
states, in pertinent part:
(A) Grounds. A new trial may be granted on motion of the
defendant for any of the following causes affecting materially
the defendant’s substantial rights: ***
(6) When new evidence material to the defense is discovered
which the defendant could not with reasonable diligence have
discovered and produced at the trial. * * *
(B) Motion for new trial; form, time. Application for a new trial
shall be made by motion which, except for the cause of newly
discovered evidence, shall be filed within fourteen days after the
verdict was rendered, or the decision of the court where a trial
by jury has been waived, unless it is made to appear by clear
and convincing proof that the defendant was unavoidably
prevented from filing his motion for a new trial, in which case
the motion shall be filed within seven days from the order of the
court finding that the defendant was unavoidably prevented
from filing such motion within the time provided herein.
Motions for new trial on account of newly discovered evidence
shall be filed within one hundred twenty days after the day upon
which the verdict was rendered, or the decision of the court
where trial by jury has been waived. If it is made to appear by
clear and convincing proof that the defendant was
unavoidably prevented from the discovery of the evidence
upon which he must rely, such motion shall be filed within
seven days from an order of the court finding that he was
unavoidably prevented from discovering the evidence within
the one hundred twenty day period.
(Emphasis added.)
Under the rule, a new trial may be granted when the defendant’s
substantial rights are materially affected by the discovery of new evidence “material
to the defense.” Crim.R. 33(A)(6). Furthermore, when a motion for a new trial is
made on grounds of newly discovered evidence, the motion must be filed within 120
days after a verdict. Crim.R. 33(B). If a defendant files a motion for a new trial after
the expiration of that time, the defendant must first seek leave of the trial court to
file a delayed motion for a new trial. As the Second District explained in [CITATION] McConnell, [CITATION], “[a]llowing a
defendant to drag the process out while the evidence and the recollections of
witnesses become increasingly stale defies the very purpose of the criminal rules.”
To obtain leave to file a delayed new-trial motion, the defendant must
demonstrate “by clear and convincing proof that the defendant was unavoidably
prevented from filing his motion for a new trial[.]” Crim.R. 33(B). “[A] party is
unavoidably prevented from filing a motion for a new trial if the party had no
knowledge of the existence of the ground supporting the motion and could not have
learned of that existence within the time prescribed for filing the motion in the
exercise of reasonable diligence.” [CITATION]
Furthermore, a defendant is only entitled to a hearing on a motion for
leave to file a delayed motion for new trial if he submits documents that “on their
face support the claim of being unavoidably prevented from timely discovering the
new evidence.” [CITATION] citing [CITATION] and [CITATION] (leave may be summarily denied where neither
the motion nor its supporting affidavits embody prima facie evidence of unavoidable
delay). See also [CITATION]
====== Instruction (Completed) ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-miller', which should be replaced with `[CITATION]`. We review a trial court’s decision denying a motion for leave to file a
delayed motion for a new trial for an abuse of discretion. See, e.g., [CITATION]. The trial
court’s decision whether to hold an evidentiary hearing on such a motion is also
reviewed for an abuse of discretion. [CITATION].
Trial Court’s Denial Without a Hearing Was Not an Abuse of Discretion
To be granted leave to file a motion for new trial, Gibson must present
“new evidence material to the defense” that affects his substantial rights, Crim.R.
33(A)(6), and demonstrates by clear and convincing evidence that he was
unavoidably prevented from its discovery. Crim.R. 33(B). Clear and convincing
evidence is that which will produce in the trier of fact “a firm belief or conviction as
to the facts sought to be established.” [CITATION]. While it is a greater standard of proof
than a preponderance of the evidence, clear and convincing evidence requires less
than proof beyond a reasonable doubt. Id.
Regarding the alleged new evidence in the form of an affidavit from
Smith, Smith did not sign the purported affidavit. The absence of the affiant’s
signature calls into question the authenticity of the document.2 See, e.g., [CITATION].
2 “‘The general rule is that an affidavit must appear on its face to have been taken before
the proper officer, and in compliance with all legal requisitions.’” [CITATION] (the affiant did
not sign the affidavit attached to the motion for a new trial and therefore it lacked
evidentiary quality).
More importantly, however, even if Smith did sign the affidavit, the
alleged new evidence is not an affidavit from a recanting witness or an individual
who has any firsthand knowledge of the criminal events. The affidavit, even if
genuine, consists of hearsay statements from an affiant who alleged that he was told
by a witness that his testimony at trial was “shit” and would take back his testimony
if paid. In addition to the hearsay nature of the affidavit, the affiant’s reference to
his conversations with Clark about his trial testimony while both were held in the
Cuyahoga County Jail in 2011 is incongruous, given that Gibson’s trial took place in
June 2012. For these reasons, the affidavit lacks evidentiary value to constitute “new
evidence material to the defense” and its discovery would not “affect[] materially the
defendant’s substantial rights” for purposes of Crim.R. 33(A)(6). The trial court did
not abuse its discretion in denying Gibson’s motion for leave to file a new-trial
motion.
Similarly, the letter from “Mr. Clark,” if authentic, also lacks sufficient
evidentiary value to constitute material new evidence for purposes of
[CITATION]. The lack of signature indicates the
affidavit on its face was not taken under oath before the notary. [CITATION] (when an affidavit was not signed, it was
not made by the affiant under oath). [CITATION]. At the trial, two other codefendant testified to Gibson’s role in the
kidnapping and ransom scheme. In the letter, Clark appears to state that he would
testify differently if paid by Gibson, but did not specify what the testimony would be.
Even if the purported affidavit and the letter would be material new
evidence pursuant to [CITATION], Gibson must demonstrate by clear and convincing
proof that he was unavoidably prevented from filing his motion for a new trial within
120 days. [CITATION]. And, to be entitled to a hearing on the motion for leave, he
must submit documents that, on their face, support his claim that he was
unavoidably prevented from timely discovering the evidence in question.
Gibson alleges in his motion that he only discovered Smith’s
conversations with Clark “through the work of a private investigator in 2021” and
that his new counsel only started to represent him at this late postconviction stage.
He, however, submitted no affidavit from the alleged investigator, his counsel, or
Smith, or any documentary evidence, to explain the circumstances and timing of the
discovery of Smith and Clark’s conversations. Regarding the letter, Gibson claims
that “[t]here was no possibility that Gibson could have obtained this evidence until
it was unexpectedly sent to him by Clark.” The letter, however, was not dated and
there is nothing in the record to indicate when the letter was written.
Accordingly, the documents Gibson submitted in support of his
[SEGMENT 28]
motion for leave to file a delayed new-trial motion on their face do not demonstrate
he was avoidably prevented from a timely discovery. The trial court did not abuse
====== its discretion in denying Gibson’s motion without a hearing. The first, second, and
third assignments of error are without merit.
Other Documents
The fourth and fifth assignments of error relate to the letter
purportedly written by Clark and they concern two documents in the record. The
first is a letter Clark’s mother wrote to the court claiming her son did not write the
letter attributed to him. The second is a handwriting report obtained by the
prosecutor after the trial court denied Gibson’s motion. We address these two
assignments of error together.
Regarding the first document, the court’s docket reflects that, after
Gibson filed the motion claiming Clark falsely testified at trial, Anitra Brasfield,
Clark’s mother, filed a letter with the court. She stated that the letter allegedly
written by her son was a forged document and that she spoke to her son after Gibson
filed the motion and her son denied ever writing a letter to Gibson while incarcerated
in the Cuyahoga County Jail. Also, her son told her that Smith had approached him
and told him that Gibson was going to forge Clark’s signature and pay Smith to write
a statement against Clark. Under the fourth assignment of error, Gibson argues
Clark’s mother has no independent knowledge of the facts contained in the letter
and the letter should be stricken from the record. The record reflects that Gibson
never moved the trial court to strike the document, however.
Regarding the handwriting report, the record reflects that six days
after the trial court denied Gibson’s motion on September 13, 2022, the prosecutor
====== End of Document ====== sent an email to Gibson’s counsel, advising counsel that a handwriting report, which
had just become available to the prosecutor, concludes “support for same source”
regarding “the letter that Clark claimed he did not write.” The handwriting report
was attached to the email. Upon receiving the email and report, Gibson’s counsel
filed a “Motion for Order to Produce Complete Testing” on October 4, 2022, before
filing the instant notice of appeal. In the motion, Gibson asked the trial court to
order the state to file with the court the complete file regarding the handwriting test
and, additionally, the recorded jail call between Clark and his mother referenced in
Clark’s mother’s letter. The trial court did not rule on the motion. Under the fifth
assignment, Gibson argues the trial court erred in failing to grant the motion.
The issue presented in this appeal is whether Gibson was unavoidably
prevented from discovering new evidence material to his defense and entitled to
leave to file a motion for new trial. Those two documents are immaterial to the
instant appeal because our analysis and resolution of the issue does not depend on
whether the letter from Clark was forged. As we have explained in the foregoing,
The prosecutor’s email to the defense counsel states:
Please be advised the attached report was made available to myself today.
Umar Clark, Jr. did submit handwriting templars and compared to the letter
Clark claimed he did not write. The report indicates “Support for Same
Source” but is limited apparently due to the lack of original writings. The
report does not make a source identification. Although this report is being
disclosed to you, the State’s position regarding leave [to file a motion for a
new trial] remains unchanged. even if the letter is authentic, the trial court did not abuse its discretion in denying
the motion without a hearing. The fourth and fifth assignments of error are moot
due to our disposition of the first three assignments of error.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________________
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, A.J., and
SEAN C. GALLAGHER, J., CONCUR
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[Cite as [CITATION].]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112969
v. :
MONTEZ LOGAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 20, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-10-540250-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Owen Knapp, Assistant Prosecuting
Attorney, for appellee.
Kimberly Kendall Corral, and Gabrielle M. Ploplis, for
appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Defendant-appellant Montez Logan (“Logan”) appeals from the trial
court’s denial of his motion for leave to file a motion for new trial without an
evidentiary hearing. For the reasons that follow, we affirm. I. Factual and Procedural History
This appeal stems from an August 2010 case in which Logan and his
codefendant, Demetrius Allen (“Allen”), were charged in a seven-count indictment:
Count 1, aggravated murder of Miley Slaughter (“Slaughter”); Count 2, aggravated
murder of Kenneth Green (“Green”); Count 3, attempted aggravated murder of
Timothy Sisson (“Sisson”); Count 4, attempted aggravated murder of Antwon
Weems (“Weems”); Count 5, attempted aggravated murder of Willie Tyson
(“Tyson”); and Counts 6 and 7, having a weapon while under disability.
The facts in this matter were previously summarized by this court in
Logan’s direct appeal, as follows:
On July 17, 2010, Slaughter, Green, Sisson, Weems, and Tyson were
socializing outside of Eric Brown’s (“Brown”) house located near the
intersection of East 123rd Street and Signet Avenue in Cleveland[,
Ohio]. The five men were gathered by Sisson’s car, which was parked
on the street. Tyson and Green were sitting on milk crates on the
sidewalk near Sisson’s car and in front of Brown’s house. At
approximately 8:30 p.m., the group of men were ambushed by two
men, later identified as Logan and Allen.
Brown testified that he observed Slaughter, Green, Sisson, Weems, and
Tyson outside his home on the evening of July 17, 2010. He then heard
gunshots and looked outside from his front window. He observed Allen
running across the sidewalk and Brown’s lawn, shooting an “SK” or an
“AK” automatic gun. Slaughter was shot and fell on his back, landing
on Brown’s driveway. Tyson and Green then ran up Brown’s driveway.
Allen stood over Slaughter, told him “I got your [b**** a**],” and shot
Slaughter again. Brown then pulled his front curtain shut and got down
on the floor. Once the gunfire ceased, Brown went outside and
observed Slaughter dead in his driveway. Brown also observed Green
lying down in his backyard. Brown took off his shirt and applied
pressure to Green’s wounds until the paramedics arrived.
Brown testified that he did not observe Logan shoot anyone, but that
Logan had something in his hand. Brown could not see what it was because he could only see Logan from his chest up. He further testified
that Logan acted together with Allen. Brown testified that Logan was
“hyped up shooting * * * Logan * * * was like yeah, yeah, yeah. You
could tell they were together. They were the only two out there.” Brown
further testified that he heard more than 15 gunshots that night.
Brown recognized Allen from the neighborhood, but did not know his
name. Initially, Brown was hesitant to speak with the police. Brown
did not want to be labeled a “snitch.” However, Brown eventually spoke
with the police. Brown identified both Allen and Logan as the
assailants in a photo array and in court.
Weems testified that he was leaning on Sisson’s car when he heard
gunshots. He was shot in his right foot and ran away in the same
direction as Sisson. He testified that he saw Allen with a gun. He
further testified that he observed Slaughter fall to the ground. Weems
testified that he knew Logan and Allen. Weems went to high school
with Logan and knew the mother of Allen’s child. Weems testified that
initially he was hesitant to speak with the police, indicating that he
wanted to avenge the crime himself. However, Weems eventually gave
a statement to the police and identified both Allen and Logan as the
assailants in a photo array and in court.
Sisson testified that the five of them were gathered outside his car when
he heard gunshots. At first, he heard three gunshots, then he heard a
rapid succession of gunshots. He observed Allen with a gun. Slaughter
was shot and lying on the ground. Weems was also shot. Sisson
testified that Weems’s “foot was shot off.” Sisson ran away from the
gunfire. He testified that his foot was grazed by a bullet and that he had
to go to the hospital for treatment.
Tyson testified that both Logan and Allen began shooting at them.
Tyson and Green tried to escape by running up Brown’s driveway, but
Green was shot and could not keep up with Tyson. Tyson hid in a
neighbor’s garage until the gunfire ceased. When he returned to the
scene, he found Slaughter dead in Brown’s driveway and Green lying
on the ground in Brown’s backyard.
Logan and codefendant Allen both testified on their own behalf. Logan
testified that Allen and he are like brothers. On July 17, 2020, they
picked up Allen’s brother, Deandre Allen (“Deandre”), and Deandre’s
friend, Dapolo Green (“Dapolo”), at East 118th Street and Kinsman.
Allen was driving a van. The four of them went to a shoe store located
at the intersection of Harvard and Lee Road. They were at the shoe store for approximately 30 minutes. Allen and Logan then drove
Deandre and Dapolo back to Allen and Deandre’s home in Garfield
Heights. After that, they drove to a liquor store and returned to their
friend’s house on East 93rd and Aetna in Cleveland. Logan testified
that he heard about the shooting after he arrived at his friend’s house.
His friend received a call around 9:00 p.m. and relayed the information
to Allen and Logan. Logan denied shooting at the victims, testifying
that Allen and he were selling drugs that night and making money.
Allen also testified that Logan and he picked up Deandre and Dapolo at
East 118th Street and Kinsman around 6:30 p.m. The four of them
went to a shoe store for approximately 30 minutes. Allen and Logan
then drove Deandre and Dapolo back home in Garfield Heights at
approximately 8:00 p.m. After that, they stopped at a liquor store
before 9:00 p.m. and returned to their friend’s house on East 93rd and
Aetna. Allen also testified that he heard about the shooting after he
arrived at his friend’s house. Allen also denied shooting at the victims,
testifying that Logan and he were selling drugs that night and making
money.
Deandre testified as an alibi witness. Deandre testified that on July 17,
2010, Deandre and Dapolo, who is Green’s cousin, met Allen and Logan
around 6:30 p.m. at East 118th and Kinsman. Allen drove Logan,
Deandre, and Dapolo to the shoe store around 7:00 p.m., where they
stayed for a half-hour. Allen and Logan then drove Deandre and
Dapolo back to Garfield Heights around 8:30 p.m. Deandre testified
that neither Allen nor Logan were outside of his presence from the time
they met at the shoe store until they dropped him off back home.
Deandre denied riding a bicycle by Cook’s house on July 16, 2010. He
further denied speaking with Dapolo that day, advising Dapolo that
Allen and his friends are going to come and “shoot the block up.”
On cross-examination, Deandre admitted that he was only with Allen
and Logan for a short time on the night in question. Deandre testified
that the first time he saw Allen and Logan that day was at 6:30 p.m. He
further testified that he did not see them again that night after they
brought him back home at approximately 8:20 p.m.
The state called Dapolo as a rebuttal witness. Dapolo testified that on
July 16, 2010, he was gathered outside Cook’s house with Green,
Slaughter, Tyson, and Weems when Deandre came by riding a bike.
Deandre asked to speak with Dapolo. After they spoke, Dapolo
returned to Cook’s house and spoke with Green and Slaughter. Dapolo
testified that on July 17, 2010, he met up with Deandre at East 118th and Kinsman, where Allen and Logan picked them up and took them
to the shoe store. They were at the shoe store for about [a] half-hour
and then they drove back to Allen and Deandre’s home. Dapolo then
walked to the corner store and returned back to Deandre’s house.
When he returned, Deandre was the only one there, Allen and Logan
had left.
[SEGMENT 2]
[CITATION] (“Logan I”).
Also relevant to this appeal, Weems specifically testified at trial that
while he was in the hospital receiving treatment, Christopher Perkins (“Perkins”)
visited him in the hospital and relayed to him that Logan and Allen were the parties
involved in the shooting. (Tr. 1344-1345, 1411.) Even though Weems had gone to
high school with Logan and knew Allen through a mutual acquaintance, he did not
remember Logan’s and Allen’s names until Perkins reminded him. Perkins did not
participate in the trial, and investigators denied ever interviewing him in connection
with this incident, despite learning his name from Weems. (Tr. 1756.)
At the close of trial, a jury found Logan guilty of all charges and
specifications, and Logan received a sentence of 46 years to life, which this court
affirmed in [CITATION]. Id. at ¶ 2, 17. The Ohio Supreme Court declined to review our
decision in [CITATION]. This court also denied
Logan’s application to reopen [CITATION].
On April 7, 2023, Logan filed a motion for leave to file a motion for new
trial. Logan’s motion was premised on “potentially favorable information” — an
affidavit prepared by Perkins averring that he did not visit Weems in the hospital following the incident, as well as an affidavit signed by Weems, corroborating that
he was untruthful in stating that Perkins told him the identities of Logan and Allen.
Weems’s affidavit, dated November 5, 2021, averred:
I, Anton Weems, swear that I voluntarily provided this statement to
[private investigator] Tom Pavlish.
I knew Montez Logan & Demetrius Allen from the neighborhood. I
went to school with Montez. I never had problems with neither men
[sic].
I did not see who shot any of us on July 17, 2010. Chris Perkins NEVER
saw me in the hospital.
I only identified Tez & DJ because the prosecutor told me that I would
get probation for [the] case I was locked up on.
They came to interview me before this. I only decided to lie for me [sic]
freedom.
All the information I gave the police was not first hand [sic] knowledge
of what I saw with my [own] eyes.
I deeply apologize for lying. I was just trying to get home.
(Emphasis in original.)
Perkins in his affidavit dated November 26, 2020, averred:
I, Chris Perkins, swear that I voluntarily provided this statement to
[private investigator] Tom Pavlish.
I was not present on July 17, 2010[,] when Miley Slaughter, Kenneth
Green and Antwon Weems were shot.
I never went to Metro Hospital to visit [Weems].
I never told him that Demetrius Allen or Montez Logan were the
shooters.
I have no idea why he is stating that I did. No one ever interviewed me about this incident.
In addition to the Perkins and Weems affidavits, Logan included
records from Garfield Heights Municipal Court (“the Garfield Heights records”)
showing that Dapolo was not completing his community service obligations on
July 17, 2010, as he testified at trial. This, according to Logan, raised questions
surrounding Dapolo’s credibility during trial.
It should be noted that Allen, Logan’s codefendant, filed a motion for
leave to file a motion for new trial premised on the exact same “newly discovered
evidence” that Logan premised his motion for leave to file a motion for new trial on:
the Perkins affidavit, the Weems affidavit, and the Garfield Heights records. The
trial court denied Allen’s motion for new trial, which was appealed to this court. This
court affirmed the denial in [CITATION].
On June 1, 2023, the State filed a brief in opposition to Logan’s motion
for leave to file a motion for new trial.
On June 13, 2023, the trial court denied Logan’s motion for leave to
file a motion for a new trial.
Logan filed a notice of appeal and presents five assignments of error
for our review:
I. The trial court abused its discretion in denying Montez Logan’s
motions for leave to file a motion for a new trial as the evidence
presented meets the requisite standard required under Crim.R. 33.
II. The trial court abused its discretion in failing to hold an evidentiary
hearing, as Logan established unavoidable prevention and the
affidavits presented meet the Calhoun standard. III. The trial court abused its discretion when it failed to hold an
evidentiary hearing, especially in light of the state’s opposition
evidencing a misunderstanding of Brady.
IV. The trial court abused its discretion as evidenced by failing to
identify the correct legal standard or state findings demonstrating its
application of the correct legal standard.
V. It is a per se abuse of discretion when the court gives dispositive
weight to judicial efficiency over every other princip[le] and purpose of
criminal justice.
II. Law and Analysis
Before discussing the assigned errors, we find it necessary to
emphasize the unique posture of Logan’s motion for leave to file a motion for new
trial. This court, in [CITATION], reviewed and considered
the same evidentiary materials attached to a motion for leave to file a motion for
new trial: the Perkins and Weems affidavits and the Garfield Heights records. It
would be simple for this court to cite [CITATION] as precedent, follow it, and affirm the
trial court’s denial of Logan’s motion for leave to file a motion for new trial. We note,
however, that while some of Logan’s arguments align with those that Allen advanced
that were rejected by this court, some are novel and characterized under different
precedents and standards. Therefore, this opinion will focus on Logan’s specific
arguments that differ from those addressed in [CITATION].
We note two differences between Allen’s and Logan’s motions for leave
to file a motion for new trial. Logan included the full transcript of private
investigator Tom Pavlish’s conversation with Weems, which Allen did not. Further,
Logan characterizes his “newly discovered evidence” under two precedential cases that were not argued or cited by Allen. Specifically, Logan characterizes the
affidavits and Garfield Heights records as persuasive under [CITATION], and [CITATION].
This court reviews the denial of a motion for leave to file a motion for
new trial for an abuse of discretion. [CITATION], citing [CITATION]. The decision on whether
to hold a hearing on the motion is also reviewed for an abuse of discretion. [CITATION], citing [CITATION]. The term abuse of discretion “implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” [CITATION]. An abuse of discretion occurs when a court exercises its judgment
in an unwarranted way regarding a matter over which it has discretionary authority.
[CITATION].
Crim.R. 33(A)(6) provides that a new trial may be granted on motion
of the defendant
[w]hen new evidence material to the defense is discovered which the
defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at
the hearing on the motion, in support thereof, the affidavits of the
witnesses by whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court may
postpone the hearing of the motion for such length of time as is
reasonable under all the circumstances of the case. The prosecuting
attorney may produce affidavits or other evidence to impeach the
affidavits of such witnesses. Crim.R. 33(B) provides that when a defendant wishes to file a motion
for new trial based on newly discovered evidence more than 120 days after a verdict
is rendered, the defendant must seek leave from the trial court to file a delayed
motion. [CITATION]. To obtain leave, the
defendant must clearly and convincingly demonstrate that they were unavoidably
prevented from filing their motion for a new trial. Id. ‘“Clear and convincing’
evidence is that ‘measure or degree of proof’ that ‘produce[s] in the mind of the trier
of facts a firm belief or conviction as to the facts sought to be established.’” [CITATION].
Therefore, the sole question before the trial
court “when considering whether to grant a motion for leave based on newly
discovered evidence is whether the defendant has established by clear and
convincing proof that he or she was unavoidably prevented from discovering the
evidence at issue within the time frame provided,” not the merits of the proposed
motion for a new trial. Id. at ¶ 22, citing [CITATION]. A defendant is entitled to a hearing on his or her motion for leave to
file a motion for new trial only if the submitted documents demonstrate that the
defendant was unavoidably prevented from timely discovering the grounds for the
motion. [CITATION].
Relevant to this matter are two distinct methods of demonstrating the
“unavoidably prevented” requirement. First, a defendant may make the required showing that he or she was
[SEGMENT 3]
“unavoidably prevented”1 from filing a timely motion for a new trial based on new
evidence by demonstrating that he or she was previously unaware of the evidence
on which the motion relies and could not have discovered it within the required time
by exercising reasonable diligence. Id. at ¶ 26, citing [CITATION]; Bethel at ¶ 21; [CITATION].
Second, a defendant may make the required showing by establishing
that the prosecution suppressed the evidence at issue. [CITATION], citing Bethel at ¶ 25. (“[W]hen a defendant seeks to assert a Brady
claim in an untimely or successive motion for postconviction relief, the defendant
satisfies the ‘unavoidably prevented’ requirement contained in R.C.
2953.23(A)(1)(a) by establishing that the prosecution suppressed the evidence on
which the defendant relies.”); Johnson at ¶ 16, 18 (a petitioner who files an untimely
or successive petition for postconviction relief may show that he or she was
unavoidably prevented from discovering the evidence on which the petition relies
“by establishing a violation under [CITATION] (“[A] defendant may satisfy the ‘unavoidably prevented’
requirement contained in Crim.R. 33(B) by establishing that the prosecution
suppressed the evidence on which the defendant would rely in seeking a new trial.”).
The Ohio Supreme Court has held that the “unavoidably prevented” requirement
in Crim.R. 33(B) is identical to the “unavoidably prevented” standard as espoused in R.C.
2953.23(A)(1), governing postconviction-relief petitions. As such, caselaw cited herein
dealing with our analysis of the “unavoidably prevented” requirement may pertain to
either Crim.R. 33(B) or R.C. 2953.23(A)(1). [CITATION]. A. “Unavoidable Prevention” Required Under Crim.R. 33
Logan’s first assignment of error addresses the first method of
demonstrating that a defendant was “unavoidably prevented” from discovering the
evidence advanced in a motion for leave to file a motion for new trial, as espoused
in Crim.R. 33.
Logan’s arguments relating to this first method are nearly identical to
those advanced by [CITATION].
In reference to the affidavits, Logan argues that he “did not learn of
the witnesses’ decision to come forward and do the right thing until after the 120-
day window ha[d] closed.” This court was not persuaded by these arguments when
[CITATION] advanced them and is unpersuaded by Logan’s attempts to argue them now.
Indeed, the [CITATION] Court’s conclusion that “there is no evidence in the record
detailing [CITATION]'s efforts, if any, to timely obtain an affidavit from Perkins or Weems
or establishing why any such efforts would have been unavailing,” holds true for
Logan as well. [CITATION], 2024-Ohio-970, at ¶ 34 (8th Dist.).
Unlike [CITATION], however, Logan cites the interview transcript between
private investigator Tom Pavlish and Weems wherein Weems “explicitly provided
that he testified falsely against Logan in order to secure a deal with the prosecution
and ensure his freedom pursuant to unrelated charges.” Despite this extra piece of
evidence, we are unpersuaded that this “moves the needle” so as to demonstrate that
Logan is entitled to leave while [CITATION] was not. Logan also references the photo lineups shown to Weems and Brown
and argues that several issues such as two different photographic lineups and media
exposure tainted these identifications, which in turn “demonstrate[s] why the trial
court should have considered the affidavits of Weems and Perkins in support of his
motion [as] more credible than the state’s evidence as presented at trial.” (Emphasis
in original.) Put simply, this argument is speculative and unsupported by any
evidence provided. After thorough and careful consideration of this argument, we
cannot say that the trial court abused its discretion in rejecting this argument and
declining to grant leave.
In reference to the Garfield Heights records under this assignment of
error, we reference and incorporate the analysis set forth in [CITATION].
Based on the foregoing, we overrule Logan’s first assignment of error.
B. The Calhoun Standard for Affidavits
In his second assignment of error, Logan advances an argument that
the Perkins and Weems affidavits were credible under [CITATION], and therefore, should have been considered adequate under Crim.R. 33.
In [CITATION], the Ohio Supreme Court provided a list of factors for
courts to consider in assessing the credibility of a witness affidavit:
(1) whether the judge reviewing the postconviction relief petition also
presided at the trial, (2) whether multiple affidavits contain nearly
identical language, or otherwise appear to have been drafted by the
same person, (3) whether the affidavits contain or rely on hearsay, (4)
whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner’s efforts, and (5) whether the
affidavits contradict evidence proffered by the defense at trial.
Moreover, a trial court may find sworn testimony in an affidavit to be
contradicted by evidence in the record by the same witness, or to be
internally inconsistent, thereby weakening the credibility of that
testimony.
[CITATION] at 285, citing [CITATION].
After a careful review of the affidavits, we find that we need not reach
the issue of credibility because the contents of the affidavits, even if found credible,
fail to demonstrate a prima facie claim that Logan was unavoidably prevented from
discovering the content therein. We cite all of the analysis employed under the first
assignment of error, but also note the following specific to the nature of the
affidavits.
In reviewing Weems’s affidavit, we note that it is to be treated as an
affidavit recanting Weems’s initial testimony. At trial, Weems maintained that
Perkins visited him in the hospital and “reminded” him of the names of Allen and
Logan, two people who he recognized but was not able to name. In his affidavit,
Weems maintains that Perkins did not visit him in the hospital and that he went
along with the State’s case to receive favorable treatment for one of his own cases.
This directly contradicts his testimony at trial that he had not received any favorable
treatment in exchange for his testimony.2 Evidence that merely contradicts former
Weems verified several times at trial that he was not coerced into or promised
anything in exchange for his testimony:
[THE STATE]: Mr. Weems, were you promised anything to get you to come
in here and testify? evidence is insufficient under Crim.R. 33. [CITATION], ¶ 24 (8th
Dist.), citing [CITATION], ¶ 54 (8th Dist.).
Further reviewing the affidavits, in [CITATION], at ¶ 27,
the Ohio Supreme Court held that a petitioner must “submit evidence of specific
facts beyond the supporting affidavit’s date to explain why the petitioner was unable
to timely obtain an affidavit from the recanting witness.” This is exactly the
argument that Logan relies on.
Logan argues that he was prevented from obtaining these affidavits
unless and until Weems came forward. We found this argument insufficient in [CITATION]
(8th Dist.), and we find it insufficient here as well. Even
considering the transcript from the interview with Tom Pavlish, we again conclude
that it does little to move the needle in establishing the “unavoidably prevented”
[WEEMS]: No, sir.
[THE STATE]: Did I or the police department or anybody promise to do
anything for you in return for you coming in and cooperating?
[WEEMS]: No, sir.
(Tr. 1351.)
[THE STATE]: Did anyone tell you what to say here?
[WEEMS]: No, sir.
[THE STATE]: When you met with me, did I tell you what to say?
[WEEMS]: No, sir.
(Tr. 1416.) requirement. This is especially persuasive because Weems was not under oath
during the interview, and his affidavit avers only that he was “trying to get home,”
without elaborating on any potential deal he was offered or even any details
regarding the supposedly outstanding case that Weems had at the time.
The Perkins affidavit is not a recantation because Perkins never
testified at trial. However, as we concluded in [CITATION], “Allen and his defense
attorneys were well aware of the existence of Perkins and his role in the case at the
time of trial — if not before. Multiple witnesses, including Weems and police
detectives, testified regarding the fact Perkins had allegedly told Weems the names
of the men involved in the shooting.” Id. at ¶ 36. We again reiterate that pursuant
to [CITATION] and [CITATION], merely contradictory evidence, without more, is not
sufficient to support a motion for new trial.
Without even considering the credibility of the affidavits, we are
unable to conclude, based on the contents alone, that they meet the threshold
standard that Logan bore the burden of proving to demonstrate that he was
[SEGMENT 4]
unavoidably prevented from discovering the contents of the affidavits. Accordingly,
we need not and refuse to reach any credibility conclusions about the affidavits
themselves pursuant to [CITATION].
Logan’s second assignment of error is overruled.
C. Brady Material
In his third assignment of error, Logan argues that the Garfield
Heights records constitute Brady material and therefore, satisfy the second method of showing that the defendant was “unavoidably prevented” from discovering the
evidence at issue. Allen did not characterize this evidence as Brady material, so we
proceed to analyze the Garfield Heights records under the Brady standard.
In `[CITATION]`, the Supreme Court of the United States held
that “a state violates the Fourteenth Amendment to the United States Constitution
when it ‘withholds evidence that is favorable to the defense and material to the
defendant’s guilt or punishment.’” `[CITATION]`, at ¶ 19, quoting `[CITATION]` (summarizing Brady’s holding). Further, there are
three components of a true Brady violation: “‘the evidence must be favorable to the
accused, either because it is exculpatory or because it is impeaching; the evidence
must have been suppressed by the state, either willfully or inadvertently; and
prejudice must have ensued.’” Id., quoting `[CITATION]`.
While a Brady violation can form the basis for a motion for leave to
file a motion for new trial, Logan has not made a prima facie showing of a Brady
violation here. With respect to evidence regarding Dapolo’s community service, we
note that this evidence was a public record that was equally available to the
prosecution and defense at the time of the trial. `[CITATION]`, quoting `[CITATION]`
(“Brady does not apply to materials that are not ‘wholly within the control of the
prosecution.’”). It is specious to claim that the State either willfully or inadvertently
withheld this information, and it is even more specious to suggest, without more, that misremembering a detail such as a date that Dapolo had been engaging in
community service prejudiced Logan. Further, Dapolo’s testimony about his
community service obligations was subject to cross-examination at trial.
Finding no merit in Logan’s Brady argument, Logan’s third
assignment of error is overruled.
D. Factual Findings and Judicial Efficiency
In Logan’s fourth assignment of error, he argues that the trial court
abused its discretion by failing to identify the correct legal standard or state findings
demonstrating its application of the correct legal standard. In Logan’s fifth
assignment of error, he argues that it is a per se abuse of discretion when the court
gives dispositive weight to judicial efficiency over every other principle and purpose
of criminal justice. We address these assignments of error together for ease of
discussion.
This court has recently concluded that while it is a “best practice” for
a trial court to issue findings of fact and conclusions of law in connection with
motions for leave to file a motion for new trial, it is not explicitly required by Crim.R.
33. [CITATION] (8th Dist.), citing [CITATION] (8th Dist.); [CITATION] (10th Dist.).
Smith also cites to [CITATION], which interpreted the Ohio Supreme Court’s decision in [CITATION],
as “a split decision without a majority” but indicating, by agreement of the
concurrence and dissent, that trial courts should making findings of fact and conclusions of law when deciding whether to grant leave to file a motion for new
trial.
In the absence of any findings of fact or conclusions of law, the record
is devoid of the trial court’s reasoning for its denial of Logan’s motion. Despite this,
Logan’s fifth assignment of error is based on his unfounded perception that the trial
court’s ruling was based on nothing more than judicial efficiency. Because this
perception is not based on anything in the record, we find this argument meritless
and summarily overrule it.
Logan’s fourth and fifth assignments of error are overruled.
III. Conclusion
The trial court did not abuse its discretion in concluding that Logan
did not meet the evidentiary standard required for a hearing on his motion for leave
to file a motion for new trial, nor did the trial court abuse its discretion in failing to
hold a hearing on such motion because the motion for leave did not indicate that a
hearing was necessary.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, JUDGE
KATHLEEN ANN KEOUGH, A.J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION)
MARY EILEEN KILBANE, J., DISSENTING:
I respectfully dissent from the majority opinion. I would reverse the
trial court’s denial of Logan’s motion for leave to file a motion for a new trial without
an evidentiary hearing and remand the case.
Specifically, I disagree with the majority’s analysis regarding Logan’s
Brady claims. “[W]hen a defendant seeks to assert a Brady claim in an untimely or
successive motion for postconviction relief, the defendant satisfies the ‘unavoidably
prevented’ requirement contained in R.C. 2953.23(A)(1)(a) by establishing that the
prosecution suppressed the evidence on which the defendant relies.” [CITATION],
quoting [CITATION].
Unlike in [CITATION], Logan characterizes the new evidence in his motion
as Brady material. Specifically, Logan argues that both Weems’s assertion that he
testified against Logan in exchange for favorable treatment in his own unrelated
case, as well as the Garfield Heights documents regarding Dapolo’s community
service, constitute Brady material. The majority’s analysis of Logan’s Brady claims is limited to the Garfield Heights documents. I believe that Weems’s affidavit, in
which he not only recants his trial testimony but specifically asserts that he testified
against Logan in exchange for favorable treatment from the State of Ohio,
demonstrates a prima facie showing of a Brady violation.
In support of his motion for leave, Logan attached an affidavit from
Weems and a transcript of Pavlish’s interview with Weems showing that Weems’s
testimony against Logan at trial was motivated by Weems’s desire to resolve his own
unrelated criminal cases. Indeed, following the trial in the instant case, Weems’s
cases were resolved. While the State argues that Weems is unable to provide any
additional details about his alleged plea deal with the State, we note that this sort of
information is exactly the type that the trial court would be able to elicit at an
evidentiary hearing on Logan’s motion.
Therefore, I would find that the trial court abused its discretion in
denying Logan’s motion for leave to file a motion for a new trial without an
evidentiary hearing.
For these reasons, I respectfully dissent.
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112701
v. :
ASHLEY GAINES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 4, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-666719-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Halie Turigliatti, Assistant Prosecuting
Attorney, for appellee.
Gregory T. Stralka, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Ashley Gaines (“Gaines”) appeals her
convictions for felonious assault. For the reasons that follow, we affirm. Procedural and Factual History
Statement of Facts
Gaines and Allison Fadel (“Fadel”), who are sisters, were indicted on
February 22, 2022, on two counts of felonious assault, second-degree felonies, in
violation of R.C. 2903.11(A). The charges stemmed from a fight on November 7,
2021, involving Gaines, Fadel, Sheena Walcott (“Sheena”), and Shawnee Walcott
(“Shawnee”) (collectively “Walcott sisters”). Gaines and Fadel pled not guilty, and
after several pretrials, the matters were set for a joint trial.
During discovery, the state obtained a search warrant for an
Instagram page purportedly linked to Fadel. The state intended to introduce 35
pages from the warrant return of over ten thousand pages. Gaines objected to the
introduction of Fadel’s Instagram pages because they were not authenticated.
The jury trial commenced on April 4, 2023. The testimony revealed
the following undisputed facts. In the early hours of November 7, 2021, the Walcott
sisters attended a birthday party at the Ken Ferguson Party Center in Cleveland,
[SEGMENT 5]
Ohio. They drove separately but walked into the party together at approximately
1:00 a.m. Once inside the party center, they noticed Fadel and Gaines were at the
back of the room. Shawnee was off to the side, and Sheena was dancing in the
middle of the dance floor.
The state offered two versions of the same video into evidence. (Tr. 7.)
The first depicted Gaines on top of Shawnee, who was on the ground, hitting her
several times on her face. Sheena was also on the ground in the video, and Fadel was standing up. The video was approximately 12 seconds long. The other video
was a copy of the first, but in slow motion.
At trial, the state called Shawnee and Sheena Walcott and Detective
Timothy Hannon. Both codefendants, Gaines and Fadel, testified on their own
behalf. Each of the women testified to the following versions of the disputed facts
concerning the altercation.
Shawnee Walcott
Shawnee described her relationship with Gaines as, “So I have no
relationship. I seen her a few times.” (Tr. 438.) Shawnee met Gaines through her
sister Sheena, but they had never conversed. Prior to the fight, she sent an
Instagram message to Gaines canceling a massage appointment. Gaines did not
respond to that message. Shawnee testified that on September 18, 2021, she
attended a party with Fadel. She described Gaines’ reaction to seeing her as
“[Gaines] lit up when she seen me and my sister.” (Tr. 465.) This was the first time
she had seen Gaines up close, and the extent of their interaction was Shawnee
complimenting Gaines’ outfit with no response from Gaines. Gaines never spoke a
word to Shawnee, including the night of the altercation.
Okay. And now on this particular day having had no prior incidents
with you, she comes out of nowhere and starts beating you up?
SHAWNEE: No. They bullied us prior.
Q: You said you never had words with my client, Ashley Gaines, so let’s
talk about Ashley Gaines.
SHAWNEE: Yes, I’m talking about her. Q: She’s never had words with you, correct, per your testimony or is
that not your testimony now?
SHAWNEE: Yes, that is my testimony.
Q: All right. So she’s never had words with you, including the date of
this incident —
SHAWNEE: Correct.
Q: — Correct? But this day, without words ever, she just attacked you
for no reason, is that your testimony?
SHAWNEE: Yes. * * *
[CITATION]
Despite Gaines never speaking to her, Shawnee felt she had to steer
clear of Gaines and Fadel due to bullying. She stated:
A: We stayed clear because they were — me and my sister, Shawnee,
stayed clear of Allison and Ashley because they were bullying us in the
flesh.
[CITATION]
Shawnee described the moments leading up to the fight. She saw
Fadel and Gaines “move in” toward them. Fadel and Gaines proceeded from the
back of the room to the dance floor, with Fadel heading towards where Sheena was
dancing and Gaines moving toward Shawnee. Fadel began dancing in a
“disrespectful” manner and pointing at Sheena as she moved toward her. Shawnee
testified that Gaines approached her from behind. [CITATION] As Shawnee
watched Fadel move toward Sheena, she felt contact on the right side of her face.
Shawnee said that she realized Gaines was assaulting her after the first hit. [CITATION]
====== End of Part ====== Shawnee explained that Gaines hit her with “a tool.” Shawnee did not see a tool but
said the next morning, “I actually had the taste of whatever she had on her hand in
my mouth.” [CITATION]
Q: Okay. And were you able to see anything in her hand during this
altercation?
A: No, because I was unconscious. My right eye, after everything, it
was almost swollen shut because she kept hitting me in it over and
over.
[CITATION] Shawnee stated that she lost consciousness right away and was not even
aware that she was on the ground until she saw the video. [CITATION]
Q: So, would you say you kind of started to lose consciousness after
how many hits?
SHAWNEE: Right away. I didn’t even know where I was. I had an out-
of-body experience. I couldn’t figure out why can’t I defend myself
better. I know size doesn’t matter, but there’s no way it would have
been a complete blowout like that. I knew I couldn’t do anything.
[CITATION]
***
Q: Okay. I want to address the cut on your left leg. Now, do you recall
every moment of this fight?
SHAWNEE: I was unconscious the whole time, like, right away, so
there’s, like — it was, like, flashing before my eyes.
[CITATION]
All of the blows were to the right side of Shawnee’s face, and Gaines
targeted her right temple. [CITATION] At some point, Gaines sliced Shawnee’s leg
with some sort of tool, chipped her teeth, and stomped her pelvis. After the first blow, Shawnee was unconscious throughout the rest of the altercation. (Tr. 392-
393.)
When asked about her sister’s fight, Shawnee testified that she did not
see it and was not even aware Sheena was fighting when it was happening. (Tr. 401.)
Shawnee never saw Fadel during the entire altercation, which she said lasted for six
to eight minutes. On November 17, 2021, she received an anonymous text message
with a video depicting twelve seconds of the fight. Shawnee forwarded the video to
Sheena and then deleted it from her phone. Shawnee did not provide the video nor
the sender’s phone number to the police before she deleted it.
Ashley Gaines
Gaines testified that she sometimes saw Shawnee and Sheena at
parties but never interacted with them. The evening of the fight, Gaines was on the
dance floor when she observed a commotion. (Tr. 567.) She looked for her sister
and quickly realized Fadel was fighting. As she tried to get to Fadel, Shawnee
grabbed her hair, and the two began fighting. They fell to the floor and exchanged
kicks as a man pulled Gaines off of Shawnee. According to Gaines, the fight lasted
less than a minute, and she and Fadel remained at the party after the altercation.
Sheena Walcott
Sheena testified that she noticed Fadel and Gaines at the back of the
party center. Later, she saw Fadel walk up to the dance floor but had no idea where
Gaines was at that time. As she was walking away, Fadel hit her from behind in her
left eye and several times on the left side of her face. The medical records indicated that Sheena believed she was hit by fists and no weapons were involved. She was
diagnosed with a broken orbital bone and nose and post-concussion syndrome.
(State’s exhibit No. 3.)
Allison Fadel
Fadel testified that she is a performer/dancer in the local Caribbean
music scene. She met the Walcott sisters while performing. Fadel and the Walcott
sisters became friends, and they would sometimes perform together. Their
friendship ended a few months before the altercation. On October 22, 2021, Sheena
pushed Fadel over while she was balancing on her head, and she broke her wrist.
Fadel was still in a cast the night of the altercation.
On the night of the fight, Fadel arrived at the party center around
11:30 p.m. She was supposed to perform at the party but had to withdraw after
breaking her wrist. Fadel testified that she was not aware that the Walcott sisters
were at the party until she was pushed by Sheena on the dance floor, poked in her
face multiple times, and then “yoked her up.” (Tr. [CITATION].) When Fadel pushed
her off, Shawnee punched Fadel. At that point, Fadel was fighting both of the
Walcott sisters until “one was pulled off and Sheena was left.” (Tr. [CITATION].) The
state questioned Fadel about a message she sent to someone on Instagram where
she described what happened.
Q: Okay. So you’re saying — this is on page 196 of Exhibit 1-A — that
she kept fucking with me and walking past me and then she pushed my
shoulder, so I told her not to be playing with me because I will beat your
ass tonight and she put her finger in my face, so I choked her and I saw
her sister coming out of the corner of my eyes so I punched her. Carried on to say, I beat the one I was already choking. So you’re saying that
your talk-to-text just corrected Chuck to choking twice?
FADEL: Autocorrect.
(Tr. 553.) Fadel testified that Sheena started the fight and that she was fighting both
Walcott sisters before Gaines intervened.
Detective Timothy Hannon
[SEGMENT 6]
Detective Hannon testified that Detective Nykolai Przybylaski was the
original detective on the case, but he retired. Detective Hannon read several pages
into the record from state’s exhibit No. 1, which consisted of 10,000 pages of Fadel’s
Instagram messages that were returned in response to a search warrant. Detective
Hannon explained that he had received a call from the prosecutor’s office less than
a week before, asking him to handle the case because they had no one to testify.
Detective Hannon reviewed the file but did not have time to investigate or interview
anyone concerning the case. (Tr. 499.)
Gaines and Fadel were both found guilty of two counts of felonious
assault, felonies of the second degree, in violation of R.C. 2903.11(A)(1). The trial
court imposed a sentence of four to six years in prison on both Gaines and Fadel on
April 27, 2023.
Gaines raises the following assignments of error on appeal:
Assignment of Error No. 1
The trial court erred by admitting into evidence, over objection, altered
electronic media of the alleged incident without sufficient foundation. Assignment of Error No. 2
The appellant’s constitutional right to effective assistance of counsel
was violated when such counsel failed to object to inadmissible
evidence.
Assignment of Error No. 3
The jury’s verdict finding the appellant guilty of felonious assault in
Count 1 of the indictment is against the manifest weight of the evidence
since the appellant had no contact with the alleged victim.
Law and Analysis
In her first assignment of error, Gaines challenges the admissibility
of Instagram messages, purportedly from Fadel’s account, and two videos depicting
twelve seconds of the fight. Gaines argues that the Instagram messages
impermissibly incriminated her in violation of the Confrontation Clause.
Additionally, Gaines asserts that the Instagram messages and two videos were not
properly authenticated.
The admission or exclusion of evidence is within the sound discretion
of the trial court and will not be reversed absent an abuse of discretion. [CITATION]
Furthermore, this abuse of discretion must have materially prejudiced the defendant. [CITATION]
The authentication of evidence is a prerequisite to its admissibility.
[CITATION] The proponent of the evidence must offer sufficient evidence that the matter is what it claims to be. However, conclusive proof is not required.
Id.
Gaines argues that the Instagram messages are not admissible for two
reasons. First, Gaines claims that the messages were allegedly written by Fadel and
incriminated Gaines in violation of the Bruton rule. The rule establishes procedures
for handling inculpatory statements made by codefendants in a joint jury trial. See
[CITATION].
In [CITATION], the United States Supreme Court held that in a joint jury
trial, confessions made by a codefendant who does not testify are inadmissible
against the other defendant because that defendant has no opportunity to cross-
examine the confessing codefendant. [CITATION].
However, the Bruton rule is not applicable unless the codefendant
who made the admissions exercises their constitutional right not to testify, and
indirect references are cured by a limiting instruction to the jury. [CITATION].
See [CITATION].
(indirect references to the defendant are permissible as long as the jury is properly
instructed not to consider them against the nonconfessing defendant). Conversely,
when a codefendant does testify, the defendant has an opportunity to cross-examine
them, so Bruton is not implicated, and a limiting instruction is not necessary. Id.
At trial, Fadel testified, and Gaines was afforded an opportunity to cross-examine
her. Therefore, the Bruton rule was not implicated, and a limiting instruction to the jury was unwarranted. Accordingly, the Bruton rule is inapplicable to the Instagram
messages.
Gaines’ second challenge to the admissibility of the Instagram
messages alleges that the messages were not authenticated. The state asserts that
the messages were self-authenticated. The admissibility of evidence by self-
authentication is governed by Evid.R. 902. Domestic business records that are kept
in the ordinary course of business may be authenticated by a certification of the
custodian or another qualified person pursuant to Evid.R. 902(11). “Extrinsic
evidence of authenticity as a condition precedent to admissibility is not required”
for records accompanied by a certificate of acknowledgment executed in the manner
provided by Evid.R. 902. [CITATION], ¶ 57.
The certification must affirm that the records were made at or near the time by, or
from information transmitted by, a person with knowledge that the records are kept
in the course of a regularly conducted business activity and that it was the regular
practice of that business activity to make the record. Evid.R. 803.
In the instant case, the messages were obtained by search warrant
from the social media company Meta and included a written certification page. The
statements in the messages implicated both Fadel and Gaines in the assaults.
Moreover, the messages were self-authenticating because the certification was from
the custodian of the records; the records were kept in the regular course of its
business; made by someone with knowledge of the records and made at or near the
time the messages were created. Accordingly, the trial court did not abuse its discretion when it determined that the Instagram messages were properly
authenticated.
Additionally, Gaines argues that the videos of the altercation were
inadmissible because they were not authenticated. It is undisputed that the videos
were not self-authenticating. When demonstrative evidence is not self-
authenticating, the proponent of video or photographic evidence may authenticate
the evidence by witness testimony only if the witness has knowledge that “the matter
is what it claims to be.” [CITATION]
There are generally two methods of authenticating this type of
evidence. [CITATION] The first is “the silent witness theory.” Id., citing [CITATION] Under this theory, the evidence
speaks for itself; therefore, an independent sponsoring witness is not necessary. Id.
The evidence is admissible if there is sufficient proof of the reliability of the process
or system that produced the evidence. Id. at ¶ 14. Shawnee testified that an
anonymous source sent the video to her; she sent it to her sister and then deleted it
from her phone. She could offer no evidence concerning the reliability of the process
or explain who recorded the video. In this case, the videos could not be
authenticated under the silent witness theory. However, the videos could be admissible to corroborate witness testimony under the second theory of
authenticating demonstrative evidence.
The second theory of authenticating demonstrative evidence is the
“pictorial testimony theory.” [CITATION], at ¶ 32. Authentication under this theory involves testimony from a person
who was present during the events and observed what is depicted or someone who
filmed the image, authenticating the images or what the images depict at trial. Id.
Under this theory, the evidence is admissible only if a sponsoring witness can testify
that it is a fair and accurate representation of the subject matter based on that
witness’s personal observation. [CITATION], ¶ 153; see [CITATION].
In the instant case, neither Shawnee nor Sheena knew the anonymous
source of the video. Shawnee deleted the phone number that sent it. Additionally,
Shawnee could not testify that the video depicted what occurred during the
altercation because she testified that she was unconscious after the first blow.
Shawnee only became aware that she had been on the ground during the altercation
after she saw the video. Moreover, she could not say whether the original video had
been altered.
The state admitted that the second video was altered to render a slow-
motion version of the first video. Although Shawnee identified herself in the videos,
she could not say that the videos depicted an accurate representation of what
happened. Therefore, neither video could be authenticated. The trial court abused its discretion when it admitted the two videos depicting twelve seconds of the
altercation.
A trial court’s abuse of discretion must materially prejudice the
defendant to warrant a reversal. [CITATION], at ¶ 29, citing [CITATION],
citing [CITATION]. Gaines, Fadel,
and the Walcott sisters all testified that the video did not depict the entire fight. Each
of them offered a version of what took place. Gaines said the video accurately
depicted the end of the fight. Gaines was on the ground with Shawnee grabbing her
hair. Gaines explained to the jury her version of what took place during the
altercation, and the jury was free to weigh the credibility of all of the witnesses.
Therefore, we cannot say that the video was materially prejudicial.
Accordingly, the trial court’s admission of the video was a harmless
error. Gaines’ first assignment of error is overruled.
Ineffective Assistance of Counsel
Gaines argues in her second assignment of error that her trial counsel
was ineffective because they failed to object to inadmissible evidence. However,
Gaines’ argument is not supported by the record.
The test for establishing an ineffective assistance of counsel claim is
two-pronged. To succeed, Gaines must establish that 1) her counsel’s performance
was deficient and (2) the deficient performance prejudiced her so as to deprive
Gaines of a fair trial. See [CITATION] N.E.2d 242, ¶ 98, citing [CITATION]. “The failure to prove either prong of this two-part test makes it
[SEGMENT 7]
unnecessary for a court to consider the other prong.” [CITATION]
Gaines claims her counsel’s performance was deficient because they
failed to object or request a limiting instruction once the trial court permitted the
state to introduce statements in violation of the Bruton rule. Gaines argues that
statements made by Fadel in Instagram messages indirectly referenced her and
triggered the Bruton rule. Gaines’ name was redacted, but the messages included
language such as: “us,” “we,” “my sister,” and “our.”
The state sought to introduce several of these messages as admissions
of a party opponent under Evid.R. 801(D).
THE COURT: You mention the Bruton issue —
STATE: Correct.
THE COURT: — Statements made by Miss Fadel and Miss Gaines
regarding the other Defendant —
STATE: Yes.
THE COURT: — Implicating the other Defendant?
STATE: There are a few statements from Miss Fadel saying I’m the one
in the back and my sister, Miss Gaines, is the one in the front. I’ve taken
those out of the portions that I used for direct examination, obviously.
If they’re going to testify, that’s open for cross-examination, and I
would use the additional statements at that time.
THE COURT: All right. So you’ve redacted the implicating statements
by the Defendant of the other Defendant? STATE: Correct.
(Tr. 248-249.) After substantial discussion, the trial court issued rulings regarding
the admissibility and exclusion of several exhibits, and trial counsel did not object
to the admissibility of any exhibits on “Bruton grounds.” Nonetheless, the trial court
addressed the exhibits that contained potential Bruton implications. Furthermore,
Fadel’s decision to testify rendered the Bruton issue moot.
Gaines also claims her trial counsel’s performance was deficient
because they failed to object to the admissibility of two videos. However, the record
demonstrates the trial counsel’s objection. Regarding the videos, trial counsel
stated:
I concur, your Honor. We object to the admission of the video.
Everyone has testified that it’s not a full and accurate depiction of what
happened that evening. It’s amazing it only covers the part where our
client had an advantage. It doesn’t show how it started or why it
started, or anything of that nature.
(Tr. 584.)
As addressed in the first assignment of error, the trial court erred
when it admitted the videos. However, Gaines has failed to demonstrate that her
counsel’s performance was deficient because they did, in fact, object to the
admissibility of the videos. Therefore, we need not address the second prong.
Accordingly, Gaines’ second assignment of error is overruled. Manifest Weight
In her third assignment of error, Gaines argues the conviction of
felonious assault of Sheena Walcott is against the manifest weight of the evidence
because she had no contact with Sheena during the altercation. A manifest weight
challenge requires the reviewing court to sit as the “thirteenth juror” and to consider
the entire record. If, after weighing the credibility of the evidence and resolving any
conflicts, the reviewing court finds that the trier of fact lost its way, the verdict is
against the manifest weight of the evidence and must be reversed. [CITATION]. A reversal of a conviction,
based on a manifest weight challenge, must only happen in those exceptional cases
where the evidence weighs heavily against the conviction. [CITATION].
Although it is undisputed that Gaines made no physical contact with
Sheena, the conviction of felonious assault as it relates to Sheena Walcott was based
on complicity in violation of R.C. 2923.03(F). A person aids and abets another when
she supports, assists, encourages, cooperates with, advises, or incites the principal
in the commission of the crime and shares the criminal intent of the principal. [CITATION]. It is well established that criminal
intent may be inferred from presence, companionship, and conduct before and after
the offense is committed. Id.
====== End of the Court Ruling ====== Here, the trier of fact heard four very different versions of what
occurred leading up to and during the altercation. The jury was free to believe all,
none, or some of the evidence presented. We cannot say that the record lacks
competent and credible evidence to support Gaines’ guilty verdict of complicity in
committing felonious assault on Sheena Walcott. After careful consideration of all
of the evidence in the record, making reasonable inferences from it, and resolving
conflicts in the evidence, we cannot say the jury clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. [CITATION]
Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence. The provided text does not contain any court ruling citations that need to be replaced. The text appears to be a legal procedural entry related to court rulings or mandates and mentions judges and their concurrences on various assignments of error, rather than specific court ruling citations. Therefore, no changes are necessary.
Here is the text in its original form:
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS;
LISA B. FORBES, J., CONCURS WITH THE MAJORITY ON ASSIGNMENTS OF
ERROR NOS. 2 AND 3 AND CONCURS IN JUDGMENT ONLY ON ASSIGMENT
OF ERROR NO. 1
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-06-047
: OPINION
- vs -
/1/2024
:
TIMOTHY G. HALL, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 19CR035473
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Russell S. Bensing, for appellant.
HENDRICKSON, J.
{¶ 1} Appellant, Timothy G. Hall, appeals the decision of the Warren County Court
of Common Pleas summarily denying his petition for postconviction relief without a
hearing after a jury found him guilty of four counts of rape and three counts of sexual
battery that he perpetrated against his then preteen and teenaged stepdaughter, E.A., in
1995, 1997, and 1998. For the reasons outlined below, we affirm the trial court's decision. Warren CA2023-06-047
Facts and Procedural History
{¶ 2} On July 1, 2019, the Warren County Grand Jury returned an indictment
charging Hall with ten counts of first-degree felony rape in violation of R.C.
2907.02(A)(1)(b), 2907.02(A)(1)(c), or 2907.02(A)(2). The indictment also charged Hall
with seven counts of third-degree felony sexual battery in violation of R.C. 2907.03(A)(5).
The charges arose after it was alleged Hall had engaged in "sexual conduct" with two
minor children, his adopted daughter, A.Z., and his stepdaughter, E.A., during different
periods of the 1990s.
The Changing Definition of "Sexual Conduct" Under R.C. 2907.01(A)
{¶ 3} The Ohio Revised Code has provided several different definitions of "sexual
conduct" under R.C. 2907.01(A). Effective January 1, 1974, the term "sexual conduct"
was initially defined to mean:
vaginal intercourse between a male and female, anal
intercourse, fellatio, and cunnilingus between persons
regardless of sex. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
{¶ 4} However, effective September 3, 1996, the term "sexual conduct" was
revised to mean:
vaginal intercourse between a male and female; anal
intercourse, fellatio, and cunnilingus between persons
regardless of sex; and the insertion, however slight, of any
part of the body or any instrument, apparatus, or other object
into the vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or anal
intercourse.
(Emphasis added.)
{¶ 5} The definition of "sexual conduct" was revised in 1996 so that the offense
of felonious sexual penetration found under former R.C. 2907.12 would merge into the
offense of rape. See [CITATION], ¶
Warren CA2023-06-047
[SEGMENT 8]
12 (noting that after September 3, 1996 "conduct that would formerly have constituted
felonious sexual penetration was defined as 'sexual conduct' under R.C. 2907.01[A] and
became prohibited conduct under the rape statute"); [CITATION] (noting that the felonious sexual
penetration statute found under former R.C. 2907.12 "was repealed effective September
3, 1996, and the former conduct constituting [the offense of felonious sexual penetration]
was redefined as 'sexual conduct' and included in the new and current rape statute"); and
[CITATION] (noting that the purpose and effect of redefining the term "sexual
conduct" was to "specifically clarify that what formerly was defined as 'felonious sexual
penetration' [was] now rape").
{¶ 6} Effective March 10, 1998, the term "sexual conduct" under R.C. 2907.01(A)
was revised again to mean:
vaginal intercourse between a male and female; anal
intercourse, fellatio, and cunnilingus between persons
regardless of sex; and, without privilege to do so, the insertion,
however slight, of any part of the body or any instrument,
apparatus, or other object into the vaginal or anal opening of
another. Penetration, however slight, is sufficient to complete
vaginal or anal intercourse.
(Emphasis added.) There have been no further revisions to the definition of the term
"sexual conduct" under R.C. 2907.01(A) relevant to this appeal.
Hall's Five-Day Jury Trial
{¶ 7} On August 24 through August 28, 2020, the matter proceeded to a five-day
jury trial. When the trial started, Hall faced seven charges related to his alleged sexual
abuse of his adopted daughter, A.Z. Those charges were set forth in Counts 1, 2, 3, 4, 5,
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-miller', which should be replaced with `[CITATION]`. Warren CA2023-06-047
7, and 8 of the indictment.1 Count 1 charged Hall with raping A.Z. between July 1, 1991
through June 30, 1993 in violation of R.C. 2907.02(A)(1)(b). Pursuant to that statute, no
person shall engage in "sexual conduct" with another who is not the spouse of the
offender when "[t]he other person is less than thirteen years of age, whether or not the
offender knows the age of the other person." Counts 2, 4, and 7 charged Hall with raping
A.Z. between July 1, 1991 through June 30, 1993, July 1, 1993 through June 30, 1995,
and July 1, 1994 through June 30, 1996 in violation of R.C. 2907.02(A)(2). Pursuant to
that statute, "[n]o person shall engage in sexual conduct with another when the offender
purposely compels the other person to submit by force or threat of force." Counts 3, 5,
and 8 charged Hall with sexually battering A.Z. between July 1, 1991 through June 30,
1993, July 1, 1993 through June 30, 1995, and July 1, 1994 through June 30, 1996 in
violation of R.C. 2907.03(A)(5). Pursuant to that statute, no person shall engage in
"sexual conduct" with another, not the spouse of the offender, when "[t]he offender is the
other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or
person in loco parentis of the other person."
{¶ 8} Hall also faced seven charges related to his sexual abuse of his
stepdaughter, E.A. Those charges were set forth in Counts 9, 10, 11, 12, 13, 14, and 15
of the indictment. Count 9 charged Hall with raping E.A. between June 1, 1995 through
October 1, 1995 in violation of R.C. 2907.02(A)(1)(b), the same Revised Code section
Hall was alleged to have violated in Count 1. Count 10 charged Hall with raping E.A.
between June 1, 1995 through October 1, 1995 in violation of R.C. 2907.02(A)(2), the
same Revised Code section Hall was alleged to have violated in Counts 2 and 4. Count
1. We note, just as we did in our original decision affirming Hall's conviction on direct appeal, that Count 6,
which alleged Hall had raped A.Z. sometime between July 1, 1994 and June 30, 1996 in violation of R.C.
2907.02(A)(1)(c), was nolled by the state prior to trial.
Warren CA2023-06-047
11 charged Hall with sexually battering E.A. between June 1, 1995 through October 1,
1995 in violation of R.C. 2907.03(A)(5), the same Revised Code section Hall was alleged
to have violated in Counts 3, 5, and 8. Count 12 charged Hall with raping E.A. between
June 1, 1997 through October 1, 1997 in violation of R.C. 2907.02(A)(2), the same
Revised Code Section Hall was alleged to have violated in Counts 2, 4, and 10. Count
13 charged Hall with sexually battering E.A. between June 1, 1997 through October 1,
1997 in violation of R.C. 2907.03(A)(5), the same Revised Code section Hall was alleged
to have violated in Counts 3, 5, 8, and 11. Count 14 charged Hall with raping E.A. between
August 1, 1998 through December 31, 1998 in violation of R.C. 2907.02(A)(2), the same
Revised Code section Hall was alleged to have violated in Counts 2, 4, 10, and 12. Count
15 charged Hall with sexually battering E.A. on August 1, 1998 through December 31,
1998 in violation of R.C. 2907.03(A)(5), the same Revised Code section Hall was alleged
to have violated in Counts 3, 5, 8, 11, and 13.
{¶ 9} On the first day of trial, August 24, 2020, the jury heard testimony regarding
Hall's alleged sexual abuse of his adopted daughter, A.Z. This included A.Z. testifying to
several instances where Hall had allegedly digitally penetrated her vagina both prior to
and after she turned 13 years old. Upon the first day of trial coming to an end, and once
the jury left the courtroom, the trial court addressed the parties and noted a potential issue
regarding the pre-September 3, 1996 definition of "sexual conduct" applicable to Hall's
alleged sexual abuse of A.Z. set forth in Counts 1, 2, 3, 4, 5, 7, and 8 of the indictment.
Specifically, as the trial court stated:
The definition of sexual conduct seems drastically different in
, the jury instruction for that. * * * This is for offenses
committed before 7/1/96. It says sexual conduct means
vaginal intercourse between a male and female, anal
intercourse, fellatio, cunnilingus between persons regardless
of sex. Penetration, however, slight, is sufficient to complete
vaginal-anal intercourse. * * * There's no mention of insertion
Warren CA2023-06-047
of other objects into the vaginal or other cavities of the body.
Is — is there something I'm missing here?
The state responded and asked the trial court to hold off on discussing that issue until the
next morning so that both parties could have the opportunity to research the matter
further. The trial court agreed and recessed for the day.
{¶ 10} The second day of trial began on August 25, 2020 with Hall arguing that
"the law's pretty clear that, as a matter of law," the state could not move forward on Counts
1, 2, 3, 4, 5, 7, and 8 related to Hall's alleged sexual abuse of A.Z. between July 1, 1991
through June 30, 1996 given that A.Z. testified to only digital penetration rather than
vaginal or anal intercourse. To support this argument, Hall correctly noted that prior to
September 3, 1996, "felonious sexual penetration was digital penetration and rape was a
separate charge." Therefore, according to Hall, as a matter of law, the state could not go
forward "on the charges of rape that [were] based on digital penetration before 1996 when
the law changed," because "by definition, the improper crime was presented to the grand
[SEGMENT 9]
jury."
{¶ 11} To this, the trial court responded to Hall's argument and stated, in pertinent
part, the following:
Listen, the bottom line is I'm not in a position as I sit here right
at this moment after I've heard less than half of one witness
to make any determinations on that. * * * I don't know what the
rest of the evidence is going to be. There may be evidence
that does match this. * * * I think a Rule 29 at the close of the
State's case would be the appropriate time to deal with this
issue, and not in the middle of the first witness. * * * That's
why I think it's just premature.
{¶ 12} Following this exchange, as well as further discussion about the release of
certain grand jury testimony to Hall, the state resumed its direct examination of A.Z.
Shortly thereafter, as the state's direct examination of A.Z. progressed, the trial court
requested a sidebar with the parties, following which the trial court excused the jury from
Warren CA2023-06-047
the courtroom. Once the jury had exited from the courtroom, the trial court addressed the
parties again and noted that, because the definition of "sexual conduct" had changed
effective September 3, 1996, it was in a "spot" given that it "didn't hear anything else with
the continuation of this particular alleged victim" that would support a finding that Hall had
engaged in "sexual conduct" with A.Z. as that term was originally defined in 1974. The
trial court then noted that it felt the need to correct this issue now before the trial
progressed any further because the testimony offered by A.Z. does not "fit" into the pre-
September 3, 1996 definition of "sexual conduct" applicable to Counts 1, 2, 3, 4, 5, 7, and
8 of the indictment. To this, the state agreed and noted that "we're stuck" with the original
"1974 definition of sexual conduct, in terms of the allegations that cover the time period
of [A.Z.]" The trial court then stated:
Okay. So then the question now becomes, do I allow you to
continue with — with your case in chief with [A.Z.] as 404(B)?
That's — that's where I'm at right now. * * * Or do I simply * *
* give an instruction and tell the jury, look, this is what's
happened. The definition of sexual conduct pre-1996 was
different and it's it doesn't fit up with what's — what's been
testified to so — that I'm dismissing those charges, and then
give a strong instruction with regard to 404(B). That's where
I'm at.
{¶ 13} Continuing, the trial court then noted that it was "trying to salvage some —
something here" when considering everyone had "invested a lot of time and energy to get
to this point and I haven't heard any other alternatives." Hall responded and argued that
he did not think it was "fixable" and that there was no curative instruction the trial court
could provide to the jury "that would cure the taint and the prejudice that has occurred"
given the nature of A.Z.'s testimony. Hall also argued that a curative instruction would not
be sufficient because:
if you tell this jury why, that the, quote, that some people might
consider to be a technicality of law because the [state] didn't
properly indict the case, that jury is irreparably tainted. You
Warren [CITATION]
can't fix that with a curative instruction.
{¶ 14} Hall instead argued that "it has to be a new jury. And we have to start over,
whether we like it or not." The trial court disagreed with Hall and instead determined that
it would make a "course correction" by dismissing Counts 1, 2, 3, 4, 5, 7, and 8 related to
Hall's alleged sexual abuse of A.Z. and provide the jury with a limiting instruction on the
manner in which it could consider A.Z.'s testimony as "other-acts" evidence under Evid.R.
404(B). Despite the trial court noting its intentions, Hall nevertheless continued arguing
against the trial court allowing the trial to continue with only a curative instruction being
provided to the jury because, at that point, the jury had already heard A.Z.'s testimony
and "[y]ou can't unring the bell." But, like before, the trial court responded to Hall's
argument by stating the jury "would be entitled to hear that anyway under 404(B)."
{¶ 15} Changing tactics, Hall then argued, in pertinent part, the following:
Okay. In a different context. Context means everything.
Coming in as a 404(B) to say this is uncharged criminal
conduct, you can't consider for any other reason for the —
other than the pattern under 404(B).
Here, they will have heard it first saying, the State is
presenting this evidence in the context of guilt beyond a
reasonable doubt. Those are two separate standards that —
and the — and to say that a jury — and these are laypeople.
I mean, they've got — I - I have tried to explain these issues
to people who are laypeople. They don't understand. These
are — look at the lawyers in here. Look at the wealth of legal
knowledge and wisdom we have and look at how we're
struggling with it.
And you're going to tell me that a jury isn't going to struggle
with that or wonder why?
{¶ 16} Unpersuaded, the trial court responded and stated, "[t]hey'd probably
struggle with it less because they're not lawyers and they would simply say, oh, the Judge
said this. I'm going to — I'm going to take that — to the bank." Hall then responded,
Warren [CITATION]
"[b]ut the bottom line is, Judge, if you want to — if you want to assure that Tim Hall gets
a clean and fair due process, it's got to be a mistrial. A curative instruction doesn't make
it." The trial court then took a short recess to consider the matter further. A brief time
later, the trial resumed with the trial court stating:
All right. We're back on the record outside the presence of
the jury. The Court is probably a little hasty in taking this
recess and allowing this — this motion to be made at this point
in time.
I don't know why, like in any other case, we wouldn't allow the
State to continue to proceed. I think we all know where this is
heading. But the appropriate time for a Rule 29 motion to
dismiss those counts of the indictment would be at the close
of the State's case.
I'm giving everybody advance notice that, based on what the
Court has heard and the — and the concessions appears to
be made that it would be the Court's intention to grant that
motion at that time. But it's not right now.
So knowing where this is going with [A.Z.] and those counts
relating to her, I'm going to allow the State to continue
presenting their case in chief, and then let's move this along.
We know where this is going, and then I will make a ruling on
the — the Rule 29 and we'll go from there. Motion for mistrial
is denied.
{¶ 17} The jury was then returned to the courtroom and A.Z.'s testimony on direct
examination continued. Following A.Z. testimony about several telephone calls,
voicemails, and text messages that she had received from Hall wherein Hall admitting to
inappropriately touching her as a child, the state concluded its direct examination of A.Z.
and the trial court recessed for lunch. The trial thereafter resumed with Hall's cross-
examination of A.Z., during which Hall questioned A.Z. about a litany of topics. This
included, among things, Hall questioning A.Z. regarding the manner in which she got the
"ball rolling" with the investigation into her allegations of sexual abuse against Hall;
several photographs depicting A.Z. with Hall and his wife, B.H., during loving, family
Warren CA2023-06-047
moments like when A.Z.'s husband asked A.Z. to marry him while at Hall's and B.H.'s
house in 2003; and why A.Z. left out certain, specific details in her written statement
outlining her allegations against Hall that she had provided the Springboro Police
Department. This also included Hall questioning A.Z. about why she did not simply go to
her mother's house that was just a short distance away rather than endure Hall's alleged
sexual abuse, why A.Z. did not tell anybody that Hall was sexually abusing her during
Hall's and her mother's divorce proceedings, and why the teacher that A.Z. claims she
reported Hall's sexual abuse during her sophomore year of high school, N.J., did not
report A.Z.'s allegations despite N.J. being a "mandatory reporter."
{¶ 18} Once Hall's cross-examination of A.Z. concluded, the state then continued
with its case-in-chief by calling to the stand A.Z.'s mother, S.H. The second day of trial
concluded with Hall's cross-examination of S.H. The third day of trial, August 26, 2020,
[SEGMENT 10]
consisted of E.A. testifying about the sexual abuse Hall had perpetrated against her both
before and after she turned 13 years old. This included E.A. testifying to an incident
where she remembers Hall having raped her at their home on Eyler Drive in Clearcreek
Township, Warren County, Ohio in the summer of 1995 when she was 12 years. E.A.
also testified about Hall raping her at their home on Fairway Drive in Springboro, Warren
County, Ohio in the summer of 1997 and the fall of 1998 when she was 14 and 15 years
old, respectively. The fourth day of trial began with the state calling two detectives to the
stand to testify, Detective Kevin Barton with the Clearcreek Township Police Department
and Detective Terry Dunkel with the Springboro Police Department. Once their testimony
concluded, the state rested and moved for the admission of its exhibits, the majority of
which were admitted into evidence without objection.
{¶ 19} Following the admission of the state's exhibits, Hall then moved for a
Crim.R. 29(A) motion for acquittal on Counts 1, 2, 3, 4, 5, 7, and 8 on the indictment
- 10 - Warren CA2023-06-047
related to his alleged sexual abuse of A.Z. To support this claim, Hall argued that "the
definition that was not met, legal definition of penetration by a penis." The state agreed
that "there was a change in the law" regarding the definition of "sexual conduct" that
limited it to "vaginal intercourse, anal intercourse and two forms of sexual oral
intercourse." Because of this change in the law, the state noted that it did not "really have
a good argument" and agreed that "the testimony — that [A.Z.] does not meet that
standard." Upon hearing this, the trial court granted Hall's Crim.R. 29(A) motion for
acquittal on Counts 1, 2, 3, 4, 5, 7, and 8 of the indictment related to Hall's alleged sexual
abuse of A.Z. between July 1, 1991 through June 30, 1996. In so holding, the trial court
initially stated that, "[t]he Court finds that the testimony of [A.Z.] related solely to digital
penetration, and that all of the offenses relating to her occurred prior to July 1st of 1996."
The trial court then stated:
There are no allegations concerning [A.Z.] post that date. It's
clear that the definition of sexual conduct, which is alleged in
all of those counts that have been moved by the defense to
be dismissed deal with digital penetration only. And, therefore,
they do not — they do not satisfy the legal definition of sexual
conduct as alleged in the indictment for rape or sexual battery.
So, therefore, Counts 1, 2, 3, 4, 5, 7 and 8 will be dismissed.
{¶ 20} Following its decision on Hall's Crim.R. 29(A) motion for acquittal, the trial
court then denied Hall's renewed motion for a mistrial that he had filed with the trial court
on the morning of the third day of trial. In so holding, the trial court stated:
At this time, and again, the Court has obviously struggled with
this this week and — and, again, in — there — there's several
different ways that I can look at it.
I believe that — that allowing the State — again, if I look at it,
that I grant your motion and we come back and we try this
case again, the Court believes that the — the next jury is going
to hear the exact same testimony, only in — in a 404(B)
context versus the — those additional counts from the
indictment.
- 11 - Warren CA2023-06-047
So I — the Court believes that I would be in the exact same
position, just with a different jury at that time. I don't think that
at this point it time, there's been any demonstration that the
prejudicial effect outweighs the probative value. Clearly prior
acts, other acts are permitted under evidence rule 404(B).
So, at this time, the Court is going to deny your request for a
mistrial.
{¶ 21} Upon denying Hall's renewed motion for a mistrial, the trial court then
recessed for lunch. After returning from lunch recess, the state formally rested and moved
for the admission of its exhibits. Once this happened, the trial court addressed the jury
and stated, "All right. Thank you. All right. Ladies and gentlemen of the jury, I need you
to pay close attention right at this moment." The trial court then instructed the jury as
follows.
The Court has withdrawn from your consideration Counts 1,
, 3, 4, 5, 7 and 8. You are not to speculate as to why the
Court has withdrawn them. Evidence relating to those counts
was received about the commission of other acts, other than
the remaining offenses with which [Hall] is charged in this trial,
specifically the allegations made by [A.Z.], that evidence was
allowed for a limited purpose. It was not received and you
may not consider it to prove the character of [Hall] in order to
show that he acted in conformity with that character in this
case with the remaining charges.
If you find at the close of the case that the evidence of the
other acts is true and that [Hall] committed them, you may
consider that evidence only for the purpose of deciding
whether it tends to prove [Hall's] motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake
or accident.
{¶ 22} For the remainder of the fourth and fifth days of trial, which took place on
August 27 and 28, 2020, Hall proceeded with his defense case-in-chief by calling an
additional five witnesses to the stand. These witnesses included A.Z.'s high school
chemistry teacher, N.J., Hall's biological daughter, A.L., Hall's sister-in-law, C.H., and
Hall's wife, B.H. Hall did not testify in his defense. As part of her testimony, Hall's wife,
- 12 - Warren CA2023-06-047
B.H., testified that she never saw anything that would have been a "red flag" regarding
how Hall treated A.Z. or E.A. when they were children. B.H. also testified that she did not
see or hear anything that she felt was "unusual" with Hall. B.H. further testified that she
did not see any "signs of any distress or anything" with A.Z. or E.A. B.H. additionally
testified that she did not see anything that would have led her to believe Hall was sexually
abusing any child, including A.Z. and E.A. B.H. also testified that for E.A. to say the things
she is now claiming that E.A. has "got some deep-seeded mental health issues that she
needs to probably get addressed." B.H. testified the same was true as it relates to A.Z.
Following B.H.'s testimony, Hall rested his defense case-in-chief and moved to admit his
exhibits, of which all but two were admitted into evidence by the trial court without
objection.
{¶ 23} The trial then moved on to the presentation of the parties' closing
arguments. During his closing argument, Hall maintained his original defense strategy
that he introduced to the jury as part of his opening statement. That is, Hall argued that
the allegations levied against him by both A.Z. and E.A. were false and that, while he did
admit to having "sexual contact" with A.Z. and E.A. by inappropriately touching them both
one time when they were children, he had never engaged in "sexual conduct" with either
A.Z. or E.A. as was alleged in the indictment. This included the following as it relates to
the manner in which the jury could consider A.Z.'s testimony as "other-acts" evidence
under Evid.R. 404(B):
Now, got to talk to you a little about — this is what we call
evidence Rule 404(B). It's in your instructions as alleged
other acts. It's important that you pay strict attention to that
rule and here's why.
It is a very, very limited instruction on what you're allowed to
consider it for, and this relates to [A.Z.'s] allegations. You may
only consider that evidence for a very limited, narrow purpose
that relates to — not character, not character. You cannot use
- 13 - Warren CA2023-06-047
that information to say, because [Hall's] admitted to two — two
illegal acts that he's not charged for, that that means he
committed rape. You cannot do that.
Hall also stated:
You're only allowed to use [A.Z.'s testimony] for that limited
purpose of opportunity, plan, whether or not you think — and
that requires you to get to the place of thinking that there's
some truth, truth in what [A.Z.] says.
So you can't convert that belief that relates to [A.Z.] into a
reason to find [E.A.'s] charges founded. In other words, to find
[Hall] guilty because you've got to look at the independent
evidence as it relates to [E.A.'s] claim.
[SEGMENT 11]
The instructions lay that out for you, somewhat legalese. But
when you look at it, I think that you will understand what that
instruction means.
[CITATION] Once the parties' closing arguments were complete, the trial court provided
its final instructions to the jury. This included the following instruction regarding the way
the jury could consider A.Z.'s testimony as "other-acts" evidence under Evid.R. 404(B).
Evidence was received about the commission of other acts,
other than the offenses with which [Hall] is now charged in this
trial. Specifically, I am referring to the allegations of [A.Z.]
That evidence was received only for a limited purpose. It was
not received and you may not consider it to prove the
character of [Hall] in order to show that he acted in conformity
with that character in this case regarding the remaining counts
involving [E.A.]
If you find that the evidence of other acts as alleged by [A.Z.]
are true, and that [Hall] committed them, you may consider
that evidence only for the purposes of deciding whether it
proves [Hall's] motive, opportunity, intent or purpose, absence
of mistake or accident, or preparation or plan to commit the
offenses charged in this trial. That evidence cannot be
considered for any other purpose.
[CITATION] After the trial court completed its final jury instructions, the jury was then
released for deliberations. Three hours and five minutes later, the jury returned to the
courtroom with a verdict finding Hall guilty of sexually abusing E.A. as alleged in Counts
- 14 - Warren CA2023-06-047
9, 10, 11, 12, 13, 14, and 15 of the indictment. Approximately two months later, on
November 24, 2020, the trial court held a sentencing hearing. During that hearing, the
trial court merged Counts 9, 10, and 11 together, Counts 12 and 13 together, and Counts
14 and 15 together as allied offenses of similar import. Following the trial court's merger,
the state elected to proceed with sentencing Hall on Counts 9, 12, and 14. The state's
election effectively consolidated the seven offenses that Hall had been found guilty into
the 1995 rape of E.A. at the house on Eyler Drive in Clearcreek Township, Warren County,
Ohio, and the 1997 and 1998 rapes of E.A. at the house on Fairway Drive in Springboro,
Warren County, Ohio. Following the state's election, the trial court then proceeded with
its sentencing decision and sentenced Hall to a mandatory term of life in prison. The trial
court also designated Hall a sexual predator and notified Hall that he would be subject to
a mandatory five-year postrelease control term if he was ever released from prison.
Hall's Direct Appeal and the Ohio Supreme Court's Decision Declining Review
{¶ 26} On December 14, 2020, Hall filed a direct appeal from his conviction to this
court. To support his appeal, Hall raised six assignments of error for this court's
consideration. Within his six assignments of error, Hall argued the trial court erred by
denying his motion for a mistrial because A.Z. was allowed to testify as a "victim" of his
alleged sexual abuse at trial, which "[e]ven the best curative instruction could not
eliminate the inflammatory prejudice caused to [him]." Hall also argued the trial court
erred by admitting A.Z.'s testimony as "other-acts" evidence pursuant to Evid.R. 404(B),
as well as in the manner in which the trial court instructed the jury it could consider A.Z.'s
testimony under Evid.R. 404(B).
{¶ 27} However, upon review, this court disagreed with each of Hall's arguments
raised in support of his six assignments of error and affirmed Hall's conviction in its
entirety on April 4, 2022. [CITATION]
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1147. In so holding, this court noted that "[n]obody," not the trial court, Hall, or the state,
knew prior to A.Z. taking the stand on the first day of trial that it was only after September
3, 1996 that the definition of "sexual conduct" set forth in R.C. 2907.01(A) included digital
penetration. [CITATION] at ¶ 202. This court also noted that, although not perfect, Hall
nevertheless received a fair trial. [CITATION] at ¶ 187. Shortly after this court issued its opinion,
Hall appealed this court's decision to the Ohio Supreme Court. The Ohio Supreme Court,
however, declined to accept Hall's appeal for review on August 17, 2022. [CITATION].
Hall's Petition for Postconviction Relief and the Trial Court's Dismissal
{¶ 28} On April 15, 2022, less than two weeks after this court issued our opinion
affirming Hall's conviction on direct appeal, Hall filed a pro se petition for postconviction
relief. Although not explicit, Hall filed his petition pursuant to R.C. 2953.21(A)(1)(a)(i).
Pursuant to that statute, any person who has been convicted of a criminal offense, and
who claims that there was such a denial or infringement of the person's rights as to render
the judgment "void or voidable" under the Ohio Constitution or the United States
Constitution, "may file a petition in the court that imposed sentence, stating the grounds
for relief relied upon, and asking the court to vacate or set aside the judgment or sentence
or to grant other appropriate relief[.]" To support his postconviction relief petition, Hall
presented seven grounds for relief, all seven of which were based upon his trial counsel's
alleged ineffective assistance of counsel in violation of the Sixth Amendment to the United
States Constitution and Section 10, Article I of the Ohio Constitution.
{¶ 29} However, given Hall's arguments advanced in his appellate brief, only three
of those grounds are relevant to this appeal. The first of those three stated grounds
provided, in pertinent part, the following: (1) ineffective assistance of counsel for failing to
"prepare an effective defense prior to trial," to "present an effective defense including trial
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strategy," to "protect and preserve" Hall's "legal rights for future appeals," and to "raise
an objection" and "motion" prior to trial challenging the state's ability to move forward on
Counts 1, 2, 3, 4, and 7 of the indictment as it related to his alleged sexual abuse of his
adopted daughter, A.Z., all of which was to have occurred prior to the September 3, 1996
definition of "sexual conduct" set forth in R.C. 2907.01(A) came into effect, where none
of the pretrial information supported those counts and Hall's trial counsel "missed it."2
{¶ 30} Whereas the second and third stated grounds provided (2) ineffective
assistance of counsel for failing to "adapt a strategy" upon learning the charges related
to Hall's alleged sexual abuse of A.Z. would likely be dismissed at the end of the state's
case-in-chief, as well as for failing to object to the trial court's instructions it provided to
the jury as it relates to the manner in which the jury could consider A.Z.'s testimony as
"other-acts" evidence pursuant to Evid.R. 404(B); and (3) ineffective assistance of
counsel for failing to adapt a varying trial strategy despite a "fundamentally changed set
of circumstances" after learning the charges related to Hall's alleged sexual abuse of A.Z.
would likely be dismissed at the end of the state's case-in-chief, and for providing the jury
with "incomprehensible instructions" during closing argument regarding how it could
consider A.Z.'s testimony as "other-acts" evidence pursuant to Evid.R. 404(B), which
"grievously undermined" Hall's right to fair trial and "adversely influenced the jury."
{¶ 31} To support those three stated grounds for relief, Hall attached to his
postconviction relief petition [CITATION] decision affirming his conviction on direct appeal,
as well as affidavits from Hall and his wife, B.H., wherein they both averred that, while
driving home following the first day of trial, one of Hall's attorneys stated to them over the
2. We note that, for reasons unknown, Hall's first ground for relief addresses only Counts 1, 2, 3, 4, and 7
of the indictment without making any reference to the other two counts related to his alleged sexual abuse
of A.Z. set forth in Count 5 and Count 8 of the indictment.
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phone, "Wow! I wish we would have found that," in reference to the lack of digital
penetration in the pre-September 3, 1996 definition of "sexual conduct" set forth in R.C.
2907.01(A).
{¶ 32} On May 26, 2022, the state filed a motion to dismiss Hall's petition for
postconviction relief, or, in the alternative, motion for summary judgment. Just over three
[SEGMENT 12]
months later, on August 30, 2022, the trial court issued a decision and entry summarily
dismissing Hall's postconviction relief petition without a hearing. In so holding, the trial
court initially determined that Hall's "assertions of ineffective assistance of counsel are
barred by the doctrine of res judicata." The trial court also noted that, even if Hall's
ineffective assistance of counsel claims were not barred by the doctrine of res judicata,
"this Court would still find [Hall's] ineffective assistance of counsel argument fails, as [Hall]
cannot show that trial counsel's representation fell below an objective standard of
reasonableness, and that there is a reasonable probability that, but for the defective
representation, the outcome of the proceeding would have been different." This is in
addition to the trial court finding "the affidavits relied upon by [Hall] in his postconviction
petition lack credibility" and must be "weighed cautiously" given that both Hall and his
wife, B.H., "have a clear interest in [Hall's] success in this petition." The trial court
thereafter concluded by finding Hall's petition for postconviction relief must be summarily
dismissed without a hearing because "the petition is barred by the doctrine of res judicata
and the petition, supporting affidavits, documentary evidence, files, and record do not set
forth sufficient operative facts to establish substantive grounds for the relief requested."
Hall's Appeal and Single Assignment of Error for Review
{¶ 33} On September 30, 2022, Hall filed a notice of appeal from the trial court's
decision summarily denying his petition for postconviction relief without a hearing.
Following some delay, this court accepted Hall's appeal as timely and issued a scheduling
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order directing when the record and the briefs of the parties were to be filed. Pursuant to
that scheduling order, the parties filed their respective briefs with this court on October 9,
November 30, and December 21, 2023. Oral argument was thereafter held before this
court on February 20, 2024. Hall's appeal now properly before this court for decision,
Hall has raised one assignment of error for review. In that single assignment of error, Hall
argues the trial court erred by summarily denying his postconviction relief petition without
a hearing. We disagree.
Petition for Postconviction Relief Standard of Review
{¶ 34} "In Ohio, persons convicted of criminal offenses may petition a trial court for
postconviction relief if they fit into one of four categories." [CITATION]. Those four categories
are set forth in R.C. 2953.21(A)(1)(a)(i) through (iv). Relevant here is the first category,
which "permits a person convicted of a criminal offense to petition the trial court to vacate
his conviction when he believes 'there was such a denial or infringement of [his] rights as
to render the judgment void or voidable under the Ohio Constitution or the Constitution of
the United States.'" [CITATION], quoting R.C.
2953.21(A)(1)(a)(i). When a criminal defendant challenges his conviction through a
postconviction relief petition, like Hall does in this case, the trial court may hold an
evidentiary hearing on the issues raised by the petition. [CITATION], citing R.C. 2953.21(D) thru (F).
However, "[a]n evidentiary hearing is not automatically guaranteed each time a defendant
makes a petition for postconviction relief." [CITATION]. Rather, "[t]he trial court, before
granting a hearing on a petition filed under R.C. 2953.21(A)(1)(a)(i), is required to
'determine whether there are substantive grounds for relief.'" [CITATION], quoting R.C.
- 19 - Warren CA2023-06-047
2953.21(D).
{¶ 35} "A petition presents substantive grounds for relief when it contains
allegations that are sufficient to state a constitutional claim and the files and records of
the case do not affirmatively disprove the claim." [CITATION], ¶ 24, citing [CITATION]; and R.C.
2953.21(F). "In determining whether the petition states a substantive ground for relief,
the trial court must consider the entirety of the record from the trial proceedings as well
as any evidence filed by the parties in postconviction proceedings." [CITATION], ¶ 24, citing R.C. 2953.21(D). "If the record on its face
demonstrates that the petitioner is not entitled to relief, then the trial court must dismiss
the petition." Id., citing R.C. 2953.21(D) and (E). That is to say, "'[a] trial court properly
denies a defendant's petition for postconviction relief without holding an evidentiary
hearing where the petition, the supporting affidavits, the documentary evidence, the files,
and the records do not demonstrate that petitioner set forth sufficient operative facts to
establish substantive grounds for relief.'" [CITATION], quoting [CITATION],
paragraph two of the syllabus. However, "[i]f the record does not on its face disprove the
petitioner's claim, then the court is required to 'proceed to a prompt hearing on the
issues.'" [CITATION], quoting R.C. 2953.21(F); see also [CITATION], ¶ 28 ("[t]he defendant is entitled to an evidentiary hearing when the
allegations in the motion demonstrate substantive grounds for relief").
{¶ 36} "A trial court's decision to summarily deny a postconviction petition without
holding an evidentiary hearing will not be reversed absent an abuse of discretion." [CITATION], ¶ 6. "The standard
is deferential, requiring the trial court to engage in more than mere error in law or
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judgment." [CITATION]
This court must instead "find that the trial court's ruling was unreasonable, arbitrary, or
unconscionable." [CITATION] "A decision is unreasonable where a sound reasoning process does not
support it." [CITATION]
"[A]n 'arbitrary' decision is one made 'without consideration of or regard for facts [or]
circumstances.'" [CITATION], quoting
Black's Law Dictionary 125 (10th Ed.2014). "An unconscionable decision may be defined
as one that affronts the sense of justice, decency, or reasonableness." [CITATION]
Therefore, for this court to find an abuse of discretion,
"the trial court's judgment must be so profoundly and wholly violative of fact and reason
that 'it evidences not the exercise of will but perversity of will, not the exercise of judgment
but defiance thereof, not the exercise of reason but rather of passion or bias.'" [CITATION], quoting [CITATION]
The Application of the Doctrine of Res Judicata
{¶ 37} To support his single assignment of error, Hall initially argues the trial court
erred by misapplying the doctrine of res judicata when summarily dismissing his petition
for postconviction relief without a hearing. We disagree.
{¶ 38} "It is well established that a trial court may dismiss a postconviction relief
petition on the basis of the doctrine of res judicata." [CITATION] "The doctrine of res judicata precludes a
convicted defendant 'from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or any claimed lack of due process that was raised or could
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====== End of Document ====== Warren CA2023-06-047
have been raised' at trial or on direct appeal." [CITATION] at ¶ 22, quoting
[CITATION], syllabus. "So a court reviewing a
postconviction-relief petition generally may not decide a claim that could have been
presented at trial and raised on direct appeal." [CITATION] at ¶ 2, citing
[CITATION]. There is a twist, however, when it comes
to petitions for postconviction relief that are based on the alleged ineffective assistance
of counsel. Id. As noted by the Ohio Supreme Court, "res judicata does not bar a
postconviction ineffective-assistance-of-counsel claim when either (1) the petitioner had
the same attorney at trial and on appeal or (2) he must rely on evidence outside the trial
record to establish his claim for relief." Id., citing [CITATION]
(1982). That is to say:
if the petitioner's appellate counsel is different from his trial
counsel and the matter could have been subject to appeal on
the record, res judicata will bar that postconviction claim for
relief. A different outcome results if the petitioner had the
same attorney at trial and on appeal or he must rely on
evidence outside the trial record to establish his claim for
relief. * * * In that circumstance, res judicata does not serve to
bar a claim of ineffective assistance of counsel in a
postconviction petition.
(Internal citation deleted.) [CITATION] Therefore, while it is generally true that res judicata will bar a claim that could
have been presented at trial and raised on direct appeal, res judicata does not, in and of
itself, "bar all ineffective-assistance claims that were previously raised in a direct appeal."
[SEGMENT 13]
[CITATION] at ¶ 38.
{¶ 39} Rather, a petitioner who presents a postconviction ineffective assistance of
counsel claim, and who demonstrates through evidence outside the trial record that their
ineffective assistance of counsel claim either was not, or could not have been, fairly
adjudicated in the petitioner's direct appeal, the petitioner is provided "a second
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opportunity to litigate the claim." (Emphasis sic.). [CITATION] at ¶ 38. This
necessarily means that "claims that rely on evidence outside the record may be heard on
postconviction review even if similar claims have been previously raised and adjudicated
against the petitioner in his direct appeal." Id. at ¶ 41. This would include, for example,
a petitioner's ineffective assistance of counsel claim "regarding counsel's failure to
present evidence." Id. It would not include, however, a petitioner's ineffective assistance
of counsel claim "based on counsel's failure to object to obviously prejudicial evidence"
as that claim could have fairly been "resolved on appeal based on evidence entirely within
the trial record." Id. Therefore, "when the petitioner had a new attorney on appeal and
the claim could have been litigated based on the trial record, res judicata applies and the
postconviction claim is barred." Id. at ¶ 2. Conversely, where a petitioner has brought
forth evidence outside the record of ineffective assistance of counsel, that showing is
generally sufficient, "'if not to mandate a hearing, at least to avoid dismissal on the basis
of res judicata.'" Id. at ¶ 31, quoting [CITATION] at 114.
{¶ 40} In this case, Hall, whose trial counsel and counsel on direct appeal were not
the same, brought forth evidence outside the trial record in support of his ineffective
assistance of counsel claim. That evidence included, most notably, Hall's and his wife
B.H.'s affidavits, wherein they both averred that, while driving home following the first day
of trial, one of Hall's attorneys stated to them over the phone, "Wow! I wish we would
have found that," in reference to lack of digital penetration in the pre-September 3, 1996
definition of "sexual conduct" set forth in R.C. 2907.01(A). However, although presenting
evidence that was undoubtably outside the trial record, Hall has not demonstrated that
without the benefit of such evidence his ineffective assistance of counsel claim either was
not, or could not have been, fairly adjudicated as part of his direct appeal to this court.
That is to say, while potentially helpful to Hall had that evidence been a part of the trial
- 23 - Warren CA2023-06-047
record, Hall's claim that his trial counsel was ineffective for failing to discover the pre-
September 3, 1996 definition of "sexual conduct" set forth in R.C. 2907.01(A) did not
include digital penetration was in no way reliant upon any evidence outside of the trial
record. This includes either Hall's or Hall's wife B.H.'s affidavits.
{¶ 41} Rather, based on the record properly before this court, we find it clear that
Hall could have instead, had he so chosen, raised that ineffective assistance of counsel
claim as part of an appropriately worded assignment of error. Hall did not raise that issue
as part of his direct appeal and the doctrine of res judicata bars Hall from doing so now
as part of his petition for postconviction relief. See, e.g., [CITATION], ¶ 13 (affirming trial court's decision dismissing
appellant's petition for postconviction relief on the basis that his ineffective assistance of
counsel claims were barred under the doctrine of res judicata given that each of the issues
appellant raised in support of his ineffective assistance of counsel claim could have been
raised either at trial or on direct appeal).
{¶ 42} "The petitioner can avoid the bar of res judicata by submitting evidence
outside the record on appeal that demonstrates that the petitioner could not have raised
the claim based on information in the original record." [CITATION], ¶ 24. However, "[f]inding an item outside the
record to attach to a petition does not turn an issue into a substantive post-conviction
claim where it is essentially cumulative to evidence that was in the record on a topic that
could have been raised on direct appeal." [CITATION], ¶ 41. Moreover, "[i]f the evidence outside the record is 'marginally
significant and does not advance the petitioner's claim beyond a mere hypothesis and a
desire for further discovery,' res judicata still applies to [bar] the claim." [CITATION], ¶ 14, quoting [CITATION],
- 24 - Warren CA2023-06-047
12th Dist. Clermont No. CA98-10-090, [CITATION].
Such is the case here. Therefore, contrary to Hall's claim otherwise, the trial court did not
err in its application of the doctrine of res judicata when summarily dismissing Hall's
petition for postconviction relief without a hearing. To the extent Hall claims otherwise,
such argument lacks merit.
Hall's Evidence Does Not Present Substantive Grounds for Relief
{¶ 43} Regardless, even if we were to find the doctrine of res judicata did not apply
to bar Hall's ineffective assistance of counsel claim, it is important to note that "merely
providing evidence outside the record is not sufficient to entitle a petitioner to a hearing."
[CITATION]. That is to say, "simply overcoming the res judicata bar through the introduction of evidence
outside the record is not sufficient," in and of itself, to necessitate the trial court holding a
hearing on the matter. [CITATION].
{¶ 44} Rather, to be entitled to a hearing, "a petitioner 'must proffer evidence which,
if believed, would establish not only that his trial counsel had substantially violated at least
one of a defense attorney's essential duties to his client but also that said violation was
prejudicial to the [petitioner].'" (Brackets sic.) [CITATION]. Therefore, in cases where the petitioner has brought forth evidence outside the record of
ineffective assistance of counsel, which we will assume Hall did for purpose of this court's
alternative analysis, a two-part inquiry applies to determine whether the petitioner is
entitled to a hearing. [CITATION]. That two-part inquiry provides (1)
"Has the petitioner introduced competent evidence of ineffective assistance that was not
included in the trial record?" and (2) "if so, does that evidence present substantive
grounds for relief; that is, if believed, would the newly presented evidence—together with
any evidence in the trial record—establish that counsel was ineffective?" [CITATION].
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{¶ 45} When applying this two-part inquiry to the case at bar, we must examine
Hall's postconviction ineffective assistance of counsel claim as it relates to the trial court's
decision to summarily dismiss his petition without a hearing "rather than as it affects a
decision on the merits of an appeal or on the merits of the postconviction petition." [CITATION],
2022-Ohio-4723 at ¶ 27. Thus, Hall's petition for postconviction relief "need not
definitively establish counsel's deficiency" or whether it prejudiced Hall. Id.; [CITATION],
6th Dist. Lucas No. L-20-1121, 2023-Ohio-294, ¶ 73 ("when the issue is whether
to grant a hearing on a postconviction petition, rather than as to the merits of the
postconviction petition,* * * the postconviction petition does not need to definitively
establish that trial counsel was deficient, or that appellant was prejudiced"). Instead, to
be entitled to a hearing, Hall's petition "must be sufficient on its face to raise an issue
whether [he] was deprived of the effective assistance of counsel, and [his] claim depends
on factual allegations that cannot be determined by examining the record from his trial."
Id., citing [CITATION], 42 Ohio St.2d at paragraph one of the syllabus; and [CITATION], 2 Ohio
St.3d at 114. "If the record on its face demonstrates that the petitioner is not entitled to
relief, then the trial court must dismiss the petition." [CITATION], 2023-Ohio-1249 at ¶ 11,
citing R.C. 2953.21(D) and (E)."
{¶ 46} To support his ineffective assistance of counsel claim, Hall relied upon his
and his wife B.H.'s affidavits, wherein they both averred that, while driving home following
the first day of trial, one of Hall's attorneys stated to them over the phone, "Wow! I wish
we would have found that," in reference to lack of digital penetration in the pre-September
3, 1996 definition of "sexual conduct" set forth in R.C. 2907.01(A). However, after a
thorough review of the record, the allegations set forth within Hall's and B.H.'s affidavits,
together with the evidence contained within the trial court record, do not present
substantive grounds that would entitle Hall to relief.
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{¶ 47} Rather, Hall's allegations set forth within his and his wife B.H.'s affidavits,
[SEGMENT 14]
together with the evidence contained within the record, merely establish what we already
knew, and one of the issues that this court specifically addressed as part of Hall's direct
appeal. That being, the complete lack of awareness on the part of Hall's trial counsel, the
state, and even the trial court, that the charges related Hall's alleged sexual abuse to A.Z.
set forth in Counts 1, 2, 3, 4, 5, 7, and 8 would need to be dismissed at the time when
A.Z. took the stand and testified in the manner that she did. It was only after A.Z.'s
testimony was complete that the trial court was able to conclusively determine that those
charges were, as a matter of law, not supported by sufficient evidence given the definition
of "sexual conduct" applicable to those charges did not include digital penetration.
Therefore, even when considering the entirety of the record from the trial court
proceedings, in conjunction with the affidavits from Hall and his wife, B.H., Hall did not
present any substantive grounds that would entitle him to relief.
{¶ 48} Regardless, even if we were to find Hall had presented an argument that
could be considered a substantive ground for relief that would ordinarily necessitate the
trial court holding a hearing on the matter, Hall has failed to establish that his trial counsel
provided him with ineffective assistance based on the allegations set forth within his and
his wife B.H.'s affidavits.
{¶ 49} "The standard by which we review claims of ineffective assistance of
counsel is well established." [CITATION]. To establish
ineffective assistance, a defendant must show (1) that counsel's performance was
deficient, and (2) that counsel's deficient performance prejudiced the defendant.
[CITATION]. Courts
determine deficient performance by asking whether counsel's conduct "fell below an
objective standard of reasonableness." Id. at 688. When making this determination, the
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reasonableness of counsel's conduct must be judged based on "the facts of the particular
case, viewed as of the time of counsel's conduct." Id. at 690. Only when counsel's errors
were "so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" has counsel engaged in deficient performance. Id.
at 687. To establish prejudice, "[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 694. This requires the errors to be so significant as to
"undermine confidence in the outcome." Id. "A defendant's failure to make a sufficient
showing of either prong of the Strickland inquiry is fatal to his claim of ineffective
assistance." [CITATION]
{¶ 50} Here, although couched in slightly different terms, Hall is essentially arguing
that his trial counsel's failure to discover before trial that the pre-September 3, 1996,
definition of "sexual conduct" set forth in R.C. 2907.01(A) did not include digital
penetration constituted deficient performance that fell below an objective standard of
reasonableness. To support this claim, Hall argues the underlying reason the jury found
him guilty of sexually abusing E.A. was due to the improper introduction of A.Z.'s
testimony into evidence. This is because, according to Hall, the introduction of A.Z.'s
testimony into evidence "changed the dynamic of the trial" and left the jury "under the
impression" that her testimony also "went to the allegations of rape against Hall." But,
even if we were to agree with Hall as it relates to his trial counsel's performance, deficient
or not, Hall cannot demonstrate that he suffered any resulting prejudice by his trial
counsel's failure to discover that it was the original 1974 definition of "sexual conduct"
that applied to Hall's alleged sexual abuse of A.Z. rather than the revised September 3,
1996 definition set forth in R.C. 2907.01(A).
{¶ 51} In this case, and what Hall seems to be forgetting, is that this court has
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already affirmed the trial court's decision to admit A.Z.'s testimony as "other-acts"
evidence under Evid.R. 404(B) as part of his direct appeal. [CITATION] at ¶
188-198. In so holding, this court initially rejected Hall's argument that it was error for the
trial court to admit A.Z.'s testimony as "other-acts" evidence under Evid.R. 404(B)
because the state did not offer A.Z.'s testimony to prove any one of the permitted
purposes set forth within that rule, i.e., motive, opportunity, intent, preparation, plan,
knowledge, identity, or the absence of mistake or accident. Id. at ¶ 194. In reaching this
decision, this court stated:
[A]lthough it is beyond dispute that the state was not offering
A.Z.'s testimony as other-acts evidence when A.Z. initially
took the stand, A.Z.'s trial testimony was undoubtably relevant
and could have been introduced by the state at trial for at least
two, if not more, of the permitted purposes set forth in Evid.R.
(B) had the charges related to Hall's alleged sexual abuse
of A.Z. never been brought. This includes, but is not
necessarily limited to, [showing] Hall's intent and the absence
of mistake or accident. "Other-acts evidence is admissible to
negate a defendant's claim of mistake or accident with respect
to the commission of the alleged crime; such evidence tends
'[t]o show, by similar acts or incidents, that the act in question
was not performed inadvertently, accidentally, involuntarily, or
without guilty knowledge.'" [CITATION], quoting McCormick, Evidence,
Section 190, 804 (4th Ed. 1994).
This is necessarily the case [here] given Hall's repeated
denials to both A.Z. and E.A. that he had done anything more
than what he admitted to within State's Exhibit 1, i.e., his
"confession" and "love letter to his daughters" that he provided
to police during the search of his home, wherein Hall
acknowledged that he had touched both A.Z. and E.A.
inappropriately when they were children. This is also the case
given the statement Hall made during one of the telephone
calls he had with A.Z. on April 18, 2019 claiming he did not
remember doing any of the things that A.Z. and E.A. were
alleging, but that if he "was ever wasted and accidentally did
something that is one thing." This is in addition to Hall's
statements during that same April 18, 2019 telephone call, as
well as Hall's May 1, 2019 telephone call with E.A., wherein
Hall claimed that maybe he did not remember anything that
A.Z. and E.A. were alleging because he had been
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sleepwalking or because he might be a paranoid
schizophrenic with split personalities.
Hall, therefore, did not merely deny A.Z.'s and E.A.'s
allegations ever occurred. Hall also defended against A.Z.'s
and E.A.'s allegations by claiming if something had happened
that it was accidental, inadvertent, or unintended because he
was "wasted," sleepwalking, or possibly suffering from split
personalities. Accordingly, because Hall placed his intent at
issue by claiming his actions were accidental, innocent, or
without his knowledge, A.Z.'s testimony was properly
admissible as other-acts evidence under Evid.R. 404(B) to
show, at the very least, intent and the absence of mistake or
accident. See, e.g., [CITATION] (finding "other-
acts evidence related to [one child victim] was properly
admissible to show intent and absence of mistake" at trial
where appellant was being tried for raping another child victim
and defending against the charge by claiming the rape never
happened, but "if it was happening in the middle of the night,
he was not aware of it"). Hall's claim otherwise lacks merit.
Id., 2022-Ohio-1147 at ¶ 194-196.
{¶ 52} This court also rejected Hall's argument that it was error for the trial court to
admit A.Z.'s testimony as "other-acts" evidence under Evid.R. 404(B) because, "without
limiting the scope" of A.Z.'s testimony prior to her taking the stand, A.Z.'s testimony was
highly prejudicial, thereby requiring its exclusion under Evid.R. 403(A). Id. at ¶ 197. In
so holding, this court stated:
Without question, A.Z.'s testimony was prejudicial. All
evidence presented by the prosecutor is prejudicial. [CITATION]. But not
all evidence unfairly prejudices a defendant. [CITATION].
"Under Evid.R. 403(A), only evidence that is unfairly
prejudicial is excludable." (Emphasis sic.) [CITATION].
"Unfairly prejudicial evidence is not merely unfavorable
evidence; rather, it is evidence, which might result in an
improper bias for a jury decision." [CITATION].
[SEGMENT 15]
"Weighing the probative value of the evidence against its
- 30 - Warren CA2023-06-047
prejudicial effect is a highly fact-specific and context-driven
analysis." [CITATION] at ¶ 30. Therefore,
despite Hall's claims, when considering the trial court found it
proper to admit A.Z.'s testimony as other-acts evidence, the
trial court clearly determined that the probative value of A.Z.'s
testimony did not substantially outweigh the danger of unfair
prejudice to Hall, thereby requiring its exclusion under Evid.R.
(A). See Evid.R. 403(A) ("[a]lthough relevant, evidence is
not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of
the issues, or of misleading the jury"). The trial court did not
abuse its discretion in reaching this decision. That is to say,
the trial court's decision finding the probative value of A.Z.'s
testimony did not substantially outweigh the danger of unfair
prejudice to Hall was not unreasonable, arbitrary, or
unconscionable. Hall's claim otherwise again lacks merit.
Accordingly, for the reasons outlined above, Hall's second
assignment of error lacks merit and is overruled.
[CITATION] at ¶ 197-198.
{¶ 53} This court also affirmed the trial court's instructions it provided to the jury
regarding the manner in which it could consider A.Z.'s testimony as "other-acts" evidence
under Evid.R. 404(B) when determining whether Hall had sexually abused E.A. In so
holding, this court initially rejected Hall's argument that the trial court erred by failing to
give the jury a limiting instruction prior to A.Z. taking the stand and testifying to the "other-
acts" evidence discussed more fully above. In reaching this decision, this court stated:
[A]s the record indicates, the trial court was unaware that the
charges related Hall's alleged sexual abuse to A.Z., Counts 1,
, 3, 4, 5, 7, and 8, would need to be dismissed at the time
when A.Z. took the stand and testified in the manner that she
did. Nobody did. It was only after A.Z.'s testimony was
complete that the trial court was able to conclusively
determine that those charges were, as a matter of law, not
supported by sufficient evidence given the definition of "sexual
conduct" applicable to those charges did not include digital
penetration. Therefore, because it was only after A.Z. testified
that anybody — including Hall — knew the charges related to
A.Z. would need to be dismissed, the trial court had no way of
knowing it would need provide the jury with a limiting
instruction regarding A.Z.'s testimony before A.Z. ever took
the stand. Accordingly, Hall's claim alleging the trial court
erred by failing to give the jury a limiting instruction regarding
- 31 - Warren CA2023-06-047
other-acts evidence prior to A.Z. taking the stand lacks merit.
[CITATION] at ¶ 202.
{¶ 54} This court also rejected Hall's argument that the instructions the trial court
provided to the jury regarding the A.Z.'s testimony was overbroad, confusing, and
prejudicial. This included Hall's challenge to the trial court's instruction it provided to the
jury after the state formally rested its case-in-chief, which provided:
The Court has withdrawn from your consideration Counts 1,
, 3, 4, 5, 7 and 8. You are not to speculate as to why the
Court has withdrawn them. Evidence relating to those counts
was received about the commission of other acts, other than
the remaining offenses with which the Defendant is charged
in this trial, specifically the allegations made by [A.Z.], that
evidence was allowed for a limited purpose. It was not
received and you may not consider it to prove the character
of the Defendant in order to show that he acted in conformity
with that character in this case with the remaining charges.
If you find at the close of the case that the evidence of the
other acts is true and that the Defendant committed them, you
may consider that evidence only for the purpose of deciding
whether it tends to prove the Defendant's motive, opportunity,
intent, preparation, plan, knowledge, identity or absence of
mistake or accident.
[CITATION], at ¶ 203.
{¶ 55} This court further rejected Hall's challenge to the instruction the trial court
provided to the jury regarding A.Z.'s testimony as part of its final jury instructions, which,
like the trial court's earlier instruction set forth above, provided:
Evidence was received about the commission of other acts,
other than the offense with which the Defendant is not
charged in this trial. Specifically, I am referring to the
allegations of [A.Z.]
That evidence was received only for a limited purpose. It was
not received and you may not consider it to prove the
character of the Defendant in order to show that he acted in
conformity with that character in this case regarding the
remaining counts involving [E.A.]
- 32 - Warren CA2023-06-047
If you find that the evidence of other acts as alleged by [A.Z.]
as true, and that the Defendant committed them, you may
consider that evidence only for the purposes of deciding
whether it proves the Defendant's motive, opportunity, intent
or purpose, absence of mistake or accident, or preparation or
plan to commit the offenses charged in this trial. That
evidence cannot be considered for any other purpose.
[CITATION] at ¶ 204.
{¶ 56} Additionally, citing the Ohio Supreme Court's decision in [CITATION],
we rejected Hall's argument that the instructions the trial court provided to the
jury regarding A.Z.'s testimony were clearly prejudicial to him. In rejecting Hall's
argument, this court determined that, unfortunately, the trial court's instructions regarding
A.Z.'s testimony were not tailored to the facts of the case as required by [CITATION] at ¶ 70
("when a court issues a limiting instruction with respect to other-acts evidence, the
instruction should be tailored to the facts of the case"). However, when taken in context,
this court determined that portion of the Ohio Supreme Court's decision in [CITATION] was
undoubtedly dicta and clearly intended to apply prospectively to jury trials coming after
that case was released. In so holding, this court noted:
The Ohio Supreme Court specifically states as much in the
next sentence noting that, "[g]oing forward, courts should
explain, in plain language, the purposes for which the other
acts may and may not be considered." (Emphasis added.) Id.
at ¶ 70. Therefore, because the Ohio Supreme Court's
decision in [CITATION] was released on September 22, 2020,
which was nearly a full month after Hall's jury trial concluded,
the Ohio Supreme Court's commentary in [CITATION] that, going
forward, trial courts should use plain language to explain the
purpose(s) that other-acts evidence may and may not be
considered, could not have been applied by the trial court to
the case at bar. The trial court applied the law as it existed at
the time, which is all that the trial court could be expected to
do.
[CITATION] at ¶ 206
{¶ 57} In reaching this decision, this court further noted that, although Hall did
- 33 - Warren CA2023-06-047
initially state that it was his belief that the trial court's final instruction to the jury "needs to
be tailored to what the State intends to offer that for," Hall did not object to the trial court's
instruction on that basis. Hall instead stated, "that works" regarding the instruction the
trial court provided to the jury after the state formally rested its case-in-chief, and "[n]o
objection, Your Honor," when asked if he had any objection to the trial court's instruction
it provided to the jury as part of its final jury instructions. Id. at ¶ 207. Therefore, this
court determined that, just like the appellant in [CITATION], because Hall did not object to
the trial court's challenged instructions, no plain error occurred in this case. Id., citing
[CITATION] at ¶ 72.
{¶ 58} Based on the foregoing, even if this court were to find Hall's trial counsel's
performance was deficient, because this court has already determined that the trial court
did not err by admitting A.Z.'s testimony as "other-acts" evidence under Evid.R. 4040(B),
Hall cannot establish that he was in any way prejudiced by his trial counsel's failure to
discover before trial that digital penetration was not included in the pre-September 3, 1996
definition of "sexual conduct" set forth in R.C. 2907.01(A). This is because, even had
Hall's trial counsel made that discovery, the jury would still have heard A.Z.'s testimony
[SEGMENT 16]
and been permitted to consider it for at least two, if not more, of the permitted purposes
set forth in Evid.R. 404(B) when determining whether Hall had sexually abused E.A. had
the charges related to Hall's alleged sexual abuse of A.Z. never been brought. As noted
above, this includes, but is not necessarily limited to, showing Hall's intent and the
absence of mistake or accident with respect to Hall's sexual abuse of E.A.
Conclusion
{¶ 59} Therefore, because Hall cannot demonstrate that he suffered any resulting
prejudice, the record on its face demonstrates that Hall is not entitled to relief, thereby
mandating the trial court to dismiss Hall's petition for postconviction relief without a
- 34 - Warren CA2023-06-047
hearing. See [CITATION].
Accordingly, whether it be based upon the doctrine of res judicata, or on this alternative
ground, because the trial court did not err by summarily dismissing Hall's petition for
postconviction relief without a hearing, Hall's single assignment of error lacks merit and
is overruled.
{¶ 60} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
- 35 - [CONTENT PROTECTED]
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-07-083
: OPINION
- vs -
/18/2024
:
CAMERON S. KYLES, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR 2019 10 1671; CR 2019 06 0862
Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.
Yavitch & Palmer Co., L.P.A., and Stephen E. Palmer, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Cameron S. Kyles, appeals the decision of the Butler County
Court of Common Pleas summarily denying his petition for postconviction relief without a
hearing following his convictions for a multitude of serious felony offenses that included,
among others, participating in a criminal gang and aggravated murder. For the reasons Butler CA2023-07-083
outlined below, we affirm the trial court's decision.
Facts and Procedural History
{¶ 2} On June 26, 2019, the Butler County Grand Jury returned a single-count
indictment charging Kyles with one count of participating in a criminal gang. This
indictment was prosecuted under Case No. CR2019-06-0862. Several months later, on
October 18, 2019, the Butler County Grand Jury returned an additional eleven-count
indictment charging Kyles with two counts each of aggravated murder, murder,
aggravated robbery, aggravated burglary, and felonious assault, all of which were
accompanied by firearm and gang specifications, and one count of having weapons while
under disability. This indictment was prosecuted under Case No. CR2019-10-1671. The
two cases were later consolidated and, after Kyles was found competent to stand trial
and his motion to suppress the statements he made to police was denied, proceeded to
a five-day jury trial that began on August 23, 2021.
{¶ 3} On August 27, 2021, the jury returned guilty verdicts on all counts and
specifications set forth within both Case Nos. CR2019-06-0862 and CR2019-10-1671.
On October 19, 2021, the trial court held a sentencing hearing where it sentenced Kyles
to serve an aggregate, indefinite term of life imprisonment with the possibility of parole
after 50 to 53 years, less 733 days of jail-time credit.1 Kyles directly appealed his
conviction to this court and this court affirmed Kyles' conviction in all respects on February
21, 2023. [CITATION] Kyles then appealed this court's decision to the Ohio Supreme Court,
which declined review on June 20, 2023. [CITATION]
1. There is some confusion in the record as it relates to Kyles' sentence being either 46 to 48 years in
prison or 50 to 53 years in prison. However, setting aside that confusion, there is no dispute that Kyles will
first become eligible for parole on September 10, 2068.
Butler CA2023-07-083
Ohio-1979.
{¶ 4} In denying Kyles' appeal, this court overruled Kyles' argument alleging the
trial court erred by denying his motion to suppress the statements he made to police.
More specifically, this court found no merit to Kyles' argument that his Miranda rights
waiver provided to the detective who interviewed him, Detective Stephen Winters, was
not knowingly, intelligently, and voluntarily made. [CITATION] This
court also overruled Kyles' argument that his statements to police should have been
suppressed because Detective Winters improperly continued questioning him after he
asserted his Fifth Amendment right to counsel during Detective Winter's first interview
with him. [CITATION] This court further rejected Kyles' claim that he received
ineffective assistance of counsel upon finding that, even if we were to assume his trial
counsel's performance was deficient, Kyles could not show any resulting prejudice
therefrom. [CITATION] This is in addition to this court noting on three separate occasions
that there was "overwhelming evidence" to establish Kyles' guilt of all counts and
specifications for which he was tried and convicted. [CITATION]
{¶ 5} On February 6, 2023, prior to this court issuing our decision affirming Kyles'
conviction on direct appeal, Kyles filed a petition for postconviction relief. Kyles filed his
petition in accordance with R.C. 2953.21(A)(1)(a)(i). Pursuant to that statute, any person
who has been convicted of a criminal offense, and who claims that there was such a
denial or infringement of the person's rights as to render the judgment "void or voidable"
under the Ohio Constitution or the United States Constitution, "may file a petition in the
court that imposed sentence, stating the grounds for relief relied upon, and asking the
court to vacate or set aside the judgment or sentence or to grant other appropriate relief[.]"
To support his petition, Kyles argued that his trial counsel provided him with ineffective
assistance, thereby depriving him of a fair trial in violation of his "Right to Counsel and
Butler CA2023-07-083
Due Process of Law" as guaranteed to him by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and "comparable provisions" of the Ohio
Constitution.
{¶ 6} Within his petition, Kyles stated three grounds for relief, all three of which
were based on his trial counsel's alleged ineffective assistance. Those three stated
grounds for relief were as follows:2
(1) ineffective assistance of counsel based upon his trial
counsel's purported "failure to conduct and/or request [a]
second competency evaluation" to determine whether he had
the intellectual capacity to stand trial;
(2) ineffective assistance of counsel based upon his trial
counsel's supposed failure to consider his "significant mental
defect" and "obtain a psychological assessment" prior to the
hearing on his motion to suppress to determine whether he
had the intellectual capacity to make a knowing, intelligent,
and voluntary waiver of his Miranda rights; and
(3) ineffective assistance of counsel based upon his trial
counsel's failure to argue, as part of his motion to suppress,
that his Sixth Amendment right to counsel had been violated.
{¶ 7} To support his first and second stated grounds for relief, Kyles attached to
his postconviction relief petition an affidavit and psychological evaluation report from Dr.
John L. Tilley, a clinical and forensic psychologist based out of Columbus, Ohio. Within
those two documents, Dr. Tilley opined that Kyles has a significant "intellectual disability"
that "likely impaired" his ability to provide a knowing and intelligent waiver of his Miranda
rights. Dr. Tilley noted that this included Kyles' low IQ score of 57 and limited reading
comprehension, which Dr. Tilley equated to that of a kindergartener. Dr. Tilley also opined
that, had he been consulted prior to Kyles' trial to conduct a "second opinion" on Kyles'
competency to stand trial, he "likely would have opined" that Kyles was not competent to
2. We have renumbered the three stated grounds raised by Kyles within his petition for postconviction relief
for organizational and readability purposes.
Butler CA2023-07-083
stand trial, and generated a report "highlighting the extent of Mr. Kyles' intellectual
disability, his very low functioning in multiple areas relevant to his adjudicative
competence, and the impairments in his capacities to understand the nature and objective
of the proceedings and assist in his defense." This is in addition to Dr. Tilley stating that,
[SEGMENT 17]
"[w]hile it is recognized that his competence to stand trial was assessed twice in 2019,"
and that "the Court adjudicated him competent to stand trial in accordance with both
evaluations," it was nevertheless his opinion that "an analysis of the data and resulted
from the present evaluation suggest that, the rulings from the Court notwithstanding, Mr.
Kyles' competence to stand trial may have been impaired," thereby providing "likely
opportunities⎯and perhaps even cause⎯for requesting second opinions in both
matters."
{¶ 8} To support his third stated ground for relief, Kyles attached to his
postconviction relief petition the municipal court docket statement and related records that
ultimately resulted in the Butler County Grand Jury issuing the 11-count indictment
against him in Case No. CR2019-10-1671. Based upon those documents, Kyles argued
that by Detective Winters interviewing him after he had been appointed counsel, "the
police violated his Sixth Amendment Right to Counsel," a violation "independent of the
validity of his Miranda waiver" as set forth in his second stated ground for relief. To
support this argument, Kyles set forth the following timeline setting forth the various
interviews Detective Winters had with him on October 13 and 14, 2019:
October 13, 2019, 11:06 a.m. – First interview (Winters)
October 13, 2019, 12:35 p.m. – Email from Dep. Smith to
Winters
October 14, 2019, 8:30 a.m. – Kyles in Middletown Municipal
Court with Counsel
October 14, 2019, 9:30 a.m. – Second Interview (Winters)
Butler CA2023-07-083
October 14, 2019 9:30 a.m. – Second Interview (Winters and
Hughs)
{¶ 9} Based upon this "critical" timeline, Kyles argued that, even assuming his
request to speak with Detective Winters after his first interview with Detective Winters
was knowingly and intelligently made, which Kyles claimed it was not in accordance with
Dr. Tilley's report, "the instigation of formal adversary proceedings triggered the Sixth
Amendment in addition to the Fifth Amendment Miranda concerns. The police were thus
not permitted to question Kyles without his attorney present." Therefore, according to
Kyles, his trial counsel was ineffective for failing "to raise this Sixth Amendment tissue
during the suppression hearing," something which Kyles argued within his petition was
"objectively unreasonable, as standard norms of practice mandate trial counsel raise and
litigate viable constitutional suppression issues."
{¶ 10} On March 2, 2023, the state filed a motion to dismiss Kyles' petition for
postconviction relief based upon the doctrines of res judicata and the law of the case.
The state additionally argued that, even if res judicata and the law of the case doctrines
did not apply, Kyles' petition could be denied on the merits because it failed to set forth
sufficient operative facts to establish grounds for relief. A few months later, on June 20,
2023, the trial court issued a decision granting the state's motion to dismiss, thereby
summarily denying Kyles' petition for postconviction relief without a hearing. In so doing,
the trial court initially noted that Kyles had "argued many of the same issues" in support
of his postconviction relief petition that he had raised with this court as part of his direct
appeal.
{¶ 11} Given the similarity between Kyles' claims, the trial court determined that,
in as much as Kyles was seeking to relitigate those same issues, particularly as it related
to the question of whether Kyles had made a knowing, intelligent, and voluntary waiver of
Butler CA2023-07-083
his Miranda rights, the doctrine of res judicata "would apply to bar granting a post-
conviction petition." In reaching this decision, the trial court noted that "[CITATION] not only
could have, but did, argue the same questions before the appellate court, a body that
rejected each and every contention regarding his competency and the questions of due
process." The trial court also noted that, given that this court had already ruled on many
of the same issues that [CITATION] had raised as grounds for relief within his postconviction
relief petition, the law of the case doctrine forbade it from "refus[ing] to abide" by this
court's decision as it related to those same issues. In so holding, the trial court determined
that:
Nothing presented in the latest filings overcomes the definitive
ruling by the 12th District that [CITATION] knowingly, intelligently
and voluntarily waived his Miranda rights. Likewise, nothing
in the filings overcomes the requirements of [CITATION].
{¶ 12} The trial court did not stop there, however. Rather, "out [of] an
overabundance of caution," the trial court also reviewed [CITATION]' petition on the merits and
determined that [CITATION] had "fail[ed] to establish substantive grounds on any of his claims
for relief in his petition and therefore a hearing is not needed." In so doing, the trial court
determined that [CITATION]' claims that his trial counsel had "failed to fully investigate his
alleged mental deficiency, failed to employ an expert witness, and failed to allow the
expert to testify at his suppression hearing on the issue of understanding his [Miranda]
rights," were all "contrary to the record." In reaching this decision, the trial court initially
stated with respect to [CITATION]' ineffective assistance of counsel claims:
The defendant relies solely upon a review and report of John
L. Tilley, (Tilley), a psychologist retained by the defense, who
posits [CITATION]' intellectual ability precludes him from
understanding the ramifications of his decision and
competency to stand trial.
Butler CA2023-07-083
According to the record, Tilley conducted no face-to-face, or
other interviews of Kyles, forming his opinions solely on the
basis of the psychological reports contained in the record.3
Tilley, an explicitly selected defense expert, opines the
defendant, "may have been impaired" and was "likely
impaired" because of his poor reading skills. These
conclusory claims summarily and conveniently dismiss the
findings of two other experts that Kyles was a savvy 18-year-
old. Even if Kyles was, as Tilley claims, weak in the ways of
the academic world, the defendant was shrewd enough to
recognize his precarious predicament and open negotiations
with the enemy in an effort to improve his indefensible fortress
of culpability.
{¶ 13} Continuing, the trial court then stated:
Kyles's petition for post-conviction relief further fails as to the
claimed ineffective assistance as he does not delineate,
beyond mere speculation and conclusory statements, how
counsel's performance at trial fell below a reasonable
standard or prejudiced him at trial. In fact, the claims are
diametrically opposite of reality as evidenced by the recorded
proceedings where the defense mounted a vigorous assault
of dysfunctional deviance upon the prosecution. Defense
counsel's efforts penetrated the prosecution's labors so
effectively that The State requested, and received, a specific
jury instruction on the question of diminished capacity that
reads:
A contention of diminished capacity means that although the
accused was not insane, due to emotional distress, physical
condition or other factors he could not fully comprehend the
nature of the criminal act he is accused of committing.
Diminished capacity is not a recognized defense in Ohio. You
should disregard any evidence presented during trial used to
support a claim of diminished capacity. You may only
consider evidence of mental capacity if it is demonstrated that
it is being used for some purpose other than asserting the
defense of diminished capacity.
{¶ 14} The trial court additionally stated that, in this case, Kyles' trial counsel
"specifically addressed questions of 'diminished capacity' throughout the trial, fought for,
3. We note that the record does not support this finding. The record instead indicates that Dr. Tilley
conducted two in-person interviews with Kyles, the first on August 22, 2022 while Kyles was imprisoned at
the Lebanon Correctional Institution in Warren County, Ohio for approximately two hours, with the second
interview taking place on January 19, 2023 at the Ross Correctional Institution in Chillicothe, Ohio for an
additional 90 minutes.
Butler CA2023-07-083
and received, two independent 'in-person evaluations' by trained experts, and made the
tactical decision not pursue live testimony as, from a purely speculative point of view, it
may have done more harm to his client's defense than good." Turning then to Kyles' last
remaining ineffective assistance of counsel claim, the trial court stated:
The defense argues that once Kyles invoked his Fifth
Amendment right in Middletown Municipal Court, the police
were forever barred from speaking with the defendant without
counsel. This argument is specious at best.
The Supreme Court of the United States held in [CITATION] that, as is
the case here, a defendant can waive both his Fifth and Sixth
Amendments rights even after invocation. Specifically, since
Kyles initiated the subsequent request to speak with the
police, he forfeited both upon being apprised of his rights
pursuant to Miranda.
[SEGMENT 18]
{¶ 15} The trial court thereafter concluded by finding Kyles' petition for
postconviction relief did nothing more than "construct[] a house of straw" and, in light of
the overwhelming evidence of Kyles' guilt, "the whirlwind of law and reason require that
[Kyles] reap the wages of justice." The trial court noted that this evidence included, even
when taking Kyles' statements to police out of consideration, "evidence from his GPS
tracker, other witnesses and the victim's blood on the money recovered from him," all of
which the trial court found "would be sufficient for a reasonable jury to convict."
Kyles' Appeal and Two Assignments of Error for Review
{¶ 16} On July 19, 2023, Kyles filed a timely notice of appeal from the trial court's
decision. Following briefing by both parties, oral argument was held before this court on
February 12, 2024. Kyles' appeal now properly before this court for decision, Kyles has
raised two assignments of error for review. Those two assignments of error being:
Assignment of Error No. 1:
{¶ 17} THE TRIAL COURT ABUSED ITS DISCRETION, APPLIED INCORRECT
Butler CA2023-07-083
LEGAL STANDARDS, AND ERRONEOUSLY DENIED KYLES' PETITION FOR POST-
CONVICTION RELIEF WITHOUT CONDUCTING A HEARING IN VIOLATION OF R.C.
2953.21(D) AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ERRORED BY DENYING KYLES' PETITION FOR
POST-CONVICTION RELIEF ON THE MERITS WITHOUT A HEARING, THEREBY
DEPRIVING HIM OF HIS RIGHT TO DUE PROCESS OF LAW AND HIS RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
{¶ 19} In both of his assignments of error, Kyles argues the trial court erred by
summarily denying his petition for postconviction relief without holding a hearing; the first
assignment of error challenges the trial court's application of the doctrines of res judicata
and law of the case and the second assignment of error challenges the trial court's
decision, albeit in the alternative, and "out [of] an overabundance of caution," to deny his
postconviction relief petition on the merits. To support his arguments, Kyles has raised
four issues for this court's consideration. After setting forth the appropriate standard of
review, we will address each of those four issues in turn.
Petition for Postconviction Relief Standard of Review
{¶ 20} "In Ohio, persons convicted of criminal offenses may petition a trial court for
postconviction relief if they fit into one of four categories." [CITATION]. Those four categories
are set forth in R.C. 2953.21(A)(1)(a)(i) through (iv). Relevant here is the first category,
- 10 - Butler CA2023-07-083
which "permits a person convicted of a criminal offense to petition the trial court to vacate
his conviction when he believes 'there was such a denial or infringement of [his] rights as
to render the judgment void or voidable under the Ohio Constitution or the Constitution of
the United States.'" [CITATION], quoting R.C.
2953.21(A)(1)(a)(i). When a criminal defendant challenges his conviction through a
postconviction relief petition, the trial court may hold an evidentiary hearing on the issues
raised by the petition. [CITATION], citing R.C. 2953.21(D) thru (F). "An evidentiary hearing is not
automatically guaranteed each time a defendant makes a petition for postconviction
relief," however. [CITATION]. Rather, "[t]he trial court, before granting a hearing on a
petition filed under R.C. 2953.21(A)(1)(a)(i), is required to 'determine whether there are
substantive grounds for relief.'" [CITATION], quoting R.C. 2953.21(D). "A petition presents
substantive grounds for relief when it contains allegations that are sufficient to state a
constitutional claim and the files and records of the case do not affirmatively disprove the
claim." [CITATION], citing [CITATION]; and R.C. 2953.21(F).
{¶ 21} "In determining whether the petition states a substantive ground for relief,
the trial court must consider the entirety of the record from the trial proceedings as well
as any evidence filed by the parties in postconviction proceedings." [CITATION], citing R.C. 2953.21(D). "If the record on its face
demonstrates that the petitioner is not entitled to relief, then the trial court must dismiss
the petition." Id., citing R.C. 2953.21(D) and (E). That is to say, "'[a] trial court properly
denies a defendant's petition for postconviction relief without holding an evidentiary
hearing where the petition, the supporting affidavits, the documentary evidence, the files,
- 11 - Butler CA2023-07-083
and the records do not demonstrate that petitioner set forth sufficient operative facts to
establish substantive grounds for relief.'" [CITATION], quoting [CITATION],
paragraph two of the syllabus. However, "[i]f the record does not on its face disprove the
petitioner's claim, then the court is required to 'proceed to a prompt hearing on the
issues.'" Bunch, quoting R.C. 2953.21(F); see also [CITATION],
¶ 28 ("[t]he defendant is entitled to an evidentiary hearing when the
allegations in the motion demonstrate substantive grounds for relief").
{¶ 22} "A trial court's decision to summarily deny a postconviction petition without
holding an evidentiary hearing will not be reversed absent an abuse of discretion." [CITATION]. "The standard
is deferential, requiring the trial court to engage in more than mere error in law or
judgment." [CITATION]. To that end, for this court to find an abuse of discretion, "we must find that the trial court's
ruling was unreasonable, arbitrary, or unconscionable." [CITATION]. "A decision is unreasonable where a
sound reasoning process does not support it." [CITATION]. "[A]n 'arbitrary' decision is one made 'without
consideration of or regard for facts [or] circumstances.'" [CITATION], quoting Black's Law Dictionary 125 (10th Ed.2014). "An
unconscionable decision may be defined as one that affronts the sense of justice,
decency, or reasonableness." [CITATION].
Kyles' First Issue and Analysis: The Misapplication of the Doctrine of Res Judicata
{¶ 23} In his first issue presented for review, Kyles argues the trial court erred by
- 12 - Butler CA2023-07-083
misapplying the doctrine of res judicata when overruling his petition for postconviction
relief without a hearing. This is because, according to Kyles, the trial court "incorrectly
concluded" that res judicata applied given his postconviction relief petition argued the
same ineffective assistance of counsel claim that this court had already overruled when
denying his direct appeal. That claim being Kyles' argument that his trial counsel provided
him with ineffective assistance by failing to consult with Dr. Tilley, or some other expert
who would have provided him with substantially similar findings to that of Dr. Tilley, as it
relates to whether he had the intellectual capacity to stand trial and to make a knowing,
intelligent, and voluntary waiver of his Miranda rights. We agree the trial court did so err.
However, as explained more fully below, any such error the trial court made by
misapplying the doctrine of res judicata to the case at bar was harmless.
{¶ 24} "It is well established that a trial court may dismiss a postconviction relief
petition on the basis of the doctrine of res judicata." [CITATION]. "The doctrine of res judicata precludes a
convicted defendant 'from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or any claimed lack of due process that was raised or could
have been raised' at trial or on direct appeal." [CITATION], quoting [CITATION]. "So a court reviewing a
postconviction-relief petition generally may not decide a claim that could have been
presented at trial and raised on direct appeal." [CITATION], citing [CITATION]. There's a twist, however, when it comes
to petitions for postconviction relief that are based on the alleged ineffective assistance
of counsel. Id.
{¶ 25} In those cases, "res judicata does not bar claims for postconviction relief,
inter alia, when a petitioner 'must rely on evidence outside the trial record to establish his
- 13 - Butler CA2023-07-083
[SEGMENT 19]
claim for relief.'" [CITATION]
879, ¶ 20, quoting Blanton, citing [CITATION]
Therefore, a petitioner who presents a claim of ineffective assistance of counsel, and who
demonstrates through evidence outside the trial record that their claim either was not, or
could not have been, fairly adjudicated in a direct appeal, that petitioner is provided "a
second opportunity to litigate the claim." (Emphasis sic.) Blanton at ¶ 38. Accordingly,
where a defendant petitioning for postconviction relief has brought forth evidence outside
the record of ineffective assistance of counsel, that showing is sufficient to, at the very
least, "'avoid dismissal on the basis of res judicata.'" Id. at ¶ 31, quoting [CITATION]
{¶ 26} In this case, Kyles brought forth evidence outside the record of ineffective
assistance of counsel to avoid the entirety of his petition for postconviction relief being
dismissed on the basis of res judicata. That being Dr. Tilley's affidavit and psychological
evaluation indicating Kyles lacked the intellectual capacity to both stand trial and to make
a knowing, intelligent, and voluntary waiver of his Miranda rights. Therefore, given the
principles set forth above, we must necessarily agree with Kyles' argument that the trial
court erred by misapplying the doctrine of res judicata to the case at bar to dismiss the
entirety of Kyles' petition for postconviction relief. The error, however, was harmless.
{¶ 27} "'[A]n error is harmless where there is no reasonable possibility that it
contributed to an accused's conviction, such as where there is overwhelming evidence of
the accused's guilt or some other indicia that the error did not contribute to the conviction.'"
[CITATION]
State v. Cox, [CITATION]
Such is the
case here. This is because, contrary to Kyles' claim, "merely providing evidence outside
the record is not sufficient to entitle a petitioner to a hearing." [CITATION]
at ¶ 21. That is to say, "simply overcoming the res judicata bar through the introduction
- 14 - Butler CA2023-07-083
of evidence outside the record is not sufficient," in and of itself, to necessitate the trial
court holding a hearing on the matter. [CITATION] at ¶ 31.
{¶ 28} Rather, to be entitled to a hearing, "a petitioner 'must proffer evidence which,
if believed, would establish not only that his trial counsel had substantially violated at least
one of a defense attorney's essential duties to his client but also that said violation was
prejudicial to the [petitioner].'" (Brackets sic.) Id., quoting [CITATION]. "If
the record on its face demonstrates that the petitioner is not entitled to relief, then the trial
court must dismiss the petition." [CITATION], ¶
24, citing R.C. 2953.21(D) and (E). "If the record does not on its face disprove the
petitioner's claim, then the court is required to 'proceed to a prompt hearing on the
issues.'" Id., quoting R.C. 2953.21(F). Thus, in cases where the defendant has brought
forth evidence outside the record of ineffective assistance of counsel to avoid dismissal
on the basis of res judicata, such as the case here, a two-part inquiry applies to determine
whether the defendant is entitled to a hearing on the matter. [CITATION] at
¶ 17. That two-part inquiry provides the following: (1) "Has the petitioner introduced
competent evidence of ineffective assistance that was not included in the trial record?"
and (2) "if so, does that evidence present substantive grounds for relief; that is, if believed,
would the newly presented evidence—together with any evidence in the trial record—
establish that counsel was ineffective?" [CITATION] at ¶ 33. It is this second prong where
Kyles' claim fails.
{¶ 29} To support this portion of his ineffective assistance of counsel claim, Kyles
relies on the affidavit and psychological evaluation report provided by Dr. Tilley. However,
after a thorough review of the record, we find the opinions offered by Dr. Tilley within his
affidavit and psychological evaluation report, together with the evidence contained within
the trial court record, do not present substantive grounds that would entitle Kyles to relief.
- 15 - Butler CA2023-07-083
That is to say, even when considering the entirety of the record from the trial court
proceedings, in conjunction with Dr. Tilley's affidavit and psychological evaluation report
attached to Kyles' petition for postconviction relief, Kyles cannot establish that his trial
counsel provided him with ineffective assistance either by (1) failing "to conduct and/or
request [a] second competency evaluation" to determine whether he had the intellectual
capacity to stand trial; or by (2) failing to consider his "significant mental defect" and
"obtain a psychological assessment" prior to the hearing on his motion to suppress to
determine whether he had the intellectual capacity to make a knowing, intelligent, and
voluntary waiver of his Miranda rights as alleged. Therefore, for these reasons, and for
the reasons set forth more fully below, Kyles' first argument lacks merit.
{¶ 30} "The standard by which we review claims of ineffective assistance of
counsel is well established." [CITATION]. To establish
ineffective assistance, a defendant must show (1) that counsel's performance was
deficient, and (2) that counsel's deficient performance prejudiced the defendant.
[CITATION]. Courts
determine deficient performance by asking whether counsel's conduct "fell below an
objective standard of reasonableness." Id. at 688. When making this determination, the
reasonableness of counsel's conduct must be judged based on "the facts of the particular
case, viewed as of the time of counsel's conduct." Id. at 690. Only when counsel's errors
were "so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" has counsel engaged in deficient performance. Id.
at 687. To establish prejudice, "[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 694. This requires the errors to be so significant as to
"undermine confidence in the outcome." Id. "A defendant's failure to make a sufficient
- 16 - Butler CA2023-07-083
showing of either prong of the Strickland inquiry is fatal to his claim of ineffective
assistance." [CITATION], 171 Ohio St.3d 353, 2022-Ohio-4259, ¶ 31, citing id. at 697.
{¶ 31} Here, Kyles argues that his trial counsel's failure to consult with Dr. Tilley, or
some other expert who would have provided him with substantially similar findings to that
of Dr. Tilley, constituted deficient performance under the first prong of the Strickland
inquiry. However, although Kyles' petition for postconviction relief did not need to
"definitively establish" either his trial counsel counsel's deficiency or whether he was
prejudiced by it to warrant the trial court holding a hearing on the matter, [CITATION], the
failure of Kyles' trial counsel to seek out what would have amounted to a third competency
evaluation, not a second like Kyles suggests, does not fall anywhere near what this court
would consider deficient performance when viewed against an objective standard of
reasonableness.
{¶ 32} We instead agree with the trial court's finding that, "as to the claimed
ineffective assistance," Kyles "does not delineate, beyond mere speculation and
conclusory statements, how counsel's performance at trial fell below a reasonable
standard or prejudiced him at trial." This includes Kyles' claim that, if his trial counsel had
provided the trial court with a psychological evaluation report like that of Dr. Tilley's, he
never would have been deemed competent to stand trial, thus causing a delay in the
proceedings "unless and until [his] competency was restored" in accordance with R.C.
2945.37(G).4 "Such speculation is insufficient to establish ineffective assistance." [CITATION], 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 217; see, e.g., [CITATION]
4. Pursuant to R.C. 2945.37(G), a defendant is incompetent to stand trial if he or she "is incapable of
understanding the nature and objective of the proceedings against the defendant or of assisting in the
defendant's defense * * *." If, after a hearing, the trial court finds the defendant incompetent to stand trial,
the trial court "shall enter an order authorized by section 2945.38 of the Revised Code." "R.C. 2945.38
governs the disposition of a defendant after an initial determination that the defendant is not competent to
stand trial and sets forth the procedures for treatment and evaluation orders." [CITATION]
- 17 - Butler CA2023-07-083
[CITATION] (counsel did not provide appellant with ineffective
assistance of counsel where appellant's ineffective assistance of counsel claim was
based on "counsel's failure to act," thereby limiting appellant to mere speculation and
conjecture as to counsel's alleged deficiency). Kyles' claim otherwise lacks merit.
[SEGMENT 20]
{¶ 33} We also agree with the trial court's finding that Kyles' ineffective assistance
of counsel claims were "diametrically opposite of reality as evidenced by the recorded
proceedings where the defense mounted a vigorous assault of dysfunctional deviance
upon the prosecution." The record indicates that these efforts were so effective that, as
the trial court stated within its decision, they "penetrated the prosecution's labors so
effectively" that it necessitated the state requesting, and thereafter receiving, "a specific
jury instruction on the question of diminished capacity." This is in addition to the trial
court's finding Kyles' trial counsel had "specifically addressed questions of 'diminished
capacity' throughout the trial, fought for, and received, two independent 'in-person
evaluations' by trained experts, and made the tactical decision not to pursue live
testimony as, from a purely speculative point of view, it may have done more harm to his
client's defense than good." Given the record in this case, we agree with the trial court's
findings.
{¶ 34} Regardless, even if we were to assume Kyles' petition was sufficient on its
face to raise an issue as to whether Kyles' trial counsel was deficient for failing to seek
out that third competency evaluation, which it was not, Kyles' petition is wholly lacking as
it relates to how that failure subjected him to any resulting prejudice as required by the
second prong of the Strickland inquiry. This is because, even if Kyles' trial counsel had
obtained a report like that provided to him by Dr. Tilley, that would have done nothing
more than created a battle of the experts on the issue of whether Kyles had the intellectual
capacity to stand trial and to make a knowing, intelligent, and voluntary waiver of his
- 18 - Butler CA2023-07-083
Miranda rights. That Kyles' trial counsel chose not to wage that war after having already
received two other competency evaluations indicating Kyles was competent to stand trial
was clearly a strategic decision, one that this court finds is not even all that debatable
given the facts of this case.
{¶ 35} This is significant when considering "even debatable strategic and trial
tactics do not constitute ineffective assistance of counsel." [CITATION] This holds true "even if, in hindsight, it looks
as if a better strategy had been available." [CITATION] This is a well-
established principle given that this court must "strongly presume that defense counsel
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment," [CITATION] for it is "all too tempting" to "second-guess counsel's
assistance after conviction or adverse sentence * * *." [CITATION]
Therefore, for these reasons, Kyles' second argument also lacks merit.
{¶ 36} What is more, and what simply cannot be ignored, is the fact that the state
presented overwhelming evidence of Kyles' guilt on all counts and specifications for which
he was tried and convicted, a determination that this court made on three separate
occasions in our decision denying Kyles' direct appeal. See [CITATION] This evidence included, as noted by the trial court, "evidence from his
GPS tracker, other witnesses and the victim's blood on the money recovered from him,"
all of which "would be sufficient for a reasonable jury to convict." The trial court found this
to be the case even when taking Kyles' confession out of the equation. We agree.
Therefore, given the overwhelming evidence of Kyles' guilt presented at trial, any alleged
deficiency in his trial counsel's performance for failing to seek out that third competency
- 19 - ```
Butler CA2023-07-083
evaluation simply cannot be found prejudicial under the second prong of the Strickland
inquiry set forth above. See, e.g., [CITATION], ¶
273 ("given the overwhelming evidence of guilt in this case, counsel's alleged [deficient
performance] cannot be found prejudicial under Strickland").
{¶ 37} In so holding, we note that contrary to what Kyles' would like this court to
believe, Kyles was not convicted because of any alleged ineffective assistance provided
to him by his trial counsel. Kyles was instead convicted based upon the overwhelming
evidence establishing his guilt beyond a reasonable doubt. See, e.g., [CITATION], ¶ 62
(denying appellant's ineffective assistance of counsel claim where the record plainly
indicated "trial counsel did fully investigate this case and zealously represent [appellant],"
thereby leading to this court to find appellant "was not convicted based on ineffective
assistance of counsel, but instead [appellant's] conviction was based on the overwhelming
evidence presented at trial"). Accordingly, Kyles' third argument likewise lacks merit.
{¶ 38} For the reasons outlined above, and although we agree with Kyles'
argument that the trial court erred by misapplying the doctrine of res judicata to the case
at bar, such error was harmless. Being harmless error, this court need not reverse and
remand with respect to Kyles' claims alleging his trial counsel was ineffective for (1) failing
"to conduct and/or request [a] second competency evaluation" to determine whether he
had the intellectual capacity to stand trial; or (2) failing to consider his "significant mental
defect" and "obtain a psychological assessment" prior to the hearing on his motion to
suppress to determine whether he had the intellectual capacity to make a knowing,
intelligent, and voluntary waiver of his Miranda rights. This is because, when applying
the necessary two-part inquiry set forth above, the opinions offered by Dr. Tilley within his
affidavit and psychological evaluation report, together with the evidence contained within
- 20 -
``` Butler CA2023-07-083
the trial court record, do not present substantive grounds that would entitle Kyles to relief.
Therefore, because the record on its face demonstrates that Kyles is not entitled to relief,
the trial court did not abuse its discretion by denying Kyles' postconviction relief petition
without a hearing. Accordingly, finding no error in the trial court's decision, Kyles' first
issue lacks merit.
Kyles' Second Issue and Analysis: The Law of the Case Doctrine
{¶ 39} In his second issue presented for review, like that of his first, Kyles argues
the trial court erred by misapplying the law of the case doctrine when overruling his
petition for postconviction relief without a hearing. However, given the resolution of Kyles'
first issue set forth above, this issue has now been rendered moot. Pursuant to App.R.
12(A)(1)(c), "[u]nless an assignment of error is made moot by a ruling on another
assignment of error," a court of appeals shall "decide each assignment of error and give
reasons in writing for its decision." "[A]n assignment of error is moot when an appellant
presents issues that are no longer live as a result of some other decision rendered by the
appellate court." [CITATION], ¶ 26. Therefore,
although presented as an issue for review rather than as a full-fledged assignment of
error, Kyles' second issue is nevertheless moot in accordance with App.R. 12(A)(1)(c)
and need not be addressed by this court.
Kyles' Third Issue and Analysis: The "But For" Standard of Prejudice
{¶ 40} In his third issue presented for review, Kyles argues the trial court erred by
"expressly relying on an erroneously high 'but for' standard for prejudice" as it relates to
the second prong⎯the prejudice prong⎯of the Strickland ineffective assistance of
counsel inquiry. To support this claim, Kyles directs this court's attention to [CITATION],
wherein the Ohio Supreme Court stated that, "[r]egarding the prejudice
prong, the defendant must prove that there is a 'reasonable probability' that counsel's
- 21 - Butler CA2023-07-083
deficiency affected the outcome of the defendant's proceedings." Therefore, according
to [CITATION], "the test for 'prejudice' is not the 'but for' causation test applied by the trial court,"
it is instead the "reasonable probability" test set forth by the Ohio Supreme Court in [CITATION]
that applies. What [CITATION] seems to overlook, however, is that the Ohio Supreme Court in
[CITATION] cited directly to [CITATION], for this proposition of law, a page in
which the United States Supreme Court specifically held that, to establish prejudice in an
ineffective assistance of counsel claim:
The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.
(Emphasis added.)
{¶ 41} That the Ohio Supreme Court in [CITATION] paraphrased the United States
Supreme Court's decision in [CITATION] rather than providing a direct, and more complete
quote of the United Supreme Court's holding in that case, does not mean the standard in
Ohio for establishing prejudice in an ineffective assistance of counsel claim was changed
in [CITATION]. Had that been the case, the Ohio Supreme Court certainly would have made
that clear given the sheer amount of times [CITATION] has been cited to for that proposition
of law in Ohio. This includes over 70 times by the Ohio Supreme Court alone. That is
[SEGMENT 21]
to say nothing of the fact that, according to this court's research, every Ohio appellate
court has continued to use the "but for" standard of prejudice when reviewing ineffective
assistance of counsel claims after the Ohio Supreme Court's decision in [CITATION] was
released. This includes over ten times by this court, the most recent being just over two
5. At the time of this writing, that portion of [CITATION] had been cited by Ohio appellate courts nearly 3,000
times, with countless other decisions applying the same "but for" standard of prejudice without citing directly
to [CITATION]. See, e.g., [CITATION].
- 22 - Butler CA2023-07-083
months prior to this case being submitted to this court for decision. See [CITATION],
12th Dist. Butler No. CA2023-03-037, 2023-Ohio-4354, ¶ 16. Accordingly, finding no merit
to Kyles' claim raised herein, Kyles' third issue lacks merit.
Kyles' Fourth Issue and Analysis: The Sixth Amendment Right to Counsel
{¶ 42} In his fourth issue presented for review, Kyles argues the trial court erred by
summarily denying his postconviction relief petition without a hearing on his claim that he
received ineffective assistance of counsel based upon his trial counsel's failure to argue,
as part of his motion to suppress, that his Sixth Amendment right to counsel had been
violated. However, after a thorough review of the record, we agree with the trial court's
decision finding Kyles' argument that, once he invoked his Fifth Amendment right to
counsel, the police were forever barred from speaking with the defendant without counsel,
"specious at best." This is because, as the trial court properly determined, "a defendant
can waive both his Fifth and Sixth Amendments rights even after invocation" pursuant to
the United States Supreme Court's decision in [CITATION], which held "the Sixth Amendment right to counsel may be waived by
a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent."
Id. at 786.
{¶ 43} Contrary to Kyles' claim, "[n]othing in the Sixth Amendment prevents a
suspect charged with a crime and represented by counsel from voluntarily choosing, on
his own, to speak with police in the absence of an attorney." [CITATION]. Therefore, "[a]lthough a defendant may sometimes
later regret his decision to speak with police, the Sixth Amendment does not disable a
criminal defendant from exercising his free will." Id. at 353. That is exactly what Kyles
did here, thus negating any claim that Kyles received ineffective assistance based upon
his trial counsel's failure to argue, as part of his motion to suppress, that his Sixth
- 23 - Butler CA2023-07-083
Amendment right to counsel had been violated. Had Kyles' trial counsel chosen to raise
such an issue with the trial court, such a claim would have surely been denied outright as
having no basis in law or in fact, thus rendering any such argument futile. "Trial counsel
is not ineffective for failing to make a futile argument." [CITATION]. Accordingly, finding no merit to Kyles' claim
raised herein, Kyles' fourth issue lacks merit.
Conclusion
{¶ 44} For the reasons outlined above, and finding no merit to any of the four
issues raised by Kyles' herein, Kyles' two assignments of error challenging the trial court's
decision summarily denying his petition for postconviction relief without a hearing lack
merit and are overruled. Therefore, having now overruled the two assignments of error
advanced by Kyles in support of his appeal, Kyles' appeal from the trial court's decision
summarily denying his postconviction relief petition without a hearing is denied.
{¶ 45} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
- 24 -
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as [CITATION].]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-134
THE STATE OF OHIO, APPELLEE, v. JOHNSON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as [CITATION].]
Criminal law—Postconviction relief—R.C. 2953.21 and 2953.23—Recantation
evidence—Trial court could have no jurisdiction to entertain untimely,
successive petition for postconviction relief unless petitioner established
(1) that he was unavoidably prevented from timely discovering that victim
had doubts about victim’s trial testimony and (2) that he would not have
been convicted but for constitutional error at trial—R.C. 2953.23 requires
a petitioner to submit evidence of specific facts beyond supporting
affidavit’s date to explain why petitioner was unable to timely obtain an
affidavit from recanting witness—A conviction based on false testimony is
not a constitutional violation unless the state had knowledge of testimony’s
falsity—Court of appeals’ judgment affirmed.
(No. 2022-0488—Submitted April 18, 2023—Decided January 18, 2024.)
APPEAL from the Court of Appeals for Cuyahoga County, SUPREME COURT OF OHIO
No. 110347, 2022-Ohio-81.
__________________
DETERS, J.
{¶ 1} Ohio law permits a person convicted of a criminal offense to petition
the trial court to vacate his conviction when he believes “there was such a denial or
infringement of [his] rights as to render the judgment void or voidable under the
Ohio Constitution or the Constitution of the United States.”
R.C. 2953.21(A)(1)(a)(i). But the statutory scheme governing such postconviction
relief limits offenders to one petition and circumscribes the time for filing. R.C.
2953.23 and 2953.21(A)(2). A trial court generally has no jurisdiction to consider
an untimely or successive petition. [CITATION]. This jurisdictional bar, however, is not
insurmountable. A petitioner can overcome the bar if he shows that he was
“unavoidably prevented” from discovering the facts on which his claim relies and
that but for constitutional error at trial, he would not have been convicted. R.C.
2953.23(A)(1); [CITATION], ¶ 20.
{¶ 2} Years after a jury found appellant, Eric Johnson, guilty of attempted
murder and various other offenses, he invoked the postconviction-relief statutes and
petitioned the trial court in a bid to have his convictions vacated. His petition was
untimely and successive. To satisfy the jurisdictional requirements, Johnson relied
on an affidavit of the victim in which the victim called into question his
identification of Johnson as the assailant soon after the attack and at trial. Was that
evidence sufficient to rebut Ohio’s general prohibition on untimely, successive
postconviction petitions?
{¶ 3} The trial court and the Eighth District Court of Appeals said no. We
agree. Based on the plain language of Ohio’s postconviction statutes, Johnson bore
the burden of proving not only that he was prevented, but that he was unavoidably
January Term, 2024
prevented, from timely discovering the victim’s recantation. Reference to the date
that such an affidavit was executed or provided does not, standing alone, satisfy his
burden. Because Johnson provided no additional evidence as to why he could not
timely obtain an affidavit from the witness, we affirm the Eighth District’s
judgment.
I. BACKGROUND
A. Johnson is convicted following a jury trial
{¶ 4} While walking in Cleveland during the early morning of August 26,
2012, James Keith was robbed and shot. As the Eighth District noted below, Keith
told police that the shooter was an acquaintance that he knew as “E,” though he did
not know E’s given name. [CITATION], ¶ 2. Police obtained a photograph of the
person known as “E” and prepared a photo array with him in it. Keith viewed the
photo array and identified Johnson as E.
{¶ 5} Johnson was indicted on seven counts relating to the attack on Keith:
one count of kidnapping, two counts of aggravated robbery, two counts of felonious
assault, one count of attempted murder, and one count of petty theft. Following a
jury trial during which Keith again identified Johnson as the assailant, the jury
found Johnson guilty on all counts. He was sentenced to an aggregate prison term
of 21 years. The Eighth District affirmed Johnson’s convictions on direct appeal.
[CITATION], ¶ 1-2, 74.
B. Johnson’s postconviction proceedings
{¶ 6} Johnson’s efforts to obtain postconviction relief began while his direct
appeal was pending. The trial court denied Johnson’s first petition for
postconviction relief, which alleged that he had received ineffective assistance of
counsel. [CITATION], ¶ 5-6. The Eighth District affirmed. Id. at ¶ 25-26. In 2017,
Johnson attempted to file a second petition for postconviction relief, alleging that his
attempted-felony-murder offense was not a cognizable offense in Ohio. [CITATION]
[SEGMENT 22]
SUPREME COURT OF OHIO
[CITATION]. That petition was both untimely and
successive, and the trial court denied Johnson’s motion for leave to file the petition.
Id. at ¶ 7. The Eighth District affirmed that judgment. Id. at ¶ 12-13.
{¶ 7} Johnson’s third petition for postconviction relief, filed on November
13, 2020, is the subject of this appeal. This time, Johnson claimed that Keith had
recanted his trial testimony identifying Johnson as his attacker. In a handwritten
affidavit dated August 26, 2020, Keith distanced himself from his trial testimony.
He stated in the affidavit that his “only recollection of [his] assailant [was] that [the
assailant] was an African American man with gold teeth” and that he does not “have
much of a memory of the night of the incident after being placed in the ambulance.”
Commenting on his trial testimony, he explained in the affidavit that he had “felt
pressured by [a police detective] to * * * testify against Mr. Johnson even though
[he] wasn’t sure [Johnson] was the person who committed these crimes against
[him].” And he revealed that he believes that he “identified the wrong person” as
his attacker and that he has had doubts about his trial testimony for “the past seven
years.”
{¶ 8} The trial court denied Johnson’s petition without a hearing, and the
court of appeals affirmed that decision. [CITATION] at ¶ 22-23. We accepted
jurisdiction over Johnson’s appeal to address the following proposition of law:
A defendant’s rights to due process of law and a fair trial
pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution and Section 16, Article I of the Ohio
Constitution are violated when the trial court denies a defendant’s
petition for postconviction relief based on newly discovered
evidence and is in contravention to the precedent recently
established by this Court’s recent decision in [CITATION].
January Term, 2024
See [CITATION].
II. ANALYSIS
A. Ohio’s postconviction-petition scheme
{¶ 9} In Ohio, “[a]ny person who has been convicted of a criminal offense
* * * and who claims that there was such a denial or infringement of the person’s
rights as to render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States” is permitted to “file a petition in the court that
imposed [the] sentence, * * * asking the court to vacate or set aside the judgment
or sentence.” R.C. 2953.21(A)(1)(a). But a person has a limited time within which
to do so. “Except as otherwise provided in [R.C. 2953.23], a petition * * * shall be
filed no later than three hundred sixty-five days after the date on which the trial
transcript is filed in the court of appeals in the direct appeal of the judgment of
conviction * * *.” R.C. 2953.21(A)(2)(a).1
{¶ 10} A trial court does not have subject-matter jurisdiction to adjudicate
a postconviction petition that is untimely—i.e., filed outside the statutory deadline
under R.C. 2953.21(A)(2)—or successive—i.e., a second or subsequent petition.
See [CITATION], at ¶ 36, 38.
There are two exceptions to this jurisdictional bar. See R.C. 2953.23(A)(1) and (2).
One is relevant here. A trial court may entertain an untimely or successive petition
if “the petitioner shows that the petitioner was unavoidably prevented from
discovery of the facts upon which the petitioner must rely to present the claim for
relief” and “[t]he petitioner shows by clear and convincing evidence that, but for
1. At the time of Johnson’s convictions, the deadline for filing a petition for postconviction relief
was 180 days, not 365. See former R.C. 2953.21(A)(2), 2010 Sub.S.B. No. 77. The shorter deadline
makes no material difference in this case because Johnson’s petition was filed well after the statutory
deadline regardless of whether it was 180 days or 365.
SUPREME COURT OF OHIO
constitutional error at trial, no reasonable factfinder would have found the petitioner
guilty.”2 R.C. 2953.23(A)(1)(a) and (b).
{¶ 11} “We review de novo whether the trial court had subject-matter
jurisdiction to entertain [a] petition [for postconviction relief].” [CITATION] at ¶ 20, citing [CITATION] at ¶ 24.
B. Johnson’s petition did not satisfy R.C. 2953.23(A)(1)
{¶ 12} The petition for postconviction relief at issue was untimely and
successive under R.C. 2953.21(A): it was Johnson’s third petition for
postconviction relief under R.C. 2953.21, and it was filed outside the statutory
deadline following the filing of the trial-court transcript in Johnson’s direct appeal
of his convictions. Accordingly, the trial court had no jurisdiction to consider the
petition unless (1) Johnson established that he was unavoidably prevented from
discovering Keith’s recantation before the statutory deadline and (2) he showed “by
clear and convincing evidence that, but for constitutional error at trial,” he would
not have been convicted, R.C. 2953.23(A)(1). A petitioner like Johnson must
satisfy both of those requirements before the trial court may entertain his petition;
Johnson satisfied neither.
C. The burden is on Johnson to establish that he was unavoidably prevented
from discovering Keith’s recantation before the deadline
{¶ 13} R.C. 2953.23 puts the onus on the petitioner to show that he was
unavoidably prevented from discovering the facts on which his petition relies.
R.C. 2953.23(A)(1)(a). But Johnson maintains that our recent decision in [CITATION]
shifted to the state the burden to demonstrate that the petitioner was capable of
2. A petitioner need not show that he was unavoidably prevented from discovering the facts on
which the petition is based if he establishes that “subsequent to the [statutory deadline] or to the
filing of an earlier petition, the United States Supreme Court recognized a new federal or state right
that applies retroactively to persons in the petitioner’s situation, and the petition asserts a claim
based on that right.” R.C. 2953.23(A)(1)(a). That exception does not apply here.
January Term, 2024
discovering the evidence sooner. Not so. Construing [CITATION] in that fashion not
only misreads that case’s holding but also turns R.C. 2953.23 on its head.
{¶ 14} In [CITATION], at
¶ 2, the petitioner’s claims relied largely on the state’s failure to disclose a report
prior to trial. The petitioner alleged that under [CITATION], the state violated his due-process rights by
withholding evidence favorable to his defense. [CITATION] at ¶ 2, 11. We considered
the propriety of the [CITATION] claim on two separate fronts: (1) whether res judicata
barred the claim, [CITATION] at ¶ 16-18, and (2) whether the petitioner was unavoidably
prevented from timely discovering the basis for his petition as required by
R.C. 2953.23, [CITATION] at ¶ 21-25.
{¶ 15} With respect to the res judicata question, we held that the state bore
the burden of proving that the petitioner could have raised the [CITATION] claim in a
previous postconviction petition, because res judicata was invoked by the state.
[CITATION] at ¶ 17-18. After dispensing with the state’s res judicata argument, this court
considered the effect of the [CITATION] claim under R.C. 2953.23’s “unavoidably
prevented from discovery of the facts” requirement. [CITATION] at ¶ 21-25.
{¶ 16} Prior to [CITATION], Ohio courts typically required a postconviction
petitioner to “show that he was unaware of the evidence he [was] relying on and
that he could not have discovered the evidence by exercising reasonable diligence.”
Id. at ¶ 21. But we determined in [CITATION] that requiring the demonstration of
reasonably diligent attempts to discover [CITATION] materials would violate the United
States Supreme Court’s pronouncement that “criminal defendants have no duty to
‘scavenge for hints of undisclosed [CITATION] material.’ ” [CITATION] at ¶ 24, quoting [CITATION]. Thus, we
held that “when a defendant seeks to assert a [CITATION] claim in an untimely or
successive petition for postconviction relief, the defendant satisfies the
‘unavoidably prevented’ requirement contained in R.C. 2953.23(A)(1)(a) by
[SEGMENT 23]
SUPREME COURT OF OHIO
establishing that the prosecution suppressed the evidence on which the defendant
relies.” Id. at ¶ 25. Accord [CITATION], ¶ 17 (“a defendant may satisfy the ‘unavoidably prevented’
requirement contained in Crim.R. 33(B) by establishing that the prosecution
suppressed the evidence on which the defendant would rely”).3
{¶ 17} Properly understood, [CITATION] reconciles the burden of proof in
R.C. 2953.23(A)(1) with the dictates of Brady. What [CITATION] does not do is
eliminate a petitioner’s burden of proof. Nor could this court have done so. The
General Assembly chose to place the burden of proof squarely on the shoulders of
postconviction petitioners such as Johnson by enacting the requirement that “the
petitioner show[] that the petitioner was unavoidably prevented from discovery of
the facts upon which the petitioner must rely,” R.C. 2953.23(A)(1)(a).
{¶ 18} Holding as Johnson would have us do—that the petitioner does not
bear that burden—would transmogrify the statute. Thus, we reaffirm today that a
petitioner who files an untimely or successive petition for postconviction relief
under R.C. 2953.21 bears the burden of showing that he was unavoidably prevented
from discovering the evidence on which the petition relies. A petitioner may make
the required showing either by establishing a violation under Brady, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215, or by demonstrating that he was previously unaware
of the evidence on which the petition relies and could not have discovered it by
exercising reasonable diligence.
. Johnson did not meet his burden
{¶ 19} Although Johnson contends that Keith’s trial testimony identifying
him as the assailant was the result of police pressure, he did not raise a Brady
3. Crim.R. 33(B), which governs untimely motions for a new trial, likewise requires the defendant
to prove that he was “unavoidably prevented” from discovering the evidence on which he relies.
“ ‘The “unavoidably prevented” requirement in Crim.R. 33(B) mirrors the “unavoidably prevented”
requirement in R.C. 2953.23(A)(1).’ ” [CITATION], quoting [CITATION], ¶ 28.
January Term, 2024
claim in his petition for postconviction relief. So to carry his burden under
R.C. 2953.23(A)(1), he was instead required to submit evidence showing that he
was unavoidably prevented from discovering that Keith had doubts about his
identification of him. The next question, then, is whether a recanting witness’s
affidavit dated after the postconviction-petition deadline has passed is sufficient to
satisfy that standard.
{¶ 20} The parties propose very different answers to this question. Johnson
contends that the bare fact that Keith’s recantation affidavit was executed in 2020—
long after Johnson’s postconviction-petition deadline expired—suffices. Details
such as the reasons for and the timing of the affidavit could, according to Johnson,
be explored during a hearing on the petition.
{¶ 21} Johnson’s preferred approach is consonant with a line of Ohio
appellate-court cases holding that an affidavit recanting testimony is, by itself,
sufficient to establish that the petitioner was unavoidably prevented from timely
submitting the evidence when the affidavit was obtained after the deadline. See,
e.g., [CITATION] (requiring a hearing on a motion for a new trial “whenever an appellant
produces a recanting affidavit after [the deadline for filing the motion]”); [CITATION]
(holding, in the context of a motion for a new trial, that the defendant was unavoidably prevented
from discovering the evidence relied on, based on recanting witness’s statement
that the defendant “was neither aware of the contents of the affidavit nor aware of
the fact that [the witness] would be willing to give such an affidavit, until * * * the
date of the * * * affidavit”).
{¶ 22} Other Ohio courts look beyond the date of the affidavit, however. In
those cases, the courts held that an affidavit’s being dated beyond the deadline is
not prima facie evidence that the petitioner was unavoidably prevented from timely
discovering the recantation. See, e.g., [CITATION].
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16CA3765, 2017-Ohio-574, ¶ 15 (determining, in the context of a motion for a new
trial, that “[t]he date upon which [the defendant] became aware of [the recanting
witness’s] statement is not prima facie evidence that [the defendant] was
unavoidably prevented from discovering [the] statement during [the period for
filing a motion for a new trial]”); [CITATION], 2017-Ohio-637, ¶ 54 (holding, in the context of a motion for a new
trial, that untimely affidavits “that fail to offer a sufficient explanation as to why
evidence could not have been obtained sooner are inadequate to show that the
movant was unavoidably prevented from obtaining the evidence within the
prescribed time”). It is this latter rule that the state urges us to adopt.
{¶ 23} Which approach is correct? The answer lies in the words of R.C.
2953.23. “When the meaning of a statute is clear and definite, it must be applied
as written,” [CITATION], 2023-Ohio-1456, __ N.E.3d __,
¶ 11, because “ ‘an unambiguous statute means what it says,’ ” [CITATION],
quoting [CITATION], 164, 359 N.E.2d 1371 (1977). Words may not be added or deleted
according to judicial whimsy. [CITATION] at 631.
{¶ 24} Here, R.C. 2953.23(A)(1)(a) requires a petitioner to show that he
was “unavoidably prevented”—not merely “prevented”—from discovering the
facts on which he would rely. (Emphasis added.) “Unavoidable” means “not
avoidable” or “inevitable.” Merriam-Webster’s Collegiate Dictionary 1360 (11th
Ed.2003). And something is “inevitable” if it is “incapable of being avoided or
evaded.” Id. at 638. Keeping in mind that R.C. 2953.23 means what it says, a
petitioner filing an untimely postconviction petition must show that any delay in
discovering the facts undergirding the petition was “incapable of being avoided or
evaded,” Merriam-Webster’s Collegiate Dictionary at 638.
{¶ 25} The light that an affidavit’s date sheds on that issue is dim, at best.
A date merely reveals when the affidavit was executed or provided, not when the
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testimony it contains became available. Without an explanation of how the
recantation was discovered, the information essential to the R.C. 2953.23 inquiry
remains cloaked in darkness. It is this type of information that bears on the
petitioner’s ability to avoid delay in discovering recanted testimony.
{¶ 26} Johnson argues that questions concerning efforts to discover a
recantation and the timing of a supporting affidavit should be explored at a hearing.
But R.C. 2953.23 dictates otherwise. Remember, the petitioner bears the burden of
proving that he was unavoidably prevented from discovering the evidence on which
he must rely, before the trial court even has subject-matter jurisdiction to consider
the petition. See R.C. 2953.23(A)(1); [CITATION], at ¶ 24, 36, 38. Therefore, it is the petitioner’s duty to
present sufficient evidence to carry that burden at the time he files the petition. And
there is no practical reason why a hearing might be necessary for the petitioner to
satisfy this burden. If testimony can be elicited at a hearing, it can be attested to in
an affidavit. We therefore reject Johnson’s argument that regardless of the
circumstances, a hearing is required whenever a petitioner produces an affidavit
from a witness recanting the witness’s testimony.
{¶ 27} Accepting an affidavit’s date as prima facie evidence satisfying the
strictures of R.C. 2953.23(A)(1)(a) would effectively eliminate the word
“unavoidably” from the statute. Thus, we hold that R.C. 2953.23(A)(1)(a) requires
a petitioner to submit evidence of specific facts beyond the supporting affidavit’s
date to explain why the petitioner was unable to timely obtain an affidavit from the
recanting witness.
{¶ 28} Turning to the facts of this case, we conclude that Johnson did not
carry his burden under R.C. 2953.23. The only evidentiary support for Johnson’s
petition was Keith’s affidavit. Missing from Keith’s affidavit is any information
about when and how he first notified Johnson of his misgivings about his
[SEGMENT 24]
SUPREME COURT OF OHIO
identification of Johnson. The affidavit sheds no light on whether Keith contacted
Johnson or vice versa or when such contact occurred.
{¶ 29} In his petition, Johnson stated in conclusory fashion that the
information in Keith’s affidavit “was not available to [him] until this time” and
“was not discoverable by him until Keith voluntarily presented it.” But Keith’s
affidavit does not state, or even imply, this. On the contrary, Keith claims in his
affidavit that he had “spent the past seven years thinking about [his] testimony” and
that he had daily “felt an incredible weight on [his] shoulders” because he believed
he did not identify the right person. In fact, Keith’s affidavit provides no
information about whether Johnson had been prevented, unavoidably or otherwise,
from timely discovering Keith’s uncertainties about his identification of Johnson.
{¶ 30} Because Johnson has not shown that he was unavoidably prevented
from discovering Keith’s recantation within the statutory deadline, the trial court
lacked jurisdiction to consider his petition.4
. Johnson has not shown constitutional error
{¶ 31} Johnson’s petition fails for a second reason. In addition to satisfying
R.C. 2953.23(A)(1)(a), Johnson needed to show by clear and convincing evidence
that “constitutional error at trial” was the “but for” cause of his convictions, R.C.
2953.23(A)(1)(b). He did not.
{¶ 32} Here, Johnson claims that he satisfied this requirement by showing
three types of constitutional violations: perjured testimony, police coercion, and a
violation under [CITATION]. Only one of
4. It is questionable whether Johnson would be entitled to move forward with his petition even if it
were timely and not successive such that R.C. 2953.23’s jurisdictional bar were not an issue. He
petitioned under R.C. 2953.21(A)(1)(a)(i), which allows “[a]ny person who has been convicted of
a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or
infringement of the person’s rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States” to file a petition. As we discuss below,
Johnson did not sufficiently claim in his petition that the state had denied or infringed on any of his
constitutional rights.
January Term, 2024
these theories—perjury—was arguably raised in the trial court: Johnson argued in
his petition that he was denied his rights to due process and a fair trial because Keith
allegedly committed perjury. Coercion was not mentioned in Johnson’s petition.5
Neither was Brady. So Johnson has forfeited those arguments. See [CITATION].
{¶ 33} Once Johnson’s two forfeited arguments—police coercion and
Brady violation—are disregarded, we are left with Keith’s purported perjury as the
sole alleged constitutional error. But perjury is not constitutional error. Both this
court and the United States Court of Appeals for the Sixth Circuit have determined
that the state’s “ ‘knowing use of false or perjured testimony’ ” may constitute a
denial of due process. (Emphasis added.) [CITATION], quoting [CITATION]. The United States Supreme Court has come to the
same conclusion. See [CITATION]. Unwitting use of perjured testimony is a different
story.
{¶ 34} Neither this court nor the United States Supreme Court has held that
perjured testimony offered without the state’s knowledge is a deprivation of due
5. Johnson suggested in his petition that the police pressured Keith. But pressure is not inherently
coercive. See [CITATION] (“pressure merely to testify does not indicate
pressure to falsify”). Not only did Johnson fail to assert that Keith had been coerced, he also failed
to allege any facts implying coercion.
6. The dissenting opinion takes the position that these arguments were not forfeited. The case it
cites in support of that position—[CITATION]—is inapposite. In that case, the question was whether Bunch had “provided sufficient operative
facts to warrant an evidentiary hearing regarding his claim that he was prejudiced as a result of
counsel’s deficient performance,” id. at ¶ 50, not whether he had forfeited the claim. Bunch had
clearly raised in his postconviction petition the issue of his counsel’s ineffectiveness. See id. at ¶
14.
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process. The late Justice Scalia once observed that “the Ninth Circuit * * *
stretched the Constitution” when it held that “the use of * * * false testimony
violated the Fourteenth Amendment’s Due Process Clause, whether or not the
prosecution knew of its falsity. We have never held that, and are unlikely ever to
do so.” (Citation omitted.) [CITATION] (Scalia, J., dissenting from the denial of certiorari).
Likewise, we decline to do so today.
III. CONCLUSION
{¶ 35} The trial court could have no jurisdiction to entertain Johnson’s
untimely, successive petition for postconviction relief unless Johnson established
two things: (1) that he was unavoidably prevented from timely discovering that
Keith had doubts about his trial testimony and (2) that he would not have been
convicted but for constitutional error at trial. See R.C. 2953.23(A)(1). He
established neither. Nothing in the record details Johnson’s efforts, if there were
any, to timely obtain an affidavit from Keith, and he has provided no explanation
why such efforts would have been unavailing. And a conviction based on false
testimony is not a constitutional violation unless the state had knowledge of the
testimony’s falsity. We therefore affirm the judgment of the Eighth District Court
of Appeals.
Judgment affirmed.
KENNEDY, C.J., and FISCHER and DEWINE, JJ., concur.
DONNELLY, J., dissents, with an opinion joined by STEWART and BRUNNER,
JJ.
_________________
DONNELLY, J., dissenting.
{¶ 36} Because appellant, Eric Johnson, articulated sufficient operative
facts to warrant a hearing on his November 2020 petition for postconviction relief,
I dissent.
January Term, 2024
I. BACKGROUND
{¶ 37} In February 2013, a jury determined that Johnson was the person
who robbed and repeatedly shot James Keith on August 26, 2012. According to
the Eighth District Court of Appeals’ description of the evidence submitted at
Johnson’s trial,[CITATION] the identification of Johnson as the attacker hinged on Keith’s
eyewitness-identification testimony; no physical evidence linked Johnson to the
attack, and the remaining witnesses at trial were first responders and the police
detectives who became involved during the aftermath of the attack. See [CITATION]. Johnson has
maintained that he is innocent and that Keith incorrectly identified him as the
attacker.
{¶ 38} In December 2013, Johnson filed his first petition for postconviction
relief in this case. See [CITATION]. According to the Eighth District, Johnson asserted in that petition
that his trial counsel had been ineffective for failing to investigate an alibi witness
and for failing to adequately communicate a midtrial plea offer to Johnson. Id.
Johnson supported that petition with an affidavit from his trial counsel. Id. In
January 2014, the trial court denied the petition without a hearing. Id. at ¶ 1, 6. In
February 2014, Johnson filed a supplemental petition. Id. at ¶ 6. According to
Johnson’s recitation of the facts in his merit brief here, the supplemental petition
included an affidavit from Johnson’s codefendant, John Alexander, that supported
Johnson’s claim of innocence. The trial court dismissed the supplemental petition.
Id. The Eighth District affirmed. Id. at ¶ 26.
7. For reasons that are unclear, the full record of Johnson’s trial-court proceedings was not
transmitted on appeal. The portion of the trial-court record that was transmitted includes trial-court
docket Nos. 69 through 82, covering docket items from January 22, 2018, through March 8, 2021,
but it does not include any materials concerning Johnson’s trial or his first petition for postconviction
relief. Accordingly, and unfortunately, my understanding of the case is constrained to the
representations of the parties and the court of appeals.
SUPREME COURT OF OHIO
{¶ 39} The postconviction petition at issue here was filed in November
2020 and included an August 2020 affidavit from Keith, in which he stated:
. I am the victim in CR567736 State of Ohio v. Eric Johnson.
3. As a result of this incident I was shot nine times, spent seven
months in the hospital, was in a coma for a month, and then had to
learn to walk again.
4. My only recollection of my assailant is that he was an African
American man with gold teeth. I don’t have much of a memory of
the night of the incident after being placed in the ambulance.
5. I testified at trial that Eric Johnson was the person who robbed
and assaulted me.
6. However, I felt pressured by [an investigating detective] to testify
against Mr. Johnson even though I wasn’t sure he was the person
who committed these crimes against me.
7. I have spent the past seven years thinking about this case and my
testimony. On a daily basis I have felt an incredible weight on my
shoulders because I believe I have identified the wrong person as
having committed the crimes against me.
[SEGMENT 25]
Johnson also asserted in the 2020 petition that the foregoing recantation evidence
was unavailable to him before Keith recently came forward and offered the
recantation. The trial court summarily denied the petition without a hearing.
II. ANALYSIS
{¶ 40} The November 2020 petition for postconviction relief was untimely
and successive under the applicable versions of R.C. 2953.21 and 2953.23. To
ultimately prevail on his petition, Johnson would need to provide clear and
convincing evidence that a constitutional error occurred at his 2013 trial and that
January Term, 2024
but for that error, no reasonable fact-finder would have found him guilty. See
R.C. 2953.23(A)(1)(b). Johnson would also need to establish that he was
“unavoidably prevented,” R.C. 2953.23(A)(1)(a), from discovering the evidence
supporting his claim prior to December 2, 2013, which was 180 days after the
transcript of his trial was filed in the court of appeals in his direct appeal of his
convictions. See id.; former R.C. 2953.21(A)(2), 2010 Sub.S.B. No. 77. But we
are not concerned at this point with whether Johnson will ultimately prevail on his
petition; we are concerned only with whether the trial court should have held a
hearing on the petition. To merit a hearing, Johnson simply needed to produce
evidence establishing a prima facie claim that he was unavoidably prevented from
timely discovering the evidence supporting his petition and that the new evidence
presents a cognizable claim of constitutional error. See [CITATION]. Viewing Johnson’s petition and
supporting evidence under the facts and circumstances of this case, I believe a
hearing on the petition is merited.
A. “Unavoidably Prevented”
{¶ 41} The majority finds that Johnson provided no proof that he was
unavoidably prevented from discovering Keith’s recantation before the statutory
postconviction-petition deadline apart from the fact that Keith’s recantation
affidavit is dated after the deadline. The majority concludes that the date of a
recantation affidavit is not, by itself, prima facie evidence satisfying the
“unavoidably prevented from discovery of the facts” requirement under
R.C. 2953.23(A)(1)(a). I might agree with the majority’s conclusion under other
circumstances, such as those in [CITATION], one of the cases relied on by the majority. But I cannot agree with
the majority’s findings or conclusions under the circumstances of this case.
SUPREME COURT OF OHIO
{¶ 42} In Bennett, which involved an untimely motion for a new trial, the
recanting witness was the defendant’s brother, id. at ¶ 4. More than ten years before
the new-trial matter was filed, the defendant’s brother testified at the defendant’s
trial that the defendant had made an admission implying that he had caused the
victim’s death, contradicting the defendant’s testimony that the death had been
accidental, [CITATION]. The defendant and his brother had been in phone contact while the defendant
was in jail. [CITATION]. Given that specific context, the
defendant understandably could not establish a prima facie case under Crim.R.
33(B) (and likewise could not have established a prima facie case under
R.C. 2953.23(A)(1)(a)) by baldly claiming that he had been unavoidably prevented
from discovering his brother’s recantation.
{¶ 43} By contrast, the recanting witness in this case is the victim himself—
Keith. The parties state in their briefs that Keith testified at Johnson’s trial that he
had seen Johnson around town before the attack and had known him only as “E.”
Thus, it appears that Johnson and Keith had not been well acquainted. Under the
circumstances of this case, which include a victim who had suffered a brutally
violent attack, the victim’s recantation of identification testimony that had
otherwise ensured Johnson’s imprisonment for the attack, and the fact that Johnson
and the victim had been essentially strangers to each other, no more evidence is
necessary to establish a prima facie claim that Johnson was unavoidably prevented
from discovering Keith’s recantation sooner.
{¶ 44} The majority holds that more evidence was necessary to sustain
Johnson’s claim that he was unavoidably prevented from discovering Keith’s
recantation sooner, but it articulates no standard in that regard. What more must be
shown? Must the defendant spell out in an affidavit that he had not been in close
contact with the recanting victim and that he adhered to the truth that it is a terrible
idea to go around harassing the victim after trial? What more do we need besides
January Term, 2024
Johnson’s claim that Keith only “recently” decided to “come forward recanting his
identification” testimony and Keith’s statement that he came forward to recant after
spending years thinking about the case and feeling “an incredible weight on [his]
shoulders” about his testimony? If a person is convicted of a crime based on
eyewitness-identification testimony and that person is actually innocent, the person
already knows that one of two things happened: (1) either the witness lied or (2)
the witness was mistaken. When the crucible of cross-examination and the
penalties for perjury were not enough to convince a witness to testify truthfully and
accurately at trial, it is unreasonable to expect the defendant to extract a different
result from the witness after trial.
{¶ 45} Because the circumstances of Keith’s recantation relevant to
R.C. 2953.23(A)(1)(a) were already obvious, an affidavit articulating such obvious
facts and circumstances would be superfluous, and requiring more of defendants
like Johnson could be dangerous. Doing so could be dangerous to the victim’s
safety and peace of mind. It could be dangerous to the defendant, who could face
accusations of retaliation or intimidation of a witness. And it could be dangerous
to the defendant’s claim of innocence, given that a badgered recanting witness
would be seen as far less credible than a witness who recanted on his or her own
accord.
{¶ 46} Accordingly, I would hold that Johnson’s November 2020 petition
established a prima facie claim that he was unavoidably prevented from timely
discovering Keith’s recantation sooner and that the trial court erred by not holding
a hearing on the petition.
B. “Constitutional Error”
{¶ 47} Johnson argues that he adequately raised a cognizable claim of
constitutional error through Keith’s affidavit, which he says establishes that Keith
committed perjury at his trial and that the perjured testimony was a result of police
coercion and pressure to misidentify Johnson as the attacker, and he argues that the
SUPREME COURT OF OHIO
state’s failure to disclose that coercion violated the Supreme Court of the United
States’s holding in [CITATION]. The majority rejects Johnson’s arguments primarily by finding that
Johnson failed to raise any argument regarding police coercion or Brady in his
petition in the trial court. While I recognize that the legal arguments in Johnson’s
petition left a lot to be desired, I disagree that Johnson’s claims were entirely
forfeited.
{¶ 48} As long as Johnson’s petition alleged sufficient operative facts that,
if true, establish that a constitutional violation at his trial caused his convictions, he
is entitled to a hearing on the petition. See [CITATION]. I believe that sufficient operative facts
were presented through Keith’s averment that “[he] testified at trial that Eric
Johnson was the person who robbed and assaulted [him]. * * * However, [he] felt
pressured by [an investigating detective] to testify against Mr. Johnson even though
[he] wasn’t sure [Johnson] was the person who committed these crimes against
[him].”
{¶ 49} Keith did not merely say that he was pressured to testify in general.
He said that he was pressured to testify that Johnson was the person who had
attacked him, “even though” he had been unsure about the identity of his attacker.
The most reasonable reading of this averment is that the detective knew that Keith
was unsure of his attacker’s identity but pressured Keith to provide identification
testimony anyway. Regardless of whether or not Keith meant to indicate that the
state had instructed him to commit perjury, he indicated at the very least that he had
expressed uncertainty to the police about the identity of his attacker. Evidence of
such expressions to the police would have been favorable and material to Johnson’s
defense, given that Johnson’s convictions hinged on Keith’s identification
testimony, and the state’s failure to disclose such favorable, material evidence to
Johnson would certainly violate Brady. Regardless of whether Johnson’s counsel
January Term, 2024
specifically mentioned Brady in Johnson’s petition, the petition presented sufficient
operative facts to merit a hearing.
III. CONCLUSION
{¶ 50} I have emphasized that “[w]hen postconviction petitioners seeking
new trials provide evidence outside the trial-court record that potentially
undermines the theory of guilt that was used to convict them, courts should hold
hearings on the petitions as a regular practice.” [CITATION] at ¶ 43 (Donnelly, J., concurring); see also [CITATION] at ¶ 51; [CITATION] at ¶ 72
(Donnelly, J., dissenting); [CITATION] at ¶ 62 (Donnelly, J., dissenting).
{¶ 51} Johnson’s November 2020 petition for postconviction relief
articulates operative facts showing that the eyewitness-identification evidence that
was crucial to the determination of Johnson’s guilt at trial may have been false. I
personally think that this conclusion alone merits closer review of Johnson’s
petition, given that mistaken eyewitness identifications are thought to be
“ ‘responsible for more wrongful convictions than all other causes combined,’ ”
[CITATION], quoting A. Daniel Yarmey, Expert Testimony: Does Eyewitness Memory Research Have Probative
Value for the Courts?, 42 Canadian Psychol. 92, 93 (May 2001). But regardless,
Johnson’s petition also provided evidence establishing a prima facie claim that he
was unavoidably prevented from discovering Keith’s recantation prior to R.C.
2953.21’s deadline, and the facts established in the recantation affidavit present a
cognizable claim that Johnson’s convictions were predicated on the state’s
violations of his constitutional rights.
{¶ 52} I would reverse the judgment of the Eighth District Court of Appeals
and remand the cause to the trial court with an order for it to proceed to an
[SEGMENT 26]
SUPREME COURT OF OHIO
evidentiary hearing on Johnson’s November 2020 petition for postconviction relief.
Accordingly, I dissent.
STEWART and BRUNNER, JJ., concur in the foregoing opinion.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Gregory J. Ochocki and Tasha L. Forchione, Assistant Prosecuting Attorneys, for
appellee.
Joseph V. Pagano, for appellant.
Dave Yost, Attorney General, Michael J. Hendershot, Chief Deputy
Solicitor General, and Samuel C. Peterson and Jana M. Bosch, Deputy Solicitors
General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.
Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin
and Erika B. Cunliffe, Assistant Public Defenders, urging reversal for amicus curiae
Cuyahoga County Public Defender.
_________________
[Cite as [CITATION].]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff- Appellee, :
No. 112160
v. :
DUANE GIBSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 28, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-11-550542-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Kimberly Kendall Corral and Gabrielle M. Ploplis, for
appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Duane Gibson was convicted of felony murder in
2012. He and three codefendants were involved in a kidnapping and ransom plot. The plot turned deadly when the police shot to death a fourth accomplice while
rescuing the kidnapped victim. All three codefendants testified that Gibson planned
the kidnapping and solicited their help. Gibson was convicted of felony murder and
other offenses following a jury trial and received a prison term of 38 years to life.
Ten years later, Gibson filed the instant motion for leave to file a motion
for new trial. He submitted an unsigned affidavit from an inmate, Cordell Smith,
who was unrelated to the underlying case but alleged that when he and Umar Clark,
one of Gibson’s codefendants, were incarcerated together, Clark told him that
“everything that came out of his mouth ‘was shit’” and that he would “tell the truth”
if Gibson paid him $10,000. Gibson also submitted an undated document that
appears to be a part of a letter from someone who signed the writing as “Mr. Clark.”
After a careful review of the record and applicable law, we conclude the trial court
did not abuse its discretion in denying Gibson’s motion without a hearing.
Accordingly, we affirm the trial court’s decision.
Trial Testimony
The facts of this case are described in this court’s decision in Gibson’s
direct appeal, [CITATION]. Lloyd Davis was kidnapped by three men at gunpoint. He recognized one of them
as Gibson, with whom he shared family ties. The men bound him with twine and
duct tape, beat him, burned him with cigarettes, and robbed him. They drove him
in his own truck to a house owned by Gibson. Davis was held inside the truck,
parked in the garage of the house, and guarded by Clark and Leon James, who was The provided text does not contain any court ruling citations. Therefore, no replacements are necessary, and the text remains unchanged. money and Gibson asked to drive Brunson’s vehicle; Hillsman made the ransom
calls and then picked up the bag.
Gibson’s Motion for Leave to File a Motion for New Trial
The jury rendered the guilty verdict in June 2012. Almost ten years
later, on May 24, 2022, Gibson filed the instant motion for leave to file a motion for
a new trial. He claims there is newly discovered evidence entitling him to a new trial
and he was unavoidably prevented from discovering the evidence. The alleged newly
discovered evidence is in the form of two documents attached to his motion.
The first document is an affidavit of Smith. Smith does not have any
firsthand knowledge of the criminal events but avers that while they were
incarcerated together in 2011, Clark told him that he gave false information at the
trial. The affidavit was dated April 2, 2021. However, it was not signed by Smith.
The affidavit states:
I know Umar Clark from growing up in the same neighborhood
and we were locked up tother in Cuyahoga County jail in 2011 when
we were fighting cases at the same time.
Umar Clark had talked to me about his testimony in Duane
Gibson’s trial at that time.
In summary, he told me that everything that came out of his
mouth “was shit.”
I am hereby affirming that Umar Clark told me that if Duane
Gibson paid him $10,000, he would take back his statement and tell
the truth of what really happened.
Umar Clark told me that he gave false information because he
felt it was Duane Gibson’s fault that Leon died and that is why he lied
on the stand. I testify that on many occasions Umar Clark stated that if Duane
does not pay the $10,000, that he was not going to take back his
testimony and tell the truth.
He continuously repeated that he would tell the truth for * * *
$10,000 throughout the years; including when we were incarcerated
together in Trumbull Correctional and Mansfield Correctional
Institution.
The second document submitted by Gibson in support of his motion
is an undated partial letter signed by “Mr. Clark.” It states, in its entirety:
F***K who you show or give them papers to. I don’t regret shit
I do you writing me telling me what I need to do. I don’t take orders
money move me. You keep talking bout this affidavit shit. I didn’t
heard you say no numbers yet. Let me know how much yo freedom
worth to you. Or you can stay down. It’s all on you. Get at me.
P.S. You doing life. Damn that’s f***ed up! If they only know
you ain’t make me do shit or you ain’t give me that gun.
In Gibson’s motion, he claims he could not have timely discovered the
new evidence because he only discovered Smith “through the work of a private
investigator in 2021.” He alleges that his counsel only began representing him at
this late postconviction stage and counsel’s work led to the discovery of Smith.
Gibson, however, submitted no affidavit from the alleged investigator or his counsel,
or other documentary evidence, in support of this claim.
As to the letter, Gibson claims he “had no control over when Clark
would write him a letter confessing he lied in his testimony against him at trial” and
that “[t]here was no possibility that [he] could have obtained this evidence until it
was unexpectedly sent to him by Clark.” Again, there is also no affidavit or other documentary evidence submitted by Gibson regarding the circumstances of how or
when Gibson came to possess the letter.
The state opposes the motion, noting the irregularities of the
documents and calling into question their authenticity. The state also argues Gibson
failed to demonstrate by clear and convincing evidence that he was unavoidably
prevented from timely discovering the new evidence and a hearing on the motion
was not warranted.
The trial court denied Gibson’s motion. The judgment entry does not
include findings of fact and conclusions of law, stating only that defendant has failed
to satisfy his burden under Crim.R. 33(B).1
On appeal, Gibson raises five assignments of error for our review:
I. The trial court abused its discretion in ruling that Mr. Gibson
did not meet the requisite burden under Crim.R. 33(B).
A. Gibson was unavoidably prevented from discovering the
information contained in Cordell Smith’s affidavit within
days after the verdict.
B. Gibson was unavoidably prevented from discovering the
information contained in Umar Clark’s handwritten letter.
II. The trial court abused its discretion for failing to, at a
minimum, hold an evidentiary hearing as the evidence
1 We note that the Supreme Court of Ohio recently released [CITATION], Slip Opinion
No. 2023-Ohio-3448, which involved a motion for leave to file a motion for a new trial.
[CITATION] is a split decision without a majority. However, both the concurrence and the
dissent agree that, when denying a motion for leave to file a new-trial motion, trial courts
should, as a matter of best practice, make findings of fact and conclusions of law because
those determinations by the trial court and its reasoning are essential for the appellate
courts’ review of an appeal. Id. at ¶ 26 and 36. supporting Mr. Gibson’s new trial motion warranted
consideration in open court.
[SEGMENT 27]
A. The exhibits contained in state’s opposition considered with
the exhibits supporting Mr. Gibson’s motion demonstrate
why court intervention is necessary.
III. The trial court abused its discretion denying appellant’s motion
for leave to file a motion for new trial without having reviewed
the record.
IV. Hearsay and opinion statements independently filed by a
witness’s mother are not properly before the court.
V. The trial court erred in refusing to order the complete
handwriting analysis record while the trial court retained
jurisdiction.
As the issues raised in the first, second, third assignments are related, we discuss
them jointly.
Law and Standard of Review Regarding Motion for Leave to File a
Motion for New Trial
R.C. 2945.79 allows a defendant to file a motion for new trial based
on a claim that his substantial rights are materially affected by certain
circumstances. One such circumstance is when “new evidence is discovered
material to the defendant, which he could not with reasonable diligence have
discovered and produced at the trial.” R.C. 2945.79(F).
Crim.R. 33 provides the procedure for the motion for a new trial. It
states, in pertinent part:
(A) Grounds. A new trial may be granted on motion of the
defendant for any of the following causes affecting materially
the defendant’s substantial rights: ***
(6) When new evidence material to the defense is discovered
which the defendant could not with reasonable diligence have
discovered and produced at the trial. * * *
(B) Motion for new trial; form, time. Application for a new trial
shall be made by motion which, except for the cause of newly
discovered evidence, shall be filed within fourteen days after the
verdict was rendered, or the decision of the court where a trial
by jury has been waived, unless it is made to appear by clear
and convincing proof that the defendant was unavoidably
prevented from filing his motion for a new trial, in which case
the motion shall be filed within seven days from the order of the
court finding that the defendant was unavoidably prevented
from filing such motion within the time provided herein.
Motions for new trial on account of newly discovered evidence
shall be filed within one hundred twenty days after the day upon
which the verdict was rendered, or the decision of the court
where trial by jury has been waived. If it is made to appear by
clear and convincing proof that the defendant was
unavoidably prevented from the discovery of the evidence
upon which he must rely, such motion shall be filed within
seven days from an order of the court finding that he was
unavoidably prevented from discovering the evidence within
the one hundred twenty day period.
(Emphasis added.)
Under the rule, a new trial may be granted when the defendant’s
substantial rights are materially affected by the discovery of new evidence “material
to the defense.” Crim.R. 33(A)(6). Furthermore, when a motion for a new trial is
made on grounds of newly discovered evidence, the motion must be filed within 120
days after a verdict. Crim.R. 33(B). If a defendant files a motion for a new trial after
the expiration of that time, the defendant must first seek leave of the trial court to
file a delayed motion for a new trial. As the Second District explained in [CITATION] McConnell, [CITATION], “[a]llowing a
defendant to drag the process out while the evidence and the recollections of
witnesses become increasingly stale defies the very purpose of the criminal rules.”
To obtain leave to file a delayed new-trial motion, the defendant must
demonstrate “by clear and convincing proof that the defendant was unavoidably
prevented from filing his motion for a new trial[.]” Crim.R. 33(B). “[A] party is
unavoidably prevented from filing a motion for a new trial if the party had no
knowledge of the existence of the ground supporting the motion and could not have
learned of that existence within the time prescribed for filing the motion in the
exercise of reasonable diligence.” [CITATION]
Furthermore, a defendant is only entitled to a hearing on a motion for
leave to file a delayed motion for new trial if he submits documents that “on their
face support the claim of being unavoidably prevented from timely discovering the
new evidence.” [CITATION] citing [CITATION] and [CITATION] (leave may be summarily denied where neither
the motion nor its supporting affidavits embody prima facie evidence of unavoidable
delay). See also [CITATION]
====== Instruction (Completed) ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'state-v-miller', which should be replaced with `[CITATION]`. We review a trial court’s decision denying a motion for leave to file a
delayed motion for a new trial for an abuse of discretion. See, e.g., [CITATION]. The trial
court’s decision whether to hold an evidentiary hearing on such a motion is also
reviewed for an abuse of discretion. [CITATION].
Trial Court’s Denial Without a Hearing Was Not an Abuse of Discretion
To be granted leave to file a motion for new trial, Gibson must present
“new evidence material to the defense” that affects his substantial rights, Crim.R.
33(A)(6), and demonstrates by clear and convincing evidence that he was
unavoidably prevented from its discovery. Crim.R. 33(B). Clear and convincing
evidence is that which will produce in the trier of fact “a firm belief or conviction as
to the facts sought to be established.” [CITATION]. While it is a greater standard of proof
than a preponderance of the evidence, clear and convincing evidence requires less
than proof beyond a reasonable doubt. Id.
Regarding the alleged new evidence in the form of an affidavit from
Smith, Smith did not sign the purported affidavit. The absence of the affiant’s
signature calls into question the authenticity of the document.2 See, e.g., [CITATION].
2 “‘The general rule is that an affidavit must appear on its face to have been taken before
the proper officer, and in compliance with all legal requisitions.’” [CITATION] (the affiant did
not sign the affidavit attached to the motion for a new trial and therefore it lacked
evidentiary quality).
More importantly, however, even if Smith did sign the affidavit, the
alleged new evidence is not an affidavit from a recanting witness or an individual
who has any firsthand knowledge of the criminal events. The affidavit, even if
genuine, consists of hearsay statements from an affiant who alleged that he was told
by a witness that his testimony at trial was “shit” and would take back his testimony
if paid. In addition to the hearsay nature of the affidavit, the affiant’s reference to
his conversations with Clark about his trial testimony while both were held in the
Cuyahoga County Jail in 2011 is incongruous, given that Gibson’s trial took place in
June 2012. For these reasons, the affidavit lacks evidentiary value to constitute “new
evidence material to the defense” and its discovery would not “affect[] materially the
defendant’s substantial rights” for purposes of Crim.R. 33(A)(6). The trial court did
not abuse its discretion in denying Gibson’s motion for leave to file a new-trial
motion.
Similarly, the letter from “Mr. Clark,” if authentic, also lacks sufficient
evidentiary value to constitute material new evidence for purposes of
[CITATION]. The lack of signature indicates the
affidavit on its face was not taken under oath before the notary. [CITATION] (when an affidavit was not signed, it was
not made by the affiant under oath). [CITATION]. At the trial, two other codefendant testified to Gibson’s role in the
kidnapping and ransom scheme. In the letter, Clark appears to state that he would
testify differently if paid by Gibson, but did not specify what the testimony would be.
Even if the purported affidavit and the letter would be material new
evidence pursuant to [CITATION], Gibson must demonstrate by clear and convincing
proof that he was unavoidably prevented from filing his motion for a new trial within
120 days. [CITATION]. And, to be entitled to a hearing on the motion for leave, he
must submit documents that, on their face, support his claim that he was
unavoidably prevented from timely discovering the evidence in question.
Gibson alleges in his motion that he only discovered Smith’s
conversations with Clark “through the work of a private investigator in 2021” and
that his new counsel only started to represent him at this late postconviction stage.
He, however, submitted no affidavit from the alleged investigator, his counsel, or
Smith, or any documentary evidence, to explain the circumstances and timing of the
discovery of Smith and Clark’s conversations. Regarding the letter, Gibson claims
that “[t]here was no possibility that Gibson could have obtained this evidence until
it was unexpectedly sent to him by Clark.” The letter, however, was not dated and
there is nothing in the record to indicate when the letter was written.
Accordingly, the documents Gibson submitted in support of his
[SEGMENT 28]
motion for leave to file a delayed new-trial motion on their face do not demonstrate
he was avoidably prevented from a timely discovery. The trial court did not abuse
====== its discretion in denying Gibson’s motion without a hearing. The first, second, and
third assignments of error are without merit.
Other Documents
The fourth and fifth assignments of error relate to the letter
purportedly written by Clark and they concern two documents in the record. The
first is a letter Clark’s mother wrote to the court claiming her son did not write the
letter attributed to him. The second is a handwriting report obtained by the
prosecutor after the trial court denied Gibson’s motion. We address these two
assignments of error together.
Regarding the first document, the court’s docket reflects that, after
Gibson filed the motion claiming Clark falsely testified at trial, Anitra Brasfield,
Clark’s mother, filed a letter with the court. She stated that the letter allegedly
written by her son was a forged document and that she spoke to her son after Gibson
filed the motion and her son denied ever writing a letter to Gibson while incarcerated
in the Cuyahoga County Jail. Also, her son told her that Smith had approached him
and told him that Gibson was going to forge Clark’s signature and pay Smith to write
a statement against Clark. Under the fourth assignment of error, Gibson argues
Clark’s mother has no independent knowledge of the facts contained in the letter
and the letter should be stricken from the record. The record reflects that Gibson
never moved the trial court to strike the document, however.
Regarding the handwriting report, the record reflects that six days
after the trial court denied Gibson’s motion on September 13, 2022, the prosecutor
====== End of Document ====== sent an email to Gibson’s counsel, advising counsel that a handwriting report, which
had just become available to the prosecutor, concludes “support for same source”
regarding “the letter that Clark claimed he did not write.” The handwriting report
was attached to the email. Upon receiving the email and report, Gibson’s counsel
filed a “Motion for Order to Produce Complete Testing” on October 4, 2022, before
filing the instant notice of appeal. In the motion, Gibson asked the trial court to
order the state to file with the court the complete file regarding the handwriting test
and, additionally, the recorded jail call between Clark and his mother referenced in
Clark’s mother’s letter. The trial court did not rule on the motion. Under the fifth
assignment, Gibson argues the trial court erred in failing to grant the motion.
The issue presented in this appeal is whether Gibson was unavoidably
prevented from discovering new evidence material to his defense and entitled to
leave to file a motion for new trial. Those two documents are immaterial to the
instant appeal because our analysis and resolution of the issue does not depend on
whether the letter from Clark was forged. As we have explained in the foregoing,
The prosecutor’s email to the defense counsel states:
Please be advised the attached report was made available to myself today.
Umar Clark, Jr. did submit handwriting templars and compared to the letter
Clark claimed he did not write. The report indicates “Support for Same
Source” but is limited apparently due to the lack of original writings. The
report does not make a source identification. Although this report is being
disclosed to you, the State’s position regarding leave [to file a motion for a
new trial] remains unchanged. even if the letter is authentic, the trial court did not abuse its discretion in denying
the motion without a hearing. The fourth and fifth assignments of error are moot
due to our disposition of the first three assignments of error.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________________
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, A.J., and
SEAN C. GALLAGHER, J., CONCUR
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Miller, Slip Opinion No. 2023-Ohio-3448.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2023-OHIO-3448
THE STATE OF OHIO, APPELLEE, v. MILLER, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Miller, Slip Opinion No. 2023-Ohio-3448.]
Court of appeals’ judgment affirmed in absence of four votes to reverse.
(No. 2022-0321—Submitted March 1, 2023—Decided September 28, 2023.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 110571, 2022-Ohio-378.
__________________
{¶ 1} In the absence of four votes to reverse the judgment of the Eighth
District Court of Appeals, that judgment is affirmed.
Judgment affirmed.
KENNEDY, C.J., concurs in the judgment, with an opinion joined by DEWINE
and DETERS, JJ.
FISCHER, J., would dismiss the cause as having been improvidently
accepted.
SUPREME COURT OF OHIO
DONNELLY, J., dissents, with an opinion joined by STEWART and BRUNNER,
JJ.
_________________
KENNEDY, C.J., concurring in the judgment.
{¶ 2} I agree that the judgment of the Eighth District Court of Appeals
should be affirmed. I write separately, however, to explain why. This discretionary
appeal asks this court to decide whether the trial court erred in denying appellant
Leelin Miller’s petition for postconviction relief and motion for leave to file a new-
trial motion without holding a hearing.
{¶ 3} Miller is serving a sentence of 49 years to life in prison for the
aggravated murder of Richard McCoy. Miller filed the petition for postconviction
relief and motion for leave to file a new-trial motion based on the unsworn
statement of state’s witness Mario Godfrey, in which Godfrey recanted the
eyewitness testimony he gave at Miller’s trial claiming that he saw Miller shoot
McCoy.
{¶ 4} A defendant who has been convicted of a criminal offense may file a
petition for postconviction relief based on a claim that there was a denial or
infringement of his or her rights that renders the judgment of conviction or sentence
void or voidable under the United States or Ohio Constitutions. R.C.
2953.21(A)(1)(a)(i). In support of that claim, a petitioner may file an affidavit and
other documentary evidence. R.C. 2953.21(A)(1)(b). As a threshold matter, prior
to granting a hearing on the petition, the trial court must determine whether there
are “substantive grounds for relief.” R.C. 2953.21(D). In making that
determination, the trial court must consider the petition, any affidavit or other
documentary evidence filed with the petition, and the trial record, including the
transcript of the proceedings. Id.
{¶ 5} A defendant may also challenge a judgment of conviction by moving
for a new trial based on a claim that the defendant’s substantial rights were
2
January Term, 2023
materially affected by any of the specific causes set forth in Crim.R. 33(A). When
a motion for a new trial is based on newly discovered evidence, the defendant must
produce “affidavits of the witnesses by whom such evidence is expected to be
given.” Crim.R. 33(A)(6).
{¶ 6} Based on the facts of this case, the trial court did not abuse its
discretion in denying Miller’s petition for postconviction relief and motion for leave
to file a new-trial motion without holding a hearing. When a defendant moves for
postconviction relief or leave to file a new-trial motion based on newly discovered
evidence but relies on only an unsworn statement in support of the motion, the trial
court does not err in summarily dismissing the cause. For these reasons, I concur
with this court’s judgment to affirm the judgment of the court of appeals, but I
would do so on different grounds than the court of appeals set forth in its opinion.
I. Facts and Procedural Background
{¶ 7} In 2013, McCoy was shot and killed. Soon after, Miller was charged
with McCoy’s murder. During Miller’s trial in the Cuyahoga County Court of
Common Pleas, the state called Godfrey as a witness. Godfrey testified that on the
day of McCoy’s murder, he witnessed Miller shoot McCoy.
{¶ 8} A jury found Miller guilty of aggravated murder for killing McCoy—
among several other offenses. As set forth above, the trial court sentenced Miller
to 49 years to life in prison. On appeal, the Eighth District affirmed Miller’s
convictions and sentences. State v. Miller, 8th Dist. Cuyahoga No. 100461, 2014-
Ohio-3907, ¶ 108.
{¶ 9} In 2020, Miller filed a petition for postconviction relief and a motion
for leave to file a new-trial motion. In support of his petition for postconviction
relief, Miller alleged that he was “unavoidably prevented” from discovering facts
that form the basis of the claims in his petition. As grounds for relief, he claimed
that the introduction of Godfrey’s allegedly perjured testimony violated his rights
under the Sixth, Eighth, and Fourteenth Amendments to the United States
3
SUPREME COURT OF OHIO
Constitution as well as his rights under Article I, Section 10 of the Ohio
Constitution. Further, Miller maintained that he is actually innocent, which he
claimed gives rise to another basis for relief under the Ohio Constitution.
{¶ 10} In his motion for leave to file a new-trial motion, Miller alleged that
Godfrey’s statement recanting his trial testimony amounts to newly discovered
evidence under Crim.R. 33(A)(6). As grounds for relief, Miller claimed that the
use of Godfrey’s perjured testimony violated his due-process rights under the
Fourteenth Amendment to the United States Constitution and Article I, Section 10
of the Ohio Constitution. He also raised an actual-innocence claim, asserting that
his convictions violate his rights under the United States and Ohio Constitutions.
{¶ 11} Attached to both Miller’s petition for postconviction relief and
motion for leave to file a new-trial motion was a handwritten statement
acknowledged and signed by Godfrey. In the statement, contrary to his trial
testimony, Godfrey stated that he never saw Miller shoot McCoy:
[M]e and [McCoy] got in the van and [were] about to leave. * * *
[Miller] and [another] person came out to the van * * *. * * *
[McCoy] told [Miller] to get in the van with us. [Miller] got in [and]
then we pulled off. [McCoy] and [Miller] started talking [a]bout the
argument that went on with [McCoy] and Ellorie. * * * I got
dropped off on 128th and Miles where I was staying at the time.
[Miller] and [McCoy] left me * * *. I woke up the next morning
with phone calls saying [McCoy] got killed that night. * * * I never
seen [Miller] shoot [McCoy]. I never seen [Miller] with a gun that
night. * * * I was pressured into testifying. The judge pulled me
into the back of the courtroom telling me what to say and what not
to say on the stand. * * * My lawyer, the police, and the streets all
was saying [Miller] shot and killed [McCoy]. I was pressured by
4
January Term, 2023
my attorney, the detectives, and the prosercutor [sic]. I feel deep
down I have to come forward and tell the truth. Everything I said
on this statement is true and I’ll testify to it if I have too [sic]. * * *
The third page of the statement bears a series of signatures. On the bottom right-
hand side is Godfrey’s signature just below his printed name. To the left of that is
the statement, “The foregoing instrument was acknowledged before me this 15th
day of July, 2019, by Mario Godfrey.” Just below that is the statement, “I’m giving
David Owens permission to turn this statement in,” followed by Godfrey’s
signature. Under that is the printed name of Ciara Borom, along with Borom’s
signature. At the top of page three is a notary stamp that includes the printed text:
“Ciara Borom, Notary Public – Ohio, My Commission Expires March 25, 2020.”
Just below the notary stamp is a small handwritten annotation that says, “see bottom
of doc.”
{¶ 12} Also attached to both Miller’s petition for postconviction relief and
his motion for leave to file a new-trial motion were “general affidavits” of Borom
and Miller’s son, Wesley Fitzgerald, and a letter from the Ohio Innocence Project.
{¶ 13} Without holding a hearing, the trial court summarily denied Miller’s
petition for postconviction relief and motion for leave to move for a new trial. The
trial court’s judgment was composed of just two sentences and contained no
explanation for the court’s decision. On appeal, the Eighth District affirmed. 2022-
Ohio-378, ¶ 28. The court of appeals held that the trial court did not abuse its
discretion in denying Miller’s petition for postconviction relief and in not holding
a hearing on the petition, because “Miller did not raise any recognized
constitutional claim or substantive ground for relief.” Id. at ¶ 26.
{¶ 14} The Eighth District also held that the trial court did not abuse its
discretion in denying Miller’s motion for leave to file a new-trial motion without
holding an evidentiary hearing, because (1) Miller had failed to demonstrate that he
5
SUPREME COURT OF OHIO
was unavoidably prevented from discovering Godfrey’s recantation of his trial
testimony, (2) Miller had failed to show that his motion for leave was filed within
a reasonable time after he discovered Godfrey’s statement, and (3) Godfrey’s
statement lacked credibility. Id. at ¶ 15-21.
{¶ 15} We accepted Miller’s appeal to review three propositions of law:
I. The Court of Appeals erred when it relied on an incorrect
rule of law that Miller’s Motion for Leave to File a New Trial
Motion must be filed within a reasonable time after discovering the
evidence that supports such motion.
II. Substantive and/or constitutional grounds for relief in a
post conviction petition under [R.C.] 2953.21 et seq. exist when the
only eyewitness recants his trial testimony and there is no physical
or other substantive evidence linking a defendant to the crime.
III. Mr. Miller is entitled to relief because he is actually
innocent and his convictions in light of the new evidence violate the
Fourteenth Amendment of the U.S. Constitution and Article I,
Sections 9 and 10 of the Ohio Constitution.
See 167 Ohio St.3d 1442, 2022-Ohio-2162, 189 N.E.3d 817.
{¶ 16} Because the disposition of propositions of law two and three would
resolve the case, it is unnecessary to address Miller’s first proposition of law.
II. Relevant Law
A. Standard of Review
{¶ 17} This court reviews both a trial court’s decision to grant or deny a
petition for postconviction relief and its ruling on a motion for leave to file a new-
trial motion for an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-
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Ohio-6679, 860 N.E.2d 77, ¶ 58; State v. McNeal, 169 Ohio St.3d 47, 2022-Ohio-
2703, 201 N.E.3d 861, ¶ 13.
B. Statutory and Rule Interpretation
{¶ 18} The issues in this case lead to a familiar place, construction of
statutes and rules. As this court explained long ago, “[t]he question is not what did
the general assembly intend to enact, but what is the meaning of that which it did
enact.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of
the syllabus. “When the statutory language is plain and unambiguous, and conveys
a clear and definite meaning, we must rely on what the General Assembly has said.”
Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784
N.E.2d 1172, ¶ 12. “An unambiguous statute is to be applied, not interpreted.”
Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the
syllabus. We apply the same general principles of statutory construction when
interpreting court rules, including the Rules of Criminal Procedure. State v. Bethel,
167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 54-55.
C. Petition for Postconviction Relief
{¶ 19} In Ohio, persons convicted of criminal offenses may petition a trial
court for postconviction relief if they fit into one of four categories. R.C.
2953.21(A)(1)(a)(i) through (iv). Relevant here is the first category, which
provides that a defendant convicted of a criminal offense may file a petition
claiming “that there was such a denial or infringement of the person’s rights as to
render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States.” R.C. 2953.21(A)(1)(a)(i). The trial court,
before granting a hearing on a petition filed under R.C. 2953.21(A)(1)(a)(i), is
required to “determine whether there are substantive grounds for relief.” R.C.
2953.21(D). In making its decision, the trial court must consider the petition,
“supporting affidavits,” and any documentary evidence, including the underlying
trial record and transcripts. Id. If a trial court dismisses a petition, the court is
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required to “make and file findings of fact and conclusions of law with respect to
such dismissal.” Id.
D. Motion for Leave to File a New-Trial Motion
{¶ 20} Similarly, Crim.R. 33, adopted as a rule of practice and procedure in
support of R.C. 2945.79, permits a defendant to file a motion for a new trial when
a defendant’s substantial rights have been materially affected by certain events.
Crim.R. 33(A); see also R.C. 2945.79(A). When a defendant alleges newly
discovered evidence as grounds for relief, “the defendant must produce * * *
affidavits of the witnesses by whom such evidence is expected to be given.”
Crim.R. 33(A)(6); R.C. 2945.79(F). If a defendant wishes to move for a new trial
based on newly discovered evidence and it has been more than 120 days since the
verdict was rendered, the defendant must first seek an order from the court allowing
the delayed filing. Crim.R. 33(B). A defendant can seek such an order by filing a
motion for leave to file a new-trial motion. See, e.g., Bethel, 167 Ohio St.3d 362,
2022-Ohio-783, 192 N.E.3d 470, at ¶ 53; State v. Farley, 10th Dist. Franklin No.
03AP-555, 2004-Ohio-1781, ¶ 10; State v. Roberts, 141 Ohio App.3d 578, 582, 752
N.E.2d 331 (6th Dist.2001). Even assuming that a defendant’s motion for leave
should have been granted, we will nonetheless uphold the denial of a motion for
leave if the defendant’s underlying new-trial motion would be without merit. See
Bethel at ¶ 59.
E. Affidavit Requirements
{¶ 21} In Ohio, an affidavit is a “written declaration [made] under oath.”
R.C. 2319.02. This court has long held that “an affidavit must appear on its face to
have been taken before the proper officer, and in compliance with all legal
requisitions.” Benedict v. Peters, 58 Ohio St. 527, 536 (1898). “A paper purporting
to be an affidavit, but not to have been sworn to before an officer, is not an
affidavit.” Id. at 536-537.
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January Term, 2023
{¶ 22} A notary has the power to administer oaths and therefore can assist
in executing affidavits. See R.C. 147.07; see also Citizens Natl. Bank in Zanesville
v. Denison, 165 Ohio St. 89, 95, 133 N.E.2d 329 (1956). A “jurat” is the notarial
act and certificate associated with executing affidavits. R.C. 147.011(C); See Stern
v. Bd. of Elections of Cuyahoga Cty., 14 Ohio St.2d 175, 181, 237 N.E.2d 313
(1968). Our caselaw has long held that a jurat proves the signer of the affidavit
swore his statement under oath and it “is prima facie evidence of the fact that the
affidavit was properly made before such notary.” Id. Since then, the General
Assembly has codified jurat requirements, maintaining that a jurat requires “an oath
or affirmation that the statement in the notarized document is true and correct.”
R.C. 147.011(C); see also R.C. 147.542(C).
{¶ 23} Another common notarial act is certifying “acknowledgments” of
signers. R.C. 147.07; see State ex rel. Evergreen Co. v. Bd. of Elections of Franklin
Cty., 48 Ohio St.2d 29, 31, 356 N.E.2d 716 (1976). When a notary takes an
acknowledgment, the notary is certifying that (1) “[t]he person acknowledging
appeared before him and acknowledged he executed the instrument,” and (2) “[t]he
person acknowledging was known to the person taking the acknowledgment.” R.C.
147.53(A) and (B). The “key difference” between the two actions is that “an
acknowledgment is not made under oath.” State ex rel. Maras v. LaRose, 168 Ohio
St.3d 430, 2022-Ohio-3295, 199 N.E.3d 532, ¶ 32 (DeWine, J., dissenting).
III. Analysis
{¶ 24} Miller’s second and third propositions of law raise substantive
arguments under the United States and Ohio Constitutions about why the appellate
court erred in denying his requested relief. But by focusing on those substantive
issues, Miller sidesteps a more fundamental question: whether there was sufficient
evidence before the trial court to grant a hearing on his petition for postconviction
relief and his motion for leave to file a new-trial motion.
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{¶ 25} Initially, it must be noted that the trial court did not comply with the
mandates of the postconviction-relief statute. R.C. 2953.21(D) provides that if a
trial court “dismisses the petition,” the court must “make and file findings of fact
and conclusions of law with respect to such dismissal.” This court has held that the
language of that provision is mandatory. State v. Lester, 41 Ohio St.2d 51, 322
N.E.2d 656 (1975), paragraph two of the syllabus. Therefore, the trial court’s two-
sentence entry denying the petition for postconviction relief was insufficient.
{¶ 26} And while neither R.C. 2945.79 nor Crim.R. 33 expressly requires
the trial court to provide findings of fact and conclusions of law when denying a
motion for leave to file a new-trial motion, as a matter of best practice, trial courts
should make findings of fact and conclusions of law because those determinations
are essential to prosecute an appeal. Findings of fact and conclusions of law
“apprise the petitioner of the grounds for the judgment of the trial court and * * *
enable the appellate courts to properly determine appeals in such a cause.” Jones
v. State, 8 Ohio St.2d 21, 22, 222 N.E.2d 313 (1966). Without findings of fact and
conclusions of law, a petitioner knows that the cause was dismissed and nothing
more.
{¶ 27} Moreover, the appellate court’s credibility determination of
Godfrey’s statement in the first instance was also in error. See State v. Blanton,
171 Ohio St.3d 19, 2022-Ohio-3985, 215 N.E.3d 467, ¶ 98.
{¶ 28} Nevertheless, despite the trial court’s lack of findings of fact and
conclusions of law and the appellate court’s improper determination of Godfrey’s
statement’s credibility, the Eighth District’s affirmance of the trial court’s decision
to summarily deny Miller’s petition for postconviction relief and motion for leave
to file a new-trial motion should be affirmed. Under Ohio law, the statement that
Godfrey gave was not an affidavit; it was simply an unsworn statement. See Tokles
& Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 630, 605 N.E.2d 936
(1992), fn. 3 (sua sponte finding that a statement did not qualify as an affidavit).
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January Term, 2023
Therefore, Miller failed to produce sufficient evidence to enable the trial court to
determine whether there were substantive grounds for relief to grant a hearing.
{¶ 29} Here, the language of the notary reads, “The foregoing was
acknowledged.” That language is insufficient to create “sworn testimony.” As this
court said in Benedict, “[a] paper purporting to be an affidavit, but not to have been
sworn to before an officer, is not an affidavit.” (Emphasis added.) 58 Ohio St. at
536-537.
{¶ 30} Without an affidavit in compliance with the requirements of R.C.
2953.21(D) or the presentation of new evidence in accord with Crim.R. 33(A)(6),
the trial court could not determine whether there were “substantive grounds for
relief” to support the petition for postconviction relief and the motion for leave to
file a new-trial motion. The additional documents attached to the unsworn
statement—two general affidavits from individuals without personal knowledge of
the underlying case and a letter from the Ohio Innocence Project—have no bearing
on the substantive grounds for relief. Because Godfrey’s statement is not an
affidavit and the additional attachments do not offer “substantive grounds” for
relief, the trial court did not abuse its discretion in dismissing the petition for
postconviction relief and the motion for leave to file a new-trial motion without a
hearing.
IV. Conclusion
{¶ 31} In Ohio, criminal defendants have several avenues for seeking relief
from a judgment of conviction. One avenue is by filing a petition for postconviction
relief pursuant to R.C. 2953.21. Another is by filing a motion for a new trial
pursuant to R.C. 2945.79 and Crim.R. 33.
{¶ 32} But before a trial court may grant a hearing on the matter, the trial
court must find that there are substantive grounds for relief, and that finding
requires sufficient evidence to support those grounds. Because an unsworn
statement is not an affidavit, the trial court did not abuse its discretion in denying
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Miller’s petition for postconviction relief and motion for leave to file a new-trial
motion without a hearing.
{¶ 33} For these reasons, I concur only in the court’s judgment and would
affirm the judgment of the Eighth District Court of Appeals, albeit on different
grounds than stated by the appellate court.
DEWINE and DETERS, JJ., concur in the foregoing opinion.
_________________
DONNELLY, J., dissenting.
{¶ 34} Our treatment of this appeal could have been incredibly
straightforward. When the trial court summarily denied appellant Leelin Miller’s
postconviction motion and petition, and when the appellate court affirmed the same,
neither one of those courts had the benefit of this court’s guidance that Crim.R.
33(B) has no “reasonable-time” requirement for filing new-trial motions based on
the discovery of new evidence and that summary denial on that basis is
inappropriate. State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d
470, ¶ 55; see also State v. McNeal, 169 Ohio St.3d 47, 2022-Ohio-2703, 201
N.E.3d 861, ¶ 17, citing Bethel at ¶ 53, 58. In light of the fact that we do not know
why the trial court denied Miller’s postconviction petition and motion for leave to
file a new-trial motion, all we would need to do here is summarily remand the cause
to the trial court for further consideration in light of Bethel. But for some reason,
four of the justices on this court cannot bear to do such a simple thing.
{¶ 35} I would gladly join a summary remand given that it would be far
more reasonable and far more useful than whatever it is we are doing with this
nonsensical entry. However, the ideal resolution of this appeal would be to reverse
the judgment of the Eighth District Court of Appeals and remand the cause to the
Cuyahoga County Court of Common Pleas with orders to proceed to an evidentiary
hearing on Miller’s postconviction petition and motion for leave to file a new-trial
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motion. I therefore dissent, and I also write separately to point out several problems
with the opinion concurring in judgment only.
I. Introduction
{¶ 36} To begin with, I agree with the portion of the opinion concurring in
judgment only identifying the errors in the trial and appellate courts’ decisions
regarding Miller’s petition for postconviction relief and motion for leave to file a
new-trial motion. See opinion concurring in judgment only, ¶ 25-27. I want to
make it clear that no justice on this court is voicing agreement with the trial court’s
decision not to provide any reasoning to support its denial of Miller’s motion and
petition or with the appellate court’s decision to make its own credibility
determinations regarding Miller’s supporting evidence, see 2022-Ohio-378,
¶ 17-20.
{¶ 37} However, I do not agree with the concurrence’s view that we should
affirm notwithstanding the lower courts’ errors. The concurrence reaches its
conclusion by sua sponte raising a technical evidentiary issue that appellee, the state
of Ohio, has forfeited. The concurrence goes on to advance broad, bright-line rules
about its sua sponte evidentiary issue that would have the potential to affect all
postconviction petitions and motions for new trials. And the rules that the
concurrence proposes would create new legal standards rather than apply the
standards actually articulated in R.C. 2953.21, R.C. 2945.79, and Crim.R. 33.
II. Background
{¶ 38} At Miller’s murder trial in July 2013, Mario Godfrey testified that
he saw Miller shoot Richard McCoy. Godfrey did not immediately report the
shooting, and he later provided a statement to the police after consulting with an
attorney. There were no other eyewitnesses to the shooting, and no physical
evidence linked Miller to the murder.
{¶ 39} In July 2019, Godfrey wrote a statement recanting his trial
testimony, and he contacted a notary public, Ciara Borom, to notarize his statement.
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SUPREME COURT OF OHIO
According to Miller, the Ohio Innocence Project (“OIP”) received Godfrey’s
statement, but after OIP did not act on the statement for many months, Miller
retained counsel to move forward with his postconviction efforts. Miller filed his
motion for leave to file a new-trial motion on November 30, 2020, and he filed his
postconviction petition on December 1, 2020. He attached Godfrey’s statement to
both filings. Miller alleged that he was unaware that Godfrey would recant his trial
testimony until after Godfrey wrote his 2019 statement.
{¶ 40} Godfrey’s 2019 statement indicates that following McCoy’s killing
he was starting to get implicated as the shooter, that after consulting with his
attorney he provided a written statement to the police per her instructions, and that
the prosecution threatened to charge Godfrey with McCoy’s murder if he refused
to testify consistently with the written statement he had provided to the police.
Godfrey’s 2019 statement explained:
I woke up the next morning with phone calls saying [McCoy] got
killed that night. Then the streets is saying I was in the van when he
got killed. The police/detectives came to my kids mom house and
my uncle house looking for me. I never seen Leelin Miller shoot
Richard McCoy. I never seen Leelin with a gun that night. All I
know is I had my lawyer Nancy Samerson call the detectives to see
why they were looking for me. She called me back saying they
know I was there and seen [Miller] shoot [McCoy] and we had to go
downtown and write a statement. I did what I was told to do. I told
the prosercutor I didn’t want to testify to that statement once trail
came. He said over the phone if I didn’t they were gone charge me
with [McCoy’s] murder. At that time I didn’t know what to do. I
was pressured into testifying.
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January Term, 2023
(Spelling, grammar, and punctuation sic.)
{¶ 41} Miller argued in his postconviction petition that a prosecutor’s
knowing use of perjured testimony to obtain a conviction violates a defendant’s
right to due process, and he cited various cases standing for the proposition that
such a knowing act by the state would violate Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92
S.Ct. 763, 31 L.Ed.2d 104 (1972). See, e.g., Kutzner v. Cockrell, 303 F.3d 333,
337 (5th Cir.2002) (explaining that although the defendant had failed to show that
the state knowingly presented perjured testimony, a supported claim would
establish a due-process violation as stated in Brady and Giglio); Blalock v. Wilson,
320 Fed.Appx. 396, 412-413 (6th Cir.2009) (same); People v. Brown, 169 Ill.2d
94, 103, 660 N.E.2d 964 (1995) (same); State v. Lotter, 278 Neb. 466, 476-477,
771 N.W.2d 551 (2009) (same). Miller further argued that due process is violated
irrespective of the prosecutor’s knowledge when a criminal conviction turns
entirely on perjured testimony and that the state has “no legitimate interest” in
maintaining a false conviction.
{¶ 42} The state filed briefs in opposition to Miller’s petition and motion
for leave, arguing that they should be denied without a hearing because Godfrey’s
2019 statement—which the state characterized as an affidavit—was not credible.
The state further argued that Miller was not unavoidably prevented from
discovering new evidence. Specifically, the state argued that Miller (or his
attorney) could have approached Godfrey to ask him to recant after the 2013 trial
and that there was no justification for the seven-year delay in Miller’s discovery of
the purported new evidence. The state did not attach any affidavits or other
evidence to its filings, and it did not object to or move to strike the attachments to
Miller’s postconviction petition and motion for leave. The trial court summarily
denied Miller’s postconviction petition and motion for leave without a hearing.
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{¶ 43} Miller appealed, and the Eighth District affirmed the trial court’s
judgment. Of note, the state did not raise any issues in its briefing to the Eighth
District regarding the form of the attachments to Miller’s filings, and it repeatedly
characterized Godfrey’s 2019 written statement as an “affidavit.”
{¶ 44} In affirming the trial court, the court of appeals held that Miller had
failed to justify the seven-year gap between his 2013 convictions and his 2020
postconviction filings. 2022-Ohio-378 at ¶ 13. It indicated that Miller could have
tried to solicit Godfrey’s recantation prior to 2019 and held that the more than one-
year gap between Godfrey’s statement and Miller’s filings was enough by itself to
support summary denial for unjustifiable delay. Id. at ¶ 15-16. The appellate court
went on to opine that “[t]here was no compelling reason to accept Godfrey’s
recantation over his testimony given at trial,” and it concluded that “[t]he trial court
could have determined, without the need for a hearing, that Godfrey’s sworn
statement lacked credibility.” Id. at ¶ 20.
III. Analysis
{¶ 45} The opinion concurring in judgment only correctly points out that
the trial court’s summary denial of relief was insufficient and that the appellate
court erred in weighing the credibility of Godfrey’s statement. However, the
concurrence incorrectly takes it upon itself to fashion a new reason for justifying
the summary denial of Miller’s motion and petition without a hearing—a reason
that the state did not raise and would have been barred from raising before this
court. The concurrence also inappropriately provides quotations of Crim.R.
33(A)(6) and R.C. 2945.79(F) and references to R.C. 2953.21(A)(1)(b), with
misleading omissions, in order to propose harsh evidentiary standards that are not
found in the full language of the rule and statutes. When viewing the arguments
that were actually raised by the parties and applying the rules that are actually
articulated in Crim.R. 33(A)(6), R.C. 2945.79(F), and R.C. 2953.21(A)(1)(b), it is
clear that this matter must be remanded to the trial court with instructions to proceed
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January Term, 2023
to an evidentiary hearing on Miller’s postconviction petition and motion for leave
to file a new-trial motion.
A. The evidence before the trial court
{¶ 46} At no point in the parties’ briefing before the trial court, the court of
appeals, or this court have they argued about whether the trial court should have
disregarded Godfrey’s written recantation because it was in the form of a notarized
acknowledgement rather than an affidavit. The state does point out for the first
time, in a footnote to its brief to this court, that Godfrey’s statement does not meet
the definition of an affidavit under R.C. 2319.02. Regardless, the state continues
to refer to Godfrey’s statement as an affidavit and does not stray from its focus on
the alleged credibility issues with Godfrey’s statement.
{¶ 47} The failure to move to strike or to object to documentary evidence
submitted in support of a motion forfeits any error in the consideration of that
evidence. See State ex rel. Chuvalas v. Tompkins, 83 Ohio St.3d 171, 173-174, 699
N.E.2d 58 (1998); see also State v. Billups, 10th Dist. Franklin Nos. 97APA08-
1041 and 97APA08-1042, 1998 WL 336635, *3 (June 23, 1998) (holding that the
state’s failure to object to the unsworn and unnotarized nature of statements
attached to a postconviction petition ordinarily waives the argument that the
statements lack evidentiary value). Absent extraordinary circumstances, reviewing
courts are not to sua sponte decide matters in favor of the state on issues that were
not considered in the first instance and that were forfeited due to the state’s failure
to raise them. See Wood v. Milyard, 566 U.S. 463, 471-472, 132 S.Ct. 1826, 182
L.Ed.2d 733 (2012). And even when the forfeiture of an issue below is not as clear
as it was here, “it is not generally the proper role of this court to develop a party’s
arguments.” In re Application of Columbus S. Power Co., 129 Ohio St.3d 271,
2011-Ohio-2638, 951 N.E.2d 751, ¶ 19.
{¶ 48} There was no challenge to the nature of the evidence attached to
Miller’s petition and motion, and the evidence was therefore properly before the
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SUPREME COURT OF OHIO
trial court. It is injudicious to declare at the eleventh hour that Godfrey’s statement
is nonevidence in order to conclude that Miller “failed to produce sufficient
evidence” to allow the trial court to even consider whether his claims should
proceed to a hearing. Opinion concurring in judgment only at ¶ 28. It would have
been error for the appellate court to have done so, and it would be wrong for this
court to do so now.
B. New-trial motions
{¶ 49} Nothing in Crim.R. 33 or R.C. 2945.79, each of which enumerate
several grounds for a new trial, provides that affidavits are a procedural prerequisite
for a trial court to hold an evidentiary hearing on a defendant’s new-trial motion.
The opinion concurring in judgment only proposes this prerequisite by
conveniently leaving out a few words when quoting the rule and statute.
{¶ 50} The concurrence indicates that in a motion for new trial based on
newly discovered evidence, “ ‘the defendant must produce * * * affidavits of the
witnesses by whom such evidence is expected to be given.’ ” (Ellipsis added in
opinion concurring in judgment only.) Opinion concurring in judgment only at
¶ 20, quoting Crim.R. 33(A)(6) and R.C. 2945.79(F). Based on this quoted
language, the concurrence concludes that if the defendant’s claim regarding new
evidence is not explicitly supported in affidavit form, the trial court has nothing
before it to allow it to proceed to a hearing.
{¶ 51} However, the complete language of Crim.R. 33(A)(6) and R.C.
2945.79(F) contradicts the conclusion of the concurrence. R.C. 2945.79(F)
provides in full:
When new evidence is discovered material to the defendant,
which he could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon
the ground of newly discovered evidence, the defendant must
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January Term, 2023
produce at the hearing of said motion, in support thereof, the
affidavits of the witnesses by whom such evidence is expected to be
given, and if time is required by the defendant to procure such
affidavits, the court may postpone the hearing of the motion for such
length of time as under all the circumstances of the case is
reasonable. The prosecuting attorney may produce affidavits or
other evidence to impeach the affidavits of such witnesses.
(Emphasis added.) Crim.R. 33(A)(6) similarly provides in full:
When new evidence material to the defense is discovered
which the defendant could not with reasonable diligence have
discovered and produced at the trial. When a motion for a new trial
is made upon the ground of newly discovered evidence, the
defendant must produce at the hearing on the motion, in support
thereof, the affidavits of the witnesses by whom such evidence is
expected to be given, and if time is required by the defendant to
procure such affidavits, the court may postpone the hearing of the
motion for such length of time as is reasonable under all the
circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such
witnesses.
(Emphasis added.)
{¶ 52} The above language does show that a defendant cannot ultimately
obtain relief on a motion for new trial without providing witness affidavits to
support the defendant’s claim. However, it also shows that such affidavits are not
required to proceed to a hearing on the motion, and in fact, this language plainly
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SUPREME COURT OF OHIO
contemplates that a defendant should be given an opportunity to obtain affidavits
after the defendant files the motion for new trial.
{¶ 53} Under no circumstances can Crim.R. 33(A)(6) and R.C. 2945.79(F)
be read to require affidavits in order to merely proceed to a hearing on a motion for
leave to file a new-trial motion. The opinion concurring in judgment only attempts
to rewrite the rules that it claims to be applying, and its conclusion that relief must
be denied without a hearing is fundamentally wrong. The evidence attached to
support Miller’s motion was sufficient under Crim.R. 33(A)(6) and R.C.
2945.79(F) to merit a hearing, and a hearing cannot be foreclosed based on the fact
that the bulk of Miller’s supporting evidence was in the unobjected-to form of an
acknowledged—but not sworn—statement.
C. Postconviction petitions
{¶ 54} The rules governing postconviction petitions in R.C. 2953.21 do not
provide that the filing of a recanting witness’s affidavit is a procedural prerequisite
that would otherwise prohibit a trial court from holding an evidentiary hearing on
a defendant’s petition for postconviction relief. A petitioner does not need to attach
an affidavit that single-handedly disproves matters at trial in order for the petition
to merit a hearing, as the concurring justices seem to think. In fact, the rules are
somewhat to the contrary. It is the record at trial that needs to disprove the
petitioner’s claims in order for the trial court to have the discretion to deprive the
petitioner of a hearing.
{¶ 55} If a postconviction petition “is sufficient on its face to raise an issue
that [the] petitioner’s conviction is void or voidable on constitutional grounds, and
the claim is one which depends upon factual allegations that cannot be determined
by examination of the files and records of the case, the petition states a substantive
ground for relief.” State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975),
paragraph one of the syllabus. The petition need only allege sufficient operative
facts that if true, would set forth a prima facie case that the petitioner’s conviction
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January Term, 2023
rested on a deprivation of the petitioner’s constitutional rights. See State v. Bunch,
__ Ohio St.3d __, 2022-Ohio-4723, __ N.E.3d __, ¶ 45-50. If the record of the case
does not disprove the petitioner’s claim, then the trial court does not have the
discretion to summarily deny the petition without first holding a hearing; rather,
“the court shall proceed to a prompt hearing on the issues” raised in the petition.
(Emphasis added.) R.C. 2953.21(F); see also Bunch at ¶ 24.
{¶ 56} The postconviction statute does not require a petitioner to support
his claim through affidavits. A petitioner “may file a supporting affidavit and other
documentary evidence in support of the claim for relief.” (Emphasis added.) R.C.
2953.21(A)(1)(b). Although an acknowledged, unsworn written statement might
not be enough on its own to allow a trial court to ultimately grant relief in the
petitioner’s favor, the unsworn nature of the writing in no way excuses a trial court
from complying with the hearing requirement of R.C. 2953.21(F).
{¶ 57} Unsworn, acknowledged written statements are a species of self-
authenticating documentary evidence under Evid.R. 902, and thus, they do not
require authentication through an affidavit in order to be admissible evidence. See
Evid.R. 902(8) (“Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required” for “[d]ocuments accompanied by a certificate of
acknowledgment executed in the manner provided by law by a notary public”). In
some cases, even unnotarized documents can properly be considered as “other
documentary evidence” that merit consideration at a hearing on a postconviction
petition. See, e.g., State v. Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983)
(adopting state’s rationale that under some circumstances, “ ‘[a] letter or affidavit
from the court, prosecutors or defense counsel alleging a defect in the plea process
may be sufficient to rebut the record on review and require an evidentiary hearing’ ”
[emphasis added]); Billups, 10th Dist. Franklin Nos. 97APA08-1041 and
97APA08-1042, 1998 WL 336635, at *3 (observing that unsworn, unnotarized
witness statements are not without evidentiary value and can potentially constitute
21
SUPREME COURT OF OHIO
the kind of “other documentary evidence” that would merit a hearing on a
postconviction petition).
{¶ 58} If the state believes that the record disproves a petitioner’s claims,
the state can move for summary judgment on those grounds in accordance with the
applicable rules, i.e., Civ.R. 56. See R.C. 2953.21(E); see also Milanovich, 42 Ohio
St.2d at 51, 325 N.E.2d 540. “In postconviction cases, only careful adherence to
the provisions of Civ.R. 56 can assure that the rights and obligations of both parties
are fairly treated and respected.” Milanovich at 52.
{¶ 59} In sum, the “documentary evidence” attached to a postconviction
petition under R.C. 2953.21(A)(1)(b) can include unsworn statements, and so long
as the totality of the documentary evidence before the trial court identifies sufficient
operative facts to support a petitioner’s claim for postconviction relief, the matter
must proceed to an evidentiary hearing. See R.C. 2953.21(D) and (F). The opinion
concurring in judgment only again ignores part of the plain language of the statute
in order to conclude that “[w]ithout an affidavit in compliance with the
requirements of R.C. 2953.21(D),” a trial court is left with no choice but to deny a
postconviction petition without a hearing. Opinion concurring in judgment only at
¶ 30.
{¶ 60} Miller’s petition alleges that Godfrey did not see Miller shoot
McCoy and that the prosecution coerced Godfrey to testify otherwise at Miller’s
murder trial. Godfrey’s testimony was the keystone of the state’s case against
Miller, and thus, the truth or falsity of that testimony controlled the outcome of
Miller’s trial. Such allegations undoubtedly state a substantive ground for relief.
See Giglio, 405 U.S. at 154, 92 S.Ct. 763, 31 L.Ed.2d 104, quoting Napue v. Illinois,
360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (“A new trial is required
if ‘the false testimony could * * * in any reasonable likelihood have affected the
judgment of the jury * * * ’ ” [ellipsis added in Giglio]). The record on its face
does not disprove the claim that Godfrey perjured himself at Miller’s trial. As with
22
January Term, 2023
Miller’s new-trial motion, a hearing on his postconviction petition cannot be
foreclosed based on the fact that the bulk of Miller’s supporting evidence was in
the unobjected-to form of an acknowledged but not sworn statement.
IV. Conclusion
{¶ 61} It is the antithesis of judicial restraint to decide an appeal based on a
legal issue not raised or briefed by the parties and to rewrite the applicable statutes
and rules in the process. The basis for rejecting Miller’s appeal outlined in the
opinion concurring in judgment only crosses the line into advocacy for the state and
overrides the plain meaning of R.C. 2953.21, R.C. 2945.79, and Crim.R. 33. This
is not the appropriate forum for this court to alter the meaning of Crim.R. 33, and
it is up to the General Assembly, not this court, to decide whether it is preferable to
have unnecessarily formalistic statutory standards to shield trial courts from having
to hold hearings on nonfrivolous postconviction claims.
{¶ 62} The evidence attached to Miller’s postconviction petition and
motion for leave was properly before the trial court in the absence of the state’s
objection to the form of that evidence. Miller provided sufficient evidence to merit
a hearing on his claims, and the trial court erred in summarily denying relief without
first holding an evidentiary hearing. I would reverse the judgment of the Eighth
District Court of Appeals and remand the cause to the trial court with an order to
proceed to an evidentiary hearing on Miller’s postconviction petition and motion
for leave to file a new-trial motion. Accordingly, I dissent.
STEWART and BRUNNER, JJ., concur in the foregoing opinion.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Anthony T. Miranda and Kristen Hatcher, Assistant Prosecuting Attorneys, for
appellee.
John P. Parker, for appellant.
_________________
23
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
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[
"4",
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Law
9880844
[SEGMENT 1]
2024 IL 129201
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 129201)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RYAN
SHAVOR DON REDMOND, Appellee.
Opinion filed September 19, 2024.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Overstreet, Cunningham, Rochford, and
O’Brien concurred in the judgment and opinion.
Justice Holder White took no part in the decision.
OPINION
¶1 In this case we must determine, after the recent changes to Illinois’s cannabis
laws, whether a police officer’s detection of the odor of burnt cannabis, considered
alone or in conjunction with other facts, provides probable cause to conduct a
warrantless search of a vehicle. Illinois State Police officer Hayden Combs conducted a search of Ryan Redmond’s vehicle based on, inter alia, his detection
of the strong odor of burnt cannabis emanating from the vehicle. The State
primarily argues that Combs had probable cause to suspect that a search of the
vehicle would uncover evidence that cannabis was improperly contained in the
vehicle or, more likely, uncover evidence that Redmond had used cannabis on his
trip from Des Moines to Chicago. See [CITATION] (“No
driver may use cannabis within the passenger area of any motor vehicle upon a
highway in this State.”). Combs searched Redmond’s car and found one gram of
cannabis inside the center console in a plastic bag.
¶2 The State charged Redmond with unlawful possession of cannabis in violation
of [CITATION] and unlawful possession of cannabis by a driver in violation of [CITATION].
Redmond filed a motion to suppress the cannabis. The Henry County circuit court
granted the motion, and the appellate court affirmed, holding that recent changes to
the law pertaining to cannabis made the odor of burnt cannabis, standing alone,
insufficient to justify a warrantless search of an automobile. [CITATION], ¶ 21.
¶3 We allowed the State’s petition for leave to appeal pursuant to Illinois Supreme
Court Rule 315 (eff. Oct. 1, 2021). We also allowed the American Civil Liberties
Union, ACLU of Illinois, National Association of Criminal Defense Lawyers, and
the Illinois Association of Criminal Defense Lawyers to file an amici curiae brief
on behalf of Redmond’s position. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). For
the following reasons, we affirm the judgment of the appellate court.
¶4 I. BACKGROUND
¶5 On September 15, 2020, Officer Combs saw a car with an improperly secured
license plate traveling at a speed of 73 miles per hour in a 70-mile-per-hour zone
on Interstate 80 in Henry County. Combs initiated a traffic stop of Redmond’s
vehicle. Combs approached on the passenger side, and when Redmond rolled down
the passenger-side window, Combs smelled burnt cannabis. According to the
complaint, Combs searched Redmond’s car and found one gram of cannabis in the
center console in a plastic bag.
¶6 A. Circuit Court
¶7 On June 29, 2021, Redmond filed a motion to suppress the evidence—the
cannabis—the police found in his car. The court heard the motion on August 4,
2021.
¶8 At the hearing on the motion, Combs testified that he stopped Redmond because
his vehicle was travelling at 73 miles an hour in a 70-mile-per-hour zone (see [CITATION])
(setting the “maximum speed limit” at “70 miles per hour upon any interstate highway”))
and the vehicle had an improper display of registration (see [CITATION] (“every registration plate or
digital registration plate shall at all times be securely fastened in a horizontal
position to the vehicle”)). 1 When Combs approached, he smelled the odor of burnt
cannabis emitting from the vehicle. During the State’s examination, Combs
testified that the odor was very strong. Combs also testified he asked Redmond
about the odor and Redmond denied having smoked cannabis in the vehicle.
¶9 Combs’s examination of the vehicle did not reveal anything that was lit or
currently emitting the odor of cannabis from the vehicle. Combs also agreed that
he did not see any cannabis in plain view. Combs had Redmond step out of his
vehicle and seated him in the squad car. With Redmond out of his vehicle, Combs
could still smell the odor of burnt cannabis in the vehicle, but he could not recall
smelling the odor of burnt cannabis on Redmond’s person. Combs admitted he saw
no signs of impairment when he spoke to Redmond.
¶ 10 Redmond did not produce his license and registration. Using information
obtained from Redmond, Combs retrieved a record showing that Redmond had a
valid Illinois license with a Chicago address. Combs testified that Redmond failed
to give a straight answer to questions about where he lived, but Combs admitted
Redmond said he lived in Chicago and had stayed with a friend in Des Moines.
Redmond has not contested the validity of the stop in any court, and thus, we do not analyze
the validity of the stop in this case.
¶ 11 Combs testified that he searched the car because there was an odor of burnt
cannabis, Redmond gave evasive answers, Interstate 80 was “a known drug
corridor,” and Redmond admitted he was driving from Des Moines to Chicago,
where both cities are “hub[s] of criminal activity.” Combs’s search uncovered
approximately one gram of cannabis in the center console in a plastic bag.
¶ 12 In an order dated November 10, 2021, the circuit court granted the motion to
suppress, finding Combs lacked probable cause for the warrantless search. The
court first noted what was not present during the stop; namely, Combs did not
observe any signs of impairment or signs indicative of recent cannabis use. Combs
also did not observe any paraphernalia, loose or unpackaged cannabis, or the odor
of raw cannabis coming from the vehicle. The circuit court found that “nothing”
about Redmond’s “living arrangement, travel plans, or travel route add[ed] to the
likelihood that [he] was engaged in criminal conduct.” As to the odor of burnt
cannabis, the circuit court found that, because the smell of burnt cannabis could
persist even if possessed and used wholly within the bounds of Illinois law, the
smell of burnt cannabis standing alone could not constitute probable cause for a
warrantless vehicle search.
¶ 13 On November 10, 2021, the State filed an interlocutory appeal pursuant to
Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017) with a certificate stating
that the order substantially impaired its prosecution of the case. See [CITATION].
¶ 14 B. Appellate Court
¶ 15 The appellate court held that “ ‘the smell of the burnt cannabis, without any
corroborating factors, is not enough to establish probable cause to search the
vehicle.’ ” [CITATION]. The appellate court, like the trial court, pointed out the
absence of evidence supporting the search. Id. ¶ 22 (“Redmond did not delay
pulling over or make any furtive movements, he rolled down the window when
Combs came to the passenger side of the vehicle, and Combs did not observe any
cannabis or related drug paraphernalia in the vehicle, smoke in the vehicle, or signs
of impairment in Redmond.”).
¶ 16 The court also found a lack of evidence supporting Combs’s testimony that
Interstate 80 was a known drug corridor and that Des Moines and Chicago were
hubs of criminal activity. [CITATION] Both facts were unrelated to and
unsupportive of Combs’s suspicion that Redmond had smoked cannabis in the
vehicle. [CITATION] The appellate court affirmed the circuit court’s judgment suppressing
the cannabis seized in the warrantless search of Redmond’s car. [CITATION]
¶ 17 This court granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. Oct. 1, 2021).
¶ 18 II. ANALYSIS
¶ 19 The sole issue before this court is whether Officer Combs had probable cause
to search Redmond’s vehicle after Combs smelled the odor of burnt cannabis
coming from the vehicle. The State argued in its brief that “where the officer
detected the strong odor of burnt cannabis—a reasonable officer was justified in
suspecting either a violation of the odor-proof transportation requirement or,
perhaps more likely, the prohibition on the use of cannabis within a vehicle.”
Redmond responds that, after the legislature legalized the use and possession of
cannabis, the odor of burnt cannabis emanating from a vehicle alone “lacks a clear
and direct enough connection to illegal activity to make it ‘probable’ that a crime
has recently been committed or is being committed.”
[SEGMENT 2]
¶ 20 A. Standard of Review
¶ 21 We review the trial court’s ruling on the motion to suppress under the two-part
standard enunciated by the United States Supreme Court in Ornelas v. United
States, 517 U.S. 690, 696-97 (1996). [CITATION] “Factual
findings by the trial court will be reversed only if they are against the manifest
weight of the evidence, but the ultimate legal determination as to whether
suppression is warranted is reviewed de novo.” [CITATION]
¶ 22 B. Constitutional Prohibitions Against
Unreasonable Searches
¶ 23 The fourth amendment to the United States Constitution provides: “The right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause ***.” U.S. Const., amend. IV. The Illinois
Constitution similarly provides: “The people shall have the right to be secure in
their persons, houses, papers and other possessions against unreasonable searches
***. No warrant shall issue without probable cause ***.” Ill. Const. 1970, art. I,
§ 6. “[S]earches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well-delineated exceptions.” [CITATION]
¶ 24 One well-established exception is for searches of automobiles. See [CITATION] (“There are recognized exceptions to the general rule, however, including an
exception for searches of vehicles.”). The automobile exception is justified because
of an automobile’s “transient nature,” which “often renders it impracticable to
secure a warrant before the automobile escapes the jurisdiction in which the warrant
must be sought.” [CITATION] “Under the automobile exception, law
enforcement officers may undertake a warrantless search of a vehicle if there is
probable cause to believe that the automobile contains evidence of criminal activity
that the officers are entitled to seize.” [CITATION]
¶ 25 C. Probable Cause to Search
¶ 26 Probable cause exists where the evidence known to the officer raises a “fair
probability that contraband or evidence of a crime will be found in a particular
place.” [CITATION]; see id. at 243 n.13 (“[P]robable
cause requires only a probability or substantial chance of criminal activity, not an
actual showing of such activity.”). “Whether the necessary probability exists is
governed by commonsense considerations that are factual and practical, rather than
by technical rules.” [CITATION] “[P]robable cause does
not require an officer to rule out any innocent explanations for suspicious facts.”
Hill, [CITATION], ¶ 24. “Instead, it requires only that the facts available to the
officer—including the plausibility of an innocent explanation—would warrant a
reasonable man to believe there is a reasonable probability” that a search of the
automobile will uncover contraband or evidence of criminal activity. Id. “A court
must examine the events leading up to the search or seizure, and then decide
whether these historical facts, viewed from the standpoint of an objectively
reasonable law enforcement officer, amount to probable cause.” [CITATION].
¶ 27 D. Evolution of Cannabis Law
¶ 28 Because cannabis law has changed drastically over the last decade, we briefly
address the evolution of statutes dealing with cannabis and the caselaw analyzing
whether probable cause exists based on an officer’s detection of the odor of
cannabis coming from a vehicle. And because probable cause deals with the
probability that a search will produce contraband or evidence of criminal activity,
we address the state of cannabis laws at the time of the stop in September 2020.
¶ 29
. Pre-2013: All Cannabis Is Contraband
¶ 30 Prior to 1971, marijuana was classified as a narcotic and punished accordingly.
See [CITATION] (per curiam) (observing that the
legislature had recently removed marijuana from the purview of the Narcotic Drug
Act (Ill. Rev. Stat. 1969, ch. 38, ¶ 22-1 et seq.)). In 1971, the legislature enacted
the Control Act. See Pub. Act 77-758, § 1 (adding Ill. Rev. Stat. 1971, ch. 56½,
§ 701 et seq.). 2 The Control Act provided: “It is unlawful for any person knowingly
to possess cannabis.” Id. § 704. The Control Act set penalties between a Class C
misdemeanor for the possession of not more than 2.5 grams of any substance
Among the legislative findings were that cannabis was “widely used and pervasive among the
citizens of Illinois” and that previous laws on cannabis had “unnecessarily and unrealistically drawn
a large segment of our population within the criminal justice system.” Ill. Rev. Stat. 1971, ch. 56½,
§ 701. The General Assembly declared its intent to “establish a reasonable penalty system which is
responsive to the current state of knowledge concerning cannabis and which directs the greatest
efforts of law enforcement agencies toward the commercial traffickers and large-scale purveyors of
cannabis.” Id.
containing cannabis and a Class 3 felony for the possession of more than 500 grams
of any substance containing cannabis. Id. § 704(a)-(e).
¶ 31 In [CITATION], this court held that “additional
corroboration” was not required to establish probable cause for a warrantless search
“where a trained and experienced police officer detects the odor of cannabis
emanating from a defendant’s vehicle.” The defendant had been pulled over for
making an illegal turn. Id. at 81. As the officer approached the vehicle, he smelled
the odor of “burning cannabis from inside the defendant’s car.” Id. at 87. We
explained that a “police officer’s detection of controlled substances by their smell
has been held to be a permissible method of establishing probable cause.” Id. This
court added that the officer, “when confronted with circumstances which tended to
indicate that criminal activity was taking place,” had a duty “to investigate in order
to determine whether such criminal activity in fact existed.” Id.
¶ 32
. Legalization (Medical) and
Decriminalization Phase
¶ 33 In 2013, the General Assembly promulgated the Compassionate Use of Medical
Cannabis Pilot Program Act (Medical Act). See Pub. Act 98-122, § 1 (eff. Jan. 1,
2014) (adding 410 ILCS 130/1 et seq.). The Medical Act made it lawful for certain
individuals with debilitating medical conditions to possess and use cannabis. 410
ILCS 130/10(t), 25(a) (West 2014). Nevertheless, the Vehicle Code prohibited the
use of cannabis in a motor vehicle (625 ILCS 5/11-502.1(a) (West 2014)), and if it
was possessed in a motor vehicle, the cannabis was required to be stored in a
“sealed, tamper-evident medical cannabis container” (id. § 11-502.1(b), (c)).
¶ 34 In 2016, the Control Act was amended, and the possession of not more than 10
grams of any substance containing cannabis was made a civil law violation with a
minimum fine of $100 and a maximum fine of $200. 720 ILCS 550/4(a) (West
2018); see Pub. Act 99-697, § 40 (eff. July 29, 2016). Possession of more than 10
grams of a substance containing cannabis remained criminal, with penalties ranging
from a Class B misdemeanor to a Class 1 felony. See 720 ILCS 550/4(b)-(g) (West
2018).
```
¶ 35 During the evolution of Illinois’s cannabis laws—the legalization of medical
cannabis and the decriminalization of the possession of small amounts of
cannabis—this court decided [CITATION]. In [CITATION], this court decided the
propriety of a search that occurred on May 29, 2017. [CITATION]. ¶ 5. The defendant was
pulled over based on the officer’s belief that the passenger was a fugitive. [CITATION]. The
defendant drove a few blocks before pulling over, which the officer testified was
indicative of someone in the car concealing or destroying contraband or producing
a weapon. [CITATION]. The officer approached the passenger side and immediately smelled
the strong odor of raw cannabis. [CITATION]. The passenger admitted that he was a cannabis
user and that he had smoked cannabis earlier that day. [CITATION]. ¶ 10. The officer also
observed in plain view a “bud” in the back seat of the car. [CITATION].
[SEGMENT 3]
¶ 36 This court first declined to address the “narrow legal issue” of whether [CITATION]
remained good law because, unlike the officer in [CITATION], the officer relied on more
than the odor of raw cannabis. [CITATION]. ¶¶ 16, 18. In a footnote we stated: “Although we
do not reach whether the odor of cannabis, alone, is sufficient to establish probable
cause, the smell and presence of cannabis undoubtedly remains a factor in a
probable cause determination.” [CITATION]. ¶ 18 n.2.
¶ 37 This court then analyzed the changes in Illinois’s cannabis law. [CITATION]. ¶¶ 27-31.
We rejected the defendant’s argument that decriminalization of the possession of
small amounts of cannabis affected the probable cause analysis because the
possession of cannabis remained unlawful. See [CITATION]. ¶ 31 (“the decriminalization of
possessing small amounts of cannabis did not alter the status of cannabis as
contraband”). Regarding the Medical Act, we noted that, “[w]hile the mere
presence of cannabis for medical users may no longer be immediately attributable
to criminal activity or possession of contraband, such users must possess and use
cannabis in accordance with the [Medical] Act.” [CITATION]. ¶ 34 (citing the Vehicle Code’s
requirement that a medical user must possess cannabis within a motor vehicle in a
“sealed, tamper-evident medical cannabis container” (625 ILCS 5/11-502.1(b), (c)
(West 2016))).
¶ 38 With the legal framework established, this court found that the officers had
probable cause to search the defendant’s vehicle based on the totality of the
circumstances, including (1) the defendant’s delay in pulling over and the officer’s
testimony that a delay often means the car’s occupants are hiding contraband or
``` retrieving a weapon, (2) the passenger stating that he smokes cannabis and had done
so that day, (3) the officer’s observation of a loose “bud” in the back seat, and
(4) the strong odor of raw cannabis, which, “together,” indicated that cannabis was
in the car and likely not properly contained. [CITATION] ¶ 35. We then analyzed the case
under standards we have used related to an officer’s smell of alcohol because, like
cannabis, “possession of alcohol is lawful under some circumstances but remains
unlawful under other circumstances.” [CITATION] ¶ 36. We concluded that there was
probable cause because, as the alcohol precedent instructed, there was some indicia
of criminality in addition to the smell of cannabis. [CITATION] ¶¶ 36-37.
¶ 39
. Public Act 101-27: Cannabis Act Amended and
Regulation Act Enacted
¶ 40 On June 25, 2019, the General Assembly promulgated Public Act 101-27 (eff.
June 25, 2019), which, along with Public Act 101-593, § 35 (eff. Dec. 4, 2019),
amended the Control Act to provide: “Except as otherwise provided in the Cannabis
Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person
knowingly to possess cannabis.” [CITATION] (amending 720 ILCS 550/4). The Control Act
maintained the same penalty structure regarding the possession of cannabis: the
possession of not more than 10 grams of a substance containing cannabis remained
a civil law violation, and the possession of more than 10 grams was penalized
ranging from a Class B misdemeanor to a Class 1 felony. See 720 ILCS 550/4(a)-
(g) (West 2020).
¶ 41 In Public Act 101-27 (eff. June 25, 2019), the General Assembly also enacted
the Cannabis Regulation and Tax Act (Regulation Act) (410 ILCS 705/1-1 et seq.
(West 2020)), the most comprehensive and detailed legislation regarding the use
and possession of cannabis in the State of Illinois. In what could be described as
the legalization clause, section 10-5 of the Regulation Act provides:
“Beginning January 1, 2020, notwithstanding any other provision of law, and
except as otherwise provided in this Act, the following acts are not a violation
of this Act and shall not be a criminal or civil offense under State law or the
ordinances of any unit of local government of this State or be a basis for seizure
or forfeiture of assets under State law for persons other than natural individuals
under 21 years of age:
- 10 - (1) possession, consumption, use, purchase, obtaining, or transporting
cannabis paraphernalia or an amount of cannabis for personal use that does
not exceed the possession limit under Section 10-10 or otherwise in
accordance with the requirements of this Act[.]” [CITATION]
Section 10-10 of the Regulation Act defines the possession limit “for a person who
is 21 years of age or older and a resident of this State” as “(1) 30 grams of cannabis
flower; (2) no more than 500 milligrams of THC contained in cannabis-infused
product; [and] (3) 5 grams of cannabis concentrate.” [CITATION] 3
Pursuant to the Regulation Act, it is generally legal for an Illinois resident who is
over the age of 21 to use cannabis and to possess up to 30 grams of cannabis. Thus,
the Regulation Act provides an exception to the Control Act’s prohibition against
the possession of cannabis. Compare [CITATION], with [CITATION].
¶ 42 Section 10-35 of the Regulation Act, titled “Limitations and penalties,”
provides that the Regulation Act
“does not permit any person to engage in, and does not prevent the imposition
of any civil, criminal, or other penalties for ***
***
(2) possessing cannabis ***
***
(D) in a vehicle not open to the public unless the cannabis is in a
reasonably secured, sealed container and reasonably inaccessible while
the vehicle is moving[.]” [CITATION]
The legislative findings for the Regulation Act include the following:
“In the interest of allowing law enforcement to focus on violent and property crimes, generating
revenue for education, substance abuse prevention and treatment, freeing public resources to
invest in communities and other public purposes, and individual freedom, the General
Assembly finds and declares that the use of cannabis should be legal for persons 21 years of
age or older and should be taxed in a manner similar to alcohol.” [CITATION]
- 11 - Section 10-35 also provides that the Regulation Act “does not permit any person to
engage in, and does not prevent the imposition of any civil, criminal, or other
penalties for *** (3) using cannabis *** (D) in any motor vehicle *** [or] (F) in
any public place.” Id. § 10-35(a)(3)(D), (F). Thus, if an individual engages in the
conduct described in section 10-35, the section 10-5 immunity provision is rendered
inapplicable. 4
¶ 43 The Vehicle Code, amended at the same time and in the same public act that
created the Regulation Act, prohibits the use of cannabis in a vehicle upon a
highway and restrains how an individual may possess cannabis within a vehicle.
Pub. Act 101-27 (eff. June 25, 2019) (adding 625 ILCS 5/11-502.15). The Vehicle
Code provides: “No driver may use cannabis within the passenger area of any motor
vehicle upon a highway in this State.” 625 ILCS 5/11-502.15(a) (West 2020). The
Code also provides that “[n]o driver may possess cannabis within any area of any
motor vehicle upon a highway in this State except in a sealed, odor-proof, child-
resistant cannabis container.” Id. § 11-502.15(b). 5
¶ 44 E. The Odor of Burnt Cannabis Alone
No Longer Establishes Probable Cause
¶ 45 After January 1, 2020, when the use and possession of cannabis was legalized
in many instances, our appellate court has reached conflicting results in cases
concerning the effect of legalization on probable cause for automobile searches.
The Second District has held that the odor of burnt cannabis, standing alone, still
justifies a warrantless search of an automobile. See [CITATION], ¶ 31 (holding that an officer that smells the strong odor of burnt
cannabis coming from a vehicle has “probable cause to believe that cannabis is
The use and possession of up to “30 grams of cannabis flower; *** no more than 500
milligrams of THC contained in cannabis-infused product; [and] *** 5 grams of cannabis
concentrate” is not a criminal or civil offense under state law (410 ILCS 705/10-5(a)(1), 10-10(a)(1)-
(3) (West 2020)), but section 10-35 of the Regulation Act removes its protection for the use of
cannabis in a motor vehicle and the possession of cannabis in a motor vehicle “unless the cannabis
is in a reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving”
(id. § 10-35(a)(2)(D), (3)(D)).
[SEGMENT 4]
Redmond does not contest the validity of the odor-proof container requirement. In [CITATION], a case dealing with a police officer’s detection of the odor of raw cannabis
coming from a vehicle, we address the validity of the odor-proof container requirement.
- 12 - being transported, possessed, or used in a manner contrary to law”). The Third
District has held that “the smell of the burnt cannabis, without any corroborating
factors, is not enough to establish probable cause to search [a] vehicle.” [CITATION],
¶ 28. We now resolve the conflict between the districts and consider whether the legalization of cannabis affects the legality of warrantless
searches based on the odor of burnt cannabis.
¶ 46 At oral argument, the State conceded 6 that the smell of burnt cannabis, standing
alone, is insufficient to give an officer probable cause to search a vehicle. 7 While
we are not bound by the State’s concession ([CITATION], ¶ 44), we agree with the concession in this case. The laws on cannabis have changed
in such a drastic way as to render the smell of burnt cannabis, standing alone,
insufficient to provide probable cause for a police officer to search a vehicle without
a warrant. See 720 ILCS 550/4 (West 2020); 410 ILCS 705/10-5(a)(1), 10-10(a)
(West 2020); 625 ILCS 5/11-502.15 (West 2020).
¶ 47 Unlike the legal landscape considered in [CITATION], Illinois cannabis law has evolved,
and use and possession have not only been decriminalized in numerous situations,
but they have been legalized in numerous situations. See 410 ILCS 705/10-5(a)(1),
10-10(a) (West 2020). There are now a myriad of situations where cannabis can be
used and possessed (id.), and the smell resulting from that legal use and possession
is not indicative of the commission of a criminal offense. See 720 ILCS 5/2-12
(West 2020) (“ ‘Offense’ means a violation of any penal statute of this State.”).
Therefore, given the fact that under Illinois law the use and possession of cannabis
is legal in some situations and illegal in others, the odor of burnt cannabis in a motor
The following two colloquies occurred during oral argument:
CHIEF JUSTICE THEIS: “So you are conceding that the case *** where there is burnt
marijuana, you are conceding that that is the case in which the analysis should be totality of the
circumstances?”
STATE: “Yes. *** The smoked cannabis, yes. *** It is not directly before this court
because there were additional circumstances beyond the smell of cannabis alone.”
***
JUSTICE HOLDER WHITE: “Okay, so burnt cannabis, you’re stopped and the officer
smells burnt cannabis. *** Your argument is that that alone is insufficient to search the
vehicle?”
STATE: “I think that’s correct though it’s not necessarily before this court *** because
there were additional circumstances in this case which I believe led to the probable cause.”
The State argued in its brief that “the odor of cannabis—whether in raw or burnt form—
continues to provide police with probable cause to search the vehicle.”
- 13 - vehicle, standing alone, is not a sufficiently inculpatory fact that reliably points to
who used the cannabis, when the cannabis was used, or where the cannabis was
used.
¶ 48 A comparison to the odor of alcohol caselaw supports the conclusion that
probable cause does not exist based on the smell of burnt cannabis alone. See 410
ILCS 705/1-5(b) (West 2020) (finding that “cannabis should be regulated in a
manner similar to alcohol”). “Similar to cannabis, possession of alcohol is lawful
under some circumstances but remains unlawful under other circumstances.” [CITATION], 2020 IL 124595, ¶ 36; see, e.g., 625 ILCS 5/11-502(a) (West 2020) (providing that
“no driver may transport, carry, possess or have any alcoholic liquor within the
passenger area of any motor vehicle upon a highway in this State except in the
original container and with the seal unbroken”); 625 ILCS 5/11-501(a) (West 2020)
(“A person shall not drive or be in actual physical control of any vehicle within this
State while: (1) the alcohol concentration in the person’s blood, other bodily
substance, or breath is 0.08 or more ***.”). Our cases, and those of other
jurisdictions, support the proposition that more is needed to establish probable
cause than the odor of alcohol.
¶ 49 For example, in [CITATION], the officer stopped
the driver of a truck based on an expired sticker. The officer smelled alcohol on the
defendant’s breath and observed an open bottle in a brown paper bag. [CITATION].
“The bottle’s neck was exposed and the officer could observe that it contained
liquid.” [CITATION]. “Judging from the shape of the bottle and color of the label on the neck,
the officer was nearly certain that it was a bottle of Miller’s beer.” [CITATION]. We held that
on this information “alone it was reasonable for the officer to enter the passenger
compartment of the defendant’s vehicle in order to inspect the bottle and search for
alcohol.” [CITATION]. Similarly, the appellate court held that probable caused existed
in [CITATION], where the officers (1) observed
a passenger’s hurried and suspicious movements, (2) observed liquid dripping from
the glove compartment, and (3) smelled the odor of alcohol. The court held that the
“odor of alcohol associated with the dripping glove compartment would warrant
the belief of a reasonable man that further investigation was appropriate.” [CITATION].
- 14 - ¶ 50 Courts from other states agree. In [CITATION], the Supreme Court of Kansas held that probable cause to search a vehicle
did not exist based on the strong odor of alcohol coming from the vehicle. There,
officers stopped the defendant for a turn signal violation. [CITATION]. When the
officers approached, they smelled the very strong odor of alcohol. [CITATION]. The defendant
exited the vehicle, passed field sobriety tests, and then was allowed to reenter the
vehicle. [CITATION]. The officers then searched the vehicle. [CITATION].
¶ 51 The court conducted a detailed analysis of the facts known to the officers in
relation to the crime suspected, transporting an open container of alcohol, to
determine if there was a “fair probability” that a search would uncover evidence of
the crime. [CITATION]. The court noted several exculpatory facts that the officers
discovered during their investigation, including that the defendant passed a field
sobriety test and that an initial observation into the vehicle uncovered no open
containers. [CITATION]. The court stated:
“the totality of the circumstances in this case only establishes that the officers’
observation of a very strong odor of alcohol emanating from within the vehicle,
which they suspected to be the result of spilled alcohol, provided them with
reasonable suspicion to extend the traffic infraction detention to further
investigate whether [the defendant] was transporting an open container of
alcohol.” [CITATION].
The court concluded that the “officers’ failure to acquire additional inculpatory
facts relating to the crime being investigated before commencing their search of the
vehicle rendered the search unreasonable and unlawful.” [CITATION]; see [CITATION] (odor of alcohol did not justify search during a
traffic stop).
¶ 52 In [CITATION], the Minnesota Supreme
Court extended the reasoning of [CITATION] to a case involving the odor of cannabis
in a vehicle. The Torgerson court said:
“[W]e hold that the odor of marijuana may be considered as part of the probable
cause calculus. Specifically, the odor of marijuana is one of the circumstances
in the totality of circumstances analysis that should be considered in
- 15 - determining if there is a ‘fair probability’ that contraband or evidence of a crime
will be found in the location searched. [Citations.]
***
It is undisputed that the only indication that evidence of a crime or
contraband may be found in Torgerson’s vehicle was the odor of marijuana
emanating from the vehicle. *** There was nothing in Torgerson’s actions to
give suspicion that he was under the influence while driving, no drug
paraphernalia or other evidence to indicate that the marijuana was being used
in a manner, or was of such a quantity, so as to be criminally illegal, and no
evidence showing that any use was not for legal medicinal purposes. In the
absence of any other evidence as part of the totality of the circumstances
analysis, the evidence of the medium-strength odor of marijuana, on its own, is
insufficient to establish a fair probability that the search would yield evidence
of criminally illegal drug-related contraband or conduct.” Id. at 174-75.
[SEGMENT 5]
¶ 53 The Minnesota Supreme Court’s ruling comports with several recent decisions
from other states that have reduced or eliminated criminal penalties for cannabis
possession and use. See [CITATION] (“the
odor of marijuana alone does not amount to probable cause to conduct a warrantless
search of a vehicle but, rather, may be considered as a factor in examining the
totality of the circumstances”); [CITATION]
(“Since the enactment of the 2008 initiative decriminalizing the
possession of one ounce or less of marijuana, we have held that the odor of burnt
marijuana alone cannot support probable cause to search a vehicle without a
warrant.”).
¶ 54 Therefore, based on our precedent and the state of cannabis laws at the time of
the search, we hold that the odor of burnt cannabis is a fact that should be
considered when determining whether police have probable cause to search a
vehicle, but the odor of burnt cannabis, standing alone without other inculpatory
facts, does not provide probable cause to search a vehicle. In light of our holding,
Stout’s core holding—that an officer’s detection of the odor of burnt cannabis
emanating from a vehicle, standing alone, establishes probable cause to conduct a
warrantless search of the vehicle—is no longer valid for searches that occurred on
- 16 - or after January 1, 2020.
¶ 55 F. The Totality of the Circumstances Did
Not Provide Probable Cause to Search
¶ 56 We have summarized the state of the law regarding cannabis in September
2020. Now we will discuss in more detail the legal landscape in relation to the
search in this case. We pause here to discuss, in slightly more detail, what crimes
Combs was investigating.
¶ 57 First, the State argues that Redmond was likely violating the Vehicle Code by
using cannabis in a motor vehicle. 625 ILCS 5/11-502.15 (West 2020). Section 11-
502.15 of the Vehicle Code provides: “No driver may use cannabis within the
passenger area of any motor vehicle upon a highway in this State.” Id. § 502.15(a).
Second, Redmond may have violated the Vehicle Code by possessing cannabis in
a motor vehicle in violation of the Vehicle Code. See id. § 11-502.15(b) (“No driver
may possess cannabis within any area of any motor vehicle upon a highway in this
State except in a sealed, odor-proof, child-resistant cannabis container.”). What is
notable about the Vehicle Code provisions is that they do not prohibit the
possession or use of cannabis within a motor vehicle. See id. § 502.15. The
gravamen of the offenses is that the conduct occurs “upon a highway in this State.” 8
Thus, it would not have been a violation of the Vehicle Code for Redmond to have
used cannabis in a motor vehicle before he left Des Moines or in any location within
Illinois not considered a “highway.” 9
¶ 58 Finally, the State points to the Regulation Act’s (1) prohibition against the use
of cannabis in a motor vehicle and (2) prohibition against the possession of
cannabis in a motor vehicle “unless the cannabis is in a reasonably secured, sealed
container and reasonably inaccessible while the vehicle is moving.” 410 ILCS
705/10-35(a)(2)(D) (West 2020); id. § 10-35(a)(3)(D). Notably, these are not
We note the narrowness of these prohibitions in comparison to the prohibition against driving
while under the influence, which applies if a person “drive[s]” or is in “actual physical control of
any vehicle within this State.” 625 ILCS 5/11-501(a) (West 2020).
The Vehicle Code defines “highway” as the “[t]he entire width between the boundary lines of
every way publicly maintained when any part thereof is open to the use of the public for purposes
of vehicular travel or located on public school property.” 625 ILCS 5/1-126 (West 2020).
- 17 - offenses themselves. Instead, the Control Act establishes the penalty structure for
the possession of cannabis. See 720 ILCS 550/4(a)-(g) (West 2020). Section 10-5
of the Regulation Act then generally grants immunity from prosecution for the use
and possession of cannabis. Section 10-35 then describes conduct for which section
10-5 does not apply. In other words, if the State can establish that an individual is
engaged in conduct described in section 10-35 (i.e., the individual used cannabis in
the vehicle or possessed cannabis in an unauthorized container), the individual’s
possession of cannabis is not immune from the Control Act’s general prohibition
against the possession of cannabis.
¶ 59 The State contends that the totality of the circumstances, including Combs’s
detection of the strong odor of burnt cannabis, made it reasonable to suspect that
Redmond had smoked cannabis in the car on his way from Des Moines to Chicago.
The State relies on the following facts in addition to the strong smell of burnt
cannabis coming from the vehicle: (1) the stop occurred on Interstate 80, halfway
between Des Moines and Chicago, (2) Combs continued to smell the odor of burnt
cannabis in the vehicle after he removed Redmond, (3) Redmond did not produce
his license and registration, and (4) Redmond did not provide direct answers to
Combs’s questions about where he lived or why he was traveling from Des Moines
to Chicago. The State concludes that these facts established probable cause to
believe that Redmond violated the Vehicle Code and Regulation Act.
¶ 60 The first two facts are not inculpatory facts that provide probable cause for a
search. Notably, the State has abandoned its argument related to, and the trial court
discounted as “unpersuasive,” Combs’s testimony that Interstate 80 is a “drug
corridor.” That Redmond had likely been in the car for a lengthy period and that
the smell of cannabis remained in the car when Redmond was removed support a
reasonable suspicion that he had smoked cannabis in the car at some point.
However, Combs, aside from the smell, observed no signs of impairment and no
drug paraphernalia or evidence of cannabis use in the car. See [CITATION], 321 P.3d
at 763 (“Country common sense would likewise lead one to believe that an
intoxicated person would be more likely to have an open container in the vehicle
from which he or she had been drinking than a sober person who had passed the
field sobriety tests.”). Combs also did not smell the odor of burnt cannabis on
Redmond, which undercuts the reasonable belief that Redmond had recently
smoked cannabis inside the vehicle while on an Illinois highway.
- 18 - ¶ 61 We are unpersuaded that the two latter facts provided any support to the
probable cause analysis. First, while it is a violation of the Vehicle Code for a driver
not to have his driver’s license in his immediate possession when operating a motor
vehicle (625 ILCS 5/6-112 (West 2020)), that violation does not add to the probable
cause analysis because it did not make it any more likely that evidence of the
suspected crime would be present. Also, Combs’s search through the Secretary of
State’s database established that Redmond had a valid Illinois license at the time of
the stop. Second, the trial court found, and we agree, that there was a semantic
difference between Combs and Redmond regarding Redmond’s living
arrangements. Redmond explained that he lived in Chicago but was temporarily
staying in Des Moines because of the pandemic. Combs continued to construe that
explanation as Redmond stating that his permanent address had changed to
Des Moines. We also agree with the trial court’s finding that Redmond’s alleged
failure to give “direct answers” on his living arrangements did not make it any more
likely, alone or along with the other evidence, that Redmond’s car contained
contraband or evidence of a crime.
¶ 62 Police are also, in considering the totality of the circumstances, required to
consider facts that tend to defeat or dispel probable cause. See [CITATION]
(“But the essence of all that has been written is that the totality of the circumstances—the whole picture—must be taken into
account.”); [CITATION] (recognizing that facts may be
uncovered that “dispel” an officer’s initial reasonable suspicion). As the appellate
court noted,
“Redmond did not delay pulling over or make any furtive movements, he rolled
down the window when Combs came to the passenger side of the vehicle, and
Combs did not observe any cannabis or related drug paraphernalia in the
vehicle, smoke in the vehicle, or signs of impairment in Redmond.” [CITATION], ¶ 22.
[SEGMENT 6]
¶ 63 In short, Officer Combs’s detection of the strong odor of burnt cannabis coming
from the vehicle certainly established reasonable suspicion to investigate further.
Combs reasonably investigated whether Redmond had violated the Vehicle Code
and whether Redmond was driving impaired. When his further investigation did
not yield any inculpatory facts, the quantity of evidence never advanced on the
- 19 - continuum from reasonable suspicion to probable cause to search. Therefore, the
search was unreasonable and unlawful, and the circuit court properly granted
Redmond’s motion to suppress the evidence in this case.
¶ 64 Finally, the State argues that this court should reverse the circuit court because
Combs acted in good faith when he searched Redmond’s car. The State did not raise
any issue regarding the good faith exception in the circuit court. The State forfeited
the issue a second time by failing to raise it in the appellate court. See [CITATION]. Therefore, we decline to address the State’s
twice-forfeited good faith argument.
¶ 65 III. CONCLUSION
¶ 66 In sum, since January 1, 2020, the use and possession of cannabis is
presumptively lawful, subject to certain restrictions. See 410 ILCS 705/10-5(a)
(West 2020) (“Beginning January 1, 2020 ***.”). We hold that the odor of burnt
cannabis, alone, is insufficient to provide probable cause for police officers to
perform a warrantless search of a vehicle. We also hold that the totality of the facts
and circumstances known to Officer Combs did not provide probable cause to
search Redmond’s vehicle. Therefore, the circuit court correctly granted the motion
suppressing the evidence confiscated from Redmond. Accordingly, we affirm the
appellate court’s decision affirming the trial court’s order suppressing the evidence
seized in the warrantless search of Redmond’s car.
¶ 67 Judgments affirmed.
¶ 68 JUSTICE HOLDER WHITE took no part in the consideration or decision of
this case.
- 20 -
2024 IL App (2d) 230298-U
No. 2-23-0298
Order filed September 16, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
)
v. ) No. 20-CF-352, 20-CM-499, 20-TR-
) 4480-81
)
QUINTON MCKEE, ) Honorable
) Robert P. Pilmer,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE McLAREN delivered the judgment of the court.
Justices Schostok and Mullen concurred in the judgment.
ORDER
¶1 Held: The trial court properly denied defendant’s motion to suppress evidence and
defense counsel at trial was not ineffective.
¶2 Defendant, Quinton McKee, appeals from the trial court’s granting the State’s motion for
a directed finding on his motion to quash arrest and suppress evidence. On appeal, defendant
claims (1) the trial court erred in denying his motion to quash arrest and suppress evidence (2) his
counsel was ineffective for failing to argue in his motion to suppress evidence that the odor of 2024 IL App (2d) 230298-U
cannabis was insufficient to establish probable cause to search defendant. For the following
reasons, we affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with several offenses related to a traffic stop that occurred on
December 6, 2020. Before trial, on March 22, 2023, defendant moved the trial court to quash his
arrest and suppress evidence, arguing the arresting officer lacked probable cause to stop him for
speeding and a seat belt violation. The trial court held a hearing on the motion on May 2, 2023.
During the hearing, the trial court heard testimony from the arresting officer, Andrew Santa, and
viewed video recordings of the traffic stop and arrest. The trial court denied defendant’s motion
and granted the State’s motion for a directed finding that the arresting officer had probable cause
to search the defendant and his vehicle. Defendant filed a timely appeal.
¶5 During the hearing on defendant’s motion to suppress, Sergeant Andrew Santa, an Oswego
police officer, testified that he was assigned general patrol duties on December 6, 2020. While on
patrol, he noticed a silver Mazda automobile he believed was traveling faster than the posted speed
limit. Using pacing with both his patrol vehicle’s speedometer and global positioning system
(GPS) built into the in-car video system, Santa estimated the vehicle was traveling 58-59 miles per
hour in a 45 mile per hour zone. He also observed defendant driving while not wearing a seat belt.
Santa turned on his emergency lights and defendant pulled over on North Merchants Drive, near
the entrance to a McDonalds restaurant.
¶6 Santa testified he approached the vehicle and began a conversation with the driver,
defendant. He introduced himself and explained why he had pulled over defendant. While the
defendant claimed he had just taken off his seat belt, he did acknowledge he was going over the
speed limit.
2024 IL App (2d) 230298-U
¶7 Santa testified that during the conversation he noticed the vehicle “had a pretty strong smell
of fresh cannabis coming from the passenger compartment.” Learning defendant’s drivers’ license
had been suspended, Santa told defendant to exit his vehicle to be searched. When Santa asked if
defendant had anything on him that could harm Santa, defendant revealed he was carrying a
handgun. Santa handcuffed defendant and removed the weapon. Defendant admitted he did not
have a Firearm Owner’s Identification (FOID) card.
¶8 Officers placed defendant under arrest and into the back of the patrol vehicle. A female
officer searched the female passenger from defendant’s vehicle. The passenger was also arrested
when it was discovered she had an outstanding warrant. Officers searched defendant’s vehicle and
discovered 45 grams of cannabis and four oxycontin pills in the center console. The vehicle was
towed from the roadway.
¶9 Santa testified his patrol vehicle was manufactured in 2019 and purchased by the
department in May 2020. He had been the only driver of the patrol car since it was delivered. It
came installed with a WatchGuard video system with a built-in GPS-based speedometer. On cross-
examination, Santa testified the two systems had not been recalibrated, but that both agreed on the
speed of defendant’s vehicle. On redirect, he described using the speed indicated on both systems
to “correlate” the speed of the vehicle.
¶ 10 Following Santa’s testimony, the State moved for a directed finding, arguing that defendant
failed to make a prima facie case to support his motion to suppress.
¶ 11 The trial court found Santa credible regarding the speed of defendant’s vehicle. While the
trial court initially misstated the burden of proof, it clarified that it viewed the evidence in the light
most favorable to the defendant. The trial court found defendant had not met his burden, granted
2024 IL App (2d) 230298-U
the State’s motion for a directed finding, and denied defendant’s motion to suppress evidence and
quash his arrest.
¶ 12 Following a jury trial, defendant was found guilty of unlawful possession of weapon by a
felon (720 ILCS 5/24-1.1(a) (West 2022)), aggravated unlawful use of a weapon (720 ILCS 5/24-
1.6(a)(1)(3)(C) (West 2022)), unlawful possession of a controlled substance (720 ILCS 570/402(c)
(West 2022)), driving on a suspended license (625 ILCS 5/6-303 (West 2022)), and unlawful
transportation of cannabis by a driver (625 ILCS 5/11-502.15 (West 2022)). The court merged
defendant’s convictions of aggravated unlawful use of a weapon and unlawful possession of a
weapon by a felon, and sentenced defendant to two years’ imprisonment. The court also sentenced
defendant to one year of imprisonment for his conviction of possession of a controlled substance,
to be served concurrently. The court imposed fines and costs for defendant’s convictions of driving
on a suspended license and the unlawful transportation of cannabis.
¶ 13 Defendant petitioned for judgment notwithstanding the verdict or a new trial. In the motion,
defendant’s trial counsel argued that Santa lacked probable cause to stop defendant and that the
trial court had erred in granting the directed finding. The trial court denied the motion following a
hearing. This timely appeal followed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, defendant raises two issues. First, he contends that the trial court erred in
denying his suppression motion. Second, in the alternative, defendant argues his trial counsel was
ineffective for failing to allege the smell of cannabis alone was insufficient to establish probable
[SEGMENT 7]
cause to search defendant.
¶ 16 A. Probable Cause for Traffic Stop
2024 IL App (2d) 230298-U
¶ 17 Defendant claims the trial court erred when it denied his motion to suppress evidence
because Officer Santa lacked probable cause for stopping him for speeding and a seatbelt violation.
The trial court heard the officer testify and watched the video from the traffic stop and arrest. The
video includes audio of defendant stating he “probably was going a little fast.” In reviewing the
evidence, the trial court found Officer Santa credible regarding his testimony that defendant was
exceeding the posted speed limit. Upon our review, we cannot conclude that this finding was
unreasonable, arbitrary, or not based on the evidence presented during the hearing.
¶ 18 The defendant bears the burden of proof during a hearing on their motion to suppress
evidence. [CITATION]. “In order to carry that burden, a defendant must make a prima facie case that the evidence at issue was obtained by or through an
illegal search or seizure.” Id. “If a defendant makes a prima facie case, the State has the burden of
going forward with evidence to counter the defendant’s prima facie case.” [CITATION]. The burden of proof ultimately remains with the defendant. [CITATION]. The findings of the trial court will be overturned if they are against the
manifest weight of the evidence. [CITATION]. A finding is against the
manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding
is unreasonable, arbitrary, or not based on the evidence presented. Id.
¶ 19 A temporary detention of a motorist during a traffic stop by the police invokes the “seizure”
of “persons” within the meaning of the Fourth Amendment. U.S. Const., amend. IV; [CITATION]. Traffic stops are permitted when it is not
“unreasonable.” [CITATION]. A traffic stop by a police
officer is reasonable when the officer has a reasonable suspicion the motorist violated a traffic law.
[CITATION].
2024 IL App (2d) 230298-U
While a mere “hunch” is insufficient, “the level of suspicion the standard requires is ‘considerably
less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is
necessary for probable cause.” [CITATION]; see also [CITATION]. The subjective beliefs of the police officer are “largely irrelevant to the probable
cause inquiry.” [CITATION].
¶ 20 Defendant cites several cases which support that a conviction for speeding requires
sufficient proof to the accuracy of radar devices, stopwatches, and speedometers. [CITATION]. As the State correctly notes, the
immediate matter involves probable cause for the traffic stop. The standard of proof for a
conviction, beyond a reasonable doubt, is considerably higher than the standard of proof for
probable cause. The probable cause standard involves probabilities and “are not technical; they are
factual and practical considerations of everyday life in which reasonable and prudent men, not
legal technicians act.” [CITATION]; see also [CITATION].
¶ 21 Defendant presumes, without citation to authority, that modern electronic speedometers
and GPS-based systems must be certified and continually recalibrated to be deemed accurate. He
claims that no proof was presented during the hearing to show the accuracy of the speed-tracking
devices. However, defendant conveniently ignores that two, unconnected and unrelated systems
were used to gauge the speed of his vehicle. One of those systems used global positioning system
satellites to track the speed of the police car and recorded it digitally in the video reviewed by the
trial court. The accuracy of a speedometer is a question for the fact finder to resolve. [CITATION]. We will not substitute our judgment for the trier of fact when it determined that
2024 IL App (2d) 230298-U
the speed indicated by both a speedometer and a GPS unit provided Santa with a probable cause
to stop defendant for speeding. Therefore, the trial court properly granted the State’s motion for a
directed finding and denied defendant’s motion to suppress.
¶ 22 Next, defendant argues that the trial court erred in finding that Santa had probable cause to
initiate a traffic stop due to him not wearing a seat belt. Because we have already determined that
Santa had probable cause to initiate the traffic stop based on a speeding violation, we need not
address this argument.
¶ 23 B. Ineffective Assistance of Counsel
¶ 24 Defendant argues he was denied effective assistance of counsel because his trial counsel
failed to argue the police could not have relied on the smell of cannabis as a legitimate probable
cause for searching his vehicle. Noting recent opinions from the Illinois Appellate Court, Third
District, defendant maintains that recent changes to the legality of cannabis makes the odor of
burnt cannabis alone insufficient for probable cause. See [CITATION]. He claims his trial counsel’s
failure to include this argument in the suppression motion equates to ineffective assistance of
counsel.
¶ 25 The right to counsel is, in effect, the right to the effective assistance of counsel. [CITATION]. “The benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having produced
a just result.” [CITATION]. To succeed in his claim,
defendant must show two things: that the performance of his counsel was deficient and that he was
prejudiced by such deficiency. Id. at 694. In [CITATION], our supreme court adopted
2024 IL App (2d) 230298-U
Strickland and noted specifically that a court can dispose of a claim of ineffective assistance of
counsel for a lack of sufficient prejudice without determining if such counsel was deficient. [CITATION] Even if a trial strategy did not result in an outcome
favorable to the defendant, we “must make every effort to eliminate ‘the distorting effects of
hindsight.’ ” [CITATION] (quoting Strickland, 466 U.S. at 689).
“There is a strong presumption that counsel’ conduct falls within the wide range of reasonable
professional assistance[.]” [CITATION] (citing [CITATION]). The decision whether to file a motion to suppress is generally
a matter of trial strategy and a court will not find counsel ineffective for “failing to file a meritless
motion to suppress.” [CITATION]; see also [CITATION].
¶ 26 As discussed above, the fourth amendment of the United States Constitution protects the
“right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
search and seizures.” U.S. Const., amend. IV. This constitutional guarantee applies to the states
through the due process clause of the fourteenth amendment (U.S. Const., amend. XIV). [CITATION] Reasonableness is the central requirement of the fourth
amendment. [CITATION] As such, the interest in allowing
discretion in enforcing the law for the community’s protection must be balanced against
safeguarding a citizens’ privacy. [CITATION]
¶ 27 Pertinent here, the automobile exception provides that, due to their transient nature,
automobiles may be searched so long as “probable cause exists to believe the automobile contains
evidence of criminal activity subject to seizure.” [CITATION]; see also [CITATION]. Probable cause to search a vehicle
2024 IL App (2d) 230298-U
exists where “the facts and circumstances known to the officer at the time would warrant a
reasonable person to believe there is a reasonable probability that the automobile contains
contraband or evidence of criminal activity.” [CITATION], ¶ 10.
Probable cause requires probability rather than certainty. [CITATION], ¶ 24.
Therefore, “probable cause does not require an officer to rule out any innocent explanations for
suspicious facts.” Id. Indeed, it is not necessary that the belief that contraband or evidence is
present be “more likely true than false.” [CITATION].
¶ 28 We recently addressed the legalization of cannabis in Illinois and its effect on the smell of
cannabis as potential probable cause for the search of a vehicle. This court noted that “[w]hile it is
true that the possession and use of cannabis is now legal in many circumstances, it is still a crime
in some situations.” [CITATION], ¶ 31; see also [CITATION]. The laws of this state make the possession and use of cannabis in an automobile
illegal in some situations, so “it follows that the smell of cannabis in a car can still form the basis
for probable cause. Id. at ¶ 32; see also [CITATION].
“While Illinois has legalized marijuana for recreational use in some circumstances, *** the state
retains laws restricting the packaging of and use of marijuana.” [CITATION].
¶ 29 Defendant notes Santa described the odor of “fresh” cannabis. It could be argued that
“fresh” cannabis could be either “raw” or “burnt.” In the immediate case, however, both odors
could have been emanating from the defendant’s car. After all, defendant admitted to Santa during
the traffic stop that he had recently smoked cannabis and he had over 40 grams of raw cannabis in
a plastic bag in the center console. A plastic bag is unlikely to be the “odor-proof” container
required under Illinois law. 625 ILCS § 5/11-502.1(c) (West 2022); see also [CITATION].
[SEGMENT 8]
2024 IL App (2d) 230298-U
¶ 30 Since the laws of Illinois make the possession and use of cannabis a crime in certain
situations, it naturally follows that the smell of cannabis can still form the basis for probable cause.
[CITATION], ¶ 32. Therefore, we determined that defendant was not
prejudiced by counsel’s failure to make an argument that was likely to fail. Defendant has not
overcome the strong presumption that his counsel’s conduct falls within the range of reasonable
professional assistance.
¶ 31 We also note that, even if we were to agree with defendant that his counsel should have
argued that the smell of cannabis alone was insufficient to form probable cause, the inevitable-
discovery exception would have allowed the admission of items recovered during the search. See
[CITATION], ¶ 48.
“This exception permits evidence, that would otherwise be inadmissible at trial, to be admitted
where the State can show that such evidence ‘would inevitably have been discovered without
reference to the police error or misconduct.’ ” [CITATION].
¶ 32 As the State argues, defendant’s vehicle would have inevitably been subject to an inventory
search before it was impounded. An inventory search is a “judicially created exception to the
warrant requirement of the fourth amendment.” [CITATION]; see
also [CITATION]. A valid warrantless inventory search of a vehicle must
meet three requirements: (1) the original impounding of the vehicle must be lawful ([CITATION]); (2)
the purpose of the inventory search must be to protect the owner's property while it is in police
custody, to protect the police from claims of lost, stolen, or vandalized property, and to guard the
police from potential danger (Id.); and (3) the good-faith
inventory search must be conducted pursuant to reasonable, standardized police procedures and
- 10 - 2024 IL App (2d) 230298-U
not solely for the purpose of investigating criminal conduct ([CITATION]).
¶ 33 In the immediate matter, defendant was pulled over for speeding and parked in the entry to
a parking lot. Defendant was an armed felon driving on a suspended drivers’ license. His only
passenger had an outstanding warrant for her arrest. From the moment he was pulled over for
speeding, defendant was going to be arrested, his vehicle was going to be towed, and the arresting
officers were going to conduct an inventory search. During the search, Santa explained to
defendant he was conducting the search because the car was being towed and confirmed with him
the items of value he inventoried in the car.
¶ 34 Our review of the record demonstrates that the alleged errors of the defendant’s trial
counsel would not have altered the result in this case. See [CITATION].
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.
¶ 37 Affirmed.
- 11 -
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 23-1708 & 23-1721
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PRENTISS JACKSON,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
No. 2:10-cr-20043-JES-JEH-1 — James E. Shadid, Judge, and
No. 2:22-cr-20044-CSB-EIL-1 — Colin S. Bruce, Judge.
____________________
ARGUED MARCH 28, 2024 — DECIDED JUNE 4, 2024
____________________
Before BRENNAN, SCUDDER, and LEE, Circuit Judges.
BRENNAN, Circuit Judge. An Urbana, Illinois, police officer
pulled over a car just after midnight because its head and tail-
lights were not lit. During the traffic stop, the officer smelled
unburnt marijuana. He asked the driver, Prentiss Jackson, to
exit the car and told Jackson he would search him and the 2 Nos. 23-1708 & 23-1721
vehicle. Soon after leaving the car, Jackson ran. While fleeing,
a gun fell from his waistband.
Jackson was indicted for possessing a firearm as a felon.
He moved to suppress evidence of the gun, arguing it was the
product of an unlawful search. The district court denied Jack-
son’s motion. He conditionally pleaded guilty, was convicted,
and now appeals the denial of his motion to suppress. We af-
firm.
I
The facts below come from testimony taken and the officer
bodycam video presented at the evidentiary hearing held on
Jackson’s motion to suppress.
Shortly after midnight on June 11, 2022, Prentiss Jackson
and a passenger drove through Urbana, Illinois, with unlit
head and taillights. As a result, an Urbana police officer con-
ducted a traffic stop. The officer asked for Jackson’s driver’s
license and registration. Jackson did not have his license but
produced another form of identification.
The officer smelled the odor of unburnt marijuana ema-
nating from the car. He knew the odor came from inside the
car, as he had not smelled it before he approached the vehicle.
During their conversation about the license and registration,
the officer told Jackson he smelled “a little bit of weed” and
asked if Jackson and the passenger had been smoking. Jack-
son said he had, but that was earlier in the day, and he had
not smoked inside the car.
Through the officer’s training, he knew the most common
signs of impairment for driving under the influence were the
odor of marijuana or alcohol and speech issues. He was also
taught to look for traffic violations. Concerned that Jackson Nos. 23-1708 & 23-1721
might be driving under the influence because of the head and
taillight violation, the odor of marijuana, and Jackson’s ad-
mission that he had smoked earlier, the officer asked Jackson
whether he was “safe to drive home.” Jackson said he was.
His speech was not slurred during the interaction, and his re-
sponses were appropriate.
After questioning Jackson about the marijuana smell, the
officer asked Jackson to wait for a moment so he could write
a warning, to turn the car off, and to hand over the keys. Jack-
son complied. The officer said he would search Jackson and
the car. He asked if there were “guns, knives, drugs, [or]
bombs” in the car and told Jackson he could “cut breaks and
warnings” if Jackson and the passenger were “honest with
[him] up front.” Jackson told him none of those items were in
the car. The officer then asked Jackson to get out and walk to
the back of the car, cautioning Jackson not to reach for his
waistband.
Before Jackson exited the car, the passenger asked why the
officer planned to search the car. The officer told her he could
smell marijuana and explained the potential violation of Illi-
nois law. He was ready to write up a warning for the mariju-
ana violation, the officer told them, but he also said he was
prepared to make an arrest if Jackson and the passenger were
uncooperative and refused to get out of the car and permit a
“probable cause” search.
In response to this line of conversation, Jackson acknowl-
edged he had some “weed” and handed the officer a tied-off
plastic baggie that appeared to contain about two grams of
unburnt marijuana. The officer explained “having weed like
th[at was] illegal inside the confines of a vehicle” under Illi-
nois law. 4 Nos. 23-1708 & 23-1721
The officer again asked Jackson to step out of the car. Jack-
son complied and walked calmly to the back of the car. The
officer intended to pat Jackson down and conduct a field so-
briety test. Jackson placed his hands on the trunk. The officer
turned to put his flashlight in its holster, and Jackson ran. A
few seconds into his flight, Jackson tripped, and a gun fell
from his waistband. The officer caught up with Jackson, re-
strained him so Jackson could not reach the firearm, and ar-
rested him.
Jackson moved to suppress evidence of the gun, arguing
it was the product of an unlawful search and seizure. The dis-
trict court held a suppression hearing at which the officer tes-
tified as the only witness, and the government presented his
bodycam video. The facts and testimony at the hearing
tracked the video evidence.
The district court denied Jackson’s motion. After the
court’s decision, Jackson entered a conditional guilty plea in
case no. 23-1721, reserving his right to appeal the district
court’s denial of his motion to suppress. See FED. R. CRIM. P.
11(b). The district court sentenced Jackson to 72 months’ im-
prisonment. In case no. 23-1708, the district court revoked
Jackson’s supervised release for, among other things, unlaw-
fully possessing a firearm.
II
Jackson now appeals the denial of his motion to suppress
the gun. We review the district court’s factual findings “for
clear error, while legal conclusions and mixed questions of
law and fact are reviewed de novo.” [CITATION] “A factual finding is clearly er-
roneous only if, after considering all the evidence, [the court] Nos. 23-1708 & 23-1721
[SEGMENT 9]
cannot avoid or ignore a definite and firm conviction that a
mistake has been made.” Id. (cleaned up).
This court gives “special deference to credibility determi-
nations and will uphold them unless completely without
foundation in the record.” [CITATION] (cleaned up). That is in part because
the factual determinations underlying a district court’s credi-
bility determinations are uniquely within the district court’s
competence, and this court reviews those findings for clear
error. See [CITATION]
When applying the Fourth Amendment to law enforce-
ment action, the Supreme Court has repeatedly confirmed
that “the ultimate touchstone of the Fourth Amendment” in
evaluating law enforcement action is “reasonableness.”
[CITATION] “‘Reasonable-
ness, in turn, is measured in objective terms by examining the
totality of the circumstances.’” [CITATION]
Jackson contends that evidence of the firearm should have
been suppressed because the officer did not have probable
cause to search him or the car. He argues that the officer relied
on the smell of unburnt marijuana, which he contends does
not provide probable cause to search a vehicle under Illinois
law.
“Warrantless searches are per se unreasonable under the
Fourth Amendment, subject to only certain exceptions.”
[CITATION] Relevant here is the ====== Anonymized Part of a Court Ruling ======
6 Nos. 23-1708 & 23-1721
automobile exception, which allows authorities to search a car
without a warrant if they have probable cause. See [CITATION]. “Probable cause to search a vehicle exists
when, based on the totality of the circumstances, ‘there is a
fair probability that contraband or evidence of a crime will be
found in a particular place.’” [CITATION] (quoting [CITATION]);
see [CITATION].
The district court correctly ruled that evidence of the fire-
arm should not have been suppressed. The officer had proba-
ble cause to search Jackson and the vehicle, whether based on
the totality of the circumstances or because of the smell of un-
burnt marijuana alone.
A
Jackson is incorrect that the only evidence in support of
probable cause when the officer announced an intent to
search and ordered him out of the vehicle was the odor of un-
burnt marijuana. The totality of the circumstances provided
probable cause to search Jackson and the vehicle.
Consider the circumstances of the traffic stop. The officer
pulled Jackson over because he had been driving in the dark
with unlit head and taillights, a state law violation, see 625 ILL.
COMP. STAT. ANN. 5/12-201. After pulling over the car, the of-
ficer asked for license and registration. But Jackson did not
have his license, another state law violation. See id. at 5/6-101
(prohibiting driving without a valid license in Illinois). Nos. 23-1708 & 23-1721
At any point after this lawful stop, the officer could have
ordered Jackson out of the vehicle, even if the officer “ha[d]
no reason to suspect foul play.” [CITATION]. But the officer did suspect further is-
sues—he smelled the odor of unburnt marijuana coming from
the car. Although possession of marijuana in certain amounts
is legal in Illinois, the smell of unburnt marijuana coming
from the car signaled that Jackson had marijuana in the car in
an improper container, another violation of Illinois’s law. See
id. at 5/11-502.15(b), (c).
The circumstances also could suggest that Jackson was
driving while impaired. See id. at 5/11-501. When questioned
about the smell, Jackson admitted to smoking marijuana ear-
lier. And although Jackson responded to questions and did
not seem impaired to the officer, that officer knew that failure
to follow the simplest of traffic laws—like turning on your
lights just after midnight—could indicate driving under the
influence. Cf. [CITATION] (citing [CITATION]) (holding where a driver admits to drinking alcohol
and an officer sees an open alcohol container in the car, the
officer had probable cause to search the driver and car). Thus,
a search of Jackson and the car was warranted as possibly
providing further evidence of criminal conduct.
Jackson responds that the officer’s credibility should be
questioned because he failed to conduct field sobriety tests or
note any suspicion of impairment in his police report. But
Jackson’s speculation does not overcome the officer’s credible
testimony that he intended to perform such a test. See, e.g.,
[CITATION] (“Be-
cause the resolution of a motion to suppress is a fact-specific 8 Nos. 23-1708 & 23-1721
inquiry, we give deference to credibility determinations of the
district court, who had the opportunity to listen to testimony
and observe the witnesses at the suppression hearing.”). In
any event, the officer’s subjective intent does not control the
analysis. See, e.g., [CITATION], 519 U.S. at 38 (“As we made clear
in [CITATION], ‘the fact that [an] officer does not have the state of
mind which is hypothecated by the reasons which provide the
legal justification for the officer’s action does not invalidate
the action taken as long as the circumstances, viewed objec-
tively, justify that action.’”) (quoting [CITATION]). see also [CITATION].
Jackson further argues it was impossible for the officer to
smell two grams of unburnt marijuana. But Jackson provides
no evidence that the officer lied about smelling the marijuana.
To rebut the officer’s testimony and the district court’s
credibility finding, Jackson must show that the district court
clearly erred in determining that the officer smelled unburnt
marijuana and was able to differentiate that odor from burnt
marijuana. [CITATION]. And he must explain why
the district court’s implicit determination that the officer’s tes-
timony was credible—a determination this court upholds
“unless completely without foundation in the record”—
should be reversed. [CITATION]. Jackson has done
neither. The officer’s testimony is supported by Jackson turn-
ing over a baggie of unburnt marijuana during the traffic stop.
Under the totality of these circumstances, the officer had
probable cause to search Jackson and the car.
Jackson offers other arguments, but they are not persua-
sive. He says a similarity between the odors of unburnt mari-
juana and legal hemp undercuts the finding of probable
cause. This argument was not raised below and is thus Nos. 23-1708 & 23-1721
waived. See [CITATION]; see also [CITATION] (“‘We have repeatedly held that a party
that fails to press an argument before the district court waives
the right to present that argument on appeal.’” (citing [CITATION])).
He also offers additional scenarios that he says might
cause a car to emit an odor of unburnt marijuana. Yet, law
enforcement does not need to rule out every innocent expla-
nation for probable cause to be established. As the Supreme
Court has explained, “probable cause requires only a proba-
bility or substantial chance of criminal activity, not an actual
showing of such activity.” [CITATION] (internal
citations omitted). “By hypothesis, therefore, innocent behav-
ior frequently will provide the basis for a showing of probable
cause; to require otherwise would be to sub silentio impose a
drastically more rigorous definition of probable cause than
the security of our citizens demands.” Id.
B
Irrespective of the totality of the circumstances, Jackson
argues that only the smell of unburnt marijuana supported
the probable cause determination. Because Illinois has legal-
ized marijuana for adult recreational use, he contends that
smell alone cannot provide probable cause for a search or sei-
zure. We consider this argument in the context of current law.
The smell of marijuana alone justifies a Fourth Amend-
ment search or seizure. See [CITATION] (noting the
smell of “burnt marijuana” provides probable cause to search
an entire vehicle during a traffic stop); see also [CITATION] (holding the smell of
“fresh marijuana” coming off a person supports probable
====== End of Court Ruling ====== 10 Nos. 23-1708 & 23-1721
cause to arrest that person); [CITATION] (“A police officer who smells mariju-
ana coming from a car has probable cause to search that car.”
(citing [CITATION])). Further, the possession of marijuana is illegal under
federal law. See 21 U.S.C. §§ 812 (c)(10), 844. Jackson responds
that the government failed to raise that point in the district
court and thus waived it. The federal marijuana prohibition
was mentioned twice below: (1) the district court and defense
counsel referenced a potential difference between the state
and federal regulations on marijuana in conversation, and (2)
the prosecutor noted in argument on the suppression motion
the court’s point that marijuana “remains something that can
give rise to probable cause.”
Even if we conclude that the government waived this
point, Jackson’s case is not impacted by it. The officer still had
probable cause to search Jackson and the car. While Illinois
has legalized marijuana for recreational use in some circum-
stances, as the officer said to Jackson and the passenger dur-
ing the traffic stop, the state retains laws restricting the pack-
aging of and use of marijuana. See, e.g., 625 ILL. COMP. STAT.
ANN. 5/11-501 (prohibiting using marijuana to the point of in-
toxication before or while driving, i.e., driving under the in-
fluence); id. at 5/11-502.15(b), (c) (prohibiting transporting
marijuana in certain containers in a vehicle). 1 Jackson did not
comply with that requirement, so the smell of unburnt mari-
juana provides probable cause for a violation of that state law.
[SEGMENT 10]
1 Illinois statutes and cases use the term “cannabis,” the equivalent of
“marijuana” under federal law. This opinion uses the term “marijuana”
throughout, except when quoting Illinois cases. Nos. 23-1708 & 23-1721
Interpretation of those state laws by Illinois courts sup-
ports this reading. In [CITATION], the Fourth District of
the Illinois Appellate Court held that “an officer who smells
cannabis in a vehicle he has just stopped is almost certain to
discover a violation of the [Illinois] Vehicle Code because the
law clearly states that when cannabis is transported in a pri-
vate vehicle, the cannabis must be stored in a sealed, odor-proof
container—in other words, the cannabis should be undetect-
able by smell by a police officer.” [CITATION] (emphasis in original). The “smell of raw can-
nabis, without any corroborating factors, is [thus] sufficient to
establish probable cause to search a person’s vehicle” under
state law. Id.; see also [CITATION] (holding that
the odor of unburnt cannabis constituted probable cause for
search of vehicle, as reasonable person in officer’s position
would believe “someone in the vehicle was at least transport-
ing cannabis in a manner violating the Vehicle Code”); [CITATION] (stating
there was sufficient probable cause for vehicle search based
on police-trained canine’s positive alert, where canine trained
to alert to drugs including marijuana). 2
The Second District of the Illinois Appellate Court has ar-
rived at a similar conclusion. E.g., [CITATION] (“the
smell of cannabis in a car still forms the basis for probable
cause” post-legalization); [CITATION] (“the odor of raw cannabis emanating
2 This opinion uses the term “unburnt” to refer to “raw” marijuana.
We read the terms to mean the same thing. 12 Nos. 23-1708 & 23-1721
from the vehicle when [the officer] first approached gave rise
to probable cause to search the vehicle”).
One Illinois case, heavily relied on by Jackson, is not in ac-
cord with other Illinois decisions. [CITATION]. In [CITATION], the Third Dis-
trict of the Illinois Appellate Court held that “the smell
of … burnt cannabis, without any corroborating factors, is not
enough to establish probable cause to search the vehicle.” Id.
[CITATION] stated that Illinois’s legalization of marijuana invali-
dated the Illinois Supreme Court’s decision in [CITATION]. See [CITATION]. In
[CITATION], the Illinois Supreme Court held that “distinctive odors”
like burning marijuana “can be persuasive evidence of prob-
able cause” without additional corroborating evidence. [CITATION].
Even if [CITATION] is credited—notwithstanding [CITATION] and
[CITATION]—it would not compel the conclusion that there was no
probable cause here. [CITATION] is distinguishable, and we do
not defer to Illinois courts on what constitutes probable cause
under the Fourth Amendment. The conclusion in [CITATION]
that probable cause did not exist was limited to the officer
smelling burnt marijuana. The defendant in [CITATION] told law
enforcement that “someone (he did not state that it was him-
self) had smoked in the vehicle ‘a long time ago[.]’” [CITATION]. “There was no reason for the officer to think
that the defendant was currently smoking cannabis in the
car.” Id. And “the smell of burnt cannabis may have lingered
in the defendant’s car or on his clothing.” Id. The Third Dis-
trict’s similar decision in [CITATION], also centered on
the smell of burnt marijuana. [CITATION],
appeal allowed, [CITATION]. And in [CITATION], the Nos. 23-1708 & 23-1721
court stated, “there was no odor of raw cannabis nor any
other factor indicative of improperly packaged cannabis or an
unlawful amount of it in the vehicle.” [CITATION] at 1181.
The smell of unburnt marijuana outside a sealed container
independently supplied probable cause and thus supported
the direction for Jackson to step out of the car for the search.
III
The central issue in this case is the legality of the officer
ordering Jackson out of the car for a search. [CITATION] tells us
that after a lawful stop, an officer can order occupants out of
a car, see [CITATION] at 111, and the totality of circumstances here
supported probable cause for a search. In any event, the smell
of unburnt marijuana provided probable cause. After exiting
the vehicle, Jackson chose to run, where a firearm fell from his
pants. The district court correctly concluded that evidence of
the gun need not be suppressed.
For these reasons, we AFFIRM the district court’s denial of
Jackson’s motion to suppress.
2024 IL App (2d) 230226-U
No. 2-23-0226
Order filed April 18, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 20-CF-1689
)
DARIELN A. MORAN SANCHEZ, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Presiding Justice McLaren and Justice Kennedy concurred in the judgment.
ORDER
¶1 Held: We agree with appellate counsel that there is no potentially meritorious basis for
appeal. Therefore, we grant counsel’s motion to withdraw, and we affirm the trial
court.
¶2 Defendant, Darieln A. Moran Sanchez, appeals from the judgment of the circuit court of
Kane County finding him guilty of drug offenses. The Office of the State Appellate Defender has
moved to withdraw, claiming that defendant has no potentially meritorious basis for appeal. We
grant the appellate defender’s motion to withdraw, and we affirm.
¶3 I. BACKGROUND 2024 IL App (2d) 230226-U
¶4 Following a bench trial, defendant was found guilty of one count of unlawful possession
with intent to deliver 400 grams or more, but less than 900 grams, of a substance containing
methamphetamine (720 ILCS 646/55(a)(2)(E) (West 2020)) and one count of unlawful possession
with intent to deliver 900 grams or more of a substance containing cocaine (720 ILCS
570/401(a)(2)(D) (West 2020)).
¶5 At trial, the State presented evidence that on September 5, 2020, a DEA agent was
conducting surveillance on defendant. He observed defendant, Nancy Navejas, and two children
leave a hotel in Carol Stream and drive off in a white Ford Explorer. The agent followed the
vehicle onto Interstate 90, where other law enforcement officers pulled it over. The vehicle was
searched, and a written lease for residential property was found in the glove compartment. The
lease named Felipe Ocampo as landlord and defendant and Navejas as tenants. The glove
compartment also contained a utility bill in defendant’s and Navejas’s names for the leased
property. A brick-shaped object wrapped in duct tape and a sealed baggie containing what
appeared to be methamphetamine were recovered from under the third-row seat, which had been
folded down to increase the storage capacity of the rear cargo compartment. It was stipulated that
the brick contained 1005 grams of a substance containing cocaine and that the sealed baggie
contained 446.8 grams of a substance containing methamphetamine.
¶6 Roberto Gutierrez testified that on September 5, 2020, he was a sergeant with the Illinois
State Police and was assigned to the interdiction unit. He was raised in a household where both
parents spoke Spanish, and he was fluent in that language, having spoken it his whole life. Over
the past 20 years in law enforcement, he conducted hundreds of Spanish interviews with suspects
and witnesses. Gutierrez testified that he interviewed defendant in Spanish in the presence of other
law enforcement officers. Defendant admitted that he was aware that there was methamphetamine
2024 IL App (2d) 230226-U
and cocaine in the Explorer. Defendant also indicated that he had paid someone for the use of the
Explorer. Defendant said that he had met with Ocampo, who put the drugs in the vehicle.
Defendant planned to take the drugs to his home in Minnesota, where someone would retrieve
them and pay defendant $1500. During the interview, Gutierrez submitted written questions to
defendant in Spanish, and defendant provided written answers in Spanish. Gutierrez translated the
questions and answers, which contained admissions similar to those defendant made during the
[SEGMENT 11]
interview. Defendant also prepared a brief written statement in Spanish.
¶7 Derek Cowan testified that he was a master sergeant with the Illinois State Police and was
director of the North Central Narcotics Task Force. Cowan joined the task force in 2014. He had
received training in narcotics investigations and had participated in over 1000 such investigations
during his career. Cowan testified that he was familiar with the street value of various drugs. The
trial court qualified Cowan as “an expert in the area of narcotics detection and transactions.”
Cowan testified that, in his opinion, the drugs recovered from the Ford Explorer were packaged
for distribution.
¶8 Based on this evidence, the trial court found defendant guilty of the offenses described
above. The court sentenced defendant to concurrent prison terms of 17 years for possession of
cocaine with intent to deliver and 12 years for possession of methamphetamine with intent to
deliver. Defendant filed a timely notice of appeal, and the trial court appointed the appellate
defender to represent him.
¶9 II. ANALYSIS
¶ 10 Per [CITATION], and [CITATION],
the appellate defender moves to withdraw as counsel. In her motion, counsel states that she read
the record and found no issue of arguable merit. Counsel further states that she advised defendant
2024 IL App (2d) 230226-U
of her opinion. Counsel supports her motion with a memorandum of law providing a statement of
facts and an argument as to why this appeal presents no issue of arguable merit. We advised
defendant that he had 30 days to respond to the motion. That time has passed, and defendant has
not responded.
¶ 11 Counsel indicates that she considered the following five issues for appeal: (1) whether
defendant validly waived his right to a jury trial, (2) whether the State laid a proper foundation for
Cowan’s testimony as an expert in the field of narcotics detection and transactions, (3) whether
the trial court erred in accepting Gutierrez’s testimony concerning his ability to translate
defendant’s inculpatory statements, (4) whether the evidence was sufficient to sustain defendant’s
convictions, and (5) whether the trial court abused its discretion in sentencing defendant to
concurrent prison terms of 12 years for possession of methamphetamine with intent to deliver and
17 years for possession of cocaine with intent to deliver. However, counsel concludes that none
of these issues has arguable merit. We agree.
¶ 12 First, we consider whether defendant validly waived his right to a jury trial. The controlling
legal principles are as follows:
“ ‘The right to a trial by jury is a fundamental right guaranteed by our federal and
state constitutions.’ [CITATION] Nevertheless, a defendant can waive his right to a jury
trial, but for a waiver to be valid, it must be knowingly and voluntarily made. [CITATION]
Under section 115-1 of the Code of Criminal Procedure of 1963, a jury waiver must be in
writing. [CITATION]
The trial court has a duty to ensure that the defendant waived his right to a jury trial
‘expressly and understandingly.’ [CITATION] ‘However, a trial court need not give any
specific admonition or advice for a defendant to make an effective jury waiver.’ [CITATION]
2024 IL App (2d) 230226-U
‘Whether a jury waiver is valid cannot be determined by application of a precise formula,
but rather turns on the particular facts and circumstances of each case.’ [CITATION.] The
statutory requirement for a written jury waiver does not ‘define or give substance to the
constitutional right to choose whether to have a jury trial. Rather, a written jury waiver
merely memorializes the defendant’s decision, allowing a court to review the record to
ascertain whether a defendant’s jury waiver was made understandingly.’ [CITATION.]”
[CITATION], ¶¶ 106-07.
¶ 13 Here, defendant signed a jury waiver written in Spanish. At a hearing at which he had the
assistance of an interpreter, defendant confirmed that he understood the difference between a
bench trial and a jury trial and that he was giving up the right to have a jury determine his guilt or
innocence. He also confirmed that he was not under the effects of drugs or alcohol and that no
threats or promises had been made to induce him to waive his right to a jury. Therefore, we find
no arguably meritorious basis for challenging defendant’s jury waiver.
¶ 14 Second, we consider whether the State laid a proper foundation for Cowan’s testimony as
an expert in narcotics detection and transactions. As we have recently observed:
“Generally, a witness may testify as an expert if he or she possesses ‘experience and
qualifications [that] afford him [or her] knowledge that is not common to laypersons.’
[CITATION.] *** There is no ‘predetermined formula’ specifying how an expert acquires
the knowledge that renders him or her an expert. (Internal quotation marks omitted.)
[CITATION.] Such knowledge may be acquired through study, practical experience, training,
education, or research. [CITATION.] Any weakness in the basis of an expert’s opinion goes
to the weight of the testimony; it should not affect its admissibility if the facts, data, or
opinions are reasonably relied upon by experts in the relevant field. [CITATION.] The
2024 IL App (2d) 230226-U
decision to admit expert testimony is a matter within the sound discretion of the trial court
and will not be reversed absent an abuse of that discretion. [Citation.] An abuse of
discretion occurs only if no reasonable person could agree with the trial court. [Citation.]”
[CITATION], ¶ 34.
¶ 15 Cowan’s testimony established that he had extensive training and experience in narcotics
investigations. There is no arguably meritorious basis for challenging the trial court’s decision to
qualify him as an expert witness.
¶ 16 Third, we consider whether the trial court erred in accepting Gutierrez’s testimony
concerning his ability to translate defendant’s inculpatory statements. We note that an individual
is qualified to serve as an interpreter for a defendant at trial if the defendant can understand that
individual and the individual can understand the defendant. 725 ILCS 140/1 (West 2022). We
see no reason why a more stringent standard should apply to a witness’s translation of a defendant’s
out-of-court statements. Gutierrez testified that he was fluent in Spanish, having spoken it his
whole life, and had conducted hundreds of interviews in Spanish. He testified that he had no
trouble understanding defendant. Likewise, defendant’s written answers to Gutierrez’s written
questions suggest that defendant had no difficulty understanding Gutierrez. Accordingly, there is
no potentially meritorious basis for arguing that the trial court erred in accepting Gutierrez’s
testimony about his ability to translate defendant’s statements.
¶ 17 Fourth, we consider whether the evidence was sufficient to sustain defendant’s convictions.
In reviewing a challenge to the sufficiency of the evidence in a criminal proceeding, “ ‘the relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’ ” (Emphasis in original.) [CITATION] (quoting Jackson
2024 IL App (2d) 230226-U
v. Virginia, 443 U.S. 307, 319 (1979)). Moreover, “a reviewing court will not substitute its
judgment for that of the trier of fact on issues involving the weight of evidence or the credibility
of witnesses.” [CITATION]. Here, the State was
required to prove that defendant (1) knowingly possessed (2) with intent to deliver (3) 400 grams
or more, but less than 900 grams, of a substance containing methamphetamine and 900 grams or
more of a substance containing cocaine. See 720 ILCS 646/55(a)(2)(E) (West 2020); 720 ILCS
570/401(a)(2)(D) (West 2020).
¶ 18 It is well established that
“[c]ontrolled substances discovered on premises, or in a vehicle, under the defendant’s
control and in a place where he could have been, or should have been, aware of them give
rise to an inference of knowledge and possession by [the] defendant which may be
sufficient to sustain a conviction for unlawful possession of controlled substances.” [CITATION].
Here, substances stipulated to be methamphetamine and cocaine were found under defendant’s
control, beneath a seat that had been folded down to enlarge the rear cargo compartment. Based
on the location of the illicit substances, defendant should have been aware of their presence in the
vehicle. In any event, defendant admitted that he knew that Ocampo put the drugs in the vehicle.
Moreover, not only did Cowan testify that the drugs were packaged to distribute, but defendant
admitted that he planned to take the drugs to Minnesota, where someone would retrieve them and
pay him $1500. This was sufficient evidence of intent to deliver. Finally, the quantity of the drugs
was stipulated: the methamphetamine weighed 446.8 grams, and the cocaine weighed 1005 grams.
Thus, there is no arguably meritorious basis for challenging the sufficiency of the evidence.
2024 IL App (2d) 230226-U
[SEGMENT 12]
¶ 19 Fifth, we consider whether the trial court abused its discretion in sentencing defendant to
concurrent prison terms of 12 years for possession of methamphetamine with intent to deliver and
17 years for possession of cocaine with intent to deliver. As we have recently observed:
“We review for an abuse of discretion a trial court’s sentencing decision. [Citation.]
The sentencing court has wide latitude in imposing a sentence, so long as it does not ignore
relevant mitigating factors or consider improper aggravating factors. [Citation.] We
accord ‘great deference to a sentence within the appropriate sentencing range.’ [Citation.]
However, we will find that a court abused its discretion, even if the sentence imposed is
within the statutory range, if the sentence does not reflect adequate consideration of
relevant mitigating factors or the constitutionally mandated objective of rehabilitation, or
if it is highly disproportionate to the offense and greatly diverges from the spirit and
purpose of the law. [Citation.] *** We may not substitute our judgment for that of the
sentencing court simply because we would have weighed the factors differently [Citation.]”
[CITATION], 2023 IL App (2d) 220066, ¶ 73.
¶ 20 Here, the record does not show that the trial court ignored any proper factors or considered
any improper ones. Unlawful possession with intent to deliver 400 grams or more, but less than
900 grams, of methamphetamine is punishable by a prison term of not less than 12 years and not
more than 50 years. 720 ILCS 646/55(a)(2)(E) (West 2020). Defendant received the minimum
sentence. Unlawful possession with intent to deliver 900 grams or more of cocaine is punishable
by a prison term of not less than 15 years and not more than 60 years. 720 ILCS 570/401(a)(2)(D)
(West 2020). Defendant’s sentence of 17 years was only 2 years above the minimum and was 43
years below the maximum. Thus, there is no arguably meritorious basis for claiming that the trial
court abused its discretion in imposing these sentences.
[CITATION]
¶ 21 III. CONCLUSION
¶ 22 After examining the record, the motion to withdraw, and the memorandum of law, we agree
with counsel that this appeal presents no issue of arguable merit. Thus, we grant the motion to
withdraw, and we affirm the judgment of the circuit court of Kane County.
¶ 23 Affirmed.
====== End of Court Ruling ======
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
2024 IL 129201
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 129201)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RYAN
SHAVOR DON REDMOND, Appellee.
Opinion filed September 19, 2024.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Overstreet, Cunningham, Rochford, and
O’Brien concurred in the judgment and opinion.
Justice Holder White took no part in the decision.
OPINION
¶1 In this case we must determine, after the recent changes to Illinois’s cannabis
laws, whether a police officer’s detection of the odor of burnt cannabis, considered
alone or in conjunction with other facts, provides probable cause to conduct a
warrantless search of a vehicle. Illinois State Police officer Hayden Combs conducted a search of Ryan Redmond’s vehicle based on, inter alia, his detection
of the strong odor of burnt cannabis emanating from the vehicle. The State
primarily argues that Combs had probable cause to suspect that a search of the
vehicle would uncover evidence that cannabis was improperly contained in the
vehicle or, more likely, uncover evidence that Redmond had used cannabis on his
trip from Des Moines to Chicago. See [CITATION] (“No
driver may use cannabis within the passenger area of any motor vehicle upon a
highway in this State.”). Combs searched Redmond’s car and found one gram of
cannabis inside the center console in a plastic bag.
¶2 The State charged Redmond with unlawful possession of cannabis in violation
of [CITATION] and unlawful possession of cannabis by a driver in violation of [CITATION].
Redmond filed a motion to suppress the cannabis. The Henry County circuit court
granted the motion, and the appellate court affirmed, holding that recent changes to
the law pertaining to cannabis made the odor of burnt cannabis, standing alone,
insufficient to justify a warrantless search of an automobile. [CITATION], ¶ 21.
¶3 We allowed the State’s petition for leave to appeal pursuant to Illinois Supreme
Court Rule 315 (eff. Oct. 1, 2021). We also allowed the American Civil Liberties
Union, ACLU of Illinois, National Association of Criminal Defense Lawyers, and
the Illinois Association of Criminal Defense Lawyers to file an amici curiae brief
on behalf of Redmond’s position. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). For
the following reasons, we affirm the judgment of the appellate court.
¶4 I. BACKGROUND
¶5 On September 15, 2020, Officer Combs saw a car with an improperly secured
license plate traveling at a speed of 73 miles per hour in a 70-mile-per-hour zone
on Interstate 80 in Henry County. Combs initiated a traffic stop of Redmond’s
vehicle. Combs approached on the passenger side, and when Redmond rolled down
the passenger-side window, Combs smelled burnt cannabis. According to the
complaint, Combs searched Redmond’s car and found one gram of cannabis in the
center console in a plastic bag.
¶6 A. Circuit Court
¶7 On June 29, 2021, Redmond filed a motion to suppress the evidence—the
cannabis—the police found in his car. The court heard the motion on August 4,
2021.
¶8 At the hearing on the motion, Combs testified that he stopped Redmond because
his vehicle was travelling at 73 miles an hour in a 70-mile-per-hour zone (see [CITATION])
(setting the “maximum speed limit” at “70 miles per hour upon any interstate highway”))
and the vehicle had an improper display of registration (see [CITATION] (“every registration plate or
digital registration plate shall at all times be securely fastened in a horizontal
position to the vehicle”)). 1 When Combs approached, he smelled the odor of burnt
cannabis emitting from the vehicle. During the State’s examination, Combs
testified that the odor was very strong. Combs also testified he asked Redmond
about the odor and Redmond denied having smoked cannabis in the vehicle.
¶9 Combs’s examination of the vehicle did not reveal anything that was lit or
currently emitting the odor of cannabis from the vehicle. Combs also agreed that
he did not see any cannabis in plain view. Combs had Redmond step out of his
vehicle and seated him in the squad car. With Redmond out of his vehicle, Combs
could still smell the odor of burnt cannabis in the vehicle, but he could not recall
smelling the odor of burnt cannabis on Redmond’s person. Combs admitted he saw
no signs of impairment when he spoke to Redmond.
¶ 10 Redmond did not produce his license and registration. Using information
obtained from Redmond, Combs retrieved a record showing that Redmond had a
valid Illinois license with a Chicago address. Combs testified that Redmond failed
to give a straight answer to questions about where he lived, but Combs admitted
Redmond said he lived in Chicago and had stayed with a friend in Des Moines.
Redmond has not contested the validity of the stop in any court, and thus, we do not analyze
the validity of the stop in this case.
¶ 11 Combs testified that he searched the car because there was an odor of burnt
cannabis, Redmond gave evasive answers, Interstate 80 was “a known drug
corridor,” and Redmond admitted he was driving from Des Moines to Chicago,
where both cities are “hub[s] of criminal activity.” Combs’s search uncovered
approximately one gram of cannabis in the center console in a plastic bag.
¶ 12 In an order dated November 10, 2021, the circuit court granted the motion to
suppress, finding Combs lacked probable cause for the warrantless search. The
court first noted what was not present during the stop; namely, Combs did not
observe any signs of impairment or signs indicative of recent cannabis use. Combs
also did not observe any paraphernalia, loose or unpackaged cannabis, or the odor
of raw cannabis coming from the vehicle. The circuit court found that “nothing”
about Redmond’s “living arrangement, travel plans, or travel route add[ed] to the
likelihood that [he] was engaged in criminal conduct.” As to the odor of burnt
cannabis, the circuit court found that, because the smell of burnt cannabis could
persist even if possessed and used wholly within the bounds of Illinois law, the
smell of burnt cannabis standing alone could not constitute probable cause for a
warrantless vehicle search.
¶ 13 On November 10, 2021, the State filed an interlocutory appeal pursuant to
Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017) with a certificate stating
that the order substantially impaired its prosecution of the case. See [CITATION].
¶ 14 B. Appellate Court
¶ 15 The appellate court held that “ ‘the smell of the burnt cannabis, without any
corroborating factors, is not enough to establish probable cause to search the
vehicle.’ ” [CITATION]. The appellate court, like the trial court, pointed out the
absence of evidence supporting the search. Id. ¶ 22 (“Redmond did not delay
pulling over or make any furtive movements, he rolled down the window when
Combs came to the passenger side of the vehicle, and Combs did not observe any
cannabis or related drug paraphernalia in the vehicle, smoke in the vehicle, or signs
of impairment in Redmond.”).
¶ 16 The court also found a lack of evidence supporting Combs’s testimony that
Interstate 80 was a known drug corridor and that Des Moines and Chicago were
hubs of criminal activity. [CITATION] Both facts were unrelated to and
unsupportive of Combs’s suspicion that Redmond had smoked cannabis in the
vehicle. [CITATION] The appellate court affirmed the circuit court’s judgment suppressing
the cannabis seized in the warrantless search of Redmond’s car. [CITATION]
¶ 17 This court granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. Oct. 1, 2021).
¶ 18 II. ANALYSIS
¶ 19 The sole issue before this court is whether Officer Combs had probable cause
to search Redmond’s vehicle after Combs smelled the odor of burnt cannabis
coming from the vehicle. The State argued in its brief that “where the officer
detected the strong odor of burnt cannabis—a reasonable officer was justified in
suspecting either a violation of the odor-proof transportation requirement or,
perhaps more likely, the prohibition on the use of cannabis within a vehicle.”
Redmond responds that, after the legislature legalized the use and possession of
cannabis, the odor of burnt cannabis emanating from a vehicle alone “lacks a clear
and direct enough connection to illegal activity to make it ‘probable’ that a crime
has recently been committed or is being committed.”
[SEGMENT 2]
¶ 20 A. Standard of Review
¶ 21 We review the trial court’s ruling on the motion to suppress under the two-part
standard enunciated by the United States Supreme Court in Ornelas v. United
States, 517 U.S. 690, 696-97 (1996). [CITATION] “Factual
findings by the trial court will be reversed only if they are against the manifest
weight of the evidence, but the ultimate legal determination as to whether
suppression is warranted is reviewed de novo.” [CITATION]
¶ 22 B. Constitutional Prohibitions Against
Unreasonable Searches
¶ 23 The fourth amendment to the United States Constitution provides: “The right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause ***.” U.S. Const., amend. IV. The Illinois
Constitution similarly provides: “The people shall have the right to be secure in
their persons, houses, papers and other possessions against unreasonable searches
***. No warrant shall issue without probable cause ***.” Ill. Const. 1970, art. I,
§ 6. “[S]earches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well-delineated exceptions.” [CITATION]
¶ 24 One well-established exception is for searches of automobiles. See [CITATION] (“There are recognized exceptions to the general rule, however, including an
exception for searches of vehicles.”). The automobile exception is justified because
of an automobile’s “transient nature,” which “often renders it impracticable to
secure a warrant before the automobile escapes the jurisdiction in which the warrant
must be sought.” [CITATION] “Under the automobile exception, law
enforcement officers may undertake a warrantless search of a vehicle if there is
probable cause to believe that the automobile contains evidence of criminal activity
that the officers are entitled to seize.” [CITATION]
¶ 25 C. Probable Cause to Search
¶ 26 Probable cause exists where the evidence known to the officer raises a “fair
probability that contraband or evidence of a crime will be found in a particular
place.” [CITATION]; see id. at 243 n.13 (“[P]robable
cause requires only a probability or substantial chance of criminal activity, not an
actual showing of such activity.”). “Whether the necessary probability exists is
governed by commonsense considerations that are factual and practical, rather than
by technical rules.” [CITATION] “[P]robable cause does
not require an officer to rule out any innocent explanations for suspicious facts.”
Hill, [CITATION], ¶ 24. “Instead, it requires only that the facts available to the
officer—including the plausibility of an innocent explanation—would warrant a
reasonable man to believe there is a reasonable probability” that a search of the
automobile will uncover contraband or evidence of criminal activity. Id. “A court
must examine the events leading up to the search or seizure, and then decide
whether these historical facts, viewed from the standpoint of an objectively
reasonable law enforcement officer, amount to probable cause.” [CITATION].
¶ 27 D. Evolution of Cannabis Law
¶ 28 Because cannabis law has changed drastically over the last decade, we briefly
address the evolution of statutes dealing with cannabis and the caselaw analyzing
whether probable cause exists based on an officer’s detection of the odor of
cannabis coming from a vehicle. And because probable cause deals with the
probability that a search will produce contraband or evidence of criminal activity,
we address the state of cannabis laws at the time of the stop in September 2020.
¶ 29
. Pre-2013: All Cannabis Is Contraband
¶ 30 Prior to 1971, marijuana was classified as a narcotic and punished accordingly.
See [CITATION] (per curiam) (observing that the
legislature had recently removed marijuana from the purview of the Narcotic Drug
Act (Ill. Rev. Stat. 1969, ch. 38, ¶ 22-1 et seq.)). In 1971, the legislature enacted
the Control Act. See Pub. Act 77-758, § 1 (adding Ill. Rev. Stat. 1971, ch. 56½,
§ 701 et seq.). 2 The Control Act provided: “It is unlawful for any person knowingly
to possess cannabis.” Id. § 704. The Control Act set penalties between a Class C
misdemeanor for the possession of not more than 2.5 grams of any substance
Among the legislative findings were that cannabis was “widely used and pervasive among the
citizens of Illinois” and that previous laws on cannabis had “unnecessarily and unrealistically drawn
a large segment of our population within the criminal justice system.” Ill. Rev. Stat. 1971, ch. 56½,
§ 701. The General Assembly declared its intent to “establish a reasonable penalty system which is
responsive to the current state of knowledge concerning cannabis and which directs the greatest
efforts of law enforcement agencies toward the commercial traffickers and large-scale purveyors of
cannabis.” Id.
containing cannabis and a Class 3 felony for the possession of more than 500 grams
of any substance containing cannabis. Id. § 704(a)-(e).
¶ 31 In [CITATION], this court held that “additional
corroboration” was not required to establish probable cause for a warrantless search
“where a trained and experienced police officer detects the odor of cannabis
emanating from a defendant’s vehicle.” The defendant had been pulled over for
making an illegal turn. Id. at 81. As the officer approached the vehicle, he smelled
the odor of “burning cannabis from inside the defendant’s car.” Id. at 87. We
explained that a “police officer’s detection of controlled substances by their smell
has been held to be a permissible method of establishing probable cause.” Id. This
court added that the officer, “when confronted with circumstances which tended to
indicate that criminal activity was taking place,” had a duty “to investigate in order
to determine whether such criminal activity in fact existed.” Id.
¶ 32
. Legalization (Medical) and
Decriminalization Phase
¶ 33 In 2013, the General Assembly promulgated the Compassionate Use of Medical
Cannabis Pilot Program Act (Medical Act). See Pub. Act 98-122, § 1 (eff. Jan. 1,
2014) (adding 410 ILCS 130/1 et seq.). The Medical Act made it lawful for certain
individuals with debilitating medical conditions to possess and use cannabis. 410
ILCS 130/10(t), 25(a) (West 2014). Nevertheless, the Vehicle Code prohibited the
use of cannabis in a motor vehicle (625 ILCS 5/11-502.1(a) (West 2014)), and if it
was possessed in a motor vehicle, the cannabis was required to be stored in a
“sealed, tamper-evident medical cannabis container” (id. § 11-502.1(b), (c)).
¶ 34 In 2016, the Control Act was amended, and the possession of not more than 10
grams of any substance containing cannabis was made a civil law violation with a
minimum fine of $100 and a maximum fine of $200. 720 ILCS 550/4(a) (West
2018); see Pub. Act 99-697, § 40 (eff. July 29, 2016). Possession of more than 10
grams of a substance containing cannabis remained criminal, with penalties ranging
from a Class B misdemeanor to a Class 1 felony. See 720 ILCS 550/4(b)-(g) (West
2018).
```
¶ 35 During the evolution of Illinois’s cannabis laws—the legalization of medical
cannabis and the decriminalization of the possession of small amounts of
cannabis—this court decided [CITATION]. In [CITATION], this court decided the
propriety of a search that occurred on May 29, 2017. [CITATION]. ¶ 5. The defendant was
pulled over based on the officer’s belief that the passenger was a fugitive. [CITATION]. The
defendant drove a few blocks before pulling over, which the officer testified was
indicative of someone in the car concealing or destroying contraband or producing
a weapon. [CITATION]. The officer approached the passenger side and immediately smelled
the strong odor of raw cannabis. [CITATION]. The passenger admitted that he was a cannabis
user and that he had smoked cannabis earlier that day. [CITATION]. ¶ 10. The officer also
observed in plain view a “bud” in the back seat of the car. [CITATION].
[SEGMENT 3]
¶ 36 This court first declined to address the “narrow legal issue” of whether [CITATION]
remained good law because, unlike the officer in [CITATION], the officer relied on more
than the odor of raw cannabis. [CITATION]. ¶¶ 16, 18. In a footnote we stated: “Although we
do not reach whether the odor of cannabis, alone, is sufficient to establish probable
cause, the smell and presence of cannabis undoubtedly remains a factor in a
probable cause determination.” [CITATION]. ¶ 18 n.2.
¶ 37 This court then analyzed the changes in Illinois’s cannabis law. [CITATION]. ¶¶ 27-31.
We rejected the defendant’s argument that decriminalization of the possession of
small amounts of cannabis affected the probable cause analysis because the
possession of cannabis remained unlawful. See [CITATION]. ¶ 31 (“the decriminalization of
possessing small amounts of cannabis did not alter the status of cannabis as
contraband”). Regarding the Medical Act, we noted that, “[w]hile the mere
presence of cannabis for medical users may no longer be immediately attributable
to criminal activity or possession of contraband, such users must possess and use
cannabis in accordance with the [Medical] Act.” [CITATION]. ¶ 34 (citing the Vehicle Code’s
requirement that a medical user must possess cannabis within a motor vehicle in a
“sealed, tamper-evident medical cannabis container” (625 ILCS 5/11-502.1(b), (c)
(West 2016))).
¶ 38 With the legal framework established, this court found that the officers had
probable cause to search the defendant’s vehicle based on the totality of the
circumstances, including (1) the defendant’s delay in pulling over and the officer’s
testimony that a delay often means the car’s occupants are hiding contraband or
``` retrieving a weapon, (2) the passenger stating that he smokes cannabis and had done
so that day, (3) the officer’s observation of a loose “bud” in the back seat, and
(4) the strong odor of raw cannabis, which, “together,” indicated that cannabis was
in the car and likely not properly contained. [CITATION] ¶ 35. We then analyzed the case
under standards we have used related to an officer’s smell of alcohol because, like
cannabis, “possession of alcohol is lawful under some circumstances but remains
unlawful under other circumstances.” [CITATION] ¶ 36. We concluded that there was
probable cause because, as the alcohol precedent instructed, there was some indicia
of criminality in addition to the smell of cannabis. [CITATION] ¶¶ 36-37.
¶ 39
. Public Act 101-27: Cannabis Act Amended and
Regulation Act Enacted
¶ 40 On June 25, 2019, the General Assembly promulgated Public Act 101-27 (eff.
June 25, 2019), which, along with Public Act 101-593, § 35 (eff. Dec. 4, 2019),
amended the Control Act to provide: “Except as otherwise provided in the Cannabis
Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person
knowingly to possess cannabis.” [CITATION] (amending 720 ILCS 550/4). The Control Act
maintained the same penalty structure regarding the possession of cannabis: the
possession of not more than 10 grams of a substance containing cannabis remained
a civil law violation, and the possession of more than 10 grams was penalized
ranging from a Class B misdemeanor to a Class 1 felony. See 720 ILCS 550/4(a)-
(g) (West 2020).
¶ 41 In Public Act 101-27 (eff. June 25, 2019), the General Assembly also enacted
the Cannabis Regulation and Tax Act (Regulation Act) (410 ILCS 705/1-1 et seq.
(West 2020)), the most comprehensive and detailed legislation regarding the use
and possession of cannabis in the State of Illinois. In what could be described as
the legalization clause, section 10-5 of the Regulation Act provides:
“Beginning January 1, 2020, notwithstanding any other provision of law, and
except as otherwise provided in this Act, the following acts are not a violation
of this Act and shall not be a criminal or civil offense under State law or the
ordinances of any unit of local government of this State or be a basis for seizure
or forfeiture of assets under State law for persons other than natural individuals
under 21 years of age:
- 10 - (1) possession, consumption, use, purchase, obtaining, or transporting
cannabis paraphernalia or an amount of cannabis for personal use that does
not exceed the possession limit under Section 10-10 or otherwise in
accordance with the requirements of this Act[.]” [CITATION]
Section 10-10 of the Regulation Act defines the possession limit “for a person who
is 21 years of age or older and a resident of this State” as “(1) 30 grams of cannabis
flower; (2) no more than 500 milligrams of THC contained in cannabis-infused
product; [and] (3) 5 grams of cannabis concentrate.” [CITATION] 3
Pursuant to the Regulation Act, it is generally legal for an Illinois resident who is
over the age of 21 to use cannabis and to possess up to 30 grams of cannabis. Thus,
the Regulation Act provides an exception to the Control Act’s prohibition against
the possession of cannabis. Compare [CITATION], with [CITATION].
¶ 42 Section 10-35 of the Regulation Act, titled “Limitations and penalties,”
provides that the Regulation Act
“does not permit any person to engage in, and does not prevent the imposition
of any civil, criminal, or other penalties for ***
***
(2) possessing cannabis ***
***
(D) in a vehicle not open to the public unless the cannabis is in a
reasonably secured, sealed container and reasonably inaccessible while
the vehicle is moving[.]” [CITATION]
The legislative findings for the Regulation Act include the following:
“In the interest of allowing law enforcement to focus on violent and property crimes, generating
revenue for education, substance abuse prevention and treatment, freeing public resources to
invest in communities and other public purposes, and individual freedom, the General
Assembly finds and declares that the use of cannabis should be legal for persons 21 years of
age or older and should be taxed in a manner similar to alcohol.” [CITATION]
- 11 - Section 10-35 also provides that the Regulation Act “does not permit any person to
engage in, and does not prevent the imposition of any civil, criminal, or other
penalties for *** (3) using cannabis *** (D) in any motor vehicle *** [or] (F) in
any public place.” Id. § 10-35(a)(3)(D), (F). Thus, if an individual engages in the
conduct described in section 10-35, the section 10-5 immunity provision is rendered
inapplicable. 4
¶ 43 The Vehicle Code, amended at the same time and in the same public act that
created the Regulation Act, prohibits the use of cannabis in a vehicle upon a
highway and restrains how an individual may possess cannabis within a vehicle.
Pub. Act 101-27 (eff. June 25, 2019) (adding 625 ILCS 5/11-502.15). The Vehicle
Code provides: “No driver may use cannabis within the passenger area of any motor
vehicle upon a highway in this State.” 625 ILCS 5/11-502.15(a) (West 2020). The
Code also provides that “[n]o driver may possess cannabis within any area of any
motor vehicle upon a highway in this State except in a sealed, odor-proof, child-
resistant cannabis container.” Id. § 11-502.15(b). 5
¶ 44 E. The Odor of Burnt Cannabis Alone
No Longer Establishes Probable Cause
¶ 45 After January 1, 2020, when the use and possession of cannabis was legalized
in many instances, our appellate court has reached conflicting results in cases
concerning the effect of legalization on probable cause for automobile searches.
The Second District has held that the odor of burnt cannabis, standing alone, still
justifies a warrantless search of an automobile. See [CITATION], ¶ 31 (holding that an officer that smells the strong odor of burnt
cannabis coming from a vehicle has “probable cause to believe that cannabis is
The use and possession of up to “30 grams of cannabis flower; *** no more than 500
milligrams of THC contained in cannabis-infused product; [and] *** 5 grams of cannabis
concentrate” is not a criminal or civil offense under state law (410 ILCS 705/10-5(a)(1), 10-10(a)(1)-
(3) (West 2020)), but section 10-35 of the Regulation Act removes its protection for the use of
cannabis in a motor vehicle and the possession of cannabis in a motor vehicle “unless the cannabis
is in a reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving”
(id. § 10-35(a)(2)(D), (3)(D)).
[SEGMENT 4]
Redmond does not contest the validity of the odor-proof container requirement. In [CITATION], a case dealing with a police officer’s detection of the odor of raw cannabis
coming from a vehicle, we address the validity of the odor-proof container requirement.
- 12 - being transported, possessed, or used in a manner contrary to law”). The Third
District has held that “the smell of the burnt cannabis, without any corroborating
factors, is not enough to establish probable cause to search [a] vehicle.” [CITATION],
¶ 28. We now resolve the conflict between the districts and consider whether the legalization of cannabis affects the legality of warrantless
searches based on the odor of burnt cannabis.
¶ 46 At oral argument, the State conceded 6 that the smell of burnt cannabis, standing
alone, is insufficient to give an officer probable cause to search a vehicle. 7 While
we are not bound by the State’s concession ([CITATION], ¶ 44), we agree with the concession in this case. The laws on cannabis have changed
in such a drastic way as to render the smell of burnt cannabis, standing alone,
insufficient to provide probable cause for a police officer to search a vehicle without
a warrant. See 720 ILCS 550/4 (West 2020); 410 ILCS 705/10-5(a)(1), 10-10(a)
(West 2020); 625 ILCS 5/11-502.15 (West 2020).
¶ 47 Unlike the legal landscape considered in [CITATION], Illinois cannabis law has evolved,
and use and possession have not only been decriminalized in numerous situations,
but they have been legalized in numerous situations. See 410 ILCS 705/10-5(a)(1),
10-10(a) (West 2020). There are now a myriad of situations where cannabis can be
used and possessed (id.), and the smell resulting from that legal use and possession
is not indicative of the commission of a criminal offense. See 720 ILCS 5/2-12
(West 2020) (“ ‘Offense’ means a violation of any penal statute of this State.”).
Therefore, given the fact that under Illinois law the use and possession of cannabis
is legal in some situations and illegal in others, the odor of burnt cannabis in a motor
The following two colloquies occurred during oral argument:
CHIEF JUSTICE THEIS: “So you are conceding that the case *** where there is burnt
marijuana, you are conceding that that is the case in which the analysis should be totality of the
circumstances?”
STATE: “Yes. *** The smoked cannabis, yes. *** It is not directly before this court
because there were additional circumstances beyond the smell of cannabis alone.”
***
JUSTICE HOLDER WHITE: “Okay, so burnt cannabis, you’re stopped and the officer
smells burnt cannabis. *** Your argument is that that alone is insufficient to search the
vehicle?”
STATE: “I think that’s correct though it’s not necessarily before this court *** because
there were additional circumstances in this case which I believe led to the probable cause.”
The State argued in its brief that “the odor of cannabis—whether in raw or burnt form—
continues to provide police with probable cause to search the vehicle.”
- 13 - vehicle, standing alone, is not a sufficiently inculpatory fact that reliably points to
who used the cannabis, when the cannabis was used, or where the cannabis was
used.
¶ 48 A comparison to the odor of alcohol caselaw supports the conclusion that
probable cause does not exist based on the smell of burnt cannabis alone. See 410
ILCS 705/1-5(b) (West 2020) (finding that “cannabis should be regulated in a
manner similar to alcohol”). “Similar to cannabis, possession of alcohol is lawful
under some circumstances but remains unlawful under other circumstances.” [CITATION], 2020 IL 124595, ¶ 36; see, e.g., 625 ILCS 5/11-502(a) (West 2020) (providing that
“no driver may transport, carry, possess or have any alcoholic liquor within the
passenger area of any motor vehicle upon a highway in this State except in the
original container and with the seal unbroken”); 625 ILCS 5/11-501(a) (West 2020)
(“A person shall not drive or be in actual physical control of any vehicle within this
State while: (1) the alcohol concentration in the person’s blood, other bodily
substance, or breath is 0.08 or more ***.”). Our cases, and those of other
jurisdictions, support the proposition that more is needed to establish probable
cause than the odor of alcohol.
¶ 49 For example, in [CITATION], the officer stopped
the driver of a truck based on an expired sticker. The officer smelled alcohol on the
defendant’s breath and observed an open bottle in a brown paper bag. [CITATION].
“The bottle’s neck was exposed and the officer could observe that it contained
liquid.” [CITATION]. “Judging from the shape of the bottle and color of the label on the neck,
the officer was nearly certain that it was a bottle of Miller’s beer.” [CITATION]. We held that
on this information “alone it was reasonable for the officer to enter the passenger
compartment of the defendant’s vehicle in order to inspect the bottle and search for
alcohol.” [CITATION]. Similarly, the appellate court held that probable caused existed
in [CITATION], where the officers (1) observed
a passenger’s hurried and suspicious movements, (2) observed liquid dripping from
the glove compartment, and (3) smelled the odor of alcohol. The court held that the
“odor of alcohol associated with the dripping glove compartment would warrant
the belief of a reasonable man that further investigation was appropriate.” [CITATION].
- 14 - ¶ 50 Courts from other states agree. In [CITATION], the Supreme Court of Kansas held that probable cause to search a vehicle
did not exist based on the strong odor of alcohol coming from the vehicle. There,
officers stopped the defendant for a turn signal violation. [CITATION]. When the
officers approached, they smelled the very strong odor of alcohol. [CITATION]. The defendant
exited the vehicle, passed field sobriety tests, and then was allowed to reenter the
vehicle. [CITATION]. The officers then searched the vehicle. [CITATION].
¶ 51 The court conducted a detailed analysis of the facts known to the officers in
relation to the crime suspected, transporting an open container of alcohol, to
determine if there was a “fair probability” that a search would uncover evidence of
the crime. [CITATION]. The court noted several exculpatory facts that the officers
discovered during their investigation, including that the defendant passed a field
sobriety test and that an initial observation into the vehicle uncovered no open
containers. [CITATION]. The court stated:
“the totality of the circumstances in this case only establishes that the officers’
observation of a very strong odor of alcohol emanating from within the vehicle,
which they suspected to be the result of spilled alcohol, provided them with
reasonable suspicion to extend the traffic infraction detention to further
investigate whether [the defendant] was transporting an open container of
alcohol.” [CITATION].
The court concluded that the “officers’ failure to acquire additional inculpatory
facts relating to the crime being investigated before commencing their search of the
vehicle rendered the search unreasonable and unlawful.” [CITATION]; see [CITATION] (odor of alcohol did not justify search during a
traffic stop).
¶ 52 In [CITATION], the Minnesota Supreme
Court extended the reasoning of [CITATION] to a case involving the odor of cannabis
in a vehicle. The Torgerson court said:
“[W]e hold that the odor of marijuana may be considered as part of the probable
cause calculus. Specifically, the odor of marijuana is one of the circumstances
in the totality of circumstances analysis that should be considered in
- 15 - determining if there is a ‘fair probability’ that contraband or evidence of a crime
will be found in the location searched. [Citations.]
***
It is undisputed that the only indication that evidence of a crime or
contraband may be found in Torgerson’s vehicle was the odor of marijuana
emanating from the vehicle. *** There was nothing in Torgerson’s actions to
give suspicion that he was under the influence while driving, no drug
paraphernalia or other evidence to indicate that the marijuana was being used
in a manner, or was of such a quantity, so as to be criminally illegal, and no
evidence showing that any use was not for legal medicinal purposes. In the
absence of any other evidence as part of the totality of the circumstances
analysis, the evidence of the medium-strength odor of marijuana, on its own, is
insufficient to establish a fair probability that the search would yield evidence
of criminally illegal drug-related contraband or conduct.” Id. at 174-75.
[SEGMENT 5]
¶ 53 The Minnesota Supreme Court’s ruling comports with several recent decisions
from other states that have reduced or eliminated criminal penalties for cannabis
possession and use. See [CITATION] (“the
odor of marijuana alone does not amount to probable cause to conduct a warrantless
search of a vehicle but, rather, may be considered as a factor in examining the
totality of the circumstances”); [CITATION]
(“Since the enactment of the 2008 initiative decriminalizing the
possession of one ounce or less of marijuana, we have held that the odor of burnt
marijuana alone cannot support probable cause to search a vehicle without a
warrant.”).
¶ 54 Therefore, based on our precedent and the state of cannabis laws at the time of
the search, we hold that the odor of burnt cannabis is a fact that should be
considered when determining whether police have probable cause to search a
vehicle, but the odor of burnt cannabis, standing alone without other inculpatory
facts, does not provide probable cause to search a vehicle. In light of our holding,
Stout’s core holding—that an officer’s detection of the odor of burnt cannabis
emanating from a vehicle, standing alone, establishes probable cause to conduct a
warrantless search of the vehicle—is no longer valid for searches that occurred on
- 16 - or after January 1, 2020.
¶ 55 F. The Totality of the Circumstances Did
Not Provide Probable Cause to Search
¶ 56 We have summarized the state of the law regarding cannabis in September
2020. Now we will discuss in more detail the legal landscape in relation to the
search in this case. We pause here to discuss, in slightly more detail, what crimes
Combs was investigating.
¶ 57 First, the State argues that Redmond was likely violating the Vehicle Code by
using cannabis in a motor vehicle. 625 ILCS 5/11-502.15 (West 2020). Section 11-
502.15 of the Vehicle Code provides: “No driver may use cannabis within the
passenger area of any motor vehicle upon a highway in this State.” Id. § 502.15(a).
Second, Redmond may have violated the Vehicle Code by possessing cannabis in
a motor vehicle in violation of the Vehicle Code. See id. § 11-502.15(b) (“No driver
may possess cannabis within any area of any motor vehicle upon a highway in this
State except in a sealed, odor-proof, child-resistant cannabis container.”). What is
notable about the Vehicle Code provisions is that they do not prohibit the
possession or use of cannabis within a motor vehicle. See id. § 502.15. The
gravamen of the offenses is that the conduct occurs “upon a highway in this State.” 8
Thus, it would not have been a violation of the Vehicle Code for Redmond to have
used cannabis in a motor vehicle before he left Des Moines or in any location within
Illinois not considered a “highway.” 9
¶ 58 Finally, the State points to the Regulation Act’s (1) prohibition against the use
of cannabis in a motor vehicle and (2) prohibition against the possession of
cannabis in a motor vehicle “unless the cannabis is in a reasonably secured, sealed
container and reasonably inaccessible while the vehicle is moving.” 410 ILCS
705/10-35(a)(2)(D) (West 2020); id. § 10-35(a)(3)(D). Notably, these are not
We note the narrowness of these prohibitions in comparison to the prohibition against driving
while under the influence, which applies if a person “drive[s]” or is in “actual physical control of
any vehicle within this State.” 625 ILCS 5/11-501(a) (West 2020).
The Vehicle Code defines “highway” as the “[t]he entire width between the boundary lines of
every way publicly maintained when any part thereof is open to the use of the public for purposes
of vehicular travel or located on public school property.” 625 ILCS 5/1-126 (West 2020).
- 17 - offenses themselves. Instead, the Control Act establishes the penalty structure for
the possession of cannabis. See 720 ILCS 550/4(a)-(g) (West 2020). Section 10-5
of the Regulation Act then generally grants immunity from prosecution for the use
and possession of cannabis. Section 10-35 then describes conduct for which section
10-5 does not apply. In other words, if the State can establish that an individual is
engaged in conduct described in section 10-35 (i.e., the individual used cannabis in
the vehicle or possessed cannabis in an unauthorized container), the individual’s
possession of cannabis is not immune from the Control Act’s general prohibition
against the possession of cannabis.
¶ 59 The State contends that the totality of the circumstances, including Combs’s
detection of the strong odor of burnt cannabis, made it reasonable to suspect that
Redmond had smoked cannabis in the car on his way from Des Moines to Chicago.
The State relies on the following facts in addition to the strong smell of burnt
cannabis coming from the vehicle: (1) the stop occurred on Interstate 80, halfway
between Des Moines and Chicago, (2) Combs continued to smell the odor of burnt
cannabis in the vehicle after he removed Redmond, (3) Redmond did not produce
his license and registration, and (4) Redmond did not provide direct answers to
Combs’s questions about where he lived or why he was traveling from Des Moines
to Chicago. The State concludes that these facts established probable cause to
believe that Redmond violated the Vehicle Code and Regulation Act.
¶ 60 The first two facts are not inculpatory facts that provide probable cause for a
search. Notably, the State has abandoned its argument related to, and the trial court
discounted as “unpersuasive,” Combs’s testimony that Interstate 80 is a “drug
corridor.” That Redmond had likely been in the car for a lengthy period and that
the smell of cannabis remained in the car when Redmond was removed support a
reasonable suspicion that he had smoked cannabis in the car at some point.
However, Combs, aside from the smell, observed no signs of impairment and no
drug paraphernalia or evidence of cannabis use in the car. See [CITATION], 321 P.3d
at 763 (“Country common sense would likewise lead one to believe that an
intoxicated person would be more likely to have an open container in the vehicle
from which he or she had been drinking than a sober person who had passed the
field sobriety tests.”). Combs also did not smell the odor of burnt cannabis on
Redmond, which undercuts the reasonable belief that Redmond had recently
smoked cannabis inside the vehicle while on an Illinois highway.
- 18 - ¶ 61 We are unpersuaded that the two latter facts provided any support to the
probable cause analysis. First, while it is a violation of the Vehicle Code for a driver
not to have his driver’s license in his immediate possession when operating a motor
vehicle (625 ILCS 5/6-112 (West 2020)), that violation does not add to the probable
cause analysis because it did not make it any more likely that evidence of the
suspected crime would be present. Also, Combs’s search through the Secretary of
State’s database established that Redmond had a valid Illinois license at the time of
the stop. Second, the trial court found, and we agree, that there was a semantic
difference between Combs and Redmond regarding Redmond’s living
arrangements. Redmond explained that he lived in Chicago but was temporarily
staying in Des Moines because of the pandemic. Combs continued to construe that
explanation as Redmond stating that his permanent address had changed to
Des Moines. We also agree with the trial court’s finding that Redmond’s alleged
failure to give “direct answers” on his living arrangements did not make it any more
likely, alone or along with the other evidence, that Redmond’s car contained
contraband or evidence of a crime.
¶ 62 Police are also, in considering the totality of the circumstances, required to
consider facts that tend to defeat or dispel probable cause. See [CITATION]
(“But the essence of all that has been written is that the totality of the circumstances—the whole picture—must be taken into
account.”); [CITATION] (recognizing that facts may be
uncovered that “dispel” an officer’s initial reasonable suspicion). As the appellate
court noted,
“Redmond did not delay pulling over or make any furtive movements, he rolled
down the window when Combs came to the passenger side of the vehicle, and
Combs did not observe any cannabis or related drug paraphernalia in the
vehicle, smoke in the vehicle, or signs of impairment in Redmond.” [CITATION], ¶ 22.
[SEGMENT 6]
¶ 63 In short, Officer Combs’s detection of the strong odor of burnt cannabis coming
from the vehicle certainly established reasonable suspicion to investigate further.
Combs reasonably investigated whether Redmond had violated the Vehicle Code
and whether Redmond was driving impaired. When his further investigation did
not yield any inculpatory facts, the quantity of evidence never advanced on the
- 19 - continuum from reasonable suspicion to probable cause to search. Therefore, the
search was unreasonable and unlawful, and the circuit court properly granted
Redmond’s motion to suppress the evidence in this case.
¶ 64 Finally, the State argues that this court should reverse the circuit court because
Combs acted in good faith when he searched Redmond’s car. The State did not raise
any issue regarding the good faith exception in the circuit court. The State forfeited
the issue a second time by failing to raise it in the appellate court. See [CITATION]. Therefore, we decline to address the State’s
twice-forfeited good faith argument.
¶ 65 III. CONCLUSION
¶ 66 In sum, since January 1, 2020, the use and possession of cannabis is
presumptively lawful, subject to certain restrictions. See 410 ILCS 705/10-5(a)
(West 2020) (“Beginning January 1, 2020 ***.”). We hold that the odor of burnt
cannabis, alone, is insufficient to provide probable cause for police officers to
perform a warrantless search of a vehicle. We also hold that the totality of the facts
and circumstances known to Officer Combs did not provide probable cause to
search Redmond’s vehicle. Therefore, the circuit court correctly granted the motion
suppressing the evidence confiscated from Redmond. Accordingly, we affirm the
appellate court’s decision affirming the trial court’s order suppressing the evidence
seized in the warrantless search of Redmond’s car.
¶ 67 Judgments affirmed.
¶ 68 JUSTICE HOLDER WHITE took no part in the consideration or decision of
this case.
- 20 -
2024 IL App (2d) 230298-U
No. 2-23-0298
Order filed September 16, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
)
v. ) No. 20-CF-352, 20-CM-499, 20-TR-
) 4480-81
)
QUINTON MCKEE, ) Honorable
) Robert P. Pilmer,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE McLAREN delivered the judgment of the court.
Justices Schostok and Mullen concurred in the judgment.
ORDER
¶1 Held: The trial court properly denied defendant’s motion to suppress evidence and
defense counsel at trial was not ineffective.
¶2 Defendant, Quinton McKee, appeals from the trial court’s granting the State’s motion for
a directed finding on his motion to quash arrest and suppress evidence. On appeal, defendant
claims (1) the trial court erred in denying his motion to quash arrest and suppress evidence (2) his
counsel was ineffective for failing to argue in his motion to suppress evidence that the odor of 2024 IL App (2d) 230298-U
cannabis was insufficient to establish probable cause to search defendant. For the following
reasons, we affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with several offenses related to a traffic stop that occurred on
December 6, 2020. Before trial, on March 22, 2023, defendant moved the trial court to quash his
arrest and suppress evidence, arguing the arresting officer lacked probable cause to stop him for
speeding and a seat belt violation. The trial court held a hearing on the motion on May 2, 2023.
During the hearing, the trial court heard testimony from the arresting officer, Andrew Santa, and
viewed video recordings of the traffic stop and arrest. The trial court denied defendant’s motion
and granted the State’s motion for a directed finding that the arresting officer had probable cause
to search the defendant and his vehicle. Defendant filed a timely appeal.
¶5 During the hearing on defendant’s motion to suppress, Sergeant Andrew Santa, an Oswego
police officer, testified that he was assigned general patrol duties on December 6, 2020. While on
patrol, he noticed a silver Mazda automobile he believed was traveling faster than the posted speed
limit. Using pacing with both his patrol vehicle’s speedometer and global positioning system
(GPS) built into the in-car video system, Santa estimated the vehicle was traveling 58-59 miles per
hour in a 45 mile per hour zone. He also observed defendant driving while not wearing a seat belt.
Santa turned on his emergency lights and defendant pulled over on North Merchants Drive, near
the entrance to a McDonalds restaurant.
¶6 Santa testified he approached the vehicle and began a conversation with the driver,
defendant. He introduced himself and explained why he had pulled over defendant. While the
defendant claimed he had just taken off his seat belt, he did acknowledge he was going over the
speed limit.
2024 IL App (2d) 230298-U
¶7 Santa testified that during the conversation he noticed the vehicle “had a pretty strong smell
of fresh cannabis coming from the passenger compartment.” Learning defendant’s drivers’ license
had been suspended, Santa told defendant to exit his vehicle to be searched. When Santa asked if
defendant had anything on him that could harm Santa, defendant revealed he was carrying a
handgun. Santa handcuffed defendant and removed the weapon. Defendant admitted he did not
have a Firearm Owner’s Identification (FOID) card.
¶8 Officers placed defendant under arrest and into the back of the patrol vehicle. A female
officer searched the female passenger from defendant’s vehicle. The passenger was also arrested
when it was discovered she had an outstanding warrant. Officers searched defendant’s vehicle and
discovered 45 grams of cannabis and four oxycontin pills in the center console. The vehicle was
towed from the roadway.
¶9 Santa testified his patrol vehicle was manufactured in 2019 and purchased by the
department in May 2020. He had been the only driver of the patrol car since it was delivered. It
came installed with a WatchGuard video system with a built-in GPS-based speedometer. On cross-
examination, Santa testified the two systems had not been recalibrated, but that both agreed on the
speed of defendant’s vehicle. On redirect, he described using the speed indicated on both systems
to “correlate” the speed of the vehicle.
¶ 10 Following Santa’s testimony, the State moved for a directed finding, arguing that defendant
failed to make a prima facie case to support his motion to suppress.
¶ 11 The trial court found Santa credible regarding the speed of defendant’s vehicle. While the
trial court initially misstated the burden of proof, it clarified that it viewed the evidence in the light
most favorable to the defendant. The trial court found defendant had not met his burden, granted
2024 IL App (2d) 230298-U
the State’s motion for a directed finding, and denied defendant’s motion to suppress evidence and
quash his arrest.
¶ 12 Following a jury trial, defendant was found guilty of unlawful possession of weapon by a
felon (720 ILCS 5/24-1.1(a) (West 2022)), aggravated unlawful use of a weapon (720 ILCS 5/24-
1.6(a)(1)(3)(C) (West 2022)), unlawful possession of a controlled substance (720 ILCS 570/402(c)
(West 2022)), driving on a suspended license (625 ILCS 5/6-303 (West 2022)), and unlawful
transportation of cannabis by a driver (625 ILCS 5/11-502.15 (West 2022)). The court merged
defendant’s convictions of aggravated unlawful use of a weapon and unlawful possession of a
weapon by a felon, and sentenced defendant to two years’ imprisonment. The court also sentenced
defendant to one year of imprisonment for his conviction of possession of a controlled substance,
to be served concurrently. The court imposed fines and costs for defendant’s convictions of driving
on a suspended license and the unlawful transportation of cannabis.
¶ 13 Defendant petitioned for judgment notwithstanding the verdict or a new trial. In the motion,
defendant’s trial counsel argued that Santa lacked probable cause to stop defendant and that the
trial court had erred in granting the directed finding. The trial court denied the motion following a
hearing. This timely appeal followed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, defendant raises two issues. First, he contends that the trial court erred in
denying his suppression motion. Second, in the alternative, defendant argues his trial counsel was
ineffective for failing to allege the smell of cannabis alone was insufficient to establish probable
[SEGMENT 7]
cause to search defendant.
¶ 16 A. Probable Cause for Traffic Stop
2024 IL App (2d) 230298-U
¶ 17 Defendant claims the trial court erred when it denied his motion to suppress evidence
because Officer Santa lacked probable cause for stopping him for speeding and a seatbelt violation.
The trial court heard the officer testify and watched the video from the traffic stop and arrest. The
video includes audio of defendant stating he “probably was going a little fast.” In reviewing the
evidence, the trial court found Officer Santa credible regarding his testimony that defendant was
exceeding the posted speed limit. Upon our review, we cannot conclude that this finding was
unreasonable, arbitrary, or not based on the evidence presented during the hearing.
¶ 18 The defendant bears the burden of proof during a hearing on their motion to suppress
evidence. [CITATION]. “In order to carry that burden, a defendant must make a prima facie case that the evidence at issue was obtained by or through an
illegal search or seizure.” Id. “If a defendant makes a prima facie case, the State has the burden of
going forward with evidence to counter the defendant’s prima facie case.” [CITATION]. The burden of proof ultimately remains with the defendant. [CITATION]. The findings of the trial court will be overturned if they are against the
manifest weight of the evidence. [CITATION]. A finding is against the
manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding
is unreasonable, arbitrary, or not based on the evidence presented. Id.
¶ 19 A temporary detention of a motorist during a traffic stop by the police invokes the “seizure”
of “persons” within the meaning of the Fourth Amendment. U.S. Const., amend. IV; [CITATION]. Traffic stops are permitted when it is not
“unreasonable.” [CITATION]. A traffic stop by a police
officer is reasonable when the officer has a reasonable suspicion the motorist violated a traffic law.
[CITATION].
2024 IL App (2d) 230298-U
While a mere “hunch” is insufficient, “the level of suspicion the standard requires is ‘considerably
less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is
necessary for probable cause.” [CITATION]; see also [CITATION]. The subjective beliefs of the police officer are “largely irrelevant to the probable
cause inquiry.” [CITATION].
¶ 20 Defendant cites several cases which support that a conviction for speeding requires
sufficient proof to the accuracy of radar devices, stopwatches, and speedometers. [CITATION]. As the State correctly notes, the
immediate matter involves probable cause for the traffic stop. The standard of proof for a
conviction, beyond a reasonable doubt, is considerably higher than the standard of proof for
probable cause. The probable cause standard involves probabilities and “are not technical; they are
factual and practical considerations of everyday life in which reasonable and prudent men, not
legal technicians act.” [CITATION]; see also [CITATION].
¶ 21 Defendant presumes, without citation to authority, that modern electronic speedometers
and GPS-based systems must be certified and continually recalibrated to be deemed accurate. He
claims that no proof was presented during the hearing to show the accuracy of the speed-tracking
devices. However, defendant conveniently ignores that two, unconnected and unrelated systems
were used to gauge the speed of his vehicle. One of those systems used global positioning system
satellites to track the speed of the police car and recorded it digitally in the video reviewed by the
trial court. The accuracy of a speedometer is a question for the fact finder to resolve. [CITATION]. We will not substitute our judgment for the trier of fact when it determined that
2024 IL App (2d) 230298-U
the speed indicated by both a speedometer and a GPS unit provided Santa with a probable cause
to stop defendant for speeding. Therefore, the trial court properly granted the State’s motion for a
directed finding and denied defendant’s motion to suppress.
¶ 22 Next, defendant argues that the trial court erred in finding that Santa had probable cause to
initiate a traffic stop due to him not wearing a seat belt. Because we have already determined that
Santa had probable cause to initiate the traffic stop based on a speeding violation, we need not
address this argument.
¶ 23 B. Ineffective Assistance of Counsel
¶ 24 Defendant argues he was denied effective assistance of counsel because his trial counsel
failed to argue the police could not have relied on the smell of cannabis as a legitimate probable
cause for searching his vehicle. Noting recent opinions from the Illinois Appellate Court, Third
District, defendant maintains that recent changes to the legality of cannabis makes the odor of
burnt cannabis alone insufficient for probable cause. See [CITATION]. He claims his trial counsel’s
failure to include this argument in the suppression motion equates to ineffective assistance of
counsel.
¶ 25 The right to counsel is, in effect, the right to the effective assistance of counsel. [CITATION]. “The benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having produced
a just result.” [CITATION]. To succeed in his claim,
defendant must show two things: that the performance of his counsel was deficient and that he was
prejudiced by such deficiency. Id. at 694. In [CITATION], our supreme court adopted
2024 IL App (2d) 230298-U
Strickland and noted specifically that a court can dispose of a claim of ineffective assistance of
counsel for a lack of sufficient prejudice without determining if such counsel was deficient. [CITATION] Even if a trial strategy did not result in an outcome
favorable to the defendant, we “must make every effort to eliminate ‘the distorting effects of
hindsight.’ ” [CITATION] (quoting Strickland, 466 U.S. at 689).
“There is a strong presumption that counsel’ conduct falls within the wide range of reasonable
professional assistance[.]” [CITATION] (citing [CITATION]). The decision whether to file a motion to suppress is generally
a matter of trial strategy and a court will not find counsel ineffective for “failing to file a meritless
motion to suppress.” [CITATION]; see also [CITATION].
¶ 26 As discussed above, the fourth amendment of the United States Constitution protects the
“right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
search and seizures.” U.S. Const., amend. IV. This constitutional guarantee applies to the states
through the due process clause of the fourteenth amendment (U.S. Const., amend. XIV). [CITATION] Reasonableness is the central requirement of the fourth
amendment. [CITATION] As such, the interest in allowing
discretion in enforcing the law for the community’s protection must be balanced against
safeguarding a citizens’ privacy. [CITATION]
¶ 27 Pertinent here, the automobile exception provides that, due to their transient nature,
automobiles may be searched so long as “probable cause exists to believe the automobile contains
evidence of criminal activity subject to seizure.” [CITATION]; see also [CITATION]. Probable cause to search a vehicle
2024 IL App (2d) 230298-U
exists where “the facts and circumstances known to the officer at the time would warrant a
reasonable person to believe there is a reasonable probability that the automobile contains
contraband or evidence of criminal activity.” [CITATION], ¶ 10.
Probable cause requires probability rather than certainty. [CITATION], ¶ 24.
Therefore, “probable cause does not require an officer to rule out any innocent explanations for
suspicious facts.” Id. Indeed, it is not necessary that the belief that contraband or evidence is
present be “more likely true than false.” [CITATION].
¶ 28 We recently addressed the legalization of cannabis in Illinois and its effect on the smell of
cannabis as potential probable cause for the search of a vehicle. This court noted that “[w]hile it is
true that the possession and use of cannabis is now legal in many circumstances, it is still a crime
in some situations.” [CITATION], ¶ 31; see also [CITATION]. The laws of this state make the possession and use of cannabis in an automobile
illegal in some situations, so “it follows that the smell of cannabis in a car can still form the basis
for probable cause. Id. at ¶ 32; see also [CITATION].
“While Illinois has legalized marijuana for recreational use in some circumstances, *** the state
retains laws restricting the packaging of and use of marijuana.” [CITATION].
¶ 29 Defendant notes Santa described the odor of “fresh” cannabis. It could be argued that
“fresh” cannabis could be either “raw” or “burnt.” In the immediate case, however, both odors
could have been emanating from the defendant’s car. After all, defendant admitted to Santa during
the traffic stop that he had recently smoked cannabis and he had over 40 grams of raw cannabis in
a plastic bag in the center console. A plastic bag is unlikely to be the “odor-proof” container
required under Illinois law. 625 ILCS § 5/11-502.1(c) (West 2022); see also [CITATION].
[SEGMENT 8]
2024 IL App (2d) 230298-U
¶ 30 Since the laws of Illinois make the possession and use of cannabis a crime in certain
situations, it naturally follows that the smell of cannabis can still form the basis for probable cause.
[CITATION], ¶ 32. Therefore, we determined that defendant was not
prejudiced by counsel’s failure to make an argument that was likely to fail. Defendant has not
overcome the strong presumption that his counsel’s conduct falls within the range of reasonable
professional assistance.
¶ 31 We also note that, even if we were to agree with defendant that his counsel should have
argued that the smell of cannabis alone was insufficient to form probable cause, the inevitable-
discovery exception would have allowed the admission of items recovered during the search. See
[CITATION], ¶ 48.
“This exception permits evidence, that would otherwise be inadmissible at trial, to be admitted
where the State can show that such evidence ‘would inevitably have been discovered without
reference to the police error or misconduct.’ ” [CITATION].
¶ 32 As the State argues, defendant’s vehicle would have inevitably been subject to an inventory
search before it was impounded. An inventory search is a “judicially created exception to the
warrant requirement of the fourth amendment.” [CITATION]; see
also [CITATION]. A valid warrantless inventory search of a vehicle must
meet three requirements: (1) the original impounding of the vehicle must be lawful ([CITATION]); (2)
the purpose of the inventory search must be to protect the owner's property while it is in police
custody, to protect the police from claims of lost, stolen, or vandalized property, and to guard the
police from potential danger (Id.); and (3) the good-faith
inventory search must be conducted pursuant to reasonable, standardized police procedures and
- 10 - 2024 IL App (2d) 230298-U
not solely for the purpose of investigating criminal conduct ([CITATION]).
¶ 33 In the immediate matter, defendant was pulled over for speeding and parked in the entry to
a parking lot. Defendant was an armed felon driving on a suspended drivers’ license. His only
passenger had an outstanding warrant for her arrest. From the moment he was pulled over for
speeding, defendant was going to be arrested, his vehicle was going to be towed, and the arresting
officers were going to conduct an inventory search. During the search, Santa explained to
defendant he was conducting the search because the car was being towed and confirmed with him
the items of value he inventoried in the car.
¶ 34 Our review of the record demonstrates that the alleged errors of the defendant’s trial
counsel would not have altered the result in this case. See [CITATION].
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.
¶ 37 Affirmed.
- 11 -
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 23-1708 & 23-1721
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PRENTISS JACKSON,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
No. 2:10-cr-20043-JES-JEH-1 — James E. Shadid, Judge, and
No. 2:22-cr-20044-CSB-EIL-1 — Colin S. Bruce, Judge.
____________________
ARGUED MARCH 28, 2024 — DECIDED JUNE 4, 2024
____________________
Before BRENNAN, SCUDDER, and LEE, Circuit Judges.
BRENNAN, Circuit Judge. An Urbana, Illinois, police officer
pulled over a car just after midnight because its head and tail-
lights were not lit. During the traffic stop, the officer smelled
unburnt marijuana. He asked the driver, Prentiss Jackson, to
exit the car and told Jackson he would search him and the 2 Nos. 23-1708 & 23-1721
vehicle. Soon after leaving the car, Jackson ran. While fleeing,
a gun fell from his waistband.
Jackson was indicted for possessing a firearm as a felon.
He moved to suppress evidence of the gun, arguing it was the
product of an unlawful search. The district court denied Jack-
son’s motion. He conditionally pleaded guilty, was convicted,
and now appeals the denial of his motion to suppress. We af-
firm.
I
The facts below come from testimony taken and the officer
bodycam video presented at the evidentiary hearing held on
Jackson’s motion to suppress.
Shortly after midnight on June 11, 2022, Prentiss Jackson
and a passenger drove through Urbana, Illinois, with unlit
head and taillights. As a result, an Urbana police officer con-
ducted a traffic stop. The officer asked for Jackson’s driver’s
license and registration. Jackson did not have his license but
produced another form of identification.
The officer smelled the odor of unburnt marijuana ema-
nating from the car. He knew the odor came from inside the
car, as he had not smelled it before he approached the vehicle.
During their conversation about the license and registration,
the officer told Jackson he smelled “a little bit of weed” and
asked if Jackson and the passenger had been smoking. Jack-
son said he had, but that was earlier in the day, and he had
not smoked inside the car.
Through the officer’s training, he knew the most common
signs of impairment for driving under the influence were the
odor of marijuana or alcohol and speech issues. He was also
taught to look for traffic violations. Concerned that Jackson Nos. 23-1708 & 23-1721
might be driving under the influence because of the head and
taillight violation, the odor of marijuana, and Jackson’s ad-
mission that he had smoked earlier, the officer asked Jackson
whether he was “safe to drive home.” Jackson said he was.
His speech was not slurred during the interaction, and his re-
sponses were appropriate.
After questioning Jackson about the marijuana smell, the
officer asked Jackson to wait for a moment so he could write
a warning, to turn the car off, and to hand over the keys. Jack-
son complied. The officer said he would search Jackson and
the car. He asked if there were “guns, knives, drugs, [or]
bombs” in the car and told Jackson he could “cut breaks and
warnings” if Jackson and the passenger were “honest with
[him] up front.” Jackson told him none of those items were in
the car. The officer then asked Jackson to get out and walk to
the back of the car, cautioning Jackson not to reach for his
waistband.
Before Jackson exited the car, the passenger asked why the
officer planned to search the car. The officer told her he could
smell marijuana and explained the potential violation of Illi-
nois law. He was ready to write up a warning for the mariju-
ana violation, the officer told them, but he also said he was
prepared to make an arrest if Jackson and the passenger were
uncooperative and refused to get out of the car and permit a
“probable cause” search.
In response to this line of conversation, Jackson acknowl-
edged he had some “weed” and handed the officer a tied-off
plastic baggie that appeared to contain about two grams of
unburnt marijuana. The officer explained “having weed like
th[at was] illegal inside the confines of a vehicle” under Illi-
nois law. 4 Nos. 23-1708 & 23-1721
The officer again asked Jackson to step out of the car. Jack-
son complied and walked calmly to the back of the car. The
officer intended to pat Jackson down and conduct a field so-
briety test. Jackson placed his hands on the trunk. The officer
turned to put his flashlight in its holster, and Jackson ran. A
few seconds into his flight, Jackson tripped, and a gun fell
from his waistband. The officer caught up with Jackson, re-
strained him so Jackson could not reach the firearm, and ar-
rested him.
Jackson moved to suppress evidence of the gun, arguing
it was the product of an unlawful search and seizure. The dis-
trict court held a suppression hearing at which the officer tes-
tified as the only witness, and the government presented his
bodycam video. The facts and testimony at the hearing
tracked the video evidence.
The district court denied Jackson’s motion. After the
court’s decision, Jackson entered a conditional guilty plea in
case no. 23-1721, reserving his right to appeal the district
court’s denial of his motion to suppress. See FED. R. CRIM. P.
11(b). The district court sentenced Jackson to 72 months’ im-
prisonment. In case no. 23-1708, the district court revoked
Jackson’s supervised release for, among other things, unlaw-
fully possessing a firearm.
II
Jackson now appeals the denial of his motion to suppress
the gun. We review the district court’s factual findings “for
clear error, while legal conclusions and mixed questions of
law and fact are reviewed de novo.” [CITATION] “A factual finding is clearly er-
roneous only if, after considering all the evidence, [the court] Nos. 23-1708 & 23-1721
[SEGMENT 9]
cannot avoid or ignore a definite and firm conviction that a
mistake has been made.” Id. (cleaned up).
This court gives “special deference to credibility determi-
nations and will uphold them unless completely without
foundation in the record.” [CITATION] (cleaned up). That is in part because
the factual determinations underlying a district court’s credi-
bility determinations are uniquely within the district court’s
competence, and this court reviews those findings for clear
error. See [CITATION]
When applying the Fourth Amendment to law enforce-
ment action, the Supreme Court has repeatedly confirmed
that “the ultimate touchstone of the Fourth Amendment” in
evaluating law enforcement action is “reasonableness.”
[CITATION] “‘Reasonable-
ness, in turn, is measured in objective terms by examining the
totality of the circumstances.’” [CITATION]
Jackson contends that evidence of the firearm should have
been suppressed because the officer did not have probable
cause to search him or the car. He argues that the officer relied
on the smell of unburnt marijuana, which he contends does
not provide probable cause to search a vehicle under Illinois
law.
“Warrantless searches are per se unreasonable under the
Fourth Amendment, subject to only certain exceptions.”
[CITATION] Relevant here is the ====== Anonymized Part of a Court Ruling ======
6 Nos. 23-1708 & 23-1721
automobile exception, which allows authorities to search a car
without a warrant if they have probable cause. See [CITATION]. “Probable cause to search a vehicle exists
when, based on the totality of the circumstances, ‘there is a
fair probability that contraband or evidence of a crime will be
found in a particular place.’” [CITATION] (quoting [CITATION]);
see [CITATION].
The district court correctly ruled that evidence of the fire-
arm should not have been suppressed. The officer had proba-
ble cause to search Jackson and the vehicle, whether based on
the totality of the circumstances or because of the smell of un-
burnt marijuana alone.
A
Jackson is incorrect that the only evidence in support of
probable cause when the officer announced an intent to
search and ordered him out of the vehicle was the odor of un-
burnt marijuana. The totality of the circumstances provided
probable cause to search Jackson and the vehicle.
Consider the circumstances of the traffic stop. The officer
pulled Jackson over because he had been driving in the dark
with unlit head and taillights, a state law violation, see 625 ILL.
COMP. STAT. ANN. 5/12-201. After pulling over the car, the of-
ficer asked for license and registration. But Jackson did not
have his license, another state law violation. See id. at 5/6-101
(prohibiting driving without a valid license in Illinois). Nos. 23-1708 & 23-1721
At any point after this lawful stop, the officer could have
ordered Jackson out of the vehicle, even if the officer “ha[d]
no reason to suspect foul play.” [CITATION]. But the officer did suspect further is-
sues—he smelled the odor of unburnt marijuana coming from
the car. Although possession of marijuana in certain amounts
is legal in Illinois, the smell of unburnt marijuana coming
from the car signaled that Jackson had marijuana in the car in
an improper container, another violation of Illinois’s law. See
id. at 5/11-502.15(b), (c).
The circumstances also could suggest that Jackson was
driving while impaired. See id. at 5/11-501. When questioned
about the smell, Jackson admitted to smoking marijuana ear-
lier. And although Jackson responded to questions and did
not seem impaired to the officer, that officer knew that failure
to follow the simplest of traffic laws—like turning on your
lights just after midnight—could indicate driving under the
influence. Cf. [CITATION] (citing [CITATION]) (holding where a driver admits to drinking alcohol
and an officer sees an open alcohol container in the car, the
officer had probable cause to search the driver and car). Thus,
a search of Jackson and the car was warranted as possibly
providing further evidence of criminal conduct.
Jackson responds that the officer’s credibility should be
questioned because he failed to conduct field sobriety tests or
note any suspicion of impairment in his police report. But
Jackson’s speculation does not overcome the officer’s credible
testimony that he intended to perform such a test. See, e.g.,
[CITATION] (“Be-
cause the resolution of a motion to suppress is a fact-specific 8 Nos. 23-1708 & 23-1721
inquiry, we give deference to credibility determinations of the
district court, who had the opportunity to listen to testimony
and observe the witnesses at the suppression hearing.”). In
any event, the officer’s subjective intent does not control the
analysis. See, e.g., [CITATION], 519 U.S. at 38 (“As we made clear
in [CITATION], ‘the fact that [an] officer does not have the state of
mind which is hypothecated by the reasons which provide the
legal justification for the officer’s action does not invalidate
the action taken as long as the circumstances, viewed objec-
tively, justify that action.’”) (quoting [CITATION]). see also [CITATION].
Jackson further argues it was impossible for the officer to
smell two grams of unburnt marijuana. But Jackson provides
no evidence that the officer lied about smelling the marijuana.
To rebut the officer’s testimony and the district court’s
credibility finding, Jackson must show that the district court
clearly erred in determining that the officer smelled unburnt
marijuana and was able to differentiate that odor from burnt
marijuana. [CITATION]. And he must explain why
the district court’s implicit determination that the officer’s tes-
timony was credible—a determination this court upholds
“unless completely without foundation in the record”—
should be reversed. [CITATION]. Jackson has done
neither. The officer’s testimony is supported by Jackson turn-
ing over a baggie of unburnt marijuana during the traffic stop.
Under the totality of these circumstances, the officer had
probable cause to search Jackson and the car.
Jackson offers other arguments, but they are not persua-
sive. He says a similarity between the odors of unburnt mari-
juana and legal hemp undercuts the finding of probable
cause. This argument was not raised below and is thus Nos. 23-1708 & 23-1721
waived. See [CITATION]; see also [CITATION] (“‘We have repeatedly held that a party
that fails to press an argument before the district court waives
the right to present that argument on appeal.’” (citing [CITATION])).
He also offers additional scenarios that he says might
cause a car to emit an odor of unburnt marijuana. Yet, law
enforcement does not need to rule out every innocent expla-
nation for probable cause to be established. As the Supreme
Court has explained, “probable cause requires only a proba-
bility or substantial chance of criminal activity, not an actual
showing of such activity.” [CITATION] (internal
citations omitted). “By hypothesis, therefore, innocent behav-
ior frequently will provide the basis for a showing of probable
cause; to require otherwise would be to sub silentio impose a
drastically more rigorous definition of probable cause than
the security of our citizens demands.” Id.
B
Irrespective of the totality of the circumstances, Jackson
argues that only the smell of unburnt marijuana supported
the probable cause determination. Because Illinois has legal-
ized marijuana for adult recreational use, he contends that
smell alone cannot provide probable cause for a search or sei-
zure. We consider this argument in the context of current law.
The smell of marijuana alone justifies a Fourth Amend-
ment search or seizure. See [CITATION] (noting the
smell of “burnt marijuana” provides probable cause to search
an entire vehicle during a traffic stop); see also [CITATION] (holding the smell of
“fresh marijuana” coming off a person supports probable
====== End of Court Ruling ====== 10 Nos. 23-1708 & 23-1721
cause to arrest that person); [CITATION] (“A police officer who smells mariju-
ana coming from a car has probable cause to search that car.”
(citing [CITATION])). Further, the possession of marijuana is illegal under
federal law. See 21 U.S.C. §§ 812 (c)(10), 844. Jackson responds
that the government failed to raise that point in the district
court and thus waived it. The federal marijuana prohibition
was mentioned twice below: (1) the district court and defense
counsel referenced a potential difference between the state
and federal regulations on marijuana in conversation, and (2)
the prosecutor noted in argument on the suppression motion
the court’s point that marijuana “remains something that can
give rise to probable cause.”
Even if we conclude that the government waived this
point, Jackson’s case is not impacted by it. The officer still had
probable cause to search Jackson and the car. While Illinois
has legalized marijuana for recreational use in some circum-
stances, as the officer said to Jackson and the passenger dur-
ing the traffic stop, the state retains laws restricting the pack-
aging of and use of marijuana. See, e.g., 625 ILL. COMP. STAT.
ANN. 5/11-501 (prohibiting using marijuana to the point of in-
toxication before or while driving, i.e., driving under the in-
fluence); id. at 5/11-502.15(b), (c) (prohibiting transporting
marijuana in certain containers in a vehicle). 1 Jackson did not
comply with that requirement, so the smell of unburnt mari-
juana provides probable cause for a violation of that state law.
[SEGMENT 10]
1 Illinois statutes and cases use the term “cannabis,” the equivalent of
“marijuana” under federal law. This opinion uses the term “marijuana”
throughout, except when quoting Illinois cases. Nos. 23-1708 & 23-1721
Interpretation of those state laws by Illinois courts sup-
ports this reading. In [CITATION], the Fourth District of
the Illinois Appellate Court held that “an officer who smells
cannabis in a vehicle he has just stopped is almost certain to
discover a violation of the [Illinois] Vehicle Code because the
law clearly states that when cannabis is transported in a pri-
vate vehicle, the cannabis must be stored in a sealed, odor-proof
container—in other words, the cannabis should be undetect-
able by smell by a police officer.” [CITATION] (emphasis in original). The “smell of raw can-
nabis, without any corroborating factors, is [thus] sufficient to
establish probable cause to search a person’s vehicle” under
state law. Id.; see also [CITATION] (holding that
the odor of unburnt cannabis constituted probable cause for
search of vehicle, as reasonable person in officer’s position
would believe “someone in the vehicle was at least transport-
ing cannabis in a manner violating the Vehicle Code”); [CITATION] (stating
there was sufficient probable cause for vehicle search based
on police-trained canine’s positive alert, where canine trained
to alert to drugs including marijuana). 2
The Second District of the Illinois Appellate Court has ar-
rived at a similar conclusion. E.g., [CITATION] (“the
smell of cannabis in a car still forms the basis for probable
cause” post-legalization); [CITATION] (“the odor of raw cannabis emanating
2 This opinion uses the term “unburnt” to refer to “raw” marijuana.
We read the terms to mean the same thing. 12 Nos. 23-1708 & 23-1721
from the vehicle when [the officer] first approached gave rise
to probable cause to search the vehicle”).
One Illinois case, heavily relied on by Jackson, is not in ac-
cord with other Illinois decisions. [CITATION]. In [CITATION], the Third Dis-
trict of the Illinois Appellate Court held that “the smell
of … burnt cannabis, without any corroborating factors, is not
enough to establish probable cause to search the vehicle.” Id.
[CITATION] stated that Illinois’s legalization of marijuana invali-
dated the Illinois Supreme Court’s decision in [CITATION]. See [CITATION]. In
[CITATION], the Illinois Supreme Court held that “distinctive odors”
like burning marijuana “can be persuasive evidence of prob-
able cause” without additional corroborating evidence. [CITATION].
Even if [CITATION] is credited—notwithstanding [CITATION] and
[CITATION]—it would not compel the conclusion that there was no
probable cause here. [CITATION] is distinguishable, and we do
not defer to Illinois courts on what constitutes probable cause
under the Fourth Amendment. The conclusion in [CITATION]
that probable cause did not exist was limited to the officer
smelling burnt marijuana. The defendant in [CITATION] told law
enforcement that “someone (he did not state that it was him-
self) had smoked in the vehicle ‘a long time ago[.]’” [CITATION]. “There was no reason for the officer to think
that the defendant was currently smoking cannabis in the
car.” Id. And “the smell of burnt cannabis may have lingered
in the defendant’s car or on his clothing.” Id. The Third Dis-
trict’s similar decision in [CITATION], also centered on
the smell of burnt marijuana. [CITATION],
appeal allowed, [CITATION]. And in [CITATION], the Nos. 23-1708 & 23-1721
court stated, “there was no odor of raw cannabis nor any
other factor indicative of improperly packaged cannabis or an
unlawful amount of it in the vehicle.” [CITATION] at 1181.
The smell of unburnt marijuana outside a sealed container
independently supplied probable cause and thus supported
the direction for Jackson to step out of the car for the search.
III
The central issue in this case is the legality of the officer
ordering Jackson out of the car for a search. [CITATION] tells us
that after a lawful stop, an officer can order occupants out of
a car, see [CITATION] at 111, and the totality of circumstances here
supported probable cause for a search. In any event, the smell
of unburnt marijuana provided probable cause. After exiting
the vehicle, Jackson chose to run, where a firearm fell from his
pants. The district court correctly concluded that evidence of
the gun need not be suppressed.
For these reasons, we AFFIRM the district court’s denial of
Jackson’s motion to suppress.
2024 IL App (2d) 230226-U
No. 2-23-0226
Order filed April 18, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 20-CF-1689
)
DARIELN A. MORAN SANCHEZ, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Presiding Justice McLaren and Justice Kennedy concurred in the judgment.
ORDER
¶1 Held: We agree with appellate counsel that there is no potentially meritorious basis for
appeal. Therefore, we grant counsel’s motion to withdraw, and we affirm the trial
court.
¶2 Defendant, Darieln A. Moran Sanchez, appeals from the judgment of the circuit court of
Kane County finding him guilty of drug offenses. The Office of the State Appellate Defender has
moved to withdraw, claiming that defendant has no potentially meritorious basis for appeal. We
grant the appellate defender’s motion to withdraw, and we affirm.
¶3 I. BACKGROUND 2024 IL App (2d) 230226-U
¶4 Following a bench trial, defendant was found guilty of one count of unlawful possession
with intent to deliver 400 grams or more, but less than 900 grams, of a substance containing
methamphetamine (720 ILCS 646/55(a)(2)(E) (West 2020)) and one count of unlawful possession
with intent to deliver 900 grams or more of a substance containing cocaine (720 ILCS
570/401(a)(2)(D) (West 2020)).
¶5 At trial, the State presented evidence that on September 5, 2020, a DEA agent was
conducting surveillance on defendant. He observed defendant, Nancy Navejas, and two children
leave a hotel in Carol Stream and drive off in a white Ford Explorer. The agent followed the
vehicle onto Interstate 90, where other law enforcement officers pulled it over. The vehicle was
searched, and a written lease for residential property was found in the glove compartment. The
lease named Felipe Ocampo as landlord and defendant and Navejas as tenants. The glove
compartment also contained a utility bill in defendant’s and Navejas’s names for the leased
property. A brick-shaped object wrapped in duct tape and a sealed baggie containing what
appeared to be methamphetamine were recovered from under the third-row seat, which had been
folded down to increase the storage capacity of the rear cargo compartment. It was stipulated that
the brick contained 1005 grams of a substance containing cocaine and that the sealed baggie
contained 446.8 grams of a substance containing methamphetamine.
¶6 Roberto Gutierrez testified that on September 5, 2020, he was a sergeant with the Illinois
State Police and was assigned to the interdiction unit. He was raised in a household where both
parents spoke Spanish, and he was fluent in that language, having spoken it his whole life. Over
the past 20 years in law enforcement, he conducted hundreds of Spanish interviews with suspects
and witnesses. Gutierrez testified that he interviewed defendant in Spanish in the presence of other
law enforcement officers. Defendant admitted that he was aware that there was methamphetamine
2024 IL App (2d) 230226-U
and cocaine in the Explorer. Defendant also indicated that he had paid someone for the use of the
Explorer. Defendant said that he had met with Ocampo, who put the drugs in the vehicle.
Defendant planned to take the drugs to his home in Minnesota, where someone would retrieve
them and pay defendant $1500. During the interview, Gutierrez submitted written questions to
defendant in Spanish, and defendant provided written answers in Spanish. Gutierrez translated the
questions and answers, which contained admissions similar to those defendant made during the
[SEGMENT 11]
interview. Defendant also prepared a brief written statement in Spanish.
¶7 Derek Cowan testified that he was a master sergeant with the Illinois State Police and was
director of the North Central Narcotics Task Force. Cowan joined the task force in 2014. He had
received training in narcotics investigations and had participated in over 1000 such investigations
during his career. Cowan testified that he was familiar with the street value of various drugs. The
trial court qualified Cowan as “an expert in the area of narcotics detection and transactions.”
Cowan testified that, in his opinion, the drugs recovered from the Ford Explorer were packaged
for distribution.
¶8 Based on this evidence, the trial court found defendant guilty of the offenses described
above. The court sentenced defendant to concurrent prison terms of 17 years for possession of
cocaine with intent to deliver and 12 years for possession of methamphetamine with intent to
deliver. Defendant filed a timely notice of appeal, and the trial court appointed the appellate
defender to represent him.
¶9 II. ANALYSIS
¶ 10 Per [CITATION], and [CITATION],
the appellate defender moves to withdraw as counsel. In her motion, counsel states that she read
the record and found no issue of arguable merit. Counsel further states that she advised defendant
2024 IL App (2d) 230226-U
of her opinion. Counsel supports her motion with a memorandum of law providing a statement of
facts and an argument as to why this appeal presents no issue of arguable merit. We advised
defendant that he had 30 days to respond to the motion. That time has passed, and defendant has
not responded.
¶ 11 Counsel indicates that she considered the following five issues for appeal: (1) whether
defendant validly waived his right to a jury trial, (2) whether the State laid a proper foundation for
Cowan’s testimony as an expert in the field of narcotics detection and transactions, (3) whether
the trial court erred in accepting Gutierrez’s testimony concerning his ability to translate
defendant’s inculpatory statements, (4) whether the evidence was sufficient to sustain defendant’s
convictions, and (5) whether the trial court abused its discretion in sentencing defendant to
concurrent prison terms of 12 years for possession of methamphetamine with intent to deliver and
17 years for possession of cocaine with intent to deliver. However, counsel concludes that none
of these issues has arguable merit. We agree.
¶ 12 First, we consider whether defendant validly waived his right to a jury trial. The controlling
legal principles are as follows:
“ ‘The right to a trial by jury is a fundamental right guaranteed by our federal and
state constitutions.’ [CITATION] Nevertheless, a defendant can waive his right to a jury
trial, but for a waiver to be valid, it must be knowingly and voluntarily made. [CITATION]
Under section 115-1 of the Code of Criminal Procedure of 1963, a jury waiver must be in
writing. [CITATION]
The trial court has a duty to ensure that the defendant waived his right to a jury trial
‘expressly and understandingly.’ [CITATION] ‘However, a trial court need not give any
specific admonition or advice for a defendant to make an effective jury waiver.’ [CITATION]
2024 IL App (2d) 230226-U
‘Whether a jury waiver is valid cannot be determined by application of a precise formula,
but rather turns on the particular facts and circumstances of each case.’ [CITATION.] The
statutory requirement for a written jury waiver does not ‘define or give substance to the
constitutional right to choose whether to have a jury trial. Rather, a written jury waiver
merely memorializes the defendant’s decision, allowing a court to review the record to
ascertain whether a defendant’s jury waiver was made understandingly.’ [CITATION.]”
[CITATION], ¶¶ 106-07.
¶ 13 Here, defendant signed a jury waiver written in Spanish. At a hearing at which he had the
assistance of an interpreter, defendant confirmed that he understood the difference between a
bench trial and a jury trial and that he was giving up the right to have a jury determine his guilt or
innocence. He also confirmed that he was not under the effects of drugs or alcohol and that no
threats or promises had been made to induce him to waive his right to a jury. Therefore, we find
no arguably meritorious basis for challenging defendant’s jury waiver.
¶ 14 Second, we consider whether the State laid a proper foundation for Cowan’s testimony as
an expert in narcotics detection and transactions. As we have recently observed:
“Generally, a witness may testify as an expert if he or she possesses ‘experience and
qualifications [that] afford him [or her] knowledge that is not common to laypersons.’
[CITATION.] *** There is no ‘predetermined formula’ specifying how an expert acquires
the knowledge that renders him or her an expert. (Internal quotation marks omitted.)
[CITATION.] Such knowledge may be acquired through study, practical experience, training,
education, or research. [CITATION.] Any weakness in the basis of an expert’s opinion goes
to the weight of the testimony; it should not affect its admissibility if the facts, data, or
opinions are reasonably relied upon by experts in the relevant field. [CITATION.] The
2024 IL App (2d) 230226-U
decision to admit expert testimony is a matter within the sound discretion of the trial court
and will not be reversed absent an abuse of that discretion. [Citation.] An abuse of
discretion occurs only if no reasonable person could agree with the trial court. [Citation.]”
[CITATION], ¶ 34.
¶ 15 Cowan’s testimony established that he had extensive training and experience in narcotics
investigations. There is no arguably meritorious basis for challenging the trial court’s decision to
qualify him as an expert witness.
¶ 16 Third, we consider whether the trial court erred in accepting Gutierrez’s testimony
concerning his ability to translate defendant’s inculpatory statements. We note that an individual
is qualified to serve as an interpreter for a defendant at trial if the defendant can understand that
individual and the individual can understand the defendant. 725 ILCS 140/1 (West 2022). We
see no reason why a more stringent standard should apply to a witness’s translation of a defendant’s
out-of-court statements. Gutierrez testified that he was fluent in Spanish, having spoken it his
whole life, and had conducted hundreds of interviews in Spanish. He testified that he had no
trouble understanding defendant. Likewise, defendant’s written answers to Gutierrez’s written
questions suggest that defendant had no difficulty understanding Gutierrez. Accordingly, there is
no potentially meritorious basis for arguing that the trial court erred in accepting Gutierrez’s
testimony about his ability to translate defendant’s statements.
¶ 17 Fourth, we consider whether the evidence was sufficient to sustain defendant’s convictions.
In reviewing a challenge to the sufficiency of the evidence in a criminal proceeding, “ ‘the relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’ ” (Emphasis in original.) [CITATION] (quoting Jackson
2024 IL App (2d) 230226-U
v. Virginia, 443 U.S. 307, 319 (1979)). Moreover, “a reviewing court will not substitute its
judgment for that of the trier of fact on issues involving the weight of evidence or the credibility
of witnesses.” [CITATION]. Here, the State was
required to prove that defendant (1) knowingly possessed (2) with intent to deliver (3) 400 grams
or more, but less than 900 grams, of a substance containing methamphetamine and 900 grams or
more of a substance containing cocaine. See 720 ILCS 646/55(a)(2)(E) (West 2020); 720 ILCS
570/401(a)(2)(D) (West 2020).
¶ 18 It is well established that
“[c]ontrolled substances discovered on premises, or in a vehicle, under the defendant’s
control and in a place where he could have been, or should have been, aware of them give
rise to an inference of knowledge and possession by [the] defendant which may be
sufficient to sustain a conviction for unlawful possession of controlled substances.” [CITATION].
Here, substances stipulated to be methamphetamine and cocaine were found under defendant’s
control, beneath a seat that had been folded down to enlarge the rear cargo compartment. Based
on the location of the illicit substances, defendant should have been aware of their presence in the
vehicle. In any event, defendant admitted that he knew that Ocampo put the drugs in the vehicle.
Moreover, not only did Cowan testify that the drugs were packaged to distribute, but defendant
admitted that he planned to take the drugs to Minnesota, where someone would retrieve them and
pay him $1500. This was sufficient evidence of intent to deliver. Finally, the quantity of the drugs
was stipulated: the methamphetamine weighed 446.8 grams, and the cocaine weighed 1005 grams.
Thus, there is no arguably meritorious basis for challenging the sufficiency of the evidence.
2024 IL App (2d) 230226-U
[SEGMENT 12]
¶ 19 Fifth, we consider whether the trial court abused its discretion in sentencing defendant to
concurrent prison terms of 12 years for possession of methamphetamine with intent to deliver and
17 years for possession of cocaine with intent to deliver. As we have recently observed:
“We review for an abuse of discretion a trial court’s sentencing decision. [Citation.]
The sentencing court has wide latitude in imposing a sentence, so long as it does not ignore
relevant mitigating factors or consider improper aggravating factors. [Citation.] We
accord ‘great deference to a sentence within the appropriate sentencing range.’ [Citation.]
However, we will find that a court abused its discretion, even if the sentence imposed is
within the statutory range, if the sentence does not reflect adequate consideration of
relevant mitigating factors or the constitutionally mandated objective of rehabilitation, or
if it is highly disproportionate to the offense and greatly diverges from the spirit and
purpose of the law. [Citation.] *** We may not substitute our judgment for that of the
sentencing court simply because we would have weighed the factors differently [Citation.]”
[CITATION], 2023 IL App (2d) 220066, ¶ 73.
¶ 20 Here, the record does not show that the trial court ignored any proper factors or considered
any improper ones. Unlawful possession with intent to deliver 400 grams or more, but less than
900 grams, of methamphetamine is punishable by a prison term of not less than 12 years and not
more than 50 years. 720 ILCS 646/55(a)(2)(E) (West 2020). Defendant received the minimum
sentence. Unlawful possession with intent to deliver 900 grams or more of cocaine is punishable
by a prison term of not less than 15 years and not more than 60 years. 720 ILCS 570/401(a)(2)(D)
(West 2020). Defendant’s sentence of 17 years was only 2 years above the minimum and was 43
years below the maximum. Thus, there is no arguably meritorious basis for claiming that the trial
court abused its discretion in imposing these sentences.
[CITATION]
¶ 21 III. CONCLUSION
¶ 22 After examining the record, the motion to withdraw, and the memorandum of law, we agree
with counsel that this appeal presents no issue of arguable merit. Thus, we grant the motion to
withdraw, and we affirm the judgment of the circuit court of Kane County.
¶ 23 Affirmed.
====== End of Court Ruling ======
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
2023 IL App (2d) 210697
No. 2-21-0697
Opinion filed September 28, 2023
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 20-CF-119
)
TERRILL HARRIS JR., ) Honorable
) C. Robert Tobin III,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE MULLEN delivered the judgment of the court, with opinion.
Presiding Justice McLaren concurred in the judgment and opinion.
Justice Jorgensen specially concurred, with opinion.
OPINION
¶1 Following a jury trial in the circuit court of Boone County, defendant, Terrill Harris Jr.,
was convicted of possession of a controlled substance with intent to deliver (720 ILCS
570/401(a)(2)(B) (West 2020)) and possession of a controlled substance (id. § 402(a)(2)(B)) (the
latter conviction was eventually determined to merge into the former). He was sentenced to 15
years’ imprisonment. He now appeals, raising four issues. First, he contends that the police lacked
probable cause when they searched his vehicle. Second, he argues that the trial court erred in
allowing a police officer to opine regarding defendant’s intent to distribute the controlled substance
found in his vehicle and that this rendered the evidence insufficient to sustain his conviction. Third,
2023 IL App (2d) 210697
he asserts that the State failed to prove he had the specific intent to distribute cocaine. Fourth,
defendant claims that his sentence was excessive and an abuse of discretion. For the reasons that
follow, we affirm.
¶2 I. BACKGROUND
¶3 Defendant was indicted on two counts: count I alleged possession of a controlled substance
(cocaine) with intent to deliver (id. § 401(a)(2)(B)) and count II alleged simple possession of a
controlled substance (cocaine) (id. § 402(a)(2)(B)). Prior to trial, the trial court considered several
motions in limine. The trial court first considered a pair of such motions brought by both parties
concerning whether a police officer, Sergeant Chris Washburn with the Belvidere Police
Department, could testify as to defendant’s intent to distribute the controlled substance in his
possession. The trial court observed that the “average juror is not going to know what roughly 250
grams of cocaine means primarily because most people really don’t have much experience ***
with cocaine.” It then ruled that, subject to a proper foundation, Washburn would be allowed to
offer opinion testimony as to the implications of the weight of the cocaine regarding defendant’s
intent to deliver.
¶4 The State also moved, in limine, to allow testimony that the reason the police searched
defendant’s vehicle is that they detected an odor of cannabis emanating from it. Defense counsel
stated that he had “[n]o objection with regards as to why they searched the vehicle.” He continued,
“[M]arijuana is not illegal so that alone would not necessitate a search of a vehicle.” The trial court
granted this motion, acknowledging that “7 grams of suspect[ed] cannabis on July 3rd of 2020
would not necessarily have been illegal,” at least if it were stored properly. The trial court,
apparently commenting on the lack of prejudice in allowing this evidence, observed that the
legalization of cannabis had not been particularly controversial in Illinois.
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2023 IL App (2d) 210697
¶5 At trial, the State first called James Bolin, a trooper with the Illinois State Police. On July
3, 2020, at about 9:30 a.m., he was travelling west on Interstate 90 (I-90) in Boone County. Bolin
stated that he observed a black Chevrolet sport utility vehicle (SUV) “following a vehicle in front
of it pretty closely.” He paced the SUV at 78 miles per hour in a 70 mile-per-hour speed zone. He
checked the registration of the SUV and learned that it was registered to defendant. Bolin initiated
a traffic stop. He made contact with the vehicle’s occupants—“two people and one dog.” Bolin
testified that he “smelled a strong odor of burnt cannabis coming from the vehicle.”
¶6 Bolin informed defendant that he would be “searching his vehicle based on the odor of
burnt cannabis.” At the time, Bolin was with Trooper Greg Melzer, who was acting as Bolin’s
field training officer. Two other troopers (Weber and Smalec) arrived and assisted in the search.
Bolin testified that he observed Smalec hold up a black plastic bag, which contained a substance
suspected to be cocaine. Defendant was taken into custody and transported to a maintenance
facility, which Bolin referred to as “M-7.”
¶7 Melzer was the State’s next witness. Melzer testified that on July 3, 2020, he was acting as
a field training officer for Bolin. They were watching westbound traffic on I-90. They stopped an
SUV. He and Bolin approached. Melzer stated that he smelled cannabis coming from the vehicle.
He helped search the vehicle. The passenger had an outstanding warrant, and Bolin was addressing
that issue. Smalec located a black plastic bag that contained a resealable plastic bag containing a
“white rock-like substance.” Melzer suspected that the substance was cocaine. The black bag was
recovered from a duffel bag containing men’s clothing.
¶8 After locating the cocaine, the officers placed defendant under arrest. He was then
transported to a “processing room” at a maintenance facility known as “M-7.” Melzer was not
present during the interrogation of defendant.
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2023 IL App (2d) 210697
¶9 The State then called Special Agent James Normoyle. He is assigned to the Stateline Area
Narcotics Team (SLANT). On July 3, 2020, Bolin and Melzer requested that Normoyle assist in
the interrogation of defendant. Normoyle read defendant his Miranda rights (see Miranda v.
Arizona, 384 U.S. 436 (1966)), and defendant agreed to speak with the police.
¶ 10 Defendant told Normoyle that he was travelling from Chicago to Duluth, Minnesota.
Defendant admitted that he had a black and gray duffel bag with him and that he had been in
possession of it for the entire trip. Defendant stated that he had stolen the bag containing the
cocaine. Defendant related that he had been in Chicago when he observed an individual place the
bag behind a dumpster. Defendant took the bag. Defendant stated that the bag contained a white
substance that he believed to be either cocaine or methamphetamine. Normoyle testified,
“[Defendant] said he was bringing it back to Minnesota and that he had a money problem and
thought he could sell it is the way I understood it.” Normoyle added, “I don’t remember his exact
verbiage, but I believe he indicated that he could make money off that item.” When asked,
defendant stated that he did not know “if he could make $200 off of it.” Defendant did not state
how much he thought he could make. Defendant added that the female riding with him had nothing
to do with the substance the police recovered.
¶ 11 The parties then stipulated that Daniel Bryant, a forensic scientist with the Illinois State
Police Crime Laboratory, analyzed the substance recovered from the vehicle defendant was
operating. Bryant would testify that the substance was cocaine and that it weighed 248.6 grams.
¶ 12 The State also called Washburn. He is assigned to the Metro Narcotics Unit and serves as
its supervisor. He has held this position since 2018. The unit “investigate[s] drug crimes at street-
level and mid-level.” Washburn related to the trial court his training and experience, and the court
recognized Washburn as an expert in the field of narcotics.
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2023 IL App (2d) 210697
¶ 13 Washburn testified that a typical user would ingest about a tenth of a gram of cocaine per
“line” or a smaller amount, “a quarter of that,” in a “bump.” Cocaine costs about $100 per gram.
Defendant was in possession of 248.6 grams of cocaine. Washburn opined that this was “not
consistent with the amount of cocaine that somebody would have for personal use.” He testified
that he had spoken to “hundreds of people” and asked them about “drug sales and drug trends in
our community.” He has asked people what the largest amount of cocaine was that they had ever
purchased for themselves. He stated, “[T]he most I’ve ever been told was 3.5 grams, which is
known on the street as an eight-ball because it’s one-eighth of an ounce of cocaine.” Someone
using a gram per day would be an “extremely heavy cocaine user.” A quarter of a kilogram of
cocaine would sell for about $8000. Thus, in Washburn’s opinion, defendant possessed the 248.6
grams of cocaine with the intent to deliver.
¶ 14 On cross-examination, Washburn agreed that other factors exist that are relevant to
determining “whether or not cocaine is going to be sold on the street level.” For example, the
presence or absence of a scale “may be one thing that would be considered.” Also, when asked
whether he would expect there to be “baggies” present, he replied, “[A]ssuming that they weren’t
going to sell the whole thing at a marked-up profit ***, then I might look for bags.” A ledger might
also be present. None of these things were present in defendant’s vehicle, nor were there any
hidden compartments in the vehicle. The criminal history of the person in possession of the
contraband is also relevant.
¶ 15 On redirect-examination, Washburn clarified that whether he would expect to find things
like baggies, scales, ledgers, or hidden compartments depended on what point in the chain of
distribution the arrest at issue occurred. He explained that his opinion that defendant possessed the
cocaine with the intent to deliver did not mean that defendant would necessarily be the individual
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2023 IL App (2d) 210697
selling it on the streets. Rather, defendant may have been delivering it to another person and
“ultimately it would end up being distributed on the street.”
¶ 16 After Washburn’s testimony concluded, the State rested. Defendant made a motion for a
directed finding, which was denied. Defendant then elected to not testify and did not call any
witnesses. After submitting an exhibit, the defense also rested. The jury found defendant guilty on
both charged counts. Defendant filed a motion for a new trial, which was denied.
¶ 17 At the sentencing hearing, defense counsel read a letter from defendant’s mother and
defendant elected not to make a statement in allocution. The State asserted that the sentencing
range for possession of cocaine with intent to deliver was 9 to 40 years’ imprisonment and that the
mid-point of that range was 24½ years. Defendant possessed 248.6 grams of cocaine, which was
near the midpoint of the amount listed in the statute defining possession of cocaine with intent to
deliver (100 to 400 grams). Moreover, the State argued, defendant had a history of criminal
behavior that put the public at risk, including two offenses of driving while intoxicated, a battery,
a domestic battery, and a misdemeanor weapons offense. The State asked for a sentence of 22
years’ imprisonment. Defense counsel countered that none of defendant’s prior convictions were
felonies. Further, defendant had substantial ties to his family, including his two children. Counsel
further noted the cost of incarcerating defendant. Counsel requested a minimum sentence.
¶ 18 The trial court first noted the harm 248 grams of cocaine could cause. It noted the relevance
of the cost of incarceration as well as the nature of the offense. It observed that the amount of
cocaine defendant was convicted of possessing was in the middle of the statutory range. The trial
court stated that while defendant had a “history of criminal activity,” it had “seen worse.” It further
found that there was a need to deter others from committing similar offenses. The trial court found
in mitigation that defendant’s offense did not cause or threaten serious harm (beyond that which
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2023 IL App (2d) 210697
is ordinarily inherent in such drug offenses) and that defendant did not contemplate that it would.
The trial court stated that if it “went strictly with just the weight,” a sentence of 24½ years would
be appropriate. The trial court then concluded that a sentence of 15 years’ imprisonment was
warranted, emphasizing that this was in the “lower quarter percentile of the range.” The trial court
also found that count II (simple possession) merged into count I (possession with intent to deliver).
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant raises four issues. First, he contends that the police searched his
vehicle without probable cause. Second, he complains that the trial court erred in allowing
Washburn to testify as an expert in the field of narcotics and that, in turn, the evidence is
insufficient to sustain his conviction. Third, he argues that the State failed to introduce any
evidence that he had the “specific intent to distribute any particular controlled substance or
amount.” Fourth, he asserts that his sentence is excessive. We will address these issues in the order
in which they are presented in defendant’s opening brief. For the reasons that follow, we affirm.
¶ 22 A. Probable Cause
¶ 23 Defendant first argues that the police lacked probable cause to search his vehicle based
solely on the fact that they detected an odor of burnt cannabis emanating from it (which is not in
dispute). We review a trial court’s decision on a suppression motion using a two-part standard of
review. People v. Hill, 2020 IL 124595, ¶ 14. We apply the manifest-weight-of-the-evidence
standard to the trial court’s findings of fact, and we review de novo its ultimate ruling on whether
suppression is appropriate. Id.
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2023 IL App (2d) 210697
¶ 24 Before proceeding further, we note that the State asserts that defendant has forfeited this
issue. 1 The State correctly notes that defendant neither objected at (or prior to) trial regarding the
admission of the fruits of the search of his vehicle nor did he raise this issue in a posttrial motion
(in his posttrial motion, defendant did raise the scope of the search but did not contest the
proposition that the odor of cannabis provided probable cause). Indeed, to preserve a claim
regarding the suppression of evidence, a defendant must raise it in a motion to suppress as well as
a posttrial motion. People v. Johnson, 334 Ill. App. 3d 666, 672 (2002). Defendant’s failure to do
so results in the forfeiture of the issue. People v. Brand, 2021 IL 125945, ¶ 32. Therefore, we are
limited to plain error review. See People v. Herron, 215 Ill. 2d 167, 178-79 (2005).
¶ 25 Additionally, we note that defendant did not address the forfeiture of this issue in his
opening brief and did not file a reply brief after the State raised the issue. He does not ask that we
review the matter for plain error. Accordingly, any argument concerning plain error has also been
forfeited. See People v. Nieves, 192 Ill. 2d 487, 503 (2000) (finding that the failure to argue “that
1
The State also argues that the doctrine of invited error applies here, but we do not agree.
“[U]nder the doctrine of invited error, an accused may not request to proceed in one manner and
then later contend on appeal that the course of action was in error.” (Internal quotation marks
omitted.) People v. Harvey, 211 Ill. 2d 368, 385 (2004). Here, regarding admission of this
evidence, as the State acknowledges, defense counsel said, “The only issue with regards to
marijuana in Illinois or marijuana is not illegal so that alone would not necessitate a search of a
vehicle.” This cannot fairly be read as a request to admit the evidence or deliberate acquiescence.
Cf. People v. Holloway, 2019 IL App (2d) 170551, ¶ 45 (invited error applies when defense
“deliberately acquiesced in the alleged error as a matter of trial strategy”).
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2023 IL App (2d) 210697
the evidence was closely balanced [or that] the error is so severe that it must be remedied to
preserve the integrity of the judicial process” forfeited plain error on appeal); see also Ill. S. Ct. R.
341(h)(7) (eff. July 1, 2008).
¶ 26 Moreover, assuming that defendant did not forfeit this issue, we find his argument on this
point unpersuasive. We begin with the proposition that a warrantless search is generally
unreasonable, subject to certain exceptions. People v. Pitman, 211 Ill. 2d 502, 513 (2004).
Pertinent here, the automobile exception provides that, due to their transient nature, automobiles
may be searched so long as “probable cause exists to believe the automobile contains evidence of
criminal activity subject to seizure.” People v. Contreras, 2014 IL App (1st) 131889, ¶ 28.
Probable cause to search a vehicle exists where “the facts and circumstances known to the officer
at the time would warrant a reasonable person to believe there is a reasonable probability that the
automobile contains contraband or evidence of criminal activity.” People v. Stribling, 2022 IL App
(3d) 210098, ¶ 10, appeal filed, No. 129014 (Ill. Oct. 20, 2022). Probable cause requires
probability rather than certainty. Hill, 2020 IL 124595, ¶ 24. Therefore, “probable cause does not
require an officer to rule out any innocent explanations for suspicious facts.” Id. Indeed, it is not
necessary that the belief that contraband or evidence is present be “more likely true than false.”
Texas v. Brown, 460 U.S. 730, 742 (1983).
¶ 27 Prior to the legalization of cannabis in this state, our supreme court held that the odor of
cannabis emanating from a vehicle, in itself, provided probable cause to search that vehicle. People
v. Stout, 106 Ill. 2d 77, 88 (1985). This was true regarding the odor of either burnt or raw cannabis.
Id. at 87 (burnt); People v. Smith, 2012 IL App (2d) 120307, ¶ 14 (raw). Since Stout, the laws
regarding cannabis have undergone a number of changes.
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2023 IL App (2d) 210697
¶ 28 First, in 2014, the Compassionate Use of Medical Cannabis Pilot Program Act (410 ILCS
130/1 et seq. (West 2014)) was enacted, “which allowed those with certain debilitating medical
conditions to purchase and possess cannabis.” Stribling, 2022 IL App (3d) 210098, ¶ 17. Shortly
thereafter, possession of small amounts of cannabis was decriminalized. Id. In Hill, 2020 IL
124595, ¶ 35, the supreme court held that these changes did not render the odor of cannabis
irrelevant in determining whether probable cause existed and found that it, along with certain other
facts, was sufficient to justify a search of a vehicle. The Hill court expressly declined to reconsider
Stout. Id. ¶ 18 (“Because the record shows more than the odor of raw cannabis was considered, we
need not address the validity of Stout after the enactment of the Compassionate Use of Medical
Cannabis Pilot Program Act *** (410 ILCS 130/1 et seq. (West 2016)) and decriminalization of
possession of small amounts of cannabis. Instead, we address whether the totality of the
circumstances here supported a finding of probable cause.”).
¶ 29 The next change in the law regulating cannabis occurred on January 1, 2020. Effective that
date, the Cannabis Regulation and Tax Act made lawful the possession by Illinois residents 21
years of age and older of “up to and including 30 grams of cannabis, up to 500 milligrams of
tetrahydrocannabinol (THC) in a cannabis-infused product, and 5 grams of cannabis concentrate.”
Stribling, 2022 IL App (3d) 210098, ¶ 23. Since then, courts have considered the effect of these
changes in the law regarding whether the odor of cannabis remained a sufficient justification to
search a vehicle but have not agreed on the result. Compare id. ¶ 29 (holding that the smell of burnt
cannabis without more does not establish probable cause for vehicle search), and People v.
Redmond, 2022 IL App (3d) 210524, appeal allowed, No. 129201 (Ill. Mar. 29, 2023) (following
Stribling), with People v. Molina, 2022 IL App (4th) 220152, appeal allowed, No. 129237 (Ill.
Mar. 29, 2023) (holding smell of raw cannabis sufficient to justify search of vehicle), and People
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2023 IL App (2d) 210697
v. Hall, 2023 IL App (4th) 220209, ¶ 27, appeal filed, No. 129439 (Ill Mar. 1, 2023) (holding odor
of raw cannabis and passenger’s pre-search admission that he possessed cannabis justified search
of car, finding Stout “remains good law” and citing Molina with approval), and People v. Mallery,
2023 IL App (4th) 220528, ¶ 42 (“when the odor of cannabis is detectable in a vehicle, it is ‘almost
certain’ that there has been a violation of the Vehicle Code,” relying on Molina); see generally
Michael Podgurski, Cannabis, Cars, and Probable Cause, 111 Ill. B.J. 30 (Feb. 2023).
¶ 30 In holding that “the smell of the burnt cannabis, without any corroborating factors, is not
enough to establish probable cause to search [a] vehicle,” the Third District, in Stribling, 2022 IL
App (3d) 210098, ¶ 29, found Stout inapplicable to postlegalization fact patterns and explained:
“The smell of burnt cannabis, alone, coupled with the defendant’s statement that someone
(he did not state that it was himself) had smoked in the vehicle ‘a long time ago,’ was not
enough for ‘a reasonable officer [to] conclude—considering all of the surrounding
circumstances, including the plausibility of the [innocent] explanation itself—that there
was a “substantial chance of criminal activity.” ’ [Citation.] It was legal for the defendant
to possess some cannabis. It was also legal for the defendant to have smoked cannabis and
then drive, so long as the concentration in his blood or urine did not pass the threshold
amount. The evidence presented does not show that the officer had any concerns with the
defendant’s blood concentration or any impaired driving.” Id. ¶ 28 (citing District of
Columbia v. Wesby, 583 U.S. ___, ___, 138 S. Ct. 577, 588 (2018)).
Conversely, the Fourth District recently held that Stout remains good law and found the odor of
raw cannabis sufficient to establish probable cause. Molina, 2022 IL App (4th) 220152, ¶ 52.
¶ 31 Probable cause is assessed with reference to the totality of the circumstances. People v.
Lee, 214 Ill. 2d 476, 485 (2005); People v. Love, 199 Ill. 2d 269, 279 (2002). It “requires only a
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2023 IL App (2d) 210697
probability or substantial chance of criminal activity, not an actual showing of such activity.”
(Internal quotation marks omitted.) Wesby, 583 U.S. at ___, 138 S. Ct. at 586. While it is true that
the possession and use of cannabis is now legal in many circumstances, it is still a crime in some
situations. See 625 ILCS 5/11-502.1 (West 2020) (concerning medical cannabis); id. § 11-502.15
(concerning adult-use cannabis). For example, no driver may use cannabis in a motor vehicle upon
a highway in this State. Id. §§ 11-502.1(a), 11-502.15(a). And, no person may possess cannabis in
a motor vehicle upon a highway in this State unless it is secured in an inaccessible, “odor-proof”
container. Id. §§ 11-502.1(c), 11-502.15(c). Both infractions are Class A misdemeanors. Id. §§ 11-
502.1(d), 11-502.15(d). As the Molina court put it: “[r]egardless of recent changes in the law
legalizing possession of small amounts of cannabis, there are still, among other things, (1) illegal
ways to transport it, (2) illegal places to consume it, and (3) illegal amounts of it to possess.”
Molina, 2022 IL App (4th) 220152, ¶ 43. Therefore, a law enforcement officer who detects “a
strong odor of burnt cannabis coming from the vehicle,” as Bolin testified here, has probable cause
to believe that cannabis is being transported, possessed, or used in a manner contrary to law. See
Hill, 2020 IL 124595, ¶ 35. After all, “probable cause does not require an officer to rule out any
innocent explanations for suspicious facts.” Id. ¶ 24.
¶ 32 Like the court in Molina, we acknowledge that “cannabis is in a different position in society
than it was” (Molina, 2022 IL App (4th) 220152, ¶ 52), but given that the laws of this state deem
its possession and use in a car a crime in some situations, then it follows that the smell of cannabis
in a car still forms the basis for probable cause. Accordingly, since the search of the car was
justified based on the odor of burnt cannabis, there was no error in the admission of the contraband
seized from the car.
¶ 33 B. Expert Testimony
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2023 IL App (2d) 210697
¶ 34 Defendant next complains that the conviction must be overturned because it derives from
“improperly admitted ‘expert’ testimony based on unreliable anecdotal hearsay,” pointing to the
opinion testimony of Washburn—whom the trial court qualified as an expert in the field of
narcotics—that defendant possessed the 248.6 grams of a substance containing cocaine with the
intent to deliver. Generally, a witness may testify as an expert if he or she possesses “experience
and qualifications [that] afford him [or her] knowledge that is not common to laypersons.”
Thompson v. Gordon, 221 Ill. 2d 414, 428 (2006). In addition, the proposed testimony must “aid
the trier of fact in reaching its conclusions.” Id. There is no “predetermined formula” specifying
how an expert acquires the knowledge that renders him or her an expert. (Internal quotation marks
omitted.) Id. Such knowledge may be acquired through study, practical experience, training,
education, or research. Id. at 428-29. Any weakness in the basis of an expert’s opinion goes to the
weight of the testimony; it should not affect its admissibility if the facts, data, or opinions are
reasonably relied upon by experts in the relevant field. People v. Comier, 2020 IL App (1st)
170500, ¶ 83. The decision to admit expert testimony is a matter within the sound discretion of the
trial court and will not be reversed absent an abuse of that discretion. Snelson v. Kamm, 204 Ill. 2d
1, 24 (2003). An abuse of discretion occurs only if no reasonable person could agree with the trial
court. Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 571 (2001). Here we
find no abuse of discretion. Washburn testified to his extensive experience in the field of narcotics
and his opinion that the amount of the contraband was inconsistent with personal use, and that
testimony was admissible. The weight to be assigned the testimony is for the jury to determine.
Snelson, 204 Ill. 2d at 27. In any event, defendant admitted to the police that he was having money
problems and he thought he could sell the substance, so any purported error was harmless. See
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2023 IL App (2d) 210697
People v. Bond, 405 Ill. App. 3d 499, 512 (2010) (holding that the defendant’s admission that he
possessed drugs with the intent to deliver them constituted overwhelming evidence of guilt).
¶ 35 C. Intent
¶ 36 Defendant next argues that the State never proved he had the specific intent to possess
cocaine rather than some other drug. Defendant points out that, in the statement he made to the
police, he stated he believed that the white substance in his duffel bag was either cocaine or
methamphetamine. Moreover, since he took the drugs from behind a dumpster, he had made no
deal to purchase a certain drug. Defendant reasons, “If this story is credited, then he did not
knowingly possess cocaine as charged.” (Emphasis added.) Defendant acknowledges that the
drugs were, in fact, cocaine, as testing revealed, and that “[t]he description of the drugs sounds
like cocaine.” He states, “It could be that [his] story was a lie and he was simply engaged in
ordinary purchase and distribution of drugs.” Defendant contends that choosing between these two
possibilities requires “rank speculation.” We disagree. In fact, if the jury disregarded defendant’s
statement professing ignorance about the type of drug he possessed, the balance of the evidence is
sufficient to support the conviction.
¶ 37 When a defendant challenges the sufficiency of the evidence, “the relevant question on
review is whether, after considering the evidence in the light most favorable to the State, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” People v. Branch, 2014 IL App (1st) 120932, ¶ 9. “The trier of fact determines
the credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences
to be drawn from the evidence.” Id. We will disturb a conviction only if the evidence is so
unsatisfactory as to raise a reasonable doubt regarding a defendant’s guilt. People v. Beauchamp,
241 Ill. 2d 1, 8 (2011).
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2023 IL App (2d) 210697
¶ 38 The State counters that the statute provides simply that possession of a “controlled
substance” with intent to deliver is unlawful. 720 ILCS 570/401 (West 2020). We note, however,
that methamphetamine is excluded: “it is unlawful for any person knowingly to manufacture or
deliver, or possess with intent to manufacture or deliver, a controlled substance other than
methamphetamine.” Id. Moreover, as defendant points out, both the indictment and the jury
instructions in this case specifically reference “cocaine” rather than simply a controlled substance.
Thus, the jury did not return a verdict based on defendant possessing a controlled substance; it
specifically convicted defendant of possessing cocaine with intent to deliver. And, the record
contains ample evidence to support that inference.
¶ 39 Initially, we note that the trier of fact is free to believe or reject all or part of a witness’s
statement. People v. Dinwiddie, 299 Ill. App. 3d 636, 644 (1998). State of mind is typically proved
using circumstantial evidence. People v. Witherspoon, 379 Ill. App. 3d 298, 307 (2008). It is not
required that “each link in the chain of circumstances be proved beyond a reasonable doubt.”
People v. Gomez, 215 Ill. App. 3d 208, 216 (1991). Instead, “it is sufficient if all the circumstantial
evidence taken together satisfies the jury beyond a reasonable doubt of the defendant’s guilt.” Id.
Here, the jury could infer from the fact that defendant had in his possession a substantial quantity
of cocaine that he knew what it was. Construing the evidence in the light most favorable to the
State, as we must (Branch, 2014 IL App (1st) 120932, ¶ 9), we conclude that defendant’s
conviction is adequately supported by the record.
¶ 40 Before closing this section of the opinion, we note that defendant briefly raises an as-
applied challenge to the constitutionality of the statute under which he was convicted. Defendant
begins by pointing out that criminal statutes generally are presumed to contain a scienter
requirement. Rehaif v. United States, 588 U.S. ___, ___, 139 S. Ct. 2191, 2195 (2019). That is, a
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2023 IL App (2d) 210697
defendant must typically possess a culpable mental state regarding each of the statutory elements
that describe the conduct criminalized by the statute. Id. at ___, 139 S. Ct. at 2195. At issue here,
section 401 of the Illinois Controlled Substances Act states, “[I]t is unlawful for any person
knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled
substance.” 720 ILCS 570/401 (West 2020). Defendant notes that the statute then goes on to set
forth penalties based on the substance and the amount possessed. Defendant reasons that the type
and quantity of the substance possessed, and his knowledge of those facts, are elements that must
be proven.
¶ 41 We note that they were. The trial court expressly instructed that, to convict defendant, the
jury had to find he knowingly possessed cocaine. The instruction also specified the amount of the
substance at issue. Absent “a clear legislative purpose to impose absolute liability ***, [a] court
will imply a mental state requirement.” People v. Anderson, 148 Ill. 2d 15, 24 (1992). This is
consistent with the well-established principle that we must interpret statutes, if possible, to
preserve their constitutionality. Id. at 22.
¶ 42 Defendant asserts that “any construction that would allow his conviction without proof of
his specific intent would” be unconstitutional. However, since the indictment alleged that
defendant knowingly possessed with intent to deliver more than 100 grams but less than 400 grams
of a substance containing cocaine and the jury was instructed that it had to find accordingly in
order to convict, the statute was not applied to defendant in an unconstitutional manner.
¶ 43 In short, we find defendant’s arguments concerning state of mind unpersuasive.
¶ 44 D. Sentencing
¶ 45 Finally, defendant argues that the trial court abused its discretion in imposing his sentence.
A sentence is an abuse of discretion only if it is “greatly at variance with the spirit and purpose of
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2023 IL App (2d) 210697
the law, or manifestly disproportionate to the nature of the offense.” People v. Stacey, 193 Ill. 2d
203, 210 (2000). Absent an abuse of discretion, a court of review will not disturb a defendant’s
sentence. People v. Alexander, 239 Ill. 2d 205, 212 (2010). A trial court’s decision regarding an
appropriate sentence is entitled to great discretion. Id. A reviewing court may not simply reweigh
the evidence and substitute its judgment for that of the trial court on these matters. Stacey, 193 Ill.
2d at 209.
¶ 46 Section 5-4-1 of the Unified Code of Corrections (730 ILCS 5/5-4-1(a)(3), (4) (West
2020)) mandates that a trial court consider “the financial impact of incarceration” and “evidence
and information offered by the parties in aggravation and mitigation.” Sections 5-5-3.1 and 5-5-
3.2 set forth numerous factors in mitigation and aggravation that a court must consider in
fashioning a sentence. Id. §§5-5-3.1, 5-5-3.2. A trial court need not recite each such factor and
expressly assign it weight. People v. Baker, 241 Ill. App. 3d 495, 499 (1993). It is presumed “that
a trial court considered all relevant factors in determining a sentence, and that presumption will
not be overcome without explicit evidence from the record that the trial court did not consider
mitigating factors.” People v. Flores, 404 Ill. App. 3d 155, 158 (2010). A trial court is presumed
to have considered all mitigating evidence before it, and to overcome that presumption, a defendant
must point to something beyond the length of the sentence itself. People v. Bilski, 333 Ill. App. 3d
808, 820 (2002).
¶ 47 Here, the trial court began its discussion of sentencing by stating that it must consider
numerous factors in aggravation and mitigation and that “the cost of incarceration is one.” It further
stated that it had to consider the nature of the offense, which in a case like this, “we’re really
talking about weight.” Defendant was convicted of possessing with intent to deliver 248.6 grams
of cocaine, which, the trial court noted, is “almost smack in the middle of the” statutory range. The
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2023 IL App (2d) 210697
trial court then observed that defendant had a criminal history, though it had seen both better and
worse, which was an aggravating factor. See 730 ILCS 5/5-5-3.2(a)(3) (West 2020). The trial court
later recognized defendant’s youth at the time he had committed the earlier offenses that comprised
some of his criminal record, but it noted the recency of other offenses and characterized
defendant’s more recent conduct as an “uptick of criminal activity.” It further found that there was
a need to deter others from committing similar offenses. See id. § 5-5-3.2(a)(7).
¶ 48 In mitigation, the trial court first found that, to the extent “[t]here weren’t gunshots fired,
there weren’t [sic] any physical violence,” defendant’s conduct neither caused nor threatened
physical harm nor did defendant contemplate that it would. Id. § 5-5-3.1(a)(1), (2). The trial court
then stated that many factors did not apply, expressly pointing to whether defendant was likely to
reoffend and his prospects on probation. Id. § 5-5-3.1(a)(8), (9), (10). The trial court also ruled out
defendant having a strong provocation to commit the offense and the existence of substantial
grounds tending to excuse his conduct. Id. § 5-5-3.1(a)(3), (4). It did note the effect defendant’s
incarceration would have on his children. See id. § 5-5-3.1(a)(18).
¶ 49 The trial court observed that the sentencing range for possession of cocaine with intent to
deliver was 9 to 40 years’ imprisonment. It noted that, if it “went strictly with just the weight,” the
middle of that range would be 24½ years’ imprisonment. The trial court then imposed a sentence
of 15 years’ imprisonment, which, it explained, was “still in the lower quarter percentile of the
range,” “to be served at 75 percent under truth in sentencing.” It also found that the second count,
alleging simple possession, merged into the first count, alleging possession with intent to deliver.
¶ 50 Defendant now asserts that the trial court made a number of errors in sentencing him. First,
defendant contends that the trial court did not adequately consider the cost of incarcerating him.
Second, defendant argues that the trial court improperly relied on a “mechanical formula” in
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2023 IL App (2d) 210697
crafting a sentence, specifically that the trial court used the weight of the cocaine as a “starting
point” that initially placed the sentence in the middle of the statutory range. Third, defendant
complains that his sentence was higher than he would have received in Cook County. Fourth, he
contends that the trial court erred in citing the need to deter others as an aggravating factor. Finally,
he complains that the trial court’s explanation of the sentence was confusing.
¶ 51 Turning to defendant’s first two arguments, we find that both ask us to reweigh the
evidence and substitute our judgment for that of the trial court. The trial court clearly did consider
the cost of incarceration and defendant’s complaint is not that the court did not consider this factor;
rather, it is that the trial court did not accord it adequate weight. It is not our role to reweigh such
evidence and substitute our judgment for that of the trial court. Stacey, 193 Ill. 2d at 209.
Defendant’s second argument is that the trial court, in imposing the 15-year sentence, relied on a
“mechanical formula” in arriving at a sentence in that it considered that defendant possessed an
amount of drugs near the middle of the statutory range and noted that 24½ years is the middle of
that range. But, defendant’s sentence of 15 years is not “greatly at variance with the spirit and
purpose of the law, or manifestly disproportionate to the nature of the offense” (id. at 210), and so
was not an abuse of discretion.
¶ 52 Defendant also raises what he refers to as the “endpoint problem.” By this, defendant
means that, if a defendant was convicted of possessing the minimum or maximum amount of drugs
within the given statutory range, it would be impossible to give effect to mitigating or aggravating
factors, respectively. Defendant asserts that proceeding in this manner would be “illogical.” See
People v. Calderon, 101 Ill. App. 3d 469, 479 (1981) (“It would be illogical in each case to start
at the minimum sentence and mechanically add or subtract years depending on each aggravating
or mitigating factor. If this were the proper procedure, a defendant convicted of armed robbery but
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2023 IL App (2d) 210697
having several mitigating factors and no aggravating factors could hypothetically be sentenced to
a term below the minimum.”). We do not see an “endpoint problem” in this case. The trial court
considered the statutory factors, including the amount of the drug and factors both aggravating and
mitigating, and crafted a sentence within its discretion. See id. (“there is no specific formula
provided in the Unified Code of Corrections”).
¶ 53 Third, in a section titled “Geographical Uniformity,” defendant complains that he would
have received a lighter sentence had he been tried in Cook County. Defendant asks that we take
judicial notice of the purported “well-known fact, easily gleaned from the case law of the First
District, that a sentence such as this would never have been given under remotely similar
circumstances had the Defendant been tried in Cook County.” Generally, “[a] reviewing court may
take judicial notice of factual evidence when the facts are capable of immediate and accurate
demonstration by resort to easily accessible sources of indisputable accuracy.” People v. Spencer,
408 Ill. App. 3d 1, 10 (2011). While the case law of the First District may qualify as an
“easily accessible source[ ] of indisputable accuracy,” the factual proposition advocated by
defendant—that sentences are lighter in Cook County—is certainly not “capable of immediate and
accurate demonstration.” Not all cases are appealed, and not all appeals address sentencing.
Defendant makes no attempt to explain how the case law of the First District would constitute an
adequate sample of sentencing in Cook County generally. And, even if it did, we would still have
to consider how the facts of individual cases affected the ultimate sentence. This is simply not the
sort of proposition of which a court could take judicial notice.
¶ 54 Defendant next complains that the trial court cited deterrence as an aggravating factor. See
730 ILCS 5/5-5-3.2(a)(7) (West 2020). Defendant argues that this is an impermissible double
enhancement (see, e.g., People v. Phelps, 211 Ill. 2d 1, 11-12 (2004)), as the trial court stated that
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2023 IL App (2d) 210697
“this statute was built with some pretty significant penalties primarily to attempt to deter drug
dealers from dealing drugs.” Defendant does not support this argument with any legal authority,
thus forfeiting the issue. People v. Ward, 215 Ill. 2d 317, 331-32 (2005). Moreover, the relevant
authority we have located does not support defendant’s position:
“[T]he general rule against double enhancement is merely a rule of construction established
by this court, which arises from the presumption that the legislature considered the factors
inherent in the offense in setting the initial penalty for that offense. [Citation.] But where
the legislature has made clear an intention to enhance the penalty for a crime, even in a
way which might constitute double-enhancement, this court will not overrule the
legislature. [Citation.]” People v. Sharpe, 216 Ill. 2d 481, 530 (2005).
Here, the legislature set forth the penalties for the offense of which defendant was convicted and
also directed sentencing courts to consider the need for deterrence in 5-5-3.2 of the Unified Code
of Corrections (730 ILCS 5/5-5-3.2(a)(7) (West 2020)). Thus, if a double enhancement has
occurred here, it was contemplated and sanctioned by the legislature.
¶ 55 Finally, defendant asserts that the trial court’s explanation of his sentence was confusing,
though he admits that “[i]t is not clear that Defendant was directly harmed by receiving a more
severe sentence as a result.” Specifically, defendant complains that, while the trial court stated that
it initially found that defendant’s criminal history was an aggravating factor, while acknowledging
that it had seen both better and worse, it later appeared to regard it as a mitigator, stating, “[W]hile
[defendant] does have a criminal history, it’s not as significant as I’ve seen as well as the other
mitigation that I’ve talked about so I am going to sentence him to 15 years.” Since the trial court
ultimately treated defendant’s criminal history as a mitigating factor, defendant was clearly not
prejudiced by this language. We will not disturb defendant’s sentence based on an alleged error
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2023 IL App (2d) 210697
that did not prejudice him. See People v. Muskgrove, 44 Ill. App. 3d 381, 391 (1976); People v.
Flynn, 23 Ill. App. 3d 730, 735-36 (1974).
¶ 56 In sum, we find no error in the trial court’s imposition of a sentence of 15 years’
imprisonment on defendant.
¶ 57 III. CONCLUSION
¶ 58 In light of the foregoing, we affirm the judgment of the circuit court of Boone County.
¶ 59 Affirmed.
¶ 60 JUSTICE JORGENSEN, specially concurring:
¶ 61 I agree with the majority’s analysis regarding forfeiture of the probable-cause issue,
including its conclusion that plain-error review is not available. I write separately, however,
because I believe the majority’s analysis, addressing the question left open in People v. Hill, 2020
IL 124595, and ignoring forfeiture, is judicial dicta. See People v. Williams, 204 Ill. 2d 191, 206-
07 (2003). I believe that the majority’s discussion of the merits of the probable-cause issue is not
necessary for the outcome of this appeal. I would simply affirm the trial court because any
challenge to the finding of probable cause to search defendant’s vehicle was forfeited since it was
not addressed by the trial court. People v. Brand, 2021 IL 125945, ¶ 32. Moreover, plain-error
review is not available here because defendant did not ask for it. People v. Hillier, 237 Ill. 2d 539,
545 (2010) (“A defendant who fails to argue for plain-error review obviously cannot meet his
burden of persuasion.”).
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2023 IL App (2d) 210697
People v. Harris, 2023 IL App (2d) 210697
Decision Under Review: Appeal from the Circuit Court of Boone County, No. 20-CF-119;
the Hon. C. Robert Tobin III, Judge, presiding.
Attorneys Anthony R. Burch, of Burch & Associates, of Chicago, for
for appellant.
Appellant:
Attorneys Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino,
for Edward R. Psenicka, and Adam J. Rodriguez, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
- 23 -
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"3",
"7",
"8",
"10",
"11"
]
Law
9880807
[SEGMENT 1]
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 159
N.D. Energy Services, LLC, Plaintiff and Appellant
v.
Lime Rock Resources III-A, L.P. and
Herman Energy Services, LLC, Defendants and Appellees
No. 20240096
Appeal from the District Court of Dunn County, Southwest Judicial District, the Honorable
Rhonda Rae Ehlis, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Lawrence Bender and Spencer D. Ptacek, Bismarck, ND, for plaintiff and appellant;
submitted on brief.
Paul J. Forster, Benjamin J. Sand, and Erik J. Edison, Bismarck, ND, for defendant and
appellee Lime Rock Resources III-A, L.P.; submitted on brief.
Quinn P. Fylling, Bismarck, ND, for defendant and appellee Herman Energy Services,
LLC; submitted on brief. [CITATION]
No. 20240096
Bahr, Justice.
[¶1] ND Energy Services, LLC, appeals a district court judgment denying its motion for
summary judgment, granting summary judgment in favor of Lime Rock Resources III-A,
L.P. and Herman Energy Services, LLC (collectively referred to as “Lime Rock”), and
dismissing ND Energy’s claims against Lime Rock. We conclude the leases provide Lime
Rock the right to install layflat hoses on the property at issue; ND Energy had notice of
Lime Rock’s rights in the property; and Lime Rock was justified in instigating a breach of
the temporary layflat easement between ND Energy and Kathleen Stroh. We affirm.
I
[¶2] In 2005, a company entered oil and gas leases with Kathleen Stroh, the surface
owner, and William and Evelyn Schmalz, severed mineral owners. The leases covered the
same property, including the subject property. The leases were recorded. Lime Rock
subsequently acquired ownership of both leases. Lime Rock spud wells on the property in
2009 and 2010. Lime Rock maintained both leases by continuous production from the
wells.
[¶3] In 2011, Stroh signed a surface use and damage agreement with another company.
The surface use agreement was not recorded. However, a memorandum of the surface use
agreement was recorded. Lime Rock subsequently acquired an interest in the surface use
agreement.
[¶4] On February 23, 2023, Stroh signed a temporary layflat easement agreement with
ND Energy. The agreement granted ND Energy “the exclusive right to transfer freshwater
via aboveground layflat hose, and/or any other conduits on and through the Property,” for
one year from its effective date.
[¶5] In May 2023, Lime Rock placed layflat hoses across the property. “The layflat hoses
at issue were used to transport water to frack [two] wells which Lime Rock operates.” Lime
Rock used the layflat hoses from May 23, 2023 to June 30, 2023.
[¶6] ND Energy brought this suit against Lime Rock alleging claims of tortious
interference of contract and willful trespass, and requesting a permanent injunction. Lime
Rock and ND Energy moved for summary judgment. The district court granted summary
judgment in favor of Lime Rock and dismissed ND Energy’s claims.
II
[¶7] The standard of review for summary judgment is well established:
In deciding whether the district court appropriately granted summary
judgment, we view the evidence in the light most favorable to the opposing
party, giving that party the benefit of all favorable inferences which can
reasonably be drawn from the record. A party opposing a motion for
summary judgment cannot simply rely on the pleadings or on unsupported
conclusory allegations. Rather, a party opposing a summary judgment
motion must present competent admissible evidence by affidavit or other
comparable means that raises an issue of material fact and must, if
appropriate, draw the court's attention to relevant evidence in the record
raising an issue of material fact. When reasonable persons can reach only one
conclusion from the evidence, a question of fact may become a matter of law
for the court to decide. A district court's decision on summary judgment is a
question of law that we review de novo on the record.
[CITATION]
A
[¶8] ND Energy argues the district court erred when it concluded the leases grant Lime
Rock the right to install and operate layflat hoses on the property. The court held, “Lime
Rock is entitled to reasonable use of the surface of the property to develop oil and gas by
way of the leases underlying the property under the accommodation doctrine.”
[¶9] The leases provide the lessor grants, demises, leases, and lets exclusively to the
lessee the subject property,
with the exclusive right for the purpose of mining, exploring by geophysical
and other methods, and operating for and producing therefrom oil and all gas
of whatsoever nature or kind, with rights of way and easements for laying
pipe lines, and erection of structures thereon to produce, save and take care
of said products[.]
[¶10] ND Energy agrees an easement to install and operate layflat hoses on the property
“is necessary for Lime Rock’s use of the Subject Property pursuant to the Leases.” As
noted by the district court, “It appears the parties do not dispute that fresh water is necessary
for fracking operations to develop oil and gas.” However, citing N.D.C.C. § 9-07-21, ND
Energy argues a layflat hose easement is excluded “[b]ecause the Leases expressly grant
certain easements to Lime Rock[.]” Section 9-07-21 provides, “All things that in law or
usage are considered as incidental to a contract or as necessary to carry it into effect are
implied therefrom, unless some of them are mentioned expressly therein. In such case, all
other things of the same class are deemed to be excluded.” Because the leases specifically
mention the right to lay pipelines, ND Energy asserts they exclude the right to install and
operate layflat hoses.
[¶11] Rejecting ND Energy’s argument, the district court wrote:
The Court does not find that the rights to use layflat hose and pipeline are mutually
exclusive, such that the inclusion of the right to install pipeline then means that the
use of layflat hose is excluded under the agreement because they are of the same
class. They do not necessarily replace each other. They can have different functions.
. . . [T]he Court concludes the plain and unambiguous language of the leases do not
repel the construction that Lime Rock can use layflat hose on the property.
[¶12] “The same general rules that govern interpretation of a contract apply to oil and gas
leases.” [CITATION]. “The construction of a written contract to determine its legal effect is a question of law and on
appeal, this Court will independently examine and construe the contract to determine if the
trial court erred in its interpretation.” Id. “Words in a contract are construed in their
ordinary and popular sense, unless used by the parties in a technical sense or given a special
meaning.” Id. at ¶ 8. “A contract must be read and considered in its entirety so that all of
its provisions are taken into consideration to determine the parties’ true intent.” Id.
[¶13] “Under a usual oil and gas lease, the lessee, in developing the leased premises, is
entitled to use of the land reasonably necessary in producing the oil[.]” [CITATION]. “Even though the surface rights of the lessee
may arise by implication, it is important to note that lessee’s rights are primarily governed
by the specific grant of such rights in the lease.” Id.
Whether the express uses are set out or not, the mere granting of the lease creates
and vests in the lessee the dominant estate in the surface of the land for the purposes
of the lease; by implication it grants the lessee the use of the surface to the extent
necessary to a full enjoyment of the grant. Without such use, the mineral estate
obtained under the lease would be worthless.
Id. (quoting [CITATION].
[¶14] We agree with the district court that the specific inclusion of pipelines in the leases
does not exclude the use of layflat hoses. The leases are broad, granting “exclusively” to
Lime Rock the property “with the exclusive right for the purpose of” producing oil and
gas. As acknowledged by ND Energy, Lime Rock’s installment and operation of layflat
hoses “is necessary for Lime Rock’s use of the Subject Property pursuant to the Leases.”
Moreover, ND Energy asserts layflat hoses were not used in the Bakken when the leases
were entered. Thus, the leases’ lack of reference to layflat hoses could not have been the
result of an intentional exclusion. Finally, Lime Rock’s use of temporary layflay hoses to
transport water is the same or less of a burden on the surface property than its use of
pipelines to transport oil, gas, or other products. Nothing in the leases’ broad language
indicates an intent to exclude the lessee’s use of layflat hoses.
[¶15] We conclude the district court did not err when it held the leases are unambiguous
and that the leases provide Lime Rock the authority to use layflat hoses on the property.
Because of this conclusion, we need not address whether the surface use agreement also
granted Lime Rock the right to use layflat lines on the property.
[SEGMENT 2]
B
[¶16] Citing N.D.C.C. § 47-19-41, ND Energy argues the district court erred when it
concluded the surface use agreement was not void because it was never recorded. See
section 47-19-41 (“An unrecorded conveyance of real estate is void as against any
subsequent purchaser in good faith, and for a valuable consideration, of the same real estate
or any part of the same real estate[.]”) ND Energy argues it was a good-faith purchaser of
the 2023 temporary layflat easement agreement because it was not on notice of the surface
use agreement. Lime Rock argues the memorandum of the surface use agreement, which
was recorded, put ND Energy on notice of the surface use agreement. The district court
concluded, “The recording of the memorandum of the surface agreement and the lease
agreements should have put ND Energy on notice regarding Lime Rock’s potential
property rights.”
[¶17] Section 47-19-19, N.D.C.C., provides, “The record of any instrument shall be notice
of the contents of the instrument, as it appears of record, as to all persons.” Section 47-19-
46, N.D.C.C., provides, “An unrecorded instrument is valid as between the parties thereto
and those who have notice thereof.” “This Court has ‘consistently held that a purchaser
who fails to make the requisite inquiry cannot claim the protection of a good-faith
purchaser status’ under N.D.C.C. § 47-19-41.” [CITATION] (quoting [CITATION]). “Rather, a person who fails to make the proper inquiry will be charged with
constructive notice of all facts that such inquiry would have revealed.” Id. (quoting
[CITATION], at ¶ 10).
[¶18] The recorded memorandum of surface use agreement provided ND Energy
constructive notice of the surface use agreement. By inquiring into the recorded
memorandum, ND Energy would have discovered a surface use agreement was in place
for the land before it entered the layflat easement agreement. Therefore, ND Energy was
not a good-faith purchaser of the surface use rights. See [CITATION].
[¶19] We conclude the district court did not err when it concluded ND Energy had notice
of the surface use agreement and was not a good-faith purchaser.
C
[¶20] ND Energy argues the district court erred in dismissing its claims against Lime Rock
for tortious interference with contract and permanent injunction. ND Energy argues it has
a layflat agreement with Stroh, and Lime Rock’s installation of its layflat hoses on the
property interfered in ND Energy’s exclusive right to install layflat hoses on the property.
[¶21] “To establish a prima facie case for intentional interference with contract, a plaintiff
must prove (1) a contract existed, (2) the contract was breached, (3) the defendant instigated
the breach, and (4) the defendant instigated the breach without justification.” [CITATION] (quoting [CITATION]).
[¶22] The district court denied ND Energy’s claim for tortious interference with a
contract, concluding ND Energy could not establish the last element of the tortious
interference of contract claim. After concluding “Lime Rock had the right to use layflat
hose to transport fresh water across the property, in accordance with the accommodation
doctrine, by way of the lease agreements and surface use agreement[,]” the court wrote, “It
may be questionable whether the agreement between Stroh and ND Energy is even valid,
but certainly Lime Rock did not instigate a breach without justification.” Explaining its
conclusion, the court wrote, “Lime Rock had justification because it was previously
granted the right to use layflat hose on the property.”
[¶23] Regarding “ND Energy’s request for a permanent injunction prohibiting Lime Rock
from interfering with ND Energy's rights to the property[,]” the district court wrote: “A
permanent injunction prohibiting Lime Rock from interfering with ND Energy’s alleged
exclusive right to use layflat hose on the property is not appropriate, since this Court
determines Lime Rock already had the right to do so prior to ND Energy entering into its
agreement with Stroh.”
[¶24] As concluded above, Lime Rock had the right to use the layflat hoses on the property
through the leases. Based on that determination, we conclude the district court did not err
in holding ND Energy’s claims for tortious interference with contract and permanent
injunction fail.
III
[¶25] We have considered the parties’ other arguments and conclude they are either
without merit or unnecessary for our decision. We affirm.
[¶26] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 159
N.D. Energy Services, LLC, Plaintiff and Appellant
v.
Lime Rock Resources III-A, L.P. and
Herman Energy Services, LLC, Defendants and Appellees
No. 20240096
Appeal from the District Court of Dunn County, Southwest Judicial District, the Honorable
Rhonda Rae Ehlis, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Lawrence Bender and Spencer D. Ptacek, Bismarck, ND, for plaintiff and appellant;
submitted on brief.
Paul J. Forster, Benjamin J. Sand, and Erik J. Edison, Bismarck, ND, for defendant and
appellee Lime Rock Resources III-A, L.P.; submitted on brief.
Quinn P. Fylling, Bismarck, ND, for defendant and appellee Herman Energy Services,
LLC; submitted on brief. [CITATION]
No. 20240096
Bahr, Justice.
[¶1] ND Energy Services, LLC, appeals a district court judgment denying its motion for
summary judgment, granting summary judgment in favor of Lime Rock Resources III-A,
L.P. and Herman Energy Services, LLC (collectively referred to as “Lime Rock”), and
dismissing ND Energy’s claims against Lime Rock. We conclude the leases provide Lime
Rock the right to install layflat hoses on the property at issue; ND Energy had notice of
Lime Rock’s rights in the property; and Lime Rock was justified in instigating a breach of
the temporary layflat easement between ND Energy and Kathleen Stroh. We affirm.
I
[¶2] In 2005, a company entered oil and gas leases with Kathleen Stroh, the surface
owner, and William and Evelyn Schmalz, severed mineral owners. The leases covered the
same property, including the subject property. The leases were recorded. Lime Rock
subsequently acquired ownership of both leases. Lime Rock spud wells on the property in
2009 and 2010. Lime Rock maintained both leases by continuous production from the
wells.
[¶3] In 2011, Stroh signed a surface use and damage agreement with another company.
The surface use agreement was not recorded. However, a memorandum of the surface use
agreement was recorded. Lime Rock subsequently acquired an interest in the surface use
agreement.
[¶4] On February 23, 2023, Stroh signed a temporary layflat easement agreement with
ND Energy. The agreement granted ND Energy “the exclusive right to transfer freshwater
via aboveground layflat hose, and/or any other conduits on and through the Property,” for
one year from its effective date.
[¶5] In May 2023, Lime Rock placed layflat hoses across the property. “The layflat hoses
at issue were used to transport water to frack [two] wells which Lime Rock operates.” Lime
Rock used the layflat hoses from May 23, 2023 to June 30, 2023.
[¶6] ND Energy brought this suit against Lime Rock alleging claims of tortious
interference of contract and willful trespass, and requesting a permanent injunction. Lime
Rock and ND Energy moved for summary judgment. The district court granted summary
judgment in favor of Lime Rock and dismissed ND Energy’s claims.
II
[¶7] The standard of review for summary judgment is well established:
In deciding whether the district court appropriately granted summary
judgment, we view the evidence in the light most favorable to the opposing
party, giving that party the benefit of all favorable inferences which can
reasonably be drawn from the record. A party opposing a motion for
summary judgment cannot simply rely on the pleadings or on unsupported
conclusory allegations. Rather, a party opposing a summary judgment
motion must present competent admissible evidence by affidavit or other
comparable means that raises an issue of material fact and must, if
appropriate, draw the court's attention to relevant evidence in the record
raising an issue of material fact. When reasonable persons can reach only one
conclusion from the evidence, a question of fact may become a matter of law
for the court to decide. A district court's decision on summary judgment is a
question of law that we review de novo on the record.
[CITATION]
A
[¶8] ND Energy argues the district court erred when it concluded the leases grant Lime
Rock the right to install and operate layflat hoses on the property. The court held, “Lime
Rock is entitled to reasonable use of the surface of the property to develop oil and gas by
way of the leases underlying the property under the accommodation doctrine.”
[SEGMENT 3]
[¶9] The leases provide the lessor grants, demises, leases, and lets exclusively to the
lessee the subject property,
with the exclusive right for the purpose of mining, exploring by geophysical
and other methods, and operating for and producing therefrom oil and all gas
of whatsoever nature or kind, with rights of way and easements for laying
pipe lines, and erection of structures thereon to produce, save and take care
of said products[.]
[¶10] ND Energy agrees an easement to install and operate layflat hoses on the property
“is necessary for Lime Rock’s use of the Subject Property pursuant to the Leases.” As
noted by the district court, “It appears the parties do not dispute that fresh water is necessary
for fracking operations to develop oil and gas.” However, citing N.D.C.C. § 9-07-21, ND
Energy argues a layflat hose easement is excluded “[b]ecause the Leases expressly grant
certain easements to Lime Rock[.]” Section 9-07-21 provides, “All things that in law or
usage are considered as incidental to a contract or as necessary to carry it into effect are
implied therefrom, unless some of them are mentioned expressly therein. In such case, all
other things of the same class are deemed to be excluded.” Because the leases specifically
mention the right to lay pipelines, ND Energy asserts they exclude the right to install and
operate layflat hoses.
[¶11] Rejecting ND Energy’s argument, the district court wrote:
The Court does not find that the rights to use layflat hose and pipeline are mutually
exclusive, such that the inclusion of the right to install pipeline then means that the
use of layflat hose is excluded under the agreement because they are of the same
class. They do not necessarily replace each other. They can have different functions.
. . . [T]he Court concludes the plain and unambiguous language of the leases do not
repel the construction that Lime Rock can use layflat hose on the property.
[¶12] “The same general rules that govern interpretation of a contract apply to oil and gas
leases.” [CITATION]. “The construction of a written contract to determine its legal effect is a question of law and on
appeal, this Court will independently examine and construe the contract to determine if the
trial court erred in its interpretation.” Id. “Words in a contract are construed in their
ordinary and popular sense, unless used by the parties in a technical sense or given a special
meaning.” Id. at ¶ 8. “A contract must be read and considered in its entirety so that all of
its provisions are taken into consideration to determine the parties’ true intent.” Id.
[¶13] “Under a usual oil and gas lease, the lessee, in developing the leased premises, is
entitled to use of the land reasonably necessary in producing the oil[.]” [CITATION].
“Even though the surface rights of the lessee may arise by implication, it is important to note that lessee’s rights are primarily governed
by the specific grant of such rights in the lease.” Id.
Whether the express uses are set out or not, the mere granting of the lease creates
and vests in the lessee the dominant estate in the surface of the land for the purposes
of the lease; by implication it grants the lessee the use of the surface to the extent
necessary to a full enjoyment of the grant. Without such use, the mineral estate
obtained under the lease would be worthless.
Id. (quoting [CITATION].
[¶14] We agree with the district court that the specific inclusion of pipelines in the leases
does not exclude the use of layflat hoses. The leases are broad, granting “exclusively” to
Lime Rock the property “with the exclusive right for the purpose of” producing oil and
gas. As acknowledged by ND Energy, Lime Rock’s installment and operation of layflat
hoses “is necessary for Lime Rock’s use of the Subject Property pursuant to the Leases.”
Moreover, ND Energy asserts layflat hoses were not used in the Bakken when the leases
were entered. Thus, the leases’ lack of reference to layflat hoses could not have been the
result of an intentional exclusion. Finally, Lime Rock’s use of temporary layflay hoses to
transport water is the same or less of a burden on the surface property than its use of
pipelines to transport oil, gas, or other products. Nothing in the leases’ broad language
indicates an intent to exclude the lessee’s use of layflat hoses.
[¶15] We conclude the district court did not err when it held the leases are unambiguous
and that the leases provide Lime Rock the authority to use layflat hoses on the property.
Because of this conclusion, we need not address whether the surface use agreement also
granted Lime Rock the right to use layflat lines on the property.
B
[¶16] Citing N.D.C.C. § 47-19-41, ND Energy argues the district court erred when it
concluded the surface use agreement was not void because it was never recorded. See
section 47-19-41 (“An unrecorded conveyance of real estate is void as against any
subsequent purchaser in good faith, and for a valuable consideration, of the same real estate
or any part of the same real estate[.]”) ND Energy argues it was a good-faith purchaser of
the 2023 temporary layflat easement agreement because it was not on notice of the surface
use agreement. Lime Rock argues the memorandum of the surface use agreement, which
was recorded, put ND Energy on notice of the surface use agreement. The district court
concluded, “The recording of the memorandum of the surface agreement and the lease
agreements should have put ND Energy on notice regarding Lime Rock’s potential
property rights.”
[¶17] Section 47-19-19, N.D.C.C., provides, “The record of any instrument shall be notice
of the contents of the instrument, as it appears of record, as to all persons.” Section 47-19-
46, N.D.C.C., provides, “An unrecorded instrument is valid as between the parties thereto
and those who have notice thereof.” “This Court has ‘consistently held that a purchaser
who fails to make the requisite inquiry cannot claim the protection of a good-faith
purchaser status’ under N.D.C.C. § 47-19-41.” [CITATION] (quoting [CITATION]). “Rather, a person who fails to make the proper inquiry will be charged with
constructive notice of all facts that such inquiry would have revealed.” Id. (quoting
[CITATION]).
[¶18] The recorded memorandum of surface use agreement provided ND Energy
constructive notice of the surface use agreement. By inquiring into the recorded
memorandum, ND Energy would have discovered a surface use agreement was in place
for the land before it entered the layflat easement agreement. Therefore, ND Energy was
not a good-faith purchaser of the surface use rights. See [CITATION].
[¶19] We conclude the district court did not err when it concluded ND Energy had notice
of the surface use agreement and was not a good-faith purchaser.
C
[¶20] ND Energy argues the district court erred in dismissing its claims against Lime Rock
for tortious interference with contract and permanent injunction. ND Energy argues it has
a layflat agreement with Stroh, and Lime Rock’s installation of its layflat hoses on the
property interfered in ND Energy’s exclusive right to install layflat hoses on the property.
[¶21] “To establish a prima facie case for intentional interference with contract, a plaintiff
must prove (1) a contract existed, (2) the contract was breached, (3) the defendant instigated
the breach, and (4) the defendant instigated the breach without justification.” [CITATION] (quoting [CITATION]).
[¶22] The district court denied ND Energy’s claim for tortious interference with a
contract, concluding ND Energy could not establish the last element of the tortious
interference of contract claim. After concluding “Lime Rock had the right to use layflat
hose to transport fresh water across the property, in accordance with the accommodation
doctrine, by way of the lease agreements and surface use agreement[,]” the court wrote, “It
may be questionable whether the agreement between Stroh and ND Energy is even valid,
but certainly Lime Rock did not instigate a breach without justification.” Explaining its
conclusion, the court wrote, “Lime Rock had justification because it was previously
granted the right to use layflat hose on the property.”
[¶23] Regarding “ND Energy’s request for a permanent injunction prohibiting Lime Rock
from interfering with ND Energy's rights to the property[,]” the district court wrote: “A
permanent injunction prohibiting Lime Rock from interfering with ND Energy’s alleged
exclusive right to use layflat hose on the property is not appropriate, since this Court
determines Lime Rock already had the right to do so prior to ND Energy entering into its
agreement with Stroh.”
[¶24] As concluded above, Lime Rock had the right to use the layflat hoses on the property
through the leases. Based on that determination, we conclude the district court did not err
in holding ND Energy’s claims for tortious interference with contract and permanent
injunction fail.
[SEGMENT 4]
III
[¶25] We have considered the parties’ other arguments and conclude they are either
without merit or unnecessary for our decision. We affirm.
[¶26] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 102
In the Matter of the Estate of Merle M. Almer a/k/a Merle Marvin Almer, Deceased
Linda R. Moe, Personal Representative, Petitioner and Appellee
v.
Merle C. Almer, Respondent and Appellant
and
Alexander Almer, Cindy Almer,
Marvin D. Almer, Angel Pederson,
Personal Representative of Steven W. Almer,
Wesley Dean Almer, Ramona F. Barmoen,
Martin Candia, First Lutheran Church of Tioga,
Angela Holte, Jennifer Knudson,
Jonathan McGregor, Jeffery Allen Moe, Sr.,
Jeffrey Allen Moe, Jr., Joe Ramos,
Curtis Vande Sandt, Landon Stern,
Diana Rae Thompson and Gary Zenker, Respondents
No. 20230365
Appeal from the District Court of Williams County, Northwest Judicial District, the
Honorable Kirsten M. Sjue, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Aaron J. Weber (argued), Watford City, ND, and Jenna McPherson (appeared), Casselton,
ND, for petitioner and appellee.
Bruce A. Schoenwald, Moorhead, MN, for respondent and appellant. Estate of Almer
No. 20230365
Crothers, Justice.
[¶1] Casey Almer appeals from a judgment entered in a probate case. He argues the
district court misinterpreted a will and erred when it found the personal representative did
not breach her fiduciary duties. Almer also argues the court erred when it approved
attorney’s fees. We affirm the judgment.
I
[¶2] Merle Almer died in 2016 at the age of 89. Among other endeavors during his life,
he owned and operated a construction business and a farm totaling roughly 2,800 acres. He
owned all of his assets individually and operated a sole proprietorship throughout his life.
His wife predeceased him. Linda Moe is one of his children. Casey Almer is one of his
grandchildren. Moe is Casey Almer’s aunt.
[¶3] Merle Almer’s will named Moe his personal representative. The will contains
bequests to various individuals. Some are cash, but the will nonetheless refers to them as
“specific devises.” Other bequests are particular property but are not referred to as specific
devises. The bulk of Merle Almer’s wealth is distributed in three categories: the
construction business, the farm and farming assets, and oil and gas interests. The
construction business is devised 52% to Moe with the rest to others who were involved in
the business. The will devises a life estate in the farm and farming assets to Casey Almer.
The will sets out a testamentary trust for the oil and gas interests. Moe is named the trustee.
She, Casey Almer, and others are beneficiaries.
[¶4] The will directs the personal representative to use “harvested and unharvested grain”
to pay costs of administration and taxes for the estate. The will contains contingent
instructions in the event the grain is insufficient to cover the estate’s liabilities. At the time
of Merle Almer’s death in February 2016, he had no crop in the ground. The grain
discovered in his grain bins was less than expected, and the proceeds from selling it were
anticipated to be short of the predicted estate tax liability. These circumstances resulted in
a dispute between the personal representative and Casey Almer that ultimately lead to a
separate lawsuit. The personal representative sued Almer for conversion of grain and other
farm assets, and Almer brought conversion and breach of fiduciary duty counterclaims.
Almer’s counterclaims were dismissed, and a jury found he did not convert property.
[¶5] During the course of administration, the personal representative paid the estate tax,
which was roughly $2 million more than the proceeds of grain harvested before the
decedent’s death. After the personal representative paid the estate tax and distributed the
farm assets, Almer filed a petition for surcharge alleging the personal representative
breached her fiduciary duties. The personal representative filed a response and a cross
motion requesting an order approving an inventory and appraisement, final report and
accounting, and approval of final distribution. The district court heard testimony and took
evidence over five days.
[¶6] The district court issued a lengthy order with findings of fact and conclusions of
law. The court held abatement provisions in the will were ambiguous due to the will’s non-
standard use of the term “specific devise.” The court made findings concerning the
testator’s intent based on testimony from the attorney who prepared the will. The court
found the testator intended for an abatement procedure that prioritized construction
business assets over most other assets. The court also found the personal representative did
not breach her fiduciary duties while administering the estate. The court denied Almer’s
application for surcharge, and granted the personal representative’s motion to approve final
distribution. The court denied about $35,000 in attorney’s fees and approved approximately
$760,000 in attorney’s fees. The court entered judgment staying its orders pending appeal.
[¶7] Almer appealed, and we temporarily remanded the case for the limited purpose of
considering costs and disbursements. The district court entered an order denying costs and
disbursements and the parties filed amended briefs. On appeal, Almer challenges the
court’s interpretation of the will, the court’s findings concerning the personal
representative’s conduct during administration, and the court’s approval of attorney’s fees.
II
[¶8] Almer argues the district court misinterpreted abatement provisions in the will. He
asserts the court erroneously read the term “specific devise” to create an abatement
procedure that disfavored his bequests. He claims the will’s abatement procedure is not
ambiguous like the court determined, and even if it was, the court’s consideration of
extrinsic evidence was inappropriate because statutory defaults should apply in the case of
ambiguity.
A
[¶9] When interpreting a will the primary objective is to determine the testator’s intent.
[CITATION]. Interpretation of an unambiguous
will presents a question of law that is fully reviewable on appeal. [CITATION]. Whether ambiguity exists is a question of law. [CITATION]. A will is ambiguous if its language is
susceptible to more than one reasonable interpretation. [CITATION]. Extrinsic evidence may be considered to resolve an ambiguity. [CITATION]. The district court’s resolution of an ambiguity
is a question of fact reviewed under the clearly erroneous standard. Id. at ¶ 7. “A finding
of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no
evidence to support it, or when, although there is some evidence to support it, the reviewing
court, on the entire evidence, is left with a definite and firm conviction that a mistake has
been made.” [CITATION] (internal quotation marks omitted) (quoting [CITATION]).
B
[¶10] Almer argues the district court erred when it found the will’s abatement provisions
are ambiguous. Abatement, in the context of a will, means the “reduction of a legacy,
general or specific, as a result of the estate’s being insufficient to pay all debts and
legacies.” Abatement, Black’s Law Dictionary (11th ed. 2019). The Uniform Probate Code,
as adopted in North Dakota, provides default abatement provisions. See N.D.C.C. § 30.1-
20-02. Under these rules, property not disposed of by a will is the first to abate, followed
by residuary devises, then general devises, and then specific devises. N.D.C.C. § 30.1-20-
02(1). A general devise is “a specific amount of money or quantity of property, that is
payable from the estate’s general assets.” Devise, Black’s Law Dictionary (11th ed. 2019).
A specific devise is a “devise that passes a particular piece of property.” Id. The statutory
abatement provisions do not apply if a will provides its own abatement procedure.
N.D.C.C. § 30.1-20-02(2). If a will sets out its own procedure, “the shares of the
distributees abate as may be found necessary to give effect to the intention of the testator.”
Id.
[¶11] Merle Almer provided an abatement procedure that differs from the statutory
default. His will requires taxes, debts, and expenses to be paid “out of the residue of my
estate, without apportionment.” In the next sentence, the will states: “Upon my death, all
of the harvested and unharvested grain which I may own at the time of my death . . . shall
be sold in the ordinary course of business, and the proceeds therefrom shall be used to pay
such taxes and expenses of administration . . .” The will then provides contingent
instructions if “the proceeds from the grain are insufficient.” In such case, “my liquid assets
shall be used to pay them.” The will references certain bank accounts as “liquid assets” and
gives the personal representative “absolute discretion” to use funds from those accounts
“and/or from any other liquid assets in my Estate.” The next instruction is at the center of
the dispute and provides: “If the liquid assets are insufficient to pay the taxes, debts,
expenses of administration and specific devises, then my Personal Representative shall
have the absolute discretion to sell any assets of my estate as may be necessary to pay
them.” (Emphasis added.)
[SEGMENT 5]
[¶12] The parties advance differing abatement procedures based on their interpretation of
the testator’s use of the term “specific devises” in the preceding sentence. The personal
representative asserts the testator intended the term “specific devise” to have a special
meaning connoting bequests that are to be prioritized in the administration. The personal
representative argues the testator “deviated from the traditional definition of the phrase,”
noting the will describes some general bequests of cash as specific devises. The personal
representative argues bequests labeled as “a specific devise” are to abate last. Almer asserts
the personal representative’s interpretation is unworkable. He argues it contradicts
language in the abatement clause that refers to certain bank accounts as “liquid assets.” He
notes one account related to the construction business is bequeathed as a “specific devise”
in the will. He argues the testator, by labeling the account both a “specific devise” and
referencing it as a liquid asset available to pay expenses, could not have intended to provide
special abatement protection for the account. He argues the testator’s use of the term
“specific devise” did not create a hierarchy favoring the construction assets like the
personal representative suggests.
[¶13] Both parties have advanced reasonable interpretations of the abatement provisions.
The personal representative’s focus on the term “specific devise” is reasonable because the
testator’s repeated use of the term suggests it was intended to have significance. The will
clearly uses the term “specific devise” in a manner contrary to its ordinary definition by
labeling a number of cash bequests as specific devises. The will also instructs the personal
representative to use “liquid assets . . . to pay . . . specific devises.” Inclusion of the term
“specific devise” to describe some bequests but not others, and use of the term in the will’s
abatement provisions, suggests the testator meant it to be operative. However, various
bequests labeled “specific devise” are “liquid assets” by their nature, and one is specifically
referred to as such. It is unworkable to simultaneously protect “specific devises” from
abatement and also make them available in the case abatement occurs. Almer’s
interpretation, which does not give the term operative effect, is also reasonable because it
avoids problems created by the will labeling various liquid assets as specific devises. We
conclude the district court did not err when it held the will was ambiguous.
C
[¶14] Almer argues that even if there is ambiguity, extrinsic evidence is inappropriate
because the Uniform Probate Code provides a statutory tax apportionment procedure.
Almer asserts a will either unambiguously provides a method of tax apportionment or it
does not. He argues any ambiguity “triggers the apportionment statute requiring all
devisees to share in the payment of estate taxes.” (Emphasis in original.) We disagree.
Under the statutory procedure, taxes are to be apportioned equally among interested
persons “[u]nless the will otherwise provides.” N.D.C.C. § 30.1-20-16(2). Thus, when
determining if the default provision applies, the question is whether the testator expressed
an intent that differs from the statute. Merle Almer’s will instructs the personal
representative to pay estate taxes “without apportionment,” and it provides a specific
payment procedure that differs from the statute. No language in section 30.1-20-16
suggests the default applies when an alternative method is expressed but is ambiguous.
Therefore extrinsic evidence is appropriate to resolve ambiguities in the will concerning
payment of taxes. See [CITATION] (consideration
of extrinsic evidence was appropriate when testator “made clear her intentions about
treating all four children equally,” but ambiguous language created “confusion about how
[she] intended to accomplish that objective”). The district court did not err when it
considered extrinsic evidence to resolve the ambiguity.
D
[¶15] Almer argues the district court’s interpretation of the will conflicts with the evidence
presented at trial. Based on extrinsic evidence, the district court found the “will expresses
an order of abatement, and that those devises denominated in [the] will as ‘specific devises’
are the preferred devises with the highest priority that would be the very last to abate.” The
court’s finding is based on testimony from Kathleen Imes, the attorney who prepared the
will. The court found “Imes worked with Merle Almer on his estate planning for many
years, had discussions with him about his intent for the disposition of his estate assets, and
drafted this particular will based on those discussions.” The court considered credible Imes’
testimony “that the term ‘specific devise’ in the will was used intentionally by Merle Almer
to signify the preferred devises with the very highest priority, and was one of the most
important parts of his will.” The court found Merle Almer considered his construction
business, which he labeled a “specific devise,” to be “his legacy” and that he “wanted it to
survive after his death.” The court found Merle Almer intended that bequests labeled
“specific devise” could be “funded” by the sale of other assets, including “the Almer farm
assets, and the Almer Minerals Trust.” The court’s findings regarding the testator’s intent
are supported by the evidence and not clearly erroneous. The district court did not err when
it interpreted the will.
III
[¶16] Almer argues the personal representative breached her fiduciary duties by failing to
distribute estate income and property, falsely accusing him of stealing grain from the estate,
engaging in unfounded litigation against him, and failing to properly maintain estate
equipment.
A
[¶17] “Whether a personal representative breached a fiduciary duty is a question of fact,
which will not be reversed on appeal unless it is clearly erroneous.” [CITATION]
“To establish a breach of fiduciary duty, the plaintiff must prove: 1) a
fiduciary relationship between the plaintiff and defendant; 2) a duty by the
defendant to the plaintiff arising from that relationship; 3) the defendant’s
breach of that duty; and 4) damage to the plaintiff proximately caused by that
breach of duty.”
[CITATION] Section 30.1-18-03(1), N.D.C.C.,
provides for fiduciary duties of personal representatives:
“A personal representative is a fiduciary who shall observe the standards of
care applicable to trustees. A personal representative is under a duty to settle
and distribute the estate of the decedent in accordance with the terms of any
probated and effective will and this title, and as expeditiously and efficiently
as is consistent with the best interests of the estate. The personal
representative shall use the authority conferred upon the personal
representative by this title, the terms of the will, if any, and any order in
proceedings to which the personal representative is party for the best interests
of successors to the estate.”
See also N.D.C.C. ch. 59-16 (providing trustee duties). A personal representative may be
“liable to interested persons for damage or loss resulting from breach of the personal
representative’s fiduciary duty to the same extent as a trustee of an express trust.” N.D.C.C.
§ 30.1-18-12.
B
[¶18] Almer argues the personal representative breached fiduciary duties by retaining
estate assets and failing to distribute income derived from them. His arguments implicate
various statutory provisions concerning a personal representative’s authority over estate
assets during the administration period.
[¶19] A decedent’s property devolves to devisees upon death “subject to” estate
administration. N.D.C.C. § 30.1-12-01. During administration, the personal representative
has the same power the decedent had over his or her property, “in trust however, for the
benefit of the creditors and others interested in the estate.” N.D.C.C. § 30.1-18-11. A
personal representative has a duty to settle and distribute estate assets “as expeditiously
and efficiently as is consistent with the best interests of the estate.” N.D.C.C. § 30.1-18-
03. A personal representative has authority to retain and lease property in the estate “for
administration purposes for the benefit of interested persons.” [CITATION]
[¶20] Almer argues the personal representative “wrongfully took over and retained the
Almer farming and oil and gas operations in violation of N.D.C.C. § 30.1-18-15(24),”
which says a personal representative may continue a decedent’s unincorporated business
or venture in “the same business form” for a period less than four months from the date she
was appointed. Almer asserts the personal representative violated this law because she
“took over and carried on those businesses more than four months after her appointment.”
[¶21] Almer’s reliance on this law is not persuasive. Almer has not identified evidence
showing the personal representative took actions that would constitute a farming or oil and
gas business or venture. The personal representative hired a custom combiner to take
possession of grain Casey Almer planted on the farmland in 2016, entered into a lease with
another farmer for 2017, sold grain to raise funds for estate administration, and leased or
[SEGMENT 6]
continued to lease minerals the decedent owned. These transactions are expressly authorized by N.D.C.C. § 30.1-18-15, which states the personal representative may “[r]etain assets owned by the decedent pending distribution or liquidation,” may “dispose of an asset . . . for cash,” may enter “for any purpose into a lease as lessor or lessee” and may enter “into a lease or arrangement for exploration and removal of minerals or other natural resources.”
[¶22] Almer also argues the personal representative violated the Uniform Principal and Income Act (1997), N.D.C.C. ch. 59-04.2, by not distributing minerals to a testamentary mineral trust or making distributions of royalty income. He notes section 59-04.2-06 states an “income beneficiary is entitled to net income from the date on which the income interest begins,” which is “the date of a testator’s death . . . even if there is an intervening period of administration of the testator’s estate.” However, N.D.C.C. ch. 59-04 plainly does not apply when a will or trust provides conflicting provisions, in which case the trust or estate “shall” be administered “in accordance with the terms of the trust or the will.” N.D.C.C. § 59-04.2-02(1)(a). The will in this case differs from the statute by allowing the personal representative, in her “absolute discretion” to use “any” of the “liquid assets in my Estate” to pay “my debts and taxes.”
[¶23] The district court held the personal representative did not breach her fiduciary duties by retaining and using estate assets and income during the administration period. The court explained the costs of administering this estate, including taxes and litigation expenses, have been “substantial and ongoing.” The court found “it would have been imprudent and unreasonable for the personal representative to immediately distribute all of the estate assets or fail to maintain a financial reserve in the estate, until such time as the estate was actually drawing to a close.” The court found the personal representative acted reasonably when she retained and utilized estate assets. The court’s findings are supported by the evidence and not clearly erroneous.
C
[¶24] Almer claims the personal representative breached fiduciary duties by engaging in various other conduct.
[¶25] Almer argues the personal representative had no basis to believe he stole grain, and she wasted estate assets by pursuing litigation against him that ultimately failed. The district court found several individuals made statements to the personal representative that
gave her reason to believe the decedent’s grain bins were full at the time of his death. The
court found Almer had access to the grain bins before and after the decedent’s death and
was generally uncooperative with the personal representative. The court found that a
forensic accountant provided the personal representative with a report indicating grain was
missing and that Almer sold more grain than he produced on his own property. The court
found the personal representative’s accusations and decision to bring the lawsuit against
Almer were reasonable given the information she had at the time. The court also found the
protracted and expensive nature of the litigation with Almer was due in part to
counterclaims pursued by Almer. We conclude the court’s findings are not clearly
erroneous.
[¶26] Almer argues the personal representative failed to distribute equipment that was
devised to him. He asserts some farm equipment was improperly characterized as
construction equipment. The district court found “more than two hundred pieces of
equipment” existed during the decedent’s life, the equipment “went back and forth”
between farming and construction operations, and the decedent never created a list
characterizing the equipment. The court found the personal representative’s distribution of
the equipment, which was based on advice by “those who were familiar with the equipment
and its day-to-day uses,” was reasonable and did not constitute a breach of fiduciary duty.
These findings are not clearly erroneous.
[¶27] Almer argues the personal representative failed to properly maintain farm
equipment and distributed some equipment in a damaged state. The district court found
Almer failed to prove this claim. The court noted Almer only provided his opinion as to
damages, which the court did not find credible. The court explained Almer “claims he paid
to repair a few of these things, but presented no receipts showing the cost. He alleges
$100,000.00 in repair costs for a sprayer and another $100,000.00 for a tractor, but then
admitted at trial that he does not know what is wrong with these items, has never had them
looked at by a dealer or repair shop, and does not know what it would actually cost to repair
them.” These findings also are not clearly erroneous.
IV
[¶28] Almer argues the district court erred when it ordered attorney’s fees and other
litigation expenses to be paid by the estate. He asserts it was impermissible for the court to
approve fees incurred as a result of the personal representative’s unsuccessful conversion
lawsuit against him. We disagree. Under N.D.C.C. § 30.1-18-20, a personal representative
is entitled to receive reasonable attorney’s fees from an estate when he or she “defends or
prosecutes any proceeding in good faith, whether successful or not.” See also N.D.C.C. §
30.1-18-15(21) (authorizing personal representatives to employ attorneys); N.D.C.C. §
30.1-18-15(22) (authorizing personal representatives to prosecute and defend claims for
the protection of the estate). As we explained in Part III-C of this opinion, the district court
did not err when it found the personal representative acted in good faith when she sued
Almer on behalf of the estate. Therefore the court’s approval of those litigation expenses
was permissible. Almer also argues he is entitled to attorney’s fees for his litigation
expenses. His assertions necessarily fail because they are premised on success in this
appeal, which he has not achieved.
V
[¶29] We have considered Almer’s remaining arguments and conclude they are either
without merit or unnecessary to our decision. The judgment is affirmed.
[¶30] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
```plaintext
FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
SEPTEMBER 28, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 171
Darren [CITATION] and Tamara [CITATION], Plaintiffs, Appellants, and
Cross-Appellees
v.
Jason Sellers, Krysta Sellers,
Jordan Anderson, Personally, and
Big River Builders, Inc., Defendants, Appellees, and
Cross-Appellants
and
The Misty Waters Owners’
Association, Defendant and Appellee
and
Jason Sellers, Krysta Sellers,
Jordan Anderson, Personally, and
Big River Builders, Inc., Third-Party Plaintiffs, Appellees,
and Cross-Appellants
v.
Jeff Carlson, Third-Party Defendant and Appellee
No. 20220322
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Pamela A. Nesvig, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Tufte, Justice.
Nicholas C. Grant (argued) and Shea A. Miller (on brief), Dickinson, N.D., and
Bradley J. Beehler (on brief) and Victoria A. Vold (appeared), Grand Forks,
N.D., for plaintiffs, appellants, and cross-appellees. It appears that there are no court ruling citations present in the provided text. The text is composed of lists of individuals and their roles or locations in the legal proceeding. Therefore, no modifications are necessary.
The text after processing remains the same:
Randall J. Bakke (argued) and Shawn A. Grinolds (appeared), Bismarck, N.D.,
for defendants, appellees, and cross-appellants.
William P. Harrie (argued), Fargo, N.D., for defendant and appellee.
Katie L. Winbauer (argued) and Chris A. Edison (on brief), Bismarck, N.D., for
third-party defendant and appellee.
Zachary E. Pelham and Matthew R. Keller, Bismarck, N.D., for amicus curiae
Misty Waters L.L.C. [CITATION]
No. 20220322
Tufte, Justice.
[¶1] Darren Berger and Tamara Berger (“Bergers”) appeal from a judgment
dismissing their claims of violation of a planned unit development (PUD),
breach of contract, breach of fiduciary duty, private nuisance, and negligence
against their neighbors Jason Sellers and Krysta Sellers (“Sellers”), Sellers’
homebuilder Jordan Anderson and Big River Builders, Inc. (together,
“Builder”), and the Misty Waters Owners’ Association (“Association”). Sellers
and Builder cross-appeal from the judgment dismissing their claims of
defamation, interference with contract and business, and negligence against
Bergers and neighbor Jeff Carlson. The parties argue the district court erred
by dismissing their respective claims.
[SEGMENT 7]
[¶2] The central issue in this case is whether the PUD minimum setback from
the bay can be changed by obtaining a new Letter of Map Revision (LOMR)
from the Federal Emergency Management Agency (FEMA) without an
amendment to the PUD. We conclude the PUD unambiguously sets the
minimum setback from the bay as the contour line in the 2005 LOMR-F and
therefore Sellers’ home violates the PUD. The judgment of dismissal is
affirmed in part, reversed in part, and remanded for further proceedings.
I
[¶3] Sellers purchased a lot next to Bergers’ lot in the Misty Waters
development north of Bismarck. Misty Waters is a residential and commercial
development located on the shores of the Missouri River and on an inland,
man-made, off-river bay. Sellers’ and Bergers’ backyards are bordered by the
Misty Waters Bay. The development is controlled by the Misty Waters Planned
Unit Development, which was adopted in June 2005 and amended in 2006 and
2017. The August 2006 “Major PUD Amendment” states “the minimum
setback from the bay shall be elevation 1640.3 (NAVD88) as delineated by the
contour line described in the approved LOMR.” (Emphasis added.) The 2017
amendment to the PUD did not change this provision. The approved LOMR in
August 2006 was the 2005 LOMR-F. Subsequent LOMR-F’s were issued by
FEMA in November 2006 and May 2020. Builder applied to FEMA for the 2020
LOMR-F, which is specific to Sellers’ lot. It is undisputed that if the 2005
LOMR-F defines the setback from the bay, Sellers’ home violates the PUD, and
if the 2020 LOMR-F defines the setback, Sellers’ home complies with the PUD.
In addition to the PUD, the Misty Waters development is governed by
restrictive covenants and by-laws. The covenants incorporate the 2006 Major
PUD Amendment.
[¶4] Sellers hired Builder to construct their home. Both the City of Bismarck
(“City”) and the Association’s Architectural Control Committee (ACC)
approved construction of Sellers’ home. Construction began around September
2019. In March 2020, Darren Berger and neighbor Pat Spilman contacted
the Association’s president and the City’s building official regarding Sellers’
home construction and compliance with the setback requirements. Spilman
was specifically concerned the construction of Sellers’ home either violated or
would violate the setback requirements and requested assurances from the
Association that the home would comply with all setbacks. The Association’s
president assured him that the home complied with the setbacks. The building
official recommended to Builder to apply for a new LOMR-F because he
believed the setback from the bay to be an elevation which can change with the
addition of fill dirt and an approved LOMR by FEMA. Builder applied for a
new LOMR-F. On May 28, 2020, FEMA issued a new LOMR-F for Sellers’ lot.
The City issued a certificate of occupancy for Sellers’ home.
[¶5] In the spring of 2020, Darren Berger and neighbor Jeff Carlson had a
conversation about Sellers’ lot. Carlson testified that Darren Berger told him
that he was contemplating commencing a lawsuit against Sellers and Builder
because he believed Sellers’ home was built beyond the bay setback. Around
May 24 or 25, 2020, Carlson called his friend, David Rogstad, a manager at
Starion Bank, which was financing the construction of Sellers’ home. Carlson
testified he told Rogstad that he believed Sellers’ home was “50, 60 feet past
the setback” and that a possible lawsuit was “coming his way.” Rogstad
testified that he inspected Sellers’ lot the next morning after his phone call
with Carlson. Rogstad testified that while he was walking around Sellers’ lot,
Darren Berger approached him and told him that he believed Sellers’ home
was built beyond the “flood line” and pointed out the stake he believed marked
that line. Rogstad informed Starion’s Chief Credit Officer LaDawn Schmitt of
his conversations with Carlson and Berger. Starion then paused draw
payments on Sellers’ construction loan and requested information from Sellers
concerning the fill dirt and compliance with the setback. The draws were
paused for approximately one to two weeks. Starion also removed Big River
Builders from its “approved builders list.”
[¶6] In summer 2020, Bergers commenced this lawsuit against Sellers,
Builder, and the Association. After amending the complaint, Bergers alleged
violation of the PUD, breach of contract for violating the restrictive covenants,
breach of fiduciary duty, negligence, and private nuisance. They also sought a
declaratory judgment stating the minimum bay setback is the contour line
established by the surveyed metes-and-bounds legal description in the 2005
LOMR-F. Sellers and Builder counterclaimed against Bergers, alleging
defamation, interference with contract and business, and negligence. Sellers
and Builder also brought a third-party complaint against Carlson for
defamation and interference with contract and business. After cross-motions
for summary judgment, the district court dismissed all claims and entered
judgment. [CITATION] appeal, and Sellers and Builder cross-appeal.
II
[¶7] Our standard for reviewing a grant of summary judgment is well-
established:
Summary judgment is a procedural device for the prompt
resolution of a controversy on the merits without a trial if there
are no genuine issues of material fact or inferences that can
reasonably be drawn from undisputed facts, or if the only issues to
be resolved are questions of law. A party moving for summary
judgment has the burden of showing there are no genuine issues
of material fact and the moving party is entitled to judgment as a
matter of law. In determining whether summary judgment was
appropriately granted, we must view the evidence in the light most
favorable to the party opposing the motion, and that party will be
given the benefit of all favorable inferences which can reasonably
be drawn from the record. On appeal, this Court decides whether
the information available to the district court precluded the
existence of a genuine issue of material fact and entitled the
moving party to judgment as a matter of law. Whether the district
court properly granted summary judgment is a question of law
which we review de novo on the entire record.
[CITATION]
III
[¶8] Bergers argue the district court erred in concluding Sellers’ home does
not violate the PUD’s bay setback requirement. A PUD is a form of zoning
ordinance where “the type, density and placement of land uses and buildings,
instead of being detailed and confined to specified districts by local legislation
in advance, is determined by contract, or deal, as to each development between
the developer and the municipal administrative authority, under broad
guidelines laid down by state enabling legislation and an implementing local
ordinance.” [CITATION] We interpret a zoning ordinance under
rules of statutory construction:
The interpretation of an ordinance, like the interpretation of a
statute, is a question of law subject to full review on appeal. In
construing an ordinance, we ascertain the enacting body’s intent
by giving the language its plain, ordinary, and commonly
understood meaning. When the language of an ordinance is free
and clear of all ambiguity, the letter of the ordinance cannot be
disregarded under the pretext of pursuing its spirit. We construe
ordinances as a whole and harmonize them to give meaning to
related provisions. We will ordinarily defer to a reasonable
interpretation of a statute by the agency enforcing it, but an
interpretation that contradicts clear and unambiguous language is
not reasonable.
[CITATION]
A
[¶9] The PUD states “the minimum setback from the bay shall be elevation
1640.3 (NAVD88) as delineated by the contour line described in the approved
LOMR.” (Emphasis added.) The district court concluded that “the approved
LOMR” is the most recently approved LOMR by FEMA pertaining to the lots
described in the LOMR. Thus, the court determined the 2020 LOMR-F
pertaining specifically to Sellers’ lot was “the approved LOMR” for that lot. In
reaching its conclusion, the court noted the 2020 LOMR-F states,
“SUPERSEDES OUR PREVIOUS DETERMINATION (This Additional
Consideration applies to all properties in the LOMR-F DETERMINATION
DOCUMENT (REMOVAL))[.] This Determination Document supersedes our
previous determination dated 8/5/2014, for the subject property.” Further, the
court reasoned the City has discretion when interpreting its own ordinances.
[¶10] Bergers argue “the approved LOMR” refers to the only LOMR in
existence at the time that language was added to the PUD, the 2005 LOMR-F.
We agree. By its plain language, the PUD refers to a single LOMR (“the”
LOMR) which has already been approved by FEMA. The district court’s
interpretation reads further language into the PUD that does not exist, such
as “any” approved LOMR or “the most recently approved LOMR specific to the
lot.” Under the court’s interpretation, at least three approved LOMR’s (2005,
2006, 2020) would appear to dictate the bay setback, as opposed to “the contour
line described in the approved LOMR.”
[SEGMENT 8]
[¶11] Under our rules of statutory construction, a subsequent modification to
an incorporated reference in a statute does not amend the statute unless
clearly expressed in the statute:
One rule applied in the construction of statutes is that where
one statute adopts the particular provisions of another statute by
a specific and descriptive reference to the statute or provision
adopted the effect is the same as though the statute or provision
adopted had been incorporated bodily into the adopting statute.
Such adoption takes the statute as it exists at the time of adoption
and does not include subsequent additions or modifications of the
statute so taken unless it does so by express intent or necessary
implication.
[CITATION]. In [CITATION], the Court
concluded that although a state constitutional provision prohibiting liquor sale
had been repealed, prior to its repeal it had been incorporated by reference in
a provision authorizing cities to engage in “business not prohibited by Article
20” (the since-repealed constitutional provision prohibiting the sale of liquor).
[CITATION]. Despite the repeal of the prohibition article, we held its incorporation by
reference in § 185 preserved the exclusion of liquor sales from the businesses
in which cities may engage. [CITATION]. In [CITATION], the Court construed a state
statute adopting by reference the definition of LSD as defined in federal law
“as amended” and regulations promulgated thereunder to mean the federal law
and regulations in existence at the time of enactment of the adopting statute.
[CITATION]. Interpreting the statute to avoid
constitutional doubt about unlawful delegation of legislative power, the Court
concluded, “We do not construe, in this case, the adopting statutes as
attempting to adopt future laws, rules or regulations of the federal
government.” [CITATION]. As [CITATION] demonstrate, where an incorporated
reference is subsequently modified or repealed, that change does not alter the
meaning of the law incorporating that reference.
[¶12] Here, the PUD adopted by reference “the contour line described in the
approved LOMR” to define the minimum setback from the bay. Thus, the PUD
adopted the bay setback requirement existing at the time of adoption and as
described in the 2005 LOMR-F. Subsequent LOMRs issued by FEMA do not
modify the PUD’s bay setback requirement.
[¶13] The district court erroneously relied upon the 2020 LOMR-F’s
superseding language—“[t]his Determination Document supersedes our
previous determination”—in reaching its conclusion that the bay setback
pertaining to Sellers’ lot was changed when FEMA issued the 2020 LOMR-F.
The PUD does not state the setback requirements can be changed through the
issuance of a new LOMR by FEMA. To the contrary, within the same paragraph
as the setback requirements, the PUD states, “Any change to the density or
building setbacks that are inconsistent with these standards will require an
amendment to this PUD.” The final paragraph in the PUD provides, “This PUD
shall only be amended in accordance with Section 14-04-18(4) of the City Code
of Ordinances (Planned Unit Developments). Major changes require a public
hearing and a majority vote of the Bismarck Planning & Zoning Commission.”
The PUD has not been amended to change the bay setback. This additional
provision within the same paragraph emphasizing that “[a]ny change to the . .
. building setbacks” requires an amendment to the PUD further supports the
interpretation that the bay setback was a static line as delineated in the 2005
LOMR-F, which landowners and prospective landowners could rely upon.
[¶14] Under section 14-04-19(3) of the Bismarck Code of Ordinances, “Letter
of map revision (LOMR)” is defined as “an official amendment to the currently
effective flood insurance rate map (FIRM) which is issued by FEMA and
changes flood zones, delineations and elevations.” Thus, the 2020 LOMR-F
superseded FEMA’s previous amendment to the flood insurance rate map, but
did not supersede provisions of the PUD. The 2020 LOMR-F acknowledges this
purpose, stating the subject property is not located in the Special Flood Hazard
Area—“an area inundated by the flood having a 1-percent chance of being
equaled or exceeded in any given year”—and thus federal mandatory flood
insurance is not required. Accordingly, the PUD’s bay setback requirement and
FEMA’s flood insurance rate map determination are not one and the same.
[¶15] We conclude the PUD unambiguously states that the minimum setback
from the bay is delineated by the contour line established by the surveyed
metes-and-bounds legal description from the 2005 LOMR-F. Because the PUD
is unambiguous, we need not consider whether or to what extent the City’s
interpretation of its ordinance is reasonable and entitled to deference.
[CITATION] (“[A]n interpretation that contradicts clear and
unambiguous language is not reasonable.”); [CITATION] (explaining the County’s “interpretation is not
necessarily controlling,” and giving deference to its application of ambiguous
term in zoning ordinance as not arbitrary, capricious, or unreasonable).
Because Sellers’ home violates the PUD, we reverse on this issue as to Sellers
and remand with instructions to grant Bergers partial summary judgment on
this issue as requested in their motion for partial summary judgment. To the
extent Bergers claim Builder violated the PUD, we conclude Builder was acting
as an agent of Sellers in constructing Sellers’ home and Builder is not liable for
any setback violation caused by Sellers’ home. By its plain language, the PUD
governs the minimum setback from the bay of residential buildings. Although
Sellers’ home violates the PUD’s bay setback requirement, Builder has no
control, possession, or ownership of Sellers’ home. Bergers have not argued how
Builder’s construction of Sellers’ home, as opposed to the structure itself
extending beyond the bay setback, violates the PUD. Nor have Bergers argued
on appeal that Builder has exceeded its role as Sellers’ agent and therefore is
liable as principal. See N.D.C.C. § 3-04-02 (providing when an agent is liable
to third persons). We affirm the grant of summary judgment as to Builder.
B
[¶16] Sellers and Builder argue the PUD violation claims were properly
dismissed because Bergers failed to exhaust their administrative remedies.
The district court concluded Bergers had the right to sue without exhausting
their administrative remedies. Bergers contend this issue was waived because
Sellers and Builder did not appeal from the order rejecting this argument.
Because Sellers and Builder argued in the district court that Bergers failed to
exhaust their administrative remedies and are not seeking a more favorable
result on appeal than they received in the district court, the exhaustion of
remedies argument is properly before us and we turn to the merits of the
argument. [CITATION]
[¶17] Under section 14-05-03 of the Bismarck Code of Ordinances, “It is the
intent of this article that questions arising in connection with the enforcement
of the article shall be presented first to the Zoning Administrator.” As the
district court recognized, Bismarck Code of Ordinances § 14-05-04 provides a
private right of action for certain violations of zoning ordinances:
In case any building or structure is erected, constructed,
reconstructed, repaired, moved, converted or maintained, or any
building, structure, or land is used in violation of this article, the
building inspector or any other appropriate authority or any
adjacent, nearby or neighboring property owner who would be
affected by such violation, in addition to other remedies, may
institute injunction, mandamus, or other appropriate action in
proceeding to prevent the occupancy of such building, structure or
land.
The court concluded the administrative process described in § 14-05-03 does
not require first exhaustion, Bergers could pursue either process, and thus the
express private right of action in § 14-05-04 allowed Bergers to file suit without
exhausting administrative remedies.
[¶18] “Ordinarily, a party must exhaust available administrative remedies
before seeking declaratory or injunctive relief.” [CITATION]. One exception to the exhaustion of
remedies doctrine is “when a legal question simply involves statutory
interpretation and does not need the exercise of an agency’s expertise in
making factual decisions.” [CITATION]. In [CITATION], a hospital
sought judgment declaring the pharmacy it owned was exempt from the
statutory requirement that it be majority-owned by pharmacists. The State
Board of Pharmacy argued the hospital failed to exhaust administrative
remedies before suing for declaratory relief. Id. at ¶ 8. We concluded the
hospital was not required to exhaust administrative remedies prior to suit
because the case involved “only the interpretation of an unambiguous statute,
and does not involve any issues generally reserved to an administrative
decisionmaker.” Id. at ¶ 21.
[¶19] As stated above, the PUD violation claim involves the interpretation of
the PUD, which is governed by the rules of statutory construction. We have
concluded the PUD is unambiguous as to the bay setback requirement, and the
relevant facts are undisputed. Accordingly, we conclude the district court did
not err in determining Bergers did not have to exhaust administrative
remedies prior to bringing suit.
[SEGMENT 9]
IV
A
[¶20] Bergers argue the district court erred in dismissing their breach of
restrictive covenants claims against Sellers and Association.
[¶21] “[A] landowner may sell land subject to restrictive covenants, provided
the covenants are not contrary to public policy.” [CITATION]. Although restrictive covenants are not favored, they will
be given full effect when “clearly established.” Id. “The interpretation of a
restrictive covenant is generally governed by rules for interpretation of a
contract.” Id. “A breach of contract is the nonperformance of a contractual duty
when it is due.” [CITATION]. “The elements of a prima facie case for breach of contract are: (1) the
existence of a contract; (2) breach of the contract; and (3) damages which flow
from the breach.” Id.
[¶22] The restrictive covenants provide:
Building Set Back and Location. THE MISTY WATERS
PLANNED UNIT DEVELOPMENT, Ordinance #5435 (as
amended and adopted on August 23, 2006), which document
is attached hereto as Exhibit “A”, and made a part hereof
by reference, sets forth the corridors within which all residential
structures within the subdivision shall be built. . . . The precise
location of all structures to be constructed on a given Lot shall
be subject to the prior written consent and approval of the
Architectural Control Committee.
Bergers argue that under this covenant the Association has a contractual duty
to ensure homes are built in compliance with the PUD setback requirements
and Sellers have a contractual duty to build their home within the setback
requirements. Given the violation of the PUD’s bay setback, Bergers contend
the Association and Sellers breached their duties.
[¶23] The district court concluded this issue was moot because Sellers did not
violate the PUD setback, and thus determined as a matter of law that Sellers
did not breach the covenants. As to the Association, the court concluded that
under [CITATION] “a homeowner does not have a cause of action against an
association under a breach of contract/covenant/nuisance claim based upon
a failure to enforce restrictions where they are discretionary under the
association’s by-laws.” In [CITATION], we concluded that “it is not necessary to
address the breach of any contractual obligation the Association allegedly owed
to the Ceynars to enforce the covenants” because the district court did not err
in determining the covenants did not prohibit the construction of a pool house,
which was the alleged underlying violation. [CITATION], ¶¶ 11, 18. Thus,
because the construction of the pool house was not in fact a violation of the
covenants, we did not need to reach the additional question of whether the
Association breached a duty to enforce that covenant. Here, we have
determined there was a violation of the PUD, which is incorporated into the
covenants. Thus, this case differs from [CITATION] in that respect and we must
determine whether the Association breached a duty owed to Bergers as stated
in the covenants.
[¶24] Under the restrictive covenants, lot owners are expressly given the
authority to sue “to prevent the breach of, or to enforce the observance of the
covenants.” Similarly, the by-laws allow lot owners to sue other owners or the
Association “for failure to comply with the provisions of the Declaration, these
By-Laws, the Restrictive Covenants or with decisions of the Owners’
Association which are made pursuant to authority granted the Owners’
Association in such documents.” Under these provisions, Bergers can sue
Sellers and the Association for violating the covenants. The restrictive
covenants incorporate by reference the 2006 PUD and require homes to be built
according to the PUD requirements. Because Sellers’ home violates the 2006
PUD bay setback, we conclude Sellers violated the covenant incorporating that
requirement and breached their contractual duty owed to Bergers.
[¶25] As to the Association, Bergers rely on the same provisions of the
restrictive covenants incorporating by reference the 2006 PUD setback
requirements. Bergers contend that because homes cannot be located beyond
the minimum setback from the bay and Sellers’ home violates this setback
requirement, the Association breached its duty to “only approve structures that
comply with the PUD.” While the covenants and by-laws allow lot owners to
sue the Association for a violation of the covenants, the covenant alleged to be
breached must be “clearly established.” [CITATION]. Bergers
have not demonstrated that the Association has a contractual obligation to
them to “only approve structures that comply with the PUD” or that the
Association breached an express provision of the covenants. In fact, the
restrictive covenants state the Association’s ACC “shall have total discretion
in the approval or rejection of construction plans and the location of all
structures to be constructed on each Residential Lot within the Misty Waters.”
See also [CITATION] (deferring to homeowners’ association’s
finding that covenant prohibiting nuisances was not violated when covenant
gave its architectural committee “sole discretion” to determine whether a
nuisance existed for purposes of that covenant). Thus, we conclude the
Association did not breach a contractual duty in the restrictive covenants and
the district court did not err in dismissing the claim as to the Association.
[¶26] We reverse the district court’s grant of summary judgment to Sellers,
concluding as a matter of law Sellers breached the restrictive covenant
incorporating the PUD’s bay setback requirement. We remand to the court with
instructions to grant [CITATION] partial summary judgment against Sellers on the
breach of restrictive covenants claim as requested in their motion for partial
summary judgment. We affirm the grant of summary judgment on the
restrictive covenants claims as to the other defendants.
B
[¶27] Sellers argue the district court lacked subject matter jurisdiction over
Bergers’ claim they violated the covenants and therefore the claim was
properly dismissed by the court (albeit for another reason). Sellers contend
provisions of the covenants and by-laws preclude the court from determining
violations of the covenants. Specifically, Sellers cite the covenant granting the
ACC total discretion in approving or rejecting construction plans and structure
locations. Sellers also cite a by-law stating that the ACC “shall have the
exclusive power, discretion and jurisdiction to approve, modify, or amend plans
to cause proposed modifications or improvements to be in conformity and to be
compatible with the general building and architectural design.”
[¶28] The district court concluded it had subject matter jurisdiction based
upon the clear right of action for lot owners under the restrictive covenants
and by-laws. We agree. The covenants expressly give lot owners the right to
sue “to prevent the breach of, or to enforce the observance of the covenants.”
The by-laws provide lot owners an express right of action against other lot
owners for failure to comply with the provisions of the covenants and by-laws.
Thus, the covenants and by-laws have not stripped the court of subject matter
jurisdiction as Sellers argue, and we conclude the court did not err in exercising
its jurisdiction.
V
[¶29] Bergers contend the district court erred in granting summary judgment
on their breach of fiduciary duty claim against the Association. To establish a
breach of fiduciary duty, the plaintiff must prove: 1) a fiduciary relationship
between the plaintiff and defendant; 2) a duty by the defendant to the plaintiff
arising from that relationship; 3) the defendant’s breach of that duty; and 4)
damage to the plaintiff proximately caused by that breach of duty. In re Estate
of Sande, [CITATION]. The court concluded Bergers
failed to show the existence of a fiduciary relationship between Bergers and
the Association. The court noted the parties did not cite any case law that
would support a fiduciary relationship in this situation and North Dakota
statutory law does not recognize such a relationship.
[¶30] Bergers argue whether a fiduciary relationship exists is a question of fact
and under the facts of this case, the fiduciary relationship exists between them
and the Association. “Whether a fiduciary relationship exists is generally a
question of fact, dependent upon a showing of special circumstances.” Prod.
Credit Ass’n of Fargo v. Ista, [CITATION]. In viewing the
facts in a light most favorable to Bergers as the non-movant on this claim in
the summary judgment stage, a genuine dispute of material fact exists as to
whether a fiduciary relationship exists between Bergers and the Association.
While a relationship between the parties exists, whether it is akin to a
fiduciary relationship requires the fact finder to weigh the evidence. Thus, we
conclude the district court erred in concluding as a matter of law no fiduciary
relationship can exist between a homeowner and the homeowners’ association.
[¶31] The district court also concluded as a matter of law the Association did
not breach any such fiduciary duty. The Association urges the Court to apply
the “business judgment” rule, precluding judicial review of legitimate business
decisions of the Association, absent fraud or bad faith. In [CITATION],
this Court applied the business judgment rule
to a condominium board’s actions regarding repairs to the condominium
common areas. [CITATION]. Under the business judgment
rule, “absent claims of fraud, self-dealing, unconscionability or other
misconduct, the court . . . should limit its inquiry to whether the [board’s] action
was authorized and whether it was taken in good faith and in furtherance of
the legitimate interests of the condominium.” Id. Even if the business
judgment rule applied to the ACC’s approval of Sellers’ home, which we express
no opinion on, factual disputes remain. For example, the president of the
Association, who was a member of the ACC, testified she did not review the
PUD prior to approving construction of Sellers’ home. The vice-president
testified he did not review the PUD when he joined the Association’s board in
2018, which is also when he became a member of the ACC, and believed the
setback from the bay was the same line as the drainage easement. He further
testified that he and the president were the only two members of the ACC at
one time during the construction approval process of Sellers’ home. Thus, a
genuine dispute of material fact exists as to whether the Association breached
any duty it owed to [CITATION] when the ACC approved the construction of Sellers’
home. We reverse the grant of summary judgment on [CITATION]' claim of breach
of fiduciary duty against the Association.
[SEGMENT 10]
VI
[¶32] [CITATION] argue the district court erred in granting summary judgment
dismissing their private nuisance claims against Sellers and the Association.
“A nuisance consists in unlawfully doing an act or omitting to perform a duty,
which act or omission: 1. Annoys, injures, or endangers the comfort, repose,
health, or safety of others; . . . or 4. In any way renders other persons insecure
in life or in the use of property.” N.D.C.C. § 42-01-01; see also N.D.C.C. § 42-
01-02 (defining private nuisance as affecting “a single individual or a
determinate number of persons in the enjoyment of some private right not
common to the public”). “Whether a statutory nuisance exists is a mixed
question of fact and law.” [CITATION]
[¶33] The restrictive covenants state their purpose, in part, is “to prevent
nuisances, to prevent the impairment of the attractiveness of the property,”
and to secure each owner the “full benefit and enjoyment of his or her home
and Residential Lot.” The district court concluded the nuisance claims based
on theories of PUD and covenant violations were moot given its determination
that there were no violations. As explained above, the Sellers violated the bay
setback requirement in the PUD and restrictive covenants. The PUD and
covenant violations constitute an “unlawful” act for purposes of a nuisance
under N.D.C.C. § 42-01-01. We conclude the court erred in granting summary
judgment to Sellers on Bergers’ nuisance claim.
[¶34] In addition to the PUD and covenant setback violations, Bergers contend
Sellers’ home creates a nuisance through violations of the North Dakota
Century Code and Bismarck Code of Ordinances. Under N.D.C.C. § 40-47-
03(4), zoning regulations are designed, in part, to provide adequate light. See
also Bismarck Code of Ordinances § 14-02-01 (same). Under § 14-04-18 of the
Bismarck Code of Ordinances, PUDs are intended in part “to preserve the
natural and scenic features of open space.” Bergers assert these general
provisions are violated by Sellers’ home blocking light and preventing natural
and scenic open spaces. In [CITATION], we rejected the homeowners’ nuisance claim
based on their neighbor’s pool house obstructing their view of the “open prairie
look” in their subdivision. [CITATION] We concluded the
homeowners had no cognizable right to an unobstructed view from their
property and as a matter of law the neighbor’s pool house did not unreasonably
interfere with their use and enjoyment of their property. [CITATION] Similarly,
we conclude Bergers do not have a right to sunlight and open space on adjacent
properties. As a matter of law, Sellers’ home does not unreasonably interfere
with Bergers’ use and enjoyment of their property. Thus, to the extent Bergers
====== argue Sellers’ home creates a nuisance—independent from the PUD/covenant
setback violations—by blocking light and preventing natural and scenic open
spaces, we affirm the grant of summary judgment.
[¶35] We reverse summary judgment on Bergers’ claim of private nuisance
against Sellers based on the setback violation. Because we conclude the
Association did not violate the restrictive covenants, we affirm the district
court’s grant of summary judgment dismissing the nuisance claim against the
Association.
VII
[¶36] Bergers argue the district court erred in granting summary judgment
dismissing their negligence claims against Sellers, Builder, and the
Association. “Actionable negligence consists of a duty on the part of an
allegedly negligent party to protect the plaintiff from injury, a failure to
discharge that duty, and a resulting injury proximately caused by the breach
of the duty.” [CITATION]. “Conduct that constitutes a breach of contract does not subject the actor to an
action in tort for negligence, unless the conduct also constitutes a breach of an
independent duty that did not arise from the contract.” [CITATION]. Bergers assert the
defendants owe them a duty independent from the covenants under N.D.C.C.
§ 9-10-01, which states, “Every person is bound without contract to abstain
from injuring the person or property of another or infringing upon any of that
person’s rights.” Bergers contend that defendants breached this statutory duty
by infringing upon their “right to the full benefit and enjoyment of their
property, right to be free from private nuisances” and “right to adequate light
and the preservation of natural and scenic open spaces.”
[¶37] “Negligence actions involve issues of fact and generally are inappropriate
for summary judgment.” [CITATION]. Whether a duty of care is owed, however, is generally a question
of law:
Generally, the existence of a duty is a preliminary question
of law for the court. When a duty does not exist, there is no
negligence. If determining the existence of a duty depends on
resolving factual issues, the facts must be resolved by the trier of
fact. However, issues of fact may become issues of law for the court
if reasonable persons could reach only one conclusion from the
facts.
Id. at ¶ 10 (cleaned up).
[¶38] Section 9-10-01, N.D.C.C., was derived from David Dudley Field’s
proposed Civil Code of the State of New York § 847 (1865) (“Civil Code”), which
was adopted by the Dakota Territory legislature. See Revised Codes of the
Territory of Dakota § 973 (1877); [CITATION]; William B. Fisch, Civil Code: Notes for an Uncelebrated Centennial, 43 N.D. L.
Rev. 485, 485-86 (1967). To the extent Bergers argue § 9-10-01 requires a
special or heightened duty of care by defendants, we reject that argument.
Section 9-10-01 codifies the general duty of care to abstain from injuring
property or infringing upon rights. [CITATION] (stating N.D.C.C. § 9-10-01 recognizes the “general duty of care”);
[CITATION] (recognizing “property owner’s general duty to ensure that his
property does not injure others or their property” under N.D.C.C. §§ 9-10-01,
9-10-06, 42-01-01(4)); see also N.D.C.C. § 9-10-06 (“A person is responsible . . .
for an injury occasioned to another by the person’s want of ordinary care or
skill in the management of the person’s property or self.”). Other states
adopting this Civil Code provision have similarly recognized it sets forth the
general duty of care. See [CITATION]; see also [CITATION] (“California court decisions construing Field Code sections, while
not binding, are entitled to respectful consideration, and may be ‘persuasive
and should not be ignored.’”); [CITATION]
(same with other Civil Code states). Thus, we apply general negligence
principles in determining whether Sellers, Builder, or the Association owed
Bergers a duty of care. Under general negligence principles, we have “focused
on both foreseeability of injury and the relationship of the parties in deciding
whether a duty exists.” [CITATION]
[¶39] Bergers contend Sellers owed them a duty to not construct their home so
as to injure their property interests. They assert that because the harm caused
by the construction of the home was foreseeable and their relationship is that
of next-door neighbors and Association members, Sellers had a legal obligation
to prevent harm. We conclude Sellers owed Bergers the ordinary duty of care
amongst neighbors in a homeowners’ association.
[¶40] Bergers argue Sellers’ home harms them by extending beyond the
setbacks, blocking light, and causing “ongoing drainage issues.” Because
Sellers’ setback duties derive exclusively from the PUD and covenants, Sellers
do not owe Bergers an independent duty to abide by the setbacks beyond their
contractual duties. See [CITATION]. Thus, any
negligence claim against Sellers based on the setbacks fails as a matter of law.
[¶41] Bergers’ negligence claim against Sellers based on Sellers’ home blocking
light and preventing natural and scenic open spaces fails for the same reason
it failed under the nuisance claim. Bergers have no right to sunlight and open
space on adjacent properties. Therefore, Sellers have no duty to ensure Bergers
retain unobstructed access to sunlight and open space when constructing a
home on their property.
[¶42] On the drainage issue, Bergers submitted a report in response to Sellers’
motion for summary judgment in which Bergers’ expert opines that they would
need to expend $5,000 to $10,000 to improve the drainage issues, which
Bergers allege are caused by Sellers’ home. This raises a genuine issue of
material fact whether Sellers negligently built their home, preventing proper
drainage and causing damage to Bergers’ property. See [CITATION] (noting “[t]he casting of surface waters
from one’s own land upon the land of another under circumstances where the
resulting damage was foreseen or foreseeable, is tortious and liability results
[SEGMENT 11]
if the interference with the flow of surface waters is found to be unreasonable,”
which is a question of fact). Whether Sellers’ home is the proximate cause of
the alleged drainage damage is also a disputed question of fact. Thus, we
conclude a genuine dispute of material fact exists as to the drainage issue for
which summary judgment was inappropriately granted to Sellers.
[¶43] Bergers assert the Association owed them a duty to not approve a home
construction that would foreseeably injure their interests. We agree the
Association owed Bergers, as members of the Association, reasonable care in
approving construction plans. As with the discussion on the claim for breach of
fiduciary duty, we do not opine on the extent of this relationship at this
summary judgment stage. The fact finder must determine how a reasonable
homeowners’ association would act under the circumstances and whether this
Association exercised reasonable care in performing its duties. Further, a
genuine dispute of material fact exists as to whether the Association’s actions
or omissions proximately caused the alleged harm. Therefore, we conclude
genuine issues of material fact exist on Bergers’ negligence claim against the
Association.
[¶44] Bergers argue Builder owed them a duty to not construct a home in a
manner that injured them. “[O]ne who undertakes to design and construct a
structure has a duty to exercise ordinary care and skill to protect any who
foreseeably, or with reasonable anticipation, may be injured by the failure to
do so.” [CITATION]. “Generally, a contractor may be relieved of liability if he followed the
contractee’s plans or specifications which were defective or insufficient, and
the defect or insufficiency caused the damage.” [CITATION]. “[A] contractor who
follows the owner’s plans and specifications may be liable if they are ‘so
obviously defective and dangerous that no reasonable man would follow them.’”
[CITATION]. Bergers do not argue that Builder failed to follow Sellers’ plans
or specifications in constructing their home. Nor do Bergers contend the plans
and specifications were “so obviously defective and dangerous that no
reasonable man would follow them.” Thus, on this record, we conclude the
district court did not err in determining as a matter of law that Builder was
not liable to Bergers in its construction of Sellers’ home.
[¶45] Under the general duty of care and the record before us, we conclude the
district court erred in determining as a matter of law that Sellers owe no duty
of care to Bergers regarding alleged drainage damage caused by Sellers’ home.
We further conclude the court erred in determining as a matter of law the
Association owed no duty to Bergers. We conclude genuine disputes of material
fact exist as to whether Sellers and the Association breached a duty owed to
Bergers to abstain from injuring property or infringing upon Bergers’ rights,
and whether a resulting injury was proximately caused by the alleged breach
of the duty. [CITATION] We reverse the grant of summary judgment dismissing Bergers’ negligence claims
against the Association and against Sellers on the drainage issue. We affirm
the grant of summary judgment dismissing Bergers’ negligence claim against
Builder.
VIII
[¶46] Sellers and Builder argue the district court erred in dismissing their
claims of defamation, interference with contract and business, and negligence
against Bergers and Jeff Carlson. These claims are based upon the
conversations between Darren Berger, Jeff Carlson, and David Rogstad and
the subsequent actions taken by Starion on pausing payments on the
construction loan for one to two weeks and removing Big River Builders from
its “approved builders list.” The relevant statements include: Darren Berger
telling Carlson that he was contemplating commencing a lawsuit against
Sellers and Big River Builders because he believed Sellers’ home was built
beyond the bay setback; Carlson telling Rogstad, a Starion employee, he
believed Sellers’ home was “50, 60 feet past the setback” and a possible lawsuit
was “coming his way”; and Darren Berger telling Rogstad that he believed
Sellers’ home was built beyond the “flood line” and pointing out the stake he
believed marked that line. For the reasons stated below, we affirm the
dismissal of these claims.
A
[¶47] Builder argues the district court erred in granting summary judgment
and dismissing its defamation claims against Darren Berger and Carlson.
Defamation consists of slander and libel. N.D.C.C. § 14-02-02. “Slander is a
false and unprivileged publication other than libel.” N.D.C.C. § 14-02-04.
Because we conclude Sellers’ home violates the setback requirement, Darren
Berger’s and Carlson’s statements that Sellers’ home was built beyond the
setback are not false and cannot be defamatory.
B
[¶48] Sellers and Builder argue the district court erred in dismissing their
intentional interference with contract claims against Bergers and Carlson. “To
establish a prima facie case for intentional interference with contract, a
plaintiff must prove (1) a contract existed, (2) the contract was breached, (3)
the defendant instigated the breach, and (4) the defendant instigated the
breach without justification.” [CITATION]. Sellers and Big River Builders alleged Berger and Carlson
interfered with the construction contract between Sellers and Builder and the
construction loan agreement between Sellers and Starion. The district court
concluded no evidence was presented showing either of these contracts was
breached. Specifically as to the construction contract, the court concluded that
Big River Builders was paid in full for the construction, the home was
completed by the Fall 2020 Parade of Homes as contracted, and the
subcontractors and suppliers were paid in full without any late payment fees
or interest charges. As to the construction loan agreement, the court noted that
Starion did not pull the loan; rather Sellers elected to obtain a loan with
another bank. Sellers and Builder do not cite any express provision of the
contracts that was breached. Thus, dismissal of these claims was warranted.
C
[¶49] Builder contends Darren Berger’s and Carlson’s statements to Starion
employee Rogstad caused the delays in payments and removal from the
approved builders list, interfering with its business relationships or
expectancies. “[T]o prevail on a claim for unlawful interference with business,
a plaintiff must prove the following essential elements: (1) the existence of a
valid business relationship or expectancy; (2) knowledge by the interferer of
the relationship or expectancy; (3) an independently tortious or otherwise
unlawful act of interference by the interferer; (4) proof that the interference
caused the harm sustained; and (5) actual damages to the party whose
relationship or expectancy was disrupted.” [CITATION]. We conclude Builder
failed as a matter of law to show Bergers or Carlson committed an independent
tort or otherwise unlawful act of interference.
D
[¶50] Sellers and Builder argue the district court erred in dismissing their
negligence claims against Bergers. They assert Bergers violated their duty
under N.D.C.C. § 9-10-01 to refrain from infringing upon their rights. We
conclude as a matter of law a breach of duty did not occur because Darren
Berger did not make false statements. Accordingly, the negligence claims were
properly dismissed.
IX
[¶51] We have considered the parties’ remaining arguments and conclude they
are either without merit or unnecessary to our decision. We reverse the district
court’s grant of summary judgment on Bergers’ claims against Sellers for
violation of the PUD, breach of restrictive covenants, negligence (drainage),
and private nuisance (setbacks). We remand with instructions to grant Bergers
partial summary judgment on their claims against Sellers for violation of the
PUD and breach of restrictive covenants and for declaratory relief (against
Sellers) as requested in their motion for partial summary judgment. We
reverse the court’s grant of summary judgment on Bergers’ claims against the
Association for breach of fiduciary duty and negligence. We affirm the court’s
grant of summary judgment on all of Bergers’ claims against Builder, namely
the PUD violation, breach of restrictive covenants, and negligence. We affirm
the grant of summary judgment on Bergers’ claims against the Association for
breach of restrictive covenants and private nuisance. We affirm the grant of
summary judgment on all of Sellers’ and Builder’s claims. The judgment is
affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
[¶52] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
Bradley A. Cruff, D.J.
[¶53] The Honorable Bradley A. Cruff, District Judge, sitting in place of
Crothers, J., disqualified.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 159
N.D. Energy Services, LLC, Plaintiff and Appellant
v.
Lime Rock Resources III-A, L.P. and
Herman Energy Services, LLC, Defendants and Appellees
No. 20240096
Appeal from the District Court of Dunn County, Southwest Judicial District, the Honorable
Rhonda Rae Ehlis, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Lawrence Bender and Spencer D. Ptacek, Bismarck, ND, for plaintiff and appellant;
submitted on brief.
Paul J. Forster, Benjamin J. Sand, and Erik J. Edison, Bismarck, ND, for defendant and
appellee Lime Rock Resources III-A, L.P.; submitted on brief.
Quinn P. Fylling, Bismarck, ND, for defendant and appellee Herman Energy Services,
LLC; submitted on brief. [CITATION]
No. 20240096
Bahr, Justice.
[¶1] ND Energy Services, LLC, appeals a district court judgment denying its motion for
summary judgment, granting summary judgment in favor of Lime Rock Resources III-A,
L.P. and Herman Energy Services, LLC (collectively referred to as “Lime Rock”), and
dismissing ND Energy’s claims against Lime Rock. We conclude the leases provide Lime
Rock the right to install layflat hoses on the property at issue; ND Energy had notice of
Lime Rock’s rights in the property; and Lime Rock was justified in instigating a breach of
the temporary layflat easement between ND Energy and Kathleen Stroh. We affirm.
I
[¶2] In 2005, a company entered oil and gas leases with Kathleen Stroh, the surface
owner, and William and Evelyn Schmalz, severed mineral owners. The leases covered the
same property, including the subject property. The leases were recorded. Lime Rock
subsequently acquired ownership of both leases. Lime Rock spud wells on the property in
2009 and 2010. Lime Rock maintained both leases by continuous production from the
wells.
[¶3] In 2011, Stroh signed a surface use and damage agreement with another company.
The surface use agreement was not recorded. However, a memorandum of the surface use
agreement was recorded. Lime Rock subsequently acquired an interest in the surface use
agreement.
[¶4] On February 23, 2023, Stroh signed a temporary layflat easement agreement with
ND Energy. The agreement granted ND Energy “the exclusive right to transfer freshwater
via aboveground layflat hose, and/or any other conduits on and through the Property,” for
one year from its effective date.
[¶5] In May 2023, Lime Rock placed layflat hoses across the property. “The layflat hoses
at issue were used to transport water to frack [two] wells which Lime Rock operates.” Lime
Rock used the layflat hoses from May 23, 2023 to June 30, 2023.
[¶6] ND Energy brought this suit against Lime Rock alleging claims of tortious
interference of contract and willful trespass, and requesting a permanent injunction. Lime
Rock and ND Energy moved for summary judgment. The district court granted summary
judgment in favor of Lime Rock and dismissed ND Energy’s claims.
II
[¶7] The standard of review for summary judgment is well established:
In deciding whether the district court appropriately granted summary
judgment, we view the evidence in the light most favorable to the opposing
party, giving that party the benefit of all favorable inferences which can
reasonably be drawn from the record. A party opposing a motion for
summary judgment cannot simply rely on the pleadings or on unsupported
conclusory allegations. Rather, a party opposing a summary judgment
motion must present competent admissible evidence by affidavit or other
comparable means that raises an issue of material fact and must, if
appropriate, draw the court's attention to relevant evidence in the record
raising an issue of material fact. When reasonable persons can reach only one
conclusion from the evidence, a question of fact may become a matter of law
for the court to decide. A district court's decision on summary judgment is a
question of law that we review de novo on the record.
[CITATION]
A
[¶8] ND Energy argues the district court erred when it concluded the leases grant Lime
Rock the right to install and operate layflat hoses on the property. The court held, “Lime
Rock is entitled to reasonable use of the surface of the property to develop oil and gas by
way of the leases underlying the property under the accommodation doctrine.”
[¶9] The leases provide the lessor grants, demises, leases, and lets exclusively to the
lessee the subject property,
with the exclusive right for the purpose of mining, exploring by geophysical
and other methods, and operating for and producing therefrom oil and all gas
of whatsoever nature or kind, with rights of way and easements for laying
pipe lines, and erection of structures thereon to produce, save and take care
of said products[.]
[¶10] ND Energy agrees an easement to install and operate layflat hoses on the property
“is necessary for Lime Rock’s use of the Subject Property pursuant to the Leases.” As
noted by the district court, “It appears the parties do not dispute that fresh water is necessary
for fracking operations to develop oil and gas.” However, citing N.D.C.C. § 9-07-21, ND
Energy argues a layflat hose easement is excluded “[b]ecause the Leases expressly grant
certain easements to Lime Rock[.]” Section 9-07-21 provides, “All things that in law or
usage are considered as incidental to a contract or as necessary to carry it into effect are
implied therefrom, unless some of them are mentioned expressly therein. In such case, all
other things of the same class are deemed to be excluded.” Because the leases specifically
mention the right to lay pipelines, ND Energy asserts they exclude the right to install and
operate layflat hoses.
[¶11] Rejecting ND Energy’s argument, the district court wrote:
The Court does not find that the rights to use layflat hose and pipeline are mutually
exclusive, such that the inclusion of the right to install pipeline then means that the
use of layflat hose is excluded under the agreement because they are of the same
class. They do not necessarily replace each other. They can have different functions.
. . . [T]he Court concludes the plain and unambiguous language of the leases do not
repel the construction that Lime Rock can use layflat hose on the property.
[¶12] “The same general rules that govern interpretation of a contract apply to oil and gas
leases.” [CITATION]. “The construction of a written contract to determine its legal effect is a question of law and on
appeal, this Court will independently examine and construe the contract to determine if the
trial court erred in its interpretation.” Id. “Words in a contract are construed in their
ordinary and popular sense, unless used by the parties in a technical sense or given a special
meaning.” Id. at ¶ 8. “A contract must be read and considered in its entirety so that all of
its provisions are taken into consideration to determine the parties’ true intent.” Id.
[¶13] “Under a usual oil and gas lease, the lessee, in developing the leased premises, is
entitled to use of the land reasonably necessary in producing the oil[.]” [CITATION]. “Even though the surface rights of the lessee
may arise by implication, it is important to note that lessee’s rights are primarily governed
by the specific grant of such rights in the lease.” Id.
Whether the express uses are set out or not, the mere granting of the lease creates
and vests in the lessee the dominant estate in the surface of the land for the purposes
of the lease; by implication it grants the lessee the use of the surface to the extent
necessary to a full enjoyment of the grant. Without such use, the mineral estate
obtained under the lease would be worthless.
Id. (quoting [CITATION].
[¶14] We agree with the district court that the specific inclusion of pipelines in the leases
does not exclude the use of layflat hoses. The leases are broad, granting “exclusively” to
Lime Rock the property “with the exclusive right for the purpose of” producing oil and
gas. As acknowledged by ND Energy, Lime Rock’s installment and operation of layflat
hoses “is necessary for Lime Rock’s use of the Subject Property pursuant to the Leases.”
Moreover, ND Energy asserts layflat hoses were not used in the Bakken when the leases
were entered. Thus, the leases’ lack of reference to layflat hoses could not have been the
result of an intentional exclusion. Finally, Lime Rock’s use of temporary layflay hoses to
transport water is the same or less of a burden on the surface property than its use of
pipelines to transport oil, gas, or other products. Nothing in the leases’ broad language
indicates an intent to exclude the lessee’s use of layflat hoses.
[¶15] We conclude the district court did not err when it held the leases are unambiguous
and that the leases provide Lime Rock the authority to use layflat hoses on the property.
Because of this conclusion, we need not address whether the surface use agreement also
granted Lime Rock the right to use layflat lines on the property.
[SEGMENT 2]
B
[¶16] Citing N.D.C.C. § 47-19-41, ND Energy argues the district court erred when it
concluded the surface use agreement was not void because it was never recorded. See
section 47-19-41 (“An unrecorded conveyance of real estate is void as against any
subsequent purchaser in good faith, and for a valuable consideration, of the same real estate
or any part of the same real estate[.]”) ND Energy argues it was a good-faith purchaser of
the 2023 temporary layflat easement agreement because it was not on notice of the surface
use agreement. Lime Rock argues the memorandum of the surface use agreement, which
was recorded, put ND Energy on notice of the surface use agreement. The district court
concluded, “The recording of the memorandum of the surface agreement and the lease
agreements should have put ND Energy on notice regarding Lime Rock’s potential
property rights.”
[¶17] Section 47-19-19, N.D.C.C., provides, “The record of any instrument shall be notice
of the contents of the instrument, as it appears of record, as to all persons.” Section 47-19-
46, N.D.C.C., provides, “An unrecorded instrument is valid as between the parties thereto
and those who have notice thereof.” “This Court has ‘consistently held that a purchaser
who fails to make the requisite inquiry cannot claim the protection of a good-faith
purchaser status’ under N.D.C.C. § 47-19-41.” [CITATION] (quoting [CITATION]). “Rather, a person who fails to make the proper inquiry will be charged with
constructive notice of all facts that such inquiry would have revealed.” Id. (quoting
[CITATION], at ¶ 10).
[¶18] The recorded memorandum of surface use agreement provided ND Energy
constructive notice of the surface use agreement. By inquiring into the recorded
memorandum, ND Energy would have discovered a surface use agreement was in place
for the land before it entered the layflat easement agreement. Therefore, ND Energy was
not a good-faith purchaser of the surface use rights. See [CITATION].
[¶19] We conclude the district court did not err when it concluded ND Energy had notice
of the surface use agreement and was not a good-faith purchaser.
C
[¶20] ND Energy argues the district court erred in dismissing its claims against Lime Rock
for tortious interference with contract and permanent injunction. ND Energy argues it has
a layflat agreement with Stroh, and Lime Rock’s installation of its layflat hoses on the
property interfered in ND Energy’s exclusive right to install layflat hoses on the property.
[¶21] “To establish a prima facie case for intentional interference with contract, a plaintiff
must prove (1) a contract existed, (2) the contract was breached, (3) the defendant instigated
the breach, and (4) the defendant instigated the breach without justification.” [CITATION] (quoting [CITATION]).
[¶22] The district court denied ND Energy’s claim for tortious interference with a
contract, concluding ND Energy could not establish the last element of the tortious
interference of contract claim. After concluding “Lime Rock had the right to use layflat
hose to transport fresh water across the property, in accordance with the accommodation
doctrine, by way of the lease agreements and surface use agreement[,]” the court wrote, “It
may be questionable whether the agreement between Stroh and ND Energy is even valid,
but certainly Lime Rock did not instigate a breach without justification.” Explaining its
conclusion, the court wrote, “Lime Rock had justification because it was previously
granted the right to use layflat hose on the property.”
[¶23] Regarding “ND Energy’s request for a permanent injunction prohibiting Lime Rock
from interfering with ND Energy's rights to the property[,]” the district court wrote: “A
permanent injunction prohibiting Lime Rock from interfering with ND Energy’s alleged
exclusive right to use layflat hose on the property is not appropriate, since this Court
determines Lime Rock already had the right to do so prior to ND Energy entering into its
agreement with Stroh.”
[¶24] As concluded above, Lime Rock had the right to use the layflat hoses on the property
through the leases. Based on that determination, we conclude the district court did not err
in holding ND Energy’s claims for tortious interference with contract and permanent
injunction fail.
III
[¶25] We have considered the parties’ other arguments and conclude they are either
without merit or unnecessary for our decision. We affirm.
[¶26] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 159
N.D. Energy Services, LLC, Plaintiff and Appellant
v.
Lime Rock Resources III-A, L.P. and
Herman Energy Services, LLC, Defendants and Appellees
No. 20240096
Appeal from the District Court of Dunn County, Southwest Judicial District, the Honorable
Rhonda Rae Ehlis, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Lawrence Bender and Spencer D. Ptacek, Bismarck, ND, for plaintiff and appellant;
submitted on brief.
Paul J. Forster, Benjamin J. Sand, and Erik J. Edison, Bismarck, ND, for defendant and
appellee Lime Rock Resources III-A, L.P.; submitted on brief.
Quinn P. Fylling, Bismarck, ND, for defendant and appellee Herman Energy Services,
LLC; submitted on brief. [CITATION]
No. 20240096
Bahr, Justice.
[¶1] ND Energy Services, LLC, appeals a district court judgment denying its motion for
summary judgment, granting summary judgment in favor of Lime Rock Resources III-A,
L.P. and Herman Energy Services, LLC (collectively referred to as “Lime Rock”), and
dismissing ND Energy’s claims against Lime Rock. We conclude the leases provide Lime
Rock the right to install layflat hoses on the property at issue; ND Energy had notice of
Lime Rock’s rights in the property; and Lime Rock was justified in instigating a breach of
the temporary layflat easement between ND Energy and Kathleen Stroh. We affirm.
I
[¶2] In 2005, a company entered oil and gas leases with Kathleen Stroh, the surface
owner, and William and Evelyn Schmalz, severed mineral owners. The leases covered the
same property, including the subject property. The leases were recorded. Lime Rock
subsequently acquired ownership of both leases. Lime Rock spud wells on the property in
2009 and 2010. Lime Rock maintained both leases by continuous production from the
wells.
[¶3] In 2011, Stroh signed a surface use and damage agreement with another company.
The surface use agreement was not recorded. However, a memorandum of the surface use
agreement was recorded. Lime Rock subsequently acquired an interest in the surface use
agreement.
[¶4] On February 23, 2023, Stroh signed a temporary layflat easement agreement with
ND Energy. The agreement granted ND Energy “the exclusive right to transfer freshwater
via aboveground layflat hose, and/or any other conduits on and through the Property,” for
one year from its effective date.
[¶5] In May 2023, Lime Rock placed layflat hoses across the property. “The layflat hoses
at issue were used to transport water to frack [two] wells which Lime Rock operates.” Lime
Rock used the layflat hoses from May 23, 2023 to June 30, 2023.
[¶6] ND Energy brought this suit against Lime Rock alleging claims of tortious
interference of contract and willful trespass, and requesting a permanent injunction. Lime
Rock and ND Energy moved for summary judgment. The district court granted summary
judgment in favor of Lime Rock and dismissed ND Energy’s claims.
II
[¶7] The standard of review for summary judgment is well established:
In deciding whether the district court appropriately granted summary
judgment, we view the evidence in the light most favorable to the opposing
party, giving that party the benefit of all favorable inferences which can
reasonably be drawn from the record. A party opposing a motion for
summary judgment cannot simply rely on the pleadings or on unsupported
conclusory allegations. Rather, a party opposing a summary judgment
motion must present competent admissible evidence by affidavit or other
comparable means that raises an issue of material fact and must, if
appropriate, draw the court's attention to relevant evidence in the record
raising an issue of material fact. When reasonable persons can reach only one
conclusion from the evidence, a question of fact may become a matter of law
for the court to decide. A district court's decision on summary judgment is a
question of law that we review de novo on the record.
[CITATION]
A
[¶8] ND Energy argues the district court erred when it concluded the leases grant Lime
Rock the right to install and operate layflat hoses on the property. The court held, “Lime
Rock is entitled to reasonable use of the surface of the property to develop oil and gas by
way of the leases underlying the property under the accommodation doctrine.”
[SEGMENT 3]
[¶9] The leases provide the lessor grants, demises, leases, and lets exclusively to the
lessee the subject property,
with the exclusive right for the purpose of mining, exploring by geophysical
and other methods, and operating for and producing therefrom oil and all gas
of whatsoever nature or kind, with rights of way and easements for laying
pipe lines, and erection of structures thereon to produce, save and take care
of said products[.]
[¶10] ND Energy agrees an easement to install and operate layflat hoses on the property
“is necessary for Lime Rock’s use of the Subject Property pursuant to the Leases.” As
noted by the district court, “It appears the parties do not dispute that fresh water is necessary
for fracking operations to develop oil and gas.” However, citing N.D.C.C. § 9-07-21, ND
Energy argues a layflat hose easement is excluded “[b]ecause the Leases expressly grant
certain easements to Lime Rock[.]” Section 9-07-21 provides, “All things that in law or
usage are considered as incidental to a contract or as necessary to carry it into effect are
implied therefrom, unless some of them are mentioned expressly therein. In such case, all
other things of the same class are deemed to be excluded.” Because the leases specifically
mention the right to lay pipelines, ND Energy asserts they exclude the right to install and
operate layflat hoses.
[¶11] Rejecting ND Energy’s argument, the district court wrote:
The Court does not find that the rights to use layflat hose and pipeline are mutually
exclusive, such that the inclusion of the right to install pipeline then means that the
use of layflat hose is excluded under the agreement because they are of the same
class. They do not necessarily replace each other. They can have different functions.
. . . [T]he Court concludes the plain and unambiguous language of the leases do not
repel the construction that Lime Rock can use layflat hose on the property.
[¶12] “The same general rules that govern interpretation of a contract apply to oil and gas
leases.” [CITATION]. “The construction of a written contract to determine its legal effect is a question of law and on
appeal, this Court will independently examine and construe the contract to determine if the
trial court erred in its interpretation.” Id. “Words in a contract are construed in their
ordinary and popular sense, unless used by the parties in a technical sense or given a special
meaning.” Id. at ¶ 8. “A contract must be read and considered in its entirety so that all of
its provisions are taken into consideration to determine the parties’ true intent.” Id.
[¶13] “Under a usual oil and gas lease, the lessee, in developing the leased premises, is
entitled to use of the land reasonably necessary in producing the oil[.]” [CITATION].
“Even though the surface rights of the lessee may arise by implication, it is important to note that lessee’s rights are primarily governed
by the specific grant of such rights in the lease.” Id.
Whether the express uses are set out or not, the mere granting of the lease creates
and vests in the lessee the dominant estate in the surface of the land for the purposes
of the lease; by implication it grants the lessee the use of the surface to the extent
necessary to a full enjoyment of the grant. Without such use, the mineral estate
obtained under the lease would be worthless.
Id. (quoting [CITATION].
[¶14] We agree with the district court that the specific inclusion of pipelines in the leases
does not exclude the use of layflat hoses. The leases are broad, granting “exclusively” to
Lime Rock the property “with the exclusive right for the purpose of” producing oil and
gas. As acknowledged by ND Energy, Lime Rock’s installment and operation of layflat
hoses “is necessary for Lime Rock’s use of the Subject Property pursuant to the Leases.”
Moreover, ND Energy asserts layflat hoses were not used in the Bakken when the leases
were entered. Thus, the leases’ lack of reference to layflat hoses could not have been the
result of an intentional exclusion. Finally, Lime Rock’s use of temporary layflay hoses to
transport water is the same or less of a burden on the surface property than its use of
pipelines to transport oil, gas, or other products. Nothing in the leases’ broad language
indicates an intent to exclude the lessee’s use of layflat hoses.
[¶15] We conclude the district court did not err when it held the leases are unambiguous
and that the leases provide Lime Rock the authority to use layflat hoses on the property.
Because of this conclusion, we need not address whether the surface use agreement also
granted Lime Rock the right to use layflat lines on the property.
B
[¶16] Citing N.D.C.C. § 47-19-41, ND Energy argues the district court erred when it
concluded the surface use agreement was not void because it was never recorded. See
section 47-19-41 (“An unrecorded conveyance of real estate is void as against any
subsequent purchaser in good faith, and for a valuable consideration, of the same real estate
or any part of the same real estate[.]”) ND Energy argues it was a good-faith purchaser of
the 2023 temporary layflat easement agreement because it was not on notice of the surface
use agreement. Lime Rock argues the memorandum of the surface use agreement, which
was recorded, put ND Energy on notice of the surface use agreement. The district court
concluded, “The recording of the memorandum of the surface agreement and the lease
agreements should have put ND Energy on notice regarding Lime Rock’s potential
property rights.”
[¶17] Section 47-19-19, N.D.C.C., provides, “The record of any instrument shall be notice
of the contents of the instrument, as it appears of record, as to all persons.” Section 47-19-
46, N.D.C.C., provides, “An unrecorded instrument is valid as between the parties thereto
and those who have notice thereof.” “This Court has ‘consistently held that a purchaser
who fails to make the requisite inquiry cannot claim the protection of a good-faith
purchaser status’ under N.D.C.C. § 47-19-41.” [CITATION] (quoting [CITATION]). “Rather, a person who fails to make the proper inquiry will be charged with
constructive notice of all facts that such inquiry would have revealed.” Id. (quoting
[CITATION]).
[¶18] The recorded memorandum of surface use agreement provided ND Energy
constructive notice of the surface use agreement. By inquiring into the recorded
memorandum, ND Energy would have discovered a surface use agreement was in place
for the land before it entered the layflat easement agreement. Therefore, ND Energy was
not a good-faith purchaser of the surface use rights. See [CITATION].
[¶19] We conclude the district court did not err when it concluded ND Energy had notice
of the surface use agreement and was not a good-faith purchaser.
C
[¶20] ND Energy argues the district court erred in dismissing its claims against Lime Rock
for tortious interference with contract and permanent injunction. ND Energy argues it has
a layflat agreement with Stroh, and Lime Rock’s installation of its layflat hoses on the
property interfered in ND Energy’s exclusive right to install layflat hoses on the property.
[¶21] “To establish a prima facie case for intentional interference with contract, a plaintiff
must prove (1) a contract existed, (2) the contract was breached, (3) the defendant instigated
the breach, and (4) the defendant instigated the breach without justification.” [CITATION] (quoting [CITATION]).
[¶22] The district court denied ND Energy’s claim for tortious interference with a
contract, concluding ND Energy could not establish the last element of the tortious
interference of contract claim. After concluding “Lime Rock had the right to use layflat
hose to transport fresh water across the property, in accordance with the accommodation
doctrine, by way of the lease agreements and surface use agreement[,]” the court wrote, “It
may be questionable whether the agreement between Stroh and ND Energy is even valid,
but certainly Lime Rock did not instigate a breach without justification.” Explaining its
conclusion, the court wrote, “Lime Rock had justification because it was previously
granted the right to use layflat hose on the property.”
[¶23] Regarding “ND Energy’s request for a permanent injunction prohibiting Lime Rock
from interfering with ND Energy's rights to the property[,]” the district court wrote: “A
permanent injunction prohibiting Lime Rock from interfering with ND Energy’s alleged
exclusive right to use layflat hose on the property is not appropriate, since this Court
determines Lime Rock already had the right to do so prior to ND Energy entering into its
agreement with Stroh.”
[¶24] As concluded above, Lime Rock had the right to use the layflat hoses on the property
through the leases. Based on that determination, we conclude the district court did not err
in holding ND Energy’s claims for tortious interference with contract and permanent
injunction fail.
[SEGMENT 4]
III
[¶25] We have considered the parties’ other arguments and conclude they are either
without merit or unnecessary for our decision. We affirm.
[¶26] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 102
In the Matter of the Estate of Merle M. Almer a/k/a Merle Marvin Almer, Deceased
Linda R. Moe, Personal Representative, Petitioner and Appellee
v.
Merle C. Almer, Respondent and Appellant
and
Alexander Almer, Cindy Almer,
Marvin D. Almer, Angel Pederson,
Personal Representative of Steven W. Almer,
Wesley Dean Almer, Ramona F. Barmoen,
Martin Candia, First Lutheran Church of Tioga,
Angela Holte, Jennifer Knudson,
Jonathan McGregor, Jeffery Allen Moe, Sr.,
Jeffrey Allen Moe, Jr., Joe Ramos,
Curtis Vande Sandt, Landon Stern,
Diana Rae Thompson and Gary Zenker, Respondents
No. 20230365
Appeal from the District Court of Williams County, Northwest Judicial District, the
Honorable Kirsten M. Sjue, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Aaron J. Weber (argued), Watford City, ND, and Jenna McPherson (appeared), Casselton,
ND, for petitioner and appellee.
Bruce A. Schoenwald, Moorhead, MN, for respondent and appellant. Estate of Almer
No. 20230365
Crothers, Justice.
[¶1] Casey Almer appeals from a judgment entered in a probate case. He argues the
district court misinterpreted a will and erred when it found the personal representative did
not breach her fiduciary duties. Almer also argues the court erred when it approved
attorney’s fees. We affirm the judgment.
I
[¶2] Merle Almer died in 2016 at the age of 89. Among other endeavors during his life,
he owned and operated a construction business and a farm totaling roughly 2,800 acres. He
owned all of his assets individually and operated a sole proprietorship throughout his life.
His wife predeceased him. Linda Moe is one of his children. Casey Almer is one of his
grandchildren. Moe is Casey Almer’s aunt.
[¶3] Merle Almer’s will named Moe his personal representative. The will contains
bequests to various individuals. Some are cash, but the will nonetheless refers to them as
“specific devises.” Other bequests are particular property but are not referred to as specific
devises. The bulk of Merle Almer’s wealth is distributed in three categories: the
construction business, the farm and farming assets, and oil and gas interests. The
construction business is devised 52% to Moe with the rest to others who were involved in
the business. The will devises a life estate in the farm and farming assets to Casey Almer.
The will sets out a testamentary trust for the oil and gas interests. Moe is named the trustee.
She, Casey Almer, and others are beneficiaries.
[¶4] The will directs the personal representative to use “harvested and unharvested grain”
to pay costs of administration and taxes for the estate. The will contains contingent
instructions in the event the grain is insufficient to cover the estate’s liabilities. At the time
of Merle Almer’s death in February 2016, he had no crop in the ground. The grain
discovered in his grain bins was less than expected, and the proceeds from selling it were
anticipated to be short of the predicted estate tax liability. These circumstances resulted in
a dispute between the personal representative and Casey Almer that ultimately lead to a
separate lawsuit. The personal representative sued Almer for conversion of grain and other
farm assets, and Almer brought conversion and breach of fiduciary duty counterclaims.
Almer’s counterclaims were dismissed, and a jury found he did not convert property.
[¶5] During the course of administration, the personal representative paid the estate tax,
which was roughly $2 million more than the proceeds of grain harvested before the
decedent’s death. After the personal representative paid the estate tax and distributed the
farm assets, Almer filed a petition for surcharge alleging the personal representative
breached her fiduciary duties. The personal representative filed a response and a cross
motion requesting an order approving an inventory and appraisement, final report and
accounting, and approval of final distribution. The district court heard testimony and took
evidence over five days.
[¶6] The district court issued a lengthy order with findings of fact and conclusions of
law. The court held abatement provisions in the will were ambiguous due to the will’s non-
standard use of the term “specific devise.” The court made findings concerning the
testator’s intent based on testimony from the attorney who prepared the will. The court
found the testator intended for an abatement procedure that prioritized construction
business assets over most other assets. The court also found the personal representative did
not breach her fiduciary duties while administering the estate. The court denied Almer’s
application for surcharge, and granted the personal representative’s motion to approve final
distribution. The court denied about $35,000 in attorney’s fees and approved approximately
$760,000 in attorney’s fees. The court entered judgment staying its orders pending appeal.
[¶7] Almer appealed, and we temporarily remanded the case for the limited purpose of
considering costs and disbursements. The district court entered an order denying costs and
disbursements and the parties filed amended briefs. On appeal, Almer challenges the
court’s interpretation of the will, the court’s findings concerning the personal
representative’s conduct during administration, and the court’s approval of attorney’s fees.
II
[¶8] Almer argues the district court misinterpreted abatement provisions in the will. He
asserts the court erroneously read the term “specific devise” to create an abatement
procedure that disfavored his bequests. He claims the will’s abatement procedure is not
ambiguous like the court determined, and even if it was, the court’s consideration of
extrinsic evidence was inappropriate because statutory defaults should apply in the case of
ambiguity.
A
[¶9] When interpreting a will the primary objective is to determine the testator’s intent.
[CITATION]. Interpretation of an unambiguous
will presents a question of law that is fully reviewable on appeal. [CITATION]. Whether ambiguity exists is a question of law. [CITATION]. A will is ambiguous if its language is
susceptible to more than one reasonable interpretation. [CITATION]. Extrinsic evidence may be considered to resolve an ambiguity. [CITATION]. The district court’s resolution of an ambiguity
is a question of fact reviewed under the clearly erroneous standard. Id. at ¶ 7. “A finding
of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no
evidence to support it, or when, although there is some evidence to support it, the reviewing
court, on the entire evidence, is left with a definite and firm conviction that a mistake has
been made.” [CITATION] (internal quotation marks omitted) (quoting [CITATION]).
B
[¶10] Almer argues the district court erred when it found the will’s abatement provisions
are ambiguous. Abatement, in the context of a will, means the “reduction of a legacy,
general or specific, as a result of the estate’s being insufficient to pay all debts and
legacies.” Abatement, Black’s Law Dictionary (11th ed. 2019). The Uniform Probate Code,
as adopted in North Dakota, provides default abatement provisions. See N.D.C.C. § 30.1-
20-02. Under these rules, property not disposed of by a will is the first to abate, followed
by residuary devises, then general devises, and then specific devises. N.D.C.C. § 30.1-20-
02(1). A general devise is “a specific amount of money or quantity of property, that is
payable from the estate’s general assets.” Devise, Black’s Law Dictionary (11th ed. 2019).
A specific devise is a “devise that passes a particular piece of property.” Id. The statutory
abatement provisions do not apply if a will provides its own abatement procedure.
N.D.C.C. § 30.1-20-02(2). If a will sets out its own procedure, “the shares of the
distributees abate as may be found necessary to give effect to the intention of the testator.”
Id.
[¶11] Merle Almer provided an abatement procedure that differs from the statutory
default. His will requires taxes, debts, and expenses to be paid “out of the residue of my
estate, without apportionment.” In the next sentence, the will states: “Upon my death, all
of the harvested and unharvested grain which I may own at the time of my death . . . shall
be sold in the ordinary course of business, and the proceeds therefrom shall be used to pay
such taxes and expenses of administration . . .” The will then provides contingent
instructions if “the proceeds from the grain are insufficient.” In such case, “my liquid assets
shall be used to pay them.” The will references certain bank accounts as “liquid assets” and
gives the personal representative “absolute discretion” to use funds from those accounts
“and/or from any other liquid assets in my Estate.” The next instruction is at the center of
the dispute and provides: “If the liquid assets are insufficient to pay the taxes, debts,
expenses of administration and specific devises, then my Personal Representative shall
have the absolute discretion to sell any assets of my estate as may be necessary to pay
them.” (Emphasis added.)
[SEGMENT 5]
[¶12] The parties advance differing abatement procedures based on their interpretation of
the testator’s use of the term “specific devises” in the preceding sentence. The personal
representative asserts the testator intended the term “specific devise” to have a special
meaning connoting bequests that are to be prioritized in the administration. The personal
representative argues the testator “deviated from the traditional definition of the phrase,”
noting the will describes some general bequests of cash as specific devises. The personal
representative argues bequests labeled as “a specific devise” are to abate last. Almer asserts
the personal representative’s interpretation is unworkable. He argues it contradicts
language in the abatement clause that refers to certain bank accounts as “liquid assets.” He
notes one account related to the construction business is bequeathed as a “specific devise”
in the will. He argues the testator, by labeling the account both a “specific devise” and
referencing it as a liquid asset available to pay expenses, could not have intended to provide
special abatement protection for the account. He argues the testator’s use of the term
“specific devise” did not create a hierarchy favoring the construction assets like the
personal representative suggests.
[¶13] Both parties have advanced reasonable interpretations of the abatement provisions.
The personal representative’s focus on the term “specific devise” is reasonable because the
testator’s repeated use of the term suggests it was intended to have significance. The will
clearly uses the term “specific devise” in a manner contrary to its ordinary definition by
labeling a number of cash bequests as specific devises. The will also instructs the personal
representative to use “liquid assets . . . to pay . . . specific devises.” Inclusion of the term
“specific devise” to describe some bequests but not others, and use of the term in the will’s
abatement provisions, suggests the testator meant it to be operative. However, various
bequests labeled “specific devise” are “liquid assets” by their nature, and one is specifically
referred to as such. It is unworkable to simultaneously protect “specific devises” from
abatement and also make them available in the case abatement occurs. Almer’s
interpretation, which does not give the term operative effect, is also reasonable because it
avoids problems created by the will labeling various liquid assets as specific devises. We
conclude the district court did not err when it held the will was ambiguous.
C
[¶14] Almer argues that even if there is ambiguity, extrinsic evidence is inappropriate
because the Uniform Probate Code provides a statutory tax apportionment procedure.
Almer asserts a will either unambiguously provides a method of tax apportionment or it
does not. He argues any ambiguity “triggers the apportionment statute requiring all
devisees to share in the payment of estate taxes.” (Emphasis in original.) We disagree.
Under the statutory procedure, taxes are to be apportioned equally among interested
persons “[u]nless the will otherwise provides.” N.D.C.C. § 30.1-20-16(2). Thus, when
determining if the default provision applies, the question is whether the testator expressed
an intent that differs from the statute. Merle Almer’s will instructs the personal
representative to pay estate taxes “without apportionment,” and it provides a specific
payment procedure that differs from the statute. No language in section 30.1-20-16
suggests the default applies when an alternative method is expressed but is ambiguous.
Therefore extrinsic evidence is appropriate to resolve ambiguities in the will concerning
payment of taxes. See [CITATION] (consideration
of extrinsic evidence was appropriate when testator “made clear her intentions about
treating all four children equally,” but ambiguous language created “confusion about how
[she] intended to accomplish that objective”). The district court did not err when it
considered extrinsic evidence to resolve the ambiguity.
D
[¶15] Almer argues the district court’s interpretation of the will conflicts with the evidence
presented at trial. Based on extrinsic evidence, the district court found the “will expresses
an order of abatement, and that those devises denominated in [the] will as ‘specific devises’
are the preferred devises with the highest priority that would be the very last to abate.” The
court’s finding is based on testimony from Kathleen Imes, the attorney who prepared the
will. The court found “Imes worked with Merle Almer on his estate planning for many
years, had discussions with him about his intent for the disposition of his estate assets, and
drafted this particular will based on those discussions.” The court considered credible Imes’
testimony “that the term ‘specific devise’ in the will was used intentionally by Merle Almer
to signify the preferred devises with the very highest priority, and was one of the most
important parts of his will.” The court found Merle Almer considered his construction
business, which he labeled a “specific devise,” to be “his legacy” and that he “wanted it to
survive after his death.” The court found Merle Almer intended that bequests labeled
“specific devise” could be “funded” by the sale of other assets, including “the Almer farm
assets, and the Almer Minerals Trust.” The court’s findings regarding the testator’s intent
are supported by the evidence and not clearly erroneous. The district court did not err when
it interpreted the will.
III
[¶16] Almer argues the personal representative breached her fiduciary duties by failing to
distribute estate income and property, falsely accusing him of stealing grain from the estate,
engaging in unfounded litigation against him, and failing to properly maintain estate
equipment.
A
[¶17] “Whether a personal representative breached a fiduciary duty is a question of fact,
which will not be reversed on appeal unless it is clearly erroneous.” [CITATION]
“To establish a breach of fiduciary duty, the plaintiff must prove: 1) a
fiduciary relationship between the plaintiff and defendant; 2) a duty by the
defendant to the plaintiff arising from that relationship; 3) the defendant’s
breach of that duty; and 4) damage to the plaintiff proximately caused by that
breach of duty.”
[CITATION] Section 30.1-18-03(1), N.D.C.C.,
provides for fiduciary duties of personal representatives:
“A personal representative is a fiduciary who shall observe the standards of
care applicable to trustees. A personal representative is under a duty to settle
and distribute the estate of the decedent in accordance with the terms of any
probated and effective will and this title, and as expeditiously and efficiently
as is consistent with the best interests of the estate. The personal
representative shall use the authority conferred upon the personal
representative by this title, the terms of the will, if any, and any order in
proceedings to which the personal representative is party for the best interests
of successors to the estate.”
See also N.D.C.C. ch. 59-16 (providing trustee duties). A personal representative may be
“liable to interested persons for damage or loss resulting from breach of the personal
representative’s fiduciary duty to the same extent as a trustee of an express trust.” N.D.C.C.
§ 30.1-18-12.
B
[¶18] Almer argues the personal representative breached fiduciary duties by retaining
estate assets and failing to distribute income derived from them. His arguments implicate
various statutory provisions concerning a personal representative’s authority over estate
assets during the administration period.
[¶19] A decedent’s property devolves to devisees upon death “subject to” estate
administration. N.D.C.C. § 30.1-12-01. During administration, the personal representative
has the same power the decedent had over his or her property, “in trust however, for the
benefit of the creditors and others interested in the estate.” N.D.C.C. § 30.1-18-11. A
personal representative has a duty to settle and distribute estate assets “as expeditiously
and efficiently as is consistent with the best interests of the estate.” N.D.C.C. § 30.1-18-
03. A personal representative has authority to retain and lease property in the estate “for
administration purposes for the benefit of interested persons.” [CITATION]
[¶20] Almer argues the personal representative “wrongfully took over and retained the
Almer farming and oil and gas operations in violation of N.D.C.C. § 30.1-18-15(24),”
which says a personal representative may continue a decedent’s unincorporated business
or venture in “the same business form” for a period less than four months from the date she
was appointed. Almer asserts the personal representative violated this law because she
“took over and carried on those businesses more than four months after her appointment.”
[¶21] Almer’s reliance on this law is not persuasive. Almer has not identified evidence
showing the personal representative took actions that would constitute a farming or oil and
gas business or venture. The personal representative hired a custom combiner to take
possession of grain Casey Almer planted on the farmland in 2016, entered into a lease with
another farmer for 2017, sold grain to raise funds for estate administration, and leased or
[SEGMENT 6]
continued to lease minerals the decedent owned. These transactions are expressly authorized by N.D.C.C. § 30.1-18-15, which states the personal representative may “[r]etain assets owned by the decedent pending distribution or liquidation,” may “dispose of an asset . . . for cash,” may enter “for any purpose into a lease as lessor or lessee” and may enter “into a lease or arrangement for exploration and removal of minerals or other natural resources.”
[¶22] Almer also argues the personal representative violated the Uniform Principal and Income Act (1997), N.D.C.C. ch. 59-04.2, by not distributing minerals to a testamentary mineral trust or making distributions of royalty income. He notes section 59-04.2-06 states an “income beneficiary is entitled to net income from the date on which the income interest begins,” which is “the date of a testator’s death . . . even if there is an intervening period of administration of the testator’s estate.” However, N.D.C.C. ch. 59-04 plainly does not apply when a will or trust provides conflicting provisions, in which case the trust or estate “shall” be administered “in accordance with the terms of the trust or the will.” N.D.C.C. § 59-04.2-02(1)(a). The will in this case differs from the statute by allowing the personal representative, in her “absolute discretion” to use “any” of the “liquid assets in my Estate” to pay “my debts and taxes.”
[¶23] The district court held the personal representative did not breach her fiduciary duties by retaining and using estate assets and income during the administration period. The court explained the costs of administering this estate, including taxes and litigation expenses, have been “substantial and ongoing.” The court found “it would have been imprudent and unreasonable for the personal representative to immediately distribute all of the estate assets or fail to maintain a financial reserve in the estate, until such time as the estate was actually drawing to a close.” The court found the personal representative acted reasonably when she retained and utilized estate assets. The court’s findings are supported by the evidence and not clearly erroneous.
C
[¶24] Almer claims the personal representative breached fiduciary duties by engaging in various other conduct.
[¶25] Almer argues the personal representative had no basis to believe he stole grain, and she wasted estate assets by pursuing litigation against him that ultimately failed. The district court found several individuals made statements to the personal representative that
gave her reason to believe the decedent’s grain bins were full at the time of his death. The
court found Almer had access to the grain bins before and after the decedent’s death and
was generally uncooperative with the personal representative. The court found that a
forensic accountant provided the personal representative with a report indicating grain was
missing and that Almer sold more grain than he produced on his own property. The court
found the personal representative’s accusations and decision to bring the lawsuit against
Almer were reasonable given the information she had at the time. The court also found the
protracted and expensive nature of the litigation with Almer was due in part to
counterclaims pursued by Almer. We conclude the court’s findings are not clearly
erroneous.
[¶26] Almer argues the personal representative failed to distribute equipment that was
devised to him. He asserts some farm equipment was improperly characterized as
construction equipment. The district court found “more than two hundred pieces of
equipment” existed during the decedent’s life, the equipment “went back and forth”
between farming and construction operations, and the decedent never created a list
characterizing the equipment. The court found the personal representative’s distribution of
the equipment, which was based on advice by “those who were familiar with the equipment
and its day-to-day uses,” was reasonable and did not constitute a breach of fiduciary duty.
These findings are not clearly erroneous.
[¶27] Almer argues the personal representative failed to properly maintain farm
equipment and distributed some equipment in a damaged state. The district court found
Almer failed to prove this claim. The court noted Almer only provided his opinion as to
damages, which the court did not find credible. The court explained Almer “claims he paid
to repair a few of these things, but presented no receipts showing the cost. He alleges
$100,000.00 in repair costs for a sprayer and another $100,000.00 for a tractor, but then
admitted at trial that he does not know what is wrong with these items, has never had them
looked at by a dealer or repair shop, and does not know what it would actually cost to repair
them.” These findings also are not clearly erroneous.
IV
[¶28] Almer argues the district court erred when it ordered attorney’s fees and other
litigation expenses to be paid by the estate. He asserts it was impermissible for the court to
approve fees incurred as a result of the personal representative’s unsuccessful conversion
lawsuit against him. We disagree. Under N.D.C.C. § 30.1-18-20, a personal representative
is entitled to receive reasonable attorney’s fees from an estate when he or she “defends or
prosecutes any proceeding in good faith, whether successful or not.” See also N.D.C.C. §
30.1-18-15(21) (authorizing personal representatives to employ attorneys); N.D.C.C. §
30.1-18-15(22) (authorizing personal representatives to prosecute and defend claims for
the protection of the estate). As we explained in Part III-C of this opinion, the district court
did not err when it found the personal representative acted in good faith when she sued
Almer on behalf of the estate. Therefore the court’s approval of those litigation expenses
was permissible. Almer also argues he is entitled to attorney’s fees for his litigation
expenses. His assertions necessarily fail because they are premised on success in this
appeal, which he has not achieved.
V
[¶29] We have considered Almer’s remaining arguments and conclude they are either
without merit or unnecessary to our decision. The judgment is affirmed.
[¶30] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
```plaintext
FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
SEPTEMBER 28, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ND 171
Darren [CITATION] and Tamara [CITATION], Plaintiffs, Appellants, and
Cross-Appellees
v.
Jason Sellers, Krysta Sellers,
Jordan Anderson, Personally, and
Big River Builders, Inc., Defendants, Appellees, and
Cross-Appellants
and
The Misty Waters Owners’
Association, Defendant and Appellee
and
Jason Sellers, Krysta Sellers,
Jordan Anderson, Personally, and
Big River Builders, Inc., Third-Party Plaintiffs, Appellees,
and Cross-Appellants
v.
Jeff Carlson, Third-Party Defendant and Appellee
No. 20220322
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Pamela A. Nesvig, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Tufte, Justice.
Nicholas C. Grant (argued) and Shea A. Miller (on brief), Dickinson, N.D., and
Bradley J. Beehler (on brief) and Victoria A. Vold (appeared), Grand Forks,
N.D., for plaintiffs, appellants, and cross-appellees. It appears that there are no court ruling citations present in the provided text. The text is composed of lists of individuals and their roles or locations in the legal proceeding. Therefore, no modifications are necessary.
The text after processing remains the same:
Randall J. Bakke (argued) and Shawn A. Grinolds (appeared), Bismarck, N.D.,
for defendants, appellees, and cross-appellants.
William P. Harrie (argued), Fargo, N.D., for defendant and appellee.
Katie L. Winbauer (argued) and Chris A. Edison (on brief), Bismarck, N.D., for
third-party defendant and appellee.
Zachary E. Pelham and Matthew R. Keller, Bismarck, N.D., for amicus curiae
Misty Waters L.L.C. [CITATION]
No. 20220322
Tufte, Justice.
[¶1] Darren Berger and Tamara Berger (“Bergers”) appeal from a judgment
dismissing their claims of violation of a planned unit development (PUD),
breach of contract, breach of fiduciary duty, private nuisance, and negligence
against their neighbors Jason Sellers and Krysta Sellers (“Sellers”), Sellers’
homebuilder Jordan Anderson and Big River Builders, Inc. (together,
“Builder”), and the Misty Waters Owners’ Association (“Association”). Sellers
and Builder cross-appeal from the judgment dismissing their claims of
defamation, interference with contract and business, and negligence against
Bergers and neighbor Jeff Carlson. The parties argue the district court erred
by dismissing their respective claims.
[SEGMENT 7]
[¶2] The central issue in this case is whether the PUD minimum setback from
the bay can be changed by obtaining a new Letter of Map Revision (LOMR)
from the Federal Emergency Management Agency (FEMA) without an
amendment to the PUD. We conclude the PUD unambiguously sets the
minimum setback from the bay as the contour line in the 2005 LOMR-F and
therefore Sellers’ home violates the PUD. The judgment of dismissal is
affirmed in part, reversed in part, and remanded for further proceedings.
I
[¶3] Sellers purchased a lot next to Bergers’ lot in the Misty Waters
development north of Bismarck. Misty Waters is a residential and commercial
development located on the shores of the Missouri River and on an inland,
man-made, off-river bay. Sellers’ and Bergers’ backyards are bordered by the
Misty Waters Bay. The development is controlled by the Misty Waters Planned
Unit Development, which was adopted in June 2005 and amended in 2006 and
2017. The August 2006 “Major PUD Amendment” states “the minimum
setback from the bay shall be elevation 1640.3 (NAVD88) as delineated by the
contour line described in the approved LOMR.” (Emphasis added.) The 2017
amendment to the PUD did not change this provision. The approved LOMR in
August 2006 was the 2005 LOMR-F. Subsequent LOMR-F’s were issued by
FEMA in November 2006 and May 2020. Builder applied to FEMA for the 2020
LOMR-F, which is specific to Sellers’ lot. It is undisputed that if the 2005
LOMR-F defines the setback from the bay, Sellers’ home violates the PUD, and
if the 2020 LOMR-F defines the setback, Sellers’ home complies with the PUD.
In addition to the PUD, the Misty Waters development is governed by
restrictive covenants and by-laws. The covenants incorporate the 2006 Major
PUD Amendment.
[¶4] Sellers hired Builder to construct their home. Both the City of Bismarck
(“City”) and the Association’s Architectural Control Committee (ACC)
approved construction of Sellers’ home. Construction began around September
2019. In March 2020, Darren Berger and neighbor Pat Spilman contacted
the Association’s president and the City’s building official regarding Sellers’
home construction and compliance with the setback requirements. Spilman
was specifically concerned the construction of Sellers’ home either violated or
would violate the setback requirements and requested assurances from the
Association that the home would comply with all setbacks. The Association’s
president assured him that the home complied with the setbacks. The building
official recommended to Builder to apply for a new LOMR-F because he
believed the setback from the bay to be an elevation which can change with the
addition of fill dirt and an approved LOMR by FEMA. Builder applied for a
new LOMR-F. On May 28, 2020, FEMA issued a new LOMR-F for Sellers’ lot.
The City issued a certificate of occupancy for Sellers’ home.
[¶5] In the spring of 2020, Darren Berger and neighbor Jeff Carlson had a
conversation about Sellers’ lot. Carlson testified that Darren Berger told him
that he was contemplating commencing a lawsuit against Sellers and Builder
because he believed Sellers’ home was built beyond the bay setback. Around
May 24 or 25, 2020, Carlson called his friend, David Rogstad, a manager at
Starion Bank, which was financing the construction of Sellers’ home. Carlson
testified he told Rogstad that he believed Sellers’ home was “50, 60 feet past
the setback” and that a possible lawsuit was “coming his way.” Rogstad
testified that he inspected Sellers’ lot the next morning after his phone call
with Carlson. Rogstad testified that while he was walking around Sellers’ lot,
Darren Berger approached him and told him that he believed Sellers’ home
was built beyond the “flood line” and pointed out the stake he believed marked
that line. Rogstad informed Starion’s Chief Credit Officer LaDawn Schmitt of
his conversations with Carlson and Berger. Starion then paused draw
payments on Sellers’ construction loan and requested information from Sellers
concerning the fill dirt and compliance with the setback. The draws were
paused for approximately one to two weeks. Starion also removed Big River
Builders from its “approved builders list.”
[¶6] In summer 2020, Bergers commenced this lawsuit against Sellers,
Builder, and the Association. After amending the complaint, Bergers alleged
violation of the PUD, breach of contract for violating the restrictive covenants,
breach of fiduciary duty, negligence, and private nuisance. They also sought a
declaratory judgment stating the minimum bay setback is the contour line
established by the surveyed metes-and-bounds legal description in the 2005
LOMR-F. Sellers and Builder counterclaimed against Bergers, alleging
defamation, interference with contract and business, and negligence. Sellers
and Builder also brought a third-party complaint against Carlson for
defamation and interference with contract and business. After cross-motions
for summary judgment, the district court dismissed all claims and entered
judgment. [CITATION] appeal, and Sellers and Builder cross-appeal.
II
[¶7] Our standard for reviewing a grant of summary judgment is well-
established:
Summary judgment is a procedural device for the prompt
resolution of a controversy on the merits without a trial if there
are no genuine issues of material fact or inferences that can
reasonably be drawn from undisputed facts, or if the only issues to
be resolved are questions of law. A party moving for summary
judgment has the burden of showing there are no genuine issues
of material fact and the moving party is entitled to judgment as a
matter of law. In determining whether summary judgment was
appropriately granted, we must view the evidence in the light most
favorable to the party opposing the motion, and that party will be
given the benefit of all favorable inferences which can reasonably
be drawn from the record. On appeal, this Court decides whether
the information available to the district court precluded the
existence of a genuine issue of material fact and entitled the
moving party to judgment as a matter of law. Whether the district
court properly granted summary judgment is a question of law
which we review de novo on the entire record.
[CITATION]
III
[¶8] Bergers argue the district court erred in concluding Sellers’ home does
not violate the PUD’s bay setback requirement. A PUD is a form of zoning
ordinance where “the type, density and placement of land uses and buildings,
instead of being detailed and confined to specified districts by local legislation
in advance, is determined by contract, or deal, as to each development between
the developer and the municipal administrative authority, under broad
guidelines laid down by state enabling legislation and an implementing local
ordinance.” [CITATION] We interpret a zoning ordinance under
rules of statutory construction:
The interpretation of an ordinance, like the interpretation of a
statute, is a question of law subject to full review on appeal. In
construing an ordinance, we ascertain the enacting body’s intent
by giving the language its plain, ordinary, and commonly
understood meaning. When the language of an ordinance is free
and clear of all ambiguity, the letter of the ordinance cannot be
disregarded under the pretext of pursuing its spirit. We construe
ordinances as a whole and harmonize them to give meaning to
related provisions. We will ordinarily defer to a reasonable
interpretation of a statute by the agency enforcing it, but an
interpretation that contradicts clear and unambiguous language is
not reasonable.
[CITATION]
A
[¶9] The PUD states “the minimum setback from the bay shall be elevation
1640.3 (NAVD88) as delineated by the contour line described in the approved
LOMR.” (Emphasis added.) The district court concluded that “the approved
LOMR” is the most recently approved LOMR by FEMA pertaining to the lots
described in the LOMR. Thus, the court determined the 2020 LOMR-F
pertaining specifically to Sellers’ lot was “the approved LOMR” for that lot. In
reaching its conclusion, the court noted the 2020 LOMR-F states,
“SUPERSEDES OUR PREVIOUS DETERMINATION (This Additional
Consideration applies to all properties in the LOMR-F DETERMINATION
DOCUMENT (REMOVAL))[.] This Determination Document supersedes our
previous determination dated 8/5/2014, for the subject property.” Further, the
court reasoned the City has discretion when interpreting its own ordinances.
[¶10] Bergers argue “the approved LOMR” refers to the only LOMR in
existence at the time that language was added to the PUD, the 2005 LOMR-F.
We agree. By its plain language, the PUD refers to a single LOMR (“the”
LOMR) which has already been approved by FEMA. The district court’s
interpretation reads further language into the PUD that does not exist, such
as “any” approved LOMR or “the most recently approved LOMR specific to the
lot.” Under the court’s interpretation, at least three approved LOMR’s (2005,
2006, 2020) would appear to dictate the bay setback, as opposed to “the contour
line described in the approved LOMR.”
[SEGMENT 8]
[¶11] Under our rules of statutory construction, a subsequent modification to
an incorporated reference in a statute does not amend the statute unless
clearly expressed in the statute:
One rule applied in the construction of statutes is that where
one statute adopts the particular provisions of another statute by
a specific and descriptive reference to the statute or provision
adopted the effect is the same as though the statute or provision
adopted had been incorporated bodily into the adopting statute.
Such adoption takes the statute as it exists at the time of adoption
and does not include subsequent additions or modifications of the
statute so taken unless it does so by express intent or necessary
implication.
[CITATION]. In [CITATION], the Court
concluded that although a state constitutional provision prohibiting liquor sale
had been repealed, prior to its repeal it had been incorporated by reference in
a provision authorizing cities to engage in “business not prohibited by Article
20” (the since-repealed constitutional provision prohibiting the sale of liquor).
[CITATION]. Despite the repeal of the prohibition article, we held its incorporation by
reference in § 185 preserved the exclusion of liquor sales from the businesses
in which cities may engage. [CITATION]. In [CITATION], the Court construed a state
statute adopting by reference the definition of LSD as defined in federal law
“as amended” and regulations promulgated thereunder to mean the federal law
and regulations in existence at the time of enactment of the adopting statute.
[CITATION]. Interpreting the statute to avoid
constitutional doubt about unlawful delegation of legislative power, the Court
concluded, “We do not construe, in this case, the adopting statutes as
attempting to adopt future laws, rules or regulations of the federal
government.” [CITATION]. As [CITATION] demonstrate, where an incorporated
reference is subsequently modified or repealed, that change does not alter the
meaning of the law incorporating that reference.
[¶12] Here, the PUD adopted by reference “the contour line described in the
approved LOMR” to define the minimum setback from the bay. Thus, the PUD
adopted the bay setback requirement existing at the time of adoption and as
described in the 2005 LOMR-F. Subsequent LOMRs issued by FEMA do not
modify the PUD’s bay setback requirement.
[¶13] The district court erroneously relied upon the 2020 LOMR-F’s
superseding language—“[t]his Determination Document supersedes our
previous determination”—in reaching its conclusion that the bay setback
pertaining to Sellers’ lot was changed when FEMA issued the 2020 LOMR-F.
The PUD does not state the setback requirements can be changed through the
issuance of a new LOMR by FEMA. To the contrary, within the same paragraph
as the setback requirements, the PUD states, “Any change to the density or
building setbacks that are inconsistent with these standards will require an
amendment to this PUD.” The final paragraph in the PUD provides, “This PUD
shall only be amended in accordance with Section 14-04-18(4) of the City Code
of Ordinances (Planned Unit Developments). Major changes require a public
hearing and a majority vote of the Bismarck Planning & Zoning Commission.”
The PUD has not been amended to change the bay setback. This additional
provision within the same paragraph emphasizing that “[a]ny change to the . .
. building setbacks” requires an amendment to the PUD further supports the
interpretation that the bay setback was a static line as delineated in the 2005
LOMR-F, which landowners and prospective landowners could rely upon.
[¶14] Under section 14-04-19(3) of the Bismarck Code of Ordinances, “Letter
of map revision (LOMR)” is defined as “an official amendment to the currently
effective flood insurance rate map (FIRM) which is issued by FEMA and
changes flood zones, delineations and elevations.” Thus, the 2020 LOMR-F
superseded FEMA’s previous amendment to the flood insurance rate map, but
did not supersede provisions of the PUD. The 2020 LOMR-F acknowledges this
purpose, stating the subject property is not located in the Special Flood Hazard
Area—“an area inundated by the flood having a 1-percent chance of being
equaled or exceeded in any given year”—and thus federal mandatory flood
insurance is not required. Accordingly, the PUD’s bay setback requirement and
FEMA’s flood insurance rate map determination are not one and the same.
[¶15] We conclude the PUD unambiguously states that the minimum setback
from the bay is delineated by the contour line established by the surveyed
metes-and-bounds legal description from the 2005 LOMR-F. Because the PUD
is unambiguous, we need not consider whether or to what extent the City’s
interpretation of its ordinance is reasonable and entitled to deference.
[CITATION] (“[A]n interpretation that contradicts clear and
unambiguous language is not reasonable.”); [CITATION] (explaining the County’s “interpretation is not
necessarily controlling,” and giving deference to its application of ambiguous
term in zoning ordinance as not arbitrary, capricious, or unreasonable).
Because Sellers’ home violates the PUD, we reverse on this issue as to Sellers
and remand with instructions to grant Bergers partial summary judgment on
this issue as requested in their motion for partial summary judgment. To the
extent Bergers claim Builder violated the PUD, we conclude Builder was acting
as an agent of Sellers in constructing Sellers’ home and Builder is not liable for
any setback violation caused by Sellers’ home. By its plain language, the PUD
governs the minimum setback from the bay of residential buildings. Although
Sellers’ home violates the PUD’s bay setback requirement, Builder has no
control, possession, or ownership of Sellers’ home. Bergers have not argued how
Builder’s construction of Sellers’ home, as opposed to the structure itself
extending beyond the bay setback, violates the PUD. Nor have Bergers argued
on appeal that Builder has exceeded its role as Sellers’ agent and therefore is
liable as principal. See N.D.C.C. § 3-04-02 (providing when an agent is liable
to third persons). We affirm the grant of summary judgment as to Builder.
B
[¶16] Sellers and Builder argue the PUD violation claims were properly
dismissed because Bergers failed to exhaust their administrative remedies.
The district court concluded Bergers had the right to sue without exhausting
their administrative remedies. Bergers contend this issue was waived because
Sellers and Builder did not appeal from the order rejecting this argument.
Because Sellers and Builder argued in the district court that Bergers failed to
exhaust their administrative remedies and are not seeking a more favorable
result on appeal than they received in the district court, the exhaustion of
remedies argument is properly before us and we turn to the merits of the
argument. [CITATION]
[¶17] Under section 14-05-03 of the Bismarck Code of Ordinances, “It is the
intent of this article that questions arising in connection with the enforcement
of the article shall be presented first to the Zoning Administrator.” As the
district court recognized, Bismarck Code of Ordinances § 14-05-04 provides a
private right of action for certain violations of zoning ordinances:
In case any building or structure is erected, constructed,
reconstructed, repaired, moved, converted or maintained, or any
building, structure, or land is used in violation of this article, the
building inspector or any other appropriate authority or any
adjacent, nearby or neighboring property owner who would be
affected by such violation, in addition to other remedies, may
institute injunction, mandamus, or other appropriate action in
proceeding to prevent the occupancy of such building, structure or
land.
The court concluded the administrative process described in § 14-05-03 does
not require first exhaustion, Bergers could pursue either process, and thus the
express private right of action in § 14-05-04 allowed Bergers to file suit without
exhausting administrative remedies.
[¶18] “Ordinarily, a party must exhaust available administrative remedies
before seeking declaratory or injunctive relief.” [CITATION]. One exception to the exhaustion of
remedies doctrine is “when a legal question simply involves statutory
interpretation and does not need the exercise of an agency’s expertise in
making factual decisions.” [CITATION]. In [CITATION], a hospital
sought judgment declaring the pharmacy it owned was exempt from the
statutory requirement that it be majority-owned by pharmacists. The State
Board of Pharmacy argued the hospital failed to exhaust administrative
remedies before suing for declaratory relief. Id. at ¶ 8. We concluded the
hospital was not required to exhaust administrative remedies prior to suit
because the case involved “only the interpretation of an unambiguous statute,
and does not involve any issues generally reserved to an administrative
decisionmaker.” Id. at ¶ 21.
[¶19] As stated above, the PUD violation claim involves the interpretation of
the PUD, which is governed by the rules of statutory construction. We have
concluded the PUD is unambiguous as to the bay setback requirement, and the
relevant facts are undisputed. Accordingly, we conclude the district court did
not err in determining Bergers did not have to exhaust administrative
remedies prior to bringing suit.
[SEGMENT 9]
IV
A
[¶20] Bergers argue the district court erred in dismissing their breach of
restrictive covenants claims against Sellers and Association.
[¶21] “[A] landowner may sell land subject to restrictive covenants, provided
the covenants are not contrary to public policy.” [CITATION]. Although restrictive covenants are not favored, they will
be given full effect when “clearly established.” Id. “The interpretation of a
restrictive covenant is generally governed by rules for interpretation of a
contract.” Id. “A breach of contract is the nonperformance of a contractual duty
when it is due.” [CITATION]. “The elements of a prima facie case for breach of contract are: (1) the
existence of a contract; (2) breach of the contract; and (3) damages which flow
from the breach.” Id.
[¶22] The restrictive covenants provide:
Building Set Back and Location. THE MISTY WATERS
PLANNED UNIT DEVELOPMENT, Ordinance #5435 (as
amended and adopted on August 23, 2006), which document
is attached hereto as Exhibit “A”, and made a part hereof
by reference, sets forth the corridors within which all residential
structures within the subdivision shall be built. . . . The precise
location of all structures to be constructed on a given Lot shall
be subject to the prior written consent and approval of the
Architectural Control Committee.
Bergers argue that under this covenant the Association has a contractual duty
to ensure homes are built in compliance with the PUD setback requirements
and Sellers have a contractual duty to build their home within the setback
requirements. Given the violation of the PUD’s bay setback, Bergers contend
the Association and Sellers breached their duties.
[¶23] The district court concluded this issue was moot because Sellers did not
violate the PUD setback, and thus determined as a matter of law that Sellers
did not breach the covenants. As to the Association, the court concluded that
under [CITATION] “a homeowner does not have a cause of action against an
association under a breach of contract/covenant/nuisance claim based upon
a failure to enforce restrictions where they are discretionary under the
association’s by-laws.” In [CITATION], we concluded that “it is not necessary to
address the breach of any contractual obligation the Association allegedly owed
to the Ceynars to enforce the covenants” because the district court did not err
in determining the covenants did not prohibit the construction of a pool house,
which was the alleged underlying violation. [CITATION], ¶¶ 11, 18. Thus,
because the construction of the pool house was not in fact a violation of the
covenants, we did not need to reach the additional question of whether the
Association breached a duty to enforce that covenant. Here, we have
determined there was a violation of the PUD, which is incorporated into the
covenants. Thus, this case differs from [CITATION] in that respect and we must
determine whether the Association breached a duty owed to Bergers as stated
in the covenants.
[¶24] Under the restrictive covenants, lot owners are expressly given the
authority to sue “to prevent the breach of, or to enforce the observance of the
covenants.” Similarly, the by-laws allow lot owners to sue other owners or the
Association “for failure to comply with the provisions of the Declaration, these
By-Laws, the Restrictive Covenants or with decisions of the Owners’
Association which are made pursuant to authority granted the Owners’
Association in such documents.” Under these provisions, Bergers can sue
Sellers and the Association for violating the covenants. The restrictive
covenants incorporate by reference the 2006 PUD and require homes to be built
according to the PUD requirements. Because Sellers’ home violates the 2006
PUD bay setback, we conclude Sellers violated the covenant incorporating that
requirement and breached their contractual duty owed to Bergers.
[¶25] As to the Association, Bergers rely on the same provisions of the
restrictive covenants incorporating by reference the 2006 PUD setback
requirements. Bergers contend that because homes cannot be located beyond
the minimum setback from the bay and Sellers’ home violates this setback
requirement, the Association breached its duty to “only approve structures that
comply with the PUD.” While the covenants and by-laws allow lot owners to
sue the Association for a violation of the covenants, the covenant alleged to be
breached must be “clearly established.” [CITATION]. Bergers
have not demonstrated that the Association has a contractual obligation to
them to “only approve structures that comply with the PUD” or that the
Association breached an express provision of the covenants. In fact, the
restrictive covenants state the Association’s ACC “shall have total discretion
in the approval or rejection of construction plans and the location of all
structures to be constructed on each Residential Lot within the Misty Waters.”
See also [CITATION] (deferring to homeowners’ association’s
finding that covenant prohibiting nuisances was not violated when covenant
gave its architectural committee “sole discretion” to determine whether a
nuisance existed for purposes of that covenant). Thus, we conclude the
Association did not breach a contractual duty in the restrictive covenants and
the district court did not err in dismissing the claim as to the Association.
[¶26] We reverse the district court’s grant of summary judgment to Sellers,
concluding as a matter of law Sellers breached the restrictive covenant
incorporating the PUD’s bay setback requirement. We remand to the court with
instructions to grant [CITATION] partial summary judgment against Sellers on the
breach of restrictive covenants claim as requested in their motion for partial
summary judgment. We affirm the grant of summary judgment on the
restrictive covenants claims as to the other defendants.
B
[¶27] Sellers argue the district court lacked subject matter jurisdiction over
Bergers’ claim they violated the covenants and therefore the claim was
properly dismissed by the court (albeit for another reason). Sellers contend
provisions of the covenants and by-laws preclude the court from determining
violations of the covenants. Specifically, Sellers cite the covenant granting the
ACC total discretion in approving or rejecting construction plans and structure
locations. Sellers also cite a by-law stating that the ACC “shall have the
exclusive power, discretion and jurisdiction to approve, modify, or amend plans
to cause proposed modifications or improvements to be in conformity and to be
compatible with the general building and architectural design.”
[¶28] The district court concluded it had subject matter jurisdiction based
upon the clear right of action for lot owners under the restrictive covenants
and by-laws. We agree. The covenants expressly give lot owners the right to
sue “to prevent the breach of, or to enforce the observance of the covenants.”
The by-laws provide lot owners an express right of action against other lot
owners for failure to comply with the provisions of the covenants and by-laws.
Thus, the covenants and by-laws have not stripped the court of subject matter
jurisdiction as Sellers argue, and we conclude the court did not err in exercising
its jurisdiction.
V
[¶29] Bergers contend the district court erred in granting summary judgment
on their breach of fiduciary duty claim against the Association. To establish a
breach of fiduciary duty, the plaintiff must prove: 1) a fiduciary relationship
between the plaintiff and defendant; 2) a duty by the defendant to the plaintiff
arising from that relationship; 3) the defendant’s breach of that duty; and 4)
damage to the plaintiff proximately caused by that breach of duty. In re Estate
of Sande, [CITATION]. The court concluded Bergers
failed to show the existence of a fiduciary relationship between Bergers and
the Association. The court noted the parties did not cite any case law that
would support a fiduciary relationship in this situation and North Dakota
statutory law does not recognize such a relationship.
[¶30] Bergers argue whether a fiduciary relationship exists is a question of fact
and under the facts of this case, the fiduciary relationship exists between them
and the Association. “Whether a fiduciary relationship exists is generally a
question of fact, dependent upon a showing of special circumstances.” Prod.
Credit Ass’n of Fargo v. Ista, [CITATION]. In viewing the
facts in a light most favorable to Bergers as the non-movant on this claim in
the summary judgment stage, a genuine dispute of material fact exists as to
whether a fiduciary relationship exists between Bergers and the Association.
While a relationship between the parties exists, whether it is akin to a
fiduciary relationship requires the fact finder to weigh the evidence. Thus, we
conclude the district court erred in concluding as a matter of law no fiduciary
relationship can exist between a homeowner and the homeowners’ association.
[¶31] The district court also concluded as a matter of law the Association did
not breach any such fiduciary duty. The Association urges the Court to apply
the “business judgment” rule, precluding judicial review of legitimate business
decisions of the Association, absent fraud or bad faith. In [CITATION],
this Court applied the business judgment rule
to a condominium board’s actions regarding repairs to the condominium
common areas. [CITATION]. Under the business judgment
rule, “absent claims of fraud, self-dealing, unconscionability or other
misconduct, the court . . . should limit its inquiry to whether the [board’s] action
was authorized and whether it was taken in good faith and in furtherance of
the legitimate interests of the condominium.” Id. Even if the business
judgment rule applied to the ACC’s approval of Sellers’ home, which we express
no opinion on, factual disputes remain. For example, the president of the
Association, who was a member of the ACC, testified she did not review the
PUD prior to approving construction of Sellers’ home. The vice-president
testified he did not review the PUD when he joined the Association’s board in
2018, which is also when he became a member of the ACC, and believed the
setback from the bay was the same line as the drainage easement. He further
testified that he and the president were the only two members of the ACC at
one time during the construction approval process of Sellers’ home. Thus, a
genuine dispute of material fact exists as to whether the Association breached
any duty it owed to [CITATION] when the ACC approved the construction of Sellers’
home. We reverse the grant of summary judgment on [CITATION]' claim of breach
of fiduciary duty against the Association.
[SEGMENT 10]
VI
[¶32] [CITATION] argue the district court erred in granting summary judgment
dismissing their private nuisance claims against Sellers and the Association.
“A nuisance consists in unlawfully doing an act or omitting to perform a duty,
which act or omission: 1. Annoys, injures, or endangers the comfort, repose,
health, or safety of others; . . . or 4. In any way renders other persons insecure
in life or in the use of property.” N.D.C.C. § 42-01-01; see also N.D.C.C. § 42-
01-02 (defining private nuisance as affecting “a single individual or a
determinate number of persons in the enjoyment of some private right not
common to the public”). “Whether a statutory nuisance exists is a mixed
question of fact and law.” [CITATION]
[¶33] The restrictive covenants state their purpose, in part, is “to prevent
nuisances, to prevent the impairment of the attractiveness of the property,”
and to secure each owner the “full benefit and enjoyment of his or her home
and Residential Lot.” The district court concluded the nuisance claims based
on theories of PUD and covenant violations were moot given its determination
that there were no violations. As explained above, the Sellers violated the bay
setback requirement in the PUD and restrictive covenants. The PUD and
covenant violations constitute an “unlawful” act for purposes of a nuisance
under N.D.C.C. § 42-01-01. We conclude the court erred in granting summary
judgment to Sellers on Bergers’ nuisance claim.
[¶34] In addition to the PUD and covenant setback violations, Bergers contend
Sellers’ home creates a nuisance through violations of the North Dakota
Century Code and Bismarck Code of Ordinances. Under N.D.C.C. § 40-47-
03(4), zoning regulations are designed, in part, to provide adequate light. See
also Bismarck Code of Ordinances § 14-02-01 (same). Under § 14-04-18 of the
Bismarck Code of Ordinances, PUDs are intended in part “to preserve the
natural and scenic features of open space.” Bergers assert these general
provisions are violated by Sellers’ home blocking light and preventing natural
and scenic open spaces. In [CITATION], we rejected the homeowners’ nuisance claim
based on their neighbor’s pool house obstructing their view of the “open prairie
look” in their subdivision. [CITATION] We concluded the
homeowners had no cognizable right to an unobstructed view from their
property and as a matter of law the neighbor’s pool house did not unreasonably
interfere with their use and enjoyment of their property. [CITATION] Similarly,
we conclude Bergers do not have a right to sunlight and open space on adjacent
properties. As a matter of law, Sellers’ home does not unreasonably interfere
with Bergers’ use and enjoyment of their property. Thus, to the extent Bergers
====== argue Sellers’ home creates a nuisance—independent from the PUD/covenant
setback violations—by blocking light and preventing natural and scenic open
spaces, we affirm the grant of summary judgment.
[¶35] We reverse summary judgment on Bergers’ claim of private nuisance
against Sellers based on the setback violation. Because we conclude the
Association did not violate the restrictive covenants, we affirm the district
court’s grant of summary judgment dismissing the nuisance claim against the
Association.
VII
[¶36] Bergers argue the district court erred in granting summary judgment
dismissing their negligence claims against Sellers, Builder, and the
Association. “Actionable negligence consists of a duty on the part of an
allegedly negligent party to protect the plaintiff from injury, a failure to
discharge that duty, and a resulting injury proximately caused by the breach
of the duty.” [CITATION]. “Conduct that constitutes a breach of contract does not subject the actor to an
action in tort for negligence, unless the conduct also constitutes a breach of an
independent duty that did not arise from the contract.” [CITATION]. Bergers assert the
defendants owe them a duty independent from the covenants under N.D.C.C.
§ 9-10-01, which states, “Every person is bound without contract to abstain
from injuring the person or property of another or infringing upon any of that
person’s rights.” Bergers contend that defendants breached this statutory duty
by infringing upon their “right to the full benefit and enjoyment of their
property, right to be free from private nuisances” and “right to adequate light
and the preservation of natural and scenic open spaces.”
[¶37] “Negligence actions involve issues of fact and generally are inappropriate
for summary judgment.” [CITATION]. Whether a duty of care is owed, however, is generally a question
of law:
Generally, the existence of a duty is a preliminary question
of law for the court. When a duty does not exist, there is no
negligence. If determining the existence of a duty depends on
resolving factual issues, the facts must be resolved by the trier of
fact. However, issues of fact may become issues of law for the court
if reasonable persons could reach only one conclusion from the
facts.
Id. at ¶ 10 (cleaned up).
[¶38] Section 9-10-01, N.D.C.C., was derived from David Dudley Field’s
proposed Civil Code of the State of New York § 847 (1865) (“Civil Code”), which
was adopted by the Dakota Territory legislature. See Revised Codes of the
Territory of Dakota § 973 (1877); [CITATION]; William B. Fisch, Civil Code: Notes for an Uncelebrated Centennial, 43 N.D. L.
Rev. 485, 485-86 (1967). To the extent Bergers argue § 9-10-01 requires a
special or heightened duty of care by defendants, we reject that argument.
Section 9-10-01 codifies the general duty of care to abstain from injuring
property or infringing upon rights. [CITATION] (stating N.D.C.C. § 9-10-01 recognizes the “general duty of care”);
[CITATION] (recognizing “property owner’s general duty to ensure that his
property does not injure others or their property” under N.D.C.C. §§ 9-10-01,
9-10-06, 42-01-01(4)); see also N.D.C.C. § 9-10-06 (“A person is responsible . . .
for an injury occasioned to another by the person’s want of ordinary care or
skill in the management of the person’s property or self.”). Other states
adopting this Civil Code provision have similarly recognized it sets forth the
general duty of care. See [CITATION]; see also [CITATION] (“California court decisions construing Field Code sections, while
not binding, are entitled to respectful consideration, and may be ‘persuasive
and should not be ignored.’”); [CITATION]
(same with other Civil Code states). Thus, we apply general negligence
principles in determining whether Sellers, Builder, or the Association owed
Bergers a duty of care. Under general negligence principles, we have “focused
on both foreseeability of injury and the relationship of the parties in deciding
whether a duty exists.” [CITATION]
[¶39] Bergers contend Sellers owed them a duty to not construct their home so
as to injure their property interests. They assert that because the harm caused
by the construction of the home was foreseeable and their relationship is that
of next-door neighbors and Association members, Sellers had a legal obligation
to prevent harm. We conclude Sellers owed Bergers the ordinary duty of care
amongst neighbors in a homeowners’ association.
[¶40] Bergers argue Sellers’ home harms them by extending beyond the
setbacks, blocking light, and causing “ongoing drainage issues.” Because
Sellers’ setback duties derive exclusively from the PUD and covenants, Sellers
do not owe Bergers an independent duty to abide by the setbacks beyond their
contractual duties. See [CITATION]. Thus, any
negligence claim against Sellers based on the setbacks fails as a matter of law.
[¶41] Bergers’ negligence claim against Sellers based on Sellers’ home blocking
light and preventing natural and scenic open spaces fails for the same reason
it failed under the nuisance claim. Bergers have no right to sunlight and open
space on adjacent properties. Therefore, Sellers have no duty to ensure Bergers
retain unobstructed access to sunlight and open space when constructing a
home on their property.
[¶42] On the drainage issue, Bergers submitted a report in response to Sellers’
motion for summary judgment in which Bergers’ expert opines that they would
need to expend $5,000 to $10,000 to improve the drainage issues, which
Bergers allege are caused by Sellers’ home. This raises a genuine issue of
material fact whether Sellers negligently built their home, preventing proper
drainage and causing damage to Bergers’ property. See [CITATION] (noting “[t]he casting of surface waters
from one’s own land upon the land of another under circumstances where the
resulting damage was foreseen or foreseeable, is tortious and liability results
[SEGMENT 11]
if the interference with the flow of surface waters is found to be unreasonable,”
which is a question of fact). Whether Sellers’ home is the proximate cause of
the alleged drainage damage is also a disputed question of fact. Thus, we
conclude a genuine dispute of material fact exists as to the drainage issue for
which summary judgment was inappropriately granted to Sellers.
[¶43] Bergers assert the Association owed them a duty to not approve a home
construction that would foreseeably injure their interests. We agree the
Association owed Bergers, as members of the Association, reasonable care in
approving construction plans. As with the discussion on the claim for breach of
fiduciary duty, we do not opine on the extent of this relationship at this
summary judgment stage. The fact finder must determine how a reasonable
homeowners’ association would act under the circumstances and whether this
Association exercised reasonable care in performing its duties. Further, a
genuine dispute of material fact exists as to whether the Association’s actions
or omissions proximately caused the alleged harm. Therefore, we conclude
genuine issues of material fact exist on Bergers’ negligence claim against the
Association.
[¶44] Bergers argue Builder owed them a duty to not construct a home in a
manner that injured them. “[O]ne who undertakes to design and construct a
structure has a duty to exercise ordinary care and skill to protect any who
foreseeably, or with reasonable anticipation, may be injured by the failure to
do so.” [CITATION]. “Generally, a contractor may be relieved of liability if he followed the
contractee’s plans or specifications which were defective or insufficient, and
the defect or insufficiency caused the damage.” [CITATION]. “[A] contractor who
follows the owner’s plans and specifications may be liable if they are ‘so
obviously defective and dangerous that no reasonable man would follow them.’”
[CITATION]. Bergers do not argue that Builder failed to follow Sellers’ plans
or specifications in constructing their home. Nor do Bergers contend the plans
and specifications were “so obviously defective and dangerous that no
reasonable man would follow them.” Thus, on this record, we conclude the
district court did not err in determining as a matter of law that Builder was
not liable to Bergers in its construction of Sellers’ home.
[¶45] Under the general duty of care and the record before us, we conclude the
district court erred in determining as a matter of law that Sellers owe no duty
of care to Bergers regarding alleged drainage damage caused by Sellers’ home.
We further conclude the court erred in determining as a matter of law the
Association owed no duty to Bergers. We conclude genuine disputes of material
fact exist as to whether Sellers and the Association breached a duty owed to
Bergers to abstain from injuring property or infringing upon Bergers’ rights,
and whether a resulting injury was proximately caused by the alleged breach
of the duty. [CITATION] We reverse the grant of summary judgment dismissing Bergers’ negligence claims
against the Association and against Sellers on the drainage issue. We affirm
the grant of summary judgment dismissing Bergers’ negligence claim against
Builder.
VIII
[¶46] Sellers and Builder argue the district court erred in dismissing their
claims of defamation, interference with contract and business, and negligence
against Bergers and Jeff Carlson. These claims are based upon the
conversations between Darren Berger, Jeff Carlson, and David Rogstad and
the subsequent actions taken by Starion on pausing payments on the
construction loan for one to two weeks and removing Big River Builders from
its “approved builders list.” The relevant statements include: Darren Berger
telling Carlson that he was contemplating commencing a lawsuit against
Sellers and Big River Builders because he believed Sellers’ home was built
beyond the bay setback; Carlson telling Rogstad, a Starion employee, he
believed Sellers’ home was “50, 60 feet past the setback” and a possible lawsuit
was “coming his way”; and Darren Berger telling Rogstad that he believed
Sellers’ home was built beyond the “flood line” and pointing out the stake he
believed marked that line. For the reasons stated below, we affirm the
dismissal of these claims.
A
[¶47] Builder argues the district court erred in granting summary judgment
and dismissing its defamation claims against Darren Berger and Carlson.
Defamation consists of slander and libel. N.D.C.C. § 14-02-02. “Slander is a
false and unprivileged publication other than libel.” N.D.C.C. § 14-02-04.
Because we conclude Sellers’ home violates the setback requirement, Darren
Berger’s and Carlson’s statements that Sellers’ home was built beyond the
setback are not false and cannot be defamatory.
B
[¶48] Sellers and Builder argue the district court erred in dismissing their
intentional interference with contract claims against Bergers and Carlson. “To
establish a prima facie case for intentional interference with contract, a
plaintiff must prove (1) a contract existed, (2) the contract was breached, (3)
the defendant instigated the breach, and (4) the defendant instigated the
breach without justification.” [CITATION]. Sellers and Big River Builders alleged Berger and Carlson
interfered with the construction contract between Sellers and Builder and the
construction loan agreement between Sellers and Starion. The district court
concluded no evidence was presented showing either of these contracts was
breached. Specifically as to the construction contract, the court concluded that
Big River Builders was paid in full for the construction, the home was
completed by the Fall 2020 Parade of Homes as contracted, and the
subcontractors and suppliers were paid in full without any late payment fees
or interest charges. As to the construction loan agreement, the court noted that
Starion did not pull the loan; rather Sellers elected to obtain a loan with
another bank. Sellers and Builder do not cite any express provision of the
contracts that was breached. Thus, dismissal of these claims was warranted.
C
[¶49] Builder contends Darren Berger’s and Carlson’s statements to Starion
employee Rogstad caused the delays in payments and removal from the
approved builders list, interfering with its business relationships or
expectancies. “[T]o prevail on a claim for unlawful interference with business,
a plaintiff must prove the following essential elements: (1) the existence of a
valid business relationship or expectancy; (2) knowledge by the interferer of
the relationship or expectancy; (3) an independently tortious or otherwise
unlawful act of interference by the interferer; (4) proof that the interference
caused the harm sustained; and (5) actual damages to the party whose
relationship or expectancy was disrupted.” [CITATION]. We conclude Builder
failed as a matter of law to show Bergers or Carlson committed an independent
tort or otherwise unlawful act of interference.
D
[¶50] Sellers and Builder argue the district court erred in dismissing their
negligence claims against Bergers. They assert Bergers violated their duty
under N.D.C.C. § 9-10-01 to refrain from infringing upon their rights. We
conclude as a matter of law a breach of duty did not occur because Darren
Berger did not make false statements. Accordingly, the negligence claims were
properly dismissed.
IX
[¶51] We have considered the parties’ remaining arguments and conclude they
are either without merit or unnecessary to our decision. We reverse the district
court’s grant of summary judgment on Bergers’ claims against Sellers for
violation of the PUD, breach of restrictive covenants, negligence (drainage),
and private nuisance (setbacks). We remand with instructions to grant Bergers
partial summary judgment on their claims against Sellers for violation of the
PUD and breach of restrictive covenants and for declaratory relief (against
Sellers) as requested in their motion for partial summary judgment. We
reverse the court’s grant of summary judgment on Bergers’ claims against the
Association for breach of fiduciary duty and negligence. We affirm the court’s
grant of summary judgment on all of Bergers’ claims against Builder, namely
the PUD violation, breach of restrictive covenants, and negligence. We affirm
the grant of summary judgment on Bergers’ claims against the Association for
breach of restrictive covenants and private nuisance. We affirm the grant of
summary judgment on all of Sellers’ and Builder’s claims. The judgment is
affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
[¶52] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
Bradley A. Cruff, D.J.
[¶53] The Honorable Bradley A. Cruff, District Judge, sitting in place of
Crothers, J., disqualified.
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
SEPTEMBER 28, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 171
Darren Berger and Tamara Berger, Plaintiffs, Appellants, and
Cross-Appellees
v.
Jason Sellers, Krysta Sellers,
Jordan Anderson, Personally, and
Big River Builders, Inc., Defendants, Appellees, and
Cross-Appellants
and
The Misty Waters Owners’
Association, Defendant and Appellee
and
Jason Sellers, Krysta Sellers,
Jordan Anderson, Personally, and
Big River Builders, Inc., Third-Party Plaintiffs, Appellees,
and Cross-Appellants
v.
Jeff Carlson, Third-Party Defendant and Appellee
No. 20220322
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Pamela A. Nesvig, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Tufte, Justice.
Nicholas C. Grant (argued) and Shea A. Miller (on brief), Dickinson, N.D., and
Bradley J. Beehler (on brief) and Victoria A. Vold (appeared), Grand Forks,
N.D., for plaintiffs, appellants, and cross-appellees.
Randall J. Bakke (argued) and Shawn A. Grinolds (appeared), Bismarck, N.D.,
for defendants, appellees, and cross-appellants.
William P. Harrie (argued), Fargo, N.D., for defendant and appellee.
Katie L. Winbauer (argued) and Chris A. Edison (on brief), Bismarck, N.D., for
third-party defendant and appellee.
Zachary E. Pelham and Matthew R. Keller, Bismarck, N.D., for amicus curiae
Misty Waters L.L.C.
Berger v. Sellers
No. 20220322
Tufte, Justice.
[¶1] Darren Berger and Tamara Berger (“Bergers”) appeal from a judgment
dismissing their claims of violation of a planned unit development (PUD),
breach of contract, breach of fiduciary duty, private nuisance, and negligence
against their neighbors Jason Sellers and Krysta Sellers (“Sellers”), Sellers’
homebuilder Jordan Anderson and Big River Builders, Inc. (together,
“Builder”), and the Misty Waters Owners’ Association (“Association”). Sellers
and Builder cross-appeal from the judgment dismissing their claims of
defamation, interference with contract and business, and negligence against
Bergers and neighbor Jeff Carlson. The parties argue the district court erred
by dismissing their respective claims.
[¶2] The central issue in this case is whether the PUD minimum setback from
the bay can be changed by obtaining a new Letter of Map Revision (LOMR)
from the Federal Emergency Management Agency (FEMA) without an
amendment to the PUD. We conclude the PUD unambiguously sets the
minimum setback from the bay as the contour line in the 2005 LOMR-F and
therefore Sellers’ home violates the PUD. The judgment of dismissal is
affirmed in part, reversed in part, and remanded for further proceedings.
I
[¶3] Sellers purchased a lot next to Bergers’ lot in the Misty Waters
development north of Bismarck. Misty Waters is a residential and commercial
development located on the shores of the Missouri River and on an inland,
man-made, off-river bay. Sellers’ and Bergers’ backyards are bordered by the
Misty Waters Bay. The development is controlled by the Misty Waters Planned
Unit Development, which was adopted in June 2005 and amended in 2006 and
2017. The August 2006 “Major PUD Amendment” states “the minimum
setback from the bay shall be elevation 1640.3 (NAVD88) as delineated by the
contour line described in the approved LOMR.” (Emphasis added.) The 2017
amendment to the PUD did not change this provision. The approved LOMR in
1
August 2006 was the 2005 LOMR-F. Subsequent LOMR-F’s were issued by
FEMA in November 2006 and May 2020. Builder applied to FEMA for the 2020
LOMR-F, which is specific to Sellers’ lot. It is undisputed that if the 2005
LOMR-F defines the setback from the bay, Sellers’ home violates the PUD, and
if the 2020 LOMR-F defines the setback, Sellers’ home complies with the PUD.
In addition to the PUD, the Misty Waters development is governed by
restrictive covenants and by-laws. The covenants incorporate the 2006 Major
PUD Amendment.
[¶4] Sellers hired Builder to construct their home. Both the City of Bismarck
(“City”) and the Association’s Architectural Control Committee (ACC)
approved construction of Sellers’ home. Construction began around September
2019. In March 2020, Darren Berger and neighbor Pat Spilman contacted
the Association’s president and the City’s building official regarding Sellers’
home construction and compliance with the setback requirements. Spilman
was specifically concerned the construction of Sellers’ home either violated or
would violate the setback requirements and requested assurances from the
Association that the home would comply with all setbacks. The Association’s
president assured him that the home complied with the setbacks. The building
official recommended to Builder to apply for a new LOMR-F because he
believed the setback from the bay to be an elevation which can change with the
addition of fill dirt and an approved LOMR by FEMA. Builder applied for a
new LOMR-F. On May 28, 2020, FEMA issued a new LOMR-F for Sellers’ lot.
The City issued a certificate of occupancy for Sellers’ home.
[¶5] In the spring of 2020, Darren Berger and neighbor Jeff Carlson had a
conversation about Sellers’ lot. Carlson testified that Darren Berger told him
that he was contemplating commencing a lawsuit against Sellers and Builder
because he believed Sellers’ home was built beyond the bay setback. Around
May 24 or 25, 2020, Carlson called his friend, David Rogstad, a manager at
Starion Bank, which was financing the construction of Sellers’ home. Carlson
testified he told Rogstad that he believed Sellers’ home was “50, 60 feet past
the setback” and that a possible lawsuit was “coming his way.” Rogstad
testified that he inspected Sellers’ lot the next morning after his phone call
with Carlson. Rogstad testified that while he was walking around Sellers’ lot,
2
Darren Berger approached him and told him that he believed Sellers’ home
was built beyond the “flood line” and pointed out the stake he believed marked
that line. Rogstad informed Starion’s Chief Credit Officer LaDawn Schmitt of
his conversations with Carlson and Berger. Starion then paused draw
payments on Sellers’ construction loan and requested information from Sellers
concerning the fill dirt and compliance with the setback. The draws were
paused for approximately one to two weeks. Starion also removed Big River
Builders from its “approved builders list.”
[¶6] In summer 2020, Bergers commenced this lawsuit against Sellers,
Builder, and the Association. After amending the complaint, Bergers alleged
violation of the PUD, breach of contract for violating the restrictive covenants,
breach of fiduciary duty, negligence, and private nuisance. They also sought a
declaratory judgment stating the minimum bay setback is the contour line
established by the surveyed metes-and-bounds legal description in the 2005
LOMR-F. Sellers and Builder counterclaimed against Bergers, alleging
defamation, interference with contract and business, and negligence. Sellers
and Builder also brought a third-party complaint against Carlson for
defamation and interference with contract and business. After cross-motions
for summary judgment, the district court dismissed all claims and entered
judgment. Bergers appeal, and Sellers and Builder cross-appeal.
II
[¶7] Our standard for reviewing a grant of summary judgment is well-
established:
Summary judgment is a procedural device for the prompt
resolution of a controversy on the merits without a trial if there
are no genuine issues of material fact or inferences that can
reasonably be drawn from undisputed facts, or if the only issues to
be resolved are questions of law. A party moving for summary
judgment has the burden of showing there are no genuine issues
of material fact and the moving party is entitled to judgment as a
matter of law. In determining whether summary judgment was
appropriately granted, we must view the evidence in the light most
favorable to the party opposing the motion, and that party will be
3
given the benefit of all favorable inferences which can reasonably
be drawn from the record. On appeal, this Court decides whether
the information available to the district court precluded the
existence of a genuine issue of material fact and entitled the
moving party to judgment as a matter of law. Whether the district
court properly granted summary judgment is a question of law
which we review de novo on the entire record.
Wheeler v. Southport Seven Planned Unit Dev., 2012 ND 201, ¶ 7, 821 N.W.2d
746.
III
[¶8] Bergers argue the district court erred in concluding Sellers’ home does
not violate the PUD’s bay setback requirement. A PUD is a form of zoning
ordinance where “the type, density and placement of land uses and buildings,
instead of being detailed and confined to specified districts by local legislation
in advance, is determined by contract, or deal, as to each development between
the developer and the municipal administrative authority, under broad
guidelines laid down by state enabling legislation and an implementing local
ordinance.” Wheeler, 2012 ND 201, ¶ 8. We interpret a zoning ordinance under
rules of statutory construction:
The interpretation of an ordinance, like the interpretation of a
statute, is a question of law subject to full review on appeal. In
construing an ordinance, we ascertain the enacting body’s intent
by giving the language its plain, ordinary, and commonly
understood meaning. When the language of an ordinance is free
and clear of all ambiguity, the letter of the ordinance cannot be
disregarded under the pretext of pursuing its spirit. We construe
ordinances as a whole and harmonize them to give meaning to
related provisions. We will ordinarily defer to a reasonable
interpretation of a statute by the agency enforcing it, but an
interpretation that contradicts clear and unambiguous language is
not reasonable.
Hagerott v. Morton Cnty. Bd. of Comm’rs, 2010 ND 32, ¶ 13, 778 N.W.2d 813
(citations omitted).
4
A
[¶9] The PUD states “the minimum setback from the bay shall be elevation
1640.3 (NAVD88) as delineated by the contour line described in the approved
LOMR.” (Emphasis added.) The district court concluded that “the approved
LOMR” is the most recently approved LOMR by FEMA pertaining to the lots
described in the LOMR. Thus, the court determined the 2020 LOMR-F
pertaining specifically to Sellers’ lot was “the approved LOMR” for that lot. In
reaching its conclusion, the court noted the 2020 LOMR-F states,
“SUPERSEDES OUR PREVIOUS DETERMINATION (This Additional
Consideration applies to all properties in the LOMR-F DETERMINATION
DOCUMENT (REMOVAL))[.] This Determination Document supersedes our
previous determination dated 8/5/2014, for the subject property.” Further, the
court reasoned the City has discretion when interpreting its own ordinances.
[¶10] Bergers argue “the approved LOMR” refers to the only LOMR in
existence at the time that language was added to the PUD, the 2005 LOMR-F.
We agree. By its plain language, the PUD refers to a single LOMR (“the”
LOMR) which has already been approved by FEMA. The district court’s
interpretation reads further language into the PUD that does not exist, such
as “any” approved LOMR or “the most recently approved LOMR specific to the
lot.” Under the court’s interpretation, at least three approved LOMR’s (2005,
2006, 2020) would appear to dictate the bay setback, as opposed to “the contour
line described in the approved LOMR.”
[¶11] Under our rules of statutory construction, a subsequent modification to
an incorporated reference in a statute does not amend the statute unless
clearly expressed in the statute:
One rule applied in the construction of statutes is that where
one statute adopts the particular provisions of another statute by
a specific and descriptive reference to the statute or provision
adopted the effect is the same as though the statute or provision
adopted had been incorporated bodily into the adopting statute.
Such adoption takes the statute as it exists at the time of adoption
and does not include subsequent additions or modifications of the
5
statute so taken unless it does so by express intent or necessary
implication.
Egbert v. City of Dunseith, 24 N.W.2d 907, 910 (N.D. 1946). In Egbert, the Court
concluded that although a state constitutional provision prohibiting liquor sale
had been repealed, prior to its repeal it had been incorporated by reference in
a provision authorizing cities to engage in “business not prohibited by Article
20” (the since-repealed constitutional provision prohibiting the sale of liquor).
24 N.W.2d at 907, 909-10 (interpreting N.D. Const. § 185, now art. X, § 18).
Despite the repeal of the prohibition article, we held its incorporation by
reference in § 185 preserved the exclusion of liquor sales from the businesses
in which cities may engage. Id. In State v. Julson, the Court construed a state
statute adopting by reference the definition of LSD as defined in federal law
“as amended” and regulations promulgated thereunder to mean the federal law
and regulations in existence at the time of enactment of the adopting statute.
202 N.W.2d 145, 151 (N.D. 1972). Interpreting the statute to avoid
constitutional doubt about unlawful delegation of legislative power, the Court
concluded, “We do not construe, in this case, the adopting statutes as
attempting to adopt future laws, rules or regulations of the federal
government.” Id. As Egbert and Julson demonstrate, where an incorporated
reference is subsequently modified or repealed, that change does not alter the
meaning of the law incorporating that reference.
[¶12] Here, the PUD adopted by reference “the contour line described in the
approved LOMR” to define the minimum setback from the bay. Thus, the PUD
adopted the bay setback requirement existing at the time of adoption and as
described in the 2005 LOMR-F. Subsequent LOMRs issued by FEMA do not
modify the PUD’s bay setback requirement.
[¶13] The district court erroneously relied upon the 2020 LOMR-F’s
superseding language—“[t]his Determination Document supersedes our
previous determination”—in reaching its conclusion that the bay setback
pertaining to Sellers’ lot was changed when FEMA issued the 2020 LOMR-F.
The PUD does not state the setback requirements can be changed through the
issuance of a new LOMR by FEMA. To the contrary, within the same paragraph
6
as the setback requirements, the PUD states, “Any change to the density or
building setbacks that are inconsistent with these standards will require an
amendment to this PUD.” The final paragraph in the PUD provides, “This PUD
shall only be amended in accordance with Section 14-04-18(4) of the City Code
of Ordinances (Planned Unit Developments). Major changes require a public
hearing and a majority vote of the Bismarck Planning & Zoning Commission.”
The PUD has not been amended to change the bay setback. This additional
provision within the same paragraph emphasizing that “[a]ny change to the . .
. building setbacks” requires an amendment to the PUD further supports the
interpretation that the bay setback was a static line as delineated in the 2005
LOMR-F, which landowners and prospective landowners could rely upon.
[¶14] Under section 14-04-19(3) of the Bismarck Code of Ordinances, “Letter
of map revision (LOMR)” is defined as “an official amendment to the currently
effective flood insurance rate map (FIRM) which is issued by FEMA and
changes flood zones, delineations and elevations.” Thus, the 2020 LOMR-F
superseded FEMA’s previous amendment to the flood insurance rate map, but
did not supersede provisions of the PUD. The 2020 LOMR-F acknowledges this
purpose, stating the subject property is not located in the Special Flood Hazard
Area—“an area inundated by the flood having a 1-percent chance of being
equaled or exceeded in any given year”—and thus federal mandatory flood
insurance is not required. Accordingly, the PUD’s bay setback requirement and
FEMA’s flood insurance rate map determination are not one and the same.
[¶15] We conclude the PUD unambiguously states that the minimum setback
from the bay is delineated by the contour line established by the surveyed
metes-and-bounds legal description from the 2005 LOMR-F. Because the PUD
is unambiguous, we need not consider whether or to what extent the City’s
interpretation of its ordinance is reasonable and entitled to deference.
Hagerott, 2010 ND 32, ¶ 13 (“[A]n interpretation that contradicts clear and
unambiguous language is not reasonable.”); Pulkrabek v. Morton Cnty., 389
N.W.2d 609, 615 (N.D. 1986) (explaining the County’s “interpretation is not
necessarily controlling,” and giving deference to its application of ambiguous
term in zoning ordinance as not arbitrary, capricious, or unreasonable).
Because Sellers’ home violates the PUD, we reverse on this issue as to Sellers
7
and remand with instructions to grant Bergers partial summary judgment on
this issue as requested in their motion for partial summary judgment. To the
extent Bergers claim Builder violated the PUD, we conclude Builder was acting
as an agent of Sellers in constructing Sellers’ home and Builder is not liable for
any setback violation caused by Sellers’ home. By its plain language, the PUD
governs the minimum setback from the bay of residential buildings. Although
Sellers’ home violates the PUD’s bay setback requirement, Builder has no
control, possession, or ownership of Sellers’ home. Bergers have not argued how
Builder’s construction of Sellers’ home, as opposed to the structure itself
extending beyond the bay setback, violates the PUD. Nor have Bergers argued
on appeal that Builder has exceeded its role as Sellers’ agent and therefore is
liable as principal. See N.D.C.C. § 3-04-02 (providing when an agent is liable
to third persons). We affirm the grant of summary judgment as to Builder.
B
[¶16] Sellers and Builder argue the PUD violation claims were properly
dismissed because Bergers failed to exhaust their administrative remedies.
The district court concluded Bergers had the right to sue without exhausting
their administrative remedies. Bergers contend this issue was waived because
Sellers and Builder did not appeal from the order rejecting this argument.
Because Sellers and Builder argued in the district court that Bergers failed to
exhaust their administrative remedies and are not seeking a more favorable
result on appeal than they received in the district court, the exhaustion of
remedies argument is properly before us and we turn to the merits of the
argument. Kalvoda v. Bismarck Pub. Sch. Dist. #1, 2011 ND 32, ¶ 14, 794
N.W.2d 454.
[¶17] Under section 14-05-03 of the Bismarck Code of Ordinances, “It is the
intent of this article that questions arising in connection with the enforcement
of the article shall be presented first to the Zoning Administrator.” As the
district court recognized, Bismarck Code of Ordinances § 14-05-04 provides a
private right of action for certain violations of zoning ordinances:
In case any building or structure is erected, constructed,
reconstructed, repaired, moved, converted or maintained, or any
8
building, structure, or land is used in violation of this article, the
building inspector or any other appropriate authority or any
adjacent, nearby or neighboring property owner who would be
affected by such violation, in addition to other remedies, may
institute injunction, mandamus, or other appropriate action in
proceeding to prevent the occupancy of such building, structure or
land.
The court concluded the administrative process described in § 14-05-03 does
not require first exhaustion, Bergers could pursue either process, and thus the
express private right of action in § 14-05-04 allowed Bergers to file suit without
exhausting administrative remedies.
[¶18] “Ordinarily, a party must exhaust available administrative remedies
before seeking declaratory or injunctive relief.” Zerr v. N.D. Workforce Safety
& Ins., 2017 ND 175, ¶ 12, 898 N.W.2d 700. One exception to the exhaustion of
remedies doctrine is “when a legal question simply involves statutory
interpretation and does not need the exercise of an agency’s expertise in
making factual decisions.” Medcenter One, Inc. v. N.D. State Bd. of Pharmacy,
1997 ND 54, ¶ 12, 561 N.W.2d 634. In Medcenter One, at ¶¶ 2, 5, a hospital
sought judgment declaring the pharmacy it owned was exempt from the
statutory requirement that it be majority-owned by pharmacists. The State
Board of Pharmacy argued the hospital failed to exhaust administrative
remedies before suing for declaratory relief. Id. at ¶ 8. We concluded the
hospital was not required to exhaust administrative remedies prior to suit
because the case involved “only the interpretation of an unambiguous statute,
and does not involve any issues generally reserved to an administrative
decisionmaker.” Id. at ¶ 21.
[¶19] As stated above, the PUD violation claim involves the interpretation of
the PUD, which is governed by the rules of statutory construction. We have
concluded the PUD is unambiguous as to the bay setback requirement, and the
relevant facts are undisputed. Accordingly, we conclude the district court did
not err in determining Bergers did not have to exhaust administrative
remedies prior to bringing suit.
9
IV
A
[¶20] Bergers argue the district court erred in dismissing their breach of
restrictive covenants claims against Sellers and Association.
[¶21] “[A] landowner may sell land subject to restrictive covenants, provided
the covenants are not contrary to public policy.” Ceynar v. Barth, 2017 ND 286,
¶ 12, 904 N.W.2d 469. Although restrictive covenants are not favored, they will
be given full effect when “clearly established.” Id. “The interpretation of a
restrictive covenant is generally governed by rules for interpretation of a
contract.” Id. “A breach of contract is the nonperformance of a contractual duty
when it is due.” WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 13, 730 N.W.2d
841. “The elements of a prima facie case for breach of contract are: (1) the
existence of a contract; (2) breach of the contract; and (3) damages which flow
from the breach.” Id.
[¶22] The restrictive covenants provide:
Building Set Back and Location. THE MISTY WATERS
PLANNED UNIT DEVELOPMENT, Ordinance #5435 (as
amended and adopted on August 23, 2006), which document
is attached hereto as Exhibit “A”, and made a part hereof
by reference, sets forth the corridors within which all residential
structures within the subdivision shall be built. . . . The precise
location of all structures to be constructed on a given Lot shall
be subject to the prior written consent and approval of the
Architectural Control Committee.
Bergers argue that under this covenant the Association has a contractual duty
to ensure homes are built in compliance with the PUD setback requirements
and Sellers have a contractual duty to build their home within the setback
requirements. Given the violation of the PUD’s bay setback, Bergers contend
the Association and Sellers breached their duties.
[¶23] The district court concluded this issue was moot because Sellers did not
violate the PUD setback, and thus determined as a matter of law that Sellers
10
did not breach the covenants. As to the Association, the court concluded that
under Ceynar “a homeowner does not have a cause of action against an
association under a breach of contract/covenant/nuisance claim based upon
a failure to enforce restrictions where they are discretionary under the
association’s by-laws.” In Ceynar, we concluded that “it is not necessary to
address the breach of any contractual obligation the Association allegedly owed
to the Ceynars to enforce the covenants” because the district court did not err
in determining the covenants did not prohibit the construction of a pool house,
which was the alleged underlying violation. 2017 ND 286, ¶¶ 11, 18. Thus,
because the construction of the pool house was not in fact a violation of the
covenants, we did not need to reach the additional question of whether the
Association breached a duty to enforce that covenant. Here, we have
determined there was a violation of the PUD, which is incorporated into the
covenants. Thus, this case differs from Ceynar in that respect and we must
determine whether the Association breached a duty owed to Bergers as stated
in the covenants.
[¶24] Under the restrictive covenants, lot owners are expressly given the
authority to sue “to prevent the breach of, or to enforce the observance of the
covenants.” Similarly, the by-laws allow lot owners to sue other owners or the
Association “for failure to comply with the provisions of the Declaration, these
By-Laws, the Restrictive Covenants or with decisions of the Owners’
Association which are made pursuant to authority granted the Owners’
Association in such documents.” Under these provisions, Bergers can sue
Sellers and the Association for violating the covenants. The restrictive
covenants incorporate by reference the 2006 PUD and require homes to be built
according to the PUD requirements. Because Sellers’ home violates the 2006
PUD bay setback, we conclude Sellers violated the covenant incorporating that
requirement and breached their contractual duty owed to Bergers.
[¶25] As to the Association, Bergers rely on the same provisions of the
restrictive covenants incorporating by reference the 2006 PUD setback
requirements. Bergers contend that because homes cannot be located beyond
the minimum setback from the bay and Sellers’ home violates this setback
requirement, the Association breached its duty to “only approve structures that
11
comply with the PUD.” While the covenants and by-laws allow lot owners to
sue the Association for a violation of the covenants, the covenant alleged to be
breached must be “clearly established.” Ceynar, 2017 ND 286, ¶ 12. Bergers
have not demonstrated that the Association has a contractual obligation to
them to “only approve structures that comply with the PUD” or that the
Association breached an express provision of the covenants. In fact, the
restrictive covenants state the Association’s ACC “shall have total discretion
in the approval or rejection of construction plans and the location of all
structures to be constructed on each Residential Lot within the Misty Waters.”
See also Ceynar, 2017 ND 286, ¶ 14 (deferring to homeowners’ association’s
finding that covenant prohibiting nuisances was not violated when covenant
gave its architectural committee “sole discretion” to determine whether a
nuisance existed for purposes of that covenant). Thus, we conclude the
Association did not breach a contractual duty in the restrictive covenants and
the district court did not err in dismissing the claim as to the Association.
[¶26] We reverse the district court’s grant of summary judgment to Sellers,
concluding as a matter of law Sellers breached the restrictive covenant
incorporating the PUD’s bay setback requirement. We remand to the court with
instructions to grant Bergers partial summary judgment against Sellers on the
breach of restrictive covenants claim as requested in their motion for partial
summary judgment. We affirm the grant of summary judgment on the
restrictive covenants claims as to the other defendants.
B
[¶27] Sellers argue the district court lacked subject matter jurisdiction over
Bergers’ claim they violated the covenants and therefore the claim was
properly dismissed by the court (albeit for another reason). Sellers contend
provisions of the covenants and by-laws preclude the court from determining
violations of the covenants. Specifically, Sellers cite the covenant granting the
ACC total discretion in approving or rejecting construction plans and structure
locations. Sellers also cite a by-law stating that the ACC “shall have the
exclusive power, discretion and jurisdiction to approve, modify, or amend plans
12
to cause proposed modifications or improvements to be in conformity and to be
compatible with the general building and architectural design.”
[¶28] The district court concluded it had subject matter jurisdiction based
upon the clear right of action for lot owners under the restrictive covenants
and by-laws. We agree. The covenants expressly give lot owners the right to
sue “to prevent the breach of, or to enforce the observance of the covenants.”
The by-laws provide lot owners an express right of action against other lot
owners for failure to comply with the provisions of the covenants and by-laws.
Thus, the covenants and by-laws have not stripped the court of subject matter
jurisdiction as Sellers argue, and we conclude the court did not err in exercising
its jurisdiction.
V
[¶29] Bergers contend the district court erred in granting summary judgment
on their breach of fiduciary duty claim against the Association. To establish a
breach of fiduciary duty, the plaintiff must prove: 1) a fiduciary relationship
between the plaintiff and defendant; 2) a duty by the defendant to the plaintiff
arising from that relationship; 3) the defendant’s breach of that duty; and 4)
damage to the plaintiff proximately caused by that breach of duty. In re Estate
of Sande, 2020 ND 125, ¶ 30, 943 N.W.2d 826. The court concluded Bergers
failed to show the existence of a fiduciary relationship between Bergers and
the Association. The court noted the parties did not cite any case law that
would support a fiduciary relationship in this situation and North Dakota
statutory law does not recognize such a relationship.
[¶30] Bergers argue whether a fiduciary relationship exists is a question of fact
and under the facts of this case, the fiduciary relationship exists between them
and the Association. “Whether a fiduciary relationship exists is generally a
question of fact, dependent upon a showing of special circumstances.” Prod.
Credit Ass’n of Fargo v. Ista, 451 N.W.2d 118, 121 (N.D. 1990). In viewing the
facts in a light most favorable to Bergers as the non-movant on this claim in
the summary judgment stage, a genuine dispute of material fact exists as to
whether a fiduciary relationship exists between Bergers and the Association.
While a relationship between the parties exists, whether it is akin to a
13
fiduciary relationship requires the fact finder to weigh the evidence. Thus, we
conclude the district court erred in concluding as a matter of law no fiduciary
relationship can exist between a homeowner and the homeowners’ association.
[¶31] The district court also concluded as a matter of law the Association did
not breach any such fiduciary duty. The Association urges the Court to apply
the “business judgment” rule, precluding judicial review of legitimate business
decisions of the Association, absent fraud or bad faith. In Agassiz West
Condominium Ass’n v. Solum, this Court applied the business judgment rule
to a condominium board’s actions regarding repairs to the condominium
common areas. 527 N.W.2d 244, 248 (N.D. 1995). Under the business judgment
rule, “absent claims of fraud, self-dealing, unconscionability or other
misconduct, the court . . . should limit its inquiry to whether the [board’s] action
was authorized and whether it was taken in good faith and in furtherance of
the legitimate interests of the condominium.” Id. Even if the business
judgment rule applied to the ACC’s approval of Sellers’ home, which we express
no opinion on, factual disputes remain. For example, the president of the
Association, who was a member of the ACC, testified she did not review the
PUD prior to approving construction of Sellers’ home. The vice-president
testified he did not review the PUD when he joined the Association’s board in
2018, which is also when he became a member of the ACC, and believed the
setback from the bay was the same line as the drainage easement. He further
testified that he and the president were the only two members of the ACC at
one time during the construction approval process of Sellers’ home. Thus, a
genuine dispute of material fact exists as to whether the Association breached
any duty it owed to Bergers when the ACC approved the construction of Sellers’
home. We reverse the grant of summary judgment on Bergers’ claim of breach
of fiduciary duty against the Association.
VI
[¶32] Bergers argue the district court erred in granting summary judgment
dismissing their private nuisance claims against Sellers and the Association.
“A nuisance consists in unlawfully doing an act or omitting to perform a duty,
which act or omission: 1. Annoys, injures, or endangers the comfort, repose,
14
health, or safety of others; . . . or 4. In any way renders other persons insecure
in life or in the use of property.” N.D.C.C. § 42-01-01; see also N.D.C.C. § 42-
01-02 (defining private nuisance as affecting “a single individual or a
determinate number of persons in the enjoyment of some private right not
common to the public”). “Whether a statutory nuisance exists is a mixed
question of fact and law.” Ceynar, 2017 ND 286, ¶ 20.
[¶33] The restrictive covenants state their purpose, in part, is “to prevent
nuisances, to prevent the impairment of the attractiveness of the property,”
and to secure each owner the “full benefit and enjoyment of his or her home
and Residential Lot.” The district court concluded the nuisance claims based
on theories of PUD and covenant violations were moot given its determination
that there were no violations. As explained above, the Sellers violated the bay
setback requirement in the PUD and restrictive covenants. The PUD and
covenant violations constitute an “unlawful” act for purposes of a nuisance
under N.D.C.C. § 42-01-01. We conclude the court erred in granting summary
judgment to Sellers on Bergers’ nuisance claim.
[¶34] In addition to the PUD and covenant setback violations, Bergers contend
Sellers’ home creates a nuisance through violations of the North Dakota
Century Code and Bismarck Code of Ordinances. Under N.D.C.C. § 40-47-
03(4), zoning regulations are designed, in part, to provide adequate light. See
also Bismarck Code of Ordinances § 14-02-01 (same). Under § 14-04-18 of the
Bismarck Code of Ordinances, PUDs are intended in part “to preserve the
natural and scenic features of open space.” Bergers assert these general
provisions are violated by Sellers’ home blocking light and preventing natural
and scenic open spaces. In Ceynar, we rejected the homeowners’ nuisance claim
based on their neighbor’s pool house obstructing their view of the “open prairie
look” in their subdivision. 2017 ND 286, ¶¶ 25, 28. We concluded the
homeowners had no cognizable right to an unobstructed view from their
property and as a matter of law the neighbor’s pool house did not unreasonably
interfere with their use and enjoyment of their property. Id. at ¶ 28. Similarly,
we conclude Bergers do not have a right to sunlight and open space on adjacent
properties. As a matter of law, Sellers’ home does not unreasonably interfere
with Bergers’ use and enjoyment of their property. Thus, to the extent Bergers
15
argue Sellers’ home creates a nuisance—independent from the PUD/covenant
setback violations—by blocking light and preventing natural and scenic open
spaces, we affirm the grant of summary judgment.
[¶35] We reverse summary judgment on Bergers’ claim of private nuisance
against Sellers based on the setback violation. Because we conclude the
Association did not violate the restrictive covenants, we affirm the district
court’s grant of summary judgment dismissing the nuisance claim against the
Association.
VII
[¶36] Bergers argue the district court erred in granting summary judgment
dismissing their negligence claims against Sellers, Builder, and the
Association. “Actionable negligence consists of a duty on the part of an
allegedly negligent party to protect the plaintiff from injury, a failure to
discharge that duty, and a resulting injury proximately caused by the breach
of the duty.” Groleau v. Bjornson Oil Co., 2004 ND 55, ¶ 6, 676 N.W.2d 763.
“Conduct that constitutes a breach of contract does not subject the actor to an
action in tort for negligence, unless the conduct also constitutes a breach of an
independent duty that did not arise from the contract.” Olander Contracting
Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 26, 643 N.W.2d 29. Bergers assert the
defendants owe them a duty independent from the covenants under N.D.C.C.
§ 9-10-01, which states, “Every person is bound without contract to abstain
from injuring the person or property of another or infringing upon any of that
person’s rights.” Bergers contend that defendants breached this statutory duty
by infringing upon their “right to the full benefit and enjoyment of their
property, right to be free from private nuisances” and “right to adequate light
and the preservation of natural and scenic open spaces.”
[¶37] “Negligence actions involve issues of fact and generally are inappropriate
for summary judgment.” Palmer v. 999 Quebec, Inc., 2016 ND 17, ¶ 9, 874
N.W.2d 303. Whether a duty of care is owed, however, is generally a question
of law:
16
Generally, the existence of a duty is a preliminary question
of law for the court. When a duty does not exist, there is no
negligence. If determining the existence of a duty depends on
resolving factual issues, the facts must be resolved by the trier of
fact. However, issues of fact may become issues of law for the court
if reasonable persons could reach only one conclusion from the
facts.
Id. at ¶ 10 (cleaned up).
[¶38] Section 9-10-01, N.D.C.C., was derived from David Dudley Field’s
proposed Civil Code of the State of New York § 847 (1865) (“Civil Code”), which
was adopted by the Dakota Territory legislature. See Revised Codes of the
Territory of Dakota § 973 (1877); Grabow v. Bergeth, 229 N.W. 282, 285 (1930);
William B. Fisch, Civil Code: Notes for an Uncelebrated Centennial, 43 N.D. L.
Rev. 485, 485-86 (1967). To the extent Bergers argue § 9-10-01 requires a
special or heightened duty of care by defendants, we reject that argument.
Section 9-10-01 codifies the general duty of care to abstain from injuring
property or infringing upon rights. Rassier v. Houim, 488 N.W.2d 635, 637
(N.D. 1992) (stating N.D.C.C. § 9-10-01 recognizes the “general duty of care”);
Herring v. Lisbon Partners Credit Fund, Ltd. P’ship, 2012 ND 226, ¶ 17, 823
N.W.2d 493 (recognizing “property owner’s general duty to ensure that his
property does not injure others or their property” under N.D.C.C. §§ 9-10-01,
9-10-06, 42-01-01(4)); see also N.D.C.C. § 9-10-06 (“A person is responsible . . .
for an injury occasioned to another by the person’s want of ordinary care or
skill in the management of the person’s property or self.”). Other states
adopting this Civil Code provision have similarly recognized it sets forth the
general duty of care. See Bassett v. Lamantia, 2018 MT 119, ¶¶ 23-24, 391
Mont. 309, 417 P.3d 299; Dewey v. Stringer, 2014 MT 136, ¶¶ 17, 19, 375 Mont.
176, 325 P.3d 1236; Katzberg v. Regents of Univ. of Cal., 58 P.3d 339, 356-57
(Cal. 2002); see also Glatt v. Bank of Kirkwood Plaza, 383 N.W.2d 473, 476 n.4
(N.D. 1986) (“California court decisions construing Field Code sections, while
not binding, are entitled to respectful consideration, and may be ‘persuasive
and should not be ignored.’”); Becker v. Becker, 262 N.W.2d 478, 483 (N.D. 1978)
(same with other Civil Code states). Thus, we apply general negligence
principles in determining whether Sellers, Builder, or the Association owed
17
Bergers a duty of care. Under general negligence principles, we have “focused
on both foreseeability of injury and the relationship of the parties in deciding
whether a duty exists.” Palmer, 2016 ND 17, ¶ 15.
[¶39] Bergers contend Sellers owed them a duty to not construct their home so
as to injure their property interests. They assert that because the harm caused
by the construction of the home was foreseeable and their relationship is that
of next-door neighbors and Association members, Sellers had a legal obligation
to prevent harm. We conclude Sellers owed Bergers the ordinary duty of care
amongst neighbors in a homeowners’ association.
[¶40] Bergers argue Sellers’ home harms them by extending beyond the
setbacks, blocking light, and causing “ongoing drainage issues.” Because
Sellers’ setback duties derive exclusively from the PUD and covenants, Sellers
do not owe Bergers an independent duty to abide by the setbacks beyond their
contractual duties. See Olander Contracting, 2002 ND 65, ¶ 26; Superior, Inc.
v. Behlen Mfg. Co., 2007 ND 141, ¶¶ 30-31, 738 N.W.2d 19. Thus, any
negligence claim against Sellers based on the setbacks fails as a matter of law.
[¶41] Bergers’ negligence claim against Sellers based on Sellers’ home blocking
light and preventing natural and scenic open spaces fails for the same reason
it failed under the nuisance claim. Bergers have no right to sunlight and open
space on adjacent properties. Therefore, Sellers have no duty to ensure Bergers
retain unobstructed access to sunlight and open space when constructing a
home on their property.
[¶42] On the drainage issue, Bergers submitted a report in response to Sellers’
motion for summary judgment in which Bergers’ expert opines that they would
need to expend $5,000 to $10,000 to improve the drainage issues, which
Bergers allege are caused by Sellers’ home. This raises a genuine issue of
material fact whether Sellers negligently built their home, preventing proper
drainage and causing damage to Bergers’ property. See Jones v. Boeing Co., 153
N.W.2d 897, 899-900, Syl. 5 (N.D. 1967) (noting “[t]he casting of surface waters
from one’s own land upon the land of another under circumstances where the
resulting damage was foreseen or foreseeable, is tortious and liability results
18
if the interference with the flow of surface waters is found to be unreasonable,”
which is a question of fact). Whether Sellers’ home is the proximate cause of
the alleged drainage damage is also a disputed question of fact. Thus, we
conclude a genuine dispute of material fact exists as to the drainage issue for
which summary judgment was inappropriately granted to Sellers.
[¶43] Bergers assert the Association owed them a duty to not approve a home
construction that would foreseeably injure their interests. We agree the
Association owed Bergers, as members of the Association, reasonable care in
approving construction plans. As with the discussion on the claim for breach of
fiduciary duty, we do not opine on the extent of this relationship at this
summary judgment stage. The fact finder must determine how a reasonable
homeowners’ association would act under the circumstances and whether this
Association exercised reasonable care in performing its duties. Further, a
genuine dispute of material fact exists as to whether the Association’s actions
or omissions proximately caused the alleged harm. Therefore, we conclude
genuine issues of material fact exist on Bergers’ negligence claim against the
Association.
[¶44] Bergers argue Builder owed them a duty to not construct a home in a
manner that injured them. “[O]ne who undertakes to design and construct a
structure has a duty to exercise ordinary care and skill to protect any who
foreseeably, or with reasonable anticipation, may be injured by the failure to
do so.” Dinger ex rel. Dinger v. Strata Corp., 2000 ND 41, ¶ 16, 607 N.W.2d 886.
“Generally, a contractor may be relieved of liability if he followed the
contractee’s plans or specifications which were defective or insufficient, and
the defect or insufficiency caused the damage.” Id. at ¶ 17. “[A] contractor who
follows the owner’s plans and specifications may be liable if they are ‘so
obviously defective and dangerous that no reasonable man would follow them.’”
Id. (quoting W. Page Keeton, Prosser and Keeton on Torts, § 104A, pp. 723-24
(5th ed. 1984)). Bergers do not argue that Builder failed to follow Sellers’ plans
or specifications in constructing their home. Nor do Bergers contend the plans
and specifications were “so obviously defective and dangerous that no
reasonable man would follow them.” Thus, on this record, we conclude the
19
district court did not err in determining as a matter of law that Builder was
not liable to Bergers in its construction of Sellers’ home.
[¶45] Under the general duty of care and the record before us, we conclude the
district court erred in determining as a matter of law that Sellers owe no duty
of care to Bergers regarding alleged drainage damage caused by Sellers’ home.
We further conclude the court erred in determining as a matter of law the
Association owed no duty to Bergers. We conclude genuine disputes of material
fact exist as to whether Sellers and the Association breached a duty owed to
Bergers to abstain from injuring property or infringing upon Bergers’ rights,
and whether a resulting injury was proximately caused by the alleged breach
of the duty. Palmer, 2016 ND 17, ¶ 9 (noting that because a negligence action
involves issues of fact, summary judgment is generally inappropriate). We
reverse the grant of summary judgment dismissing Bergers’ negligence claims
against the Association and against Sellers on the drainage issue. We affirm
the grant of summary judgment dismissing Bergers’ negligence claim against
Builder.
VIII
[¶46] Sellers and Builder argue the district court erred in dismissing their
claims of defamation, interference with contract and business, and negligence
against Bergers and Jeff Carlson. These claims are based upon the
conversations between Darren Berger, Jeff Carlson, and David Rogstad and
the subsequent actions taken by Starion on pausing payments on the
construction loan for one to two weeks and removing Big River Builders from
its “approved builders list.” The relevant statements include: Darren Berger
telling Carlson that he was contemplating commencing a lawsuit against
Sellers and Big River Builders because he believed Sellers’ home was built
beyond the bay setback; Carlson telling Rogstad, a Starion employee, he
believed Sellers’ home was “50, 60 feet past the setback” and a possible lawsuit
was “coming his way”; and Darren Berger telling Rogstad that he believed
Sellers’ home was built beyond the “flood line” and pointing out the stake he
believed marked that line. For the reasons stated below, we affirm the
dismissal of these claims.
20
A
[¶47] Builder argues the district court erred in granting summary judgment
and dismissing its defamation claims against Darren Berger and Carlson.
Defamation consists of slander and libel. N.D.C.C. § 14-02-02. “Slander is a
false and unprivileged publication other than libel.” N.D.C.C. § 14-02-04.
Because we conclude Sellers’ home violates the setback requirement, Darren
Berger’s and Carlson’s statements that Sellers’ home was built beyond the
setback are not false and cannot be defamatory.
B
[¶48] Sellers and Builder argue the district court erred in dismissing their
intentional interference with contract claims against Bergers and Carlson. “To
establish a prima facie case for intentional interference with contract, a
plaintiff must prove (1) a contract existed, (2) the contract was breached, (3)
the defendant instigated the breach, and (4) the defendant instigated the
breach without justification.” Hilton v. N.D. Educ. Ass’n, 2002 ND 209, ¶ 24,
655 N.W.2d 60. Sellers and Big River Builders alleged Berger and Carlson
interfered with the construction contract between Sellers and Builder and the
construction loan agreement between Sellers and Starion. The district court
concluded no evidence was presented showing either of these contracts was
breached. Specifically as to the construction contract, the court concluded that
Big River Builders was paid in full for the construction, the home was
completed by the Fall 2020 Parade of Homes as contracted, and the
subcontractors and suppliers were paid in full without any late payment fees
or interest charges. As to the construction loan agreement, the court noted that
Starion did not pull the loan; rather Sellers elected to obtain a loan with
another bank. Sellers and Builder do not cite any express provision of the
contracts that was breached. Thus, dismissal of these claims was warranted.
C
[¶49] Builder contends Darren Berger’s and Carlson’s statements to Starion
employee Rogstad caused the delays in payments and removal from the
approved builders list, interfering with its business relationships or
21
expectancies. “[T]o prevail on a claim for unlawful interference with business,
a plaintiff must prove the following essential elements: (1) the existence of a
valid business relationship or expectancy; (2) knowledge by the interferer of
the relationship or expectancy; (3) an independently tortious or otherwise
unlawful act of interference by the interferer; (4) proof that the interference
caused the harm sustained; and (5) actual damages to the party whose
relationship or expectancy was disrupted.” Trade ’N Post, L.L.C. v. World Duty
Free Americas, Inc., 2001 ND 116, ¶ 36, 628 N.W.2d 707. We conclude Builder
failed as a matter of law to show Bergers or Carlson committed an independent
tort or otherwise unlawful act of interference.
D
[¶50] Sellers and Builder argue the district court erred in dismissing their
negligence claims against Bergers. They assert Bergers violated their duty
under N.D.C.C. § 9-10-01 to refrain from infringing upon their rights. We
conclude as a matter of law a breach of duty did not occur because Darren
Berger did not make false statements. Accordingly, the negligence claims were
properly dismissed.
IX
[¶51] We have considered the parties’ remaining arguments and conclude they
are either without merit or unnecessary to our decision. We reverse the district
court’s grant of summary judgment on Bergers’ claims against Sellers for
violation of the PUD, breach of restrictive covenants, negligence (drainage),
and private nuisance (setbacks). We remand with instructions to grant Bergers
partial summary judgment on their claims against Sellers for violation of the
PUD and breach of restrictive covenants and for declaratory relief (against
Sellers) as requested in their motion for partial summary judgment. We
reverse the court’s grant of summary judgment on Bergers’ claims against the
Association for breach of fiduciary duty and negligence. We affirm the court’s
grant of summary judgment on all of Bergers’ claims against Builder, namely
the PUD violation, breach of restrictive covenants, and negligence. We affirm
the grant of summary judgment on Bergers’ claims against the Association for
breach of restrictive covenants and private nuisance. We affirm the grant of
22
summary judgment on all of Sellers’ and Builder’s claims. The judgment is
affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
[¶52] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
Bradley A. Cruff, D.J.
[¶53] The Honorable Bradley A. Cruff, District Judge, sitting in place of
Crothers, J., disqualified.
23
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"2",
"3",
"5",
"6",
"7",
"9",
"10"
]
Law
9876596
[SEGMENT 1]
2024 IL App (1st) 230395-U
No. 1-23-0395
Order filed September 16, 2024.
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
) No. 21 CR 14588
MENNARD ALLISON, )
) The Honorable
Defendant-Appellant. ) Michael R. Clancy,
) Judge Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court.
Justices Pucinski and Cobbs concurred in the judgment.
ORDER
¶1 Held: Defendant failed to establish that the aggravated unlawful use of a weapon
(AUUW) statute, on which his conviction rested, was facially unconstitutional or his conviction
void. However, the trial court failed to provide adequate admonishments following defendant’s
negotiated guilty plea. This court remanded the cause for proper admonishments.
¶2 On July 21, 2022, defendant entered into a negotiated guilty plea for aggravated unlawful
use of a weapon (AUUW), count 1, and was sentenced to four years in prison. In this direct
====== End of Part of Court Ruling ====== No. 1-23-0395
appeal, defendant contends the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West
2022)) is facially unconstitutional in violation of the second amendment (U.S. Const., amend II)
and [CITATION], and thus, void. He also contends the trial court failed to issue adequate post-plea admonishments. See Ill. S. Ct.
R. 605(c) (eff. Oct. 1, 2001). We affirm but remand the cause for proper admonishments.
¶3 BACKGROUND
¶4 The facts underlying defendant’s negotiated guilty plea to AUUW, plus video
surveillance, showed defendant stopped his vehicle, exited, and brandished a firearm, then shot
several rounds at the victim as she crossed the street at Chicago and Ridgeway Avenues in
Chicago. He did not then have a concealed carry license or a FOID card.
¶5 After defendant entered into the negotiated guilty plea, the trial court advised defendant
as follows:
“I need to advise you of your appellate rights however before you can appeal within 30
days of today’s date you need to file a written motion asking to withdraw your plea of guilty. In
that motion you must state all the reasons why you are entitled to have your guilty plea
withdrawn. If I were to grant that motion we would set the case down for trial. If I were to deny
the motion, you have 30 days from the date of denial to file a written notice of appeal. Any issue
or claim of error not raised in the original motion will be waived for appellate purposes. If you
are indigent a copy of the transcripts of today’s proceedings will be provided to you free of
charge and you would be provided an attorney to assist you in pursuing your appeal.”
¶6 In response to the court’s query, defendant stated he understood his “appellate rights.”
Defendant did not file a motion to withdraw his guilty plea. Rather, on January 18, 2023,
defendant, pro se, filed a motion for leave to file a late notice of appeal, which this court allowed
No. 1-23-0395
on March 8, 2023. Defendant stated that he did not file a notice of appeal within 30 days of
sentencing because he went to “NRC-Stateville” and then “Dixon” on “level 1 & 2,” and there
was a lockdown due to short-staffing and Covid restrictions, in addition to “medical writs every
week.” He asserted he “could not get a chance to go [to] the law library.” Defendant stated his
appeal had merit because there was a “lack of evidence, no weapon, no GSR-forensic, no victim,
no witness.” Appellate counsel was subsequently appointed. This appeal followed.
¶7 ANALYSIS
¶8 Where, as here, a defendant enters into a negotiated guilty plea, a subsequent motion to
withdraw that guilty plea is a condition precedent to filing an appeal. Ill. S. Ct. R. 604(d) (eff.
July 1, 2017); [CITATION]. Notwithstanding that, our supreme
court has made clear that “[a] defendant may argue that a criminal statute is unconstitutional, and
void ab initio, at any time.” [CITATION]; see also [CITATION] (holding, a void order may be attacked at any time in a court with
jurisdiction, and such challenges are not subject to forfeiture or other procedural bars). As such,
defendant’s guilty plea does not preclude him from raising his first contention, that he was
sentenced under a facially unconstitutional and void statute. [CITATION].
¶9 Legislative enactments enjoy a strong presumption of constitutionality, and the burden
then rests on the defendant to demonstrate the invalidity of a particular statute. [CITATION].
A reviewing court has the duty to construe a statute to uphold its validity whenever reasonably possible. Id. We review the constitutionality of a statute de novo.
Id.
¶ 10 Our review does not extend far, however, because defendant has failed to fulfill his
burden. The AUUW statute criminalizes public gun possession absent a concealed carry license.
No. 1-23-0395
720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2022). In Illinois, a person must be issued a FOID
card (see 430 ILCS 65/2(a) (West 2022)), in order to lawfully possess a gun, and in order to
obtain a concealed carry license (430 ILCS 66/25 (West 2022). Defendant argues this dual
licensing requirement violates his second amendment right to carry a handgun for self-defense
outside the home and is contrary to Bruen because the State cannot demonstrate the AUUW
statute is consistent with our nation’s historical tradition of firearm regulation.
¶ 11 However, Bruen itself essentially condoned the constitutionality of Illinois’ gun
licensing regime. [CITATION] (suggesting that “shall-issue”
licensing regimes, of which Illinois is one, are generally constitutional), [CITATION]
(concurring) (clarifying the court’s decision did not affect “shall-issue” licensing schemes like
those in Illinois and the licensing regimes may continue to be employed); [CITATION] (noting, “Illinois is known as a shall-issue state because the police
must issue a FOID card to any applicant who fulfills the criteria set forth in the statute”); see also
430 ILCS 66/10, 25 (West 2022). Even if the statements in Bruen regarding “shall-issue”
licensing regimes are considered dicta, as defendant claims, dicta in a court of last resort is, at
the very least, dispositive and binding absent a contrary decision. [CITATION] 1 Moreover, in [CITATION] this
court conducted an exhaustive analysis of the matter before concluding that the challenged
section of the AUUW statute is not facially unconstitutional under Bruen. Id. Other decisions of
this court have essentially concluded the same. [CITATION]
The supreme court in [CITATION], recently held:
“When a restraining order contains a finding that an individual poses a credible threat to the physical
safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned
from possessing firearms while the order is in effect. Since the founding, our Nation's firearm laws have
included provisions preventing individuals who threaten physical harm to others from misusing firearms.”
Id. This suggests reasonable regulation of firearm possession is constitutional.
No. 1-23-0395
(holding the FOID Card Act, Concealed Carry Act, and AUUW statute comply with federal law
and are not invalid under Bruen); see also [CITATION].
¶ 12 Defendant has not identified or sufficiently developed an argument to otherwise support
finding Illinois’ licensing scheme unconstitutional. See Bruen, 597 U.S. at 38, n. 9. To the extent
defendant argues the licensing regime in Illinois is subject to undue delay, defendant has no
standing to raise the argument because he does not point to any evidence showing he applied for
a FOID card or Concealed Carry license. See [CITATION] (noting that, to
have standing to bring a constitutional challenge, a person must show himself to be within the
class aggrieved by the alleged unconstitutionality). Regardless, this court recently rejected, out of
hand, similar criticisms of the Illinois licensing regime. See [CITATION]. Defendant’s constitutional argument therefore fails. His conviction is not void.
¶ 13 Defendant next contends the trial court failed to properly admonish him following his
negotiated guilty plea. We repeat that when a defendant enters into a negotiated guilty plea, a
[SEGMENT 2]
subsequent motion to withdraw that guilty plea is a condition precedent to filing an appeal. Ill. S.
Ct. R. 604(d) (eff. July 1, 2017); [CITATION]. As such, Rule
605(c) requires the trial court at sentencing to “advise the defendant substantially” on the
procedures for filing both a motion to withdraw the guilty plea and an appeal, and this court also
may entertain a defendant’s subsequent argument on appeal that the trial court has fallen short in
that regard. Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001); [CITATION] (dubbing this the “admonition exception”). Although a trial court
need not use the exact language of Rule 605(c), it must still convey the substance of the rule.
No. 1-23-0395
[CITATION] (defining substantial compliance as conveying the
rule’s essence); [CITATION]. We review the court’s
compliance with Rule 605(c) de novo. [CITATION].
¶ 14 Defendant now specifically contends the trial court gave incomplete Rule 605(c)
admonitions regarding the consequences of a successful post-plea motion, entirely neglected to
admonish defendant under Rule 605(c)(4), and failed to advise defendant that an attorney and
transcripts would be provided free of charge to aid him in preparing his motion to withdraw his
guilty plea. He asks that we remand the cause for proper admonishments.
¶ 15 Relevant to this case, “at the time of imposing sentence, the trial court shall advise the
defendant substantially as follows *** (3) that if the motion [asking to have the judgment
vacated and for leave to withdraw the plea of guilty] is allowed, the plea of guilty, sentence and
judgment will be vacated and a trial date will be set on the charges to which the plea of guilty
was made; (4) that upon the request of the State any charges that may have been dismissed as a
part of a plea agreement will be reinstated and will also be set for trial; [and] (5) that if the
defendant is indigent, a copy of the transcript of the proceedings at the time of the defendant’s
plea of guilty and sentence will be provided without cost to the defendant and counsel will be
appointed to assist the defendant with the preparation of the motions[.]” Ill. S. Ct. R. 605(c) (eff.
Oct. 1, 2001).
¶ 16 Here, the trial court stated that if it were to grant defendant’s motion to withdraw his
guilty plea, the court would set the case for trial. Contrary to 605(c)(3), the court omitted also
admonishing defendant, as required, “that the plea of guilty, sentence and judgment will be
No. 1-23-0395
vacated.” Ill. S. Ct. 605(c)(3) (eff. Oct. 1, 2001). 2 Indeed, the court also entirely omitted any
mention of 605(c)(4) in that the court did not advise defendant that the dismissed charges in this
case would be reinstated upon acceptance of the withdrawal motion. Last, the court admonished
defendant that if he was indigent, the transcripts of the proceeding would be provided free of
charge and he would be provided an attorney “to assist you in pursuing your appeal,” but
contrary to Rule 605(c)(5), neglected to advise defendant that the free transcripts and attorney
would be provided to assist in the motion to withdraw his guilty plea. Contrary to the State’s
contention otherwise, we agree with defendant that these admonishments were insufficient.
¶ 17 Illinois Supreme Court rules have the force of law, and they are not simply aspirational.
[CITATION]. Moreover,
we may not engraft exceptions or provisions onto a rule that do not exist. [CITATION]. Nor may we interpret a rule in such a way as to render any part of it meaningless
or superfluous. [CITATION]. Admonishments that lack any reference to
certain portions of Rule 605(c) altogether cannot be deemed adequate. [CITATION]; see also [CITATION] (noting, the admonitions must be
given and are insufficient where the trial court omits the rule’s substance).
¶ 18 Here, given that 605(c)(3) requires an admonition that the guilty plea, sentence and
judgment will be vacated, and that a new trial will commence on the charges, the judge simply
admonishing defendant that “a trial will be set” falls short. To hold otherwise would render part
of the Rule meaningless or superfluous, which is not permitted. [CITATION]. We thus agree with defendant’s contention that this omission could have “materially
The State concedes that “[i]t is true that the court did not specify that defendant’s sentence
would be vacated if her were allowed to withdraw his plea.” The State also concedes defendant was not
admonished pursuant to 604(c)(4).
No. 1-23-0395
contributed” to defendant’s failure to file a motion to withdraw his guilty plea because he wasn’t
informed that “a successful postplea motion was the route to having his plea vacated.” Also, the
absence of any admonishment involving 605(c)(4) was clearly inadequate. There was no
“essence” of the rule to conveyed. See [CITATION], ¶ 29 (finding admonishments insufficient where the trial court failed
to inform the defendant of “what he needed to do to challenge his guilty plea”). Thus, not only
was defendant unaware that his guilty plea and sentence would be vacated, but also that he could
face reinstated charges. See Ill. S. Ct. Rs. 605(c)(3), (c)(4) (eff. Oct. 1, 2001); [CITATION]
¶ 19 We further find the deficient admonishment as to defendant’s right to appointed counsel
on his postplea motion, under Rule 605(c)(5), concerning. A defendant is entitled to be informed
of the availability of appointed counsel for postplea proceedings and his right to receive a
transcript of the plea proceedings, because a “criminal defendant’s right to assistance of counsel
is fundamental.” [CITATION]
¶ 20 Contrary to the State’s argument otherwise, [CITATION], ¶¶ 48-51, is
distinguishable. There, although the trial court did not orally inform the defendant that he was
entitled to an attorney’s help with postplea motions, the court nonetheless stated without
qualification that the defendant was entitled to an attorney free of charge, along with transcripts.
In other words, the trial court’s statements did not definitively confine the availability of counsel
to the appeals process alone. Moreover, the supreme court found the written document, which
also was presented to the defendant, contained the complete and clear admonishment, noting:
“While the oral admonishments might have been more general about the right to counsel, the
written admonishment specifically made it clear [the] defendant was entitled to counsel to help
No. 1-23-0395
him prepare the motions.” Id. ¶ 51. On that basis, the supreme court found the defendant was
adequately notified that a court-appointed attorney would be available consistent with 605(c)(5). 3
¶ 21 Here, unlike in [CITATION], the trial court confined the availability of appointed counsel
to the appeals process (stating “If you are indigent a copy of the transcripts of today’s
proceedings will be provided to you free of charge and you would be provided an attorney to
assist you in pursuing your appeal”). See [CITATION], 2024 IL App (1st) 220586, ¶ 9 (finding the
trial court failed to admonish the defendant regarding his right to appointed counsel to vacate his
guilty plea under 605(c)(5), where the court stated, “If you are indigent and cannot afford an
attorney or transcript, both will be provided to you at no cost to help with the appeals process”).
Also, in this case, unlike in [CITATION], there were no written admonishments to clarify the
matter. The record further suggests that defendant lacked a clear understanding that appointed
counsel was available to help in filing a motion to withdraw his guilty plea. As reason for the
delay in challenging his conviction, for example, defendant cited a number of logistical problems
and his lack of access to the law library.
¶ 22 Thus, to the extent the State maintains there was no prejudice resulting from the
inadequate admonishments and suggests any error was harmless, we reject that argument.
Nothing in [CITATION] suggests that a prejudice analysis follows the question of whether a trial
court substantially complied with Rule 605(c). See also [CITATION], 181 Ill. 2d 24, 30
(1998) (essentially rejecting a prejudice analysis as to admonishments); [CITATION], 359 Ill.
App. 3d 863, 866 (2005) (same); but see [CITATION], 344 Ill. App. 3d 558, 563 (2003)
The State maintains the [CITATION] court’s reliance on two prior cases ([CITATION], 342 Ill.
App. 3d 872 (2003) and [CITATION], 221 Ill. 2d 338 (2006)) support an affirmance here. We do not believe
[CITATION]’s citation to those cases can be divorced from its additional reliance on the written
admonishment to support its conclusion of compliance with Rule 605(c)(5). Moreover, in both [CITATION] and
[CITATION], the trial courts similarly made general statements as to the availability of appointed counsel without
confining the matter to appeals only.
[SEGMENT 3]
No. 1-23-0395
(applying a prejudice analysis); cf. J.T., [CITATION] (considering prejudice in the
context of whether to grant supervisory relief for the trial court’s allegedly improper
admonitions). In fact, because a defendant who fails to file a postplea motion under Rule 605(c),
loses his appeal rights completely, and the appellate court is required to dismiss his appeal, a trial
court’s inadequate compliance with 605(c) cannot be harmless error. [CITATION] (noting, a defendant’s “failure to file a
timely Rule 604(d) motion precludes the appellate court from considering the appeal on the
merits” and requires dismissal); see also [CITATION]. This is
because we cannot speculate what defendant would have done had he been given the appropriate
admonishments. See id.
¶ 23 For the reasons stated, the trial court’s deficient admonitions did not put defendant on
notice of the steps needed to preserve an appeal under Rule 604(d). See [CITATION]. Based upon the trial court’s failure to substantially
admonish defendant pursuant to Rule 605(c), we find that defendant’s failure to file a Rule
604(d) motion is excused, and this court must remand the cause to the trial court for strict
compliance with Rule 605(c). [CITATION].
¶ 24 CONCLUSION
¶ 25 For the reasons stated, defendant’s conviction is not void, and we thus affirm the
judgment of the trial court in that regard. However, we remand the cause for further proceedings,
including proper 605(c) admonishments, consistent with this order. See [CITATION].
¶ 26 Affirmed in part; remanded.
2024 IL App (1st) 221031
SIXTH DIVISION
August 30, 2024
No. 1-22-1031
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 18 CR 1248
)
)
ROBERT THOMPSON, ) Honorable
) Maria Kuriakos-Ciesel,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
OPINION
JUSTICE TAILOR delivered the judgment of the court, with opinion.
Justices Hyman and C.A.Walker concurred in the judgment and opinion.
¶1 In January 2018, Robert Thompson, then 18 years old, was charged by indictment with,
inter alia, eight counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6
(West 2018)). Thompson pled guilty on August 16, 2018, to one count alleging that he
knowingly carried a handgun, pistol, or revolver on or about his person, when not on his own
land or in his abode, legal dwelling, or fixed place of business, or on the land or in the legal
dwelling of another person as an invitee with that person’s permission, and he had not been
issued a currently valid firearm owner’s identification (FOID) card at the time of the offense. Id. 1-22-1031
§ 24-1.6(a)(1), (a)(3)(C). The trial court sentenced Thompson to two years’ probation pursuant to
the First Time Weapon Offender Program (730 ILCS 5/5-6-3.6 (West 2018)), which included the
conditions that he not violate the criminal statutes of any jurisdiction, complete drug testing, and
complete 50 hours of community service.
¶2 On December 19, 2018, the State filed a petition for violation of probation (VOP)
alleging that Thompson was arrested for resisting arrest. After several continuances, the State
filed a second VOP petition on July 25, 2020, after Thompson had been arrested and charged
with possession of a stolen motor vehicle (PSMV). Between December 20, 2018, and July 25,
2020, Thompson had completed his community service, graduated from high school, tested
negative for drugs, entered counseling, and been accepted to college. The case was continued
pending the resolution of the new arrests.
¶3 On February 1, 2022, the State informed the court that Thompson had been acquitted of
the resisting arrest charge. Defense counsel requested a conference under Illinois Supreme Court
Rule 402 (eff. July 1, 2012) to resolve the VOP petitions. After the conference, defense counsel
filed a motion asking that Thompson’s probation be terminated satisfactorily, noting that,
pursuant to section 5-6-2(c-1) of the Unified Code of Corrections (730 ILCS 5/5-6-2(c-1) (West
2020)), Thompson should have received a 90-day credit against the term of his probation
because he obtained a high school diploma, which would have resulted in Thompson’s probation
terminating on May 17, 2020. Counsel further argued that pursuant to [CITATION], the trial court could not extend Thompson’s probation beyond its expiration
date without a hearing and a finding of a violation and, because no such hearing occurred
between December 20, 2018, and May 17, 2020, Thompson’s probation was wrongly extended
1-22-1031
and his second arrest for PSMV in July 2020 could not form the basis of a new violation.
¶4 At the hearing on Thompson’s motion on June 14, 2022, the State argued that Thompson
did not receive the 90-day credit because he did not petition to have his probation shortened upon
graduation and the second VOP occurred before the original expiration of the probation period in
August 2020. Defense counsel countered that the 90-day credit automatically applied. The trial
court denied Thompson’s motion, finding that the first VOP tolled the termination date of the
probation and the delay that occurred on the resisting arrest charge was due to the COVID-19
pandemic. In addition, the court found that it could find a VOP occurred even if Thompson was
acquitted of the resisting charge and, therefore, even though Thompson was ultimately acquitted
of that, the VOP based on the resisting charge was still pending and continued to toll the
probation period.
¶5 Defense counsel filed a motion to reconsider. On June 29, 2022, the trial court was
informed that Thompson pled guilty to PSMV and was sentenced to probation. There was a
hearing on the second VOP. The State presented a certificate of conviction as proof of
Thompson’s commission of PSMV. The trial court terminated Thompson’s probation
unsatisfactorily, and judgment was then entered on Thompson’s conviction for AUUW.
¶6 ANALYSIS
¶7 On appeal, Thompson advances a single constitutional claim. Relying on [CITATION], he argues that the AUUW statute (720 ILCS
5/24-1.6(a)(1), (a)(3)(c) (West 2018)), which prohibits the possession of a gun by those 18- to
20-year-olds who have not been issued a FOID card, is facially unconstitutional because it
infringes upon “the Second Amendment right to bear arms of individuals whose ability to obtain
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a FOID card is significantly burdened because of their age.” Thompson focuses on the portion of
the Firearm Owners Identification Card Act (FOID Card Act) that states in relevant part that an
individual 18 to 20 years of age is able to obtain a FOID card when “he or she has the written
consent of his or her parent or legal guardian to possess and acquire firearms and firearm
ammunition.” 430 ILCS 65/4(a)(2)(i) (West 2018). The State responds to Thompson’s facial
challenge by arguing that Thompson misreads both Bruen and the second amendment as
conferring an unqualified entitlement to possess and carry firearms without restriction.
¶8 Before addressing the merits of Thompson’s argument, we must address the State’s
argument that, because Thompson plead guilty in this case, he has waived all nonjurisdictional
defects, even constitutional ones, and his appeal must be dismissed. Once a voluntary plea has
been entered, the plea waives all irregularities or errors, including those of a constitutional
dimension. [CITATION]. However, Thompson cites our
decision in [CITATION] to support his argument that his
guilty plea does not negate his ability to raise a constitutional challenge to the AUUW statute.
¶9 In [CITATION], this court, relying on the United States Supreme Court’s decision in Class v.
United States, 583 U.S. 174 (2018), held that an as-applied constitutional challenge could be
raised even after a negotiated guilty plea. See [CITATION]. Therein, we held that, where a defendant’s constitutional claim does not contradict the terms of
his indictment or his plea agreement and does not focus upon case-related constitutional defects
that occurred prior to the entry of his guilty plea, the defendant does not waive his constitutional
claim by voluntarily pleading guilty. Id. ¶ 21. In so holding, we noted that in Class the United
States Supreme Court looked back at its holdings on the nature of guilty pleas, which
[SEGMENT 4]
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“ ‘stretche[d] back nearly 150 years,’ ” and found that they reflected, in broad outline, an
understanding that “a guilty plea does not bar a claim on appeal ‘where on the face of the record
the court had no power to enter the conviction or impose the sentence.’ ” (Internal quotation
marks omitted.) [CITATION]. ¶ 20 (quoting [CITATION]). Hence, in [CITATION] we held that,
because the defendant’s as-applied vagueness challenge to the armed habitual criminal statute
under which he was prosecuted did not contradict the terms of his indictment and plea agreement
and did not focus upon any case-related defects that occurred prior to the entry of his guilty plea,
but rather focused on the State’s power to prosecute his admitted conduct, his voluntary plea did
not bar his appeal. [CITATION]. ¶ 21.
¶ 10 Thompson presents a facial challenge to the AUUW statute, not an as-applied challenge
as the defendant in [CITATION] made. Although facial and as-applied constitutional challenges are
both intended to address constitutional infirmities, they are not interchangeable. See [CITATION]. An as-applied challenge requires a
showing that the statute violates the constitution as it applies to the facts and circumstances of
the challenging party. [CITATION]. In contrast, a facial
challenge requires a showing that the statute is unconstitutional under any set of facts; i.e., the
specific facts in the challenging party’s case are irrelevant. [CITATION]. A defendant may raise a facial
challenge to the statute under which he has been convicted at any time, even after a guilty plea.
See [CITATION].
Therefore, we will consider Thompson’s constitutional claim on the merits.
¶ 11 The second amendment states: “A well regulated Militia, being necessary to the security
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of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.
Const., amend. II. “A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid.” [CITATION],
¶ 10. “Statutes are presumed constitutional, and the party challenging the constitutionality of a
statute has the burden of clearly establishing its invalidity. A court must construe a statute so as
to uphold its constitutionality if reasonably possible.” [CITATION]. We
review de novo whether a statute is facially unconstitutional. [CITATION], ¶ 9. As
the United States Supreme Court recently confirmed, a facial attack on the constitutionality of a
statute is the “ ‘most difficult challenge to mount successfully.’ ” [CITATION] (quoting [CITATION]).
¶ 12 Thompson was convicted of possessing a gun without having been issued a FOID card.
Section 24-1.6(a)(1), (a)(3)(C) of the Code, which contains the FOID card requirement, states:
“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode,
legal dwelling, or fixed place of business, *** any pistol, revolver, stun gun or
taser or other firearm; [and]
***
(3) One of the following factors is present:
***
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(C) the person possessing the firearm has not been issued a
currently valid Firearm Owner’s Identification Card[.]” 720 ILCS 5/24-
.6(a)(1), (a)(3)(C) (West 2018).
¶ 13 The FOID Card Act, which establishes requirements for obtaining a FOID card, was
enacted in 1968 to “identify[ ] persons who are not qualified to acquire or possess firearms,
firearm ammunition, stun guns, and tasers.” 430 ILCS 65/1 (West 2018). Section 4 of the FOID
Card Act states that an applicant for a FOID card must, among other requirements, “[s]ubmit
evidence to the Department of State Police[1] that”:
“He or she is 21 years of age or over, or if he or she is under 21 years of age that he or
she has the written consent of his or her parent or legal guardian to possess and acquire
firearms and firearm ammunition and that he or she has never been convicted of a
misdemeanor other than a traffic offense or adjudged delinquent, provided, however, that
such parent or legal guardian is not an individual prohibited from having a Firearm
Owner’s Identification Card and files an affidavit with the Department as prescribed by
the Department stating that he or she is not an individual prohibited from having a
Card[.]” Id. § 4(a)(2)(i).
“[E]very applicant found qualified *** shall be entitled to a [FOID] Card,” and all applications
shall be approved or denied “within 30 days from the date they are received.” Id. § 5(a).
¶ 14 Prior to [CITATION], 554 U.S. 570 (2008), dictated our analysis
of second amendment issues. In [CITATION], the United States Supreme Court confirmed that the right
During the time that Thompson’s case has been pending, the Department of State Police has been
officially renamed the Illinois State Police, and the FOID Card Act now reflects that name. Pub. Act 102-538 (eff.
Aug. 20, 2021) (amending 20 ILCS 5/5-15); Pub. Act 102-237 (eff. Jan. 1, 2022) (amending 430 ILCS 65/4).
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to keep and bear arms was subject to long-standing prohibitions on the possession of firearms by
felons and the mentally ill, to laws forbidding the carrying of firearms in sensitive places like
schools and government buildings, and to laws imposing conditions and qualifications on the
commercial sale of firearms. Id. at 626-27.
¶ 15 In upholding a law-abiding citizen’s right to possess an operable handgun “in defense of
hearth and home,” the [CITATION] Court, using a two-step test that “combine[d] history with means-
end scrutiny” ([CITATION]), stated that the second amendment’s guarantee of an
individual right to possess and carry weapons in cases of confrontation, like the first
amendment’s right of free speech, was not unlimited. [CITATION]. The
[CITATION] Court did “not read the Second Amendment to protect the right of citizens to carry arms
for any sort of confrontation” and found that the right to keep and bear arms was not “a right to
keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
(Emphasis omitted.) Id. at 595, 626.
¶ 16 Roughly two years later in [CITATION], the
Court extended the second amendment’s individual right to keep and bear arms to the states
under the fourteenth amendment. In so doing, the Court reiterated its central holding in [CITATION]
“that the Second Amendment protects the right to possess a handgun in the home for the purpose
of self-defense.” Id. In addition, the Court reiterated that the second amendment right was far
from absolute and noted that the doctrine of incorporation “does not imperil every law regulating
firearms.” Id. at 786.
¶ 17 After [CITATION] and [CITATION], Illinois courts applied a two-part approach when analyzing
the constitutionality of a restriction on the second amendment right to bear arms. [CITATION]
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County of Cook, [CITATION], ¶ 41. Under this approach, the court first conducted a threshold
inquiry into whether the restricted activity is protected by the second amendment. This requires a
textual and historical analysis to determine whether the challenged law imposed a burden on
conduct that was understood to be within the scope of the second amendment’s protection at the
time of ratification. Id. The regulated activity is categorically unprotected if the challenged law
applies to conduct falling outside the scope of the second amendment right. Id. However, “if the
historical evidence is inconclusive or suggests that the regulated activity is not categorically
unprotected,” then the court, applying the appropriate level of means-ends scrutiny, conducts a
second inquiry into the strength of the government’s justification for restricting or regulating the
exercise of second amendment rights. (Internal quotation marks omitted.) Id. ¶ 42; see [CITATION], 701-04 (7th Cir. 2011).
¶ 18 Two years ago, in Bruen, [CITATION], the United States Supreme Court decided a
challenge to a New York licensing regime that regulated gun possession and carry. Under New
York’s licensing requirements, individuals who wanted to possess a firearm at home were
required to convince a licensing officer that they were of good moral character and did not have
a history of crime or mental disease and that no good cause for denial existed. Id. at 11.
Conversely, individuals who wanted to carry a firearm outside of their home had to show “proper
cause” to be issued a license. (Internal quotation marks omitted.) Id. at 12. This proper cause
[SEGMENT 5]
requirement meant that people had to “demonstrate a special need for self-protection
distinguishable from that of the general community.” (Internal quotation marks omitted.) Id.
¶ 19 In analyzing the question before it, the Court announced a new framework for evaluating
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the constitutionality of firearm regulations. [CITATION]. The Court found that the two-step
approach used since Heller was “one step too many” and condemned the strict scrutiny analysis
in the second amendment context, opting instead to limit the analysis to “plain text” and history.
[CITATION]. Under Bruen’s new framework, courts first need to determine whether “the
Second Amendment’s plain text covers an individual’s conduct.” [CITATION]. If it does, then the
Constitution “presumptively protects that conduct,” and the government “must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm
regulation.” [CITATION]. “Only then may a court conclude that the individual’s conduct falls outside the
Second Amendment’s unqualified command.” (Internal quotation marks omitted.). [CITATION].
Applying this new standard to New York’s “proper cause” law, the Court first found that, under
the plain text of the second amendment, the individual right to bear arms extended outside of the
home and, therefore, the regulated activity was presumptively permitted. [CITATION]. The Court
then looked to whether the government could prove that the regulation aligned with our nation’s
history of firearm regulation at the time the second amendment was enacted. [CITATION].
Finding that the New York law could not be squared with history in that the government failed to
establish “a tradition of broadly prohibiting the public carry of commonly used firearms for self-
defense” and failed to identify “any such historical tradition limiting public carry only to those
law-abiding citizens who demonstrate a special need for self-defense,” the Court concluded that
the law violated the second and fourteenth amendments. [CITATION]; see [CITATION].
¶ 20 In so holding, the Court specifically differentiated between may-issue licensing regimes,
where “authorities have discretion to deny concealed-carry licenses even when the applicant
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satisfies the statutory criteria,” and shall-issue licensing regimes, where “authorities must issue
concealed-carry licenses whenever applicants satisfy certain threshold requirements, without
granting licensing officials discretion to deny licenses based on a perceived lack of need or
suitability.” [CITATION]. The Court held the New York licensing regime in question
was an unconstitutional may-issue regime, but it cautioned its holding should not be
misconstrued as finding existing shall-issue regimes, including Illinois’s, unconstitutional:
“To be clear, nothing in our analysis should be interpreted to suggest the
unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a
general desire for self-defense is sufficient to obtain a [permit].’ [CITATION.] Because these
licensing regimes do not require applicants to show an atypical need for armed self-
defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from
exercising their Second Amendment right to public carry. [CITATION.] Rather, it appears
that these shall-issue regimes, which often require applicants to undergo a background
check or pass a firearms safety course, are designed to ensure only that those bearing
arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ [CITATION.]” [CITATION.]
¶ 21 Recently, in [CITATION], the Court provided some clarity on
the [CITATION] test. [CITATION] was indicted for possessing a firearm while subject to a domestic violence
restraining order in violation of 18 U.S.C. § 922(g)(8) (2018). He argued that section 922(g)(8)
violated on its face the second amendment right to keep and bear arms. Applying [CITATION], the
Court rejected [CITATION]'s facial challenge to section 922(g)(8), finding that “[a]n individual found
by a court to pose a credible threat to the physical safety of another may be temporarily disarmed
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consistent with the Second Amendment.” [CITATION]. The court
further found that section 922(g)(8) did not broadly restrict arms use by the general public,
unlike the regulation in [CITATION], and only restricted firearm possession for a limited duration. [CITATION].
¶ 22 The [CITATION] Court clarified the test it set out in [CITATION]. The Court explained that, even if a
law regulates the possession of firearms for a permissible reason, the law may nevertheless
violate the second amendment if it regulates arms bearing “to an extent beyond what was done at
the founding.” [CITATION]. At the same time, the court explained that a
challenged regulation need not be a “ ‘historical twin’ ” to its precursors but must only be
considered “ ‘analogous enough to pass constitutional muster.’ ” [CITATION]
(quoting [CITATION]). The law need not be a “ ‘dead ringer.’ ” [CITATION]
(quoting [CITATION]). Stated differently, the Court’s recent second amendment
precedents “were not meant to suggest a law trapped in amber.” [CITATION] (“[T]he Second Amendment permits more than just those regulations identical to ones that could
be found in 1791.”).
¶ 23 We need not go through the exercise of applying the test announced in [CITATION] and
clarified in [CITATION] here because Illinois’s FOID Card Act establishes an objective shall-issue
licensing regime, which [CITATION] recognized was not unconstitutional. See [CITATION]. The [CITATION] Court explicitly stated, “Going forward, therefore, the 43 States that employ
objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do
so.” [CITATION] (Kavanaugh, J., concurring, joined by Roberts, C.J.).
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¶ 24 In Illinois, individuals between the ages of 18-20 are not categorically banned from
obtaining a FOID card. Rather, the Illinois State Police shall issue a FOID card when an
individual who is 18 to 20 years of age establishes
“that he or she has the written consent of his or her parent or legal guardian to possess
and acquire firearms and firearm ammunition and that he or she has never been convicted
of a misdemeanor other than a traffic offense or adjudged delinquent, provided, however,
that such parent or legal guardian is not an individual prohibited from having a Firearm
Owner’s Identification Card and files an affidavit with the Department as prescribed by
the Department stating that he or she is not an individual prohibited from having a
Card[.]” 430 ILCS 65/4(a)(2)(i) (West 2018).
¶ 25 In [CITATION], the defendant sought reversal of
his AUUW conviction premised on lack of a FOID Card, arguing that his conviction could not
stand under [CITATION]. We rejected Gunn’s challenge based on [CITATION] distinction between “shall-
issue” and “may-issue” licensing regimes. Id. ¶ 19 (citing [CITATION], 597 U.S. at 38 n.9). We stated,
“[t]here is no need for us to engage in a historical analysis of firearm regulation when the
Supreme Court has already done so and explicitly sanctioned the use of background checks.” Id.
As we recognized in [CITATION] unequivocally left intact a state’s ability to impose licensing
regimes for the possession and public carry of firearms and to criminalize such acts when done
without a license.
¶ 26 The requirement placed on 18- to 20-year-olds to obtain parental consent under the FOID
Card Act is similar to requirements that an applicant complete a firearm safety course and pass a
background check, which [CITATION] found were permissible restrictions. See [CITATION], 597 U.S. at 38
====== End of Part of a Court Ruling ====== 1-22-1031
n.9; [CITATION], ¶ 19. Like a firearm safety course and background check,
parental consent serves to help ensure that FOID card applicants in that emerging adult age
group are mature and responsible enough to possess and use a firearm. See [CITATION],
(“The parent or guardian signature provision provides for an
individualized assessment of the applicant’s fitness for possession of a firearm by a person likely
to be in the best position to make such an evaluation.”). Unlike the may-issue licensing statute at
issue in Bruen, here the Illinois State Police are not empowered to deny a FOID card on a
discretionary “perceived lack of need or suitability.” [CITATION].
¶ 27 Moreover, the “absence of a parent or guardian signature is not a ‘veto’ on the ability of a
person between 18 and 21 to get a FOID card in Illinois.” [CITATION]. Rather, an
18- to 20-year-old who does not have parental consent may petition the Firearm Owner’s
Identification Card Review Board or the circuit court for relief, and upon a sufficient showing
regarding the applicant’s criminal record, lack of dangerousness, and the public interest, he may
[SEGMENT 6]
be granted a FOID card. 2 430 ILCS 65/10(c) (West 2022). And administrative decisions of the
Firearm Owner’s Identification Card Review Board are subject to judicial review. Id. § 11(a).
¶ 28 Accordingly, [CITATION]’s validation of the Illinois FOID Card Act’s objective, shall-issue
licensing regime is, standing alone, a sufficient basis on which to reject Thompson’s facial
challenge to the AUUW statute. See [CITATION]’s holding is
inapplicable to Illinois’s FOID Card Act because Illinois is a shall-issue state); [CITATION]
At the time of Thompson’s indictment, he would have had to petition the Director of State Police or the
circuit court for relief from the parental consent requirement. The subsequent creation of the Firearm Owner’s
Identification Card Review Board (see Pub. Act 102-237 (eff. Jan. 1, 2022) (amending 430 ILCS 65/10)) does not
affect our analysis on this issue.
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Thompson, [CITATION], ¶¶ 51-60) (rejecting argument that the AUUW statute
is facially unconstitutional under the second amendment, without engaging in a fulsome second
amendment analysis, after finding that Bruen explicitly held that Illinois’s concealed carry
licensing statute comports with the second and fourteenth Amendments); [CITATION], ¶ 41 (Illinois’s licensing regime has a shall-issue framework that was
endorsed by Bruen); [CITATION], ¶ 61 (Illinois is a shall-issue
state and therefore Illinois’s FOID Card Act and Firearm Concealed Carry Act are not facially
unconstitutional under Bruen), pet. for leave to appeal pending, No. 130708 (filed May 22,
2024). Accordingly, we reject Thompson’s facial challenge to the AUUW statute as it relates to
the constitutionality of the parental consent requirement of the FOID Card Act for those between
the ages of 18 and 20. Contrary to Thompson’s argument, Bruen’s distinguishing language is not
mere dicta. Rather, the Bruen Court was clear and precise in its reasoning to specifically exclude
objective, shall-issue statutory licensing regimes from its decision.
¶ 29 Even if Bruen’s distinguishing language is dicta, the parental consent requirement
imposed on 18- to 20-year-olds to obtain a FOID card does not violate the second amendment
under the Bruen framework. For review, under Bruen’s new framework, courts determine
whether “the Second Amendment’s plain text covers an individual’s conduct.” Bruen, 597 U.S.
at 24. If it does, the Constitution “presumptively protects that conduct,” and the government
“must then justify its regulation by demonstrating that it is consistent with the Nation’s historical
tradition of firearm regulation.” Id. In its most recent second amendment decision, the United
States Supreme Court’s analysis was limited to the second Bruen step, presumably because the
parties did not dispute Rahimi was covered by the plain text of the second amendment. See
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[CITATION], 144 S. Ct. 1889.
¶ 30 Thompson argues that under the first part of the Bruen framework, the plain text of the
second amendment covers his possession of a firearm. He contends that, when a constitutional
challenge is rooted in an individual’s status, such as an 18- to 20-year-old individual, the
question we must answer is whether the individual qualifies as among the “people” who may
enjoy “the right of the people to keep and bear Arms.” U.S. Const., amend. II; see, e.g., [CITATION] (“[o]rdinary, law-abiding, adult citizens that are 18
to 20-year-olds are members of the people” for second amendment purposes). Thompson also
argues that, under the second part of the Bruen framework, the State cannot show that the
regulation is consistent with the nation’s history and tradition of firearm regulation.
¶ 31 We assume, as we did in [CITATION] and [CITATION], that the possession of a firearm outside the home
by persons 18 to 20 years old is covered by the second amendment’s plain text for the sole
purpose of reaching Thompson’s second argument under Bruen. See [CITATION]
(protections of the second amendment extend to “ordinary, law-abiding, adult citizens”); [CITATION]. We begin our analysis of Thompson’s argument that the State cannot show that
an age-based parental consent regulation is consistent with the nation’s history and tradition of
firearm regulation with a review of Illinois Supreme Court cases addressing age-based
restrictions under the second amendment.
¶ 32 Our supreme court has repeatedly rejected challenges to statutes that prohibit firearm
possession based on age. In [CITATION], the defendant argued
that the section in the unlawful possession of a firearm statute that barred persons under the age
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of 18 from possessing any firearm which may be concealed upon the person violated the second
amendment because, “at the time the second amendment was drafted and ratified, the right to
keep and bear arms extended to persons 16 and 17 years of age.” Our supreme court rejected the
defendant’s argument, reasoning that after Heller several courts undertook a historical
examination of laws prohibiting the possession of firearms by minors and concluded that “the
possession of handguns by minors is conduct that falls outside the scope of the second
amendment’s protection.” [CITATION] ¶¶ 26-27. The [CITATION] court expounded: “these cases explain that,
although many colonies permitted or even required minors to own and possess firearms for
purposes of militia service, nothing like a right for minors to own and possess firearms has
existed at any time in this nation’s history,” and “laws banning the juvenile possession of
firearms have been commonplace for almost 150 years and both reflect and comport with a
‘longstanding practice of prohibiting certain classes of individuals from possessing firearms—
those whose possession poses a particular danger to the public.’ ” (Emphases omitted.) [CITATION] ¶ 27
(quoting [CITATION]). The court found no need to
repeat the historical evidence set forth in these decisions and found it only necessary to “express
our agreement with the obvious and undeniable conclusion that the possession of handguns by
minors is conduct that falls outside the scope of the second amendment’s protection.” [CITATION]
¶ 33 Two years later, our supreme court found sufficient historical precedent to allow
meaningful firearm regulation for 18- to 20-year-olds. In [CITATION],
¶ 33, the defendant argued that his AUUW convictions under the “FOID card” subsections,
(a)(1), (a)(3)(C), the same subsections Thompson challenges here, “unconstitutionally disarm[ed]
young adults who are 18 to 20 years old in violation of the second amendment.” Our supreme
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court found “the FOID card requirement of subsection (a)(3)(C) is consistent with [the Illinois Supreme Court’s] recognition that the second amendment right to possess firearms is still subject to meaningful regulation.” (Internal quotation marks omitted.) Id. ¶ 36. Accordingly, the court found that subsections (a)(1), (a)(3)(C) of the AUUW statute did not violate the second amendment.
¶ 34 Shortly thereafter, in [CITATION], our supreme court also rejected the argument that subsection (a)(1), (a)(3)(I) of the AUUW statute, the subsection of the statute prohibiting persons under the age of 21 from possessing handguns who are not engaged in lawful hunting activities, violated the second amendment. Referencing its conclusion in [CITATION] that “age based restrictions on the right to keep and bears arms are historically rooted,” our supreme court explained that those restrictions also applied “to those persons under 21 years of age.” Id. ¶ 25. The court further stated that it had previously “cited with approval several cases finding it evident from a review of the relevant historical record that age based regulations on minors’ access to firearms for the purpose of ensuring public safety were commonplace and persisted well beyond the Founding Era.” Id. ¶ 24 (citing [CITATION], ¶ 27).
¶ 35 Although these Illinois Supreme Court decisions were issued before Bruen and do not follow the exact Bruen framework, this court has nevertheless concluded that the reasoning in these cases “is consistent with the ‘plain text’ and historical analysis that Bruen requires.” [CITATION] (finding that in [CITATION], and [CITATION], our supreme court held that there is sufficient historical precedent to establish that those under 21 years of age are outside the scope of the second amendment); [CITATION] (“although our supreme court’s decisions were issued
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before Bruen, the court in these cases did not apply the means-end scrutiny that Bruen rejected,”
and their reasoning is consistent with the Bruen framework); [CITATION]; ¶¶ 9, 16 (the laws challenged, including a subsection of the AUUW statute, “have
never been justified by application of the means-end scrutiny that Bruen eliminated,” and
recognizing that our supreme court has held that the challenged subsections were “firmly
[SEGMENT 7]
justified by text and historical tradition”); [CITATION], ¶¶ 31, 34
(finding that, even if “a minor’s right to keep and bear arms is covered by the second
amendment’s plain text, our supreme court has already answered the second step” of the Bruen
framework, noting that the court “explicitly addressed the historical roots of age-based
restrictions on the right to keep and bear arms” and “determined that age-based restrictions are
historically rooted in this nation’s traditions”).
¶ 36 We return to our historic tradition. The requirement of parental consent for a FOID card
for 18- to 20-year-olds is consistent with our historic tradition of parental control over their
minor children. See Saul Cornell, “Infants” and Arms Bearing in the Era of the Second
Amendment: Making Sense of the Historical Record, 40 Yale L. & Pol’y Rev. Inter Alia 1
(2021). Those between the ages of 18 and 20 were considered “minors” or “infants” in the eyes
of the law from the time of the nation’s founding through the latter half of the twentieth century.
Id. at 2. Individuals under the age of majority, 21, were entirely subsumed under the authority of
their parents, usually the father, or legal guardian. Id. at 8. It was well understood that minors or
infants had few legal rights without parental approval. See id. at 10-11 (citing 1 Zephaniah Swift,
A System of the Laws of the State of Connecticut 213 (John Byrne ed., 1795) (“Persons within
the age of twenty-one, are, in the language of the law denominated infants, but in common
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speech, minors.”); 2 James Kent, Commentaries on American Law 191 (O. Halsted ed., 1827)
(“The necessity of guardians results from the inability of infants to take care of themselves; and
this inability continues, in contemplation of law, until the infant has attained the age of twenty-
one years.”); 1 John Bouvier, Institutes of American Law 148 (Robert E. Peterson ed., 1851)
(“The rule that a man attains his majority at the age twenty-one years accomplished, is perhaps
universal in the United States. At this period every man is in the full enjoyment of his civil and
political rights ***.”)).
¶ 37 Thus, many “militia statutes recognized that minors were not responsible for procuring
their own arms, so the statutes required parents or guardians to provide firearms to militia
members under the age of twenty-one who were in their care.” Id. at 15; see 1776 N.H. Laws
Sess. 4, ch. 3, § 6, reprinted in 4 Albert Stillman Batchellor, Laws of New Hampshire 39, 40
(Musgrove Printing House 1916) (“An Act for forming and regulating the Militia within the State
of New Hampshire in New England,” providing that “each and every Officer and private Soldier
of said Militia, not under the controul of Parents, Masters, or Guardians, And being of sufficient
Ability therefor, in the judgment of the Selectmen of the Town wherein he has his usual place of
Abode, shall equip himself, and be constantly provided with a good Fire Arm”); 3 Del. Laws § 7
(1785) (“An Act for establishing a Militia,” providing that “every apprentice, or other person of
the age of eighteen and under twenty-one years, who hath an estate of the value of eighty
pounds, or whose parent shall pay six pounds annually towards the public taxes, shall by his
parent or guardian respectively be provided with a musket or firelock”); 1792 N.H. Laws Sess. 2,
ch. 33, reprinted in 6 Albert Stillman Batchellor, Laws of New Hampshire 84, 89 (Evans Printing
Co. 1904) (“An Act for forming and regulating the Militia within this State, and for repealing all
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'people-v-gunn', which should be replaced with `[CITATION]`. 1-22-1031
the laws heretofore made for that purpose,” providing “that such of the infantry as are under the
care of parents, Masters or Guardians, shall be furnished by them with such Arms and
Accoutrements”); [CITATION] (“An act for regulating and
governing the militia of the Commonwealth of Massachusetts,” providing that “all Parents,
Masters and Guardians shall furnish those of the said Militia who shall be under their care and
command, with the Arms and Equipments aforementioned”); [CITATION] (“An Act, for Regulating and Governing the militia of This State,” providing that
“all parents, masters or guardians, shall furnish those of the said militia who shall be under their
care and command, with the arms and equipments above mentioned”); [CITATION] (“An Act to revise the Militia Laws of this State, relative to the Infantry,”
providing that “all parents, masters or guardians shall furnish those of the militia who shall be
under their care or command with their arms and equipments above mentioned”); [CITATION] (“An Act for regulating, governing, and training the Militia of this
Commonwealth,” providing that “all parents, masters or guardians, shall furnish all minors
enrolled in the militia, who shall be under their care respectively with the arms and equipments,
required by this act”); [CITATION] (“An Act for forming,
arranging and regulating the Militia,” providing that “all parents, masters and guardians shall
furnish all minors enrolled in the militia, who shall be under their care respectively with the arms
and equipments required by this act”); [CITATION] (“An Act to
organize, govern and discipline the Militia of this State,” providing that “all parents, masters or
1-22-1031
guardians, shall furnish all minors enrolled in the militia, who shall be under their care
respectively, with the arms, and equipments, required by this Act”); 1825 Mo. Laws 533 (ch. I,
§ 24) (“An act to organize, govern and discipline the Militia,” providing that “all parents, masters
and guardians, shall furnish all minors, enrolled in the militia, who shall be under their care,
respectively, with the arms and equipments required by this act”).
¶ 38 Moreover, the nation’s earliest colleges and universities, such as Yale College, the
University of Georgia, the University of North Carolina, and the University of Virginia, forbade
their students from possessing guns. Cornell, supra, at 13-14. In short, at the founding, “access
to, and the ability to keep or bear, weapons occurred in supervised situations where minors were
under the direction of those who enjoyed legal authority over them: fathers, guardians,
constables, justices of the peace, or militia officers.” Id. at 14. If a minor wished to get out from
under the control of a parent, he could find no relief in the courts because a minor in the
founding era had no legal standing to assert a claim to vindicate his rights, including second
amendment-type claims. Id. at 7. Therefore, today’s requirement that an 18- to 20-year-old
obtain parental consent for a FOID card aligns closely with our historic tradition that an 18- to
20-year-old obtain parental approval in almost every aspect of life.
¶ 39 Thompson’s reliance on [CITATION] is unavailing. In [CITATION], a group of 18- to
20-year-olds advanced a facial challenge to Minnesota’s Personal Protection Act of 2003 (Minn.
Stat. Ann. § 624.714(2)(b)(2) (West 2022)) that criminalizes carrying handguns in a public place
without a license. In order to obtain a license, Minnesota law requires the applicant to be at least
21 years old. [CITATION] The plaintiffs argued the law was unconstitutional under
the second and fourteenth amendments. Id. Applying the Bruen test, the Eighth Circuit Court of
1-22-1031
Appeals found the statute unconstitutional. The court first found that 18- to 20-year-olds are part
of the people with a right to keep and bear arms under the second amendment and, therefore, that
conduct is presumptively protected. [CITATION]. After analyzing the nation’s historical tradition of
firearm regulation, the court then went on to find that the government had not met its burden to
“proffer sufficient evidence to rebut the presumption that 18 to 20-year-olds seeking to carry
handguns in public for self-defense are protected by the right to keep and bear arms.” [CITATION] is distinguishable from the instant case in that it involved Minnesota’s categorical
ban on those under the age of 21 from carrying handguns in public. There is no such categorical
ban here. Rather, Thompson is subject to an age-based parental consent restriction. As we
discussed, 18- to 20- years olds did not enjoy unfettered second amendment protections at the
nation’s founding because they were entirely subjected to the authority and control of their
parents or guardians.
[SEGMENT 8]
¶ 41 We find that, because 18- to 20-year-olds were entirely subsumed under the control and
authority of their parents at the founding, an age-based parental consent restriction on a minor’s
access to firearms, such as the FOID Card Act’s requirement that they obtain their parent’s
consent to obtain a FOID card, cannot be said to violate the second amendment under [CITATION].
Accordingly, we reject Thompson’s facial challenge to the AUUW statute.
¶ 42 CONCLUSION
¶ 43 We conclude that Thompson’s facial challenge to section 24-1.6(a)(1), (a)(3)(c), of the
AUUW statute fails. First, [CITATION] expressly approved objective, shall-issue firearms licensing
regimes such as the one here. Thus, we need not engage in a fulsome second amendment
analysis. Second, even applying the second amendment analysis outlined in [CITATION], our supreme
1-22-1031
court has repeatedly rejected second amendment challenges to statutes that prohibit firearm
possession based on age. Further, historical precedents align with our present age-based parental
consent requirements for minors, who at the founding were considered to be those under the age
of 21. After all, parents know their children the best—a truism that has remained unchanged
since the nation’s founding—and are most suited to judge whether they are responsible and
mature enough to possess and use a firearm. See [CITATION] (“The parent or
guardian signature provision provides for an individualized assessment of the applicant’s fitness
for possession of a firearm by a person likely to be in the best position to make such an
evaluation.”). Therefore, we reject Thompson’s second amendment challenge to the AUUW
statute. The judgment of the circuit court is affirmed.
¶ 44 Affirmed.
1-22-1031
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR-
; the Hon. Maria Kuriakos-Ciesel, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Manuela Hernandez, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Jessica R. Ball, and Whitney Bond, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
2024 IL App (1st) 231500-U
No. 1-23-1500
Order filed August 22, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 2618
)
TEVIN NELSON, ) Honorable
) John F. Lyke Jr.,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: We affirm the denial of defendant’s petition for relief from judgment where he has
not established that the subsection of the aggravated unlawful use of a weapon
statute under which he was convicted is facially unconstitutional.
¶2 Defendant Tevin Nelson appeals from the circuit court’s order denying his petition for
relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1401 (West 2020)). He argues that his conviction for aggravated unlawful use of a
weapon (AUUW) should be vacated because the subsection of the statute under which he was
convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020)) is facially unconstitutional under No. 1-23-1500
the second amendment to the United States Constitution (U.S. Const., amend. II). For the following
reasons, we affirm.
¶3 On August 22, 2022, defendant entered a negotiated guilty plea to one count of AUUW in
exchange for six years’ imprisonment and the nolle prosequi of other charges. He did not move to
withdraw his plea or file a direct appeal.
¶4 On February 8, 2023, defendant filed a petition for relief from judgment pursuant to section
2-1401 of the Code. He argued that the subsection of the AUUW statute under which he was
convicted was unconstitutional and his conviction should be vacated pursuant to [CITATION],
and its progeny. On May 8, 2023, the court denied defendant’s petition, noting
that the subsection of the AUUW statute under which he was convicted had not been found
unconstitutional.
¶5 On June 24, 2023, defendant mailed to this court a motion for leave to file a late notice of
appeal, which we allowed.
¶6 On appeal, defendant argues that, pursuant to the United States Supreme Court’s decision
in [CITATION], the subsection of the
AUUW statute under which he was convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020))
violates the second amendment.
¶7 Section 2-1401 of the Code provides a statutory procedure by which final judgments may
be vacated more than 30 days after entry. 735 ILCS 5/2-1401(a) (West 2022); [CITATION],
We review de novo a denial of a section 2-1401 petition on legal grounds.
[CITATION]. We also review de novo the constitutionality of a statute,
No. 1-23-1500
a question of law. [CITATION], ¶ 9 (citing [CITATION]).
¶8 Section 24-1.6(a)(1), (a)(3)(A-5) of the Criminal Code of 2012 provides:
“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode,
legal dwelling, or fixed place of business, or on the land or in the legal dwelling of
another person as an invitee with that person’s permission, any pistol, revolver, stun
gun or taser or other firearm; [and]
***
(3) One of the following factors is present:
***
(A-5) the pistol, revolver, or handgun possessed was uncased,
loaded, and immediately accessible at the time of the offense and the person
possessing the pistol, revolver, or handgun has not been issued a currently
valid license under the Firearm Concealed Carry Act[.]” 720 ILCS 5/24-
.6(a)(1), (a)(3)(A-5) (West 2020).
¶9 Defendant claims that section 24-1.6(a)(1), (a)(3)(A-5) violates the second amendment on
its face. Facial challenges are “the most difficult challenge to mount.” [CITATION], ¶ 25. Statutes are presumed constitutional, and to rebut that presumption and show a statute is
facially unconstitutional, a party must establish that there are no circumstances under which the
====== End of Document ====== No. 1-23-1500
statute would be valid. [CITATION]. “If it is reasonably possible to
construe the statute in a way that preserves its constitutionality, we must do so.” Id. A defendant
may challenge the constitutionality of a statute at any time. [CITATION], ¶ 8.
¶ 10 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” [CITATION], 554 U.S. 570, 635 (2008). In 2010, the Court issued its decision in [CITATION],
in which it extended the right to keep and bear arms to the states under the fourteenth amendment.
[CITATION], 561 U.S. 742 (2010). Following [CITATION] and [CITATION], courts
developed a two-step test for evaluating second amendment challenges to firearm regulations: the
court would consider whether the regulated activity fell outside the scope of the second amendment
as the amendment was originally understood and, if not, weigh the severity of the regulation
[SEGMENT 9]
against the ends the government sought to achieve in enacting it. See [CITATION], ¶ 11.
¶ 11 Then, in 2022, the Court issued [CITATION], in which it announced a new test for evaluating the
constitutionality of firearm regulations:
“When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of
No. 1-23-1500
firearm regulation. Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s unqualified command.” (Internal quotation marks
omitted.) [CITATION], 597 U.S. at 24.
¶ 12 In other words, the first question under [CITATION] is “Does the plain text of the second
amendment cover an individual’s conduct?” (Internal quotation marks omitted.) [CITATION], ¶ 52. If the answer is no, the regulation is constitutional. Id.
If the answer is yes, the conduct is presumptively protected, and the court must answer the second
question: “Is the State’s regulation consistent with the Nation’s historical tradition of firearm
regulation[?]” (Internal quotation marks omitted.) Id.
¶ 13 Defendant argues that section 24-1.6(a)(1), (a)(3)(A-5) governs the conduct of publicly
carrying a firearm, which is covered by the second amendment. He notes that a valid concealed
carry license (CCL) under the Firearm Concealed Carry Act (Carry Act) (430 ILCS 66/1 et seq.
(West 2020)) cannot be obtained unless a person, inter alia, is 21 years old, completes firearms
training, and has a valid Firearm Owner’s Identification (FOID) card under the Firearm Owners
Identification Card Act (FOID Card Act) (430 ILCS 65/1 et seq. (West 2020)). See 430 ILCS
66/25 (West Supp. 2021).
¶ 14 In turn, a person cannot obtain a FOID card if, inter alia, he or she has been convicted of
a felony, is addicted to narcotics, has been a patient in a mental health facility in the prior five
years, or has an intellectual disability. 430 ILCS 65/4(a)(2)(ii)-(v) (West Supp. 2021). Obtaining
each license requires payment of certain fees. 430 ILCS 65/5(a) (West Supp. 2021); 430 ILCS
66/10(a)(3) (West Supp. 2021). The government is allowed 30 days to approve or deny an
application for a FOID card, and 90 days for a CCL, which is only valid for 5 years. 430 ILCS
No. 1-23-1500
65/5(a) (West Supp. 2021); 430 ILCS 66/10(c), (e) (West Supp. 2021). According to defendant,
this scheme places “an onerous burden” on the right to carry a firearm and the State cannot prove
that a criminal penalty for failing to comply with the scheme has historical analogues.
¶ 15 The State initially responds that defendant lacks standing to challenge the Carry Act or the
FOID Card Act as there is no evidence that he applied for a FOID card or CCL. However, as the
State concedes, defendant was convicted under section 24-1.6(a)(1), (a)(3)(A-5) and he therefore
has standing to challenge that provision, which criminalizes noncompliance with the Carry Act.
See [CITATION] (defendant had standing to raise facial
challenge to statute under which he had been convicted as he was injured by the statute’s
enforcement); see also [CITATION] (defendant who
had been convicted of AUUW for failure to comply with FOID Card Act and Carry Act had
standing to challenge AUUW statute despite no evidence of attempt to procure FOID Card or
CCL). 1
¶ 16 Substantively, the State points out that the FOID Card Act and Carry Act are “shall issue”
licensing regimes. In other words, when an applicant meets the statutory criteria under those acts,
they “shall” be issued a license. (Emphasis in original.) [CITATION] ¶¶ 16,
22; see also 430 ILCS 65/5(a) (West Supp. 2021) (“every applicant found qualified” under the
FOID Card Act “shall be entitled to” a FOID card); 430 ILCS 66/10(a) (West Supp. 2021) (Illinois
State Police “shall issue” a CCL to applicants who satisfy statutory requirements).
Unpublished orders filed under Illinois Supreme Court Rule 23(b) after January 1, 2021, may be
cited for persuasive purposes. Ill. S. Ct. R. 23(b), (e)(1) (eff. Feb. 1, 2023).
No. 1-23-1500
¶ 17 In Bruen, the Supreme Court differentiated between such “shall issue” licensing regimes
and the “may issue” licensing regime that was then before the Court, in which a license to carry
firearms in public would only issue to those who showed that “proper cause” existed. (Internal
quotation marks omitted.) [CITATION]. The Court in Bruen recognized that
Illinois was a shall-issue jurisdiction, and stated that nothing in its decision “should be interpreted
to suggest the unconstitutionality” of any shall-issue licensing regime, as objective requirements
like undergoing a background check or passing a firearm safety course did not prevent law-abiding,
responsible citizens from exercising their second amendment right. Id.
¶ 18 According to the State, we therefore do not need to undergo the Bruen analysis to reject
defendant’s claim. Indeed, following Bruen, in [CITATION], a defendant who had been convicted of
AUUW for possessing a weapon without a CCL or FOID card argued that his conviction was void
as the Carry Act and FOID Card Act were unconstitutional under Bruen. [CITATION]. We disagreed, on the basis that the acts were shall-issue regimes condoned by Bruen
as the background check and training requirements did not prevent law-abiding, responsible
citizens from exercising their second amendment right. Id. ¶¶ 19, 29, 32 (citing [CITATION]). See also [CITATION] (rejecting challenge to
section 24-1.6(a)(1), (a)(3)(A-5) on same basis); [CITATION] (same).
¶ 19 Defendant argues that Bruen’s endorsement of shall-issue licensing schemes comes only
from footnotes, is dicta, and references only the civil framework for obtaining a CCL and not the
criminalization of possessing a firearm in public without one. However, even disregarding Bruen’s
No. 1-23-1500
discussion of licensing schemes, defendant’s claim that section 24-1.6(a)(1), (a)(3)(A-5) is
unconstitutional under the test set forth in Bruen still fails.
¶ 20 We recently resolved this question in [CITATION] where, as here, the defendant argued that
section 24-1.6(a)(1), (a)(3)(A-5) was unconstitutional under Bruen. [CITATION]. We noted that Bruen limited the scope of the second amendment to law-abiding
citizens. Id. [CITATION] (citing Bruen, [CITATION]); see also [CITATION] (noting that justices in Bruen majority repeated phrase “law-abiding” 18 times
between their majority opinion and concurrences). As the Carry Act prohibited possession of a
concealed firearm outside the home without a CCL, anyone who did so was violating civil law.
[CITATION]. Section 24-1.6(a)(1), (a)(3)(A-5) merely criminalized
what was already non-law-abiding conduct. Id. Bruen and the second amendment therefore did not
apply to the conduct at issue and the defendant’s argument failed at Bruen’s first step. Id.
¶ 21 Defendant argues we should undertake a historical analysis under Bruen’s second step,
unlike the courts in [CITATION] and [CITATION]. Even were we to do so, defendant’s argument would
nevertheless fail.
¶ 22 Another district of this court has already found that the concealed carry provision of section
24-1.6(a) is constitutional under the second step of the Bruen test. [CITATION]. In [CITATION], the court
found that the State provided historical examples regulating the manner in which persons could
carry firearms in public that were relevantly similar to Illinois’s concealed-carry statutory scheme.
Id. [CITATION]. For example, courts had explained “ ‘[f]rom Blackstone through the 19th-century
cases’ ” that the right to keep and bear arms was not a right to carry any weapon in any manner.
No. 1-23-1500
Id. ¶ 28 (quoting [CITATION]). Rather, 19th-century prohibitions on carrying concealed
weapons were found lawful under the second amendment or “ ‘state analogues.’ ” Id. ¶ 29 (quoting
[SEGMENT 10]
[CITATION]). The public carry of firearms was commonly regulated in the colonies and
early Republic to prevent fear and terror, and in the 1800s “to reduce violence and protect the
public.” Id. ¶ 32. As section 24-1.6(a) likewise regulated the manner in which a person could
publicly carry a firearm and was not a total ban on the public carrying of firearms, it was therefore
constitutional under [CITATION], Id. ¶¶ 33-34.
¶ 23 In sum, our courts have consistently rejected the argument that section 24-1.6(a)(1),
(a)(3)(A-5) is facially unconstitutional under [CITATION]. See [CITATION].
Defendant provides no persuasive reason to depart from the reasoning in these cases.
¶ 24 Moreover, even if we found some fault with the analysis contained in these prior decisions,
we would be compelled to reject defendant’s facial challenge to section 24-1.6(a)(1), (a)(3)(A-5)
due to the recent decision in [CITATION]. In that case, the Court rejected a facial challenge to a federal statute—18 U.S.C. § 922(g)(8)(C)(i)
(2020)—that prohibits an individual subject to a domestic violence restraining order from
possessing a firearm if that order includes a finding that the person represents a credible threat to
the physical safety of an intimate partner, or a child of the partner or individual. Id. at 1898. The
Court conducted the very analysis called for in its prior [CITATION] decision and stated that “we have
no trouble concluding that Section 922(g)(8) survives [CITATION]’s facial challenge. Our tradition of
firearm regulation allows the Government to disarm individuals who present a credible threat to
the physical safety of others.” Id. 602 U.S. __, 144 S. Ct. at 1901.
No. 1-23-1500
¶ 25 Obviously, the specific federal statute at issue in Rahimi is not directly at issue in this
appeal. However, here defendant has raised a facial challenge to section 24-1.6(a)(1), (a)(3)(A-5),
and as such he must show that the statute is unconstitutional under any set of facts and the specific
facts related to defendant are irrelevant. [CITATION]. And, as
discussed above, section 24-1.6(a)(1), (a)(3)(A-5) makes it a felony to possess a firearm without
having been issued a currently valid CCL. 720 ILCS 5/1.6(a)(1), (a)(3)(A-5) (West Supp. 2021).
Furthermore, a valid CCL cannot be obtained unless a person, inter alia, has a valid FOID card
(430 ILCS 65/1 et seq. (West 2020)). See 430 ILCS 66/25 (West Supp. 2021). In turn, a person
cannot obtain a FOID card if, inter alia, he or she “is prohibited from acquiring or possessing
firearms or firearm ammunition by any Illinois State statute or by federal law.” (Emphasis added.)
430 ILCS 65/8(n) (West 2020). A person subject to Section 922(g)(8) of the federal code is just
such a person.
¶ 26 Thus, because there is at least one instance where it would be constitutional under the
second amendment and the Bruen analysis to deny a FOID card and therefore also deny a CCL to
an applicant, and because possessing a firearm without a CCL in that instance would violate section
24-1.6(a)(1), (a)(3)(A-5), we must reject defendant’s facial challenge to that statute. [CITATION]
(“so long as there exists a situation in which a statute could be validly
applied, a facial challenge must fail.”).
¶ 27 For these reasons, we affirm the circuit court’s denial of defendant’s petition for relief filed
under section 2-1401 of the Code.
¶ 28 Affirmed.
- 10 -
2024 IL App (1st) 230524-U
Order filed: August 15, 2024
FIRST DISTRICT
FOURTH DIVISION
No. 1-23-0524
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 9485
)
TERRY MOFREH, ) Honorable
) Arthur Wesley Willis,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for aggravated unlawful use of a weapon is affirmed, where
defendant was not prejudiced by any evidence admitted at trial or any improper
closing argument, and the statute under which he was convicted was not facially
unconstitutional.
¶2 Defendant-appellant, Terry Mofreh, appeals from his conviction for aggravated unlawful
use of a weapon. For the following reasons, we affirm.
¶3 In July 2021, defendant was charged by indictment with two counts—counts 1 and 2—of
aggravated unlawful use of a weapon (“AUUW”) and one count—count 3—of unlawful use or
possession of a weapon by a felon (“UUWF”), with the offenses alleged to have occurred on or
about June 5, 2021. Count 1 alleged that defendant was in possession of a weapon while not having No. 1-23-0524
been issued a valid concealed carry license, while count 2 alleged that defendant was in possession
of a weapon while not having been issued a valid firearm owner’s identification (“FOID”) card.
All three of the counts alleged that defendant had been previously convicted of aggravated battery.
¶4 Prior to trial, defendant filed a motion in limine. As relevant to this appeal, the motion first
sought to “bar any witness from testifying regarding [ShotSpotter] or [ShotSpotter] technology.”
At a hearing on that motion, defense counsel asserted that with respect to the introduction of any
ShotSpotter evidence, “I would ask that the officers be prohibited from any testimony regarding
ShotSpotter or the fact that ShotSpotter went off that evening and that was the reason that they
went to that location. It would be unfairly prejudicial if the jury were to hear that because they may
wrongly assume that Mr. Mofreh had fired a weapon or used a weapon. There is no allegation of
that contained in either the charging documents here or anything that we’ve been tendered in
discovery.”
¶5 The State responded: “We weren’t going to argue that the defendant was the one that fired
the gun, the defendant was the one that didn’t fire the gun, somebody else fired the gun, anything
about it but just that they were responding to a ShotSpotter call.” The State further noted that
“before the officers got there, they traveled six blocks, wrong way, on a one-way street and that’s
why they were doing that, to get to that address for that more serious call. So it kind of explains
the officers’ actions, the course of conduct they took.” The trial court denied this motion in limine,
concluding that such evidence was being introduced to show the police officers’ course of conduct
and was “not coming in for the truth of the matter asserted.”
¶6 Defendant’s motion in limine also sought to “prohibit the State from arguing that
investigatory actions that could have been taken by police officers or other state actors would have
No. 1-23-0524
been a waste of taxpayer or state dollars as a justification for why certain investigatory actions
were not taken in the present case.” The trial court granted this motion without further argument.
¶7 The matter proceeded to a jury trial. Notably, during opening statements the State only
briefly mentioned that before encountering defendant on June 25, 2021, a “team of Chicago police
officers were responding to a call of ShotSpotter.” While defense counsel’s opening statement did
not discuss any potential ShotSpotter evidence at all, it did specifically discuss the fact that after
the police recovered a firearm, “one of the officers who was there that evening, one Officer
Ainalakis picked up that firearm in direct violation of Chicago Police Department procedures
because when he picked that gun up, he didn’t first put on a pair of gloves to preserve potentially
critical fingerprint evidence.” Defense counsel also stressed that:
“The gun, the magazine and the bullets were all sent off to the forensic services
division within the Chicago Police Department. We’re going to hear that this is the unit
where objects can be scientifically analyzed for fingerprints that aren’t immediately
obvious to the naked eye. This is the unit where biological DNA swabs can be taken and
sent off to the Illinois State Police. But for whatever reason once these objects made their
[SEGMENT 11]
way to the forensic services division, neither the firearm nor the magazine nor the bullets
inside were ever subjected to any testing that we will hear about during this trial.”
¶8 At trial, the State first presented testimony from Officer Evagelos Ainalakis. He testified
that on the night of June 25, 2021, he was part of a tactical team that included Officers Ryan Ritchie
and Anathea Smith. Just before 10 p.m., the team was directed to 10429 South Forest Avenue in
Chicago, Illinois, due to a ShotSpotter alert which notifies police when shots are being fired. The
team travelled in an unmarked vehicle northbound, down the wrong way of a one-way street to
reach the location of the alert as quickly as possible. Upon arrival, Officer Ainalakis observed
No. 1-23-0524
defendant running towards the team through the front yards from 10437 to 10441 South Forest
Avenue. The night was clear, and the street was lit with artificial lighting. Defendant, who was the
only person out on the streets, looked in the officer’s direction and ran toward a fence at 10441
South Forest Avenue holding a pink and black gun in his right hand, which was an unusual color
for a firearm. Defendant then threw the firearm over the fence.
¶9 Officer Ainalakis exited the vehicle to detain defendant. While defendant initially paused
in one of the front yards, he soon quickly and briefly ran away into the street. Defendant was then
detained and placed in custody. Officer Ainalakis then walked to the fence, opened it and retrieved
a pink and black firearm lying on the ground. The firearm was loaded with ammunition. At the
time he recovered the firearm, Officer Ainalakis could hear that other people were beginning to
congregate at the scene.
¶ 10 Defendant was then placed under arrest. A video of Officer Ainalakis’ body camera
footage, without audio, was published to the jury, While the video did not show defendant holding
or throwing the firearm because the officer was still in the vehicle at the time, the video otherwise
matched the officer’s testimony. In addition, while neither Officer Ritchie nor Smith observed
defendant in possession of or throwing a firearm, their testimony also otherwise generally
corroborated that of Officer Ainalakis, as did a video of Officer Ritchie’s body camera footage
shown to the jury.
¶ 11 Of note, Officer Ainalakis identified the pink and black firearm in open court but also
testified that he did not wear gloves when he retrieved the firearm because he did not have a pair
of gloves immediately at hand. While on cross-examination he acknowledged that the use of gloves
was called for by official police department policy, on redirect examination he explained that there
was an exception to that requirement where “exigent circumstances” existed. Officer Ainalakis
No. 1-23-0524
testified that the presence of additional people near an unrecovered firearm constituted an exigent
circumstance, and Officer Ritchie corroborated this testimony. Officer Ainalakis further testified
that the ShotSpotter alert of shots fired also constituted an exigent circumstance. And, when
confronted by defense counsel with the fact that the recovered firearm was not ultimately subjected
to any forensic testing, including fingerprint or DNA testing, both Officers Ainalakis and Ritchie
testified that neither fingerprint nor DNA testing would have typically been performed in this case,
as it was a firearm possession case that did not involve a shooting or other violent crime.
¶ 12 Additionally, during their testimony each of the officers was asked about the ShotSpotter
alert. Each generally testified that such an alert was an automated system that indicated a report
that gunshots had been fired in a particular area. In addition, however, some of the language in the
State’s questioning and in the officers’ testimony went further, indicating either implicitly or
explicitly that a ShotSpotter alert indicated that gunshots had in fact been fired in a particular
location. At trial, defense counsel objected to some, but not all, of this testimony.
¶ 13 The parties then stipulated that defendant did not have a valid concealed carry license or
FOID card at the time of his arrest, and had a prior felony conviction.
¶ 14 During its closing argument, the State only briefly mentioned the ShotSpotter evidence and
did not discuss the evidence of exigent circumstances at all. It was defense counsel that raised the
issue of the failure to use gloves to retrieve the firearm and the lack of any exigent circumstances
to justify this failure, as well as the fact that no forensic testing was completed. In rebuttal
argument, the State responded that Officer Ainalakis and his fellow officers were responding to a
ShotSpotter alert, which helps officers to “make it on time so that people don’t get killed,” and
which signals that a shooting has occurred, which by its nature is an “exigent circumstance.” The
State also argued: “They would have you believe that every piece of evidence, every gun, every
No. 1-23-0524
piece of evidence that's recovered from the streets of Chicago is somehow—must have DNA on
it, it must have fingerprints on it. Imagine the manpower it would take.” Defense made an
objection, and the trial court immediately sustained it. Thereafter, the jury was instructed—inter
alia—that closing arguments were not evidence.
¶ 15 At the conclusion of trial, the State moved to dismiss count 1 by nolle prosequi and the
jury proceeded to deliberate solely on the remaining counts 2 and 3. The jury found defendant
guilty of both remaining counts.
¶ 16 Defendant filed a motion for a new trial, which was subsequently amended. As amended
and as relevant to this appeal, in the motion defendant contended that: (1) even though his objection
to the State’s closing argument regarding the “Imagine the manpower” comment was sustained,
“this was said in the presence of the jury and the jury still was able to hear this argument. This
violation of the motion in limine served to taint the jury, prejudicing Mr. Mofreh,” and (2)
“ShotSpotter evidence was improperly admitted in this case” and improperly argued as substantive
evidence during the State’s closing argument. The State responded that, with respect to the first
argument, the comment did not actually violate the motion in limine, it was made in response to
defendant’s own arguments regarding the lack of forensic testing and, in any case, defendant was
not prejudiced where his objection was sustained. As to the ShotSpotter evidence and arguments
related thereto, the State contended that such evidence and argument were only used at trial for
course-of-conduct purposes. The trial court denied defendant’s motion for a new trial.
¶ 17 Defendant was then sentenced to three years in prison for his conviction for AUUW on
count 2, with his conviction on count 3 merging into that conviction. Defendant timely appealed.
¶ 18 We first consider defendant’s assertion that his conviction should be reversed because he
was prejudiced by the improper admission of irrelevant hearsay evidence regarding ShotSpotter.
No. 1-23-0524
¶ 19 Relevant evidence is “evidence having any tendency to make the existence of a fact that is
of consequence to the determination of the action more or less probable than it would be without
the evidence.” [CITATION]. Hearsay is defined as testimony
of an out-of-court statement offered to establish the truth of the matter asserted therein. [CITATION]. A statement offered for a reason other than for the truth
of the matter asserted is generally admissible because it is not hearsay. [CITATION]. For example, evidence
offered to prove its effect on the listener’s state of mind, or to show why the listener acted the way
he did, is not hearsay. [CITATION]. Furthermore, evidence regarding a police investigation is relevant and
admissible. [CITATION] (“a police officer may recount the steps
taken in the investigation of a crime, and may describe the events leading up to the defendant’s
arrest, where such testimony is necessary and important to fully explain the State’s case to the trier
of fact”). We apply an abuse-of-discretion standard when reviewing the trial court’s decision
regarding the admission of hearsay. [CITATION], ¶ 20.
¶ 20 Before continuing further, we note that the parties dispute whether and to what extent
defendant fully preserved his objections to the admission of the ShotSpotter evidence. Defendant
asserts in the alternative that this issue was either fully or partially preserved, or that the admission
of this evidence should be reviewed for plain error or for ineffective assistance of counsel.
Regardless of the lens through which we analyze this issue, we find no reason to disturb
defendant’s conviction based on the admission of the ShotSpotter evidence.
¶ 21 Specifically, even if fully preserved we note that to the extent that the officers generally
testified that they responded to the scene due to a ShotSpotter alert, without further elaboration,
this was proper course-of-conduct evidence explaining the course of the investigation. Even
defendant concedes as much on appeal.
No. 1-23-0524
¶ 22 Furthermore, to the extent that that the officers testified that they responded to a
ShotSpotter alert, which merely indicated a report of shots being fired, we also find that such
evidence was entirely proper. Again, such evidence was not introduced for the truth of the matter
asserted—that shots were actually fired—but to explain why the officers responded to the scene
and why they drove the wrong way on a one-way street to get there. It was also properly admitted
[SEGMENT 12]
as rebuttal evidence, which is evidence “adduced by the prosecution to explain, repel, contradict,
or disprove evidence presented by the accused.” [CITATION]. At trial, defense counsel elicited evidence that the firearm was recovered without the use of gloves,
in potential violation of official policy. Evidence that there was a report of shots being fired was
properly admitted to establish that Officer Ainalakis believed that “exigent circumstances” existed
which justified his failure to use gloves to retrieve the firearm, thus rebutting this evidence.
¶ 23 However, defendant is certainly correct that at times both the State’s questioning at trial
and the answers provided by the State’s witnesses went beyond these limitations and may well
have constituted improper hearsay evidence that the ShotSpotter alert indicated the truth of the
matter asserted—that shots had actually been fired. However, to the extent that that this issue was
fully preserved, any error may be considered harmless if it appears beyond a reasonable doubt that
the error did not contribute to the verdict. [CITATION]. In
considering whether the error contributed to the verdict, we may consider whether the other
evidence overwhelmingly supported the conviction. Id.; [CITATION] (error is harmless where other evidence in the case overwhelmingly supports the
conviction).
¶ 24 At trial, Officer Ainalakis provided clear, unrebutted testimony that he observed defendant
in possession of a distinctive pink and black firearm and then throw that firearm over a fence. No
No. 1-23-0524
other person was in the vicinity at that time. The positive testimony of a single credible witness is
sufficient to sustain a conviction. [CITATION] This evidence was then
corroborated by video evidence. While the body camera evidence did not show defendant in
possession of the firearm, it does show Officer Ainalakis initially confront defendant after exiting
the squad car and then go immediately to the exact location of the firearm behind the fence and
retrieve it. In addition, both Officer Ainalakis’ testimony and the video evidence established that
when he was initially confronted by the police, defendant briefly attempted to flee. It is well
established that flight, when considered with all the other evidence, is a circumstance that a
factfinder may consider as tending to prove guilt. [CITATION]
We also note that Officer Ainalakis’ testimony regarding the events of the evening was also
generally corroborated by the testimony of Officers Ritchie and Smith. Lastly, the parties
stipulated that defendant did not have a valid FOID card at the time and had a prior felony
conviction.
¶ 25 Furthermore, any possible prejudice in the introduction of the ShotSpotter evidence for the
truth of the matter asserted did nothing to discount this evidence. At most, such evidence
improperly supported the State’s assertion that exigent circumstance existed to justify the failure
to use gloves in retrieving the firearm. However, Officers Ainalakis and Ritchie both provided
unrebutted, unchallenged testimony that the gathering crowd constituted a safety concern and as
such was also an exigent circumstance. “In deciding whether an error is harmless, a reviewing
court may ‘determine whether the improperly admitted evidence is merely cumulative or
duplicates properly admitted evidence.’ ” [CITATION]
And in any case, Officers Ainalakis and
Ritchie also both provided unrebutted, unchallenged testimony that neither fingerprint nor DNA
No. 1-23-0524
testing would have typically been performed in this case under any circumstances, as it was a
firearm possession case that did not involve a shooting or other violent crime.
¶ 26 For all these reasons, we conclude that even if this issue was fully preserved any error in
the admission of improper ShotSpotter evidence was harmless. [CITATION].
Considering this finding, we also conclude that any error in the admission of this evidence also did
not constitute plain error or ineffective assistance of counsel.
¶ 27 If reviewed for plain error, we note that the plain error doctrine “bypasses normal forfeiture
principles and allows a reviewing court to consider unpreserved error.” [CITATION]. The plain-error doctrine is applied where “(1) a clear or obvious error occurred
and the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
occurred and that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.” [CITATION]. In either circumstance, the burden of persuasion remains
with the defendant. [CITATION].
¶ 28 With respect to the first prong, if an error is “harmless, it most certainly cannot rise to the
level of plain error.” [CITATION]. While defendant also asserts second-
prong plain error on appeal, the “second prong of the plain error rule can be invoked ‘only in those
exceptional circumstances where, despite the absence of objection, application of the rule is
necessary to preserve the integrity and reputation of the judicial process.’ ” [CITATION]. We find that
defendant cannot establish second-prong plain error, because any admission of improper
ShotSpotter evidence was merely an error in the trial process itself, and not an error affecting the
- 10 - No. 1-23-0524
framework within which the trial proceeded. [CITATION]
“resulted merely in the introduction of improper evidence”).
¶ 29 To assert a claim of ineffective assistance of counsel, a defendant must establish that (1)
“counsel’s representation fell below an objective standard of reasonableness” and (2) “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” [CITATION]. A defendant
must satisfy both prongs of the Strickland test, and the failure to satisfy either of these prongs
precludes a finding of ineffectiveness.” [CITATION].
¶ 30 In this case, we can dispose of defendant’s assertion of ineffective assistance of counsel on
the prejudice prong alone. We have already concluded that any introduction of ShotSpotter
evidence was harmless, and therefore any failure by defense counsel to object to this evidence or
otherwise preserve the matter for appeal cannot have prejudiced defendant. See [CITATION]
¶ 31 Next, defendant contends the State made various improper remarks during closing
arguments. Prosecutors have great latitude in making their closing arguments, and such arguments
are proper if they are based on the record or are reasonable inferences drawn therefrom. [CITATION]. The entire record, particularly the full argument of both
sides, must be considered to assess the propriety of prosecutorial argument. [CITATION]. Prosecutorial comments constitute reversible error only if they
engender “substantial prejudice.” [CITATION]. Substantial
prejudice occurs when “the improper remarks constituted a material factor in a defendant’s
conviction.” Id.
- 11 - No. 1-23-0524
¶ 32 This court has acknowledged confusion regarding the applicable standard of review, in
light of “an apparent conflict” in supreme court precedent. [CITATION], ¶¶ 78-9. In 2000, our supreme court stated that the trial court’s determination of the
propriety of remarks during closing argument “will not be disturbed absent a clear abuse of
discretion.” [CITATION]. However, in 2007, our supreme court
subsequently stated that “[w]hether statements made by a prosecutor at closing argument were so
egregious that they warrant a new trial is a legal issue this court reviews de novo.” [CITATION]
.
¶ 33 We need not decide whether [CITATION] or [CITATION] defined the precise standard of review. This
is because under either standard, we find that the remarks challenged in this appeal did not
constitute reversible error. See [CITATION], ¶ 40 (“In this case, we
would reach the same result under any standard of review.”).
¶ 34 We first consider defendant’s argument that he was prejudiced by the State’s violation of
the motion in limine in making the “Imagine the manpower” comment regarding the lack of
forensic testing. Defendant preserved this issue for appeal by objecting at trial and including the
issue in his posttrial motion.
¶ 35 However, even if this argument was made in error, it constituted only a brief and isolated
comment in the context of the State’s overall closing argument. See [CITATION], ¶ 87 (noting that the brief and isolated nature of remarks in context is a factor in assessing
the effect on the jury verdict). Moreover, the trial court cured any error by immediately sustaining
defense counsel’s objection to this comment and instructing the jury that closing arguments were
not evidence. [CITATION]. On this record, and considering
- 12 - No. 1-23-0524
the evidence presented at trial, we find that defendant cannot be said to have been substantially
prejudiced as this remark did not constitute a material factor in his conviction.
¶ 36 Defendant also complains that he was prejudiced when the State improperly argued that
the ShotSpotter evidence showed that shots had actually been fired. He specifically contends that
these arguments served no purpose but to inflame the passions of the jury.
¶ 37 “Closing argument must serve a purpose beyond inflaming the emotions of the jury.”
[CITATION]; see also [CITATION] (“[I]t is improper
for the prosecutor to make statements the only effect of which is to inflame the passions or develop
[SEGMENT 13]
the prejudices of the jury without throwing any light upon the issues.”). However, inflaming of the
jury’s passions is not directly barred; rather, any commentary that does so must also serve a
different, proper purpose. [CITATION] (“[A]rgument that serves no purpose but to
inflame the jury constitutes error.”).
¶ 38 Here, the State’s closing argument regarding the ShotSpotter evidence was not introduced
solely to inflame the passions of the jury, but rather to respond to defense counsel’s argument
regarding the lack of any reason not to use gloves to retrieve the firearm. Statements are not
improper if they were provoked or invited by defense counsel’s argument. [CITATION]
¶ 39 Moreover, even if there was some error with respect to the State’s closing argument
regarding the ShotSpotter evidence, defendant concedes that he did not preserve this issue for
appeal and thus asks this court to review the issue for first-prong plain error. However, as discussed
above, we find that the evidence of defendant’s guilt was not closely balanced, but rather was
overwhelming. Thus, review of this issue for first-prong plain error is unavailing.
- 13 - No. 1-23-0524
¶ 40 Defendant’s final contention with respect to the State’s closing argument is that the State
misstated the evidence when it argued that when Officer Ainalakis confronted defendant he “takes
off running because he is guilty.” We reject this argument because—however brief it may have
been—both Officer Ainalakis’ testimony and the video evidence established that defendant did in
fact attempt to flee from police when he was confronted. “Arguments and statements that are based
upon the facts in evidence, or upon reasonable inferences drawn there from, are within the scope
of closing argument.” [CITATION] We also note that, again,
defendant concedes that this issue was not properly preserved. For the same reasons as above,
defendant’s request for first-prong plain error is unavailing.
¶ 41 Finally, we address defendant’s argument that the specific section of the AUUW statute
under which he was convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2020)) is facially
unconstitutional, as it violates his right to bear arms under the second amendment to the United
States Constitution. U.S. Const., amend. II.
¶ 42 We review a constitutional challenge to a statute de novo because it presents a question of
law. [CITATION] Legislative enactments have a strong presumption
of constitutionality, and this court must uphold the constitutionality of a statute when reasonably
possible. Id. A defendant challenging the constitutionality of a statute bears the burden to prove
the statutes’ invalidity. Id.
¶ 43 Here, defendant raises a facial challenge to section 24-1.6(a)(1), (a)(3)(C) of the AUUW
statute, which is the most difficult type of constitutional challenge. An enactment is invalid on its
face only if no set of circumstances exists under which it would be valid. [CITATION] A facial challenge requires a showing that the statute is
unconstitutional under any set of facts; the specific facts related to the challenging party are
- 14 - No. 1-23-0524
irrelevant. [CITATION]. “If it is reasonably possible to construe
the statute in a way that preserves its constitutionality, we must do so.” [CITATION]. A defendant may challenge the facial constitutionality of a statute at any time,
even—as defendant does so here—for the first time on appeal. [CITATION].
¶ 44 The second amendment to the United States Constitution provides: “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const., amend. II. In 2008, the United States Supreme Court
issued its decision in [CITATION], in which it found
that that the second amendment elevated “the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.” In 2010, the Court extended the right to keep and bear arms to the
states under the fourteenth amendment. [CITATION]. “Like
most rights, [however,] the right secured by the Second Amendment is not unlimited.” [CITATION]. The issue here is whether section 24-1.6(a)(1), (a)(3)(C) of the AUUW
statute under which defendant was convicted improperly infringes on this right because it is
facially unconstitutional. For the following reasons, we conclude that it does not.
¶ 45 In Illinois. the Firearm Owner’s Identification Card Act requires that a person wishing to
acquire or possess a firearm first obtain a FOID card from the Illinois State Police. 430 ILCS
65/2(a) (West 2020). In turn, the AUUW statute, in relevant part, provides that
“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode,
- 15 -
====== End of Part ====== No. 1-23-0524
legal dwelling, or fixed place of business, or on the land or in the legal dwelling of
another person as an invitee with that person’s permission, any pistol, revolver, stun
gun or taser or other firearm; [and]
***
(3) One of the following factors is present:
***
(C) the person possessing the firearm has not been issued a currently
valid Firearm Owner’s Identification Card.
***
(d) Sentence
***
(3) Aggravated unlawful use of a weapon by a person who has been
previously convicted of a felony in this State or another jurisdiction is a Class 2
felony for which the person shall be sentenced to a term of imprisonment of not
less than 3 years and not more than 7 years.” 720 ILCS 5/24-1.6(a), (d) (West 2020).
¶ 46 This specific section of the AUUW statute has previously been subject to facial
constitutional challenges under the second amendment, and it has routinely been found
constitutional. See [CITATION]. However, in New York
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), the Supreme Court of the United States
announced a new test for assessing the constitutional validity of laws seeking to regulate conduct
protected by the second amendment.
- 16 - No. 1-23-0524
¶ 47 Therein, the Court explained that “when the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that conduct.” [CITATION]
To justify regulation of that protected conduct, “the government must demonstrate that the
regulation is consistent with this Nation’s historical tradition of firearm regulation.” [CITATION]
Thus, “[o]nly if a firearm regulation is consistent with this Nation’s historical tradition
may a court conclude that the individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’ ” [CITATION] (quoting [CITATION])
As the Third District has explained,
“[t]his text-and-history standard is a two-part inquiry. The first inquiry is: Does the plain
text of the second amendment cover an individual’s conduct? [CITATION] If not, the
regulation is constitutional because it falls outside the scope of protection. But if it does,
the individual’s conduct is presumptively protected by the second amendment, and we
move to the second inquiry: Is the State’s regulation ‘consistent with the Nation’s historical
tradition of firearm regulation[?]’ [CITATION]
¶ 48 While on appeal, defendant contends that section 24-1.6(a)(1), (a)(3)(C) of the AUUW
statute fails this new test, we note that the same argument has been presented and rejected several
times by Illinois courts. See [CITATION]. And, although
defendant provides various arguments as to why we should not follow this clear precedent, we
decline defendant’s request to revisit these decisions.
¶ 49 Moreover, even if we accepted defendant’s arguments and found some fault with the
analysis contained in these prior decisions, we would be compelled to reject defendant’s facial
- 17 - No. 1-23-0524
challenge to section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute due to the recent decision in
[CITATION]. In that case, the Court rejected
a facial challenge to a federal statute—18 U.S.C. § 922(g)(8)(C)(i) (2020)—that prohibits an
individual subject to a domestic violence restraining order from possessing a firearm if that order
includes a finding that the person represents a credible threat to the physical safety of an intimate
partner, or a child of the partner or individual. Id. at 1898. The Court conducted the very analysis
called for in its prior [CITATION] decision and stated that “we have no trouble concluding that Section
922(g)(8) survives [CITATION]’s facial challenge. Our tradition of firearm regulation allows the
[SEGMENT 14]
Government to disarm individuals who present a credible threat to the physical safety of others.”
Id. [CITATION].
¶ 50 Obviously, the specific federal statute at issue in [CITATION] is not directly at issue in this
appeal. However, here defendant has raised a facial challenge to section 24-1.6(a)(1), (a)(3)(C) of
the AUUW statute, and as such he must show that the statute is unconstitutional under any set of
facts and the specific facts related to defendant are irrelevant. [CITATION]. And, as
discussed above, section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute makes it a felony to possess
a firearm without having been issued a currently valid FOID card. 720 ILCS 5/24-1.6(a) (West
2020). Notably, Illinois law specifically provides that: “The Illinois State Police has authority to
deny an application for or to revoke and seize a Firearm Owner’s Identification Card previously
issued under this Act only if the Illinois State Police finds that the applicant or the person to whom
such card was issued is or was at the time of issuance *** [a] person who is prohibited from
acquiring or possessing firearms or firearm ammunition by any Illinois State statute or by federal
law.” (Emphasis added.) 430 ILCS 65/8(n) (West 2020). A person subject to Section 922(g)(8) of
the federal code is just such a person.
- 18 - No. 1-23-0524
¶ 51 Thus, because there is at least one instance where it would be constitutional under the
second amendment and the Bruen analysis to deny a FOID card to an applicant, and because
possessing a firearm without a FOID card in that instance would violate section 24-1.6(a)(1),
(a)(3)(C) of the AUUW statute, we must reject defendant’s facial challenge to that statute. [CITATION]
(“so long as there exists a situation in which a statute could be validly applied, a facial challenge must fail.”).
¶ 52 For the foregoing reasons, we affirm the judgement of the circuit court.
¶ 53 Affirmed.
- 19 - Certainly! Here is the text with the necessary replacements:
==== Part of a Court Ruling ====
2024 IL App (1st) 231051-U
No. 1-23-1051
Order filed August 12, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 17 CR 1246
)
ARTEZ McNEAL, ) Honorable
) Ursula Walowski,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of defendant’s postconviction petition is affirmed
where defendant has abandoned the claim of ineffective assistance of counsel which
was raised in his petition and his claim on appeal that the armed habitual criminal
statute is facially unconstitutional under the second amendment is without merit.
¶2 Defendant Artez McNeal appeals from an order of the circuit court of Cook County
granting the State’s motion to dismiss his petition for relief filed under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). On appeal, defendant has abandoned No. 1-23-1051
the claim of ineffective assistance of counsel which was raised in his postconviction petition and,
instead, solely contends that the armed habitual criminal statute under which he was convicted
(720 ILCS 5/24-1.7 (West 2016)) is facially unconstitutional under the second amendment of the
United States Constitution (U.S. Const., amend. II). For the following reasons, we affirm.
¶3 Following a 2017 jury trial, defendant was convicted of being an armed habitual criminal
(AHC) and sentenced to a term of 10 years’ imprisonment. The two predicate felony convictions
underlying the AHC conviction were defendant’s 2009 conviction for aggravated vehicular
hijacking and his 2013 conviction for manufacture or delivery of a controlled substance. On direct
appeal, this court affirmed defendant’s conviction. [CITATION].
¶4 On December 7, 2020, defendant filed a pro se postconviction petition under the Act
raising a single claim of ineffective assistance of trial counsel for failing to investigate and call a
particular witness at trial who may have provided exonerating testimony. Defendant attached to
his petition an affidavit from that witness averring that she never gave a written or verbal statement
against defendant and that counsel never contacted her to confirm or deny if she made a statement.
The circuit court appointed counsel to represent defendant and advanced his petition to the second
stage of proceedings under the Act.
¶5 On March 16, 2023, the State moved to dismiss defendant’s postconviction petition arguing
that counsel’s decision regarding which witnesses to call at trial was a matter of trial strategy that
was entitled to deference and generally immune from claims of ineffective assistance. The State
pointed out that there was no evidence that the proposed witness ever provided a statement against
defendant, and no written or verbal statement from her had been introduced at trial. Consequently,
No. 1-23-1051
the proposed witness’s testimony would not have changed the outcome of trial and defendant had
not been prejudiced by counsel’s decision not to call her.
¶6 Following a hearing on May 31, 2023, the circuit court granted the State’s motion and
dismissed defendant’s postconviction petition.
¶7 On appeal, defendant has abandoned his claim of ineffective assistance of trial counsel
raised in his postconviction petition. Instead, for the first time on appeal, he solely contends that,
in light of the United States Supreme Court’s decision in [CITATION], the AHC statute under which he was convicted is facially
unconstitutional under the second amendment of the United States Constitution (U.S. Const.,
amend II).
¶8 Generally, a claim not raised in a postconviction petition cannot be raised for the first time
on appeal from the dismissal of that petition. [CITATION]. However, a challenge to a statute as facially unconstitutional is exempt from forfeiture and may
be raised at any time. [CITATION]. Here, the parties agree, and we
concur, that the record on appeal is sufficiently developed to allow this court to address defendant’s
constitutional challenge. See [CITATION]. Whether the AHC statute is constitutional is a question of
law which we review de novo. [CITATION] (citing [CITATION]).
¶9 The AHC statute provides:
“(a) A person commits the offense of being an armed habitual criminal if he or she
receives, sells, possesses, or transfers any firearm after having been convicted a total of 2
or more times of any combination of the following offenses:
No. 1-23-1051
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a
weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated
vehicular hijacking; aggravated battery of a child as described in Section 12-4.3 or
subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation;
gunrunning; home invasion; or aggravated battery with a firearm as described in
Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled Substances Act or the Cannabis
Control Act that is punishable as a Class 3 felony or higher.
(b) Sentence. Being an armed habitual criminal is a Class X felony.” 720 ILCS
/24-1.7 (West 2016).
¶ 10 Defendant argues that the AHC statute is unconstitutional under the second amendment on
its face. A facial challenge is “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional. [CITATION], ¶ 10. To rebut that
presumption and establish that a statute is facially unconstitutional, the party challenging the
constitutionality must demonstrate that there are no circumstances under which the statute would
be valid. Id. “If it is reasonably possible to construe the statute in a way that preserves its
constitutionality, we must do so.” Id.
¶ 11 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
[SEGMENT 15]
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], in which it stated that the second amendment elevated “the right of law-abiding,
====== End of Part ====== No. 1-23-1051
responsible citizens to use arms in defense of hearth and home.” [CITATION]. In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION]. The Court
reiterated that its decision in Heller “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” [CITATION] (quoting [CITATION]).
¶ 12 Following Heller and McDonald, courts developed a two-step analysis for evaluating
second amendment challenges to firearm regulations. See [CITATION]. ¶ 11.
First, the courts considered whether the regulated activity fell within the scope of the second
amendment as it was originally understood. Id. If the government did not establish that the
regulated activity was outside the scope of the second amendment, the courts proceeded to the
second step and conducted a “means-end analysis.” (Internal quotation marks omitted.) Id. During
that step of the analysis, the courts weighed the severity of the regulation against the ends which
the government sought to achieve in enacting the regulation. Id.
¶ 13 However, in 2022 the Supreme Court issued Bruen, in which it adopted a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]).
The Court condemned the means-end analysis. Id. (citing [CITATION]). Rather, under Bruen, where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate that the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
No. 1-23-1051
second amendment to mean. [CITATION] (citing [CITATION],
¶ 14 Initially, the State responds that in this case we need not reach the analytical framework
that [CITATION] provided. The State notes that [CITATION] concerned a portion of a New York statute that
only issued licenses to carry a firearm outside one’s home or place of business to those who showed
that “proper cause” existed. [CITATION]. The Court differentiated New York’s “may-
issue” licensing regime from the majority of states that have “shall-issue” licensing regimes, where
the states issue a license whenever an applicant meets certain, objective requirements. Id. at 38
n.9. [CITATION] expressly stated that nothing in its decision “should be interpreted to suggest the
unconstitutionality” of any “shall-issue” licensing regime. Id.
¶ 15 Following [CITATION], in [CITATION], this court rejected the defendant’s argument that the
aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a) (West 2020)) was facially
unconstitutional because it criminalized possessing a firearm if the possessor was not in
compliance with the Firearm Owners Identification (FOID) Card Act (430 ILCS 65/1 et seq. (West
2020)) or the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2020)) (Acts). [CITATION] We found in [CITATION] that those Acts were “shall-issue”
licensing programs of the type that [CITATION] had approved, and, therefore, the aggravated unlawful
use of a weapon statute was not unconstitutional for criminalizing the possession of a firearm by
a person who was not in compliance with those Acts. Id. ¶¶ 14-30.
¶ 16 The State notes that those Acts prohibit convicted felons from obtaining a FOID card or
CCL. 430 ILCS 65/8(c) (West Supp. 2021); 430 ILCS 66/25(2) (West 2022). The State asserts that
we may therefore reject defendant’s facial challenge to the AHC statute without reaching any of
No. 1-23-1051
the analytical steps provided by [CITATION] because, like those Acts, the AHC statute prohibits felons
from carrying firearms. We are not convinced that [CITATION] and [CITATION]’s discussion of licensing
schemes should control here. See [CITATION], ¶ 79 n.11 (rejecting the
State’s request to find [CITATION] inapplicable to the AHC statute based on [CITATION]’s endorsement of
shall-issue licensing regimes). In any case, the outcome of this appeal would not differ, as the AHC
statute is constitutional under [CITATION]’s analytical framework.
¶ 17 Thus, we turn to the analysis provided by [CITATION]. Again, the first question under [CITATION] is
whether the second amendment’s plain text covers the conduct at issue. [CITATION]. If
it does, the second question is whether the State has demonstrated that the regulation comports
with our national historical tradition of firearm regulation. Id.
¶ 18 Here, defendant claims that the conduct prohibited by the AHC statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
protected. We disagree. In [CITATION], the Supreme Court reiterated that the second amendment does
not grant an unrestricted right to carry firearms by all people at all times. Rather, it explained that:
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [CITATION].
Those restrictions, for example, limited the intent for which one could
carry arms, the manner by which one carried arms, or the exceptional circumstances under
which one could not carry arms, such as before justices of the peace and other government
officials.” Id. at 70.
¶ 19 In [CITATION], and [CITATION], the Supreme Court expressly stated that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] (agreeing
No. 1-23-1051
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also Heller, [CITATION] (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); McDonald, [CITATION]
(reiterating that Heller “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
¶ 20 On that basis, this court recently rejected a substantially similar facial constitutional
challenge to the AHC statute that defendant presents here, concluding that Bruen did not apply to
laws that attempted to regulate firearm possession by felons. See [CITATION]. In [CITATION], we found it significant that the majority opinion in Bruen repeated
the phrase “law-abiding” no fewer than 13 times. We further found that Bruen did not indicate any
intent to expand the second amendment’s protection to citizens who are not “law-abiding.” Id.
Moreover, we noted that the explicit holding in Bruen was that the New York statute violated the
fourteenth amendment because it prevented “ ‘law-abiding citizens with ordinary self-defense
needs from exercising their right to keep and bear arms.’ ” Id. (quoting Bruen, [CITATION]). We
stated, “[w]e presume that the Supreme Court’s inclusion of ‘law-abiding’ in the holding is not
superfluous or irrelevant, especially given the Court’s repeated use of the phrase throughout the
Bruen opinion, as well as its prior decisions.” Id.
¶ 21 Therefore, in light of our holding that the AHC statute was facially constitutional in [CITATION],
defendant’s facial challenge to that statute in this case must fail. See [CITATION],
¶ 10 (“A statute will be deemed facially unconstitutional only if there is no set of circumstances
under which the statute would be valid.”).
No. 1-23-1051
¶ 22 Defendant points out that in [CITATION], this court found that the defendant’s felon status was
“irrelevant” during the first step of its Bruen analysis and that the effect of the defendant’s prior
felony conviction on his second amendment right to possess a firearm was more appropriately
evaluated under the second step’s historical tradition analysis. [CITATION], ¶ 89. In [CITATION], the defendant claimed that the AHC statute was unconstitutional “as applied to
him.” Id. ¶ 1. It is well-settled that facial and as-applied constitutional challenges are not
interchangeable. [CITATION], ¶ 36. “An as-applied challenge requires a showing
that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” Id. Here, defendant raised only a facial challenge, which we determined above
is without merit.
¶ 23 Nevertheless, although we find it unnecessary to engage in a fulsome historical analysis, if
[SEGMENT 16]
we were to do so, defendant’s facial challenge would still fail. Under the second step of the Bruen
analysis, [CITATION] found ample historical support for the legislature’s ability to prohibit possession
of firearms by twice-convicted felons. [CITATION], ¶¶ 90-105. The
historical analogues included “widespread acceptance of the legislatures’ authority to disarm
felons” during the founders’ era. Id. ¶ 96. [CITATION] recognized a “historical tradition of legislatures
exercising their discretion to impose status-based restrictions disarming entire categories of
persons” and that “the founders understood that felons were one such group.” (Internal quotation
marks and citations omitted.) Id. ¶ 97.
¶ 24 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
was wrongly decided. We decline to revisit [CITATION] here. Rather, we will follow [CITATION] and reject
defendant’s facial challenge to the AHC statute under the second amendment. As defendant has
No. 1-23-1051
not shown that the AHC statute is unconstitutional, we affirm the circuit court’s dismissal of his
postconviction petition.
¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 26 Affirmed.
- 10 -
2024 IL App (1st) 230788-U
-23-0788
July 30, 2024
Second Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
RODNEY A. ALEXANDER, ) Appeal from the
) Circuit Court of
Petitioner-Appellee, ) Cook County.
)
v. ) No. 22 OP 76949
)
) Honorable
SYLVENIA L. ALEXANDER, ) Beatriz A. Frausto-Sandoval
) and Marina Ammendola,
Respondent-Appellant. ) Judges Presiding.
PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: Respondent’s appeal dismissed for lack of jurisdiction where notice of appeal was
untimely.
¶2 Respondent Sylvenia L. Alexander appeals pro se from the circuit court’s order of March
8, 2023, denying her second motion to vacate a one-year plenary order of protection against her 1-23-0788
and in favor of petitioner Rodney A. Alexander and their minor child, M.A. 1 We dismiss for lack
of jurisdiction.
¶3 The record on appeal comprises a single volume of common law record, from which we
have gleaned the following facts and procedural history.
¶4 On August 29, 2022, Rodney filed a pro se petition for an order of protection against
Sylvenia, his spouse, for himself and M.A, alleging that Sylvenia injured herself damaging
property and threatened to take M.A. to an undisclosed location. He further alleged that Sylvenia
was previously recommended for voluntary inpatient care. On the same day, the circuit court
entered an emergency order of protection, granting Rodney exclusive possession of the shared
residence and care and possession of M.A., and ordering Sylvenia to have no contact with Rodney
and M.A.
¶5 On August 30, 2022, Sylvenia filed an emergency motion to vacate the emergency order
of protection, arguing that she had “no family here, no place to go” and was “struggling with health
issues.”
¶6 On October 6, 2022, with both parties present via Zoom, the court modified the emergency
order of protection to include “no unlawful contact” and extended the order. On November 3,
2022, neither party appeared, and the court further extended the order of protection until December
9, 2022.
Since the parties share the same last name, we will refer to them by their first names.
Sylvenia also purports to appeal from an unspecified order that she claims was entered on January
9, 2023. As explained in this order, the record on appeal does not reflect that an order was entered on that
date.
The Honorable Beatriz A. Frausto-Sandoval entered the emergency and plenary orders of
protection. The Honorable Marina Ammendola presided over subsequent proceedings.
1-23-0788
¶7 On November 16, 2022, Rodney filed an emergency motion to modify the order of
protection to include control of the residence and no contact by Sylvenia, asserting that Sylvenia
violated the order of protection by locking him out of the residence. Rodney also expressed concern
for M.A.’s “safety and security.” The court granted Rodney’s motion, ordering Sylvenia to vacate
the residence since Rodney was granted exclusive possession.
¶8 On December 9, 2022, Rodney appeared but Sylvenia did not. The court entered a default
plenary order of protection, granting Rodney exclusive possession of the residence and physical
care and possession of M.A., and prohibiting any unlawful contact by Sylvenia for a period of one
year expiring December 8, 2023.
¶9 On December 22, 2022, Sylvenia filed a motion to vacate the default plenary order and
requested a hearing regarding the plenary order “based on petitioner[’s] testimony.” On January 3,
2023, with both parties present via Zoom, the court ordered that the plenary order would stand.
¶ 10 On January 6, 2023, Sylvenia filed a motion for substitution of judge, alleging that she had
not been able to present any evidence or testimony during the proceedings, and the court was “[n]ot
considering all factors for a determination to be given.” On January 9, 2023, she filed a motion to
vacate the default judgment. The court modified the order to include a parenting agreement on
January 27, 2023.
¶ 11 On February 24, 2023, Sylvenia filed another motion to vacate the default plenary order of
protection.
¶ 12 On March 8, 2023, with both parties present, the court denied Sylvenia’s second motion to
vacate the default plenary order of protection, stating that “respondent’s motion fail[ed] to provide
1-23-0788
any new facts or law” and that the court previously ruled on a motion to vacate. The court also
denied Sylvenia’s motion for substitution of judge, noting that it heard “extensive oral argument.”
¶ 13 Sylvenia filed a notice of appeal on May 2, 2023, listing January 9, 2023, and March 8,
2023, as the dates of the orders appealed.
¶ 14 On June 7, 2024, we entered an order taking this case for consideration on the record and
Sylvenia’s pro se brief only. See [CITATION].
¶ 15 At the outset, we observe that although Sylvenia purports to appeal from orders entered on
January 9 and March 8, 2023, the record on appeal does not show that the circuit court entered an
order on January 9, 2023. Rather, Sylvenia filed a motion to vacate the order of protection on that
date.
¶ 16 Turning to Sylvenia’s arguments on appeal, she claims that the circuit court erred in (1)
extending the order of protection on November 3, 2022; (2) entering a “mutual” order of protection
on November 14, 2022; (3) making libelous and slanderous remarks about Sylvenia; and (4)
exhibiting bias against Sylvenia.2
¶ 17 This court has an independent duty to consider its jurisdiction. [CITATION]. The filing of a notice of appeal initiates appellate review. [CITATION]. When the notice of appeal is untimely, the reviewing court
The record on appeal does not contain a copy of a “mutual” order of protection.
1-23-0788
does not have jurisdiction and must dismiss the appeal. [CITATION]
¶ 12.
¶ 18 Sylvenia appeals from the court’s March 8, 2023, order denying her motion to vacate the
plenary order of protection. An order of protection is injunctive, and “[a] motion to vacate a
protective order is considered one seeking to dissolve or modify an injunction.” [CITATION] Illinois Supreme Court Rule
307(a)(1) (eff. Nov. 1, 2017) allows an appeal from an interlocutory order “granting, modifying,
refusing, dissolving, or refusing to dissolve or modify an injunction.” Further, “the appeal must be
perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal.” Ill.
S. Ct. R. 307(a) (eff. Nov. 1, 2017).
[SEGMENT 17]
¶ 19 In this case, the circuit court denied Sylvenia’s second motion to vacate the default plenary
order of protection on March 8, 2023. Sylvenia did not file her notice of appeal until May 2, 2023,
beyond the 30-day period. Accordingly, since Sylvenia’s notice of appeal was untimely, we lack
jurisdiction to consider the merits of her appeal and must dismiss it. [CITATION]
¶ 20 For the foregoing reasons, we dismiss this appeal.
¶ 21 Dismissed.
2024 IL App (1st) 230968-U
No. 1-23-0968
Order filed July 8, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 3622
)
DASHAWN CARLDWELL, ) Honorable
) William G. Gamboney,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Justices Lavin and Coghlan concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for unlawful use or possession of a weapon by a
felon (UUWF) over his claim that the UUWF statute is facially unconstitutional
under the second amendment.
¶2 Following a bench trial, defendant Dashawn Carldwell was convicted of unlawful use or
possession of a weapon by a felon (UUWF) and sentenced to 4½ years’ imprisonment. On appeal,
he argues the UUWF statute under which he was convicted (720 ILCS 5/24-1.1(a) (West 2022)) No. 1-23-0968
is facially unconstitutional under the second amendment to the United States Constitution (U.S.
Const., amend. II). For the following reasons, we affirm.
¶3 Defendant was charged by indictment with, inter alia, UUWF based on knowingly
possessing a firearm after having previously been convicted of a felony.
¶4 At trial, Chicago police officer Isaiah Perez testified that, around 10:49 p.m. on March 7,
2022, he and two partners responded to a vehicle accident at the intersection of Division Street and
Cicero Avenue, in Chicago. He observed a crashed van at the north end of the intersection. As the
officers spoke to an occupant of the van, a woman approached and indicated that another vehicle
that had been involved in the accident was further north on Cicero. The officers drove north on
Cicero and Perez observed a crashed, unoccupied vehicle. A man approached and told the officers
that the person from that vehicle had run north on Cicero and then west on Potomac Avenue.
¶5 The officers drove to that area and Perez observed a man running north in an alley, “about
a street and a half” away from them. The officers drove into the alley and closed the distance.
When the officers were 100 to 300 feet from the man, he turned west into another alley. From 100
to 150 feet, Perez observed a dark, L-shaped object in the man’s hands that Perez believed was a
firearm. The man tossed the object over a fence. He continued running down the alley a short
distance, then stopped and raised his hands. The officers exited their vehicle and detained him.
Perez identified him in court as defendant. Officers ultimately recovered a loaded, black 9-
No. 1-23-0968
millimeter pistol from a backyard where Perez believed defendant had tossed the firearm. The
State published footage from Perez’s body-worn camera and he narrated the events depicted.1
¶6 The State entered stipulations that defendant had not been issued a valid firearm owner’s
identification card (FOID card) or concealed carry license (CCL), and he had previously been
convicted of a felony.
¶7 Following argument, the court found defendant guilty. The court denied defendant’s
motion for a new trial. Following a hearing, the court sentenced defendant to 4½ years’
imprisonment. The court denied defendant’s motion to reconsider the sentence.
¶8 On appeal, defendant argues that, in light of the United States Supreme Court’s decision in
[CITATION], the UUWF statute under
which he was convicted is facially unconstitutional under the second amendment to the United
States Constitution (U.S. Const., amend. II).
¶9 Whether a statute is constitutional is a question of law we review de novo. [CITATION] (citing [CITATION]).
¶ 10 Section 24-1.1(a) of the Criminal Code of 2012 provides:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
-1 of [the Criminal Code of 2012] or any firearm or any firearm ammunition if the person
has been convicted of a felony under the laws of this State or any other jurisdiction. This
The record on appeal does not include the correct video. Regardless, the video would have no
effect on our disposition of this appeal as defendant’s lone argument is that the statute under which he was
convicted is facially unconstitutional, an issue for which “[t]he particular facts related to the challenging
party are irrelevant.” [CITATION].
No. 1-23-0968
Section shall not apply if the person has been granted relief by the Director of the Illinois
State Police under Section 10 of the Firearm Owners Identification Card Act.” 720 ILCS
/24-1.1(a) (West 2022).
¶ 11 Defendant argues that the statute is unconstitutional under the second amendment on its
face. Facial challenges are “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional, and to rebut that presumption and show a statute is facially
unconstitutional, a party must establish that there are no circumstances under which the statute
could be validly applied. [CITATION], ¶ 10. “If it is reasonably possible
to construe the statute in a way that preserves its constitutionality, we must do so.” Id. A defendant
may challenge the constitutionality of a statute at any time, even for the first time on appeal. See
People v. Gunn, [CITATION], ¶ 8.
¶ 12 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” [CITATION]. In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION]. The Court
reiterated that its decision in [CITATION] “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” Id. at 786 (quoting [CITATION], 554 U.S. at
626-27).
No. 1-23-0968
¶ 13 Following Heller and McDonald, courts developed a two-step test for evaluating second
amendment challenges to firearm regulations. See [CITATION], ¶ 11. The first
step was considering whether the regulated activity fell within the scope of the second amendment
as it was originally understood. Id. If the government did not show the regulated activity was
outside the scope of the second amendment, the second step was conducting a “means-end
analysis.” (Internal quotation marks omitted.) Id. In that analysis, courts weighed the severity of
the regulation against the ends the government sought to achieve in enacting the regulation. Id.
¶ 14 However, in 2022 the Supreme Court issued Bruen, in which it announced a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]). The Court condemned the means-end analysis. Id. (citing [CITATION]).
Rather, under Bruen, where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
second amendment to mean. [CITATION], ¶ 70 (citing [CITATION]).
¶ 15 Initially, the State responds that in this case we need not reach the analytical framework
that Bruen provided. The State notes that [CITATION] concerned a portion of a New York statute that
[SEGMENT 18]
only issued licenses to carry a firearm outside one’s home or place of business to those who showed
that “proper cause” existed. [CITATION]. The Court differentiated such a “may-issue”
licensing regime from states that had “shall-issue” licensing regimes, in which the state issues a
No. 1-23-0968
license whenever the applicant meets certain, objective requirements. Id. at 38 n. 9. [CITATION] noted
that nothing in its decision “should be interpreted to suggest the unconstitutionality” of any “shall-
issue” licensing regime. Id.
¶ 16 Following [CITATION], in [CITATION], we rejected an argument that the aggravated unlawful use of a
weapon statute (720 ILCS 5/24-1.6(a) (West 2020)) was facially unconstitutional because it
criminalized possessing a firearm if the possessor was in noncompliance with the Firearm Owners
Identification Card Act (430 ILCS 65/1 et seq. (West 2020)) or Firearm Concealed Carry Act (430
ILCS 66/1 et seq. (West 2020)). [CITATION], ¶¶ 7, 19, 29-30. We found in
[CITATION] that those acts were “shall-issue” licensing programs of the type that [CITATION] had approved,
and the aggravated unlawful use of a weapon statute was therefore not unconstitutional for
criminalizing the possession of a firearm by a person in noncompliance with the acts. Id. ¶¶ 14-
30.
¶ 17 The State notes that those acts prohibit those who have been convicted of a felony from
obtaining a FOID card or CCL. 430 ILCS 65/8(c) (West Supp. 2021); 430 ILCS 66/25(2) (West
2022). The State maintains that we may therefore reject defendant’s facial challenge to the UUWF
statute without reaching any of the analytical steps provided by [CITATION] as, like those acts, the
UUWF statute prevents felons from carrying firearms. Although we recognize that the UUWF
statute provides that it does not apply if a felon “has been granted relief by the Director of the
Illinois State Police” pursuant to the Firearm Owners Identification Card Act (720 ILCS 5/24-
1.1(a) (West 2022)), we are not convinced that [CITATION] and [CITATION]'s discussion of licensing schemes
should control here. See [CITATION], ¶ 79 n. 11 (rejecting State’s request
to find [CITATION] inapplicable to similar statute based on [CITATION]'s endorsement of shall-issue licensing
No. 1-23-0968
regimes). In any case, the outcome of this appeal would not differ, as the UUWF statute is
constitutional under Bruen’s analytical framework.
¶ 18 Thus, we turn to the analysis provided by Bruen. Again, the first question under Bruen is
whether the second amendment’s plain text covers the conduct at issue. [CITATION] at 24. If
it does, the second question is whether the government has demonstrated that the regulation
comports with our national historical tradition of firearm regulation. Id.
¶ 19 Here, defendant claims that the conduct prohibited by the UUWF statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
protected. We disagree. Bruen did not provide that the second amendment granted an unrestricted
right to carry firearms. Rather, it explained that:
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [Citation.] Those
restrictions, for example, limited the intent for which one could carry arms, the manner by
which one carried arms, or the exceptional circumstances under which one could not carry
arms, such as before justices of the peace and other government officials.” Id. at 70.
¶ 20 In [CITATION], and Bruen, the Supreme Court established that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] at 8-10 (agreeing
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also [CITATION] at 635 (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); [CITATION] at
786 (reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
====== End of Part of Court Ruling ====== No. 1-23-0968
¶ 21 In two recent cases we rejected as-applied constitutional challenges to the UUWF statute
on that basis, concluding that Bruen did not apply to laws that attempted to regulate firearm
possession by felons. See [CITATION], ¶ 37 (noting that the justices
in the Bruen majority repeated the phrase “law-abiding” 18 times in their majority opinion and
concurrences); [CITATION], ¶¶ 27-28 (agreeing with [CITATION] and
noting that Heller suggested that felons did not maintain second amendment rights). As we held
that the UUWF statute could be validly applied to the defendants in [CITATION] and [CITATION], defendant’s
facial challenge to the statute must fail. See [CITATION], ¶ 10 (a statute is only
facially unconstitutional if there are no circumstances under which it could be validly applied); see
also [CITATION], ¶¶ 18-22 (following [CITATION] to reject facial
challenge to UUWF statute).
¶ 22 Defendant requests we depart from our holdings in [CITATION] and [CITATION] and instead follow
the reasoning in [CITATION], ¶¶ 88-89, which found that under the first step
of the two-part Bruen analysis, the second amendment protects the conduct of possessing a firearm,
regardless of the possessor’s felon status. See id. at 89 (reasoning that the first step under Bruen
“does not contemplate the actor or the subject” and so “the defendant’s status as a felon is irrelevant
at this stage of the analysis.”) We decline defendant’s invitation to follow [CITATION] with respect to
the first part of the Bruen analysis. That said, even were we to depart from the holdings in [CITATION]
and [CITATION], we would still find defendant’s facial challenge unavailing under the next step of
Bruen’s analytical framework, as there is sufficient historical precedent to ban felons from
possessing firearms.
No. 1-23-0968
¶ 23 Another district of this court recently considered and rejected a defendant’s facial challenge
to the UUWF statute under the second step of the Bruen analysis. [CITATION]. In [CITATION], the court reiterated that the Supreme Court in Heller and Bruen explained
“the right to bear arms has never been unlimited,” but “ ‘[t]hroughout modern Anglo-American
history,’ ” had been “ ‘subject to well-defined restrictions.’ ” Id. ¶ 27 (quoting Bruen, 597 U.S. at
38). Further, although felons were not broadly prohibited from possessing firearms until the
twentieth century, “such laws evolved from preexisting prohibitions restricting access to firearms,”
including by certain groups of people. Id. ¶¶ 28-29. In colonial America, for example, legislatures
“ ‘disarm[ed] individuals whose status indicated that they could not be trusted to obey the law.’ ”
Id. ¶¶ 30-31 (quoting [CITATION]). In [CITATION], the court therefore
concluded that, under Bruen, there was sufficient historical precedent to make the UUWF statute
facially constitutional, which it also noted had almost no effect on any law-abiding citizen’s right
to armed self-defense. Id. ¶¶ 32-33.
¶ 24 We also find instruction in [CITATION], in which we rejected an as-applied constitutional
challenge under Bruen to the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2016)
(criminalizing possession of firearms after twice being convicted of certain felonies)). [CITATION].
Although [CITATION] concluded (under the first step of Bruen
analysis) that the second amendment encompassed the conduct at issue, this court proceeded to
find (under the second step of the Bruen analysis) that there was ample historical support for the
legislature’s ability to prohibit possession of firearms by twice-convicted felons. Id. ¶¶ 90-105.
The historical analogues included “widespread acceptance of the legislatures’ authority to disarm
felons” during the founders’ era. Id. ¶ 96. [CITATION] recognized a “historical tradition of legislatures
No. 1-23-0968
exercising their discretion to impose status-based restrictions disarming entire categories of
persons” and that “the founders understood that felons were one such group.” (Internal quotation
marks and citations omitted.) Id. ¶ 97.
¶ 25 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
[SEGMENT 19]
is wrongly decided.2 We decline to revisit [CITATION] here. Rather, we will follow [CITATION], and [CITATION], and reject defendant’s facial challenge to the UUWF statute under the second
amendment. As defendant has not shown that the UUWF statute is unconstitutional, we affirm his
conviction.
¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 27 Affirmed.
Defendant does not discuss [CITATION], which was decided on April 19, 2024, after defendant filed
his initial brief and the State filed its response brief, but before defendant filed his reply brief on May 2,
2024.
- 10 -
==================================
2024 IL App (1st) 231877-U
No. 1-23-1877
Order filed June 26, 2024
THIRD DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
IN THE INTEREST OF R.W., a minor )
)
(THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Petitioner-Appellee, ) No. 22 JD 01971
)
v. ) Honorable
) Daryl Jones,
R.W., ) Judge, Presiding.
)
Respondent-Appellant.) )
JUSTICE D.B. WALKER delivered the judgment of the court.
Justices Lampkin and Van Tine concurred in the judgment.
ORDER
¶1 Held: The pertinent aggravated unlawful use of a weapon and unlawful possession of a
firearm statutes are constitutional, the evidence presented against respondent was sufficient
to uphold his conviction, and the judge’s admonishment was not in error. We affirm the
circuit court’s order.
¶2 After a bench trial, juvenile respondent R.W. was adjudicated delinquent on two charges
of aggravated unlawful use of a weapon (AUUW) based on his possession of a firearm while
====== End of Document ====== No. 1-23-1877
being under the age of 21 and his possession of a firearm without a valid Firearm Owner’s
Identification (FOID) Card. He was also adjudicated delinquent on one charge of unlawful
possession of a firearm (UPF) based on his possession of a concealable firearm while under
the age of 18. On appeal, he argues (1) that the statutes under which he was convicted are
unconstitutional, (2) that the circuit court erred when it denied his motion for a directed
finding of not guilty, (3) that the evidence presented at trial was insufficient to sustain his
conviction, and (4) that the judge improperly admonished him of his right to testify on his
own behalf.
¶3 I. BACKGROUND
¶4 Officer Audrey Webb of the Chicago Police Department testified that, on December 11,
, he was on patrol, riding in the rear passenger seat of an unmarked police car. At around
:00 p.m., Officer Webb saw respondent walking down the street with a bulge in the center
pocket of his hoodie. Officer Webb stated that his previous experience indicated that such a
bulge often indicated that an individual was attempting to conceal a weapon. Officer Webb
made eye contact with respondent, who “quickly put his hands in his hoodie pocket [in] what
we thought [was] an attempt to conceal a bulge.”
¶5 Officer Webb exited the vehicle and instructed respondent to approach him. Respondent
appeared reluctant to approach and pulled out “a bag of some sort of chips.” Officer Webb
asked him where he was going and felt the front of his hoodie. Although the hoodie felt
empty, respondent “bladed his stance away from [Officer Webb]” at that moment. Officer
Webb explained that “blading his stance” meant respondent turning his body to obstruct the
officer’s view of one side of his body. After blading his stance, respondent fled on foot down
the street and Officer Webb pursued on foot under the belief that he was concealing an illegal
No. 1-23-1877
firearm. At no point during the ensuing 30 second chase did the officer lose sight of
respondent. As respondent fled, Officer Webb saw him pull a black object from his
waistband and throw it toward a car parked along the street. About two to five seconds later,
the officer found and recovered a black Glock handgun with a blue handle where the black
object had been tossed. He abandoned the chase and lost sight of respondent while he
recovered the weapon, but “heard commotion through an open gate” nearby. Upon
investigating the commotion, he found his partner, Officer Alvarez, apprehending
respondent, whom he recognized because he was wearing the same clothes he had been
wearing moments before. The events leading up to respondent’s arrest were captured on
Officer Webb’s body-worn camera as well and that video was admitted as evidence.
¶6 Officer Webb testified that respondent had stated at some point during their interaction
that he was 17 years old. The following testimony was given regarding the question of
whether respondent possessed a FOID Card:
“PROSECUTION: In processing the minor, did you learn whether or not he had a
valid FOID or CCL Card?
OFFICER WEBB: Yes. And also due to him being 17 years old, he was unable to
obtain a CCL and a FOID.
PROSECUTION: Okay.”
¶7 After Officer Webb’s testimony, the State rested and respondent moved for a directed
finding of not guilty, asserting that the State had not presented sufficient evidence to
establish that he did not have a valid FOID Card. The circuit court responded that, “[i]n
viewing the evidence in the light most favorable to the State, which I’m required to do at this
time point, I am going to deny the motion.”
No. 1-23-1877
¶8 After a brief pause following the court’s ruling on the motion, the following exchange
occurred:
“DEFENSE COUNSEL: Judge – Judge, I talked to the minor earlier today, you
know, about his right to testify. That it was his right to remain silent. That is, you
know, solely his choice that only he can decide.
And now I believe it’s my understanding that he does not want to testify. Is that
correct that you don’t want to get up and talk?
(Discussion off the record.)
COURT: All right. And that’s right. [Respondent], this is your decision. You have
your attorney here that’s here to represent you, but this is the decision that you get to
make so you have the right to testify, and you have the right not to testify. You
understand that? You’re nodding your head yes.
RESPONDENT: I would like to testify to my innocence.
COURT: You would like to testify? Okay.
DEFENSE COUNSEL: You want to get up and talk?
COURT: So the minor said that he would like to testify.
DEFENSE COUNSEL: Okay. Your Honor, we call [respondent].”
¶9 Respondent testified that he lived on the street where he was arrested and had gone to the
store, where he had purchased a bag of chips. He was returning home when a police officer
spoke to him. He showed the bag of chips to the officer. He ran from the officer because he
was scared for his life and did not know what was about to happen. Respondent tried to run
home to his parent and was apprehended on the porch of his home. He denied throwing a
No. 1-23-1877
weapon onto the ground, that he ever had a weapon, and that he had ever seen the weapon
that had allegedly been in his possession.
¶ 10 On cross-examination, when asked why he was afraid for his life, respondent stated that
he very much did not like being touched and did not want the officer to touch him. He had
already shown the officer what the bulge was and was free to run if he so desired.
Respondent stated that Officer Webb grabbed him firmly with both hands, but admitted that
the body-worn camera footage showed the officer only using one hand. Respondent stated
that “the video been looking different” and “could be edited like.” Respondent expressed
concern that, since the police car was unmarked, its stopping could have indicated that
someone was going to shoot from inside the vehicle. The entirety of the questioning of
respondent regarding issuance and possession of a FOID Card was as follows:
“PROSECUTION: Do you have a valid FOID Card?
RESPONDENT: No.”
¶ 11 The circuit court adjudicated respondent delinquent on all three counts and sentenced him
to six months of probation. Respondent timely appealed and this appeal follows.
¶ 12 II. ANALYSIS
¶ 13 Respondent argues (1) that the statutes under which he was convicted are
unconstitutional, (2) that the circuit court erred when it denied his motion for a directed
[SEGMENT 20]
finding of not guilty, (3) that the evidence presented at trial was insufficient to sustain his
conviction, and (4) that the judge improperly admonished him of his right to testify on his
own behalf.
No. 1-23-1877
¶ 14 A. Constitutionality
¶ 15 Respondent asserts that the precedent established by the Supreme Court in New York
State Rifle & Pistol Ass’n, Inc. v. [CITATION], 597 U.S. 1, 142 S. Ct. 2111 (2022), rendered several
statutory provisions unconstitutional, both facially and as applied to him. Specifically
sections 24-1.6(a)(3)(C) and 24-1.6(a)(3)(I) of the Criminal Code of 1961, which are part of
the larger AUUW statute; the former section prohibits carrying a firearm without a FOID
card and the latter prohibits possession of a handgun by a person under 21 years of age
except where “the person under 21 is engaged in lawful activities under the Wildlife Code.”
ILCS 5/24-1.6(a)(3)(C) (West 2022), 720 ILCS 5/24-1.6(a)(3)(I). Respondent also
challenges the post-[CITATION] constitutionality of section 24-3.1(a)(1) of the Criminal Code of
, which defines the offense of unlawful possession of firearms and firearm ammunition
and prohibits possession of “any firearm of a size which may be concealed upon the person”
by an individual under 18 years of age. 720 ILCS 5/24-3.1(a)(1) (West 2022).
¶ 16 “Statutes are presumed constitutional, and to rebut that presumption, the party
challenging a statute’s constitutionality has the burden of establishing a clear violation.”
[CITATION], 2021 IL 125889, ¶ 10. “The distinction between facial and as-applied
constitutional challenges is critical.” [CITATION], 2018 IL 121932, ¶ 38. “A party
raising a facial challenge must establish that the statute is unconstitutional under any possible
set of facts, while an as-applied challenge requires a showing that the statute is
unconstitutional as it applies to the specific facts and circumstances of the challenging party.”
Id. “If it is reasonably possible to construe the statute in a way that preserves its
constitutionality, we must do so.” [CITATION], 2021 IL 125889, ¶ 10.
No. 1-23-1877
¶ 17 The State argues that because respondent did not raise his as-applied challenge before the
circuit court and therefore the circuit court did not hold an evidentiary hearing on the
constitutional question, the argument is forfeited on appeal. Respondent, predicting this
argument, asserts that the factual record is sufficiently developed and no evidentiary hearing
was necessary. [CITATION], by reference to [CITATION], supports respondent’s argument, because just
as in [CITATION], the key findings of fact, in this case whether respondent was under the ages of
and 18, and whether he possessed a firearm, were sufficiently established in the circuit
court. [CITATION], ¶44 (citing [CITATION] (abrogated on
other grounds by [CITATION])). A facial challenge, on the other hand,
may be raised at any time, regardless of whether a posttrial motion was filed. [CITATION].
¶ 18 The second amendment of the U.S. Constitution reads: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear Arms, shall
not be infringed.” U.S. Const., amend. II.
¶ 19 Respondent’s contention, that the fact that Bruen “rejected means-end scrutiny in favor of
an exclusively historical approach” renders the relevant statutes unconstitutional, relies on
premises that have already been sufficiently addressed in this court. This court has previously
addressed the validity of the FOID card requirement, finding that Bruen explicitly condoned
background checks, which are the cornerstone of the FOID act, and, indeed, only found
unconstitutional New York’s “proper cause” requirement. [CITATION] Accordingly, respondent’s challenge to the more general requirement that a
firearm carrier be issued a valid FOID card fails as well. The remainder of respondent’s
constitutional challenges are addressed by this court’s holding in [CITATION]
No. 1-23-1877
App (1st) 220455, and we see no need to repeat it at great length here. As we held in
[CITATION], our supreme court has already twice found that there is sufficient historical
precedent to establish that individuals under the age of 21 are outside the scope of the Second
Amendment. Id, ¶ 58 (citing [CITATION], ¶ 25 and [CITATION], ¶ 38). We believe that the history supporting our supreme court’s findings
in those cases has not changed in the intervening years. Although [CITATION] did not address the
UPF statute, its logic equally applies, as it is also an age-based restriction on individuals who
fall outside the scope of the Second Amendment. Accordingly, respondent’s facial challenge
fails and, as no set of facts can establish the unconstitutionality of the statute, neither can
respondent’s particular circumstances in his as-applied challenge. As such, we find that the
statutes under which respondent was charged are constitutional, both facially and as applied
to him.
¶ 20 B. Motion for Directed Finding
Respondent argues that the circuit court erred by denying respondent’s motion for a
directed finding. The motion in question was filed at the close of the State’s evidence and
asserted that the State had not presented competent evidence that respondent did not have a
valid FOID card at the time of the alleged offense. Respondent acknowledges that he failed
to renew his motion at the close of both parties’ evidence, as required. [CITATION]. Respondent asks that we nonetheless review the alleged error under
the plain-error doctrine, or else that we review the failure to renew the motion as ineffective
assistance of counsel.
¶ 21 Under the plain-error doctrine, a “narrow and limited exception” can allow for review of
an otherwise-forfeited claim where the appellant can demonstrate plain error. [CITATION]
No. 1-23-1877
Hillier, [CITATION]. The first hurdle that an appellant must surmount to
establish plain error is to “show that a clear or obvious error occurred.” Id. The first prong
that must be satisfied to demonstrate that trial counsel was ineffective is to show that one’s
“attorney’s actions constituted errors so serious as to fall below an objective standard of
reasonableness.” [CITATION].
¶ 22 A motion for a directed finding asserts that “as a matter of law, the evidence is
insufficient to support a finding or finding of guilty.” [CITATION]. “[S]uch a motion asks whether the State’s evidence could support a finding of
guilty beyond a reasonable doubt, not whether the evidence does in fact support that finding.”
Id. As the question presented to us is one of law, our standard of review is de novo. [CITATION].
¶ 23 Here, the question before us is whether the evidence was sufficient to support a factual
finding that respondent had not been issued a FOID card that was valid at the time of the
offense. 720 ILCS 5/24-1.6(a)(3)(C) (West 2022). At the time the motion for a directed
finding was made, the sum of the evidence to that end was the following testimony from the
officer who processed respondent upon his arrest:
“STATE: In processing the minor, did you learn whether or not he had a valid FOID
or CCL card?
OFFICER WEBB: Yes. And also due to him being 17 years old, he was unable to
obtain a CCL and a FOID.
STATE: Okay.”
¶ 24 Respondent asserts that the statement from Officer Webb is an incorrect legal conclusion
as to respondent’s eligibility for FOID and CCL cards at the time of the offense. While that is
No. 1-23-1877
one valid interpretation of the statement, the statement could also be interpreted in other
ways. One could interpret the affirmative answer to mean that he was able to confirm
whether or not he had been issued a card and the statement that followed, even if it was in
fact an incorrect legal conclusion, to clearly suggest that respondent had not been issued a
valid FOID card. Alternatively, one could interpret the affirmative answer to mean that he
was able to determine whether he had been issued a card and the statement that followed to
mean that he had in fact been unsuccessful in obtaining a FOID card due to his age and an
implied lack of consent from his parents. As a reasonable mind could fairly conclude
respondent’s guilt with regard to this particular element of the offense based on that
testimony, we cannot find that the circuit court erred when it denied the motion for a directed
finding. Accordingly, as it was not properly preserved, respondent’s claim regarding the
[SEGMENT 21]
motion for a directed finding is forfeited on appeal.
¶ 25 C. Sufficiency of the Evidence
¶ 26 Respondent argues that even if the circuit court did not err by denying his motion for a
directed finding, the evidence regarding whether he had been issued a FOID card was
insufficient to support a conviction.
¶ 27 “In reviewing a sufficiency of the evidence claim, a reviewing court must determine
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” (emphasis in original) (internal quotation marks omitted.) [CITATION]. “All reasonable inferences from the evidence must be drawn in
favor of the prosecution.” [CITATION]. “In weighing evidence,
the trier of fact is not required to disregard inferences which flow normally from the evidence
No. 1-23-1877
before it, nor need it search out all possible explanations consistent with innocence and raise
them to a level of reasonable doubt.” [CITATION]
¶ 28 “When considering a challenge to the sufficiency of the evidence, it is not the function of
the reviewing court to retry the defendant.” [CITATION] “The testimony of a single witness, if positive and credible, is sufficient to convict,
even though it is contradicted by the defendant.” (Internal Citation Omitted.) Id. “A
reviewing court will not reverse a conviction simply because the evidence is contradictory or
because the defendant claims a witness was not credible.” Id. A reviewing court “will not
reverse a criminal conviction unless the evidence is so unreasonable, improbable, or so
unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” [CITATION]
¶ 29 The same potential inferences that allow for the circuit court’s denial of respondent’s
motion for a directed finding similarly prove sufficient under this analysis. In addition,
respondent chose to take the stand himself and, when asked, stated that he did not have a
valid FOID card.This phrase could be interpreted to mean that although he may have had a
valid FOID card at the time of the offense, he did not have one at the time of his testimony.
That said, it would also be reasonable, in the context of a trial in which the question of
whether he had a valid FOID Card at the time of the offense was a crucial question, to
interpret the question and response to be referring to the time of the offense, even if the
question was inartfully phrased. Drawing all inferences in favor of the prosecution, the
evidence presented was sufficient for a rational trier of fact to find that respondent lacked a
valid FOID Card at the time of the offense. Accordingly, the evidence presented was
sufficient to sustain respondent’s adjudication.
No. 1-23-1877
¶ 30 D. Admonishment
¶ 31 Respondent argues that the circuit court improperly admonished him regarding his right
to testify or not testify, and thereby infringed upon his fourteenth amendment due process
right to a fair trial where such admonishment prejudiced the outcome of the trial. U.S. Const.,
amend. XIV.
¶ 32 Respondent acknowledges that he failed to preserve this error via objection and a post-
trial motion, but asks that we review it nonetheless, either under plain-error review or under a
lowered standard applicable to potential judicial misconduct. Respondent is correct that “a
less rigid standard of waiver applies when the issue involves potential misconduct by a trial
judge.” [CITATION]. As the alleged error here
concerns the circuit court’s behavior, we will review the alleged error. [CITATION]. As this is a question of law, our standard of review is de novo.
[CITATION].
¶ 33 Respondent devotes considerable effort to demonstrating that the admonition from the
circuit court was unnecessary but fails to show that unnecessary equates in any way to
improper. We fail to see any legal pertinence to that element of respondent’s claim.
¶ 34 Respondent cites four cases on this subject. All four concern instances in which a
defendant chose not to testify after an admonition, or lack thereof, from the circuit court. Id.,
[CITATION]. Of those, Smith and Medina cite to a federal case,
Martinez, for its explanation of why a circuit court is not required to admonish a defendant
regarding his right to testify, most notably, in this case, the third of seven enumerated
reasons: “Third, by advising the defendant of his right to testify, the court could influence the
No. 1-23-1877
defendant to waive his right not to testify, thus threatening the exercise of this other,
converse, constitutionally explicit and more fragile right.” (internal citation omitted)
(emphasis in original) [CITATION]. In all three cases, this
warning, that a circuit court’s admonition might sway the defendant, is presented as a reason
that such an admonition is not required, not as a reason that such an admonition is improper.
[CITATION]. However, even if we were to
accept that all of the caselaw concerning defendants who waived their right to testify after an
admonition from the circuit court applies equally to defendants who choose to testify after an
improper admonition, the circuit court’s admonishment in this case does not rise to the level
of impropriety.
¶ 35 Vaughn is instructive on this matter:
“[I]t is the defense counsel’s responsibility to advise a defendant about his right to
testify and explain any advantages or disadvantages of that right. However, the
ultimate decision of whether to testify is made by the defendant.
When a defendant is represented by counsel, it is left to the discretion of the trial
court whether to inform the defendant of the right against self-incrimination. If a trial
court chooses to advise a witness of his rights, the trial judge must walk the fine line
between, on the one hand, fully advising the witness of the danger of self-
incrimination and the right not to testify, and, on the other hand, threatening the
witness to an extent which materially impairs the defendant’s due process right to
present witnesses in his defense.
A defendant is deprived of his due process right to a fair trial if the judge’s
admonitions cause the defendant not to testify and are improper, thereby prejudicing
No. 1-23-1877
the outcome of the trial. In other words, even if the remarks are improper and cause
the defendant not to testify, a defendant is not deprived of his due process right to a
fair trial unless it affects the outcome of the trial.” (internal quotations omitted)
(internal citations omitted) [CITATION], 354 Ill. App. 3d at 925.
¶ 36 “The specific facts and circumstances of the case must be considered to determine
whether the admonitions are improper.” Id. Examples provided in [CITATION] include where the
trial judge threatened a witness with an indictment for perjury; where a judge editorialized
that it would be “foolish” for a witness to testify; where the admonitions are based on
mistaken facts of a plea bargain; where they are excessive, “such as where a judge informs a
witness of his right not to testify on six occasions even though the witness indicated on more
than three occasions that he wished to testify;” and where a judge’s admonitions “indicate the
judge is no longer acting in the role of a neutral decision-maker.” Id. at 925-26.
¶ 37 The scenario presented in the case at bar does not even loosely resemble any of the
examples presented in [CITATION]. Here, the following exchange is what respondent presents as
improper:
“DEFENSE COUNSEL: Judge – Judge, I talked to the minor earlier today, you
know, about his right to testify. That it was his right to remain silent. That is, you
know, solely his choice that only he can decide.
And now I believe it’s my understanding that he does not want to testify. Is that
correct that you don’t want to get up and talk?
(Discussion off the record.)
COURT: All right. And that’s right. [Respondent], this is your decision. You have
your attorney here that’s here to represent you, but this is the decision that you get to
No. 1-23-1877
make so you have the right to testify, and you have the right not to testify. You
understand that? You’re nodding your head yes.
RESPONDENT: I would like to testify to my innocence.
COURT: You would like to testify? Okay.
DEFENSE COUNSEL: You want to get up and talk?
COURT: So the minor said that he would like to testify.
DEFENSE COUNSEL: Okay. Your Honor, we call [respondent].”
¶ 38 At the beginning of the exchange, defense counsel seeks to confirm with the respondent
that he did not wish to testify. At no point on the record does respondent confirm this. After a
conversation off the record, the court seemed to confirm a statement from another individual,
presumably respondent or defense counsel, stating that it was respondent’s choice. The
circuit court presented the right to testify and not to testify equally, with no emphasis or
[SEGMENT 22]
indication that either was preferable or superior. After the circuit court asked respondent if he
understood, respondent stated that he would like to testify. It is difficult to conceive of a
more neutral stance from the court. To find that this admonition was improper would render
any admonition from the circuit court improper where the respondent’s decision to testify
ultimately resulted in testimony that could be interpreted to be against his or her own interest.
Were that the supreme court’s intent, it would have found an admonition from the circuit
court to be impermissible, not merely unnecessary.
¶ 39 Additionally, the only prejudicial effect that respondent suggests resulted from his
testimony is that he testified that he did not have a FOID card. As that fact had already been
established by Officer Webb’s testimony, we see no clear prejudice from respondent’s choice
to testify. Accordingly, we find no error on the part of the circuit court.
No. 1-23-1877
¶ 40 III. CONCLUSION
¶ 41 For the foregoing reasons, we affirm respondent’s adjudication.
¶ 42 Affirmed.
2024 IL App (1st) 221178-U
No. 1-22-1178
Filed May 30, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 CR 1375
)
MICHAEL SANTILLANES, ) Honorable
) Joseph M. Claps,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: Aggravated unlawful use of a weapon conviction affirmed over facial constitutional
challenge.
¶2 Following a bench trial, Michael Santillanes was convicted of three counts of aggravated
unlawful use of a weapon (AUUW) and sentenced to two years in prison. On appeal, he asserts
the provision of the AUUW statute that criminalizes possession of a firearm in public without
having been issued a valid firearm owner’s identification (FOID) card is facially unconstitutional No. 1-22-1178
in light of the United States Supreme Court’s decision in [CITATION]. We disagree and affirm the conviction. 1
¶3 I. BACKGROUND
¶4 At trial, Andrew Szparkowski testified his car broke down near the intersection of West
67th Street and South Keating Avenue in Chicago on the evening of December 27, 2019. As
Szparkowski was examining his car’s engine, a man he identified as Santillanes stepped down
from a Hummer SUV parked nearby. Santillanes approached Szparkowski and told him to get out
of the neighborhood. Szparkowski replied that he was waiting for a friend who was on his way
and that he would leave once they jumpstarted the car. Santillanes said that was fine and began
walking away. He turned, however, and pointed a handgun at Szparkowski, telling him there would
be bullet holes in his car if it were not gone by morning. Szparkowski called the police a short time
later.
¶5 Chicago Police Officer Evans 2 testified he responded to Szparkowski’s call. Upon reaching
the location, he observed a Hummer SUV parked on the street. Officer Evans approached the
passenger side of the vehicle, where he found Santillanes, the sole occupant, seated. A search of
Santillanes’s person revealed nothing, but Officer Evans discovered a Taurus 9mm semi-automatic
handgun on the rear seat. A computer inquiry revealed Santillanes did not have a valid FOID card
or concealed carry license (CCL). The Hummer SUV was not registered to Santillanes, and the
handgun was not registered to anyone.
¶6 The parties stipulated that Santillanes did not possess a valid FOID card or CCL at the time
of the offense. Santillanes did not testify or present any evidence.
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
appeal has been resolved without oral argument upon the entry of a separate written order.
The record does not contain Officer Evans’s first name.
No. 1-22-1178
¶7 The trial court found Santillanes guilty of three counts of AUUW: one count premised on
lack of a CCL and FOID card, the second premised on lack of a CCL, and the third premised on
the lack of a FOID card. The court acquitted him of a fourth count, which alleged he made a threat
of violence against Szparkowski. The court sentenced Santillanes to two years in prison on the
count premised on the lack of a FOID card. The other two counts merged. This appeal followed.
¶8 II. ANALYSIS
¶9 Santillanes argues that, based on Bruen, criminalizing the public carrying of a firearm
without a valid FOID card violates the Second Amendment. For that reason, Santillanes asserts
that his AUUW conviction must be vacated. In his opening brief, Santillanes takes issue with the
FOID Card Act’s (430 ILCS 65/0.01 et seq. (West 2018)) requirements, which are a precondition
for a person to lawfully acquire or possess a firearm in Illinois. He contends the requirement to
obtain a FOID card burdens the right to carry firearms in public for self-defense. Santillanes then
argues that historical tradition from the 18th and 19th century precludes burdening that right by
requiring a person to first obtain a license. He also submits that historical firearm regulation was
not punitive but either required certain persons to post a surety or imposed small fines. Santillanes
further insists that a footnote in the Bruen decision—appearing to approve of state firearm “shall
issue” licensing schemes like the one in Illinois—is dicta and should not control the issue.
¶ 10 In his reply brief, however, Santillanes states that he is not asserting an “ ‘unqualified
right’ ” to public carry “that cannot be burdened by any restriction whatsoever.” He also observes
that the State’s counterarguments are “overly focused on the perspective of an applicant seeking a
license under the FOID Card Act” and explains that his challenge pertains to “the punitive AUUW
statute under which he was convicted.” Santillanes then emphasizes a comparison between those
penalties imposed by historical regulations versus the criminal AUUW statute.
No. 1-22-1178
¶ 11 The arguments in Santillanes’s briefs are not consistent. He initially asserts his challenge
is to the criminalization of possessing a firearm without a FOID card, but he then devotes much of
his brief to attacking the FOID Card Act itself as burdening the right to bear arms. In contrast,
Santillanes’s reply brief suggests he is not challenging the FOID Card Act, but only the penalty for
violating it, which is contained in the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West
)). This inconsistency makes our review difficult, as it is unclear what precise question is
before us. We are entitled to have issues clearly defined with pertinent authority and coherent
arguments presented. [CITATION], ¶ 50. Nevertheless, Santillanes asserts his claim is a facial challenge to the portion of the AUUW
statute making firearm possession without a FOID card a criminal offense subject to criminal
penalties, including imprisonment.
¶ 12 Facial challenges to a statute may be raised at any time. [CITATION], ¶ 13. A party raising a facial challenge must establish that the statute is unconstitutional under any
possible set of facts. [CITATION], ¶ 38.
¶ 13 The Bruen decision “announced a new analytical framework for evaluating the
constitutionality of firearm regulations.” [CITATION], ¶ 68.
Previously, if the regulated activity fell within the scope of the Second Amendment, courts could
weigh the severity of a firearm regulation—the means—against the ends the government sought
to achieve. Id. ¶ 67. In Bruen, the Supreme Court condemned any means-ends analysis and instead
required the government to “ ‘justify its regulation by demonstrating that it is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. ¶ 69 (quoting Bruen, 597 U.S. at 24).
¶ 14 Under the Bruen framework, the government must point to a historical representative
analogue from before, during, and after the Nation’s founding as precedent to justify its firearm
No. 1-22-1178
regulation. Id. ¶¶ 70-71. The historical analogue need not be exact, but should be “ ‘relatively
similar’ ” to the challenged modern-day regulation. Id. ¶ 72 (quoting [CITATION]). The
[SEGMENT 23]
inquiry would turn on “whether the ‘modern and historical regulations impose a comparable
burden on the right of armed self-defense and whether that burden is comparably justified.’ ” Id.
¶ 73 (quoting [CITATION]).
¶ 15 In [CITATION], the Court struck down New York’s licensing regime that required applicants to
demonstrate “some additional special need” to carry a handgun publicly, rather than “issu[ing]
licenses to carry based on objective criteria.” [CITATION]. The Court differentiated
between “may-issue” licensing regimes like New York’s, where “authorities have discretion to
deny concealed-carry licenses even when the applicant satisfies the statutory criteria,” and
“shall-issue” licensing regimes in 43 states, where “authorities must issue concealed-carry licenses
whenever applicants satisfy certain threshold requirements, without granting licensing officials
discretion to deny licenses based on perceived lack of need or suitability.” Id. at 13-14. The Court
included Illinois among the 43 “shall-issue” regimes. Id. at 13 n.1. In a footnote, the Court stated:
“To be clear, nothing in our analysis should be interpreted to suggest the
unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general
desire for self-defense is sufficient to obtain a [permit].’ [CITATION.] Because these licensing
regimes do not require applicants to show an atypical need for armed self-defense, they do
not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second
Amendment right to public carry. [CITATION.] Rather, it appears that these shall-issue
regimes, which often require applicants to undergo a background check or pass a firearms
safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in
fact, ‘law-abiding, responsible citizens.’ [CITATION.] And they likewise appear to contain
No. 1-22-1178
only ‘narrow, objective, and definite standards’ guiding licensing officials, [CITATION] rather
than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an
opinion,’ [CITATION] features that typify proper-cause standards like New York’s. That said,
because any permitting scheme can be put toward abusive ends, we do not rule out
constitutional challenges to shall-issue regimes where, for example, lengthy wait times in
processing license applications or exorbitant fees deny ordinary citizens their right to
public carry.” Id. at 38 n.9.
¶ 16 In [CITATION], a defendant sought reversal of his AUUW
conviction premised on lack of a FOID Card. Like Santillanes, Gunn argued his conviction could
not stand in light of Bruen. Id. ¶¶ 7, 17. This court rejected Gunn’s challenge, noting the Supreme
Court’s differentiation between “shall-issue” and “may-issue” licensing regimes. Id. ¶ 19 (citing
[CITATION]). We remarked, “[t]here is no need for us to engage in a historical analysis
of firearm regulation when the Supreme Court has already done so and explicitly sanctioned the
use of background checks.” Id.
¶ 17 Insofar as Santillanes challenges the FOID Card Act itself, his challenge offers no reason
to revisit the issue we resolved in [CITATION]. 3 We decline to consider the Supreme Court’s footnote as
mere obiter dicta, 4 as the Court’s distinction between “may-issue” and “shall-issue” licensing
regimes was essential to Bruen’s holding that New York’s law was unconstitutional. Nor does the
footnote’s indication that the Court would not “rule out” challenges to “shall-issue” licensing
regimes prompts us to conduct a historical comparison. The Court contemplated that such a
This court has rejected similar Bruen-based challenges in several unpublished orders. See [CITATION].
“Obiter dicta are comments in a judicial opinion that are unnecessary to the disposition of the
case.” [CITATION].
No. 1-22-1178
challenge could be cognizable when licensing regimes impose obstacles to public carry such as
lengthy wait times or exorbitant fees. In no way, however, can the Court’s comment be read to
endorse an attack on a licensing requirement itself. But that is the sort of challenge Santillanes
asserts regarding the FOID Card Act—an attack on the basic requirement to obtain a license as a
precondition to carry a firearm in public for self-defense. Accordingly, we follow [CITATION] and reject
Santillanes’s challenge to the FOID Card Act.
¶ 18 We turn to the thrust of Santillanes’s challenge. Unlike [CITATION], who solely challenged the
FOID Card Act, Santillanes argues that the Second Amendment prohibits the imposition of
criminal penalties for carrying a firearm in public without a valid FOID card. He contends that
historical analogues restricting public carry only required posting a surety or imposed small fines.
Thus, in Santillanes’s view, the analytical framework announced in Bruen should lead us to find
that the criminal penalties of the AUUW statute are contrary to the historical tradition of firearm
regulation and therefore unconstitutional.
¶ 19 Taken to its logical conclusion, Santillanes’s argument would have us interpret the Second
Amendment to prohibit a state from imposing criminal penalties for violating a firearm licensing
regulation, even if the regulation itself passes constitutional muster. No court has taken such a leap.
We are aware of no authority that supports limitations on penalties for otherwise valid firearm
regulations and Santillanes does not cite any. Second Amendment jurisprudence has been
concerned with protecting the right to armed self-defense from burdens imposed by regulations,
not protecting individuals from penalties if they choose to disregard valid regulations. Since the
Second Amendment has never been interpreted to bar a state from making public firearm
possession in violation of a valid regulation a criminal offense, Santillanes facial challenge fails.
No. 1-22-1178
¶ 20 Separate from his appeal of the AUUW conviction in this case, Santillanes seeks vacatur
of two prior AUUW convictions. Unlike this case, Santillanes was previously convicted under a
subsection of the AUUW statute that was found to amount to a flat ban on firearm possession
outside the home and facially invalid under the second amendment. See [CITATION], ¶¶ 19-22. Such convictions are void and may be attacked at any time in any court. [CITATION], ¶ 57. The State agrees that Santillanes prior AUUW convictions are void
and should be vacated. Thus, we vacate both convictions.
¶ 21 III. CONCLUSION
¶ 22 For these reasons, we affirm the judgment of the trial court in this case and vacate the
judgments of conviction in case number 11 CR 00131 and case number 11 CR 09407.
¶ 23 Appeal No. 1-22-1178 Affirmed.
¶ 24 Case No. 11 CR 00131 Judgment vacated.
¶ 25 Case No. 11 CR 09407 Judgment vacated.
[CITATION]
2024 IL App (4th) 230428
FILED
May 20, 2024
NO. 4-23-0428
Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Stephenson County
LEVI T. BURNS, ) No. 22CF68
Defendant-Appellant. )
) Honorable
) Glenn R. Schorsch, III,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Steigmann and Doherty concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Levi T. Burns, was found guilty of unlawful
possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2022)). The trial court
sentenced defendant to three years in prison. Defendant appeals, arguing that his UPWF conviction
and the predicate offense of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-
1.6(a)(1), (a)(3)(A-5) (West 2020)) violate the second amendment to the United States
Constitution (U.S. Const., amend. II) and article I, section 22, of the Illinois Constitution (Ill.
Const. 1970, art. I, § 22). We affirm.
¶2 I. BACKGROUND
¶3 On July 28, 2022, defendant was charged by information with one count of UPWF.
The information alleged that, on March 17, 2022, defendant, a felon, knowingly possessed firearm
ammunition. ¶4 On February 7, 2023, the matter proceeded to a jury trial. The parties stipulated that
defendant had a prior felony conviction, and the following evidence was adduced. On March 17,
[SEGMENT 24]
2022, Freeport police officer Justin Holden was monitoring social media accounts, looking for
potential violations of the law. Holden testified that he was monitoring Snapchat, a platform where
photographs or videos are posted to one’s “story” immediately after being taken. Holden observed
a video posted to “an account entitled, Levi Burns” approximately four minutes earlier. In the
video, defendant was holding a black firearm magazine and in the magazine were “gold and red
shotgun shells.” The video appeared to have been recorded in a bedroom. Defendant was wearing
a black shirt and was covered in a dark blanket. Holden testified that he took a recording of the
video on a separate work phone. The video was played for the jury.
¶5 Approximately 90 minutes after Holden observed the video, he and other officers
responded to defendant’s address. When they arrived, Holden explained why he was there, and
defendant allowed the officers inside. Defendant showed them the bedroom where he took the
video. Holden testified that defendant was wearing the same shirt he wore in the video, and Holden
saw the blanket from the video on the floor. The officers did not locate a magazine or ammunition
at defendant’s residence, and defendant explained that his friend, King Stevenson, owned them.
The officers then went to Stevenson’s residence and recovered from Stevenson the same magazine
and ammunition defendant was holding in the video.
¶6 Stevenson explained that the police arrived at his residence approximately 15
minutes after he left defendant’s home. Prior to that time, Stevenson had been at defendant’s
residence for about 50 minutes. Stevenson had with him at defendant’s home the magazine and
ammunition for his Centurion shotgun that he owned. Stevenson explained that he had allowed
defendant to hold the magazine and was in the room when defendant made the video in which he
was holding the ammunition.
¶7 The jury found defendant guilty. On February 8, 2023, defendant filed a motion for
a new trial, arguing, inter alia, that the State failed to prove that the ammunition defendant
possessed was “functional ammunition” and that the trial court erred in admitting the Snapchat
video. The court denied the motion for a new trial and sentenced defendant to three years in prison.
This appeal followed.
¶8 II. ANALYSIS
¶9 On appeal, defendant argues that we should reverse his conviction for UPWF
because the UPWF statute violates the second amendment to the United States Constitution (U.S.
Const., amend. II) and article I, section 22, of the Illinois Constitution (Ill. Const. 1970, art. I,
§ 22). He also argues that his UPWF conviction should be reversed because the predicate offense
for that conviction was his prior conviction for AUUW, and the AUUW statute also violates the
United States and Illinois Constitutions.
¶ 10 A person raising a constitutional challenge to a statute carries the heavy burden of
rebutting the strong judicial presumption that the challenged statute is constitutional. [CITATION], ¶ 23. To overcome this presumption, the challenging party must clearly
establish that the statute violates the constitution. [CITATION], ¶ 23. Courts have a duty
to uphold the constitutionality of a statute whenever reasonably possible, resolving doubts in favor
of the statute’s validity. [CITATION], ¶ 23. Whether a statute is constitutional is a matter
of law that we review de novo. [CITATION], ¶ 23.
¶ 11 A constitutional challenge to a statute may be either facial or as applied. [CITATION], ¶ 24. A facial challenge requires the challenging party to show that the statute is
unconstitutional under any set of facts, while an as-applied challenge depends on the particular
facts and circumstances of the party. [CITATION]. Challengers raising a facial
challenge carry a particularly heavy burden, as the fact that the statute might operate
unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly
invalid. [CITATION].
¶ 12 A. Whether Defendant’s Conviction for UPWF Violates the Second Amendment
¶ 13 Defendant first argues that his conviction for UPWF violates the second
amendment both facially and as applied to him pursuant to the United States Supreme Court’s
decision in [CITATION].
¶ 14 The second amendment provides, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.
Const., amend. II. The United States Supreme Court has “recognized that the Second and
Fourteenth Amendments [(U.S. Const., amends. II, XIV)] protect the right of an ordinary, law-
abiding citizen to possess a handgun” inside and outside the home “for self-defense.” [CITATION].
¶ 15 In [CITATION], the Supreme Court announced a test for assessing the constitutional
validity of laws seeking to regulate conduct protected by the second amendment. The Court
explained that “when the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.” [CITATION]. To justify regulation of
that protected conduct, “the government must demonstrate that the regulation is consistent with
this Nation’s historical tradition of firearm regulation.” [CITATION]. Thus, “[o]nly if a
firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the
individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ” [CITATION] (quoting [CITATION]). Under
this framework, the Court concluded that a New York firearm licensing regime that required
individuals to show a “special need for self-defense” to carry a firearm in public violated citizens’
right to bear arms. [CITATION]. The Court reasoned, after analyzing the Anglo-
American history of regulating the public carry of weapons, that there was no showing that New
York’s firearm licensing regime was supported by “an American tradition justifying” it. [CITATION].
¶ 16 Defendant challenges the constitutionality of section 24-1.1(a) of the Criminal
Code of 2012 (Code), which provides, in part,
“It is unlawful for a person to knowingly possess on or about his person or on his
land or in his own abode or fixed place of business any weapon prohibited under
Section 24-1 of this Act or any firearm or any firearm ammunition if the person has
been convicted of a felony under the laws of this State or any other jurisdiction.”
ILCS 5/24-1.1(a) (West 2022).
Defendant contends that his conduct of possessing firearm ammunition in his home was covered
by the plain text of the second amendment and section 24-1.1(a) regulates that conduct. Defendant
thus argues that, per the framework announced in [CITATION], section 24-1.1(a) is unconstitutional on
its face and as applied to him because the State cannot prove that the statute is consistent with the
United States’s historical tradition of firearm regulation. The State responds that defendant does
not meet the threshold for his conduct to be constitutionally protected because, as a felon,
defendant is not a part of the “People” contemplated by the second amendment. Thus, the State
argues, Bruen does not apply to defendant.
¶ 17 Initially, we note that we are unable to address defendant’s as-applied challenge,
which he raises for the first time on appeal, because there is not a sufficiently developed
evidentiary record upon which to analyze his argument. Because as-applied constitutional
challenges are, by definition, dependent on the specific facts and circumstances of the person
raising the challenge, it is paramount that the record be sufficiently developed in terms of those
facts and circumstances for purposes of appellate review. [CITATION].
Indeed, a court is incapable of making an as-applied determination of unconstitutionality when no
evidentiary hearing has occurred and no findings of fact have been made. [CITATION].
Absent an evidentiary record, any finding that a statute is unconstitutional as applied to the
challenging party is premature. [CITATION]. Because defendant did not raise this
issue in the trial court, no factual findings were made related to defendant’s prior conviction or
how it pertained to his present claim relating to Bruen. Accordingly, any finding that section 24-
1.1(a) is unconstitutional as applied to defendant would be premature.
¶ 18 As to defendant’s facial challenge, we find [CITATION], instructive. In [CITATION], the defendant argued that section 24-1.1(a) of the Code was
unconstitutional under the second amendment as applied to him, given the framework announced
in Bruen. [CITATION], ¶¶ 33, 37. The appellate court concluded that
defendant could not challenge the constitutionality of section 24-1.1(a), because, as a felon, “Bruen
just does not apply to him.” [CITATION], ¶ 37. The court explained that Bruen
“could not have been more clear that its newly announced test applied only to laws that attempted
to regulate the gun possession of ‘law-abiding citizens,’ and not felons like defendant.” [CITATION], ¶ 37 (quoting [CITATION], 597 U.S. at 71). The court noted that the phrase
“law-abiding” was used extensively throughout the majority opinion in [CITATION], ¶ 37. Additionally, the court highlighted that Justice Kavanaugh’s concurrence,
which was joined by Chief Justice Roberts, asserted that “ ‘ “[N]othing in our opinion should be
[SEGMENT 25]
taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ***.” ’ ”
[CITATION], ¶ 37 (quoting [CITATION], 597 U.S. at 81 (Kavanaugh, J., concurring,
joined by Roberts, C.J.), quoting [CITATION], 554 U.S. at 626-27). The court concluded that, in light of
[CITATION]’s emphasis that its new test applied only to laws seeking to regulate the possession of
firearms by “ ‘law-abiding citizens,’ ” the defendant was “simply outside the box drawn by
[CITATION], ¶ 37.
¶ 19 Defendant counters that, while the petitioners in [CITATION] were “law-abiding”
individuals, nothing in that case suggested that its test was limited to “law-abiding” citizens. He
further claims that [CITATION] improperly relied upon dicta in [CITATION] stating that felons are not
guaranteed the right to bear arms. These arguments are unpersuasive, as we find that [CITATION]
comports with second amendment jurisprudence. In [CITATION], the Supreme Court held that the second
amendment conferred an individual right to keep and bear arms. [CITATION], 554 U.S. at 595. In so
holding, the Court noted that the second amendment “elevates above all other interests the right of
law-abiding, responsible citizens to use arms in defense of hearth and home.” (Emphasis added.)
[CITATION], 554 U.S. at 635. In accordance with this pronouncement, the Court explained that “nothing
in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of
firearms by felons.” [CITATION], 554 U.S. at 595, 626. In [CITATION], which held that the second
amendment was “fully applicable to the States” ([CITATION], 561 U.S. at 750), Justice Alito
“repeat[ed] those assurances” that prohibitions on possession of firearms by felons were not to be
doubted. McDonald, [CITATION] (opinion of Alito, J., joined by Roberts, C.J., and Scalia and
Kennedy, JJ.). Bruen did nothing to contradict the Court’s prior determinations that the second
amendment protects the rights only of law-abiding citizens to bear arms and that states may
prohibit the possession of firearms by felons.
¶ 20 Indeed, this court reached the same conclusion as Baker in [CITATION], ¶ 16, an unpublished order. In [CITATION], the defendant, a felon, argued that
section 24-1.1 of the Code was unconstitutional on its face under the Bruen framework. [CITATION],
¶ 11. Relying on Baker, we similarly concluded that use of the
phrase “law-abiding” throughout Heller and Bruen supported the conclusion that the second
amendment does not encompass felons. [CITATION], ¶ 15 (“However, the
Court’s language in Bruen supports the validity of its dictum in Heller.”). Accordingly, we
determined that “the Bruen decision does not apply to felons” and concluded that the defendant
“failed to show section 24-1.1 is unconstitutional on its face under that decision.” [CITATION], ¶ 16.
¶ 21 Given the foregoing, we hold that Bruen simply does not apply to defendant. The
second and fourteenth amendments protect the right of “law-abiding citizens” to possess handguns.
Bruen, [CITATION]. Bruen’s historical-tradition test applies to regulations affecting law-
abiding citizens’ possession of firearms. See Bruen, [CITATION] (holding that New York’s
proper-cause requirement was unconstitutional where it prevented “law-abiding citizens with
ordinary self-defense needs from exercising their right to keep and bear arms”); [CITATION], ¶ 37 (concluding that Bruen applies only to law-abiding citizens); [CITATION], ¶ 16 (same). As a felon, defendant, by definition, is not a law-abiding
citizen. Thus, defendant cannot show that his conduct was presumptively protected by the second
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'people-v-gunn', which should be replaced with `[CITATION]`. amendment, and therefore, he does not fall within the scope of Bruen. As a result, defendant cannot
show that section 24-1.1(a) of the Code violates the second amendment on its face under the Bruen
framework. See [CITATION].
¶ 22 Accordingly, we reject defendant’s arguments that section 24-1.1(a) of the Code
violates the second amendment on its face and as applied to defendant.
¶ 23 B. Whether Defendant’s Conviction for UPWF Violates the Illinois Constitution
¶ 24 Defendant argues that, even if section 24-1.1 of the Code does not run afoul of the
second amendment, it violates article I, section 22, of the Illinois Constitution on its face because
our state constitution provides “greater protections” than the second amendment.
¶ 25 Article I, section 22, provides, “Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed.” Ill. Const. 1970, art. I, § 22. This
provision does not mirror the second amendment but “adds the words ‘[s]ubject only to the police
power,’ omits prefatory language concerning the importance of a militia, and substitutes ‘the
individual citizen’ for ‘the people.’ ” [CITATION].
¶ 26 Defendant contends that, even if he does not fall within the scope of “the People”
as delineated in the second amendment, the Illinois Constitution “allows him to take part in the
right to keep and bear arms as an individual citizen.” Defendant contends that this right is not
narrowed by the prefatory language, “Subject only to the police power,” because preventing felons
from possessing firearms would be an improper exercise of police power. See Ill. Const. 1970, art.
I, § 22.
¶ 27 “[T]he legislature enjoys wide latitude in prescribing criminal penalties under its
police power and has an obligation to protect its citizens from known criminals.” [CITATION].
====== End of Part ====== [CITATION], ¶ 17. In fact, Illinois courts have recognized that, in
McDonald, Justice Alito “noted that federal and state legislatures and local governments have
police powers to pass laws that promote the health, safety and general welfare of their citizens.”
[CITATION], ¶ 23 (citing McDonald, 561 U.S. at 786 (opinion of Alito,
J., joined by Roberts, C.J., and Scalia and Kennedy, JJ.)). Thus, even assuming defendant is an
“individual citizen” such that he falls under the scope of article I, section 22, contrary to
defendant’s argument, “the police power includes the power to regulate certain aspects of gun
possession and ownership.” [CITATION], ¶ 23. Such regulations include
the “longstanding prohibitions on the possession of firearms by felons.” [CITATION], 554 U.S. at 626.
¶ 28 We note that the argument defendant now raises has been repeatedly rejected by
this court. For example, in [CITATION], we highlighted the affirmations in McDonald and Heller that
prohibitions on the possession of firearms by felons would not be doubted. [CITATION], ¶ 18. We determined that, given those affirmations, section 24-1.1 of the Code
was a proper exercise of police power, and therefore, the defendant failed to show that the statute
violated the Illinois Constitution. [CITATION], ¶ 18. Relying on [CITATION],
we reached the same determination in [CITATION], ¶ 25. The
same result applies here.
¶ 29 We again conclude that section 24-1.1 of the Code is a proper exercise of police
power, and thus, defendant cannot show that this statute violates article 1, section 22, of the Illinois
Constitution.
¶ 30 C. Whether Defendant’s Conviction for AUUW Violates the Second Amendment
- 10 - ¶ 31 Next, defendant argues that, even if the UPWF statute is constitutional, we should
nevertheless reverse his conviction because his prior conviction of AUUW, which served as the
predicate offense for his UPWF conviction, violates the second amendment.
¶ 32 As is relevant to defendant, a person commits AUUW where he or she “[c]arries
on or about his or her person or in any vehicle or concealed on or about his or her person *** any
pistol, revolver, stun gun or taser or other firearm” and “the pistol, revolver, or handgun possessed
was uncased, loaded, and immediately accessible at the time of the offense and the person
possessing the pistol, revolver, or handgun has not been issued a currently valid license under the
Firearm Concealed Carry Act.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2022).
[SEGMENT 26]
¶ 33 In 2013, Illinois implemented the Firearm Concealed Carry Act (Concealed Carry
Act) to allow qualified individuals to obtain licenses to carry concealed handguns in public. 430
ILCS 66/1 et seq. (West 2022). To obtain a concealed carry license (CCL), an individual must not
(1) have been found guilty of a misdemeanor involving the use or threat of physical force or
violence to any person within five years preceding the date of the application to obtain a CCL,
(2) have two or more violations related to impaired driving within the same time period, (3) be the
subject of a pending warrant or prosecution that could result in disqualification to possess a
firearm, or (4) have been ordered to receive treatment for alcohol or drugs within the preceding
five years. 430 ILCS 66/25(3)-(5) (West 2022). Additionally, the individual must (1) be at least 21
years of age, (2) have completed firearms training, and (3) have a valid Firearm Owner’s
Identification Card (FOID card) and meet the requirements for the issuance of a FOID card. 430
ILCS 66/25(1), (2), (6) (West 2022). If these requirements are met, the Illinois State Police “shall”
issue to the applicant a CCL within 90 days. 430 ILCS 66/10(a), (e) (West 2022).
- 11 -
======= ¶ 34 An individual obtains a FOID card by meeting the requirements of the Firearm
Owners Identification Card Act (FOID Card Act). 430 ILCS 65/0.01 et seq. (West 2022). The
FOID Card Act requires a person seeking to acquire or possess a firearm to obtain a FOID card
from the Illinois State Police. 430 ILCS 65/2(a)(1) (West 2022). To do so, an applicant must,
inter alia, pay a $10 fee, submit proof of Illinois residence, establish that he or she is at least 21
years of age, and provide a photograph. 430 ILCS 65/4(a)(2)(i)-(i-5), 4(a)(2)(xiv), 4(a-20), 5(a)
(West 2022). The Illinois State Police then conducts a search of its criminal history records and
those of the Federal Bureau of Investigation and the Department of Human Services to obtain
information regarding felony convictions, mental health and developmental disabilities, or
hospitalizations that would disqualify the individual from obtaining a valid FOID card. 430 ILCS
65/3.1(b) (West 2022). If these requirements are met, the Illinois State Police “shall” issue to the
applicant a FOID card within 30 days. 430 ILCS 65/5(a) (West 2022).
¶ 35 The AUUW statute incorporates the requirements of the FOID Card Act and
Concealed Carry Act by criminalizing noncompliance. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5),
(a)(3)(C) (West 2022).
¶ 36 Defendant contends that his conviction for AUUW violates the second amendment
under the framework announced in [CITATION] because “criminalization of handgun possession in the
absence of a FOID card and CCL burdens the individual right [to bear arms] in a manner with no
historical analogue.” This argument is unpersuasive.
¶ 37 In [CITATION], the Supreme Court explicitly categorized Illinois as 1 of 43 “ ‘shall issue’
jurisdiction[s], where authorities must issue concealed-carry licenses whenever applicants satisfy
certain threshold requirements, without granting licensing officials discretion to deny licenses
based on a perceived lack of need or suitability.” [CITATION], 597 U.S. at 13 & n.1 (including 430 ILCS
- 12 - 66/10 (West 2020) in the list of concealed-carry licensing regimes). The Court noted that, while
there was no “historical tradition limiting public carry only to those law-abiding citizens who
demonstrate a special need for self-defense” ([CITATION]), “nothing in our analysis
should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing
regimes.” [CITATION]. The Court explained:
“Because these licensing regimes do not require applicants to show an atypical need
for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible
citizens’ from exercising their Second Amendment right to public carry. [CITATION].
Rather, it appears that these shall-issue regimes, which often require applicants to
undergo a background check or pass a firearms safety course, are designed to ensure
only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible
citizens.’ Ibid. And they likewise appear to contain only ‘narrow, objective, and
definite standards’ guiding licensing officials, [CITATION],
rather than requiring the ‘appraisal of facts, the exercise of judgment, and the formation
of an opinion,’ [CITATION]—features that typify proper-cause standards like New York’s.
That said, because any permitting scheme can be put toward abusive ends, we do not rule
out constitutional challenges to shall-issue regimes where, for example, lengthy wait times
in processing license applications or exorbitant fees deny ordinary citizens their right to
public carry.” [CITATION].
The Court further acknowledged that, “[t]hroughout modern Anglo-American history, the right to
keep and bear arms in public has traditionally been subject to well-defined restrictions governing
- 13 - the intent for which one could carry arms, the manner of carry, or the exceptional circumstances
under which one could not carry arms.” [CITATION]
¶ 38 Given these principles, the appellate court in [CITATION], rejected the defendant’s argument that the FOID Card Act and the Concealed
Carry Act violate the second amendment on their faces pursuant to [CITATION]. In [CITATION], the defendant
was convicted of AUUW for possessing a weapon without a valid FOID card or CCL. [CITATION]. He argued that his AUUW conviction should be reversed because the
FOID Card Act’s requirements that an applicant pay a fee and provide personal information were
“an impermissible barrier” to the exercise of second amendment rights and the FOID Card Act
was inconsistent with the nation’s historical tradition of firearm regulation. [CITATION]. Similarly, the defendant asserted that the Concealed Carry Act’s requirements
that an individual must have a valid FOID card, undergo a 16-hour firearms training course, and
adhere to a 90-day waiting period before a CCL was issued “do not comport with our nation’s
historic tradition of firearm regulation.” [CITATION].
¶ 39 Relying on [CITATION], the court disagreed, concluding that neither statutory scheme
violated the second amendment. [CITATION]. As to the FOID Card Act,
the court noted that [CITATION] “explicitly acknowledged that background checks, which are the
cornerstone of the FOID Card Act, are permissible.” [CITATION]. The
court determined that there was “no need for us to engage in a historical analysis of firearm
regulation when the Supreme Court has already done so and explicitly sanctioned the use of
background checks.” [CITATION]. Regarding the Concealed Carry Act,
the court emphasized that Illinois is a shall-issue jurisdiction, meaning that “the State does not
have any discretion to deny a CCL to an applicant who fulfills [the] objective criteria” for issuance
- 14 -
====== of a CCL. [CITATION], ¶ 22. The court thus concluded that, unlike the
licensing scheme at issue in Bruen, “the Illinois statute mandates issuance of FOID cards and CCLs
within the framework of what has always been historically acceptable in the United States.” [CITATION], ¶ 22. The court emphasized that the Concealed Carry Act sets forth
broadly applicable, well-defined requirements like background checks and the completion of a
firearms training course—both of which the Supreme Court explicitly sanctioned in Bruen and
which, if fulfilled, result in the issuance of a CCL. [CITATION], ¶ 29.
Accordingly, the court held that the FOID Card Act and the Concealed Carry Act “comport[ ] with
federal law and, consequently, the AUUW statute does as well.” [CITATION],
¶¶ 19, 30.
¶ 40 Indeed, this court reached a similar conclusion in an unpublished order, [CITATION]. In [CITATION], the defendant challenged his AUUW conviction for
possessing a firearm without a FOID Card on the grounds that the FOID card requirement found
in section 24-1.6(a)(3)(C) of the Code was facially unconstitutional under Bruen. [CITATION], ¶¶ 4, 10. We concluded, like [CITATION], that (1) Illinois employs a shall-issue
licensing regime, (2) Bruen expressly distinguished “shall-issue” licensing regimes from “may-
issue” schemes, and (3) Bruen explicitly found that “shall-issue licensing regimes may continue.”
[CITATION], ¶ 22. Accordingly, we declined to find the AUUW statute’s
[SEGMENT 27]
FOID card requirement unconstitutional. See [CITATION], ¶ 16 (“We
simply find the FOID card application process and the AUUW statute’s FOID card requirement
are distinguishable from the may-issue licensing regime challenged in Bruen.”).
¶ 41 Defendant argues that we should disregard [CITATION] because it cited pre-Bruen cases
for its alternate determination that there was a historical basis supporting Illinois’s licensing
- 15 - regime. See [CITATION], ¶¶ 18, 22 (“[e]ven if our FOID card requirement
was not distinguishable” from the licensing regime struck down in Bruen, “Illinois courts have
repeatedly performed historical analyses of subsection (a)(3)(C) and found it constitutional” (citing
[CITATION], ¶ 76-
81, and [CITATION], ¶¶ 31-32)). We decline to disregard [CITATION].
Our decision today rests on our determination, similarly reached by other Illinois courts, that
Illinois’s licensing regime is a “shall-issue” framework that was endorsed by Bruen, unlike the
“may-issue” regimes targeted in that case. Accordingly, we do not reach a historical analysis of
the AUUW statute, and therefore, we need not rely upon the historical analysis undertaken in
[CITATION].
¶ 42 Accordingly, we hold that defendant has failed to establish that subsections (a)(1)
and (a)(3)(A-5) of section 24-1.6 of the Code are facially unconstitutional under the second
amendment.
¶ 43 D. Whether Defendant’s Conviction for AUUW Violates the Illinois Constitution
¶ 44 Finally, defendant argues that his UPWF conviction should be reversed because his
prior conviction of AUUW, which served as the predicate offense for his UPWF conviction,
violates the Illinois Constitution.
¶ 45 Like his prior arguments pursuant to the Illinois Constitution, defendant contends
that he is an “individual citizen” under article I, section 22, of the Illinois Constitution and that
Illinois’s licensing regime is not a valid exercise of police power. We again reject these arguments.
¶ 46 Even assuming that defendant is an “individual citizen” for purposes of article I,
section 22, he provides no coherent argument as to why the AUUW’s incorporation of the
regulations set forth in the FOID Card Act and Concealed Carry Act would not fall under the
- 16 - legislature’s broad police power. There appears to be no dispute that the FOID Card Act and
Concealed Carry Act requirements incorporated by the AUUW statute constitute measures meant
to protect the health, safety, and welfare of Illinois citizens—nor could there be any such dispute.
See 430 ILCS 65/1 (West 2022) (asserting that requiring FOID cards promotes a system by which
law enforcement can identify individuals prohibited from acquiring or possessing firearms and
ammunition, which “promote[s] and protect[s] the health, safety and welfare of the public”); [CITATION]
(stating that Illinois has an “important interest in
promoting public safety by ensuring the ongoing eligibility of who carries a firearm in public” and
that the licensing and monitoring scheme of the Concealed Carry Act arose out of the “weighty
interest in preventing the public carrying of firearms by individuals with mental illness and felony
criminal records”). As previously noted, the “legislature enjoys wide latitude in prescribing
criminal penalties under its police power and has an obligation to protect its citizens from known
criminals.” [CITATION]
¶ 47 Even so, defendant responds that we cannot read section 22’s prefatory clause so
broadly as to limit the protections of the second amendment. To the contrary, the Supreme Court
gave reassurances that the right to keep and bear arms is “not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.” [CITATION] Because
“the police power includes the power to regulate certain aspects of gun possession and ownership,”
and because the licensing requirements incorporated by the AUUW statute promote the State’s
interest in public safety, we conclude that subsections (a)(1) and (a)(3)(A-5) of section 24-1.6 of
the Code are a proper exercise of the State’s police power. [CITATION]
Accordingly, we hold that the AUUW statute does not violate article I, section 22, of the
Illinois Constitution. [CITATION]
- 17 - ¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm defendant’s conviction and sentence.
¶ 50 Affirmed.
- 18 - [CITATION]
Decision Under Review: Appeal from the Circuit Court of Stephenson County, No. 22-CF-
; the Hon. Glenn R. Schorsch III, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Jessica L. Harris, of
for State Appellate Defender’s Office, of Springfield, for appellant.
Appellant:
Attorneys Carl H. Larson, State’s Attorney, of Freeport (Patrick Delfino,
for David J. Robinson, and Matthew S. Goldman, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
- 19 - ```
```
2024 IL App (1st) 230679-U
No. 1-23-0679
Order filed May 3, 2024
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
Respondent-Appellee, ) Circuit Court of Cook County.
)
v. ) No. 22 CR 08267
)
HERBERT PITTS ) Honorable Maria Kuriakos-Ciesil,
) Judge, Presiding.
Petitioner-Appellant. )
JUSTICE NAVARRO delivered the judgment of the court.
Presiding Justice Mitchell and Justice Mikva concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for aggravated unlawful use of a weapon is
affirmed over his contention that the subsection of the statute under
which he was convicted violates the second amendment of the
United States Constitution; affirmed.
¶2 On December 1, 2022, defendant, Herbert Pitts, pled guilty to aggravated unlawful use
of a weapon (AUUW) based on carrying a firearm in public without having been issued a currently
valid Firearm Owner’s Identification Card (720 ILCS 5/24-1.6(a)(1), (3)(C) (West 2022)).
Thereafter, on February 8, 2023, Pitts filed a petition for relief from judgment under section 2-
1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2022)), arguing that the
section of the AUUW statute under which he was convicted was facially unconstitutional. No. 1-23-0679
circuit court denied him relief because his petition was untimely. Pitts now appeals that order. For
the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 On December 1, 2022, in exchange for serving one year in prison, Pitts pled guilty to
one count of AUUW, in that he carried a firearm in public without having been issued a currently
valid Firearm Owner’s Identification Card (FOID card) (720 ILCS 5/24-1.6(a)(1), (3)(C) (West
2022)). As for the factual basis for the plea, the parties stipulated as follows. On January 3, 2022,
Chicago police officers observed Pitts drinking alcohol on a public way, after which the officers
asked him if he had any weapons on him. Pitts told the officers that he did not have a weapon on
him. The officers conducted a protective pat down of his closed fanny pack and recovered a loaded
nine-millimeter automatic handgun from him. Pitts did not possess a valid FOID card. The court
found that there was a factual basis for the plea and sentenced Pitts to one year in prison.
¶5 On February 8, 2023, Pitts filed a pro se petition for relief from judgment under section
2-1401 of the Code, in which he argued that pursuant to Illinois Supreme Court cases, [CITATION],
and [CITATION], the section of the AUUW statute under which he was convicted was facially
unconstitutional and in violation of the second amendment of the United States Constitution (U.S.
Const., amend. II). He argued that his conviction for AUUW was void ab initio, as it was based
on an unconstitutional statute, and he requested the court vacate his conviction. We note that Pitts
was convicted under section 24-1.6(a)(1), (3)(C) of the AUUW statute, and in Pitts’ petition, he
cited a different section of the AUUW statute under which he was convicted.
No. 1-23-0679
¶6 At the hearing on Pitts’ petition, the court characterized his pleading as a “motion to vacate plea” and denied his motion because it was filed on February 28, 2023, which was more than 30 days after he entered his guilty plea on December 1, 2022.
[SEGMENT 28]
¶7 II. ANALYSIS
¶8 Initially, Pitts contends, and the State agrees, that the circuit court erred when it incorrectly characterized his section 2-1401 petition as a motion to withdraw his guilty plea and denied it as untimely, as it was filed more than 30 days after he entered the guilty plea. See Ill. S. Ct. R. 605(b)(2) (eff. Oct. 1, 2002). We agree with the parties.
¶9 Pitts’ petition specifically requested relief under section 2-1401 of the Code and alleged that his conviction for AUUW was void because the subsection under which he was convicted was facially unconstitutional. “[A] motion to vacate a void judgment is properly raised in a petition for relief from judgment under section 2-1401.” [CITATION] Further, a defendant may raise a challenge to a final judgment based on a facially unconstitutional statute at any time ([CITATION]), and section 2-1401 authorizes a circuit court to “vacate or modify a final order or judgment older than 30 days.” [CITATION] Accordingly, the court erred when it characterized Pitts’ section 2-1401 petition as a motion to vacate his guilty plea and then denied it as untimely. However, we may construe the circuit court’s denial of Pitts’ pleading as a dismissal of a section 2-1401 petition. See [CITATION] Further, we review the constitutionality of a statute de novo ([CITATION]) and, under this standard, we “may affirm on any basis found in the record.” [CITATION]
No. 1-23-0679
¶ 10 We also note that the State argues that Pitts waived any constitutional challenge he may
have based on subsequent changes in the law because he entered into a knowing and voluntary
guilty plea. However, Pitts is arguing that the statute under which he was convicted was facially
unconstitutional, and our supreme court has stated that, “a guilty plea does not preclude a defendant
from arguing on appeal that he was sentenced under a statute that was facially unconstitutional and
void ab initio.” [CITATION]. Further, “[d]efendants
convicted under a facially unconstitutional statute may challenge the conviction at any time, even
after a guilty plea, because the state or government had no power to impose the conviction to begin
with.” [CITATION]. Accordingly, by entering into a guilty plea, Pitts did not
waive his challenge that the AUUW statute under which he was convicted and sentenced was
facially unconstitutional.
¶ 11 We now turn to Pitts’ argument that the section in the AUUW statute under which he
was convicted was facially unconstitutional in violation of the second amendment to the United
States Constitution (U.S. Const., amend II). He contends that his conviction under section 24-
1.6(a)(1), (3)(C) of the AUUW statute violates his second amendment right to carry a ready-to-use
handgun for self-defense outside the home. He asserts that the requirement in the AUUW statute
that a person be issued a FOID Card in order to lawfully possess a gun does not comply with the
test set forth by the United States Supreme Court in New York State Rifle & Pistol Association,
Inc., v. Bruen, 597 U.S. 1 (2022), because, under that test, the firearm regulation is inconsistent
with our nation’s historical regulation of firearms.
¶ 12 If a judgment is based on a statute that is facially unconstitutional, it is void ab initio
[CITATION], which “means that the statute was constitutionally infirm from
the moment of its enactment and, therefore, unenforceable.” [CITATION]. “A
No. 1-23-0679
facial challenge to the constitutionality of a statute is the most difficult challenge to mount,” as
“[a] statute is facially unconstitutional only if there are no circumstances in which the statute could
be validly applied.” [CITATION]. Further, “we presume statutes are
constitutional, and ‘we have the duty to construe statutes so as to uphold their constitutionality if
there is any reasonable way to do so.’ ” [CITATION] (quoting [CITATION]). “The burden on the challenger is ‘particularly heavy when *** a facial
constitutional challenge is presented.’ ” Id. (quoting [CITATION]).
As previously noted, we review a constitutional challenge to a statute de novo, as it presents a
question of law. Id.
¶ 13 Under the FOID Card Act, a person must obtain a FOID card before legally a
possessing a firearm. Id. ¶¶ 9, 15 (citing 430 ILCS 65/2(a) (West 2020)). Pitts was convicted under
the section of the AUUW statute that penalizes a person’s noncompliance with the FOID Card
Act. See id. The AUUW statute under which Pitts was convicted provides, in relevant part, as
follows:
“(a) A person commits the offense of aggravated unlawful use of a weapon when he or
she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his
or her person except when on his or her land or in his or her abode, legal dwelling, or fixed
place of business, or on the land or in the legal dwelling of another person as an invitee
with that person’s permission, any pistol, revolver, stun gun or taser or other firearm; ***
*** and
(3) One of the following factors is present:
No. 1-23-0679
***
(C) the person possessing the firearm has not been issued a currently valid Firearm
Owner’s Identification Card[.]” 720 ILCS 5/24-1.6(a)(1), (3)(C) (West 2022).
¶ 14 The FOID Card Act provides that, “[n]o person may acquire or possess any firearm
*** without having in his or her possession a [FOID] Card previously issued in his or her name
by the Illinois State Police under the provisions of this Act.” 430 ILCS 65/2(a)(1) (West 2022). To
apply for a FOID card, a person, who is over the age of 21, must submit an application to the
Illinois State Police and provide evidence that they are, among other things, over the age of 21,
have not been convicted of a felony, are not addicted to narcotics, and have not been a patient in a
mental health facility within the past 5 years. Id. § 4(a)(1), (2); see [CITATION], ¶ 14 (discussing FOID Card Act); see also Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1,
2023) (unpublished Rule 23 orders filed on, or after, January 1, 2021, “may be cited for persuasive
purposes”). Further, upon request, an applicant must sign a release form that allows disclosure to
the Illinois State Police of “limited mental health institution admission information ***
concerning the applicant for the sole purpose of determining whether the applicant is or was a
patient in a mental health institution and disqualified because of that status from receiving a
[FOID] Card.” Id. § 4(a)(3). The applicant must also submit a photograph and provide proof of
residence in Illinois. Id. § 4(a)(a-20). If an applicant meets the requirements set forth in the statute,
the applicant “shall be entitled to a [FOID] Card upon the payment of a $10 fee and applicable
processing fees” and the Illinois State Police shall issue the card within 30 days from the date it
received the application. Id. § 5(a); [CITATION], ¶ 16.
¶ 15 The second amendment of the United States Constitution states: “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
====== End of Document ====== No. 1-23-0679
Arms, shall not be infringed.” U.S. Const., amend II. The second amendment right was made “fully
applicable to the States” through the fourteenth amendment of the United States Constitution (U.S.
Const., amend XIV). [CITATION]
¶ 16 In [CITATION] and [CITATION], the United States Supreme Court held that the “Second and
Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.” [CITATION]. Most recently, in [CITATION], the United States Supreme Court stated that, consistent
with [CITATION] and [CITATION], the second and fourteenth amendments “protect an individual’s right
to carry a handgun for self-defense outside the home.” Id. at 8-10. In [CITATION], the court set forth a
new standard when analyzing second amendment challenges to firearm regulations. Id. at 24; see
[CITATION]. The Court explained that, “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects
that conduct.” [CITATION]. If the second amendment covers the conduct, “[t]he
government must then justify its regulation by demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” Id.; see [CITATION]. In analyzing the historical tradition of a firearm regulation, the “historical inquiry” a court must
[SEGMENT 29]
conduct involves “reasoning by analogy.” [CITATION]. The Court explained that
“determining whether a historical regulation is a proper analogue for a distinctly modern firearm
regulation requires a determination of whether the two regulations are ‘relevantly similar.’ ” Id. at
28-29 (quoting C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)).
¶ 17 In [CITATION], the petitioners challenged a licensing law in New York that required an
individual to obtain an unrestricted license to carry a firearm outside of the home for self-defense.
[CITATION]. To obtain a license, an applicant
No. 1-23-0679
had to prove “proper cause,” which, as interpreted by the New York courts, required demonstrating
“ ‘a special need for self-protection distinguishable from that of the general community.’ ” Id. at
12. The “special need” standard generally required evidence “ ‘of particular threats, attacks or
other extraordinary danger to personal safety.’ ” [CITATION] at 12-13 (quoting [CITATION]).
After applying the law under the new test, the Court concluded
that the proper cause requirement in New York’s licensing regime violated the fourteenth
amendment because it “prevents law-abiding citizens with ordinary self-defense needs from
exercising their right to keep and bear arms.” Id. at 71.
¶ 18 In its analysis, the Court defined New York’s law as a “may-issue” licensing law under
which authorities had discretion to deny a license “even when the applicant satisfies the statutory
criteria, usually because the applicant has not demonstrated cause or suitability for the relevant
license.” Id. at 14. The Court distinguished the “may-issue” laws from the “shall-issue” laws, under
which licensing officials do not have discretion and must issue a license whenever an applicant
meets the threshold, objective requirements. Id. at 13, 38 n. 9; see [CITATION], ¶ 22. The Court
stated in a footnote that “nothing in our analysis should be interpreted to suggest the unconstitutionality
of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is
sufficient to obtain a [permit].’ ” Id. at 38 n. 9 (quoting [CITATION]) (Hardiman, J., dissenting)).
It stated that “[b]ecause these licensing regimes do not require applicants to show an atypical need for
armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising
their Second Amendment right to public carry.” Id. (quoting [CITATION]). The court noted that the
shall-issue regimes “which often require applicants to undergo a background check or pass a
No. 1-23-0679
firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are,
in fact, ‘law-abiding, responsible citizens.’ ” Id.
¶ 19 In Justice Kavanaugh’s concurring opinion, he further explained that the Court’s
decision did not “affect the existing licensing regimes—known as ‘shall issue’ regimes—that are
employed in 43 states” and concluded that the states “that employ objective shall-issue licensing
regimes for carrying handguns for self-defense may continue to do so.” Id. at 79-80; see
[CITATION], ¶ 23. Justice Kavanaugh noted that shall-issue licensing
regimes “may require a license applicant to undergo fingerprinting, a background check, a mental
health records check, and training in firearms handling and in laws regarding the use of force,
among other possible requirements.” [CITATION] at 80. He explained that shall-issue regimes
“do not grant open-ended discretion to licensing officials and do not require a showing of some
special need apart from self-defense.” Id.
¶ 20 Turning back to the instant case, Pitts argues that under the new analysis set forth in
[CITATION], the requirement in the AUUW statute that he be issued a FOID card in order to exercise his
right to carry a firearm outside the home violates the second amendment because it is inconsistent
with the nation’s historical tradition of firearm regulation. He asserts there are no historical
analogues for the AUUW statute’s requirement that individuals be issued a FOID card before they
can exercise their right to carry a firearm.
¶ 21 In [CITATION], this court has previously
concluded that the FOID Card Act complies with federal law. In [CITATION], the defendant was
convicted of AUUW in that, as relevant here, he carried a loaded firearm outside the home without
possessing a valid FOID card. Id. ¶¶ 5, 18. Relying on [CITATION], the defendant argued that the FOID
Card Act was facially unconstitutional and violated the right to bear arms, as it was inconsistent
No. 1-23-0679
with the nation’s historical tradition of firearm regulation. Id. ¶¶ 7, 17. However, this court
disagreed with the defendant’s argument. Id. ¶ 17. In doing so, this court found that Bruen
“explicitly acknowledged that background checks, which are the cornerstone of the FOID Card
Act, are permissible” and that there was “no need for us to engage in historical analysis of firearm
regulation when the Supreme Court has already done so and explicitly sanctioned the use of
background checks.” Id. ¶ 19 (citing [CITATION]). This court further explained that
Illinois is a shall-issue state and concluded:
“In Bruen, the United States Supreme Court had the opportunity to denounce states’
gun regulation schemes outright. However, it did not do so. Rather, it explicitly
acknowledged that shall-issue regimes, which are aimed at ensuring that only law-abiding
citizens are allowed to possess and carry firearms, do not prevent citizens from exercising
their second amendment rights. Illinois is a shall-issue state with clearly defined, objective
criteria regarding firearm possession and carry.” (Emphasis in original.) Id. ¶ 32.
This court also explained that unlike New York’s law, Illinois “does not have discretion to deny
an applicant based on requirements or factors not explicitly set forth in the statute.” Id. ¶ 16.
¶ 22 Here, we follow [CITATION] and conclude that the section in the AUUW statute under which
Pitts was convicted is not facially unconstitutional and [CITATION] does not provide a basis to invalidate
it. See id.; [CITATION] ¶¶ 11, 14-27 (following [CITATION] and concluding
that [CITATION] provided no basis to declare unconstitutional the AUUW statute that required the
defendant to obtain a FOID Card and concealed carry license before possessing a firearm in
public). As previously noted, under the FOID Card Act, the Illinois State Police “shall issue” a
license if the applicant meets the objective criteria. [CITATION] ¶ 25
(explaining that “the Illinois State Police ‘shall issue’ a license to any applicant who meets the
====== End of Ruling ====== No. 1-23-0679
well-defined, objective criteria contained therein.”); [CITATION],
¶ 61 (“Illinois is what Bruen calls a ‘shall-issue’ state because the Illinois State Police shall issue
a FOID card and [concealed carry license] to any applicant who meets the respective statutory
criteria.”). And thus, unlike New York’s “may-issue” licensing regime found unconstitutional in
Bruen, Illinois is a shall-issue state, which the Court did not invalidate in Bruen. [CITATION], ¶ 25 (“Illinois employs the kind of shall-issue regime endorsed by the
Bruen Court.”).
¶ 23 Pitts also contends that section 24-1.6(a)(1), (3)(C) of the AUUW statute violates the
second amendment because it violates an individual’s second amendment right to carry a ready-
to-use handgun for self-defense outside the home. However, Pitts was not convicted of AUUW
because he carried a ready-to-use handgun for self-defense outside the home. Rather, he was
convicted under subsection (a)(1), (3)(C) in that he carried a firearm in public without having been
issued a currently valid FOID card.
¶ 24 Pitts argues that section 24-1.6(a)(1), (3)(A) of the AUUW statute amounts to a flat ban
on carrying ready-to-use handguns for self-defense outside the home. However, Pitts was not
convicted under this section of the AUUW statute. As previously discussed, he was convicted
under section 24-1.6(a)(1), (3)(C), in that he carried a firearm in public without a valid FOID card.
Thus, we will not address Pitts’ argument. See [CITATION], ¶ 13 (“[A] court
will not consider a constitutional challenge to a criminal statutory provision under which a
defendant has not been charged.”). Lastly, Pitts challenges his conviction citing subsection (a)(c)
of the AUUW statute. This subsection provides exceptions that do not apply and are not relevant to
his conviction under subsection 24-1.6(a)(1), (3)(C).
¶ 25 III. CONCLUSION
No. 1-23-0679
¶ 26 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 27 Affirmed.
[SEGMENT 30]
2024 IL App (1st) 221508-U
SECOND DIVISION
March 29, 2024
No. 1-22-1508
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 2684
)
MICHAEL RICHARDSON, ) Honorable
) Alfredo Maldonado,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s judgment convicting defendant of aggravated unlawful
use of a weapon (AUUW) after a guilty plea; the Illinois AUUW statute does not violate
the second amendment to the United States Constitution under the test the United States
Supreme Court articulated in [CITATION].
¶2 Following a negotiated guilty plea, the circuit court of Cook County convicted defendant,
Michael Richardson, on one count of aggravated unlawful use of a weapon (AUUW) in violation
of section 24-1.6(a)(1), (a)(3)(A-5) of the Criminal Code of 2012 (720 ILCS 5/24-1.6(a)(1),
(a)(3)(A-5) (West 2020)), in that he possessed in a vehicle an uncased, loaded, and immediately
accessible handgun and he had not been issued a currently valid license under the Firearm
Concealed Carry Act (CCL) (430 ILCS 66/1 to 66/99 (West 2020)). Defendant did not file a
motion to withdraw his guilty plea. Defendant filed a timely notice of appeal. On appeal, he 1-22-1508
argues that the AUUW statute under which he was convicted was facially unconstitutional. For
the following reasons, we affirm.
¶3 BACKGROUND
¶4 Given the substance of the appeal, a lengthy discussion of the facts of the case is not
needed. Defendant, Michael Richardson, was stopped by police while driving his car and
subjected to a pat-down search. The search revealed that defendant was carrying a handgun in his
waistband. Police determined defendant did not have a valid Firearm Owner’s Identification
(FOID) card or a Conceal Carry License at the time. Following negotiations with the State and
the trial court, defendant pleaded guilty to AUUW based on carrying an uncased, loaded, and
immediately accessible gun on his person without a valid Conceal Carry License, in exchange
for a sentence of one year of imprisonment. Defendant did not file a motion to withdraw his
guilty plea. This appeal followed.
¶5 ANALYSIS
¶6 On appeal defendant argues the AUUW statute under which he was convicted is facially
unconstitutional. “[A] facial challenge requires a showing that the statute is unconstitutional
under any set of facts, i.e., the specific facts related to the challenging party are irrelevant.”
[CITATION]. The sole issue before us is defendant’s facial challenge to the AUUW stature, which is a question of statutory interpretation,
and the interpretation of a statute presents a question of law that we review de novo. [CITATION].
¶7 The first issue this court faced was whether we have jurisdiction to hear this appeal where
defendant did not file a motion to withdraw his guilty plea. [CITATION], ¶ 8 (“[g]enerally, [t]o preserve an issue for appellate review, a defendant must both
1-22-1508
object at trial and present the issue in a written posttrial motion.”) (Internal quotation marks
omitted.) However, our supreme court has held that “a guilty plea does not preclude a defendant
from arguing on appeal that he was sentenced under a statute that was facially unconstitutional
and void ab initio.” [CITATION] See also [CITATION], ¶ 8 (an exception to the rule requiring presentment of an issue in a posttrial
motion to preserve the issue for review “exists for constitutional challenges: a challenge to the
constitutionality of a statute may be raised at any time”).
¶8 The sole issue defendant presents for review by this court is whether the AUUW statute
is facially unconstitutional when “it imposes an onerous dual-licensing regime, requiring
[defendants] to first be issued a Firearm Owner’s Identification (FOID) card before obtaining a
Concealed Carry License to carry a concealed firearm” because doing so “is inconsistent with
this nation’s historical tradition of firearm regulation.” In this case, defendant raises a challenge
to the constitutionality of a statute. Therefore, we find pursuant to [CITATION] that we have
jurisdiction of this appeal. [CITATION] See also [CITATION], ¶ 35 (discussing argument that “this court has exempted the application of Rule 604(d)
to negotiated pleas in two narrow instances: (1) where a defendant challenged his sentence as not
authorized by statute ([CITATION]); and (2) where a defendant challenged the statute under which
he was sentenced as facially unconstitutional and void ab initio [CITATION]”), and [CITATION], ¶ 8 (“a challenge to the constitutionality of a statute may be raised at any
time”). We also find that defendant has standing to raise this challenge. [CITATION] Moreover, “[t]he constitutionality of a statute is reviewed de novo.” [CITATION]
1-22-1508
¶9 Turning to the merits, defendant argues the AUUW statute is facially unconstitutional
under the second amendment to the United States constitution pursuant to the analysis
announced in [CITATION]. Pursuant to
[CITATION], the court must first determine whether the plain text of the second amendment covers the
conduct in the challenged regulation and if it does, then the regulated conduct is presumptively
protected by the second amendment and the State has the burden to justify its regulation of that
conduct by demonstrating that doing so is consistent with the nation’s historical tradition of
firearm regulation. [CITATION]. “To carry this burden, the
government must point to ‘historical precedent from before, during, and even after the founding
[that] evinces a comparable tradition of regulation.’ ” Id. ¶ 70. “[I]t is not necessary to identify a
‘historical twin’; rather a ‘well-established and representative [historical] analogue will do.’ ”
(Emphasis in original.) Id. ¶ 71.
¶ 10 Defendant argues the AUUW statute is unconstitutional on its face—meaning “the statute
is unconstitutional under any set of facts” ([CITATION])
because the conduct of possessing a handgun in a conveyance outside the home is covered by the
plain text of the second amendment and imposing a dual licensing regime on such possession is
not consistent with this nation’s historical tradition of firearm regulation. Defendant argues that
requiring a person to first obtain a FOID Card and a license under the CCL “imposes an onerous
burden” on the right to bear arms that is “not consistent with this Nation’s historical tradition of
firearm regulation.”
¶ 11 Defendant claims that the historical evidence shows that criminalization of handgun
possession in the absence of a FOID card and a license under the CCL “burdens the individual
right in a manner with no historical analogue.” Defendant argues that three colonial-era
1-22-1508
restrictions regulating public carry of firearms identified in [CITATION] are not a historical analogue
for the AUUW statute because they contained an additional intent element not present in the
AUUW law and “surety laws adopted in the mid-19th century do not establish a historical
tradition comparable to the AUUW law because those laws were not punitive and only required
the burdened individual to pay a bond; nor do “short-lived laws requiring freedmen *** to obtain
licenses” provide suitable historical comparisons. As such, defendant argues the State “cannot
affirmatively prove this nation has a historical tradition of imposing felony punishment on an
individual who exercises the constitutional right to keep and bear arms without having been
issued two separate licenses.”
¶ 12 Defendant also argues the delay in issuing licenses—that is, the time given to the State to
issue the license after a person applies—has no historical analogue. Defendant argues the need
for self-defense in a person’s conveyance is not less than their need for self-defense in the home
but the AUUW statute only criminalizes possession in a vehicle and explicitly excludes the
home, therefore the AUUW statute does not pass the [CITATION] test.
¶ 13 The second amendment protects carrying handguns publicly for self-defense. [CITATION]. The issue in this case is whether the AUUW statute attempts to regulate carrying
handguns publicly in a manner that is not consistent with this nation’s historical traditions of
firearm regulation. We find the issue is not whether the second amendment protects carrying a
gun without a license but is whether the licensing requirement—the right to bear arms publicly
being presumed—in consistent with this nation’s history of regulating that right. Although
“[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the
[SEGMENT 31]
right to keep and bear arms,” ([CITATION]), “[t]hroughout modern Anglo-American
history, the right to keep and bear arms in public has traditionally been subject to well-defined
1-22-1508
restrictions governing the intent for which one could carry arms, the manner of carry, or the
exceptional circumstances under which one could not carry arms” ([CITATION], 597 U.S. at 38).
Defendant’s argument that the AUUW statute is unconstitutional because there is no difference
between the two fails.
¶ 14 As to the AUUW regulation on carrying firearms publicly and whether it is inconsistent
with this nation’s traditions of firearm regulation we note that this court has previously stated
that argument “is exactly the same argument we rejected in [CITATION], ¶ 24. We have
previously continued to follow Gunn, and we do so now.
¶ 15 In [CITATION], this court upheld Illinois’ licensing scheme against a challenge under [CITATION].
The Gunn court found that Illinois is a shall-issue jurisdiction under both the FOID Card Act and
the CCL. [CITATION], ¶ 22. The court found that [CITATION] did not suggest the
unconstitutionality of shall-issue licensing regimes, although it did not rule out challenges to
shall-issue regimes where, for example, “lengthy wait times in processing applications or
exorbitant fees deny ordinary citizens their right to public carry” ([CITATION], ¶ 23 (citing [CITATION], 597
U.S. at 37-38)), neither of which defendant argues on appeal. This court found that Illinois uses a
“shall-issue licensing scheme,” that such regimes “do not prevent citizens from exercising their
second amendment rights,” and there is “no reason to believe that the Supreme Court intended to
invalidate the type of firearm regulation employed by our state.” [CITATION], ¶ 32. This court held:
“In sum, consistent with the Supreme Court’s guidance quoted above, the
Carry Act sets forth broadly applicable, well-defined requirements, which, if
fulfilled, result in the issuance of a [concealed carry license]. These include
1-22-1508
background checks and completion of a firearms training course, both of which
the Supreme Court explicitly sanctioned in [CITATION]. None of the requirements
compel applicants to demonstrate a special need to carry firearms for self-defense,
nor are these requirements subject to the State’s discretion. Again, Illinois is a
shall-issue jurisdiction. Unlike the New York regulation that granted broad
discretion to the state in deciding whether an applicant has demonstrated a special
need to carry, Illinois’s statute does not do that. Simply put, the Illinois scheme
aims to ensure that only law-abiding citizens are allowed to carry firearms.” Id. ¶
.
¶ 16 This court has held the AUUW statute comports with the second amendment. Consistent
with [CITATION], we so hold again today. Defendant’s argument the AUUW statute is unconstitutional
on its face because its regulations are too onerous fails where the United States Supreme Court
has specifically endorsed such regulations. See [CITATION]. (We reject out of
hand defendant’s argument that footnote 9 in [CITATION] is mere dicta that should be afforded little
weight.)
¶ 17 CONCLUSION
¶ 18 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 19 Affirmed.
2024 IL App (1st) 220455
No. 1-22-0455
Opinion filed March 27, 2024
Third Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 19 CR 11210
)
ASHONTIS HATCHER, ) Honorable
) John T. Gallagher,
Defendant-Appellant. ) Judge, presiding.
JUSTICE VAN TINE delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice D.B. Walker concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Ashontis Hatcher was found guilty of four counts of
aggravated unlawful use of a weapon (AUUW) and sentenced to one year in prison. On appeal,
defendant contends that (1) the trial court should have granted his motion to quash his arrest and
suppress evidence, (2) his waiver of his right to a jury trial was invalid, (3) the subsections of the
AUUW statute under which he was convicted violate the second amendment to the United States
Constitution, and (4) if we affirm his AUUW convictions, we should vacate all but one pursuant
to the one-act, one-crime rule. For the following reasons, we affirm the denial of defendant’s No. 1-22-0455
motion to quash his arrest and suppress evidence, the trial court’s acceptance of his jury waiver,
and the facial constitutionality of the subsections of the AUUW statute under which he was
convicted. However, we agree that all but one of defendant’s convictions should be vacated
pursuant to the one-act, one-crime rule, and we remand to the trial court to determine which
conviction should stand and which should be vacated.
¶2 I. BACKGROUND
¶3 The State charged defendant with and proceeded to trial on four counts of AUUW arising
out of his possession of a firearm on July 12, 2019. Count I alleged that defendant knowingly
carried an uncased, loaded, and immediately accessible firearm without a concealed carry license
(CCL) or Firearm Owner’s Identification (FOID) card ([CITATION]). Count II alleged that defendant knowingly carried an
uncased, loaded, and immediately accessible firearm without a CCL ([CITATION]). Count III alleged that defendant knowingly carried a firearm without a FOID card ([CITATION]). Count IV alleged that defendant knowingly carried a firearm when he was under 21 years of age ([CITATION]).
¶4 A. Motion to Suppress
¶5 Defendant filed a pretrial motion to quash his arrest and suppress certain evidence. His
motion alleged that he was arrested by Orland Park police at approximately 7:50 p.m. on July 12,
2019. Defendant was a passenger in a vehicle when he was arrested. Police recovered a firearm
and “other identifying items” from a bag near defendant’s seat in the rear passenger compartment.
Defendant’s motion argued that the arresting officers did not have an arrest warrant for him, a
search warrant for his property, or probable cause to justify his warrantless arrest.
====== No. 1-22-0455
¶6 At the hearing on defendant’s motion to suppress, Orland Park Police Officer David
Staszak testified that he and his partner, Officer Chris Losurdo, were on duty in plain clothes and
driving an unmarked police vehicle on the evening of July 12, 2019. 1 Tinley Park Police Officer
Russ Borrowdale informed Staszak that he saw a Nissan stop at a bank in Tinley Park. Borrowdale
saw the front passenger, who was later identified as Andre Culpepper, exit the Nissan, look at an
automatic teller machine (ATM), and return to the vehicle, which drove off. Borrowdale followed
the Nissan to another bank in Orland Park, and Staszak and Losurdo arrived on scene. The officers
monitored the bank’s entrance and exit. Borrowdale told Staszak that he saw Culpepper enter the
bank’s vestibule, use the ATM, and return to the Nissan. Staszak suspected that Culpepper was
“card tracking,” which is using someone else’s debit card to make deposits into a bank account
and then withdrawing the funds before the bank discovers that the transactions are fraudulent.
Staszak had investigated card tracking previously at that particular Orland Park bank.
¶7 After the Nissan left the second bank, Staszak saw it change lanes without using a turn
signal, so he conducted a traffic stop. Staszak, Losurdo, and Borrowdale approached the Nissan.
Kendrick Morse was driving the Nissan, Culpepper was in the front passenger seat, and defendant,
whom Staszak identified in court, was in the rear passenger seat. 2 Culpepper initially refused
multiple orders to exit the vehicle, but when he did get out, the officers arrested him and recovered
an ATM receipt from his hand. The receipt matched a credit or debit card belonging to someone
named Tyler Hickman, who was not in the vehicle, and it indicated that Culpepper had used
The record uses both “officer” and “detective” as titles for the Orland Park Police personnel. For
simplicity, we will refer to both as officers.
The record spells the driver’s last name as both “Morse” and “Morris.” We will use “Morse”
because that is how Staszak spelled it at the motion to suppress hearing.
No. 1-22-0455
Hickman’s card in the ATM transaction at the bank in Orland Park. The officers recovered
Hickman’s card from the front passenger door handle.
¶8 The officers ordered Morse and defendant to exit the Nissan, which they did. Defendant
[SEGMENT 32]
was not handcuffed, but he was not free to leave. The officers searched the vehicle “for further
evidence of possible bank fraud crimes.” They recovered a debit card belonging to a Kenesha
Allen from the center console and a check for $2007 from the glove box. Orland Park Police
Officer Casey Wall, who arrived during the traffic stop, saw an open backpack on the floorboard
of the rear passenger area where defendant’s feet had been. He could see a handgun magazine
protruding from the backpack’s open zipper. From the backpack, the officers recovered a handgun,
a debit or credit card belonging to defendant, and several credit cards belonging to people who
were not in the Nissan.
¶9 Defendant argued that there was no indication he was involved in criminal activity when
police detained him and searched his backpack. He was not the person police saw approach ATMs
at the two banks, and he complied with the officers’ orders, defendant maintained. The State argued
that the officers had reasonable suspicion to stop the Nissan and probable cause to search it and
arrest its occupants based on suspicion of bank fraud, which was corroborated by the officers’
discovery of bank cards and a check in the vehicle.
¶ 10 The trial court denied defendant’s motion to suppress. The court concluded that the officers
were “conducting a reasonable investigation into a suspicion” of bank fraud, which they
substantiated when they found Hickman’s card near the vehicle’s front passenger door handle. In
addition, the court found that the officers saw the firearm’s magazine “within open sight” because
the backpack was open.
====== End of Court Ruling ====== No. 1-22-0455
¶ 11 B. Trial
¶ 12 Prior to trial, defendant signed a jury waiver form, which stated “I, the undersigned, do
hereby waive jury trial and submit the above entitled cause to the Court for hearing.” In response
to questioning by the trial court, defendant confirmed that he signed the jury waiver form and that
he was “asking for a bench trial, not a jury trial.”
¶ 13 At trial, Losurdo testified consistently with Staszak’s testimony at the motion to suppress
hearing. Losurdo added that Borrowdale initially contacted him and Staszak by phone.
¶ 14 Wall testified that he was on duty in plain clothes on July 12, 2019. Wall learned that
Staszak and Losurdo had conducted a traffic stop on the 15400 block of LaGrange Road and drove
to that location. Wall spoke with defendant, whom he identified in court, while defendant was in
the rear passenger seat of the Nissan. After defendant complied with orders to exit the Nissan,
Wall searched the rear passenger compartment and found a small red backpack on the floorboard.
He saw the magazine of a firearm protruding from an open zipper. Wall searched the backpack
and recovered a loaded firearm and several debit and credit cards, one of which had defendant’s
name on it. The other cards belonged to individuals who were not in the Nissan.
¶ 15 Wall identified photographs of the firearm, the backpack, and defendant’s debit card, which
the State moved into evidence. The first photograph depicts a Smith & Wesson handgun. The
second photograph depicts a red backpack surrounded by a collection of personal items, including
four bank receipts and four credit or debit cards. The third photograph depicts the back of a bank
card belonging to defendant.
¶ 16 The parties stipulated that defendant was born on August 26, 1998, and that he did not
possess a valid FOID card or CCL on July 12, 2019.
No. 1-22-0455
¶ 17 The trial court found defendant guilty on all counts. The court explained that defendant’s
debit card being inside the backpack supported his constructive possession of the backpack and
the firearm inside it.
¶ 18 Defendant filed a motion for a new trial, which argued, inter alia, that the trial court erred
in denying his motion to suppress. Defendant’s posttrial motion did not address his waiver of his
right to a jury trial, the constitutionality of the AUUW charges, or the one-act, one-crime rule.
¶ 19 The trial court sentenced defendant to one year in prison.
¶ 20 Defendant timely appealed.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues that (1) the trial court should have granted his motion to
suppress, (2) his waiver of his right to a jury trial was invalid, (3) the subsections of the AUUW
statute under which he was convicted violate the second amendment to the United States
Constitution, and (4) if we affirm his convictions, all but one should be vacated pursuant to the
one-act, one-crime rule.
¶ 23 According to the Illinois Department of Corrections (IDOC) website, defendant has
completed his sentence and is no longer in IDOC custody. 3 Nevertheless, he can still challenge his
convictions. “[T]he completion of a defendant’s sentence renders a challenge to the sentence moot,
but not a challenge to the conviction. [CITATION] Nullification of a conviction may hold important
consequences for a defendant.” [CITATION]
We take judicial notice of information on IDOC’s website. [CITATION],
¶ 40.
No. 1-22-0455
¶ 24 A. Motion to Suppress
¶ 25 Defendant first contends that the trial court should have granted his motion to suppress the
firearm police recovered from his backpack, along with information about his age and lack of a
FOID card and CCL.
¶ 26 At a motion to suppress hearing, the defendant has the burden to make a prima facie
showing that the evidence in question was obtained by an illegal search or seizure. [CITATION], ¶ 22. A prima facie showing means the defendant must establish the
factual and legal basis for the motion to suppress. Id. When the defendant alleges evidence was
the product of an unlawful search or seizure, he must establish that there was a search or seizure
and that it was unlawful. Id.; [CITATION]. If a defendant makes a prima facie showing, the burden shifts to the State to present evidence to counter it.
[CITATION], ¶ 22. The ultimate burden of proof remains with the defendant. Id.
¶ 27 We review the denial of a motion to suppress using a two-part standard. Id. ¶ 21. We give
deference to the trial court’s findings of fact, which we reverse only if they are against the manifest
weight of the evidence. Id. We review de novo whether the police had probable cause to conduct
searches or seizures. Id. In reviewing the trial court’s ruling on a motion to suppress, we consider
the evidence adduced at trial as well as at the suppression hearing. [CITATION].
¶ 28 The fourth amendment to the United States Constitution prohibits unreasonable searches
and seizures. [CITATION] (citing U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; [CITATION]). This case involves three
interactions to which the fourth amendment applies: the initial traffic stop of the Nissan,
No. 1-22-0455
defendant’s arrest, and the search that produced the firearm in defendant’s backpack. Defendant’s
motion to suppress did not challenge the legality of the initial traffic stop, and he does not raise
that issue on appeal. Therefore, we assume that the traffic stop was lawful and proceed to the issue
of defendant’s arrest.
¶ 29 Defendant argues that “police arrested [him] after searching the car where he had been a
passenger and finding a gun in a backpack that was on a rear passenger floorboard.” According to
defendant, his arrest was unjustified because “[p]olice did not observe [him] engage in any
unlawful activity before the arrest or determine whether his possession of a firearm was illegal.”
Defendant also contends that his “illegal arrest led to the seizure of a gun and information about
his age and lack of a FOID card or concealed-carry license.”
¶ 30 We find these arguments somewhat contradictory. On the one hand, defendant claims that
police found the firearm in his backpack first, then arrested him. On the other hand, defendant
claims that police first arrested him unlawfully, then “seiz[ed]” the firearm. Perhaps defendant is
drawing a fine distinction between “finding” the firearm and “seizing” it, but it is not clear what
he contends the order of events was. For its part, the State argues that defendant forfeited the first
argument, i.e., that the officers did not have probable cause to arrest him because they learned only
after his arrest that it was illegal for him to possess the firearm due to his age and his lack of a
FOID card and CCL. According to the State, defendant did not advance that theory of suppression
in the trial court. Ultimately, we do not need to untangle these arguments because our review of
whether the officers violated defendant’s fourth amendment rights is de novo. See [CITATION], ¶ 21. We will apply fourth amendment principles to the evidence that was presented at
the motion to suppress hearing and at trial.
====== End of the Court Ruling ====== No. 1-22-0455
¶ 31 As noted above, there is no dispute that police conducted a traffic stop of the Nissan in
which defendant was a passenger. Defendant does not claim that the traffic stop was unlawful.
Following a lawful traffic stop, police may order the driver and passengers out of the vehicle while
[SEGMENT 33]
the officers complete the investigatory stop. [CITATION]
Ordering defendant to exit the Nissan was lawful. See id.
¶ 32 Clearly defendant was arrested at some point after police stopped the Nissan. The question
is when that occurred. “ ‘An arrest occurs when the circumstances are such that a reasonable
person, innocent of any crime, would conclude that he was not free to leave.’ ” [CITATION]
In determining whether an arrest occurred, we must consider “ ‘all of the circumstances
surrounding the encounter.’ ” Id. (quoting Kaupp v. Texas, 538 U.S. 626, 629 (2003) (per curiam)).
¶ 33 The evidence established the following sequence of events: Police stopped the Nissan and
ordered Culpepper to exit the vehicle; he refused. When Culpepper eventually did exit the Nissan,
the officers arrested him and recovered an ATM receipt that matched a bank card belonging to a
Tyler Hickman, who was not in the vehicle. The officers found Hickman’s card in the front
passenger-side door. Shortly thereafter, the officers ordered defendant and Morse out of the
vehicle, searched it, and found another bank card belonging to a Kenesha Allen, who was not in
the vehicle, as well as a check for $2007. When defendant was outside the Nissan, he was not
handcuffed, and the officers did not have their weapons drawn. However, Staszak testified that
defendant was “not free to leave” at that point. Wall saw the magazine of a firearm protruding
from defendant’s open backpack and recovered the firearm along with several credit and debit
cards. Staszak confirmed that defendant was detained when Wall recovered these items from
No. 1-22-0455
defendant’s backpack. A reasonable person in defendant’s position would not have thought that
he was free to simply walk away from the Nissan while the officers searched it, particularly
because Culpepper had already been arrested. See id. Therefore, defendant’s arrest occurred
shortly after he exited the Nissan and before Wall searched his backpack and recovered the firearm.
¶ 34 Next, we must determine whether defendant’s arrest was lawful. A warrantless arrest is
reasonable only if it is supported by probable cause. [CITATION], ¶ 11.
Probable cause to arrest exists if the facts known to the officer at the time of the arrest are sufficient
to lead a reasonable person to believe that the arrestee has committed a crime. Id. When
determining whether officers had probable cause to arrest, we examine the totality of the
circumstances known to the officers at the time of the arrest. Id. “Whether probable cause exists is
governed by commonsense considerations, and the calculation concerns the probability of criminal
activity, rather than proof beyond a reasonable doubt.” Id.
¶ 35 When the officers arrested defendant, they had observed Culpepper’s suspicious behavior
at two nearby banks, both of which he traveled to in the Nissan. The officers had also recovered
two pieces of evidence of bank fraud from the Nissan: the ATM receipt and Hickman’s bank card.
Given that defendant, Culpepper, and Morse were all in the Nissan together, “ ‘it was reasonable
for the officer[s] to infer a common enterprise among the three men.’ ” See [CITATION]; see also
[CITATION] (quoting [CITATION]); see also
[CITATION] (it is “likely a car passenger is a companion to
the driver, and perhaps involved in the driver’s criminal behavior”). In sum, at the time of
defendant’s arrest, police knew that defendant was a passenger in a vehicle they had probable
- 10 - No. 1-22-0455
cause to believe was being used to commit bank fraud. That was sufficient to provide probable
cause for defendant’s arrest. See [CITATION].
¶ 36 Defendant argues that “mere possession of a handgun was not a crime and could not serve
as a basis for arrest.” That may be true, but the evidence established that defendant was arrested
before Officer Wall discovered the firearm in his backpack. Defendant was not arrested based on
his possession of a firearm; he was arrested based on his suspected involvement in bank fraud.
¶ 37 Defendant also contends that the officers saw only Culpepper “engaging in the suspicious
activity at the two ATMs.” That is also true, but, as explained above, police may, in some
circumstances, infer a common criminal enterprise among occupants of the same vehicle. See [CITATION].
It is unlikely that an innocent, uninvolved person would be invited to ride along with
Culpepper as he committed suspected bank fraud. See [CITATION].
¶ 38 Defendant argues that the trial court should have suppressed evidence that he was under 21
and lacked a FOID card and CCL because those pieces of information were the “fruits of an illegal
arrest.” But defendant’s arrest was lawful, so this evidence was not the product of an unlawful
arrest. Moreover, at the motion to suppress hearing, defendant elicited no evidence about when or
how the officers learned that defendant did not have a FOID card or a CCL or that he was under
21. There is no factual basis to support suppressing that information. Accordingly, we affirm the
denial of defendant’s motion to suppress.
¶ 39 B. Jury Waiver
¶ 40 Defendant next argues that the trial court violated his right to a jury trial by accepting his
jury waiver without admonishing him of that right and without ensuring that he waived that right
knowingly and understandingly.
- 11 - No. 1-22-0455
¶ 41 Defendant’s posttrial motion did not raise his waiver of his right to a jury trial. Generally,
to preserve an issue for appeal, a defendant must object at trial and raise the issue in a posttrial
motion. [CITATION], ¶ 45. Failure to do so results in forfeiture of that issue.
Id. Defendant acknowledges that he did not preserve this issue, but he requests, and we will grant,
plain error review. See [CITATION], ¶ 11 (granting plain error review
of validity of jury waiver). The plain error doctrine allows a reviewing court to consider
unpreserved claims of error where (1) “a clear or obvious error occurred and the evidence is so
closely balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error” or (2) “a clear or obvious error occurred and that error
is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.” [CITATION], ¶ 48; see Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The violation of a defendant’s right to choose a
bench or a jury trial constitutes second-prong plain error. [CITATION], ¶ 18 (citing [CITATION]). The first step of plain error
review is determining whether an error occurred at all. [CITATION], ¶ 11.
¶ 42 Our federal and state constitutions guarantee the right to a jury trial. [CITATION], at
269. However, a defendant may waive his right to a jury trial. Id.; 725 ILCS 5/115-1 (West 2018).
For a jury waiver to be valid, it must be knowingly and understandingly made. [CITATION], at 269; 725 ILCS 5/103-6 (West 2018). A written jury waiver is one means by which a defendant
may waive his right to a jury, but a written waiver is not automatically valid. [CITATION], at 269-70. A jury waiver is generally valid when defense counsel waives that right in open court
and the defendant does not object. Id. at 270. A court does not need to give any specific
- 12 - No. 1-22-0455
admonishments for a waiver to be effective; rather, whether a jury waiver is valid depends upon
the facts and circumstances of each case. Id. at 269-70. There is no precise formula for determining
whether a jury waiver is valid. Id. at 269. “In essence, for a jury waiver to be effective, the trial
court must ensure that the defendant knows that the facts of his case would be determined by a
judge and not a jury and the resulting consequences of that decision.” [CITATION], ¶ 10 (citing [CITATION]). Defendant has the burden of
establishing that his jury waiver was invalid, and we review this issue de novo. Id.
¶ 43 We find no error based on the record before us. There is no dispute that defendant signed
a jury waiver form, which stated, “I, the undersigned, do hereby waive jury trial and submit the
above entitled cause to the Court for hearing.” The court addressed defendant, “I’m holding up a
jury waiver form that says you’re waiving your right to a jury trial. Did you sign that form, sir?”
Defendant responded, “Yes. Yes, sir.” The court then asked, “You are asking for a bench trial, not
a jury trial, sir; is that correct?” Defendant responded, “Correct.” The record suggests no hesitation,
uncertainty, or confusion on defendant’s part. There is no basis in the record for us to find that
defendant’s jury waiver was invalid.
¶ 44 Defendant argues that the trial court did not explain the difference between a bench trial
[SEGMENT 34]
and a jury trial, did not ask whether defendant understood that he had the right to a jury trial, and
did not ask whether his jury waiver was the product of any threats or promises. The law does not
require these admonishments or questions. See [CITATION] (“For a waiver to be
effective, the court need not impart to defendant any set admonition or advice.”). Defendant cites
no authority holding that the absence of these admonishments means his jury waiver was invalid.
- 13 - No. 1-22-0455
¶ 45 Defendant cites [CITATION] for the proposition that
“signing a [pre]printed [jury waiver] form has become such a routine formality that a perfunctory
signing—without proof that the form was read by the defendant and understood by him—cannot
be accepted as a substitute for an express waiver, understandingly made after careful interrogation
by the court.” [CITATION] suggests that the existence of a signed jury waiver form in the court file, on
its own, does not automatically constitute a valid waiver. That may be true, but it does not apply
to this case. In this case, the court held up defendant’s signed jury waiver form when he was in
court with his attorney, explained what the form meant, confirmed that defendant signed it, and
confirmed that defendant wanted a bench trial and not a jury trial. By contrast, in [CITATION], the trial
court did not ask the defendant if he wished to waive his right to a jury trial, did not read the waiver
form to him, did not ask whether he had read the waiver form, and did not ascertain whether the
defendant understood the waiver form. [CITATION] is distinguishable and does not compel
reversal.
¶ 46 Defendant also contends that he did not understand his right to a jury trial because he had
never gone to trial in a criminal case before. That may be true as well, but it does not mean that
defendant was a “stranger to the criminal justice system.” See [CITATION]. In fact,
on April 9, 2020, while this case was pending and defendant was out on bond, he was arrested and
charged with possession of a firearm while riding as a passenger in a vehicle. And prior to this
case, in 2018, defendant was convicted of possession of a controlled substance in Iowa. The record
does not support an inference that defendant was so unfamiliar with the criminal justice system
that he did not understand the difference between a jury trial and a bench trial. Accordingly, we
- 14 - No. 1-22-0455
find that defendant has not established any error, much less plain error, with respect to his jury
waiver.
¶ 47 C. Constitutionality of the AUUW Statute
¶ 48 Defendant next contends that the subsections of the AUUW statute under which he was
convicted are facially unconstitutional pursuant to the United States Supreme Court’s decision in
[CITATION]. Defendant
did not raise the constitutionality of the AUUW statute in his posttrial motion. However, a
challenge to the constitutionality of a statute may be raised at any time, even if the defendant did
not file a posttrial motion. [CITATION].
¶ 49 We presume statutes to be constitutional. [CITATION]. “To
overcome this presumption, the party challenging the statute must clearly establish that it violates
the constitution.” [CITATION]. We must construe the statute in a
manner that upholds its validity and constitutionality if we reasonably can. [CITATION].
Defendant makes a facial challenge to the constitutionality of the AUUW statute, which requires a showing that the statute is unconstitutional under any set of facts, i.e.,
there are no circumstances in which the statute could be validly applied. See [CITATION]. We review the constitutionality of any
statute de novo. [CITATION].
¶ 50 In Illinois, possession of firearms is governed by both civil and criminal statutes. The
Firearm Owners Identification Card Act (FOID Card Act) provides that “[n]o person may acquire
or possess any firearm *** without having in his or her possession a Firearm Owner’s
Identification Card previously issued in his or her name by the Department of State Police under
- 15 - No. 1-22-0455
the provisions of this Act.” 430 ILCS 65/2(a)(1) (West 2018). The State Police may deny an
application for a FOID card if the applicant is under 21 and does not have the written consent of
his or her parent or guardian. Id. § 8(b). The Firearm Concealed Carry Act requires an individual
to “possess a [CCL] at all times the licensee carries a concealed firearm” in public. 430 ILCS
66/10(g) (West 2018). To obtain a CCL, an applicant must be 21 or older. Id. § 25(1).
¶ 51 Relevant here, the AUUW statute provides that:
“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode,
legal dwelling, or fixed place of business, or on the land or in the legal dwelling of
another person as an invitee with that person’s permission, any pistol, revolver, stun
gun or taser or other firearm; [and]
***
(3) One of the following factors is present:
***
(A-5) the pistol, revolver, or handgun possessed was uncased,
loaded, and immediate accessible at the time of the offense and the person
possessing the pistol, revolver, or handgun has not been issued a currently
valid license under the Firearm Concealed Carry Act; or
***
- 16 - No. 1-22-0455
(C) the person possessing the firearm has not been issued a currently
valid Firearm Owner’s Identification Card; or
***
(I) the person possessing the weapon was under 21 years of age and
in possession of a handgun, unless the person under 21 is engaged in lawful
activities under the Wildlife Code ***.” 4 720 ILCS 5/24-1.6(a) (West
).
Defendant contends that these subsections of the AUUW statute are facially unconstitutional under
[CITATION].
¶ 52 In [CITATION], the United States Supreme Court announced the following test for the
constitutionality of firearms regulations:
“When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of
firearm regulation. Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s ‘unqualified command’ ” [CITATION].
As the Third District recently explained,
Count I of the indictment cited subsection (a)(3)(A) in addition to subsections (a)(3)(A-5) and
(C). We omit subsection (a)(3)(A) because, as best we can tell, it does not apply to defendant. The
evidence established that he possessed a pistol or handgun, but subsection (a)(3)(A) applies to firearms
“other than a pistol, revolver, or handgun.” 725 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2018).
- 17 - No. 1-22-0455
“[t]his text-and-history standard is a two-part inquiry. The first inquiry is: Does the plain
text of the second amendment cover an individual’s conduct? [Citation.] If not, the
regulation is constitutional because it falls outside the scope of protection. But if it does,
the individual’s conduct is presumptively protected by the second amendment, and we
move to the second inquiry: Is the State’s regulation ‘consistent with the Nation’s historical
tradition of firearm regulation[?]’ [Citation.]” [CITATION], ¶ 13.
¶ 53 First, we must identify the conduct at issue to determine whether that conduct falls under
the “plain text” of the second amendment. Defendant challenges three subsections of the AUUW
statute, which prohibit possessing a firearm in public (1) without a CCL if the firearm is uncased,
loaded, and immediately accessible; (2) without a FOID card; and (3) while under age 21. See 720
ILCS 5/24-1.6(a)(1), (a)(3)(A-5); (a)(1), (a)(3)(C); (a)(1), (a)(3)(I) (West 2018). Defendant argues
that merely “carrying a handgun in public” is the conduct at issue. We disagree. Possessing a
firearm is only the first part of the AUUW statute, subsection (a)(1). Possessing a firearm in public
becomes the crime of AUUW when one of the factors listed in subsection (a)(3) is present.
Certainly, defendant would not argue that the State could convict him of AUUW simply by proving
that he carried a firearm in public. Accordingly, we find that the conduct at issue is carrying a
[SEGMENT 35]
firearm outside in public without a CCL if the firearm is uncased, loaded, and immediately
accessible, or without a FOID card, or while being under 21.
¶ 54 Next, we must determine whether these three forms of conduct are protected by the “plain
text” of the second amendment. See [CITATION], 142 S. Ct. at 2129-30. The plain text
of the second amendment provides that “[a] well regulated Militia, being necessary to the security
- 18 - No. 1-22-0455
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. However, according to the Supreme Court, “[t]he Second Amendment *** ‘surely
elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-
defense.” [CITATION]. The difference between these two quotes is significant. The plain text of
the second amendment connects the right to bear arms with the necessity of a “well regulated
Militia.” U.S. Const., amend. II. By contrast, the Supreme Court’s interpretation does not mention
militias and, in fact, claims that the right to bear arms “does not depend on service in the militia.”
[CITATION]. Furthermore, [CITATION]
limits the second amendment’s scope to (1) citizens who are (2) law-abiding and (3) responsible,
and (4) who use firearms for self-defense. Id. at ___, 142 S. Ct. at 2156 (American government
has not “required law-abiding, responsible citizens to demonstrate a special need for self-
protection distinguishable from that of the general community in order to carry arms in public”
(internal quotation marks omitted)). The plain text of the second amendment contains none of these
terms.
¶ 55 We must decide whether to evaluate Illinois’s AUUW statute based on the actual plain text
of the second amendment or the Supreme Court’s interpretation of the second amendment. The
Illinois Supreme Court has suggested that the United States Supreme Court’s interpretation
controls: “Firearms that have been defaced so that they are untraceable by law enforcement ***
are not covered by the plain text of the second amendment because they are not typically used by
law-abiding citizens for lawful purposes.” (Emphasis added.) [CITATION],
¶ 27 (citing [CITATION]). This court has reached a similar conclusion. In [CITATION]
- 19 -
====== End of Part of a Court Ruling ====== No. 1-22-0455
[CITATION], this court explained that “[t]he Bruen Court could not have been
more clear that its newly announced test applied only to laws that attempted to regulate the gun
possession of ‘law-abiding citizens.’ ” Id. ¶ 37 (citing [CITATION] noted that Bruen repeats the phrase “law-abiding” 18 times between Justice Thomas’s
majority opinion and the concurrences. Id. Indeed, Bruen’s concluding paragraph states that New
York’s firearms regulatory scheme “violates the Fourteenth Amendment in that it prevents law-
abiding citizens with ordinary self-defense needs from exercising their right to keep and bear
arms.” (Emphasis added.) [CITATION]. In [CITATION], ¶ 27, this court maintained Baker’s conclusion that the Bruen test applies
only to “laws that attempt[ ] to regulate the gun possession of law-abiding citizens.” (Internal
quotation marks omitted.) The district court for the Northern District of Illinois has also “held,
post-Bruen, that the plain text of the Second Amendment does not cover the possession of firearms
by individuals who are not law-abiding.” 5 [CITATION]; see [CITATION] (unlawful users of controlled substances fall outside the second amendment’s protection
as they are not law-abiding).
¶ 56 One panel of this court has suggested that “possession of a firearm is ‘presumptively
constitutional’ ” regardless of whether one is “law-abiding.” See [CITATION], ¶¶ 88-89 (citing [CITATION]). Similarly, Justice Alito’s
concurrence claims that Bruen “decides nothing about who may lawfully possess a firearm.”
The decisions of federal district courts are not binding on us, but we may consider them as
persuasive authority. [CITATION], ¶ 37 n.3.
- 20 - No. 1-22-0455
[CITATION], 597 at U.S. at ___, 142 S. Ct. at 2157 (Alito, J., concurring). But we cannot square these
claims with the fact that [CITATION] expressly and repeatedly limits the second amendment’s scope to
law-abiding citizens. Indeed, the first paragraph of the opinion states that “the Second and
Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun
in the home for self-defense” and “a similar right to carry handguns publicly for their self-defense.”
Id. at ___, 142 S. Ct. at 2122 (majority opinion).
¶ 57 Subsections (a)(3)(A-5) and (a)(3)(C) of the AUUW statute apply exclusively to non-law-
abiding conduct. Possessing a concealed firearm outside the home without a CCL violates section
10(g)(1) of the Firearm Concealed Carry Act. 430 ILCS 66/10(g)(1) (West 2018). Possessing a
firearm without a FOID card violates section 2(a)(1) of the FOID Card Act. 430 ILCS 65/2(a)(1)
(West 2018). Violating the Firearm Concealed Carry Act or the FOID Card Act is not “law-
abiding” conduct so, according to [CITATION], the second amendment does not apply to that conduct.
See [CITATION], 2023 IL App (1st) 220328, ¶ 37 (“[CITATION] just does not apply” to those who are not law-
abiding). Enforcing subsections of the AUUW statute that simply criminalize what are already
violations of civil laws does not implicate the second amendment. Our analysis of the
constitutionality of subsections (a)(3)(A-5) and (a)(3)(C) ends at the first step of the [CITATION] test.
¶ 58 Subsection (a)(3)(I) prohibits a person who is under 21 from being “in possession of a
handgun, unless the person under 21 is engaged in lawful activities under the Wildlife Code.” 720
ILCS 5/24-1.6(a)(3)(I) (West 2018). Our supreme court has held that “the public carrying of
firearms by those persons under 21 years of age is conduct that falls outside the scope of the second
amendment” ([CITATION], 2015 IL 116834, ¶ 25), so “neither subsection (a)(3)(C)[ ] nor
(a)(3)(I) violates the second amendment rights of *** 18-to-20-year-old persons.” [CITATION]
- 21 - No. 1-22-0455
[CITATION], ¶ 38. Although [CITATION] and [CITATION] predate Bruen, their reasoning is
consistent with the “plain text” and historical analysis that Bruen requires. [CITATION] and [CITATION]
also did not conduct the “means-end” analysis that Bruen prohibits. Bruen, 597 U.S. at ___, 142
S. Ct. at 2127. We do not see how Bruen changes the holdings of [CITATION] or [CITATION]. Defendant
insists that “Mosley’s historical analysis is incorrect,” but he does not explain how. Regardless,
this court lacks authority to overrule the decisions of the Illinois Supreme Court. [CITATION]. Our supreme court has already concluded that subsection (a)(3)(I) of
the AUUW statute is not unconstitutional because it does not implicate the second amendment.
[CITATION]. We follow those holdings.
¶ 59 Defendant argues that the second amendment protects possession of firearms by “all
Americans” without limitation. He does not acknowledge that Bruen limits the second
amendment’s protections to law-abiding citizens, even though Bruen repeats that limitation more
than a dozen times. Similarly, defendant does not acknowledge that multiple Illinois courts have
interpreted Bruen as placing such a limitation on the second amendment. Defendant’s approach to
the “plain text” step of the Bruen test disregards Bruen’s own interpretation of whom the second
amendment protects: law-abiding citizens who possess firearms outside the home for purposes of
self-defense.
¶ 60 Defendant devotes much of his briefs to arguing that Illinois’s civil firearms regulation
regime, rather than the AUUW statute, is unconstitutional. For example, defendant complains that
obtaining a FOID card and a CCL “impose[ ] burdens” like completing a form, submitting a
photograph with the application, and completing 16 hours of firearms training. Defendant also
objects to Illinois requiring a parent or guardian’s permission for an 18-to-20-year-old to obtain a
- 22 - No. 1-22-0455
[SEGMENT 36]
FOID card. According to defendant, the fact that a teenager needs parental consent to own a firearm
is “an affront to *** deep constitutional tradition.” 6 That contention is meritless.
¶ 61 In any event, Bruen does not hold or even suggest that Illinois’s FOID Card or Firearm
Concealed Carry Acts are unconstitutional. It suggests the opposite. Bruen held that New York’s
firearm regulation regime was unconstitutional because it allowed state officials to deny a license
to carry a firearm in public based on an applicant’s failure to demonstrate “cause” or “need.” See
[CITATION] That is not how Illinois’s firearm
regulation regime operates. Rather, Illinois is what Bruen calls a “shall-issue” state because the
Illinois State Police shall issue a FOID card and a CCL to any applicant who meets the respective
statutory criteria. [CITATION] Bruen states that “nothing
in our analysis should be interpreted to suggest the unconstitutionality of *** ‘shall-issue’
licensing regimes.” [CITATION] This court has held that,
under Bruen, Illinois’s FOID Card Act and Firearm Concealed Carry Act are not facially
unconstitutional. [CITATION] We see no reason to revisit that
holding. Accordingly, we hold that subsections (a)(3)(A-5), (a)(3)(C), and (a)(3)(I) of the AUUW
statute are not facially unconstitutional under Bruen.
¶ 62 D. One-Act, One-Crime
The Office of the State Appellate Defender’s (OSAD) apparent position that 18-to-20-year-olds
are adults who are fully entitled to unrestricted ownership of firearms is difficult to square with OSAD’s
position that, for purposes of sentencing, defendants as old as 22 or 23 are effectively juveniles because
their brains have not finished developing. See, e.g., [CITATION]
- 23 - No. 1-22-0455
¶ 63 Finally, defendant argues that, if we affirm his convictions, we should vacate all but one
of them pursuant to the one-act, one-crime rule because each of the four counts of AUUW involved
the same act of possessing one firearm. The State agrees.
¶ 64 Defendant did not preserve this issue because he did not raise it in his posttrial motion. See
[CITATION]. However, he requests review under the second
prong of the plain error rule. One-act, one-crime violations fall under the second prong of the plain
error rule. [CITATION].
¶ 65 The one-act, one-crime rule prohibits multiple convictions based on the same physical act.
[CITATION]. An “act” is “ ‘any overt or outward
manifestation which will support a different offense.’ ” (Internal quotation marks omitted.) [CITATION] (quoting [CITATION]). Illinois courts have generally held that possession of one firearm is a single physical act
that can only support one conviction. See, e.g., id.; [CITATION] (finding
a one-act, one-crime violation where the defendant’s AUUW and armed habitual criminal
convictions were based on the possession of one firearm). We follow that authority and conclude
that defendant can only be convicted of one count of AUUW due to his possession of one firearm.
¶ 66 However, that does not undermine our conclusion that, for purposes of constitutionality
under the Bruen test, the “conduct” that the AUUW statute prohibits is possessing a firearm under
subsection (a)(1) plus one of the factors in subsection (a)(3). Defendant’s constitutional argument
and his one-act, one-crime argument involve different “halves” of the AUUW statute. The
constitutional argument addresses the nonphysical factors in subsection (a)(3) that make physical
possession of a firearm a crime. By contrast, the one-act, one-crime argument addresses physical
- 24 - No. 1-22-0455
possession of a firearm under subsection (a)(1). In other words, the one-act, one-crime analysis
asks how many firearms defendant possessed and how many convictions can be entered. The
constitutional analysis asks whether a state can criminalize the possession of a firearm based on
age and noncompliance with civil firearms regulations.
¶ 67 When multiple convictions violate the one-act, one-crime rule, we must vacate the less
serious convictions. [CITATION]. To determine which offense is less serious, we first
examine the potential punishment for each offense. [CITATION].
All four counts of AUUW in this case are Class 4 felonies that carry the same punishment. 720
ILCS 5/24-1.6(d) (West 2018). We must next examine which offense has the more culpable mental
state. [CITATION]. All four counts have the same mental state, which is
“knowingly.” 720 ILCS 5/24-1.6(a) (West 2018). We cannot determine which of the counts is the
most serious, so we remand to the trial court for that determination. [CITATION].
¶ 68 III. CONCLUSION
¶ 69 For the foregoing reasons, we affirm the denial of defendant’s motion to quash arrest and
suppress evidence, the trial court’s acceptance of his jury waiver, and the constitutionality of his
convictions for AUUW. However, we find that defendant’s four AUUW convictions for one act
of possessing a firearm violate the one-act, one-crime rule, and we remand to the trial court to
determine which counts should be vacated and which one should stand.
¶ 70 For the foregoing reasons, we affirm and remand.
¶ 71 Affirmed and remanded.
- 25 - No. 1-22-0455
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-CR-
; the Hon. John T. Gallagher, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Matthew M. Daniels, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Jessica R. Ball, and James J. Stumpf, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
- 26 -
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
2024 IL App (1st) 230395-U
No. 1-23-0395
Order filed September 16, 2024.
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
) No. 21 CR 14588
MENNARD ALLISON, )
) The Honorable
Defendant-Appellant. ) Michael R. Clancy,
) Judge Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court.
Justices Pucinski and Cobbs concurred in the judgment.
ORDER
¶1 Held: Defendant failed to establish that the aggravated unlawful use of a weapon
(AUUW) statute, on which his conviction rested, was facially unconstitutional or his conviction
void. However, the trial court failed to provide adequate admonishments following defendant’s
negotiated guilty plea. This court remanded the cause for proper admonishments.
¶2 On July 21, 2022, defendant entered into a negotiated guilty plea for aggravated unlawful
use of a weapon (AUUW), count 1, and was sentenced to four years in prison. In this direct
====== End of Part of Court Ruling ====== No. 1-23-0395
appeal, defendant contends the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West
2022)) is facially unconstitutional in violation of the second amendment (U.S. Const., amend II)
and [CITATION], and thus, void. He also contends the trial court failed to issue adequate post-plea admonishments. See Ill. S. Ct.
R. 605(c) (eff. Oct. 1, 2001). We affirm but remand the cause for proper admonishments.
¶3 BACKGROUND
¶4 The facts underlying defendant’s negotiated guilty plea to AUUW, plus video
surveillance, showed defendant stopped his vehicle, exited, and brandished a firearm, then shot
several rounds at the victim as she crossed the street at Chicago and Ridgeway Avenues in
Chicago. He did not then have a concealed carry license or a FOID card.
¶5 After defendant entered into the negotiated guilty plea, the trial court advised defendant
as follows:
“I need to advise you of your appellate rights however before you can appeal within 30
days of today’s date you need to file a written motion asking to withdraw your plea of guilty. In
that motion you must state all the reasons why you are entitled to have your guilty plea
withdrawn. If I were to grant that motion we would set the case down for trial. If I were to deny
the motion, you have 30 days from the date of denial to file a written notice of appeal. Any issue
or claim of error not raised in the original motion will be waived for appellate purposes. If you
are indigent a copy of the transcripts of today’s proceedings will be provided to you free of
charge and you would be provided an attorney to assist you in pursuing your appeal.”
¶6 In response to the court’s query, defendant stated he understood his “appellate rights.”
Defendant did not file a motion to withdraw his guilty plea. Rather, on January 18, 2023,
defendant, pro se, filed a motion for leave to file a late notice of appeal, which this court allowed
No. 1-23-0395
on March 8, 2023. Defendant stated that he did not file a notice of appeal within 30 days of
sentencing because he went to “NRC-Stateville” and then “Dixon” on “level 1 & 2,” and there
was a lockdown due to short-staffing and Covid restrictions, in addition to “medical writs every
week.” He asserted he “could not get a chance to go [to] the law library.” Defendant stated his
appeal had merit because there was a “lack of evidence, no weapon, no GSR-forensic, no victim,
no witness.” Appellate counsel was subsequently appointed. This appeal followed.
¶7 ANALYSIS
¶8 Where, as here, a defendant enters into a negotiated guilty plea, a subsequent motion to
withdraw that guilty plea is a condition precedent to filing an appeal. Ill. S. Ct. R. 604(d) (eff.
July 1, 2017); [CITATION]. Notwithstanding that, our supreme
court has made clear that “[a] defendant may argue that a criminal statute is unconstitutional, and
void ab initio, at any time.” [CITATION]; see also [CITATION] (holding, a void order may be attacked at any time in a court with
jurisdiction, and such challenges are not subject to forfeiture or other procedural bars). As such,
defendant’s guilty plea does not preclude him from raising his first contention, that he was
sentenced under a facially unconstitutional and void statute. [CITATION].
¶9 Legislative enactments enjoy a strong presumption of constitutionality, and the burden
then rests on the defendant to demonstrate the invalidity of a particular statute. [CITATION].
A reviewing court has the duty to construe a statute to uphold its validity whenever reasonably possible. Id. We review the constitutionality of a statute de novo.
Id.
¶ 10 Our review does not extend far, however, because defendant has failed to fulfill his
burden. The AUUW statute criminalizes public gun possession absent a concealed carry license.
No. 1-23-0395
720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2022). In Illinois, a person must be issued a FOID
card (see 430 ILCS 65/2(a) (West 2022)), in order to lawfully possess a gun, and in order to
obtain a concealed carry license (430 ILCS 66/25 (West 2022). Defendant argues this dual
licensing requirement violates his second amendment right to carry a handgun for self-defense
outside the home and is contrary to Bruen because the State cannot demonstrate the AUUW
statute is consistent with our nation’s historical tradition of firearm regulation.
¶ 11 However, Bruen itself essentially condoned the constitutionality of Illinois’ gun
licensing regime. [CITATION] (suggesting that “shall-issue”
licensing regimes, of which Illinois is one, are generally constitutional), [CITATION]
(concurring) (clarifying the court’s decision did not affect “shall-issue” licensing schemes like
those in Illinois and the licensing regimes may continue to be employed); [CITATION] (noting, “Illinois is known as a shall-issue state because the police
must issue a FOID card to any applicant who fulfills the criteria set forth in the statute”); see also
430 ILCS 66/10, 25 (West 2022). Even if the statements in Bruen regarding “shall-issue”
licensing regimes are considered dicta, as defendant claims, dicta in a court of last resort is, at
the very least, dispositive and binding absent a contrary decision. [CITATION] 1 Moreover, in [CITATION] this
court conducted an exhaustive analysis of the matter before concluding that the challenged
section of the AUUW statute is not facially unconstitutional under Bruen. Id. Other decisions of
this court have essentially concluded the same. [CITATION]
The supreme court in [CITATION], recently held:
“When a restraining order contains a finding that an individual poses a credible threat to the physical
safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned
from possessing firearms while the order is in effect. Since the founding, our Nation's firearm laws have
included provisions preventing individuals who threaten physical harm to others from misusing firearms.”
Id. This suggests reasonable regulation of firearm possession is constitutional.
No. 1-23-0395
(holding the FOID Card Act, Concealed Carry Act, and AUUW statute comply with federal law
and are not invalid under Bruen); see also [CITATION].
¶ 12 Defendant has not identified or sufficiently developed an argument to otherwise support
finding Illinois’ licensing scheme unconstitutional. See Bruen, 597 U.S. at 38, n. 9. To the extent
defendant argues the licensing regime in Illinois is subject to undue delay, defendant has no
standing to raise the argument because he does not point to any evidence showing he applied for
a FOID card or Concealed Carry license. See [CITATION] (noting that, to
have standing to bring a constitutional challenge, a person must show himself to be within the
class aggrieved by the alleged unconstitutionality). Regardless, this court recently rejected, out of
hand, similar criticisms of the Illinois licensing regime. See [CITATION]. Defendant’s constitutional argument therefore fails. His conviction is not void.
¶ 13 Defendant next contends the trial court failed to properly admonish him following his
negotiated guilty plea. We repeat that when a defendant enters into a negotiated guilty plea, a
[SEGMENT 2]
subsequent motion to withdraw that guilty plea is a condition precedent to filing an appeal. Ill. S.
Ct. R. 604(d) (eff. July 1, 2017); [CITATION]. As such, Rule
605(c) requires the trial court at sentencing to “advise the defendant substantially” on the
procedures for filing both a motion to withdraw the guilty plea and an appeal, and this court also
may entertain a defendant’s subsequent argument on appeal that the trial court has fallen short in
that regard. Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001); [CITATION] (dubbing this the “admonition exception”). Although a trial court
need not use the exact language of Rule 605(c), it must still convey the substance of the rule.
No. 1-23-0395
[CITATION] (defining substantial compliance as conveying the
rule’s essence); [CITATION]. We review the court’s
compliance with Rule 605(c) de novo. [CITATION].
¶ 14 Defendant now specifically contends the trial court gave incomplete Rule 605(c)
admonitions regarding the consequences of a successful post-plea motion, entirely neglected to
admonish defendant under Rule 605(c)(4), and failed to advise defendant that an attorney and
transcripts would be provided free of charge to aid him in preparing his motion to withdraw his
guilty plea. He asks that we remand the cause for proper admonishments.
¶ 15 Relevant to this case, “at the time of imposing sentence, the trial court shall advise the
defendant substantially as follows *** (3) that if the motion [asking to have the judgment
vacated and for leave to withdraw the plea of guilty] is allowed, the plea of guilty, sentence and
judgment will be vacated and a trial date will be set on the charges to which the plea of guilty
was made; (4) that upon the request of the State any charges that may have been dismissed as a
part of a plea agreement will be reinstated and will also be set for trial; [and] (5) that if the
defendant is indigent, a copy of the transcript of the proceedings at the time of the defendant’s
plea of guilty and sentence will be provided without cost to the defendant and counsel will be
appointed to assist the defendant with the preparation of the motions[.]” Ill. S. Ct. R. 605(c) (eff.
Oct. 1, 2001).
¶ 16 Here, the trial court stated that if it were to grant defendant’s motion to withdraw his
guilty plea, the court would set the case for trial. Contrary to 605(c)(3), the court omitted also
admonishing defendant, as required, “that the plea of guilty, sentence and judgment will be
No. 1-23-0395
vacated.” Ill. S. Ct. 605(c)(3) (eff. Oct. 1, 2001). 2 Indeed, the court also entirely omitted any
mention of 605(c)(4) in that the court did not advise defendant that the dismissed charges in this
case would be reinstated upon acceptance of the withdrawal motion. Last, the court admonished
defendant that if he was indigent, the transcripts of the proceeding would be provided free of
charge and he would be provided an attorney “to assist you in pursuing your appeal,” but
contrary to Rule 605(c)(5), neglected to advise defendant that the free transcripts and attorney
would be provided to assist in the motion to withdraw his guilty plea. Contrary to the State’s
contention otherwise, we agree with defendant that these admonishments were insufficient.
¶ 17 Illinois Supreme Court rules have the force of law, and they are not simply aspirational.
[CITATION]. Moreover,
we may not engraft exceptions or provisions onto a rule that do not exist. [CITATION]. Nor may we interpret a rule in such a way as to render any part of it meaningless
or superfluous. [CITATION]. Admonishments that lack any reference to
certain portions of Rule 605(c) altogether cannot be deemed adequate. [CITATION]; see also [CITATION] (noting, the admonitions must be
given and are insufficient where the trial court omits the rule’s substance).
¶ 18 Here, given that 605(c)(3) requires an admonition that the guilty plea, sentence and
judgment will be vacated, and that a new trial will commence on the charges, the judge simply
admonishing defendant that “a trial will be set” falls short. To hold otherwise would render part
of the Rule meaningless or superfluous, which is not permitted. [CITATION]. We thus agree with defendant’s contention that this omission could have “materially
The State concedes that “[i]t is true that the court did not specify that defendant’s sentence
would be vacated if her were allowed to withdraw his plea.” The State also concedes defendant was not
admonished pursuant to 604(c)(4).
No. 1-23-0395
contributed” to defendant’s failure to file a motion to withdraw his guilty plea because he wasn’t
informed that “a successful postplea motion was the route to having his plea vacated.” Also, the
absence of any admonishment involving 605(c)(4) was clearly inadequate. There was no
“essence” of the rule to conveyed. See [CITATION], ¶ 29 (finding admonishments insufficient where the trial court failed
to inform the defendant of “what he needed to do to challenge his guilty plea”). Thus, not only
was defendant unaware that his guilty plea and sentence would be vacated, but also that he could
face reinstated charges. See Ill. S. Ct. Rs. 605(c)(3), (c)(4) (eff. Oct. 1, 2001); [CITATION]
¶ 19 We further find the deficient admonishment as to defendant’s right to appointed counsel
on his postplea motion, under Rule 605(c)(5), concerning. A defendant is entitled to be informed
of the availability of appointed counsel for postplea proceedings and his right to receive a
transcript of the plea proceedings, because a “criminal defendant’s right to assistance of counsel
is fundamental.” [CITATION]
¶ 20 Contrary to the State’s argument otherwise, [CITATION], ¶¶ 48-51, is
distinguishable. There, although the trial court did not orally inform the defendant that he was
entitled to an attorney’s help with postplea motions, the court nonetheless stated without
qualification that the defendant was entitled to an attorney free of charge, along with transcripts.
In other words, the trial court’s statements did not definitively confine the availability of counsel
to the appeals process alone. Moreover, the supreme court found the written document, which
also was presented to the defendant, contained the complete and clear admonishment, noting:
“While the oral admonishments might have been more general about the right to counsel, the
written admonishment specifically made it clear [the] defendant was entitled to counsel to help
No. 1-23-0395
him prepare the motions.” Id. ¶ 51. On that basis, the supreme court found the defendant was
adequately notified that a court-appointed attorney would be available consistent with 605(c)(5). 3
¶ 21 Here, unlike in [CITATION], the trial court confined the availability of appointed counsel
to the appeals process (stating “If you are indigent a copy of the transcripts of today’s
proceedings will be provided to you free of charge and you would be provided an attorney to
assist you in pursuing your appeal”). See [CITATION], 2024 IL App (1st) 220586, ¶ 9 (finding the
trial court failed to admonish the defendant regarding his right to appointed counsel to vacate his
guilty plea under 605(c)(5), where the court stated, “If you are indigent and cannot afford an
attorney or transcript, both will be provided to you at no cost to help with the appeals process”).
Also, in this case, unlike in [CITATION], there were no written admonishments to clarify the
matter. The record further suggests that defendant lacked a clear understanding that appointed
counsel was available to help in filing a motion to withdraw his guilty plea. As reason for the
delay in challenging his conviction, for example, defendant cited a number of logistical problems
and his lack of access to the law library.
¶ 22 Thus, to the extent the State maintains there was no prejudice resulting from the
inadequate admonishments and suggests any error was harmless, we reject that argument.
Nothing in [CITATION] suggests that a prejudice analysis follows the question of whether a trial
court substantially complied with Rule 605(c). See also [CITATION], 181 Ill. 2d 24, 30
(1998) (essentially rejecting a prejudice analysis as to admonishments); [CITATION], 359 Ill.
App. 3d 863, 866 (2005) (same); but see [CITATION], 344 Ill. App. 3d 558, 563 (2003)
The State maintains the [CITATION] court’s reliance on two prior cases ([CITATION], 342 Ill.
App. 3d 872 (2003) and [CITATION], 221 Ill. 2d 338 (2006)) support an affirmance here. We do not believe
[CITATION]’s citation to those cases can be divorced from its additional reliance on the written
admonishment to support its conclusion of compliance with Rule 605(c)(5). Moreover, in both [CITATION] and
[CITATION], the trial courts similarly made general statements as to the availability of appointed counsel without
confining the matter to appeals only.
[SEGMENT 3]
No. 1-23-0395
(applying a prejudice analysis); cf. J.T., [CITATION] (considering prejudice in the
context of whether to grant supervisory relief for the trial court’s allegedly improper
admonitions). In fact, because a defendant who fails to file a postplea motion under Rule 605(c),
loses his appeal rights completely, and the appellate court is required to dismiss his appeal, a trial
court’s inadequate compliance with 605(c) cannot be harmless error. [CITATION] (noting, a defendant’s “failure to file a
timely Rule 604(d) motion precludes the appellate court from considering the appeal on the
merits” and requires dismissal); see also [CITATION]. This is
because we cannot speculate what defendant would have done had he been given the appropriate
admonishments. See id.
¶ 23 For the reasons stated, the trial court’s deficient admonitions did not put defendant on
notice of the steps needed to preserve an appeal under Rule 604(d). See [CITATION]. Based upon the trial court’s failure to substantially
admonish defendant pursuant to Rule 605(c), we find that defendant’s failure to file a Rule
604(d) motion is excused, and this court must remand the cause to the trial court for strict
compliance with Rule 605(c). [CITATION].
¶ 24 CONCLUSION
¶ 25 For the reasons stated, defendant’s conviction is not void, and we thus affirm the
judgment of the trial court in that regard. However, we remand the cause for further proceedings,
including proper 605(c) admonishments, consistent with this order. See [CITATION].
¶ 26 Affirmed in part; remanded.
2024 IL App (1st) 221031
SIXTH DIVISION
August 30, 2024
No. 1-22-1031
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 18 CR 1248
)
)
ROBERT THOMPSON, ) Honorable
) Maria Kuriakos-Ciesel,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
OPINION
JUSTICE TAILOR delivered the judgment of the court, with opinion.
Justices Hyman and C.A.Walker concurred in the judgment and opinion.
¶1 In January 2018, Robert Thompson, then 18 years old, was charged by indictment with,
inter alia, eight counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6
(West 2018)). Thompson pled guilty on August 16, 2018, to one count alleging that he
knowingly carried a handgun, pistol, or revolver on or about his person, when not on his own
land or in his abode, legal dwelling, or fixed place of business, or on the land or in the legal
dwelling of another person as an invitee with that person’s permission, and he had not been
issued a currently valid firearm owner’s identification (FOID) card at the time of the offense. Id. 1-22-1031
§ 24-1.6(a)(1), (a)(3)(C). The trial court sentenced Thompson to two years’ probation pursuant to
the First Time Weapon Offender Program (730 ILCS 5/5-6-3.6 (West 2018)), which included the
conditions that he not violate the criminal statutes of any jurisdiction, complete drug testing, and
complete 50 hours of community service.
¶2 On December 19, 2018, the State filed a petition for violation of probation (VOP)
alleging that Thompson was arrested for resisting arrest. After several continuances, the State
filed a second VOP petition on July 25, 2020, after Thompson had been arrested and charged
with possession of a stolen motor vehicle (PSMV). Between December 20, 2018, and July 25,
2020, Thompson had completed his community service, graduated from high school, tested
negative for drugs, entered counseling, and been accepted to college. The case was continued
pending the resolution of the new arrests.
¶3 On February 1, 2022, the State informed the court that Thompson had been acquitted of
the resisting arrest charge. Defense counsel requested a conference under Illinois Supreme Court
Rule 402 (eff. July 1, 2012) to resolve the VOP petitions. After the conference, defense counsel
filed a motion asking that Thompson’s probation be terminated satisfactorily, noting that,
pursuant to section 5-6-2(c-1) of the Unified Code of Corrections (730 ILCS 5/5-6-2(c-1) (West
2020)), Thompson should have received a 90-day credit against the term of his probation
because he obtained a high school diploma, which would have resulted in Thompson’s probation
terminating on May 17, 2020. Counsel further argued that pursuant to [CITATION], the trial court could not extend Thompson’s probation beyond its expiration
date without a hearing and a finding of a violation and, because no such hearing occurred
between December 20, 2018, and May 17, 2020, Thompson’s probation was wrongly extended
1-22-1031
and his second arrest for PSMV in July 2020 could not form the basis of a new violation.
¶4 At the hearing on Thompson’s motion on June 14, 2022, the State argued that Thompson
did not receive the 90-day credit because he did not petition to have his probation shortened upon
graduation and the second VOP occurred before the original expiration of the probation period in
August 2020. Defense counsel countered that the 90-day credit automatically applied. The trial
court denied Thompson’s motion, finding that the first VOP tolled the termination date of the
probation and the delay that occurred on the resisting arrest charge was due to the COVID-19
pandemic. In addition, the court found that it could find a VOP occurred even if Thompson was
acquitted of the resisting charge and, therefore, even though Thompson was ultimately acquitted
of that, the VOP based on the resisting charge was still pending and continued to toll the
probation period.
¶5 Defense counsel filed a motion to reconsider. On June 29, 2022, the trial court was
informed that Thompson pled guilty to PSMV and was sentenced to probation. There was a
hearing on the second VOP. The State presented a certificate of conviction as proof of
Thompson’s commission of PSMV. The trial court terminated Thompson’s probation
unsatisfactorily, and judgment was then entered on Thompson’s conviction for AUUW.
¶6 ANALYSIS
¶7 On appeal, Thompson advances a single constitutional claim. Relying on [CITATION], he argues that the AUUW statute (720 ILCS
5/24-1.6(a)(1), (a)(3)(c) (West 2018)), which prohibits the possession of a gun by those 18- to
20-year-olds who have not been issued a FOID card, is facially unconstitutional because it
infringes upon “the Second Amendment right to bear arms of individuals whose ability to obtain
1-22-1031
a FOID card is significantly burdened because of their age.” Thompson focuses on the portion of
the Firearm Owners Identification Card Act (FOID Card Act) that states in relevant part that an
individual 18 to 20 years of age is able to obtain a FOID card when “he or she has the written
consent of his or her parent or legal guardian to possess and acquire firearms and firearm
ammunition.” 430 ILCS 65/4(a)(2)(i) (West 2018). The State responds to Thompson’s facial
challenge by arguing that Thompson misreads both Bruen and the second amendment as
conferring an unqualified entitlement to possess and carry firearms without restriction.
¶8 Before addressing the merits of Thompson’s argument, we must address the State’s
argument that, because Thompson plead guilty in this case, he has waived all nonjurisdictional
defects, even constitutional ones, and his appeal must be dismissed. Once a voluntary plea has
been entered, the plea waives all irregularities or errors, including those of a constitutional
dimension. [CITATION]. However, Thompson cites our
decision in [CITATION] to support his argument that his
guilty plea does not negate his ability to raise a constitutional challenge to the AUUW statute.
¶9 In [CITATION], this court, relying on the United States Supreme Court’s decision in Class v.
United States, 583 U.S. 174 (2018), held that an as-applied constitutional challenge could be
raised even after a negotiated guilty plea. See [CITATION]. Therein, we held that, where a defendant’s constitutional claim does not contradict the terms of
his indictment or his plea agreement and does not focus upon case-related constitutional defects
that occurred prior to the entry of his guilty plea, the defendant does not waive his constitutional
claim by voluntarily pleading guilty. Id. ¶ 21. In so holding, we noted that in Class the United
States Supreme Court looked back at its holdings on the nature of guilty pleas, which
[SEGMENT 4]
1-22-1031
“ ‘stretche[d] back nearly 150 years,’ ” and found that they reflected, in broad outline, an
understanding that “a guilty plea does not bar a claim on appeal ‘where on the face of the record
the court had no power to enter the conviction or impose the sentence.’ ” (Internal quotation
marks omitted.) [CITATION]. ¶ 20 (quoting [CITATION]). Hence, in [CITATION] we held that,
because the defendant’s as-applied vagueness challenge to the armed habitual criminal statute
under which he was prosecuted did not contradict the terms of his indictment and plea agreement
and did not focus upon any case-related defects that occurred prior to the entry of his guilty plea,
but rather focused on the State’s power to prosecute his admitted conduct, his voluntary plea did
not bar his appeal. [CITATION]. ¶ 21.
¶ 10 Thompson presents a facial challenge to the AUUW statute, not an as-applied challenge
as the defendant in [CITATION] made. Although facial and as-applied constitutional challenges are
both intended to address constitutional infirmities, they are not interchangeable. See [CITATION]. An as-applied challenge requires a
showing that the statute violates the constitution as it applies to the facts and circumstances of
the challenging party. [CITATION]. In contrast, a facial
challenge requires a showing that the statute is unconstitutional under any set of facts; i.e., the
specific facts in the challenging party’s case are irrelevant. [CITATION]. A defendant may raise a facial
challenge to the statute under which he has been convicted at any time, even after a guilty plea.
See [CITATION].
Therefore, we will consider Thompson’s constitutional claim on the merits.
¶ 11 The second amendment states: “A well regulated Militia, being necessary to the security
1-22-1031
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.
Const., amend. II. “A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid.” [CITATION],
¶ 10. “Statutes are presumed constitutional, and the party challenging the constitutionality of a
statute has the burden of clearly establishing its invalidity. A court must construe a statute so as
to uphold its constitutionality if reasonably possible.” [CITATION]. We
review de novo whether a statute is facially unconstitutional. [CITATION], ¶ 9. As
the United States Supreme Court recently confirmed, a facial attack on the constitutionality of a
statute is the “ ‘most difficult challenge to mount successfully.’ ” [CITATION] (quoting [CITATION]).
¶ 12 Thompson was convicted of possessing a gun without having been issued a FOID card.
Section 24-1.6(a)(1), (a)(3)(C) of the Code, which contains the FOID card requirement, states:
“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode,
legal dwelling, or fixed place of business, *** any pistol, revolver, stun gun or
taser or other firearm; [and]
***
(3) One of the following factors is present:
***
1-22-1031
(C) the person possessing the firearm has not been issued a
currently valid Firearm Owner’s Identification Card[.]” 720 ILCS 5/24-
.6(a)(1), (a)(3)(C) (West 2018).
¶ 13 The FOID Card Act, which establishes requirements for obtaining a FOID card, was
enacted in 1968 to “identify[ ] persons who are not qualified to acquire or possess firearms,
firearm ammunition, stun guns, and tasers.” 430 ILCS 65/1 (West 2018). Section 4 of the FOID
Card Act states that an applicant for a FOID card must, among other requirements, “[s]ubmit
evidence to the Department of State Police[1] that”:
“He or she is 21 years of age or over, or if he or she is under 21 years of age that he or
she has the written consent of his or her parent or legal guardian to possess and acquire
firearms and firearm ammunition and that he or she has never been convicted of a
misdemeanor other than a traffic offense or adjudged delinquent, provided, however, that
such parent or legal guardian is not an individual prohibited from having a Firearm
Owner’s Identification Card and files an affidavit with the Department as prescribed by
the Department stating that he or she is not an individual prohibited from having a
Card[.]” Id. § 4(a)(2)(i).
“[E]very applicant found qualified *** shall be entitled to a [FOID] Card,” and all applications
shall be approved or denied “within 30 days from the date they are received.” Id. § 5(a).
¶ 14 Prior to [CITATION], 554 U.S. 570 (2008), dictated our analysis
of second amendment issues. In [CITATION], the United States Supreme Court confirmed that the right
During the time that Thompson’s case has been pending, the Department of State Police has been
officially renamed the Illinois State Police, and the FOID Card Act now reflects that name. Pub. Act 102-538 (eff.
Aug. 20, 2021) (amending 20 ILCS 5/5-15); Pub. Act 102-237 (eff. Jan. 1, 2022) (amending 430 ILCS 65/4).
1-22-1031
to keep and bear arms was subject to long-standing prohibitions on the possession of firearms by
felons and the mentally ill, to laws forbidding the carrying of firearms in sensitive places like
schools and government buildings, and to laws imposing conditions and qualifications on the
commercial sale of firearms. Id. at 626-27.
¶ 15 In upholding a law-abiding citizen’s right to possess an operable handgun “in defense of
hearth and home,” the [CITATION] Court, using a two-step test that “combine[d] history with means-
end scrutiny” ([CITATION]), stated that the second amendment’s guarantee of an
individual right to possess and carry weapons in cases of confrontation, like the first
amendment’s right of free speech, was not unlimited. [CITATION]. The
[CITATION] Court did “not read the Second Amendment to protect the right of citizens to carry arms
for any sort of confrontation” and found that the right to keep and bear arms was not “a right to
keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
(Emphasis omitted.) Id. at 595, 626.
¶ 16 Roughly two years later in [CITATION], the
Court extended the second amendment’s individual right to keep and bear arms to the states
under the fourteenth amendment. In so doing, the Court reiterated its central holding in [CITATION]
“that the Second Amendment protects the right to possess a handgun in the home for the purpose
of self-defense.” Id. In addition, the Court reiterated that the second amendment right was far
from absolute and noted that the doctrine of incorporation “does not imperil every law regulating
firearms.” Id. at 786.
¶ 17 After [CITATION] and [CITATION], Illinois courts applied a two-part approach when analyzing
the constitutionality of a restriction on the second amendment right to bear arms. [CITATION]
1-22-1031
County of Cook, [CITATION], ¶ 41. Under this approach, the court first conducted a threshold
inquiry into whether the restricted activity is protected by the second amendment. This requires a
textual and historical analysis to determine whether the challenged law imposed a burden on
conduct that was understood to be within the scope of the second amendment’s protection at the
time of ratification. Id. The regulated activity is categorically unprotected if the challenged law
applies to conduct falling outside the scope of the second amendment right. Id. However, “if the
historical evidence is inconclusive or suggests that the regulated activity is not categorically
unprotected,” then the court, applying the appropriate level of means-ends scrutiny, conducts a
second inquiry into the strength of the government’s justification for restricting or regulating the
exercise of second amendment rights. (Internal quotation marks omitted.) Id. ¶ 42; see [CITATION], 701-04 (7th Cir. 2011).
¶ 18 Two years ago, in Bruen, [CITATION], the United States Supreme Court decided a
challenge to a New York licensing regime that regulated gun possession and carry. Under New
York’s licensing requirements, individuals who wanted to possess a firearm at home were
required to convince a licensing officer that they were of good moral character and did not have
a history of crime or mental disease and that no good cause for denial existed. Id. at 11.
Conversely, individuals who wanted to carry a firearm outside of their home had to show “proper
cause” to be issued a license. (Internal quotation marks omitted.) Id. at 12. This proper cause
[SEGMENT 5]
requirement meant that people had to “demonstrate a special need for self-protection
distinguishable from that of the general community.” (Internal quotation marks omitted.) Id.
¶ 19 In analyzing the question before it, the Court announced a new framework for evaluating
1-22-1031
the constitutionality of firearm regulations. [CITATION]. The Court found that the two-step
approach used since Heller was “one step too many” and condemned the strict scrutiny analysis
in the second amendment context, opting instead to limit the analysis to “plain text” and history.
[CITATION]. Under Bruen’s new framework, courts first need to determine whether “the
Second Amendment’s plain text covers an individual’s conduct.” [CITATION]. If it does, then the
Constitution “presumptively protects that conduct,” and the government “must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm
regulation.” [CITATION]. “Only then may a court conclude that the individual’s conduct falls outside the
Second Amendment’s unqualified command.” (Internal quotation marks omitted.). [CITATION].
Applying this new standard to New York’s “proper cause” law, the Court first found that, under
the plain text of the second amendment, the individual right to bear arms extended outside of the
home and, therefore, the regulated activity was presumptively permitted. [CITATION]. The Court
then looked to whether the government could prove that the regulation aligned with our nation’s
history of firearm regulation at the time the second amendment was enacted. [CITATION].
Finding that the New York law could not be squared with history in that the government failed to
establish “a tradition of broadly prohibiting the public carry of commonly used firearms for self-
defense” and failed to identify “any such historical tradition limiting public carry only to those
law-abiding citizens who demonstrate a special need for self-defense,” the Court concluded that
the law violated the second and fourteenth amendments. [CITATION]; see [CITATION].
¶ 20 In so holding, the Court specifically differentiated between may-issue licensing regimes,
where “authorities have discretion to deny concealed-carry licenses even when the applicant
1-22-1031
satisfies the statutory criteria,” and shall-issue licensing regimes, where “authorities must issue
concealed-carry licenses whenever applicants satisfy certain threshold requirements, without
granting licensing officials discretion to deny licenses based on a perceived lack of need or
suitability.” [CITATION]. The Court held the New York licensing regime in question
was an unconstitutional may-issue regime, but it cautioned its holding should not be
misconstrued as finding existing shall-issue regimes, including Illinois’s, unconstitutional:
“To be clear, nothing in our analysis should be interpreted to suggest the
unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a
general desire for self-defense is sufficient to obtain a [permit].’ [CITATION.] Because these
licensing regimes do not require applicants to show an atypical need for armed self-
defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from
exercising their Second Amendment right to public carry. [CITATION.] Rather, it appears
that these shall-issue regimes, which often require applicants to undergo a background
check or pass a firearms safety course, are designed to ensure only that those bearing
arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ [CITATION.]” [CITATION.]
¶ 21 Recently, in [CITATION], the Court provided some clarity on
the [CITATION] test. [CITATION] was indicted for possessing a firearm while subject to a domestic violence
restraining order in violation of 18 U.S.C. § 922(g)(8) (2018). He argued that section 922(g)(8)
violated on its face the second amendment right to keep and bear arms. Applying [CITATION], the
Court rejected [CITATION]'s facial challenge to section 922(g)(8), finding that “[a]n individual found
by a court to pose a credible threat to the physical safety of another may be temporarily disarmed
1-22-1031
consistent with the Second Amendment.” [CITATION]. The court
further found that section 922(g)(8) did not broadly restrict arms use by the general public,
unlike the regulation in [CITATION], and only restricted firearm possession for a limited duration. [CITATION].
¶ 22 The [CITATION] Court clarified the test it set out in [CITATION]. The Court explained that, even if a
law regulates the possession of firearms for a permissible reason, the law may nevertheless
violate the second amendment if it regulates arms bearing “to an extent beyond what was done at
the founding.” [CITATION]. At the same time, the court explained that a
challenged regulation need not be a “ ‘historical twin’ ” to its precursors but must only be
considered “ ‘analogous enough to pass constitutional muster.’ ” [CITATION]
(quoting [CITATION]). The law need not be a “ ‘dead ringer.’ ” [CITATION]
(quoting [CITATION]). Stated differently, the Court’s recent second amendment
precedents “were not meant to suggest a law trapped in amber.” [CITATION] (“[T]he Second Amendment permits more than just those regulations identical to ones that could
be found in 1791.”).
¶ 23 We need not go through the exercise of applying the test announced in [CITATION] and
clarified in [CITATION] here because Illinois’s FOID Card Act establishes an objective shall-issue
licensing regime, which [CITATION] recognized was not unconstitutional. See [CITATION]. The [CITATION] Court explicitly stated, “Going forward, therefore, the 43 States that employ
objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do
so.” [CITATION] (Kavanaugh, J., concurring, joined by Roberts, C.J.).
1-22-1031
¶ 24 In Illinois, individuals between the ages of 18-20 are not categorically banned from
obtaining a FOID card. Rather, the Illinois State Police shall issue a FOID card when an
individual who is 18 to 20 years of age establishes
“that he or she has the written consent of his or her parent or legal guardian to possess
and acquire firearms and firearm ammunition and that he or she has never been convicted
of a misdemeanor other than a traffic offense or adjudged delinquent, provided, however,
that such parent or legal guardian is not an individual prohibited from having a Firearm
Owner’s Identification Card and files an affidavit with the Department as prescribed by
the Department stating that he or she is not an individual prohibited from having a
Card[.]” 430 ILCS 65/4(a)(2)(i) (West 2018).
¶ 25 In [CITATION], the defendant sought reversal of
his AUUW conviction premised on lack of a FOID Card, arguing that his conviction could not
stand under [CITATION]. We rejected Gunn’s challenge based on [CITATION] distinction between “shall-
issue” and “may-issue” licensing regimes. Id. ¶ 19 (citing [CITATION], 597 U.S. at 38 n.9). We stated,
“[t]here is no need for us to engage in a historical analysis of firearm regulation when the
Supreme Court has already done so and explicitly sanctioned the use of background checks.” Id.
As we recognized in [CITATION] unequivocally left intact a state’s ability to impose licensing
regimes for the possession and public carry of firearms and to criminalize such acts when done
without a license.
¶ 26 The requirement placed on 18- to 20-year-olds to obtain parental consent under the FOID
Card Act is similar to requirements that an applicant complete a firearm safety course and pass a
background check, which [CITATION] found were permissible restrictions. See [CITATION], 597 U.S. at 38
====== End of Part of a Court Ruling ====== 1-22-1031
n.9; [CITATION], ¶ 19. Like a firearm safety course and background check,
parental consent serves to help ensure that FOID card applicants in that emerging adult age
group are mature and responsible enough to possess and use a firearm. See [CITATION],
(“The parent or guardian signature provision provides for an
individualized assessment of the applicant’s fitness for possession of a firearm by a person likely
to be in the best position to make such an evaluation.”). Unlike the may-issue licensing statute at
issue in Bruen, here the Illinois State Police are not empowered to deny a FOID card on a
discretionary “perceived lack of need or suitability.” [CITATION].
¶ 27 Moreover, the “absence of a parent or guardian signature is not a ‘veto’ on the ability of a
person between 18 and 21 to get a FOID card in Illinois.” [CITATION]. Rather, an
18- to 20-year-old who does not have parental consent may petition the Firearm Owner’s
Identification Card Review Board or the circuit court for relief, and upon a sufficient showing
regarding the applicant’s criminal record, lack of dangerousness, and the public interest, he may
[SEGMENT 6]
be granted a FOID card. 2 430 ILCS 65/10(c) (West 2022). And administrative decisions of the
Firearm Owner’s Identification Card Review Board are subject to judicial review. Id. § 11(a).
¶ 28 Accordingly, [CITATION]’s validation of the Illinois FOID Card Act’s objective, shall-issue
licensing regime is, standing alone, a sufficient basis on which to reject Thompson’s facial
challenge to the AUUW statute. See [CITATION]’s holding is
inapplicable to Illinois’s FOID Card Act because Illinois is a shall-issue state); [CITATION]
At the time of Thompson’s indictment, he would have had to petition the Director of State Police or the
circuit court for relief from the parental consent requirement. The subsequent creation of the Firearm Owner’s
Identification Card Review Board (see Pub. Act 102-237 (eff. Jan. 1, 2022) (amending 430 ILCS 65/10)) does not
affect our analysis on this issue.
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Thompson, [CITATION], ¶¶ 51-60) (rejecting argument that the AUUW statute
is facially unconstitutional under the second amendment, without engaging in a fulsome second
amendment analysis, after finding that Bruen explicitly held that Illinois’s concealed carry
licensing statute comports with the second and fourteenth Amendments); [CITATION], ¶ 41 (Illinois’s licensing regime has a shall-issue framework that was
endorsed by Bruen); [CITATION], ¶ 61 (Illinois is a shall-issue
state and therefore Illinois’s FOID Card Act and Firearm Concealed Carry Act are not facially
unconstitutional under Bruen), pet. for leave to appeal pending, No. 130708 (filed May 22,
2024). Accordingly, we reject Thompson’s facial challenge to the AUUW statute as it relates to
the constitutionality of the parental consent requirement of the FOID Card Act for those between
the ages of 18 and 20. Contrary to Thompson’s argument, Bruen’s distinguishing language is not
mere dicta. Rather, the Bruen Court was clear and precise in its reasoning to specifically exclude
objective, shall-issue statutory licensing regimes from its decision.
¶ 29 Even if Bruen’s distinguishing language is dicta, the parental consent requirement
imposed on 18- to 20-year-olds to obtain a FOID card does not violate the second amendment
under the Bruen framework. For review, under Bruen’s new framework, courts determine
whether “the Second Amendment’s plain text covers an individual’s conduct.” Bruen, 597 U.S.
at 24. If it does, the Constitution “presumptively protects that conduct,” and the government
“must then justify its regulation by demonstrating that it is consistent with the Nation’s historical
tradition of firearm regulation.” Id. In its most recent second amendment decision, the United
States Supreme Court’s analysis was limited to the second Bruen step, presumably because the
parties did not dispute Rahimi was covered by the plain text of the second amendment. See
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[CITATION], 144 S. Ct. 1889.
¶ 30 Thompson argues that under the first part of the Bruen framework, the plain text of the
second amendment covers his possession of a firearm. He contends that, when a constitutional
challenge is rooted in an individual’s status, such as an 18- to 20-year-old individual, the
question we must answer is whether the individual qualifies as among the “people” who may
enjoy “the right of the people to keep and bear Arms.” U.S. Const., amend. II; see, e.g., [CITATION] (“[o]rdinary, law-abiding, adult citizens that are 18
to 20-year-olds are members of the people” for second amendment purposes). Thompson also
argues that, under the second part of the Bruen framework, the State cannot show that the
regulation is consistent with the nation’s history and tradition of firearm regulation.
¶ 31 We assume, as we did in [CITATION] and [CITATION], that the possession of a firearm outside the home
by persons 18 to 20 years old is covered by the second amendment’s plain text for the sole
purpose of reaching Thompson’s second argument under Bruen. See [CITATION]
(protections of the second amendment extend to “ordinary, law-abiding, adult citizens”); [CITATION]. We begin our analysis of Thompson’s argument that the State cannot show that
an age-based parental consent regulation is consistent with the nation’s history and tradition of
firearm regulation with a review of Illinois Supreme Court cases addressing age-based
restrictions under the second amendment.
¶ 32 Our supreme court has repeatedly rejected challenges to statutes that prohibit firearm
possession based on age. In [CITATION], the defendant argued
that the section in the unlawful possession of a firearm statute that barred persons under the age
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of 18 from possessing any firearm which may be concealed upon the person violated the second
amendment because, “at the time the second amendment was drafted and ratified, the right to
keep and bear arms extended to persons 16 and 17 years of age.” Our supreme court rejected the
defendant’s argument, reasoning that after Heller several courts undertook a historical
examination of laws prohibiting the possession of firearms by minors and concluded that “the
possession of handguns by minors is conduct that falls outside the scope of the second
amendment’s protection.” [CITATION] ¶¶ 26-27. The [CITATION] court expounded: “these cases explain that,
although many colonies permitted or even required minors to own and possess firearms for
purposes of militia service, nothing like a right for minors to own and possess firearms has
existed at any time in this nation’s history,” and “laws banning the juvenile possession of
firearms have been commonplace for almost 150 years and both reflect and comport with a
‘longstanding practice of prohibiting certain classes of individuals from possessing firearms—
those whose possession poses a particular danger to the public.’ ” (Emphases omitted.) [CITATION] ¶ 27
(quoting [CITATION]). The court found no need to
repeat the historical evidence set forth in these decisions and found it only necessary to “express
our agreement with the obvious and undeniable conclusion that the possession of handguns by
minors is conduct that falls outside the scope of the second amendment’s protection.” [CITATION]
¶ 33 Two years later, our supreme court found sufficient historical precedent to allow
meaningful firearm regulation for 18- to 20-year-olds. In [CITATION],
¶ 33, the defendant argued that his AUUW convictions under the “FOID card” subsections,
(a)(1), (a)(3)(C), the same subsections Thompson challenges here, “unconstitutionally disarm[ed]
young adults who are 18 to 20 years old in violation of the second amendment.” Our supreme
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court found “the FOID card requirement of subsection (a)(3)(C) is consistent with [the Illinois Supreme Court’s] recognition that the second amendment right to possess firearms is still subject to meaningful regulation.” (Internal quotation marks omitted.) Id. ¶ 36. Accordingly, the court found that subsections (a)(1), (a)(3)(C) of the AUUW statute did not violate the second amendment.
¶ 34 Shortly thereafter, in [CITATION], our supreme court also rejected the argument that subsection (a)(1), (a)(3)(I) of the AUUW statute, the subsection of the statute prohibiting persons under the age of 21 from possessing handguns who are not engaged in lawful hunting activities, violated the second amendment. Referencing its conclusion in [CITATION] that “age based restrictions on the right to keep and bears arms are historically rooted,” our supreme court explained that those restrictions also applied “to those persons under 21 years of age.” Id. ¶ 25. The court further stated that it had previously “cited with approval several cases finding it evident from a review of the relevant historical record that age based regulations on minors’ access to firearms for the purpose of ensuring public safety were commonplace and persisted well beyond the Founding Era.” Id. ¶ 24 (citing [CITATION], ¶ 27).
¶ 35 Although these Illinois Supreme Court decisions were issued before Bruen and do not follow the exact Bruen framework, this court has nevertheless concluded that the reasoning in these cases “is consistent with the ‘plain text’ and historical analysis that Bruen requires.” [CITATION] (finding that in [CITATION], and [CITATION], our supreme court held that there is sufficient historical precedent to establish that those under 21 years of age are outside the scope of the second amendment); [CITATION] (“although our supreme court’s decisions were issued
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before Bruen, the court in these cases did not apply the means-end scrutiny that Bruen rejected,”
and their reasoning is consistent with the Bruen framework); [CITATION]; ¶¶ 9, 16 (the laws challenged, including a subsection of the AUUW statute, “have
never been justified by application of the means-end scrutiny that Bruen eliminated,” and
recognizing that our supreme court has held that the challenged subsections were “firmly
[SEGMENT 7]
justified by text and historical tradition”); [CITATION], ¶¶ 31, 34
(finding that, even if “a minor’s right to keep and bear arms is covered by the second
amendment’s plain text, our supreme court has already answered the second step” of the Bruen
framework, noting that the court “explicitly addressed the historical roots of age-based
restrictions on the right to keep and bear arms” and “determined that age-based restrictions are
historically rooted in this nation’s traditions”).
¶ 36 We return to our historic tradition. The requirement of parental consent for a FOID card
for 18- to 20-year-olds is consistent with our historic tradition of parental control over their
minor children. See Saul Cornell, “Infants” and Arms Bearing in the Era of the Second
Amendment: Making Sense of the Historical Record, 40 Yale L. & Pol’y Rev. Inter Alia 1
(2021). Those between the ages of 18 and 20 were considered “minors” or “infants” in the eyes
of the law from the time of the nation’s founding through the latter half of the twentieth century.
Id. at 2. Individuals under the age of majority, 21, were entirely subsumed under the authority of
their parents, usually the father, or legal guardian. Id. at 8. It was well understood that minors or
infants had few legal rights without parental approval. See id. at 10-11 (citing 1 Zephaniah Swift,
A System of the Laws of the State of Connecticut 213 (John Byrne ed., 1795) (“Persons within
the age of twenty-one, are, in the language of the law denominated infants, but in common
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speech, minors.”); 2 James Kent, Commentaries on American Law 191 (O. Halsted ed., 1827)
(“The necessity of guardians results from the inability of infants to take care of themselves; and
this inability continues, in contemplation of law, until the infant has attained the age of twenty-
one years.”); 1 John Bouvier, Institutes of American Law 148 (Robert E. Peterson ed., 1851)
(“The rule that a man attains his majority at the age twenty-one years accomplished, is perhaps
universal in the United States. At this period every man is in the full enjoyment of his civil and
political rights ***.”)).
¶ 37 Thus, many “militia statutes recognized that minors were not responsible for procuring
their own arms, so the statutes required parents or guardians to provide firearms to militia
members under the age of twenty-one who were in their care.” Id. at 15; see 1776 N.H. Laws
Sess. 4, ch. 3, § 6, reprinted in 4 Albert Stillman Batchellor, Laws of New Hampshire 39, 40
(Musgrove Printing House 1916) (“An Act for forming and regulating the Militia within the State
of New Hampshire in New England,” providing that “each and every Officer and private Soldier
of said Militia, not under the controul of Parents, Masters, or Guardians, And being of sufficient
Ability therefor, in the judgment of the Selectmen of the Town wherein he has his usual place of
Abode, shall equip himself, and be constantly provided with a good Fire Arm”); 3 Del. Laws § 7
(1785) (“An Act for establishing a Militia,” providing that “every apprentice, or other person of
the age of eighteen and under twenty-one years, who hath an estate of the value of eighty
pounds, or whose parent shall pay six pounds annually towards the public taxes, shall by his
parent or guardian respectively be provided with a musket or firelock”); 1792 N.H. Laws Sess. 2,
ch. 33, reprinted in 6 Albert Stillman Batchellor, Laws of New Hampshire 84, 89 (Evans Printing
Co. 1904) (“An Act for forming and regulating the Militia within this State, and for repealing all
====== Instruction ======
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the laws heretofore made for that purpose,” providing “that such of the infantry as are under the
care of parents, Masters or Guardians, shall be furnished by them with such Arms and
Accoutrements”); [CITATION] (“An act for regulating and
governing the militia of the Commonwealth of Massachusetts,” providing that “all Parents,
Masters and Guardians shall furnish those of the said Militia who shall be under their care and
command, with the Arms and Equipments aforementioned”); [CITATION] (“An Act, for Regulating and Governing the militia of This State,” providing that
“all parents, masters or guardians, shall furnish those of the said militia who shall be under their
care and command, with the arms and equipments above mentioned”); [CITATION] (“An Act to revise the Militia Laws of this State, relative to the Infantry,”
providing that “all parents, masters or guardians shall furnish those of the militia who shall be
under their care or command with their arms and equipments above mentioned”); [CITATION] (“An Act for regulating, governing, and training the Militia of this
Commonwealth,” providing that “all parents, masters or guardians, shall furnish all minors
enrolled in the militia, who shall be under their care respectively with the arms and equipments,
required by this act”); [CITATION] (“An Act for forming,
arranging and regulating the Militia,” providing that “all parents, masters and guardians shall
furnish all minors enrolled in the militia, who shall be under their care respectively with the arms
and equipments required by this act”); [CITATION] (“An Act to
organize, govern and discipline the Militia of this State,” providing that “all parents, masters or
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guardians, shall furnish all minors enrolled in the militia, who shall be under their care
respectively, with the arms, and equipments, required by this Act”); 1825 Mo. Laws 533 (ch. I,
§ 24) (“An act to organize, govern and discipline the Militia,” providing that “all parents, masters
and guardians, shall furnish all minors, enrolled in the militia, who shall be under their care,
respectively, with the arms and equipments required by this act”).
¶ 38 Moreover, the nation’s earliest colleges and universities, such as Yale College, the
University of Georgia, the University of North Carolina, and the University of Virginia, forbade
their students from possessing guns. Cornell, supra, at 13-14. In short, at the founding, “access
to, and the ability to keep or bear, weapons occurred in supervised situations where minors were
under the direction of those who enjoyed legal authority over them: fathers, guardians,
constables, justices of the peace, or militia officers.” Id. at 14. If a minor wished to get out from
under the control of a parent, he could find no relief in the courts because a minor in the
founding era had no legal standing to assert a claim to vindicate his rights, including second
amendment-type claims. Id. at 7. Therefore, today’s requirement that an 18- to 20-year-old
obtain parental consent for a FOID card aligns closely with our historic tradition that an 18- to
20-year-old obtain parental approval in almost every aspect of life.
¶ 39 Thompson’s reliance on [CITATION] is unavailing. In [CITATION], a group of 18- to
20-year-olds advanced a facial challenge to Minnesota’s Personal Protection Act of 2003 (Minn.
Stat. Ann. § 624.714(2)(b)(2) (West 2022)) that criminalizes carrying handguns in a public place
without a license. In order to obtain a license, Minnesota law requires the applicant to be at least
21 years old. [CITATION] The plaintiffs argued the law was unconstitutional under
the second and fourteenth amendments. Id. Applying the Bruen test, the Eighth Circuit Court of
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Appeals found the statute unconstitutional. The court first found that 18- to 20-year-olds are part
of the people with a right to keep and bear arms under the second amendment and, therefore, that
conduct is presumptively protected. [CITATION]. After analyzing the nation’s historical tradition of
firearm regulation, the court then went on to find that the government had not met its burden to
“proffer sufficient evidence to rebut the presumption that 18 to 20-year-olds seeking to carry
handguns in public for self-defense are protected by the right to keep and bear arms.” [CITATION] is distinguishable from the instant case in that it involved Minnesota’s categorical
ban on those under the age of 21 from carrying handguns in public. There is no such categorical
ban here. Rather, Thompson is subject to an age-based parental consent restriction. As we
discussed, 18- to 20- years olds did not enjoy unfettered second amendment protections at the
nation’s founding because they were entirely subjected to the authority and control of their
parents or guardians.
[SEGMENT 8]
¶ 41 We find that, because 18- to 20-year-olds were entirely subsumed under the control and
authority of their parents at the founding, an age-based parental consent restriction on a minor’s
access to firearms, such as the FOID Card Act’s requirement that they obtain their parent’s
consent to obtain a FOID card, cannot be said to violate the second amendment under [CITATION].
Accordingly, we reject Thompson’s facial challenge to the AUUW statute.
¶ 42 CONCLUSION
¶ 43 We conclude that Thompson’s facial challenge to section 24-1.6(a)(1), (a)(3)(c), of the
AUUW statute fails. First, [CITATION] expressly approved objective, shall-issue firearms licensing
regimes such as the one here. Thus, we need not engage in a fulsome second amendment
analysis. Second, even applying the second amendment analysis outlined in [CITATION], our supreme
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court has repeatedly rejected second amendment challenges to statutes that prohibit firearm
possession based on age. Further, historical precedents align with our present age-based parental
consent requirements for minors, who at the founding were considered to be those under the age
of 21. After all, parents know their children the best—a truism that has remained unchanged
since the nation’s founding—and are most suited to judge whether they are responsible and
mature enough to possess and use a firearm. See [CITATION] (“The parent or
guardian signature provision provides for an individualized assessment of the applicant’s fitness
for possession of a firearm by a person likely to be in the best position to make such an
evaluation.”). Therefore, we reject Thompson’s second amendment challenge to the AUUW
statute. The judgment of the circuit court is affirmed.
¶ 44 Affirmed.
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[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR-
; the Hon. Maria Kuriakos-Ciesel, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Manuela Hernandez, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Jessica R. Ball, and Whitney Bond, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
2024 IL App (1st) 231500-U
No. 1-23-1500
Order filed August 22, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 2618
)
TEVIN NELSON, ) Honorable
) John F. Lyke Jr.,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: We affirm the denial of defendant’s petition for relief from judgment where he has
not established that the subsection of the aggravated unlawful use of a weapon
statute under which he was convicted is facially unconstitutional.
¶2 Defendant Tevin Nelson appeals from the circuit court’s order denying his petition for
relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1401 (West 2020)). He argues that his conviction for aggravated unlawful use of a
weapon (AUUW) should be vacated because the subsection of the statute under which he was
convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020)) is facially unconstitutional under No. 1-23-1500
the second amendment to the United States Constitution (U.S. Const., amend. II). For the following
reasons, we affirm.
¶3 On August 22, 2022, defendant entered a negotiated guilty plea to one count of AUUW in
exchange for six years’ imprisonment and the nolle prosequi of other charges. He did not move to
withdraw his plea or file a direct appeal.
¶4 On February 8, 2023, defendant filed a petition for relief from judgment pursuant to section
2-1401 of the Code. He argued that the subsection of the AUUW statute under which he was
convicted was unconstitutional and his conviction should be vacated pursuant to [CITATION],
and its progeny. On May 8, 2023, the court denied defendant’s petition, noting
that the subsection of the AUUW statute under which he was convicted had not been found
unconstitutional.
¶5 On June 24, 2023, defendant mailed to this court a motion for leave to file a late notice of
appeal, which we allowed.
¶6 On appeal, defendant argues that, pursuant to the United States Supreme Court’s decision
in [CITATION], the subsection of the
AUUW statute under which he was convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020))
violates the second amendment.
¶7 Section 2-1401 of the Code provides a statutory procedure by which final judgments may
be vacated more than 30 days after entry. 735 ILCS 5/2-1401(a) (West 2022); [CITATION],
We review de novo a denial of a section 2-1401 petition on legal grounds.
[CITATION]. We also review de novo the constitutionality of a statute,
No. 1-23-1500
a question of law. [CITATION], ¶ 9 (citing [CITATION]).
¶8 Section 24-1.6(a)(1), (a)(3)(A-5) of the Criminal Code of 2012 provides:
“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode,
legal dwelling, or fixed place of business, or on the land or in the legal dwelling of
another person as an invitee with that person’s permission, any pistol, revolver, stun
gun or taser or other firearm; [and]
***
(3) One of the following factors is present:
***
(A-5) the pistol, revolver, or handgun possessed was uncased,
loaded, and immediately accessible at the time of the offense and the person
possessing the pistol, revolver, or handgun has not been issued a currently
valid license under the Firearm Concealed Carry Act[.]” 720 ILCS 5/24-
.6(a)(1), (a)(3)(A-5) (West 2020).
¶9 Defendant claims that section 24-1.6(a)(1), (a)(3)(A-5) violates the second amendment on
its face. Facial challenges are “the most difficult challenge to mount.” [CITATION], ¶ 25. Statutes are presumed constitutional, and to rebut that presumption and show a statute is
facially unconstitutional, a party must establish that there are no circumstances under which the
====== End of Document ====== No. 1-23-1500
statute would be valid. [CITATION]. “If it is reasonably possible to
construe the statute in a way that preserves its constitutionality, we must do so.” Id. A defendant
may challenge the constitutionality of a statute at any time. [CITATION], ¶ 8.
¶ 10 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” [CITATION], 554 U.S. 570, 635 (2008). In 2010, the Court issued its decision in [CITATION],
in which it extended the right to keep and bear arms to the states under the fourteenth amendment.
[CITATION], 561 U.S. 742 (2010). Following [CITATION] and [CITATION], courts
developed a two-step test for evaluating second amendment challenges to firearm regulations: the
court would consider whether the regulated activity fell outside the scope of the second amendment
as the amendment was originally understood and, if not, weigh the severity of the regulation
[SEGMENT 9]
against the ends the government sought to achieve in enacting it. See [CITATION], ¶ 11.
¶ 11 Then, in 2022, the Court issued [CITATION], in which it announced a new test for evaluating the
constitutionality of firearm regulations:
“When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of
No. 1-23-1500
firearm regulation. Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s unqualified command.” (Internal quotation marks
omitted.) [CITATION], 597 U.S. at 24.
¶ 12 In other words, the first question under [CITATION] is “Does the plain text of the second
amendment cover an individual’s conduct?” (Internal quotation marks omitted.) [CITATION], ¶ 52. If the answer is no, the regulation is constitutional. Id.
If the answer is yes, the conduct is presumptively protected, and the court must answer the second
question: “Is the State’s regulation consistent with the Nation’s historical tradition of firearm
regulation[?]” (Internal quotation marks omitted.) Id.
¶ 13 Defendant argues that section 24-1.6(a)(1), (a)(3)(A-5) governs the conduct of publicly
carrying a firearm, which is covered by the second amendment. He notes that a valid concealed
carry license (CCL) under the Firearm Concealed Carry Act (Carry Act) (430 ILCS 66/1 et seq.
(West 2020)) cannot be obtained unless a person, inter alia, is 21 years old, completes firearms
training, and has a valid Firearm Owner’s Identification (FOID) card under the Firearm Owners
Identification Card Act (FOID Card Act) (430 ILCS 65/1 et seq. (West 2020)). See 430 ILCS
66/25 (West Supp. 2021).
¶ 14 In turn, a person cannot obtain a FOID card if, inter alia, he or she has been convicted of
a felony, is addicted to narcotics, has been a patient in a mental health facility in the prior five
years, or has an intellectual disability. 430 ILCS 65/4(a)(2)(ii)-(v) (West Supp. 2021). Obtaining
each license requires payment of certain fees. 430 ILCS 65/5(a) (West Supp. 2021); 430 ILCS
66/10(a)(3) (West Supp. 2021). The government is allowed 30 days to approve or deny an
application for a FOID card, and 90 days for a CCL, which is only valid for 5 years. 430 ILCS
No. 1-23-1500
65/5(a) (West Supp. 2021); 430 ILCS 66/10(c), (e) (West Supp. 2021). According to defendant,
this scheme places “an onerous burden” on the right to carry a firearm and the State cannot prove
that a criminal penalty for failing to comply with the scheme has historical analogues.
¶ 15 The State initially responds that defendant lacks standing to challenge the Carry Act or the
FOID Card Act as there is no evidence that he applied for a FOID card or CCL. However, as the
State concedes, defendant was convicted under section 24-1.6(a)(1), (a)(3)(A-5) and he therefore
has standing to challenge that provision, which criminalizes noncompliance with the Carry Act.
See [CITATION] (defendant had standing to raise facial
challenge to statute under which he had been convicted as he was injured by the statute’s
enforcement); see also [CITATION] (defendant who
had been convicted of AUUW for failure to comply with FOID Card Act and Carry Act had
standing to challenge AUUW statute despite no evidence of attempt to procure FOID Card or
CCL). 1
¶ 16 Substantively, the State points out that the FOID Card Act and Carry Act are “shall issue”
licensing regimes. In other words, when an applicant meets the statutory criteria under those acts,
they “shall” be issued a license. (Emphasis in original.) [CITATION] ¶¶ 16,
22; see also 430 ILCS 65/5(a) (West Supp. 2021) (“every applicant found qualified” under the
FOID Card Act “shall be entitled to” a FOID card); 430 ILCS 66/10(a) (West Supp. 2021) (Illinois
State Police “shall issue” a CCL to applicants who satisfy statutory requirements).
Unpublished orders filed under Illinois Supreme Court Rule 23(b) after January 1, 2021, may be
cited for persuasive purposes. Ill. S. Ct. R. 23(b), (e)(1) (eff. Feb. 1, 2023).
No. 1-23-1500
¶ 17 In Bruen, the Supreme Court differentiated between such “shall issue” licensing regimes
and the “may issue” licensing regime that was then before the Court, in which a license to carry
firearms in public would only issue to those who showed that “proper cause” existed. (Internal
quotation marks omitted.) [CITATION]. The Court in Bruen recognized that
Illinois was a shall-issue jurisdiction, and stated that nothing in its decision “should be interpreted
to suggest the unconstitutionality” of any shall-issue licensing regime, as objective requirements
like undergoing a background check or passing a firearm safety course did not prevent law-abiding,
responsible citizens from exercising their second amendment right. Id.
¶ 18 According to the State, we therefore do not need to undergo the Bruen analysis to reject
defendant’s claim. Indeed, following Bruen, in [CITATION], a defendant who had been convicted of
AUUW for possessing a weapon without a CCL or FOID card argued that his conviction was void
as the Carry Act and FOID Card Act were unconstitutional under Bruen. [CITATION]. We disagreed, on the basis that the acts were shall-issue regimes condoned by Bruen
as the background check and training requirements did not prevent law-abiding, responsible
citizens from exercising their second amendment right. Id. ¶¶ 19, 29, 32 (citing [CITATION]). See also [CITATION] (rejecting challenge to
section 24-1.6(a)(1), (a)(3)(A-5) on same basis); [CITATION] (same).
¶ 19 Defendant argues that Bruen’s endorsement of shall-issue licensing schemes comes only
from footnotes, is dicta, and references only the civil framework for obtaining a CCL and not the
criminalization of possessing a firearm in public without one. However, even disregarding Bruen’s
No. 1-23-1500
discussion of licensing schemes, defendant’s claim that section 24-1.6(a)(1), (a)(3)(A-5) is
unconstitutional under the test set forth in Bruen still fails.
¶ 20 We recently resolved this question in [CITATION] where, as here, the defendant argued that
section 24-1.6(a)(1), (a)(3)(A-5) was unconstitutional under Bruen. [CITATION]. We noted that Bruen limited the scope of the second amendment to law-abiding
citizens. Id. [CITATION] (citing Bruen, [CITATION]); see also [CITATION] (noting that justices in Bruen majority repeated phrase “law-abiding” 18 times
between their majority opinion and concurrences). As the Carry Act prohibited possession of a
concealed firearm outside the home without a CCL, anyone who did so was violating civil law.
[CITATION]. Section 24-1.6(a)(1), (a)(3)(A-5) merely criminalized
what was already non-law-abiding conduct. Id. Bruen and the second amendment therefore did not
apply to the conduct at issue and the defendant’s argument failed at Bruen’s first step. Id.
¶ 21 Defendant argues we should undertake a historical analysis under Bruen’s second step,
unlike the courts in [CITATION] and [CITATION]. Even were we to do so, defendant’s argument would
nevertheless fail.
¶ 22 Another district of this court has already found that the concealed carry provision of section
24-1.6(a) is constitutional under the second step of the Bruen test. [CITATION]. In [CITATION], the court
found that the State provided historical examples regulating the manner in which persons could
carry firearms in public that were relevantly similar to Illinois’s concealed-carry statutory scheme.
Id. [CITATION]. For example, courts had explained “ ‘[f]rom Blackstone through the 19th-century
cases’ ” that the right to keep and bear arms was not a right to carry any weapon in any manner.
No. 1-23-1500
Id. ¶ 28 (quoting [CITATION]). Rather, 19th-century prohibitions on carrying concealed
weapons were found lawful under the second amendment or “ ‘state analogues.’ ” Id. ¶ 29 (quoting
[SEGMENT 10]
[CITATION]). The public carry of firearms was commonly regulated in the colonies and
early Republic to prevent fear and terror, and in the 1800s “to reduce violence and protect the
public.” Id. ¶ 32. As section 24-1.6(a) likewise regulated the manner in which a person could
publicly carry a firearm and was not a total ban on the public carrying of firearms, it was therefore
constitutional under [CITATION], Id. ¶¶ 33-34.
¶ 23 In sum, our courts have consistently rejected the argument that section 24-1.6(a)(1),
(a)(3)(A-5) is facially unconstitutional under [CITATION]. See [CITATION].
Defendant provides no persuasive reason to depart from the reasoning in these cases.
¶ 24 Moreover, even if we found some fault with the analysis contained in these prior decisions,
we would be compelled to reject defendant’s facial challenge to section 24-1.6(a)(1), (a)(3)(A-5)
due to the recent decision in [CITATION]. In that case, the Court rejected a facial challenge to a federal statute—18 U.S.C. § 922(g)(8)(C)(i)
(2020)—that prohibits an individual subject to a domestic violence restraining order from
possessing a firearm if that order includes a finding that the person represents a credible threat to
the physical safety of an intimate partner, or a child of the partner or individual. Id. at 1898. The
Court conducted the very analysis called for in its prior [CITATION] decision and stated that “we have
no trouble concluding that Section 922(g)(8) survives [CITATION]’s facial challenge. Our tradition of
firearm regulation allows the Government to disarm individuals who present a credible threat to
the physical safety of others.” Id. 602 U.S. __, 144 S. Ct. at 1901.
No. 1-23-1500
¶ 25 Obviously, the specific federal statute at issue in Rahimi is not directly at issue in this
appeal. However, here defendant has raised a facial challenge to section 24-1.6(a)(1), (a)(3)(A-5),
and as such he must show that the statute is unconstitutional under any set of facts and the specific
facts related to defendant are irrelevant. [CITATION]. And, as
discussed above, section 24-1.6(a)(1), (a)(3)(A-5) makes it a felony to possess a firearm without
having been issued a currently valid CCL. 720 ILCS 5/1.6(a)(1), (a)(3)(A-5) (West Supp. 2021).
Furthermore, a valid CCL cannot be obtained unless a person, inter alia, has a valid FOID card
(430 ILCS 65/1 et seq. (West 2020)). See 430 ILCS 66/25 (West Supp. 2021). In turn, a person
cannot obtain a FOID card if, inter alia, he or she “is prohibited from acquiring or possessing
firearms or firearm ammunition by any Illinois State statute or by federal law.” (Emphasis added.)
430 ILCS 65/8(n) (West 2020). A person subject to Section 922(g)(8) of the federal code is just
such a person.
¶ 26 Thus, because there is at least one instance where it would be constitutional under the
second amendment and the Bruen analysis to deny a FOID card and therefore also deny a CCL to
an applicant, and because possessing a firearm without a CCL in that instance would violate section
24-1.6(a)(1), (a)(3)(A-5), we must reject defendant’s facial challenge to that statute. [CITATION]
(“so long as there exists a situation in which a statute could be validly
applied, a facial challenge must fail.”).
¶ 27 For these reasons, we affirm the circuit court’s denial of defendant’s petition for relief filed
under section 2-1401 of the Code.
¶ 28 Affirmed.
- 10 -
2024 IL App (1st) 230524-U
Order filed: August 15, 2024
FIRST DISTRICT
FOURTH DIVISION
No. 1-23-0524
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 9485
)
TERRY MOFREH, ) Honorable
) Arthur Wesley Willis,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for aggravated unlawful use of a weapon is affirmed, where
defendant was not prejudiced by any evidence admitted at trial or any improper
closing argument, and the statute under which he was convicted was not facially
unconstitutional.
¶2 Defendant-appellant, Terry Mofreh, appeals from his conviction for aggravated unlawful
use of a weapon. For the following reasons, we affirm.
¶3 In July 2021, defendant was charged by indictment with two counts—counts 1 and 2—of
aggravated unlawful use of a weapon (“AUUW”) and one count—count 3—of unlawful use or
possession of a weapon by a felon (“UUWF”), with the offenses alleged to have occurred on or
about June 5, 2021. Count 1 alleged that defendant was in possession of a weapon while not having No. 1-23-0524
been issued a valid concealed carry license, while count 2 alleged that defendant was in possession
of a weapon while not having been issued a valid firearm owner’s identification (“FOID”) card.
All three of the counts alleged that defendant had been previously convicted of aggravated battery.
¶4 Prior to trial, defendant filed a motion in limine. As relevant to this appeal, the motion first
sought to “bar any witness from testifying regarding [ShotSpotter] or [ShotSpotter] technology.”
At a hearing on that motion, defense counsel asserted that with respect to the introduction of any
ShotSpotter evidence, “I would ask that the officers be prohibited from any testimony regarding
ShotSpotter or the fact that ShotSpotter went off that evening and that was the reason that they
went to that location. It would be unfairly prejudicial if the jury were to hear that because they may
wrongly assume that Mr. Mofreh had fired a weapon or used a weapon. There is no allegation of
that contained in either the charging documents here or anything that we’ve been tendered in
discovery.”
¶5 The State responded: “We weren’t going to argue that the defendant was the one that fired
the gun, the defendant was the one that didn’t fire the gun, somebody else fired the gun, anything
about it but just that they were responding to a ShotSpotter call.” The State further noted that
“before the officers got there, they traveled six blocks, wrong way, on a one-way street and that’s
why they were doing that, to get to that address for that more serious call. So it kind of explains
the officers’ actions, the course of conduct they took.” The trial court denied this motion in limine,
concluding that such evidence was being introduced to show the police officers’ course of conduct
and was “not coming in for the truth of the matter asserted.”
¶6 Defendant’s motion in limine also sought to “prohibit the State from arguing that
investigatory actions that could have been taken by police officers or other state actors would have
No. 1-23-0524
been a waste of taxpayer or state dollars as a justification for why certain investigatory actions
were not taken in the present case.” The trial court granted this motion without further argument.
¶7 The matter proceeded to a jury trial. Notably, during opening statements the State only
briefly mentioned that before encountering defendant on June 25, 2021, a “team of Chicago police
officers were responding to a call of ShotSpotter.” While defense counsel’s opening statement did
not discuss any potential ShotSpotter evidence at all, it did specifically discuss the fact that after
the police recovered a firearm, “one of the officers who was there that evening, one Officer
Ainalakis picked up that firearm in direct violation of Chicago Police Department procedures
because when he picked that gun up, he didn’t first put on a pair of gloves to preserve potentially
critical fingerprint evidence.” Defense counsel also stressed that:
“The gun, the magazine and the bullets were all sent off to the forensic services
division within the Chicago Police Department. We’re going to hear that this is the unit
where objects can be scientifically analyzed for fingerprints that aren’t immediately
obvious to the naked eye. This is the unit where biological DNA swabs can be taken and
sent off to the Illinois State Police. But for whatever reason once these objects made their
[SEGMENT 11]
way to the forensic services division, neither the firearm nor the magazine nor the bullets
inside were ever subjected to any testing that we will hear about during this trial.”
¶8 At trial, the State first presented testimony from Officer Evagelos Ainalakis. He testified
that on the night of June 25, 2021, he was part of a tactical team that included Officers Ryan Ritchie
and Anathea Smith. Just before 10 p.m., the team was directed to 10429 South Forest Avenue in
Chicago, Illinois, due to a ShotSpotter alert which notifies police when shots are being fired. The
team travelled in an unmarked vehicle northbound, down the wrong way of a one-way street to
reach the location of the alert as quickly as possible. Upon arrival, Officer Ainalakis observed
No. 1-23-0524
defendant running towards the team through the front yards from 10437 to 10441 South Forest
Avenue. The night was clear, and the street was lit with artificial lighting. Defendant, who was the
only person out on the streets, looked in the officer’s direction and ran toward a fence at 10441
South Forest Avenue holding a pink and black gun in his right hand, which was an unusual color
for a firearm. Defendant then threw the firearm over the fence.
¶9 Officer Ainalakis exited the vehicle to detain defendant. While defendant initially paused
in one of the front yards, he soon quickly and briefly ran away into the street. Defendant was then
detained and placed in custody. Officer Ainalakis then walked to the fence, opened it and retrieved
a pink and black firearm lying on the ground. The firearm was loaded with ammunition. At the
time he recovered the firearm, Officer Ainalakis could hear that other people were beginning to
congregate at the scene.
¶ 10 Defendant was then placed under arrest. A video of Officer Ainalakis’ body camera
footage, without audio, was published to the jury, While the video did not show defendant holding
or throwing the firearm because the officer was still in the vehicle at the time, the video otherwise
matched the officer’s testimony. In addition, while neither Officer Ritchie nor Smith observed
defendant in possession of or throwing a firearm, their testimony also otherwise generally
corroborated that of Officer Ainalakis, as did a video of Officer Ritchie’s body camera footage
shown to the jury.
¶ 11 Of note, Officer Ainalakis identified the pink and black firearm in open court but also
testified that he did not wear gloves when he retrieved the firearm because he did not have a pair
of gloves immediately at hand. While on cross-examination he acknowledged that the use of gloves
was called for by official police department policy, on redirect examination he explained that there
was an exception to that requirement where “exigent circumstances” existed. Officer Ainalakis
No. 1-23-0524
testified that the presence of additional people near an unrecovered firearm constituted an exigent
circumstance, and Officer Ritchie corroborated this testimony. Officer Ainalakis further testified
that the ShotSpotter alert of shots fired also constituted an exigent circumstance. And, when
confronted by defense counsel with the fact that the recovered firearm was not ultimately subjected
to any forensic testing, including fingerprint or DNA testing, both Officers Ainalakis and Ritchie
testified that neither fingerprint nor DNA testing would have typically been performed in this case,
as it was a firearm possession case that did not involve a shooting or other violent crime.
¶ 12 Additionally, during their testimony each of the officers was asked about the ShotSpotter
alert. Each generally testified that such an alert was an automated system that indicated a report
that gunshots had been fired in a particular area. In addition, however, some of the language in the
State’s questioning and in the officers’ testimony went further, indicating either implicitly or
explicitly that a ShotSpotter alert indicated that gunshots had in fact been fired in a particular
location. At trial, defense counsel objected to some, but not all, of this testimony.
¶ 13 The parties then stipulated that defendant did not have a valid concealed carry license or
FOID card at the time of his arrest, and had a prior felony conviction.
¶ 14 During its closing argument, the State only briefly mentioned the ShotSpotter evidence and
did not discuss the evidence of exigent circumstances at all. It was defense counsel that raised the
issue of the failure to use gloves to retrieve the firearm and the lack of any exigent circumstances
to justify this failure, as well as the fact that no forensic testing was completed. In rebuttal
argument, the State responded that Officer Ainalakis and his fellow officers were responding to a
ShotSpotter alert, which helps officers to “make it on time so that people don’t get killed,” and
which signals that a shooting has occurred, which by its nature is an “exigent circumstance.” The
State also argued: “They would have you believe that every piece of evidence, every gun, every
No. 1-23-0524
piece of evidence that's recovered from the streets of Chicago is somehow—must have DNA on
it, it must have fingerprints on it. Imagine the manpower it would take.” Defense made an
objection, and the trial court immediately sustained it. Thereafter, the jury was instructed—inter
alia—that closing arguments were not evidence.
¶ 15 At the conclusion of trial, the State moved to dismiss count 1 by nolle prosequi and the
jury proceeded to deliberate solely on the remaining counts 2 and 3. The jury found defendant
guilty of both remaining counts.
¶ 16 Defendant filed a motion for a new trial, which was subsequently amended. As amended
and as relevant to this appeal, in the motion defendant contended that: (1) even though his objection
to the State’s closing argument regarding the “Imagine the manpower” comment was sustained,
“this was said in the presence of the jury and the jury still was able to hear this argument. This
violation of the motion in limine served to taint the jury, prejudicing Mr. Mofreh,” and (2)
“ShotSpotter evidence was improperly admitted in this case” and improperly argued as substantive
evidence during the State’s closing argument. The State responded that, with respect to the first
argument, the comment did not actually violate the motion in limine, it was made in response to
defendant’s own arguments regarding the lack of forensic testing and, in any case, defendant was
not prejudiced where his objection was sustained. As to the ShotSpotter evidence and arguments
related thereto, the State contended that such evidence and argument were only used at trial for
course-of-conduct purposes. The trial court denied defendant’s motion for a new trial.
¶ 17 Defendant was then sentenced to three years in prison for his conviction for AUUW on
count 2, with his conviction on count 3 merging into that conviction. Defendant timely appealed.
¶ 18 We first consider defendant’s assertion that his conviction should be reversed because he
was prejudiced by the improper admission of irrelevant hearsay evidence regarding ShotSpotter.
No. 1-23-0524
¶ 19 Relevant evidence is “evidence having any tendency to make the existence of a fact that is
of consequence to the determination of the action more or less probable than it would be without
the evidence.” [CITATION]. Hearsay is defined as testimony
of an out-of-court statement offered to establish the truth of the matter asserted therein. [CITATION]. A statement offered for a reason other than for the truth
of the matter asserted is generally admissible because it is not hearsay. [CITATION]. For example, evidence
offered to prove its effect on the listener’s state of mind, or to show why the listener acted the way
he did, is not hearsay. [CITATION]. Furthermore, evidence regarding a police investigation is relevant and
admissible. [CITATION] (“a police officer may recount the steps
taken in the investigation of a crime, and may describe the events leading up to the defendant’s
arrest, where such testimony is necessary and important to fully explain the State’s case to the trier
of fact”). We apply an abuse-of-discretion standard when reviewing the trial court’s decision
regarding the admission of hearsay. [CITATION], ¶ 20.
¶ 20 Before continuing further, we note that the parties dispute whether and to what extent
defendant fully preserved his objections to the admission of the ShotSpotter evidence. Defendant
asserts in the alternative that this issue was either fully or partially preserved, or that the admission
of this evidence should be reviewed for plain error or for ineffective assistance of counsel.
Regardless of the lens through which we analyze this issue, we find no reason to disturb
defendant’s conviction based on the admission of the ShotSpotter evidence.
¶ 21 Specifically, even if fully preserved we note that to the extent that the officers generally
testified that they responded to the scene due to a ShotSpotter alert, without further elaboration,
this was proper course-of-conduct evidence explaining the course of the investigation. Even
defendant concedes as much on appeal.
No. 1-23-0524
¶ 22 Furthermore, to the extent that that the officers testified that they responded to a
ShotSpotter alert, which merely indicated a report of shots being fired, we also find that such
evidence was entirely proper. Again, such evidence was not introduced for the truth of the matter
asserted—that shots were actually fired—but to explain why the officers responded to the scene
and why they drove the wrong way on a one-way street to get there. It was also properly admitted
[SEGMENT 12]
as rebuttal evidence, which is evidence “adduced by the prosecution to explain, repel, contradict,
or disprove evidence presented by the accused.” [CITATION]. At trial, defense counsel elicited evidence that the firearm was recovered without the use of gloves,
in potential violation of official policy. Evidence that there was a report of shots being fired was
properly admitted to establish that Officer Ainalakis believed that “exigent circumstances” existed
which justified his failure to use gloves to retrieve the firearm, thus rebutting this evidence.
¶ 23 However, defendant is certainly correct that at times both the State’s questioning at trial
and the answers provided by the State’s witnesses went beyond these limitations and may well
have constituted improper hearsay evidence that the ShotSpotter alert indicated the truth of the
matter asserted—that shots had actually been fired. However, to the extent that that this issue was
fully preserved, any error may be considered harmless if it appears beyond a reasonable doubt that
the error did not contribute to the verdict. [CITATION]. In
considering whether the error contributed to the verdict, we may consider whether the other
evidence overwhelmingly supported the conviction. Id.; [CITATION] (error is harmless where other evidence in the case overwhelmingly supports the
conviction).
¶ 24 At trial, Officer Ainalakis provided clear, unrebutted testimony that he observed defendant
in possession of a distinctive pink and black firearm and then throw that firearm over a fence. No
No. 1-23-0524
other person was in the vicinity at that time. The positive testimony of a single credible witness is
sufficient to sustain a conviction. [CITATION] This evidence was then
corroborated by video evidence. While the body camera evidence did not show defendant in
possession of the firearm, it does show Officer Ainalakis initially confront defendant after exiting
the squad car and then go immediately to the exact location of the firearm behind the fence and
retrieve it. In addition, both Officer Ainalakis’ testimony and the video evidence established that
when he was initially confronted by the police, defendant briefly attempted to flee. It is well
established that flight, when considered with all the other evidence, is a circumstance that a
factfinder may consider as tending to prove guilt. [CITATION]
We also note that Officer Ainalakis’ testimony regarding the events of the evening was also
generally corroborated by the testimony of Officers Ritchie and Smith. Lastly, the parties
stipulated that defendant did not have a valid FOID card at the time and had a prior felony
conviction.
¶ 25 Furthermore, any possible prejudice in the introduction of the ShotSpotter evidence for the
truth of the matter asserted did nothing to discount this evidence. At most, such evidence
improperly supported the State’s assertion that exigent circumstance existed to justify the failure
to use gloves in retrieving the firearm. However, Officers Ainalakis and Ritchie both provided
unrebutted, unchallenged testimony that the gathering crowd constituted a safety concern and as
such was also an exigent circumstance. “In deciding whether an error is harmless, a reviewing
court may ‘determine whether the improperly admitted evidence is merely cumulative or
duplicates properly admitted evidence.’ ” [CITATION]
And in any case, Officers Ainalakis and
Ritchie also both provided unrebutted, unchallenged testimony that neither fingerprint nor DNA
No. 1-23-0524
testing would have typically been performed in this case under any circumstances, as it was a
firearm possession case that did not involve a shooting or other violent crime.
¶ 26 For all these reasons, we conclude that even if this issue was fully preserved any error in
the admission of improper ShotSpotter evidence was harmless. [CITATION].
Considering this finding, we also conclude that any error in the admission of this evidence also did
not constitute plain error or ineffective assistance of counsel.
¶ 27 If reviewed for plain error, we note that the plain error doctrine “bypasses normal forfeiture
principles and allows a reviewing court to consider unpreserved error.” [CITATION]. The plain-error doctrine is applied where “(1) a clear or obvious error occurred
and the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
occurred and that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.” [CITATION]. In either circumstance, the burden of persuasion remains
with the defendant. [CITATION].
¶ 28 With respect to the first prong, if an error is “harmless, it most certainly cannot rise to the
level of plain error.” [CITATION]. While defendant also asserts second-
prong plain error on appeal, the “second prong of the plain error rule can be invoked ‘only in those
exceptional circumstances where, despite the absence of objection, application of the rule is
necessary to preserve the integrity and reputation of the judicial process.’ ” [CITATION]. We find that
defendant cannot establish second-prong plain error, because any admission of improper
ShotSpotter evidence was merely an error in the trial process itself, and not an error affecting the
- 10 - No. 1-23-0524
framework within which the trial proceeded. [CITATION]
“resulted merely in the introduction of improper evidence”).
¶ 29 To assert a claim of ineffective assistance of counsel, a defendant must establish that (1)
“counsel’s representation fell below an objective standard of reasonableness” and (2) “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” [CITATION]. A defendant
must satisfy both prongs of the Strickland test, and the failure to satisfy either of these prongs
precludes a finding of ineffectiveness.” [CITATION].
¶ 30 In this case, we can dispose of defendant’s assertion of ineffective assistance of counsel on
the prejudice prong alone. We have already concluded that any introduction of ShotSpotter
evidence was harmless, and therefore any failure by defense counsel to object to this evidence or
otherwise preserve the matter for appeal cannot have prejudiced defendant. See [CITATION]
¶ 31 Next, defendant contends the State made various improper remarks during closing
arguments. Prosecutors have great latitude in making their closing arguments, and such arguments
are proper if they are based on the record or are reasonable inferences drawn therefrom. [CITATION]. The entire record, particularly the full argument of both
sides, must be considered to assess the propriety of prosecutorial argument. [CITATION]. Prosecutorial comments constitute reversible error only if they
engender “substantial prejudice.” [CITATION]. Substantial
prejudice occurs when “the improper remarks constituted a material factor in a defendant’s
conviction.” Id.
- 11 - No. 1-23-0524
¶ 32 This court has acknowledged confusion regarding the applicable standard of review, in
light of “an apparent conflict” in supreme court precedent. [CITATION], ¶¶ 78-9. In 2000, our supreme court stated that the trial court’s determination of the
propriety of remarks during closing argument “will not be disturbed absent a clear abuse of
discretion.” [CITATION]. However, in 2007, our supreme court
subsequently stated that “[w]hether statements made by a prosecutor at closing argument were so
egregious that they warrant a new trial is a legal issue this court reviews de novo.” [CITATION]
.
¶ 33 We need not decide whether [CITATION] or [CITATION] defined the precise standard of review. This
is because under either standard, we find that the remarks challenged in this appeal did not
constitute reversible error. See [CITATION], ¶ 40 (“In this case, we
would reach the same result under any standard of review.”).
¶ 34 We first consider defendant’s argument that he was prejudiced by the State’s violation of
the motion in limine in making the “Imagine the manpower” comment regarding the lack of
forensic testing. Defendant preserved this issue for appeal by objecting at trial and including the
issue in his posttrial motion.
¶ 35 However, even if this argument was made in error, it constituted only a brief and isolated
comment in the context of the State’s overall closing argument. See [CITATION], ¶ 87 (noting that the brief and isolated nature of remarks in context is a factor in assessing
the effect on the jury verdict). Moreover, the trial court cured any error by immediately sustaining
defense counsel’s objection to this comment and instructing the jury that closing arguments were
not evidence. [CITATION]. On this record, and considering
- 12 - No. 1-23-0524
the evidence presented at trial, we find that defendant cannot be said to have been substantially
prejudiced as this remark did not constitute a material factor in his conviction.
¶ 36 Defendant also complains that he was prejudiced when the State improperly argued that
the ShotSpotter evidence showed that shots had actually been fired. He specifically contends that
these arguments served no purpose but to inflame the passions of the jury.
¶ 37 “Closing argument must serve a purpose beyond inflaming the emotions of the jury.”
[CITATION]; see also [CITATION] (“[I]t is improper
for the prosecutor to make statements the only effect of which is to inflame the passions or develop
[SEGMENT 13]
the prejudices of the jury without throwing any light upon the issues.”). However, inflaming of the
jury’s passions is not directly barred; rather, any commentary that does so must also serve a
different, proper purpose. [CITATION] (“[A]rgument that serves no purpose but to
inflame the jury constitutes error.”).
¶ 38 Here, the State’s closing argument regarding the ShotSpotter evidence was not introduced
solely to inflame the passions of the jury, but rather to respond to defense counsel’s argument
regarding the lack of any reason not to use gloves to retrieve the firearm. Statements are not
improper if they were provoked or invited by defense counsel’s argument. [CITATION]
¶ 39 Moreover, even if there was some error with respect to the State’s closing argument
regarding the ShotSpotter evidence, defendant concedes that he did not preserve this issue for
appeal and thus asks this court to review the issue for first-prong plain error. However, as discussed
above, we find that the evidence of defendant’s guilt was not closely balanced, but rather was
overwhelming. Thus, review of this issue for first-prong plain error is unavailing.
- 13 - No. 1-23-0524
¶ 40 Defendant’s final contention with respect to the State’s closing argument is that the State
misstated the evidence when it argued that when Officer Ainalakis confronted defendant he “takes
off running because he is guilty.” We reject this argument because—however brief it may have
been—both Officer Ainalakis’ testimony and the video evidence established that defendant did in
fact attempt to flee from police when he was confronted. “Arguments and statements that are based
upon the facts in evidence, or upon reasonable inferences drawn there from, are within the scope
of closing argument.” [CITATION] We also note that, again,
defendant concedes that this issue was not properly preserved. For the same reasons as above,
defendant’s request for first-prong plain error is unavailing.
¶ 41 Finally, we address defendant’s argument that the specific section of the AUUW statute
under which he was convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2020)) is facially
unconstitutional, as it violates his right to bear arms under the second amendment to the United
States Constitution. U.S. Const., amend. II.
¶ 42 We review a constitutional challenge to a statute de novo because it presents a question of
law. [CITATION] Legislative enactments have a strong presumption
of constitutionality, and this court must uphold the constitutionality of a statute when reasonably
possible. Id. A defendant challenging the constitutionality of a statute bears the burden to prove
the statutes’ invalidity. Id.
¶ 43 Here, defendant raises a facial challenge to section 24-1.6(a)(1), (a)(3)(C) of the AUUW
statute, which is the most difficult type of constitutional challenge. An enactment is invalid on its
face only if no set of circumstances exists under which it would be valid. [CITATION] A facial challenge requires a showing that the statute is
unconstitutional under any set of facts; the specific facts related to the challenging party are
- 14 - No. 1-23-0524
irrelevant. [CITATION]. “If it is reasonably possible to construe
the statute in a way that preserves its constitutionality, we must do so.” [CITATION]. A defendant may challenge the facial constitutionality of a statute at any time,
even—as defendant does so here—for the first time on appeal. [CITATION].
¶ 44 The second amendment to the United States Constitution provides: “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const., amend. II. In 2008, the United States Supreme Court
issued its decision in [CITATION], in which it found
that that the second amendment elevated “the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.” In 2010, the Court extended the right to keep and bear arms to the
states under the fourteenth amendment. [CITATION]. “Like
most rights, [however,] the right secured by the Second Amendment is not unlimited.” [CITATION]. The issue here is whether section 24-1.6(a)(1), (a)(3)(C) of the AUUW
statute under which defendant was convicted improperly infringes on this right because it is
facially unconstitutional. For the following reasons, we conclude that it does not.
¶ 45 In Illinois. the Firearm Owner’s Identification Card Act requires that a person wishing to
acquire or possess a firearm first obtain a FOID card from the Illinois State Police. 430 ILCS
65/2(a) (West 2020). In turn, the AUUW statute, in relevant part, provides that
“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode,
- 15 -
====== End of Part ====== No. 1-23-0524
legal dwelling, or fixed place of business, or on the land or in the legal dwelling of
another person as an invitee with that person’s permission, any pistol, revolver, stun
gun or taser or other firearm; [and]
***
(3) One of the following factors is present:
***
(C) the person possessing the firearm has not been issued a currently
valid Firearm Owner’s Identification Card.
***
(d) Sentence
***
(3) Aggravated unlawful use of a weapon by a person who has been
previously convicted of a felony in this State or another jurisdiction is a Class 2
felony for which the person shall be sentenced to a term of imprisonment of not
less than 3 years and not more than 7 years.” 720 ILCS 5/24-1.6(a), (d) (West 2020).
¶ 46 This specific section of the AUUW statute has previously been subject to facial
constitutional challenges under the second amendment, and it has routinely been found
constitutional. See [CITATION]. However, in New York
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), the Supreme Court of the United States
announced a new test for assessing the constitutional validity of laws seeking to regulate conduct
protected by the second amendment.
- 16 - No. 1-23-0524
¶ 47 Therein, the Court explained that “when the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that conduct.” [CITATION]
To justify regulation of that protected conduct, “the government must demonstrate that the
regulation is consistent with this Nation’s historical tradition of firearm regulation.” [CITATION]
Thus, “[o]nly if a firearm regulation is consistent with this Nation’s historical tradition
may a court conclude that the individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’ ” [CITATION] (quoting [CITATION])
As the Third District has explained,
“[t]his text-and-history standard is a two-part inquiry. The first inquiry is: Does the plain
text of the second amendment cover an individual’s conduct? [CITATION] If not, the
regulation is constitutional because it falls outside the scope of protection. But if it does,
the individual’s conduct is presumptively protected by the second amendment, and we
move to the second inquiry: Is the State’s regulation ‘consistent with the Nation’s historical
tradition of firearm regulation[?]’ [CITATION]
¶ 48 While on appeal, defendant contends that section 24-1.6(a)(1), (a)(3)(C) of the AUUW
statute fails this new test, we note that the same argument has been presented and rejected several
times by Illinois courts. See [CITATION]. And, although
defendant provides various arguments as to why we should not follow this clear precedent, we
decline defendant’s request to revisit these decisions.
¶ 49 Moreover, even if we accepted defendant’s arguments and found some fault with the
analysis contained in these prior decisions, we would be compelled to reject defendant’s facial
- 17 - No. 1-23-0524
challenge to section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute due to the recent decision in
[CITATION]. In that case, the Court rejected
a facial challenge to a federal statute—18 U.S.C. § 922(g)(8)(C)(i) (2020)—that prohibits an
individual subject to a domestic violence restraining order from possessing a firearm if that order
includes a finding that the person represents a credible threat to the physical safety of an intimate
partner, or a child of the partner or individual. Id. at 1898. The Court conducted the very analysis
called for in its prior [CITATION] decision and stated that “we have no trouble concluding that Section
922(g)(8) survives [CITATION]’s facial challenge. Our tradition of firearm regulation allows the
[SEGMENT 14]
Government to disarm individuals who present a credible threat to the physical safety of others.”
Id. [CITATION].
¶ 50 Obviously, the specific federal statute at issue in [CITATION] is not directly at issue in this
appeal. However, here defendant has raised a facial challenge to section 24-1.6(a)(1), (a)(3)(C) of
the AUUW statute, and as such he must show that the statute is unconstitutional under any set of
facts and the specific facts related to defendant are irrelevant. [CITATION]. And, as
discussed above, section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute makes it a felony to possess
a firearm without having been issued a currently valid FOID card. 720 ILCS 5/24-1.6(a) (West
2020). Notably, Illinois law specifically provides that: “The Illinois State Police has authority to
deny an application for or to revoke and seize a Firearm Owner’s Identification Card previously
issued under this Act only if the Illinois State Police finds that the applicant or the person to whom
such card was issued is or was at the time of issuance *** [a] person who is prohibited from
acquiring or possessing firearms or firearm ammunition by any Illinois State statute or by federal
law.” (Emphasis added.) 430 ILCS 65/8(n) (West 2020). A person subject to Section 922(g)(8) of
the federal code is just such a person.
- 18 - No. 1-23-0524
¶ 51 Thus, because there is at least one instance where it would be constitutional under the
second amendment and the Bruen analysis to deny a FOID card to an applicant, and because
possessing a firearm without a FOID card in that instance would violate section 24-1.6(a)(1),
(a)(3)(C) of the AUUW statute, we must reject defendant’s facial challenge to that statute. [CITATION]
(“so long as there exists a situation in which a statute could be validly applied, a facial challenge must fail.”).
¶ 52 For the foregoing reasons, we affirm the judgement of the circuit court.
¶ 53 Affirmed.
- 19 - Certainly! Here is the text with the necessary replacements:
==== Part of a Court Ruling ====
2024 IL App (1st) 231051-U
No. 1-23-1051
Order filed August 12, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 17 CR 1246
)
ARTEZ McNEAL, ) Honorable
) Ursula Walowski,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of defendant’s postconviction petition is affirmed
where defendant has abandoned the claim of ineffective assistance of counsel which
was raised in his petition and his claim on appeal that the armed habitual criminal
statute is facially unconstitutional under the second amendment is without merit.
¶2 Defendant Artez McNeal appeals from an order of the circuit court of Cook County
granting the State’s motion to dismiss his petition for relief filed under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). On appeal, defendant has abandoned No. 1-23-1051
the claim of ineffective assistance of counsel which was raised in his postconviction petition and,
instead, solely contends that the armed habitual criminal statute under which he was convicted
(720 ILCS 5/24-1.7 (West 2016)) is facially unconstitutional under the second amendment of the
United States Constitution (U.S. Const., amend. II). For the following reasons, we affirm.
¶3 Following a 2017 jury trial, defendant was convicted of being an armed habitual criminal
(AHC) and sentenced to a term of 10 years’ imprisonment. The two predicate felony convictions
underlying the AHC conviction were defendant’s 2009 conviction for aggravated vehicular
hijacking and his 2013 conviction for manufacture or delivery of a controlled substance. On direct
appeal, this court affirmed defendant’s conviction. [CITATION].
¶4 On December 7, 2020, defendant filed a pro se postconviction petition under the Act
raising a single claim of ineffective assistance of trial counsel for failing to investigate and call a
particular witness at trial who may have provided exonerating testimony. Defendant attached to
his petition an affidavit from that witness averring that she never gave a written or verbal statement
against defendant and that counsel never contacted her to confirm or deny if she made a statement.
The circuit court appointed counsel to represent defendant and advanced his petition to the second
stage of proceedings under the Act.
¶5 On March 16, 2023, the State moved to dismiss defendant’s postconviction petition arguing
that counsel’s decision regarding which witnesses to call at trial was a matter of trial strategy that
was entitled to deference and generally immune from claims of ineffective assistance. The State
pointed out that there was no evidence that the proposed witness ever provided a statement against
defendant, and no written or verbal statement from her had been introduced at trial. Consequently,
No. 1-23-1051
the proposed witness’s testimony would not have changed the outcome of trial and defendant had
not been prejudiced by counsel’s decision not to call her.
¶6 Following a hearing on May 31, 2023, the circuit court granted the State’s motion and
dismissed defendant’s postconviction petition.
¶7 On appeal, defendant has abandoned his claim of ineffective assistance of trial counsel
raised in his postconviction petition. Instead, for the first time on appeal, he solely contends that,
in light of the United States Supreme Court’s decision in [CITATION], the AHC statute under which he was convicted is facially
unconstitutional under the second amendment of the United States Constitution (U.S. Const.,
amend II).
¶8 Generally, a claim not raised in a postconviction petition cannot be raised for the first time
on appeal from the dismissal of that petition. [CITATION]. However, a challenge to a statute as facially unconstitutional is exempt from forfeiture and may
be raised at any time. [CITATION]. Here, the parties agree, and we
concur, that the record on appeal is sufficiently developed to allow this court to address defendant’s
constitutional challenge. See [CITATION]. Whether the AHC statute is constitutional is a question of
law which we review de novo. [CITATION] (citing [CITATION]).
¶9 The AHC statute provides:
“(a) A person commits the offense of being an armed habitual criminal if he or she
receives, sells, possesses, or transfers any firearm after having been convicted a total of 2
or more times of any combination of the following offenses:
No. 1-23-1051
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a
weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated
vehicular hijacking; aggravated battery of a child as described in Section 12-4.3 or
subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation;
gunrunning; home invasion; or aggravated battery with a firearm as described in
Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled Substances Act or the Cannabis
Control Act that is punishable as a Class 3 felony or higher.
(b) Sentence. Being an armed habitual criminal is a Class X felony.” 720 ILCS
/24-1.7 (West 2016).
¶ 10 Defendant argues that the AHC statute is unconstitutional under the second amendment on
its face. A facial challenge is “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional. [CITATION], ¶ 10. To rebut that
presumption and establish that a statute is facially unconstitutional, the party challenging the
constitutionality must demonstrate that there are no circumstances under which the statute would
be valid. Id. “If it is reasonably possible to construe the statute in a way that preserves its
constitutionality, we must do so.” Id.
¶ 11 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
[SEGMENT 15]
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], in which it stated that the second amendment elevated “the right of law-abiding,
====== End of Part ====== No. 1-23-1051
responsible citizens to use arms in defense of hearth and home.” [CITATION]. In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION]. The Court
reiterated that its decision in Heller “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” [CITATION] (quoting [CITATION]).
¶ 12 Following Heller and McDonald, courts developed a two-step analysis for evaluating
second amendment challenges to firearm regulations. See [CITATION]. ¶ 11.
First, the courts considered whether the regulated activity fell within the scope of the second
amendment as it was originally understood. Id. If the government did not establish that the
regulated activity was outside the scope of the second amendment, the courts proceeded to the
second step and conducted a “means-end analysis.” (Internal quotation marks omitted.) Id. During
that step of the analysis, the courts weighed the severity of the regulation against the ends which
the government sought to achieve in enacting the regulation. Id.
¶ 13 However, in 2022 the Supreme Court issued Bruen, in which it adopted a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]).
The Court condemned the means-end analysis. Id. (citing [CITATION]). Rather, under Bruen, where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate that the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
No. 1-23-1051
second amendment to mean. [CITATION] (citing [CITATION],
¶ 14 Initially, the State responds that in this case we need not reach the analytical framework
that [CITATION] provided. The State notes that [CITATION] concerned a portion of a New York statute that
only issued licenses to carry a firearm outside one’s home or place of business to those who showed
that “proper cause” existed. [CITATION]. The Court differentiated New York’s “may-
issue” licensing regime from the majority of states that have “shall-issue” licensing regimes, where
the states issue a license whenever an applicant meets certain, objective requirements. Id. at 38
n.9. [CITATION] expressly stated that nothing in its decision “should be interpreted to suggest the
unconstitutionality” of any “shall-issue” licensing regime. Id.
¶ 15 Following [CITATION], in [CITATION], this court rejected the defendant’s argument that the
aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a) (West 2020)) was facially
unconstitutional because it criminalized possessing a firearm if the possessor was not in
compliance with the Firearm Owners Identification (FOID) Card Act (430 ILCS 65/1 et seq. (West
2020)) or the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2020)) (Acts). [CITATION] We found in [CITATION] that those Acts were “shall-issue”
licensing programs of the type that [CITATION] had approved, and, therefore, the aggravated unlawful
use of a weapon statute was not unconstitutional for criminalizing the possession of a firearm by
a person who was not in compliance with those Acts. Id. ¶¶ 14-30.
¶ 16 The State notes that those Acts prohibit convicted felons from obtaining a FOID card or
CCL. 430 ILCS 65/8(c) (West Supp. 2021); 430 ILCS 66/25(2) (West 2022). The State asserts that
we may therefore reject defendant’s facial challenge to the AHC statute without reaching any of
No. 1-23-1051
the analytical steps provided by [CITATION] because, like those Acts, the AHC statute prohibits felons
from carrying firearms. We are not convinced that [CITATION] and [CITATION]’s discussion of licensing
schemes should control here. See [CITATION], ¶ 79 n.11 (rejecting the
State’s request to find [CITATION] inapplicable to the AHC statute based on [CITATION]’s endorsement of
shall-issue licensing regimes). In any case, the outcome of this appeal would not differ, as the AHC
statute is constitutional under [CITATION]’s analytical framework.
¶ 17 Thus, we turn to the analysis provided by [CITATION]. Again, the first question under [CITATION] is
whether the second amendment’s plain text covers the conduct at issue. [CITATION]. If
it does, the second question is whether the State has demonstrated that the regulation comports
with our national historical tradition of firearm regulation. Id.
¶ 18 Here, defendant claims that the conduct prohibited by the AHC statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
protected. We disagree. In [CITATION], the Supreme Court reiterated that the second amendment does
not grant an unrestricted right to carry firearms by all people at all times. Rather, it explained that:
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [CITATION].
Those restrictions, for example, limited the intent for which one could
carry arms, the manner by which one carried arms, or the exceptional circumstances under
which one could not carry arms, such as before justices of the peace and other government
officials.” Id. at 70.
¶ 19 In [CITATION], and [CITATION], the Supreme Court expressly stated that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] (agreeing
No. 1-23-1051
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also Heller, [CITATION] (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); McDonald, [CITATION]
(reiterating that Heller “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
¶ 20 On that basis, this court recently rejected a substantially similar facial constitutional
challenge to the AHC statute that defendant presents here, concluding that Bruen did not apply to
laws that attempted to regulate firearm possession by felons. See [CITATION]. In [CITATION], we found it significant that the majority opinion in Bruen repeated
the phrase “law-abiding” no fewer than 13 times. We further found that Bruen did not indicate any
intent to expand the second amendment’s protection to citizens who are not “law-abiding.” Id.
Moreover, we noted that the explicit holding in Bruen was that the New York statute violated the
fourteenth amendment because it prevented “ ‘law-abiding citizens with ordinary self-defense
needs from exercising their right to keep and bear arms.’ ” Id. (quoting Bruen, [CITATION]). We
stated, “[w]e presume that the Supreme Court’s inclusion of ‘law-abiding’ in the holding is not
superfluous or irrelevant, especially given the Court’s repeated use of the phrase throughout the
Bruen opinion, as well as its prior decisions.” Id.
¶ 21 Therefore, in light of our holding that the AHC statute was facially constitutional in [CITATION],
defendant’s facial challenge to that statute in this case must fail. See [CITATION],
¶ 10 (“A statute will be deemed facially unconstitutional only if there is no set of circumstances
under which the statute would be valid.”).
No. 1-23-1051
¶ 22 Defendant points out that in [CITATION], this court found that the defendant’s felon status was
“irrelevant” during the first step of its Bruen analysis and that the effect of the defendant’s prior
felony conviction on his second amendment right to possess a firearm was more appropriately
evaluated under the second step’s historical tradition analysis. [CITATION], ¶ 89. In [CITATION], the defendant claimed that the AHC statute was unconstitutional “as applied to
him.” Id. ¶ 1. It is well-settled that facial and as-applied constitutional challenges are not
interchangeable. [CITATION], ¶ 36. “An as-applied challenge requires a showing
that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” Id. Here, defendant raised only a facial challenge, which we determined above
is without merit.
¶ 23 Nevertheless, although we find it unnecessary to engage in a fulsome historical analysis, if
[SEGMENT 16]
we were to do so, defendant’s facial challenge would still fail. Under the second step of the Bruen
analysis, [CITATION] found ample historical support for the legislature’s ability to prohibit possession
of firearms by twice-convicted felons. [CITATION], ¶¶ 90-105. The
historical analogues included “widespread acceptance of the legislatures’ authority to disarm
felons” during the founders’ era. Id. ¶ 96. [CITATION] recognized a “historical tradition of legislatures
exercising their discretion to impose status-based restrictions disarming entire categories of
persons” and that “the founders understood that felons were one such group.” (Internal quotation
marks and citations omitted.) Id. ¶ 97.
¶ 24 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
was wrongly decided. We decline to revisit [CITATION] here. Rather, we will follow [CITATION] and reject
defendant’s facial challenge to the AHC statute under the second amendment. As defendant has
No. 1-23-1051
not shown that the AHC statute is unconstitutional, we affirm the circuit court’s dismissal of his
postconviction petition.
¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 26 Affirmed.
- 10 -
2024 IL App (1st) 230788-U
-23-0788
July 30, 2024
Second Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
RODNEY A. ALEXANDER, ) Appeal from the
) Circuit Court of
Petitioner-Appellee, ) Cook County.
)
v. ) No. 22 OP 76949
)
) Honorable
SYLVENIA L. ALEXANDER, ) Beatriz A. Frausto-Sandoval
) and Marina Ammendola,
Respondent-Appellant. ) Judges Presiding.
PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: Respondent’s appeal dismissed for lack of jurisdiction where notice of appeal was
untimely.
¶2 Respondent Sylvenia L. Alexander appeals pro se from the circuit court’s order of March
8, 2023, denying her second motion to vacate a one-year plenary order of protection against her 1-23-0788
and in favor of petitioner Rodney A. Alexander and their minor child, M.A. 1 We dismiss for lack
of jurisdiction.
¶3 The record on appeal comprises a single volume of common law record, from which we
have gleaned the following facts and procedural history.
¶4 On August 29, 2022, Rodney filed a pro se petition for an order of protection against
Sylvenia, his spouse, for himself and M.A, alleging that Sylvenia injured herself damaging
property and threatened to take M.A. to an undisclosed location. He further alleged that Sylvenia
was previously recommended for voluntary inpatient care. On the same day, the circuit court
entered an emergency order of protection, granting Rodney exclusive possession of the shared
residence and care and possession of M.A., and ordering Sylvenia to have no contact with Rodney
and M.A.
¶5 On August 30, 2022, Sylvenia filed an emergency motion to vacate the emergency order
of protection, arguing that she had “no family here, no place to go” and was “struggling with health
issues.”
¶6 On October 6, 2022, with both parties present via Zoom, the court modified the emergency
order of protection to include “no unlawful contact” and extended the order. On November 3,
2022, neither party appeared, and the court further extended the order of protection until December
9, 2022.
Since the parties share the same last name, we will refer to them by their first names.
Sylvenia also purports to appeal from an unspecified order that she claims was entered on January
9, 2023. As explained in this order, the record on appeal does not reflect that an order was entered on that
date.
The Honorable Beatriz A. Frausto-Sandoval entered the emergency and plenary orders of
protection. The Honorable Marina Ammendola presided over subsequent proceedings.
1-23-0788
¶7 On November 16, 2022, Rodney filed an emergency motion to modify the order of
protection to include control of the residence and no contact by Sylvenia, asserting that Sylvenia
violated the order of protection by locking him out of the residence. Rodney also expressed concern
for M.A.’s “safety and security.” The court granted Rodney’s motion, ordering Sylvenia to vacate
the residence since Rodney was granted exclusive possession.
¶8 On December 9, 2022, Rodney appeared but Sylvenia did not. The court entered a default
plenary order of protection, granting Rodney exclusive possession of the residence and physical
care and possession of M.A., and prohibiting any unlawful contact by Sylvenia for a period of one
year expiring December 8, 2023.
¶9 On December 22, 2022, Sylvenia filed a motion to vacate the default plenary order and
requested a hearing regarding the plenary order “based on petitioner[’s] testimony.” On January 3,
2023, with both parties present via Zoom, the court ordered that the plenary order would stand.
¶ 10 On January 6, 2023, Sylvenia filed a motion for substitution of judge, alleging that she had
not been able to present any evidence or testimony during the proceedings, and the court was “[n]ot
considering all factors for a determination to be given.” On January 9, 2023, she filed a motion to
vacate the default judgment. The court modified the order to include a parenting agreement on
January 27, 2023.
¶ 11 On February 24, 2023, Sylvenia filed another motion to vacate the default plenary order of
protection.
¶ 12 On March 8, 2023, with both parties present, the court denied Sylvenia’s second motion to
vacate the default plenary order of protection, stating that “respondent’s motion fail[ed] to provide
1-23-0788
any new facts or law” and that the court previously ruled on a motion to vacate. The court also
denied Sylvenia’s motion for substitution of judge, noting that it heard “extensive oral argument.”
¶ 13 Sylvenia filed a notice of appeal on May 2, 2023, listing January 9, 2023, and March 8,
2023, as the dates of the orders appealed.
¶ 14 On June 7, 2024, we entered an order taking this case for consideration on the record and
Sylvenia’s pro se brief only. See [CITATION].
¶ 15 At the outset, we observe that although Sylvenia purports to appeal from orders entered on
January 9 and March 8, 2023, the record on appeal does not show that the circuit court entered an
order on January 9, 2023. Rather, Sylvenia filed a motion to vacate the order of protection on that
date.
¶ 16 Turning to Sylvenia’s arguments on appeal, she claims that the circuit court erred in (1)
extending the order of protection on November 3, 2022; (2) entering a “mutual” order of protection
on November 14, 2022; (3) making libelous and slanderous remarks about Sylvenia; and (4)
exhibiting bias against Sylvenia.2
¶ 17 This court has an independent duty to consider its jurisdiction. [CITATION]. The filing of a notice of appeal initiates appellate review. [CITATION]. When the notice of appeal is untimely, the reviewing court
The record on appeal does not contain a copy of a “mutual” order of protection.
1-23-0788
does not have jurisdiction and must dismiss the appeal. [CITATION]
¶ 12.
¶ 18 Sylvenia appeals from the court’s March 8, 2023, order denying her motion to vacate the
plenary order of protection. An order of protection is injunctive, and “[a] motion to vacate a
protective order is considered one seeking to dissolve or modify an injunction.” [CITATION] Illinois Supreme Court Rule
307(a)(1) (eff. Nov. 1, 2017) allows an appeal from an interlocutory order “granting, modifying,
refusing, dissolving, or refusing to dissolve or modify an injunction.” Further, “the appeal must be
perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal.” Ill.
S. Ct. R. 307(a) (eff. Nov. 1, 2017).
[SEGMENT 17]
¶ 19 In this case, the circuit court denied Sylvenia’s second motion to vacate the default plenary
order of protection on March 8, 2023. Sylvenia did not file her notice of appeal until May 2, 2023,
beyond the 30-day period. Accordingly, since Sylvenia’s notice of appeal was untimely, we lack
jurisdiction to consider the merits of her appeal and must dismiss it. [CITATION]
¶ 20 For the foregoing reasons, we dismiss this appeal.
¶ 21 Dismissed.
2024 IL App (1st) 230968-U
No. 1-23-0968
Order filed July 8, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 3622
)
DASHAWN CARLDWELL, ) Honorable
) William G. Gamboney,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Justices Lavin and Coghlan concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for unlawful use or possession of a weapon by a
felon (UUWF) over his claim that the UUWF statute is facially unconstitutional
under the second amendment.
¶2 Following a bench trial, defendant Dashawn Carldwell was convicted of unlawful use or
possession of a weapon by a felon (UUWF) and sentenced to 4½ years’ imprisonment. On appeal,
he argues the UUWF statute under which he was convicted (720 ILCS 5/24-1.1(a) (West 2022)) No. 1-23-0968
is facially unconstitutional under the second amendment to the United States Constitution (U.S.
Const., amend. II). For the following reasons, we affirm.
¶3 Defendant was charged by indictment with, inter alia, UUWF based on knowingly
possessing a firearm after having previously been convicted of a felony.
¶4 At trial, Chicago police officer Isaiah Perez testified that, around 10:49 p.m. on March 7,
2022, he and two partners responded to a vehicle accident at the intersection of Division Street and
Cicero Avenue, in Chicago. He observed a crashed van at the north end of the intersection. As the
officers spoke to an occupant of the van, a woman approached and indicated that another vehicle
that had been involved in the accident was further north on Cicero. The officers drove north on
Cicero and Perez observed a crashed, unoccupied vehicle. A man approached and told the officers
that the person from that vehicle had run north on Cicero and then west on Potomac Avenue.
¶5 The officers drove to that area and Perez observed a man running north in an alley, “about
a street and a half” away from them. The officers drove into the alley and closed the distance.
When the officers were 100 to 300 feet from the man, he turned west into another alley. From 100
to 150 feet, Perez observed a dark, L-shaped object in the man’s hands that Perez believed was a
firearm. The man tossed the object over a fence. He continued running down the alley a short
distance, then stopped and raised his hands. The officers exited their vehicle and detained him.
Perez identified him in court as defendant. Officers ultimately recovered a loaded, black 9-
No. 1-23-0968
millimeter pistol from a backyard where Perez believed defendant had tossed the firearm. The
State published footage from Perez’s body-worn camera and he narrated the events depicted.1
¶6 The State entered stipulations that defendant had not been issued a valid firearm owner’s
identification card (FOID card) or concealed carry license (CCL), and he had previously been
convicted of a felony.
¶7 Following argument, the court found defendant guilty. The court denied defendant’s
motion for a new trial. Following a hearing, the court sentenced defendant to 4½ years’
imprisonment. The court denied defendant’s motion to reconsider the sentence.
¶8 On appeal, defendant argues that, in light of the United States Supreme Court’s decision in
[CITATION], the UUWF statute under
which he was convicted is facially unconstitutional under the second amendment to the United
States Constitution (U.S. Const., amend. II).
¶9 Whether a statute is constitutional is a question of law we review de novo. [CITATION] (citing [CITATION]).
¶ 10 Section 24-1.1(a) of the Criminal Code of 2012 provides:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
-1 of [the Criminal Code of 2012] or any firearm or any firearm ammunition if the person
has been convicted of a felony under the laws of this State or any other jurisdiction. This
The record on appeal does not include the correct video. Regardless, the video would have no
effect on our disposition of this appeal as defendant’s lone argument is that the statute under which he was
convicted is facially unconstitutional, an issue for which “[t]he particular facts related to the challenging
party are irrelevant.” [CITATION].
No. 1-23-0968
Section shall not apply if the person has been granted relief by the Director of the Illinois
State Police under Section 10 of the Firearm Owners Identification Card Act.” 720 ILCS
/24-1.1(a) (West 2022).
¶ 11 Defendant argues that the statute is unconstitutional under the second amendment on its
face. Facial challenges are “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional, and to rebut that presumption and show a statute is facially
unconstitutional, a party must establish that there are no circumstances under which the statute
could be validly applied. [CITATION], ¶ 10. “If it is reasonably possible
to construe the statute in a way that preserves its constitutionality, we must do so.” Id. A defendant
may challenge the constitutionality of a statute at any time, even for the first time on appeal. See
People v. Gunn, [CITATION], ¶ 8.
¶ 12 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” [CITATION]. In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION]. The Court
reiterated that its decision in [CITATION] “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” Id. at 786 (quoting [CITATION], 554 U.S. at
626-27).
No. 1-23-0968
¶ 13 Following Heller and McDonald, courts developed a two-step test for evaluating second
amendment challenges to firearm regulations. See [CITATION], ¶ 11. The first
step was considering whether the regulated activity fell within the scope of the second amendment
as it was originally understood. Id. If the government did not show the regulated activity was
outside the scope of the second amendment, the second step was conducting a “means-end
analysis.” (Internal quotation marks omitted.) Id. In that analysis, courts weighed the severity of
the regulation against the ends the government sought to achieve in enacting the regulation. Id.
¶ 14 However, in 2022 the Supreme Court issued Bruen, in which it announced a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]). The Court condemned the means-end analysis. Id. (citing [CITATION]).
Rather, under Bruen, where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
second amendment to mean. [CITATION], ¶ 70 (citing [CITATION]).
¶ 15 Initially, the State responds that in this case we need not reach the analytical framework
that Bruen provided. The State notes that [CITATION] concerned a portion of a New York statute that
[SEGMENT 18]
only issued licenses to carry a firearm outside one’s home or place of business to those who showed
that “proper cause” existed. [CITATION]. The Court differentiated such a “may-issue”
licensing regime from states that had “shall-issue” licensing regimes, in which the state issues a
No. 1-23-0968
license whenever the applicant meets certain, objective requirements. Id. at 38 n. 9. [CITATION] noted
that nothing in its decision “should be interpreted to suggest the unconstitutionality” of any “shall-
issue” licensing regime. Id.
¶ 16 Following [CITATION], in [CITATION], we rejected an argument that the aggravated unlawful use of a
weapon statute (720 ILCS 5/24-1.6(a) (West 2020)) was facially unconstitutional because it
criminalized possessing a firearm if the possessor was in noncompliance with the Firearm Owners
Identification Card Act (430 ILCS 65/1 et seq. (West 2020)) or Firearm Concealed Carry Act (430
ILCS 66/1 et seq. (West 2020)). [CITATION], ¶¶ 7, 19, 29-30. We found in
[CITATION] that those acts were “shall-issue” licensing programs of the type that [CITATION] had approved,
and the aggravated unlawful use of a weapon statute was therefore not unconstitutional for
criminalizing the possession of a firearm by a person in noncompliance with the acts. Id. ¶¶ 14-
30.
¶ 17 The State notes that those acts prohibit those who have been convicted of a felony from
obtaining a FOID card or CCL. 430 ILCS 65/8(c) (West Supp. 2021); 430 ILCS 66/25(2) (West
2022). The State maintains that we may therefore reject defendant’s facial challenge to the UUWF
statute without reaching any of the analytical steps provided by [CITATION] as, like those acts, the
UUWF statute prevents felons from carrying firearms. Although we recognize that the UUWF
statute provides that it does not apply if a felon “has been granted relief by the Director of the
Illinois State Police” pursuant to the Firearm Owners Identification Card Act (720 ILCS 5/24-
1.1(a) (West 2022)), we are not convinced that [CITATION] and [CITATION]'s discussion of licensing schemes
should control here. See [CITATION], ¶ 79 n. 11 (rejecting State’s request
to find [CITATION] inapplicable to similar statute based on [CITATION]'s endorsement of shall-issue licensing
No. 1-23-0968
regimes). In any case, the outcome of this appeal would not differ, as the UUWF statute is
constitutional under Bruen’s analytical framework.
¶ 18 Thus, we turn to the analysis provided by Bruen. Again, the first question under Bruen is
whether the second amendment’s plain text covers the conduct at issue. [CITATION] at 24. If
it does, the second question is whether the government has demonstrated that the regulation
comports with our national historical tradition of firearm regulation. Id.
¶ 19 Here, defendant claims that the conduct prohibited by the UUWF statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
protected. We disagree. Bruen did not provide that the second amendment granted an unrestricted
right to carry firearms. Rather, it explained that:
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [Citation.] Those
restrictions, for example, limited the intent for which one could carry arms, the manner by
which one carried arms, or the exceptional circumstances under which one could not carry
arms, such as before justices of the peace and other government officials.” Id. at 70.
¶ 20 In [CITATION], and Bruen, the Supreme Court established that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] at 8-10 (agreeing
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also [CITATION] at 635 (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); [CITATION] at
786 (reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
====== End of Part of Court Ruling ====== No. 1-23-0968
¶ 21 In two recent cases we rejected as-applied constitutional challenges to the UUWF statute
on that basis, concluding that Bruen did not apply to laws that attempted to regulate firearm
possession by felons. See [CITATION], ¶ 37 (noting that the justices
in the Bruen majority repeated the phrase “law-abiding” 18 times in their majority opinion and
concurrences); [CITATION], ¶¶ 27-28 (agreeing with [CITATION] and
noting that Heller suggested that felons did not maintain second amendment rights). As we held
that the UUWF statute could be validly applied to the defendants in [CITATION] and [CITATION], defendant’s
facial challenge to the statute must fail. See [CITATION], ¶ 10 (a statute is only
facially unconstitutional if there are no circumstances under which it could be validly applied); see
also [CITATION], ¶¶ 18-22 (following [CITATION] to reject facial
challenge to UUWF statute).
¶ 22 Defendant requests we depart from our holdings in [CITATION] and [CITATION] and instead follow
the reasoning in [CITATION], ¶¶ 88-89, which found that under the first step
of the two-part Bruen analysis, the second amendment protects the conduct of possessing a firearm,
regardless of the possessor’s felon status. See id. at 89 (reasoning that the first step under Bruen
“does not contemplate the actor or the subject” and so “the defendant’s status as a felon is irrelevant
at this stage of the analysis.”) We decline defendant’s invitation to follow [CITATION] with respect to
the first part of the Bruen analysis. That said, even were we to depart from the holdings in [CITATION]
and [CITATION], we would still find defendant’s facial challenge unavailing under the next step of
Bruen’s analytical framework, as there is sufficient historical precedent to ban felons from
possessing firearms.
No. 1-23-0968
¶ 23 Another district of this court recently considered and rejected a defendant’s facial challenge
to the UUWF statute under the second step of the Bruen analysis. [CITATION]. In [CITATION], the court reiterated that the Supreme Court in Heller and Bruen explained
“the right to bear arms has never been unlimited,” but “ ‘[t]hroughout modern Anglo-American
history,’ ” had been “ ‘subject to well-defined restrictions.’ ” Id. ¶ 27 (quoting Bruen, 597 U.S. at
38). Further, although felons were not broadly prohibited from possessing firearms until the
twentieth century, “such laws evolved from preexisting prohibitions restricting access to firearms,”
including by certain groups of people. Id. ¶¶ 28-29. In colonial America, for example, legislatures
“ ‘disarm[ed] individuals whose status indicated that they could not be trusted to obey the law.’ ”
Id. ¶¶ 30-31 (quoting [CITATION]). In [CITATION], the court therefore
concluded that, under Bruen, there was sufficient historical precedent to make the UUWF statute
facially constitutional, which it also noted had almost no effect on any law-abiding citizen’s right
to armed self-defense. Id. ¶¶ 32-33.
¶ 24 We also find instruction in [CITATION], in which we rejected an as-applied constitutional
challenge under Bruen to the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2016)
(criminalizing possession of firearms after twice being convicted of certain felonies)). [CITATION].
Although [CITATION] concluded (under the first step of Bruen
analysis) that the second amendment encompassed the conduct at issue, this court proceeded to
find (under the second step of the Bruen analysis) that there was ample historical support for the
legislature’s ability to prohibit possession of firearms by twice-convicted felons. Id. ¶¶ 90-105.
The historical analogues included “widespread acceptance of the legislatures’ authority to disarm
felons” during the founders’ era. Id. ¶ 96. [CITATION] recognized a “historical tradition of legislatures
No. 1-23-0968
exercising their discretion to impose status-based restrictions disarming entire categories of
persons” and that “the founders understood that felons were one such group.” (Internal quotation
marks and citations omitted.) Id. ¶ 97.
¶ 25 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
[SEGMENT 19]
is wrongly decided.2 We decline to revisit [CITATION] here. Rather, we will follow [CITATION], and [CITATION], and reject defendant’s facial challenge to the UUWF statute under the second
amendment. As defendant has not shown that the UUWF statute is unconstitutional, we affirm his
conviction.
¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 27 Affirmed.
Defendant does not discuss [CITATION], which was decided on April 19, 2024, after defendant filed
his initial brief and the State filed its response brief, but before defendant filed his reply brief on May 2,
2024.
- 10 -
==================================
2024 IL App (1st) 231877-U
No. 1-23-1877
Order filed June 26, 2024
THIRD DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
IN THE INTEREST OF R.W., a minor )
)
(THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Petitioner-Appellee, ) No. 22 JD 01971
)
v. ) Honorable
) Daryl Jones,
R.W., ) Judge, Presiding.
)
Respondent-Appellant.) )
JUSTICE D.B. WALKER delivered the judgment of the court.
Justices Lampkin and Van Tine concurred in the judgment.
ORDER
¶1 Held: The pertinent aggravated unlawful use of a weapon and unlawful possession of a
firearm statutes are constitutional, the evidence presented against respondent was sufficient
to uphold his conviction, and the judge’s admonishment was not in error. We affirm the
circuit court’s order.
¶2 After a bench trial, juvenile respondent R.W. was adjudicated delinquent on two charges
of aggravated unlawful use of a weapon (AUUW) based on his possession of a firearm while
====== End of Document ====== No. 1-23-1877
being under the age of 21 and his possession of a firearm without a valid Firearm Owner’s
Identification (FOID) Card. He was also adjudicated delinquent on one charge of unlawful
possession of a firearm (UPF) based on his possession of a concealable firearm while under
the age of 18. On appeal, he argues (1) that the statutes under which he was convicted are
unconstitutional, (2) that the circuit court erred when it denied his motion for a directed
finding of not guilty, (3) that the evidence presented at trial was insufficient to sustain his
conviction, and (4) that the judge improperly admonished him of his right to testify on his
own behalf.
¶3 I. BACKGROUND
¶4 Officer Audrey Webb of the Chicago Police Department testified that, on December 11,
, he was on patrol, riding in the rear passenger seat of an unmarked police car. At around
:00 p.m., Officer Webb saw respondent walking down the street with a bulge in the center
pocket of his hoodie. Officer Webb stated that his previous experience indicated that such a
bulge often indicated that an individual was attempting to conceal a weapon. Officer Webb
made eye contact with respondent, who “quickly put his hands in his hoodie pocket [in] what
we thought [was] an attempt to conceal a bulge.”
¶5 Officer Webb exited the vehicle and instructed respondent to approach him. Respondent
appeared reluctant to approach and pulled out “a bag of some sort of chips.” Officer Webb
asked him where he was going and felt the front of his hoodie. Although the hoodie felt
empty, respondent “bladed his stance away from [Officer Webb]” at that moment. Officer
Webb explained that “blading his stance” meant respondent turning his body to obstruct the
officer’s view of one side of his body. After blading his stance, respondent fled on foot down
the street and Officer Webb pursued on foot under the belief that he was concealing an illegal
No. 1-23-1877
firearm. At no point during the ensuing 30 second chase did the officer lose sight of
respondent. As respondent fled, Officer Webb saw him pull a black object from his
waistband and throw it toward a car parked along the street. About two to five seconds later,
the officer found and recovered a black Glock handgun with a blue handle where the black
object had been tossed. He abandoned the chase and lost sight of respondent while he
recovered the weapon, but “heard commotion through an open gate” nearby. Upon
investigating the commotion, he found his partner, Officer Alvarez, apprehending
respondent, whom he recognized because he was wearing the same clothes he had been
wearing moments before. The events leading up to respondent’s arrest were captured on
Officer Webb’s body-worn camera as well and that video was admitted as evidence.
¶6 Officer Webb testified that respondent had stated at some point during their interaction
that he was 17 years old. The following testimony was given regarding the question of
whether respondent possessed a FOID Card:
“PROSECUTION: In processing the minor, did you learn whether or not he had a
valid FOID or CCL Card?
OFFICER WEBB: Yes. And also due to him being 17 years old, he was unable to
obtain a CCL and a FOID.
PROSECUTION: Okay.”
¶7 After Officer Webb’s testimony, the State rested and respondent moved for a directed
finding of not guilty, asserting that the State had not presented sufficient evidence to
establish that he did not have a valid FOID Card. The circuit court responded that, “[i]n
viewing the evidence in the light most favorable to the State, which I’m required to do at this
time point, I am going to deny the motion.”
No. 1-23-1877
¶8 After a brief pause following the court’s ruling on the motion, the following exchange
occurred:
“DEFENSE COUNSEL: Judge – Judge, I talked to the minor earlier today, you
know, about his right to testify. That it was his right to remain silent. That is, you
know, solely his choice that only he can decide.
And now I believe it’s my understanding that he does not want to testify. Is that
correct that you don’t want to get up and talk?
(Discussion off the record.)
COURT: All right. And that’s right. [Respondent], this is your decision. You have
your attorney here that’s here to represent you, but this is the decision that you get to
make so you have the right to testify, and you have the right not to testify. You
understand that? You’re nodding your head yes.
RESPONDENT: I would like to testify to my innocence.
COURT: You would like to testify? Okay.
DEFENSE COUNSEL: You want to get up and talk?
COURT: So the minor said that he would like to testify.
DEFENSE COUNSEL: Okay. Your Honor, we call [respondent].”
¶9 Respondent testified that he lived on the street where he was arrested and had gone to the
store, where he had purchased a bag of chips. He was returning home when a police officer
spoke to him. He showed the bag of chips to the officer. He ran from the officer because he
was scared for his life and did not know what was about to happen. Respondent tried to run
home to his parent and was apprehended on the porch of his home. He denied throwing a
No. 1-23-1877
weapon onto the ground, that he ever had a weapon, and that he had ever seen the weapon
that had allegedly been in his possession.
¶ 10 On cross-examination, when asked why he was afraid for his life, respondent stated that
he very much did not like being touched and did not want the officer to touch him. He had
already shown the officer what the bulge was and was free to run if he so desired.
Respondent stated that Officer Webb grabbed him firmly with both hands, but admitted that
the body-worn camera footage showed the officer only using one hand. Respondent stated
that “the video been looking different” and “could be edited like.” Respondent expressed
concern that, since the police car was unmarked, its stopping could have indicated that
someone was going to shoot from inside the vehicle. The entirety of the questioning of
respondent regarding issuance and possession of a FOID Card was as follows:
“PROSECUTION: Do you have a valid FOID Card?
RESPONDENT: No.”
¶ 11 The circuit court adjudicated respondent delinquent on all three counts and sentenced him
to six months of probation. Respondent timely appealed and this appeal follows.
¶ 12 II. ANALYSIS
¶ 13 Respondent argues (1) that the statutes under which he was convicted are
unconstitutional, (2) that the circuit court erred when it denied his motion for a directed
[SEGMENT 20]
finding of not guilty, (3) that the evidence presented at trial was insufficient to sustain his
conviction, and (4) that the judge improperly admonished him of his right to testify on his
own behalf.
No. 1-23-1877
¶ 14 A. Constitutionality
¶ 15 Respondent asserts that the precedent established by the Supreme Court in New York
State Rifle & Pistol Ass’n, Inc. v. [CITATION], 597 U.S. 1, 142 S. Ct. 2111 (2022), rendered several
statutory provisions unconstitutional, both facially and as applied to him. Specifically
sections 24-1.6(a)(3)(C) and 24-1.6(a)(3)(I) of the Criminal Code of 1961, which are part of
the larger AUUW statute; the former section prohibits carrying a firearm without a FOID
card and the latter prohibits possession of a handgun by a person under 21 years of age
except where “the person under 21 is engaged in lawful activities under the Wildlife Code.”
ILCS 5/24-1.6(a)(3)(C) (West 2022), 720 ILCS 5/24-1.6(a)(3)(I). Respondent also
challenges the post-[CITATION] constitutionality of section 24-3.1(a)(1) of the Criminal Code of
, which defines the offense of unlawful possession of firearms and firearm ammunition
and prohibits possession of “any firearm of a size which may be concealed upon the person”
by an individual under 18 years of age. 720 ILCS 5/24-3.1(a)(1) (West 2022).
¶ 16 “Statutes are presumed constitutional, and to rebut that presumption, the party
challenging a statute’s constitutionality has the burden of establishing a clear violation.”
[CITATION], 2021 IL 125889, ¶ 10. “The distinction between facial and as-applied
constitutional challenges is critical.” [CITATION], 2018 IL 121932, ¶ 38. “A party
raising a facial challenge must establish that the statute is unconstitutional under any possible
set of facts, while an as-applied challenge requires a showing that the statute is
unconstitutional as it applies to the specific facts and circumstances of the challenging party.”
Id. “If it is reasonably possible to construe the statute in a way that preserves its
constitutionality, we must do so.” [CITATION], 2021 IL 125889, ¶ 10.
No. 1-23-1877
¶ 17 The State argues that because respondent did not raise his as-applied challenge before the
circuit court and therefore the circuit court did not hold an evidentiary hearing on the
constitutional question, the argument is forfeited on appeal. Respondent, predicting this
argument, asserts that the factual record is sufficiently developed and no evidentiary hearing
was necessary. [CITATION], by reference to [CITATION], supports respondent’s argument, because just
as in [CITATION], the key findings of fact, in this case whether respondent was under the ages of
and 18, and whether he possessed a firearm, were sufficiently established in the circuit
court. [CITATION], ¶44 (citing [CITATION] (abrogated on
other grounds by [CITATION])). A facial challenge, on the other hand,
may be raised at any time, regardless of whether a posttrial motion was filed. [CITATION].
¶ 18 The second amendment of the U.S. Constitution reads: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear Arms, shall
not be infringed.” U.S. Const., amend. II.
¶ 19 Respondent’s contention, that the fact that Bruen “rejected means-end scrutiny in favor of
an exclusively historical approach” renders the relevant statutes unconstitutional, relies on
premises that have already been sufficiently addressed in this court. This court has previously
addressed the validity of the FOID card requirement, finding that Bruen explicitly condoned
background checks, which are the cornerstone of the FOID act, and, indeed, only found
unconstitutional New York’s “proper cause” requirement. [CITATION] Accordingly, respondent’s challenge to the more general requirement that a
firearm carrier be issued a valid FOID card fails as well. The remainder of respondent’s
constitutional challenges are addressed by this court’s holding in [CITATION]
No. 1-23-1877
App (1st) 220455, and we see no need to repeat it at great length here. As we held in
[CITATION], our supreme court has already twice found that there is sufficient historical
precedent to establish that individuals under the age of 21 are outside the scope of the Second
Amendment. Id, ¶ 58 (citing [CITATION], ¶ 25 and [CITATION], ¶ 38). We believe that the history supporting our supreme court’s findings
in those cases has not changed in the intervening years. Although [CITATION] did not address the
UPF statute, its logic equally applies, as it is also an age-based restriction on individuals who
fall outside the scope of the Second Amendment. Accordingly, respondent’s facial challenge
fails and, as no set of facts can establish the unconstitutionality of the statute, neither can
respondent’s particular circumstances in his as-applied challenge. As such, we find that the
statutes under which respondent was charged are constitutional, both facially and as applied
to him.
¶ 20 B. Motion for Directed Finding
Respondent argues that the circuit court erred by denying respondent’s motion for a
directed finding. The motion in question was filed at the close of the State’s evidence and
asserted that the State had not presented competent evidence that respondent did not have a
valid FOID card at the time of the alleged offense. Respondent acknowledges that he failed
to renew his motion at the close of both parties’ evidence, as required. [CITATION]. Respondent asks that we nonetheless review the alleged error under
the plain-error doctrine, or else that we review the failure to renew the motion as ineffective
assistance of counsel.
¶ 21 Under the plain-error doctrine, a “narrow and limited exception” can allow for review of
an otherwise-forfeited claim where the appellant can demonstrate plain error. [CITATION]
No. 1-23-1877
Hillier, [CITATION]. The first hurdle that an appellant must surmount to
establish plain error is to “show that a clear or obvious error occurred.” Id. The first prong
that must be satisfied to demonstrate that trial counsel was ineffective is to show that one’s
“attorney’s actions constituted errors so serious as to fall below an objective standard of
reasonableness.” [CITATION].
¶ 22 A motion for a directed finding asserts that “as a matter of law, the evidence is
insufficient to support a finding or finding of guilty.” [CITATION]. “[S]uch a motion asks whether the State’s evidence could support a finding of
guilty beyond a reasonable doubt, not whether the evidence does in fact support that finding.”
Id. As the question presented to us is one of law, our standard of review is de novo. [CITATION].
¶ 23 Here, the question before us is whether the evidence was sufficient to support a factual
finding that respondent had not been issued a FOID card that was valid at the time of the
offense. 720 ILCS 5/24-1.6(a)(3)(C) (West 2022). At the time the motion for a directed
finding was made, the sum of the evidence to that end was the following testimony from the
officer who processed respondent upon his arrest:
“STATE: In processing the minor, did you learn whether or not he had a valid FOID
or CCL card?
OFFICER WEBB: Yes. And also due to him being 17 years old, he was unable to
obtain a CCL and a FOID.
STATE: Okay.”
¶ 24 Respondent asserts that the statement from Officer Webb is an incorrect legal conclusion
as to respondent’s eligibility for FOID and CCL cards at the time of the offense. While that is
No. 1-23-1877
one valid interpretation of the statement, the statement could also be interpreted in other
ways. One could interpret the affirmative answer to mean that he was able to confirm
whether or not he had been issued a card and the statement that followed, even if it was in
fact an incorrect legal conclusion, to clearly suggest that respondent had not been issued a
valid FOID card. Alternatively, one could interpret the affirmative answer to mean that he
was able to determine whether he had been issued a card and the statement that followed to
mean that he had in fact been unsuccessful in obtaining a FOID card due to his age and an
implied lack of consent from his parents. As a reasonable mind could fairly conclude
respondent’s guilt with regard to this particular element of the offense based on that
testimony, we cannot find that the circuit court erred when it denied the motion for a directed
finding. Accordingly, as it was not properly preserved, respondent’s claim regarding the
[SEGMENT 21]
motion for a directed finding is forfeited on appeal.
¶ 25 C. Sufficiency of the Evidence
¶ 26 Respondent argues that even if the circuit court did not err by denying his motion for a
directed finding, the evidence regarding whether he had been issued a FOID card was
insufficient to support a conviction.
¶ 27 “In reviewing a sufficiency of the evidence claim, a reviewing court must determine
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” (emphasis in original) (internal quotation marks omitted.) [CITATION]. “All reasonable inferences from the evidence must be drawn in
favor of the prosecution.” [CITATION]. “In weighing evidence,
the trier of fact is not required to disregard inferences which flow normally from the evidence
No. 1-23-1877
before it, nor need it search out all possible explanations consistent with innocence and raise
them to a level of reasonable doubt.” [CITATION]
¶ 28 “When considering a challenge to the sufficiency of the evidence, it is not the function of
the reviewing court to retry the defendant.” [CITATION] “The testimony of a single witness, if positive and credible, is sufficient to convict,
even though it is contradicted by the defendant.” (Internal Citation Omitted.) Id. “A
reviewing court will not reverse a conviction simply because the evidence is contradictory or
because the defendant claims a witness was not credible.” Id. A reviewing court “will not
reverse a criminal conviction unless the evidence is so unreasonable, improbable, or so
unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” [CITATION]
¶ 29 The same potential inferences that allow for the circuit court’s denial of respondent’s
motion for a directed finding similarly prove sufficient under this analysis. In addition,
respondent chose to take the stand himself and, when asked, stated that he did not have a
valid FOID card.This phrase could be interpreted to mean that although he may have had a
valid FOID card at the time of the offense, he did not have one at the time of his testimony.
That said, it would also be reasonable, in the context of a trial in which the question of
whether he had a valid FOID Card at the time of the offense was a crucial question, to
interpret the question and response to be referring to the time of the offense, even if the
question was inartfully phrased. Drawing all inferences in favor of the prosecution, the
evidence presented was sufficient for a rational trier of fact to find that respondent lacked a
valid FOID Card at the time of the offense. Accordingly, the evidence presented was
sufficient to sustain respondent’s adjudication.
No. 1-23-1877
¶ 30 D. Admonishment
¶ 31 Respondent argues that the circuit court improperly admonished him regarding his right
to testify or not testify, and thereby infringed upon his fourteenth amendment due process
right to a fair trial where such admonishment prejudiced the outcome of the trial. U.S. Const.,
amend. XIV.
¶ 32 Respondent acknowledges that he failed to preserve this error via objection and a post-
trial motion, but asks that we review it nonetheless, either under plain-error review or under a
lowered standard applicable to potential judicial misconduct. Respondent is correct that “a
less rigid standard of waiver applies when the issue involves potential misconduct by a trial
judge.” [CITATION]. As the alleged error here
concerns the circuit court’s behavior, we will review the alleged error. [CITATION]. As this is a question of law, our standard of review is de novo.
[CITATION].
¶ 33 Respondent devotes considerable effort to demonstrating that the admonition from the
circuit court was unnecessary but fails to show that unnecessary equates in any way to
improper. We fail to see any legal pertinence to that element of respondent’s claim.
¶ 34 Respondent cites four cases on this subject. All four concern instances in which a
defendant chose not to testify after an admonition, or lack thereof, from the circuit court. Id.,
[CITATION]. Of those, Smith and Medina cite to a federal case,
Martinez, for its explanation of why a circuit court is not required to admonish a defendant
regarding his right to testify, most notably, in this case, the third of seven enumerated
reasons: “Third, by advising the defendant of his right to testify, the court could influence the
No. 1-23-1877
defendant to waive his right not to testify, thus threatening the exercise of this other,
converse, constitutionally explicit and more fragile right.” (internal citation omitted)
(emphasis in original) [CITATION]. In all three cases, this
warning, that a circuit court’s admonition might sway the defendant, is presented as a reason
that such an admonition is not required, not as a reason that such an admonition is improper.
[CITATION]. However, even if we were to
accept that all of the caselaw concerning defendants who waived their right to testify after an
admonition from the circuit court applies equally to defendants who choose to testify after an
improper admonition, the circuit court’s admonishment in this case does not rise to the level
of impropriety.
¶ 35 Vaughn is instructive on this matter:
“[I]t is the defense counsel’s responsibility to advise a defendant about his right to
testify and explain any advantages or disadvantages of that right. However, the
ultimate decision of whether to testify is made by the defendant.
When a defendant is represented by counsel, it is left to the discretion of the trial
court whether to inform the defendant of the right against self-incrimination. If a trial
court chooses to advise a witness of his rights, the trial judge must walk the fine line
between, on the one hand, fully advising the witness of the danger of self-
incrimination and the right not to testify, and, on the other hand, threatening the
witness to an extent which materially impairs the defendant’s due process right to
present witnesses in his defense.
A defendant is deprived of his due process right to a fair trial if the judge’s
admonitions cause the defendant not to testify and are improper, thereby prejudicing
No. 1-23-1877
the outcome of the trial. In other words, even if the remarks are improper and cause
the defendant not to testify, a defendant is not deprived of his due process right to a
fair trial unless it affects the outcome of the trial.” (internal quotations omitted)
(internal citations omitted) [CITATION], 354 Ill. App. 3d at 925.
¶ 36 “The specific facts and circumstances of the case must be considered to determine
whether the admonitions are improper.” Id. Examples provided in [CITATION] include where the
trial judge threatened a witness with an indictment for perjury; where a judge editorialized
that it would be “foolish” for a witness to testify; where the admonitions are based on
mistaken facts of a plea bargain; where they are excessive, “such as where a judge informs a
witness of his right not to testify on six occasions even though the witness indicated on more
than three occasions that he wished to testify;” and where a judge’s admonitions “indicate the
judge is no longer acting in the role of a neutral decision-maker.” Id. at 925-26.
¶ 37 The scenario presented in the case at bar does not even loosely resemble any of the
examples presented in [CITATION]. Here, the following exchange is what respondent presents as
improper:
“DEFENSE COUNSEL: Judge – Judge, I talked to the minor earlier today, you
know, about his right to testify. That it was his right to remain silent. That is, you
know, solely his choice that only he can decide.
And now I believe it’s my understanding that he does not want to testify. Is that
correct that you don’t want to get up and talk?
(Discussion off the record.)
COURT: All right. And that’s right. [Respondent], this is your decision. You have
your attorney here that’s here to represent you, but this is the decision that you get to
No. 1-23-1877
make so you have the right to testify, and you have the right not to testify. You
understand that? You’re nodding your head yes.
RESPONDENT: I would like to testify to my innocence.
COURT: You would like to testify? Okay.
DEFENSE COUNSEL: You want to get up and talk?
COURT: So the minor said that he would like to testify.
DEFENSE COUNSEL: Okay. Your Honor, we call [respondent].”
¶ 38 At the beginning of the exchange, defense counsel seeks to confirm with the respondent
that he did not wish to testify. At no point on the record does respondent confirm this. After a
conversation off the record, the court seemed to confirm a statement from another individual,
presumably respondent or defense counsel, stating that it was respondent’s choice. The
circuit court presented the right to testify and not to testify equally, with no emphasis or
[SEGMENT 22]
indication that either was preferable or superior. After the circuit court asked respondent if he
understood, respondent stated that he would like to testify. It is difficult to conceive of a
more neutral stance from the court. To find that this admonition was improper would render
any admonition from the circuit court improper where the respondent’s decision to testify
ultimately resulted in testimony that could be interpreted to be against his or her own interest.
Were that the supreme court’s intent, it would have found an admonition from the circuit
court to be impermissible, not merely unnecessary.
¶ 39 Additionally, the only prejudicial effect that respondent suggests resulted from his
testimony is that he testified that he did not have a FOID card. As that fact had already been
established by Officer Webb’s testimony, we see no clear prejudice from respondent’s choice
to testify. Accordingly, we find no error on the part of the circuit court.
No. 1-23-1877
¶ 40 III. CONCLUSION
¶ 41 For the foregoing reasons, we affirm respondent’s adjudication.
¶ 42 Affirmed.
2024 IL App (1st) 221178-U
No. 1-22-1178
Filed May 30, 2024
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 CR 1375
)
MICHAEL SANTILLANES, ) Honorable
) Joseph M. Claps,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of court.
Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: Aggravated unlawful use of a weapon conviction affirmed over facial constitutional
challenge.
¶2 Following a bench trial, Michael Santillanes was convicted of three counts of aggravated
unlawful use of a weapon (AUUW) and sentenced to two years in prison. On appeal, he asserts
the provision of the AUUW statute that criminalizes possession of a firearm in public without
having been issued a valid firearm owner’s identification (FOID) card is facially unconstitutional No. 1-22-1178
in light of the United States Supreme Court’s decision in [CITATION]. We disagree and affirm the conviction. 1
¶3 I. BACKGROUND
¶4 At trial, Andrew Szparkowski testified his car broke down near the intersection of West
67th Street and South Keating Avenue in Chicago on the evening of December 27, 2019. As
Szparkowski was examining his car’s engine, a man he identified as Santillanes stepped down
from a Hummer SUV parked nearby. Santillanes approached Szparkowski and told him to get out
of the neighborhood. Szparkowski replied that he was waiting for a friend who was on his way
and that he would leave once they jumpstarted the car. Santillanes said that was fine and began
walking away. He turned, however, and pointed a handgun at Szparkowski, telling him there would
be bullet holes in his car if it were not gone by morning. Szparkowski called the police a short time
later.
¶5 Chicago Police Officer Evans 2 testified he responded to Szparkowski’s call. Upon reaching
the location, he observed a Hummer SUV parked on the street. Officer Evans approached the
passenger side of the vehicle, where he found Santillanes, the sole occupant, seated. A search of
Santillanes’s person revealed nothing, but Officer Evans discovered a Taurus 9mm semi-automatic
handgun on the rear seat. A computer inquiry revealed Santillanes did not have a valid FOID card
or concealed carry license (CCL). The Hummer SUV was not registered to Santillanes, and the
handgun was not registered to anyone.
¶6 The parties stipulated that Santillanes did not possess a valid FOID card or CCL at the time
of the offense. Santillanes did not testify or present any evidence.
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
appeal has been resolved without oral argument upon the entry of a separate written order.
The record does not contain Officer Evans’s first name.
No. 1-22-1178
¶7 The trial court found Santillanes guilty of three counts of AUUW: one count premised on
lack of a CCL and FOID card, the second premised on lack of a CCL, and the third premised on
the lack of a FOID card. The court acquitted him of a fourth count, which alleged he made a threat
of violence against Szparkowski. The court sentenced Santillanes to two years in prison on the
count premised on the lack of a FOID card. The other two counts merged. This appeal followed.
¶8 II. ANALYSIS
¶9 Santillanes argues that, based on Bruen, criminalizing the public carrying of a firearm
without a valid FOID card violates the Second Amendment. For that reason, Santillanes asserts
that his AUUW conviction must be vacated. In his opening brief, Santillanes takes issue with the
FOID Card Act’s (430 ILCS 65/0.01 et seq. (West 2018)) requirements, which are a precondition
for a person to lawfully acquire or possess a firearm in Illinois. He contends the requirement to
obtain a FOID card burdens the right to carry firearms in public for self-defense. Santillanes then
argues that historical tradition from the 18th and 19th century precludes burdening that right by
requiring a person to first obtain a license. He also submits that historical firearm regulation was
not punitive but either required certain persons to post a surety or imposed small fines. Santillanes
further insists that a footnote in the Bruen decision—appearing to approve of state firearm “shall
issue” licensing schemes like the one in Illinois—is dicta and should not control the issue.
¶ 10 In his reply brief, however, Santillanes states that he is not asserting an “ ‘unqualified
right’ ” to public carry “that cannot be burdened by any restriction whatsoever.” He also observes
that the State’s counterarguments are “overly focused on the perspective of an applicant seeking a
license under the FOID Card Act” and explains that his challenge pertains to “the punitive AUUW
statute under which he was convicted.” Santillanes then emphasizes a comparison between those
penalties imposed by historical regulations versus the criminal AUUW statute.
No. 1-22-1178
¶ 11 The arguments in Santillanes’s briefs are not consistent. He initially asserts his challenge
is to the criminalization of possessing a firearm without a FOID card, but he then devotes much of
his brief to attacking the FOID Card Act itself as burdening the right to bear arms. In contrast,
Santillanes’s reply brief suggests he is not challenging the FOID Card Act, but only the penalty for
violating it, which is contained in the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West
)). This inconsistency makes our review difficult, as it is unclear what precise question is
before us. We are entitled to have issues clearly defined with pertinent authority and coherent
arguments presented. [CITATION], ¶ 50. Nevertheless, Santillanes asserts his claim is a facial challenge to the portion of the AUUW
statute making firearm possession without a FOID card a criminal offense subject to criminal
penalties, including imprisonment.
¶ 12 Facial challenges to a statute may be raised at any time. [CITATION], ¶ 13. A party raising a facial challenge must establish that the statute is unconstitutional under any
possible set of facts. [CITATION], ¶ 38.
¶ 13 The Bruen decision “announced a new analytical framework for evaluating the
constitutionality of firearm regulations.” [CITATION], ¶ 68.
Previously, if the regulated activity fell within the scope of the Second Amendment, courts could
weigh the severity of a firearm regulation—the means—against the ends the government sought
to achieve. Id. ¶ 67. In Bruen, the Supreme Court condemned any means-ends analysis and instead
required the government to “ ‘justify its regulation by demonstrating that it is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. ¶ 69 (quoting Bruen, 597 U.S. at 24).
¶ 14 Under the Bruen framework, the government must point to a historical representative
analogue from before, during, and after the Nation’s founding as precedent to justify its firearm
No. 1-22-1178
regulation. Id. ¶¶ 70-71. The historical analogue need not be exact, but should be “ ‘relatively
similar’ ” to the challenged modern-day regulation. Id. ¶ 72 (quoting [CITATION]). The
[SEGMENT 23]
inquiry would turn on “whether the ‘modern and historical regulations impose a comparable
burden on the right of armed self-defense and whether that burden is comparably justified.’ ” Id.
¶ 73 (quoting [CITATION]).
¶ 15 In [CITATION], the Court struck down New York’s licensing regime that required applicants to
demonstrate “some additional special need” to carry a handgun publicly, rather than “issu[ing]
licenses to carry based on objective criteria.” [CITATION]. The Court differentiated
between “may-issue” licensing regimes like New York’s, where “authorities have discretion to
deny concealed-carry licenses even when the applicant satisfies the statutory criteria,” and
“shall-issue” licensing regimes in 43 states, where “authorities must issue concealed-carry licenses
whenever applicants satisfy certain threshold requirements, without granting licensing officials
discretion to deny licenses based on perceived lack of need or suitability.” Id. at 13-14. The Court
included Illinois among the 43 “shall-issue” regimes. Id. at 13 n.1. In a footnote, the Court stated:
“To be clear, nothing in our analysis should be interpreted to suggest the
unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general
desire for self-defense is sufficient to obtain a [permit].’ [CITATION.] Because these licensing
regimes do not require applicants to show an atypical need for armed self-defense, they do
not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second
Amendment right to public carry. [CITATION.] Rather, it appears that these shall-issue
regimes, which often require applicants to undergo a background check or pass a firearms
safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in
fact, ‘law-abiding, responsible citizens.’ [CITATION.] And they likewise appear to contain
No. 1-22-1178
only ‘narrow, objective, and definite standards’ guiding licensing officials, [CITATION] rather
than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an
opinion,’ [CITATION] features that typify proper-cause standards like New York’s. That said,
because any permitting scheme can be put toward abusive ends, we do not rule out
constitutional challenges to shall-issue regimes where, for example, lengthy wait times in
processing license applications or exorbitant fees deny ordinary citizens their right to
public carry.” Id. at 38 n.9.
¶ 16 In [CITATION], a defendant sought reversal of his AUUW
conviction premised on lack of a FOID Card. Like Santillanes, Gunn argued his conviction could
not stand in light of Bruen. Id. ¶¶ 7, 17. This court rejected Gunn’s challenge, noting the Supreme
Court’s differentiation between “shall-issue” and “may-issue” licensing regimes. Id. ¶ 19 (citing
[CITATION]). We remarked, “[t]here is no need for us to engage in a historical analysis
of firearm regulation when the Supreme Court has already done so and explicitly sanctioned the
use of background checks.” Id.
¶ 17 Insofar as Santillanes challenges the FOID Card Act itself, his challenge offers no reason
to revisit the issue we resolved in [CITATION]. 3 We decline to consider the Supreme Court’s footnote as
mere obiter dicta, 4 as the Court’s distinction between “may-issue” and “shall-issue” licensing
regimes was essential to Bruen’s holding that New York’s law was unconstitutional. Nor does the
footnote’s indication that the Court would not “rule out” challenges to “shall-issue” licensing
regimes prompts us to conduct a historical comparison. The Court contemplated that such a
This court has rejected similar Bruen-based challenges in several unpublished orders. See [CITATION].
“Obiter dicta are comments in a judicial opinion that are unnecessary to the disposition of the
case.” [CITATION].
No. 1-22-1178
challenge could be cognizable when licensing regimes impose obstacles to public carry such as
lengthy wait times or exorbitant fees. In no way, however, can the Court’s comment be read to
endorse an attack on a licensing requirement itself. But that is the sort of challenge Santillanes
asserts regarding the FOID Card Act—an attack on the basic requirement to obtain a license as a
precondition to carry a firearm in public for self-defense. Accordingly, we follow [CITATION] and reject
Santillanes’s challenge to the FOID Card Act.
¶ 18 We turn to the thrust of Santillanes’s challenge. Unlike [CITATION], who solely challenged the
FOID Card Act, Santillanes argues that the Second Amendment prohibits the imposition of
criminal penalties for carrying a firearm in public without a valid FOID card. He contends that
historical analogues restricting public carry only required posting a surety or imposed small fines.
Thus, in Santillanes’s view, the analytical framework announced in Bruen should lead us to find
that the criminal penalties of the AUUW statute are contrary to the historical tradition of firearm
regulation and therefore unconstitutional.
¶ 19 Taken to its logical conclusion, Santillanes’s argument would have us interpret the Second
Amendment to prohibit a state from imposing criminal penalties for violating a firearm licensing
regulation, even if the regulation itself passes constitutional muster. No court has taken such a leap.
We are aware of no authority that supports limitations on penalties for otherwise valid firearm
regulations and Santillanes does not cite any. Second Amendment jurisprudence has been
concerned with protecting the right to armed self-defense from burdens imposed by regulations,
not protecting individuals from penalties if they choose to disregard valid regulations. Since the
Second Amendment has never been interpreted to bar a state from making public firearm
possession in violation of a valid regulation a criminal offense, Santillanes facial challenge fails.
No. 1-22-1178
¶ 20 Separate from his appeal of the AUUW conviction in this case, Santillanes seeks vacatur
of two prior AUUW convictions. Unlike this case, Santillanes was previously convicted under a
subsection of the AUUW statute that was found to amount to a flat ban on firearm possession
outside the home and facially invalid under the second amendment. See [CITATION], ¶¶ 19-22. Such convictions are void and may be attacked at any time in any court. [CITATION], ¶ 57. The State agrees that Santillanes prior AUUW convictions are void
and should be vacated. Thus, we vacate both convictions.
¶ 21 III. CONCLUSION
¶ 22 For these reasons, we affirm the judgment of the trial court in this case and vacate the
judgments of conviction in case number 11 CR 00131 and case number 11 CR 09407.
¶ 23 Appeal No. 1-22-1178 Affirmed.
¶ 24 Case No. 11 CR 00131 Judgment vacated.
¶ 25 Case No. 11 CR 09407 Judgment vacated.
[CITATION]
2024 IL App (4th) 230428
FILED
May 20, 2024
NO. 4-23-0428
Carla Bender
th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Stephenson County
LEVI T. BURNS, ) No. 22CF68
Defendant-Appellant. )
) Honorable
) Glenn R. Schorsch, III,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Steigmann and Doherty concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Levi T. Burns, was found guilty of unlawful
possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2022)). The trial court
sentenced defendant to three years in prison. Defendant appeals, arguing that his UPWF conviction
and the predicate offense of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-
1.6(a)(1), (a)(3)(A-5) (West 2020)) violate the second amendment to the United States
Constitution (U.S. Const., amend. II) and article I, section 22, of the Illinois Constitution (Ill.
Const. 1970, art. I, § 22). We affirm.
¶2 I. BACKGROUND
¶3 On July 28, 2022, defendant was charged by information with one count of UPWF.
The information alleged that, on March 17, 2022, defendant, a felon, knowingly possessed firearm
ammunition. ¶4 On February 7, 2023, the matter proceeded to a jury trial. The parties stipulated that
defendant had a prior felony conviction, and the following evidence was adduced. On March 17,
[SEGMENT 24]
2022, Freeport police officer Justin Holden was monitoring social media accounts, looking for
potential violations of the law. Holden testified that he was monitoring Snapchat, a platform where
photographs or videos are posted to one’s “story” immediately after being taken. Holden observed
a video posted to “an account entitled, Levi Burns” approximately four minutes earlier. In the
video, defendant was holding a black firearm magazine and in the magazine were “gold and red
shotgun shells.” The video appeared to have been recorded in a bedroom. Defendant was wearing
a black shirt and was covered in a dark blanket. Holden testified that he took a recording of the
video on a separate work phone. The video was played for the jury.
¶5 Approximately 90 minutes after Holden observed the video, he and other officers
responded to defendant’s address. When they arrived, Holden explained why he was there, and
defendant allowed the officers inside. Defendant showed them the bedroom where he took the
video. Holden testified that defendant was wearing the same shirt he wore in the video, and Holden
saw the blanket from the video on the floor. The officers did not locate a magazine or ammunition
at defendant’s residence, and defendant explained that his friend, King Stevenson, owned them.
The officers then went to Stevenson’s residence and recovered from Stevenson the same magazine
and ammunition defendant was holding in the video.
¶6 Stevenson explained that the police arrived at his residence approximately 15
minutes after he left defendant’s home. Prior to that time, Stevenson had been at defendant’s
residence for about 50 minutes. Stevenson had with him at defendant’s home the magazine and
ammunition for his Centurion shotgun that he owned. Stevenson explained that he had allowed
defendant to hold the magazine and was in the room when defendant made the video in which he
was holding the ammunition.
¶7 The jury found defendant guilty. On February 8, 2023, defendant filed a motion for
a new trial, arguing, inter alia, that the State failed to prove that the ammunition defendant
possessed was “functional ammunition” and that the trial court erred in admitting the Snapchat
video. The court denied the motion for a new trial and sentenced defendant to three years in prison.
This appeal followed.
¶8 II. ANALYSIS
¶9 On appeal, defendant argues that we should reverse his conviction for UPWF
because the UPWF statute violates the second amendment to the United States Constitution (U.S.
Const., amend. II) and article I, section 22, of the Illinois Constitution (Ill. Const. 1970, art. I,
§ 22). He also argues that his UPWF conviction should be reversed because the predicate offense
for that conviction was his prior conviction for AUUW, and the AUUW statute also violates the
United States and Illinois Constitutions.
¶ 10 A person raising a constitutional challenge to a statute carries the heavy burden of
rebutting the strong judicial presumption that the challenged statute is constitutional. [CITATION], ¶ 23. To overcome this presumption, the challenging party must clearly
establish that the statute violates the constitution. [CITATION], ¶ 23. Courts have a duty
to uphold the constitutionality of a statute whenever reasonably possible, resolving doubts in favor
of the statute’s validity. [CITATION], ¶ 23. Whether a statute is constitutional is a matter
of law that we review de novo. [CITATION], ¶ 23.
¶ 11 A constitutional challenge to a statute may be either facial or as applied. [CITATION], ¶ 24. A facial challenge requires the challenging party to show that the statute is
unconstitutional under any set of facts, while an as-applied challenge depends on the particular
facts and circumstances of the party. [CITATION]. Challengers raising a facial
challenge carry a particularly heavy burden, as the fact that the statute might operate
unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly
invalid. [CITATION].
¶ 12 A. Whether Defendant’s Conviction for UPWF Violates the Second Amendment
¶ 13 Defendant first argues that his conviction for UPWF violates the second
amendment both facially and as applied to him pursuant to the United States Supreme Court’s
decision in [CITATION].
¶ 14 The second amendment provides, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.
Const., amend. II. The United States Supreme Court has “recognized that the Second and
Fourteenth Amendments [(U.S. Const., amends. II, XIV)] protect the right of an ordinary, law-
abiding citizen to possess a handgun” inside and outside the home “for self-defense.” [CITATION].
¶ 15 In [CITATION], the Supreme Court announced a test for assessing the constitutional
validity of laws seeking to regulate conduct protected by the second amendment. The Court
explained that “when the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.” [CITATION]. To justify regulation of
that protected conduct, “the government must demonstrate that the regulation is consistent with
this Nation’s historical tradition of firearm regulation.” [CITATION]. Thus, “[o]nly if a
firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the
individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ” [CITATION] (quoting [CITATION]). Under
this framework, the Court concluded that a New York firearm licensing regime that required
individuals to show a “special need for self-defense” to carry a firearm in public violated citizens’
right to bear arms. [CITATION]. The Court reasoned, after analyzing the Anglo-
American history of regulating the public carry of weapons, that there was no showing that New
York’s firearm licensing regime was supported by “an American tradition justifying” it. [CITATION].
¶ 16 Defendant challenges the constitutionality of section 24-1.1(a) of the Criminal
Code of 2012 (Code), which provides, in part,
“It is unlawful for a person to knowingly possess on or about his person or on his
land or in his own abode or fixed place of business any weapon prohibited under
Section 24-1 of this Act or any firearm or any firearm ammunition if the person has
been convicted of a felony under the laws of this State or any other jurisdiction.”
ILCS 5/24-1.1(a) (West 2022).
Defendant contends that his conduct of possessing firearm ammunition in his home was covered
by the plain text of the second amendment and section 24-1.1(a) regulates that conduct. Defendant
thus argues that, per the framework announced in [CITATION], section 24-1.1(a) is unconstitutional on
its face and as applied to him because the State cannot prove that the statute is consistent with the
United States’s historical tradition of firearm regulation. The State responds that defendant does
not meet the threshold for his conduct to be constitutionally protected because, as a felon,
defendant is not a part of the “People” contemplated by the second amendment. Thus, the State
argues, Bruen does not apply to defendant.
¶ 17 Initially, we note that we are unable to address defendant’s as-applied challenge,
which he raises for the first time on appeal, because there is not a sufficiently developed
evidentiary record upon which to analyze his argument. Because as-applied constitutional
challenges are, by definition, dependent on the specific facts and circumstances of the person
raising the challenge, it is paramount that the record be sufficiently developed in terms of those
facts and circumstances for purposes of appellate review. [CITATION].
Indeed, a court is incapable of making an as-applied determination of unconstitutionality when no
evidentiary hearing has occurred and no findings of fact have been made. [CITATION].
Absent an evidentiary record, any finding that a statute is unconstitutional as applied to the
challenging party is premature. [CITATION]. Because defendant did not raise this
issue in the trial court, no factual findings were made related to defendant’s prior conviction or
how it pertained to his present claim relating to Bruen. Accordingly, any finding that section 24-
1.1(a) is unconstitutional as applied to defendant would be premature.
¶ 18 As to defendant’s facial challenge, we find [CITATION], instructive. In [CITATION], the defendant argued that section 24-1.1(a) of the Code was
unconstitutional under the second amendment as applied to him, given the framework announced
in Bruen. [CITATION], ¶¶ 33, 37. The appellate court concluded that
defendant could not challenge the constitutionality of section 24-1.1(a), because, as a felon, “Bruen
just does not apply to him.” [CITATION], ¶ 37. The court explained that Bruen
“could not have been more clear that its newly announced test applied only to laws that attempted
to regulate the gun possession of ‘law-abiding citizens,’ and not felons like defendant.” [CITATION], ¶ 37 (quoting [CITATION], 597 U.S. at 71). The court noted that the phrase
“law-abiding” was used extensively throughout the majority opinion in [CITATION], ¶ 37. Additionally, the court highlighted that Justice Kavanaugh’s concurrence,
which was joined by Chief Justice Roberts, asserted that “ ‘ “[N]othing in our opinion should be
[SEGMENT 25]
taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ***.” ’ ”
[CITATION], ¶ 37 (quoting [CITATION], 597 U.S. at 81 (Kavanaugh, J., concurring,
joined by Roberts, C.J.), quoting [CITATION], 554 U.S. at 626-27). The court concluded that, in light of
[CITATION]’s emphasis that its new test applied only to laws seeking to regulate the possession of
firearms by “ ‘law-abiding citizens,’ ” the defendant was “simply outside the box drawn by
[CITATION], ¶ 37.
¶ 19 Defendant counters that, while the petitioners in [CITATION] were “law-abiding”
individuals, nothing in that case suggested that its test was limited to “law-abiding” citizens. He
further claims that [CITATION] improperly relied upon dicta in [CITATION] stating that felons are not
guaranteed the right to bear arms. These arguments are unpersuasive, as we find that [CITATION]
comports with second amendment jurisprudence. In [CITATION], the Supreme Court held that the second
amendment conferred an individual right to keep and bear arms. [CITATION], 554 U.S. at 595. In so
holding, the Court noted that the second amendment “elevates above all other interests the right of
law-abiding, responsible citizens to use arms in defense of hearth and home.” (Emphasis added.)
[CITATION], 554 U.S. at 635. In accordance with this pronouncement, the Court explained that “nothing
in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of
firearms by felons.” [CITATION], 554 U.S. at 595, 626. In [CITATION], which held that the second
amendment was “fully applicable to the States” ([CITATION], 561 U.S. at 750), Justice Alito
“repeat[ed] those assurances” that prohibitions on possession of firearms by felons were not to be
doubted. McDonald, [CITATION] (opinion of Alito, J., joined by Roberts, C.J., and Scalia and
Kennedy, JJ.). Bruen did nothing to contradict the Court’s prior determinations that the second
amendment protects the rights only of law-abiding citizens to bear arms and that states may
prohibit the possession of firearms by felons.
¶ 20 Indeed, this court reached the same conclusion as Baker in [CITATION], ¶ 16, an unpublished order. In [CITATION], the defendant, a felon, argued that
section 24-1.1 of the Code was unconstitutional on its face under the Bruen framework. [CITATION],
¶ 11. Relying on Baker, we similarly concluded that use of the
phrase “law-abiding” throughout Heller and Bruen supported the conclusion that the second
amendment does not encompass felons. [CITATION], ¶ 15 (“However, the
Court’s language in Bruen supports the validity of its dictum in Heller.”). Accordingly, we
determined that “the Bruen decision does not apply to felons” and concluded that the defendant
“failed to show section 24-1.1 is unconstitutional on its face under that decision.” [CITATION], ¶ 16.
¶ 21 Given the foregoing, we hold that Bruen simply does not apply to defendant. The
second and fourteenth amendments protect the right of “law-abiding citizens” to possess handguns.
Bruen, [CITATION]. Bruen’s historical-tradition test applies to regulations affecting law-
abiding citizens’ possession of firearms. See Bruen, [CITATION] (holding that New York’s
proper-cause requirement was unconstitutional where it prevented “law-abiding citizens with
ordinary self-defense needs from exercising their right to keep and bear arms”); [CITATION], ¶ 37 (concluding that Bruen applies only to law-abiding citizens); [CITATION], ¶ 16 (same). As a felon, defendant, by definition, is not a law-abiding
citizen. Thus, defendant cannot show that his conduct was presumptively protected by the second
====== Instruction ======
Remove **court ruling citations** from the above part of a court ruling and replace them with `[CITATION]` to ensure consistency in the text, except for the target court ruling citation 'people-v-gunn', which should be replaced with `[CITATION]`. amendment, and therefore, he does not fall within the scope of Bruen. As a result, defendant cannot
show that section 24-1.1(a) of the Code violates the second amendment on its face under the Bruen
framework. See [CITATION].
¶ 22 Accordingly, we reject defendant’s arguments that section 24-1.1(a) of the Code
violates the second amendment on its face and as applied to defendant.
¶ 23 B. Whether Defendant’s Conviction for UPWF Violates the Illinois Constitution
¶ 24 Defendant argues that, even if section 24-1.1 of the Code does not run afoul of the
second amendment, it violates article I, section 22, of the Illinois Constitution on its face because
our state constitution provides “greater protections” than the second amendment.
¶ 25 Article I, section 22, provides, “Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed.” Ill. Const. 1970, art. I, § 22. This
provision does not mirror the second amendment but “adds the words ‘[s]ubject only to the police
power,’ omits prefatory language concerning the importance of a militia, and substitutes ‘the
individual citizen’ for ‘the people.’ ” [CITATION].
¶ 26 Defendant contends that, even if he does not fall within the scope of “the People”
as delineated in the second amendment, the Illinois Constitution “allows him to take part in the
right to keep and bear arms as an individual citizen.” Defendant contends that this right is not
narrowed by the prefatory language, “Subject only to the police power,” because preventing felons
from possessing firearms would be an improper exercise of police power. See Ill. Const. 1970, art.
I, § 22.
¶ 27 “[T]he legislature enjoys wide latitude in prescribing criminal penalties under its
police power and has an obligation to protect its citizens from known criminals.” [CITATION].
====== End of Part ====== [CITATION], ¶ 17. In fact, Illinois courts have recognized that, in
McDonald, Justice Alito “noted that federal and state legislatures and local governments have
police powers to pass laws that promote the health, safety and general welfare of their citizens.”
[CITATION], ¶ 23 (citing McDonald, 561 U.S. at 786 (opinion of Alito,
J., joined by Roberts, C.J., and Scalia and Kennedy, JJ.)). Thus, even assuming defendant is an
“individual citizen” such that he falls under the scope of article I, section 22, contrary to
defendant’s argument, “the police power includes the power to regulate certain aspects of gun
possession and ownership.” [CITATION], ¶ 23. Such regulations include
the “longstanding prohibitions on the possession of firearms by felons.” [CITATION], 554 U.S. at 626.
¶ 28 We note that the argument defendant now raises has been repeatedly rejected by
this court. For example, in [CITATION], we highlighted the affirmations in McDonald and Heller that
prohibitions on the possession of firearms by felons would not be doubted. [CITATION], ¶ 18. We determined that, given those affirmations, section 24-1.1 of the Code
was a proper exercise of police power, and therefore, the defendant failed to show that the statute
violated the Illinois Constitution. [CITATION], ¶ 18. Relying on [CITATION],
we reached the same determination in [CITATION], ¶ 25. The
same result applies here.
¶ 29 We again conclude that section 24-1.1 of the Code is a proper exercise of police
power, and thus, defendant cannot show that this statute violates article 1, section 22, of the Illinois
Constitution.
¶ 30 C. Whether Defendant’s Conviction for AUUW Violates the Second Amendment
- 10 - ¶ 31 Next, defendant argues that, even if the UPWF statute is constitutional, we should
nevertheless reverse his conviction because his prior conviction of AUUW, which served as the
predicate offense for his UPWF conviction, violates the second amendment.
¶ 32 As is relevant to defendant, a person commits AUUW where he or she “[c]arries
on or about his or her person or in any vehicle or concealed on or about his or her person *** any
pistol, revolver, stun gun or taser or other firearm” and “the pistol, revolver, or handgun possessed
was uncased, loaded, and immediately accessible at the time of the offense and the person
possessing the pistol, revolver, or handgun has not been issued a currently valid license under the
Firearm Concealed Carry Act.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2022).
[SEGMENT 26]
¶ 33 In 2013, Illinois implemented the Firearm Concealed Carry Act (Concealed Carry
Act) to allow qualified individuals to obtain licenses to carry concealed handguns in public. 430
ILCS 66/1 et seq. (West 2022). To obtain a concealed carry license (CCL), an individual must not
(1) have been found guilty of a misdemeanor involving the use or threat of physical force or
violence to any person within five years preceding the date of the application to obtain a CCL,
(2) have two or more violations related to impaired driving within the same time period, (3) be the
subject of a pending warrant or prosecution that could result in disqualification to possess a
firearm, or (4) have been ordered to receive treatment for alcohol or drugs within the preceding
five years. 430 ILCS 66/25(3)-(5) (West 2022). Additionally, the individual must (1) be at least 21
years of age, (2) have completed firearms training, and (3) have a valid Firearm Owner’s
Identification Card (FOID card) and meet the requirements for the issuance of a FOID card. 430
ILCS 66/25(1), (2), (6) (West 2022). If these requirements are met, the Illinois State Police “shall”
issue to the applicant a CCL within 90 days. 430 ILCS 66/10(a), (e) (West 2022).
- 11 -
======= ¶ 34 An individual obtains a FOID card by meeting the requirements of the Firearm
Owners Identification Card Act (FOID Card Act). 430 ILCS 65/0.01 et seq. (West 2022). The
FOID Card Act requires a person seeking to acquire or possess a firearm to obtain a FOID card
from the Illinois State Police. 430 ILCS 65/2(a)(1) (West 2022). To do so, an applicant must,
inter alia, pay a $10 fee, submit proof of Illinois residence, establish that he or she is at least 21
years of age, and provide a photograph. 430 ILCS 65/4(a)(2)(i)-(i-5), 4(a)(2)(xiv), 4(a-20), 5(a)
(West 2022). The Illinois State Police then conducts a search of its criminal history records and
those of the Federal Bureau of Investigation and the Department of Human Services to obtain
information regarding felony convictions, mental health and developmental disabilities, or
hospitalizations that would disqualify the individual from obtaining a valid FOID card. 430 ILCS
65/3.1(b) (West 2022). If these requirements are met, the Illinois State Police “shall” issue to the
applicant a FOID card within 30 days. 430 ILCS 65/5(a) (West 2022).
¶ 35 The AUUW statute incorporates the requirements of the FOID Card Act and
Concealed Carry Act by criminalizing noncompliance. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5),
(a)(3)(C) (West 2022).
¶ 36 Defendant contends that his conviction for AUUW violates the second amendment
under the framework announced in [CITATION] because “criminalization of handgun possession in the
absence of a FOID card and CCL burdens the individual right [to bear arms] in a manner with no
historical analogue.” This argument is unpersuasive.
¶ 37 In [CITATION], the Supreme Court explicitly categorized Illinois as 1 of 43 “ ‘shall issue’
jurisdiction[s], where authorities must issue concealed-carry licenses whenever applicants satisfy
certain threshold requirements, without granting licensing officials discretion to deny licenses
based on a perceived lack of need or suitability.” [CITATION], 597 U.S. at 13 & n.1 (including 430 ILCS
- 12 - 66/10 (West 2020) in the list of concealed-carry licensing regimes). The Court noted that, while
there was no “historical tradition limiting public carry only to those law-abiding citizens who
demonstrate a special need for self-defense” ([CITATION]), “nothing in our analysis
should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing
regimes.” [CITATION]. The Court explained:
“Because these licensing regimes do not require applicants to show an atypical need
for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible
citizens’ from exercising their Second Amendment right to public carry. [CITATION].
Rather, it appears that these shall-issue regimes, which often require applicants to
undergo a background check or pass a firearms safety course, are designed to ensure
only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible
citizens.’ Ibid. And they likewise appear to contain only ‘narrow, objective, and
definite standards’ guiding licensing officials, [CITATION],
rather than requiring the ‘appraisal of facts, the exercise of judgment, and the formation
of an opinion,’ [CITATION]—features that typify proper-cause standards like New York’s.
That said, because any permitting scheme can be put toward abusive ends, we do not rule
out constitutional challenges to shall-issue regimes where, for example, lengthy wait times
in processing license applications or exorbitant fees deny ordinary citizens their right to
public carry.” [CITATION].
The Court further acknowledged that, “[t]hroughout modern Anglo-American history, the right to
keep and bear arms in public has traditionally been subject to well-defined restrictions governing
- 13 - the intent for which one could carry arms, the manner of carry, or the exceptional circumstances
under which one could not carry arms.” [CITATION]
¶ 38 Given these principles, the appellate court in [CITATION], rejected the defendant’s argument that the FOID Card Act and the Concealed
Carry Act violate the second amendment on their faces pursuant to [CITATION]. In [CITATION], the defendant
was convicted of AUUW for possessing a weapon without a valid FOID card or CCL. [CITATION]. He argued that his AUUW conviction should be reversed because the
FOID Card Act’s requirements that an applicant pay a fee and provide personal information were
“an impermissible barrier” to the exercise of second amendment rights and the FOID Card Act
was inconsistent with the nation’s historical tradition of firearm regulation. [CITATION]. Similarly, the defendant asserted that the Concealed Carry Act’s requirements
that an individual must have a valid FOID card, undergo a 16-hour firearms training course, and
adhere to a 90-day waiting period before a CCL was issued “do not comport with our nation’s
historic tradition of firearm regulation.” [CITATION].
¶ 39 Relying on [CITATION], the court disagreed, concluding that neither statutory scheme
violated the second amendment. [CITATION]. As to the FOID Card Act,
the court noted that [CITATION] “explicitly acknowledged that background checks, which are the
cornerstone of the FOID Card Act, are permissible.” [CITATION]. The
court determined that there was “no need for us to engage in a historical analysis of firearm
regulation when the Supreme Court has already done so and explicitly sanctioned the use of
background checks.” [CITATION]. Regarding the Concealed Carry Act,
the court emphasized that Illinois is a shall-issue jurisdiction, meaning that “the State does not
have any discretion to deny a CCL to an applicant who fulfills [the] objective criteria” for issuance
- 14 -
====== of a CCL. [CITATION], ¶ 22. The court thus concluded that, unlike the
licensing scheme at issue in Bruen, “the Illinois statute mandates issuance of FOID cards and CCLs
within the framework of what has always been historically acceptable in the United States.” [CITATION], ¶ 22. The court emphasized that the Concealed Carry Act sets forth
broadly applicable, well-defined requirements like background checks and the completion of a
firearms training course—both of which the Supreme Court explicitly sanctioned in Bruen and
which, if fulfilled, result in the issuance of a CCL. [CITATION], ¶ 29.
Accordingly, the court held that the FOID Card Act and the Concealed Carry Act “comport[ ] with
federal law and, consequently, the AUUW statute does as well.” [CITATION],
¶¶ 19, 30.
¶ 40 Indeed, this court reached a similar conclusion in an unpublished order, [CITATION]. In [CITATION], the defendant challenged his AUUW conviction for
possessing a firearm without a FOID Card on the grounds that the FOID card requirement found
in section 24-1.6(a)(3)(C) of the Code was facially unconstitutional under Bruen. [CITATION], ¶¶ 4, 10. We concluded, like [CITATION], that (1) Illinois employs a shall-issue
licensing regime, (2) Bruen expressly distinguished “shall-issue” licensing regimes from “may-
issue” schemes, and (3) Bruen explicitly found that “shall-issue licensing regimes may continue.”
[CITATION], ¶ 22. Accordingly, we declined to find the AUUW statute’s
[SEGMENT 27]
FOID card requirement unconstitutional. See [CITATION], ¶ 16 (“We
simply find the FOID card application process and the AUUW statute’s FOID card requirement
are distinguishable from the may-issue licensing regime challenged in Bruen.”).
¶ 41 Defendant argues that we should disregard [CITATION] because it cited pre-Bruen cases
for its alternate determination that there was a historical basis supporting Illinois’s licensing
- 15 - regime. See [CITATION], ¶¶ 18, 22 (“[e]ven if our FOID card requirement
was not distinguishable” from the licensing regime struck down in Bruen, “Illinois courts have
repeatedly performed historical analyses of subsection (a)(3)(C) and found it constitutional” (citing
[CITATION], ¶ 76-
81, and [CITATION], ¶¶ 31-32)). We decline to disregard [CITATION].
Our decision today rests on our determination, similarly reached by other Illinois courts, that
Illinois’s licensing regime is a “shall-issue” framework that was endorsed by Bruen, unlike the
“may-issue” regimes targeted in that case. Accordingly, we do not reach a historical analysis of
the AUUW statute, and therefore, we need not rely upon the historical analysis undertaken in
[CITATION].
¶ 42 Accordingly, we hold that defendant has failed to establish that subsections (a)(1)
and (a)(3)(A-5) of section 24-1.6 of the Code are facially unconstitutional under the second
amendment.
¶ 43 D. Whether Defendant’s Conviction for AUUW Violates the Illinois Constitution
¶ 44 Finally, defendant argues that his UPWF conviction should be reversed because his
prior conviction of AUUW, which served as the predicate offense for his UPWF conviction,
violates the Illinois Constitution.
¶ 45 Like his prior arguments pursuant to the Illinois Constitution, defendant contends
that he is an “individual citizen” under article I, section 22, of the Illinois Constitution and that
Illinois’s licensing regime is not a valid exercise of police power. We again reject these arguments.
¶ 46 Even assuming that defendant is an “individual citizen” for purposes of article I,
section 22, he provides no coherent argument as to why the AUUW’s incorporation of the
regulations set forth in the FOID Card Act and Concealed Carry Act would not fall under the
- 16 - legislature’s broad police power. There appears to be no dispute that the FOID Card Act and
Concealed Carry Act requirements incorporated by the AUUW statute constitute measures meant
to protect the health, safety, and welfare of Illinois citizens—nor could there be any such dispute.
See 430 ILCS 65/1 (West 2022) (asserting that requiring FOID cards promotes a system by which
law enforcement can identify individuals prohibited from acquiring or possessing firearms and
ammunition, which “promote[s] and protect[s] the health, safety and welfare of the public”); [CITATION]
(stating that Illinois has an “important interest in
promoting public safety by ensuring the ongoing eligibility of who carries a firearm in public” and
that the licensing and monitoring scheme of the Concealed Carry Act arose out of the “weighty
interest in preventing the public carrying of firearms by individuals with mental illness and felony
criminal records”). As previously noted, the “legislature enjoys wide latitude in prescribing
criminal penalties under its police power and has an obligation to protect its citizens from known
criminals.” [CITATION]
¶ 47 Even so, defendant responds that we cannot read section 22’s prefatory clause so
broadly as to limit the protections of the second amendment. To the contrary, the Supreme Court
gave reassurances that the right to keep and bear arms is “not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.” [CITATION] Because
“the police power includes the power to regulate certain aspects of gun possession and ownership,”
and because the licensing requirements incorporated by the AUUW statute promote the State’s
interest in public safety, we conclude that subsections (a)(1) and (a)(3)(A-5) of section 24-1.6 of
the Code are a proper exercise of the State’s police power. [CITATION]
Accordingly, we hold that the AUUW statute does not violate article I, section 22, of the
Illinois Constitution. [CITATION]
- 17 - ¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm defendant’s conviction and sentence.
¶ 50 Affirmed.
- 18 - [CITATION]
Decision Under Review: Appeal from the Circuit Court of Stephenson County, No. 22-CF-
; the Hon. Glenn R. Schorsch III, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Jessica L. Harris, of
for State Appellate Defender’s Office, of Springfield, for appellant.
Appellant:
Attorneys Carl H. Larson, State’s Attorney, of Freeport (Patrick Delfino,
for David J. Robinson, and Matthew S. Goldman, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
- 19 - ```
```
2024 IL App (1st) 230679-U
No. 1-23-0679
Order filed May 3, 2024
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
Respondent-Appellee, ) Circuit Court of Cook County.
)
v. ) No. 22 CR 08267
)
HERBERT PITTS ) Honorable Maria Kuriakos-Ciesil,
) Judge, Presiding.
Petitioner-Appellant. )
JUSTICE NAVARRO delivered the judgment of the court.
Presiding Justice Mitchell and Justice Mikva concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for aggravated unlawful use of a weapon is
affirmed over his contention that the subsection of the statute under
which he was convicted violates the second amendment of the
United States Constitution; affirmed.
¶2 On December 1, 2022, defendant, Herbert Pitts, pled guilty to aggravated unlawful use
of a weapon (AUUW) based on carrying a firearm in public without having been issued a currently
valid Firearm Owner’s Identification Card (720 ILCS 5/24-1.6(a)(1), (3)(C) (West 2022)).
Thereafter, on February 8, 2023, Pitts filed a petition for relief from judgment under section 2-
1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2022)), arguing that the
section of the AUUW statute under which he was convicted was facially unconstitutional. No. 1-23-0679
circuit court denied him relief because his petition was untimely. Pitts now appeals that order. For
the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 On December 1, 2022, in exchange for serving one year in prison, Pitts pled guilty to
one count of AUUW, in that he carried a firearm in public without having been issued a currently
valid Firearm Owner’s Identification Card (FOID card) (720 ILCS 5/24-1.6(a)(1), (3)(C) (West
2022)). As for the factual basis for the plea, the parties stipulated as follows. On January 3, 2022,
Chicago police officers observed Pitts drinking alcohol on a public way, after which the officers
asked him if he had any weapons on him. Pitts told the officers that he did not have a weapon on
him. The officers conducted a protective pat down of his closed fanny pack and recovered a loaded
nine-millimeter automatic handgun from him. Pitts did not possess a valid FOID card. The court
found that there was a factual basis for the plea and sentenced Pitts to one year in prison.
¶5 On February 8, 2023, Pitts filed a pro se petition for relief from judgment under section
2-1401 of the Code, in which he argued that pursuant to Illinois Supreme Court cases, [CITATION],
and [CITATION], the section of the AUUW statute under which he was convicted was facially
unconstitutional and in violation of the second amendment of the United States Constitution (U.S.
Const., amend. II). He argued that his conviction for AUUW was void ab initio, as it was based
on an unconstitutional statute, and he requested the court vacate his conviction. We note that Pitts
was convicted under section 24-1.6(a)(1), (3)(C) of the AUUW statute, and in Pitts’ petition, he
cited a different section of the AUUW statute under which he was convicted.
No. 1-23-0679
¶6 At the hearing on Pitts’ petition, the court characterized his pleading as a “motion to vacate plea” and denied his motion because it was filed on February 28, 2023, which was more than 30 days after he entered his guilty plea on December 1, 2022.
[SEGMENT 28]
¶7 II. ANALYSIS
¶8 Initially, Pitts contends, and the State agrees, that the circuit court erred when it incorrectly characterized his section 2-1401 petition as a motion to withdraw his guilty plea and denied it as untimely, as it was filed more than 30 days after he entered the guilty plea. See Ill. S. Ct. R. 605(b)(2) (eff. Oct. 1, 2002). We agree with the parties.
¶9 Pitts’ petition specifically requested relief under section 2-1401 of the Code and alleged that his conviction for AUUW was void because the subsection under which he was convicted was facially unconstitutional. “[A] motion to vacate a void judgment is properly raised in a petition for relief from judgment under section 2-1401.” [CITATION] Further, a defendant may raise a challenge to a final judgment based on a facially unconstitutional statute at any time ([CITATION]), and section 2-1401 authorizes a circuit court to “vacate or modify a final order or judgment older than 30 days.” [CITATION] Accordingly, the court erred when it characterized Pitts’ section 2-1401 petition as a motion to vacate his guilty plea and then denied it as untimely. However, we may construe the circuit court’s denial of Pitts’ pleading as a dismissal of a section 2-1401 petition. See [CITATION] Further, we review the constitutionality of a statute de novo ([CITATION]) and, under this standard, we “may affirm on any basis found in the record.” [CITATION]
No. 1-23-0679
¶ 10 We also note that the State argues that Pitts waived any constitutional challenge he may
have based on subsequent changes in the law because he entered into a knowing and voluntary
guilty plea. However, Pitts is arguing that the statute under which he was convicted was facially
unconstitutional, and our supreme court has stated that, “a guilty plea does not preclude a defendant
from arguing on appeal that he was sentenced under a statute that was facially unconstitutional and
void ab initio.” [CITATION]. Further, “[d]efendants
convicted under a facially unconstitutional statute may challenge the conviction at any time, even
after a guilty plea, because the state or government had no power to impose the conviction to begin
with.” [CITATION]. Accordingly, by entering into a guilty plea, Pitts did not
waive his challenge that the AUUW statute under which he was convicted and sentenced was
facially unconstitutional.
¶ 11 We now turn to Pitts’ argument that the section in the AUUW statute under which he
was convicted was facially unconstitutional in violation of the second amendment to the United
States Constitution (U.S. Const., amend II). He contends that his conviction under section 24-
1.6(a)(1), (3)(C) of the AUUW statute violates his second amendment right to carry a ready-to-use
handgun for self-defense outside the home. He asserts that the requirement in the AUUW statute
that a person be issued a FOID Card in order to lawfully possess a gun does not comply with the
test set forth by the United States Supreme Court in New York State Rifle & Pistol Association,
Inc., v. Bruen, 597 U.S. 1 (2022), because, under that test, the firearm regulation is inconsistent
with our nation’s historical regulation of firearms.
¶ 12 If a judgment is based on a statute that is facially unconstitutional, it is void ab initio
[CITATION], which “means that the statute was constitutionally infirm from
the moment of its enactment and, therefore, unenforceable.” [CITATION]. “A
No. 1-23-0679
facial challenge to the constitutionality of a statute is the most difficult challenge to mount,” as
“[a] statute is facially unconstitutional only if there are no circumstances in which the statute could
be validly applied.” [CITATION]. Further, “we presume statutes are
constitutional, and ‘we have the duty to construe statutes so as to uphold their constitutionality if
there is any reasonable way to do so.’ ” [CITATION] (quoting [CITATION]). “The burden on the challenger is ‘particularly heavy when *** a facial
constitutional challenge is presented.’ ” Id. (quoting [CITATION]).
As previously noted, we review a constitutional challenge to a statute de novo, as it presents a
question of law. Id.
¶ 13 Under the FOID Card Act, a person must obtain a FOID card before legally a
possessing a firearm. Id. ¶¶ 9, 15 (citing 430 ILCS 65/2(a) (West 2020)). Pitts was convicted under
the section of the AUUW statute that penalizes a person’s noncompliance with the FOID Card
Act. See id. The AUUW statute under which Pitts was convicted provides, in relevant part, as
follows:
“(a) A person commits the offense of aggravated unlawful use of a weapon when he or
she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his
or her person except when on his or her land or in his or her abode, legal dwelling, or fixed
place of business, or on the land or in the legal dwelling of another person as an invitee
with that person’s permission, any pistol, revolver, stun gun or taser or other firearm; ***
*** and
(3) One of the following factors is present:
No. 1-23-0679
***
(C) the person possessing the firearm has not been issued a currently valid Firearm
Owner’s Identification Card[.]” 720 ILCS 5/24-1.6(a)(1), (3)(C) (West 2022).
¶ 14 The FOID Card Act provides that, “[n]o person may acquire or possess any firearm
*** without having in his or her possession a [FOID] Card previously issued in his or her name
by the Illinois State Police under the provisions of this Act.” 430 ILCS 65/2(a)(1) (West 2022). To
apply for a FOID card, a person, who is over the age of 21, must submit an application to the
Illinois State Police and provide evidence that they are, among other things, over the age of 21,
have not been convicted of a felony, are not addicted to narcotics, and have not been a patient in a
mental health facility within the past 5 years. Id. § 4(a)(1), (2); see [CITATION], ¶ 14 (discussing FOID Card Act); see also Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1,
2023) (unpublished Rule 23 orders filed on, or after, January 1, 2021, “may be cited for persuasive
purposes”). Further, upon request, an applicant must sign a release form that allows disclosure to
the Illinois State Police of “limited mental health institution admission information ***
concerning the applicant for the sole purpose of determining whether the applicant is or was a
patient in a mental health institution and disqualified because of that status from receiving a
[FOID] Card.” Id. § 4(a)(3). The applicant must also submit a photograph and provide proof of
residence in Illinois. Id. § 4(a)(a-20). If an applicant meets the requirements set forth in the statute,
the applicant “shall be entitled to a [FOID] Card upon the payment of a $10 fee and applicable
processing fees” and the Illinois State Police shall issue the card within 30 days from the date it
received the application. Id. § 5(a); [CITATION], ¶ 16.
¶ 15 The second amendment of the United States Constitution states: “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
====== End of Document ====== No. 1-23-0679
Arms, shall not be infringed.” U.S. Const., amend II. The second amendment right was made “fully
applicable to the States” through the fourteenth amendment of the United States Constitution (U.S.
Const., amend XIV). [CITATION]
¶ 16 In [CITATION] and [CITATION], the United States Supreme Court held that the “Second and
Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.” [CITATION]. Most recently, in [CITATION], the United States Supreme Court stated that, consistent
with [CITATION] and [CITATION], the second and fourteenth amendments “protect an individual’s right
to carry a handgun for self-defense outside the home.” Id. at 8-10. In [CITATION], the court set forth a
new standard when analyzing second amendment challenges to firearm regulations. Id. at 24; see
[CITATION]. The Court explained that, “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects
that conduct.” [CITATION]. If the second amendment covers the conduct, “[t]he
government must then justify its regulation by demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” Id.; see [CITATION]. In analyzing the historical tradition of a firearm regulation, the “historical inquiry” a court must
[SEGMENT 29]
conduct involves “reasoning by analogy.” [CITATION]. The Court explained that
“determining whether a historical regulation is a proper analogue for a distinctly modern firearm
regulation requires a determination of whether the two regulations are ‘relevantly similar.’ ” Id. at
28-29 (quoting C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)).
¶ 17 In [CITATION], the petitioners challenged a licensing law in New York that required an
individual to obtain an unrestricted license to carry a firearm outside of the home for self-defense.
[CITATION]. To obtain a license, an applicant
No. 1-23-0679
had to prove “proper cause,” which, as interpreted by the New York courts, required demonstrating
“ ‘a special need for self-protection distinguishable from that of the general community.’ ” Id. at
12. The “special need” standard generally required evidence “ ‘of particular threats, attacks or
other extraordinary danger to personal safety.’ ” [CITATION] at 12-13 (quoting [CITATION]).
After applying the law under the new test, the Court concluded
that the proper cause requirement in New York’s licensing regime violated the fourteenth
amendment because it “prevents law-abiding citizens with ordinary self-defense needs from
exercising their right to keep and bear arms.” Id. at 71.
¶ 18 In its analysis, the Court defined New York’s law as a “may-issue” licensing law under
which authorities had discretion to deny a license “even when the applicant satisfies the statutory
criteria, usually because the applicant has not demonstrated cause or suitability for the relevant
license.” Id. at 14. The Court distinguished the “may-issue” laws from the “shall-issue” laws, under
which licensing officials do not have discretion and must issue a license whenever an applicant
meets the threshold, objective requirements. Id. at 13, 38 n. 9; see [CITATION], ¶ 22. The Court
stated in a footnote that “nothing in our analysis should be interpreted to suggest the unconstitutionality
of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is
sufficient to obtain a [permit].’ ” Id. at 38 n. 9 (quoting [CITATION]) (Hardiman, J., dissenting)).
It stated that “[b]ecause these licensing regimes do not require applicants to show an atypical need for
armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising
their Second Amendment right to public carry.” Id. (quoting [CITATION]). The court noted that the
shall-issue regimes “which often require applicants to undergo a background check or pass a
No. 1-23-0679
firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are,
in fact, ‘law-abiding, responsible citizens.’ ” Id.
¶ 19 In Justice Kavanaugh’s concurring opinion, he further explained that the Court’s
decision did not “affect the existing licensing regimes—known as ‘shall issue’ regimes—that are
employed in 43 states” and concluded that the states “that employ objective shall-issue licensing
regimes for carrying handguns for self-defense may continue to do so.” Id. at 79-80; see
[CITATION], ¶ 23. Justice Kavanaugh noted that shall-issue licensing
regimes “may require a license applicant to undergo fingerprinting, a background check, a mental
health records check, and training in firearms handling and in laws regarding the use of force,
among other possible requirements.” [CITATION] at 80. He explained that shall-issue regimes
“do not grant open-ended discretion to licensing officials and do not require a showing of some
special need apart from self-defense.” Id.
¶ 20 Turning back to the instant case, Pitts argues that under the new analysis set forth in
[CITATION], the requirement in the AUUW statute that he be issued a FOID card in order to exercise his
right to carry a firearm outside the home violates the second amendment because it is inconsistent
with the nation’s historical tradition of firearm regulation. He asserts there are no historical
analogues for the AUUW statute’s requirement that individuals be issued a FOID card before they
can exercise their right to carry a firearm.
¶ 21 In [CITATION], this court has previously
concluded that the FOID Card Act complies with federal law. In [CITATION], the defendant was
convicted of AUUW in that, as relevant here, he carried a loaded firearm outside the home without
possessing a valid FOID card. Id. ¶¶ 5, 18. Relying on [CITATION], the defendant argued that the FOID
Card Act was facially unconstitutional and violated the right to bear arms, as it was inconsistent
No. 1-23-0679
with the nation’s historical tradition of firearm regulation. Id. ¶¶ 7, 17. However, this court
disagreed with the defendant’s argument. Id. ¶ 17. In doing so, this court found that Bruen
“explicitly acknowledged that background checks, which are the cornerstone of the FOID Card
Act, are permissible” and that there was “no need for us to engage in historical analysis of firearm
regulation when the Supreme Court has already done so and explicitly sanctioned the use of
background checks.” Id. ¶ 19 (citing [CITATION]). This court further explained that
Illinois is a shall-issue state and concluded:
“In Bruen, the United States Supreme Court had the opportunity to denounce states’
gun regulation schemes outright. However, it did not do so. Rather, it explicitly
acknowledged that shall-issue regimes, which are aimed at ensuring that only law-abiding
citizens are allowed to possess and carry firearms, do not prevent citizens from exercising
their second amendment rights. Illinois is a shall-issue state with clearly defined, objective
criteria regarding firearm possession and carry.” (Emphasis in original.) Id. ¶ 32.
This court also explained that unlike New York’s law, Illinois “does not have discretion to deny
an applicant based on requirements or factors not explicitly set forth in the statute.” Id. ¶ 16.
¶ 22 Here, we follow [CITATION] and conclude that the section in the AUUW statute under which
Pitts was convicted is not facially unconstitutional and [CITATION] does not provide a basis to invalidate
it. See id.; [CITATION] ¶¶ 11, 14-27 (following [CITATION] and concluding
that [CITATION] provided no basis to declare unconstitutional the AUUW statute that required the
defendant to obtain a FOID Card and concealed carry license before possessing a firearm in
public). As previously noted, under the FOID Card Act, the Illinois State Police “shall issue” a
license if the applicant meets the objective criteria. [CITATION] ¶ 25
(explaining that “the Illinois State Police ‘shall issue’ a license to any applicant who meets the
====== End of Ruling ====== No. 1-23-0679
well-defined, objective criteria contained therein.”); [CITATION],
¶ 61 (“Illinois is what Bruen calls a ‘shall-issue’ state because the Illinois State Police shall issue
a FOID card and [concealed carry license] to any applicant who meets the respective statutory
criteria.”). And thus, unlike New York’s “may-issue” licensing regime found unconstitutional in
Bruen, Illinois is a shall-issue state, which the Court did not invalidate in Bruen. [CITATION], ¶ 25 (“Illinois employs the kind of shall-issue regime endorsed by the
Bruen Court.”).
¶ 23 Pitts also contends that section 24-1.6(a)(1), (3)(C) of the AUUW statute violates the
second amendment because it violates an individual’s second amendment right to carry a ready-
to-use handgun for self-defense outside the home. However, Pitts was not convicted of AUUW
because he carried a ready-to-use handgun for self-defense outside the home. Rather, he was
convicted under subsection (a)(1), (3)(C) in that he carried a firearm in public without having been
issued a currently valid FOID card.
¶ 24 Pitts argues that section 24-1.6(a)(1), (3)(A) of the AUUW statute amounts to a flat ban
on carrying ready-to-use handguns for self-defense outside the home. However, Pitts was not
convicted under this section of the AUUW statute. As previously discussed, he was convicted
under section 24-1.6(a)(1), (3)(C), in that he carried a firearm in public without a valid FOID card.
Thus, we will not address Pitts’ argument. See [CITATION], ¶ 13 (“[A] court
will not consider a constitutional challenge to a criminal statutory provision under which a
defendant has not been charged.”). Lastly, Pitts challenges his conviction citing subsection (a)(c)
of the AUUW statute. This subsection provides exceptions that do not apply and are not relevant to
his conviction under subsection 24-1.6(a)(1), (3)(C).
¶ 25 III. CONCLUSION
No. 1-23-0679
¶ 26 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 27 Affirmed.
[SEGMENT 30]
2024 IL App (1st) 221508-U
SECOND DIVISION
March 29, 2024
No. 1-22-1508
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 2684
)
MICHAEL RICHARDSON, ) Honorable
) Alfredo Maldonado,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s judgment convicting defendant of aggravated unlawful
use of a weapon (AUUW) after a guilty plea; the Illinois AUUW statute does not violate
the second amendment to the United States Constitution under the test the United States
Supreme Court articulated in [CITATION].
¶2 Following a negotiated guilty plea, the circuit court of Cook County convicted defendant,
Michael Richardson, on one count of aggravated unlawful use of a weapon (AUUW) in violation
of section 24-1.6(a)(1), (a)(3)(A-5) of the Criminal Code of 2012 (720 ILCS 5/24-1.6(a)(1),
(a)(3)(A-5) (West 2020)), in that he possessed in a vehicle an uncased, loaded, and immediately
accessible handgun and he had not been issued a currently valid license under the Firearm
Concealed Carry Act (CCL) (430 ILCS 66/1 to 66/99 (West 2020)). Defendant did not file a
motion to withdraw his guilty plea. Defendant filed a timely notice of appeal. On appeal, he 1-22-1508
argues that the AUUW statute under which he was convicted was facially unconstitutional. For
the following reasons, we affirm.
¶3 BACKGROUND
¶4 Given the substance of the appeal, a lengthy discussion of the facts of the case is not
needed. Defendant, Michael Richardson, was stopped by police while driving his car and
subjected to a pat-down search. The search revealed that defendant was carrying a handgun in his
waistband. Police determined defendant did not have a valid Firearm Owner’s Identification
(FOID) card or a Conceal Carry License at the time. Following negotiations with the State and
the trial court, defendant pleaded guilty to AUUW based on carrying an uncased, loaded, and
immediately accessible gun on his person without a valid Conceal Carry License, in exchange
for a sentence of one year of imprisonment. Defendant did not file a motion to withdraw his
guilty plea. This appeal followed.
¶5 ANALYSIS
¶6 On appeal defendant argues the AUUW statute under which he was convicted is facially
unconstitutional. “[A] facial challenge requires a showing that the statute is unconstitutional
under any set of facts, i.e., the specific facts related to the challenging party are irrelevant.”
[CITATION]. The sole issue before us is defendant’s facial challenge to the AUUW stature, which is a question of statutory interpretation,
and the interpretation of a statute presents a question of law that we review de novo. [CITATION].
¶7 The first issue this court faced was whether we have jurisdiction to hear this appeal where
defendant did not file a motion to withdraw his guilty plea. [CITATION], ¶ 8 (“[g]enerally, [t]o preserve an issue for appellate review, a defendant must both
1-22-1508
object at trial and present the issue in a written posttrial motion.”) (Internal quotation marks
omitted.) However, our supreme court has held that “a guilty plea does not preclude a defendant
from arguing on appeal that he was sentenced under a statute that was facially unconstitutional
and void ab initio.” [CITATION] See also [CITATION], ¶ 8 (an exception to the rule requiring presentment of an issue in a posttrial
motion to preserve the issue for review “exists for constitutional challenges: a challenge to the
constitutionality of a statute may be raised at any time”).
¶8 The sole issue defendant presents for review by this court is whether the AUUW statute
is facially unconstitutional when “it imposes an onerous dual-licensing regime, requiring
[defendants] to first be issued a Firearm Owner’s Identification (FOID) card before obtaining a
Concealed Carry License to carry a concealed firearm” because doing so “is inconsistent with
this nation’s historical tradition of firearm regulation.” In this case, defendant raises a challenge
to the constitutionality of a statute. Therefore, we find pursuant to [CITATION] that we have
jurisdiction of this appeal. [CITATION] See also [CITATION], ¶ 35 (discussing argument that “this court has exempted the application of Rule 604(d)
to negotiated pleas in two narrow instances: (1) where a defendant challenged his sentence as not
authorized by statute ([CITATION]); and (2) where a defendant challenged the statute under which
he was sentenced as facially unconstitutional and void ab initio [CITATION]”), and [CITATION], ¶ 8 (“a challenge to the constitutionality of a statute may be raised at any
time”). We also find that defendant has standing to raise this challenge. [CITATION] Moreover, “[t]he constitutionality of a statute is reviewed de novo.” [CITATION]
1-22-1508
¶9 Turning to the merits, defendant argues the AUUW statute is facially unconstitutional
under the second amendment to the United States constitution pursuant to the analysis
announced in [CITATION]. Pursuant to
[CITATION], the court must first determine whether the plain text of the second amendment covers the
conduct in the challenged regulation and if it does, then the regulated conduct is presumptively
protected by the second amendment and the State has the burden to justify its regulation of that
conduct by demonstrating that doing so is consistent with the nation’s historical tradition of
firearm regulation. [CITATION]. “To carry this burden, the
government must point to ‘historical precedent from before, during, and even after the founding
[that] evinces a comparable tradition of regulation.’ ” Id. ¶ 70. “[I]t is not necessary to identify a
‘historical twin’; rather a ‘well-established and representative [historical] analogue will do.’ ”
(Emphasis in original.) Id. ¶ 71.
¶ 10 Defendant argues the AUUW statute is unconstitutional on its face—meaning “the statute
is unconstitutional under any set of facts” ([CITATION])
because the conduct of possessing a handgun in a conveyance outside the home is covered by the
plain text of the second amendment and imposing a dual licensing regime on such possession is
not consistent with this nation’s historical tradition of firearm regulation. Defendant argues that
requiring a person to first obtain a FOID Card and a license under the CCL “imposes an onerous
burden” on the right to bear arms that is “not consistent with this Nation’s historical tradition of
firearm regulation.”
¶ 11 Defendant claims that the historical evidence shows that criminalization of handgun
possession in the absence of a FOID card and a license under the CCL “burdens the individual
right in a manner with no historical analogue.” Defendant argues that three colonial-era
1-22-1508
restrictions regulating public carry of firearms identified in [CITATION] are not a historical analogue
for the AUUW statute because they contained an additional intent element not present in the
AUUW law and “surety laws adopted in the mid-19th century do not establish a historical
tradition comparable to the AUUW law because those laws were not punitive and only required
the burdened individual to pay a bond; nor do “short-lived laws requiring freedmen *** to obtain
licenses” provide suitable historical comparisons. As such, defendant argues the State “cannot
affirmatively prove this nation has a historical tradition of imposing felony punishment on an
individual who exercises the constitutional right to keep and bear arms without having been
issued two separate licenses.”
¶ 12 Defendant also argues the delay in issuing licenses—that is, the time given to the State to
issue the license after a person applies—has no historical analogue. Defendant argues the need
for self-defense in a person’s conveyance is not less than their need for self-defense in the home
but the AUUW statute only criminalizes possession in a vehicle and explicitly excludes the
home, therefore the AUUW statute does not pass the [CITATION] test.
¶ 13 The second amendment protects carrying handguns publicly for self-defense. [CITATION]. The issue in this case is whether the AUUW statute attempts to regulate carrying
handguns publicly in a manner that is not consistent with this nation’s historical traditions of
firearm regulation. We find the issue is not whether the second amendment protects carrying a
gun without a license but is whether the licensing requirement—the right to bear arms publicly
being presumed—in consistent with this nation’s history of regulating that right. Although
“[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the
[SEGMENT 31]
right to keep and bear arms,” ([CITATION]), “[t]hroughout modern Anglo-American
history, the right to keep and bear arms in public has traditionally been subject to well-defined
1-22-1508
restrictions governing the intent for which one could carry arms, the manner of carry, or the
exceptional circumstances under which one could not carry arms” ([CITATION], 597 U.S. at 38).
Defendant’s argument that the AUUW statute is unconstitutional because there is no difference
between the two fails.
¶ 14 As to the AUUW regulation on carrying firearms publicly and whether it is inconsistent
with this nation’s traditions of firearm regulation we note that this court has previously stated
that argument “is exactly the same argument we rejected in [CITATION], ¶ 24. We have
previously continued to follow Gunn, and we do so now.
¶ 15 In [CITATION], this court upheld Illinois’ licensing scheme against a challenge under [CITATION].
The Gunn court found that Illinois is a shall-issue jurisdiction under both the FOID Card Act and
the CCL. [CITATION], ¶ 22. The court found that [CITATION] did not suggest the
unconstitutionality of shall-issue licensing regimes, although it did not rule out challenges to
shall-issue regimes where, for example, “lengthy wait times in processing applications or
exorbitant fees deny ordinary citizens their right to public carry” ([CITATION], ¶ 23 (citing [CITATION], 597
U.S. at 37-38)), neither of which defendant argues on appeal. This court found that Illinois uses a
“shall-issue licensing scheme,” that such regimes “do not prevent citizens from exercising their
second amendment rights,” and there is “no reason to believe that the Supreme Court intended to
invalidate the type of firearm regulation employed by our state.” [CITATION], ¶ 32. This court held:
“In sum, consistent with the Supreme Court’s guidance quoted above, the
Carry Act sets forth broadly applicable, well-defined requirements, which, if
fulfilled, result in the issuance of a [concealed carry license]. These include
1-22-1508
background checks and completion of a firearms training course, both of which
the Supreme Court explicitly sanctioned in [CITATION]. None of the requirements
compel applicants to demonstrate a special need to carry firearms for self-defense,
nor are these requirements subject to the State’s discretion. Again, Illinois is a
shall-issue jurisdiction. Unlike the New York regulation that granted broad
discretion to the state in deciding whether an applicant has demonstrated a special
need to carry, Illinois’s statute does not do that. Simply put, the Illinois scheme
aims to ensure that only law-abiding citizens are allowed to carry firearms.” Id. ¶
.
¶ 16 This court has held the AUUW statute comports with the second amendment. Consistent
with [CITATION], we so hold again today. Defendant’s argument the AUUW statute is unconstitutional
on its face because its regulations are too onerous fails where the United States Supreme Court
has specifically endorsed such regulations. See [CITATION]. (We reject out of
hand defendant’s argument that footnote 9 in [CITATION] is mere dicta that should be afforded little
weight.)
¶ 17 CONCLUSION
¶ 18 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 19 Affirmed.
2024 IL App (1st) 220455
No. 1-22-0455
Opinion filed March 27, 2024
Third Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 19 CR 11210
)
ASHONTIS HATCHER, ) Honorable
) John T. Gallagher,
Defendant-Appellant. ) Judge, presiding.
JUSTICE VAN TINE delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice D.B. Walker concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Ashontis Hatcher was found guilty of four counts of
aggravated unlawful use of a weapon (AUUW) and sentenced to one year in prison. On appeal,
defendant contends that (1) the trial court should have granted his motion to quash his arrest and
suppress evidence, (2) his waiver of his right to a jury trial was invalid, (3) the subsections of the
AUUW statute under which he was convicted violate the second amendment to the United States
Constitution, and (4) if we affirm his AUUW convictions, we should vacate all but one pursuant
to the one-act, one-crime rule. For the following reasons, we affirm the denial of defendant’s No. 1-22-0455
motion to quash his arrest and suppress evidence, the trial court’s acceptance of his jury waiver,
and the facial constitutionality of the subsections of the AUUW statute under which he was
convicted. However, we agree that all but one of defendant’s convictions should be vacated
pursuant to the one-act, one-crime rule, and we remand to the trial court to determine which
conviction should stand and which should be vacated.
¶2 I. BACKGROUND
¶3 The State charged defendant with and proceeded to trial on four counts of AUUW arising
out of his possession of a firearm on July 12, 2019. Count I alleged that defendant knowingly
carried an uncased, loaded, and immediately accessible firearm without a concealed carry license
(CCL) or Firearm Owner’s Identification (FOID) card ([CITATION]). Count II alleged that defendant knowingly carried an
uncased, loaded, and immediately accessible firearm without a CCL ([CITATION]). Count III alleged that defendant knowingly carried a firearm without a FOID card ([CITATION]). Count IV alleged that defendant knowingly carried a firearm when he was under 21 years of age ([CITATION]).
¶4 A. Motion to Suppress
¶5 Defendant filed a pretrial motion to quash his arrest and suppress certain evidence. His
motion alleged that he was arrested by Orland Park police at approximately 7:50 p.m. on July 12,
2019. Defendant was a passenger in a vehicle when he was arrested. Police recovered a firearm
and “other identifying items” from a bag near defendant’s seat in the rear passenger compartment.
Defendant’s motion argued that the arresting officers did not have an arrest warrant for him, a
search warrant for his property, or probable cause to justify his warrantless arrest.
====== No. 1-22-0455
¶6 At the hearing on defendant’s motion to suppress, Orland Park Police Officer David
Staszak testified that he and his partner, Officer Chris Losurdo, were on duty in plain clothes and
driving an unmarked police vehicle on the evening of July 12, 2019. 1 Tinley Park Police Officer
Russ Borrowdale informed Staszak that he saw a Nissan stop at a bank in Tinley Park. Borrowdale
saw the front passenger, who was later identified as Andre Culpepper, exit the Nissan, look at an
automatic teller machine (ATM), and return to the vehicle, which drove off. Borrowdale followed
the Nissan to another bank in Orland Park, and Staszak and Losurdo arrived on scene. The officers
monitored the bank’s entrance and exit. Borrowdale told Staszak that he saw Culpepper enter the
bank’s vestibule, use the ATM, and return to the Nissan. Staszak suspected that Culpepper was
“card tracking,” which is using someone else’s debit card to make deposits into a bank account
and then withdrawing the funds before the bank discovers that the transactions are fraudulent.
Staszak had investigated card tracking previously at that particular Orland Park bank.
¶7 After the Nissan left the second bank, Staszak saw it change lanes without using a turn
signal, so he conducted a traffic stop. Staszak, Losurdo, and Borrowdale approached the Nissan.
Kendrick Morse was driving the Nissan, Culpepper was in the front passenger seat, and defendant,
whom Staszak identified in court, was in the rear passenger seat. 2 Culpepper initially refused
multiple orders to exit the vehicle, but when he did get out, the officers arrested him and recovered
an ATM receipt from his hand. The receipt matched a credit or debit card belonging to someone
named Tyler Hickman, who was not in the vehicle, and it indicated that Culpepper had used
The record uses both “officer” and “detective” as titles for the Orland Park Police personnel. For
simplicity, we will refer to both as officers.
The record spells the driver’s last name as both “Morse” and “Morris.” We will use “Morse”
because that is how Staszak spelled it at the motion to suppress hearing.
No. 1-22-0455
Hickman’s card in the ATM transaction at the bank in Orland Park. The officers recovered
Hickman’s card from the front passenger door handle.
¶8 The officers ordered Morse and defendant to exit the Nissan, which they did. Defendant
[SEGMENT 32]
was not handcuffed, but he was not free to leave. The officers searched the vehicle “for further
evidence of possible bank fraud crimes.” They recovered a debit card belonging to a Kenesha
Allen from the center console and a check for $2007 from the glove box. Orland Park Police
Officer Casey Wall, who arrived during the traffic stop, saw an open backpack on the floorboard
of the rear passenger area where defendant’s feet had been. He could see a handgun magazine
protruding from the backpack’s open zipper. From the backpack, the officers recovered a handgun,
a debit or credit card belonging to defendant, and several credit cards belonging to people who
were not in the Nissan.
¶9 Defendant argued that there was no indication he was involved in criminal activity when
police detained him and searched his backpack. He was not the person police saw approach ATMs
at the two banks, and he complied with the officers’ orders, defendant maintained. The State argued
that the officers had reasonable suspicion to stop the Nissan and probable cause to search it and
arrest its occupants based on suspicion of bank fraud, which was corroborated by the officers’
discovery of bank cards and a check in the vehicle.
¶ 10 The trial court denied defendant’s motion to suppress. The court concluded that the officers
were “conducting a reasonable investigation into a suspicion” of bank fraud, which they
substantiated when they found Hickman’s card near the vehicle’s front passenger door handle. In
addition, the court found that the officers saw the firearm’s magazine “within open sight” because
the backpack was open.
====== End of Court Ruling ====== No. 1-22-0455
¶ 11 B. Trial
¶ 12 Prior to trial, defendant signed a jury waiver form, which stated “I, the undersigned, do
hereby waive jury trial and submit the above entitled cause to the Court for hearing.” In response
to questioning by the trial court, defendant confirmed that he signed the jury waiver form and that
he was “asking for a bench trial, not a jury trial.”
¶ 13 At trial, Losurdo testified consistently with Staszak’s testimony at the motion to suppress
hearing. Losurdo added that Borrowdale initially contacted him and Staszak by phone.
¶ 14 Wall testified that he was on duty in plain clothes on July 12, 2019. Wall learned that
Staszak and Losurdo had conducted a traffic stop on the 15400 block of LaGrange Road and drove
to that location. Wall spoke with defendant, whom he identified in court, while defendant was in
the rear passenger seat of the Nissan. After defendant complied with orders to exit the Nissan,
Wall searched the rear passenger compartment and found a small red backpack on the floorboard.
He saw the magazine of a firearm protruding from an open zipper. Wall searched the backpack
and recovered a loaded firearm and several debit and credit cards, one of which had defendant’s
name on it. The other cards belonged to individuals who were not in the Nissan.
¶ 15 Wall identified photographs of the firearm, the backpack, and defendant’s debit card, which
the State moved into evidence. The first photograph depicts a Smith & Wesson handgun. The
second photograph depicts a red backpack surrounded by a collection of personal items, including
four bank receipts and four credit or debit cards. The third photograph depicts the back of a bank
card belonging to defendant.
¶ 16 The parties stipulated that defendant was born on August 26, 1998, and that he did not
possess a valid FOID card or CCL on July 12, 2019.
No. 1-22-0455
¶ 17 The trial court found defendant guilty on all counts. The court explained that defendant’s
debit card being inside the backpack supported his constructive possession of the backpack and
the firearm inside it.
¶ 18 Defendant filed a motion for a new trial, which argued, inter alia, that the trial court erred
in denying his motion to suppress. Defendant’s posttrial motion did not address his waiver of his
right to a jury trial, the constitutionality of the AUUW charges, or the one-act, one-crime rule.
¶ 19 The trial court sentenced defendant to one year in prison.
¶ 20 Defendant timely appealed.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues that (1) the trial court should have granted his motion to
suppress, (2) his waiver of his right to a jury trial was invalid, (3) the subsections of the AUUW
statute under which he was convicted violate the second amendment to the United States
Constitution, and (4) if we affirm his convictions, all but one should be vacated pursuant to the
one-act, one-crime rule.
¶ 23 According to the Illinois Department of Corrections (IDOC) website, defendant has
completed his sentence and is no longer in IDOC custody. 3 Nevertheless, he can still challenge his
convictions. “[T]he completion of a defendant’s sentence renders a challenge to the sentence moot,
but not a challenge to the conviction. [CITATION] Nullification of a conviction may hold important
consequences for a defendant.” [CITATION]
We take judicial notice of information on IDOC’s website. [CITATION],
¶ 40.
No. 1-22-0455
¶ 24 A. Motion to Suppress
¶ 25 Defendant first contends that the trial court should have granted his motion to suppress the
firearm police recovered from his backpack, along with information about his age and lack of a
FOID card and CCL.
¶ 26 At a motion to suppress hearing, the defendant has the burden to make a prima facie
showing that the evidence in question was obtained by an illegal search or seizure. [CITATION], ¶ 22. A prima facie showing means the defendant must establish the
factual and legal basis for the motion to suppress. Id. When the defendant alleges evidence was
the product of an unlawful search or seizure, he must establish that there was a search or seizure
and that it was unlawful. Id.; [CITATION]. If a defendant makes a prima facie showing, the burden shifts to the State to present evidence to counter it.
[CITATION], ¶ 22. The ultimate burden of proof remains with the defendant. Id.
¶ 27 We review the denial of a motion to suppress using a two-part standard. Id. ¶ 21. We give
deference to the trial court’s findings of fact, which we reverse only if they are against the manifest
weight of the evidence. Id. We review de novo whether the police had probable cause to conduct
searches or seizures. Id. In reviewing the trial court’s ruling on a motion to suppress, we consider
the evidence adduced at trial as well as at the suppression hearing. [CITATION].
¶ 28 The fourth amendment to the United States Constitution prohibits unreasonable searches
and seizures. [CITATION] (citing U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; [CITATION]). This case involves three
interactions to which the fourth amendment applies: the initial traffic stop of the Nissan,
No. 1-22-0455
defendant’s arrest, and the search that produced the firearm in defendant’s backpack. Defendant’s
motion to suppress did not challenge the legality of the initial traffic stop, and he does not raise
that issue on appeal. Therefore, we assume that the traffic stop was lawful and proceed to the issue
of defendant’s arrest.
¶ 29 Defendant argues that “police arrested [him] after searching the car where he had been a
passenger and finding a gun in a backpack that was on a rear passenger floorboard.” According to
defendant, his arrest was unjustified because “[p]olice did not observe [him] engage in any
unlawful activity before the arrest or determine whether his possession of a firearm was illegal.”
Defendant also contends that his “illegal arrest led to the seizure of a gun and information about
his age and lack of a FOID card or concealed-carry license.”
¶ 30 We find these arguments somewhat contradictory. On the one hand, defendant claims that
police found the firearm in his backpack first, then arrested him. On the other hand, defendant
claims that police first arrested him unlawfully, then “seiz[ed]” the firearm. Perhaps defendant is
drawing a fine distinction between “finding” the firearm and “seizing” it, but it is not clear what
he contends the order of events was. For its part, the State argues that defendant forfeited the first
argument, i.e., that the officers did not have probable cause to arrest him because they learned only
after his arrest that it was illegal for him to possess the firearm due to his age and his lack of a
FOID card and CCL. According to the State, defendant did not advance that theory of suppression
in the trial court. Ultimately, we do not need to untangle these arguments because our review of
whether the officers violated defendant’s fourth amendment rights is de novo. See [CITATION], ¶ 21. We will apply fourth amendment principles to the evidence that was presented at
the motion to suppress hearing and at trial.
====== End of the Court Ruling ====== No. 1-22-0455
¶ 31 As noted above, there is no dispute that police conducted a traffic stop of the Nissan in
which defendant was a passenger. Defendant does not claim that the traffic stop was unlawful.
Following a lawful traffic stop, police may order the driver and passengers out of the vehicle while
[SEGMENT 33]
the officers complete the investigatory stop. [CITATION]
Ordering defendant to exit the Nissan was lawful. See id.
¶ 32 Clearly defendant was arrested at some point after police stopped the Nissan. The question
is when that occurred. “ ‘An arrest occurs when the circumstances are such that a reasonable
person, innocent of any crime, would conclude that he was not free to leave.’ ” [CITATION]
In determining whether an arrest occurred, we must consider “ ‘all of the circumstances
surrounding the encounter.’ ” Id. (quoting Kaupp v. Texas, 538 U.S. 626, 629 (2003) (per curiam)).
¶ 33 The evidence established the following sequence of events: Police stopped the Nissan and
ordered Culpepper to exit the vehicle; he refused. When Culpepper eventually did exit the Nissan,
the officers arrested him and recovered an ATM receipt that matched a bank card belonging to a
Tyler Hickman, who was not in the vehicle. The officers found Hickman’s card in the front
passenger-side door. Shortly thereafter, the officers ordered defendant and Morse out of the
vehicle, searched it, and found another bank card belonging to a Kenesha Allen, who was not in
the vehicle, as well as a check for $2007. When defendant was outside the Nissan, he was not
handcuffed, and the officers did not have their weapons drawn. However, Staszak testified that
defendant was “not free to leave” at that point. Wall saw the magazine of a firearm protruding
from defendant’s open backpack and recovered the firearm along with several credit and debit
cards. Staszak confirmed that defendant was detained when Wall recovered these items from
No. 1-22-0455
defendant’s backpack. A reasonable person in defendant’s position would not have thought that
he was free to simply walk away from the Nissan while the officers searched it, particularly
because Culpepper had already been arrested. See id. Therefore, defendant’s arrest occurred
shortly after he exited the Nissan and before Wall searched his backpack and recovered the firearm.
¶ 34 Next, we must determine whether defendant’s arrest was lawful. A warrantless arrest is
reasonable only if it is supported by probable cause. [CITATION], ¶ 11.
Probable cause to arrest exists if the facts known to the officer at the time of the arrest are sufficient
to lead a reasonable person to believe that the arrestee has committed a crime. Id. When
determining whether officers had probable cause to arrest, we examine the totality of the
circumstances known to the officers at the time of the arrest. Id. “Whether probable cause exists is
governed by commonsense considerations, and the calculation concerns the probability of criminal
activity, rather than proof beyond a reasonable doubt.” Id.
¶ 35 When the officers arrested defendant, they had observed Culpepper’s suspicious behavior
at two nearby banks, both of which he traveled to in the Nissan. The officers had also recovered
two pieces of evidence of bank fraud from the Nissan: the ATM receipt and Hickman’s bank card.
Given that defendant, Culpepper, and Morse were all in the Nissan together, “ ‘it was reasonable
for the officer[s] to infer a common enterprise among the three men.’ ” See [CITATION]; see also
[CITATION] (quoting [CITATION]); see also
[CITATION] (it is “likely a car passenger is a companion to
the driver, and perhaps involved in the driver’s criminal behavior”). In sum, at the time of
defendant’s arrest, police knew that defendant was a passenger in a vehicle they had probable
- 10 - No. 1-22-0455
cause to believe was being used to commit bank fraud. That was sufficient to provide probable
cause for defendant’s arrest. See [CITATION].
¶ 36 Defendant argues that “mere possession of a handgun was not a crime and could not serve
as a basis for arrest.” That may be true, but the evidence established that defendant was arrested
before Officer Wall discovered the firearm in his backpack. Defendant was not arrested based on
his possession of a firearm; he was arrested based on his suspected involvement in bank fraud.
¶ 37 Defendant also contends that the officers saw only Culpepper “engaging in the suspicious
activity at the two ATMs.” That is also true, but, as explained above, police may, in some
circumstances, infer a common criminal enterprise among occupants of the same vehicle. See [CITATION].
It is unlikely that an innocent, uninvolved person would be invited to ride along with
Culpepper as he committed suspected bank fraud. See [CITATION].
¶ 38 Defendant argues that the trial court should have suppressed evidence that he was under 21
and lacked a FOID card and CCL because those pieces of information were the “fruits of an illegal
arrest.” But defendant’s arrest was lawful, so this evidence was not the product of an unlawful
arrest. Moreover, at the motion to suppress hearing, defendant elicited no evidence about when or
how the officers learned that defendant did not have a FOID card or a CCL or that he was under
21. There is no factual basis to support suppressing that information. Accordingly, we affirm the
denial of defendant’s motion to suppress.
¶ 39 B. Jury Waiver
¶ 40 Defendant next argues that the trial court violated his right to a jury trial by accepting his
jury waiver without admonishing him of that right and without ensuring that he waived that right
knowingly and understandingly.
- 11 - No. 1-22-0455
¶ 41 Defendant’s posttrial motion did not raise his waiver of his right to a jury trial. Generally,
to preserve an issue for appeal, a defendant must object at trial and raise the issue in a posttrial
motion. [CITATION], ¶ 45. Failure to do so results in forfeiture of that issue.
Id. Defendant acknowledges that he did not preserve this issue, but he requests, and we will grant,
plain error review. See [CITATION], ¶ 11 (granting plain error review
of validity of jury waiver). The plain error doctrine allows a reviewing court to consider
unpreserved claims of error where (1) “a clear or obvious error occurred and the evidence is so
closely balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error” or (2) “a clear or obvious error occurred and that error
is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.” [CITATION], ¶ 48; see Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The violation of a defendant’s right to choose a
bench or a jury trial constitutes second-prong plain error. [CITATION], ¶ 18 (citing [CITATION]). The first step of plain error
review is determining whether an error occurred at all. [CITATION], ¶ 11.
¶ 42 Our federal and state constitutions guarantee the right to a jury trial. [CITATION], at
269. However, a defendant may waive his right to a jury trial. Id.; 725 ILCS 5/115-1 (West 2018).
For a jury waiver to be valid, it must be knowingly and understandingly made. [CITATION], at 269; 725 ILCS 5/103-6 (West 2018). A written jury waiver is one means by which a defendant
may waive his right to a jury, but a written waiver is not automatically valid. [CITATION], at 269-70. A jury waiver is generally valid when defense counsel waives that right in open court
and the defendant does not object. Id. at 270. A court does not need to give any specific
- 12 - No. 1-22-0455
admonishments for a waiver to be effective; rather, whether a jury waiver is valid depends upon
the facts and circumstances of each case. Id. at 269-70. There is no precise formula for determining
whether a jury waiver is valid. Id. at 269. “In essence, for a jury waiver to be effective, the trial
court must ensure that the defendant knows that the facts of his case would be determined by a
judge and not a jury and the resulting consequences of that decision.” [CITATION], ¶ 10 (citing [CITATION]). Defendant has the burden of
establishing that his jury waiver was invalid, and we review this issue de novo. Id.
¶ 43 We find no error based on the record before us. There is no dispute that defendant signed
a jury waiver form, which stated, “I, the undersigned, do hereby waive jury trial and submit the
above entitled cause to the Court for hearing.” The court addressed defendant, “I’m holding up a
jury waiver form that says you’re waiving your right to a jury trial. Did you sign that form, sir?”
Defendant responded, “Yes. Yes, sir.” The court then asked, “You are asking for a bench trial, not
a jury trial, sir; is that correct?” Defendant responded, “Correct.” The record suggests no hesitation,
uncertainty, or confusion on defendant’s part. There is no basis in the record for us to find that
defendant’s jury waiver was invalid.
¶ 44 Defendant argues that the trial court did not explain the difference between a bench trial
[SEGMENT 34]
and a jury trial, did not ask whether defendant understood that he had the right to a jury trial, and
did not ask whether his jury waiver was the product of any threats or promises. The law does not
require these admonishments or questions. See [CITATION] (“For a waiver to be
effective, the court need not impart to defendant any set admonition or advice.”). Defendant cites
no authority holding that the absence of these admonishments means his jury waiver was invalid.
- 13 - No. 1-22-0455
¶ 45 Defendant cites [CITATION] for the proposition that
“signing a [pre]printed [jury waiver] form has become such a routine formality that a perfunctory
signing—without proof that the form was read by the defendant and understood by him—cannot
be accepted as a substitute for an express waiver, understandingly made after careful interrogation
by the court.” [CITATION] suggests that the existence of a signed jury waiver form in the court file, on
its own, does not automatically constitute a valid waiver. That may be true, but it does not apply
to this case. In this case, the court held up defendant’s signed jury waiver form when he was in
court with his attorney, explained what the form meant, confirmed that defendant signed it, and
confirmed that defendant wanted a bench trial and not a jury trial. By contrast, in [CITATION], the trial
court did not ask the defendant if he wished to waive his right to a jury trial, did not read the waiver
form to him, did not ask whether he had read the waiver form, and did not ascertain whether the
defendant understood the waiver form. [CITATION] is distinguishable and does not compel
reversal.
¶ 46 Defendant also contends that he did not understand his right to a jury trial because he had
never gone to trial in a criminal case before. That may be true as well, but it does not mean that
defendant was a “stranger to the criminal justice system.” See [CITATION]. In fact,
on April 9, 2020, while this case was pending and defendant was out on bond, he was arrested and
charged with possession of a firearm while riding as a passenger in a vehicle. And prior to this
case, in 2018, defendant was convicted of possession of a controlled substance in Iowa. The record
does not support an inference that defendant was so unfamiliar with the criminal justice system
that he did not understand the difference between a jury trial and a bench trial. Accordingly, we
- 14 - No. 1-22-0455
find that defendant has not established any error, much less plain error, with respect to his jury
waiver.
¶ 47 C. Constitutionality of the AUUW Statute
¶ 48 Defendant next contends that the subsections of the AUUW statute under which he was
convicted are facially unconstitutional pursuant to the United States Supreme Court’s decision in
[CITATION]. Defendant
did not raise the constitutionality of the AUUW statute in his posttrial motion. However, a
challenge to the constitutionality of a statute may be raised at any time, even if the defendant did
not file a posttrial motion. [CITATION].
¶ 49 We presume statutes to be constitutional. [CITATION]. “To
overcome this presumption, the party challenging the statute must clearly establish that it violates
the constitution.” [CITATION]. We must construe the statute in a
manner that upholds its validity and constitutionality if we reasonably can. [CITATION].
Defendant makes a facial challenge to the constitutionality of the AUUW statute, which requires a showing that the statute is unconstitutional under any set of facts, i.e.,
there are no circumstances in which the statute could be validly applied. See [CITATION]. We review the constitutionality of any
statute de novo. [CITATION].
¶ 50 In Illinois, possession of firearms is governed by both civil and criminal statutes. The
Firearm Owners Identification Card Act (FOID Card Act) provides that “[n]o person may acquire
or possess any firearm *** without having in his or her possession a Firearm Owner’s
Identification Card previously issued in his or her name by the Department of State Police under
- 15 - No. 1-22-0455
the provisions of this Act.” 430 ILCS 65/2(a)(1) (West 2018). The State Police may deny an
application for a FOID card if the applicant is under 21 and does not have the written consent of
his or her parent or guardian. Id. § 8(b). The Firearm Concealed Carry Act requires an individual
to “possess a [CCL] at all times the licensee carries a concealed firearm” in public. 430 ILCS
66/10(g) (West 2018). To obtain a CCL, an applicant must be 21 or older. Id. § 25(1).
¶ 51 Relevant here, the AUUW statute provides that:
“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode,
legal dwelling, or fixed place of business, or on the land or in the legal dwelling of
another person as an invitee with that person’s permission, any pistol, revolver, stun
gun or taser or other firearm; [and]
***
(3) One of the following factors is present:
***
(A-5) the pistol, revolver, or handgun possessed was uncased,
loaded, and immediate accessible at the time of the offense and the person
possessing the pistol, revolver, or handgun has not been issued a currently
valid license under the Firearm Concealed Carry Act; or
***
- 16 - No. 1-22-0455
(C) the person possessing the firearm has not been issued a currently
valid Firearm Owner’s Identification Card; or
***
(I) the person possessing the weapon was under 21 years of age and
in possession of a handgun, unless the person under 21 is engaged in lawful
activities under the Wildlife Code ***.” 4 720 ILCS 5/24-1.6(a) (West
).
Defendant contends that these subsections of the AUUW statute are facially unconstitutional under
[CITATION].
¶ 52 In [CITATION], the United States Supreme Court announced the following test for the
constitutionality of firearms regulations:
“When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of
firearm regulation. Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s ‘unqualified command’ ” [CITATION].
As the Third District recently explained,
Count I of the indictment cited subsection (a)(3)(A) in addition to subsections (a)(3)(A-5) and
(C). We omit subsection (a)(3)(A) because, as best we can tell, it does not apply to defendant. The
evidence established that he possessed a pistol or handgun, but subsection (a)(3)(A) applies to firearms
“other than a pistol, revolver, or handgun.” 725 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2018).
- 17 - No. 1-22-0455
“[t]his text-and-history standard is a two-part inquiry. The first inquiry is: Does the plain
text of the second amendment cover an individual’s conduct? [Citation.] If not, the
regulation is constitutional because it falls outside the scope of protection. But if it does,
the individual’s conduct is presumptively protected by the second amendment, and we
move to the second inquiry: Is the State’s regulation ‘consistent with the Nation’s historical
tradition of firearm regulation[?]’ [Citation.]” [CITATION], ¶ 13.
¶ 53 First, we must identify the conduct at issue to determine whether that conduct falls under
the “plain text” of the second amendment. Defendant challenges three subsections of the AUUW
statute, which prohibit possessing a firearm in public (1) without a CCL if the firearm is uncased,
loaded, and immediately accessible; (2) without a FOID card; and (3) while under age 21. See 720
ILCS 5/24-1.6(a)(1), (a)(3)(A-5); (a)(1), (a)(3)(C); (a)(1), (a)(3)(I) (West 2018). Defendant argues
that merely “carrying a handgun in public” is the conduct at issue. We disagree. Possessing a
firearm is only the first part of the AUUW statute, subsection (a)(1). Possessing a firearm in public
becomes the crime of AUUW when one of the factors listed in subsection (a)(3) is present.
Certainly, defendant would not argue that the State could convict him of AUUW simply by proving
that he carried a firearm in public. Accordingly, we find that the conduct at issue is carrying a
[SEGMENT 35]
firearm outside in public without a CCL if the firearm is uncased, loaded, and immediately
accessible, or without a FOID card, or while being under 21.
¶ 54 Next, we must determine whether these three forms of conduct are protected by the “plain
text” of the second amendment. See [CITATION], 142 S. Ct. at 2129-30. The plain text
of the second amendment provides that “[a] well regulated Militia, being necessary to the security
- 18 - No. 1-22-0455
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. However, according to the Supreme Court, “[t]he Second Amendment *** ‘surely
elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-
defense.” [CITATION]. The difference between these two quotes is significant. The plain text of
the second amendment connects the right to bear arms with the necessity of a “well regulated
Militia.” U.S. Const., amend. II. By contrast, the Supreme Court’s interpretation does not mention
militias and, in fact, claims that the right to bear arms “does not depend on service in the militia.”
[CITATION]. Furthermore, [CITATION]
limits the second amendment’s scope to (1) citizens who are (2) law-abiding and (3) responsible,
and (4) who use firearms for self-defense. Id. at ___, 142 S. Ct. at 2156 (American government
has not “required law-abiding, responsible citizens to demonstrate a special need for self-
protection distinguishable from that of the general community in order to carry arms in public”
(internal quotation marks omitted)). The plain text of the second amendment contains none of these
terms.
¶ 55 We must decide whether to evaluate Illinois’s AUUW statute based on the actual plain text
of the second amendment or the Supreme Court’s interpretation of the second amendment. The
Illinois Supreme Court has suggested that the United States Supreme Court’s interpretation
controls: “Firearms that have been defaced so that they are untraceable by law enforcement ***
are not covered by the plain text of the second amendment because they are not typically used by
law-abiding citizens for lawful purposes.” (Emphasis added.) [CITATION],
¶ 27 (citing [CITATION]). This court has reached a similar conclusion. In [CITATION]
- 19 -
====== End of Part of a Court Ruling ====== No. 1-22-0455
[CITATION], this court explained that “[t]he Bruen Court could not have been
more clear that its newly announced test applied only to laws that attempted to regulate the gun
possession of ‘law-abiding citizens.’ ” Id. ¶ 37 (citing [CITATION] noted that Bruen repeats the phrase “law-abiding” 18 times between Justice Thomas’s
majority opinion and the concurrences. Id. Indeed, Bruen’s concluding paragraph states that New
York’s firearms regulatory scheme “violates the Fourteenth Amendment in that it prevents law-
abiding citizens with ordinary self-defense needs from exercising their right to keep and bear
arms.” (Emphasis added.) [CITATION]. In [CITATION], ¶ 27, this court maintained Baker’s conclusion that the Bruen test applies
only to “laws that attempt[ ] to regulate the gun possession of law-abiding citizens.” (Internal
quotation marks omitted.) The district court for the Northern District of Illinois has also “held,
post-Bruen, that the plain text of the Second Amendment does not cover the possession of firearms
by individuals who are not law-abiding.” 5 [CITATION]; see [CITATION] (unlawful users of controlled substances fall outside the second amendment’s protection
as they are not law-abiding).
¶ 56 One panel of this court has suggested that “possession of a firearm is ‘presumptively
constitutional’ ” regardless of whether one is “law-abiding.” See [CITATION], ¶¶ 88-89 (citing [CITATION]). Similarly, Justice Alito’s
concurrence claims that Bruen “decides nothing about who may lawfully possess a firearm.”
The decisions of federal district courts are not binding on us, but we may consider them as
persuasive authority. [CITATION], ¶ 37 n.3.
- 20 - No. 1-22-0455
[CITATION], 597 at U.S. at ___, 142 S. Ct. at 2157 (Alito, J., concurring). But we cannot square these
claims with the fact that [CITATION] expressly and repeatedly limits the second amendment’s scope to
law-abiding citizens. Indeed, the first paragraph of the opinion states that “the Second and
Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun
in the home for self-defense” and “a similar right to carry handguns publicly for their self-defense.”
Id. at ___, 142 S. Ct. at 2122 (majority opinion).
¶ 57 Subsections (a)(3)(A-5) and (a)(3)(C) of the AUUW statute apply exclusively to non-law-
abiding conduct. Possessing a concealed firearm outside the home without a CCL violates section
10(g)(1) of the Firearm Concealed Carry Act. 430 ILCS 66/10(g)(1) (West 2018). Possessing a
firearm without a FOID card violates section 2(a)(1) of the FOID Card Act. 430 ILCS 65/2(a)(1)
(West 2018). Violating the Firearm Concealed Carry Act or the FOID Card Act is not “law-
abiding” conduct so, according to [CITATION], the second amendment does not apply to that conduct.
See [CITATION], 2023 IL App (1st) 220328, ¶ 37 (“[CITATION] just does not apply” to those who are not law-
abiding). Enforcing subsections of the AUUW statute that simply criminalize what are already
violations of civil laws does not implicate the second amendment. Our analysis of the
constitutionality of subsections (a)(3)(A-5) and (a)(3)(C) ends at the first step of the [CITATION] test.
¶ 58 Subsection (a)(3)(I) prohibits a person who is under 21 from being “in possession of a
handgun, unless the person under 21 is engaged in lawful activities under the Wildlife Code.” 720
ILCS 5/24-1.6(a)(3)(I) (West 2018). Our supreme court has held that “the public carrying of
firearms by those persons under 21 years of age is conduct that falls outside the scope of the second
amendment” ([CITATION], 2015 IL 116834, ¶ 25), so “neither subsection (a)(3)(C)[ ] nor
(a)(3)(I) violates the second amendment rights of *** 18-to-20-year-old persons.” [CITATION]
- 21 - No. 1-22-0455
[CITATION], ¶ 38. Although [CITATION] and [CITATION] predate Bruen, their reasoning is
consistent with the “plain text” and historical analysis that Bruen requires. [CITATION] and [CITATION]
also did not conduct the “means-end” analysis that Bruen prohibits. Bruen, 597 U.S. at ___, 142
S. Ct. at 2127. We do not see how Bruen changes the holdings of [CITATION] or [CITATION]. Defendant
insists that “Mosley’s historical analysis is incorrect,” but he does not explain how. Regardless,
this court lacks authority to overrule the decisions of the Illinois Supreme Court. [CITATION]. Our supreme court has already concluded that subsection (a)(3)(I) of
the AUUW statute is not unconstitutional because it does not implicate the second amendment.
[CITATION]. We follow those holdings.
¶ 59 Defendant argues that the second amendment protects possession of firearms by “all
Americans” without limitation. He does not acknowledge that Bruen limits the second
amendment’s protections to law-abiding citizens, even though Bruen repeats that limitation more
than a dozen times. Similarly, defendant does not acknowledge that multiple Illinois courts have
interpreted Bruen as placing such a limitation on the second amendment. Defendant’s approach to
the “plain text” step of the Bruen test disregards Bruen’s own interpretation of whom the second
amendment protects: law-abiding citizens who possess firearms outside the home for purposes of
self-defense.
¶ 60 Defendant devotes much of his briefs to arguing that Illinois’s civil firearms regulation
regime, rather than the AUUW statute, is unconstitutional. For example, defendant complains that
obtaining a FOID card and a CCL “impose[ ] burdens” like completing a form, submitting a
photograph with the application, and completing 16 hours of firearms training. Defendant also
objects to Illinois requiring a parent or guardian’s permission for an 18-to-20-year-old to obtain a
- 22 - No. 1-22-0455
[SEGMENT 36]
FOID card. According to defendant, the fact that a teenager needs parental consent to own a firearm
is “an affront to *** deep constitutional tradition.” 6 That contention is meritless.
¶ 61 In any event, Bruen does not hold or even suggest that Illinois’s FOID Card or Firearm
Concealed Carry Acts are unconstitutional. It suggests the opposite. Bruen held that New York’s
firearm regulation regime was unconstitutional because it allowed state officials to deny a license
to carry a firearm in public based on an applicant’s failure to demonstrate “cause” or “need.” See
[CITATION] That is not how Illinois’s firearm
regulation regime operates. Rather, Illinois is what Bruen calls a “shall-issue” state because the
Illinois State Police shall issue a FOID card and a CCL to any applicant who meets the respective
statutory criteria. [CITATION] Bruen states that “nothing
in our analysis should be interpreted to suggest the unconstitutionality of *** ‘shall-issue’
licensing regimes.” [CITATION] This court has held that,
under Bruen, Illinois’s FOID Card Act and Firearm Concealed Carry Act are not facially
unconstitutional. [CITATION] We see no reason to revisit that
holding. Accordingly, we hold that subsections (a)(3)(A-5), (a)(3)(C), and (a)(3)(I) of the AUUW
statute are not facially unconstitutional under Bruen.
¶ 62 D. One-Act, One-Crime
The Office of the State Appellate Defender’s (OSAD) apparent position that 18-to-20-year-olds
are adults who are fully entitled to unrestricted ownership of firearms is difficult to square with OSAD’s
position that, for purposes of sentencing, defendants as old as 22 or 23 are effectively juveniles because
their brains have not finished developing. See, e.g., [CITATION]
- 23 - No. 1-22-0455
¶ 63 Finally, defendant argues that, if we affirm his convictions, we should vacate all but one
of them pursuant to the one-act, one-crime rule because each of the four counts of AUUW involved
the same act of possessing one firearm. The State agrees.
¶ 64 Defendant did not preserve this issue because he did not raise it in his posttrial motion. See
[CITATION]. However, he requests review under the second
prong of the plain error rule. One-act, one-crime violations fall under the second prong of the plain
error rule. [CITATION].
¶ 65 The one-act, one-crime rule prohibits multiple convictions based on the same physical act.
[CITATION]. An “act” is “ ‘any overt or outward
manifestation which will support a different offense.’ ” (Internal quotation marks omitted.) [CITATION] (quoting [CITATION]). Illinois courts have generally held that possession of one firearm is a single physical act
that can only support one conviction. See, e.g., id.; [CITATION] (finding
a one-act, one-crime violation where the defendant’s AUUW and armed habitual criminal
convictions were based on the possession of one firearm). We follow that authority and conclude
that defendant can only be convicted of one count of AUUW due to his possession of one firearm.
¶ 66 However, that does not undermine our conclusion that, for purposes of constitutionality
under the Bruen test, the “conduct” that the AUUW statute prohibits is possessing a firearm under
subsection (a)(1) plus one of the factors in subsection (a)(3). Defendant’s constitutional argument
and his one-act, one-crime argument involve different “halves” of the AUUW statute. The
constitutional argument addresses the nonphysical factors in subsection (a)(3) that make physical
possession of a firearm a crime. By contrast, the one-act, one-crime argument addresses physical
- 24 - No. 1-22-0455
possession of a firearm under subsection (a)(1). In other words, the one-act, one-crime analysis
asks how many firearms defendant possessed and how many convictions can be entered. The
constitutional analysis asks whether a state can criminalize the possession of a firearm based on
age and noncompliance with civil firearms regulations.
¶ 67 When multiple convictions violate the one-act, one-crime rule, we must vacate the less
serious convictions. [CITATION]. To determine which offense is less serious, we first
examine the potential punishment for each offense. [CITATION].
All four counts of AUUW in this case are Class 4 felonies that carry the same punishment. 720
ILCS 5/24-1.6(d) (West 2018). We must next examine which offense has the more culpable mental
state. [CITATION]. All four counts have the same mental state, which is
“knowingly.” 720 ILCS 5/24-1.6(a) (West 2018). We cannot determine which of the counts is the
most serious, so we remand to the trial court for that determination. [CITATION].
¶ 68 III. CONCLUSION
¶ 69 For the foregoing reasons, we affirm the denial of defendant’s motion to quash arrest and
suppress evidence, the trial court’s acceptance of his jury waiver, and the constitutionality of his
convictions for AUUW. However, we find that defendant’s four AUUW convictions for one act
of possessing a firearm violate the one-act, one-crime rule, and we remand to the trial court to
determine which counts should be vacated and which one should stand.
¶ 70 For the foregoing reasons, we affirm and remand.
¶ 71 Affirmed and remanded.
- 25 - No. 1-22-0455
[CITATION]
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-CR-
; the Hon. John T. Gallagher, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Matthew M. Daniels, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Jessica R. Ball, and James J. Stumpf, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
- 26 -
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
2023 IL App (1st) 221032
THIRD DIVISION
September 27, 2023
No. 1-22-1032
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 21 CR 11944
)
CHRISTION GUNN, ) Honorable
) Vincent M. Gaughan,
) Judge Presiding.
Defendant-Appellant.
JUSTICE R. VAN TINE delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.
OPINION
¶1 BACKGROUND
¶2 Following a bench trial, defendant Christion Gunn was convicted of aggravated unlawful
use of a weapon (AUUW). 720 ILCS 5/24-1.6 (West 2020). The conviction was based on a traffic
stop during which police found a loaded firearm on his person. During the stop, Gunn told the
arresting police officers that his Firearm Owner’s Identification (FOID) card had been revoked
1-22-1032
and that he never had a concealed carry license (CCL). On appeal, Gunn argues that his conviction
must be reversed because the Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS
65/1 et seq. (West 2020)) and the Firearm Concealed Carry Act (Carry Act) (430 ILCS 66/1 et seq.
(West 2020)) are both facially unconstitutional under the second amendment to the United States
Constitution as interpreted by the recent United States Supreme Court decision in New York State
Rifle & Pistol Ass’n v. Bruen, 597 U.S. ___,142 S. Ct. 2111 (2022). For the following reasons, we
affirm.
¶4 FACTS
¶5 On the evening of August 11, 2021, a marked police squad car driven by Chicago police
officer Chavon Trammell pulled Gunn over because one of his headlights was out and his license
plate was expired. Officers Trammell, Matthew Dorsen, and Jacob Gies exited the squad car and
approached Gunn’s vehicle. Officer Trammell knocked on the rear passenger-side window of
Gunn’s vehicle to get his attention. Trammell testified that, as Gunn lowered his window, the smell
of burnt cannabis immediately emanated from the vehicle, and Trammell noticed a cigarillo
wrapper in Gunn’s right hand. Upon request, Gunn provided his driver’s license and proof of
insurance. However, because of the smell of burnt cannabis, Trammell asked Gunn to step out of
the vehicle.
¶6 Trammell handcuffed Gunn and searched him. The search revealed a loaded firearm in his
front waistband. Gunn told the officers that his FOID card had been revoked and that he never had
a CCL. Based on the events of this traffic stop, the State charged Gunn with three counts of
AUUW. Ultimately, the case proceeded to trial solely on count I, which alleged that Gunn carried
2
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a loaded firearm without possessing a valid FOID card or CCL. The circuit court found Gunn
guilty of AUUW and sentenced him to 15 months in prison. This direct appeal follows.
¶7 ANALYSIS
¶8 On appeal, Gunn argues that his AUUW conviction must be reversed because it was based
on his noncompliance with the FOID Card Act and Carry Act, both of which, according to Gunn,
violate the second amendment to the United States Constitution. Specifically, Gunn essentially
argues that the FOID Card Act is facially unconstitutional because the second amendment does
not permit any kind of restriction on the right to bear arms. Gunn contends that the Carry Act is
also facially unconstitutional because the procurement of a CCL is conditioned on possession of a
FOID card. In support of these arguments, Gunn relies on the Supreme Court decision in Bruen,
597 U.S. ___, 142 S. Ct. 2111, and its holding that gun regulation regimes must be analyzed
through a historical lens of firearm regulation.
¶9 We have an independent duty to consider our own jurisdiction, irrespective of whether the
parties have raised it. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213
(2009). When jurisdiction is lacking, we must dismiss the appeal. Uesco Industries, Inc. v.
Poolman of Wisconsin, Inc., 2013 IL App (1st) 112566, ¶ 73. Generally, “[t]o preserve an issue
for appellate review, a defendant must both object at trial and present the issue in a written posttrial
motion.” People v. Lovejoy, 235 Ill. 2d 97, 148 (2009) (citing People v. Enoch, 122 Ill. 2d 176,
186 (1988)). However, an exception exists for constitutional challenges: a challenge to the
constitutionality of a statute may be raised at any time. In re M.I., 2013 IL 113776, ¶ 39.
Accordingly, we have jurisdiction to consider his appeal. We proceed to the merits of the case.
¶ 10 The FOID Card Act requires persons to obtain a FOID card before legally possessing
firearms or ammunition. 430 ILCS 65/2(a) (West 2020). The Carry Act requires persons to obtain
3
1-22-1032
a CCL prior to lawfully carrying a firearm on their person. 430 ILCS 66/10 (West 2020). The
AUUW statute (720 ILCS 5/24-1.6 (West 2020)) criminalizes noncompliance with the FOID Card
Act and Carry Act as follows:
“(a) A person commits the offense of aggravated unlawful use of a weapon when
he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on
or about his or her person except when on his or her land or in his or her abode,
legal dwelling, or fixed place of business, or on the land or in the legal dwelling of
another person as an invitee with that person’s permission, any pistol, revolver, stun
gun or taser or other firearm; ***
*** and
(3) One of the following factors is present:
***
(A-5) the pistol, revolver, or handgun possessed was uncased,
loaded, and immediately accessible at the time of the offense and the person
possessing the pistol, revolver, or handgun has not been issued a currently
valid license under the Firearm Concealed Carry Act; or
***
(C) the person possessing the firearm has not been issued a currently
valid Firearm Owner’s Identification Card[.]” Id.
¶ 11 The second amendment to the United States Constitution provides: “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const., amend. II.
4
1-22-1032
¶ 12 Here, we are tasked with determining whether certain Illinois statutes conflict with federal
law. It is well settled that “[s]tate law is null and void if it conflicts with federal law.” Performance
Marketing Ass’n v. Hamer, 2013 IL 114496, ¶ 14 (citing Sprietsma v. Mercury Marine, 197 Ill. 2d
112, 117 (2001)). However, we presume statutes are constitutional, and “we have the duty to
construe statutes so as to uphold their constitutionality if there is any reasonable way to do so.”
People v. Jones, 223 Ill. 2d 569, 595-96 (2006) (citing Arangold Corp. v. Zehnder, 187 Ill. 2d 341,
351 (1999), and People v. Inghram, 118 Ill. 2d 140, 146 (1987)). Facial challenges require a
showing that the statutes in question are unconstitutional under any set of facts. People v.
Thompson, 2015 IL 118151, ¶ 36. The burden on the challenger is “particularly heavy when ***
a facial constitutional challenge is presented.” Bartlow v. Costigan, 2014 IL 115152, ¶ 18.
Constitutional challenges to statutes present a question of law, and we review such questions
de novo. People v. Madrigal, 241 Ill. 2d 463, 466 (2011). De novo review means we engage in the
same analysis as the trial court. Xuedong Pan v. King, 2022 IL App (1st) 211482, ¶ 16.
¶ 13 The United States Supreme Court has expounded the second amendment on numerous
occasions, most recently in its landmark decision in Bruen, 597 U.S. ___, 142 S. Ct. 2111. Bruen
involved a challenge to a New York licensing regime that regulated gun possession and carry. Id.
at ___, 142 S. Ct. at 2122. Persons wishing to possess a firearm at home were required to convince
a licensing officer that they were of good moral character and did not have a history of crime or
mental disease and that no good cause for denial existed. Id. at ___, 142 S. Ct. at 2122-23.
However, persons wishing to carry a firearm outside of their home had to show “proper cause” to
be issued a license. Id. at ___, 142 S. Ct. at 2123. This generally meant that people had to
“ ‘demonstrate a special need for self-protection distinguishable from that of the general
community.’ ” Id. at ___, 142 S. Ct. at 2123. The Supreme Court held that the proper cause
5
1-22-1032
requirement of the carry regulation violates the constitutional right to keep and bear arms. Id. at
142 S. Ct. at 2156.
¶ 14 We now address whether the FOID Card Act and Carry Act comport with federal law.
¶ 15 The Constitutionality of the FOID Card Act
¶ 16 In 1968, the Illinois General Assembly passed the FOID Card Act to “identify[ ] persons
who are not qualified to acquire or possess firearms, firearm ammunition, stun guns, and tasers.”
430 ILCS 65/1 (West 2020). In line with that goal, the FOID Card Act requires that a person
wishing to acquire or possess a firearm first obtain a FOID card from the Illinois State Police. Id.
§ 2(a)(1). An applicant must pay a $10 fee to the Illinois State Police. Id. § 5(a). Applicants must
also submit proof of Illinois residence, show they are at least 21 years of age, and provide a
photograph. Id. §§ 4(a)(2)(a)(xiv), (a)(2)(i), (a-20). Upon receipt of the application, the Illinois
State Police conducts an
“automated search of its criminal history record information files and those of the Federal
Bureau of Investigation, including the National Instant Criminal Background Check
System, and of the files of the Department of Human Services relating to mental health and
developmental disabilities to obtain any felony conviction or patient hospitalization
information which would disqualify a person from obtaining or require revocation of a
currently valid Firearm Owner’s Identification Card.” Id. § 3.1(b).
¶ 17 If applicants meet these requirements, the Illinois State Police shall issue them a FOID card
within 30 days of applying. Id. § 5(a). Upon issuance, a FOID card remains valid for 10 years. Id.
§ 7(a). Illinois is known as a shall-issue state because the police must issue a FOID card to any
applicant who fulfills the criteria set forth in the statute. 430 ILCS 65/5 (West 2020). In contrast
6
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to the New York regulations, the state of Illinois does not have discretion to deny an applicant
based on requirements or factors not explicitly set forth in the statute.
¶ 18 Gunn argues that the FOID Card Act’s requirements that a person provide evidence of
personal information and pay a fee constitute an impermissible barrier to the exercise of second
amendment rights. He contends that the FOID Card Act is inconsistent with the nation’s historical
tradition of firearm regulation and therefore violates the right to bear arms. We find Gunn’s
argument meritless.
¶ 19 First, Gunn cites no authority to support the proposition that the FOID Card Act is
unconstitutional on its face. Our supreme court has held only that the FOID Card Act does not
apply within a person’s home. People v. Brown, 2020 IL 124100, ¶¶ 31-33. Here, Gunn was not
at home. Gunn was outside of his home with a loaded firearm and without a valid FOID card.
There is no indication in the Brown decision that our supreme court questioned the validity of the
FOID Card Act outside the home.
¶ 20 Second, we find Bruen’s holding inapplicable to Gunn’s challenge to the FOID Card Act.
As explained above, Bruen held that the proper cause requirement of New York’s carry licensing
regime was unconstitutional. That is, Bruen considered whether New York’s concealed carry
legislation complied with federal law; it did not address the question of whether a requirement like
the FOID card was permissible under federal law. To the contrary, the Court explicitly
acknowledged that background checks, which are the cornerstone of the FOID Card Act, are
permissible. Bruen, 597 U.S. at ___, 142 S. Ct. at 2138 n.9. There is no need for us to engage in a
historical analysis of firearm regulation when the Supreme Court has already done so and explicitly
sanctioned the use of background checks. Id. at ___, 142 S. Ct. at 2138 n.9. Based on the foregoing,
we hold that the FOID Card Act complies with federal law.
7
1-22-1032
¶ 21 The Constitutionality of the Carry Act
¶ 22 In 2013, Illinois implemented the Carry Act to allow qualified individuals to obtain licenses
to carry concealed handguns in public. 430 ILCS 66/1 et seq. (West 2020). In addition to
possessing a valid FOID card (id. § 25(2)) and paying a $150 fee to the Illinois State Police (id.
§ 60(b)), an individual seeking a CCL must fulfill several requirements. The individual must not
have been found guilty in this state or another state of a misdemeanor involving the use or threat
of physical force or violence to any person within five years preceding the date of the application.
Id. § 25(3)(A). Also, the individual must not have two or more violations related to impaired
driving within the same time period. Id. § 25(3)(B). Applicants must not be the subject of a pending
warrant or prosecution that could result in their disqualification to possess a firearm (id. § 25(4)),
and have not been ordered treatment for alcohol or drugs within the five preceding years. Id.
§ 25(5). Applicants must provide proof they completed a 16-hour firearms training course. Id.
§ 25(6).
¶ 23 As with the FOID card, the Illinois State Police shall issue applicants who have complied
with these requirements a CCL within 90 days. Id. § 10(a), (e). Upon issuance, a CCL remains
valid for five years. Id. § 10(c). As with the FOID card, Illinois is a shall-issue jurisdiction with
respect to the CCL. 430 ILCS 66/10 (West 2020). That is, the State does not have any discretion
to deny a CCL to an applicant who fulfills these objective criteria. Unlike the discretionary
issuances of licenses that were the subject of the Bruen case, the Illinois statute mandates issuance
of FOID cards and CCLs within the framework of what has always been historically acceptable in
the United States.
¶ 24 In Bruen, the Supreme Court emphasized the centrality of a historical analysis in
determining whether a challenged gun regulation passes constitutional muster. Citing District of
8
1-22-1032
Columbia v. Heller, 554 U.S. 570 (2008), the Court iterated that the relevant test “requires courts
to assess whether modern firearms regulations are consistent with the Second Amendment’s text
and historical understanding.” Bruen, 597 U.S. at ___, 142 S. Ct. at 2131. As mentioned above,
the New York carry licensing required an applicant to demonstrate “proper cause,” which
generally meant “ ‘demonstrat[ing] a special need for self-protection distinguishable from that of
the general community.’ ” Id. at ___, 142 S. Ct. at 2123. The determination of what constituted
“proper cause” was performed on an applicant-by-applicant basis. The Supreme Court found that
New York failed to “demonstrate a tradition of broadly prohibiting the public carry of commonly
used firearms for self-defense.” Id. at ___, 142 S. Ct. at 2138. Additionally, the Court found that
there is no “historical tradition limiting public carry only to those law-abiding citizens who
demonstrate a special need for self-defense.” Id. at ___, 142 S. Ct. at 2138. However, the Bruen
Court, while citing several historical precedents, plainly acknowledged:
“To be clear, nothing in our analysis should be interpreted to suggest the
unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general
desire for self-defense is sufficient to obtain a [permit].’ Drake v. Filko, 724 F. 3d 426, 442
(CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require
applicants to show an atypical need for armed self-defense, they do not necessarily prevent
‘law-abiding, responsible citizens’ from exercising their Second Amendment right to
public carry. District of Columbia v. Heller, 554 U.S. 570, 635 (2008). Rather, it appears
that these shall-issue regimes, which often require applicants to undergo a background
check or pass a firearms safety course, are designed to ensure only that those bearing arms
in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ Ibid. And they likewise
appear to contain only ‘narrow, objective, and definite standards’ guiding licensing
9
1-22-1032
officials, Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969), rather than requiring the
‘appraisal of facts, the exercise of judgment, and the formation of an opinion,’ Cantwell v.
Connecticut, 310 U.S. 296, 305 (1940)—features that typify proper-cause standards like
New York’s. That said, because any permitting scheme can be put toward abusive ends,
we do not rule out constitutional challenges to shall-issue regimes where, for example,
lengthy wait times in processing license applications or exorbitant fees deny ordinary
citizens their right to public carry.” Id. at ___, 142 S. Ct. at 2138 n.9.
¶ 25 Moreover, the Bruen Court acknowledged that, “[t]hroughout modern Anglo-American
history, the right to keep and bear arms in public has traditionally been subject to well-defined
restrictions governing the intent for which one could carry arms, the manner of carry, or the
exceptional circumstances under which one could not carry arms.” Id. at ___, 142 S. Ct. at 2138.
¶ 26 Gunn contends that the Carry Act is unconstitutional for several reasons. 1 First, because
the issuance of a CCL is contingent on the applicant’s possession of a valid FOID card (which he
argues is unconstitutional), the CCL requirement also violates federal law. Second, he asserts that
the requirement of completing a 16-hour firearms training course is impermissible because it grants
too much discretion to a firearms instructor. Third, he argues that the Carry Act’s 90-day waiting
period and 5-year validity period are unconstitutional because they do not comport with our
nation’s historic tradition of firearm regulation. We find Gunn’s arguments unpersuasive.
¶ 27 Gunn’s first argument is without merit. We have already addressed how the FOID Card
Act complies with federal law.
1
We note here that that this court previously declined to consider a challenge to the constitutionality
of the Carry Act. People v. Thompson, 2023 IL App (1st) 220429-U. In that case, the court found that the
defendant lacked standing to challenge the Carry Act because he did not “submit to the challenged policy.”
Id. ¶ 59. Here, we consider the merits of Gunn’s argument because the State’s cursory argument regarding
standing is unpersuasive.
10
1-22-1032
¶ 28 Gunn’s second argument challenges the validity of the Carry Act’s provision that states
“[a] certificate of completion for an applicant’s firearm training course shall not be issued to a
student who: (1) does not follow the orders of the certified firearms instructor.” 430 ILCS 66/75
(e)(1) (West 2020). According to Gunn, this grants an impermissible amount of discretion to the
State. Under Gunn’s theory, the requirement would only be constitutional if the applicant’s only
obligation was to be physically present at the course. This argument is without merit. A firearms
training course would serve no purpose if all the applicant was required to do was to be physically
present and ignore the instruction. As mentioned above, Bruen approved of firearms safety
courses. Gunn offers an overreaching interpretation of Bruen, and we must reject it.
¶ 29 Third, there is no need to engage in a historical analysis to determine whether the Carry
Act’s 90-day waiting period and 5-year validity period are constitutional. In Bruen, the Court
suggested that “lengthy” license processing wait times or “exorbitant” licensing fees may be
grounds for findings of unconstitutionality. Bruen, 597 U.S. at ___, 142 S. Ct. at 2138 n.9. Here,
however, Gunn has not alleged or argued that the 90-day waiting period and $150 fee every 5 years
for renewal constitute “lengthy wait times” or “exorbitant fees,” respectively. We cannot say that
90 days constitutes a “lengthy” wait time nor that a $150 fee constitutes an “exorbitant fee.”
Accordingly, we reject this argument.
¶ 30 In sum, consistent with the Supreme Court’s guidance quoted above, the Carry Act sets
forth broadly applicable, well-defined requirements, which, if fulfilled, result in the issuance of a
CCL. These include background checks and completion of a firearms training course, both of
which the Supreme Court explicitly sanctioned in Bruen. None of the requirements compel
applicants to demonstrate a special need to carry firearms for self-defense, nor are these
requirements subject to the State’s discretion. Again, Illinois is a shall-issue jurisdiction. Unlike
11
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the New York regulation that granted broad discretion to the state in deciding whether an applicant
has demonstrated a special need to carry, Illinois’s statute does not do that. Simply put, the Illinois
scheme aims to ensure that only law-abiding citizens are allowed to carry firearms.
¶ 31 Accordingly, we find no basis under Bruen to invalidate the Carry Act. We hold that the
Carry Act comports with federal law and, consequently, the AUUW statute does as well.
¶ 32 CONCLUSION
¶ 33 In Bruen, the United States Supreme Court had the opportunity to denounce states’ gun
regulation schemes outright. However, it did not do so. Rather, it explicitly acknowledged that
shall-issue regimes, which are aimed at ensuring that only law-abiding citizens are allowed to
possess and carry firearms, do not prevent citizens from exercising their second amendment rights.
Illinois is a shall-issue state with clearly defined, objective criteria regarding firearm possession
and carry. Thus, we have no reason to believe that the Supreme Court intended to invalidate the
type of firearm regulation employed by our state.
¶ 34 For the foregoing reasons, we affirm Gunn’s AUUW conviction.
¶ 35 Affirmed.
12
1-22-1032
People v. Gunn, 2023 IL App (1st) 221032
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 21-CR-
11944; the Hon. Vincent M. Gaughan, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Arianne Stein, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Brian Levitsky, and Whitney Bond, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
13
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
- Supporting Segments:
[
"1",
"5",
"6",
"7",
"8",
"9",
"10",
"13",
"15",
"16",
"17",
"18",
"20",
"23",
"25",
"26",
"28",
"29",
"30",
"31",
"36"
]
Law
9882910
[SEGMENT 1]
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-01-003
: OPINION
- vs -
/1/2024
:
EDWARD HALBERT, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 20CR37130
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Christopher Bazeley, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Edward Halbert, appeals the decision of the Warren County
Court of Common Pleas ordering the 15-year-to-life prison sentence he received for
murdering his cellmate at the Warren County Correctional Institution to be served
consecutively to the prison sentence he was currently serving at the time of the murder. Warren CA2024-01-003
For the reasons outlined below, we affirm the trial court's decision.
{¶ 2} On March 1, 2023, following a three-day jury trial, Halbert was found guilty
of murdering his cellmate, Delvin Bunton, while both men were inmates incarcerated at
the Warren County Correctional Institution.1 Upon the return of the jury's verdict, the trial
court issued a decision sentencing Halbert to serve a term of 15 years to life in prison for
Bunton's murder. The trial court ordered that 15-year-to-life prison sentence be served
consecutively to the prison sentence that Halbert was currently serving at the time of
Bunton's murder. Halbert appealed the jury's verdict and the trial court's sentence. This
court affirmed the jury's verdict finding Halbert guilty of murdering Bunton, but reversed
the trial court's decision to impose consecutive sentences. [CITATION]
{¶ 3} In so doing, this court noted that the record did not "reflect that the court
addressed the required proportionality finding or engaged in the proportionality analysis
and found that the seriousness of Halbert's conduct and the danger he posed to the public
justified a consecutive sentence." Id. at ¶ 35. This court therefore vacated that portion
of the trial court's judgment imposing consecutive sentences and remanded the matter to
the trial court for resentencing. On remand, we instructed the trial court that it:
shall consider whether consecutive sentences are appropriate
under R.C. 2929.14(C)(4), and if so, shall make the required
statutory findings on the record at resentencing and
incorporate its findings into a sentencing entry.
Id. at ¶ 38.
{¶ 4} On January 22, 2024, the trial court held the necessary resentencing
1. The record indicates that prior to murdering Bunton, Halbert had been in prison for over 40 years, first
beginning in the early 1980's, on charges of robbery, aggravated robbery, attempted rape, rape, and
assault.
Warren CA2024-01-003
hearing as instructed by this court in [CITATION]. This ultimately resulted in the trial court
sentencing Halbert to the same 15-year-to-life prison sentence that the court had
originally imposed. This time, however, the trial court made the necessary consecutive
sentence findings as required by R.C. 2929.14(C)(4). In so doing, the trial court stated:
Okay. Defendant's history demonstrates consecutive
sentences are necessary to * * * protect the public from future
crime by the defendant. That the sentences are consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger of the offender⎯that the
offender poses to the public. I've considered that. And, again,
the finding that his history demonstrates consecutive
sentences are necessary.
Upon the conclusion of the trial court's resentencing hearing, the trial court filed its
judgment entry of sentence. Incorporated into that entry were the trial court's consecutive
sentence findings set forth above.
{¶ 5} On January 23, 2024, Halbert filed a notice of appeal. Following briefing
from both parties, the case was submitted to this court for consideration on May 22, 2024.
Halbert's appeal now properly before this court for decision, Halbert raises one
assignment of error for review. In that single assignment of error, Halbert argues the trial
court erred by imposing consecutive sentences upon remand in this case from [CITATION].
We disagree.
{¶ 6} "A felony sentence is reviewed under the standard set forth in R.C.
2953.08(G)(2)." [CITATION]. Pursuant to that
statute:
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court's standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action
authorized by this division if it clearly and convincingly finds
Warren CA2024-01-003
either of the following:
That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
.20 of the Revised Code, whichever, if any, is relevant;
That the sentence is otherwise contrary to law.
Therefore, given the plain language set forth in R.C. 2953.08(G)(2)(a) and (b), this court
may modify or vacate a felony sentence only if, by clear and convincing evidence, the
record does not support the trial court's findings under relevant statutes, or the sentence
is otherwise contrary to law. [CITATION]
{¶ 7} "The consecutive sentence statute, R.C. 2929.14(C)(4), is one of the
relevant statutes specifically mentioned in R.C. 2953.08(G)(2)." [CITATION] "Thus, there are two ways that a defendant can challenge
consecutive sentences on appeal." [CITATION] The defendant can argue that, pursuant to R.C. 2953.08(G)(2)(a), the record does not
support the trial court's consecutive sentence findings made under R.C. 2929.14(C)(4).
[CITATION] The defendant can also argue that,
pursuant to R.C. 2953.08(G)(2)(b), the imposition of consecutive sentences is contrary to
law because the trial court failed to make the necessary consecutive sentence findings
as required by R.C. 2929.14(C)(4). [CITATION] "These are the only two means that the legislature provided to defendants to challenge
their consecutive sentences on appeal." [CITATION]
{¶ 8} To support his claim that it was error for the trial court to impose consecutive
sentences upon remand in this case from Halbert I, Halbert initially argues that he "suffers
from severe mental health issues which cloud his judgment." Halbert also argues that
Warren CA2024-01-003
the evidence in this case reveals that the victim, Bunton, was not simply an "innocent
bystander who was attacked unprovoked." Halbert argues that the evidence instead
demonstrates that Bunton "participated in, as well as proposed," the "scheme" that
ultimately resulted in his death. That being, a plan for Halbert to assist Bunton in making
a fake suicide attempt so that Bunton could obtain a transfer to a different correctional
facility within Ohio.
{¶ 9} However, even if we were to ignore the fact that this court has already
rejected Halbert's claim that "the evidence shows that [he] merely intended to 'help'
Bunton by 'fak[ing] a suicide attempt, not to harm' him" when affirming the jury's verdict
finding Halbert guilty of murder in [CITATION] at ¶ 21-27 (12th Dist.),
neither of Halbert's arguments raised herein present any challenge to whether, in
accordance with R.C. 2953.08(G)(2)(b), the trial court made the necessary consecutive
sentence findings required by R.C. 2929.14(C)(4). Halbert's arguments also do not
contest whether, under R.C. 2953.08(G)(2)(b), the record supports the trial court's
consecutive sentence findings made under R.C. 2929.14(C)(4). Therefore, because
these were the only two means the legislature provided to defendants like Halbert to
challenge a trial court's imposition of consecutive sentences on appeal, neither of which
Halbert raised in this case, Halbert's claim that it was error for the trial court to impose
consecutive sentences upon remand from this court in [CITATION] lacks merit. Accordingly,
finding no merit to Halbert's claim raised herein, Halbert's single assignment of error lacks
merit and is overruled.
{¶ 10} Judgment affirmed.
[SEGMENT 2]
HENDRICKSON and BYRNE, JJ., concur.
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-07-011
: OPINION
- vs -
/29/2024
:
JOHN W. SPIRES II, :
Appellant. :
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. CRI2020-2138
Zachary A. Corbin, Brown County Prosecuting Attorney, and Mary McMullen, Assistant
Prosecuting Attorney, for appellee.
Christopher Bazeley, for appellant.
BYRNE, J.
{¶ 1} John W. Spires II appeals from the sentence imposed by the Brown County
Court of Common Pleas. For the reasons discussed below, we affirm.
I. Factual and Procedural Background
{¶ 2} In July 2020, a Brown County grand jury returned a multi-count indictment
against Spires. Relevant to this appeal, the grand jury charged Spires with three counts Brown CA2023-07-011
of first-degree felony felonious assault (counts four, five, and six) and one count of third-
degree felony discharge of a firearm on or near prohibited premises (count seven).
{¶ 3} The charges arose following an incident in and around Spires' home in
Brown County on June 22, 2020, in which Spires brandished an AR-15 style firearm and
fired multiple gunshots towards three Brown County Sheriff's Office law enforcement
officers⎯Deputy Brandon Asbury, Deputy Michael Myers, and Corporal Ryan Wedmore.
Spires' attack eventually concluded after one of the officers shot Spires in the hip and leg.
Spires surrendered before he bled out.
{¶ 4} In April 2022, a jury found Spires guilty of the four charged counts
referenced above. In May 2022, the trial court sentenced Spires to serve a total,
aggregate term of a mandatory minimum 18 years in prison, less 672 days of jail-time
credit. In so doing, the trial court ordered Spires to serve consecutive mandatory prison
sentences of seven, seven, and four years for the three counts of first-degree felony
felonious assault, with a concurrent 24-month prison term for the third-degree felony
count of discharge of a firearm on or near prohibited premises.
{¶ 5} In June 2022, Spires appealed his sentence. Spires argued that the trial
court erred in imposing a mandatory prison time sentence. The state conceded error.
We sustained Spires' appeal, finding that R.C. 2903.11(D)(1)(b) provided that a trial court
shall impose a mandatory prison term only if the peace officer suffered "serious physical
harm" as a result of the offense and that the record was silent as to whether any of the
officers suffered serious physical harm. [CITATION]
{¶ 6} We reversed and remanded for resentencing. [CITATION] We remanded with
instructions that the court give the state the opportunity to develop the record as it relates
to harm suffered by the three officers. Id. at ¶ 14. We also instructed the trial court to
Brown CA2023-07-011
"comply" with the decision of the Ohio Supreme Court in [CITATION] ("Gwynne IV"),1 which at the time was controlling precedent
requiring that "when a trial court 'makes the statutory findings under R.C. 2929.14(C)(4)
for consecutive sentences, it must consider the number of sentences that it will impose
consecutively along with the defendant's aggregate sentence that will result.'" Spires at
¶ 15, quoting [CITATION] at ¶ 12.
{¶ 7} On remand, the court held a bifurcated sentencing hearing. On the first day
of the hearing, the three officers testified concerning how Spires' actions on June 22,
2020, affected them personally and professionally. On the second day of the hearing,
Spires' attorney presented argument in mitigation. Afterwards, the state argued its
position and requested that the court impose the same prison term it had previously
imposed. The state also read into the record letters from two of the officers' wives. The
letters described how Spires' actions had affected their husbands and their families.
{¶ 8} Thereafter, the court imposed sentence. As to count four, the court imposed
an indefinite prison term consisting of a minimum of seven years and a maximum of ten
and one-half years in prison. As to count five, the court imposed a prison term of seven
years. As to count six, the court imposed a prison term of four years. And as to count
seven, the court imposed a prison term of 24 months.
{¶ 9} The court then stated the following concerning its decision to impose
consecutive sentences:
The Court, at this point in time, does find that consecutive
sentences are necessary to protect the public from future
crime in order to punish the offender, that they are not
disproportionate to the seriousness of the offender's conduct
and the danger the offender poses to the public. And that, at
1 We refer to this case as Gwynne IV because there have been multiple Gwynne decisions, two of which
are relevant to our analysis in this appeal. The other Gwynne decision⎯[CITATION]⎯will be discussed below.
Brown CA2023-07-011
least, two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by
those multiple offenses were so [great] or unusual that no
single prison term for these offenses and course of conduct
adequately * * * reflects the seriousness.
The Court also has a responsibility to protect, not only, the
public from you but similarly situated people who think it's a
good idea to do what you did. The Court, at this point in time,
will run Count Four, Five, and Six consecutive to each other.
Count Seven will run concurrent with each other.
{¶ 10} The court subsequently issued a sentencing entry memorializing its
sentence. Spires appealed and raised one assignment of error.
II. Law and Analysis
{¶ 11} Spires' assignment of error states:
THE TRIAL COURT ERRED IN ORDERING THAT THE
PRISON TERMS OF THREE OUT OF THE FOUR
CONVICTIONS BE SERVED CONSECUTIVELY.
{¶ 12} Spires argues that the record does not support the trial court's consecutive
sentence findings. Specifically, Spires argues that the record does not support the trial
court's conclusion that he is a danger to the public and that the harm caused by his
offenses was sufficiently great or unusual to justify consecutive sentences.
A. Applicable Law
. Required Findings for Consecutive Sentences
{¶ 13} When imposing consecutive sentences, a sentencing court is required "to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry * * *." [CITATION]. That statute states:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
[CITATION]
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶ 14} Stated more simply, to impose consecutive sentences, a sentencing court
must find (1) "that the consecutive service is necessary to protect the public from future
crime or to punish the offender[,]" (2) "that consecutive sentences are not disproportionate
to the seriousness of the offender's conduct and to the danger the offender poses to the
public[,]" and (3) that at least one of the three conditions described in R.C.
2929.14(C)(4)(a), (b), or (c) apply. R.C. 2929.14(C)(4).
. Standard of Review -- Felony Sentencing Appeals
[SEGMENT 3]
{¶ 15} R.C. 2953.08(G)(2) defines the standard of review for felony-sentencing
appeals. [CITATION]. As applicable here, R.C. 2953.08(G)(2) provides:
The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
===== End of Redacted Part ===== Brown CA2023-07-011
.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
{¶ 16} "The consecutive sentence statute, R.C. 2929.14(C)(4), is one of the
relevant statutes specifically mentioned in R.C. 2953.08(G)(2)." [CITATION] "Thus,
there are two ways that a defendant can challenge consecutive sentences on appeal."
[CITATION] "The defendant can argue either that the imposition of consecutive sentences is contrary to
law because the trial court failed to make the necessary consecutive sentence findings
required by R.C. 2929.14(C)(4), or that the record does not support the trial court's
consecutive sentence findings made under R.C. 2929.14(C)(4)." [CITATION], citing
[CITATION].
{¶ 17} After our remand of Spires' first appeal and our instruction to the trial court
to consider Gwynne IV, Slip Opinion No. 2022-Ohio-4607, the Ohio Supreme Court
issued its opinion in [CITATION], Slip Opinion No. 2023-Ohio-3851 ("Gwynne V"),
which reconsidered [CITATION] and vacated and superseded [CITATION]. In [CITATION],
the Ohio Supreme Court provided new guidance regarding consecutive sentences,
stating:
The plain language of R.C. 2953.08(G)(2) requires an
appellate court to defer to a trial court's consecutive-sentence
findings, and the trial court's findings must be upheld unless
those findings are clearly and convincingly not supported by
the record.
Id. at ¶ 5. Because [CITATION] is now controlling precedent with regard to our review of
consecutive sentences, not [CITATION], we will conduct our review of Spires' consecutive
sentences pursuant to the standard we just quoted, and we will not apply de novo review
Brown CA2023-07-011
as Spires—relying on superseded, no-longer-controlling language in Gwynne IV—urges.
. Analysis
{¶ 18} In this appeal, Spires does not dispute that the trial court made the
consecutive sentence findings required by R.C. 2929.14(C)(4). Spires therefore
concedes that the trial court's decision to impose consecutive sentences was not clearly
and convincingly contrary to law under R.C. 2953.08(G)(2)(b). [CITATION], ¶ 23, citing [CITATION], ¶ 13.
{¶ 19} Instead, Spires argues⎯pursuant to R.C. 2953.08(G)(2)(a)⎯that the
record does not support the trial court's consecutive sentence findings under R.C.
2929.14(C)(4). Specifically, Spires challenges the trial court's findings that consecutive
service is necessary to protect the public from future crime or to punish Spires, pursuant
to R.C. 2929.14(C)(4), and that the harm caused by Spires' conduct was so great or
unusual that no single prison term adequately reflects the seriousness of Spires' conduct,
pursuant to R.C. 2929.14(C)(4)(b).
{¶ 20} We have reviewed the record of the sentencing hearing, the victim impact
testimony, and the letters from the victims' wives. Based on that review, we do not find
that the trial court's findings challenged by Spires are clearly and convincingly not
supported by the record.
{¶ 21} To the contrary, the trial court's findings in this regard are well supported by
the record. First, regarding R.C. 2929.14(C)(4), Spires argues that there was "no basis"
for the trial court to find that he is a threat to the public. We disagree. The record reflects
that Spires wanted police to kill him. He brandished a high-powered rifle and fired shots
toward multiple responding officers. Anyone who is willing to violently attack police in an
attempt to end their own life is a danger to the public at large.
Brown CA2023-07-011
{¶ 22} Second, regarding R.C. 2929.14(C)(4)(b), i.e., Spires' claim that the harm
caused by his conduct was not so great or unusual as to justify consecutive sentences,
Spires focuses on the fact that none of the officers involved were struck by any of his
gunfire and none suffered any physical injuries. However, the testimony presented at the
sentencing hearing demonstrated the great and unusual harm inflicted on the officers
because of Spires' conduct.
{¶ 23} Former sheriff's deputy Michael Myers testified that he was a law
enforcement officer for eight years. He had a love and passion for law enforcement. The
incident with Spires "changed that." After the incident, he found it very difficult to work as
a law enforcement officer. He could not bear the thought of never seeing his family again.
He no longer works as a law enforcement officer.
{¶ 24} Myers testified that he sometimes thinks about reapplying to work in law
enforcement, and had in fact reapplied, unsuccessfully. He testified that he is not sure
whether he could do the job. Three years after the incident, he stated that he did not
know what his career path would be at that point.
{¶ 25} The events of June 22, 2020, continued to affect him on a daily basis. He
was battling with anxiety and anger stemming from the incident. His drinking
"accelerated" after the incident. If he was not at work, he was drinking "a lot." He tried
to avoid driving by the area where the incident occurred. He had recently begun to see
a therapist to help him with his anxiety and anger.
{¶ 26} Officer Ryan Wedmore testified that he was now working for the Loveland,
Ohio Police Department. The incident with Spires affected him personally and
professionally. He explained that he gets startled at loud noises and gunfire. He recalled
an incident where his daughter dropped something loud in their home and he "zoned" out
for a couple seconds. He finds himself crying for "no reason." He also tries to avoid the
Brown CA2023-07-011
location of the incident and one time when he did drive by the area he became very
anxious. He began drinking "a lot" after the incident.
{¶ 27} Officer Brandon Asbury testified that he also moved to the Loveland, Ohio
Police Department. Officer Asbury testified that in the moment of the incident, he felt
"terrible" because he thought he had killed Spires. The event had affected him
professionally in that it took all his "confidence" and "passion" about his law enforcement
career away. It affected him enough that if he could find a different career he would do
so. Personally, he stated that he no longer talks much with friends and family and had
lost a lot of sleep. He estimated he had nightmares about the incident, or being in a
similar incident, at least twice a week. Alcohol has also been an issue for him and he had
seen a therapist.
{¶ 28} The letters of the two wives that were read at sentencing corroborated the
victims' testimony that Spires' actions had a profound detrimental impact on their lives.
One wife relayed that a year after the incident, she and her husband married. On that
day, one of the comments he made to her was how the incident with Spires had changed
him. She explained that her point was that even on her wedding day, her husband was
still thinking about the incident with Spires. Another wife stated that her husband was
now on daily medication as a result of the incident.
{¶ 29} Spires' actions resulted in grave, likely lifelong consequences for the three
law enforcement officers. Consecutive sentences were well justified. Spires has not
demonstrated that the court's consecutive sentence findings were clearly and
convincingly not supported by the record, which he must demonstrate for us to reverse
his sentence under R.C. 2953.08(G)(2)(a). [CITATION], at ¶ 5. We overrule Spires' sole assignment of error.
[CITATION]
{¶ 30} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
- 10 -
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112574
v. :
[SEGMENT 4]
TIMOTHY M. LEWIS, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 11, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641305-A
Appearances:
Flowers & Grube and Louis E. Grube, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christine M. Vacha, Assistant Prosecuting
Attorney, for appellee.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Timothy M. Lewis, Sr. (“Lewis”) appeals the
imposition of consecutive sentences arising from guilty pleas and convictions. We
affirm the trial court’s judgment. I. Background
On June 27, 2019, Lewis was indicted for the following:
Count 1, rape, felony of the first degree, in violation of [CITATION]
with a sexually violent predator specification attached.
Count 2, gross sexual imposition, a felony of the third degree, in
violation of [CITATION] with a sexually violent predator
specification attached.
Count 3, rape, a felony of the first degree, in violation of [CITATION]
with a sexually violent predator specification
attached.
Count 4, gross sexual imposition, a felony of the third degree, in
violation of [CITATION] with a sexually violent predator
specification attached.
The charges arose from allegations of sexual conduct involving three
minor relatives. On July 17, 2019, 26-year-old Lewis was granted a bond reduction
and placed on a GPS monitor. On January 31, 2022, the parties set a jury trial date
for May 9, 2022. In February 2022, Lewis was in court for GPS violations, several
failures to report, passing through the exclusion zones where the alleged victims
resided, making unauthorized stops on the way to work, and testing positive for
marijuana and alcohol. His bond conditions were reinstated, and GPS reinstalled.
The trial court was advised of Lewis’s struggle to catch the bus to his
temporary job in Solon and maintain cell phone service due to budget constraints.
Lewis explained that he was working on the marijuana problem but used it to deal
with emotional issues. The probation officer advised Lewis to speak with a
counselor regarding his dependency. Lewis’s stops at the store on the way to work
were to use his cash card to obtain bus fare. Lewis also advised that the occasional vehicular passes through
exclusion zones occurred unintentionally when he was able to get rides to work.
Lewis also explained he had only been informed of one exclusion zone and that one
of the zone violations listed were for an area where the alleged victim no longer
resided. Lewis accepted the trial court’s offer to test negative for marijuana during
a 45-day day window rather than wait in jail.
On March 21, 2022, Lewis appeared in court to address additional
GPS violations. The 34 minutes spent at the basketball court located underneath his
grandmother’s residence with whom he resided was for a family balloon release for
a brother who had committed suicide several years earlier. The two nine-minute
periods at the basketball court on two evenings were to take the dog out. Two eight-
minute stops on two days at 3:06 p.m. occurred when Lewis received a ride home by
a coworker who stopped at their residence on the way. He also went to the basketball
court two other occasions for about nine minutes at approximately 7:40 p.m. Lewis
explained that the first basketball court visit was for a family balloon release on the
third anniversary of Lewis’s brother’s suicide and the other two times to take the dog
out. The two private residence stops at 3:06 p.m. occurred on days when the
coworker who gave Lewis a ride from work stopped at their residence on the way.
The trial court noted that Lewis had been on house arrest for two and one-half years
and determined that Lewis’s movement would no longer be restricted except for the
exclusion zones. On May 9, 2022, the parties appeared for trial. Defense counsel
explained that he was waiting for a medical certification crucial to Lewis’s defense
and requested a continuance. The state advised that one of the alleged victims and
the victim’s parent were not being cooperative so Counts 1 and 4 would probably be
dismissed. Trial was rescheduled for August 1, 2022.
On June 6, 2022, Lewis appeared in court to answer the state’s claim
that Lewis rode through part of an exclusion zone that the state said “was not an
intentional stop.” Since Lewis was informed of the exclusion area on May 20, 2022,
he was arrested. The state could not tell the trial court where Lewis was at within
the zone or his proximity to the excluded source, and he was at home by the time of
his arrest. Lewis had not tested positive for marijuana since early 2022. The trial
court decided to remove the GPS monitor that Lewis had been wearing for almost
three years, though he remained under supervised release.
On August 1, 2022, the defense requested another continuance as co-
counsel was in trial. Trial was rescheduled for the tenth time to October 17, 2022.
On October 17, 2022, Lewis failed to appear by 10:09 a.m. for the 10:00 a.m. trial
and a capias was issued. On November 1, 2022, Lewis appeared and advised the
trial court that when his shift in Solon ended at 6:45 a.m., his wallet was missing
from his locker and his cell phone screen was broken. He walked home from Solon
to Cleveland and emailed his attorney two days later. Counsel reminded the trial
court that Lewis had always been communicative and attendant and appeared of his
own volition. Lewis was taken into custody. On February 1, 2023, Lewis entered a guilty plea to Counts 2 and 3,
as amended, for gross sexual imposition, a third-degree felony under R.C.
2907.05(A)(4). Counts 1 and 4 were nolled. Lewis was referred for a presentence
investigation (“PSI”).
At the March 1, 2023 sentencing, Lewis cited mitigating factors for
the trial court’s consideration. Lewis was one and one-half years old in 1995 when
he and his eight siblings were placed in separate foster homes due to their mother’s
struggles with drug issues. Lewis returned to his mother’s home in 2002 and at the
age of 13 helped to run the household to prevent him and his siblings from being
removed again. He was diagnosed with post-traumatic stress disorder and anxiety
and used marijuana and alcohol as coping mechanisms. Lewis had no criminal
record. His brother, who was still in the foster care system at the time of trial, was
also charged with committing similar offenses involving the victims. His case was
pending before a different judge.
One of Lewis’s brothers committed suicide a few years prior to trial,
an uncle died of a heart attack, and his mother and grandmother suffered strokes.
Lewis paid rent to help his grandmother and worked consistently prior to entering
a plea. Each incident occurred a single time. The affected family members desired
to put the acts behind them that occurred several years before the 2019 indictments.
Lewis decided to enter a plea because the matter had been going on for three years
and he was tired of fighting it. The defense requested a community-control sanction
with substance abuse treatment and counseling. On March 2, 2023, Lewis was sentenced to five years on Count 2 and
three years on Count 3 to be served consecutively for a total term of eight years and
declared to be a Tier II sex offender. Lewis appeals.
II. Assignment of Error
Lewis’s single assignment of error is that the trial court committed
plain error by imposing consecutive sentences because the record clearly and
convincingly does not support any of the necessary factual findings.
III. Discussion
“It is well-settled that a sentence that is contrary to law is plain error
and an appellate court may review it for plain error.” [CITATION], ¶ 17, citing [CITATION], ¶ 9, citing [CITATION], ¶ 6. A trial court’s failure to make the
required R.C. 2929.14(C)(4) consecutive-sentence findings is contrary to law which
constitutes plain error. Id., citing [CITATION], ¶ 15.
An appellate court reviews felony sentences under the standard set
forth in R.C. 2953.08(G)(2). [CITATION], ¶ 16. Consecutive sentences may be challenged by arguing (1) the
sentence is contrary to law due to the trial court’s failure to make the requisite R.C.
2929.14(C)(4) requirements pursuant to R.C. 2953.08(G)(2)(b); or (2) the record
“‘clearly and convincingly’” does not support the court’s R.C. 2929.14(C)(4) findings pursuant to R.C. 2953.08(G)(2)(a). [CITATION], citing [CITATION], 15
N.E.3d 892, ¶ 16 (8th Dist.).
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
[SEGMENT 5]
[CITATION], ¶ 22, quoting [CITATION].
A trial court is not required to recite the statutory language verbatim,
nor is it required to state its reasons to support its findings “‘“provided that the
necessary findings can be found in the record and are incorporated in the sentencing
entry.””’ [CITATION], at ¶ 17,
quoting [CITATION], ¶ 176,
quoting [CITATION], ¶ 37.
The trial court stated:
The problem when we’re dealing with victims who are children is that
the impact on those victims is great. I mean, this is something that
they’re going to live with and something that’s going to keep replaying
itself in their head.
So while I knew that I was going to send you to prison, the question is
for how long. I understand that you don’t have a prior record and I
understand that you’re all family, and I know this is tearing the family
apart, because, on one hand, again, they want you to pay, and another
hand, you’re the brother, you’re the father—not the father, the son, the
grandson, et cetera. But I just feel that this is serious, and I don’t know—I don’t think it
deserves a slap on the wrist. I just don’t. I think that this is something
that—I understand your background as well when you’re taken from
your own parent at a young age and you’re put into the system. I
understand that there is a lot of trauma in your life as well. But now
there is trauma for these two kids, especially the young girl as well as
the guy. Even though he is older now and he was older at the time, it
still is something that he won’t forget.
[CITATION].
The trial court continued:
With that being said, as to amended Count 2, the Defendant is
sentenced to 5 years in prison.
As to the amended Count 3, I am going to sentence you to 3 years in
prison. That time will run consecutive for a total time of 8 years in
prison.
The Court finds that consecutive sentences are necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the dangers it would pose to the public.
Furthermore, the Court finds that at least two of the multiple offenses
were committed as part of one or more courses of conduct and that the
harm caused by the abuse on these children is great, and no single
prison term for any of the offenses committed as part of the conduct
adequately reflects the seriousness of the offender’s conduct.
The Court has taken into consideration the fact that he has no prior
record. That is why the sentence is as it is and not more.
(Emphasis added.) [CITATION].
Lewis expressed remorse to the trial court. The trial court heard at
sentencing, and the record contains the same in the PSI, the details of the sexual
misconduct and the impact that Lewis’s behavior had on the victims. The fact that familial relationships were involved has been painful and traumatic for the victims
and the family members.
After conducting a thorough review of the record, this court does not
find that the record clearly and convincingly fails to support the trial court’s findings.
We therefore find that Lewis has not demonstrated plain error. The assignment of
error is overruled.
IV. Conclusion
The trial court’s judgment is affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, A.J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION);
MARY J. BOYLE, J., CONCURS WITH THE SEPARATE CONCURRING IN
JUDGMENT ONLY OPINION KATHLEEN ANN KEOUGH, A.J., CONCURRING IN JUDGMENT ONLY:
I concur with the decision affirming Lewis’s sentence that included
consecutive sentences. But I write separately to express my opinion that a defendant
does not need to object to the trial court’s imposition of consecutive sentences to
preserve the issue on appeal.
In [CITATION], the lead opinion addressed and sustained Beasley’s challenge to the
imposition of consecutive sentences even though he did not object to the trial court
imposing consecutive sentences. Id. at ¶ 252-262. The dissenting opinion explicitly
pointed out that because the defendant did not object, he had waived all but plain
error. Id. at ¶ 268-280 (DeWine, J., dissenting). Because the Beasley majority did
not find that this impairment hindered the court’s review, I believe that the court
implicitly held that a defendant does not need to object to a trial court’s imposition
of consecutive sentences.
Additionally, the Twelfth District in [CITATION], recently addressed this issue when
the state, relying on [CITATION], suggested that the court’s standard of review is limited to plain
error because the defendant did not object after consecutive sentences were
imposed.
The relevant paragraph in [CITATION] cites another capital case, [CITATION], [¶ 152],
Hunter, in turn, cites a third capital case, [CITATION]. 404, 2008-Ohio-2, 880 N.E.2d 31, [¶ 377]. In [CITATION], the appellant
argued that a trial court erred by imposing consecutive sentences for
noncapital counts in a capital case, and the supreme court determined
that plain error review applied because the appellant failed to raise this
argument at the sentencing hearing. [CITATION] at ¶ 166. In [CITATION], the
supreme court applied plain error review to the appellant’s argument
that the imposition of consecutive sentences in a capital case was
unconstitutional. [CITATION] at ¶ 151-155. In [CITATION], the supreme court did
not even mention plain error in the portion cited in [CITATION], but instead
stated that when the appellant objected to consecutive sentences but
failed to raise the specific constitutional arguments he raised on appeal,
those constitutional arguments were forfeited. [CITATION] at ¶ 377.
While all three of these cases discuss either plain error review or
forfeiture in the context of a challenge to consecutive sentences, none
of these cases involve the type of argument before us today — that is,
none involve a challenge to R.C. 2929.14(C)(4) consecutive sentence
findings under R.C. 2953.08(G)(2). It is not clear that the Ohio
Supreme Court in [CITATION], or [CITATION] intended to suggest that
an offender who fails to object to consecutive sentences after they are
imposed is limited to plain error review when the offender brings an
appeal challenging R.C. 2929.14(C)(4) consecutive sentence findings
under R.C. 2953.08(G)(2).
Id. at ¶ 26-28.
I agree with the [CITATION] analysis, and based on [CITATION], it is my
opinion that a defendant does not need to object to preserve appellate review
beyond that of plain error when challenging the consecutive-sentence findings
under R.C. 2929.14(C)(4). Because the majority opinion implies otherwise, I
respectfully concur in judgment only.
[Cite as [CITATION],
2023-Ohio-4788.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 112472 and 112871
v. :
KENNETH NORRIS, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: December 28, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-22-674411-A and CR-22-673597-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon K. McNally and Jillian Piteo,
Assistant Prosecuting Attorneys, for appellee.
Robert A. Dixon, for appellant.
ANITA LASTER MAYS, A.J.:
I. Introduction
Defendant-appellant Kenneth Norris, Jr. (“Norris”) appeals the
imposition of consecutive sentences for his criminal convictions in this consolidated appeal. We vacate the trial court’s judgment and remand it for further proceedings
pursuant to this opinion.
On January 11, 2023, Norris pleaded guilty to the following offenses:
[SEGMENT 6]
Cuyahoga C.P. No. CR-22-673597: gross sexual imposition, a third-
degree felony, R.C. 2907.05(A)(4), as amended in the indictment.
Cuyahoga C.P. No. CR-22-674411: having weapons while under
disability, a third-degree felony, R.C. 2923.13(A)(2), as charged in
Count 1 of the indictment. Aggravated menacing, a first-degree
misdemeanor, R.C. 2903.21(A), as charged in Count 2 of the
indictment.
Norris was sentenced to four years in CR-22-673597. In CR-22-
674411, Norris was sentenced to 12 months on Count 1 and 180 days on Count 2, to
run concurrently to each other. The sentences in CR-22-673597 and CR-22-674411
were to be served consecutively to each other.
Norris contends that the trial court erred in imposing consecutive
sentences without finding on the record that consecutive sentences were not
disproportionate to the danger that the appellant posed to the public.
“It is well-settled that a sentence that is contrary to law is plain error,
and an appellate court may review it for plain error.” [CITATION]. Thus, the trial court’s failure to make
the required R.C. 2929.14(C)(4) consecutive-sentence findings is contrary to law,
which constitutes plain error. [CITATION]. “R.C. 2953.08(G)(2) provides that when reviewing felony sentences,
a reviewing court may overturn the imposition of consecutive sentences where the
court ‘clearly and convincingly’ finds that (1) ‘the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4),’ or (2) ‘the sentence is
otherwise contrary to law.’” [CITATION]
To impose consecutive sentences, the trial court must make the
specific findings set forth in the statute: “consecutive sentence is necessary to protect
the public from future crime or to punish the offender”; “consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public.” R.C. 2929.14(C)(4). At a minimum, one of the
following is required:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
[CITATION] An appellant “can challenge consecutive sentences on appeal in two
ways. First, the defendant can argue that consecutive sentences are contrary to law
because the court failed to make the necessary findings required by R.C.
2929.14(C)(4).” [CITATION], ¶ 38, citing R.C. 2953.08(G)(2)(b); [CITATION], ¶ 16 (8th Dist.). “Second, the defendant can argue that the record does not
support the court’s findings made pursuant to R.C. 2929.14(C)(4).” Id., citing R.C.
2953.08(G)(2)(a); [CITATION] at id. Norris argues the former.
“R.C. 2953.08(G)(2) provides that when reviewing felony sentences,
a reviewing court may overturn the imposition of consecutive sentences where the
court ‘clearly and convincingly’ finds that (1) ‘the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4),’ or (2) ‘the sentence is
otherwise contrary to law.”’ [CITATION], ¶ 18.
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
[CITATION], ¶ 22,
quoting [CITATION], paragraph three
of the syllabus.
A trial court is not required to recite verbatim the statutory language,
nor is it required to state its reasons to support its findings “‘“provided that the necessary findings can be found in the record and are incorporated in the sentencing
entry.””’ [CITATION], ¶ 17, quoting
[CITATION], ¶ 176, quoting
[CITATION], ¶ 37.
The trial court recited Norris’s prior issues.
Thank you. In case number 654165, that’s the probation case. You
were on probation for attempted felonious assault, felony of the third
degree. That was count 1. Domestic violence, a felony of the fourth
degree, count 5. Endangering children a misdemeanor of the first
degree, counts 8 and 9.
The Court placed you on probation and it appears you violated on more
than one time. This would have been not the first time you violated,
but the first to my knowledge because this happened in April, so I
wasn’t aware of that.
You had a positive drug screen on May 5, 2022. We held a hearing. You
were on GPS monitoring. You went through the victim’s zone on
6/13/2022. Apparently, the victim no longer lived at that residence. I
released you.
As of 8/31 you were remanded, so you will receive credit for time
served. You have been in jail since 8/31.
You’re found to be in violation in case number 654165. Probation is
terminated on that case.
I have had an opportunity to look at and review the pre-sentence
investigation report for that case, which was less than a year old. It
reveals you have quite a lengthy criminal history including an
adjudication when you were delinquent in 2010 for a gross sexual
imposition case, several domestic violence cases, some of which have
been dismissed.
There’s another sex offense back in 2015 though. You were found not
guilty on that verdict of not guilty to an aggravated robbery in 2018 with
firearm specifications. Then you picked up the cases with me and then you picked up these
two new cases. I do not find you’re a good candidate for probation. You
were on probation for all of the reasons that [defense counsel] was
asking me to put you on probation for today. That did not -- that path
did not seem to work very well. You did pick up two new cases.
Tr. 32-34.
The trial court also announced:
In case number 673597, count 1, four years. For the reasons that I have
stated, that you were on probation at the time the offenses were
committed, your record, I do not feel a single sentence will protect the
public, and am going to impose a consecutive sentence, and I take into
consideration the probation case.
I’m not imposing a sentence on that, but I am imposing a consecutive
sentence on -- I do find also your criminal history shows a consecutive
term is necessary to protect the public.
Tr. 35.
The record contains Norris’s criminal history, probation violations,
and the nature of the crimes. However, the trial court failed to make the requisite
disproportionate findings under R.C. 2929.14(C)(4) according to [CITATION]. For that reason, this court vacates
Norris’s consecutive sentences and remands the matter for the trial court to address
whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so,
to make the required findings on the record and incorporate those findings in the
sentencing journal entry pursuant to [CITATION].
Norris has demonstrated plain error. The assignment of error is
sustained. II. Conclusion
The trial court’s judgment is vacated and remanded for proceedings
pursuant to this opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that appellant recover from appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY
(WITH SEPARATE OPINION);
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY KATHLEEN ANN KEOUGH, J., CONCURRING IN JUDGMENT ONLY:
[SEGMENT 7]
I concur with the decision to vacate Norris’s consecutive sentences
and remand the matter to the trial court. But I write separately to express my
opinion that a defendant does not need to object to the trial court’s imposition of
consecutive sentences to preserve the issue on appeal.
In [CITATION], the lead opinion addressed and sustained Beasley’s challenge to the
imposition of consecutive sentences even though he did not object to the trial court
imposing consecutive sentences. Id. at ¶ 252-262. The dissenting opinion explicitly
pointed out that because the defendant did not object, he had waived all but plain
error. Id. at ¶ 268-280 (DeWine, J., dissenting). Because the Beasley majority did
not find that this impairment hindered the court’s review, I believe that the court
implicitly held that a defendant does not need to object to a trial court’s imposition
of consecutive sentences.
Additionally, the Twelfth District in [CITATION], recently addressed this issue when
the state, relying on [CITATION], suggested that the court’s standard of review is limited to plain
error because the defendant did not object after consecutive sentences were
imposed.
The relevant paragraph in Whitaker cites another capital case, [CITATION],
Hunter, in turn, cites a third capital case, [CITATION].
====== End of Part of Court Ruling ====== 404, 2008-Ohio-2, 880 N.E.2d 31, [¶ 377]. In [CITATION], the appellant
argued that a trial court erred by imposing consecutive sentences for
noncapital counts in a capital case, and the supreme court determined
that plain error review applied because the appellant failed to raise this
argument at the sentencing hearing. [CITATION] at ¶ 166. In [CITATION], the
supreme court applied plain error review to the appellant’s argument
that the imposition of consecutive sentences in a capital case was
unconstitutional. [CITATION] at ¶ 151-155. In [CITATION], the supreme court did
not even mention plain error in the portion cited in [CITATION], but instead
stated that when the appellant objected to consecutive sentences but
failed to raise the specific constitutional arguments he raised on appeal,
those constitutional arguments were forfeited. [CITATION] at ¶ 377.
While all three of these cases discuss either plain error review or
forfeiture in the context of a challenge to consecutive sentences, none
of these cases involve the type of argument before us today — that is,
none involve a challenge to R.C. 2929.14(C)(4) consecutive sentence
findings under R.C. 2953.08(G)(2). It is not clear that the Ohio
Supreme Court in [CITATION], or [CITATION] intended to suggest that
an offender who fails to object to consecutive sentences after they are
imposed is limited to plain error review when the offender brings an
appeal challenging R.C. 2929.14(C)(4) consecutive sentence findings
under R.C. 2953.08(G)(2).
Id. at ¶ 26-28.
I agree with the [CITATION] analysis, and based on Beasley, it is my
opinion that a defendant does not need to object to preserve appellate review beyond
that of plain error when challenging the consecutive-sentence findings under R.C.
2929.14(C)(4). Because the majority opinion finds otherwise, I respectfully concur
in judgment only.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-01-003
: OPINION
- vs -
/1/2024
:
EDWARD HALBERT, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 20CR37130
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Christopher Bazeley, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Edward Halbert, appeals the decision of the Warren County
Court of Common Pleas ordering the 15-year-to-life prison sentence he received for
murdering his cellmate at the Warren County Correctional Institution to be served
consecutively to the prison sentence he was currently serving at the time of the murder. Warren CA2024-01-003
For the reasons outlined below, we affirm the trial court's decision.
{¶ 2} On March 1, 2023, following a three-day jury trial, Halbert was found guilty
of murdering his cellmate, Delvin Bunton, while both men were inmates incarcerated at
the Warren County Correctional Institution.1 Upon the return of the jury's verdict, the trial
court issued a decision sentencing Halbert to serve a term of 15 years to life in prison for
Bunton's murder. The trial court ordered that 15-year-to-life prison sentence be served
consecutively to the prison sentence that Halbert was currently serving at the time of
Bunton's murder. Halbert appealed the jury's verdict and the trial court's sentence. This
court affirmed the jury's verdict finding Halbert guilty of murdering Bunton, but reversed
the trial court's decision to impose consecutive sentences. [CITATION]
{¶ 3} In so doing, this court noted that the record did not "reflect that the court
addressed the required proportionality finding or engaged in the proportionality analysis
and found that the seriousness of Halbert's conduct and the danger he posed to the public
justified a consecutive sentence." Id. at ¶ 35. This court therefore vacated that portion
of the trial court's judgment imposing consecutive sentences and remanded the matter to
the trial court for resentencing. On remand, we instructed the trial court that it:
shall consider whether consecutive sentences are appropriate
under R.C. 2929.14(C)(4), and if so, shall make the required
statutory findings on the record at resentencing and
incorporate its findings into a sentencing entry.
Id. at ¶ 38.
{¶ 4} On January 22, 2024, the trial court held the necessary resentencing
1. The record indicates that prior to murdering Bunton, Halbert had been in prison for over 40 years, first
beginning in the early 1980's, on charges of robbery, aggravated robbery, attempted rape, rape, and
assault.
Warren CA2024-01-003
hearing as instructed by this court in [CITATION]. This ultimately resulted in the trial court
sentencing Halbert to the same 15-year-to-life prison sentence that the court had
originally imposed. This time, however, the trial court made the necessary consecutive
sentence findings as required by R.C. 2929.14(C)(4). In so doing, the trial court stated:
Okay. Defendant's history demonstrates consecutive
sentences are necessary to * * * protect the public from future
crime by the defendant. That the sentences are consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger of the offender⎯that the
offender poses to the public. I've considered that. And, again,
the finding that his history demonstrates consecutive
sentences are necessary.
Upon the conclusion of the trial court's resentencing hearing, the trial court filed its
judgment entry of sentence. Incorporated into that entry were the trial court's consecutive
sentence findings set forth above.
{¶ 5} On January 23, 2024, Halbert filed a notice of appeal. Following briefing
from both parties, the case was submitted to this court for consideration on May 22, 2024.
Halbert's appeal now properly before this court for decision, Halbert raises one
assignment of error for review. In that single assignment of error, Halbert argues the trial
court erred by imposing consecutive sentences upon remand in this case from [CITATION].
We disagree.
{¶ 6} "A felony sentence is reviewed under the standard set forth in R.C.
2953.08(G)(2)." [CITATION]. Pursuant to that
statute:
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court's standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action
authorized by this division if it clearly and convincingly finds
Warren CA2024-01-003
either of the following:
That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
.20 of the Revised Code, whichever, if any, is relevant;
That the sentence is otherwise contrary to law.
Therefore, given the plain language set forth in R.C. 2953.08(G)(2)(a) and (b), this court
may modify or vacate a felony sentence only if, by clear and convincing evidence, the
record does not support the trial court's findings under relevant statutes, or the sentence
is otherwise contrary to law. [CITATION]
{¶ 7} "The consecutive sentence statute, R.C. 2929.14(C)(4), is one of the
relevant statutes specifically mentioned in R.C. 2953.08(G)(2)." [CITATION] "Thus, there are two ways that a defendant can challenge
consecutive sentences on appeal." [CITATION] The defendant can argue that, pursuant to R.C. 2953.08(G)(2)(a), the record does not
support the trial court's consecutive sentence findings made under R.C. 2929.14(C)(4).
[CITATION] The defendant can also argue that,
pursuant to R.C. 2953.08(G)(2)(b), the imposition of consecutive sentences is contrary to
law because the trial court failed to make the necessary consecutive sentence findings
as required by R.C. 2929.14(C)(4). [CITATION] "These are the only two means that the legislature provided to defendants to challenge
their consecutive sentences on appeal." [CITATION]
{¶ 8} To support his claim that it was error for the trial court to impose consecutive
sentences upon remand in this case from Halbert I, Halbert initially argues that he "suffers
from severe mental health issues which cloud his judgment." Halbert also argues that
Warren CA2024-01-003
the evidence in this case reveals that the victim, Bunton, was not simply an "innocent
bystander who was attacked unprovoked." Halbert argues that the evidence instead
demonstrates that Bunton "participated in, as well as proposed," the "scheme" that
ultimately resulted in his death. That being, a plan for Halbert to assist Bunton in making
a fake suicide attempt so that Bunton could obtain a transfer to a different correctional
facility within Ohio.
{¶ 9} However, even if we were to ignore the fact that this court has already
rejected Halbert's claim that "the evidence shows that [he] merely intended to 'help'
Bunton by 'fak[ing] a suicide attempt, not to harm' him" when affirming the jury's verdict
finding Halbert guilty of murder in [CITATION] at ¶ 21-27 (12th Dist.),
neither of Halbert's arguments raised herein present any challenge to whether, in
accordance with R.C. 2953.08(G)(2)(b), the trial court made the necessary consecutive
sentence findings required by R.C. 2929.14(C)(4). Halbert's arguments also do not
contest whether, under R.C. 2953.08(G)(2)(b), the record supports the trial court's
consecutive sentence findings made under R.C. 2929.14(C)(4). Therefore, because
these were the only two means the legislature provided to defendants like Halbert to
challenge a trial court's imposition of consecutive sentences on appeal, neither of which
Halbert raised in this case, Halbert's claim that it was error for the trial court to impose
consecutive sentences upon remand from this court in [CITATION] lacks merit. Accordingly,
finding no merit to Halbert's claim raised herein, Halbert's single assignment of error lacks
merit and is overruled.
{¶ 10} Judgment affirmed.
[SEGMENT 2]
HENDRICKSON and BYRNE, JJ., concur.
[CITATION]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-07-011
: OPINION
- vs -
/29/2024
:
JOHN W. SPIRES II, :
Appellant. :
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. CRI2020-2138
Zachary A. Corbin, Brown County Prosecuting Attorney, and Mary McMullen, Assistant
Prosecuting Attorney, for appellee.
Christopher Bazeley, for appellant.
BYRNE, J.
{¶ 1} John W. Spires II appeals from the sentence imposed by the Brown County
Court of Common Pleas. For the reasons discussed below, we affirm.
I. Factual and Procedural Background
{¶ 2} In July 2020, a Brown County grand jury returned a multi-count indictment
against Spires. Relevant to this appeal, the grand jury charged Spires with three counts Brown CA2023-07-011
of first-degree felony felonious assault (counts four, five, and six) and one count of third-
degree felony discharge of a firearm on or near prohibited premises (count seven).
{¶ 3} The charges arose following an incident in and around Spires' home in
Brown County on June 22, 2020, in which Spires brandished an AR-15 style firearm and
fired multiple gunshots towards three Brown County Sheriff's Office law enforcement
officers⎯Deputy Brandon Asbury, Deputy Michael Myers, and Corporal Ryan Wedmore.
Spires' attack eventually concluded after one of the officers shot Spires in the hip and leg.
Spires surrendered before he bled out.
{¶ 4} In April 2022, a jury found Spires guilty of the four charged counts
referenced above. In May 2022, the trial court sentenced Spires to serve a total,
aggregate term of a mandatory minimum 18 years in prison, less 672 days of jail-time
credit. In so doing, the trial court ordered Spires to serve consecutive mandatory prison
sentences of seven, seven, and four years for the three counts of first-degree felony
felonious assault, with a concurrent 24-month prison term for the third-degree felony
count of discharge of a firearm on or near prohibited premises.
{¶ 5} In June 2022, Spires appealed his sentence. Spires argued that the trial
court erred in imposing a mandatory prison time sentence. The state conceded error.
We sustained Spires' appeal, finding that R.C. 2903.11(D)(1)(b) provided that a trial court
shall impose a mandatory prison term only if the peace officer suffered "serious physical
harm" as a result of the offense and that the record was silent as to whether any of the
officers suffered serious physical harm. [CITATION]
{¶ 6} We reversed and remanded for resentencing. [CITATION] We remanded with
instructions that the court give the state the opportunity to develop the record as it relates
to harm suffered by the three officers. Id. at ¶ 14. We also instructed the trial court to
Brown CA2023-07-011
"comply" with the decision of the Ohio Supreme Court in [CITATION] ("Gwynne IV"),1 which at the time was controlling precedent
requiring that "when a trial court 'makes the statutory findings under R.C. 2929.14(C)(4)
for consecutive sentences, it must consider the number of sentences that it will impose
consecutively along with the defendant's aggregate sentence that will result.'" Spires at
¶ 15, quoting [CITATION] at ¶ 12.
{¶ 7} On remand, the court held a bifurcated sentencing hearing. On the first day
of the hearing, the three officers testified concerning how Spires' actions on June 22,
2020, affected them personally and professionally. On the second day of the hearing,
Spires' attorney presented argument in mitigation. Afterwards, the state argued its
position and requested that the court impose the same prison term it had previously
imposed. The state also read into the record letters from two of the officers' wives. The
letters described how Spires' actions had affected their husbands and their families.
{¶ 8} Thereafter, the court imposed sentence. As to count four, the court imposed
an indefinite prison term consisting of a minimum of seven years and a maximum of ten
and one-half years in prison. As to count five, the court imposed a prison term of seven
years. As to count six, the court imposed a prison term of four years. And as to count
seven, the court imposed a prison term of 24 months.
{¶ 9} The court then stated the following concerning its decision to impose
consecutive sentences:
The Court, at this point in time, does find that consecutive
sentences are necessary to protect the public from future
crime in order to punish the offender, that they are not
disproportionate to the seriousness of the offender's conduct
and the danger the offender poses to the public. And that, at
1 We refer to this case as Gwynne IV because there have been multiple Gwynne decisions, two of which
are relevant to our analysis in this appeal. The other Gwynne decision⎯[CITATION]⎯will be discussed below.
Brown CA2023-07-011
least, two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by
those multiple offenses were so [great] or unusual that no
single prison term for these offenses and course of conduct
adequately * * * reflects the seriousness.
The Court also has a responsibility to protect, not only, the
public from you but similarly situated people who think it's a
good idea to do what you did. The Court, at this point in time,
will run Count Four, Five, and Six consecutive to each other.
Count Seven will run concurrent with each other.
{¶ 10} The court subsequently issued a sentencing entry memorializing its
sentence. Spires appealed and raised one assignment of error.
II. Law and Analysis
{¶ 11} Spires' assignment of error states:
THE TRIAL COURT ERRED IN ORDERING THAT THE
PRISON TERMS OF THREE OUT OF THE FOUR
CONVICTIONS BE SERVED CONSECUTIVELY.
{¶ 12} Spires argues that the record does not support the trial court's consecutive
sentence findings. Specifically, Spires argues that the record does not support the trial
court's conclusion that he is a danger to the public and that the harm caused by his
offenses was sufficiently great or unusual to justify consecutive sentences.
A. Applicable Law
. Required Findings for Consecutive Sentences
{¶ 13} When imposing consecutive sentences, a sentencing court is required "to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry * * *." [CITATION]. That statute states:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
[CITATION]
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
{¶ 14} Stated more simply, to impose consecutive sentences, a sentencing court
must find (1) "that the consecutive service is necessary to protect the public from future
crime or to punish the offender[,]" (2) "that consecutive sentences are not disproportionate
to the seriousness of the offender's conduct and to the danger the offender poses to the
public[,]" and (3) that at least one of the three conditions described in R.C.
2929.14(C)(4)(a), (b), or (c) apply. R.C. 2929.14(C)(4).
. Standard of Review -- Felony Sentencing Appeals
[SEGMENT 3]
{¶ 15} R.C. 2953.08(G)(2) defines the standard of review for felony-sentencing
appeals. [CITATION]. As applicable here, R.C. 2953.08(G)(2) provides:
The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
===== End of Redacted Part ===== Brown CA2023-07-011
.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
{¶ 16} "The consecutive sentence statute, R.C. 2929.14(C)(4), is one of the
relevant statutes specifically mentioned in R.C. 2953.08(G)(2)." [CITATION] "Thus,
there are two ways that a defendant can challenge consecutive sentences on appeal."
[CITATION] "The defendant can argue either that the imposition of consecutive sentences is contrary to
law because the trial court failed to make the necessary consecutive sentence findings
required by R.C. 2929.14(C)(4), or that the record does not support the trial court's
consecutive sentence findings made under R.C. 2929.14(C)(4)." [CITATION], citing
[CITATION].
{¶ 17} After our remand of Spires' first appeal and our instruction to the trial court
to consider Gwynne IV, Slip Opinion No. 2022-Ohio-4607, the Ohio Supreme Court
issued its opinion in [CITATION], Slip Opinion No. 2023-Ohio-3851 ("Gwynne V"),
which reconsidered [CITATION] and vacated and superseded [CITATION]. In [CITATION],
the Ohio Supreme Court provided new guidance regarding consecutive sentences,
stating:
The plain language of R.C. 2953.08(G)(2) requires an
appellate court to defer to a trial court's consecutive-sentence
findings, and the trial court's findings must be upheld unless
those findings are clearly and convincingly not supported by
the record.
Id. at ¶ 5. Because [CITATION] is now controlling precedent with regard to our review of
consecutive sentences, not [CITATION], we will conduct our review of Spires' consecutive
sentences pursuant to the standard we just quoted, and we will not apply de novo review
Brown CA2023-07-011
as Spires—relying on superseded, no-longer-controlling language in Gwynne IV—urges.
. Analysis
{¶ 18} In this appeal, Spires does not dispute that the trial court made the
consecutive sentence findings required by R.C. 2929.14(C)(4). Spires therefore
concedes that the trial court's decision to impose consecutive sentences was not clearly
and convincingly contrary to law under R.C. 2953.08(G)(2)(b). [CITATION], ¶ 23, citing [CITATION], ¶ 13.
{¶ 19} Instead, Spires argues⎯pursuant to R.C. 2953.08(G)(2)(a)⎯that the
record does not support the trial court's consecutive sentence findings under R.C.
2929.14(C)(4). Specifically, Spires challenges the trial court's findings that consecutive
service is necessary to protect the public from future crime or to punish Spires, pursuant
to R.C. 2929.14(C)(4), and that the harm caused by Spires' conduct was so great or
unusual that no single prison term adequately reflects the seriousness of Spires' conduct,
pursuant to R.C. 2929.14(C)(4)(b).
{¶ 20} We have reviewed the record of the sentencing hearing, the victim impact
testimony, and the letters from the victims' wives. Based on that review, we do not find
that the trial court's findings challenged by Spires are clearly and convincingly not
supported by the record.
{¶ 21} To the contrary, the trial court's findings in this regard are well supported by
the record. First, regarding R.C. 2929.14(C)(4), Spires argues that there was "no basis"
for the trial court to find that he is a threat to the public. We disagree. The record reflects
that Spires wanted police to kill him. He brandished a high-powered rifle and fired shots
toward multiple responding officers. Anyone who is willing to violently attack police in an
attempt to end their own life is a danger to the public at large.
Brown CA2023-07-011
{¶ 22} Second, regarding R.C. 2929.14(C)(4)(b), i.e., Spires' claim that the harm
caused by his conduct was not so great or unusual as to justify consecutive sentences,
Spires focuses on the fact that none of the officers involved were struck by any of his
gunfire and none suffered any physical injuries. However, the testimony presented at the
sentencing hearing demonstrated the great and unusual harm inflicted on the officers
because of Spires' conduct.
{¶ 23} Former sheriff's deputy Michael Myers testified that he was a law
enforcement officer for eight years. He had a love and passion for law enforcement. The
incident with Spires "changed that." After the incident, he found it very difficult to work as
a law enforcement officer. He could not bear the thought of never seeing his family again.
He no longer works as a law enforcement officer.
{¶ 24} Myers testified that he sometimes thinks about reapplying to work in law
enforcement, and had in fact reapplied, unsuccessfully. He testified that he is not sure
whether he could do the job. Three years after the incident, he stated that he did not
know what his career path would be at that point.
{¶ 25} The events of June 22, 2020, continued to affect him on a daily basis. He
was battling with anxiety and anger stemming from the incident. His drinking
"accelerated" after the incident. If he was not at work, he was drinking "a lot." He tried
to avoid driving by the area where the incident occurred. He had recently begun to see
a therapist to help him with his anxiety and anger.
{¶ 26} Officer Ryan Wedmore testified that he was now working for the Loveland,
Ohio Police Department. The incident with Spires affected him personally and
professionally. He explained that he gets startled at loud noises and gunfire. He recalled
an incident where his daughter dropped something loud in their home and he "zoned" out
for a couple seconds. He finds himself crying for "no reason." He also tries to avoid the
Brown CA2023-07-011
location of the incident and one time when he did drive by the area he became very
anxious. He began drinking "a lot" after the incident.
{¶ 27} Officer Brandon Asbury testified that he also moved to the Loveland, Ohio
Police Department. Officer Asbury testified that in the moment of the incident, he felt
"terrible" because he thought he had killed Spires. The event had affected him
professionally in that it took all his "confidence" and "passion" about his law enforcement
career away. It affected him enough that if he could find a different career he would do
so. Personally, he stated that he no longer talks much with friends and family and had
lost a lot of sleep. He estimated he had nightmares about the incident, or being in a
similar incident, at least twice a week. Alcohol has also been an issue for him and he had
seen a therapist.
{¶ 28} The letters of the two wives that were read at sentencing corroborated the
victims' testimony that Spires' actions had a profound detrimental impact on their lives.
One wife relayed that a year after the incident, she and her husband married. On that
day, one of the comments he made to her was how the incident with Spires had changed
him. She explained that her point was that even on her wedding day, her husband was
still thinking about the incident with Spires. Another wife stated that her husband was
now on daily medication as a result of the incident.
{¶ 29} Spires' actions resulted in grave, likely lifelong consequences for the three
law enforcement officers. Consecutive sentences were well justified. Spires has not
demonstrated that the court's consecutive sentence findings were clearly and
convincingly not supported by the record, which he must demonstrate for us to reverse
his sentence under R.C. 2953.08(G)(2)(a). [CITATION], at ¶ 5. We overrule Spires' sole assignment of error.
[CITATION]
{¶ 30} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
- 10 -
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112574
v. :
[SEGMENT 4]
TIMOTHY M. LEWIS, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 11, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641305-A
Appearances:
Flowers & Grube and Louis E. Grube, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christine M. Vacha, Assistant Prosecuting
Attorney, for appellee.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Timothy M. Lewis, Sr. (“Lewis”) appeals the
imposition of consecutive sentences arising from guilty pleas and convictions. We
affirm the trial court’s judgment. I. Background
On June 27, 2019, Lewis was indicted for the following:
Count 1, rape, felony of the first degree, in violation of [CITATION]
with a sexually violent predator specification attached.
Count 2, gross sexual imposition, a felony of the third degree, in
violation of [CITATION] with a sexually violent predator
specification attached.
Count 3, rape, a felony of the first degree, in violation of [CITATION]
with a sexually violent predator specification
attached.
Count 4, gross sexual imposition, a felony of the third degree, in
violation of [CITATION] with a sexually violent predator
specification attached.
The charges arose from allegations of sexual conduct involving three
minor relatives. On July 17, 2019, 26-year-old Lewis was granted a bond reduction
and placed on a GPS monitor. On January 31, 2022, the parties set a jury trial date
for May 9, 2022. In February 2022, Lewis was in court for GPS violations, several
failures to report, passing through the exclusion zones where the alleged victims
resided, making unauthorized stops on the way to work, and testing positive for
marijuana and alcohol. His bond conditions were reinstated, and GPS reinstalled.
The trial court was advised of Lewis’s struggle to catch the bus to his
temporary job in Solon and maintain cell phone service due to budget constraints.
Lewis explained that he was working on the marijuana problem but used it to deal
with emotional issues. The probation officer advised Lewis to speak with a
counselor regarding his dependency. Lewis’s stops at the store on the way to work
were to use his cash card to obtain bus fare. Lewis also advised that the occasional vehicular passes through
exclusion zones occurred unintentionally when he was able to get rides to work.
Lewis also explained he had only been informed of one exclusion zone and that one
of the zone violations listed were for an area where the alleged victim no longer
resided. Lewis accepted the trial court’s offer to test negative for marijuana during
a 45-day day window rather than wait in jail.
On March 21, 2022, Lewis appeared in court to address additional
GPS violations. The 34 minutes spent at the basketball court located underneath his
grandmother’s residence with whom he resided was for a family balloon release for
a brother who had committed suicide several years earlier. The two nine-minute
periods at the basketball court on two evenings were to take the dog out. Two eight-
minute stops on two days at 3:06 p.m. occurred when Lewis received a ride home by
a coworker who stopped at their residence on the way. He also went to the basketball
court two other occasions for about nine minutes at approximately 7:40 p.m. Lewis
explained that the first basketball court visit was for a family balloon release on the
third anniversary of Lewis’s brother’s suicide and the other two times to take the dog
out. The two private residence stops at 3:06 p.m. occurred on days when the
coworker who gave Lewis a ride from work stopped at their residence on the way.
The trial court noted that Lewis had been on house arrest for two and one-half years
and determined that Lewis’s movement would no longer be restricted except for the
exclusion zones. On May 9, 2022, the parties appeared for trial. Defense counsel
explained that he was waiting for a medical certification crucial to Lewis’s defense
and requested a continuance. The state advised that one of the alleged victims and
the victim’s parent were not being cooperative so Counts 1 and 4 would probably be
dismissed. Trial was rescheduled for August 1, 2022.
On June 6, 2022, Lewis appeared in court to answer the state’s claim
that Lewis rode through part of an exclusion zone that the state said “was not an
intentional stop.” Since Lewis was informed of the exclusion area on May 20, 2022,
he was arrested. The state could not tell the trial court where Lewis was at within
the zone or his proximity to the excluded source, and he was at home by the time of
his arrest. Lewis had not tested positive for marijuana since early 2022. The trial
court decided to remove the GPS monitor that Lewis had been wearing for almost
three years, though he remained under supervised release.
On August 1, 2022, the defense requested another continuance as co-
counsel was in trial. Trial was rescheduled for the tenth time to October 17, 2022.
On October 17, 2022, Lewis failed to appear by 10:09 a.m. for the 10:00 a.m. trial
and a capias was issued. On November 1, 2022, Lewis appeared and advised the
trial court that when his shift in Solon ended at 6:45 a.m., his wallet was missing
from his locker and his cell phone screen was broken. He walked home from Solon
to Cleveland and emailed his attorney two days later. Counsel reminded the trial
court that Lewis had always been communicative and attendant and appeared of his
own volition. Lewis was taken into custody. On February 1, 2023, Lewis entered a guilty plea to Counts 2 and 3,
as amended, for gross sexual imposition, a third-degree felony under R.C.
2907.05(A)(4). Counts 1 and 4 were nolled. Lewis was referred for a presentence
investigation (“PSI”).
At the March 1, 2023 sentencing, Lewis cited mitigating factors for
the trial court’s consideration. Lewis was one and one-half years old in 1995 when
he and his eight siblings were placed in separate foster homes due to their mother’s
struggles with drug issues. Lewis returned to his mother’s home in 2002 and at the
age of 13 helped to run the household to prevent him and his siblings from being
removed again. He was diagnosed with post-traumatic stress disorder and anxiety
and used marijuana and alcohol as coping mechanisms. Lewis had no criminal
record. His brother, who was still in the foster care system at the time of trial, was
also charged with committing similar offenses involving the victims. His case was
pending before a different judge.
One of Lewis’s brothers committed suicide a few years prior to trial,
an uncle died of a heart attack, and his mother and grandmother suffered strokes.
Lewis paid rent to help his grandmother and worked consistently prior to entering
a plea. Each incident occurred a single time. The affected family members desired
to put the acts behind them that occurred several years before the 2019 indictments.
Lewis decided to enter a plea because the matter had been going on for three years
and he was tired of fighting it. The defense requested a community-control sanction
with substance abuse treatment and counseling. On March 2, 2023, Lewis was sentenced to five years on Count 2 and
three years on Count 3 to be served consecutively for a total term of eight years and
declared to be a Tier II sex offender. Lewis appeals.
II. Assignment of Error
Lewis’s single assignment of error is that the trial court committed
plain error by imposing consecutive sentences because the record clearly and
convincingly does not support any of the necessary factual findings.
III. Discussion
“It is well-settled that a sentence that is contrary to law is plain error
and an appellate court may review it for plain error.” [CITATION], ¶ 17, citing [CITATION], ¶ 9, citing [CITATION], ¶ 6. A trial court’s failure to make the
required R.C. 2929.14(C)(4) consecutive-sentence findings is contrary to law which
constitutes plain error. Id., citing [CITATION], ¶ 15.
An appellate court reviews felony sentences under the standard set
forth in R.C. 2953.08(G)(2). [CITATION], ¶ 16. Consecutive sentences may be challenged by arguing (1) the
sentence is contrary to law due to the trial court’s failure to make the requisite R.C.
2929.14(C)(4) requirements pursuant to R.C. 2953.08(G)(2)(b); or (2) the record
“‘clearly and convincingly’” does not support the court’s R.C. 2929.14(C)(4) findings pursuant to R.C. 2953.08(G)(2)(a). [CITATION], citing [CITATION], 15
N.E.3d 892, ¶ 16 (8th Dist.).
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
[SEGMENT 5]
[CITATION], ¶ 22, quoting [CITATION].
A trial court is not required to recite the statutory language verbatim,
nor is it required to state its reasons to support its findings “‘“provided that the
necessary findings can be found in the record and are incorporated in the sentencing
entry.””’ [CITATION], at ¶ 17,
quoting [CITATION], ¶ 176,
quoting [CITATION], ¶ 37.
The trial court stated:
The problem when we’re dealing with victims who are children is that
the impact on those victims is great. I mean, this is something that
they’re going to live with and something that’s going to keep replaying
itself in their head.
So while I knew that I was going to send you to prison, the question is
for how long. I understand that you don’t have a prior record and I
understand that you’re all family, and I know this is tearing the family
apart, because, on one hand, again, they want you to pay, and another
hand, you’re the brother, you’re the father—not the father, the son, the
grandson, et cetera. But I just feel that this is serious, and I don’t know—I don’t think it
deserves a slap on the wrist. I just don’t. I think that this is something
that—I understand your background as well when you’re taken from
your own parent at a young age and you’re put into the system. I
understand that there is a lot of trauma in your life as well. But now
there is trauma for these two kids, especially the young girl as well as
the guy. Even though he is older now and he was older at the time, it
still is something that he won’t forget.
[CITATION].
The trial court continued:
With that being said, as to amended Count 2, the Defendant is
sentenced to 5 years in prison.
As to the amended Count 3, I am going to sentence you to 3 years in
prison. That time will run consecutive for a total time of 8 years in
prison.
The Court finds that consecutive sentences are necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the dangers it would pose to the public.
Furthermore, the Court finds that at least two of the multiple offenses
were committed as part of one or more courses of conduct and that the
harm caused by the abuse on these children is great, and no single
prison term for any of the offenses committed as part of the conduct
adequately reflects the seriousness of the offender’s conduct.
The Court has taken into consideration the fact that he has no prior
record. That is why the sentence is as it is and not more.
(Emphasis added.) [CITATION].
Lewis expressed remorse to the trial court. The trial court heard at
sentencing, and the record contains the same in the PSI, the details of the sexual
misconduct and the impact that Lewis’s behavior had on the victims. The fact that familial relationships were involved has been painful and traumatic for the victims
and the family members.
After conducting a thorough review of the record, this court does not
find that the record clearly and convincingly fails to support the trial court’s findings.
We therefore find that Lewis has not demonstrated plain error. The assignment of
error is overruled.
IV. Conclusion
The trial court’s judgment is affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, A.J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION);
MARY J. BOYLE, J., CONCURS WITH THE SEPARATE CONCURRING IN
JUDGMENT ONLY OPINION KATHLEEN ANN KEOUGH, A.J., CONCURRING IN JUDGMENT ONLY:
I concur with the decision affirming Lewis’s sentence that included
consecutive sentences. But I write separately to express my opinion that a defendant
does not need to object to the trial court’s imposition of consecutive sentences to
preserve the issue on appeal.
In [CITATION], the lead opinion addressed and sustained Beasley’s challenge to the
imposition of consecutive sentences even though he did not object to the trial court
imposing consecutive sentences. Id. at ¶ 252-262. The dissenting opinion explicitly
pointed out that because the defendant did not object, he had waived all but plain
error. Id. at ¶ 268-280 (DeWine, J., dissenting). Because the Beasley majority did
not find that this impairment hindered the court’s review, I believe that the court
implicitly held that a defendant does not need to object to a trial court’s imposition
of consecutive sentences.
Additionally, the Twelfth District in [CITATION], recently addressed this issue when
the state, relying on [CITATION], suggested that the court’s standard of review is limited to plain
error because the defendant did not object after consecutive sentences were
imposed.
The relevant paragraph in [CITATION] cites another capital case, [CITATION], [¶ 152],
Hunter, in turn, cites a third capital case, [CITATION]. 404, 2008-Ohio-2, 880 N.E.2d 31, [¶ 377]. In [CITATION], the appellant
argued that a trial court erred by imposing consecutive sentences for
noncapital counts in a capital case, and the supreme court determined
that plain error review applied because the appellant failed to raise this
argument at the sentencing hearing. [CITATION] at ¶ 166. In [CITATION], the
supreme court applied plain error review to the appellant’s argument
that the imposition of consecutive sentences in a capital case was
unconstitutional. [CITATION] at ¶ 151-155. In [CITATION], the supreme court did
not even mention plain error in the portion cited in [CITATION], but instead
stated that when the appellant objected to consecutive sentences but
failed to raise the specific constitutional arguments he raised on appeal,
those constitutional arguments were forfeited. [CITATION] at ¶ 377.
While all three of these cases discuss either plain error review or
forfeiture in the context of a challenge to consecutive sentences, none
of these cases involve the type of argument before us today — that is,
none involve a challenge to R.C. 2929.14(C)(4) consecutive sentence
findings under R.C. 2953.08(G)(2). It is not clear that the Ohio
Supreme Court in [CITATION], or [CITATION] intended to suggest that
an offender who fails to object to consecutive sentences after they are
imposed is limited to plain error review when the offender brings an
appeal challenging R.C. 2929.14(C)(4) consecutive sentence findings
under R.C. 2953.08(G)(2).
Id. at ¶ 26-28.
I agree with the [CITATION] analysis, and based on [CITATION], it is my
opinion that a defendant does not need to object to preserve appellate review
beyond that of plain error when challenging the consecutive-sentence findings
under R.C. 2929.14(C)(4). Because the majority opinion implies otherwise, I
respectfully concur in judgment only.
[Cite as [CITATION],
2023-Ohio-4788.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 112472 and 112871
v. :
KENNETH NORRIS, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: December 28, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-22-674411-A and CR-22-673597-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon K. McNally and Jillian Piteo,
Assistant Prosecuting Attorneys, for appellee.
Robert A. Dixon, for appellant.
ANITA LASTER MAYS, A.J.:
I. Introduction
Defendant-appellant Kenneth Norris, Jr. (“Norris”) appeals the
imposition of consecutive sentences for his criminal convictions in this consolidated appeal. We vacate the trial court’s judgment and remand it for further proceedings
pursuant to this opinion.
On January 11, 2023, Norris pleaded guilty to the following offenses:
[SEGMENT 6]
Cuyahoga C.P. No. CR-22-673597: gross sexual imposition, a third-
degree felony, R.C. 2907.05(A)(4), as amended in the indictment.
Cuyahoga C.P. No. CR-22-674411: having weapons while under
disability, a third-degree felony, R.C. 2923.13(A)(2), as charged in
Count 1 of the indictment. Aggravated menacing, a first-degree
misdemeanor, R.C. 2903.21(A), as charged in Count 2 of the
indictment.
Norris was sentenced to four years in CR-22-673597. In CR-22-
674411, Norris was sentenced to 12 months on Count 1 and 180 days on Count 2, to
run concurrently to each other. The sentences in CR-22-673597 and CR-22-674411
were to be served consecutively to each other.
Norris contends that the trial court erred in imposing consecutive
sentences without finding on the record that consecutive sentences were not
disproportionate to the danger that the appellant posed to the public.
“It is well-settled that a sentence that is contrary to law is plain error,
and an appellate court may review it for plain error.” [CITATION]. Thus, the trial court’s failure to make
the required R.C. 2929.14(C)(4) consecutive-sentence findings is contrary to law,
which constitutes plain error. [CITATION]. “R.C. 2953.08(G)(2) provides that when reviewing felony sentences,
a reviewing court may overturn the imposition of consecutive sentences where the
court ‘clearly and convincingly’ finds that (1) ‘the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4),’ or (2) ‘the sentence is
otherwise contrary to law.’” [CITATION]
To impose consecutive sentences, the trial court must make the
specific findings set forth in the statute: “consecutive sentence is necessary to protect
the public from future crime or to punish the offender”; “consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public.” R.C. 2929.14(C)(4). At a minimum, one of the
following is required:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
[CITATION] An appellant “can challenge consecutive sentences on appeal in two
ways. First, the defendant can argue that consecutive sentences are contrary to law
because the court failed to make the necessary findings required by R.C.
2929.14(C)(4).” [CITATION], ¶ 38, citing R.C. 2953.08(G)(2)(b); [CITATION], ¶ 16 (8th Dist.). “Second, the defendant can argue that the record does not
support the court’s findings made pursuant to R.C. 2929.14(C)(4).” Id., citing R.C.
2953.08(G)(2)(a); [CITATION] at id. Norris argues the former.
“R.C. 2953.08(G)(2) provides that when reviewing felony sentences,
a reviewing court may overturn the imposition of consecutive sentences where the
court ‘clearly and convincingly’ finds that (1) ‘the record does not support the
sentencing court’s findings under R.C. 2929.14(C)(4),’ or (2) ‘the sentence is
otherwise contrary to law.”’ [CITATION], ¶ 18.
Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the
extent of such certainty as is required “beyond a reasonable doubt” in
criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.
[CITATION], ¶ 22,
quoting [CITATION], paragraph three
of the syllabus.
A trial court is not required to recite verbatim the statutory language,
nor is it required to state its reasons to support its findings “‘“provided that the necessary findings can be found in the record and are incorporated in the sentencing
entry.””’ [CITATION], ¶ 17, quoting
[CITATION], ¶ 176, quoting
[CITATION], ¶ 37.
The trial court recited Norris’s prior issues.
Thank you. In case number 654165, that’s the probation case. You
were on probation for attempted felonious assault, felony of the third
degree. That was count 1. Domestic violence, a felony of the fourth
degree, count 5. Endangering children a misdemeanor of the first
degree, counts 8 and 9.
The Court placed you on probation and it appears you violated on more
than one time. This would have been not the first time you violated,
but the first to my knowledge because this happened in April, so I
wasn’t aware of that.
You had a positive drug screen on May 5, 2022. We held a hearing. You
were on GPS monitoring. You went through the victim’s zone on
6/13/2022. Apparently, the victim no longer lived at that residence. I
released you.
As of 8/31 you were remanded, so you will receive credit for time
served. You have been in jail since 8/31.
You’re found to be in violation in case number 654165. Probation is
terminated on that case.
I have had an opportunity to look at and review the pre-sentence
investigation report for that case, which was less than a year old. It
reveals you have quite a lengthy criminal history including an
adjudication when you were delinquent in 2010 for a gross sexual
imposition case, several domestic violence cases, some of which have
been dismissed.
There’s another sex offense back in 2015 though. You were found not
guilty on that verdict of not guilty to an aggravated robbery in 2018 with
firearm specifications. Then you picked up the cases with me and then you picked up these
two new cases. I do not find you’re a good candidate for probation. You
were on probation for all of the reasons that [defense counsel] was
asking me to put you on probation for today. That did not -- that path
did not seem to work very well. You did pick up two new cases.
Tr. 32-34.
The trial court also announced:
In case number 673597, count 1, four years. For the reasons that I have
stated, that you were on probation at the time the offenses were
committed, your record, I do not feel a single sentence will protect the
public, and am going to impose a consecutive sentence, and I take into
consideration the probation case.
I’m not imposing a sentence on that, but I am imposing a consecutive
sentence on -- I do find also your criminal history shows a consecutive
term is necessary to protect the public.
Tr. 35.
The record contains Norris’s criminal history, probation violations,
and the nature of the crimes. However, the trial court failed to make the requisite
disproportionate findings under R.C. 2929.14(C)(4) according to [CITATION]. For that reason, this court vacates
Norris’s consecutive sentences and remands the matter for the trial court to address
whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so,
to make the required findings on the record and incorporate those findings in the
sentencing journal entry pursuant to [CITATION].
Norris has demonstrated plain error. The assignment of error is
sustained. II. Conclusion
The trial court’s judgment is vacated and remanded for proceedings
pursuant to this opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that appellant recover from appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY
(WITH SEPARATE OPINION);
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY KATHLEEN ANN KEOUGH, J., CONCURRING IN JUDGMENT ONLY:
[SEGMENT 7]
I concur with the decision to vacate Norris’s consecutive sentences
and remand the matter to the trial court. But I write separately to express my
opinion that a defendant does not need to object to the trial court’s imposition of
consecutive sentences to preserve the issue on appeal.
In [CITATION], the lead opinion addressed and sustained Beasley’s challenge to the
imposition of consecutive sentences even though he did not object to the trial court
imposing consecutive sentences. Id. at ¶ 252-262. The dissenting opinion explicitly
pointed out that because the defendant did not object, he had waived all but plain
error. Id. at ¶ 268-280 (DeWine, J., dissenting). Because the Beasley majority did
not find that this impairment hindered the court’s review, I believe that the court
implicitly held that a defendant does not need to object to a trial court’s imposition
of consecutive sentences.
Additionally, the Twelfth District in [CITATION], recently addressed this issue when
the state, relying on [CITATION], suggested that the court’s standard of review is limited to plain
error because the defendant did not object after consecutive sentences were
imposed.
The relevant paragraph in Whitaker cites another capital case, [CITATION],
Hunter, in turn, cites a third capital case, [CITATION].
====== End of Part of Court Ruling ====== 404, 2008-Ohio-2, 880 N.E.2d 31, [¶ 377]. In [CITATION], the appellant
argued that a trial court erred by imposing consecutive sentences for
noncapital counts in a capital case, and the supreme court determined
that plain error review applied because the appellant failed to raise this
argument at the sentencing hearing. [CITATION] at ¶ 166. In [CITATION], the
supreme court applied plain error review to the appellant’s argument
that the imposition of consecutive sentences in a capital case was
unconstitutional. [CITATION] at ¶ 151-155. In [CITATION], the supreme court did
not even mention plain error in the portion cited in [CITATION], but instead
stated that when the appellant objected to consecutive sentences but
failed to raise the specific constitutional arguments he raised on appeal,
those constitutional arguments were forfeited. [CITATION] at ¶ 377.
While all three of these cases discuss either plain error review or
forfeiture in the context of a challenge to consecutive sentences, none
of these cases involve the type of argument before us today — that is,
none involve a challenge to R.C. 2929.14(C)(4) consecutive sentence
findings under R.C. 2953.08(G)(2). It is not clear that the Ohio
Supreme Court in [CITATION], or [CITATION] intended to suggest that
an offender who fails to object to consecutive sentences after they are
imposed is limited to plain error review when the offender brings an
appeal challenging R.C. 2929.14(C)(4) consecutive sentence findings
under R.C. 2953.08(G)(2).
Id. at ¶ 26-28.
I agree with the [CITATION] analysis, and based on Beasley, it is my
opinion that a defendant does not need to object to preserve appellate review beyond
that of plain error when challenging the consecutive-sentence findings under R.C.
2929.14(C)(4). Because the majority opinion finds otherwise, I respectfully concur
in judgment only.
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as State v. Morris, 2023-Ohio-3412.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-11-105
: OPINION
- vs - 9/25/2023
:
MICHAEL J. MORRIS, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case Nos. CR2019-11-1890 & CR2020-07-0928
Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.
Christopher P. Frederick, for appellant.
BYRNE, J.
{¶ 1} Michael J. Morris appeals from an entry of the Butler County Court of Common
Pleas, which revoked community control and imposed prison terms. For the reasons
discussed below, we affirm.
I. Factual and Procedural Background
{¶ 2} In January 2020, a Butler County grand jury indicted Morris in a 15-count
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indictment, alleging that Morris committed a variety of felony theft and theft-related offenses.
The charges related to accusations that Morris deposited and cashed forged checks.
{¶ 3} As part of a plea agreement, Morris subsequently entered guilty pleas to five
counts of that indictment, which were all fifth-degree-felony theft charges. In September
2021, the court sentenced Morris to five years of community control. The judgment entry
warned Morris that a violation of community control "shall" lead to consecutive prison terms.
Morris did not appeal his conviction.
{¶ 4} In April 2022, the Adult Probation Department of Butler County, Ohio, alleged
that Morris had violated the conditions of community control. At a hearing on the violation,
the court found that Morris had violated conditions of community control by failing to report
to his probation officer and by testing positive for methamphetamine. Nonetheless, the
court continued Morris on community control with the additional requirement that Morris
enter, comply with, and complete the Court Directed Addiction Treatment Program.
{¶ 5} In October 2022, the Probation Department alleged that Morris had again
violated the conditions of community control, this time by being unsuccessfully discharged
from Sojourner, a residential treatment facility. In November 2022, the court held a
community control revocation hearing. Morris admitted to the violation. The court accepted
Morris' admission. Morris then spoke in mitigation. Morris conceded to making a "very
stupid, impulsive decision" by leaving Sojourner, but asked the court for a final opportunity
to "make this right."
{¶ 6} In passing sentence, the court first noted that Morris' juvenile record began in
1998. The court commented that Morris' criminal record was so lengthy that the court lost
count of the number of pages. The court observed that Morris' record included a burglary
offense in Florida, which the court found to be a felony offense of violence. Morris stated
he was jailed for just under one year on that burglary offense. The court also noted that
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Morris had been to prison before for receiving stolen property. The court next observed that
Morris was present at a home where the S.W.A.T. team was used to execute a search
warrant, at which law enforcement recovered narcotics and firearms. In explaining his
presence at the home, Morris stated that he was in the "wrong place at the wrong time" and
was just there to "eat chicken wings and drink beer with my friends."
{¶ 7} The court found that Morris violated the conditions of community control. The
court stated it considered the principles and purposes of sentencing under R.C. 2929.11 as
well as the seriousness and recidivism factors of R.C. 2929.12. The court further found that
Morris had previously committed a felony offense of violence and that Morris had an
extensive prior record.
{¶ 8} The court then sentenced Morris to 12 months in prison on each of the five
counts. With regard to consecutive sentences, the court found that consecutive sentences
were not disproportionate to the seriousness of Morris' conduct and to the danger Morris
posed to the public. The court further found that consecutive sentences were necessary to
protect the public from future crime, to punish Morris, and that Morris' history of criminal
conduct demonstrated that consecutive sentences were necessary to protect the public
from future crime by Morris. The court then ordered three of the five counts to be served
consecutively. The court ran the remaining counts concurrently for a total prison term of
three years. The court also gave Morris 365 days of jail time credit. The court issued an
entry revoking Morris' community control and imposing the above-described prison terms.
{¶ 9} Morris appealed from the entry revoking community control and imposing
prison terms. He presents one assignment of error for our review.
{¶ 10} Before addressing the single assignment of error, we note that the facts we
have described above pertain to Case No. CR2019-11-1890, which involved charges
concerning theft and other theft-related offenses. At the same time that Morris was given
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his initial community control sentence in Case No. CR2019-11-1890, the trial court also
sentenced Morris to community control in another case that was then pending before the
court. In that second case, Case No. CR2020-07-0928, Morris had pleaded guilty to
aggravated possession of drugs (methamphetamine). When the trial court revoked Morris'
community control and imposed consecutive sentences in Case No. 2019-11-1890, the trial
court also revoked Morris' community control and imposed a prison sentence in Case No.
CR2020-07-0928. However, in that second case, the trial court ran Morris' 12-month prison
sentence concurrently with his sentences in Case No. CR2019-11-1890, not consecutively.
When Morris appealed, he filed notices of appeal in both Case Nos. CR2019-11-1890 and
CR2020-07-0928. But Morris opened his appellate brief with the statement, "This appeal
involves two separate matters but only addresses the sentencing imposed in case CR2019
11 1890.” Indeed, other than referring to Case No. CR2020-07-0928 in his statement of the
case and facts, he has not raised any argument concerning Case No. CR2020-07-0928 in
his brief. To the extent Morris purports to challenge any aspect of Case No. CR2020-07-
0928 by filing a notice of appeal with respect to that case and discussing facts related to
the case in his brief, we overrule that challenge and affirm the judgement in Case No.
CR2020-07-0928. See Newell v. Shumate, 9th Dist. Lorain No. 10CA009837, 2011-Ohio-
2448, at ¶ 5 (where an appellant fails to include any assignment of error in the brief, the
court of appeals may summarily affirm the trial court's judgment).
II. Law and Analysis
{¶ 11} Morris' assignment of error states:
{¶ 12} MR. MORRIS' CONSECUTIVE SENTENCES WERE UNLAWFUL.
{¶ 13} Within his assignment of error, Morris presents two issues for review. Despite
the phrasing of his assignment of error, only one of those issues regards consecutive
sentences; the other concerns merger of allied offenses.
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A. Allied Offenses
{¶ 14} Morris first argues that the trial court improperly failed to merge his theft
convictions prior to sentencing. He argues that the record at the revocation hearing did not
support a finding that Morris separately committed the five theft offenses.
{¶ 15} However, we need not analyze whether the theft offenses should have
merged. Under the doctrine of res judicata, "a final judgment of conviction bars the
convicted defendant from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or any claimed lack of due process that was raised or could
have been raised by the defendant at the trial which resulted in that judgment of conviction
or on an appeal from that judgment." State v. Dodson, 12th Dist. Butler No. CA2011-02-
034, 2011-Ohio-6347, ¶ 9. In Dodson, we found that the time to challenge a conviction
based on an allied offenses argument is through a direct appeal and that res judicata bars
a later attempt to present an allied offense argument in an appeal from a revocation of
community control. Id. at ¶ 8-9.
{¶ 16} Morris could have challenged the trial court's decision not to merge his theft
offenses at his original sentencing hearing or could have raised that as an issue in a timely
direct appeal. But he did not. Therefore, res judicata bars Morris from challenging the
failure to merge offenses in an appeal from the revocation of his community control. Id. at
¶ 9. Accord State v. Painter, 12th Dist. Clermont No. CA2012-04-031, 2013-Ohio-529, ¶
14-19 (reaffirming Dodson). See State v. Baldwin, 12th Dist. Clermont Nos. CA2015-10-
082 and CA2015-10-086, 2016-Ohio-5476, ¶ 22 ("questions concerning the validity of a
sentencing entry or matters pertaining thereto should be raised on a direct appeal of that
particular entry, and not through a collateral attack of the revocation of community control");
State v. Rogers, 12th Dist. Clermont No. CA2007-05-068, 2007-Ohio-7076, ¶ 4-6.
Accordingly, Morris' first issue presented for review need not be considered further.
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B. Consecutive Sentences
{¶ 17} Morris next argues that the record fails to support the trial court's consecutive
sentence findings.
1. Applicable Law
a. Required Findings for Consecutive Sentences
{¶ 18} When imposing consecutive sentences, a sentencing court is required "to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry * * *." State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, syllabus. That statute states:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public
from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4).
{¶ 19} Stated more simply, to impose consecutive sentences, a sentencing court
must find (1) "that the consecutive service is necessary to protect the public from future
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crime or to punish the offender[,]" (2) "that consecutive sentences are not disproportionate
to the seriousness of the offender's conduct and to the danger the offender poses to the
public[,]" and (3) that at least one of the three conditions described in R.C. 2929.14(C)(4)(a),
(b), or (c) apply. R.C. 2929.14(C)(4).
{¶ 20} "When imposing consecutive sentences, a trial court must state the required
findings as part of the sentencing hearing, and by doing so it affords notice to the offender
and to defense counsel." Bonnell at ¶ 29, citing Crim.R. 32(A)(4). "[A] word-for-word
recitation of the language of the statute is not required," though, "and as long as the
reviewing court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive sentences
should be upheld." Id.
b. Standard of Review – Felony Sentencing Appeals
{¶ 21} R.C. 2953.08(G)(2) defines the standard of review for felony-sentencing
appeals. State v. Day, 12th Dist. Warren Nos. CA2020-07-042 and CA2020-7-043, 2021-
Ohio-164, ¶ 6. As applicable here, R.C. 2953.08(G)(2) provides:
The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
{¶ 22} "The consecutive sentence statute, R.C. 2929.14(C)(4), is one of the relevant
statutes specifically mentioned in R.C. 2953.08(G)(2)." State v. Richey, 12th Dist. Clermont
Nos. CA2022-08-038 thru CA2022-08-041, 2023-Ohio-336, ¶ 12. "Thus, there are two
ways that a defendant can challenge consecutive sentences on appeal." State v. Shiveley,
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12th Dist. Clermont No. CA2022-04-017, 2022-Ohio-4036, ¶ 7. "The defendant can argue
either that the imposition of consecutive sentences is contrary to law because the trial court
failed to make the necessary consecutive sentence findings required by R.C.
2929.14(C)(4), or that the record does not support the trial court's consecutive sentence
findings made under R.C. 2929.14(C)(4)." Richey at ¶ 12, citing Shiveley at ¶ 7. "These
are the only two means that the legislature provided to defendants to challenge their
consecutive sentences on appeal." Id., citing State v. Gwynne, Slip Opinion No. 2022-Ohio-
4607, at ¶ 11.
{¶ 23} In this appeal, Morris does not dispute that the trial court made the
consecutive sentence findings required by R.C. 2929.14(C)(4). Morris therefore concedes
that the trial court's decision to impose consecutive sentences was not clearly and
convincingly contrary to law under R.C. 2953.08(G)(2)(b). Richey at ¶ 13.
{¶ 24} Instead, Morris argues—pursuant to R.C. 2953.08(G)(2)(a)—that the record
does not support the trial court's consecutive sentence findings under R.C. 2929.14(C)(4).
As we explained in Richey, the Ohio Supreme Court recently held that "Such a challenge
requires this court to review the record de novo and decide whether the record clearly and
convincingly does not support the trial court's consecutive sentence findings." Richey at ¶
13, citing Gwynne at ¶ 1. In conducting this de novo review, this court "essentially functions
in the same way as the trial court when imposing consecutive sentences in the first
instance." Gwynne at ¶ 21.
{¶ 25} However, we are constrained "to considering only those consecutive sentence
findings that the trial court actually made." Richey at ¶ 14, citing Gwynne at ¶ 21.
"Therefore, upon a de novo review of the record, this court may reverse or modify
consecutive sentences—including the number of consecutive sentences imposed by the
trial court[,]" but only if we clearly and convincingly find "that the record does not support
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the trial court's consecutive sentence findings made under R.C. 2929.14(C)(4)." (Emphasis
added.) Richey at ¶ 14, citing Gwynne at ¶ 12. This means that we may only reverse or
modify consecutive sentences when we have "a firm belief or conviction that the proposition
of fact represented by each finding is not true on consideration of the evidence in the
record." Gwynne at ¶ 21.
{¶ 26} Before moving on to our analysis, we note that the state suggests that our
standard of review of Morris' consecutive sentence argument is limited to "plain error"
because Morris did not object to the imposition of consecutive sentences after the court
imposed consecutive sentences. In support, the state cites the Ohio Supreme Court's
decision in a capital case, State v. Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840, ¶ 166.
{¶ 27} The relevant paragraph in Whitaker cites another capital case, State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 152. Hunter, in turn, cites a third capital
case, State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 377. In Whitaker, the appellant
argued that a trial court erred by imposing consecutive sentences for noncapital counts in
a capital case, and the supreme court determined that plain error review applied because
the appellant failed to raise this argument at the sentencing hearing. Whitaker at ¶ 166. In
Hunter, the supreme court applied plain error review to the appellant's argument that the
imposition of consecutive sentences in a capital case was unconstitutional. Hunter at ¶
151-155. In Davis, the supreme court did not even mention plain error in the portion cited
in Hunter, but instead stated that when the appellant objected to consecutive sentences but
failed to raise the specific constitutional arguments he raised on appeal, those constitutional
arguments were forfeited. Davis at ¶ 377.
{¶ 28} While all three of these cases discuss either plain error review or forfeiture in
the context of a challenge to consecutive sentences, none of these cases involve the type
of argument before us today—that is, none involve a challenge to R.C. 2929.14(C)(4)
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consecutive sentence findings under R.C. 2953.08(G)(2). It is not clear that the Ohio
Supreme Court in Whitaker, Hunter, or Davis intended to suggest that an offender who fails
to object to consecutive sentences after they are imposed is limited to plain error review
when the offender brings an appeal challenging R.C. 2929.14(C)(4) consecutive sentence
findings under R.C. 2953.08(G)(2). But even if that was the Ohio Supreme Court's intent,
the standard for reviewing the imposition of consecutive sentence under R.C. 2953.08(G)(2)
is now guided by Gwynne, 2022-Ohio-4607, which was decided after Whitaker, Hunter, and
Davis. As explained above, Gwynne dictates a de novo review in this case. Id. at ¶ 1. In
any event, even if a plain error review were required in this case, we would not find plain
error in the trial court's imposition of consecutive sentences for the reasons we will discuss
below.
2. Analysis
{¶ 29} We have conducted a de novo review of the record. The trial court's statement
that Morris' criminal history was so lengthy that the court lost count of the number of pages
documenting the offenses was not hyperbole. Morris' criminal record is truly extensive.
Setting aside criminal counts filed against Morris that were dismissed, Morris has been
convicted of around 80 different criminal counts over two decades. Morris has been
convicted of numerous offenses involving violence, such as assault, attempted assault, and
domestic violence. Morris has also been convicted of serious nonviolent offenses that,
while nonviolent, nevertheless are crimes that cause harm to others, including grand theft,
theft, attempted theft, theft by taking, burglary of a conveyance, fraudulent use of a credit
card, attempted breaking and entering, receiving stolen property, and more. This is in
addition to numerous convictions for drug-related crimes. With respect to many of the
crimes just listed, including the violent offenses, Morris was convicted of multiple counts of
those crimes. In addition to these 80 or so criminal offenses, Morris was also convicted of
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a large number of relatively less serious offenses (at least when compared to crimes like
assault and theft, such as driving under suspension and failure to produce a driver license),
the sheer number of such relatively less serious convictions is still shocking, and
demonstrates Morris' persistent disregard for the law.
{¶ 30} Of course, Morris' criminal convictions led to criminal sentences. As
mentioned by the trial court, Morris went to jail for about a year for a burglary offense, and
he went to prison for receiving stolen property. But that is not all. The record reveals that
Morris was sentenced, on numerous occasions, to community control, to jail terms of
various lengths, and to pay various fines and restitution. Different courts, in different states,
gave Morris multiple "second chances;" a number of his jail sentences were suspended so
that he could participate in community control or were suspended outright. On top of all of
this, Morris' record references multiple community control and parole violations over the
years, even before the community control violations at issue in this appeal. These
violations, again, demonstrate that Morris has little to no regard for the law.
{¶ 31} All of this information supports the trial court's finding under R.C.
2929.214(C)(4) that consecutive sentences were "necessary to protect the public from
future crime or to punish the offender." Morris' record, and his actions at issue in this appeal,
demonstrate a more than two-decade pattern of committing criminal acts. Morris has more
than demonstrated that he is a threat to the public, and that he is likely to engage in future
crime. And by continuing to commit crimes, again and again, despite numerous second
chances, Morris has demonstrated that consecutive sentences are necessary in order to
punish him. Concurrent sentences would simply be more of the same, and would not
adequately punish Morris for his theft convictions at issue here.
{¶ 32} Likewise, the record supports the trial court's finding under R.C.
2929.214(C)(4) that consecutive sentences "are not disproportionate to the seriousness of
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the offender's conduct and to the danger the offender poses to the public." The "offender's
conduct" at issue is Morris' perpetration of multiple theft offenses, in which Morris deposited
and cashed forged checks. These were serious financial crimes. Both the bank where he
deposited these checks and the individual on whose checking account he forged fraudulent
checks were harmed. Given the seriousness of Morris' thefts, we conclude that the
consecutive sentences imposed by the trial court were not disproportionate. This
conclusion is further supported by Morris' criminal record, as described above, which shows
that Morris has for many years been a serious danger to the public.
{¶ 33} For these same reasons, and because the numerous criminal sentences that
Morris received over the years—lesser sentences than the consecutive sentences he
received in this case—did not deter Morris from continuing to harm the public, we agree
with the trial court's conclusion under R.C. 2929.214(C)(4)(c) that Morris' "history of criminal
conduct demonstrates that consecutive sentences are necessary to protect the public from
future crime by the offender."
{¶ 34} In his appellate brief, Morris generally argues that all of the court's consecutive
sentences findings under R.C. 2929.14(C)(4) were "unsupported by the evidence." More
specifically, he argues that he merely violated community control by failing to report to
probation, testing positive for illicit drugs, and for failing to complete drug treatment. He
notes that his conduct that caused him to violate community control did not include
additional criminal charges. He argues that his conduct of abusing substances posed no
danger to the public and did not support the trial court's conclusion that there was a need
to protect the public from future crime.
{¶ 35} Notably, Morris does not dispute or even refer to his extensive criminal record
in the argument section of his appellate brief. Morris does not dispute that his prior record
included felony offenses of receiving stolen property and burglary, and that he went to prison
- 12 -
Butler CA2022-11-105
for the receiving stolen property offense.
{¶ 36} We reject Morris' argument that the conduct that led to the violation of Morris'
community control should have been the only consideration by the trial court in determining
whether to impose consecutive sentences. As correctly pointed out by the state, the
consecutive sentence analysis is directed to punishment for the original offenses, not the
act that violated community control. State v. Henderson, 2d Dist. Montgomery No. 24849,
2012-Ohio-3499, ¶ 25 ("when community control sanctions are vacated because the
offender has failed to comply with the conditions thereof, the new sentence imposed is not
punishment for the failure to comply with the conditions of community control; it is
punishment for the crime of which the offender was convicted"). Here, the original charges
were multiple felonies. Morris was advised by the original sentencing judge in this case that
he faced consecutive sentences on all five counts. In fact, that Morris received only three
consecutive terms after twice violating his community control indicated a generous degree
of leniency on the trial court's behalf.
{¶ 37} We also reject Morris' contention that his substance abuse issues do not
demonstrate that he presents a danger to the public. It is general knowledge that substance
abuse (methamphetamine use, specifically), crime, and danger to the public, are often
intertwined. While the record does not provide much detail with regard to the role that
Morris' drug use played with respect to his many criminal acts, we cannot ignore that, for
Morris, substance abuse and other criminal acts seem to go hand in hand.
{¶ 38} For these reasons, we do not find that the record clearly and convincingly
does not support the trial court's consecutive sentence findings under R.C. 2929.14(C)(4)
- 13 -
Butler CA2022-11-105
and (C)(4)(c).1 Gwynne, 2022-Ohio-4607 at ¶ 12. To the contrary, the record clearly
supported the findings that consecutive service was necessary to protect the public from
future crime or to punish Morris, that consecutive sentences were not disproportionate to
the seriousness of Morris' conduct, and that Morris' history of criminal conduct
demonstrated that consecutive sentences were necessary to protect the public from future
crime by Morris. R.C. 2929.14(C)(4) and (C)(4)(c). Morris has not demonstrated any error
in his sentencing. We overrule Morris' sole assignment of error.
III. Conclusion
{¶ 39} Res judicata precludes Morris' argument that the trial court erred by failing to
merge his theft convictions. Upon our de novo review of the record, we do not find that the
record clearly and convincingly does not support the trial court's consecutive sentence
findings under R.C. 2929.14(C)(4). We therefore find no error in Case Nos. CR-2020-07-
0928 and CR2019-11-1890.
{¶ 40} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
1. We are aware that our conclusion is awkwardly stated in the negative, or in the double negative. But this
is what is required under Gwynne. State v. Hunter, 12th Dist. Butler No. CA2022-05-054, 2023-Ohio-1317, ¶
30 fn.3.
- 14 -
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
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[
"1",
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Law
9882866
[SEGMENT 1]
[CITATION]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-543
v. : (C.P.C. No. 18CR-4362)
Daquan J. Lee, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 12, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BOGGS, J.
{¶ 1} Defendant-appellant, Daquan J. Lee, appeals the judgment of the Franklin
County Court of Common Pleas, which convicted him of one count of murder, in violation
of R.C. 2903.02, an unclassified felony, with a firearm specification. For the following
reasons, we overrule Lee’s assignments of error and affirm the trial court’s judgment.
I. PROCEDURAL HISTORY AND FACTS
{¶ 2} On August 26, 2018, a group of friends, many of whom were former high
school classmates, informally gathered at an apartment at 410 Knob Hill West. The
apartment was a frequent hangout spot for Lee, and it was not unusual for these friends to
engage in boxing matches or fistfights for entertainment and as a way to resolve
disagreements. On the evening of August 26, 2018, two of the friends, Lee and Ali Aliyow,
began arguing over a marijuana deal in the kitchen. Anthony Natividad, one of the
roommates at the Knob Hill West apartment, testified at trial that after the argument No 23AP-543
became more heated, Aliyow began throwing punches at Lee. Natividad further testified
that in the span of approximately five seconds after Aliyow’s first punch, Lee drew a gun,
pointed it at Aliyow and fired. The bullet struck Aliyow in the chest. Natividad testified
that, after the gun was fired, he and Lee struggled for control of the gun until another friend,
Miguel Jean Louis, helped Natividad restrain Lee on the kitchen floor. Natividad then
called 911. After Aliyow was shot, Natividad remained in the kitchen with Miguel and
several others until officers arrived several minutes later.
{¶ 3} On July 31, 2023, a jury trial began, which included testimony from Anthony
Natividad, Kiell Fuller, and Miguel Jean Louis, all of whom witnessed the incident. The
state also presented testimony from Deputy Joshua Crosby who was one of the first officers
at the scene. Deputy Crosby testified that when he entered the apartment there were several
individuals restraining Lee on the floor and that those individuals stated that the restrained
individual was the shooter. Deputy Crosby also testified that the police detained and
separated the individuals in the kitchen so they could not talk to each other.
{¶ 4} The jury also heard testimony from Special Agent Joshua Durst with the Ohio
Bureau of Criminal Investigation. Special Agent Durst authenticated photographs that
were taken inside the house and noted that no remarkable DNA evidence was collected.
{¶ 5} Detective Brian Meister who was assigned to the case also testified. Detective
Meister testified that he and another detective interviewed Lee who initially said that he
had been robbed and that Aliyow had shot himself. In the interview, Lee denied that he
had shot Aliyow and instead proffered that Aliyow had pointed a gun at him. Lee later
admitted that Aliyow had given his gun to another man prior to their argument. Detective
Meister suggested, during his interview of Lee, that Lee shot Aliyow in self-defense, as a
technique to get Lee to talk. Lee admitted that he and Aliyow were in an argument over a
marijuana deal and that Aliyow had punched him in the face. Ultimately, Lee admitted that
he pointed his gun at Aliyow and had pulled the trigger, but he also stated that he acted in
self-defense and was afraid.
{¶ 6} Detective Meister also authenticated photographs he took of Lee that showed
red marks on his cheek and an injury to his eye, indicative of a fistfight. He further testified
that he had interviewed several individuals who were in the apartment and that all of them
had told him there were no other guns in the kitchen during the fight. However, several No 23AP-543
days later, Detective Meister learned that Aliyow had a gun but had given it to another
individual. At trial, Natividad testified that Aliyow had a gun but, prior to Aliyow and Lee
physically fighting, Aliyow had handed the gun to Wes in the kitchen in the presence of Lee.
Jean Louis and Fuller also testified that Aliyow had handed his gun to Wes. Fuller testified
that Wes fled from the apartment with Aliyow’s gun.
{¶ 7} The state and defense also presented a joint stipulation including what would
have been the testimony of Dr. John Daniels of the Franklin County Coroner’s Office, who
performed an autopsy of Aliyow. The parties stipulated that Dr. Daniels, if he had been
called to testify, would have stated that the cause of death was a gunshot wound to the chest
and the manner of death was homicide.
{¶ 8} After the prosecution rested, Lee moved for a Crim.R. 29 acquittal on the
basis that the state did not put forth sufficient evidence in accordance with R.C.
2901.05(B)(1) to show that Lee did not act in self-defense. Lee argued that there was no
evidence that he did not have reasonable grounds to believe that he was in imminent danger
of great bodily harm. The state argued that it had proved all of the elements of murder and
that it was not reasonable for Lee to have believed he was in danger of imminent death or
bodily harm when he used a firearm to shoot an unarmed person after a brief fight. The
court denied Lee’s motion, stating that the jury could believe the testimony of any of the
witnesses and that Lee did not say it was self-defense until the detective suggested it in his
initial interview.
{¶ 9} On August 2, 2023, the jury returned a verdict finding Lee guilty of murder
with a firearm specification in violation of R.C. 2903.11. On August 8, 2023, the trial court
sentenced Lee to a term of 15 years to life in prison with an additional consecutive three-
year term for a firearm specification. Lee now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 10} Lee argues the following assignments of error:
(1) The trial court erred when it denied DaQuan Lee’s Rule 29
motion for acquittal.
(2) The verdict of guilt as to count two was against the manifest
weight of the evidence. No 23AP-543
III. LEGAL ANALYSIS
{¶ 11} In his first assignment of error, Lee argues that the trial court erred in
denying his Crim.R. 29 motion. A Crim.R. 29 motion for acquittal tests the sufficiency of
the evidence. [CITATION] We thus review the trial court’s
denial of appellant’s motion for acquittal using the same standard applicable to a sufficiency
of the evidence review. Id., citing [CITATION]
{¶ 12} Lee argues that the prosecution did not meet its burden in disproving self-
defense under R.C. 2901.05(B)(1). In 2019, the General Assembly shifted the burden of
proving the affirmative defense of self-defense from a defendant and instead placed on the
prosecution the burden “to disprove at least one of the elements of self-defense beyond a
reasonable doubt.” [CITATION] “[S]ufficiency of the evidence is not
the proper framework to review whether the state proved the absence of self-defense.”
[CITATION] See also [CITATION] This court has determined that in considering claims of
self-defense, the manifest weight standard is the proper standard of review. [CITATION]
Because a Crim.R. 29 motion for acquittal is not a valid method for
challenging the state’s satisfaction of its burden, we therefore overrule Lee’s first
assignment of error.
{¶ 13} In Lee’s second assignment of error, he argues that his conviction was against
the manifest weight of the evidence. We note that an appellate court reviewing a manifest
weight challenge to a criminal conviction “may not merely substitute its view for that of the
trier of fact, but must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” [CITATION] No 23AP-543
[SEGMENT 2]
Ohio St.3d 380, 387 (1997). An appellate court should reserve reversal of a conviction as
being against the manifest weight of the evidence for the most “exceptional case in which
the evidence weighs heavily against the conviction.” (Internal quotations omitted.) [CITATION].
{¶ 14} In both of his assignments of error, Lee essentially argues that the state did
not disprove that Lee acted in self-defense. Specifically, he argues that the trial court erred
in denying his Crim.R. 29 motion for acquittal and that his ultimate conviction was against
the manifest weight of the evidence. We do not agree.
{¶ 15} When deadly force is used and the accused presents evidence that tends to
support that the accused used the force in self-defense, the state must disprove at least one
of the following elements of a self-defense claim: (1) the accused was not at fault in creating
the situation giving rise to the affray, (2) the accused had a bona fide belief that he was in
imminent danger of death or great bodily harm and that his only means of escape from such
danger was in the use of such force, and (3) the accused did not violate any duty to retreat
or avoid the danger. [CITATION].
{¶ 16} At trial, the state argued that Lee did not meet the second element of a self-
defense claim. The second element of a self-defense claim entails “a combined subjective
and objective test.” [CITATION]. The trier of fact “first must consider the defendant’s situation objectively, that is, whether, considering all of the defendant’s particular characteristics, knowledge, or lack of knowledge, circumstances,
history, and conditions at the time of the attack, []he reasonably believed []he was in
imminent danger.” Id. “Then, if the objective standard is met, the [trier of fact] must
determine if, subjectively, this particular defendant had an honest belief that []he was in
imminent danger.” (Emphasis sic.) Id. at 331.
{¶ 17} The second element also requires a showing that “ ‘the defendant must have
used only that force reasonably necessary to repel the attack. That is, he must not have
used excessive force.’ ” [CITATION], quoting [CITATION], citing [CITATION], ¶ 58. Further, “[i]mplicit in the ‘second element
of self-defense, i.e., that the defendant’s use of deadly force was in “good faith,” is the
====== End of Document ====== No 23AP-543
requirement that the degree of force used was “warranted” under the circumstances and
“proportionate” to the perceived threat.’ ” [CITATION] at ¶ 58, quoting [CITATION], 4th
Dist. No. 08CA12, 2009-Ohio-4416, ¶ 31. Therefore, if “ ‘ “the amount of force used is so
disproportionate that it shows an ‘unreasonable purpose to injure,’ the defense of self-
defense is unavailable.” ’ ” Id. at ¶ 58, quoting [CITATION], 4th Dist. No. 11CA818, 2012-
Ohio-3934, ¶ 55, quoting [CITATION], 8th Dist. No. 94482, 2011-Ohio-87, ¶ 27, quoting
[CITATION], 4th Dist. No. 00CA035, 2001 Ohio App. LEXIS 1489.
{¶ 18} Here, we are not persuaded by Lee’s argument that the jury’s determination
that Lee did not act in self-defense was against the manifest weight of the evidence. Rather,
the evidence in the record supports the jury being able to determine that Lee did not have
an honest belief that he was in imminent danger of death or great bodily harm. The state
presented witnesses who testified that Lee was familiar with the friend group’s practice of
resolving arguments with boxing matches and fistfights. Witnesses stated that Lee had
been present and participated in one of these fights before and that when fights had become
too one-sided the friends in the house would break up those fights before it escalated too
far. According to witnesses, Aliyow had handed off his gun prior to the argument becoming
physical and had made a point, in passing off the gun, that he didn’t need it to resolve the
issue. This occurred in Lee’s presence. In fact, Lee stated in his interview with detectives
that Aliyow had given his gun to one of the individuals in the apartment. (State’s Ex. F at
43:03-17; 44:08.)
{¶ 19} We also note that a fact finder could reasonably determine that Lee’s
response was not proportionate to the perceived threat. Witness testimony indicated that
it was mere seconds between when Aliyow threw the first punches and when Lee drew and
fired his gun. In considering a self-defense claim involving the firing of a gun during a
fistfight, this court said:
[a]lthough the law does not quantify specifically the amount of
force a defendant is entitled to use in self-defense, the jury in
weighing the credibility of the various witnesses reasonably
could conclude defendant was the only one firing a gun and in
effect escalated a fist fight into a shoot out. As a result, even if
defendant were privileged to act in self-defense, the jury could
decide he exceeded the force he was entitled to use.
[CITATION], 10th Dist. No. 10AP-114, 2010-Ohio-6041, ¶ 41. No 23AP-543
{¶ 20} Ultimately, Lee asks this court to give greater weight to his claims of self-
defense than the jury gave to the testimony of the witnesses at trial. Lee points to
inconsistencies in witnesses’ testimony, namely that the group of friends in the apartment
lied to police when they said there was no other gun, but in fact Aliyow had a gun that night
but handed it to another individual prior to the fight. However, we recognize that a “ ‘ “ self-
defense [or defense of another] claim is generally an issue of credibility.” ’ ” [CITATION], at ¶ 78, quoting [CITATION], ¶ 41, quoting [CITATION], ¶ 57.
“ ‘ “Disputes in credibility for the purposes of evaluating self-defense [or defense of another]
are best resolved by the trier of fact.” ’ ” Id., quoting [CITATION], ¶ 41, quoting [CITATION], ¶ 24. “ ‘ “It has been held that ‘a
conviction is not against the manifest weight of the evidence because the trier of fact
believed the state’s version of events over the defendant’s version’ and rejected the
defendant’s claim of self-defense [or defense of another]. ” ’ ” Id., quoting [CITATION], ¶ 41,
quoting [CITATION], ¶ 24, quoting [CITATION], ¶ 49. “ ‘When weighing witness testimony supporting a claim of self-defense [or
defense of another], the trier of fact is “free to believe or disbelieve the testimony of the
witnesses” and “is in the best position to take into account inconsistences, along with the
witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is
credible.” ’ ” Id., quoting [CITATION], ¶ 41, quoting [CITATION], citing [CITATION], ¶ 43.
{¶ 21} Here, the jury had the opportunity to evaluate the testimony of all the
witnesses at trial and we decline to displace their determination of credibility. We therefore
overrule his second assignment of error.
IV. CONCLUSION
{¶ 22} For these reasons, we overrule both of Lee’s assignments of error and affirm
the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230591
TRIAL NOS. C-23TRD-24768-A, B
Plaintiff-Appellee, :
vs. :
O P I N I O N.
MICHAEL JUSTICE, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed in Part and Cause Remanded; Appeal
Dismissed in Part
Date of Judgment Entry on Appeal: July 5, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Michael Justice appeals his conviction, after a bench trial, for operating
[SEGMENT 3]
a motor vehicle with an invalid license plate. In two assignments of error, Justice
contends that his conviction is not supported by sufficient evidence and is contrary to
the manifest weight of the evidence. For the following reasons, we reverse the
judgment of the trial court.
Factual Background
{¶2} On September 19, 2023, Michael Justice was charged with operating a
motor vehicle without a license and operating a motor vehicle with an invalid license
plate. He pleaded not guilty and proceeded to a bench trial.
{¶3} Deputy Michael Patrustie, a patrol officer for the Hamilton County
Sheriff’s Department, testified that he was patrolling near the Three Rivers schools
when a Jeep drove past him with a license plate tag that expired in 2022. Patrustie
drove behind the car and “ran the license plate” multiple times. He learned that the
tag had expired on November 27, 2022. The vehicle that was on his computer was a
2006 Lincoln station wagon and not the Jeep that he had pulled over.
{¶4} Justice had purchased the car a week prior but could not provide any
proof that he owned the vehicle. Justice said he had an insurance card but was unable
to provide a copy because his phone was not working. Patrustie retrieved the VIN
number of the Jeep, returned to his cruiser, and ran the number. The results of his
search revealed that the 1998 Jeep was registered to a woman who lived in Amelia.
According to Patrustie, the vehicle had no license plate attached to it. Patrustie
testified that the vehicle’s registration had expired in August 2021.
{¶5} Patrustie returned to the Jeep and asked Justice for his driver’s license.
OHIO FIRST DISTRICT COURT OF APPEALS
Justice’s license had expired in 2021. Patrustie returned to his cruiser to verify the
license, and found the “license was in our system, expired, from 2021.” Patrustie
decided to tow the vehicle because the plates did not match the vehicle, Justice’s
driver’s license was invalid, and Justice could not provide proof of insurance.
{¶6} On cross-examination, Patrustie testified that Justice explained that the
plate was on the Jeep when he bought it, but Justice was unable to tell him when he
purchased the car and from whom he bought it. Justice further stated that he thought
he had 30 days to transfer the plates, and he had the car for a week. According to
Patrustie, when he ran the license plate number, he discovered that the plate on the
vehicle was registered to an owner who lived in Loveland, Ohio. Patrustie did not bring
a copy of the driver’s license or a copy of the system inquiry showing that the license
was expired.
{¶7} Justice testified that he was unaware that the plates were not valid
because they were on the car when he purchased it a week before the stop. Justice
admitted that he did not register the vehicle in his name when he purchased it, and
the car “is still in the process of being put in my name.” Justice further testified that
the dealer who sold him the car was supposed to put the vehicle in his name, and that
he had not yet obtained the title for the car.
{¶8} During closing arguments, Justice argued that the state failed to prove
that he recklessly violated the fictitious-plate statute because he was unaware that the
plates were invalid. He admitted that the driver’s license was expired.
{¶9} The trial court found Justice guilty of both charges. Justice appealed,
both charges, but in his brief, Justice does not challenge the driving-without-a- license
conviction, and he raises no assignment of error with respect to that conviction.
OHIO FIRST DISTRICT COURT OF APPEALS
Therefore, we dismiss the appeal as it relates to the A charge.
Sufficiency of the Evidence
{¶10} In his first assignment of error, Justice contends that his conviction was
not supported by sufficient evidence because the state failed to produce evidence that
he recklessly displayed a license plate registered to another vehicle.
{¶11} In reviewing a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime had been proved beyond a reasonable doubt. [CITATION]
{¶12} In relevant part, R.C. 4549.08 provides:
(A) No person shall operate or drive a motor vehicle upon the public
roads and highways in this state if it displays a license plate or a
distinctive number or identification mark that meets any of the
following criteria:
(3) Belongs to another motor vehicle, provided that this section does not
apply to a motor vehicle that is operated on the public roads and
highways in this state when the motor vehicle displays license plates
that originally were issued for a motor vehicle that previously was
owned by the same person who owns the motor vehicle that is operated
on the public roads and highways in this state, during the thirty-day
period described in division (A)(4) of section 4503.12 of the Revised
Code.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} The definition of “recklessly” is set forth in R.C. 2901.22(C):
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk
that the person’s conduct is likely to cause a certain result or is likely to
be of a certain nature. A person is reckless with respect to circumstances
when, with heedless indifference to the consequences, he perversely
disregards a known risk that such circumstances are likely to exist.
{¶14} The Legislative Commission Comment to the code section further
explains that a person acts recklessly when, “without caring about the consequences,
he obstinately disregards a known and significant possibility that his conduct is likely
to cause a certain result or be of a certain nature, or that certain circumstances are
likely to exist.”
{¶15} Justice argues that he did know that the plate was registered to another
vehicle because the plate was on the vehicle when he purchased it a week earlier. To
the extent that Justice allegedly believed that the plate was registered to the Jeep and
that he had 30 days to transfer the plate, “a ‘mistake of fact’ is not available as a defense
to a crime requiring a mental state of recklessness.” [CITATION], ¶ 18, citing [CITATION], 8 (Nov. 17, 1998) (finding the trial court did not
abuse its discretion in failing to give a jury instruction on “mistake of fact” as
defendant was not charged with a specific intent crime, but rather a crime that had the
requisite mental state of “recklessly”).
{¶16} To prove intent, the Ohio Supreme Court has recognized that “intent,
lying as it does within the privacy of a person’s own thoughts, is not susceptible [to]
OHIO FIRST DISTRICT COURT OF APPEALS
objective proof.” [CITATION]
Instead, intent must often be inferred from the act itself and the surrounding
circumstances, including the acts and statements of the defendant surrounding the
time of the offense. [CITATION]
{¶17} In this case, Justice admittedly drove a car that was not titled or
registered in his name. When he purchased the car, it contained a license plate that
he knew was not issued to him. Although Justice acknowledged that he was required
to obtain a license plate for the car, he instead chose to drive the car with a license
plate issued to another person and a tag that had expired in November 2022. The state
presented sufficient evidence that Justice acted recklessly in disregard of a known risk
by driving the car knowing he was required to obtain a plate for the vehicle. Viewing
the evidence in a light most favorable to the state, a reasonable factfinder could
conclude that Justice recklessly operated the vehicle with an invalid license plate.
{¶18} We overrule the assignment of error.
Manifest Weight of the Evidence
{¶19} Next, Justice argues that the conviction was contrary to the weight of
the evidence because the sole evidence that the plate was registered to another vehicle
was the testimony of Patrustie, and his testimony constituted inadmissible hearsay.
{¶20} In reviewing a manifest-weight challenge, an appellate court examines
the evidence in order to determine whether such evidence, if believed, would support
a conviction. [CITATION]
“The court, reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
OHIO FIRST DISTRICT COURT OF APPEALS
conflicts in the evidence, the [trier of fact] clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” Id. at 387.
{¶21} At trial, Patrustie testified, without objection, that he “ran [Justice’s]
license plate” multiple times while in his cruiser. According to the result of his
searches, the license plate tag had expired on November 27, 2022, and the license plate
was registered to a 2006 Lincoln station wagon, not Justice’s Jeep. Patrustie testified
that his search revealed that the plate on the vehicle was registered to an owner who
lived in Loveland, Ohio. Patrustie did not bring the alleged system inquiry which
[SEGMENT 4]
reportedly showed that the license was registered to another vehicle. Patrustie’s
testimony was based solely on his recollection of the information he purportedly
received from multiple, undocumented computer inquiries.
{¶22} Testimony as to the results of a computer inquiry “constitutes a textbook
example of hearsay” in that Patrustie repeated an out-of-court statement generated by
a computer inquiry, offered for the truth of the matter asserted. See [CITATION] (testimony based on
an officer’s recollection of computer data is inadmissible hearsay); [CITATION]
(officer’s testimony based on information from police computer was inadmissible
hearsay); [CITATION]
(sheriff’s testimony based on his recollection of computer generated information from
an ambiguous database was inadmissible hearsay); [CITATION]
OHIO FIRST DISTRICT COURT OF APPEALS
21, 1983) (information that the officer testified that he obtained from a computer
inquiry, regarding the status of defendant’s driver’s license, was inadmissible
hearsay). Thus, the admission of Patrustie’s testimony regarding the results of the
computer inquiry rose to the level of plain error because the testimony was the only
evidence supporting the conviction. See [CITATION] at 44.
{¶23} Although Justice contends that the admission of the hearsay resulted in
a conviction that was against the weight of the evidence, he is essentially arguing that
“that there is no evidence to support his convictions, thus raising a claim that his
convictions are based on insufficient evidence.” Id. at ¶ 33. See [CITATION], ¶ 4 (“[A]
review of the weight of the evidence necessarily involves an evaluation of the sufficiency of the evidence in that,
in order for this Court to weigh the evidence, there must be evidence to weigh.”).
{¶24} However, we are required to consider all of the evidence admitted at
trial, regardless of whether it was admitted erroneously, when reviewing claims based
on the sufficiency or manifest weight of the evidence. See [CITATION], ¶ 27, citing [CITATION], ¶ 16, citing [CITATION], ¶ 95.
Thus, even if the testimony was erroneously admitted, under our review, we must still
consider it. See [CITATION], ¶ 12.
On the record presented to the court, we cannot say that the trial
court clearly lost its way and created such a manifest miscarriage of justice that we
OHIO FIRST DISTRICT COURT OF APPEALS
must reverse the conviction. See [CITATION]. The second assignment of error is overruled.
{¶25} In his second assignment of error, Justice argued that the admission of
the hearsay testimony was plain error but presented the argument as an issue rather
than a separate assignment of error. The state was afforded the opportunity to
respond to this issue in its brief.
{¶26} “Generally, appellate courts rule on assignments of error only and do
not address mere arguments.” [CITATION]. “It is common, however, for an appellate
court to take assignments of error from appellant’s brief arguments rather than
outright refuse to address the argument in the interest of justice.” [CITATION], citing
[CITATION] (although defendant’s
brief did not contain a separate statement of the assignments of error, rather than
dismiss the appeal, the appellate court synthesized an assignment of error from the
argument portion of the brief); [CITATION] (addressing an issue not properly raised as an assignment of
error in the interests of justice); [CITATION] (addressing the merits because “the error
assigned from the trial court’s judgment is readily discernible from appellant’s
‘[s]tatement of issues presented’ ”); [CITATION] (although not properly briefed in a separate assignment
of error, an issue raised by the appellant was considered because the appellee was
afforded an opportunity to respond).
OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} In the interests of justice, we will address this argument and hold that
the conviction must be reversed because the admission of Patrustie’s testimony as to
the results of his computer inquiry, the sole evidence supporting the conviction, was
plain error. See [CITATION], at ¶ 44.
Conclusion
{¶28} Accordingly, we reverse the judgment of the trial court and remand the
cause to the trial court for a new trial consistent with this opinion with respect to the
B charge and dismiss the appeal with respect to the A charge.
Judgment reversed in part and cause remanded; Appeal dismissed in part.
CROUSE and KINSLEY, JJ., concur.
Please note:
The court has recorded its own entry this date.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-90
v. : (C.P.C. No. 18CR-2827)
Christopher Lee Cumberlander, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 25, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Paula M. Sawyers, for appellee. Argued: Paula M. Sawyers.
On brief: Lisa M. Tome, for appellant. Argued: Lisa M.
Tome.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Christopher Lee Cumberlander, appeals from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas, pursuant to a jury verdict, finding him guilty of one count of felonious assault with
firearm specification. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On June 13, 2018, appellant was indicted on one count of felonious assault in
violation of R.C. 2903.11, a second-degree felony, with a three-year firearm specification,
one count of improperly handling firearms in a motor vehicle (“improper handling”) in
violation of R.C. 2923.16, a fourth-degree felony, and one count of having weapons while No. 23AP-90
under disability (“WUD”) in violation of R.C. 2923.13, a third-degree felony. The charges arose from the shooting of Keyon Edwards.
{¶ 3} Appellant elected to waive his right to a jury trial and be tried by the court on the improper handling and WUD counts. Following a bench trial, the trial court found appellant guilty on both counts. Thereafter, the matter proceeded to a jury trial on the felonious assault with firearm specification count. The parties inform this court that after the jury was unable to reach a unanimous verdict, the trial court declared a mistrial. [CITATION]
{¶ 4} On November 14, 2022, a jury trial commenced on the felonious assault with firearm specification count. [CITATION] Plaintiff-appellee, State of Ohio, presented the following evidence.
{¶ 5} Edwards testified that in summer 2018, he resided on Pine Bluff Road in Columbus, Ohio with his then-fiancée, Tamika Jenkins, Jenkins’ daughter she shared with appellant, Jenkins’ son, and Trinity Gills Edwards, his daughter from a previous relationship. Edwards had known appellant for approximately three years. He described their relationship as “up and down.” (Tr. Vol. I at 42.) He recounted a prior incident where appellant attempted to force his way into the house, resulting in a physical altercation between the two men.
{¶ 6} On June 10, 2018, Edwards and his cousin, Benjamin Thomas, returned home from a weekend trip out of town. Edwards and Thomas went inside the house to get Gills Edwards because they were going to drive her to a relative’s home. While Edwards was inside, Jenkins’ son told Edwards that appellant was outside asking to see his daughter.
{¶ 7} Edwards and Thomas walked outside; neither was armed. Edwards saw appellant’s car parked at the bottom of the driveway, blocking Edwards’ exit. Appellant started yelling at Edwards from the car; Edwards told him to move so he could exit his driveway. Appellant told Edwards to bring his daughter outside; Edwards replied he would not do so because it was not appellant’s day to visit her. The argument escalated, with appellant ultimately threatening to shoot and kill Edwards if Edwards did not bring his
[CITATION] Appellant asserts in the Statement of the Case portion of his brief that after the jury in the first trial was unable to reach a verdict, “[t]he trial court, by way of a criminal processing sheet declared a mistrial.” (Appellant’s Brief at 5.) The state accepted appellant’s Statement of the Case in this regard.
[CITATION] Following opening statements but prior to the commencement of testimony, the jury viewed the crime scene. No. 23AP-90
daughter to him. Anticipating that appellant wanted to fight him, Edwards emptied his
pockets of his wallet, cellphone, and other items and placed them on his front lawn.
{¶ 8} Appellant then drove a short distance down the street. He exited his car, put
his hands up to signal he wanted to fight, and told Edwards to “[c]ome down here and fight.”
(Tr. Vol. I at 48.) Edwards walked toward appellant; at this point, Edwards did not see a
weapon in appellant’s hands. When Edwards got within 25-30 feet of appellant, appellant
reached into his back pocket, retrieved a gun, and immediately shot Edwards once in the
upper left thigh.
{¶ 9} Realizing he had been shot and fearing appellant would shoot at him again,
Edwards turned around, walked back to his house, and told Jenkins to call 911. He then
retrieved a shotgun he kept inside the house. When Thomas tried to take the shotgun away
from him, Edwards put it inside the living room closet. Edwards then sat outside and
waited for medics to arrive; however, when the pain in his leg intensified, he decided to go
to the hospital on his own. Edwards was treated and released that day.
{¶ 10} On cross-examination, Edwards conceded that during the previous incident
with appellant, he punched appellant twice in the face because he was “trying to hurt him.”
(Tr. Vol. I at 65.) Edwards further testified that appellant and Jenkins had a “parental
agreement” regarding their daughter; however, he could not recall the details of that
agreement. (Tr. Vol. I at 66.) Edwards averred that prior to June 10, 2018, appellant had
never picked up his daughter from the house; rather, pursuant to the agreement between
appellant and Jenkins, they exchanged the child at various public locations.
{¶ 11} As to the events of June 10, 2018, Edwards testified he was “pretty sure” that
Thomas owned a gun; however, Thomas did not “have anything on him that day.” (Tr.
Vol. I at 71.) Edwards acknowledged that during his initial encounter with appellant “things
got heated,” with both men yelling at each other. (Tr. Vol. I at 72.) When appellant
threatened to kill him, he thought appellant was “just puffing up,” so he did not take him
seriously and was not afraid. (Tr. Vol. I at 75.) As to the second encounter, Edwards
admitted that when appellant exited his car and urged him to fight, he could have walked
inside his house and told Jenkins to call police or retrieve his discarded cell phone from the
front lawn and called police himself. He conceded he did not do so because he “was upset No. 23AP-90
[SEGMENT 5]
and ready to fight with [appellant].” (Tr. Vol. I at 76.) Edwards also conceded that
appellant did not move toward him after appellant exited his car and stood in the street.
{¶ 12} When questioned about testimony he provided at a previous hearing related
to the instant case, Edwards indicated he did not remember asserting that he threatened
appellant. He acknowledged he had previously testified that Thomas did not own any guns;
however, he now averred he was not aware that Thomas owned a gun until the incident on
June 10, 2018.
{¶ 13} On redirect examination, Edwards reiterated that while appellant was seated
in his car at the bottom of the driveway, he threatened to kill Edwards; specifically,
appellant told Edwards “[i]f you don’t get away from my car, I’m gonna shoot you. I’m
gonna kill you.” (Tr. Vol. I at 85.) Edwards averred he did not see appellant with a weapon
when appellant was seated in his car. He also testified Thomas did not take a weapon with
him on their weekend trip, did not have a weapon on him at the time of the incident, and
never told Edwards he had a weapon.
{¶ 14} Thomas testified he owned several guns; but he did not take a gun with him
on the weekend trip because Edwards had asked him not to bring a gun with him. When
he and Edwards returned from their trip, Edwards parked in his driveway and the two
began unloading the car. While Edwards was in the house, appellant pulled up and asked
Thomas to bring his daughter to him because he wanted to take her to a cookout. Because
Thomas did not know appellant, he told him he would have to discuss the situation with
Edwards. After Thomas reported the conversation to Edwards, Edwards came outside,
approached appellant as he sat in the car, and told him he could not take his daughter
because it was not his day to visit her. Appellant got angry, started cursing at Edwards, and,
using expletives and a derogatory racial slur, told his wife that he was “about to shoot”
Edwards. (Tr. Vol. I at 98.) Based on appellant’s threatening language, Thomas informed
Edwards he thought appellant had a gun. Edwards told appellant he could not have his
daughter and that he should leave; he did not threaten appellant.
{¶ 15} Appellant angrily “pulled off a little bit” and parked on the opposite side of
the street. (Tr. Vol. I at 101.) Thomas told Edwards he believed appellant was afraid of
Edwards and would try to shoot him; as such, he urged Edwards not to approach appellant.
Appellant then “backed back up” to Thomas and Edwards; both appellant and Edwards No. 23AP-90
were angry and continued cursing at each other. (Tr. Vol. I at 102.) Appellant then “pulled
off” again and parked in front of a house located down the street on Pine Bluff Road. (Tr.
Vol. I at 102.) Appellant got out of his car and started yelling and cursing at Edwards. At
this point, Thomas did not see a weapon on appellant’s person. Thomas saw a woman
standing on the front porch of the house where appellant was parked. Edwards told
Thomas he wanted to get appellant away from the neighbor’s house, so he handed Thomas
his wallet and cellphone and walked toward appellant. When Edwards was approximately
20 feet from appellant, appellant pulled a gun from his pocket and shot Edwards without
warning. Thomas dropped Edwards’ wallet and cellphone and told appellant he was
“gonna get [his] ass” for shooting Edwards; appellant responded, “[s]hut up before I kill
your ass.” (Tr. Vol. I at 115.) Edwards then walked back to his house and retrieved a
shotgun. Before Edwards left the house, Thomas took the shotgun away because he did not
want Edwards to retaliate against appellant. According to Thomas, Edwards was unarmed
and never threatened to shoot appellant. After the shooting, Thomas drove Edwards to the
hospital.
{¶ 16} On cross-examination, Thomas acknowledged that appellant “pulled up cool”
to Edwards’ house and just asked Thomas to get his daughter. (Tr. Vol. I at 116.) Thomas
further acknowledged that he owned several guns and always carried one with him. He was
not carrying a gun on June 10, 2018 because Edwards, who knew that Thomas owned
several guns, asked him not to bring one with him on their weekend trip. Thomas conceded
that in previous proceedings involving the incident at issue he had never testified that
Edwards requested he not bring a gun with him. He attributed the lack of testimony to the
fact that he had never been questioned about the issue. Thomas also conceded he did not
call 911 after appellant shot Edwards. On redirect examination, Thomas testified he had a
“clean” criminal record and was legally permitted to own a gun.
{¶ 17} Gills Edwards testified she was 14 years old on June 10, 2018. On that date,
she was loading some items into Edwards’ vehicle when appellant pulled up in the front of
the house and requested to take his daughter with him. Edwards told appellant to leave
and the two started arguing. Edwards then emptied his pockets and placed the items on
the ground. Appellant exited his car and Edwards walked toward him with his hands up as
if to say “[y]ou gotta go.” (Tr. Vol. II at 15.) Edwards did not have a weapon and did not No. 23AP-90
threaten appellant. At this point, Gills Edwards did not see a weapon on appellant’s person
or clothing. However, she observed appellant’s arm move as Edwards approached him.
She then heard a gunshot and saw Edwards walking back to the house holding his thigh.
Edwards retrieved a shotgun from the house but did not use it. Edwards, Thomas, and Gills
Edwards drove to the hospital. When they arrived, police were present with guns drawn;
Gills Edwards assumed the police thought they were suspects in the shooting.
{¶ 18} On cross-examination, Gills Edwards testified that Edwards was standing
near the house and appellant was sitting in his car in the street when the two first started
arguing; Edwards did not approach appellant’s car at that time. Edwards eventually
approached appellant’s car; Gills Edwards then got into the back seat of Edwards’ car.
Because the windows were rolled up, she could not really hear what the two men were
saying. She acknowledged that when interviewed by police after the incident, she reported
she did not get a good look at the gun used to shoot Edwards.
{¶ 19} Kathy Garrett testified that she lived on Pine Bluff Road on June 10, 2018.
Prior to that date, she had interacted with Edwards occasionally but did not know him well.
On the day of the incident, Garrett was painting a glider on her front porch when she heard
Edwards and another man (whom she identified at trial as appellant) arguing. Edwards
was standing in his front yard; appellant was sitting in a car. After Edwards told appellant
to leave, appellant drove past her house; however, he eventually backed up and parked in
front of her house. Appellant then exited his car, stood in the middle of the street, and
urged Edwards to come toward him. Garrett did not see a weapon on either Edwards or
appellant. Edwards approached appellant; when he was less than a car length from
appellant, Garrett heard a gunshot and saw that Edwards had been shot. Although she did
not see a weapon in appellant’s hand, she was certain appellant had fired the gunshot. She
heard a man who was with Edwards say “[h]e shot my boy, he shot my boy.” (Tr. Vol. II at
54.) Garrett called 911 to report the shooting. Appellant remained at the scene until police
arrived.
{¶ 20} The state played Garrett’s 911 call for the jury.3 During the 911 call, Garrett
reported her address as 5439 Pine Bluff Road and stated that appellant “shot again.” (Tr.
3 The audio recording of Garrett’s 911 call is part of the record on appeal. (State’s Ex. H1.) The audio recording
was not transcribed. No. 23AP-90
Vol. II at 62.) At trial, she admitted she lied about her address because she was afraid to
provide her real address and that she was mistaken about appellant firing more than one
shot.
{¶ 21} On cross-examination, Garrett reiterated that appellant initially pulled up in
front of Edwards’ house and remained seated in his car. Edwards and another man walked
up to appellant’s car; appellant and Edwards then engaged in a heated argument. Appellant
eventually parked in front of Garrett’s house, got out of his car, and told Edwards to come
toward him. Edwards then walked toward appellant. When he reached the trunk of
appellant’s car, Garrett heard the gunshot and saw Edwards fall.
{¶ 22} Todd A. Cramblett testified he was a patrol officer with the Columbus
Division of Police (“CPD”) on June 10, 2018.4 On that date, he responded to a 911 call of a
shooting on Pine Bluff Road. When Officer Cramblett arrived at the scene, he observed a
man, later identified as appellant, standing by a parked car on the side of the street in front
of a house on Pine Bluff Road. Appellant reported he had discharged a gun during a dispute
and that the gun was inside his car. Officer Cramblett recovered a gun and holster from the
driver’s side door of the car. The victim of the shooting was not at the scene. According to
Officer Cramblett, appellant was non-threatening and cooperative. On cross-examination,
Officer Cramblett reiterated that appellant was cooperative, reported what had happened,
and directed him to the gun inside the car.
{¶ 23} CPD Detective Richard D. Criner, Jr.5 testified that on June 10, 2018 he was
dispatched to the scene as a member of the Crime Scene Search Unit. In that capacity, he
collected and documented evidence recovered from the scene. At trial, Detective Criner
identified numerous photographs taken in connection with the investigation. He also
identified a gun, holster, shell casing, and spent projectile recovered from the scene, CPD
laboratory reports pertaining to examination of the gun, and the 911 call made by Garrett.
{¶ 24} Following the presentation of witness testimony, the state entered into the
record joint stipulations establishing the gun recovered from the scene was operable, the
[SEGMENT 6]
4 Officer Cramblett testified that at the time of trial he was a detective with CPD Major Crimes Bureau. Because
he was a patrol officer at the time of the events at issue here and his testimony relates to that time period, we
shall refer to him as Officer Cramblett.
5 Detective Criner testified he is now retired from CPD. No. 23AP-90
spent projectile was fired from the gun, and that the spent cartridge casing could not be
eliminated as having been fired from the gun.
{¶ 25} At the conclusion of the state’s case, defense counsel moved to dismiss the
felonious assault charge pursuant to Crim.R. 29 contending the state did not meet its
burden of proof. The trial court denied the motion without explanation.
{¶ 26} Thereafter, appellant testified as the sole witness in the defense case.
Appellant stated he had known Edwards for approximately ten years. In 2017, he and
Edwards had an argument which ultimately led to a physical altercation. During the fight,
Edwards punched appellant several times in the face and stomped on him with his steel-
toed work boots. As a result, appellant suffered an orbital fracture.
{¶ 27} Appellant further testified he and Jenkins had a previous relationship and the
two shared parenting duties for their five-year-old daughter. The daughter lived with
Jenkins and Edwards. He and Jenkins typically exchanged their daughter at public
locations.
{¶ 28} On June 10, 2018, appellant, along with his wife and step-daughter, drove to
the Edwards/Jenkins home to see his daughter. As he had done since the incident in 2017,
appellant parked across the street from the house and honked the horn to signal his arrival.
Jenkins’ son walked over to appellant’s car; appellant invited him and the rest of the family
to a cookout he was hosting later that day. After the boy went inside the house, Edwards
and Thomas (whom appellant did not know) came outside and walked up to appellant’s
car. Edwards began cursing at appellant, put his hand inside the car through the open
driver’s window, and told him to leave the neighborhood. Appellant noticed Thomas had a
gun tucked in his waistband underneath his shirt. Thomas became agitated and suggested
to Edwards that the two “shoot this car up.” (Tr. Vol. II at 137.) Appellant believed Thomas’
threat was real. Appellant did not respond verbally; instead, he moved his car
approximately 30 feet down the street. Appellant moved his car again and told his wife to
summon police to check on his daughter. He did not want to leave the area because he was
concerned about his daughter being inside the house while Edwards and Thomas were
exhibiting aggressive behavior.
{¶ 29} Through his rearview mirror, appellant observed Edwards and Thomas
“doing something” in Edwards’ front yard. (Tr. Vol. II at 143.) He then saw Thomas hand No. 23AP-90
“something” to Edwards, after which Edwards ran toward appellant’s car. (Tr. Vol. II at
143.) Appellant felt “[t]hreatened” by Edwards’ action and had to “think quick and do
something.” (Tr. Vol. II at 153.) Worried that Edwards was going to carry through with
Thomas’ suggestion about “shoot[ing] up the car,” appellant retrieved a gun from his car;
he then exited the car because he did not want his family to be shot. (Tr. Vol. II at 144-45,
153.) Appellant observed Edwards “reaching * * * [o]n his waist” for what appellant
believed was a gun. (Tr. Vol. II at 146.) When Edwards got close enough to appellant,
appellant pressed his gun directly against Edwards’ thigh and shot him. Edwards said, “Oh,
shit, you shot me.” (Tr. Vol. II at 146.) Appellant responded, “No shit. If you stick around,
I’m gonna shoot you some more.” (Tr. Vol. II at 146.) Appellant also told Thomas, who was
standing nearby, “If you come closer, I’m gonna shoot you, too.” (Tr. Vol. II at 147.)
{¶ 30} After the shooting, Edwards and Thomas walked away. Appellant called 911.
The defense played appellant’s 911 call for the jury.6 During the call, appellant reported
Edwards approached him while he was sitting in his car and tried to assault him. Appellant
can be heard telling Thomas that he was “still right here.” (Def. Ex. 5.)
{¶ 31} Appellant testified that while he was on the 911 call, he saw Edwards and
Thomas enter Edwards’ house. Soon thereafter, he observed the two men “wrestling” with
a shotgun on the front porch. (Tr. Vol. II at 151.) Eventually, Edwards and Thomas got into
a car and drove away. Police arrived at the scene moments later. Appellant reported what
happened and directed police to the gun inside his car.
{¶ 32} On cross-examination, appellant testified he filed a complaint against
Edwards following the 2017 altercation; however, he did not know whether Edwards was
ever charged. Regarding the incident on June 10, 2018, appellant acknowledged that his
decision to pick up his daughter that day was not in accordance with any court-ordered
visitation schedule. He also acknowledged he did not leave the neighborhood or call 911
when he first saw that Thomas had a gun and he never told police that Thomas had a gun.
He conceded that neither Edwards nor Thomas shot at him. However, he stated that he
“wouldn’t * * * wait for that to happen.” (Tr. Vol. II at 168.) He further conceded that when
6 The audio recording of appellant’s 911 call is part of the record on appeal. (Def. Ex. 5.) The audio recording
was not transcribed. No. 23AP-90
he saw Edwards “running up on” him, he grabbed a gun from between the front seats,7
exited his car with the gun in his hand, and immediately shot Edwards at “[p]oint blank
range” while the gun was pressed against Edwards’ thigh. (Tr. Vol. II at 175-77.) He
acknowledged police found the gun in the driver’s side door of his car.
{¶ 33} As to the 911 call, in response to the state’s suggestion that he did not sound
fearful when he told Thomas he was “right here,” appellant explained that he was afraid
prior to the time he shot Edwards; however, after he shot Edwards, he was no longer afraid
because he believed Edwards and Thomas were no longer threats. (Tr. Vol. II at 167.) He
further stated that telling Thomas he was “right here” was meant to caution Thomas not to
further engage with him because he had a gun.
{¶ 34} On redirect examination, appellant estimated that only a “few seconds”
transpired between the time he saw Edwards running toward his car and when he shot him;
as such, he did not have time to issue warnings or make decisions. (Tr. Vol. II at 188.) As
to the statement on the 911 call that he was “right here,” appellant explained that after he
shot Edwards, he still perceived Thomas to be a threat to him and his family because
Edwards had returned the gun to Thomas and Thomas was “standing there with the gun
making these threats.” (Tr. Vol. II at 189.) Appellant’s comment was intended to caution
Thomas not to make any more “bad choices.” (Tr. Vol. II at 190.)
{¶ 35} At the conclusion of the defense’s case, defense counsel renewed the Crim.R.
29 motion without argument; the trial court summarily denied the motion.
{¶ 36} Following deliberations,8 the jury returned a verdict of guilty on the felonious
assault with firearm specification count. On January 12, 2023, the trial court conducted a
sentencing hearing. The court imposed a 3-year sentence on the felonious assault count, a
mandatory 3-year sentence on the accompanying firearm specification, an 18-month
7 Appellant surmised that his wife dropped the gun and her cell phone between the front seats when she tried
to call police.
8 During deliberations, the jury submitted two questions. The first question asked: “What is the visitation and
custody legal agreement between [appellant], Tamika, and kids?” (Tr. Vol. III at 84-85.) Without objection
from either party, the trial court instructed the jury that it had already received all the evidence in the case.
The second question asked: “If we the jury cannot come to an agreement what are our next steps?” (Tr. Vol. IV
at 4.) At the state’s request and over the objection of defense counsel, the trial court instructed the jury
pursuant to [CITATION]. Approximately two hours after the trial court provided the [CITATION] instruction, the jury indicated that it had reached a verdict. Appellant does not challenge the
[CITATION] instruction on appeal. No. 23AP-90
[SEGMENT 7]
sentence on the improper handling count, and a 12-month sentence on the WUD count.
The court ordered the sentences for felonious assault and firearm specification to run
consecutively to each other and concurrently with the improper handling and WUD counts
and concurrently with his conviction in an unrelated case. The trial court memorialized
appellant’s conviction and sentence in a judgment entry issued January 13, 2023.
II. Assignment of Error
{¶ 37} In a timely appeal, appellant advances a single assignment of error for our
review:
APPELLANT’S CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
OF HIS RIGHT TO DUE PROCESS AS GUARANTEED BY
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.
III. Analysis
{¶ 38} In his sole assignment of error, appellant argues that his conviction for
felonious assault with firearm specification is against the manifest weight of the evidence.
More particularly, appellant argues the state failed to disprove beyond a reasonable doubt
that he was not acting in self-defense or in defense of another when he shot Edwards.
{¶ 39} When presented with a manifest weight challenge, an appellate court sits as
a “thirteenth juror” and may disagree “ ‘with the factfinder’s resolution of the conflicting
testimony.’ ” [CITATION], quoting [CITATION], citing [CITATION]. In making this determination, an appellate court “ ‘review[s] the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.’ ” [CITATION], quoting [CITATION]. “ ‘The discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against the conviction.’ ” Id.,
quoting [CITATION]. Further, reversal of a jury verdict on manifest weight grounds
requires unanimous concurrence of all three judges on the court of appeals panel reviewing
the case. [CITATION], citing Article IV, Section 3(B)(3) of the Ohio Constitution. No. 23AP-90
{¶ 40} Appellant was convicted of felonious assault pursuant to R.C. 2903.11(A)(2),
which provides in part that “[n]o person shall knowingly * * * [c]ause or attempt to cause
physical harm to another * * * by means of a deadly weapon.” Appellant does not dispute
the evidence in the record supports the finding that he committed felonious assault when
he knowingly caused physical harm to Edwards with a deadly weapon. Instead, appellant
argues the jury lost its way in concluding that he did not act in self-defense or defense of
another in committing felonious assault.
{¶ 41} Historically, self-defense has been an affirmative defense, requiring an
accused to prove the elements of self-defense or defense of another9 by a preponderance of
the evidence. [CITATION]. However, effective March 28, 2019, the General Assembly amended
R.C. 2901.05, Ohio’s self-defense statute. R.C. 2901.05(B)(1) now provides in relevant part:
“[a] person is allowed to act in self-defense, [or] defense of another. * * * If, at the trial of a
person who is accused of an offense that involved the person’s use of force against another,
there is evidence presented that tends to support that the accused person used the force in
self-defense [or] defense of another, * * * the prosecution must prove beyond a reasonable
doubt that the accused person did not use the force in self-defense [or] defense of another
* * * as the case may be.”
{¶ 42} Thus, pursuant to R.C. 2901.05(B)(1), an accused no longer bears the burden
of establishing the elements of self-defense or defense of another by a preponderance of the
evidence. [CITATION]. Rather, when an accused presents evidence that tends to support
that the accused used force against another in self-defense or defense of another, the state
must disprove at least one of the elements of self-defense or defense of another beyond a
reasonable doubt. [CITATION]. “The state’s new burden of disproving the defendant’s self-
defense claim beyond a reasonable doubt is subject to a manifest-weight review on appeal.”
[CITATION].
{¶ 43} The elements of a self-defense or defense of another claim differ depending
on whether the accused employed deadly or non-deadly force to defend against their
perceived assailant. [CITATION].
9 Defense of another requires proof of the same elements as self-defense. [CITATION]. No. 23AP-90
There is no doubt that appellant employed deadly force, as he shot Edwards with a
handgun. See [CITATION] (“A gun may inflict
death * * * in the manner for which it was designed by firing a bullet.”); See also [CITATION] (“The use of a gun constitutes the use
of deadly force.”); R.C. 2901.01(A)(2) (defining “[d]eadly force” as “any force that carries a
substantial risk that it will proximately result in the death of any person”). When deadly
force is used, the state must disprove at least one of the following elements of a self-defense
or defense of another claim: (1) the accused was not at fault in creating the situation giving
rise to the affray, (2) the accused had a bona fide belief that he was in imminent danger of
death or great bodily harm and that his only means of escape from such danger was in the
use of such force, and (3) the accused did not violate any duty to retreat or avoid the danger.
Messenger at ¶ 14, citing [CITATION]. To state it in the
affirmative, when deadly force is used, the state must prove beyond a reasonable doubt that
the accused “ ‘(1) was at fault in creating the situation giving rise to the affray, OR (2) did
not have a bona fide belief that he was in imminent danger of death or great bodily harm
for which the use of deadly force was his only means of escape, OR (3) did violate a duty to
retreat or avoid the danger.’ ” (Emphasis sic.) [CITATION], quoting Messenger at ¶ 36, quoting Carney at ¶ 31.
{¶ 44} Regarding the first element of a self-defense/defense of another claim, the
concept that an accused must not be at fault in creating the situation giving rising to the
situation “ ‘is broader than simply not being the immediate aggressor.’ ” [CITATION], quoting [CITATION]. “ ‘A person may not provoke an assault or voluntarily enter
an encounter and then claim a right of self-defense.’ ” Id., quoting Elam at ¶ 14. “[A]
multitude of courts have found that a defendant is at fault in creating the situation giving
rise to the affray * * * when he chooses to confront the victim, chooses to knowingly go to a
place where the victim will be or refuses to move in a direction away from the victim, even
when the defendant’s action was otherwise completely lawful.” [CITATION].
{¶ 45} The second element of a self-defense/defense of another claim employs “a
combined subjective and objective test.” [CITATION].
====== End of Part of Court Ruling ====== No. 23AP-90
The trier of fact “first must consider the defendant’s situation objectively, that is, whether,
considering all of the defendant’s particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack, []he
reasonably believed []he was in imminent danger.” (Emphasis sic.) Id. “Then, if the
objective standard is met, the [trier of fact] must determine if, subjectively, this particular
defendant had an honest belief that []he was in imminent danger.” (Emphasis sic.) Id. at
331.
{¶ 46} One component of the second element entails a showing that “ ‘the defendant
must have used only that force reasonably necessary to repel the attack. That is, he must
not have used excessive force.’ ” Jamii at ¶ 77, quoting [CITATION], ¶ 41, citing [CITATION], ¶ 58. Further, “[i]mplicit in the ‘second element of self-defense, i.e., that the defendant’s
use of deadly force was in “good faith,” is the requirement that the degree of force used was
“warranted” under the circumstances and “proportionate” to the perceived threat.’ ” [CITATION] at ¶ 58, quoting [CITATION], ¶ 31. “Thus,
‘ “[i]f * * * the amount of force used is so disproportionate that it shows an ‘unreasonable
purpose to injure,’ the defense of self-defense is unavailable.” ’ ” Id. at ¶ 58, quoting [CITATION], ¶ 55, quoting [CITATION], ¶ 27, quoting [CITATION]
(Mar. 27, 2001).
{¶ 47} As to the third element of a self-defense/defense of another claim, i.e., the
“duty to retreat” requirement, we note that effective April 6, 2021, the General Assembly
amended R.C. 2901.09 as to that element. R.C. 2901.09(B) provides in relevant part: “For
purposes of any section of the Revised Code that sets forth a criminal offense, a person has
no duty to retreat before using force in self-defense [or] defense of another * * * if that
person is in a place in which the person lawfully has a right to be.” R.C. 2901.09(C) further
provides that “[a] trier of fact shall not consider the possibility of retreat as a factor in
determining whether or not a person who used force in self-defense [or] defense of another No. 23AP-90
[SEGMENT 8]
* * * reasonably believed that the force was necessary to prevent injury, loss, or risk to life
or safety.”10
{¶ 48} Here, the offense occurred on June 10, 2018 and the jury trial commenced on
November 14, 2022. As already noted, the amendments to R.C. 2901.09 were effective
April 6, 2021. Thus, the statute was amended after the offense was committed but prior to
the commencement of trial. On November 15, 2022, the state filed a memorandum of law
opposing retroactive application of R.C. 2901.09 as amended. The trial court and the
parties addressed the issue during discussion of the jury instructions. Reiterating its
argument opposing retroactive application of R.C. 2901.09 as amended, the state requested
a jury instruction that appellant had a duty to retreat. Defense counsel argued that the
amended version of R.C. 2901.09 should be applied retroactively and requested an
instruction that appellant had no duty to retreat. Noting that the retroactivity question is
“still under review,” the trial court opined that the amended version of R.C. 2901.09 should
be applied retroactively; in accordance with that finding, the court instructed the jury that
appellant had no duty to retreat. (Tr. Vol. III at 6.)11 Accordingly, the parties focus on the
first two elements of a self-defense/defense of another claim.
{¶ 49} Before addressing appellant’s specific arguments pertaining to his self-
defense/defense of another claim, we note that “ ‘ “[a] self-defense [or defense of another]
claim is generally an issue of credibility.” ’ ” Jamii at ¶ 78, quoting [CITATION], quoting [CITATION]. “ ‘ “Disputes in credibility for the purposes of evaluating self-
10 The effect of the 2021 amendment to R.C. 2901.09, which is now widely referred to as the “stand your
ground” law, is to expand the “no duty to retreat” exception from the person’s residence or vehicle to any place
where the person is lawfully entitled to be. [CITATION].
11 We note this court referenced the retroactivity issue in a footnote appearing in [CITATION], a case where the defendant both committed and was convicted of a criminal
offense prior to the effective date of amended R.C. 2901.09. There, we agreed with the conclusion reached by
the First District Court of Appeals in [CITATION], that there is
no language in R.C. 2901.09 suggesting that the General Assembly intended the statute to be applied
retroactively. [CITATION]. We further note there is pending litigation in the Supreme Court of Ohio
regarding the retroactivity issue. See [CITATION]. Finally,
we note the state did not file a motion for leave to cross-appeal the trial court’s “no duty to retreat” jury
instruction, presumably because appellant was convicted of the offense. The state makes only a passing
reference to the retroactivity issue in its brief: “Despite the fact that the offense occurred in 2018, the trial
court provided jury instructions that were consistent with the self-defense law as it existed in 2022, the date
of the trial, which included the ‘stand your ground’ part of the law.” (State’s Brief at 9.) No. 23AP-90
defense [or defense of another] are best resolved by the trier of fact.” ’ ” Id., quoting
[CITATION] at ¶ 41, quoting [CITATION], ¶ 24. “ ‘ “It has been held that ‘a conviction is not against the manifest weight of the evidence
because the trier of fact believed the state’s version of events over the defendant’s version’
and rejected the defendant’s claim of self-defense [or defense of another].” ’ ” Id., quoting
[CITATION] at ¶ 41, quoting [CITATION] at ¶ 24, quoting [CITATION], ¶ 49. “ ‘When weighing witness testimony supporting a claim of self-
defense [or defense of another], the trier of fact is “free to believe or disbelieve the testimony
of the witnesses” and “is in the best position to take into account inconsistences, along with
the witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is
credible.” ’ ” Id., quoting [CITATION] at ¶ 41, quoting [CITATION] at ¶ 24, citing [CITATION],
¶ 43.
{¶ 50} Appellant first contends the state did not disprove that he was not at fault in
creating the situation giving rise to his use of deadly force against Edwards. Appellant
maintains the undisputed evidence establishes that Edwards initially confronted him while
he was sitting in his car, appellant moved his car down the street to avoid any confrontation
with Edwards, and Edwards re-initiated the confrontation by approaching his car in a
threatening manner after appellant moved it.
{¶ 51} The state counters that the evidence as to who initiated and/or re-initiated
the confrontation between Edwards and appellant is in dispute. The state maintains
Edwards, Thomas, and Gills Edwards all testified that appellant initiated the confrontation,
and appellant was the only witness who testified that Edwards initiated it. As to re-
initiation, the state highlights the testimony of Edwards, Thomas, and Garrett that
appellant exited his car after parking in front of Garrett’s house and invited Edwards to
fight him.
{¶ 52} As to the initial encounter, Edwards testified that after he refused to bring
appellant’s daughter to him, an argument ensued, resulting in appellant’s threat to shoot
and kill Edwards. Thomas’ testimony generally corroborated that provided by Edwards.
Thomas averred that appellant became angry when Edwards refused appellant’s request to
see his daughter and appellant told his wife that he was going to shoot Edwards. Based on No. 23AP-90
that threat, Thomas thought appellant had a gun and warned Edwards accordingly.
According to Thomas, Edwards never threatened appellant.
{¶ 53} Appellant testified to a different version of the initial encounter. According
to appellant, Edwards began cursing at appellant and put his hand inside the car through
the open driver’s window. Appellant saw that Thomas had a gun under his shirt and heard
him suggest to Edwards that the two shoot up appellant’s car. Appellant then moved his
car down the street to avoid a confrontation with Edwards.
{¶ 54} Regarding re-initiation of the confrontation, Edwards testified that after
appellant moved his car down the street, he parked, got out of the car, exhibited a fighting
posture, and invited Edwards to fight him. Edwards readily acknowledged on cross-
examination that he engaged with appellant because he was upset and wanted to fight him.
Thomas testified that appellant exited his car and yelled and cursed at Edwards. Garrett
testified that after appellant parked his car in front of her house, he got out, stood in the
middle of the street, and urged Edwards to come toward him.
{¶ 55} During his testimony, appellant averred that after the initial encounter with
Edwards, he remained in the area only to ensure his daughter’s safety. He further averred
that after he drove away from Edwards’ home and parked his car, he saw Thomas hand
something to Edwards, after which Edwards ran toward appellant’s car in a threatening
manner.
{¶ 56} Given the conflicting testimony as to who initiated and/or re-initiated the
confrontation between appellant and Edwards, the jury, as the trier of fact in this case, was
best positioned to make determinations about credibility and weight of the testimony.
[CITATION]. As to the initial encounter, the jury could
have credited the testimony offered by Edwards and Thomas that appellant threatened to
shoot Edwards if he did not allow him access to his daughter and discredited appellant’s
testimony that Thomas had a gun and suggested to Edwards that they shoot appellant.
Similarly, as to re-initiation of the encounter, the jury could have credited the testimony
provided by Edwards and Garrett that appellant stood outside his parked car and invited
Edwards to fight him and discredited appellant’s testimony that Edwards ran toward him
in a threatening manner. Based on the state’s evidence, the jury could have reasonably No. 23AP-90
concluded that appellant was at least partially at fault for creating the situation giving rise
to the shooting of Edwards.
{¶ 57} Moreover, even if we were to agree with appellant that the state did not
disprove that he was not at fault in creating the situation giving rise to the shooting of
Edwards, we cannot find the jury clearly lost its way in finding the state disproved that
appellant had a reasonable and honest belief that he or his family were in imminent danger
of death or great bodily harm and the only means of escape from the danger was in the use
of deadly force. As noted above, the state needed only disprove one of the elements of his
self-defense/defense of another claim.
{¶ 58} Appellant argues he reasonably and honestly believed he and his family were
in danger of death or great bodily harm and that the only means of escape from the danger
was by shooting Edwards. In support of his argument, appellant relies on his own
testimony that Thomas had a gun under his shirt and he observed Thomas hand Edwards
what he believed to be that same gun moments before he saw Edwards reach toward his
waist, presumably to retrieve the gun, as he ran toward him. Appellant asserts that “also
present in [his] mind” was his prior altercation with Edwards during which he sustained
serious physical injuries. (Appellant’s Brief at 13.) Further, citing Thomas’ admission that
he owned multiple firearms, appellant challenges the credibility of Thomas’ testimony that
he was not carrying a gun on the day of the incident. Finally, appellant claims that his
actions after the shooting, i.e., calling 911, remaining at the scene, and cooperating with law
enforcement, “are indicative of a man who believed he needed to defend himself.”
(Appellant’s Brief at 14.)
{¶ 59} The state counters the jury was free to disbelieve appellant’s account of the
incident, particularly with regard to his claim that Edwards obtained a gun from Thomas
and then reached toward his waist (presumably to retrieve the gun) as he ran toward
appellant’s car. The state notes the testimony provided by Edwards, Thomas, and Gills
Edwards that neither Thomas nor Edwards had a gun at any point prior to the shooting. In
addition, the state particularly notes the testimony of Garrett, a neutral witness without
familial ties to Edwards, that she did not see a gun on Edwards’ person when he approached
appellant. No. 23AP-90
[SEGMENT 9]
{¶ 60} Under the facts presented at trial, it was within the province of the jury to
credit the testimonies offered by the state’s witnesses that Edwards did not have a gun
during his encounter with appellant and thus conclude that appellant did not have
reasonable grounds for believing there was an imminent threat of death or serious bodily
harm. Consequently, the weight of the evidence presented reflects appellant used deadly
force when he was not faced with deadly force and the degree of force used by appellant was
neither warranted under the circumstances nor proportionate to the perceived threat. See
[CITATION] at ¶ 58.
{¶ 61} Having reviewed the entire record, weighed the evidence and all reasonable
inferences, and considered the credibility of witnesses, we conclude the jury did not lose its
way and create a manifest miscarriage of justice when it found the state disproved beyond
a reasonable doubt appellant’s claim that he acted in self-defense or defense of another
when he committed felonious assault against Edwards.
{¶ 62} Appellant’s single assignment of error is overruled.
IV. Conclusion
{¶ 63} Having overruled appellant’s single assignment of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER & BOGGS, JJ., concur.
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112935
v. :
KATIA CHAPPELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 16, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-666844-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Chadwick Cleveland and Kristin M. Karkutt,
Assistant Prosecuting Attorneys, for appellee.
Russell S. Bensing, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant, Katia Chappell (“Chappell”), appeals her
conviction in the shooting death of Dominique Johnson (“Johnson”) and shooting
of Rebecca Patterson (“Patterson”), which was rendered after a jury trial. For the
reasons that follow, we affirm. In 2022, Chappell was charged in a ten-count indictment with the
following:
Count 1: aggravated murder, an unclassified felony, in violation of
R.C. 2903.01(A), with one- and three-year firearm specifications.
Count 2: murder, an unclassified felony, in violation of
R.C. 2903.02(A), with one- and three-year firearm specifications.
Count 3: murder, an unclassified felony, in violation of
R.C. 2903.02(B), with one- and three-year firearm specifications.
Count 4: attempted murder, a felony of the first degree, in violation of
R.C. 2923.02/2903.02(A), with one- and three-year firearm
specifications.
Count 5: felonious assault, a felony of the second degree, in violation
of R.C. 2903.11(A)(1), with one- and three-year firearm specifications.
Count 6: felonious assault, a felony of the second degree, in violation
of R.C. 2903.11(A)(2), with one- and three-year firearm specifications.
Count 7: felonious assault, a felony of the second degree, in violation
of R.C. 2903.11(A)(1), with one- and three-year firearm specifications.
Count 8: felonious assault, a felony of the second degree, in violation
of R.C. 2903.11(A)(2), with one- and three-year firearm specifications.
Count 9: tampering with evidence, a felony of the third degree, in
violation of R.C. 2921.12(A)(1).
Count 10: carrying a concealed weapon, a felony of the fourth degree,
in violation of R.C. 2923.12(A)(2).
Prior to the start of trial, the state offered Chappell a plea deal, which
would have allowed her to plead guilty to one count of voluntary manslaughter with
a three-year firearm specification, one count of felonious assault, and one count of
tampering with evidence with a possible indefinite sentence of 6–25 years in prison. Chappell rejected the plea offer, and the matter proceeded to a jury trial. At the
conclusion of trial, the jury returned a verdict of guilty on all charges, including
specifications. At her sentencing hearing, the court found that Counts 1, 2, 3, 5, and
6 and then Counts 4, 7, and 8 were allied offenses and therefore merged for
sentencing purposes. The court sentenced Chappell to life without the possibility of
parole for 25 years for merged Counts 1, 2, 3, 5, and 6, with a three-year firearm
specification from Count 1 and a three-year firearm specification from Count 4 to be
served consecutive with and prior to her underlying offenses. The court sentenced
Chappell to 11 years on Count 4 to be served concurrent to the sentences for Count 1
and Count 10 and ordered that she be sentenced to time served on Count 9. Thus,
the court sentenced Chappell to life in prison with parole eligibility after 31 years.
The following evidence was adduced at trial.
Chappell was employed at Springco, an industrial plant in Cleveland,
Ohio. On November 25, 2021, Chappell worked third shift. Springco had an unusual
work environment: employees and their friends, who seemingly could come and go
at will even though they were not employed by the company, would drink alcohol,
smoke marijuana, and have sex while working or visiting the company; these
activities were especially prevalent during third shift. What was not allowed at the
plant, however, were firearms. Witness testimony and exhibits entered into
evidence at trial established that Springco prohibited anyone from carrying firearms
into the building. Despite that rule, it is undisputed that Chappell had a firearm in The provided part of the court ruling contains no court ruling citations that need to be anonymized. Thus, no changes are required. The text will remain as is:
```
her purse, which she admitted she concealed and brought into the plant on the night
of the shooting; according to Chappell, she always carried her gun for protection.
Patterson was also working this night. It was Thanksgiving and
Patterson was drinking; she testified she drank three to six Twisted Teas over the
course of her shift. Patterson and Chappell had a history of not liking each other.
According to Patterson, Chappell had threatened to hit her the night before.
Patterson complained to management that Chappell threatened her. Patterson was
advised to try and stay out of the drama.
Patterson testified that Chappell also did not get along with Johnson.
Johnson used to work at Springco but was fired after a dispute with Chappell about
a man; Chappell had been fired also at one point but was rehired. It was also alleged
that Chappell and her cousin, Alice “Anna” Legg (who did not work at Springco but
was often there), followed Johnson around a Walmart a few months prior to the
shooting. Multiple witnesses, including defense witnesses, testified that Chappell
had a “beef” with Johnson.
The evening of the shooting, Patterson and Chappell were arguing back
and forth during their shift. Legg was visiting her cousin at the plant. According to
Patterson, Legg joined in the arguing by making threats and rolling her eyes.
Patterson repeatedly asked Chappell to leave her alone but Chappell continued to
harass her.
During this time, Patterson was exchanging text messages with
Johnson, describing what was going on. Eventually Patterson asked Johnson to pick
``` her up. Patterson explained that if Chappell was going to bring other people into the
situation, i.e. Legg, then she would too. Johnson replied, via text message, that “if I
pull up, imma shoot that hoe.” Patterson replied that she would “get this whole place
shot up with one phone call. Leave me alone, like stop,” referring to the harassment
by Chappell and Legg.
During her testimony, Patterson clarified that she did not actually
intend to shoot up her place of employment and was not carrying a weapon, but that
she and Johnson were texting in that manner because Chappell would not stop
taunting Patterson and she was irritated and ready to go home.
Johnson drove to Springco and brought along Patterson’s sister,
Barbara. When they arrived, Barbara got out of Johnson’s car and headed inside the
plant to get her sister. Approximately five minutes passed before Patterson and
Barbara walked out of the plant. During this time, Chappell brushed shoulders with
Barbara in an aggressive manner. Barbara and Patterson walked out of the plant at
[SEGMENT 10]
approximately 2:23 a.m. and hurried toward Johnson’s vehicle, which was parked
near Chappell’s vehicle in the plant’s parking lot. Chappell, carrying her purse, and
Legg followed Patterson and Barbara.
What happens next is a matter of dispute; although much of the
outside activity that night was caught on security cameras, the actual shooting was
not. Johnson was seated in the driver’s seat of her car. Patterson testified that she
was trying to get in the back seat of Johnson’s car to allow her sister to have the front
seat, but she was not able to fit into the back seat, so she went to sit in the front seat.
====== End of Court Ruling ====== Barbara, who did not testify at trial, stood outside the car waiting to get in. At this
point, according to Patterson, Chappell approached the car, pulled on the driver’s
side door handle, stated, “[T]his is the b*tch I wanted,” and started shooting.
Chappell unloaded her gun, hitting both Johnson and Patterson multiple times.
Johnson’s car sped off, coming to a stop after hitting a tall chain link fence.
Hason Fischer, a Springco supervisor, testified that he was working
that night and witnessed the shooting. Fischer, who testified for the defense, stated
that Chappell and Johnson had a “previous beef.” [CITATION]. Fischer heard Chappell
tell Johnson to get out of the car, “because of the previous beef they had. She
[Chappell] said: Get out and fight.” [CITATION].
Fischer testified that it was hard to see inside Johnson’s car because
her windows were tinted, but claims he saw three “flashes of light” come from the
inside of Johnson’s car prior to Chappell shooting her gun, testifying, “I know for a
fact three flashes.” [CITATION]. He also testified that Chappell never pulled on the door
handle; however, Chappell’s DNA was later recovered from the driver’s side door
handle.
Legg also testified for the defense. Legg testified that she saw
Patterson push Chappell shortly before the women all went outside. Chappell
pushed Patterson back. Chappell then followed Patterson and her sister outside
with the intent to engage them in a fight; Legg testified that it was Patterson who
taunted Chappell to fight. Based on the part of the court ruling provided, it appears that there are no explicit court ruling citations included in the text. Thus, no replacements are necessary.
The content remains as provided:
According to Legg, it was common for Chappell to carry a firearm for protection, and she kept it either in her car or in her purse. Legg claimed that as they were walking up to Johnson’s car, Johnson was holding a gun “and then two, maybe three seconds later, that’s when the first gunshot went off and glass hit me in the face.” Tr. 738. Legg claimed she heard two gunshots emanate from inside the car and only then, after Johnson shot twice, did Chappell unload her gun into Johnson’s car.
Chappell testified that she had owned the gun used in the shooting for about a year but admitted no one at work knew she carried a gun in her purse; Chappell claimed she had no knowledge of the plant’s no-firearms policy. Workers at the plant kept their belongings on a table at the back of the plant.
Chappell testified she had her gun in her purse when she came to work on November 25, 2021. While at work, Patterson got “amped up * * * like she wanted to fight * * * with me”; Chappell claimed that prior to Patterson getting upset, they had not exchanged any words that evening. Tr. 763-764. As Patterson went to push her, Chappell blocked the push and pushed Patterson, who fell. Fischer tried to break up the argument and sent the women to separate areas of the plant.
Chappell testified she saw Patterson and her sister leaving the building, so she ran after them. She grabbed her purse, which concealed the gun, and brought it outside with her. Chappell testified that she went outside either to fight or to smoke: “I was going to fight. But if I wasn’t going to fight, I was going to go to my vehicle and smoke” and “me and Rebecca [Patterson] were going to fight.” Tr. 766. Chappell claimed that it was Johnson who “pulled up on her” in her car
and, despite the heavy tint on Johnson’s windows, Chappell was able to see that
Johnson had a revolver and was pointing it at Legg. Chappell testified that the
interior lights were on in Johnson’s car, which aided in her ability to see inside the
car.
During cross-examination, Chappell testified that she told Johnson to
“put the gun down and fight.” Tr. 781. She also testified that she was not chasing
Patterson, rather, they were all running the same way. According to Chappell,
Johnson fired two shots before Chappell pulled her gun out of her purse and
returned fire, unloading her gun into Johnson’s car. Chappell testified she shot in
self-defense.
Chappell fired her entire magazine of 13 bullets at Johnson’s car. It
was the first time she had shot that particular gun, “[s]o after the first shot goes off,
the rest are just like automatic. * * * So even when the gun was empty, I [was] still
pulling the trigger, because I didn’t know what was going on.” (Tr. 772). Chappell
and Legg then fled in Chappell’s car, driving past Johnson’s crashed vehicle.
According to Chappell, she threw the handgun in a dumpster near her aunt’s house.
Chappell testified that she was hit by broken glass when Johnson shot
her gun from inside the car. A DNA swab of suspected blood on the steering wheel
of Chappell’s car produced a positive DNA match to Chappell that was 761 septillion
times more probable than a coincidental match to an unrelated person of the same race. She further testified that she did not have a “beef” with Johnson; any prior
disagreement had been “squashed.” Tr. 784-785.
Diane Maurice, Springco’s human resources manager, testified that
the company had been having problems with employees drinking, smoking
marijuana, and having sex during third shift. She testified that even though Johnson
was no longer employed by Springco, the company did not “per se” ban people;
Johnson was therefore allowed on the property so long as she remained in the
parking lot. Chappell worked at Springco through a temporary employment agency.
Maurice testified that all employees, whether they are a direct hire or employed by
a temporary employment company, are notified of the company’s policies and
regulations, which included a prohibition against firearms inside the factory.
Maurice testified that there were signs posted in the lobby, on every bulletin board,
and at the employee entrance that explained or reiterated the no-firearms policy.
All employees were informed of the policy in the employee handbook before they
were hired, including temporary agency employees. One of the posted signs warned
that anyone bringing firearms into the plant would be considered a trespasser and
subject to forfeiture or arrest. Another sign informed employees that “it is illegal to
have under the person’s control, convey, or attempt to convey a deadly weapon or
dangerous ordnance onto these premises. Posted pursuant to the Ohio Revised
Code.”
Johnson was struck by two of the 13 bullets Chappell fired into the car.
The fatal gunshot entered through her left lateral chest, fractured a rib, went through the lung, the heart, and then through the other side of her lung, and exited through
another rib and the skin of the upper right breast. The second gunshot wound went
from the outside to the inside of Johnson’s thigh, hit the femur, and stopped.
Johnson’s skin also had signs of pseudo stippling, caused by the bullet going through
some other object, likely glass, before striking her. Patterson also sustained two
gunshots wounds. She was taken by ambulance to the hospital and released the
same day.
Curtiss Jones, supervisor of the Cuyahoga County Medical Examiner’s
Trace Evidence Unit, testified that he examined Johnson’s clothing and car. Jones
testified that there were at least 13 bullet holes in Johnson’s car, most of them on the
side of her car. Of those 13, five defects were from the driver’s side car window.
According to Jones, two of the bullet holes, labeled I and J, showed a directionality
from the inside of the vehicle to the outside of the vehicle and one of the bullet holes,
marked J, was the first bullet to hit the window. Jones was not able to tell to a degree
of scientific certainty which of the 13 defects was made first; thus, he was unable to
tell if the first bullet came from inside the car or outside the car. Jones was also not
able to confirm the muzzle-to-target distance on any of the defects.
Jones testified that he collected gunshot residue from Johnson’s
hands, and this meant that she either fired a weapon, was in close proximity to the
shooting of a gun, or that there was a transfer of residue from some other surface.
He could not conclusively say that Johnson had shot a gun from inside her car. Detective Cramer (“Det. Cramer”) testified that he interviewed Legg
on December 7. He had a paper copy of a screenshot of the text messages between
[SEGMENT 11]
Patterson and Johnson, which he showed Legg. Det. Cramer inadvertently left them
at Legg’s house; he was later able to retrieve the papers. Shortly thereafter, on
December 13, screenshots of the text messages along with a video of Chappell were
posted on Instagram’s Cleveland Remembrance page, which is an Instagram page
that memorializes people in the area who have died.
On December 14, Chappell left a voicemail for Det. Cramer, who
returned her call, but the call went straight to voicemail. Det. Cramer left a message,
but Chappell never responded or otherwise contacted the police. Chappell was
arrested in early January 2022, approximately six weeks after the shooting.
Assignments of Error
I. The trial court erred in entering a conviction for aggravated murder
as such conviction was based upon insufficient evidence of prior
calculation and design, in violation of defendant’s right to due process
of law as guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitution.
II. The trial court erred in entering convictions for aggravated murder,
murder, and felonious assault, in violation of defendant’s right to due
process of law as guaranteed by the Fifth and Fourteenth Amendments
to the United States Constitution, as being against the manifest weight
of the evidence as to defendant’s right to self-defense.
Law and Analysis
Sufficiency of the Evidence
In her first assignment of error, Chappell contends that her conviction
for aggravated murder was supported by insufficient evidence. “In a sufficiency-of-the-evidence inquiry, the question is whether the
evidence presented, when viewed in a light most favorable to the prosecution, would
allow any rational trier of fact to find the essential elements of the crime beyond a
reasonable doubt.” [CITATION], ¶ 7, citing [CITATION], paragraph
two of the syllabus. When considering the legal sufficiency of the evidence, appellate
courts do not engage in a determination of witness credibility. [CITATION]. Rather, the relevant inquiry is whether the
evidence presented, if believed, is sufficient to support the conviction. [CITATION], ¶ 16, citing [CITATION] (Cook, J., concurring).
“The issue of whether a conviction is supported by sufficient evidence is a question
of law, which we review de novo.” [CITATION], ¶ 6, citing [CITATION] at 386.
In challenging her conviction for aggravated murder, Chappell
contends her conviction was not supported by sufficient evidence because the state
failed to prove that she acted with prior calculation and design.
Chappell was convicted in Count 1 of aggravated murder, in violation
of R.C. 2903.01(A), with one- and three-year firearm specifications. The state’s
theory was that Chappell acted with prior calculation and design when she shot and
killed Johnson. ‘“In reviewing whether evidence is sufficient to establish the prior-
calculation-and-design element of aggravated murder, a court must consider whether the evidence, when viewed in the light most favorable to the prosecution,
supports a finding that [the] defendant acted with advance reasoning and purpose
to kill.”’ [CITATION], quoting [CITATION], ¶ 2 (lead opinion), citing [CITATION], ¶ 18.
“‘Evidence of an act committed on the spur of the moment or after momentary
consideration is not evidence of a premeditated decision or a studied consideration
of the method and the means to cause a death.’” [CITATION], quoting [CITATION] at id.; see also [CITATION], ¶ 26.
“‘There is no bright-line test for determining whether a defendant’s
actions show a premeditated decision or studied consideration to kill — each case
turns on its own facts.’” [CITATION], quoting [CITATION] at ¶ 17. The Ohio Supreme
Court has identified three factors as pertinent, but not dispositive, considerations
for determining whether there was sufficient evidence of prior calculation and
design. [CITATION], citing [CITATION] at id. The three factors are: ‘‘“‘ (1) Did the
accused and victim know each other, and if so, was that relationship strained?
(2) Did the accused give thought or preparation to choosing the murder weapon or
murder site? (3) Was the act drawn out or ‘an almost instantaneous eruption of
events?’’’” [CITATION], quoting [CITATION], quoting [CITATION]. Patterson testified that both she and Johnson had a strained
relationship with Chappell. As to Johnson, Patterson testified that Chappell and
Johnson did not get along and that their strained relationship started over a male
friend; allegedly the man was dating one of Johnson’s friends and was also
simultaneously dating Chappell. Patterson testified that Chappell and Johnson had
had issues for months and both had, at one point, gotten fired from Springco due to
the situation.
Legg also testified as to the strained relationship between Chappell
and Johnson:
Prosecutor: And you know that your cousin and Dominique Johnson
had a strained relationship, right?
Legg: Correct, yeah.
Prosecutor: They didn’t get along with one another, did they?
Legg: I wouldn’t say they didn’t get along. They just didn’t tolerate
each other.
Prosecutor: They didn’t tolerate each other?
Legg: Correct.
Tr. 746.
Fischer, the previously mentioned shift supervisor, testified that
Chappell and Johnson had a “previous beef.” He heard Chappell tell Johnson to get
out of the car and fight, “because of the previous beef they had. She [Chappell] said:
Get out and fight.” The evidence shows that Chappell gave thought to the details of the
murder. After arguing with Patterson, she went and got her purse that concealed a
loaded gun. Chappell chose to take her purse with the gun and pursue Patterson
and Barbara outside to where Johnson was waiting. Chappell then tried to open
Johnson’s car door, saying, “[T]his is the b*tch I want,” before shooting 13 times.
The jury could reasonably infer that with every step Chappell took towards
Johnson’s car, as she pulled her gun from her purse, and finally when she tried to
open the car door, she calculated her plan to kill Johnson.
Finally, we consider whether the shooting was an instantaneous
eruption of events. Less than a minute passed between the time Chappell stepped
out of the building to her shooting at Johnson’s car 13 times. Chappell argues that
the time frame demonstrates that the shooting was an instantaneous eruption of
events. Again, we emphasize there is no established minimum time period within
which a person can form the intent to kill.
The record reflects that at 2:23:53 a.m. one of the security cameras
captured Barbara and Patterson leaving Springco, hurrying towards the direction of
Johnson’s car. Patterson testified that she and her sister were hurrying because they
wanted to get out of there due to “everything that was going on.” Patterson further
testified that Chappell “was not far behind us, leaving out.” At 2:24:03 a.m., the
camera captures Chappell and Legg walking at a rapid pace following Patterson and
her sister. At 2:24:14 a.m., Chappell can be seen reaching into her purse, where her
gun was located. According to Patterson, at 2:24:24 a.m. she was trying to get into Johnson’s car and “it was around this point in time” that Chappell grabbed the
driver’s side door handle. At 2:24:40, Johnson’s car reenters the frame of the
security camera, speeds across the parking lot, and crashes into a fence.
Chappell relies on [CITATION] where the Ohio Supreme Court affirmed a decision from this
court that found insufficient evidence of prior calculation and design when
20 seconds elapsed between the time the defendant move out of security camera
range before shooting the victim. In [CITATION], the defendant murdered the victim in
a bar following an argument. The defendant did not know the victim and the killing
resulted from a spontaneous eruption of events. Id. at ¶ 27.
[CITATION] is distinguishable. The court did not find that the brief 20-
second time span between walking off camera and shooting was dispositive. Rather,
the court focused on facts that the defendant and the victim did not know each other,
that the killing resulted from a spontaneous eruption of events, and the defendant
had not given thought as to the murder site. Id. at ¶ 23.
Here, not only did the defendant and the decedent know each other,
but there was evidence of a strained relationship. Approximately five minutes
elapsed between the time Barbara walked into the plant to get her sister and the time
she and Patterson hurried out of the plant, followed by Chappell. Chappell’s
consideration occurred when she went to get her purse and followed Patterson
outside to fight. In [CITATION], the Ohio Supreme
Court affirmed the aggravated murder convictions of the defendant, who killed his
girlfriend’s two teenaged children. The facts established that the defendant attacked
his girlfriend in their kitchen. During the brief attack, he threatened to kill her
children. When the children came into the room, appellant pushed one of the
children and pinned the child to the floor. The girlfriend interceded and the child
[SEGMENT 12]
was able to get up and call 911. Upset that the child called police, the appellant went
to the bedroom and retrieved a gun. He then shot the two children as they were
running away from the house, firing 13 shots. The defendant estimated that from
the time he left the kitchen to grab the gun to the time he shot the children was 40
seconds. The court held that the defendant’s decision to leave the kitchen to go to
the bedroom to retrieve a loaded gun and then fire 13 shots at the victims’ backs
showed more than a “momentary impulse.” Id. at ¶ 51, citing [CITATION]. The court reasoned that even
if the appellant’s actions took less than a minute, they evinced his “determin[ation]
to complete a specific course of action” and allowed the jury to infer “that he had
adopted a plan to kill.” [CITATION at id., citing [CITATION].
Here, the evidence presented at trial was that Chappell and Johnson
had a previous disagreement and both had been let go from Springco due to the
disagreement. On the night of the shooting, Chappell had a gun in her purse and
admitted to wanting to fight. Before leaving the building to pursue Patterson,
Chappell went and got her purse containing the gun. Chappell then pursued Patterson and her sister, took her gun out of her bag, grabbed the driver’s side door
handle of Johnson’s car, ordered Johnson to get out of the car and fight, and fired
13 shots at the car, killing Johnson.
As mentioned, whether an offender acted with prior calculation and
design turns on the facts of the case; while Walker and Nicholson may be illustrative,
we consider the particularities of this case. Viewing the evidence in a light most
favorable to the state, we find sufficient evidence of the elements of aggravated
murder.
The first assignment of error is overruled.
Self-Defense
In the second assignment of error, Chappell argues that the jury’s
rejection of her claim that she acted in self-defense was against the manifest weight
of the evidence.
When evaluating a claim that a jury verdict is against the manifest
weight of the evidence, “we review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that we must reverse the conviction and order a new
trial.” [CITATION], ¶ 168,
citing [CITATION]. Reversing
a conviction based upon the weight of the evidence should occur “‘only in the
exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins at id., quoting [CITATION]
A self-defense claim includes the following elements:
(1) that the defendant was not at fault in creating the situation giving
rise to the affray; (2) that the defendant had a bona fide belief that he
[or she] was in imminent danger of death or great bodily harm and that
his [or her] only means of escape from such danger was in the use of
such force; and (3) that the defendant did not violate any duty to retreat
or avoid the danger.
[CITATION], quoting [CITATION]
The state need only disprove one of the foregoing elements beyond a
reasonable doubt to carry its burden of persuasion. [CITATION]
In 2019, 2018 Am.Sub.H.B. No. 228 (“H.B. 228”) took effect,
amending Ohio’s self-defense statute. Before the amendments, a defendant
claiming self-defense had the burden of proving the elements of self-defense by a
preponderance of the evidence. [CITATION] A defendant claiming self-
defense now no longer has the burden of proving its elements by a preponderance
of the evidence; under H.B. 228, the burden of proof is as follows:
If, at the trial of a person who is accused of an offense that involved the
person’s use of force against another, there is evidence presented that
tends to support that the accused person used the force in self-defense,
* * * the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense * * *. Nicholson at id., citing R.C. 2901.05(B)(1).
Thus, under the applicable version of the statute, the state’s burden to
prove that Chappell did not act in self-defense was triggered when Chappell
produced legally sufficient evidence of self-defense. Nicholson at id.
At the close of trial, the trial court provided the jury with an
instruction regarding self-defense, which means that the trial court concluded that
Chappell put forward sufficient evidence that she was acting in self-defense when
she shot and killed Johnson. The jury’s guilty verdict means that the state met its
burden of persuading the jury beyond a reasonable doubt that Chappell was not
acting in self-defense when she killed Johnson. As the Ohio Supreme Court
explained, the sufficiency-of-the-evidence standard of review applies to the
defendant’s burden of production and a manifest-weight-of-the-evidence standard
of review applies to the state’s burden of persuasion. [CITATION] at ¶ 26.
Chappell’s challenge relative to self-defense, and the convictions in
general, is whether the state met its burden of persuasion; that is, under a manifest-
weight-of-the evidence review, whether the state met its burden of persuading the
jury beyond a reasonable doubt that she was not acting in defense of herself or Legg
when she fired her gun. Id.
In [CITATION], the Ohio
Supreme Court reaffirmed that a defendant “did not need to present adequate
evidence that every reasonable person would have believed he [or she] was in
imminent danger and that deadly force was necessary,” but rather, the defendant “only needed to present adequate evidence that a reasonable person, under the same
circumstances and with [defendant’s] same subjective beliefs and faculties, would
have believed that he [or she] was in imminent danger and that deadly force was
necessary.” [CITATION]
Under Ohio’s “stand your ground” law, R.C. 2901.09(B), “a person has
no duty to retreat before using force in self-defense, defense of another, or defense
of that person’s residence if that person is in a place in which the person lawfully has
a right to be.” The trial court here instructed the jury as follows:
In determining whether the defendant in using force in self-defense
reasonably believed that the force was necessary to prevent injury, loss,
or risk to life or safety. A person has no duty to retreat before using
force in self-defense if the person was in a place in which she lawfully
had a right to be at the time the person used force. The defendant no
longer had a duty to retreat if she withdrew from the situation and no
longer participated in it, and she then had reasonable grounds to
believe and an honest belief that she was in imminent danger of great
bodily harm, and the only means of escape from that was by the use of
deadly force, even though she was mistaken as to the existence of that
danger.
A person who lawfully is an occupant of her vehicle has no duty to
retreat before using force in self-defense.
However, a person has a duty to retreat if she was at fault for creating
the situation, giving rise to the affray, if she did not have reasonable
grounds to believe and an honest belief that she was in imminent
danger of death or great bodily harm, or that she had a reasonable
means of escape from that danger, other than by use of deadly force.
(Tr. 886-887.) “‘A self-defense claim is generally an issue of credibility.’” [CITATION], quoting [CITATION]. “‘Disputes in
credibility for the purposes of evaluating self-defense are best resolved by the trier
of fact.’” Lawrence at id., quoting [CITATION]. “‘It has been held that “a conviction is not against the manifest
weight of the evidence because the trier of fact believed the state’s version of events
over the defendant’s version” and rejected the defendant’s claim of self-defense.’”
Lawrence at id., quoting [CITATION], quoting [CITATION]. “When weighing witness testimony
supporting a claim of self-defense, the trier of fact is ‘free to believe or disbelieve the
testimony of the witnesses’ and ‘is in the best position to take into account
inconsistencies, along with the witnesses’ manner and demeanor, and determine
whether the witnesses’ testimony is credible.’” Lawrence at id., quoting [CITATION] at
id., citing [CITATION].
Chappell asserts that the evidence at trial supported a claim of self-
defense, arguing that she only pulled out her gun and shot Johnson because Johnson
shot first, and she (Chappell) needed to protect herself and her cousin.
We find Chappell’s argument unpersuasive. The evidence shows that
Patterson and her sister were retreating; they were leaving the building to catch a
ride with Johnson. Chappell pursued them, looking to fight. Chappell caused the
affray between herself and Johnson when she walked outside with her gun in her purse, pulled on Johnson’s door handle, exclaimed, “[T]his is the b*tch I wanted,”
[SEGMENT 13]
and ordered Johnson to get out of the car and fight.
We are similarly unpersuaded by Chappell’s argument that she was in
imminent danger of death or serious bodily harm and that her only option for escape
was to use deadly force. Johnson, Patterson, and Patterson’s sister were actively
trying to leave the plant and go home. Chappell chose to pursue them and prevent
their egress, which would have resulted in the dissipation of any danger that
Chappell may have faced. Chappell was not being pursued or threatened and walked
up to Johnson’s closed car window to engage her. Even though scientific evidence
showed that two shots were fired from inside the car, the jury as the finder of fact
did not believe that Chappell fired in response to those two shots, but that she
murdered Johnson.
Finally, the state claimed that Chappell violated her duty to retreat
when she shot and killed Johnson because she was not lawfully on the premises due
to the concealed firearm. “[A] person has no duty to retreat before using force in
self-defense * * * if that person is in a place in which the person lawfully has a right
to be.” [CITATION], at ¶ 23. Signs posted in the
Springco facility warned employees that they are considered trespassers and are
subject to arrest if they brought firearms onto the property or premises. This no-
firearms policy was conveyed to employees via the employee handbook and all
employees, including those from temporary agencies, were made aware of the policy
upon hire. The plant had multiple signs posted around the facility warning employees of the policy. The jury could consider this evidence when determining
whether Chappell was acting in self-defense.
Considering the above, we hold that the state satisfied its burden of
proving that Chappell was not acting in self-defense when she killed Johnson and
the jury’s decision to reject Chappell’s claim of self-defense was not against the
manifest weight of the evidence.
The second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MICHAEL JOHN RYAN, JUDGE
EILEEN A. GALLAGHER, P.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112958
v. :
PAYTON CAMPBELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 2, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-669815-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jonathan Block, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant Payton Campbell appeals from his judgment of
conviction, which was rendered after a jury trial. After a thorough review of the facts
and pertinent law, we affirm. Procedural and Factual History
In May 2022, appellant was charged in a ten-count indictment.1 Counts
1, 2, and 3 named Bianca Smith as the victim and charged attempted murder in
violation of [CITATION] and [CITATION], felonious assault in violation of
[CITATION], and felonious assault in violation of [CITATION],
respectively, all with one- and three-year firearm specifications.
Counts 4, 5, and 6 named Chane’l Collins (a.k.a. “Auntie Piggy”) as the
victim and charged attempted murder in violation of [CITATION] and [CITATION],
felonious assault in violation of [CITATION], and felonious assault in violation
of [CITATION], respectively, all with one- and three-year firearm
specifications.
Counts 7 and 8 named Quasean Townsend as the victim and charged
felonious assault in violation of [CITATION] and [CITATION], respectively,
both with one- and three-year firearm specifications. The final counts — Counts 9
and 10 — named Fatihah Majid as the victim and charged felonious assault in
violation of [CITATION] and [CITATION], respectively, both with one- and
three-year firearm specifications.
The charges stemmed from an incident that occurred in the early
morning hours of March 26, 2022 outside the Medusa nightclub on St. Clair Avenue
in Cleveland. In addition to physical altercations, the incident included gunfire from
Appellant was charged with codefendants Ty’Juane Finley, a.k.a. “Ty Bri” and
Andre Jackson. There are no court ruling citations present in the provided text that need to be replaced. Therefore, the text remains unchanged.
several weapons; the shooting occurred shortly after 1:00 a.m. At trial, the state
presented 11 witnesses, which included law enforcement, three of the victims (Majid,
Smith, and Collins; Townsend did not testify), and an emergency department nurse
who treated victim Townsend. Appellant testified as well. Much of the incident was
recorded on surveillance cameras and a cell phone video, which were played
numerous times for the jury and admitted into evidence. The following facts were
revealed at trial.
Victim Collins (Auntie Piggy) and codefendant Finley (Ty Bri) were
both rap/hip-hop artists; there was animosity between the two musicians. On the
evening in question, Finley and Collins performed at a concert held in the Cleveland
“Flats,” a neighborhood known for its nightlife. The concert organizers were aware
of the animosity between the two musicians and scheduled their performances so
that they did not have to see each other. Their performances occurred without
incident.
Appellant, an Atlanta resident, was dating Finley and was in Cleveland
to see her perform. An “after-party” was scheduled to take place after the Flats
concert at another club, Medusa. Appellant, who had a CCW license, had a gun that
evening. Appellant testified that, besides Finley, he did not know anyone in
Cleveland, including victim Collins. He did generally know of the “bad blood”
between his girlfriend Finley and victim Collins, however.
Both Finley and Collins had planned to attend the after-party. Finley
and her entourage arrived at Medusa in a white SUV and Collins and her entourage arrived in a black SUV. Appellant got a ride to Medusa with the boyfriend of one of
Finley’s friends. Appellant testified that it was his intention to secure his gun in
Finley’s vehicle before going into Medusa. However, he noticed a commotion upon
exiting the vehicle he came in. Appellant testified that he saw his girlfriend Finley
yelling at a group in a black SUV and he just looked on because “you got to observe
something before you jump into it or get involved.” He thought one of the people
Finley was yelling at may have been Collins (Auntie Piggy) and it was confirmed
when he heard someone say, “Piggy, get out of the car.”
Appellant eventually started walking toward the area of the commotion.
He testified that as he approached, at least three people, including victim Smith and
a “heavier set” male, had guns out, which prompted him to pull his gun out.
However, there was some evidence tending to indicate that no one else had their
guns out until they saw appellant with his gun out.
People in the Finley “camp” and the Collins “camp” were arguing back
and forth. Appellant testified that he initially summed the situation up as “females
arguing” and he did not believe it would escalate any further than an argument. He
believed the “heavy set” man with a gun out was part of Collins’ security detail.
According to victim Collins, on the day of the concert, codefendant
Finley made a comment on social media “Piggy gone [sic] be in somebody grave
yard.” The message was admitted into evidence — the initiating message “thread”
started at 12:24 a.m. Appellant denied knowing anything about the comment; he
testified that he did not follow his girlfriend Finley on social media. The argument soon escalated to a physical confrontation, with
codefendant Finley running over to victim Collins and striking her. Appellant
testified that at the very moment Finley ran toward Collins, he had his back turned
and did not see Finley running; had he seen her he “probably would have grabbed
her.” But his back was turned because he was telling the others to put their guns
away. Appellant testified that at that point he figured “it’s going to be a fight” and
[SEGMENT 14]
he should just “let them get it off [their] chest” because the fight had already started
and he could not stop it.
According to appellant, victim Smith, who was in the Collins camp,
had a gun pointed at codefendant Finley and grabbed Finley’s wig. It was at that
point that appellant’s “antennas went up” and he fired four shots at Smith.
Appellant testified that he shot Smith in defense of his girlfriend, Finley. The video
evidence shows that appellant shot in the direction of the club, where Townsend and
Majid were standing. After being shot, Smith ran away, appellant thought the threat
had abated, and so he started walking away. Appellant testified that his girlfriend
Finley and Collins continued fighting even after he had shot Smith.
Although appellant believed Smith was gone, Smith reappeared and
pointed her gun at him. Appellant, thinking Smith was going to shoot him in
retaliation, shot her again. An eyewitness, who was a friend of Collins, testified that
she never saw Smith point her gun at appellant at any time during the incident. After
appellant shot Smith the second time, Smith got in Collins’ vehicle and appellant
walked across the street. The provided text does not contain any identifiable court ruling citations that need to be replaced. Therefore, no changes are required. The text will remain as follows:
Meanwhile, Finley and Collins and their friends were still engaged in
a fight. Appellant testified that he “wasn’t even paying attention to the fight.”
Appellant believed the shooting part of the incident was over so, as he testified,
“what am I going back over there for?”
The fight eventually ended and those involved dispersed; appellant
saw Finley get in the white SUV she had arrived in. Appellant then saw Collins with
a gun chase after the vehicle Finley was in; Collins fired at the vehicle. Appellant
fired at Collins in an attempt to get her to go back to “her area.” Collins dropped her
gun and everyone, including Collins, ran their own separate ways. Appellant
testified that he heard a series of shots “coming from everywhere” toward him. He
had to “duck and take cover”; he had to “creep” away from the scene. The video
evidence demonstrates that the shots being fired at that time were away from the
door, where victims Townsend and Majid were. Appellant was not injured in the
incident and, although he testified that his girlfriend, Finley, had a “gash on her
head,” she did not seek medical treatment.
Appellant testified that he thought about calling the police, but he did
not because his “adrenalin was rushing” and after he left the scene he really did not
see the point. Instead, he called his lawyer, who told him “not to worry about it,” the
police would contact him. Appellant acknowledged that he learned in his CCW
training that he should inform law enforcement after an incident such as what
occurred here. Victim Smith testified that she arrived at Medusa in the black SUV
with Collins and her entourage. A security person from Medusa told the Collins
group that codefendant Finley was there too and Finley had her “shoes off.”
According to Smith, “shoes off” indicated that Finley was ready to fight. Smith got
out of the vehicle and took her firearm out, in the hope of fending off any
confrontation.
Smith testified that when the physical confrontation ensued, she used
her gun to hit Finley on the top of her head because she was trying to protect Collins,
her friend. Smith then heard gunfire and was unaware that she had been shot. She
attempted to get back into the vehicle to escape the melee and, at that point, she saw
appellant with a gun. According to Smith, appellant told her that he was shooting
at her and that he would continue to do so. Smith testified that she was able to get
back in the vehicle, and appellant continued shooting. Smith denied firing her
weapon at all during the incident. She testified that she was shot in appellant’s first
round of firing, and after that she did not even have her gun anymore — she had
dropped it and never picked it up. She testified, “I was hopping, trying to get back
to the car trying to — constantly getting shot at again.”
Smith was treated for multiple gunshot wounds, including wounds to
her thigh, back, arm and buttocks. Some of the bullet fragments remained in Smith’s
body. Her femur bone was shattered, which necessitated her having to have a rod
placed in her leg; she had to learn how to walk again. Smith identified appellant to
the police as the person who shot her. She did not tell the police that she too had a gun that evening. Smith testified that she did not think it was important because
she never fired her gun.
Victim Collins testified that, upon arriving at Medusa, she initially
remained in the vehicle, but Smith got attacked, so she got out and that was when
she was attacked by Finley and her entourage. Collins testified that Finley told her,
“b****, you about to die.” Collins retrieved a “stun/taser” gun she had and began to
use it on the group. Collins testified that it was at that time that appellant started
shooting. Collins never told the police about the gun she had that evening because
they “never asked.” The portion of the video where Collins had the gun was played
during her testimony. The video appeared to show “flashes” or “clouds of smoke”
coming from the gun; however, Collins maintained that it was a stun/taser gun and
not a “real” gun. Collins admitted that a stun gun does not emit smoke. The video
evidence showed that Collins was not shot until she was in the middle of the street
running toward the vehicle Finley was in; she was not shot when she initially got out
of the vehicle and was involved in the physical altercation.
Collins sustained numerous gunshot wounds, including wounds to
her stomach, back, and arm. She was hospitalized for approximately 25 days, some
of which she was in a comatose state. As of the time of trial, she had had three
surgeries on her arm and anticipated having at least one more.
Victim Majid, a Medusa employee who happened to be outside at the
time of the incident and was caught in the “crosshairs,” testified that she was grazed
by a bullet, but was not sure exactly when or who fired at her. As mentioned, victim Townsend did not testify. However, a nurse who treated him at the main campus of
University Hospital, of Cleveland testified regarding him. The nurse identified
Townsend on a video from a police officer’s body camera. According to the nurse,
Townsend arrived at the hospital via “private vehicle.” He was treated for a gunshot
wound to his foot. The nurse testified that she was not sure where the shooting
occurred. In a portion of one of the videos played during trial, a man can be seen
limping away from the scene and getting into a vehicle that was then driven away.
Law enforcement discovered bullet holes in neighboring businesses
and collected numerous shell casings from the scene. It was determined that the
ammunition came from six different manufacturers.
At the close of both the state and appellant’s cases, appellant made a
Crim.R. 29 motion for judgment of acquittal, which was denied both times.
Appellant requested and was granted a self-defense jury instruction relative to the
crimes with Smith and Collins as the victims (Counts 1-6). The trial court also
instructed the jury on the doctrine of transferred intent as to the counts relative to
Townsend and Majid (Counts 7, 8, 9, and 10). The jury returned guilty verdicts on
the counts and specifications relative to victims Smith (Counts 1-3), Townsend
(Counts 7 and 8), and Majid (Counts 9 and 10). The jury returned not guilty verdicts
on the counts and specifications relative to Collins (Counts 4-6).
The trial court merged counts for the purpose of sentencing and the
state elected to proceed to sentencing on Count 1, attempted murder of Smith, Count
7, felonious assault of Townsend, and Count 9, felonious assault of Majid. The court sentenced appellant to five to seven-and-a-half years on Count 1; five years on Count
7; and five years on Count 9. The sentences on those counts were ordered to be
served concurrently. The trial court further sentenced appellant to the three-year
firearm specifications attendant to the underlying counts and ordered them to be
served consecutively for a nine-year term. The nine-year term on the firearm
specifications was ordered to be served consecutively to the five to seven-and-a-half
years on the sentence for the underlying charges, for an aggregate sentence of 14 to
16.5 years. Appellant now raises the following five assignments of error for our
review:
I. Appellant’s convictions are against the manifest weight of the
evidence because [the] record establishes appellant acted in self-
defense and the convictions are otherwise against the manifest
weight of the evidence.
II. The Court committed plain error by failing to provide a jury
instruction on transferred intent self-defense and appellant’s
Sixth Amendment rights were violated where defense counsel
did not object.
III. The trial court erred when it denied appellant’s motion for
acquittal under Crim.R. 29 because the state failed to present
sufficient evidence to establish beyond a reasonable doubt the
elements necessary to support the convictions.
[SEGMENT 15]
IV. The trial court committed a reversible error by allowing West to
provide testimony identifying Townsend on unauthenticated
body cam[era] footage, Exhibit 19[,] over defense objection and
in violation of appellant’s constitutional rights to due process
and a fair trial.
V. The trial court erred in imposing three consecutive terms for
firearm specifications when the felonies were committed as part
of the same act or transaction. Law and Analysis
For his first assigned error, appellant challenges his convictions as
being against the manifest weight of the evidence. First, he contends that the
evidence established that he acted in self-defense and, second, he contends that the
convictions are generally against the weight of the evidence.
When evaluating a claim that a jury verdict is against the manifest
weight of the evidence, “we review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that we must reverse the conviction and order
a new trial.” [CITATION], ¶ 168, citing [CITATION]. Reversing a conviction based upon the weight of the evidence should occur “‘only in
the exceptional case in which the evidence weighs heavily against the conviction.’”
[CITATION], quoting [CITATION].
The trial court provided the jury with a self-defense instruction on the
counts relative to victims Smith and Collins, which meant that the court determined
that appellant presented sufficient evidence that his act of shooting was done in
defense of himself and Finley. [CITATION], ¶ 26. Now, on appeal, in this assignment of error, appellant’s
challenge relative to self-defense, and the convictions in general, is whether the state met its burden of persuasion; that is, under a manifest-weight-of-the-evidence
review, whether the state met its burden of persuading the jury beyond a reasonable
doubt that appellant was not acting in defense of himself or Finley when he fired his
gun. [CITATION]
The elements of self-defense in a deadly force case are that the
defendant: (1) was not at fault in creating the situation giving rise to the affray, (2)
had a bona fide belief that he or she was in imminent danger of death or great bodily
harm and his or her only means of escape from such danger was in the use of such
force, and (3) did not violate any duty to retreat or avoid the danger. [CITATION]
Under Ohio’s “stand your ground” law, R.C. 2901.09(B), “a person has
no duty to retreat before using force in self-defense, defense of another, or defense
of that person’s residence if that person is in a place in which the person lawfully has
a right to be.” The trial court here instructed the jury that appellant had no duty to
retreat.
“‘A self-defense claim is generally an issue of credibility.’” [CITATION], quoting [CITATION] “‘Disputes in
credibility for the purposes of evaluating self-defense are best resolved by the trier
of fact.’” [CITATION] at id., quoting [CITATION] “‘It has been held that “a conviction is not against the manifest
weight of the evidence because the trier of fact believed the state’s version of events over the defendant’s version” and rejected the defendant’s claim of self-defense.’”
Lawrence at id., quoting Bentley at id., quoting [CITATION] “When weighing witness testimony
supporting a claim of self-defense, the trier of fact is ‘free to believe or disbelieve the
testimony of the witnesses’ and ‘is in the best position to take into account
inconsistencies, along with the witnesses’ manner and demeanor, and determine
whether the witnesses’ testimony is credible.’” Lawrence at id., quoting Bentley at
id., citing [CITATION]
Appellant’s claim of self-defense was relative to victims Smith and
Collins. The jury found appellant not guilty of the charges related to Collins, but
guilty on the charges related to Smith. The result was not incredible.
Appellant contends that Smith was the aggressor in the incident. By
all accounts, and the video evidence, the scene was chaotic. But codefendant Finley
was the one that escalated the incident by running up to Collins’ vehicle and striking
her. And while the evidence does support that Smith used her gun to hit Finley on
the head, it does not support that Smith was the first (if she ever did at all) to fire a
gun. On this record, we are not persuaded by appellant’s contention that Smith was
the aggressor.
In terms of appellant’s contention that he feared for Finley’s life and
there was no time to wait, the jury did not believe him. That was not incredible,
especially given that he was not initially concerned, as he just looked on while the
“females” got it “off their chests.” Further, according to Smith, appellant told her that he was shooting at her and that he would continue to do so. Smith testified that
she was shot in appellant’s first round of firing, and after that she did not even have
her gun anymore — she had dropped it and never picked it up, but that even as she
“was hopping, trying to get back to the car * * * [she was] constantly getting shot at
again.” Moreover, after he fired the first round at Smith, Finley, his girlfriend, was
still entangled in a physical confrontation, but according to appellant he “wasn’t
even paying attention to the fight” and he did not feel the need to protect her then
because he believed the shooting part of the incident was over. The jury could have
considered this evidence as not tending to support appellant’s claim that he was
acting in self-defense.
On this record, the jury’s decision to disbelieve appellant’s claim of
self-defense relative to Smith was not against the manifest weight of the evidence.
We also find that the felonious assault convictions relative to victims
Townsend and Majid were not against the manifest weight of the evidence. Relative
to victim Townsend, appellant contends that the state failed to prove venue; that
issue goes to the sufficiency of the evidence and will be addressed under his
sufficiency assignment of error.
Regarding the convictions relative to Townsend and Majid generally,
appellant contends that because the jury believed his self-defense claim relative to
Collins, “he would not be guilty of any of those bullets [that] accidentally hit
Townsend or Majid based on the transferred intent that would apply to self-
defense.” The doctrine of transferred intent provides that where an individual
is attempting to harm one person and as a result accidentally harms another, the
intent to harm the first person is transferred to the second person and the individual
attempting harm is held criminally liable as if he both intended to harm and did
harm the same person. [CITATION] This court has not definitely held that the doctrine of transferred
intent applies to self-defense claims. See [CITATION] (“it is not clear that the doctrine of transferred intent
applies to self-defense.”). This is not the case to decide whether it applies.
We note the doctrine ensures that a person cannot escape the legal
and moral responsibility of his or her acts simply because the intended victim
escapes harm while an innocent person is injured. [CITATION] Here, although the jury acquitted appellant on the
charges relative to Collins, it found him guilty on the charges relative to Smith. That
is, it did not believe that appellant was acting in self-defense against Smith. It would
negate the purpose of the doctrine to find that, although appellant was found guilty
as to one victim on which his self-defense claim was based, i.e., Smith, he cannot be
found guilty of injury to Townsend and Majid because he was acquitted as to the
other victim on which is self-defense claim was based, i.e., Collins. The evidence
shows that in appellant’s first round of firings, when he hit Smith, his shots were
aimed toward the door of Medusa where Townsend and Majid were standing.
Townsend and Majid were innocent bystanders and, under the theory of transferred intent, appellant cannot escape the harm he accidentally or unintentionally caused
them.
On this record, the first assignment of error is overruled.
For his second assignment of error, appellant challenges the lack of a
jury instruction on the concept of transferred intent of self-defense. According to
appellant, the trial court committed plain error by not giving the instruction and his
trial counsel was ineffective for failing to object.
“On appeal, a party may not assign as error the giving or the failure to
give any instructions unless the party objects before the jury retires to consider its
verdict, stating specifically the matter objected to and the grounds of the objection.”
Crim.R. 30(A). “A party’s failure to object to jury instructions before the jury retires
constitutes a waiver of any claim of error regarding the instructions, absent plain
error.” [CITATION]
Appellate courts apply the doctrine of plain error cautiously and only
under exceptional circumstances to prevent a manifest miscarriage of justice. Id.
“[T]he test for plain error is stringent.” [CITATION] “[T]o prevail under this standard, the defendant must establish
that an error occurred, it was obvious, and it affected his or her substantial rights.”
[CITATION] An
error affects substantial rights only if it changes the outcome of the trial. Id. The
[SEGMENT 16]
defendant carries the burden to establish the existence of plain error. [CITATION] “A criminal defendant has the right to expect that the trial court will
give complete jury instructions on all issues raised by the evidence.” [CITATION]. “[A] trial court
should give a proposed jury instruction if it is a correct statement of the law and is
applicable to the facts of the particular case.” [CITATION], citing [CITATION].
In order to establish a claim of ineffective assistance of counsel,
appellant must demonstrate that counsel’s performance was deficient, and that the
deficient performance prejudiced the defense. [CITATION].
As discussed, it is not definitively established in this district that the
doctrine of transferred intent applies to self-defense. See [CITATION]. But even if the trial court had provided an
instruction on how self-defense applies to the doctrine of transferred intent,
appellant is unable to show that the result of the trial would have been different. The
evidence demonstrated that Townsend and Majid were shot in appellant’s first
round of firings when he shot at Smith. The jury did not find that appellant acted in
self-defense against Smith; as such, it would not have transferred appellant’s alleged
justification for the shooting of Smith to Townsend and Majid. Thus, there was no
plain or reversible error in the trial court’s failure to instruct the jury on how
transferred intent applies to self-defense. See [CITATION]
The second assignment of error is overruled.
In his third assignment of error, appellant challenges his convictions
based on sufficiency of the evidence.
“An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” [CITATION], paragraph two of the syllabus. “The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” Id.
Appellant contends that the state failed to present evidence “to
establish the requisite mental states that [he] acted knowingly or had any purpose
to kill or cause any harm to Smith,” which were necessary for the counts relative to
the counts on which he was convicted.
Smith testified that she was initially unaware that she had been shot.
She attempted to get back into the black SUV to escape the melee and, at that point,
she saw appellant with a gun. Appellant told her that he was shooting at her and
that he would continue to do so. Smith testified that she was able to get back in the
vehicle, and appellant continued shooting. Smith denied firing her weapon at all during the incident. She testified that she was shot in appellant’s first round of
firing, and after that she did not even have her gun anymore — she had dropped it
and never picked it up. She testified, “I was hopping, trying to get back to the car
trying to — constantly getting shot at again.” That evidence was sufficient evidence
to sustain the convictions relative to Smith.
Regarding the convictions for the injuries sustained by Townsend and
Majid, the jury was instructed on the theory of transferred intent. The state
presented sufficient evidence based on that theory. The evidence was sufficient to
demonstrate that appellant intended to or was attempting to cause serious physical
harm to Smith. Townsend and Majid were innocent bystanders who were standing
in the line of appellant’s first firings and were accidentally or unintentionally injured
in the crosshairs.
Further, in regard to Townsend, the state presented sufficient
evidence as to venue. “In any trial, in any court, the party accused shall be allowed
* * * a speedy trial by an impartial jury of the county in which the offense is alleged
to have been committed * * *.” [CITATION] Pursuant to
[CITATION]: “The trial of a criminal case in this state shall be held in a court
* * * in the territory of which the offense or any element of the offense was
committed.”
“In the prosecution of a criminal case, it is not essential that the venue
of the crime be proven in express terms, provided it be established by all the facts
and circumstances in the case, beyond a reasonable doubt, that the crime was committed in the county and state as alleged in the indictment.” [CITATION], syllabus; see also [CITATION], ¶ 22 (8th Dist.), citing [CITATION], ¶ 19; and [CITATION].
Ohio courts, including this court, have found sufficient evidence of venue in
cases where the county and state were not specifically named. See, e.g., [CITATION]; and [CITATION].
Thus, venue may be established by circumstantial evidence. See [CITATION], ¶ 65, citing [CITATION], ¶ 10, 13 (although no
witness testified that the offenses at issue occurred in Franklin County, state
presented sufficient circumstantial evidence as to the location of the crime to
establish venue).
Here, victim Townsend did not testify. A law enforcement official who
arrived on the scene after the incident learned that Townsend had been injured and
was at the hospital. A University Hospitals emergency department nurse who
treated Townsend at the hospital’s main campus testified. The nurse stated that she did not know where Townsend had been when he was shot. Townsend’s medical
records from that treatment, which were admitted into evidence, also did not
indicate where the shooting took place. However, the medical records noted that
Townsend was a bystander as a fight between two women broke out and that he
heard gunshots. Video from the incident demonstrates that the shooting occurred
between 1:05 a.m. and 1:07 a.m. Video evidence also shows a man limping from the
scene, getting into a vehicle, and being driven away. Townsend’s medical records
show that he arrived at the hospital at 1:20 a.m. via “private vehicle” and that he
suffered a gunshot wound to the foot. The jury was able to compare the man limping
at the scene and being driven away in a car to the man who appeared on the officer’s
body camera at the hospital and make reasonable inferences.
On this record, circumstantial evidence provided sufficient evidence
for the jury to conclude that Townsend was shot at Medusa, located in Cleveland,
Cuyahoga County.
In light of the above, appellant’s third assignment of error is
overruled.
Appellant’s fourth assignment of error relates to Townsend and,
specifically, raises a confrontation issue given that he did not testify and the
emergency department nurse testified as to statements he made. Appellant also
challenges the nurse’s identification of Townsend from a police officer’s body
camera video, which he contends was not authenticated. The Confrontation Clause of the Sixth Amendment to the United
States Constitution preserves the right of a criminal defendant “to be confronted
with the witnesses against him [or her].” [CITATION] The Confrontation Clause bars the admission of
“testimonial hearsay” unless the declarant is unavailable and the accused had a prior
opportunity to cross-examine the declarant. Id., citing [CITATION]. Where there is no hearsay,
the testimony does not violate the Confrontation Clause. [CITATION]
Evid.R. 803(4) allows, as an exception to the hearsay rule, the
admission of statements made in order to further medical treatment or diagnosis.
Statements that are admissible under Evid.R. 803(4) are understood to be reliable
because the effectiveness of treatment frequently depends upon the accuracy of the
information related to medical professionals, and such statements are “reasonably
relied on by [medical professionals] in treatment or diagnosis.” [CITATION] Further, medical records are admissible
under the exception to the hearsay rule for records of regularly conducted activity
set forth in Evid.R. 803(6). [CITATION] And in this case, appellant stipulated to the admission
of the medical records.
Upon review, the statements made and injuries documented by the
nurse did not have the primary purpose of being testimonial. Rather, they were made for the purpose of medical diagnosis and treatment. Moreover, appellant
stipulated to the admission of the medical records. On this record, there was no
violation of appellant’s confrontation rights regarding the nurse’s testimony and the
admission of the medical records.
There also was no confrontation issue regarding the nurse’s testimony
identifying Townsend on the police body camera video. No audio was played with
the short video clip; therefore, the video did not implicate any statements made by
Townsend.
Appellant also contends that there was a lack of authentication of the
video. Evid.R. 901 provides for the authentication or identification of evidence prior
to its admissibility. It provides in relevant part that, “the authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” Evid.R. 901(A). “The authentication requirement of Evid.R. 901(A) is a low
threshold that does not require conclusive proof of authenticity, but only sufficient
foundation evidence for the trier of fact to conclude that the evidence is what its
proponent claims it to be.” [CITATION]
The nurse testified that she recognized the place where Townsend was
in the video (University Hospitals’ emergency department), she recognized the
clothing Townsend was wearing at the time he came in, and the video was a fair and accurate representation of Townsend on the morning of the shooting. That
[SEGMENT 17]
testimony was sufficient for authentication.
Moreover, the nurse was the sixth of the state’s 11 witnesses and
testified before victims Smith and Collins. Throughout the entire trial, but especially
during Smith and Collins’ testimonies, video from the scene at Medusa was
repeatedly played. The video evidence depicted a chaotic scene, with numerous
people involved. The nurse’s testimony that she recognized Townsend on the police
body camera video and the clothing he was wearing at the time helped to provide
insight for the jury as to who and where Townsend was at the crime scene.
On this record, there were no confrontation or authentication
violations. The fourth assignment of error is overruled.
For his final assignment of error, appellant contends that the trial
court erred by imposing three consecutive terms for the firearm specifications
because the underlying felonies were committed as part of same act or transaction.
Ordinarily, the trial court is prohibited from imposing more than one
prison term on multiple firearm specifications for felonies committed as part of the
same act or transaction. R.C. 2929.14(B)(1)(b). However, there is an exception to
this general rule. Specifically, the statute provides that:
If an offender is convicted of or pleads guilty to two or more felonies, if
one or more of those felonies are aggravated murder, murder,
attempted aggravated murder, attempted murder, aggravated robbery,
felonious assault, or rape, and if the offender is convicted of or pleads
guilty to a specification of the type described under division (B)(1)(a) of
this section in connection with two or more of the felonies, the
sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted or to which the
offender pleads guilty and, in its discretion, also may impose on the
offender the prison term specified under that division for any or all of
the remaining specifications.
(Emphasis added.) R.C. 2929.14(B)(1)(g).
This court has stated that although the General Assembly did not
include the word “consecutive” in R.C. 2929.14(B)(1)(g), it did, in fact, create an
exception to the general rule that a trial court may not impose multiple sentences on
firearm specifications for crimes committed as part of the same transaction. [CITATION], ¶ 10, citing [CITATION], ¶ 71. The trial court
here imposed consecutive terms on the firearm specifications associated with the
two most serious offenses as it was required to do, and in its discretion, ordered the
third firearm specification to be served consecutive as well. The trial court made
consecutive sentence findings on the record at the sentencing hearing and
incorporated those findings into its sentencing judgment entry.
The fifth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MICHAEL JOHN RYAN, JUDGE
MICHELLE J. SHEEHAN, P.J., and
SEAN C. GALLAGHER, J., CONCUR
[CITATION]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 21AP-330
v. : (C.P.C. No. 21CR-173)
Ashshaheed A. Jamii, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 21, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and
Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for appellant. Argued: George M. Schumann.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Ashshaheed A. Jamii, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas following
a jury trial in which he was found guilty of one count of aggravated robbery, one count of
felony aggravated murder, two counts of murder, and two counts of felony murder. For the
following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On January 13, 2021, appellant was indicted on one count of aggravated
robbery in violation of R.C. 2911.01 (Count 1), one count of felony aggravated murder in
violation of R.C. 2903.01 (Count 2), one count of murder in violation of R.C. 2903.02(A)
(Count 3), and one count of felony murder in violation of R.C. 2903.02(B) (Count 4) arising No. 21AP-330
from the January 6, 2021 robbery and death of Malik S. Amar. In the same indictment,
appellant was charged with one count of murder in violation of R.C. 2903.02(A) (Count 5),
and one count of felony murder in violation R.C. 2903.02(B) (Count 6) arising from the
January 6, 2021 death of David W. Knox. All counts, except the aggravated robbery count,
included three-year firearm specifications under R.C. 2941.145.
{¶ 3} The matter came for trial before a jury in May 2021. Plaintiff-appellee, State
of Ohio, presented the following evidence.
{¶ 4} Fourteen-year-old J.W. testified that on the evening of January 5, 2021, Amar
drove her to visit her friend, Z.C., who was living with appellant. Appellant was the only
person in the apartment when J.W. and Amar arrived. J.W. initially sat in a back bedroom
talking to a friend on her cell phone while she waited for Z.C. to arrive. Amar eventually
asked J.W. to join him and appellant in the living room. During a conversation between
appellant, Amar and J.W., appellant touched J.W.’s upper thigh, “[c]lose to [her] personal
area.” (May 18, 2021 Tr. Vol. I at 43.) Amar grabbed J.W.’s face and told her it was
inappropriate for a grown man to touch her in that way. Appellant accused Amar of calling
him a rapist; Amar denied that was his intent. Thereafter, appellant and Amar left the
apartment for 20-30 minutes. While they were gone, J.W. sent her friend a text message
at 10:26 p.m. that said, “[Z.C.’s] stepdad [appellant] grabbed my leg.” (Tr. Vol. I at 46.)
When Amar and appellant returned, Amar told J.W. he had discussed the touching incident
with appellant and that everything was now fine.
{¶ 5} A short time later, Amar told J.W. he and appellant were leaving the
apartment and that she should accompany them. J.W. initially protested, but after Amar
raised his voice, she agreed to go. The three left in Amar’s car. Amar first drove to an ATM
and then to the apartment of his girlfriend, Shavonne Baker. While appellant, Amar, and
Baker conversed, J.W. excused herself and went into the bathroom. She called her best
friend, told her she did not feel safe because she thought something was about to happen,
and directed her to call police if she did not receive a text message or call from her in the
next 15 minutes. Shortly after J.W. returned from the bathroom, appellant, unprovoked,
took out a gun and pulled back the slide. Baker became upset and ordered everyone to
leave. No. 21AP-330
{¶ 6} Appellant, Amar, and J.W. left Baker’s apartment and returned to Amar’s car.
Amar told appellant he needed to “chill out.” (Tr. Vol. I at 53.) Appellant responded that
he was “messed up in the head right now” and had “a lot going on.” (Tr. Vol. I at 54.) J.W.
then asked Amar when they would be going back to appellant’s apartment; Amar stated he
had to make a couple stops before returning. Amar then drove to an apartment complex
on 5th Avenue; he went inside one of the apartments while J.W. and appellant remained in
the car. Appellant told J.W. he previously lived in the area, knew it was dangerous, and
would call a Lyft to take J.W. home. Appellant also stated, “I know what’s up. I’m not
dumb,” and “[t]hey think I’m stupid.” (Tr. Vol. I at 55.)
{¶ 7} Amar returned to the car 10-15 minutes later accompanied by a man (later
identified as Knox) whom J.W. did not know. Amar told appellant Knox was unable to
drive and asked appellant if he could drive Amar’s car back to appellant’s apartment. After
appellant agreed to do so, Amar stated he and Knox would follow in Knox’s car. J.W. moved
from the back seat to the front passenger seat. Appellant began driving erratically, swerving
in and out of traffic, which scared J.W. J.W. noticed appellant’s gun sitting on the car’s
console. Appellant called someone on his cell phone and asked that person to forgive him.
Appellant passed the phone to J.W.; an unidentified woman asked J.W. what was going on
and why appellant was talking about forgiveness. J.W. told the woman she was Z.C.’s friend
and that she did not know what was happening.
{¶ 8} Soon thereafter, appellant parked Amar’s car; Amar pulled Knox’s car nearby.
J.W. noticed appellant’s gun was missing from the console area. Appellant opened his car
door carrying the gun; Amar exited Knox’s car with his hands up. Appellant pointed the
gun at Amar, stated “Pow, N word,” and shot him. (Tr. Vol. I at 62.) J.W. exited the car
and ran away; she then heard another gunshot. She initially hid behind an abandoned car.
Concluding that her hiding place was not safe because appellant was armed and she was
not, she continued running and eventually hid in some bushes. She observed appellant
“looking around” while driving in circles around the area; he eventually drove away. J.W.
then flagged down a car, reported to the driver that her friend’s stepfather had just killed
two people, and asked the driver to take her home. Upon arriving at home, she told her
father what happened, and he called police. She identified appellant as the shooter from a
photograph provided by police.
[SEGMENT 18]
====== End of Court Ruling ====== No. 21AP-330
{¶ 9} On cross-examination, J.W. averred that she observed Amar drinking alcohol
at appellant’s apartment, but never saw him use cocaine. She further testified she initially
“didn’t think anything of it” when appellant touched her thigh; however, after Amar scolded
appellant for doing so, tensions rose between the two men. J.W. further asserted that Amar
“[got] loud” when she said she did not want to leave appellant’s apartment. (Tr. Vol. I at
82.) She further averred that Amar and appellant met with a man (Knox) at the ATM that
J.W. did not know. She also stated that she, Baker, Amar, and appellant were the only
persons present in Baker’s apartment; Knox was not there. According to J.W., Knox was
quite intoxicated when he left the 5th Avenue apartment, which presumably was the reason
Knox could not drive his car. After driving very fast and erratically, appellant pulled into a
random driveway on Fairwood Avenue and turned off the car. Amar pulled Knox’s car close
to where appellant had parked. Appellant exited the driver’s door with his gun drawn.
Amar walked toward appellant with his hands up. J.W. did not hear appellant warn Amar
not to come near him.
{¶ 10} On redirect examination, J.W. testified that Amar did not have a gun in his
hand when he exited Knox’s vehicle. She also averred that appellant’s erratic driving after
leaving the 5th Avenue apartment complex was not because they were being chased. She
reiterated that appellant was the only person with a gun at Baker’s apartment. On recross-
examination, J.W. testified that Amar gave appellant the keys to his car before entering the
5th Avenue apartment.
{¶ 11} Baker testified that at the time of the events at issue, Amar was her boyfriend;
she knew appellant but did not know J.W. On January 5, 2021, she and Amar had dinner
at her apartment. Amar later received a phone call and left to meet someone. At the time,
Baker did not know who Amar was going to meet; however, she later learned that Amar was
meeting Knox to provide cocaine to him. Amar returned later that evening with appellant
and J.W.; Knox was not with them. Amar told Baker about appellant touching J.W.’s upper
thigh and asked Baker if J.W. could stay with her while he took appellant elsewhere. Baker
refused and told them all to leave. Before leaving, J.W. went into the bathroom; appellant
sat on the couch. According to Baker, appellant’s “attitude and demeanor [were] totally off”
and “[h]is eyes were bloodshot red.” (Tr. Vol. I at 125.) Baker again directed the three
visitors to leave; appellant produced a gun and pulled the slide back, which caused a bullet No. 21AP-330
to eject from the chamber onto the floor. Amar told appellant to put the gun away and left
with appellant and J.W. Amar returned to the apartment briefly, but left after he and Baker
argued about appellant’s actions. Amar again left with appellant and J.W. in Amar’s car.
Baker later learned that appellant had shot and killed Amar. Subsequently, Baker was
interviewed by the police; she told them what had happened at her apartment, provided
them with the bullet that had been ejected from appellant’s gun, and identified appellant
from a photograph provided by police. Baker testified that although Amar sometimes told
people he carried a gun, he did not own a gun, did not have a gun that evening, and did not
threaten appellant.
{¶ 12} On cross-examination, Baker admitted she called 911 because Amar was
unruly, belligerent, and drunk. She also testified that while she did not personally know
Knox, she was aware that Amar sometimes picked up cocaine and provided it to Knox for
his personal use.
{¶ 13} Columbus Division of Police (“CPD”) Officer Jeffrey Lazar testified that he
arrived at the crime scene at approximately 1:30 a.m. on January 6, 2021. Officer Lazar
observed a running vehicle with the gearshift in drive located near a curb in front of a
residence on Fairwood Avenue. The front passenger door was open; a man with a fatal
gunshot wound to the head lay on the driveway near the vehicle. A second man with a fatal
gunshot wound to the head was seated in the driver’s seat; the man had a liquor bottle
between his legs and a baggie of cocaine in his left hand. Officer Lazar’s body-worn camera
captured the crime scene; the video was played for the jury.
{¶ 14} Detective Mark Burghart of the Crime Scene Search Unit (“CSSU”) testified
he and other CSSU personnel took photographs and collected evidence from the crime
scene. Detective Burghart identified CSSU photographs depicting the vehicle, the bodies of
Amar and Knox, two spent shell casings, a black knit cap, appellant’s cell phone, a bottle
of vodka, a baggie of cocaine, and a bloody paper. Detective Burghart also identified
evidence collected from the scene, including the items depicted in the photographs.
State’s exhibits A24-28 depict Knox’s body as it was when CSSU arrived at the scene—slumped over in the
driver’s seat of the vehicle. State’s exhibits A43-47 show Knox’s body after he was removed from the vehicle
and positioned on the street by the coroner. No. 21AP-330
{¶ 15} SWAT Officer Mark Dilello testified he was dispatched to an address on East
Long Street to search for a vehicle reportedly stolen following a homicide. Officer Dilello
located the vehicle, which was unoccupied, in the parking lot of an apartment complex at
the Long Street address. Officer Dilello’s body-worn camera captured the scene; the video
was played for the jury. Following an inventory search, the vehicle was impounded.
{¶ 16} CSSU Detective Nicole Prysock testified that pursuant to a search warrant,
she photographed and collected evidence from the vehicles recovered from Fairwood
Avenue and East Long Street. Detective Prysock took DNA swabs and recovered a live
round of ammunition from the vehicle recovered from East Long Street.
{¶ 17} The parties stipulated that the Montgomery County coroner would testify
Amar died from a gunshot wound to the head and that a Franklin County deputy coroner
would testify that Knox also died from a gunshot wound to the head. The parties further
stipulated that a forensic scientist from the CPD Crime Lab would testify appellant was a
contributor to a DNA mixture recovered from the gear shift of the vehicle found on East
Long Street.
{¶ 18} Detective Lowell Titus, the lead investigator in the case, testified that CSSU
personnel recovered no weapons during the search of the crime scene or the subsequent
processing of the vehicles pursuant to impoundment. Testing of the two shell casings
recovered from the scene revealed both were fired from the same gun. Detective Titus
further testified that during his interview with J.W., she provided details about the events
preceding and including the shooting of Amar and Knox, including identification of
appellant as the shooter. Detective Titus acknowledged that during J.W.’s initial interview
with a patrol officer she was less than forthright about the details of the events preceding
the shooting because that interview was conducted in the presence of her father and she did
not want him to know about her relationship with Z.C. Detective Titus also interviewed
Baker, who confirmed that appellant, Amar, and J.W. were at her apartment prior to the
shooting; Baker also provided the bullet she found in her apartment and identified a
photograph of appellant as the person who ejected the bullet from his gun.
{¶ 19} Detective Titus further testified that once appellant was established as a
suspect in the murders, he filed a warrant for his arrest. Further investigation revealed that
the vehicle found on East Long Street was registered to Amar and that appellant’s driver’s No. 21AP-330
license listed his address on East Long Street. Detective Titus further testified that
following appellant’s arrest, he obtained oral DNA swabs from appellant.
{¶ 20} On cross-examination, Detective Titus averred that CPD issued the warrant
for appellant’s arrest on January 7, 2021; appellant voluntarily surrendered to the Franklin
County Jail on January 8, 2021. He acknowledged there were inconsistencies in J.W.’s
initial police interviews as to the events preceding the shootings and that she did not admit
she provided a false narrative in those interviews until her final police interview in April
2021. Detective Titus further acknowledged CPD’s investigation revealed that both Amar
and Knox had ingested cocaine, no evidence established appellant knew Knox or that he or
J.W. were aware Amar planned to go to Baker’s apartment or to Knox’s 5th Avenue
apartment, and that after leaving Knox’s apartment, Amar provided appellant the keys to
his car and asked him to drive it. Finally, Detective Titus acknowledged that Amar had $400
on his person and Knox had 2.922 grams of cocaine in his hand at the time of their deaths.
{¶ 21} Caleb Worley, a CPD forensic firearms analyst, testified he compared the two
shell casings recovered from the crime scene to each other and the two bullets recovered
from the bodies of Amar and Knox to each other. Based on those comparisons, Worley
concluded the two shell casings had been fired from the same gun and the two bullets had
been fired from the same gun. However, without access to the gun, Worley could not
determine whether the casings and bullets were fired from the same gun.
{¶ 22} Following the state’s presentation of evidence, appellant moved for judgment
of acquittal, pursuant to Crim.R. 29, on the basis that the state failed to sustain its burden
of proof that appellant did not shoot Amar and Knox in self-defense. The trial court denied
appellant’s motion.
{¶ 23} After the state rested its case, appellant presented two witnesses on his behalf
—his mother, Alfrida Turner—and himself. Turner testified she resided on East Long
Street. She received a phone call from appellant just after midnight on January 6, 2021.
During the call, appellant spoke in a calm voice; however, Turner could not understand
what he was saying. Turner also spoke to J.W., who only stated she did not know what was
happening. On cross-examination, Turner indicated that the entire phone call lasted
approximately one minute. No. 21AP-330
[SEGMENT 19]
{¶ 24} Appellant testified that after returning home from work on January 5, 2021,
he drank a couple beers. At the time, Z.C. was living with him because Z.C.’s mother had
kicked him out of her home and he needed somewhere to live. Appellant described his
relationship with Z.C. as “like a stepson,” as appellant shared a child with Z.C.’s mother.
(Tr. Vol. II at 327.) Z.C. told appellant that his cousin, Amar, was bringing Z.C.’s girlfriend,
J.W., to the apartment for a visit. Appellant knew Amar and J.W. through Z.C. and his
mother; he and Amar were “cool” with each other. (Tr. Vol. II at 330.) Appellant directed
Z.C. to go to the store and buy food for his guests.
{¶ 25} Amar and J.W. arrived at appellant’s apartment after Z.C. left for the store.
Amar sat with appellant at the kitchen table; J.W. went into the bedroom. Amar used
cocaine and offered it to appellant; appellant declined. Amar told J.W. to come into the
kitchen and sit at the table. Amar asked appellant to pay him the money Z.C. owed him;
appellant refused to do so. According to appellant, Amar was drunk and belligerent during
this conversation. J.W. was nervous and upset by the interaction between appellant and
Amar; in an effort to console J.W., appellant touched her hand, which was on her knee.
When J.W. pulled her hand away, appellant inadvertently touched her knee.
{¶ 26} Amar accused appellant of touching J.W.’s leg inappropriately. Both J.W.
and appellant denied Amar’s accusation. Amar eventually conceded he was mistaken about
the touching incident. Thereafter, Amar told appellant he had lost his ATM card; he asked
appellant if he could transfer money into appellant’s bank account and then appellant could
withdraw that money from an ATM and give it to Amar. Appellant agreed to this
arrangement. Amar insisted that J.W. accompany them to the ATM. Because he lived in a
high crime area, appellant brought his gun with him for protection.
{¶ 27} Appellant withdrew the money from the ATM and gave it to Amar. At that
point, Knox pulled up next to Amar’s vehicle. Amar exited his vehicle and entered Knox’s
vehicle. Appellant overheard Amar tell Knox about the leg-touching incident with J.W.
Knox leaned forward, glared at appellant, and then leaned back in his seat; Knox’s actions
made appellant uneasy. Amar came back to his car and then drove to Baker’s apartment.
Upon arrival, appellant went into the bathroom. He overheard Amar tell Baker about the
leg-touching incident with J.W., which Amar described to Baker as being sexual in nature.
After appellant exited the bathroom, Amar tried to get appellant to admit that he had No. 21AP-330
touched J.W. inappropriately. Amar walked toward appellant; appellant drew his gun,
pulled back the slide, and told Amar to “chill out.” (Tr. Vol. II at 345.) Appellant drew his
gun because Amar had been drinking, using cocaine, and behaving erratically. According
to appellant, he “didn’t know what [Amar] was capable of doing at that point.” (Tr. Vol. II
at 345.) Amar tried unsuccessfully to take the gun from appellant. Although Amar
indicated he had a gun, he did not produce one. Baker was upset about the confrontation
and ordered appellant, Amar, and J.W. to leave.
{¶ 28} The three left Baker’s apartment in Amar’s car. At that point, appellant
assumed Amar would drive him and J.W. back to appellant’s apartment. Instead, Amar
drove to an apartment complex on 5th Avenue. Upon arrival, Amar parked the car, took
the car keys with him, and went inside one of the apartments. Appellant called for a Lyft to
take him home; he wanted to get out of the area because Amar had been acting strangely
throughout the evening. Appellant particularly noted Amar’s actions in driving to an
unknown location after promising to take appellant home and leaving appellant alone in
the car with J.W. after accusing him of touching her inappropriately.
{¶ 29} A short time later, Amar emerged from the apartment with Knox. At that
point, appellant cancelled the Lyft. Knox walked to his car; Amar walked over to appellant,
gave appellant his car keys, and directed him to drive his car. Appellant initially protested,
but after Amar pushed him toward the car and again ordered him to drive, appellant
acquiesced. Amar told appellant he was not concerned that appellant had a gun because he
had a gun and Knox kept an AR rifle in his car. Appellant believed Amar’s assertions about
the guns. Appellant thought something “fishy [was] going on” because Amar told appellant
that Knox was too drunk to drive; however, Knox entered the driver’s seat of his car while
Amar sat in the passenger seat. Amar informed appellant that he and Knox would follow
him back to appellant’s apartment; after dropping off J.W., the three men would leave
together in Knox’s car.
{¶ 30} Appellant began driving erratically in order to evade Amar and Knox.
Because he believed something bad was going to happen to him, he called his mother, and,
in accordance with the tenets of his religion, asked her forgiveness for past sins he had
committed against her. Appellant then gave J.W. his cell phone and told her to tell his
mother what was happening. Thereafter, believing he had successfully eluded Amar and No. 21AP-330
Knox, appellant pulled the car into a random driveway and shut off the lights and engine.
Immediately thereafter, Knox pulled his car next to the curb close to the driveway. While
the car was still moving, Amar jumped out of the front passenger seat, left the door open,
and ran toward appellant. Appellant exited Amar’s vehicle with his gun drawn and
repeatedly warned Amar not to approach him. When appellant turned away to retrieve his
phone from J.W., Amar ran toward appellant with his right hand by his side and his left
hand extended. When appellant turned around, Amar stated “Nah, fuck that” and
attempted to take appellant’s gun. (Tr. Vol. II at 363.) Recalling Amar’s assertion that both
he and Knox were armed, appellant shot Amar in self-defense.
{¶ 31} After shooting Amar, appellant approached Knox’s vehicle; he realized Knox
could sho0t him through the open passenger door. When he saw Knox appear to reach for
something under the seat, appellant told him to “[f]reeze” and “[s]lowly show me your
hands.” (Tr. Vol. II at 369.) After Knox “raise[d] up real fast,” appellant shot him because
he feared Knox was going to shoot him. (Tr. Vol. II at 369.)
{¶ 32} Appellant denied that Amar exited his vehicle with his hands up. Appellant
tried to escape from Amar and Knox before shooting them; he shot both men because Amar
had repeatedly warned him that they were armed. When he discovered a warrant had been
issued for his arrest, he immediately surrendered to police.
{¶ 33} On cross-examination, appellant admitted he never saw Amar with a gun at
any point during the events at issue. He further acknowledged he was still sitting in the car
with the keys when Amar exited Knox’s vehicle and could have driven away. He also
admitted he left the keys in the car when he exited it to confront Amar and could have driven
away after he shot Amar. Appellant further conceded that after shooting Amar and Knox,
he did not call 911; instead, still armed, he fled the scene in Amar’s car and later threw his
gun in a trash can behind his mother’s house; he threw the gun away because he did not
want to be caught with it. He also admitted he did not surrender to police until he
discovered a warrant had been issued for his arrest. Appellant asserted he was afraid Amar
and Knox were planning to murder him because Amar believed appellant had touched J.W.
inappropriately.
{¶ 34} On redirect examination, appellant averred he did not have sufficient time to
exit the driveway before Amar approached him. He further asserted he did not leave after No. 21AP-330
he shot Amar because Knox was still in his car and appellant had been told by Amar that
both he and Knox were armed. Appellant further testified that he fled the scene after
shooting Amar and Knox because he panicked.
{¶ 35} On recross-examination, appellant reiterated that he never observed Amar or
Knox with a gun. He acknowledged that Knox was facing forward in the car and was not
looking at him when he shot him in the right ear.
{¶ 36} At the close of all the evidence, appellant renewed his Crim.R. 29 motion. The
trial court again denied the motion.
{¶ 37} Following deliberations, the jury returned guilty verdicts on all counts and
firearm specifications.
{¶ 38} In a sentencing entry filed June 17, 2021, the trial court merged Counts 3 and
4 with Count 2 and merged Count 6 with Count 5. The court imposed an indefinite sentence
of 8-12 years on Count 1; a life sentence with parole eligibility after 33 years (including 3
years for the firearm specification) on Count 2; and a life sentence with parole eligibility
after 18 years (including 3 years for the firearm specification) on Count 5. The trial court
ordered the sentences to run consecutively for a total aggregate sentence of life with parole
eligibility after a minimum of 59 years and a maximum of 63 years. Appellant was awarded
161 days of jail-time credit.
{¶ 39} Appellant timely appealed and the matter was fully briefed by the parties. In
his briefing, appellant alleged four assignments of error, the fourth asserting a facial
constitutional challenge to the indeterminate sentencing scheme under R.C. 2967.271, the
Reagan Tokes Act, imposed by the trial court on Count 1. On July 22, 2022, this court sua
sponte stayed the appeal pending the Supreme Court of Ohio’s resolution of [CITATION] and [CITATION]. On July 26, 2023, the Ohio
Supreme Court issued its decision in [CITATION], finding the Reagan Tokes Act
to be constitutional. [CITATION] On August 28,
2023, appellant filed a motion to lift the stay and reactivate the appeal; appellant also filed
a notice of voluntary dismissal of his fourth assignment of error. On August 29, 2023, this
court granted appellant’s motion to lift the stay and reactive the appeal. As appellant has
voluntarily dismissed his fourth assignment of error, this decision will focus on the
remaining three assignments of error set forth below. No. 21AP-330
[SEGMENT 20]
II. Assignments of Error
{¶ 40} Appellant assigns the following three assignments of error for our review:
[I.] The verdicts of guilty as to count one, aggravated robbery,
and count two, felony-aggravated murder, based on
aggravated robbery, and court four, felony-murder, based on
aggravated robbery, are not supported by sufficient evidence.
[II.] The verdicts of guilt as to count one, aggravated robbery,
and count two, felony-aggravated murder, based on
aggravated robbery, and count four, felony-murder, based on
aggravated robbery, are against the manifest weight of the
evidence.
[III.] The verdicts of guilt as to count three and count five,
murder, and as to count four and count six, felony-murder,
based on felonious assault, are against the manifest weight of
the evidence.
III. Analysis
{¶ 41} Appellant’s first and second assignments of error are interrelated and will be
considered together. Under these assignments of error, appellant challenges the sufficiency
and weight of the evidence supporting his convictions on Count 1, aggravated robbery,
Count 2, felony aggravated murder, and Count 4, felony murder.
{¶ 42} “The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different.” [CITATION] Accordingly, we separately set forth the relevant
standards of review.
{¶ 43} “[W]hether the evidence is sufficient as a matter of law to support a
conviction involves a determination of whether the state met its burden of production at
trial.” [CITATION] In a sufficiency challenge, an appellate
court does not weigh the evidence; rather, the court determines “ ‘ “whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.” ’ ”
[CITATION] A reviewing court No. 21AP-330
“essentially assume[s] the state’s witnesses testified truthfully and determine[s] if that
testimony and any other evidence presented at trial satisfies each element of the crime.”
Harris at ¶ 14, citing [CITATION], citing [CITATION]. Thus, evidence is
sufficient to support a conviction where, if believed, that evidence would permit any
rational trier of fact to conclude that the state proved each element of the offense beyond a
reasonable doubt. Harris at ¶ 14, citing [CITATION], citing [CITATION].
{¶ 44} “Whether the evidence is legally sufficient to sustain a verdict is a question of
law.” [CITATION] at 386, citing [CITATION]. “[A] conviction based on legally insufficient
evidence constitutes a denial of due process.” Id., citing [CITATION], citing [CITATION].
“To reverse a judgment of a trial court on the basis that the judgment is not sustained by
sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the
judgment is necessary.” [CITATION] at paragraph three of the syllabus, applying Article IV,
Section 3(B)(3) of the Ohio Constitution.
{¶ 45} In contrast to a sufficiency challenge, a manifest weight claim “attacks the
credibility of the evidence presented and questions whether the state met its burden of
persuasion.” Harris at ¶ 15, citing [CITATION], citing [CITATION], citing [CITATION], citing
[CITATION] at 386-87. Although the evidence may be sufficient to sustain a guilty verdict,
a manifest weight challenge requires a different type of analysis. Harris at ¶ 14, citing [CITATION].
The weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one
side of the issue rather than the other. Id. at ¶ 15, citing [CITATION], citing
[CITATION], citing [CITATION] at 387.
{¶ 46} In considering a manifest weight claim, an appellate court sits as a
“ ‘thirteenth juror’ ” and may disagree “ ‘with the factfinder’s resolution of the conflicting
testimony.’ ” Id. at ¶ 16, quoting [CITATION], citing [CITATION]. In making this
determination, an appellate court “ ‘review[s] the entire record, weighs the evidence and all No. 21AP-330
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ”
[CITATION] at 387, quoting [CITATION].
{¶ 47} Although an appellate court reviews credibility when assessing the manifest
weight of the evidence, the court must be mindful that determinations regarding witness
testimony and the weight of testimony are primarily for the trier of fact. [CITATION] at ¶ 17,
citing [CITATION], paragraph one of the syllabus. This is so
because the trier of fact is best able “ ‘to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’ ” [CITATION] at ¶ 17, quoting [CITATION]. A conviction is not against the manifest weight of the evidence because
the trier of fact believed the state’s version of the events over the appellant’s. [CITATION],
¶ 19. The trier of fact is free to believe or
disbelieve all or any of the testimony provided at trial. [CITATION].
{¶ 48} “ ‘The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.’ ” [CITATION]
at 387, quoting [CITATION]. Further, reversal of a jury verdict on manifest weight
grounds requires unanimous concurrence of all three judges on the court of appeals panel
reviewing the case. [CITATION] at ¶ 18, citing Article IV, Section 3(B)(3) of the Ohio
Constitution; [CITATION],
¶ 2-4, citing [CITATION] at paragraph four of the syllabus.
{¶ 49} Appellant first contends there was insufficient evidence to permit a rational
trier of fact to find the essential elements of aggravated robbery under Count 1 of the
indictment. That count charged appellant with aggravated robbery of Amar in violation of
R.C. 2911.01(A)(1) and/or (3).
{¶ 50} R.C. 2911.01(A) states in part:
No person, in attempting or committing a theft offense as
defined in [R.C. 2913.01] or in fleeing immediately after the
attempt or offense, shall do any of the following: No. 21AP-330
(1) Have a deadly weapon on or about the offender’s person or
under the offender’s control and either display the weapon,
brandish it, indicate that the offender possesses it, or use it;
***
(3) Inflict, or attempt to inflict, serious physical harm on
another.
{¶ 51} [CITATION] defines “[t]heft offense” to include a violation of [CITATION]. Relevant here, [CITATION] state in part:
No person, with purpose to deprive the owner of property * *
* shall knowingly obtain or exert control over * * * the
property * * *:
(1) Without the consent of the owner * * *; [or]
(2) Beyond the scope of the express or implied consent of the
owner * * *[.]
{¶ 52} In challenging his conviction for aggravated robbery, appellant first contends
there was insufficient evidence to prove he committed a theft offense under either [CITATION] prior to killing Amar. Appellant maintains that when Amar left Knox’s
apartment building, he gave appellant the keys to his car and told him to drive it back to
appellant’s apartment while he and Knox followed in Knox’s car. Appellant maintains that
Amar’s open-ended entrustment of his car to him does not support a finding that appellant
exerted control over Amar’s car without his consent or beyond the scope of Amar’s consent
prior to Amar’s murder.
{¶ 53} Although appellant arguably may have had Amar’s initial consent to drive his
car prior to the shooting, appellant clearly acted outside the scope of that consent when he
drove away in Amar’s car after shooting and killing him. The state’s theory of the case was
that appellant committed aggravated robbery by stealing Amar’s car after shooting him.
The state expressed this theory in its opening statement: “We only have the one aggravated
robbery count and that only applies to Malik Amar because after [appellant] shot Malik
Amar in the head, he stole his vehicle; that’s your theft offense.” (Tr. Vol. I at 21.) The state
reiterated this theory in its closing argument: “Count One is Aggravated Robbery. * * *
What we’re talking about is when the Defendant shot and killed [Amar] and then shot and No. 21AP-330
[SEGMENT 21]
killed [Knox], but it’s the shooting of [Amar] and then taking his car. That’s all we’re talking
about here. Okay? He didn’t have permission from a dead man to take his car, okay,
aggravated robbery. * * * The murder was first, leading up to the theft.” (Tr. Vol. III at
507.)
{¶ 54} “ ‘ “Once a person lawfully has control over property with consent, that person
cannot thereafter exert control for a different purpose. That person already has control.
Instead, what changes is whether or not the individual [acted] within the scope of the
consent.” ’ ” (Emphasis omitted.) [CITATION], quoting [CITATION], quoting [CITATION]. “ ‘ “If the individual begins to use the
property for something outside what the owner specifically authorized, the individual has
gone beyond the owner’s consent. The [theft] statute allows for this precise situation in
R.C. 2913.02(A)(2).” ’ ” Id., quoting [CITATION], quoting [CITATION].
{¶ 55} In the present case, the state presented sufficient evidence to prove appellant
committed a theft offense by exerting control over Amar’s car beyond the scope of the
consent provided by Amar. As noted above, J.W. testified that Amar gave appellant the
keys to his car and told him to drive it back to appellant’s apartment. Thus, the scope of
consent provided by Amar was limited to appellant driving the car back to his apartment.
J.W. further testified that after appellant shot Amar, he returned to Amar’s car, drove it
around the area for several minutes and then drove away. Appellant’s flight from the scene
in Amar’s car after shooting him clearly exceeded the scope of consent provided by Amar.
{¶ 56} Appellant next argues the state did not present sufficient evidence to prove
he used a deadly weapon or inflicted serious physical harm in committing the theft offense.
We have already determined that appellant committed a theft offense when he fled the
scene in Amar’s car after shooting and killing him. Appellant’s argument essentially goes
to the issue of whether a criminal defendant “killed before he stole or stole before he killed.”
[CITATION]. The [CITATION] court found that issue to be “of
no consequence.” Id. “ ‘The victim of a robbery, killed just prior to the robber’s carrying
off her property, is nonetheless the victim of an aggravated robbery. The victim need not
be alive at the time of asportation.’ ” Id. at 571-72, quoting [CITATION]. See also [CITATION] (“This court has No. 21AP-330
consistently rejected arguments that no robbery occurred because the murder victim was
already dead at the time of the theft.”).
{¶ 57} Construing the evidence most strongly in favor of the state, there was
sufficient evidence upon which a trier of fact could find that appellant used a deadly weapon
in committing a theft offense and/or that he inflicted serious physical harm while
committing a theft offense. Accordingly, we find no merit to appellant’s sufficiency
challenge to his conviction for aggravated robbery under R.C. 2911.01(A)(1) and/or (3).
{¶ 58} Appellant next contends there was insufficient evidence to permit a rational
trier of fact to find the essential elements of aggravated felony murder under Count 2 of the
indictment. That count charged appellant with purposely causing Amar’s death while
committing aggravated robbery. R.C. 2903.01(B) states in part: “No person shall purposely
cause the death of another * * * while committing * * * aggravated robbery.”
{¶ 59} Similar to his sufficiency challenge to his conviction for aggravated robbery,
appellant argues the evidence was insufficient to support a conviction for felony aggravated
murder because it only arguably showed a theft offense occurring after Amar’s death.
Appellant maintains that a theft offense committed after a homicide does not meet the
requirement set forth in R.C. 2903.01(B) that the homicide must occur “while” an
aggravated robbery is being committed. Ohio law does not support appellant’s position.
{¶ 60} The Supreme Court has held “ ‘the term “while” does not indicate * * * that
the killing must occur at the same instant as the [predicate felony], or that the killing must
have been caused by the [felony].’ ” [CITATION], ¶ 55, quoting [CITATION]. Nor does the law require
“that the felony must have been the motive for the killing.” Id., citing [CITATION]. “Rather, ‘while’ means that ‘the killing must be directly
associated with the [felony] as part of one continuous occurrence.’ ” Id. at ¶ 56, quoting
[CITATION]. Thus, “ ‘the term “while” means that the death must occur as part of acts
leading up to, or occurring during, or immediately subsequent to the [relevant felony].’ ”
Id., quoting [CITATION]. “ ‘The sequence of events’ may be ‘examined in light of time,
place, and causal connection’ to determine whether it ‘amounts to “one continuous
occurrence.” ’ ” Id., quoting [CITATION], quoting [CITATION]. No. 21AP-330
{¶ 61} We have previously noted the evidence in support of his conviction for the
predicate felony of aggravated robbery. Similarly, with respect to felony aggravated
murder, the state presented sufficient evidence, which, if believed, established that
appellant intended to, and did, kill Amar, and then left the scene in Amar’s car. The state’s
evidence established appellant parked Amar’s car on a random residential driveway, exited
the car, and shot and killed Amar as he stood on the driveway. After killing Amar, appellant
returned to Amar’s car and drove away from the scene. When viewed “ ‘in light of time,
place, and causal connection,’ ” the situs and timing of the murder and asportation of
Amar’s car connected the offenses such that the jury reasonably could have found that the
aggravated murder “ ‘occur[red] as part of acts leading up to’ ” the aggravated robbery.
[CITATION].
{¶ 62} Construing the evidence most strongly in favor of the state, there was
sufficient evidence upon which a trier of fact could find appellant purposely caused Amar’s
death while committing aggravated robbery. Accordingly, we find no merit to appellant’s
sufficiency challenge to his conviction for felony aggravated murder under R.C. 2903.01(B).
{¶ 63} Lastly, appellant contends there was insufficient evidence to permit a rational
trier of fact to find the essential elements of felony murder under Count 4 of the indictment.
That count charged appellant with causing Amar’s death as a proximate result of
committing aggravated robbery and/or felonious assault.
{¶ 64} R.C. 2903.02(B) states in part: “No person shall cause the death of another
as a proximate result of the offender’s committing * * * an offense of violence that is a felony
of the first or second degree.” Both aggravated robbery and felonious assault are offenses
of violence. R.C. 2901.11(C)(9). Aggravated robbery is a felony of the first degree. R.C.
2901.11(C). As pertinent here, felonious assault is a felony of the second degree. R.C.
2903.11(A)(2); 2903.11(D)(1).
{¶ 65} Appellant cites [CITATION] for the proposition that “ ‘for criminal conduct to constitute the “proximate cause” of a
result, the conduct must have (1) caused the result, in that but for the conduct the result
would not have occurred, and (2) the result must have been foreseeable.’ ” (Appellant’s
Brief at 37-38, quoting [CITATION].) Appellant contends the predicate felony offense at issue is
aggravated robbery and that such “was not a ‘but for’ cause of [Amar’s] death. The ‘cause’ No. 21AP-330
cannot come after the ‘effect.’ An intent to commit theft formed after the death cannot be
the cause of the death. Further, death could not be the foreseeable result of a theft that had
not yet occurred.” (Appellant’s Brief at 38.)
{¶ 66} We decline to comment on appellant’s general “proximate cause”
proposition, other than to note that appellant’s application of that proposition focuses
exclusively on aggravated robbery. Appellant does not acknowledge that the state charged
appellant with felony murder based on aggravated robbery and/or felonious assault as
alternative predicate felonies.
{¶ 67} Here, the jury instructions set forth aggravated robbery and/or felonious
assault as alternative predicate felonies under Count 4. Thus, the jury could have
determined the relevant predicate felony offense to be felonious assault rather than
aggravated robbery. The felonious assault statute, [CITATION], prohibits a person
from “knowingly” “[c]aus[ing] or attempting to cause physical harm to another * * * by
means of a deadly weapon or dangerous ordnance.” The term “[d]eadly weapon” is defined
as “any instrument, device, or thing capable of inflicting death, and designed or specifically
adapted for use as a weapon, or possessed, carried, or used as a weapon.” [CITATION].
A “[f]irearm” is a “deadly weapon.” [CITATION].
{¶ 68} As previously mentioned, the state provided eyewitness testimony from J.W.
establishing that appellant shot and killed Amar in the driveway of a random residence. In
addition to that eyewitness testimony, the state presented evidence establishing that
responding police officers discovered Amar’s lifeless body on the driveway. The state also
presented evidence from the coroner who examined Amar’s body establishing that Amar’s
death was caused by a gunshot wound to the head. The state’s evidence further established
that a shell casing was recovered from the area near Amar’s body and the bullet that struck
Amar was recovered from his body.
{¶ 69} When viewed in a light most favorable to the state, we find there was
sufficient evidence to convict appellant of felony murder via felonious assault, as the
evidence sufficiently established appellant caused physical harm to Amar by shooting him
with a deadly weapon and that the shooting was the proximate cause of Amar’s death.
Accordingly, we find no merit to appellant’s sufficiency challenge to his conviction for
felony murder under [CITATION]. No. 21AP-330
[SEGMENT 22]
{¶ 70} Appellant also contends his convictions on Counts 1, 2, and 4 were against
the manifest weight of the evidence. Appellant’s manifest weight challenge is based on
essentially the same grounds raised in his sufficiency arguments. Appellant maintains that
the greater weight of the evidence establishes: (1) he did not commit aggravated robbery in
the commission of a theft offense because he had Amar’s consent to drive his car prior to
the shooting, (2) Amar’s death did not occur while an aggravated robbery was being
committed, and (3) Amar’s death was not the proximate result of the commission of
aggravated robbery. We have considered the evidence relevant to these arguments, and,
after reviewing the entire record, we cannot say that the evidence weighs heavily against
appellant’s convictions, that the trier of fact lost its way, or that a manifest miscarriage of
justice has occurred.
{¶ 71} Based on the foregoing, we conclude the state presented sufficient evidence
to support appellant’s convictions on Counts 1, 2, and 4 and that those convictions were
supported by the manifest weight of the evidence.
{¶ 72} Accordingly, appellant’s first and second assignments of error are overruled.
{¶ 73} In his third assignment of error, appellant challenges the weight of the
evidence supporting his convictions on Counts 3, 4, 5, and 6. Counts 3 and 5 charged
appellant with the murders of Amar and Knox, respectively; Counts 4 and 6, respectively,
charged appellant with the felony murders of Amar and Knox with the predicate offense
being felonious assault.
{¶ 74} Murder is prohibited by R.C. 2903.02(A), which states that: “No person shall
purposely cause the death of another.” As already noted, R.C. 2903.02(B) proscribes
murder based on an underlying offense of violence that is a felony of the first- or second-
degree (here, felonious assault). Appellant does not dispute that he purposely shot both
Amar and Knox and that the gunshots caused their deaths. However, at trial, appellant
testified that events preceding the shootings established that he shot and killed Amar and
Knox in self-defense. Based on appellant’s testimony, the trial court instructed the jury on
self-defense.
{¶ 75} The elements of self-defense in a deadly force case are that the defendant:
(1) was not at fault in creating the situation giving rise to the affray, (2) had a bona fide
belief that he was in imminent danger of death or great bodily harm and his only means of No. 21AP-330
escape from such danger was in the use of such force, and (3) did not violate any duty to
retreat or avoid the danger. [CITATION], ¶ 14, citing [CITATION].
{¶ 76} Self-defense is an affirmative defense—not an element of a crime. Id. at ¶ 24.
R.C. 2901.05(B)(1) provides in part:
A person is allowed to act in self-defense * * *. If, at the trial
of a person who is accused of an offense that involved the
person’s use of force against another, there is evidence
presented that tends to support that the accused person used
the force in self-defense * * * the prosecution must prove
beyond a reasonable doubt that the accused person did not
use the force in self-defense * * *.
{¶ 77} Thus, R.C. 2901.05(B)(1) requires the state “ ‘to disprove self-defense by
proving beyond a reasonable doubt that [the defendant] (1) was at fault in creating the
situation giving rise to the affray, OR (2) did not have a bona fide belief that he was in
imminent danger of death or great bodily harm for which the use of deadly force was his
only means of escape, OR (3) did violate a duty to retreat or avoid the danger.’ ” (Emphasis
sic.) [CITATION], quoting [CITATION]. “Under [the second] prong, the
defendant must have used only that force reasonably necessary to repel the attack. That is,
he must not have used excessive force.” [CITATION], citing [CITATION]. Although
“ ‘the burden of proof for the affirmative defense of self-defense has shifted to the state, the
burden of production for all affirmative defenses, including self-defense, remains with the
defendant.’ ” (Emphasis sic.) Id. at ¶ 38, quoting [CITATION], citing [CITATION].
{¶ 78} “ ‘A self-defense claim is generally an issue of credibility.’ ” [CITATION], quoting [CITATION]. “ ‘Disputes in credibility for the purposes of
evaluating self-defense are best resolved by the trier of fact.’ ” Id., quoting [CITATION].
“ ‘It has been held that “a conviction is not against the manifest weight of the evidence
because the trier of fact believed the state’s version of events over the defendant’s version”
and rejected the defendant’s claim of self- No. 21AP-330
defense.’ ” [CITATION], quoting Bentley at ¶ 24, quoting Messenger, [CITATION], at ¶ 49.
“When weighing witness testimony supporting a claim of self-defense, the trier of fact is
‘free to believe or disbelieve the testimony of the witnesses’ and ‘is in the best position to
take into account inconsistencies, along with the witnesses’ manner and demeanor, and
determine whether the witnesses’ testimony is credible.’ ” [CITATION], quoting Bentley at ¶ 24,
citing [CITATION].
{¶ 79} Appellant does not separately address each of the three prongs of a self-
defense claim. Rather, appellant provides the following general narrative, which, we note,
is based on his version of events. Amar acted belligerently toward him over the entire
course of the evening based on his belief that appellant had touched J.W. inappropriately.
While at Baker’s apartment, Amar became so belligerent about the touching incident that
appellant feared for his safety and brandished a firearm as a warning to Amar. Appellant
believed Amar’s assertion that he and Knox were armed, and he told J.W. that he believed
Amar and Knox meant to harm him. Amar’s and Knox’s pursuit of him while he tried to
elude them caused him to call his mother because he thought his life was in danger. After
he pulled Amar’s vehicle into the driveway, Amar approached him and aggressively
attempted to take appellant’s gun despite appellant’s warning to stay back. When Knox
reached for something under the seat of his vehicle, appellant ordered him to freeze; Knox
did not heed appellant’s warning. From this narrative, we glean appellant’s arguments to
be that he was not at fault in creating the situation leading to the deaths of Amar and Knox
and that he had a bona fide belief that he was in imminent danger of death or great bodily
harm for which the use of deadly force was his only means of escape.
{¶ 80} The state separately addresses each element of a self-defense claim. The state
first argues that appellant was at fault in creating the situation giving rise to the deaths of
Amar and Knox. In support, the state cites J.W.’s testimony that after appellant pulled
Amar’s vehicle into the driveway, he exited it with his gun drawn. Amar exited Knox’s
vehicle, unarmed, with his hands up. When Amar walked toward appellant, appellant
stated “Pow, N word” and shot him. As to Knox, the state cites appellant’s own testimony
that Knox was seated in his car, facing forward, when appellant shot him in the side of the
head. The state further references appellant’s testimony that he never observed either
Amar or Knox display a gun. No. 21AP-330
{¶ 81} The state next argues appellant did not have a bona fide belief that he was in
imminent danger of death or great bodily harm for which the use of deadly force was his
only means of escape. In support, the state cites J.W.’s testimony that Amar did not have a
gun in his hand when he approached appellant on the driveway as well as appellant’s
testimony that he never saw Amar or Knox display a weapon. The state further notes the
testimony of CPD personnel that no weapons were recovered from the area near Amar’s
body or from Knox’s car. The state also cites appellant’s testimony that Knox was seated in
his vehicle when appellant shot him.
{¶ 82} Lastly, the state argues appellant violated his duty to retreat and avoid any
danger. In support of this argument, the state observes that after leaving Knox’s apartment
complex in Amar’s car, appellant chose to stop in a random driveway rather than call for
help or drive to a safe location. The state further notes appellant’s testimony that he was
still seated in Amar’s vehicle when Amar exited Knox’s vehicle and could have driven away
at that point; however, he chose to exit Amar’s car and confront Amar with his gun drawn.
{¶ 83} The state also argues that appellant’s own testimony contradicts his
assertions that he was fearful of Amar over the entire course of the evening preceding the
shootings. Specifically, the state cites appellant’s admissions that he voluntarily rode with
Amar to the ATM, to Baker’s residence and to Knox’s apartment, cancelled his Lyft ride,
and agreed to drive Amar’s vehicle for him after leaving Knox’s apartment.
{¶ 84} In addition to the arguments and evidence cited by the state in its brief, we
also note that appellant’s actions after the shootings tend to discredit his testimony.
Appellant drove Amar’s car away from the scene, destroyed evidence by throwing his gun
in a trash can, and did not call police immediately to report that he had shot two men in
self-defense.
{¶ 85} Having reviewed the entire record, weighed the evidence and all reasonable
inferences, and considered the credibility of witnesses, we conclude the jury did not lose its
way and create a manifest miscarriage of justice in finding that the state, beyond a
reasonable doubt, disproved that appellant was not at fault in creating the situation leading
to the shooting deaths of Amar and Knox, that appellant had a bona fide belief he was in
great bodily harm necessitating the use of deadly force, and that appellant did not violate
the duty to retreat or avoid the danger. Accordingly, the manifest weight of the evidence No. 21AP-330
[SEGMENT 23]
supported appellant’s convictions for murder and felony murder with respect to both Amar
and Knox.
{¶ 86} Appellant’s third assignment of error is overruled.
IV. Conclusion
{¶ 87} Having overruled appellant’s three assignments of error, and appellant
having voluntarily dismissed his fourth assignment of error, we hereby affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT, P.J., and MENTEL, J., concur.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[CITATION]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-543
v. : (C.P.C. No. 18CR-4362)
Daquan J. Lee, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 12, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BOGGS, J.
{¶ 1} Defendant-appellant, Daquan J. Lee, appeals the judgment of the Franklin
County Court of Common Pleas, which convicted him of one count of murder, in violation
of R.C. 2903.02, an unclassified felony, with a firearm specification. For the following
reasons, we overrule Lee’s assignments of error and affirm the trial court’s judgment.
I. PROCEDURAL HISTORY AND FACTS
{¶ 2} On August 26, 2018, a group of friends, many of whom were former high
school classmates, informally gathered at an apartment at 410 Knob Hill West. The
apartment was a frequent hangout spot for Lee, and it was not unusual for these friends to
engage in boxing matches or fistfights for entertainment and as a way to resolve
disagreements. On the evening of August 26, 2018, two of the friends, Lee and Ali Aliyow,
began arguing over a marijuana deal in the kitchen. Anthony Natividad, one of the
roommates at the Knob Hill West apartment, testified at trial that after the argument No 23AP-543
became more heated, Aliyow began throwing punches at Lee. Natividad further testified
that in the span of approximately five seconds after Aliyow’s first punch, Lee drew a gun,
pointed it at Aliyow and fired. The bullet struck Aliyow in the chest. Natividad testified
that, after the gun was fired, he and Lee struggled for control of the gun until another friend,
Miguel Jean Louis, helped Natividad restrain Lee on the kitchen floor. Natividad then
called 911. After Aliyow was shot, Natividad remained in the kitchen with Miguel and
several others until officers arrived several minutes later.
{¶ 3} On July 31, 2023, a jury trial began, which included testimony from Anthony
Natividad, Kiell Fuller, and Miguel Jean Louis, all of whom witnessed the incident. The
state also presented testimony from Deputy Joshua Crosby who was one of the first officers
at the scene. Deputy Crosby testified that when he entered the apartment there were several
individuals restraining Lee on the floor and that those individuals stated that the restrained
individual was the shooter. Deputy Crosby also testified that the police detained and
separated the individuals in the kitchen so they could not talk to each other.
{¶ 4} The jury also heard testimony from Special Agent Joshua Durst with the Ohio
Bureau of Criminal Investigation. Special Agent Durst authenticated photographs that
were taken inside the house and noted that no remarkable DNA evidence was collected.
{¶ 5} Detective Brian Meister who was assigned to the case also testified. Detective
Meister testified that he and another detective interviewed Lee who initially said that he
had been robbed and that Aliyow had shot himself. In the interview, Lee denied that he
had shot Aliyow and instead proffered that Aliyow had pointed a gun at him. Lee later
admitted that Aliyow had given his gun to another man prior to their argument. Detective
Meister suggested, during his interview of Lee, that Lee shot Aliyow in self-defense, as a
technique to get Lee to talk. Lee admitted that he and Aliyow were in an argument over a
marijuana deal and that Aliyow had punched him in the face. Ultimately, Lee admitted that
he pointed his gun at Aliyow and had pulled the trigger, but he also stated that he acted in
self-defense and was afraid.
{¶ 6} Detective Meister also authenticated photographs he took of Lee that showed
red marks on his cheek and an injury to his eye, indicative of a fistfight. He further testified
that he had interviewed several individuals who were in the apartment and that all of them
had told him there were no other guns in the kitchen during the fight. However, several No 23AP-543
days later, Detective Meister learned that Aliyow had a gun but had given it to another
individual. At trial, Natividad testified that Aliyow had a gun but, prior to Aliyow and Lee
physically fighting, Aliyow had handed the gun to Wes in the kitchen in the presence of Lee.
Jean Louis and Fuller also testified that Aliyow had handed his gun to Wes. Fuller testified
that Wes fled from the apartment with Aliyow’s gun.
{¶ 7} The state and defense also presented a joint stipulation including what would
have been the testimony of Dr. John Daniels of the Franklin County Coroner’s Office, who
performed an autopsy of Aliyow. The parties stipulated that Dr. Daniels, if he had been
called to testify, would have stated that the cause of death was a gunshot wound to the chest
and the manner of death was homicide.
{¶ 8} After the prosecution rested, Lee moved for a Crim.R. 29 acquittal on the
basis that the state did not put forth sufficient evidence in accordance with R.C.
2901.05(B)(1) to show that Lee did not act in self-defense. Lee argued that there was no
evidence that he did not have reasonable grounds to believe that he was in imminent danger
of great bodily harm. The state argued that it had proved all of the elements of murder and
that it was not reasonable for Lee to have believed he was in danger of imminent death or
bodily harm when he used a firearm to shoot an unarmed person after a brief fight. The
court denied Lee’s motion, stating that the jury could believe the testimony of any of the
witnesses and that Lee did not say it was self-defense until the detective suggested it in his
initial interview.
{¶ 9} On August 2, 2023, the jury returned a verdict finding Lee guilty of murder
with a firearm specification in violation of R.C. 2903.11. On August 8, 2023, the trial court
sentenced Lee to a term of 15 years to life in prison with an additional consecutive three-
year term for a firearm specification. Lee now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 10} Lee argues the following assignments of error:
(1) The trial court erred when it denied DaQuan Lee’s Rule 29
motion for acquittal.
(2) The verdict of guilt as to count two was against the manifest
weight of the evidence. No 23AP-543
III. LEGAL ANALYSIS
{¶ 11} In his first assignment of error, Lee argues that the trial court erred in
denying his Crim.R. 29 motion. A Crim.R. 29 motion for acquittal tests the sufficiency of
the evidence. [CITATION] We thus review the trial court’s
denial of appellant’s motion for acquittal using the same standard applicable to a sufficiency
of the evidence review. Id., citing [CITATION]
{¶ 12} Lee argues that the prosecution did not meet its burden in disproving self-
defense under R.C. 2901.05(B)(1). In 2019, the General Assembly shifted the burden of
proving the affirmative defense of self-defense from a defendant and instead placed on the
prosecution the burden “to disprove at least one of the elements of self-defense beyond a
reasonable doubt.” [CITATION] “[S]ufficiency of the evidence is not
the proper framework to review whether the state proved the absence of self-defense.”
[CITATION] See also [CITATION] This court has determined that in considering claims of
self-defense, the manifest weight standard is the proper standard of review. [CITATION]
Because a Crim.R. 29 motion for acquittal is not a valid method for
challenging the state’s satisfaction of its burden, we therefore overrule Lee’s first
assignment of error.
{¶ 13} In Lee’s second assignment of error, he argues that his conviction was against
the manifest weight of the evidence. We note that an appellate court reviewing a manifest
weight challenge to a criminal conviction “may not merely substitute its view for that of the
trier of fact, but must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” [CITATION] No 23AP-543
[SEGMENT 2]
Ohio St.3d 380, 387 (1997). An appellate court should reserve reversal of a conviction as
being against the manifest weight of the evidence for the most “exceptional case in which
the evidence weighs heavily against the conviction.” (Internal quotations omitted.) [CITATION].
{¶ 14} In both of his assignments of error, Lee essentially argues that the state did
not disprove that Lee acted in self-defense. Specifically, he argues that the trial court erred
in denying his Crim.R. 29 motion for acquittal and that his ultimate conviction was against
the manifest weight of the evidence. We do not agree.
{¶ 15} When deadly force is used and the accused presents evidence that tends to
support that the accused used the force in self-defense, the state must disprove at least one
of the following elements of a self-defense claim: (1) the accused was not at fault in creating
the situation giving rise to the affray, (2) the accused had a bona fide belief that he was in
imminent danger of death or great bodily harm and that his only means of escape from such
danger was in the use of such force, and (3) the accused did not violate any duty to retreat
or avoid the danger. [CITATION].
{¶ 16} At trial, the state argued that Lee did not meet the second element of a self-
defense claim. The second element of a self-defense claim entails “a combined subjective
and objective test.” [CITATION]. The trier of fact “first must consider the defendant’s situation objectively, that is, whether, considering all of the defendant’s particular characteristics, knowledge, or lack of knowledge, circumstances,
history, and conditions at the time of the attack, []he reasonably believed []he was in
imminent danger.” Id. “Then, if the objective standard is met, the [trier of fact] must
determine if, subjectively, this particular defendant had an honest belief that []he was in
imminent danger.” (Emphasis sic.) Id. at 331.
{¶ 17} The second element also requires a showing that “ ‘the defendant must have
used only that force reasonably necessary to repel the attack. That is, he must not have
used excessive force.’ ” [CITATION], quoting [CITATION], citing [CITATION], ¶ 58. Further, “[i]mplicit in the ‘second element
of self-defense, i.e., that the defendant’s use of deadly force was in “good faith,” is the
====== End of Document ====== No 23AP-543
requirement that the degree of force used was “warranted” under the circumstances and
“proportionate” to the perceived threat.’ ” [CITATION] at ¶ 58, quoting [CITATION], 4th
Dist. No. 08CA12, 2009-Ohio-4416, ¶ 31. Therefore, if “ ‘ “the amount of force used is so
disproportionate that it shows an ‘unreasonable purpose to injure,’ the defense of self-
defense is unavailable.” ’ ” Id. at ¶ 58, quoting [CITATION], 4th Dist. No. 11CA818, 2012-
Ohio-3934, ¶ 55, quoting [CITATION], 8th Dist. No. 94482, 2011-Ohio-87, ¶ 27, quoting
[CITATION], 4th Dist. No. 00CA035, 2001 Ohio App. LEXIS 1489.
{¶ 18} Here, we are not persuaded by Lee’s argument that the jury’s determination
that Lee did not act in self-defense was against the manifest weight of the evidence. Rather,
the evidence in the record supports the jury being able to determine that Lee did not have
an honest belief that he was in imminent danger of death or great bodily harm. The state
presented witnesses who testified that Lee was familiar with the friend group’s practice of
resolving arguments with boxing matches and fistfights. Witnesses stated that Lee had
been present and participated in one of these fights before and that when fights had become
too one-sided the friends in the house would break up those fights before it escalated too
far. According to witnesses, Aliyow had handed off his gun prior to the argument becoming
physical and had made a point, in passing off the gun, that he didn’t need it to resolve the
issue. This occurred in Lee’s presence. In fact, Lee stated in his interview with detectives
that Aliyow had given his gun to one of the individuals in the apartment. (State’s Ex. F at
43:03-17; 44:08.)
{¶ 19} We also note that a fact finder could reasonably determine that Lee’s
response was not proportionate to the perceived threat. Witness testimony indicated that
it was mere seconds between when Aliyow threw the first punches and when Lee drew and
fired his gun. In considering a self-defense claim involving the firing of a gun during a
fistfight, this court said:
[a]lthough the law does not quantify specifically the amount of
force a defendant is entitled to use in self-defense, the jury in
weighing the credibility of the various witnesses reasonably
could conclude defendant was the only one firing a gun and in
effect escalated a fist fight into a shoot out. As a result, even if
defendant were privileged to act in self-defense, the jury could
decide he exceeded the force he was entitled to use.
[CITATION], 10th Dist. No. 10AP-114, 2010-Ohio-6041, ¶ 41. No 23AP-543
{¶ 20} Ultimately, Lee asks this court to give greater weight to his claims of self-
defense than the jury gave to the testimony of the witnesses at trial. Lee points to
inconsistencies in witnesses’ testimony, namely that the group of friends in the apartment
lied to police when they said there was no other gun, but in fact Aliyow had a gun that night
but handed it to another individual prior to the fight. However, we recognize that a “ ‘ “ self-
defense [or defense of another] claim is generally an issue of credibility.” ’ ” [CITATION], at ¶ 78, quoting [CITATION], ¶ 41, quoting [CITATION], ¶ 57.
“ ‘ “Disputes in credibility for the purposes of evaluating self-defense [or defense of another]
are best resolved by the trier of fact.” ’ ” Id., quoting [CITATION], ¶ 41, quoting [CITATION], ¶ 24. “ ‘ “It has been held that ‘a
conviction is not against the manifest weight of the evidence because the trier of fact
believed the state’s version of events over the defendant’s version’ and rejected the
defendant’s claim of self-defense [or defense of another]. ” ’ ” Id., quoting [CITATION], ¶ 41,
quoting [CITATION], ¶ 24, quoting [CITATION], ¶ 49. “ ‘When weighing witness testimony supporting a claim of self-defense [or
defense of another], the trier of fact is “free to believe or disbelieve the testimony of the
witnesses” and “is in the best position to take into account inconsistences, along with the
witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is
credible.” ’ ” Id., quoting [CITATION], ¶ 41, quoting [CITATION], citing [CITATION], ¶ 43.
{¶ 21} Here, the jury had the opportunity to evaluate the testimony of all the
witnesses at trial and we decline to displace their determination of credibility. We therefore
overrule his second assignment of error.
IV. CONCLUSION
{¶ 22} For these reasons, we overrule both of Lee’s assignments of error and affirm
the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230591
TRIAL NOS. C-23TRD-24768-A, B
Plaintiff-Appellee, :
vs. :
O P I N I O N.
MICHAEL JUSTICE, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed in Part and Cause Remanded; Appeal
Dismissed in Part
Date of Judgment Entry on Appeal: July 5, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Michael Justice appeals his conviction, after a bench trial, for operating
[SEGMENT 3]
a motor vehicle with an invalid license plate. In two assignments of error, Justice
contends that his conviction is not supported by sufficient evidence and is contrary to
the manifest weight of the evidence. For the following reasons, we reverse the
judgment of the trial court.
Factual Background
{¶2} On September 19, 2023, Michael Justice was charged with operating a
motor vehicle without a license and operating a motor vehicle with an invalid license
plate. He pleaded not guilty and proceeded to a bench trial.
{¶3} Deputy Michael Patrustie, a patrol officer for the Hamilton County
Sheriff’s Department, testified that he was patrolling near the Three Rivers schools
when a Jeep drove past him with a license plate tag that expired in 2022. Patrustie
drove behind the car and “ran the license plate” multiple times. He learned that the
tag had expired on November 27, 2022. The vehicle that was on his computer was a
2006 Lincoln station wagon and not the Jeep that he had pulled over.
{¶4} Justice had purchased the car a week prior but could not provide any
proof that he owned the vehicle. Justice said he had an insurance card but was unable
to provide a copy because his phone was not working. Patrustie retrieved the VIN
number of the Jeep, returned to his cruiser, and ran the number. The results of his
search revealed that the 1998 Jeep was registered to a woman who lived in Amelia.
According to Patrustie, the vehicle had no license plate attached to it. Patrustie
testified that the vehicle’s registration had expired in August 2021.
{¶5} Patrustie returned to the Jeep and asked Justice for his driver’s license.
OHIO FIRST DISTRICT COURT OF APPEALS
Justice’s license had expired in 2021. Patrustie returned to his cruiser to verify the
license, and found the “license was in our system, expired, from 2021.” Patrustie
decided to tow the vehicle because the plates did not match the vehicle, Justice’s
driver’s license was invalid, and Justice could not provide proof of insurance.
{¶6} On cross-examination, Patrustie testified that Justice explained that the
plate was on the Jeep when he bought it, but Justice was unable to tell him when he
purchased the car and from whom he bought it. Justice further stated that he thought
he had 30 days to transfer the plates, and he had the car for a week. According to
Patrustie, when he ran the license plate number, he discovered that the plate on the
vehicle was registered to an owner who lived in Loveland, Ohio. Patrustie did not bring
a copy of the driver’s license or a copy of the system inquiry showing that the license
was expired.
{¶7} Justice testified that he was unaware that the plates were not valid
because they were on the car when he purchased it a week before the stop. Justice
admitted that he did not register the vehicle in his name when he purchased it, and
the car “is still in the process of being put in my name.” Justice further testified that
the dealer who sold him the car was supposed to put the vehicle in his name, and that
he had not yet obtained the title for the car.
{¶8} During closing arguments, Justice argued that the state failed to prove
that he recklessly violated the fictitious-plate statute because he was unaware that the
plates were invalid. He admitted that the driver’s license was expired.
{¶9} The trial court found Justice guilty of both charges. Justice appealed,
both charges, but in his brief, Justice does not challenge the driving-without-a- license
conviction, and he raises no assignment of error with respect to that conviction.
OHIO FIRST DISTRICT COURT OF APPEALS
Therefore, we dismiss the appeal as it relates to the A charge.
Sufficiency of the Evidence
{¶10} In his first assignment of error, Justice contends that his conviction was
not supported by sufficient evidence because the state failed to produce evidence that
he recklessly displayed a license plate registered to another vehicle.
{¶11} In reviewing a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime had been proved beyond a reasonable doubt. [CITATION]
{¶12} In relevant part, R.C. 4549.08 provides:
(A) No person shall operate or drive a motor vehicle upon the public
roads and highways in this state if it displays a license plate or a
distinctive number or identification mark that meets any of the
following criteria:
(3) Belongs to another motor vehicle, provided that this section does not
apply to a motor vehicle that is operated on the public roads and
highways in this state when the motor vehicle displays license plates
that originally were issued for a motor vehicle that previously was
owned by the same person who owns the motor vehicle that is operated
on the public roads and highways in this state, during the thirty-day
period described in division (A)(4) of section 4503.12 of the Revised
Code.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} The definition of “recklessly” is set forth in R.C. 2901.22(C):
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk
that the person’s conduct is likely to cause a certain result or is likely to
be of a certain nature. A person is reckless with respect to circumstances
when, with heedless indifference to the consequences, he perversely
disregards a known risk that such circumstances are likely to exist.
{¶14} The Legislative Commission Comment to the code section further
explains that a person acts recklessly when, “without caring about the consequences,
he obstinately disregards a known and significant possibility that his conduct is likely
to cause a certain result or be of a certain nature, or that certain circumstances are
likely to exist.”
{¶15} Justice argues that he did know that the plate was registered to another
vehicle because the plate was on the vehicle when he purchased it a week earlier. To
the extent that Justice allegedly believed that the plate was registered to the Jeep and
that he had 30 days to transfer the plate, “a ‘mistake of fact’ is not available as a defense
to a crime requiring a mental state of recklessness.” [CITATION], ¶ 18, citing [CITATION], 8 (Nov. 17, 1998) (finding the trial court did not
abuse its discretion in failing to give a jury instruction on “mistake of fact” as
defendant was not charged with a specific intent crime, but rather a crime that had the
requisite mental state of “recklessly”).
{¶16} To prove intent, the Ohio Supreme Court has recognized that “intent,
lying as it does within the privacy of a person’s own thoughts, is not susceptible [to]
OHIO FIRST DISTRICT COURT OF APPEALS
objective proof.” [CITATION]
Instead, intent must often be inferred from the act itself and the surrounding
circumstances, including the acts and statements of the defendant surrounding the
time of the offense. [CITATION]
{¶17} In this case, Justice admittedly drove a car that was not titled or
registered in his name. When he purchased the car, it contained a license plate that
he knew was not issued to him. Although Justice acknowledged that he was required
to obtain a license plate for the car, he instead chose to drive the car with a license
plate issued to another person and a tag that had expired in November 2022. The state
presented sufficient evidence that Justice acted recklessly in disregard of a known risk
by driving the car knowing he was required to obtain a plate for the vehicle. Viewing
the evidence in a light most favorable to the state, a reasonable factfinder could
conclude that Justice recklessly operated the vehicle with an invalid license plate.
{¶18} We overrule the assignment of error.
Manifest Weight of the Evidence
{¶19} Next, Justice argues that the conviction was contrary to the weight of
the evidence because the sole evidence that the plate was registered to another vehicle
was the testimony of Patrustie, and his testimony constituted inadmissible hearsay.
{¶20} In reviewing a manifest-weight challenge, an appellate court examines
the evidence in order to determine whether such evidence, if believed, would support
a conviction. [CITATION]
“The court, reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
OHIO FIRST DISTRICT COURT OF APPEALS
conflicts in the evidence, the [trier of fact] clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” Id. at 387.
{¶21} At trial, Patrustie testified, without objection, that he “ran [Justice’s]
license plate” multiple times while in his cruiser. According to the result of his
searches, the license plate tag had expired on November 27, 2022, and the license plate
was registered to a 2006 Lincoln station wagon, not Justice’s Jeep. Patrustie testified
that his search revealed that the plate on the vehicle was registered to an owner who
lived in Loveland, Ohio. Patrustie did not bring the alleged system inquiry which
[SEGMENT 4]
reportedly showed that the license was registered to another vehicle. Patrustie’s
testimony was based solely on his recollection of the information he purportedly
received from multiple, undocumented computer inquiries.
{¶22} Testimony as to the results of a computer inquiry “constitutes a textbook
example of hearsay” in that Patrustie repeated an out-of-court statement generated by
a computer inquiry, offered for the truth of the matter asserted. See [CITATION] (testimony based on
an officer’s recollection of computer data is inadmissible hearsay); [CITATION]
(officer’s testimony based on information from police computer was inadmissible
hearsay); [CITATION]
(sheriff’s testimony based on his recollection of computer generated information from
an ambiguous database was inadmissible hearsay); [CITATION]
OHIO FIRST DISTRICT COURT OF APPEALS
21, 1983) (information that the officer testified that he obtained from a computer
inquiry, regarding the status of defendant’s driver’s license, was inadmissible
hearsay). Thus, the admission of Patrustie’s testimony regarding the results of the
computer inquiry rose to the level of plain error because the testimony was the only
evidence supporting the conviction. See [CITATION] at 44.
{¶23} Although Justice contends that the admission of the hearsay resulted in
a conviction that was against the weight of the evidence, he is essentially arguing that
“that there is no evidence to support his convictions, thus raising a claim that his
convictions are based on insufficient evidence.” Id. at ¶ 33. See [CITATION], ¶ 4 (“[A]
review of the weight of the evidence necessarily involves an evaluation of the sufficiency of the evidence in that,
in order for this Court to weigh the evidence, there must be evidence to weigh.”).
{¶24} However, we are required to consider all of the evidence admitted at
trial, regardless of whether it was admitted erroneously, when reviewing claims based
on the sufficiency or manifest weight of the evidence. See [CITATION], ¶ 27, citing [CITATION], ¶ 16, citing [CITATION], ¶ 95.
Thus, even if the testimony was erroneously admitted, under our review, we must still
consider it. See [CITATION], ¶ 12.
On the record presented to the court, we cannot say that the trial
court clearly lost its way and created such a manifest miscarriage of justice that we
OHIO FIRST DISTRICT COURT OF APPEALS
must reverse the conviction. See [CITATION]. The second assignment of error is overruled.
{¶25} In his second assignment of error, Justice argued that the admission of
the hearsay testimony was plain error but presented the argument as an issue rather
than a separate assignment of error. The state was afforded the opportunity to
respond to this issue in its brief.
{¶26} “Generally, appellate courts rule on assignments of error only and do
not address mere arguments.” [CITATION]. “It is common, however, for an appellate
court to take assignments of error from appellant’s brief arguments rather than
outright refuse to address the argument in the interest of justice.” [CITATION], citing
[CITATION] (although defendant’s
brief did not contain a separate statement of the assignments of error, rather than
dismiss the appeal, the appellate court synthesized an assignment of error from the
argument portion of the brief); [CITATION] (addressing an issue not properly raised as an assignment of
error in the interests of justice); [CITATION] (addressing the merits because “the error
assigned from the trial court’s judgment is readily discernible from appellant’s
‘[s]tatement of issues presented’ ”); [CITATION] (although not properly briefed in a separate assignment
of error, an issue raised by the appellant was considered because the appellee was
afforded an opportunity to respond).
OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} In the interests of justice, we will address this argument and hold that
the conviction must be reversed because the admission of Patrustie’s testimony as to
the results of his computer inquiry, the sole evidence supporting the conviction, was
plain error. See [CITATION], at ¶ 44.
Conclusion
{¶28} Accordingly, we reverse the judgment of the trial court and remand the
cause to the trial court for a new trial consistent with this opinion with respect to the
B charge and dismiss the appeal with respect to the A charge.
Judgment reversed in part and cause remanded; Appeal dismissed in part.
CROUSE and KINSLEY, JJ., concur.
Please note:
The court has recorded its own entry this date.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-90
v. : (C.P.C. No. 18CR-2827)
Christopher Lee Cumberlander, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 25, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Paula M. Sawyers, for appellee. Argued: Paula M. Sawyers.
On brief: Lisa M. Tome, for appellant. Argued: Lisa M.
Tome.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Christopher Lee Cumberlander, appeals from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas, pursuant to a jury verdict, finding him guilty of one count of felonious assault with
firearm specification. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On June 13, 2018, appellant was indicted on one count of felonious assault in
violation of R.C. 2903.11, a second-degree felony, with a three-year firearm specification,
one count of improperly handling firearms in a motor vehicle (“improper handling”) in
violation of R.C. 2923.16, a fourth-degree felony, and one count of having weapons while No. 23AP-90
under disability (“WUD”) in violation of R.C. 2923.13, a third-degree felony. The charges arose from the shooting of Keyon Edwards.
{¶ 3} Appellant elected to waive his right to a jury trial and be tried by the court on the improper handling and WUD counts. Following a bench trial, the trial court found appellant guilty on both counts. Thereafter, the matter proceeded to a jury trial on the felonious assault with firearm specification count. The parties inform this court that after the jury was unable to reach a unanimous verdict, the trial court declared a mistrial. [CITATION]
{¶ 4} On November 14, 2022, a jury trial commenced on the felonious assault with firearm specification count. [CITATION] Plaintiff-appellee, State of Ohio, presented the following evidence.
{¶ 5} Edwards testified that in summer 2018, he resided on Pine Bluff Road in Columbus, Ohio with his then-fiancée, Tamika Jenkins, Jenkins’ daughter she shared with appellant, Jenkins’ son, and Trinity Gills Edwards, his daughter from a previous relationship. Edwards had known appellant for approximately three years. He described their relationship as “up and down.” (Tr. Vol. I at 42.) He recounted a prior incident where appellant attempted to force his way into the house, resulting in a physical altercation between the two men.
{¶ 6} On June 10, 2018, Edwards and his cousin, Benjamin Thomas, returned home from a weekend trip out of town. Edwards and Thomas went inside the house to get Gills Edwards because they were going to drive her to a relative’s home. While Edwards was inside, Jenkins’ son told Edwards that appellant was outside asking to see his daughter.
{¶ 7} Edwards and Thomas walked outside; neither was armed. Edwards saw appellant’s car parked at the bottom of the driveway, blocking Edwards’ exit. Appellant started yelling at Edwards from the car; Edwards told him to move so he could exit his driveway. Appellant told Edwards to bring his daughter outside; Edwards replied he would not do so because it was not appellant’s day to visit her. The argument escalated, with appellant ultimately threatening to shoot and kill Edwards if Edwards did not bring his
[CITATION] Appellant asserts in the Statement of the Case portion of his brief that after the jury in the first trial was unable to reach a verdict, “[t]he trial court, by way of a criminal processing sheet declared a mistrial.” (Appellant’s Brief at 5.) The state accepted appellant’s Statement of the Case in this regard.
[CITATION] Following opening statements but prior to the commencement of testimony, the jury viewed the crime scene. No. 23AP-90
daughter to him. Anticipating that appellant wanted to fight him, Edwards emptied his
pockets of his wallet, cellphone, and other items and placed them on his front lawn.
{¶ 8} Appellant then drove a short distance down the street. He exited his car, put
his hands up to signal he wanted to fight, and told Edwards to “[c]ome down here and fight.”
(Tr. Vol. I at 48.) Edwards walked toward appellant; at this point, Edwards did not see a
weapon in appellant’s hands. When Edwards got within 25-30 feet of appellant, appellant
reached into his back pocket, retrieved a gun, and immediately shot Edwards once in the
upper left thigh.
{¶ 9} Realizing he had been shot and fearing appellant would shoot at him again,
Edwards turned around, walked back to his house, and told Jenkins to call 911. He then
retrieved a shotgun he kept inside the house. When Thomas tried to take the shotgun away
from him, Edwards put it inside the living room closet. Edwards then sat outside and
waited for medics to arrive; however, when the pain in his leg intensified, he decided to go
to the hospital on his own. Edwards was treated and released that day.
{¶ 10} On cross-examination, Edwards conceded that during the previous incident
with appellant, he punched appellant twice in the face because he was “trying to hurt him.”
(Tr. Vol. I at 65.) Edwards further testified that appellant and Jenkins had a “parental
agreement” regarding their daughter; however, he could not recall the details of that
agreement. (Tr. Vol. I at 66.) Edwards averred that prior to June 10, 2018, appellant had
never picked up his daughter from the house; rather, pursuant to the agreement between
appellant and Jenkins, they exchanged the child at various public locations.
{¶ 11} As to the events of June 10, 2018, Edwards testified he was “pretty sure” that
Thomas owned a gun; however, Thomas did not “have anything on him that day.” (Tr.
Vol. I at 71.) Edwards acknowledged that during his initial encounter with appellant “things
got heated,” with both men yelling at each other. (Tr. Vol. I at 72.) When appellant
threatened to kill him, he thought appellant was “just puffing up,” so he did not take him
seriously and was not afraid. (Tr. Vol. I at 75.) As to the second encounter, Edwards
admitted that when appellant exited his car and urged him to fight, he could have walked
inside his house and told Jenkins to call police or retrieve his discarded cell phone from the
front lawn and called police himself. He conceded he did not do so because he “was upset No. 23AP-90
[SEGMENT 5]
and ready to fight with [appellant].” (Tr. Vol. I at 76.) Edwards also conceded that
appellant did not move toward him after appellant exited his car and stood in the street.
{¶ 12} When questioned about testimony he provided at a previous hearing related
to the instant case, Edwards indicated he did not remember asserting that he threatened
appellant. He acknowledged he had previously testified that Thomas did not own any guns;
however, he now averred he was not aware that Thomas owned a gun until the incident on
June 10, 2018.
{¶ 13} On redirect examination, Edwards reiterated that while appellant was seated
in his car at the bottom of the driveway, he threatened to kill Edwards; specifically,
appellant told Edwards “[i]f you don’t get away from my car, I’m gonna shoot you. I’m
gonna kill you.” (Tr. Vol. I at 85.) Edwards averred he did not see appellant with a weapon
when appellant was seated in his car. He also testified Thomas did not take a weapon with
him on their weekend trip, did not have a weapon on him at the time of the incident, and
never told Edwards he had a weapon.
{¶ 14} Thomas testified he owned several guns; but he did not take a gun with him
on the weekend trip because Edwards had asked him not to bring a gun with him. When
he and Edwards returned from their trip, Edwards parked in his driveway and the two
began unloading the car. While Edwards was in the house, appellant pulled up and asked
Thomas to bring his daughter to him because he wanted to take her to a cookout. Because
Thomas did not know appellant, he told him he would have to discuss the situation with
Edwards. After Thomas reported the conversation to Edwards, Edwards came outside,
approached appellant as he sat in the car, and told him he could not take his daughter
because it was not his day to visit her. Appellant got angry, started cursing at Edwards, and,
using expletives and a derogatory racial slur, told his wife that he was “about to shoot”
Edwards. (Tr. Vol. I at 98.) Based on appellant’s threatening language, Thomas informed
Edwards he thought appellant had a gun. Edwards told appellant he could not have his
daughter and that he should leave; he did not threaten appellant.
{¶ 15} Appellant angrily “pulled off a little bit” and parked on the opposite side of
the street. (Tr. Vol. I at 101.) Thomas told Edwards he believed appellant was afraid of
Edwards and would try to shoot him; as such, he urged Edwards not to approach appellant.
Appellant then “backed back up” to Thomas and Edwards; both appellant and Edwards No. 23AP-90
were angry and continued cursing at each other. (Tr. Vol. I at 102.) Appellant then “pulled
off” again and parked in front of a house located down the street on Pine Bluff Road. (Tr.
Vol. I at 102.) Appellant got out of his car and started yelling and cursing at Edwards. At
this point, Thomas did not see a weapon on appellant’s person. Thomas saw a woman
standing on the front porch of the house where appellant was parked. Edwards told
Thomas he wanted to get appellant away from the neighbor’s house, so he handed Thomas
his wallet and cellphone and walked toward appellant. When Edwards was approximately
20 feet from appellant, appellant pulled a gun from his pocket and shot Edwards without
warning. Thomas dropped Edwards’ wallet and cellphone and told appellant he was
“gonna get [his] ass” for shooting Edwards; appellant responded, “[s]hut up before I kill
your ass.” (Tr. Vol. I at 115.) Edwards then walked back to his house and retrieved a
shotgun. Before Edwards left the house, Thomas took the shotgun away because he did not
want Edwards to retaliate against appellant. According to Thomas, Edwards was unarmed
and never threatened to shoot appellant. After the shooting, Thomas drove Edwards to the
hospital.
{¶ 16} On cross-examination, Thomas acknowledged that appellant “pulled up cool”
to Edwards’ house and just asked Thomas to get his daughter. (Tr. Vol. I at 116.) Thomas
further acknowledged that he owned several guns and always carried one with him. He was
not carrying a gun on June 10, 2018 because Edwards, who knew that Thomas owned
several guns, asked him not to bring one with him on their weekend trip. Thomas conceded
that in previous proceedings involving the incident at issue he had never testified that
Edwards requested he not bring a gun with him. He attributed the lack of testimony to the
fact that he had never been questioned about the issue. Thomas also conceded he did not
call 911 after appellant shot Edwards. On redirect examination, Thomas testified he had a
“clean” criminal record and was legally permitted to own a gun.
{¶ 17} Gills Edwards testified she was 14 years old on June 10, 2018. On that date,
she was loading some items into Edwards’ vehicle when appellant pulled up in the front of
the house and requested to take his daughter with him. Edwards told appellant to leave
and the two started arguing. Edwards then emptied his pockets and placed the items on
the ground. Appellant exited his car and Edwards walked toward him with his hands up as
if to say “[y]ou gotta go.” (Tr. Vol. II at 15.) Edwards did not have a weapon and did not No. 23AP-90
threaten appellant. At this point, Gills Edwards did not see a weapon on appellant’s person
or clothing. However, she observed appellant’s arm move as Edwards approached him.
She then heard a gunshot and saw Edwards walking back to the house holding his thigh.
Edwards retrieved a shotgun from the house but did not use it. Edwards, Thomas, and Gills
Edwards drove to the hospital. When they arrived, police were present with guns drawn;
Gills Edwards assumed the police thought they were suspects in the shooting.
{¶ 18} On cross-examination, Gills Edwards testified that Edwards was standing
near the house and appellant was sitting in his car in the street when the two first started
arguing; Edwards did not approach appellant’s car at that time. Edwards eventually
approached appellant’s car; Gills Edwards then got into the back seat of Edwards’ car.
Because the windows were rolled up, she could not really hear what the two men were
saying. She acknowledged that when interviewed by police after the incident, she reported
she did not get a good look at the gun used to shoot Edwards.
{¶ 19} Kathy Garrett testified that she lived on Pine Bluff Road on June 10, 2018.
Prior to that date, she had interacted with Edwards occasionally but did not know him well.
On the day of the incident, Garrett was painting a glider on her front porch when she heard
Edwards and another man (whom she identified at trial as appellant) arguing. Edwards
was standing in his front yard; appellant was sitting in a car. After Edwards told appellant
to leave, appellant drove past her house; however, he eventually backed up and parked in
front of her house. Appellant then exited his car, stood in the middle of the street, and
urged Edwards to come toward him. Garrett did not see a weapon on either Edwards or
appellant. Edwards approached appellant; when he was less than a car length from
appellant, Garrett heard a gunshot and saw that Edwards had been shot. Although she did
not see a weapon in appellant’s hand, she was certain appellant had fired the gunshot. She
heard a man who was with Edwards say “[h]e shot my boy, he shot my boy.” (Tr. Vol. II at
54.) Garrett called 911 to report the shooting. Appellant remained at the scene until police
arrived.
{¶ 20} The state played Garrett’s 911 call for the jury.3 During the 911 call, Garrett
reported her address as 5439 Pine Bluff Road and stated that appellant “shot again.” (Tr.
3 The audio recording of Garrett’s 911 call is part of the record on appeal. (State’s Ex. H1.) The audio recording
was not transcribed. No. 23AP-90
Vol. II at 62.) At trial, she admitted she lied about her address because she was afraid to
provide her real address and that she was mistaken about appellant firing more than one
shot.
{¶ 21} On cross-examination, Garrett reiterated that appellant initially pulled up in
front of Edwards’ house and remained seated in his car. Edwards and another man walked
up to appellant’s car; appellant and Edwards then engaged in a heated argument. Appellant
eventually parked in front of Garrett’s house, got out of his car, and told Edwards to come
toward him. Edwards then walked toward appellant. When he reached the trunk of
appellant’s car, Garrett heard the gunshot and saw Edwards fall.
{¶ 22} Todd A. Cramblett testified he was a patrol officer with the Columbus
Division of Police (“CPD”) on June 10, 2018.4 On that date, he responded to a 911 call of a
shooting on Pine Bluff Road. When Officer Cramblett arrived at the scene, he observed a
man, later identified as appellant, standing by a parked car on the side of the street in front
of a house on Pine Bluff Road. Appellant reported he had discharged a gun during a dispute
and that the gun was inside his car. Officer Cramblett recovered a gun and holster from the
driver’s side door of the car. The victim of the shooting was not at the scene. According to
Officer Cramblett, appellant was non-threatening and cooperative. On cross-examination,
Officer Cramblett reiterated that appellant was cooperative, reported what had happened,
and directed him to the gun inside the car.
{¶ 23} CPD Detective Richard D. Criner, Jr.5 testified that on June 10, 2018 he was
dispatched to the scene as a member of the Crime Scene Search Unit. In that capacity, he
collected and documented evidence recovered from the scene. At trial, Detective Criner
identified numerous photographs taken in connection with the investigation. He also
identified a gun, holster, shell casing, and spent projectile recovered from the scene, CPD
laboratory reports pertaining to examination of the gun, and the 911 call made by Garrett.
{¶ 24} Following the presentation of witness testimony, the state entered into the
record joint stipulations establishing the gun recovered from the scene was operable, the
[SEGMENT 6]
4 Officer Cramblett testified that at the time of trial he was a detective with CPD Major Crimes Bureau. Because
he was a patrol officer at the time of the events at issue here and his testimony relates to that time period, we
shall refer to him as Officer Cramblett.
5 Detective Criner testified he is now retired from CPD. No. 23AP-90
spent projectile was fired from the gun, and that the spent cartridge casing could not be
eliminated as having been fired from the gun.
{¶ 25} At the conclusion of the state’s case, defense counsel moved to dismiss the
felonious assault charge pursuant to Crim.R. 29 contending the state did not meet its
burden of proof. The trial court denied the motion without explanation.
{¶ 26} Thereafter, appellant testified as the sole witness in the defense case.
Appellant stated he had known Edwards for approximately ten years. In 2017, he and
Edwards had an argument which ultimately led to a physical altercation. During the fight,
Edwards punched appellant several times in the face and stomped on him with his steel-
toed work boots. As a result, appellant suffered an orbital fracture.
{¶ 27} Appellant further testified he and Jenkins had a previous relationship and the
two shared parenting duties for their five-year-old daughter. The daughter lived with
Jenkins and Edwards. He and Jenkins typically exchanged their daughter at public
locations.
{¶ 28} On June 10, 2018, appellant, along with his wife and step-daughter, drove to
the Edwards/Jenkins home to see his daughter. As he had done since the incident in 2017,
appellant parked across the street from the house and honked the horn to signal his arrival.
Jenkins’ son walked over to appellant’s car; appellant invited him and the rest of the family
to a cookout he was hosting later that day. After the boy went inside the house, Edwards
and Thomas (whom appellant did not know) came outside and walked up to appellant’s
car. Edwards began cursing at appellant, put his hand inside the car through the open
driver’s window, and told him to leave the neighborhood. Appellant noticed Thomas had a
gun tucked in his waistband underneath his shirt. Thomas became agitated and suggested
to Edwards that the two “shoot this car up.” (Tr. Vol. II at 137.) Appellant believed Thomas’
threat was real. Appellant did not respond verbally; instead, he moved his car
approximately 30 feet down the street. Appellant moved his car again and told his wife to
summon police to check on his daughter. He did not want to leave the area because he was
concerned about his daughter being inside the house while Edwards and Thomas were
exhibiting aggressive behavior.
{¶ 29} Through his rearview mirror, appellant observed Edwards and Thomas
“doing something” in Edwards’ front yard. (Tr. Vol. II at 143.) He then saw Thomas hand No. 23AP-90
“something” to Edwards, after which Edwards ran toward appellant’s car. (Tr. Vol. II at
143.) Appellant felt “[t]hreatened” by Edwards’ action and had to “think quick and do
something.” (Tr. Vol. II at 153.) Worried that Edwards was going to carry through with
Thomas’ suggestion about “shoot[ing] up the car,” appellant retrieved a gun from his car;
he then exited the car because he did not want his family to be shot. (Tr. Vol. II at 144-45,
153.) Appellant observed Edwards “reaching * * * [o]n his waist” for what appellant
believed was a gun. (Tr. Vol. II at 146.) When Edwards got close enough to appellant,
appellant pressed his gun directly against Edwards’ thigh and shot him. Edwards said, “Oh,
shit, you shot me.” (Tr. Vol. II at 146.) Appellant responded, “No shit. If you stick around,
I’m gonna shoot you some more.” (Tr. Vol. II at 146.) Appellant also told Thomas, who was
standing nearby, “If you come closer, I’m gonna shoot you, too.” (Tr. Vol. II at 147.)
{¶ 30} After the shooting, Edwards and Thomas walked away. Appellant called 911.
The defense played appellant’s 911 call for the jury.6 During the call, appellant reported
Edwards approached him while he was sitting in his car and tried to assault him. Appellant
can be heard telling Thomas that he was “still right here.” (Def. Ex. 5.)
{¶ 31} Appellant testified that while he was on the 911 call, he saw Edwards and
Thomas enter Edwards’ house. Soon thereafter, he observed the two men “wrestling” with
a shotgun on the front porch. (Tr. Vol. II at 151.) Eventually, Edwards and Thomas got into
a car and drove away. Police arrived at the scene moments later. Appellant reported what
happened and directed police to the gun inside his car.
{¶ 32} On cross-examination, appellant testified he filed a complaint against
Edwards following the 2017 altercation; however, he did not know whether Edwards was
ever charged. Regarding the incident on June 10, 2018, appellant acknowledged that his
decision to pick up his daughter that day was not in accordance with any court-ordered
visitation schedule. He also acknowledged he did not leave the neighborhood or call 911
when he first saw that Thomas had a gun and he never told police that Thomas had a gun.
He conceded that neither Edwards nor Thomas shot at him. However, he stated that he
“wouldn’t * * * wait for that to happen.” (Tr. Vol. II at 168.) He further conceded that when
6 The audio recording of appellant’s 911 call is part of the record on appeal. (Def. Ex. 5.) The audio recording
was not transcribed. No. 23AP-90
he saw Edwards “running up on” him, he grabbed a gun from between the front seats,7
exited his car with the gun in his hand, and immediately shot Edwards at “[p]oint blank
range” while the gun was pressed against Edwards’ thigh. (Tr. Vol. II at 175-77.) He
acknowledged police found the gun in the driver’s side door of his car.
{¶ 33} As to the 911 call, in response to the state’s suggestion that he did not sound
fearful when he told Thomas he was “right here,” appellant explained that he was afraid
prior to the time he shot Edwards; however, after he shot Edwards, he was no longer afraid
because he believed Edwards and Thomas were no longer threats. (Tr. Vol. II at 167.) He
further stated that telling Thomas he was “right here” was meant to caution Thomas not to
further engage with him because he had a gun.
{¶ 34} On redirect examination, appellant estimated that only a “few seconds”
transpired between the time he saw Edwards running toward his car and when he shot him;
as such, he did not have time to issue warnings or make decisions. (Tr. Vol. II at 188.) As
to the statement on the 911 call that he was “right here,” appellant explained that after he
shot Edwards, he still perceived Thomas to be a threat to him and his family because
Edwards had returned the gun to Thomas and Thomas was “standing there with the gun
making these threats.” (Tr. Vol. II at 189.) Appellant’s comment was intended to caution
Thomas not to make any more “bad choices.” (Tr. Vol. II at 190.)
{¶ 35} At the conclusion of the defense’s case, defense counsel renewed the Crim.R.
29 motion without argument; the trial court summarily denied the motion.
{¶ 36} Following deliberations,8 the jury returned a verdict of guilty on the felonious
assault with firearm specification count. On January 12, 2023, the trial court conducted a
sentencing hearing. The court imposed a 3-year sentence on the felonious assault count, a
mandatory 3-year sentence on the accompanying firearm specification, an 18-month
7 Appellant surmised that his wife dropped the gun and her cell phone between the front seats when she tried
to call police.
8 During deliberations, the jury submitted two questions. The first question asked: “What is the visitation and
custody legal agreement between [appellant], Tamika, and kids?” (Tr. Vol. III at 84-85.) Without objection
from either party, the trial court instructed the jury that it had already received all the evidence in the case.
The second question asked: “If we the jury cannot come to an agreement what are our next steps?” (Tr. Vol. IV
at 4.) At the state’s request and over the objection of defense counsel, the trial court instructed the jury
pursuant to [CITATION]. Approximately two hours after the trial court provided the [CITATION] instruction, the jury indicated that it had reached a verdict. Appellant does not challenge the
[CITATION] instruction on appeal. No. 23AP-90
[SEGMENT 7]
sentence on the improper handling count, and a 12-month sentence on the WUD count.
The court ordered the sentences for felonious assault and firearm specification to run
consecutively to each other and concurrently with the improper handling and WUD counts
and concurrently with his conviction in an unrelated case. The trial court memorialized
appellant’s conviction and sentence in a judgment entry issued January 13, 2023.
II. Assignment of Error
{¶ 37} In a timely appeal, appellant advances a single assignment of error for our
review:
APPELLANT’S CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
OF HIS RIGHT TO DUE PROCESS AS GUARANTEED BY
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.
III. Analysis
{¶ 38} In his sole assignment of error, appellant argues that his conviction for
felonious assault with firearm specification is against the manifest weight of the evidence.
More particularly, appellant argues the state failed to disprove beyond a reasonable doubt
that he was not acting in self-defense or in defense of another when he shot Edwards.
{¶ 39} When presented with a manifest weight challenge, an appellate court sits as
a “thirteenth juror” and may disagree “ ‘with the factfinder’s resolution of the conflicting
testimony.’ ” [CITATION], quoting [CITATION], citing [CITATION]. In making this determination, an appellate court “ ‘review[s] the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.’ ” [CITATION], quoting [CITATION]. “ ‘The discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against the conviction.’ ” Id.,
quoting [CITATION]. Further, reversal of a jury verdict on manifest weight grounds
requires unanimous concurrence of all three judges on the court of appeals panel reviewing
the case. [CITATION], citing Article IV, Section 3(B)(3) of the Ohio Constitution. No. 23AP-90
{¶ 40} Appellant was convicted of felonious assault pursuant to R.C. 2903.11(A)(2),
which provides in part that “[n]o person shall knowingly * * * [c]ause or attempt to cause
physical harm to another * * * by means of a deadly weapon.” Appellant does not dispute
the evidence in the record supports the finding that he committed felonious assault when
he knowingly caused physical harm to Edwards with a deadly weapon. Instead, appellant
argues the jury lost its way in concluding that he did not act in self-defense or defense of
another in committing felonious assault.
{¶ 41} Historically, self-defense has been an affirmative defense, requiring an
accused to prove the elements of self-defense or defense of another9 by a preponderance of
the evidence. [CITATION]. However, effective March 28, 2019, the General Assembly amended
R.C. 2901.05, Ohio’s self-defense statute. R.C. 2901.05(B)(1) now provides in relevant part:
“[a] person is allowed to act in self-defense, [or] defense of another. * * * If, at the trial of a
person who is accused of an offense that involved the person’s use of force against another,
there is evidence presented that tends to support that the accused person used the force in
self-defense [or] defense of another, * * * the prosecution must prove beyond a reasonable
doubt that the accused person did not use the force in self-defense [or] defense of another
* * * as the case may be.”
{¶ 42} Thus, pursuant to R.C. 2901.05(B)(1), an accused no longer bears the burden
of establishing the elements of self-defense or defense of another by a preponderance of the
evidence. [CITATION]. Rather, when an accused presents evidence that tends to support
that the accused used force against another in self-defense or defense of another, the state
must disprove at least one of the elements of self-defense or defense of another beyond a
reasonable doubt. [CITATION]. “The state’s new burden of disproving the defendant’s self-
defense claim beyond a reasonable doubt is subject to a manifest-weight review on appeal.”
[CITATION].
{¶ 43} The elements of a self-defense or defense of another claim differ depending
on whether the accused employed deadly or non-deadly force to defend against their
perceived assailant. [CITATION].
9 Defense of another requires proof of the same elements as self-defense. [CITATION]. No. 23AP-90
There is no doubt that appellant employed deadly force, as he shot Edwards with a
handgun. See [CITATION] (“A gun may inflict
death * * * in the manner for which it was designed by firing a bullet.”); See also [CITATION] (“The use of a gun constitutes the use
of deadly force.”); R.C. 2901.01(A)(2) (defining “[d]eadly force” as “any force that carries a
substantial risk that it will proximately result in the death of any person”). When deadly
force is used, the state must disprove at least one of the following elements of a self-defense
or defense of another claim: (1) the accused was not at fault in creating the situation giving
rise to the affray, (2) the accused had a bona fide belief that he was in imminent danger of
death or great bodily harm and that his only means of escape from such danger was in the
use of such force, and (3) the accused did not violate any duty to retreat or avoid the danger.
Messenger at ¶ 14, citing [CITATION]. To state it in the
affirmative, when deadly force is used, the state must prove beyond a reasonable doubt that
the accused “ ‘(1) was at fault in creating the situation giving rise to the affray, OR (2) did
not have a bona fide belief that he was in imminent danger of death or great bodily harm
for which the use of deadly force was his only means of escape, OR (3) did violate a duty to
retreat or avoid the danger.’ ” (Emphasis sic.) [CITATION], quoting Messenger at ¶ 36, quoting Carney at ¶ 31.
{¶ 44} Regarding the first element of a self-defense/defense of another claim, the
concept that an accused must not be at fault in creating the situation giving rising to the
situation “ ‘is broader than simply not being the immediate aggressor.’ ” [CITATION], quoting [CITATION]. “ ‘A person may not provoke an assault or voluntarily enter
an encounter and then claim a right of self-defense.’ ” Id., quoting Elam at ¶ 14. “[A]
multitude of courts have found that a defendant is at fault in creating the situation giving
rise to the affray * * * when he chooses to confront the victim, chooses to knowingly go to a
place where the victim will be or refuses to move in a direction away from the victim, even
when the defendant’s action was otherwise completely lawful.” [CITATION].
{¶ 45} The second element of a self-defense/defense of another claim employs “a
combined subjective and objective test.” [CITATION].
====== End of Part of Court Ruling ====== No. 23AP-90
The trier of fact “first must consider the defendant’s situation objectively, that is, whether,
considering all of the defendant’s particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack, []he
reasonably believed []he was in imminent danger.” (Emphasis sic.) Id. “Then, if the
objective standard is met, the [trier of fact] must determine if, subjectively, this particular
defendant had an honest belief that []he was in imminent danger.” (Emphasis sic.) Id. at
331.
{¶ 46} One component of the second element entails a showing that “ ‘the defendant
must have used only that force reasonably necessary to repel the attack. That is, he must
not have used excessive force.’ ” Jamii at ¶ 77, quoting [CITATION], ¶ 41, citing [CITATION], ¶ 58. Further, “[i]mplicit in the ‘second element of self-defense, i.e., that the defendant’s
use of deadly force was in “good faith,” is the requirement that the degree of force used was
“warranted” under the circumstances and “proportionate” to the perceived threat.’ ” [CITATION] at ¶ 58, quoting [CITATION], ¶ 31. “Thus,
‘ “[i]f * * * the amount of force used is so disproportionate that it shows an ‘unreasonable
purpose to injure,’ the defense of self-defense is unavailable.” ’ ” Id. at ¶ 58, quoting [CITATION], ¶ 55, quoting [CITATION], ¶ 27, quoting [CITATION]
(Mar. 27, 2001).
{¶ 47} As to the third element of a self-defense/defense of another claim, i.e., the
“duty to retreat” requirement, we note that effective April 6, 2021, the General Assembly
amended R.C. 2901.09 as to that element. R.C. 2901.09(B) provides in relevant part: “For
purposes of any section of the Revised Code that sets forth a criminal offense, a person has
no duty to retreat before using force in self-defense [or] defense of another * * * if that
person is in a place in which the person lawfully has a right to be.” R.C. 2901.09(C) further
provides that “[a] trier of fact shall not consider the possibility of retreat as a factor in
determining whether or not a person who used force in self-defense [or] defense of another No. 23AP-90
[SEGMENT 8]
* * * reasonably believed that the force was necessary to prevent injury, loss, or risk to life
or safety.”10
{¶ 48} Here, the offense occurred on June 10, 2018 and the jury trial commenced on
November 14, 2022. As already noted, the amendments to R.C. 2901.09 were effective
April 6, 2021. Thus, the statute was amended after the offense was committed but prior to
the commencement of trial. On November 15, 2022, the state filed a memorandum of law
opposing retroactive application of R.C. 2901.09 as amended. The trial court and the
parties addressed the issue during discussion of the jury instructions. Reiterating its
argument opposing retroactive application of R.C. 2901.09 as amended, the state requested
a jury instruction that appellant had a duty to retreat. Defense counsel argued that the
amended version of R.C. 2901.09 should be applied retroactively and requested an
instruction that appellant had no duty to retreat. Noting that the retroactivity question is
“still under review,” the trial court opined that the amended version of R.C. 2901.09 should
be applied retroactively; in accordance with that finding, the court instructed the jury that
appellant had no duty to retreat. (Tr. Vol. III at 6.)11 Accordingly, the parties focus on the
first two elements of a self-defense/defense of another claim.
{¶ 49} Before addressing appellant’s specific arguments pertaining to his self-
defense/defense of another claim, we note that “ ‘ “[a] self-defense [or defense of another]
claim is generally an issue of credibility.” ’ ” Jamii at ¶ 78, quoting [CITATION], quoting [CITATION]. “ ‘ “Disputes in credibility for the purposes of evaluating self-
10 The effect of the 2021 amendment to R.C. 2901.09, which is now widely referred to as the “stand your
ground” law, is to expand the “no duty to retreat” exception from the person’s residence or vehicle to any place
where the person is lawfully entitled to be. [CITATION].
11 We note this court referenced the retroactivity issue in a footnote appearing in [CITATION], a case where the defendant both committed and was convicted of a criminal
offense prior to the effective date of amended R.C. 2901.09. There, we agreed with the conclusion reached by
the First District Court of Appeals in [CITATION], that there is
no language in R.C. 2901.09 suggesting that the General Assembly intended the statute to be applied
retroactively. [CITATION]. We further note there is pending litigation in the Supreme Court of Ohio
regarding the retroactivity issue. See [CITATION]. Finally,
we note the state did not file a motion for leave to cross-appeal the trial court’s “no duty to retreat” jury
instruction, presumably because appellant was convicted of the offense. The state makes only a passing
reference to the retroactivity issue in its brief: “Despite the fact that the offense occurred in 2018, the trial
court provided jury instructions that were consistent with the self-defense law as it existed in 2022, the date
of the trial, which included the ‘stand your ground’ part of the law.” (State’s Brief at 9.) No. 23AP-90
defense [or defense of another] are best resolved by the trier of fact.” ’ ” Id., quoting
[CITATION] at ¶ 41, quoting [CITATION], ¶ 24. “ ‘ “It has been held that ‘a conviction is not against the manifest weight of the evidence
because the trier of fact believed the state’s version of events over the defendant’s version’
and rejected the defendant’s claim of self-defense [or defense of another].” ’ ” Id., quoting
[CITATION] at ¶ 41, quoting [CITATION] at ¶ 24, quoting [CITATION], ¶ 49. “ ‘When weighing witness testimony supporting a claim of self-
defense [or defense of another], the trier of fact is “free to believe or disbelieve the testimony
of the witnesses” and “is in the best position to take into account inconsistences, along with
the witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is
credible.” ’ ” Id., quoting [CITATION] at ¶ 41, quoting [CITATION] at ¶ 24, citing [CITATION],
¶ 43.
{¶ 50} Appellant first contends the state did not disprove that he was not at fault in
creating the situation giving rise to his use of deadly force against Edwards. Appellant
maintains the undisputed evidence establishes that Edwards initially confronted him while
he was sitting in his car, appellant moved his car down the street to avoid any confrontation
with Edwards, and Edwards re-initiated the confrontation by approaching his car in a
threatening manner after appellant moved it.
{¶ 51} The state counters that the evidence as to who initiated and/or re-initiated
the confrontation between Edwards and appellant is in dispute. The state maintains
Edwards, Thomas, and Gills Edwards all testified that appellant initiated the confrontation,
and appellant was the only witness who testified that Edwards initiated it. As to re-
initiation, the state highlights the testimony of Edwards, Thomas, and Garrett that
appellant exited his car after parking in front of Garrett’s house and invited Edwards to
fight him.
{¶ 52} As to the initial encounter, Edwards testified that after he refused to bring
appellant’s daughter to him, an argument ensued, resulting in appellant’s threat to shoot
and kill Edwards. Thomas’ testimony generally corroborated that provided by Edwards.
Thomas averred that appellant became angry when Edwards refused appellant’s request to
see his daughter and appellant told his wife that he was going to shoot Edwards. Based on No. 23AP-90
that threat, Thomas thought appellant had a gun and warned Edwards accordingly.
According to Thomas, Edwards never threatened appellant.
{¶ 53} Appellant testified to a different version of the initial encounter. According
to appellant, Edwards began cursing at appellant and put his hand inside the car through
the open driver’s window. Appellant saw that Thomas had a gun under his shirt and heard
him suggest to Edwards that the two shoot up appellant’s car. Appellant then moved his
car down the street to avoid a confrontation with Edwards.
{¶ 54} Regarding re-initiation of the confrontation, Edwards testified that after
appellant moved his car down the street, he parked, got out of the car, exhibited a fighting
posture, and invited Edwards to fight him. Edwards readily acknowledged on cross-
examination that he engaged with appellant because he was upset and wanted to fight him.
Thomas testified that appellant exited his car and yelled and cursed at Edwards. Garrett
testified that after appellant parked his car in front of her house, he got out, stood in the
middle of the street, and urged Edwards to come toward him.
{¶ 55} During his testimony, appellant averred that after the initial encounter with
Edwards, he remained in the area only to ensure his daughter’s safety. He further averred
that after he drove away from Edwards’ home and parked his car, he saw Thomas hand
something to Edwards, after which Edwards ran toward appellant’s car in a threatening
manner.
{¶ 56} Given the conflicting testimony as to who initiated and/or re-initiated the
confrontation between appellant and Edwards, the jury, as the trier of fact in this case, was
best positioned to make determinations about credibility and weight of the testimony.
[CITATION]. As to the initial encounter, the jury could
have credited the testimony offered by Edwards and Thomas that appellant threatened to
shoot Edwards if he did not allow him access to his daughter and discredited appellant’s
testimony that Thomas had a gun and suggested to Edwards that they shoot appellant.
Similarly, as to re-initiation of the encounter, the jury could have credited the testimony
provided by Edwards and Garrett that appellant stood outside his parked car and invited
Edwards to fight him and discredited appellant’s testimony that Edwards ran toward him
in a threatening manner. Based on the state’s evidence, the jury could have reasonably No. 23AP-90
concluded that appellant was at least partially at fault for creating the situation giving rise
to the shooting of Edwards.
{¶ 57} Moreover, even if we were to agree with appellant that the state did not
disprove that he was not at fault in creating the situation giving rise to the shooting of
Edwards, we cannot find the jury clearly lost its way in finding the state disproved that
appellant had a reasonable and honest belief that he or his family were in imminent danger
of death or great bodily harm and the only means of escape from the danger was in the use
of deadly force. As noted above, the state needed only disprove one of the elements of his
self-defense/defense of another claim.
{¶ 58} Appellant argues he reasonably and honestly believed he and his family were
in danger of death or great bodily harm and that the only means of escape from the danger
was by shooting Edwards. In support of his argument, appellant relies on his own
testimony that Thomas had a gun under his shirt and he observed Thomas hand Edwards
what he believed to be that same gun moments before he saw Edwards reach toward his
waist, presumably to retrieve the gun, as he ran toward him. Appellant asserts that “also
present in [his] mind” was his prior altercation with Edwards during which he sustained
serious physical injuries. (Appellant’s Brief at 13.) Further, citing Thomas’ admission that
he owned multiple firearms, appellant challenges the credibility of Thomas’ testimony that
he was not carrying a gun on the day of the incident. Finally, appellant claims that his
actions after the shooting, i.e., calling 911, remaining at the scene, and cooperating with law
enforcement, “are indicative of a man who believed he needed to defend himself.”
(Appellant’s Brief at 14.)
{¶ 59} The state counters the jury was free to disbelieve appellant’s account of the
incident, particularly with regard to his claim that Edwards obtained a gun from Thomas
and then reached toward his waist (presumably to retrieve the gun) as he ran toward
appellant’s car. The state notes the testimony provided by Edwards, Thomas, and Gills
Edwards that neither Thomas nor Edwards had a gun at any point prior to the shooting. In
addition, the state particularly notes the testimony of Garrett, a neutral witness without
familial ties to Edwards, that she did not see a gun on Edwards’ person when he approached
appellant. No. 23AP-90
[SEGMENT 9]
{¶ 60} Under the facts presented at trial, it was within the province of the jury to
credit the testimonies offered by the state’s witnesses that Edwards did not have a gun
during his encounter with appellant and thus conclude that appellant did not have
reasonable grounds for believing there was an imminent threat of death or serious bodily
harm. Consequently, the weight of the evidence presented reflects appellant used deadly
force when he was not faced with deadly force and the degree of force used by appellant was
neither warranted under the circumstances nor proportionate to the perceived threat. See
[CITATION] at ¶ 58.
{¶ 61} Having reviewed the entire record, weighed the evidence and all reasonable
inferences, and considered the credibility of witnesses, we conclude the jury did not lose its
way and create a manifest miscarriage of justice when it found the state disproved beyond
a reasonable doubt appellant’s claim that he acted in self-defense or defense of another
when he committed felonious assault against Edwards.
{¶ 62} Appellant’s single assignment of error is overruled.
IV. Conclusion
{¶ 63} Having overruled appellant’s single assignment of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER & BOGGS, JJ., concur.
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112935
v. :
KATIA CHAPPELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 16, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-666844-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Chadwick Cleveland and Kristin M. Karkutt,
Assistant Prosecuting Attorneys, for appellee.
Russell S. Bensing, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant, Katia Chappell (“Chappell”), appeals her
conviction in the shooting death of Dominique Johnson (“Johnson”) and shooting
of Rebecca Patterson (“Patterson”), which was rendered after a jury trial. For the
reasons that follow, we affirm. In 2022, Chappell was charged in a ten-count indictment with the
following:
Count 1: aggravated murder, an unclassified felony, in violation of
R.C. 2903.01(A), with one- and three-year firearm specifications.
Count 2: murder, an unclassified felony, in violation of
R.C. 2903.02(A), with one- and three-year firearm specifications.
Count 3: murder, an unclassified felony, in violation of
R.C. 2903.02(B), with one- and three-year firearm specifications.
Count 4: attempted murder, a felony of the first degree, in violation of
R.C. 2923.02/2903.02(A), with one- and three-year firearm
specifications.
Count 5: felonious assault, a felony of the second degree, in violation
of R.C. 2903.11(A)(1), with one- and three-year firearm specifications.
Count 6: felonious assault, a felony of the second degree, in violation
of R.C. 2903.11(A)(2), with one- and three-year firearm specifications.
Count 7: felonious assault, a felony of the second degree, in violation
of R.C. 2903.11(A)(1), with one- and three-year firearm specifications.
Count 8: felonious assault, a felony of the second degree, in violation
of R.C. 2903.11(A)(2), with one- and three-year firearm specifications.
Count 9: tampering with evidence, a felony of the third degree, in
violation of R.C. 2921.12(A)(1).
Count 10: carrying a concealed weapon, a felony of the fourth degree,
in violation of R.C. 2923.12(A)(2).
Prior to the start of trial, the state offered Chappell a plea deal, which
would have allowed her to plead guilty to one count of voluntary manslaughter with
a three-year firearm specification, one count of felonious assault, and one count of
tampering with evidence with a possible indefinite sentence of 6–25 years in prison. Chappell rejected the plea offer, and the matter proceeded to a jury trial. At the
conclusion of trial, the jury returned a verdict of guilty on all charges, including
specifications. At her sentencing hearing, the court found that Counts 1, 2, 3, 5, and
6 and then Counts 4, 7, and 8 were allied offenses and therefore merged for
sentencing purposes. The court sentenced Chappell to life without the possibility of
parole for 25 years for merged Counts 1, 2, 3, 5, and 6, with a three-year firearm
specification from Count 1 and a three-year firearm specification from Count 4 to be
served consecutive with and prior to her underlying offenses. The court sentenced
Chappell to 11 years on Count 4 to be served concurrent to the sentences for Count 1
and Count 10 and ordered that she be sentenced to time served on Count 9. Thus,
the court sentenced Chappell to life in prison with parole eligibility after 31 years.
The following evidence was adduced at trial.
Chappell was employed at Springco, an industrial plant in Cleveland,
Ohio. On November 25, 2021, Chappell worked third shift. Springco had an unusual
work environment: employees and their friends, who seemingly could come and go
at will even though they were not employed by the company, would drink alcohol,
smoke marijuana, and have sex while working or visiting the company; these
activities were especially prevalent during third shift. What was not allowed at the
plant, however, were firearms. Witness testimony and exhibits entered into
evidence at trial established that Springco prohibited anyone from carrying firearms
into the building. Despite that rule, it is undisputed that Chappell had a firearm in The provided part of the court ruling contains no court ruling citations that need to be anonymized. Thus, no changes are required. The text will remain as is:
```
her purse, which she admitted she concealed and brought into the plant on the night
of the shooting; according to Chappell, she always carried her gun for protection.
Patterson was also working this night. It was Thanksgiving and
Patterson was drinking; she testified she drank three to six Twisted Teas over the
course of her shift. Patterson and Chappell had a history of not liking each other.
According to Patterson, Chappell had threatened to hit her the night before.
Patterson complained to management that Chappell threatened her. Patterson was
advised to try and stay out of the drama.
Patterson testified that Chappell also did not get along with Johnson.
Johnson used to work at Springco but was fired after a dispute with Chappell about
a man; Chappell had been fired also at one point but was rehired. It was also alleged
that Chappell and her cousin, Alice “Anna” Legg (who did not work at Springco but
was often there), followed Johnson around a Walmart a few months prior to the
shooting. Multiple witnesses, including defense witnesses, testified that Chappell
had a “beef” with Johnson.
The evening of the shooting, Patterson and Chappell were arguing back
and forth during their shift. Legg was visiting her cousin at the plant. According to
Patterson, Legg joined in the arguing by making threats and rolling her eyes.
Patterson repeatedly asked Chappell to leave her alone but Chappell continued to
harass her.
During this time, Patterson was exchanging text messages with
Johnson, describing what was going on. Eventually Patterson asked Johnson to pick
``` her up. Patterson explained that if Chappell was going to bring other people into the
situation, i.e. Legg, then she would too. Johnson replied, via text message, that “if I
pull up, imma shoot that hoe.” Patterson replied that she would “get this whole place
shot up with one phone call. Leave me alone, like stop,” referring to the harassment
by Chappell and Legg.
During her testimony, Patterson clarified that she did not actually
intend to shoot up her place of employment and was not carrying a weapon, but that
she and Johnson were texting in that manner because Chappell would not stop
taunting Patterson and she was irritated and ready to go home.
Johnson drove to Springco and brought along Patterson’s sister,
Barbara. When they arrived, Barbara got out of Johnson’s car and headed inside the
plant to get her sister. Approximately five minutes passed before Patterson and
Barbara walked out of the plant. During this time, Chappell brushed shoulders with
Barbara in an aggressive manner. Barbara and Patterson walked out of the plant at
[SEGMENT 10]
approximately 2:23 a.m. and hurried toward Johnson’s vehicle, which was parked
near Chappell’s vehicle in the plant’s parking lot. Chappell, carrying her purse, and
Legg followed Patterson and Barbara.
What happens next is a matter of dispute; although much of the
outside activity that night was caught on security cameras, the actual shooting was
not. Johnson was seated in the driver’s seat of her car. Patterson testified that she
was trying to get in the back seat of Johnson’s car to allow her sister to have the front
seat, but she was not able to fit into the back seat, so she went to sit in the front seat.
====== End of Court Ruling ====== Barbara, who did not testify at trial, stood outside the car waiting to get in. At this
point, according to Patterson, Chappell approached the car, pulled on the driver’s
side door handle, stated, “[T]his is the b*tch I wanted,” and started shooting.
Chappell unloaded her gun, hitting both Johnson and Patterson multiple times.
Johnson’s car sped off, coming to a stop after hitting a tall chain link fence.
Hason Fischer, a Springco supervisor, testified that he was working
that night and witnessed the shooting. Fischer, who testified for the defense, stated
that Chappell and Johnson had a “previous beef.” [CITATION]. Fischer heard Chappell
tell Johnson to get out of the car, “because of the previous beef they had. She
[Chappell] said: Get out and fight.” [CITATION].
Fischer testified that it was hard to see inside Johnson’s car because
her windows were tinted, but claims he saw three “flashes of light” come from the
inside of Johnson’s car prior to Chappell shooting her gun, testifying, “I know for a
fact three flashes.” [CITATION]. He also testified that Chappell never pulled on the door
handle; however, Chappell’s DNA was later recovered from the driver’s side door
handle.
Legg also testified for the defense. Legg testified that she saw
Patterson push Chappell shortly before the women all went outside. Chappell
pushed Patterson back. Chappell then followed Patterson and her sister outside
with the intent to engage them in a fight; Legg testified that it was Patterson who
taunted Chappell to fight. Based on the part of the court ruling provided, it appears that there are no explicit court ruling citations included in the text. Thus, no replacements are necessary.
The content remains as provided:
According to Legg, it was common for Chappell to carry a firearm for protection, and she kept it either in her car or in her purse. Legg claimed that as they were walking up to Johnson’s car, Johnson was holding a gun “and then two, maybe three seconds later, that’s when the first gunshot went off and glass hit me in the face.” Tr. 738. Legg claimed she heard two gunshots emanate from inside the car and only then, after Johnson shot twice, did Chappell unload her gun into Johnson’s car.
Chappell testified that she had owned the gun used in the shooting for about a year but admitted no one at work knew she carried a gun in her purse; Chappell claimed she had no knowledge of the plant’s no-firearms policy. Workers at the plant kept their belongings on a table at the back of the plant.
Chappell testified she had her gun in her purse when she came to work on November 25, 2021. While at work, Patterson got “amped up * * * like she wanted to fight * * * with me”; Chappell claimed that prior to Patterson getting upset, they had not exchanged any words that evening. Tr. 763-764. As Patterson went to push her, Chappell blocked the push and pushed Patterson, who fell. Fischer tried to break up the argument and sent the women to separate areas of the plant.
Chappell testified she saw Patterson and her sister leaving the building, so she ran after them. She grabbed her purse, which concealed the gun, and brought it outside with her. Chappell testified that she went outside either to fight or to smoke: “I was going to fight. But if I wasn’t going to fight, I was going to go to my vehicle and smoke” and “me and Rebecca [Patterson] were going to fight.” Tr. 766. Chappell claimed that it was Johnson who “pulled up on her” in her car
and, despite the heavy tint on Johnson’s windows, Chappell was able to see that
Johnson had a revolver and was pointing it at Legg. Chappell testified that the
interior lights were on in Johnson’s car, which aided in her ability to see inside the
car.
During cross-examination, Chappell testified that she told Johnson to
“put the gun down and fight.” Tr. 781. She also testified that she was not chasing
Patterson, rather, they were all running the same way. According to Chappell,
Johnson fired two shots before Chappell pulled her gun out of her purse and
returned fire, unloading her gun into Johnson’s car. Chappell testified she shot in
self-defense.
Chappell fired her entire magazine of 13 bullets at Johnson’s car. It
was the first time she had shot that particular gun, “[s]o after the first shot goes off,
the rest are just like automatic. * * * So even when the gun was empty, I [was] still
pulling the trigger, because I didn’t know what was going on.” (Tr. 772). Chappell
and Legg then fled in Chappell’s car, driving past Johnson’s crashed vehicle.
According to Chappell, she threw the handgun in a dumpster near her aunt’s house.
Chappell testified that she was hit by broken glass when Johnson shot
her gun from inside the car. A DNA swab of suspected blood on the steering wheel
of Chappell’s car produced a positive DNA match to Chappell that was 761 septillion
times more probable than a coincidental match to an unrelated person of the same race. She further testified that she did not have a “beef” with Johnson; any prior
disagreement had been “squashed.” Tr. 784-785.
Diane Maurice, Springco’s human resources manager, testified that
the company had been having problems with employees drinking, smoking
marijuana, and having sex during third shift. She testified that even though Johnson
was no longer employed by Springco, the company did not “per se” ban people;
Johnson was therefore allowed on the property so long as she remained in the
parking lot. Chappell worked at Springco through a temporary employment agency.
Maurice testified that all employees, whether they are a direct hire or employed by
a temporary employment company, are notified of the company’s policies and
regulations, which included a prohibition against firearms inside the factory.
Maurice testified that there were signs posted in the lobby, on every bulletin board,
and at the employee entrance that explained or reiterated the no-firearms policy.
All employees were informed of the policy in the employee handbook before they
were hired, including temporary agency employees. One of the posted signs warned
that anyone bringing firearms into the plant would be considered a trespasser and
subject to forfeiture or arrest. Another sign informed employees that “it is illegal to
have under the person’s control, convey, or attempt to convey a deadly weapon or
dangerous ordnance onto these premises. Posted pursuant to the Ohio Revised
Code.”
Johnson was struck by two of the 13 bullets Chappell fired into the car.
The fatal gunshot entered through her left lateral chest, fractured a rib, went through the lung, the heart, and then through the other side of her lung, and exited through
another rib and the skin of the upper right breast. The second gunshot wound went
from the outside to the inside of Johnson’s thigh, hit the femur, and stopped.
Johnson’s skin also had signs of pseudo stippling, caused by the bullet going through
some other object, likely glass, before striking her. Patterson also sustained two
gunshots wounds. She was taken by ambulance to the hospital and released the
same day.
Curtiss Jones, supervisor of the Cuyahoga County Medical Examiner’s
Trace Evidence Unit, testified that he examined Johnson’s clothing and car. Jones
testified that there were at least 13 bullet holes in Johnson’s car, most of them on the
side of her car. Of those 13, five defects were from the driver’s side car window.
According to Jones, two of the bullet holes, labeled I and J, showed a directionality
from the inside of the vehicle to the outside of the vehicle and one of the bullet holes,
marked J, was the first bullet to hit the window. Jones was not able to tell to a degree
of scientific certainty which of the 13 defects was made first; thus, he was unable to
tell if the first bullet came from inside the car or outside the car. Jones was also not
able to confirm the muzzle-to-target distance on any of the defects.
Jones testified that he collected gunshot residue from Johnson’s
hands, and this meant that she either fired a weapon, was in close proximity to the
shooting of a gun, or that there was a transfer of residue from some other surface.
He could not conclusively say that Johnson had shot a gun from inside her car. Detective Cramer (“Det. Cramer”) testified that he interviewed Legg
on December 7. He had a paper copy of a screenshot of the text messages between
[SEGMENT 11]
Patterson and Johnson, which he showed Legg. Det. Cramer inadvertently left them
at Legg’s house; he was later able to retrieve the papers. Shortly thereafter, on
December 13, screenshots of the text messages along with a video of Chappell were
posted on Instagram’s Cleveland Remembrance page, which is an Instagram page
that memorializes people in the area who have died.
On December 14, Chappell left a voicemail for Det. Cramer, who
returned her call, but the call went straight to voicemail. Det. Cramer left a message,
but Chappell never responded or otherwise contacted the police. Chappell was
arrested in early January 2022, approximately six weeks after the shooting.
Assignments of Error
I. The trial court erred in entering a conviction for aggravated murder
as such conviction was based upon insufficient evidence of prior
calculation and design, in violation of defendant’s right to due process
of law as guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitution.
II. The trial court erred in entering convictions for aggravated murder,
murder, and felonious assault, in violation of defendant’s right to due
process of law as guaranteed by the Fifth and Fourteenth Amendments
to the United States Constitution, as being against the manifest weight
of the evidence as to defendant’s right to self-defense.
Law and Analysis
Sufficiency of the Evidence
In her first assignment of error, Chappell contends that her conviction
for aggravated murder was supported by insufficient evidence. “In a sufficiency-of-the-evidence inquiry, the question is whether the
evidence presented, when viewed in a light most favorable to the prosecution, would
allow any rational trier of fact to find the essential elements of the crime beyond a
reasonable doubt.” [CITATION], ¶ 7, citing [CITATION], paragraph
two of the syllabus. When considering the legal sufficiency of the evidence, appellate
courts do not engage in a determination of witness credibility. [CITATION]. Rather, the relevant inquiry is whether the
evidence presented, if believed, is sufficient to support the conviction. [CITATION], ¶ 16, citing [CITATION] (Cook, J., concurring).
“The issue of whether a conviction is supported by sufficient evidence is a question
of law, which we review de novo.” [CITATION], ¶ 6, citing [CITATION] at 386.
In challenging her conviction for aggravated murder, Chappell
contends her conviction was not supported by sufficient evidence because the state
failed to prove that she acted with prior calculation and design.
Chappell was convicted in Count 1 of aggravated murder, in violation
of R.C. 2903.01(A), with one- and three-year firearm specifications. The state’s
theory was that Chappell acted with prior calculation and design when she shot and
killed Johnson. ‘“In reviewing whether evidence is sufficient to establish the prior-
calculation-and-design element of aggravated murder, a court must consider whether the evidence, when viewed in the light most favorable to the prosecution,
supports a finding that [the] defendant acted with advance reasoning and purpose
to kill.”’ [CITATION], quoting [CITATION], ¶ 2 (lead opinion), citing [CITATION], ¶ 18.
“‘Evidence of an act committed on the spur of the moment or after momentary
consideration is not evidence of a premeditated decision or a studied consideration
of the method and the means to cause a death.’” [CITATION], quoting [CITATION] at id.; see also [CITATION], ¶ 26.
“‘There is no bright-line test for determining whether a defendant’s
actions show a premeditated decision or studied consideration to kill — each case
turns on its own facts.’” [CITATION], quoting [CITATION] at ¶ 17. The Ohio Supreme
Court has identified three factors as pertinent, but not dispositive, considerations
for determining whether there was sufficient evidence of prior calculation and
design. [CITATION], citing [CITATION] at id. The three factors are: ‘‘“‘ (1) Did the
accused and victim know each other, and if so, was that relationship strained?
(2) Did the accused give thought or preparation to choosing the murder weapon or
murder site? (3) Was the act drawn out or ‘an almost instantaneous eruption of
events?’’’” [CITATION], quoting [CITATION], quoting [CITATION]. Patterson testified that both she and Johnson had a strained
relationship with Chappell. As to Johnson, Patterson testified that Chappell and
Johnson did not get along and that their strained relationship started over a male
friend; allegedly the man was dating one of Johnson’s friends and was also
simultaneously dating Chappell. Patterson testified that Chappell and Johnson had
had issues for months and both had, at one point, gotten fired from Springco due to
the situation.
Legg also testified as to the strained relationship between Chappell
and Johnson:
Prosecutor: And you know that your cousin and Dominique Johnson
had a strained relationship, right?
Legg: Correct, yeah.
Prosecutor: They didn’t get along with one another, did they?
Legg: I wouldn’t say they didn’t get along. They just didn’t tolerate
each other.
Prosecutor: They didn’t tolerate each other?
Legg: Correct.
Tr. 746.
Fischer, the previously mentioned shift supervisor, testified that
Chappell and Johnson had a “previous beef.” He heard Chappell tell Johnson to get
out of the car and fight, “because of the previous beef they had. She [Chappell] said:
Get out and fight.” The evidence shows that Chappell gave thought to the details of the
murder. After arguing with Patterson, she went and got her purse that concealed a
loaded gun. Chappell chose to take her purse with the gun and pursue Patterson
and Barbara outside to where Johnson was waiting. Chappell then tried to open
Johnson’s car door, saying, “[T]his is the b*tch I want,” before shooting 13 times.
The jury could reasonably infer that with every step Chappell took towards
Johnson’s car, as she pulled her gun from her purse, and finally when she tried to
open the car door, she calculated her plan to kill Johnson.
Finally, we consider whether the shooting was an instantaneous
eruption of events. Less than a minute passed between the time Chappell stepped
out of the building to her shooting at Johnson’s car 13 times. Chappell argues that
the time frame demonstrates that the shooting was an instantaneous eruption of
events. Again, we emphasize there is no established minimum time period within
which a person can form the intent to kill.
The record reflects that at 2:23:53 a.m. one of the security cameras
captured Barbara and Patterson leaving Springco, hurrying towards the direction of
Johnson’s car. Patterson testified that she and her sister were hurrying because they
wanted to get out of there due to “everything that was going on.” Patterson further
testified that Chappell “was not far behind us, leaving out.” At 2:24:03 a.m., the
camera captures Chappell and Legg walking at a rapid pace following Patterson and
her sister. At 2:24:14 a.m., Chappell can be seen reaching into her purse, where her
gun was located. According to Patterson, at 2:24:24 a.m. she was trying to get into Johnson’s car and “it was around this point in time” that Chappell grabbed the
driver’s side door handle. At 2:24:40, Johnson’s car reenters the frame of the
security camera, speeds across the parking lot, and crashes into a fence.
Chappell relies on [CITATION] where the Ohio Supreme Court affirmed a decision from this
court that found insufficient evidence of prior calculation and design when
20 seconds elapsed between the time the defendant move out of security camera
range before shooting the victim. In [CITATION], the defendant murdered the victim in
a bar following an argument. The defendant did not know the victim and the killing
resulted from a spontaneous eruption of events. Id. at ¶ 27.
[CITATION] is distinguishable. The court did not find that the brief 20-
second time span between walking off camera and shooting was dispositive. Rather,
the court focused on facts that the defendant and the victim did not know each other,
that the killing resulted from a spontaneous eruption of events, and the defendant
had not given thought as to the murder site. Id. at ¶ 23.
Here, not only did the defendant and the decedent know each other,
but there was evidence of a strained relationship. Approximately five minutes
elapsed between the time Barbara walked into the plant to get her sister and the time
she and Patterson hurried out of the plant, followed by Chappell. Chappell’s
consideration occurred when she went to get her purse and followed Patterson
outside to fight. In [CITATION], the Ohio Supreme
Court affirmed the aggravated murder convictions of the defendant, who killed his
girlfriend’s two teenaged children. The facts established that the defendant attacked
his girlfriend in their kitchen. During the brief attack, he threatened to kill her
children. When the children came into the room, appellant pushed one of the
children and pinned the child to the floor. The girlfriend interceded and the child
[SEGMENT 12]
was able to get up and call 911. Upset that the child called police, the appellant went
to the bedroom and retrieved a gun. He then shot the two children as they were
running away from the house, firing 13 shots. The defendant estimated that from
the time he left the kitchen to grab the gun to the time he shot the children was 40
seconds. The court held that the defendant’s decision to leave the kitchen to go to
the bedroom to retrieve a loaded gun and then fire 13 shots at the victims’ backs
showed more than a “momentary impulse.” Id. at ¶ 51, citing [CITATION]. The court reasoned that even
if the appellant’s actions took less than a minute, they evinced his “determin[ation]
to complete a specific course of action” and allowed the jury to infer “that he had
adopted a plan to kill.” [CITATION at id., citing [CITATION].
Here, the evidence presented at trial was that Chappell and Johnson
had a previous disagreement and both had been let go from Springco due to the
disagreement. On the night of the shooting, Chappell had a gun in her purse and
admitted to wanting to fight. Before leaving the building to pursue Patterson,
Chappell went and got her purse containing the gun. Chappell then pursued Patterson and her sister, took her gun out of her bag, grabbed the driver’s side door
handle of Johnson’s car, ordered Johnson to get out of the car and fight, and fired
13 shots at the car, killing Johnson.
As mentioned, whether an offender acted with prior calculation and
design turns on the facts of the case; while Walker and Nicholson may be illustrative,
we consider the particularities of this case. Viewing the evidence in a light most
favorable to the state, we find sufficient evidence of the elements of aggravated
murder.
The first assignment of error is overruled.
Self-Defense
In the second assignment of error, Chappell argues that the jury’s
rejection of her claim that she acted in self-defense was against the manifest weight
of the evidence.
When evaluating a claim that a jury verdict is against the manifest
weight of the evidence, “we review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that we must reverse the conviction and order a new
trial.” [CITATION], ¶ 168,
citing [CITATION]. Reversing
a conviction based upon the weight of the evidence should occur “‘only in the
exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins at id., quoting [CITATION]
A self-defense claim includes the following elements:
(1) that the defendant was not at fault in creating the situation giving
rise to the affray; (2) that the defendant had a bona fide belief that he
[or she] was in imminent danger of death or great bodily harm and that
his [or her] only means of escape from such danger was in the use of
such force; and (3) that the defendant did not violate any duty to retreat
or avoid the danger.
[CITATION], quoting [CITATION]
The state need only disprove one of the foregoing elements beyond a
reasonable doubt to carry its burden of persuasion. [CITATION]
In 2019, 2018 Am.Sub.H.B. No. 228 (“H.B. 228”) took effect,
amending Ohio’s self-defense statute. Before the amendments, a defendant
claiming self-defense had the burden of proving the elements of self-defense by a
preponderance of the evidence. [CITATION] A defendant claiming self-
defense now no longer has the burden of proving its elements by a preponderance
of the evidence; under H.B. 228, the burden of proof is as follows:
If, at the trial of a person who is accused of an offense that involved the
person’s use of force against another, there is evidence presented that
tends to support that the accused person used the force in self-defense,
* * * the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense * * *. Nicholson at id., citing R.C. 2901.05(B)(1).
Thus, under the applicable version of the statute, the state’s burden to
prove that Chappell did not act in self-defense was triggered when Chappell
produced legally sufficient evidence of self-defense. Nicholson at id.
At the close of trial, the trial court provided the jury with an
instruction regarding self-defense, which means that the trial court concluded that
Chappell put forward sufficient evidence that she was acting in self-defense when
she shot and killed Johnson. The jury’s guilty verdict means that the state met its
burden of persuading the jury beyond a reasonable doubt that Chappell was not
acting in self-defense when she killed Johnson. As the Ohio Supreme Court
explained, the sufficiency-of-the-evidence standard of review applies to the
defendant’s burden of production and a manifest-weight-of-the-evidence standard
of review applies to the state’s burden of persuasion. [CITATION] at ¶ 26.
Chappell’s challenge relative to self-defense, and the convictions in
general, is whether the state met its burden of persuasion; that is, under a manifest-
weight-of-the evidence review, whether the state met its burden of persuading the
jury beyond a reasonable doubt that she was not acting in defense of herself or Legg
when she fired her gun. Id.
In [CITATION], the Ohio
Supreme Court reaffirmed that a defendant “did not need to present adequate
evidence that every reasonable person would have believed he [or she] was in
imminent danger and that deadly force was necessary,” but rather, the defendant “only needed to present adequate evidence that a reasonable person, under the same
circumstances and with [defendant’s] same subjective beliefs and faculties, would
have believed that he [or she] was in imminent danger and that deadly force was
necessary.” [CITATION]
Under Ohio’s “stand your ground” law, R.C. 2901.09(B), “a person has
no duty to retreat before using force in self-defense, defense of another, or defense
of that person’s residence if that person is in a place in which the person lawfully has
a right to be.” The trial court here instructed the jury as follows:
In determining whether the defendant in using force in self-defense
reasonably believed that the force was necessary to prevent injury, loss,
or risk to life or safety. A person has no duty to retreat before using
force in self-defense if the person was in a place in which she lawfully
had a right to be at the time the person used force. The defendant no
longer had a duty to retreat if she withdrew from the situation and no
longer participated in it, and she then had reasonable grounds to
believe and an honest belief that she was in imminent danger of great
bodily harm, and the only means of escape from that was by the use of
deadly force, even though she was mistaken as to the existence of that
danger.
A person who lawfully is an occupant of her vehicle has no duty to
retreat before using force in self-defense.
However, a person has a duty to retreat if she was at fault for creating
the situation, giving rise to the affray, if she did not have reasonable
grounds to believe and an honest belief that she was in imminent
danger of death or great bodily harm, or that she had a reasonable
means of escape from that danger, other than by use of deadly force.
(Tr. 886-887.) “‘A self-defense claim is generally an issue of credibility.’” [CITATION], quoting [CITATION]. “‘Disputes in
credibility for the purposes of evaluating self-defense are best resolved by the trier
of fact.’” Lawrence at id., quoting [CITATION]. “‘It has been held that “a conviction is not against the manifest
weight of the evidence because the trier of fact believed the state’s version of events
over the defendant’s version” and rejected the defendant’s claim of self-defense.’”
Lawrence at id., quoting [CITATION], quoting [CITATION]. “When weighing witness testimony
supporting a claim of self-defense, the trier of fact is ‘free to believe or disbelieve the
testimony of the witnesses’ and ‘is in the best position to take into account
inconsistencies, along with the witnesses’ manner and demeanor, and determine
whether the witnesses’ testimony is credible.’” Lawrence at id., quoting [CITATION] at
id., citing [CITATION].
Chappell asserts that the evidence at trial supported a claim of self-
defense, arguing that she only pulled out her gun and shot Johnson because Johnson
shot first, and she (Chappell) needed to protect herself and her cousin.
We find Chappell’s argument unpersuasive. The evidence shows that
Patterson and her sister were retreating; they were leaving the building to catch a
ride with Johnson. Chappell pursued them, looking to fight. Chappell caused the
affray between herself and Johnson when she walked outside with her gun in her purse, pulled on Johnson’s door handle, exclaimed, “[T]his is the b*tch I wanted,”
[SEGMENT 13]
and ordered Johnson to get out of the car and fight.
We are similarly unpersuaded by Chappell’s argument that she was in
imminent danger of death or serious bodily harm and that her only option for escape
was to use deadly force. Johnson, Patterson, and Patterson’s sister were actively
trying to leave the plant and go home. Chappell chose to pursue them and prevent
their egress, which would have resulted in the dissipation of any danger that
Chappell may have faced. Chappell was not being pursued or threatened and walked
up to Johnson’s closed car window to engage her. Even though scientific evidence
showed that two shots were fired from inside the car, the jury as the finder of fact
did not believe that Chappell fired in response to those two shots, but that she
murdered Johnson.
Finally, the state claimed that Chappell violated her duty to retreat
when she shot and killed Johnson because she was not lawfully on the premises due
to the concealed firearm. “[A] person has no duty to retreat before using force in
self-defense * * * if that person is in a place in which the person lawfully has a right
to be.” [CITATION], at ¶ 23. Signs posted in the
Springco facility warned employees that they are considered trespassers and are
subject to arrest if they brought firearms onto the property or premises. This no-
firearms policy was conveyed to employees via the employee handbook and all
employees, including those from temporary agencies, were made aware of the policy
upon hire. The plant had multiple signs posted around the facility warning employees of the policy. The jury could consider this evidence when determining
whether Chappell was acting in self-defense.
Considering the above, we hold that the state satisfied its burden of
proving that Chappell was not acting in self-defense when she killed Johnson and
the jury’s decision to reject Chappell’s claim of self-defense was not against the
manifest weight of the evidence.
The second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MICHAEL JOHN RYAN, JUDGE
EILEEN A. GALLAGHER, P.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112958
v. :
PAYTON CAMPBELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 2, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-669815-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jonathan Block, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant Payton Campbell appeals from his judgment of
conviction, which was rendered after a jury trial. After a thorough review of the facts
and pertinent law, we affirm. Procedural and Factual History
In May 2022, appellant was charged in a ten-count indictment.1 Counts
1, 2, and 3 named Bianca Smith as the victim and charged attempted murder in
violation of [CITATION] and [CITATION], felonious assault in violation of
[CITATION], and felonious assault in violation of [CITATION],
respectively, all with one- and three-year firearm specifications.
Counts 4, 5, and 6 named Chane’l Collins (a.k.a. “Auntie Piggy”) as the
victim and charged attempted murder in violation of [CITATION] and [CITATION],
felonious assault in violation of [CITATION], and felonious assault in violation
of [CITATION], respectively, all with one- and three-year firearm
specifications.
Counts 7 and 8 named Quasean Townsend as the victim and charged
felonious assault in violation of [CITATION] and [CITATION], respectively,
both with one- and three-year firearm specifications. The final counts — Counts 9
and 10 — named Fatihah Majid as the victim and charged felonious assault in
violation of [CITATION] and [CITATION], respectively, both with one- and
three-year firearm specifications.
The charges stemmed from an incident that occurred in the early
morning hours of March 26, 2022 outside the Medusa nightclub on St. Clair Avenue
in Cleveland. In addition to physical altercations, the incident included gunfire from
Appellant was charged with codefendants Ty’Juane Finley, a.k.a. “Ty Bri” and
Andre Jackson. There are no court ruling citations present in the provided text that need to be replaced. Therefore, the text remains unchanged.
several weapons; the shooting occurred shortly after 1:00 a.m. At trial, the state
presented 11 witnesses, which included law enforcement, three of the victims (Majid,
Smith, and Collins; Townsend did not testify), and an emergency department nurse
who treated victim Townsend. Appellant testified as well. Much of the incident was
recorded on surveillance cameras and a cell phone video, which were played
numerous times for the jury and admitted into evidence. The following facts were
revealed at trial.
Victim Collins (Auntie Piggy) and codefendant Finley (Ty Bri) were
both rap/hip-hop artists; there was animosity between the two musicians. On the
evening in question, Finley and Collins performed at a concert held in the Cleveland
“Flats,” a neighborhood known for its nightlife. The concert organizers were aware
of the animosity between the two musicians and scheduled their performances so
that they did not have to see each other. Their performances occurred without
incident.
Appellant, an Atlanta resident, was dating Finley and was in Cleveland
to see her perform. An “after-party” was scheduled to take place after the Flats
concert at another club, Medusa. Appellant, who had a CCW license, had a gun that
evening. Appellant testified that, besides Finley, he did not know anyone in
Cleveland, including victim Collins. He did generally know of the “bad blood”
between his girlfriend Finley and victim Collins, however.
Both Finley and Collins had planned to attend the after-party. Finley
and her entourage arrived at Medusa in a white SUV and Collins and her entourage arrived in a black SUV. Appellant got a ride to Medusa with the boyfriend of one of
Finley’s friends. Appellant testified that it was his intention to secure his gun in
Finley’s vehicle before going into Medusa. However, he noticed a commotion upon
exiting the vehicle he came in. Appellant testified that he saw his girlfriend Finley
yelling at a group in a black SUV and he just looked on because “you got to observe
something before you jump into it or get involved.” He thought one of the people
Finley was yelling at may have been Collins (Auntie Piggy) and it was confirmed
when he heard someone say, “Piggy, get out of the car.”
Appellant eventually started walking toward the area of the commotion.
He testified that as he approached, at least three people, including victim Smith and
a “heavier set” male, had guns out, which prompted him to pull his gun out.
However, there was some evidence tending to indicate that no one else had their
guns out until they saw appellant with his gun out.
People in the Finley “camp” and the Collins “camp” were arguing back
and forth. Appellant testified that he initially summed the situation up as “females
arguing” and he did not believe it would escalate any further than an argument. He
believed the “heavy set” man with a gun out was part of Collins’ security detail.
According to victim Collins, on the day of the concert, codefendant
Finley made a comment on social media “Piggy gone [sic] be in somebody grave
yard.” The message was admitted into evidence — the initiating message “thread”
started at 12:24 a.m. Appellant denied knowing anything about the comment; he
testified that he did not follow his girlfriend Finley on social media. The argument soon escalated to a physical confrontation, with
codefendant Finley running over to victim Collins and striking her. Appellant
testified that at the very moment Finley ran toward Collins, he had his back turned
and did not see Finley running; had he seen her he “probably would have grabbed
her.” But his back was turned because he was telling the others to put their guns
away. Appellant testified that at that point he figured “it’s going to be a fight” and
[SEGMENT 14]
he should just “let them get it off [their] chest” because the fight had already started
and he could not stop it.
According to appellant, victim Smith, who was in the Collins camp,
had a gun pointed at codefendant Finley and grabbed Finley’s wig. It was at that
point that appellant’s “antennas went up” and he fired four shots at Smith.
Appellant testified that he shot Smith in defense of his girlfriend, Finley. The video
evidence shows that appellant shot in the direction of the club, where Townsend and
Majid were standing. After being shot, Smith ran away, appellant thought the threat
had abated, and so he started walking away. Appellant testified that his girlfriend
Finley and Collins continued fighting even after he had shot Smith.
Although appellant believed Smith was gone, Smith reappeared and
pointed her gun at him. Appellant, thinking Smith was going to shoot him in
retaliation, shot her again. An eyewitness, who was a friend of Collins, testified that
she never saw Smith point her gun at appellant at any time during the incident. After
appellant shot Smith the second time, Smith got in Collins’ vehicle and appellant
walked across the street. The provided text does not contain any identifiable court ruling citations that need to be replaced. Therefore, no changes are required. The text will remain as follows:
Meanwhile, Finley and Collins and their friends were still engaged in
a fight. Appellant testified that he “wasn’t even paying attention to the fight.”
Appellant believed the shooting part of the incident was over so, as he testified,
“what am I going back over there for?”
The fight eventually ended and those involved dispersed; appellant
saw Finley get in the white SUV she had arrived in. Appellant then saw Collins with
a gun chase after the vehicle Finley was in; Collins fired at the vehicle. Appellant
fired at Collins in an attempt to get her to go back to “her area.” Collins dropped her
gun and everyone, including Collins, ran their own separate ways. Appellant
testified that he heard a series of shots “coming from everywhere” toward him. He
had to “duck and take cover”; he had to “creep” away from the scene. The video
evidence demonstrates that the shots being fired at that time were away from the
door, where victims Townsend and Majid were. Appellant was not injured in the
incident and, although he testified that his girlfriend, Finley, had a “gash on her
head,” she did not seek medical treatment.
Appellant testified that he thought about calling the police, but he did
not because his “adrenalin was rushing” and after he left the scene he really did not
see the point. Instead, he called his lawyer, who told him “not to worry about it,” the
police would contact him. Appellant acknowledged that he learned in his CCW
training that he should inform law enforcement after an incident such as what
occurred here. Victim Smith testified that she arrived at Medusa in the black SUV
with Collins and her entourage. A security person from Medusa told the Collins
group that codefendant Finley was there too and Finley had her “shoes off.”
According to Smith, “shoes off” indicated that Finley was ready to fight. Smith got
out of the vehicle and took her firearm out, in the hope of fending off any
confrontation.
Smith testified that when the physical confrontation ensued, she used
her gun to hit Finley on the top of her head because she was trying to protect Collins,
her friend. Smith then heard gunfire and was unaware that she had been shot. She
attempted to get back into the vehicle to escape the melee and, at that point, she saw
appellant with a gun. According to Smith, appellant told her that he was shooting
at her and that he would continue to do so. Smith testified that she was able to get
back in the vehicle, and appellant continued shooting. Smith denied firing her
weapon at all during the incident. She testified that she was shot in appellant’s first
round of firing, and after that she did not even have her gun anymore — she had
dropped it and never picked it up. She testified, “I was hopping, trying to get back
to the car trying to — constantly getting shot at again.”
Smith was treated for multiple gunshot wounds, including wounds to
her thigh, back, arm and buttocks. Some of the bullet fragments remained in Smith’s
body. Her femur bone was shattered, which necessitated her having to have a rod
placed in her leg; she had to learn how to walk again. Smith identified appellant to
the police as the person who shot her. She did not tell the police that she too had a gun that evening. Smith testified that she did not think it was important because
she never fired her gun.
Victim Collins testified that, upon arriving at Medusa, she initially
remained in the vehicle, but Smith got attacked, so she got out and that was when
she was attacked by Finley and her entourage. Collins testified that Finley told her,
“b****, you about to die.” Collins retrieved a “stun/taser” gun she had and began to
use it on the group. Collins testified that it was at that time that appellant started
shooting. Collins never told the police about the gun she had that evening because
they “never asked.” The portion of the video where Collins had the gun was played
during her testimony. The video appeared to show “flashes” or “clouds of smoke”
coming from the gun; however, Collins maintained that it was a stun/taser gun and
not a “real” gun. Collins admitted that a stun gun does not emit smoke. The video
evidence showed that Collins was not shot until she was in the middle of the street
running toward the vehicle Finley was in; she was not shot when she initially got out
of the vehicle and was involved in the physical altercation.
Collins sustained numerous gunshot wounds, including wounds to
her stomach, back, and arm. She was hospitalized for approximately 25 days, some
of which she was in a comatose state. As of the time of trial, she had had three
surgeries on her arm and anticipated having at least one more.
Victim Majid, a Medusa employee who happened to be outside at the
time of the incident and was caught in the “crosshairs,” testified that she was grazed
by a bullet, but was not sure exactly when or who fired at her. As mentioned, victim Townsend did not testify. However, a nurse who treated him at the main campus of
University Hospital, of Cleveland testified regarding him. The nurse identified
Townsend on a video from a police officer’s body camera. According to the nurse,
Townsend arrived at the hospital via “private vehicle.” He was treated for a gunshot
wound to his foot. The nurse testified that she was not sure where the shooting
occurred. In a portion of one of the videos played during trial, a man can be seen
limping away from the scene and getting into a vehicle that was then driven away.
Law enforcement discovered bullet holes in neighboring businesses
and collected numerous shell casings from the scene. It was determined that the
ammunition came from six different manufacturers.
At the close of both the state and appellant’s cases, appellant made a
Crim.R. 29 motion for judgment of acquittal, which was denied both times.
Appellant requested and was granted a self-defense jury instruction relative to the
crimes with Smith and Collins as the victims (Counts 1-6). The trial court also
instructed the jury on the doctrine of transferred intent as to the counts relative to
Townsend and Majid (Counts 7, 8, 9, and 10). The jury returned guilty verdicts on
the counts and specifications relative to victims Smith (Counts 1-3), Townsend
(Counts 7 and 8), and Majid (Counts 9 and 10). The jury returned not guilty verdicts
on the counts and specifications relative to Collins (Counts 4-6).
The trial court merged counts for the purpose of sentencing and the
state elected to proceed to sentencing on Count 1, attempted murder of Smith, Count
7, felonious assault of Townsend, and Count 9, felonious assault of Majid. The court sentenced appellant to five to seven-and-a-half years on Count 1; five years on Count
7; and five years on Count 9. The sentences on those counts were ordered to be
served concurrently. The trial court further sentenced appellant to the three-year
firearm specifications attendant to the underlying counts and ordered them to be
served consecutively for a nine-year term. The nine-year term on the firearm
specifications was ordered to be served consecutively to the five to seven-and-a-half
years on the sentence for the underlying charges, for an aggregate sentence of 14 to
16.5 years. Appellant now raises the following five assignments of error for our
review:
I. Appellant’s convictions are against the manifest weight of the
evidence because [the] record establishes appellant acted in self-
defense and the convictions are otherwise against the manifest
weight of the evidence.
II. The Court committed plain error by failing to provide a jury
instruction on transferred intent self-defense and appellant’s
Sixth Amendment rights were violated where defense counsel
did not object.
III. The trial court erred when it denied appellant’s motion for
acquittal under Crim.R. 29 because the state failed to present
sufficient evidence to establish beyond a reasonable doubt the
elements necessary to support the convictions.
[SEGMENT 15]
IV. The trial court committed a reversible error by allowing West to
provide testimony identifying Townsend on unauthenticated
body cam[era] footage, Exhibit 19[,] over defense objection and
in violation of appellant’s constitutional rights to due process
and a fair trial.
V. The trial court erred in imposing three consecutive terms for
firearm specifications when the felonies were committed as part
of the same act or transaction. Law and Analysis
For his first assigned error, appellant challenges his convictions as
being against the manifest weight of the evidence. First, he contends that the
evidence established that he acted in self-defense and, second, he contends that the
convictions are generally against the weight of the evidence.
When evaluating a claim that a jury verdict is against the manifest
weight of the evidence, “we review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that we must reverse the conviction and order
a new trial.” [CITATION], ¶ 168, citing [CITATION]. Reversing a conviction based upon the weight of the evidence should occur “‘only in
the exceptional case in which the evidence weighs heavily against the conviction.’”
[CITATION], quoting [CITATION].
The trial court provided the jury with a self-defense instruction on the
counts relative to victims Smith and Collins, which meant that the court determined
that appellant presented sufficient evidence that his act of shooting was done in
defense of himself and Finley. [CITATION], ¶ 26. Now, on appeal, in this assignment of error, appellant’s
challenge relative to self-defense, and the convictions in general, is whether the state met its burden of persuasion; that is, under a manifest-weight-of-the-evidence
review, whether the state met its burden of persuading the jury beyond a reasonable
doubt that appellant was not acting in defense of himself or Finley when he fired his
gun. [CITATION]
The elements of self-defense in a deadly force case are that the
defendant: (1) was not at fault in creating the situation giving rise to the affray, (2)
had a bona fide belief that he or she was in imminent danger of death or great bodily
harm and his or her only means of escape from such danger was in the use of such
force, and (3) did not violate any duty to retreat or avoid the danger. [CITATION]
Under Ohio’s “stand your ground” law, R.C. 2901.09(B), “a person has
no duty to retreat before using force in self-defense, defense of another, or defense
of that person’s residence if that person is in a place in which the person lawfully has
a right to be.” The trial court here instructed the jury that appellant had no duty to
retreat.
“‘A self-defense claim is generally an issue of credibility.’” [CITATION], quoting [CITATION] “‘Disputes in
credibility for the purposes of evaluating self-defense are best resolved by the trier
of fact.’” [CITATION] at id., quoting [CITATION] “‘It has been held that “a conviction is not against the manifest
weight of the evidence because the trier of fact believed the state’s version of events over the defendant’s version” and rejected the defendant’s claim of self-defense.’”
Lawrence at id., quoting Bentley at id., quoting [CITATION] “When weighing witness testimony
supporting a claim of self-defense, the trier of fact is ‘free to believe or disbelieve the
testimony of the witnesses’ and ‘is in the best position to take into account
inconsistencies, along with the witnesses’ manner and demeanor, and determine
whether the witnesses’ testimony is credible.’” Lawrence at id., quoting Bentley at
id., citing [CITATION]
Appellant’s claim of self-defense was relative to victims Smith and
Collins. The jury found appellant not guilty of the charges related to Collins, but
guilty on the charges related to Smith. The result was not incredible.
Appellant contends that Smith was the aggressor in the incident. By
all accounts, and the video evidence, the scene was chaotic. But codefendant Finley
was the one that escalated the incident by running up to Collins’ vehicle and striking
her. And while the evidence does support that Smith used her gun to hit Finley on
the head, it does not support that Smith was the first (if she ever did at all) to fire a
gun. On this record, we are not persuaded by appellant’s contention that Smith was
the aggressor.
In terms of appellant’s contention that he feared for Finley’s life and
there was no time to wait, the jury did not believe him. That was not incredible,
especially given that he was not initially concerned, as he just looked on while the
“females” got it “off their chests.” Further, according to Smith, appellant told her that he was shooting at her and that he would continue to do so. Smith testified that
she was shot in appellant’s first round of firing, and after that she did not even have
her gun anymore — she had dropped it and never picked it up, but that even as she
“was hopping, trying to get back to the car * * * [she was] constantly getting shot at
again.” Moreover, after he fired the first round at Smith, Finley, his girlfriend, was
still entangled in a physical confrontation, but according to appellant he “wasn’t
even paying attention to the fight” and he did not feel the need to protect her then
because he believed the shooting part of the incident was over. The jury could have
considered this evidence as not tending to support appellant’s claim that he was
acting in self-defense.
On this record, the jury’s decision to disbelieve appellant’s claim of
self-defense relative to Smith was not against the manifest weight of the evidence.
We also find that the felonious assault convictions relative to victims
Townsend and Majid were not against the manifest weight of the evidence. Relative
to victim Townsend, appellant contends that the state failed to prove venue; that
issue goes to the sufficiency of the evidence and will be addressed under his
sufficiency assignment of error.
Regarding the convictions relative to Townsend and Majid generally,
appellant contends that because the jury believed his self-defense claim relative to
Collins, “he would not be guilty of any of those bullets [that] accidentally hit
Townsend or Majid based on the transferred intent that would apply to self-
defense.” The doctrine of transferred intent provides that where an individual
is attempting to harm one person and as a result accidentally harms another, the
intent to harm the first person is transferred to the second person and the individual
attempting harm is held criminally liable as if he both intended to harm and did
harm the same person. [CITATION] This court has not definitely held that the doctrine of transferred
intent applies to self-defense claims. See [CITATION] (“it is not clear that the doctrine of transferred intent
applies to self-defense.”). This is not the case to decide whether it applies.
We note the doctrine ensures that a person cannot escape the legal
and moral responsibility of his or her acts simply because the intended victim
escapes harm while an innocent person is injured. [CITATION] Here, although the jury acquitted appellant on the
charges relative to Collins, it found him guilty on the charges relative to Smith. That
is, it did not believe that appellant was acting in self-defense against Smith. It would
negate the purpose of the doctrine to find that, although appellant was found guilty
as to one victim on which his self-defense claim was based, i.e., Smith, he cannot be
found guilty of injury to Townsend and Majid because he was acquitted as to the
other victim on which is self-defense claim was based, i.e., Collins. The evidence
shows that in appellant’s first round of firings, when he hit Smith, his shots were
aimed toward the door of Medusa where Townsend and Majid were standing.
Townsend and Majid were innocent bystanders and, under the theory of transferred intent, appellant cannot escape the harm he accidentally or unintentionally caused
them.
On this record, the first assignment of error is overruled.
For his second assignment of error, appellant challenges the lack of a
jury instruction on the concept of transferred intent of self-defense. According to
appellant, the trial court committed plain error by not giving the instruction and his
trial counsel was ineffective for failing to object.
“On appeal, a party may not assign as error the giving or the failure to
give any instructions unless the party objects before the jury retires to consider its
verdict, stating specifically the matter objected to and the grounds of the objection.”
Crim.R. 30(A). “A party’s failure to object to jury instructions before the jury retires
constitutes a waiver of any claim of error regarding the instructions, absent plain
error.” [CITATION]
Appellate courts apply the doctrine of plain error cautiously and only
under exceptional circumstances to prevent a manifest miscarriage of justice. Id.
“[T]he test for plain error is stringent.” [CITATION] “[T]o prevail under this standard, the defendant must establish
that an error occurred, it was obvious, and it affected his or her substantial rights.”
[CITATION] An
error affects substantial rights only if it changes the outcome of the trial. Id. The
[SEGMENT 16]
defendant carries the burden to establish the existence of plain error. [CITATION] “A criminal defendant has the right to expect that the trial court will
give complete jury instructions on all issues raised by the evidence.” [CITATION]. “[A] trial court
should give a proposed jury instruction if it is a correct statement of the law and is
applicable to the facts of the particular case.” [CITATION], citing [CITATION].
In order to establish a claim of ineffective assistance of counsel,
appellant must demonstrate that counsel’s performance was deficient, and that the
deficient performance prejudiced the defense. [CITATION].
As discussed, it is not definitively established in this district that the
doctrine of transferred intent applies to self-defense. See [CITATION]. But even if the trial court had provided an
instruction on how self-defense applies to the doctrine of transferred intent,
appellant is unable to show that the result of the trial would have been different. The
evidence demonstrated that Townsend and Majid were shot in appellant’s first
round of firings when he shot at Smith. The jury did not find that appellant acted in
self-defense against Smith; as such, it would not have transferred appellant’s alleged
justification for the shooting of Smith to Townsend and Majid. Thus, there was no
plain or reversible error in the trial court’s failure to instruct the jury on how
transferred intent applies to self-defense. See [CITATION]
The second assignment of error is overruled.
In his third assignment of error, appellant challenges his convictions
based on sufficiency of the evidence.
“An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” [CITATION], paragraph two of the syllabus. “The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” Id.
Appellant contends that the state failed to present evidence “to
establish the requisite mental states that [he] acted knowingly or had any purpose
to kill or cause any harm to Smith,” which were necessary for the counts relative to
the counts on which he was convicted.
Smith testified that she was initially unaware that she had been shot.
She attempted to get back into the black SUV to escape the melee and, at that point,
she saw appellant with a gun. Appellant told her that he was shooting at her and
that he would continue to do so. Smith testified that she was able to get back in the
vehicle, and appellant continued shooting. Smith denied firing her weapon at all during the incident. She testified that she was shot in appellant’s first round of
firing, and after that she did not even have her gun anymore — she had dropped it
and never picked it up. She testified, “I was hopping, trying to get back to the car
trying to — constantly getting shot at again.” That evidence was sufficient evidence
to sustain the convictions relative to Smith.
Regarding the convictions for the injuries sustained by Townsend and
Majid, the jury was instructed on the theory of transferred intent. The state
presented sufficient evidence based on that theory. The evidence was sufficient to
demonstrate that appellant intended to or was attempting to cause serious physical
harm to Smith. Townsend and Majid were innocent bystanders who were standing
in the line of appellant’s first firings and were accidentally or unintentionally injured
in the crosshairs.
Further, in regard to Townsend, the state presented sufficient
evidence as to venue. “In any trial, in any court, the party accused shall be allowed
* * * a speedy trial by an impartial jury of the county in which the offense is alleged
to have been committed * * *.” [CITATION] Pursuant to
[CITATION]: “The trial of a criminal case in this state shall be held in a court
* * * in the territory of which the offense or any element of the offense was
committed.”
“In the prosecution of a criminal case, it is not essential that the venue
of the crime be proven in express terms, provided it be established by all the facts
and circumstances in the case, beyond a reasonable doubt, that the crime was committed in the county and state as alleged in the indictment.” [CITATION], syllabus; see also [CITATION], ¶ 22 (8th Dist.), citing [CITATION], ¶ 19; and [CITATION].
Ohio courts, including this court, have found sufficient evidence of venue in
cases where the county and state were not specifically named. See, e.g., [CITATION]; and [CITATION].
Thus, venue may be established by circumstantial evidence. See [CITATION], ¶ 65, citing [CITATION], ¶ 10, 13 (although no
witness testified that the offenses at issue occurred in Franklin County, state
presented sufficient circumstantial evidence as to the location of the crime to
establish venue).
Here, victim Townsend did not testify. A law enforcement official who
arrived on the scene after the incident learned that Townsend had been injured and
was at the hospital. A University Hospitals emergency department nurse who
treated Townsend at the hospital’s main campus testified. The nurse stated that she did not know where Townsend had been when he was shot. Townsend’s medical
records from that treatment, which were admitted into evidence, also did not
indicate where the shooting took place. However, the medical records noted that
Townsend was a bystander as a fight between two women broke out and that he
heard gunshots. Video from the incident demonstrates that the shooting occurred
between 1:05 a.m. and 1:07 a.m. Video evidence also shows a man limping from the
scene, getting into a vehicle, and being driven away. Townsend’s medical records
show that he arrived at the hospital at 1:20 a.m. via “private vehicle” and that he
suffered a gunshot wound to the foot. The jury was able to compare the man limping
at the scene and being driven away in a car to the man who appeared on the officer’s
body camera at the hospital and make reasonable inferences.
On this record, circumstantial evidence provided sufficient evidence
for the jury to conclude that Townsend was shot at Medusa, located in Cleveland,
Cuyahoga County.
In light of the above, appellant’s third assignment of error is
overruled.
Appellant’s fourth assignment of error relates to Townsend and,
specifically, raises a confrontation issue given that he did not testify and the
emergency department nurse testified as to statements he made. Appellant also
challenges the nurse’s identification of Townsend from a police officer’s body
camera video, which he contends was not authenticated. The Confrontation Clause of the Sixth Amendment to the United
States Constitution preserves the right of a criminal defendant “to be confronted
with the witnesses against him [or her].” [CITATION] The Confrontation Clause bars the admission of
“testimonial hearsay” unless the declarant is unavailable and the accused had a prior
opportunity to cross-examine the declarant. Id., citing [CITATION]. Where there is no hearsay,
the testimony does not violate the Confrontation Clause. [CITATION]
Evid.R. 803(4) allows, as an exception to the hearsay rule, the
admission of statements made in order to further medical treatment or diagnosis.
Statements that are admissible under Evid.R. 803(4) are understood to be reliable
because the effectiveness of treatment frequently depends upon the accuracy of the
information related to medical professionals, and such statements are “reasonably
relied on by [medical professionals] in treatment or diagnosis.” [CITATION] Further, medical records are admissible
under the exception to the hearsay rule for records of regularly conducted activity
set forth in Evid.R. 803(6). [CITATION] And in this case, appellant stipulated to the admission
of the medical records.
Upon review, the statements made and injuries documented by the
nurse did not have the primary purpose of being testimonial. Rather, they were made for the purpose of medical diagnosis and treatment. Moreover, appellant
stipulated to the admission of the medical records. On this record, there was no
violation of appellant’s confrontation rights regarding the nurse’s testimony and the
admission of the medical records.
There also was no confrontation issue regarding the nurse’s testimony
identifying Townsend on the police body camera video. No audio was played with
the short video clip; therefore, the video did not implicate any statements made by
Townsend.
Appellant also contends that there was a lack of authentication of the
video. Evid.R. 901 provides for the authentication or identification of evidence prior
to its admissibility. It provides in relevant part that, “the authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” Evid.R. 901(A). “The authentication requirement of Evid.R. 901(A) is a low
threshold that does not require conclusive proof of authenticity, but only sufficient
foundation evidence for the trier of fact to conclude that the evidence is what its
proponent claims it to be.” [CITATION]
The nurse testified that she recognized the place where Townsend was
in the video (University Hospitals’ emergency department), she recognized the
clothing Townsend was wearing at the time he came in, and the video was a fair and accurate representation of Townsend on the morning of the shooting. That
[SEGMENT 17]
testimony was sufficient for authentication.
Moreover, the nurse was the sixth of the state’s 11 witnesses and
testified before victims Smith and Collins. Throughout the entire trial, but especially
during Smith and Collins’ testimonies, video from the scene at Medusa was
repeatedly played. The video evidence depicted a chaotic scene, with numerous
people involved. The nurse’s testimony that she recognized Townsend on the police
body camera video and the clothing he was wearing at the time helped to provide
insight for the jury as to who and where Townsend was at the crime scene.
On this record, there were no confrontation or authentication
violations. The fourth assignment of error is overruled.
For his final assignment of error, appellant contends that the trial
court erred by imposing three consecutive terms for the firearm specifications
because the underlying felonies were committed as part of same act or transaction.
Ordinarily, the trial court is prohibited from imposing more than one
prison term on multiple firearm specifications for felonies committed as part of the
same act or transaction. R.C. 2929.14(B)(1)(b). However, there is an exception to
this general rule. Specifically, the statute provides that:
If an offender is convicted of or pleads guilty to two or more felonies, if
one or more of those felonies are aggravated murder, murder,
attempted aggravated murder, attempted murder, aggravated robbery,
felonious assault, or rape, and if the offender is convicted of or pleads
guilty to a specification of the type described under division (B)(1)(a) of
this section in connection with two or more of the felonies, the
sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted or to which the
offender pleads guilty and, in its discretion, also may impose on the
offender the prison term specified under that division for any or all of
the remaining specifications.
(Emphasis added.) R.C. 2929.14(B)(1)(g).
This court has stated that although the General Assembly did not
include the word “consecutive” in R.C. 2929.14(B)(1)(g), it did, in fact, create an
exception to the general rule that a trial court may not impose multiple sentences on
firearm specifications for crimes committed as part of the same transaction. [CITATION], ¶ 10, citing [CITATION], ¶ 71. The trial court
here imposed consecutive terms on the firearm specifications associated with the
two most serious offenses as it was required to do, and in its discretion, ordered the
third firearm specification to be served consecutive as well. The trial court made
consecutive sentence findings on the record at the sentencing hearing and
incorporated those findings into its sentencing judgment entry.
The fifth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MICHAEL JOHN RYAN, JUDGE
MICHELLE J. SHEEHAN, P.J., and
SEAN C. GALLAGHER, J., CONCUR
[CITATION]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 21AP-330
v. : (C.P.C. No. 21CR-173)
Ashshaheed A. Jamii, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 21, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and
Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for appellant. Argued: George M. Schumann.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Ashshaheed A. Jamii, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas following
a jury trial in which he was found guilty of one count of aggravated robbery, one count of
felony aggravated murder, two counts of murder, and two counts of felony murder. For the
following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On January 13, 2021, appellant was indicted on one count of aggravated
robbery in violation of R.C. 2911.01 (Count 1), one count of felony aggravated murder in
violation of R.C. 2903.01 (Count 2), one count of murder in violation of R.C. 2903.02(A)
(Count 3), and one count of felony murder in violation of R.C. 2903.02(B) (Count 4) arising No. 21AP-330
from the January 6, 2021 robbery and death of Malik S. Amar. In the same indictment,
appellant was charged with one count of murder in violation of R.C. 2903.02(A) (Count 5),
and one count of felony murder in violation R.C. 2903.02(B) (Count 6) arising from the
January 6, 2021 death of David W. Knox. All counts, except the aggravated robbery count,
included three-year firearm specifications under R.C. 2941.145.
{¶ 3} The matter came for trial before a jury in May 2021. Plaintiff-appellee, State
of Ohio, presented the following evidence.
{¶ 4} Fourteen-year-old J.W. testified that on the evening of January 5, 2021, Amar
drove her to visit her friend, Z.C., who was living with appellant. Appellant was the only
person in the apartment when J.W. and Amar arrived. J.W. initially sat in a back bedroom
talking to a friend on her cell phone while she waited for Z.C. to arrive. Amar eventually
asked J.W. to join him and appellant in the living room. During a conversation between
appellant, Amar and J.W., appellant touched J.W.’s upper thigh, “[c]lose to [her] personal
area.” (May 18, 2021 Tr. Vol. I at 43.) Amar grabbed J.W.’s face and told her it was
inappropriate for a grown man to touch her in that way. Appellant accused Amar of calling
him a rapist; Amar denied that was his intent. Thereafter, appellant and Amar left the
apartment for 20-30 minutes. While they were gone, J.W. sent her friend a text message
at 10:26 p.m. that said, “[Z.C.’s] stepdad [appellant] grabbed my leg.” (Tr. Vol. I at 46.)
When Amar and appellant returned, Amar told J.W. he had discussed the touching incident
with appellant and that everything was now fine.
{¶ 5} A short time later, Amar told J.W. he and appellant were leaving the
apartment and that she should accompany them. J.W. initially protested, but after Amar
raised his voice, she agreed to go. The three left in Amar’s car. Amar first drove to an ATM
and then to the apartment of his girlfriend, Shavonne Baker. While appellant, Amar, and
Baker conversed, J.W. excused herself and went into the bathroom. She called her best
friend, told her she did not feel safe because she thought something was about to happen,
and directed her to call police if she did not receive a text message or call from her in the
next 15 minutes. Shortly after J.W. returned from the bathroom, appellant, unprovoked,
took out a gun and pulled back the slide. Baker became upset and ordered everyone to
leave. No. 21AP-330
{¶ 6} Appellant, Amar, and J.W. left Baker’s apartment and returned to Amar’s car.
Amar told appellant he needed to “chill out.” (Tr. Vol. I at 53.) Appellant responded that
he was “messed up in the head right now” and had “a lot going on.” (Tr. Vol. I at 54.) J.W.
then asked Amar when they would be going back to appellant’s apartment; Amar stated he
had to make a couple stops before returning. Amar then drove to an apartment complex
on 5th Avenue; he went inside one of the apartments while J.W. and appellant remained in
the car. Appellant told J.W. he previously lived in the area, knew it was dangerous, and
would call a Lyft to take J.W. home. Appellant also stated, “I know what’s up. I’m not
dumb,” and “[t]hey think I’m stupid.” (Tr. Vol. I at 55.)
{¶ 7} Amar returned to the car 10-15 minutes later accompanied by a man (later
identified as Knox) whom J.W. did not know. Amar told appellant Knox was unable to
drive and asked appellant if he could drive Amar’s car back to appellant’s apartment. After
appellant agreed to do so, Amar stated he and Knox would follow in Knox’s car. J.W. moved
from the back seat to the front passenger seat. Appellant began driving erratically, swerving
in and out of traffic, which scared J.W. J.W. noticed appellant’s gun sitting on the car’s
console. Appellant called someone on his cell phone and asked that person to forgive him.
Appellant passed the phone to J.W.; an unidentified woman asked J.W. what was going on
and why appellant was talking about forgiveness. J.W. told the woman she was Z.C.’s friend
and that she did not know what was happening.
{¶ 8} Soon thereafter, appellant parked Amar’s car; Amar pulled Knox’s car nearby.
J.W. noticed appellant’s gun was missing from the console area. Appellant opened his car
door carrying the gun; Amar exited Knox’s car with his hands up. Appellant pointed the
gun at Amar, stated “Pow, N word,” and shot him. (Tr. Vol. I at 62.) J.W. exited the car
and ran away; she then heard another gunshot. She initially hid behind an abandoned car.
Concluding that her hiding place was not safe because appellant was armed and she was
not, she continued running and eventually hid in some bushes. She observed appellant
“looking around” while driving in circles around the area; he eventually drove away. J.W.
then flagged down a car, reported to the driver that her friend’s stepfather had just killed
two people, and asked the driver to take her home. Upon arriving at home, she told her
father what happened, and he called police. She identified appellant as the shooter from a
photograph provided by police.
[SEGMENT 18]
====== End of Court Ruling ====== No. 21AP-330
{¶ 9} On cross-examination, J.W. averred that she observed Amar drinking alcohol
at appellant’s apartment, but never saw him use cocaine. She further testified she initially
“didn’t think anything of it” when appellant touched her thigh; however, after Amar scolded
appellant for doing so, tensions rose between the two men. J.W. further asserted that Amar
“[got] loud” when she said she did not want to leave appellant’s apartment. (Tr. Vol. I at
82.) She further averred that Amar and appellant met with a man (Knox) at the ATM that
J.W. did not know. She also stated that she, Baker, Amar, and appellant were the only
persons present in Baker’s apartment; Knox was not there. According to J.W., Knox was
quite intoxicated when he left the 5th Avenue apartment, which presumably was the reason
Knox could not drive his car. After driving very fast and erratically, appellant pulled into a
random driveway on Fairwood Avenue and turned off the car. Amar pulled Knox’s car close
to where appellant had parked. Appellant exited the driver’s door with his gun drawn.
Amar walked toward appellant with his hands up. J.W. did not hear appellant warn Amar
not to come near him.
{¶ 10} On redirect examination, J.W. testified that Amar did not have a gun in his
hand when he exited Knox’s vehicle. She also averred that appellant’s erratic driving after
leaving the 5th Avenue apartment complex was not because they were being chased. She
reiterated that appellant was the only person with a gun at Baker’s apartment. On recross-
examination, J.W. testified that Amar gave appellant the keys to his car before entering the
5th Avenue apartment.
{¶ 11} Baker testified that at the time of the events at issue, Amar was her boyfriend;
she knew appellant but did not know J.W. On January 5, 2021, she and Amar had dinner
at her apartment. Amar later received a phone call and left to meet someone. At the time,
Baker did not know who Amar was going to meet; however, she later learned that Amar was
meeting Knox to provide cocaine to him. Amar returned later that evening with appellant
and J.W.; Knox was not with them. Amar told Baker about appellant touching J.W.’s upper
thigh and asked Baker if J.W. could stay with her while he took appellant elsewhere. Baker
refused and told them all to leave. Before leaving, J.W. went into the bathroom; appellant
sat on the couch. According to Baker, appellant’s “attitude and demeanor [were] totally off”
and “[h]is eyes were bloodshot red.” (Tr. Vol. I at 125.) Baker again directed the three
visitors to leave; appellant produced a gun and pulled the slide back, which caused a bullet No. 21AP-330
to eject from the chamber onto the floor. Amar told appellant to put the gun away and left
with appellant and J.W. Amar returned to the apartment briefly, but left after he and Baker
argued about appellant’s actions. Amar again left with appellant and J.W. in Amar’s car.
Baker later learned that appellant had shot and killed Amar. Subsequently, Baker was
interviewed by the police; she told them what had happened at her apartment, provided
them with the bullet that had been ejected from appellant’s gun, and identified appellant
from a photograph provided by police. Baker testified that although Amar sometimes told
people he carried a gun, he did not own a gun, did not have a gun that evening, and did not
threaten appellant.
{¶ 12} On cross-examination, Baker admitted she called 911 because Amar was
unruly, belligerent, and drunk. She also testified that while she did not personally know
Knox, she was aware that Amar sometimes picked up cocaine and provided it to Knox for
his personal use.
{¶ 13} Columbus Division of Police (“CPD”) Officer Jeffrey Lazar testified that he
arrived at the crime scene at approximately 1:30 a.m. on January 6, 2021. Officer Lazar
observed a running vehicle with the gearshift in drive located near a curb in front of a
residence on Fairwood Avenue. The front passenger door was open; a man with a fatal
gunshot wound to the head lay on the driveway near the vehicle. A second man with a fatal
gunshot wound to the head was seated in the driver’s seat; the man had a liquor bottle
between his legs and a baggie of cocaine in his left hand. Officer Lazar’s body-worn camera
captured the crime scene; the video was played for the jury.
{¶ 14} Detective Mark Burghart of the Crime Scene Search Unit (“CSSU”) testified
he and other CSSU personnel took photographs and collected evidence from the crime
scene. Detective Burghart identified CSSU photographs depicting the vehicle, the bodies of
Amar and Knox, two spent shell casings, a black knit cap, appellant’s cell phone, a bottle
of vodka, a baggie of cocaine, and a bloody paper. Detective Burghart also identified
evidence collected from the scene, including the items depicted in the photographs.
State’s exhibits A24-28 depict Knox’s body as it was when CSSU arrived at the scene—slumped over in the
driver’s seat of the vehicle. State’s exhibits A43-47 show Knox’s body after he was removed from the vehicle
and positioned on the street by the coroner. No. 21AP-330
{¶ 15} SWAT Officer Mark Dilello testified he was dispatched to an address on East
Long Street to search for a vehicle reportedly stolen following a homicide. Officer Dilello
located the vehicle, which was unoccupied, in the parking lot of an apartment complex at
the Long Street address. Officer Dilello’s body-worn camera captured the scene; the video
was played for the jury. Following an inventory search, the vehicle was impounded.
{¶ 16} CSSU Detective Nicole Prysock testified that pursuant to a search warrant,
she photographed and collected evidence from the vehicles recovered from Fairwood
Avenue and East Long Street. Detective Prysock took DNA swabs and recovered a live
round of ammunition from the vehicle recovered from East Long Street.
{¶ 17} The parties stipulated that the Montgomery County coroner would testify
Amar died from a gunshot wound to the head and that a Franklin County deputy coroner
would testify that Knox also died from a gunshot wound to the head. The parties further
stipulated that a forensic scientist from the CPD Crime Lab would testify appellant was a
contributor to a DNA mixture recovered from the gear shift of the vehicle found on East
Long Street.
{¶ 18} Detective Lowell Titus, the lead investigator in the case, testified that CSSU
personnel recovered no weapons during the search of the crime scene or the subsequent
processing of the vehicles pursuant to impoundment. Testing of the two shell casings
recovered from the scene revealed both were fired from the same gun. Detective Titus
further testified that during his interview with J.W., she provided details about the events
preceding and including the shooting of Amar and Knox, including identification of
appellant as the shooter. Detective Titus acknowledged that during J.W.’s initial interview
with a patrol officer she was less than forthright about the details of the events preceding
the shooting because that interview was conducted in the presence of her father and she did
not want him to know about her relationship with Z.C. Detective Titus also interviewed
Baker, who confirmed that appellant, Amar, and J.W. were at her apartment prior to the
shooting; Baker also provided the bullet she found in her apartment and identified a
photograph of appellant as the person who ejected the bullet from his gun.
{¶ 19} Detective Titus further testified that once appellant was established as a
suspect in the murders, he filed a warrant for his arrest. Further investigation revealed that
the vehicle found on East Long Street was registered to Amar and that appellant’s driver’s No. 21AP-330
license listed his address on East Long Street. Detective Titus further testified that
following appellant’s arrest, he obtained oral DNA swabs from appellant.
{¶ 20} On cross-examination, Detective Titus averred that CPD issued the warrant
for appellant’s arrest on January 7, 2021; appellant voluntarily surrendered to the Franklin
County Jail on January 8, 2021. He acknowledged there were inconsistencies in J.W.’s
initial police interviews as to the events preceding the shootings and that she did not admit
she provided a false narrative in those interviews until her final police interview in April
2021. Detective Titus further acknowledged CPD’s investigation revealed that both Amar
and Knox had ingested cocaine, no evidence established appellant knew Knox or that he or
J.W. were aware Amar planned to go to Baker’s apartment or to Knox’s 5th Avenue
apartment, and that after leaving Knox’s apartment, Amar provided appellant the keys to
his car and asked him to drive it. Finally, Detective Titus acknowledged that Amar had $400
on his person and Knox had 2.922 grams of cocaine in his hand at the time of their deaths.
{¶ 21} Caleb Worley, a CPD forensic firearms analyst, testified he compared the two
shell casings recovered from the crime scene to each other and the two bullets recovered
from the bodies of Amar and Knox to each other. Based on those comparisons, Worley
concluded the two shell casings had been fired from the same gun and the two bullets had
been fired from the same gun. However, without access to the gun, Worley could not
determine whether the casings and bullets were fired from the same gun.
{¶ 22} Following the state’s presentation of evidence, appellant moved for judgment
of acquittal, pursuant to Crim.R. 29, on the basis that the state failed to sustain its burden
of proof that appellant did not shoot Amar and Knox in self-defense. The trial court denied
appellant’s motion.
{¶ 23} After the state rested its case, appellant presented two witnesses on his behalf
—his mother, Alfrida Turner—and himself. Turner testified she resided on East Long
Street. She received a phone call from appellant just after midnight on January 6, 2021.
During the call, appellant spoke in a calm voice; however, Turner could not understand
what he was saying. Turner also spoke to J.W., who only stated she did not know what was
happening. On cross-examination, Turner indicated that the entire phone call lasted
approximately one minute. No. 21AP-330
[SEGMENT 19]
{¶ 24} Appellant testified that after returning home from work on January 5, 2021,
he drank a couple beers. At the time, Z.C. was living with him because Z.C.’s mother had
kicked him out of her home and he needed somewhere to live. Appellant described his
relationship with Z.C. as “like a stepson,” as appellant shared a child with Z.C.’s mother.
(Tr. Vol. II at 327.) Z.C. told appellant that his cousin, Amar, was bringing Z.C.’s girlfriend,
J.W., to the apartment for a visit. Appellant knew Amar and J.W. through Z.C. and his
mother; he and Amar were “cool” with each other. (Tr. Vol. II at 330.) Appellant directed
Z.C. to go to the store and buy food for his guests.
{¶ 25} Amar and J.W. arrived at appellant’s apartment after Z.C. left for the store.
Amar sat with appellant at the kitchen table; J.W. went into the bedroom. Amar used
cocaine and offered it to appellant; appellant declined. Amar told J.W. to come into the
kitchen and sit at the table. Amar asked appellant to pay him the money Z.C. owed him;
appellant refused to do so. According to appellant, Amar was drunk and belligerent during
this conversation. J.W. was nervous and upset by the interaction between appellant and
Amar; in an effort to console J.W., appellant touched her hand, which was on her knee.
When J.W. pulled her hand away, appellant inadvertently touched her knee.
{¶ 26} Amar accused appellant of touching J.W.’s leg inappropriately. Both J.W.
and appellant denied Amar’s accusation. Amar eventually conceded he was mistaken about
the touching incident. Thereafter, Amar told appellant he had lost his ATM card; he asked
appellant if he could transfer money into appellant’s bank account and then appellant could
withdraw that money from an ATM and give it to Amar. Appellant agreed to this
arrangement. Amar insisted that J.W. accompany them to the ATM. Because he lived in a
high crime area, appellant brought his gun with him for protection.
{¶ 27} Appellant withdrew the money from the ATM and gave it to Amar. At that
point, Knox pulled up next to Amar’s vehicle. Amar exited his vehicle and entered Knox’s
vehicle. Appellant overheard Amar tell Knox about the leg-touching incident with J.W.
Knox leaned forward, glared at appellant, and then leaned back in his seat; Knox’s actions
made appellant uneasy. Amar came back to his car and then drove to Baker’s apartment.
Upon arrival, appellant went into the bathroom. He overheard Amar tell Baker about the
leg-touching incident with J.W., which Amar described to Baker as being sexual in nature.
After appellant exited the bathroom, Amar tried to get appellant to admit that he had No. 21AP-330
touched J.W. inappropriately. Amar walked toward appellant; appellant drew his gun,
pulled back the slide, and told Amar to “chill out.” (Tr. Vol. II at 345.) Appellant drew his
gun because Amar had been drinking, using cocaine, and behaving erratically. According
to appellant, he “didn’t know what [Amar] was capable of doing at that point.” (Tr. Vol. II
at 345.) Amar tried unsuccessfully to take the gun from appellant. Although Amar
indicated he had a gun, he did not produce one. Baker was upset about the confrontation
and ordered appellant, Amar, and J.W. to leave.
{¶ 28} The three left Baker’s apartment in Amar’s car. At that point, appellant
assumed Amar would drive him and J.W. back to appellant’s apartment. Instead, Amar
drove to an apartment complex on 5th Avenue. Upon arrival, Amar parked the car, took
the car keys with him, and went inside one of the apartments. Appellant called for a Lyft to
take him home; he wanted to get out of the area because Amar had been acting strangely
throughout the evening. Appellant particularly noted Amar’s actions in driving to an
unknown location after promising to take appellant home and leaving appellant alone in
the car with J.W. after accusing him of touching her inappropriately.
{¶ 29} A short time later, Amar emerged from the apartment with Knox. At that
point, appellant cancelled the Lyft. Knox walked to his car; Amar walked over to appellant,
gave appellant his car keys, and directed him to drive his car. Appellant initially protested,
but after Amar pushed him toward the car and again ordered him to drive, appellant
acquiesced. Amar told appellant he was not concerned that appellant had a gun because he
had a gun and Knox kept an AR rifle in his car. Appellant believed Amar’s assertions about
the guns. Appellant thought something “fishy [was] going on” because Amar told appellant
that Knox was too drunk to drive; however, Knox entered the driver’s seat of his car while
Amar sat in the passenger seat. Amar informed appellant that he and Knox would follow
him back to appellant’s apartment; after dropping off J.W., the three men would leave
together in Knox’s car.
{¶ 30} Appellant began driving erratically in order to evade Amar and Knox.
Because he believed something bad was going to happen to him, he called his mother, and,
in accordance with the tenets of his religion, asked her forgiveness for past sins he had
committed against her. Appellant then gave J.W. his cell phone and told her to tell his
mother what was happening. Thereafter, believing he had successfully eluded Amar and No. 21AP-330
Knox, appellant pulled the car into a random driveway and shut off the lights and engine.
Immediately thereafter, Knox pulled his car next to the curb close to the driveway. While
the car was still moving, Amar jumped out of the front passenger seat, left the door open,
and ran toward appellant. Appellant exited Amar’s vehicle with his gun drawn and
repeatedly warned Amar not to approach him. When appellant turned away to retrieve his
phone from J.W., Amar ran toward appellant with his right hand by his side and his left
hand extended. When appellant turned around, Amar stated “Nah, fuck that” and
attempted to take appellant’s gun. (Tr. Vol. II at 363.) Recalling Amar’s assertion that both
he and Knox were armed, appellant shot Amar in self-defense.
{¶ 31} After shooting Amar, appellant approached Knox’s vehicle; he realized Knox
could sho0t him through the open passenger door. When he saw Knox appear to reach for
something under the seat, appellant told him to “[f]reeze” and “[s]lowly show me your
hands.” (Tr. Vol. II at 369.) After Knox “raise[d] up real fast,” appellant shot him because
he feared Knox was going to shoot him. (Tr. Vol. II at 369.)
{¶ 32} Appellant denied that Amar exited his vehicle with his hands up. Appellant
tried to escape from Amar and Knox before shooting them; he shot both men because Amar
had repeatedly warned him that they were armed. When he discovered a warrant had been
issued for his arrest, he immediately surrendered to police.
{¶ 33} On cross-examination, appellant admitted he never saw Amar with a gun at
any point during the events at issue. He further acknowledged he was still sitting in the car
with the keys when Amar exited Knox’s vehicle and could have driven away. He also
admitted he left the keys in the car when he exited it to confront Amar and could have driven
away after he shot Amar. Appellant further conceded that after shooting Amar and Knox,
he did not call 911; instead, still armed, he fled the scene in Amar’s car and later threw his
gun in a trash can behind his mother’s house; he threw the gun away because he did not
want to be caught with it. He also admitted he did not surrender to police until he
discovered a warrant had been issued for his arrest. Appellant asserted he was afraid Amar
and Knox were planning to murder him because Amar believed appellant had touched J.W.
inappropriately.
{¶ 34} On redirect examination, appellant averred he did not have sufficient time to
exit the driveway before Amar approached him. He further asserted he did not leave after No. 21AP-330
he shot Amar because Knox was still in his car and appellant had been told by Amar that
both he and Knox were armed. Appellant further testified that he fled the scene after
shooting Amar and Knox because he panicked.
{¶ 35} On recross-examination, appellant reiterated that he never observed Amar or
Knox with a gun. He acknowledged that Knox was facing forward in the car and was not
looking at him when he shot him in the right ear.
{¶ 36} At the close of all the evidence, appellant renewed his Crim.R. 29 motion. The
trial court again denied the motion.
{¶ 37} Following deliberations, the jury returned guilty verdicts on all counts and
firearm specifications.
{¶ 38} In a sentencing entry filed June 17, 2021, the trial court merged Counts 3 and
4 with Count 2 and merged Count 6 with Count 5. The court imposed an indefinite sentence
of 8-12 years on Count 1; a life sentence with parole eligibility after 33 years (including 3
years for the firearm specification) on Count 2; and a life sentence with parole eligibility
after 18 years (including 3 years for the firearm specification) on Count 5. The trial court
ordered the sentences to run consecutively for a total aggregate sentence of life with parole
eligibility after a minimum of 59 years and a maximum of 63 years. Appellant was awarded
161 days of jail-time credit.
{¶ 39} Appellant timely appealed and the matter was fully briefed by the parties. In
his briefing, appellant alleged four assignments of error, the fourth asserting a facial
constitutional challenge to the indeterminate sentencing scheme under R.C. 2967.271, the
Reagan Tokes Act, imposed by the trial court on Count 1. On July 22, 2022, this court sua
sponte stayed the appeal pending the Supreme Court of Ohio’s resolution of [CITATION] and [CITATION]. On July 26, 2023, the Ohio
Supreme Court issued its decision in [CITATION], finding the Reagan Tokes Act
to be constitutional. [CITATION] On August 28,
2023, appellant filed a motion to lift the stay and reactivate the appeal; appellant also filed
a notice of voluntary dismissal of his fourth assignment of error. On August 29, 2023, this
court granted appellant’s motion to lift the stay and reactive the appeal. As appellant has
voluntarily dismissed his fourth assignment of error, this decision will focus on the
remaining three assignments of error set forth below. No. 21AP-330
[SEGMENT 20]
II. Assignments of Error
{¶ 40} Appellant assigns the following three assignments of error for our review:
[I.] The verdicts of guilty as to count one, aggravated robbery,
and count two, felony-aggravated murder, based on
aggravated robbery, and court four, felony-murder, based on
aggravated robbery, are not supported by sufficient evidence.
[II.] The verdicts of guilt as to count one, aggravated robbery,
and count two, felony-aggravated murder, based on
aggravated robbery, and count four, felony-murder, based on
aggravated robbery, are against the manifest weight of the
evidence.
[III.] The verdicts of guilt as to count three and count five,
murder, and as to count four and count six, felony-murder,
based on felonious assault, are against the manifest weight of
the evidence.
III. Analysis
{¶ 41} Appellant’s first and second assignments of error are interrelated and will be
considered together. Under these assignments of error, appellant challenges the sufficiency
and weight of the evidence supporting his convictions on Count 1, aggravated robbery,
Count 2, felony aggravated murder, and Count 4, felony murder.
{¶ 42} “The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different.” [CITATION] Accordingly, we separately set forth the relevant
standards of review.
{¶ 43} “[W]hether the evidence is sufficient as a matter of law to support a
conviction involves a determination of whether the state met its burden of production at
trial.” [CITATION] In a sufficiency challenge, an appellate
court does not weigh the evidence; rather, the court determines “ ‘ “whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.” ’ ”
[CITATION] A reviewing court No. 21AP-330
“essentially assume[s] the state’s witnesses testified truthfully and determine[s] if that
testimony and any other evidence presented at trial satisfies each element of the crime.”
Harris at ¶ 14, citing [CITATION], citing [CITATION]. Thus, evidence is
sufficient to support a conviction where, if believed, that evidence would permit any
rational trier of fact to conclude that the state proved each element of the offense beyond a
reasonable doubt. Harris at ¶ 14, citing [CITATION], citing [CITATION].
{¶ 44} “Whether the evidence is legally sufficient to sustain a verdict is a question of
law.” [CITATION] at 386, citing [CITATION]. “[A] conviction based on legally insufficient
evidence constitutes a denial of due process.” Id., citing [CITATION], citing [CITATION].
“To reverse a judgment of a trial court on the basis that the judgment is not sustained by
sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the
judgment is necessary.” [CITATION] at paragraph three of the syllabus, applying Article IV,
Section 3(B)(3) of the Ohio Constitution.
{¶ 45} In contrast to a sufficiency challenge, a manifest weight claim “attacks the
credibility of the evidence presented and questions whether the state met its burden of
persuasion.” Harris at ¶ 15, citing [CITATION], citing [CITATION], citing [CITATION], citing
[CITATION] at 386-87. Although the evidence may be sufficient to sustain a guilty verdict,
a manifest weight challenge requires a different type of analysis. Harris at ¶ 14, citing [CITATION].
The weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one
side of the issue rather than the other. Id. at ¶ 15, citing [CITATION], citing
[CITATION], citing [CITATION] at 387.
{¶ 46} In considering a manifest weight claim, an appellate court sits as a
“ ‘thirteenth juror’ ” and may disagree “ ‘with the factfinder’s resolution of the conflicting
testimony.’ ” Id. at ¶ 16, quoting [CITATION], citing [CITATION]. In making this
determination, an appellate court “ ‘review[s] the entire record, weighs the evidence and all No. 21AP-330
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ”
[CITATION] at 387, quoting [CITATION].
{¶ 47} Although an appellate court reviews credibility when assessing the manifest
weight of the evidence, the court must be mindful that determinations regarding witness
testimony and the weight of testimony are primarily for the trier of fact. [CITATION] at ¶ 17,
citing [CITATION], paragraph one of the syllabus. This is so
because the trier of fact is best able “ ‘to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’ ” [CITATION] at ¶ 17, quoting [CITATION]. A conviction is not against the manifest weight of the evidence because
the trier of fact believed the state’s version of the events over the appellant’s. [CITATION],
¶ 19. The trier of fact is free to believe or
disbelieve all or any of the testimony provided at trial. [CITATION].
{¶ 48} “ ‘The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.’ ” [CITATION]
at 387, quoting [CITATION]. Further, reversal of a jury verdict on manifest weight
grounds requires unanimous concurrence of all three judges on the court of appeals panel
reviewing the case. [CITATION] at ¶ 18, citing Article IV, Section 3(B)(3) of the Ohio
Constitution; [CITATION],
¶ 2-4, citing [CITATION] at paragraph four of the syllabus.
{¶ 49} Appellant first contends there was insufficient evidence to permit a rational
trier of fact to find the essential elements of aggravated robbery under Count 1 of the
indictment. That count charged appellant with aggravated robbery of Amar in violation of
R.C. 2911.01(A)(1) and/or (3).
{¶ 50} R.C. 2911.01(A) states in part:
No person, in attempting or committing a theft offense as
defined in [R.C. 2913.01] or in fleeing immediately after the
attempt or offense, shall do any of the following: No. 21AP-330
(1) Have a deadly weapon on or about the offender’s person or
under the offender’s control and either display the weapon,
brandish it, indicate that the offender possesses it, or use it;
***
(3) Inflict, or attempt to inflict, serious physical harm on
another.
{¶ 51} [CITATION] defines “[t]heft offense” to include a violation of [CITATION]. Relevant here, [CITATION] state in part:
No person, with purpose to deprive the owner of property * *
* shall knowingly obtain or exert control over * * * the
property * * *:
(1) Without the consent of the owner * * *; [or]
(2) Beyond the scope of the express or implied consent of the
owner * * *[.]
{¶ 52} In challenging his conviction for aggravated robbery, appellant first contends
there was insufficient evidence to prove he committed a theft offense under either [CITATION] prior to killing Amar. Appellant maintains that when Amar left Knox’s
apartment building, he gave appellant the keys to his car and told him to drive it back to
appellant’s apartment while he and Knox followed in Knox’s car. Appellant maintains that
Amar’s open-ended entrustment of his car to him does not support a finding that appellant
exerted control over Amar’s car without his consent or beyond the scope of Amar’s consent
prior to Amar’s murder.
{¶ 53} Although appellant arguably may have had Amar’s initial consent to drive his
car prior to the shooting, appellant clearly acted outside the scope of that consent when he
drove away in Amar’s car after shooting and killing him. The state’s theory of the case was
that appellant committed aggravated robbery by stealing Amar’s car after shooting him.
The state expressed this theory in its opening statement: “We only have the one aggravated
robbery count and that only applies to Malik Amar because after [appellant] shot Malik
Amar in the head, he stole his vehicle; that’s your theft offense.” (Tr. Vol. I at 21.) The state
reiterated this theory in its closing argument: “Count One is Aggravated Robbery. * * *
What we’re talking about is when the Defendant shot and killed [Amar] and then shot and No. 21AP-330
[SEGMENT 21]
killed [Knox], but it’s the shooting of [Amar] and then taking his car. That’s all we’re talking
about here. Okay? He didn’t have permission from a dead man to take his car, okay,
aggravated robbery. * * * The murder was first, leading up to the theft.” (Tr. Vol. III at
507.)
{¶ 54} “ ‘ “Once a person lawfully has control over property with consent, that person
cannot thereafter exert control for a different purpose. That person already has control.
Instead, what changes is whether or not the individual [acted] within the scope of the
consent.” ’ ” (Emphasis omitted.) [CITATION], quoting [CITATION], quoting [CITATION]. “ ‘ “If the individual begins to use the
property for something outside what the owner specifically authorized, the individual has
gone beyond the owner’s consent. The [theft] statute allows for this precise situation in
R.C. 2913.02(A)(2).” ’ ” Id., quoting [CITATION], quoting [CITATION].
{¶ 55} In the present case, the state presented sufficient evidence to prove appellant
committed a theft offense by exerting control over Amar’s car beyond the scope of the
consent provided by Amar. As noted above, J.W. testified that Amar gave appellant the
keys to his car and told him to drive it back to appellant’s apartment. Thus, the scope of
consent provided by Amar was limited to appellant driving the car back to his apartment.
J.W. further testified that after appellant shot Amar, he returned to Amar’s car, drove it
around the area for several minutes and then drove away. Appellant’s flight from the scene
in Amar’s car after shooting him clearly exceeded the scope of consent provided by Amar.
{¶ 56} Appellant next argues the state did not present sufficient evidence to prove
he used a deadly weapon or inflicted serious physical harm in committing the theft offense.
We have already determined that appellant committed a theft offense when he fled the
scene in Amar’s car after shooting and killing him. Appellant’s argument essentially goes
to the issue of whether a criminal defendant “killed before he stole or stole before he killed.”
[CITATION]. The [CITATION] court found that issue to be “of
no consequence.” Id. “ ‘The victim of a robbery, killed just prior to the robber’s carrying
off her property, is nonetheless the victim of an aggravated robbery. The victim need not
be alive at the time of asportation.’ ” Id. at 571-72, quoting [CITATION]. See also [CITATION] (“This court has No. 21AP-330
consistently rejected arguments that no robbery occurred because the murder victim was
already dead at the time of the theft.”).
{¶ 57} Construing the evidence most strongly in favor of the state, there was
sufficient evidence upon which a trier of fact could find that appellant used a deadly weapon
in committing a theft offense and/or that he inflicted serious physical harm while
committing a theft offense. Accordingly, we find no merit to appellant’s sufficiency
challenge to his conviction for aggravated robbery under R.C. 2911.01(A)(1) and/or (3).
{¶ 58} Appellant next contends there was insufficient evidence to permit a rational
trier of fact to find the essential elements of aggravated felony murder under Count 2 of the
indictment. That count charged appellant with purposely causing Amar’s death while
committing aggravated robbery. R.C. 2903.01(B) states in part: “No person shall purposely
cause the death of another * * * while committing * * * aggravated robbery.”
{¶ 59} Similar to his sufficiency challenge to his conviction for aggravated robbery,
appellant argues the evidence was insufficient to support a conviction for felony aggravated
murder because it only arguably showed a theft offense occurring after Amar’s death.
Appellant maintains that a theft offense committed after a homicide does not meet the
requirement set forth in R.C. 2903.01(B) that the homicide must occur “while” an
aggravated robbery is being committed. Ohio law does not support appellant’s position.
{¶ 60} The Supreme Court has held “ ‘the term “while” does not indicate * * * that
the killing must occur at the same instant as the [predicate felony], or that the killing must
have been caused by the [felony].’ ” [CITATION], ¶ 55, quoting [CITATION]. Nor does the law require
“that the felony must have been the motive for the killing.” Id., citing [CITATION]. “Rather, ‘while’ means that ‘the killing must be directly
associated with the [felony] as part of one continuous occurrence.’ ” Id. at ¶ 56, quoting
[CITATION]. Thus, “ ‘the term “while” means that the death must occur as part of acts
leading up to, or occurring during, or immediately subsequent to the [relevant felony].’ ”
Id., quoting [CITATION]. “ ‘The sequence of events’ may be ‘examined in light of time,
place, and causal connection’ to determine whether it ‘amounts to “one continuous
occurrence.” ’ ” Id., quoting [CITATION], quoting [CITATION]. No. 21AP-330
{¶ 61} We have previously noted the evidence in support of his conviction for the
predicate felony of aggravated robbery. Similarly, with respect to felony aggravated
murder, the state presented sufficient evidence, which, if believed, established that
appellant intended to, and did, kill Amar, and then left the scene in Amar’s car. The state’s
evidence established appellant parked Amar’s car on a random residential driveway, exited
the car, and shot and killed Amar as he stood on the driveway. After killing Amar, appellant
returned to Amar’s car and drove away from the scene. When viewed “ ‘in light of time,
place, and causal connection,’ ” the situs and timing of the murder and asportation of
Amar’s car connected the offenses such that the jury reasonably could have found that the
aggravated murder “ ‘occur[red] as part of acts leading up to’ ” the aggravated robbery.
[CITATION].
{¶ 62} Construing the evidence most strongly in favor of the state, there was
sufficient evidence upon which a trier of fact could find appellant purposely caused Amar’s
death while committing aggravated robbery. Accordingly, we find no merit to appellant’s
sufficiency challenge to his conviction for felony aggravated murder under R.C. 2903.01(B).
{¶ 63} Lastly, appellant contends there was insufficient evidence to permit a rational
trier of fact to find the essential elements of felony murder under Count 4 of the indictment.
That count charged appellant with causing Amar’s death as a proximate result of
committing aggravated robbery and/or felonious assault.
{¶ 64} R.C. 2903.02(B) states in part: “No person shall cause the death of another
as a proximate result of the offender’s committing * * * an offense of violence that is a felony
of the first or second degree.” Both aggravated robbery and felonious assault are offenses
of violence. R.C. 2901.11(C)(9). Aggravated robbery is a felony of the first degree. R.C.
2901.11(C). As pertinent here, felonious assault is a felony of the second degree. R.C.
2903.11(A)(2); 2903.11(D)(1).
{¶ 65} Appellant cites [CITATION] for the proposition that “ ‘for criminal conduct to constitute the “proximate cause” of a
result, the conduct must have (1) caused the result, in that but for the conduct the result
would not have occurred, and (2) the result must have been foreseeable.’ ” (Appellant’s
Brief at 37-38, quoting [CITATION].) Appellant contends the predicate felony offense at issue is
aggravated robbery and that such “was not a ‘but for’ cause of [Amar’s] death. The ‘cause’ No. 21AP-330
cannot come after the ‘effect.’ An intent to commit theft formed after the death cannot be
the cause of the death. Further, death could not be the foreseeable result of a theft that had
not yet occurred.” (Appellant’s Brief at 38.)
{¶ 66} We decline to comment on appellant’s general “proximate cause”
proposition, other than to note that appellant’s application of that proposition focuses
exclusively on aggravated robbery. Appellant does not acknowledge that the state charged
appellant with felony murder based on aggravated robbery and/or felonious assault as
alternative predicate felonies.
{¶ 67} Here, the jury instructions set forth aggravated robbery and/or felonious
assault as alternative predicate felonies under Count 4. Thus, the jury could have
determined the relevant predicate felony offense to be felonious assault rather than
aggravated robbery. The felonious assault statute, [CITATION], prohibits a person
from “knowingly” “[c]aus[ing] or attempting to cause physical harm to another * * * by
means of a deadly weapon or dangerous ordnance.” The term “[d]eadly weapon” is defined
as “any instrument, device, or thing capable of inflicting death, and designed or specifically
adapted for use as a weapon, or possessed, carried, or used as a weapon.” [CITATION].
A “[f]irearm” is a “deadly weapon.” [CITATION].
{¶ 68} As previously mentioned, the state provided eyewitness testimony from J.W.
establishing that appellant shot and killed Amar in the driveway of a random residence. In
addition to that eyewitness testimony, the state presented evidence establishing that
responding police officers discovered Amar’s lifeless body on the driveway. The state also
presented evidence from the coroner who examined Amar’s body establishing that Amar’s
death was caused by a gunshot wound to the head. The state’s evidence further established
that a shell casing was recovered from the area near Amar’s body and the bullet that struck
Amar was recovered from his body.
{¶ 69} When viewed in a light most favorable to the state, we find there was
sufficient evidence to convict appellant of felony murder via felonious assault, as the
evidence sufficiently established appellant caused physical harm to Amar by shooting him
with a deadly weapon and that the shooting was the proximate cause of Amar’s death.
Accordingly, we find no merit to appellant’s sufficiency challenge to his conviction for
felony murder under [CITATION]. No. 21AP-330
[SEGMENT 22]
{¶ 70} Appellant also contends his convictions on Counts 1, 2, and 4 were against
the manifest weight of the evidence. Appellant’s manifest weight challenge is based on
essentially the same grounds raised in his sufficiency arguments. Appellant maintains that
the greater weight of the evidence establishes: (1) he did not commit aggravated robbery in
the commission of a theft offense because he had Amar’s consent to drive his car prior to
the shooting, (2) Amar’s death did not occur while an aggravated robbery was being
committed, and (3) Amar’s death was not the proximate result of the commission of
aggravated robbery. We have considered the evidence relevant to these arguments, and,
after reviewing the entire record, we cannot say that the evidence weighs heavily against
appellant’s convictions, that the trier of fact lost its way, or that a manifest miscarriage of
justice has occurred.
{¶ 71} Based on the foregoing, we conclude the state presented sufficient evidence
to support appellant’s convictions on Counts 1, 2, and 4 and that those convictions were
supported by the manifest weight of the evidence.
{¶ 72} Accordingly, appellant’s first and second assignments of error are overruled.
{¶ 73} In his third assignment of error, appellant challenges the weight of the
evidence supporting his convictions on Counts 3, 4, 5, and 6. Counts 3 and 5 charged
appellant with the murders of Amar and Knox, respectively; Counts 4 and 6, respectively,
charged appellant with the felony murders of Amar and Knox with the predicate offense
being felonious assault.
{¶ 74} Murder is prohibited by R.C. 2903.02(A), which states that: “No person shall
purposely cause the death of another.” As already noted, R.C. 2903.02(B) proscribes
murder based on an underlying offense of violence that is a felony of the first- or second-
degree (here, felonious assault). Appellant does not dispute that he purposely shot both
Amar and Knox and that the gunshots caused their deaths. However, at trial, appellant
testified that events preceding the shootings established that he shot and killed Amar and
Knox in self-defense. Based on appellant’s testimony, the trial court instructed the jury on
self-defense.
{¶ 75} The elements of self-defense in a deadly force case are that the defendant:
(1) was not at fault in creating the situation giving rise to the affray, (2) had a bona fide
belief that he was in imminent danger of death or great bodily harm and his only means of No. 21AP-330
escape from such danger was in the use of such force, and (3) did not violate any duty to
retreat or avoid the danger. [CITATION], ¶ 14, citing [CITATION].
{¶ 76} Self-defense is an affirmative defense—not an element of a crime. Id. at ¶ 24.
R.C. 2901.05(B)(1) provides in part:
A person is allowed to act in self-defense * * *. If, at the trial
of a person who is accused of an offense that involved the
person’s use of force against another, there is evidence
presented that tends to support that the accused person used
the force in self-defense * * * the prosecution must prove
beyond a reasonable doubt that the accused person did not
use the force in self-defense * * *.
{¶ 77} Thus, R.C. 2901.05(B)(1) requires the state “ ‘to disprove self-defense by
proving beyond a reasonable doubt that [the defendant] (1) was at fault in creating the
situation giving rise to the affray, OR (2) did not have a bona fide belief that he was in
imminent danger of death or great bodily harm for which the use of deadly force was his
only means of escape, OR (3) did violate a duty to retreat or avoid the danger.’ ” (Emphasis
sic.) [CITATION], quoting [CITATION]. “Under [the second] prong, the
defendant must have used only that force reasonably necessary to repel the attack. That is,
he must not have used excessive force.” [CITATION], citing [CITATION]. Although
“ ‘the burden of proof for the affirmative defense of self-defense has shifted to the state, the
burden of production for all affirmative defenses, including self-defense, remains with the
defendant.’ ” (Emphasis sic.) Id. at ¶ 38, quoting [CITATION], citing [CITATION].
{¶ 78} “ ‘A self-defense claim is generally an issue of credibility.’ ” [CITATION], quoting [CITATION]. “ ‘Disputes in credibility for the purposes of
evaluating self-defense are best resolved by the trier of fact.’ ” Id., quoting [CITATION].
“ ‘It has been held that “a conviction is not against the manifest weight of the evidence
because the trier of fact believed the state’s version of events over the defendant’s version”
and rejected the defendant’s claim of self- No. 21AP-330
defense.’ ” [CITATION], quoting Bentley at ¶ 24, quoting Messenger, [CITATION], at ¶ 49.
“When weighing witness testimony supporting a claim of self-defense, the trier of fact is
‘free to believe or disbelieve the testimony of the witnesses’ and ‘is in the best position to
take into account inconsistencies, along with the witnesses’ manner and demeanor, and
determine whether the witnesses’ testimony is credible.’ ” [CITATION], quoting Bentley at ¶ 24,
citing [CITATION].
{¶ 79} Appellant does not separately address each of the three prongs of a self-
defense claim. Rather, appellant provides the following general narrative, which, we note,
is based on his version of events. Amar acted belligerently toward him over the entire
course of the evening based on his belief that appellant had touched J.W. inappropriately.
While at Baker’s apartment, Amar became so belligerent about the touching incident that
appellant feared for his safety and brandished a firearm as a warning to Amar. Appellant
believed Amar’s assertion that he and Knox were armed, and he told J.W. that he believed
Amar and Knox meant to harm him. Amar’s and Knox’s pursuit of him while he tried to
elude them caused him to call his mother because he thought his life was in danger. After
he pulled Amar’s vehicle into the driveway, Amar approached him and aggressively
attempted to take appellant’s gun despite appellant’s warning to stay back. When Knox
reached for something under the seat of his vehicle, appellant ordered him to freeze; Knox
did not heed appellant’s warning. From this narrative, we glean appellant’s arguments to
be that he was not at fault in creating the situation leading to the deaths of Amar and Knox
and that he had a bona fide belief that he was in imminent danger of death or great bodily
harm for which the use of deadly force was his only means of escape.
{¶ 80} The state separately addresses each element of a self-defense claim. The state
first argues that appellant was at fault in creating the situation giving rise to the deaths of
Amar and Knox. In support, the state cites J.W.’s testimony that after appellant pulled
Amar’s vehicle into the driveway, he exited it with his gun drawn. Amar exited Knox’s
vehicle, unarmed, with his hands up. When Amar walked toward appellant, appellant
stated “Pow, N word” and shot him. As to Knox, the state cites appellant’s own testimony
that Knox was seated in his car, facing forward, when appellant shot him in the side of the
head. The state further references appellant’s testimony that he never observed either
Amar or Knox display a gun. No. 21AP-330
{¶ 81} The state next argues appellant did not have a bona fide belief that he was in
imminent danger of death or great bodily harm for which the use of deadly force was his
only means of escape. In support, the state cites J.W.’s testimony that Amar did not have a
gun in his hand when he approached appellant on the driveway as well as appellant’s
testimony that he never saw Amar or Knox display a weapon. The state further notes the
testimony of CPD personnel that no weapons were recovered from the area near Amar’s
body or from Knox’s car. The state also cites appellant’s testimony that Knox was seated in
his vehicle when appellant shot him.
{¶ 82} Lastly, the state argues appellant violated his duty to retreat and avoid any
danger. In support of this argument, the state observes that after leaving Knox’s apartment
complex in Amar’s car, appellant chose to stop in a random driveway rather than call for
help or drive to a safe location. The state further notes appellant’s testimony that he was
still seated in Amar’s vehicle when Amar exited Knox’s vehicle and could have driven away
at that point; however, he chose to exit Amar’s car and confront Amar with his gun drawn.
{¶ 83} The state also argues that appellant’s own testimony contradicts his
assertions that he was fearful of Amar over the entire course of the evening preceding the
shootings. Specifically, the state cites appellant’s admissions that he voluntarily rode with
Amar to the ATM, to Baker’s residence and to Knox’s apartment, cancelled his Lyft ride,
and agreed to drive Amar’s vehicle for him after leaving Knox’s apartment.
{¶ 84} In addition to the arguments and evidence cited by the state in its brief, we
also note that appellant’s actions after the shootings tend to discredit his testimony.
Appellant drove Amar’s car away from the scene, destroyed evidence by throwing his gun
in a trash can, and did not call police immediately to report that he had shot two men in
self-defense.
{¶ 85} Having reviewed the entire record, weighed the evidence and all reasonable
inferences, and considered the credibility of witnesses, we conclude the jury did not lose its
way and create a manifest miscarriage of justice in finding that the state, beyond a
reasonable doubt, disproved that appellant was not at fault in creating the situation leading
to the shooting deaths of Amar and Knox, that appellant had a bona fide belief he was in
great bodily harm necessitating the use of deadly force, and that appellant did not violate
the duty to retreat or avoid the danger. Accordingly, the manifest weight of the evidence No. 21AP-330
[SEGMENT 23]
supported appellant’s convictions for murder and felony murder with respect to both Amar
and Knox.
{¶ 86} Appellant’s third assignment of error is overruled.
IV. Conclusion
{¶ 87} Having overruled appellant’s three assignments of error, and appellant
having voluntarily dismissed his fourth assignment of error, we hereby affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT, P.J., and MENTEL, J., concur.
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as State v. Lawrrence, 2023-Ohio-3419.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2022-L-110
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
JULIAN K. LAWRENCE,
Trial Court No. 2021 CR 001457
Defendant-Appellant.
OPINION
Decided: September 25, 2023
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, Jennifer A. McGee and Adam M.
Downing, Assistant Prosecutors, Lake County Administration Building, 105 Main Street,
P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Ruth Fischbein-Cohen, 3552 Severn Road, Suite 613, Cleveland Heights, OH 44118
(For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Julian K. Lawrence, appeals from his convictions
and/or sentences for Aggravated Murder, Murder, Felonious Assault, Kidnapping, and
Trafficking in Marijuana, in the Lake County Court of Common Pleas. For the following
reasons, we affirm the judgment of the lower court.
{¶2} On May 20, 2022, Lawrence was indicted by the Lake County Grand Jury
for Aggravated Murder (Count One), in violation of R.C. 2903.01(A); Murder (Count Two),
in violation of R.C. 2903.02(A); Attempted Murder (Count Three), a felony of the first
degree, in violation of R.C. 2903.02(A) and R.C. 2923.02(A); Felonious Assault (Count
Four), a felony of the second degree, in violation of R.C. 2903.11(A)(2); two counts of
Kidnapping (Counts Five and Six), felonies of the first degree, in violation of R.C.
2905.01(A)(3) and (B)(2); and Trafficking in Marijuana (Count Seven), a felony of the fifth
degree, in violation of R.C. 2925.03(A)(1). Each count had firearm specifications under
R.C. 2941.145 and Count Seven also had a firearm specification under R.C. 2941.141.
{¶3} A jury trial was held on September 20 through October 13, 2022. The
following pertinent testimony and evidence were presented:
{¶4} On November 3, 2021, Detective Michael Legg of the Cleveland Division of
Police, was dispatched to the scene of a homicide in Cleveland, where a victim, Malik
Pace, had died from gunshot wounds. No arrests were made in connection with that
homicide.
{¶5} On November 4, 2021, Painesville police officers were dispatched to a call
of a shooting at 55 Grant Street in Painesville around 6:20 p.m. When Patrolman Roberto
Soto arrived at the scene, the Grant Street Apartments, he observed Lawrence standing
in the street. Soto inquired whether everything was alright and Lawrence stated, “I had
to do it. He tried to rob me.” The dash cam video also reflects that Lawrence stated “I
don’t know who this is that tried to rob me.” Lawrence pointed and Soto observed a
vehicle in the parking lot that had struck another one. Soto observed a man, later
identified as Ollie Gipson, in one of the vehicles. Gipson had been shot and was
pronounced dead at the scene. Soto saw a gun in Gipson’s left hand. According to Soto’s
description, it appeared that Gipson did not have a good grip on it, did not have his finger
on the trigger, and the barrel was pointed toward the front of the vehicle. Soto indicated
2
Case No. 2022-L-110
that he told the grand jury “when I saw him, it appeared to me that at one point either he
was trying to use it, or that he tried to do something with it, that’s what I observed.”
{¶6} Brianna Prugel of the Painesville Police Department also responded to the
scene. When she arrived, she observed Lawrence, who had a holster on the inside of
his waistband and a Glock 23 in his possession. When she approached him, he indicated
that he had a CCW license and pointed to his gun. She inquired if he was ok and he said,
“I almost f***in’ died.” Lawrence indicated: “I was walking around in the parking lot and a
car pulled up next to me asking if I had a lighter.” He then stated “I don’t f***in’ know you”
and the man then pulled a gun on him. When asked what happened next, Lawrence
responded, “I don’t know, he pulled a gun on me and I blanked out.” Chelsea Hounshell,
a 911 dispatcher riding along with Prugel, testified that Lawrence stated the car’s window
tint was dark and he could not identify the occupant. Prugel took Lawrence into custody
and he had $108 in his possession at that time, including a $100 bill.
{¶7} Sargeant Josh Rogers indicated that Gipson, known to Rogers from past
criminal involvement, was in the driver’s seat of a Lincoln that had crashed into another
car and was still in drive and running when officers arrived. Discovered in the vehicle
were an empty Glock magazine and a package later confirmed to contain marijuana on
the front driver’s side floorboard. Gipson’s firearm, a Glock, had 11 bullets in the
magazine and one that was chambered. A gun receipt revealed that Gipson’s firearm
and the ammo had been purchased the day of the shooting. According to Detective Don
Ticel, Gipson’s hands were not swabbed for gunshot residue because BCI would not
accept gunshot residue kits from victims of a shooting.
{¶8} Detective Ticel indicated that 14 shell casings were recovered at the scene
3
Case No. 2022-L-110
of the crime in a linear position, with a distance of 63 feet from beginning to end.
Lawrence’s cell phone was recovered in the parking lot “prior to any casings.” The firearm
in Lawrence’s possession had 9 bullets and held 23 rounds with an extended magazine.
{¶9} Ticel described video recordings which showed Lawrence’s and Gipson’s
vehicles driving toward Grant Street around the same time, a few minutes before the
shooting was reported. Surveillance video from a nearby parking lot showed Lawrence
approach the passenger side of Gipson’s vehicle, the brake lights turn on, what Ticel
described as a “muzzle flash,” and the car rolling forward out of frame.
{¶10} Ticel interviewed Lawrence after the incident, who made statements
including: “he pulled a gun on me” and “he tried to rob me,” “maybe I should have just let
him shoot me,” “someone tried to rob me,” and “I had to use my weapon.” Ticel also
interviewed other witnesses with knowledge of the shooting and discovered that two
individuals, Jeffrey Isaacs and Edgar Torres, were in Gipson’s vehicle during the
shooting. He indicated that they were initially not completely honest when being
interviewed but did provide information about the shooting. Pursuant to discussions with
Torres, Ticel recovered gun ammunition and a gun box that had been discarded in a
wooded area on Mentor Avenue. No gun ammo or casings of the type found in Gipson’s
gun and recovered from the woods were found at the scene of the shooting.
{¶11} The witnesses identified by Ticel testified regarding the events on
November 4. Isaacs and Torres were friends with Gipson and also knew Lawrence.
They indicated that they were aware Gipson had possession of dogs that had belonged
to Pace. Isaacs heard rumors that Gipson had killed Pace on November 4. Gipson
indicated to Isaacs that he was aware people were saying he killed Pace.
4
Case No. 2022-L-110
{¶12} Isaacs and Torres were with Gipson on November 4 and went with him to
the gun store where Isaacs’ sister purchased a firearm for Gipson because he was legally
unable to do so. After the gun was purchased, they went to a friend, Porras’, house.
Gipson got out of the vehicle while the men remained inside. Another friend, Robert
Howard, was present at Porras’ home and observed Lawrence and his brother drive past,
and believed they “were looking kinda weird” as they were braking and stopping. He
testified that when Gipson left the home, he seemed scared. Torres and Isaacs indicated
that when Gipson returned to the car, he seemed worried or “mad.”
{¶13} Afterwards, Gipson called Lawrence. Isaacs heard Gipson say he wanted
to “clear his name,” and talk to Lawrence about the rumors he murdered Pace. Torres
indicated that they went to meet Lawrence to buy weed and for Gipson to talk to him
about a “problem they had going on.” Howard testified that he was also aware Gipson
intended to meet up with Lawrence to talk about rumors he killed Pace and did not intend
to rob him. According to the witnesses, although Gipson wanted to meet elsewhere,
Lawrence asked that they meet at Grant Street. At the request of Gipson, Isaacs called
their friend, Jamiroquai Transou, and asked him to meet them there as well. Gipson
called Lawrence a second time and made a deal to buy $100 of marijuana. Isaacs was
sitting in the front passenger seat and Torres in the back seat.
{¶14} According to Isaacs, when they arrived at Grant Street, Gipson had his gun
in his coat pocket. He testified that Gipson racked the gun on the way over and Torres
indicated that Lawrence “put one in the chamber when we got into Grant Street
Apartments.” Gipson told Isaacs to lean his seat back, in case “something get wicked,”
i.e., they began shooting at each other. According to Isaacs, Lawrence approached the
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passenger side, gave Gipson the marijuana, and Gipson gave him $100. Gipson
indicated to Lawrence that he wanted to speak to him in his car. Lawrence asked “what
you all ‘bout to do?” Gipson repeated that he wanted to speak to him in his car and
Lawrence did not respond. According to Isaacs, Lawrence looked mad or frustrated and
asked “are you lacking,” which means a person does not have a gun. Both witnesses
indicated that Gipson then pulled out and showed Lawrence his gun, with the barrel
pointed down and toward the steering wheel. Gipson did not have his finger on the trigger,
did not point the gun toward Lawrence and did not threaten Lawrence. Lawrence then
fired at Gipson. The passenger window was down and Lawrence fired from outside of
the car. Isaacs tried to get into the back seat of the car. He told Gipson to “go” but there
was no response. The car began to move/roll and Lawrence continued shooting while
following the car. While shooting, Lawrence said “you tried to rob me.” Torres indicated
they did not try to rob him and no threats were made.
{¶15} Lawrence then turned the gun on Isaacs but it jammed. Lawrence opened
the door, grabbed Isaacs by the arm, took him out, and said to Isaacs “call the police and
say you robbed me.” He said he would kill Isaacs if he did not call the police. Isaacs
complied and called the police. Transou pulled up and Lawrence told him to leave and
threatened to shoot him. Isaacs then walked away and Torres exited the vehicle, taking
the ammo out of the car. Torres testified that he threw it in bushes at the nearby Salvation
Army. Both Torres and Isaacs indicated that they had initially lied to the police because
they were on probation or bond and were afraid of getting in trouble.
{¶16} Transou testified that he was aware of rumors Gipson had killed Pace. He
got a call from Gipson on November 4, who asked “you think [Lawrence] gonna kill me in
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front of you?” Transou had agreed to meet with Gipson at Lawrence’s house, then
received a text to meet at Grant Street. When he arrived at Grant Street, he saw Gipson’s
car was crashed. He observed Isaacs on the phone and Lawrence pointing a gun at
Isaacs. Lawrence approached and told him to leave.
{¶17} Howard and Aishah Bowler-Dixon, Gipson’s girlfriend, both testified that
they had also heard rumors that Gipson killed Pace prior to the foregoing incident.
Bowler-Dixon explained that Gipson was in possession of dogs that had been owned by
Pace. Gipson told her that one of his friends had taken the dogs. Howard also indicated
that had heard Lawrence make statements about his CCW prior to this incident. Howard
believed Lawrence looked down on others because they didn’t have “that level of * * *
gunmanship,” and made comments about it being a “get out of jail free card.”
{¶18} Detective Vincent Crews of the Painesville Police Department testified
regarding various social media communications reviewed in this matter. Several
Snapchat messages were sent between Lawrence and friends and posted to Facebook
on or around November 3-4, indicating that Lawrence was upset and saddened by Pace’s
death. Lawrence posted a Snapchat message that stated: “They gon feel this pain, big
bro, I promise. * * * I love you @lik gambino1 [Pace]. Wat[c]h over, and guide me through
this world * * * of hate.” A friend sent a response, stating: “I know you broken for your
boy, but stay strong. Don’t get in no s**t over it, and watch your back always.” Lawrence
responded “no, they stole 4 puppies, smh, and it gotta be they been plottin’ on him. But
yeah, I’m f***ed up over this.” Records also indicated that Gipson had called Lawrence
on Snapchat two times just prior to the time of the shooting. Messages between Gipson
and Pace were also presented, which contained discussions between the two regarding
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Gipson’s desire to get dogs from Pace.
{¶19} Curtiss Jones, Cuyahoga County Regional Forensic Science Laboratory
supervisor of trace evidence, examined Gipson’s vehicle. He indicated that there were
several spent bullets in the front of the vehicle. He determined that the bullets went
through the passenger’s side “window door area” and the driver’s side door. He indicated
they either went through an open passenger’s door or window. Jones examined Gipson’s
clothing and was able to determine that at least some of the bullets were fired from at
least four to five feet away. He observed six bullet entrance holes on the coat, four on
his pants, and two on a head covering.
{¶20} Dr. Antoine Wrice testified that Gipson had 13 bullet entrance wounds and
died from “gunshot wounds of the head, trunk, and extremities with brain, visceral and
skeletal injuries.”
{¶21} Raymond Jorz of the Lake County Crime Laboratory examined the 14 spent
casings recovered from the scene and determined they were all fired from Lawrence’s
gun. Nothing was submitted that was fired from Gipson’s firearm. Some fragments
recovered from the vehicle and Gipson’s body could also be traced back to the type of
ammunition submitted with Lawrence’s firearm.
{¶22} For the defense, Lawrence testified that he knew Gipson through his
nephew. He sometimes sold Gipson and his friends marijuana. Lawrence indicated that
on November 3, his friend, Pace, was killed, but he did not hear any rumors about who
killed him and had no animosity against Gipson.
{¶23} On November 4, Gipson called to purchase marijuana from Lawrence and
requested to meet at the Grant Street Apartments. When Lawrence arrived at the
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apartments, his car was smoking and he planned to walk home to get his AAA card. At
that time, a vehicle pulled up and he could not tell who the driver was due to the dark tint
on the windows. The vehicle stopped and the window was rolled down a little. He then
heard the driver ask for a lighter and Lawrence stated that he did not have one. The
driver then rolled down the window more and he was able to recognize Gipson. Gipson
gave him money and, as Lawrence was reaching for the marijuana, he heard, “don’t
move, give me your money or I’m gonna shoot you.” Lawrence saw Gipson point a gun
toward his face and he froze. He then threw the marijuana inside of the car. He grabbed
his own gun and pointed it at Gipson and Gipson extended his gun more toward his face.
Lawrence believed that his life was in danger and Gipson would shoot him. Lawrence
began shooting. He ran toward the parking lot exit and the car was following him so he
continued to shoot. He described that the car was accelerating. He began to “shoot and
* * * duck” and continued firing since the gun was still pointed at him and the car was
moving.
{¶24} Lawrence testified that he did not point his gun at or threaten Isaacs, who
got out of the car on his own and ran away. He testified that he had a CCW and was
familiar with how to utilize a firearm. He denied asking Gipson if he was “lacking.”
Lawrence remained at the scene until the police arrived.
{¶25} The jury acquitted Lawrence of Attempted Murder but found him guilty of all
other counts as charged in the indictment as well as the accompanying firearm
specifications.
{¶26} A sentencing hearing was held on October 26, 2022. The court merged the
offense of Murder into Aggravated Murder and merged Felonious Assault and the second
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count of Kidnapping with the first count of Kidnapping. Defense counsel emphasized
Lawrence’s lack of a criminal record. The court found: “The evidence was that this was
in retaliation for a perceptive wrongdoing on the part of the deceased, and actually the
Court does consider it to be an execution.” It sentenced Lawrence to serve a prison term
of thirty years to life in prison on Count One, with a mandatory prison term of three years
in prison for the Firearm Specification; a term of eight to twelve years in prison on Count
Five, with a term of three years for the Firearm Specification; and one year on Count
Seven. The two firearm specifications were ordered to be served consecutive to each
other and the other offenses. Counts One and Five were ordered to be served
consecutively with each other and concurrent with the sentence on Count Seven for a
total term of 44 to 48 years to life. This sentence was memorialized in an October 27,
2022 Judgment Entry.
{¶27} Lawrence timely appeals and raises the following assignments of error:
{¶28} “[1.] Whether It Was Error To Convict Defendant And Not To Consider Self
Defense.
{¶29} “[2.] It Was Error To Sentence Appellant Separately As This Case Involves
Allied Offenses Of Similar Import.
{¶30} “[3.] The Sentence Was Against The Sufficiency of The Evidence And The
Manifest Weight Of The Evidence.
{¶31} “[4.] The Sentence Was Void Since It Violated The Law Which Favors
Concurrent Sentences.”
{¶32} In his first assignment of error, Lawrence argues it was error to determine
that he did not commit the shooting in self-defense since the facts demonstrated he shot
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only after Gipson pulled his firearm. Similarly, in his third assignment, he argues that he
did not have intent or motive to kill Gipson and that the killing was the result of self-
defense. Since these issues are interrelated, we will consider them jointly.
{¶33} Initially, we observe that, under the first assignment of error, Lawrence
states that this court may reverse if it “clearly and convincingly finds error,” citing to R.C.
2953.08(G)(2). That statute applies to the review of a trial court’s sentence and is
unrelated to the defendant’s convictions and defenses to those convictions. Here, the
issue is whether the convictions were supported by the weight and sufficiency of the
evidence presented and whether the claim of self-defense precluded his convictions.
{¶34} In reviewing the sufficiency of the evidence, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶35} Whereas “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the
evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence
is more persuasive—the state’s or the defendant’s?” Id. An appellate court must
consider all the evidence in the record, the reasonable inferences, the credibility of the
witnesses, and whether, “in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
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and a new trial ordered.” (Citation omitted.) Thompkins at 387. “Since there must be
sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction is
supported by the weight of the evidence necessarily must include a finding of sufficiency.’”
(Citation omitted.) State v. Heald, 11th Dist. Lake Nos. 2021-L-111 and 2021-L-112,
2022-Ohio-2282, ¶ 19.
{¶36} Pursuant to R.C. 2901.05(A), “[t]he burden of going forward with the
evidence of an affirmative defense, and the burden of proof, by a preponderance of the
evidence, for an affirmative defense other than self-defense, defense of another, or
defense of the accused’s residence presented as described in division (B)(1) of this
section, is upon the accused.” Division (B)(1) provides that a person may act in self-
defense and states: “If, at the trial of a person who is accused of an offense that involved
the person's use of force against another, there is evidence presented that tends to
support that the accused person used the force in self-defense * * * the prosecution must
prove beyond a reasonable doubt that the accused person did not use the force in self-
defense * * *.” R.C. 2901.05 “places the burden of persuasion upon the State to disprove
at least one of the elements of self-defense beyond a reasonable doubt.” State v. Corey,
11th Dist. Geauga No. 2021-G-0029, 2022-Ohio-4568, ¶ 104.
{¶37} The elements of a valid claim of self-defense have been found to include:
“(1) the defendant was not at fault in creating the situation giving rise to the affray (2) the
defendant had a bona fide belief that he or she was in imminent danger of death or great
bodily harm and that his or her only means of escape from such danger was in the use of
such force; and (3) the defendant did not violate any duty to retreat or avoid the danger.”
State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). Effective April 6, 2021,
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R.C. 2901.09(B) altered the law on the duty to retreat, providing that “a person has no
duty to retreat before using force in self-defense, * * * if that person is in a place in which
the person lawfully has a right to be.”
{¶38} Lawrence’s claim that his convictions, particularly for Aggravated Murder
were not supported by the weight or sufficiency of the evidence, turns on his argument
that the jury should have found he acted in self-defense.
{¶39} The evidence presented supported the jury’s rejection of the claim of self-
defense. In particular, it supports a determination that Lawrence did not have a bona fide
belief that he was in danger of great bodily harm necessitating the use of deadly force.
Two witnesses present in the vehicle stated that Gipson did not threaten Lawrence or
point a gun at him and only showed that he had a gun when asked by Lawrence.
{¶40} Lawrence argues that self-defense was supported by the record because
Gipson arranged the meeting to clear his name of the killing of Pace, and that Gipson
was a “known murderer” who “gunned down Mr. Pace in the front yard, in the middle of
the day.” While it is correct that Gipson sought the meeting with Lawrence, the evidence
does not demonstrate he had a plan to harm Lawrence when they met. Further,
references to Gipson as a “known murderer” of Pace are inappropriate when he was not
charged or convicted with such offense. Nonetheless, it is accurate that rumors
associated Gipson with the crime. Lawrence questions: “What motive could Julian
Lawrence have had to kill Ollie Gipson?” His question is answered by his own repeated
arguments that Gipson was a “murderer.” There is no question that there were rumors
about Gipson having killed Pace and that Lawrence was upset over Pace’s death. While
Lawrence asserts this as grounds for the fact that he committed self-defense and that
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Gipson was violent, it also provides potential motivation to murder Gipson.
{¶41} While Lawrence concludes self-defense occurred by referencing his own
testimony that Gipson threatened to shoot him, Isaacs’ and Torres’ testimony directly
refutes this. They indicated that Gipson did nothing to provoke the shooting, he showed
his gun to Lawrence only upon being asked if he had a weapon, and did not point the gun
toward Lawrence or display it in a threatening manner. They testified that no robbery
occurred. “A self-defense claim is generally an issue of credibility.” State v. Olsen, 11th
Dist. Ashtabula No. 2022-A-0071, 2023-Ohio-2254, ¶ 57. “Disputes in credibility for the
purposes of evaluating self-defense are best resolved by the trier of fact.” State v.
Bentley, 2023-Ohio-1792, __ N.E.3d __, ¶ 24 (11th Dist.). “It has been held that ‘a
conviction is not against the manifest weight of the evidence because the trier of fact
believed the state's version of events over the defendant’s version’ and rejected the
defendant’s claim of self-defense.” Id., citing State v. Messenger, 2021-Ohio-2044, 174
N.E.3d 425, ¶ 49 (10th Dist.). When weighing witness testimony supporting a claim of
self-defense, the trier of fact is “free to believe or disbelieve the testimony of the
witnesses” and “is in the best position to take into account inconsistencies, along with the
witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is
credible.” Bentley at ¶ 24, citing State v. Haney, 11th Dist. Lake No. 2012-L-098, 2013-
Ohio-2823, ¶ 43. It is evident here that the jury chose to believe the testimony of Isaacs
and Torres and we will not second-guess that determination.
{¶42} There is further evidence to support the testimony of Isaacs and Torres and
contradict Lawrence’s claim of self-defense. Although Lawrence stated he was in fear for
his life, he continued to walk with the car as it was rolling/moving forward rather than
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turning in the opposite direction. He fired 14 shots into the vehicle with the casings
spanning 63 feet in the direction the car moved after Lawrence began shooting. 13 of
these shots hit Gipson and none hit the other two men present in the vehicle. Lawrence
initially told police he did not know who the person was that he had shot, which was untrue
and inconsistent with his testimony. By presenting the testimony of Isaacs and Torres
as well as demonstrating conflicts in Lawrence’s testimony, the State satisfied its burden
of persuasion to disprove at least one of the elements of self-defense.
{¶43} Lawrence makes much of the fact that Gipson arrived to their meeting in a
car with tinted windows. Having tinted windows is not evidence of committing a crime,
nor is it uncommon, particularly among drug users or sellers.
{¶44} Having found that the evidence supported the jury’s rejection of Lawrence’s
claim of self-defense, the manifest weight of the evidence, and thus, sufficient evidence,
supports his conviction for Aggravated Murder. To convict Lawrence of Aggravated
Murder, the State was required to prove, beyond a reasonable doubt, that he did
“purposely, and with prior calculation and design, cause the death of another.” R.C.
2903.01(A). There was evidence that Lawrence had a motive to kill Gipson and shot only
him, although there were two other men present in the vehicle. There was also testimony
that he chose the location of the meeting, providing further support of his potential
planning of the shooting. As to the offenses of Murder and Felonious Assault, “where
allied offenses are merged and there is sufficient evidence on the offense for which
defendant is sentenced, errors relating to sufficiency and weight of the evidence on the
count that is merged are harmless and need not be considered.” State v. Abdullah, 2022-
Ohio-3977, 200 N.E.3d 627, ¶ 28 (11th Dist.).
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{¶45} While Lawrence does not specifically raise manifest weight or sufficiency
arguments as to the other charges for which he was both convicted and sentenced, we
observe that these were also supported by the evidence. To convict Lawrence of
Kidnapping, the State was required to prove that he did “by force, threat, or deception, *
* * remove another from the place where the other person is found or restrain the liberty
of the other person” to “terrorize, or to inflict serious physical harm on the victim * * *.”
R.C. 2905.01(A)(3). Here, Lawrence removed Isaacs from the vehicle and terrorized him
by threatening to kill him. These elements are not disputed in appellant’s brief. As to
Trafficking in Marijuana, the State was required to prove that Lawrence did knowingly
“[s]ell or offer to sell a controlled substance or a controlled substance analog.” R.C.
2925.03(A)(1). Testimony established that Lawrence provided, in exchange for money,
marijuana to Gipson. This constituted the knowing sale of a controlled substance.
{¶46} Finally, we observe that under his third assignment of error relating to the
weight and sufficiency of the evidence, Lawrence also argues that the prosecutor asked
irrelevant and “harassing” questions during his cross-examination. The State counters
that this issue is not properly addressed since it was not assigned as error.
{¶47} App.R. 12(A)(1)(b) sets forth that an appellate court should determine an
appeal “on its merits on the assignments of error set forth in the briefs.” “Generally,
appellate courts rule on assignments of error only and do not address mere arguments.”
State v. Green, 11th Dist. Trumbull No. 2018-T-0063, 2019-Ohio-1303, ¶ 18. However,
in the interest of justice, courts have commonly addressed issues that are discernable
within an appellant’s brief. Id. at ¶ 19. In the interests of justice, we will consider this
argument.
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{¶48} Lawrence argues that Evid.R. 611(A) and (B) were violated, an issue which
was not raised below and is properly evaluated under a plain error standard of review.
Evid.R. 611(A) provides that a court “shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.” Evid.R. 611(B) provides that cross-examination “shall be permitted on
all relevant matters and matters affecting credibility.”
{¶49} We find no evidence of harassment or embarrassment in the questions
highlighted by Lawrence, including questions about his employment, use and sale of
marijuana, and details relating to the use and possession of his firearm. These questions
were relevant to considerations such as how he earned money and to establish that he
was dealing drugs, which helped support the Trafficking in Marijuana conviction.
Significantly, they also followed up on questions asked during direct examination relating
to Lawrence’s sale of marijuana. Further, questions about Lawrence’s use and
possession of his firearm in conjunction with marijuana addressed his credibility relating
to untruthfulness on his CCW application and also followed up on questions asked on
direct relating to Lawrence’s CCW permit and his past experience and training with
firearms. We find no reversible error in this line of questioning.
{¶50} The first and third assignments of error are without merit.
{¶51} In his second assignment of error, Lawrence argues that the offenses for
which he was convicted should have merged since they were allied offenses which
occurred during one transaction.
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{¶52} “An appellate court should apply a de novo standard of review in reviewing
a trial court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d 482,
2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. The State argues, however, that a plain error
standard applies here. “An accused’s failure to raise the issue of allied offenses of similar
import in the trial court forfeits all but plain error, and a forfeited error is not reversible
error unless it affected the outcome of the proceeding and reversal is necessary to correct
a manifest miscarriage of justice.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,
38 N.E.3d 860, ¶ 3. At sentencing, the court indicated which offenses it merged and
asked if there were any objections, to which defense counsel responded in the negative.
However, when defense counsel subsequently spoke in Lawrence’s defense, he then
indicated that the Aggravated Murder, Kidnapping and Trafficking charges should merge
since they were part of a course of conduct, although he conceded that the gun
specifications would not merge. Even presuming that a de novo standard applies as to
those offenses challenged, we find no error in the court’s decision on merger.
{¶53} R.C. 2941.25 governs the imposition of punishment for multiple offenses:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶54} “Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any of the following is true: (1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were
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committed separately, or (3) the conduct shows that the offenses were committed with
separate animus.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
paragraph three of the syllabus. “Two or more offenses of dissimilar import exist within
the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
involving separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at paragraph two of the syllabus.
{¶55} Lawrence argues that “you cannot commit an aggravated Murder; Murder;
Felonious Assault; Kidnapping separately on the same person when these acts all occur
in the same transaction” and that “one cannot shoot without assaulting the person, and
holding him down and close (sic), thereby committing kidnapping.” Lawrence fails to
recognize a few salient points. First, the offenses for Felonious Assault and Murder were
merged into other convictions so it is unnecessary to address the argument as to those
offenses. Second, the convictions for Aggravated Murder and Kidnapping relate not to
the “same person” but involved separate victims. The Aggravated Murder conviction
resulted from Lawrence shooting Gipson and the Kidnapping conviction was for holding
Isaacs at gunpoint after the shooting. Ruff provides that “[t]wo or more offenses of
dissimilar import exist * * * when the defendant’s conduct constitutes offenses involving
separate victims.” Id. at paragraph two of the syllabus, ¶ 26 (“[w]hen a defendant’s
conduct victimizes more than one person, the harm for each person is separate and
distinct, and therefore, the defendant can be convicted of multiple counts”). See State v.
Hardrick, 2017-Ohio-623, 85 N.E.3d 160, ¶ 25 (11th Dist.) (where “there were two
separate victims” to a bank robbery, “pursuant to Ruff, the trial court was without power
to merge the aggravated robberies”). The remaining offense that was not merged,
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Trafficking in Marijuana, can also be seen as having a separate victim, as drug trafficking
has been viewed as an offense against society as a whole. State v. Bontrager, 2022-
Ohio-1367, 188 N.E.3d 607, ¶ 16 (4th Dist.).
{¶56} Further, there were separate actions and motivations for these three crimes.
The Aggravated Murder was completed through the shooting of Gipson, which the
testimony indicated Lawrence committed as an act of revenge for his alleged murder of
Pace. After this act was complete, Lawrence pulled Isaacs out of the car, held him at
gunpoint, and threatened him. Not only were these separate acts from shooting Gipson
but the evidence indicated they occurred for the purpose of Isaacs reporting a robbery to
support Lawrence’s claim of self-defense. As to the offense of Trafficking in Marijuana,
evidence supported a determination that this transaction was completed prior to the
shooting and was conducted with a separate animus to receive payment for the marijuana
versus the animus outlined above.
{¶57} Lawrence also argues that the firearm specifications should have merged
because they arose out of the same transaction and continuous act.
{¶58} The trial court sentenced Lawrence to prison terms for two firearm
specifications, those associated with Counts One and Five. Merger of these offenses
was not appropriate here as a sentence was required for each of the counts.
{¶59} R.C. 2929.14(B)(1)(b) provides: “[a] court shall not impose more than one
prison term on an offender under division (B)(1)(a) of this section [governing sentencing
on firearm specifications] for felonies committed as part of the same act or transaction,”
i.e., “a series of continuous acts bound together by time, space and purpose, and directed
toward a single objective.” (Citation omitted.) State v. Wills, 69 Ohio St.3d 690, 691, 635
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N.E.2d 370 (1994). While “R.C. 2929.14(B)(1)(b) generally provides that multiple prison
terms for firearm specifications are not permissible when the underlying felonies were”
part of the same act or transaction, “[a]n exception to this rule is set forth in R.C.
2929.14(B)(1)(g).” State v. Hope, 2019-Ohio-2174, 137 N.E.3d 549, ¶ 155 (11th Dist.).
R.C. 2929.14(B)(1)(g) provides:
If an offender is convicted of * * * two or more felonies, if one or more
of those felonies are aggravated murder * * * and if the offender is
convicted of or pleads guilty to a specification of the type described
under division (B)(1)(a) of this section [a specification under section
2941.141, 2941.144, or 2941.145 of the Revised Code of] in
connection with two or more of the felonies, the sentencing court
shall impose on the offender the prison term specified under division
(B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted * * * and, in its
discretion, also may impose on the offender the prison term specified
under that division for any or all of the remaining specifications.
{¶60} Since Lawrence was convicted of Aggravated Murder and firearm
specifications under R.C. 2941.145 in connection with two or more felonies, the court was
required to impose the prison term for the two most serious specifications. “The same
act or transaction requirement does not apply under such circumstances.” Hope at ¶ 157.
Merger of these specifications was not warranted where they each required a sentence
be ordered.
{¶61} The second assignment of error is without merit.
{¶62} In his fourth assignment of error, Lawrence argues that the consecutive
sentences were not supported by the record, emphasizing his lack of a criminal record
and that he acted in self-defense.
{¶63} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
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court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing * * * if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14 [or] * * * [t]hat the sentence is otherwise
contrary to law.” Id.
{¶64} “A sentence is contrary to law when it is ‘in violation of statute or legal
regulations,’” such as where it falls outside of the statutory range for the offense or where
the trial court fails to consider the purposes and principles of sentencing under R.C.
2929.11 and the sentencing factors in R.C. 2929.12. State v. Meeks, 11th Dist. Ashtabula
No. 2022-A-0060, 2023-Ohio-988, ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, 169 N.E.3d 649, ¶ 34. We “cannot review alleged error under R.C.
2929.11 and R.C. 2929.12 to evaluate whether the sentencing court’s findings for those
sentences are unsupported by the record.” State v. Reed, 11th Dist. Ashtabula No. 2022-
A-0082, 2023-Ohio-1324, ¶ 13.
{¶65} While raised in the third assignment of error rather than under an
assignment separately identifying it as error, we will first briefly address Lawrence’s
argument that he should be granted leniency in his sentence. A general request for
leniency does not warrant reversal for error and we do not find that he raises a valid
argument that his sentence was contrary to law. The lower court stated that it considered
the required sentencing factors under R.C. 2929.11 and .12. As outlined above, we
cannot review whether these are supported by the record. Further, his sentences are
within the statutory range. R.C. 2929.03(A)(1)(d) (allowing a term of thirty years to life for
22
Case No. 2022-L-110
Aggravated Murder); R.C. 2929.14(A)(1)(a) (indefinite prison term for first degree felony
is three to eleven years); R.C. 2929.14(A)(5) (indefinite prison term for fifth degree felony
is six to twelve months). There are no legal grounds for this court to find the sentence
was improper because the lower court should have been more “lenient.”
{¶66} As to the consecutive nature of the offenses, pursuant to R.C.
2929.14(C)(4), separate prison terms for multiple offenses may be ordered to be served
consecutively if the court finds it is “necessary to protect the public from future crime or
to punish the offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
public,” and finds any of the R.C. 2929.14(C)(4)(a)-(c) factors are present. The pertinent
R.C. 2929.14(C)(4)(a)-(c) factor here is (b): “[a]t least two of the multiple offenses were
committed as part of one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual that no single prison
term for any of the offenses committed * * * adequately reflects the seriousness of the
offender’s conduct.”
{¶67} To reverse the consecutive sentencing findings, this court must “‘clearly and
convincingly find that the record does not support the court’s findings.’” (Citation
omitted.) State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 23; R.C.
2953.08(G)(2). There must be an “evidentiary basis” that is “adequate to fully support the
trial court’s consecutive-sentence findings.” State v. Gwynne, __ Ohio St.3d __, 2022-
Ohio-4607, ___ N.E.3d __, ¶ 29. “This requires the appellate court to focus on both the
quantity and quality of the evidence in the record that either supports or contradicts the
consecutive-sentence findings. An appellate court may not, for example, presume that
23
Case No. 2022-L-110
because the record contains some evidence relevant to and not inconsistent with the
consecutive-sentence findings, that this evidence is enough to fully support the findings.”
Id. In evaluating consecutive sentences, the appellate court is “authorized to substitute
its judgment for the trial court’s judgment if [it] has a firm conviction or belief, after
reviewing the entire record, that the evidence does not support the specific findings made
by the trial court to impose consecutive sentences.” Id.
{¶68} Lawrence does not argue that the court failed to make the necessary
findings but contends that such findings were not supported by the record. The lower
court found, both at the sentencing hearing and in the sentencing entry, that consecutive
sentences are necessary to protect the public and punish Lawrence, are not
disproportionate to his conduct and the danger he poses, and the harm is so great or
unusual that a single term would not adequately reflect the seriousness of Lawrence’s
conduct. We do observe that, at the sentencing hearing, the court did not specifically
state in relation to R.C. 2929.14(C)(4)(b) that “two of the multiple offenses were
committed as part of one or more courses of conduct,” although it specifically stated the
seriousness portion of the finding. Nonetheless, we note that “a ‘word-for-word recitation’
of the language” of the statute is not required to order consecutive sentences. State v.
Olp, 11th Dist. Ashtabula Nos. 2015-A-0033 and 2015-A-0034, 2016-Ohio-3508, ¶ 17.
The court reviewed and discussed facts relating to the crimes occurring at the same time,
which supports a conclusion that it found there was a course of conduct, i.e., including
factual links such as time, location, and weapon. State v. Squires, 8th Dist. Cuyahoga
No. 110059, 2021-Ohio-2035, ¶ 11. This satisfies the requirement to make the necessary
findings and the remaining issue is whether these findings were supported by the record.
24
Case No. 2022-L-110
{¶69} Lawrence contends that the harm caused by the offenses was not so
great as to warrant consecutive sentences, emphasizes his lack of a criminal record, and
observes that his actions were taken in self-defense.
{¶70} As to the claim of self-defense, we emphasize that the jury determined
Lawrence committed murder, and, thereby, did not act in self-defense. While Lawrence
emphasizes his acts in self-defense in relation to the consecutive sentencing findings, it
has been held that the sentencing court’s refusal to consider a defendant’s claim of self-
defense in mitigation at sentencing is permissible based upon the jury’s rejection of that
theory. State v. Blevins, 2019-Ohio-2744, 140 N.E.3d 27, ¶ 97 (4th Dist.) (“[a]lthough
Appellant’s version of events supported a claim of self-defense, the jury rejected it and
the trial court was free to reject it as well during the sentencing phase”). The facts support
the sentencing judge’s analysis and conclusion that the murder was an act of revenge, in
a public place, while other individuals were present in the vehicle. This supports a finding
both that there was a risk posed to the public and that there was great harm caused.
Gipson lost his life, two individuals were impacted through watching their friend killed, and
Isaacs suffered threats while held at gunpoint. The lower court properly considered the
danger posed by this type of offense and the risk posed by such a defendant to the public
in general.
{¶71} Lawrence also emphasizes his limited adult criminal record, which,
according to the PSI includes only offenses for possession of marijuana and for no valid
operator’s license. This fact does not change the danger his actions posed to the public.
R.C. 2929.14(C)(4) mentions a defendant’s criminal record only in relation to a finding
under (C)(4)(c), which finding was not made here. As such, it is not necessary to resolve
25
Case No. 2022-L-110
whether Lawrence’s history of criminal conduct supports a finding that consecutive
sentences are necessary. The danger he poses to the public, regardless of his criminal
background, is evident from his conduct here, where he fired 14 shots in an apartment
building parking lot, into a car occupied by three individuals, while also carrying and selling
marijuana.
{¶72} The fourth assignment of error is without merit.
{¶73} For the foregoing reasons, Lawrence’s sentences and/or convictions for
Aggravated Murder, Murder, Felonious Assault, Kidnapping, and Trafficking in Marijuana
in the Lake County Court of Common Pleas are affirmed. Costs to be taxed against
appellant.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
26
Case No. 2022-L-110
Now, label each SEGMENT under the correct category. Ensure that EVERY study is labeled under at least one category. Use square brackets to surround each SEGMENT, without explanations, and separate them by commas. Follow the following format.
- Related Segments:
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"2",
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Law
9864704
[SEGMENT 1]
2024 IL App (1st) 230571-U
No. 1-23-0571
Order filed October 4, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 9331
)
JVARUS MCKNIGHT ) The Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Presiding Justice Tailor and Justice Gamrath concurred in the judgment.
ORDER
¶1 Held: Affirmed, where State proved defendant possessed a firearm and statute barring
felons from possessing firearms is constitutional.
¶2 A driver with a prior felony might worry about police officers finding a firearm in the car.
Jvarus McKnight, who had a felony conviction, sped off when asked to get out of the car during a
traffic stop, crashing a few blocks away. Officers found a loaded gun in the glove compartment.
¶3 McKnight argues that (i) the State failed to prove that he possessed the gun and (ii) the
statute barring people with felonies from possessing firearms is unconstitutional. Neither of
McKnight’s attacks on his conviction succeed. We disagree and affirm. No. 1-23-0571
¶4 McKnight’s flight, prior felony, and control over the car all contribute to the inference that
he knew about the gun. Furthermore, the statute defining his criminal offense ([CITATION])
violates neither the United States nor the Illinois constitutions.
¶5 Background
¶6 After a bench trial, the court found Jvarus McKnight guilty of unlawful use or possession
of a weapon by a felon ([CITATION]).
¶7 Officer Brian Hima testified that while on patrol with two others, he saw a grey BMW, a
car he was on alert for, with an object hanging from its rearview mirror. He activated the siren and
lights before stopping that car. Hima approached the driver’s side and spoke with the lone
occupant, McKnight, for less than a minute before McKnight suddenly sped off.
¶8 After hearing that a car had crashed blocks away, Hima and his partners drove there. He
saw McKnight in the driver’s seat. Several damaged cars were nearby. Officers arrested McKnight
and searched the car. Hima opened the glove compartment and found a loaded gun.
¶9 Body-worn cameras captured the traffic stop and the scene after the crash. Clips of that
footage showed: (i) McKnight begins, then stops, unbuckling his seatbelt before driving off as
officers stand alongside the car, (ii) damaged cars at the crash site, and (iii) Hima finding a gun in
the glove compartment. The parties stipulated that McKnight had a prior felony.
¶ 10 The trial court found McKnight guilty. It later denied McKnight’s attack on the sufficiency
of the State’s proof, emphasizing McKnight “took off at a high rate of speed,” “got in an accident,”
and thus showed “extreme evidence of consciousness of guilt[.]”
¶ 11 Analysis
No. 1-23-0571
¶ 12 McKnight contends (i) the State failed to prove beyond a reasonable doubt that he
possessed the loaded gun and (ii) the statute barring felons from possessing firearms (720 ILCS
5/24-1.1(a) (West 2020)) is unconstitutional under our federal and state constitutions. We disagree.
¶ 13 Sufficiency
¶ 14 We assess the proof in the light most favorable to the State and ask if a rational trier of fact
could have found the elements beyond a reasonable doubt. [CITATION]. Possession is the pertinent element. 720 ILCS 5/24-1.1(a) (West 2020) (defining
possession as element of unlawful use or possession of weapons by felons). Possession can be
actual or constructive. See [CITATION] (noting pertinent statute prohibits
possession “on” and “about” a person). Because McKnight was not holding the gun, he did not
actually possess it. E.g., [CITATION] (State proved actual
possession by presenting officer testimony about seeing defendant toss gun).
¶ 15 The State proves constructive possession by establishing defendant (i) knew the gun was
present and (ii) had immediate and exclusive control over the area. [CITATION].
McKnight disputes both parts.
¶ 16 Control
¶ 17 Officers pulled McKnight over and, moments after the crash, again saw him sitting in the
car. McKnight was the driver; no one else was present, so the trier of fact could have found that
McKnight had immediate and exclusive control over the glove compartment. [CITATION]
(“control of the vehicle rather than ownership of the vehicle which
is pertinent to proof of control of the area”).
No. 1-23-0571
¶ 18 McKnight does not dispute that, as the lone occupant, he drove and crashed the car. Instead,
he insists the State needed to present proof that he (i) owned the car or (ii) had “other possessions”
in it. The case he cites in support, however, demands nothing of the sort. In [CITATION], officers had not seen the defendant inside the car but had found his
possessions in it and knew the defendant was the registered owner. [CITATION], ¶¶ 4, 31, 42. Here, however, officer testimony and body cam footage proved McKnight’s
control. “[D]irect evidence of a defendant driving a vehicle is * * * sufficient evidence of control.”
Id. ¶ 42 (noting “issue of control is noncontroversial in the great majority of cases where a
defendant is stopped while actually driving a vehicle”).
¶ 19 Knowledge
¶ 20 McKnight contends his presence in the car was not proof he knew the loaded handgun was
in the glove compartment. He asserts that no evidence showed he (i) could see the gun from where
he sat, (ii) attempted to retrieve or conceal the gun, or (iii) owned the car or often used it. In
McKnight’s view, the absence of this evidence shows he did not know about the gun, rendering
evidence of his flight “meaningless.”
¶ 21 We disagree. When analyzing the State’s proof, “we review all the evidence, not some.”
[CITATION], ¶ 40 (citing Collins, 106 Ill. 2d at 261). McKnight
errs by excluding evidence of his flight, overlooking the relevance of his prior felony, and
minimizing his control over the car as its lone occupant.
¶ 22 Officers observed McKnight commit a traffic violation, speed away from the traffic stop
when asked to get out of the car, and later exit within arm’s reach of a loaded gun at the crash site.
These facts, together with McKnight’s felony conviction, allowed the trial court to infer McKnight
====== End of Document ====== No. 1-23-0571
knew about the firearm’s presence. See [CITATION]
(“rational” inference defendant with prior felony was “armed” where his hands were near his waist
while fleeing on foot and gun was within arm’s reach at arrest).
¶ 23 To be sure, the trial court could not infer McKnight knew about the gun just because he
was in the car when stopped for a traffic violation. E.g., [CITATION]
¶¶ 36-47 (holding State failed to prove defendant knew firearm was present and embedded within
structure of driver’s seat). Rather, McKnight’s actions during the stop—speeding away rather than
getting out as the officers apparently directed—suggest a guilty conscience. Id. ¶ 44 (defendant
“did and said nothing during the encounter that would cause the officers to conjecture that he knew
about the handgun”); [CITATION]. And his felony, one that
barred him from possessing firearms (720 ILCS 5/24-1.1(a) (West 2020)), offered a basis for
inferring discovering the gun inspired his bolting from the stop.
¶ 24 The record does not reveal what the trial court meant when describing McKnight’s flight
as “extreme evidence.” We hold only that a factfinder could have found the elements of
constructive possession beyond a reasonable doubt. See [CITATION] (stating
standard). We affirm McKnight’s conviction for violating section 24-1.1(a).
¶ 25 Facial Challenge
¶ 26 McKnight also argues section 24-1.1(a) violates both the second amendment of the federal
constitution and article I, section 22 of the Illinois constitution. He raises a facial challenge, the
“ ‘most difficult challenge to mount successfully, ’ ” because it requires “ ‘establish[ing] that no
set of circumstances exists under which [section 24-1.1(a)] would be valid.’ ” See [CITATION]
[SEGMENT 2]
No. 1-23-0571
Rahimi, --- U.S. ----, 144 S. Ct. 1889, 1898 (2024) (quoting [CITATION]); see also [CITATION].
¶ 27 Two laws primarily drive McKnight’s challenge under both constitutions. The second
amendment provides: “A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. Section
24-1.1(a) provides: “It is unlawful for a person to knowingly possess on or about his person * * *
any firearm or any firearm ammunition if the person has been convicted of a felony[.]” 720 ILCS
5/24-1.1(a) (West 2020). We review McKnight’s challenge de novo ([CITATION]) and hold it fails.
¶ 28 Federal Constitution
¶ 29 McKnight contends that a law like section 24-1.1(a) “would have been unknown to those
who ratified the [c]constitution” and thus violates the second amendment. He notes the State has
the burden to justify section 24-1.1(a). But, because he attacks the law before this court for the
first time ([CITATION]), he proceeds in two steps. See [CITATION], v. [CITATION] (holding second amendment protects right
to public carry and clarifying analytical framework courts must apply).
¶ 30 First, McKnight contends “all Americans,” even those with prior felony convictions, “fall
within the [s]econd [a]mendment’s protections” for “the people.” Next, he contends no “true
historical analogue” to section 24-1.1(a) exists because historical bans focused on “actual
dangerousness, not status or criminal history.” In his view, “shall not be infringed” means no law
can now ban McKnight from firearm possession.
¶ 31 Applicability of Second Amendment
====== End of Part ====== No. 1-23-0571
¶ 32 The first step under Bruen asks whether the second amendment’s plain language covers
McKnight’s conduct. Bruen, 597 U.S. at 18. McKnight contends his conduct, possessing a firearm,
“presumptively” falls within the second amendment’s sweep. [CITATION], ¶ 87, pet. for leave to appeal, No. 130153 (filed Oct. 30, 2023) (holding second
amendment’s “keep and bear arms” language encompasses possession); but see [CITATION],
¶ 26 (discussing split in authority on this issue); [CITATION] (same). We assume without deciding that the
second amendment’s protection of “the people” includes McKnight.
¶ 33 History and Tradition
¶ 34 The second step asks whether section 24-1.1(a) is rooted in this nation’s history and
tradition of firearms regulation. Bruen, 597 U.S. at 33-34. McKnight contends no “true historical
analogue” to section 24-1.1(a) exists because historical bans focused on “actual dangerousness,
not status or criminal history.” We disagree.
¶ 35 Any search for a true historical analogue, as McKnight understands it, misplaces the
Supreme Court’s focus. See Rahimi, 144 S. Ct. at 1898; see also id. at 1925 (Barrett, J., concurring)
(“historical regulations reveal a principle, not a mold”). Instead, we ask whether section 24-1.1(a)
aligns with the “principles that underpin our regulatory tradition.” Id. at 1898.
¶ 36 Reasoning by analogy, as Bruen instructs, section 24-1.1(a) finds historical analogues in
laws pre-dating our country’s founding. Early English kings, Parliament, North American
colonists, and American founders all “believed that certain classes of people posed a great risk of
violence[:] Thus, until those individuals could show they did not pose such a risk, they could be
forbidden from owning firearms.” [CITATION]; see also [CITATION],
No. 1-23-0571
230113, ¶ 31 (noting “concept of disarming criminals dates at least to Pennsylvania's ratifying
convention”).
¶ 37 Governments then and now have presumptively disarmed entire groups. [CITATION]. Section 24-1.1(a) presumptively disarms people with felony convictions but does
not violate the second amendment. Rather, section 24-1.1(a) controls the dangers posed by
firearms and those who might use them to harm. See [CITATION].
Contrary to McKnight’s contention, historical analogues to section 24-1.1(a) would have been
known to our founders: Section 24-1.1(a) does not violate the second amendment.
¶ 38 Illinois Constitution
¶ 39 McKnight concedes his “substantive analysis” under the federal and state constitutions is
“the same.” Thus, his contention under article I, section 22 of the Illinois constitution fails for
similar reasons. See [CITATION] (holding defendant “failed to demonstrate the challenged statutes
violate the Illinois Constitution either facially or as applied to him”).
¶ 40 Additionally, because we have assumed “the people” under the second amendment
includes McKnight, we need not address his claim that our constitution’s use of “the individual
citizen” somehow differs from the federal constitution’s use of “the people.” Likewise, we need
not decide whether our constitution’s use of “[s]ubject only to the police power” improperly limits
his right under the second amendment.
¶ 41 Affirmed.
The provided text does not include any court ruling citations, full or abbreviated, including the target citation 'people-v-brooks'. Therefore, no changes are necessary.
Here's the text with no modifications:
NOTICE
IL App (4th) 231444-U FILED
This Order was filed under October 2, 2024
Supreme Court Rule 23 and is NO. 4-23-1444 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
BENJAMIN GUSTAFSON, ) No. 17CF159
Defendant-Appellant. )
) Honorable
) Michael L. Atterberry,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Steigmann and DeArmond concurred in the judgment.
ORDER
¶1 Held: Defendant failed to establish that the armed habitual criminal statute under which
he was convicted was facially unconstitutional under either the United States
Constitution or the Illinois Constitution.
¶2 Defendant, Benjamin Gustafson, was convicted of being an armed habitual
criminal and sentenced to 24 years’ imprisonment. He subsequently filed a petition for
postconviction relief that was denied following an evidentiary hearing. Defendant appeals the
denial of his postconviction petition, arguing, for the first time on appeal, that the armed habitual
criminal statute is facially unconstitutional under the United States and Illinois Constitutions. We
affirm.
¶3 I. BACKGROUND ¶4 In May 2018, a jury found defendant guilty of unlawful possession of a weapon
by a felon (720 ILCS 5/24-1.1(a) (West 2016)) and being an armed habitual criminal (id. § 24-
1.7(a)). The trial court found that the former offense merged into the latter offense and sentenced
defendant to 24 years’ imprisonment. This court affirmed defendant’s conviction on direct
appeal. [CITATION]. In September 2021, defendant
pro se filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725
ILCS 5/122-1 et seq. (West 2020)). Defendant did not include the constitutional challenges he
raises on appeal in his postconviction petition. The trial court denied defendant’s petition
following an evidentiary hearing.
¶5 This appeal followed.
¶6 II. ANALYSIS
¶7 On appeal, and for the first time, defendant argues that the armed habitual
criminal statute is facially unconstitutional under the second amendment of the United States
Constitution (U.S. Const., amend. II) and article I, section 22 of the Illinois Constitution (Ill.
Const. 1970, art. I, § 22), pursuant to the new framework for analyzing second amendment
challenges articulated by the Supreme Court in [CITATION].
¶8 Before addressing the merits of defendant’s constitutional challenges, we note
that the State, citing our supreme court’s decision in [CITATION],
contends defendant forfeited the arguments raised on appeal by failing to include them in his
postconviction petition and, according to the State, we lack the authority to excuse defendant’s
[SEGMENT 3]
forfeiture. In [CITATION], our supreme court “stress[ed] that our appellate court is not free, as this
court is under its supervisory authority, to excuse, in the context of postconviction proceedings,
an appellate [forfeiture] caused by the failure of a defendant to include issues in his or her
postconviction petition.” [CITATION] at 508. However, Jones does not apply to the instant appeal, as a
facial challenge to the constitutionality of a statute is not subject to forfeiture and may be raised
at any time. [CITATION], ¶ 39 (“[A] challenge to the constitutionality of a statute
may be raised at any time.”); [CITATION], ¶ 24 (“Voidness
challenges are not subject to forfeiture or any other procedural bar, and such challenges may be
raised at any time in any court.” (Internal quotation marks omitted.)). Thus, we reject the State’s
contention and address defendant’s arguments on the merits.
¶ 9 “Constitutional challenges carry the heavy burden of successfully rebutting the
strong judicial presumption that statutes are constitutional.” [CITATION], ¶ 90. “That presumption applies with equal force to legislative enactments that declare
and define conduct constituting a crime and determine the penalties imposed for such conduct.”
[CITATION], ¶ 23. “To overcome this presumption, the party challenging the
statute must clearly establish that it violates the constitution.” [CITATION], 487 (2005). “A party raising a facial challenge to a statute faces a particularly heavy burden.
[CITATION.] A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid.” [CITATION], ¶ 10. “Courts have a duty to uphold the constitutionality of a statute whenever reasonably
possible, resolving any doubts in favor the statute’s validity.” [CITATION], ¶ 23. “The
determination of whether a statute is constitutional is a question of law to be reviewed de novo.”
[CITATION], ¶ 30.
¶ 10 A. The United States Constitution
¶ 11 Relying on the Supreme Court’s decision in [CITATION], defendant first argues that the
armed habitual criminal statute violates the second amendment to the United States Constitution
on its face. According to defendant, he “is part of ‘the People’ to whom the Second Amendment
refers, and his past felony convictions do not remove him from that group.” Defendant further
contends that the statute is inconsistent with the nation’s historical tradition of firearm regulation,
arguing “there is no founding-era evidence of permanent status-based revocation of the right to
keep and bear arms.”
¶ 12 The second amendment to the United States Constitution provides as follows: “A
well regulated Militia, being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.” U.S. Const., amend. II. The Supreme Court, in
[CITATION], and [CITATION], held “that the Second and Fourteenth Amendments protect the right of an ordinary,
law-abiding citizen to possess a handgun in the home for self-defense.” [CITATION]. In [CITATION], the Supreme Court held, “consistent with [CITATION] and [CITATION], that the Second and
Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside
the home.” Id. at 10. In reaching its decision, the [CITATION] court articulated the following
framework for analyzing whether a particular regulation violates the second amendment:
“[W]e hold that when the Second Amendment’s plain text covers
an individual’s conduct, the Constitution presumptively protects
that conduct. To justify its regulation, the government may not
simply posit that the regulation promotes an important interest.
Rather, the government must demonstrate that the regulation is
consistent with this Nation’s historical tradition of firearm
regulation. Only if a firearm regulation is consistent with this
Nation’s historical tradition may a court conclude that the
individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’ ” Id. at 17 (quoting [CITATION]).
¶ 13 The armed habitual criminal statute provides, in pertinent part, that a “person
commits the offense of being an armed habitual criminal if he or she receives, sells, possesses or
transfers any firearm after having been convicted a total of 2 or more times of any combination”
of certain enumerated offenses. See 720 ILCS 5/24-1.7(a) (West 2016). There is no dispute that
the State proved the essential elements of the offense of being an armed habitual criminal
beyond a reasonable doubt at defendant’s trial.
¶ 14 As noted above, defendant argues the armed habitual criminal statute is facially
unconstitutional because it regulates conduct—i.e., possessing a firearm—protected by the
second amendment and it is inconsistent with this nation’s historical tradition of firearm
regulation where “there is no founding-era evidence of permanent status-based revocation of the
right to keep and bear arms.” We disagree, as this court has repeatedly rejected this same
argument on the basis that a felon’s possession of a firearm is not conduct protected by the
second amendment. See [CITATION] (finding a felon’s
possession of a firearm is not conduct protected by the second amendment); [CITATION]
(same); [CITATION] (same);
[CITATION] (same).
¶ 15 In [CITATION], the defendant argued that his conviction for unlawful possession of a
weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)) should be vacated because the unlawful
possession of a weapon by a felon statute was facially unconstitutional for the same reasons
advanced by defendant in this case. [CITATION]. Relying on the First
District’s decision in [CITATION], we rejected the defendant’s
argument on the basis that, as a felon, Bruen simply did not apply to him. Id. ¶¶ 18-21.
Specifically, we relied on the following reasoning in [CITATION] to conclude that a felon’s possession
of a firearm was not conduct protected by the second amendment:
“The Bruen Court could not have been more clear that its newly
announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like
defendant. [CITATION] (the holding
was limited to laws affecting ‘law-abiding citizens’). Just in case a
reader missed the first time that the court said it, the court repeated
it 18 times. [CITATION] passim (the six
justices in the majority repeated the phrase ‘law-abiding’ 18 times
in their majority opinion and their concurrences). Further, Justice
Kavanaugh in his concurrence quoted an earlier case that stated:
‘ “[N]othing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
***.” ’ [CITATION] (Kavanaugh, J.,
concurring, joined by Roberts, C.J.) (quoting [CITATION]).
Justice Kavanaugh’s concurrence was
joined by Chief Justice Roberts, and they both joined the
six-justice majority opinion. Based on the plain, clear, and repeated
language of the justices in the majority, defendant is simply
outside the box drawn by Bruen.” [CITATION], ¶ 37.
We found the [CITATION] court’s reasoning instructive and agreed that “Bruen’s historical-tradition
test applies to regulations affecting law-abiding citizens’ possession of firearms.” (Emphasis in
original.) [CITATION], ¶ 21. Ultimately, in rejecting the defendant’s facial
challenge to the unlawful possession of a weapon by a felon statute, we held that, “[a]s a felon,
defendant, by definition, is not a law-abiding citizen. Thus, defendant cannot show that his
conduct was presumptively protected by the second amendment, and therefore, he does not fall
within the scope of Bruen.” Id.
¶ 16 Here, there is no dispute that defendant is a convicted felon and therefore not a
“law-abiding citizen.” Thus, consistent with our opinion in [CITATION], we find defendant has failed
to establish that his conduct in possessing a firearm as a convicted felon was presumptively
protected by the second amendment. We note that defendant “urges this Court to reject” the
cases that have held a felon’s possession of a weapon is not protected by the second amendment.
He contends we should instead find, as the First District did in [CITATION], ¶ 89, that a felon’s possession of a firearm is conduct presumptively protected by
the second amendment because a “defendant’s status as a felon is irrelevant” when determining
whether the second amendment’s plain text covers an individual’s conduct. We decline to follow
[CITATION], as it is in direct conflict with our holdings in [CITATION], and [CITATION]. See
[CITATION], ¶ 44 (“One district of the appellate court is not bound to follow the decision of another district when the district has made a determination of its own contrary to that of another district.”). Moreover, we note that a
====== End of Modified Court Ruling ====== separate panel of the First District has flatly rejected the Brooks court’s finding ([CITATION]) and another panel has called its reasoning into
[SEGMENT 4]
question ([CITATION]). Accordingly, for the reasons
discussed, we reject defendant’s argument that the armed habitual criminal statute violates the
second amendment to the United States Constitution on its face.
¶ 17 B. The Illinois Constitution
¶ 18 Defendant also argues that the armed habitual criminal statute violates article 1,
section 22 of the Illinois Constitution (Ill. Const. 1970, art. I, § 22) on its face. Defendant asserts
that “the Illinois Constitution provides greater protection than the Second Amendment by
expanding the group of persons subject to its provisions.” He further maintains that “to the extent
the prefatory clause in the Illinois Constitution, ‘Subject only to the police power,’ limits the
right to keep and bear arms, under the Supremacy Clause, those limits go only as far [as] the
historical limits the Supreme Court established in [Bruen].”
¶ 19 Article I, section 22 of the Illinois Constitution provides, “Subject only to the
police power, the right of the individual citizen to keep and bear arms shall not be infringed.” Ill.
Const. 1970, art. I, § 22. “The section does not mirror the second amendment to the Federal
Constitution [citation]; rather it adds the words ‘[s]ubject only to the police power,’ omits
prefatory language concerning the importance of a militia, and substitutes ‘the individual citizen’
for ‘the people.’ ” [CITATION]. “[T]he latter two changes were intended to broaden the scope of the
right to arms from a collective one applicable only to weapons traditionally used by a regulated
militia [citation], to an individual right covering a wider variety of arms.” Id. (citing Report of
the Bill of Rights Committee on the Preamble and Bill of Rights, 6 Record of Proceedings, Sixth
Illinois Constitutional Convention 87). “Equally distinctive, however, is the explicit recognition
of ‘the police power’ as a limitation on the liberty the provision affords.” Id. “The Bill of Rights
Committee explained in its report that ‘[b]ecause arms pose an extraordinary threat to the safety
and good order of society, the possession and use of arms is subject to an extraordinary degree of
control under the police power.’ ” Id. at 491-92 (quoting Report of the Bill of Rights Committee
on the Preamble and Bill of Rights, 6 Record of Proceedings, Sixth Illinois Constitutional
Convention 88).
¶ 20 This court, in [CITATION] and [CITATION], rejected the same argument defendant now raises,
finding that prohibiting the possession of firearms by felons was a proper exercise of the
legislature’s police power. [CITATION], ¶¶ 17-18. We reasoned, “Illinois courts have recognized that, in McDonald,
Justice Alito ‘noted that federal and state legislatures and local governments have police powers
to pass laws that promote the health, safety and general welfare of their citizens.’ ” [CITATION], ¶ 27 (quoting [CITATION], ¶ 23).
Moreover, “the Supreme Court reiterated its statement in Heller that its holding did not cast
doubt on longstanding regulatory measures such as ‘prohibitions on the possession of firearms
by felons.’ ” [CITATION], ¶ 18 (quoting McDonald, 561 U.S. at 786).
Thus, we found that “even assuming defendant is an ‘individual citizen’ such that he falls under
the scope of article I, section 22, contrary to defendant’s argument, the police power includes the
power to regulate certain aspects of gun possession and ownership,” including “the longstanding
prohibition on the possession of firearms by felons.” (Internal quotation marks omitted.) [CITATION], ¶ 27.
====== End of Part of a Court Ruling ====== ¶ 21 We agree with the reasoning and holdings in [CITATION] and [CITATION], and again find that
the prohibition on the possession of firearms by felons is a proper exercise of the legislature’s
police power. Accordingly, we conclude defendant has failed to establish that the armed habitual
criminal statute violates article I, section 22 of the Illinois Constitution.
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we affirm the trial court’s judgment.
¶ 24 Affirmed.
- 10 - [CITATION]
2024 IL App (1st) 221562-U
No. 1-22-1562
First Division
September 30, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 21 CR 10721
v. )
)
SONNIE MARTIN, ) Honorable
) Vincent M Gaughan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for unlawful possession of a weapon by a felon is affirmed
where (1) the evidence was sufficient to prove beyond a reasonable doubt that he
possessed a firearm within the meaning of the statute, (2) the trial court properly
denied his motion to suppress, and (3) his as-applied constitutional challenge under
the second amendment is without merit.
¶2 Following a bench trial, defendant-appellant Sonnie Martin was found guilty of unlawful
possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2020)) and sentenced to No. 1-22-1562
44 months’ imprisonment. Defendant appeals therefrom, arguing that (1) there was insufficient
evidence to find him guilty of UPWF beyond a reasonable doubt; (2) the trial court erred in denying
his motion to suppress; (3) his conviction for UPWF violates the second amendment of the United
States Constitution; and (4) his 44-month sentence was excessive. 1 For the reasons that follow, we
affirm.
¶3 I. BACKGROUND
¶4 On August 13, 2021, defendant was charged by indictment with one count of UPWF and
two counts of aggravated unlawful use of a weapon based on an investigatory stop and subsequent
search which took place on July 21, 2021.
¶5 Prior to trial, on December 7, 2021, defendant filed a motion to suppress evidence alleging
that the police did not have reasonable, articulable suspicion to stop him, and therefore, the weapon
seized from his person was inadmissible as evidence. A hearing was conducted contemporaneously
with the trial at which the following evidence was presented.
¶6 Chicago police officers Cesar Cuevas and Jose Granados both testified as to the following
facts. On July 21, 2021, while in their police vehicle, they received a dispatch call from the Office
of Emergency Management and Communications (OEMC) at 5:49 p.m., which relayed a 911 call
from an anonymous person who reported a person “flashing a gun” at the Falcon Fuel gas station
located at the intersection of 79th Street and Ashland Avenue. The subject was described as a black
male wearing a white T-shirt, black jeans, and orange, purple, and green shoes. After the dispatch
call recording was played in court, Cuevas testified that the dispatcher did not say that the caller
Because defendant’s sentence has been discharged, he has withdrawn the issue of excessive
sentence as moot. See [CITATION].
No. 1-22-1562
observed a person flashing a gun, how long it had been since the caller said there was a person
flashing a gun, or how the caller knew there was a person flashing a gun.
¶7 The officers drove towards the Falcon Fuel gas station where they observed an individual
matching the description in the parking lot of the gas station. The person was a black male wearing
a white T-shirt, black jeans, and orange, purple, and green shoes. The officers, along with
additional police officers in another police vehicle behind them, detained the person, who Cuevas
and Granados identified in court as defendant. This occurred one to two minutes after receiving
the dispatch call. Cuevas confirmed that, upon first seeing defendant, he was not doing anything
illegal.
¶8 Defendant was instructed to stop and place his hands on the wall. The officers proceeded
to handcuff defendant as Cuevas asked defendant if he had any weapons on his person. Defendant
responded, “my protection,” which Cuevas understood to mean that defendant had a weapon on
him. Defendant’s shirt was lifted, which revealed a weapon in his waistband. Granados recovered
the weapon, and eventually defendant was placed in the other police vehicle to be transferred to
the police station. Granados “cleared the weapon for any bullets and discovered one chambered
bullet in the firearm.” Granados testified that, based on his four years’ experience as an officer and
his further examination of the weapon at the police station, the weapon he recovered was a firearm.
[SEGMENT 5]
In court, Cuevas viewed the inventoried items, which he stated were “1 live round in my hand, the
black steel 9-millimeter handgun and then empty magazine.” In looking at the recovered weapon,
he noted that it looked like the serial number had been scratched off. Cuevas further confirmed
that the officers did not speak with anyone else at the gas station and did not request any security
footage and that no one else at the gas station matched the 911 caller’s description.
====== End of Part ====== ```plaintext
No. 1-22-1562
¶9 The recovered weapon was eventually sent to the Forensic Services Division. Both officers
testified that they did not request the Forensic Sciences Division to conduct any tests or further
analyze the weapon. Cuevas testified that he knew there were tests to recover scratched-off serial
numbers, but Granados was not aware of those tests at the time. Both officers also testified that
the recovered magazine did not fit the weapon and a part of it seemed to be missing.
¶ 10 The body-worn cameras on both Cuevas and Granados were active and functioning
properly that day. Footage from both body cams was played before the court.
¶ 11 In the footage from Cuevas’s body cam, the officers arrive at the gas station, immediately
spot an individual matching the description, and defendant is instructed to place his hands on the
wall. One of the officers then brings his hands around his back to place them in handcuffs, as
another officer asks, “You got anything on you?” and defendant responds, “Yes. My protection.”
As they lift defendant’s shirt, a weapon is visible in his waistband, which is then recovered. Cuevas
walks towards Granados who states that there was one bullet in the chamber and notes that the
magazine does not appear to fit the weapon. One of the other officers is heard asking defendant if
he has a firearm owner’s identification (FOID) card or a concealed carry license (CCL), but a
response, if offered, is not audible. Cuevas then returns to the vehicle to run defendant’s driver’s
license and Granados places the recovered items in the police vehicle. Granados states, “I don’t
even know what kind of gun that is.” He also states, “it’s a fake gun” and “it’s a BB-gun.” Cuevas
responds, “We can figure it out at the station.”
¶ 12 Granados’s body cam footage reflects the same sequence of events. In particular, he is seen
recovering the weapon from defendant’s waistband. He pulls the magazine out and eventually
removes a bullet from the chamber of the weapon. Later, after Cuevas states, “We can figure it out
at the station[,]” Granados walks back towards the other police vehicle to instruct the other officers
``` No. 1-22-1562
to drive defendant to the station. He then states, “I don’t think the gun is real.” Chicago police
officer Edwards 2 agrees, stating “That’s what I thought.” Granados responds, “It looks like a f***
BB-gun. I guess we’ll figure it out at the station.” Granados returns to his vehicle and the footage
ends.
¶ 13 On cross-examination, Granados testified that the magazine did not fit neatly within the
weapon which made him suspicious that it was not a real gun. He further testified that he examined
the gun and “[a]t the beginning” he thought it was a BB-gun or a fake gun. He also testified that it
appeared that part of the gun was wood, which he found inconsistent with other firearms. He also
confirmed that there was an orange dot on the weapon, which is consistent with BB-guns. He
confirmed that the reason for the orange dot was to distinguish between a real firearm and a BB-
gun. He elaborated that: “At the beginning when I first started looking at it I wasn’t sure until
further on. I kept on looking at all the aspects making sure I had a real firearm which ended up
being *** a real firearm.” When asked to clarify, he stated:
“So once I took the magazine out I realized that it was a broken magazine which is
a real magazine but the magazine has a spring inside. The bottom part, which was there
was supposed to hold the spring which the bullets go through the top and that firearm didn’t
have that. *** [T]hey broke that off.
Then there is a part in the gun where there’s supposed to be a serial number. That
serial number was not there. It appeared to be scratched off somehow. That’s how I knew
it was a firearm and then in the back of the gun there’s a pin which it’s supposed to – when
Officer Edwards’s first name does not appear in the record.
No. 1-22-1562
you hit the trigger the pin hits the bullet which makes it fire and that pistol has a pin in the
back. If you look at the back of the gun[,] there is that pin right there.”
¶ 14 Specifically, as to the serial number, Granados testified that “where the serial number is
supposed to be[,] [t]here was one letter and there’s supposed to be a number following it. There
was no number there.” When asked when he changed his mind that the weapon was in fact a real
gun, Granados responded: “Once I got to the station and I viewed the – I had time to view the
pistol because I can’t really – I have to be watching my surroundings while I’m on the street
especially in the area I was at.”
¶ 15 After both witnesses concluded their testimony, the State sought to present a firearms
expert as a witness, but the trial court denied the State’s motion. The parties then stipulated that
defendant had a 2017 felony conviction for delivery of a controlled substance, for which he
received two years’ probation.
¶ 16 The trial court first ruled on defendant’s motion to suppress, finding that the officers had
reasonable suspicion to stop defendant. This finding was based on the specific description given
in the 911 call, defendant matching the description, and the brief time that elapsed from the
dispatch call to the officers’ stop. The trial court also found that the officers’ detainment of
defendant as well as the lifting up of his shirt were within the scope of a Terry stop, and once they
saw the weapon, they had probable cause to arrest him.
¶ 17 As to the bench trial, the trial court found that the State had proved “each and every
element” beyond a reasonable doubt for the charge of UPWF. We note that, prior to ruling, the
court stated: “I don’t like the idea of Officer Cuevas saying, [‘]We’ll take care of it at the station.[’]
That was nonsense because nothing was taken care of.”
No. 1-22-1562
¶ 18 Defendant filed a motion to reconsider or, alternatively, for a new trial, asserting that the
State failed to prove the offense beyond a reasonable doubt and that the trial court erred in denying
the motion to suppress evidence. The trial court denied this motion.
¶ 19 Following a sentencing hearing, defendant was sentenced to 44 months’ imprisonment with
641 days of credit. On the same day, defendant filed a motion to reconsider the sentence, which
the trial court denied.
¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues that (1) there was insufficient evidence to find him guilty of
UPWF beyond a reasonable doubt; (2) the trial court erred in denying his motion to suppress; and
(3) his conviction for UPWF violates the second amendment of the United States Constitution.
¶ 23 A. Sufficiency of the Evidence
¶ 24 Defendant first contends that the evidence presented was insufficient to establish his guilt
beyond a reasonable doubt. In particular, defendant argues that the State failed to prove that
defendant possessed a “firearm” where the body cam video showed “the officers examining the
item and stating it was a BB-gun[.]” In his reply brief, defendant further argues that “there was no
evidence that Granados further examined the item at the station” and points out that the trial judge
commented on the officers’ failure to actually analyze the gun at the station as they insinuated they
would.
¶ 25 The State responds that defendants’ argument lacks merit where a live bullet was found in
the chamber of the weapon and both officers identified the weapon as being a “real” nine-
millimeter handgun based on their training and experience. The State also contends that the
argument fails because the trial court had the opportunity to observe the gun, its magazine, and the
No. 1-22-1562
recovered bullet, and based on that evidence, the trial court correctly found that each element of
the offense had been proved.
¶ 26 When a defendant challenges the sufficiency of the evidence against him, this court must
determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’ ” (Emphasis in original.) [CITATION], 261 (1985) (quoting [CITATION], 319 (1979)). A reviewing court will not retry the defendant or substitute
its judgment for that of the trier of fact regarding the credibility of witnesses or the weight to be
given to each witness’s testimony. [CITATION], 281 (2009). A defendant’s
[SEGMENT 6]
conviction will be reversed only when the evidence is so unreasonable, improbable, or
unsatisfactory that it creates a reasonable doubt of his guilt. [CITATION], ¶
24.
¶ 27 The State has the burden of proving beyond a reasonable doubt each element of an offense.
[CITATION], ¶ 35. To sustain a conviction for UPWF, the evidence must
establish beyond a reasonable doubt that the defendant possessed a firearm and was convicted of
a prior felony. 720 ILCS 5/24-1.1(a) (West 2020). The parties stipulated to defendant’s prior felony
conviction, and thus, the only element at issue before this court is whether defendant possessed a
firearm.
¶ 28 The FOID Act defines a “firearm” as any device “designed to expel a projectile or
projectiles by the action of an explosion, expansion of gas or escape of gas[.]” 430 ILCS 65/1.1.
(West 2020). Additionally, to qualify as a firearm under the statute, the device cannot fall into one
of four exceptions: BB-guns, paintball guns, flare guns, or certain antique firearms. Id.
No. 1-22-1562
¶ 29 It is well established that the positive and credible testimony of a single witness is sufficient
to sustain a conviction. [CITATION] In particular, “courts
have consistently held that eyewitness testimony that the offender possessed a firearm, combined
with circumstances under which the witness was able to view the weapon, is sufficient to allow a
reasonable inference that the weapon was actually a firearm.” [CITATION] Additionally, video evidence showing a defendant with a gun has been
sufficient to prove the defendant possessed a firearm. [CITATION]
¶ 30 In this case, the record shows that both police officers viewed the recovered weapon during
the bench trial and testified that it was a real firearm. See [CITATION]
36 (a trained and experienced police officer with an unobstructed view provided sufficient
evidence to establish the defendant was armed with a firearm); [CITATION] Further, a 9-
millimeter live round was found in the chamber of the firearm, which also supported the finding
that the recovered weapon was a firearm and not a BB-gun. Although both officers acknowledged
at trial that the gun was initially suspected to be fake or a BB-gun, they later determined that it was
a firearm as defined in the FOID Act. Contrary to defendant’s assertion, Granados specifically
testified that he further examined the firearm at the station “where he had time to view the pistol”
and he explained precisely what led him to believe upon further examination that it was a “real”
firearm. Additionally, there were no inconsistencies in the officers’ testimony, and thus, their
No. 1-22-1562
testimony remained unimpeached. In any case, this court cannot substitute its judgment for that of
the trier of fact regarding witness credibility. As such, we conclude that the trial court’s finding
that all elements of the offense were met was supported by sufficient evidence.
¶ 31 Nonetheless, defendant asserts that, because Granados initially commented that the gun
might not be real or might be a BB gun, his testimony identifying the weapon as a real firearm
should be discounted and is not sufficient to sustain his conviction. Citing [CITATION], defendant specifically contends that, as there was some contrary evidence
that the weapon was a fake gun or a BB-gun, the trial court could not have properly found that it
was a firearm as defined in the FOID Act.
¶ 32 In [CITATION], the defendant was convicted of armed robbery following a bench trial. Id. ¶ 1.
On appeal, the defendant argued that there was no evidence that the item in his hand met the
statutory definition of a firearm where the gun was never recovered and there was no detailed
description of the gun. Id. ¶ 41. The record showed that the victim testified that she saw the
defendant holding a gun and stated “I seen [sic] a whole gun. It was rested on the [counter], his
hand was on it, it was black.” Id. ¶ 51. In concluding that there was sufficient evidence for a rational
trier of fact to find that defendant was armed with a gun that met the statutory definition of a
firearm, the court stated that “[t]here was no contrary evidence presented that the gun was a toy
gun, a BB gun, or anything other than a ‘real’ gun.” Id. ¶ 52. The court based its conclusion on the
victim’s “unequivocal testimony and the circumstances under which she viewed the gun, coupled
with the videotape of the offense and still photograph[.]” Id.
¶ 33 Defendant misreads [CITATION] and improperly broadens its import to effectively conclude
that any contrary evidence that the gun was anything other than a real firearm would result in
insufficient evidence to prove that element. The fact that there is conflicting evidence does not
- 10 - No. 1-22-1562
render it insufficient for conviction. Rather, even where there is conflicting evidence presented at
trial, the trier of fact is free to weigh the evidence, determine the credibility of witnesses, and come
to any rational conclusion as to the sufficiency of the evidence. See [CITATION]. The trial court, as the trier of fact in a bench trial, did just that in this case.
¶ 34 Additionally, defendant’s argument that Granados’s testimony should be discounted in its
entirety based on his statements at the scene is effectively a request for this court to second-guess
the trier of fact’s weighing of the evidence. As we have already made clear, to reweigh the evidence
would usurp the role of the trier of fact. See [CITATION] (The reviewing court
“will not retry the defendant, nor will we substitute our judgment for that of the trier of fact.”).
¶ 35 Even accepting defendant’s seeming invitation to us to reweigh the evidence, his
insufficiency argument would nonetheless fail. Although Granados did state at the scene that the
gun was either fake or a BB-gun, he testified consistently at trial that, after examining the weapon
in greater detail and with better focus at the station, his opinion changed and he determined that it
was, in fact, a real firearm. While viewing the weapon in court, he provided the following reasons
to support his determination: the gun’s serial number had been scratched off; the gun had a pin in
it, which is consistent with real firearms; and the magazine did not fit in the gun simply because it
was broken. We acknowledge, as did the trial court, Granados’s initial uncertainty regarding the
weapon while at the scene. Clearly the trial court was aware of and considered Granados’s initial
speculation and the officers’ failure to submit the firearm for further analysis but ultimately
decided that the officers’ testimony was sufficiently credible to find that defendant possessed a
firearm as contemplated in the FOID Act. In so finding, the court relied on Granados’s testimony
that he investigated the firearm further and determined it was a firearm, as well as Cuevas’s
testimony that the weapon was a 9-millimeter handgun. Our reviewing courts have declined to
- 11 - No. 1-22-1562
“establish a minimum requirement” for proving that a defendant possessed an actual firearm
([CITATION]), and therefore, under the applicable standard of review,
we cannot say that the trial court’s conclusion based on the officers’ testimony at trial was
unreasonable.
¶ 36 Defendant also relies on [CITATION] for support. In [CITATION],
the defendant was convicted of armed robbery. Evidence at trial was to the effect that the arresting
officer drove the robbery victim back to the scene of the offense and the victim pointed out the
defendant, who was then arrested. [CITATION]. As the officer approached the defendant, he observed
him throw something into a bush. [CITATION]. A gun was retrieved from the bush, but it was not offered
into evidence at trial. [CITATION]. However, the officer described it as a “ ‘4.5 BB caliber gun with a three
inch barrel.’ ” [CITATION]. The inventory sheet in the record listed the gun consistently with the officer’s
testimony. [CITATION]. The victim described the gun as “ ‘a black, very portable gun.’ ” On appeal, the
supreme court concluded that the evidence was insufficient to support the trier of fact’s inference
that the “gun” the defendant possessed constituted a dangerous weapon. [CITATION]. This conclusion
was based on the evidence that the gun was in fact a small BB gun and the lack of evidence
regarding whether it was loaded, whether it was brandished as a bludgeon, or regarding its weight
or composition. [CITATION].
¶ 37 This case is distinct from [CITATION] in the obvious fact that the officers in this case, although
originally speculating that the weapon was a BB gun or a fake gun, both testified at trial that it was
a “real” firearm. In [CITATION], there was no dispute that the weapon was, in fact, a BB gun. [CITATION].
Moreover, the issue in [CITATION] was markedly different where the trier of fact was deciding whether a
small BB gun could be considered a dangerous weapon under the armed robbery statute, not
whether the weapon could be considered a firearm under the FOID Act.
- 12 - No. 1-22-1562
[SEGMENT 7]
¶ 38 Rather, the State offers [CITATION], as instructive, and we agree.
In that case, a police officer, who was about 50 feet away, observed the defendant leave the
building she was surveilling “ ‘carrying a silver handgun’ ” and leaving the area in a white van.
Id. ¶ 4. The officer followed the van, which was quickly stopped by other police officers. Id. After
the occupants, which included the defendant and two other individuals, exited the van, a handgun
was recovered from underneath the van near the door from which the defendant exited. At trial,
the officer described the item recovered as “ ‘the same color [and] size of the handgun I saw the
gentleman enter the van with.’ ” Id. ¶¶ 5-8. The officer further testified that she had 12 years of
experience as a police officer and was familiar with handguns. Id. ¶ 6. The gun was not offered
into evidence at trial, and it was not tested for fingerprints. Id. ¶¶ 8-9. The appellate court reversed
the defendant’s conviction for being an armed habitual criminal, reasoning that, in the case of
possessory firearm offenses, the item possessed cannot be inferred to be a firearm from
circumstantial evidence. Id. ¶ 17.
¶ 39 Our supreme court reversed this court and concluded that a rational trier of fact could infer
from the testimony presented *** that [the] defendant possessed a firearm” as defined by the
statute. Id. ¶ 35. This conclusion was based on the clear and unimpeached testimony of the officer
who first observed the gun and another officer’s testimony that the recovered weapon matched the
description and was fully loaded and had to be unloaded when it was recovered. Id. ¶¶ 36-37.
¶ 40 Although there were no initial speculations in [CITATION] regarding the weapon’s
authenticity, we nonetheless find [CITATION] helpful. Notwithstanding Granados’s statements,
greater evidence was presented at trial that the recovered weapon was a firearm. Unlike [CITATION],
here, the recovered weapon was presented in court, along with a live round found in the weapon’s
chamber; the testifying officers viewed the weapon during the bench trial; and Granados
- 13 - No. 1-22-1562
specifically offered several reasons as to why he later determined at the police station that the
firearm was not a BB gun or a fake gun but was, in fact, a real gun. Additionally, in reversing the
appellate court, the supreme court in [CITATION] rejected the notion that there must be some direct
or physical evidence proving that an item is a “real” firearm. This supports our earlier point that
there is no minimum evidentiary requirement for firearms identification, and thus, the trial court
here was free to conclude, based on the evidence presented, that the firearm fell within the statutory
definition, even without a firearms expert or forensic analysis.
¶ 41 Because the credible testimony of experienced police officers can support a finding that a
weapon is a firearm as defined by statute, we do not find the trial court’s finding that defendant
possessed a firearm so unreasonable, improbable, or unsatisfactory that there is a reasonable doubt
as to defendant’s guilt. See [CITATION]. Accordingly, viewing the evidence in the light most favorable to the State, as we must, we conclude that there was
sufficient evidence to support defendant’s conviction for UPWF.
¶ 42 B. Motion to Suppress
¶ 43 Next, defendant argues that the trial court erred in denying his motion to suppress because
the officers relied solely on an anonymous tip and lacked reasonable suspicion or probable cause
to stop, search, and arrest defendant. Defendant relies on [CITATION], as
well as [CITATION], for support of his argument.
¶ 44 In response, the State contends that the stop of defendant was permissible as it was
predicated on reasonable suspicion created by the anonymous 911 call that provided a detailed
description of the suspect. For support, the State cites [CITATION], where
our supreme court recently assessed a stop based on an anonymous 911 call. The State also asserts
that the officers had valid probable cause to arrest defendant based on the weapon recovered from
- 14 - No. 1-22-1562
his person. For the reasons that follow, we agree with the State and conclude that the trial court
properly denied the motion to suppress.
¶ 45 The standard for reviewing a trial court’s ruling on a motion to suppress is twofold. First,
the trial court’s factual findings and credibility determinations are subject to the manifest weight
of the evidence standard. [CITATION]. A finding is against the
manifest weight “ ‘only when an opposite conclusion is apparent or when findings appear to be
unreasonable, arbitrary, or not based on evidence.’ ” [CITATION],
¶ 21 (quoting [CITATION]). This deferential standard is based
on the supposition that the trial court is in “a superior position to determine and weigh the
credibility of the witnesses, observe the witnesses’ demeanor, and resolve conflicts in their
testimony.” [CITATION]. Second, the trial court’s ultimate legal ruling, i.e. whether
the evidence should be suppressed, is reviewed de novo. Id.
¶ 46 The fourth amendment to the United States Constitution provides the “right of the people
to be secure in their persons, houses, papers and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const., amend. IV. The reasonableness requirement of the
fourth amendment generally requires a warrant supported by probable cause. [CITATION].
“Probable cause exists where the facts and circumstances, considered as a whole, are
sufficient to justify a belief by a reasonably cautious person that the defendant is or has been
involved in a crime.” [CITATION], ¶ 25.
¶ 47 An exception to the warrant requirement exists where officers conduct an investigatory
stop, also known as a Terry stop, based on reasonable suspicion that a crime has been or is about
to be committed. [CITATION], ¶ 8; see [CITATION] (setting forth the principles for determining the reasonableness of a temporary investigative
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No. 1-22-1562
stop). An officer may make an investigatory stop of any person if he or she “reasonably infers
from the circumstances that the person is committing, is about to commit or has committed” a
criminal offense. 725 ILCS 5/107-14(a) (West 2020). The relevant question is whether the facts
available to the officer would warrant a person of reasonable caution to believe that the action
taken was appropriate. [CITATION]. This analysis
necessitates a balance of the need for the seizure against the invasion that the seizure entails. [CITATION].
¶ 48 Further, “reasonable suspicion is a less exacting standard than probable cause,” and an
investigatory stop may be justified even “when no violation of the law is witnessed, so long as it
does not constitute a mere hunch.” [CITATION], ¶ 26. An officer “must
point to specific, articulable facts that, taken together with rational inferences, reasonably warrant
the intrusion.” Id. As relevant here, where the investigatory stop is based on information from a
third party, the tip must be reliable and allow “an officer to reasonably infer that a specific person
was involved in criminal activity.” [CITATION]. In
assessing the reliability of a tip, the court must consider whether the officers’ observations
corroborate the tip, whether the informant explains the basis for his knowledge of the tip, and the
duration of time between receiving the tip and acting upon it. [CITATION].
¶ 49 Here, the State satisfied its burden of establishing that the officers’ investigatory stop was
appropriate based on the information available to them at that time. Both officers testified that they
received a dispatch call relaying a 911 call that a person was “flashing a gun” at a gas station and
this person was wearing a white T-shirt, black pants, and orange, green, and purple sneakers. This
dispatch call was included in the record and played during the bench trial. Although the officers
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``` No. 1-22-1562
presumed that the report was based on the 911 caller’s personal observation, the call did not
explicitly make that clear. Less than two minutes after the dispatch call, the officers arrived at the
gas station and immediately observed defendant who precisely matched the description and,
according to Cuevas, no one else at the gas station matched the description. The body cam footage
also showed that defendant matched the description including the distinctively colored sneakers.
This observation of a person matching the description corroborated the 911 call and from that an
inference of credibility was warranted. [CITATION], ¶ 30; see also [CITATION]).
¶ 50 The officers then detained defendant and, based on the information gleaned from the 911
call, they began handcuffing him and asked if he had anything on his person. Under these
circumstances, the handcuffing was reasonable as the officers already reasonably suspected, based
on the 911 call and defendant’s matching description, that he was armed with a weapon. See
[CITATION] (handcuffing a person does not necessarily convert a Terry stop into an
arrest). When defendant responded that he had his protection, which Cuevas understood to mean
[SEGMENT 8]
a weapon, the officers lifted his shirt, revealing a gun in his waistband. See [CITATION] (“A weapons frisk is valid only when the officer has reason to believe that
a particular individual is armed and dangerous.”); see also [CITATION] (Police officers “are not required to risk their safety by assuming that a suspect will
submit peacefully to questioning.”). Based on this, the trial court determined that the investigatory
stop was proper, and there is nothing in the record that persuades us that an opposite conclusion
was apparent or that the court’s decision was arbitrary or unreasonable. See [CITATION]
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Ill. App. 3d 26, 31 (2000) (the scope of the investigation must be reasonably related to the
circumstances that justified the police interference and the investigation must last no longer than
necessary to effectuate the purpose of the stop); see also [CITATION]
¶ 51 In coming to this conclusion, we have considered the cases upon which each party relies
for support of their respective positions as to the reliability of the 911 call.
¶ 52 We begin with defendant’s request that we follow the decision of [CITATION], to conclude that the 911 call here did not provide the officers with reasonable suspicion
to justify the investigatory stop. In [CITATION], an anonymous caller reported to the police that a young
black male wearing a plaid shirt was standing at a bus stop carrying a gun. Id. at 268. No audio
recording of the tip was provided, and nothing was known about the caller. Id. It was also unknown
how much time after receiving the call officers were instructed to respond. Id. When the officers
arrived at the bus stop, they observed an individual matching the description, and although the
defendant did not make any furtive movements and did not visibly appear to have a gun, the
officers detained him, frisked him, and seized a gun from his pocket. Id.
¶ 53 The Supreme Court held that the anonymous tip by itself was insufficient to justify the
Terry stop. Id. at 272. In determining that the tip did not give rise to reasonable suspicion, the
Court specified its deficiencies: there was no predictive information, the informant was
unaccountable, and the informant did not explain how he had obtained this information regarding
a concealed weapon. The Court thus reasoned that an anonymous tip must be reliable in “its
- 18 - No. 1-22-1562
tendency to identify a determinate person” and “its assertion of illegality” and those requirements
were not satisfied in the case before it. Id. at 272.
¶ 54 In contrast to J.L., the tip here was slightly more specific in its description of the person
including both the color of the person’s pants and the distinctive coloring of his sneakers and the
tip was corroborated where a person matching the description was observed only one to two
minutes after the dispatch call. Additionally, the use of the emergency system for the anonymous
caller in this case is a significant distinction from the call made in J.L.
¶ 55 Finally, there was an assertion of suspected illegality in the call here that was not present
in J.L. Here, the caller stated that the person was “flashing a gun” at the gas station. The applicable
definitions of “flash” in this context are: “to make known or cause to appear with great speed,” “to
display obtrusively and ostentatiously,” or “to expose to view usually suddenly and briefly[.]”
Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/flash (last
visited September 9, 2024). The fact that the caller used the word “flashing” suggests that the
person was doing so repeatedly or consistently, and it is significant that the person was doing this
in a public place. Even if the person had both a FOID card and a CCL, exposing the handgun in
public would constitute a violation of the Concealed Carry Act (430 ILCS 66 et seq. (West 2020)).
See [CITATION]. From the foregoing, it would be reasonable
to infer that (1) the caller personally observed this behavior and, (2) the person “flashing a gun” is
not a law-abiding citizen in lawful possession of a firearm. See [CITATION]. In contrast, the caller in J.L. merely stated the
person at the bus stop was in possession of a gun. Thus, it was unclear how a bystander could have
- 19 - No. 1-22-1562
knowledge of a concealed weapon and there was no report of conduct that suggested illegal
activity. For these reasons, we find J.L. distinguishable.
¶ 56 Defendant also relies on [CITATION]. There, a different
panel of this district found that an “effectively anonymous” tip “did not support a finding of
reasonable suspicion” and “reverse[d] the trial court’s denial of [the defendant’s] motion to
suppress.” Id. ¶ 18. The tip in [CITATION] came from a Chicago Park District security guard who
informed a Chicago police sergeant that a man, “described as black, about five-and-a-half feet tall,
wearing a purple shirt and black jeans” was in the park with a gun in his pocket. Id. ¶ 1. That
sergeant then relayed this information to two Chicago police officers, who found someone
matching that description within two to three minutes. Id. Those officers conducted a Terry stop
and frisk on the defendant and recovered a firearm. Id. ¶ 2.
¶ 57 The tip in [CITATION] has one significant commonality with the tip in J.L., which is that the
tipster did not provide any basis for their knowledge that a weapon was concealed on either of the
respective defendants. That commonality is not present here where the 911 caller specifically
stated that the individual was “flashing a gun” outside of a gas station and the dispatch call also
relayed that same phrasing to the responding officers in this case. Certainly, this does not constitute
demonstrative proof of illegality. See [CITATION], ¶ 47 (quoting [CITATION]) (Reasonable suspicion does not require police
to “ ‘rule out the possibility of innocent conduct.’ ”). However, it is more sufficient than the mere
statements in [CITATION] and J.L. of a person in possession of a gun without explaining how the tipster
knew that information and how that conduct implicated potential criminal activity.
¶ 58 The State relies, instead, on [CITATION], a recent case in which our
supreme court assessed the reliability of an anonymous tip. There, officers received a dispatch,
- 20 - No. 1-22-1562
like here, from the OEMC stating that an anonymous caller reported that a white male wearing a
black jacket and hooded sweatshirt was “swinging” at two females and that he had a gun on him.
[CITATION] The caller identified the intersection at which the group was located. [CITATION] Police arrived at
the intersection two or three minutes after receiving the dispatch but did not see anyone matching
the individuals described. [CITATION] Another dispatch call came through, relaying additional
information from the caller that the group was walking two blocks north of the intersection. [CITATION]
The officers relocated to that area within two to four minutes and observed a white male matching
the caller’s description, who was holding the right side of his waistband. [CITATION] The two women were
not seen nearby, and the testifying officer did not see the defendant violate any laws. [CITATION] The officer
detained the defendant, and based on the call and his own observations, he patted down the
defendant for his own safety and recovered a revolver from his waistband. [CITATION] The circuit court
denied his motion to suppress, and this court affirmed. [CITATION]
¶ 59 Our supreme court agreed, holding that the officers had the necessary reasonable suspicion
for an investigatory stop. [CITATION] Relying on [CITATION], the
court noted three indicia of reliability for anonymous tips: when the caller claims eyewitness
knowledge of criminal activity; when the time between the suspected criminal activity and the
officers’ response is brief; and when the caller uses the 911 emergency system to make their report.
[CITATION] The court found each of these present in the case before it where the tip was made through
the 911 system; it was a reasonable inference that the tipster observed the suspected criminal
activity firsthand as the tipster gave updated information through a second call; and the information
was relayed shortly after it was observed. [CITATION] The court further pointed to the officer’s
corroboration of the tip where he saw someone matching the description and he observed what
appeared to be an attempted concealment of a firearm. [CITATION]
- 21 - No. 1-22-1562
¶ 60 Additionally, the court rejected an attempt to analogize the defendant’s case to that of [CITATION] ¶ 31. The court pointed out several distinctions between the case before it and the facts in [CITATION]:
(1) the officer personally observed conduct that led him to believe that the defendant was
concealing a firearm; (2) the tip came through the 911 system; (3) the tipster seemed to have
[SEGMENT 9]
firsthand knowledge of the suspected criminal activity; and (4) the tip involved more than just the
possession of a firearm as the tipster also stated that the individual was “swinging at” two females.
[CITATION]. As we have explained above, we find the facts before us provide greater indicia of reliability
than those in [CITATION]. Indeed, our facts share more commonalities with [CITATION] because the tip came
through the 911 system, it involved more than just possession of a firearm where the caller stated
the person had been “flashing a gun” at the gas station, and that statement suggested that the caller
personally observed the flashing of the weapon, even though not stated explicitly.
¶ 61 We also find [CITATION], to which the State also cites, instructive. The 911 caller in
[CITATION] reported that another driver ran her off the road and she identified the make, model,
license plate number, the mile marker, and the direction of travel. [CITATION]. The police found
the matching car and pulled the defendant over about 15 minutes later. [CITATION]. The Supreme
Court found the 911 call there distinguishable from the unknown tip in [CITATION]. In contrast to [CITATION], the
caller had firsthand knowledge of the criminal activity, the officers’ observation of the car only a
brief time later suggested the caller’s reliability, and the caller exposed herself to identification
and accountability by using the 911 system. [CITATION]. Nonetheless, the Court admitted that
it was a “close case.” [CITATION]. For the same reasons stated in regards to [CITATION], we find [CITATION]
sufficiently analogous. Although we may consider this to also be a “close case,” it is not so close
that an opposite conclusion is apparent.
- 22 - No. 1-22-1562
¶ 62 Defendant also argues that “predictive information” is required, but we are unaware of, and
defendant fails to point us to, a case stating that predictive information is a mandatory requirement
for anonymous tips. Rather, it seems clear from [CITATION] that it is but one among
several indicia of reliability. As our supreme court stated in [CITATION]:
“[D]eficiency or uncertainty in the reliability of the informant can be compensated for by a strong
level of detail and corroboration of the content of the tip, and vice versa.” Accordingly, courts
must weigh a number of factors and the absence or presence of one is not necessarily determinative
of the outcome.
¶ 63 Finally, we agree with defendant’s assertion that 911 calls are not per se reliable, and we
do not believe that [CITATION] or [CITATION] stand for the proposition that they are. Rather, 911 calls
merely have a stronger indicia of reliability as compared to unknown calls made outside the
emergency system because they are not traceable and do not carry the possibility of penalty if
determined to be a false report. See [CITATION] (quoting [CITATION] and
explaining why 911 calls have a greater indicator of veracity). But, this is just one indicator of
reliability. In addition, here, the caller identified activity that could reasonably be suspected as
criminal where the person was “flashing a gun”; the description of the person was sufficiently
specific, particularly with the distinctive coloring of the sneakers; the description was corroborated
where the only person to match the description was defendant; and the officers acted upon the
dispatch call and identified the person matching the description in less than two minutes. We
acknowledge that it is not certain whether the 911 caller personally observed the suspicious
activity, but we do not consider this one factor to be determinative in this instance where other
factors weigh in favor of reliability. Thus, under our standard of review here, we cannot say that
the court’s determination that the call was reliable was against the manifest weight of the evidence.
- 23 - No. 1-22-1562
¶ 64 Defendant also argues that, because the officer initially believed the weapon to be a BB-
gun, the officers could not have had a reasonable belief that defendant had committed a crime and
therefore the officers lacked probable cause to arrest him. However, this argument does not
comport with Illinois courts’ functional application of probable cause, which “does not require a
law enforcement officer to ‘ “know” that certain items are contraband or evidence of a crime.’ ”
[CITATION].
¶ 65 “Probable cause is a fluid concept that turns on the assessment of probabilities in particular
factual contexts; it is not readily, or usefully reduced to a neat set of legal rules.” [CITATION]. It “
‘does not demand any showing that [a reasonable belief] be correct or more likely true than false.’
” [CITATION] (quoting [CITATION]) (plurality op.)). At the time of
the arrest, the officers believed that defendant had engaged in criminal activity by exposing a
firearm in public, the officers did not find a FOID card or CCL in defendant’s wallet, defendant
did not inform them that he possessed either, and the officers were not certain as to what type of
firearm had been recovered. These facts and circumstances, considered as a whole, are sufficient
to justify a belief that defendant had committed a crime. See [CITATION],
¶ 25; see also [CITATION], ¶ 30 (“[T]he existence of a possible
innocent explanation *** did not necessarily negate probable cause.”). Thus, the officers had
probable cause to effectuate an arrest. See [CITATION] (probable
cause rests on “commonsense considerations, and the calculation concerns the probability of
criminal activity, rather than proof beyond a reasonable doubt”).
¶ 66 Accordingly, we conclude that the trial court did not err in denying defendant’s motion to
suppress the evidence recovered during the officers’ stop and search of defendant.
¶ 67 C. Constitutional Challenge
- 24 - No. 1-22-1562
¶ 68 Defendant also argues that his conviction for UPWF violates the second amendment of the
Constitution as applied to him. He offers as support the United States Supreme Court’s decision
in [CITATION]. In particular, defendant argues
that the Illinois statute for UPWF is unconstitutional as applied to him because there is “no
historical tradition of prohibiting non-violent persons like [him] from possessing firearms.”
¶ 69 We first address the State’s contention that defendant’s as-applied challenge is forfeited
because it was raised for the first time here on appeal. Generally, the failure to raise an issue in the
trial court results in forfeiture of the issue in the reviewing court. [CITATION], ¶ 58. Facial constitutional challenges may be raised at any time; however, as-
applied constitutional challenges cannot. See [CITATION]. A
facial challenge alleges that the statute is unconstitutional under any set of facts, but an as-applied
challenge alleges only that the statute violates the constitution as applied to the particular set of
facts and circumstances of the case at bar. Id. ¶ 36. Because as-applied challenges are dependent
on the particular facts of the individual, “it is paramount that the record be sufficiently developed
in terms of those facts and circumstances for purposes of appellate review.” Id. ¶ 37. However,
where “[a]ll facts and circumstances to decide the defendant’s claim *** are already in the
record[,]” the claim may be raised and reviewed on appeal for the first time. [CITATION], ¶ 32, overruled on other grounds by [CITATION], ¶ 42; see
also [CITATION], ¶¶ 12-13; but see [CITATION], ¶ 35 n. 11 (stating that Thompson is “completely inapposite because it concerns the
special rules governing a section 2-1401 petition”).
¶ 70 The State asserts that the record in this case does not contain all the facts and circumstances
necessary to decide defendant’s constitutional challenge. According to the State, defendant’s
- 25 - No. 1-22-1562
second amendment claim turns on whether he is a non-violent felon or was simply carrying the
firearm for his protection; and these issues were not litigated below. We disagree with the State.
The record contains defendant’s criminal history, and it is unclear from the State’s brief precisely
what information it would have presented were this issue litigated below. We therefore consider
the merits of defendant’s as-applied challenge on appeal. See [CITATION].
¶ 71 That said, as we explain below, we find that defendant’s as-applied constitutional challenge
fails.
¶ 72 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. Here, the statute under which defendant was convicted provides that it is a felony to
“knowingly possess on or about [one’s] person or on [one’s] land or in [one’s] own abode or fixed
place of business any *** firearm *** if the person has been convicted of a felony under the laws
of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a). According to defendant, under
[CITATION], “Illinois laws criminalizing the possession of firearms by all felons cannot be constitutional
[SEGMENT 10]
in all applications.” The State responds that “defendant misreads both [CITATION] and the Second
Amendment as conferring an unqualified entitlement to possess firearms without restriction.”
¶ 73 Prior to [CITATION], a two-part test was utilized for evaluating the constitutionality of a firearm
regulation under the second amendment in accordance with [CITATION], and [CITATION]. In [CITATION], the Court was
tasked with determining the constitutionality of New York’s firearm licensing regime, which
required applicants to establish that “proper cause” existed for licensure. [CITATION].
- 26 - No. 1-22-1562
The Court ultimately held that the regime was unconstitutional, reasoning that the “proper cause”
requirement allowed the government too much discretion to deny a license to an applicant seeking
to possess a firearm out of a generalized desire for self-defense. [CITATION]. In so concluding, the
Court held that the test used since Heller was “one step too many” and rejected any means-end
analysis in the context of the second amendment. [CITATION]. Instead, the Court insisted upon a
test where the “plain text” and history would be the sole considerations. [CITATION]. At the first step,
an individual’s conduct is presumptively protected by the constitution if the conduct is covered by
the second amendment’s plain text. [CITATION]. Second, if the individual’s conduct is covered by the second
amendment, then “the government must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.” [CITATION].
¶ 74 With respect to the Bruen test, defendant asks that this court follow the reasoning of
[CITATION], for the first step of the Bruen test. There, the defendant was
convicted of being an armed habitual criminal and his prior qualifying felony convictions included
manufacture or delivery of narcotics and unlawful possession of a weapon by a felon. [CITATION].
On appeal, the defendant argued that the armed habitual criminal statute violated the second
amendment as applied to him. [CITATION]. As to the first step, the court first determined that the plain
text of the second amendment protects a person’s right to keep and bear arms and thus the
defendant’s possession of a firearm was “ ‘presumptively constitutional.’ ” [CITATION] (quoting Bruen,
[CITATION]). The court noted that, at the first step, the defendant’s status as a felon was
“irrelevant” to the analysis. [CITATION].
¶ 75 As of this writing, only two cases have agreed with [CITATION]’ reasoning for the first step of
the Bruen test, i.e. that felons are included in the plain text of the second amendment. See [CITATION] (adopting the reasoning of [CITATION] in finding that “the
- 27 - No. 1-22-1562
second amendment’s plain language does not exclude felons”); [CITATION], ¶ 8 (following Travis). Other than Brooks, Travis and Sherrod, the jurisprudence
in this court, in cases involving both facial and as-applied constitutional challenges, is that felons
are excluded from the plain text of the second amendment and thus the Bruen test does not apply.
See [CITATION], ¶ 23 (following the majority of cases in
finding that Bruen does not apply to convicted felons); [CITATION], ¶¶ 20-21 (finding the defendant’s facial constitutional challenge to the armed habitual
criminal statute failed because Bruen does not apply to laws regulating firearm possession by
felons); [CITATION], ¶ 68 (finding that Bruen does not apply to
felons); [CITATION], ¶ 21 (finding the second amendment only
protects law-abiding citizens and therefore Bruen did not apply to the defendant’s facial
constitutional challenge to the UPWF statute); [CITATION],
¶¶ 21-22 (declining to follow [CITATION] and instead finding that Bruen did not apply to the
defendant’s as-applied constitutional challenge to UPWF statute); [CITATION], ¶¶ 16-17 (declining to follow [CITATION] and finding that the defendant’s facial
challenge to the UPWF statute failed); [CITATION], ¶ 16 (finding
that Bruen did not indicate an intent to expand the second amendment’s protection to those who
are not law-abiding citizens); [CITATION], ¶ 24 (finding that the
second amendment’s language protects only law-abiding citizens); [CITATION], ¶¶ 152-53 (finding that Bruen did not apply to the defendant’s as-applied
constitutional challenge to the UPWF statute); [CITATION], ¶ 37
(finding the Bruen test only applies to law-abiding citizens, not felons); [CITATION], ¶¶ 37-39 (finding Bruen did not apply to the defendant’s as-applied
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====== End of Part ====== No. 1-22-1562
constitutional challenge under the second amendment of the unlawful use of a weapon by a felon
statute).
¶ 76 Cases rejecting Brooks first reason that the Bruen Court made clear that its test did not
apply to felons where the Court’s holding was limited to “law-abiding citizens,” a point repeated
in the opinion no fewer than 18 times. See generally [CITATION] (the six justices in the
majority repeated the phrase “law-abiding” 18 times in their majority opinion and concurrences);
see also [CITATION], ¶ 153 (collecting federal district court cases finding
that the implication of [CITATION] is that the second amendment is limited to law-abiding citizens).
Further, in his concurring opinion in [CITATION], Justice Kavanaugh quoted [CITATION], stating: “ ‘[N]othing
in our opinion should be taken as to cast doubt on longstanding prohibitions on the possession of
firearms by felons ***.’ ” [CITATION] (Kavanaugh, J., concurring, joined by Roberts,
C.J.) (quoting [CITATION])). This same position was endorsed in Justice Alito’s
concurrence, wherein he stated that [CITATION] does not “disturb[ ] anything that we said in [CITATION] or
[CITATION] *** about restrictions that may be imposed on the possession of carrying guns.” [CITATION]
(Alito, J., concurring). By this, Justice Alito alludes to a footnote in [CITATION] where the
Court referred to prohibitions on the possession of firearms by felons as “presumptively lawful
regulatory measures[.]” [CITATION]; see also [CITATION]
(reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)). Finally,
we point out that the Supreme Court’s recent decision in [CITATION], confirmed once
again that “prohibitions *** on the possession of firearms by ‘felons and the mentally ill’ are
‘presumptively lawful.’ ” [CITATION] (quoting [CITATION]).
Based on the foregoing, we find that [CITATION] does not apply to defendant, as
- 29 - No. 1-22-1562
he is a convicted felon and not a law-abiding citizen. See [CITATION]
(“Bruen just does not apply” to those who are not law-abiding).
¶ 77 Further, any attempts by the defendants in recent cases to cast the language in [CITATION]
as nonprecedential dicta—which defendant also argues in this case—have been found
unpersuasive. See [CITATION] Either
the language has not been considered dicta pursuant to the Eleventh Circuit Court of Appeals’
decision in [CITATION], which rejected such
a proposition as to Heller’s text, or it is considered judicial dicta from the Supreme Court and
should be afforded considerable weight in the lower courts, pursuant to [CITATION] We agree
that the language in the foregoing Supreme Court cases should be followed because “[e]ven obiter
dictum of a court of last resort can be tantamount to a decision and therefore binding in the absence
of a contrary decision of that court.” [CITATION]; see also [CITATION]
(stating it will heed the Supreme Court’s statement regarding firearms
prohibitions for felons even if dicta). Accordingly, as we concluded in our recent decision in
[CITATION] “[w]e presume that the Supreme Court’s inclusion of ‘law-abiding’ in the holding is not
superfluous or irrelevant, especially given the Court’s repeated use of the phrase throughout the
Bruen opinion, as well as its prior decisions.” [CITATION]; see also
[CITATION] (“[T]he Court’s language in Bruen supports the validity
of its dictum in Heller.”).
¶ 78 Even were we to find that the Bruen test applies to felons like defendant, we would
nonetheless find that defendant’s as-applied constitutional challenge to the UPWF statute fails at
- 30 - No. 1-22-1562
the second step. Defendant argues that there is no historical basis for prohibiting a person like him
from exercising his second amendment right based on a prior non-violent drug conviction.
[SEGMENT 11]
However, thus far, no case from this court has concluded that prohibition on firearms possession
for felons is unconstitutional as applied to nonviolent felons, and defendant has failed to convince
us to be the first. As we explain below, we conclude that the UPWF statute passes constitutional
muster as applied to defendant.
¶ 79 In [CITATION] and [CITATION], the Second District rejected this same argument for two reasons. First,
the court in both cases pointed out that the Supreme Court did not place any qualifiers on the term
“felons” or make any distinction between violent and non-violent felons in either Heller or
McDonald. [CITATION], ¶ 27;
see also [CITATION], 913 F. 3d 152, 159 (D.C. Cir 2019) (observing that “[f]elonies
encompass a wide variety of non-violent offenses, and we see no reason to think that the [United
States Supreme Court] meant ‘dangerous individuals’ when it used the word felon” in Heller).
Second, the court in both cases agreed with the Brooks court’s conclusion that there was a
sufficient historical tradition to support our legislature’s prohibition of firearm possession by
convicted felons. [CITATION], ¶ 27.
¶ 80 Turning to [CITATION], we note that defendant disagrees with the [TARGET
CITATION] court’s conclusion as
to the historical analysis and argues that the court failed to cite “any law from around the time the
Second Amendment was adopted that permanently disqualified felons from possessing
firearms[.]” We reject defendant’s invitation to depart from [CITATION] as to the second step of the
Bruen test.
- 31 - No. 1-22-1562
¶ 81 At the second step, the court reviewed the historical record of restrictions for possession of
firearms. [CITATION]. The court then concluded that “such
categorical restrictions [were] inextricably linked to the notion of ‘law abiding citizens.’ ” [CITATION].
In particular, the court found that there was “widespread acceptance of the legislatures’ authority
to disarm felons” during the founders’ era and the “majority of legal historians” agreed that the
right to bear arms “turned on one’s law-abiding character.” [CITATION]. Additionally, the court
specifically addressed the minority view “that traditionally regulation of firearms possession was
an effort to address a risk of dangerousness *** such that it would not apply to the defendant as a
nonviolent felon[.]” [CITATION]. The court found that there was no historical requirement that an
individual be deemed dangerous before prohibiting his or her from possessing a firearm and the
more recent legislative history supported the same conclusion. [CITATION]. Ultimately, the
court held that the armed habitual criminal statute was “consistent with the national historical
tradition of firearm regulation” and, therefore, was constitutional as applied to the defendant. [CITATION].
¶ 82 We do not find defendant’s argument that the court failed to cite “any law from around the
time the Second Amendment was adopted that permanently disqualified felons from possessing
firearms” persuasive. The Supreme Court in Rahimi reiterated that the legislative precursors to a
challenged regulation need not be a “ ‘dead ringer’ ”; rather, they must only be considered “
‘analogous enough to pass constitutional muster.’ ” [CITATION]. Moreover, the Rahimi Court explained that its recent second
The court also reviewed Supreme Court precedent on the prohibition of firearm possession for
felons, particularly the Supreme Court’s reliance on the phrase “law-abiding citizens.” [CITATION]. This is the
same precedent discussed and relied upon for the first step of the Bruen test; however, the [CITATION]
utilizes that same rationale only in the second step. See infra ¶¶ 76-79.
- 32 - No. 1-22-1562
amendment precedents “were not meant to suggest a law trapped in amber” and the second
amendment “permits more than just those regulations identical to ones that could be found in
1791.” Id. at ___, 144 S. Ct. at 1897-98. In accordance with the Supreme Court’s requirements,
the Brooks court aptly traced the historical roots of prohibitions on firearm possession for felons
back to the Founding Era and found sufficient support for firearms restrictions for felons, such as
the armed habitual criminal statute at issue there and the UPWF statute before us.
¶ 83 Accordingly, of our own volition, we find no reason to depart from the well-reasoned
decisions set forth above, and defendant has not convinced us that there is any reason to do so.
Thus, we conclude that the UPWF statute satisfies the second step under Bruen. Specifically, we
agree that, historically, legislatures have categorically banned individuals from possession of
firearms based on lawfulness, a felon’s dangerousness has not been a consideration in prohibiting
the felon from possessing a firearm, and the Supreme Court has also made no such distinction in
implicitly approving bans on firearms possession for felons. As such, defendant’s nonviolent
criminal history does not affect the constitutionality of the UPWF statute and thus the statute is
constitutional as applied to defendant. See also [CITATION]
(following [CITATION] in concluding that the UPWF statute was constitutional as applied to the
defendant).
¶ 84 III. CONCLUSION
¶ 85 For the reasons stated, we affirm the judgment of the circuit court.
¶ 86 Affirmed.
- 33 -
2024 IL App (1st) 230606-U
FIFTH DIVISION
September 13, 2024
No. 1-23-0606
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 CR 7288
)
MONTRICE AVERY, ) Honorable
) Steven G. Watkins,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court.
Justices Mitchell and Navarro concurred in the judgment.
ORDER
¶1 Held: The trial court judgment is affirmed where (1) defendant’s as-applied constitutional
challenge is forfeited, and (2) the unlawful use or possession of a weapon by a felon
statute is not unconstitutional on its face.
¶2 Following a jury trial, defendant Montrice Avery was found guilty of unlawful use or
possession of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2020)) and sentenced to
two years in prison. On appeal, Mr. Avery argues that his conviction is unconstitutional both
facially and as applied to him under [CITATION]. We affirm. No. 1-23-0606
¶3 I. BACKGROUND
¶4 Mr. Avery was charged by information with multiple offenses arising from his possession
of a firearm on July 7, 2020. The State proceeded on one count of UUWF premised upon Mr.
Avery having been previously convicted of felony escape in 2012.
¶5 At trial, Chicago police officer Michael Mendez testified that on July 7, 2020, he and his
partner, Officer Edgar Escobar, responded to a call regarding “a person with a gun” near Central
Avenue and West End Avenue in Chicago. When they arrived in the area in a marked squad
vehicle, Officer Mendez saw Mr. Avery, whom he identified in court, walking northbound on
Central Avenue. Mr. Avery “was manipulating” zippers on a bag on his chest. Officer Mendez
ordered Mr. Avery to “keep his hands up,” but Mr. Avery fled. Officers Mendez and Escobar
pursued on foot and eventually, Officer Escobar “secure[d]” Mr. Avery.
¶6 The State introduced Officer Mendez’s body camera footage, which is in the record on
appeal and has been viewed by this court. In the footage, Officer Mendez chases Mr. Avery into a
gangway. As Mr. Avery enters the gangway, a black handgun falls to the ground from his person.
¶7 Officer Escobar testified consistently with Officer Mendez regarding their encounter with
Mr. Avery. The State introduced Officer Escobar’s body camera footage, which depicted the same
events.
¶8 Officer Gonzalez testified that he followed Officers Mendez and Escobar and saw a black
handgun drop from “in front of” Mr. Avery. Officer Gonzalez recovered the firearm, which was
loaded with a live round chambered.
¶9 The State entered a stipulation that Mr. Avery had a prior felony conviction. The State
informed the judge that the conviction involved a 2012 escape from electronic monitoring, but the
specific felony was not communicated to the jury.
No. 1-23-0606
¶ 10 The jury found Mr. Avery guilty of UUWF. The court denied Mr. Avery’s motion and
[SEGMENT 12]
amended motion for a new trial.
¶ 11 Mr. Avery’s presentence investigative report (PSI) listed nine prior convictions from 1998
through 2017, including seven convictions for possession of cannabis or other controlled
substances, one for obstructing identification, and the stipulated escape from electronic
monitoring. After a hearing, the court sentenced Mr. Avery to two years in prison.
¶ 12 II. JURISDICTION
¶ 13 Mr. Avery was sentenced on February 27, 2023, and timely filed his notice of appeal on
March 28, 2023. We have jurisdiction over this appeal under article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)
and Rule 606 (eff. Mar. 12, 2021), governing appeals from final judgments in criminal cases.
¶ 14 III. ANALYSIS
¶ 15 On appeal, Mr. Avery argues that the UUWF statute is unconstitutional on its face under
the second amendment to the United States Constitution because it does not comply with the
framework established by the United States Supreme Court in [CITATION]. He also argues that the
UUWF statute is unconstitutional as applied to him because his prior convictions do not establish
that he was the type of “presently-dangerous individual” for whom the framers of the Constitution
permitted disarmament.
¶ 16 Here, Mr. Avery was convicted of UUWF under section 24-1.1(a), which provides that
“[i]t is unlawful for a person to knowingly possess on or about his person *** any firearm *** if
the person has been convicted of a felony.” 720 ILCS 5/24-1.1(a) (West 2020). Relevant here, Mr.
Avery was convicted of felony escape from electronic monitoring in 2012.
¶ 17 The constitutionality of a statute is a matter of law, which we review de novo. [CITATION]
No. 1-23-0606
[CITATION], ¶ 11. In analyzing a challenge to the constitutionality of a statute, “we
begin with the presumption that the statute is constitutional and that, if reasonably possible, this
court must construe the statute so as to affirm its constitutionality and validity.” Id.
¶ 18 A party raising a facial challenge to the constitutionality of a statute “faces a particularly
heavy burden,” because “[a] statute will be deemed facially unconstitutional only if there is no set
of circumstances under which the statute would be valid.” [CITATION], ¶ 10. Therefore, a facial challenge fails if any situation exists where the statute could be validly
applied. [CITATION], ¶ 25. In contrast, an as-applied challenge “requires a
showing that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” [CITATION], ¶ 36.
¶ 19 The second amendment provides: “A well regulated Milita, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], holding that the second amendment elevated “the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” [CITATION], at 635.
The second amendment applies to the States through the fourteenth amendment of the United
States Constitution. [CITATION], 778 (2010).
¶ 20 Under [CITATION], courts developed a two-step test to assess second amendment
challenges to firearm regulations. See [CITATION], ¶ 11. First, the
government could justify the regulation by establishing whether the regulated activity fell outside
the scope of the second amendment as it was originally understood. Id. If the conduct fell beyond
the second amendment’s original scope, it was “categorically unprotected.” Id. Otherwise, the
court would progress to the second step and conduct a “means-end analysis” where the court
No. 1-23-0606
weighed the severity of the regulation against the ends the government sought to achieve in
enacting the regulation. Id.
¶ 21 In Bruen, the United States Supreme Court announced a new analytical framework for
evaluating the constitutionality of firearm regulations under the second amendment. [CITATION], ¶ 68 (citing [CITATION]). Under Bruen, a court must
first determine whether “the Second Amendment’s plain text covers an individual’s conduct.”
[CITATION], ¶ 69. If it does, then the Constitution
“presumptively protects that conduct” and the government must justify the regulation by showing
that it is consistent with the nation’s historical tradition of firearm regulation. [CITATION], ¶ 69. To make this showing, the government must point to
historical precedent which establishes what the founders understood the second amendment to
mean. [CITATION], ¶ 70.
¶ 22 As an initial matter, the State argues that Mr. Avery forfeited his as-applied constitutional
challenge because he raises it for the first time on direct appeal. See [CITATION], ¶ 32, overruled on other grounds by [CITATION]) (“[A] defendant
must present an as-applied constitutional challenge to the trial court in order to create a sufficiently
developed record.”).
¶ 23 We agree with the State, as the record is not sufficiently developed for us to review Mr.
Avery’s as-applied constitutional challenge. “[A]s-applied constitutional challenges are dependent
on the specific facts and circumstances of the challenging party and, therefore, it is paramount that
the record be sufficiently developed in terms of those facts and circumstances for purposes of
appellate review.” (Internal quotation marks omitted.) [CITATION], ¶ 27.
Here, Mr. Avery premises his as-applied challenge on the contention that the founders permitted
No. 1-23-0606
disarmament only for persons who were presently dangerous, not for persons who were mere
felons. He argues his prior convictions do not establish he is the type of presently dangerous
individual for whom the framers intended disarmament.
¶ 24 However, at trial, Mr. Avery stipulated to his felon status, so the trial court made no factual
findings regarding his other prior convictions and how they related to his present as-applied claim.
As such, Mr. Avery’s as-applied constitutional challenge is premature. See id. ¶ 31 ([CITATION]); see also Ill. S. Ct. R.
23(e)(1) (eff. Feb. 1, 2021) (unpublished orders entered on or after January 1, 2021, may be cited
for persuasive purposes).
¶ 25 Regarding Mr. Avery’s facial challenge, he has not established that the UUWF statute
could not be validly applied to any defendant. This court has interpreted Bruen in the context of
UUWF and has determined that Bruen does not apply to felons, because the holding was limited
to laws affecting “law-abiding citizens.” See [CITATION]); see also
[CITATION], ¶¶ 27-29 (same). As the UUWF statute could be
validly applied to the defendants in [CITATION], Mr. Avery’s facial challenge to the statute
must also fail. See [CITATION]); see also [CITATION]).
No. 1-23-0606
challenge to the UUWF statute using the reasoning in Baker).
¶ 26 Mr. Avery requests we depart from our holdings in Baker and Mobley, and instead follow
the reasoning in [CITATION], ¶ 89, where we found that a
defendant’s status as a felon is irrelevant under the first step of the Bruen analysis and “is more
properly evaluated under the second step’s historical tradition analysis.” But even if we did follow
Brooks, sufficient historical precedent exists to ban felons from possessing firearms. See [CITATION], ¶¶ 27-33 (finding that the UUWF statute was “consistent with
this nation’s history of preventing potentially dangerous individuals from exercising the right to
bear arms,” and so was facially constitutional).
¶ 27 After this appeal was fully briefed, we granted Mr. Avery’s motion for leave to cite [CITATION], as additional authority. The Supreme Court
in Rahimi held that a federal statute prohibiting individuals subject to domestic violence restraining
orders from possessing firearms was constitutional on its face because “the Second Amendment
permits the disarmament of individuals who pose a credible threat to the physical safety of others.”
[CITATION]. The court in Rahimi rejected the government’s interpretation
that the defendant may be disarmed simply because he was not “responsible.” [CITATION].
¶ 28 Mr. Avery contends that Rahimi supports his contention that the UUWF statute was
unconstitutional because its ban on firearm possession based on felon status, irrespective of
contemporary dangerousness, is inconsistent with the second amendment regulatory tradition. He
also contends that the nine Supreme Court justices rejected the argument that the second
amendment applied only to “law-abiding, responsible” citizens, and this court therefore should
reject the State’s argument that the second amendment permits restrictions aimed at citizens who
No. 1-23-0606
are not “ ‘law-abiding and responsible,’ ” or who are not “ ‘virtuous.’ ”
[SEGMENT 13]
¶ 29 Notwithstanding Mr. Avery’s assertion to the contrary, Rahimi did not reject the view that
the second amendment applies only to “law-abiding, responsible” citizens as Mr. Avery contends.
It merely rejected the government’s contention that a defendant may be disarmed simply because
he was not “responsible,” finding the word vague, and made no mention of the phrase “law-
abiding” whatsoever. The only mention of “law-abiding” is in the Rahimi dissent, which uses the
term in the context of setting forth the government’s argument—“that the Court already held the
Second Amendment protects only ‘law-abiding, responsible citizens,’ ”—which the dissent found
specious. See [CITATION].
¶ 30 Mr. Avery here was not merely “irresponsible,” but had been previously convicted of a
felony, and the Rahimi court confirmed that prohibitions on the possession of firearms by felons
were “presumptively lawful.” [CITATION]. “[W]e do not suggest that the Second
Amendment prohibits the enactment of laws banning the possession of guns by categories of
persons thought by a legislature to present a special danger of misuse.” [CITATION]. Accordingly, Rahimi supports our conclusion that the UUWF statute is constitutional on its
face.
¶ 31 IV. CONCLUSION
¶ 32 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 33 Affirmed.
2024 IL App (2d) 230305-U
No. 2-23-0305
Order filed September 11, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-2125
)
JIMMY M. MARTINEZ, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE KENNEDY delivered the judgment of the court.
Justices Hutchinson and Birkett concurred in the judgment.
ORDER
¶1 Held: Defendant’s second-amendment challenge to the statute criminalizing a felon’s
possession of a firearm fails because (1) the amendment’s protection is reserved for
law-abiding citizens and (2) even if felons fall within the letter of the second
amendment, the challenged statute is valid because it is consistent with our Nation’s
history of firearms regulation, in which there is precedent for disarming groups
deemed potentially dangerous.
¶2 Defendant, Jimmy Martinez, appeals from his convictions of unlawful use or possession of
a weapon by a felon (UUPWF) (720 ILCS 5/24-1.1 (West 2018)). He contends that, under [CITATION], the UUPWF statute on its face 2024 IL App (2d) 230305-U
violates the second amendment to the United States Constitution (U.S. Const., amend II) and, thus,
his convictions must be reversed. We affirm.
¶3 I. BACKGROUND
¶4 On January 9, 2019, defendant was indicted on four felony charges, stemming from an
October 26, 2018, search of his Elgin home pursuant to a search warrant. Count I alleged that
defendant unlawfully possessed with the intent to deliver 15 grams or more but less than 100 grams
of a substance containing cocaine (720 ILCS 570/401(a)(2)(A) (West 2018)). Count II alleged that
defendant unlawfully possessed 15 grams or more but less than 100 grams of a substance
containing cocaine (id. § 402(a)(2)(A)). Count III charged UUPWF and alleged that defendant
knowingly possessed a firearm, “a Ruger 9mm pistol,” after having been previously convicted of
a felony, aggravated unlawful use of a weapon ([CITATION]). Count
IV also charged UUPWF (id.) and alleged that defendant knowingly possessed a firearm, “a Ruger
9mm pistol,” after having been previously convicted of a felony, unlawful possession of a
controlled substance ([CITATION]).
¶5 On December 18, 2020, defendant filed a “Motion to Quash Search Warrant and Suppress
Evidence Illegally Seized,” arguing that the search warrant lacked probable cause. The State filed
a response on April 1, 2021. On February 10, 2022, the trial court denied the motion. Defendant’s
subsequent motion for reconsideration was denied on May 20, 2022.
¶6 On June 1, 2023, the matter proceeded to a stipulated bench trial. The evidence consisted
of two documents, each titled “Joint Stipulation of the Parties,” and various items admitted as
People’s exhibits Nos. 1 through 29. 1
There was no People’s exhibit No. 4. The two stipulations were admitted as People’s
2024 IL App (2d) 230305-U
¶7 The stipulated evidence generally established the following. On October 26, 2018, officers
from the Illinois State Police Swat Team and the North Central Narcotics Task Force (Task Force)
executed a search warrant for defendant’s person and an Elgin apartment. Defendant was found in
the apartment, given a copy of the search warrant, and read his Miranda warnings (see [CITATION]) by Task Force Master Sergeant Backus. During the search, the
officers recovered (1) a clear plastic bag containing 32.2 grams of cocaine (People’s exhibit No. 1),
(2) four clear, knotted plastic bags weighing a combined 2.41 grams and containing suspected
(untested) cocaine (People’s exhibit No. 2), (3) a clear plastic bag weighing 2.31 grams and
containing suspected (untested) cocaine (People’s exhibit No. 3); (4) a Ruger 9-millimeter pistol
(People’s exhibit No. 5), (5) a loaded magazine found inside the Ruger 9-millimeter pistol
(People’s exhibit No. 6), (6) a black Apple iPhone (People’s exhibit No. 7), (7) a digital scale with
white powder residue (People’s exhibit No. 8), (8) an LG flip phone (People’s exhibit No. 9),
(9) 9-millimeter ammunition (People’s exhibit No. 10), (10) vehicle documentation belonging to
defendant (People’s exhibit No. 11), and (11) an insurance letter addressed to defendant (People’s
exhibit No. 12). People’s exhibit Nos. 13-28 were photographs taken at the scene, showing, among
other things, the foregoing items before collection. Also pictured was $1315 in U.S. currency
recovered from a bedroom dresser.
¶8 Edward McGill, a forensic scientist at the Illinois State Police Rockford Crime Laboratory,
would testify that, although People’s exhibit Nos. 2 and 3 were not tested for the presence of a
controlled substance, the contents of each exhibit were consistent in physical appearance with
People’s exhibit No. 1 and, in his opinion, contained cocaine.
exhibit Nos. 30 and 31.
2024 IL App (2d) 230305-U
¶9 Backus would testify that, while escorting defendant to a squad car, defendant stated that
he lived alone at the apartment. Task Force Inspector Neamand would testify that, while
transporting defendant to the police department, defendant told Neamand that he lived alone in the
apartment but that his mother was the leaseholder. Later, Neamand and Task Force Inspector
Young interviewed defendant. Neamand and Young would testify that defendant admitted to
possessing the cocaine and the Ruger pistol but denied “sell[ing] drugs.”
¶ 10 Young, an expert “in the field of cannabis, cocaine, and drug trafficking,” would testify
that, in his opinion, defendant possessed the cocaine with the intent to deliver it. Young’s opinion
was based on (1) the amount of the cocaine, (2) the nature of the packaging, (3) the digital scale,
(4) the two cellular phones, (5) the $1315 in U.S. currency, (6) the loaded firearm, and (7) the
absence of “cocaine user paraphernalia.”
¶ 11 The stipulations further provided that, on October 26, 2018, (1) defendant had a previous
felony conviction of aggravated unlawful use of a weapon ([CITATION]); (2) defendant had a previous felony conviction of unlawful possession of a controlled
substance ([CITATION]); (3) defendant did not possess, and was not
eligible to obtain, a valid Firearm Owners Identification (FOID) card; and (4) the firearm
recovered was a “firearm” as defined by section 1.1 of the Firearm Owners Identification Card Act
(FOID Card Act) ([CITATION]).
¶ 12 After the State rested, defendant indicated that he did not wish to present evidence but that
[SEGMENT 14]
the stipulations should not be considered a waiver of his argument that the search warrant lacked
probable cause.
¶ 13 The trial court found defendant guilty of all counts and set the matter for sentencing.
2024 IL App (2d) 230305-U
¶ 14 On September 11, 2023, defendant filed a motion for a new trial. Defendant argued that
the trial court erred in denying defendant’s motion to quash the search warrant and his subsequent
motion to reconsider.
¶ 15 On September 13, 2023, the trial court denied defendant’s motion for a new trial. Following
a sentencing hearing, the court merged count II into I and count IV into count III. It sentenced
defendant to seven years each on counts I and III, to run concurrently.
¶ 16 This timely appeal followed.
¶ 17 II. ANALYSIS
¶ 18 Defendant contends that, under the analysis recently established by the Supreme Court in
Bruen, the UUPWF statute is facially unconstitutional because it violates a felon’s second
amendment right to keep and bear arms. The State responds that the UUPWF statute is not
unconstitutional under Bruen, because the plain text of the second amendment does not apply to
convicted felons and, even if it did, historical analysis supports a tradition that allows for statutes
dispossessing felons of firearms. We agree with the State.
¶ 19 In considering the issue, we keep the following well-established principles in mind. “A
statute is presumed constitutional, and the party challenging the statute bears the burden of
demonstrating its invalidity.” [CITATION]. “A party raising a
facial challenge to a statute faces a particularly heavy burden.” [CITATION]. “A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid.” Id. “We have a duty to construe the statute
in a manner that upholds the statute’s validity and constitutionality, if it can reasonably be done.”
[CITATION]. The constitutionality of a statute is a question of law,
which we review de novo. [CITATION].
2024 IL App (2d) 230305-U
¶ 20 The UUPWF statute (720 ILCS 5/24-1.1(a) (West 2018)) provides in relevant part:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
-1 of this Act or any firearm or any firearm ammunition if the person has been convicted
of a felony under the laws of this State or any other jurisdiction. This Section shall not
apply if the person has been granted relief by the Director of the Department of State Police
under Section 10 of the [FOID Card Act].[Footnote omitted.]”
The second amendment provides: “A well-regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend II.
¶ 21 We begin with a review of the relevant Supreme Court decisions. In [CITATION], the Supreme Court declared for the first time that the second
amendment right to keep and bear arms is an individual right rather than a collective right. In
[CITATION], the Court struck down a series of District of Columbia laws that banned handgun
possession in the home and required other types of firearms to be kept unloaded and disassembled
or bound by a trigger lock or similar device. Id. at 575, 635. The Court held that the laws violated
the second amendment’s protection of “the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.” (Emphasis added.) Id. The Court noted, however, that “the right
secured by the Second Amendment is not unlimited.” Id. at 626. The Court admonished that
“nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill[.]” Id.
¶ 22 Two years later, in [CITATION], the Court held that the second amendment’s “right to keep and bear arms for the purpose of self-defense”
====== End of Document ====== 2024 IL App (2d) 230305-U
applied to the States through the fourteenth amendment (U.S. Const. amend. XIV). Further, it
struck down laws enacted by the City of Chicago and a Chicago suburb similar to those in Heller.
[CITATION] at 750. In so holding, the Court stated: “We made it clear in Heller that our holding did not cast
doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by
felons and the mentally ill[] ***.’ [CITATION] We repeat those assurances here.” [CITATION] at 786.
¶ 23 In 2022, the Supreme Court decided [CITATION]. The issue in [CITATION] was whether “ordinary,
law-abiding citizens have a *** right to carry handguns publicly for their self-defense.” (Emphasis
added.) [CITATION], 597 U.S. at 9. The Court held that, “consistent with Heller and [CITATION], *** the
Second and Fourteenth Amendments” protect such a right. [CITATION] at 10. Thus, it struck down New
York’s licensing laws that conditioned the issuance of public-carry licenses on a showing of a
special need. [CITATION] at 11.
¶ 24 In deciding the issue, the [CITATION] Court recognized that, following [CITATION], “the Courts of
Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment
challenges that combines history with means-ends scrutiny.” [CITATION] at 17. At the first step, the
government could justify the firearm restriction by demonstrating that the impacted activity fell
outside the scope of the second amendment as originally understood. [CITATION] at 18. If the government
proved that the regulated activity fell beyond the amendment’s original scope, the court would
uphold the regulation without further analysis. [CITATION] If, however, it was unclear that the activity was
unprotected, the court would proceed to the second step, in which the court would weigh the
severity of the firearm regulation—the means—against the ends the government sought to achieve.
[CITATION] The level of scrutiny would depend on how close the regulation came to the core of the second
amendment. [CITATION]
2024 IL App (2d) 230305-U
¶ 25 The Bruen Court “decline[d] to adopt” this framework, noting that “Heller and McDonald
do not support applying a means-end scrutiny in the Second Amendment context.” Id. at 19.
Instead, the Bruen Court set forth the following test for assessing the validity of statutes under the
second amendment:
“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. To justify its regulation, the government
may not simply posit that the regulation promotes an important interest. Rather, the
government must demonstrate that the regulation is consistent with this Nation’s historical
tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s
historical tradition may a court conclude that the individual’s conduct falls outside the
Second Amendment’s ‘unqualified command.’ ” [CITATION].
Thus, under Bruen, the court must first ask whether the second amendment’s “plain text” covers
an individual’s conduct. [CITATION]. If it does, the question becomes whether the challenged statute is
“consistent with this Nation’s historical tradition of firearm regulation.” [CITATION].
¶ 26 After briefing in this case was complete, the Court decided [CITATION], which reaffirmed the Bruen test and emphasized
that “Heller never established a categorical rule that the Constitution prohibits regulations that
forbid firearm possession in the home.” [CITATION]. “In fact,” the Court noted, “Heller stated that
many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’
are ‘presumptively lawful.’ ” [CITATION]. The Court in [CITATION]
rejected a facial challenge to a federal statute (18 U.S.C. § 922(g)(8)) that prohibited firearm
possession by a person subject to a domestic-violence restraining order that protected an intimate
2024 IL App (2d) 230305-U
partner or the partner’s child. Id. *4, 5. The Court held that the statute was not facially invalid
given that one of the bases for prohibiting firearm possession by the subject of the order was that
he or she presented a credible threat to the physical safety of the intimate partner or the partner’s
child. Id. *7 (citing 18 U.S.C § 922(g)(8)(C)(i)). For reasons not apparent, the Court did not apply
the first part of the Bruen test but considered only whether the statute was consistent with the
Nation’s history of firearms regulation. Id. *10. After reviewing historical analogs of the statute,
the Court found that “[o]ur tradition of firearm regulation allows the Government to disarm
individuals who present a credible threat to the physical safety of others.” Id. The Court concluded:
[SEGMENT 15]
“An individual found by a court to pose a credible threat to the physical safety of another may be
temporarily disarmed consistent with the Second Amendment.” Id. *11.
¶ 27 Defendant’s challenge to the UUPWF statute fails at the first step of the Bruen analysis
because, contrary to defendant’s assertion, felons are not included in “the people” to whom the
second amendment refers.
¶ 28 We find instructive [CITATION]. In [CITATION], the defendant argued that the UUPWF statute,
as applied to him, was unconstitutional under the framework announced in Bruen. Id. ¶¶ 33, 37.
The First District concluded that defendant could not mount a second-amendment challenge to the
statute because “[CITATION] just [did] not apply to him,” given his status as a felon. Id. ¶ 37. The court
explained:
“The [CITATION] Court could not have been more clear that its newly announced test applied
only to laws that attempted to regulate the gun possession of ‘law-abiding citizens,’ and
not felons like defendant. [CITATION] (the holding was
limited to laws affecting ‘law-abiding citizens’). Just in case a reader missed the first time
2024 IL App (2d) 230305-U
that the court said it, the court repeated it 18 times. [CITATION]
passim (the six justices in the majority repeated the phrase ‘law-abiding’ 18 times in their
majority opinion and their concurrences). Further, Justice Kavanaugh in his concurrence
quoted an earlier case that stated: ‘ “[N]othing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons ***.” ’ [CITATION]
(Kavanaugh, J., concurring, joined by Roberts, C.J.)
(quoting [CITATION]). Justice Kavanaugh’s concurrence
was joined by Chief Justice Roberts, and they both joined the six-justice majority opinion.
Based on the plain, clear, and repeated language of the justices in the majority, defendant
is simply outside the box drawn by [CITATION]
¶ 29 As the State notes, we have recently issued two unpublished decisions that similarly
rejected Bruen-based challenges to the UUPWF statute by agreeing with [CITATION] and holding that
felons are not a part of “the people” in the plain text of the amendment. 2 See [CITATION] (“As defendant does not dispute that he is a convicted felon for purposes of the [UUPWF]
statute, he is not a ‘law-abiding’ citizen afforded the same second amendment protections enjoyed
by ‘the people’ referenced in the second amendment.”); [CITATION] (“We *** hold
that ‘the people’ referenced in the second amendment are law-abiding citizens.”). In addition, in
[CITATION]
Orders issued under Illinois Supreme Court Rule 23(b) (eff. Feb. 1, 2023) on or after
January 1, 2021, “may be cited for persuasive purposes.” Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023).
- 10 -
===== 2024 IL App (2d) 230305-U
(filed Jan. 24, 2024), we similarly rejected a second amendment challenge under Bruen to the
armed habitual criminal (AHC) statute (720 ILCS 5/24-1.7 (West 2020)): “[A]s defendant
concedes that he is a repeat convicted felon for purposes of the [AHC] statute, he is not a ‘law-
abiding’ citizen afforded the same second amendment protections enjoyed by ‘the people’
reference in the second amendment.”
¶ 30 We agree with [CITATION] and our previous decisions. As we noted in [CITATION]:
“[T]he clear implication of Bruen is that ‘the people’ referenced in the second amendment
are ‘law-abiding’ citizens. See, e.g., [CITATION] (‘Congress did not violate [the defendant’s rights] by enacting § 922(g)(1) [(18
U.S.C. § 922(g)(1) (2020) (the federal unlawful-possession-of-a-weapon-by-a-felon
statute)]. He is not a law-abiding citizen, and history supports the authority of Congress to
prohibit possession of firearms by persons who have demonstrated disrespect for legal
norms of society.’); [CITATION] (‘Courts in this jurisdiction and elsewhere have relied on the focus in [Bruen, McDonald,
and Heller] on the rights of “law-abiding” citizens to hold that the government may,
consistently with Bruen[,] disqualify convicted felons from exercising the rights the
Second Amendment guarantees.’); [CITATION] (‘The Supreme Court notes throughout its decisions that the
challenging parties are “law-abiding” citizens. The implication is clear: the reach of Bruen
ends at the feet of those individuals who are not law-abiding citizens.’); [CITATION] (‘The bottom line is [the
defendant’s] status as a felon removes him from “the people” enumerated in the Second
Amendment.’); [CITATION] (quoting
- 11 - 2024 IL App (2d) 230305-U
Heller, 554 U.S. at 635) (noting that the right secured by the second amendment ‘extends
only to “the people,” which encompasses only “law-abiding, responsible” citizens who
keep or bear arms for “lawful purposes.” ’); [CITATION] (‘By distinguishing non-law-abiding citizens from law-abiding ones,
the [dicta] in Heller and McDonald clarifies the bounds of the plain text of the Second
Amendment. This, coupled with the majority’s focus in Bruen on the Second Amendment
rights of “law-abiding citizens” throughout the opinion convinces this Court that the
Supreme Court would conclude that these statutes fail to infringe on any Second
Amendment rights.’).” [CITATION], ¶ 153.
¶ 31 Further, we note that several published Illinois decisions have similarly concluded that the
second amendment protects the rights of only law-abiding citizens. See [CITATION], ¶ 22 (rejecting the defendant’s facial challenge to the AHC statute, stating that
“Bruen is clear that second amendment rights apply to law-abiding citizens for self-defense”);
[CITATION], ¶ 21 (rejecting the defendant’s constitutional
challenge to the UUPWF statute, holding that “Bruen simply does not apply to [the] defendant.
The second and fourteenth amendments protect the right of ‘law-abiding citizens’ to possess
handguns”); [CITATION], ¶¶ 56, 59, pet. for leave to appeal
pending, No. 130078 (filed May 22, 2024) (rejecting the defendant’s facial challenge to the
aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1)(3)(A-5)(C), (I) (West
2018)), which criminalizes possession of a weapon under certain circumstances without a valid
license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2018)) or a valid
FOID card, noting that “Bruen expressly and repeatedly limits the second amendment’s scope to
law-abiding citizens”); [CITATION], ¶¶ 28, 29, pet. for leave to
- 12 - 2024 IL App (2d) 230305-U
appeal pending, No. 130417 (filed Jan. 31, 2024) (where the record showed that the defendant had
“at least 14 felony convictions, including convictions for violent crimes,” the defendant could not
challenge under Bruen the UUPWF statute as applied to him because “Bruen strongly suggests the
test only applies when a regulation impacts a law-abiding citizen’s ability to keep and bear arms”).
¶ 32 Numerous unpublished Illinois decisions have read the second amendment’s text similarly.
See [CITATION] (rejecting the defendant’s constitutional challenge to the UUPWF statute,
holding that “Bruen does not apply to [the] defendant, as the second and fourteenth amendments
protect the right of ‘law-abiding citizens’ to possess handguns”); [CITATION] (rejecting
the defendant’s facial and as-applied challenges to the AHC statute because the “defendant’s
previous felony convictions make him not a law-abiding citizen and, therefore, not protected by
the second amendment” (emphases in original)); [CITATION]
(rejecting the defendant’s facial constitutional challenge to the UUPWF statute, finding “nothing
in [the] defendant’s arguments to persuade [the court] to believe Bruen does not apply to felons
simpliciter[.]”); [CITATION] (relying on Baker and rejecting the defendant’s
facial and as-applied challenges to the UUPWF statute, holding that his status as a felon removed
him from the first step of the Bruen analysis); [CITATION]
(“In Heller, McDonald, and Bruen, the Supreme Court made clear that felons are not, and have historically not been,
[SEGMENT 16]
categorically protected by the second amendment as ‘law-abiding citizens.’ ”); [CITATION]
- 13 - 2024 IL App (2d) 230305-U
[CITATION], ¶ 16, pet. for leave to appeal pending, No. 130220 (filed Nov. 20,
2023) (rejecting the defendant’s constitutional challenge to the UUPWF statute because “the Bruen
decision does not apply to felons”).
¶ 33 We recognize that one panel of the First District, in considering the constitutionality of the
UUPWF statute, has held that felon status is “irrelevant” at the first stage of the Bruen analysis
and, thus, even a felon’s possession of a firearm is “ ‘presumptively constitutional.’ [Citation.].”
See [CITATION], ¶ 89, pet. for leave to appeal pending,
No. 130153 (filed Oct. 30, 2023). One panel of the Third District adopted [CITATION]’ reasoning when
considering facial and as-applied constitutional challenges to the AHC statute and the UUPWF
statute. See [CITATION], ¶ 26, pet. for leave to appeal pending, No.
130696 (filed May 16, 2024).
¶ 34 We decline to follow [CITATION]’ reasoning as to the first step of the Bruen analysis. 3 Instead,
we join the great weight of authority in Illinois and agree that the second amendment does not
apply to a felon’s firearm possession.
¶ 35 Even if we presumed that a felon’s firearm possession is covered under the plain text of
the second amendment, defendant’s challenge to the UUPWF statute would fail under Bruen’s
We note that both [CITATION] and [CITATION] upheld the challenged statutes under the second stage
of the Bruen analysis. See [CITATION], ¶ 105 (“[W]e conclude that the
legislature’s ability to impose status-based restrictions disqualifying certain categories of people
from possessing firearms is consistent with the national historical tradition of firearm regulation.”);
[CITATION], ¶ 33 (“[W]e conclude there is a history and tradition dating
back to the founding era of identifying dangerous individuals and disarming them.”)
- 14 - 2024 IL App (2d) 230305-U
second step, which asks whether the state can demonstrate that the UUPWF statute “is consistent
with the Nation’s historical tradition of firearm regulation.” [CITATION] Defendant
contends that there is no historical tradition of firearms regulation that supports a “flat ban” on
firearm possession by convicted felons. We disagree.
¶ 36 Despite our disagreement with Brooks’ conclusion that felons are covered under the plain
text of the second amendment, we nevertheless find particularly instructive Brooks’ analysis on
the issue of whether the UUPWF statute is consistent with the Nation’s historical tradition of
firearm regulation.
¶ 37 In [CITATION], the court considered an as-applied challenge to the AHC statute. [CITATION] The Brooks court summarized as follows the State’s burden under
Bruen’s second step:
“To carry this burden, the government must point to ‘historical precedent from
before, during, and even after the founding [that] evinces a comparable tradition of
regulation.’ [CITATION] Noting that ‘when it comes to interpreting the Constitution, not all
history is created equal,’ the Court made clear that the relevant inquiry centers on what the
founders understood the second amendment to mean. [CITATION] In other words, the Court
clarified that in looking to historical context, the most relevant time period is that of the
amendment’s enactment (in 1791). [CITATION] [Footnote omitted.]
In directing courts to canvass historical periods for context, the Court
acknowledged that the task would not always be ‘straightforward,’ particularly when it
involved ‘unprecedented societal concerns or dramatic technological changes.’ [CITATION]
Noting that in such circumstances ‘a more nuanced approach’ was necessary, the Court
instructed lower courts to seek out similar regulations and to reason by analogy. [CITATION]
- 15 - 2024 IL App (2d) 230305-U
As the Court explained, it is not necessary to identify a ‘historical twin’; rather a ‘well-
established and representative [historical] analogue will do.’ (Emphasis in original.)
[CITATION.]
The Court further clarified that ‘analogical reasoning’ under the second amendment
should not be ‘a regulatory straitjacket nor a regulatory blank check.’ [CITATION.] As such,
‘courts should not “uphold every modern law that remotely resembles a historical
analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have
accepted.” ’ [CITATION.] However, ‘even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass constitutional muster.’
[CITATION.] The core question is whether the challenged regulation and the proffered
analogue are ‘relevantly similar.’ [CITATION.]
The Court then clarified two metrics to be used in comparing the government's
proffered analogues against the challenged law, namely: (1) how the challenged law
burdens the right to bear arms; and (2) why the law burdens that right. [CITATION.] In short,
the Court explained that the proper inquiry turns on whether the ‘modern and historical
regulations imposes a comparable burden on the right of armed self-defense, and ***
whether that burden is comparably justified.’ [CITATION.]” [CITATION.]
¶ 38 The Brooks court engaged in an extensive historical analysis dating back to 17th century
England and ultimately concluded that “there is a historical tradition of legislatures exercising their
discretion to impose status-based restrictions disarming entire categories of persons who, based on
their past conduct, were presumed unwilling to obey the law.” (Internal quotations omitted.) [TARGET CITATION.]
¶ 97. “While the particular groups varied over time, the founders understood that felons were one
such group.” [TARGET CITATION.]
- 16 - 2024 IL App (2d) 230305-U
¶ 39 The court began by noting that, in 17th Century England, the government “repeatedly
disarmed individuals whose conduct reflected that they could not be trusted to abide by the
sovereign and [his] dictates.” (Internal quotations omitted.) [CITATION] ¶ 93. Those disarmed included,
first, “non-Anglican Protestants who refused to participate in the Church of England and those
who were dangerous to the Peace of the Kingdom” and, later, “Catholics who refused to renounce
their faith.” (Internal quotations omitted.) [CITATION]. The court noted that, later, “[i]n colonial America,
legislatures continued to disarm individuals whose status indicated that they could not be trusted
to obey the law.” [CITATION] ¶ 94. “As such, Native Americans, and other minority groups, like Catholics
in Maryland and Pennsylvania were banned from owning firearms.” [CITATION]. The court next noted that,
“during the Revolutionary War, the Continental Congress, Massachusetts, Virginia, Pennsylvania,
Rhode Island, North Carolina, and New Jersey prohibited possession of firearms by people who
refused to swear loyalty oaths.” [CITATION].
¶ 40 The Brooks court further noted that “[f]ounding-era criminal punishments also demonstrate
the widespread acceptance of the legislature’s authority to disarm felons.” [CITATION] ¶ 96. For instance,
even for some nonviolent crimes such as deceit, forgery, and wrongful taking of property, the
punishment included death or forfeiture of a person’s entire estate (which the Brooks court
presumed included firearms). [CITATION]. “Even some non-capital offenses triggered the permanent loss of
an offender’s estate, including any firearms.” [CITATION]. An example was a 1786 New York statute that
punished individuals who counterfeited state bills of credit with life imprisonment and the
complete forfeiture of their estate (which, again, included firearms). [CITATION]. As one court has observed,
“if someone was subject to death and forfeiture of their entire estate then such laws would have
also foreclosed individuals from their right to keep and bear arms.” [CITATION]. “As a matter of logic and experience, it makes sense
- 17 - 2024 IL App (2d) 230305-U
that these extensive and exhaustive penalties for felonies—outright capital punishment and the
forfeiture of all property—qualify as powerful evidence that mere firearms dispossession of felons
is a ‘comparable burden’ as Bruen frames the standard *** to historical punishments for felonies.”
[CITATION].
¶ 41 While Brooks’ historical survey uncovered no law that specifically prohibited felons from
owning firearms, Brooks did cite laws that were persuasive analogs to the UUPWF statute. As the
federal district court reasoned in [CITATION] the English disarmament laws “are relevant analogues to the [federal]
felon dispossession statute, because they disarmed groups ‘based on their perceived potential
disobedience to the law (or sovereign).’ ” In addition, the Colonial and Revolutionary-era laws are
[SEGMENT 17]
evidence that, “ ‘by the time of the Second Amendment’s ratification in 1791, there already was a
historical tradition of legislatures disarming persons based on the perception (sometimes odious
perceptions) that certain groups could not be trusted to be abide [by] the law or sovereign.’ ” Id.
*11 (quoting Agee, *9).
¶ 42 Here, the State relies specifically on the “surety statutes” of the mid-19th century as
analogous to the UUPWF statute. The surety statutes “required certain individuals to post bond
before carrying weapons in public.” Bruen, 597 U.S. at 55. In [CITATION],
The decisions of federal district courts may be considered as persuasive authority. Home
[CITATION].
- 18 - 2024 IL App (2d) 230305-U
district court found that the surety statutes were analogous to the federal unlawful possession-of-
a-firearm-by-a-felon statute (18 U.S.C. § 922(g)(1)), stating:
“[The] [surety] statutes presumed a right to ‘carry [a firearm] that [could] be burdened only
if another could make out a specific showing of “reasonable cause to fear an injury, or
breach of the peace.” ’ [CITATION] (quoting Mass. Rev. Stat., ch. 134 § 16 (1836)). *** [T]he
Second Amendment also begins with a presumption that the individual has the right to
carry. However, § 922(g)(1) burdens this right just as the surety statutes did nearly two
hundred years ago. Over 65% of prisoners in the United States will be arrested again within
three years of their release and over 80% within nine years of their release. [CITATION] Thus,
felons clearly fall within a category of people who are not only reasonably believed to, but
also probable to cause an injury or breach of the peace. Although surety statutes did not
disarm citizens, the statutes did burden the right guaranteed by the Second Amendment in
a similar fashion.”
¶ 43 As noted, the Court in [CITATION] also reviewed the history of firearms regulation in England
and early America. See [CITATION], 2024 WL 3074728, *7-10. The Court observed that,
“[f]rom the earliest days of the common law, firearms regulations have included provisions barring
people from misusing weapons to harm or menace others.” [CITATION] *7. “By the 1700s and early 1800s,
*** two distinct legal regimes had developed that specifically addressed firearms violence.” [CITATION]
These were the surety statutes and the “ ‘going armed’ ” statutes. [CITATION] The latter “provided a
mechanism for punishing those who had menaced others with firearms.” [CITATION] These two sets of
laws, the Court concluded, “confirm what common sense suggests: When an individual poses a
clear threat of physical violence to another, the threatening individual may be disarmed.” [CITATION]
- 19 - 2024 IL App (2d) 230305-U
¶ 44 Thus, even though there is no “historical twin” for the UUPWF statute, “there is evidence
that categorical bans are permissible and that individuals that have been deemed dangerous, non-
law abiding, or even reasonably likely to breach the peace may have their right to keep and bear
arms restricted.” [CITATION].
¶ 45 Defendant contends, however, that “the historical record does not support Illinois’ flat ban
on the possession of firearms by a convicted felon,” but his arguments are not persuasive. First, he
argues that the history of gun regulation demonstrates that most restrictions were based on
dangerousness, not criminal history or status. However, contrary to defendant’s argument, the
status-based restrictions were based not on individualized assessments of dangerousness, but “on
a conclusion that the category as a whole presented an unacceptable risk of danger if armed.” See
[CITATION]. Indeed, “[n]ot all persons disarmed under historical precedents—not all
Protestants or Catholics in England, not all Native Americans, not all Catholics in Maryland, not
all early Americans who declined to swear an oath of loyalty—were violent or dangerous persons.”
Id.
¶ 46 Defendant also argues that the status-based restrictions were temporary or easily
removable. For instance, he asserts that, in the case of Protestant monarchs prohibiting Catholics
from possessing firearms unless they swore an oath of loyalty and renounced their papism, a person
could remove the disability by appearing before a justice of the peace and swearing oaths of
allegiance to the King. However, as the State notes, an individual prohibited from possessing a
firearm under the UUPWF statute may analogously obtain relief under section 10(c) of the FOID
Card Act (430 ILCS 65/10 (West 2020)) by submitting a petition showing
“(1) the applicant has not been convicted of a forcible felony under the laws of this State
or any other jurisdiction within 20 years of the applicant’s application for a Firearm
- 20 - 2024 IL App (2d) 230305-U
Owner’s Identification Card, or at least 20 years have passed since the end of any period
of imprisonment imposed in relation to that conviction; (2) the circumstances regarding a
criminal conviction, where applicable, the applicant’s criminal history and his reputation
are such that the applicant will not be likely to act in a manner dangerous to public safety;
(3) granting relief would not be contrary to the public interest; and (4) granting relief would
not be contrary to federal law.”
See [CITATION], 2021 IL 125513, ¶ 35 (“The legislature clearly
intended for felons to be able to obtain relief under section 10 of the FOID Card Act [(see 430
ILCS 65/10 (West 2020))]. Section 24-1.1(a)’s prohibition on the possession of weapons by felons
says that it does not apply if the person has been granted relief under section 10 of the FOID Card
Act. We do not believe that the legislature’s intent was to create such a right and then make it
impossible for anyone to obtain relief.”). Although defendant argues that applying for
reinstatement of the right to possess a firearm under this provision is akin to the “special need”
provision struck down in Bruen, that case is distinguishable. There is a crucial difference between
the government (1) applying its discretion to enable a law-abiding citizen to exercise the right to
possess a firearm and (2) applying its discretion to reinstate a law-breaking citizen’s right to
possess a firearm.
¶ 47 Finally, defendant directs our attention to three “founding-era proposals” that were
ultimately not incorporated into the second amendment. In one proposal, a majority of the New
Hampshire convention suggested that the bill of rights limit the right to bear arms to those who
had not engaged in “ ‘actual rebellion.’ ” See [CITATION], 919 F.3d 437, 454 (2019) (Barrett,
J., dissenting) (quoting 1 Jonathan Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 326 (2d ed. 1891)). In the Massachusetts convention, Samuel
- 21 - 2024 IL App (2d) 230305-U
Adams proposed that only “ ‘peaceable citizens’ ” have the right to bear arms. [CITATION] (quoting 2
Benard Schwartz, The Bill of Rights: A Documentary History 675, 681 (1971)). In the
Pennsylvania convention, the influential Pennsylvania minority suggested that the citizens’ right
to bear arms not be infringed “ ‘unless for crimes committed, or real danger of public injury from
[the] individuals.’ ” [CITATION] (quoting 2 Schwartz, at 662, 665). Defendant cites then-Judge
Barrett’s comment, in dissent, that “[t]he concern common to all three [proposals] is not about
felons in particular or even criminals in general; it is about threatened violence and the risk of
public injury.” [CITATION] Thus, according to defendant, the proposals do not support the notion of a
blanket disarmament of felons.
¶ 48 However, as defendant notes, none of the proposals were incorporated into the second
amendment. It can be argued that this was because limitations on the rights of felons to keep and
bear arms were understood. Recently, in [CITATION], the court observed that the existence of the
proposals supports “the proposition that it was ‘ “ ‘obvious’ ” to the Founders that persons who
committed crimes would properly be subject to disarmament laws.’ ” [CITATION] (quoting [CITATION], citing
Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 273
(2008) (explaining that the Founders “did not object to the lack of an explicit exclusion of criminals
from the individual right to keep and bear arms” during the debates over “what became the Second
Amendment,” because this limitation “was understood”)). We agree with that reasoning.
¶ 49 In sum, defendant’s challenge to the UUPWF statute fails under the Bruen analysis because
[SEGMENT 18]
felons, who are not law-abiding citizens, are not afforded the same second amendment protections
enjoyed by “the people” referenced therein. Further, even if the text of the second amendment was
- 22 - [CITATION]
to be construed as presumptively protecting felons, the UUPWF statute is consistent with this
Nation’s historical tradition of firearms regulation.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 52 Affirmed.
- 23 -
====== End of Document ======
2024 IL App (1st) 231008-U
SECOND DIVISION
September 10, 2024
No. 1-23-1008
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 02900
)
SHAQUILLE WHITEHEAD, ) Honorable
) Angela Munari Petrone,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court of Cook County convicting defendant
of armed habitual criminal (AHC); the trial court did not consider facts not in evidence or
abandon its role as neutral arbiter to deny defendant a fair trial; the evidence was
sufficient to prove defendant’s guilt beyond a reasonable doubt; and the AHC statute is
constitutional under the United States and Illinois constitutions.
¶2 The State charged defendant, Shaquille Whitehead, with armed habitual criminal (AHC),
unlawful use of a weapon by a felon, and three counts of aggravated unlawful use of a weapon.
Following a bench trial, the circuit court of Cook County found defendant guilty of AHC and
UUWF. The court merged the conviction for UUWF into the conviction for AHC and sentenced
defendant to six years’ imprisonment for AHC. Defendant appeals the conviction on the grounds
(1) the trial court denied defendant a fair trial by considering facts not in evidence and
abandoning its role as neutral arbiter of the facts and adopting the role of prosecutor, (2) the State 1-23-1008
failed to prove him guilty of every element of the offense of AHC beyond a reasonable doubt,
and (3) the AHC statute is unconstitutional on its face and as applied to defendant under both the
United States Constitution and Illinois Constitution.
¶3 For the following reasons, we affirm.
¶4 BACKGROUND
¶5 The charges against defendant arose from a traffic stop of a vehicle defendant was
driving with one passenger. The State called one of the officers who stopped defendant’s vehicle
as its only live witness at defendant’s bench trial. The State also submitted into evidence footage
from the testifying officer’s body worn camera and the footage from the body worn camera of
one of the other officers involved in the traffic stop, but the second officer did not testify.
¶6 Officer Axel Gallardo of the Chicago Police Department testified that on February 9,
2022, he and his partner, Officer Rojas Yesenia, conducted a traffic stop. Officer Gallardo
approached the passenger side of the vehicle and his partner approached the driver’s side of the
vehicle. Officer Gallardo observed two people in the vehicle. He identified defendant as the
driver. Defendant did not have a valid driver’s license and the officers decided to tow the
vehicle. At that time, defendant was already out of the vehicle. Officer Gallardo asked the
passenger to exit the vehicle but the passenger did not immediately exit the vehicle. Officer
Yesenia recovered a loaded handgun from the pocket of a jacket the passenger was wearing.
Officers eventually removed the passenger from the vehicle and placed him into custody.
¶7 Officer Gallardo testified that after police placed the passenger into custody they
conducted an inventory search of the vehicle. During the inventory search, police found a firearm
“In the middle of the backseat on top of a child’s car seat.” The car seat was in the middle of the
backseat of the vehicle. Officer Gallardo testified he did not see the gun immediately because
1-23-1008
there was a blanket on top of the firearm. There was nothing else on top of the firearm other than
the blanket. Officer Gallardo removed “a laundry basket, clothes, and the blanket” before he
recovered the gun. The gun was loaded, it had an extended magazine, and it had a laser sight.
¶8 Officer Gallardo testified that at the time of the traffic stop he was wearing a body worn
camera. The State published the footage of the traffic stop from Officer Gallardo’s body worn
camera to the trial court without objection. Officer Gallardo verbally described his actions.
Officer Gallardo testified that he was searching the vehicle defendant had been driving. He
removed a plastic bag containing clothes. He recovered the firearm. Officer Gallardo testified he
recovered the firearm “On the child’s car seat. On top of the child’s car seat.” He pointed out the
exact area of the car seat where he recovered the firearm. The State asked that the record reflect
“that the officer pointed on the car seat.” The trial court asked the officer to point again and the
court clarified that the officer “pointed to an area that’s kind of reddish or pink on the car seat
which is to the left of the white basket as one is looking at the [image.]” The court asked if the
officer recovered the firearm “from the top of that which is now gray or black ***?” Officer
Gallardo identified the side of the car seat. The court asked, “Where did you recover it?” The
officer responded, “Where the child usually sits.” The court stated, “Oh, on the seat. That’s on
top of where the pink or red color is?” and the officer responded, “Yes.” The State stopped the
recording.
¶9 Officer Gallardo testified that he spoke to defendant with his partner present. The officer
read defendant his Miranda rights, after which he asked defendant who was the registered owner
of the vehicle. The officer testified that defendant stated the registered owner was his sister. The
officer testified that defendant also stated that “he came back from doing laundry” at the
laundromat, “and he said that he had no knowledge of the firearm.”
1-23-1008
¶ 10 Upon further examination by the State, Officer Gallardo testified there were two people
in the vehicle and no one was seated in the backseat. The State asked the officer to “describe
how the blanket was placed over the gun.” The officer testified, “It looks like the blanket was
placed over the gun.” The blanket was partially folded. When asked what he meant by “partially”
the officer testified, “It looks like it was just thrown into the car seat ***.” The firearm was
within arm’s reach of where defendant was seated and there was nothing else covering the
firearm besides the blanket.
¶ 11 On cross-examination, Officer Gallardo testified that defendant was being cooperative
with Officer Yesenia. When asked to exit the vehicle defendant did so. Officer Gallardo admitted
that the passenger was also within arm’s reach of the firearm recovered from the backseat of the
vehicle. The passenger did not get out of the car when asked and officers eventually had to
physically remove the passenger from the vehicle. Officer Gallardo agreed he had no way of
knowing how long the firearm was in the car seat or how long the passenger or defendant were in
the car. Officer Gallardo testified defendant told him he was coming back from doing laundry
and the officer found a bag of laundry and a laundry basket in the car. The bag of laundry and the
laundry basket were not on top of the firearm. Officer Gallardo had no idea how long the blanket
had been there.
¶ 12 The State did not perform a redirect examination and asked that the officer be excused.
The trial court asked the defense if it needed the officer to stay and the defense stated it had no
objection to the officer being excused. The trial court initially excused the officer, but then stated
the court had “a couple of questions of the officer.” The officer retook the stand and the court
asked the officer what type of handgun he found. The officer responded, “It’s and FN firearm.”
The officer could not recall what the abbreviation “FN” meant or the caliber of the firearm. The
1-23-1008
State refreshed the officer’s memory with his case report, and the officer testified that, “It’s an
FN 509, nine millimeter.” The court asked whether the officer recalled the type of vehicle
defendant was driving. Officer Gallardo testified only that “It’s a black vehicle.” He refreshed
his memory again and stated, “Black Chevy, ma’am;” but the officer could not recall the kind of
Chevy. The trial court asked the State and the defense whether either had any questions based on
the court’s questions and both responded they did not.
¶ 13 The State informed the trial court it had no further live witnesses and that it would be
[SEGMENT 19]
proceeding by stipulation. The parties stipulated that the footage of Officer Rojas’s body worn
camera was a true and accurate depiction of the events. The trial court admitted the recording
into evidence and the State published the video to the court. The court also admitted self-
authenticating certified copies of defendant’s two prior convictions for burglary.
¶ 14 The State rested its case and the defense moved for a directed finding. The trial court
denied defendant’s motion for a directed finding and the parties proceeded with closing
arguments. At the conclusion of the parties’ arguments the court stated it wanted “to look up
some law about guns found in vehicles” and continued the matter.
¶ 15 On December 8, 2022, the trial court issued its written order following the bench trial.
The court found defendant guilty of AHC and UUWF. “The State nolle prosequi [the remaining
counts.]” The trial court’s written order states, in pertinent part, that the officers stopped “a small
black Chevrolet.” When asked for his driver’s license and insurance defendant could not produce
them and said, “Coming right from the laundromat.” Defendant complied with the officer’s
request to exit the vehicle. The court wrote: “An inventory search of the Chevrolet yielded a .9
mm handgun with a laser sight and an extended magazine, atop a child’s car seat in the middle of
the backseat. A blanket had been loosely covering the gun. A large white bag of clothes and a
1-23-1008
laundry basket were immediately next to the gun.” The court recounted defendant’s statement to
the officer about the car belonging to his sister and coming from the laundromat, then continued
as follows:
“The State argued constructive possession of the .9 mm handgun that was
on top of the child’s car seat was proven. Joint knowledge and control exist; the
gun was within arm’s reach of where defendant and the passenger had been
seated. It had been put there recently, as it would have fallen from its position
with a sudden stop of the vehicle. The blanket covering the gun was not
random—it went with the laundry defendant admitted possessing. There were not
a lot of other things in the vehicle. It would have been impossible to place the
laundry where it was, and not realize a gun was on top of the car seat. *** The
gun was not under a seat, in the glove box or inside a door or inside a center
console or in the trunk.”
¶ 16 The trial court noted that the gun was “equal distance between the driver and passenger;
both were within arm’s reach of it.” The court acknowledged the gun was not in plain sight, it
was unknown how long it had been there, this was not defendant’s vehicle, and defendant “did
not act suspiciously and aggressively like the passenger did.” The court noted that proximity is
not enough for proof beyond a reasonable doubt.
¶ 17 The court summarized the holdings in [CITATION], and [CITATION], and the evidence in this case. Of note is that the
court stated that in [CITATION], the court found that, “If two or more persons share immediate and
exclusive control or share the intention and power to exercise control, then each has possession;
where possession has been shown, an inference of guilty knowledge can be drawn from the
1-23-1008
surrounding facts and circumstances.” Further, in [CITATION], the court found that “[w]here a
defendant was the driver of a vehicle, and had merely a lone passenger, defendant had immediate
and exclusive control of the inside of the automobile for purposes of constructive possession.”
Finally, the trial court here noted that in [CITATION], the court found that “a defendant’s mere
presence in a vehicle, without more, does not establish his knowledge of a weapon therein,” but
“[a]n inference of knowledge arises when the contraband is located in a place over which the
defendant had regular ongoing, control and it is an item that human experience teaches is rarely,
if ever, found unaccountably in such a place. A defendant’s close proximity to the weapon and a
description of where the weapon was found may also be considered.”
¶ 18 The trial court then wrote:
“A *** weapon, a .9 mm handgun with laser sight and extended magazine,
was found atop a child’s car seat in the middle of the backseat, immediately next
to a laundry basket and a bag of clothing, loosely covered by a blanket. The area
where this weapon was recovered was easily within arm’s reach of both defendant
and the front seat passenger; body camera video shows the Chevrolet defendant
was driving was a small vehicle. The weapon was in a location over which
defendant had control and had placed laundry shortly before. The weapon was
recently put atop the child’s seat—such a large and distinctive handgun would not
normally be left atop a child’s car seat in a vehicle, certainly would have fallen
upon sudden stop of the vehicle, and was loosely covered by a blanket; body cam
video shows blankets were part of the laundry that was in the backseat.”
¶ 19 Based on the findings stated above, the trial court found that the State proved beyond a
reasonable doubt that defendant “knew the .9 mm firearm with laser sight and extended
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magazine that was found in the backseat, atop the child’s car seat, was in the Chevrolet. The
evidence proved beyond a reasonable doubt that defendant constructively possessed that
firearm.”
¶ 20 Defendant filed a motion to reconsider the judgment. On May 4, 2023, the trial court
denied defendant’s motion to reconsider the finding of guilt in a written order.
¶ 21 On May 4, 2023, the trial court sentenced defendant. In its oral sentencing ruling, the trial
court noted that the sentencing range for AHC is six to thirty years. The court noted the nature of
the weapon, which it “consider[ed] to be significant.” The trial court initially described the
firearm as a “machine gun” but immediately corrected itself to say that “the weapon in this case
was a .9 millimeter handgun loaded with a laser sight and an extended magazine.” The court
agreed there was no evidence defendant actually used the gun and that his prior convictions
“were all burglaries, no indication of physical harm to someone else.” The court also found that
there “is some mitigating information in the presentence investigation in that [defendant] was
cooperative with the officers as shown on the video.” The court found “all of that warrants the
minimum sentence here of six years in the Illinois Department of Corrections.”
¶ 22 This appeal followed.
¶ 23 ANALYSIS
¶ 24 This is an appeal from a conviction following a bench trial attacking the fairness of the
trial based on the trial court’s alleged reliance on facts not contained in the record and
questioning of a witness, the sufficiency of the evidence to prove defendant guilty of every
element of the offense beyond a reasonable doubt, and the constitutionality of the criminal
statute under which the trial court convicted defendant.
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¶ 25 Our supreme court “has held that the deliberations of the trial judge are limited to the
record made before [it] during the course of the trial. A determination made by the trial judge
based upon a private investigation by the court or based upon private knowledge of the court,
untested by cross-examination, or any of the rules of evidence constitutes a denial of due process
of law.” [CITATION]. Although “[t]he rule is clear that when
the trial court is the trier of the facts every presumption will be accorded that the judge
considered only admissible evidence and disregarded inadmissible evidence in reaching his
conclusion” ([CITATION]), this presumption is rebutted by statements in the
record indicating the trial judge “considered matters which were not in evidence” (id.). Where
the trial judge considered matters not in evidence, “there is no alternative but to reverse and
remand for a new trial.” Id. In these circumstances “[w]hether a defendant’s due process rights
have been denied is an issue of law, and thus, our review is de novo.” [CITATION] (the defendant argued the trial judge violated his right to due process
when the judge misremembered crucial evidence).
¶ 26 Furthermore, “a trial court has discretion to *** reopen a case on its own motion where a
sound basis for it appears in the record. [Citation.] The propriety of the judicial examination
depends on the circumstances of each case and rests largely in the trial court’s discretion.
[Citation.]” [CITATION]. We review matters committed
to the trial court’s discretion, including matters impacting a defendant’s right to a fair trial, for an
abuse of discretion. See [CITATION] (“When a
defendant argues that his due process rights and right to a fair trial were violated by the State’s
failure to disclose certain evidence in discovery, we review the trial court’s ruling on the matter
for an abuse of discretion.”). “An abuse of discretion occurs when no reasonable person would
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take the view adopted by the court. [Citations.] Moreover, the trial court’s ruling will not be
overturned unless the abuse of that discretion led to manifest prejudice against defendant.”
[CITATION], ¶ 134 (citing [CITATION]).
¶ 27 “When reviewing the sufficiency of the evidence,” “the relevant inquiry is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
[SEGMENT 20]
found the essential elements of the crime beyond a reasonable doubt. [Citation.] This standard of
review applies in cases whether the evidence is direct or circumstantial.” [CITATION], ¶ 48.
¶ 28 “Constitutional challenges carry the heavy burden of successfully rebutting the strong
judicial presumption that statutes are constitutional. That presumption applies with equal force to
legislative enactments that declare and define conduct constituting a crime and determine the
penalties imposed for such conduct.” (Internal quotation marks and citations omitted.) [CITATION], ¶ 9. “The constitutionality of a statute is a question of law,
which is reviewed de novo.” Id.
¶ 29 For the reasons below, we find that the trial court did not deny defendant his right to a
fair trial by considering facts not in evidence or briefly questioning Officer Gallardo, the
evidence was sufficient to prove defendant guilty of every element of AHC beyond a reasonable
doubt, and the AHC statute is constitutional under the United States Constitution and Illinois
Constitution.
¶ 30 FAIRNESS OF DEFENDANT’S TRIAL
¶ 31 First, we turn to defendant’s argument the trial court deprived him of the right to a fair
trial by allegedly relying on facts not in evidence and abdicating its role as a neutral arbiter of the
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facts and adopting the role of a prosecutor when the trial court questioned Officer Gallardo.
Defendant argues the trial court relied on facts not in evidence to find him guilty, thereby
depriving him of his right to a fair trial. Defendant admits this issue was not properly preserved
for review and asks this court to review this issue as a matter of plain error. “To successfully
maintain a claim of either first- or second-prong plain error *** a defendant must prove actual
error.” [CITATION]. That is why, “[u]nder the plain error doctrine, ‘the first step’ is to determine whether any error occurred at all.” [CITATION].
¶ 32 Once again, “the deliberations of the trial judge are limited to the record made before
[them] during the course of the trial. A determination made by the trial judge based upon a
private investigation by the court or based upon private knowledge of the court, untested by
cross-examination, or any of the rules of evidence constitutes a denial of due process of law.”
[CITATION]. Nonetheless,
`“In a bench trial, it is the function of the trial court to determine the
credibility of witnesses, weigh the evidence, draw reasonable inferences
therefrom, and resolve any conflicts in the evidence. [Citation.] The trial court is
‘free to accept or reject as much or as little as it pleases of a witness’ testimony’
[citation] and ‘may take into account her own life and experience in ruling on the
evidence’ [citation]. ***.” [CITATION].
“A trier of fact may infer from facts and circumstances in evidence other
connected facts that reasonably and usually follow according to common
experience. [CITATION.] A trier of fact is not required to disregard inferences that
flow normally from the evidence, nor to seek all possible explanations consistent
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with innocence and elevate them to reasonable doubt, nor to be satisfied beyond a
reasonable doubt as to each link in the chain of circumstances if the evidence as a
whole satisfies the trier of fact beyond a reasonable doubt. [Citation.] [CITATION].
“We need only reverse a court’s determination when the trial court’s
reliance on matters outside the record is prejudicial to one of the parties.
[Citation.] However, ‘[r]eliance on information found [outside] the record is not
reversible error where there is no evidence that it either misled or entered into the
trial court’s determination.’ [Citation.] We afford a trial court every presumption
that it considered only admissible evidence in reaching a conclusion. [Citation.]
‘This assumption will be overcome only if the record affirmatively demonstrates
the contrary, as where it is established that the court’s finding rests on a private
investigation of the evidence, or on other private knowledge about the facts in the
case.’ [Citation.]” [CITATION].
¶ 33 Defendant asserts the record demonstrates the trial relied on the following specific facts
which defendant claims were not in evidence:
1. The blankets were part of the laundry that was in the backseat.
2. The gun was in a location where defendant had placed laundry shortly before.
3. The handgun was found atop a child’s car seat.
4. A blanket had been loosely covering the gun.
5. The handgun certainly would have fallen upon sudden stop of the vehicle.
6. The handgun was large and distinctive.
7. The car was small.
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¶ 34 First, we address defendant’s implication of a distinction between the trial court saying
the handgun was found “atop” the car seat rather than “where the child usually sits,” from which
we can only infer that defendant believes the trial court found the handgun was on top of the
backrest of the car seat rather than on top of the seat of the car seat, as Officer Gallardo testified.
Defendant argues this allegedly inaccurate assumption by the trial court led the trial court to
conclude the handgun would have fallen from the car seat upon a sudden stop. These arguments
fail.
¶ 35 Defendant offers no evidence that is what the trial court meant other than his own
characterization of what “atop” means. We reject defendant’s characterization as refuted by the
record. The State’s statement for the record about where the handgun was found was admittedly
vague. The trial court questioned Officer Gallardo itself to clarify his testimony. It was in
response to the trial court’s questioning that Officer Gallardo testified the gun was found "where
the child usually sits.” The record, rather than establishing that the trial court relied on a fact not
in evidence, establishes that the trial court was keenly interested in and consciously aware of the
exact location where the gun was recovered.
¶ 36 Next, defendant also argues the State offered no evidence of what was or was not a part
of defendant’s laundry, and the trial court’s speculation led the court to conclude the handgun
was in a place where defendant had just placed laundry and therefore he must have seen it.
Defendant argues the officer never testified the blanket was “loosely” covering the handgun.
Defendant argues the conclusion the blanket “loosely” covered the handgun is belied by the
recording from Officer Gallardo’s body worn camera which shows the officer “pulling hard” on
the blanket to remove it. Defendant separately argues the State “never established that a gun
placed on the seat ‘where the child usually sits’ and covered by a blanket would have fallen
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anywhere upon a sudden stop of the vehicle, or that the gun must have been placed on the seat
recently.”
¶ 37 Defendant argues these facts, which allegedly are not part of the record, led the trial court
to reason that because the gun had not fallen then it must have been put there only recently, and
if it were put there recently it must have been put there by defendant, which, defendant argues,
led to the court’s determination that the State proved that defendant “had knowledge of the gun.”
Defendant also argues the State offered no evidence of the size of the handgun or of the car, yet
the trial court relied on the fact the gun was “large and distinctive” and the car was “small” to
find him guilty. Defendant argues that the trial court’s assumption of a fact not in evidence about
the size of the car permitted the court to find the State proved the handgun was in arm’s reach
and, therefore, that defendant constructively possessed the gun. Defendant does not explicitly
argue, as he did with the other alleged facts not in evidence, how the trial court’s alleged
adoption of the fact of the size and distinctiveness of the handgun influenced its decision and
prejudiced him.
¶ 38 The State responds the evidence adduced at trial supported the reasonable inferences that
defendant had recently placed the laundry in the car and that the blanket was part of the laundry.
The State points to evidence that defendant stated he was coming from the laundromat and the
proximity of the blanket to the laundry basket and bag of clothes as supporting the inferences
that the blanket was part of the laundry and had recently been placed in the car. The State argues
the recording from the officer’s body worn camera shows the size of the car and the trial court
expressly based its finding about the size of the car on the video.
¶ 39 The State also argues the recording shows the size and shape of the handgun and, further,
that the officer testified that the handgun was a .9 mm caliber with a laser sight and distinctive
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magazine, both of which support the trial court’s finding that the gun was large and distinctive.
The State points to the officer’s testimony that it appeared the blanket had been thrown into the
seat, and the depiction of the area in the recording, as supporting the inferences that the blanket
“loosely” covered the gun and that the gun would have fallen off the seat in the event of a sudden
stop. The State argues it was for the trial court to decide what the fact the officer had to “pull
hard” on the blanket meant and that the court could have decided it just meant the blanket was
large.
¶ 40 In reply, defendant offers his own interpretation of what the same facts noted by the State
[SEGMENT 21]
mean, positing counter-inferences and what defendant believes to be “the most likely scenario.”
Defendant argues the size of the blanket supports his argument the gun was completely
concealed and, therefore, he did not know it was present. Defendant simply denies that it can be
inferred from the “fact that a small portion of the blanket hung very slightly over the bag of
laundry” (a fact the trial court did not rely on) that defendant placed the blanket in the car and
over the gun.
¶ 41 We find that the trial court did not make any determinations based upon information not
in the record. [CITATION]. Rather, the trial court properly weighed the evidence
and drew reasonable inferences therefrom. Moreover, the trial court was free to accept Officer
Gallardo’s admissible testimony about the blanket and properly took into account its own life
and experience in ruling on the evidence. [CITATION], ¶¶ 54-55. This
record does not affirmatively demonstrate the contrary. Id. Defendant’s arguments are largely
based on inferences consistent with innocence rather than guilt. The trial court was not “required
to disregard inferences that flow normally from the evidence, nor to seek all possible
explanations consistent with innocence and elevate them to reasonable doubt.” [CITATION]
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====== End of Part of a Court Ruling ====== 1-23-1008
App (1st) 172162, ¶ 35. Finally, defendant complains the trial court’s judgment is based on “a
string of inferences.” This assertion does not lead to the conclusion that the evidence is so
improbable or unsatisfactory to create a reasonable doubt of defendant’s guilt. [CITATION], 2024 IL
App (1st) 181491, ¶ 194 (“We will not reverse the *** verdict for lack of evidence unless the
evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt.’ [Citation.]”). “The State has the burden of establishing each element of the
offense beyond a reasonable doubt. However, this burden does not require that the State
demonstrate every link in the chain; rather the court can rely upon the reasonable inferences
which arise from circumstantial evidence.” [CITATION], 241 Ill. App. 3d 986, 992 (1993).
And, “a criminal conviction ‘may be based solely on circumstantial evidence.’ [Citation.]”
[CITATION], 2023 IL App (1st) 220920, ¶ 62.
¶ 42 The finding that “[t]he blanket covering the gun *** went with the laundry defendant
admitted possessing” is a reasonable inference from defendant’s own admission he was just
coming from the laundromat, the nature of the item itself—which defendant admits was a large
blanket—and its proximity to other items that defendant does not dispute were part of the
laundry he had just done—specifically the laundry basket and bag of clothes. The trial court
noted another fact—one which defendant does not dispute—that supports the inference that the
blanket was part of defendant’s laundry: “There were not a lot of other things in the vehicle.” If
the vehicle was primarily carrying what defendant does not dispute was laundry it stands to
reason the blanket was also laundry. Similarly, the finding that the blanket “had been put there
recently” is supported by defendant’s admission he was just coming from the laundromat and the
reasonable inference from the facts and circumstances that the blanket was part of that laundry.
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====== End of Court Ruling ====== 1-23-1008
¶ 43 Furthermore, Officer Gallardo testified about the blanket that, “It looks like it was just
thrown into the car seat.” That, and the trial court’s own observations, are sufficient to
reasonably infer that “[a] blanket had been loosely covering the gun.” One may reasonably infer
from common experience that a “partially folded” blanket that is “just thrown over” a car seat, as
Officer Gallardo testified, as opposed to being pressed down or tucked in, would rest loosely
over the car seat. One may also infer from common experience that regardless how large or
heavy a blanket is, if it is just “thrown over” a car seat it would not press down on an object on
the seat portion of the car seat of its own weight. Similarly here, because it is reasonable to infer
that the blanket sat “loosely” over the car seat, a heavy object like a firearm (one may reasonably
infer the approximate mass of a handgun) could fall upon a sudden stop of the vehicle. In this
instance, however, whether that inference is reasonable from the evidence or not, we find
defendant was not prejudiced by it and, therefore, reversal is not required. [CITATION], ¶¶ 54-55. Defendant argues the trial court used this inference to infer the handgun
had been placed there recently—because it had not fallen—and because it had been placed there
recently, defendant knew about it. We disagree. Although the trial court did find that “[i]t had
been placed there recently, as it would have fallen from its position with a sudden stop of the
vehicle,” this was not the trial court’s reason for finding defendant knew the gun was in the car
within his reach. The trial court wrote, “It would have been impossible to place the laundry
where it was, and not realize a gun was on top of the car seat.”
¶ 44 We find the trial court found knowledge based on the findings (both from the evidence
and reasonable inferences therefrom) that the handgun would have been visible on the seat of the
car seat before laundry was placed in the car, the blanket was part of the laundry, and defendant
placed the laundry—thereby covering the handgun—in the car recently, as he was just coming
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from the laundromat. Finally, the trial court saw the gun, heard a description of the gun, and saw
the car. These facts are undisputed. The trial court’s conclusions about the size of the handgun
and the car were not based on facts not in evidence but on what it heard and saw.
¶ 45 The trial court did not base its judgment on facts not in evidence. “Finding no error on
this contention, we find no plain error or ineffectiveness of counsel.” [CITATION] Defendant’s argument he was denied a fair trial on this basis fails.
¶ 46 Next, defendant argues the trial court “crossed the line between trier of fact and advocate
for the State” when the court questioned Officer Gallardo.
“A criminal defendant who elects to be tried in a bench trial is entitled to
the same fair, patient, and impartial consideration he would be entitled to by a
jury composed of fair, impartial, careful and considerate jurors. [CITATION] *** A
trial judge’s questioning of a witness must be done in a fair and impartial manner,
without showing bias or prejudice against either party. [CITATION]” (Internal
quotation marks omitted.) [CITATION]
¶ 47 This court has explained the trial court’s role in this context: “The trial court has the right
to question witnesses in order to elicit the truth or to bring enlightenment on material issues
which seem obscure.” [CITATION] Further,
“Illinois courts have recognized that the proper function of a judge
includes a duty to ensure that justice is done in criminal trials when, for instance,
a certain fact has not been developed or a certain line of inquiry has not been
pursued, as long as the judge does not in any way become an advocate for one
side or the other. [CITATION]
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To this end, a trial court may, sua sponte, call its own witnesses and
question witnesses called by either party. [CITATION.] What a trial court may not do
is assume the role of an advocate. [CITATION.] But, a suggestion that the State
present evidence proving essential elements of an offense is not an assumption of
the role of a prosecutor. [CITATION.]” [CITATION]
Moreover, “[i]n a bench trial, it is the function of the trial court to determine the
credibility of witnesses [and] weigh the evidence ***. The trial court is ‘free to accept or
reject as much or as little as it pleases of a witness’ testimony.’ [CITATION.]”[CITATION]
¶ 48 Defendant also cites [CITATION] and argues there was no evidence “that a fact had not been
developed or a line of inquiry not pursued” to permit the trial court to interpose, and the court
assumed the role of advocate when the court questioned Officer Gallardo and “used Gallardo’s
answers to support the State’s case.” Defendant argues that the court assumed the function of
advocate and favored the State because the court used facts obtained from its own questioning to
find defendant guilty—specifically, the caliber of the handgun and the size of the car. Defendant
argues that evidence of the fact the trial court assumed the role of prosecutor lies in the fact that
Officer Gallardo could only describe the car as a black Chevy but the court repeatedly described
the car as “small.” Defendant argues the trial court used the size of the car to find the gun was
within defendant’s reach. Defendant does not specify how the caliber of the gun entered into the
court’s decision making and only notes that the court found the gun to be “large and distinctive”
[SEGMENT 22]
based the court’s own questioning of Gallardo.
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¶ 49 We find that the trial court “did not abandon its role as neutral arbiter and assume the role
of a prosecutor.” [CITATION]. The trial court’s questioning was not
extensive. [CITATION] (“A trial judge’s questioning ‘should rarely be extensive,’
although an ‘extensive examination may be justified if the court has reason to believe that a
witness is not telling the truth.’ ”). We disagree with defendant’s claim that there was no fact that
had not been developed when the trial court questioned Gallardo. The exact location where the
gun was recovered had not been developed when the court asked Gallardo, “Where did you
recover it?” The location of the gun was clearly an important fact that needed to be developed.
“And, as this was a bench trial, the court possessed wide latitude, the question related to its fact-
finding role, and the risk of prejudice to [defendant] was low.” [CITATION]
¶ 26 (holding trial court did not abandon its role as neutral arbiter). The risk of prejudice to
defendant from the question itself was low because the answer may have helped defendant. (For
example, if Officer Gallardo had testified the gun was on top of the backrest defendant might
have used that testimony to argue the gun was not in his reach—although we express no opinion
about the efficacy of that argument.)
¶ 50 “To show prejudice in a bench trial, the defendant must show that ‘the tenor of the
court’s questioning indicates the court has prejudged the outcome before hearing all of the
evidence.’ [Citation.]” [CITATION]. There is nothing
to indicate the trial court had prejudged the outcome. The question was a direct request for a
relevant fact, the answer to which may have benefitted either party. In fact, defendant uses his
own interpretation of the evidence of the location of the gun to bolster his argument the trial
court’s findings are not supported by evidence in the record. We find that this question was
asked “in a fair and impartial manner, without in any way showing bias for or prejudice against
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either party to the litigation.” [CITATION]. Furthermore, in this case, like in [CITATION], the
trial court “did not decide *** that the State needed to present more evidence and then order the
State to produce it. Rather, the trial court [elicited] evidence before argument.” Id. ¶ 30.
Therefore, in this case, the questioning was a “proper function of a judge.” [CITATION] ¶ 24 (citing , inter alia, [CITATION]).
¶ 51 Nor had the type of gun and car been developed when the trial court recalled Officer
Gallardo to the stand. Regardless, the trial court’s questioning about the caliber of the gun and
the type of car were “not necessary to prove the State’s case.” Id. ¶ 30. For whatever purpose it
may or may not have been used, the State elicited sufficient evidence for the trial court to find
the handgun was “large and distinctive.” The State asked Officer Gallardo, referring to the
handgun, “What attachments did it have?” Officer Gallardo responded, “It has an extended
magazine and a laser sight.” That evidence elicited by the State is sufficient to permit the trial
court to find the gun “large” (it had an extended magazine) and “distinctive” (it had a laser
sight). As for the size of the car, any testimony elicited by the trial court touching on the size of
the car was not necessary to prove whether the gun was within defendant’s reach. The State
asked, “Was the firearm within arm’s reach of where the defendant had been seated?” Officer
Gallardo responded, “Yes.”
¶ 52 Defendant has failed to establish prejudice from the trial court’s questioning of Officer
Gallardo. We find the trial court did not abuse its discretion.
¶ 53 SUFFICIENCY OF THE EVIDENCE
¶ 54 Defendant argues the State failed to prove beyond a reasonable doubt that defendant had
constructive possession of the handgun. “To prove [defendant] guilty of armed habitual criminal,
the State had to show two elements: (i) [defendant] possessed a firearm and (ii) possession was
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after having been convicted of two qualifying offenses.” [CITATION], 2023 IL App (1st)
192519, ¶ 45. Defendant only disputes whether the State proved possession. In the absence of
actual possession, the State must seek “to prove constructive possession—that [defendant] had
knowledge of the gun’s presence and ‘immediate and exclusive’ control over the area where
officers found it. [Citation.]” Id., [CITATION], 2012 IL App (1st) 102094, ¶ 17 (“When a
defendant is not found in actual possession, the State must prove constructive possession.”).
Defendant argues the State failed to prove that defendant constructively possessed the handgun
because the gun was not visible, defendant did not make any gestures or movements toward the
backseat of the car, no physical evidence links him to the handgun, and defendant made no
incriminating statements.
¶ 55 “A person has actual possession when he has immediate and exclusive control over an
item; actual possession does not require ‘present personal touching’ of that item. [Citation.] A
person has constructive possession when he lacks actual possession but has the intent and
capability to exercise control over the item. [Citation.]” [CITATION], 2023 IL App (1st)
231856, ¶ 22. “The control may be exercised directly or through another person. [Citations.] ‘[I]f
two or more persons share [the] immediate and exclusive control or share the intention and [the]
power to exercise control’ over a thing, ‘then each [one] has possession.’ [Citation.]” [CITATION], 2020 IL App (1st) 163417, ¶ 66.
¶ 56 “[I]t is not the function of the reviewing court to retry the defendant. [Citation.] *** The
credibility of the witnesses, the weight to be given their testimony, and the resolution of any
conflicts in the evidence are within the province of the trier of fact, and a reviewing court will
not substitute its judgment for that of the trier of fact on these matters. [Citation.]” [CITATION], 2022 IL
App (1st) 171509, ¶ 48. “We have recognized that constructive possession often involves
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‘entirely circumstantial’ evidence [citation].” [CITATION]. ¶ 45.
Circumstantial evidence is sufficient to sustain a criminal conviction. Id. ¶ 49.
“Circumstantial evidence is sufficient to sustain a criminal conviction,
provided that such evidence satisfies proof beyond a reasonable doubt of the
elements of the crime charged. [Citation.] The trier of fact need not be satisfied
beyond a reasonable doubt as to each link in the chain of circumstances; it is
sufficient if all of the evidence taken together satisfies the trier of fact beyond a
reasonable doubt of the defendant’s guilt. [Citation.] To prove guilt beyond a
reasonable doubt does not mean that a [trier of fact] must disregard the inferences
that flow normally from the evidence before it.” [CITATION].
Nor is the trier of fact “required to *** seek all possible explanations consistent with innocence
and elevate them to reasonable doubt. [Citation.] In other words, the State need not disprove or
rule out all possible factual scenarios in order to sustain its burden.” [CITATION]. “We will not reverse the *** verdict for lack of evidence unless the
evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt.’ [Citation.]” [CITATION].
¶ 57 In his opening brief, defendant did not make any specific arguments that the State failed
to prove he had “immediate and exclusive control over the area where the firearm is found.”
Although the State does not argue forfeiture, the State does assert, repeatedly, that defendant is
not challenging the “control” factor for constructive possession. Defendant refutes this
contention, arguing in reply that he did argue the State failed to prove “control” because
defendant challenged the sufficiency of the evidence to prove constructive possession in general,
- 23 - 1-23-1008
and defendant cited cases in which the court found a lack of “control.” The State is correct that
defendant’s opening brief did not argue that the State failed to prove defendant had control over
the area where the firearm is found.
“Arguments raised for the first time in a reply brief need not be addressed
by this court. [Citation.] Besides maintaining consistency and uniformity,
avoiding confusion, and preventing gamesmanship, Rule 341(h)(7) prevents
unfairness to an adverse party who would have no notice of the issue or an
opportunity to provide a response. [Where an] issue could have been raised in the
principle brief but was not, we decline to entertain it.” [CITATION]
¶ 58 Although the issue of control is not properly before this court, we find defendant’s newly
raised arguments that the State failed to prove control unpersuasive. 1
¶ 59 Defendant argues the State failed to prove control because he did not own the vehicle and
[SEGMENT 23]
“his status as the driver did not establish his possession of the entire contents of the vehicle.”
“[W]e agree with *** defendant that ownership is not dispositive,” but [it] may be relevant or
“probative of the issue of control.” [CITATION] Ownership is not a necessary element of control for purposes of constructive possession and plays no part in
this case. However, “direct evidence of a defendant driving a vehicle is surely sufficient evidence
of control.” [CITATION] Defendant’s new argument the State failed
to prove the “control” element of constructive possession fails. Defendant is correct only in that
1
See [CITATION] (where the State raised the issue of
abandonment for the first time in its reply brief, the court found the issue was not properly before
the court but, nonetheless found the State failed to carry its burden of proving the incriminating
property was abandoned), vacated on other grounds, [CITATION].
- 24 - 1-23-1008
“his status as the driver did not establish his [knowing] possession of the entire contents of the
vehicle.”
¶ 60 “[K]nowledge may often be inferred from one’s control over an area. [Citation.] Such an
inference is certainly not always appropriate.” [CITATION], ¶ 45. “While
any sort of control will satisfy the first component of constructive possession, *** only ‘regular,
ongoing control’ may give rise to an inference of knowledge.” (Emphasis added.) Id. In the
absence of “regular, ongoing control” the State must present other evidence of knowledge, which
may include “circumstantial evidence from which [the] defendant’s knowledge could be
inferred.” [CITATION]. The State does not have to prove the handgun was
in plain view at all times, as long as defendant had an opportunity to observe it. See [CITATION]. For the reasons stated below, we find the State did
present evidence of knowledge other than defendant’s status as the driver.
¶ 61 Defendant also argues that the trial court misplaced its reliance on [CITATION], because [CITATION] is distinguishable in that, in [CITATION], the defendant was alone in
the car, fled from police, and the gun was hidden in a way that called attention to its presence. In
[CITATION], the court found that the defendant had control of the vehicle because the defendant “was
its driver and sole occupant.” [CITATION], ¶ 35. It is clear from [CITATION]
that it did not only rely on the fact the defendant was alone in the car but instead, the fact the
defendant was alone in the car was just additional “evidence for a rational trier of fact to find that
[the] defendant controlled the vehicle from which the contraband was discovered.” Id. This
conclusion is proven by the [CITATION] in support of this finding to [CITATION],
for the proposition that “ ‘because the defendant was the driver of the vehicle, and because he had merely a lone passenger, defendant had
- 25 - 1-23-1008
immediate and exclusive control of the inside of the automobile’ for purposes of constructive
possession of methaqualone recovered from under the front passenger’s seat” (emphasis added),
and [CITATION] (“The defendant had immediate and
exclusive control over the area in which the officer found the gun. The presence of the other men
in the car does not negate defendant’s constructive possession of the concealed weapon.”)
[CITATION], ¶ 35.
¶ 62 Additionally, the fact the defendant in [CITATION] fled was a relevant, but not a necessary,
fact in support of the inference of the defendant’s knowledge of the presence of the handgun. See
id. ¶ 29 (introducing evidence of defendant’s flight, along with other evidence, by stating “[a]lso
supporting the inference of defendant’s knowledge”). The [CITATION] court did rely, in part, on the
fact that after manipulating “the compartment containing the firearm, [it was] immediately
visible” and “was located so close to the driver’s area and was readily accessible upon
‘manipulation’ [to] suggest the firearm was intentionally placed there to be readily accessible to
the driver” to find that the evidence was sufficient to prove the defendant knew the firearm was
in the vehicle. Id. ¶ 38. Nothing in [CITATION] suggests that its factual determinations are necessary
factors to find knowledge of the presence of contraband. The [CITATION] court merely applied the
facts of the case before it to the question of whether “the contraband [was] located in a place
over which the defendant had ‘regular ongoing control’ and [was] ‘an item that human
experience teaches is rarely, if ever, found unaccountably in such a place.’ [Citation.]” (id. ¶ 37)
to find that defendant knew the firearm was in the vehicle. The facts of this case satisfy those
standards. Defendant’s attempt to distinguish [CITATION] is unavailing.
¶ 63 Turning to the question of defendant’s knowledge, and control, in [CITATION],
a jury found the defendant guilty of aggravated unlawful use of a weapon where the
- 26 -
====== 1-23-1008
defendant was a passenger in a car and after an inventory search of the car police recovered a
handgun beneath the defendant’s seat. [CITATION]. Before trial, the defendant
alternatively told police the driver of the vehicle had shown the defendant the gun in the
defendant’s residence, after which the defendant placed the gun on a table, and that the driver
had shown the defendant the gun in the car after which the defendant returned it and exited the
car. [CITATION]. At trial, the defendant testified he had no knowledge of the gun in the vehicle and denied
making any statements about the driver showing the defendant the gun. [CITATION].
¶ 64 The defendant in [CITATION] argued that the State failed to prove the defendant had
knowledge of the gun in the vehicle. [CITATION]. The court held that it was incumbent on the State
to present some circumstantial evidence of knowledge of the presence of the weapon. [CITATION].
The court stated that “[a] defendant’s mere presence in a car, without more, is not evidence that
he knows a weapon is in the car.” [CITATION] (citing [CITATION]). The court found that some factors from which knowledge could be inferred include “(1)
the visibility of the weapon from defendant’s position in the car, (2) the period of time in which
the defendant had an opportunity to observe the weapon, (3) any gestures by the defendant
indicating an effort to retrieve or hide the weapon, and (4) the size of the weapon.” [CITATION].
But the [CITATION] court also found that “[c]ourts should also consider any other relevant
circumstantial evidence of knowledge, including whether the defendant had a possessory or
ownership interest in the weapon or in the automobile in which the weapon was found.” [CITATION] (citing [CITATION]). In [CITATION], the State “failed to introduce any evidence
that [the defendant] had knowledge of the weapon’s presence in the vehicle in which the
defendant was the passenger.” [CITATION].
- 27 - 1-23-1008
¶ 65 Subsequently, in [CITATION], the defendant argued that “his conviction must be
reversed where there was nothing connecting him to [drugs recovered from ‘the pouch behind
the driver’s seat of the car in which he was a passenger’] aside from his mere presence in the car,
which [the defendant] maintains is insufficient as a matter of law.” [CITATION], ¶ 36. The [CITATION] court found that “[w]hen there is no direct evidence of
knowledge of contraband in a car, reviewing courts look to four factors, derived from [CITATION], and cited in [CITATION], to
determine whether the State presented sufficient circumstantial evidence from which the
defendant’s knowledge may reasonably be inferred.” Id. ¶ 39. The court listed the “Bailey
factors” and further stated that the “State cannot rely on a defendant’s mere presence to establish
knowledge that a controlled substance is in a vehicle.” Id. (citing [CITATION]). The [CITATION] court,
relying exclusively on the “Bailey factors,” found that the State “failed to present sufficient
evidence that [the] defendant had knowledge of the presence of the bag of drugs as to establish
constructive possession.” Id. ¶ 44 (“Having considered the Bailey factors, we conclude that in
this case, the State failed to present sufficient evidence that defendant had knowledge of the
presence of the bag of drugs so as to establish constructive possession.”).
¶ 66 In this case, defendant argues that applying the “Bailey factors” to this case
“demonstrates that the State failed to prove that [defendant] knowingly possessed the gun the
police recovered from the back seat of [defendant’s] sister’s car. Defendant argues (1) the
handgun was not visible to defendant—and in support thereof defendant argues the State failed
to prove the blanket covering the gun was part of defendant’s laundry; (2) there is no evidence as
to how long the gun was in the car and therefore no evidence that defendant had any opportunity
- 28 - 1-23-1008
[SEGMENT 24]
to observe the handgun; (3) there was no evidence of defendant attempting to retrieve or hide the
handgun, nor that defendant made any furtive movements toward the back seat; (4) the size of
the gun—“ ‘small’ enough to sit on the child’s car seat completely out of sight—does not support
the conclusion that [defendant] was aware of its presence;” and (5) any additional factors of
knowledge do not support his conviction where (i) there is a lack of physical evidence tying
defendant to the handgun, (ii) defendant did not try to flee, and (iii) defendant cooperated with
police and never made an admission of guilt or otherwise display a guilty conscious. Defendant
argues that under [CITATION], his mere presence in the car, which he argues is the only fact the State
proved, is not enough to prove knowledge. Defendant concludes “the State failed to establish
constructive possession beyond a reasonable doubt,” and this court should reverse defendant’s
AHC conviction outright.
¶ 67 The State responds defendant’s status as the driver, time in the car, and the location and
size of the handgun prove defendant had knowledge and control of the firearm. The State argues
that defendant was not “merely present” in the vehicle but was the driver, as the driver defendant
had control over the vehicle’s contents, and that control raised the reasonable inference
defendant had knowledge of the firearm notwithstanding the passenger’s access to the firearm.
The State also argues that defendant had control over the firearm because defendant was the
driver and because of the location of the handgun—within arm’s reach where “firearms are not
normally found.” The State argues that defendant’s control “over the vehicle’s contents generates
a reasonable inference of his knowing possession of the weapon.” The State disputes defendant’s
analysis of the [CITATION] factors, arguing (regarding the first factor) that the evidence raises a
reasonable inference that the blanket covering the handgun was part of the laundry defendant
moved in and out of the vehicle, and the firearm, which was easily identifiable as such, would
- 29 - 1-23-1008
have either been visible when defendant placed the blanket over it or that defendant placed it
there himself. As to the remaining factors, the State argues it did not have to elicit evidence as to
every factor to establish defendant’s constructive possession of the handgun because “Bailey’s
list is not exhaustive, and a finding of knowledge does not require that every factor on the list be
met.” Rather, the State argues, the circumstantial evidence “all supported the [trial] court’s guilty
verdict.”
¶ 68 First, we agree with the State that it was not required to produce evidence of every
“Bailey factor” to prove defendant constructively possessed the handgun. As the State notes,
even the Bailey court stated that “[c]ourts should also consider any other relevant circumstantial
evidence of knowledge ***.” [CITATION]. This court has recognized that
“[t]he Bailey factors do not *** constitute the exclusive means for determining whether a vehicle
occupant knew that contraband was present” ((emphasis in original) [CITATION], ¶ 45, see also [CITATION], ¶ 19 (“[t]he court’s list
of factors was not exclusive”)), and that we are not required to apply them in every case (see
[CITATION], ¶ 19 (“the [Bailey] court’s list of factors was not
exclusive. [Citation.] Given the different circumstances in the current case, we believe the factors
considered in Bailey are less relevant here.”)). The foregoing notwithstanding, “the period of
time in which [defendant] had an opportunity to observe the weapon” ([CITATION] (listing factors)) weighs in favor of inferring that defendant had knowledge of the handgun.
The evidence was sufficient to produce reasonable inferences that defendant placed the blanket
in the car, and thus over the handgun visible on the seat of the car seat, as part of the laundry
defendant admitted he had just done. A reasonable trier of fact could infer defendant had the
opportunity to observe the weapon when putting the laundry in the car to go to the laundromat,
- 30 - 1-23-1008
taking it out to do the laundry, and a third time putting the laundry back in the car. Any would
have provided an opportunity to observe the handgun on the car seat.
¶ 69 Second, while defendant is correct that his “mere presence” in the vehicle, alone, is
insufficient to establish his knowledge of the presence of the firearm ([CITATION]), it is also true that defendant’s status as the driver is
sufficient to establish that defendant had immediate and exclusive control over the area where
the weapon was found (uncased, covered by a blanket, on the seat of a car seat, in the middle of
the backseat of the vehicle defendant was driving). [CITATION]). And “[p]roof that a
defendant had control over the premises where the contraband is found gives rise to an inference
of knowledge and possession of that contraband” ([CITATION]).
¶ 70 In Hampton, the court held that for an inference to arise that the defendant had
knowledge of a handgun within the vehicle’s glove compartment, “the State had to demonstrate
that [the] defendant had regular, ongoing control over the vehicle that he was driving.” [CITATION]. Alternatively, the State must adduce “other
evidence establishing knowledge of the weapon” which may include circumstantial evidence.
[CITATION] (“knowledge may, and most often must, be
proved by circumstantial evidence.”). There was no evidence and we do not find that defendant
had “regular, ongoing control” of the vehicle, but the handgun, even covered by the blanket, was
“an item that human experience teaches is rarely, if ever, found unaccountably in such a place.”
[CITATION]. Nonetheless, the evidence established more than defendant’s
- 31 - 1-23-1008
“mere presence in the vehicle.” The State adduced additional circumstantial evidence of
defendant’s knowledge of the handgun.
¶ 71 The handgun was found in the middle of the backseat on the seat portion of the car seat
and would have been in plain view if it were not covered by the blanket; and as previously
discussed, the evidence permitted the reasonable inference that the blanket found covering the
handgun was part of the laundry, that defendant placed the laundry in the car either before or
after leaving the laundromat, and that defendant would have seen the handgun on the car seat
when defendant put the laundry in the car (or, as Officer Gallardo testified, tossed the blanket
over the car seat). We do not need to find that defendant put the handgun on the car seat or that
defendant intentionally tried to hide the gun with the blanket (although both are reasonable
inferences from the evidence). All that is required to establish defendant’s constructive
possession of the handgun is that defendant “had knowledge of the presence of the contraband,
and had control over the area where the contraband was found.” [CITATION], ¶ 27 (citing [CITATION] at
1031). It is also irrelevant that defendant’s passenger had an equal ability to exercise control over
the firearm or may have also known of its presence. “Constructive possession is not diminished
by evidence of others’ access to contraband.” [CITATION], ¶ 27. It is
“settled law that constructive possession of contraband can be established even where possession
is joint or others have access to the area where the contraband is recovered.” [CITATION], ¶ 43. The State proved that defendant had immediate and
exclusive control over the area where officers found the handgun and knowledge of the gun’s
presence in the vehicle. [CITATION], ¶ 17. The evidence admitted at trial and the reasonable inferences therefrom were
- 32 - 1-23-1008
sufficient to permit the trier of fact to find beyond a reasonable doubt that defendant
constructively possessed the handgun.
¶ 72 CONSTITUTIONALITY OF AHC UNDER THE SECOND AMENDMENT
¶ 73 Defendant argues the AHC statute is unconstitutional on its face and as applied to
defendant because it violates the second amendment to the United State Constitution. A facial
challenge requires a showing that the statute in question is unconstitutional under any set of
facts. [CITATION], ¶ 12. A conviction based on a facially
unconstitutional statute is void ([CITATION], ¶ 67), and the issue of the
constitutionality of the statute may be raised by a defendant for the first time on appeal ([CITATION], ¶ 8).
¶ 74 “[A]n as-applied challenge requires a showing that the statute is unconstitutional as it
applies to the specific facts and circumstances of the challenging party.” [CITATION], ¶ 12. “A facial challenge fails if we can conceive of any set of circumstances in
which the statute could be validly applied—including as applied to the very party before us.” [CITATION], ¶ 48 (citing [CITATION], 125
(2006) (“if as-applied challenge fails, facial challenge necessarily fails”)).
“Because facial and as-applied constitutional challenges are distinct
actions, it is not unreasonable to treat the two types of challenges differently ***.
By definition, an as-applied constitutional challenge is dependent on the particular
circumstances and facts of the individual defendant or petitioner. Therefore, it is
paramount that the record be sufficiently developed in terms of those facts and
circumstances for purposes of appellate review.” [CITATION]
[SEGMENT 25]
- 33 - 1-23-1008
, ¶¶ 29-30, overruled on other grounds by [CITATION]
, ¶ 42.
¶ 75 In [CITATION], the court held that it could review an as applied challenge on appeal if the
record was sufficiently developed. The court found that the “[d]efendant concedes he did not
raise the issue previously but argues the record is sufficiently developed for us to review his
claim, and upon review of the record, we agree. See [CITATION], 2017 IL 120655, ¶¶ 29-32,
overruled on other grounds by [CITATION], 2023 IL 127666, ¶ 42 (finding where all relevant facts
and circumstances are contained in the record, a claim may be raised and reviewed on appeal).”
[CITATION], 2024 IL App (3d) 230113, ¶ 17. Similarly, here, defendant’s criminal history is
undisputed and it is unclear how further investigation into whether defendant is a “violent” felon
“would aid us in determining whether the felon dispossession statutes have been constitutionally
applied to defendant” where the second amendment, article I, section 22, nor the AHC statute
draw any distinction between “violent” felonies and “nonviolent” felonies. See id. ¶ 18.
¶ 76 Although the State argues defendant forfeited his as-applied challenge by failing to raise
it in the trial court, we find that the record is sufficiently developed for this court to address the
challenge. Id. ¶ 17. Therefore, we begin with defendant’s as-applied challenge because if the
statute is constitutional as applied to defendant then there is necessarily a set of facts under
which the statute is constitutional. See [CITATION], 2023 IL App (1st) 230121-U, ¶ 14.
¶ 77 Defendant argues the AHC statute violates the second amendment under the test
announced by the United States Supreme Court in [CITATION],
597 U.S. 1 (2022). In [CITATION], the Supreme Court announced a two-part test to determine whether
statutes that regulate the right to keep and bear arms violate the second amendment. [CITATION], 597
U.S. at 24. Post-[CITATION], “the standard for applying the Second Amendment is as follows: When
- 34 - 1-23-1008
the Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id.
To determine whether a regulation is “consistent with the Nation’s historical tradition of firearm
regulation,”
“[a] court must ascertain whether the new law is ‘relevantly similar’ to
laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance
struck by the founding generation to modern circumstances.’ [CITATION.] ***
Why and how the regulation burdens the right are central to this inquiry.
[CITATION.] For example, if laws at the founding regulated firearm use to address
particular problems, that will be a strong indicator that contemporary laws
imposing similar restrictions for similar reasons fall within a permissible category
of regulations. Even when a law regulates arms-bearing for a permissible reason,
though, it may not be compatible with the right if it does so to an extent beyond
what was done at the founding. And when a challenged regulation does not
precisely match its historical precursors, ‘it still may be analogous enough to pass
constitutional muster.’ [CITATION.] The law must comport with the principles
underlying the Second Amendment, but it need not be a ‘dead ringer’ or a
‘historical twin.’ [CITATION.]” [CITATION]
¶ 78 The first step of the Bruen test, whether the second amendment’s “plain text covers an
individual’s conduct,” requires “a ‘textual analysis’ focused on the ‘ “normal and ordinary” ’
meaning of the Second Amendment’s language.” [CITATION] That analysis by the Supreme Court found
that the second amendment protects “law-abiding citizens.” [CITATION] (“For most
of our history, the Bill of Rights was not thought applicable to the States, and the Federal
Government did not significantly regulate the possession of firearms by law-abiding citizens.”),
see also [CITATION] (Stevens, J., joined by Souter, J., Ginsburg, J., and Breyer, J.,
dissenting) (“when it finally drills down on the substantive meaning of the Second Amendment,
the Court limits the protected class to ‘law-abiding, responsible citizens’ ”), [CITATION] (Alito, J., concurring) (“[CITATION] correctly recognized that the Second Amendment codifies the
right of ordinary law-abiding Americans to protect themselves from lethal violence by
possessing and, if necessary, using a gun.”).
¶ 79 [CITATION] did not disturb that conclusion. [CITATION] (Alito, J., concurring) (“Our
holding decides nothing about who may lawfully possess a firearm or the requirements that must
be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may
possess. Nor have we disturbed anything that we said in [CITATION] or [CITATION] about restrictions that may be imposed on the possession or carrying of guns.”). In
[CITATION] and [CITATION] the Supreme Court held that states may restrict felons from possessing
firearms. [CITATION] (“nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons”), [CITATION]
(“We made it clear in [CITATION] that our holding did not cast doubt on such longstanding regulatory
measures as ‘prohibitions on the possession of firearms by felons ***.’ [CITATION] We repeat
those assurances here.”).
¶ 80 In this case defendant argues that there is no historical analogue for a permanent, status-
based revocation of the right to keep and bear arms applicable to felons and therefore the AHC
- 36 - 1-23-1008
statute is not consistent with the Nation’s historical tradition of firearm regulation. This is, of
course, an argument that the AHC statute does not pass constitutional muster under the second
step of the Bruen analysis. Defendant admits that “[t]o evaluate the constitutionality of Illinois’
[AHC] statute this Court must answer two questions: (1) whether [defendant] falls within the
Second Amendment’s protections at all, and (2) if he does, whether the historical record justifies
a permanent ban on his ability to possess any firearm at any time.” (Emphasis added.) As for the
first question, defendant argues he is protected by the second amendment because it applies to
“all Americans.” Defendant cites [CITATION] for the
proposition that a felon’s possession of a firearm falls under the conduct protected by the second
amendment because, defendant argues, pursuant to [CITATION], “a felon’s status is irrelevant under
the first step of the Bruen test.” Defendant essentially argues that [CITATION] confirms that Bruen
abrogated any presumption that barring felons from possessing firearms is permissible under the
second amendment because Bruen and [CITATION] place the focus of the first step of the analysis on
conduct—the conduct of possessing a firearm—and not status—in this case the status of being a
felon.
¶ 81 We reject defendant’s assertion that his conduct is protected by the second amendment
and we disagree with the suggestion that a party’s status as a felon is “irrelevant at this stage of
the analysis.” [CITATION], ¶ 89. The [CITATION] court found that the conduct
at issue was “the defendant’s possession of the firearm after having been twice convicted under
any of the myriad of enumerated felonies [in the AHC statute], which in this case, both happen to
be nonviolent.” [CITATION], ¶ 86. Nonetheless, the court found that
“[u]nder Bruen, the first step asks only whether ‘the Second Amendment’s plain
text covers an individual’s conduct.’ [Citation.] This step does not contemplate
- 37 - 1-23-1008
the actor or the subject. [Citations.] Accordingly, the defendant’s status as a felon
is irrelevant at this stage of the analysis. Instead, the defendant’s possession of a
firearm is ‘presumptively constitutional.’ [Citation.]” Id.
We disagree.
¶ 82 Under [CITATION], the first step looks at the conduct actually being regulated:
“At the first step, the government may justify its regulation by
‘establish[ing] that the challenged law regulates activity falling outside the scope
of the right as originally understood.’ [CITATION] The Courts of Appeals then
ascertain the original scope of the right based on its historical meaning.
[Citation.]” (Emphases added.) [CITATION]
This court has recognized that “[f]irst, we must identify the conduct at issue to determine
whether that conduct falls under the ‘plain text’ of the second amendment.” [CITATION] The conduct at issue under the AHC statute is not, broadly and
generally, possession of a firearm. If it was, it would probably be unconstitutional. [CITATION] (“New York’s proper-cause requirement violates the Fourteenth Amendment in that it
[SEGMENT 26]
prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep
and bear arms.”). Rather, the conduct at issue under the AHC statute is the possession of firearms
by felons. “If the government can prove that the regulated conduct falls beyond the
Amendment’s original scope, ‘then the analysis can stop there; the regulated activity is
categorically unprotected.’ [Citation.]” (Emphases added.) [CITATION]
¶ 83 In [CITATION], the Supreme Court’s first word was that it had “recognized that the Second and
Fourteenth Amendments protect the right of an ordinary, law-abiding citizens to possess a
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handgun in the home for self-defense.” [CITATION]
“Though the [CITATION] did not define ‘law-abiding citizen,’ previous
Supreme Court precedent identifies categories of people who have long been
lawfully prevented from bearing arms. In [CITATION], the
Supreme Court cautioned that
‘nothing in [its] opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of
arms.’ [CITATION]
There is little to expound here: by its plain language, the Supreme
Court explicitly sanctioned the prohibition on the possession of firearms by
felons.” [CITATION]
¶ 84 Further, the second amendment “does not distinguish between violent felonies and non-
violent felonies.” [CITATION] In [CITATION], the court held:
“Under the AHC and UUWF statutes, both of which are facially
constitutional, defendant is prohibited from possessing a firearm due to his status
as a felon, irrespective of the violent or nonviolent nature of his convictions. We
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decline to invade the province of the legislature to determine which convictions
warrant a loss of rights.” [CITATION]
see also [CITATION] (“defendant’s previous felony
convictions make him not a law-abiding citizen and, therefore, not protected by the second
amendment. By incurring a felony conviction, even a nonviolent felony conviction, a citizen
forever loses the constitutional right to have a firearm for the defense of his person and his
house”), [CITATION] (rejecting the defendant’s
request for the court to “interpret ‘law-abiding citizens’ to include those who had been convicted
of nonviolent felonies”), [CITATION] (citing Brooks, [CITATION]). Thus, the constitutionality of disarming felons extends to nonviolent
felons.
¶ 85 We find that the regulated conduct under the AHC statute “falls beyond the
Amendment’s original scope” because the scope of the second amendment reaches only “law-
abiding citizens.” [CITATION] (“It is undisputed that petitioners Koch and Nash—
two ordinary, law-abiding, adult citizens—are part of ‘the people’ whom the Second Amendment
protects.”), [CITATION] (“The Bruen Court could not have
been more clear that its newly announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like defendant.”), [CITATION] (“Bruen limits the second amendment’s scope to (1) citizens who are (2) law-
abiding and (3) responsible, and (4) who use firearms for self-defense.”), [CITATION] Defendant, a twice-convicted felon, is not a law-abiding citizen.
¶ 86 This conclusion is not “defeated by Rahimi,” as defendant suggests. In Rahimi, the
Supreme Court addressed the constitutionality under the second amendment of a statute that
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“prohibits an individual subject to a domestic violence restraining order from possessing a
firearm if that order includes a finding that he ‘represents a credible threat to the physical safety
of [an] intimate partner,’ or a child of the partner or individual.” [CITATION]. The
Court rejected the Government’s argument that Rahimi could be disarmed “simply because he is
not ‘responsible.’ ” Id. at 1903. The Court found that the term “responsible” is vague and that
“[i]t is unclear what such a rule would entail.” Id.
¶ 87 Although the Court “used the term ‘responsible’ to describe the class of ordinary citizens
who undoubtedly enjoy the Second Amendment right” the Court “did not define the term and
said nothing about the status of citizens who were not ‘responsible.’ ” But we do not find, despite
what defendant claims about the State’s argument, that defendant is not someone to whom the
second amendment applies because he is not “responsible.” The second amendment does not
protect defendant’s right to possess a firearm because he is not a law-abiding citizen.
¶ 88 Defendant cites a dissent in Rahimi in an attempt to refute “the ‘law abiding *** citizen’
test.” The dissenting justice wrote:
“At the outset of this case, the Government contended that the Court has
already held the Second Amendment protects only ‘responsible, law-abiding’
citizens. [Citation.] The plain text of the Second Amendment quashes this
argument. The Amendment recognizes ‘the right of the people to keep and bear
Arms.’ (Emphasis added.) When the Constitution refers to ‘the people,’ the term
‘unambiguously refers to all members of the political community.’ ” [CITATION] (Thomas, J., dissenting).
We reject the dissent’s contention that the second amendment protects anyone other than “law
abiding citizens.” See [CITATION].
- 41 - 1-23-1008
been more clear that its newly announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like defendant.”).
¶ 89 Statutes prohibiting felons, including nonviolent felons, from possessing firearms are
presumptively constitutional. [CITATION] (“Heller never established a categorical
rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact,
our opinion stated that many such prohibitions, like those on the possession of firearms by
‘felons and the mentally ill,’ are ‘presumptively lawful.’ ”). Therefore, the analysis stops here
([CITATION]); the AHC statute is constitutional under the second amendment as
applied to defendant—a twice convicted felon—and, necessarily, it is also facially constitutional
[CITATION].
¶ 90 CONSTITUTIONALITY OF AHC UNDER ARTICL I, SECTION 22
¶ 91 Defendant argues the AHC statute is unconstitutional on its face and as applied to
defendant under article I, section 22 of the Illinois constitution. Article I, section 22, reads as
follows: “Subject only to the police power, the right of the individual citizen to keep and bear
arms shall not be infringed.” Ill. Const. art. I, § 22. Defendant argues that by conferring the right
to keep and bear arms on “the individual citizen” rather than “the People” (compare U.S. Const.
amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.”)), the right to keep and bear arms
under the Illinois constitution is broader than under the second amendment and protects a
broader class of individuals, including those “with a legal status that might otherwise place them
outside the political community,” that includes defendant “as an ‘individual citizen’ of this
State.”
- 42 - 1-23-1008
¶ 92 Defendant also argues that the prefatory language “[s]ubject only to the police power”
does not narrow defendant’s right so as to permit permanent felon dispossession. Defendant
argues that the record of the Constitutional Convention shows that the delegates were concerned
with regulating “certain types of arms under the police power, not certain categories of people.”
To the extent the delegates expressed concern about those who committed crimes possessing
firearms, the comments reveal a greater concern for “felony convictions that revealed a tendency
for violence,” and those comments “have to be read consistently with the felon dispossession
laws in effect at the time.” Defendant argues that at the time of the convention there was no law
permanently dispossessing felons of firearms, therefore, the language “[s]ubject to the police
power” “cannot be read to countenance permanent felon dispossession.” As applied to defendant,
defendant argues that “because [defendant] was not using the gun in a dangerous way, nor were
his prior convictions violent, the Illinois Constitution as applied to [defendant] does not preclude
his possessing a gun.”
¶ 93 The State responds that assuming arguendo that article I, section 22, does embrace
defendant regardless of his felon status, the AHC statute is a proper exercise of the police power.
In apparent response to defendant’s argument that the meaning of “the police power” in article I,
section 22, is only the power to restrict violent felons’ possession of firearms temporarily, the
State argues that, as explained in [CITATION], our supreme court in [CITATION], “recognized that
[SEGMENT 27]
Illinois’ police power was ‘intended to provide an “extraordinary degree of control” over the
possession of firearms’ and allows laws ‘restraining or prohibiting anything harmful to the
welfare of the people.’ [Citations.]” The State argues that this court may not overrule that finding
by our supreme court.
- 43 - 1-23-1008
¶ 94 In [CITATION], a village ordinance completely banned the possession of all operable
handguns with limited exceptions. [CITATION]. Our supreme court had to
decide the scope of article I, section 22, and whether the ordinance “passes muster under it.” [CITATION].
The court found that the difference in the language in article I, section 22 from the language in
the second amendment “were intended to broaden the scope of the right to arms from a collective
one applicable only to weapons traditionally used by a regulated militia [citation], to an
individual right covering a wider variety of arms.” [CITATION]. However, “the explicit recognition
of ‘the police power’ [is] a limitation on the liberty the provision affords.” [CITATION]. Based on the
report of The Bill of Rights Committee at the Constitutional Convention, our supreme court
recognized that “the possession and use of arms is subject to an extraordinary degree of control
under the police power.” (Internal quotation marks omitted.) [CITATION]. The committee report
described regulatory measures “that had been approved in other States as not infringing on
individual right to arms” including “a total prohibition of ‘the sale of some weapons in some
circumstances.’ ” [CITATION].
¶ 95 Our supreme court acknowledged, similarly to defendant’s argument in this case, that
"[t]he meaning of a constitutional provision depends, of course, on the common understanding of
the citizens who, by ratifying the Constitution, gave it life.” [CITATION]. However, the court also
found (and defendant did not address) that “[t]his understanding *** is best determined by
referring to the common meaning of the words used.” [CITATION]. Our supreme court found
that the plain language of article I, section 22, “leaves the right to bear any type of arms subject
to the police power” and “belied any assertion that a majority of the voters must have interpreted
the plain words of the provision as ruling out any specific regulatory measure.” [CITATION]. “The
official explanation which all voters received also left considerable leeway for regulation of guns
- 44 - 1-23-1008
by stating that under section 22 ‘the right of the citizen to keep and bear arms cannot be
infringed, except as the exercise of this right may be regulated by appropriate laws to safeguard
the welfare of the community.’ [CITATION]” Id. The court found that this interpretation is
“consistent with the interpretation of the provision advanced by the delegates who voted to adopt
it.” Id. In rejecting an argument that the “police power” in article I, section 22 permitted the
regulation of all classes of firearms but not a complete prohibition of any class of firearm, our
supreme court stated that it “has long recognized that the police power comprehends laws
‘restraining or prohibiting anything harmful to the welfare of the people’ [CITATION] and no
convincing evidence has been produced that the voters ascribed a different meaning to the term
in the context of section 22.” (Emphasis added.) Id. at 496.
¶ 96 Because the issue in [CITATION] was a complete ban on handguns, our supreme court held
that, “[b]ased on the floor debates and the official explanation, as well as on the language of the
provision, it is apparent to us that section 22, as submitted to the voters, meant that a ban on all
firearms that an individual citizen might use would not be permissible, but a ban on discrete
categories of firearms, such as handguns, would be.” Id. at 498. Notably, the court rejected an
argument that “there is no principle which permits the complete abridgment of one form of
constitutionally protected behavior whenever other forms of behavior which enjoy the same form
of protection and lead to a substantially similar end are permitted.” (Emphasis added.) Id. at 499.
¶ 97 We interpret [CITATION] to mean the plain language of article I, section 22 does not rule
out a complete and permanent abridgment of possession of firearms by felons. The [CITATION]
court considered whether the ordinance at issue was a proper exercise of the police power.
Although a different statute is involved here, apropos of this case our supreme court found that
“the right to arms secured by the Illinois Constitution, which did not exist prior to 1970, is
- 45 - 1-23-1008
subject, as we have explained, to substantial infringement in the exercise of the police power
even though it operates on the individual level.” Id. at 509. Subsequently, the Third District of
this court held that “the AHC *** statute[ is] a proper exercise of the state’s police power, which
allows the state to exert, through legislation, control over the dangers posed by firearms and the
people who might use them to do harm.” [CITATION], ¶ 43.
¶ 98 We agree that the AHC statute is a proper exercise of the state’s police power that is
contemplated by the “grant [of] an ‘extraordinary degree of control’ over the use of firearms” in
article I, section 22. [CITATION], ¶ 42 (quoting [CITATION]). To any extent [CITATION] might be read to hold the AHC statute is a proper exercise of the
state’s police power on violent felons, we disagree; and, regardless, the point of its holding is
that the police power “allows the state to exert, through legislation, control over the dangers
posed by firearms and the people who might use them to do harm.” [CITATION], ¶ 43. The legislature could prohibit felons from possessing firearms to safeguard the
welfare of the community. [CITATION], ¶ 30 (“nothing in article I, section
22, of the Illinois Constitution suggests that the right to bear arms is unlimited and bars the State
from prohibiting felons from bearing arms.”), see also [CITATION], ¶ 53 (“is a proper exercise of police power, and therefore defendant has not
shown that the statute violates the Illinois Constitution on its face or as applied to him.”).
¶ 99 The AHC statute is constitutional as applied to defendant and on its face under article I,
section 22, of the Illinois constitution.
¶ 100 CONCLUSION
¶ 101 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 102 Affirmed.
- 46 -
NOTICE
IL App (4th) 240315-U FILED
This Order was filed under September 3, 2024
Supreme Court Rule 23 and is NO. 4-24-0315 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Tazewell County
LUCAS S. THOMAS, ) No. 22CF538
Defendant-Appellant. )
) Honorable
) Christopher R. Doscotch,
) Judge Presiding.
PRESIDING JUSTICE CAVANAGH delivered the judgment of the court.
Justices Steigmann and Grischow concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding the Illinois armed habitual criminal statute
does not violate the United States Constitution.
¶2 In November 2023, defendant, Lucas S. Thomas, was sentenced to 19 years’
imprisonment following his guilty plea to being an armed habitual criminal (720 ILCS
5/24-1.7(a) (West 2022)). On appeal, defendant argues the armed habitual criminal statute
violates the second amendment (U.S. Const., amend. II) on its face pursuant to the United States
Supreme Court’s decision in [CITATION]. We affirm.
¶3 I. BACKGROUND
¶4 In October 2022, the State charged defendant by indictment with (1) being an
armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2022)) for possessing a firearm after having been convicted of residential burglary in Woodford County case No. 08-CF-82 and
unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333; (2) unlawful
possession of a weapon by a felon ([CITATION]) for possessing said firearm after having been
convicted in Peoria County case No. 11-CF-333; (3) aggravated domestic battery ([CITATION])
for intentionally strangling a family or household member; (4) aggravated battery ([CITATION])
for holding a gun, a deadly weapon, to the head of another and thereby making
contact of an insulting or provoking nature; (5) domestic battery ([CITATION]) for causing
[SEGMENT 28]
bodily harm by striking a family or household member; and (6) resisting a peace officer
([CITATION]) for refusing to place his hands behind his back, tensing up, and struggling with an
arresting officer, thereby causing the officer to be injured.
¶5 In July 2023, defendant entered into a partially negotiated plea agreement wherein
he pleaded guilty to the armed habitual criminal charge. In exchange, the State dismissed the
remaining charges, agreed not to file any uncharged pending cases against defendant, and agreed
not to refer any cases regarding defendant for federal prosecution. However, the State reserved
the right to utilize any uncharged conduct and the dismissed charges in aggravation at
sentencing. The State proffered a factual basis, citing defendant’s aforementioned felony
convictions from Woodford and Peoria counties. Following the issuance of a search warrant,
officers discovered a handgun in defendant’s bedroom. Additionally, a search of defendant’s
phone revealed a photograph of him holding said handgun. The trial court accepted defendant’s
plea as knowing and voluntary.
¶6 A sentencing hearing was held in November 2023. A presentence investigation
report (PSI) was admitted without objection. According to the PSI, defendant had been convicted
of residential burglary in 2008 and twice convicted of unlawful possession of a weapon by a
felon in 2011 and 2015, respectively.
¶7 The State introduced into evidence the video showing defendant’s arrest and the
recovery of the firearm and the testimony of detective Robert Vester of the East Peoria Police
Department. Vester testified, among other things, to discovering the firearm in defendant’s
bedroom, to investigating defendant for selling stolen all-terrain vehicles, and that, according to
defendant, he had purchased the firearm at issue in St. Louis, Missouri, for self-defense.
¶8 Defendant presented letters from family and friends in mitigation. A neighbor and
friend testified defendant was not a violent person and only obtained the firearm for self-defense.
¶9 Defendant gave a statement in allocution wherein he acknowledged his mistake in
purchasing the firearm. He argued a convicted felon should not lose his rights under the second
amendment and contended he never used or brandished the firearm but was the victim of two
other individuals threatening him with a firearm.
¶ 10 The trial court considered the PSI, evidence presented in aggravation and
mitigation, defendant’s statement in allocution, arguments from the parties, the statutory and
nonstatutory factors in aggravation and mitigation, the history and character of defendant, and
the seriousness of the offense in light of the objective of restoring defendant to useful citizenship.
The court noted the firearm had a “40-round extended clip” and a “green laser tag site,”—
characteristics typically not found on a weapon used merely for self-defense. Defendant
interjected that those items came with the weapon when he bought it. The court rebutted that
defendant, nonetheless, bought it that way. The court sentenced defendant to 19 years’
imprisonment. Defendant filed a motion to reconsider sentence, arguing the court failed to
consider certain statutory factors in mitigation and that his sentence was excessive. The court
denied the motion.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 Defendant claims the armed habitual criminal statute is unconstitutional on its
face as violative of the second amendment. See [CITATION], 2018 IL 121939, ¶ 49 (“Defendants
convicted under a facially unconstitutional statute may challenge the conviction at any time, even
after a guilty plea, because the state or government had no power to impose the conviction to
begin with.”). We disagree. The Criminal Code of 2012 (Code) (720 ILCS 5/1-1 et seq. (West
2022)) provides as follows:
“(a) A person commits the offense of being an armed habitual criminal if
he or she receives, sells, possess, or transfers any firearm after having been
convicted a total of 2 or more times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use
of a weapon; aggravated discharge of a firearm; vehicular hijacking;
aggravated vehicular hijacking; aggravated battery of a child as described
in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05; intimidation;
aggravated intimidation; gunrunning; home invasion; or aggravated
battery with a firearm as described in Section 12-4.2 or subdivision (e)(1),
(e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled substances Act or the
Cannabis Control Act that is punishable as a Class 3 felony or higher.”
ILCS 5/24-1.7 (West 2022).
¶ 14 Accordingly, defendant’s stipulated convictions of residential burglary (a forcible
felony pursuant to section 2-8 of the Code (id. § 2-8)) in Woodford County case No. 08-CF-82
and unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333 were
qualifying convictions under the armed habitual criminal statute.
¶ 15 Defendant relies on the United States Supreme Court’s decision in [CITATION]. In
[CITATION], the Supreme Court held, “When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that conduct,” and the government
“must then justify its regulation by demonstrating that [the regulation] is consistent with the
Nation’s historical tradition of firearm regulation.” [CITATION], 597 U.S. at 24 (2022).
¶ 16 In response to defendant’s facial challenge, the State cites numerous appellate
court decisions relevant to the issue on appeal: [CITATION],
¶¶ 37-39 (finding Bruen did not apply to the defendant’s as applied constitutional challenge
under the second amendment of the unlawful use of a weapon by a felon statute); [CITATION],
¶¶ 14-22 (finding the armed habitual criminal statute did not
violate the second amendment pursuant to Bruen); [CITATION],
¶¶ 19-29 (finding Bruen did not apply to the defendant’s as applied challenge to the unlawful
possession of a weapon by a felon statute); [CITATION],
¶¶ 143-158 (finding Bruen did not apply to the defendant’s as applied challenge to the unlawful
possession of a weapon by a felon statute); [CITATION],
¶¶ 51-60 (finding the armed habitual criminal statute did not violate the second amendment
pursuant to Bruen); [CITATION], ¶¶ 18-22 (finding the firearm
owner’s identification card requirement constitutional post-Bruen); [CITATION], ¶¶ 11-16 (finding Bruen did not apply to the defendant’s facial
constitutional challenge under the second amendment of the unlawful use of a weapon by a felon
statute).
¶ 17 Defendant counters that the cases cited by the State were wrongly decided and
notes the appellate court in [CITATION], and [CITATION], found the second amendment’s plain language presumptively
protected convicted felons. Furthermore, the cases cited by the State were all decided without the
benefit of the Supreme Court’s decision in [CITATION].
¶ 18 In [CITATION], the defendant was convicted of being an armed habitual criminal.
[CITATION], ¶ 1. On appeal, the defendant contended the armed habitual
criminal statute as applied to him “impermissibly criminalized his simple possession of a firearm
exclusively on the basis of his two prior nonviolent felony convictions.” Id. ¶ 55. Following the
framework from Bruen, the court in [CITATION] first considered whether the plain language of the
second amendment protected the defendant’s right to keep and bear arms. Id. ¶¶ 69, 79-87. The
[CITATION] court concluded the defendant had been convicted under the armed habitual criminal
statute for possessing a firearm after having been twice convicted of two nonviolent felonies. Id.
¶ 86. After observing the Supreme Court, in [CITATION], held “to keep arms” simply meant to “have weapons,” the [CITATION] court reasoned to
“have,” defined as “to be in possession of,” meant the second amendment’s plain language
presumptively protected the defendant’s conduct of possessing a firearm. (Internal quotation
marks omitted.) [CITATION]. The court then went on to determine
the armed habitual criminal statute was consistent with the nation’s tradition of firearm
regulation. [CITATION]
¶ 19 The court in [CITATION], adopted the reasoning in [CITATION] and found “the second
amendment’s plain language does not exclude felons.” [CITATION]. Similarly, the [CITATION] court also concluded the armed habitual criminal statute was consistent with
the nation’s tradition of firearm regulation. [CITATION]
¶ 20 In [CITATION], the defendant was charged with possessing a firearm while subject to a
domestic violence restraining order. [CITATION]. The court noted,
where “a restraining order contains a finding that an individual poses a credible threat to the
physical safety of an intimate partner, that individual may—consistent with the Second
Amendment—be banned from possessing firearms while the order is in effect.” [CITATION].
[SEGMENT 29]
Moreover, “our Nation’s firearm laws have included provisions preventing individuals who
threaten physical harm to others from misusing firearms.” [CITATION]. The court went on to clarify that
“the Second Amendment permits more than just those regulations identical to ones that could be
found in 1791.” [CITATION]. “A court must ascertain whether the new law is ‘relevantly
similar’ to laws that our tradition is understood to permit.” [CITATION]. The [CITATION] court rejected
the notion that the defendant could be disarmed “simply because he is not ‘responsible.’ ” [CITATION]. The court noted that the Heller and Bruen decisions had used the term “responsible” to
“describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right,”
but the term was never defined to reveal those who would be considered “not ‘responsible.’ ” [CITATION]
¶ 21 In essence, defendant asks that we, like the courts in [CITATION] and [CITATION], find his
mere possession of a firearm was presumptively protected by the second amendment. Then,
unlike in [CITATION] and Travis, but following guidance from Rahimi, he asks us to find the armed
habitual criminal statute is inconsistent with the nation’s tradition of firearm regulation, and,
thus, unconstitutional. For the reasons that follow, we are unpersuaded by defendant’s arguments
on appeal. See [CITATION]
App (1st) 162808, ¶ 44 (stating the “defendant, as the appellant, bears the burden of persuasion
as to [his] claim of error”).
¶ 22 This court, in [CITATION], 2023 IL App (4th) 221113-U, ¶ 12, stated:
“ ‘The constitutionality of a statute is analyzed under well-settled
principles. Statutes are presumed constitutional, and to rebut that presumption, the
party challenging a statute’s constitutionality has the burden of establishing a
clear violation. [Citation.] A party raising a facial challenge to a statute faces a
particularly heavy burden. [Citation.] A statute will be deemed facially
unconstitutional only if there is no set of circumstances under which the statute
would be valid. [Citation.] The particular facts related to the challenging party are
irrelevant. [Citation.] If it is reasonably possible to construe the statute in a way
that preserves its constitutionality, we must do so.’ ” (quoting [CITATION],
IL 125889, ¶ 10).
¶ 23 In [CITATION], we cited [CITATION], 2023 IL App (1st) 220328, ¶ 37, for the proposition that
“[t]he Bruen Court could not have been more clear that its newly announced test applied only to
laws that attempted to regulate the gun possession of law-abiding citizens, and not felons like
[the] defendant.” (Internal quotation marks omitted.) [CITATION], 2023 IL App (4th) 221113-U, ¶ 14.
Bruen specifically upheld an earlier statement from Heller that courts should not “ ‘cast doubt on
longstanding prohibitions on the possession of firearms by felons.’ ” Bruen, 597 U.S. at 81
(Kavanaugh, J., concurring, joined by Roberts, C.J.) (quoting Heller, [CITATION]). We find
nothing in defendant’s arguments that would persuade us to believe that previous decisions—
including our own—finding Bruen does not apply to felons were incorrect. As a convicted felon,
Bruen does not apply to defendant. See, e.g., [CITATION].
¶ 24 Additionally, Rahimi does not help defendant here because as the Supreme Court
explained, “Heller never established a categorical rule that the Constitution prohibits regulations
that forbid firearm possession in the home. In fact, our opinion stated that many such
prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are
‘presumptively lawful.’ ” Rahimi, [CITATION] (quoting Heller, [CITATION]). Thus, Rahimi does not support the proposition defendant propounds that he is
presumptively protected under the second amendment; to the contrary, the armed habitual
criminal statute prohibiting defendant, a convicted felon, from possessing a firearm is
presumptively lawful. Id. Accordingly, defendant has failed to show the armed habitual criminal
statue is facially unconstitutional.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the trial court’s judgment.
¶ 27 Affirmed.
2024 IL App (1st) 221921-U
Nos. 1-22-1921 & 1-23-0620 (consolidated)
THIRD DIVISION
August 14, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) Nos. 92 CR 19997, 95 CR
) 28637
JOSEPH LINZY, )
) Honorable
Defendant-Appellant. ) John F. Lyke, Jr. and
) Michael J. Kane,
) Judges, presiding.
JUSTICE D. B. WALKER delivered the judgment of the court.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s denial of defendant’s petitions.
¶2 Defendant Joseph Linzy 1 appeals the trial court’s denial of his petitions filed pursuant to
section 2-1401 of the Code of Civil Procedure (Code) 735 ILCS 5/2-1401 (West 2022).
1
Defendant’s name is listed as “Joseph Linzy” in case number 1-22-1921, and “Joe Linzy” in
case number 1-23-0620. Nos. 1-22-1921 & 1-23-0620 (consolidated)
Defendant’s petitions challenged his 1992 and 1995 convictions for unlawful use of a weapon by
a felon (UUWF) as unconstitutional under the Second Amendment. On appeal, defendant contends
that the trial court erred in denying his petitions because (1) the UUWF statute is unconstitutional
on its face where there is no founding-era evidence that supports a permanent revocation of the
right to keep and bear arms solely based on a person’s status, and (2) the statute is unconstitutional
as applied to him because the underlying felony he committed was a non-violent offense. For the
following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Defendant pleaded guilty to UUWF in case number 92 CR 19997 on November 5, 1992.
In that case, the State presented the following as the factual basis for defendant’s guilty plea. On
August 6, 1992, police officers went to defendant’s residence while investigating a fatal shooting.
There, they recovered a semiautomatic pistol under a mattress in a bedroom. Defendant told
officers that he had been drinking and shooting the night before. He was with a person named
“Tion,” and Tion left the gun with defendant for safekeeping. The parties stipulated that defendant
had received a three-year sentence in case number 90 CR 4379 for the manufacture and delivery
of a controlled substance, a felony. After accepting defendant’s plea, the trial court sentenced him
to two years’ imprisonment.
¶5 Defendant pleaded guilty to UUWF in case number 95 CR 28637 on January 4, 1996. The
factual basis for defendant’s plea indicated that police officers responded to a call about an armed
man. At the location, they encountered defendant who was standing with a firearm. He told officers
that he needed the weapon for protection. The State presented evidence that defendant had received
three years of probation for a 1990 felony offense, three years’ imprisonment in 1990 for the
manufacture and delivery of a controlled substance, six months of conditional discharge in 1992
Nos. 1-22-1921 & 1-23-0620 (consolidated)
for a misdemeanor conviction, and two years’ imprisonment for the 1992 UUWF conviction. After
accepting defendant’s plea, the trial court sentenced him to three years’ imprisonment.
¶6 After defendant pleaded guilty in the 1995 case, he was charged with the murder of Doris
Harris and concealment of a homicidal death. See [CITATION]. After a jury trial, he was convicted of both offenses and sentenced to concurrent
terms of 80 and 5 years in prison, respectively. Id. This court affirmed his convictions on direct
appeal. Id. ¶ 34.
¶7 On September 2, 2022, defendant filed a section 2-1401 petition seeking relief from
judgment in his 1995 UUWF case. In his petition, he alleged that, pursuant to [CITATION],
both his 1992 and 1995 UUWF convictions were unconstitutional and should be
[SEGMENT 30]
vacated. On September 12, 2022, while this petition was pending, defendant filed another section
2-1401 petition which sought relief from his UUWF conviction in the 1992 case. The second
petition raised the same claim that the UUWF statute was unconstitutional under [CITATION].
¶8 On November 1, 2022, the trial court dismissed the second petition. The court found that
[CITATION] did not apply, and therefore defendant’s 1992 conviction was constitutional. The court
stated that it did not have jurisdiction to consider defendant’s claim regarding his 1995 UUWF
conviction because “section 2-1401 petitions must be filed in the same proceeding [in which] that
judgment was entered.” Defendant appealed the dismissal of his second petition.
¶9 Following the dismissal of defendant’s petition in the 1992 case, the State filed a motion
to dismiss his petition in the 1995 case. The State argued that the petition should be dismissed
because 1) the trial court had already determined that defendant’s UUWF conviction was
constitutional, and 2) the petition was untimely. On February 24, 2023, the trial court dismissed
Nos. 1-22-1921 & 1-23-0620 (consolidated)
the petition and defendant appealed. Defendant’s appeals in the 1992 and 1995 UUWF cases were
consolidated into the instant appeal.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant contends that the trial court erred in dismissing his section 2-1401
petitions. Section 2-1401 establishes a comprehensive, statutory procedure that allows for the
vacatur of a final judgment more than 30 days after its entry. See 735 ILCS 5/2-1401 (West 2022).
Section 2-1401 provides a civil remedy that extends to criminal cases as well as to civil cases.
[CITATION]. A 2-1401 petition may be dismissed if, taking its
allegations as true, it does not state a meritorious defense. [CITATION].
“Like a complaint, the petition may be challenged by a motion to dismiss for its failure to state a
cause of action or if, on its face, it shows that the petitioner is not entitled to relief.” [CITATION]. The trial court’s dismissal of a section 2-1401
petition is reviewed de novo. [CITATION].
¶ 12 A section 2-1401 petition must be filed no later than two years after entry of the final order
or judgment. 735 ILCS 5/2-1401(c) (West 2022). Our supreme court, however, recognized an
exception to the two-year limitations period if the petition alleged a void judgment. [CITATION]. A void judgment may be challenged at any time, and such a
challenge is not subject to forfeiture or other procedural restraints. [CITATION]. Relevant here, a judgment is deemed void ab initio when it is based on a statute that
is facially unconstitutional. Id. “When a statute is declared facially unconstitutional and void ab
initio, it means that the statute was constitutionally infirm from the moment of its enactment and,
therefore, unenforceable.” [CITATION].
Nos. 1-22-1921 & 1-23-0620 (consolidated)
¶ 13 Here, the State argues that defendant’s petitions were properly dismissed because they were
filed approximately 30 years after his convictions in the 1992 and 1995 cases. Defendant, however,
argues that his convictions were based on the UUWF statute, which he alleges is unconstitutional
on its face following the United States Supreme Court’s ruling in [CITATION]. A statute is void ab initio under a new constitutional
rule if the new rule renders the statute facially unconstitutional. [CITATION]. Void judgments may be challenged on collateral review for the first time on appeal.
[CITATION]
¶ 14 Moreover, defendant’s claim challenges his conviction under what he alleges is a facially
unconstitutional statute. His claim does not contradict the terms of his guilty plea. As such, his
guilty plea does not serve as a bar to this appeal. [CITATION]. Accordingly, we will consider defendant’s claims.
¶ 15 Defendant contends that the UUWF statute is unconstitutional on its face where there is no
founding-era evidence supporting a permanent revocation of the right to keep and bear arms based
solely on a person’s status. Rather, defendant argues, such evidence supports only bans based on
a person’s actual dangerousness or violent criminal history. Furthermore, these bans did not apply
to all firearms at all times and could be removed if a person meets objective criteria. Defendant
also argues that the UUWF statute is unconstitutional as applied to him, where the underlying
felony for his UUWF conviction was a non-violent offense. Since there was no evidence at the
time supporting his actual dangerousness, there was no historical basis for prohibiting his
possession of a firearm.
¶ 16 Since the Supreme Court’s decision in [CITATION], there have been numerous challenges to the
constitutionality of both federal and state statutes prohibiting felons from possessing firearms. See
Nos. 1-22-1921 & 1-23-0620 (consolidated)
[CITATION] (noting the “flurry of filings across the country”
challenging the federal statute); [CITATION] (noting that
“various jurisdictions have grappled with this issue”). However, there is a consensus among federal
and state courts that such statutes are constitutional after Bruen. See [CITATION]
(finding that “the overwhelming majority of courts that have considered the issue” have concluded
that the federal statute remains constitutional); [CITATION] (finding
that the “vast majority” of courts have determined that statutes prohibiting nonviolent felons from
possessing weapons are constitutional under Bruen).
¶ 17 In [CITATION], the defendant was convicted of being an armed habitual criminal under section
24-1.7 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-1.7 (West 2016)). Id. ¶ 1.
The defendant was charged with the offense based on his knowing and intentional possession of a
firearm after having been previously convicted of two qualifying felonies. Id. ¶ 3. His prior felony
convictions included one for the manufacture or delivery of narcotics, and one for unlawful
possession of a weapon by a felon. Id.
¶ 18 The defendant argued, for the first time on appeal, that under the new test established in
Bruen, the armed habitual criminal statute violated the Second Amendment as applied to him.
Id. ¶ 55. Although the State argued that the defendant forfeited the issue, the reviewing court
considered the defendant’s claim where the record below was sufficiently developed. ¶¶ 56, 60.
¶ 19 The court acknowledged that Bruen “announced a new analytical framework for evaluating
the constitutionality of firearm regulations.” Id. ¶ 68. In Bruen, the Supreme Court held that “the
standard for applying the Second Amendment is as follows: When the Second Amendment’s plain
text covers an individual’s conduct, the Constitution presumptively protects that conduct. The
government must then justify its regulation by demonstrating that it is consistent with the Nation’s
Nos. 1-22-1921 & 1-23-0620 (consolidated)
historical tradition of firearm regulation.” [CITATION]. To meet this burden, the
government must identify “historical precedent from before, during and even after the founding”
that shows “a comparable tradition of regulation.” [CITATION].
¶ 20 The court in [CITATION] first considered whether the plain text of the Second Amendment
covered the defendant’s conduct. It noted that the defendant committed the armed habitual criminal
offense by possessing a firearm after having been convicted of two qualifying offenses. [CITATION].
Since the plain language of the Second Amendment protects a
person’s right to keep and bear arms, the court found that the defendant’s possession of a firearm
was “ ‘presumptively constitutional.’ ” [CITATION]. The court noted
that at this stage of the analysis, the defendant’s status as a felon was “irrelevant.” [CITATION].
¶ 21 Instead, courts should consider the defendant’s felon status when analyzing “the nation’s
historical tradition of firearm regulation.” [CITATION]. Upon a thorough review of the historical
restrictions for possession of firearms, the [CITATION] court concluded that “such categorical
restrictions [were] inextricably linked to the notion of ‘law abiding citizens.’ ” [CITATION].
¶ 22 The court noted that “[r]estrictions on the possession of firearms date back to England in
the 1600’s when the government repeatedly disarmed individuals whose conduct reflected that
they could not be trusted to abide by ‘the sovereign and [his] dictates.’ ” [CITATION]. In Colonial America,
legislatures disarmed categories of individuals who were not trusted to obey the law, including
Native Americans and Catholics. [CITATION].
¶ 23 Furthermore, punishments imposed in the Colonial period showed “the widespread
acceptance of the legislatures’ authority to disarm felons” for certain nonviolent crimes. [CITATION].
Specifically, legislatures “prescribed death or forfeiture of a person’s entire estate (presumably
[SEGMENT 31]
Nos. 1-22-1921 & 1-23-0620 (consolidated)
including firearms) as punishment” for nonviolent crimes such as deceit, forgery, and the wrongful
taking of property. [CITATION]
¶ 24 Additionally, legislatures disarmed certain groups not because they were viewed as
dangerous or violent, but because they were “presumed unwilling to obey the law.” [CITATION] Felons
were understood as one such group. [CITATION] Citing to scholarship on the Second Amendment, the
Brooks court found that the “majority of legal historians” agreed that the right to bear arms “turn[s]
on one’s law-abiding character.” [CITATION] The court found no historical requirement that an
individual be deemed dangerous before prohibiting him or her from possessing a firearm. [CITATION]
¶ 25 The court held that the armed habitual criminal statute, which prohibits the possession of
firearms by convicted felons, was “consistent with the national historical tradition of firearm
regulation.” [CITATION] Therefore, the statute was constitutional as applied to the defendant. [CITATION]
¶ 26 We agree with the reasoning in [CITATION]. Although [CITATION] addressed the constitutionality
of the armed habitual criminal statute, and the provision challenged here is the UUWF statute, the
question of whether the Second Amendment allows legislatures to categorically ban non-violent
convicted felons from possessing firearms is the same one defendant raises in this case.
¶ 27 Defendant argues, however, that we should not follow [CITATION] because that case cited laws
that disarmed politically unpopular groups, including religious, racial, and political minorities, and
thus should not be considered. He also contends that those historic laws sought to prevent
insurrection, rebellion, resistance to westward expansion, or “pernicious animus,” a purpose unlike
that of the UUWF statute.
¶ 28 We find [CITATION], a recent Northern District of Illinois case, persuasive on these points. In
[CITATION], the defendant challenged the analogous federal statute prohibiting felons from
possessing firearms, 18 U.S.C.A. § 922(g)(1). [CITATION] The court joined the
Nos. 1-22-1921 & 1-23-0620 (consolidated)
majority of courts in the district finding that § 922(g)(1) was constitutional on its face under
[CITATION].
¶ 29 The court acknowledged that historic laws disarming categories of people were enacted to
prevent sedition and insurrection, but disagreed with the defendant that they were thus improper
analogues to § 922(g)(1), which imposed “a blanket—and permanent—ban on people who have
been convicted of a felony.” [CITATION]. The court reiterated that [CITATION] “ ‘requires only that the
government identify a well-established and representative historical analogue, not a historical
twin.’ ” (Emphasis in the original.) [CITATION]. Historical regulations
included “extensive and exhaustive penalties for felonies [including] outright capital punishment
and the forfeiture of all property***.” [CITATION].
¶ 30 The court further found that the respective laws placed a comparable burden upon the right
to bear arms. [CITATION]. History indicated that certain offenders could obtain permission to possess
firearms. [CITATION]. For example, Catholics were allowed to retain their arms if they swore an oath of
allegiance. [CITATION]. Likewise, a convicted felon may regain his or her right to possess a firearm through
expungement of his conviction or pardon. [CITATION].
¶ 31 The court also found no historical basis for the individualized assessment of dangerousness
before prohibiting a felon from possessing a firearm. [CITATION]. Instead, historical analogues
supported “ ‘legislative authority to disarm persons convicted of felonies, regardless of whether
the conviction involved a use (or attempted use) of force.’ ” [CITATION]. The district court therefore found § 922(g)(1) constitutional as
applied to the defendant. [CITATION].
¶ 32 Here, defendant cites [CITATION], in which the federal court held, contrary to the [CITATION] court,
that § 922(g)(1) was unconstitutional as applied to a defendant who committed a nonviolent felony.
Nos. 1-22-1921 & 1-23-0620 (consolidated)
We note that the judgment in Range has been vacated and the case “remanded to the United States
Court of Appeals for the Third Circuit for further consideration in light of United States v. Rahimi,
602 U.S. __ (2024).” [CITATION]
Nonetheless, we choose to follow the “vast majority” of courts finding that statutes prohibiting
nonviolent felons from possessing firearms are constitutional under Bruen. [CITATION], ¶ 79; see also [CITATION], *6 (disagreeing with cases finding such
statutes unconstitutional and instead joining “the majority of courts in this District and across the
nation” finding otherwise).
¶ 33 In summary, legislatures have historically banned categories of individuals, particularly
felons, from possessing firearms based on a presumption of untrustworthiness or risk of danger.
Moreover, prohibiting felons from possessing firearms is a comparable burden to punishments
historically imposed upon those committing felonies. As was the case for certain groups
dispossessed of firearms in the past, felons retain an opportunity to possess firearms under the
UUWF statute. A convicted felon may possess a firearm if he or she “has been granted relief by
the Director of the Illinois State Police under Section 10 of the Firearm Owners Identification Card
Act.” See 720 ILCS 5/24-1.1(a) (West 2022). Finally, courts have found no historical requirement
that an individualized assessment of a felon’s dangerousness be made before prohibiting him or
her from possessing a firearm. For the reasons set forth in [CITATION] and [CITATION], we find that the
UUWF statute is constitutional on its face and as applied to defendant in this case.
¶ 34 III. CONCLUSION
¶ 35 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 36 Affirmed.
- 10 -
2024 IL App (1st) 231051-U
No. 1-23-1051
Order filed August 12, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 17 CR 1246
)
ARTEZ McNEAL, ) Honorable
) Ursula Walowski,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of defendant’s postconviction petition is affirmed
where defendant has abandoned the claim of ineffective assistance of counsel which
was raised in his petition and his claim on appeal that the armed habitual criminal
statute is facially unconstitutional under the second amendment is without merit.
¶2 Defendant Artez McNeal appeals from an order of the circuit court of Cook County
granting the State’s motion to dismiss his petition for relief filed under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). On appeal, defendant has abandoned No. 1-23-1051
the claim of ineffective assistance of counsel which was raised in his postconviction petition and,
instead, solely contends that the armed habitual criminal statute under which he was convicted
(720 ILCS 5/24-1.7 (West 2016)) is facially unconstitutional under the second amendment of the
United States Constitution (U.S. Const., amend. II). For the following reasons, we affirm.
¶3 Following a 2017 jury trial, defendant was convicted of being an armed habitual criminal
(AHC) and sentenced to a term of 10 years’ imprisonment. The two predicate felony convictions
underlying the AHC conviction were defendant’s 2009 conviction for aggravated vehicular
hijacking and his 2013 conviction for manufacture or delivery of a controlled substance. On direct
appeal, this court affirmed defendant’s conviction. [CITATION].
¶4 On December 7, 2020, defendant filed a pro se postconviction petition under the Act
raising a single claim of ineffective assistance of trial counsel for failing to investigate and call a
particular witness at trial who may have provided exonerating testimony. Defendant attached to
his petition an affidavit from that witness averring that she never gave a written or verbal statement
against defendant and that counsel never contacted her to confirm or deny if she made a statement.
The circuit court appointed counsel to represent defendant and advanced his petition to the second
stage of proceedings under the Act.
¶5 On March 16, 2023, the State moved to dismiss defendant’s postconviction petition arguing
[SEGMENT 32]
that counsel’s decision regarding which witnesses to call at trial was a matter of trial strategy that
was entitled to deference and generally immune from claims of ineffective assistance. The State
pointed out that there was no evidence that the proposed witness ever provided a statement against
defendant, and no written or verbal statement from her had been introduced at trial. Consequently,
No. 1-23-1051
the proposed witness’s testimony would not have changed the outcome of trial and defendant had
not been prejudiced by counsel’s decision not to call her.
¶6 Following a hearing on May 31, 2023, the circuit court granted the State’s motion and
dismissed defendant’s postconviction petition.
¶7 On appeal, defendant has abandoned his claim of ineffective assistance of trial counsel
raised in his postconviction petition. Instead, for the first time on appeal, he solely contends that,
in light of the United States Supreme Court’s decision in [CITATION], the AHC statute under which he was convicted is facially
unconstitutional under the second amendment of the United States Constitution (U.S. Const.,
amend II).
¶8 Generally, a claim not raised in a postconviction petition cannot be raised for the first time
on appeal from the dismissal of that petition. [CITATION]. However, a challenge to a statute as facially unconstitutional is exempt from forfeiture and may
be raised at any time. [CITATION]. Here, the parties agree, and we
concur, that the record on appeal is sufficiently developed to allow this court to address defendant’s
constitutional challenge. See id. Whether the AHC statute is constitutional is a question of
law which we review de novo. [CITATION].
¶9 The AHC statute provides:
“(a) A person commits the offense of being an armed habitual criminal if he or she
receives, sells, possesses, or transfers any firearm after having been convicted a total of 2
or more times of any combination of the following offenses:
No. 1-23-1051
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a
weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated
vehicular hijacking; aggravated battery of a child as described in Section 12-4.3 or
subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation;
gunrunning; home invasion; or aggravated battery with a firearm as described in
Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled Substances Act or the Cannabis
Control Act that is punishable as a Class 3 felony or higher.
(b) Sentence. Being an armed habitual criminal is a Class X felony.” 720 ILCS
/24-1.7 (West 2016).
¶ 10 Defendant argues that the AHC statute is unconstitutional under the second amendment on
its face. A facial challenge is “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional. [CITATION], ¶ 10. To rebut that
presumption and establish that a statute is facially unconstitutional, the party challenging the
constitutionality must demonstrate that there are no circumstances under which the statute would
be valid. Id. “If it is reasonably possible to construe the statute in a way that preserves its
constitutionality, we must do so.” Id.
¶ 11 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION],
Heller, in which it stated that the second amendment elevated “the right of law-abiding,
No. 1-23-1051
responsible citizens to use arms in defense of hearth and home.” [CITATION]. In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION]. The Court
reiterated that its decision in [CITATION] “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” Id. at 786 (quoting [CITATION]).
¶ 12 Following [CITATION] and [CITATION], courts developed a two-step analysis for evaluating
second amendment challenges to firearm regulations. See [CITATION], ¶ 11.
First, the courts considered whether the regulated activity fell within the scope of the second
amendment as it was originally understood. Id. If the government did not establish that the
regulated activity was outside the scope of the second amendment, the courts proceeded to the
second step and conducted a “means-end analysis.” (Internal quotation marks omitted.) Id. During
that step of the analysis, the courts weighed the severity of the regulation against the ends which
the government sought to achieve in enacting the regulation. Id.
¶ 13 However, in 2022 the Supreme Court issued [CITATION], in which it adopted a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]). The Court condemned the means-end analysis. Id. (citing [CITATION]).
Rather, under [CITATION], where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate that the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
No. 1-23-1051
second amendment to mean. [CITATION], ¶ 70 (citing Bruen, 597
U.S. at 27, 34-35).
¶ 14 Initially, the State responds that in this case we need not reach the analytical framework
that Bruen provided. The State notes that Bruen concerned a portion of a New York statute that
only issued licenses to carry a firearm outside one’s home or place of business to those who showed
that “proper cause” existed. [CITATION]. The Court differentiated New York’s “may-
issue” licensing regime from the majority of states that have “shall-issue” licensing regimes, where
the states issue a license whenever an applicant meets certain, objective requirements. Id. at 38
n.9. Bruen expressly stated that nothing in its decision “should be interpreted to suggest the
unconstitutionality” of any “shall-issue” licensing regime. Id.
¶ 15 Following Bruen, in [CITATION], this court rejected the defendant’s argument that the
aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a) (West 2020)) was facially
unconstitutional because it criminalized possessing a firearm if the possessor was not in
compliance with the Firearm Owners Identification (FOID) Card Act (430 ILCS 65/1 et seq. (West
2020)) or the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2020)) (Acts). [CITATION],
¶¶ 7, 19, 29-30. We found in [CITATION] that those Acts were “shall-issue”
licensing programs of the type that Bruen had approved, and, therefore, the aggravated unlawful
use of a weapon statute was not unconstitutional for criminalizing the possession of a firearm by
a person who was not in compliance with those Acts. Id. ¶¶ 14-30.
¶ 16 The State notes that those Acts prohibit convicted felons from obtaining a FOID card or
CCL. 430 ILCS 65/8(c) (West Supp. 2021); 430 ILCS 66/25(2) (West 2022). The State asserts that
we may therefore reject defendant’s facial challenge to the AHC statute without reaching any of
No. 1-23-1051
the analytical steps provided by Bruen because, like those Acts, the AHC statute prohibits felons
from carrying firearms. We are not convinced that [CITATION] and Bruen’s discussion of licensing
schemes should control here. See [CITATION] (rejecting the
State’s request to find Bruen inapplicable to the AHC statute based on Bruen’s endorsement of
shall-issue licensing regimes). In any case, the outcome of this appeal would not differ, as the AHC
statute is constitutional under Bruen’s analytical framework.
¶ 17 Thus, we turn to the analysis provided by Bruen. Again, the first question under Bruen is
whether the second amendment’s plain text covers the conduct at issue. [CITATION] If
it does, the second question is whether the State has demonstrated that the regulation comports
with our national historical tradition of firearm regulation. Id.
¶ 18 Here, defendant claims that the conduct prohibited by the AHC statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
[SEGMENT 33]
protected. We disagree. In [CITATION], the Supreme Court reiterated that the second amendment does
not grant an unrestricted right to carry firearms by all people at all times. Rather, it explained that:
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [CITATION] Those restrictions, for example, limited the intent for which one could
carry arms, the manner by which one carried arms, or the exceptional circumstances under
which one could not carry arms, such as before justices of the peace and other government
officials.” Id.
¶ 19 In [CITATION], and Bruen, the Supreme Court expressly stated that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] (agreeing
No. 1-23-1051
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also Heller, [CITATION] (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); McDonald, [CITATION]
(reiterating that Heller “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
¶ 20 On that basis, this court recently rejected a substantially similar facial constitutional
challenge to the AHC statute that defendant presents here, concluding that Bruen did not apply to
laws that attempted to regulate firearm possession by felons. See [CITATION]. In [CITATION], we found it significant that the majority opinion in Bruen repeated
the phrase “law-abiding” no fewer than 13 times. We further found that Bruen did not indicate any
intent to expand the second amendment’s protection to citizens who are not “law-abiding.” Id.
Moreover, we noted that the explicit holding in Bruen was that the New York statute violated the
fourteenth amendment because it prevented “ ‘law-abiding citizens with ordinary self-defense
needs from exercising their right to keep and bear arms.’ ” Id. (quoting Bruen, [CITATION]). We
stated, “[w]e presume that the Supreme Court’s inclusion of ‘law-abiding’ in the holding is not
superfluous or irrelevant, especially given the Court’s repeated use of the phrase throughout the
Bruen opinion, as well as its prior decisions.” Id.
¶ 21 Therefore, in light of our holding that the AHC statute was facially constitutional in [CITATION],
defendant’s facial challenge to that statute in this case must fail. See [CITATION],
¶ 10 (“A statute will be deemed facially unconstitutional only if there is no set of circumstances
under which the statute would be valid.”).
No. 1-23-1051
¶ 22 Defendant points out that in Brooks, this court found that the defendant’s felon status was
“irrelevant” during the first step of its Bruen analysis and that the effect of the defendant’s prior
felony conviction on his second amendment right to possess a firearm was more appropriately
evaluated under the second step’s historical tradition analysis. [CITATION], ¶ 89. In Brooks, the defendant claimed that the AHC statute was unconstitutional “as applied to
him.” Id. ¶ 1. It is well-settled that facial and as-applied constitutional challenges are not
interchangeable. [CITATION], ¶ 36. “An as-applied challenge requires a showing
that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” Id. Here, defendant raised only a facial challenge, which we determined above
is without merit.
¶ 23 Nevertheless, although we find it unnecessary to engage in a fulsome historical analysis, if
we were to do so, defendant’s facial challenge would still fail. Under the second step of the Bruen
analysis, [CITATION] found ample historical support for the legislature’s ability to prohibit possession
of firearms by twice-convicted felons. [CITATION], ¶¶ 90-105. The
historical analogues included “widespread acceptance of the legislatures’ authority to disarm
felons” during the founders’ era. Id. ¶ 96. [CITATION] recognized a “historical tradition of legislatures
exercising their discretion to impose status-based restrictions disarming entire categories of
persons” and that “the founders understood that felons were one such group.” (Internal quotation
marks and citations omitted.) Id. ¶ 97.
¶ 24 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
was wrongly decided. We decline to revisit [CITATION] here. Rather, we will follow [CITATION] and reject
defendant’s facial challenge to the AHC statute under the second amendment. As defendant has
No. 1-23-1051
not shown that the AHC statute is unconstitutional, we affirm the circuit court’s dismissal of his
postconviction petition.
¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 26 Affirmed.
- 10 -
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
2024 IL App (1st) 230571-U
No. 1-23-0571
Order filed October 4, 2024
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 9331
)
JVARUS MCKNIGHT ) The Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Presiding Justice Tailor and Justice Gamrath concurred in the judgment.
ORDER
¶1 Held: Affirmed, where State proved defendant possessed a firearm and statute barring
felons from possessing firearms is constitutional.
¶2 A driver with a prior felony might worry about police officers finding a firearm in the car.
Jvarus McKnight, who had a felony conviction, sped off when asked to get out of the car during a
traffic stop, crashing a few blocks away. Officers found a loaded gun in the glove compartment.
¶3 McKnight argues that (i) the State failed to prove that he possessed the gun and (ii) the
statute barring people with felonies from possessing firearms is unconstitutional. Neither of
McKnight’s attacks on his conviction succeed. We disagree and affirm. No. 1-23-0571
¶4 McKnight’s flight, prior felony, and control over the car all contribute to the inference that
he knew about the gun. Furthermore, the statute defining his criminal offense ([CITATION])
violates neither the United States nor the Illinois constitutions.
¶5 Background
¶6 After a bench trial, the court found Jvarus McKnight guilty of unlawful use or possession
of a weapon by a felon ([CITATION]).
¶7 Officer Brian Hima testified that while on patrol with two others, he saw a grey BMW, a
car he was on alert for, with an object hanging from its rearview mirror. He activated the siren and
lights before stopping that car. Hima approached the driver’s side and spoke with the lone
occupant, McKnight, for less than a minute before McKnight suddenly sped off.
¶8 After hearing that a car had crashed blocks away, Hima and his partners drove there. He
saw McKnight in the driver’s seat. Several damaged cars were nearby. Officers arrested McKnight
and searched the car. Hima opened the glove compartment and found a loaded gun.
¶9 Body-worn cameras captured the traffic stop and the scene after the crash. Clips of that
footage showed: (i) McKnight begins, then stops, unbuckling his seatbelt before driving off as
officers stand alongside the car, (ii) damaged cars at the crash site, and (iii) Hima finding a gun in
the glove compartment. The parties stipulated that McKnight had a prior felony.
¶ 10 The trial court found McKnight guilty. It later denied McKnight’s attack on the sufficiency
of the State’s proof, emphasizing McKnight “took off at a high rate of speed,” “got in an accident,”
and thus showed “extreme evidence of consciousness of guilt[.]”
¶ 11 Analysis
No. 1-23-0571
¶ 12 McKnight contends (i) the State failed to prove beyond a reasonable doubt that he
possessed the loaded gun and (ii) the statute barring felons from possessing firearms (720 ILCS
5/24-1.1(a) (West 2020)) is unconstitutional under our federal and state constitutions. We disagree.
¶ 13 Sufficiency
¶ 14 We assess the proof in the light most favorable to the State and ask if a rational trier of fact
could have found the elements beyond a reasonable doubt. [CITATION]. Possession is the pertinent element. 720 ILCS 5/24-1.1(a) (West 2020) (defining
possession as element of unlawful use or possession of weapons by felons). Possession can be
actual or constructive. See [CITATION] (noting pertinent statute prohibits
possession “on” and “about” a person). Because McKnight was not holding the gun, he did not
actually possess it. E.g., [CITATION] (State proved actual
possession by presenting officer testimony about seeing defendant toss gun).
¶ 15 The State proves constructive possession by establishing defendant (i) knew the gun was
present and (ii) had immediate and exclusive control over the area. [CITATION].
McKnight disputes both parts.
¶ 16 Control
¶ 17 Officers pulled McKnight over and, moments after the crash, again saw him sitting in the
car. McKnight was the driver; no one else was present, so the trier of fact could have found that
McKnight had immediate and exclusive control over the glove compartment. [CITATION]
(“control of the vehicle rather than ownership of the vehicle which
is pertinent to proof of control of the area”).
No. 1-23-0571
¶ 18 McKnight does not dispute that, as the lone occupant, he drove and crashed the car. Instead,
he insists the State needed to present proof that he (i) owned the car or (ii) had “other possessions”
in it. The case he cites in support, however, demands nothing of the sort. In [CITATION], officers had not seen the defendant inside the car but had found his
possessions in it and knew the defendant was the registered owner. [CITATION], ¶¶ 4, 31, 42. Here, however, officer testimony and body cam footage proved McKnight’s
control. “[D]irect evidence of a defendant driving a vehicle is * * * sufficient evidence of control.”
Id. ¶ 42 (noting “issue of control is noncontroversial in the great majority of cases where a
defendant is stopped while actually driving a vehicle”).
¶ 19 Knowledge
¶ 20 McKnight contends his presence in the car was not proof he knew the loaded handgun was
in the glove compartment. He asserts that no evidence showed he (i) could see the gun from where
he sat, (ii) attempted to retrieve or conceal the gun, or (iii) owned the car or often used it. In
McKnight’s view, the absence of this evidence shows he did not know about the gun, rendering
evidence of his flight “meaningless.”
¶ 21 We disagree. When analyzing the State’s proof, “we review all the evidence, not some.”
[CITATION], ¶ 40 (citing Collins, 106 Ill. 2d at 261). McKnight
errs by excluding evidence of his flight, overlooking the relevance of his prior felony, and
minimizing his control over the car as its lone occupant.
¶ 22 Officers observed McKnight commit a traffic violation, speed away from the traffic stop
when asked to get out of the car, and later exit within arm’s reach of a loaded gun at the crash site.
These facts, together with McKnight’s felony conviction, allowed the trial court to infer McKnight
====== End of Document ====== No. 1-23-0571
knew about the firearm’s presence. See [CITATION]
(“rational” inference defendant with prior felony was “armed” where his hands were near his waist
while fleeing on foot and gun was within arm’s reach at arrest).
¶ 23 To be sure, the trial court could not infer McKnight knew about the gun just because he
was in the car when stopped for a traffic violation. E.g., [CITATION]
¶¶ 36-47 (holding State failed to prove defendant knew firearm was present and embedded within
structure of driver’s seat). Rather, McKnight’s actions during the stop—speeding away rather than
getting out as the officers apparently directed—suggest a guilty conscience. Id. ¶ 44 (defendant
“did and said nothing during the encounter that would cause the officers to conjecture that he knew
about the handgun”); [CITATION]. And his felony, one that
barred him from possessing firearms (720 ILCS 5/24-1.1(a) (West 2020)), offered a basis for
inferring discovering the gun inspired his bolting from the stop.
¶ 24 The record does not reveal what the trial court meant when describing McKnight’s flight
as “extreme evidence.” We hold only that a factfinder could have found the elements of
constructive possession beyond a reasonable doubt. See [CITATION] (stating
standard). We affirm McKnight’s conviction for violating section 24-1.1(a).
¶ 25 Facial Challenge
¶ 26 McKnight also argues section 24-1.1(a) violates both the second amendment of the federal
constitution and article I, section 22 of the Illinois constitution. He raises a facial challenge, the
“ ‘most difficult challenge to mount successfully, ’ ” because it requires “ ‘establish[ing] that no
set of circumstances exists under which [section 24-1.1(a)] would be valid.’ ” See [CITATION]
[SEGMENT 2]
No. 1-23-0571
Rahimi, --- U.S. ----, 144 S. Ct. 1889, 1898 (2024) (quoting [CITATION]); see also [CITATION].
¶ 27 Two laws primarily drive McKnight’s challenge under both constitutions. The second
amendment provides: “A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. Section
24-1.1(a) provides: “It is unlawful for a person to knowingly possess on or about his person * * *
any firearm or any firearm ammunition if the person has been convicted of a felony[.]” 720 ILCS
5/24-1.1(a) (West 2020). We review McKnight’s challenge de novo ([CITATION]) and hold it fails.
¶ 28 Federal Constitution
¶ 29 McKnight contends that a law like section 24-1.1(a) “would have been unknown to those
who ratified the [c]constitution” and thus violates the second amendment. He notes the State has
the burden to justify section 24-1.1(a). But, because he attacks the law before this court for the
first time ([CITATION]), he proceeds in two steps. See [CITATION], v. [CITATION] (holding second amendment protects right
to public carry and clarifying analytical framework courts must apply).
¶ 30 First, McKnight contends “all Americans,” even those with prior felony convictions, “fall
within the [s]econd [a]mendment’s protections” for “the people.” Next, he contends no “true
historical analogue” to section 24-1.1(a) exists because historical bans focused on “actual
dangerousness, not status or criminal history.” In his view, “shall not be infringed” means no law
can now ban McKnight from firearm possession.
¶ 31 Applicability of Second Amendment
====== End of Part ====== No. 1-23-0571
¶ 32 The first step under Bruen asks whether the second amendment’s plain language covers
McKnight’s conduct. Bruen, 597 U.S. at 18. McKnight contends his conduct, possessing a firearm,
“presumptively” falls within the second amendment’s sweep. [CITATION], ¶ 87, pet. for leave to appeal, No. 130153 (filed Oct. 30, 2023) (holding second
amendment’s “keep and bear arms” language encompasses possession); but see [CITATION],
¶ 26 (discussing split in authority on this issue); [CITATION] (same). We assume without deciding that the
second amendment’s protection of “the people” includes McKnight.
¶ 33 History and Tradition
¶ 34 The second step asks whether section 24-1.1(a) is rooted in this nation’s history and
tradition of firearms regulation. Bruen, 597 U.S. at 33-34. McKnight contends no “true historical
analogue” to section 24-1.1(a) exists because historical bans focused on “actual dangerousness,
not status or criminal history.” We disagree.
¶ 35 Any search for a true historical analogue, as McKnight understands it, misplaces the
Supreme Court’s focus. See Rahimi, 144 S. Ct. at 1898; see also id. at 1925 (Barrett, J., concurring)
(“historical regulations reveal a principle, not a mold”). Instead, we ask whether section 24-1.1(a)
aligns with the “principles that underpin our regulatory tradition.” Id. at 1898.
¶ 36 Reasoning by analogy, as Bruen instructs, section 24-1.1(a) finds historical analogues in
laws pre-dating our country’s founding. Early English kings, Parliament, North American
colonists, and American founders all “believed that certain classes of people posed a great risk of
violence[:] Thus, until those individuals could show they did not pose such a risk, they could be
forbidden from owning firearms.” [CITATION]; see also [CITATION],
No. 1-23-0571
230113, ¶ 31 (noting “concept of disarming criminals dates at least to Pennsylvania's ratifying
convention”).
¶ 37 Governments then and now have presumptively disarmed entire groups. [CITATION]. Section 24-1.1(a) presumptively disarms people with felony convictions but does
not violate the second amendment. Rather, section 24-1.1(a) controls the dangers posed by
firearms and those who might use them to harm. See [CITATION].
Contrary to McKnight’s contention, historical analogues to section 24-1.1(a) would have been
known to our founders: Section 24-1.1(a) does not violate the second amendment.
¶ 38 Illinois Constitution
¶ 39 McKnight concedes his “substantive analysis” under the federal and state constitutions is
“the same.” Thus, his contention under article I, section 22 of the Illinois constitution fails for
similar reasons. See [CITATION] (holding defendant “failed to demonstrate the challenged statutes
violate the Illinois Constitution either facially or as applied to him”).
¶ 40 Additionally, because we have assumed “the people” under the second amendment
includes McKnight, we need not address his claim that our constitution’s use of “the individual
citizen” somehow differs from the federal constitution’s use of “the people.” Likewise, we need
not decide whether our constitution’s use of “[s]ubject only to the police power” improperly limits
his right under the second amendment.
¶ 41 Affirmed.
The provided text does not include any court ruling citations, full or abbreviated, including the target citation 'people-v-brooks'. Therefore, no changes are necessary.
Here's the text with no modifications:
NOTICE
IL App (4th) 231444-U FILED
This Order was filed under October 2, 2024
Supreme Court Rule 23 and is NO. 4-23-1444 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
BENJAMIN GUSTAFSON, ) No. 17CF159
Defendant-Appellant. )
) Honorable
) Michael L. Atterberry,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Steigmann and DeArmond concurred in the judgment.
ORDER
¶1 Held: Defendant failed to establish that the armed habitual criminal statute under which
he was convicted was facially unconstitutional under either the United States
Constitution or the Illinois Constitution.
¶2 Defendant, Benjamin Gustafson, was convicted of being an armed habitual
criminal and sentenced to 24 years’ imprisonment. He subsequently filed a petition for
postconviction relief that was denied following an evidentiary hearing. Defendant appeals the
denial of his postconviction petition, arguing, for the first time on appeal, that the armed habitual
criminal statute is facially unconstitutional under the United States and Illinois Constitutions. We
affirm.
¶3 I. BACKGROUND ¶4 In May 2018, a jury found defendant guilty of unlawful possession of a weapon
by a felon (720 ILCS 5/24-1.1(a) (West 2016)) and being an armed habitual criminal (id. § 24-
1.7(a)). The trial court found that the former offense merged into the latter offense and sentenced
defendant to 24 years’ imprisonment. This court affirmed defendant’s conviction on direct
appeal. [CITATION]. In September 2021, defendant
pro se filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725
ILCS 5/122-1 et seq. (West 2020)). Defendant did not include the constitutional challenges he
raises on appeal in his postconviction petition. The trial court denied defendant’s petition
following an evidentiary hearing.
¶5 This appeal followed.
¶6 II. ANALYSIS
¶7 On appeal, and for the first time, defendant argues that the armed habitual
criminal statute is facially unconstitutional under the second amendment of the United States
Constitution (U.S. Const., amend. II) and article I, section 22 of the Illinois Constitution (Ill.
Const. 1970, art. I, § 22), pursuant to the new framework for analyzing second amendment
challenges articulated by the Supreme Court in [CITATION].
¶8 Before addressing the merits of defendant’s constitutional challenges, we note
that the State, citing our supreme court’s decision in [CITATION],
contends defendant forfeited the arguments raised on appeal by failing to include them in his
postconviction petition and, according to the State, we lack the authority to excuse defendant’s
[SEGMENT 3]
forfeiture. In [CITATION], our supreme court “stress[ed] that our appellate court is not free, as this
court is under its supervisory authority, to excuse, in the context of postconviction proceedings,
an appellate [forfeiture] caused by the failure of a defendant to include issues in his or her
postconviction petition.” [CITATION] at 508. However, Jones does not apply to the instant appeal, as a
facial challenge to the constitutionality of a statute is not subject to forfeiture and may be raised
at any time. [CITATION], ¶ 39 (“[A] challenge to the constitutionality of a statute
may be raised at any time.”); [CITATION], ¶ 24 (“Voidness
challenges are not subject to forfeiture or any other procedural bar, and such challenges may be
raised at any time in any court.” (Internal quotation marks omitted.)). Thus, we reject the State’s
contention and address defendant’s arguments on the merits.
¶ 9 “Constitutional challenges carry the heavy burden of successfully rebutting the
strong judicial presumption that statutes are constitutional.” [CITATION], ¶ 90. “That presumption applies with equal force to legislative enactments that declare
and define conduct constituting a crime and determine the penalties imposed for such conduct.”
[CITATION], ¶ 23. “To overcome this presumption, the party challenging the
statute must clearly establish that it violates the constitution.” [CITATION], 487 (2005). “A party raising a facial challenge to a statute faces a particularly heavy burden.
[CITATION.] A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid.” [CITATION], ¶ 10. “Courts have a duty to uphold the constitutionality of a statute whenever reasonably
possible, resolving any doubts in favor the statute’s validity.” [CITATION], ¶ 23. “The
determination of whether a statute is constitutional is a question of law to be reviewed de novo.”
[CITATION], ¶ 30.
¶ 10 A. The United States Constitution
¶ 11 Relying on the Supreme Court’s decision in [CITATION], defendant first argues that the
armed habitual criminal statute violates the second amendment to the United States Constitution
on its face. According to defendant, he “is part of ‘the People’ to whom the Second Amendment
refers, and his past felony convictions do not remove him from that group.” Defendant further
contends that the statute is inconsistent with the nation’s historical tradition of firearm regulation,
arguing “there is no founding-era evidence of permanent status-based revocation of the right to
keep and bear arms.”
¶ 12 The second amendment to the United States Constitution provides as follows: “A
well regulated Militia, being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.” U.S. Const., amend. II. The Supreme Court, in
[CITATION], and [CITATION], held “that the Second and Fourteenth Amendments protect the right of an ordinary,
law-abiding citizen to possess a handgun in the home for self-defense.” [CITATION]. In [CITATION], the Supreme Court held, “consistent with [CITATION] and [CITATION], that the Second and
Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside
the home.” Id. at 10. In reaching its decision, the [CITATION] court articulated the following
framework for analyzing whether a particular regulation violates the second amendment:
“[W]e hold that when the Second Amendment’s plain text covers
an individual’s conduct, the Constitution presumptively protects
that conduct. To justify its regulation, the government may not
simply posit that the regulation promotes an important interest.
Rather, the government must demonstrate that the regulation is
consistent with this Nation’s historical tradition of firearm
regulation. Only if a firearm regulation is consistent with this
Nation’s historical tradition may a court conclude that the
individual’s conduct falls outside the Second Amendment’s
‘unqualified command.’ ” Id. at 17 (quoting [CITATION]).
¶ 13 The armed habitual criminal statute provides, in pertinent part, that a “person
commits the offense of being an armed habitual criminal if he or she receives, sells, possesses or
transfers any firearm after having been convicted a total of 2 or more times of any combination”
of certain enumerated offenses. See 720 ILCS 5/24-1.7(a) (West 2016). There is no dispute that
the State proved the essential elements of the offense of being an armed habitual criminal
beyond a reasonable doubt at defendant’s trial.
¶ 14 As noted above, defendant argues the armed habitual criminal statute is facially
unconstitutional because it regulates conduct—i.e., possessing a firearm—protected by the
second amendment and it is inconsistent with this nation’s historical tradition of firearm
regulation where “there is no founding-era evidence of permanent status-based revocation of the
right to keep and bear arms.” We disagree, as this court has repeatedly rejected this same
argument on the basis that a felon’s possession of a firearm is not conduct protected by the
second amendment. See [CITATION] (finding a felon’s
possession of a firearm is not conduct protected by the second amendment); [CITATION]
(same); [CITATION] (same);
[CITATION] (same).
¶ 15 In [CITATION], the defendant argued that his conviction for unlawful possession of a
weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)) should be vacated because the unlawful
possession of a weapon by a felon statute was facially unconstitutional for the same reasons
advanced by defendant in this case. [CITATION]. Relying on the First
District’s decision in [CITATION], we rejected the defendant’s
argument on the basis that, as a felon, Bruen simply did not apply to him. Id. ¶¶ 18-21.
Specifically, we relied on the following reasoning in [CITATION] to conclude that a felon’s possession
of a firearm was not conduct protected by the second amendment:
“The Bruen Court could not have been more clear that its newly
announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like
defendant. [CITATION] (the holding
was limited to laws affecting ‘law-abiding citizens’). Just in case a
reader missed the first time that the court said it, the court repeated
it 18 times. [CITATION] passim (the six
justices in the majority repeated the phrase ‘law-abiding’ 18 times
in their majority opinion and their concurrences). Further, Justice
Kavanaugh in his concurrence quoted an earlier case that stated:
‘ “[N]othing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
***.” ’ [CITATION] (Kavanaugh, J.,
concurring, joined by Roberts, C.J.) (quoting [CITATION]).
Justice Kavanaugh’s concurrence was
joined by Chief Justice Roberts, and they both joined the
six-justice majority opinion. Based on the plain, clear, and repeated
language of the justices in the majority, defendant is simply
outside the box drawn by Bruen.” [CITATION], ¶ 37.
We found the [CITATION] court’s reasoning instructive and agreed that “Bruen’s historical-tradition
test applies to regulations affecting law-abiding citizens’ possession of firearms.” (Emphasis in
original.) [CITATION], ¶ 21. Ultimately, in rejecting the defendant’s facial
challenge to the unlawful possession of a weapon by a felon statute, we held that, “[a]s a felon,
defendant, by definition, is not a law-abiding citizen. Thus, defendant cannot show that his
conduct was presumptively protected by the second amendment, and therefore, he does not fall
within the scope of Bruen.” Id.
¶ 16 Here, there is no dispute that defendant is a convicted felon and therefore not a
“law-abiding citizen.” Thus, consistent with our opinion in [CITATION], we find defendant has failed
to establish that his conduct in possessing a firearm as a convicted felon was presumptively
protected by the second amendment. We note that defendant “urges this Court to reject” the
cases that have held a felon’s possession of a weapon is not protected by the second amendment.
He contends we should instead find, as the First District did in [CITATION], ¶ 89, that a felon’s possession of a firearm is conduct presumptively protected by
the second amendment because a “defendant’s status as a felon is irrelevant” when determining
whether the second amendment’s plain text covers an individual’s conduct. We decline to follow
[CITATION], as it is in direct conflict with our holdings in [CITATION], and [CITATION]. See
[CITATION], ¶ 44 (“One district of the appellate court is not bound to follow the decision of another district when the district has made a determination of its own contrary to that of another district.”). Moreover, we note that a
====== End of Modified Court Ruling ====== separate panel of the First District has flatly rejected the Brooks court’s finding ([CITATION]) and another panel has called its reasoning into
[SEGMENT 4]
question ([CITATION]). Accordingly, for the reasons
discussed, we reject defendant’s argument that the armed habitual criminal statute violates the
second amendment to the United States Constitution on its face.
¶ 17 B. The Illinois Constitution
¶ 18 Defendant also argues that the armed habitual criminal statute violates article 1,
section 22 of the Illinois Constitution (Ill. Const. 1970, art. I, § 22) on its face. Defendant asserts
that “the Illinois Constitution provides greater protection than the Second Amendment by
expanding the group of persons subject to its provisions.” He further maintains that “to the extent
the prefatory clause in the Illinois Constitution, ‘Subject only to the police power,’ limits the
right to keep and bear arms, under the Supremacy Clause, those limits go only as far [as] the
historical limits the Supreme Court established in [Bruen].”
¶ 19 Article I, section 22 of the Illinois Constitution provides, “Subject only to the
police power, the right of the individual citizen to keep and bear arms shall not be infringed.” Ill.
Const. 1970, art. I, § 22. “The section does not mirror the second amendment to the Federal
Constitution [citation]; rather it adds the words ‘[s]ubject only to the police power,’ omits
prefatory language concerning the importance of a militia, and substitutes ‘the individual citizen’
for ‘the people.’ ” [CITATION]. “[T]he latter two changes were intended to broaden the scope of the
right to arms from a collective one applicable only to weapons traditionally used by a regulated
militia [citation], to an individual right covering a wider variety of arms.” Id. (citing Report of
the Bill of Rights Committee on the Preamble and Bill of Rights, 6 Record of Proceedings, Sixth
Illinois Constitutional Convention 87). “Equally distinctive, however, is the explicit recognition
of ‘the police power’ as a limitation on the liberty the provision affords.” Id. “The Bill of Rights
Committee explained in its report that ‘[b]ecause arms pose an extraordinary threat to the safety
and good order of society, the possession and use of arms is subject to an extraordinary degree of
control under the police power.’ ” Id. at 491-92 (quoting Report of the Bill of Rights Committee
on the Preamble and Bill of Rights, 6 Record of Proceedings, Sixth Illinois Constitutional
Convention 88).
¶ 20 This court, in [CITATION] and [CITATION], rejected the same argument defendant now raises,
finding that prohibiting the possession of firearms by felons was a proper exercise of the
legislature’s police power. [CITATION], ¶¶ 17-18. We reasoned, “Illinois courts have recognized that, in McDonald,
Justice Alito ‘noted that federal and state legislatures and local governments have police powers
to pass laws that promote the health, safety and general welfare of their citizens.’ ” [CITATION], ¶ 27 (quoting [CITATION], ¶ 23).
Moreover, “the Supreme Court reiterated its statement in Heller that its holding did not cast
doubt on longstanding regulatory measures such as ‘prohibitions on the possession of firearms
by felons.’ ” [CITATION], ¶ 18 (quoting McDonald, 561 U.S. at 786).
Thus, we found that “even assuming defendant is an ‘individual citizen’ such that he falls under
the scope of article I, section 22, contrary to defendant’s argument, the police power includes the
power to regulate certain aspects of gun possession and ownership,” including “the longstanding
prohibition on the possession of firearms by felons.” (Internal quotation marks omitted.) [CITATION], ¶ 27.
====== End of Part of a Court Ruling ====== ¶ 21 We agree with the reasoning and holdings in [CITATION] and [CITATION], and again find that
the prohibition on the possession of firearms by felons is a proper exercise of the legislature’s
police power. Accordingly, we conclude defendant has failed to establish that the armed habitual
criminal statute violates article I, section 22 of the Illinois Constitution.
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we affirm the trial court’s judgment.
¶ 24 Affirmed.
- 10 - [CITATION]
2024 IL App (1st) 221562-U
No. 1-22-1562
First Division
September 30, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 21 CR 10721
v. )
)
SONNIE MARTIN, ) Honorable
) Vincent M Gaughan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for unlawful possession of a weapon by a felon is affirmed
where (1) the evidence was sufficient to prove beyond a reasonable doubt that he
possessed a firearm within the meaning of the statute, (2) the trial court properly
denied his motion to suppress, and (3) his as-applied constitutional challenge under
the second amendment is without merit.
¶2 Following a bench trial, defendant-appellant Sonnie Martin was found guilty of unlawful
possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2020)) and sentenced to No. 1-22-1562
44 months’ imprisonment. Defendant appeals therefrom, arguing that (1) there was insufficient
evidence to find him guilty of UPWF beyond a reasonable doubt; (2) the trial court erred in denying
his motion to suppress; (3) his conviction for UPWF violates the second amendment of the United
States Constitution; and (4) his 44-month sentence was excessive. 1 For the reasons that follow, we
affirm.
¶3 I. BACKGROUND
¶4 On August 13, 2021, defendant was charged by indictment with one count of UPWF and
two counts of aggravated unlawful use of a weapon based on an investigatory stop and subsequent
search which took place on July 21, 2021.
¶5 Prior to trial, on December 7, 2021, defendant filed a motion to suppress evidence alleging
that the police did not have reasonable, articulable suspicion to stop him, and therefore, the weapon
seized from his person was inadmissible as evidence. A hearing was conducted contemporaneously
with the trial at which the following evidence was presented.
¶6 Chicago police officers Cesar Cuevas and Jose Granados both testified as to the following
facts. On July 21, 2021, while in their police vehicle, they received a dispatch call from the Office
of Emergency Management and Communications (OEMC) at 5:49 p.m., which relayed a 911 call
from an anonymous person who reported a person “flashing a gun” at the Falcon Fuel gas station
located at the intersection of 79th Street and Ashland Avenue. The subject was described as a black
male wearing a white T-shirt, black jeans, and orange, purple, and green shoes. After the dispatch
call recording was played in court, Cuevas testified that the dispatcher did not say that the caller
Because defendant’s sentence has been discharged, he has withdrawn the issue of excessive
sentence as moot. See [CITATION].
No. 1-22-1562
observed a person flashing a gun, how long it had been since the caller said there was a person
flashing a gun, or how the caller knew there was a person flashing a gun.
¶7 The officers drove towards the Falcon Fuel gas station where they observed an individual
matching the description in the parking lot of the gas station. The person was a black male wearing
a white T-shirt, black jeans, and orange, purple, and green shoes. The officers, along with
additional police officers in another police vehicle behind them, detained the person, who Cuevas
and Granados identified in court as defendant. This occurred one to two minutes after receiving
the dispatch call. Cuevas confirmed that, upon first seeing defendant, he was not doing anything
illegal.
¶8 Defendant was instructed to stop and place his hands on the wall. The officers proceeded
to handcuff defendant as Cuevas asked defendant if he had any weapons on his person. Defendant
responded, “my protection,” which Cuevas understood to mean that defendant had a weapon on
him. Defendant’s shirt was lifted, which revealed a weapon in his waistband. Granados recovered
the weapon, and eventually defendant was placed in the other police vehicle to be transferred to
the police station. Granados “cleared the weapon for any bullets and discovered one chambered
bullet in the firearm.” Granados testified that, based on his four years’ experience as an officer and
his further examination of the weapon at the police station, the weapon he recovered was a firearm.
[SEGMENT 5]
In court, Cuevas viewed the inventoried items, which he stated were “1 live round in my hand, the
black steel 9-millimeter handgun and then empty magazine.” In looking at the recovered weapon,
he noted that it looked like the serial number had been scratched off. Cuevas further confirmed
that the officers did not speak with anyone else at the gas station and did not request any security
footage and that no one else at the gas station matched the 911 caller’s description.
====== End of Part ====== ```plaintext
No. 1-22-1562
¶9 The recovered weapon was eventually sent to the Forensic Services Division. Both officers
testified that they did not request the Forensic Sciences Division to conduct any tests or further
analyze the weapon. Cuevas testified that he knew there were tests to recover scratched-off serial
numbers, but Granados was not aware of those tests at the time. Both officers also testified that
the recovered magazine did not fit the weapon and a part of it seemed to be missing.
¶ 10 The body-worn cameras on both Cuevas and Granados were active and functioning
properly that day. Footage from both body cams was played before the court.
¶ 11 In the footage from Cuevas’s body cam, the officers arrive at the gas station, immediately
spot an individual matching the description, and defendant is instructed to place his hands on the
wall. One of the officers then brings his hands around his back to place them in handcuffs, as
another officer asks, “You got anything on you?” and defendant responds, “Yes. My protection.”
As they lift defendant’s shirt, a weapon is visible in his waistband, which is then recovered. Cuevas
walks towards Granados who states that there was one bullet in the chamber and notes that the
magazine does not appear to fit the weapon. One of the other officers is heard asking defendant if
he has a firearm owner’s identification (FOID) card or a concealed carry license (CCL), but a
response, if offered, is not audible. Cuevas then returns to the vehicle to run defendant’s driver’s
license and Granados places the recovered items in the police vehicle. Granados states, “I don’t
even know what kind of gun that is.” He also states, “it’s a fake gun” and “it’s a BB-gun.” Cuevas
responds, “We can figure it out at the station.”
¶ 12 Granados’s body cam footage reflects the same sequence of events. In particular, he is seen
recovering the weapon from defendant’s waistband. He pulls the magazine out and eventually
removes a bullet from the chamber of the weapon. Later, after Cuevas states, “We can figure it out
at the station[,]” Granados walks back towards the other police vehicle to instruct the other officers
``` No. 1-22-1562
to drive defendant to the station. He then states, “I don’t think the gun is real.” Chicago police
officer Edwards 2 agrees, stating “That’s what I thought.” Granados responds, “It looks like a f***
BB-gun. I guess we’ll figure it out at the station.” Granados returns to his vehicle and the footage
ends.
¶ 13 On cross-examination, Granados testified that the magazine did not fit neatly within the
weapon which made him suspicious that it was not a real gun. He further testified that he examined
the gun and “[a]t the beginning” he thought it was a BB-gun or a fake gun. He also testified that it
appeared that part of the gun was wood, which he found inconsistent with other firearms. He also
confirmed that there was an orange dot on the weapon, which is consistent with BB-guns. He
confirmed that the reason for the orange dot was to distinguish between a real firearm and a BB-
gun. He elaborated that: “At the beginning when I first started looking at it I wasn’t sure until
further on. I kept on looking at all the aspects making sure I had a real firearm which ended up
being *** a real firearm.” When asked to clarify, he stated:
“So once I took the magazine out I realized that it was a broken magazine which is
a real magazine but the magazine has a spring inside. The bottom part, which was there
was supposed to hold the spring which the bullets go through the top and that firearm didn’t
have that. *** [T]hey broke that off.
Then there is a part in the gun where there’s supposed to be a serial number. That
serial number was not there. It appeared to be scratched off somehow. That’s how I knew
it was a firearm and then in the back of the gun there’s a pin which it’s supposed to – when
Officer Edwards’s first name does not appear in the record.
No. 1-22-1562
you hit the trigger the pin hits the bullet which makes it fire and that pistol has a pin in the
back. If you look at the back of the gun[,] there is that pin right there.”
¶ 14 Specifically, as to the serial number, Granados testified that “where the serial number is
supposed to be[,] [t]here was one letter and there’s supposed to be a number following it. There
was no number there.” When asked when he changed his mind that the weapon was in fact a real
gun, Granados responded: “Once I got to the station and I viewed the – I had time to view the
pistol because I can’t really – I have to be watching my surroundings while I’m on the street
especially in the area I was at.”
¶ 15 After both witnesses concluded their testimony, the State sought to present a firearms
expert as a witness, but the trial court denied the State’s motion. The parties then stipulated that
defendant had a 2017 felony conviction for delivery of a controlled substance, for which he
received two years’ probation.
¶ 16 The trial court first ruled on defendant’s motion to suppress, finding that the officers had
reasonable suspicion to stop defendant. This finding was based on the specific description given
in the 911 call, defendant matching the description, and the brief time that elapsed from the
dispatch call to the officers’ stop. The trial court also found that the officers’ detainment of
defendant as well as the lifting up of his shirt were within the scope of a Terry stop, and once they
saw the weapon, they had probable cause to arrest him.
¶ 17 As to the bench trial, the trial court found that the State had proved “each and every
element” beyond a reasonable doubt for the charge of UPWF. We note that, prior to ruling, the
court stated: “I don’t like the idea of Officer Cuevas saying, [‘]We’ll take care of it at the station.[’]
That was nonsense because nothing was taken care of.”
No. 1-22-1562
¶ 18 Defendant filed a motion to reconsider or, alternatively, for a new trial, asserting that the
State failed to prove the offense beyond a reasonable doubt and that the trial court erred in denying
the motion to suppress evidence. The trial court denied this motion.
¶ 19 Following a sentencing hearing, defendant was sentenced to 44 months’ imprisonment with
641 days of credit. On the same day, defendant filed a motion to reconsider the sentence, which
the trial court denied.
¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues that (1) there was insufficient evidence to find him guilty of
UPWF beyond a reasonable doubt; (2) the trial court erred in denying his motion to suppress; and
(3) his conviction for UPWF violates the second amendment of the United States Constitution.
¶ 23 A. Sufficiency of the Evidence
¶ 24 Defendant first contends that the evidence presented was insufficient to establish his guilt
beyond a reasonable doubt. In particular, defendant argues that the State failed to prove that
defendant possessed a “firearm” where the body cam video showed “the officers examining the
item and stating it was a BB-gun[.]” In his reply brief, defendant further argues that “there was no
evidence that Granados further examined the item at the station” and points out that the trial judge
commented on the officers’ failure to actually analyze the gun at the station as they insinuated they
would.
¶ 25 The State responds that defendants’ argument lacks merit where a live bullet was found in
the chamber of the weapon and both officers identified the weapon as being a “real” nine-
millimeter handgun based on their training and experience. The State also contends that the
argument fails because the trial court had the opportunity to observe the gun, its magazine, and the
No. 1-22-1562
recovered bullet, and based on that evidence, the trial court correctly found that each element of
the offense had been proved.
¶ 26 When a defendant challenges the sufficiency of the evidence against him, this court must
determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’ ” (Emphasis in original.) [CITATION], 261 (1985) (quoting [CITATION], 319 (1979)). A reviewing court will not retry the defendant or substitute
its judgment for that of the trier of fact regarding the credibility of witnesses or the weight to be
given to each witness’s testimony. [CITATION], 281 (2009). A defendant’s
[SEGMENT 6]
conviction will be reversed only when the evidence is so unreasonable, improbable, or
unsatisfactory that it creates a reasonable doubt of his guilt. [CITATION], ¶
24.
¶ 27 The State has the burden of proving beyond a reasonable doubt each element of an offense.
[CITATION], ¶ 35. To sustain a conviction for UPWF, the evidence must
establish beyond a reasonable doubt that the defendant possessed a firearm and was convicted of
a prior felony. 720 ILCS 5/24-1.1(a) (West 2020). The parties stipulated to defendant’s prior felony
conviction, and thus, the only element at issue before this court is whether defendant possessed a
firearm.
¶ 28 The FOID Act defines a “firearm” as any device “designed to expel a projectile or
projectiles by the action of an explosion, expansion of gas or escape of gas[.]” 430 ILCS 65/1.1.
(West 2020). Additionally, to qualify as a firearm under the statute, the device cannot fall into one
of four exceptions: BB-guns, paintball guns, flare guns, or certain antique firearms. Id.
No. 1-22-1562
¶ 29 It is well established that the positive and credible testimony of a single witness is sufficient
to sustain a conviction. [CITATION] In particular, “courts
have consistently held that eyewitness testimony that the offender possessed a firearm, combined
with circumstances under which the witness was able to view the weapon, is sufficient to allow a
reasonable inference that the weapon was actually a firearm.” [CITATION] Additionally, video evidence showing a defendant with a gun has been
sufficient to prove the defendant possessed a firearm. [CITATION]
¶ 30 In this case, the record shows that both police officers viewed the recovered weapon during
the bench trial and testified that it was a real firearm. See [CITATION]
36 (a trained and experienced police officer with an unobstructed view provided sufficient
evidence to establish the defendant was armed with a firearm); [CITATION] Further, a 9-
millimeter live round was found in the chamber of the firearm, which also supported the finding
that the recovered weapon was a firearm and not a BB-gun. Although both officers acknowledged
at trial that the gun was initially suspected to be fake or a BB-gun, they later determined that it was
a firearm as defined in the FOID Act. Contrary to defendant’s assertion, Granados specifically
testified that he further examined the firearm at the station “where he had time to view the pistol”
and he explained precisely what led him to believe upon further examination that it was a “real”
firearm. Additionally, there were no inconsistencies in the officers’ testimony, and thus, their
No. 1-22-1562
testimony remained unimpeached. In any case, this court cannot substitute its judgment for that of
the trier of fact regarding witness credibility. As such, we conclude that the trial court’s finding
that all elements of the offense were met was supported by sufficient evidence.
¶ 31 Nonetheless, defendant asserts that, because Granados initially commented that the gun
might not be real or might be a BB gun, his testimony identifying the weapon as a real firearm
should be discounted and is not sufficient to sustain his conviction. Citing [CITATION], defendant specifically contends that, as there was some contrary evidence
that the weapon was a fake gun or a BB-gun, the trial court could not have properly found that it
was a firearm as defined in the FOID Act.
¶ 32 In [CITATION], the defendant was convicted of armed robbery following a bench trial. Id. ¶ 1.
On appeal, the defendant argued that there was no evidence that the item in his hand met the
statutory definition of a firearm where the gun was never recovered and there was no detailed
description of the gun. Id. ¶ 41. The record showed that the victim testified that she saw the
defendant holding a gun and stated “I seen [sic] a whole gun. It was rested on the [counter], his
hand was on it, it was black.” Id. ¶ 51. In concluding that there was sufficient evidence for a rational
trier of fact to find that defendant was armed with a gun that met the statutory definition of a
firearm, the court stated that “[t]here was no contrary evidence presented that the gun was a toy
gun, a BB gun, or anything other than a ‘real’ gun.” Id. ¶ 52. The court based its conclusion on the
victim’s “unequivocal testimony and the circumstances under which she viewed the gun, coupled
with the videotape of the offense and still photograph[.]” Id.
¶ 33 Defendant misreads [CITATION] and improperly broadens its import to effectively conclude
that any contrary evidence that the gun was anything other than a real firearm would result in
insufficient evidence to prove that element. The fact that there is conflicting evidence does not
- 10 - No. 1-22-1562
render it insufficient for conviction. Rather, even where there is conflicting evidence presented at
trial, the trier of fact is free to weigh the evidence, determine the credibility of witnesses, and come
to any rational conclusion as to the sufficiency of the evidence. See [CITATION]. The trial court, as the trier of fact in a bench trial, did just that in this case.
¶ 34 Additionally, defendant’s argument that Granados’s testimony should be discounted in its
entirety based on his statements at the scene is effectively a request for this court to second-guess
the trier of fact’s weighing of the evidence. As we have already made clear, to reweigh the evidence
would usurp the role of the trier of fact. See [CITATION] (The reviewing court
“will not retry the defendant, nor will we substitute our judgment for that of the trier of fact.”).
¶ 35 Even accepting defendant’s seeming invitation to us to reweigh the evidence, his
insufficiency argument would nonetheless fail. Although Granados did state at the scene that the
gun was either fake or a BB-gun, he testified consistently at trial that, after examining the weapon
in greater detail and with better focus at the station, his opinion changed and he determined that it
was, in fact, a real firearm. While viewing the weapon in court, he provided the following reasons
to support his determination: the gun’s serial number had been scratched off; the gun had a pin in
it, which is consistent with real firearms; and the magazine did not fit in the gun simply because it
was broken. We acknowledge, as did the trial court, Granados’s initial uncertainty regarding the
weapon while at the scene. Clearly the trial court was aware of and considered Granados’s initial
speculation and the officers’ failure to submit the firearm for further analysis but ultimately
decided that the officers’ testimony was sufficiently credible to find that defendant possessed a
firearm as contemplated in the FOID Act. In so finding, the court relied on Granados’s testimony
that he investigated the firearm further and determined it was a firearm, as well as Cuevas’s
testimony that the weapon was a 9-millimeter handgun. Our reviewing courts have declined to
- 11 - No. 1-22-1562
“establish a minimum requirement” for proving that a defendant possessed an actual firearm
([CITATION]), and therefore, under the applicable standard of review,
we cannot say that the trial court’s conclusion based on the officers’ testimony at trial was
unreasonable.
¶ 36 Defendant also relies on [CITATION] for support. In [CITATION],
the defendant was convicted of armed robbery. Evidence at trial was to the effect that the arresting
officer drove the robbery victim back to the scene of the offense and the victim pointed out the
defendant, who was then arrested. [CITATION]. As the officer approached the defendant, he observed
him throw something into a bush. [CITATION]. A gun was retrieved from the bush, but it was not offered
into evidence at trial. [CITATION]. However, the officer described it as a “ ‘4.5 BB caliber gun with a three
inch barrel.’ ” [CITATION]. The inventory sheet in the record listed the gun consistently with the officer’s
testimony. [CITATION]. The victim described the gun as “ ‘a black, very portable gun.’ ” On appeal, the
supreme court concluded that the evidence was insufficient to support the trier of fact’s inference
that the “gun” the defendant possessed constituted a dangerous weapon. [CITATION]. This conclusion
was based on the evidence that the gun was in fact a small BB gun and the lack of evidence
regarding whether it was loaded, whether it was brandished as a bludgeon, or regarding its weight
or composition. [CITATION].
¶ 37 This case is distinct from [CITATION] in the obvious fact that the officers in this case, although
originally speculating that the weapon was a BB gun or a fake gun, both testified at trial that it was
a “real” firearm. In [CITATION], there was no dispute that the weapon was, in fact, a BB gun. [CITATION].
Moreover, the issue in [CITATION] was markedly different where the trier of fact was deciding whether a
small BB gun could be considered a dangerous weapon under the armed robbery statute, not
whether the weapon could be considered a firearm under the FOID Act.
- 12 - No. 1-22-1562
[SEGMENT 7]
¶ 38 Rather, the State offers [CITATION], as instructive, and we agree.
In that case, a police officer, who was about 50 feet away, observed the defendant leave the
building she was surveilling “ ‘carrying a silver handgun’ ” and leaving the area in a white van.
Id. ¶ 4. The officer followed the van, which was quickly stopped by other police officers. Id. After
the occupants, which included the defendant and two other individuals, exited the van, a handgun
was recovered from underneath the van near the door from which the defendant exited. At trial,
the officer described the item recovered as “ ‘the same color [and] size of the handgun I saw the
gentleman enter the van with.’ ” Id. ¶¶ 5-8. The officer further testified that she had 12 years of
experience as a police officer and was familiar with handguns. Id. ¶ 6. The gun was not offered
into evidence at trial, and it was not tested for fingerprints. Id. ¶¶ 8-9. The appellate court reversed
the defendant’s conviction for being an armed habitual criminal, reasoning that, in the case of
possessory firearm offenses, the item possessed cannot be inferred to be a firearm from
circumstantial evidence. Id. ¶ 17.
¶ 39 Our supreme court reversed this court and concluded that a rational trier of fact could infer
from the testimony presented *** that [the] defendant possessed a firearm” as defined by the
statute. Id. ¶ 35. This conclusion was based on the clear and unimpeached testimony of the officer
who first observed the gun and another officer’s testimony that the recovered weapon matched the
description and was fully loaded and had to be unloaded when it was recovered. Id. ¶¶ 36-37.
¶ 40 Although there were no initial speculations in [CITATION] regarding the weapon’s
authenticity, we nonetheless find [CITATION] helpful. Notwithstanding Granados’s statements,
greater evidence was presented at trial that the recovered weapon was a firearm. Unlike [CITATION],
here, the recovered weapon was presented in court, along with a live round found in the weapon’s
chamber; the testifying officers viewed the weapon during the bench trial; and Granados
- 13 - No. 1-22-1562
specifically offered several reasons as to why he later determined at the police station that the
firearm was not a BB gun or a fake gun but was, in fact, a real gun. Additionally, in reversing the
appellate court, the supreme court in [CITATION] rejected the notion that there must be some direct
or physical evidence proving that an item is a “real” firearm. This supports our earlier point that
there is no minimum evidentiary requirement for firearms identification, and thus, the trial court
here was free to conclude, based on the evidence presented, that the firearm fell within the statutory
definition, even without a firearms expert or forensic analysis.
¶ 41 Because the credible testimony of experienced police officers can support a finding that a
weapon is a firearm as defined by statute, we do not find the trial court’s finding that defendant
possessed a firearm so unreasonable, improbable, or unsatisfactory that there is a reasonable doubt
as to defendant’s guilt. See [CITATION]. Accordingly, viewing the evidence in the light most favorable to the State, as we must, we conclude that there was
sufficient evidence to support defendant’s conviction for UPWF.
¶ 42 B. Motion to Suppress
¶ 43 Next, defendant argues that the trial court erred in denying his motion to suppress because
the officers relied solely on an anonymous tip and lacked reasonable suspicion or probable cause
to stop, search, and arrest defendant. Defendant relies on [CITATION], as
well as [CITATION], for support of his argument.
¶ 44 In response, the State contends that the stop of defendant was permissible as it was
predicated on reasonable suspicion created by the anonymous 911 call that provided a detailed
description of the suspect. For support, the State cites [CITATION], where
our supreme court recently assessed a stop based on an anonymous 911 call. The State also asserts
that the officers had valid probable cause to arrest defendant based on the weapon recovered from
- 14 - No. 1-22-1562
his person. For the reasons that follow, we agree with the State and conclude that the trial court
properly denied the motion to suppress.
¶ 45 The standard for reviewing a trial court’s ruling on a motion to suppress is twofold. First,
the trial court’s factual findings and credibility determinations are subject to the manifest weight
of the evidence standard. [CITATION]. A finding is against the
manifest weight “ ‘only when an opposite conclusion is apparent or when findings appear to be
unreasonable, arbitrary, or not based on evidence.’ ” [CITATION],
¶ 21 (quoting [CITATION]). This deferential standard is based
on the supposition that the trial court is in “a superior position to determine and weigh the
credibility of the witnesses, observe the witnesses’ demeanor, and resolve conflicts in their
testimony.” [CITATION]. Second, the trial court’s ultimate legal ruling, i.e. whether
the evidence should be suppressed, is reviewed de novo. Id.
¶ 46 The fourth amendment to the United States Constitution provides the “right of the people
to be secure in their persons, houses, papers and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const., amend. IV. The reasonableness requirement of the
fourth amendment generally requires a warrant supported by probable cause. [CITATION].
“Probable cause exists where the facts and circumstances, considered as a whole, are
sufficient to justify a belief by a reasonably cautious person that the defendant is or has been
involved in a crime.” [CITATION], ¶ 25.
¶ 47 An exception to the warrant requirement exists where officers conduct an investigatory
stop, also known as a Terry stop, based on reasonable suspicion that a crime has been or is about
to be committed. [CITATION], ¶ 8; see [CITATION] (setting forth the principles for determining the reasonableness of a temporary investigative
- 15 - ```plaintext
No. 1-22-1562
stop). An officer may make an investigatory stop of any person if he or she “reasonably infers
from the circumstances that the person is committing, is about to commit or has committed” a
criminal offense. 725 ILCS 5/107-14(a) (West 2020). The relevant question is whether the facts
available to the officer would warrant a person of reasonable caution to believe that the action
taken was appropriate. [CITATION]. This analysis
necessitates a balance of the need for the seizure against the invasion that the seizure entails. [CITATION].
¶ 48 Further, “reasonable suspicion is a less exacting standard than probable cause,” and an
investigatory stop may be justified even “when no violation of the law is witnessed, so long as it
does not constitute a mere hunch.” [CITATION], ¶ 26. An officer “must
point to specific, articulable facts that, taken together with rational inferences, reasonably warrant
the intrusion.” Id. As relevant here, where the investigatory stop is based on information from a
third party, the tip must be reliable and allow “an officer to reasonably infer that a specific person
was involved in criminal activity.” [CITATION]. In
assessing the reliability of a tip, the court must consider whether the officers’ observations
corroborate the tip, whether the informant explains the basis for his knowledge of the tip, and the
duration of time between receiving the tip and acting upon it. [CITATION].
¶ 49 Here, the State satisfied its burden of establishing that the officers’ investigatory stop was
appropriate based on the information available to them at that time. Both officers testified that they
received a dispatch call relaying a 911 call that a person was “flashing a gun” at a gas station and
this person was wearing a white T-shirt, black pants, and orange, green, and purple sneakers. This
dispatch call was included in the record and played during the bench trial. Although the officers
- 16 -
``` No. 1-22-1562
presumed that the report was based on the 911 caller’s personal observation, the call did not
explicitly make that clear. Less than two minutes after the dispatch call, the officers arrived at the
gas station and immediately observed defendant who precisely matched the description and,
according to Cuevas, no one else at the gas station matched the description. The body cam footage
also showed that defendant matched the description including the distinctively colored sneakers.
This observation of a person matching the description corroborated the 911 call and from that an
inference of credibility was warranted. [CITATION], ¶ 30; see also [CITATION]).
¶ 50 The officers then detained defendant and, based on the information gleaned from the 911
call, they began handcuffing him and asked if he had anything on his person. Under these
circumstances, the handcuffing was reasonable as the officers already reasonably suspected, based
on the 911 call and defendant’s matching description, that he was armed with a weapon. See
[CITATION] (handcuffing a person does not necessarily convert a Terry stop into an
arrest). When defendant responded that he had his protection, which Cuevas understood to mean
[SEGMENT 8]
a weapon, the officers lifted his shirt, revealing a gun in his waistband. See [CITATION] (“A weapons frisk is valid only when the officer has reason to believe that
a particular individual is armed and dangerous.”); see also [CITATION] (Police officers “are not required to risk their safety by assuming that a suspect will
submit peacefully to questioning.”). Based on this, the trial court determined that the investigatory
stop was proper, and there is nothing in the record that persuades us that an opposite conclusion
was apparent or that the court’s decision was arbitrary or unreasonable. See [CITATION]
- 17 - No. 1-22-1562
Ill. App. 3d 26, 31 (2000) (the scope of the investigation must be reasonably related to the
circumstances that justified the police interference and the investigation must last no longer than
necessary to effectuate the purpose of the stop); see also [CITATION]
¶ 51 In coming to this conclusion, we have considered the cases upon which each party relies
for support of their respective positions as to the reliability of the 911 call.
¶ 52 We begin with defendant’s request that we follow the decision of [CITATION], to conclude that the 911 call here did not provide the officers with reasonable suspicion
to justify the investigatory stop. In [CITATION], an anonymous caller reported to the police that a young
black male wearing a plaid shirt was standing at a bus stop carrying a gun. Id. at 268. No audio
recording of the tip was provided, and nothing was known about the caller. Id. It was also unknown
how much time after receiving the call officers were instructed to respond. Id. When the officers
arrived at the bus stop, they observed an individual matching the description, and although the
defendant did not make any furtive movements and did not visibly appear to have a gun, the
officers detained him, frisked him, and seized a gun from his pocket. Id.
¶ 53 The Supreme Court held that the anonymous tip by itself was insufficient to justify the
Terry stop. Id. at 272. In determining that the tip did not give rise to reasonable suspicion, the
Court specified its deficiencies: there was no predictive information, the informant was
unaccountable, and the informant did not explain how he had obtained this information regarding
a concealed weapon. The Court thus reasoned that an anonymous tip must be reliable in “its
- 18 - No. 1-22-1562
tendency to identify a determinate person” and “its assertion of illegality” and those requirements
were not satisfied in the case before it. Id. at 272.
¶ 54 In contrast to J.L., the tip here was slightly more specific in its description of the person
including both the color of the person’s pants and the distinctive coloring of his sneakers and the
tip was corroborated where a person matching the description was observed only one to two
minutes after the dispatch call. Additionally, the use of the emergency system for the anonymous
caller in this case is a significant distinction from the call made in J.L.
¶ 55 Finally, there was an assertion of suspected illegality in the call here that was not present
in J.L. Here, the caller stated that the person was “flashing a gun” at the gas station. The applicable
definitions of “flash” in this context are: “to make known or cause to appear with great speed,” “to
display obtrusively and ostentatiously,” or “to expose to view usually suddenly and briefly[.]”
Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/flash (last
visited September 9, 2024). The fact that the caller used the word “flashing” suggests that the
person was doing so repeatedly or consistently, and it is significant that the person was doing this
in a public place. Even if the person had both a FOID card and a CCL, exposing the handgun in
public would constitute a violation of the Concealed Carry Act (430 ILCS 66 et seq. (West 2020)).
See [CITATION]. From the foregoing, it would be reasonable
to infer that (1) the caller personally observed this behavior and, (2) the person “flashing a gun” is
not a law-abiding citizen in lawful possession of a firearm. See [CITATION]. In contrast, the caller in J.L. merely stated the
person at the bus stop was in possession of a gun. Thus, it was unclear how a bystander could have
- 19 - No. 1-22-1562
knowledge of a concealed weapon and there was no report of conduct that suggested illegal
activity. For these reasons, we find J.L. distinguishable.
¶ 56 Defendant also relies on [CITATION]. There, a different
panel of this district found that an “effectively anonymous” tip “did not support a finding of
reasonable suspicion” and “reverse[d] the trial court’s denial of [the defendant’s] motion to
suppress.” Id. ¶ 18. The tip in [CITATION] came from a Chicago Park District security guard who
informed a Chicago police sergeant that a man, “described as black, about five-and-a-half feet tall,
wearing a purple shirt and black jeans” was in the park with a gun in his pocket. Id. ¶ 1. That
sergeant then relayed this information to two Chicago police officers, who found someone
matching that description within two to three minutes. Id. Those officers conducted a Terry stop
and frisk on the defendant and recovered a firearm. Id. ¶ 2.
¶ 57 The tip in [CITATION] has one significant commonality with the tip in J.L., which is that the
tipster did not provide any basis for their knowledge that a weapon was concealed on either of the
respective defendants. That commonality is not present here where the 911 caller specifically
stated that the individual was “flashing a gun” outside of a gas station and the dispatch call also
relayed that same phrasing to the responding officers in this case. Certainly, this does not constitute
demonstrative proof of illegality. See [CITATION], ¶ 47 (quoting [CITATION]) (Reasonable suspicion does not require police
to “ ‘rule out the possibility of innocent conduct.’ ”). However, it is more sufficient than the mere
statements in [CITATION] and J.L. of a person in possession of a gun without explaining how the tipster
knew that information and how that conduct implicated potential criminal activity.
¶ 58 The State relies, instead, on [CITATION], a recent case in which our
supreme court assessed the reliability of an anonymous tip. There, officers received a dispatch,
- 20 - No. 1-22-1562
like here, from the OEMC stating that an anonymous caller reported that a white male wearing a
black jacket and hooded sweatshirt was “swinging” at two females and that he had a gun on him.
[CITATION] The caller identified the intersection at which the group was located. [CITATION] Police arrived at
the intersection two or three minutes after receiving the dispatch but did not see anyone matching
the individuals described. [CITATION] Another dispatch call came through, relaying additional
information from the caller that the group was walking two blocks north of the intersection. [CITATION]
The officers relocated to that area within two to four minutes and observed a white male matching
the caller’s description, who was holding the right side of his waistband. [CITATION] The two women were
not seen nearby, and the testifying officer did not see the defendant violate any laws. [CITATION] The officer
detained the defendant, and based on the call and his own observations, he patted down the
defendant for his own safety and recovered a revolver from his waistband. [CITATION] The circuit court
denied his motion to suppress, and this court affirmed. [CITATION]
¶ 59 Our supreme court agreed, holding that the officers had the necessary reasonable suspicion
for an investigatory stop. [CITATION] Relying on [CITATION], the
court noted three indicia of reliability for anonymous tips: when the caller claims eyewitness
knowledge of criminal activity; when the time between the suspected criminal activity and the
officers’ response is brief; and when the caller uses the 911 emergency system to make their report.
[CITATION] The court found each of these present in the case before it where the tip was made through
the 911 system; it was a reasonable inference that the tipster observed the suspected criminal
activity firsthand as the tipster gave updated information through a second call; and the information
was relayed shortly after it was observed. [CITATION] The court further pointed to the officer’s
corroboration of the tip where he saw someone matching the description and he observed what
appeared to be an attempted concealment of a firearm. [CITATION]
- 21 - No. 1-22-1562
¶ 60 Additionally, the court rejected an attempt to analogize the defendant’s case to that of [CITATION] ¶ 31. The court pointed out several distinctions between the case before it and the facts in [CITATION]:
(1) the officer personally observed conduct that led him to believe that the defendant was
concealing a firearm; (2) the tip came through the 911 system; (3) the tipster seemed to have
[SEGMENT 9]
firsthand knowledge of the suspected criminal activity; and (4) the tip involved more than just the
possession of a firearm as the tipster also stated that the individual was “swinging at” two females.
[CITATION]. As we have explained above, we find the facts before us provide greater indicia of reliability
than those in [CITATION]. Indeed, our facts share more commonalities with [CITATION] because the tip came
through the 911 system, it involved more than just possession of a firearm where the caller stated
the person had been “flashing a gun” at the gas station, and that statement suggested that the caller
personally observed the flashing of the weapon, even though not stated explicitly.
¶ 61 We also find [CITATION], to which the State also cites, instructive. The 911 caller in
[CITATION] reported that another driver ran her off the road and she identified the make, model,
license plate number, the mile marker, and the direction of travel. [CITATION]. The police found
the matching car and pulled the defendant over about 15 minutes later. [CITATION]. The Supreme
Court found the 911 call there distinguishable from the unknown tip in [CITATION]. In contrast to [CITATION], the
caller had firsthand knowledge of the criminal activity, the officers’ observation of the car only a
brief time later suggested the caller’s reliability, and the caller exposed herself to identification
and accountability by using the 911 system. [CITATION]. Nonetheless, the Court admitted that
it was a “close case.” [CITATION]. For the same reasons stated in regards to [CITATION], we find [CITATION]
sufficiently analogous. Although we may consider this to also be a “close case,” it is not so close
that an opposite conclusion is apparent.
- 22 - No. 1-22-1562
¶ 62 Defendant also argues that “predictive information” is required, but we are unaware of, and
defendant fails to point us to, a case stating that predictive information is a mandatory requirement
for anonymous tips. Rather, it seems clear from [CITATION] that it is but one among
several indicia of reliability. As our supreme court stated in [CITATION]:
“[D]eficiency or uncertainty in the reliability of the informant can be compensated for by a strong
level of detail and corroboration of the content of the tip, and vice versa.” Accordingly, courts
must weigh a number of factors and the absence or presence of one is not necessarily determinative
of the outcome.
¶ 63 Finally, we agree with defendant’s assertion that 911 calls are not per se reliable, and we
do not believe that [CITATION] or [CITATION] stand for the proposition that they are. Rather, 911 calls
merely have a stronger indicia of reliability as compared to unknown calls made outside the
emergency system because they are not traceable and do not carry the possibility of penalty if
determined to be a false report. See [CITATION] (quoting [CITATION] and
explaining why 911 calls have a greater indicator of veracity). But, this is just one indicator of
reliability. In addition, here, the caller identified activity that could reasonably be suspected as
criminal where the person was “flashing a gun”; the description of the person was sufficiently
specific, particularly with the distinctive coloring of the sneakers; the description was corroborated
where the only person to match the description was defendant; and the officers acted upon the
dispatch call and identified the person matching the description in less than two minutes. We
acknowledge that it is not certain whether the 911 caller personally observed the suspicious
activity, but we do not consider this one factor to be determinative in this instance where other
factors weigh in favor of reliability. Thus, under our standard of review here, we cannot say that
the court’s determination that the call was reliable was against the manifest weight of the evidence.
- 23 - No. 1-22-1562
¶ 64 Defendant also argues that, because the officer initially believed the weapon to be a BB-
gun, the officers could not have had a reasonable belief that defendant had committed a crime and
therefore the officers lacked probable cause to arrest him. However, this argument does not
comport with Illinois courts’ functional application of probable cause, which “does not require a
law enforcement officer to ‘ “know” that certain items are contraband or evidence of a crime.’ ”
[CITATION].
¶ 65 “Probable cause is a fluid concept that turns on the assessment of probabilities in particular
factual contexts; it is not readily, or usefully reduced to a neat set of legal rules.” [CITATION]. It “
‘does not demand any showing that [a reasonable belief] be correct or more likely true than false.’
” [CITATION] (quoting [CITATION]) (plurality op.)). At the time of
the arrest, the officers believed that defendant had engaged in criminal activity by exposing a
firearm in public, the officers did not find a FOID card or CCL in defendant’s wallet, defendant
did not inform them that he possessed either, and the officers were not certain as to what type of
firearm had been recovered. These facts and circumstances, considered as a whole, are sufficient
to justify a belief that defendant had committed a crime. See [CITATION],
¶ 25; see also [CITATION], ¶ 30 (“[T]he existence of a possible
innocent explanation *** did not necessarily negate probable cause.”). Thus, the officers had
probable cause to effectuate an arrest. See [CITATION] (probable
cause rests on “commonsense considerations, and the calculation concerns the probability of
criminal activity, rather than proof beyond a reasonable doubt”).
¶ 66 Accordingly, we conclude that the trial court did not err in denying defendant’s motion to
suppress the evidence recovered during the officers’ stop and search of defendant.
¶ 67 C. Constitutional Challenge
- 24 - No. 1-22-1562
¶ 68 Defendant also argues that his conviction for UPWF violates the second amendment of the
Constitution as applied to him. He offers as support the United States Supreme Court’s decision
in [CITATION]. In particular, defendant argues
that the Illinois statute for UPWF is unconstitutional as applied to him because there is “no
historical tradition of prohibiting non-violent persons like [him] from possessing firearms.”
¶ 69 We first address the State’s contention that defendant’s as-applied challenge is forfeited
because it was raised for the first time here on appeal. Generally, the failure to raise an issue in the
trial court results in forfeiture of the issue in the reviewing court. [CITATION], ¶ 58. Facial constitutional challenges may be raised at any time; however, as-
applied constitutional challenges cannot. See [CITATION]. A
facial challenge alleges that the statute is unconstitutional under any set of facts, but an as-applied
challenge alleges only that the statute violates the constitution as applied to the particular set of
facts and circumstances of the case at bar. Id. ¶ 36. Because as-applied challenges are dependent
on the particular facts of the individual, “it is paramount that the record be sufficiently developed
in terms of those facts and circumstances for purposes of appellate review.” Id. ¶ 37. However,
where “[a]ll facts and circumstances to decide the defendant’s claim *** are already in the
record[,]” the claim may be raised and reviewed on appeal for the first time. [CITATION], ¶ 32, overruled on other grounds by [CITATION], ¶ 42; see
also [CITATION], ¶¶ 12-13; but see [CITATION], ¶ 35 n. 11 (stating that Thompson is “completely inapposite because it concerns the
special rules governing a section 2-1401 petition”).
¶ 70 The State asserts that the record in this case does not contain all the facts and circumstances
necessary to decide defendant’s constitutional challenge. According to the State, defendant’s
- 25 - No. 1-22-1562
second amendment claim turns on whether he is a non-violent felon or was simply carrying the
firearm for his protection; and these issues were not litigated below. We disagree with the State.
The record contains defendant’s criminal history, and it is unclear from the State’s brief precisely
what information it would have presented were this issue litigated below. We therefore consider
the merits of defendant’s as-applied challenge on appeal. See [CITATION].
¶ 71 That said, as we explain below, we find that defendant’s as-applied constitutional challenge
fails.
¶ 72 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. Here, the statute under which defendant was convicted provides that it is a felony to
“knowingly possess on or about [one’s] person or on [one’s] land or in [one’s] own abode or fixed
place of business any *** firearm *** if the person has been convicted of a felony under the laws
of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a). According to defendant, under
[CITATION], “Illinois laws criminalizing the possession of firearms by all felons cannot be constitutional
[SEGMENT 10]
in all applications.” The State responds that “defendant misreads both [CITATION] and the Second
Amendment as conferring an unqualified entitlement to possess firearms without restriction.”
¶ 73 Prior to [CITATION], a two-part test was utilized for evaluating the constitutionality of a firearm
regulation under the second amendment in accordance with [CITATION], and [CITATION]. In [CITATION], the Court was
tasked with determining the constitutionality of New York’s firearm licensing regime, which
required applicants to establish that “proper cause” existed for licensure. [CITATION].
- 26 - No. 1-22-1562
The Court ultimately held that the regime was unconstitutional, reasoning that the “proper cause”
requirement allowed the government too much discretion to deny a license to an applicant seeking
to possess a firearm out of a generalized desire for self-defense. [CITATION]. In so concluding, the
Court held that the test used since Heller was “one step too many” and rejected any means-end
analysis in the context of the second amendment. [CITATION]. Instead, the Court insisted upon a
test where the “plain text” and history would be the sole considerations. [CITATION]. At the first step,
an individual’s conduct is presumptively protected by the constitution if the conduct is covered by
the second amendment’s plain text. [CITATION]. Second, if the individual’s conduct is covered by the second
amendment, then “the government must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.” [CITATION].
¶ 74 With respect to the Bruen test, defendant asks that this court follow the reasoning of
[CITATION], for the first step of the Bruen test. There, the defendant was
convicted of being an armed habitual criminal and his prior qualifying felony convictions included
manufacture or delivery of narcotics and unlawful possession of a weapon by a felon. [CITATION].
On appeal, the defendant argued that the armed habitual criminal statute violated the second
amendment as applied to him. [CITATION]. As to the first step, the court first determined that the plain
text of the second amendment protects a person’s right to keep and bear arms and thus the
defendant’s possession of a firearm was “ ‘presumptively constitutional.’ ” [CITATION] (quoting Bruen,
[CITATION]). The court noted that, at the first step, the defendant’s status as a felon was
“irrelevant” to the analysis. [CITATION].
¶ 75 As of this writing, only two cases have agreed with [CITATION]’ reasoning for the first step of
the Bruen test, i.e. that felons are included in the plain text of the second amendment. See [CITATION] (adopting the reasoning of [CITATION] in finding that “the
- 27 - No. 1-22-1562
second amendment’s plain language does not exclude felons”); [CITATION], ¶ 8 (following Travis). Other than Brooks, Travis and Sherrod, the jurisprudence
in this court, in cases involving both facial and as-applied constitutional challenges, is that felons
are excluded from the plain text of the second amendment and thus the Bruen test does not apply.
See [CITATION], ¶ 23 (following the majority of cases in
finding that Bruen does not apply to convicted felons); [CITATION], ¶¶ 20-21 (finding the defendant’s facial constitutional challenge to the armed habitual
criminal statute failed because Bruen does not apply to laws regulating firearm possession by
felons); [CITATION], ¶ 68 (finding that Bruen does not apply to
felons); [CITATION], ¶ 21 (finding the second amendment only
protects law-abiding citizens and therefore Bruen did not apply to the defendant’s facial
constitutional challenge to the UPWF statute); [CITATION],
¶¶ 21-22 (declining to follow [CITATION] and instead finding that Bruen did not apply to the
defendant’s as-applied constitutional challenge to UPWF statute); [CITATION], ¶¶ 16-17 (declining to follow [CITATION] and finding that the defendant’s facial
challenge to the UPWF statute failed); [CITATION], ¶ 16 (finding
that Bruen did not indicate an intent to expand the second amendment’s protection to those who
are not law-abiding citizens); [CITATION], ¶ 24 (finding that the
second amendment’s language protects only law-abiding citizens); [CITATION], ¶¶ 152-53 (finding that Bruen did not apply to the defendant’s as-applied
constitutional challenge to the UPWF statute); [CITATION], ¶ 37
(finding the Bruen test only applies to law-abiding citizens, not felons); [CITATION], ¶¶ 37-39 (finding Bruen did not apply to the defendant’s as-applied
- 28 -
====== End of Part ====== No. 1-22-1562
constitutional challenge under the second amendment of the unlawful use of a weapon by a felon
statute).
¶ 76 Cases rejecting Brooks first reason that the Bruen Court made clear that its test did not
apply to felons where the Court’s holding was limited to “law-abiding citizens,” a point repeated
in the opinion no fewer than 18 times. See generally [CITATION] (the six justices in the
majority repeated the phrase “law-abiding” 18 times in their majority opinion and concurrences);
see also [CITATION], ¶ 153 (collecting federal district court cases finding
that the implication of [CITATION] is that the second amendment is limited to law-abiding citizens).
Further, in his concurring opinion in [CITATION], Justice Kavanaugh quoted [CITATION], stating: “ ‘[N]othing
in our opinion should be taken as to cast doubt on longstanding prohibitions on the possession of
firearms by felons ***.’ ” [CITATION] (Kavanaugh, J., concurring, joined by Roberts,
C.J.) (quoting [CITATION])). This same position was endorsed in Justice Alito’s
concurrence, wherein he stated that [CITATION] does not “disturb[ ] anything that we said in [CITATION] or
[CITATION] *** about restrictions that may be imposed on the possession of carrying guns.” [CITATION]
(Alito, J., concurring). By this, Justice Alito alludes to a footnote in [CITATION] where the
Court referred to prohibitions on the possession of firearms by felons as “presumptively lawful
regulatory measures[.]” [CITATION]; see also [CITATION]
(reiterating that [CITATION] “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)). Finally,
we point out that the Supreme Court’s recent decision in [CITATION], confirmed once
again that “prohibitions *** on the possession of firearms by ‘felons and the mentally ill’ are
‘presumptively lawful.’ ” [CITATION] (quoting [CITATION]).
Based on the foregoing, we find that [CITATION] does not apply to defendant, as
- 29 - No. 1-22-1562
he is a convicted felon and not a law-abiding citizen. See [CITATION]
(“Bruen just does not apply” to those who are not law-abiding).
¶ 77 Further, any attempts by the defendants in recent cases to cast the language in [CITATION]
as nonprecedential dicta—which defendant also argues in this case—have been found
unpersuasive. See [CITATION] Either
the language has not been considered dicta pursuant to the Eleventh Circuit Court of Appeals’
decision in [CITATION], which rejected such
a proposition as to Heller’s text, or it is considered judicial dicta from the Supreme Court and
should be afforded considerable weight in the lower courts, pursuant to [CITATION] We agree
that the language in the foregoing Supreme Court cases should be followed because “[e]ven obiter
dictum of a court of last resort can be tantamount to a decision and therefore binding in the absence
of a contrary decision of that court.” [CITATION]; see also [CITATION]
(stating it will heed the Supreme Court’s statement regarding firearms
prohibitions for felons even if dicta). Accordingly, as we concluded in our recent decision in
[CITATION] “[w]e presume that the Supreme Court’s inclusion of ‘law-abiding’ in the holding is not
superfluous or irrelevant, especially given the Court’s repeated use of the phrase throughout the
Bruen opinion, as well as its prior decisions.” [CITATION]; see also
[CITATION] (“[T]he Court’s language in Bruen supports the validity
of its dictum in Heller.”).
¶ 78 Even were we to find that the Bruen test applies to felons like defendant, we would
nonetheless find that defendant’s as-applied constitutional challenge to the UPWF statute fails at
- 30 - No. 1-22-1562
the second step. Defendant argues that there is no historical basis for prohibiting a person like him
from exercising his second amendment right based on a prior non-violent drug conviction.
[SEGMENT 11]
However, thus far, no case from this court has concluded that prohibition on firearms possession
for felons is unconstitutional as applied to nonviolent felons, and defendant has failed to convince
us to be the first. As we explain below, we conclude that the UPWF statute passes constitutional
muster as applied to defendant.
¶ 79 In [CITATION] and [CITATION], the Second District rejected this same argument for two reasons. First,
the court in both cases pointed out that the Supreme Court did not place any qualifiers on the term
“felons” or make any distinction between violent and non-violent felons in either Heller or
McDonald. [CITATION], ¶ 27;
see also [CITATION], 913 F. 3d 152, 159 (D.C. Cir 2019) (observing that “[f]elonies
encompass a wide variety of non-violent offenses, and we see no reason to think that the [United
States Supreme Court] meant ‘dangerous individuals’ when it used the word felon” in Heller).
Second, the court in both cases agreed with the Brooks court’s conclusion that there was a
sufficient historical tradition to support our legislature’s prohibition of firearm possession by
convicted felons. [CITATION], ¶ 27.
¶ 80 Turning to [CITATION], we note that defendant disagrees with the [TARGET
CITATION] court’s conclusion as
to the historical analysis and argues that the court failed to cite “any law from around the time the
Second Amendment was adopted that permanently disqualified felons from possessing
firearms[.]” We reject defendant’s invitation to depart from [CITATION] as to the second step of the
Bruen test.
- 31 - No. 1-22-1562
¶ 81 At the second step, the court reviewed the historical record of restrictions for possession of
firearms. [CITATION]. The court then concluded that “such
categorical restrictions [were] inextricably linked to the notion of ‘law abiding citizens.’ ” [CITATION].
In particular, the court found that there was “widespread acceptance of the legislatures’ authority
to disarm felons” during the founders’ era and the “majority of legal historians” agreed that the
right to bear arms “turned on one’s law-abiding character.” [CITATION]. Additionally, the court
specifically addressed the minority view “that traditionally regulation of firearms possession was
an effort to address a risk of dangerousness *** such that it would not apply to the defendant as a
nonviolent felon[.]” [CITATION]. The court found that there was no historical requirement that an
individual be deemed dangerous before prohibiting his or her from possessing a firearm and the
more recent legislative history supported the same conclusion. [CITATION]. Ultimately, the
court held that the armed habitual criminal statute was “consistent with the national historical
tradition of firearm regulation” and, therefore, was constitutional as applied to the defendant. [CITATION].
¶ 82 We do not find defendant’s argument that the court failed to cite “any law from around the
time the Second Amendment was adopted that permanently disqualified felons from possessing
firearms” persuasive. The Supreme Court in Rahimi reiterated that the legislative precursors to a
challenged regulation need not be a “ ‘dead ringer’ ”; rather, they must only be considered “
‘analogous enough to pass constitutional muster.’ ” [CITATION]. Moreover, the Rahimi Court explained that its recent second
The court also reviewed Supreme Court precedent on the prohibition of firearm possession for
felons, particularly the Supreme Court’s reliance on the phrase “law-abiding citizens.” [CITATION]. This is the
same precedent discussed and relied upon for the first step of the Bruen test; however, the [CITATION]
utilizes that same rationale only in the second step. See infra ¶¶ 76-79.
- 32 - No. 1-22-1562
amendment precedents “were not meant to suggest a law trapped in amber” and the second
amendment “permits more than just those regulations identical to ones that could be found in
1791.” Id. at ___, 144 S. Ct. at 1897-98. In accordance with the Supreme Court’s requirements,
the Brooks court aptly traced the historical roots of prohibitions on firearm possession for felons
back to the Founding Era and found sufficient support for firearms restrictions for felons, such as
the armed habitual criminal statute at issue there and the UPWF statute before us.
¶ 83 Accordingly, of our own volition, we find no reason to depart from the well-reasoned
decisions set forth above, and defendant has not convinced us that there is any reason to do so.
Thus, we conclude that the UPWF statute satisfies the second step under Bruen. Specifically, we
agree that, historically, legislatures have categorically banned individuals from possession of
firearms based on lawfulness, a felon’s dangerousness has not been a consideration in prohibiting
the felon from possessing a firearm, and the Supreme Court has also made no such distinction in
implicitly approving bans on firearms possession for felons. As such, defendant’s nonviolent
criminal history does not affect the constitutionality of the UPWF statute and thus the statute is
constitutional as applied to defendant. See also [CITATION]
(following [CITATION] in concluding that the UPWF statute was constitutional as applied to the
defendant).
¶ 84 III. CONCLUSION
¶ 85 For the reasons stated, we affirm the judgment of the circuit court.
¶ 86 Affirmed.
- 33 -
2024 IL App (1st) 230606-U
FIFTH DIVISION
September 13, 2024
No. 1-23-0606
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 CR 7288
)
MONTRICE AVERY, ) Honorable
) Steven G. Watkins,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court.
Justices Mitchell and Navarro concurred in the judgment.
ORDER
¶1 Held: The trial court judgment is affirmed where (1) defendant’s as-applied constitutional
challenge is forfeited, and (2) the unlawful use or possession of a weapon by a felon
statute is not unconstitutional on its face.
¶2 Following a jury trial, defendant Montrice Avery was found guilty of unlawful use or
possession of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2020)) and sentenced to
two years in prison. On appeal, Mr. Avery argues that his conviction is unconstitutional both
facially and as applied to him under [CITATION]. We affirm. No. 1-23-0606
¶3 I. BACKGROUND
¶4 Mr. Avery was charged by information with multiple offenses arising from his possession
of a firearm on July 7, 2020. The State proceeded on one count of UUWF premised upon Mr.
Avery having been previously convicted of felony escape in 2012.
¶5 At trial, Chicago police officer Michael Mendez testified that on July 7, 2020, he and his
partner, Officer Edgar Escobar, responded to a call regarding “a person with a gun” near Central
Avenue and West End Avenue in Chicago. When they arrived in the area in a marked squad
vehicle, Officer Mendez saw Mr. Avery, whom he identified in court, walking northbound on
Central Avenue. Mr. Avery “was manipulating” zippers on a bag on his chest. Officer Mendez
ordered Mr. Avery to “keep his hands up,” but Mr. Avery fled. Officers Mendez and Escobar
pursued on foot and eventually, Officer Escobar “secure[d]” Mr. Avery.
¶6 The State introduced Officer Mendez’s body camera footage, which is in the record on
appeal and has been viewed by this court. In the footage, Officer Mendez chases Mr. Avery into a
gangway. As Mr. Avery enters the gangway, a black handgun falls to the ground from his person.
¶7 Officer Escobar testified consistently with Officer Mendez regarding their encounter with
Mr. Avery. The State introduced Officer Escobar’s body camera footage, which depicted the same
events.
¶8 Officer Gonzalez testified that he followed Officers Mendez and Escobar and saw a black
handgun drop from “in front of” Mr. Avery. Officer Gonzalez recovered the firearm, which was
loaded with a live round chambered.
¶9 The State entered a stipulation that Mr. Avery had a prior felony conviction. The State
informed the judge that the conviction involved a 2012 escape from electronic monitoring, but the
specific felony was not communicated to the jury.
No. 1-23-0606
¶ 10 The jury found Mr. Avery guilty of UUWF. The court denied Mr. Avery’s motion and
[SEGMENT 12]
amended motion for a new trial.
¶ 11 Mr. Avery’s presentence investigative report (PSI) listed nine prior convictions from 1998
through 2017, including seven convictions for possession of cannabis or other controlled
substances, one for obstructing identification, and the stipulated escape from electronic
monitoring. After a hearing, the court sentenced Mr. Avery to two years in prison.
¶ 12 II. JURISDICTION
¶ 13 Mr. Avery was sentenced on February 27, 2023, and timely filed his notice of appeal on
March 28, 2023. We have jurisdiction over this appeal under article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)
and Rule 606 (eff. Mar. 12, 2021), governing appeals from final judgments in criminal cases.
¶ 14 III. ANALYSIS
¶ 15 On appeal, Mr. Avery argues that the UUWF statute is unconstitutional on its face under
the second amendment to the United States Constitution because it does not comply with the
framework established by the United States Supreme Court in [CITATION]. He also argues that the
UUWF statute is unconstitutional as applied to him because his prior convictions do not establish
that he was the type of “presently-dangerous individual” for whom the framers of the Constitution
permitted disarmament.
¶ 16 Here, Mr. Avery was convicted of UUWF under section 24-1.1(a), which provides that
“[i]t is unlawful for a person to knowingly possess on or about his person *** any firearm *** if
the person has been convicted of a felony.” 720 ILCS 5/24-1.1(a) (West 2020). Relevant here, Mr.
Avery was convicted of felony escape from electronic monitoring in 2012.
¶ 17 The constitutionality of a statute is a matter of law, which we review de novo. [CITATION]
No. 1-23-0606
[CITATION], ¶ 11. In analyzing a challenge to the constitutionality of a statute, “we
begin with the presumption that the statute is constitutional and that, if reasonably possible, this
court must construe the statute so as to affirm its constitutionality and validity.” Id.
¶ 18 A party raising a facial challenge to the constitutionality of a statute “faces a particularly
heavy burden,” because “[a] statute will be deemed facially unconstitutional only if there is no set
of circumstances under which the statute would be valid.” [CITATION], ¶ 10. Therefore, a facial challenge fails if any situation exists where the statute could be validly
applied. [CITATION], ¶ 25. In contrast, an as-applied challenge “requires a
showing that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” [CITATION], ¶ 36.
¶ 19 The second amendment provides: “A well regulated Milita, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION], holding that the second amendment elevated “the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” [CITATION], at 635.
The second amendment applies to the States through the fourteenth amendment of the United
States Constitution. [CITATION], 778 (2010).
¶ 20 Under [CITATION], courts developed a two-step test to assess second amendment
challenges to firearm regulations. See [CITATION], ¶ 11. First, the
government could justify the regulation by establishing whether the regulated activity fell outside
the scope of the second amendment as it was originally understood. Id. If the conduct fell beyond
the second amendment’s original scope, it was “categorically unprotected.” Id. Otherwise, the
court would progress to the second step and conduct a “means-end analysis” where the court
No. 1-23-0606
weighed the severity of the regulation against the ends the government sought to achieve in
enacting the regulation. Id.
¶ 21 In Bruen, the United States Supreme Court announced a new analytical framework for
evaluating the constitutionality of firearm regulations under the second amendment. [CITATION], ¶ 68 (citing [CITATION]). Under Bruen, a court must
first determine whether “the Second Amendment’s plain text covers an individual’s conduct.”
[CITATION], ¶ 69. If it does, then the Constitution
“presumptively protects that conduct” and the government must justify the regulation by showing
that it is consistent with the nation’s historical tradition of firearm regulation. [CITATION], ¶ 69. To make this showing, the government must point to
historical precedent which establishes what the founders understood the second amendment to
mean. [CITATION], ¶ 70.
¶ 22 As an initial matter, the State argues that Mr. Avery forfeited his as-applied constitutional
challenge because he raises it for the first time on direct appeal. See [CITATION], ¶ 32, overruled on other grounds by [CITATION]) (“[A] defendant
must present an as-applied constitutional challenge to the trial court in order to create a sufficiently
developed record.”).
¶ 23 We agree with the State, as the record is not sufficiently developed for us to review Mr.
Avery’s as-applied constitutional challenge. “[A]s-applied constitutional challenges are dependent
on the specific facts and circumstances of the challenging party and, therefore, it is paramount that
the record be sufficiently developed in terms of those facts and circumstances for purposes of
appellate review.” (Internal quotation marks omitted.) [CITATION], ¶ 27.
Here, Mr. Avery premises his as-applied challenge on the contention that the founders permitted
No. 1-23-0606
disarmament only for persons who were presently dangerous, not for persons who were mere
felons. He argues his prior convictions do not establish he is the type of presently dangerous
individual for whom the framers intended disarmament.
¶ 24 However, at trial, Mr. Avery stipulated to his felon status, so the trial court made no factual
findings regarding his other prior convictions and how they related to his present as-applied claim.
As such, Mr. Avery’s as-applied constitutional challenge is premature. See id. ¶ 31 ([CITATION]); see also Ill. S. Ct. R.
23(e)(1) (eff. Feb. 1, 2021) (unpublished orders entered on or after January 1, 2021, may be cited
for persuasive purposes).
¶ 25 Regarding Mr. Avery’s facial challenge, he has not established that the UUWF statute
could not be validly applied to any defendant. This court has interpreted Bruen in the context of
UUWF and has determined that Bruen does not apply to felons, because the holding was limited
to laws affecting “law-abiding citizens.” See [CITATION]); see also
[CITATION], ¶¶ 27-29 (same). As the UUWF statute could be
validly applied to the defendants in [CITATION], Mr. Avery’s facial challenge to the statute
must also fail. See [CITATION]); see also [CITATION]).
No. 1-23-0606
challenge to the UUWF statute using the reasoning in Baker).
¶ 26 Mr. Avery requests we depart from our holdings in Baker and Mobley, and instead follow
the reasoning in [CITATION], ¶ 89, where we found that a
defendant’s status as a felon is irrelevant under the first step of the Bruen analysis and “is more
properly evaluated under the second step’s historical tradition analysis.” But even if we did follow
Brooks, sufficient historical precedent exists to ban felons from possessing firearms. See [CITATION], ¶¶ 27-33 (finding that the UUWF statute was “consistent with
this nation’s history of preventing potentially dangerous individuals from exercising the right to
bear arms,” and so was facially constitutional).
¶ 27 After this appeal was fully briefed, we granted Mr. Avery’s motion for leave to cite [CITATION], as additional authority. The Supreme Court
in Rahimi held that a federal statute prohibiting individuals subject to domestic violence restraining
orders from possessing firearms was constitutional on its face because “the Second Amendment
permits the disarmament of individuals who pose a credible threat to the physical safety of others.”
[CITATION]. The court in Rahimi rejected the government’s interpretation
that the defendant may be disarmed simply because he was not “responsible.” [CITATION].
¶ 28 Mr. Avery contends that Rahimi supports his contention that the UUWF statute was
unconstitutional because its ban on firearm possession based on felon status, irrespective of
contemporary dangerousness, is inconsistent with the second amendment regulatory tradition. He
also contends that the nine Supreme Court justices rejected the argument that the second
amendment applied only to “law-abiding, responsible” citizens, and this court therefore should
reject the State’s argument that the second amendment permits restrictions aimed at citizens who
No. 1-23-0606
are not “ ‘law-abiding and responsible,’ ” or who are not “ ‘virtuous.’ ”
[SEGMENT 13]
¶ 29 Notwithstanding Mr. Avery’s assertion to the contrary, Rahimi did not reject the view that
the second amendment applies only to “law-abiding, responsible” citizens as Mr. Avery contends.
It merely rejected the government’s contention that a defendant may be disarmed simply because
he was not “responsible,” finding the word vague, and made no mention of the phrase “law-
abiding” whatsoever. The only mention of “law-abiding” is in the Rahimi dissent, which uses the
term in the context of setting forth the government’s argument—“that the Court already held the
Second Amendment protects only ‘law-abiding, responsible citizens,’ ”—which the dissent found
specious. See [CITATION].
¶ 30 Mr. Avery here was not merely “irresponsible,” but had been previously convicted of a
felony, and the Rahimi court confirmed that prohibitions on the possession of firearms by felons
were “presumptively lawful.” [CITATION]. “[W]e do not suggest that the Second
Amendment prohibits the enactment of laws banning the possession of guns by categories of
persons thought by a legislature to present a special danger of misuse.” [CITATION]. Accordingly, Rahimi supports our conclusion that the UUWF statute is constitutional on its
face.
¶ 31 IV. CONCLUSION
¶ 32 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 33 Affirmed.
2024 IL App (2d) 230305-U
No. 2-23-0305
Order filed September 11, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-2125
)
JIMMY M. MARTINEZ, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE KENNEDY delivered the judgment of the court.
Justices Hutchinson and Birkett concurred in the judgment.
ORDER
¶1 Held: Defendant’s second-amendment challenge to the statute criminalizing a felon’s
possession of a firearm fails because (1) the amendment’s protection is reserved for
law-abiding citizens and (2) even if felons fall within the letter of the second
amendment, the challenged statute is valid because it is consistent with our Nation’s
history of firearms regulation, in which there is precedent for disarming groups
deemed potentially dangerous.
¶2 Defendant, Jimmy Martinez, appeals from his convictions of unlawful use or possession of
a weapon by a felon (UUPWF) (720 ILCS 5/24-1.1 (West 2018)). He contends that, under [CITATION], the UUPWF statute on its face 2024 IL App (2d) 230305-U
violates the second amendment to the United States Constitution (U.S. Const., amend II) and, thus,
his convictions must be reversed. We affirm.
¶3 I. BACKGROUND
¶4 On January 9, 2019, defendant was indicted on four felony charges, stemming from an
October 26, 2018, search of his Elgin home pursuant to a search warrant. Count I alleged that
defendant unlawfully possessed with the intent to deliver 15 grams or more but less than 100 grams
of a substance containing cocaine (720 ILCS 570/401(a)(2)(A) (West 2018)). Count II alleged that
defendant unlawfully possessed 15 grams or more but less than 100 grams of a substance
containing cocaine (id. § 402(a)(2)(A)). Count III charged UUPWF and alleged that defendant
knowingly possessed a firearm, “a Ruger 9mm pistol,” after having been previously convicted of
a felony, aggravated unlawful use of a weapon ([CITATION]). Count
IV also charged UUPWF (id.) and alleged that defendant knowingly possessed a firearm, “a Ruger
9mm pistol,” after having been previously convicted of a felony, unlawful possession of a
controlled substance ([CITATION]).
¶5 On December 18, 2020, defendant filed a “Motion to Quash Search Warrant and Suppress
Evidence Illegally Seized,” arguing that the search warrant lacked probable cause. The State filed
a response on April 1, 2021. On February 10, 2022, the trial court denied the motion. Defendant’s
subsequent motion for reconsideration was denied on May 20, 2022.
¶6 On June 1, 2023, the matter proceeded to a stipulated bench trial. The evidence consisted
of two documents, each titled “Joint Stipulation of the Parties,” and various items admitted as
People’s exhibits Nos. 1 through 29. 1
There was no People’s exhibit No. 4. The two stipulations were admitted as People’s
2024 IL App (2d) 230305-U
¶7 The stipulated evidence generally established the following. On October 26, 2018, officers
from the Illinois State Police Swat Team and the North Central Narcotics Task Force (Task Force)
executed a search warrant for defendant’s person and an Elgin apartment. Defendant was found in
the apartment, given a copy of the search warrant, and read his Miranda warnings (see [CITATION]) by Task Force Master Sergeant Backus. During the search, the
officers recovered (1) a clear plastic bag containing 32.2 grams of cocaine (People’s exhibit No. 1),
(2) four clear, knotted plastic bags weighing a combined 2.41 grams and containing suspected
(untested) cocaine (People’s exhibit No. 2), (3) a clear plastic bag weighing 2.31 grams and
containing suspected (untested) cocaine (People’s exhibit No. 3); (4) a Ruger 9-millimeter pistol
(People’s exhibit No. 5), (5) a loaded magazine found inside the Ruger 9-millimeter pistol
(People’s exhibit No. 6), (6) a black Apple iPhone (People’s exhibit No. 7), (7) a digital scale with
white powder residue (People’s exhibit No. 8), (8) an LG flip phone (People’s exhibit No. 9),
(9) 9-millimeter ammunition (People’s exhibit No. 10), (10) vehicle documentation belonging to
defendant (People’s exhibit No. 11), and (11) an insurance letter addressed to defendant (People’s
exhibit No. 12). People’s exhibit Nos. 13-28 were photographs taken at the scene, showing, among
other things, the foregoing items before collection. Also pictured was $1315 in U.S. currency
recovered from a bedroom dresser.
¶8 Edward McGill, a forensic scientist at the Illinois State Police Rockford Crime Laboratory,
would testify that, although People’s exhibit Nos. 2 and 3 were not tested for the presence of a
controlled substance, the contents of each exhibit were consistent in physical appearance with
People’s exhibit No. 1 and, in his opinion, contained cocaine.
exhibit Nos. 30 and 31.
2024 IL App (2d) 230305-U
¶9 Backus would testify that, while escorting defendant to a squad car, defendant stated that
he lived alone at the apartment. Task Force Inspector Neamand would testify that, while
transporting defendant to the police department, defendant told Neamand that he lived alone in the
apartment but that his mother was the leaseholder. Later, Neamand and Task Force Inspector
Young interviewed defendant. Neamand and Young would testify that defendant admitted to
possessing the cocaine and the Ruger pistol but denied “sell[ing] drugs.”
¶ 10 Young, an expert “in the field of cannabis, cocaine, and drug trafficking,” would testify
that, in his opinion, defendant possessed the cocaine with the intent to deliver it. Young’s opinion
was based on (1) the amount of the cocaine, (2) the nature of the packaging, (3) the digital scale,
(4) the two cellular phones, (5) the $1315 in U.S. currency, (6) the loaded firearm, and (7) the
absence of “cocaine user paraphernalia.”
¶ 11 The stipulations further provided that, on October 26, 2018, (1) defendant had a previous
felony conviction of aggravated unlawful use of a weapon ([CITATION]); (2) defendant had a previous felony conviction of unlawful possession of a controlled
substance ([CITATION]); (3) defendant did not possess, and was not
eligible to obtain, a valid Firearm Owners Identification (FOID) card; and (4) the firearm
recovered was a “firearm” as defined by section 1.1 of the Firearm Owners Identification Card Act
(FOID Card Act) ([CITATION]).
¶ 12 After the State rested, defendant indicated that he did not wish to present evidence but that
[SEGMENT 14]
the stipulations should not be considered a waiver of his argument that the search warrant lacked
probable cause.
¶ 13 The trial court found defendant guilty of all counts and set the matter for sentencing.
2024 IL App (2d) 230305-U
¶ 14 On September 11, 2023, defendant filed a motion for a new trial. Defendant argued that
the trial court erred in denying defendant’s motion to quash the search warrant and his subsequent
motion to reconsider.
¶ 15 On September 13, 2023, the trial court denied defendant’s motion for a new trial. Following
a sentencing hearing, the court merged count II into I and count IV into count III. It sentenced
defendant to seven years each on counts I and III, to run concurrently.
¶ 16 This timely appeal followed.
¶ 17 II. ANALYSIS
¶ 18 Defendant contends that, under the analysis recently established by the Supreme Court in
Bruen, the UUPWF statute is facially unconstitutional because it violates a felon’s second
amendment right to keep and bear arms. The State responds that the UUPWF statute is not
unconstitutional under Bruen, because the plain text of the second amendment does not apply to
convicted felons and, even if it did, historical analysis supports a tradition that allows for statutes
dispossessing felons of firearms. We agree with the State.
¶ 19 In considering the issue, we keep the following well-established principles in mind. “A
statute is presumed constitutional, and the party challenging the statute bears the burden of
demonstrating its invalidity.” [CITATION]. “A party raising a
facial challenge to a statute faces a particularly heavy burden.” [CITATION]. “A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid.” Id. “We have a duty to construe the statute
in a manner that upholds the statute’s validity and constitutionality, if it can reasonably be done.”
[CITATION]. The constitutionality of a statute is a question of law,
which we review de novo. [CITATION].
2024 IL App (2d) 230305-U
¶ 20 The UUPWF statute (720 ILCS 5/24-1.1(a) (West 2018)) provides in relevant part:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
-1 of this Act or any firearm or any firearm ammunition if the person has been convicted
of a felony under the laws of this State or any other jurisdiction. This Section shall not
apply if the person has been granted relief by the Director of the Department of State Police
under Section 10 of the [FOID Card Act].[Footnote omitted.]”
The second amendment provides: “A well-regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend II.
¶ 21 We begin with a review of the relevant Supreme Court decisions. In [CITATION], the Supreme Court declared for the first time that the second
amendment right to keep and bear arms is an individual right rather than a collective right. In
[CITATION], the Court struck down a series of District of Columbia laws that banned handgun
possession in the home and required other types of firearms to be kept unloaded and disassembled
or bound by a trigger lock or similar device. Id. at 575, 635. The Court held that the laws violated
the second amendment’s protection of “the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.” (Emphasis added.) Id. The Court noted, however, that “the right
secured by the Second Amendment is not unlimited.” Id. at 626. The Court admonished that
“nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill[.]” Id.
¶ 22 Two years later, in [CITATION], the Court held that the second amendment’s “right to keep and bear arms for the purpose of self-defense”
====== End of Document ====== 2024 IL App (2d) 230305-U
applied to the States through the fourteenth amendment (U.S. Const. amend. XIV). Further, it
struck down laws enacted by the City of Chicago and a Chicago suburb similar to those in Heller.
[CITATION] at 750. In so holding, the Court stated: “We made it clear in Heller that our holding did not cast
doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by
felons and the mentally ill[] ***.’ [CITATION] We repeat those assurances here.” [CITATION] at 786.
¶ 23 In 2022, the Supreme Court decided [CITATION]. The issue in [CITATION] was whether “ordinary,
law-abiding citizens have a *** right to carry handguns publicly for their self-defense.” (Emphasis
added.) [CITATION], 597 U.S. at 9. The Court held that, “consistent with Heller and [CITATION], *** the
Second and Fourteenth Amendments” protect such a right. [CITATION] at 10. Thus, it struck down New
York’s licensing laws that conditioned the issuance of public-carry licenses on a showing of a
special need. [CITATION] at 11.
¶ 24 In deciding the issue, the [CITATION] Court recognized that, following [CITATION], “the Courts of
Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment
challenges that combines history with means-ends scrutiny.” [CITATION] at 17. At the first step, the
government could justify the firearm restriction by demonstrating that the impacted activity fell
outside the scope of the second amendment as originally understood. [CITATION] at 18. If the government
proved that the regulated activity fell beyond the amendment’s original scope, the court would
uphold the regulation without further analysis. [CITATION] If, however, it was unclear that the activity was
unprotected, the court would proceed to the second step, in which the court would weigh the
severity of the firearm regulation—the means—against the ends the government sought to achieve.
[CITATION] The level of scrutiny would depend on how close the regulation came to the core of the second
amendment. [CITATION]
2024 IL App (2d) 230305-U
¶ 25 The Bruen Court “decline[d] to adopt” this framework, noting that “Heller and McDonald
do not support applying a means-end scrutiny in the Second Amendment context.” Id. at 19.
Instead, the Bruen Court set forth the following test for assessing the validity of statutes under the
second amendment:
“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. To justify its regulation, the government
may not simply posit that the regulation promotes an important interest. Rather, the
government must demonstrate that the regulation is consistent with this Nation’s historical
tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s
historical tradition may a court conclude that the individual’s conduct falls outside the
Second Amendment’s ‘unqualified command.’ ” [CITATION].
Thus, under Bruen, the court must first ask whether the second amendment’s “plain text” covers
an individual’s conduct. [CITATION]. If it does, the question becomes whether the challenged statute is
“consistent with this Nation’s historical tradition of firearm regulation.” [CITATION].
¶ 26 After briefing in this case was complete, the Court decided [CITATION], which reaffirmed the Bruen test and emphasized
that “Heller never established a categorical rule that the Constitution prohibits regulations that
forbid firearm possession in the home.” [CITATION]. “In fact,” the Court noted, “Heller stated that
many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’
are ‘presumptively lawful.’ ” [CITATION]. The Court in [CITATION]
rejected a facial challenge to a federal statute (18 U.S.C. § 922(g)(8)) that prohibited firearm
possession by a person subject to a domestic-violence restraining order that protected an intimate
2024 IL App (2d) 230305-U
partner or the partner’s child. Id. *4, 5. The Court held that the statute was not facially invalid
given that one of the bases for prohibiting firearm possession by the subject of the order was that
he or she presented a credible threat to the physical safety of the intimate partner or the partner’s
child. Id. *7 (citing 18 U.S.C § 922(g)(8)(C)(i)). For reasons not apparent, the Court did not apply
the first part of the Bruen test but considered only whether the statute was consistent with the
Nation’s history of firearms regulation. Id. *10. After reviewing historical analogs of the statute,
the Court found that “[o]ur tradition of firearm regulation allows the Government to disarm
individuals who present a credible threat to the physical safety of others.” Id. The Court concluded:
[SEGMENT 15]
“An individual found by a court to pose a credible threat to the physical safety of another may be
temporarily disarmed consistent with the Second Amendment.” Id. *11.
¶ 27 Defendant’s challenge to the UUPWF statute fails at the first step of the Bruen analysis
because, contrary to defendant’s assertion, felons are not included in “the people” to whom the
second amendment refers.
¶ 28 We find instructive [CITATION]. In [CITATION], the defendant argued that the UUPWF statute,
as applied to him, was unconstitutional under the framework announced in Bruen. Id. ¶¶ 33, 37.
The First District concluded that defendant could not mount a second-amendment challenge to the
statute because “[CITATION] just [did] not apply to him,” given his status as a felon. Id. ¶ 37. The court
explained:
“The [CITATION] Court could not have been more clear that its newly announced test applied
only to laws that attempted to regulate the gun possession of ‘law-abiding citizens,’ and
not felons like defendant. [CITATION] (the holding was
limited to laws affecting ‘law-abiding citizens’). Just in case a reader missed the first time
2024 IL App (2d) 230305-U
that the court said it, the court repeated it 18 times. [CITATION]
passim (the six justices in the majority repeated the phrase ‘law-abiding’ 18 times in their
majority opinion and their concurrences). Further, Justice Kavanaugh in his concurrence
quoted an earlier case that stated: ‘ “[N]othing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons ***.” ’ [CITATION]
(Kavanaugh, J., concurring, joined by Roberts, C.J.)
(quoting [CITATION]). Justice Kavanaugh’s concurrence
was joined by Chief Justice Roberts, and they both joined the six-justice majority opinion.
Based on the plain, clear, and repeated language of the justices in the majority, defendant
is simply outside the box drawn by [CITATION]
¶ 29 As the State notes, we have recently issued two unpublished decisions that similarly
rejected Bruen-based challenges to the UUPWF statute by agreeing with [CITATION] and holding that
felons are not a part of “the people” in the plain text of the amendment. 2 See [CITATION] (“As defendant does not dispute that he is a convicted felon for purposes of the [UUPWF]
statute, he is not a ‘law-abiding’ citizen afforded the same second amendment protections enjoyed
by ‘the people’ referenced in the second amendment.”); [CITATION] (“We *** hold
that ‘the people’ referenced in the second amendment are law-abiding citizens.”). In addition, in
[CITATION]
Orders issued under Illinois Supreme Court Rule 23(b) (eff. Feb. 1, 2023) on or after
January 1, 2021, “may be cited for persuasive purposes.” Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023).
- 10 -
===== 2024 IL App (2d) 230305-U
(filed Jan. 24, 2024), we similarly rejected a second amendment challenge under Bruen to the
armed habitual criminal (AHC) statute (720 ILCS 5/24-1.7 (West 2020)): “[A]s defendant
concedes that he is a repeat convicted felon for purposes of the [AHC] statute, he is not a ‘law-
abiding’ citizen afforded the same second amendment protections enjoyed by ‘the people’
reference in the second amendment.”
¶ 30 We agree with [CITATION] and our previous decisions. As we noted in [CITATION]:
“[T]he clear implication of Bruen is that ‘the people’ referenced in the second amendment
are ‘law-abiding’ citizens. See, e.g., [CITATION] (‘Congress did not violate [the defendant’s rights] by enacting § 922(g)(1) [(18
U.S.C. § 922(g)(1) (2020) (the federal unlawful-possession-of-a-weapon-by-a-felon
statute)]. He is not a law-abiding citizen, and history supports the authority of Congress to
prohibit possession of firearms by persons who have demonstrated disrespect for legal
norms of society.’); [CITATION] (‘Courts in this jurisdiction and elsewhere have relied on the focus in [Bruen, McDonald,
and Heller] on the rights of “law-abiding” citizens to hold that the government may,
consistently with Bruen[,] disqualify convicted felons from exercising the rights the
Second Amendment guarantees.’); [CITATION] (‘The Supreme Court notes throughout its decisions that the
challenging parties are “law-abiding” citizens. The implication is clear: the reach of Bruen
ends at the feet of those individuals who are not law-abiding citizens.’); [CITATION] (‘The bottom line is [the
defendant’s] status as a felon removes him from “the people” enumerated in the Second
Amendment.’); [CITATION] (quoting
- 11 - 2024 IL App (2d) 230305-U
Heller, 554 U.S. at 635) (noting that the right secured by the second amendment ‘extends
only to “the people,” which encompasses only “law-abiding, responsible” citizens who
keep or bear arms for “lawful purposes.” ’); [CITATION] (‘By distinguishing non-law-abiding citizens from law-abiding ones,
the [dicta] in Heller and McDonald clarifies the bounds of the plain text of the Second
Amendment. This, coupled with the majority’s focus in Bruen on the Second Amendment
rights of “law-abiding citizens” throughout the opinion convinces this Court that the
Supreme Court would conclude that these statutes fail to infringe on any Second
Amendment rights.’).” [CITATION], ¶ 153.
¶ 31 Further, we note that several published Illinois decisions have similarly concluded that the
second amendment protects the rights of only law-abiding citizens. See [CITATION], ¶ 22 (rejecting the defendant’s facial challenge to the AHC statute, stating that
“Bruen is clear that second amendment rights apply to law-abiding citizens for self-defense”);
[CITATION], ¶ 21 (rejecting the defendant’s constitutional
challenge to the UUPWF statute, holding that “Bruen simply does not apply to [the] defendant.
The second and fourteenth amendments protect the right of ‘law-abiding citizens’ to possess
handguns”); [CITATION], ¶¶ 56, 59, pet. for leave to appeal
pending, No. 130078 (filed May 22, 2024) (rejecting the defendant’s facial challenge to the
aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1)(3)(A-5)(C), (I) (West
2018)), which criminalizes possession of a weapon under certain circumstances without a valid
license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2018)) or a valid
FOID card, noting that “Bruen expressly and repeatedly limits the second amendment’s scope to
law-abiding citizens”); [CITATION], ¶¶ 28, 29, pet. for leave to
- 12 - 2024 IL App (2d) 230305-U
appeal pending, No. 130417 (filed Jan. 31, 2024) (where the record showed that the defendant had
“at least 14 felony convictions, including convictions for violent crimes,” the defendant could not
challenge under Bruen the UUPWF statute as applied to him because “Bruen strongly suggests the
test only applies when a regulation impacts a law-abiding citizen’s ability to keep and bear arms”).
¶ 32 Numerous unpublished Illinois decisions have read the second amendment’s text similarly.
See [CITATION] (rejecting the defendant’s constitutional challenge to the UUPWF statute,
holding that “Bruen does not apply to [the] defendant, as the second and fourteenth amendments
protect the right of ‘law-abiding citizens’ to possess handguns”); [CITATION] (rejecting
the defendant’s facial and as-applied challenges to the AHC statute because the “defendant’s
previous felony convictions make him not a law-abiding citizen and, therefore, not protected by
the second amendment” (emphases in original)); [CITATION]
(rejecting the defendant’s facial constitutional challenge to the UUPWF statute, finding “nothing
in [the] defendant’s arguments to persuade [the court] to believe Bruen does not apply to felons
simpliciter[.]”); [CITATION] (relying on Baker and rejecting the defendant’s
facial and as-applied challenges to the UUPWF statute, holding that his status as a felon removed
him from the first step of the Bruen analysis); [CITATION]
(“In Heller, McDonald, and Bruen, the Supreme Court made clear that felons are not, and have historically not been,
[SEGMENT 16]
categorically protected by the second amendment as ‘law-abiding citizens.’ ”); [CITATION]
- 13 - 2024 IL App (2d) 230305-U
[CITATION], ¶ 16, pet. for leave to appeal pending, No. 130220 (filed Nov. 20,
2023) (rejecting the defendant’s constitutional challenge to the UUPWF statute because “the Bruen
decision does not apply to felons”).
¶ 33 We recognize that one panel of the First District, in considering the constitutionality of the
UUPWF statute, has held that felon status is “irrelevant” at the first stage of the Bruen analysis
and, thus, even a felon’s possession of a firearm is “ ‘presumptively constitutional.’ [Citation.].”
See [CITATION], ¶ 89, pet. for leave to appeal pending,
No. 130153 (filed Oct. 30, 2023). One panel of the Third District adopted [CITATION]’ reasoning when
considering facial and as-applied constitutional challenges to the AHC statute and the UUPWF
statute. See [CITATION], ¶ 26, pet. for leave to appeal pending, No.
130696 (filed May 16, 2024).
¶ 34 We decline to follow [CITATION]’ reasoning as to the first step of the Bruen analysis. 3 Instead,
we join the great weight of authority in Illinois and agree that the second amendment does not
apply to a felon’s firearm possession.
¶ 35 Even if we presumed that a felon’s firearm possession is covered under the plain text of
the second amendment, defendant’s challenge to the UUPWF statute would fail under Bruen’s
We note that both [CITATION] and [CITATION] upheld the challenged statutes under the second stage
of the Bruen analysis. See [CITATION], ¶ 105 (“[W]e conclude that the
legislature’s ability to impose status-based restrictions disqualifying certain categories of people
from possessing firearms is consistent with the national historical tradition of firearm regulation.”);
[CITATION], ¶ 33 (“[W]e conclude there is a history and tradition dating
back to the founding era of identifying dangerous individuals and disarming them.”)
- 14 - 2024 IL App (2d) 230305-U
second step, which asks whether the state can demonstrate that the UUPWF statute “is consistent
with the Nation’s historical tradition of firearm regulation.” [CITATION] Defendant
contends that there is no historical tradition of firearms regulation that supports a “flat ban” on
firearm possession by convicted felons. We disagree.
¶ 36 Despite our disagreement with Brooks’ conclusion that felons are covered under the plain
text of the second amendment, we nevertheless find particularly instructive Brooks’ analysis on
the issue of whether the UUPWF statute is consistent with the Nation’s historical tradition of
firearm regulation.
¶ 37 In [CITATION], the court considered an as-applied challenge to the AHC statute. [CITATION] The Brooks court summarized as follows the State’s burden under
Bruen’s second step:
“To carry this burden, the government must point to ‘historical precedent from
before, during, and even after the founding [that] evinces a comparable tradition of
regulation.’ [CITATION] Noting that ‘when it comes to interpreting the Constitution, not all
history is created equal,’ the Court made clear that the relevant inquiry centers on what the
founders understood the second amendment to mean. [CITATION] In other words, the Court
clarified that in looking to historical context, the most relevant time period is that of the
amendment’s enactment (in 1791). [CITATION] [Footnote omitted.]
In directing courts to canvass historical periods for context, the Court
acknowledged that the task would not always be ‘straightforward,’ particularly when it
involved ‘unprecedented societal concerns or dramatic technological changes.’ [CITATION]
Noting that in such circumstances ‘a more nuanced approach’ was necessary, the Court
instructed lower courts to seek out similar regulations and to reason by analogy. [CITATION]
- 15 - 2024 IL App (2d) 230305-U
As the Court explained, it is not necessary to identify a ‘historical twin’; rather a ‘well-
established and representative [historical] analogue will do.’ (Emphasis in original.)
[CITATION.]
The Court further clarified that ‘analogical reasoning’ under the second amendment
should not be ‘a regulatory straitjacket nor a regulatory blank check.’ [CITATION.] As such,
‘courts should not “uphold every modern law that remotely resembles a historical
analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have
accepted.” ’ [CITATION.] However, ‘even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass constitutional muster.’
[CITATION.] The core question is whether the challenged regulation and the proffered
analogue are ‘relevantly similar.’ [CITATION.]
The Court then clarified two metrics to be used in comparing the government's
proffered analogues against the challenged law, namely: (1) how the challenged law
burdens the right to bear arms; and (2) why the law burdens that right. [CITATION.] In short,
the Court explained that the proper inquiry turns on whether the ‘modern and historical
regulations imposes a comparable burden on the right of armed self-defense, and ***
whether that burden is comparably justified.’ [CITATION.]” [CITATION.]
¶ 38 The Brooks court engaged in an extensive historical analysis dating back to 17th century
England and ultimately concluded that “there is a historical tradition of legislatures exercising their
discretion to impose status-based restrictions disarming entire categories of persons who, based on
their past conduct, were presumed unwilling to obey the law.” (Internal quotations omitted.) [TARGET CITATION.]
¶ 97. “While the particular groups varied over time, the founders understood that felons were one
such group.” [TARGET CITATION.]
- 16 - 2024 IL App (2d) 230305-U
¶ 39 The court began by noting that, in 17th Century England, the government “repeatedly
disarmed individuals whose conduct reflected that they could not be trusted to abide by the
sovereign and [his] dictates.” (Internal quotations omitted.) [CITATION] ¶ 93. Those disarmed included,
first, “non-Anglican Protestants who refused to participate in the Church of England and those
who were dangerous to the Peace of the Kingdom” and, later, “Catholics who refused to renounce
their faith.” (Internal quotations omitted.) [CITATION]. The court noted that, later, “[i]n colonial America,
legislatures continued to disarm individuals whose status indicated that they could not be trusted
to obey the law.” [CITATION] ¶ 94. “As such, Native Americans, and other minority groups, like Catholics
in Maryland and Pennsylvania were banned from owning firearms.” [CITATION]. The court next noted that,
“during the Revolutionary War, the Continental Congress, Massachusetts, Virginia, Pennsylvania,
Rhode Island, North Carolina, and New Jersey prohibited possession of firearms by people who
refused to swear loyalty oaths.” [CITATION].
¶ 40 The Brooks court further noted that “[f]ounding-era criminal punishments also demonstrate
the widespread acceptance of the legislature’s authority to disarm felons.” [CITATION] ¶ 96. For instance,
even for some nonviolent crimes such as deceit, forgery, and wrongful taking of property, the
punishment included death or forfeiture of a person’s entire estate (which the Brooks court
presumed included firearms). [CITATION]. “Even some non-capital offenses triggered the permanent loss of
an offender’s estate, including any firearms.” [CITATION]. An example was a 1786 New York statute that
punished individuals who counterfeited state bills of credit with life imprisonment and the
complete forfeiture of their estate (which, again, included firearms). [CITATION]. As one court has observed,
“if someone was subject to death and forfeiture of their entire estate then such laws would have
also foreclosed individuals from their right to keep and bear arms.” [CITATION]. “As a matter of logic and experience, it makes sense
- 17 - 2024 IL App (2d) 230305-U
that these extensive and exhaustive penalties for felonies—outright capital punishment and the
forfeiture of all property—qualify as powerful evidence that mere firearms dispossession of felons
is a ‘comparable burden’ as Bruen frames the standard *** to historical punishments for felonies.”
[CITATION].
¶ 41 While Brooks’ historical survey uncovered no law that specifically prohibited felons from
owning firearms, Brooks did cite laws that were persuasive analogs to the UUPWF statute. As the
federal district court reasoned in [CITATION] the English disarmament laws “are relevant analogues to the [federal]
felon dispossession statute, because they disarmed groups ‘based on their perceived potential
disobedience to the law (or sovereign).’ ” In addition, the Colonial and Revolutionary-era laws are
[SEGMENT 17]
evidence that, “ ‘by the time of the Second Amendment’s ratification in 1791, there already was a
historical tradition of legislatures disarming persons based on the perception (sometimes odious
perceptions) that certain groups could not be trusted to be abide [by] the law or sovereign.’ ” Id.
*11 (quoting Agee, *9).
¶ 42 Here, the State relies specifically on the “surety statutes” of the mid-19th century as
analogous to the UUPWF statute. The surety statutes “required certain individuals to post bond
before carrying weapons in public.” Bruen, 597 U.S. at 55. In [CITATION],
The decisions of federal district courts may be considered as persuasive authority. Home
[CITATION].
- 18 - 2024 IL App (2d) 230305-U
district court found that the surety statutes were analogous to the federal unlawful possession-of-
a-firearm-by-a-felon statute (18 U.S.C. § 922(g)(1)), stating:
“[The] [surety] statutes presumed a right to ‘carry [a firearm] that [could] be burdened only
if another could make out a specific showing of “reasonable cause to fear an injury, or
breach of the peace.” ’ [CITATION] (quoting Mass. Rev. Stat., ch. 134 § 16 (1836)). *** [T]he
Second Amendment also begins with a presumption that the individual has the right to
carry. However, § 922(g)(1) burdens this right just as the surety statutes did nearly two
hundred years ago. Over 65% of prisoners in the United States will be arrested again within
three years of their release and over 80% within nine years of their release. [CITATION] Thus,
felons clearly fall within a category of people who are not only reasonably believed to, but
also probable to cause an injury or breach of the peace. Although surety statutes did not
disarm citizens, the statutes did burden the right guaranteed by the Second Amendment in
a similar fashion.”
¶ 43 As noted, the Court in [CITATION] also reviewed the history of firearms regulation in England
and early America. See [CITATION], 2024 WL 3074728, *7-10. The Court observed that,
“[f]rom the earliest days of the common law, firearms regulations have included provisions barring
people from misusing weapons to harm or menace others.” [CITATION] *7. “By the 1700s and early 1800s,
*** two distinct legal regimes had developed that specifically addressed firearms violence.” [CITATION]
These were the surety statutes and the “ ‘going armed’ ” statutes. [CITATION] The latter “provided a
mechanism for punishing those who had menaced others with firearms.” [CITATION] These two sets of
laws, the Court concluded, “confirm what common sense suggests: When an individual poses a
clear threat of physical violence to another, the threatening individual may be disarmed.” [CITATION]
- 19 - 2024 IL App (2d) 230305-U
¶ 44 Thus, even though there is no “historical twin” for the UUPWF statute, “there is evidence
that categorical bans are permissible and that individuals that have been deemed dangerous, non-
law abiding, or even reasonably likely to breach the peace may have their right to keep and bear
arms restricted.” [CITATION].
¶ 45 Defendant contends, however, that “the historical record does not support Illinois’ flat ban
on the possession of firearms by a convicted felon,” but his arguments are not persuasive. First, he
argues that the history of gun regulation demonstrates that most restrictions were based on
dangerousness, not criminal history or status. However, contrary to defendant’s argument, the
status-based restrictions were based not on individualized assessments of dangerousness, but “on
a conclusion that the category as a whole presented an unacceptable risk of danger if armed.” See
[CITATION]. Indeed, “[n]ot all persons disarmed under historical precedents—not all
Protestants or Catholics in England, not all Native Americans, not all Catholics in Maryland, not
all early Americans who declined to swear an oath of loyalty—were violent or dangerous persons.”
Id.
¶ 46 Defendant also argues that the status-based restrictions were temporary or easily
removable. For instance, he asserts that, in the case of Protestant monarchs prohibiting Catholics
from possessing firearms unless they swore an oath of loyalty and renounced their papism, a person
could remove the disability by appearing before a justice of the peace and swearing oaths of
allegiance to the King. However, as the State notes, an individual prohibited from possessing a
firearm under the UUPWF statute may analogously obtain relief under section 10(c) of the FOID
Card Act (430 ILCS 65/10 (West 2020)) by submitting a petition showing
“(1) the applicant has not been convicted of a forcible felony under the laws of this State
or any other jurisdiction within 20 years of the applicant’s application for a Firearm
- 20 - 2024 IL App (2d) 230305-U
Owner’s Identification Card, or at least 20 years have passed since the end of any period
of imprisonment imposed in relation to that conviction; (2) the circumstances regarding a
criminal conviction, where applicable, the applicant’s criminal history and his reputation
are such that the applicant will not be likely to act in a manner dangerous to public safety;
(3) granting relief would not be contrary to the public interest; and (4) granting relief would
not be contrary to federal law.”
See [CITATION], 2021 IL 125513, ¶ 35 (“The legislature clearly
intended for felons to be able to obtain relief under section 10 of the FOID Card Act [(see 430
ILCS 65/10 (West 2020))]. Section 24-1.1(a)’s prohibition on the possession of weapons by felons
says that it does not apply if the person has been granted relief under section 10 of the FOID Card
Act. We do not believe that the legislature’s intent was to create such a right and then make it
impossible for anyone to obtain relief.”). Although defendant argues that applying for
reinstatement of the right to possess a firearm under this provision is akin to the “special need”
provision struck down in Bruen, that case is distinguishable. There is a crucial difference between
the government (1) applying its discretion to enable a law-abiding citizen to exercise the right to
possess a firearm and (2) applying its discretion to reinstate a law-breaking citizen’s right to
possess a firearm.
¶ 47 Finally, defendant directs our attention to three “founding-era proposals” that were
ultimately not incorporated into the second amendment. In one proposal, a majority of the New
Hampshire convention suggested that the bill of rights limit the right to bear arms to those who
had not engaged in “ ‘actual rebellion.’ ” See [CITATION], 919 F.3d 437, 454 (2019) (Barrett,
J., dissenting) (quoting 1 Jonathan Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 326 (2d ed. 1891)). In the Massachusetts convention, Samuel
- 21 - 2024 IL App (2d) 230305-U
Adams proposed that only “ ‘peaceable citizens’ ” have the right to bear arms. [CITATION] (quoting 2
Benard Schwartz, The Bill of Rights: A Documentary History 675, 681 (1971)). In the
Pennsylvania convention, the influential Pennsylvania minority suggested that the citizens’ right
to bear arms not be infringed “ ‘unless for crimes committed, or real danger of public injury from
[the] individuals.’ ” [CITATION] (quoting 2 Schwartz, at 662, 665). Defendant cites then-Judge
Barrett’s comment, in dissent, that “[t]he concern common to all three [proposals] is not about
felons in particular or even criminals in general; it is about threatened violence and the risk of
public injury.” [CITATION] Thus, according to defendant, the proposals do not support the notion of a
blanket disarmament of felons.
¶ 48 However, as defendant notes, none of the proposals were incorporated into the second
amendment. It can be argued that this was because limitations on the rights of felons to keep and
bear arms were understood. Recently, in [CITATION], the court observed that the existence of the
proposals supports “the proposition that it was ‘ “ ‘obvious’ ” to the Founders that persons who
committed crimes would properly be subject to disarmament laws.’ ” [CITATION] (quoting [CITATION], citing
Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 273
(2008) (explaining that the Founders “did not object to the lack of an explicit exclusion of criminals
from the individual right to keep and bear arms” during the debates over “what became the Second
Amendment,” because this limitation “was understood”)). We agree with that reasoning.
¶ 49 In sum, defendant’s challenge to the UUPWF statute fails under the Bruen analysis because
[SEGMENT 18]
felons, who are not law-abiding citizens, are not afforded the same second amendment protections
enjoyed by “the people” referenced therein. Further, even if the text of the second amendment was
- 22 - [CITATION]
to be construed as presumptively protecting felons, the UUPWF statute is consistent with this
Nation’s historical tradition of firearms regulation.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 52 Affirmed.
- 23 -
====== End of Document ======
2024 IL App (1st) 231008-U
SECOND DIVISION
September 10, 2024
No. 1-23-1008
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 22 CR 02900
)
SHAQUILLE WHITEHEAD, ) Honorable
) Angela Munari Petrone,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court of Cook County convicting defendant
of armed habitual criminal (AHC); the trial court did not consider facts not in evidence or
abandon its role as neutral arbiter to deny defendant a fair trial; the evidence was
sufficient to prove defendant’s guilt beyond a reasonable doubt; and the AHC statute is
constitutional under the United States and Illinois constitutions.
¶2 The State charged defendant, Shaquille Whitehead, with armed habitual criminal (AHC),
unlawful use of a weapon by a felon, and three counts of aggravated unlawful use of a weapon.
Following a bench trial, the circuit court of Cook County found defendant guilty of AHC and
UUWF. The court merged the conviction for UUWF into the conviction for AHC and sentenced
defendant to six years’ imprisonment for AHC. Defendant appeals the conviction on the grounds
(1) the trial court denied defendant a fair trial by considering facts not in evidence and
abandoning its role as neutral arbiter of the facts and adopting the role of prosecutor, (2) the State 1-23-1008
failed to prove him guilty of every element of the offense of AHC beyond a reasonable doubt,
and (3) the AHC statute is unconstitutional on its face and as applied to defendant under both the
United States Constitution and Illinois Constitution.
¶3 For the following reasons, we affirm.
¶4 BACKGROUND
¶5 The charges against defendant arose from a traffic stop of a vehicle defendant was
driving with one passenger. The State called one of the officers who stopped defendant’s vehicle
as its only live witness at defendant’s bench trial. The State also submitted into evidence footage
from the testifying officer’s body worn camera and the footage from the body worn camera of
one of the other officers involved in the traffic stop, but the second officer did not testify.
¶6 Officer Axel Gallardo of the Chicago Police Department testified that on February 9,
2022, he and his partner, Officer Rojas Yesenia, conducted a traffic stop. Officer Gallardo
approached the passenger side of the vehicle and his partner approached the driver’s side of the
vehicle. Officer Gallardo observed two people in the vehicle. He identified defendant as the
driver. Defendant did not have a valid driver’s license and the officers decided to tow the
vehicle. At that time, defendant was already out of the vehicle. Officer Gallardo asked the
passenger to exit the vehicle but the passenger did not immediately exit the vehicle. Officer
Yesenia recovered a loaded handgun from the pocket of a jacket the passenger was wearing.
Officers eventually removed the passenger from the vehicle and placed him into custody.
¶7 Officer Gallardo testified that after police placed the passenger into custody they
conducted an inventory search of the vehicle. During the inventory search, police found a firearm
“In the middle of the backseat on top of a child’s car seat.” The car seat was in the middle of the
backseat of the vehicle. Officer Gallardo testified he did not see the gun immediately because
1-23-1008
there was a blanket on top of the firearm. There was nothing else on top of the firearm other than
the blanket. Officer Gallardo removed “a laundry basket, clothes, and the blanket” before he
recovered the gun. The gun was loaded, it had an extended magazine, and it had a laser sight.
¶8 Officer Gallardo testified that at the time of the traffic stop he was wearing a body worn
camera. The State published the footage of the traffic stop from Officer Gallardo’s body worn
camera to the trial court without objection. Officer Gallardo verbally described his actions.
Officer Gallardo testified that he was searching the vehicle defendant had been driving. He
removed a plastic bag containing clothes. He recovered the firearm. Officer Gallardo testified he
recovered the firearm “On the child’s car seat. On top of the child’s car seat.” He pointed out the
exact area of the car seat where he recovered the firearm. The State asked that the record reflect
“that the officer pointed on the car seat.” The trial court asked the officer to point again and the
court clarified that the officer “pointed to an area that’s kind of reddish or pink on the car seat
which is to the left of the white basket as one is looking at the [image.]” The court asked if the
officer recovered the firearm “from the top of that which is now gray or black ***?” Officer
Gallardo identified the side of the car seat. The court asked, “Where did you recover it?” The
officer responded, “Where the child usually sits.” The court stated, “Oh, on the seat. That’s on
top of where the pink or red color is?” and the officer responded, “Yes.” The State stopped the
recording.
¶9 Officer Gallardo testified that he spoke to defendant with his partner present. The officer
read defendant his Miranda rights, after which he asked defendant who was the registered owner
of the vehicle. The officer testified that defendant stated the registered owner was his sister. The
officer testified that defendant also stated that “he came back from doing laundry” at the
laundromat, “and he said that he had no knowledge of the firearm.”
1-23-1008
¶ 10 Upon further examination by the State, Officer Gallardo testified there were two people
in the vehicle and no one was seated in the backseat. The State asked the officer to “describe
how the blanket was placed over the gun.” The officer testified, “It looks like the blanket was
placed over the gun.” The blanket was partially folded. When asked what he meant by “partially”
the officer testified, “It looks like it was just thrown into the car seat ***.” The firearm was
within arm’s reach of where defendant was seated and there was nothing else covering the
firearm besides the blanket.
¶ 11 On cross-examination, Officer Gallardo testified that defendant was being cooperative
with Officer Yesenia. When asked to exit the vehicle defendant did so. Officer Gallardo admitted
that the passenger was also within arm’s reach of the firearm recovered from the backseat of the
vehicle. The passenger did not get out of the car when asked and officers eventually had to
physically remove the passenger from the vehicle. Officer Gallardo agreed he had no way of
knowing how long the firearm was in the car seat or how long the passenger or defendant were in
the car. Officer Gallardo testified defendant told him he was coming back from doing laundry
and the officer found a bag of laundry and a laundry basket in the car. The bag of laundry and the
laundry basket were not on top of the firearm. Officer Gallardo had no idea how long the blanket
had been there.
¶ 12 The State did not perform a redirect examination and asked that the officer be excused.
The trial court asked the defense if it needed the officer to stay and the defense stated it had no
objection to the officer being excused. The trial court initially excused the officer, but then stated
the court had “a couple of questions of the officer.” The officer retook the stand and the court
asked the officer what type of handgun he found. The officer responded, “It’s and FN firearm.”
The officer could not recall what the abbreviation “FN” meant or the caliber of the firearm. The
1-23-1008
State refreshed the officer’s memory with his case report, and the officer testified that, “It’s an
FN 509, nine millimeter.” The court asked whether the officer recalled the type of vehicle
defendant was driving. Officer Gallardo testified only that “It’s a black vehicle.” He refreshed
his memory again and stated, “Black Chevy, ma’am;” but the officer could not recall the kind of
Chevy. The trial court asked the State and the defense whether either had any questions based on
the court’s questions and both responded they did not.
¶ 13 The State informed the trial court it had no further live witnesses and that it would be
[SEGMENT 19]
proceeding by stipulation. The parties stipulated that the footage of Officer Rojas’s body worn
camera was a true and accurate depiction of the events. The trial court admitted the recording
into evidence and the State published the video to the court. The court also admitted self-
authenticating certified copies of defendant’s two prior convictions for burglary.
¶ 14 The State rested its case and the defense moved for a directed finding. The trial court
denied defendant’s motion for a directed finding and the parties proceeded with closing
arguments. At the conclusion of the parties’ arguments the court stated it wanted “to look up
some law about guns found in vehicles” and continued the matter.
¶ 15 On December 8, 2022, the trial court issued its written order following the bench trial.
The court found defendant guilty of AHC and UUWF. “The State nolle prosequi [the remaining
counts.]” The trial court’s written order states, in pertinent part, that the officers stopped “a small
black Chevrolet.” When asked for his driver’s license and insurance defendant could not produce
them and said, “Coming right from the laundromat.” Defendant complied with the officer’s
request to exit the vehicle. The court wrote: “An inventory search of the Chevrolet yielded a .9
mm handgun with a laser sight and an extended magazine, atop a child’s car seat in the middle of
the backseat. A blanket had been loosely covering the gun. A large white bag of clothes and a
1-23-1008
laundry basket were immediately next to the gun.” The court recounted defendant’s statement to
the officer about the car belonging to his sister and coming from the laundromat, then continued
as follows:
“The State argued constructive possession of the .9 mm handgun that was
on top of the child’s car seat was proven. Joint knowledge and control exist; the
gun was within arm’s reach of where defendant and the passenger had been
seated. It had been put there recently, as it would have fallen from its position
with a sudden stop of the vehicle. The blanket covering the gun was not
random—it went with the laundry defendant admitted possessing. There were not
a lot of other things in the vehicle. It would have been impossible to place the
laundry where it was, and not realize a gun was on top of the car seat. *** The
gun was not under a seat, in the glove box or inside a door or inside a center
console or in the trunk.”
¶ 16 The trial court noted that the gun was “equal distance between the driver and passenger;
both were within arm’s reach of it.” The court acknowledged the gun was not in plain sight, it
was unknown how long it had been there, this was not defendant’s vehicle, and defendant “did
not act suspiciously and aggressively like the passenger did.” The court noted that proximity is
not enough for proof beyond a reasonable doubt.
¶ 17 The court summarized the holdings in [CITATION], and [CITATION], and the evidence in this case. Of note is that the
court stated that in [CITATION], the court found that, “If two or more persons share immediate and
exclusive control or share the intention and power to exercise control, then each has possession;
where possession has been shown, an inference of guilty knowledge can be drawn from the
1-23-1008
surrounding facts and circumstances.” Further, in [CITATION], the court found that “[w]here a
defendant was the driver of a vehicle, and had merely a lone passenger, defendant had immediate
and exclusive control of the inside of the automobile for purposes of constructive possession.”
Finally, the trial court here noted that in [CITATION], the court found that “a defendant’s mere
presence in a vehicle, without more, does not establish his knowledge of a weapon therein,” but
“[a]n inference of knowledge arises when the contraband is located in a place over which the
defendant had regular ongoing, control and it is an item that human experience teaches is rarely,
if ever, found unaccountably in such a place. A defendant’s close proximity to the weapon and a
description of where the weapon was found may also be considered.”
¶ 18 The trial court then wrote:
“A *** weapon, a .9 mm handgun with laser sight and extended magazine,
was found atop a child’s car seat in the middle of the backseat, immediately next
to a laundry basket and a bag of clothing, loosely covered by a blanket. The area
where this weapon was recovered was easily within arm’s reach of both defendant
and the front seat passenger; body camera video shows the Chevrolet defendant
was driving was a small vehicle. The weapon was in a location over which
defendant had control and had placed laundry shortly before. The weapon was
recently put atop the child’s seat—such a large and distinctive handgun would not
normally be left atop a child’s car seat in a vehicle, certainly would have fallen
upon sudden stop of the vehicle, and was loosely covered by a blanket; body cam
video shows blankets were part of the laundry that was in the backseat.”
¶ 19 Based on the findings stated above, the trial court found that the State proved beyond a
reasonable doubt that defendant “knew the .9 mm firearm with laser sight and extended
1-23-1008
magazine that was found in the backseat, atop the child’s car seat, was in the Chevrolet. The
evidence proved beyond a reasonable doubt that defendant constructively possessed that
firearm.”
¶ 20 Defendant filed a motion to reconsider the judgment. On May 4, 2023, the trial court
denied defendant’s motion to reconsider the finding of guilt in a written order.
¶ 21 On May 4, 2023, the trial court sentenced defendant. In its oral sentencing ruling, the trial
court noted that the sentencing range for AHC is six to thirty years. The court noted the nature of
the weapon, which it “consider[ed] to be significant.” The trial court initially described the
firearm as a “machine gun” but immediately corrected itself to say that “the weapon in this case
was a .9 millimeter handgun loaded with a laser sight and an extended magazine.” The court
agreed there was no evidence defendant actually used the gun and that his prior convictions
“were all burglaries, no indication of physical harm to someone else.” The court also found that
there “is some mitigating information in the presentence investigation in that [defendant] was
cooperative with the officers as shown on the video.” The court found “all of that warrants the
minimum sentence here of six years in the Illinois Department of Corrections.”
¶ 22 This appeal followed.
¶ 23 ANALYSIS
¶ 24 This is an appeal from a conviction following a bench trial attacking the fairness of the
trial based on the trial court’s alleged reliance on facts not contained in the record and
questioning of a witness, the sufficiency of the evidence to prove defendant guilty of every
element of the offense beyond a reasonable doubt, and the constitutionality of the criminal
statute under which the trial court convicted defendant.
1-23-1008
¶ 25 Our supreme court “has held that the deliberations of the trial judge are limited to the
record made before [it] during the course of the trial. A determination made by the trial judge
based upon a private investigation by the court or based upon private knowledge of the court,
untested by cross-examination, or any of the rules of evidence constitutes a denial of due process
of law.” [CITATION]. Although “[t]he rule is clear that when
the trial court is the trier of the facts every presumption will be accorded that the judge
considered only admissible evidence and disregarded inadmissible evidence in reaching his
conclusion” ([CITATION]), this presumption is rebutted by statements in the
record indicating the trial judge “considered matters which were not in evidence” (id.). Where
the trial judge considered matters not in evidence, “there is no alternative but to reverse and
remand for a new trial.” Id. In these circumstances “[w]hether a defendant’s due process rights
have been denied is an issue of law, and thus, our review is de novo.” [CITATION] (the defendant argued the trial judge violated his right to due process
when the judge misremembered crucial evidence).
¶ 26 Furthermore, “a trial court has discretion to *** reopen a case on its own motion where a
sound basis for it appears in the record. [Citation.] The propriety of the judicial examination
depends on the circumstances of each case and rests largely in the trial court’s discretion.
[Citation.]” [CITATION]. We review matters committed
to the trial court’s discretion, including matters impacting a defendant’s right to a fair trial, for an
abuse of discretion. See [CITATION] (“When a
defendant argues that his due process rights and right to a fair trial were violated by the State’s
failure to disclose certain evidence in discovery, we review the trial court’s ruling on the matter
for an abuse of discretion.”). “An abuse of discretion occurs when no reasonable person would
1-23-1008
take the view adopted by the court. [Citations.] Moreover, the trial court’s ruling will not be
overturned unless the abuse of that discretion led to manifest prejudice against defendant.”
[CITATION], ¶ 134 (citing [CITATION]).
¶ 27 “When reviewing the sufficiency of the evidence,” “the relevant inquiry is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
[SEGMENT 20]
found the essential elements of the crime beyond a reasonable doubt. [Citation.] This standard of
review applies in cases whether the evidence is direct or circumstantial.” [CITATION], ¶ 48.
¶ 28 “Constitutional challenges carry the heavy burden of successfully rebutting the strong
judicial presumption that statutes are constitutional. That presumption applies with equal force to
legislative enactments that declare and define conduct constituting a crime and determine the
penalties imposed for such conduct.” (Internal quotation marks and citations omitted.) [CITATION], ¶ 9. “The constitutionality of a statute is a question of law,
which is reviewed de novo.” Id.
¶ 29 For the reasons below, we find that the trial court did not deny defendant his right to a
fair trial by considering facts not in evidence or briefly questioning Officer Gallardo, the
evidence was sufficient to prove defendant guilty of every element of AHC beyond a reasonable
doubt, and the AHC statute is constitutional under the United States Constitution and Illinois
Constitution.
¶ 30 FAIRNESS OF DEFENDANT’S TRIAL
¶ 31 First, we turn to defendant’s argument the trial court deprived him of the right to a fair
trial by allegedly relying on facts not in evidence and abdicating its role as a neutral arbiter of the
- 10 - 1-23-1008
facts and adopting the role of a prosecutor when the trial court questioned Officer Gallardo.
Defendant argues the trial court relied on facts not in evidence to find him guilty, thereby
depriving him of his right to a fair trial. Defendant admits this issue was not properly preserved
for review and asks this court to review this issue as a matter of plain error. “To successfully
maintain a claim of either first- or second-prong plain error *** a defendant must prove actual
error.” [CITATION]. That is why, “[u]nder the plain error doctrine, ‘the first step’ is to determine whether any error occurred at all.” [CITATION].
¶ 32 Once again, “the deliberations of the trial judge are limited to the record made before
[them] during the course of the trial. A determination made by the trial judge based upon a
private investigation by the court or based upon private knowledge of the court, untested by
cross-examination, or any of the rules of evidence constitutes a denial of due process of law.”
[CITATION]. Nonetheless,
`“In a bench trial, it is the function of the trial court to determine the
credibility of witnesses, weigh the evidence, draw reasonable inferences
therefrom, and resolve any conflicts in the evidence. [Citation.] The trial court is
‘free to accept or reject as much or as little as it pleases of a witness’ testimony’
[citation] and ‘may take into account her own life and experience in ruling on the
evidence’ [citation]. ***.” [CITATION].
“A trier of fact may infer from facts and circumstances in evidence other
connected facts that reasonably and usually follow according to common
experience. [CITATION.] A trier of fact is not required to disregard inferences that
flow normally from the evidence, nor to seek all possible explanations consistent
- 11 - 1-23-1008
with innocence and elevate them to reasonable doubt, nor to be satisfied beyond a
reasonable doubt as to each link in the chain of circumstances if the evidence as a
whole satisfies the trier of fact beyond a reasonable doubt. [Citation.] [CITATION].
“We need only reverse a court’s determination when the trial court’s
reliance on matters outside the record is prejudicial to one of the parties.
[Citation.] However, ‘[r]eliance on information found [outside] the record is not
reversible error where there is no evidence that it either misled or entered into the
trial court’s determination.’ [Citation.] We afford a trial court every presumption
that it considered only admissible evidence in reaching a conclusion. [Citation.]
‘This assumption will be overcome only if the record affirmatively demonstrates
the contrary, as where it is established that the court’s finding rests on a private
investigation of the evidence, or on other private knowledge about the facts in the
case.’ [Citation.]” [CITATION].
¶ 33 Defendant asserts the record demonstrates the trial relied on the following specific facts
which defendant claims were not in evidence:
1. The blankets were part of the laundry that was in the backseat.
2. The gun was in a location where defendant had placed laundry shortly before.
3. The handgun was found atop a child’s car seat.
4. A blanket had been loosely covering the gun.
5. The handgun certainly would have fallen upon sudden stop of the vehicle.
6. The handgun was large and distinctive.
7. The car was small.
- 12 - 1-23-1008
¶ 34 First, we address defendant’s implication of a distinction between the trial court saying
the handgun was found “atop” the car seat rather than “where the child usually sits,” from which
we can only infer that defendant believes the trial court found the handgun was on top of the
backrest of the car seat rather than on top of the seat of the car seat, as Officer Gallardo testified.
Defendant argues this allegedly inaccurate assumption by the trial court led the trial court to
conclude the handgun would have fallen from the car seat upon a sudden stop. These arguments
fail.
¶ 35 Defendant offers no evidence that is what the trial court meant other than his own
characterization of what “atop” means. We reject defendant’s characterization as refuted by the
record. The State’s statement for the record about where the handgun was found was admittedly
vague. The trial court questioned Officer Gallardo itself to clarify his testimony. It was in
response to the trial court’s questioning that Officer Gallardo testified the gun was found "where
the child usually sits.” The record, rather than establishing that the trial court relied on a fact not
in evidence, establishes that the trial court was keenly interested in and consciously aware of the
exact location where the gun was recovered.
¶ 36 Next, defendant also argues the State offered no evidence of what was or was not a part
of defendant’s laundry, and the trial court’s speculation led the court to conclude the handgun
was in a place where defendant had just placed laundry and therefore he must have seen it.
Defendant argues the officer never testified the blanket was “loosely” covering the handgun.
Defendant argues the conclusion the blanket “loosely” covered the handgun is belied by the
recording from Officer Gallardo’s body worn camera which shows the officer “pulling hard” on
the blanket to remove it. Defendant separately argues the State “never established that a gun
placed on the seat ‘where the child usually sits’ and covered by a blanket would have fallen
- 13 - 1-23-1008
anywhere upon a sudden stop of the vehicle, or that the gun must have been placed on the seat
recently.”
¶ 37 Defendant argues these facts, which allegedly are not part of the record, led the trial court
to reason that because the gun had not fallen then it must have been put there only recently, and
if it were put there recently it must have been put there by defendant, which, defendant argues,
led to the court’s determination that the State proved that defendant “had knowledge of the gun.”
Defendant also argues the State offered no evidence of the size of the handgun or of the car, yet
the trial court relied on the fact the gun was “large and distinctive” and the car was “small” to
find him guilty. Defendant argues that the trial court’s assumption of a fact not in evidence about
the size of the car permitted the court to find the State proved the handgun was in arm’s reach
and, therefore, that defendant constructively possessed the gun. Defendant does not explicitly
argue, as he did with the other alleged facts not in evidence, how the trial court’s alleged
adoption of the fact of the size and distinctiveness of the handgun influenced its decision and
prejudiced him.
¶ 38 The State responds the evidence adduced at trial supported the reasonable inferences that
defendant had recently placed the laundry in the car and that the blanket was part of the laundry.
The State points to evidence that defendant stated he was coming from the laundromat and the
proximity of the blanket to the laundry basket and bag of clothes as supporting the inferences
that the blanket was part of the laundry and had recently been placed in the car. The State argues
the recording from the officer’s body worn camera shows the size of the car and the trial court
expressly based its finding about the size of the car on the video.
¶ 39 The State also argues the recording shows the size and shape of the handgun and, further,
that the officer testified that the handgun was a .9 mm caliber with a laser sight and distinctive
- 14 - 1-23-1008
magazine, both of which support the trial court’s finding that the gun was large and distinctive.
The State points to the officer’s testimony that it appeared the blanket had been thrown into the
seat, and the depiction of the area in the recording, as supporting the inferences that the blanket
“loosely” covered the gun and that the gun would have fallen off the seat in the event of a sudden
stop. The State argues it was for the trial court to decide what the fact the officer had to “pull
hard” on the blanket meant and that the court could have decided it just meant the blanket was
large.
¶ 40 In reply, defendant offers his own interpretation of what the same facts noted by the State
[SEGMENT 21]
mean, positing counter-inferences and what defendant believes to be “the most likely scenario.”
Defendant argues the size of the blanket supports his argument the gun was completely
concealed and, therefore, he did not know it was present. Defendant simply denies that it can be
inferred from the “fact that a small portion of the blanket hung very slightly over the bag of
laundry” (a fact the trial court did not rely on) that defendant placed the blanket in the car and
over the gun.
¶ 41 We find that the trial court did not make any determinations based upon information not
in the record. [CITATION]. Rather, the trial court properly weighed the evidence
and drew reasonable inferences therefrom. Moreover, the trial court was free to accept Officer
Gallardo’s admissible testimony about the blanket and properly took into account its own life
and experience in ruling on the evidence. [CITATION], ¶¶ 54-55. This
record does not affirmatively demonstrate the contrary. Id. Defendant’s arguments are largely
based on inferences consistent with innocence rather than guilt. The trial court was not “required
to disregard inferences that flow normally from the evidence, nor to seek all possible
explanations consistent with innocence and elevate them to reasonable doubt.” [CITATION]
- 15 -
====== End of Part of a Court Ruling ====== 1-23-1008
App (1st) 172162, ¶ 35. Finally, defendant complains the trial court’s judgment is based on “a
string of inferences.” This assertion does not lead to the conclusion that the evidence is so
improbable or unsatisfactory to create a reasonable doubt of defendant’s guilt. [CITATION], 2024 IL
App (1st) 181491, ¶ 194 (“We will not reverse the *** verdict for lack of evidence unless the
evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt.’ [Citation.]”). “The State has the burden of establishing each element of the
offense beyond a reasonable doubt. However, this burden does not require that the State
demonstrate every link in the chain; rather the court can rely upon the reasonable inferences
which arise from circumstantial evidence.” [CITATION], 241 Ill. App. 3d 986, 992 (1993).
And, “a criminal conviction ‘may be based solely on circumstantial evidence.’ [Citation.]”
[CITATION], 2023 IL App (1st) 220920, ¶ 62.
¶ 42 The finding that “[t]he blanket covering the gun *** went with the laundry defendant
admitted possessing” is a reasonable inference from defendant’s own admission he was just
coming from the laundromat, the nature of the item itself—which defendant admits was a large
blanket—and its proximity to other items that defendant does not dispute were part of the
laundry he had just done—specifically the laundry basket and bag of clothes. The trial court
noted another fact—one which defendant does not dispute—that supports the inference that the
blanket was part of defendant’s laundry: “There were not a lot of other things in the vehicle.” If
the vehicle was primarily carrying what defendant does not dispute was laundry it stands to
reason the blanket was also laundry. Similarly, the finding that the blanket “had been put there
recently” is supported by defendant’s admission he was just coming from the laundromat and the
reasonable inference from the facts and circumstances that the blanket was part of that laundry.
- 16 -
====== End of Court Ruling ====== 1-23-1008
¶ 43 Furthermore, Officer Gallardo testified about the blanket that, “It looks like it was just
thrown into the car seat.” That, and the trial court’s own observations, are sufficient to
reasonably infer that “[a] blanket had been loosely covering the gun.” One may reasonably infer
from common experience that a “partially folded” blanket that is “just thrown over” a car seat, as
Officer Gallardo testified, as opposed to being pressed down or tucked in, would rest loosely
over the car seat. One may also infer from common experience that regardless how large or
heavy a blanket is, if it is just “thrown over” a car seat it would not press down on an object on
the seat portion of the car seat of its own weight. Similarly here, because it is reasonable to infer
that the blanket sat “loosely” over the car seat, a heavy object like a firearm (one may reasonably
infer the approximate mass of a handgun) could fall upon a sudden stop of the vehicle. In this
instance, however, whether that inference is reasonable from the evidence or not, we find
defendant was not prejudiced by it and, therefore, reversal is not required. [CITATION], ¶¶ 54-55. Defendant argues the trial court used this inference to infer the handgun
had been placed there recently—because it had not fallen—and because it had been placed there
recently, defendant knew about it. We disagree. Although the trial court did find that “[i]t had
been placed there recently, as it would have fallen from its position with a sudden stop of the
vehicle,” this was not the trial court’s reason for finding defendant knew the gun was in the car
within his reach. The trial court wrote, “It would have been impossible to place the laundry
where it was, and not realize a gun was on top of the car seat.”
¶ 44 We find the trial court found knowledge based on the findings (both from the evidence
and reasonable inferences therefrom) that the handgun would have been visible on the seat of the
car seat before laundry was placed in the car, the blanket was part of the laundry, and defendant
placed the laundry—thereby covering the handgun—in the car recently, as he was just coming
- 17 - 1-23-1008
from the laundromat. Finally, the trial court saw the gun, heard a description of the gun, and saw
the car. These facts are undisputed. The trial court’s conclusions about the size of the handgun
and the car were not based on facts not in evidence but on what it heard and saw.
¶ 45 The trial court did not base its judgment on facts not in evidence. “Finding no error on
this contention, we find no plain error or ineffectiveness of counsel.” [CITATION] Defendant’s argument he was denied a fair trial on this basis fails.
¶ 46 Next, defendant argues the trial court “crossed the line between trier of fact and advocate
for the State” when the court questioned Officer Gallardo.
“A criminal defendant who elects to be tried in a bench trial is entitled to
the same fair, patient, and impartial consideration he would be entitled to by a
jury composed of fair, impartial, careful and considerate jurors. [CITATION] *** A
trial judge’s questioning of a witness must be done in a fair and impartial manner,
without showing bias or prejudice against either party. [CITATION]” (Internal
quotation marks omitted.) [CITATION]
¶ 47 This court has explained the trial court’s role in this context: “The trial court has the right
to question witnesses in order to elicit the truth or to bring enlightenment on material issues
which seem obscure.” [CITATION] Further,
“Illinois courts have recognized that the proper function of a judge
includes a duty to ensure that justice is done in criminal trials when, for instance,
a certain fact has not been developed or a certain line of inquiry has not been
pursued, as long as the judge does not in any way become an advocate for one
side or the other. [CITATION]
- 18 - 1-23-1008
To this end, a trial court may, sua sponte, call its own witnesses and
question witnesses called by either party. [CITATION.] What a trial court may not do
is assume the role of an advocate. [CITATION.] But, a suggestion that the State
present evidence proving essential elements of an offense is not an assumption of
the role of a prosecutor. [CITATION.]” [CITATION]
Moreover, “[i]n a bench trial, it is the function of the trial court to determine the
credibility of witnesses [and] weigh the evidence ***. The trial court is ‘free to accept or
reject as much or as little as it pleases of a witness’ testimony.’ [CITATION.]”[CITATION]
¶ 48 Defendant also cites [CITATION] and argues there was no evidence “that a fact had not been
developed or a line of inquiry not pursued” to permit the trial court to interpose, and the court
assumed the role of advocate when the court questioned Officer Gallardo and “used Gallardo’s
answers to support the State’s case.” Defendant argues that the court assumed the function of
advocate and favored the State because the court used facts obtained from its own questioning to
find defendant guilty—specifically, the caliber of the handgun and the size of the car. Defendant
argues that evidence of the fact the trial court assumed the role of prosecutor lies in the fact that
Officer Gallardo could only describe the car as a black Chevy but the court repeatedly described
the car as “small.” Defendant argues the trial court used the size of the car to find the gun was
within defendant’s reach. Defendant does not specify how the caliber of the gun entered into the
court’s decision making and only notes that the court found the gun to be “large and distinctive”
[SEGMENT 22]
based the court’s own questioning of Gallardo.
- 19 - 1-23-1008
¶ 49 We find that the trial court “did not abandon its role as neutral arbiter and assume the role
of a prosecutor.” [CITATION]. The trial court’s questioning was not
extensive. [CITATION] (“A trial judge’s questioning ‘should rarely be extensive,’
although an ‘extensive examination may be justified if the court has reason to believe that a
witness is not telling the truth.’ ”). We disagree with defendant’s claim that there was no fact that
had not been developed when the trial court questioned Gallardo. The exact location where the
gun was recovered had not been developed when the court asked Gallardo, “Where did you
recover it?” The location of the gun was clearly an important fact that needed to be developed.
“And, as this was a bench trial, the court possessed wide latitude, the question related to its fact-
finding role, and the risk of prejudice to [defendant] was low.” [CITATION]
¶ 26 (holding trial court did not abandon its role as neutral arbiter). The risk of prejudice to
defendant from the question itself was low because the answer may have helped defendant. (For
example, if Officer Gallardo had testified the gun was on top of the backrest defendant might
have used that testimony to argue the gun was not in his reach—although we express no opinion
about the efficacy of that argument.)
¶ 50 “To show prejudice in a bench trial, the defendant must show that ‘the tenor of the
court’s questioning indicates the court has prejudged the outcome before hearing all of the
evidence.’ [Citation.]” [CITATION]. There is nothing
to indicate the trial court had prejudged the outcome. The question was a direct request for a
relevant fact, the answer to which may have benefitted either party. In fact, defendant uses his
own interpretation of the evidence of the location of the gun to bolster his argument the trial
court’s findings are not supported by evidence in the record. We find that this question was
asked “in a fair and impartial manner, without in any way showing bias for or prejudice against
- 20 - 1-23-1008
either party to the litigation.” [CITATION]. Furthermore, in this case, like in [CITATION], the
trial court “did not decide *** that the State needed to present more evidence and then order the
State to produce it. Rather, the trial court [elicited] evidence before argument.” Id. ¶ 30.
Therefore, in this case, the questioning was a “proper function of a judge.” [CITATION] ¶ 24 (citing , inter alia, [CITATION]).
¶ 51 Nor had the type of gun and car been developed when the trial court recalled Officer
Gallardo to the stand. Regardless, the trial court’s questioning about the caliber of the gun and
the type of car were “not necessary to prove the State’s case.” Id. ¶ 30. For whatever purpose it
may or may not have been used, the State elicited sufficient evidence for the trial court to find
the handgun was “large and distinctive.” The State asked Officer Gallardo, referring to the
handgun, “What attachments did it have?” Officer Gallardo responded, “It has an extended
magazine and a laser sight.” That evidence elicited by the State is sufficient to permit the trial
court to find the gun “large” (it had an extended magazine) and “distinctive” (it had a laser
sight). As for the size of the car, any testimony elicited by the trial court touching on the size of
the car was not necessary to prove whether the gun was within defendant’s reach. The State
asked, “Was the firearm within arm’s reach of where the defendant had been seated?” Officer
Gallardo responded, “Yes.”
¶ 52 Defendant has failed to establish prejudice from the trial court’s questioning of Officer
Gallardo. We find the trial court did not abuse its discretion.
¶ 53 SUFFICIENCY OF THE EVIDENCE
¶ 54 Defendant argues the State failed to prove beyond a reasonable doubt that defendant had
constructive possession of the handgun. “To prove [defendant] guilty of armed habitual criminal,
the State had to show two elements: (i) [defendant] possessed a firearm and (ii) possession was
- 21 - 1-23-1008
after having been convicted of two qualifying offenses.” [CITATION], 2023 IL App (1st)
192519, ¶ 45. Defendant only disputes whether the State proved possession. In the absence of
actual possession, the State must seek “to prove constructive possession—that [defendant] had
knowledge of the gun’s presence and ‘immediate and exclusive’ control over the area where
officers found it. [Citation.]” Id., [CITATION], 2012 IL App (1st) 102094, ¶ 17 (“When a
defendant is not found in actual possession, the State must prove constructive possession.”).
Defendant argues the State failed to prove that defendant constructively possessed the handgun
because the gun was not visible, defendant did not make any gestures or movements toward the
backseat of the car, no physical evidence links him to the handgun, and defendant made no
incriminating statements.
¶ 55 “A person has actual possession when he has immediate and exclusive control over an
item; actual possession does not require ‘present personal touching’ of that item. [Citation.] A
person has constructive possession when he lacks actual possession but has the intent and
capability to exercise control over the item. [Citation.]” [CITATION], 2023 IL App (1st)
231856, ¶ 22. “The control may be exercised directly or through another person. [Citations.] ‘[I]f
two or more persons share [the] immediate and exclusive control or share the intention and [the]
power to exercise control’ over a thing, ‘then each [one] has possession.’ [Citation.]” [CITATION], 2020 IL App (1st) 163417, ¶ 66.
¶ 56 “[I]t is not the function of the reviewing court to retry the defendant. [Citation.] *** The
credibility of the witnesses, the weight to be given their testimony, and the resolution of any
conflicts in the evidence are within the province of the trier of fact, and a reviewing court will
not substitute its judgment for that of the trier of fact on these matters. [Citation.]” [CITATION], 2022 IL
App (1st) 171509, ¶ 48. “We have recognized that constructive possession often involves
- 22 - 1-23-1008
‘entirely circumstantial’ evidence [citation].” [CITATION]. ¶ 45.
Circumstantial evidence is sufficient to sustain a criminal conviction. Id. ¶ 49.
“Circumstantial evidence is sufficient to sustain a criminal conviction,
provided that such evidence satisfies proof beyond a reasonable doubt of the
elements of the crime charged. [Citation.] The trier of fact need not be satisfied
beyond a reasonable doubt as to each link in the chain of circumstances; it is
sufficient if all of the evidence taken together satisfies the trier of fact beyond a
reasonable doubt of the defendant’s guilt. [Citation.] To prove guilt beyond a
reasonable doubt does not mean that a [trier of fact] must disregard the inferences
that flow normally from the evidence before it.” [CITATION].
Nor is the trier of fact “required to *** seek all possible explanations consistent with innocence
and elevate them to reasonable doubt. [Citation.] In other words, the State need not disprove or
rule out all possible factual scenarios in order to sustain its burden.” [CITATION]. “We will not reverse the *** verdict for lack of evidence unless the
evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt.’ [Citation.]” [CITATION].
¶ 57 In his opening brief, defendant did not make any specific arguments that the State failed
to prove he had “immediate and exclusive control over the area where the firearm is found.”
Although the State does not argue forfeiture, the State does assert, repeatedly, that defendant is
not challenging the “control” factor for constructive possession. Defendant refutes this
contention, arguing in reply that he did argue the State failed to prove “control” because
defendant challenged the sufficiency of the evidence to prove constructive possession in general,
- 23 - 1-23-1008
and defendant cited cases in which the court found a lack of “control.” The State is correct that
defendant’s opening brief did not argue that the State failed to prove defendant had control over
the area where the firearm is found.
“Arguments raised for the first time in a reply brief need not be addressed
by this court. [Citation.] Besides maintaining consistency and uniformity,
avoiding confusion, and preventing gamesmanship, Rule 341(h)(7) prevents
unfairness to an adverse party who would have no notice of the issue or an
opportunity to provide a response. [Where an] issue could have been raised in the
principle brief but was not, we decline to entertain it.” [CITATION]
¶ 58 Although the issue of control is not properly before this court, we find defendant’s newly
raised arguments that the State failed to prove control unpersuasive. 1
¶ 59 Defendant argues the State failed to prove control because he did not own the vehicle and
[SEGMENT 23]
“his status as the driver did not establish his possession of the entire contents of the vehicle.”
“[W]e agree with *** defendant that ownership is not dispositive,” but [it] may be relevant or
“probative of the issue of control.” [CITATION] Ownership is not a necessary element of control for purposes of constructive possession and plays no part in
this case. However, “direct evidence of a defendant driving a vehicle is surely sufficient evidence
of control.” [CITATION] Defendant’s new argument the State failed
to prove the “control” element of constructive possession fails. Defendant is correct only in that
1
See [CITATION] (where the State raised the issue of
abandonment for the first time in its reply brief, the court found the issue was not properly before
the court but, nonetheless found the State failed to carry its burden of proving the incriminating
property was abandoned), vacated on other grounds, [CITATION].
- 24 - 1-23-1008
“his status as the driver did not establish his [knowing] possession of the entire contents of the
vehicle.”
¶ 60 “[K]nowledge may often be inferred from one’s control over an area. [Citation.] Such an
inference is certainly not always appropriate.” [CITATION], ¶ 45. “While
any sort of control will satisfy the first component of constructive possession, *** only ‘regular,
ongoing control’ may give rise to an inference of knowledge.” (Emphasis added.) Id. In the
absence of “regular, ongoing control” the State must present other evidence of knowledge, which
may include “circumstantial evidence from which [the] defendant’s knowledge could be
inferred.” [CITATION]. The State does not have to prove the handgun was
in plain view at all times, as long as defendant had an opportunity to observe it. See [CITATION]. For the reasons stated below, we find the State did
present evidence of knowledge other than defendant’s status as the driver.
¶ 61 Defendant also argues that the trial court misplaced its reliance on [CITATION], because [CITATION] is distinguishable in that, in [CITATION], the defendant was alone in
the car, fled from police, and the gun was hidden in a way that called attention to its presence. In
[CITATION], the court found that the defendant had control of the vehicle because the defendant “was
its driver and sole occupant.” [CITATION], ¶ 35. It is clear from [CITATION]
that it did not only rely on the fact the defendant was alone in the car but instead, the fact the
defendant was alone in the car was just additional “evidence for a rational trier of fact to find that
[the] defendant controlled the vehicle from which the contraband was discovered.” Id. This
conclusion is proven by the [CITATION] in support of this finding to [CITATION],
for the proposition that “ ‘because the defendant was the driver of the vehicle, and because he had merely a lone passenger, defendant had
- 25 - 1-23-1008
immediate and exclusive control of the inside of the automobile’ for purposes of constructive
possession of methaqualone recovered from under the front passenger’s seat” (emphasis added),
and [CITATION] (“The defendant had immediate and
exclusive control over the area in which the officer found the gun. The presence of the other men
in the car does not negate defendant’s constructive possession of the concealed weapon.”)
[CITATION], ¶ 35.
¶ 62 Additionally, the fact the defendant in [CITATION] fled was a relevant, but not a necessary,
fact in support of the inference of the defendant’s knowledge of the presence of the handgun. See
id. ¶ 29 (introducing evidence of defendant’s flight, along with other evidence, by stating “[a]lso
supporting the inference of defendant’s knowledge”). The [CITATION] court did rely, in part, on the
fact that after manipulating “the compartment containing the firearm, [it was] immediately
visible” and “was located so close to the driver’s area and was readily accessible upon
‘manipulation’ [to] suggest the firearm was intentionally placed there to be readily accessible to
the driver” to find that the evidence was sufficient to prove the defendant knew the firearm was
in the vehicle. Id. ¶ 38. Nothing in [CITATION] suggests that its factual determinations are necessary
factors to find knowledge of the presence of contraband. The [CITATION] court merely applied the
facts of the case before it to the question of whether “the contraband [was] located in a place
over which the defendant had ‘regular ongoing control’ and [was] ‘an item that human
experience teaches is rarely, if ever, found unaccountably in such a place.’ [Citation.]” (id. ¶ 37)
to find that defendant knew the firearm was in the vehicle. The facts of this case satisfy those
standards. Defendant’s attempt to distinguish [CITATION] is unavailing.
¶ 63 Turning to the question of defendant’s knowledge, and control, in [CITATION],
a jury found the defendant guilty of aggravated unlawful use of a weapon where the
- 26 -
====== 1-23-1008
defendant was a passenger in a car and after an inventory search of the car police recovered a
handgun beneath the defendant’s seat. [CITATION]. Before trial, the defendant
alternatively told police the driver of the vehicle had shown the defendant the gun in the
defendant’s residence, after which the defendant placed the gun on a table, and that the driver
had shown the defendant the gun in the car after which the defendant returned it and exited the
car. [CITATION]. At trial, the defendant testified he had no knowledge of the gun in the vehicle and denied
making any statements about the driver showing the defendant the gun. [CITATION].
¶ 64 The defendant in [CITATION] argued that the State failed to prove the defendant had
knowledge of the gun in the vehicle. [CITATION]. The court held that it was incumbent on the State
to present some circumstantial evidence of knowledge of the presence of the weapon. [CITATION].
The court stated that “[a] defendant’s mere presence in a car, without more, is not evidence that
he knows a weapon is in the car.” [CITATION] (citing [CITATION]). The court found that some factors from which knowledge could be inferred include “(1)
the visibility of the weapon from defendant’s position in the car, (2) the period of time in which
the defendant had an opportunity to observe the weapon, (3) any gestures by the defendant
indicating an effort to retrieve or hide the weapon, and (4) the size of the weapon.” [CITATION].
But the [CITATION] court also found that “[c]ourts should also consider any other relevant
circumstantial evidence of knowledge, including whether the defendant had a possessory or
ownership interest in the weapon or in the automobile in which the weapon was found.” [CITATION] (citing [CITATION]). In [CITATION], the State “failed to introduce any evidence
that [the defendant] had knowledge of the weapon’s presence in the vehicle in which the
defendant was the passenger.” [CITATION].
- 27 - 1-23-1008
¶ 65 Subsequently, in [CITATION], the defendant argued that “his conviction must be
reversed where there was nothing connecting him to [drugs recovered from ‘the pouch behind
the driver’s seat of the car in which he was a passenger’] aside from his mere presence in the car,
which [the defendant] maintains is insufficient as a matter of law.” [CITATION], ¶ 36. The [CITATION] court found that “[w]hen there is no direct evidence of
knowledge of contraband in a car, reviewing courts look to four factors, derived from [CITATION], and cited in [CITATION], to
determine whether the State presented sufficient circumstantial evidence from which the
defendant’s knowledge may reasonably be inferred.” Id. ¶ 39. The court listed the “Bailey
factors” and further stated that the “State cannot rely on a defendant’s mere presence to establish
knowledge that a controlled substance is in a vehicle.” Id. (citing [CITATION]). The [CITATION] court,
relying exclusively on the “Bailey factors,” found that the State “failed to present sufficient
evidence that [the] defendant had knowledge of the presence of the bag of drugs as to establish
constructive possession.” Id. ¶ 44 (“Having considered the Bailey factors, we conclude that in
this case, the State failed to present sufficient evidence that defendant had knowledge of the
presence of the bag of drugs so as to establish constructive possession.”).
¶ 66 In this case, defendant argues that applying the “Bailey factors” to this case
“demonstrates that the State failed to prove that [defendant] knowingly possessed the gun the
police recovered from the back seat of [defendant’s] sister’s car. Defendant argues (1) the
handgun was not visible to defendant—and in support thereof defendant argues the State failed
to prove the blanket covering the gun was part of defendant’s laundry; (2) there is no evidence as
to how long the gun was in the car and therefore no evidence that defendant had any opportunity
- 28 - 1-23-1008
[SEGMENT 24]
to observe the handgun; (3) there was no evidence of defendant attempting to retrieve or hide the
handgun, nor that defendant made any furtive movements toward the back seat; (4) the size of
the gun—“ ‘small’ enough to sit on the child’s car seat completely out of sight—does not support
the conclusion that [defendant] was aware of its presence;” and (5) any additional factors of
knowledge do not support his conviction where (i) there is a lack of physical evidence tying
defendant to the handgun, (ii) defendant did not try to flee, and (iii) defendant cooperated with
police and never made an admission of guilt or otherwise display a guilty conscious. Defendant
argues that under [CITATION], his mere presence in the car, which he argues is the only fact the State
proved, is not enough to prove knowledge. Defendant concludes “the State failed to establish
constructive possession beyond a reasonable doubt,” and this court should reverse defendant’s
AHC conviction outright.
¶ 67 The State responds defendant’s status as the driver, time in the car, and the location and
size of the handgun prove defendant had knowledge and control of the firearm. The State argues
that defendant was not “merely present” in the vehicle but was the driver, as the driver defendant
had control over the vehicle’s contents, and that control raised the reasonable inference
defendant had knowledge of the firearm notwithstanding the passenger’s access to the firearm.
The State also argues that defendant had control over the firearm because defendant was the
driver and because of the location of the handgun—within arm’s reach where “firearms are not
normally found.” The State argues that defendant’s control “over the vehicle’s contents generates
a reasonable inference of his knowing possession of the weapon.” The State disputes defendant’s
analysis of the [CITATION] factors, arguing (regarding the first factor) that the evidence raises a
reasonable inference that the blanket covering the handgun was part of the laundry defendant
moved in and out of the vehicle, and the firearm, which was easily identifiable as such, would
- 29 - 1-23-1008
have either been visible when defendant placed the blanket over it or that defendant placed it
there himself. As to the remaining factors, the State argues it did not have to elicit evidence as to
every factor to establish defendant’s constructive possession of the handgun because “Bailey’s
list is not exhaustive, and a finding of knowledge does not require that every factor on the list be
met.” Rather, the State argues, the circumstantial evidence “all supported the [trial] court’s guilty
verdict.”
¶ 68 First, we agree with the State that it was not required to produce evidence of every
“Bailey factor” to prove defendant constructively possessed the handgun. As the State notes,
even the Bailey court stated that “[c]ourts should also consider any other relevant circumstantial
evidence of knowledge ***.” [CITATION]. This court has recognized that
“[t]he Bailey factors do not *** constitute the exclusive means for determining whether a vehicle
occupant knew that contraband was present” ((emphasis in original) [CITATION], ¶ 45, see also [CITATION], ¶ 19 (“[t]he court’s list
of factors was not exclusive”)), and that we are not required to apply them in every case (see
[CITATION], ¶ 19 (“the [Bailey] court’s list of factors was not
exclusive. [Citation.] Given the different circumstances in the current case, we believe the factors
considered in Bailey are less relevant here.”)). The foregoing notwithstanding, “the period of
time in which [defendant] had an opportunity to observe the weapon” ([CITATION] (listing factors)) weighs in favor of inferring that defendant had knowledge of the handgun.
The evidence was sufficient to produce reasonable inferences that defendant placed the blanket
in the car, and thus over the handgun visible on the seat of the car seat, as part of the laundry
defendant admitted he had just done. A reasonable trier of fact could infer defendant had the
opportunity to observe the weapon when putting the laundry in the car to go to the laundromat,
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taking it out to do the laundry, and a third time putting the laundry back in the car. Any would
have provided an opportunity to observe the handgun on the car seat.
¶ 69 Second, while defendant is correct that his “mere presence” in the vehicle, alone, is
insufficient to establish his knowledge of the presence of the firearm ([CITATION]), it is also true that defendant’s status as the driver is
sufficient to establish that defendant had immediate and exclusive control over the area where
the weapon was found (uncased, covered by a blanket, on the seat of a car seat, in the middle of
the backseat of the vehicle defendant was driving). [CITATION]). And “[p]roof that a
defendant had control over the premises where the contraband is found gives rise to an inference
of knowledge and possession of that contraband” ([CITATION]).
¶ 70 In Hampton, the court held that for an inference to arise that the defendant had
knowledge of a handgun within the vehicle’s glove compartment, “the State had to demonstrate
that [the] defendant had regular, ongoing control over the vehicle that he was driving.” [CITATION]. Alternatively, the State must adduce “other
evidence establishing knowledge of the weapon” which may include circumstantial evidence.
[CITATION] (“knowledge may, and most often must, be
proved by circumstantial evidence.”). There was no evidence and we do not find that defendant
had “regular, ongoing control” of the vehicle, but the handgun, even covered by the blanket, was
“an item that human experience teaches is rarely, if ever, found unaccountably in such a place.”
[CITATION]. Nonetheless, the evidence established more than defendant’s
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“mere presence in the vehicle.” The State adduced additional circumstantial evidence of
defendant’s knowledge of the handgun.
¶ 71 The handgun was found in the middle of the backseat on the seat portion of the car seat
and would have been in plain view if it were not covered by the blanket; and as previously
discussed, the evidence permitted the reasonable inference that the blanket found covering the
handgun was part of the laundry, that defendant placed the laundry in the car either before or
after leaving the laundromat, and that defendant would have seen the handgun on the car seat
when defendant put the laundry in the car (or, as Officer Gallardo testified, tossed the blanket
over the car seat). We do not need to find that defendant put the handgun on the car seat or that
defendant intentionally tried to hide the gun with the blanket (although both are reasonable
inferences from the evidence). All that is required to establish defendant’s constructive
possession of the handgun is that defendant “had knowledge of the presence of the contraband,
and had control over the area where the contraband was found.” [CITATION], ¶ 27 (citing [CITATION] at
1031). It is also irrelevant that defendant’s passenger had an equal ability to exercise control over
the firearm or may have also known of its presence. “Constructive possession is not diminished
by evidence of others’ access to contraband.” [CITATION], ¶ 27. It is
“settled law that constructive possession of contraband can be established even where possession
is joint or others have access to the area where the contraband is recovered.” [CITATION], ¶ 43. The State proved that defendant had immediate and
exclusive control over the area where officers found the handgun and knowledge of the gun’s
presence in the vehicle. [CITATION], ¶ 17. The evidence admitted at trial and the reasonable inferences therefrom were
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sufficient to permit the trier of fact to find beyond a reasonable doubt that defendant
constructively possessed the handgun.
¶ 72 CONSTITUTIONALITY OF AHC UNDER THE SECOND AMENDMENT
¶ 73 Defendant argues the AHC statute is unconstitutional on its face and as applied to
defendant because it violates the second amendment to the United State Constitution. A facial
challenge requires a showing that the statute in question is unconstitutional under any set of
facts. [CITATION], ¶ 12. A conviction based on a facially
unconstitutional statute is void ([CITATION], ¶ 67), and the issue of the
constitutionality of the statute may be raised by a defendant for the first time on appeal ([CITATION], ¶ 8).
¶ 74 “[A]n as-applied challenge requires a showing that the statute is unconstitutional as it
applies to the specific facts and circumstances of the challenging party.” [CITATION], ¶ 12. “A facial challenge fails if we can conceive of any set of circumstances in
which the statute could be validly applied—including as applied to the very party before us.” [CITATION], ¶ 48 (citing [CITATION], 125
(2006) (“if as-applied challenge fails, facial challenge necessarily fails”)).
“Because facial and as-applied constitutional challenges are distinct
actions, it is not unreasonable to treat the two types of challenges differently ***.
By definition, an as-applied constitutional challenge is dependent on the particular
circumstances and facts of the individual defendant or petitioner. Therefore, it is
paramount that the record be sufficiently developed in terms of those facts and
circumstances for purposes of appellate review.” [CITATION]
[SEGMENT 25]
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, ¶¶ 29-30, overruled on other grounds by [CITATION]
, ¶ 42.
¶ 75 In [CITATION], the court held that it could review an as applied challenge on appeal if the
record was sufficiently developed. The court found that the “[d]efendant concedes he did not
raise the issue previously but argues the record is sufficiently developed for us to review his
claim, and upon review of the record, we agree. See [CITATION], 2017 IL 120655, ¶¶ 29-32,
overruled on other grounds by [CITATION], 2023 IL 127666, ¶ 42 (finding where all relevant facts
and circumstances are contained in the record, a claim may be raised and reviewed on appeal).”
[CITATION], 2024 IL App (3d) 230113, ¶ 17. Similarly, here, defendant’s criminal history is
undisputed and it is unclear how further investigation into whether defendant is a “violent” felon
“would aid us in determining whether the felon dispossession statutes have been constitutionally
applied to defendant” where the second amendment, article I, section 22, nor the AHC statute
draw any distinction between “violent” felonies and “nonviolent” felonies. See id. ¶ 18.
¶ 76 Although the State argues defendant forfeited his as-applied challenge by failing to raise
it in the trial court, we find that the record is sufficiently developed for this court to address the
challenge. Id. ¶ 17. Therefore, we begin with defendant’s as-applied challenge because if the
statute is constitutional as applied to defendant then there is necessarily a set of facts under
which the statute is constitutional. See [CITATION], 2023 IL App (1st) 230121-U, ¶ 14.
¶ 77 Defendant argues the AHC statute violates the second amendment under the test
announced by the United States Supreme Court in [CITATION],
597 U.S. 1 (2022). In [CITATION], the Supreme Court announced a two-part test to determine whether
statutes that regulate the right to keep and bear arms violate the second amendment. [CITATION], 597
U.S. at 24. Post-[CITATION], “the standard for applying the Second Amendment is as follows: When
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the Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id.
To determine whether a regulation is “consistent with the Nation’s historical tradition of firearm
regulation,”
“[a] court must ascertain whether the new law is ‘relevantly similar’ to
laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance
struck by the founding generation to modern circumstances.’ [CITATION.] ***
Why and how the regulation burdens the right are central to this inquiry.
[CITATION.] For example, if laws at the founding regulated firearm use to address
particular problems, that will be a strong indicator that contemporary laws
imposing similar restrictions for similar reasons fall within a permissible category
of regulations. Even when a law regulates arms-bearing for a permissible reason,
though, it may not be compatible with the right if it does so to an extent beyond
what was done at the founding. And when a challenged regulation does not
precisely match its historical precursors, ‘it still may be analogous enough to pass
constitutional muster.’ [CITATION.] The law must comport with the principles
underlying the Second Amendment, but it need not be a ‘dead ringer’ or a
‘historical twin.’ [CITATION.]” [CITATION]
¶ 78 The first step of the Bruen test, whether the second amendment’s “plain text covers an
individual’s conduct,” requires “a ‘textual analysis’ focused on the ‘ “normal and ordinary” ’
meaning of the Second Amendment’s language.” [CITATION] That analysis by the Supreme Court found
that the second amendment protects “law-abiding citizens.” [CITATION] (“For most
of our history, the Bill of Rights was not thought applicable to the States, and the Federal
Government did not significantly regulate the possession of firearms by law-abiding citizens.”),
see also [CITATION] (Stevens, J., joined by Souter, J., Ginsburg, J., and Breyer, J.,
dissenting) (“when it finally drills down on the substantive meaning of the Second Amendment,
the Court limits the protected class to ‘law-abiding, responsible citizens’ ”), [CITATION] (Alito, J., concurring) (“[CITATION] correctly recognized that the Second Amendment codifies the
right of ordinary law-abiding Americans to protect themselves from lethal violence by
possessing and, if necessary, using a gun.”).
¶ 79 [CITATION] did not disturb that conclusion. [CITATION] (Alito, J., concurring) (“Our
holding decides nothing about who may lawfully possess a firearm or the requirements that must
be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may
possess. Nor have we disturbed anything that we said in [CITATION] or [CITATION] about restrictions that may be imposed on the possession or carrying of guns.”). In
[CITATION] and [CITATION] the Supreme Court held that states may restrict felons from possessing
firearms. [CITATION] (“nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons”), [CITATION]
(“We made it clear in [CITATION] that our holding did not cast doubt on such longstanding regulatory
measures as ‘prohibitions on the possession of firearms by felons ***.’ [CITATION] We repeat
those assurances here.”).
¶ 80 In this case defendant argues that there is no historical analogue for a permanent, status-
based revocation of the right to keep and bear arms applicable to felons and therefore the AHC
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statute is not consistent with the Nation’s historical tradition of firearm regulation. This is, of
course, an argument that the AHC statute does not pass constitutional muster under the second
step of the Bruen analysis. Defendant admits that “[t]o evaluate the constitutionality of Illinois’
[AHC] statute this Court must answer two questions: (1) whether [defendant] falls within the
Second Amendment’s protections at all, and (2) if he does, whether the historical record justifies
a permanent ban on his ability to possess any firearm at any time.” (Emphasis added.) As for the
first question, defendant argues he is protected by the second amendment because it applies to
“all Americans.” Defendant cites [CITATION] for the
proposition that a felon’s possession of a firearm falls under the conduct protected by the second
amendment because, defendant argues, pursuant to [CITATION], “a felon’s status is irrelevant under
the first step of the Bruen test.” Defendant essentially argues that [CITATION] confirms that Bruen
abrogated any presumption that barring felons from possessing firearms is permissible under the
second amendment because Bruen and [CITATION] place the focus of the first step of the analysis on
conduct—the conduct of possessing a firearm—and not status—in this case the status of being a
felon.
¶ 81 We reject defendant’s assertion that his conduct is protected by the second amendment
and we disagree with the suggestion that a party’s status as a felon is “irrelevant at this stage of
the analysis.” [CITATION], ¶ 89. The [CITATION] court found that the conduct
at issue was “the defendant’s possession of the firearm after having been twice convicted under
any of the myriad of enumerated felonies [in the AHC statute], which in this case, both happen to
be nonviolent.” [CITATION], ¶ 86. Nonetheless, the court found that
“[u]nder Bruen, the first step asks only whether ‘the Second Amendment’s plain
text covers an individual’s conduct.’ [Citation.] This step does not contemplate
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the actor or the subject. [Citations.] Accordingly, the defendant’s status as a felon
is irrelevant at this stage of the analysis. Instead, the defendant’s possession of a
firearm is ‘presumptively constitutional.’ [Citation.]” Id.
We disagree.
¶ 82 Under [CITATION], the first step looks at the conduct actually being regulated:
“At the first step, the government may justify its regulation by
‘establish[ing] that the challenged law regulates activity falling outside the scope
of the right as originally understood.’ [CITATION] The Courts of Appeals then
ascertain the original scope of the right based on its historical meaning.
[Citation.]” (Emphases added.) [CITATION]
This court has recognized that “[f]irst, we must identify the conduct at issue to determine
whether that conduct falls under the ‘plain text’ of the second amendment.” [CITATION] The conduct at issue under the AHC statute is not, broadly and
generally, possession of a firearm. If it was, it would probably be unconstitutional. [CITATION] (“New York’s proper-cause requirement violates the Fourteenth Amendment in that it
[SEGMENT 26]
prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep
and bear arms.”). Rather, the conduct at issue under the AHC statute is the possession of firearms
by felons. “If the government can prove that the regulated conduct falls beyond the
Amendment’s original scope, ‘then the analysis can stop there; the regulated activity is
categorically unprotected.’ [Citation.]” (Emphases added.) [CITATION]
¶ 83 In [CITATION], the Supreme Court’s first word was that it had “recognized that the Second and
Fourteenth Amendments protect the right of an ordinary, law-abiding citizens to possess a
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handgun in the home for self-defense.” [CITATION]
“Though the [CITATION] did not define ‘law-abiding citizen,’ previous
Supreme Court precedent identifies categories of people who have long been
lawfully prevented from bearing arms. In [CITATION], the
Supreme Court cautioned that
‘nothing in [its] opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of
arms.’ [CITATION]
There is little to expound here: by its plain language, the Supreme
Court explicitly sanctioned the prohibition on the possession of firearms by
felons.” [CITATION]
¶ 84 Further, the second amendment “does not distinguish between violent felonies and non-
violent felonies.” [CITATION] In [CITATION], the court held:
“Under the AHC and UUWF statutes, both of which are facially
constitutional, defendant is prohibited from possessing a firearm due to his status
as a felon, irrespective of the violent or nonviolent nature of his convictions. We
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decline to invade the province of the legislature to determine which convictions
warrant a loss of rights.” [CITATION]
see also [CITATION] (“defendant’s previous felony
convictions make him not a law-abiding citizen and, therefore, not protected by the second
amendment. By incurring a felony conviction, even a nonviolent felony conviction, a citizen
forever loses the constitutional right to have a firearm for the defense of his person and his
house”), [CITATION] (rejecting the defendant’s
request for the court to “interpret ‘law-abiding citizens’ to include those who had been convicted
of nonviolent felonies”), [CITATION] (citing Brooks, [CITATION]). Thus, the constitutionality of disarming felons extends to nonviolent
felons.
¶ 85 We find that the regulated conduct under the AHC statute “falls beyond the
Amendment’s original scope” because the scope of the second amendment reaches only “law-
abiding citizens.” [CITATION] (“It is undisputed that petitioners Koch and Nash—
two ordinary, law-abiding, adult citizens—are part of ‘the people’ whom the Second Amendment
protects.”), [CITATION] (“The Bruen Court could not have
been more clear that its newly announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like defendant.”), [CITATION] (“Bruen limits the second amendment’s scope to (1) citizens who are (2) law-
abiding and (3) responsible, and (4) who use firearms for self-defense.”), [CITATION] Defendant, a twice-convicted felon, is not a law-abiding citizen.
¶ 86 This conclusion is not “defeated by Rahimi,” as defendant suggests. In Rahimi, the
Supreme Court addressed the constitutionality under the second amendment of a statute that
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“prohibits an individual subject to a domestic violence restraining order from possessing a
firearm if that order includes a finding that he ‘represents a credible threat to the physical safety
of [an] intimate partner,’ or a child of the partner or individual.” [CITATION]. The
Court rejected the Government’s argument that Rahimi could be disarmed “simply because he is
not ‘responsible.’ ” Id. at 1903. The Court found that the term “responsible” is vague and that
“[i]t is unclear what such a rule would entail.” Id.
¶ 87 Although the Court “used the term ‘responsible’ to describe the class of ordinary citizens
who undoubtedly enjoy the Second Amendment right” the Court “did not define the term and
said nothing about the status of citizens who were not ‘responsible.’ ” But we do not find, despite
what defendant claims about the State’s argument, that defendant is not someone to whom the
second amendment applies because he is not “responsible.” The second amendment does not
protect defendant’s right to possess a firearm because he is not a law-abiding citizen.
¶ 88 Defendant cites a dissent in Rahimi in an attempt to refute “the ‘law abiding *** citizen’
test.” The dissenting justice wrote:
“At the outset of this case, the Government contended that the Court has
already held the Second Amendment protects only ‘responsible, law-abiding’
citizens. [Citation.] The plain text of the Second Amendment quashes this
argument. The Amendment recognizes ‘the right of the people to keep and bear
Arms.’ (Emphasis added.) When the Constitution refers to ‘the people,’ the term
‘unambiguously refers to all members of the political community.’ ” [CITATION] (Thomas, J., dissenting).
We reject the dissent’s contention that the second amendment protects anyone other than “law
abiding citizens.” See [CITATION].
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been more clear that its newly announced test applied only to laws that attempted to regulate the
gun possession of ‘law-abiding citizens,’ and not felons like defendant.”).
¶ 89 Statutes prohibiting felons, including nonviolent felons, from possessing firearms are
presumptively constitutional. [CITATION] (“Heller never established a categorical
rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact,
our opinion stated that many such prohibitions, like those on the possession of firearms by
‘felons and the mentally ill,’ are ‘presumptively lawful.’ ”). Therefore, the analysis stops here
([CITATION]); the AHC statute is constitutional under the second amendment as
applied to defendant—a twice convicted felon—and, necessarily, it is also facially constitutional
[CITATION].
¶ 90 CONSTITUTIONALITY OF AHC UNDER ARTICL I, SECTION 22
¶ 91 Defendant argues the AHC statute is unconstitutional on its face and as applied to
defendant under article I, section 22 of the Illinois constitution. Article I, section 22, reads as
follows: “Subject only to the police power, the right of the individual citizen to keep and bear
arms shall not be infringed.” Ill. Const. art. I, § 22. Defendant argues that by conferring the right
to keep and bear arms on “the individual citizen” rather than “the People” (compare U.S. Const.
amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.”)), the right to keep and bear arms
under the Illinois constitution is broader than under the second amendment and protects a
broader class of individuals, including those “with a legal status that might otherwise place them
outside the political community,” that includes defendant “as an ‘individual citizen’ of this
State.”
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¶ 92 Defendant also argues that the prefatory language “[s]ubject only to the police power”
does not narrow defendant’s right so as to permit permanent felon dispossession. Defendant
argues that the record of the Constitutional Convention shows that the delegates were concerned
with regulating “certain types of arms under the police power, not certain categories of people.”
To the extent the delegates expressed concern about those who committed crimes possessing
firearms, the comments reveal a greater concern for “felony convictions that revealed a tendency
for violence,” and those comments “have to be read consistently with the felon dispossession
laws in effect at the time.” Defendant argues that at the time of the convention there was no law
permanently dispossessing felons of firearms, therefore, the language “[s]ubject to the police
power” “cannot be read to countenance permanent felon dispossession.” As applied to defendant,
defendant argues that “because [defendant] was not using the gun in a dangerous way, nor were
his prior convictions violent, the Illinois Constitution as applied to [defendant] does not preclude
his possessing a gun.”
¶ 93 The State responds that assuming arguendo that article I, section 22, does embrace
defendant regardless of his felon status, the AHC statute is a proper exercise of the police power.
In apparent response to defendant’s argument that the meaning of “the police power” in article I,
section 22, is only the power to restrict violent felons’ possession of firearms temporarily, the
State argues that, as explained in [CITATION], our supreme court in [CITATION], “recognized that
[SEGMENT 27]
Illinois’ police power was ‘intended to provide an “extraordinary degree of control” over the
possession of firearms’ and allows laws ‘restraining or prohibiting anything harmful to the
welfare of the people.’ [Citations.]” The State argues that this court may not overrule that finding
by our supreme court.
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¶ 94 In [CITATION], a village ordinance completely banned the possession of all operable
handguns with limited exceptions. [CITATION]. Our supreme court had to
decide the scope of article I, section 22, and whether the ordinance “passes muster under it.” [CITATION].
The court found that the difference in the language in article I, section 22 from the language in
the second amendment “were intended to broaden the scope of the right to arms from a collective
one applicable only to weapons traditionally used by a regulated militia [citation], to an
individual right covering a wider variety of arms.” [CITATION]. However, “the explicit recognition
of ‘the police power’ [is] a limitation on the liberty the provision affords.” [CITATION]. Based on the
report of The Bill of Rights Committee at the Constitutional Convention, our supreme court
recognized that “the possession and use of arms is subject to an extraordinary degree of control
under the police power.” (Internal quotation marks omitted.) [CITATION]. The committee report
described regulatory measures “that had been approved in other States as not infringing on
individual right to arms” including “a total prohibition of ‘the sale of some weapons in some
circumstances.’ ” [CITATION].
¶ 95 Our supreme court acknowledged, similarly to defendant’s argument in this case, that
"[t]he meaning of a constitutional provision depends, of course, on the common understanding of
the citizens who, by ratifying the Constitution, gave it life.” [CITATION]. However, the court also
found (and defendant did not address) that “[t]his understanding *** is best determined by
referring to the common meaning of the words used.” [CITATION]. Our supreme court found
that the plain language of article I, section 22, “leaves the right to bear any type of arms subject
to the police power” and “belied any assertion that a majority of the voters must have interpreted
the plain words of the provision as ruling out any specific regulatory measure.” [CITATION]. “The
official explanation which all voters received also left considerable leeway for regulation of guns
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by stating that under section 22 ‘the right of the citizen to keep and bear arms cannot be
infringed, except as the exercise of this right may be regulated by appropriate laws to safeguard
the welfare of the community.’ [CITATION]” Id. The court found that this interpretation is
“consistent with the interpretation of the provision advanced by the delegates who voted to adopt
it.” Id. In rejecting an argument that the “police power” in article I, section 22 permitted the
regulation of all classes of firearms but not a complete prohibition of any class of firearm, our
supreme court stated that it “has long recognized that the police power comprehends laws
‘restraining or prohibiting anything harmful to the welfare of the people’ [CITATION] and no
convincing evidence has been produced that the voters ascribed a different meaning to the term
in the context of section 22.” (Emphasis added.) Id. at 496.
¶ 96 Because the issue in [CITATION] was a complete ban on handguns, our supreme court held
that, “[b]ased on the floor debates and the official explanation, as well as on the language of the
provision, it is apparent to us that section 22, as submitted to the voters, meant that a ban on all
firearms that an individual citizen might use would not be permissible, but a ban on discrete
categories of firearms, such as handguns, would be.” Id. at 498. Notably, the court rejected an
argument that “there is no principle which permits the complete abridgment of one form of
constitutionally protected behavior whenever other forms of behavior which enjoy the same form
of protection and lead to a substantially similar end are permitted.” (Emphasis added.) Id. at 499.
¶ 97 We interpret [CITATION] to mean the plain language of article I, section 22 does not rule
out a complete and permanent abridgment of possession of firearms by felons. The [CITATION]
court considered whether the ordinance at issue was a proper exercise of the police power.
Although a different statute is involved here, apropos of this case our supreme court found that
“the right to arms secured by the Illinois Constitution, which did not exist prior to 1970, is
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subject, as we have explained, to substantial infringement in the exercise of the police power
even though it operates on the individual level.” Id. at 509. Subsequently, the Third District of
this court held that “the AHC *** statute[ is] a proper exercise of the state’s police power, which
allows the state to exert, through legislation, control over the dangers posed by firearms and the
people who might use them to do harm.” [CITATION], ¶ 43.
¶ 98 We agree that the AHC statute is a proper exercise of the state’s police power that is
contemplated by the “grant [of] an ‘extraordinary degree of control’ over the use of firearms” in
article I, section 22. [CITATION], ¶ 42 (quoting [CITATION]). To any extent [CITATION] might be read to hold the AHC statute is a proper exercise of the
state’s police power on violent felons, we disagree; and, regardless, the point of its holding is
that the police power “allows the state to exert, through legislation, control over the dangers
posed by firearms and the people who might use them to do harm.” [CITATION], ¶ 43. The legislature could prohibit felons from possessing firearms to safeguard the
welfare of the community. [CITATION], ¶ 30 (“nothing in article I, section
22, of the Illinois Constitution suggests that the right to bear arms is unlimited and bars the State
from prohibiting felons from bearing arms.”), see also [CITATION], ¶ 53 (“is a proper exercise of police power, and therefore defendant has not
shown that the statute violates the Illinois Constitution on its face or as applied to him.”).
¶ 99 The AHC statute is constitutional as applied to defendant and on its face under article I,
section 22, of the Illinois constitution.
¶ 100 CONCLUSION
¶ 101 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 102 Affirmed.
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NOTICE
IL App (4th) 240315-U FILED
This Order was filed under September 3, 2024
Supreme Court Rule 23 and is NO. 4-24-0315 Carla Bender
not precedent except in the
th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Tazewell County
LUCAS S. THOMAS, ) No. 22CF538
Defendant-Appellant. )
) Honorable
) Christopher R. Doscotch,
) Judge Presiding.
PRESIDING JUSTICE CAVANAGH delivered the judgment of the court.
Justices Steigmann and Grischow concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding the Illinois armed habitual criminal statute
does not violate the United States Constitution.
¶2 In November 2023, defendant, Lucas S. Thomas, was sentenced to 19 years’
imprisonment following his guilty plea to being an armed habitual criminal (720 ILCS
5/24-1.7(a) (West 2022)). On appeal, defendant argues the armed habitual criminal statute
violates the second amendment (U.S. Const., amend. II) on its face pursuant to the United States
Supreme Court’s decision in [CITATION]. We affirm.
¶3 I. BACKGROUND
¶4 In October 2022, the State charged defendant by indictment with (1) being an
armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2022)) for possessing a firearm after having been convicted of residential burglary in Woodford County case No. 08-CF-82 and
unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333; (2) unlawful
possession of a weapon by a felon ([CITATION]) for possessing said firearm after having been
convicted in Peoria County case No. 11-CF-333; (3) aggravated domestic battery ([CITATION])
for intentionally strangling a family or household member; (4) aggravated battery ([CITATION])
for holding a gun, a deadly weapon, to the head of another and thereby making
contact of an insulting or provoking nature; (5) domestic battery ([CITATION]) for causing
[SEGMENT 28]
bodily harm by striking a family or household member; and (6) resisting a peace officer
([CITATION]) for refusing to place his hands behind his back, tensing up, and struggling with an
arresting officer, thereby causing the officer to be injured.
¶5 In July 2023, defendant entered into a partially negotiated plea agreement wherein
he pleaded guilty to the armed habitual criminal charge. In exchange, the State dismissed the
remaining charges, agreed not to file any uncharged pending cases against defendant, and agreed
not to refer any cases regarding defendant for federal prosecution. However, the State reserved
the right to utilize any uncharged conduct and the dismissed charges in aggravation at
sentencing. The State proffered a factual basis, citing defendant’s aforementioned felony
convictions from Woodford and Peoria counties. Following the issuance of a search warrant,
officers discovered a handgun in defendant’s bedroom. Additionally, a search of defendant’s
phone revealed a photograph of him holding said handgun. The trial court accepted defendant’s
plea as knowing and voluntary.
¶6 A sentencing hearing was held in November 2023. A presentence investigation
report (PSI) was admitted without objection. According to the PSI, defendant had been convicted
of residential burglary in 2008 and twice convicted of unlawful possession of a weapon by a
felon in 2011 and 2015, respectively.
¶7 The State introduced into evidence the video showing defendant’s arrest and the
recovery of the firearm and the testimony of detective Robert Vester of the East Peoria Police
Department. Vester testified, among other things, to discovering the firearm in defendant’s
bedroom, to investigating defendant for selling stolen all-terrain vehicles, and that, according to
defendant, he had purchased the firearm at issue in St. Louis, Missouri, for self-defense.
¶8 Defendant presented letters from family and friends in mitigation. A neighbor and
friend testified defendant was not a violent person and only obtained the firearm for self-defense.
¶9 Defendant gave a statement in allocution wherein he acknowledged his mistake in
purchasing the firearm. He argued a convicted felon should not lose his rights under the second
amendment and contended he never used or brandished the firearm but was the victim of two
other individuals threatening him with a firearm.
¶ 10 The trial court considered the PSI, evidence presented in aggravation and
mitigation, defendant’s statement in allocution, arguments from the parties, the statutory and
nonstatutory factors in aggravation and mitigation, the history and character of defendant, and
the seriousness of the offense in light of the objective of restoring defendant to useful citizenship.
The court noted the firearm had a “40-round extended clip” and a “green laser tag site,”—
characteristics typically not found on a weapon used merely for self-defense. Defendant
interjected that those items came with the weapon when he bought it. The court rebutted that
defendant, nonetheless, bought it that way. The court sentenced defendant to 19 years’
imprisonment. Defendant filed a motion to reconsider sentence, arguing the court failed to
consider certain statutory factors in mitigation and that his sentence was excessive. The court
denied the motion.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 Defendant claims the armed habitual criminal statute is unconstitutional on its
face as violative of the second amendment. See [CITATION], 2018 IL 121939, ¶ 49 (“Defendants
convicted under a facially unconstitutional statute may challenge the conviction at any time, even
after a guilty plea, because the state or government had no power to impose the conviction to
begin with.”). We disagree. The Criminal Code of 2012 (Code) (720 ILCS 5/1-1 et seq. (West
2022)) provides as follows:
“(a) A person commits the offense of being an armed habitual criminal if
he or she receives, sells, possess, or transfers any firearm after having been
convicted a total of 2 or more times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use
of a weapon; aggravated discharge of a firearm; vehicular hijacking;
aggravated vehicular hijacking; aggravated battery of a child as described
in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05; intimidation;
aggravated intimidation; gunrunning; home invasion; or aggravated
battery with a firearm as described in Section 12-4.2 or subdivision (e)(1),
(e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled substances Act or the
Cannabis Control Act that is punishable as a Class 3 felony or higher.”
ILCS 5/24-1.7 (West 2022).
¶ 14 Accordingly, defendant’s stipulated convictions of residential burglary (a forcible
felony pursuant to section 2-8 of the Code (id. § 2-8)) in Woodford County case No. 08-CF-82
and unlawful possession of a weapon by a felon in Peoria County case No. 11-CF-333 were
qualifying convictions under the armed habitual criminal statute.
¶ 15 Defendant relies on the United States Supreme Court’s decision in [CITATION]. In
[CITATION], the Supreme Court held, “When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that conduct,” and the government
“must then justify its regulation by demonstrating that [the regulation] is consistent with the
Nation’s historical tradition of firearm regulation.” [CITATION], 597 U.S. at 24 (2022).
¶ 16 In response to defendant’s facial challenge, the State cites numerous appellate
court decisions relevant to the issue on appeal: [CITATION],
¶¶ 37-39 (finding Bruen did not apply to the defendant’s as applied constitutional challenge
under the second amendment of the unlawful use of a weapon by a felon statute); [CITATION],
¶¶ 14-22 (finding the armed habitual criminal statute did not
violate the second amendment pursuant to Bruen); [CITATION],
¶¶ 19-29 (finding Bruen did not apply to the defendant’s as applied challenge to the unlawful
possession of a weapon by a felon statute); [CITATION],
¶¶ 143-158 (finding Bruen did not apply to the defendant’s as applied challenge to the unlawful
possession of a weapon by a felon statute); [CITATION],
¶¶ 51-60 (finding the armed habitual criminal statute did not violate the second amendment
pursuant to Bruen); [CITATION], ¶¶ 18-22 (finding the firearm
owner’s identification card requirement constitutional post-Bruen); [CITATION], ¶¶ 11-16 (finding Bruen did not apply to the defendant’s facial
constitutional challenge under the second amendment of the unlawful use of a weapon by a felon
statute).
¶ 17 Defendant counters that the cases cited by the State were wrongly decided and
notes the appellate court in [CITATION], and [CITATION], found the second amendment’s plain language presumptively
protected convicted felons. Furthermore, the cases cited by the State were all decided without the
benefit of the Supreme Court’s decision in [CITATION].
¶ 18 In [CITATION], the defendant was convicted of being an armed habitual criminal.
[CITATION], ¶ 1. On appeal, the defendant contended the armed habitual
criminal statute as applied to him “impermissibly criminalized his simple possession of a firearm
exclusively on the basis of his two prior nonviolent felony convictions.” Id. ¶ 55. Following the
framework from Bruen, the court in [CITATION] first considered whether the plain language of the
second amendment protected the defendant’s right to keep and bear arms. Id. ¶¶ 69, 79-87. The
[CITATION] court concluded the defendant had been convicted under the armed habitual criminal
statute for possessing a firearm after having been twice convicted of two nonviolent felonies. Id.
¶ 86. After observing the Supreme Court, in [CITATION], held “to keep arms” simply meant to “have weapons,” the [CITATION] court reasoned to
“have,” defined as “to be in possession of,” meant the second amendment’s plain language
presumptively protected the defendant’s conduct of possessing a firearm. (Internal quotation
marks omitted.) [CITATION]. The court then went on to determine
the armed habitual criminal statute was consistent with the nation’s tradition of firearm
regulation. [CITATION]
¶ 19 The court in [CITATION], adopted the reasoning in [CITATION] and found “the second
amendment’s plain language does not exclude felons.” [CITATION]. Similarly, the [CITATION] court also concluded the armed habitual criminal statute was consistent with
the nation’s tradition of firearm regulation. [CITATION]
¶ 20 In [CITATION], the defendant was charged with possessing a firearm while subject to a
domestic violence restraining order. [CITATION]. The court noted,
where “a restraining order contains a finding that an individual poses a credible threat to the
physical safety of an intimate partner, that individual may—consistent with the Second
Amendment—be banned from possessing firearms while the order is in effect.” [CITATION].
[SEGMENT 29]
Moreover, “our Nation’s firearm laws have included provisions preventing individuals who
threaten physical harm to others from misusing firearms.” [CITATION]. The court went on to clarify that
“the Second Amendment permits more than just those regulations identical to ones that could be
found in 1791.” [CITATION]. “A court must ascertain whether the new law is ‘relevantly
similar’ to laws that our tradition is understood to permit.” [CITATION]. The [CITATION] court rejected
the notion that the defendant could be disarmed “simply because he is not ‘responsible.’ ” [CITATION]. The court noted that the Heller and Bruen decisions had used the term “responsible” to
“describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right,”
but the term was never defined to reveal those who would be considered “not ‘responsible.’ ” [CITATION]
¶ 21 In essence, defendant asks that we, like the courts in [CITATION] and [CITATION], find his
mere possession of a firearm was presumptively protected by the second amendment. Then,
unlike in [CITATION] and Travis, but following guidance from Rahimi, he asks us to find the armed
habitual criminal statute is inconsistent with the nation’s tradition of firearm regulation, and,
thus, unconstitutional. For the reasons that follow, we are unpersuaded by defendant’s arguments
on appeal. See [CITATION]
App (1st) 162808, ¶ 44 (stating the “defendant, as the appellant, bears the burden of persuasion
as to [his] claim of error”).
¶ 22 This court, in [CITATION], 2023 IL App (4th) 221113-U, ¶ 12, stated:
“ ‘The constitutionality of a statute is analyzed under well-settled
principles. Statutes are presumed constitutional, and to rebut that presumption, the
party challenging a statute’s constitutionality has the burden of establishing a
clear violation. [Citation.] A party raising a facial challenge to a statute faces a
particularly heavy burden. [Citation.] A statute will be deemed facially
unconstitutional only if there is no set of circumstances under which the statute
would be valid. [Citation.] The particular facts related to the challenging party are
irrelevant. [Citation.] If it is reasonably possible to construe the statute in a way
that preserves its constitutionality, we must do so.’ ” (quoting [CITATION],
IL 125889, ¶ 10).
¶ 23 In [CITATION], we cited [CITATION], 2023 IL App (1st) 220328, ¶ 37, for the proposition that
“[t]he Bruen Court could not have been more clear that its newly announced test applied only to
laws that attempted to regulate the gun possession of law-abiding citizens, and not felons like
[the] defendant.” (Internal quotation marks omitted.) [CITATION], 2023 IL App (4th) 221113-U, ¶ 14.
Bruen specifically upheld an earlier statement from Heller that courts should not “ ‘cast doubt on
longstanding prohibitions on the possession of firearms by felons.’ ” Bruen, 597 U.S. at 81
(Kavanaugh, J., concurring, joined by Roberts, C.J.) (quoting Heller, [CITATION]). We find
nothing in defendant’s arguments that would persuade us to believe that previous decisions—
including our own—finding Bruen does not apply to felons were incorrect. As a convicted felon,
Bruen does not apply to defendant. See, e.g., [CITATION].
¶ 24 Additionally, Rahimi does not help defendant here because as the Supreme Court
explained, “Heller never established a categorical rule that the Constitution prohibits regulations
that forbid firearm possession in the home. In fact, our opinion stated that many such
prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are
‘presumptively lawful.’ ” Rahimi, [CITATION] (quoting Heller, [CITATION]). Thus, Rahimi does not support the proposition defendant propounds that he is
presumptively protected under the second amendment; to the contrary, the armed habitual
criminal statute prohibiting defendant, a convicted felon, from possessing a firearm is
presumptively lawful. Id. Accordingly, defendant has failed to show the armed habitual criminal
statue is facially unconstitutional.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the trial court’s judgment.
¶ 27 Affirmed.
2024 IL App (1st) 221921-U
Nos. 1-22-1921 & 1-23-0620 (consolidated)
THIRD DIVISION
August 14, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) Nos. 92 CR 19997, 95 CR
) 28637
JOSEPH LINZY, )
) Honorable
Defendant-Appellant. ) John F. Lyke, Jr. and
) Michael J. Kane,
) Judges, presiding.
JUSTICE D. B. WALKER delivered the judgment of the court.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s denial of defendant’s petitions.
¶2 Defendant Joseph Linzy 1 appeals the trial court’s denial of his petitions filed pursuant to
section 2-1401 of the Code of Civil Procedure (Code) 735 ILCS 5/2-1401 (West 2022).
1
Defendant’s name is listed as “Joseph Linzy” in case number 1-22-1921, and “Joe Linzy” in
case number 1-23-0620. Nos. 1-22-1921 & 1-23-0620 (consolidated)
Defendant’s petitions challenged his 1992 and 1995 convictions for unlawful use of a weapon by
a felon (UUWF) as unconstitutional under the Second Amendment. On appeal, defendant contends
that the trial court erred in denying his petitions because (1) the UUWF statute is unconstitutional
on its face where there is no founding-era evidence that supports a permanent revocation of the
right to keep and bear arms solely based on a person’s status, and (2) the statute is unconstitutional
as applied to him because the underlying felony he committed was a non-violent offense. For the
following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Defendant pleaded guilty to UUWF in case number 92 CR 19997 on November 5, 1992.
In that case, the State presented the following as the factual basis for defendant’s guilty plea. On
August 6, 1992, police officers went to defendant’s residence while investigating a fatal shooting.
There, they recovered a semiautomatic pistol under a mattress in a bedroom. Defendant told
officers that he had been drinking and shooting the night before. He was with a person named
“Tion,” and Tion left the gun with defendant for safekeeping. The parties stipulated that defendant
had received a three-year sentence in case number 90 CR 4379 for the manufacture and delivery
of a controlled substance, a felony. After accepting defendant’s plea, the trial court sentenced him
to two years’ imprisonment.
¶5 Defendant pleaded guilty to UUWF in case number 95 CR 28637 on January 4, 1996. The
factual basis for defendant’s plea indicated that police officers responded to a call about an armed
man. At the location, they encountered defendant who was standing with a firearm. He told officers
that he needed the weapon for protection. The State presented evidence that defendant had received
three years of probation for a 1990 felony offense, three years’ imprisonment in 1990 for the
manufacture and delivery of a controlled substance, six months of conditional discharge in 1992
Nos. 1-22-1921 & 1-23-0620 (consolidated)
for a misdemeanor conviction, and two years’ imprisonment for the 1992 UUWF conviction. After
accepting defendant’s plea, the trial court sentenced him to three years’ imprisonment.
¶6 After defendant pleaded guilty in the 1995 case, he was charged with the murder of Doris
Harris and concealment of a homicidal death. See [CITATION]. After a jury trial, he was convicted of both offenses and sentenced to concurrent
terms of 80 and 5 years in prison, respectively. Id. This court affirmed his convictions on direct
appeal. Id. ¶ 34.
¶7 On September 2, 2022, defendant filed a section 2-1401 petition seeking relief from
judgment in his 1995 UUWF case. In his petition, he alleged that, pursuant to [CITATION],
both his 1992 and 1995 UUWF convictions were unconstitutional and should be
[SEGMENT 30]
vacated. On September 12, 2022, while this petition was pending, defendant filed another section
2-1401 petition which sought relief from his UUWF conviction in the 1992 case. The second
petition raised the same claim that the UUWF statute was unconstitutional under [CITATION].
¶8 On November 1, 2022, the trial court dismissed the second petition. The court found that
[CITATION] did not apply, and therefore defendant’s 1992 conviction was constitutional. The court
stated that it did not have jurisdiction to consider defendant’s claim regarding his 1995 UUWF
conviction because “section 2-1401 petitions must be filed in the same proceeding [in which] that
judgment was entered.” Defendant appealed the dismissal of his second petition.
¶9 Following the dismissal of defendant’s petition in the 1992 case, the State filed a motion
to dismiss his petition in the 1995 case. The State argued that the petition should be dismissed
because 1) the trial court had already determined that defendant’s UUWF conviction was
constitutional, and 2) the petition was untimely. On February 24, 2023, the trial court dismissed
Nos. 1-22-1921 & 1-23-0620 (consolidated)
the petition and defendant appealed. Defendant’s appeals in the 1992 and 1995 UUWF cases were
consolidated into the instant appeal.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant contends that the trial court erred in dismissing his section 2-1401
petitions. Section 2-1401 establishes a comprehensive, statutory procedure that allows for the
vacatur of a final judgment more than 30 days after its entry. See 735 ILCS 5/2-1401 (West 2022).
Section 2-1401 provides a civil remedy that extends to criminal cases as well as to civil cases.
[CITATION]. A 2-1401 petition may be dismissed if, taking its
allegations as true, it does not state a meritorious defense. [CITATION].
“Like a complaint, the petition may be challenged by a motion to dismiss for its failure to state a
cause of action or if, on its face, it shows that the petitioner is not entitled to relief.” [CITATION]. The trial court’s dismissal of a section 2-1401
petition is reviewed de novo. [CITATION].
¶ 12 A section 2-1401 petition must be filed no later than two years after entry of the final order
or judgment. 735 ILCS 5/2-1401(c) (West 2022). Our supreme court, however, recognized an
exception to the two-year limitations period if the petition alleged a void judgment. [CITATION]. A void judgment may be challenged at any time, and such a
challenge is not subject to forfeiture or other procedural restraints. [CITATION]. Relevant here, a judgment is deemed void ab initio when it is based on a statute that
is facially unconstitutional. Id. “When a statute is declared facially unconstitutional and void ab
initio, it means that the statute was constitutionally infirm from the moment of its enactment and,
therefore, unenforceable.” [CITATION].
Nos. 1-22-1921 & 1-23-0620 (consolidated)
¶ 13 Here, the State argues that defendant’s petitions were properly dismissed because they were
filed approximately 30 years after his convictions in the 1992 and 1995 cases. Defendant, however,
argues that his convictions were based on the UUWF statute, which he alleges is unconstitutional
on its face following the United States Supreme Court’s ruling in [CITATION]. A statute is void ab initio under a new constitutional
rule if the new rule renders the statute facially unconstitutional. [CITATION]. Void judgments may be challenged on collateral review for the first time on appeal.
[CITATION]
¶ 14 Moreover, defendant’s claim challenges his conviction under what he alleges is a facially
unconstitutional statute. His claim does not contradict the terms of his guilty plea. As such, his
guilty plea does not serve as a bar to this appeal. [CITATION]. Accordingly, we will consider defendant’s claims.
¶ 15 Defendant contends that the UUWF statute is unconstitutional on its face where there is no
founding-era evidence supporting a permanent revocation of the right to keep and bear arms based
solely on a person’s status. Rather, defendant argues, such evidence supports only bans based on
a person’s actual dangerousness or violent criminal history. Furthermore, these bans did not apply
to all firearms at all times and could be removed if a person meets objective criteria. Defendant
also argues that the UUWF statute is unconstitutional as applied to him, where the underlying
felony for his UUWF conviction was a non-violent offense. Since there was no evidence at the
time supporting his actual dangerousness, there was no historical basis for prohibiting his
possession of a firearm.
¶ 16 Since the Supreme Court’s decision in [CITATION], there have been numerous challenges to the
constitutionality of both federal and state statutes prohibiting felons from possessing firearms. See
Nos. 1-22-1921 & 1-23-0620 (consolidated)
[CITATION] (noting the “flurry of filings across the country”
challenging the federal statute); [CITATION] (noting that
“various jurisdictions have grappled with this issue”). However, there is a consensus among federal
and state courts that such statutes are constitutional after Bruen. See [CITATION]
(finding that “the overwhelming majority of courts that have considered the issue” have concluded
that the federal statute remains constitutional); [CITATION] (finding
that the “vast majority” of courts have determined that statutes prohibiting nonviolent felons from
possessing weapons are constitutional under Bruen).
¶ 17 In [CITATION], the defendant was convicted of being an armed habitual criminal under section
24-1.7 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-1.7 (West 2016)). Id. ¶ 1.
The defendant was charged with the offense based on his knowing and intentional possession of a
firearm after having been previously convicted of two qualifying felonies. Id. ¶ 3. His prior felony
convictions included one for the manufacture or delivery of narcotics, and one for unlawful
possession of a weapon by a felon. Id.
¶ 18 The defendant argued, for the first time on appeal, that under the new test established in
Bruen, the armed habitual criminal statute violated the Second Amendment as applied to him.
Id. ¶ 55. Although the State argued that the defendant forfeited the issue, the reviewing court
considered the defendant’s claim where the record below was sufficiently developed. ¶¶ 56, 60.
¶ 19 The court acknowledged that Bruen “announced a new analytical framework for evaluating
the constitutionality of firearm regulations.” Id. ¶ 68. In Bruen, the Supreme Court held that “the
standard for applying the Second Amendment is as follows: When the Second Amendment’s plain
text covers an individual’s conduct, the Constitution presumptively protects that conduct. The
government must then justify its regulation by demonstrating that it is consistent with the Nation’s
Nos. 1-22-1921 & 1-23-0620 (consolidated)
historical tradition of firearm regulation.” [CITATION]. To meet this burden, the
government must identify “historical precedent from before, during and even after the founding”
that shows “a comparable tradition of regulation.” [CITATION].
¶ 20 The court in [CITATION] first considered whether the plain text of the Second Amendment
covered the defendant’s conduct. It noted that the defendant committed the armed habitual criminal
offense by possessing a firearm after having been convicted of two qualifying offenses. [CITATION].
Since the plain language of the Second Amendment protects a
person’s right to keep and bear arms, the court found that the defendant’s possession of a firearm
was “ ‘presumptively constitutional.’ ” [CITATION]. The court noted
that at this stage of the analysis, the defendant’s status as a felon was “irrelevant.” [CITATION].
¶ 21 Instead, courts should consider the defendant’s felon status when analyzing “the nation’s
historical tradition of firearm regulation.” [CITATION]. Upon a thorough review of the historical
restrictions for possession of firearms, the [CITATION] court concluded that “such categorical
restrictions [were] inextricably linked to the notion of ‘law abiding citizens.’ ” [CITATION].
¶ 22 The court noted that “[r]estrictions on the possession of firearms date back to England in
the 1600’s when the government repeatedly disarmed individuals whose conduct reflected that
they could not be trusted to abide by ‘the sovereign and [his] dictates.’ ” [CITATION]. In Colonial America,
legislatures disarmed categories of individuals who were not trusted to obey the law, including
Native Americans and Catholics. [CITATION].
¶ 23 Furthermore, punishments imposed in the Colonial period showed “the widespread
acceptance of the legislatures’ authority to disarm felons” for certain nonviolent crimes. [CITATION].
Specifically, legislatures “prescribed death or forfeiture of a person’s entire estate (presumably
[SEGMENT 31]
Nos. 1-22-1921 & 1-23-0620 (consolidated)
including firearms) as punishment” for nonviolent crimes such as deceit, forgery, and the wrongful
taking of property. [CITATION]
¶ 24 Additionally, legislatures disarmed certain groups not because they were viewed as
dangerous or violent, but because they were “presumed unwilling to obey the law.” [CITATION] Felons
were understood as one such group. [CITATION] Citing to scholarship on the Second Amendment, the
Brooks court found that the “majority of legal historians” agreed that the right to bear arms “turn[s]
on one’s law-abiding character.” [CITATION] The court found no historical requirement that an
individual be deemed dangerous before prohibiting him or her from possessing a firearm. [CITATION]
¶ 25 The court held that the armed habitual criminal statute, which prohibits the possession of
firearms by convicted felons, was “consistent with the national historical tradition of firearm
regulation.” [CITATION] Therefore, the statute was constitutional as applied to the defendant. [CITATION]
¶ 26 We agree with the reasoning in [CITATION]. Although [CITATION] addressed the constitutionality
of the armed habitual criminal statute, and the provision challenged here is the UUWF statute, the
question of whether the Second Amendment allows legislatures to categorically ban non-violent
convicted felons from possessing firearms is the same one defendant raises in this case.
¶ 27 Defendant argues, however, that we should not follow [CITATION] because that case cited laws
that disarmed politically unpopular groups, including religious, racial, and political minorities, and
thus should not be considered. He also contends that those historic laws sought to prevent
insurrection, rebellion, resistance to westward expansion, or “pernicious animus,” a purpose unlike
that of the UUWF statute.
¶ 28 We find [CITATION], a recent Northern District of Illinois case, persuasive on these points. In
[CITATION], the defendant challenged the analogous federal statute prohibiting felons from
possessing firearms, 18 U.S.C.A. § 922(g)(1). [CITATION] The court joined the
Nos. 1-22-1921 & 1-23-0620 (consolidated)
majority of courts in the district finding that § 922(g)(1) was constitutional on its face under
[CITATION].
¶ 29 The court acknowledged that historic laws disarming categories of people were enacted to
prevent sedition and insurrection, but disagreed with the defendant that they were thus improper
analogues to § 922(g)(1), which imposed “a blanket—and permanent—ban on people who have
been convicted of a felony.” [CITATION]. The court reiterated that [CITATION] “ ‘requires only that the
government identify a well-established and representative historical analogue, not a historical
twin.’ ” (Emphasis in the original.) [CITATION]. Historical regulations
included “extensive and exhaustive penalties for felonies [including] outright capital punishment
and the forfeiture of all property***.” [CITATION].
¶ 30 The court further found that the respective laws placed a comparable burden upon the right
to bear arms. [CITATION]. History indicated that certain offenders could obtain permission to possess
firearms. [CITATION]. For example, Catholics were allowed to retain their arms if they swore an oath of
allegiance. [CITATION]. Likewise, a convicted felon may regain his or her right to possess a firearm through
expungement of his conviction or pardon. [CITATION].
¶ 31 The court also found no historical basis for the individualized assessment of dangerousness
before prohibiting a felon from possessing a firearm. [CITATION]. Instead, historical analogues
supported “ ‘legislative authority to disarm persons convicted of felonies, regardless of whether
the conviction involved a use (or attempted use) of force.’ ” [CITATION]. The district court therefore found § 922(g)(1) constitutional as
applied to the defendant. [CITATION].
¶ 32 Here, defendant cites [CITATION], in which the federal court held, contrary to the [CITATION] court,
that § 922(g)(1) was unconstitutional as applied to a defendant who committed a nonviolent felony.
Nos. 1-22-1921 & 1-23-0620 (consolidated)
We note that the judgment in Range has been vacated and the case “remanded to the United States
Court of Appeals for the Third Circuit for further consideration in light of United States v. Rahimi,
602 U.S. __ (2024).” [CITATION]
Nonetheless, we choose to follow the “vast majority” of courts finding that statutes prohibiting
nonviolent felons from possessing firearms are constitutional under Bruen. [CITATION], ¶ 79; see also [CITATION], *6 (disagreeing with cases finding such
statutes unconstitutional and instead joining “the majority of courts in this District and across the
nation” finding otherwise).
¶ 33 In summary, legislatures have historically banned categories of individuals, particularly
felons, from possessing firearms based on a presumption of untrustworthiness or risk of danger.
Moreover, prohibiting felons from possessing firearms is a comparable burden to punishments
historically imposed upon those committing felonies. As was the case for certain groups
dispossessed of firearms in the past, felons retain an opportunity to possess firearms under the
UUWF statute. A convicted felon may possess a firearm if he or she “has been granted relief by
the Director of the Illinois State Police under Section 10 of the Firearm Owners Identification Card
Act.” See 720 ILCS 5/24-1.1(a) (West 2022). Finally, courts have found no historical requirement
that an individualized assessment of a felon’s dangerousness be made before prohibiting him or
her from possessing a firearm. For the reasons set forth in [CITATION] and [CITATION], we find that the
UUWF statute is constitutional on its face and as applied to defendant in this case.
¶ 34 III. CONCLUSION
¶ 35 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 36 Affirmed.
- 10 -
2024 IL App (1st) 231051-U
No. 1-23-1051
Order filed August 12, 2024
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 17 CR 1246
)
ARTEZ McNEAL, ) Honorable
) Ursula Walowski,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of defendant’s postconviction petition is affirmed
where defendant has abandoned the claim of ineffective assistance of counsel which
was raised in his petition and his claim on appeal that the armed habitual criminal
statute is facially unconstitutional under the second amendment is without merit.
¶2 Defendant Artez McNeal appeals from an order of the circuit court of Cook County
granting the State’s motion to dismiss his petition for relief filed under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). On appeal, defendant has abandoned No. 1-23-1051
the claim of ineffective assistance of counsel which was raised in his postconviction petition and,
instead, solely contends that the armed habitual criminal statute under which he was convicted
(720 ILCS 5/24-1.7 (West 2016)) is facially unconstitutional under the second amendment of the
United States Constitution (U.S. Const., amend. II). For the following reasons, we affirm.
¶3 Following a 2017 jury trial, defendant was convicted of being an armed habitual criminal
(AHC) and sentenced to a term of 10 years’ imprisonment. The two predicate felony convictions
underlying the AHC conviction were defendant’s 2009 conviction for aggravated vehicular
hijacking and his 2013 conviction for manufacture or delivery of a controlled substance. On direct
appeal, this court affirmed defendant’s conviction. [CITATION].
¶4 On December 7, 2020, defendant filed a pro se postconviction petition under the Act
raising a single claim of ineffective assistance of trial counsel for failing to investigate and call a
particular witness at trial who may have provided exonerating testimony. Defendant attached to
his petition an affidavit from that witness averring that she never gave a written or verbal statement
against defendant and that counsel never contacted her to confirm or deny if she made a statement.
The circuit court appointed counsel to represent defendant and advanced his petition to the second
stage of proceedings under the Act.
¶5 On March 16, 2023, the State moved to dismiss defendant’s postconviction petition arguing
[SEGMENT 32]
that counsel’s decision regarding which witnesses to call at trial was a matter of trial strategy that
was entitled to deference and generally immune from claims of ineffective assistance. The State
pointed out that there was no evidence that the proposed witness ever provided a statement against
defendant, and no written or verbal statement from her had been introduced at trial. Consequently,
No. 1-23-1051
the proposed witness’s testimony would not have changed the outcome of trial and defendant had
not been prejudiced by counsel’s decision not to call her.
¶6 Following a hearing on May 31, 2023, the circuit court granted the State’s motion and
dismissed defendant’s postconviction petition.
¶7 On appeal, defendant has abandoned his claim of ineffective assistance of trial counsel
raised in his postconviction petition. Instead, for the first time on appeal, he solely contends that,
in light of the United States Supreme Court’s decision in [CITATION], the AHC statute under which he was convicted is facially
unconstitutional under the second amendment of the United States Constitution (U.S. Const.,
amend II).
¶8 Generally, a claim not raised in a postconviction petition cannot be raised for the first time
on appeal from the dismissal of that petition. [CITATION]. However, a challenge to a statute as facially unconstitutional is exempt from forfeiture and may
be raised at any time. [CITATION]. Here, the parties agree, and we
concur, that the record on appeal is sufficiently developed to allow this court to address defendant’s
constitutional challenge. See id. Whether the AHC statute is constitutional is a question of
law which we review de novo. [CITATION].
¶9 The AHC statute provides:
“(a) A person commits the offense of being an armed habitual criminal if he or she
receives, sells, possesses, or transfers any firearm after having been convicted a total of 2
or more times of any combination of the following offenses:
No. 1-23-1051
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a
weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated
vehicular hijacking; aggravated battery of a child as described in Section 12-4.3 or
subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation;
gunrunning; home invasion; or aggravated battery with a firearm as described in
Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled Substances Act or the Cannabis
Control Act that is punishable as a Class 3 felony or higher.
(b) Sentence. Being an armed habitual criminal is a Class X felony.” 720 ILCS
/24-1.7 (West 2016).
¶ 10 Defendant argues that the AHC statute is unconstitutional under the second amendment on
its face. A facial challenge is “the most difficult challenge to mount.” [CITATION], ¶ 25.
Statutes are presumed constitutional. [CITATION], ¶ 10. To rebut that
presumption and establish that a statute is facially unconstitutional, the party challenging the
constitutionality must demonstrate that there are no circumstances under which the statute would
be valid. Id. “If it is reasonably possible to construe the statute in a way that preserves its
constitutionality, we must do so.” Id.
¶ 11 The second amendment provides: “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,
amend. II. In 2008, the United States Supreme Court issued its decision in [CITATION],
Heller, in which it stated that the second amendment elevated “the right of law-abiding,
No. 1-23-1051
responsible citizens to use arms in defense of hearth and home.” [CITATION]. In 2010, the Court extended the right to keep and bear arms to the states
under the fourteenth amendment. [CITATION]. The Court
reiterated that its decision in [CITATION] “did not cast doubt on such longstanding regulatory measures
as ‘prohibitions on the possession of firearms by felons.’ ” Id. at 786 (quoting [CITATION]).
¶ 12 Following [CITATION] and [CITATION], courts developed a two-step analysis for evaluating
second amendment challenges to firearm regulations. See [CITATION], ¶ 11.
First, the courts considered whether the regulated activity fell within the scope of the second
amendment as it was originally understood. Id. If the government did not establish that the
regulated activity was outside the scope of the second amendment, the courts proceeded to the
second step and conducted a “means-end analysis.” (Internal quotation marks omitted.) Id. During
that step of the analysis, the courts weighed the severity of the regulation against the ends which
the government sought to achieve in enacting the regulation. Id.
¶ 13 However, in 2022 the Supreme Court issued [CITATION], in which it adopted a new analytical
framework for evaluating the constitutionality of firearm regulations. Id. ¶ 12 (citing [CITATION]). The Court condemned the means-end analysis. Id. (citing [CITATION]).
Rather, under [CITATION], where the second amendment’s plain text covers an individual’s conduct, the
conduct is presumptively protected. Id. (citing [CITATION]). To justify the regulation
of that conduct, the government must then demonstrate that the regulation “ ‘is consistent with the
Nation’s historical tradition of firearm regulation.’ ” Id. (quoting [CITATION]). To do so,
the government must point to historical precedent, focusing on what the founders understood the
No. 1-23-1051
second amendment to mean. [CITATION], ¶ 70 (citing Bruen, 597
U.S. at 27, 34-35).
¶ 14 Initially, the State responds that in this case we need not reach the analytical framework
that Bruen provided. The State notes that Bruen concerned a portion of a New York statute that
only issued licenses to carry a firearm outside one’s home or place of business to those who showed
that “proper cause” existed. [CITATION]. The Court differentiated New York’s “may-
issue” licensing regime from the majority of states that have “shall-issue” licensing regimes, where
the states issue a license whenever an applicant meets certain, objective requirements. Id. at 38
n.9. Bruen expressly stated that nothing in its decision “should be interpreted to suggest the
unconstitutionality” of any “shall-issue” licensing regime. Id.
¶ 15 Following Bruen, in [CITATION], this court rejected the defendant’s argument that the
aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a) (West 2020)) was facially
unconstitutional because it criminalized possessing a firearm if the possessor was not in
compliance with the Firearm Owners Identification (FOID) Card Act (430 ILCS 65/1 et seq. (West
2020)) or the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2020)) (Acts). [CITATION],
¶¶ 7, 19, 29-30. We found in [CITATION] that those Acts were “shall-issue”
licensing programs of the type that Bruen had approved, and, therefore, the aggravated unlawful
use of a weapon statute was not unconstitutional for criminalizing the possession of a firearm by
a person who was not in compliance with those Acts. Id. ¶¶ 14-30.
¶ 16 The State notes that those Acts prohibit convicted felons from obtaining a FOID card or
CCL. 430 ILCS 65/8(c) (West Supp. 2021); 430 ILCS 66/25(2) (West 2022). The State asserts that
we may therefore reject defendant’s facial challenge to the AHC statute without reaching any of
No. 1-23-1051
the analytical steps provided by Bruen because, like those Acts, the AHC statute prohibits felons
from carrying firearms. We are not convinced that [CITATION] and Bruen’s discussion of licensing
schemes should control here. See [CITATION] (rejecting the
State’s request to find Bruen inapplicable to the AHC statute based on Bruen’s endorsement of
shall-issue licensing regimes). In any case, the outcome of this appeal would not differ, as the AHC
statute is constitutional under Bruen’s analytical framework.
¶ 17 Thus, we turn to the analysis provided by Bruen. Again, the first question under Bruen is
whether the second amendment’s plain text covers the conduct at issue. [CITATION] If
it does, the second question is whether the State has demonstrated that the regulation comports
with our national historical tradition of firearm regulation. Id.
¶ 18 Here, defendant claims that the conduct prohibited by the AHC statute, possessing a
firearm, is covered by the plain text of the second amendment and therefore presumptively
[SEGMENT 33]
protected. We disagree. In [CITATION], the Supreme Court reiterated that the second amendment does
not grant an unrestricted right to carry firearms by all people at all times. Rather, it explained that:
“The Second Amendment guaranteed to ‘all Americans’ the right to bear commonly used
arms in public subject to certain reasonable, well-defined restrictions. [CITATION] Those restrictions, for example, limited the intent for which one could
carry arms, the manner by which one carried arms, or the exceptional circumstances under
which one could not carry arms, such as before justices of the peace and other government
officials.” Id.
¶ 19 In [CITATION], and Bruen, the Supreme Court expressly stated that the second
amendment protects the rights of “law-abiding citizens.” See [CITATION] (agreeing
No. 1-23-1051
that “law-abiding citizens” have a right to carry handguns for self-defense outside the home); see
also Heller, [CITATION] (second amendment elevated “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home” (emphasis added)); McDonald, [CITATION]
(reiterating that Heller “did not cast doubt on such longstanding regulatory measures as
prohibitions on the possession of firearms by felons” (internal quotation marks omitted)).
¶ 20 On that basis, this court recently rejected a substantially similar facial constitutional
challenge to the AHC statute that defendant presents here, concluding that Bruen did not apply to
laws that attempted to regulate firearm possession by felons. See [CITATION]. In [CITATION], we found it significant that the majority opinion in Bruen repeated
the phrase “law-abiding” no fewer than 13 times. We further found that Bruen did not indicate any
intent to expand the second amendment’s protection to citizens who are not “law-abiding.” Id.
Moreover, we noted that the explicit holding in Bruen was that the New York statute violated the
fourteenth amendment because it prevented “ ‘law-abiding citizens with ordinary self-defense
needs from exercising their right to keep and bear arms.’ ” Id. (quoting Bruen, [CITATION]). We
stated, “[w]e presume that the Supreme Court’s inclusion of ‘law-abiding’ in the holding is not
superfluous or irrelevant, especially given the Court’s repeated use of the phrase throughout the
Bruen opinion, as well as its prior decisions.” Id.
¶ 21 Therefore, in light of our holding that the AHC statute was facially constitutional in [CITATION],
defendant’s facial challenge to that statute in this case must fail. See [CITATION],
¶ 10 (“A statute will be deemed facially unconstitutional only if there is no set of circumstances
under which the statute would be valid.”).
No. 1-23-1051
¶ 22 Defendant points out that in Brooks, this court found that the defendant’s felon status was
“irrelevant” during the first step of its Bruen analysis and that the effect of the defendant’s prior
felony conviction on his second amendment right to possess a firearm was more appropriately
evaluated under the second step’s historical tradition analysis. [CITATION], ¶ 89. In Brooks, the defendant claimed that the AHC statute was unconstitutional “as applied to
him.” Id. ¶ 1. It is well-settled that facial and as-applied constitutional challenges are not
interchangeable. [CITATION], ¶ 36. “An as-applied challenge requires a showing
that the statute violates the constitution as it applies to the facts and circumstances of the
challenging party.” Id. Here, defendant raised only a facial challenge, which we determined above
is without merit.
¶ 23 Nevertheless, although we find it unnecessary to engage in a fulsome historical analysis, if
we were to do so, defendant’s facial challenge would still fail. Under the second step of the Bruen
analysis, [CITATION] found ample historical support for the legislature’s ability to prohibit possession
of firearms by twice-convicted felons. [CITATION], ¶¶ 90-105. The
historical analogues included “widespread acceptance of the legislatures’ authority to disarm
felons” during the founders’ era. Id. ¶ 96. [CITATION] recognized a “historical tradition of legislatures
exercising their discretion to impose status-based restrictions disarming entire categories of
persons” and that “the founders understood that felons were one such group.” (Internal quotation
marks and citations omitted.) Id. ¶ 97.
¶ 24 Defendant acknowledges our conclusion in [CITATION] but contends that portion of the decision
was wrongly decided. We decline to revisit [CITATION] here. Rather, we will follow [CITATION] and reject
defendant’s facial challenge to the AHC statute under the second amendment. As defendant has
No. 1-23-1051
not shown that the AHC statute is unconstitutional, we affirm the circuit court’s dismissal of his
postconviction petition.
¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 26 Affirmed.
- 10 -
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
2023 IL App (1st) 200435
FIRST DIVISION
September 25, 2023
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
No. 1-20-0435
)
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 2018-CR-118301
)
TRAMELL BROOKS, ) Honorable
) Stanley Sacks,
Defendant-Appellant. ) Judge Presiding.
)
PRESIDING JUSTICE FITZERALD SMITH delivered the judgment of the court, with
opinion.
Justices Lavin and Coghlan concurred in the judgment and opinion.
OPINION
¶1 After a bench trial in the circuit court of Cook County, the defendant, Trammell Brooks,
was found guilty of being an armed habitual criminal (720 ILCS 5/24-1.7 (West 2016)) and
sentenced to eight years’ imprisonment. On appeal, the defendant challenges the sufficiency of the
evidence to convict him, arguing that the State failed to prove beyond a reasonable doubt that he
knowingly possessed a firearm, which resulted in his conviction as an armed habitual criminal. In
addition, the defendant argues, for the first time on appeal, that the armed habitual criminal statute
(id.) under which he was convicted is unconstitutional, as applied to him, as it violates the second
amendment of the United States Constitution (U.S. Const., amend II). Specifically, the defendant
No. 1-20-0435
contends that under the new test for evaluating gun laws established by the recent decision of the
United States Supreme Court in New York State Rifle & Pistol Ass’n, v. Bruen, 597 U.S. ___, 142
S. Ct. 2111 (2022), there is no historical tradition of prohibiting firearm possession by nonviolent
felons. Accordingly, the defendant asserts that because his armed habitual criminal conviction was
entirely based upon his possession of a firearm after he had been convicted of two prior nonviolent
felonies, the statute is unconstitutional as applied to him. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 In January 2018, the defendant was charged with one count of being an armed habitual
criminal (720 ILCS 5/24-1.7 (West 2016)) (count I) and two counts of unlawful possession of a
weapon by a felon (UPWF) (id. § 24-1.1(a)) (count II and III), on the basis that he “knowingly
and intentionally possessed” a .32-caliber revolver after having been previously convicted of two
qualifying felonies, namely manufacture or delivery of “other amount of narcotics Schedule I
and II” (in case No. 08-CR-2114501) and UPWF (in case No. 09-CR-0968201). In addition, the
defendant was charged with one count of violating the Firearm Owners Identification Card Act
(FOID Card Act) (430 ILCS 65/2(a)(1) (West 2016)) for failing to have in his possession a
firearm owners identification (FOID) card while possessing the .32-caliber revolver (count IV).
¶4 On November 18, 2019, the defendant proceeded with a bench trial at which the
following relevant evidence was adduced. Three Chicago police officers testified that at about 5
p.m. on December 18, 2017, together with numerous units from the Maywood and the Chicago
police departments, they executed a search warrant at 1914 Railroad Avenue, Apartment 1E, in
Maywood, Illinois.
¶5 Officer John Zinchuk first testified that he was assigned as the breach and evidence
officer and that his duties included using a ram to open the entry door, as well as photographing
2
No. 1-20-0435
the apartment and inventorying any recovered evidence.
¶6 Officer Zinchuk explained that when he arrived at the scene, he observed that the
apartment was on the first floor of “a corner multiunit” building. Maywood police officers were
assigned to the front door, while Chicago police officers, including Officer Zinchuk were
assigned to the back. Officer Zinchuk knocked on the back door and announced his office but
received no response. After obtaining permission from his supervisor, Officer Zinchuk forced
open the door using the ram. Because other officers entered the premises first to secure it, he was
the last to enter.
¶7 Once inside, Officer Zinchuk observed the defendant being detained “in the living
room/dining room area near the bedroom door.” Officer Zinchuk described the residence as a
small one-bedroom, one bathroom apartment with the kitchen, living room, and dining room all
in “one wide open space.” He stated that apart from the defendant and a small dog, there was no
one else inside the apartment.
¶8 Officer Zinchuk took photographs of the premises before helping the other officers
conduct a systematic search of the apartment. During this search, on a bookshelf inside the
bedroom, Officer Zinchuk discovered a digital scale; a jar with a “a green leafy substance,”
which he suspected was marijuana; “narcotics packaging”; and a plate with white powder, which
he suspected was cocaine. 1
¶9 As evidence officer, he was then informed of other contraband that was discovered inside
the apartment. Officer Zinchuk photographed and inventoried all the recovered items, including,
inter alia, a safe, which was discovered in the bedroom. According to Officer Zinchuk, inside the
safe, other officers found a box with a loaded revolver, and numerous letters addressed to the
1
It is undisputed that the State did not charge the defendant with any drug-related offenses arising
from the discovery of these items.
3
No. 1-20-0435
defendant. At trial, Officer Zinchuk identified photographs of the scene and the recovered
contraband.
¶ 10 On cross-examination, Officer Zinchuk acknowledged that while inside the apartment, he
did not hear the defendant say anything about the recovered revolver. He also admitted that he
did not request that the revolver be checked for fingerprints or DNA.
¶ 11 Chicago police officer Edwin Utreras next testified that on December 18, 2017, he was
the first to enter the apartment through the back door after it was breached by Officer Zinchuk.
Once inside, he placed the defendant into custody and proceeded to search the apartment.
¶ 12 Officer Utreras agreed with Officer Zinchuk that the apartment contained only one
bedroom. He further stated that, among other things, inside that bedroom he discovered a safe
underneath the bed. According to Officer Utreras, the safe was unlocked, so all he had to do was
turn the knob to open it. Inside the safe, the officer discovered a blue box with a small letter “G,”
which contained a loaded .32-caliber revolver. In addition, he discovered several documents with
the defendant’s name, including (1) the defendant’s birth certificate; (2) a ComEd bill; (3) a
Nicor bill; and (3) letters from the Internal Revenue Service, Computers Systems Institute,
Illinois Client Enrollment Services, and Sexner and Associates, Attorneys at Law. All of these
documents were directed to the defendant at the Maywood apartment address.
¶ 13 Officer Utreras acknowledged that the safe also contained a second letter from the
Internal Revenue Service addressed to the defendant but at a different address, namely 211 North
Kolin Avenue in Chicago. The officer also admitted that at least one of the documents he found
inside the safe was from 2014, three years before the search warrant was executed. He could not
recall the dates on any of the remaining documents or whether any of the letters addressed to the
4
No. 1-20-0435
defendant had been opened before the police arrived.
¶ 14 Officer Utreras further testified that all the items recovered at the scene were
subsequently inventoried and photographed by Officer Zinchuk. Officer Utreras then identified
photographs of the safe and the revolver. He also identified photographs of the defendant’s birth
certificate, and the letters addressed to the defendant, which were found in the safe.
¶ 15 Officer Utreras next averred that while still at the apartment, at about 7:30 p.m., after
reading the defendant his Miranda rights (see Miranda v. Arizona, 384 U.S. 436 (1966)) , the
defendant told him (“in summary, not verbatim”) that he needed the revolver for his protection.
On cross-examination, the officer admitted that he never wrote down the defendant’s statement
and that it was not recorded by his body-worn camera. He further acknowledged that he did not
ask the defendant any follow-up questions about the revolver.
¶ 16 Chicago police officer Mark Hernandez next testified that on December 18, 2017, he was
part of the back door entry team executing the search warrant at 1914 Railroad Avenue,
Apartment 1E, in Maywood. Officer Hernandez averred that once inside the apartment, he was
assigned to watch the defendant while other officers searched the premises. Officer Hernandez
performed a pat down search of the defendant upon which he discovered a set of keys inside the
defendant’s pocket. Officer Hernandez tested the keys on the apartment’s front door and
determined that they unlocked it. At trial, the officer identified a photograph of the recovered
keys, showing that they fit inside the front door lock.
¶ 17 After the testimony of the three officers, the State introduced into evidence the
photographs taken by Officer Zinchuk and the physical documents that were discovered inside
the safe. 2 The State also introduced into evidence the certified convictions for the defendant’s
2
According to the defendant, the State failed to impound all of its exhibits after trial and then lost
them. Since then, however, the State has provided the defendant with an accurate recreation of some of
5
No. 1-20-0435
two prior felony convictions, namely: (1) manufacture or delivery of “other amount of narcotics,
Schedule I and II” (case No. 08-CR-2114501), and (2) UPWF (case No. 09-CR-0968201). 3
¶ 18 After the State rested, the defense moved for a directed finding. The circuit court granted
the motion as to count IV of the indictment, charging the defendant with a violation of the FOID
Card Act (430 ILCS 65/2(a)(1) (West 2016)). The court found that the State failed to prove the
defendant guilty of this charge because it presented no evidence whatsoever that, at the time the
warrant was executed, the defendant did not possess a FOID card.
¶ 19 Subsequently, in its case-and-chief, the defense presented the testimony of the
defendant’s brother, Keiton Webster (Webster). Webster stated that on December 17, 2018, he
lived at 1914 Railroad Avenue, Apartment 1E, in Maywood with his fiancée (Crystal Loggins),
his cousin (Tyrese Webster), his cousin’s wife (Rachel Webster), and the defendant. Webster
averred that the apartment had two bedrooms, which were separated by the living room and were
about 15 feet apart. Webster stated that he and his fiancée used the bedroom on the right, while
Tyrese and his wife used the bedroom on the left. According to Webster, the defendant had no
access to either of the bedrooms and, instead, slept on the living room sofa and kept his
those exhibits. On March 23, 2023, we granted the defendant’s motion to supplement the record on appeal
with the recreated exhibits. The defendant has since filed three volumes of supplemental record, which
contain only some of the photographs taken by Officer Zinchuk. The supplemental record, however, does
not contain any of the physical documents recovered by the police from inside the safe. To the extent that
the parties challenge the dates on those documents, we can consider only those that are visible from the
photographs in the recreated exhibits. See People v. Garcia, 2017 IL App (1st) 133398, ¶ 35 (“this court
cannot consider evidence that is not part of the record”); People v. Heaton, 266 Ill. App. 3d 469, 476
(1994) (“[E]vidence which is not part of the record on appeal is not to be considered by the reviewing
court ***.”). These include only (1) a Nicor letter, postmarked August 13, 2014; (2) the defendant’s birth
certificate issued on August 27, 2013; and (3) a letter from the Computer Systems Institute addressed to
the defendant at the apartment and postmarked July 19, 2014.
3
While the certificates of conviction are not part of the supplemental record on appeal, the
defendant does not challenge their validity. The indictment and the presentence investigation report (PSI)
both confirm the defendant’s convictions for these two offenses.
6
No. 1-20-0435
belongings in the front closet.
¶ 20 Webster further averred that on December 17, 2018, he held a FOID card and owned a
.32-caliber revolver with a black handle, which he obtained from his grandfather’s house after
his grandfather died. Webster stated that he kept the revolver inside a small box in a safe, which
he kept in the closet of his bedroom. Webster averred that the safe could not be opened without a
combination or a key. He denied that the box containing the revolver was blue and had a small
letter “G” on it. Instead, he claimed that he kept this blue box on his bedroom bookshelf.
¶ 21 According to Webster, the defendant neither had access to the safe nor to the revolver,
and Webster never observed him handling the weapon. In addition, the defendant did not keep
his birth certificate inside the safe. In fact, no documents were kept there. Instead, according to
Webster, the letters and the documents recovered by the police were kept on the kitchen shelves.
¶ 22 Although Webster could not exactly recall when he last saw the revolver inside the safe,
he believed that it was a couple of days before the search warrant was executed, when he placed
his rent money inside the safe.
¶ 23 Webster next testified that he was not present in the apartment when the search warrant
was executed because he was working driving a Pace van. When he returned home, he
discovered the entire apartment, including his bedroom, had been ransacked and destroyed.
According to Webster, his safe had been removed from his bedroom closet and had been pried
open. Webster claimed that the photograph of the safe introduced by the State at trial showed
that the safe had been pried open. 4
¶ 24 On cross-examination, Webster admitted that the digital scale, the jar with the green leafy
substance, and the baggies, which were recovered from the bookshelf in his bedroom belonged to
4
The supplemental record on appeal contains this photograph. However, because in the
photograph the door of the safe is closed, it is impossible to tell whether it was tampered with.
7
No. 1-20-0435
him. He also admitted that the plate with the white powder was from the apartment but claimed
that he did not know whether it was in his bedroom at the time of the search. In addition,
Webster denied that the white powder was his.
¶ 25 After the parties’ closing arguments, the circuit court found the defendant guilty of one
count of being an armed habitual criminal (count I) and two counts of UPWF (counts II and III).
The court then merged counts II and III into the armed habitual criminal count.
¶ 26 In finding the defendant guilty, the court stated that it “had no doubt whatsoever” that the
defendant possessed the revolver at the time of his arrest. In coming to this conclusion, the court
rejected the defendant’s theory that the revolver belonged to Webster. The court found that
Webster’s testimony was an effort “to help his brother out” by taking responsibility for the
weapon and that his suggestion that the police moved things around in the apartment and
pretended to find everything inside the safe “defie[d] belief.”
¶ 27 The court further rejected the assertion that the police fabricated the defendant’s
admission to owning the revolver. Instead, the court concluded that the defendant’s explanation
to Officer Utreras that he needed the weapon “for protection” was “obviously self-serving.”
¶ 28 In addition, the court found relevant that the gun was discovered inside the safe with
numerous documents addressed to the defendant. In commenting on those documents, the court
first indicated that their recency was not relevant because “people keep things that are important
for them to keep.” Specifically, the court pointed out that while the defendant’s birth certificate
was issued on August 27, 2013, it was the type of important document that someone would want
to keep in a safe. 5
¶ 29 In sum, the court found that the presence of the defendant’s birth certificate and mail,
5
The court further commented on the remaining documents found in the safe, noting that except
for the ComEd bill, which was from 2017, the remainder of the documents were three to four years old.
8
No. 1-20-0435
regardless of its recency, next to the revolver inside the safe of a small one-bedroom apartment,
along with the defendant’s admission that “he had the gun for his protection” and the fact that he
had keys to the apartment, established that the defendant knowingly possessed the weapon.
¶ 30 At the subsequent sentencing hearing, the State sought the imposition of a sentence at the
high end of the Class X range. 6 The State argued that the evidence at trial established not only
that the defendant, a prior felon, had a revolver but also that he was in possession of drugs and
drug paraphernalia at the time of his arrest. The State also argued that the defendant was not
unfamiliar with the criminal justice system and that he had been given opportunities for
rehabilitation in the past. In support, the State pointed out that, according to the presentence
investigation report (PSI), in addition to the two felonies that were used as predicates for his
armed habitual criminal conviction, the defendant had another six felony convictions, including
two forgery 7 and four drug convictions. 8 According to the State, the PSI further reflected that, at
the time of his sentencing hearing, the defendant also had a pending felony case in Maywood
under case No. 19-CR-0158701. In addition, according to the PSI, the defendant himself
acknowledged that he has a drug problem and that he has used marijuana daily since he was 18
years old.
¶ 31 In response, defense counsel asked the court to impose the minimum six-year term. In
The court nonetheless indicated that the recency was irrelevant as each document was “important” to the
defendant. As noted above, because these physical documents are not part of the record on appeal, and
without any witness testimony to the document’s contents, we cannot confirm the dates discussed by the
circuit court, we will not consider those dates in reviewing the sufficiency of the evidence used to convict
the defendant. See Garcia, 2017 IL App (1st) 133398, ¶ 35.
6
The sentencing range for a Class X felony is between 6 and 30 years. See 730 ILCS 5/5-4.5-25
(West 2016).
7
According to the PSI, the defendant was sentenced to two years in prison for these offenses.
8
The PSI reveals the following sentences were imposed for these drug offenses: (1) 1 year in
prison for possession of a controlled substance in case No. 06-CR-0202301, (2) 24 months of probation
for possession of a controlled substance in case No. 05-CR-0510901, (3) 1 year in prison for possession
of a controlled substance in case No. 02-CR-2739401, and (4) 1 year of probation for possession of less
than 15 grams of heroin in case No. 02-CR-2605701.
9
No. 1-20-0435
mitigation, counsel conceded that the defendant is familiar with the criminal justice system but
argued that he “does not have a history of violence.” Counsel further pointed out that the
defendant had potential for rehabilitation because he was 36 years old, he had graduated from
high school and completed a computer training course, he was gainfully employed at a temp
agency and working at Long John Silver’s, and he had a 16-year-old daughter. Counsel further
argued that any drugs and drug paraphernalia that were found during the execution of the search
warrant were for the defendant’s personal use and that the defendant was not arrested for
anything he did, but rather in his own apartment, after the police sought him out.
¶ 32 After hearing the arguments in aggravation and mitigation, the circuit court sentenced the
defendant to eight years imprisonment, only two years above the statutory minimum. The
defendant now appeals.
¶ 33 II. ANALYSIS
¶ 34 1. Sufficiency of the Evidence
¶ 35 On appeal, the defendant first challenges the sufficiency of the evidence used to convict
him. He argues that the State failed to prove beyond a reasonable doubt that he possessed the
firearm that resulted in his conviction as an armed habitual criminal. For the following reasons,
we disagree.
¶ 36 It is well-settled that when reviewing a challenge to the sufficiency of the evidence, the
relevant question is whether, after viewing the evidence in the light most favorable to the State,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. See People v. Jones, 2023 IL 127810, ¶ 28; People v. Brown, 2013 IL 114196,
¶ 48; People v. Cunningham, 212 Ill. 2d 274, 280 (2004). This standard of review applies
regardless of whether the evidence is direct or circumstantial and regardless of whether the
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defendant received a bench or a jury trial. People v. Cline, 2022 IL 126383, ¶ 25.
¶ 37 It is the responsibility of the trier of fact to determine witness credibility, resolve conflicts
in testimony, and to weigh the evidence presented at trial and draw reasonable inference
therefrom. See Brown, 2013 IL 114196, ¶ 48; see also People v. Pryor, 372 Ill. App. 3d 422, 430
(2007). In weighing the evidence, the fact finder is not required to disregard the inferences that
naturally flow from that evidence, nor must it search for any possible explanation consistent with
innocence and raise it to the level of reasonable doubt. People v. Jackson, 232 Ill. 2d 246, 281
(2009). A criminal conviction will be reversed only where the evidence is so unreasonable,
improbable, or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. Brown,
2013 IL 114196, ¶ 48.
¶ 38 To prove the defendant guilty of being an armed habitual criminal, the State was required
to prove that he possessed a firearm after being convicted of two or more qualifying offenses. See
720 ILCS 5/24-1.7 (West 2016). On appeal, the defendant only challenges the sufficiency of the
evidence proving his possession of the firearm.
¶ 39 While possession can be either actual or constructive, where, as here, the gun was found
near, and not on the defendant’s person, the State must prove that the defendant had constructive
possession of the firearm. Jones, 2023 IL 127810, ¶ 30. Constructive possession exists where the
defendant (1) had knowledge of the presence of the weapon and (2) exercised immediate and
exclusive control over the area where the weapon was found. Id.; see also People v. Faulkner,
2017 IL App (1st) 132884-B, ¶ 39.
¶ 40 Knowledge may be demonstrated by evidence of the defendant’s “acts[, declarations,] or
conduct, from which it can be inferred that he knew the contraband existed in the place where it
was found.” People v. McCurine, 2019 IL App (1st) 160817, ¶ 24; Faulkner, 2017 IL App (1st)
11
No. 1-20-0435
132884-B, ¶ 39; see also People v. Ross, 407 Ill. App. 3d 931, 936 (2011).
¶ 41 Control is established when the defendant has the “ ‘intent and capability to maintain
control and dominion’ ” over the weapon, “even if he lacks personal present dominion over it.”
People v. Spencer, 2012 IL App (1st) 102094, ¶ 17 (quoting People v. Frieberg, 147 Ill. 2d 326,
361 (1992)); see also People v. Wilkerson, 2016 IL App (1st) 151913, ¶ 65; Faulkner, 2017 IL
App (1st) 132884-B, ¶ 39. “Habitation in the premises where contraband is discovered is sufficient
evidence of control to constitute constructive possession.” Spencer, 2012 IL App (1st) 102094,
¶ 17; see also People v. Terrell, 2017 IL App (1st) 142726, ¶ 19. Proof of residency in the form of
mail, rent receipts, or utility bills is “ ‘relevant to show the defendant lived on the premises and
therefore controlled them.’ ” (Internal quotation marks omitted.) Spencer, 2012 IL App (1st)
102094, ¶ 17 (quoting People v. Cunningham, 309 Ill. App. 3d 824, 828 (1999)). In addition, “[t]he
law is clear that the exclusive dominion and control required to establish constructive possession
is not diminished by evidence of others’ access to the contraband.” (Internal quotation marks
omitted.) People v. Givens, 237 Ill. 2d 311, 338 (2010).
¶ 42 In the present case, the evidence at trial established that the defendant resided in the one-
bedroom apartment where the revolver was discovered. The defendant had keys and the ability to
enter and exit the apartment, giving him immediate access to and control over its contents. Jones,
2023 IL 127810, ¶ 30. Moreover, the defendant was the only individual inside the apartment when
the search warrant was executed. At that time, he was observed by Officer Zinchuk “near the
bedroom door” of the room in which the revolver was ultimately found. The revolver itself was
discovered under the bed inside a safe, which contained multiple documents, including the
defendant’s birth certificate and numerous letters addressed to him at the instant address. Most
importantly, when confronted with the discovery of the revolver, upon being Mirandized, the
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No. 1-20-0435
defendant himself admitted to Officer Utreras that he needed the gun “for protection.”
¶ 43 Viewing this evidence in the light most favorable to the State, we conclude that a rational
trier of fact could have found that the defendant had both knowledge of the revolver and maintained
control over the area where it was found. We therefore conclude that there was sufficient evidence
of the defendant’s constructive possession of the firearm to sustain his conviction as an armed
habitual criminal. See, e.g., Spencer, 2012 IL App (1st) 102094, ¶ 17 (holding that evidence was
sufficient to show that the defendant constructively possessed a revolver found on top of a kitchen
cabinet of a single family home, where, inter alia, the defendant, who was present during the
search, made an incriminating statement on why he needed the weapon and the police discovered
a set of keys that operated the exterior doors of the house, as well as the defendant’s identification
card listing the address of the house as his residence); People v. Hudson, 2023 IL App (1st) 192519,
¶¶ 18, 24-25 (finding that there was sufficient evidence of constructive possession where,
inter alia, the defendant was present during the execution of the search warrant, the weapon was
discovered near two pieces of mail addressed to him, and he admitted to having the weapon);
People v. Jackson, 2019 IL App (1st) 161745, ¶¶ 3, 30 (holding that there was sufficient evidence
of constructive possession of narcotics discovered in a hidden compartment in the closet of the
first floor unit of a multi-unit apartment building where, inter alia, the defendant owned the
apartment building, utilities to the building were in the defendant’s name, and the defendant was
present in the basement unit, but not the first-floor unit, when the search warrant was executed);
People v. Spann, 332 Ill. App. 3d 425, 437 (2002) (holding that there was sufficient evidence of
constructive possession of narcotics where the defendant had a key to the apartment and made
statements that he paid rent and stayed there).
¶ 44 The defendant nonetheless argues that the State failed to establish that he had control over
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No. 1-20-0435
either the bedroom or the safe where the revolver was found. Specifically, the defendant contends
that Webster’s testimony established that the apartment had two bedrooms and that the bedroom
in which the safe and revolver were discovered was neither occupied nor controlled by the
defendant. In addition, the defendant points out that Webster testified that the revolver belonged
to him and that the defendant never used it or kept any personal documents inside the safe. The
defendant asserts that Webster’s testimony establishes that the police either did not see the second
bedroom or that they lied about the size of the apartment and therefore also about finding the
documents with the defendant’s name inside the safe. In this respect, the defendant asks that we
take judicial notice of several extraneous Internet documents that are dehors the record, which he
asserts conclusively establish that, at the time of the search, the apartment had two bedrooms. 9
¶ 45 We decline the defendant’s request. Taking judicial notice of any facts that are outside of
the record and which were not considered by the trial judge in determining the defendant’s guilt
or innocence is inappropriate at this stage of review. As our supreme court has aptly explained, a
sufficiency of evidence analysis “must be limited to evidence actually admitted at trial, and judicial
notice cannot be used to introduce new evidentiary material not considered by the fact finder
during its deliberations,” as it would “wholly ignore[ ] the role of a reviewing court” in examining
the defendant’s guilt. Cline, 2022 IL 126383, ¶¶ 32-33.
¶ 46 That said, if the defendant believes that these documents unequivocally establish that, when
the search warrant was executed, the apartment contained two bedrooms, instead of one, thereby
impeaching the testimony of the two police officers, and giving more credence to Webster’s
version of events, to such an extent that there is a reasonable probability that the outcome of his
9
These documents purport to include (1) a warranty deed from an online search of the Cook
County Recorder of Deeds, (2) an MLS listing for the property, and (3) a 2019 YouTube video by
Coldwell Banker Realty advertising the apartment for rent.
14
No. 1-20-0435
trial would have been different, nothing prevents him from raising this issue in a postconviction
proceeding, in the context of an ineffective assistance of trial counsel claim.
¶ 47 As it stands, the record before us shows only that the trial judge was presented with
contradictory testimony regarding the size of the apartment, the location of the safe, the safe’s
contents, and the defendant’s ability to access or control both. In addition, the trial judge heard
testimony from Officer Utreras that the defendant made an explicit admission (albeit one that
was never memorialized or recorded) to keeping the gun for his own protection. Having heard
this testimony and having viewed the photographs of the apartment submitted into evidence, the
trial court gave credence to the police officers and found Webster’s claims “defie[d] belief.”
Because the trial judge was in a superior position to observe the demeanor of the witnesses and
assess their credibility, we must defer to his findings and may not substitute our judgment for his.
Brown, 2013 IL 114196, ¶ 48; see also People v. Wheeler, 226 Ill. 2d 92, 114 (2007); see also
People v. Pryor, 372 Ill. App. 3d 422, 430 (2007) (where the evidence produces “conflicting
inferences” is the trier of fact’s responsibility to resolve that conflict); Wilkerson, 2016 IL App
(1st) 151913, ¶ 65 (because “[k]nowledge and possession are factual issues *** the trier of fact’s
findings on these questions will not be disturbed unless the evidence is so unbelievable,
improbable, or palpably contrary to the verdict that it creates a reasonable doubt of the
defendant’s guilt”).
¶ 48 In coming to this conclusion, we have considered the numerous decisions cited by the
defendant, where constructive possession was reversed on appeal for insufficient evidence. See
People v. Wise, 2021 IL 125392; People v. Davis, 2021 IL App (3d) 180146; Terrell, 2017 IL App
(1st) 142726; People v. Fernandez, 2016 IL App (1st) 141667; People v. Tates, 2016 IL App (1st)
140619; People v. Maldonado, 2015 IL App (1st) 131874; People v. Alicea, 2013 IL App (1st)
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No. 1-20-0435
112602; People v. Sams, 2013 IL App (1st) 121431; People v. McIntyre, 2011 IL App (2d) 100889;
People v. Orta, 361 Ill. App. 3d 342, 349 (2005); People v. Macias, 299 Ill. App. 3d 480 (1988).
However, because none of these decisions involve an admission by the defendant regarding the
recovered contraband, we find that they are inapposite.
¶ 49 The only case cited by the defendant that involves an admission is People v. Walker, 2020
IL App (1st) 162305. In that case, the defendant was one of five people present when a search
warrant was executed in a three-bedroom apartment. Id. ¶¶ 3-5. The police found the defendant
asleep on a make-shift bed in the dining room. Id. ¶ 5. During the search, the officers recovered
two boxes of ammunition from a top dresser drawer in one of the three bedrooms. Id. ¶ 6. Another
person was present in that bedroom during the search, and nothing was found connecting the
defendant to that room. Id. ¶¶ 7, 11. In addition, the defense presented multiple witnesses who
testified that the defendant did not live or keep any belongings in the apartment. Id. ¶ 14. The
defendant, however, admitted to the police that the ammunition was his. Id. ¶ 6.
¶ 50 On review, the appellate court held that the defendant’s confession was “insufficient to
prove corpus delicti of an offense.” Id. ¶ 22. In coming to this conclusion, the court found relevant
that “the only connection that the defendant had to the bullets was that he was sleeping in the
apartment where they were found.” Id. ¶ 25.
¶ 51 In contrast, in the instant case, there were numerous items linking the defendant to the
residence, including keys to the apartment, which were inside his pocket, and his birth certificate
and letters addressed to him at the residence, which were discovered inside the safe next to the
revolver. More importantly, unlike Walker, the defendant was the only person inside the apartment
and was found standing next to the door of the sole bedroom, from which the officers subsequently
recovered the revolver. Accordingly, we find that Walker does not apply.
16
No. 1-20-0435
¶ 52 In his final attempt to challenge the sufficiency of the evidence, the defendant asserts that
the State did not present any fingerprint or DNA evidence from the items recovered to show that
he handled the revolver and the safe. He asserts that without such evidence the State failed to prove
that he had control over the firearm. Contrary to the defendant’s position, however, the State was
not required to present such evidence because witness testimony from the police officers
describing where the revolver was found sufficiently linked the defendant to it. People v.
Campbell, 2019 IL App (1st) 161640, ¶ 33 (“It is settled law that if witnesses’ testimony is
otherwise credible, the State [is] not required to present additional physical evidence *** link[ing]
the defendant to the gun.” (Internal quotation marks omitted.)). Here, as already noted above, the
trial judge heard the testimony of the police officers and considered the photographs of the crime
scene, corroborating their testimony. This evidence alone was sufficient for the court to determine
that the defendant had both knowledge and control over the gun.
¶ 53 Accordingly, we conclude that the circuit court properly found the defendant
constructively possessed the firearm and was therefore guilty of being an armed habitual
criminal. Brown, 2013 IL 114196, ¶ 48.
¶ 54 2. Constitutionality of Armed Habitual Criminal Statute
¶ 55 The defendant next argues, for the first time on appeal, that under the new test articulated
by the United States Supreme Court in Bruen, 597 U.S. ___, 142 S. Ct. 2111, the armed habitual
criminal statute (720 ILCS 5/24-1.7 (West 2016))) under which he was convicted is
unconstitutional, as applied to him, as it violates the second amendment (U.S. Const., amend II).
He argues that the statute impermissibly criminalized his simple possession of a firearm
exclusively on the basis of his two prior nonviolent felony convictions.
¶ 56 In response, the State initially contends that the defendant’s as-applied challenge is
17
No. 1-20-0435
forfeited because he failed to raise it in the circuit court. The defendant, in turn, concedes that he
did not raise this issue before the circuit court but nonetheless asserts that the record below is
sufficiently developed and contains all the facts necessary for our review of his as-applied
constitutional challenge. After a review of the record, we agree with the defendant and decline
the State’s invitation to find the issue forfeited.
¶ 57 Ordinarily, a defendant must present an as-applied constitutional challenge to a statute at
trial in order to develop the record as it pertains to the specific facts and circumstances of his
claim. People v. Thompson, 2015 IL 118151, ¶ 37 (because “an as-applied constitutional
challenge is dependent on the particular circumstances and facts of the individual defendant” it is
“paramount that the record be sufficiently developed in terms of those facts and circumstances
for purposes of appellate review”). However, our supreme court has held that where “[a]ll the
facts and circumstances to decide the defendant’s claim *** are already in the record” the claim
may be raised and reviewed on appeal for the first time even absent a prior evidentiary hearing.
People v. Holman, 2017 IL 120655, ¶¶ 29-32, overruled on other grounds by People v. Wilson,
2023 IL 127666, ¶ 42; People v. Martin, 2018 IL App (1st) 152249, ¶¶ 12-13 (“[W]here the
evidentiary record developed below is sufficient, the constitutionality of a statute may be
challenged on appeal.”); see, e.g., People v. Robinson, 2011 IL App (1st) 100078, ¶¶ 12, 17, 29
(considering an as-applied constitutional challenge raised for the first time on appeal).
¶ 58 Contrary to the State’s position, this principle is not limited to cases involving as-applied
challenges to juvenile sentences under the eighth amendment. In fact, this appellate court has
previously held that it could consider a second amendment as-applied challenge to the armed
habitual criminal statute for the first time on direct appeal despite the lack of an evidentiary
hearing, where the record below was sufficiently developed. See Martin, 2018 IL App (1st)
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No. 1-20-0435
152249, ¶¶ 12-13.
¶ 59 In the present case, the defendant’s as-applied challenge is based on facts already in the
record, i.e., the defendant’s simple possession of the firearm and the nonviolent nature of his two
prior predicate felony offenses. Both the charging document and the evidence at trial
unequivocally show that the defendant’s mere constructive possession of the firearm was the
basis for his armed habitual criminal conviction. Moreover, it is undisputed that the defendant’s
prior conviction for manufacture or delivery of “other amount of narcotics Schedule I and II” and
his subsequent conviction for UPWF, were used as the predicate offenses for his armed habitual
criminal charge. During sentencing, the trial judge described these offenses as “a delivery
charge” and “a weapon violation” respectively. The PSI, which the State acknowledged in open
court correctly reflects the defendant’s criminal history, confirms the accuracy of the trial court’s
description of these two predicate convictions. The PSI further shows that the defendant’s
remaining criminal history included only nonviolent offenses, namely two forgery and four drug
possession convictions.
¶ 60 Accordingly, under this record, we fail to see which additional facts must be adduced at
an evidentiary hearing, which would preclude our review of the defendant’s constitutional
challenge. The State itself does not identify any such omitted facts but instead conjectures that
there is “no telling what additional, compelling evidence” it could have produced to challenge
the defendant’s simple possession of the firearm or his nonviolent felony record.
¶ 61 The State, however, fails to realize that it alone has discretion to decide what charges to
bring against the defendant and that the only conduct it charged in the instant case was the
defendant’s illegal possession of the firearm. People v. Jamison, 197 Ill. 2d 135, 162 (2001);
People v. White, 2011 IL 109616, ¶ 25 (the State is endowed “with the exclusive discretion to
19
No. 1-20-0435
decide which *** charges shall be brought” or “whether to prosecute at all” (internal quotation
marks omitted)). Moreover, the State cannot deny that during sentencing, it affirmed the
accuracy of the PSI and that it never disputed defense counsel’s description of the defendant’s
record as nonviolent. Nor did the State ever argue at trial or during the sentencing hearing that
the defendant’s predicate offenses were violent. See People v. Jones, 2016 IL 119391, ¶ 40
(noting that “a PSI, with its statutorily mandated requirements” is “a reliable source of a
defendant’s criminal history”); People v. Williams, 149 Ill. 2d 467, 491, 493 (1992) (recognizing
a PSI as a “reliable source” for “inquiring into a defendant’s criminal history” and noting that
“[a]ny claimed deficiency or inaccuracy within [it] must first be brought to the attention of the
sentencing court,” because “failure to do so results in wavier of the issue on review”); People v.
Matthews, 362 Ill. App. 3d 953, 957 (2005) (same). The State cannot now wish away its choices
or ignore the charges and the evidence that it alone introduced and relied upon at trial and at the
sentencing hearing.
¶ 62 Accordingly, under the record before us, we conclude that the defendant’s claim is
properly raised and that we may consider its merits. See Holman, 2017 IL 120655, ¶¶ 29-32;
Robinson, 2011 IL App (1st) 100078, ¶¶ 12, 17, 29; Martin, 2018 IL App (1st) 152249, ¶¶ 12-13
(“[W]here the evidentiary record developed below is sufficient, the constitutionality of a statute
may be challenged on appeal.”).
¶ 63 That said, for the following reasons, we find that neither Bruen nor the Supreme Court’s
previous second amendment jurisprudence supports the defendant’s as-applied challenge to the
armed habitual criminal statute.
¶ 64 Statutes carry a strong presumption of constitutionality. See People v. Legoo, 2020 IL
124965, ¶ 29; see also People v. Sharpe, 216 Ill. 2d 481, 487 (2005). “To overcome this
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No. 1-20-0435
presumption, the party challenging the statute must clearly establish that it violates the
constitution.” Sharpe, 216 Ill. 2d at 487. A reviewing court has “a duty to construe a statute in a
manner that upholds its validity and constitutionality if it reasonably can.” People v. Graves, 207
Ill. 2d 478, 482 (2003); see also Legoo, 2020 IL 124965, ¶ 29. Our review of whether the armed
habitual criminal statute is constitutional as applied to the defendant is de novo. See People v.
Davis, 408 Ill. App. 3d 747, 749 (2011).
¶ 65 The second amendment of the United States constitution provides that “[a] well regulated
Militia being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. Const., amend II.
¶ 66 Throughout the twentieth century the prevailing understanding of the second amendment,
at least in some way, related to militia service. See United States v. Miller, 307 U.S. 174, 179
(1939). This understanding changed in 2008 with the United States Supreme Court decision in
District of Columbia v. Heller, 554 U.S. 570 (2008), which interpreted the second amendment as
establishing an individual right. Heller identified the “core” of the second amendment as “the
right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635.
Roughly two years later in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court
extended the second amendment’s individual right to keep and bear arms to the states under the
fourteenth amendment.
¶ 67 After Heller and McDonald, “[e]very circuit court” in the country, developed the “same
two-step test” for evaluating second amendment challenges to gun regulations. Atkinson v.
Garland, 70 F.4th 1018, 1020 (7th Cir. 2023) (citing Bruen, 597 U.S. at ___, 142 S. Ct. at 2126-
27); see also Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019), abrogated by Bruen, 597 U.S.
___142 S. Ct. 2111. Under the first step, the threshold question was whether the regulated
21
No. 1-20-0435
activity fell within the scope of the second amendment. Id. At this stage, “[t]he government
could defend the challenged restriction” by showing that the regulated activity fell “outside of
the scope of the Second Amendment as originally understood.” Atkinson, 70 F.4th at 1020. If
history proved inconclusive or suggested that the regulated activity was not “categorically
unprotected” courts proceeded to the second step, whereupon they conducted a means-ends
analysis, employing either strict or intermediate scrutiny and weighing the severity of the
regulation against the ends the government sought to achieve. Id.
¶ 68 Recently, however, in Bruen, the Supreme Court announced a new analytical framework
for evaluating the constitutionality of firearm regulations. Bruen, 597 U.S. at ___, 142 S. Ct. at
2126-27. In Bruen, the Court held that the two-step approach used since Heller was “one step too
many” and condemned any means-end analysis in the second amendment context. See id. at ___,
___, 142 S. Ct. at 2127, 2131 (noting that while “judicial deference to legislative interest
balancing is understandable—and, elsewhere, appropriate—it is not deference that the
Constitution demands here [under the second amendment]”). Instead, the Court instructed that
“plain text” and history alone would control. Id. at ___, 142 S. Ct. at 2129-30.
¶ 69 The Court explained that under the new framework, courts first needed to determine
whether “the Second Amendment’s plain text covers an individual’s conduct.” Id. at ___, 142 S.
Ct. at 2129-30. If it does, then the Constitution “presumptively protects that conduct” and the
government “must then justify its regulation by demonstrating that it is consistent with the
Nation’s historical tradition of firearm regulation.” Id. at ___, 142 S. Ct. at 2130. “Only then may
a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified
command.” (Internal quotation marks omitted.). Id. at ___, 142 S. Ct. at 2130.
¶ 70 To carry this burden, the government must point to “historical precedent from before,
22
No. 1-20-0435
during, and even after the founding [that] evinces a comparable tradition of regulation.” (Internal
quotation marks omitted.) Id. at ___, 142 S. Ct. at 2131-32. Noting that “when it comes to
interpreting the Constitution, not all history is created equal,” the Court made clear that the
relevant inquiry centers on what the founders understood the second amendment to mean. Id. at
___, 142 S. Ct. at 2136. In other words, the Court clarified that in looking to historical context,
the most relevant time period is that of the amendment’s enactment (in 1791). Id. at ___, 142 S.
Ct. at 2136. 10
¶ 71 In directing courts to canvass historical periods for context, the Court acknowledged that
the task would not always be “straightforward,” particularly when it involved “unprecedented
societal concerns or dramatic technological changes.” Id. at ___, 142 S. Ct. at 2131-32. Noting
that in such circumstances “a more nuanced approach” was necessary, the Court instructed lower
courts to seek out similar regulations and to reason by analogy. Id. at ___, 142 S. Ct. at 2132. As
the Court explained, it is not necessary to identify a “historical twin”; rather a “well-established
and representative [historical] analogue will do.” (Emphasis in original.) Id. at ___, 142 S. Ct. at
2133.
¶ 72 The Court further clarified that “analogical reasoning” under the second amendment
should not be “a regulatory straitjacket nor a regulatory blank check.” Id. at ___, 142 S. Ct. at
2133. As such, “courts should not ‘uphold every modern law that remotely resembles a historical
analogue,’ because doing so ‘risk[s] endorsing outliers that our ancestors would never have
accepted.’ ” Id. at ___, 142 S. Ct. at 2133 (quoting Drummond v. Robinson, 9 F.4th 217, 226 (3d
10
In doing so, the Court acknowledged that the second amendment was enacted in 1791, but that
the right to bear arms which that amendment guarantees was not extended to the states until the
ratification of the fourteenth amendment in 1868. The court, however, refused to address the ongoing
scholarly debate about which of these time periods was more relevant in determining the scope of the
second amendment as it applied to state-enacted laws, finding that for purposes of the New York statute at
issue in that case, the two reflected the same historical traditions. Id. at ___, ___, 142 S. Ct. at 2136, 2138.
23
No. 1-20-0435
Cir. 2021)). However, “even if a modern-day regulation is not a dead ringer for historical
precursors, it still may be analogous enough to pass constitutional muster.” Id. at ___, 142 S. Ct.
at 2133. The core question is whether the challenged regulation and the proffered analogue are
“relevantly similar.” Id. at ___, 142 S. Ct. at 2132.
¶ 73 The Court then clarified two metrics to be used in comparing the government’s proffered
analogues against the challenged law, namely: (1) how the challenged law burdens the right to
bear arms; and (2) why the law burdens that right. Id. at ___, 142 S. Ct. at 2132 (citing
McDonald, 561 U.S. at 767, and Heller, 554 U.S. at 599). In short, the Court explained that the
proper inquiry turns on whether the “modern and historical regulations imposes a comparable
burden on the right of armed self-defense, and *** whether that burden is comparably justified.”
Id. at ___, 142 S. Ct. at 2132.
¶ 74 After articulating this new standard for analyzing gun regulations under the second
amendment, the Court in Bruen applied it to a New York law, which required a person seeking a
license to carry a loaded pistol outside of the home to demonstrate “proper cause” and gave
discretion to the licensing agency to determine what that meant. Id. at ___, 142 S. Ct. at 2122.
¶ 75 The Court first found that under the plain text of the second amendment the individual
right to bear arms extended outside of the home. Id. at ___, ___, 142 S. Ct. at 2122, 2134-35.
The Court therefore concluded that the regulated activity was “presumptively valid” and looked
to whether the government could prove that the regulation aligned with well-established
historical analogues at the time of the amendment’s enactment and ratification. Id. at ___, 142 S.
Ct. at 2122. The Court ultimately found that the New York law did not meet its exacting historic
analysis. Id. at ___, 142 S. Ct. at 2138 (concluding that the government neither “demonstrate[d] a
tradition of broadly prohibiting the public carry of commonly used firearms for self-defense” nor
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No. 1-20-0435
identified “any such historical tradition limiting public carry only to those law-abiding citizens
who demonstrate a special need for self-defense”). It therefore concluded that the law violated
both the second and fourteenth amendments. Id. at ___, 142 S. Ct. at 2138.
¶ 76 In the present case, on appeal, the defendant asserts that under the new test articulated in
Bruen, the armed habitual criminal statute, under which he was convicted, is unconstitutional, as
applied to him. He argues that possession of a firearm within one’s home is the quintessential
protected activity under the plain text of the second amendment. He further contends that
because the armed habitual criminal statute was not enacted until 2005, and the first Illinois law
to prohibit felons, including nonviolent felons, from permanently possessing firearms, was
passed in 1984 (see Pub. Act 83-1056 (eff. July 1, 1984)), the State cannot demonstrate that the
legislation is consistent with the nation’s historical tradition of firearm regulation.
¶ 77 The State responds (1) that the defendant’s conduct in carrying a weapon “in connection”
with the sale of drugs is not encompassed by the plain text of the second amendment; (2) that, as
a convicted felon, the defendant does not fall into the category of “people” protected under the
plain text; and (3) that, regardless, the nation’s historical tradition of firearm regulation
demonstrates that persons, such as the defendant, are excludable as a class based on their
dangerousness or “lack of virtue.”
¶ 78 For the following reasons, we find that under the two-step framework articulated in
Bruen, the defendant’s as-applied challenge to the armed habitual criminal statute fails.
¶ 79 At the outset, we note that Bruen did not address the specific issue raised here by the
defendant, namely whether felons, and in particular nonviolent felons, have a second amendment
right to possess firearms. 11 However, since Bruen, courts of various jurisdictions have grappled
11
In this respect, we reject the State’s initial request to automatically disregard Bruen as
inapplicable on the basis that in striking the New York law, the Bruen Court also implicitly endorsed
25
No. 1-20-0435
with this issue and in the vast majority of cases have found that, as applied to nonviolent felons,
statutes prohibiting felons from possessing weapons are constitutional under Bruen. See, e.g.,
United States v. Jackson, 69 F.4th 495 (8th Cir. 2023) (holding that a federal statute prohibiting
firearm possession by convicted felons was constitutional as applied to a defendant previously
convicted of the sale of controlled substances and UPWF); United States v. Rice, No. 3:22-CR-
36-JD, 2023 WL 2560836 (N.D. Ind. Mar. 17, 2023) (upholding the same federal statute as
applied to a nonviolent felon previously convicted of distribution of narcotics and UPWF);
United States v. Price, No. 21-CR-164, 2023 WL 1970251 (N.D. Ill. Feb. 13, 2023) (upholding
the same federal statute as applied to a nonviolent felon convicted of numerous narcotics
offenses); United States v. King, 634 F. Supp. 3d 76 (S.D.N.Y. 2022) (upholding the same
federal statute as applied to a nonviolent felon previously convicted of possession of a controlled
substance and UPWF); United States v. Young, 639 F. Supp. 3d (W.D. Pa. 2022) (upholding the
same federal statute as applied to a nonviolent felon previously convicted of numerous drug
trafficking offenses); United States v. Charles, 633 F. Supp. 3d 874 (W.D. Tex.
2022) (upholding the same federal statute as applied to a defendant previously convicted of,
inter alia, possession with intent to distribute narcotics); United States v. Coombes, 629 F.
Illinois licensing regulations for possessing and carrying firearms, which would in practice disallow a
convicted felon, such as the defendant, from possessing a gun. See Bruen, 597 U.S. at ___, ___, ___, 142
S. Ct. at 2123 n.1, 2124, 2138 n.9) (noting that New York was part of a small minority of states that
allowed licensing agencies discretion to deny concealed-carry license applications, such that they “may
issue” a license, while the majority of states, including Illinois, are “shall issue” jurisdictions, where
authorities have no discretion, and instead must issue a license whenever an applicant satisfies certain
threshold requirements). While it is true that in invalidating the New York law, the Bruen Court indicated
its approval of the “shall issue” jurisdictions and noted that “nothing” in its “analysis should be
interpreted to suggest the unconstitutionality of the 43 State’s ‘shall-issue’ licensing regimes,” the Court
neither examined the detail of any of these 43 “shall-issue” statutes, nor indicated that they were not
challengeable under its new framework. Id. at ___, 142 S. Ct. at 2138 n.9. To the contrary, the Court
stated, “because any permitting scheme can be put toward abusive ends, we do not rule out constitutional
challenges to shall-issue regimes.” Id. at ___, 142 S. Ct. at 2138 n.9.
26
No. 1-20-0435
Supp.3 d 1149 (N.D. Okla. 2022) (upholding the same federal statute as to a defendant
previously convicted of the nonviolent offenses of burglary and drug possession); see also
United States v. Farley, No. 22-cr-30022, 2023 WL 1825066 (C.D. Ill. Feb. 8, 2023) (upholding
a federal statute banning any person convicted of a misdemeanor crime from possessing a
firearm as applied to a defendant with two prior convictions for domestic violence).
¶ 80 To our knowledge, post-Bruen, only two federal appellate courts have held that the
second amendment protects a nonviolent offender’s right to possess firearms. See Range v.
Attorney General, 69 F.4th 96 (3d Cir. 2023) (holding that the federal statute prohibiting
convicted felons from possessing firearms was unconstitutional as applied to a defendant
previously convicted of a felony-equivalent Pennsylvania conviction of making a false statement
to obtain food stamp assistance); see also United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023),
cert. granted by ___ U.S. ___, 143 S. Ct. 2688 (2023) (holding that the federal statute prohibiting
possession of firearms by convicted felons was unconstitutional, as applied to a defendant
subject to a (civil) domestic violence restraining order). 12
¶ 81 The analytical basis for upholding felon-possession statutes as applied to nonviolent
felons has varied greatly. While some courts have treated convicted felons as lacking second
amendment rights under the amendment’s plain text (see, e.g., Price, 2023 WL 1970251, at *4;
Young, 639 F. Supp. 3d 515 at 523-24; United States v. Riley, 635 F. Supp. 3d 411, 424 (E.D.
12
We note that some courts, including very recently the Seventh Circuit, have refused to address
the issue without additional assistance either through amicus briefing or the appointment of expert
historians. See e.g., Atkinson, 70 F.4th 1018 (declined to address the issue because the briefs supplied by
the parties insufficiently addressed the detailed historical inquiry required under Bruen’s second prong);
United States v. Bullock, No. 2022 WL 16649175 (S.D. Miss. Oct. 27, 2022) (emphasizing the problems
that ensue when judge’s must analyze conflicting historical interpretations, and requesting that the parties
provide supplemental briefing on “whether it should appoint a historian to serve as a consulting expert
[witness]”); Baird v. Bonata, No. 2:19-cv-00617-KJM-AC, 2022 WL 17542432 (E.D. Cal. Dec. 8, 2022)
(same).
27
No. 1-20-0435
Va. 2022)), others have sustained the constitutionality of the regulations under Bruen’s second
step, finding that the laws have historical underpinnings. See, e.g., Jackson, 69 F.4th 495; Rice,
2023 WL 2560836; Charles,633 F. Supp. 3d 874; United States v. Collette, 630 F. Supp. 3d 841,
847-48 (W.D. Tex. 2022); Coombes, 629 F. Supp. 3d 1149; United States v. Garrett, No. 18-CR-
880, 2023 WL 157961 (N.D. Ill. Jan. 11, 2023); United States v. Gray, No. 22-cr-00247-CNS,
2022 WL 16855696 (D. Colo. Nov. 10, 2022); United States v. Bernard, No. 22-CR-03 CJW-
MAR, 2022 WL 17416681 (N.D. Iowa Dec. 5, 2022)).
¶ 82 The diverse bases offered by these different jurisdictions underscore the difficulties that
the Supreme Court’s new standard imposes on lower courts. See Atkinson, 70 F.4th at 1028
(Wood, J., dissenting) (“This approach poses enormous challenges to the district and circuit
courts of this country, not to mention the myriad of state courts ***.”); see also Bruen, 597 U.S.
at ___, 142 S. Ct. at 2179 (Breyer, J., dissenting) (there are inherent difficulties spawned by
relying “nearly exclusively” on text and history to interpret the second amendment and these are
“especially acute in the lower courts”); see also United States v. Jackson, No. ELH-22-141, 2023
WL 2499856 (D. Md. Mar. 13, 2023) (“the divergent conclusions” of the lower courts post-
Bruen “give reason to suggest that a [text and] history-only test is not readily administrable”).
¶ 83 That said, acknowledging the difficulty of the task before us, we turn to the merits of the
defendant’s claim.
¶ 84 The first step under Bruen asks us to determine whether the second amendment’s plain
language covers the defendant’s conduct. Bruen, 597 U.S. at ___, 142 S. Ct. at 2126. The State
asserts that the defendant’s conduct in possessing a firearm “in connection” with the sale or use
of drugs is not protected under the plain text. The defendant responds that the relevant inquiry is
his possession of the firearm, and not what he was doing “in connection” with that possession.
28
No. 1-20-0435
Moreover, he asserts that because the possession occurred inside his own home, his conduct is
the cornerstone of the “individual right to keep and bear arms.” See Heller, 554 U.S. at 595, 635.
For the following reasons, we agree with the defendant.
¶ 85 The relevant portion of the second amendment provides that the right to “keep and bear
arms” shall not be infringed. U.S. Const., amend II. The defendant here was convicted under the
armed habitual criminal statute, which states in pertinent part that “[a] person commits the
offense of being an armed habitual criminal” if he “possesses *** any firearm after being
convicted of a total of 2 or more times of any combination” of the enumerated qualifying
offenses, including, as applicable to the instant appeal, UPWF and “any violation of the Illinois
Controlled Substances Act [(720 ILCS 570/100 (West 2016))] or the Cannabis Control Act [(720
ILCS 550/1 (West 2016))] that is punishable as a Class 3 felony or higher.” (Emphasis added.)
720 ILCS 5/24-1.7 (West 2016).
¶ 86 Contrary to the State’s position, the proscribed conduct under the statute was not the
“carrying” of a firearm “in connection” with the use or sale of illegal drugs but rather the
defendant’s possession of the firearm after having been twice convicted under any of the myriad
of enumerated felonies, which in this case, both happen to be nonviolent. Accordingly,
answering whether the defendant’s conduct falls under “keep and bear” is simple.
¶ 87 In Heller, the Supreme Court held that “to keep arms” means to “have weapons.” Heller,
554 U.S. at 582. The plain meaning of “have” is “to be in possession of.” Oxford English
Dictionary (3d ed. 2015). Therefore, the second amendment’s “keep and bear arms” language
plainly encompasses possession, and the defendant’s conduct is “presumptively protected” under
Bruen, 597 U.S. at ___, 142 S. Ct. at 2126. See Heller, 554 U.S. at 627 (possession of a firearm
in one’s home is the cornerstone of the second amendment right to “bear arms”); Collette, 630 F.
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No. 1-20-0435
Supp. 3d at 844 (finding that “possession” of a firearm clearly falls under the conduct protected
by the plain language of the second amendment); Charles, 633 F. Supp. 3d at 877 (same).
¶ 88 The State next contends that the plain text of the second amendment does not
“encompass” the defendant because, as a convicted felon, i.e., not a “law abiding citizen,” he
falls outside of the scope of “the people” that have the right “to keep and bear arms.”
¶ 89 In making this argument, the State incorrectly conflates Bruen’s first step with its second.
Under Bruen, the first step asks only whether “the Second Amendment’s plain text covers an
individual’s conduct.” (Emphasis added.) Bruen, 597 U.S. at ___, 142 S. Ct. at 2126. This step
does not contemplate the actor or the subject. 13 See Collette, 630 F. Supp. 3d at 844; United
States v. Banuelos, 640 F. Supp. 3d 716, 722 (W.D. Tex. 2022); Charles, 633 F. Supp. 3d at 876;
United States v. Quiroz, 629 F. Supp. 3d 511, 516 (W.D. Tex. Sept. 19, 2022); United States v.
Jackson, 622 F. Supp. 3d 1063, 1066 (W.D. Okla. Aug. 19, 2022); United States v. Kays, 624 F.
Supp. 3d 1262, 1265 (W.D. Okla. Aug. 29, 2022); United States v. Nutter, 624 F. Supp. 3d 636,
639 n.5 (S.D. W.Va. Aug. 29, 2022). Accordingly, the defendant’s status as a felon is irrelevant
at this stage of the analysis. Instead, the defendant’s possession of a firearm is “presumptively
constitutional.” See Bruen, 597 U.S. at ___, 142 S. Ct. at 2126. How the defendant’s prior felony
might impact his second amendment right to possess a firearm is more properly evaluated under
13
We note that not all courts agree. Some have found that the plain text of the second amendment
protects only the conduct of “law-abiding citizens.” See, e.g., Price, 2023 WL 1970251, at *3; Young, 639
F. Supp. 3d 515 at 523-24; Riley, 635 F. Supp. 3d at 424; United States v. Perez-Garcia, 628 F. Supp. 3d
1046, 1053 (S.D. Cal. 2022). Likewise, others have considered the status of the actor but found that the
plain text of the second amendment protects conduct by felons since they are members of “the people.”
See, e.g., Coombes, 629 F. Supp. 3d at 1155-56; United States v. Carrero, 635 F. Supp. 3d 1210, 1212
(D. Utah 2022); Campiti v. Garland, No. 3:22-cv-177 (AWT), 2023 WL 143173, at *3 (D. Conn. Jan. 10,
2023); United States v. Rowson, No. 22 Cr. 310 (PAE), 2023 WL 431037, at *18 (S.D.N.Y. Jan. 26,
2023). Still others, have declined to take a position. See, e.g., Rice, 2023 WL 2560836, at *6-8; United
States v. Daniels, 610 F. Supp. 3d 892, 893-95 (S.D. Miss. 2022).
30
No. 1-20-0435
the second step’s historical tradition analysis. See Collette, 630 F. Supp. 3d at 844; Banuelos,
640 F. Supp. 3d at 722-23; Charles, 633 F. Supp. 3d at 876; Quiroz, 629 F. Supp. 3d at 516;
Jackson, 622 F. Supp. 3d at 1066.
¶ 90 Therefore, turning to the second step, we evaluate whether the State has demonstrated
that the armed habitual criminal statute is consistent with the nation’s historical tradition of
firearm regulation. For the following reasons, we find that it has.
¶ 91 “History shows that the right to keep and bear arms” has traditionally been “subject to
restrictions that include[ ] prohibitions on possession by certain groups of people.” Jackson, 69
F.4th at 502; see also Atkinson, 70 F.4th at 1035 (Wood, J., dissenting) (“[S]ince the founding,
governments have been understood to have the power to single out categories of persons who
will face total disarmament ***.”); see also Range, 69 F.4th at 128 (Krause, J., dissenting)
(noting that legislatures have historically imposed “ ‘status-based restrictions’ ” disarming entire
“ ‘categories’ ” of people).
¶ 92 The State is correct when it asserts that such categorical restrictions are inextricably
linked to the notion of “law-abiding citizens.”
¶ 93 Restrictions on the possession of firearms date back to England in the 1600s when the
government repeatedly disarmed individuals whose conduct reflected that they could not be
trusted to abide by “the sovereign and [his] dictates.” Range, 69 F.4th at 120 (Krause, J.,
dissenting). The English Bill of Rights established that Parliament had the authority to determine
which citizens could “ ‘have arms *** by Law.’ ” Jackson, 69 F.4th at 502 (quoting An Act
Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown 1689,
1 W. & M. Sess. 2, c. 2, § 7 (Eng.)); see also Bruen, 597 U.S. at ___, 142 S. Ct. at 2141-42. The
Parliament first disarmed non-Anglican Protestants who refused to participate in the Church of
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England and those who were “ ‘dangerous to the Peace of the Kingdom.’ ” Jackson, 69 F.4th at
502 (quoting Militia Act 1662, 13 & 14 Car. 2 c. 3, § 13 (Eng.)); see Joyce Lee Malcom, To
Keep and Bear Arms: The Origins of an Anglo-American Right 45 (1994). It later forbade
firearm ownership by Catholics who refused to renounce their faith. Jackson, 69 F.4th at 502
(citing An Act for the Better Securing the Government by Disarming Papists and Reputed
Papists 1688, 1 W. & M., Sess. 1, c. 15 (Eng.)).
¶ 94 In colonial America, legislatures continued to disarm individuals whose status indicated
that they could not be trusted to obey the law. As such, Native Americans, and other minority
groups, like Catholics in Maryland and Pennsylvania were banned from owning firearms. See
Jackson, 69 F.4th at 502-03 (citing Michael A. Bellesiles, Gun Laws in Early America: The
Regulation of Firearms Ownership, 1607-1794, 16 Law & Hist. Rev. 567, 574, 578-79
(1998); Act of Aug. 4, 1675, in 5 Records of the Colony of New Plymouth, in New England 173
(Nathaniel B. Shurtleff & David Pulsifer eds., 1856); Act of July 1, 1656, in Laws and
Ordinances of New Netherland 234-35 (Edmund Bailey O’Callaghan ed., 1868); and Joseph G.S.
Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms,
20 Wyo. L. Rev. 249, 263 (2020)). Similarly, during the Revolutionary War, the Continental
Congress, Massachusetts, Virginia, Pennsylvania, Rhode Island, North Carolina, and New Jersey
prohibited possession of firearms by people who refused to swear loyalty oaths. Id. at 503 (citing
Journals of the Continental Congress 1774-1789, at 205 (Worthington Chauncey Ford ed., 1906);
Act of Mar. 14, 1776, ch. 21, 1775-76 Mass. Acts 479; Act of May 1777, ch. III, in 9 The
Statutes at Large, Being a Collection of all the Laws of Virginia 281-82 (William W. Hening ed.,
1821); Act of June 13, 1777, ch. 756 §§ 2-4, 1777 Pa. Laws 110, 111-13; Act of June 1776, in
7 Records of the Colony of Rhode Island and Providence Plantations in New England 567 (John
32
No. 1-20-0435
Russel Bartlett ed., 1862); Act of Nov. 15, 1777, ch. 6, 1777 N.C. Sess. Laws 231; and Act of
Sept. 20, 1777, ch. XL, 1777 N.J. Laws 90); see also Joseph Blocher & Caitlan
Carberry, Historical Gun Laws Targeting “Dangerous” Groups and Outsiders, Duke L. Sch.
Pub. L. & Legal Theory Series No. 2020-80, at 5 & nn. 38-41(2020).
¶ 95 Prior to the adoption of the Bill of Rights in 1791, during the ratification process, the
“highly influential minority proposal” (Heller 554 U.S. at 604 (citing 2 Bernard Schwartz, The
Bill of Rights: A Documentary History 664 (1971))), published by the Anti-Federalist delegates
in Pennsylvania, suggested that the people should have a right to bear arms “ ‘unless for crimes
committed, or real danger of public injury from individuals.’ ” Id. at 658 (Stevens, J., dissenting,
joined by Souter, Ginsburg, and Breyer, JJ.)(quoting Schwartz, supra, at 665). While this
amendment was not adopted, it is important because it reflects the understanding of the founders
that “crimes committed,” whether dangerous or not, justified disarmament. Range, 69 F.4th at
126 (Krause, J., dissenting).
¶ 96 Founding-era criminal punishments also demonstrate the widespread acceptance of the
legislatures’ authority to disarm felons. Id. In the Colonial period, legislatures prescribed death
or forfeiture of a person’s entire estate (presumably including firearms) as punishment for
numerous nonviolent crimes (including deceit, forgery, and wrongful taking of property). Id. at
126-27; see also Rice, 2023 WL 2560836, at *9; Jackson, 69 F.4th at 503 (citing An Act for the
Punishment of Certain Crimes Against the United States, Pub. L. No. 1-9, § 14, 1 Stat. 112, 115
(1790); Act of Feb. 21, 1788, ch. 37, 1788 N.Y. Laws 664-65; Act of May 1777, ch. XI, in 9 The
Statutes at Large, Being a Collection of all the Laws of Virginia 302-03 (William W. Hening ed.,
1821); A Digest of the Laws of Maryland 255-56 (Thomas Herty ed., 1799); Stuart Banner, The
Death Penalty: An American History 3, 18, 23 (2002); John D. Bessler, Cruel & Unusual: The
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No. 1-20-0435
American Death Penalty and the Founders’ Eighth Amendment 56-57 (2012); and Kathryn
Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 330-
32, 342, 344-47 (1982)). Even some non-capital offenses triggered the permanent loss of an
offender’s estate, including any firearms. For example, a 1786 New York statute punished those
who counterfeited state bills of credit with life imprisonment and the forfeiture of their entire
estate. Range, 69 F.4th at 127 (Krause, J., dissenting) (citing Act of Apr. 18, 1786, in 2 Laws of
the State of New York 253, 260-61 (1886)). Similarly, minor nonviolent infractions, such as
hunting in prohibited areas, were punished with seizure of the firearms involved in the offenses.
Jackson, 69 F.4th at 503 (citing Laws and Ordinances of New Netherland 138 (Edmund Bailey
O’Callaghan ed., 1868), and Act of Apr. 20, 1745, ch. III, in 23 State Records of North
Carolina 218-19 (Walter Clark ed., 1904)).
¶ 97 As this survey reflects, there is a historical tradition of legislatures exercising their
discretion to impose “status-based restrictions” disarming entire “categories of persons” who,
based on their past conduct, were presumed unwilling to obey the law. Range, 69 F.4th at 129
(Krause, J., dissenting). 14 “Legislatures did so not because the individuals in these groups were
considered dangerous [or violent], but because, based on their status, they were deemed non-law-
abiding subjects.” Id.; see also Jackson, 69 F.4th at 503. While the particular groups varied over
14
It goes without saying that many of these categorical prohibitions would be impermissible
today under other constitutional provisions. Nonetheless, they are relevant in determining the historical
understanding of the right to keep and bear arms.
34
No. 1-20-0435
time, the founders understood that felons were one such group. Range, 69 F.4th at 129.
¶ 98 The majority of legal historians agree with this position, 15 noting that in “classical
republican political philosophy” the right to bear arms was “inextricably and multifariously tied
to” the concept of a “virtuous citizenry.” (Internal quotation marks omitted.) Coombes, 629 F.
Supp. 3d at 1157 (citing Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62
Tenn. L. Rev. 461, 480 (1995), and Saul Cornell, “Don’t Know Much About History” The
Current Crisis in Second Amendment Scholarship, 29 N. Ky. L. Rev. 657, 679 (2002)). In other
words:
“[T]he right to bear arms in the Founding era [was] a civic right. Such a right was not
something that all persons could claim but was limited to those members of the polity
who were deemed capable of exercising it in a virtuous manner.” (Emphasis added.)
Cornell, supra at 679.
As such “[f]elons simply did not fall within the benefit of the common law right to possess
arms,” which turned on one’s law-abiding character. Don B. Kates, Jr., Handgun Prohibition and
the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 266 (1983); see also
United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010) (suggesting that the second
amendment right was limited to “virtuous” persons); see also Thomas M. Cooley, A Treatise on
15
But see Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons
from Possessing Arms, 20 Wy. L. Rev. 249, 262, 264-65 (2020) (arguing that in Colonial America
disarmament laws applied only to those individuals “perceived as dangerous”); see also C. Kevin
Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 697, 708 (2009))
(arguing that history shows that firearm restrictions should apply only to those convicted of a “crime of
violence”).
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Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American
Union 29 (1st ed. 1868) (noting that certain classes of people were “almost universally excluded”
from exercising certain civic rights, including “the idiot, the lunatic, and the felon on obvious
grounds”).
¶ 99 This conclusion is further bolstered by Supreme Court precedent. In Heller, the Court
held that the second amendment “elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” (Emphasis added.) Heller, 554
U.S. at 635. The Court contrasted this category of citizens with “felons and the mentally ill”
whom the government may prohibit from possessing firearms. Id. at 626, 627 n.26.
Subsequently, in Bruen, the Supreme Court characterized the holders of second amendment
rights as “law-abiding citizens” no fewer than fourteen times. See Bruen, 597 U.S. ___, ___, ___,
___, ___, ___, ___, ___, 142 S. Ct. at 2122, 2125, 2131, 2133-34, 2135 n.8, 2138, 2150, 2156.
These included its instruction to identify historical analogues to modern firearm regulations by
assessing how and why the regulations burden a “law-abiding citizen’s” right to armed self-
defense. Id. at ___, ___, 142 S. Ct. at 2118, 2125. In addition, the Bruen Court indicated that it
would not disfavor a licensing regime that required applicants to undergo criminal background
checks that are “designed to ensure” that “those bearing arms in the jurisdiction are, in fact law-
abiding, responsible citizens.” (Emphasis added and internal quotation marks omitted.) Id. at
___, 142 S. Ct. at 2138 n.9.
¶ 100 For these reasons, we conclude that both the founding-era historical record and Supreme
Court precedent support the ability of our legislature to prohibit firearm possession by people
who have “demonstrated disrespect for legal norms of society.” Jackson, 69 F.4th at 504. Since
the defendant in the instant case was twice convicted of a felony, albeit nonviolent ones, he is not
36
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a law-abiding citizen, and the armed habitual criminal statute that prohibits his possession of
firearms is constitutional as applied to him.
¶ 101 Even if we were to indulge the defendant and take the view adopted by the minority of
historians that traditionally regulation of firearms possession was an effort to address a risk of
dangerousness (see Greenlee, supra at 262, 264-65; C. Kevin Marshall, Why Can’t Martha
Stewart Have a Gun? 32 Harv. J.L. & Pub. Pol’y 695, 697, 708 (2009)), such that it would not
apply to the defendant as a nonviolent felon, we would nonetheless find that the prohibition on
firearm possession by convicted felons passes muster under historical analysis. See Jackson 69
F.4th at 504.
¶ 102 “History demonstrates that there is no requirement for an individualized determination of
dangerousness as to each person in a class of prohibited persons.” Id.; see also Atkinson, 70 F.4th
at 1033 (Wood, J., dissenting). For example, not all Protestants or Catholics in England, not all
Native Americans, not all Catholics in Maryland, and not all early Americans who declined to
swear loyalty oaths were violent or dangerous persons. Jackson, 69 F.4th at 504. “Legislatures
historically prohibited possession by categories of persons based on a conclusion that the
category as a whole presented an unacceptable risk of danger if armed.” (Emphasis added.) Id. In
reasoning by analogy from that history, as Bruen instructs us to do, “the Constitution can, and
must, apply to circumstances beyond those the Founders specifically anticipated.” See Bruen,
597 U.S. at ___, 142 S. Ct. at 2132 (noting that when addressing an “unprecedented societal
concern[ ]” the historical inquiry will not be straightforward and courts may look to a historical
analogue that is “relatively similar” to the modern regulation).
¶ 103 Our legislature enacted an analogous prohibition in the armed habitual criminal statute to
address modern conditions, specifically “the threat of violence that arises when repeat offenders
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No. 1-20-0435
possess firearms.” People v. Johnson, 2015 IL App (1st) 133663, ¶ 27. As the defendant himself
points out, the first Illinois criminal statute prohibiting convicted felons from temporarily
possessing firearms was passed in 1967. See 1967 Ill. Laws 2605 (§ 1); Ill. Rev. Stat. 1967, ch.
38, ¶ 24-3.1. Subsequently, as the defendant points out, in response to the federal war on drugs,
Illinois enacted numerous laws criminalizing nonviolent drug offenses. See also Pub. Act 77-757
(eff. Aug. 16, 1971) (adding Ill. Rev. Stat. 1973, ch. 56½, ¶ 401 (for the first time making it a
felony to manufacture or deliver controlled substances)); see also Gonzales v. Raich, 545 U.S. 1,
10 (2005) (noting that after President Nixon declared a “war on drugs” in 1969, Congress passed
the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. § 801 et seq.
(1970)); see also Jacob D. Charles & Brandon L. Garrett, The Trajectory of Federal Gun Crimes,
170 U. Pa. L. Rev. 637, 674 (2022) (describing the rise of federal gun prosecutions during the
war on drugs and war on crime era). As a result, in 1984, the legislature also enacted the
precursor to the modern-day armed habitual criminal statute, making it a felony to “knowingly
possess on or about [one’s] person or on [one’s] land or in [one’s] own abode or fixed place of
business any *** firearm *** if the person has been convicted of a felony under the laws” of
Illinois or “any other jurisdiction.” Pub. Act 83-1056 (eff. July 1, 1984). That felony was
elevated to Class X status, in 2005, in the current version of the armed habitual criminal statute,
which criminalizes the knowing possession of a firearm by persons convicted of two or more
enumerated felonies, including nonviolent drug offenses. Pub. Act 94-398 (eff. Aug. 2, 2005)
(adding 720 ILCS 5/24-1.7).
¶ 104 This “modern expansion” of Illinois’s criminal law was “a response to modern, urban,
and technological challenges unheard of and not contemplated in the Founding era.” Banuelos,
640 F. Supp. 3d at 724; see also Charles, 633 F. Supp. 3d at 883. Accordingly, while the
38
No. 1-20-0435
defendant correctly points out that Illinois did not have a statute criminalizing the possession of
firearms by convicted felons until about 200 years after the enactment of the second amendment,
this does not preclude a finding that the regulation has historical traditions. Requiring this court
to find a “ ‘historical twin’ ” or “hew so closely to [the founding era’s] concept of felonious
behavior” would turn the historical analysis into the “ ‘regulatory straitjacket’ ” shunned by
Bruen. Banuelos, 640 F. Supp. 3d at 723-24 (citing Bruen, 597 U.S. at ___, 142 S. Ct. at 2133).
¶ 105 In sum, we conclude that the legislature’s ability to impose status-based restrictions
disqualifying certain categories of people from possessing firearms is consistent with the national
historical tradition of firearm regulation. See Jackson, 69 F.4th at 505. Regardless of how we
characterize such restrictions, i.e., as “restrictions on persons who deviate[ ] from legal norms or
persons who presented an unacceptable risk of dangerousness” our legislature acted within the
historical tradition when it enacted the armed habitual criminal statute criminalizing the
possession of firearms by twice-convicted felons. Id. Consistent with the Supreme Court’s
repeated assurances that no doubt should be cast on the constitutionality of laws prohibiting the
possession of firearms by felons, we conclude that the armed habitual criminal statute is
constitutional as applied to the defendant. See Heller, 554 U.S. at 626, 627 n.26 (noting that
“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons” and characterizing such laws as “presumptively lawful”);
McDonald, 561 U.S. at 786 (“We made it clear in Heller that our holding did not cast doubt on
such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons
and the mentally ill ***.’ [Citation.] We repeat those assurances here.”); Bruen, 597 U.S. at ___,
142 S. Ct. at 2162 (Kavanaugh, J., concurring) (expressly reaffirming the language in Heller
regarding the longstanding prohibition on possession of firearms by felons); Id. at ___, 142 S. Ct.
39
No. 1-20-0435
at 2157 (Alito, J., concurring) (“Nor have we disturbed anything that we said in Heller or
McDonald *** about restrictions that may be imposed on the possession of carrying of guns.”).
¶ 106 III. CONCLUSION
¶ 107 For the aforementioned reason, we affirm the judgment of the circuit court.
¶ 108 Affirmed.
40
No. 1-20-0435
People v. Brooks, 2023 IL App (1st) 200435
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR-
118301; the Hon. Stanley J. Sacks, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Rebecca I. Levy, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, David Iskowich, and Susanna Bucaro, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
41
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Law
9885624
[SEGMENT 1]
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230508
C-230509
Plaintiff-Appellee, : TRIAL NOS. B-2006193
B-2204564
vs. :
PERCY ROSS, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: August 16, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plainitff-Appellee,
Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Percy Ross was indicted for two counts of murder
under [CITATION], with accompanying firearm specifications, one count
of felonious assault under [CITATION], also with accompanying firearm
specifications, and one count of having weapons under a disability under [CITATION]. Ross elected to have a bench trial on the weapons-under-a-disability
count. The trial court found him guilty, but continued the matter for sentencing. At a
jury trial on the remaining three counts, Ross claimed that he acted in self-defense.
That trial ended with a hung jury.
{¶2} Subsequently, he was indicted for one count of tampering with evidence
under [CITATION], with an accompanying firearm specification. The trial court
consolidated the two cases for trial. After a second jury trial, Ross was found guilty of
one count of murder, one count of felonious assault, and one count of tampering with
evidence, and all of their accompanying specifications. The jury acquitted him on one
of the murder counts. The trial court again found him guilty of the weapons-under-
disability charge.
{¶3} The trial court merged the felonious assault count with the murder
count, as well as some of the firearm specifications. It sentenced Ross to serve an
aggregate sentence of 21 years to life in prison on the murder charge. It also sentenced
him to 36 months’ incarceration on the having-weapons-under-disability charge, and
four years’ imprisonment on the tampering-with-evidence charge, both to be served
consecutively to the sentence on the murder charge. This appeal followed. We find
no merit in Ross’s five assignments of error, and we affirm his convictions.
OHIO FIRST DISTRICT COURT OF APPEALS
I. Factual Background
{¶4} The record shows that on November 22, 2020, at about 4:00 a.m., police
received a 911 call about a shooting at a four-unit apartment building at 7815 New
Bedford Avenue in Roselawn. Upon arrival, the responding officers found the body of
Elias Tsibouris lying at the bottom of a set of stairs in front of the main entrance to the
building.
A. Cab Driver’s Testimony
{¶5} Cab driver Stanley Asberry made the 911 call. He testified that he picked
up Tsibouris at about 3:00 a.m. in Roselawn. Tsibouris was a regular customer of the
cab company, and Asberry stated that he was “a nice guy” and that he “liked him so
much.” Tsibouris asked Asberry to drive him a short distance to pick up his girlfriend,
Carlee Otten, at 7815 New Bedford Avenue and then drive them to another location.
{¶6} Upon arriving at that address, Asberry parked across the street from the
building. Tsibouris said that his girlfriend would be coming out shortly. After waiting
about 15 minutes, Tsibouris called her, and she said she was coming. When she did
not, he walked to the front door of the building and knocked, calling out for her.
Asberry said that Tsibouris did not seem angry or aggressive, just irritated that she
had not come out of the building.
{¶7} When his girlfriend did not respond, Tsibouris walked to the back of the
building, while trying to reach her on the phone. Asberry remained seated in his cab.
He had to look through the front passenger seat window, which was rolled down, to
see the building’s front door, which was situated about 25 feet up from the curb. The
front lights of the building were on.
{¶8} When Tsibouris came back to the front door, Asberry asked him what
was taking so long. Tsibouris turned and looked at Asberry. He said that his girlfriend
had called, and she was coming out. Then, Asberry saw the front door of the building
OHIO FIRST DISTRICT COURT OF APPEALS
open, Tsibouris “turned around, and he was surprised, and pow.” Asberry said that
Tsibouris’s hands were down, and he was only holding his cell phone, not any
weapons. He added that there was “no conversation, no nothing.” When the door
opened, “there was a pow. . . . [H]e was not trying to get into the apartment. I never
seen him grab the doorknob or anything. He knocked on the door a few times, that’s
all.” Asberry added that was no time for any interaction between Tsibouris and the
shooter.
{¶9} Tsibouris fell down, and the front door closed. Asberry saw a man run
up the steps inside the building to go into the apartments on the top floor. He
described the shooter as an older gentleman with close-cut, salt-and-pepper hair, who
was a little taller than him.
{¶10} Asberry then drove about a quarter of a mile away and called the cab
company. He was told not to get involved, but he stated that “I like this guy. I’m not
going to go just leave him laying there like that.” Afterwards, he was rattled and drove
home. Later that morning, he met with homicide detectives.
B. The Police Investigation
{¶11} Criminalist Jimmy Pham generated a diagram of the crime scene that
showed blood stains going from the landing where Tsibouris had been shot and down
the steps to where he was found lying in the front yard. He identified a 9 mm shell
casing found underneath the bushes in the front yard. While casings from most
firearms eject to the right, he said that there was no way to determine how the casing
ended up there.
{¶12} Pham stated that no blood was found inside the doorway or in the
common area of the building where the shooter had stood when he fired the gun.
Pham documented a pool of blood on the landing outside the front door, several feet
OHIO FIRST DISTRICT COURT OF APPEALS
from the threshold. He also documented blood spots going down each step from the
landing, consistent with Tsibouris rolling or sliding down the steps after being shot.
{¶13} Detective Greg Gehring arrived at the scene shortly before 5:30 a.m.
After he spoke with Asberry, residents of the building, and the landlord, the
investigation became centered on apartment three. Although the apartment was
leased to another individual, the landlord stated that a person she knew as “Pee Wee”
was residing there. Pee Wee was later determined to be Ross. The police prepared a
search warrant and brought in a SWAT team. A negotiator from the SWAT team
contacted Ross, who returned to the scene. Ross agreed to speak to police at their
office.
{¶14} Ross denied any involvement in the shooting. He told the detectives
that he had been lying down when he heard someone banging on the door. He walked
out into the hallway, and he saw a “guy he knew of” when he looked down the stairs.
He walked back into his apartment to call 911 when he heard a gunshot. He said that
a woman named Linda was with him in the apartment, and he and Linda left the
apartment. The detectives determined that his story was all lies. There was no woman
named Linda, and the person in the apartment with Ross was Otten. Detective Gehring
stated that Ross was at their office a long time, a “matter of hours.” During that time,
Ross never mentioned that he acted in self-defense.
{¶15} Dr. Anne Laib, a forensic pathologist and deputy coroner with the
Hamilton County Coroner’s Office, performed an autopsy on Tsibouris. She
determined that Tsibouris was 44 years old, was five feet eleven inches tall, and
weighed 337 pounds. She testified that his cause of death was a gunshot wound to the
head.
{¶16} Dr. Laib further testified that there was a muzzle imprint on Tsibouris’s
head, which meant that the murder weapon had been “pressed firmly and forcefully
OHIO FIRST DISTRICT COURT OF APPEALS
against the skin” when it was fired. She found soot and gunpowder deep within the
wound, which only happens when a gun is pressed against the skin. The bullet traveled
through Tsibouris’s right eye, the base of his skull, and through his brain. It exited
[SEGMENT 2]
through the upper left skull behind his left ear. Dr. Laib also found that the left sides
of Tsibouris’s arm, shoulder and leg were scraped and bruised, consistent with him
falling on his left side.
{¶17} A toxicology report showed that Tsibouris had fentanyl and cocaine in
his system at the time of his death. Dr. Laib testified that he was “acutely intoxicated,”
which means that the drugs were still in their “unbroken down form in the body.” She
further stated that at the time he was shot, he was under the influence of those drugs,
but she clarified that she could not say how he metabolized those drugs or how they
affected his behavior the night of the shooting.
C. Ross’s Testimony
{¶18} The State introduced Ross’s testimony from the previous trial into
evidence. Ross stated that he had gotten out of prison in August 2020, and that he
was on postrelease control. The conditions of his postrelease control required him to
stay away from hard drugs and guns. He lived in his nephew’s apartment at 7815 New
Bedford Avenue while his nephew was in prison. The landlord was his nephew’s best
friend and allowed Ross to perform various tasks in the building in lieu of rent.
{¶19} At some point prior to November 14, 2020, Carlee Otten moved in with
Ross and spent most nights there. She was a drug addict, who used, among other
things, crack, heroin, and fentanyl. Ross said that he knew that she used drugs in her
room, but he allowed her to move in because he thought it was safer for her than being
on the street.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Ross also knew that Otten spent time with Tsibouris, and Otten told
Ross that she had taken $3,800 from him. At one point, Ross drove Otten to see
Tsibouris, and when he did not hear from her in several days, he became concerned.
After Ross told Tsibouris that he would call the police if he did not hear from Otten,
he received a call from her, asking him to pick her up. She told Ross that Tsibouris
had “kept her hostage.”
{¶21} At about 3:30 a.m. on November 14, 2020, Ross was asleep in his
apartment when he heard “boom, boom,” and a crash. Then he heard banging on his
apartment door. When Ross looked through the peephole, he saw Tsibouris standing
there. Otten was standing behind Ross. As he ran to the kitchen to get a butcher knife,
Otten said, “Let me get him out of here.” Ross opened the door to let her out, then
slammed it shut, and locked it. Otten left with Tsibouris. Subsequently, Ross
discovered Tsibouris had kicked in the Plexiglass window to the left of the door to the
building and reached inside to open the door.
{¶22} After Ross told his nephew about that incident, he told Ross that he had
a gun in a shoebox on a shelf in his bedroom. Ross retrieved the gun. He said that he
had no confidence that the entryway door would keep someone from entering the
building.
{¶23} Ross did not see or hear from Tsibouris again until the early morning
hours of November 22, 2020. He said that he had been “smoking weed” all night, fell
asleep, and awakened to the sound of someone banging on the front door of the
apartment building. He looked out the window and saw a cab. He thought it might be
for his downstairs neighbors in apartment two. When he asked Otten if she knew who
it was, she said no.
{¶24} A few minutes later, Ross heard “boom, boom, boom, boom.” He said
the vibration shook the building. The pounding went on for about ten minutes. He
OHIO FIRST DISTRICT COURT OF APPEALS
thought that he should see what was going on, so he “instinctively” grabbed the gun,
although he knew he was violating the conditions of his postrelease control. As he
walked down the stairs, he did not see anyone at the door, even though there were two
windows on either side of the front door.
{¶25} Ross reached with his left hand to open the door, which swung out left
to right, with the gun in his right hand. At that moment, he was shocked and scared
to see Tsibouris. Ross asked Tsibouris, “What are you doing here?” Tsibouris asked,
“Where is Carlee?” Ross remained inside the doorway because Tsibouris was blocking
the entry. Ross told him, “Get out of here. Man, don’t come in here.” When he did
not leave, Ross told him again, “Don’t come in here.” Tsibouris again asked for Otten.
Ross testified that the more times he told Tsibouris to go away, the angrier he got.
{¶26} Tsibouris came toward Ross with his shoulder lowered like he was going
to “swing at me, throw a punch or something and hit me.” As Tsibouris came toward
him, Ross moved back, angling away from him. Ross said that Tsibouris, who was
younger and much larger than Ross, “was looking crazy.” Ross thought there was no
way he could beat Tsibouris. As Tsibouris came closer to him, Ross raised his right
hand with the gun to shoot. When the gun went off, he and Tsibouris were so close to
each other that they touched. Ross did not know if he pulled the trigger intentionally
or accidentally. He said that “it just happened to0 fast.”
{¶27} After the gunshot, Ross could not see Tsibouris. He stepped through
the doorway and saw him lying at the bottom of the steps. He admitted that although
he had said that Tsibouris was coming toward him, Tsibouris never made it to the
threshold of the front door and fell backwards.
{¶28} Ross, who claimed that he had never shot anyone, panicked. He ran
upstairs, changed his shoes, put on a black tee shirt and sweatshirt, and grabbed a
jacket. He told Otten, “We got to get out of here.” Otten stated that there was a warrant
OHIO FIRST DISTRICT COURT OF APPEALS
for her arrest, so she went with him. He drove down Summit Road and got rid of the
gun by throwing it out of his car into a wooded area. He said that even though Otten
was with him, she did not see where he threw the gun.
D. Otten’s Testimony
{¶29} The defense presented Otten’s testimony from the previous trial. She
admitted that she was addicted to fentanyl, heroin, and cocaine at the time. She was
in a relationship with Tsibouris, who was also an addict. Because they were homeless,
they often stayed in Tsibouris’s car, in hotels, or outside. Tsibouris’s drug of choice
was cocaine.
{¶30} In November 2022, Otten often stayed at the apartment where Ross was
living. She had a sexual relationship with Ross, who supplied her with drugs. She
admitted that she was scheming with both Tsibouris and Ross to get as many drugs
from both of them as she could.
{¶31} The night before the shooting, Otten said she was going to leave some
cocaine for Tsibouris in a grill in front of Ross’s apartment, and he was going to leave
some fentanyl for her in exchange. She led Tsibouris to believe that they were going
to be paid a lot of money for the drugs that they would sell. But she put white power
in the grill, and after Tsibouris retrieved it, he realized that he had been scammed.
{¶32} Tsibouris left the area but returned in a cab and waited outside for
Otten. He texted her, “Cab getting off highway,” and “Cab here.” In the meantime,
she had gone upstairs and had fallen asleep after using the fentanyl. Tsibouris texted
her repeatedly and asked why she wasn’t coming down. When he received no answer,
he texted, “Plan B about to happen. We are out front; in 30 seconds I’m coming in.”
He walked to the front door of the building and began knocking loudly enough to wake
her. She texted him, telling him to go away.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} Otten said that Ross woke up and went downstairs to see who was
making all the noise. She texted Tsibouris and told him, “He’s coming. Get off the
fuckin door.” Tsibouris responded, “BRING THE MONEY.” She said that she was in
the kitchen making toast when she heard Ross say, “Who is it?” and tell Tsibouris to
leave. Then she heard a gunshot. Ross returned upstairs and told her that they needed
to leave. He also told her that “he did not mean to do it.” Otten said she left, because
she was afraid of “being charged.” She also told police that Ross had threatened her
[SEGMENT 3]
and her loved ones. When they left through the front door, she did not look at anything
and did not notice Tsibouris’s body.
II. Ineffective Assistance of Counsel
{¶34} In his first assignment of error, Ross contends that he was denied the
effective assistance of counsel. He argues that his counsel was ineffective for failing to
object to and to seek redactions of Ross’s prior testimony, which was inadmissible
under Evid.R. 404(B) and 609(A)(2). This assignment of error is not well taken,
{¶35} A court will presume that a properly licensed attorney is competent, and
the defendant bears the burden to show ineffective assistance of counsel. [CITATION]. To sustain a claim for ineffective assistance of counsel, the defendant must
demonstrate that counsel’s performance was deficient, and that the deficient
performance prejudiced the defense. [CITATION].
{¶36} To establish that counsel’s performance was deficient, the defendant
must show that counsel’s representation fell below an objective standard of
reasonableness. [CITATION]. Judicial scrutiny of
counsel’s performance must be highly deferential. The defendant must overcome the
OHIO FIRST DISTRICT COURT OF APPEALS
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy. [CITATION] at 689; Hackney at ¶ 37. A defendant is not deprived
of the effective assistance of counsel when counsel chooses, for strategic reasons, not
to pursue every possible trial tactic. [CITATION], 38 Ohio St.3d 305, 319 (1988);
Hackney at ¶ 37.
{¶37} To establish prejudice, a defendant must show that there is a reasonable
probability that but for counsel’s unprofessional errors, the result of the proceeding
would have been different. [CITATION] at 694; Hackney at ¶ 38. Prejudice from
defective representation sufficient to justify reversal of a conviction exists only where
the result of the proceeding was unreliable or fundamentally unfair because of
counsel’s performance. [CITATION], 506 U.S. 364, 369-370 (1993); [CITATION], 72 Ohio St.3d 545, 558 (1995); Hackney at ¶ 38.
A. Counsel’s Failure to Object
{¶38} Ross argues that his counsel was ineffective for failing to object to
testimony on cross-examination about Ross’s 30-year-old convictions and his
violations of the conditions of his postrelease control. First, we note that counsel’s
failure to make objections is not, by itself, enough to sustain a claim of ineffective
assistance of counsel. [CITATION], 2006-Ohio-791, ¶ 168; Hackney, 2016-Ohio-
4609, at ¶ 39 (1st Dist.).
{¶39} Generally, the prosecution in a criminal case may not present evidence
that the defendant has committed other crimes or acts independent of the crime for
which the defendant is being tried to establish that the defendant acted in conformity
with his bad character. Evid.R. 404(B); [CITATION], 2013-Ohio-5386, ¶ 20 (1st
Dist.). But Evid.R. 404(B) provides that other bad acts are admissible to show
“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
OHIO FIRST DISTRICT COURT OF APPEALS
mistake or accident.” [CITATION]; Thomas at ¶ 20.
{¶40} Because Evid.R. 404(B) codifies an exception to the general rule, it must
be strictly construed against admissibility. [CITATION]; Thomas at ¶ 21. Nevertheless, the other acts need not be similar to the crime
at issue. If the other acts tend to show by substantial proof any of the items
enumerated in Evid.R. 404(B), evidence of the other acts is admissible. [CITATION]; Thomas at ¶ 21.
{¶41} Evid.R. 609 governs impeachment of a witness’s credibility through
admission of a prior criminal conviction. [CITATION]. Evid.R. 609(A)(2) provides,
Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),
evidence that the accused was convicted of a crime is admissible if the
crime was punishable by death or imprisonment in excess of one year
pursuant to the law under which the accused was convicted and if the
court determines that the probative value of the evidence outweighs the
danger of unfair prejudice, of confusion of the issues, or of misleading
the jury.
Evid.R. 609(B) states,
Evidence of a conviction under this rule is not admissible if a period of
more than ten years has elapsed since the date of conviction or of the
release from confinement, or the termination of community control
sanctions, post-release control, probation, parole, or judicial release
imposed for that conviction, whichever is the later date, unless the court
determines, in the interests of justice, that the probative value of the
OHIO FIRST DISTRICT COURT OF APPEALS
conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect.
{¶42} The record shows that Ross’s testimony was presented by defense
counsel in the first trial. On direct examination, Ross’s counsel began by having Ross
acknowledge that he had lied to the police when he was questioned about the murder.
Ross admitted that he had lied, but he said that he was ready to tell the truth at trial.
Counsel asked if this was the first time Ross had ever been charged with a crime. Ross
acknowledged that he had other convictions for drug-related offenses that had
resulted in prison terms.
{¶43} Then, defense counsel asked him about his most recent time in prison,
and Ross replied that he had been released in August 2020. He testified that he was
subject to postrelease control. The conditions of postrelease control were that he could
not have contact with the police under any circumstances, and that he could not be
around hard drugs or guns. He acknowledged that he had violated those conditions.
{¶44} While still on direct examination, Ross asked if he could say something.
He stated, “I’m 65 years old at the time. Man, I ain’t never shot nobody. I ain’t never
killed nobody. I ain’t never stabbed nobody. I ain’t never cut nobody. I don’t carry
myself like that. I ain’t never hurt nobody, I mean never in my life, my 65 years.”
{¶45} On cross-examination, the state asked about his previous convictions,
especially violent offenses. The state asked, “This is not the first time you’ve been
convicted for a felony weapon conviction.” Ross replied, “N0.” He added that he had
been released from prison in 2020 for a crime that involved a gun. The prosecutor
asked, “You’ve been convicted multiple times of assault on a police officer, isn’t that
correct?” Ross replied, “That was about 30 years ago.” He also stated that he had
pleaded guilty “just to get it over with.”
OHIO FIRST DISTRICT COURT OF APPEALS
{¶46} The State also asked him about the conditions of his postrelease control.
Then the State asked him, “So we already know you’ve been out of prison for about
three months, and you’ve already committed two crimes?” Ross replied, “Okay. Yes,
I have. It’s my fault.” The State then asked him, “When you grabbed that gun, you
walked down the stairs, you knew you were committing a crime?” He replied, “Yes, I
did.”
{¶47} In the previous trial, Ross was a defense witness, testifying on his own
behalf. His previous testimony was presented by the State in this trial. Nevertheless,
his trial strategy in both trials was to be candid about his previous convictions and
other bad acts to enhance his credibility to the jury on his self-defense claim. He
admitted that he lied to police because he knew he was on postrelease control, and he
did not trust the police or understand that he could raise self-defense. In doing so, he
opened the door to questions about his previous convictions.
{¶48} A defendant may introduce testimony, through himself or others, of a
relevant character trait that would tend to prove he acted in conformity therewith on
a particular occasion. Evid.R. 404(A)(1). By introducing that evidence, the defendant
“opens the door” for the prosecution, which is then permitted to rebut or impeach this
character evidence on cross-examination under Evid.R. 405(A). That cross-
examination may include inquiry into relevant specific instances of conduct. [CITATION]
{¶49} Ross specifically put his character for peacefulness at issue through his
voluntary statement that he had never shot, killed, stabbed or cut anyone. See id. at ¶
41. Convictions over ten years old can be admissible under Evid.R. 609(B) if the
“probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.” Arguably, the convictions for assaulting
a police officer were relevant to Ross’s claims that he was not violent, but we question
OHIO FIRST DISTRICT COURT OF APPEALS
whether asking about 30-year-old convictions was proper. Nevertheless, the
[SEGMENT 4]
questions about those convictions were brief, and they were not unfairly prejudicial.
{¶50} Questionable trial strategies and tactics do not rise to the level of
ineffective assistance of counsel. [CITATION]. Simply
because there was “another and better strategy available” did not mean that counsel
provided ineffective assistance. Id. at ¶ 19, quoting [CITATION].
49 (1980). Consequently, we overrule Ross’s first assignment of error.
B. Counsel’s Failure to Request a Limiting Instruction
{¶51} In his second assignment of error, Ross again contends that he was
denied the effective assistance of counsel. He argues that defense counsel’s failure to
request a limiting instruction and final jury instruction regarding the limited purpose
for which the jury could consider his prior convictions, prior inconsistent statements,
and prior bad acts constituted ineffective assistance. This assignment of error is not
well taken.
{¶52} The failure to request limiting instructions on the use of an offender’s
prior convictions does not, in and of itself, indicate ineffective assistance of counsel.
[CITATION],
¶ 17 (12th Dist.). Generally, the failure to request jury instructions is purely a matter
of trial tactics and will not be disturbed on appeal. [CITATION],
¶ 11 (9th Dist.). “This is especially so in cases where the jury instruction at issue
would have undermined or been inconsistent with the defense’s theory of the case.”
[CITATION].
{¶53} The theory of Ross’s defense was that while he had made mistakes in the
past and lied to police, once he took responsibility for his actions, he told the truth. He
also asserted that he lied to the police because he knew he had violated the conditions
OHIO FIRST DISTRICT COURT OF APPEALS
of his postrelease control, and he did not trust the police or know that he could have
raised self-defense. A limiting instruction would be inconsistent with his defense
because his counsel had brought up the prior convictions as a trial strategy.
{¶54} Ross has not overcome the presumption that his counsel’s failure to
request a limiting instruction was a matter of trial strategy. See [CITATION], at ¶ 25; [CITATION] at ¶ 15; [CITATION] at ¶ 16-17. Because Ross has not shown that his
counsel’s performance was deficient, we need not consider the issue of prejudice.
Consequently, we overrule Ross’s second assignment of error.
III. The Court’s Failure to Sua Sponte Give a Limiting Instruction
{¶55} In his third assignment of error, Ross contends that the trial court
committed plain error in failing to give limiting or final jury instructions sua sponte
regarding the limited purpose for which the jury could consider the character
evidence. He argues that the trial court’s failure to do so deprived him of his right to
due process and a fair trial. This assignment of error is not well taken.
{¶56} A court need not sua sponte give a limiting instruction every time other-
acts evidence is presented. “Depending on the nature of the other-acts evidence and
the context in which it is used, defense counsel may as a matter of strategy wish to
avoid highlighting the evidence for the jury.” [CITATION], ¶ 67. The decision not to request a limiting instruction “is sometimes a tactical one,”
and the Ohio Supreme Court has stated that it does not “wish to impose a duty on the
trial courts to read this instruction when it is not requested.” [CITATION], fn. 9.
{¶57} Because trial counsel did not request a limiting instruction, the trial
court was not required to give the jury a limiting instruction concerning the other-acts
evidence. See [CITATION], ¶ 54 (5th Dist.). Therefore, the court
OHIO FIRST DISTRICT COURT OF APPEALS
did not err in failing to give a limiting instruction, much less commit plain error. We
overrule Ross’s third assignment of error.
IV. Speedy Trial
{¶58} In his fourth assignment of error, Ross contends that the trial court
erred in denying his motion to dismiss the tampering-with-evidence indictment. He
argues that that indictment violated his right to a speedy trial. This assignment of
error is not well taken.
{¶59} Our review of the trial court's decision involves mixed questions of fact
and law. [CITATION], ¶ 8 (1st Dist.). We give due weight to
the inferences drawn from the facts found by the trial court as long as they are
supported by competent, credible evidence. We review the trial court’s conclusions of
law de novo to determine whether the facts satisfy the applicable legal standard. [CITATION], ¶ 5 (1st Dist.).
{¶60} Ohio has codified a defendant’s right to a speedy trial in R.C. 2945.71.
[CITATION] at ¶ 11. Under R.C. 2945.71(C)(2), a person charged with a felony must be
tried within 270 days from his arrest. In [CITATION],
the Ohio Supreme Court held, “When new and additional facts arise from the same
facts as did the original charge and the state knew of such facts at the time of the initial
indictment, the time within which trial is to begin on the additional charge is subject
to the same statutory limitations period that is applied to the original charge.”
{¶61} The Supreme Court later distinguished [CITATION]. It held that the State, in issuing a second indictment against
the defendant, was not subject to the speedy-trial time limits of the original indictment
because the subsequent charges were based on new and additional facts that the State
did not know at the time of the original indictment. Id. at syllabus. It stated,
OHIO FIRST DISTRICT COURT OF APPEALS
“Additional crimes based on different facts should not be considered as arising from
the same sequence of events for the purposes of speedy-trial computation.” Id. at 111.
{¶62} “[A] case by case analysis is necessary when applying the new-and-
additional-evidence standard elucidated by Baker.” [CITATION]. In this case, on December 1, 2020, a grand jury indicted Ross for two
counts of murder, felonious assault, and having weapons under a disability. The first
trial ended with a hung jury on the two murder counts and the felonious-assault count.
On September 21, 2022, the state indicted Ross on one count of tampering with
evidence. The trial court consolidated the two indictments for trial. Following several
continuances, most of which were at Ross’s request, the trial began on August 15, 2023,
well over 270 days from the original indictment.
{¶63} In his motion to dismiss for lack of a speedy trial, Ross argued that the
State knew or should have known that he had disposed of the gun he used to shoot
Tsibouris. First, the police did not find a gun at the scene of the shooting. Second,
police spoke to Otten on November 24, 2020, and she stated that Ross had told her
that the gun was gone.
{¶64} Even though the State knew the gun was missing, it had no knowledge
of what exactly had happened to it. During his interview with the police, Ross denied
that he was involved in the shooting. Although Otten testified that Ross had told her
the gun was gone, she did not know any further details. She stated, “Yes, someone got
rid of it. He got rid of it, or whatever, but it wasn’t going to be found.” That statement
alone was not sufficient to support an indictment for tampering with evidence. A mere
suspicion based on some evidence is not enough to say that the second indictment was
based on information known to the State at the time of the original indictment. See
[CITATION].
OHIO FIRST DISTRICT COURT OF APPEALS
{¶65} It was not until Ross testified in the first trial that the State learned that
Ross had thrown the gun into a wooded area near the scene. Consequently, the State
was not subject to the speedy-trial time limits of the original indictment because the
second indictment was based on new and additional facts that the State did not know
at the time of the original indictment. Therefore, we overrule Ross’s fourth assignment
of error.
V. Self-Defense
{¶66} In his fifth assignment of error, Ross contends that the jury verdicts
finding him guilty of counts two and three, felonious assault and murder, were against
the manifest weight of the evidence. He argues that the state failed to prove that he
was not acting in self-defense. This assignment of error is not well taken.
{¶67} As a preliminary matter, the jury found him guilty of felonious assault
in count two of the indictment. But the trial court merged that count with count three,
one of murder charges. A conviction requires a finding of guilt and sentence. [CITATION]. So even though the jury found him guilty
of felonious assault, there was no conviction because the trial court merged it with the
murder count. See [CITATION]. Therefore, we
address this assignment of error only in relation to the murder conviction.
{¶68} Generally, the elements of self-defense in cases of deadly force are: (1)
the defendant did not create the situation giving rise to the affray; (2) the defendant
had a bona fide belief that he was in imminent danger of death or great bodily harm;
[SEGMENT 5]
and (3) the defendant did not have a duty to retreat or avoid danger. [CITATION]. The
elements of self-defense are cumulative, and a defendant’s claim of self-defense fails
OHIO FIRST DISTRICT COURT OF APPEALS
if any one of the elements is not present. [CITATION].
{¶69} In 2018, the Ohio legislature modified R.C. 2901.05 to change the
treatment for the use of force in self-defense and to add a new burden-shifting
provision. [CITATION]. The statute
was amended again in 2021, but that amendment did not substantively change the
applicable provisions. We apply the statute in effect at the time of the offense. See
[CITATION].
{¶70} Under the applicable former version of R.C. 2905.01(B)(1), the
defendant had the initial burden of production to present evidence that “tends to
support” a claim of self-defense. [CITATION]. While the “tends to support” language was a “new feature” in the 2018
amendment of the statute, that phrase did not change the defendant’s burden of
production. [CITATION]. The defendant must produce evidence
that, when viewed in the light most favorable to the defendant, is sufficient to create a
reasonable doubt as to guilt. [CITATION], both citing [CITATION]. “The question of
credibility is not to be considered.” [CITATION], quoting [CITATION].
{¶71} The burden of going forward with evidence is met when evidence, if
true, “would raise a question in the minds of reasonable jurors concerning the
existence of such issue.” [CITATION]. To meet the
burden of production, the defendant must produce evidence that “when viewed in a
light most favorable to the defendant is sufficient to cast a reasonable doubt as to
guilt.” [CITATION].
OHIO FIRST DISTRICT COURT OF APPEALS
{¶72} Once the defendant met this burden of production, former R.C.
2901.05(B)(2) shifted the burden of persuasion to the prosecution. As a result, the
prosecution does not assume the burden of persuasion until the defendant first meets
his or her burden of production. [CITATION] at ¶ 7; [CITATION], 2020-Ohio-5245, at ¶ 7 (1st
Dist.). The prosecution must produce evidence to disprove one of the elements of self-
defense beyond a reasonable doubt. [CITATION] at ¶ 19; [CITATION] at ¶ 7. We review de novo
whether the trial court applied the proper legal standard and whether evidence of self-
defense was sufficient to shift the burden to the prosecution. [CITATION] at ¶ 5.
{¶73} The State only needs to disprove one of the elements of self-defense
beyond a reasonable doubt. [CITATION], 2020-Ohio-4976, at ¶ 51 (1st Dist.). Therefore, in
evaluating a manifest-weight challenge involving self-defense, we must review the
entire record, consider the credibility of the witnesses, and determine whether the trier
of fact lost its way and created a manifest miscarriage of justice with respect to its
finding that the State disproved at least one of the elements of self-defense beyond a
reasonable doubt. [CITATION], 2024-Ohio-1256, at ¶ 255 (1st Dist.); [CITATION] at ¶ 51. Ross
presented evidence that tended to show that he acted in self-defense. So, the burden
of persuasion fell to the State.
{¶74} The State proved beyond a reasonable doubt that Ross did not have a
bona fide belief of imminent danger. This element has both objective and subjective
tests. [CITATION] at ¶ 56. A defendant’s belief that he was in immediate danger of death or
great bodily harm must be objectively reasonable, and the defendant must have an
honest belief that he was in danger. [CITATION], ¶ 43 (1st Dist.);
[CITATION] at ¶ 56. The state may disprove self-defense by demonstrating that the
defendant’s belief was not objectively reasonable or that he did not have an honest
subjective belief that he faced imminent death or great bodily harm. [CITATION] at ¶ 56.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶75} Ross argues that he was 65 years old and weighed 160 pounds at the
time of the shooting. Tsibouris, on the other hand, was 20 years younger and about
150 pounds heavier, and had a substantial amount of drugs in his system. Ross had
seen the damage that Tsibouris had done to the window by the apartment door to
obtain access only a week before.
{¶76} Ross testified that Tsibouris was agitated. He ignored Ross’s repeated
orders to leave the property. Ross stated that Tsibouris dropped his shoulder and
moved toward Ross, as if to attack him. Tsibouris kept yelling angrily for Otten and
would not take no for an answer. Ross feared for his safety as he felt that he could not
fend off Tsibouris, and therefore, he had no alternative but to raise the gun toward
Tsibouris. Afterward, Ross had no memory of pulling the trigger. He said it all
happened fast.
{¶77} Ross’s argument requires his testimony to be believed. The State
presented Asberry’s testimony, which was directly opposed to Ross’s testimony.
Asberry testified that Tsibouris had been waiting about 15 minutes for Otten to come
down. When he walked to the front door, he did not appear angry or aggressive.
Asberry then asked him what was taking so long, and Tsibouris looked at him and said
that Otten was coming down. Immediately afterward, the door opened, Tsibouris
turned around and he was shot.
{¶78} Asberry stated that Tsibouris’s arms were down by his side when he was
shot and that no conversation with anyone had occurred before he was shot. “There
was no time for that,” he said. He also stated that Tsibouris had not grabbed the
doorknob or tried to get into the building. Additionally, Otten had testified that Ross
went downstairs to see who was knocking, she heard Ross say, “Who is it?” and then
she heard a gunshot.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶79} Further, Dr. Laib, the coroner, testified that there was a muzzle imprint
on Tsibouris’s forehead that meant that the murder weapon had been pressed firmly
and forcefully against the skin when it was fired. She found soot and gunpower deep
within the wound, dispelling Ross’s claim that he shot Tsibouris after he lunged at him.
{¶80} Even though Tsibouris was bigger and younger than Ross, he was
unarmed. He was not there to find Ross, but instead he wished to speak to Otten.
After the shooting, Ross fled the scene, and when he spoke to police, he repeatedly lied
to them, undercutting his claim that he feared for his life. Even if Ross had a subjective
belief that he was in imminent danger, a reasonable trier of fact could have determined
that that belief was not objectively reasonable.
{¶81} Viewing the evidence in a light most favorable to the prosecution, the
jury could have reasonably found that the State disproved the imminent-belief-of-
harm element beyond a reasonable doubt. See [CITATION], at ¶ 50 (1st
Dist.); [CITATION]. The jury could have believed the
State’s evidence and disbelieved Ross’s testimony. Matters as to the credibility of
evidence are for the trier of fact to decide. [CITATION]. Consequently, we overrule Ross’s fifth assignment of error.
VI. Summary
{¶82} In sum, we hold that Ross was not denied the effective assistance of
counsel, the trial court did not err in failing to give a limiting instruction on the
character evidence, Ross’s speedy-trial rights were not violated, and the state
disproved one of the elements of his self-defense claim. Consequently, we overrule his
five assignments of error and affirm the trial court’s judgments.
Judgments affirmed.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230646
TRIAL NO. B-2303846
Plaintiff-Appellee, :
O P I N I O N.
vs. :
DARREN CLARKE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 2, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
[SEGMENT 6]
BOCK, Presiding Judge.
{¶1} Roughly 30 minutes after R.W. and defendant-appellant Darren Clarke
engaged in an altercation that left Clarke dazed on the ground, Clarke re-ignited the
altercation and attacked R.W. Following a bench trial, the trial court convicted Clarke
of felonious assault. On appeal, Clarke argues that his conviction is against the
manifest weight of the evidence because he acted in self-defense, or that he attacked
R.W. in a sudden fit of rage. We disagree. First, we hold that a fear of great bodily harm
at the hands of an incapacitated person is objectively unreasonable. Second, kicking
an incapacitated person in the head is excessive force. Third, a 30-minute period after
a fight is a sufficient cooling-off period to dampen any passion or rage.
{¶2} Clarke also contends that he received constitutionally ineffective
assistance of counsel because his attorney failed to present expert testimony of his
mental state. But on direct appeal, Clarke can only speculate about what his
hypothetical expert would explain. Therefore, he cannot show that there is a
reasonable probability that the outcome of his trial would have been different.
{¶3} We overrule both assignments of error and affirm Clarke’s conviction.
I. Facts and Procedure
{¶4} After two late-night fights between Clarke and R.W. near elevators on
the second floor of an apartment building, the state charged Clarke with felonious
assault in violation of R.C. 2903.11(A)(1).
{¶5} At the bench trial, the state built its case primarily around surveillance
footage from inside of the apartment building. A responding officer explained that the
cameras near the elevators captured an initial “altercation” between Clarke and R.W.
inside one elevator at roughly 10:45 p.m. The surveillance footage captured by a
OHIO FIRST DISTRICT COURT OF APPEALS
hallway camera shows Clarke falling out of the elevator onto his back. Then R.W. stood
in the elevator doorway over a visibly dazed Clarke. R.W. shoved Clarke’s legs out of
the elevator and walked to an adjacent elevator. Clarke stumbled and struggled to
maintain his balance as he tried to stand. R.W. left in an elevator as a bystander helped
Clarke to his feet.
{¶6} Roughly 30 minutes later, the footage shows R.W. inside of a different
elevator. As an officer testified, R.W.’s hands were “down to his sides” and relaxed,
nonchalantly tapping a rhythm with his right hand. Clarke exited from a second-floor
apartment and walked to the elevators. An elevator door opened in front of Clarke.
R.W. left the elevator and took two steps into the hallway. Clarke, then face-to-face
with R.W., paused briefly before punching R.W., knocking him to the ground. As R.W.
was motionless on the ground, Clarke, using great force, stomped on R.W.’s head five
times. R.W. continued lying motionless and appeared to be unconscious.
{¶7} Clarke took a five-second break to use his cell phone, and then resumed
his attack. Meanwhile, a resident came out of her apartment nearby and rushed to stop
Clarke. Clarke held off the resident as he swung his leg back and kicked R.W.’s head
three times with enough force to rotate R.W.’s body roughly 45 degrees. R.W. was
initially lying parallel to the elevator doors after the first punch but ended up
perpendicular to the elevators. Clarke continued fending off the resident as he kicked
R.W. in the head two more times with force that caused R.W.’s head to jerk back and
forth. With each kick, blood splattered across the hallway.
{¶8} Five more residents rushed to the scene as Clarke hovered over R.W.
and then stomped on his head one final time. In total, Clarke delivered one punch and
13 kicks to R.W.’s head in 40 seconds. As multiple residents restrained Clarke, several
OHIO FIRST DISTRICT COURT OF APPEALS
others attended to R.W., who was lying in a pool of blood. Three residents checked to
see if R.W. had a pulse.
{¶9} An officer testified that R.W. had to be intubated. When an officer
interviewed R.W. at a physical rehabilitation center, he had no memory of that night.
That officer also interviewed Clarke, who said that his “head still hurt” when he saw
R.W. exit from the elevator and that he was angered by the fact that R.W. failed to
“acknowledg[e] the prior interaction.”
Self-defense and mitigation evidence
{¶10} Clarke raised two arguments in his defense. First, he argued that he
acted in self-defense. Alternatively, Clarke asserted that he acted in a sudden fit of
rage, which mitigated the severity of the offense.
{¶11} In support, Clarke’s friend testified that she was visiting Clarke on the
night of the fights to help Clarke unpack, as he had just moved into his apartment. She
described the first altercation between Clarke and R.W. on the elevator. She explained
that R.W. was “intoxicated,” “F’d up,” and that she “just didn’t like the look on his
face.” While she admitted that she and Clarke had consumed alcohol, she testified that
R.W. “was very intoxicated” and that she “could smell it off of him.”
{¶12} According to Clarke’s friend, R.W. warned Clarke that he was too close
to him in the elevator. She recalled that Clarke asked R.W. what he meant, and R.W.
responded, “I said you too close. * * * [B]ack up. Back the ‘F’ up.” She testified that
Clarke told R.W. to “chill out,” and R.W. threatened to “ ‘F’ [Clarke] up” and Clarke
should “know I kill people out here.” Next, according to the friend, R.W. attacked
Clarke and “just kept hitting him,” so she pushed her way out of the elevator. Clarke’s
friend testified that she called the police, but they never arrived.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Clarke testified that he had “no clue” who R.W. was, or why he attacked
Clarke in the elevator. The only thing he recalled was being hit by R.W.—he had no
recollection of what followed. After the first altercation, Clarke checked on his friend
and then went to a second-floor apartment across from the elevators.
{¶14} Clarke explained that he was attempting to return to his fifth-floor
apartment when the elevator doors opened, and R.W. emerged. He testified that, had
he known that R.W. was on the elevator, he would have used the stairs.
{¶15} According to Clarke, R.W. commented, “What’s up, motherfucker” as he
walked off the elevator, which made Clarke afraid of what R.W. would do next and
believe that R.W. would attack him again. Clarke testified that he was “a tad bit” angry
“but more so worried that I am going to be attacked again.” Clarke was unsure of what
R.W. was going to do, so he “reacted.” He said that he struck R.W. out of fear and to
prevent further injury—Clarke described it as “an out-of-body experience.” Clarke
testified that he continued to kick R.W. because he did not “know [R.W.]. He just
attacked me out of nowhere so I don’t know what he’s capable of.”
{¶16} The trial court found Clarke guilty and explained its rejection of Clarke’s
self-defense and mitigation defenses. Beginning with the first altercation, the trial
court found it “weird” that R.W. walked “over” Clarke and did not touch Clarke in the
hallway. While it noted that Clarke’s and his friend’s testimony was somewhat self-
serving, it found that “something happened in there.”
{¶17} But the trial court found that Clarke was not acting in a sudden fit of
rage because there was not “enough time for him to say what’s up, motherfucker,
before you hit him.” The trial court continued, “And even if he did he’s walking away
from you and it’s a half an hour later. And he walks away from you and you clock him
OHIO FIRST DISTRICT COURT OF APPEALS
and he’s down, but you don’t stop.” And Clarke was “fine walking out of that -- [his]
friend’s [apartment].”
{¶18} The trial court also found that Clarke’s force was excessive. It
emphasized that R.W. was “down and you keep going and you keep going.” Assuming
Clarke “thought he was going to come and get you, whatever, * * * you can’t do what
you did to him. That is not reasonable.”
{¶19} The trial court sentenced Clarke to four-to-six years in prison. Clarke
appeals in two assignments of error, claiming that his conviction was against the
manifest weight of the evidence and that he received ineffective assistance of counsel.
II. Law and Analysis
{¶20} In his first assignment of error, Clarke argues that his felonious-assault
conviction is against the manifest weight of the evidence. First, he maintains that the
state failed to disprove his self-defense claim. The state disagrees and contends that
[SEGMENT 7]
“the video essentially speaks for itself.” Second, he argues that he should have been
convicted of aggravated assault as a lesser offense.
A. Clarke’s fear of harm became unreasonable, and his force was excessive
{¶21} The trial court found that the state disproved Clarke’s self-defense
claim, so we must determine whether that finding is against the manifest weight of the
evidence. [CITATION], ¶ 37. To
do so, we must review “ ‘the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses and determine whether, in
resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
OHIO FIRST DISTRICT COURT OF APPEALS
trial ordered.’ ” [CITATION],
¶ 59, quoting [CITATION].
{¶22} Clarke had the initial burden of producing evidence tending to support
that (1) he did not create the situation leading to the affray; (2) he sincerely believed
he was in imminent danger of great bodily harm or death from which he could escape
only by using force; and (3) he did not violate a duty to retreat. [CITATION]. If Clarke met this initial burden
of production, the burden shifted to the state to disprove any of the self-defense
elements beyond a reasonable doubt. [CITATION] at ¶ 29.
{¶23} To succeed on his self-defense claim, Clarke’s belief that he faced
imminent danger of death or great bodily harm had to be an honest belief, and
objectively reasonable. [CITATION]. And a defendant’s “force must be reasonably proportionate to the threat.” [CITATION]; see [CITATION]; see also [CITATION].
{¶24} It is hard to imagine a viable self-defense claim when the defendant
continues using force after the victim appears to lose consciousness. We have rejected
a defendant’s self-defense claim, in part, because the defendant “continued to strangle
[the victim] after [the victim] had been rendered unconscious.” [CITATION]. It is unreasonable
to fear great bodily harm from a person lying motionless on the ground.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} Moreover, Ohio courts have held that “kicking an unconscious person
in the head is excessive force.” [CITATION]. In [CITATION], the defendant did not act in self-defense when witnesses testified
that the victim “was punched ten times and kicked fifteen more times, all the while
lying helpless and unconscious on the ground.” Id. at ¶ 14. In [CITATION], the defendant
was not acting in self-defense when, according to a witness, he kicked the victim who
was “unconscious on the ground, not moving and not fighting back.” [CITATION] at ¶ 12.
Recently, the Eighth District affirmed a conviction where “video evidence depicted
[the victim] lying on the ground, defenseless and not taking any actions to defend
herself as [the defendant] repeatedly hit her.” [CITATION].
{¶26} Nothing in the surveillance footage suggests that the trial court lost its
way when it rejected Clarke’s self-defense claim. First, R.W. collapsed to the ground
after the initial punch and appeared to lose consciousness. The footage shows Clarke
kicking and stomping on R.W.’s head, taking a short break, and then resuming his
attack. While Clarke testified that he acted out of fear because R.W. might get back up,
Clarke was able to pause his attack and attempt a phone call. Assuming that Clarke
did, in fact, hold a subjective belief that R.W. could retaliate, that R.W. was motionless
on the floor as Clarke used his phone should have dispelled that belief. And like the
defendants in [CITATION], and [CITATION], Clarke used excessive force.
{¶27} The trial court’s findings, and ultimate rejection of Clarke’s self-defense
claim, are consistent with the weight of the evidence.
OHIO FIRST DISTRICT COURT OF APPEALS
B. There was a sufficient cooling-off period to dampen Clarke’s passion and rage
{¶28} Clarke also argues that “he acted in a sudden fit of rage,” which makes
him guilty of aggravated assault, a lesser included offense of felonious assault. A
defendant can be found not guilty of the offense charged, “but guilty of an inferior
degree thereof, or of a lesser included offense.” Crim.R. 31(C); see R.C. 2945.74.
{¶29} The trial court convicted Clarke of felonious assault in violation of R.C.
2903.11(A)(1), which makes it a crime to “knowingly * * * cause serious physical harm
to another.” Unless the victim is a law enforcement officer, felonious assault is a
second-degree felony. R.C. 2903.11(D)(1)(a).
{¶30} As an inferior offense, aggravated assault is a fourth-degree felony and
identical to felonious assault, “except for the additional mitigating element of serious
provocation.” [CITATION], quoting [CITATION]. Specifically, the offender must cause the
physical harm “while under the influence of sudden passion or in a sudden fit of rage,
either of which is brought on by serious provocation occasioned by the victim that is
reasonably sufficient to incite the person into using deadly force.” R.C. 2903.12(A)(1).
This “render[s] the provoked defendant less worthy of blame and subject to less
punishment.” [CITATION]. But “the defendant must react suddenly”—a provocation defense
is not available when there is a sufficient cooling-off period. Id. at ¶ 48.
{¶31} What constitutes a serious provocation “ ‘is a factual inquiry that
contains both objective and subjective components.’ ” [CITATION], quoting Smith at ¶ 46. Beginning with
OHIO FIRST DISTRICT COURT OF APPEALS
the objective component, a serious provocation is an event “intense enough to cause
an ordinary person to lose control of their emotions, acting out of passion rather than
reason.” Id., citing [CITATION] at ¶ 46. When determining if a provocation was objectively
reasonable, this court “does not consider the defendant’s individual characteristics,
such as short-temperedness.” Id. In [CITATION], we explained that “[p]ast altercations and
past verbal threats do not satisfy the test for sufficient provocation where there is
sufficient time for cooling off.” [CITATION] at ¶ 48. Likewise, “[w]ords alone will not
constitute reasonably sufficient provocation to incite the use of deadly force in most
situations.” Id.
{¶32} Turning to the subjective component, this court must consider both the
defendant’s emotional and mental state and the circumstances surrounding the
incident to determine whether the defendant acted under sudden passion or a fit of
rage. Id. at ¶ 20. A defendant’s “fear alone is insufficient to show that a defendant acted
under a sudden passion or fit of rage.” [CITATION]; see [CITATION] at ¶ 48.
{¶33} Clarke argues that he attacked R.W. in response to R.W.’s initial
unprovoked attack in the elevator and R.W.’s subsequent taunt 30 minutes later.
Clarke argues that the provocation in this case is similar to the evidence of provocation
in [CITATION]. In [CITATION], this court held that an objectively serious provocation
preceded James Rhymer’s killing Thomas Landacre because
Landacre was dating the mother of Rhymer’s child and was a father
figure to that child. * * * Landacre had previously threatened him with
violence, had texted him a picture of his penis, had broken [the mother
of Rhymer’s child]’s car windows, and had tried to kill [Rhymer’s child].
OHIO FIRST DISTRICT COURT OF APPEALS
Landacre showed up to the custody exchange uninvited, extremely
agitated, and under the influence of drugs. Rhymer testified that
Landacre challenged him to a fight in front of [Rhymer’s child], yelling,
“There you are you, you are hiding from me, I found you, little pussy
bitch, come on pussy bitch, let’s do this right now, let’s do this
motherfucker.” Furthermore, Rhymer testified that Landacre pushed
him and tried to grab the firearm from him.
[CITATION] at ¶ 32. While Clarke likens the facts of this case to [CITATION], the victim’s
statements in [CITATION] were highly inflammatory and deeply personal, in contrast to
R.W.’s alleged taunt of “what’s up, motherfucker?”
{¶34} Plus, the trial court questioned whether R.W. made that remark. While
Clarke testified that R.W.’s remark prompted him to attack R.W., the trial court
explained, “I don’t think there’s enough time for him to say what’s up, mother fucker,
before you hit him. I don’t think he could have said that. From the video I don’t think
there’s enough time left for him to say that.” And elsewhere, the trial court questioned
the credibility of Clarke’s testimony. It is well established that this court will presume
[SEGMENT 8]
in a bench trial, the trial court is in the best position to view the witnesses’ manner and
demeanor, account for inconsistencies, and determine witness credibility. [CITATION]. The footage does not
contradict or undermine the trial court’s finding. And absent a taunt, the only fact
supporting Clarke’s provocation theory is the initial fight in the elevator. Ohio courts
have routinely held that “past incidents * * * are not sufficient” to show a serious
provocation. [CITATION].
OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} Finally, Ohio courts have held that “fifteen to twenty minutes after [a]
fight” is a sufficient cooling-off period. See [CITATION]; see also [CITATION] (collecting cases). The trial court appeared to find
that Clarke had sufficient time to cool off after the first fight. Specifically, it explained
that the first fight “couldn’t have been that bad because [Clarke’s friend] left you and
a half hour goes by. So if you’re still pissed off about being assaulted, you don’t call the
police. You don’t look for the police. You stick around and go get some smokes.” The
trial court’s findings are consistent with Ohio law.
{¶36} As the trial court noted, something happened when Clarke first
encountered R.W. in the elevator. We do not doubt that Clarke attacked R.W. in
response. But 30 minutes had passed between that fight and Clarke’s attack, which
was a reasonably sufficient time for Clarke’s passion to cool. We defer to the trial
court’s finding that R.W. did not challenge Clarke when he stepped off the elevator.
We hold that the trial court did not lose its way when it found that Clarke was not
acting in a sudden fit of rage when he attacked R.W.
{¶37} Clarke’s conviction is not against the manifest weight of the evidence.
We overrule Clarke’s first assignment of error.
C. Speculation does not establish ineffective assistance of counsel
{¶38} In his second assignment of error, Clarke claims that his trial attorney
was ineffective in violation of his right to counsel for failing to introduce expert
testimony of his mental state. He argues that his self-defense claim and mitigation
defense both implicate his mental state, and “[a]n expert could have interviewed
OHIO FIRST DISTRICT COURT OF APPEALS
and/or tested Mr. Clarke for how he responds to stress and threats,” which would have
assisted the trial court in considering whether his response to R.W. was reasonable.
{¶39} To establish an ineffective-assistance-of-counsel claim, Clarke must
show that his attorney’s “performance was deficient and that the deficient
performance prejudiced the accused.” [CITATION], 2021-Ohio-1693, ¶ 65, quoting [CITATION], 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that his attorney’s performance was
deficient, he must “show his lawyer’s performance fell below an objective standard of
reasonable representation.” [CITATION], 2010-
Ohio-5240, ¶ 25, citing [CITATION] at paragraph two of the syllabus. To show prejudice,
he must demonstrate that “there is a reasonable probability that the outcome of the
proceedings would have been different but for the complained-of conduct.” [CITATION] at
¶ 65, citing [CITATION] at 694.
{¶40} As Clarke points out, typically “the decision not to call an expert witness
does not constitute ineffective assistance of counsel because that decision is solely a
matter of trial strategy.” [CITATION] at ¶ 66, citing [CITATION], 544 N.E.2d 622 (1989). Yet, Clarke argues that his attorney “failed to put on
any expert evidence to establish Mr. Clarke’s state of mind.”
{¶41} Clarke offers little more than speculation about this expert testimony.
And without more, he cannot establish prejudice because when “ ‘[n]othing in the
record indicates what kind of testimony an [expert witness] could have provided,’
resolving the issue of whether counsel was deficient in failing to employ an expert is
‘purely speculative.’ ” [CITATION] at ¶ 26, quoting [CITATION], 721 N.E.2d 52 (2000); see [CITATION],
OHIO FIRST DISTRICT COURT OF APPEALS
[CITATION]; see also [CITATION].
{¶42} Still more, we have held that speculative assertions about the substance
of hypothetical expert testimony cannot establish prejudice. See [CITATION], at ¶ 65. Clarke’s arguments are ill-suited
for an ineffective-assistance claim raised on direct appeal because there is no evidence
in the record related to his mental state and he cannot offer anything more than mere
speculation.
{¶43} Since mere speculation does not establish an ineffective-assistance
claim, we overrule Clarke’s second assignment of error.
III. Conclusion
{¶44} We overrule Clarke’s assignments of error and affirm his conviction.
Judgment affirmed.
BERGERON and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113455
v. :
TAWANN SMITH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 25, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-681060-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mason P. McCarthy, Assistant Prosecuting
Attorney, for appellee.
Patituce & Associates, Joseph C. Patituce, and Megan M.
Patituce, for appellant.
SEAN C. GALLAGHER, J.:
Tawann Smith appeals his conviction for felonious assault along with
two attendant firearm specifications. The conviction arose from his shooting the
victim during a fistfight between the victim and Smith and his brother. Smith was sentenced to three-year terms of imprisonment on each of the two firearm
specifications, which are consecutive to each other, and the indefinite two-to-three-
year term imposed on the felonious assault conviction.1 This timely appeal followed.
On the day of the shooting, recorded from multiple angles by security
cameras installed inside the gas station in which the incident took place, the victim
was at the counter buying various sundries. A line formed behind him with Smith
entering while the victim was finishing the transaction. The line ended at the store’s
entrance. The victim testified he saw Smith enter but paid him no mind. The two
were once friends. A falling out occurred about a year before the shooting over the
victim contacting Smith’s girlfriend. As the victim exited the store, he had to pass
Smith. The video does not depict any obvious physical contact between the two at
that time, but the victim thought he may have stepped on Smith’s foot under the
camera’s viewing angle. Smith immediately turned and took at least two steps
toward the victim, who had exited the store and had his back toward Smith at the
time. After a brief, albeit animated, discussion, Smith aggressively pushed the
victim and they both began shoving and wrestling with each other. Other patrons
cleared the area. Smith admitted to starting the fight by pushing the victim,
although he claimed the victim was verbally aggressive. Shortly after the two were
Smith turned down the State’s plea offer to dismiss the firearm specifications and
plead guilty to a single count of felonious assault in favor of relying on the claim of self-
defense at trial. Imposing sentences on two of the firearm specifications, one of which
was attendant to a merged offense, is required under the combined application of R.C.
2929.14(B)(1)(g) and [CITATION]. Smith was advised of this fact
during the pretrial proceedings. The provided text does not contain any court ruling citations. Therefore, no replacements are needed. Here is the text preserved as it is:
entangled in an upright wrestling match inside the store, with the victim being
pinned up against a cooler, Smith’s brother joined in and punched the victim in the
back of the head. Smith’s brother had seen the fight and came to help Smith, but he
did not see how it started.
Smith, who was armed, dropped his handgun during the initial stage
of the fight. When his brother stepped in and started fighting with the victim, Smith
picked up the handgun and fired at the victim as he was engaged with Smith’s
brother. The victim was wounded in the stomach. The responding officer found the
victim with his intestine hanging out and administered emergency aid until the
ambulance arrived. He survived, but a significant incision from chest to navel was
needed to repair the damage caused by the bullet. The victim was unarmed at the
time of the fight, a fact that Smith retrospectively conceded in his trial testimony.
At trial, Smith presented text messages from the victim that were sent
[SEGMENT 9]
eight months before the shooting, around the time the falling out between the two
occurred. In those messages, which only included the victim’s side of the messaging,
several comments were made about the two fighting to resolve their dispute.
Although there was mention of a firearm, Smith testified to not understanding that
specific statement at trial. There appears to have been no contact between the two
until the shooting.
Smith claimed that as soon as he saw the victim in the gas station, he
was in fear for his life in light of the earlier texted threats. He nonetheless remained
in the store while the victim was finalizing his purchase. According to Smith, the victim “shoulder swiped” him as he passed and then stepped on his foot. Smith
advanced toward the victim to inquire into the perceived slight. The victim had
already exited by that point and was standing outside the store with the door still
open. Smith claims the victim was verbally aggressive and said that they should both
put their weapons down to fight — the victim unremarkably denied saying anything
to that effect. After that brief “discussion,” Smith pushed the victim, claiming to do
so to create personal space. That act nonetheless started the fistfight. Smith thought
the victim was attempting to grab Smith’s concealed firearm while the two wrestled
against the store’s cooler. He stated in response to being asked why he fired the
shot: “[b]ecause I feel like if I would have still continued to fight, he could have got
my gun and killed me and my family [(who were in the car parked at one of the fuel
pumps)].” Thus, to summarize that testimony in context, Smith believed his life was
in danger because in the fistfight he instigated, he believed he would be overpowered
and his concealed handgun turned against him.
The video recording of the fight, as viewed by the jury, demonstrates
that Smith had possession of his handgun at a distance from the victim, who was
then fighting with Smith’s brother at the time the shot was fired. Smith’s brother
and the victim, although wrestling and throwing unaimed punches, did not appear
to be getting the better of the other. After the shooting, the fight ended. Smith and
his brother fled the store. Smith returned to retrieve his hat, which had fallen off
during the tussle. At trial, he claimed to be looking for his car key, which he found
in his pocket. In response to the victim’s question about being shot, Smith said he did so in self-defense. Smith left the scene and called the Garfield Heights Police
Department to explain what had just occurred.
In the sole assignment of error, Smith claims his conviction, entered
following a jury trial, is against the weight of the evidence because he and his
brother’s testimony established that he acted in self-defense.
When evaluating a claim that a jury verdict is against the weight of
the evidence, appellate courts “review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that we must reverse the conviction and order
a new trial.” [CITATION], ¶ 168, citing [CITATION], ¶ 17. Reversing a
conviction based upon the weight of the evidence occurs “‘only in the exceptional
case in which the evidence weighs heavily against the conviction.’” [CITATION] at
387, quoting [CITATION].
In order to disprove the claim of self-defense, the State must present
evidence “‘beyond a reasonable doubt that the defendant: (1) was at fault in creating
the situation giving rise to the affray; (2) did not have reasonable grounds to believe
or an honest belief that he or she was in imminent danger of bodily harm; or
(3) violated a duty to retreat or avoid danger.’” [CITATION], ¶ 25 (1st Dist.), quoting [CITATION], ¶ 11 (1st Dist.). The first
and third elements are straightforward and are applied as written. As to the second element, “‘the test for a bona fide belief of imminent bodily harm is both objective
and subjective: whether the defendant’s belief is objectively reasonable and whether
the defendant subjectively had an honest belief of imminent bodily harm.’” Id. at
¶ 26, quoting [CITATION]
Smith’s argument that the trier of fact lost its way in rejecting his
assertion of self-defense is solely focused on subjective beliefs to the exclusion of the
State’s evidence. It is well settled that “‘a conviction is not against the manifest
weight of the evidence simply because the [trier of fact] rejected the defendant’s
version of the facts and believed the testimony presented by the state.’” [CITATION], quoting [CITATION]; see also [CITATION]. This is because the trier of fact is free
to believe all, some, or none of the evidence presented by the State or defense at trial.
[CITATION]. We cannot conclude that the jury
lost its way.
The State presented evidence that the victim was not armed, much
less brandishing a firearm, at the time of the shooting and was not doing anything
other than engaging with Smith and his brother’s belligerence, which was limited to
fists before Smith used his deadly weapon. Importantly, the video demonstrated,
and Smith conceded, that he started the physical altercation by pushing the victim
at a time when the two were merely engaged in a heated conversation. Moreover, Smith dramatically escalated what had been limited to fisticuffs by shooting the
victim in the stomach.
Inasmuch as Smith relies on the fact that the victim may have stepped
on his shoe or “brushed his shoulder” as evidence that the victim was the initial
aggressor, those acts in and of themselves do not constitute the start of what became
a two-on-one fistfight after Smith aggressively confronted and then pushed the
victim. See [CITATION] (“‘Ohio courts have long
recognized that a person cannot provoke assault or voluntarily enter an encounter
and then claim a right of self-defense.’”), quoting [CITATION]; see also [CITATION] (“Generally, a defendant,
having willingly advanced toward a volatile situation cannot rely on the affirmative
defense of self-defense.”). The video suggests that had Smith not advanced toward
and confronted the victim, no violence would have ensued. The victim was leaving
the store when stopped and confronted by Smith. Having willingly advanced to
engage in physical combat with someone he subjectively claimed possessed a
weapon, Smith cannot rebut the State’s proof that he was anything but the initial
aggressor. See [CITATION]. Regardless, even taking into consideration Smith’s
subjective belief that the two men were armed before Smith initiated the physical
fight, this is best characterized as mutual combat between two armed opponents,
which generally does not support a claim of self-defense. See [CITATION]. And beyond all that, even if Smith’s instigation of the fight were
ignored, Smith escalated the potential lethality of the altercation by using a deadly
weapon in a situation in which the objective evidence did not establish that either
he or his brother were in imminent danger of being severely beaten by the victim.
See, e.g., [CITATION] (conviction for
felonious assault is not against the weight of the evidence because “witnesses
reasonably could conclude defendant . . . in effect escalated a fist fight into a shoot
out” and “exceeded the force he was entitled to use”); see also [CITATION]
(collecting cases establishing that self-defense is
unavailable as a defense where the force used is so disproportionate to the perceived
threat that it demonstrates an unreasonable purpose to injure). The jury was free to
consider Smith’s version of his conduct in comparison to the video evidence
demonstrating that a physical altercation was taking place, but none of the
combatants were taking any actions consistent with putting anyone else in mortal
danger, at least until Smith used the firearm.
A conviction will not be reversed as being against the manifest weight
of the evidence except in an “exceptional case in which the evidence weighs heavily
against the conviction.” [CITATION]. This is not that case. The
primary evidence introduced against Smith was the video recordings of the entire
altercation. The jury was free to draw its own conclusions as to what actually
occurred. [CITATION]. And although there are
arguably some inconsistencies in the State’s evidence, none of the inconsistencies rise to such a level as to impact the overwhelming evidence of Smith’s guilt and all
those inconsistencies were addressed by the State for the jury’s consideration. In
short, the trier of fact was free to reject Smith’s version of events and he has not
demonstrated that in resolving the credibility of the State’s evidence, the trier of fact
clearly lost its way in finding him guilty of felonious assault or the two attendant
firearm specifications.
The conviction is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR As there is no specific text provided under the part of a court ruling, I will provide a general example to illustrate how the replacement should be done, following the rules mentioned. Please provide the actual text to perform the exact replacements if needed.
[SEGMENT 10]
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## Example Court Ruling Text Before Processing ##
"In the case of People v. Whitaker, 2024 IL App (1st) 232009, the court stated that the evidence presented was admissible. This ruling aligns with previous decisions such as Jackson v. Board of Election Commissioners, 2012 IL App (1st) 120348, and the principles discussed in Smith v. Jones. However, in state-v-warth, the circumstances were different, leading to a unique decision.
Moreover, we take into consideration the decision in People v. Deleon, which provides further insight into this matter."
## Example Court Ruling Text After Processing ##
"In the case of [CITATION], the court stated that the evidence presented was admissible. This ruling aligns with previous decisions such as [CITATION], and the principles discussed in [CITATION]. However, in [CITATION], the circumstances were different, leading to a unique decision.
Moreover, we take into consideration the decision in [CITATION], which provides further insight into this matter."
---
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230455
TRIAL NO. 23CRB-9124
Plaintiff-Appellee, :
vs. :
O P I N I O N.
PIERRE BRADFORD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 12, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Ashton Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Pierre Bradford was convicted, after a jury trial, of violating a protection
order. In two assignments of error, Bradford argues that the trial court erred by
permitting other-acts testimony that was irrelevant and prejudicial, and his conviction
was not supported by sufficient evidence and was contrary to the manifest weight of
the evidence.
Factual Background
{¶2} Bradford was charged with violating a protection order that prohibits
him from entering Fanta Spell’s “place of employment,” requires him to not be present
within 500 feet of Spell, and prohibits him from initiating or having contact with Spell
or her places of employment. Bradford pled not guilty and requested a jury trial.
{¶3} Prior to trial, the city filed a notice of intent to introduce other-acts
evidence to show intent, knowledge, and absence of mistake. The city intended to elicit
testimony from Spell regarding Bradford’s criminal conduct that ultimately resulted
in the issuance of the protection order. Bradford filed a motion in limine seeking to
prevent the other-acts testimony. At the hearing on the motion, the city explained that
Spell would testify to the following facts: that Bradford threw urine on her while she
was outside of the streetcar’s office at the streetcar facility. The purpose was to give
the jury context and “make[] it clearer for the jury as to why a protection order was
asked for in the first place.”
{¶4} Bradford argued that the prior conviction was inadmissible and
prejudicial, and had no probative value because Bradford was not challenging the
validity or service of the protection order. Bradford further argued that the factual
findings by the court that issued the order had been redacted, and allowing the witness
OHIO FIRST DISTRICT COURT OF APPEALS
to testify to the underlying facts had no probative value and was highly prejudicial.
{¶5} The court concluded that the testimony should not be analyzed as prior
bad acts because the acts were relevant to the issuance of the order and provided the
jurors with context regarding the issuance of the protection order, and that the
probative value outweighed the prejudice. The court offered to give a limiting
instruction when the evidence was introduced.
Trial Testimony
{¶6} The city’s first witness was Donna Faulks who is employed as a
supervisor for the streetcar. She supervises the streetcar operators and is responsible
for track access. Fanta Spell is a streetcar operator who is under the supervision of
Faulks. Faulks knew that Spell had obtained a protection order against Bradford.
Faulks also knew Bradford from when she was a streetcar operator.
{¶7} On May 29, 2023, Faulks was conducting an external ride evaluation of
Spell who was operating a streetcar. After completing Spell’s evaluation, Faulks was
driving to the next streetcar to complete another external ride evaluation. As she
approached 12th and Vine Streets, she looked to her right and saw Bradford standing
on a streetcar platform. Faulks knew that Spell was operating a streetcar that would
approach that platform in a few stops, so she decided to warn Spell and stop her from
approaching the platform. Faulks, who was driving a marked city of Cincinnati
supervisor vehicle, turned on her hazard and operational lights. Bradford saw her car
and went north on Vine Street. Faulks drove to the streetcar maintenance and
operations facility (“MOF”) at 1927 Race Street and informed her supervisor that she
had seen Bradford. Faulks testified that the streetcar workplace is a 3.5 mile loop with
OHIO FIRST DISTRICT COURT OF APPEALS
18 stops through downtown Cincinnati. The platforms are leased to SORTA by the
city.
{¶8} Fanta Spell testified that she is employed as a streetcar operator.
Bradford objected when the prosecutor asked Spell how she knew Bradford. Prior to
her response, the trial court instructed the jury that the testimony is “being admitted
to provide context as to the issuance of the civil protection order. It is not received
and you may not consider that prior conduct for any other purpose.” Spell testified
that she knew Bradford “from him boarding the streetcar and seeing him outside the
streetcar.” Spell was asked why she filed a petition for a protection order against
Bradford, and over objection, Spell testified, “Because on June 16th of 2022, there was
an assault against me by Mr. Bradford who, outside of my employer, waited for me to
come outside and he proceeded to throw urine on me.” At the time she obtained the
protection order, Spell was a streetcar operator.
{¶9} A side bar discussion occurred, and Bradford objected to the testimony
that he committed an assault. Bradford was charged with assault, but convicted of
menacing. The court instructed the jury to disregard the word “assault.” A redacted
copy of the protection order was admitted into evidence by agreement of the parties.
All of the factual findings were redacted.
{¶10} Spell testified that when she returned to MOF and got off the streetcar,
she learned that Bradford had been at the streetcar platform. When the streetcar stops
at a platform, she is approximately two feet from the platform. Spell further testified
that she had no contact with Bradford that day and did not see him at the 12th and
Vine stop.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Sergeant Linda Sellers, who works for the Cincinnati Police
Department, was working a streetcar detail that day. As she was signing in, she
learned that Bradford had been on the platform. Sellers spoke with Faulks, reviewed
the protection order, went back to the district, and eventually filed charges.
{¶12} Deputy Katie Carrier testified that she ordinarily serves protection
orders at the jail. The court called for a brief side bar, then informed the jury that the
parties stipulated that Bradford was served with the protection order. No further
questions were asked of Carrier.
{¶13} Again the trial recessed briefly, and Bradford requested a mistrial due
to the testimony that Bradford assaulted Spell, which the court overruled. Then
Bradford moved for a judgment of acquittal because Box 13 on the protection order
does not specify that Bradford is prohibited from streetcar platforms. Box 13 provides
a space for the trial court to issue further orders. He further argued that Bradford had
no contact with Spell and did not violate the protection order.
{¶14} The city argued that Bradford violated the provision that states:
“Respondent shall not enter the residence, school, business, place of employment of
the protected party.” The city contended that the streetcar platforms constitute the
place of employment. The court overruled the motion, concluding that the jury should
determine whether the platform “falls within the parameters of the protection order.”
{¶15} Both parties rested and proceeded to closing arguments. The city
argued to the jury that Bradford violated the provision that prohibited him from
entering Spell’s place of employment because the streetcar, the headquarters, and the
platforms are part of the place of employment. The order specifically included “the
buildings, the grounds, and parking lots,” and the platform is part of the grounds.
OHIO FIRST DISTRICT COURT OF APPEALS
Bradford argued that he was prohibited from Spell’s workplace at MOF, but not the
streetcar platforms. The jury found Bradford guilty of violating the protection order
in violation of R.C. 2919.27.
[SEGMENT 11]
{¶16} Bradford appealed, and in two assignments of error, Bradford argues
that the trial court erred by permitting other-acts testimony that was irrelevant and
prejudicial, and his conviction was not supported by sufficient evidence and was
contrary to the manifest weight of the evidence.
Admissibility of Other-Acts Evidence
{¶17} The admissibility of other-acts evidence is a question of law that we
review de novo. [CITATION], ¶ 22.
{¶18} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Similarly, R.C. 2945.59 provides that:
In any criminal case in which the defendant’s motive or intent, the
absence of mistake or accident on his part, or the defendant’s scheme,
plan, or system in doing an act is material, any acts of the defendant
which tend to show his motive or intent, the absence of mistake or
accident on his part, or the defendant’s scheme, plan, or system in doing
the act in question may be proved, whether they are contemporaneous
with or prior or subsequent thereto, notwithstanding that such proof
may show or tend to show the commission of another crime by the
OHIO FIRST DISTRICT COURT OF APPEALS
defendant.
{¶19} Other-acts evidence may not be used to establish a defendant’s
propensity to commit crime or to demonstrate that an accused committed the crime
in question because of her or his proclivity to commit crime in general. [CITATION] at ¶
21. To be admissible, the other-acts evidence must be “probative of a separate,
nonpropensity-based issue” and “must go to a ‘material’ issue that is actually in
dispute between the parties.” Id. at ¶ 22, 27. Thus, this court must analyze whether
the other-acts evidence was (1) “relevant to the particular purpose for which it [was]
offered” and (2) relevant “to a material issue that is actually in dispute between the
parties.” Id. at ¶ 26-27.
{¶20} In this case, the state sought to introduce the facts of the underlying
crime that resulted in the issuance of the protection order. The sole purpose was to
provide the jury with context as to the issuance of the protection order. Bradford
argued that the facts of the underlying conviction were irrelevant because Bradford
was not challenging the validity or service of the protection order, and the underlying
facts were extremely prejudicial.
{¶21} The trial court concluded that the testimony was not other-acts
evidence, was admissible to provide context to the jury about the issuance of the
protection order, and that the probative value outweighed any prejudice.
{¶22} “Context” is not a permissible purpose under Evid.R. 404(B). Other-
acts evidence is admissible when the other acts demonstrate the “setting” of a case and
are part of the “immediate background” of the charged offenses. [CITATION]
OHIO FIRST DISTRICT COURT OF APPEALS
N.E.3d 1043, ¶ 19 (1st Dist.). “However, this theory is limited to those events that are
‘contemporaneous’ with the charged conduct and necessary to add ‘meaning and
context’ to other, relevant testimony.” In re J.P., [CITATION], ¶ 53. Here, the offense that prompted the protection
order occurred in 2022, and was not contemporaneous with the protection-order
violation. See id. Moreover, the validity of the protection order was not a material
issue in the case because Bradford stipulated to the validity and service of the
protection order. Therefore, the trial court erred in admitting the testimony. See id.
at ¶ 55.
{¶23} On appeal, the city further argues that the testimony was admissible to
explain the victim’s state of mind and lack of mistake. Those arguments were not
raised in the trial court and are waived. Moreover, the arguments are without merit
because the victim’s state of mind was not an issue in this case. Spell never saw
Bradford on the platform and was unaware of his presence until after the alleged
violation. Admission for lack of mistake focuses on the defendant’s conduct and
whether the prior acts show that the defendant acted purposefully, rather than
accidentally or mistakenly, in committing the current offense. See [CITATION]. The facts of the initial conviction
were not relevant to Bradford’s violation of the protection order. The sole issue in the
case was the scope of the protection order.
{¶24} Having determined that these statements were improperly admitted, we
must determine what effect, if any, their admission had on the outcome. Because
Bradford objected to these statements, we review for harmless error. [CITATION]. Under this standard, the
OHIO FIRST DISTRICT COURT OF APPEALS
admission of other-acts evidence is harmless when there is no reasonable possibility
that the evidence contributed to the conviction. [CITATION]
{¶25} In [CITATION], the court reversed Fuchs’s conviction for violating a
protection order due to the ineffectiveness of trial counsel. [CITATION] (“State’s Exhibit 4 included unfairly
prejudicial evidence of other acts, and we find that Fuchs’s trial counsel rendered
ineffective representation by failing to object to the admission of the exhibit without
redactions. We find further that the jury’s receipt of the exhibit gives rise to a
reasonable possibility that the outcome of Fuchs’s trial would have been different had
the exhibit not been introduced into evidence, or had it been entered into evidence
only in a redacted form.”). Counsel had stipulated that Fuchs was subject to the
protection order and was properly served. [CITATION] Counsel failed to object to the
admission of state’s Exhibit 4, which was a copy of the protection order and the
magistrate’s decision which included the facts of the underlying offense that prompted
the issuance of the order. [CITATION] The court found:
a reasonable probability that the outcome of Fuchs’s trial would have
been different had State’s Exhibit 4 not been admitted into evidence.
The protection order itself stated that Fuchs had been engaged in a
“pattern of [threatening] conduct,” and the magistrate’s findings of fact
presented the jury with potentially inflammatory descriptions of
Fuchs’s past behavior. Irrespective of the exhibit’s relevance, “evidence
is not admissible if its probative value is substantially outweighed by the
danger of unfair prejudice,” and it “may be excluded if its probative
OHIO FIRST DISTRICT COURT OF APPEALS
value is substantially outweighed” by its redundancy. See Evid.R.
(A)-(B). Here, the magistrate’s findings of fact posed a significant
risk of causing Fuchs unfair prejudice, but even otherwise, the
admission of the exhibit was needlessly cumulative because Fuchs had
stipulated to the validity of the protection order and to his previous
conviction.
[CITATION] at ¶ 17.
{¶26} However, the evidence against Fuchs was contested. One state witness,
who lived next to the protected person, testified that she saw Fuchs driving his truck
in the neighborhood. [CITATION] at ¶ 15. Two other neighbors saw a truck similar to Fuchs’s
truck but did not see the driver. [CITATION]. One of Fuchs’s witnesses testified that Fuchs and
he had been kayaking when the alleged violation occurred, and Fuchs’s mother
testified that his truck was inoperable that day. [CITATION] at ¶ 15.
{¶27} Here, the evidence established that Bradford was on a streetcar
platform. Faulks, who knew Bradford, testified that she saw him standing on the
platform. Bradford argued that the protection order prohibited him from her office
where the initial offense occurred, but did not specify that he was prohibited from the
streetcar platforms. Additionally, the trial court gave a limiting instruction to the jury
when the testimony was elicited informing the jurors that the testimony is “being
admitted to provide context as to the issuance of the civil protection order. It is not
received and you may not consider that prior conduct for any other purpose.”
{¶28} Based on this record, the impact of any error in admitting the testimony
was minimal. Bradford’s substantial rights were not prejudiced because there is no
reasonable possibility that this evidence contributed to his conviction given the other
OHIO FIRST DISTRICT COURT OF APPEALS
evidence presented at trial.
{¶29} We overrule the first assignment of error.
Sufficiency and Manifest Weight
{¶30} Next, Bradford contends that his conviction was not supported by
sufficient evidence and was contrary to the manifest weight of the evidence.
{¶31} In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime had been proved beyond a reasonable doubt. [CITATION], paragraph two of the syllabus.
{¶32} As to the weight of the evidence, “an appellate court must review the
[SEGMENT 12]
entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created a manifest miscarriage of
justice.” [CITATION], ¶ 29, citing [CITATION]. We afford
substantial deference to credibility determinations because the factfinder sees and
hears the witnesses. See [CITATION] at ¶ 30.
{¶33} R.C. 2919.27(A)(1) provides that “[n]o person shall recklessly violate the
terms of * * * [a] protection order issued or consent agreement approved pursuant to
R.C. 2919.26 or 3113.31 of the Revised Code.” R.C. 2901.22(C) provides that “[a]
person acts recklessly when, with heedless indifference to the consequences, the
person disregards a substantial and unjustifiable risk that the person’s conduct is
likely to cause a certain result or is likely to be of a certain nature.”
OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} Here, Bradford was convicted for violating the following term of the
protection order: “1. RESPONDENT SHALL NOT ENTER the residence, school,
business, [or] place of employment * * * of the protected persons named in this Order,
including the buildings, grounds, and parking lots at those locations.”
{¶35} Bradford argues that the evidence was insufficient to establish that the
protection order prohibited him from the streetcar platform. Further, he argues that
the streetcar platforms are owned by the city of Cincinnati and thus are public spaces
which cannot be included in a protection order, that the streetcar operator is inside
the streetcar and shielded from a person on the platform by glass and the streetcar
itself, and at most the protection order encompassed the streetcar operations
headquarters and the streetcars themselves.
{¶36} The plain language of the order prohibits Bradford from entering her
place of employment, which includes the buildings, grounds, and parking lots at those
locations. Spell is employed as a streetcar operator, thus her place of employment
includes the streetcars, and the grounds, which encompasses the platforms. Faulks’s
testimony that she saw Bradford sitting on the platform at 12th and Vine Streets was
sufficient to prove that he violated the protection order.
{¶37} Bradford further argues that the evidence failed to demonstrate beyond
a reasonable doubt that he recklessly violated the civil protection order because he left
the platform before Spell arrived. However, the protection order prohibits Bradford
from entering Spell’s place of employment and does not require Spell to be present.
Viewing the evidence in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime proven beyond a reasonable
doubt. This is not an exceptional case in which the evidence weighs heavily against
OHIO FIRST DISTRICT COURT OF APPEALS
the conviction.
{¶38} Accordingly, we overrule the second assignment of error.
Conclusion
{¶39} Having overruled Bradford’s two assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
WINKLER, J., concurs.
BOCK, P.J., concurs separately.
BOCK, P.J., concurring separately.
{¶40} I agree with the majority that the trial court’s admission of the other-
acts evidence was harmless. I write separately, however, because I believe that this
evidence would have required a reversal had Bradford’s presence on the platform been
disputed.
{¶41} As noted by the majority, the state must establish that the error was
harmless beyond a reasonable doubt. [CITATION], ¶ 15; see Crim.R. 52(A). In reviewing for harmless error, we must “excise
the improper evidence from the record and then look to the remaining evidence.”
[CITATION] at ¶ 29. And a holding that an error was harmless is appropriate only in cases
where there was “either overwhelming evidence of guilt or some other indicia that the
error did not contribute to the conviction.” Id., quoting [CITATION], quoting [CITATION], fn. 5. Of course, an appellate court should be mindful that
we do not “sit as the supreme trier of fact,” and instead are tasked with assessing only
OHIO FIRST DISTRICT COURT OF APPEALS
“the impact of this erroneously admitted testimony on the jury.” [CITATION], quoting [CITATION]
at fn. 5.
{¶42} To convict Bradford of violating the protection order, the state had to
prove that Bradford recklessly entered Spell’s place of employment in violation of the
protection order. Thus, in addition to proving recklessness and that the platform was
part of Spell’s place of employment, the state had to prove identity—that the person
on the platform was Bradford.
{¶43} Having reviewed the evidence at trial, I do not believe that there was
overwhelming evidence that Bradford was on the platform. The only evidence the state
offered to establish that element of the offense was Faulks’s testimony. And Faulks’s
testimony as to how she knew Bradford was vague. Faulks testified that she knew of
Bradford because when she was a streetcar operator, a person whose name she did not
know sat on a dangerous place on the platform. She did not know who that person was
at the time, did not testify that she had ever seen him herself, and did not learn who
he was until “the incident that happened to” Spell. Faulks did not specify which
incident or how she connected the person who had been sitting on the platform to
Bradford. Faulks spotted who she believed was Bradford while she was driving,
through the passenger-side window. According to Faulks, she turned on her hazard
lights and the person she identified as Bradford looked at the car and ran off.
{¶44} The other-acts evidence was prejudicial by its very nature. A person
throwing urine at another person is vile. In terms of proving identity, I do not believe
the state established beyond a reasonable doubt that Spell’s testimony about this
odious act was harmless. See [CITATION] at ¶ 32 (“blatant prejudice may override even a
strong case and require a new trial.”). While Faulks specifically described the clothing
OHIO FIRST DISTRICT COURT OF APPEALS
that the person on the platform wore, she only saw the person on the platform briefly.
Moreover, Faulks did not clearly state how she knew Bradford was the person that had
thrown urine on Spell or how she identified Bradford. The burden of satisfying the
harmless-error standard falls on the state, and the standard is “a standard significantly
more favorable to the defendant.” [CITATION], at ¶ 15, quoting [CITATION]. Had the issue of identity been properly before us, I would be unable to
conclude that the error in this case was harmless.
{¶45} On appeal, however, Bradford did not argue that the state failed to prove
that he was the person standing on the streetcar platform. Instead, Bradford argued
that the platform was not part of Spell’s place of employment and that the state failed
to prove that Bradford acted recklessly. Because I believe that the evidence definitively
established that the streetcar platform was part of Spell’s place of employment and
that Bradford acted recklessly, I do not believe that the result would have changed had
the trial court refused to admit the other-acts evidence.
{¶46} Accordingly, I concur separately in the majority’s opinion.
Please note:
The court has recorded its own entry this date.
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113250
v. :
BEN MARTIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 6, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-664130-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Paul and Kenan Mack, Assistant
Prosecuting Attorneys, for appellee.
Susan J. Moran, for appellant.
SEAN C. GALLAGHER, J.:
Ben Martin was convicted for the murder of Sean Wilkins, which
resulted in a life term of imprisonment with the possibility of parole after 21 years.
Upon our review of the arguments presented and in consideration of the entire record, we cannot conclude that his conviction is against the weight of the evidence.
For the following reasons, we affirm.
Martin and Wilkins were acquainted. Martin was in a relationship,
and had two children, with Wilkins’s cousin, who had four children in all. Wilkins
kept tools, a trailer, and scrap metal at his cousin’s house and regularly stopped by
early in the morning before he started work for the day.
A couple of weeks before the murder, Martin gave Wilkins $200 to
purchase THC-infused butter from a third party. Wilkins delivered a tub, which was
supposed to have contained the product. Martin apparently put the tub in his freezer
without checking its contents. A day before the murder, Martin opened the
[SEGMENT 13]
container and discovered it contained grease, not butter. Martin contacted Wilkins,
through text messaging, demanding his money back. After an extensive back and
forth, Martin threatened Wilkins, telling him they should settle their dispute
through a boxing duel. At one point, Wilkins agreed to take the container back and
give Martin half of the $200. Martin refused.
Wilkins spent the day before his death fixing a vehicle with his
brother. Around seven o’clock in the evening, the night before his murder, they
parted ways to go home. Wilkins’s girlfriend testified that he was at home the
evening before his murder and did not leave until the early morning when Wilkins’s
brother picked him up to begin their day of work.
Around five o’clock the next morning, Wilkins and his brother went
to the cousin’s home to pick up some tools he had left on the porch. Wilkins also intended to leave $200 to settle the disagreement with Martin. According to
Wilkins’s brother, he intended to leave the money in the side window of the house
after finding the front door locked. It was when Wilkins was standing by that
window that Martin shot Wilkins in the back from the roof of the house, which was
accessible through a bedroom window.
According to Martin, his testimony being the only evidence presented
in his defense, when he and Wilkins talked on the phone the day before, Wilkins said
he was going to kill Martin after Martin suggested that they resort to fighting to
resolve the dispute. Wilkins’s cousin supposedly told Martin to take that threat
seriously, but why that was so has never been explained. Later in the afternoon,
Martin drove around to try and find Wilkins in an effort to ease the tension. At one
point, Martin went to an area where an unrelated drive-by shooting occurred.
Martin’s friend was killed in that shooting. There is no evidence identifying the
shooter or the motive, but Martin believed that he was the intended target, claiming
to have been grazed by two or three bullets on his fingers and ankle. When officers
interviewed Martin immediately after Wilkins’s murder, Martin showed the officers
what they described as being minor scratches that did not appear to be bullet
wounds. Martin believed that Wilkins was involved in the shooting and was chasing
him the entire night in several vehicles, none of which appeared to be vehicles that
Wilkins owned.
Still according to Martin, after evading Wilkins’s pursuit all night, he
entered the cousin’s house through the side window, on the alley-side of the house, a half hour before the shooting; Wilkins’s cousin told officers that Martin arrived a
couple of hours before the shooting. The front door faced the main street, and the
side window faced the public alley. Martin claimed he did this because he was afraid
Wilkins would see him enter the front door. The window Martin used appears to be
the same window where Wilkins was shot.
Around six o’clock in the morning, Martin heard the dog barking,
drawing his attention to a car driving in or near the public alley that runs along the
side of the house. Martin believed that Wilkins was going to enter the home to harm
the cousin and her children and to try to kill him. He never explained why he
believed Wilkins would target his cousin or her children. According to Martin, there
was no trailer or any reason for Wilkins to be near the house on the day of the
murder, so to him the activity was suspicious. It was then Martin climbed on the
roof behind the house overlooking the public alley. It was still dark, but he saw a
figure he identified as Wilkins, standing by the window on the exterior wall abutting
the public alley. Martin fired several shots at Wilkins, hitting him in the back and
under the arm. Martin conceded that he did not see Wilkins with a weapon or take
any steps to actually enter the house.
Wilkins ran to his brother’s car, and his brother drove him to the
emergency room. He died during surgery.
At trial, Martin claimed he acted in self-defense of himself and others
in the home, arguing that Wilkins intended to kill him or harm his family after
breaking into the house. The trial court, following the bench trial, concluded that the state had disproven at least one of the elements of self-defense beyond a
reasonable doubt and found Martin guilty of murder and having a weapon while
under disability, with all other counts merging. The trial court also imposed two
three-year terms of imprisonment on two firearm specifications attendant to the
murder count and one of the merged offenses.1 This timely appeal followed.
In the sole assignment of error, Martin claims his conviction is against
the weight of the evidence because his testimony conclusively established that he
acted in self-defense.
When evaluating a claim that a jury verdict is against the weight of
the evidence, appellate courts “review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that we must reverse the conviction and order
a new trial.” [CITATION], ¶ 168, citing [CITATION], ¶ 17. Reversing a conviction
based upon the weight of the evidence should occur “‘only in the exceptional case in
which the evidence weighs heavily against the conviction.’” [CITATION] at 387,
quoting [CITATION].
1 Imposing sentences on two of the firearm specifications, one of which was
attendant to a merged offense, is required under the combined application of R.C.
2929.14(B)(1)(g) and [CITATION].
====== In order to disprove the claim of self-defense, the state must present
evidence “‘beyond a reasonable doubt that the defendant: (1) was at fault in creating
the situation giving rise to the affray; (2) did not have reasonable grounds to believe
or an honest belief that he or she was in imminent danger of bodily harm; or (3)
violated a duty to retreat or avoid danger.’” [CITATION], quoting [CITATION]. Id. at ¶ 11. “The test for a bona fide belief of
imminent bodily harm is both objective and subjective: whether the defendant’s
belief is objectively reasonable and whether the defendant subjectively had an
honest belief of imminent bodily harm.” Id., quoting [CITATION].
The trial court, in rendering its verdict, relied on the state’s evidence
demonstrating that Martin did not have an objectively reasonable belief that he was
in imminent danger of bodily harm. According to the court, there was no evidence
that Wilkins was attempting to enter the home, or that he was even armed, and
Martin could have taken other actions besides shooting Wilkins from behind as he
stood in the public alley. See, e.g., [CITATION], ¶ 58 (video evidence demonstrated that the defendant shot the
victim as she was running away, and therefore, the jury did not lose its way in
concluding that the defendant’s action was unreasonable). Martin testified that he
did not know whether Wilkins had a weapon, but he just assumed he did because,
according to him, he believed that Wilkins was generally armed. Martin’s argument that the trier of fact lost its way in rejecting his
assertion of self-defense is solely focused on his evidence to the exclusion of the
state’s evidence. It is well settled that “‘a conviction is not against the manifest
weight of the evidence simply because the [trier of fact] rejected the defendant’s
version of the facts and believed the testimony presented by the state.’” [CITATION]; see also [CITATION]. We cannot conclude that the trier
of fact lost its way.
Initially, we agree that Martin’s evidence, his own testimony,
demonstrated an arguable basis to assert self-defense, which is why the trial court
considered the question of self-defense and the state’s applicable burden of proof.2
The state, however, presented evidence that Wilkins was not armed or brandishing
At oral argument, Martin referenced [CITATION], in support of his manifest-weight challenge. Palmer focused on the question
whether the appellate court erred in affirming the trial court’s decision to omit the self-
defense jury instruction at trial, a question not implicated by the procedural history of
this appeal. Id. at ¶ 1. Palmer has no bearing on appellate review of the weight of the
evidence in support of the self-defense claim. Id. at ¶ 22 (“[T]he trial court’s attitude was
unreasonable because the court looked at the persuasiveness of the evidence presented
rather than the adequacy of the evidence presented.”). Palmer thus clarified that the
question whether to give the jury instruction must be made solely in consideration of the
adequacy of the evidence presented and “not its persuasiveness,” which is the sole issue
in a manifest-weight challenge. See id. at ¶ 21. Palmer is not applicable to the sole
argument presented. a firearm at the time of the murder, was not actively attempting to enter his cousin’s
house, and had his back toward Martin when Martin began shooting from a
concealed position on the roof of the house. See, e.g., [CITATION] (defendant’s claim of self-defense
was not credible because the evidence showed the victim was shot in the back of the
head); see also [CITATION] (the
evidence demonstrating that the victims were shot in the back disproved the
defendant’s theory of self-defense). Although there are some inconsistencies in the
state’s evidence, none of the inconsistencies rise to such a level as to impact the
[SEGMENT 14]
overwhelming evidence of Martin’s guilt.
The only evidence supporting the imminent-danger component of the
self-defense claim, i.e., that Wilkins intended to kill Martin, came from Martin’s self-
serving testimony and statements to police officers. The trial court, sitting as the
factfinder, did not lose its way. Martin’s subjective belief that Wilkins intended to
do harm, a belief that was not supported with any other evidence, was not credible.
The evidence presented by the state demonstrated that Martin killed an unarmed
man who was standing in the public alley by shooting him in the back from a
concealed position. Although Wilkins may have been near the window, Martin did
not claim that he was attempting to break into the building at the time of the
shooting. In short, the trier of fact was free to reject Martin’s version of events and
he has not demonstrated that in resolving the credibility of the witnesses, the trier
of fact clearly lost its way in finding Martin guilty of murder.
====== Certainly, I will remove the citations as instructed. However, in this particular part of the court ruling provided, there are no explicit citation references to be replaced with either `[CITATION]` or `[CITATION]`.
Therefore, the original text remains unchanged:
Martin’s conviction for murder along with the two attendant firearm
specifications and the resulting life term of imprisonment with the possibility of
parole after 21 years is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR ```markdown
Lorem ipsum dolor sit amet, consectetur adipiscing elit. In the case of People v. Whitaker, </pre><span class="citation no-link">2024 IL App (1st) 232009</span><pre class="inline">, the court considered the interpretation of recent statutes. Similarly, in State v. Warth, </pre><span class="citation no-link">2021 IL 126802</span><pre class="inline">, commonly referenced as "state-v-warth", crucial evidence was examined. Another similar case, People v. Deleon, </pre><span class="citation no-link">2020 IL App (1st) 181681</span><pre class="inline">, was instrumental in this decision. The recent ruling in Smith v. Jones, 2019 IL 123456 also provided precedents.
```
[CITATION]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29919
:
v. : Trial Court Case No. 2021 CR 02340
:
ALEXIS CARTER : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
...........
OPINION
Rendered on May 17, 2024
...........
JOHNNA M. SHIA, Attorney for Appellant
MATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee
.............
TUCKER, J.
{¶ 1} Alexis Carter appeals from her conviction on two counts of felonious assault
and accompanying firearm specifications.
{¶ 2} Carter contends the trial court erred in its jury instructions on self-defense
and defense of another. She also claims the jury’s rejection of self-defense and defense
of another was against the weight of the evidence. -2-
{¶ 3} We conclude that the trial court accurately instructed the jury and that the
evidence supported a finding that Carter did not act in self-defense or defense of another
when she shot two victims. Accordingly, the trial court’s judgment will be affirmed.
I. Background
{¶ 4} A grand jury indicted Carter on two counts of felonious assault (“serious
physical harm” and “deadly weapon”) for each of two victims. All counts included firearm
specifications. The charges stemmed from a shooting in the parking lot of Sporty’s Tap
Room and Grill in Harrison Township shortly after midnight on July 10, 2021.
{¶ 5} The case proceeded to a jury trial in July 2023. The only real issue was
whether Carter had shot the two victims, Jasmine Patterson and Jasmine Woodard, in
self-defense. Prior to the shooting, the victims had been eating, drinking, and dancing at
Sporty’s with Lesonya Williams and Lea Tyler. Shortly before midnight, Carter arrived at
the bar with her friend Tenisha Maston. Carter and Patterson previously had been
involved in a relationship, but they no longer were.
{¶ 6} Around midnight, the two victims and their friends decided to leave the bar
about the same time that Carter and Maston decided to leave. While exiting the bar,
Carter allegedly pushed Tyler into a door. Carter and Maston proceeded to their vehicle
which was parked next to Patterson’s car. The victims’ group followed Carter and Maston
outside. The events that followed, which led up to and included the shooting, were
disputed at trial.
{¶ 7} The State presented evidence that Carter began cursing, ran up to Williams,
and started “swinging.” For her part, Carter testified that Williams approached her and -3-
spit on her before “mutual combat” ensued. The fight evolved into a melee involving
everyone but Tyler, who did not participate. There was testimony that the fight subsided
before reigniting. In any event, security personnel ultimately used mace to break up the
altercation. Carter testified that she lost her glasses during the fight and could not see
anything after being sprayed with mace. At that point, the fight appeared to have stopped,
at least temporarily, and security left.
{¶ 8} Carter then entered the passenger’s side of Maston’s vehicle. The parties
presented divergent testimony about whether Carter stopped fighting and entered the car
of her own accord or whether Maston effectively forced her into the car. Woodard
continued “yelling and screaming” and approached Maston’s vehicle. Woodard admitted
yelling, “I want to see blood.” She also opened the driver’s side door of Maston’s vehicle
and threw “gravel” or “rocks” inside. Woodard described the “gravel” as “little bitty broken
up pellets.” Eyewitness Mary Hall, who was called by the defense and who contacted
defense counsel shortly before trial, testified that she saw “gravel,” which she described
as “rocks,” being thrown. On redirect examination by defense counsel, she characterized
the rocks as being about the size of a hand. A detective testified that he later observed
“some rocks in there, some gravel.” For her part, Carter testified that she felt a rock hit
her head. Although no car windows were broken, she also stated that she felt shattering
glass hit her head.
{¶ 9} While testifying in her own defense, Carter stated that under the foregoing
circumstances she feared for her life and did not know whether she would make it home
that night. Carter testified that she and Maston were prevented from leaving. Carter stated -4-
that she was being hit with rocks and Maston was being “attacked.” After being hit in the
head with a rock, she became “fed up.” Although still unable to see due to the mace and
the loss of her glasses, she felt around inside Maston’s car and retrieved a loaded
handgun. She stepped out of the car and fired three shots. Carter claimed that she
intended to shoot in the air, but one bullet struck Patterson in the buttocks and one struck
Woodard in the chest. At the time of the shooting, both victims were on the other side of
the car from Carter. Despite the fact that two of her three shots struck Patterson and
Woodard, Carter insisted on cross-examination that she could not see and that her intent
was not to hit anyone.
{¶ 10} In contrast to Carter’s version of events, Williams testified that all fighting
had ceased when Carter fired the handgun. According to Williams, Patterson was bent
over picking up glasses in the parking lot when Carter shot her in the buttocks. Williams
stated that no one was around Carter, who was “by herself.”
{¶ 11} Woodard testified that after throwing gravel in Maston’s car she shut the car
door and helped Patterson pick up a cell phone and keys in the parking lot. She and
Patterson were facing each other and talking as they prepared to walk toward their own
vehicle. At that point, she watched Carter exit Maston’s car, reach over the passenger-
side door, and fire the handgun.
{¶ 12} Patterson similarly testified that she was picking up items in the parking lot,
including a purse, keys, and glasses, when she looked back and saw Carter on the other
side of the car holding a handgun. Patterson testified that she heard Carter say, “man,
[SEGMENT 15]
f**k this,” before firing the weapon three times. Patterson stated that no one was throwing -5-
anything when she and Woodard were shot.
{¶ 13} Tyler also testified that Patterson and Woodard were doing nothing other
than picking up items and proceeding to their own car when Carter shot them. Tyler
watched as Carter “started firing” from the passenger’s side of Maston’s car.
{¶ 14} Finally, eyewitness Hall testified that she did not see where the two victims
were when Carter shot them. She also did not see where Carter was when she fired the
handgun.
{¶ 15} Following the presentation of evidence, the trial court provided the jury with
relatively lengthy instructions on the law of self-defense. Defense counsel objected to the
extent that they deviated in part from standard form Ohio Jury Instruction (OJI) self-
defense instructions. The trial court overruled the objection.
{¶ 16} The jury found Carter guilty on two counts of felonious assault (“serious
physical harm” and “deadly weapon”) with firearm specifications as to each victim.
Following merger of allied offenses, the trial court sentenced Carter on two counts of
felonious assault and two firearm specifications. It imposed concurrent prison terms of
two to three years for the felonious-assault convictions. It imposed three-year prison
terms on each firearm specification and ordered those terms to be served consecutively
to each other and consecutively to the concurrent felonious-assault sentences. The result
was an aggregate prison term of eight to nine years. Carter appealed, advancing two
assignments of error.
II. Analysis
{¶ 17} The first assignment of error states: -6-
The Trial Court abused its discretion when it instructed the jury on
self-defense and defense of another.
{¶ 18} Although the trial court instructed the jury on self-defense and properly
placed the burden on the State to disprove the claim beyond a reasonable doubt, Carter
contends the trial court instructions were “confusing, inconsistent, and improper.”
{¶ 19} Carter first challenges an instruction identifying five alternative ways the
State could disprove self-defense. The instruction stated:
* * * A person is allowed to use deadly force in self-defense. The
State must prove beyond a reasonable doubt that the Defendant, when
using deadly force, did not act in self-defense. To prove that the Defendant’s
use of deadly force was not in self-defense, the State must prove beyond a
reasonable doubt at least one of the following: the Defendant was at fault in
creating a situation giving rise to the shooting; or the Defendant did not have
reasonable grounds to believe that she was in imminent or immediate
danger of death or great bodily harm; or the Defendant did not have a
honest belief, even if mistaken, that she was in imminent danger of death
or great bodily harm; or the Defendant violated a duty to retreat to avoid the
danger; or the Defendant used unreasonable force.
Trial Transcript Vol. II at 427.
{¶ 20} In challenging the foregoing instruction, Carter contends the duty to retreat
has been removed from the elements of self-defense. Therefore, she claims a violation
of that duty should not have been identified as a way to disprove self-defense. Carter -7-
concedes that a jury still may consider the potential for “withdrawal” when a defendant is
the initial aggressor. She maintains, however, that withdrawal by an initial aggressor
involves a different issue than a more general duty to retreat to avoid danger. That being
so, Carter argues that the duty to retreat should not have been mentioned and that
withdrawal should have been addressed in the context of her potentially being an at-fault
initial aggressor.
{¶ 21} Upon review, we find Carter’s argument to be unpersuasive. After
instructing the jury that violation of a duty to retreat was one way to disprove self-defense,
the trial court gave the following additional instruction: “The Defendant had no duty to
retreat before using force in self-defense if the Defendant was in a place in which she
lawfully had the right to be.” [CITATION]. The trial court also instructed the jury: “In
determining whether the Defendant, in using force in self-defense, reasonably believed
that the force was necessary to prevent injury, loss, or risk of life or safety, you may not
consider the possibility of retreat by the Defendant.” [CITATION]. These instructions accurately
stated the law. See R.C. 2901.09(B) and (C).
{¶ 22} Having reviewed the entirety of the trial court’s instructions, which the jury
was presumed to have followed, we have no reason to believe that the jury rejected self-
defense based on a finding that Carter violated a duty to retreat. Notably, the State did
not present evidence or argument suggesting that self-defense was inapplicable because
Carter violated a duty to retreat. The State did not claim Carter lacked a right to be in the
parking lot. Therefore, the trial court’s provision of accurate instructions on the issue,
while perhaps unnecessary given the dearth of evidence that Carter was in the parking -8-
lot unlawfully, was unlikely to have misled or confused the jury. [CITATION]
{¶ 23} With regard to Carter’s argument that the trial court should have instructed
the jury about “withdrawal” in the context of an at-fault, initial-aggressor defendant, that
is precisely what the trial court did. It instructed the jury as follows:
Defendant did not act in self-defense if the State proved beyond a
reasonable doubt that the Defendant was at fault in creating the situation
that resulted in the injury.
The Defendant was at fault if the Defendant was the initial aggressor
and one of the following apply: * * * Defendant did not withdraw from the
situation; [or] the Defendant withdrew from the situation, but did not inform
Jasmine Patterson and/or Jasmine Woodard or reasonably indicate by
words or acts to Jasmine Patterson or Jasmine Wood of her withdrawal.
Id. at 428.
{¶ 24} We see nothing objectionable about the foregoing instruction, which again
was a correct statement of the law. See [CITATION] (“But R.C. 2901.09(C) is not an absolute prohibition on introducing
evidence involving the possibility of retreat. Rather, the statute only prohibits fact finders
from considering evidence involving the possibility of retreat to determine whether the
defendant’s belief that force was necessary was reasonable. Fact finders may, however,
consider retreat evidence to determine who was at fault in creating the situation leading
to the affray.”); [CITATION] -9-
(“While a person no longer has a duty to retreat from a place he or she is lawfully permitted
to be, there is no language in the amended statute to suggest a trier of fact is precluded
from considering whether the defendant was the initial aggressor or whether the
defendant attempted to withdraw from the situation when determining whether the
defendant was at fault in creating the situation giving rise to the affray. The narrow
language of the amended statute does not place on triers of fact express restrictions on
consideration of fault.”); [CITATION] at ¶ 49 (“[A]s a general matter, if a person provokes or
voluntarily enters a fight, that person can revive his or her right to self-defense by
withdrawing from that altercation. It follows that a person generally cannot claim self-
defense if that person provoked or voluntarily entered a fight and did not withdraw from
the altercation.”).
{¶ 25} Carter next challenges an instruction stating: “The Defendant did not act in
self-defense if the State proved beyond a reasonable doubt that the Defendant used more
force than reasonably necessary and the force used was greatly disproportionate to the
apparent danger.” Trial Transcript Vol. II at 429-430. Carter contends this instruction
should not have been presented as a “separate option” to defeat self-defense but rather
“as a consideration as to the second element of self-defense.”
{¶ 26} We are unsure precisely what Carter means, and the cases she cites do not
support the proposition that the trial court erred in giving an instruction regarding the use
of more force than reasonably necessary and force that was greatly disproportionate to
the danger. Carter appears to suggest that the trial court should have broken self-defense
down into only two elements rather than five or even more in the present case. In [CITATION] -10-
v. Nicholson, [CITATION], however, the Ohio
Supreme Court recently approved self-defense instructions quite similar to those given in
Carter’s case. In Nicholson, the trial court’s instructions identified four elements of self-
defense. Id. at ¶ 170. One of the four elements combined the need for the defendant to
have an objectively reasonable belief and a true subjective belief that he was in immediate
danger of death or great bodily harm. The trial court gave the same instructions in Carter’s
case except that it identified five elements of self-defense by instructing on the objectively
reasonable and subjective beliefs separately. In Nicholson, the Ohio Supreme Court
found nothing improper about the trial court dividing self-defense into four elements in its
instructions and requiring the prosecution to disprove only one of them. Id. at ¶ 171. We
reach the same conclusion in Carter’s case, which involved substantially-similar
instructions.
{¶ 27} As in the present case, the trial court in Nicholson also separately instructed
the jury: “If the defendant used more force than reasonably necessary and if the force
[SEGMENT 16]
used is greatly disproportionate to the apparent danger, then the defense of self-defense
is not available.” Id. at ¶ 170. We see nothing improper about the trial court giving a
substantially-similar instruction in Carter’s case. Once again, this instruction was a correct
statement of the law. [CITATION]. It also was pertinent
to the evidence presented.
{¶ 28} In her reply brief, Carter acknowledges that existing standard OJI
instructions may not be “a correct statement of law” due to recent stand-your-ground -11-
legislation and case law concerning a defendant’s use of excessive or disproportionate
force. She also recognizes that “case law supports the independent instructions” given by
the trial court. She reasons, however, that when the trial court’s instructions are “taken
together” they become confusing and unclear. Having thoroughly examined the trial
court’s instructions on self-defense, we reject Carter’s assertion that they were “confusing
at best, if not improper,” and that they deprived her of a fair trial.
{¶ 29} With regard to defense of another (her friend Maston), Carter simply
references the self-defense arguments we rejected above and states: “Likewise, and for
the same reasons, the trial court abused its discretion when it gave the jury instructions
on the same five options that the State had to disprove Carter’s defense of another claim.”
For the same reasons that the trial court did not err in instructing the jury on self-defense,
we conclude that it did not err in providing substantially-similar instructions regarding
defense of another. Accordingly, the first assignment of error is overruled.
{¶ 30} The second assignment of error states:
The Manifest Weight of the Evidence Supported Carter’s Self-Defense
and Defense of Another Claims.
{¶ 31} Carter contends her convictions were against the manifest weight of the
evidence. She argues that the evidence supported a finding that she acted in self-defense
and in defense of Maston. In particular, Carter asserts that she had no duty to retreat,
that she was not at fault, and that she possessed an objectively reasonable and subjective
fear of death or great bodily harm when she shot the victims. Carter contends she was
being verbally threatened with violence, struck with large rocks, and prevented from -12-
leaving when she fired the handgun. Under these circumstances, she asserts that a
finding of no self-defense was against the weight of the evidence.
{¶ 32} When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider witness credibility, and determine whether, in
resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” [CITATION]. A judgment should be reversed as being against the manifest weight of the evidence “only
in the exceptional case in which the evidence weighs heavily against the conviction.”
[CITATION].
{¶ 33} “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find
that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder’s determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” [CITATION]. “The fact
that the evidence is subject to different interpretations does not render the conviction
against the manifest weight of the evidence.” [CITATION].
{¶ 34} With the foregoing standards in mind, we reject Carter’s manifest-weight -13-
challenge predicated on self-defense and defense of another. At a minimum, the jury
reasonably could have concluded that she lacked an objectively reasonable belief that
she or Maston was in imminent danger of death or great bodily harm when she shot the
victims. Carter claimed that she was trapped, helpless, terrified, and blind when she fired
the handgun in response to being verbally threatened and assaulted with large rocks.
{¶ 35} In contrast to Carter’s version of events, the State’s witnesses testified that
all fighting had ceased when Carter fired the handgun. According to Williams, Patterson
was bent over picking up glasses when Carter shot her in the buttocks. Williams testified
that Carter was “by herself.” Woodard similarly testified that she had shut Maston’s car
door after throwing gravel inside the car and that she was helping Patterson pick up
objects. Patterson testified that no one was throwing anything when Carter fired the
handgun. Patterson also heard Carter say, “man, f**k this”, before firing the weapon. Tyler
testified that Patterson and Woodard were doing nothing other than picking up items and
proceeding to their own car when Carter shot them. A video introduced into evidence
depicted Carter pacing back and forth with no one in her immediate vicinity just before
the shooting. After entering the car, she exited again with a firearm, placed herself
between the door and the car’s frame, and fired three shots.
{¶ 36} We note too that the jury certainly could have found aspects of Carter’s
testimony to be not credible. Although she claimed to have feared for her life, she testified
that she was “fed up” when she shot the victims. This testimony suggests anger or
retaliation more than fear. Despite purportedly having been blinded by mace, Carter also
claimed to have felt a loaded weapon with a chambered bullet in Maston’s car. She then -14-
managed to hit the victims with two of the three shots she fired, despite claiming that did
not intend to hit them at all.
{¶ 37} Although the parties disputed what had occurred in the bar and during the
protracted fight in the parking lot, the jury reasonably could have concluded based on the
video evidence and the testimony of the State’s witnesses that Carter and Maston were
not in imminent danger of death or great bodily harm when Carter shot the victims.
Consequently, the jury’s finding of no self-defense and no defense-of-another was
supported by the manifest weight of the evidence.
III. Conclusion
{¶ 38} The judgment of the Montgomery County Common Pleas Court is affirmed.
.............
EPLEY, P.J. and LEWIS, J., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-23-12
PLAINTIFF-APPELLEE,
v.
ROSSTIN GUY BENDER, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2022-CR-0106
Judgment Affirmed
Date of Decision: May 6, 2024
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips for Appellee Case No. 14-23-12
ZIMMERMAN, J.
{¶1} Defendant-appellant, Rosstin G. Bender (“Bender”), appeals the March
22, 2023 judgment entry of sentence of the Union County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} This case stems from an April 29, 2022 altercation between Bender and
the victim, B.H., during which Bender stabbed B.H. with a knife nine times. On
April 29, 2022, B.H., along with his girlfriend, Faith Selover (“Faith”) and her
brother, Joel Selover (“Joel”), invited Dean Smith (“Smith”), Bender, and Star
Mentzer (“Mentzer”), Bender’s girlfriend, to the residence that the three shared to
“see and enjoy for a campfire” the landscape lighting that they installed in their
backyard. (Feb. 6, 2023 Tr., Vol. II, at 33). During the gathering, “the lights kept
getting kicked over and kicked down, stepped on[, so B.H.] asked several times to
please watch the lights.” (Id. at 37). According to B.H., when he and Bender were
“bickering back and forth about the lights,” Bender discharged a firearm into the
ground. (Id. at 38). Joel testified that he believed that Bender “discharged the gun
into the ground * * * to diffuse the situation.” (Id. at 83).
{¶3} Later, when B.H. returned outside “after using the bathroom[, he saw]
that the lights were kicked over again.” (Id. at 40). Because Mentzer giggled after
B.H. inquired about “who kicked over the lights,” B.H. asked Bender and Mentzer
to “leave” “if they think it’s funny * * * .” (Id.). Instead of leaving, Bender “asked
Case No. 14-23-12
if [B.H.] wanted to fight him” and B.H. agreed. (Id.). According to B.H., Bender
then traversed 15-to-20 feet to reach him. However, before Bender could get to
B.H., Faith “tried to come in the middle between [them] to put her arms out and
separate the distance.” (Id. at 47). Nevertheless, Bender “swung past her” and “hit
[SEGMENT 17]
[B.H.] first.” (Id. at 48). “[T]he last thing [B.H. could] remember is holding Mr.
Bender on top of [him] and [Faith] pulling Bender off of [him] and [Joel] pulling
[B.H.] back off the ground.” (Id. at 49). B.H. did not know that he had been stabbed
until he tried to stand.
{¶4} On May 6, 2022, the Union County Grand Jury indicted Bender on
Counts One and Two of felonious assault in violation of R.C. 2903.11(A)(1),
(D)(1)(a), second-degree felonies, and Count Three of using weapons while
intoxicated in violation of R.C. 2923.15(A), (B), a first-degree misdemeanor. On
May 10, 2022, Bender appeared for arraignment and pleaded not guilty to the counts
alleged in the indictment.
{¶5} On October 4, 2022, Bender filed a notice of self-defense under Crim.R.
12.2 stating that he intended
to present evidence that on April 22, 2022 [sic], the alleged victim *
* * punched [Bender] in the face without justification and used his
forearm to compress [Bender’s] throat while on the ground to the
point he could not breathe; and that [Bender] had reasonable grounds
to believe, and honestly believed, he was imminent or immediate
danger of death or great bodily harm, at the time he defended himself
with a knife.
Case No. 14-23-12
(Doc. No. 44). On October 7, 2022, the State filed a memorandum in opposition to
Bender’s notice of self-defense. That same day, the State filed a motion in limine
requesting that the trial court prevent Bender “from introducing specific instance
[sic] of conduct by the victim in this matter unless and until [Bender] establishes
those instances of conduct are relevant and otherwise admissible to his claim of self-
defense.” (Doc. No. 48).
{¶6} On January 31, 2023, the State filed another motion in limine requesting
that the trial court prevent Bender “from introducing specific instances of conduct
to prove the victim was the initial aggressor in support of his claim of self-defense.”
(Doc. No. 78). On February 6, 2023, Bender filed a memorandum in opposition to
the State’s motion in limine. That same day, Bender requested that the trial court
instruct the jury on self-defense and the inferior-degree offense of aggravated
assault.
{¶7} The case proceeded to a jury trial on February 6-8, 2023. On February
8, 2023, the jury found Bender guilty of the counts alleged in the indictment.
{¶8} On March 22, 2023, the trial court sentenced Bender to a minimum term
of five years in prison to a maximum term of seven and one-half years in prison on
Count One and 180 days in jail on Count Three. (Doc. No. 91). The trial court
ordered that Bender serve the terms concurrently. Further, the trial court merged
Counts One and Two for purposes of sentencing.
Case No. 14-23-12
{¶9} Bender filed his notice of appeal on April 20, 2023. He raises seven
assignments of error for our review. For ease of our discussion, we will begin by
discussing Bender’s first and sixth assignments of error together; followed by his
second assignment of error; then together his third, fourth, and fifth assignments of
error; and finally his seventh assignment of error.
First Assignment of Error
The Jury Lost Its Way When Reviewing The Evidence Presented
For Guilt Contrasted With The Evidence Of Self-Defense,
Resulting In A Verdict That Is Against The Manifest Weight Of
The Evidence.
Sixth Assignment of Error
The Trial Court Erred When It Overruled Appellant’s Motion
For A Criminal Rule 29 Acquital [sic].
{¶10} In his first and sixth assignments of error, Bender argues that his
felonious-assault convictions are based on insufficient evidence and are against the
manifest weight of the evidence. On appeal, Bender does not dispute that the State
proved the elements of felonious assault. Rather, Bender contends that his
felonious-assault convictions are based on insufficient evidence and are against the
manifest weight of the evidence because he “presented evidence by a preponderance
of the evidence that he acted in self-defense, and the State failed to prove beyond a
reasonable doubt that it was not self-defense * * * .” (Appellant’s Brief at 11).
Case No. 14-23-12
Standard of Review
{¶11} Under Crim.R. 29(A), a court “shall order the entry of the judgment
of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a
conviction of such offense or offenses.” Consequently, “[a] motion for acquittal
under Crim.R. 29(A) is governed by the same standard as the one for determining
whether a verdict is supported by sufficient evidence.” [CITATION], ¶ 37.
{¶12} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” [CITATION], paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, [CITATION]. Accordingly,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” [CITATION], ¶ 33.
See also [CITATION], ¶ 19
Case No. 14-23-12
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”).
{¶13} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” [CITATION] at 387,
quoting [CITATION], 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. [CITATION],
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” [CITATION],
quoting [CITATION], 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency of the Evidence
{¶14} As an initial matter, even though Bender challenges the sufficiency
and the weight of the evidence supporting the jury’s finding of guilt as to the
felonious-assault charge under Count Two of the indictment, we need not address
that argument. Accord [CITATION], 3d Dist. Hardin No. 6-18-07, 2019-Ohio-
Case No. 14-23-12
4123, ¶ 11. “Specifically, ‘[w]hen counts in an indictment are allied offenses, and
there is sufficient evidence to support the offense on which the state elects to have
the defendant sentenced, the appellate court need not consider the sufficiency [or
weight] of the evidence on the count that is subject to merger because any error
would be harmless’ beyond a reasonable doubt.” Id., quoting [CITATION].
{¶15} In this case, error, if any, with respect to the sufficiency or weight of
the evidence as to the jury’s finding of guilt as to Bender’s felonious-assault charge
under Count Two is harmless beyond a reasonable doubt because it was merged
with Count One. Accord id. at ¶ 12; [CITATION] at ¶ 13. In other words, Bender was not
convicted of the felonious-assault offense alleged under Count Two because the trial
court merged that offense for purposes of sentencing. Accord [CITATION] at ¶ 12.
Indeed, the Supreme Court of Ohio has explicitly stated that a “conviction” requires
both a finding of guilt and a sentence. [CITATION] at ¶ 16. For these reasons, we need
not address any arguments challenging the sufficiency or weight of the evidence
regarding the jury’s finding of guilt as to Bender’s felonious-assault charge under
[SEGMENT 18]
Count Two. Accord [CITATION] at ¶ 12; [CITATION] at ¶ 13, 18.
{¶16} Therefore, we will begin by addressing Bender’s sufficiency-of-the-
evidence argument as it relates to his felonious-assault conviction under Count One.
On appeal, Bender argues that the trial court erred by denying his Crim.R. 29 motion
because the State failed to prove beyond a reasonable doubt that he did not act in
Case No. 14-23-12
self-defense. Decisively, Bender’s challenge to the sufficiency of the evidence as
to self-defense is inappropriate. Accord [CITATION].
{¶17} Traditionally, “[s]elf-defense is an affirmative defense, and the
accused bears the burden of proving it by a preponderance of the evidence.” [CITATION]
at ¶ 11. “However, effective March 28, 2019, the General Assembly modified
Ohio’s self-defense statute, R.C. 2901.05, to place the burden on the state to prove
beyond a reasonable doubt that the accused did not act in self-defense.” [CITATION] Currently,
“[e]vidence as to all elements of self-defense must be presented at trial in order for
a defendant to be acquitted, but to overcome the claim, the state need only disprove
one element of the defense by proof beyond a reasonable doubt.” Id. at ¶ 31.
“Moreover, any presumption as to the use of force in self-defense ‘may be rebutted
by a preponderance of the evidence, provided that the prosecution’s burden of proof
remains proof beyond a reasonable doubt as described in’ R.C. 2901.05(B)(1).” Id.,
quoting R.C. 2901.05(B)(4).
{¶18} Nevertheless, “there is no due-process right to a presumption of an
affirmative defense such as self-defense.” [CITATION] at ¶ 19. Thus, notwithstanding “the shift in the burden of proof by the
amendment to R.C. 2901.05, the absence of self-defense is not an essential element
Case No. 14-23-12
of any offense that the state carried the burden of proving at trial.” [CITATION] at ¶ 36.
See also [CITATION], 10th Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶
43 (concluding that “there is nothing in the current version of R.C. 2901.05(B)(1)
indicating that by shifting the burden of proof on the affirmative defense of self-
defense, the General Assembly intended to transform the absence of self-defense
into an essential element of a criminal offense”). Consequently, “[Bender’s] claim
of self-defense is not an aspect of a sufficiency of the evidence or Crim.R. 29
analysis, and the trial court did not err [by denying his] Crim.R. 29 motion [in light
of his] self-defense claim.” [CITATION] at ¶ 36. Therefore, we will address Bender’s
self-defense argument only in our analysis of the manifest weight of the evidence.
Id.
Manifest Weight of the Evidence
{¶19} Bender was convicted of felonious assault in violation of R.C.
2903.11(A)(1). R.C. 2903.11 provides, in its relevant part, that “[n]o person shall
knowingly * * * [c]ause serious physical harm to another * * * .” R.C.
2903.11(A)(1). Bender does not dispute that the State proved the elements of that
offense. Rather, Bender argues that the jury lost its way in concluding that he did
not act in self-defense.
{¶20} Under Ohio’s current self-defense statute, “a defendant claiming self-
defense has the burden of production—that is, the burden of producing evidence
that ‘tends to support’ his use of force in defending himself.” [CITATION]
Case No. 14-23-12
[CITATION]. Thus, “if evidence is presented ‘that tends to
support’ that the defendant used the force in self-defense, the prosecution must
prove beyond a reasonable doubt that the accused did not act in self-defense.”
(Emphasis sic.) [CITATION],
¶ 43. “Accordingly, ‘the burden of proof for * * * self-defense has shifted to the
state,’ but ‘the burden of production for * * * self-defense[ ] remains with the
defendant.’” (Emphasis sic.) [CITATION],
¶ 104, quoting [CITATION], at ¶ 44.
{¶21} “Self-defense is an affirmative defense that, if proved, relieves a
defendant of criminal liability for the force that the defendant used.” [CITATION] at ¶
43. “The elements of self-defense differ depending on whether the defendant used
deadly or non-deadly force to defend himself.” [CITATION], at ¶ 15.
Deadly force is “any force that carries a substantial risk that it will proximately
result in the death of any person.” R.C. 2901.01(A)(2). A “substantial risk” is “a
strong possibility, as contrasted with a remote or significant possibility, that a
certain result may occur or that certain circumstances may exist.” R.C.
2901.01(A)(8). In most situations, “stabbing a victim (or victims) with a knife
constitutes the use of deadly force.” [CITATION],
¶ 15.
To establish self-defense through the use of deadly force, an accused
must prove: “(1) the accused was not at fault in creating the situation
giving rise to the affray; (2) the accused had a bona fide belief that he
Case No. 14-23-12
or she was in imminent danger of death or great bodily harm and that
the only means of escape from such danger was in the use of force;
and (3) the accused must not have violated any duty to retreat or to
avoid the danger.”
[CITATION] at ¶ 16, quoting [CITATION], ¶ 14. Generally, “a person is privileged only to ‘use as much force as is
reasonably necessary to repel [an] attack.’” [CITATION], quoting [CITATION], ¶ 61.
{¶22} “[T]he State must ‘disprove at least one of the elements of self-defense
beyond a reasonable doubt.’” [CITATION], ¶ 29, quoting [CITATION], ¶ 31. “‘The elements of self-defense are cumulative, and a
defendant’s claim of self-defense fails if any one of the elements is not present.’”
Id., quoting [CITATION], ¶ 15.
{¶23} On appeal, Bender contends that the evidence that he presented at trial
that he acted in self-defense is weightier than the evidence presented by the State
that he did not. In support of this argument, Bender points to the inconsistencies of
B.H.’s, Joel’s, and Faith’s testimonies. Specifically, Bender contends that “the
State’s evidence regarding the logistics of the fight is contrary to [findings of the
emergency room doctor who B.H.], creating doubt on the credibility of its witnesses
Case No. 14-23-12
in their entirety.” (Appellant’s Brief at 5). That is, Bender contends that “the
placement of [B.H.’s] wounds is consistent with [B.H.] being on top of Mr. Bender
and Mr. Bender doing whatever he could to get [B.H.] off of him because he was
being choked.” (Id. at 11). Consequently, Bender argues that the weight of the
evidence supports that he acted in self-defense. In other words, Bender contends
that his version of the incident is more credible than B.H.’s, Joel’s, and Faith’s
version.
{¶24} “Although we review credibility when considering the manifest
weight of the evidence, the credibility of witnesses is primarily a determination for
the trier of fact.” [CITATION], ¶ 13, citing [CITATION], at paragraph one of the syllabus. “The trier
of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]
and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’” Id., quoting [CITATION], ¶ 24, citing [CITATION].
{¶25} Notwithstanding Bender’s contention that B.H.’s, Joel’s, and Faith’s
testimonies conflict with the medical evidence, “we are mindful of the jury’s
‘superior first-hand perspective in judging the demeanor and credibility of
witnesses.’” [CITATION], ¶ 33,
quoting [CITATION], ¶ 125.
Case No. 14-23-12
Critically, it is well within the province of the trier-of-fact to determine the
credibility of B.H.’s, Joel’s, Faith’s, and Bender’s testimonies, including the
prerogative to find Bender’s version of events not to be truthful. Accord [CITATION]. Indeed, the trier of
fact was free to believe or disbelieve B.H.’s, Joel’s, and Faith’s testimonies (or
[SEGMENT 19]
Bender’s testimony) or accept part of what B.H., Joel, Faith, and Bender said and
reject the rest. Accord id.
{¶26} Even so, notwithstanding Bender’s contention that the weight of the
evidence suggests that he acted in self-defense because the medical evidence
supports his version of events, the balance of the State’s evidence weighs against
Bender’s self-defense claim. In other words, the weight of the evidence reflects that
Bender was at least partially at fault in creating the situation giving rise to the affray.
Indeed, the evidence reflects that Bender voluntarily entered into the fight with B.H.
by inviting B.H. to fight. The record further reflects that Bender exceeded the force
reasonably necessary for self-defense during the fight. See [CITATION] (concluding “that Martin voluntarily
entered the encounter by proceeding to the police station parking lot and that he
exceeded the force reasonably necessary for self-defense by using a deadly
weapon”).
{¶27} To begin with, Bender bore the initial burden of production under the
first element of a self-defense claim to demonstrate that he was not at fault for
Case No. 14-23-12
creating the violent situation. Accord [CITATION]. “[T]he first element of a self-defense claim provides
that the defendant must not be at fault in creating the situation that gave rise to the
affray.” [CITATION]. See also [CITATION] (“‘Ohio courts have long recognized that a person cannot provoke [an] assault or
voluntarily enter an encounter and then claim a right of self-defense.’”), quoting
[CITATION]. “This concept is broader than simply not being the immediate aggressor.”
[CITATION]. “A person may not provoke an assault or voluntarily enter an
encounter and then claim a right of self-defense.” Id. “Ohio courts have long
recognized that a defendant is at fault in creating the situation giving rise to the
affray when the defendant chooses to confront the victim or knowingly go to a place
where the victim will be, even when the defendant’s action was otherwise
completely lawful.” Id. at ¶ 15.
{¶28} In this case, the State presented the testimony of B.H. and Faith, who
testified that Bender was the initial aggressor and that he voluntarily entered into
the fight with B.H. by inviting B.H. to fight. Accord [CITATION] (specifying that “[b]oth of the
state’s witnesses contradicted appellant’s version, testifying Barnett and appellant
willingly met up in the middle of the street and [the appellant] began to throw
Case No. 14-23-12
punches”). See also [CITATION] at ¶ 15 (“Even if [the victim] grabbed appellant by the
neck and pushed her against the house and, under appellant’s version, appellant did
not throw the first punch, the trial court did not err in finding that appellant was at
fault in creating the situation.”).
{¶29} At trial, B.H. testified that, after he asked Bender and Mentzer to leave,
Bender responded by asking him if he “wanted to fight him.” (Feb. 6, 2023 Tr.,
Vol. II, at 40). B.H. further testified that, after he agreed to fight Bender, Bender
traversed 15-to-20 feet to reach him, then “swung past” Faith (who was trying to
intercede) and struck B.H. first. (Id. at 48). Faith likewise testified that, after B.H.
asked Bender and Mentzer to leave, Bender “asked [B.H.] if he wanted to fight.”
(Id. at 127). According to Faith, Bender “punched [B.H.] in the face,” then B.H.
“punched him back.” (Id. at 130).
{¶30} Moreover, even though Bender denied that he threw the first punch,
Bender’s own testimony suggests that he was at least partially at fault for creating
the situation giving rise to the affray. Accord [CITATION] at ¶ 85; [CITATION]
11th Dist. Trumbull Nos. 2002-T-0115 and 2002-T-0116, 2003-Ohio-6762, ¶ 30-31
(concluding that the defendant could not claim self-defense because “his testimony
demonstrated that he was at least partially at fault for creating the situation giving
rise to the affray”). That is, Bender testified that he voluntarily entered the
encounter with B.H. See [CITATION], 2d Dist. Greene No. 2019-CA-19,
2020-Ohio-3681, ¶ 40.
Case No. 14-23-12
{¶31} Nevertheless, the weight of the evidence presented at trial reflects that
Bender did not have a bona fide belief that he was imminent danger of death or great
bodily harm and that this only means of escape from such danger was the use of
force a required by the second element of a self-defense claim. Under the second
element of self-defense, “[t]he person’s belief must be objectively reasonable under
the circumstances and he must subjectively believe he needed to resort to force to
defend himself.” [CITATION], ¶
54. Specifically, “‘[t]he objective part of the test requires consideration of “whether,
considering all of the defendant’s particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack,” a
reasonable person would believe that danger was imminent.’” Id., quoting [CITATION], ¶ 30, quoting [CITATION], ¶ 23.
“The subjective part requires consideration of whether the defendant himself
actually believed that he was in imminent danger.” Id.
{¶32} Importantly, under the second element of a self-defense claim “a
defendant must show that ‘that the degree of force used was “warranted” under the
circumstances and “proportionate” to the perceived threat.’” Id. at ¶ 55, quoting
[CITATION], ¶ 31. “‘If * * * the amount of force used is so disproportionate that
it shows an “unreasonable purpose to injure,” the defense of self-defense is
unavailable.’” Id., quoting [CITATION], 2011-
Case No. 14-23-12
Ohio-87, ¶ 27, quoting [CITATION].
{¶33} In this case, the weight of the evidence presented at trial demonstrates
that Bender’s use of deadly force was not “reasonably necessary and proportionate
to the apparent danger.” [CITATION]. Critically, Bender “brought a knife to a fist fight and seriously
injured” B.H. [CITATION]. Specifically, the evidence reflects that Bender and B.H. “met with the intention
of engaging in a fist fight.” [CITATION] (resolving that “it was
within the province of the jury to credit the testimony of the state’s witnesses that
Barnett and appellant met with the intention of engaging in a fist fight”). Indeed,
there was no evidence presented that B.H. wielded a weapon during the altercation.
{¶34} Certainly, under the facts presented, it was within the province of the
jury to credit the testimonies offered by the State’s witnesses that Bender did not
have “reasonable grounds for believing there was an imminent threat of death or
serious bodily harm.” [CITATION]. Consequently, the evidence presented reflects
that Bender “used deadly force when he was not faced with deadly force” and that
“[t]he degree of force used by [Bender] was neither warranted under the
circumstances nor proportionate to the perceived threat.” [CITATION].
Case No. 14-23-12
{¶35} Therefore, based on our review of the record, we conclude that the
trier of fact did not lose its way by concluding that Bender did not act in self-defense.
“The jury heard all of the testimony, considered the evidence, and found the state’s
witnesses credible, and we will not disturb the jury’s verdict on appeal.” [CITATION]
Importantly, “[t]he jury did not lose its way simply because it believed the
prosecution testimony and disbelieved appellant’s account.” [CITATION] Accordingly,
weighing the evidence and all reasonable inferences, and considering the credibility
of witnesses, we conclude the jury did not clearly lose its way and create such a
manifest miscarriage of justice that Bender’s felonious-assault conviction must be
reversed and a new trial ordered. Thus, Bender’s felonious-assault conviction under
Count One is not against the manifest weight of the evidence.
{¶36} Bender’s first and sixth assignments of error are overruled.
Second Assignment of Error
The Trial Court Erred When It Failed To Grant A Mistrial First
After The Jury Was Tainted By Inaccurate Statements Made By
The Prosecutor Regarding Appellant’s Attempt To Invoke The
Fifth Amendment When He Was On The Stand And Second
When The Prosecutor Improperly Commented On Appellant’s
Pre-Arrest Silence.
{¶37} In his second assignment of error, Bender argues that the trial court
erred by failing to declare a mistrial based on prosecutorial misconduct.
Specifically, Bender argues that the prosecutor improperly “commented on * * *
Mr. Bender invoking his Fifth Amendment right not to incriminate himself, then
[SEGMENT 20]
Case No. 14-23-12
minutes later commenting on Mr. Bender’s pre-arrest silence.” (Appellant’s Brief
at 12).
Standard of Review
{¶38} “‘A mistrial should not be ordered in a cause simply because some
error has intervened. The error must prejudicially affect the merits of the case and
the substantial rights of one or both of the parties.’” [CITATION], ¶ 18, quoting
[CITATION]. “Notably, mistrials are appropriate
only when the ends of justice so require and a fair trial is no longer possible.” [CITATION], ¶ 61.
{¶39} “Because it rests within the sound discretion of the court, we review a
trial court’s grant or denial of a motion for a mistrial for an abuse of discretion.”
[CITATION], ¶ 44. An
abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. [CITATION].
Analysis
{¶40} In this case, Bender moved for a mistrial based on alleged improper
statements made by the prosecutor at trial. “When a defendant moves for a mistrial
based on prosecutorial misconduct, the trial court must determine whether ‘the
prosecutor’s actions were improper, and, if so, whether the defendant’s substantial
rights were actually prejudiced.’” [CITATION],
Case No. 14-23-12
2023-Ohio-2863, ¶ 24, quoting [CITATION]. Thus, “‘[w]hen the grounds for a mistrial are based on
prosecutorial misconduct, the defendant must show that the alleged misconduct
deprived him of a fair trial.’” [CITATION], ¶ 40, quoting [CITATION], 1998 WL 156865, *3 (Mar. 20, 1998). “‘The defendant must show that, but
for the prosecutor’s misconduct, the trier of fact would not have convicted him.’”
[CITATION] at ¶ 24, quoting [CITATION] at ¶ 33. “‘In making this determination, an appellate
court should consider several factors: (1) the nature of the remarks, (2) whether an
objection was made by counsel, (3) whether corrective instructions were given by
the court, and (4) the strength of the evidence against the defendant.’” [CITATION], ¶ 46, quoting [CITATION].
{¶41} Bender takes issue with the prosecutor’s statements regarding the
invocation of his Fifth Amendment right against self-incrimination and his pre-
arrest, pre-Miranda silence. “The Fifth Amendment to the Constitution of the
United States provides that no person ‘shall be compelled in any criminal case to be
a witness against himself.’” [CITATION], ¶ 8, quoting the Fifth Amendment to the U.S. Constitution. “This
Amendment is made applicable to the states through the due process clause of the
Fourteenth Amendment.” Id.
Case No. 14-23-12
{¶42} “‘The right to remain silent is conferred by the United States and the
Ohio Constitutions.”’ [CITATION] at ¶ 50, quoting [CITATION]. “‘The privilege against self-
incrimination “is fulfilled only when the person is guaranteed the right ‘to remain
silent unless he chooses to speak in the unfettered exercise of his own will.’”’” Id.,
quoting [CITATION] at ¶ 78, quoting [CITATION], quoting [CITATION], quoting [CITATION]. “This
rule enforces one of the underlying policies of the Fifth Amendment, which is to
avoid having the jury assume that a defendant’s silence equates with guilt.” [CITATION]
at ¶ 10.
{¶43} Here, Bender contends that the prosecutor improperly asserted that
Bender “was not entitled to assert [his Fifth Amendment] privilege, in front of the
jury, stating ‘[Bender] waived [his] Fifth Amendment right’ * * * .” (Appellant’s
Brief at 12-13, quoting Feb. 7, 2023 Tr., Vol. II, at 194). The State disputes
Bender’s argument and asserts that the prosecutor’s statements were not improper
because Bender’s refusal to answer was not justified.
{¶44} “‘There is no absolute right to invoke the Fifth Amendment.’” [CITATION], quoting [CITATION]. “The protections against self-incrimination ‘must be confined to instances where
the witness has reasonable cause to apprehend danger from a direct answer.’” [CITATION]
Case No. 14-23-12
v. Arnold, [CITATION], quoting Hoffman v. United States, [CITATION]. Consequently, “‘when a witness asserts a privilege against self-incrimination, a court may not rely upon the witness’s claim alone, but has a duty to determine whether the witness’s refusal to answer is justified.’” State v. Barton, [CITATION], quoting State v. Spangler, [CITATION].
{¶45} Based on our review of the record, we conclude that Bender’s refusal
to answer was not justified. Specifically, at trial, Bender testified on direct
examination regarding his witness’s—Dean Smith—testimony that Bender
“coached” his testimony:
[Bender]: My side of the things * * * is that, when we come to
consult with * * * our lawyer * * * that we all talk
separately and we generally had an idea of what
happened that night. I’ve made statements in the past
that I am claiming self-defense but I’ve never persuaded
anybody or told anybody or coached anybody on what
to say here today.
[Trial Counsel]: So [Smith] did that on his own?
[Bender]: Correct.
[Trial Counsel]: Part of an effort to help you?
[Bender]: I would assume so.
[Trial Counsel]: Misguided effort, would you say?
[Bender]: Most definitely.
Case No. 14-23-12
(Feb. 7, 2023 Tr., Vol. II, at 179-180). On cross-examination, Bender invoked his
Fifth Amendment privilege against self-incrimination:
[The Prosecutor]: If I understand your testimony correctly, your friend just
came in here and lied. Is that right?
[Bender]: It would appear so, yes.
[The Prosecutor]: He had lied when he said you told him what to say.
Right?
[Bender]: I plead the fifth on that question.
(Id. at 193-194). Following consultation with his trial counsel, Bender answered
the prosecutor’s question:
[The Prosecutor]: And so, you told him what to say?
[Bender]: I did not.
[The Prosecutor]: You did not, so he lied about that?
[Bender]: Correct.
[The Prosecutor]: [W]ell, why did you plead the fifth then?
[Bender]: I was confused on the question and did not know how
to answer.
(Id. at 194-195).
{¶46} Based on our review of Bender’s testimony, we conclude that Bender
did not present a basis to invoke his Fifth Amendment privilege against self-
incrimination. See [CITATION] at ¶ 24. “‘[W]hen a defendant chooses
to testify in a criminal case, the Fifth Amendment does not allow him to refuse to
Case No. 14-23-12
answer related questions on cross-examination.’” [CITATION]. Significantly, “‘[a] defendant “has no right to set forth to the jury all
the facts which tend in his favor without laying himself open to a cross-examination
upon those facts.”’” [CITATION]. Therefore, because Bender’s refusal was
not justified, the prosecutor’s cross-examination of Bender was not improper.
{¶47} Bender further argues that the prosecutor improperly cross-examined
him regarding his pre-arrest, pre-Miranda silence. Specifically, Bender contends
that the prosecutor improperly “commented on [his] pre-arrest silence to attack the
self-defense [claim] by inferring that if he had nothing to hide, why didn’t he go to
the police, or check in on his friend on a regular basis.” (Appellant’s Brief at 13).
Here, Bender suggests that he was deprived of a fair trial because the prosecutor’s
cross-examination of him regarding his pre-arrest, pre-Miranda silence constituted
substantive evidence of his guilt. The State refutes Bender’s argument and contends
that the prosecutor’s cross-examination of Bender had “probative value for
impeachment, since Bender’s claim of self-defense and claiming to be the victim of
an attack would usually result in a report of his lawful use of force to the police
when it happened.” (Appellee’s Brief at 19).
{¶48} Generally, the “[u]se of a defendant’s pre-arrest silence as substantive
evidence of guilt violates the Fifth Amendment privilege against self-
Case No. 14-23-12
incrimination.” [CITATION].
However, “[a] defendant’s pre-arrest, pre-Miranda silence may be introduced for
[SEGMENT 21]
impeachment purposes.” [CITATION]. Specifically, when “the
defendant has ‘cast aside his cloak of silence,’” the “use of pre-arrest silence as
impeachment evidence is permitted because it furthers the truth-seeking process.”
[CITATION], quoting [CITATION].
(1980). “Otherwise, a criminal defendant would be provided an opportunity to
perjure himself at trial, and the state would be powerless to correct the record.” Id.
Likewise, “the use of a defendant’s pre-arrest, pre-Miranda silence as substantive
evidence of guilt does not violate the Fifth Amendment privilege against self-
incrimination if the defendant fails to expressly invoke the privilege.” [CITATION].
{¶49} Importantly, “the Constitution does not prohibit references to a
defendant’s invocation of the right to remain silent as a ‘fair response’ to a
defendant’s claims.” [CITATION], quoting [CITATION].
864 (1988). See also [CITATION] (“‘The United States Supreme Court has held that the Fifth Amendment
does not prohibit references to a defendant’s invocation of the right against self-
incrimination when the references are made in “fair response” to the defense’s
====== End of Part ====== Case No. 14-23-12
claims.’”), quoting [CITATION]. “A fair response is warranted in such
circumstances because ‘“the protective shield of the Fifth amendment”’ should not
become ‘“a sword that cuts back on the area of legitimate comment by the
prosecutor on the weaknesses in the defense case.”’” [CITATION].
{¶50} The prosecutor’s cross-examination of Bender regarding his pre-
arrest, pre-Miranda silence was not improper. Critically, the State’s cross-
examination of Bender amounts to impeachment evidence, which did not violate
Bender’s right to remain silent. Accord [CITATION]. That is, the prosecutor’s
cross-examination of Bender regarding his pre-arrest, pre-Miranda silence was a
fair response to Bender’s self-defense claim. See [CITATION].
See also [CITATION].
{¶51} Therefore, since the prosecutor did not improperly address Bender’s
invocation of his Fifth Amendment privilege against self-incrimination or his pre-
arrest, pre-Miranda silence, Bender’s substantial rights were not prejudiced and he
====== End of Part of a Court Ruling ====== Case No. 14-23-12
was not deprived of a fair trial. For these reasons, we conclude that the trial court
did not abuse its discretion by denying Bender’s motion for a mistrial.
{¶52} Bender’s second assignment of error is overruled.
Third Assignment of Error
The Trial Court Erred When It Failed To Give A Jury Instruction
On Aggravated Assault.
Fourth Assignment of Error
The Trial Court Erred When It Gave An Improper Instruction
On Self-Defense.
Fifth Assignment of Error
The Trial Court Erred When It Failed To Send Verdict Forms To
The Jury As To The Issue Of Self-Defense.
{¶53} In his third, fourth, and fifth assignments of error, Bender challenges
the trial court’s jury instructions and verdict forms. In particular, in his third
assignment of error, Bender argues that the trial court erred by failing to instruct the
jury on the inferior-degree offense of aggravated assault. Bender specifically argues
in his fourth assignment of error that the trial court erroneously instructed the jury
regarding self-defense. Finally, in his fifth assignment of error, Bender argues that
the trial court erred by providing the jury with improper verdict forms.
Standard of Review
{¶54} “A trial court’s decision to give a jury instruction is within its
discretion, and we will not reverse such a decision absent an abuse of that
Case No. 14-23-12
discretion.” [CITATION]
Again, an abuse of discretion implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. [CITATION]
Analysis
{¶55} “While a trial court has broad discretion to determine how it will
instruct a jury, the court has a duty to ‘fully and completely give the jury all
instructions which are relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.’” [CITATION], quoting [CITATION] “Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction.”
[CITATION]
Aggravated Assault Instruction
{¶56} In his third assignment of error, Bender contends that the trial court
erred by failing to instruct the jury on the inferior-degree offense of aggravated
assault. “[A] trial court may refuse to issue a requested jury instruction if ‘“the
evidence adduced at trial is legally insufficient” to support it.’” [CITATION], quoting [CITATION] quoting [CITATION]. See also [CITATION]
====== End of Example ====== Case No. 14-23-12
decision whether to give a requested instruction, the appropriate inquiry is whether
sufficient evidence has been presented to support the instruction.”). “[T]he trial
judge is in the best position to gauge the evidence before the jury and is provided
the discretion to determine whether the evidence adduced at trial was sufficient to
require an instruction.” [CITATION]
{¶57} “Aggravated assault is an offense of an inferior degree of felonious
assault.” [CITATION] “An instruction on aggravated assault is appropriate when the evidence supports a
conviction for felonious assault, but the assault resulted from serious provocation
by the victim.” [CITATION]
¶ 8. That is, “[i]n a trial for felonious assault, where the defendant presents sufficient
evidence of serious provocation, such that a jury could both reasonably acquit [the]
defendant of felonious assault and convict [the] defendant of aggravated assault, an
instruction on aggravated assault, as an inferior degree of felonious assault, must be
given.” (Emphasis sic.) [CITATION]
{¶58} “‘Provocation, to be serious, must be reasonably sufficient to bring on
extreme stress and the provocation must be reasonably sufficient to incite or arouse
the defendant into using deadly force.’” Id. at ¶ 26, quoting [CITATION] “‘In determining whether
the provocation was reasonably sufficient to incite the defendant into using deadly
Case No. 14-23-12
force, the court must consider the emotional and mental state of the defendant and
the conditions and circumstances that surrounded him at the time.’” Id., quoting
[CITATION] at paragraph five of the syllabus.
{¶59} “Ohio courts considering what constitutes sufficient ‘serious
provocation’ have found that past incidents or verbal threats are not sufficient;
words are not sufficient; and a victim’s simple pushing or punching the defendant
is not sufficient.” [CITATION] No. L-22-1166, 2023-Ohio-
3543, ¶ 53. Similarly, “[r]egarding the emotional state necessary to constitute
sudden passion or a sudden fit of rage, Ohio courts have found that confusion or
fear alone is not sufficient.” Id. at ¶ 54. Indeed, “where a defendant testifies that
he was merely afraid and no evidence exists that he actually acted under a sudden
fit of passion or rage, a court does not abuse its discretion by refusing to provide an
instruction on aggravated assault.” [CITATION] at ¶ 36.
{¶60} On appeal, Bender argues that he presented sufficient evidence that he
acted under serious provocation. In response, the State expostulates that
“[a]ggravated assault is generally incompatible with a theory of self-defense
because self-defense requires proof of fear while aggravated assault requires a
showing of a sudden passion or rage.” (Appellee’s Brief at 20). In the alternative,
the State asserts that Bender did not present any evidence that he “acted ‘in a sudden
fit of rage.’” (Id. at 21). Instead, the State proclaims that Bender “unequivocally
testified that he stabbed [B.H.] out of a fear for his safety.” (Id.).
Case No. 14-23-12
{¶61} “This Court has stated that a defendant who asserts self-defense “‘is
not entitled under Ohio law to instructions on self-defense and on lesser included
offenses [or inferior degree offenses], but must choose between the two.”’” [CITATION], quoting [CITATION], quoting [CITATION]. Our sister courts of
appeal have agreed that “[i]n most cases, an aggravated assault instruction is
incompatible with an instruction on self-defense, so that both cannot be given
together.” [CITATION]. See also [CITATION] (“Generally, an instruction on aggravated assault is incompatible with an instruction
on self-defense, such that both cannot be given together, because the legal theories
underpinning each offense are incompatible (aggravated assault—rage; self-
defense—fear).”).
{¶62} However, some courts have diverged and resolved that “‘[w]here there
is sufficient evidence on the issues of self-defense and aggravated assault, the court
[SEGMENT 22]
must charge the jury on both, when so requested.’” [CITATION], quoting [CITATION]. See also [CITATION]. “For instance, an aggravated assault instruction could be given in a self-
Case No. 14-23-12
defense case where a defendant exceeded the amount of force necessary for his
defense, out of passion or rage.” [CITATION] at ¶ 26.
{¶63} Nevertheless, we need not resolve such disaccord in this case because
Bender did not present sufficient evidence that he acted under “sudden passion or a
fit of rage” as contemplated by the aggravated-assault statute. Decisively, the theory
of Bender’s case was that he stabbed B.H. nine times out of fear. Indeed, Bender
testified that he found himself on the ground with B.H. “on top of [him] attacking
[him] at which point [B.H.] took the mid section of his forearm and placed it on
[Bender’s] throat and [he] could no longer breathe.” (Feb. 7, 2023 Tr., Vol. II, at
166). Bender testified that “[a]t that point in time, [he] didn’t know if he was going
to stop. [He] could not get him off of [him]. [He] could not get his body weight off
of [him], so [he] reacted accordingly until [he] felt the pressure come off [his] neck.”
(Id. at 172). That is, he testified that he “pulled out [his] knife and [he] stabbed him
in the back, in the lower buttocks and the thigh until he stopped and [Bender]
deemed him no longer a threat.” (Id.).
{¶64} Critically, Bender testified that “[i]t was at that time that [he] could no
longer breathe that [he] feared that [his] life was in danger and [he] reacted
accordingly.” (Emphasis added.) (Id. at 166-167). Specifically, Bender testified
that he stabbed him “[t]o get him to stop” because he “felt that [his] life was in
danger” and he “wanted to neutralize the threat.” (Id. at 173). In sum, Bender
testified that “[t]he moment that [he] felt the pressure come off [his] neck and [he]
Case No. 14-23-12
could once again breathe is the * * * moment that [he] stopped stabbing him * * *
.” (Id. at 167).
{¶65} Based on the foregoing, we conclude that Bender presented evidence
that he acted out of fear and not out of sudden passion or a fit of rage. See [CITATION]. That is, Bender
did not present reasonably sufficient evidence that the circumstances incited him to
use deadly force to repel the attack. As a result, Bender did not present sufficient
evidence of serious provocation. Compare [CITATION].
Consequently, the trial court did not abuse its discretion by failing to instruct the
jury on the inferior-degree offense of aggravated assault.
Self-Defense Instruction
{¶66} In his fourth assignment of error, Bender argues that the trial court
erred by instructing the jury that he had a duty to retreat in contravention of Ohio’s
“stand your ground” law under R.C. 2901.09. “The amended ‘stand your ground’
law in Ohio now provides that ‘a person has no duty to retreat before using self-
defense * * * if that person is in a place in which the person lawfully has a right to
be.’” [CITATION], quoting R.C. 2901.09(B), and citing [CITATION]. The statute further provides that “[a] trier of fact
shall not consider the possibility of retreat as a factor in determining whether or not
a person who used force in self-defense * * * believed that the force was necessary
====== End of Court Ruling ====== Case No. 14-23-12
to prevent injury, loss, or risk to life or safety.” R.C. 2901.09(C). “‘Simply put, the
new “stand your ground’ law removes, in most cases, the duty to retreat before using
self-defense.’” Warnock at ¶ 46, quoting [CITATION]. But see [CITATION] (cautioning that “R.C. 2901.09(C) is not an
absolute prohibition on introducing evidence involving the possibility of retreat.
Rather, the statute only prohibits fact finders from considering evidence involving
the possibility of retreat to determine whether the defendant’s belief that force was
necessary was reasonable. Fact finders may, however, consider retreat evidence to
determine who was at fault in creating the situation leading to the affray”).
{¶67} In this case, the trial court instructed the jury, in relevant part, that
[i]n determining whether the Defendant, in using force in self-defense
reasonably believed that the force was necessary to prevent injury,
loss, or risk to life or safety, you may not consider the possibility of
retreat by the Defendant. The Defendant had no duty to retreat before
using force in self-defense if the Defendant was in a place in which
he lawfully had a right to be.
(Feb. 8, 2023 Tr. at 70).
{¶68} “Whether the jury instructions correctly state the law is a question that
is reviewed de novo.” [CITATION]. “De novo review is independent, without deference to the lower court’s decision.”
[CITATION].
Case No. 14-23-12
{¶69} Based on our review of the trial court’s jury instruction, we conclude
that the trial court’s jury instruction is a correct statement of law. Compare [CITATION]
at ¶ 48 (concluding that the trial court’s self-defense jury instruction conformed with
Ohio’s “stand your ground” law). Indeed, the trial court’s jury instruction plainly
states the appropriate duty-to-retreat standard as codified in R.C. 2901.09.
Consequently, the trial court’s self-defense jury instruction is not unreasonable,
arbitrary, or unconscionable.
Verdict Forms
{¶70} In his fifth assignment of error, Bender argues that the trial court erred
by failing to give the jury a separate verdict form regarding his self-defense claim.
Specifically, Bender asserts that the trial court should have provided the jury with
verdict forms requiring the jury to assess whether the State met its burden of proving
that he did not act in self-defense.
{¶71} Importantly, Bender did not object to the verdict forms at trial.
Consequently, Bender has forfeited all but plain error on appeal. Accord [CITATION], ¶ 11. Under Crim.R. 52(B), “plain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” “We recognize plain error with the utmost
caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” [CITATION], ¶ 69. “‘For plain error to apply, the trial court must have deviated from a
Case No. 14-23-12
legal rule, the error must have been an obvious defect in the proceeding, and the
error must have affected a substantial right.’” Id., quoting [CITATION]. “‘Under the plain error standard, the
appellant must demonstrate that the outcome of his trial would clearly have been
different but for the trial court’s errors.’” Id., quoting [CITATION] at ¶ 34.
{¶72} When reviewing a trial court’s jury instructions under the plain-error
standard, “‘an appellate court must review the [jury] instructions as a whole and the
entire record to determine whether a manifest miscarriage of justice has occurred as
a result of the error in the instructions.’” [CITATION], quoting [CITATION], ¶ 38, quoting [CITATION], ¶ 137. “An improper or erroneous jury instruction does
not constitute plain error unless, but for the error, the outcome of the trial would
clearly have been different.” Id. Consequently, Bender is required to “demonstrate
that his convictions clearly would have been different had the trial court instructed
the jury on self-defense either before or after the elements of each offense and on
the requirement of unanimity.” Id.
{¶73} On appeal, Bender contends that the trial court erred by “not send[ing]
verdict forms back on the issue of self-defense, as the proper order is for the jury to
determine if the State met its burden beyond a reasonable doubt self-defense [sic]
and that must be a unanimous decision.” (Appellant’s Brief at 17). That is, Bender
argues that
Case No. 14-23-12
[t]he only way for [him] to know that each member of the jury
thoughtfully considered the issue of self-defense and whether the
State met its burden of beyond a reasonable doubt is for each member
of the jury to sign a verdict form that either the State did or did not
prove beyond a reasonable doubt that Mr. Bender did not act in self-
defense.
(Id.).
{¶74} We disagree with Bender’s proposition and join our sister appellate
districts in the conclusion that “[t]here is no requirement for a separate finding in
[SEGMENT 23]
trials with claims of self-defense.” [CITATION]. Accord [CITATION]. See also [CITATION]. Therefore, the absence of a separate verdict form regarding
Bender’s self-defense claim was not error, let alone plain error. Accord Smith at ¶
48.
{¶75} For these reasons, Bender’s third, fourth, and fifth assignments of error
are overruled.
Seventh Assignment of Error
The Trial Court Erred When It Sentenced Appellant To An
Indefinite Sentence: Reagan Tokes.
{¶76} In his seventh assignment of error, Bender argues that his sentence,
imposed under Ohio’s current sentencing scheme (commonly known as the “Reagan
Tokes Law”), is unconstitutional.
Case No. 14-23-12
Standard of Review
{¶77} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” [CITATION], ¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting [CITATION], paragraph three of the
syllabus.
Analysis
{¶78} In this case, Bender challenges the constitutionality of the Reagan
Tokes Law—namely, Bender alleges that the Reagan Tokes Law violates his
constitutional right to a trial by jury in addition to violating the separation-of-powers
doctrine and due-process clause of the Ohio and United States Constitutions.
Imperatively, not only has this court rejected similar facial- and as-applied-
constitutional challenges to the Reagan Tokes Law, but the Supreme Court of Ohio
recently endorsed the constitutionality of the Reagan Tokes Law. Accord [CITATION], ¶ 41. We decline to diverge from such
formidable precedent. Accordingly, Bender’s sentence is not contrary to law.
{¶79} Bender’s seventh assignment of error is overruled.
Case No. 14-23-12
{¶80} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and MILLER, J., concur.
/hls
====== End of Part of a Court Ruling ======
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230457
TRIAL NO. B-2203537-A
Plaintiff-Appellee, :
:
VS.
:
ANASIA SHINHOLSTER, :
Defendant-Appellant. :
STATE OF OHIO, : APPEAL NO. C-230436
TRIAL NO. B-2203537-B
Plaintiff-Appellee, :
:
vs.
:
O P I N I O N.
SAKARIA WILLIAMS, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in C-230457; Affirmed in Part, Sentences
Vacated, and Cause Remanded in C-230436
Date of Judgment Entry on Appeal: April 26, 2024 OHIO FIRST DISTRICT COURT OF APPEALS
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Law Office of Arica L. Underwood LLC and Arica L. Underwood, for Defendant-
Appellant Anasia Shinholster,
Timothy J. McKenna, for Defendant-Appellant Sakaria Williams.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} A takeout order placed by restaurant regulars that took too long sparked
a request for a refund that led to a physical altercation, culminating in three shots fired
and a gunshot wound. Following the incident, codefendants-appellants Anasia
Shinholster and Sakaria Williams (together, “Defendants”) were tried jointly, and both
women were convicted of two counts of felonious assault and sentenced to five-to-six
years in prison.
{¶2} We sua sponte consolidate their two separate appeals into a single
opinion and judgment because Defendants raise overlapping self-defense arguments,
challenging their convictions for felonious assault on manifest weight grounds. Ms.
Shinholster separately raises concerns about a clerical error in the judicial entry
denying her Crim.R. 29 motion for a judgment of acquittal. And Ms. Williams argues
that the trial court failed to merge allied offenses of similar import and that the state
failed to establish the “aiding and abetting” element of felonious assault. After
reviewing the record and the trial court’s decision, we vacate Ms. Williams’s sentences
and remand her case (C-230436) for resentencing. In all other respects, we affirm
both judgments of the trial court.
I.
{¶3} In July 2022, Ms. Shinholster arrived at a restaurant that she regularly
frequented to pick up food that she and Ms. Williams had ordered. Because the order
was not yet ready, she had to wait for the food. Sometimes, when that happened, the
restaurant would offer a free soft drink for their troubles of having to wait longer than
expected. Accordingly, she requested a drink, but the restaurant was out of her
preferred beverage and one of the restaurant’s owners, Jason Williams, declined her
OHIO FIRST DISTRICT COURT OF APPEALS
back-up request because the alternative drink she wanted was more expensive. Ms.
Shinholster was on the phone with Ms. Williams throughout this encounter, with her
annoyance growing by the minute.
{¶4} As Ms. Shinholster left with the order, she announced to Ms. Williams
that she would no longer support the restaurant. Jason overheard this edict.[CITATION]
Testimony and evidence presented at trial established that Ms. Williams and Jason
later exchanged phone calls, adding fuel to the simmering feud. The content of these
phone calls, however, is disputed. According to Jason, although the calls grew heated
at moments, no one said anything outrageous, and he eventually apologized. But Ms.
Shinholster testified that during the last call (the only call to which she was a party),
Jason was irate and disrespectful, hurling profanities at them.
{¶5} Following the phone calls, Defendants determined that they wanted a
refund for their order. Together, they decided that Ms. Williams would enter the
restaurant because the owners would be less familiar with her. Ms. Shinholster
remained in the car with Ms. Williams on speaker phone, so she could hear what
transpired inside the restaurant. Both women carried a gun, consistent with their
normal practice, although Ms. Shinholster testified that she did not know whether Ms.
Williams was armed that night.
{¶6} As Jason and his co-owner and wife, Peta Duffus, began to prepare to
close their restaurant for the evening, Ms. Williams entered the restaurant, demanding
a refund for her order. She claimed that she did not know what was in the order
because her mother had placed it. There is conflicting testimony regarding where
Jason was when the encounter began. Ms. Shinholster testified that she first heard
1 Because Sakaria Williams and Jason Williams share a last name, we refer to Jason Williams as
“Jason” throughout the opinion to avoid any confusion.
OHIO FIRST DISTRICT COURT OF APPEALS
Ms. Williams having a cordial conversation with Jason. But Jason testified that he was
in the back cleaning when Ms. Williams entered the restaurant and did not come to
the front of the restaurant until he heard loud talking and the mention of a gun. And
Ms. Duffus similarly testified that she was the first one to interact with Ms. Williams
while Jason worked in the back.
{¶7} Regardless, it is undisputed that some time at or near the beginning of
the encounter, Ms. Duffus began arguing with Ms. Williams, prompting Ms.
Shinholster to enter the restaurant and Jason to call 911 as he advanced towards the
front of the restaurant. According to Ms. Duffus, when Ms. Williams entered the
restaurant, she flashed her gun. As evidenced by video footage, Ms. Williams walked
behind the counter into the employees-only kitchen area. And Ms. Shinholster stood
in the doorway to the employees-only area to prevent the door from closing. The
owners did not invite Defendants into this area, and Ms. Duffus instructed them to
leave the business multiple times during this portion of the encounter. Ms.
Shinholster testified that they refused to leave because they were waiting for the police
to show up to enable them to procure their refund.
{¶8} At some point during this time, Ms. Duffus picked up a knife, but she
quickly put it down, and never came within an arm’s length of the women while
holding the knife. Nor did anyone touch the knife again during the encounter.
[SEGMENT 24]
Throughout this portion of video evidence admitted at trial, Ms. Duffus indicates that
the women have a gun. And Ms. Shinholster informs the 911 operator that she had her
concealed carry permit.
{¶9} Conflicting testimony exists as to how the physical altercation between
Ms. Williams and Ms. Duffus began. Ms. Duffus testified that she tried to grab the
OHIO FIRST DISTRICT COURT OF APPEALS
food bag from Ms. Williams to see what was in it, and Ms. Williams punched her, spit
in her face, and turned around, and in response, Ms. Duffus grabbed her. Jason
explained that he saw Ms. Duffus chase the women into the lobby and a physical
altercation ensued. And Ms. Shinholster asserted that Ms. Duffus started pushing and
shoving Ms. Williams out of the employees-only area with a dustpan, and Ms. Williams
went to leave, but then Ms. Duffus “attacked” her, punching her and pulling her hair.
Ms. Shinholster insisted that Ms. Williams did not spit at anyone or touch anyone until
she needed to defend herself. Once the physical altercation began, it is undisputed
that Ms. Duffus held Ms. Williams pinned on the ground, as the two women continued
to tussle. Ms. Duffus testified that, at some point during this altercation, she removed
Ms. Williams’s gun from her bag and slid it under the bulletproof glass at the counter,
into the cash register area (presumably to ensure that no one would use it).
{¶10} Ms. Shinholster intervened to assist Ms. Williams, prompting Jason to
attempt to remove her from the restaurant. He and Ms. Shinholster engaged in a
physical altercation at the door of the restaurant as he sought to shove her out of the
restaurant, while she fought to remain inside (and later regain entry). During this
time, Ms. Duffus still had Ms. Williams pinned on the ground. Ms. Williams continued
to call for help, eventually encouraging her companion to “shoot the bitch.”
{¶11} Believing that he locked Ms. Shinholster out of the restaurant, Jason
turned to address the encounter between the two women rolling around on the floor.
However, Ms. Shinholster regained entry and fired three shots at him. In her
recounting of the story, she asserts that he reached into Ms. William’s purse and pulled
out “what looked like to me resembled like a hammer like object” and moved towards
her when she decided to fire three shots in self-defense.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} After the shots were fired, Ms. Shinholster grabbed Ms. Williams, exited
from the restaurant, called the police, and waited by their car for police to arrive. A
detective arrived and interviewed, and then arrested, both women. Upon their arrival
at the Justice Center, officers denied them entry because of their injuries, so they first
went for treatment at a hospital before landing in jail. Ms. Shinholster testified that
she is recovering from a concussion that occurred during the melee, and that she also
suffered a scraped knee and bruised arms. And she testified that the photo evidence
of Ms. Williams (which showed a large bump on her head) accurately portrayed how
she looked following the incident. Jason required surgery for his injury and suffers
ongoing pain from his gunshot wound.
{¶13} Both Defendants were charged with two counts of felonious assault,
felonies of the second degree, in violation of R.C. 2903.11(A)(1) and (2), with firearm
specifications. Both women waived their rights to a jury trial. At trial, Ms. Duffus,
Jason, Detective Carl Blackwell, and Ms. Shinholster testified (notably, Ms. Williams
did not testify). The defense and prosecution also tendered exhibits, including 911
calls, cellphone footage, and various photographs. Ultimately, the trial court found
Defendants each guilty of both counts and sentenced them to the mandatory minimum
of two-to-three years on count 1, plus three years on the firearm specification, and
count 2 running concurrently to count 1, for five-to-six-year indeterminate sentences.
II.
{¶14} On appeal, Ms. Shinholster and Ms. Williams each raise three
assignments of error, with overlapping self-defense arguments. We first address their
self-defense arguments. We then proceed to analyze each defendant’s remaining
assignments of error.
OHIO FIRST DISTRICT COURT OF APPEALS
A.
{¶15} In Ms. Shinholster’s first and second assignments of error and Ms.
Williams’s third assignment of error, Defendants challenge their convictions for
felonious assault as against the manifest weight of the evidence, maintaining that the
state failed to prove beyond a reasonable doubt that they were not acting in self-
defense. Ms. Williams also raises a sufficiency challenge to the self-defense claim.
But, based on the recent change in the law regarding self-defense claims, the
sufficiency of the evidence standard applies to the defendant’s burden of production,
whereas a manifest weight of the evidence standard applies to the state’s burden of
persuasion. See [CITATION]. Thus, “[t]he Ohio Supreme Court has held that a self-defense claim is not
an element of the offense that must be proven by the state and, therefore, it is not
subject to review for sufficiency of the evidence.” [CITATION], citing [CITATION]. Consequently, we
only evaluate Defendants’ convictions through a manifest weight lens.
{¶16} When a defendant raises a self-defense claim, once evidence is
presented that tends to support that their use of force was in self-defense or in defense
of another, “ ‘ “the burden of persuasion requires the state to disprove at least one of
the elements of self-defense * * * beyond a reasonable doubt.” ’ ” (Emphasis added.)
[CITATION]. “Unlike the burden
of production, which concerns a party’s duty to introduce enough evidence on an issue,
the burden of persuasion represents a party’s duty to convince the factfinder to view
OHIO FIRST DISTRICT COURT OF APPEALS
the facts in a favorable manner to them.” (Emphasis sic.) [CITATION] at ¶ 15, citing
[CITATION] at ¶ 17.
{¶17} We will not reverse a conviction unless “the evidence weighs heavily
against [it].” Id. And we will not “second-guess the factfinder’s adjudication of
conflicting evidence” except under “the most exceptional circumstances.” Id. Thus,
when reviewing a manifest weight challenge involving self-defense, we must
determine if “the factfinder disregarded or overlooked compelling evidence that
weighed against conviction.” [CITATION] at ¶ 8, citing [CITATION].
{¶18} Defendants insist that the state failed to prove beyond a reasonable
doubt that they did not act in defense of themselves or of another. Self-defense and
defense of another are affirmative defenses that legally excuse otherwise unlawful
conduct. See [CITATION] at ¶ 21 (“The plain language of R.C. 2901.05(A) reflects that self-defense is still an
affirmative defense.”).
{¶19} Here, the facts that both Defendants were injured during the
altercation and that they claimed that the restaurant owners started the brawl tend to
support the conclusion that they acted in self-defense. Therefore, the burden shifted
to the state to disprove one or more of the elements of self-defense in the use of deadly
force: “(1) the defendant[s] [were] not at fault in creating the situation giving rise to
the affray; (2) the defendant[s] had a bona fide belief that [they were] in imminent
danger of death or great bodily harm and that [their] only means of escape from such
a danger was in the use of such force; [or] (3) the defendant[s] did not violate any duty
to retreat or avoid the danger.” [CITATION], 1st Dist. Hamilton No. C-190507, 2020-Ohio-
OHIO FIRST DISTRICT COURT OF APPEALS
4976, at ¶ 48, citing [CITATION].
The state must only disprove one element beyond a reasonable doubt to defeat the
self-defense claim. See [CITATION], ¶ 9, citing [CITATION], at ¶ 10.
{¶20} Under the first element of a self-defense claim, the state presented
evidence establishing that Defendants were at fault in creating the situation giving rise
to the affray. For the purposes of self-defense, “the first aggressor in an incident is ‘at
fault.’ ” [CITATION], ¶ 30, quoting [CITATION], ¶ 9, citing [CITATION], ¶ 23.
Defendants argue (and Ms. Shinholster testified) that they were not at fault in creating
the situation leading to the shooting because Jason attacked Ms. Shinholster, and Ms.
Duffus attacked Ms. Williams. But Ms. Duffus testified that Ms. Williams spit on her
and threw the first punch. Similarly, Jason testified that he did not get physically
involved with Ms. Shinholster until she engaged in the altercation between the other
two women. Ms. Williams also claims that she was not at fault in creating the situation
because at one point she put up her hood and turned to leave before Ms. Duffus
launched an attack at her. She did not testify at trial, so the only evidence supporting
[SEGMENT 25]
this claim comes from the testimony of Ms. Shinholster indicating that they were going
to leave at this point. But elsewhere during her testimony, Ms. Shinholster
acknowledged that they refused to leave and were waiting for the police to show up.
{¶21} Moreover, the state demonstrated under the second element that
Defendants were not in imminent danger of death or great bodily harm at the time Ms.
Shinholster fired shots at Jason. Both Ms. Shinholster and Ms. Williams arrived for a
OHIO FIRST DISTRICT COURT OF APPEALS
refund with guns. At trial, Ms. Shinholster testified that she “fear[ed] for her life” and
that “[i]f [she] didn’t fire that either Ms. Williams and I would have died that night.”
She also maintained that she “knew Ms. Williams could not breathe because of the
position she was in.” Yet testimony and evidence presented at trial demonstrate that
Ms. Williams was loudly and continuously yelling for help throughout the encounter
(not to mention exhorting her companion to shoot), demonstrating her ability to
breathe. And while Ms. Shinholster testified that Jason was coming at her when she
fired her gun, he testified that he thought he locked her out and had turned back to
address the altercation between Ms. Duffus and Ms. Williams at the time the shots
were fired.
{¶22} Furthermore, the state established that Defendants had a duty to
retreat before using force in self-defense. Under the most recent amendments to R.C.
2901.09(B), a person does not have a duty to retreat before using force in self-defense
if that person is in a place where they lawfully have a right to be. [CITATION], at ¶ 17. While Ms. Shinholster and Ms. Williams were lawfully
able to enter the restaurant, by the time of the shooting, they were trespassers (and
thus, were not in a place where they lawfully had a right to be). Testimony, video
evidence, and the 911 call recordings establish that Ms. Williams entered the
employees-only area of the restaurant without permission. And the restaurant owners
repeatedly instructed Defendants to leave the restaurant before the physical
altercation began. During the recording of her 911 call, Ms. Shinholster responded to
Ms. Duffus’s instruction to leave: “No, we ain’t going nowhere.”
{¶23} Self-defense claims are often rife with issues of credibility. And here,
the state and Defendants largely presented two different versions of the events leading
OHIO FIRST DISTRICT COURT OF APPEALS
up to the shooting. But when there is conflicting evidence presented at trial, we will
not find that a conviction is against the manifest weight of the evidence where a trier
of fact reasonably weighed the conflicting evidence. See, e.g., [CITATION]. On this record, we cannot
conclude that the trial court clearly lost its way or created a manifest miscarriage of
justice in determining that the state proved beyond a reasonable doubt that
Defendants did not act in self-defense. Although some evidence weighs in favor of the
self-defense claims, the weight of the evidence points in the other direction. Therefore,
we overrule Ms. Shinholster’s first and second assignments of error and Ms. Williams’s
third assignment of error.
B.
{¶24} Turning to Ms. Shinholster’s remaining assignment of error, she
maintains the trial court erred by denying her Crim.R. 29 motion for a judgment of
acquittal as to “counts 1 and 2” when she was the named defendant in the third and
fourth counts of the indictment. Specifically, in light of this error, she claims that this
court should vacate her conviction.
{¶25} Defendants were convicted of parallel counts of felonious assault:
counts 1 and 2 against Ms. Williams and counts 3 and 4 against Ms. Shinholster. At
the conclusion of the presentation of evidence at trial, both defendants moved for a
judgment of acquittal pursuant to Crim.R. 29, which the trial court immediately
denied. Two days later, the trial court journalized its denial of the Crim.R. 29 motion
in two entries, one for each defendant. The entries for both defendants listed counts 1
and 2. But the entry regarding Ms. Shinholster should have listed counts 3 and 4 as
those were the charges against her. Of note, however, the entry reflected the
OHIO FIRST DISTRICT COURT OF APPEALS
appropriate offenses (both felonious assault). The court never corrected its error, but
it later docketed an entry finding Ms. Shinholster guilty of the correct counts.
{¶26} A clerical error is “ ‘a mistake or omission, mechanical in nature and
apparent on the record, which does not involve a legal decision or judgment.’ ” [CITATION],
quoting [CITATION].
{¶27} Ms. Shinholster acknowledges that the error was clerical. And the court
orally denied her Crim.R. 29 motion during trial. Further, the court later docketed an
entry finding her guilty of the correct counts. While Ms. Shinholster argues her
conviction should be vacated, we see no basis for vacating the conviction for what
appears to be a scrivener’s error that did not affect her substantial rights. Nor does
she explain how she suffered any prejudice from this clerical error. Without any such
argument, we see no utility in a remand to correct the error given that the ultimate
judgment was correct.
{¶28} In light of the foregoing analysis, we overrule Ms. Shinholster’s second
assignment of error.
C.
{¶29} Finally, we consider Ms. Williams’s remaining arguments. In her first
assignment of error, she asserts that the trial court failed to merge the felonious
assaults in counts 1 and 2 when they were the same offenses against the same victim
and were part of the same immediate and continuing course of conduct. Rather than
ordering Ms. Williams to serve count 2 concurrently, she argues that the court should
have merged the two counts. This court reviews R.C. 2941.25 merger determinations
OHIO FIRST DISTRICT COURT OF APPEALS
de novo. [CITATION], ¶ 28.
{¶30} The Ohio Supreme Court has repeatedly found convictions under these
sections of R.C. 2903.11 “are allied offenses of similar import * * * when both are
committed with the same animus against the same victim.” [CITATION], ¶ 1; see [CITATION], ¶ 1. While a defendant who commits allied
offenses of similar import may be tried for both offenses, they may “only be sentenced
for one offense.” [CITATION], ¶ 5.
{¶31} Here, Ms. Williams was charged with and convicted of felonious assault
under both R.C. 2903.11 (A)(1) and (A)(2), which respectively address the infliction of
serious physical harm and the use of a deadly weapon to cause or attempt to cause
physical harm. Both charges result from her encouraging Ms. Shinholster to shoot and
the resulting injury caused to Jason. The trial court sentenced her on both counts
concurrently. But because the offenses were allied offenses of similar import, the court
should have merged the counts at sentencing. Underscoring the point, the state
concedes this error. Therefore, we sustain Ms. Williams’s first assignment of error.
{¶32} In her second assignment of error, Ms. Williams claims that her
conviction for felonious assault was against the manifest weight of the evidence and
was not supported by sufficient evidence because the state failed to establish the
required elements of the offense. Specifically, she contests the “aiding and abetting”
element of R.C. 2923.03(A)(2), arguing that she did not act in concert with Ms.
Shinholster (who indisputably fired the shots) to commit felonious assault.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} When reviewing a sufficiency challenge, this court asks “ ‘ “whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” ’ ” [CITATION], quoting [CITATION], quoting [CITATION] (1991), paragraph two of the syllabus. “ ‘ “[W]here reasonable minds can reach
different conclusions upon conflicting evidence, determination as to what occurred is
a question for the trier of fact.’ ” ” (Emphasis deleted.) Id., quoting [CITATION], quoting [CITATION] at 279.
{¶34} This court sits as the “thirteenth juror” when reviewing whether a
conviction runs counter to the manifest weight of the evidence. [CITATION]. “[W]e review the evidence, the credibility of witnesses,
and the entire record.” [CITATION], citing [CITATION]. But we will not reverse the conviction unless “the trial
court ‘ “clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” ’ ” Id., quoting [CITATION], quoting [CITATION]
(1st Dist.1983).
{¶35} It is undisputed that Ms. Shinholster shot Jason, so Ms. Williams’s
[SEGMENT 26]
guilt is premised on aiding or abetting. And to support a conviction for aiding or
abetting under R.C. 2923.03(A)(2), “ ‘the evidence must show that the defendant
supported, assisted, encouraged, cooperated with, advised, or incited the principal in
the commission of the crime, and that the defendant shared the criminal intent of the
principal. Such intent may be inferred from the circumstances surrounding the crime.’
OHIO FIRST DISTRICT COURT OF APPEALS
” [CITATION]¶ 15, quoting [CITATION] syllabus. “ ‘ “[I]n order to aid or abet, whether by words, acts, encouragement,
support, or presence, there must be something more than a failure to object.” ’ ” [CITATION] ¶ 12, quoting [CITATION], quoting [CITATION].
{¶36} Ms. Williams maintains that no evidence existed of a common plan or
scheme to fight or shoot anyone. But the state counters that Defendants acted in
concert to cause harm to Jason with a deadly weapon. Defendants planned to get a
refund from the store. They decided that Ms. Williams should enter the store because
the owners were less likely to recognize her. And Ms. Shinholster would wait in the
car on speaker phone, so she could hear everything that transpired inside (and come
to her aid if necessary). Ms. Williams set the plan into motion by entering the store.
And although Ms. Shinholster testified that she did not know Ms. Williams entered
the store with her firearm, she also stated it was their general practice to carry their
firearms, and both women were armed at the time of the affray.
{¶37} Ms. Duffus had Ms. Williams pinned to the ground throughout most of
the physical encounter, so Ms. Williams was unable to access her firearm. However,
there is undisputed evidence that at least once during the encounter, Ms. Williams
instructed Ms. Shinholster to shoot. Ms. Shinholster testified that she did not
remember Ms. Williams saying “shoot” or anything like that, but the prosecutor played
Jason’s 911 call and asked her if she could identify who yelled, “Shoot the bitch.” Ms.
Shinholster identified Ms. Williams as the speaker. And Ms. Duffus testified that Ms.
OHIO FIRST DISTRICT COURT OF APPEALS
Williams instructed Ms. Shinholster to “shoot them.” While on the phone with 911
following the event, Ms. Duffus also stated: “The other one was saying shoot them,
shoot them.”
{¶38} In [CITATION], the defendant and members of his gang arrived at a party in search of an individual
who was involved in a previous altercation with a member of their gang. Witnesses
testified that the defendant yelled “Shoot” and “Shoot the [expletive].” Id. Shots were
fired, and three individuals were injured. Id. Although the identity and the specific
target of the shooter were uncertain, the Ohio Supreme Court upheld the juvenile
court’s finding of delinquency under the principle of complicity by aiding and abetting
because “the juvenile court evaluated the evidence, determined that the [defendant]
had actively encouraged a member of his gang to shoot at someone at the [victim’s]
home with the specific intent to cause harm, and found that the state had sufficiently
shown transferred intent.” Id. at ¶ 17.
{¶39} Like the defendant in [CITATION], Ms. Williams encouraged someone
she knew to be armed to shoot. Accordingly, based on these facts, Ms. Williams’s
conviction for felonious assault was supported by sufficient evidence and was not
against the manifest weight of the evidence. We overrule her second assignment of
error.
* * *
{¶40} In the appeal numbered C-230457, we overrule Ms. Shinholster’s
assignments of error and affirm the trial court’s judgment.
{¶41} And in the appeal numbered C-230436, we sustain Ms. Williams’s first
assignment of error and overrule her second and third assignments of error. We
OHIO FIRST DISTRICT COURT OF APPEALS
vacate her sentences and remand the case for resentencing at which the state must
elect which of the allied offenses it will pursue against her. In all other respects, we
affirm the trial court’s judgment.
[CITATION].
BOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
======
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: G.W. : APPEAL NO. C-230268
TRIAL NO. F17-28X
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 24, 2024
Charles H. Bartlett, Jr., for Appellant Father,
The Helbling Law Firm, LLC, and John J. Helbling, for Appellee Mother. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} This case arises from a custody dispute between appellant (“Father”)
and appellee (“Mother”) over their minor daughter, G.W. On appeal, Father argues
that the juvenile court erred by denying his motion to hold Mother in contempt for
violating a court-approved shared-parenting plan and by awarding Mother custody of
G.W. Because the record supports the juvenile court’s determinations that Mother
substantially complied with the terms of the shared-parenting plan and that awarding
Mother custody of G.W. was in the child’s best interest, we affirm the juvenile court’s
judgment and overrule Father’s assignments of error.
I. FACTS AND PROCEDURE
A. The shared-parenting plan and the parties’ motions
{¶2} In March 2018, the juvenile court approved an agreed shared-parenting
plan (“SPP”) under which the court granted Mother and Father equal legal and
residential custody of G.W. The SPP provided, “[e]ach parent shall be entitled to speak
with or otherwise communicate with their minor child at all reasonable times.” It
required Mother and Father to mediate “any major disagreement between them
relating to the minor child” before any court hearing and to “consult as to the
appropriate school placement for the minor child.” Finally, the SPP stated, “[n]either
parent shall enroll their child in any school or non-school extracurricular activities
and/or sports without the agreement of the other party. * * * Neither parent shall
enroll the child in more than one non-agreed upon activity.”
{¶3} In October 2019, Mother moved to terminate the SPP and sought sole
custody of G.W. Her motion additionally requested that the court hold Father in
contempt for failing to follow the SPP. Likewise, in December 2019, Father moved to
OHIO FIRST DISTRICT COURT OF APPEALS
terminate the SPP and sought legal and residential custody of G.W. In 2020, Father
petitioned the court to find Mother in contempt for failing to follow the SPP and moved
for sole custody of G.W.
B. Magistrate hearing
{¶4} After the court approved the SPP, G.W. split time between Mother and
Father. Mother had lived in Colerain Township for nine years with her other daughter,
Z.T., who was born in 2013. Father lived in St. Bernard when he signed the SPP. He
moved to Harrison, Ohio, with his wife, their infant child, and his wife’s son from a
prior marriage. Father has since moved to Indiana.1
{¶5} Regarding the logistics of G.W.’s medical care, for a time, Mother
provided health insurance for G.W. through her service with the Ohio National Guard.
Father testified that on multiple occasions, he asked Mother to provide him with a
copy of her insurance card, but she never delivered. Mother explained that her
insurance information was contained on her military identification card, which she
could not copy per military policy. Mother testified that whichever parent was with
G.W. at the time a medical appointment needed to be scheduled would make her
medical appointments and then tell the other parent about the appointment.
{¶6} While both parents initially agreed that G.W. would attend preschool,
after the onset of the Covid-19 pandemic, Father objected to G.W. attending preschool.
He cited his concern for his mother and father, both of whom had health issues. As a
result of Father’s objections, G.W. did not attend preschool during the 2020-2021
1 At the hearing, Father testified that he lived in Harrison and though he wanted to move to Indiana,
he had not done so. But both the magistrate’s and juvenile court’s decisions state that Father had
moved to Indiana. It is unclear from the record if or when Father moved to Indiana. But because
Father does not challenge this finding and the juvenile court expressly gave Father’s move to
Indiana no weight, this issue is immaterial to our review.
OHIO FIRST DISTRICT COURT OF APPEALS
school year. When the 2021-2022 school year came around, Father again objected to
G.W. attending preschool. Mother, however, enrolled G.W. in a preschool in her
[SEGMENT 27]
district. (Mother also contacted a preschool in Harrison, Ohio, near Father, but the
preschool was not accepting new students.) During that school year, Mother took G.W.
to preschool during her parenting time. Father did not take G.W. to preschool during
his parenting time.
{¶7} From 2019 through 2022, Mother signed G.W. up for several
extracurricular activities, to which Father objected, partly due to his concerns with the
Covid-19 pandemic. In 2019, Mother asked Father if he would consent to G.W.
participating in gymnastics. While Father objected, Mother, believing that the SPP
allowed either parent to enroll G.W. in one extracurricular at a time over the objection
of the other parent, signed G.W. up for gymnastics. In 2020, G.W. quit gymnastics and
Mother enrolled her in ballet. In 2021, Mother asked Father to consent to G.W.
participating in T-ball as well as ballet. But because Father objected, Mother did not
register G.W. in T-ball. In 2022, G.W. quit ballet and resumed gymnastics. Mother
again asked Father if he would consent to G.W. participating in T-ball and Father again
objected. Though Father objected to T-ball, Mother testified that she signed G.W. up
for T-ball because she believed that T-ball would not overlap with cheerleading, a new
activity for which Mother had registered G.W. As it turned out, T-ball overlapped with
gymnastics and T-ball games fell on one of Father’s days with G.W.
C. The magistrate’s and juvenile court’s decisions
{¶8} Following the hearing, the magistrate granted both parties’ request to
terminate the SPP, denied both parties’ motions for contempt, and granted Mother
sole custody of G.W.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Regarding custody, the magistrate noted that R.C. 3109.04(F)(1) sets
forth the factors to consider in determining the child’s best interest and found that
R.C. 3109.04(F)(1)(d), “the child’s adjustment to the child’s home, school, and
community,” was most applicable and weighed in favor of Mother. And the magistrate
found that neither Mother’s nor Father’s actions rose to the level of contempt. Father
objected to the magistrate’s decision.
{¶10} In April 2023, the juvenile court overruled Father’s objections and
adopted the magistrate’s decision. The juvenile court, like the magistrate, found that
R.C. 3109.04(F)(1)(d) weighed in favor of Mother, noting that G.W. had spent nearly
a full school year at the school in Mother’s district. The juvenile court found that
Mother substantially complied with the SPP and denied both parties’ contempt
motions. The court terminated the SPP, awarded Mother legal custody of G.W., and
awarded the parties equal parenting time.
II. LAW AND ANALYSIS
{¶11} Father raises two assignments of error: The trial court erred by (1)
failing to hold Mother in contempt, and (2) awarding Mother custody of G.W.
A. The trial court correctly denied Father’s contempt motion
{¶12} In asserting that the trial court erroneously denied his contempt
motion, Father argues that Mother testified that she failed to give Father a copy of her
insurance card despite multiple requests, did not consult with Father before making
medical and dental appointments, allowed G.W. to sleep in the same bed as Mother,
interfered with Father’s phone calls to G.W., and failed to use mediation to resolve
disagreements with Father.
```plaintext
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} An appellate court reviews a trial court’s ruling on a contempt motion
for an abuse of discretion. [CITATION], ¶ 19, citing [CITATION], ¶ 4. A court abuses its discretion when its judgment is
unreasonable, arbitrary, or unconscionable. [CITATION]. A court has broad discretion to determine whether
a party violated its orders and what conduct constitutes contempt. [CITATION].
{¶14} Parents subject to a custody order may seek a contempt finding when
the other party interferes or fails to comply with the order. R.C. 2705.031(B)(2). A
moving party establishes a prima facie case of civil contempt by proving, by clear and
convincing evidence, the nonmoving party’s failure to comply with an existing order.
[CITATION], quoting [CITATION]. Once the movant establishes a prima facie case
of contempt, the burden shifts to the nonmovant to establish a defense for the
noncompliance. [CITATION]. A party’s substantial compliance with a court order can
serve as a defense to a contempt finding. See [CITATION]; see also [CITATION], ¶ 14. A technical violation of
a court’s order does not necessarily require a contempt finding. [CITATION], ¶ 13.
{¶15} The record supports the juvenile court’s finding that Mother
substantially complied with its order. Regarding the health-insurance card, the
juvenile court credited Mother’s explanation that Mother could not provide Father
with a copy of her insurance card due to military policy prohibiting her from copying
the card. Moreover, Mother testified that she attempted to provide Father with her
``` OHIO FIRST DISTRICT COURT OF APPEALS
insurance account numbers and made herself available for Father to call her so that
she could give medical providers her insurance information over the phone. As to
Mother’s failure to mediate, Father never moved to compel mediation. Further,
Mother and Father, with their attorneys, met several times to attempt to resolve
disputes. Next, regarding Mother’s enrolling G.W. in preschool, she agreed to forego
preschool for the 2020-2021 year and attempted to consult with Father for the 2021-
2022 school year. Notably, the SPP did not expressly require that the parties agree to
G.W.’s school placement—instead, the plan required the parties to “consult.” Finally,
there was conflicting evidence involving whether Mother interfered with Father’s
telephone calls with G.W. and the court was entitled to believe Mother’s testimony
over Father’s.
{¶16} The juvenile court, which was in the best position to judge the witnesses’
credibility and weigh the evidence, determined that Mother was not in contempt of the
SPP. The trial court was well within its discretion to deny Father’s motion for
contempt. We overrule Father’s first assignment of error.
B. The juvenile court’s custody order was not an abuse of discretion
{¶17} Father argues in his second assignment of error that the juvenile court
erred in determining that awarding Mother custody of G.W. was in G.W.’s best
interest. First, Father argues that the court rewarded Mother for contumacious
behavior by placing weight on G.W.’s adjustment to her school when Mother enrolled
G.W. over Father’s objections. Second, Father argues that the juvenile court failed to
consider which parent is “more likely to honor and facilitate court-approved parenting
time rights or visitation and companionship rights” as required by R.C.
3109.04(F)(1)(f).
OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} An appellate court reviews a juvenile court’s custody determination for
an abuse of discretion. [CITATION]. Custody decisions are among the “most difficult and agonizing decisions” that juvenile
courts make. [CITATION], ¶ 14. Juvenile courts enjoy broad discretion in crafting those
decisions because the knowledge gained through observing the witnesses “cannot be
conveyed to a reviewing court by a printed record.” [CITATION], citing [CITATION]. But that discretion is “not absolute;
the court must follow the procedures described in R.C. 3109.04 when making custody
decisions.” [CITATION], ¶ 7, citing [CITATION].
{¶19} When terminating a shared-parenting plan, the juvenile court is
required to allocate parental rights and responsibilities “as if no decree for shared
parenting had been granted and as if no request for shared parenting ever had been
made.” R.C. 3109.04(E)(2)(d). When allocating parental rights, the juvenile court
must consider the best interest of the child based on “all relevant factors” including
those listed under R.C. 3109.04(F)(1) and (2). Relevant here, those factors include:
(d) The child’s adjustment to the child’s home, school, and community;
***
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
***
OHIO FIRST DISTRICT COURT OF APPEALS
(i) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the other
parent’s right to parenting time in accordance with an order of the court.
R.C. 3109.04(F)(1).
{¶20} The juvenile court expressly set out the required factors under R.C.
3109.04(F)(1) and (2), applied those factors, and found that it was in G.W.’s best
interest to award custody to Mother. The juvenile court discussed the relevant factors
and explained why certain factors did not apply and why other factors did not weigh
in favor of either parent.
[SEGMENT 28]
{¶21} The juvenile court found that, under [CITATION], G.W.’s
adjustment to her school in Mother’s district weighed in favor of granting custody to
Mother. Though Father argues this finding rewards Mother for her contumacious
behavior in enrolling G.W. in school over his objections, the juvenile court correctly
found that Mother’s conduct did not constitute contempt. Further, [CITATION]’s
focus is on G.W.’s best interest, not whether either parent should be “rewarded” with
custody. [CITATION] required the juvenile court to consider only whether
G.W. had adjusted well to her school and community. The juvenile court, noting that
G.W. had attended the school in Mother’s district for almost a year, found that G.W.
had adjusted well to the school. That finding was supported by the record.
{¶22} While Father asserts that G.W. could have adjusted just as well to a
school in his district, G.W. was never enrolled in his district, so the juvenile court could
not have found G.W. adjusted well to a school in Father’s district. In determining what
is in a child’s best interest, juvenile courts consider “the present circumstances, not *
* * what possibly may happen in the future” or what might have hypothetically
OHIO FIRST DISTRICT COURT OF APPEALS
happened if events had transpired differently. [CITATION]
{¶23} Finally, Father argues that the juvenile court failed to consider which
parent is “more likely to honor and facilitate court-approved parenting time rights or
visitation and companionship rights” as required by R.C. 3109.04(F)(1)(f). Mother
argues that Father failed to raise this argument in his objections to the magistrate’s
decision and therefore waived it. Father failed to address the waiver issue and did not
develop a plain-error argument.
{¶24} “Except for a claim of plain error, a party shall not assign as error on
appeal the court’s adoption of any factual finding or legal conclusion * * * unless the
party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).”
Juv.R. 40(D)(3)(b)(iv). All objections to a magistrate’s decision must be “specific and
state with particularity the grounds for objection.” Juv.R. 40(D)(3)(b)(ii). “When an
appellant fails to develop a plain-error analysis, the appellate court need not create
one on the appellant’s behalf and may decline to reach the merits of the claim.” [CITATION], citing [CITATION]. Here, Father’s
objections and supplemental objections did not argue that the magistrate failed to
consider R.C. 3109.04(F)(1)(f). Because Father did not raise this argument below and
has not developed a plain-error analysis, this court declines to reach the merits of this
argument.
{¶25} The juvenile court weighed the evidence, considered the relevant factors
under R.C. 3109.04(F), and determined that awarding custody to Mother was in
G.W.’s best interest. That decision was supported by competent credible evidence.
OHIO FIRST DISTRICT COURT OF APPEALS
While there was competing evidence about what was in G.W.’s best interest, the
juvenile court was in the best position to weigh that evidence and decide what was in
G.W.’s best interest. We hold that the juvenile court’s awarding Mother custody of
G.W. was not an abuse of discretion and we overrule Father’s second assignment of
error.
III. CONCLUSION
{¶26} We overrule Father’s assignments of error and affirm the juvenile
court’s judgment.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
======
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230275
TRIAL NO. B-2202579
Plaintiff-Appellee, :
O P I N I O N.
vs. :
KENDRA FRENCH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 3, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Brian A. Smith Law Firm, LLC, and Brian A. Smith, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Kendra French appeals from the trial court’s
judgment convicting her, after a bench trial, of felonious assault. French argues that
her conviction was against the manifest weight of the evidence, contending that the
evidence demonstrated that she had acted in self-defense. She further argues that the
trial court’s exclusion of a witness’s prior criminal history was an abuse of discretion
and a violation of her rights to due process, a fair trial, and to confront and cross-
examine witnesses under the United States and Ohio Constitutions.
{¶2} Because French’s belief of imminent bodily harm was not objectively
reasonable, the state disproved self-defense beyond a reasonable doubt, and her
conviction was therefore not against the manifest weight of the evidence. And because
French’s counsel did not actually impeach the witness regarding his prior criminal
history, the trial court properly excluded this testimony. Accordingly, we overrule
French’s assignments of error and affirm the judgment of the trial court.
Factual and Procedural Background
{¶3} French was charged with two counts of felonious assault in violation of
R.C. 2903.3(A)(1) and (2) in connection with a May 28, 2022 shooting that resulted in
injuries to French’s neighbor, F.H. The case proceeded to a bench trial on March 14,
2023.
{¶4} At the bench trial, F.H. testified that she lived at an apartment complex
on Losantiville Avenue and that French lived in the unit below her. The Losantiville
apartment complex had four units in total, with two units on each floor. There was an
orange-tiled landing at the entrance, with a set of stairs that led up to the first set of
OHIO FIRST DISTRICT COURT OF APPEALS
apartment units on the right side and a door to a set of stairs leading down to the
basement and garage on the left side.
{¶5} F.H. testified that she and French had a contentious relationship and
that she frequently asked French to keep the noise down to no avail. On the evening
of May 28, 2022, F.H. and her boyfriend, Anthony Jackson, pulled into the driveway
of the apartment complex after getting groceries and they saw that French and her
friend, Warren Bratcher, were seated on a ledge near the garage. According to F.H.,
Jackson and Bratcher began arguing first, and then French squared up to fight F.H.
At that point, all four parties engaged in a physical altercation.
{¶6} After the fight broke up, F.H. and Jackson dropped off their groceries to
F.H.’s apartment. F.H. testified that when she and Jackson went back downstairs to
get the rest of the groceries, French shot her in the face as F.H. opened the door that
led to the basement and garage.
{¶7} F.H. testified that she was transported to the hospital after Jackson
called 911, where she was diagnosed with maxillary and mandible fractures. She also
testified that she did not initiate the first altercation with French and that she did not
have any weapons that night. On cross-examination, she admitted that she provided
a statement at the hospital that she heard a knock on her door and was shot when she
answered, which contradicted her testimony at trial.
{¶8} Jackson also testified at trial. He testified that when he and F.H. pulled
into the driveway, French said something that led to the first physical altercation
between French and F.H. According to Jackson, he tried to break them up, but
Bratcher hit him, and he fell to the ground. Jackson also testified that F.H. was shot
at the bottom of the basement stairs after he had gone back downstairs with her to get
OHIO FIRST DISTRICT COURT OF APPEALS
more groceries. But in an interview with the police, Jackson stated they had barely
gotten the key in the front door when F.H. was shot, which seemingly implied they
were upstairs by F.H.’s apartment. In his testimony, Jackson also denied having
weapons that day, either on his person or in F.H.’s apartment.
{¶9} On cross-examination, French’s counsel tried to elicit testimony from
Jackson regarding a prior conviction for domestic violence. Though Jackson was
charged with domestic violence, he clarified that he was not sentenced to prison and
that he was not convicted of a crime punishable by more than a year. The state
objected to this testimony, and the trial court struck Jackson’s answer, because
Jackson’s conviction was not a felony or a crime of dishonesty in the last ten years.
[SEGMENT 29]
Following the state’s objection, there were no further questions on the issue by
French’s counsel.
{¶10} Detective Jacquelyn Metz also testified at trial. Metz indicated that she
interviewed French, French’s brother, and Jackson at the crime scene, which she also
canvassed. On the orange-tiled landing, she found a shell casing and a human tooth,
and upstairs she found human blood and teeth. Though not qualified as an expert
witness, she testified that, based on her experience, she believed the shell casing came
from a handgun.
{¶11} Detective Charles Zopfi was an additional witness for the state at trial.
Zopfi testified that he interviewed F.H. at the hospital and that she identified French
as the person who had shot her. Per Zopfi’s testimony, he also interviewed French in
the early hours of the morning on May 29, 2022. As Zopfi told the court, according to
French in this interview, she shot F.H. when F.H. lunged down the stairs at French.
Zopfi relayed that French did not recall seeing a weapon on F.H., but that French was
OHIO FIRST DISTRICT COURT OF APPEALS
carrying her gun with her throughout the altercation. According to Zopfi, French also
told him that she had a history of disagreements with F.H., that she had a license to
carry a concealed weapon, and that she believed Jackson had a gun on the night of the
shooting.
{¶12} When the trial court took a recess during Zopfi’s testimony, French’s
counsel observed Zopfi and Officer Christian Russ discussing the case, ostensibly in
violation of a court order separating the witnesses. Zopfi averred that it was a lapse in
judgment and no relevant information was exchanged. At the request of defense
counsel, the trial court admonished the witnesses not to speak to each other.
{¶13} On cross-examination, Zopfi denied that the lack of physical evidence in
the basement was significant. Zopfi clarified that, according to F.H., she was coming
up from the basement and going onto the orange-tiled landing when she was shot.
Based on this, Zopfi contended it would not make sense to find blood stains in the
basement. Zopfi also acknowledged that he interviewed F.H. again two days after the
incident without recording the interview, turning on his body-worn camera, or taking
notes.
{¶14} Russ testified at trial that on the evening of the shooting, he found
French sitting on the front curb of the apartment complex with a bloody nose.
According to Russ, French said, “I am the one that shot her.” Russ testified that he
and another officer retrieved French’s gun, which was empty. They then placed French
in custody.
{¶15} At the close of the state’s case, French moved for an acquittal under
Crim.R. 29. The trial court denied this motion.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} French testified at trial. She testified that she and F.H. often had
disagreements. French further testified that she frequently heard F.H. and Jackson
getting into verbal and physical altercations. She believed that Jackson had a gun in
F.H.’s apartment, although she had never seen it.
{¶17} According to French, it was Jackson who initiated the first altercation
on the night of shooting. She maintained that F.H. made physical contact with her
first by pulling her hair. French contended that Bratcher broke up the first fight.
French further testified that her gun was in her waistband the whole time and that she
did not pull out her gun during the first altercation because she did not feel threatened
at that point.
{¶18} French indicated that she and Bratcher waited outside for a few
moments after the first altercation. French testified that when they went inside, F.H.
lunged at her from the top of the stairs. French testified that because she thought that
F.H. may have gotten a gun from Jackson, she shot F.H. as she lunged at her.
According to French, this caused F.H. to fall backwards. French indicated that F.H.
then bounced up and ran to her apartment. French further testified that she intended
to turn herself into the police to show that she was not guilty and had acted in self-
defense.
{¶19} Bratcher also testified at trial. He testified that Jackson attacked him
first. He heard a shot fired, but did not see anything. He left the scene after hearing
the shot. He also recalled telling French she should not have done what she did while
she was being arrested.
{¶20} The following exhibits were moved into evidence at trial: surveillance
videos submitted by an anonymous neighbor to the police, a recording of Jackson’s
OHIO FIRST DISTRICT COURT OF APPEALS
interview with Metz, and the body-worn camera footage of an unidentified officer on
the scene that evening.
{¶21} These exhibits demonstrate a number of key facts. For example, though
one of the surveillance videos was mostly obstructed by shrubbery and fencing, the
other surveillance video showed two pairs of individuals fighting by the garage, with
one individual falling, as [CITATION] had testified, and another individual having her hair
pulled, as [CITATION] had testified. In addition, in [CITATION]’s interview with Metz, [CITATION]
stated that [CITATION] was trying to get her gun from the car following the first altercation,
but that [CITATION] stopped her. He also indicated that [CITATION] and [CITATION] started the
fight. In the body-worn camera footage, blood splatters were visible near F.H.’s unit,
but not in the basement. Additionally, an officer is seen commenting in the body-worn
camera footage that a tooth and casing were found on the orange-tiled landing.
{¶22} Following the presentation of the defense case, [CITATION] renewed her
Crim.R. 29 motion, which the trial court denied again. The trial court found that F.H.
was the initial aggressor in the first altercation, that [CITATION] had time to get her gun
from her car following the first altercation, that [CITATION] was standing on the orange-
tiled landing when the shooting occurred, and that F.H. was standing at the top of the
steps above the orange-tiled landing. The trial court found that [CITATION] had an honest
belief that she was in danger, but that her perception of the threat from F.H. lunging
at her without a visible weapon was not reasonable. Further, the trial court found that
[CITATION]’s use of force was disproportionate to the danger she perceived.
{¶23} The trial court ultimately found [CITATION] guilty as charged and sentenced
her to five-to-six years of incarceration. She now appeals.
OHIO FIRST DISTRICT COURT OF APPEALS
Self-Defense
{¶24} In her first assignment of error, French argues that her conviction was
against the manifest weight of the evidence, because, she contends, the evidence
showed she acted in self-defense.
{¶25} “[I]n evaluating a manifest weight challenge involving self-defense, we
must review the entire record, consider the credibility of witnesses, and determine
whether the trier of fact clearly lost its way and created a manifest miscarriage of
justice with respect to its finding that the state disproved at least one of the elements
of self-defense beyond a reasonable doubt.” [CITATION]. To disprove self-defense, the state must establish
“beyond a reasonable doubt that the defendant: (1) was at fault in creating the
situation giving rise to the affray; (2) did not have reasonable grounds to believe or an
honest belief that he or she was in imminent danger of bodily harm; or (3) violated a
duty to retreat or avoid danger.” Id. at ¶ 11.
{¶26} “The test for a bona fide belief of imminent bodily harm is both objective
and subjective: whether the defendant’s belief is objectively reasonable and whether
the defendant subjectively had an honest belief of imminent bodily harm.” [CITATION] at ¶ 29.
{¶27} Here, the trial court found that French subjectively had an honest belief
of imminent bodily harm. In reaching this conclusion, the trial court accepted
French’s version of events. It agreed with French that F.H. was the initial aggressor
and that F.H. lunged at her from the top of the landing. But it did not find that French’s
honest belief was objectively reasonable.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶28} French argues that it was objectively reasonable, because it was
plausible that F.H. had a gun in light of Jackson’s prior criminal history and that F.H.
could have reached for that gun when she lunged at French. She further argues that
Jackson and F.H. were not credible, that it was illogical that there were no bloodstains
in the basement, and that her gun was on her person the entire evening. She also takes
issue with Zopfi and Russ’s discussion of the case in violation of the trial court order
requiring the separation of witnesses.
{¶29} The trial court found that French’s use of a gun was disproportionate to
any apparent danger perceived from F.H. lunging down the stairs. F.H. and Jackson
[SEGMENT 30]
denied having weapons that day. Though French challenges their credibility, “it is well
settled law that matters as to the credibility of witnesses are for the trier of fact to
resolve.” [CITATION] “Because the trier of fact sees and hears the witnesses at trial, we must defer to the
factfinder’s decisions whether, and to what extent, to credit the testimony of particular
witnesses.” Id. Therefore, we defer to the trial court’s finding that F.H. was not armed
and that French’s use of a gun was disproportionate.
{¶30} French’s contention that the lack of physical evidence in the basement
disproves F.H.’s version of events is rebutted by Zopfi’s evidence. Zopfi clarified that
F.H. did not mean she was in the basement when she was shot. Rather, F.H. was by
the orange-tiled landing, and it would therefore make sense that physical evidence was
found in the landing and not in the basement.
{¶31} French also fails to explain how the conversation between Russ and
Zopfi affected the outcome of her case. Although French argues that this impacted
their credibility, the court credited her version of events, not theirs. Additionally, the
OHIO FIRST DISTRICT COURT OF APPEALS
trial court admonished Russ and Zopfi to stop talking to each other and confirmed that
nothing of consequence was discussed.
{¶32} Thus, the trial court did not lose its way in finding that the state
disproved that French had reasonable grounds to believe she was in imminent danger
of bodily harm. We therefore overrule French’s first assignment of error.
Evid.R. 609
{¶33} In her second assignment of error, French argues that the trial court
abused its discretion in excluding evidence of Jackson’s prior criminal history.
{¶34} “A trial court’s decision to admit or exclude evidence is reviewed for an
abuse of discretion.” [CITATION], ¶ 6. Evid.R. 609 governs impeachment of a witness’s credibility through the
admission of evidence of a prior criminal conviction, which is either a crime of
dishonesty or a crime that is punishable by death or more than one year of
imprisonment. Evid.R. 609(A). The conviction may be proven only by the witness’s
testimony or by public record shown to the witness during his or her examination.
Evid.R. 609(F).
{¶35} Here, however, French’s counsel failed to actually impeach Jackson
with a prior conviction. The following exchange occurred during Jackson’s cross-
examination:
FRENCH’S COUNSEL: Have you been convicted of a crime punishable
by more than one year in prison in the last ten years?
JACKSON: Is you talking about like domestic violence or something like
that? Yeah.
FRENCH’S COUNSEL: Yes.
OHIO FIRST DISTRICT COURT OF APPEALS
JACKSON: But I haven’t been to prison, no.
FRENCH’S COUNSEL: Okay. What I’m asking is have you been
convicted of something punishable by more than one year?
JACKSON: No.
FRENCH’S COUNSEL: And even if you didn’t get a year, potentially
punishable by more than a year in prison?
JACKSON: No.
***
STATE: Objection, Your Honor, to the relevance of any sort of prior
domestic violence between [F.H.] and Anthony Jackson.
***
TRIAL COURT: Right. The conviction was not for a felony or a crime of
dishonesty in the last ten years. It’s inadmissible, so I’ll strike the
answer.
FRENCH’S COUNSEL: Fair enough.
{¶36} Considering Jackson’s responses to French’s counsel’s questions,
Jackson never indicated that he had in fact been convicted of the requisite crime as
required by Evid.R. 609(F). While Jackson indicated he had been convicted of
domestic violence, he denied having gone to prison at all for this crime and further
denied having any criminal conviction whatsoever for which he faced more than a year
in prison. Following Jackson’s answers, French’s counsel did not use a public record
of the conviction to impeach Jackson as Evid.R. 609(F) contemplates. Instead, when
the state objected, and the trial court struck Jackson’s answer, French’s counsel agreed
to move on. Thus, because Jackson was never properly impeached under either of the
OHIO FIRST DISTRICT COURT OF APPEALS
methods for proving a prior conviction under Evid.R. 609(F), the trial court did not
abuse its discretion in excluding evidence of [CITATION]’s criminal history.
{¶37} Accordingly, we overrule [CITATION]’s second assignment of error.
Conclusion
{¶38} For the reasons set forth above, the trial court’s finding that [CITATION]’s
honest belief of imminent bodily harm was objectively unreasonable was not against
the manifest weight of the evidence. Further, because [CITATION]’s counsel did not
actually impeach [CITATION] under Evid.R. 609, the trial court did not abuse its
discretion in excluding evidence of [CITATION]’s prior conviction. Accordingly, [CITATION]’s
assignments of error are overruled, and the trial court’s judgment is affirmed.
Judgment affirmed.
ZAYAS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230288
C-230318
Plaintiff-Appellee, : TRIAL NO. B-1900989
vs. :
O P I N I O N.
ELTON WHITTLE, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 20, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Robinson & Brandt, P.S.C., and Jeffrey M. Brandt, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Elton Whittle was originally indicted on one count
of trafficking in heroin, one count of possession of heroin, three counts of trafficking
in a fentanyl-related compound, three counts of possession of a fentanyl-related
compound, one count of trafficking in cocaine, one count of possession of cocaine, one
count of trafficking in drugs, and one count of possession of drugs. A jury returned
guilty verdicts on all 12 counts.
{¶2} At the sentencing hearing, the trial court and the parties indicated that
an 11-year sentence was mandatory. The court sentenced Whittle to 11 years in prison
on count three, trafficking in a fentanyl-related compound. For reasons not apparent
in the record, it then merged all the other counts into count three. These appeals
followed.
Factual Background
{¶3} In July of 2017, Officer Scott Brians of the Cincinnati Police Department
received information from security officers at Cincinnati Children’s Hospital Medical
Center (“Children’s Hospital”) about drug sales occurring on Winslow Avenue
adjacent to the hospital’s parking garage. They reported that a black man was
conducting hand-to-hand drug transactions out of a Chevrolet Malibu that was parked
on Winslow. They also provided Officer Brians with the license plate number of that
car. After checking with the Bureau of Motor Vehicles (“BMV”), he found that it was
registered to 2840 Winslow Avenue, Apartment B.
{¶4} In early August 2017, Officer Brians met with a reliable, confidential
informant identified as “CI#1.” CI#1 told him that the suspect in the ongoing drug
sales went by the street name “E” and used a specific telephone number. CI#1 also
said that E used a gold Dodge Durango when making the sales. Officer Brians located
OHIO FIRST DISTRICT COURT OF APPEALS
a vehicle matching that description parked on Winslow Avenue and obtained its
license plate number. After checking that license plate with the BMV, he learned that
it was also registered to 2840 Winslow Avenue, Apartment B. A check of the Regional
Crime Information Center database revealed that Whittle, who had numerous drug-
related arrests, was attached to that license plate number. After seeing a BMV photo
of Whittle, CI#1 confirmed that Whittle was the person he knew as E, who was selling
drugs.
{¶5} On August 25, 2017, officers met with another reliable confidential
informant identified as “CI#3” to arrange a controlled purchase of drugs from E.
Officer Brians monitored a call from CI#3 to E using the phone number he had
obtained from CI#1. E directed CI#3 to meet him at a gas station at the corner of
Reading Road and East Martin Luther King Drive. Officers saw Whittle arrive in a
gold Dodge Durango with the previously identified license plate number. Whittle got
out of the vehicle, approached CI#3, and engaged in a hand-to-hand transaction.
[SEGMENT 31]
Subsequently, the officers met with CI#3 and recovered the drugs that CI#3 had
purchased, which were later identified as a heroin/fentanyl mix.
{¶6} On September 5, 2017, the officers arranged another controlled
purchase. Officer Brians monitored a call from CI#3 to Whittle to arrange a purchase
of heroin/fentanyl. Whittle directed CI#3 to go to Winslow Avenue. At that meeting,
the officers saw Whittle go to a side door at 2840 Winslow Avenue, retrieve something
from inside the door, approach CI#3, and engage in a hand-to-hand transaction. The
officers recovered the drugs purchased by CI#3, which were later identified to be a
heroin/fentanyl mix.
{¶7} On October 30, 2017, a security officer at Children’s Hospital again
called police to report ongoing drug sales at 2840 Winslow Avenue and described the
seller. That description was consistent with the police officers’ observations of
OHIO FIRST DISTRICT COURT OF APPEALS
Whittle. The security officer also stated that the seller lived in an apartment inside
2840 Winslow Avenue and drove a gold Dodge Durango, with the previously identified
license plate, which was parked in the driveway of 2840 Winslow Avenue.
{¶8} Brians stated that the investigation of Whittle’s drug sales was put on
hold for several months when higher priority cases arose. On March 28, 2018, officers
monitored a phone call between another confidential informant identified as “CI#2”
at the same phone number as the previous buys. Whittle directed CI#2 to the gas
station at the corner of Reading Road and Martin Luther King Drive. Whittle drove
up in the gold Dodge Durango with the previously identified license plate. He got out,
approached CI#2, and engaged in a hand-to-hand drug transaction. Once again, the
officers recovered drugs later identified as a heroin-fentanyl mix. When shown a
picture of Whittle, CI#2 identified Whittle as the person who had sold the drugs.
{¶9} On February 6, 2019, a source of information identified as “SI#1”
informed officers that a trafficker known as E, using the same phone number, sold
narcotics out of 2840 Winslow Avenue, Apartment B. SI#1 also told them that E was
driving a silver Toyota Avalon with tinted windows. When shown a photo of Whittle,
SI#1 identified Whittle as E.
{¶10} Officers conducted surveillance at 2840 Winslow Avenue and saw a
silver Toyota Avalon with tinted windows parked in the driveway. They saw Whittle
come out of the building, get into the Toyota and drive away. A short time later, he
returned and used keys to enter the building. A BMV check revealed that the Toyota
was registered to Whittle at the Winslow Avenue address. On February 20, 2019, the
officers saw Whittle get out of the Toyota in the parking lot of a drive-through, engage
in a hand-to-hand transaction, and then get back into the vehicle.
{¶11} Based on the information the officers had obtained, Officer Brians
obtained a search warrant to search the premises at 2840 Winslow Avenue, which had
OHIO FIRST DISTRICT COURT OF APPEALS
four apartments, two on each floor. The warrant stated that apartment B was on the
top northwest corner. It also allowed the officers to search the Dodge Durango and
the Toyota Avalon.
{¶12} Police officers executed the warrant on February 22, 2019. In the
apartment at the northwest corner of the building, they found mail with Whittle’s
name and address on it, fentanyl packaged for sale, packaging material, “ripped up”
lottery tickets, numerous handguns and ammunition, seven cell phones, cash, pills,
heroin, marijuana and digital scales. In the basement’s common area, officers found
more torn lottery tickets and torn plastic baggies, both of which are commonly used to
package drugs. They also found a digital scale, a piece of mail and a traffic ticket with
Whittle’s name on them, and bags of heroin and fentanyl on the top of a bookshelf. A
drug dog alerted to an unlocked storage unit marked “C,” the door of which was
opened. Inside, the officers recovered heroin, fentanyl from the pocket of a gray and
black shirt, a 12-gauge shotgun, and several handguns.
{¶13} Whittle was indicted on one count of trafficking in heroin, one count of
possession of heroin, three counts of trafficking in a fentanyl-related compound, three
counts of possession of a fentanyl-related compound, one count of trafficking in
cocaine, one count of possession of cocaine, one count of trafficking in drugs, and one
count of possession of drugs. He subsequently filed a motion to suppress, in which he
alleged the search was improper because the warrant allowed police to search
apartment B, but they had actually searched apartment D, and the warrant did not
allow the officers to search in the basement anywhere but the storage bin for
apartment B. The trial court overruled the motion.
{¶14} Following a jury trial, Whittle was found guilty of all 12 counts charged
in the indictment. The trial court sentenced him on count three, which was trafficking
in a fentanyl-related compound under R.C. 2925.03(A)(2), and merged the other
OHIO FIRST DISTRICT COURT OF APPEALS
counts. As required by R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b), the trial court
sentenced Whittle to a mandatory 11 years in prison. This appeal followed.
Search-Warrant Issues
{¶15} Whittle presents six assignments of error for review. In his first
assignment of error, he contends that the trial court erred by failing to grant his motion
to suppress. He argues that the search warrant failed to accurately and particularly
describe the residence to be searched, no probable cause existed that evidence would
likely be found in the residence to be searched, and that the officers failed to act in
good faith by entering the incorrect residence rather than seeking a new and accurate
warrant once they learned that the description of the property was inaccurate. This
assignment of error is not well taken.
{¶16} Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard. [CITATION].
{¶17} To establish probable cause to issue a search warrant, the supporting
affidavit must contain sufficient information to allow a magistrate to draw the
conclusion that evidence is likely to be found at the place to be searched. [CITATION], ¶ 11 (1st Dist.). Probable cause
exists when a reasonably prudent person would believe that a fair probability exists
that the place to be searched contains evidence of a crime. [CITATION], paragraph one of the syllabus; [CITATION]. “[I]t is
clear that ‘only the probability, and not prima facie showing, of criminal activity is the
OHIO FIRST DISTRICT COURT OF APPEALS
standard of probable cause.’ ” (Emphasis deleted.) [CITATION], quoting [CITATION].
{¶18} A reviewing court, which includes a trial court ruling on a motion to
suppress, as well as an appellate court, must give great deference to the magistrate’s
probable-cause determination. [CITATION]. “[A]fter-the-fact
scrutiny by the courts of the sufficiency of an affidavit should not take the form of de
novo review.” [CITATION], quoting [CITATION]. Our duty is to ensure that the
issuing magistrate had a substantial basis for concluding that probable cause
existed. See [CITATION]. Doubtful or marginal cases should be
resolved in favor of upholding the warrant. [CITATION].
{¶19} A search warrant and its supporting affidavit must particularly describe
the place to be searched. Crim.R. 41(C); [CITATION]. Because a search warrant and supporting affidavit
usually contain more information than just an address to identify the place to be
searched, a search warrant is not necessarily invalid if it describes the property to be
searched with an incorrect address. [CITATION]. To determine whether a
property description is constitutionally valid, the trial court must determine whether
the place to be searched is described with sufficient particularity to enable the
executing officer to locate and identify the premises with reasonable effort and
whether there is a reasonable probability that another premises might be mistakenly
searched. [CITATION].
{¶20} As to the place to be searched, the warrant stated:
OHIO FIRST DISTRICT COURT OF APPEALS
Winslow Avenue #B, Cincinnati Ohio, 45206. Further described
as a two story red brick multi-family building with red trim Entry to the
building is thru [sic] a white steel door on the west side of the building.
Entry to apartment B will be thru [sic] a brown wooden door with the
letter B affixed to it located on the second floor, North West corner.
{¶21} At the hearing on the motion to suppress, Officer Brians testified that
before the execution of the search warrant, he knew that Whittle’s mother lived in the
[SEGMENT 32]
bottom right apartment, Whittle’s father lived in the top right apartment, an unknown
person lived in the bottom left apartment, and Whittle lived in the top left apartment,
which was the northwest corner of the building. He identified apartment B in his
affidavit because he relied on information from a confidential informant who told him
that the apartment letter was B, that it had a brown door, and that it was located on
the northwest corner of the second floor. He conducted BMV checks to rule out the
other apartments.
{¶22} When Officer Brians was asked if he searched apartment B, he replied,
“The top, left apartment, yes.” When asked if he had checked the letters on the doors,
he said that he had not because SWAT officers had already cleared the apartment that
he described as “the goal apartment or the objective apartment [that] was the top, left
apartment in the northwest corner.” When he entered the building, he did not look at
any of the apartments on the first floor and did not see any letters on the doors of
either of the two apartments on the second floor.
{¶23} The state submitted into evidence a photograph of the door taken at the
time of the search. It shows a brown door with no letter on it. Officer Brians stated
that the picture depicted the door to the apartment that was searched. On cross-
examination, defense counsel showed him a photo taken months after the execution
of the warrant. Officer Brians acknowledged that the apartment on the top northwest
OHIO FIRST DISTRICT COURT OF APPEALS
corner of the building was not apartment B. He added, “The top northwest corner is
what I considered to be apartment B when I wrote the warrant.”
{¶24} Officer Brians also acknowledged that the photo depicted apartment B
as being on the first floor, but he said that “I don’t know that it was that way at the
time of the warrant.” He also agreed with the statement that “[f]or all we know, this
‘B’ could have been placed there by Mr. Whittle or someone else after the fact.”
{¶25} Although the warrant in this case mistakenly listed apartment B as the
place to be searched, the warrant and the testimony at the suppression hearing clearly
showed that the premises to be searched was on the top floor of the northwest corner
of the building, and that was the apartment that the police officers searched. Inside
that apartment, they found mail with Whittle’s name on it. The information known to
the officers as set forth in the warrant was sufficient to locate the apartment with
reasonable efforts.
{¶26} Further, the house had been under surveillance before the search. The
officer who drafted the affidavit used to obtain the warrant also participated in the
execution of the warrant, which diminishes the chances of a mistaken search. See
[CITATION]. Under the
circumstances, we cannot hold that the trial court erred in denying Whittle’s motion
to suppress. Therefore, we overrule his first assignment of error.
{¶27} In his second assignment of error, Whittle contends that trial court
erred in failing to suppress evidence “as a result of an invalid and otherwise flawed
search warrant.” He argues that the search warrant was invalid because the affidavit
in support of the warrant did not have a notary seal. This assignment is not well taken
{¶28} R.C. 2933.23 governs the affidavit supporting a search warrant. It
provides,
OHIO FIRST DISTRICT COURT OF APPEALS
A search warrant shall not be issued until there is filed with the judge or
magistrate an affidavit that particularly describes the place to be
searched, names or describes the person to be searched, and names or
describes the property to be searched for and seized; that states
substantially that the offense in relation to the property and that the
affiant believes and has good cause to believe that the property is
concealed at the place or on the person; and that states the facts upon
which the affiant’s belief is based.
{¶29} Similarly, Crim.R. 41(C)(1) provides,
A warrant shall issue on either an affidavit or affidavits sworn to before
a judge of a court of record or an affidavit or affidavits communicated
to the judge by reliable electronic means establishing the grounds for
issuing the warrant. In the case of a search warrant, the affidavit shall
name or describe the person to be searched or particularly describe the
place to be searched, name or describe the property to be searched for
and seized, state substantially the offense in relation thereto, and state
the factual basis for the affiant’s belief that such property is there
located.
{¶30} The affidavit supporting the warrant meets those requirements.
Neither the statute nor the rule requires the affidavit to be notarized. Whittle
acknowledges that the statute and the rule do not require a notary seal. Nevertheless,
he cites [CITATION], which requires a notary public to obtain a seal prior to the
discharge of his or her official duties, and [CITATION], the statute setting forth
notarial certificate requirements. He argues that these statutory provisions apply
because under the rules of statutory construction a more specific statute controls over
====== End of Document ====== OHIO FIRST DISTRICT COURT OF APPEALS
a more general statute. Therefore, the more specific provisions of R.C. 147.542
override the more general provisions of R.C. 2933.23 and Crim.R. 41. See R.C. 1.51.
{¶31} But Whittle has it backwards. R.C. 2933.23 and Crim.R. 41 codify the
specific requirements for search warrants and the affidavits supporting those
warrants, while R.C. Chapter 147 applies to notary publics and their certifications of
documents generally. Therefore, R.C. 2933.23 and Crim.R. 41 supersede R.C.
Chapter 147. See [CITATION].
{¶32} Moreover, generally, suppression of evidence is only warranted for rule
violations of “constitutional magnitude.” [CITATION]. Ministerial acts should not “cause a warrant to fail.” [CITATION]. Even if a notarization of the
warrant was required, the affidavit was sworn to in the presence of a judge, and the
failure to have it notarized would not render it inadmissible by the Fourth
Amendment. See [CITATION]. Consequently, we overrule Whittle’s second
assignment of error.
Other-Acts Evidence
{¶33} In his third assignment of error, Whittle contends that the trial court
erred in admitting evidence of the five controlled buys as he was not charged with any
offenses as a result of those buys. He argues that it was improper character evidence
admitted in violation of Evid.R. 404(B). This assignment of error is not well taken.
{¶34} The state argues and this court has held that Evid.R. 404(B) does not
apply to acts that are “not independent” of the charged crime. [CITATION].
OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-210227, [CITATION], ¶ 14. Other-acts evidence is admissible
when the other acts demonstrate the “setting” of a case and are part of the “immediate
background” of the charged offenses. [CITATION], 1st Dist. Hamilton No. C-
220477, [CITATION], 1st Dist. Hamilton No. C-220570,
[CITATION], 208 N.E.3d 1043, ¶ 19 (1st
Dist.); David at ¶ 16; [CITATION], 1st Dist. Hamilton No. C-170371, [CITATION], ¶ 30.
{¶35} Whittle did not object when evidence of the controlled buys was
presented at trial. The failure to object precludes him from raising the issue on appeal
unless it rises to the level of plain error. [CITATION], 3 Ohio St.3d 12, 13, 444
N.E.2d 1332 (1983); [CITATION] 1st Dist. Hamilton No. C-120561, [CITATION], ¶ 22. An alleged error does not rise to the level of plain error unless, but for the
error, the outcome of the trial would have been otherwise. [CITATION], 50 Ohio
St.3d 114, 119-120, 552 N.E.2d 913 (1990); [CITATION], 1st Dist. Hamilton No.
C-081237, [CITATION], ¶ 6.
{¶36} Whittle also argues that the trial court should have excluded the
evidence of the controlled buys under Evid.R. 403(A), which provides that relevant
evidence is not admissible if its “probative value is substantially outweighed by the
danger of unfair prejudice.” We do not address whether the trial court erred in
admitting other-acts evidence under Evid.R. 404(B) or Evid.R. 403(A). Given the
overwhelming evidence of Whittle’s guilt, we cannot hold that but for the admission
of the other-acts evidence, the outcome of the trial would have been otherwise.
Therefore, any error did not rise to the level of plain error. See [CITATION], 50 Ohio
St.3d at 119-120, 552 N.E.2d 913; [CITATION], 1st Dist. Hamilton No. C-081237, [CITATION], at ¶ 6. Consequently, we overrule Whittle’s third assignment of error.
[SEGMENT 33]
OHIO FIRST DISTRICT COURT OF APPEALS
Constructive Possession
{¶37} In his fourth assignment of error, Whittle contends that “the jury
verdicts finding Whittle guilty of all 12 offenses” were against the manifest weight of
the evidence. He argues that the state failed to present competent, credible evidence
that Whittle possessed the items found in the common areas of the basement. This
assignment of error is not well taken.
{¶38} A conviction requires a finding of guilt and a sentence. [CITATION], ¶ 35. Whittle was
only convicted of one count of trafficking in a fentanyl-related compound under R.C.
2925.03(A)(2). Therefore, we address this assignment of error only as it relates to
that conviction.
{¶39} R.C. 2925.01(K) provides that possession “means having control over
a thing or a substance, but may not be inferred solely from mere access to the thing
or substance through ownership or occupation of the premises upon which the thing
or substance is found.” A defendant’s possession of a thing or substance may be
actual or constructive. [CITATION], ¶ 12. Courts have defined constructive possession as “knowingly
exercising dominion and control over an object, even though the object is not within
the person’s immediate physical possession.” [CITATION], ¶ 32, citing [CITATION]. The person must be “conscious of the presence of the
object.” [CITATION]. The state may prove dominion and control and
consciousness of the object by circumstantial evidence. [CITATION].
{¶40} In the common area of the basement, the police officers found a trash
can filled with “tear-offs” from plastic baggies, which was indicative of preparing
OHIO FIRST DISTRICT COURT OF APPEALS
drugs for sale, and more lottery tickets, the same as were recovered from the
apartment. In boxes, they found torn papers with Whittle’s name and address on
them, torn lottery tickets, and torn baggies. On a shelving unit, the officers found
more personal documents with Whittle’s name and address on them. They found
large baggies of heroin and fentanyl sitting on a bookshelf.
{¶41} In the storage bin marked “C,” they found a gray and black shirt that
had a bag of drugs in its pocket. They found a shotgun, and in a hole in the ceiling,
they found several handguns. They found digital scales, commonly used to weigh
drugs for sale, and bags with residual amounts of heroin, fentanyl, and other drugs.
{¶42} Given the presence of identifying documents and other of Whittle’s
personal effects in the apartment where drugs were packaged for sale and other
documents and personal effects in the basement, the circumstantial evidence was
sufficient to allow the jury to infer that Whittle had constructive possession of the
fentanyl found in the basement. Though Whittle denied knowing about any of the
drugs in the basement, the jury did not believe him. Matters as to the credibility of
evidence are for the trier of fact to decide. [CITATION].
{¶43} After reviewing the record, we cannot hold that the trier of fact lost its
way and created such a manifest miscarriage of justice that we must reverse Whittle’s
conviction and order a new trial. Therefore, the conviction was not against the
manifest weight of the evidence. See [CITATION]. We overrule Whittle’s fourth assignment of error.
OHIO FIRST DISTRICT COURT OF APPEALS
Right to Counsel
{¶44} In his fifth assignment of error, Whittle contends that the trial court
erred in failing to grant his request to fire counsel or to at least investigate whether
new counsel was appropriate or whether he should be permitted to represent himself.
This assignment of error is not well taken.
{¶45} The record shows that Whittle changed counsel numerous times over
the course of the proceedings. At the sentencing hearing, Whittle announced that he
wanted to fire his counsel. He stated, “I asked for a few things that I needed and he
didn’t get it.” The court replied, “No. He is with you through this case * * *.” Whittle
added that he wanted to fire his counsel before trial, but that the court “didn’t give
me a chance to,” to which the court replied that Whittle’s assertion was false. As the
court started to proceed on the sentencing hearing, Whittle asked, “I can’t fire my
lawyer?” To which the court replied, “Not at a sentencing on a case where the
sentence is predetermined by law.”
{¶46} The Sixth Amendment right to counsel, implicitly embodies a
“correlative right to dispense with a lawyer’s help.” [CITATION], ¶ 23, quoting [CITATION]. A defendant in a
criminal trial has an independent constitutional right to represent himself at trial
without counsel when the defendant knowingly, voluntarily chooses to waive counsel.
[CITATION],
¶ 5.
{¶47} A criminal defendant must “unequivocally and explicitly invoke” the
right to self-representation. [CITATION], ¶ 29. The record does not show that Whittle unequivocally invoked his
right to self-representation. Further, the request to waive counsel must be timely
OHIO FIRST DISTRICT COURT OF APPEALS
made. [CITATION]. A
motion to waive counsel at the sentencing hearing is not timely. Therefore, the trial
court did not err in refusing to allow Whittle to represent himself and proceed pro se
at the sentencing hearing.
{¶48} Further, the trial court did not err in failing to investigate whether new
counsel should be appointed. An indigent defendant has the right to competent,
effective representation, but not to have the counsel of his or her choice. [CITATION]. “[A] an indigent defendant has no right to have
a particular attorney represent him and therefore must demonstrate ‘good cause’ to
warrant substitution of counsel.” [CITATION], quoting [CITATION].
We review the trial court’s decision to deny a motion for substitute counsel under an
abuse-of-discretion standard. [CITATION].
{¶49} The record shows that Whittle had changed attorneys several times,
and the request to fire his attorney was not timely made. The record does not support
his assertion that he wanted to fire counsel before the trial. Under the circumstances,
we cannot hold that the trial court abused its discretion in denying Whittle’s motion.
Further, even if the court had erred, the court had no choice but to impose a
mandatory prison term. See R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b). Therefore,
any error was harmless. See Crim.R. 52(A). We overrule Whittle’s fifth assignment
of error.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶50} Finally, in his sixth assignment of error, Whittle contends that he was
denied the effective assistance of counsel. He argues generally that counsel failed to
object to improper testimony. He claims that he was prejudiced because an appellate
court could only review it for plain error. This assignment of error is not well taken.
{¶51} A court will presume that a properly licensed attorney is competent,
and the defendant bears the burden to show ineffective assistance of counsel. [CITATION]. To sustain a claim for
ineffective assistance of counsel, the defendant must demonstrate that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
[CITATION]. Counsel’s failure to object is not, by itself, enough to sustain
a claim for ineffective assistance of counsel. [CITATION].
{¶52} Whittle fails to specify where counsel was ineffective for failing to
object. The appellant bears the burden to show error by reference to the record. To
be considered on appeal, errors by a trial court must be argued and supported by legal
authority and citation to the record. App.R. 16(A); [CITATION]. “If an argument exists that can support [an]
assignment of error, it is not this court’s duty to root it out.” [CITATION],
quoting [CITATION]. Therefore, we decline to address Whittle’s argument. See [CITATION]. Consequently, we overrule Whittle’s sixth
assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
ZAYAS, P.J., and KINSLEY, J., concur.
Please note:
OHIO FIRST DISTRICT COURT OF APPEALS
The court has recorded its own entry this date.
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230508
C-230509
Plaintiff-Appellee, : TRIAL NOS. B-2006193
B-2204564
vs. :
PERCY ROSS, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: August 16, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plainitff-Appellee,
Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Percy Ross was indicted for two counts of murder
under [CITATION], with accompanying firearm specifications, one count
of felonious assault under [CITATION], also with accompanying firearm
specifications, and one count of having weapons under a disability under [CITATION]. Ross elected to have a bench trial on the weapons-under-a-disability
count. The trial court found him guilty, but continued the matter for sentencing. At a
jury trial on the remaining three counts, Ross claimed that he acted in self-defense.
That trial ended with a hung jury.
{¶2} Subsequently, he was indicted for one count of tampering with evidence
under [CITATION], with an accompanying firearm specification. The trial court
consolidated the two cases for trial. After a second jury trial, Ross was found guilty of
one count of murder, one count of felonious assault, and one count of tampering with
evidence, and all of their accompanying specifications. The jury acquitted him on one
of the murder counts. The trial court again found him guilty of the weapons-under-
disability charge.
{¶3} The trial court merged the felonious assault count with the murder
count, as well as some of the firearm specifications. It sentenced Ross to serve an
aggregate sentence of 21 years to life in prison on the murder charge. It also sentenced
him to 36 months’ incarceration on the having-weapons-under-disability charge, and
four years’ imprisonment on the tampering-with-evidence charge, both to be served
consecutively to the sentence on the murder charge. This appeal followed. We find
no merit in Ross’s five assignments of error, and we affirm his convictions.
OHIO FIRST DISTRICT COURT OF APPEALS
I. Factual Background
{¶4} The record shows that on November 22, 2020, at about 4:00 a.m., police
received a 911 call about a shooting at a four-unit apartment building at 7815 New
Bedford Avenue in Roselawn. Upon arrival, the responding officers found the body of
Elias Tsibouris lying at the bottom of a set of stairs in front of the main entrance to the
building.
A. Cab Driver’s Testimony
{¶5} Cab driver Stanley Asberry made the 911 call. He testified that he picked
up Tsibouris at about 3:00 a.m. in Roselawn. Tsibouris was a regular customer of the
cab company, and Asberry stated that he was “a nice guy” and that he “liked him so
much.” Tsibouris asked Asberry to drive him a short distance to pick up his girlfriend,
Carlee Otten, at 7815 New Bedford Avenue and then drive them to another location.
{¶6} Upon arriving at that address, Asberry parked across the street from the
building. Tsibouris said that his girlfriend would be coming out shortly. After waiting
about 15 minutes, Tsibouris called her, and she said she was coming. When she did
not, he walked to the front door of the building and knocked, calling out for her.
Asberry said that Tsibouris did not seem angry or aggressive, just irritated that she
had not come out of the building.
{¶7} When his girlfriend did not respond, Tsibouris walked to the back of the
building, while trying to reach her on the phone. Asberry remained seated in his cab.
He had to look through the front passenger seat window, which was rolled down, to
see the building’s front door, which was situated about 25 feet up from the curb. The
front lights of the building were on.
{¶8} When Tsibouris came back to the front door, Asberry asked him what
was taking so long. Tsibouris turned and looked at Asberry. He said that his girlfriend
had called, and she was coming out. Then, Asberry saw the front door of the building
OHIO FIRST DISTRICT COURT OF APPEALS
open, Tsibouris “turned around, and he was surprised, and pow.” Asberry said that
Tsibouris’s hands were down, and he was only holding his cell phone, not any
weapons. He added that there was “no conversation, no nothing.” When the door
opened, “there was a pow. . . . [H]e was not trying to get into the apartment. I never
seen him grab the doorknob or anything. He knocked on the door a few times, that’s
all.” Asberry added that was no time for any interaction between Tsibouris and the
shooter.
{¶9} Tsibouris fell down, and the front door closed. Asberry saw a man run
up the steps inside the building to go into the apartments on the top floor. He
described the shooter as an older gentleman with close-cut, salt-and-pepper hair, who
was a little taller than him.
{¶10} Asberry then drove about a quarter of a mile away and called the cab
company. He was told not to get involved, but he stated that “I like this guy. I’m not
going to go just leave him laying there like that.” Afterwards, he was rattled and drove
home. Later that morning, he met with homicide detectives.
B. The Police Investigation
{¶11} Criminalist Jimmy Pham generated a diagram of the crime scene that
showed blood stains going from the landing where Tsibouris had been shot and down
the steps to where he was found lying in the front yard. He identified a 9 mm shell
casing found underneath the bushes in the front yard. While casings from most
firearms eject to the right, he said that there was no way to determine how the casing
ended up there.
{¶12} Pham stated that no blood was found inside the doorway or in the
common area of the building where the shooter had stood when he fired the gun.
Pham documented a pool of blood on the landing outside the front door, several feet
OHIO FIRST DISTRICT COURT OF APPEALS
from the threshold. He also documented blood spots going down each step from the
landing, consistent with Tsibouris rolling or sliding down the steps after being shot.
{¶13} Detective Greg Gehring arrived at the scene shortly before 5:30 a.m.
After he spoke with Asberry, residents of the building, and the landlord, the
investigation became centered on apartment three. Although the apartment was
leased to another individual, the landlord stated that a person she knew as “Pee Wee”
was residing there. Pee Wee was later determined to be Ross. The police prepared a
search warrant and brought in a SWAT team. A negotiator from the SWAT team
contacted Ross, who returned to the scene. Ross agreed to speak to police at their
office.
{¶14} Ross denied any involvement in the shooting. He told the detectives
that he had been lying down when he heard someone banging on the door. He walked
out into the hallway, and he saw a “guy he knew of” when he looked down the stairs.
He walked back into his apartment to call 911 when he heard a gunshot. He said that
a woman named Linda was with him in the apartment, and he and Linda left the
apartment. The detectives determined that his story was all lies. There was no woman
named Linda, and the person in the apartment with Ross was Otten. Detective Gehring
stated that Ross was at their office a long time, a “matter of hours.” During that time,
Ross never mentioned that he acted in self-defense.
{¶15} Dr. Anne Laib, a forensic pathologist and deputy coroner with the
Hamilton County Coroner’s Office, performed an autopsy on Tsibouris. She
determined that Tsibouris was 44 years old, was five feet eleven inches tall, and
weighed 337 pounds. She testified that his cause of death was a gunshot wound to the
head.
{¶16} Dr. Laib further testified that there was a muzzle imprint on Tsibouris’s
head, which meant that the murder weapon had been “pressed firmly and forcefully
OHIO FIRST DISTRICT COURT OF APPEALS
against the skin” when it was fired. She found soot and gunpowder deep within the
wound, which only happens when a gun is pressed against the skin. The bullet traveled
through Tsibouris’s right eye, the base of his skull, and through his brain. It exited
[SEGMENT 2]
through the upper left skull behind his left ear. Dr. Laib also found that the left sides
of Tsibouris’s arm, shoulder and leg were scraped and bruised, consistent with him
falling on his left side.
{¶17} A toxicology report showed that Tsibouris had fentanyl and cocaine in
his system at the time of his death. Dr. Laib testified that he was “acutely intoxicated,”
which means that the drugs were still in their “unbroken down form in the body.” She
further stated that at the time he was shot, he was under the influence of those drugs,
but she clarified that she could not say how he metabolized those drugs or how they
affected his behavior the night of the shooting.
C. Ross’s Testimony
{¶18} The State introduced Ross’s testimony from the previous trial into
evidence. Ross stated that he had gotten out of prison in August 2020, and that he
was on postrelease control. The conditions of his postrelease control required him to
stay away from hard drugs and guns. He lived in his nephew’s apartment at 7815 New
Bedford Avenue while his nephew was in prison. The landlord was his nephew’s best
friend and allowed Ross to perform various tasks in the building in lieu of rent.
{¶19} At some point prior to November 14, 2020, Carlee Otten moved in with
Ross and spent most nights there. She was a drug addict, who used, among other
things, crack, heroin, and fentanyl. Ross said that he knew that she used drugs in her
room, but he allowed her to move in because he thought it was safer for her than being
on the street.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Ross also knew that Otten spent time with Tsibouris, and Otten told
Ross that she had taken $3,800 from him. At one point, Ross drove Otten to see
Tsibouris, and when he did not hear from her in several days, he became concerned.
After Ross told Tsibouris that he would call the police if he did not hear from Otten,
he received a call from her, asking him to pick her up. She told Ross that Tsibouris
had “kept her hostage.”
{¶21} At about 3:30 a.m. on November 14, 2020, Ross was asleep in his
apartment when he heard “boom, boom,” and a crash. Then he heard banging on his
apartment door. When Ross looked through the peephole, he saw Tsibouris standing
there. Otten was standing behind Ross. As he ran to the kitchen to get a butcher knife,
Otten said, “Let me get him out of here.” Ross opened the door to let her out, then
slammed it shut, and locked it. Otten left with Tsibouris. Subsequently, Ross
discovered Tsibouris had kicked in the Plexiglass window to the left of the door to the
building and reached inside to open the door.
{¶22} After Ross told his nephew about that incident, he told Ross that he had
a gun in a shoebox on a shelf in his bedroom. Ross retrieved the gun. He said that he
had no confidence that the entryway door would keep someone from entering the
building.
{¶23} Ross did not see or hear from Tsibouris again until the early morning
hours of November 22, 2020. He said that he had been “smoking weed” all night, fell
asleep, and awakened to the sound of someone banging on the front door of the
apartment building. He looked out the window and saw a cab. He thought it might be
for his downstairs neighbors in apartment two. When he asked Otten if she knew who
it was, she said no.
{¶24} A few minutes later, Ross heard “boom, boom, boom, boom.” He said
the vibration shook the building. The pounding went on for about ten minutes. He
OHIO FIRST DISTRICT COURT OF APPEALS
thought that he should see what was going on, so he “instinctively” grabbed the gun,
although he knew he was violating the conditions of his postrelease control. As he
walked down the stairs, he did not see anyone at the door, even though there were two
windows on either side of the front door.
{¶25} Ross reached with his left hand to open the door, which swung out left
to right, with the gun in his right hand. At that moment, he was shocked and scared
to see Tsibouris. Ross asked Tsibouris, “What are you doing here?” Tsibouris asked,
“Where is Carlee?” Ross remained inside the doorway because Tsibouris was blocking
the entry. Ross told him, “Get out of here. Man, don’t come in here.” When he did
not leave, Ross told him again, “Don’t come in here.” Tsibouris again asked for Otten.
Ross testified that the more times he told Tsibouris to go away, the angrier he got.
{¶26} Tsibouris came toward Ross with his shoulder lowered like he was going
to “swing at me, throw a punch or something and hit me.” As Tsibouris came toward
him, Ross moved back, angling away from him. Ross said that Tsibouris, who was
younger and much larger than Ross, “was looking crazy.” Ross thought there was no
way he could beat Tsibouris. As Tsibouris came closer to him, Ross raised his right
hand with the gun to shoot. When the gun went off, he and Tsibouris were so close to
each other that they touched. Ross did not know if he pulled the trigger intentionally
or accidentally. He said that “it just happened to0 fast.”
{¶27} After the gunshot, Ross could not see Tsibouris. He stepped through
the doorway and saw him lying at the bottom of the steps. He admitted that although
he had said that Tsibouris was coming toward him, Tsibouris never made it to the
threshold of the front door and fell backwards.
{¶28} Ross, who claimed that he had never shot anyone, panicked. He ran
upstairs, changed his shoes, put on a black tee shirt and sweatshirt, and grabbed a
jacket. He told Otten, “We got to get out of here.” Otten stated that there was a warrant
OHIO FIRST DISTRICT COURT OF APPEALS
for her arrest, so she went with him. He drove down Summit Road and got rid of the
gun by throwing it out of his car into a wooded area. He said that even though Otten
was with him, she did not see where he threw the gun.
D. Otten’s Testimony
{¶29} The defense presented Otten’s testimony from the previous trial. She
admitted that she was addicted to fentanyl, heroin, and cocaine at the time. She was
in a relationship with Tsibouris, who was also an addict. Because they were homeless,
they often stayed in Tsibouris’s car, in hotels, or outside. Tsibouris’s drug of choice
was cocaine.
{¶30} In November 2022, Otten often stayed at the apartment where Ross was
living. She had a sexual relationship with Ross, who supplied her with drugs. She
admitted that she was scheming with both Tsibouris and Ross to get as many drugs
from both of them as she could.
{¶31} The night before the shooting, Otten said she was going to leave some
cocaine for Tsibouris in a grill in front of Ross’s apartment, and he was going to leave
some fentanyl for her in exchange. She led Tsibouris to believe that they were going
to be paid a lot of money for the drugs that they would sell. But she put white power
in the grill, and after Tsibouris retrieved it, he realized that he had been scammed.
{¶32} Tsibouris left the area but returned in a cab and waited outside for
Otten. He texted her, “Cab getting off highway,” and “Cab here.” In the meantime,
she had gone upstairs and had fallen asleep after using the fentanyl. Tsibouris texted
her repeatedly and asked why she wasn’t coming down. When he received no answer,
he texted, “Plan B about to happen. We are out front; in 30 seconds I’m coming in.”
He walked to the front door of the building and began knocking loudly enough to wake
her. She texted him, telling him to go away.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} Otten said that Ross woke up and went downstairs to see who was
making all the noise. She texted Tsibouris and told him, “He’s coming. Get off the
fuckin door.” Tsibouris responded, “BRING THE MONEY.” She said that she was in
the kitchen making toast when she heard Ross say, “Who is it?” and tell Tsibouris to
leave. Then she heard a gunshot. Ross returned upstairs and told her that they needed
to leave. He also told her that “he did not mean to do it.” Otten said she left, because
she was afraid of “being charged.” She also told police that Ross had threatened her
[SEGMENT 3]
and her loved ones. When they left through the front door, she did not look at anything
and did not notice Tsibouris’s body.
II. Ineffective Assistance of Counsel
{¶34} In his first assignment of error, Ross contends that he was denied the
effective assistance of counsel. He argues that his counsel was ineffective for failing to
object to and to seek redactions of Ross’s prior testimony, which was inadmissible
under Evid.R. 404(B) and 609(A)(2). This assignment of error is not well taken,
{¶35} A court will presume that a properly licensed attorney is competent, and
the defendant bears the burden to show ineffective assistance of counsel. [CITATION]. To sustain a claim for ineffective assistance of counsel, the defendant must
demonstrate that counsel’s performance was deficient, and that the deficient
performance prejudiced the defense. [CITATION].
{¶36} To establish that counsel’s performance was deficient, the defendant
must show that counsel’s representation fell below an objective standard of
reasonableness. [CITATION]. Judicial scrutiny of
counsel’s performance must be highly deferential. The defendant must overcome the
OHIO FIRST DISTRICT COURT OF APPEALS
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy. [CITATION] at 689; Hackney at ¶ 37. A defendant is not deprived
of the effective assistance of counsel when counsel chooses, for strategic reasons, not
to pursue every possible trial tactic. [CITATION], 38 Ohio St.3d 305, 319 (1988);
Hackney at ¶ 37.
{¶37} To establish prejudice, a defendant must show that there is a reasonable
probability that but for counsel’s unprofessional errors, the result of the proceeding
would have been different. [CITATION] at 694; Hackney at ¶ 38. Prejudice from
defective representation sufficient to justify reversal of a conviction exists only where
the result of the proceeding was unreliable or fundamentally unfair because of
counsel’s performance. [CITATION], 506 U.S. 364, 369-370 (1993); [CITATION], 72 Ohio St.3d 545, 558 (1995); Hackney at ¶ 38.
A. Counsel’s Failure to Object
{¶38} Ross argues that his counsel was ineffective for failing to object to
testimony on cross-examination about Ross’s 30-year-old convictions and his
violations of the conditions of his postrelease control. First, we note that counsel’s
failure to make objections is not, by itself, enough to sustain a claim of ineffective
assistance of counsel. [CITATION], 2006-Ohio-791, ¶ 168; Hackney, 2016-Ohio-
4609, at ¶ 39 (1st Dist.).
{¶39} Generally, the prosecution in a criminal case may not present evidence
that the defendant has committed other crimes or acts independent of the crime for
which the defendant is being tried to establish that the defendant acted in conformity
with his bad character. Evid.R. 404(B); [CITATION], 2013-Ohio-5386, ¶ 20 (1st
Dist.). But Evid.R. 404(B) provides that other bad acts are admissible to show
“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
OHIO FIRST DISTRICT COURT OF APPEALS
mistake or accident.” [CITATION]; Thomas at ¶ 20.
{¶40} Because Evid.R. 404(B) codifies an exception to the general rule, it must
be strictly construed against admissibility. [CITATION]; Thomas at ¶ 21. Nevertheless, the other acts need not be similar to the crime
at issue. If the other acts tend to show by substantial proof any of the items
enumerated in Evid.R. 404(B), evidence of the other acts is admissible. [CITATION]; Thomas at ¶ 21.
{¶41} Evid.R. 609 governs impeachment of a witness’s credibility through
admission of a prior criminal conviction. [CITATION]. Evid.R. 609(A)(2) provides,
Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),
evidence that the accused was convicted of a crime is admissible if the
crime was punishable by death or imprisonment in excess of one year
pursuant to the law under which the accused was convicted and if the
court determines that the probative value of the evidence outweighs the
danger of unfair prejudice, of confusion of the issues, or of misleading
the jury.
Evid.R. 609(B) states,
Evidence of a conviction under this rule is not admissible if a period of
more than ten years has elapsed since the date of conviction or of the
release from confinement, or the termination of community control
sanctions, post-release control, probation, parole, or judicial release
imposed for that conviction, whichever is the later date, unless the court
determines, in the interests of justice, that the probative value of the
OHIO FIRST DISTRICT COURT OF APPEALS
conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect.
{¶42} The record shows that Ross’s testimony was presented by defense
counsel in the first trial. On direct examination, Ross’s counsel began by having Ross
acknowledge that he had lied to the police when he was questioned about the murder.
Ross admitted that he had lied, but he said that he was ready to tell the truth at trial.
Counsel asked if this was the first time Ross had ever been charged with a crime. Ross
acknowledged that he had other convictions for drug-related offenses that had
resulted in prison terms.
{¶43} Then, defense counsel asked him about his most recent time in prison,
and Ross replied that he had been released in August 2020. He testified that he was
subject to postrelease control. The conditions of postrelease control were that he could
not have contact with the police under any circumstances, and that he could not be
around hard drugs or guns. He acknowledged that he had violated those conditions.
{¶44} While still on direct examination, Ross asked if he could say something.
He stated, “I’m 65 years old at the time. Man, I ain’t never shot nobody. I ain’t never
killed nobody. I ain’t never stabbed nobody. I ain’t never cut nobody. I don’t carry
myself like that. I ain’t never hurt nobody, I mean never in my life, my 65 years.”
{¶45} On cross-examination, the state asked about his previous convictions,
especially violent offenses. The state asked, “This is not the first time you’ve been
convicted for a felony weapon conviction.” Ross replied, “N0.” He added that he had
been released from prison in 2020 for a crime that involved a gun. The prosecutor
asked, “You’ve been convicted multiple times of assault on a police officer, isn’t that
correct?” Ross replied, “That was about 30 years ago.” He also stated that he had
pleaded guilty “just to get it over with.”
OHIO FIRST DISTRICT COURT OF APPEALS
{¶46} The State also asked him about the conditions of his postrelease control.
Then the State asked him, “So we already know you’ve been out of prison for about
three months, and you’ve already committed two crimes?” Ross replied, “Okay. Yes,
I have. It’s my fault.” The State then asked him, “When you grabbed that gun, you
walked down the stairs, you knew you were committing a crime?” He replied, “Yes, I
did.”
{¶47} In the previous trial, Ross was a defense witness, testifying on his own
behalf. His previous testimony was presented by the State in this trial. Nevertheless,
his trial strategy in both trials was to be candid about his previous convictions and
other bad acts to enhance his credibility to the jury on his self-defense claim. He
admitted that he lied to police because he knew he was on postrelease control, and he
did not trust the police or understand that he could raise self-defense. In doing so, he
opened the door to questions about his previous convictions.
{¶48} A defendant may introduce testimony, through himself or others, of a
relevant character trait that would tend to prove he acted in conformity therewith on
a particular occasion. Evid.R. 404(A)(1). By introducing that evidence, the defendant
“opens the door” for the prosecution, which is then permitted to rebut or impeach this
character evidence on cross-examination under Evid.R. 405(A). That cross-
examination may include inquiry into relevant specific instances of conduct. [CITATION]
{¶49} Ross specifically put his character for peacefulness at issue through his
voluntary statement that he had never shot, killed, stabbed or cut anyone. See id. at ¶
41. Convictions over ten years old can be admissible under Evid.R. 609(B) if the
“probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.” Arguably, the convictions for assaulting
a police officer were relevant to Ross’s claims that he was not violent, but we question
OHIO FIRST DISTRICT COURT OF APPEALS
whether asking about 30-year-old convictions was proper. Nevertheless, the
[SEGMENT 4]
questions about those convictions were brief, and they were not unfairly prejudicial.
{¶50} Questionable trial strategies and tactics do not rise to the level of
ineffective assistance of counsel. [CITATION]. Simply
because there was “another and better strategy available” did not mean that counsel
provided ineffective assistance. Id. at ¶ 19, quoting [CITATION].
49 (1980). Consequently, we overrule Ross’s first assignment of error.
B. Counsel’s Failure to Request a Limiting Instruction
{¶51} In his second assignment of error, Ross again contends that he was
denied the effective assistance of counsel. He argues that defense counsel’s failure to
request a limiting instruction and final jury instruction regarding the limited purpose
for which the jury could consider his prior convictions, prior inconsistent statements,
and prior bad acts constituted ineffective assistance. This assignment of error is not
well taken.
{¶52} The failure to request limiting instructions on the use of an offender’s
prior convictions does not, in and of itself, indicate ineffective assistance of counsel.
[CITATION],
¶ 17 (12th Dist.). Generally, the failure to request jury instructions is purely a matter
of trial tactics and will not be disturbed on appeal. [CITATION],
¶ 11 (9th Dist.). “This is especially so in cases where the jury instruction at issue
would have undermined or been inconsistent with the defense’s theory of the case.”
[CITATION].
{¶53} The theory of Ross’s defense was that while he had made mistakes in the
past and lied to police, once he took responsibility for his actions, he told the truth. He
also asserted that he lied to the police because he knew he had violated the conditions
OHIO FIRST DISTRICT COURT OF APPEALS
of his postrelease control, and he did not trust the police or know that he could have
raised self-defense. A limiting instruction would be inconsistent with his defense
because his counsel had brought up the prior convictions as a trial strategy.
{¶54} Ross has not overcome the presumption that his counsel’s failure to
request a limiting instruction was a matter of trial strategy. See [CITATION], at ¶ 25; [CITATION] at ¶ 15; [CITATION] at ¶ 16-17. Because Ross has not shown that his
counsel’s performance was deficient, we need not consider the issue of prejudice.
Consequently, we overrule Ross’s second assignment of error.
III. The Court’s Failure to Sua Sponte Give a Limiting Instruction
{¶55} In his third assignment of error, Ross contends that the trial court
committed plain error in failing to give limiting or final jury instructions sua sponte
regarding the limited purpose for which the jury could consider the character
evidence. He argues that the trial court’s failure to do so deprived him of his right to
due process and a fair trial. This assignment of error is not well taken.
{¶56} A court need not sua sponte give a limiting instruction every time other-
acts evidence is presented. “Depending on the nature of the other-acts evidence and
the context in which it is used, defense counsel may as a matter of strategy wish to
avoid highlighting the evidence for the jury.” [CITATION], ¶ 67. The decision not to request a limiting instruction “is sometimes a tactical one,”
and the Ohio Supreme Court has stated that it does not “wish to impose a duty on the
trial courts to read this instruction when it is not requested.” [CITATION], fn. 9.
{¶57} Because trial counsel did not request a limiting instruction, the trial
court was not required to give the jury a limiting instruction concerning the other-acts
evidence. See [CITATION], ¶ 54 (5th Dist.). Therefore, the court
OHIO FIRST DISTRICT COURT OF APPEALS
did not err in failing to give a limiting instruction, much less commit plain error. We
overrule Ross’s third assignment of error.
IV. Speedy Trial
{¶58} In his fourth assignment of error, Ross contends that the trial court
erred in denying his motion to dismiss the tampering-with-evidence indictment. He
argues that that indictment violated his right to a speedy trial. This assignment of
error is not well taken.
{¶59} Our review of the trial court's decision involves mixed questions of fact
and law. [CITATION], ¶ 8 (1st Dist.). We give due weight to
the inferences drawn from the facts found by the trial court as long as they are
supported by competent, credible evidence. We review the trial court’s conclusions of
law de novo to determine whether the facts satisfy the applicable legal standard. [CITATION], ¶ 5 (1st Dist.).
{¶60} Ohio has codified a defendant’s right to a speedy trial in R.C. 2945.71.
[CITATION] at ¶ 11. Under R.C. 2945.71(C)(2), a person charged with a felony must be
tried within 270 days from his arrest. In [CITATION],
the Ohio Supreme Court held, “When new and additional facts arise from the same
facts as did the original charge and the state knew of such facts at the time of the initial
indictment, the time within which trial is to begin on the additional charge is subject
to the same statutory limitations period that is applied to the original charge.”
{¶61} The Supreme Court later distinguished [CITATION]. It held that the State, in issuing a second indictment against
the defendant, was not subject to the speedy-trial time limits of the original indictment
because the subsequent charges were based on new and additional facts that the State
did not know at the time of the original indictment. Id. at syllabus. It stated,
OHIO FIRST DISTRICT COURT OF APPEALS
“Additional crimes based on different facts should not be considered as arising from
the same sequence of events for the purposes of speedy-trial computation.” Id. at 111.
{¶62} “[A] case by case analysis is necessary when applying the new-and-
additional-evidence standard elucidated by Baker.” [CITATION]. In this case, on December 1, 2020, a grand jury indicted Ross for two
counts of murder, felonious assault, and having weapons under a disability. The first
trial ended with a hung jury on the two murder counts and the felonious-assault count.
On September 21, 2022, the state indicted Ross on one count of tampering with
evidence. The trial court consolidated the two indictments for trial. Following several
continuances, most of which were at Ross’s request, the trial began on August 15, 2023,
well over 270 days from the original indictment.
{¶63} In his motion to dismiss for lack of a speedy trial, Ross argued that the
State knew or should have known that he had disposed of the gun he used to shoot
Tsibouris. First, the police did not find a gun at the scene of the shooting. Second,
police spoke to Otten on November 24, 2020, and she stated that Ross had told her
that the gun was gone.
{¶64} Even though the State knew the gun was missing, it had no knowledge
of what exactly had happened to it. During his interview with the police, Ross denied
that he was involved in the shooting. Although Otten testified that Ross had told her
the gun was gone, she did not know any further details. She stated, “Yes, someone got
rid of it. He got rid of it, or whatever, but it wasn’t going to be found.” That statement
alone was not sufficient to support an indictment for tampering with evidence. A mere
suspicion based on some evidence is not enough to say that the second indictment was
based on information known to the State at the time of the original indictment. See
[CITATION].
OHIO FIRST DISTRICT COURT OF APPEALS
{¶65} It was not until Ross testified in the first trial that the State learned that
Ross had thrown the gun into a wooded area near the scene. Consequently, the State
was not subject to the speedy-trial time limits of the original indictment because the
second indictment was based on new and additional facts that the State did not know
at the time of the original indictment. Therefore, we overrule Ross’s fourth assignment
of error.
V. Self-Defense
{¶66} In his fifth assignment of error, Ross contends that the jury verdicts
finding him guilty of counts two and three, felonious assault and murder, were against
the manifest weight of the evidence. He argues that the state failed to prove that he
was not acting in self-defense. This assignment of error is not well taken.
{¶67} As a preliminary matter, the jury found him guilty of felonious assault
in count two of the indictment. But the trial court merged that count with count three,
one of murder charges. A conviction requires a finding of guilt and sentence. [CITATION]. So even though the jury found him guilty
of felonious assault, there was no conviction because the trial court merged it with the
murder count. See [CITATION]. Therefore, we
address this assignment of error only in relation to the murder conviction.
{¶68} Generally, the elements of self-defense in cases of deadly force are: (1)
the defendant did not create the situation giving rise to the affray; (2) the defendant
had a bona fide belief that he was in imminent danger of death or great bodily harm;
[SEGMENT 5]
and (3) the defendant did not have a duty to retreat or avoid danger. [CITATION]. The
elements of self-defense are cumulative, and a defendant’s claim of self-defense fails
OHIO FIRST DISTRICT COURT OF APPEALS
if any one of the elements is not present. [CITATION].
{¶69} In 2018, the Ohio legislature modified R.C. 2901.05 to change the
treatment for the use of force in self-defense and to add a new burden-shifting
provision. [CITATION]. The statute
was amended again in 2021, but that amendment did not substantively change the
applicable provisions. We apply the statute in effect at the time of the offense. See
[CITATION].
{¶70} Under the applicable former version of R.C. 2905.01(B)(1), the
defendant had the initial burden of production to present evidence that “tends to
support” a claim of self-defense. [CITATION]. While the “tends to support” language was a “new feature” in the 2018
amendment of the statute, that phrase did not change the defendant’s burden of
production. [CITATION]. The defendant must produce evidence
that, when viewed in the light most favorable to the defendant, is sufficient to create a
reasonable doubt as to guilt. [CITATION], both citing [CITATION]. “The question of
credibility is not to be considered.” [CITATION], quoting [CITATION].
{¶71} The burden of going forward with evidence is met when evidence, if
true, “would raise a question in the minds of reasonable jurors concerning the
existence of such issue.” [CITATION]. To meet the
burden of production, the defendant must produce evidence that “when viewed in a
light most favorable to the defendant is sufficient to cast a reasonable doubt as to
guilt.” [CITATION].
OHIO FIRST DISTRICT COURT OF APPEALS
{¶72} Once the defendant met this burden of production, former R.C.
2901.05(B)(2) shifted the burden of persuasion to the prosecution. As a result, the
prosecution does not assume the burden of persuasion until the defendant first meets
his or her burden of production. [CITATION] at ¶ 7; [CITATION], 2020-Ohio-5245, at ¶ 7 (1st
Dist.). The prosecution must produce evidence to disprove one of the elements of self-
defense beyond a reasonable doubt. [CITATION] at ¶ 19; [CITATION] at ¶ 7. We review de novo
whether the trial court applied the proper legal standard and whether evidence of self-
defense was sufficient to shift the burden to the prosecution. [CITATION] at ¶ 5.
{¶73} The State only needs to disprove one of the elements of self-defense
beyond a reasonable doubt. [CITATION], 2020-Ohio-4976, at ¶ 51 (1st Dist.). Therefore, in
evaluating a manifest-weight challenge involving self-defense, we must review the
entire record, consider the credibility of the witnesses, and determine whether the trier
of fact lost its way and created a manifest miscarriage of justice with respect to its
finding that the State disproved at least one of the elements of self-defense beyond a
reasonable doubt. [CITATION], 2024-Ohio-1256, at ¶ 255 (1st Dist.); [CITATION] at ¶ 51. Ross
presented evidence that tended to show that he acted in self-defense. So, the burden
of persuasion fell to the State.
{¶74} The State proved beyond a reasonable doubt that Ross did not have a
bona fide belief of imminent danger. This element has both objective and subjective
tests. [CITATION] at ¶ 56. A defendant’s belief that he was in immediate danger of death or
great bodily harm must be objectively reasonable, and the defendant must have an
honest belief that he was in danger. [CITATION], ¶ 43 (1st Dist.);
[CITATION] at ¶ 56. The state may disprove self-defense by demonstrating that the
defendant’s belief was not objectively reasonable or that he did not have an honest
subjective belief that he faced imminent death or great bodily harm. [CITATION] at ¶ 56.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶75} Ross argues that he was 65 years old and weighed 160 pounds at the
time of the shooting. Tsibouris, on the other hand, was 20 years younger and about
150 pounds heavier, and had a substantial amount of drugs in his system. Ross had
seen the damage that Tsibouris had done to the window by the apartment door to
obtain access only a week before.
{¶76} Ross testified that Tsibouris was agitated. He ignored Ross’s repeated
orders to leave the property. Ross stated that Tsibouris dropped his shoulder and
moved toward Ross, as if to attack him. Tsibouris kept yelling angrily for Otten and
would not take no for an answer. Ross feared for his safety as he felt that he could not
fend off Tsibouris, and therefore, he had no alternative but to raise the gun toward
Tsibouris. Afterward, Ross had no memory of pulling the trigger. He said it all
happened fast.
{¶77} Ross’s argument requires his testimony to be believed. The State
presented Asberry’s testimony, which was directly opposed to Ross’s testimony.
Asberry testified that Tsibouris had been waiting about 15 minutes for Otten to come
down. When he walked to the front door, he did not appear angry or aggressive.
Asberry then asked him what was taking so long, and Tsibouris looked at him and said
that Otten was coming down. Immediately afterward, the door opened, Tsibouris
turned around and he was shot.
{¶78} Asberry stated that Tsibouris’s arms were down by his side when he was
shot and that no conversation with anyone had occurred before he was shot. “There
was no time for that,” he said. He also stated that Tsibouris had not grabbed the
doorknob or tried to get into the building. Additionally, Otten had testified that Ross
went downstairs to see who was knocking, she heard Ross say, “Who is it?” and then
she heard a gunshot.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶79} Further, Dr. Laib, the coroner, testified that there was a muzzle imprint
on Tsibouris’s forehead that meant that the murder weapon had been pressed firmly
and forcefully against the skin when it was fired. She found soot and gunpower deep
within the wound, dispelling Ross’s claim that he shot Tsibouris after he lunged at him.
{¶80} Even though Tsibouris was bigger and younger than Ross, he was
unarmed. He was not there to find Ross, but instead he wished to speak to Otten.
After the shooting, Ross fled the scene, and when he spoke to police, he repeatedly lied
to them, undercutting his claim that he feared for his life. Even if Ross had a subjective
belief that he was in imminent danger, a reasonable trier of fact could have determined
that that belief was not objectively reasonable.
{¶81} Viewing the evidence in a light most favorable to the prosecution, the
jury could have reasonably found that the State disproved the imminent-belief-of-
harm element beyond a reasonable doubt. See [CITATION], at ¶ 50 (1st
Dist.); [CITATION]. The jury could have believed the
State’s evidence and disbelieved Ross’s testimony. Matters as to the credibility of
evidence are for the trier of fact to decide. [CITATION]. Consequently, we overrule Ross’s fifth assignment of error.
VI. Summary
{¶82} In sum, we hold that Ross was not denied the effective assistance of
counsel, the trial court did not err in failing to give a limiting instruction on the
character evidence, Ross’s speedy-trial rights were not violated, and the state
disproved one of the elements of his self-defense claim. Consequently, we overrule his
five assignments of error and affirm the trial court’s judgments.
Judgments affirmed.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230646
TRIAL NO. B-2303846
Plaintiff-Appellee, :
O P I N I O N.
vs. :
DARREN CLARKE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 2, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
[SEGMENT 6]
BOCK, Presiding Judge.
{¶1} Roughly 30 minutes after R.W. and defendant-appellant Darren Clarke
engaged in an altercation that left Clarke dazed on the ground, Clarke re-ignited the
altercation and attacked R.W. Following a bench trial, the trial court convicted Clarke
of felonious assault. On appeal, Clarke argues that his conviction is against the
manifest weight of the evidence because he acted in self-defense, or that he attacked
R.W. in a sudden fit of rage. We disagree. First, we hold that a fear of great bodily harm
at the hands of an incapacitated person is objectively unreasonable. Second, kicking
an incapacitated person in the head is excessive force. Third, a 30-minute period after
a fight is a sufficient cooling-off period to dampen any passion or rage.
{¶2} Clarke also contends that he received constitutionally ineffective
assistance of counsel because his attorney failed to present expert testimony of his
mental state. But on direct appeal, Clarke can only speculate about what his
hypothetical expert would explain. Therefore, he cannot show that there is a
reasonable probability that the outcome of his trial would have been different.
{¶3} We overrule both assignments of error and affirm Clarke’s conviction.
I. Facts and Procedure
{¶4} After two late-night fights between Clarke and R.W. near elevators on
the second floor of an apartment building, the state charged Clarke with felonious
assault in violation of R.C. 2903.11(A)(1).
{¶5} At the bench trial, the state built its case primarily around surveillance
footage from inside of the apartment building. A responding officer explained that the
cameras near the elevators captured an initial “altercation” between Clarke and R.W.
inside one elevator at roughly 10:45 p.m. The surveillance footage captured by a
OHIO FIRST DISTRICT COURT OF APPEALS
hallway camera shows Clarke falling out of the elevator onto his back. Then R.W. stood
in the elevator doorway over a visibly dazed Clarke. R.W. shoved Clarke’s legs out of
the elevator and walked to an adjacent elevator. Clarke stumbled and struggled to
maintain his balance as he tried to stand. R.W. left in an elevator as a bystander helped
Clarke to his feet.
{¶6} Roughly 30 minutes later, the footage shows R.W. inside of a different
elevator. As an officer testified, R.W.’s hands were “down to his sides” and relaxed,
nonchalantly tapping a rhythm with his right hand. Clarke exited from a second-floor
apartment and walked to the elevators. An elevator door opened in front of Clarke.
R.W. left the elevator and took two steps into the hallway. Clarke, then face-to-face
with R.W., paused briefly before punching R.W., knocking him to the ground. As R.W.
was motionless on the ground, Clarke, using great force, stomped on R.W.’s head five
times. R.W. continued lying motionless and appeared to be unconscious.
{¶7} Clarke took a five-second break to use his cell phone, and then resumed
his attack. Meanwhile, a resident came out of her apartment nearby and rushed to stop
Clarke. Clarke held off the resident as he swung his leg back and kicked R.W.’s head
three times with enough force to rotate R.W.’s body roughly 45 degrees. R.W. was
initially lying parallel to the elevator doors after the first punch but ended up
perpendicular to the elevators. Clarke continued fending off the resident as he kicked
R.W. in the head two more times with force that caused R.W.’s head to jerk back and
forth. With each kick, blood splattered across the hallway.
{¶8} Five more residents rushed to the scene as Clarke hovered over R.W.
and then stomped on his head one final time. In total, Clarke delivered one punch and
13 kicks to R.W.’s head in 40 seconds. As multiple residents restrained Clarke, several
OHIO FIRST DISTRICT COURT OF APPEALS
others attended to R.W., who was lying in a pool of blood. Three residents checked to
see if R.W. had a pulse.
{¶9} An officer testified that R.W. had to be intubated. When an officer
interviewed R.W. at a physical rehabilitation center, he had no memory of that night.
That officer also interviewed Clarke, who said that his “head still hurt” when he saw
R.W. exit from the elevator and that he was angered by the fact that R.W. failed to
“acknowledg[e] the prior interaction.”
Self-defense and mitigation evidence
{¶10} Clarke raised two arguments in his defense. First, he argued that he
acted in self-defense. Alternatively, Clarke asserted that he acted in a sudden fit of
rage, which mitigated the severity of the offense.
{¶11} In support, Clarke’s friend testified that she was visiting Clarke on the
night of the fights to help Clarke unpack, as he had just moved into his apartment. She
described the first altercation between Clarke and R.W. on the elevator. She explained
that R.W. was “intoxicated,” “F’d up,” and that she “just didn’t like the look on his
face.” While she admitted that she and Clarke had consumed alcohol, she testified that
R.W. “was very intoxicated” and that she “could smell it off of him.”
{¶12} According to Clarke’s friend, R.W. warned Clarke that he was too close
to him in the elevator. She recalled that Clarke asked R.W. what he meant, and R.W.
responded, “I said you too close. * * * [B]ack up. Back the ‘F’ up.” She testified that
Clarke told R.W. to “chill out,” and R.W. threatened to “ ‘F’ [Clarke] up” and Clarke
should “know I kill people out here.” Next, according to the friend, R.W. attacked
Clarke and “just kept hitting him,” so she pushed her way out of the elevator. Clarke’s
friend testified that she called the police, but they never arrived.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Clarke testified that he had “no clue” who R.W. was, or why he attacked
Clarke in the elevator. The only thing he recalled was being hit by R.W.—he had no
recollection of what followed. After the first altercation, Clarke checked on his friend
and then went to a second-floor apartment across from the elevators.
{¶14} Clarke explained that he was attempting to return to his fifth-floor
apartment when the elevator doors opened, and R.W. emerged. He testified that, had
he known that R.W. was on the elevator, he would have used the stairs.
{¶15} According to Clarke, R.W. commented, “What’s up, motherfucker” as he
walked off the elevator, which made Clarke afraid of what R.W. would do next and
believe that R.W. would attack him again. Clarke testified that he was “a tad bit” angry
“but more so worried that I am going to be attacked again.” Clarke was unsure of what
R.W. was going to do, so he “reacted.” He said that he struck R.W. out of fear and to
prevent further injury—Clarke described it as “an out-of-body experience.” Clarke
testified that he continued to kick R.W. because he did not “know [R.W.]. He just
attacked me out of nowhere so I don’t know what he’s capable of.”
{¶16} The trial court found Clarke guilty and explained its rejection of Clarke’s
self-defense and mitigation defenses. Beginning with the first altercation, the trial
court found it “weird” that R.W. walked “over” Clarke and did not touch Clarke in the
hallway. While it noted that Clarke’s and his friend’s testimony was somewhat self-
serving, it found that “something happened in there.”
{¶17} But the trial court found that Clarke was not acting in a sudden fit of
rage because there was not “enough time for him to say what’s up, motherfucker,
before you hit him.” The trial court continued, “And even if he did he’s walking away
from you and it’s a half an hour later. And he walks away from you and you clock him
OHIO FIRST DISTRICT COURT OF APPEALS
and he’s down, but you don’t stop.” And Clarke was “fine walking out of that -- [his]
friend’s [apartment].”
{¶18} The trial court also found that Clarke’s force was excessive. It
emphasized that R.W. was “down and you keep going and you keep going.” Assuming
Clarke “thought he was going to come and get you, whatever, * * * you can’t do what
you did to him. That is not reasonable.”
{¶19} The trial court sentenced Clarke to four-to-six years in prison. Clarke
appeals in two assignments of error, claiming that his conviction was against the
manifest weight of the evidence and that he received ineffective assistance of counsel.
II. Law and Analysis
{¶20} In his first assignment of error, Clarke argues that his felonious-assault
conviction is against the manifest weight of the evidence. First, he maintains that the
state failed to disprove his self-defense claim. The state disagrees and contends that
[SEGMENT 7]
“the video essentially speaks for itself.” Second, he argues that he should have been
convicted of aggravated assault as a lesser offense.
A. Clarke’s fear of harm became unreasonable, and his force was excessive
{¶21} The trial court found that the state disproved Clarke’s self-defense
claim, so we must determine whether that finding is against the manifest weight of the
evidence. [CITATION], ¶ 37. To
do so, we must review “ ‘the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses and determine whether, in
resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
OHIO FIRST DISTRICT COURT OF APPEALS
trial ordered.’ ” [CITATION],
¶ 59, quoting [CITATION].
{¶22} Clarke had the initial burden of producing evidence tending to support
that (1) he did not create the situation leading to the affray; (2) he sincerely believed
he was in imminent danger of great bodily harm or death from which he could escape
only by using force; and (3) he did not violate a duty to retreat. [CITATION]. If Clarke met this initial burden
of production, the burden shifted to the state to disprove any of the self-defense
elements beyond a reasonable doubt. [CITATION] at ¶ 29.
{¶23} To succeed on his self-defense claim, Clarke’s belief that he faced
imminent danger of death or great bodily harm had to be an honest belief, and
objectively reasonable. [CITATION]. And a defendant’s “force must be reasonably proportionate to the threat.” [CITATION]; see [CITATION]; see also [CITATION].
{¶24} It is hard to imagine a viable self-defense claim when the defendant
continues using force after the victim appears to lose consciousness. We have rejected
a defendant’s self-defense claim, in part, because the defendant “continued to strangle
[the victim] after [the victim] had been rendered unconscious.” [CITATION]. It is unreasonable
to fear great bodily harm from a person lying motionless on the ground.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} Moreover, Ohio courts have held that “kicking an unconscious person
in the head is excessive force.” [CITATION]. In [CITATION], the defendant did not act in self-defense when witnesses testified
that the victim “was punched ten times and kicked fifteen more times, all the while
lying helpless and unconscious on the ground.” Id. at ¶ 14. In [CITATION], the defendant
was not acting in self-defense when, according to a witness, he kicked the victim who
was “unconscious on the ground, not moving and not fighting back.” [CITATION] at ¶ 12.
Recently, the Eighth District affirmed a conviction where “video evidence depicted
[the victim] lying on the ground, defenseless and not taking any actions to defend
herself as [the defendant] repeatedly hit her.” [CITATION].
{¶26} Nothing in the surveillance footage suggests that the trial court lost its
way when it rejected Clarke’s self-defense claim. First, R.W. collapsed to the ground
after the initial punch and appeared to lose consciousness. The footage shows Clarke
kicking and stomping on R.W.’s head, taking a short break, and then resuming his
attack. While Clarke testified that he acted out of fear because R.W. might get back up,
Clarke was able to pause his attack and attempt a phone call. Assuming that Clarke
did, in fact, hold a subjective belief that R.W. could retaliate, that R.W. was motionless
on the floor as Clarke used his phone should have dispelled that belief. And like the
defendants in [CITATION], and [CITATION], Clarke used excessive force.
{¶27} The trial court’s findings, and ultimate rejection of Clarke’s self-defense
claim, are consistent with the weight of the evidence.
OHIO FIRST DISTRICT COURT OF APPEALS
B. There was a sufficient cooling-off period to dampen Clarke’s passion and rage
{¶28} Clarke also argues that “he acted in a sudden fit of rage,” which makes
him guilty of aggravated assault, a lesser included offense of felonious assault. A
defendant can be found not guilty of the offense charged, “but guilty of an inferior
degree thereof, or of a lesser included offense.” Crim.R. 31(C); see R.C. 2945.74.
{¶29} The trial court convicted Clarke of felonious assault in violation of R.C.
2903.11(A)(1), which makes it a crime to “knowingly * * * cause serious physical harm
to another.” Unless the victim is a law enforcement officer, felonious assault is a
second-degree felony. R.C. 2903.11(D)(1)(a).
{¶30} As an inferior offense, aggravated assault is a fourth-degree felony and
identical to felonious assault, “except for the additional mitigating element of serious
provocation.” [CITATION], quoting [CITATION]. Specifically, the offender must cause the
physical harm “while under the influence of sudden passion or in a sudden fit of rage,
either of which is brought on by serious provocation occasioned by the victim that is
reasonably sufficient to incite the person into using deadly force.” R.C. 2903.12(A)(1).
This “render[s] the provoked defendant less worthy of blame and subject to less
punishment.” [CITATION]. But “the defendant must react suddenly”—a provocation defense
is not available when there is a sufficient cooling-off period. Id. at ¶ 48.
{¶31} What constitutes a serious provocation “ ‘is a factual inquiry that
contains both objective and subjective components.’ ” [CITATION], quoting Smith at ¶ 46. Beginning with
OHIO FIRST DISTRICT COURT OF APPEALS
the objective component, a serious provocation is an event “intense enough to cause
an ordinary person to lose control of their emotions, acting out of passion rather than
reason.” Id., citing [CITATION] at ¶ 46. When determining if a provocation was objectively
reasonable, this court “does not consider the defendant’s individual characteristics,
such as short-temperedness.” Id. In [CITATION], we explained that “[p]ast altercations and
past verbal threats do not satisfy the test for sufficient provocation where there is
sufficient time for cooling off.” [CITATION] at ¶ 48. Likewise, “[w]ords alone will not
constitute reasonably sufficient provocation to incite the use of deadly force in most
situations.” Id.
{¶32} Turning to the subjective component, this court must consider both the
defendant’s emotional and mental state and the circumstances surrounding the
incident to determine whether the defendant acted under sudden passion or a fit of
rage. Id. at ¶ 20. A defendant’s “fear alone is insufficient to show that a defendant acted
under a sudden passion or fit of rage.” [CITATION]; see [CITATION] at ¶ 48.
{¶33} Clarke argues that he attacked R.W. in response to R.W.’s initial
unprovoked attack in the elevator and R.W.’s subsequent taunt 30 minutes later.
Clarke argues that the provocation in this case is similar to the evidence of provocation
in [CITATION]. In [CITATION], this court held that an objectively serious provocation
preceded James Rhymer’s killing Thomas Landacre because
Landacre was dating the mother of Rhymer’s child and was a father
figure to that child. * * * Landacre had previously threatened him with
violence, had texted him a picture of his penis, had broken [the mother
of Rhymer’s child]’s car windows, and had tried to kill [Rhymer’s child].
OHIO FIRST DISTRICT COURT OF APPEALS
Landacre showed up to the custody exchange uninvited, extremely
agitated, and under the influence of drugs. Rhymer testified that
Landacre challenged him to a fight in front of [Rhymer’s child], yelling,
“There you are you, you are hiding from me, I found you, little pussy
bitch, come on pussy bitch, let’s do this right now, let’s do this
motherfucker.” Furthermore, Rhymer testified that Landacre pushed
him and tried to grab the firearm from him.
[CITATION] at ¶ 32. While Clarke likens the facts of this case to [CITATION], the victim’s
statements in [CITATION] were highly inflammatory and deeply personal, in contrast to
R.W.’s alleged taunt of “what’s up, motherfucker?”
{¶34} Plus, the trial court questioned whether R.W. made that remark. While
Clarke testified that R.W.’s remark prompted him to attack R.W., the trial court
explained, “I don’t think there’s enough time for him to say what’s up, mother fucker,
before you hit him. I don’t think he could have said that. From the video I don’t think
there’s enough time left for him to say that.” And elsewhere, the trial court questioned
the credibility of Clarke’s testimony. It is well established that this court will presume
[SEGMENT 8]
in a bench trial, the trial court is in the best position to view the witnesses’ manner and
demeanor, account for inconsistencies, and determine witness credibility. [CITATION]. The footage does not
contradict or undermine the trial court’s finding. And absent a taunt, the only fact
supporting Clarke’s provocation theory is the initial fight in the elevator. Ohio courts
have routinely held that “past incidents * * * are not sufficient” to show a serious
provocation. [CITATION].
OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} Finally, Ohio courts have held that “fifteen to twenty minutes after [a]
fight” is a sufficient cooling-off period. See [CITATION]; see also [CITATION] (collecting cases). The trial court appeared to find
that Clarke had sufficient time to cool off after the first fight. Specifically, it explained
that the first fight “couldn’t have been that bad because [Clarke’s friend] left you and
a half hour goes by. So if you’re still pissed off about being assaulted, you don’t call the
police. You don’t look for the police. You stick around and go get some smokes.” The
trial court’s findings are consistent with Ohio law.
{¶36} As the trial court noted, something happened when Clarke first
encountered R.W. in the elevator. We do not doubt that Clarke attacked R.W. in
response. But 30 minutes had passed between that fight and Clarke’s attack, which
was a reasonably sufficient time for Clarke’s passion to cool. We defer to the trial
court’s finding that R.W. did not challenge Clarke when he stepped off the elevator.
We hold that the trial court did not lose its way when it found that Clarke was not
acting in a sudden fit of rage when he attacked R.W.
{¶37} Clarke’s conviction is not against the manifest weight of the evidence.
We overrule Clarke’s first assignment of error.
C. Speculation does not establish ineffective assistance of counsel
{¶38} In his second assignment of error, Clarke claims that his trial attorney
was ineffective in violation of his right to counsel for failing to introduce expert
testimony of his mental state. He argues that his self-defense claim and mitigation
defense both implicate his mental state, and “[a]n expert could have interviewed
OHIO FIRST DISTRICT COURT OF APPEALS
and/or tested Mr. Clarke for how he responds to stress and threats,” which would have
assisted the trial court in considering whether his response to R.W. was reasonable.
{¶39} To establish an ineffective-assistance-of-counsel claim, Clarke must
show that his attorney’s “performance was deficient and that the deficient
performance prejudiced the accused.” [CITATION], 2021-Ohio-1693, ¶ 65, quoting [CITATION], 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that his attorney’s performance was
deficient, he must “show his lawyer’s performance fell below an objective standard of
reasonable representation.” [CITATION], 2010-
Ohio-5240, ¶ 25, citing [CITATION] at paragraph two of the syllabus. To show prejudice,
he must demonstrate that “there is a reasonable probability that the outcome of the
proceedings would have been different but for the complained-of conduct.” [CITATION] at
¶ 65, citing [CITATION] at 694.
{¶40} As Clarke points out, typically “the decision not to call an expert witness
does not constitute ineffective assistance of counsel because that decision is solely a
matter of trial strategy.” [CITATION] at ¶ 66, citing [CITATION], 544 N.E.2d 622 (1989). Yet, Clarke argues that his attorney “failed to put on
any expert evidence to establish Mr. Clarke’s state of mind.”
{¶41} Clarke offers little more than speculation about this expert testimony.
And without more, he cannot establish prejudice because when “ ‘[n]othing in the
record indicates what kind of testimony an [expert witness] could have provided,’
resolving the issue of whether counsel was deficient in failing to employ an expert is
‘purely speculative.’ ” [CITATION] at ¶ 26, quoting [CITATION], 721 N.E.2d 52 (2000); see [CITATION],
OHIO FIRST DISTRICT COURT OF APPEALS
[CITATION]; see also [CITATION].
{¶42} Still more, we have held that speculative assertions about the substance
of hypothetical expert testimony cannot establish prejudice. See [CITATION], at ¶ 65. Clarke’s arguments are ill-suited
for an ineffective-assistance claim raised on direct appeal because there is no evidence
in the record related to his mental state and he cannot offer anything more than mere
speculation.
{¶43} Since mere speculation does not establish an ineffective-assistance
claim, we overrule Clarke’s second assignment of error.
III. Conclusion
{¶44} We overrule Clarke’s assignments of error and affirm his conviction.
Judgment affirmed.
BERGERON and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113455
v. :
TAWANN SMITH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 25, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-681060-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mason P. McCarthy, Assistant Prosecuting
Attorney, for appellee.
Patituce & Associates, Joseph C. Patituce, and Megan M.
Patituce, for appellant.
SEAN C. GALLAGHER, J.:
Tawann Smith appeals his conviction for felonious assault along with
two attendant firearm specifications. The conviction arose from his shooting the
victim during a fistfight between the victim and Smith and his brother. Smith was sentenced to three-year terms of imprisonment on each of the two firearm
specifications, which are consecutive to each other, and the indefinite two-to-three-
year term imposed on the felonious assault conviction.1 This timely appeal followed.
On the day of the shooting, recorded from multiple angles by security
cameras installed inside the gas station in which the incident took place, the victim
was at the counter buying various sundries. A line formed behind him with Smith
entering while the victim was finishing the transaction. The line ended at the store’s
entrance. The victim testified he saw Smith enter but paid him no mind. The two
were once friends. A falling out occurred about a year before the shooting over the
victim contacting Smith’s girlfriend. As the victim exited the store, he had to pass
Smith. The video does not depict any obvious physical contact between the two at
that time, but the victim thought he may have stepped on Smith’s foot under the
camera’s viewing angle. Smith immediately turned and took at least two steps
toward the victim, who had exited the store and had his back toward Smith at the
time. After a brief, albeit animated, discussion, Smith aggressively pushed the
victim and they both began shoving and wrestling with each other. Other patrons
cleared the area. Smith admitted to starting the fight by pushing the victim,
although he claimed the victim was verbally aggressive. Shortly after the two were
Smith turned down the State’s plea offer to dismiss the firearm specifications and
plead guilty to a single count of felonious assault in favor of relying on the claim of self-
defense at trial. Imposing sentences on two of the firearm specifications, one of which
was attendant to a merged offense, is required under the combined application of R.C.
2929.14(B)(1)(g) and [CITATION]. Smith was advised of this fact
during the pretrial proceedings. The provided text does not contain any court ruling citations. Therefore, no replacements are needed. Here is the text preserved as it is:
entangled in an upright wrestling match inside the store, with the victim being
pinned up against a cooler, Smith’s brother joined in and punched the victim in the
back of the head. Smith’s brother had seen the fight and came to help Smith, but he
did not see how it started.
Smith, who was armed, dropped his handgun during the initial stage
of the fight. When his brother stepped in and started fighting with the victim, Smith
picked up the handgun and fired at the victim as he was engaged with Smith’s
brother. The victim was wounded in the stomach. The responding officer found the
victim with his intestine hanging out and administered emergency aid until the
ambulance arrived. He survived, but a significant incision from chest to navel was
needed to repair the damage caused by the bullet. The victim was unarmed at the
time of the fight, a fact that Smith retrospectively conceded in his trial testimony.
At trial, Smith presented text messages from the victim that were sent
[SEGMENT 9]
eight months before the shooting, around the time the falling out between the two
occurred. In those messages, which only included the victim’s side of the messaging,
several comments were made about the two fighting to resolve their dispute.
Although there was mention of a firearm, Smith testified to not understanding that
specific statement at trial. There appears to have been no contact between the two
until the shooting.
Smith claimed that as soon as he saw the victim in the gas station, he
was in fear for his life in light of the earlier texted threats. He nonetheless remained
in the store while the victim was finalizing his purchase. According to Smith, the victim “shoulder swiped” him as he passed and then stepped on his foot. Smith
advanced toward the victim to inquire into the perceived slight. The victim had
already exited by that point and was standing outside the store with the door still
open. Smith claims the victim was verbally aggressive and said that they should both
put their weapons down to fight — the victim unremarkably denied saying anything
to that effect. After that brief “discussion,” Smith pushed the victim, claiming to do
so to create personal space. That act nonetheless started the fistfight. Smith thought
the victim was attempting to grab Smith’s concealed firearm while the two wrestled
against the store’s cooler. He stated in response to being asked why he fired the
shot: “[b]ecause I feel like if I would have still continued to fight, he could have got
my gun and killed me and my family [(who were in the car parked at one of the fuel
pumps)].” Thus, to summarize that testimony in context, Smith believed his life was
in danger because in the fistfight he instigated, he believed he would be overpowered
and his concealed handgun turned against him.
The video recording of the fight, as viewed by the jury, demonstrates
that Smith had possession of his handgun at a distance from the victim, who was
then fighting with Smith’s brother at the time the shot was fired. Smith’s brother
and the victim, although wrestling and throwing unaimed punches, did not appear
to be getting the better of the other. After the shooting, the fight ended. Smith and
his brother fled the store. Smith returned to retrieve his hat, which had fallen off
during the tussle. At trial, he claimed to be looking for his car key, which he found
in his pocket. In response to the victim’s question about being shot, Smith said he did so in self-defense. Smith left the scene and called the Garfield Heights Police
Department to explain what had just occurred.
In the sole assignment of error, Smith claims his conviction, entered
following a jury trial, is against the weight of the evidence because he and his
brother’s testimony established that he acted in self-defense.
When evaluating a claim that a jury verdict is against the weight of
the evidence, appellate courts “review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that we must reverse the conviction and order
a new trial.” [CITATION], ¶ 168, citing [CITATION], ¶ 17. Reversing a
conviction based upon the weight of the evidence occurs “‘only in the exceptional
case in which the evidence weighs heavily against the conviction.’” [CITATION] at
387, quoting [CITATION].
In order to disprove the claim of self-defense, the State must present
evidence “‘beyond a reasonable doubt that the defendant: (1) was at fault in creating
the situation giving rise to the affray; (2) did not have reasonable grounds to believe
or an honest belief that he or she was in imminent danger of bodily harm; or
(3) violated a duty to retreat or avoid danger.’” [CITATION], ¶ 25 (1st Dist.), quoting [CITATION], ¶ 11 (1st Dist.). The first
and third elements are straightforward and are applied as written. As to the second element, “‘the test for a bona fide belief of imminent bodily harm is both objective
and subjective: whether the defendant’s belief is objectively reasonable and whether
the defendant subjectively had an honest belief of imminent bodily harm.’” Id. at
¶ 26, quoting [CITATION]
Smith’s argument that the trier of fact lost its way in rejecting his
assertion of self-defense is solely focused on subjective beliefs to the exclusion of the
State’s evidence. It is well settled that “‘a conviction is not against the manifest
weight of the evidence simply because the [trier of fact] rejected the defendant’s
version of the facts and believed the testimony presented by the state.’” [CITATION], quoting [CITATION]; see also [CITATION]. This is because the trier of fact is free
to believe all, some, or none of the evidence presented by the State or defense at trial.
[CITATION]. We cannot conclude that the jury
lost its way.
The State presented evidence that the victim was not armed, much
less brandishing a firearm, at the time of the shooting and was not doing anything
other than engaging with Smith and his brother’s belligerence, which was limited to
fists before Smith used his deadly weapon. Importantly, the video demonstrated,
and Smith conceded, that he started the physical altercation by pushing the victim
at a time when the two were merely engaged in a heated conversation. Moreover, Smith dramatically escalated what had been limited to fisticuffs by shooting the
victim in the stomach.
Inasmuch as Smith relies on the fact that the victim may have stepped
on his shoe or “brushed his shoulder” as evidence that the victim was the initial
aggressor, those acts in and of themselves do not constitute the start of what became
a two-on-one fistfight after Smith aggressively confronted and then pushed the
victim. See [CITATION] (“‘Ohio courts have long
recognized that a person cannot provoke assault or voluntarily enter an encounter
and then claim a right of self-defense.’”), quoting [CITATION]; see also [CITATION] (“Generally, a defendant,
having willingly advanced toward a volatile situation cannot rely on the affirmative
defense of self-defense.”). The video suggests that had Smith not advanced toward
and confronted the victim, no violence would have ensued. The victim was leaving
the store when stopped and confronted by Smith. Having willingly advanced to
engage in physical combat with someone he subjectively claimed possessed a
weapon, Smith cannot rebut the State’s proof that he was anything but the initial
aggressor. See [CITATION]. Regardless, even taking into consideration Smith’s
subjective belief that the two men were armed before Smith initiated the physical
fight, this is best characterized as mutual combat between two armed opponents,
which generally does not support a claim of self-defense. See [CITATION]. And beyond all that, even if Smith’s instigation of the fight were
ignored, Smith escalated the potential lethality of the altercation by using a deadly
weapon in a situation in which the objective evidence did not establish that either
he or his brother were in imminent danger of being severely beaten by the victim.
See, e.g., [CITATION] (conviction for
felonious assault is not against the weight of the evidence because “witnesses
reasonably could conclude defendant . . . in effect escalated a fist fight into a shoot
out” and “exceeded the force he was entitled to use”); see also [CITATION]
(collecting cases establishing that self-defense is
unavailable as a defense where the force used is so disproportionate to the perceived
threat that it demonstrates an unreasonable purpose to injure). The jury was free to
consider Smith’s version of his conduct in comparison to the video evidence
demonstrating that a physical altercation was taking place, but none of the
combatants were taking any actions consistent with putting anyone else in mortal
danger, at least until Smith used the firearm.
A conviction will not be reversed as being against the manifest weight
of the evidence except in an “exceptional case in which the evidence weighs heavily
against the conviction.” [CITATION]. This is not that case. The
primary evidence introduced against Smith was the video recordings of the entire
altercation. The jury was free to draw its own conclusions as to what actually
occurred. [CITATION]. And although there are
arguably some inconsistencies in the State’s evidence, none of the inconsistencies rise to such a level as to impact the overwhelming evidence of Smith’s guilt and all
those inconsistencies were addressed by the State for the jury’s consideration. In
short, the trier of fact was free to reject Smith’s version of events and he has not
demonstrated that in resolving the credibility of the State’s evidence, the trier of fact
clearly lost its way in finding him guilty of felonious assault or the two attendant
firearm specifications.
The conviction is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR As there is no specific text provided under the part of a court ruling, I will provide a general example to illustrate how the replacement should be done, following the rules mentioned. Please provide the actual text to perform the exact replacements if needed.
[SEGMENT 10]
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## Example Court Ruling Text Before Processing ##
"In the case of People v. Whitaker, 2024 IL App (1st) 232009, the court stated that the evidence presented was admissible. This ruling aligns with previous decisions such as Jackson v. Board of Election Commissioners, 2012 IL App (1st) 120348, and the principles discussed in Smith v. Jones. However, in state-v-warth, the circumstances were different, leading to a unique decision.
Moreover, we take into consideration the decision in People v. Deleon, which provides further insight into this matter."
## Example Court Ruling Text After Processing ##
"In the case of [CITATION], the court stated that the evidence presented was admissible. This ruling aligns with previous decisions such as [CITATION], and the principles discussed in [CITATION]. However, in [CITATION], the circumstances were different, leading to a unique decision.
Moreover, we take into consideration the decision in [CITATION], which provides further insight into this matter."
---
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230455
TRIAL NO. 23CRB-9124
Plaintiff-Appellee, :
vs. :
O P I N I O N.
PIERRE BRADFORD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 12, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Ashton Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Pierre Bradford was convicted, after a jury trial, of violating a protection
order. In two assignments of error, Bradford argues that the trial court erred by
permitting other-acts testimony that was irrelevant and prejudicial, and his conviction
was not supported by sufficient evidence and was contrary to the manifest weight of
the evidence.
Factual Background
{¶2} Bradford was charged with violating a protection order that prohibits
him from entering Fanta Spell’s “place of employment,” requires him to not be present
within 500 feet of Spell, and prohibits him from initiating or having contact with Spell
or her places of employment. Bradford pled not guilty and requested a jury trial.
{¶3} Prior to trial, the city filed a notice of intent to introduce other-acts
evidence to show intent, knowledge, and absence of mistake. The city intended to elicit
testimony from Spell regarding Bradford’s criminal conduct that ultimately resulted
in the issuance of the protection order. Bradford filed a motion in limine seeking to
prevent the other-acts testimony. At the hearing on the motion, the city explained that
Spell would testify to the following facts: that Bradford threw urine on her while she
was outside of the streetcar’s office at the streetcar facility. The purpose was to give
the jury context and “make[] it clearer for the jury as to why a protection order was
asked for in the first place.”
{¶4} Bradford argued that the prior conviction was inadmissible and
prejudicial, and had no probative value because Bradford was not challenging the
validity or service of the protection order. Bradford further argued that the factual
findings by the court that issued the order had been redacted, and allowing the witness
OHIO FIRST DISTRICT COURT OF APPEALS
to testify to the underlying facts had no probative value and was highly prejudicial.
{¶5} The court concluded that the testimony should not be analyzed as prior
bad acts because the acts were relevant to the issuance of the order and provided the
jurors with context regarding the issuance of the protection order, and that the
probative value outweighed the prejudice. The court offered to give a limiting
instruction when the evidence was introduced.
Trial Testimony
{¶6} The city’s first witness was Donna Faulks who is employed as a
supervisor for the streetcar. She supervises the streetcar operators and is responsible
for track access. Fanta Spell is a streetcar operator who is under the supervision of
Faulks. Faulks knew that Spell had obtained a protection order against Bradford.
Faulks also knew Bradford from when she was a streetcar operator.
{¶7} On May 29, 2023, Faulks was conducting an external ride evaluation of
Spell who was operating a streetcar. After completing Spell’s evaluation, Faulks was
driving to the next streetcar to complete another external ride evaluation. As she
approached 12th and Vine Streets, she looked to her right and saw Bradford standing
on a streetcar platform. Faulks knew that Spell was operating a streetcar that would
approach that platform in a few stops, so she decided to warn Spell and stop her from
approaching the platform. Faulks, who was driving a marked city of Cincinnati
supervisor vehicle, turned on her hazard and operational lights. Bradford saw her car
and went north on Vine Street. Faulks drove to the streetcar maintenance and
operations facility (“MOF”) at 1927 Race Street and informed her supervisor that she
had seen Bradford. Faulks testified that the streetcar workplace is a 3.5 mile loop with
OHIO FIRST DISTRICT COURT OF APPEALS
18 stops through downtown Cincinnati. The platforms are leased to SORTA by the
city.
{¶8} Fanta Spell testified that she is employed as a streetcar operator.
Bradford objected when the prosecutor asked Spell how she knew Bradford. Prior to
her response, the trial court instructed the jury that the testimony is “being admitted
to provide context as to the issuance of the civil protection order. It is not received
and you may not consider that prior conduct for any other purpose.” Spell testified
that she knew Bradford “from him boarding the streetcar and seeing him outside the
streetcar.” Spell was asked why she filed a petition for a protection order against
Bradford, and over objection, Spell testified, “Because on June 16th of 2022, there was
an assault against me by Mr. Bradford who, outside of my employer, waited for me to
come outside and he proceeded to throw urine on me.” At the time she obtained the
protection order, Spell was a streetcar operator.
{¶9} A side bar discussion occurred, and Bradford objected to the testimony
that he committed an assault. Bradford was charged with assault, but convicted of
menacing. The court instructed the jury to disregard the word “assault.” A redacted
copy of the protection order was admitted into evidence by agreement of the parties.
All of the factual findings were redacted.
{¶10} Spell testified that when she returned to MOF and got off the streetcar,
she learned that Bradford had been at the streetcar platform. When the streetcar stops
at a platform, she is approximately two feet from the platform. Spell further testified
that she had no contact with Bradford that day and did not see him at the 12th and
Vine stop.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Sergeant Linda Sellers, who works for the Cincinnati Police
Department, was working a streetcar detail that day. As she was signing in, she
learned that Bradford had been on the platform. Sellers spoke with Faulks, reviewed
the protection order, went back to the district, and eventually filed charges.
{¶12} Deputy Katie Carrier testified that she ordinarily serves protection
orders at the jail. The court called for a brief side bar, then informed the jury that the
parties stipulated that Bradford was served with the protection order. No further
questions were asked of Carrier.
{¶13} Again the trial recessed briefly, and Bradford requested a mistrial due
to the testimony that Bradford assaulted Spell, which the court overruled. Then
Bradford moved for a judgment of acquittal because Box 13 on the protection order
does not specify that Bradford is prohibited from streetcar platforms. Box 13 provides
a space for the trial court to issue further orders. He further argued that Bradford had
no contact with Spell and did not violate the protection order.
{¶14} The city argued that Bradford violated the provision that states:
“Respondent shall not enter the residence, school, business, place of employment of
the protected party.” The city contended that the streetcar platforms constitute the
place of employment. The court overruled the motion, concluding that the jury should
determine whether the platform “falls within the parameters of the protection order.”
{¶15} Both parties rested and proceeded to closing arguments. The city
argued to the jury that Bradford violated the provision that prohibited him from
entering Spell’s place of employment because the streetcar, the headquarters, and the
platforms are part of the place of employment. The order specifically included “the
buildings, the grounds, and parking lots,” and the platform is part of the grounds.
OHIO FIRST DISTRICT COURT OF APPEALS
Bradford argued that he was prohibited from Spell’s workplace at MOF, but not the
streetcar platforms. The jury found Bradford guilty of violating the protection order
in violation of R.C. 2919.27.
[SEGMENT 11]
{¶16} Bradford appealed, and in two assignments of error, Bradford argues
that the trial court erred by permitting other-acts testimony that was irrelevant and
prejudicial, and his conviction was not supported by sufficient evidence and was
contrary to the manifest weight of the evidence.
Admissibility of Other-Acts Evidence
{¶17} The admissibility of other-acts evidence is a question of law that we
review de novo. [CITATION], ¶ 22.
{¶18} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Similarly, R.C. 2945.59 provides that:
In any criminal case in which the defendant’s motive or intent, the
absence of mistake or accident on his part, or the defendant’s scheme,
plan, or system in doing an act is material, any acts of the defendant
which tend to show his motive or intent, the absence of mistake or
accident on his part, or the defendant’s scheme, plan, or system in doing
the act in question may be proved, whether they are contemporaneous
with or prior or subsequent thereto, notwithstanding that such proof
may show or tend to show the commission of another crime by the
OHIO FIRST DISTRICT COURT OF APPEALS
defendant.
{¶19} Other-acts evidence may not be used to establish a defendant’s
propensity to commit crime or to demonstrate that an accused committed the crime
in question because of her or his proclivity to commit crime in general. [CITATION] at ¶
21. To be admissible, the other-acts evidence must be “probative of a separate,
nonpropensity-based issue” and “must go to a ‘material’ issue that is actually in
dispute between the parties.” Id. at ¶ 22, 27. Thus, this court must analyze whether
the other-acts evidence was (1) “relevant to the particular purpose for which it [was]
offered” and (2) relevant “to a material issue that is actually in dispute between the
parties.” Id. at ¶ 26-27.
{¶20} In this case, the state sought to introduce the facts of the underlying
crime that resulted in the issuance of the protection order. The sole purpose was to
provide the jury with context as to the issuance of the protection order. Bradford
argued that the facts of the underlying conviction were irrelevant because Bradford
was not challenging the validity or service of the protection order, and the underlying
facts were extremely prejudicial.
{¶21} The trial court concluded that the testimony was not other-acts
evidence, was admissible to provide context to the jury about the issuance of the
protection order, and that the probative value outweighed any prejudice.
{¶22} “Context” is not a permissible purpose under Evid.R. 404(B). Other-
acts evidence is admissible when the other acts demonstrate the “setting” of a case and
are part of the “immediate background” of the charged offenses. [CITATION]
OHIO FIRST DISTRICT COURT OF APPEALS
N.E.3d 1043, ¶ 19 (1st Dist.). “However, this theory is limited to those events that are
‘contemporaneous’ with the charged conduct and necessary to add ‘meaning and
context’ to other, relevant testimony.” In re J.P., [CITATION], ¶ 53. Here, the offense that prompted the protection
order occurred in 2022, and was not contemporaneous with the protection-order
violation. See id. Moreover, the validity of the protection order was not a material
issue in the case because Bradford stipulated to the validity and service of the
protection order. Therefore, the trial court erred in admitting the testimony. See id.
at ¶ 55.
{¶23} On appeal, the city further argues that the testimony was admissible to
explain the victim’s state of mind and lack of mistake. Those arguments were not
raised in the trial court and are waived. Moreover, the arguments are without merit
because the victim’s state of mind was not an issue in this case. Spell never saw
Bradford on the platform and was unaware of his presence until after the alleged
violation. Admission for lack of mistake focuses on the defendant’s conduct and
whether the prior acts show that the defendant acted purposefully, rather than
accidentally or mistakenly, in committing the current offense. See [CITATION]. The facts of the initial conviction
were not relevant to Bradford’s violation of the protection order. The sole issue in the
case was the scope of the protection order.
{¶24} Having determined that these statements were improperly admitted, we
must determine what effect, if any, their admission had on the outcome. Because
Bradford objected to these statements, we review for harmless error. [CITATION]. Under this standard, the
OHIO FIRST DISTRICT COURT OF APPEALS
admission of other-acts evidence is harmless when there is no reasonable possibility
that the evidence contributed to the conviction. [CITATION]
{¶25} In [CITATION], the court reversed Fuchs’s conviction for violating a
protection order due to the ineffectiveness of trial counsel. [CITATION] (“State’s Exhibit 4 included unfairly
prejudicial evidence of other acts, and we find that Fuchs’s trial counsel rendered
ineffective representation by failing to object to the admission of the exhibit without
redactions. We find further that the jury’s receipt of the exhibit gives rise to a
reasonable possibility that the outcome of Fuchs’s trial would have been different had
the exhibit not been introduced into evidence, or had it been entered into evidence
only in a redacted form.”). Counsel had stipulated that Fuchs was subject to the
protection order and was properly served. [CITATION] Counsel failed to object to the
admission of state’s Exhibit 4, which was a copy of the protection order and the
magistrate’s decision which included the facts of the underlying offense that prompted
the issuance of the order. [CITATION] The court found:
a reasonable probability that the outcome of Fuchs’s trial would have
been different had State’s Exhibit 4 not been admitted into evidence.
The protection order itself stated that Fuchs had been engaged in a
“pattern of [threatening] conduct,” and the magistrate’s findings of fact
presented the jury with potentially inflammatory descriptions of
Fuchs’s past behavior. Irrespective of the exhibit’s relevance, “evidence
is not admissible if its probative value is substantially outweighed by the
danger of unfair prejudice,” and it “may be excluded if its probative
OHIO FIRST DISTRICT COURT OF APPEALS
value is substantially outweighed” by its redundancy. See Evid.R.
(A)-(B). Here, the magistrate’s findings of fact posed a significant
risk of causing Fuchs unfair prejudice, but even otherwise, the
admission of the exhibit was needlessly cumulative because Fuchs had
stipulated to the validity of the protection order and to his previous
conviction.
[CITATION] at ¶ 17.
{¶26} However, the evidence against Fuchs was contested. One state witness,
who lived next to the protected person, testified that she saw Fuchs driving his truck
in the neighborhood. [CITATION] at ¶ 15. Two other neighbors saw a truck similar to Fuchs’s
truck but did not see the driver. [CITATION]. One of Fuchs’s witnesses testified that Fuchs and
he had been kayaking when the alleged violation occurred, and Fuchs’s mother
testified that his truck was inoperable that day. [CITATION] at ¶ 15.
{¶27} Here, the evidence established that Bradford was on a streetcar
platform. Faulks, who knew Bradford, testified that she saw him standing on the
platform. Bradford argued that the protection order prohibited him from her office
where the initial offense occurred, but did not specify that he was prohibited from the
streetcar platforms. Additionally, the trial court gave a limiting instruction to the jury
when the testimony was elicited informing the jurors that the testimony is “being
admitted to provide context as to the issuance of the civil protection order. It is not
received and you may not consider that prior conduct for any other purpose.”
{¶28} Based on this record, the impact of any error in admitting the testimony
was minimal. Bradford’s substantial rights were not prejudiced because there is no
reasonable possibility that this evidence contributed to his conviction given the other
OHIO FIRST DISTRICT COURT OF APPEALS
evidence presented at trial.
{¶29} We overrule the first assignment of error.
Sufficiency and Manifest Weight
{¶30} Next, Bradford contends that his conviction was not supported by
sufficient evidence and was contrary to the manifest weight of the evidence.
{¶31} In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime had been proved beyond a reasonable doubt. [CITATION], paragraph two of the syllabus.
{¶32} As to the weight of the evidence, “an appellate court must review the
[SEGMENT 12]
entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created a manifest miscarriage of
justice.” [CITATION], ¶ 29, citing [CITATION]. We afford
substantial deference to credibility determinations because the factfinder sees and
hears the witnesses. See [CITATION] at ¶ 30.
{¶33} R.C. 2919.27(A)(1) provides that “[n]o person shall recklessly violate the
terms of * * * [a] protection order issued or consent agreement approved pursuant to
R.C. 2919.26 or 3113.31 of the Revised Code.” R.C. 2901.22(C) provides that “[a]
person acts recklessly when, with heedless indifference to the consequences, the
person disregards a substantial and unjustifiable risk that the person’s conduct is
likely to cause a certain result or is likely to be of a certain nature.”
OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} Here, Bradford was convicted for violating the following term of the
protection order: “1. RESPONDENT SHALL NOT ENTER the residence, school,
business, [or] place of employment * * * of the protected persons named in this Order,
including the buildings, grounds, and parking lots at those locations.”
{¶35} Bradford argues that the evidence was insufficient to establish that the
protection order prohibited him from the streetcar platform. Further, he argues that
the streetcar platforms are owned by the city of Cincinnati and thus are public spaces
which cannot be included in a protection order, that the streetcar operator is inside
the streetcar and shielded from a person on the platform by glass and the streetcar
itself, and at most the protection order encompassed the streetcar operations
headquarters and the streetcars themselves.
{¶36} The plain language of the order prohibits Bradford from entering her
place of employment, which includes the buildings, grounds, and parking lots at those
locations. Spell is employed as a streetcar operator, thus her place of employment
includes the streetcars, and the grounds, which encompasses the platforms. Faulks’s
testimony that she saw Bradford sitting on the platform at 12th and Vine Streets was
sufficient to prove that he violated the protection order.
{¶37} Bradford further argues that the evidence failed to demonstrate beyond
a reasonable doubt that he recklessly violated the civil protection order because he left
the platform before Spell arrived. However, the protection order prohibits Bradford
from entering Spell’s place of employment and does not require Spell to be present.
Viewing the evidence in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime proven beyond a reasonable
doubt. This is not an exceptional case in which the evidence weighs heavily against
OHIO FIRST DISTRICT COURT OF APPEALS
the conviction.
{¶38} Accordingly, we overrule the second assignment of error.
Conclusion
{¶39} Having overruled Bradford’s two assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
WINKLER, J., concurs.
BOCK, P.J., concurs separately.
BOCK, P.J., concurring separately.
{¶40} I agree with the majority that the trial court’s admission of the other-
acts evidence was harmless. I write separately, however, because I believe that this
evidence would have required a reversal had Bradford’s presence on the platform been
disputed.
{¶41} As noted by the majority, the state must establish that the error was
harmless beyond a reasonable doubt. [CITATION], ¶ 15; see Crim.R. 52(A). In reviewing for harmless error, we must “excise
the improper evidence from the record and then look to the remaining evidence.”
[CITATION] at ¶ 29. And a holding that an error was harmless is appropriate only in cases
where there was “either overwhelming evidence of guilt or some other indicia that the
error did not contribute to the conviction.” Id., quoting [CITATION], quoting [CITATION], fn. 5. Of course, an appellate court should be mindful that
we do not “sit as the supreme trier of fact,” and instead are tasked with assessing only
OHIO FIRST DISTRICT COURT OF APPEALS
“the impact of this erroneously admitted testimony on the jury.” [CITATION], quoting [CITATION]
at fn. 5.
{¶42} To convict Bradford of violating the protection order, the state had to
prove that Bradford recklessly entered Spell’s place of employment in violation of the
protection order. Thus, in addition to proving recklessness and that the platform was
part of Spell’s place of employment, the state had to prove identity—that the person
on the platform was Bradford.
{¶43} Having reviewed the evidence at trial, I do not believe that there was
overwhelming evidence that Bradford was on the platform. The only evidence the state
offered to establish that element of the offense was Faulks’s testimony. And Faulks’s
testimony as to how she knew Bradford was vague. Faulks testified that she knew of
Bradford because when she was a streetcar operator, a person whose name she did not
know sat on a dangerous place on the platform. She did not know who that person was
at the time, did not testify that she had ever seen him herself, and did not learn who
he was until “the incident that happened to” Spell. Faulks did not specify which
incident or how she connected the person who had been sitting on the platform to
Bradford. Faulks spotted who she believed was Bradford while she was driving,
through the passenger-side window. According to Faulks, she turned on her hazard
lights and the person she identified as Bradford looked at the car and ran off.
{¶44} The other-acts evidence was prejudicial by its very nature. A person
throwing urine at another person is vile. In terms of proving identity, I do not believe
the state established beyond a reasonable doubt that Spell’s testimony about this
odious act was harmless. See [CITATION] at ¶ 32 (“blatant prejudice may override even a
strong case and require a new trial.”). While Faulks specifically described the clothing
OHIO FIRST DISTRICT COURT OF APPEALS
that the person on the platform wore, she only saw the person on the platform briefly.
Moreover, Faulks did not clearly state how she knew Bradford was the person that had
thrown urine on Spell or how she identified Bradford. The burden of satisfying the
harmless-error standard falls on the state, and the standard is “a standard significantly
more favorable to the defendant.” [CITATION], at ¶ 15, quoting [CITATION]. Had the issue of identity been properly before us, I would be unable to
conclude that the error in this case was harmless.
{¶45} On appeal, however, Bradford did not argue that the state failed to prove
that he was the person standing on the streetcar platform. Instead, Bradford argued
that the platform was not part of Spell’s place of employment and that the state failed
to prove that Bradford acted recklessly. Because I believe that the evidence definitively
established that the streetcar platform was part of Spell’s place of employment and
that Bradford acted recklessly, I do not believe that the result would have changed had
the trial court refused to admit the other-acts evidence.
{¶46} Accordingly, I concur separately in the majority’s opinion.
Please note:
The court has recorded its own entry this date.
[CITATION]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113250
v. :
BEN MARTIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 6, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-664130-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Paul and Kenan Mack, Assistant
Prosecuting Attorneys, for appellee.
Susan J. Moran, for appellant.
SEAN C. GALLAGHER, J.:
Ben Martin was convicted for the murder of Sean Wilkins, which
resulted in a life term of imprisonment with the possibility of parole after 21 years.
Upon our review of the arguments presented and in consideration of the entire record, we cannot conclude that his conviction is against the weight of the evidence.
For the following reasons, we affirm.
Martin and Wilkins were acquainted. Martin was in a relationship,
and had two children, with Wilkins’s cousin, who had four children in all. Wilkins
kept tools, a trailer, and scrap metal at his cousin’s house and regularly stopped by
early in the morning before he started work for the day.
A couple of weeks before the murder, Martin gave Wilkins $200 to
purchase THC-infused butter from a third party. Wilkins delivered a tub, which was
supposed to have contained the product. Martin apparently put the tub in his freezer
without checking its contents. A day before the murder, Martin opened the
[SEGMENT 13]
container and discovered it contained grease, not butter. Martin contacted Wilkins,
through text messaging, demanding his money back. After an extensive back and
forth, Martin threatened Wilkins, telling him they should settle their dispute
through a boxing duel. At one point, Wilkins agreed to take the container back and
give Martin half of the $200. Martin refused.
Wilkins spent the day before his death fixing a vehicle with his
brother. Around seven o’clock in the evening, the night before his murder, they
parted ways to go home. Wilkins’s girlfriend testified that he was at home the
evening before his murder and did not leave until the early morning when Wilkins’s
brother picked him up to begin their day of work.
Around five o’clock the next morning, Wilkins and his brother went
to the cousin’s home to pick up some tools he had left on the porch. Wilkins also intended to leave $200 to settle the disagreement with Martin. According to
Wilkins’s brother, he intended to leave the money in the side window of the house
after finding the front door locked. It was when Wilkins was standing by that
window that Martin shot Wilkins in the back from the roof of the house, which was
accessible through a bedroom window.
According to Martin, his testimony being the only evidence presented
in his defense, when he and Wilkins talked on the phone the day before, Wilkins said
he was going to kill Martin after Martin suggested that they resort to fighting to
resolve the dispute. Wilkins’s cousin supposedly told Martin to take that threat
seriously, but why that was so has never been explained. Later in the afternoon,
Martin drove around to try and find Wilkins in an effort to ease the tension. At one
point, Martin went to an area where an unrelated drive-by shooting occurred.
Martin’s friend was killed in that shooting. There is no evidence identifying the
shooter or the motive, but Martin believed that he was the intended target, claiming
to have been grazed by two or three bullets on his fingers and ankle. When officers
interviewed Martin immediately after Wilkins’s murder, Martin showed the officers
what they described as being minor scratches that did not appear to be bullet
wounds. Martin believed that Wilkins was involved in the shooting and was chasing
him the entire night in several vehicles, none of which appeared to be vehicles that
Wilkins owned.
Still according to Martin, after evading Wilkins’s pursuit all night, he
entered the cousin’s house through the side window, on the alley-side of the house, a half hour before the shooting; Wilkins’s cousin told officers that Martin arrived a
couple of hours before the shooting. The front door faced the main street, and the
side window faced the public alley. Martin claimed he did this because he was afraid
Wilkins would see him enter the front door. The window Martin used appears to be
the same window where Wilkins was shot.
Around six o’clock in the morning, Martin heard the dog barking,
drawing his attention to a car driving in or near the public alley that runs along the
side of the house. Martin believed that Wilkins was going to enter the home to harm
the cousin and her children and to try to kill him. He never explained why he
believed Wilkins would target his cousin or her children. According to Martin, there
was no trailer or any reason for Wilkins to be near the house on the day of the
murder, so to him the activity was suspicious. It was then Martin climbed on the
roof behind the house overlooking the public alley. It was still dark, but he saw a
figure he identified as Wilkins, standing by the window on the exterior wall abutting
the public alley. Martin fired several shots at Wilkins, hitting him in the back and
under the arm. Martin conceded that he did not see Wilkins with a weapon or take
any steps to actually enter the house.
Wilkins ran to his brother’s car, and his brother drove him to the
emergency room. He died during surgery.
At trial, Martin claimed he acted in self-defense of himself and others
in the home, arguing that Wilkins intended to kill him or harm his family after
breaking into the house. The trial court, following the bench trial, concluded that the state had disproven at least one of the elements of self-defense beyond a
reasonable doubt and found Martin guilty of murder and having a weapon while
under disability, with all other counts merging. The trial court also imposed two
three-year terms of imprisonment on two firearm specifications attendant to the
murder count and one of the merged offenses.1 This timely appeal followed.
In the sole assignment of error, Martin claims his conviction is against
the weight of the evidence because his testimony conclusively established that he
acted in self-defense.
When evaluating a claim that a jury verdict is against the weight of
the evidence, appellate courts “review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created
such a manifest miscarriage of justice that we must reverse the conviction and order
a new trial.” [CITATION], ¶ 168, citing [CITATION], ¶ 17. Reversing a conviction
based upon the weight of the evidence should occur “‘only in the exceptional case in
which the evidence weighs heavily against the conviction.’” [CITATION] at 387,
quoting [CITATION].
1 Imposing sentences on two of the firearm specifications, one of which was
attendant to a merged offense, is required under the combined application of R.C.
2929.14(B)(1)(g) and [CITATION].
====== In order to disprove the claim of self-defense, the state must present
evidence “‘beyond a reasonable doubt that the defendant: (1) was at fault in creating
the situation giving rise to the affray; (2) did not have reasonable grounds to believe
or an honest belief that he or she was in imminent danger of bodily harm; or (3)
violated a duty to retreat or avoid danger.’” [CITATION], quoting [CITATION]. Id. at ¶ 11. “The test for a bona fide belief of
imminent bodily harm is both objective and subjective: whether the defendant’s
belief is objectively reasonable and whether the defendant subjectively had an
honest belief of imminent bodily harm.” Id., quoting [CITATION].
The trial court, in rendering its verdict, relied on the state’s evidence
demonstrating that Martin did not have an objectively reasonable belief that he was
in imminent danger of bodily harm. According to the court, there was no evidence
that Wilkins was attempting to enter the home, or that he was even armed, and
Martin could have taken other actions besides shooting Wilkins from behind as he
stood in the public alley. See, e.g., [CITATION], ¶ 58 (video evidence demonstrated that the defendant shot the
victim as she was running away, and therefore, the jury did not lose its way in
concluding that the defendant’s action was unreasonable). Martin testified that he
did not know whether Wilkins had a weapon, but he just assumed he did because,
according to him, he believed that Wilkins was generally armed. Martin’s argument that the trier of fact lost its way in rejecting his
assertion of self-defense is solely focused on his evidence to the exclusion of the
state’s evidence. It is well settled that “‘a conviction is not against the manifest
weight of the evidence simply because the [trier of fact] rejected the defendant’s
version of the facts and believed the testimony presented by the state.’” [CITATION]; see also [CITATION]. We cannot conclude that the trier
of fact lost its way.
Initially, we agree that Martin’s evidence, his own testimony,
demonstrated an arguable basis to assert self-defense, which is why the trial court
considered the question of self-defense and the state’s applicable burden of proof.2
The state, however, presented evidence that Wilkins was not armed or brandishing
At oral argument, Martin referenced [CITATION], in support of his manifest-weight challenge. Palmer focused on the question
whether the appellate court erred in affirming the trial court’s decision to omit the self-
defense jury instruction at trial, a question not implicated by the procedural history of
this appeal. Id. at ¶ 1. Palmer has no bearing on appellate review of the weight of the
evidence in support of the self-defense claim. Id. at ¶ 22 (“[T]he trial court’s attitude was
unreasonable because the court looked at the persuasiveness of the evidence presented
rather than the adequacy of the evidence presented.”). Palmer thus clarified that the
question whether to give the jury instruction must be made solely in consideration of the
adequacy of the evidence presented and “not its persuasiveness,” which is the sole issue
in a manifest-weight challenge. See id. at ¶ 21. Palmer is not applicable to the sole
argument presented. a firearm at the time of the murder, was not actively attempting to enter his cousin’s
house, and had his back toward Martin when Martin began shooting from a
concealed position on the roof of the house. See, e.g., [CITATION] (defendant’s claim of self-defense
was not credible because the evidence showed the victim was shot in the back of the
head); see also [CITATION] (the
evidence demonstrating that the victims were shot in the back disproved the
defendant’s theory of self-defense). Although there are some inconsistencies in the
state’s evidence, none of the inconsistencies rise to such a level as to impact the
[SEGMENT 14]
overwhelming evidence of Martin’s guilt.
The only evidence supporting the imminent-danger component of the
self-defense claim, i.e., that Wilkins intended to kill Martin, came from Martin’s self-
serving testimony and statements to police officers. The trial court, sitting as the
factfinder, did not lose its way. Martin’s subjective belief that Wilkins intended to
do harm, a belief that was not supported with any other evidence, was not credible.
The evidence presented by the state demonstrated that Martin killed an unarmed
man who was standing in the public alley by shooting him in the back from a
concealed position. Although Wilkins may have been near the window, Martin did
not claim that he was attempting to break into the building at the time of the
shooting. In short, the trier of fact was free to reject Martin’s version of events and
he has not demonstrated that in resolving the credibility of the witnesses, the trier
of fact clearly lost its way in finding Martin guilty of murder.
====== Certainly, I will remove the citations as instructed. However, in this particular part of the court ruling provided, there are no explicit citation references to be replaced with either `[CITATION]` or `[CITATION]`.
Therefore, the original text remains unchanged:
Martin’s conviction for murder along with the two attendant firearm
specifications and the resulting life term of imprisonment with the possibility of
parole after 21 years is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR ```markdown
Lorem ipsum dolor sit amet, consectetur adipiscing elit. In the case of People v. Whitaker, </pre><span class="citation no-link">2024 IL App (1st) 232009</span><pre class="inline">, the court considered the interpretation of recent statutes. Similarly, in State v. Warth, </pre><span class="citation no-link">2021 IL 126802</span><pre class="inline">, commonly referenced as "state-v-warth", crucial evidence was examined. Another similar case, People v. Deleon, </pre><span class="citation no-link">2020 IL App (1st) 181681</span><pre class="inline">, was instrumental in this decision. The recent ruling in Smith v. Jones, 2019 IL 123456 also provided precedents.
```
[CITATION]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29919
:
v. : Trial Court Case No. 2021 CR 02340
:
ALEXIS CARTER : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
...........
OPINION
Rendered on May 17, 2024
...........
JOHNNA M. SHIA, Attorney for Appellant
MATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee
.............
TUCKER, J.
{¶ 1} Alexis Carter appeals from her conviction on two counts of felonious assault
and accompanying firearm specifications.
{¶ 2} Carter contends the trial court erred in its jury instructions on self-defense
and defense of another. She also claims the jury’s rejection of self-defense and defense
of another was against the weight of the evidence. -2-
{¶ 3} We conclude that the trial court accurately instructed the jury and that the
evidence supported a finding that Carter did not act in self-defense or defense of another
when she shot two victims. Accordingly, the trial court’s judgment will be affirmed.
I. Background
{¶ 4} A grand jury indicted Carter on two counts of felonious assault (“serious
physical harm” and “deadly weapon”) for each of two victims. All counts included firearm
specifications. The charges stemmed from a shooting in the parking lot of Sporty’s Tap
Room and Grill in Harrison Township shortly after midnight on July 10, 2021.
{¶ 5} The case proceeded to a jury trial in July 2023. The only real issue was
whether Carter had shot the two victims, Jasmine Patterson and Jasmine Woodard, in
self-defense. Prior to the shooting, the victims had been eating, drinking, and dancing at
Sporty’s with Lesonya Williams and Lea Tyler. Shortly before midnight, Carter arrived at
the bar with her friend Tenisha Maston. Carter and Patterson previously had been
involved in a relationship, but they no longer were.
{¶ 6} Around midnight, the two victims and their friends decided to leave the bar
about the same time that Carter and Maston decided to leave. While exiting the bar,
Carter allegedly pushed Tyler into a door. Carter and Maston proceeded to their vehicle
which was parked next to Patterson’s car. The victims’ group followed Carter and Maston
outside. The events that followed, which led up to and included the shooting, were
disputed at trial.
{¶ 7} The State presented evidence that Carter began cursing, ran up to Williams,
and started “swinging.” For her part, Carter testified that Williams approached her and -3-
spit on her before “mutual combat” ensued. The fight evolved into a melee involving
everyone but Tyler, who did not participate. There was testimony that the fight subsided
before reigniting. In any event, security personnel ultimately used mace to break up the
altercation. Carter testified that she lost her glasses during the fight and could not see
anything after being sprayed with mace. At that point, the fight appeared to have stopped,
at least temporarily, and security left.
{¶ 8} Carter then entered the passenger’s side of Maston’s vehicle. The parties
presented divergent testimony about whether Carter stopped fighting and entered the car
of her own accord or whether Maston effectively forced her into the car. Woodard
continued “yelling and screaming” and approached Maston’s vehicle. Woodard admitted
yelling, “I want to see blood.” She also opened the driver’s side door of Maston’s vehicle
and threw “gravel” or “rocks” inside. Woodard described the “gravel” as “little bitty broken
up pellets.” Eyewitness Mary Hall, who was called by the defense and who contacted
defense counsel shortly before trial, testified that she saw “gravel,” which she described
as “rocks,” being thrown. On redirect examination by defense counsel, she characterized
the rocks as being about the size of a hand. A detective testified that he later observed
“some rocks in there, some gravel.” For her part, Carter testified that she felt a rock hit
her head. Although no car windows were broken, she also stated that she felt shattering
glass hit her head.
{¶ 9} While testifying in her own defense, Carter stated that under the foregoing
circumstances she feared for her life and did not know whether she would make it home
that night. Carter testified that she and Maston were prevented from leaving. Carter stated -4-
that she was being hit with rocks and Maston was being “attacked.” After being hit in the
head with a rock, she became “fed up.” Although still unable to see due to the mace and
the loss of her glasses, she felt around inside Maston’s car and retrieved a loaded
handgun. She stepped out of the car and fired three shots. Carter claimed that she
intended to shoot in the air, but one bullet struck Patterson in the buttocks and one struck
Woodard in the chest. At the time of the shooting, both victims were on the other side of
the car from Carter. Despite the fact that two of her three shots struck Patterson and
Woodard, Carter insisted on cross-examination that she could not see and that her intent
was not to hit anyone.
{¶ 10} In contrast to Carter’s version of events, Williams testified that all fighting
had ceased when Carter fired the handgun. According to Williams, Patterson was bent
over picking up glasses in the parking lot when Carter shot her in the buttocks. Williams
stated that no one was around Carter, who was “by herself.”
{¶ 11} Woodard testified that after throwing gravel in Maston’s car she shut the car
door and helped Patterson pick up a cell phone and keys in the parking lot. She and
Patterson were facing each other and talking as they prepared to walk toward their own
vehicle. At that point, she watched Carter exit Maston’s car, reach over the passenger-
side door, and fire the handgun.
{¶ 12} Patterson similarly testified that she was picking up items in the parking lot,
including a purse, keys, and glasses, when she looked back and saw Carter on the other
side of the car holding a handgun. Patterson testified that she heard Carter say, “man,
[SEGMENT 15]
f**k this,” before firing the weapon three times. Patterson stated that no one was throwing -5-
anything when she and Woodard were shot.
{¶ 13} Tyler also testified that Patterson and Woodard were doing nothing other
than picking up items and proceeding to their own car when Carter shot them. Tyler
watched as Carter “started firing” from the passenger’s side of Maston’s car.
{¶ 14} Finally, eyewitness Hall testified that she did not see where the two victims
were when Carter shot them. She also did not see where Carter was when she fired the
handgun.
{¶ 15} Following the presentation of evidence, the trial court provided the jury with
relatively lengthy instructions on the law of self-defense. Defense counsel objected to the
extent that they deviated in part from standard form Ohio Jury Instruction (OJI) self-
defense instructions. The trial court overruled the objection.
{¶ 16} The jury found Carter guilty on two counts of felonious assault (“serious
physical harm” and “deadly weapon”) with firearm specifications as to each victim.
Following merger of allied offenses, the trial court sentenced Carter on two counts of
felonious assault and two firearm specifications. It imposed concurrent prison terms of
two to three years for the felonious-assault convictions. It imposed three-year prison
terms on each firearm specification and ordered those terms to be served consecutively
to each other and consecutively to the concurrent felonious-assault sentences. The result
was an aggregate prison term of eight to nine years. Carter appealed, advancing two
assignments of error.
II. Analysis
{¶ 17} The first assignment of error states: -6-
The Trial Court abused its discretion when it instructed the jury on
self-defense and defense of another.
{¶ 18} Although the trial court instructed the jury on self-defense and properly
placed the burden on the State to disprove the claim beyond a reasonable doubt, Carter
contends the trial court instructions were “confusing, inconsistent, and improper.”
{¶ 19} Carter first challenges an instruction identifying five alternative ways the
State could disprove self-defense. The instruction stated:
* * * A person is allowed to use deadly force in self-defense. The
State must prove beyond a reasonable doubt that the Defendant, when
using deadly force, did not act in self-defense. To prove that the Defendant’s
use of deadly force was not in self-defense, the State must prove beyond a
reasonable doubt at least one of the following: the Defendant was at fault in
creating a situation giving rise to the shooting; or the Defendant did not have
reasonable grounds to believe that she was in imminent or immediate
danger of death or great bodily harm; or the Defendant did not have a
honest belief, even if mistaken, that she was in imminent danger of death
or great bodily harm; or the Defendant violated a duty to retreat to avoid the
danger; or the Defendant used unreasonable force.
Trial Transcript Vol. II at 427.
{¶ 20} In challenging the foregoing instruction, Carter contends the duty to retreat
has been removed from the elements of self-defense. Therefore, she claims a violation
of that duty should not have been identified as a way to disprove self-defense. Carter -7-
concedes that a jury still may consider the potential for “withdrawal” when a defendant is
the initial aggressor. She maintains, however, that withdrawal by an initial aggressor
involves a different issue than a more general duty to retreat to avoid danger. That being
so, Carter argues that the duty to retreat should not have been mentioned and that
withdrawal should have been addressed in the context of her potentially being an at-fault
initial aggressor.
{¶ 21} Upon review, we find Carter’s argument to be unpersuasive. After
instructing the jury that violation of a duty to retreat was one way to disprove self-defense,
the trial court gave the following additional instruction: “The Defendant had no duty to
retreat before using force in self-defense if the Defendant was in a place in which she
lawfully had the right to be.” [CITATION]. The trial court also instructed the jury: “In
determining whether the Defendant, in using force in self-defense, reasonably believed
that the force was necessary to prevent injury, loss, or risk of life or safety, you may not
consider the possibility of retreat by the Defendant.” [CITATION]. These instructions accurately
stated the law. See R.C. 2901.09(B) and (C).
{¶ 22} Having reviewed the entirety of the trial court’s instructions, which the jury
was presumed to have followed, we have no reason to believe that the jury rejected self-
defense based on a finding that Carter violated a duty to retreat. Notably, the State did
not present evidence or argument suggesting that self-defense was inapplicable because
Carter violated a duty to retreat. The State did not claim Carter lacked a right to be in the
parking lot. Therefore, the trial court’s provision of accurate instructions on the issue,
while perhaps unnecessary given the dearth of evidence that Carter was in the parking -8-
lot unlawfully, was unlikely to have misled or confused the jury. [CITATION]
{¶ 23} With regard to Carter’s argument that the trial court should have instructed
the jury about “withdrawal” in the context of an at-fault, initial-aggressor defendant, that
is precisely what the trial court did. It instructed the jury as follows:
Defendant did not act in self-defense if the State proved beyond a
reasonable doubt that the Defendant was at fault in creating the situation
that resulted in the injury.
The Defendant was at fault if the Defendant was the initial aggressor
and one of the following apply: * * * Defendant did not withdraw from the
situation; [or] the Defendant withdrew from the situation, but did not inform
Jasmine Patterson and/or Jasmine Woodard or reasonably indicate by
words or acts to Jasmine Patterson or Jasmine Wood of her withdrawal.
Id. at 428.
{¶ 24} We see nothing objectionable about the foregoing instruction, which again
was a correct statement of the law. See [CITATION] (“But R.C. 2901.09(C) is not an absolute prohibition on introducing
evidence involving the possibility of retreat. Rather, the statute only prohibits fact finders
from considering evidence involving the possibility of retreat to determine whether the
defendant’s belief that force was necessary was reasonable. Fact finders may, however,
consider retreat evidence to determine who was at fault in creating the situation leading
to the affray.”); [CITATION] -9-
(“While a person no longer has a duty to retreat from a place he or she is lawfully permitted
to be, there is no language in the amended statute to suggest a trier of fact is precluded
from considering whether the defendant was the initial aggressor or whether the
defendant attempted to withdraw from the situation when determining whether the
defendant was at fault in creating the situation giving rise to the affray. The narrow
language of the amended statute does not place on triers of fact express restrictions on
consideration of fault.”); [CITATION] at ¶ 49 (“[A]s a general matter, if a person provokes or
voluntarily enters a fight, that person can revive his or her right to self-defense by
withdrawing from that altercation. It follows that a person generally cannot claim self-
defense if that person provoked or voluntarily entered a fight and did not withdraw from
the altercation.”).
{¶ 25} Carter next challenges an instruction stating: “The Defendant did not act in
self-defense if the State proved beyond a reasonable doubt that the Defendant used more
force than reasonably necessary and the force used was greatly disproportionate to the
apparent danger.” Trial Transcript Vol. II at 429-430. Carter contends this instruction
should not have been presented as a “separate option” to defeat self-defense but rather
“as a consideration as to the second element of self-defense.”
{¶ 26} We are unsure precisely what Carter means, and the cases she cites do not
support the proposition that the trial court erred in giving an instruction regarding the use
of more force than reasonably necessary and force that was greatly disproportionate to
the danger. Carter appears to suggest that the trial court should have broken self-defense
down into only two elements rather than five or even more in the present case. In [CITATION] -10-
v. Nicholson, [CITATION], however, the Ohio
Supreme Court recently approved self-defense instructions quite similar to those given in
Carter’s case. In Nicholson, the trial court’s instructions identified four elements of self-
defense. Id. at ¶ 170. One of the four elements combined the need for the defendant to
have an objectively reasonable belief and a true subjective belief that he was in immediate
danger of death or great bodily harm. The trial court gave the same instructions in Carter’s
case except that it identified five elements of self-defense by instructing on the objectively
reasonable and subjective beliefs separately. In Nicholson, the Ohio Supreme Court
found nothing improper about the trial court dividing self-defense into four elements in its
instructions and requiring the prosecution to disprove only one of them. Id. at ¶ 171. We
reach the same conclusion in Carter’s case, which involved substantially-similar
instructions.
{¶ 27} As in the present case, the trial court in Nicholson also separately instructed
the jury: “If the defendant used more force than reasonably necessary and if the force
[SEGMENT 16]
used is greatly disproportionate to the apparent danger, then the defense of self-defense
is not available.” Id. at ¶ 170. We see nothing improper about the trial court giving a
substantially-similar instruction in Carter’s case. Once again, this instruction was a correct
statement of the law. [CITATION]. It also was pertinent
to the evidence presented.
{¶ 28} In her reply brief, Carter acknowledges that existing standard OJI
instructions may not be “a correct statement of law” due to recent stand-your-ground -11-
legislation and case law concerning a defendant’s use of excessive or disproportionate
force. She also recognizes that “case law supports the independent instructions” given by
the trial court. She reasons, however, that when the trial court’s instructions are “taken
together” they become confusing and unclear. Having thoroughly examined the trial
court’s instructions on self-defense, we reject Carter’s assertion that they were “confusing
at best, if not improper,” and that they deprived her of a fair trial.
{¶ 29} With regard to defense of another (her friend Maston), Carter simply
references the self-defense arguments we rejected above and states: “Likewise, and for
the same reasons, the trial court abused its discretion when it gave the jury instructions
on the same five options that the State had to disprove Carter’s defense of another claim.”
For the same reasons that the trial court did not err in instructing the jury on self-defense,
we conclude that it did not err in providing substantially-similar instructions regarding
defense of another. Accordingly, the first assignment of error is overruled.
{¶ 30} The second assignment of error states:
The Manifest Weight of the Evidence Supported Carter’s Self-Defense
and Defense of Another Claims.
{¶ 31} Carter contends her convictions were against the manifest weight of the
evidence. She argues that the evidence supported a finding that she acted in self-defense
and in defense of Maston. In particular, Carter asserts that she had no duty to retreat,
that she was not at fault, and that she possessed an objectively reasonable and subjective
fear of death or great bodily harm when she shot the victims. Carter contends she was
being verbally threatened with violence, struck with large rocks, and prevented from -12-
leaving when she fired the handgun. Under these circumstances, she asserts that a
finding of no self-defense was against the weight of the evidence.
{¶ 32} When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider witness credibility, and determine whether, in
resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” [CITATION]. A judgment should be reversed as being against the manifest weight of the evidence “only
in the exceptional case in which the evidence weighs heavily against the conviction.”
[CITATION].
{¶ 33} “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find
that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder’s determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” [CITATION]. “The fact
that the evidence is subject to different interpretations does not render the conviction
against the manifest weight of the evidence.” [CITATION].
{¶ 34} With the foregoing standards in mind, we reject Carter’s manifest-weight -13-
challenge predicated on self-defense and defense of another. At a minimum, the jury
reasonably could have concluded that she lacked an objectively reasonable belief that
she or Maston was in imminent danger of death or great bodily harm when she shot the
victims. Carter claimed that she was trapped, helpless, terrified, and blind when she fired
the handgun in response to being verbally threatened and assaulted with large rocks.
{¶ 35} In contrast to Carter’s version of events, the State’s witnesses testified that
all fighting had ceased when Carter fired the handgun. According to Williams, Patterson
was bent over picking up glasses when Carter shot her in the buttocks. Williams testified
that Carter was “by herself.” Woodard similarly testified that she had shut Maston’s car
door after throwing gravel inside the car and that she was helping Patterson pick up
objects. Patterson testified that no one was throwing anything when Carter fired the
handgun. Patterson also heard Carter say, “man, f**k this”, before firing the weapon. Tyler
testified that Patterson and Woodard were doing nothing other than picking up items and
proceeding to their own car when Carter shot them. A video introduced into evidence
depicted Carter pacing back and forth with no one in her immediate vicinity just before
the shooting. After entering the car, she exited again with a firearm, placed herself
between the door and the car’s frame, and fired three shots.
{¶ 36} We note too that the jury certainly could have found aspects of Carter’s
testimony to be not credible. Although she claimed to have feared for her life, she testified
that she was “fed up” when she shot the victims. This testimony suggests anger or
retaliation more than fear. Despite purportedly having been blinded by mace, Carter also
claimed to have felt a loaded weapon with a chambered bullet in Maston’s car. She then -14-
managed to hit the victims with two of the three shots she fired, despite claiming that did
not intend to hit them at all.
{¶ 37} Although the parties disputed what had occurred in the bar and during the
protracted fight in the parking lot, the jury reasonably could have concluded based on the
video evidence and the testimony of the State’s witnesses that Carter and Maston were
not in imminent danger of death or great bodily harm when Carter shot the victims.
Consequently, the jury’s finding of no self-defense and no defense-of-another was
supported by the manifest weight of the evidence.
III. Conclusion
{¶ 38} The judgment of the Montgomery County Common Pleas Court is affirmed.
.............
EPLEY, P.J. and LEWIS, J., concur.
[Cite as [CITATION].]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-23-12
PLAINTIFF-APPELLEE,
v.
ROSSTIN GUY BENDER, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2022-CR-0106
Judgment Affirmed
Date of Decision: May 6, 2024
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips for Appellee Case No. 14-23-12
ZIMMERMAN, J.
{¶1} Defendant-appellant, Rosstin G. Bender (“Bender”), appeals the March
22, 2023 judgment entry of sentence of the Union County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} This case stems from an April 29, 2022 altercation between Bender and
the victim, B.H., during which Bender stabbed B.H. with a knife nine times. On
April 29, 2022, B.H., along with his girlfriend, Faith Selover (“Faith”) and her
brother, Joel Selover (“Joel”), invited Dean Smith (“Smith”), Bender, and Star
Mentzer (“Mentzer”), Bender’s girlfriend, to the residence that the three shared to
“see and enjoy for a campfire” the landscape lighting that they installed in their
backyard. (Feb. 6, 2023 Tr., Vol. II, at 33). During the gathering, “the lights kept
getting kicked over and kicked down, stepped on[, so B.H.] asked several times to
please watch the lights.” (Id. at 37). According to B.H., when he and Bender were
“bickering back and forth about the lights,” Bender discharged a firearm into the
ground. (Id. at 38). Joel testified that he believed that Bender “discharged the gun
into the ground * * * to diffuse the situation.” (Id. at 83).
{¶3} Later, when B.H. returned outside “after using the bathroom[, he saw]
that the lights were kicked over again.” (Id. at 40). Because Mentzer giggled after
B.H. inquired about “who kicked over the lights,” B.H. asked Bender and Mentzer
to “leave” “if they think it’s funny * * * .” (Id.). Instead of leaving, Bender “asked
Case No. 14-23-12
if [B.H.] wanted to fight him” and B.H. agreed. (Id.). According to B.H., Bender
then traversed 15-to-20 feet to reach him. However, before Bender could get to
B.H., Faith “tried to come in the middle between [them] to put her arms out and
separate the distance.” (Id. at 47). Nevertheless, Bender “swung past her” and “hit
[SEGMENT 17]
[B.H.] first.” (Id. at 48). “[T]he last thing [B.H. could] remember is holding Mr.
Bender on top of [him] and [Faith] pulling Bender off of [him] and [Joel] pulling
[B.H.] back off the ground.” (Id. at 49). B.H. did not know that he had been stabbed
until he tried to stand.
{¶4} On May 6, 2022, the Union County Grand Jury indicted Bender on
Counts One and Two of felonious assault in violation of R.C. 2903.11(A)(1),
(D)(1)(a), second-degree felonies, and Count Three of using weapons while
intoxicated in violation of R.C. 2923.15(A), (B), a first-degree misdemeanor. On
May 10, 2022, Bender appeared for arraignment and pleaded not guilty to the counts
alleged in the indictment.
{¶5} On October 4, 2022, Bender filed a notice of self-defense under Crim.R.
12.2 stating that he intended
to present evidence that on April 22, 2022 [sic], the alleged victim *
* * punched [Bender] in the face without justification and used his
forearm to compress [Bender’s] throat while on the ground to the
point he could not breathe; and that [Bender] had reasonable grounds
to believe, and honestly believed, he was imminent or immediate
danger of death or great bodily harm, at the time he defended himself
with a knife.
Case No. 14-23-12
(Doc. No. 44). On October 7, 2022, the State filed a memorandum in opposition to
Bender’s notice of self-defense. That same day, the State filed a motion in limine
requesting that the trial court prevent Bender “from introducing specific instance
[sic] of conduct by the victim in this matter unless and until [Bender] establishes
those instances of conduct are relevant and otherwise admissible to his claim of self-
defense.” (Doc. No. 48).
{¶6} On January 31, 2023, the State filed another motion in limine requesting
that the trial court prevent Bender “from introducing specific instances of conduct
to prove the victim was the initial aggressor in support of his claim of self-defense.”
(Doc. No. 78). On February 6, 2023, Bender filed a memorandum in opposition to
the State’s motion in limine. That same day, Bender requested that the trial court
instruct the jury on self-defense and the inferior-degree offense of aggravated
assault.
{¶7} The case proceeded to a jury trial on February 6-8, 2023. On February
8, 2023, the jury found Bender guilty of the counts alleged in the indictment.
{¶8} On March 22, 2023, the trial court sentenced Bender to a minimum term
of five years in prison to a maximum term of seven and one-half years in prison on
Count One and 180 days in jail on Count Three. (Doc. No. 91). The trial court
ordered that Bender serve the terms concurrently. Further, the trial court merged
Counts One and Two for purposes of sentencing.
Case No. 14-23-12
{¶9} Bender filed his notice of appeal on April 20, 2023. He raises seven
assignments of error for our review. For ease of our discussion, we will begin by
discussing Bender’s first and sixth assignments of error together; followed by his
second assignment of error; then together his third, fourth, and fifth assignments of
error; and finally his seventh assignment of error.
First Assignment of Error
The Jury Lost Its Way When Reviewing The Evidence Presented
For Guilt Contrasted With The Evidence Of Self-Defense,
Resulting In A Verdict That Is Against The Manifest Weight Of
The Evidence.
Sixth Assignment of Error
The Trial Court Erred When It Overruled Appellant’s Motion
For A Criminal Rule 29 Acquital [sic].
{¶10} In his first and sixth assignments of error, Bender argues that his
felonious-assault convictions are based on insufficient evidence and are against the
manifest weight of the evidence. On appeal, Bender does not dispute that the State
proved the elements of felonious assault. Rather, Bender contends that his
felonious-assault convictions are based on insufficient evidence and are against the
manifest weight of the evidence because he “presented evidence by a preponderance
of the evidence that he acted in self-defense, and the State failed to prove beyond a
reasonable doubt that it was not self-defense * * * .” (Appellant’s Brief at 11).
Case No. 14-23-12
Standard of Review
{¶11} Under Crim.R. 29(A), a court “shall order the entry of the judgment
of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a
conviction of such offense or offenses.” Consequently, “[a] motion for acquittal
under Crim.R. 29(A) is governed by the same standard as the one for determining
whether a verdict is supported by sufficient evidence.” [CITATION], ¶ 37.
{¶12} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” [CITATION], paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, [CITATION]. Accordingly,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” [CITATION], ¶ 33.
See also [CITATION], ¶ 19
Case No. 14-23-12
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”).
{¶13} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” [CITATION] at 387,
quoting [CITATION], 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. [CITATION],
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” [CITATION],
quoting [CITATION], 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency of the Evidence
{¶14} As an initial matter, even though Bender challenges the sufficiency
and the weight of the evidence supporting the jury’s finding of guilt as to the
felonious-assault charge under Count Two of the indictment, we need not address
that argument. Accord [CITATION], 3d Dist. Hardin No. 6-18-07, 2019-Ohio-
Case No. 14-23-12
4123, ¶ 11. “Specifically, ‘[w]hen counts in an indictment are allied offenses, and
there is sufficient evidence to support the offense on which the state elects to have
the defendant sentenced, the appellate court need not consider the sufficiency [or
weight] of the evidence on the count that is subject to merger because any error
would be harmless’ beyond a reasonable doubt.” Id., quoting [CITATION].
{¶15} In this case, error, if any, with respect to the sufficiency or weight of
the evidence as to the jury’s finding of guilt as to Bender’s felonious-assault charge
under Count Two is harmless beyond a reasonable doubt because it was merged
with Count One. Accord id. at ¶ 12; [CITATION] at ¶ 13. In other words, Bender was not
convicted of the felonious-assault offense alleged under Count Two because the trial
court merged that offense for purposes of sentencing. Accord [CITATION] at ¶ 12.
Indeed, the Supreme Court of Ohio has explicitly stated that a “conviction” requires
both a finding of guilt and a sentence. [CITATION] at ¶ 16. For these reasons, we need
not address any arguments challenging the sufficiency or weight of the evidence
regarding the jury’s finding of guilt as to Bender’s felonious-assault charge under
[SEGMENT 18]
Count Two. Accord [CITATION] at ¶ 12; [CITATION] at ¶ 13, 18.
{¶16} Therefore, we will begin by addressing Bender’s sufficiency-of-the-
evidence argument as it relates to his felonious-assault conviction under Count One.
On appeal, Bender argues that the trial court erred by denying his Crim.R. 29 motion
because the State failed to prove beyond a reasonable doubt that he did not act in
Case No. 14-23-12
self-defense. Decisively, Bender’s challenge to the sufficiency of the evidence as
to self-defense is inappropriate. Accord [CITATION].
{¶17} Traditionally, “[s]elf-defense is an affirmative defense, and the
accused bears the burden of proving it by a preponderance of the evidence.” [CITATION]
at ¶ 11. “However, effective March 28, 2019, the General Assembly modified
Ohio’s self-defense statute, R.C. 2901.05, to place the burden on the state to prove
beyond a reasonable doubt that the accused did not act in self-defense.” [CITATION] Currently,
“[e]vidence as to all elements of self-defense must be presented at trial in order for
a defendant to be acquitted, but to overcome the claim, the state need only disprove
one element of the defense by proof beyond a reasonable doubt.” Id. at ¶ 31.
“Moreover, any presumption as to the use of force in self-defense ‘may be rebutted
by a preponderance of the evidence, provided that the prosecution’s burden of proof
remains proof beyond a reasonable doubt as described in’ R.C. 2901.05(B)(1).” Id.,
quoting R.C. 2901.05(B)(4).
{¶18} Nevertheless, “there is no due-process right to a presumption of an
affirmative defense such as self-defense.” [CITATION] at ¶ 19. Thus, notwithstanding “the shift in the burden of proof by the
amendment to R.C. 2901.05, the absence of self-defense is not an essential element
Case No. 14-23-12
of any offense that the state carried the burden of proving at trial.” [CITATION] at ¶ 36.
See also [CITATION], 10th Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶
43 (concluding that “there is nothing in the current version of R.C. 2901.05(B)(1)
indicating that by shifting the burden of proof on the affirmative defense of self-
defense, the General Assembly intended to transform the absence of self-defense
into an essential element of a criminal offense”). Consequently, “[Bender’s] claim
of self-defense is not an aspect of a sufficiency of the evidence or Crim.R. 29
analysis, and the trial court did not err [by denying his] Crim.R. 29 motion [in light
of his] self-defense claim.” [CITATION] at ¶ 36. Therefore, we will address Bender’s
self-defense argument only in our analysis of the manifest weight of the evidence.
Id.
Manifest Weight of the Evidence
{¶19} Bender was convicted of felonious assault in violation of R.C.
2903.11(A)(1). R.C. 2903.11 provides, in its relevant part, that “[n]o person shall
knowingly * * * [c]ause serious physical harm to another * * * .” R.C.
2903.11(A)(1). Bender does not dispute that the State proved the elements of that
offense. Rather, Bender argues that the jury lost its way in concluding that he did
not act in self-defense.
{¶20} Under Ohio’s current self-defense statute, “a defendant claiming self-
defense has the burden of production—that is, the burden of producing evidence
that ‘tends to support’ his use of force in defending himself.” [CITATION]
Case No. 14-23-12
[CITATION]. Thus, “if evidence is presented ‘that tends to
support’ that the defendant used the force in self-defense, the prosecution must
prove beyond a reasonable doubt that the accused did not act in self-defense.”
(Emphasis sic.) [CITATION],
¶ 43. “Accordingly, ‘the burden of proof for * * * self-defense has shifted to the
state,’ but ‘the burden of production for * * * self-defense[ ] remains with the
defendant.’” (Emphasis sic.) [CITATION],
¶ 104, quoting [CITATION], at ¶ 44.
{¶21} “Self-defense is an affirmative defense that, if proved, relieves a
defendant of criminal liability for the force that the defendant used.” [CITATION] at ¶
43. “The elements of self-defense differ depending on whether the defendant used
deadly or non-deadly force to defend himself.” [CITATION], at ¶ 15.
Deadly force is “any force that carries a substantial risk that it will proximately
result in the death of any person.” R.C. 2901.01(A)(2). A “substantial risk” is “a
strong possibility, as contrasted with a remote or significant possibility, that a
certain result may occur or that certain circumstances may exist.” R.C.
2901.01(A)(8). In most situations, “stabbing a victim (or victims) with a knife
constitutes the use of deadly force.” [CITATION],
¶ 15.
To establish self-defense through the use of deadly force, an accused
must prove: “(1) the accused was not at fault in creating the situation
giving rise to the affray; (2) the accused had a bona fide belief that he
Case No. 14-23-12
or she was in imminent danger of death or great bodily harm and that
the only means of escape from such danger was in the use of force;
and (3) the accused must not have violated any duty to retreat or to
avoid the danger.”
[CITATION] at ¶ 16, quoting [CITATION], ¶ 14. Generally, “a person is privileged only to ‘use as much force as is
reasonably necessary to repel [an] attack.’” [CITATION], quoting [CITATION], ¶ 61.
{¶22} “[T]he State must ‘disprove at least one of the elements of self-defense
beyond a reasonable doubt.’” [CITATION], ¶ 29, quoting [CITATION], ¶ 31. “‘The elements of self-defense are cumulative, and a
defendant’s claim of self-defense fails if any one of the elements is not present.’”
Id., quoting [CITATION], ¶ 15.
{¶23} On appeal, Bender contends that the evidence that he presented at trial
that he acted in self-defense is weightier than the evidence presented by the State
that he did not. In support of this argument, Bender points to the inconsistencies of
B.H.’s, Joel’s, and Faith’s testimonies. Specifically, Bender contends that “the
State’s evidence regarding the logistics of the fight is contrary to [findings of the
emergency room doctor who B.H.], creating doubt on the credibility of its witnesses
Case No. 14-23-12
in their entirety.” (Appellant’s Brief at 5). That is, Bender contends that “the
placement of [B.H.’s] wounds is consistent with [B.H.] being on top of Mr. Bender
and Mr. Bender doing whatever he could to get [B.H.] off of him because he was
being choked.” (Id. at 11). Consequently, Bender argues that the weight of the
evidence supports that he acted in self-defense. In other words, Bender contends
that his version of the incident is more credible than B.H.’s, Joel’s, and Faith’s
version.
{¶24} “Although we review credibility when considering the manifest
weight of the evidence, the credibility of witnesses is primarily a determination for
the trier of fact.” [CITATION], ¶ 13, citing [CITATION], at paragraph one of the syllabus. “The trier
of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]
and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’” Id., quoting [CITATION], ¶ 24, citing [CITATION].
{¶25} Notwithstanding Bender’s contention that B.H.’s, Joel’s, and Faith’s
testimonies conflict with the medical evidence, “we are mindful of the jury’s
‘superior first-hand perspective in judging the demeanor and credibility of
witnesses.’” [CITATION], ¶ 33,
quoting [CITATION], ¶ 125.
Case No. 14-23-12
Critically, it is well within the province of the trier-of-fact to determine the
credibility of B.H.’s, Joel’s, Faith’s, and Bender’s testimonies, including the
prerogative to find Bender’s version of events not to be truthful. Accord [CITATION]. Indeed, the trier of
fact was free to believe or disbelieve B.H.’s, Joel’s, and Faith’s testimonies (or
[SEGMENT 19]
Bender’s testimony) or accept part of what B.H., Joel, Faith, and Bender said and
reject the rest. Accord id.
{¶26} Even so, notwithstanding Bender’s contention that the weight of the
evidence suggests that he acted in self-defense because the medical evidence
supports his version of events, the balance of the State’s evidence weighs against
Bender’s self-defense claim. In other words, the weight of the evidence reflects that
Bender was at least partially at fault in creating the situation giving rise to the affray.
Indeed, the evidence reflects that Bender voluntarily entered into the fight with B.H.
by inviting B.H. to fight. The record further reflects that Bender exceeded the force
reasonably necessary for self-defense during the fight. See [CITATION] (concluding “that Martin voluntarily
entered the encounter by proceeding to the police station parking lot and that he
exceeded the force reasonably necessary for self-defense by using a deadly
weapon”).
{¶27} To begin with, Bender bore the initial burden of production under the
first element of a self-defense claim to demonstrate that he was not at fault for
Case No. 14-23-12
creating the violent situation. Accord [CITATION]. “[T]he first element of a self-defense claim provides
that the defendant must not be at fault in creating the situation that gave rise to the
affray.” [CITATION]. See also [CITATION] (“‘Ohio courts have long recognized that a person cannot provoke [an] assault or
voluntarily enter an encounter and then claim a right of self-defense.’”), quoting
[CITATION]. “This concept is broader than simply not being the immediate aggressor.”
[CITATION]. “A person may not provoke an assault or voluntarily enter an
encounter and then claim a right of self-defense.” Id. “Ohio courts have long
recognized that a defendant is at fault in creating the situation giving rise to the
affray when the defendant chooses to confront the victim or knowingly go to a place
where the victim will be, even when the defendant’s action was otherwise
completely lawful.” Id. at ¶ 15.
{¶28} In this case, the State presented the testimony of B.H. and Faith, who
testified that Bender was the initial aggressor and that he voluntarily entered into
the fight with B.H. by inviting B.H. to fight. Accord [CITATION] (specifying that “[b]oth of the
state’s witnesses contradicted appellant’s version, testifying Barnett and appellant
willingly met up in the middle of the street and [the appellant] began to throw
Case No. 14-23-12
punches”). See also [CITATION] at ¶ 15 (“Even if [the victim] grabbed appellant by the
neck and pushed her against the house and, under appellant’s version, appellant did
not throw the first punch, the trial court did not err in finding that appellant was at
fault in creating the situation.”).
{¶29} At trial, B.H. testified that, after he asked Bender and Mentzer to leave,
Bender responded by asking him if he “wanted to fight him.” (Feb. 6, 2023 Tr.,
Vol. II, at 40). B.H. further testified that, after he agreed to fight Bender, Bender
traversed 15-to-20 feet to reach him, then “swung past” Faith (who was trying to
intercede) and struck B.H. first. (Id. at 48). Faith likewise testified that, after B.H.
asked Bender and Mentzer to leave, Bender “asked [B.H.] if he wanted to fight.”
(Id. at 127). According to Faith, Bender “punched [B.H.] in the face,” then B.H.
“punched him back.” (Id. at 130).
{¶30} Moreover, even though Bender denied that he threw the first punch,
Bender’s own testimony suggests that he was at least partially at fault for creating
the situation giving rise to the affray. Accord [CITATION] at ¶ 85; [CITATION]
11th Dist. Trumbull Nos. 2002-T-0115 and 2002-T-0116, 2003-Ohio-6762, ¶ 30-31
(concluding that the defendant could not claim self-defense because “his testimony
demonstrated that he was at least partially at fault for creating the situation giving
rise to the affray”). That is, Bender testified that he voluntarily entered the
encounter with B.H. See [CITATION], 2d Dist. Greene No. 2019-CA-19,
2020-Ohio-3681, ¶ 40.
Case No. 14-23-12
{¶31} Nevertheless, the weight of the evidence presented at trial reflects that
Bender did not have a bona fide belief that he was imminent danger of death or great
bodily harm and that this only means of escape from such danger was the use of
force a required by the second element of a self-defense claim. Under the second
element of self-defense, “[t]he person’s belief must be objectively reasonable under
the circumstances and he must subjectively believe he needed to resort to force to
defend himself.” [CITATION], ¶
54. Specifically, “‘[t]he objective part of the test requires consideration of “whether,
considering all of the defendant’s particular characteristics, knowledge, or lack of
knowledge, circumstances, history, and conditions at the time of the attack,” a
reasonable person would believe that danger was imminent.’” Id., quoting [CITATION], ¶ 30, quoting [CITATION], ¶ 23.
“The subjective part requires consideration of whether the defendant himself
actually believed that he was in imminent danger.” Id.
{¶32} Importantly, under the second element of a self-defense claim “a
defendant must show that ‘that the degree of force used was “warranted” under the
circumstances and “proportionate” to the perceived threat.’” Id. at ¶ 55, quoting
[CITATION], ¶ 31. “‘If * * * the amount of force used is so disproportionate that
it shows an “unreasonable purpose to injure,” the defense of self-defense is
unavailable.’” Id., quoting [CITATION], 2011-
Case No. 14-23-12
Ohio-87, ¶ 27, quoting [CITATION].
{¶33} In this case, the weight of the evidence presented at trial demonstrates
that Bender’s use of deadly force was not “reasonably necessary and proportionate
to the apparent danger.” [CITATION]. Critically, Bender “brought a knife to a fist fight and seriously
injured” B.H. [CITATION]. Specifically, the evidence reflects that Bender and B.H. “met with the intention
of engaging in a fist fight.” [CITATION] (resolving that “it was
within the province of the jury to credit the testimony of the state’s witnesses that
Barnett and appellant met with the intention of engaging in a fist fight”). Indeed,
there was no evidence presented that B.H. wielded a weapon during the altercation.
{¶34} Certainly, under the facts presented, it was within the province of the
jury to credit the testimonies offered by the State’s witnesses that Bender did not
have “reasonable grounds for believing there was an imminent threat of death or
serious bodily harm.” [CITATION]. Consequently, the evidence presented reflects
that Bender “used deadly force when he was not faced with deadly force” and that
“[t]he degree of force used by [Bender] was neither warranted under the
circumstances nor proportionate to the perceived threat.” [CITATION].
Case No. 14-23-12
{¶35} Therefore, based on our review of the record, we conclude that the
trier of fact did not lose its way by concluding that Bender did not act in self-defense.
“The jury heard all of the testimony, considered the evidence, and found the state’s
witnesses credible, and we will not disturb the jury’s verdict on appeal.” [CITATION]
Importantly, “[t]he jury did not lose its way simply because it believed the
prosecution testimony and disbelieved appellant’s account.” [CITATION] Accordingly,
weighing the evidence and all reasonable inferences, and considering the credibility
of witnesses, we conclude the jury did not clearly lose its way and create such a
manifest miscarriage of justice that Bender’s felonious-assault conviction must be
reversed and a new trial ordered. Thus, Bender’s felonious-assault conviction under
Count One is not against the manifest weight of the evidence.
{¶36} Bender’s first and sixth assignments of error are overruled.
Second Assignment of Error
The Trial Court Erred When It Failed To Grant A Mistrial First
After The Jury Was Tainted By Inaccurate Statements Made By
The Prosecutor Regarding Appellant’s Attempt To Invoke The
Fifth Amendment When He Was On The Stand And Second
When The Prosecutor Improperly Commented On Appellant’s
Pre-Arrest Silence.
{¶37} In his second assignment of error, Bender argues that the trial court
erred by failing to declare a mistrial based on prosecutorial misconduct.
Specifically, Bender argues that the prosecutor improperly “commented on * * *
Mr. Bender invoking his Fifth Amendment right not to incriminate himself, then
[SEGMENT 20]
Case No. 14-23-12
minutes later commenting on Mr. Bender’s pre-arrest silence.” (Appellant’s Brief
at 12).
Standard of Review
{¶38} “‘A mistrial should not be ordered in a cause simply because some
error has intervened. The error must prejudicially affect the merits of the case and
the substantial rights of one or both of the parties.’” [CITATION], ¶ 18, quoting
[CITATION]. “Notably, mistrials are appropriate
only when the ends of justice so require and a fair trial is no longer possible.” [CITATION], ¶ 61.
{¶39} “Because it rests within the sound discretion of the court, we review a
trial court’s grant or denial of a motion for a mistrial for an abuse of discretion.”
[CITATION], ¶ 44. An
abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. [CITATION].
Analysis
{¶40} In this case, Bender moved for a mistrial based on alleged improper
statements made by the prosecutor at trial. “When a defendant moves for a mistrial
based on prosecutorial misconduct, the trial court must determine whether ‘the
prosecutor’s actions were improper, and, if so, whether the defendant’s substantial
rights were actually prejudiced.’” [CITATION],
Case No. 14-23-12
2023-Ohio-2863, ¶ 24, quoting [CITATION]. Thus, “‘[w]hen the grounds for a mistrial are based on
prosecutorial misconduct, the defendant must show that the alleged misconduct
deprived him of a fair trial.’” [CITATION], ¶ 40, quoting [CITATION], 1998 WL 156865, *3 (Mar. 20, 1998). “‘The defendant must show that, but
for the prosecutor’s misconduct, the trier of fact would not have convicted him.’”
[CITATION] at ¶ 24, quoting [CITATION] at ¶ 33. “‘In making this determination, an appellate
court should consider several factors: (1) the nature of the remarks, (2) whether an
objection was made by counsel, (3) whether corrective instructions were given by
the court, and (4) the strength of the evidence against the defendant.’” [CITATION], ¶ 46, quoting [CITATION].
{¶41} Bender takes issue with the prosecutor’s statements regarding the
invocation of his Fifth Amendment right against self-incrimination and his pre-
arrest, pre-Miranda silence. “The Fifth Amendment to the Constitution of the
United States provides that no person ‘shall be compelled in any criminal case to be
a witness against himself.’” [CITATION], ¶ 8, quoting the Fifth Amendment to the U.S. Constitution. “This
Amendment is made applicable to the states through the due process clause of the
Fourteenth Amendment.” Id.
Case No. 14-23-12
{¶42} “‘The right to remain silent is conferred by the United States and the
Ohio Constitutions.”’ [CITATION] at ¶ 50, quoting [CITATION]. “‘The privilege against self-
incrimination “is fulfilled only when the person is guaranteed the right ‘to remain
silent unless he chooses to speak in the unfettered exercise of his own will.’”’” Id.,
quoting [CITATION] at ¶ 78, quoting [CITATION], quoting [CITATION], quoting [CITATION]. “This
rule enforces one of the underlying policies of the Fifth Amendment, which is to
avoid having the jury assume that a defendant’s silence equates with guilt.” [CITATION]
at ¶ 10.
{¶43} Here, Bender contends that the prosecutor improperly asserted that
Bender “was not entitled to assert [his Fifth Amendment] privilege, in front of the
jury, stating ‘[Bender] waived [his] Fifth Amendment right’ * * * .” (Appellant’s
Brief at 12-13, quoting Feb. 7, 2023 Tr., Vol. II, at 194). The State disputes
Bender’s argument and asserts that the prosecutor’s statements were not improper
because Bender’s refusal to answer was not justified.
{¶44} “‘There is no absolute right to invoke the Fifth Amendment.’” [CITATION], quoting [CITATION]. “The protections against self-incrimination ‘must be confined to instances where
the witness has reasonable cause to apprehend danger from a direct answer.’” [CITATION]
Case No. 14-23-12
v. Arnold, [CITATION], quoting Hoffman v. United States, [CITATION]. Consequently, “‘when a witness asserts a privilege against self-incrimination, a court may not rely upon the witness’s claim alone, but has a duty to determine whether the witness’s refusal to answer is justified.’” State v. Barton, [CITATION], quoting State v. Spangler, [CITATION].
{¶45} Based on our review of the record, we conclude that Bender’s refusal
to answer was not justified. Specifically, at trial, Bender testified on direct
examination regarding his witness’s—Dean Smith—testimony that Bender
“coached” his testimony:
[Bender]: My side of the things * * * is that, when we come to
consult with * * * our lawyer * * * that we all talk
separately and we generally had an idea of what
happened that night. I’ve made statements in the past
that I am claiming self-defense but I’ve never persuaded
anybody or told anybody or coached anybody on what
to say here today.
[Trial Counsel]: So [Smith] did that on his own?
[Bender]: Correct.
[Trial Counsel]: Part of an effort to help you?
[Bender]: I would assume so.
[Trial Counsel]: Misguided effort, would you say?
[Bender]: Most definitely.
Case No. 14-23-12
(Feb. 7, 2023 Tr., Vol. II, at 179-180). On cross-examination, Bender invoked his
Fifth Amendment privilege against self-incrimination:
[The Prosecutor]: If I understand your testimony correctly, your friend just
came in here and lied. Is that right?
[Bender]: It would appear so, yes.
[The Prosecutor]: He had lied when he said you told him what to say.
Right?
[Bender]: I plead the fifth on that question.
(Id. at 193-194). Following consultation with his trial counsel, Bender answered
the prosecutor’s question:
[The Prosecutor]: And so, you told him what to say?
[Bender]: I did not.
[The Prosecutor]: You did not, so he lied about that?
[Bender]: Correct.
[The Prosecutor]: [W]ell, why did you plead the fifth then?
[Bender]: I was confused on the question and did not know how
to answer.
(Id. at 194-195).
{¶46} Based on our review of Bender’s testimony, we conclude that Bender
did not present a basis to invoke his Fifth Amendment privilege against self-
incrimination. See [CITATION] at ¶ 24. “‘[W]hen a defendant chooses
to testify in a criminal case, the Fifth Amendment does not allow him to refuse to
Case No. 14-23-12
answer related questions on cross-examination.’” [CITATION]. Significantly, “‘[a] defendant “has no right to set forth to the jury all
the facts which tend in his favor without laying himself open to a cross-examination
upon those facts.”’” [CITATION]. Therefore, because Bender’s refusal was
not justified, the prosecutor’s cross-examination of Bender was not improper.
{¶47} Bender further argues that the prosecutor improperly cross-examined
him regarding his pre-arrest, pre-Miranda silence. Specifically, Bender contends
that the prosecutor improperly “commented on [his] pre-arrest silence to attack the
self-defense [claim] by inferring that if he had nothing to hide, why didn’t he go to
the police, or check in on his friend on a regular basis.” (Appellant’s Brief at 13).
Here, Bender suggests that he was deprived of a fair trial because the prosecutor’s
cross-examination of him regarding his pre-arrest, pre-Miranda silence constituted
substantive evidence of his guilt. The State refutes Bender’s argument and contends
that the prosecutor’s cross-examination of Bender had “probative value for
impeachment, since Bender’s claim of self-defense and claiming to be the victim of
an attack would usually result in a report of his lawful use of force to the police
when it happened.” (Appellee’s Brief at 19).
{¶48} Generally, the “[u]se of a defendant’s pre-arrest silence as substantive
evidence of guilt violates the Fifth Amendment privilege against self-
Case No. 14-23-12
incrimination.” [CITATION].
However, “[a] defendant’s pre-arrest, pre-Miranda silence may be introduced for
[SEGMENT 21]
impeachment purposes.” [CITATION]. Specifically, when “the
defendant has ‘cast aside his cloak of silence,’” the “use of pre-arrest silence as
impeachment evidence is permitted because it furthers the truth-seeking process.”
[CITATION], quoting [CITATION].
(1980). “Otherwise, a criminal defendant would be provided an opportunity to
perjure himself at trial, and the state would be powerless to correct the record.” Id.
Likewise, “the use of a defendant’s pre-arrest, pre-Miranda silence as substantive
evidence of guilt does not violate the Fifth Amendment privilege against self-
incrimination if the defendant fails to expressly invoke the privilege.” [CITATION].
{¶49} Importantly, “the Constitution does not prohibit references to a
defendant’s invocation of the right to remain silent as a ‘fair response’ to a
defendant’s claims.” [CITATION], quoting [CITATION].
864 (1988). See also [CITATION] (“‘The United States Supreme Court has held that the Fifth Amendment
does not prohibit references to a defendant’s invocation of the right against self-
incrimination when the references are made in “fair response” to the defense’s
====== End of Part ====== Case No. 14-23-12
claims.’”), quoting [CITATION]. “A fair response is warranted in such
circumstances because ‘“the protective shield of the Fifth amendment”’ should not
become ‘“a sword that cuts back on the area of legitimate comment by the
prosecutor on the weaknesses in the defense case.”’” [CITATION].
{¶50} The prosecutor’s cross-examination of Bender regarding his pre-
arrest, pre-Miranda silence was not improper. Critically, the State’s cross-
examination of Bender amounts to impeachment evidence, which did not violate
Bender’s right to remain silent. Accord [CITATION]. That is, the prosecutor’s
cross-examination of Bender regarding his pre-arrest, pre-Miranda silence was a
fair response to Bender’s self-defense claim. See [CITATION].
See also [CITATION].
{¶51} Therefore, since the prosecutor did not improperly address Bender’s
invocation of his Fifth Amendment privilege against self-incrimination or his pre-
arrest, pre-Miranda silence, Bender’s substantial rights were not prejudiced and he
====== End of Part of a Court Ruling ====== Case No. 14-23-12
was not deprived of a fair trial. For these reasons, we conclude that the trial court
did not abuse its discretion by denying Bender’s motion for a mistrial.
{¶52} Bender’s second assignment of error is overruled.
Third Assignment of Error
The Trial Court Erred When It Failed To Give A Jury Instruction
On Aggravated Assault.
Fourth Assignment of Error
The Trial Court Erred When It Gave An Improper Instruction
On Self-Defense.
Fifth Assignment of Error
The Trial Court Erred When It Failed To Send Verdict Forms To
The Jury As To The Issue Of Self-Defense.
{¶53} In his third, fourth, and fifth assignments of error, Bender challenges
the trial court’s jury instructions and verdict forms. In particular, in his third
assignment of error, Bender argues that the trial court erred by failing to instruct the
jury on the inferior-degree offense of aggravated assault. Bender specifically argues
in his fourth assignment of error that the trial court erroneously instructed the jury
regarding self-defense. Finally, in his fifth assignment of error, Bender argues that
the trial court erred by providing the jury with improper verdict forms.
Standard of Review
{¶54} “A trial court’s decision to give a jury instruction is within its
discretion, and we will not reverse such a decision absent an abuse of that
Case No. 14-23-12
discretion.” [CITATION]
Again, an abuse of discretion implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. [CITATION]
Analysis
{¶55} “While a trial court has broad discretion to determine how it will
instruct a jury, the court has a duty to ‘fully and completely give the jury all
instructions which are relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.’” [CITATION], quoting [CITATION] “Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction.”
[CITATION]
Aggravated Assault Instruction
{¶56} In his third assignment of error, Bender contends that the trial court
erred by failing to instruct the jury on the inferior-degree offense of aggravated
assault. “[A] trial court may refuse to issue a requested jury instruction if ‘“the
evidence adduced at trial is legally insufficient” to support it.’” [CITATION], quoting [CITATION] quoting [CITATION]. See also [CITATION]
====== End of Example ====== Case No. 14-23-12
decision whether to give a requested instruction, the appropriate inquiry is whether
sufficient evidence has been presented to support the instruction.”). “[T]he trial
judge is in the best position to gauge the evidence before the jury and is provided
the discretion to determine whether the evidence adduced at trial was sufficient to
require an instruction.” [CITATION]
{¶57} “Aggravated assault is an offense of an inferior degree of felonious
assault.” [CITATION] “An instruction on aggravated assault is appropriate when the evidence supports a
conviction for felonious assault, but the assault resulted from serious provocation
by the victim.” [CITATION]
¶ 8. That is, “[i]n a trial for felonious assault, where the defendant presents sufficient
evidence of serious provocation, such that a jury could both reasonably acquit [the]
defendant of felonious assault and convict [the] defendant of aggravated assault, an
instruction on aggravated assault, as an inferior degree of felonious assault, must be
given.” (Emphasis sic.) [CITATION]
{¶58} “‘Provocation, to be serious, must be reasonably sufficient to bring on
extreme stress and the provocation must be reasonably sufficient to incite or arouse
the defendant into using deadly force.’” Id. at ¶ 26, quoting [CITATION] “‘In determining whether
the provocation was reasonably sufficient to incite the defendant into using deadly
Case No. 14-23-12
force, the court must consider the emotional and mental state of the defendant and
the conditions and circumstances that surrounded him at the time.’” Id., quoting
[CITATION] at paragraph five of the syllabus.
{¶59} “Ohio courts considering what constitutes sufficient ‘serious
provocation’ have found that past incidents or verbal threats are not sufficient;
words are not sufficient; and a victim’s simple pushing or punching the defendant
is not sufficient.” [CITATION] No. L-22-1166, 2023-Ohio-
3543, ¶ 53. Similarly, “[r]egarding the emotional state necessary to constitute
sudden passion or a sudden fit of rage, Ohio courts have found that confusion or
fear alone is not sufficient.” Id. at ¶ 54. Indeed, “where a defendant testifies that
he was merely afraid and no evidence exists that he actually acted under a sudden
fit of passion or rage, a court does not abuse its discretion by refusing to provide an
instruction on aggravated assault.” [CITATION] at ¶ 36.
{¶60} On appeal, Bender argues that he presented sufficient evidence that he
acted under serious provocation. In response, the State expostulates that
“[a]ggravated assault is generally incompatible with a theory of self-defense
because self-defense requires proof of fear while aggravated assault requires a
showing of a sudden passion or rage.” (Appellee’s Brief at 20). In the alternative,
the State asserts that Bender did not present any evidence that he “acted ‘in a sudden
fit of rage.’” (Id. at 21). Instead, the State proclaims that Bender “unequivocally
testified that he stabbed [B.H.] out of a fear for his safety.” (Id.).
Case No. 14-23-12
{¶61} “This Court has stated that a defendant who asserts self-defense “‘is
not entitled under Ohio law to instructions on self-defense and on lesser included
offenses [or inferior degree offenses], but must choose between the two.”’” [CITATION], quoting [CITATION], quoting [CITATION]. Our sister courts of
appeal have agreed that “[i]n most cases, an aggravated assault instruction is
incompatible with an instruction on self-defense, so that both cannot be given
together.” [CITATION]. See also [CITATION] (“Generally, an instruction on aggravated assault is incompatible with an instruction
on self-defense, such that both cannot be given together, because the legal theories
underpinning each offense are incompatible (aggravated assault—rage; self-
defense—fear).”).
{¶62} However, some courts have diverged and resolved that “‘[w]here there
is sufficient evidence on the issues of self-defense and aggravated assault, the court
[SEGMENT 22]
must charge the jury on both, when so requested.’” [CITATION], quoting [CITATION]. See also [CITATION]. “For instance, an aggravated assault instruction could be given in a self-
Case No. 14-23-12
defense case where a defendant exceeded the amount of force necessary for his
defense, out of passion or rage.” [CITATION] at ¶ 26.
{¶63} Nevertheless, we need not resolve such disaccord in this case because
Bender did not present sufficient evidence that he acted under “sudden passion or a
fit of rage” as contemplated by the aggravated-assault statute. Decisively, the theory
of Bender’s case was that he stabbed B.H. nine times out of fear. Indeed, Bender
testified that he found himself on the ground with B.H. “on top of [him] attacking
[him] at which point [B.H.] took the mid section of his forearm and placed it on
[Bender’s] throat and [he] could no longer breathe.” (Feb. 7, 2023 Tr., Vol. II, at
166). Bender testified that “[a]t that point in time, [he] didn’t know if he was going
to stop. [He] could not get him off of [him]. [He] could not get his body weight off
of [him], so [he] reacted accordingly until [he] felt the pressure come off [his] neck.”
(Id. at 172). That is, he testified that he “pulled out [his] knife and [he] stabbed him
in the back, in the lower buttocks and the thigh until he stopped and [Bender]
deemed him no longer a threat.” (Id.).
{¶64} Critically, Bender testified that “[i]t was at that time that [he] could no
longer breathe that [he] feared that [his] life was in danger and [he] reacted
accordingly.” (Emphasis added.) (Id. at 166-167). Specifically, Bender testified
that he stabbed him “[t]o get him to stop” because he “felt that [his] life was in
danger” and he “wanted to neutralize the threat.” (Id. at 173). In sum, Bender
testified that “[t]he moment that [he] felt the pressure come off [his] neck and [he]
Case No. 14-23-12
could once again breathe is the * * * moment that [he] stopped stabbing him * * *
.” (Id. at 167).
{¶65} Based on the foregoing, we conclude that Bender presented evidence
that he acted out of fear and not out of sudden passion or a fit of rage. See [CITATION]. That is, Bender
did not present reasonably sufficient evidence that the circumstances incited him to
use deadly force to repel the attack. As a result, Bender did not present sufficient
evidence of serious provocation. Compare [CITATION].
Consequently, the trial court did not abuse its discretion by failing to instruct the
jury on the inferior-degree offense of aggravated assault.
Self-Defense Instruction
{¶66} In his fourth assignment of error, Bender argues that the trial court
erred by instructing the jury that he had a duty to retreat in contravention of Ohio’s
“stand your ground” law under R.C. 2901.09. “The amended ‘stand your ground’
law in Ohio now provides that ‘a person has no duty to retreat before using self-
defense * * * if that person is in a place in which the person lawfully has a right to
be.’” [CITATION], quoting R.C. 2901.09(B), and citing [CITATION]. The statute further provides that “[a] trier of fact
shall not consider the possibility of retreat as a factor in determining whether or not
a person who used force in self-defense * * * believed that the force was necessary
====== End of Court Ruling ====== Case No. 14-23-12
to prevent injury, loss, or risk to life or safety.” R.C. 2901.09(C). “‘Simply put, the
new “stand your ground’ law removes, in most cases, the duty to retreat before using
self-defense.’” Warnock at ¶ 46, quoting [CITATION]. But see [CITATION] (cautioning that “R.C. 2901.09(C) is not an
absolute prohibition on introducing evidence involving the possibility of retreat.
Rather, the statute only prohibits fact finders from considering evidence involving
the possibility of retreat to determine whether the defendant’s belief that force was
necessary was reasonable. Fact finders may, however, consider retreat evidence to
determine who was at fault in creating the situation leading to the affray”).
{¶67} In this case, the trial court instructed the jury, in relevant part, that
[i]n determining whether the Defendant, in using force in self-defense
reasonably believed that the force was necessary to prevent injury,
loss, or risk to life or safety, you may not consider the possibility of
retreat by the Defendant. The Defendant had no duty to retreat before
using force in self-defense if the Defendant was in a place in which
he lawfully had a right to be.
(Feb. 8, 2023 Tr. at 70).
{¶68} “Whether the jury instructions correctly state the law is a question that
is reviewed de novo.” [CITATION]. “De novo review is independent, without deference to the lower court’s decision.”
[CITATION].
Case No. 14-23-12
{¶69} Based on our review of the trial court’s jury instruction, we conclude
that the trial court’s jury instruction is a correct statement of law. Compare [CITATION]
at ¶ 48 (concluding that the trial court’s self-defense jury instruction conformed with
Ohio’s “stand your ground” law). Indeed, the trial court’s jury instruction plainly
states the appropriate duty-to-retreat standard as codified in R.C. 2901.09.
Consequently, the trial court’s self-defense jury instruction is not unreasonable,
arbitrary, or unconscionable.
Verdict Forms
{¶70} In his fifth assignment of error, Bender argues that the trial court erred
by failing to give the jury a separate verdict form regarding his self-defense claim.
Specifically, Bender asserts that the trial court should have provided the jury with
verdict forms requiring the jury to assess whether the State met its burden of proving
that he did not act in self-defense.
{¶71} Importantly, Bender did not object to the verdict forms at trial.
Consequently, Bender has forfeited all but plain error on appeal. Accord [CITATION], ¶ 11. Under Crim.R. 52(B), “plain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” “We recognize plain error with the utmost
caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” [CITATION], ¶ 69. “‘For plain error to apply, the trial court must have deviated from a
Case No. 14-23-12
legal rule, the error must have been an obvious defect in the proceeding, and the
error must have affected a substantial right.’” Id., quoting [CITATION]. “‘Under the plain error standard, the
appellant must demonstrate that the outcome of his trial would clearly have been
different but for the trial court’s errors.’” Id., quoting [CITATION] at ¶ 34.
{¶72} When reviewing a trial court’s jury instructions under the plain-error
standard, “‘an appellate court must review the [jury] instructions as a whole and the
entire record to determine whether a manifest miscarriage of justice has occurred as
a result of the error in the instructions.’” [CITATION], quoting [CITATION], ¶ 38, quoting [CITATION], ¶ 137. “An improper or erroneous jury instruction does
not constitute plain error unless, but for the error, the outcome of the trial would
clearly have been different.” Id. Consequently, Bender is required to “demonstrate
that his convictions clearly would have been different had the trial court instructed
the jury on self-defense either before or after the elements of each offense and on
the requirement of unanimity.” Id.
{¶73} On appeal, Bender contends that the trial court erred by “not send[ing]
verdict forms back on the issue of self-defense, as the proper order is for the jury to
determine if the State met its burden beyond a reasonable doubt self-defense [sic]
and that must be a unanimous decision.” (Appellant’s Brief at 17). That is, Bender
argues that
Case No. 14-23-12
[t]he only way for [him] to know that each member of the jury
thoughtfully considered the issue of self-defense and whether the
State met its burden of beyond a reasonable doubt is for each member
of the jury to sign a verdict form that either the State did or did not
prove beyond a reasonable doubt that Mr. Bender did not act in self-
defense.
(Id.).
{¶74} We disagree with Bender’s proposition and join our sister appellate
districts in the conclusion that “[t]here is no requirement for a separate finding in
[SEGMENT 23]
trials with claims of self-defense.” [CITATION]. Accord [CITATION]. See also [CITATION]. Therefore, the absence of a separate verdict form regarding
Bender’s self-defense claim was not error, let alone plain error. Accord Smith at ¶
48.
{¶75} For these reasons, Bender’s third, fourth, and fifth assignments of error
are overruled.
Seventh Assignment of Error
The Trial Court Erred When It Sentenced Appellant To An
Indefinite Sentence: Reagan Tokes.
{¶76} In his seventh assignment of error, Bender argues that his sentence,
imposed under Ohio’s current sentencing scheme (commonly known as the “Reagan
Tokes Law”), is unconstitutional.
Case No. 14-23-12
Standard of Review
{¶77} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” [CITATION], ¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting [CITATION], paragraph three of the
syllabus.
Analysis
{¶78} In this case, Bender challenges the constitutionality of the Reagan
Tokes Law—namely, Bender alleges that the Reagan Tokes Law violates his
constitutional right to a trial by jury in addition to violating the separation-of-powers
doctrine and due-process clause of the Ohio and United States Constitutions.
Imperatively, not only has this court rejected similar facial- and as-applied-
constitutional challenges to the Reagan Tokes Law, but the Supreme Court of Ohio
recently endorsed the constitutionality of the Reagan Tokes Law. Accord [CITATION], ¶ 41. We decline to diverge from such
formidable precedent. Accordingly, Bender’s sentence is not contrary to law.
{¶79} Bender’s seventh assignment of error is overruled.
Case No. 14-23-12
{¶80} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and MILLER, J., concur.
/hls
====== End of Part of a Court Ruling ======
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230457
TRIAL NO. B-2203537-A
Plaintiff-Appellee, :
:
VS.
:
ANASIA SHINHOLSTER, :
Defendant-Appellant. :
STATE OF OHIO, : APPEAL NO. C-230436
TRIAL NO. B-2203537-B
Plaintiff-Appellee, :
:
vs.
:
O P I N I O N.
SAKARIA WILLIAMS, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in C-230457; Affirmed in Part, Sentences
Vacated, and Cause Remanded in C-230436
Date of Judgment Entry on Appeal: April 26, 2024 OHIO FIRST DISTRICT COURT OF APPEALS
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Law Office of Arica L. Underwood LLC and Arica L. Underwood, for Defendant-
Appellant Anasia Shinholster,
Timothy J. McKenna, for Defendant-Appellant Sakaria Williams.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} A takeout order placed by restaurant regulars that took too long sparked
a request for a refund that led to a physical altercation, culminating in three shots fired
and a gunshot wound. Following the incident, codefendants-appellants Anasia
Shinholster and Sakaria Williams (together, “Defendants”) were tried jointly, and both
women were convicted of two counts of felonious assault and sentenced to five-to-six
years in prison.
{¶2} We sua sponte consolidate their two separate appeals into a single
opinion and judgment because Defendants raise overlapping self-defense arguments,
challenging their convictions for felonious assault on manifest weight grounds. Ms.
Shinholster separately raises concerns about a clerical error in the judicial entry
denying her Crim.R. 29 motion for a judgment of acquittal. And Ms. Williams argues
that the trial court failed to merge allied offenses of similar import and that the state
failed to establish the “aiding and abetting” element of felonious assault. After
reviewing the record and the trial court’s decision, we vacate Ms. Williams’s sentences
and remand her case (C-230436) for resentencing. In all other respects, we affirm
both judgments of the trial court.
I.
{¶3} In July 2022, Ms. Shinholster arrived at a restaurant that she regularly
frequented to pick up food that she and Ms. Williams had ordered. Because the order
was not yet ready, she had to wait for the food. Sometimes, when that happened, the
restaurant would offer a free soft drink for their troubles of having to wait longer than
expected. Accordingly, she requested a drink, but the restaurant was out of her
preferred beverage and one of the restaurant’s owners, Jason Williams, declined her
OHIO FIRST DISTRICT COURT OF APPEALS
back-up request because the alternative drink she wanted was more expensive. Ms.
Shinholster was on the phone with Ms. Williams throughout this encounter, with her
annoyance growing by the minute.
{¶4} As Ms. Shinholster left with the order, she announced to Ms. Williams
that she would no longer support the restaurant. Jason overheard this edict.[CITATION]
Testimony and evidence presented at trial established that Ms. Williams and Jason
later exchanged phone calls, adding fuel to the simmering feud. The content of these
phone calls, however, is disputed. According to Jason, although the calls grew heated
at moments, no one said anything outrageous, and he eventually apologized. But Ms.
Shinholster testified that during the last call (the only call to which she was a party),
Jason was irate and disrespectful, hurling profanities at them.
{¶5} Following the phone calls, Defendants determined that they wanted a
refund for their order. Together, they decided that Ms. Williams would enter the
restaurant because the owners would be less familiar with her. Ms. Shinholster
remained in the car with Ms. Williams on speaker phone, so she could hear what
transpired inside the restaurant. Both women carried a gun, consistent with their
normal practice, although Ms. Shinholster testified that she did not know whether Ms.
Williams was armed that night.
{¶6} As Jason and his co-owner and wife, Peta Duffus, began to prepare to
close their restaurant for the evening, Ms. Williams entered the restaurant, demanding
a refund for her order. She claimed that she did not know what was in the order
because her mother had placed it. There is conflicting testimony regarding where
Jason was when the encounter began. Ms. Shinholster testified that she first heard
1 Because Sakaria Williams and Jason Williams share a last name, we refer to Jason Williams as
“Jason” throughout the opinion to avoid any confusion.
OHIO FIRST DISTRICT COURT OF APPEALS
Ms. Williams having a cordial conversation with Jason. But Jason testified that he was
in the back cleaning when Ms. Williams entered the restaurant and did not come to
the front of the restaurant until he heard loud talking and the mention of a gun. And
Ms. Duffus similarly testified that she was the first one to interact with Ms. Williams
while Jason worked in the back.
{¶7} Regardless, it is undisputed that some time at or near the beginning of
the encounter, Ms. Duffus began arguing with Ms. Williams, prompting Ms.
Shinholster to enter the restaurant and Jason to call 911 as he advanced towards the
front of the restaurant. According to Ms. Duffus, when Ms. Williams entered the
restaurant, she flashed her gun. As evidenced by video footage, Ms. Williams walked
behind the counter into the employees-only kitchen area. And Ms. Shinholster stood
in the doorway to the employees-only area to prevent the door from closing. The
owners did not invite Defendants into this area, and Ms. Duffus instructed them to
leave the business multiple times during this portion of the encounter. Ms.
Shinholster testified that they refused to leave because they were waiting for the police
to show up to enable them to procure their refund.
{¶8} At some point during this time, Ms. Duffus picked up a knife, but she
quickly put it down, and never came within an arm’s length of the women while
holding the knife. Nor did anyone touch the knife again during the encounter.
[SEGMENT 24]
Throughout this portion of video evidence admitted at trial, Ms. Duffus indicates that
the women have a gun. And Ms. Shinholster informs the 911 operator that she had her
concealed carry permit.
{¶9} Conflicting testimony exists as to how the physical altercation between
Ms. Williams and Ms. Duffus began. Ms. Duffus testified that she tried to grab the
OHIO FIRST DISTRICT COURT OF APPEALS
food bag from Ms. Williams to see what was in it, and Ms. Williams punched her, spit
in her face, and turned around, and in response, Ms. Duffus grabbed her. Jason
explained that he saw Ms. Duffus chase the women into the lobby and a physical
altercation ensued. And Ms. Shinholster asserted that Ms. Duffus started pushing and
shoving Ms. Williams out of the employees-only area with a dustpan, and Ms. Williams
went to leave, but then Ms. Duffus “attacked” her, punching her and pulling her hair.
Ms. Shinholster insisted that Ms. Williams did not spit at anyone or touch anyone until
she needed to defend herself. Once the physical altercation began, it is undisputed
that Ms. Duffus held Ms. Williams pinned on the ground, as the two women continued
to tussle. Ms. Duffus testified that, at some point during this altercation, she removed
Ms. Williams’s gun from her bag and slid it under the bulletproof glass at the counter,
into the cash register area (presumably to ensure that no one would use it).
{¶10} Ms. Shinholster intervened to assist Ms. Williams, prompting Jason to
attempt to remove her from the restaurant. He and Ms. Shinholster engaged in a
physical altercation at the door of the restaurant as he sought to shove her out of the
restaurant, while she fought to remain inside (and later regain entry). During this
time, Ms. Duffus still had Ms. Williams pinned on the ground. Ms. Williams continued
to call for help, eventually encouraging her companion to “shoot the bitch.”
{¶11} Believing that he locked Ms. Shinholster out of the restaurant, Jason
turned to address the encounter between the two women rolling around on the floor.
However, Ms. Shinholster regained entry and fired three shots at him. In her
recounting of the story, she asserts that he reached into Ms. William’s purse and pulled
out “what looked like to me resembled like a hammer like object” and moved towards
her when she decided to fire three shots in self-defense.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} After the shots were fired, Ms. Shinholster grabbed Ms. Williams, exited
from the restaurant, called the police, and waited by their car for police to arrive. A
detective arrived and interviewed, and then arrested, both women. Upon their arrival
at the Justice Center, officers denied them entry because of their injuries, so they first
went for treatment at a hospital before landing in jail. Ms. Shinholster testified that
she is recovering from a concussion that occurred during the melee, and that she also
suffered a scraped knee and bruised arms. And she testified that the photo evidence
of Ms. Williams (which showed a large bump on her head) accurately portrayed how
she looked following the incident. Jason required surgery for his injury and suffers
ongoing pain from his gunshot wound.
{¶13} Both Defendants were charged with two counts of felonious assault,
felonies of the second degree, in violation of R.C. 2903.11(A)(1) and (2), with firearm
specifications. Both women waived their rights to a jury trial. At trial, Ms. Duffus,
Jason, Detective Carl Blackwell, and Ms. Shinholster testified (notably, Ms. Williams
did not testify). The defense and prosecution also tendered exhibits, including 911
calls, cellphone footage, and various photographs. Ultimately, the trial court found
Defendants each guilty of both counts and sentenced them to the mandatory minimum
of two-to-three years on count 1, plus three years on the firearm specification, and
count 2 running concurrently to count 1, for five-to-six-year indeterminate sentences.
II.
{¶14} On appeal, Ms. Shinholster and Ms. Williams each raise three
assignments of error, with overlapping self-defense arguments. We first address their
self-defense arguments. We then proceed to analyze each defendant’s remaining
assignments of error.
OHIO FIRST DISTRICT COURT OF APPEALS
A.
{¶15} In Ms. Shinholster’s first and second assignments of error and Ms.
Williams’s third assignment of error, Defendants challenge their convictions for
felonious assault as against the manifest weight of the evidence, maintaining that the
state failed to prove beyond a reasonable doubt that they were not acting in self-
defense. Ms. Williams also raises a sufficiency challenge to the self-defense claim.
But, based on the recent change in the law regarding self-defense claims, the
sufficiency of the evidence standard applies to the defendant’s burden of production,
whereas a manifest weight of the evidence standard applies to the state’s burden of
persuasion. See [CITATION]. Thus, “[t]he Ohio Supreme Court has held that a self-defense claim is not
an element of the offense that must be proven by the state and, therefore, it is not
subject to review for sufficiency of the evidence.” [CITATION], citing [CITATION]. Consequently, we
only evaluate Defendants’ convictions through a manifest weight lens.
{¶16} When a defendant raises a self-defense claim, once evidence is
presented that tends to support that their use of force was in self-defense or in defense
of another, “ ‘ “the burden of persuasion requires the state to disprove at least one of
the elements of self-defense * * * beyond a reasonable doubt.” ’ ” (Emphasis added.)
[CITATION]. “Unlike the burden
of production, which concerns a party’s duty to introduce enough evidence on an issue,
the burden of persuasion represents a party’s duty to convince the factfinder to view
OHIO FIRST DISTRICT COURT OF APPEALS
the facts in a favorable manner to them.” (Emphasis sic.) [CITATION] at ¶ 15, citing
[CITATION] at ¶ 17.
{¶17} We will not reverse a conviction unless “the evidence weighs heavily
against [it].” Id. And we will not “second-guess the factfinder’s adjudication of
conflicting evidence” except under “the most exceptional circumstances.” Id. Thus,
when reviewing a manifest weight challenge involving self-defense, we must
determine if “the factfinder disregarded or overlooked compelling evidence that
weighed against conviction.” [CITATION] at ¶ 8, citing [CITATION].
{¶18} Defendants insist that the state failed to prove beyond a reasonable
doubt that they did not act in defense of themselves or of another. Self-defense and
defense of another are affirmative defenses that legally excuse otherwise unlawful
conduct. See [CITATION] at ¶ 21 (“The plain language of R.C. 2901.05(A) reflects that self-defense is still an
affirmative defense.”).
{¶19} Here, the facts that both Defendants were injured during the
altercation and that they claimed that the restaurant owners started the brawl tend to
support the conclusion that they acted in self-defense. Therefore, the burden shifted
to the state to disprove one or more of the elements of self-defense in the use of deadly
force: “(1) the defendant[s] [were] not at fault in creating the situation giving rise to
the affray; (2) the defendant[s] had a bona fide belief that [they were] in imminent
danger of death or great bodily harm and that [their] only means of escape from such
a danger was in the use of such force; [or] (3) the defendant[s] did not violate any duty
to retreat or avoid the danger.” [CITATION], 1st Dist. Hamilton No. C-190507, 2020-Ohio-
OHIO FIRST DISTRICT COURT OF APPEALS
4976, at ¶ 48, citing [CITATION].
The state must only disprove one element beyond a reasonable doubt to defeat the
self-defense claim. See [CITATION], ¶ 9, citing [CITATION], at ¶ 10.
{¶20} Under the first element of a self-defense claim, the state presented
evidence establishing that Defendants were at fault in creating the situation giving rise
to the affray. For the purposes of self-defense, “the first aggressor in an incident is ‘at
fault.’ ” [CITATION], ¶ 30, quoting [CITATION], ¶ 9, citing [CITATION], ¶ 23.
Defendants argue (and Ms. Shinholster testified) that they were not at fault in creating
the situation leading to the shooting because Jason attacked Ms. Shinholster, and Ms.
Duffus attacked Ms. Williams. But Ms. Duffus testified that Ms. Williams spit on her
and threw the first punch. Similarly, Jason testified that he did not get physically
involved with Ms. Shinholster until she engaged in the altercation between the other
two women. Ms. Williams also claims that she was not at fault in creating the situation
because at one point she put up her hood and turned to leave before Ms. Duffus
launched an attack at her. She did not testify at trial, so the only evidence supporting
[SEGMENT 25]
this claim comes from the testimony of Ms. Shinholster indicating that they were going
to leave at this point. But elsewhere during her testimony, Ms. Shinholster
acknowledged that they refused to leave and were waiting for the police to show up.
{¶21} Moreover, the state demonstrated under the second element that
Defendants were not in imminent danger of death or great bodily harm at the time Ms.
Shinholster fired shots at Jason. Both Ms. Shinholster and Ms. Williams arrived for a
OHIO FIRST DISTRICT COURT OF APPEALS
refund with guns. At trial, Ms. Shinholster testified that she “fear[ed] for her life” and
that “[i]f [she] didn’t fire that either Ms. Williams and I would have died that night.”
She also maintained that she “knew Ms. Williams could not breathe because of the
position she was in.” Yet testimony and evidence presented at trial demonstrate that
Ms. Williams was loudly and continuously yelling for help throughout the encounter
(not to mention exhorting her companion to shoot), demonstrating her ability to
breathe. And while Ms. Shinholster testified that Jason was coming at her when she
fired her gun, he testified that he thought he locked her out and had turned back to
address the altercation between Ms. Duffus and Ms. Williams at the time the shots
were fired.
{¶22} Furthermore, the state established that Defendants had a duty to
retreat before using force in self-defense. Under the most recent amendments to R.C.
2901.09(B), a person does not have a duty to retreat before using force in self-defense
if that person is in a place where they lawfully have a right to be. [CITATION], at ¶ 17. While Ms. Shinholster and Ms. Williams were lawfully
able to enter the restaurant, by the time of the shooting, they were trespassers (and
thus, were not in a place where they lawfully had a right to be). Testimony, video
evidence, and the 911 call recordings establish that Ms. Williams entered the
employees-only area of the restaurant without permission. And the restaurant owners
repeatedly instructed Defendants to leave the restaurant before the physical
altercation began. During the recording of her 911 call, Ms. Shinholster responded to
Ms. Duffus’s instruction to leave: “No, we ain’t going nowhere.”
{¶23} Self-defense claims are often rife with issues of credibility. And here,
the state and Defendants largely presented two different versions of the events leading
OHIO FIRST DISTRICT COURT OF APPEALS
up to the shooting. But when there is conflicting evidence presented at trial, we will
not find that a conviction is against the manifest weight of the evidence where a trier
of fact reasonably weighed the conflicting evidence. See, e.g., [CITATION]. On this record, we cannot
conclude that the trial court clearly lost its way or created a manifest miscarriage of
justice in determining that the state proved beyond a reasonable doubt that
Defendants did not act in self-defense. Although some evidence weighs in favor of the
self-defense claims, the weight of the evidence points in the other direction. Therefore,
we overrule Ms. Shinholster’s first and second assignments of error and Ms. Williams’s
third assignment of error.
B.
{¶24} Turning to Ms. Shinholster’s remaining assignment of error, she
maintains the trial court erred by denying her Crim.R. 29 motion for a judgment of
acquittal as to “counts 1 and 2” when she was the named defendant in the third and
fourth counts of the indictment. Specifically, in light of this error, she claims that this
court should vacate her conviction.
{¶25} Defendants were convicted of parallel counts of felonious assault:
counts 1 and 2 against Ms. Williams and counts 3 and 4 against Ms. Shinholster. At
the conclusion of the presentation of evidence at trial, both defendants moved for a
judgment of acquittal pursuant to Crim.R. 29, which the trial court immediately
denied. Two days later, the trial court journalized its denial of the Crim.R. 29 motion
in two entries, one for each defendant. The entries for both defendants listed counts 1
and 2. But the entry regarding Ms. Shinholster should have listed counts 3 and 4 as
those were the charges against her. Of note, however, the entry reflected the
OHIO FIRST DISTRICT COURT OF APPEALS
appropriate offenses (both felonious assault). The court never corrected its error, but
it later docketed an entry finding Ms. Shinholster guilty of the correct counts.
{¶26} A clerical error is “ ‘a mistake or omission, mechanical in nature and
apparent on the record, which does not involve a legal decision or judgment.’ ” [CITATION],
quoting [CITATION].
{¶27} Ms. Shinholster acknowledges that the error was clerical. And the court
orally denied her Crim.R. 29 motion during trial. Further, the court later docketed an
entry finding her guilty of the correct counts. While Ms. Shinholster argues her
conviction should be vacated, we see no basis for vacating the conviction for what
appears to be a scrivener’s error that did not affect her substantial rights. Nor does
she explain how she suffered any prejudice from this clerical error. Without any such
argument, we see no utility in a remand to correct the error given that the ultimate
judgment was correct.
{¶28} In light of the foregoing analysis, we overrule Ms. Shinholster’s second
assignment of error.
C.
{¶29} Finally, we consider Ms. Williams’s remaining arguments. In her first
assignment of error, she asserts that the trial court failed to merge the felonious
assaults in counts 1 and 2 when they were the same offenses against the same victim
and were part of the same immediate and continuing course of conduct. Rather than
ordering Ms. Williams to serve count 2 concurrently, she argues that the court should
have merged the two counts. This court reviews R.C. 2941.25 merger determinations
OHIO FIRST DISTRICT COURT OF APPEALS
de novo. [CITATION], ¶ 28.
{¶30} The Ohio Supreme Court has repeatedly found convictions under these
sections of R.C. 2903.11 “are allied offenses of similar import * * * when both are
committed with the same animus against the same victim.” [CITATION], ¶ 1; see [CITATION], ¶ 1. While a defendant who commits allied
offenses of similar import may be tried for both offenses, they may “only be sentenced
for one offense.” [CITATION], ¶ 5.
{¶31} Here, Ms. Williams was charged with and convicted of felonious assault
under both R.C. 2903.11 (A)(1) and (A)(2), which respectively address the infliction of
serious physical harm and the use of a deadly weapon to cause or attempt to cause
physical harm. Both charges result from her encouraging Ms. Shinholster to shoot and
the resulting injury caused to Jason. The trial court sentenced her on both counts
concurrently. But because the offenses were allied offenses of similar import, the court
should have merged the counts at sentencing. Underscoring the point, the state
concedes this error. Therefore, we sustain Ms. Williams’s first assignment of error.
{¶32} In her second assignment of error, Ms. Williams claims that her
conviction for felonious assault was against the manifest weight of the evidence and
was not supported by sufficient evidence because the state failed to establish the
required elements of the offense. Specifically, she contests the “aiding and abetting”
element of R.C. 2923.03(A)(2), arguing that she did not act in concert with Ms.
Shinholster (who indisputably fired the shots) to commit felonious assault.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} When reviewing a sufficiency challenge, this court asks “ ‘ “whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” ’ ” [CITATION], quoting [CITATION], quoting [CITATION] (1991), paragraph two of the syllabus. “ ‘ “[W]here reasonable minds can reach
different conclusions upon conflicting evidence, determination as to what occurred is
a question for the trier of fact.’ ” ” (Emphasis deleted.) Id., quoting [CITATION], quoting [CITATION] at 279.
{¶34} This court sits as the “thirteenth juror” when reviewing whether a
conviction runs counter to the manifest weight of the evidence. [CITATION]. “[W]e review the evidence, the credibility of witnesses,
and the entire record.” [CITATION], citing [CITATION]. But we will not reverse the conviction unless “the trial
court ‘ “clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” ’ ” Id., quoting [CITATION], quoting [CITATION]
(1st Dist.1983).
{¶35} It is undisputed that Ms. Shinholster shot Jason, so Ms. Williams’s
[SEGMENT 26]
guilt is premised on aiding or abetting. And to support a conviction for aiding or
abetting under R.C. 2923.03(A)(2), “ ‘the evidence must show that the defendant
supported, assisted, encouraged, cooperated with, advised, or incited the principal in
the commission of the crime, and that the defendant shared the criminal intent of the
principal. Such intent may be inferred from the circumstances surrounding the crime.’
OHIO FIRST DISTRICT COURT OF APPEALS
” [CITATION]¶ 15, quoting [CITATION] syllabus. “ ‘ “[I]n order to aid or abet, whether by words, acts, encouragement,
support, or presence, there must be something more than a failure to object.” ’ ” [CITATION] ¶ 12, quoting [CITATION], quoting [CITATION].
{¶36} Ms. Williams maintains that no evidence existed of a common plan or
scheme to fight or shoot anyone. But the state counters that Defendants acted in
concert to cause harm to Jason with a deadly weapon. Defendants planned to get a
refund from the store. They decided that Ms. Williams should enter the store because
the owners were less likely to recognize her. And Ms. Shinholster would wait in the
car on speaker phone, so she could hear everything that transpired inside (and come
to her aid if necessary). Ms. Williams set the plan into motion by entering the store.
And although Ms. Shinholster testified that she did not know Ms. Williams entered
the store with her firearm, she also stated it was their general practice to carry their
firearms, and both women were armed at the time of the affray.
{¶37} Ms. Duffus had Ms. Williams pinned to the ground throughout most of
the physical encounter, so Ms. Williams was unable to access her firearm. However,
there is undisputed evidence that at least once during the encounter, Ms. Williams
instructed Ms. Shinholster to shoot. Ms. Shinholster testified that she did not
remember Ms. Williams saying “shoot” or anything like that, but the prosecutor played
Jason’s 911 call and asked her if she could identify who yelled, “Shoot the bitch.” Ms.
Shinholster identified Ms. Williams as the speaker. And Ms. Duffus testified that Ms.
OHIO FIRST DISTRICT COURT OF APPEALS
Williams instructed Ms. Shinholster to “shoot them.” While on the phone with 911
following the event, Ms. Duffus also stated: “The other one was saying shoot them,
shoot them.”
{¶38} In [CITATION], the defendant and members of his gang arrived at a party in search of an individual
who was involved in a previous altercation with a member of their gang. Witnesses
testified that the defendant yelled “Shoot” and “Shoot the [expletive].” Id. Shots were
fired, and three individuals were injured. Id. Although the identity and the specific
target of the shooter were uncertain, the Ohio Supreme Court upheld the juvenile
court’s finding of delinquency under the principle of complicity by aiding and abetting
because “the juvenile court evaluated the evidence, determined that the [defendant]
had actively encouraged a member of his gang to shoot at someone at the [victim’s]
home with the specific intent to cause harm, and found that the state had sufficiently
shown transferred intent.” Id. at ¶ 17.
{¶39} Like the defendant in [CITATION], Ms. Williams encouraged someone
she knew to be armed to shoot. Accordingly, based on these facts, Ms. Williams’s
conviction for felonious assault was supported by sufficient evidence and was not
against the manifest weight of the evidence. We overrule her second assignment of
error.
* * *
{¶40} In the appeal numbered C-230457, we overrule Ms. Shinholster’s
assignments of error and affirm the trial court’s judgment.
{¶41} And in the appeal numbered C-230436, we sustain Ms. Williams’s first
assignment of error and overrule her second and third assignments of error. We
OHIO FIRST DISTRICT COURT OF APPEALS
vacate her sentences and remand the case for resentencing at which the state must
elect which of the allied offenses it will pursue against her. In all other respects, we
affirm the trial court’s judgment.
[CITATION].
BOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
======
[CITATION]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: G.W. : APPEAL NO. C-230268
TRIAL NO. F17-28X
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 24, 2024
Charles H. Bartlett, Jr., for Appellant Father,
The Helbling Law Firm, LLC, and John J. Helbling, for Appellee Mother. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} This case arises from a custody dispute between appellant (“Father”)
and appellee (“Mother”) over their minor daughter, G.W. On appeal, Father argues
that the juvenile court erred by denying his motion to hold Mother in contempt for
violating a court-approved shared-parenting plan and by awarding Mother custody of
G.W. Because the record supports the juvenile court’s determinations that Mother
substantially complied with the terms of the shared-parenting plan and that awarding
Mother custody of G.W. was in the child’s best interest, we affirm the juvenile court’s
judgment and overrule Father’s assignments of error.
I. FACTS AND PROCEDURE
A. The shared-parenting plan and the parties’ motions
{¶2} In March 2018, the juvenile court approved an agreed shared-parenting
plan (“SPP”) under which the court granted Mother and Father equal legal and
residential custody of G.W. The SPP provided, “[e]ach parent shall be entitled to speak
with or otherwise communicate with their minor child at all reasonable times.” It
required Mother and Father to mediate “any major disagreement between them
relating to the minor child” before any court hearing and to “consult as to the
appropriate school placement for the minor child.” Finally, the SPP stated, “[n]either
parent shall enroll their child in any school or non-school extracurricular activities
and/or sports without the agreement of the other party. * * * Neither parent shall
enroll the child in more than one non-agreed upon activity.”
{¶3} In October 2019, Mother moved to terminate the SPP and sought sole
custody of G.W. Her motion additionally requested that the court hold Father in
contempt for failing to follow the SPP. Likewise, in December 2019, Father moved to
OHIO FIRST DISTRICT COURT OF APPEALS
terminate the SPP and sought legal and residential custody of G.W. In 2020, Father
petitioned the court to find Mother in contempt for failing to follow the SPP and moved
for sole custody of G.W.
B. Magistrate hearing
{¶4} After the court approved the SPP, G.W. split time between Mother and
Father. Mother had lived in Colerain Township for nine years with her other daughter,
Z.T., who was born in 2013. Father lived in St. Bernard when he signed the SPP. He
moved to Harrison, Ohio, with his wife, their infant child, and his wife’s son from a
prior marriage. Father has since moved to Indiana.1
{¶5} Regarding the logistics of G.W.’s medical care, for a time, Mother
provided health insurance for G.W. through her service with the Ohio National Guard.
Father testified that on multiple occasions, he asked Mother to provide him with a
copy of her insurance card, but she never delivered. Mother explained that her
insurance information was contained on her military identification card, which she
could not copy per military policy. Mother testified that whichever parent was with
G.W. at the time a medical appointment needed to be scheduled would make her
medical appointments and then tell the other parent about the appointment.
{¶6} While both parents initially agreed that G.W. would attend preschool,
after the onset of the Covid-19 pandemic, Father objected to G.W. attending preschool.
He cited his concern for his mother and father, both of whom had health issues. As a
result of Father’s objections, G.W. did not attend preschool during the 2020-2021
1 At the hearing, Father testified that he lived in Harrison and though he wanted to move to Indiana,
he had not done so. But both the magistrate’s and juvenile court’s decisions state that Father had
moved to Indiana. It is unclear from the record if or when Father moved to Indiana. But because
Father does not challenge this finding and the juvenile court expressly gave Father’s move to
Indiana no weight, this issue is immaterial to our review.
OHIO FIRST DISTRICT COURT OF APPEALS
school year. When the 2021-2022 school year came around, Father again objected to
G.W. attending preschool. Mother, however, enrolled G.W. in a preschool in her
[SEGMENT 27]
district. (Mother also contacted a preschool in Harrison, Ohio, near Father, but the
preschool was not accepting new students.) During that school year, Mother took G.W.
to preschool during her parenting time. Father did not take G.W. to preschool during
his parenting time.
{¶7} From 2019 through 2022, Mother signed G.W. up for several
extracurricular activities, to which Father objected, partly due to his concerns with the
Covid-19 pandemic. In 2019, Mother asked Father if he would consent to G.W.
participating in gymnastics. While Father objected, Mother, believing that the SPP
allowed either parent to enroll G.W. in one extracurricular at a time over the objection
of the other parent, signed G.W. up for gymnastics. In 2020, G.W. quit gymnastics and
Mother enrolled her in ballet. In 2021, Mother asked Father to consent to G.W.
participating in T-ball as well as ballet. But because Father objected, Mother did not
register G.W. in T-ball. In 2022, G.W. quit ballet and resumed gymnastics. Mother
again asked Father if he would consent to G.W. participating in T-ball and Father again
objected. Though Father objected to T-ball, Mother testified that she signed G.W. up
for T-ball because she believed that T-ball would not overlap with cheerleading, a new
activity for which Mother had registered G.W. As it turned out, T-ball overlapped with
gymnastics and T-ball games fell on one of Father’s days with G.W.
C. The magistrate’s and juvenile court’s decisions
{¶8} Following the hearing, the magistrate granted both parties’ request to
terminate the SPP, denied both parties’ motions for contempt, and granted Mother
sole custody of G.W.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Regarding custody, the magistrate noted that R.C. 3109.04(F)(1) sets
forth the factors to consider in determining the child’s best interest and found that
R.C. 3109.04(F)(1)(d), “the child’s adjustment to the child’s home, school, and
community,” was most applicable and weighed in favor of Mother. And the magistrate
found that neither Mother’s nor Father’s actions rose to the level of contempt. Father
objected to the magistrate’s decision.
{¶10} In April 2023, the juvenile court overruled Father’s objections and
adopted the magistrate’s decision. The juvenile court, like the magistrate, found that
R.C. 3109.04(F)(1)(d) weighed in favor of Mother, noting that G.W. had spent nearly
a full school year at the school in Mother’s district. The juvenile court found that
Mother substantially complied with the SPP and denied both parties’ contempt
motions. The court terminated the SPP, awarded Mother legal custody of G.W., and
awarded the parties equal parenting time.
II. LAW AND ANALYSIS
{¶11} Father raises two assignments of error: The trial court erred by (1)
failing to hold Mother in contempt, and (2) awarding Mother custody of G.W.
A. The trial court correctly denied Father’s contempt motion
{¶12} In asserting that the trial court erroneously denied his contempt
motion, Father argues that Mother testified that she failed to give Father a copy of her
insurance card despite multiple requests, did not consult with Father before making
medical and dental appointments, allowed G.W. to sleep in the same bed as Mother,
interfered with Father’s phone calls to G.W., and failed to use mediation to resolve
disagreements with Father.
```plaintext
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} An appellate court reviews a trial court’s ruling on a contempt motion
for an abuse of discretion. [CITATION], ¶ 19, citing [CITATION], ¶ 4. A court abuses its discretion when its judgment is
unreasonable, arbitrary, or unconscionable. [CITATION]. A court has broad discretion to determine whether
a party violated its orders and what conduct constitutes contempt. [CITATION].
{¶14} Parents subject to a custody order may seek a contempt finding when
the other party interferes or fails to comply with the order. R.C. 2705.031(B)(2). A
moving party establishes a prima facie case of civil contempt by proving, by clear and
convincing evidence, the nonmoving party’s failure to comply with an existing order.
[CITATION], quoting [CITATION]. Once the movant establishes a prima facie case
of contempt, the burden shifts to the nonmovant to establish a defense for the
noncompliance. [CITATION]. A party’s substantial compliance with a court order can
serve as a defense to a contempt finding. See [CITATION]; see also [CITATION], ¶ 14. A technical violation of
a court’s order does not necessarily require a contempt finding. [CITATION], ¶ 13.
{¶15} The record supports the juvenile court’s finding that Mother
substantially complied with its order. Regarding the health-insurance card, the
juvenile court credited Mother’s explanation that Mother could not provide Father
with a copy of her insurance card due to military policy prohibiting her from copying
the card. Moreover, Mother testified that she attempted to provide Father with her
``` OHIO FIRST DISTRICT COURT OF APPEALS
insurance account numbers and made herself available for Father to call her so that
she could give medical providers her insurance information over the phone. As to
Mother’s failure to mediate, Father never moved to compel mediation. Further,
Mother and Father, with their attorneys, met several times to attempt to resolve
disputes. Next, regarding Mother’s enrolling G.W. in preschool, she agreed to forego
preschool for the 2020-2021 year and attempted to consult with Father for the 2021-
2022 school year. Notably, the SPP did not expressly require that the parties agree to
G.W.’s school placement—instead, the plan required the parties to “consult.” Finally,
there was conflicting evidence involving whether Mother interfered with Father’s
telephone calls with G.W. and the court was entitled to believe Mother’s testimony
over Father’s.
{¶16} The juvenile court, which was in the best position to judge the witnesses’
credibility and weigh the evidence, determined that Mother was not in contempt of the
SPP. The trial court was well within its discretion to deny Father’s motion for
contempt. We overrule Father’s first assignment of error.
B. The juvenile court’s custody order was not an abuse of discretion
{¶17} Father argues in his second assignment of error that the juvenile court
erred in determining that awarding Mother custody of G.W. was in G.W.’s best
interest. First, Father argues that the court rewarded Mother for contumacious
behavior by placing weight on G.W.’s adjustment to her school when Mother enrolled
G.W. over Father’s objections. Second, Father argues that the juvenile court failed to
consider which parent is “more likely to honor and facilitate court-approved parenting
time rights or visitation and companionship rights” as required by R.C.
3109.04(F)(1)(f).
OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} An appellate court reviews a juvenile court’s custody determination for
an abuse of discretion. [CITATION]. Custody decisions are among the “most difficult and agonizing decisions” that juvenile
courts make. [CITATION], ¶ 14. Juvenile courts enjoy broad discretion in crafting those
decisions because the knowledge gained through observing the witnesses “cannot be
conveyed to a reviewing court by a printed record.” [CITATION], citing [CITATION]. But that discretion is “not absolute;
the court must follow the procedures described in R.C. 3109.04 when making custody
decisions.” [CITATION], ¶ 7, citing [CITATION].
{¶19} When terminating a shared-parenting plan, the juvenile court is
required to allocate parental rights and responsibilities “as if no decree for shared
parenting had been granted and as if no request for shared parenting ever had been
made.” R.C. 3109.04(E)(2)(d). When allocating parental rights, the juvenile court
must consider the best interest of the child based on “all relevant factors” including
those listed under R.C. 3109.04(F)(1) and (2). Relevant here, those factors include:
(d) The child’s adjustment to the child’s home, school, and community;
***
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
***
OHIO FIRST DISTRICT COURT OF APPEALS
(i) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the other
parent’s right to parenting time in accordance with an order of the court.
R.C. 3109.04(F)(1).
{¶20} The juvenile court expressly set out the required factors under R.C.
3109.04(F)(1) and (2), applied those factors, and found that it was in G.W.’s best
interest to award custody to Mother. The juvenile court discussed the relevant factors
and explained why certain factors did not apply and why other factors did not weigh
in favor of either parent.
[SEGMENT 28]
{¶21} The juvenile court found that, under [CITATION], G.W.’s
adjustment to her school in Mother’s district weighed in favor of granting custody to
Mother. Though Father argues this finding rewards Mother for her contumacious
behavior in enrolling G.W. in school over his objections, the juvenile court correctly
found that Mother’s conduct did not constitute contempt. Further, [CITATION]’s
focus is on G.W.’s best interest, not whether either parent should be “rewarded” with
custody. [CITATION] required the juvenile court to consider only whether
G.W. had adjusted well to her school and community. The juvenile court, noting that
G.W. had attended the school in Mother’s district for almost a year, found that G.W.
had adjusted well to the school. That finding was supported by the record.
{¶22} While Father asserts that G.W. could have adjusted just as well to a
school in his district, G.W. was never enrolled in his district, so the juvenile court could
not have found G.W. adjusted well to a school in Father’s district. In determining what
is in a child’s best interest, juvenile courts consider “the present circumstances, not *
* * what possibly may happen in the future” or what might have hypothetically
OHIO FIRST DISTRICT COURT OF APPEALS
happened if events had transpired differently. [CITATION]
{¶23} Finally, Father argues that the juvenile court failed to consider which
parent is “more likely to honor and facilitate court-approved parenting time rights or
visitation and companionship rights” as required by R.C. 3109.04(F)(1)(f). Mother
argues that Father failed to raise this argument in his objections to the magistrate’s
decision and therefore waived it. Father failed to address the waiver issue and did not
develop a plain-error argument.
{¶24} “Except for a claim of plain error, a party shall not assign as error on
appeal the court’s adoption of any factual finding or legal conclusion * * * unless the
party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).”
Juv.R. 40(D)(3)(b)(iv). All objections to a magistrate’s decision must be “specific and
state with particularity the grounds for objection.” Juv.R. 40(D)(3)(b)(ii). “When an
appellant fails to develop a plain-error analysis, the appellate court need not create
one on the appellant’s behalf and may decline to reach the merits of the claim.” [CITATION], citing [CITATION]. Here, Father’s
objections and supplemental objections did not argue that the magistrate failed to
consider R.C. 3109.04(F)(1)(f). Because Father did not raise this argument below and
has not developed a plain-error analysis, this court declines to reach the merits of this
argument.
{¶25} The juvenile court weighed the evidence, considered the relevant factors
under R.C. 3109.04(F), and determined that awarding custody to Mother was in
G.W.’s best interest. That decision was supported by competent credible evidence.
OHIO FIRST DISTRICT COURT OF APPEALS
While there was competing evidence about what was in G.W.’s best interest, the
juvenile court was in the best position to weigh that evidence and decide what was in
G.W.’s best interest. We hold that the juvenile court’s awarding Mother custody of
G.W. was not an abuse of discretion and we overrule Father’s second assignment of
error.
III. CONCLUSION
{¶26} We overrule Father’s assignments of error and affirm the juvenile
court’s judgment.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
======
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230275
TRIAL NO. B-2202579
Plaintiff-Appellee, :
O P I N I O N.
vs. :
KENDRA FRENCH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 3, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Brian A. Smith Law Firm, LLC, and Brian A. Smith, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Kendra French appeals from the trial court’s
judgment convicting her, after a bench trial, of felonious assault. French argues that
her conviction was against the manifest weight of the evidence, contending that the
evidence demonstrated that she had acted in self-defense. She further argues that the
trial court’s exclusion of a witness’s prior criminal history was an abuse of discretion
and a violation of her rights to due process, a fair trial, and to confront and cross-
examine witnesses under the United States and Ohio Constitutions.
{¶2} Because French’s belief of imminent bodily harm was not objectively
reasonable, the state disproved self-defense beyond a reasonable doubt, and her
conviction was therefore not against the manifest weight of the evidence. And because
French’s counsel did not actually impeach the witness regarding his prior criminal
history, the trial court properly excluded this testimony. Accordingly, we overrule
French’s assignments of error and affirm the judgment of the trial court.
Factual and Procedural Background
{¶3} French was charged with two counts of felonious assault in violation of
R.C. 2903.3(A)(1) and (2) in connection with a May 28, 2022 shooting that resulted in
injuries to French’s neighbor, F.H. The case proceeded to a bench trial on March 14,
2023.
{¶4} At the bench trial, F.H. testified that she lived at an apartment complex
on Losantiville Avenue and that French lived in the unit below her. The Losantiville
apartment complex had four units in total, with two units on each floor. There was an
orange-tiled landing at the entrance, with a set of stairs that led up to the first set of
OHIO FIRST DISTRICT COURT OF APPEALS
apartment units on the right side and a door to a set of stairs leading down to the
basement and garage on the left side.
{¶5} F.H. testified that she and French had a contentious relationship and
that she frequently asked French to keep the noise down to no avail. On the evening
of May 28, 2022, F.H. and her boyfriend, Anthony Jackson, pulled into the driveway
of the apartment complex after getting groceries and they saw that French and her
friend, Warren Bratcher, were seated on a ledge near the garage. According to F.H.,
Jackson and Bratcher began arguing first, and then French squared up to fight F.H.
At that point, all four parties engaged in a physical altercation.
{¶6} After the fight broke up, F.H. and Jackson dropped off their groceries to
F.H.’s apartment. F.H. testified that when she and Jackson went back downstairs to
get the rest of the groceries, French shot her in the face as F.H. opened the door that
led to the basement and garage.
{¶7} F.H. testified that she was transported to the hospital after Jackson
called 911, where she was diagnosed with maxillary and mandible fractures. She also
testified that she did not initiate the first altercation with French and that she did not
have any weapons that night. On cross-examination, she admitted that she provided
a statement at the hospital that she heard a knock on her door and was shot when she
answered, which contradicted her testimony at trial.
{¶8} Jackson also testified at trial. He testified that when he and F.H. pulled
into the driveway, French said something that led to the first physical altercation
between French and F.H. According to Jackson, he tried to break them up, but
Bratcher hit him, and he fell to the ground. Jackson also testified that F.H. was shot
at the bottom of the basement stairs after he had gone back downstairs with her to get
OHIO FIRST DISTRICT COURT OF APPEALS
more groceries. But in an interview with the police, Jackson stated they had barely
gotten the key in the front door when F.H. was shot, which seemingly implied they
were upstairs by F.H.’s apartment. In his testimony, Jackson also denied having
weapons that day, either on his person or in F.H.’s apartment.
{¶9} On cross-examination, French’s counsel tried to elicit testimony from
Jackson regarding a prior conviction for domestic violence. Though Jackson was
charged with domestic violence, he clarified that he was not sentenced to prison and
that he was not convicted of a crime punishable by more than a year. The state
objected to this testimony, and the trial court struck Jackson’s answer, because
Jackson’s conviction was not a felony or a crime of dishonesty in the last ten years.
[SEGMENT 29]
Following the state’s objection, there were no further questions on the issue by
French’s counsel.
{¶10} Detective Jacquelyn Metz also testified at trial. Metz indicated that she
interviewed French, French’s brother, and Jackson at the crime scene, which she also
canvassed. On the orange-tiled landing, she found a shell casing and a human tooth,
and upstairs she found human blood and teeth. Though not qualified as an expert
witness, she testified that, based on her experience, she believed the shell casing came
from a handgun.
{¶11} Detective Charles Zopfi was an additional witness for the state at trial.
Zopfi testified that he interviewed F.H. at the hospital and that she identified French
as the person who had shot her. Per Zopfi’s testimony, he also interviewed French in
the early hours of the morning on May 29, 2022. As Zopfi told the court, according to
French in this interview, she shot F.H. when F.H. lunged down the stairs at French.
Zopfi relayed that French did not recall seeing a weapon on F.H., but that French was
OHIO FIRST DISTRICT COURT OF APPEALS
carrying her gun with her throughout the altercation. According to Zopfi, French also
told him that she had a history of disagreements with F.H., that she had a license to
carry a concealed weapon, and that she believed Jackson had a gun on the night of the
shooting.
{¶12} When the trial court took a recess during Zopfi’s testimony, French’s
counsel observed Zopfi and Officer Christian Russ discussing the case, ostensibly in
violation of a court order separating the witnesses. Zopfi averred that it was a lapse in
judgment and no relevant information was exchanged. At the request of defense
counsel, the trial court admonished the witnesses not to speak to each other.
{¶13} On cross-examination, Zopfi denied that the lack of physical evidence in
the basement was significant. Zopfi clarified that, according to F.H., she was coming
up from the basement and going onto the orange-tiled landing when she was shot.
Based on this, Zopfi contended it would not make sense to find blood stains in the
basement. Zopfi also acknowledged that he interviewed F.H. again two days after the
incident without recording the interview, turning on his body-worn camera, or taking
notes.
{¶14} Russ testified at trial that on the evening of the shooting, he found
French sitting on the front curb of the apartment complex with a bloody nose.
According to Russ, French said, “I am the one that shot her.” Russ testified that he
and another officer retrieved French’s gun, which was empty. They then placed French
in custody.
{¶15} At the close of the state’s case, French moved for an acquittal under
Crim.R. 29. The trial court denied this motion.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} French testified at trial. She testified that she and F.H. often had
disagreements. French further testified that she frequently heard F.H. and Jackson
getting into verbal and physical altercations. She believed that Jackson had a gun in
F.H.’s apartment, although she had never seen it.
{¶17} According to French, it was Jackson who initiated the first altercation
on the night of shooting. She maintained that F.H. made physical contact with her
first by pulling her hair. French contended that Bratcher broke up the first fight.
French further testified that her gun was in her waistband the whole time and that she
did not pull out her gun during the first altercation because she did not feel threatened
at that point.
{¶18} French indicated that she and Bratcher waited outside for a few
moments after the first altercation. French testified that when they went inside, F.H.
lunged at her from the top of the stairs. French testified that because she thought that
F.H. may have gotten a gun from Jackson, she shot F.H. as she lunged at her.
According to French, this caused F.H. to fall backwards. French indicated that F.H.
then bounced up and ran to her apartment. French further testified that she intended
to turn herself into the police to show that she was not guilty and had acted in self-
defense.
{¶19} Bratcher also testified at trial. He testified that Jackson attacked him
first. He heard a shot fired, but did not see anything. He left the scene after hearing
the shot. He also recalled telling French she should not have done what she did while
she was being arrested.
{¶20} The following exhibits were moved into evidence at trial: surveillance
videos submitted by an anonymous neighbor to the police, a recording of Jackson’s
OHIO FIRST DISTRICT COURT OF APPEALS
interview with Metz, and the body-worn camera footage of an unidentified officer on
the scene that evening.
{¶21} These exhibits demonstrate a number of key facts. For example, though
one of the surveillance videos was mostly obstructed by shrubbery and fencing, the
other surveillance video showed two pairs of individuals fighting by the garage, with
one individual falling, as [CITATION] had testified, and another individual having her hair
pulled, as [CITATION] had testified. In addition, in [CITATION]’s interview with Metz, [CITATION]
stated that [CITATION] was trying to get her gun from the car following the first altercation,
but that [CITATION] stopped her. He also indicated that [CITATION] and [CITATION] started the
fight. In the body-worn camera footage, blood splatters were visible near F.H.’s unit,
but not in the basement. Additionally, an officer is seen commenting in the body-worn
camera footage that a tooth and casing were found on the orange-tiled landing.
{¶22} Following the presentation of the defense case, [CITATION] renewed her
Crim.R. 29 motion, which the trial court denied again. The trial court found that F.H.
was the initial aggressor in the first altercation, that [CITATION] had time to get her gun
from her car following the first altercation, that [CITATION] was standing on the orange-
tiled landing when the shooting occurred, and that F.H. was standing at the top of the
steps above the orange-tiled landing. The trial court found that [CITATION] had an honest
belief that she was in danger, but that her perception of the threat from F.H. lunging
at her without a visible weapon was not reasonable. Further, the trial court found that
[CITATION]’s use of force was disproportionate to the danger she perceived.
{¶23} The trial court ultimately found [CITATION] guilty as charged and sentenced
her to five-to-six years of incarceration. She now appeals.
OHIO FIRST DISTRICT COURT OF APPEALS
Self-Defense
{¶24} In her first assignment of error, French argues that her conviction was
against the manifest weight of the evidence, because, she contends, the evidence
showed she acted in self-defense.
{¶25} “[I]n evaluating a manifest weight challenge involving self-defense, we
must review the entire record, consider the credibility of witnesses, and determine
whether the trier of fact clearly lost its way and created a manifest miscarriage of
justice with respect to its finding that the state disproved at least one of the elements
of self-defense beyond a reasonable doubt.” [CITATION]. To disprove self-defense, the state must establish
“beyond a reasonable doubt that the defendant: (1) was at fault in creating the
situation giving rise to the affray; (2) did not have reasonable grounds to believe or an
honest belief that he or she was in imminent danger of bodily harm; or (3) violated a
duty to retreat or avoid danger.” Id. at ¶ 11.
{¶26} “The test for a bona fide belief of imminent bodily harm is both objective
and subjective: whether the defendant’s belief is objectively reasonable and whether
the defendant subjectively had an honest belief of imminent bodily harm.” [CITATION] at ¶ 29.
{¶27} Here, the trial court found that French subjectively had an honest belief
of imminent bodily harm. In reaching this conclusion, the trial court accepted
French’s version of events. It agreed with French that F.H. was the initial aggressor
and that F.H. lunged at her from the top of the landing. But it did not find that French’s
honest belief was objectively reasonable.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶28} French argues that it was objectively reasonable, because it was
plausible that F.H. had a gun in light of Jackson’s prior criminal history and that F.H.
could have reached for that gun when she lunged at French. She further argues that
Jackson and F.H. were not credible, that it was illogical that there were no bloodstains
in the basement, and that her gun was on her person the entire evening. She also takes
issue with Zopfi and Russ’s discussion of the case in violation of the trial court order
requiring the separation of witnesses.
{¶29} The trial court found that French’s use of a gun was disproportionate to
any apparent danger perceived from F.H. lunging down the stairs. F.H. and Jackson
[SEGMENT 30]
denied having weapons that day. Though French challenges their credibility, “it is well
settled law that matters as to the credibility of witnesses are for the trier of fact to
resolve.” [CITATION] “Because the trier of fact sees and hears the witnesses at trial, we must defer to the
factfinder’s decisions whether, and to what extent, to credit the testimony of particular
witnesses.” Id. Therefore, we defer to the trial court’s finding that F.H. was not armed
and that French’s use of a gun was disproportionate.
{¶30} French’s contention that the lack of physical evidence in the basement
disproves F.H.’s version of events is rebutted by Zopfi’s evidence. Zopfi clarified that
F.H. did not mean she was in the basement when she was shot. Rather, F.H. was by
the orange-tiled landing, and it would therefore make sense that physical evidence was
found in the landing and not in the basement.
{¶31} French also fails to explain how the conversation between Russ and
Zopfi affected the outcome of her case. Although French argues that this impacted
their credibility, the court credited her version of events, not theirs. Additionally, the
OHIO FIRST DISTRICT COURT OF APPEALS
trial court admonished Russ and Zopfi to stop talking to each other and confirmed that
nothing of consequence was discussed.
{¶32} Thus, the trial court did not lose its way in finding that the state
disproved that French had reasonable grounds to believe she was in imminent danger
of bodily harm. We therefore overrule French’s first assignment of error.
Evid.R. 609
{¶33} In her second assignment of error, French argues that the trial court
abused its discretion in excluding evidence of Jackson’s prior criminal history.
{¶34} “A trial court’s decision to admit or exclude evidence is reviewed for an
abuse of discretion.” [CITATION], ¶ 6. Evid.R. 609 governs impeachment of a witness’s credibility through the
admission of evidence of a prior criminal conviction, which is either a crime of
dishonesty or a crime that is punishable by death or more than one year of
imprisonment. Evid.R. 609(A). The conviction may be proven only by the witness’s
testimony or by public record shown to the witness during his or her examination.
Evid.R. 609(F).
{¶35} Here, however, French’s counsel failed to actually impeach Jackson
with a prior conviction. The following exchange occurred during Jackson’s cross-
examination:
FRENCH’S COUNSEL: Have you been convicted of a crime punishable
by more than one year in prison in the last ten years?
JACKSON: Is you talking about like domestic violence or something like
that? Yeah.
FRENCH’S COUNSEL: Yes.
OHIO FIRST DISTRICT COURT OF APPEALS
JACKSON: But I haven’t been to prison, no.
FRENCH’S COUNSEL: Okay. What I’m asking is have you been
convicted of something punishable by more than one year?
JACKSON: No.
FRENCH’S COUNSEL: And even if you didn’t get a year, potentially
punishable by more than a year in prison?
JACKSON: No.
***
STATE: Objection, Your Honor, to the relevance of any sort of prior
domestic violence between [F.H.] and Anthony Jackson.
***
TRIAL COURT: Right. The conviction was not for a felony or a crime of
dishonesty in the last ten years. It’s inadmissible, so I’ll strike the
answer.
FRENCH’S COUNSEL: Fair enough.
{¶36} Considering Jackson’s responses to French’s counsel’s questions,
Jackson never indicated that he had in fact been convicted of the requisite crime as
required by Evid.R. 609(F). While Jackson indicated he had been convicted of
domestic violence, he denied having gone to prison at all for this crime and further
denied having any criminal conviction whatsoever for which he faced more than a year
in prison. Following Jackson’s answers, French’s counsel did not use a public record
of the conviction to impeach Jackson as Evid.R. 609(F) contemplates. Instead, when
the state objected, and the trial court struck Jackson’s answer, French’s counsel agreed
to move on. Thus, because Jackson was never properly impeached under either of the
OHIO FIRST DISTRICT COURT OF APPEALS
methods for proving a prior conviction under Evid.R. 609(F), the trial court did not
abuse its discretion in excluding evidence of [CITATION]’s criminal history.
{¶37} Accordingly, we overrule [CITATION]’s second assignment of error.
Conclusion
{¶38} For the reasons set forth above, the trial court’s finding that [CITATION]’s
honest belief of imminent bodily harm was objectively unreasonable was not against
the manifest weight of the evidence. Further, because [CITATION]’s counsel did not
actually impeach [CITATION] under Evid.R. 609, the trial court did not abuse its
discretion in excluding evidence of [CITATION]’s prior conviction. Accordingly, [CITATION]’s
assignments of error are overruled, and the trial court’s judgment is affirmed.
Judgment affirmed.
ZAYAS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
[Cite as [CITATION].]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230288
C-230318
Plaintiff-Appellee, : TRIAL NO. B-1900989
vs. :
O P I N I O N.
ELTON WHITTLE, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 20, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Robinson & Brandt, P.S.C., and Jeffrey M. Brandt, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Elton Whittle was originally indicted on one count
of trafficking in heroin, one count of possession of heroin, three counts of trafficking
in a fentanyl-related compound, three counts of possession of a fentanyl-related
compound, one count of trafficking in cocaine, one count of possession of cocaine, one
count of trafficking in drugs, and one count of possession of drugs. A jury returned
guilty verdicts on all 12 counts.
{¶2} At the sentencing hearing, the trial court and the parties indicated that
an 11-year sentence was mandatory. The court sentenced Whittle to 11 years in prison
on count three, trafficking in a fentanyl-related compound. For reasons not apparent
in the record, it then merged all the other counts into count three. These appeals
followed.
Factual Background
{¶3} In July of 2017, Officer Scott Brians of the Cincinnati Police Department
received information from security officers at Cincinnati Children’s Hospital Medical
Center (“Children’s Hospital”) about drug sales occurring on Winslow Avenue
adjacent to the hospital’s parking garage. They reported that a black man was
conducting hand-to-hand drug transactions out of a Chevrolet Malibu that was parked
on Winslow. They also provided Officer Brians with the license plate number of that
car. After checking with the Bureau of Motor Vehicles (“BMV”), he found that it was
registered to 2840 Winslow Avenue, Apartment B.
{¶4} In early August 2017, Officer Brians met with a reliable, confidential
informant identified as “CI#1.” CI#1 told him that the suspect in the ongoing drug
sales went by the street name “E” and used a specific telephone number. CI#1 also
said that E used a gold Dodge Durango when making the sales. Officer Brians located
OHIO FIRST DISTRICT COURT OF APPEALS
a vehicle matching that description parked on Winslow Avenue and obtained its
license plate number. After checking that license plate with the BMV, he learned that
it was also registered to 2840 Winslow Avenue, Apartment B. A check of the Regional
Crime Information Center database revealed that Whittle, who had numerous drug-
related arrests, was attached to that license plate number. After seeing a BMV photo
of Whittle, CI#1 confirmed that Whittle was the person he knew as E, who was selling
drugs.
{¶5} On August 25, 2017, officers met with another reliable confidential
informant identified as “CI#3” to arrange a controlled purchase of drugs from E.
Officer Brians monitored a call from CI#3 to E using the phone number he had
obtained from CI#1. E directed CI#3 to meet him at a gas station at the corner of
Reading Road and East Martin Luther King Drive. Officers saw Whittle arrive in a
gold Dodge Durango with the previously identified license plate number. Whittle got
out of the vehicle, approached CI#3, and engaged in a hand-to-hand transaction.
[SEGMENT 31]
Subsequently, the officers met with CI#3 and recovered the drugs that CI#3 had
purchased, which were later identified as a heroin/fentanyl mix.
{¶6} On September 5, 2017, the officers arranged another controlled
purchase. Officer Brians monitored a call from CI#3 to Whittle to arrange a purchase
of heroin/fentanyl. Whittle directed CI#3 to go to Winslow Avenue. At that meeting,
the officers saw Whittle go to a side door at 2840 Winslow Avenue, retrieve something
from inside the door, approach CI#3, and engage in a hand-to-hand transaction. The
officers recovered the drugs purchased by CI#3, which were later identified to be a
heroin/fentanyl mix.
{¶7} On October 30, 2017, a security officer at Children’s Hospital again
called police to report ongoing drug sales at 2840 Winslow Avenue and described the
seller. That description was consistent with the police officers’ observations of
OHIO FIRST DISTRICT COURT OF APPEALS
Whittle. The security officer also stated that the seller lived in an apartment inside
2840 Winslow Avenue and drove a gold Dodge Durango, with the previously identified
license plate, which was parked in the driveway of 2840 Winslow Avenue.
{¶8} Brians stated that the investigation of Whittle’s drug sales was put on
hold for several months when higher priority cases arose. On March 28, 2018, officers
monitored a phone call between another confidential informant identified as “CI#2”
at the same phone number as the previous buys. Whittle directed CI#2 to the gas
station at the corner of Reading Road and Martin Luther King Drive. Whittle drove
up in the gold Dodge Durango with the previously identified license plate. He got out,
approached CI#2, and engaged in a hand-to-hand drug transaction. Once again, the
officers recovered drugs later identified as a heroin-fentanyl mix. When shown a
picture of Whittle, CI#2 identified Whittle as the person who had sold the drugs.
{¶9} On February 6, 2019, a source of information identified as “SI#1”
informed officers that a trafficker known as E, using the same phone number, sold
narcotics out of 2840 Winslow Avenue, Apartment B. SI#1 also told them that E was
driving a silver Toyota Avalon with tinted windows. When shown a photo of Whittle,
SI#1 identified Whittle as E.
{¶10} Officers conducted surveillance at 2840 Winslow Avenue and saw a
silver Toyota Avalon with tinted windows parked in the driveway. They saw Whittle
come out of the building, get into the Toyota and drive away. A short time later, he
returned and used keys to enter the building. A BMV check revealed that the Toyota
was registered to Whittle at the Winslow Avenue address. On February 20, 2019, the
officers saw Whittle get out of the Toyota in the parking lot of a drive-through, engage
in a hand-to-hand transaction, and then get back into the vehicle.
{¶11} Based on the information the officers had obtained, Officer Brians
obtained a search warrant to search the premises at 2840 Winslow Avenue, which had
OHIO FIRST DISTRICT COURT OF APPEALS
four apartments, two on each floor. The warrant stated that apartment B was on the
top northwest corner. It also allowed the officers to search the Dodge Durango and
the Toyota Avalon.
{¶12} Police officers executed the warrant on February 22, 2019. In the
apartment at the northwest corner of the building, they found mail with Whittle’s
name and address on it, fentanyl packaged for sale, packaging material, “ripped up”
lottery tickets, numerous handguns and ammunition, seven cell phones, cash, pills,
heroin, marijuana and digital scales. In the basement’s common area, officers found
more torn lottery tickets and torn plastic baggies, both of which are commonly used to
package drugs. They also found a digital scale, a piece of mail and a traffic ticket with
Whittle’s name on them, and bags of heroin and fentanyl on the top of a bookshelf. A
drug dog alerted to an unlocked storage unit marked “C,” the door of which was
opened. Inside, the officers recovered heroin, fentanyl from the pocket of a gray and
black shirt, a 12-gauge shotgun, and several handguns.
{¶13} Whittle was indicted on one count of trafficking in heroin, one count of
possession of heroin, three counts of trafficking in a fentanyl-related compound, three
counts of possession of a fentanyl-related compound, one count of trafficking in
cocaine, one count of possession of cocaine, one count of trafficking in drugs, and one
count of possession of drugs. He subsequently filed a motion to suppress, in which he
alleged the search was improper because the warrant allowed police to search
apartment B, but they had actually searched apartment D, and the warrant did not
allow the officers to search in the basement anywhere but the storage bin for
apartment B. The trial court overruled the motion.
{¶14} Following a jury trial, Whittle was found guilty of all 12 counts charged
in the indictment. The trial court sentenced him on count three, which was trafficking
in a fentanyl-related compound under R.C. 2925.03(A)(2), and merged the other
OHIO FIRST DISTRICT COURT OF APPEALS
counts. As required by R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b), the trial court
sentenced Whittle to a mandatory 11 years in prison. This appeal followed.
Search-Warrant Issues
{¶15} Whittle presents six assignments of error for review. In his first
assignment of error, he contends that the trial court erred by failing to grant his motion
to suppress. He argues that the search warrant failed to accurately and particularly
describe the residence to be searched, no probable cause existed that evidence would
likely be found in the residence to be searched, and that the officers failed to act in
good faith by entering the incorrect residence rather than seeking a new and accurate
warrant once they learned that the description of the property was inaccurate. This
assignment of error is not well taken.
{¶16} Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard. [CITATION].
{¶17} To establish probable cause to issue a search warrant, the supporting
affidavit must contain sufficient information to allow a magistrate to draw the
conclusion that evidence is likely to be found at the place to be searched. [CITATION], ¶ 11 (1st Dist.). Probable cause
exists when a reasonably prudent person would believe that a fair probability exists
that the place to be searched contains evidence of a crime. [CITATION], paragraph one of the syllabus; [CITATION]. “[I]t is
clear that ‘only the probability, and not prima facie showing, of criminal activity is the
OHIO FIRST DISTRICT COURT OF APPEALS
standard of probable cause.’ ” (Emphasis deleted.) [CITATION], quoting [CITATION].
{¶18} A reviewing court, which includes a trial court ruling on a motion to
suppress, as well as an appellate court, must give great deference to the magistrate’s
probable-cause determination. [CITATION]. “[A]fter-the-fact
scrutiny by the courts of the sufficiency of an affidavit should not take the form of de
novo review.” [CITATION], quoting [CITATION]. Our duty is to ensure that the
issuing magistrate had a substantial basis for concluding that probable cause
existed. See [CITATION]. Doubtful or marginal cases should be
resolved in favor of upholding the warrant. [CITATION].
{¶19} A search warrant and its supporting affidavit must particularly describe
the place to be searched. Crim.R. 41(C); [CITATION]. Because a search warrant and supporting affidavit
usually contain more information than just an address to identify the place to be
searched, a search warrant is not necessarily invalid if it describes the property to be
searched with an incorrect address. [CITATION]. To determine whether a
property description is constitutionally valid, the trial court must determine whether
the place to be searched is described with sufficient particularity to enable the
executing officer to locate and identify the premises with reasonable effort and
whether there is a reasonable probability that another premises might be mistakenly
searched. [CITATION].
{¶20} As to the place to be searched, the warrant stated:
OHIO FIRST DISTRICT COURT OF APPEALS
Winslow Avenue #B, Cincinnati Ohio, 45206. Further described
as a two story red brick multi-family building with red trim Entry to the
building is thru [sic] a white steel door on the west side of the building.
Entry to apartment B will be thru [sic] a brown wooden door with the
letter B affixed to it located on the second floor, North West corner.
{¶21} At the hearing on the motion to suppress, Officer Brians testified that
before the execution of the search warrant, he knew that Whittle’s mother lived in the
[SEGMENT 32]
bottom right apartment, Whittle’s father lived in the top right apartment, an unknown
person lived in the bottom left apartment, and Whittle lived in the top left apartment,
which was the northwest corner of the building. He identified apartment B in his
affidavit because he relied on information from a confidential informant who told him
that the apartment letter was B, that it had a brown door, and that it was located on
the northwest corner of the second floor. He conducted BMV checks to rule out the
other apartments.
{¶22} When Officer Brians was asked if he searched apartment B, he replied,
“The top, left apartment, yes.” When asked if he had checked the letters on the doors,
he said that he had not because SWAT officers had already cleared the apartment that
he described as “the goal apartment or the objective apartment [that] was the top, left
apartment in the northwest corner.” When he entered the building, he did not look at
any of the apartments on the first floor and did not see any letters on the doors of
either of the two apartments on the second floor.
{¶23} The state submitted into evidence a photograph of the door taken at the
time of the search. It shows a brown door with no letter on it. Officer Brians stated
that the picture depicted the door to the apartment that was searched. On cross-
examination, defense counsel showed him a photo taken months after the execution
of the warrant. Officer Brians acknowledged that the apartment on the top northwest
OHIO FIRST DISTRICT COURT OF APPEALS
corner of the building was not apartment B. He added, “The top northwest corner is
what I considered to be apartment B when I wrote the warrant.”
{¶24} Officer Brians also acknowledged that the photo depicted apartment B
as being on the first floor, but he said that “I don’t know that it was that way at the
time of the warrant.” He also agreed with the statement that “[f]or all we know, this
‘B’ could have been placed there by Mr. Whittle or someone else after the fact.”
{¶25} Although the warrant in this case mistakenly listed apartment B as the
place to be searched, the warrant and the testimony at the suppression hearing clearly
showed that the premises to be searched was on the top floor of the northwest corner
of the building, and that was the apartment that the police officers searched. Inside
that apartment, they found mail with Whittle’s name on it. The information known to
the officers as set forth in the warrant was sufficient to locate the apartment with
reasonable efforts.
{¶26} Further, the house had been under surveillance before the search. The
officer who drafted the affidavit used to obtain the warrant also participated in the
execution of the warrant, which diminishes the chances of a mistaken search. See
[CITATION]. Under the
circumstances, we cannot hold that the trial court erred in denying Whittle’s motion
to suppress. Therefore, we overrule his first assignment of error.
{¶27} In his second assignment of error, Whittle contends that trial court
erred in failing to suppress evidence “as a result of an invalid and otherwise flawed
search warrant.” He argues that the search warrant was invalid because the affidavit
in support of the warrant did not have a notary seal. This assignment is not well taken
{¶28} R.C. 2933.23 governs the affidavit supporting a search warrant. It
provides,
OHIO FIRST DISTRICT COURT OF APPEALS
A search warrant shall not be issued until there is filed with the judge or
magistrate an affidavit that particularly describes the place to be
searched, names or describes the person to be searched, and names or
describes the property to be searched for and seized; that states
substantially that the offense in relation to the property and that the
affiant believes and has good cause to believe that the property is
concealed at the place or on the person; and that states the facts upon
which the affiant’s belief is based.
{¶29} Similarly, Crim.R. 41(C)(1) provides,
A warrant shall issue on either an affidavit or affidavits sworn to before
a judge of a court of record or an affidavit or affidavits communicated
to the judge by reliable electronic means establishing the grounds for
issuing the warrant. In the case of a search warrant, the affidavit shall
name or describe the person to be searched or particularly describe the
place to be searched, name or describe the property to be searched for
and seized, state substantially the offense in relation thereto, and state
the factual basis for the affiant’s belief that such property is there
located.
{¶30} The affidavit supporting the warrant meets those requirements.
Neither the statute nor the rule requires the affidavit to be notarized. Whittle
acknowledges that the statute and the rule do not require a notary seal. Nevertheless,
he cites [CITATION], which requires a notary public to obtain a seal prior to the
discharge of his or her official duties, and [CITATION], the statute setting forth
notarial certificate requirements. He argues that these statutory provisions apply
because under the rules of statutory construction a more specific statute controls over
====== End of Document ====== OHIO FIRST DISTRICT COURT OF APPEALS
a more general statute. Therefore, the more specific provisions of R.C. 147.542
override the more general provisions of R.C. 2933.23 and Crim.R. 41. See R.C. 1.51.
{¶31} But Whittle has it backwards. R.C. 2933.23 and Crim.R. 41 codify the
specific requirements for search warrants and the affidavits supporting those
warrants, while R.C. Chapter 147 applies to notary publics and their certifications of
documents generally. Therefore, R.C. 2933.23 and Crim.R. 41 supersede R.C.
Chapter 147. See [CITATION].
{¶32} Moreover, generally, suppression of evidence is only warranted for rule
violations of “constitutional magnitude.” [CITATION]. Ministerial acts should not “cause a warrant to fail.” [CITATION]. Even if a notarization of the
warrant was required, the affidavit was sworn to in the presence of a judge, and the
failure to have it notarized would not render it inadmissible by the Fourth
Amendment. See [CITATION]. Consequently, we overrule Whittle’s second
assignment of error.
Other-Acts Evidence
{¶33} In his third assignment of error, Whittle contends that the trial court
erred in admitting evidence of the five controlled buys as he was not charged with any
offenses as a result of those buys. He argues that it was improper character evidence
admitted in violation of Evid.R. 404(B). This assignment of error is not well taken.
{¶34} The state argues and this court has held that Evid.R. 404(B) does not
apply to acts that are “not independent” of the charged crime. [CITATION].
OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-210227, [CITATION], ¶ 14. Other-acts evidence is admissible
when the other acts demonstrate the “setting” of a case and are part of the “immediate
background” of the charged offenses. [CITATION], 1st Dist. Hamilton No. C-
220477, [CITATION], 1st Dist. Hamilton No. C-220570,
[CITATION], 208 N.E.3d 1043, ¶ 19 (1st
Dist.); David at ¶ 16; [CITATION], 1st Dist. Hamilton No. C-170371, [CITATION], ¶ 30.
{¶35} Whittle did not object when evidence of the controlled buys was
presented at trial. The failure to object precludes him from raising the issue on appeal
unless it rises to the level of plain error. [CITATION], 3 Ohio St.3d 12, 13, 444
N.E.2d 1332 (1983); [CITATION] 1st Dist. Hamilton No. C-120561, [CITATION], ¶ 22. An alleged error does not rise to the level of plain error unless, but for the
error, the outcome of the trial would have been otherwise. [CITATION], 50 Ohio
St.3d 114, 119-120, 552 N.E.2d 913 (1990); [CITATION], 1st Dist. Hamilton No.
C-081237, [CITATION], ¶ 6.
{¶36} Whittle also argues that the trial court should have excluded the
evidence of the controlled buys under Evid.R. 403(A), which provides that relevant
evidence is not admissible if its “probative value is substantially outweighed by the
danger of unfair prejudice.” We do not address whether the trial court erred in
admitting other-acts evidence under Evid.R. 404(B) or Evid.R. 403(A). Given the
overwhelming evidence of Whittle’s guilt, we cannot hold that but for the admission
of the other-acts evidence, the outcome of the trial would have been otherwise.
Therefore, any error did not rise to the level of plain error. See [CITATION], 50 Ohio
St.3d at 119-120, 552 N.E.2d 913; [CITATION], 1st Dist. Hamilton No. C-081237, [CITATION], at ¶ 6. Consequently, we overrule Whittle’s third assignment of error.
[SEGMENT 33]
OHIO FIRST DISTRICT COURT OF APPEALS
Constructive Possession
{¶37} In his fourth assignment of error, Whittle contends that “the jury
verdicts finding Whittle guilty of all 12 offenses” were against the manifest weight of
the evidence. He argues that the state failed to present competent, credible evidence
that Whittle possessed the items found in the common areas of the basement. This
assignment of error is not well taken.
{¶38} A conviction requires a finding of guilt and a sentence. [CITATION], ¶ 35. Whittle was
only convicted of one count of trafficking in a fentanyl-related compound under R.C.
2925.03(A)(2). Therefore, we address this assignment of error only as it relates to
that conviction.
{¶39} R.C. 2925.01(K) provides that possession “means having control over
a thing or a substance, but may not be inferred solely from mere access to the thing
or substance through ownership or occupation of the premises upon which the thing
or substance is found.” A defendant’s possession of a thing or substance may be
actual or constructive. [CITATION], ¶ 12. Courts have defined constructive possession as “knowingly
exercising dominion and control over an object, even though the object is not within
the person’s immediate physical possession.” [CITATION], ¶ 32, citing [CITATION]. The person must be “conscious of the presence of the
object.” [CITATION]. The state may prove dominion and control and
consciousness of the object by circumstantial evidence. [CITATION].
{¶40} In the common area of the basement, the police officers found a trash
can filled with “tear-offs” from plastic baggies, which was indicative of preparing
OHIO FIRST DISTRICT COURT OF APPEALS
drugs for sale, and more lottery tickets, the same as were recovered from the
apartment. In boxes, they found torn papers with Whittle’s name and address on
them, torn lottery tickets, and torn baggies. On a shelving unit, the officers found
more personal documents with Whittle’s name and address on them. They found
large baggies of heroin and fentanyl sitting on a bookshelf.
{¶41} In the storage bin marked “C,” they found a gray and black shirt that
had a bag of drugs in its pocket. They found a shotgun, and in a hole in the ceiling,
they found several handguns. They found digital scales, commonly used to weigh
drugs for sale, and bags with residual amounts of heroin, fentanyl, and other drugs.
{¶42} Given the presence of identifying documents and other of Whittle’s
personal effects in the apartment where drugs were packaged for sale and other
documents and personal effects in the basement, the circumstantial evidence was
sufficient to allow the jury to infer that Whittle had constructive possession of the
fentanyl found in the basement. Though Whittle denied knowing about any of the
drugs in the basement, the jury did not believe him. Matters as to the credibility of
evidence are for the trier of fact to decide. [CITATION].
{¶43} After reviewing the record, we cannot hold that the trier of fact lost its
way and created such a manifest miscarriage of justice that we must reverse Whittle’s
conviction and order a new trial. Therefore, the conviction was not against the
manifest weight of the evidence. See [CITATION]. We overrule Whittle’s fourth assignment of error.
OHIO FIRST DISTRICT COURT OF APPEALS
Right to Counsel
{¶44} In his fifth assignment of error, Whittle contends that the trial court
erred in failing to grant his request to fire counsel or to at least investigate whether
new counsel was appropriate or whether he should be permitted to represent himself.
This assignment of error is not well taken.
{¶45} The record shows that Whittle changed counsel numerous times over
the course of the proceedings. At the sentencing hearing, Whittle announced that he
wanted to fire his counsel. He stated, “I asked for a few things that I needed and he
didn’t get it.” The court replied, “No. He is with you through this case * * *.” Whittle
added that he wanted to fire his counsel before trial, but that the court “didn’t give
me a chance to,” to which the court replied that Whittle’s assertion was false. As the
court started to proceed on the sentencing hearing, Whittle asked, “I can’t fire my
lawyer?” To which the court replied, “Not at a sentencing on a case where the
sentence is predetermined by law.”
{¶46} The Sixth Amendment right to counsel, implicitly embodies a
“correlative right to dispense with a lawyer’s help.” [CITATION], ¶ 23, quoting [CITATION]. A defendant in a
criminal trial has an independent constitutional right to represent himself at trial
without counsel when the defendant knowingly, voluntarily chooses to waive counsel.
[CITATION],
¶ 5.
{¶47} A criminal defendant must “unequivocally and explicitly invoke” the
right to self-representation. [CITATION], ¶ 29. The record does not show that Whittle unequivocally invoked his
right to self-representation. Further, the request to waive counsel must be timely
OHIO FIRST DISTRICT COURT OF APPEALS
made. [CITATION]. A
motion to waive counsel at the sentencing hearing is not timely. Therefore, the trial
court did not err in refusing to allow Whittle to represent himself and proceed pro se
at the sentencing hearing.
{¶48} Further, the trial court did not err in failing to investigate whether new
counsel should be appointed. An indigent defendant has the right to competent,
effective representation, but not to have the counsel of his or her choice. [CITATION]. “[A] an indigent defendant has no right to have
a particular attorney represent him and therefore must demonstrate ‘good cause’ to
warrant substitution of counsel.” [CITATION], quoting [CITATION].
We review the trial court’s decision to deny a motion for substitute counsel under an
abuse-of-discretion standard. [CITATION].
{¶49} The record shows that Whittle had changed attorneys several times,
and the request to fire his attorney was not timely made. The record does not support
his assertion that he wanted to fire counsel before the trial. Under the circumstances,
we cannot hold that the trial court abused its discretion in denying Whittle’s motion.
Further, even if the court had erred, the court had no choice but to impose a
mandatory prison term. See R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b). Therefore,
any error was harmless. See Crim.R. 52(A). We overrule Whittle’s fifth assignment
of error.
OHIO FIRST DISTRICT COURT OF APPEALS
{¶50} Finally, in his sixth assignment of error, Whittle contends that he was
denied the effective assistance of counsel. He argues generally that counsel failed to
object to improper testimony. He claims that he was prejudiced because an appellate
court could only review it for plain error. This assignment of error is not well taken.
{¶51} A court will presume that a properly licensed attorney is competent,
and the defendant bears the burden to show ineffective assistance of counsel. [CITATION]. To sustain a claim for
ineffective assistance of counsel, the defendant must demonstrate that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
[CITATION]. Counsel’s failure to object is not, by itself, enough to sustain
a claim for ineffective assistance of counsel. [CITATION].
{¶52} Whittle fails to specify where counsel was ineffective for failing to
object. The appellant bears the burden to show error by reference to the record. To
be considered on appeal, errors by a trial court must be argued and supported by legal
authority and citation to the record. App.R. 16(A); [CITATION]. “If an argument exists that can support [an]
assignment of error, it is not this court’s duty to root it out.” [CITATION],
quoting [CITATION]. Therefore, we decline to address Whittle’s argument. See [CITATION]. Consequently, we overrule Whittle’s sixth
assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
ZAYAS, P.J., and KINSLEY, J., concur.
Please note:
OHIO FIRST DISTRICT COURT OF APPEALS
The court has recorded its own entry this date.
Now, respond to the instruction.
### Instruction:
For the given context and target case, assume that the [citation]s within the context are replaced by the target case, and categorize each SEGMENT based on how the citations could assist in understanding the segment:
- "Related Segments": Segments where the "Target Case" provides a clear and direct connection to the citation marks within them, based on legal reasoning, evidence, or laws, making it a valuable reference.
- "Supporting Segments": Segments where the "Target Case" may provide some indirect relevance to understanding the context, but it does not have a direct connection to the citation marks in terms of legal reasoning, evidence, or laws.
### Target Case:
[Cite as State v. Warth, 2023-Ohio-3641.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220477
TRIAL NO. B-2102322
Plaintiff-Appellee, :
vs. :
O P I N I O N.
CHRISTOPHER WARTH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: October 6, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bryan R. Perkins, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Christopher Warth appeals his conviction for
felonious assault, raising 14 assignments of error. We affirm the trial court’s judgment
in part, reverse it in part, and remand the cause for further proceedings.
I. Facts and Procedure
{¶2} Warth was indicted on two counts of felonious assault under R.C.
2903.11(A)(1) and (2), respectively. The matter was tried to a jury.
Surveillance video captured shooting.
{¶3} At trial, the state introduced three surveillance videos taken from
Warth’s property. One was from inside Warth’s home and showed the front door. The
second video showed the front door from the porch. The third showed the driveway,
yard, and sidewalk.
{¶4} April Estes testified that, in May 2021, after the police informed her that
they could not pursue charges on the allegation that Warth had sexually assaulted
Estes’s daughter in 2007, she went to Warth’s home to inform him that she knew about
the assault. Estes’s girlfriend, Ashley, was in the vehicle with Estes.
{¶5} Estes knocked on Warth’s door and April Tyler, Warth’s mother, opened
the front door but remained behind the closed screen door. Video surveillance
supports Estes’s testimony that she never touched the door other than knocking on it
and was not trying to get inside the home.
{¶6} According to Estes, she asked Tyler for Warth and explained the
allegation against him. As the two began arguing, Warth came downstairs with a gun
in hand. The surveillance video shows that Warth had the gun raised to where Estes
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OHIO FIRST DISTRICT COURT OF APPEALS
could see it through the screen door. Estes testified that, when Warth came
downstairs, he looked “like a maniac with his firearms and stuff.”
{¶7} Tyler testified that Estes made no threats before Warth got downstairs
with his gun already in hand. Warth went to the door and then put the gun on the
kitchen table.
{¶8} As Estes, Tyler, and Warth continued to argue through the screen door,
Tyler smacked Estes in the forehead through the screen door and then closed the solid
door. Warth went into another part of the home. Estes walked off the porch of the
home and toward the sidewalk. Tyler and Warth continued to argue with Estes from
inside of their home. Tyler called 911 as the situation continued.
{¶9} Tyler told the operator that she did not think that Estes had any
weapons. Warth went out onto the porch with his gun as Tyler spoke with the 911
operator. Estes stated that, by the time Warth exited from the house with his gun the
first time, Tyler had already shut the door and Estes was at or near the sidewalk. Tyler
also came outside and began to argue with Estes again as Estes slowly backed off of
the property toward the street. As Warth went back inside the house, Tyler picked up
a flowerpot and motioned as if she were going to throw it at Estes.
{¶10} Estes testified that she did not leave the area because they were still
engaging with her, and she was not going to turn her back on them. She added that
she “wasn’t getting out of there that day without getting shot” and she “knew that from
the minute he answered the door with [the gun] in his hand.”
{¶11} Warth continued to enter and exit the house. Eventually, Warth, gun in
hand, walked to the end of the porch where Tyler was still arguing with Estes, who was
on the sidewalk.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} As Estes stood on the sidewalk, Tyler and Warth approached her. As
they got closer, Estes put her right hand in her right pocket and forcibly shook the
pocket, then took a fighting stance. Estes testified that she told them not to come any
closer. She denied having weapons or threatening to harm them because “that’s not
what [she went there for.]”
{¶13} Estes testified that she was begging Warth and Tyler to back off while
she was holding her sweatpants up as they “tend to sag a little bit * * * from the weight”
of her cell phone in her pocket. She stated that she was getting herself ready in case
Tyler was going to hit her again because Tyler was “coming at [her].” Estes asserted
that she kept her fist balled up inside of the pocket of her sweatpants “[p]robably just
trying to scare them back.”
{¶14} Tyler and Warth were within arm’s reach when Estes, still in a fighting
stance, stepped off the sidewalk onto the lawn and lunged toward Warth and then
toward Tyler. Warth stepped back, pulled his gun from his left pocket, and switched it
to his right hand. Warth shot Estes twice in the stomach as she lunged at Tyler. Estes’s
hands were at her side—with both hands empty and visible—when Warth shot Estes.
{¶15} After Warth shot Estes, Ashley attempted to pull her away from the
scene. Warth, however, repeatedly pushed Estes down and kicked Estes in the chest
while pointing the gun at both Estes and Ashley. Estes testified that she was certain
that “he was going to blow [Ashley’s] head off” because he kept pointing the gun at her,
or that he would shoot Estes in the head after he “stomped [Estes’s] head.” Estes
testified that she thought she was going to die.
{¶16} Estes suffered lacerations to her liver and kidney, damage to her L3-L4
vertebrae, and she had an ileostomy bag for six months. Estes learned to walk again
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OHIO FIRST DISTRICT COURT OF APPEALS
through physical therapy, though she continued to suffer from nerve damage in her
leg.
Officers responded to the scene and interviewed Warth.
{¶17} Officer Richard Coy, a responding officer, testified that he heard a
gunshot as he was enroute to Warth’s home. When Coy arrived, Warth was holding a
handgun in his right hand, so Coy immediately drew his weapon and ordered Warth
to drop his pistol. Instead of complying, Warth argued with Coy, stating that he had
surveillance cameras. Warth did not comply until Coy repeated the command several
times. Coy testified that he saw Estes injured and lying on the ground but neither he
nor the medics could get to her until Warth dropped his weapon and the scene was
secured.
{¶18} Police searched Estes, Ashley, and the car in which they had arrived.
They found no weapons.
{¶19} Detective Michael Webb responded to the scene, reviewed the video
surveillance, and interviewed Warth. During the interview, Warth referred to Estes as
“[t]his girl or guy, whatever the fuck it is,” and stated that Estes kept hitting through
the screen door, tried to grab the storm door, and punched the window. Warth claimed
that he saw a knife handle in Estes’s pocket, asserted that his gun had been holstered,
denied knowing Estes before admitting that he knew her from school, and said that
Estes kept lunging toward him before he “popped her.”
{¶20} Webb stated that, while Warth may have thought Estes had a weapon,
Warth “definitely show[ed] Ms. Estes that he had a weapon.” When asked by defense
counsel to concede that Warth only pointed the gun when he shot Estes, Webb
responded that he recalled Warth pointing the gun in the air to show Estes that he had
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OHIO FIRST DISTRICT COURT OF APPEALS
it. Warth agreed with Webb’s suggestion that he could have “simply locked the door
and nothing would have occurred.” The front door was locked before Warth and Tyler
went outside to confront Estes.
{¶21} Though Webb’s decision to charge Warth was based on Warth having
the ability to remain in his home instead of confronting Estes while she stood on a
public sidewalk and shooting her twice, he also testified that Warth did not have to go
back into his home. The state’s closing argument echoed this testimony. Webb added
that the front door “would secure both” Warth and Estes, and Warth more so than
Estes had the ability to retreat.
The jury reached a guilty verdict on both counts of felonious assault.
{¶22} The court instructed the jury that words alone do not justify the use of
force, “no matter how provocative.” The jury returned a guilty verdict on both counts
and specifications.
{¶23} During sentencing, the court pointed to comments that Warth made in
his police interview that “show[ed] an utter disdain for the victim on the same day.
That is part—that is part of the record.” The court also considered the seriousness
factors under R.C. 2929.12(B), stating that the injury suffered by Estes was grave as
she suffered serious physical harm as well as economic and psychological harm. As to
the R.C. 2929.12(C) factors, the court stated that Estes could have left the home, but
her actions were not a sufficient provocation and Warth’s claims of self-defense and
argument in mitigation were not sufficient under the law. The court noted that Warth
did not have a criminal record and that it must consider his status as a military veteran
as he sustained injuries during his service and suffered from posttraumatic stress
syndrome (“PTSD”), though “the court clinic did not find [his PTSD] significant
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OHIO FIRST DISTRICT COURT OF APPEALS
enough to be diagnoseable.”
{¶24} The trial court sentenced Warth to an indefinite term of nine to 12 years
in the Ohio Department of Rehabilitation and Correction. The court merged the
specification in count two with the specification in count one and ordered the
sentences to be served concurrently.
II. Law and Analysis
{¶25} Several of Warth’s assignments of error involve evidence to which
Warth failed to object at trial. These asserted errors may only be reviewed for plain
error. State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294, ¶ 7. To
demonstrate plain error, Warth must show that an error occurred, that the error was
plain, and that the error affected his substantial rights. State v. Wilks, 154 Ohio St.3d
359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 52; see Crim.R. 52(B). A reviewing court
should not correct plain error other than in “exceptional circumstances and only to
prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d
804 (1978), paragraph three of the syllabus.
{¶26} We address Warth’s assignments of error out of order for ease of
discussion.
A. The state did not suggest that Warth should have retreated.
{¶27} In his fourth assignment of error, Warth argues that the trial court erred
to his prejudice by improperly admitting evidence of the possibility of retreat in a self-
defense case as it was contrary to law.
{¶28} Warth points to multiple instances in which the state allegedly elicited
evidence of the possibility of retreat. But Warth objected once, on the third day of trial,
after multiple instances of the alleged improper testimony occurred. Moreover,
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OHIO FIRST DISTRICT COURT OF APPEALS
Warth’s counsel elicited testimony that was similar to what Warth asserts the state
improperly elicited. Thus, the fourth assignment of error may only be reviewed for
plain error. See Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294, at ¶ 7.
{¶29} Under R.C. 2901.05, when a defendant presents evidence that tends to
support that the defendant used force against another in self-defense or in defense of
another, the state must prove beyond a reasonable doubt that the defendant did not
use the force in self-defense or defense of another. R.C. 2901.05(B)(1); State v. Smith,
1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 49. The state carries the burden
to disprove one or more of the elements of self-defense in the use of deadly force: (1)
the defendant did not create the situation giving rise to the affray, or (2) the defendant
had a bona fide belief that he was in imminent danger of death or great bodily harm
and his only means of escape from such a danger was to use such force. State v.
Mitchell, 1st Dist. Hamilton No. C-220471, 2023-Ohio-2604, ¶ 17. The test for a bona
fide belief of imminent bodily harm is both objective and subjective: whether the
defendant’s belief is objectively reasonable and whether the defendant subjectively
had an honest belief of imminent bodily harm. State v. Moore, 9th Dist. Summit No.
29581, 2023-Ohio-2864, ¶ 10.
{¶30} The newly-amended “stand your ground” law, R.C. 2901.09(B),
provides that “a person has no duty to retreat before using force in self-defense,
defense of another, or defense of that person’s residence if that person is in a place in
which the person lawfully has a right to be.” R.C. 2901.09(C) provides, “A trier of fact
shall not consider the possibility of retreat as a factor in determining whether * * * a
person who used force in self-defense * * * reasonably believed that the force was
necessary to prevent injury, loss, or risk to life or safety.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} But R.C. 2901.09(C) is not an absolute prohibition on introducing
evidence involving the possibility of retreat. Rather, the statute only prohibits fact
finders from considering evidence involving the possibility of retreat to determine
whether the defendant’s belief that force was necessary was reasonable. Fact finders
may, however, consider retreat evidence to determine who was at fault in creating the
situation leading to the affray. State v. Hughkeith, 2023-Ohio-1217, 212 N.E.3d 1147,
¶ 88 (8th Dist.) (“While a person no longer has a duty to retreat from a place he or she
is lawfully permitted to be, there is no language in the amended statute to suggest a
trier of fact is precluded from considering whether the defendant was the initial
aggressor or whether the defendant attempted to withdraw from the situation when
determining whether the defendant was at fault in creating the situation giving rise to
the affray. The narrow language of the amended statute does not place on triers of fact
express restrictions on consideration of fault.”).
{¶32} Warth takes issue with the state’s opening statement, which discussed
Warth, who was armed, leaving the safety of his home to reengage Estes. But this
statement does not involve a duty to retreat. Moreover, the state clarified that Warth
had no duty to retreat back into his house or from his property.
{¶33} Warth further asserts that Webb’s testimony was improper because he
testified to his understanding of the law as it related to his decision to arrest Warth,
which was based on Warth leaving the safety of his home to reengage Estes after she
had left the property. Warth misconstrues this testimony as suggesting that Warth had
a duty to retreat. He is incorrect. Webb never suggested that Warth had a duty to
retreat. Rather, the testimony focused on Warth choosing to advance toward Estes
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OHIO FIRST DISTRICT COURT OF APPEALS
after she had left Warth’s property. In fact, Webb testified that Warth did not have a
duty to retreat into the house when Estes lunged at him and Tyler.
{¶34} And the trial court’s jury instructions clearly stated that Warth had no
duty to retreat and that the jury was not to consider the possibility of retreat when
determining whether Warth had a reasonable belief that force was necessary:
Determining reasonable belief. In determining whether the defendant,
in using force in self-defense, reasonably believed that the force was
necessary to prevent injury, loss, or risk of life, or safety, you must not
consider the possibility of retreat by the defendant.
“No duty to retreat.” The defendant had no duty to retreat before using
force in self-defense if the defendant was in a place which he lawfully
had a right to be.
{¶35} The trial court committed no error. We overrule Warth’s fourth
assignment of error.
B. Warth’s conviction was supported by sufficient evidence, and it did not run
contrary to the weight of the evidence.
{¶36} Warth argues his first three assignments of error together, asserting
that (1) his conviction was not supported by sufficient evidence, (2) the conviction ran
contrary to the weight of the evidence, and (3) the state failed to disprove Warth’s self-
defense claim beyond a reasonable doubt.
{¶37} The Ohio Supreme Court has held that a self-defense claim is not an
element of the offense that must be proven by the state and, therefore, it is not subject
to review for sufficiency of the evidence. State v. Messenger, Slip Opinion No. 2022-
Ohio-4562, ¶ 24-27. Thus, we overrule Warth’s first assignment of error. State v.
Wilson, 2d Dist. Clark No. 2021-CA-68, 2022-Ohio-3763, ¶ 60 (A self-defense claim
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OHIO FIRST DISTRICT COURT OF APPEALS
naturally concedes commission of the offense.).
{¶38} Warth’s second and third assignments of error require this court to
determine whether the jury’s verdict was contrary to the manifest weight of the
evidence regarding whether the state disproved Warth’s self-defense claim. See
Messenger at ¶ 26. The weight of the evidence and the credibility of the witnesses are
primarily for the trier of fact. State v. Bailey, 1st Dist. Hamilton No. C-140129, 2019-
Ohio-4027, ¶ 63. In reviewing a challenge to the weight of the evidence, this court sits
as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton No. C-190107, 2020 Ohio
App. LEXIS 1184, *7 (Mar. 31, 2020), quoting State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997). This court will not substitute its judgment for that of the
trier of fact on the issue of witness credibility unless it is patently apparent that the
trier of fact lost its way in arriving at its verdict. Bailey at ¶ 63.
{¶35} Under R.C. 2901.05(B)(1), a person may act in self-defense, defense of
another, or defense of that person’s residence. As discussed above, when a defendant
presents evidence that tends to support that the defendant used force in self-defense,
the state must disprove the accused’s self-defense claim beyond a reasonable doubt.
R.C. 2901.05(B)(1).
{¶36} Warth heavily relies on State v. Gillespie to support his self-defense
claim. State v. Gillespie, 172 Ohio App.3d 304, 2007-Ohio-3439, 874 N.E.2d 870 (2d
Dist.). In that case, when the victim came to Gillespie’s home to purchase drugs,
Gillespie noticed that the victim had a knife. Id. at ¶ 2. After Gillespie accused the
victim of stealing his property and went to retrieve a shotgun, the victim had fled. Id.
at ¶ 3-4. Gillespie went to the victim’s mother’s home with the shotgun because he
knew that the victim had a knife. Id. at ¶ 4-5. The two walked back to Gillespie and his
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OHIO FIRST DISTRICT COURT OF APPEALS
girlfriend’s house, but after the argument escalated, Gillespie’s girlfriend asked the
victim to leave. Id. at ¶ 6. The victim walked outside and Gillespie followed him. Id.
Though the two offered different accounts of what happened next, Gillespie testified
that the victim had pulled a knife and began approaching him and Gillespie shot him
in self-defense. Id. at ¶ 6-7. The trial court refused to instruct the jury on self-defense.
Id. at ¶ 14. The reviewing court reversed for a new trial, noting:
Defendant’s own testimony demonstrates that he could have avoided any
confrontation with Banks by simply remaining at home after Banks left
Defendant’s home. Instead, Defendant retrieved a loaded shotgun, and
then went looking for Banks, intending to retrieve his stolen property.
When Defendant located Banks at his mother’s house, Defendant
summoned Banks to come outside, and then escorted Banks back to
Defendant’s house, where the argument over whether Banks took
Defendant’s property continued and escalated. Simply put, Defendant’s
own conduct renewed the confrontation with Banks which had
concluded when Banks left Defendant’s home.
Id. at ¶ 16. The court determined, however, that the trial court should have given the
self-defense instruction to the jury because reasonable jurors could have concluded
that the victim was at fault, noting, “That assumes that Banks attacked Defendant with
a knife, as Defendant claims.” Id. at 18.
{¶37} Gillespie does not convince us to hold that the trial court’s judgment was
contrary to the manifest weight of the evidence. The issue in Gillespie was whether he
had presented evidence that tended to show that he acted in self-defense, entitling him
to a self-defense jury instruction. Here, however, the trial court provided a self-defense
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OHIO FIRST DISTRICT COURT OF APPEALS
jury instruction. Thus, the question becomes whether the jury’s verdict was contrary
to the manifest weight of the evidence in finding that the state proved beyond a
reasonable doubt that Warth (1) was at fault in creating the situation giving rise to the
affray; or (2) did not have an objectively reasonable or a subjective, honest belief that
he or his mother was in imminent danger of death or great bodily harm for which the
use of deadly force was his only means of escape. See Mitchell, 1st Dist. Hamilton No.
C-220471, 2023-Ohio-2604, at ¶ 19, 24. The state need only disprove one of the self-
defense elements beyond a reasonable doubt. State v. Williams, 9th Dist. Summit No.
29444, 2020-Ohio-3269, ¶ 10.
At fault for creating the situation giving rise to the affray.
{¶38} Although the laws involving self-defense claims were amended in 2019
and 2020, affecting the state’s burden and the duty to retreat, the law continues to
prohibit a person from provoking an assault or voluntarily entering an encounter and
then claiming a right of self-defense.
{¶39} “Once the ‘person against whom the defensive force is used’ is no longer
either on the defendant’s property or a threat, or when the defendant has succeeded
in ‘expelling’ the other person, then the privilege under which defendant operated is
over.” State v. Koehler, 8th Dist. Cuyahoga No. 100915, 2014-Ohio-3922, ¶ 23; see
State v. Nichols, 4th Dist. Scioto No. 01CA2775, 2002 Ohio App. LEXIS 329 (Jan. 22,
2002) (defendant followed the victim to provoke an altercation); State v. Sekic, 8th
Dist. Cuyahoga No. 95633, 2011-Ohio-3978, ¶ 15 (defendant cannot claim self-defense
when he “willingly advanced toward a volatile situation” by confronting the victim to
continue an earlier altercation); State v. Gaston, 8th Dist. Cuyahoga No. 98904, 2013-
Ohio-2331, ¶ 16-17 (even if the victim is the immediate aggressor, the defendant cannot
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OHIO FIRST DISTRICT COURT OF APPEALS
provoke an assault or voluntarily enter an encounter and then claim a right of self-
defense after the victim predictably attacks); State v. Johnson, 8th Dist. Cuyahoga No.
110673, 2022-Ohio-2577, ¶ 13 (defendant’s conduct could not support a self-defense
claim where undisputed evidence demonstrated that defendant waited for the victim
to exit the building and approached the victim with the intent to rekindle the earlier
fight).
{¶39} Citing Gillespie, Warth contends that he cannot be found “at fault” for
arming himself with a weapon while on his property. He asserts that Estes planned to
come to his home to confront him, she “threatened to ‘stick’ [Warth] while concealing
her hand in her pocket as if she had a weapon,” and “escalated this situation when she
came onto [Warth’s] private property and lunged at him and his mother.”
{¶40} But Warth arming himself while on his property is not the issue. Rather,
the issue in this case is that Warth voluntarily reentered the dispute by pursuing Estes
after she had left his property. Warth’s choice to follow Estes escalated the situation.
{¶41} The video shows that Estes did not attempt to enter Warth’s house. She
did not get into a fighting stance or lunge at Warth and his mother until they came
outside after her. Warth was armed with a gun and came within a few feet of Estes.
Warth told the investigators that Estes saw his gun when he first came downstairs.
Because Warth repeatedly came outside visibly holding a weapon, Estes knew that
Warth had the gun, and she had a valid fear that he would use it on her.
{¶42} The evidence supports a finding that Warth voluntarily reentered the
conflict after the threat had been removed. Estes’s coming to the home to confront
Warth about the sexual assault created an environment ripe for a physical
confrontation, but Estes was on the sidewalk creating no threat to Warth when he
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came back outside with his gun.
Bona fide fear of imminent death or great bodily harm.
{¶43} As discussed above, a defendant’s belief that he was in immediate
danger of death or great bodily harm must be objectively reasonable, and the
defendant must have a subjective, honest belief that he was in such danger. Williams,
9th Dist. Summit No. 29444, 2020-Ohio-3269, at ¶ 29. If the objective standard is
met, “the jury must determine if, subjectively, this particular defendant had an honest
belief that []he was in immediate danger.” State v. Thomas, 77 Ohio St.3d 323, 331,
673 N.E.2d 1339 (1997). The state may disprove self-defense by demonstrating that
the defendant’s belief was not objectively reasonable or that he did not have an honest
subjective belief that he faced imminent death or great bodily harm. See Williams, at
¶ 29.
{¶44} “[W]ords alone will not constitute reasonably sufficient provocation to
incite the use of deadly force in most situations.” State v. Becker, 5th Dist. Stark No.
2022 CA 0069, 2023-Ohio-601, ¶ 26, quoting State v. Shane, 63 Ohio St.3d 630, 634-
635, 590 N.E.2d 272 (1992).
{¶45} The jury reasonably could conclude that Warth did not have a bona fide
belief that he or his mother was in danger of death or serious bodily harm.
{¶46} Regarding whether Warth had an objectively reasonable belief of an
imminent threat of death or serious bodily harm, Tyler told police that she did not
believe that Estes had a weapon. Warth and Tyler were safely behind a locked door.
Estes never “beat” or kicked the door or attempted to gain entry to the home. After
Tyler smacked her in the forehead through the locked screen door, Estes began to walk
away, and Tyler closed the front door on Estes. Finally, Estes’s hands were out of her
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pockets when Warth fired his gun.
{¶47} Even if Warth’s belief were objectively reasonable, a jury reasonably
could have found that Warth lacked an honest subjective belief that he or his mother
were in imminent danger of death or serious bodily harm. Warth entered and exited
from the house multiple times, once unarmed, and once left his mother alone outside
with Estes. If he were honestly afraid of Estes attacking him or his mother, he would
not have left his mother alone with Estes or confronted her unarmed.
{¶48} Moreover, Warth’s comments to police, which were played to the jury,
suggested that he did not fear her. In describing how he felt threatened by Estes, Warth
said, “[S]he kept saying, I’ll stick you. Come on. Put that gun down. Come out here. I’ll
stick you. I’ll stick you right now. And I was like, what are you gonna stick me with, a
fucking what? Your dildo? What?” Warth also said three separate times that Estes
threatened to “come back” to harm him and his family, which does not indicate an
imminent threat of bodily harm or death.
{¶49} Finally, Warth lied to police about Estes pounding and kicking at the
door, in saying he did not know who Estes was, and about seeing a knife handle in
Estes’s pocket. The jury could have believed that these lies to police undermined
Warth’s credibility, which could have caused the jury to disbelieve his assertion that
he honestly feared Estes would kill or seriously injure him or his mother.
{¶50} Reversing a conviction and granting a new trial should only be done in
“exceptional cases in which the evidence weighs heavily against the conviction.” State
v. Pagdett, 1st Dist. Hamilton Nos. C-200327 and C-200238, 2021-Ohio-2905, ¶ 21.
This is not one of those exceptional cases. The jury reasonably found that the state
proved lack of self-defense beyond a reasonable doubt. We overrule Warth’s first,
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OHIO FIRST DISTRICT COURT OF APPEALS
second, and third assignments of error.
C. Webb’s testimony was admissible.
{¶51} In his fifth assignment of error, Warth argues that the trial court erred
by permitting Webb to express his opinion as to whether Warth acted in self-defense.
Warth did not object to this testimony, thus, we review it for plain error. The testimony
to which Warth objects on appeal is as follows:
WEBB: And Mr. Warth and his mother continue to go towards her. You
know Mr. Warth told us several times that he was in fear, yet, he was
going forward.
Those two things didn’t make sense. There was a confrontation at the
corner of the property where Mr. Warth and his mother approached Ms.
Estes, and, you know, she made some – some movements as if she was
going to fight.
You know, what we took into consideration was it was reasonable for
Ms. Estes to think that there was an imminent threat to her. Mr. Warth
stated that he felt that she may have had something, but never seen it.
However, Mr. Warth did definitely show Ms. Estes that he had a
weapon.
So at that point where she was on the public sidewalk, and she was
approached by two individuals, was it reasonable for her to fear that she
was in imminent danger?
We felt the imminent threat was more for her to feel fear at that point.
I asked Mr. Warth if – you know, you could have simply locked the door
and nothing would have occurred?
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He did agree with that statement. So the conclusion was – is that we felt
Mr. Warth was in violation of felonious assault at that point.
{¶52} Warth offers no plain-error argument, other than, “Even under the plain
error standard, reversal is required. This is an obvious violation of the law that
adversely affected Warth’s substantial rights.” This conclusory statement does not
provide this court any argument about why admitting this evidence was plainly
erroneous. While under Crim.R. 52(B), this court has the discretion to correct plain
errors affecting a defendant’s substantial rights, “the accused bears the burden of
proof to demonstrate plain error on the record.” State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. When an appellant fails to develop a plain-error
analysis, the appellate court need not create one on the appellant’s behalf and may
decline to reach the merits of the claim. State v. Chapman, 9th Dist. Summit No.
28626, 2018-Ohio-1142, ¶ 23. For this reason, Warth’s fifth assignment of error fails.
{¶53} But even if Warth had offered a plain-error argument, a trial court does
not commit reversible error by permitting police officers to testify about the process
of their investigation. See State v. Fhiaras, 8th Dist. Cuyahoga No. 97740, 2012-Ohio-
3815, ¶ 38 (testimony involving a police officer’s role in deciding whether his
investigation should continue, and whether that investigation should continue to focus
on both a particular offense and a specific suspect, was permissible); Evid.R. 701; see
also State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 108 (1st Dist.) (testimony of a
detective was rationally based on his training and personal experience in child-abuse
cases, and aided the trier of fact in determining the child-victim’s credibility).
{¶54} Webb did not give an opinion about whether Warth acted in self-
defense. Rather, Webb testified that it was reasonable for Estes to feel fear when Tyler
18
OHIO FIRST DISTRICT COURT OF APPEALS
and Warth—who was armed—approached her on the sidewalk. Webb also testified
about the portion of the police interview where he asked Warth if he could have stayed
behind the locked door and that Warth agreed. This was informing the jury about his
investigation. It was not expert testimony that Warth did not act in self-defense.
{¶55} We overrule Warth’s fifth assignment of error.
D. The trial court did not commit plain error by admitting other-acts evidence.
{¶56} In his sixth assignment of error, Warth argues that the court improperly
admitted evidence of sexual misconduct because it permitted Estes to testify to her
belief that he molested her daughter.
{¶57} Other-acts evidence is admissible when the acts form a part of the
“immediate background of the act” as part of the charged crime. State v. David, 1st
Dist. Hamilton No. C-210227, 2021-Ohio-4004, ¶ 16.
{¶58} Warth did not object to this testimony and fails to make a plain-error
argument other than, “Even though not objected to at trial, this error also adversely
affected Warth’s substantial rights, requiring reversal even under the plain error
standard.”
{¶59} But had Warth properly preserved this issue and made more than a
conclusory plain-error argument, the accusation about Warth molesting Estes’s
daughter forms part of the “immediate background of the act.” The allegation explains
why Estes confronted Warth and why both Warth and Tyler were angry. The evidence
was admissible. We overrule Warth’s sixth assignment of error.
E. There was no prosecutorial misconduct regarding the availability of retreat.
{¶60} In his seventh assignment of error, Warth argues that the state engaged
in misconduct that prejudicially affected his substantial rights when it argued and
19
OHIO FIRST DISTRICT COURT OF APPEALS
elicited testimony regarding Warth approaching Estes, being the aggressor, and failing
to retreat. He contends the state presented improper opinion evidence regarding
whether Warth acted in self-defense and as to prior bad acts.
{¶61} For the same reasons discussed in the previous assignments of error,
the state did not engage in misconduct and, therefore, there was no error. We overrule
Warth’s seventh assignment of error.
F. Warth was not denied due process.
{¶62} In his eighth assignment of error, Warth argues that his due-process
rights were violated when the police corrupted the audio on the surveillance footage.
Warth contends that, had the audio not been corrupted, then the jury would have been
able “to hear Estes’ actual tirade and threats to kill Warth and his mother,” which was
exculpatory.
{¶63} “[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To establish
a Brady violation, Warth first must demonstrate that the state withheld evidence.
State v. Hawk, 10th Dist. Franklin No. 21AP-265, 2021-Ohio-4533, ¶ 20.
{¶64} “A defendant may allege a Brady violation based on loss or destruction
of exculpatory evidence; however, in those cases the evidence must have actually
existed at some point.” State v. Black, 10th Dist. Franklin No. 22AP-180, 2022-Ohio-
3119, ¶ 20, fn. 2. Warth must establish a Brady violation based on more than his
“unsupported assertion” that the audio “could have existed without some evidence to
20
OHIO FIRST DISTRICT COURT OF APPEALS
suggest that such [audio] actually did exist.” See State v. Blade, 6th Dist. Lucas No. L-
22-1091, 2023-Ohio-658, at ¶ 23.
{¶65} Here, Warth testified that his surveillance cameras record audio, that
there was audio on previous videos when he had used the cameras before, and he had
not removed any audio from the surveillance of the shooting.
{¶66} But Warth did not assert that there had been audio on the videos played
during trial. Indeed, there was no evidence that any audio existed or that police
damaged the recording. Warth cannot establish a Brady violation and, therefore, we
overrule Warth’s eighth assignment of error.
G. The trial court did not err in precluding Warth’s witness from testifying.
{¶67} In his ninth assignment of error, Warth argues that the trial court erred
by precluding him from presenting a witness who would have testified to seeing a
Facebook post where Estes threatened Warth, which had since been removed.
{¶68} This court recognizes that trial courts have wide discretion in the
admission or exclusion of evidence. State v. Neal, 1st Dist. Hamilton No. C-210166,
2022-Ohio-1290, ¶ 29. We review such decisions for an abuse of discretion. Id. To find
an abuse of discretion, this court must determine that the trial court’s decision was
unreasonable, arbitrary, or unconscionable. State v. Ofori, 1st Dist. Hamilton Nos. C-
220367, C-220368, C-220369, and C-220370, 2023-Ohio-1460, ¶ 14, quoting
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). We will not
reverse an evidentiary ruling absent a showing that an incorrect ruling affected a
party’s substantial rights. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70
N.E.3d 508, ¶ 181.
21
OHIO FIRST DISTRICT COURT OF APPEALS
{¶69} A party claiming error involving the trial court’s exclusion of evidence
must show that the party’s substantial rights were affected and that the party informed
the trial court of the substance of the evidence by proffer or by context of the questions
asked. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 113;
Evid.R. 103(A)(2). “The purpose of a proffer is to assist the reviewing court in
determining, pursuant to Evid.R. 103, whether the trial court’s exclusion of evidence
affected a substantial right of the appellant.” State v. Gibson, 1st Dist. Hamilton No.
C-220176, 2023-Ohio-1154, ¶ 33, quoting In re Walker, 162 Ohio App.3d 303, 2005-
Ohio-3773, 833 N.E.2d 362, ¶ 37 (11th Dist.). A proffer cannot be vague—it must
provide “specific information,” rather than general descriptions. State v. Robinson, 3d
Dist. Allen No. 1-19-79, 2020-Ohio-4880, ¶ 32-33; Hallisy v. Hallisy, 11th Dist.
Geauga No. 2022-G-0048, 2023-Ohio-2923, ¶ 20.
{¶70} At trial, the court asked if Warth intended to call any witnesses.
Relevant to the substance of the Facebook post, Warth’s counsel stated, “There was
testimony by Ms. Estes where I confronted her with a statement that she had posted
to Facebook messages looking to harm Mr. Warth. * * * We plan to call a witness who
will say that she had seen this and that there [were] threats of harm.” There was no
other information proffered.
{¶71} Warth provided to the trial court no specific information about the
evidence he wished to elicit. Instead, he gave only a general description: that there
were “threats of harm.” There was nothing suggesting the nature of the threats, when
the threats were made, what kind of harm Estes allegedly threatened, or if the post
contained any specific threats.
{¶72} Warth’s failure to proffer the witness’s testimony renders this court
22
OHIO FIRST DISTRICT COURT OF APPEALS
unable to review the proposed testimony to determine whether its exclusion affected
Warth’s substantial rights. Accordingly, Warth forfeited this issue on appeal. We
overrule Warth’s ninth assignment of error.
H. Warth was not denied the effective assistance of counsel.
{¶73} In his tenth assignment of error, Warth argues that he was denied the
right to the effective assistance of counsel where his attorney failed to object to the
impermissible testimony and evidence presented by the prosecution.
{¶74} In any ineffectiveness case, a particular decision must be directly
assessed for reasonableness, applying a heavy measure of deference to counsel’s
litigation strategy. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Under Strickland as interpreted by Ohio courts, attorneys are
presumed competent and reviewing courts must refrain from second-guessing
strategic, tactical decisions and presume that counsel’s performance falls within a wide
range of reasonable legal assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651
N.E.2d 965 (1995).
{¶75} To succeed on an ineffective-assistance-of-counsel claim, an appellant
must show that (1) counsel’s performance was deficient, and (2) the deficient
performance deprived the appellant of a fair trial. Strickland at 687. “A defendant’s
failure to satisfy one prong of the Strickland test negates a court’s need to consider the
other.” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶76} “To warrant reversal, ‘(t)he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
23
OHIO FIRST DISTRICT COURT OF APPEALS
sufficient to undermine confidence in the outcome.’ ” State v. Bradley, 42 Ohio St.3d
136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 694.
{¶77} Warth fails to cite to any part of the record where he believes that
counsel should have objected. Indeed, his entire argument is one sentence: “Should
this Court determine that Warth waived any of his claimed errors, or waived all but
plain error, due to his counsel’s failure to object, Warth asserts that he was denied the
effective assistance of counsel.”
{¶78} App.R. 12(A)(2) provides that “[t]he court may disregard an assignment
of error presented for review if the party raising it fails to identify in the record the
error on which the assignment of error is based or fails to argue the assignment
separately in the brief, as required under App.R. 16(A).” App.R. 16(A)(7) provides that
an appellant must provide an argument and “the reasons in support of the contentions,
with citations to the authorities, statutes, and parts of the record on which appellant
relies.”
{¶79} This court declines to address Warth’s argument. See State v.
Covington, 1st Dist. Hamilton No. C-190731, 2021-Ohio-2907, ¶ 25. We overrule
Warth’s tenth assignment of error.
I. The trial court properly considered the sentencing factors under R.C. 2929.12.
{¶80} In his twelfth assignment of error, Warth argues that the trial court
erred by imposing a prison sentence that was not supported by the sentencing factors
in R.C. 2929.12, and that all of the factors under R.C. 2929.12(E) were present.
{¶81} We review criminal sentences under R.C. 2953.08(G)(2), which allows
appellate courts to increase, reduce, or otherwise modify a sentence, or to vacate the
sentence and remand the matter for resentencing if it clearly and convincingly finds
24
OHIO FIRST DISTRICT COURT OF APPEALS
that either the record does not support the sentencing court’s findings under relevant
statutory provisions, or the sentence is otherwise contrary to law. State v. Conley, 1st
Dist. Hamilton No. C-200144, 2021-Ohio-837, ¶ 20.
{¶82} But “R.C. 2953.08(G)(2)(a) clearly does not provide a basis for an
appellate court to modify or vacate a sentence if it concludes that the record does not
support the sentence under R.C. 2929.11 and 2929.12 because * * * R.C. 2929.11 and
2929.12 are not among the statutes listed in the provision.” State v. Jones, 163 Ohio
St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 31. A trial court’s findings under R.C.
2929.11 and 2929.12 are not reviewable under R.C. 2953.08(G)(2)(b) because “an
appellate court’s conclusion that the record does not support a sentence under R.C.
2929.11 or 2929.12 is not the equivalent of a conclusion that the sentence is ‘otherwise
contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 34.
{¶83} R.C. 2929.11 and 2929.12 are not fact-finding statutes and, absent an
affirmative demonstration to the contrary, we will presume that the trial court
considered them. State v. Mimes, 1st Dist. Hamilton No. C-200122, 2021-Ohio-2494,
¶ 9.
{¶84} The trial court adequately considered the overriding principles and
purposes of felony sentencing under R.C. 2929.11 and 2929.12. We overrule Warth’s
twelfth assignment of error.
J. Indefinite sentencing is constitutional in Ohio.
{¶85} In his thirteenth assignment of error, Warth suggests that the indefinite
sentence imposed was unconstitutional. But the Supreme Court of Ohio recently
determined that the indefinite sentencing scheme under the Reagan Tokes Law is
constitutional. State v. Hacker, Slip Opinion No. 2023-Ohio-2535. Therefore, we
25
OHIO FIRST DISTRICT COURT OF APPEALS
overrule Warth’s thirteenth assignment of error.
K. The two counts of felonious assault should have been merged.
{¶86} In his eleventh assignment of error, Warth argues that the trial court
violated the principles of double jeopardy by failing to merge the counts of felonious
assault. Warth notes that the court announced that counts one and two were to be
merged, but the sentencing entry does not reflect that. The state concedes this error.
We sustain Warth’s eleventh assignment of error and remand the cause to the trial
court to merge counts one and two.
L. The doctrine of cumulative error does not apply.
{¶87} In his final assignment of error, Warth argues that he was denied the
right to a fair trial under the cumulative effect of the errors committed at trial. “Under
the doctrine of cumulative error, a conviction may be reversed if the cumulative effect
of errors deemed separately harmless is to deny the defendant a fair trial.” State v.
Cook, 1st Dist. Hamilton No. C-140118, 2014-Ohio-4900, ¶ 15.
{¶88} Because we have determined that the trial court’s only error was the
failure to merge Warth’s counts—which happened after the trial concluded—there was
no cumulative error and Warth was afforded a fair trial. Thus, we overrule Warth’s
fourteenth assignment of error.
III. Conclusion
{¶89} With the exception of the eleventh assignment of error, we overrule
Warth’s assignments of error. We remand the cause to the trial court to merge counts
one and two for sentencing. We affirm the trial court’s judgment in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
ZAYAS, P.J., and BERGERON, J., concur.
26
OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
27
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Law
9882255
[SEGMENT 1]
This opinion is subject to revision before final
publication in the Pacific Reporter
UT 33
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
BREVAN BRINGHURST BAUGH,
Respondent.
No. 20220272
Heard December 13, 2023
Filed August 15, 2024
On Certiorari to the Utah Court of Appeals
First District, Cache County
The Honorable Angela Fonnesbeck
No. 181100862
Attorneys:
Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,
Salt Lake City, for petitioner
Emily Adams, Freya Johnson, Melissa Jo Townsend, Bountiful,
for respondent
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,
JUDGE BEAN, and JUDGE HOWELL joined.
Having recused themselves, JUSTICE HAGEN and JUSTICE POHLMAN
do not participate herein; DISTRICT COURT JUDGE JOSEPH BEAN and
DISTRICT COURT JUDGE ANTHONY HOWELL sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 In 2018, Brevan Bringhurst Baugh was charged with two
counts of aggravated sexual abuse of a child. At trial, the STATE v. BAUGH
Opinion of the Court
prosecution introduced evidence of three instances of alleged
abuse, 1 with the instances distinguished based on the location in
which they occurred. But the two counts charged were
distinguished based on date rather than location. And in the State’s
closing argument, it told the jurors they could use “any two” of the
three alleged instances of abuse to fulfill the elements of the
charged counts. The jury convicted Baugh on one count and
acquitted him on the other.
¶2 Baugh appealed. He argued there was a risk that the jury
did not unanimously agree on which instance of abuse supported
the count on which he was convicted. Baugh also contended that
his counsel rendered constitutionally ineffective assistance by
failing to request jury instructions that would have properly
instructed the jury on its constitutional duty to be unanimous as to
each element of each convicted count. The court of appeals agreed
with Baugh and vacated his sentence.
¶3 We granted the State’s certiorari petition. We affirm.
BACKGROUND
¶4 Between 2012 and 2014, Brevan Bringhurst Baugh lived at
his family home (Nibley Home) with his daughter Sasha 2 and her
mother. In April 2014, Baugh and Sasha’s mother commenced
divorce proceedings, and Baugh moved into a one-bedroom
apartment (Falls Apartment). Sasha and her siblings visited Baugh
while he was living at Falls Apartment. Several years later, Sasha
revealed to her therapist that Baugh had abused her, and her
therapist reported the allegations to the police.
¶5 During the investigation into the abuse, a detective asked
Sasha to call Baugh while the detective listened in. The detective’s
intent was to get Baugh to confess to the crimes. While on the call,
Baugh resisted admitting to the allegations and suggested that
Sasha was not remembering things correctly. He eventually
apologized to Sasha but remained adamant that the apology was
__________________________________________________________
1 We use “alleged abuse” here because, although Baugh was
convicted of one count of aggravated sexual abuse of a child and
acquitted of one count, we cannot know on which instance of
touching the jury based its conviction. Therefore, when referring to
the separate instances of touching, we use the term “alleged.”
2 A pseudonym.
Cite as: [CITATION]
Opinion of the Court
only for inadvertently exposing Sasha to pornography and for her
walking in on him while he was masturbating. When pressed,
Baugh acknowledged that if Sasha remembered abuse occurring,
he wouldn’t deny it. But he insisted that he had no recollection of
abusing Sasha, blaming his failure to remember on his marijuana
use at the time of the alleged acts.
¶6 After this confrontation call, the detective brought Baugh
in for questioning. Baugh restated that he and Sasha didn’t “have
the same recollection of the events.” But he did admit to exposing
Sasha to pornography and that she had once seen him
masturbating. The detective also asked whether Baugh had been
abusing Sasha “for years.” Baugh responded, “For years[?] Okay
no. No.” The detective then asked when was the last time he had
abused Sasha. Baugh responded that it was at Nibley Home.
¶7 On July 9, 2018, Baugh was charged with two counts of
aggravated sexual abuse of a child, a first-degree felony, in
violation of Utah Code subsection 76-5-404.1(4). The first count was
based on alleged conduct that occurred on or about 2012. The
second count was based on alleged conduct that occurred on or
about 2014.
¶8 At trial, Sasha testified that Baugh made her touch his
penis three times between 2012 and 2014. Sasha stated that during
each of these alleged incidents, Baugh put Sasha’s hand on his
penis and moved it up and down until “white stuff came out.”
Sasha testified that the first two alleged incidents occurred while
Baugh and Sasha were lying on Baugh’s bed in Nibley Home. The
final alleged incident occurred when Sasha was twelve and Baugh
had moved out of Nibley Home and into Falls Apartment.
¶9 Baugh countered Sasha’s testimony by testifying that none
of the alleged acts occurred. He insisted that, until Sasha’s
confrontation call, he had no suspicion of the accusations. While
Baugh did admit to accidentally exposing Sasha to pornography
and further admitted that she had walked in on him while he was
masturbating, he remained adamant that he never touched Sasha
and he never had Sasha touch him. He also insisted that the
comments he made during the phone call and subsequent
interrogations were not confessions to having abused Sasha. Baugh
testified that his answer to the final question the detective asked
him during the interrogation was describing the last time he
exposed Sasha to pornography. And when questioned about the
other statements he made on the confrontation call, he stated that
====== End of Part ====== STATE v. BAUGH
Opinion of the Court
he did not outright deny the allegations because he wanted to
validate Sasha’s feelings.
¶10 During closing argument, the prosecution stated that the
two counts charged could be “fulfilled with . . . any two of those
incidents that [Sasha] described, those can be the elements of both
of these counts.” Defense counsel did not object to this statement
nor request more specific unanimity instructions.
¶11 The jury was then instructed. Regarding both counts of
sexual abuse of a child, the jury was told that it must find:
(1) the Defendant, Brevan Baugh, (2) occupied a
position of special trust in relation to Sasha, and
(3) intentionally, knowingly, [or] recklessly touched
the anus, buttocks, genitalia or breast of Sasha or
otherwise took indecent liberties with her or caused
her to take indecent liberties with him, (4) with the
intent to arouse or gratify the sexual desire of any
person regardless of the sex of any participant, and
(5) at the time of the offenses Sasha was under the age
of fourteen.
The jury was also given a general unanimity instruction: “Because
this is a criminal case, every single juror must agree with the verdict
before the Defendant can be found guilty or not.”
¶12 Ultimately, the jury acquitted Baugh of Count One and
convicted him of Count Two. Baugh appealed the conviction. He
argued that his counsel provided ineffective assistance in failing to
request more specific unanimity instructions.
¶13 Article I, section 10 of the Utah Constitution contains the
Unanimous Verdict Clause, which reads, “In criminal cases the
verdict shall be unanimous.” To render a valid verdict under that
clause, the jury must be unanimous on all elements of the charged
crime. 3 Jury instructions must adequately convey this unanimity
requirement to the jury. 4
__________________________________________________________
3 [CITATION]
4 See [CITATION] (explaining
that jury instructions must “fairly instruct the jury on the law
applicable to the case,” and must “accurately convey the law”
(cleaned up)).
Cite as: 2024 UT 33
Opinion of the Court
¶14 In reviewing Baugh’s appeal, the court of appeals applied
these principles and reasoned that, much like in its recent decision
in [CITATION] Baugh’s counsel’s performed deficiently by
failing to request jury instructions that instructed the jury to be
unanimous on which specific act supported which specific charge. [CITATION]
It further reasoned that these ambiguous instructions could have
led some jurors to convict Baugh based on one alleged instance of
abuse and others to convict on another alleged instance, in violation
of the unanimity requirement. [CITATION] Because of that risk, the court of
appeals held that Baugh was prejudiced by defense counsel’s
deficient performance and vacated his conviction. [CITATION] We granted the
State’s petition for certiorari.
STANDARD OF REVIEW
¶15 The State challenges the court of appeals’ determination
that Baugh’s counsel provided constitutionally ineffective
assistance by failing to request more specific unanimity
instructions. “[W]e review the court of appeals’ decision for
correctness.” [CITATION]
ANALYSIS
¶16 An ineffective assistance of counsel claim has two
elements. “First, the defendant must show that counsel’s
performance was deficient.” [CITATION] “Second, the defendant must show
that the deficient performance prejudiced the defense.” [CITATION] “[F]ailure
to establish either prong is fatal to an ineffective assistance of
counsel claim.” [CITATION]
¶17 The State argues that neither prong of this test is satisfied.
First, the State contends that Baugh’s counsel’s performance was
reasonable because Unanimous Verdict Clause caselaw regarding
[SEGMENT 2]
__________________________________________________________
[CITATION] (cleaned up).
STATE v. BAUGH
Opinion of the Court
how a jury must be instructed on unanimity is ambiguous. Second,
the State argues that the court of appeals erred in its prejudice
analysis by failing to analyze whether there was a reasonable
probability that a jury would have convicted Baugh absent
counsel’s deficient performance. The appellate court’s error, the
State contends, is significant because Baugh did not carry his
burden of showing that any alleged deficient performance
prejudiced him.
¶18 We disagree with the State on both points.
I. BAUGH’S COUNSEL PERFORMED DEFICIENTLY BY FAILING TO
REQUEST A MORE DETAILED UNANIMITY INSTRUCTION
¶19 To constitute deficient performance, counsel’s
representation must fall “below an objective standard of
reasonableness.” Reasonableness is determined by “prevailing
professional norms.” Whether “counsel’s actions can be
considered strategic plays an important role in our analysis” of
whether counsel’s performance was deficient, but lack of strategic
advantage is not conclusive in determining whether counsel’s
performance was unreasonable. “A reviewing court must always
base its deficiency determination on the ultimate question of
whether counsel’s act or omission fell below an objective standard
of reasonableness.”
¶20 The State challenges the court of appeals’ deficient
performance analysis, claiming that the court of appeals
misapprehended Unanimous Verdict Clause caselaw. In its
analysis, the court of appeals relied on [CITATION] to determine that
Baugh’s counsel’s performance was deficient. The court reasoned
that, in [CITATION], it had correctly understood Unanimous Verdict
Clause caselaw. In that case, the court dictated that “[w]here
neither the charges nor the elements instructions link each count to
a particular act, instructing the jury that it must agree as to which
criminal acts occurred is critical to ensuring unanimity on each
__________________________________________________________
[CITATION] (cleaned up).
[CITATION] (citing
[CITATION]).
Cite as: 2024 UT 33
Opinion of the Court
element of each crime.” 18 And because neither the charges, the jury
instructions, nor the State’s presentation of evidence in Baugh’s
case linked specific conduct to each count, the court of appeals held
that Baugh’s counsel’s failure to request more specific unanimity
instructions constituted deficient performance. 19
¶21 But the State argues that the caselaw regarding the kind of
jury instructions necessary to ensure unanimity was not clear when
[CITATION] was decided. The court of appeals had, according to the State,
incorrectly treated [CITATION]—a plurality opinion—as
established precedent and had extended its narrow holding past
what this court intended. Without [CITATION] as established
precedent, the State argues that the court of appeals’ reasoning falls
apart because any remaining binding precedent was either not
dispositive or inapplicable.
¶22 We now begin our analysis with our own review of the
relevant caselaw on the Unanimous Verdict Clause in article I,
section 10 of the Utah Constitution.
¶23 The Unanimous Verdict Clause requires that “the [jury’s]
verdict shall be unanimous” in all criminal cases. 21 It is not enough
that the jury find the defendant “guilty of some crime.” 22 For
example, a verdict would not be unanimous “if some jurors found
a defendant guilty of a robbery committed on December 25, 1990,
in Salt Lake City, but other jurors found him guilty of a robbery
committed January 15, 1991, in Denver, Colorado, even though all
jurors” agreed that he was guilty of robbery. 23 The jury must be
unanimous “as to a specific crime and as to each element of the
crime” to comply with the Unanimous Verdict Clause. 24 Neither
party disputes this premise.
¶24 Although our caselaw is clear that the jury must be
unanimous as to each element of each count of a crime, it is less
__________________________________________________________
18 [CITATION]
21 UTAH CONST. art. I, § 10.
22 [CITATION] (cleaned up).
23 [CITATION] (cleaned up).
24 [CITATION] (plurality opinion).
STATE v. BAUGH
Opinion of the Court
clear how that unanimity requirement must be conveyed to the jury
in multiple-act cases like Baugh’s, where a defendant is charged
with multiple counts of a crime with identical elements. 25
¶25 In [CITATION], the defendant was charged with one count of
sexual abuse of a child. 26 The prosecution presented evidence of
several acts, any one of which could satisfy the touching element of
the charge.27 The unanimity instruction given to the jury stated that
there was “no requirement that the jurors be unanimous about
precisely which act occurred or when or where the act or acts
occurred.” 28 On appeal, we held that it was plain error for the trial
court to give these instructions, as they could have led the jurors to
believe that it was acceptable to render a non-unanimous verdict.29
But [CITATION] did not establish clear precedent on multiple-act cases
because the relevant portion of the opinion was a plurality. 30
¶26 Our next case on the issue, [CITATION], provided no
more clarity regarding the form jury instructions should take to
ensure a unanimous verdict.31 In that case, the defendant
challenged jury instructions that presented two alternative theories
for finding aggravating factors, without mentioning unanimity. 32
__________________________________________________________
25 We note that we establish in [CITATION]—which is
published simultaneously with this case—how unanimity must be
conveyed to the jury in multiple-act cases in which charges are not
connected to specific conduct in the jury instructions. [CITATION] was charged with
multiple offenses, but the solitary sexual abuse charge is the only
one relevant to our analysis.
27 Id. ¶ 5.
28 Id. ¶ 65.
29 Id. ¶¶ 65, 68 (plurality opinion); id. ¶ 70 (Howe, C.J.,
concurring in part and dissenting in part); id. ¶ 79 (Zimmerman, J.,
concurring in part and dissenting in part).
30 See id. ¶¶ 67, 68 (Russon, J., concurring in the result); id. ¶ 70
(Howe, C.J., concurring in part and dissenting in part); id. ¶ 79
(Zimmerman, J., concurring in part and dissenting in part).
31 [CITATION].
32 Id. ¶¶ 15–16.
Cite as: 2024 UT 33
Opinion of the Court
In holding that it was not plain error for the court to give these jury
instructions, we stated that the instructions created the risk of only
slight confusion as to the unanimity required by the jury.[CITATION] The
State argues that [CITATION] establishes that the lack of a specific
unanimity instruction only ever creates a risk of “slight confusion”
for a jury. But that reads too much into this court’s opinion.
¶27 The [CITATION] court stated that it was “unconvinced that the
slight confusion that may have arisen from the wording of the
instructions used [at trial] present[ed] a reasonable likelihood of a
more favorable result for defendant.” [CITATION] Such language indicates a
case- and fact-specific holding, rather than a general
pronouncement, and we decline to extend this holding beyond that
case.
¶28 In [CITATION], which had not been decided at the time of
Baugh’s trial, the court of appeals surveyed the state of the law
regarding jury unanimity instructions in multiple-act cases. [CITATION] In
[CITATION], the defendant was charged with six counts of aggravated
sexual abuse of a child. [CITATION] But, as in [CITATION], the jury instructions did
not connect each count to a separate instance of touching. [CITATION] The jury
was given a general unanimity instruction informing it that all
jurors must be unanimous regarding the guilt of the defendant. [CITATION]
During deliberations, the jury asked twice for clarification “on how
the counts work,” and asked in particular how to “weigh each
count when they are all the same.” [CITATION] The court referred the jury
back to its instructions. [CITATION] The jury convicted [CITATION] on two counts
and acquitted him on the rest. [CITATION]
STATE v. BAUGH
Opinion of the Court
¶29 The court of appeals reviewed the jury’s verdict to
determine whether counsel was ineffective for failing to request
more specific unanimity instructions. 42 It reasoned that the state of
the law “should have been readily apparent” based on our holding
in [CITATION]: “[w]here neither the charges nor the elements
instructions link each count to a particular act, instructing the jury
that it must agree as to which criminal acts occurred is critical to
ensuring unanimity on each element of each crime.” 43 This blanket
statement fails to recognize the reduced weight that [CITATION] must
be given as a plurality opinion. Because the relevant portion of
[CITATION] did not represent the opinion of the majority of the court,
the court of appeals could rely only on that case’s outcome as
binding precedent, not its reasoning. 44
¶30 Although the court of appeals may have overstated the
weight of the holding in [CITATION], that case was still the most
relevant precedent at the time and thus an indicator to reasonable
counsel of the range of appropriate actions. Relevant case law is one
of several factors to consider in assessing the reasonableness of
counsel’s performance. And that counsel’s performance was
objectively unreasonable because not requesting specific unanimity
instructions effectively lowered the State’s burden of proof was
another factor. Taken together, these two factors still support the
court of appeals’ conclusion that Alires’s counsel performed
deficiently despite the court’s overstatement of [CITATION] as binding
precedent.
¶31 Having reviewed the state of the law regarding the
standard for instructing a jury on unanimity, we turn to Baugh’s
case. Despite the unsettled law in this area, it is clear in Baugh’s
case that the jury was not adequately instructed.
¶32 Baugh was charged with sexual abuse of a child. Under
Utah Code subsection 76-5-404.1(2)(a), a person is guilty of sexual
abuse of a child if “the actor: . . . [1] touches, whether over or under
__________________________________________________________
42 [CITATION] (citing [CITATION] (plurality
opinion)).
[SEGMENT 3]
44 See [CITATION] (explaining that
plurality opinions “do not constitute binding precedent); see also
[CITATION] (stating that a
plurality opinion’s analysis “is not binding”).
Cite as: 2024 UT 33
Opinion of the Court
the clothing, the buttocks or pubic area of a child; . . . the breast of
a female child; or . . . otherwise takes indecent liberties with a
child,” and “[2] the actor’s conduct is with intent to . . . cause
substantial emotional or bodily pain to any individual; or . . .
arouse or gratify the sexual desire of any individual.” Caselaw is
clear that the jury must be unanimous as to each element of each
count of that crime. [CITATION] In practice, this means that the jury must
agree on which incident of touching satisfies each count. If the jury
does not agree on which act relates to each count, then its verdict
violates the Unanimous Verdict Clause.
¶33 The jury in Baugh’s case was given a general unanimity
instruction that read, “Because this is a criminal case, every single
juror must agree with the verdict before the defendant can be found
guilty or not guilty.” Trial counsel did not request a more specific
unanimity instruction.
¶34 The circumstances of Baugh’s case created an
unacceptable risk of a non-unanimous verdict, and a reasonable
attorney would have recognized that risk. Baugh was charged with
two counts of aggravated sexual abuse of a child for alleged acts
occurring in 2012 and 2014. During his trial, the State presented
evidence to the jury of three instances of touching. But the jury was
not told when these alleged instances occurred, only where the
alleged instances occurred. The State presented evidence of two
instances of touching that occurred at Nibley Home and one that
occurred at Falls Apartment.
¶35 The State’s presentation of evidence created tension
between the evidence and the counts, which were distinguished
only by date: one count for 2012 and one count for 2014. Because
Baugh lived in both Nibley Home and Falls Apartment in 2014, that
tension left room for ambiguity. And that ambiguity left room for
non-unanimity. The jurors could agree that touching occurred in
2014 but disagree as to whether the specific instance of touching
occurred at Nibley Home or Falls Apartment. And did the jury’s
verdict did not eliminate the problem. The jury acquitted Baugh on
the 2012 count but convicted him on the 2014 count, leaving open
the possibility that the jurors may have disagreed on which specific
instance of touching the State had proven.
___________________________________________________________
[CITATION]
STATE v. BAUGH
Opinion of the Court
¶36 The State also declined to connect specific instances of
touching with a count. [CITATION] We have noted that “courts in Utah and
elsewhere have determined that a unanimity problem can be
remedied by prosecutorial election.”[CITATION] That is, the harm that can
flow from a lack of a specific unanimity instruction might, in some
cases, be mitigated if the prosecutor elects, in closing argument, to
spell out for the jury which alleged actions correspond to which
charged counts. The absence of prosecutorial election here further
indicates that reasonable counsel would have been concerned
about unanimity because there was nothing to mitigate the harm of
erroneous jury instructions.
¶37 The presence of a legal error “does not necessarily mean
that defense counsel’s failure to object to the error amounted to
deficient performance.” [CITATION] And there is a “wide range of reasonable
professional assistance.” [CITATION] But taking each of the above
opportunities for jury confusion together, no reasonable attorney
would have failed to request more specific unanimity instructions.
¶38 Baugh’s counsel was presented with three instances of
touching that were not specifically attached to the two counts
charged. And in the State’s closing argument, it told the jury that it
could fulfill the counts with any two of the alleged instances of
conduct. This statement suggested to the jury that it could
__________________________________________________________
[CITATION] In criminal cases in which the State has not specified which
acts it relied on to support each charged count, it may elect to do so
during trial. See [CITATION]. We call this
decision prosecutorial election. See [CITATION]. For example, in this case, the two counts of sexual
abuse were not connected to specific acts when charged. They were
distinguished only by approximate date. The State, in its closing
argument, could have elected to attach one of the three alleged acts
to a specific count instead of telling the jury that it could choose
from any of the three alleged acts to satisfy the elements of either
count. That election might have mitigated the harm flowing from
Baugh’s counsel’s failure to ask for a specific unanimity instruction.
But the State declined to make an election, and Baugh, as we
describe below, was harmed by his counsel’s failure to act.
[CITATION]
Cite as: 2024 UT 33
Opinion of the Court
impermissibly mix-and-match the instances of touching when
reaching its verdict. The high risk for non-unanimity was clear.
¶39 Further, there were no circumstances in this case that
mitigated the risk of a non-unanimous verdict. The evidence for
each of the instances of touching was fairly equal in persuasive
force. 50 So the evidence was not overwhelmingly stronger for any
one instance such that any reasonable jury could have only
convicted on that count.
¶40 And there was no strategic advantage to not requesting
more specific unanimity instructions. Doing so would not have
directed the jury to any especially damaging evidence, and failing
to do so effectively lowered the State’s burden of proof for the
touching element. 51
¶41 Because the risk of a non-unanimous verdict would have
been clear to reasonable counsel, Baugh’s counsel’s failure to
request more specific unanimity instructions was objectively
unreasonable. Therefore, his counsel’s performance was deficient.
II. BAUGH’S COUNSEL’S DEFICIENT PERFORMANCE
PREJUDICED BAUGH
¶42 To prevail on an ineffective assistance of counsel claim, the
defendant must show that “counsel’s errors actually had an
adverse effect on the defense,” 52 and that there is a “reasonable
probability that, but for [those] . . . errors, the result of the
proceeding would have been different.” 53 “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” 54 It is insufficient “for the defendant to show that the
__________________________________________________________
50 See [CITATION].
51 See [CITATION] (explaining that failing to
request more specific unanimity instructions in the face of a risk of
a non-unanimous verdict “effectively lower[s] the State’s burden of
proof”).
52 [CITATION] (cleaned up).
53 [CITATION]; see also [CITATION] (explaining Strickland’s
prejudice standard).
54 [CITATION]; see also [CITATION]
(quoting [CITATION]).
STATE v. BAUGH
Opinion of the Court
errors had some conceivable effect on the outcome of the
proceeding.” 55 And “a verdict or conclusion only weakly
supported by the record is more likely to have been affected by
errors than one with overwhelming record support.” 56
¶43 The State argues that the court of appeals failed to consider
whether the jury would have convicted absent defense counsel’s
error. In the State’s view, the court of appeals completed only a
portion of the Strickland prejudice analysis: whether the jury
convicted Baugh because of counsel’s deficient performance.
¶44 While we acknowledge the court of appeals may not have
signposted its inquiry as clearly as possible, we are satisfied that
the court conducted the requisite analysis. And we agree that
counsel’s deficient performance prejudiced Baugh.
¶45 The court of appeals began its analysis by correctly
summarizing Strickland’s prejudice standard. [CITATION] The court then
considered the totality of the evidence before the jury. Sasha
testified about three instances of abuse—two occurring at Nibley
Home and one at Falls Apartment—but distinguished these
instances only by the location. [CITATION] And “[t]he jury instructions
distinguished the counts, not by location but based on the date of
the alleged abuse—2012 for count one and 2014 for count two.” [CITATION]
But in 2012, Baugh lived at both Nibley Home and Falls
Apartment. [CITATION]
¶46 So the jury received evidence of the alleged instances of
touching based only on location but was expected to connect these
instances of touching to counts distinguished only by date. And
although only those instances taking place at Nibley Home could
have been connected to the first count, any of the three alleged
instances could have been connected to the 2014 count because
Baugh lived at both Nibley Home and Falls Apartment in 2014.
Given that the jury acquitted Baugh on the 2012 count and
[SEGMENT 4]
__________________________________________________________
[CITATION]
Cite as: 2024 UT 33
Opinion of the Court
convicted him on the 2014 count, its verdict didn’t resolve the risk
that some jurors convicted based on an act that took place at Nibley
Home, while others convicted based on an act that occurred at Falls
Apartment.
¶47 Next, the court of appeals considered Baugh’s
“confessions” and his explanation of them at trial. During the
investigation, Sasha called Baugh to confront him about the
abuse. [CITATION] The State argues that Baugh admitted to the abuse during
the call saying, “if you say I did it, then—then I’m sure I did,” and
“I’m not going to deny it.” Later, during interrogation, the detective
asked Baugh if he had been abusing Sasha for years, to which he
replied, “For years[?] Okay. No.” The State paints that as another
admission. And when asked when he last abused Sasha, Baugh
said it was “at the Nibley [Home].” A third admission, according
to the State.
¶48 But, as the court of appeals noted, Baugh’s statements
during the confrontation call and subsequent interrogations do not
amount to an unequivocal confession. [CITATION] During the confrontation
call, interrogation, and at trial, Baugh maintained that he had not
abused Sasha. And he offered testimony at trial that his
“admissions” were simply an attempt to validate his daughter’s
feelings despite her “getting things mixed up.”
¶49 Finally, the court of appeals considered the State’s closing
argument, where the prosecutor told the jurors that the “two counts
can be fulfilled with . . . any two of those experiences” described at
trial and that “any two of those incidents . . . can be the elements of
both of these counts.” [CITATION]
¶50 Reviewing the evidence as a whole, the court of appeals
concluded that its “confidence in the outcome ha[d] been
undermined.” [CITATION] Because the jury was instructed on the counts
based on the dates of the alleged instances but was only given
evidence of the counts based on the location of those instances, the
court reasoned, there was “a reasonable probability that the jurors
__________________________________________________________
[CITATION]
STATE v. BAUGH
Opinion of the Court
did not agree on which act of alleged abuse supported each
count.” [CITATION]
¶51 And, relevant to the State’s claim that the court of appeals
did not consider whether the jury would have come to a different
conclusion absent counsel’s errors, the appellate court explained
that it was not confident that the jury would have come to the same
conclusion if it had received more specific unanimity instructions. [CITATION]
And it noted that the evidence presented was not overwhelmingly
stronger for either of the two counts. [CITATION] Further, despite some
evidence that Baugh had confessed, his explanation of his
statements created the possibility that a reasonable jury could have
found his “confession” unconvincing. [CITATION] Therefore, the court of
appeals concluded, it could not “identify one charge on which [it
could] say with confidence [the jury] would have convicted.” [CITATION] As
such, the court found “a reasonable probability that but for defense
counsel’s” failure to request more specific unanimity instructions,
“the proceeding’s outcome would have differed.” [CITATION]
¶52 The court of appeals applied the correct standard in its
analysis of the prejudicial effect of counsel’s error, considered the
totality of the evidence presented at trial, and correctly concluded
that there was a reasonable probability of a different outcome had
defense counsel requested more specific unanimity instructions.
CONCLUSION
¶53 In order to succeed on his claim of ineffective assistance of
counsel, Baugh had to show that his counsel’s performance was
deficient and that the deficient performance prejudiced him. The
court of appeals correctly concluded that Baugh made those
showings. Because the risk of non-unanimity was significant, and,
given the state of the law regarding jury unanimity as to elements,
Baugh’s counsel performed deficiently by failing to request more
specific unanimity instructions. Further, there was a reasonable
__________________________________________________________
[CITATION]
Cite as: [CITATION]
Opinion of the Court
probability that the jury would not have convicted Baugh had the
error not occurred. Therefore, we hold that Baugh’s counsel was
ineffective and affirm the court of appeals’ vacation of Baugh’s
conviction.
2024 UT App 79
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LISA YVONNE OREILLY,
Appellant.
Opinion
No. 20230104-CA
Filed May 23, 2024
Sixth District Court, Panguitch Department
The Honorable Mandy Larsen
No. 181600010
Nicolas C. Wilde and Trevor J. Lee,
Attorneys for Appellant
Barry Huntington and Jerry Jaeger,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.
ORME, Judge:
¶1 Lisa Yvonne Oreilly appeals her convictions for possession
of methamphetamine, possession of marijuana, and possession of
drug paraphernalia. Oreilly argues she was denied her
constitutional right to counsel and, thus, is entitled to a new trial.
Orielly’s challenge is based on the assertion that her trial counsel
labored under an actual conflict of interest because counsel
represented both her and her codefendant, Michael Thompson.
We agree with Oreilly that because of the joint representation she
is not required to show prejudice under the traditional ineffective
assistance analysis, but we deny the requested relief because State v. Oreilly
Oreilly has not carried her burden of showing the existence of an
actual conflict of interest.
BACKGROUND 1
¶2 Acting on a tip, a Utah Highway Patrol trooper and
sergeant located a vehicle parked in front of a rest stop bathroom
in February 2018. The vehicle was empty and, according to the
sergeant, “parked crooked, unusual.” Less than a minute after the
officers arrived, Oreilly and Thompson emerged from the
bathroom. Both officers described Oreilly and Thompson as
nervous and seemingly under the influence of drugs.
¶3 The officers approached and made contact with Oreilly
and Thompson. Thompson was arrested when a driver license
check revealed two outstanding arrest warrants. After Oreilly
said she did not have a valid driver license and the officers
determined neither Oreilly nor Thompson owned the vehicle, the
decision was made to have the vehicle towed.
¶4 At some point during the encounter, a trained K-9 handler
with the Garfield County Sheriff’s Office arrived at the scene and
walked his dog around the vehicle. The dog alerted to the
presence of drugs. The officers then conducted a physical search
of the vehicle and found marijuana, marijuana grinders, a
marijuana pipe, a baggie containing methamphetamine, a clear
container containing methamphetamine, and syringes containing
methamphetamine. All of the items were in areas accessible to
both the driver and the passenger.
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” [CITATION]
20230104-CA
UT App 79 [CITATION]
¶5 Thompson told the trooper that all the seized evidence
belonged to him. Oreilly told the sergeant and the trooper that the
pipe and a grinder belonged to her. She also informed the trooper
that the substance in the syringes was methamphetamine, not
heroin, stating, “I can guarantee you that whatever you did find,
it ain’t heroin. I could guarantee you that it’s probably
methamphetamine.” The trooper observed and took pictures of
needle marks and bruising on Oreilly’s arms. The trooper later
reviewed a video recorded while Oreilly and Thompson were
seated in his patrol car. The video showed Oreilly acknowledging
to Thompson that she knew used syringes were present in the
vehicle and stating that she had disposed of a syringe in the rest
stop bathroom. The video also showed Oreilly and Thompson
discussing who should take responsibility for the seized evidence,
with Oreilly stating, “So, I don’t know what to do and this is
gonna sound really shitty but maybe you should take the blame
and then I’ll bail you out babe.” Later in the recording, Oreilly
said to Thompson, “If it goes all on me, then I can’t get you out. . . .
Is it selfish of me to make you take all the rap? Was that selfish of
me?”
¶6 Oreilly was subsequently charged with possession of
methamphetamine, possession of marijuana, and possession of
drug paraphernalia. Thompson was charged in a separate
information with the same crimes. At their initial appearance,
Oreilly and Thompson were provided with a copy of the
applicable information and advised of their right to counsel. Both
defendants asked the court to continue the initial appearances
until they could hire an attorney. After noting that Oreilly’s case
and Thompson’s case were assigned to two different judges, the
district court stated, “I think just pretrial, we could probably keep
the cases together.”
[SEGMENT 5]
¶7 In June 2018, an attorney appeared before the district court
on behalf of both Oreilly and Thompson. When the court asked
whether the two matters should be heard together, the attorney
20230104-CA
UT App 79 State v. Oreilly
responded, “Yeah. It’s the same facts and we can consolidate
them[.]” The cases were then set for a preliminary hearing, but
Oreilly later waived her right to a preliminary hearing. The
attorney represented Oreilly at her arraignment and entered a
plea of not guilty on her behalf.
¶8 The attorney subsequently attended several hearings on
various matters involving Oreilly’s case. Nothing in the
transcripts of these hearings indicates that the district court ever
inquired into the propriety of the attorney’s joint representation
of Oreilly and Thompson. Nor does the record show that the
attorney or Oreilly raised any concerns with the court stemming
from the attorney’s joint representation. In fact, at a pretrial
conference in January 2020, it was the attorney who asked the
court to “consolidate the two cases and try them together.” In May
2020, the attorney again told the district court he had “no
objection to consolidating the cases and just having one jury and
one trial for both cases.” In June 2021, the attorney indicated he
and his clients were “comfortable” with a joint trial. Oreilly was
present for this hearing. She did not express any concerns with
the attorney’s joint representation, and the district court did not
inquire into the possibility of a conflict of interest.
¶9 Oreilly and Thompson were tried together in August 2022.
Neither defendant was incarcerated at the time of trial and neither
appeared for the one-day trial. The State presented, inter alia, the
testimony of the trooper and the sergeant describing their
encounter with Oreilly and Thompson, as summarized above.
The attorney for Oreilly and Thompson did not call any witnesses
for the defense, but during closing argument, he highlighted that
the vehicle in which the drugs and paraphernalia were found was
not owned by Oreilly or Thompson, implying the items could
belong to the owner. The attorney also questioned whether the
officers acted properly in video-recording Oreilly and Thompson
while they sat in the trooper’s patrol car.
[CITATION] State v. Oreilly
¶10 The jury found Oreilly and Thompson guilty of all charged
crimes, and the court later imposed sentences for each. Oreilly
then filed this timely appeal.
ISSUE AND STANDARD OF REVIEW
¶11 Oreilly seeks reversal of her convictions based on a claim
of ineffective assistance of counsel. The Sixth Amendment to the
United States Constitution guarantees a criminal defendant the
right to effective assistance of counsel. 2 See [CITATION]. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as a
matter of law.” [CITATION].
¶12 Typically, a defendant challenging her conviction based on
ineffective assistance of counsel must demonstrate that counsel’s
performance was deficient and that she was prejudiced by the
deficient performance. See [CITATION]. Here, however, Oreilly’s ineffective assistance claim is
based on allegations that her attorney’s joint representation of her
and her codefendant gave rise to a conflict of interest. Absent
special circumstances not present in this matter, see [CITATION],
an appellant asserting an
ineffective assistance claim based on an actual conflict of interest
2. Oreilly also raises an ineffective assistance of counsel claim
under Article I, Section 12 of the Utah Constitution. Because she
does not differentiate between her federal and state claims, we
follow the lead of the Utah Supreme Court and “consider only the
claim based on the federal Constitution.” [CITATION].
20230104-CA
UT App 79 State v. Oreilly
arising from joint representation can prevail without
demonstrating prejudice if she can show the alleged conflict
actually existed and that it adversely affected her attorney’s
performance, [CITATION].
¶13 “To establish an actual conflict of interest, [an appellant]
must show a conflict that affected counsel’s performance—as
opposed to a mere theoretical division of loyalties.” [CITATION]
(quotation simplified). A conflict arising from joint representation affects counsel’s
performance if “arguments or actions allegedly omitted would
likely have been made by other counsel” and there was no
“tactical reason (other than the asserted conflict) for the
omission.” [CITATION]
ANALYSIS
I. A Preliminary Matter
¶14 As an initial matter, the State argues Oreilly cannot
proceed under the theory that an actual conflict existed because
she did not timely object to the attorney’s joint representation.
This argument is based on a misreading of both United States
Supreme Court and Utah precedent.
¶15 In [CITATION], the United
States Supreme Court addressed a claim that trial counsel was
constitutionally ineffective because he simultaneously
represented three codefendants. [CITATION]. Counsel repeatedly
alerted the trial court to a “probable risk of a conflict of interests”
arising from his joint representation. [CITATION]. The trial
court, however, failed to appoint new counsel or inquire into the
nature and scope of the alleged conflict. [CITATION]. Under these
circumstances, the Supreme Court held that the defendant was
entitled to a presumption the conflict resulted in ineffective
20230104-CA
UT App 79 State v. Oreilly
assistance of counsel and the “automatic” reversal of his
conviction. [CITATION]. Two years later, in [CITATION], the Supreme Court refused to extend its automatic
reversal ruling to a situation where the alleged conflict arising
from joint representation was not brought to the attention of the
trial court. See [CITATION]. The Supreme Court held that a
presumption of an actual conflict and accompanying automatic
reversal of a conviction are appropriate only when the trial court
fails to provide “a defendant who objects to multiple
representation” with “the opportunity to show that potential
conflicts impermissibly imperil his right to a fair trial.” [CITATION].
Otherwise, “[u]nless the trial court knows or reasonably should
know that a particular conflict exists, the court need not initiate
an inquiry.” [CITATION].
¶16 In [CITATION], this court
applied the holdings in Holloway and Cuyler to a situation in
which the defendant and his codefendant were represented by
two attorneys from the same public defender office. See [CITATION].
This court noted that the Sixth Amendment does not
require a trial court to question the propriety of joint
representation sua sponte unless the court knows or reasonably
should know that a conflict exists because of the joint
representation. [CITATION]. As the Supreme Court stated in
[CITATION], “[a]bsent special circumstances, . . . trial courts may
assume either that multiple representation entails no conflict or
that the lawyer and his clients knowingly accept such risk of
conflict as may exist.” [CITATION]. See also [CITATION] (“[W]here counsel makes
no objection at trial, the trial court may presume that no improper
conflict due to joint representation is present.”). Instead, the
presumption of ineffective assistance and the automatic reversal
remedy established by Holloway are triggered only when the trial
court knew or should have known of a potential conflict and
failed to investigate. [CITATION]. One such situation—
20230104-CA
UT App 79 State v. Oreilly
the one present in Holloway—is when a trial court fails to take
adequate steps after a potential conflict is brought to its attention
by an “objecting defendant.” [CITATION] at 73 (“The [CITATION] court explained
that the [CITATION] presumption of prejudice from a possible
conflict of interest is only appropriate in cases where the trial
court did not provide an objecting defendant with an opportunity
to show that potential conflicts impermissibly imperil his right to
a fair trial.”) (quotation simplified).
¶17 The State misreads these cases as precluding a criminal
defendant from raising an ineffective assistance claim based on a
conflict of interest arising from joint representation without first
showing she made a timely objection to the joint representation—
a situation not present here. The State overlooks our cogent
summary of the rule applicable to joint representation set out in
[CITATION]:
[W]here . . . the potential conflict is brought to the
attention of the trial court by counsel before or
during the early stages of trial, the trial court must
take adequate steps to resolve the issue. If a trial
court fails to investigate such a potential conflict of
interest, we presume prejudice and reverse. A
defendant who fails to bring a potential conflict to
the attention of the trial court must show on appeal
that an actual conflict of interest existed which
adversely affected his or her lawyer’s performance.
[CITATION] at 922–23 (citations omitted).
[SEGMENT 6]
¶18 Thus, under our precedent, Oreilly’s failure to object to the
attorney’s joint representation does not preclude her from raising
an ineffective assistance claim based on allegations of a conflict of
interest arising from joint representation. Rather, her failure to
timely object means that she does not benefit from an automatic
reversal of her conviction. Instead, she is required to show the
20230104-CA
UT App 79 State v. Oreilly
existence of “an actual conflict which affected . . . her attorney’s
performance,” and if she does make such a showing, she need not
also “demonstrate prejudice.” [CITATION] (emphasis added). Therefore, Oreilly is not required to show
prejudice under the traditional ineffective assistance analysis, but
she can prevail on the particular ineffective assistance claim she
has raised only if she meets her appellate burden of showing that
an actual conflict adversely affected her attorney’s
representation. 3
II. No Actual Conflict
¶19 Having determined that Oreilly’s claim of ineffective
assistance is properly before this court, we must address whether
she has met her burden of showing the existence of an actual
conflict of interest that affected her counsel’s performance. “In
order to show an actual conflict of interest existed, a defendant
must point to specific instances in the record to suggest an actual
conflict or impairment of his or her interests. There is no violation
where the conflict is irrelevant or merely hypothetical; there must
be an actual, significant conflict.” [CITATION]
¶20 In [CITATION], this court considered whether the appellant met
his burden of showing an actual conflict where there was a
“substantial disparity” in the evidence incriminating him and his
jointly represented codefendant. [CITATION] This court borrowed its
substantial-disparity analysis from the Colorado Supreme Court’s
opinion in [CITATION] See [CITATION]
3. Oreilly does not claim she is entitled to the presumption her
counsel was ineffective because the trial court failed to investigate
a potential conflict of which it knew or should have known. See
[CITATION]
20230104-CA
UT App 79 State v. Oreilly
defendants were charged with widely differing criminal activity
and “the great bulk of the evidence introduced at trial was
directed toward [one defendant’s] alleged culpability.” [CITATION]
Because of counsel’s joint representation, he was unable to
highlight the evidentiary disparities to the jury. [CITATION]
Under these circumstances, the Colorado Supreme Court held
that the appellant met his burden of showing an actual conflict.
[CITATION] The Armstrong court explained the reasoning behind
permitting a defendant to demonstrate an actual conflict by
showing a substantial disparity in the evidence, stating that an
actual conflict existed because “[f]or one defendant, the disparity
should be emphasized to demonstrate the weakness of the case
against and lesser culpability of that defendant. For the other
defendant, any disparity in the quantity or quality of the evidence
should be ignored or diminished.” [CITATION]
¶21 But this court reached the opposite conclusion in Webb on
very different facts. There, two defendants represented by two
public defenders from the same office were charged with
aggravated robbery. [CITATION] We held that there
was no substantial disparity in the evidence notwithstanding the
fact that there was eyewitness testimony identifying only one of
the two defendants “as the robber in the store.” [CITATION] We noted
that (1) there was testimony the codefendant was directly
involved in the crime and (2) the jointly represented defendants
both testified at trial and “gave entirely consistent, corroborative
testimony” supporting their joint defense that other individuals
were culpable for the criminal conduct charged against them. [CITATION]
For these reasons, we concluded that “counsel’s loyalty was not
divided between [two codefendants] with actual conflicting
interests.” [CITATION]
¶22 We revisited the substantial disparity issue in State v.
Newman, [CITATION] We again
distinguished Armstrong on the basis that the jointly represented
defendants in Newman “were charged essentially with the same
20230104-CA
UT App 79 State v. Oreilly
crimes” whereas in [CITATION] the defendants were charged with
differing levels of participation in a single criminal episode. [CITATION]. Thus, we concluded, “the likelihood of a conflict” was
not present. [CITATION].
¶23 Oreilly argues there was a disparity in the weight of the
evidence between the methamphetamine charges brought against
her and Thompson because Thompson voluntarily admitted to
law enforcement that all the items found in the vehicle belonged
to him, but she admitted only to possession of the marijuana pipe
and grinder. 4 According to Oreilly, voluntary admissions are
among the strongest forms of evidence available to prosecutors
and Thompson’s admission is sufficient to establish the required
substantial disparity. But [CITATION], and [CITATION] all stand
for the proposition that the substantial disparity inquiry is not
focused solely on the quantum of evidence presented against each
codefendant. As we stated in [CITATION], a disparity in evidence is
not substantial unless the differing weight raises the “likelihood
of a conflict” because, for example, the codefendants were
charged with different conduct as in [CITATION]. See [CITATION]. That is not
the situation here.
¶24 Oreilly and Thompson were charged with the same three
crimes, and they presented the same defense at trial—attempting
to attribute the drugs and paraphernalia to the owner of the
vehicle. These circumstances are on the same footing as those in
[CITATION], where the jointly represented defendants were both
charged with the same crime—aggravated robbery—and they
pursued the same defense of placing the blame on third parties.
See [CITATION]. Similarly, in [CITATION], the three
4. Because we conclude Oreilly is not entitled to relief on her
ineffective assistance claim even if we consider Thompson’s
admission to law enforcement, it is not necessary to resolve the
State’s argument that Thompson’s statement was inadmissible
hearsay that Oreilly’s attorney could not comment on at trial.
20230104-CA
UT App 79 State v. Oreilly
codefendants were charged with “essentially” the same crimes
and presented the “common, unified defense” that the victim was
the aggressor in the incident. [CITATION]. In Newman, we
concluded there was no likelihood of a conflict under these
circumstances, distinguishing Armstrong by noting the
codefendants in Armstrong were charged with “disparate . . .
criminal conduct.” [CITATION] (quotation simplified). See also [CITATION] (“[W]hen co-defendants are accused of varying
degrees of participation in an episode of criminal conduct, joint
representation invariably places defense counsel in the middle of
conflicting interests.”) (emphasis added).
¶25 Oreilly has not identified any case in which a jointly
represented defendant charged with the same crimes as her
codefendant has shown that a disparity in the weight of the
evidence presented against each resulted in an actual conflict of
interest. Nor is this a case in which the rule should be extended to
such a situation, because even assuming the weight of the
evidence against Thompson exceeded the weight against Oreilly,
that disparity did not create the likelihood of a conflict.
¶26 Oreilly was charged with possession of
methamphetamine, possession of marijuana, and possession of
drug paraphernalia. “For possession charges, the circumstantial
evidence necessary to convict is evidence showing a sufficient
nexus between the accused and the contraband to permit an
inference that the accused had both the power and the intent to
exercise dominion and control over the contraband.” [CITATION] (quotation simplified). A
jury may consider, inter alia, “ownership and/or occupancy of the
residence or vehicle, presence of the defendant when the
contraband is discovered, the defendant’s proximity to the
contraband, previous drug use by the defendant (if the
contraband is drug-related), incriminating statements or
behavior, and presence of contraband in a specific area where the
defendant had control.” [CITATION] (quotation simplified). Although
20230104-CA
UT App 79 State v. Oreilly
Thompson told officers he owned the drugs and paraphernalia,
Utah law criminalizes possession, not ownership. Ownership is only
one of numerous factors that a jury may consider when it
evaluates whether a defendant is guilty of possession. See id.
¶27 Oreilly concedes the evidence against her “was not
insignificant.” As to the marijuana and paraphernalia charges, she
specifically told the trooper and the sergeant that the pipe and a
grinder belonged to her. The evidence showing Oreilly also
possessed methamphetamine included her conversation with
Thompson while they sat in the trooper’s patrol car. She told
Thompson she threw a syringe away in the rest stop bathroom.
That statement is consistent with the trooper’s testimony that
Oreilly appeared to be under the influence of drugs when she
exited the bathroom. There was also testimony Oreilly had needle
marks and bruising on her arms, indicating previous drug use.
Oreilly and Thompson also discussed the used syringes found in
the vehicle and whether it was illegal to keep them after using
them. Oreilly later told the trooper that any drugs officers found
were methamphetamine, not heroin. And, critically, there was
testimony that all the seized evidence was accessible to both the
driver and the passenger.
[SEGMENT 7]
¶28 Our review of the record confirms that any defense
Oreilly’s attorney could pursue on her behalf would not be
materially aided by Thompson’s admission that he owned all the
drugs and paraphernalia. “[P]ossession of a controlled substance
need not be exclusive and is often joint.” [CITATION] The
State’s evidence shows that Oreilly “had both the power and the
intent to exercise dominion and control over the contraband”
even if Thompson owned the contraband or also possessed it.
[CITATION] Thus,
Thompson’s admission of ownership did not diminish Oreilly’s
culpability on the possession charges, let alone potentially
exculpate her of the charges. Under the circumstances here,
20230104-CA
UT App 79 [CITATION]
ownership was essentially irrelevant and Oreilly has not shown
how her attorney could use Thompson’s admission in her favor.
Thus, there is no likelihood that any disparity in evidence gave
rise to an actual conflict of interest.
CONCLUSION
¶29 Because Oreilly has failed to demonstrate an actual conflict
of interest that resulted in the denial of effective assistance of
counsel, she is not entitled to the relief she seeks, and her
convictions are affirmed.
20230104-CA
[CITATION]
2024 UT App 29
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
NAWAF RAHEEM,
Appellant.
Opinion
No. 20200720-CA
Filed March 7, 2024
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151910845
Freyja Johnson, Emily Adams, and Hannah
Leavitt-Howell, Attorneys for Appellant
Sean D. Reyes and Marian Decker,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.
ORME, Judge:
¶1 Nawaf Raheem challenges his conviction for aggravated
sexual assault on several grounds. He contends that the State
provided insufficient evidence at trial to support the mens rea
element of the crime. He also argues that his trial attorney
(Counsel) was constitutionally ineffective by failing to investigate
and call a witness to testify in his defense. Relatedly, he seeks
reversal “in the interests of fairness” based on our recent reversal
of his co-defendant’s conviction on an ineffective assistance of
counsel claim. Lastly, he argues that improper statements from
the State and inadmissible testimony from its witnesses prevented
him from receiving a fair trial. We affirm. [CITATION]
BACKGROUND 1
¶2 One night in October 2012, Shannon 2 and a coworker
(Coworker) visited a hookah lounge that they frequented. The
hookah lounge was “a big party place” at which people would
smoke hookah, listen to music, and dance. There, Shannon and
Coworker were joined by another friend (Friend) and Shannon’s
then-boyfriend. Raheem, the owner of the hookah lounge, and
Kevin Salazar, a regular customer, were also there that night.
Shannon considered both Raheem and Salazar to be her friends.
¶3 At trial, Shannon testified that Salazar, who looked as if he
had been crying, asked her to join him in a storage closet to talk.
She stated that he shut the door behind her and began kissing her
neck. Shannon told Salazar to stop, that she had a boyfriend, and
that she “didn’t want to be in there,” but he was undeterred.
¶4 Because it had been “a minute,” Friend went to look for
Shannon. She knocked on the storage closet door and tried to
enter, but the door was locked. Raheem, who had also been
standing outside the storage closet, then knocked on the door.
Salazar opened the door for him, and Raheem “slid” inside. One
of the men locked the door behind Raheem, leaving Friend
outside and unable to enter. Friend testified that she then “just
started banging on the door.” At one point after Raheem entered,
Friend heard Shannon say, “Help me.” 3
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” [CITATION]
2. A pseudonym.
3. Friend initially testified that Raheem was still in the hallway
when she heard Shannon say, “Help me.” But on
(continued…)
20200720-CA
UT App 29 State v. Raheem
¶5 Shannon testified that when she heard Raheem knock on
the door, she thought she “was going to be able to walk out of that
room” and that Raheem would “stop the situation.” But instead
of helping Shannon, Raheem pushed her against Salazar, bent her
over, pulled down her pants, and vaginally penetrated her with
his penis. At the same time, Salazar removed his pants and
inserted his penis into her mouth. Shannon did not “agree[] to
what was going on,” but she could not recall whether she said
anything.
¶6 Shannon next recalled them all being on the ground, with
her on top of Salazar and Raheem behind her. Salazar “was
having sex vaginally and [Raheem] was anally.” She again could
not remember whether she said anything at that point. While
doing this, the men “high fived” each other and Salazar said,
“Double penetration.” At some point, they also removed
Shannon’s bra, leaving her “basically nude.”
¶7 When Shannon heard Friend “banging on the door” and
“yelling” “something about a key,” she began to cry, and Salazar
and Raheem stopped assaulting her. Shannon then dressed, ran
out of the storage closet, and left the hookah lounge. Shannon’s
boyfriend had already left the hookah lounge at that
point.
¶8 Friend estimated that approximately five minutes had
passed between when she began “banging on the door” and when
Shannon exited the closet. Friend pursued Shannon, briefly
returning to the hookah lounge to retrieve Shannon’s purse and
keys, and the two left. Friend testified that Shannon “was really
distraught,” crying and saying, “Help me.” In the car, Shannon
told Friend what had happened in the storage closet. Shannon
cross-examination, Friend clarified that she heard Shannon’s cry
for help after Raheem entered the storage closet.
[CITATION]
then dropped Friend off at home and told her that “she was going
to go home and call the police.”
¶9 Coworker testified that when Shannon returned from the
storage closet, “she was hysterical, sobbing,” and “barely able to
form sentences because she was crying so hard.” Shannon told
her, “I have to go. I have to get out of here,” and, “[W]e have to
go. I was raped. These two guys took me into a closet and raped
me.” Shannon then yelled “at a group of individuals” “something
to the effect of, ‘I can’t believe you did this. I’m going to make you
pay.’” Coworker offered to take Shannon to the emergency room,
but she declined the offer and “just wanted to go to her car.”
¶10 Shannon did not call the police when she arrived home.
Instead, she called another friend and told him that she had been
raped. The friend reported the rape to the police. A detective met
with Shannon that same night, and she told him what had
happened at the hookah lounge. The detective testified that
during the conversation, Shannon would not look him in the eye
and her posture was “slumped, saddened.”
¶11 The detective convinced Shannon to go to the hospital that
night for an examination. The examination revealed some bruises
and abrasions on Shannon’s body, as well as injuries to the
perineum, below the rectum, and to the rectum. The examining
nurse testified at trial that Shannon’s examination “stuck out” to
her because “it was the worst rectal injury [she had] seen on a
patient.” But she conceded that it was nonetheless possible for
those injuries to be the product of consensual sex. The nurse also
testified that, among other things, during the examination,
Shannon “stated she felt as though she blacked out during the
assault.”
¶12 At the time, Shannon did not “want to go forward with the
prosecution of the case” because she did not wish to cause stress
to her dying father. Given that she and Raheem “were around the
same areas, same places,” she saw Raheem “a few times” after
that night. But because she “didn’t want to make a scene,” and
[CITATION]
because she “wasn’t going to move forward with anything,” she
“acted like nothing happened” on such occasions. On
cross-examination, Shannon stated that she did return to the
hookah lounge with friends in 2013, but she did not recall seeing
Raheem at that time. She also stated she saw Raheem at a party in
2016 and that she came within eight feet of him. Shannon could
not remember whether she saw Salazar again after the night of the
party.
[SEGMENT 8]
¶13 In 2015, a year after her father passed away, Shannon was
contacted by the producers of a television program that dealt in
unresolved crimes. The producers were interested in her case and
Shannon agreed to participate in the show. As a result, the police
reopened the case.
¶14 With Shannon’s cooperation, the State charged Salazar and
Raheem each with one count of aggravated sexual assault.
Raheem and Salazar, represented by different counsel, were tried
jointly in 2019—nearly seven years after the sexual assault in the
storage closet. At trial, the State presented testimony from, among
others, Shannon, Friend, Coworker, the friend who called the
police, the detective who interviewed Shannon on the night of the
incident, a detective who interviewed Shannon in 2015, and the
examining nurse. That testimony is recounted, in relevant parts,
above. Of note, Shannon’s testimony contained multiple instances
in which she could not remember specifics and had to refresh her
memory by reviewing copies of her police interview, the report
from the sexual assault exam, and the preliminary hearing
transcript. Additionally, as detailed in Part III.A below, certain
statements made by the witnesses and by the prosecutors were
the subject of objections and a motion for mistrial.
¶15 As part of his defense case, Raheem called his brother and
a friend to testify. His brother testified that he was working at the
hookah lounge that night and that he eventually went looking for
Raheem. He stated that when he knocked on the storage closet
door, Raheem stepped out, followed by Shannon. He stated that
Shannon smiled at him and that she did not appear to be upset or
[CITATION] State v. [CITATION]
to have been crying. He had not heard “any screaming or crying
or anybody call for help” before knocking on the door. He testified
that Friend then appeared and pulled Shannon by the arm, and
the two “start[ed] walking and talking.”
¶16 Raheem’s friend testified that he was also at the hookah
lounge that night and that he saw Salazar and Shannon walk into
the storage closet, followed about a minute later by Raheem. He
did not hear “any crying, screaming or calls for help” coming
from the closet before or after Raheem entered. He stated that
approximately five minutes later, he saw Raheem’s brother knock
on the door and that Raheem, Salazar, and Shannon all exited the
closet. To him, Shannon did not appear upset or to have been
crying. He testified that Friend, who did appear upset, then
approached Shannon and pulled her away.
¶17 During closing argument, Counsel asserted, among other
things, that Shannon, Raheem, and Salazar engaged in a
consensual threesome in the closet. He argued that Shannon’s
returning to the hookah lounge in 2013 and coming within eight
feet of Raheem at the 2016 party suggested that she had not been
sexually assaulted that night. He further asserted that Shannon’s
testimony was unreliable and that it should be disregarded in its
entirety.
¶18 The jury convicted Raheem and Salazar as charged.
Subsequently, through new counsel, Raheem filed motions to
arrest judgment and for a new trial. In the motion to arrest
judgment, he argued, in relevant part, that the State failed to
prove that he “at the very least . . . acted recklessly in regard to
[Shannon’s] consent.” And in the motion for a new trial, Raheem
argued, among other things, that he was entitled to a new trial
because Counsel was ineffective for failing to investigate and call
Raheem’s then-girlfriend (Girlfriend) to testify as part of the
defense and that the State and its witnesses made several
impermissible statements throughout trial. The trial court denied
both motions.
[CITATION] State v. Raheem
¶19 Raheem appeals. 5
ISSUES AND STANDARDS OF REVIEW
¶20 Raheem raises three issues for our consideration. First, he
argues that the State failed to prove that he was at least reckless
as to Shannon’s nonconsent. He raised this argument before the
trial court in a motion to arrest judgment. 6 “We review a district
court’s grant or denial of a motion . . . to arrest judgment for
correctness.” [CITATION] (quotation simplified). We will “uphold a denial of the motion . . .
to arrest judgment based on an insufficiency of the evidence
5. Salazar separately appealed. See [CITATION]. We
reversed Salazar’s conviction and remanded for a new trial. See id.
¶ 60; infra Part II.B.
6. Citing [CITATION], the State
argues that this sufficiency challenge is unpreserved because it
could have been raised at trial. See id. ¶ 49 n.15 (“[A]n objection
that could have been raised at trial cannot be preserved in a
post-trial motion.”). In response, Raheem contends that the State’s
broad interpretation of Fullerton “skirt[s] the plain language” of
rule 23 of the Utah Rules of Criminal Procedure, which says that
“At any time prior to the imposition of sentence, the court upon
its own initiative may, or upon motion of a defendant shall, arrest
judgment if the facts proved or admitted do not constitute a public
offense, or the defendant is mentally ill, or there is other good
cause for the arrest of judgment.” Raheem further asserts that
“[CITATION] simply asserts that defendants cannot ‘preserve issues
like prosecutorial misconduct through motions to arrest
judgment.’” See [CITATION]. Because we
ultimately resolve the merits of this argument in the State’s favor,
we need not resolve this preservation issue. See [CITATION].
20200720-CA
UT App 29 State v. Raheem
claim, if some evidence exists from which a reasonable jury could
find that the elements of the crime had been proven beyond a
reasonable doubt.” Id. (quotation simplified). See [CITATION],
2020 UT 65, ¶ 31, 477 P.3d 1251 (“We reverse the denial of a
motion to arrest judgment only if the evidence, viewed in the light
most favorable to the verdict, is so inconclusive or so inherently
improbable as to an element of the crime that reasonable minds
must have entertained a reasonable doubt as to that element.”)
(quotation simplified).
¶21 Second, Raheem argues that Counsel was ineffective for
failing to investigate and present evidence at trial that would have
undercut Shannon’s credibility. Although Raheem raised this
issue in his motion for a new trial, “[t]here is no reason . . . to
depart from the standard of review set out in [CITATION] simply
because the appeal was preceded by a motion for new trial.” [CITATION],
805 P.2d 182, 185–86 (Utah 1990). That is, “ineffective
assistance of counsel claims present a mixed question of fact and
law.” Id. at 186 (citing [CITATION], 466 U.S. 668, 698
(1984)). We thus “review a trial court’s application of the law to
the facts for correctness and, if applicable, we review the court’s
findings of fact for clear error.” [CITATION], 2021 UT
App 74, ¶ 26, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah 2021).
See [CITATION], 2022 UT App 38, ¶ 31 & n.14, 509 P.3d 198, cert.
denied, 525 P.3d 1258 (Utah 2022).
¶22 Third, Raheem argues that “[i]mproper statements from
the State and inadmissible testimony from its witnesses prevented
[him] from receiving a fair trial.” 7 He also raised this argument in
a motion for a new trial. We “generally review a district court’s
denial of a motion for a new trial for abuse of discretion, but we
7. The State argues that although certain objectionable statements
were the subject of unsuccessful motions for mistrial, this
argument is also unpreserved because Raheem first raised the
“expanded cumulative-prejudice claim in a post-verdict motion.”
For the same reason discussed above, see supra note 6, we do not
reach this preservation argument.
20200720-CA
UT App 29 State v. Raheem
review any underlying legal conclusions for correctness.” [CITATION].
ANALYSIS
I. Sufficiency of the Evidence
¶23 To convict Raheem of aggravated sexual assault, the State
had to prove not only that Shannon did not consent to the sexual
activity that occurred in the storage closet but also that Raheem
was, at the very least, reckless as to Shannon’s nonconsent. See
Utah Code Ann. § 76-2-102 (LexisNexis 2017) (“Every offense not
involving strict liability shall require a culpable mental state, and
when the definition of the offense does not specify a culpable
mental state and the offense does not involve strict liability, intent,
knowledge, or recklessness shall suffice to establish criminal
responsibility.”); id. § 76-5-405(2)(a) (Supp. 2023) (stating that an
element of aggravated sexual assault includes the commission of
rape or forcible sodomy); [CITATION] (“The crime of rape [or forcible sodomy] requires proof not
only that a defendant knowingly, intentionally, or recklessly had
sexual intercourse [or engaged in sodomy], but also that he had
the requisite mens rea as to the victim’s nonconsent.”) (quotation
simplified). On appeal, Raheem challenges only the sufficiency of
the State’s evidence of his recklessness as to Shannon’s
nonconsent.
[SEGMENT 9]
¶24 A person acts recklessly
with respect to circumstances surrounding his
conduct or the result of his conduct when he is
aware of but consciously disregards a substantial
8. Because the applicable provisions of the Utah Code in effect at
the relevant time do not differ from those currently in effect in any
way material to this appeal, we cite the current version of the code
for convenience.
20200720-CA
UT App 29 State v. Raheem
and unjustifiable risk that the circumstances exist or
the result will occur. The risk must be of such a
nature and degree that its disregard constitutes a
gross deviation from the standard of care that an
ordinary person would exercise under all the
circumstances as viewed from the actor’s
standpoint.
Id. § 76-2-103(3) (2017). Thus, the State was required to prove, at
the very least, that Raheem “was subjectively aware of but
consciously disregarded the risk” of Shannon’s nonconsent. [CITATION] (quotation
simplified). See [CITATION] (stating
that one is reckless when “one perceives a risk and consciously
disregards it”).
¶25 “Intent can be proven by circumstantial evidence.” [CITATION] (quotation simplified).
Indeed, “unless a confession is made by the defendant concerning
intent, or unless the court is somehow able to open the mind of
the defendant to examine his motivations, intent is of necessity
proven by circumstantial evidence.” Id. (quotation simplified).
And in determining intent, “the factfinder . . . is entitled to draw
all reasonable inferences from the facts and from the actions of the
defendant.” Id. (quotation simplified). See id. ¶ 106 (“The criminal
intent of a party may be inferred from circumstances such as
presence, companionship, and conduct before and after the
offense.”) (quotation simplified). “A jury’s inference is reasonable
unless it falls to a level of inconsistency or incredibility that no
reasonable jury could accept.” [CITATION] (quotation simplified). Thus, where the evidence
supporting an element of a crime is circumstantial, which will
almost always be the case for the mens rea element, “we must
determine . . . whether the inferences that can be drawn from that
evidence have a basis in logic and reasonable human experience
sufficient to prove each legal element of the offense beyond a
reasonable doubt.” [CITATION]
20200720-CA
UT App 29 State v. Raheem
391 (quotation simplified). “The issue is not whether some other
(innocent) inference might have been reasonable. It is simply
whether the inference adopted by the jury was sustainable.”
[CITATION]. An inference is
not sustainable if it “give[s] rise to only remote or speculative
possibilities of guilt.” [CITATION].
¶26 In denying Raheem’s motion to arrest judgment, the trial
court concluded that “there was sufficient evidence at trial for the
jury to find [Raheem] at the very least acted recklessly in raping
or sodomizing” Shannon. Pointing to Shannon’s testimony that
she was trying to exit the storage closet at the time Raheem
entered, the court stated that “[t]he jury could reasonably have
concluded [Raheem] locked the door, creating a circumstance
where he could prevent [Shannon] from leaving the room and
could overcome her through physical force.” The court also
pointed to Friend’s testimony that she heard Shannon call for help
sometime after Raheem entered the storage closet “and the door
was not opened for at least five minutes, creating a circumstance
where the jury could have believed [Shannon] did not consent
through words or conduct.” The court also stated that the jury
heard testimony from the examining nurse that Shannon told her
“she felt as though she blacked out during the assault,” which
“create[ed] a circumstance where the jury could reasonably
believe [Raheem] knew [Shannon] was unconscious or unaware
the acts were occurring.” Finally, the court stated that “it is
reasonable for the jury to conclude a person engaging in sexual
activity with another person in a small and cramped space would
not consent to a third person approaching her from behind,
removing her pants, and penetrating her anally with his penis,”
causing “severe” rectal injuries that “were consistent with
nonconsensual sexual acts.”
¶27 On appeal, Raheem argues that “[t]he evidence the district
court relied on in its analysis does not prove that [he] acted with
a criminal mindset about [Shannon’s] nonconsent.” He then raises
several challenges to the court’s analysis:
20200720-CA
UT App 29 [CITATION]
• He asserts that the act of locking the closet door “does not
support an inference that [he] was aware of and
consciously disregarded a risk that [Shannon] did not
consent” because “[i]t is common to lock a door when
engaging in consensual sexual activity” and because
Shannon did not testify that she took any action that should
have alerted [CITATION] to the fact that she was trying to exit
the storage closet.
• He takes issue with the court’s suggestion that the jury
could infer that he was reckless as to Shannon’s nonconsent
based on the type and location of sexual activity that
occurred because “[i]ndividuals engage in diverse
consensual sexual activity.”
• He challenges the court’s conclusion that the jury could
infer recklessness from Friend’s testimony that the door
was not opened for five minutes after Friend heard
Shannon call for help from the inside. He contends that,
even crediting Friend’s testimony, any such inference “is
unsupported speculation” because Shannon testified that
the men ceased the sexual intercourse when she started
crying and the fact “[t]hat it took five minutes for the three
to dress and emerge does not support an inference that [he]
continued sex.”
• He argues that the court’s focus on the injuries the
examining nurse documented during the sexual assault
examination was improper because those injuries went
toward consent rather than recklessness. And he asserts
that, in any event, the injuries did not establish nonconsent
because the nurse testified that they could have been
caused by consensual intercourse.
• He argues that the court’s reliance on the examining
nurse’s testimony that Shannon “stated she felt as though
she blacked out during the assault” was inappropriate
because “[w]ithout information about timing, evidence
[CITATION]
that [Shannon] ‘felt as though she blacked out’ at some
unspecified moment does not support an inference that
[he] was aware of and disregarded a risk that she did not
consent during the sexual activity.” He further argues that
the evidence did not support an inference that Shannon
visibly lost consciousness.
¶28 In addition to challenging the court’s reasons for denying
his motion to arrest judgment, [CITATION] contends that the State
presented insufficient evidence in other respects to prove that he
was at least reckless as to Shannon’s nonconsent. 9 He argues the
following points:
• Shannon told Salazar to stop kissing her on the neck and
that she “didn’t want to be in” the storage closet before
[CITATION] entered the closet, and the State presented no
evidence that [CITATION] heard this interaction from the
other side of the door.
• Although Shannon testified that she “was trying to get
out” when [CITATION] entered the closet, “she did not testify
that she did or said anything at that point” that would
have made him aware of that fact.
• After [CITATION] entered the closet, Shannon “did not testify
about any verbal or nonverbal cues that could have made
9. [CITATION]’s arguments are limited to addressing the first part of
the recklessness definition, i.e., whether he was “aware of but
consciously disregard[ed] a substantial and unjustifiable risk
that” Shannon did not consent. Utah Code Ann. § 76-2-103(3)
(LexisNexis 2017). He does not argue that the risk was not “of
such a nature and degree that its disregard constitute[d] a gross
deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from [his]
standpoint.” Id.
[CITATION] State v. Raheem
[him] aware that she did not consent” to the sexual activity
that was about to occur.
• Shannon “did not testify to any actions or reactions that
would have made [him] aware of a risk that she did not
consent” either when he bent her over and had vaginal sex
with her or when he had anal sex with her after they were
all on the ground. To the contrary, he points to the fact that
Shannon testified that both men ended the sexual
encounter when she started crying. “Thus,” he argues,
“when [Shannon] did exhibit a nonverbal cue that she did
not consent, the men heeded that cue and stopped.”
[SEGMENT 10]
¶29 But even taking all the above arguments at face value, the
jury nonetheless heard sufficient evidence from which it could
reasonably infer that Raheem acted recklessly as to Shannon’s
nonconsent. As an initial matter, Friend testified that Raheem was
also present in the hallway when she initially knocked on the
locked door and tried to enter the storage closet. After Friend’s
efforts proved unsuccessful, Raheem knocked, and the door was
opened for him. From this testimony, the jury could reasonably
infer that Raheem was aware that Friend was concerned about
what was transpiring in the storage closet. But Raheem did not
hold the door open for Friend to also enter. Instead, he “slid
through the door” and one of the men locked it behind him.
Shannon testified that as soon as Raheem entered the closet, he
pushed her against Salazar, bent her over, pulled down her pants,
and began having vaginal sex with her, all while Salazar also
inserted his penis into her mouth. This bears none of the usual
hallmarks of consensual sex. There was no evidence presented
that there had been a prior agreement between the three to have
sex in the closet—to the contrary, Shannon testified that before
Raheem entered the closet, she told Salazar that his sexual
advances were unwelcome and that she wanted to leave. Nor did
Raheem ask any questions to ascertain whether Shannon would
consent to sexual intercourse. And even in the absence of any
indication from Shannon that she did not consent to the sexual
activity, there was also no evidence presented that Shannon
[CITATION] State v. Raheem
suggested to Raheem in any way that she would consent to such
action, if taken. For example, Shannon did not voluntarily bend
over; instead, Raheem pushed her against Salazar and caused her
to bend over. And Raheem—not Shannon—was the one to
remove her pants in the absence of any indication that this would
meet with Shannon’s approval.
¶30 In sum, the State presented evidence that Raheem entered
the storage closet after observing a concerned Friend
unsuccessfully try to do the same. When the door was opened for
him, he “slid” inside and did not permit Friend to enter. Once in
the closet, both men began engaging in sexual activity with
Shannon—which was initiated without any indication from
Shannon suggesting that she was a willing participant. Based on
the evidence of these circumstances, coupled with “reasonable
human experience,” [CITATION], a jury could reasonably infer that
Raheem was, at the very least, “aware of but consciously
disregard[ed] a substantial and unjustifiable risk” that Shannon
did not consent when he pushed her against Salazar, removed her
pants, and began having sexual intercourse with her, Utah Code
Ann. § 76-2-103(3) (LexisNexis 2017).
¶31 For the foregoing reasons, we reject Salazar’s challenge to
his conviction on sufficiency of the evidence grounds.
II. Ineffective Assistance of Counsel
¶32 Raheem argues that Counsel was constitutionally
ineffective for failing to investigate and call Girlfriend to testify in
his defense. He makes two arguments related to this claim of
ineffective assistance. First, he argues the merits of the claim.
Second, he seeks reversal “in the interests of fairness” based on
our recent reversal of his co-defendant Salazar’s conviction on
ineffective assistance grounds. See [CITATION]. We
hold that Raheem is not entitled to reversal on either ground.
20200720-CA
UT App 29 State v. Raheem
A. The Merits
¶33 To prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show both that (1) “counsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” [CITATION]. Here, because we hold that Raheem has failed to establish
that counsel performed deficiently, we need not also address
prejudice. See [CITATION] (“A defendant’s inability to establish either element defeats a
claim for ineffective assistance of counsel[.]”) (quotation
simplified), cert. denied, [CITATION].
¶34 To satisfy the deficient performance element, the
defendant must overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance,” [CITATION], and show that defense
counsel’s actions “fell below an objective standard of
reasonableness,” [CITATION]. Under this standard, it is insufficient
to merely show that counsel erred. See [CITATION]. Rather, “the ultimate question is always
whether, considering all the circumstances, counsel’s acts or
omissions were objectively unreasonable.” [CITATION].
¶35 “An attorney has a duty to conduct a reasonable
investigation into the facts of his client’s case and to make
reasonable decisions regarding the proper scope of that
investigation.” [CITATION]. “If
counsel does not adequately investigate the underlying facts of a
case, including the availability of prospective defense witnesses,
counsel’s performance cannot fall within the wide range of
reasonable professional assistance.” [CITATION] (quotation simplified). Defense counsel’s
“decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.” [CITATION]. “In evaluating the reasonableness of counsel’s
20200720-CA
UT App 29 State v. Raheem
investigation, we consider not only the quantum of evidence
already known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further.” [CITATION],
2014 UT 19, ¶ 37 (quotation simplified). To that end, “inquiry into
counsel’s conversations with the defendant may be critical to a
proper assessment of counsel’s investigation decisions.”
[CITATION], 466 U.S. at 691. See id. (“Counsel’s actions are usually
based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In
particular, what investigation decisions are reasonable depends
critically on such information.”).
¶36 Raheem first raised his claim that Counsel was ineffective
for not investigating or calling Girlfriend to testify in his motion
for a new trial. The motion was accompanied by affidavits from
himself and Girlfriend.
¶37 In her affidavit, Girlfriend averred that she dated Raheem
“on and off” from 2012 to 2013 and that she “spent a lot of time
helping [Raheem] run” the hookah lounge as well as a different
lounge he later ran. She stated that on the night of the assault,
Shannon came up to her and told her that she had given Raheem
“head,” which Girlfriend understood to mean that Shannon “had
performed oral sex on” Raheem. Girlfriend further averred that
Shannon “did not seem upset,” nor did she tell Girlfriend that
Raheem “forced her to perform any sex act.” Girlfriend stated
that, to the contrary, Shannon’s “tone of voice and expression
seemed bragging” as if she intended to make Girlfriend jealous.
Girlfriend later confronted Raheem about Shannon’s claim,
resulting in an argument.
¶38 Girlfriend stated that after that night, Shannon continued
to frequent the hookah lounge and “act friendly with” Raheem.
Girlfriend stated that on another night, she observed on the
security cameras Raheem and Shannon have a conversation and
hug. Girlfriend said she confronted Raheem about the hug and
another argument ensued. Girlfriend stated that Counsel never
contacted her but that if he had called her to testify at trial, she
20200720-CA
UT App 29 [CITATION]
would have testified as recounted above. She stated that when she
heard that [CITATION] “went to jail,” she contacted his brother, who
put her in touch with [CITATION]’s appellate counsel.
¶39 In his affidavit, [CITATION] averred that he told Counsel that
following the night in question, Shannon not only continued to
visit the hookah lounge, as well as the other lounge he later ran,
but that she also “continued to be friendly and flirtatious with”
him and “apologized . . . multiple times for ‘the drama’ and asked
if [they] could still be friends.” At the end of one of these
conversations, the two hugged. He also stated that shortly after
the episode giving rise to the charge in this case, Girlfriend
confronted him, saying that Shannon told her that Shannon “had
given [him] head.” [CITATION] stated that Counsel did not ask
whether anyone could corroborate these assertions, and he
claimed that if Counsel had asked, “I would have told him that”
Girlfriend “could confirm these things.” 10
¶40 Counsel’s investigation did, however, uncover pictures
taken in 2013—a few months after the sexual assault—of Shannon
at the hookah lounge with friends and a video taken at the 2016
party at which Shannon was within eight feet of [CITATION]. Counsel
intended to introduce the pictures and stills from the video at trial.
The State objected to the admission of the proposed exhibits
“based on relevancy, and also being more prejudicial than
probative.” Counsel responded that he would not use the stills if
Shannon acknowledged that she was at the 2016 party and that
she felt sufficiently comfortable to come within eight feet of
[CITATION]. But he did intend to introduce the stills if Shannon
denied being at the party or testified that she was “off in a corner
scared.” He also intended to introduce the 2013 pictures if
Shannon denied returning to the hookah lounge with friends and
having “a good time.” The court sustained the State’s objection
“for now,” stating, “We’ll see how she testifies.” This issue was
[SEGMENT 11]
10. [CITATION] does not explain why he did not just volunteer this
information considering how important he apparently thought it
was.
20200720-CA
UT App 29 State v. Raheem
not revisited later at trial because Shannon did, in fact,
acknowledge visiting the hookah lounge with friends in 2013 and
approaching within eight feet of Raheem at the 2016 party.
¶41 Raheem argues that Counsel’s investigation was deficient
because he did not follow up when Raheem told him of Shannon’s
behavior toward him after the night of the assault. Raheem asserts
that if Counsel had done so, he “would have discovered that there
was in fact a witness who could corroborate [his] story that
Shannon had bragged about her sexual encounter with [him] to a
third party.” He argues that if Counsel had “investigated and
presented [Girlfriend’s] testimony, he would have been able to
further cast doubt on [Shannon’s] credibility and refute
statements she made about her post-incident conduct.”
¶42 We first emphasize the scope of our inquiry. Without
question, the best practice would have been for Counsel to follow
up by asking whether anyone could corroborate Raheem’s
assertions. But, as stated above, under a claim of ineffective
assistance of counsel, “the ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” [CITATION]. See [CITATION]
(stating that the deficient performance element “requires showing
that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment”); [CITATION] (“Even
if an omission is inadvertent and not due to a purposeful strategy,
relief is not automatic.”) (quotation simplified). Under this
standard, we hold that Counsel’s omission was not objectively
unreasonable under the circumstances of this case.
¶43 As discussed above, Counsel’s investigation into
Shannon’s post-assault behavior produced photographic
evidence both that Shannon returned to the hookah lounge a
few months after the assault and that she felt comfortable
enough to approach within eight feet of Raheem at a party
some years later. Although Shannon acknowledged at trial
20200720-CA
UT App 29 State v. Raheem
that she did these things, thus obviating the need for Counsel to
seek admission of the photographic evidence, Counsel
nonetheless argued during closing argument that this
post-assault conduct conflicted with her claim that she had
been sexually assaulted that night. Additionally, Counsel
called Raheem’s brother and friend to counter Shannon’s
testimony, as well as that of other State witnesses, regarding her
behavior at the hookah lounge immediately after she exited the
storage closet.
¶44 Having uncovered the photographic evidence and the
two defense witnesses, coupled with Raheem’s silence during the
conversation as to Girlfriend’s ability to corroborate his account of
his post-assault interactions with Shannon, it was not
unreasonable for Counsel to believe that he had
sufficiently investigated Shannon’s post-assault conduct. Indeed,
Counsel’s investigation was sufficient to prompt Raheem to
discuss Shannon’s continued “friendly and flirtatious” behavior,
as well as the hug after a conversation in which Shannon
apologized for “the drama.” And the follow-up question that
Raheem faults Counsel for not asking only sought additional
information that a person could reasonably be expected to
volunteer without further prompting. Thus, after Raheem
divulged the information to which Girlfriend would have
testified, it was not unreasonable for Counsel to presume that
Raheem would also mention that a witness to such events existed,
if one did. 11
¶45 For these reasons, under the circumstances of this case, we
cannot say that Counsel’s failure to ask the follow-up question
11. Although we cannot be sure on this record whether Raheem
was the one to direct Counsel’s attention to his brother and friend
as witnesses to Shannon’s conduct immediately after exiting the
storage closet, we note that if he was, it would be yet another
reason that Counsel’s not asking a follow-up question regarding
Shannon’s alleged later conduct was not unreasonable.
[CITATION] State v. Raheem
about other potential witnesses was objectively unreasonable.
Raheem’s claim of ineffective assistance therefore fails. 12
B. Interests of Fairness
¶46 Alternatively, Raheem argues that in light of our recent
reversal of co-defendant Salazar’s conviction on ineffective
assistance grounds, see [CITATION], we should
likewise reverse his conviction and grant him a new trial “in the
interests of fairness.” 13 But because Raheem does not ground this
claim on any constitutional provision, statute, rule, or caselaw, we
have no basis for reversal and this argument necessarily fails.
¶47 In the other appeal, Salazar argued, in relevant part, that
his trial counsel was ineffective for failing to introduce at trial
certain Voxer 14 messages Shannon sent Salazar following the
12. Because we reject Raheem’s claim that Counsel was ineffective
for failing to further investigate, we need not address his
argument that Counsel was also ineffective for failing to call
Girlfriend to testify at trial. Because Counsel was unaware of
Girlfriend’s existence at the time of trial, he could not have been
expected to call her to testify.
13. Because we reversed Salazar’s conviction after Raheem
submitted his principal brief, Raheem first raised this issue in his
reply brief, and we subsequently authorized surreply briefing on
this question.
14. “Voxer is an app that allows users to exchange voice, text,
photo, and video messages. Its primary service is to deliver voice
live—so it can be listened to immediately while also
simultaneously recording the message—so it can be listened to
later.” [CITATION]
20200720-CA
UT App 29 State v. Raheem
assault. 15 See [CITATION]. At the preliminary hearing, apart
from “a few messages” she received “from Salazar in the days
immediately after the incident,” Shannon “testified that she did
not ‘hang out with him after the assault’ and ‘never had any direct
contact with Mr. Salazar.’” [CITATION] (quotation simplified). At trial,
Shannon “stated that she did not recall having contact or
socializing with Salazar after the incident but that she ‘was told
that I reported something before to the cops, but I don’t
remember.’” [CITATION]. She also stated that “it was ‘correct’ that ‘at
the preliminary hearing under oath she said that she would never
have had contact with Salazar after the fact.’” [CITATION] (quotation
simplified). Salazar’s trial counsel did not present the Voxer
messages at trial to undermine Shannon’s credibility.
¶48 Salazar argued that his trial counsel was ineffective
because the Voxer “messages would have showed that Shannon
lied when she repeatedly and unequivocally testified at the
preliminary hearing that she never again contacted Salazar.” [CITATION]
.
15. Salazar also argued that his trial counsel was ineffective for
failing to investigate the Voxer messages. See [CITATION]. We
declined to address this issue, stating that even if the State was
correct that we should presume that Salazar’s counsel
investigated the Voxer messages, “it does not change our
conclusion that [Salazar’s counsel] was ineffective for not using
them at trial.” [CITATION]. We also noted that based on the trial court’s
statement that evidence existed that Salazar’s counsel possessed
the messages at the time of trial but elected not to use them, “we
do not conclude that [Salazar’s counsel] failed to investigate the
existence of the messages, because he actually had the messages,
even though it is suggested by Salazar that [his counsel] did not
have the technical expertise to access and review them.” [CITATION]. Our
analysis thus focused on counsel’s decision not to use the
messages at trial. See [CITATION].
Here, conversely, Girlfriend’s affidavit stated that when she
did come forward, Raheem’s brother put her in contact with
appellate counsel—thus indicating that Raheem had already been
convicted at that point.
20200720-CA
UT App 29 State v. Raheem
¶ 35 (quotation simplified). We held that [CITATION]’s trial counsel
performed deficiently in not using the messages at trial because
“with Shannon as the State’s lead and most critical witness, any
reasonable counsel would have presented the Voxer messages to
undermine her credibility.” [CITATION]. See [CITATION] (stating that it was
“unreasonable for [CITATION]’s counsel not to use the Voxer
messages to undercut Shannon’s already problematic
credibility”). We further held that [CITATION] was prejudiced, stating
that based on “Shannon’s problematic testimony and the lack of
necessarily inculpatory physical evidence, the Voxer messages
would have affected the overall evidentiary picture, and the jury
may well have found Shannon less credible.” [CITATION] (quotation
simplified). See infra note 19. Accordingly, we reversed [CITATION]’s
conviction for aggravated sexual assault on ineffective assistance
of counsel grounds and remanded his case for a new trial. See
[CITATION].
[SEGMENT 12]
¶49 Raheem argues, “[T]his Court should recognize that any
change in [CITATION]’s trial would have resulted in a different
outcome for [him]. The two men were charged with the same
crime and had a single trial. If [CITATION] did not receive a fair
trial, [Raheem] was also impacted by that lack.” 16 But Raheem’s
argument in briefing is limited to citing a handful of Utah cases
referencing “principles of fairness” in other contexts that provide
no basis for reversal in this case.
¶50 During oral argument, Raheem pointed to our Supreme
Court’s recent decision in [CITATION], in
16. Raheem primarily argued that reversal was warranted under
the law of the case doctrine, contending that “[t]his Court’s
reasoning in [CITATION] explicitly demonstrates that [Counsel] acted
deficiently when he failed to introduce evidence which undercut
Shannon’s credibility and that [he] was prejudiced by [Counsel’s]
deficiencies.” But Raheem conceded during oral argument that
because “different evidence [is] involved” here than was at issue
in that appeal, [CITATION] has more of a persuasive effect on the
current case “than strict law of the case.”
20200720-CA
UT App 29 State v. Raheem
which the Court held, as a matter of first impression, that a mother
whose parental rights were terminated could participate in a
remand the father had secured on appeal. See id. ¶ 34. In that case,
each parent raised separate claims of error in the joint appeal, see
id. ¶ 8, but only the father’s claims of error proved successful, see
id. ¶ 27. Although the mother had not made the same winning
arguments, see id. ¶ 29, the Court held that “[t]he rights and
interests of the parents and the children are not only substantial
but intertwined” in the parental termination proceeding, and the
juvenile court’s missteps that the father had identified on appeal
“may bear significant consequences not just for the parents but for
their children,” id. ¶ 33. Accordingly, the Court held “that the
mother’s briefing decisions should not foreclose her from
participating in the case on remand” and that “[b]oth parents’
legal rights should be on the table.” Id. ¶ 34.
¶51 [CITATION]’s narrow holding is inapplicable to the current
case. As the Court’s analysis makes clear, the unique context of
parental rights termination in which the primary focus is the best
interest of the child played a crucial role in that case. Here, no such
third-party interest is at stake. Additionally, it was not the error
of the court that warranted reversal in [CITATION] but the ineffective
assistance of [CITATION]’s trial counsel—and not Raheem’s. 17 For
17. To be sure, if the trial court, the State, or some other actor had
made an error affecting the rights of both co-defendants and
resulting in an unfair trial, Raheem may potentially have been
entitled to raise that claim of error in his own appeal. In such a
situation, the law of the case doctrine may well apply to ensure
the same result in both appeals. See [CITATION], 969 P.2d 1053,
1054 (Utah Ct. App. 1998) (holding that because the appellant’s
co-defendant received reversal on the “identical facts and legal
question” the appellant raised, the law of the case doctrine
applied, likewise entitling the appellant to a reversal). But here, as
Raheem acknowledged during oral argument, see supra note 16,
although there are some similarities, the underlying facts and
claim of ineffective assistance he raises are distinct from the facts
and claim of ineffective assistance that merited reversal in [CITATION].
20200720-CA
UT App 29 State v. Raheem
these reasons, [CITATION] does not mandate reversal of Raheem’s
conviction.
¶52 In sum, because Raheem’s fairness argument has no basis
in law, it necessarily fails. The reversal of [CITATION]’s conviction in a
prior appeal has no binding effect on Raheem’s case.
III. Improper Statements and Hearsay
¶53 Raheem argues that the trial court erred in denying his
motion for a new trial in which he claimed that improper
statements by the prosecutors and inadmissible hearsay
statements by the State’s witnesses deprived him of a fair trial. We
first recount each of the challenged statements and then proceed
to address the merits of Raheem’s argument.
A. Additional Facts
¶54 First, during jury selection, the two prosecutors in the case
introduced themselves to the potential jurors as members of a
“special victims team” and a “special victims unit.” Shortly
afterwards, during a sidebar conversation, the defense objected to
the prosecutors’ use of the word “victim” and asked the trial court
to either “[c]raft some sort of limiting instruction, or grant . . . a
mistrial.” The court told the jury that the prosecutors’ “use of the
word victim is not proper” because “[i]t is inconsistent with the
presumption of innocence” and instructed the jury “not to
consider the use of that word.”
¶55 Second, during opening statements, one of the prosecutors
told the jury that Raheem ran the hookah lounge “and it had
teenage girls, 18-years-old, who would work there without pay,
but would receive hookah or tobacco instead of being paid.” The
defense objected to this statement, arguing that the defense had
no prior notice of this “other acts” evidence. See [CITATION]. The trial court then instructed the jury “to disregard
references to any sort of issue about whether there were
individuals smoking underage in this establishment, or whether
20200720-CA
UT App 29 State v. Raheem
there were any sort of labor violations with respect to individuals
working in this establishment without pay.”
¶56 Third, at the beginning of Coworker’s testimony, the State
asked, “What’s your understanding of why you’re here to
testify?” Coworker responded, “I’m here to testify as a witness
against two individuals that had raped [Shannon].” The defense
objected and moved for a mistrial, arguing the comment
impermissibly bolstered Shannon’s credibility and was
prejudicial. The court asked whether Coworker’s expected
testimony regarding Shannon’s excited utterances after she exited
the storage closet would mitigate the prejudice. See [CITATION] R. 803(2)
(exempting from the rule against hearsay “[a] statement relating
to a startling event or condition, made while the declarant was
under the stress of excitement that it caused”). The defense
recognized that the testimony may “correct the mistake” but
argued that the cumulative effect of the comment and the
prosecutors’ prior statements that they were members of a
“special victims team” warranted a mistrial. The court took the
motion for mistrial under advisement, but in the interim, it
instructed the jury to disregard the comment because “the
question of whether or not rape occurred in this case is the
ultimate issue in the case that you have to decide as the jury” and
Coworker’s “comment on it is not proper for you to consider.”
The court then asked whether the members of the jury understood
the instruction and whether they believed they could follow it.
The jurors indicated in the affirmative. The court then asked any
jurors who “doubt[] their ability to follow that instruction and
disregard” Coworker’s opinion on the matter to raise a hand.
None of the jurors raised their hand.
¶57 Fourth, the detective who convinced Shannon to go to the
hospital testified that he had been dispatched “for a possible
rape.” The defense lodged an objection, which the court sustained
and instructed the jury to disregard the statement “for the same
reason that I gave you the instruction before.” Namely, “[i]t’s the
ultimate issue in the case about whether or not a rape occurred.
That’s for you to decide, not for this witness or any other specific
20200720-CA
UT App 29 State v. Raheem
witness to say.” The court again asked the jurors whether they
could “all follow that instruction to disregard [the detective’s]
answer.” All the jurors again indicated in the affirmative. A little
later, the detective testified that when he arrived at the hospital,
the examining nurse and a “victims advocate” were already there.
The defense did not object to the use of the word “victim” at this
time.
¶58 Fifth, during cross-examination of Raheem’s friend, in the
context of asking about who had subpoenaed him, the State
asked, “But who [are] you testifying for?” The defense objected.
The court sustained the objection and told the jury, “The witness
was subpoenaed to testify. He’s not testifying for anyone or
against anyone. He’s just providing his testimony. Does
everybody understand that?” The jurors again responded in the
affirmative.
[SEGMENT 13]
¶59 During a recess, the court heard further argument on the
mistrial motion. 18 By that point, both Coworker and Friend had
testified as to Shannon’s excited utterance when she exited the
storage closet that she had just been raped. See [CITATION]. The
defense nonetheless argued that Coworker’s comment and the
testimony about Shannon’s excited utterances “are two different
things” because “[i]n the one case she’s offering it and asserting it
as a fact, in the other she’s talking about things . . . that were told
to her.” The defense also argued that the detective’s mention of a
“victims advocate,” the State’s use of the word “victim” during
introductions, and Coworker’s “rape” comment all “cumulatively
add[] up to a mistrial.”
¶60 In response, the State asserted that “no one has called
[Shannon] a victim,” rather the prosecutors’ and the detective’s
use of the word “victim” was in reference to job titles and
descriptions. Indeed, the State pointed out that even Counsel at
18. At this point, because Raheem’s friend had not yet been called
to the stand, the objected-to interaction in which the State asked
him who he was testifying for was not discussed.
20200720-CA
UT App 29 State v. Raheem
one point referenced a “victim advocate” during a
cross-examination. Concerning Coworker’s statement, the State
argued that it was not solicited and that any potential prejudice
was “cured” by admissible testimony of Shannon’s excited
utterance when she exited the storage closet that she had just been
raped and by the court’s curative instruction. Additionally, the
State argued that the detective did not indicate that a rape had
occurred because he said “possible rape.”
¶61 The trial court denied the motion for mistrial, largely
agreeing with the State’s arguments. The court stated that it held
off on ruling on the motion when first lodged at the onset of
Coworker’s testimony because it wanted “to see how the
testimony unfolded.” The court acknowledged that the State’s
question that prompted Coworker’s objectionable comment “was
probably not the best question for the prosecution to ask of a lay
witness” and that the comment was “potentially inflammatory.”
But the court pointed out that the jury heard admissible evidence
of Shannon’s excited utterance that she had been raped.
Additionally, the jury received a curative instruction, and the
court “carefully observed the jurors” while giving the instruction
and was convinced that they understood the instruction. It
therefore held that any prejudice from Coworker’s comment was
mitigated. The court further held that the detective’s reference to
a “potential rape” was not prejudicial because it was no secret that
the case was “about an alleged rape.” And, in any event, the court
stated that it “gave careful curative instructions that” it
“believe[d] the jury understood.”
¶62 Concerning the use of the word “victim,” the court first
noted that although the State was correct that no one had called
Shannon a victim and that the term was used in the context of
discussing job titles, this was nonetheless “problematic when
they’re injected into a proceeding.” See [CITATION] (“[U]se of the term ‘victim’ usually will
be inappropriate when the defendant defends the case on grounds
that no crime was committed and, concomitantly, that there is no
victim in the case at all.”). Cf. [CITATION]
20200720-CA
UT App 29 State v. Raheem
449 P.3d 39 (“We . . . recognize the gravity of referring to witnesses
as victims during a trial.”). But the court held that in light of the
curative instruction it gave during jury selection, which it
believed the jury understood, the use of the word “victim” was
not prejudicial. See [CITATION] (stating that
curative instructions are “a tool that can sometimes, depending
upon the context in which the statements were made, mitigate any
prejudice caused by the use of the term ‘victim’”) (quotation
simplified). And although the defense did not object immediately
after the detective referenced a “victims advocate,” the court
stated it believed that the jury understood the prior curative
instruction likewise applied to that statement.
¶63 Raheem renewed this argument in his motion for a new
trial, in which, in addition to the improper statements he raised in
his motion for mistrial, he argued that a new trial was warranted
due to the State’s discussion of “other acts” evidence during
opening statements and due to the State’s improper question to
Raheem’s friend during cross-examination. The court denied the
motion. Concerning the prosecutors’ reference to a “special
victims team” and a “special victims unit” during jury selection
and to other acts evidence during opening statements, the court
explained, “The court gave curative jury instructions for each of
these statements, and [it] found the jury was sophisticated,
understood the court’s instructions, and indicated a willingness
to abide by the instructions. Therefore, any error was cured at
trial.” Similarly, regarding the State’s improper question to
Raheem’s friend, the court stated that it “gave a curative
instruction with regard to the State’s implication [the friend] was
testifying for a particular party, and any error with regard to him
was rectified” and “was not prejudicial.” Lastly, the court stated
that “with regard to references to ‘victim’ and ‘rape,’ throughout
the trial, there were very few and the court gave curative
instructions to the jury instructing it to disregard the references.
The jury understood the instructions and agreed to disregard the
statements.”
20200720-CA
UT App 29 State v. Raheem
B. The Merits
¶64 Raheem argues that “the cumulative effect of the improper
testimony should undermine the court’s confidence in the
outcome” because “the curative instructions were not adequate to
mitigate the cumulative prejudice of the many errors.”
Referencing Shannon’s “credibility issues,” 19 he asserts that “the
jury was left with much it was instructed to disregard and little it
could legitimately rely on to convict.” He also contends that “the
inadmissible evidence served to unjustifiably bolster the State’s
case and credibility of [Shannon’s] accusation.”
¶65 “Because of the advantaged position of the trial judge to
determine the impact of events occurring in the courtroom on the
total proceedings, an appellate court will find an abuse of
discretion only when the trial court is plainly wrong in that the
incident so likely influenced the jury that the defendant cannot be
said to have had a fair trial.” [CITATION] Here, we cannot say that the
trial court abused its discretion in denying the motion for a new
trial.
¶66 As Raheem points out, in holding that the errors were not
prejudicial, the court relied heavily on the curative instructions it
issued following each objection to the improper statements. “We
normally presume that a jury will follow an instruction to
disregard inadmissible evidence inadvertently presented to it,
unless there is an overwhelming probability that the jury will be
19. In [CITATION], cert. denied,
[CITATION], we held that “the State’s prospects for
a conviction primarily rested on [Shannon’s] testimony,” id. ¶ 58,
and that her credibility was “problematic” due to “her inability to
remember most of the specifics of the assault without the
prosecutor’s direction and her changing story about the soda,” id.
¶ 45. See id. ¶ 44 (detailing Shannon’s memory issues and
inconsistent accounts regarding the allegedly spiked soda she
said she consumed).
20200720-CA
UT App 29 State v. Raheem
unable to follow the court’s instructions, and a strong likelihood
that the effect of the evidence would be devastating to the
defendant.” [CITATION] (quotation simplified). See [CITATION] (“Curative instructions are ordinarily presumed on
appeal to be effective, absent a substantial and prejudicial
underlying error or irregularity.”) (quotation simplified), cert.
denied, [CITATION]. But see [CITATION] (“This is not to say that curative instructions are a ‘cure-all.’ Some
errors may be too prejudicial for curative instructions to mitigate
their effect, and a new trial may be the only proper remedy.”).
¶67 With the exception of the detective’s single mention of the
“victims advocate,” the court “gave a forceful curative instruction
at the time [each] error occurred.” See [CITATION]. The
court not only gave the instruction, it explained why the
instruction was being given and asked the jurors to indicate
whether they understood the instruction and were able to abide
by it. Concerning the “victims advocate” reference, the jury had
already received the relevant curative instruction only a few
minutes earlier when the same detective stated “potential rape,”
as well as when the State referenced a “special victims team”
during jury selection. There was also “nothing to indicate that the
jury was unable to follow the court’s instruction to disregard the
inadmissible evidence that had been inadvertently presented to
it.” See id. To the contrary, the court “found the jury was
sophisticated, understood the court’s instructions, and indicated
a willingness to abide by the instructions.” See [CITATION] (acknowledging “the advantaged position of the trial
judge to determine the impact of events occurring in the
courtroom on the total proceedings”) (quotation simplified).
[SEGMENT 14]
¶68 Furthermore, we are not convinced that the cumulative
effect of the improper statements was so “substantial and
prejudicial” as to undermine the effectiveness of the curative
instructions. [CITATION] (quotation simplified).
As the trial court noted, the potential prejudice of most of the
statements was significantly decreased by other factors. Most
20200720-CA
UT App 29 State v. Raheem
notably, the prejudice of Coworker’s improper statement was
significantly decreased when she and two other witnesses
provided admissible testimony regarding Shannon’s allegations
of rape immediately after she exited the storage closet.
Additionally, the prejudicial impact of the detective’s reference to
a “potential rape” is questionable, given the use of the qualifying
word “potential” and the jury’s general understanding that it was
tasked with determining whether Raheem and Salazar sexually
assaulted Shannon in the storage closet. Such an understanding
likewise minimized the prejudicial impact of the State’s and the
detective’s references to “victim,” as they never directly called
Shannon a “victim” but rather were using the word when
providing titles and descriptions of their jobs.
¶69 Additionally, the State’s improper comment during
opening statement about the potential underage smoking and
labor violations at the hookah lounge was rather mild in
comparison to the graphic allegations the jury later heard. See
[CITATION] (stating that
the victim’s improper statement that the “defendant was shot
might have stood out more prominently in other trials” but “in
the current case the highly graphic and disturbing nature of the
evidence presented to the jury over the course of six days . . .
overshadowed” the improper statement), cert. denied, [CITATION]. Thus, even considered cumulatively and in light
of issues with Shannon’s credibility, we cannot say that the
prejudicial effect of the errors was so great as to rebut the
presumption that the jury followed the trial court’s curative
instructions.
¶70 For these reasons, the trial court did not abuse its discretion
when it denied the motion for a new trial.
CONCLUSION
¶71 The State presented sufficient evidence at trial to prove that
Raheem acted, at the very least, recklessly as to Shannon’s
20200720-CA
UT App 29 State v. Raheem
nonconsent. Under the circumstances of this case, Counsel was
not ineffective for not asking a follow-up question regarding
whether anyone could corroborate Raheem’s account of
Shannon’s post-assault behavior toward him. Lastly, the trial
court did not abuse its discretion when it denied the motion for a
new trial. 20
¶72 Affirmed.
20. Raheem also argues that the cumulative effect of the three
errors he raises on appeal was prejudicial. “A reviewing court will
reverse a jury verdict under the cumulative error doctrine only if
the cumulative effect of the several errors undermines confidence
that a fair trial was had.” [CITATION] (quotation simplified). Because there are no errors to
accumulate here, this argument necessarily fails. See [CITATION] (stating that
the cumulative error “doctrine will not be applied when claims
are found on appeal to not constitute error, or the errors are found
to be so minor as to result in no harm”) (quotation simplified);
[CITATION] (“Because
we conclude that there are no errors to accumulate here, the
cumulative error doctrine is inapplicable in this case.”) (quotation
simplified).
20200720-CA
UT App 29
2024 UT App 16
THE UTAH COURT OF APPEALS
JOSEPH EARL LAMB,
Appellee,
v.
SONYA ELIZABETH LAMB,
Appellant.
Opinion
No. 20210787-CA
Filed February 8, 2024
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 174904728
Mary Deiss Brown, Attorney for Appellant
Gregory G. Skordas, Gabriela Mena, and Allison R.
Librett, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.
MORTENSEN, Judge:
¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was
decided at a bench trial. [CITATION] As relevant here, Joseph was awarded
custody of their children, ownership of a family business, and half
the equity of the marital home. Sonya now challenges the court’s
custody determination and the award of the business. She also
challenges the manner in which the court determined the equity
in the marital home. We affirm the district court’s rulings in all
aspects.
[CITATION] Because the parties share a surname, we refer to them by their
given names. [CITATION]
BACKGROUND 2
¶2 Joseph and Sonya married in 2007 and separated in July
2017. We address separately each of the district court’s
determinations with which Sonya takes issue.
The Custody of the Children
¶3 Joseph and Sonya have three children, all of whom
were minors when they divorced in August 2021. In
November 2017, at a hearing for temporary orders, Sonya’s
counsel told the court that Sonya had been the children’s primary
caregiver “until recently.” Sonya also admitted that she was
arrested in July 2017 and was facing charges for possession and
use of drugs, but she asserted that she had “taken responsibility,”
had “stopped using drugs,” was “sober and more than capable of
caring for the children and continuing on as their primary
caregiver,” and had “been attending Narcotics Anonymous and
Al-Anon meetings.” Sonya asserted that Joseph had a “serious
drug addiction problem.” Joseph claimed that Sonya had
vacated the marital home shortly before her arrest, and he
revealed that he obtained a protective order against her. The court
acknowledged the allegations both sides made against the
other but noted that Joseph currently had the children in his care
and was living in the marital home. The court then determined
that Joseph should maintain “custody of the children on a
temporary basis.”
2. As addressed below, neither party’s briefs included sufficient
citations to the record. This shortcoming has necessitated us
combing the record to establish some semblance of a background,
something we are not obligated to do. See [CITATION] (explaining the parties’ duty to cite
the record in appellate briefs), cert. denied, [CITATION]. Accordingly, our recitation of the facts is necessarily
minimal as we limit it to what is essential to resolve the issues on
appeal.
20210787-CA
UT App 16 [CITATION]
¶4 Apparently, the children remained in the temporary
custody of Joseph until the parties’ divorce trial, where the court
received the testimony of a “reunification therapist” (Family
Therapist), who had been hired by the parties after the custody
evaluator had been “unable to perform an evaluation due to the
children spending less than minimum time” with Sonya.
¶5 Based on the testimony of Family Therapist, which we
recount when relevant in our analysis below, the court found that
“unification” between Sonya and the two older children was
“lacking” because of acrimonious relationships. The court noted
that Family Therapist had testified that progress in reunification
therapy would “influence what possible custody” Sonya might
have in the future relative to the older children. The court
determined that it was “in the best interest of the children that
reunification therapy” continue to allow Sonya the opportunity
“to reunify her relationship with the children.”
¶6 Accordingly, the court found that it was in the children’s
best interest that Joseph be “awarded sole physical custody and
final decision making authority,” with both parties being
awarded joint legal custody. With regard to the youngest child,
the court awarded supervised parent-time to Sonya one night a
week. The court awarded Sonya no parent-time with the older
two children. The court noted that supervised parent-time for
Sonya would “be flexible” and might “increase after the current
reunification issues” and Sonya’s “medical issues” were
addressed. The court also stated that Sonya’s “non-use of
cannabis” needed to be verified because marijuana use was “a
contributing factor” that brought on her mental health episodes.
The Business
¶7 During their union, the parties were financially supported,
at least in part, by a business that distributed supplies to gas
stations. During the divorce proceedings, Joseph maintained that
he was in the process of purchasing the business from his father
but that he did not have the money to pay for it. Joseph explained
[CITATION] Lamb v. [CITATION]
that he drew a salary for his work with the business. In contrast,
Sonya maintained that she and Joseph agreed to buy the business
in 2010 and that they completed paying off the business in 2016.
Sonya claimed that she and Joseph signed a document “to take
over the business” but that she did “not have the document.”
Sonya did produce a different document that explicitly stated the
business was being sold only to Joseph.
[SEGMENT 15]
¶8 The district court awarded the business to Joseph, along
with all its debts and obligations. In addition, the court,
apparently recognizing that the business was possibly still owned
by Joseph’s father, ordered that any money Joseph borrowed
against the marital home to purchase the business would “not be
used to reduce the total equity in the home” so as to reduce
Sonya’s share of the home’s value. In making this award to
Joseph, the court was clear that it was basing its decision “on the
testimony” provided by Joseph.
The Marital Home
¶9 Based on a Zillow estimate 3 provided by Sonya, the court
determined the value of the marital home to be $998,659, but the
equity in the home was reduced by mortgages and liens on the
property. Joseph testified that three mortgages, totaling $402,000,
3. Neither party produced an appraisal of the home or an
appraisal witness at trial, leading the court to ask the parties,
“Does anybody have any valuation [of the home] at all?” Sonya’s
counsel answered, “Well, we could do it [with] Zillow.” At this
point, while in court, Sonya’s counsel looked up the value and
reported, “According to Zillow as of today, the estimated value is
$998,659.” No objection was lodged at trial to the court receiving
this information. “Zillow is a commercial website that provides,
among other things, an estimated market value for many
residential properties.” [CITATION]
20210787-CA
UT App 16 [CITATION]
were on the property. 4 And the home was additionally
encumbered by eleven liens. Two of these liens, totaling $2,414,
were attributed to Sonya and Joseph. The remaining nine, totaling
$256,521, were tax liens and civil judgments incurred by the
previous owner of the home. 5
¶10 The court received evidence that when Joseph and Sonya
purchased the home in November 2009, it was subject to some
existing debt. Joseph testified as follows:
Counsel: “Was there anything particular about that
purchase [of the home]?”
Joseph: “We didn’t have the credit or the means to get into
a home at the time, so my brother is a real estate agent
and he’s good friends with [the previous owner] and
said, ‘Hey, this house is available. If you like it, I can
probably get you into it.’ And so we took him up on
that and (inaudible) that we had to take on (inaudible).”
Counsel: “So there were other debts on that house when
you purchased it?”
Joseph: “Yes. . . . . I didn’t know about all of them at the time,
but yes.”
Counsel: “What are those debts?”
4. This number reflected the amount owing at the time of
separation. At the bench trial, Joseph testified that the amount was
currently about $298,000.
5. Joseph’s counsel provided a LexisNexis report as evidence of
the liens on the home. This report was admitted as evidence with
no objection.
20210787-CA
UT App 16 [CITATION]
Joseph: “There’s a lot of tax liens from [the previous owner]
throughout the years. There’s a couple of (inaudible)
from Sonya and I, medical bills that weren’t paid. . . .”
Counsel: “And have you paid off the tax liens? The liens on
the house?”
Joseph: “No.”
Thus, in a somewhat unusual arrangement, the parties appear to
have purchased the home subject to certain liabilities, even if they
did not know the precise extent of those liabilities. Presumably,
these liabilities would have been offset by a reduction in the
purchase price, making the home more affordable.
¶11 Adding the mortgages and liens together for an amount of
$660,935, the court determined that equity in the home was
$337,724. The court ordered Joseph to pay Sonya $168,862 as her
share of that equity.
¶12 Sonya appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 Sonya identifies multiple ways in which she believes the
district court erred. But “[f]or the sake of brevity,” we
“consolidate these grounds” and “set out in the opinion only so
much . . . as we deem necessary to a decision of the questions
involved herein.” [CITATION]
¶14 Sonya first contends that the district court abused its
discretion in making custody and parent-time decisions because
it lacked sufficient information to make those decisions. “We
review custody determinations deferentially, and so long as the
district court’s discretion is exercised within the confines of the
20210787-CA
UT App 16 [CITATION]
legal standards we have set, and the facts and reasons for the
decision are set forth fully in appropriate findings and
conclusions, we will not disturb the resulting award.” [CITATION].
¶15 Sonya next contends that the district court’s findings were
“entirely inadequate to explain” its reasoning for awarding
ownership of the business to Joseph. “We review the legal
sufficiency of factual findings—that is, whether the trial court’s
factual findings are sufficient to support its legal conclusions—
under a correction-of-error standard, according no particular
deference to the trial court.” [CITATION] (cleaned up).
¶16 Lastly, Sonya argues that the district court’s “procedures
and decisions regarding the division of equity in the marital home
were illogical and manifestly unjust.” “Determining and
assigning values to marital property is a matter for the trial court,
and an appellate court will not disturb those determinations
absent a showing of clear abuse of discretion.” [CITATION] (cleaned up), cert. denied, [CITATION].
ANALYSIS
I. A Note on Briefing
¶17 Sonya’s briefing is plagued by significant deficiencies and
does not comply with the Utah Rules of Appellate Procedure for
appropriate briefing. First, excluding the cases cited for the
standards of review, Sonya cites only a single case in her opening
brief, and she does so in a perfunctory fashion—making only a
shallow attempt to explain its relevance to the issues. Sonya
continues this trend in her reply brief, where she cites no cases at
all. In this regard, she falls far short of appellate expectations. “A
party may not simply point toward a pile of sand and expect the
court to build a castle. In both district and appellate courts, the
development of an argument is a party’s responsibility, not a
20210787-CA
UT App 16 Lamb v. Lamb
judicial duty.” [CITATION];
see also Utah R. App. P. 24(a)(8) (“The argument must explain,
with reasoned analysis supported by citations to legal authority
and the record, why the party should prevail on appeal.”); id. R.
24(b)(3).
¶18 Second, in her statement of the case, Sonya fails to include
a single citation to the record. This is in contravention of our
clearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of
the case must include, with citations to the record: (A) the facts of
the case, to the extent necessary to understand the issues
presented for review; (B) the procedural history of the case, to the
extent necessary to understand the issues presented for review;
and (C) the disposition in the court or agency whose judgment or
order is under review.” (emphasis added)). We note that Sonya
somewhat more adequately cites the record in the argument
section of her brief, but that is not what the Utah Rules of
Appellate Procedure require, and by ignoring the rules to suit her
briefing preferences, she does little to bolster judicial efficiency. 6
¶19 We point out these deficiencies not to ridicule, disparage,
or shame counsel, but to provide warning that future briefing of
this nature will likely be deemed inadequate and that any
arguments on the merits may not be substantively considered by
this court. This court receives hundreds of briefs each year. They
vary in quality and in their adherence to the rules. We recognize
that members of the bar have a lot on their plates and occasionally
miss a typo or overlook a citation. But wholesale disregard of
briefing rules is quite beyond the pale and can have unwelcome
6. Nor did Joseph’s counsel provide a single citation to the record
in his brief. This shortcoming is most unhelpful. While an appellee
is not required to file a brief, see, e.g., [CITATION], we observe that if
a brief is filed, it would behoove counsel to provide record
citations. After all, and at the risk of stating the obvious, record
citations are required because in their absence it’s difficult, and at
times impossible, to figure out what the parties are referencing.
20210787-CA
UT App 16 Lamb v. Lamb
[SEGMENT 16]
consequences for attorneys (and their clients) who choose this
risky path. See [CITATION] (“We . . . retain discretion to not address an
argument that is inadequately briefed.” (cleaned up)); accord [CITATION]. And we hasten to point out that
the risk of ignoring briefing requirements should come as no
surprise to any attorney in Utah owing to our multiple references
to the issue over the years. See [CITATION] (stating that the merits of a dispute need not be
reached if an appellant “has not supported the facts set forth in [a]
brief with citations to the record” as required by rule 24(a)(6) of
the Utah Rules of Appellate Procedure); [CITATION] (“We have routinely refused to
consider arguments which do not include a statement of the facts
properly supported by citations to the record.”); [CITATION] (“If a party
fails to make a concise statement of the facts and citation of the
pages in the record where those facts are supported, the court will
assume the correctness of the judgment below.”). That we have
exercised our discretion to address the merits of the issues on
appeal here should not be taken as an imprimatur sanctioning
inadequate briefing but as a conduit to raise awareness of the risk
of ignoring the rules.
¶20 We take this occasion to recall the advice offered by our
supreme court several decades ago:
If the questions involved in a case are of sufficient
importance to justify asking this court to decide
them, they are worthy of the careful consideration
of counsel presenting them. It is the duty of
attorneys practicing in this court to present to the
court the authorities supporting their views and to
assist the court in reaching a correct conclusion.
[CITATION] (cleaned up). With
that, we remind counsel of their responsibility to assist the
20210787-CA
UT App 16 [CITATION]
judiciary in advancing jurisprudence through diligent advocacy,
adherence to our rules, and competent representation.
II. Custody and Parent-Time
A. Disclosure
¶21 Sonya argues that the district court erred in admitting
Family Therapist’s testimony when Joseph had not timely
disclosed him as an expert witness pursuant to rule 26 of the Utah
Rules of Civil Procedure, which requires disclosure “within 14
days after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i).
Sonya’s briefing on this point leaves much to be desired. She
entirely ignores what happened at trial, instead substituting her
own retrospective take on what she believes should have
happened without attempting to explain why her timeliness
argument should now be considered. Providing some persuasive
caselaw—which may or may not exist—would have gone far to
support her argument. But like the rest of her briefing, this part is
inadequate.
¶22 A review of the record shows that Sonya did not object to
Family Therapist’s testimony on the grounds of untimely
disclosure. Instead, Sonya argued that Family Therapist had “far
exceeded any kind of mandate,” that he had not signed
confidentiality waivers, and that allowing his testimony created
patient privacy and ethical violations. In her objection at trial, rule
26 was mentioned only in passing and not in a way that would
suggest she was objecting on timeliness grounds. It certainly
would not have been clear to opposing counsel that a rule 26
timeliness issue was being raised such that he would have known
to argue a harmlessness or good-cause defense for the failure to
disclose, which would have been an easy argument to make given
that both Joseph and Sonya had jointly retained Family Therapist
and Sonya knew about Family Therapist several years before trial.
And it would not have been clear to the district court that it was
being asked to rule on a timeliness-based objection. For these
reasons, Sonya did not preserve any such objection for appellate
20210787-CA
UT App 16 Lamb v. Lamb
review. See [CITATION] (“It is
well established that we will not address the merits of an
unpreserved issue absent a showing that an exception to the
preservation rule applies.”).
B. Hearsay
¶23 Sonya additionally argues that Family Therapist’s
testimony, insofar as he testified as a fact witness, “was
inadmissible hearsay and based entirely on his conversations with
the parties and their children as their reunification therapist.”
Sonya’s hearsay argument is difficult to follow and poorly
briefed. Instead of analysis in support of her hearsay argument,
she provides scant and unsupported assertions.
¶24 Sonya objected below to Family Therapist’s testimony on
the grounds that it was hearsay. But the court ruled that it was not
hearsay, concluding that Family Therapist’s testimony was not
offered “for the truth of the matter asserted.” Rather, the court
ruled that the “focus of [the] questioning” was, first, to allow the
court “to find out how [the children were] doing, if they’re
capable of going forward” and, second, to identify the present
“obstacles” to “structuring visitation with [Sonya].” On appeal,
Sonya makes no attempt to engage with the court’s reasoning,
instead limiting her analysis to a blanket assertion that “it [was]
evident” Family Therapist was “allowed to testify as an expert,
offering hearsay, opinions and recommendations in [a] manner
that simply is not permitted by the Rules of Civil Procedure.”
Such superficial and undeveloped argument is simply not
persuasive, most especially because it does not address the
alleged error in the court’s reasoning. It is well settled that
appellants who fail to “address the district court’s reasoning” also
fail to carry their “burden of persuasion on appeal.” See [CITATION]; see also
[CITATION].
20210787-CA
UT App 16 Lamb v. Lamb
C. Custody Factors
¶25 Sonya next argues that the court did not address the
custody factors outlined in section 30-3-10 of the Utah Code,
making its custody findings insufficient. More specifically, Sonya
argues that the court’s factual findings were deficient due to the
court’s reliance on the testimony of Family Therapist in making
those findings.
¶26 Section 30-3-10 states that in “determining any form of
custody and parent-time . . . , the court shall consider the best
interest of the child and may consider . . . other factors the court
finds relevant,” including factors for each parent articulated in the
code. Utah Code § 30-3-10(2) (emphasis added). These factors a
court may consider are “not on equal footing.” [CITATION]. Instead, “it is
within the trial court’s discretion to determine, based on the facts
before it and within the confines set by the appellate courts, where
a particular factor falls within the spectrum of relative importance
and to accord each factor its appropriate weight.” Id. (emphasis
added). “And where significant evidence concerning a particular
factor is presented to the district court, findings that omit all
discussion of that evidence must be deemed inadequate.”
[CITATION]. Thus, to
“ensure that the trial court’s custody determination, discretionary
as it is, is rationally based, it is essential that the court set forth in
its findings of fact not only that it finds one parent to be the better
person to care for the child, but also the basic facts which show
why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).
¶27 Here, the factors about which the court received significant
evidence concerned Sonya’s ability to function as a parent, which
the court received as testimony from Family Therapist. As we
have explained above, Sonya’s challenges to the admissibility of
Family Therapist’s testimony fail, and we accordingly conclude
that the district court acted well within its discretion in relying on
his testimony.
20210787-CA
UT App 16 [CITATION]
¶28 Regarding Sonya’s ability to parent the two older children,
Family Therapist testified that they were “very angry” with Sonya
and “announced that they would never see or talk to her again.”
Their anger was due to their religious sensibilities and Sonya’s
announcement that she was pregnant by a man other than their
father during the pendency of the divorce.
¶29 With regard to Sonya’s parenting, Family Therapist stated
that the youngest child was very frightened after “his last visit
with [Sonya] when she was struggling psychiatrically.”
Moreover, Family Therapist also testified the youngest child was
beginning to see himself as Sonya’s “partner,” resulting in the
child “becoming parentified.” 7
¶30 Family Therapist further indicated that while he was
unaware of Sonya’s “current condition or functioning,” Sonya
had been “hospitalized and diagnosed with some issues.” He
asserted that “safety” needed to be addressed, meaning that
Sonya required a psychiatric evaluation to demonstrate that her
“situation” was “under control.” He also indicated that Sonya
needed to work on “being forthright with medications.” Sonya,
by her own admission, had “suffered an isolated manic episode”
related to bipolar disorder and “called the police for assistance”
because she was suffering from “visual and auditory
hallucinations.”
[SEGMENT 17]
¶31 Sonya’s briefing on this point misses the mark because it
entirely relies on the assumption that Family Therapist’s
testimony was inadmissible, an assumption we conclude is
7. “Parentification is often referred to as growing up too fast.
Typically, it occurs when a child takes on parental responsibility
for their siblings or even their parents, taking care of a sibling or
parent physically, mentally, or emotionally. This can damage a
child’s mental well-being and lead to long-term mental health
conditions such as depression and anxiety.” Amber Felton, What
Is Parentification, Web MD, https://www.webmd.com/parenting
/what-is-parentification [https://perma.cc/N6TT-Y7QN].
20210787-CA
[CITATION]
without foundation. See supra ¶¶ 21–24. She does not explain why,
in light of Family Therapist’s admissible testimony, the court’s
consideration of the statutory custody factors was insufficient.
Sonya’s briefing makes no attempt to explain why the court is not
allowed to rely on the evidence it receives when making custody
decisions.
¶32 Moreover, Sonya does not identify any “significant
evidence,” see [CITATION], as to the other
factors in section 30-3-10 that the court received but left
unaddressed. Instead, her briefing advances an argument that is
entirely conclusory and unsupported by record citation or legal
authority:
Although § 30-3-10 gives broad discretion to the
court as to the relevance and appropriate weight to
give each factor, the district court in this case simply
did not have any information that would allow it to
make findings as to most of the statutory factors. For
instance, the district court did not know who the
primary caretaker of the children during the
marriage was. The district court did not know
anything about the marriage. The district court
would not permit any testimony relevant to
Joseph’s moral character or his history of drug
abuse and sexual proclivities. The Court would not
allow any testimony as to Joseph’s inability and
unwillingness to co-parent with Sonya. At the end
of the day, the Court simply sidestepped its
responsibility as an independent factfinder and
deferred to [Family Therapist].
This might be a good argument if Sonya had supported it with
citations to the record and to legal authority. As this argument
stands before us, we are unable to verify what it asserts. But we
suspect that Sonya might be indulging in hyperbole here. Indeed,
Sonya’s assertion that “the district court did not know anything
20210787-CA
UT App 16 [CITATION]
about the marriage” is patently false. Our review of the record
indicates that the court, in fact, knew quite a bit about the
marriage, such as its financial situation, issues related to the
children, and the problems that led to its demise, to name just a
few topics within its familiarity. And with regard to Joseph’s
alleged use of illegal drugs, we found only one instance
(subsequently echoed by Sonya’s attorney) in the record where
Sonya asserted before the district court that Joseph had a “cocaine
habit.” But the district court was free to “disregard such testimony
if it [found] the evidence self-serving and not credible,” since the
factfinder “is in the best position to judge the credibility of
witnesses.” See [CITATION]
(cleaned up). An isolated allegation made in passing certainly
does not amount to “significant evidence,” see [CITATION]
especially given the district court’s role as the
factfinder to judge the credibility of witnesses, see [CITATION] And as to the other statutory
custody factors that Sonya asserts the court left unaddressed, she
has not pointed us to any significant evidence that the court
received with respect to those factors.
¶33 Thus, unlike the situation in [CITATION], where we concluded
“that the district court exceeded its discretion by failing to include
in its findings any discussion of the evidence relating to the abuse
allegations against [the mother], her alleged neglect of [the child,]
and her moral character, as well as the effect that evidence had on
its best-interest analysis,” see [CITATION], here there
simply wasn’t significant evidence presented regarding section
30-3-10’s other custody factors. This lack of evidence—insofar as
there was a lack—was not the court’s fault; it was Sonya’s fault
for not presenting it. After all, a court cannot be faulted for failing
to consider evidence that was not presented to it. In contrast,
given the substantial evidence the court did receive about the
serious mental health issues Sonya faced, we conclude that the
district court did not abuse its discretion in its consideration of the
statutory factors when determining that awarding physical
custody to Joseph was in the best interest of the children.
20210787-CA
UT App 16 Lamb v. Lamb
¶34 In sum, Sonya has failed to show that the district court
abused its discretion in accepting and relying on the testimony of
Family Therapist in making custody determinations or that the
district court did not properly address the statutory factors in
determining custody of the children.
III. Ownership of the Business
¶35 Both parties agree that the district court concluded that the
business was not a joint marital asset. The district court awarded
the business to Joseph “[b]ased on [Joseph’s] testimony.” Along
with awarding the business to Joseph, the court stated that Joseph
was “responsible for payment of the purchase price of the
business.”
¶36 Sonya’s briefing on this point is challenging because it
consists largely of recounting financial matters pertaining to the
marriage but unrelated to the ownership of the business. She then
asserts, with no discernible effort to explain why, that the
“findings/conclusions were entirely inadequate to explain the
Court’s reasoning for giving ownership” of the business to
Joseph. Her argument is difficult to follow, but its essence, insofar
as we can tell, appears to be that the court erred in believing
Joseph’s testimony over hers.
¶37 We disagree with Sonya that the court erred in crediting
Joseph’s testimony regarding the ownership of the business over
Sonya’s. Again, the court stated in its factual findings that its
award of the business to Joseph was “[b]ased on [his] testimony.”
In making this credibility determination, the court acted well
within its discretion. “[W]here there exists evidence sufficient to
support a court’s rulings regarding a divorcing couple’s finances,
that ruling will be upheld on appeal, even if evidence was
presented that might have cut the other way.” [CITATION], ¶ 27. This is because “the fact-finder is in the
best position to judge the credibility of witnesses and is free to
disbelieve their testimony. Even where testimony is
uncontroverted, a trial court is free to disregard such testimony if
20210787-CA
UT App 16 Lamb v. Lamb
it finds the evidence self-serving and not credible.” [CITATION]; see also [CITATION] (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).
¶38 Here, the district court was in the best position to judge the
credibility of the parties. It clearly found Joseph’s testimony
regarding the ownership of the business to be more credible.
Sonya has provided no reasoned argument—apart from her
assertion that she disagrees with it—as to why the district court’s
conclusion that the business was not marital property was
erroneous. Accordingly, Sonya has failed to meet her “burden on
appeal to show that no reasonable person would take the view
adopted” by the district court, and we therefore conclude that the
district court did not err in awarding the business, along with its
liabilities, to Joseph. See [CITATION].
IV. Equity in the Marital Home
¶39 Sonya’s final claim is that the district court abused its
discretion in dividing equity in the marital home. “In divorce
8. Sonya also argues that the district court violated her
constitutional due process rights by its “ongoing interference”
with her counsel’s presentation of her case. Quite frankly, apart
from a litany of complaints about the court requiring counsel to
keep her questioning relevant, the contours of her argument on
appeal are difficult to discern, and she fails to cite a single case in
support of the argument. Accordingly, we decline to consider her
due process argument because it is inadequately briefed. See [CITATION] (“The argument must explain, with reasoned
analysis supported by citations to legal authority and the record,
why the party should prevail on appeal.”); see also [CITATION] (“The briefing on this claim . . . is inadequate.
[The appellant’s] briefing on this issue fails to cite any authority
and makes no attempt to connect the law to the facts of this case.”).
20210787-CA
UT App 16 [CITATION]
[SEGMENT 18]
actions, a district court is permitted considerable discretion in
adjusting the financial and property interests of the parties, and
its actions are entitled to a presumption of validity.” [CITATION]. Thus, in
such proceedings,
we will reverse only if (1) there was a
misunderstanding or misapplication of the law
resulting in substantial and prejudicial error; (2) the
factual findings upon which the award was based
are clearly erroneous; or (3) the party challenging
the award shows that such a serious inequity has
resulted as to manifest a clear abuse of discretion.
Because we can properly find abuse only if no
reasonable person would take the view adopted by
the trial court, appellants have a heavy burden to
show that an alleged error falls into any of these
three categories.
[CITATION].
¶40 Sonya’s claim focuses on three aspects of the court’s
valuation of the home: (1) the mortgage amount, (2) the use of the
Zillow estimate, and (3) the amount of the liens on the home. We
address each in turn.
¶41 The Mortgage Amount. Sonya complains that the district
court, based on Joseph’s testimony, should have used $298,000 as
the amount owing on the mortgages rather than $402,000, an
adjustment that would have benefitted her by increasing the
equity she would have received. “Generally, the marital estate is
valued at the time of the divorce decree or trial. However, in the
exercise of its equitable powers, a trial court has broad discretion
to use a different date, such as the date of separation, when
circumstances warrant. If the trial court uses a date other than the
date of the divorce decree, it must support its decision with
sufficiently detailed findings of fact explaining its deviation from
the general rule.” [CITATION]
20210787-CA
UT App 16 [CITATION]
P.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In
response to Sonya’s motion for amended findings, the court
explained, “[Joseph’s] statement of the mortgage balance of
$298,000 was referring to the total amount of all three (3)
mortgages. The Court also took that into evidence taking into
account that it was [Joseph’s] best estimate according to what his
monthly mortgage payments are and how much was deducted
from the principal each month.” We understand this to mean that
the court took into consideration that it was through Joseph’s
extraordinary post-separation payment efforts that the mortgage
amount had been reduced. Moreover, Sonya concedes in her reply
brief that it was within the district court’s discretion to use the
earlier mortgage total. Accordingly, we see no abuse of discretion
in the court’s use of the date of the separation to determine the
amount of the mortgages.
¶42 The Zillow Estimate. Sonya next complains that the home
should have been valued at about $260,000 more than was
indicated by the Zillow estimate the court used. The glaring
problem with this aspect of Sonya’s complaint is that it was her
counsel’s idea to use the Zillow estimate. In open court, her
counsel looked up the estimate and announced it to the court. And
the court proceeded to base its calculations on the very data
Sonya’s counsel supplied. We simply will not countenance
Sonya’s assertion that the district court erred in proceeding to use
the estimate that Sonya herself, through counsel, provided. Sonya
invited any error in this regard. See [CITATION] (“Where a party makes an affirmative
representation encouraging the court to proceed without further
consideration of an issue, an appellate court does not consider the
party’s objection to that action on appeal.” (cleaned up)). In her
briefing on appeal, Sonya points to nothing in the record that
would have allowed the court to value the home using anything
other than the Zillow estimate. Sonya does not challenge that the
court acted on the only information it had and that Sonya herself
provided. Accordingly, “given the absence of any expert financial
testimony, . . . the paucity of assistance the parties offered the
court,” and the representations made by Sonya’s counsel
20210787-CA
UT App 16 Lamb v. Lamb
regarding the marital home’s value, we conclude that “the court
in this instance made findings within its discretion and supported
by the evidence it was given.” [CITATION], ¶ 55.
¶43 The Liens. Sonya argues that the district court abused its
discretion in counting third-party liens against the equity in the
home. Given the evidence the court received, we see no error on
the part of the court in this regard. Indeed, there was evidence to
support the court’s determination that the third-party liens
should be included in the calculation of the home’s equity. Joseph
testified that when he and Sonya purchased the home, they did so
knowing that they were assuming responsibility for some of the
previous owner’s debts. This is an admittedly odd arrangement,
but Joseph testified that they were willing to accept it because they
were not in a financial position to purchase the home otherwise.
Sonya offered no testimony or other evidence to contradict
Joseph’s assertion, and she still points to nothing presented at trial
that contradicted this evidence. Accordingly, we conclude that the
factual findings that included the liability associated with the
third-party liens were not clearly erroneous and that the court did
not abuse its discretion in calculating the home’s equity.
CONCLUSION
¶44 Sonya has not demonstrated that the district court abused
its discretion in its custody determination, in awarding the
business to Joseph, or in its division of equity in the marital home.
Affirmed.
20210787-CA
UT App 16
2024 UT App 3
THE UTAH COURT OF APPEALS
BRIAN K. LEWIS,
Appellant,
v.
U.S. BANK TRUST, NA, AS TRUSTEE FOR LSF9 MASTER
PARTICIPATION TRUST,
Appellee.
Opinion
No. 20220434-CA
Filed January 5, 2024
Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 180600022
Stephanie L. O’Brien, Attorney for Appellant
Heidi G. Goebel, Keith S. Anderson, and Spencer
MacDonald, Attorneys for Appellee
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.
OLIVER, Judge:
¶1 After foreclosure was initiated against property he
purchased in Mona, Utah (the Property), Brian K. Lewis sued the
foreclosing parties, spurring a host of litigation. Lewis appeals the
district court’s grant of summary judgment on the quiet title and
unjust enrichment claims he made against U.S. Bank Trust, NA
(U.S. Bank). Lewis also appeals the court’s grant of summary
judgment to U.S. Bank on its claim for judicial foreclosure on the
Property and the court’s denial of his rule 60(b) motion for relief
from this portion of the judgment. For the reasons laid out below,
we affirm the district court in all respects. [CITATION]
BACKGROUND
¶2 In 2008, the prior owner (Prior Owner) of the Property
financed his purchase of the Property by executing a
promissory note and a deed of trust securing the note. The loan
was eventually sold to LSF9 Master Participation Trust (LSF9),
and after several assignments, the deed was assigned to U.S.
Bank, as trustee on behalf of LSF9. Prior Owner defaulted on the
loan and filed for bankruptcy. Prior Owner’s bankruptcy petition
was discharged, and along with it, his personal obligation on the
loan. 1
0F
¶3 In April 2010, notice of default on the loan was recorded,
noting there had been no payment on the obligation since Prior
Owner’s default. This notice was later “rescind[ed], cancel[led]
and withdraw[n]” on May 1, 2014. But a new notice of default was
entered the same day. A few months later, in August 2014, Prior
Owner sold the Property to Lewis. Lewis claims he “has
maintained” and “put substantial improvements into the
Property” since 2014.
The First Lawsuit
¶4 In July 2016, Lewis was informed that a nonjudicial
foreclosure sale of the Property would occur in September.
Lewis filed a complaint against the foreclosing parties in state
district court, seeking to quiet title and obtain a judgment
preventing future foreclosure. Lewis argued the foreclosing
1. Pursuant to rule 201 of the Utah Rules of Evidence and U.S.
Bank’s request, this court takes judicial notice of Prior Owner’s
bankruptcy proceedings in the United States Bankruptcy Court
for the District of Utah, case number 10-23076. See [CITATION].
[SEGMENT 19]
20220434-CA
UT App 3 [CITATION]
parties had failed to foreclose within the statutory period and
were no longer entitled to do so. This suit (the First Lawsuit) was
removed to the United States District Court for the District of
Utah. See [CITATION]. The federal district court
granted summary judgment in favor of the foreclosing parties,
concluding the statute of limitations period began on May 1, 2014,
and had not run by the time foreclosure proceedings began in
September 2016. Id. at *1. Lewis appealed this decision to the
United States Court of Appeals for the Tenth Circuit, but the
appeal was dismissed for lack of prosecution. See [CITATION].
The Current Lawsuit
¶5 Days after Lewis’s Tenth Circuit appeal was dismissed, he
filed a new complaint (the Current Lawsuit) in state court, this
time against U.S. Bank. Lewis again sought to quiet title in the
Property and to enjoin U.S. Bank from “asserting any estate, right,
title or interest” in the Property. U.S. Bank removed the action to
federal district court. Lewis opposed removal and filed a second
amended complaint in state court. The state court concluded it did
not have jurisdiction over the amended complaint as the case had
been removed to federal court, but based on lack of diversity
jurisdiction, the federal court eventually remanded the case to the
state court.
¶6 U.S. Bank then filed a motion to dismiss Lewis’s complaint
under rule 12(b)(6) of the Utah Rules of Civil Procedure, arguing
the suit was barred by res judicata and failed to state a claim upon
which relief could be granted. Thereafter, the court permitted
Lewis to amend his complaint. Lewis’s third amended complaint
raised a quiet title claim labeled “Quiet Title—Laches” wherein he
alleged U.S. Bank or its predecessors in interest had
“unreasonably delayed enforcing” their rights against the
20220434-CA
UT App 3 [CITATION]
Property. 2 The complaint also alleged U.S. Bank had been unjustly
F
enriched by Lewis’s maintenance and improvement of the
Property.
¶7 U.S. Bank then filed another motion to dismiss, arguing
again that Lewis’s claims were barred by res judicata and were
otherwise meritless. The court agreed that Lewis’s claims for quiet
title and unjust enrichment were barred by res judicata and
dismissed them because they “could and should have been
brought in the earlier lawsuit.” Lewis appealed the dismissal of
his claims to this court. We held that “[b]ecause the district court
could not decide this issue without considering materials outside
the pleadings, the motion to dismiss should have been converted
to one for summary judgment” and we remanded the case to the
district court. [CITATION]. Thereafter, U.S. Bank answered Lewis’s third
amended complaint, again arguing his claims were barred by res
judicata.
¶8 While the Current Lawsuit was pending, U.S. Bank had
initiated a judicial foreclosure of the Property. On U.S. Bank’s
motion, the court consolidated the judicial foreclosure action into
the Current Lawsuit. On April 30, 2020, the May 1, 2014, notice of
default was cancelled.
¶9 U.S. Bank then simultaneously filed two motions for
summary judgment. Though the motions were both captioned
“Motion for Summary Judgment and Memorandum in Support,”
they addressed different issues—one motion concerned Lewis’s
claims for quiet title (the Quiet Title Motion), while the other
focused on U.S. Bank’s foreclosure claim (the Foreclosure
2. Lewis raised a second quiet title claim, alleging the deed of trust
was not properly transferred to U.S. Bank, rendering U.S. Bank
unable to foreclose on the Property. But this claim was later
dismissed by stipulation of the parties.
20220434-CA
UT App 3 [CITATION]
Motion). The Foreclosure Motion stated on its first page that “U.S.
Bank Trust has simultaneously filed a separate motion for
summary judgment as to Mr. Lewis’s claims against U.S. Bank
Trust and which is adopted in full” and later likewise noted the
“simultaneously-filed Motion for Summary Judgment that
addresses Mr. Lewis’s quiet title and unjust enrichment claims.”
The Quiet Title Motion argued Lewis’s quiet title and unjust
enrichment claims were barred by res judicata. The day after U.S.
Bank filed its two motions for summary judgment, it filed a Notice
of Errata, noting that it had “[i]nadvertently” included a
watermark on the Quiet Title Motion. U.S. Bank attached a
corrected motion.
¶10 Lewis’s counsel (Counsel) “mistakenly believed that [the
Quiet Title Motion] was the only pending motion for
summary judgment.” Thus, Lewis filed a single Opposition
to Defendants’ Motion for Summary Judgment addressing
only the Quiet Title Motion. Though Lewis did not directly
oppose the Foreclosure Motion, he did briefly address judicial
foreclosure in his opposition to the Quiet Title Motion, arguing
U.S. Bank did not have a right to foreclose because it could not
demonstrate a “chain of title” establishing assignment of the deed
of trust.
¶11 After a hearing, the court granted both of U.S. Bank’s
motions for summary judgment. The court concluded Lewis’s
quiet title and unjust enrichment claims were barred as a matter
of law by claim preclusion. And the court granted summary
judgment to U.S. Bank on its judicial foreclosure claim, finding the
statute of limitations had not run on the claim. U.S. Bank prepared
a proposed written order memorializing the court’s judgment, but
Lewis objected, arguing the order failed “to clarify and make clear
the consequences and facts surrounding U.S. Bank’s filing of two
(2) Motions for Summary Judgment . . . with identical titles,
followed by an Errata.” The court entered final judgment over
Lewis’s objection.
[CITATION]
¶12 U.S. Bank later filed a motion to amend the judgment
under rule 59 of the Utah Rules of Civil Procedure, arguing the
court had not properly addressed Lewis’s quiet title claims.
Shortly thereafter, Lewis filed a rule 60(b) motion for relief from
the court’s grant of summary judgment to U.S. Bank on its judicial
foreclosure claim. Counsel argued she “encountered a scenario
that was unprecedented in her practice of law when U.S. Bank
filed two (2) separate pleadings titled ‘Motion for Summary
Judgment and Memorandum in Support’” and that the filing of
the Errata caused “confusion,” which constituted mistake or
excusable neglect under rule 60(b)(1). Counsel declared in a
subsequent affidavit that due to the Errata “and the fact that . . .
multiple pleadings were filed by [U.S. Bank] with the same title
on the same date,” she “mistakenly failed to realize a separate
motion for summary judgment was filed on U.S. Bank’s claim for
judicial foreclosure.”
¶13 After a hearing, the court granted U.S. Bank’s rule 59
motion and issued an amended judgment. 3 The court denied
F
Lewis’s rule 60(b) motion, finding Lewis had “not established the
requisite showing of ‘due diligence’ required for relief under” rule
60(b)(1). The amended judgment affirmed the court’s prior grant
of summary judgment to U.S. Bank on both Lewis’s claims and
U.S. Bank’s judicial foreclosure claim.
ISSUES AND STANDARDS OF REVIEW
¶14 On appeal, Lewis argues the district court erred in
concluding his claims for quiet title and unjust enrichment were
barred by claim preclusion. “Whether res judicata, and more
specifically claim preclusion, bars an action presents a question of
law that we review for correctness.” [CITATION]
3. The substance of the amendment is not relevant to this appeal.
20220434-CA
UT App 3 Lewis v. U.S. Bank Trust
¶15 Next, Lewis argues the district court improperly granted
summary judgment to U.S. Bank on its judicial foreclosure claim.
In particular, he argues the court erred in determining the statute
of limitations on the claim had not yet run. “We review summary
judgment decisions for correctness, viewing the facts in a light
most favorable to the losing party below and giving no deference
to the district court’s conclusions of law.” [CITATION].
¶16 Finally, Lewis argues the district court abused its
discretion in denying his rule 60(b)(1) motion. “We review a
district court’s denial of a rule 60(b) motion for relief from
judgment for an abuse of discretion.” [CITATION].
ANALYSIS
I. Lewis’s Quiet Title and Unjust Enrichment Claims
¶17 First, Lewis challenges the district court’s conclusion that
res judicata barred his quiet title and unjust enrichment claims as
a matter of law. “The doctrine of res judicata embraces two
distinct branches: claim preclusion and issue preclusion.” [CITATION]. While
“claim preclusion corresponds to causes of action[,] issue
preclusion corresponds to the facts and issues underlying causes
of action.” [CITATION] (cleaned up). Claim preclusion “is premised on the principle
that a controversy should be adjudicated only once.” [CITATION] (cleaned up). To this end, for claim preclusion to apply,
(1) “both cases must involve the same parties or their privies,”
(2) “the claim that is alleged to be barred must have been
presented in the first suit or be one that could and should have
been raised in the first action,” and (3) “the first suit must have
[SEGMENT 20]
20220434-CA
UT App 3 [CITATION]
resulted in a final judgment on the merits.” Id. (cleaned up). [CITATION]
challenges only the court’s application of the second element of
this test to his claims.
¶18 In determining whether claims “are the same as those
brought or that could have been brought” for claim preclusion
purposes, Utah courts have adopted a transactional test. See [CITATION],
2009 UT 47, ¶ 30. Under this test, claims are the same as those that
could and should have been brought in the prior suit “if they arise
from the same operative facts, or in other words from the same
transaction.” [CITATION], 2019 UT App 213, ¶ 43 (cleaned up). This
test does not turn on “the specific legal theory invoked” but rather
on “the essential similarity of the underlying events giving rise to
the various legal claims,” considering “whether the facts are
related in time, space, origin, or motivation” and “whether they
form a convenient trial unit.” [CITATION], 2012 UT
38, ¶¶ 13–14, 284 P.3d 622 (cleaned up).
¶19 Here, the transaction giving rise to [CITATION]’s quiet title
claims in the Current Lawsuit and the First Lawsuit is the same.
In the First Lawsuit, [CITATION] sought to quiet title to the Property,
arguing the foreclosing parties did not timely initiate foreclosure
proceedings and the statute of limitations on foreclosure had run.
He based that claim on the fact that default on the loan occurred
in 2009 but foreclosure was not initiated until 2016—outside the
applicable six-year statute of limitations. In the Current Lawsuit,
[CITATION] again raised a quiet title claim, arguing this time—under
the doctrine of laches—that U.S. Bank and its predecessors in
interest “unreasonably delayed enforcing their rights against the
Property.” This claim was based on his factual allegations that
“[f]rom July 2010, [U.S. Bank] or its claimed predecessors in
interest could have taken action against the Property” but failed
to do so until 2016.
¶20 Both claims concern the Property, were motivated by
[CITATION]’s desire to prevent foreclosure of the Property, and concern
20220434-CA
UT App 3 [CITATION]
the delay in foreclosure. And Lewis does not suggest that the
viability of his laches claim hinges on the additional delay
incurred between the First Lawsuit and the Current Lawsuit.
Although premised on different legal theories—statute of
limitations versus laches—Lewis’s quiet title claims in the First
Lawsuit and Current Lawsuit arise from the same transaction.
The claims are related in time, space, origin, and motivation, see
id. ¶¶ 13–14, and the laches-based claim could and should have
been brought in the First Lawsuit.
¶21 Likewise, Lewis’s unjust enrichment claim is based on the
same transaction and should have been raised in the First
Lawsuit. Lewis based his unjust enrichment claim in the Current
Lawsuit on his assertion that he “maintained” and “made
substantial improvements to the Property,” thus “conveying a
benefit” on U.S. Bank. Lewis bought the Property on August 26,
2014. And he claims he began improving the Property “by new
construction” sometime in 2015. This means, by the time he filed
the First Lawsuit on August 23, 2016, he would have been able to
bring an unjust enrichment claim based on his supposed
maintenance and improvement.
¶22 Lewis declared that “additional maintenance and
improvements” to the Property since this “new construction”
provide the basis for the unjust enrichment claim in the Current
Lawsuit. (Emphasis added.) But this is a tacit acknowledgement
that Lewis improved the Property prior to the First Lawsuit.
Lewis makes no attempt to differentiate between improvements
made prior to the First Lawsuit and those supposed
improvements giving rise to his unjust enrichment claim in the
Current Lawsuit. And he provides no detail to substantiate what
his supposed improvements are. Thus, we are left to conclude that
this claim is based—at least in part—on improvements made to
the Property prior to the First Lawsuit. Consequently, the unjust
enrichment claim is based on the same operative facts as a claim
that should have been brought in the First Lawsuit.
20220434-CA
UT App 3 [CITATION]
¶23 Because Lewis’s quiet title claim, based on laches, and his
unjust enrichment claim could and should have been raised in the
First Lawsuit, and because the remaining elements of claim
preclusion are undisputed, the district court correctly concluded
that claim preclusion barred Lewis’s claims as a matter of law. 43F
II. U.S. Bank’s Judicial Foreclosure Claim
¶24 Lewis challenges the district court’s conclusion that the
statute of limitations on U.S. Bank’s judicial foreclosure claim had
not begun to run. Under Utah Code section 57-1-34, a person
seeking to foreclose on an obligation secured by trust deed must
either “commence an action” for judicial foreclosure or initiate
nonjudicial foreclosure by filing “a notice of default” “within the
period prescribed by law.” In [CITATION], this court concluded the “period
prescribed by law” is the six-year statute of limitations laid out by
Utah Code section 70A-3-118(1). [CITATION] (cleaned up). Under
section 70A-3-118(1), this six-year statute of limitations begins to
4. Lewis also argues that, in barring his claims based on claim
preclusion, the district court somehow applied res judicata to bar
his defense to U.S. Bank’s judicial foreclosure claim. But in its
order granting summary judgment, the court addressed U.S.
Bank’s judicial foreclosure claim on the merits. The court did not
apply res judicata to prevent Lewis from defending against
judicial foreclosure. This argument is unavailing.
5. Lewis argues U.S. Bank’s judicial foreclosure claim was a
compulsory counterclaim to the First Lawsuit and should
therefore be dismissed. But because this argument is unpreserved,
we do not address it further. See [CITATION] (“It is well established that we will not address the
merits of an unpreserved issue absent a showing that an exception
to the preservation rule applies.”).
20220434-CA
UT App 3 [CITATION]
run “after the due date or dates stated in the note, or, if a due date
is accelerated, within six years after the accelerated due date.”
¶25 Filing a notice of default is an acceleration, causing this
statute of limitations to begin to run. See [CITATION] (“As a result of the
default notice, the [d]ebt was accelerated and immediately due in
full.”); [CITATION] (noting that filing a notice of default was an
“acceleration event” that “triggered the limitations period”), cert.
denied, [CITATION]. A notice of default may be
cancelled, thus halting the statute of limitations; however, filing a
new notice re-accelerates the obligation’s due date and restarts the
statutory period for foreclosure. See [CITATION]
(acknowledging two previously filed notices of default
had been cancelled and the six-year statute of limitations began
running anew when a third notice of default was filed).
¶26 Here, the first notice of default on the loan obligation was
filed in 2010. It was later cancelled on May 1, 2014, but a new
notice was entered on the same day. This notice was later
cancelled on April 30, 2020. This cancellation of the notice of
default halted the six-year statute of limitations period for
foreclosure. See [CITATION]. No new notice of default has been recorded.
Thus, the six-year limitations period for foreclosure had not even
begun by the time U.S. Bank filed its judicial foreclosure action,
and the district court correctly concluded as much. 6 5F
6. Lewis also argues genuinely disputed material facts precluded
summary judgment on U.S. Bank’s judicial foreclosure claim.
Lewis lists four allegedly disputed “facts,” but he makes no
attempt to explain how they precluded summary judgment. And
in his reply brief, he raises factual issues different from those in
his opening brief, again without a meaningful attempt to explain
(continued…)
20220434-CA
UT App 3 [CITATION]
III. Lewis’s Rule 60(b) Motion
¶27 Lastly, Lewis argues the district court abused its discretion
in denying his motion for relief under rule 60(b) of the Utah Rules
of Civil Procedure. “In general, a movant is entitled to have a
default judgment set aside under [rule] 60(b) if (1) the motion is
timely; (2) there is a basis for granting relief under one of the
subsections of 60(b); and (3) the movant has alleged a meritorious
defense.” [CITATION]. Rule
60(b) provides several bases for relief, including “mistake,
inadvertence, surprise, or excusable neglect.” Utah R. Civ. P.
60(b)(1). To qualify for relief under rule 60(b)(1), a movant must
demonstrate due diligence. See [CITATION]. “Due diligence is established where the failure
to act was the result of the neglect one would expect from a
reasonably prudent person under similar circumstances.” [CITATION]
(cleaned up).
[SEGMENT 21]
¶28 Here, Counsel stated she received the e-filing notification
for U.S. Bank’s “Motions for Summary Judgment and
Memorandum in Support.” (Emphasis added.) She also received
U.S. Bank’s Errata, which corrected the Quiet Title Motion. She
believed the Errata replaced previous pleadings and “that there
was only one pending Motion for Summary Judgment.” She then
opposed only the Quiet Title Motion—leaving the Foreclosure
Motion unopposed. Lewis argued the failure to oppose
how they precluded summary judgment. “Appellate courts are
not a depository in which a party may dump the burden of
argument and research.” [CITATION] (cleaned up). As the appellant,
Lewis has “the burden to clearly set forth the issues [he is]
appealing and to provide reasoned argument and legal
authority.” Id. Because he has not done so, we do not address this
argument further.
20220434-CA
UT App 3 [CITATION]
constituted excusable neglect or mistake under rule 60(b)(1)
because “it was unprecedented in [Counsel’s] practice of law” to
file two separate motions for summary judgment, and the
identical captions created a “reasonable scenario in which” she
could believe there was only one motion filed. The district court
disagreed, finding that because Counsel “had notice of, but did
not respond to,” the Foreclosure Motion, her behavior was
“unreasonable” and failed to “establish[] the requisite showing of
‘due diligence’ required.” We agree with the district court.
¶29 “A multitude of Utah decisions” confirm that “failure to
check or read correspondence” demonstrates a lack of due
diligence. [CITATION] (collecting cases), cert. denied, Jan. 2,
2024 (No. 20231057); see id. ¶¶ 14–15 (concluding a party who
ignored emails from its registered agent about service of process
“failed to act with diligence—let alone the due diligence required
to justify relief under rule 60(b)(1)”—because “a reasonably
diligent person would have read these emails and discovered
their content”); [CITATION] (reasoning an attorney who “failed to read
the documents” he received “did not exercise the appropriate
level of diligence required to excuse his neglect, because his
complete lack of action does not meet the standard required, i.e.,
the exercise of due diligence by a reasonably prudent person
under similar circumstances” (cleaned up)).
¶30 At the very least, due diligence required Counsel to read
the documents she received. Had she done so, she would have
known U.S. Bank filed two separate motions for summary
judgment. The first page of the Foreclosure Motion stated, “U.S.
Bank Trust has simultaneously filed a separate motion for
summary judgment as to Mr. Lewis’s claims against U.S. Bank
Trust.” And it noted later, “U.S. Bank adopts and incorporates all
arguments and citations in the simultaneously-filed Motion for
Summary Judgment that address Mr. Lewis’s quiet title and
20220434-CA
UT App 3 Lewis v. U.S. Bank Trust
unjust enrichment claims.” “[F]ailing to read the documents after
receiving them does not qualify” as due diligence. [CITATION] Without a showing of due
diligence, Lewis was not eligible for relief for mistake or
inadvertence under rule 60(b)(1). See [CITATION] And
without a basis for relief under rule 60(b), the district court did
not abuse its discretion in denying the motion.
CONCLUSION
¶31 The district court correctly concluded that Lewis’s quiet
title and unjust enrichment claims were barred by claim
preclusion and that the statute of limitations on U.S. Bank’s
judicial foreclosure claim had not run. And the court acted within
its discretion in denying Lewis’s rule 60(b) motion for relief from
the judgment. Accordingly, we affirm.
20220434-CA
UT App 3
Attributing
You are given a context and an instruction. Respond to the instruction based on the context.
### Context:
[SEGMENT 1]
This opinion is subject to revision before final
publication in the Pacific Reporter
UT 33
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
BREVAN BRINGHURST BAUGH,
Respondent.
No. 20220272
Heard December 13, 2023
Filed August 15, 2024
On Certiorari to the Utah Court of Appeals
First District, Cache County
The Honorable Angela Fonnesbeck
No. 181100862
Attorneys:
Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,
Salt Lake City, for petitioner
Emily Adams, Freya Johnson, Melissa Jo Townsend, Bountiful,
for respondent
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,
JUDGE BEAN, and JUDGE HOWELL joined.
Having recused themselves, JUSTICE HAGEN and JUSTICE POHLMAN
do not participate herein; DISTRICT COURT JUDGE JOSEPH BEAN and
DISTRICT COURT JUDGE ANTHONY HOWELL sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 In 2018, Brevan Bringhurst Baugh was charged with two
counts of aggravated sexual abuse of a child. At trial, the STATE v. BAUGH
Opinion of the Court
prosecution introduced evidence of three instances of alleged
abuse, 1 with the instances distinguished based on the location in
which they occurred. But the two counts charged were
distinguished based on date rather than location. And in the State’s
closing argument, it told the jurors they could use “any two” of the
three alleged instances of abuse to fulfill the elements of the
charged counts. The jury convicted Baugh on one count and
acquitted him on the other.
¶2 Baugh appealed. He argued there was a risk that the jury
did not unanimously agree on which instance of abuse supported
the count on which he was convicted. Baugh also contended that
his counsel rendered constitutionally ineffective assistance by
failing to request jury instructions that would have properly
instructed the jury on its constitutional duty to be unanimous as to
each element of each convicted count. The court of appeals agreed
with Baugh and vacated his sentence.
¶3 We granted the State’s certiorari petition. We affirm.
BACKGROUND
¶4 Between 2012 and 2014, Brevan Bringhurst Baugh lived at
his family home (Nibley Home) with his daughter Sasha 2 and her
mother. In April 2014, Baugh and Sasha’s mother commenced
divorce proceedings, and Baugh moved into a one-bedroom
apartment (Falls Apartment). Sasha and her siblings visited Baugh
while he was living at Falls Apartment. Several years later, Sasha
revealed to her therapist that Baugh had abused her, and her
therapist reported the allegations to the police.
¶5 During the investigation into the abuse, a detective asked
Sasha to call Baugh while the detective listened in. The detective’s
intent was to get Baugh to confess to the crimes. While on the call,
Baugh resisted admitting to the allegations and suggested that
Sasha was not remembering things correctly. He eventually
apologized to Sasha but remained adamant that the apology was
__________________________________________________________
1 We use “alleged abuse” here because, although Baugh was
convicted of one count of aggravated sexual abuse of a child and
acquitted of one count, we cannot know on which instance of
touching the jury based its conviction. Therefore, when referring to
the separate instances of touching, we use the term “alleged.”
2 A pseudonym.
Cite as: [CITATION]
Opinion of the Court
only for inadvertently exposing Sasha to pornography and for her
walking in on him while he was masturbating. When pressed,
Baugh acknowledged that if Sasha remembered abuse occurring,
he wouldn’t deny it. But he insisted that he had no recollection of
abusing Sasha, blaming his failure to remember on his marijuana
use at the time of the alleged acts.
¶6 After this confrontation call, the detective brought Baugh
in for questioning. Baugh restated that he and Sasha didn’t “have
the same recollection of the events.” But he did admit to exposing
Sasha to pornography and that she had once seen him
masturbating. The detective also asked whether Baugh had been
abusing Sasha “for years.” Baugh responded, “For years[?] Okay
no. No.” The detective then asked when was the last time he had
abused Sasha. Baugh responded that it was at Nibley Home.
¶7 On July 9, 2018, Baugh was charged with two counts of
aggravated sexual abuse of a child, a first-degree felony, in
violation of Utah Code subsection 76-5-404.1(4). The first count was
based on alleged conduct that occurred on or about 2012. The
second count was based on alleged conduct that occurred on or
about 2014.
¶8 At trial, Sasha testified that Baugh made her touch his
penis three times between 2012 and 2014. Sasha stated that during
each of these alleged incidents, Baugh put Sasha’s hand on his
penis and moved it up and down until “white stuff came out.”
Sasha testified that the first two alleged incidents occurred while
Baugh and Sasha were lying on Baugh’s bed in Nibley Home. The
final alleged incident occurred when Sasha was twelve and Baugh
had moved out of Nibley Home and into Falls Apartment.
¶9 Baugh countered Sasha’s testimony by testifying that none
of the alleged acts occurred. He insisted that, until Sasha’s
confrontation call, he had no suspicion of the accusations. While
Baugh did admit to accidentally exposing Sasha to pornography
and further admitted that she had walked in on him while he was
masturbating, he remained adamant that he never touched Sasha
and he never had Sasha touch him. He also insisted that the
comments he made during the phone call and subsequent
interrogations were not confessions to having abused Sasha. Baugh
testified that his answer to the final question the detective asked
him during the interrogation was describing the last time he
exposed Sasha to pornography. And when questioned about the
other statements he made on the confrontation call, he stated that
====== End of Part ====== STATE v. BAUGH
Opinion of the Court
he did not outright deny the allegations because he wanted to
validate Sasha’s feelings.
¶10 During closing argument, the prosecution stated that the
two counts charged could be “fulfilled with . . . any two of those
incidents that [Sasha] described, those can be the elements of both
of these counts.” Defense counsel did not object to this statement
nor request more specific unanimity instructions.
¶11 The jury was then instructed. Regarding both counts of
sexual abuse of a child, the jury was told that it must find:
(1) the Defendant, Brevan Baugh, (2) occupied a
position of special trust in relation to Sasha, and
(3) intentionally, knowingly, [or] recklessly touched
the anus, buttocks, genitalia or breast of Sasha or
otherwise took indecent liberties with her or caused
her to take indecent liberties with him, (4) with the
intent to arouse or gratify the sexual desire of any
person regardless of the sex of any participant, and
(5) at the time of the offenses Sasha was under the age
of fourteen.
The jury was also given a general unanimity instruction: “Because
this is a criminal case, every single juror must agree with the verdict
before the Defendant can be found guilty or not.”
¶12 Ultimately, the jury acquitted Baugh of Count One and
convicted him of Count Two. Baugh appealed the conviction. He
argued that his counsel provided ineffective assistance in failing to
request more specific unanimity instructions.
¶13 Article I, section 10 of the Utah Constitution contains the
Unanimous Verdict Clause, which reads, “In criminal cases the
verdict shall be unanimous.” To render a valid verdict under that
clause, the jury must be unanimous on all elements of the charged
crime. 3 Jury instructions must adequately convey this unanimity
requirement to the jury. 4
__________________________________________________________
3 [CITATION]
4 See [CITATION] (explaining
that jury instructions must “fairly instruct the jury on the law
applicable to the case,” and must “accurately convey the law”
(cleaned up)).
Cite as: 2024 UT 33
Opinion of the Court
¶14 In reviewing Baugh’s appeal, the court of appeals applied
these principles and reasoned that, much like in its recent decision
in [CITATION] Baugh’s counsel’s performed deficiently by
failing to request jury instructions that instructed the jury to be
unanimous on which specific act supported which specific charge. [CITATION]
It further reasoned that these ambiguous instructions could have
led some jurors to convict Baugh based on one alleged instance of
abuse and others to convict on another alleged instance, in violation
of the unanimity requirement. [CITATION] Because of that risk, the court of
appeals held that Baugh was prejudiced by defense counsel’s
deficient performance and vacated his conviction. [CITATION] We granted the
State’s petition for certiorari.
STANDARD OF REVIEW
¶15 The State challenges the court of appeals’ determination
that Baugh’s counsel provided constitutionally ineffective
assistance by failing to request more specific unanimity
instructions. “[W]e review the court of appeals’ decision for
correctness.” [CITATION]
ANALYSIS
¶16 An ineffective assistance of counsel claim has two
elements. “First, the defendant must show that counsel’s
performance was deficient.” [CITATION] “Second, the defendant must show
that the deficient performance prejudiced the defense.” [CITATION] “[F]ailure
to establish either prong is fatal to an ineffective assistance of
counsel claim.” [CITATION]
¶17 The State argues that neither prong of this test is satisfied.
First, the State contends that Baugh’s counsel’s performance was
reasonable because Unanimous Verdict Clause caselaw regarding
[SEGMENT 2]
__________________________________________________________
[CITATION] (cleaned up).
STATE v. BAUGH
Opinion of the Court
how a jury must be instructed on unanimity is ambiguous. Second,
the State argues that the court of appeals erred in its prejudice
analysis by failing to analyze whether there was a reasonable
probability that a jury would have convicted Baugh absent
counsel’s deficient performance. The appellate court’s error, the
State contends, is significant because Baugh did not carry his
burden of showing that any alleged deficient performance
prejudiced him.
¶18 We disagree with the State on both points.
I. BAUGH’S COUNSEL PERFORMED DEFICIENTLY BY FAILING TO
REQUEST A MORE DETAILED UNANIMITY INSTRUCTION
¶19 To constitute deficient performance, counsel’s
representation must fall “below an objective standard of
reasonableness.” Reasonableness is determined by “prevailing
professional norms.” Whether “counsel’s actions can be
considered strategic plays an important role in our analysis” of
whether counsel’s performance was deficient, but lack of strategic
advantage is not conclusive in determining whether counsel’s
performance was unreasonable. “A reviewing court must always
base its deficiency determination on the ultimate question of
whether counsel’s act or omission fell below an objective standard
of reasonableness.”
¶20 The State challenges the court of appeals’ deficient
performance analysis, claiming that the court of appeals
misapprehended Unanimous Verdict Clause caselaw. In its
analysis, the court of appeals relied on [CITATION] to determine that
Baugh’s counsel’s performance was deficient. The court reasoned
that, in [CITATION], it had correctly understood Unanimous Verdict
Clause caselaw. In that case, the court dictated that “[w]here
neither the charges nor the elements instructions link each count to
a particular act, instructing the jury that it must agree as to which
criminal acts occurred is critical to ensuring unanimity on each
__________________________________________________________
[CITATION] (cleaned up).
[CITATION] (citing
[CITATION]).
Cite as: 2024 UT 33
Opinion of the Court
element of each crime.” 18 And because neither the charges, the jury
instructions, nor the State’s presentation of evidence in Baugh’s
case linked specific conduct to each count, the court of appeals held
that Baugh’s counsel’s failure to request more specific unanimity
instructions constituted deficient performance. 19
¶21 But the State argues that the caselaw regarding the kind of
jury instructions necessary to ensure unanimity was not clear when
[CITATION] was decided. The court of appeals had, according to the State,
incorrectly treated [CITATION]—a plurality opinion—as
established precedent and had extended its narrow holding past
what this court intended. Without [CITATION] as established
precedent, the State argues that the court of appeals’ reasoning falls
apart because any remaining binding precedent was either not
dispositive or inapplicable.
¶22 We now begin our analysis with our own review of the
relevant caselaw on the Unanimous Verdict Clause in article I,
section 10 of the Utah Constitution.
¶23 The Unanimous Verdict Clause requires that “the [jury’s]
verdict shall be unanimous” in all criminal cases. 21 It is not enough
that the jury find the defendant “guilty of some crime.” 22 For
example, a verdict would not be unanimous “if some jurors found
a defendant guilty of a robbery committed on December 25, 1990,
in Salt Lake City, but other jurors found him guilty of a robbery
committed January 15, 1991, in Denver, Colorado, even though all
jurors” agreed that he was guilty of robbery. 23 The jury must be
unanimous “as to a specific crime and as to each element of the
crime” to comply with the Unanimous Verdict Clause. 24 Neither
party disputes this premise.
¶24 Although our caselaw is clear that the jury must be
unanimous as to each element of each count of a crime, it is less
__________________________________________________________
18 [CITATION]
21 UTAH CONST. art. I, § 10.
22 [CITATION] (cleaned up).
23 [CITATION] (cleaned up).
24 [CITATION] (plurality opinion).
STATE v. BAUGH
Opinion of the Court
clear how that unanimity requirement must be conveyed to the jury
in multiple-act cases like Baugh’s, where a defendant is charged
with multiple counts of a crime with identical elements. 25
¶25 In [CITATION], the defendant was charged with one count of
sexual abuse of a child. 26 The prosecution presented evidence of
several acts, any one of which could satisfy the touching element of
the charge.27 The unanimity instruction given to the jury stated that
there was “no requirement that the jurors be unanimous about
precisely which act occurred or when or where the act or acts
occurred.” 28 On appeal, we held that it was plain error for the trial
court to give these instructions, as they could have led the jurors to
believe that it was acceptable to render a non-unanimous verdict.29
But [CITATION] did not establish clear precedent on multiple-act cases
because the relevant portion of the opinion was a plurality. 30
¶26 Our next case on the issue, [CITATION], provided no
more clarity regarding the form jury instructions should take to
ensure a unanimous verdict.31 In that case, the defendant
challenged jury instructions that presented two alternative theories
for finding aggravating factors, without mentioning unanimity. 32
__________________________________________________________
25 We note that we establish in [CITATION]—which is
published simultaneously with this case—how unanimity must be
conveyed to the jury in multiple-act cases in which charges are not
connected to specific conduct in the jury instructions. [CITATION] was charged with
multiple offenses, but the solitary sexual abuse charge is the only
one relevant to our analysis.
27 Id. ¶ 5.
28 Id. ¶ 65.
29 Id. ¶¶ 65, 68 (plurality opinion); id. ¶ 70 (Howe, C.J.,
concurring in part and dissenting in part); id. ¶ 79 (Zimmerman, J.,
concurring in part and dissenting in part).
30 See id. ¶¶ 67, 68 (Russon, J., concurring in the result); id. ¶ 70
(Howe, C.J., concurring in part and dissenting in part); id. ¶ 79
(Zimmerman, J., concurring in part and dissenting in part).
31 [CITATION].
32 Id. ¶¶ 15–16.
Cite as: 2024 UT 33
Opinion of the Court
In holding that it was not plain error for the court to give these jury
instructions, we stated that the instructions created the risk of only
slight confusion as to the unanimity required by the jury.[CITATION] The
State argues that [CITATION] establishes that the lack of a specific
unanimity instruction only ever creates a risk of “slight confusion”
for a jury. But that reads too much into this court’s opinion.
¶27 The [CITATION] court stated that it was “unconvinced that the
slight confusion that may have arisen from the wording of the
instructions used [at trial] present[ed] a reasonable likelihood of a
more favorable result for defendant.” [CITATION] Such language indicates a
case- and fact-specific holding, rather than a general
pronouncement, and we decline to extend this holding beyond that
case.
¶28 In [CITATION], which had not been decided at the time of
Baugh’s trial, the court of appeals surveyed the state of the law
regarding jury unanimity instructions in multiple-act cases. [CITATION] In
[CITATION], the defendant was charged with six counts of aggravated
sexual abuse of a child. [CITATION] But, as in [CITATION], the jury instructions did
not connect each count to a separate instance of touching. [CITATION] The jury
was given a general unanimity instruction informing it that all
jurors must be unanimous regarding the guilt of the defendant. [CITATION]
During deliberations, the jury asked twice for clarification “on how
the counts work,” and asked in particular how to “weigh each
count when they are all the same.” [CITATION] The court referred the jury
back to its instructions. [CITATION] The jury convicted [CITATION] on two counts
and acquitted him on the rest. [CITATION]
STATE v. BAUGH
Opinion of the Court
¶29 The court of appeals reviewed the jury’s verdict to
determine whether counsel was ineffective for failing to request
more specific unanimity instructions. 42 It reasoned that the state of
the law “should have been readily apparent” based on our holding
in [CITATION]: “[w]here neither the charges nor the elements
instructions link each count to a particular act, instructing the jury
that it must agree as to which criminal acts occurred is critical to
ensuring unanimity on each element of each crime.” 43 This blanket
statement fails to recognize the reduced weight that [CITATION] must
be given as a plurality opinion. Because the relevant portion of
[CITATION] did not represent the opinion of the majority of the court,
the court of appeals could rely only on that case’s outcome as
binding precedent, not its reasoning. 44
¶30 Although the court of appeals may have overstated the
weight of the holding in [CITATION], that case was still the most
relevant precedent at the time and thus an indicator to reasonable
counsel of the range of appropriate actions. Relevant case law is one
of several factors to consider in assessing the reasonableness of
counsel’s performance. And that counsel’s performance was
objectively unreasonable because not requesting specific unanimity
instructions effectively lowered the State’s burden of proof was
another factor. Taken together, these two factors still support the
court of appeals’ conclusion that Alires’s counsel performed
deficiently despite the court’s overstatement of [CITATION] as binding
precedent.
¶31 Having reviewed the state of the law regarding the
standard for instructing a jury on unanimity, we turn to Baugh’s
case. Despite the unsettled law in this area, it is clear in Baugh’s
case that the jury was not adequately instructed.
¶32 Baugh was charged with sexual abuse of a child. Under
Utah Code subsection 76-5-404.1(2)(a), a person is guilty of sexual
abuse of a child if “the actor: . . . [1] touches, whether over or under
__________________________________________________________
42 [CITATION] (citing [CITATION] (plurality
opinion)).
[SEGMENT 3]
44 See [CITATION] (explaining that
plurality opinions “do not constitute binding precedent); see also
[CITATION] (stating that a
plurality opinion’s analysis “is not binding”).
Cite as: 2024 UT 33
Opinion of the Court
the clothing, the buttocks or pubic area of a child; . . . the breast of
a female child; or . . . otherwise takes indecent liberties with a
child,” and “[2] the actor’s conduct is with intent to . . . cause
substantial emotional or bodily pain to any individual; or . . .
arouse or gratify the sexual desire of any individual.” Caselaw is
clear that the jury must be unanimous as to each element of each
count of that crime. [CITATION] In practice, this means that the jury must
agree on which incident of touching satisfies each count. If the jury
does not agree on which act relates to each count, then its verdict
violates the Unanimous Verdict Clause.
¶33 The jury in Baugh’s case was given a general unanimity
instruction that read, “Because this is a criminal case, every single
juror must agree with the verdict before the defendant can be found
guilty or not guilty.” Trial counsel did not request a more specific
unanimity instruction.
¶34 The circumstances of Baugh’s case created an
unacceptable risk of a non-unanimous verdict, and a reasonable
attorney would have recognized that risk. Baugh was charged with
two counts of aggravated sexual abuse of a child for alleged acts
occurring in 2012 and 2014. During his trial, the State presented
evidence to the jury of three instances of touching. But the jury was
not told when these alleged instances occurred, only where the
alleged instances occurred. The State presented evidence of two
instances of touching that occurred at Nibley Home and one that
occurred at Falls Apartment.
¶35 The State’s presentation of evidence created tension
between the evidence and the counts, which were distinguished
only by date: one count for 2012 and one count for 2014. Because
Baugh lived in both Nibley Home and Falls Apartment in 2014, that
tension left room for ambiguity. And that ambiguity left room for
non-unanimity. The jurors could agree that touching occurred in
2014 but disagree as to whether the specific instance of touching
occurred at Nibley Home or Falls Apartment. And did the jury’s
verdict did not eliminate the problem. The jury acquitted Baugh on
the 2012 count but convicted him on the 2014 count, leaving open
the possibility that the jurors may have disagreed on which specific
instance of touching the State had proven.
___________________________________________________________
[CITATION]
STATE v. BAUGH
Opinion of the Court
¶36 The State also declined to connect specific instances of
touching with a count. [CITATION] We have noted that “courts in Utah and
elsewhere have determined that a unanimity problem can be
remedied by prosecutorial election.”[CITATION] That is, the harm that can
flow from a lack of a specific unanimity instruction might, in some
cases, be mitigated if the prosecutor elects, in closing argument, to
spell out for the jury which alleged actions correspond to which
charged counts. The absence of prosecutorial election here further
indicates that reasonable counsel would have been concerned
about unanimity because there was nothing to mitigate the harm of
erroneous jury instructions.
¶37 The presence of a legal error “does not necessarily mean
that defense counsel’s failure to object to the error amounted to
deficient performance.” [CITATION] And there is a “wide range of reasonable
professional assistance.” [CITATION] But taking each of the above
opportunities for jury confusion together, no reasonable attorney
would have failed to request more specific unanimity instructions.
¶38 Baugh’s counsel was presented with three instances of
touching that were not specifically attached to the two counts
charged. And in the State’s closing argument, it told the jury that it
could fulfill the counts with any two of the alleged instances of
conduct. This statement suggested to the jury that it could
__________________________________________________________
[CITATION] In criminal cases in which the State has not specified which
acts it relied on to support each charged count, it may elect to do so
during trial. See [CITATION]. We call this
decision prosecutorial election. See [CITATION]. For example, in this case, the two counts of sexual
abuse were not connected to specific acts when charged. They were
distinguished only by approximate date. The State, in its closing
argument, could have elected to attach one of the three alleged acts
to a specific count instead of telling the jury that it could choose
from any of the three alleged acts to satisfy the elements of either
count. That election might have mitigated the harm flowing from
Baugh’s counsel’s failure to ask for a specific unanimity instruction.
But the State declined to make an election, and Baugh, as we
describe below, was harmed by his counsel’s failure to act.
[CITATION]
Cite as: 2024 UT 33
Opinion of the Court
impermissibly mix-and-match the instances of touching when
reaching its verdict. The high risk for non-unanimity was clear.
¶39 Further, there were no circumstances in this case that
mitigated the risk of a non-unanimous verdict. The evidence for
each of the instances of touching was fairly equal in persuasive
force. 50 So the evidence was not overwhelmingly stronger for any
one instance such that any reasonable jury could have only
convicted on that count.
¶40 And there was no strategic advantage to not requesting
more specific unanimity instructions. Doing so would not have
directed the jury to any especially damaging evidence, and failing
to do so effectively lowered the State’s burden of proof for the
touching element. 51
¶41 Because the risk of a non-unanimous verdict would have
been clear to reasonable counsel, Baugh’s counsel’s failure to
request more specific unanimity instructions was objectively
unreasonable. Therefore, his counsel’s performance was deficient.
II. BAUGH’S COUNSEL’S DEFICIENT PERFORMANCE
PREJUDICED BAUGH
¶42 To prevail on an ineffective assistance of counsel claim, the
defendant must show that “counsel’s errors actually had an
adverse effect on the defense,” 52 and that there is a “reasonable
probability that, but for [those] . . . errors, the result of the
proceeding would have been different.” 53 “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” 54 It is insufficient “for the defendant to show that the
__________________________________________________________
50 See [CITATION].
51 See [CITATION] (explaining that failing to
request more specific unanimity instructions in the face of a risk of
a non-unanimous verdict “effectively lower[s] the State’s burden of
proof”).
52 [CITATION] (cleaned up).
53 [CITATION]; see also [CITATION] (explaining Strickland’s
prejudice standard).
54 [CITATION]; see also [CITATION]
(quoting [CITATION]).
STATE v. BAUGH
Opinion of the Court
errors had some conceivable effect on the outcome of the
proceeding.” 55 And “a verdict or conclusion only weakly
supported by the record is more likely to have been affected by
errors than one with overwhelming record support.” 56
¶43 The State argues that the court of appeals failed to consider
whether the jury would have convicted absent defense counsel’s
error. In the State’s view, the court of appeals completed only a
portion of the Strickland prejudice analysis: whether the jury
convicted Baugh because of counsel’s deficient performance.
¶44 While we acknowledge the court of appeals may not have
signposted its inquiry as clearly as possible, we are satisfied that
the court conducted the requisite analysis. And we agree that
counsel’s deficient performance prejudiced Baugh.
¶45 The court of appeals began its analysis by correctly
summarizing Strickland’s prejudice standard. [CITATION] The court then
considered the totality of the evidence before the jury. Sasha
testified about three instances of abuse—two occurring at Nibley
Home and one at Falls Apartment—but distinguished these
instances only by the location. [CITATION] And “[t]he jury instructions
distinguished the counts, not by location but based on the date of
the alleged abuse—2012 for count one and 2014 for count two.” [CITATION]
But in 2012, Baugh lived at both Nibley Home and Falls
Apartment. [CITATION]
¶46 So the jury received evidence of the alleged instances of
touching based only on location but was expected to connect these
instances of touching to counts distinguished only by date. And
although only those instances taking place at Nibley Home could
have been connected to the first count, any of the three alleged
instances could have been connected to the 2014 count because
Baugh lived at both Nibley Home and Falls Apartment in 2014.
Given that the jury acquitted Baugh on the 2012 count and
[SEGMENT 4]
__________________________________________________________
[CITATION]
Cite as: 2024 UT 33
Opinion of the Court
convicted him on the 2014 count, its verdict didn’t resolve the risk
that some jurors convicted based on an act that took place at Nibley
Home, while others convicted based on an act that occurred at Falls
Apartment.
¶47 Next, the court of appeals considered Baugh’s
“confessions” and his explanation of them at trial. During the
investigation, Sasha called Baugh to confront him about the
abuse. [CITATION] The State argues that Baugh admitted to the abuse during
the call saying, “if you say I did it, then—then I’m sure I did,” and
“I’m not going to deny it.” Later, during interrogation, the detective
asked Baugh if he had been abusing Sasha for years, to which he
replied, “For years[?] Okay. No.” The State paints that as another
admission. And when asked when he last abused Sasha, Baugh
said it was “at the Nibley [Home].” A third admission, according
to the State.
¶48 But, as the court of appeals noted, Baugh’s statements
during the confrontation call and subsequent interrogations do not
amount to an unequivocal confession. [CITATION] During the confrontation
call, interrogation, and at trial, Baugh maintained that he had not
abused Sasha. And he offered testimony at trial that his
“admissions” were simply an attempt to validate his daughter’s
feelings despite her “getting things mixed up.”
¶49 Finally, the court of appeals considered the State’s closing
argument, where the prosecutor told the jurors that the “two counts
can be fulfilled with . . . any two of those experiences” described at
trial and that “any two of those incidents . . . can be the elements of
both of these counts.” [CITATION]
¶50 Reviewing the evidence as a whole, the court of appeals
concluded that its “confidence in the outcome ha[d] been
undermined.” [CITATION] Because the jury was instructed on the counts
based on the dates of the alleged instances but was only given
evidence of the counts based on the location of those instances, the
court reasoned, there was “a reasonable probability that the jurors
__________________________________________________________
[CITATION]
STATE v. BAUGH
Opinion of the Court
did not agree on which act of alleged abuse supported each
count.” [CITATION]
¶51 And, relevant to the State’s claim that the court of appeals
did not consider whether the jury would have come to a different
conclusion absent counsel’s errors, the appellate court explained
that it was not confident that the jury would have come to the same
conclusion if it had received more specific unanimity instructions. [CITATION]
And it noted that the evidence presented was not overwhelmingly
stronger for either of the two counts. [CITATION] Further, despite some
evidence that Baugh had confessed, his explanation of his
statements created the possibility that a reasonable jury could have
found his “confession” unconvincing. [CITATION] Therefore, the court of
appeals concluded, it could not “identify one charge on which [it
could] say with confidence [the jury] would have convicted.” [CITATION] As
such, the court found “a reasonable probability that but for defense
counsel’s” failure to request more specific unanimity instructions,
“the proceeding’s outcome would have differed.” [CITATION]
¶52 The court of appeals applied the correct standard in its
analysis of the prejudicial effect of counsel’s error, considered the
totality of the evidence presented at trial, and correctly concluded
that there was a reasonable probability of a different outcome had
defense counsel requested more specific unanimity instructions.
CONCLUSION
¶53 In order to succeed on his claim of ineffective assistance of
counsel, Baugh had to show that his counsel’s performance was
deficient and that the deficient performance prejudiced him. The
court of appeals correctly concluded that Baugh made those
showings. Because the risk of non-unanimity was significant, and,
given the state of the law regarding jury unanimity as to elements,
Baugh’s counsel performed deficiently by failing to request more
specific unanimity instructions. Further, there was a reasonable
__________________________________________________________
[CITATION]
Cite as: [CITATION]
Opinion of the Court
probability that the jury would not have convicted Baugh had the
error not occurred. Therefore, we hold that Baugh’s counsel was
ineffective and affirm the court of appeals’ vacation of Baugh’s
conviction.
2024 UT App 79
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LISA YVONNE OREILLY,
Appellant.
Opinion
No. 20230104-CA
Filed May 23, 2024
Sixth District Court, Panguitch Department
The Honorable Mandy Larsen
No. 181600010
Nicolas C. Wilde and Trevor J. Lee,
Attorneys for Appellant
Barry Huntington and Jerry Jaeger,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.
ORME, Judge:
¶1 Lisa Yvonne Oreilly appeals her convictions for possession
of methamphetamine, possession of marijuana, and possession of
drug paraphernalia. Oreilly argues she was denied her
constitutional right to counsel and, thus, is entitled to a new trial.
Orielly’s challenge is based on the assertion that her trial counsel
labored under an actual conflict of interest because counsel
represented both her and her codefendant, Michael Thompson.
We agree with Oreilly that because of the joint representation she
is not required to show prejudice under the traditional ineffective
assistance analysis, but we deny the requested relief because State v. Oreilly
Oreilly has not carried her burden of showing the existence of an
actual conflict of interest.
BACKGROUND 1
¶2 Acting on a tip, a Utah Highway Patrol trooper and
sergeant located a vehicle parked in front of a rest stop bathroom
in February 2018. The vehicle was empty and, according to the
sergeant, “parked crooked, unusual.” Less than a minute after the
officers arrived, Oreilly and Thompson emerged from the
bathroom. Both officers described Oreilly and Thompson as
nervous and seemingly under the influence of drugs.
¶3 The officers approached and made contact with Oreilly
and Thompson. Thompson was arrested when a driver license
check revealed two outstanding arrest warrants. After Oreilly
said she did not have a valid driver license and the officers
determined neither Oreilly nor Thompson owned the vehicle, the
decision was made to have the vehicle towed.
¶4 At some point during the encounter, a trained K-9 handler
with the Garfield County Sheriff’s Office arrived at the scene and
walked his dog around the vehicle. The dog alerted to the
presence of drugs. The officers then conducted a physical search
of the vehicle and found marijuana, marijuana grinders, a
marijuana pipe, a baggie containing methamphetamine, a clear
container containing methamphetamine, and syringes containing
methamphetamine. All of the items were in areas accessible to
both the driver and the passenger.
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” [CITATION]
20230104-CA
UT App 79 [CITATION]
¶5 Thompson told the trooper that all the seized evidence
belonged to him. Oreilly told the sergeant and the trooper that the
pipe and a grinder belonged to her. She also informed the trooper
that the substance in the syringes was methamphetamine, not
heroin, stating, “I can guarantee you that whatever you did find,
it ain’t heroin. I could guarantee you that it’s probably
methamphetamine.” The trooper observed and took pictures of
needle marks and bruising on Oreilly’s arms. The trooper later
reviewed a video recorded while Oreilly and Thompson were
seated in his patrol car. The video showed Oreilly acknowledging
to Thompson that she knew used syringes were present in the
vehicle and stating that she had disposed of a syringe in the rest
stop bathroom. The video also showed Oreilly and Thompson
discussing who should take responsibility for the seized evidence,
with Oreilly stating, “So, I don’t know what to do and this is
gonna sound really shitty but maybe you should take the blame
and then I’ll bail you out babe.” Later in the recording, Oreilly
said to Thompson, “If it goes all on me, then I can’t get you out. . . .
Is it selfish of me to make you take all the rap? Was that selfish of
me?”
¶6 Oreilly was subsequently charged with possession of
methamphetamine, possession of marijuana, and possession of
drug paraphernalia. Thompson was charged in a separate
information with the same crimes. At their initial appearance,
Oreilly and Thompson were provided with a copy of the
applicable information and advised of their right to counsel. Both
defendants asked the court to continue the initial appearances
until they could hire an attorney. After noting that Oreilly’s case
and Thompson’s case were assigned to two different judges, the
district court stated, “I think just pretrial, we could probably keep
the cases together.”
[SEGMENT 5]
¶7 In June 2018, an attorney appeared before the district court
on behalf of both Oreilly and Thompson. When the court asked
whether the two matters should be heard together, the attorney
20230104-CA
UT App 79 State v. Oreilly
responded, “Yeah. It’s the same facts and we can consolidate
them[.]” The cases were then set for a preliminary hearing, but
Oreilly later waived her right to a preliminary hearing. The
attorney represented Oreilly at her arraignment and entered a
plea of not guilty on her behalf.
¶8 The attorney subsequently attended several hearings on
various matters involving Oreilly’s case. Nothing in the
transcripts of these hearings indicates that the district court ever
inquired into the propriety of the attorney’s joint representation
of Oreilly and Thompson. Nor does the record show that the
attorney or Oreilly raised any concerns with the court stemming
from the attorney’s joint representation. In fact, at a pretrial
conference in January 2020, it was the attorney who asked the
court to “consolidate the two cases and try them together.” In May
2020, the attorney again told the district court he had “no
objection to consolidating the cases and just having one jury and
one trial for both cases.” In June 2021, the attorney indicated he
and his clients were “comfortable” with a joint trial. Oreilly was
present for this hearing. She did not express any concerns with
the attorney’s joint representation, and the district court did not
inquire into the possibility of a conflict of interest.
¶9 Oreilly and Thompson were tried together in August 2022.
Neither defendant was incarcerated at the time of trial and neither
appeared for the one-day trial. The State presented, inter alia, the
testimony of the trooper and the sergeant describing their
encounter with Oreilly and Thompson, as summarized above.
The attorney for Oreilly and Thompson did not call any witnesses
for the defense, but during closing argument, he highlighted that
the vehicle in which the drugs and paraphernalia were found was
not owned by Oreilly or Thompson, implying the items could
belong to the owner. The attorney also questioned whether the
officers acted properly in video-recording Oreilly and Thompson
while they sat in the trooper’s patrol car.
[CITATION] State v. Oreilly
¶10 The jury found Oreilly and Thompson guilty of all charged
crimes, and the court later imposed sentences for each. Oreilly
then filed this timely appeal.
ISSUE AND STANDARD OF REVIEW
¶11 Oreilly seeks reversal of her convictions based on a claim
of ineffective assistance of counsel. The Sixth Amendment to the
United States Constitution guarantees a criminal defendant the
right to effective assistance of counsel. 2 See [CITATION]. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as a
matter of law.” [CITATION].
¶12 Typically, a defendant challenging her conviction based on
ineffective assistance of counsel must demonstrate that counsel’s
performance was deficient and that she was prejudiced by the
deficient performance. See [CITATION]. Here, however, Oreilly’s ineffective assistance claim is
based on allegations that her attorney’s joint representation of her
and her codefendant gave rise to a conflict of interest. Absent
special circumstances not present in this matter, see [CITATION],
an appellant asserting an
ineffective assistance claim based on an actual conflict of interest
2. Oreilly also raises an ineffective assistance of counsel claim
under Article I, Section 12 of the Utah Constitution. Because she
does not differentiate between her federal and state claims, we
follow the lead of the Utah Supreme Court and “consider only the
claim based on the federal Constitution.” [CITATION].
20230104-CA
UT App 79 State v. Oreilly
arising from joint representation can prevail without
demonstrating prejudice if she can show the alleged conflict
actually existed and that it adversely affected her attorney’s
performance, [CITATION].
¶13 “To establish an actual conflict of interest, [an appellant]
must show a conflict that affected counsel’s performance—as
opposed to a mere theoretical division of loyalties.” [CITATION]
(quotation simplified). A conflict arising from joint representation affects counsel’s
performance if “arguments or actions allegedly omitted would
likely have been made by other counsel” and there was no
“tactical reason (other than the asserted conflict) for the
omission.” [CITATION]
ANALYSIS
I. A Preliminary Matter
¶14 As an initial matter, the State argues Oreilly cannot
proceed under the theory that an actual conflict existed because
she did not timely object to the attorney’s joint representation.
This argument is based on a misreading of both United States
Supreme Court and Utah precedent.
¶15 In [CITATION], the United
States Supreme Court addressed a claim that trial counsel was
constitutionally ineffective because he simultaneously
represented three codefendants. [CITATION]. Counsel repeatedly
alerted the trial court to a “probable risk of a conflict of interests”
arising from his joint representation. [CITATION]. The trial
court, however, failed to appoint new counsel or inquire into the
nature and scope of the alleged conflict. [CITATION]. Under these
circumstances, the Supreme Court held that the defendant was
entitled to a presumption the conflict resulted in ineffective
20230104-CA
UT App 79 State v. Oreilly
assistance of counsel and the “automatic” reversal of his
conviction. [CITATION]. Two years later, in [CITATION], the Supreme Court refused to extend its automatic
reversal ruling to a situation where the alleged conflict arising
from joint representation was not brought to the attention of the
trial court. See [CITATION]. The Supreme Court held that a
presumption of an actual conflict and accompanying automatic
reversal of a conviction are appropriate only when the trial court
fails to provide “a defendant who objects to multiple
representation” with “the opportunity to show that potential
conflicts impermissibly imperil his right to a fair trial.” [CITATION].
Otherwise, “[u]nless the trial court knows or reasonably should
know that a particular conflict exists, the court need not initiate
an inquiry.” [CITATION].
¶16 In [CITATION], this court
applied the holdings in Holloway and Cuyler to a situation in
which the defendant and his codefendant were represented by
two attorneys from the same public defender office. See [CITATION].
This court noted that the Sixth Amendment does not
require a trial court to question the propriety of joint
representation sua sponte unless the court knows or reasonably
should know that a conflict exists because of the joint
representation. [CITATION]. As the Supreme Court stated in
[CITATION], “[a]bsent special circumstances, . . . trial courts may
assume either that multiple representation entails no conflict or
that the lawyer and his clients knowingly accept such risk of
conflict as may exist.” [CITATION]. See also [CITATION] (“[W]here counsel makes
no objection at trial, the trial court may presume that no improper
conflict due to joint representation is present.”). Instead, the
presumption of ineffective assistance and the automatic reversal
remedy established by Holloway are triggered only when the trial
court knew or should have known of a potential conflict and
failed to investigate. [CITATION]. One such situation—
20230104-CA
UT App 79 State v. Oreilly
the one present in Holloway—is when a trial court fails to take
adequate steps after a potential conflict is brought to its attention
by an “objecting defendant.” [CITATION] at 73 (“The [CITATION] court explained
that the [CITATION] presumption of prejudice from a possible
conflict of interest is only appropriate in cases where the trial
court did not provide an objecting defendant with an opportunity
to show that potential conflicts impermissibly imperil his right to
a fair trial.”) (quotation simplified).
¶17 The State misreads these cases as precluding a criminal
defendant from raising an ineffective assistance claim based on a
conflict of interest arising from joint representation without first
showing she made a timely objection to the joint representation—
a situation not present here. The State overlooks our cogent
summary of the rule applicable to joint representation set out in
[CITATION]:
[W]here . . . the potential conflict is brought to the
attention of the trial court by counsel before or
during the early stages of trial, the trial court must
take adequate steps to resolve the issue. If a trial
court fails to investigate such a potential conflict of
interest, we presume prejudice and reverse. A
defendant who fails to bring a potential conflict to
the attention of the trial court must show on appeal
that an actual conflict of interest existed which
adversely affected his or her lawyer’s performance.
[CITATION] at 922–23 (citations omitted).
[SEGMENT 6]
¶18 Thus, under our precedent, Oreilly’s failure to object to the
attorney’s joint representation does not preclude her from raising
an ineffective assistance claim based on allegations of a conflict of
interest arising from joint representation. Rather, her failure to
timely object means that she does not benefit from an automatic
reversal of her conviction. Instead, she is required to show the
20230104-CA
UT App 79 State v. Oreilly
existence of “an actual conflict which affected . . . her attorney’s
performance,” and if she does make such a showing, she need not
also “demonstrate prejudice.” [CITATION] (emphasis added). Therefore, Oreilly is not required to show
prejudice under the traditional ineffective assistance analysis, but
she can prevail on the particular ineffective assistance claim she
has raised only if she meets her appellate burden of showing that
an actual conflict adversely affected her attorney’s
representation. 3
II. No Actual Conflict
¶19 Having determined that Oreilly’s claim of ineffective
assistance is properly before this court, we must address whether
she has met her burden of showing the existence of an actual
conflict of interest that affected her counsel’s performance. “In
order to show an actual conflict of interest existed, a defendant
must point to specific instances in the record to suggest an actual
conflict or impairment of his or her interests. There is no violation
where the conflict is irrelevant or merely hypothetical; there must
be an actual, significant conflict.” [CITATION]
¶20 In [CITATION], this court considered whether the appellant met
his burden of showing an actual conflict where there was a
“substantial disparity” in the evidence incriminating him and his
jointly represented codefendant. [CITATION] This court borrowed its
substantial-disparity analysis from the Colorado Supreme Court’s
opinion in [CITATION] See [CITATION]
3. Oreilly does not claim she is entitled to the presumption her
counsel was ineffective because the trial court failed to investigate
a potential conflict of which it knew or should have known. See
[CITATION]
20230104-CA
UT App 79 State v. Oreilly
defendants were charged with widely differing criminal activity
and “the great bulk of the evidence introduced at trial was
directed toward [one defendant’s] alleged culpability.” [CITATION]
Because of counsel’s joint representation, he was unable to
highlight the evidentiary disparities to the jury. [CITATION]
Under these circumstances, the Colorado Supreme Court held
that the appellant met his burden of showing an actual conflict.
[CITATION] The Armstrong court explained the reasoning behind
permitting a defendant to demonstrate an actual conflict by
showing a substantial disparity in the evidence, stating that an
actual conflict existed because “[f]or one defendant, the disparity
should be emphasized to demonstrate the weakness of the case
against and lesser culpability of that defendant. For the other
defendant, any disparity in the quantity or quality of the evidence
should be ignored or diminished.” [CITATION]
¶21 But this court reached the opposite conclusion in Webb on
very different facts. There, two defendants represented by two
public defenders from the same office were charged with
aggravated robbery. [CITATION] We held that there
was no substantial disparity in the evidence notwithstanding the
fact that there was eyewitness testimony identifying only one of
the two defendants “as the robber in the store.” [CITATION] We noted
that (1) there was testimony the codefendant was directly
involved in the crime and (2) the jointly represented defendants
both testified at trial and “gave entirely consistent, corroborative
testimony” supporting their joint defense that other individuals
were culpable for the criminal conduct charged against them. [CITATION]
For these reasons, we concluded that “counsel’s loyalty was not
divided between [two codefendants] with actual conflicting
interests.” [CITATION]
¶22 We revisited the substantial disparity issue in State v.
Newman, [CITATION] We again
distinguished Armstrong on the basis that the jointly represented
defendants in Newman “were charged essentially with the same
20230104-CA
UT App 79 State v. Oreilly
crimes” whereas in [CITATION] the defendants were charged with
differing levels of participation in a single criminal episode. [CITATION]. Thus, we concluded, “the likelihood of a conflict” was
not present. [CITATION].
¶23 Oreilly argues there was a disparity in the weight of the
evidence between the methamphetamine charges brought against
her and Thompson because Thompson voluntarily admitted to
law enforcement that all the items found in the vehicle belonged
to him, but she admitted only to possession of the marijuana pipe
and grinder. 4 According to Oreilly, voluntary admissions are
among the strongest forms of evidence available to prosecutors
and Thompson’s admission is sufficient to establish the required
substantial disparity. But [CITATION], and [CITATION] all stand
for the proposition that the substantial disparity inquiry is not
focused solely on the quantum of evidence presented against each
codefendant. As we stated in [CITATION], a disparity in evidence is
not substantial unless the differing weight raises the “likelihood
of a conflict” because, for example, the codefendants were
charged with different conduct as in [CITATION]. See [CITATION]. That is not
the situation here.
¶24 Oreilly and Thompson were charged with the same three
crimes, and they presented the same defense at trial—attempting
to attribute the drugs and paraphernalia to the owner of the
vehicle. These circumstances are on the same footing as those in
[CITATION], where the jointly represented defendants were both
charged with the same crime—aggravated robbery—and they
pursued the same defense of placing the blame on third parties.
See [CITATION]. Similarly, in [CITATION], the three
4. Because we conclude Oreilly is not entitled to relief on her
ineffective assistance claim even if we consider Thompson’s
admission to law enforcement, it is not necessary to resolve the
State’s argument that Thompson’s statement was inadmissible
hearsay that Oreilly’s attorney could not comment on at trial.
20230104-CA
UT App 79 State v. Oreilly
codefendants were charged with “essentially” the same crimes
and presented the “common, unified defense” that the victim was
the aggressor in the incident. [CITATION]. In Newman, we
concluded there was no likelihood of a conflict under these
circumstances, distinguishing Armstrong by noting the
codefendants in Armstrong were charged with “disparate . . .
criminal conduct.” [CITATION] (quotation simplified). See also [CITATION] (“[W]hen co-defendants are accused of varying
degrees of participation in an episode of criminal conduct, joint
representation invariably places defense counsel in the middle of
conflicting interests.”) (emphasis added).
¶25 Oreilly has not identified any case in which a jointly
represented defendant charged with the same crimes as her
codefendant has shown that a disparity in the weight of the
evidence presented against each resulted in an actual conflict of
interest. Nor is this a case in which the rule should be extended to
such a situation, because even assuming the weight of the
evidence against Thompson exceeded the weight against Oreilly,
that disparity did not create the likelihood of a conflict.
¶26 Oreilly was charged with possession of
methamphetamine, possession of marijuana, and possession of
drug paraphernalia. “For possession charges, the circumstantial
evidence necessary to convict is evidence showing a sufficient
nexus between the accused and the contraband to permit an
inference that the accused had both the power and the intent to
exercise dominion and control over the contraband.” [CITATION] (quotation simplified). A
jury may consider, inter alia, “ownership and/or occupancy of the
residence or vehicle, presence of the defendant when the
contraband is discovered, the defendant’s proximity to the
contraband, previous drug use by the defendant (if the
contraband is drug-related), incriminating statements or
behavior, and presence of contraband in a specific area where the
defendant had control.” [CITATION] (quotation simplified). Although
20230104-CA
UT App 79 State v. Oreilly
Thompson told officers he owned the drugs and paraphernalia,
Utah law criminalizes possession, not ownership. Ownership is only
one of numerous factors that a jury may consider when it
evaluates whether a defendant is guilty of possession. See id.
¶27 Oreilly concedes the evidence against her “was not
insignificant.” As to the marijuana and paraphernalia charges, she
specifically told the trooper and the sergeant that the pipe and a
grinder belonged to her. The evidence showing Oreilly also
possessed methamphetamine included her conversation with
Thompson while they sat in the trooper’s patrol car. She told
Thompson she threw a syringe away in the rest stop bathroom.
That statement is consistent with the trooper’s testimony that
Oreilly appeared to be under the influence of drugs when she
exited the bathroom. There was also testimony Oreilly had needle
marks and bruising on her arms, indicating previous drug use.
Oreilly and Thompson also discussed the used syringes found in
the vehicle and whether it was illegal to keep them after using
them. Oreilly later told the trooper that any drugs officers found
were methamphetamine, not heroin. And, critically, there was
testimony that all the seized evidence was accessible to both the
driver and the passenger.
[SEGMENT 7]
¶28 Our review of the record confirms that any defense
Oreilly’s attorney could pursue on her behalf would not be
materially aided by Thompson’s admission that he owned all the
drugs and paraphernalia. “[P]ossession of a controlled substance
need not be exclusive and is often joint.” [CITATION] The
State’s evidence shows that Oreilly “had both the power and the
intent to exercise dominion and control over the contraband”
even if Thompson owned the contraband or also possessed it.
[CITATION] Thus,
Thompson’s admission of ownership did not diminish Oreilly’s
culpability on the possession charges, let alone potentially
exculpate her of the charges. Under the circumstances here,
20230104-CA
UT App 79 [CITATION]
ownership was essentially irrelevant and Oreilly has not shown
how her attorney could use Thompson’s admission in her favor.
Thus, there is no likelihood that any disparity in evidence gave
rise to an actual conflict of interest.
CONCLUSION
¶29 Because Oreilly has failed to demonstrate an actual conflict
of interest that resulted in the denial of effective assistance of
counsel, she is not entitled to the relief she seeks, and her
convictions are affirmed.
20230104-CA
[CITATION]
2024 UT App 29
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
NAWAF RAHEEM,
Appellant.
Opinion
No. 20200720-CA
Filed March 7, 2024
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151910845
Freyja Johnson, Emily Adams, and Hannah
Leavitt-Howell, Attorneys for Appellant
Sean D. Reyes and Marian Decker,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.
ORME, Judge:
¶1 Nawaf Raheem challenges his conviction for aggravated
sexual assault on several grounds. He contends that the State
provided insufficient evidence at trial to support the mens rea
element of the crime. He also argues that his trial attorney
(Counsel) was constitutionally ineffective by failing to investigate
and call a witness to testify in his defense. Relatedly, he seeks
reversal “in the interests of fairness” based on our recent reversal
of his co-defendant’s conviction on an ineffective assistance of
counsel claim. Lastly, he argues that improper statements from
the State and inadmissible testimony from its witnesses prevented
him from receiving a fair trial. We affirm. [CITATION]
BACKGROUND 1
¶2 One night in October 2012, Shannon 2 and a coworker
(Coworker) visited a hookah lounge that they frequented. The
hookah lounge was “a big party place” at which people would
smoke hookah, listen to music, and dance. There, Shannon and
Coworker were joined by another friend (Friend) and Shannon’s
then-boyfriend. Raheem, the owner of the hookah lounge, and
Kevin Salazar, a regular customer, were also there that night.
Shannon considered both Raheem and Salazar to be her friends.
¶3 At trial, Shannon testified that Salazar, who looked as if he
had been crying, asked her to join him in a storage closet to talk.
She stated that he shut the door behind her and began kissing her
neck. Shannon told Salazar to stop, that she had a boyfriend, and
that she “didn’t want to be in there,” but he was undeterred.
¶4 Because it had been “a minute,” Friend went to look for
Shannon. She knocked on the storage closet door and tried to
enter, but the door was locked. Raheem, who had also been
standing outside the storage closet, then knocked on the door.
Salazar opened the door for him, and Raheem “slid” inside. One
of the men locked the door behind Raheem, leaving Friend
outside and unable to enter. Friend testified that she then “just
started banging on the door.” At one point after Raheem entered,
Friend heard Shannon say, “Help me.” 3
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” [CITATION]
2. A pseudonym.
3. Friend initially testified that Raheem was still in the hallway
when she heard Shannon say, “Help me.” But on
(continued…)
20200720-CA
UT App 29 State v. Raheem
¶5 Shannon testified that when she heard Raheem knock on
the door, she thought she “was going to be able to walk out of that
room” and that Raheem would “stop the situation.” But instead
of helping Shannon, Raheem pushed her against Salazar, bent her
over, pulled down her pants, and vaginally penetrated her with
his penis. At the same time, Salazar removed his pants and
inserted his penis into her mouth. Shannon did not “agree[] to
what was going on,” but she could not recall whether she said
anything.
¶6 Shannon next recalled them all being on the ground, with
her on top of Salazar and Raheem behind her. Salazar “was
having sex vaginally and [Raheem] was anally.” She again could
not remember whether she said anything at that point. While
doing this, the men “high fived” each other and Salazar said,
“Double penetration.” At some point, they also removed
Shannon’s bra, leaving her “basically nude.”
¶7 When Shannon heard Friend “banging on the door” and
“yelling” “something about a key,” she began to cry, and Salazar
and Raheem stopped assaulting her. Shannon then dressed, ran
out of the storage closet, and left the hookah lounge. Shannon’s
boyfriend had already left the hookah lounge at that
point.
¶8 Friend estimated that approximately five minutes had
passed between when she began “banging on the door” and when
Shannon exited the closet. Friend pursued Shannon, briefly
returning to the hookah lounge to retrieve Shannon’s purse and
keys, and the two left. Friend testified that Shannon “was really
distraught,” crying and saying, “Help me.” In the car, Shannon
told Friend what had happened in the storage closet. Shannon
cross-examination, Friend clarified that she heard Shannon’s cry
for help after Raheem entered the storage closet.
[CITATION]
then dropped Friend off at home and told her that “she was going
to go home and call the police.”
¶9 Coworker testified that when Shannon returned from the
storage closet, “she was hysterical, sobbing,” and “barely able to
form sentences because she was crying so hard.” Shannon told
her, “I have to go. I have to get out of here,” and, “[W]e have to
go. I was raped. These two guys took me into a closet and raped
me.” Shannon then yelled “at a group of individuals” “something
to the effect of, ‘I can’t believe you did this. I’m going to make you
pay.’” Coworker offered to take Shannon to the emergency room,
but she declined the offer and “just wanted to go to her car.”
¶10 Shannon did not call the police when she arrived home.
Instead, she called another friend and told him that she had been
raped. The friend reported the rape to the police. A detective met
with Shannon that same night, and she told him what had
happened at the hookah lounge. The detective testified that
during the conversation, Shannon would not look him in the eye
and her posture was “slumped, saddened.”
¶11 The detective convinced Shannon to go to the hospital that
night for an examination. The examination revealed some bruises
and abrasions on Shannon’s body, as well as injuries to the
perineum, below the rectum, and to the rectum. The examining
nurse testified at trial that Shannon’s examination “stuck out” to
her because “it was the worst rectal injury [she had] seen on a
patient.” But she conceded that it was nonetheless possible for
those injuries to be the product of consensual sex. The nurse also
testified that, among other things, during the examination,
Shannon “stated she felt as though she blacked out during the
assault.”
¶12 At the time, Shannon did not “want to go forward with the
prosecution of the case” because she did not wish to cause stress
to her dying father. Given that she and Raheem “were around the
same areas, same places,” she saw Raheem “a few times” after
that night. But because she “didn’t want to make a scene,” and
[CITATION]
because she “wasn’t going to move forward with anything,” she
“acted like nothing happened” on such occasions. On
cross-examination, Shannon stated that she did return to the
hookah lounge with friends in 2013, but she did not recall seeing
Raheem at that time. She also stated she saw Raheem at a party in
2016 and that she came within eight feet of him. Shannon could
not remember whether she saw Salazar again after the night of the
party.
[SEGMENT 8]
¶13 In 2015, a year after her father passed away, Shannon was
contacted by the producers of a television program that dealt in
unresolved crimes. The producers were interested in her case and
Shannon agreed to participate in the show. As a result, the police
reopened the case.
¶14 With Shannon’s cooperation, the State charged Salazar and
Raheem each with one count of aggravated sexual assault.
Raheem and Salazar, represented by different counsel, were tried
jointly in 2019—nearly seven years after the sexual assault in the
storage closet. At trial, the State presented testimony from, among
others, Shannon, Friend, Coworker, the friend who called the
police, the detective who interviewed Shannon on the night of the
incident, a detective who interviewed Shannon in 2015, and the
examining nurse. That testimony is recounted, in relevant parts,
above. Of note, Shannon’s testimony contained multiple instances
in which she could not remember specifics and had to refresh her
memory by reviewing copies of her police interview, the report
from the sexual assault exam, and the preliminary hearing
transcript. Additionally, as detailed in Part III.A below, certain
statements made by the witnesses and by the prosecutors were
the subject of objections and a motion for mistrial.
¶15 As part of his defense case, Raheem called his brother and
a friend to testify. His brother testified that he was working at the
hookah lounge that night and that he eventually went looking for
Raheem. He stated that when he knocked on the storage closet
door, Raheem stepped out, followed by Shannon. He stated that
Shannon smiled at him and that she did not appear to be upset or
[CITATION] State v. [CITATION]
to have been crying. He had not heard “any screaming or crying
or anybody call for help” before knocking on the door. He testified
that Friend then appeared and pulled Shannon by the arm, and
the two “start[ed] walking and talking.”
¶16 Raheem’s friend testified that he was also at the hookah
lounge that night and that he saw Salazar and Shannon walk into
the storage closet, followed about a minute later by Raheem. He
did not hear “any crying, screaming or calls for help” coming
from the closet before or after Raheem entered. He stated that
approximately five minutes later, he saw Raheem’s brother knock
on the door and that Raheem, Salazar, and Shannon all exited the
closet. To him, Shannon did not appear upset or to have been
crying. He testified that Friend, who did appear upset, then
approached Shannon and pulled her away.
¶17 During closing argument, Counsel asserted, among other
things, that Shannon, Raheem, and Salazar engaged in a
consensual threesome in the closet. He argued that Shannon’s
returning to the hookah lounge in 2013 and coming within eight
feet of Raheem at the 2016 party suggested that she had not been
sexually assaulted that night. He further asserted that Shannon’s
testimony was unreliable and that it should be disregarded in its
entirety.
¶18 The jury convicted Raheem and Salazar as charged.
Subsequently, through new counsel, Raheem filed motions to
arrest judgment and for a new trial. In the motion to arrest
judgment, he argued, in relevant part, that the State failed to
prove that he “at the very least . . . acted recklessly in regard to
[Shannon’s] consent.” And in the motion for a new trial, Raheem
argued, among other things, that he was entitled to a new trial
because Counsel was ineffective for failing to investigate and call
Raheem’s then-girlfriend (Girlfriend) to testify as part of the
defense and that the State and its witnesses made several
impermissible statements throughout trial. The trial court denied
both motions.
[CITATION] State v. Raheem
¶19 Raheem appeals. 5
ISSUES AND STANDARDS OF REVIEW
¶20 Raheem raises three issues for our consideration. First, he
argues that the State failed to prove that he was at least reckless
as to Shannon’s nonconsent. He raised this argument before the
trial court in a motion to arrest judgment. 6 “We review a district
court’s grant or denial of a motion . . . to arrest judgment for
correctness.” [CITATION] (quotation simplified). We will “uphold a denial of the motion . . .
to arrest judgment based on an insufficiency of the evidence
5. Salazar separately appealed. See [CITATION]. We
reversed Salazar’s conviction and remanded for a new trial. See id.
¶ 60; infra Part II.B.
6. Citing [CITATION], the State
argues that this sufficiency challenge is unpreserved because it
could have been raised at trial. See id. ¶ 49 n.15 (“[A]n objection
that could have been raised at trial cannot be preserved in a
post-trial motion.”). In response, Raheem contends that the State’s
broad interpretation of Fullerton “skirt[s] the plain language” of
rule 23 of the Utah Rules of Criminal Procedure, which says that
“At any time prior to the imposition of sentence, the court upon
its own initiative may, or upon motion of a defendant shall, arrest
judgment if the facts proved or admitted do not constitute a public
offense, or the defendant is mentally ill, or there is other good
cause for the arrest of judgment.” Raheem further asserts that
“[CITATION] simply asserts that defendants cannot ‘preserve issues
like prosecutorial misconduct through motions to arrest
judgment.’” See [CITATION]. Because we
ultimately resolve the merits of this argument in the State’s favor,
we need not resolve this preservation issue. See [CITATION].
20200720-CA
UT App 29 State v. Raheem
claim, if some evidence exists from which a reasonable jury could
find that the elements of the crime had been proven beyond a
reasonable doubt.” Id. (quotation simplified). See [CITATION],
2020 UT 65, ¶ 31, 477 P.3d 1251 (“We reverse the denial of a
motion to arrest judgment only if the evidence, viewed in the light
most favorable to the verdict, is so inconclusive or so inherently
improbable as to an element of the crime that reasonable minds
must have entertained a reasonable doubt as to that element.”)
(quotation simplified).
¶21 Second, Raheem argues that Counsel was ineffective for
failing to investigate and present evidence at trial that would have
undercut Shannon’s credibility. Although Raheem raised this
issue in his motion for a new trial, “[t]here is no reason . . . to
depart from the standard of review set out in [CITATION] simply
because the appeal was preceded by a motion for new trial.” [CITATION],
805 P.2d 182, 185–86 (Utah 1990). That is, “ineffective
assistance of counsel claims present a mixed question of fact and
law.” Id. at 186 (citing [CITATION], 466 U.S. 668, 698
(1984)). We thus “review a trial court’s application of the law to
the facts for correctness and, if applicable, we review the court’s
findings of fact for clear error.” [CITATION], 2021 UT
App 74, ¶ 26, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah 2021).
See [CITATION], 2022 UT App 38, ¶ 31 & n.14, 509 P.3d 198, cert.
denied, 525 P.3d 1258 (Utah 2022).
¶22 Third, Raheem argues that “[i]mproper statements from
the State and inadmissible testimony from its witnesses prevented
[him] from receiving a fair trial.” 7 He also raised this argument in
a motion for a new trial. We “generally review a district court’s
denial of a motion for a new trial for abuse of discretion, but we
7. The State argues that although certain objectionable statements
were the subject of unsuccessful motions for mistrial, this
argument is also unpreserved because Raheem first raised the
“expanded cumulative-prejudice claim in a post-verdict motion.”
For the same reason discussed above, see supra note 6, we do not
reach this preservation argument.
20200720-CA
UT App 29 State v. Raheem
review any underlying legal conclusions for correctness.” [CITATION].
ANALYSIS
I. Sufficiency of the Evidence
¶23 To convict Raheem of aggravated sexual assault, the State
had to prove not only that Shannon did not consent to the sexual
activity that occurred in the storage closet but also that Raheem
was, at the very least, reckless as to Shannon’s nonconsent. See
Utah Code Ann. § 76-2-102 (LexisNexis 2017) (“Every offense not
involving strict liability shall require a culpable mental state, and
when the definition of the offense does not specify a culpable
mental state and the offense does not involve strict liability, intent,
knowledge, or recklessness shall suffice to establish criminal
responsibility.”); id. § 76-5-405(2)(a) (Supp. 2023) (stating that an
element of aggravated sexual assault includes the commission of
rape or forcible sodomy); [CITATION] (“The crime of rape [or forcible sodomy] requires proof not
only that a defendant knowingly, intentionally, or recklessly had
sexual intercourse [or engaged in sodomy], but also that he had
the requisite mens rea as to the victim’s nonconsent.”) (quotation
simplified). On appeal, Raheem challenges only the sufficiency of
the State’s evidence of his recklessness as to Shannon’s
nonconsent.
[SEGMENT 9]
¶24 A person acts recklessly
with respect to circumstances surrounding his
conduct or the result of his conduct when he is
aware of but consciously disregards a substantial
8. Because the applicable provisions of the Utah Code in effect at
the relevant time do not differ from those currently in effect in any
way material to this appeal, we cite the current version of the code
for convenience.
20200720-CA
UT App 29 State v. Raheem
and unjustifiable risk that the circumstances exist or
the result will occur. The risk must be of such a
nature and degree that its disregard constitutes a
gross deviation from the standard of care that an
ordinary person would exercise under all the
circumstances as viewed from the actor’s
standpoint.
Id. § 76-2-103(3) (2017). Thus, the State was required to prove, at
the very least, that Raheem “was subjectively aware of but
consciously disregarded the risk” of Shannon’s nonconsent. [CITATION] (quotation
simplified). See [CITATION] (stating
that one is reckless when “one perceives a risk and consciously
disregards it”).
¶25 “Intent can be proven by circumstantial evidence.” [CITATION] (quotation simplified).
Indeed, “unless a confession is made by the defendant concerning
intent, or unless the court is somehow able to open the mind of
the defendant to examine his motivations, intent is of necessity
proven by circumstantial evidence.” Id. (quotation simplified).
And in determining intent, “the factfinder . . . is entitled to draw
all reasonable inferences from the facts and from the actions of the
defendant.” Id. (quotation simplified). See id. ¶ 106 (“The criminal
intent of a party may be inferred from circumstances such as
presence, companionship, and conduct before and after the
offense.”) (quotation simplified). “A jury’s inference is reasonable
unless it falls to a level of inconsistency or incredibility that no
reasonable jury could accept.” [CITATION] (quotation simplified). Thus, where the evidence
supporting an element of a crime is circumstantial, which will
almost always be the case for the mens rea element, “we must
determine . . . whether the inferences that can be drawn from that
evidence have a basis in logic and reasonable human experience
sufficient to prove each legal element of the offense beyond a
reasonable doubt.” [CITATION]
20200720-CA
UT App 29 State v. Raheem
391 (quotation simplified). “The issue is not whether some other
(innocent) inference might have been reasonable. It is simply
whether the inference adopted by the jury was sustainable.”
[CITATION]. An inference is
not sustainable if it “give[s] rise to only remote or speculative
possibilities of guilt.” [CITATION].
¶26 In denying Raheem’s motion to arrest judgment, the trial
court concluded that “there was sufficient evidence at trial for the
jury to find [Raheem] at the very least acted recklessly in raping
or sodomizing” Shannon. Pointing to Shannon’s testimony that
she was trying to exit the storage closet at the time Raheem
entered, the court stated that “[t]he jury could reasonably have
concluded [Raheem] locked the door, creating a circumstance
where he could prevent [Shannon] from leaving the room and
could overcome her through physical force.” The court also
pointed to Friend’s testimony that she heard Shannon call for help
sometime after Raheem entered the storage closet “and the door
was not opened for at least five minutes, creating a circumstance
where the jury could have believed [Shannon] did not consent
through words or conduct.” The court also stated that the jury
heard testimony from the examining nurse that Shannon told her
“she felt as though she blacked out during the assault,” which
“create[ed] a circumstance where the jury could reasonably
believe [Raheem] knew [Shannon] was unconscious or unaware
the acts were occurring.” Finally, the court stated that “it is
reasonable for the jury to conclude a person engaging in sexual
activity with another person in a small and cramped space would
not consent to a third person approaching her from behind,
removing her pants, and penetrating her anally with his penis,”
causing “severe” rectal injuries that “were consistent with
nonconsensual sexual acts.”
¶27 On appeal, Raheem argues that “[t]he evidence the district
court relied on in its analysis does not prove that [he] acted with
a criminal mindset about [Shannon’s] nonconsent.” He then raises
several challenges to the court’s analysis:
20200720-CA
UT App 29 [CITATION]
• He asserts that the act of locking the closet door “does not
support an inference that [he] was aware of and
consciously disregarded a risk that [Shannon] did not
consent” because “[i]t is common to lock a door when
engaging in consensual sexual activity” and because
Shannon did not testify that she took any action that should
have alerted [CITATION] to the fact that she was trying to exit
the storage closet.
• He takes issue with the court’s suggestion that the jury
could infer that he was reckless as to Shannon’s nonconsent
based on the type and location of sexual activity that
occurred because “[i]ndividuals engage in diverse
consensual sexual activity.”
• He challenges the court’s conclusion that the jury could
infer recklessness from Friend’s testimony that the door
was not opened for five minutes after Friend heard
Shannon call for help from the inside. He contends that,
even crediting Friend’s testimony, any such inference “is
unsupported speculation” because Shannon testified that
the men ceased the sexual intercourse when she started
crying and the fact “[t]hat it took five minutes for the three
to dress and emerge does not support an inference that [he]
continued sex.”
• He argues that the court’s focus on the injuries the
examining nurse documented during the sexual assault
examination was improper because those injuries went
toward consent rather than recklessness. And he asserts
that, in any event, the injuries did not establish nonconsent
because the nurse testified that they could have been
caused by consensual intercourse.
• He argues that the court’s reliance on the examining
nurse’s testimony that Shannon “stated she felt as though
she blacked out during the assault” was inappropriate
because “[w]ithout information about timing, evidence
[CITATION]
that [Shannon] ‘felt as though she blacked out’ at some
unspecified moment does not support an inference that
[he] was aware of and disregarded a risk that she did not
consent during the sexual activity.” He further argues that
the evidence did not support an inference that Shannon
visibly lost consciousness.
¶28 In addition to challenging the court’s reasons for denying
his motion to arrest judgment, [CITATION] contends that the State
presented insufficient evidence in other respects to prove that he
was at least reckless as to Shannon’s nonconsent. 9 He argues the
following points:
• Shannon told Salazar to stop kissing her on the neck and
that she “didn’t want to be in” the storage closet before
[CITATION] entered the closet, and the State presented no
evidence that [CITATION] heard this interaction from the
other side of the door.
• Although Shannon testified that she “was trying to get
out” when [CITATION] entered the closet, “she did not testify
that she did or said anything at that point” that would
have made him aware of that fact.
• After [CITATION] entered the closet, Shannon “did not testify
about any verbal or nonverbal cues that could have made
9. [CITATION]’s arguments are limited to addressing the first part of
the recklessness definition, i.e., whether he was “aware of but
consciously disregard[ed] a substantial and unjustifiable risk
that” Shannon did not consent. Utah Code Ann. § 76-2-103(3)
(LexisNexis 2017). He does not argue that the risk was not “of
such a nature and degree that its disregard constitute[d] a gross
deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from [his]
standpoint.” Id.
[CITATION] State v. Raheem
[him] aware that she did not consent” to the sexual activity
that was about to occur.
• Shannon “did not testify to any actions or reactions that
would have made [him] aware of a risk that she did not
consent” either when he bent her over and had vaginal sex
with her or when he had anal sex with her after they were
all on the ground. To the contrary, he points to the fact that
Shannon testified that both men ended the sexual
encounter when she started crying. “Thus,” he argues,
“when [Shannon] did exhibit a nonverbal cue that she did
not consent, the men heeded that cue and stopped.”
[SEGMENT 10]
¶29 But even taking all the above arguments at face value, the
jury nonetheless heard sufficient evidence from which it could
reasonably infer that Raheem acted recklessly as to Shannon’s
nonconsent. As an initial matter, Friend testified that Raheem was
also present in the hallway when she initially knocked on the
locked door and tried to enter the storage closet. After Friend’s
efforts proved unsuccessful, Raheem knocked, and the door was
opened for him. From this testimony, the jury could reasonably
infer that Raheem was aware that Friend was concerned about
what was transpiring in the storage closet. But Raheem did not
hold the door open for Friend to also enter. Instead, he “slid
through the door” and one of the men locked it behind him.
Shannon testified that as soon as Raheem entered the closet, he
pushed her against Salazar, bent her over, pulled down her pants,
and began having vaginal sex with her, all while Salazar also
inserted his penis into her mouth. This bears none of the usual
hallmarks of consensual sex. There was no evidence presented
that there had been a prior agreement between the three to have
sex in the closet—to the contrary, Shannon testified that before
Raheem entered the closet, she told Salazar that his sexual
advances were unwelcome and that she wanted to leave. Nor did
Raheem ask any questions to ascertain whether Shannon would
consent to sexual intercourse. And even in the absence of any
indication from Shannon that she did not consent to the sexual
activity, there was also no evidence presented that Shannon
[CITATION] State v. Raheem
suggested to Raheem in any way that she would consent to such
action, if taken. For example, Shannon did not voluntarily bend
over; instead, Raheem pushed her against Salazar and caused her
to bend over. And Raheem—not Shannon—was the one to
remove her pants in the absence of any indication that this would
meet with Shannon’s approval.
¶30 In sum, the State presented evidence that Raheem entered
the storage closet after observing a concerned Friend
unsuccessfully try to do the same. When the door was opened for
him, he “slid” inside and did not permit Friend to enter. Once in
the closet, both men began engaging in sexual activity with
Shannon—which was initiated without any indication from
Shannon suggesting that she was a willing participant. Based on
the evidence of these circumstances, coupled with “reasonable
human experience,” [CITATION], a jury could reasonably infer that
Raheem was, at the very least, “aware of but consciously
disregard[ed] a substantial and unjustifiable risk” that Shannon
did not consent when he pushed her against Salazar, removed her
pants, and began having sexual intercourse with her, Utah Code
Ann. § 76-2-103(3) (LexisNexis 2017).
¶31 For the foregoing reasons, we reject Salazar’s challenge to
his conviction on sufficiency of the evidence grounds.
II. Ineffective Assistance of Counsel
¶32 Raheem argues that Counsel was constitutionally
ineffective for failing to investigate and call Girlfriend to testify in
his defense. He makes two arguments related to this claim of
ineffective assistance. First, he argues the merits of the claim.
Second, he seeks reversal “in the interests of fairness” based on
our recent reversal of his co-defendant Salazar’s conviction on
ineffective assistance grounds. See [CITATION]. We
hold that Raheem is not entitled to reversal on either ground.
20200720-CA
UT App 29 State v. Raheem
A. The Merits
¶33 To prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show both that (1) “counsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” [CITATION]. Here, because we hold that Raheem has failed to establish
that counsel performed deficiently, we need not also address
prejudice. See [CITATION] (“A defendant’s inability to establish either element defeats a
claim for ineffective assistance of counsel[.]”) (quotation
simplified), cert. denied, [CITATION].
¶34 To satisfy the deficient performance element, the
defendant must overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance,” [CITATION], and show that defense
counsel’s actions “fell below an objective standard of
reasonableness,” [CITATION]. Under this standard, it is insufficient
to merely show that counsel erred. See [CITATION]. Rather, “the ultimate question is always
whether, considering all the circumstances, counsel’s acts or
omissions were objectively unreasonable.” [CITATION].
¶35 “An attorney has a duty to conduct a reasonable
investigation into the facts of his client’s case and to make
reasonable decisions regarding the proper scope of that
investigation.” [CITATION]. “If
counsel does not adequately investigate the underlying facts of a
case, including the availability of prospective defense witnesses,
counsel’s performance cannot fall within the wide range of
reasonable professional assistance.” [CITATION] (quotation simplified). Defense counsel’s
“decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.” [CITATION]. “In evaluating the reasonableness of counsel’s
20200720-CA
UT App 29 State v. Raheem
investigation, we consider not only the quantum of evidence
already known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further.” [CITATION],
2014 UT 19, ¶ 37 (quotation simplified). To that end, “inquiry into
counsel’s conversations with the defendant may be critical to a
proper assessment of counsel’s investigation decisions.”
[CITATION], 466 U.S. at 691. See id. (“Counsel’s actions are usually
based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In
particular, what investigation decisions are reasonable depends
critically on such information.”).
¶36 Raheem first raised his claim that Counsel was ineffective
for not investigating or calling Girlfriend to testify in his motion
for a new trial. The motion was accompanied by affidavits from
himself and Girlfriend.
¶37 In her affidavit, Girlfriend averred that she dated Raheem
“on and off” from 2012 to 2013 and that she “spent a lot of time
helping [Raheem] run” the hookah lounge as well as a different
lounge he later ran. She stated that on the night of the assault,
Shannon came up to her and told her that she had given Raheem
“head,” which Girlfriend understood to mean that Shannon “had
performed oral sex on” Raheem. Girlfriend further averred that
Shannon “did not seem upset,” nor did she tell Girlfriend that
Raheem “forced her to perform any sex act.” Girlfriend stated
that, to the contrary, Shannon’s “tone of voice and expression
seemed bragging” as if she intended to make Girlfriend jealous.
Girlfriend later confronted Raheem about Shannon’s claim,
resulting in an argument.
¶38 Girlfriend stated that after that night, Shannon continued
to frequent the hookah lounge and “act friendly with” Raheem.
Girlfriend stated that on another night, she observed on the
security cameras Raheem and Shannon have a conversation and
hug. Girlfriend said she confronted Raheem about the hug and
another argument ensued. Girlfriend stated that Counsel never
contacted her but that if he had called her to testify at trial, she
20200720-CA
UT App 29 [CITATION]
would have testified as recounted above. She stated that when she
heard that [CITATION] “went to jail,” she contacted his brother, who
put her in touch with [CITATION]’s appellate counsel.
¶39 In his affidavit, [CITATION] averred that he told Counsel that
following the night in question, Shannon not only continued to
visit the hookah lounge, as well as the other lounge he later ran,
but that she also “continued to be friendly and flirtatious with”
him and “apologized . . . multiple times for ‘the drama’ and asked
if [they] could still be friends.” At the end of one of these
conversations, the two hugged. He also stated that shortly after
the episode giving rise to the charge in this case, Girlfriend
confronted him, saying that Shannon told her that Shannon “had
given [him] head.” [CITATION] stated that Counsel did not ask
whether anyone could corroborate these assertions, and he
claimed that if Counsel had asked, “I would have told him that”
Girlfriend “could confirm these things.” 10
¶40 Counsel’s investigation did, however, uncover pictures
taken in 2013—a few months after the sexual assault—of Shannon
at the hookah lounge with friends and a video taken at the 2016
party at which Shannon was within eight feet of [CITATION]. Counsel
intended to introduce the pictures and stills from the video at trial.
The State objected to the admission of the proposed exhibits
“based on relevancy, and also being more prejudicial than
probative.” Counsel responded that he would not use the stills if
Shannon acknowledged that she was at the 2016 party and that
she felt sufficiently comfortable to come within eight feet of
[CITATION]. But he did intend to introduce the stills if Shannon
denied being at the party or testified that she was “off in a corner
scared.” He also intended to introduce the 2013 pictures if
Shannon denied returning to the hookah lounge with friends and
having “a good time.” The court sustained the State’s objection
“for now,” stating, “We’ll see how she testifies.” This issue was
[SEGMENT 11]
10. [CITATION] does not explain why he did not just volunteer this
information considering how important he apparently thought it
was.
20200720-CA
UT App 29 State v. Raheem
not revisited later at trial because Shannon did, in fact,
acknowledge visiting the hookah lounge with friends in 2013 and
approaching within eight feet of Raheem at the 2016 party.
¶41 Raheem argues that Counsel’s investigation was deficient
because he did not follow up when Raheem told him of Shannon’s
behavior toward him after the night of the assault. Raheem asserts
that if Counsel had done so, he “would have discovered that there
was in fact a witness who could corroborate [his] story that
Shannon had bragged about her sexual encounter with [him] to a
third party.” He argues that if Counsel had “investigated and
presented [Girlfriend’s] testimony, he would have been able to
further cast doubt on [Shannon’s] credibility and refute
statements she made about her post-incident conduct.”
¶42 We first emphasize the scope of our inquiry. Without
question, the best practice would have been for Counsel to follow
up by asking whether anyone could corroborate Raheem’s
assertions. But, as stated above, under a claim of ineffective
assistance of counsel, “the ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” [CITATION]. See [CITATION]
(stating that the deficient performance element “requires showing
that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment”); [CITATION] (“Even
if an omission is inadvertent and not due to a purposeful strategy,
relief is not automatic.”) (quotation simplified). Under this
standard, we hold that Counsel’s omission was not objectively
unreasonable under the circumstances of this case.
¶43 As discussed above, Counsel’s investigation into
Shannon’s post-assault behavior produced photographic
evidence both that Shannon returned to the hookah lounge a
few months after the assault and that she felt comfortable
enough to approach within eight feet of Raheem at a party
some years later. Although Shannon acknowledged at trial
20200720-CA
UT App 29 State v. Raheem
that she did these things, thus obviating the need for Counsel to
seek admission of the photographic evidence, Counsel
nonetheless argued during closing argument that this
post-assault conduct conflicted with her claim that she had
been sexually assaulted that night. Additionally, Counsel
called Raheem’s brother and friend to counter Shannon’s
testimony, as well as that of other State witnesses, regarding her
behavior at the hookah lounge immediately after she exited the
storage closet.
¶44 Having uncovered the photographic evidence and the
two defense witnesses, coupled with Raheem’s silence during the
conversation as to Girlfriend’s ability to corroborate his account of
his post-assault interactions with Shannon, it was not
unreasonable for Counsel to believe that he had
sufficiently investigated Shannon’s post-assault conduct. Indeed,
Counsel’s investigation was sufficient to prompt Raheem to
discuss Shannon’s continued “friendly and flirtatious” behavior,
as well as the hug after a conversation in which Shannon
apologized for “the drama.” And the follow-up question that
Raheem faults Counsel for not asking only sought additional
information that a person could reasonably be expected to
volunteer without further prompting. Thus, after Raheem
divulged the information to which Girlfriend would have
testified, it was not unreasonable for Counsel to presume that
Raheem would also mention that a witness to such events existed,
if one did. 11
¶45 For these reasons, under the circumstances of this case, we
cannot say that Counsel’s failure to ask the follow-up question
11. Although we cannot be sure on this record whether Raheem
was the one to direct Counsel’s attention to his brother and friend
as witnesses to Shannon’s conduct immediately after exiting the
storage closet, we note that if he was, it would be yet another
reason that Counsel’s not asking a follow-up question regarding
Shannon’s alleged later conduct was not unreasonable.
[CITATION] State v. Raheem
about other potential witnesses was objectively unreasonable.
Raheem’s claim of ineffective assistance therefore fails. 12
B. Interests of Fairness
¶46 Alternatively, Raheem argues that in light of our recent
reversal of co-defendant Salazar’s conviction on ineffective
assistance grounds, see [CITATION], we should
likewise reverse his conviction and grant him a new trial “in the
interests of fairness.” 13 But because Raheem does not ground this
claim on any constitutional provision, statute, rule, or caselaw, we
have no basis for reversal and this argument necessarily fails.
¶47 In the other appeal, Salazar argued, in relevant part, that
his trial counsel was ineffective for failing to introduce at trial
certain Voxer 14 messages Shannon sent Salazar following the
12. Because we reject Raheem’s claim that Counsel was ineffective
for failing to further investigate, we need not address his
argument that Counsel was also ineffective for failing to call
Girlfriend to testify at trial. Because Counsel was unaware of
Girlfriend’s existence at the time of trial, he could not have been
expected to call her to testify.
13. Because we reversed Salazar’s conviction after Raheem
submitted his principal brief, Raheem first raised this issue in his
reply brief, and we subsequently authorized surreply briefing on
this question.
14. “Voxer is an app that allows users to exchange voice, text,
photo, and video messages. Its primary service is to deliver voice
live—so it can be listened to immediately while also
simultaneously recording the message—so it can be listened to
later.” [CITATION]
20200720-CA
UT App 29 State v. Raheem
assault. 15 See [CITATION]. At the preliminary hearing, apart
from “a few messages” she received “from Salazar in the days
immediately after the incident,” Shannon “testified that she did
not ‘hang out with him after the assault’ and ‘never had any direct
contact with Mr. Salazar.’” [CITATION] (quotation simplified). At trial,
Shannon “stated that she did not recall having contact or
socializing with Salazar after the incident but that she ‘was told
that I reported something before to the cops, but I don’t
remember.’” [CITATION]. She also stated that “it was ‘correct’ that ‘at
the preliminary hearing under oath she said that she would never
have had contact with Salazar after the fact.’” [CITATION] (quotation
simplified). Salazar’s trial counsel did not present the Voxer
messages at trial to undermine Shannon’s credibility.
¶48 Salazar argued that his trial counsel was ineffective
because the Voxer “messages would have showed that Shannon
lied when she repeatedly and unequivocally testified at the
preliminary hearing that she never again contacted Salazar.” [CITATION]
.
15. Salazar also argued that his trial counsel was ineffective for
failing to investigate the Voxer messages. See [CITATION]. We
declined to address this issue, stating that even if the State was
correct that we should presume that Salazar’s counsel
investigated the Voxer messages, “it does not change our
conclusion that [Salazar’s counsel] was ineffective for not using
them at trial.” [CITATION]. We also noted that based on the trial court’s
statement that evidence existed that Salazar’s counsel possessed
the messages at the time of trial but elected not to use them, “we
do not conclude that [Salazar’s counsel] failed to investigate the
existence of the messages, because he actually had the messages,
even though it is suggested by Salazar that [his counsel] did not
have the technical expertise to access and review them.” [CITATION]. Our
analysis thus focused on counsel’s decision not to use the
messages at trial. See [CITATION].
Here, conversely, Girlfriend’s affidavit stated that when she
did come forward, Raheem’s brother put her in contact with
appellate counsel—thus indicating that Raheem had already been
convicted at that point.
20200720-CA
UT App 29 State v. Raheem
¶ 35 (quotation simplified). We held that [CITATION]’s trial counsel
performed deficiently in not using the messages at trial because
“with Shannon as the State’s lead and most critical witness, any
reasonable counsel would have presented the Voxer messages to
undermine her credibility.” [CITATION]. See [CITATION] (stating that it was
“unreasonable for [CITATION]’s counsel not to use the Voxer
messages to undercut Shannon’s already problematic
credibility”). We further held that [CITATION] was prejudiced, stating
that based on “Shannon’s problematic testimony and the lack of
necessarily inculpatory physical evidence, the Voxer messages
would have affected the overall evidentiary picture, and the jury
may well have found Shannon less credible.” [CITATION] (quotation
simplified). See infra note 19. Accordingly, we reversed [CITATION]’s
conviction for aggravated sexual assault on ineffective assistance
of counsel grounds and remanded his case for a new trial. See
[CITATION].
[SEGMENT 12]
¶49 Raheem argues, “[T]his Court should recognize that any
change in [CITATION]’s trial would have resulted in a different
outcome for [him]. The two men were charged with the same
crime and had a single trial. If [CITATION] did not receive a fair
trial, [Raheem] was also impacted by that lack.” 16 But Raheem’s
argument in briefing is limited to citing a handful of Utah cases
referencing “principles of fairness” in other contexts that provide
no basis for reversal in this case.
¶50 During oral argument, Raheem pointed to our Supreme
Court’s recent decision in [CITATION], in
16. Raheem primarily argued that reversal was warranted under
the law of the case doctrine, contending that “[t]his Court’s
reasoning in [CITATION] explicitly demonstrates that [Counsel] acted
deficiently when he failed to introduce evidence which undercut
Shannon’s credibility and that [he] was prejudiced by [Counsel’s]
deficiencies.” But Raheem conceded during oral argument that
because “different evidence [is] involved” here than was at issue
in that appeal, [CITATION] has more of a persuasive effect on the
current case “than strict law of the case.”
20200720-CA
UT App 29 State v. Raheem
which the Court held, as a matter of first impression, that a mother
whose parental rights were terminated could participate in a
remand the father had secured on appeal. See id. ¶ 34. In that case,
each parent raised separate claims of error in the joint appeal, see
id. ¶ 8, but only the father’s claims of error proved successful, see
id. ¶ 27. Although the mother had not made the same winning
arguments, see id. ¶ 29, the Court held that “[t]he rights and
interests of the parents and the children are not only substantial
but intertwined” in the parental termination proceeding, and the
juvenile court’s missteps that the father had identified on appeal
“may bear significant consequences not just for the parents but for
their children,” id. ¶ 33. Accordingly, the Court held “that the
mother’s briefing decisions should not foreclose her from
participating in the case on remand” and that “[b]oth parents’
legal rights should be on the table.” Id. ¶ 34.
¶51 [CITATION]’s narrow holding is inapplicable to the current
case. As the Court’s analysis makes clear, the unique context of
parental rights termination in which the primary focus is the best
interest of the child played a crucial role in that case. Here, no such
third-party interest is at stake. Additionally, it was not the error
of the court that warranted reversal in [CITATION] but the ineffective
assistance of [CITATION]’s trial counsel—and not Raheem’s. 17 For
17. To be sure, if the trial court, the State, or some other actor had
made an error affecting the rights of both co-defendants and
resulting in an unfair trial, Raheem may potentially have been
entitled to raise that claim of error in his own appeal. In such a
situation, the law of the case doctrine may well apply to ensure
the same result in both appeals. See [CITATION], 969 P.2d 1053,
1054 (Utah Ct. App. 1998) (holding that because the appellant’s
co-defendant received reversal on the “identical facts and legal
question” the appellant raised, the law of the case doctrine
applied, likewise entitling the appellant to a reversal). But here, as
Raheem acknowledged during oral argument, see supra note 16,
although there are some similarities, the underlying facts and
claim of ineffective assistance he raises are distinct from the facts
and claim of ineffective assistance that merited reversal in [CITATION].
20200720-CA
UT App 29 State v. Raheem
these reasons, [CITATION] does not mandate reversal of Raheem’s
conviction.
¶52 In sum, because Raheem’s fairness argument has no basis
in law, it necessarily fails. The reversal of [CITATION]’s conviction in a
prior appeal has no binding effect on Raheem’s case.
III. Improper Statements and Hearsay
¶53 Raheem argues that the trial court erred in denying his
motion for a new trial in which he claimed that improper
statements by the prosecutors and inadmissible hearsay
statements by the State’s witnesses deprived him of a fair trial. We
first recount each of the challenged statements and then proceed
to address the merits of Raheem’s argument.
A. Additional Facts
¶54 First, during jury selection, the two prosecutors in the case
introduced themselves to the potential jurors as members of a
“special victims team” and a “special victims unit.” Shortly
afterwards, during a sidebar conversation, the defense objected to
the prosecutors’ use of the word “victim” and asked the trial court
to either “[c]raft some sort of limiting instruction, or grant . . . a
mistrial.” The court told the jury that the prosecutors’ “use of the
word victim is not proper” because “[i]t is inconsistent with the
presumption of innocence” and instructed the jury “not to
consider the use of that word.”
¶55 Second, during opening statements, one of the prosecutors
told the jury that Raheem ran the hookah lounge “and it had
teenage girls, 18-years-old, who would work there without pay,
but would receive hookah or tobacco instead of being paid.” The
defense objected to this statement, arguing that the defense had
no prior notice of this “other acts” evidence. See [CITATION]. The trial court then instructed the jury “to disregard
references to any sort of issue about whether there were
individuals smoking underage in this establishment, or whether
20200720-CA
UT App 29 State v. Raheem
there were any sort of labor violations with respect to individuals
working in this establishment without pay.”
¶56 Third, at the beginning of Coworker’s testimony, the State
asked, “What’s your understanding of why you’re here to
testify?” Coworker responded, “I’m here to testify as a witness
against two individuals that had raped [Shannon].” The defense
objected and moved for a mistrial, arguing the comment
impermissibly bolstered Shannon’s credibility and was
prejudicial. The court asked whether Coworker’s expected
testimony regarding Shannon’s excited utterances after she exited
the storage closet would mitigate the prejudice. See [CITATION] R. 803(2)
(exempting from the rule against hearsay “[a] statement relating
to a startling event or condition, made while the declarant was
under the stress of excitement that it caused”). The defense
recognized that the testimony may “correct the mistake” but
argued that the cumulative effect of the comment and the
prosecutors’ prior statements that they were members of a
“special victims team” warranted a mistrial. The court took the
motion for mistrial under advisement, but in the interim, it
instructed the jury to disregard the comment because “the
question of whether or not rape occurred in this case is the
ultimate issue in the case that you have to decide as the jury” and
Coworker’s “comment on it is not proper for you to consider.”
The court then asked whether the members of the jury understood
the instruction and whether they believed they could follow it.
The jurors indicated in the affirmative. The court then asked any
jurors who “doubt[] their ability to follow that instruction and
disregard” Coworker’s opinion on the matter to raise a hand.
None of the jurors raised their hand.
¶57 Fourth, the detective who convinced Shannon to go to the
hospital testified that he had been dispatched “for a possible
rape.” The defense lodged an objection, which the court sustained
and instructed the jury to disregard the statement “for the same
reason that I gave you the instruction before.” Namely, “[i]t’s the
ultimate issue in the case about whether or not a rape occurred.
That’s for you to decide, not for this witness or any other specific
20200720-CA
UT App 29 State v. Raheem
witness to say.” The court again asked the jurors whether they
could “all follow that instruction to disregard [the detective’s]
answer.” All the jurors again indicated in the affirmative. A little
later, the detective testified that when he arrived at the hospital,
the examining nurse and a “victims advocate” were already there.
The defense did not object to the use of the word “victim” at this
time.
¶58 Fifth, during cross-examination of Raheem’s friend, in the
context of asking about who had subpoenaed him, the State
asked, “But who [are] you testifying for?” The defense objected.
The court sustained the objection and told the jury, “The witness
was subpoenaed to testify. He’s not testifying for anyone or
against anyone. He’s just providing his testimony. Does
everybody understand that?” The jurors again responded in the
affirmative.
[SEGMENT 13]
¶59 During a recess, the court heard further argument on the
mistrial motion. 18 By that point, both Coworker and Friend had
testified as to Shannon’s excited utterance when she exited the
storage closet that she had just been raped. See [CITATION]. The
defense nonetheless argued that Coworker’s comment and the
testimony about Shannon’s excited utterances “are two different
things” because “[i]n the one case she’s offering it and asserting it
as a fact, in the other she’s talking about things . . . that were told
to her.” The defense also argued that the detective’s mention of a
“victims advocate,” the State’s use of the word “victim” during
introductions, and Coworker’s “rape” comment all “cumulatively
add[] up to a mistrial.”
¶60 In response, the State asserted that “no one has called
[Shannon] a victim,” rather the prosecutors’ and the detective’s
use of the word “victim” was in reference to job titles and
descriptions. Indeed, the State pointed out that even Counsel at
18. At this point, because Raheem’s friend had not yet been called
to the stand, the objected-to interaction in which the State asked
him who he was testifying for was not discussed.
20200720-CA
UT App 29 State v. Raheem
one point referenced a “victim advocate” during a
cross-examination. Concerning Coworker’s statement, the State
argued that it was not solicited and that any potential prejudice
was “cured” by admissible testimony of Shannon’s excited
utterance when she exited the storage closet that she had just been
raped and by the court’s curative instruction. Additionally, the
State argued that the detective did not indicate that a rape had
occurred because he said “possible rape.”
¶61 The trial court denied the motion for mistrial, largely
agreeing with the State’s arguments. The court stated that it held
off on ruling on the motion when first lodged at the onset of
Coworker’s testimony because it wanted “to see how the
testimony unfolded.” The court acknowledged that the State’s
question that prompted Coworker’s objectionable comment “was
probably not the best question for the prosecution to ask of a lay
witness” and that the comment was “potentially inflammatory.”
But the court pointed out that the jury heard admissible evidence
of Shannon’s excited utterance that she had been raped.
Additionally, the jury received a curative instruction, and the
court “carefully observed the jurors” while giving the instruction
and was convinced that they understood the instruction. It
therefore held that any prejudice from Coworker’s comment was
mitigated. The court further held that the detective’s reference to
a “potential rape” was not prejudicial because it was no secret that
the case was “about an alleged rape.” And, in any event, the court
stated that it “gave careful curative instructions that” it
“believe[d] the jury understood.”
¶62 Concerning the use of the word “victim,” the court first
noted that although the State was correct that no one had called
Shannon a victim and that the term was used in the context of
discussing job titles, this was nonetheless “problematic when
they’re injected into a proceeding.” See [CITATION] (“[U]se of the term ‘victim’ usually will
be inappropriate when the defendant defends the case on grounds
that no crime was committed and, concomitantly, that there is no
victim in the case at all.”). Cf. [CITATION]
20200720-CA
UT App 29 State v. Raheem
449 P.3d 39 (“We . . . recognize the gravity of referring to witnesses
as victims during a trial.”). But the court held that in light of the
curative instruction it gave during jury selection, which it
believed the jury understood, the use of the word “victim” was
not prejudicial. See [CITATION] (stating that
curative instructions are “a tool that can sometimes, depending
upon the context in which the statements were made, mitigate any
prejudice caused by the use of the term ‘victim’”) (quotation
simplified). And although the defense did not object immediately
after the detective referenced a “victims advocate,” the court
stated it believed that the jury understood the prior curative
instruction likewise applied to that statement.
¶63 Raheem renewed this argument in his motion for a new
trial, in which, in addition to the improper statements he raised in
his motion for mistrial, he argued that a new trial was warranted
due to the State’s discussion of “other acts” evidence during
opening statements and due to the State’s improper question to
Raheem’s friend during cross-examination. The court denied the
motion. Concerning the prosecutors’ reference to a “special
victims team” and a “special victims unit” during jury selection
and to other acts evidence during opening statements, the court
explained, “The court gave curative jury instructions for each of
these statements, and [it] found the jury was sophisticated,
understood the court’s instructions, and indicated a willingness
to abide by the instructions. Therefore, any error was cured at
trial.” Similarly, regarding the State’s improper question to
Raheem’s friend, the court stated that it “gave a curative
instruction with regard to the State’s implication [the friend] was
testifying for a particular party, and any error with regard to him
was rectified” and “was not prejudicial.” Lastly, the court stated
that “with regard to references to ‘victim’ and ‘rape,’ throughout
the trial, there were very few and the court gave curative
instructions to the jury instructing it to disregard the references.
The jury understood the instructions and agreed to disregard the
statements.”
20200720-CA
UT App 29 State v. Raheem
B. The Merits
¶64 Raheem argues that “the cumulative effect of the improper
testimony should undermine the court’s confidence in the
outcome” because “the curative instructions were not adequate to
mitigate the cumulative prejudice of the many errors.”
Referencing Shannon’s “credibility issues,” 19 he asserts that “the
jury was left with much it was instructed to disregard and little it
could legitimately rely on to convict.” He also contends that “the
inadmissible evidence served to unjustifiably bolster the State’s
case and credibility of [Shannon’s] accusation.”
¶65 “Because of the advantaged position of the trial judge to
determine the impact of events occurring in the courtroom on the
total proceedings, an appellate court will find an abuse of
discretion only when the trial court is plainly wrong in that the
incident so likely influenced the jury that the defendant cannot be
said to have had a fair trial.” [CITATION] Here, we cannot say that the
trial court abused its discretion in denying the motion for a new
trial.
¶66 As Raheem points out, in holding that the errors were not
prejudicial, the court relied heavily on the curative instructions it
issued following each objection to the improper statements. “We
normally presume that a jury will follow an instruction to
disregard inadmissible evidence inadvertently presented to it,
unless there is an overwhelming probability that the jury will be
19. In [CITATION], cert. denied,
[CITATION], we held that “the State’s prospects for
a conviction primarily rested on [Shannon’s] testimony,” id. ¶ 58,
and that her credibility was “problematic” due to “her inability to
remember most of the specifics of the assault without the
prosecutor’s direction and her changing story about the soda,” id.
¶ 45. See id. ¶ 44 (detailing Shannon’s memory issues and
inconsistent accounts regarding the allegedly spiked soda she
said she consumed).
20200720-CA
UT App 29 State v. Raheem
unable to follow the court’s instructions, and a strong likelihood
that the effect of the evidence would be devastating to the
defendant.” [CITATION] (quotation simplified). See [CITATION] (“Curative instructions are ordinarily presumed on
appeal to be effective, absent a substantial and prejudicial
underlying error or irregularity.”) (quotation simplified), cert.
denied, [CITATION]. But see [CITATION] (“This is not to say that curative instructions are a ‘cure-all.’ Some
errors may be too prejudicial for curative instructions to mitigate
their effect, and a new trial may be the only proper remedy.”).
¶67 With the exception of the detective’s single mention of the
“victims advocate,” the court “gave a forceful curative instruction
at the time [each] error occurred.” See [CITATION]. The
court not only gave the instruction, it explained why the
instruction was being given and asked the jurors to indicate
whether they understood the instruction and were able to abide
by it. Concerning the “victims advocate” reference, the jury had
already received the relevant curative instruction only a few
minutes earlier when the same detective stated “potential rape,”
as well as when the State referenced a “special victims team”
during jury selection. There was also “nothing to indicate that the
jury was unable to follow the court’s instruction to disregard the
inadmissible evidence that had been inadvertently presented to
it.” See id. To the contrary, the court “found the jury was
sophisticated, understood the court’s instructions, and indicated
a willingness to abide by the instructions.” See [CITATION] (acknowledging “the advantaged position of the trial
judge to determine the impact of events occurring in the
courtroom on the total proceedings”) (quotation simplified).
[SEGMENT 14]
¶68 Furthermore, we are not convinced that the cumulative
effect of the improper statements was so “substantial and
prejudicial” as to undermine the effectiveness of the curative
instructions. [CITATION] (quotation simplified).
As the trial court noted, the potential prejudice of most of the
statements was significantly decreased by other factors. Most
20200720-CA
UT App 29 State v. Raheem
notably, the prejudice of Coworker’s improper statement was
significantly decreased when she and two other witnesses
provided admissible testimony regarding Shannon’s allegations
of rape immediately after she exited the storage closet.
Additionally, the prejudicial impact of the detective’s reference to
a “potential rape” is questionable, given the use of the qualifying
word “potential” and the jury’s general understanding that it was
tasked with determining whether Raheem and Salazar sexually
assaulted Shannon in the storage closet. Such an understanding
likewise minimized the prejudicial impact of the State’s and the
detective’s references to “victim,” as they never directly called
Shannon a “victim” but rather were using the word when
providing titles and descriptions of their jobs.
¶69 Additionally, the State’s improper comment during
opening statement about the potential underage smoking and
labor violations at the hookah lounge was rather mild in
comparison to the graphic allegations the jury later heard. See
[CITATION] (stating that
the victim’s improper statement that the “defendant was shot
might have stood out more prominently in other trials” but “in
the current case the highly graphic and disturbing nature of the
evidence presented to the jury over the course of six days . . .
overshadowed” the improper statement), cert. denied, [CITATION]. Thus, even considered cumulatively and in light
of issues with Shannon’s credibility, we cannot say that the
prejudicial effect of the errors was so great as to rebut the
presumption that the jury followed the trial court’s curative
instructions.
¶70 For these reasons, the trial court did not abuse its discretion
when it denied the motion for a new trial.
CONCLUSION
¶71 The State presented sufficient evidence at trial to prove that
Raheem acted, at the very least, recklessly as to Shannon’s
20200720-CA
UT App 29 State v. Raheem
nonconsent. Under the circumstances of this case, Counsel was
not ineffective for not asking a follow-up question regarding
whether anyone could corroborate Raheem’s account of
Shannon’s post-assault behavior toward him. Lastly, the trial
court did not abuse its discretion when it denied the motion for a
new trial. 20
¶72 Affirmed.
20. Raheem also argues that the cumulative effect of the three
errors he raises on appeal was prejudicial. “A reviewing court will
reverse a jury verdict under the cumulative error doctrine only if
the cumulative effect of the several errors undermines confidence
that a fair trial was had.” [CITATION] (quotation simplified). Because there are no errors to
accumulate here, this argument necessarily fails. See [CITATION] (stating that
the cumulative error “doctrine will not be applied when claims
are found on appeal to not constitute error, or the errors are found
to be so minor as to result in no harm”) (quotation simplified);
[CITATION] (“Because
we conclude that there are no errors to accumulate here, the
cumulative error doctrine is inapplicable in this case.”) (quotation
simplified).
20200720-CA
UT App 29
2024 UT App 16
THE UTAH COURT OF APPEALS
JOSEPH EARL LAMB,
Appellee,
v.
SONYA ELIZABETH LAMB,
Appellant.
Opinion
No. 20210787-CA
Filed February 8, 2024
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 174904728
Mary Deiss Brown, Attorney for Appellant
Gregory G. Skordas, Gabriela Mena, and Allison R.
Librett, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.
MORTENSEN, Judge:
¶1 Joseph Earl and Sonya Elizabeth Lamb’s divorce was
decided at a bench trial. [CITATION] As relevant here, Joseph was awarded
custody of their children, ownership of a family business, and half
the equity of the marital home. Sonya now challenges the court’s
custody determination and the award of the business. She also
challenges the manner in which the court determined the equity
in the marital home. We affirm the district court’s rulings in all
aspects.
[CITATION] Because the parties share a surname, we refer to them by their
given names. [CITATION]
BACKGROUND 2
¶2 Joseph and Sonya married in 2007 and separated in July
2017. We address separately each of the district court’s
determinations with which Sonya takes issue.
The Custody of the Children
¶3 Joseph and Sonya have three children, all of whom
were minors when they divorced in August 2021. In
November 2017, at a hearing for temporary orders, Sonya’s
counsel told the court that Sonya had been the children’s primary
caregiver “until recently.” Sonya also admitted that she was
arrested in July 2017 and was facing charges for possession and
use of drugs, but she asserted that she had “taken responsibility,”
had “stopped using drugs,” was “sober and more than capable of
caring for the children and continuing on as their primary
caregiver,” and had “been attending Narcotics Anonymous and
Al-Anon meetings.” Sonya asserted that Joseph had a “serious
drug addiction problem.” Joseph claimed that Sonya had
vacated the marital home shortly before her arrest, and he
revealed that he obtained a protective order against her. The court
acknowledged the allegations both sides made against the
other but noted that Joseph currently had the children in his care
and was living in the marital home. The court then determined
that Joseph should maintain “custody of the children on a
temporary basis.”
2. As addressed below, neither party’s briefs included sufficient
citations to the record. This shortcoming has necessitated us
combing the record to establish some semblance of a background,
something we are not obligated to do. See [CITATION] (explaining the parties’ duty to cite
the record in appellate briefs), cert. denied, [CITATION]. Accordingly, our recitation of the facts is necessarily
minimal as we limit it to what is essential to resolve the issues on
appeal.
20210787-CA
UT App 16 [CITATION]
¶4 Apparently, the children remained in the temporary
custody of Joseph until the parties’ divorce trial, where the court
received the testimony of a “reunification therapist” (Family
Therapist), who had been hired by the parties after the custody
evaluator had been “unable to perform an evaluation due to the
children spending less than minimum time” with Sonya.
¶5 Based on the testimony of Family Therapist, which we
recount when relevant in our analysis below, the court found that
“unification” between Sonya and the two older children was
“lacking” because of acrimonious relationships. The court noted
that Family Therapist had testified that progress in reunification
therapy would “influence what possible custody” Sonya might
have in the future relative to the older children. The court
determined that it was “in the best interest of the children that
reunification therapy” continue to allow Sonya the opportunity
“to reunify her relationship with the children.”
¶6 Accordingly, the court found that it was in the children’s
best interest that Joseph be “awarded sole physical custody and
final decision making authority,” with both parties being
awarded joint legal custody. With regard to the youngest child,
the court awarded supervised parent-time to Sonya one night a
week. The court awarded Sonya no parent-time with the older
two children. The court noted that supervised parent-time for
Sonya would “be flexible” and might “increase after the current
reunification issues” and Sonya’s “medical issues” were
addressed. The court also stated that Sonya’s “non-use of
cannabis” needed to be verified because marijuana use was “a
contributing factor” that brought on her mental health episodes.
The Business
¶7 During their union, the parties were financially supported,
at least in part, by a business that distributed supplies to gas
stations. During the divorce proceedings, Joseph maintained that
he was in the process of purchasing the business from his father
but that he did not have the money to pay for it. Joseph explained
[CITATION] Lamb v. [CITATION]
that he drew a salary for his work with the business. In contrast,
Sonya maintained that she and Joseph agreed to buy the business
in 2010 and that they completed paying off the business in 2016.
Sonya claimed that she and Joseph signed a document “to take
over the business” but that she did “not have the document.”
Sonya did produce a different document that explicitly stated the
business was being sold only to Joseph.
[SEGMENT 15]
¶8 The district court awarded the business to Joseph, along
with all its debts and obligations. In addition, the court,
apparently recognizing that the business was possibly still owned
by Joseph’s father, ordered that any money Joseph borrowed
against the marital home to purchase the business would “not be
used to reduce the total equity in the home” so as to reduce
Sonya’s share of the home’s value. In making this award to
Joseph, the court was clear that it was basing its decision “on the
testimony” provided by Joseph.
The Marital Home
¶9 Based on a Zillow estimate 3 provided by Sonya, the court
determined the value of the marital home to be $998,659, but the
equity in the home was reduced by mortgages and liens on the
property. Joseph testified that three mortgages, totaling $402,000,
3. Neither party produced an appraisal of the home or an
appraisal witness at trial, leading the court to ask the parties,
“Does anybody have any valuation [of the home] at all?” Sonya’s
counsel answered, “Well, we could do it [with] Zillow.” At this
point, while in court, Sonya’s counsel looked up the value and
reported, “According to Zillow as of today, the estimated value is
$998,659.” No objection was lodged at trial to the court receiving
this information. “Zillow is a commercial website that provides,
among other things, an estimated market value for many
residential properties.” [CITATION]
20210787-CA
UT App 16 [CITATION]
were on the property. 4 And the home was additionally
encumbered by eleven liens. Two of these liens, totaling $2,414,
were attributed to Sonya and Joseph. The remaining nine, totaling
$256,521, were tax liens and civil judgments incurred by the
previous owner of the home. 5
¶10 The court received evidence that when Joseph and Sonya
purchased the home in November 2009, it was subject to some
existing debt. Joseph testified as follows:
Counsel: “Was there anything particular about that
purchase [of the home]?”
Joseph: “We didn’t have the credit or the means to get into
a home at the time, so my brother is a real estate agent
and he’s good friends with [the previous owner] and
said, ‘Hey, this house is available. If you like it, I can
probably get you into it.’ And so we took him up on
that and (inaudible) that we had to take on (inaudible).”
Counsel: “So there were other debts on that house when
you purchased it?”
Joseph: “Yes. . . . . I didn’t know about all of them at the time,
but yes.”
Counsel: “What are those debts?”
4. This number reflected the amount owing at the time of
separation. At the bench trial, Joseph testified that the amount was
currently about $298,000.
5. Joseph’s counsel provided a LexisNexis report as evidence of
the liens on the home. This report was admitted as evidence with
no objection.
20210787-CA
UT App 16 [CITATION]
Joseph: “There’s a lot of tax liens from [the previous owner]
throughout the years. There’s a couple of (inaudible)
from Sonya and I, medical bills that weren’t paid. . . .”
Counsel: “And have you paid off the tax liens? The liens on
the house?”
Joseph: “No.”
Thus, in a somewhat unusual arrangement, the parties appear to
have purchased the home subject to certain liabilities, even if they
did not know the precise extent of those liabilities. Presumably,
these liabilities would have been offset by a reduction in the
purchase price, making the home more affordable.
¶11 Adding the mortgages and liens together for an amount of
$660,935, the court determined that equity in the home was
$337,724. The court ordered Joseph to pay Sonya $168,862 as her
share of that equity.
¶12 Sonya appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 Sonya identifies multiple ways in which she believes the
district court erred. But “[f]or the sake of brevity,” we
“consolidate these grounds” and “set out in the opinion only so
much . . . as we deem necessary to a decision of the questions
involved herein.” [CITATION]
¶14 Sonya first contends that the district court abused its
discretion in making custody and parent-time decisions because
it lacked sufficient information to make those decisions. “We
review custody determinations deferentially, and so long as the
district court’s discretion is exercised within the confines of the
20210787-CA
UT App 16 [CITATION]
legal standards we have set, and the facts and reasons for the
decision are set forth fully in appropriate findings and
conclusions, we will not disturb the resulting award.” [CITATION].
¶15 Sonya next contends that the district court’s findings were
“entirely inadequate to explain” its reasoning for awarding
ownership of the business to Joseph. “We review the legal
sufficiency of factual findings—that is, whether the trial court’s
factual findings are sufficient to support its legal conclusions—
under a correction-of-error standard, according no particular
deference to the trial court.” [CITATION] (cleaned up).
¶16 Lastly, Sonya argues that the district court’s “procedures
and decisions regarding the division of equity in the marital home
were illogical and manifestly unjust.” “Determining and
assigning values to marital property is a matter for the trial court,
and an appellate court will not disturb those determinations
absent a showing of clear abuse of discretion.” [CITATION] (cleaned up), cert. denied, [CITATION].
ANALYSIS
I. A Note on Briefing
¶17 Sonya’s briefing is plagued by significant deficiencies and
does not comply with the Utah Rules of Appellate Procedure for
appropriate briefing. First, excluding the cases cited for the
standards of review, Sonya cites only a single case in her opening
brief, and she does so in a perfunctory fashion—making only a
shallow attempt to explain its relevance to the issues. Sonya
continues this trend in her reply brief, where she cites no cases at
all. In this regard, she falls far short of appellate expectations. “A
party may not simply point toward a pile of sand and expect the
court to build a castle. In both district and appellate courts, the
development of an argument is a party’s responsibility, not a
20210787-CA
UT App 16 Lamb v. Lamb
judicial duty.” [CITATION];
see also Utah R. App. P. 24(a)(8) (“The argument must explain,
with reasoned analysis supported by citations to legal authority
and the record, why the party should prevail on appeal.”); id. R.
24(b)(3).
¶18 Second, in her statement of the case, Sonya fails to include
a single citation to the record. This is in contravention of our
clearly stated rule. See Utah R. App. P. 24(a)(6) (“The statement of
the case must include, with citations to the record: (A) the facts of
the case, to the extent necessary to understand the issues
presented for review; (B) the procedural history of the case, to the
extent necessary to understand the issues presented for review;
and (C) the disposition in the court or agency whose judgment or
order is under review.” (emphasis added)). We note that Sonya
somewhat more adequately cites the record in the argument
section of her brief, but that is not what the Utah Rules of
Appellate Procedure require, and by ignoring the rules to suit her
briefing preferences, she does little to bolster judicial efficiency. 6
¶19 We point out these deficiencies not to ridicule, disparage,
or shame counsel, but to provide warning that future briefing of
this nature will likely be deemed inadequate and that any
arguments on the merits may not be substantively considered by
this court. This court receives hundreds of briefs each year. They
vary in quality and in their adherence to the rules. We recognize
that members of the bar have a lot on their plates and occasionally
miss a typo or overlook a citation. But wholesale disregard of
briefing rules is quite beyond the pale and can have unwelcome
6. Nor did Joseph’s counsel provide a single citation to the record
in his brief. This shortcoming is most unhelpful. While an appellee
is not required to file a brief, see, e.g., [CITATION], we observe that if
a brief is filed, it would behoove counsel to provide record
citations. After all, and at the risk of stating the obvious, record
citations are required because in their absence it’s difficult, and at
times impossible, to figure out what the parties are referencing.
20210787-CA
UT App 16 Lamb v. Lamb
[SEGMENT 16]
consequences for attorneys (and their clients) who choose this
risky path. See [CITATION] (“We . . . retain discretion to not address an
argument that is inadequately briefed.” (cleaned up)); accord [CITATION]. And we hasten to point out that
the risk of ignoring briefing requirements should come as no
surprise to any attorney in Utah owing to our multiple references
to the issue over the years. See [CITATION] (stating that the merits of a dispute need not be
reached if an appellant “has not supported the facts set forth in [a]
brief with citations to the record” as required by rule 24(a)(6) of
the Utah Rules of Appellate Procedure); [CITATION] (“We have routinely refused to
consider arguments which do not include a statement of the facts
properly supported by citations to the record.”); [CITATION] (“If a party
fails to make a concise statement of the facts and citation of the
pages in the record where those facts are supported, the court will
assume the correctness of the judgment below.”). That we have
exercised our discretion to address the merits of the issues on
appeal here should not be taken as an imprimatur sanctioning
inadequate briefing but as a conduit to raise awareness of the risk
of ignoring the rules.
¶20 We take this occasion to recall the advice offered by our
supreme court several decades ago:
If the questions involved in a case are of sufficient
importance to justify asking this court to decide
them, they are worthy of the careful consideration
of counsel presenting them. It is the duty of
attorneys practicing in this court to present to the
court the authorities supporting their views and to
assist the court in reaching a correct conclusion.
[CITATION] (cleaned up). With
that, we remind counsel of their responsibility to assist the
20210787-CA
UT App 16 [CITATION]
judiciary in advancing jurisprudence through diligent advocacy,
adherence to our rules, and competent representation.
II. Custody and Parent-Time
A. Disclosure
¶21 Sonya argues that the district court erred in admitting
Family Therapist’s testimony when Joseph had not timely
disclosed him as an expert witness pursuant to rule 26 of the Utah
Rules of Civil Procedure, which requires disclosure “within 14
days after the close of fact discovery.” Utah R. Civ. P. 26(4)(C)(i).
Sonya’s briefing on this point leaves much to be desired. She
entirely ignores what happened at trial, instead substituting her
own retrospective take on what she believes should have
happened without attempting to explain why her timeliness
argument should now be considered. Providing some persuasive
caselaw—which may or may not exist—would have gone far to
support her argument. But like the rest of her briefing, this part is
inadequate.
¶22 A review of the record shows that Sonya did not object to
Family Therapist’s testimony on the grounds of untimely
disclosure. Instead, Sonya argued that Family Therapist had “far
exceeded any kind of mandate,” that he had not signed
confidentiality waivers, and that allowing his testimony created
patient privacy and ethical violations. In her objection at trial, rule
26 was mentioned only in passing and not in a way that would
suggest she was objecting on timeliness grounds. It certainly
would not have been clear to opposing counsel that a rule 26
timeliness issue was being raised such that he would have known
to argue a harmlessness or good-cause defense for the failure to
disclose, which would have been an easy argument to make given
that both Joseph and Sonya had jointly retained Family Therapist
and Sonya knew about Family Therapist several years before trial.
And it would not have been clear to the district court that it was
being asked to rule on a timeliness-based objection. For these
reasons, Sonya did not preserve any such objection for appellate
20210787-CA
UT App 16 Lamb v. Lamb
review. See [CITATION] (“It is
well established that we will not address the merits of an
unpreserved issue absent a showing that an exception to the
preservation rule applies.”).
B. Hearsay
¶23 Sonya additionally argues that Family Therapist’s
testimony, insofar as he testified as a fact witness, “was
inadmissible hearsay and based entirely on his conversations with
the parties and their children as their reunification therapist.”
Sonya’s hearsay argument is difficult to follow and poorly
briefed. Instead of analysis in support of her hearsay argument,
she provides scant and unsupported assertions.
¶24 Sonya objected below to Family Therapist’s testimony on
the grounds that it was hearsay. But the court ruled that it was not
hearsay, concluding that Family Therapist’s testimony was not
offered “for the truth of the matter asserted.” Rather, the court
ruled that the “focus of [the] questioning” was, first, to allow the
court “to find out how [the children were] doing, if they’re
capable of going forward” and, second, to identify the present
“obstacles” to “structuring visitation with [Sonya].” On appeal,
Sonya makes no attempt to engage with the court’s reasoning,
instead limiting her analysis to a blanket assertion that “it [was]
evident” Family Therapist was “allowed to testify as an expert,
offering hearsay, opinions and recommendations in [a] manner
that simply is not permitted by the Rules of Civil Procedure.”
Such superficial and undeveloped argument is simply not
persuasive, most especially because it does not address the
alleged error in the court’s reasoning. It is well settled that
appellants who fail to “address the district court’s reasoning” also
fail to carry their “burden of persuasion on appeal.” See [CITATION]; see also
[CITATION].
20210787-CA
UT App 16 Lamb v. Lamb
C. Custody Factors
¶25 Sonya next argues that the court did not address the
custody factors outlined in section 30-3-10 of the Utah Code,
making its custody findings insufficient. More specifically, Sonya
argues that the court’s factual findings were deficient due to the
court’s reliance on the testimony of Family Therapist in making
those findings.
¶26 Section 30-3-10 states that in “determining any form of
custody and parent-time . . . , the court shall consider the best
interest of the child and may consider . . . other factors the court
finds relevant,” including factors for each parent articulated in the
code. Utah Code § 30-3-10(2) (emphasis added). These factors a
court may consider are “not on equal footing.” [CITATION]. Instead, “it is
within the trial court’s discretion to determine, based on the facts
before it and within the confines set by the appellate courts, where
a particular factor falls within the spectrum of relative importance
and to accord each factor its appropriate weight.” Id. (emphasis
added). “And where significant evidence concerning a particular
factor is presented to the district court, findings that omit all
discussion of that evidence must be deemed inadequate.”
[CITATION]. Thus, to
“ensure that the trial court’s custody determination, discretionary
as it is, is rationally based, it is essential that the court set forth in
its findings of fact not only that it finds one parent to be the better
person to care for the child, but also the basic facts which show
why that ultimate conclusion is justified.” Id. ¶ 24 (cleaned up).
¶27 Here, the factors about which the court received significant
evidence concerned Sonya’s ability to function as a parent, which
the court received as testimony from Family Therapist. As we
have explained above, Sonya’s challenges to the admissibility of
Family Therapist’s testimony fail, and we accordingly conclude
that the district court acted well within its discretion in relying on
his testimony.
20210787-CA
UT App 16 [CITATION]
¶28 Regarding Sonya’s ability to parent the two older children,
Family Therapist testified that they were “very angry” with Sonya
and “announced that they would never see or talk to her again.”
Their anger was due to their religious sensibilities and Sonya’s
announcement that she was pregnant by a man other than their
father during the pendency of the divorce.
¶29 With regard to Sonya’s parenting, Family Therapist stated
that the youngest child was very frightened after “his last visit
with [Sonya] when she was struggling psychiatrically.”
Moreover, Family Therapist also testified the youngest child was
beginning to see himself as Sonya’s “partner,” resulting in the
child “becoming parentified.” 7
¶30 Family Therapist further indicated that while he was
unaware of Sonya’s “current condition or functioning,” Sonya
had been “hospitalized and diagnosed with some issues.” He
asserted that “safety” needed to be addressed, meaning that
Sonya required a psychiatric evaluation to demonstrate that her
“situation” was “under control.” He also indicated that Sonya
needed to work on “being forthright with medications.” Sonya,
by her own admission, had “suffered an isolated manic episode”
related to bipolar disorder and “called the police for assistance”
because she was suffering from “visual and auditory
hallucinations.”
[SEGMENT 17]
¶31 Sonya’s briefing on this point misses the mark because it
entirely relies on the assumption that Family Therapist’s
testimony was inadmissible, an assumption we conclude is
7. “Parentification is often referred to as growing up too fast.
Typically, it occurs when a child takes on parental responsibility
for their siblings or even their parents, taking care of a sibling or
parent physically, mentally, or emotionally. This can damage a
child’s mental well-being and lead to long-term mental health
conditions such as depression and anxiety.” Amber Felton, What
Is Parentification, Web MD, https://www.webmd.com/parenting
/what-is-parentification [https://perma.cc/N6TT-Y7QN].
20210787-CA
[CITATION]
without foundation. See supra ¶¶ 21–24. She does not explain why,
in light of Family Therapist’s admissible testimony, the court’s
consideration of the statutory custody factors was insufficient.
Sonya’s briefing makes no attempt to explain why the court is not
allowed to rely on the evidence it receives when making custody
decisions.
¶32 Moreover, Sonya does not identify any “significant
evidence,” see [CITATION], as to the other
factors in section 30-3-10 that the court received but left
unaddressed. Instead, her briefing advances an argument that is
entirely conclusory and unsupported by record citation or legal
authority:
Although § 30-3-10 gives broad discretion to the
court as to the relevance and appropriate weight to
give each factor, the district court in this case simply
did not have any information that would allow it to
make findings as to most of the statutory factors. For
instance, the district court did not know who the
primary caretaker of the children during the
marriage was. The district court did not know
anything about the marriage. The district court
would not permit any testimony relevant to
Joseph’s moral character or his history of drug
abuse and sexual proclivities. The Court would not
allow any testimony as to Joseph’s inability and
unwillingness to co-parent with Sonya. At the end
of the day, the Court simply sidestepped its
responsibility as an independent factfinder and
deferred to [Family Therapist].
This might be a good argument if Sonya had supported it with
citations to the record and to legal authority. As this argument
stands before us, we are unable to verify what it asserts. But we
suspect that Sonya might be indulging in hyperbole here. Indeed,
Sonya’s assertion that “the district court did not know anything
20210787-CA
UT App 16 [CITATION]
about the marriage” is patently false. Our review of the record
indicates that the court, in fact, knew quite a bit about the
marriage, such as its financial situation, issues related to the
children, and the problems that led to its demise, to name just a
few topics within its familiarity. And with regard to Joseph’s
alleged use of illegal drugs, we found only one instance
(subsequently echoed by Sonya’s attorney) in the record where
Sonya asserted before the district court that Joseph had a “cocaine
habit.” But the district court was free to “disregard such testimony
if it [found] the evidence self-serving and not credible,” since the
factfinder “is in the best position to judge the credibility of
witnesses.” See [CITATION]
(cleaned up). An isolated allegation made in passing certainly
does not amount to “significant evidence,” see [CITATION]
especially given the district court’s role as the
factfinder to judge the credibility of witnesses, see [CITATION] And as to the other statutory
custody factors that Sonya asserts the court left unaddressed, she
has not pointed us to any significant evidence that the court
received with respect to those factors.
¶33 Thus, unlike the situation in [CITATION], where we concluded
“that the district court exceeded its discretion by failing to include
in its findings any discussion of the evidence relating to the abuse
allegations against [the mother], her alleged neglect of [the child,]
and her moral character, as well as the effect that evidence had on
its best-interest analysis,” see [CITATION], here there
simply wasn’t significant evidence presented regarding section
30-3-10’s other custody factors. This lack of evidence—insofar as
there was a lack—was not the court’s fault; it was Sonya’s fault
for not presenting it. After all, a court cannot be faulted for failing
to consider evidence that was not presented to it. In contrast,
given the substantial evidence the court did receive about the
serious mental health issues Sonya faced, we conclude that the
district court did not abuse its discretion in its consideration of the
statutory factors when determining that awarding physical
custody to Joseph was in the best interest of the children.
20210787-CA
UT App 16 Lamb v. Lamb
¶34 In sum, Sonya has failed to show that the district court
abused its discretion in accepting and relying on the testimony of
Family Therapist in making custody determinations or that the
district court did not properly address the statutory factors in
determining custody of the children.
III. Ownership of the Business
¶35 Both parties agree that the district court concluded that the
business was not a joint marital asset. The district court awarded
the business to Joseph “[b]ased on [Joseph’s] testimony.” Along
with awarding the business to Joseph, the court stated that Joseph
was “responsible for payment of the purchase price of the
business.”
¶36 Sonya’s briefing on this point is challenging because it
consists largely of recounting financial matters pertaining to the
marriage but unrelated to the ownership of the business. She then
asserts, with no discernible effort to explain why, that the
“findings/conclusions were entirely inadequate to explain the
Court’s reasoning for giving ownership” of the business to
Joseph. Her argument is difficult to follow, but its essence, insofar
as we can tell, appears to be that the court erred in believing
Joseph’s testimony over hers.
¶37 We disagree with Sonya that the court erred in crediting
Joseph’s testimony regarding the ownership of the business over
Sonya’s. Again, the court stated in its factual findings that its
award of the business to Joseph was “[b]ased on [his] testimony.”
In making this credibility determination, the court acted well
within its discretion. “[W]here there exists evidence sufficient to
support a court’s rulings regarding a divorcing couple’s finances,
that ruling will be upheld on appeal, even if evidence was
presented that might have cut the other way.” [CITATION], ¶ 27. This is because “the fact-finder is in the
best position to judge the credibility of witnesses and is free to
disbelieve their testimony. Even where testimony is
uncontroverted, a trial court is free to disregard such testimony if
20210787-CA
UT App 16 Lamb v. Lamb
it finds the evidence self-serving and not credible.” [CITATION]; see also [CITATION] (“[I]t is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).
¶38 Here, the district court was in the best position to judge the
credibility of the parties. It clearly found Joseph’s testimony
regarding the ownership of the business to be more credible.
Sonya has provided no reasoned argument—apart from her
assertion that she disagrees with it—as to why the district court’s
conclusion that the business was not marital property was
erroneous. Accordingly, Sonya has failed to meet her “burden on
appeal to show that no reasonable person would take the view
adopted” by the district court, and we therefore conclude that the
district court did not err in awarding the business, along with its
liabilities, to Joseph. See [CITATION].
IV. Equity in the Marital Home
¶39 Sonya’s final claim is that the district court abused its
discretion in dividing equity in the marital home. “In divorce
8. Sonya also argues that the district court violated her
constitutional due process rights by its “ongoing interference”
with her counsel’s presentation of her case. Quite frankly, apart
from a litany of complaints about the court requiring counsel to
keep her questioning relevant, the contours of her argument on
appeal are difficult to discern, and she fails to cite a single case in
support of the argument. Accordingly, we decline to consider her
due process argument because it is inadequately briefed. See [CITATION] (“The argument must explain, with reasoned
analysis supported by citations to legal authority and the record,
why the party should prevail on appeal.”); see also [CITATION] (“The briefing on this claim . . . is inadequate.
[The appellant’s] briefing on this issue fails to cite any authority
and makes no attempt to connect the law to the facts of this case.”).
20210787-CA
UT App 16 [CITATION]
[SEGMENT 18]
actions, a district court is permitted considerable discretion in
adjusting the financial and property interests of the parties, and
its actions are entitled to a presumption of validity.” [CITATION]. Thus, in
such proceedings,
we will reverse only if (1) there was a
misunderstanding or misapplication of the law
resulting in substantial and prejudicial error; (2) the
factual findings upon which the award was based
are clearly erroneous; or (3) the party challenging
the award shows that such a serious inequity has
resulted as to manifest a clear abuse of discretion.
Because we can properly find abuse only if no
reasonable person would take the view adopted by
the trial court, appellants have a heavy burden to
show that an alleged error falls into any of these
three categories.
[CITATION].
¶40 Sonya’s claim focuses on three aspects of the court’s
valuation of the home: (1) the mortgage amount, (2) the use of the
Zillow estimate, and (3) the amount of the liens on the home. We
address each in turn.
¶41 The Mortgage Amount. Sonya complains that the district
court, based on Joseph’s testimony, should have used $298,000 as
the amount owing on the mortgages rather than $402,000, an
adjustment that would have benefitted her by increasing the
equity she would have received. “Generally, the marital estate is
valued at the time of the divorce decree or trial. However, in the
exercise of its equitable powers, a trial court has broad discretion
to use a different date, such as the date of separation, when
circumstances warrant. If the trial court uses a date other than the
date of the divorce decree, it must support its decision with
sufficiently detailed findings of fact explaining its deviation from
the general rule.” [CITATION]
20210787-CA
UT App 16 [CITATION]
P.3d 225 (cleaned up), cert. denied, 537 P.3d 1011 (Utah 2023). In
response to Sonya’s motion for amended findings, the court
explained, “[Joseph’s] statement of the mortgage balance of
$298,000 was referring to the total amount of all three (3)
mortgages. The Court also took that into evidence taking into
account that it was [Joseph’s] best estimate according to what his
monthly mortgage payments are and how much was deducted
from the principal each month.” We understand this to mean that
the court took into consideration that it was through Joseph’s
extraordinary post-separation payment efforts that the mortgage
amount had been reduced. Moreover, Sonya concedes in her reply
brief that it was within the district court’s discretion to use the
earlier mortgage total. Accordingly, we see no abuse of discretion
in the court’s use of the date of the separation to determine the
amount of the mortgages.
¶42 The Zillow Estimate. Sonya next complains that the home
should have been valued at about $260,000 more than was
indicated by the Zillow estimate the court used. The glaring
problem with this aspect of Sonya’s complaint is that it was her
counsel’s idea to use the Zillow estimate. In open court, her
counsel looked up the estimate and announced it to the court. And
the court proceeded to base its calculations on the very data
Sonya’s counsel supplied. We simply will not countenance
Sonya’s assertion that the district court erred in proceeding to use
the estimate that Sonya herself, through counsel, provided. Sonya
invited any error in this regard. See [CITATION] (“Where a party makes an affirmative
representation encouraging the court to proceed without further
consideration of an issue, an appellate court does not consider the
party’s objection to that action on appeal.” (cleaned up)). In her
briefing on appeal, Sonya points to nothing in the record that
would have allowed the court to value the home using anything
other than the Zillow estimate. Sonya does not challenge that the
court acted on the only information it had and that Sonya herself
provided. Accordingly, “given the absence of any expert financial
testimony, . . . the paucity of assistance the parties offered the
court,” and the representations made by Sonya’s counsel
20210787-CA
UT App 16 Lamb v. Lamb
regarding the marital home’s value, we conclude that “the court
in this instance made findings within its discretion and supported
by the evidence it was given.” [CITATION], ¶ 55.
¶43 The Liens. Sonya argues that the district court abused its
discretion in counting third-party liens against the equity in the
home. Given the evidence the court received, we see no error on
the part of the court in this regard. Indeed, there was evidence to
support the court’s determination that the third-party liens
should be included in the calculation of the home’s equity. Joseph
testified that when he and Sonya purchased the home, they did so
knowing that they were assuming responsibility for some of the
previous owner’s debts. This is an admittedly odd arrangement,
but Joseph testified that they were willing to accept it because they
were not in a financial position to purchase the home otherwise.
Sonya offered no testimony or other evidence to contradict
Joseph’s assertion, and she still points to nothing presented at trial
that contradicted this evidence. Accordingly, we conclude that the
factual findings that included the liability associated with the
third-party liens were not clearly erroneous and that the court did
not abuse its discretion in calculating the home’s equity.
CONCLUSION
¶44 Sonya has not demonstrated that the district court abused
its discretion in its custody determination, in awarding the
business to Joseph, or in its division of equity in the marital home.
Affirmed.
20210787-CA
UT App 16
2024 UT App 3
THE UTAH COURT OF APPEALS
BRIAN K. LEWIS,
Appellant,
v.
U.S. BANK TRUST, NA, AS TRUSTEE FOR LSF9 MASTER
PARTICIPATION TRUST,
Appellee.
Opinion
No. 20220434-CA
Filed January 5, 2024
Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 180600022
Stephanie L. O’Brien, Attorney for Appellant
Heidi G. Goebel, Keith S. Anderson, and Spencer
MacDonald, Attorneys for Appellee
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.
OLIVER, Judge:
¶1 After foreclosure was initiated against property he
purchased in Mona, Utah (the Property), Brian K. Lewis sued the
foreclosing parties, spurring a host of litigation. Lewis appeals the
district court’s grant of summary judgment on the quiet title and
unjust enrichment claims he made against U.S. Bank Trust, NA
(U.S. Bank). Lewis also appeals the court’s grant of summary
judgment to U.S. Bank on its claim for judicial foreclosure on the
Property and the court’s denial of his rule 60(b) motion for relief
from this portion of the judgment. For the reasons laid out below,
we affirm the district court in all respects. [CITATION]
BACKGROUND
¶2 In 2008, the prior owner (Prior Owner) of the Property
financed his purchase of the Property by executing a
promissory note and a deed of trust securing the note. The loan
was eventually sold to LSF9 Master Participation Trust (LSF9),
and after several assignments, the deed was assigned to U.S.
Bank, as trustee on behalf of LSF9. Prior Owner defaulted on the
loan and filed for bankruptcy. Prior Owner’s bankruptcy petition
was discharged, and along with it, his personal obligation on the
loan. 1
0F
¶3 In April 2010, notice of default on the loan was recorded,
noting there had been no payment on the obligation since Prior
Owner’s default. This notice was later “rescind[ed], cancel[led]
and withdraw[n]” on May 1, 2014. But a new notice of default was
entered the same day. A few months later, in August 2014, Prior
Owner sold the Property to Lewis. Lewis claims he “has
maintained” and “put substantial improvements into the
Property” since 2014.
The First Lawsuit
¶4 In July 2016, Lewis was informed that a nonjudicial
foreclosure sale of the Property would occur in September.
Lewis filed a complaint against the foreclosing parties in state
district court, seeking to quiet title and obtain a judgment
preventing future foreclosure. Lewis argued the foreclosing
1. Pursuant to rule 201 of the Utah Rules of Evidence and U.S.
Bank’s request, this court takes judicial notice of Prior Owner’s
bankruptcy proceedings in the United States Bankruptcy Court
for the District of Utah, case number 10-23076. See [CITATION].
[SEGMENT 19]
20220434-CA
UT App 3 [CITATION]
parties had failed to foreclose within the statutory period and
were no longer entitled to do so. This suit (the First Lawsuit) was
removed to the United States District Court for the District of
Utah. See [CITATION]. The federal district court
granted summary judgment in favor of the foreclosing parties,
concluding the statute of limitations period began on May 1, 2014,
and had not run by the time foreclosure proceedings began in
September 2016. Id. at *1. Lewis appealed this decision to the
United States Court of Appeals for the Tenth Circuit, but the
appeal was dismissed for lack of prosecution. See [CITATION].
The Current Lawsuit
¶5 Days after Lewis’s Tenth Circuit appeal was dismissed, he
filed a new complaint (the Current Lawsuit) in state court, this
time against U.S. Bank. Lewis again sought to quiet title in the
Property and to enjoin U.S. Bank from “asserting any estate, right,
title or interest” in the Property. U.S. Bank removed the action to
federal district court. Lewis opposed removal and filed a second
amended complaint in state court. The state court concluded it did
not have jurisdiction over the amended complaint as the case had
been removed to federal court, but based on lack of diversity
jurisdiction, the federal court eventually remanded the case to the
state court.
¶6 U.S. Bank then filed a motion to dismiss Lewis’s complaint
under rule 12(b)(6) of the Utah Rules of Civil Procedure, arguing
the suit was barred by res judicata and failed to state a claim upon
which relief could be granted. Thereafter, the court permitted
Lewis to amend his complaint. Lewis’s third amended complaint
raised a quiet title claim labeled “Quiet Title—Laches” wherein he
alleged U.S. Bank or its predecessors in interest had
“unreasonably delayed enforcing” their rights against the
20220434-CA
UT App 3 [CITATION]
Property. 2 The complaint also alleged U.S. Bank had been unjustly
F
enriched by Lewis’s maintenance and improvement of the
Property.
¶7 U.S. Bank then filed another motion to dismiss, arguing
again that Lewis’s claims were barred by res judicata and were
otherwise meritless. The court agreed that Lewis’s claims for quiet
title and unjust enrichment were barred by res judicata and
dismissed them because they “could and should have been
brought in the earlier lawsuit.” Lewis appealed the dismissal of
his claims to this court. We held that “[b]ecause the district court
could not decide this issue without considering materials outside
the pleadings, the motion to dismiss should have been converted
to one for summary judgment” and we remanded the case to the
district court. [CITATION]. Thereafter, U.S. Bank answered Lewis’s third
amended complaint, again arguing his claims were barred by res
judicata.
¶8 While the Current Lawsuit was pending, U.S. Bank had
initiated a judicial foreclosure of the Property. On U.S. Bank’s
motion, the court consolidated the judicial foreclosure action into
the Current Lawsuit. On April 30, 2020, the May 1, 2014, notice of
default was cancelled.
¶9 U.S. Bank then simultaneously filed two motions for
summary judgment. Though the motions were both captioned
“Motion for Summary Judgment and Memorandum in Support,”
they addressed different issues—one motion concerned Lewis’s
claims for quiet title (the Quiet Title Motion), while the other
focused on U.S. Bank’s foreclosure claim (the Foreclosure
2. Lewis raised a second quiet title claim, alleging the deed of trust
was not properly transferred to U.S. Bank, rendering U.S. Bank
unable to foreclose on the Property. But this claim was later
dismissed by stipulation of the parties.
20220434-CA
UT App 3 [CITATION]
Motion). The Foreclosure Motion stated on its first page that “U.S.
Bank Trust has simultaneously filed a separate motion for
summary judgment as to Mr. Lewis’s claims against U.S. Bank
Trust and which is adopted in full” and later likewise noted the
“simultaneously-filed Motion for Summary Judgment that
addresses Mr. Lewis’s quiet title and unjust enrichment claims.”
The Quiet Title Motion argued Lewis’s quiet title and unjust
enrichment claims were barred by res judicata. The day after U.S.
Bank filed its two motions for summary judgment, it filed a Notice
of Errata, noting that it had “[i]nadvertently” included a
watermark on the Quiet Title Motion. U.S. Bank attached a
corrected motion.
¶10 Lewis’s counsel (Counsel) “mistakenly believed that [the
Quiet Title Motion] was the only pending motion for
summary judgment.” Thus, Lewis filed a single Opposition
to Defendants’ Motion for Summary Judgment addressing
only the Quiet Title Motion. Though Lewis did not directly
oppose the Foreclosure Motion, he did briefly address judicial
foreclosure in his opposition to the Quiet Title Motion, arguing
U.S. Bank did not have a right to foreclose because it could not
demonstrate a “chain of title” establishing assignment of the deed
of trust.
¶11 After a hearing, the court granted both of U.S. Bank’s
motions for summary judgment. The court concluded Lewis’s
quiet title and unjust enrichment claims were barred as a matter
of law by claim preclusion. And the court granted summary
judgment to U.S. Bank on its judicial foreclosure claim, finding the
statute of limitations had not run on the claim. U.S. Bank prepared
a proposed written order memorializing the court’s judgment, but
Lewis objected, arguing the order failed “to clarify and make clear
the consequences and facts surrounding U.S. Bank’s filing of two
(2) Motions for Summary Judgment . . . with identical titles,
followed by an Errata.” The court entered final judgment over
Lewis’s objection.
[CITATION]
¶12 U.S. Bank later filed a motion to amend the judgment
under rule 59 of the Utah Rules of Civil Procedure, arguing the
court had not properly addressed Lewis’s quiet title claims.
Shortly thereafter, Lewis filed a rule 60(b) motion for relief from
the court’s grant of summary judgment to U.S. Bank on its judicial
foreclosure claim. Counsel argued she “encountered a scenario
that was unprecedented in her practice of law when U.S. Bank
filed two (2) separate pleadings titled ‘Motion for Summary
Judgment and Memorandum in Support’” and that the filing of
the Errata caused “confusion,” which constituted mistake or
excusable neglect under rule 60(b)(1). Counsel declared in a
subsequent affidavit that due to the Errata “and the fact that . . .
multiple pleadings were filed by [U.S. Bank] with the same title
on the same date,” she “mistakenly failed to realize a separate
motion for summary judgment was filed on U.S. Bank’s claim for
judicial foreclosure.”
¶13 After a hearing, the court granted U.S. Bank’s rule 59
motion and issued an amended judgment. 3 The court denied
F
Lewis’s rule 60(b) motion, finding Lewis had “not established the
requisite showing of ‘due diligence’ required for relief under” rule
60(b)(1). The amended judgment affirmed the court’s prior grant
of summary judgment to U.S. Bank on both Lewis’s claims and
U.S. Bank’s judicial foreclosure claim.
ISSUES AND STANDARDS OF REVIEW
¶14 On appeal, Lewis argues the district court erred in
concluding his claims for quiet title and unjust enrichment were
barred by claim preclusion. “Whether res judicata, and more
specifically claim preclusion, bars an action presents a question of
law that we review for correctness.” [CITATION]
3. The substance of the amendment is not relevant to this appeal.
20220434-CA
UT App 3 Lewis v. U.S. Bank Trust
¶15 Next, Lewis argues the district court improperly granted
summary judgment to U.S. Bank on its judicial foreclosure claim.
In particular, he argues the court erred in determining the statute
of limitations on the claim had not yet run. “We review summary
judgment decisions for correctness, viewing the facts in a light
most favorable to the losing party below and giving no deference
to the district court’s conclusions of law.” [CITATION].
¶16 Finally, Lewis argues the district court abused its
discretion in denying his rule 60(b)(1) motion. “We review a
district court’s denial of a rule 60(b) motion for relief from
judgment for an abuse of discretion.” [CITATION].
ANALYSIS
I. Lewis’s Quiet Title and Unjust Enrichment Claims
¶17 First, Lewis challenges the district court’s conclusion that
res judicata barred his quiet title and unjust enrichment claims as
a matter of law. “The doctrine of res judicata embraces two
distinct branches: claim preclusion and issue preclusion.” [CITATION]. While
“claim preclusion corresponds to causes of action[,] issue
preclusion corresponds to the facts and issues underlying causes
of action.” [CITATION] (cleaned up). Claim preclusion “is premised on the principle
that a controversy should be adjudicated only once.” [CITATION] (cleaned up). To this end, for claim preclusion to apply,
(1) “both cases must involve the same parties or their privies,”
(2) “the claim that is alleged to be barred must have been
presented in the first suit or be one that could and should have
been raised in the first action,” and (3) “the first suit must have
[SEGMENT 20]
20220434-CA
UT App 3 [CITATION]
resulted in a final judgment on the merits.” Id. (cleaned up). [CITATION]
challenges only the court’s application of the second element of
this test to his claims.
¶18 In determining whether claims “are the same as those
brought or that could have been brought” for claim preclusion
purposes, Utah courts have adopted a transactional test. See [CITATION],
2009 UT 47, ¶ 30. Under this test, claims are the same as those that
could and should have been brought in the prior suit “if they arise
from the same operative facts, or in other words from the same
transaction.” [CITATION], 2019 UT App 213, ¶ 43 (cleaned up). This
test does not turn on “the specific legal theory invoked” but rather
on “the essential similarity of the underlying events giving rise to
the various legal claims,” considering “whether the facts are
related in time, space, origin, or motivation” and “whether they
form a convenient trial unit.” [CITATION], 2012 UT
38, ¶¶ 13–14, 284 P.3d 622 (cleaned up).
¶19 Here, the transaction giving rise to [CITATION]’s quiet title
claims in the Current Lawsuit and the First Lawsuit is the same.
In the First Lawsuit, [CITATION] sought to quiet title to the Property,
arguing the foreclosing parties did not timely initiate foreclosure
proceedings and the statute of limitations on foreclosure had run.
He based that claim on the fact that default on the loan occurred
in 2009 but foreclosure was not initiated until 2016—outside the
applicable six-year statute of limitations. In the Current Lawsuit,
[CITATION] again raised a quiet title claim, arguing this time—under
the doctrine of laches—that U.S. Bank and its predecessors in
interest “unreasonably delayed enforcing their rights against the
Property.” This claim was based on his factual allegations that
“[f]rom July 2010, [U.S. Bank] or its claimed predecessors in
interest could have taken action against the Property” but failed
to do so until 2016.
¶20 Both claims concern the Property, were motivated by
[CITATION]’s desire to prevent foreclosure of the Property, and concern
20220434-CA
UT App 3 [CITATION]
the delay in foreclosure. And Lewis does not suggest that the
viability of his laches claim hinges on the additional delay
incurred between the First Lawsuit and the Current Lawsuit.
Although premised on different legal theories—statute of
limitations versus laches—Lewis’s quiet title claims in the First
Lawsuit and Current Lawsuit arise from the same transaction.
The claims are related in time, space, origin, and motivation, see
id. ¶¶ 13–14, and the laches-based claim could and should have
been brought in the First Lawsuit.
¶21 Likewise, Lewis’s unjust enrichment claim is based on the
same transaction and should have been raised in the First
Lawsuit. Lewis based his unjust enrichment claim in the Current
Lawsuit on his assertion that he “maintained” and “made
substantial improvements to the Property,” thus “conveying a
benefit” on U.S. Bank. Lewis bought the Property on August 26,
2014. And he claims he began improving the Property “by new
construction” sometime in 2015. This means, by the time he filed
the First Lawsuit on August 23, 2016, he would have been able to
bring an unjust enrichment claim based on his supposed
maintenance and improvement.
¶22 Lewis declared that “additional maintenance and
improvements” to the Property since this “new construction”
provide the basis for the unjust enrichment claim in the Current
Lawsuit. (Emphasis added.) But this is a tacit acknowledgement
that Lewis improved the Property prior to the First Lawsuit.
Lewis makes no attempt to differentiate between improvements
made prior to the First Lawsuit and those supposed
improvements giving rise to his unjust enrichment claim in the
Current Lawsuit. And he provides no detail to substantiate what
his supposed improvements are. Thus, we are left to conclude that
this claim is based—at least in part—on improvements made to
the Property prior to the First Lawsuit. Consequently, the unjust
enrichment claim is based on the same operative facts as a claim
that should have been brought in the First Lawsuit.
20220434-CA
UT App 3 [CITATION]
¶23 Because Lewis’s quiet title claim, based on laches, and his
unjust enrichment claim could and should have been raised in the
First Lawsuit, and because the remaining elements of claim
preclusion are undisputed, the district court correctly concluded
that claim preclusion barred Lewis’s claims as a matter of law. 43F
II. U.S. Bank’s Judicial Foreclosure Claim
¶24 Lewis challenges the district court’s conclusion that the
statute of limitations on U.S. Bank’s judicial foreclosure claim had
not begun to run. Under Utah Code section 57-1-34, a person
seeking to foreclose on an obligation secured by trust deed must
either “commence an action” for judicial foreclosure or initiate
nonjudicial foreclosure by filing “a notice of default” “within the
period prescribed by law.” In [CITATION], this court concluded the “period
prescribed by law” is the six-year statute of limitations laid out by
Utah Code section 70A-3-118(1). [CITATION] (cleaned up). Under
section 70A-3-118(1), this six-year statute of limitations begins to
4. Lewis also argues that, in barring his claims based on claim
preclusion, the district court somehow applied res judicata to bar
his defense to U.S. Bank’s judicial foreclosure claim. But in its
order granting summary judgment, the court addressed U.S.
Bank’s judicial foreclosure claim on the merits. The court did not
apply res judicata to prevent Lewis from defending against
judicial foreclosure. This argument is unavailing.
5. Lewis argues U.S. Bank’s judicial foreclosure claim was a
compulsory counterclaim to the First Lawsuit and should
therefore be dismissed. But because this argument is unpreserved,
we do not address it further. See [CITATION] (“It is well established that we will not address the
merits of an unpreserved issue absent a showing that an exception
to the preservation rule applies.”).
20220434-CA
UT App 3 [CITATION]
run “after the due date or dates stated in the note, or, if a due date
is accelerated, within six years after the accelerated due date.”
¶25 Filing a notice of default is an acceleration, causing this
statute of limitations to begin to run. See [CITATION] (“As a result of the
default notice, the [d]ebt was accelerated and immediately due in
full.”); [CITATION] (noting that filing a notice of default was an
“acceleration event” that “triggered the limitations period”), cert.
denied, [CITATION]. A notice of default may be
cancelled, thus halting the statute of limitations; however, filing a
new notice re-accelerates the obligation’s due date and restarts the
statutory period for foreclosure. See [CITATION]
(acknowledging two previously filed notices of default
had been cancelled and the six-year statute of limitations began
running anew when a third notice of default was filed).
¶26 Here, the first notice of default on the loan obligation was
filed in 2010. It was later cancelled on May 1, 2014, but a new
notice was entered on the same day. This notice was later
cancelled on April 30, 2020. This cancellation of the notice of
default halted the six-year statute of limitations period for
foreclosure. See [CITATION]. No new notice of default has been recorded.
Thus, the six-year limitations period for foreclosure had not even
begun by the time U.S. Bank filed its judicial foreclosure action,
and the district court correctly concluded as much. 6 5F
6. Lewis also argues genuinely disputed material facts precluded
summary judgment on U.S. Bank’s judicial foreclosure claim.
Lewis lists four allegedly disputed “facts,” but he makes no
attempt to explain how they precluded summary judgment. And
in his reply brief, he raises factual issues different from those in
his opening brief, again without a meaningful attempt to explain
(continued…)
20220434-CA
UT App 3 [CITATION]
III. Lewis’s Rule 60(b) Motion
¶27 Lastly, Lewis argues the district court abused its discretion
in denying his motion for relief under rule 60(b) of the Utah Rules
of Civil Procedure. “In general, a movant is entitled to have a
default judgment set aside under [rule] 60(b) if (1) the motion is
timely; (2) there is a basis for granting relief under one of the
subsections of 60(b); and (3) the movant has alleged a meritorious
defense.” [CITATION]. Rule
60(b) provides several bases for relief, including “mistake,
inadvertence, surprise, or excusable neglect.” Utah R. Civ. P.
60(b)(1). To qualify for relief under rule 60(b)(1), a movant must
demonstrate due diligence. See [CITATION]. “Due diligence is established where the failure
to act was the result of the neglect one would expect from a
reasonably prudent person under similar circumstances.” [CITATION]
(cleaned up).
[SEGMENT 21]
¶28 Here, Counsel stated she received the e-filing notification
for U.S. Bank’s “Motions for Summary Judgment and
Memorandum in Support.” (Emphasis added.) She also received
U.S. Bank’s Errata, which corrected the Quiet Title Motion. She
believed the Errata replaced previous pleadings and “that there
was only one pending Motion for Summary Judgment.” She then
opposed only the Quiet Title Motion—leaving the Foreclosure
Motion unopposed. Lewis argued the failure to oppose
how they precluded summary judgment. “Appellate courts are
not a depository in which a party may dump the burden of
argument and research.” [CITATION] (cleaned up). As the appellant,
Lewis has “the burden to clearly set forth the issues [he is]
appealing and to provide reasoned argument and legal
authority.” Id. Because he has not done so, we do not address this
argument further.
20220434-CA
UT App 3 [CITATION]
constituted excusable neglect or mistake under rule 60(b)(1)
because “it was unprecedented in [Counsel’s] practice of law” to
file two separate motions for summary judgment, and the
identical captions created a “reasonable scenario in which” she
could believe there was only one motion filed. The district court
disagreed, finding that because Counsel “had notice of, but did
not respond to,” the Foreclosure Motion, her behavior was
“unreasonable” and failed to “establish[] the requisite showing of
‘due diligence’ required.” We agree with the district court.
¶29 “A multitude of Utah decisions” confirm that “failure to
check or read correspondence” demonstrates a lack of due
diligence. [CITATION] (collecting cases), cert. denied, Jan. 2,
2024 (No. 20231057); see id. ¶¶ 14–15 (concluding a party who
ignored emails from its registered agent about service of process
“failed to act with diligence—let alone the due diligence required
to justify relief under rule 60(b)(1)”—because “a reasonably
diligent person would have read these emails and discovered
their content”); [CITATION] (reasoning an attorney who “failed to read
the documents” he received “did not exercise the appropriate
level of diligence required to excuse his neglect, because his
complete lack of action does not meet the standard required, i.e.,
the exercise of due diligence by a reasonably prudent person
under similar circumstances” (cleaned up)).
¶30 At the very least, due diligence required Counsel to read
the documents she received. Had she done so, she would have
known U.S. Bank filed two separate motions for summary
judgment. The first page of the Foreclosure Motion stated, “U.S.
Bank Trust has simultaneously filed a separate motion for
summary judgment as to Mr. Lewis’s claims against U.S. Bank
Trust.” And it noted later, “U.S. Bank adopts and incorporates all
arguments and citations in the simultaneously-filed Motion for
Summary Judgment that address Mr. Lewis’s quiet title and
20220434-CA
UT App 3 Lewis v. U.S. Bank Trust
unjust enrichment claims.” “[F]ailing to read the documents after
receiving them does not qualify” as due diligence. [CITATION] Without a showing of due
diligence, Lewis was not eligible for relief for mistake or
inadvertence under rule 60(b)(1). See [CITATION] And
without a basis for relief under rule 60(b), the district court did
not abuse its discretion in denying the motion.
CONCLUSION
¶31 The district court correctly concluded that Lewis’s quiet
title and unjust enrichment claims were barred by claim
preclusion and that the statute of limitations on U.S. Bank’s
judicial foreclosure claim had not run. And the court acted within
its discretion in denying Lewis’s rule 60(b) motion for relief from
the judgment. Accordingly, we affirm.
20220434-CA
UT App 3
Now, respond to the instruction.
### Instruction:
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### Target Case:
This opinion is subject to revision before final
publication in the Pacific Reporter
2023 UT 22
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
CHRISTOPHER DOUGLAS CENTENO,
Appellant.
No. 20200875
Heard February 8, 2023
Filed October 5, 2023
On Direct Appeal
Fourth District, Provo
The Honorable Donald J. Eyre
The Honorable James R. Taylor
No. 181403119
Attorneys:
Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Solic. Gen.,
Salt Lake City, for appellee
Herschel Bullen, Salt Lake City, for appellant
JUSTICE POHLMAN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,
JUSTICE PETERSEN, and JUSTICE HAGEN joined.
JUSTICE POHLMAN, opinion of the Court:
INTRODUCTION
¶ 1 While angry and drunk, Christopher Douglas Centeno choked
his girlfriend, A.C., to unconsciousness in front of their two-year-old
daughter and then raped A.C. twice. A jury convicted Centeno on two
counts of rape, one count of aggravated assault, and two counts of
domestic violence in the presence of a child. We reject Centeno’s
multiple claims of error and affirm his convictions.
STATE v. CENTENO
Opinion of the Court
¶ 2 First, Centeno contends the district court abused its discretion
in not withholding from jury deliberations a video exhibit of his police
interview. He claims the exhibit should have been withheld from the
jury room because it placed undue emphasis on his police interview,
violated his constitutional rights, and prejudicially depicted him in
handcuffs. We conclude that the district court did not abuse its
discretion in rejecting Centeno’s undue emphasis objection, and we
do not reach his other theories because they are unpreserved.
¶ 3 Second, Centeno asserts he received constitutionally
ineffective assistance of counsel. Specifically, he contends defense
counsel provided ineffective assistance by not objecting to the
admission of the audio and video footage of A.C.’s interactions with
law enforcement. And he contends counsel was further ineffective in
not keeping a portion of that footage—which was not played in open
court—out of the jury room. We reject Centeno’s challenge because he
has not shown that he was prejudiced by the alleged deficient
performance.
¶ 4 Third, Centeno contends the district court erred in denying his
motions for a mistrial and a new trial. The State dismissed A.C.’s
eight-year-old daughter early in her testimony after she broke down
on the witness stand. Centeno argues he did not receive a fair trial
because the situation violated his constitutional right to confrontation
and left the jury to speculate about the reason for her breakdown.
Because Centeno could have called the child to testify after being
dismissed by the State, we conclude that the district court did not err
in denying his motions.
BACKGROUND 1
¶ 5 Christopher Centeno and A.C. began dating in 2015. At the
time, A.C. had one daughter (Child). In 2016, A.C. and Centeno had
a daughter together (Toddler). Over the course of Centeno and A.C.’s
relationship, Centeno lived in A.C.’s apartment on and off.
¶ 6 In the summer of 2018, Centeno and A.C.’s relationship
became volatile. Centeno’s physical and verbal abuse led to police
being called to A.C.’s apartment several times. In October 2018, a
series of events resulted in the criminal convictions Centeno
challenges on appeal.
_____________________________________________________________
1 “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in a light most favorable to that verdict and
recite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2, 114 P.3d
551 (cleaned up).
2
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Opinion of the Court
The Rape and Assault
¶ 7 One afternoon, A.C., Centeno, and Centeno’s cousin (Cousin)
gathered at A.C.’s apartment for a meal, planning to watch a boxing
match that evening. But things dissolved when Centeno and Cousin
began to argue. Cousin thanked A.C. for the meal—to which A.C.
thanked him for eating—and left.
¶ 8 Centeno turned his anger toward A.C. for what he perceived
as “inappropriate behavior” with Cousin. Centeno viewed A.C.’s
“thank you” to Cousin as flirtatious and accused her of wanting to
have sex with him. A.C. denied the accusation. She told Centeno that,
if anything, she was on the receiving end of things, recounting an
incident when Cousin playfully bumped hips with A.C. while
maneuvering around the tight quarters of A.C.’s apartment. But
A.C.’s denial and explanation were to no avail. Centeno left the
apartment to watch the match, and A.C. stayed home, crying and
upset.
¶ 9 Later that evening, Centeno returned intoxicated and
carrying a bottle of vodka. After a series of arguments, A.C.
eventually lay down with Toddler in the bedroom. Centeno followed.
He sat on the foot of the bed, “rocking back and forth,” “laughing and
crying,” and telling A.C. he was “so sorry for what’s about to
happen” and that “you made me do this.” Centeno was “acting like
he never ha[d] before.” He told A.C. that his friends would not
respect him if he did not “follow through with getting rid of [her]”
and that she was “going to die tonight.”
¶ 10 A.C. tried to comfort Toddler, who appeared to be
concerned about her dad and wanted to hug him. A.C. explained to
Toddler that Centeno was upset over losing his father and
grandmother, but A.C.’s words infuriated Centeno. He grabbed A.C.
and began hitting her in the head and face. A.C.’s glasses flew off and
broke. Centeno then got on top of A.C., pinned her arms under his
knees, and choked her. Toddler began yelling and crying for A.C., as
did Child, who was in a nearby room. With one hand over A.C.’s nose
and mouth and the other on her neck, Centeno choked her until she
lost consciousness.
¶ 11 When A.C. came to, Centeno immediately covered her nose
and mouth and choked her a second time until she passed out again.
This time when A.C. came to, Centeno was no longer on top of her
but was sitting against the bed’s backboard. A.C. sat up in the bed
and noticed she was “soaking wet,” having urinated on herself while
being choked. She also had “a really hard time breathing,” her “chest
3
STATE v. CENTENO
Opinion of the Court
hurt,” her “ear hurt really bad,” her “front bottom teeth felt really
loose,” and her “lip was really swollen.” “[E]verything was stinging.”
¶ 12 Centeno then accused A.C. of infidelity. He demanded A.C.
give him the phone number of a man he accused her of seeing. She
denied the accusation and said she had no phone number to give him.
Unsatisfied with her answers, Centeno got on top of A.C. again,
hitting her in the head and choking her for a third time. During this
attack, Toddler sat beside A.C.’s head, trying to put A.C.’s glasses
back on her face. A.C. did not pass out during this third beating, and
Centeno eventually stopped.
¶ 13 After the assault ended, A.C. asked Centeno if she could
pick Toddler up. Centeno responded by slapping A.C. and then
saying, “You can now.” Still wet with urine, A.C. lay with Toddler in
the bed for about an hour until Toddler fell asleep. At this point, A.C.
asked Centeno if she could use the bathroom. Centeno said “yes” and
followed her there. While A.C. sat on the toilet, Centeno demanded
she perform oral sex on him. A.C. complied while “flinching”
through pain.
¶ 14 Midway through the oral sex, Centeno told A.C. to let him
have sex with her. Again placating Centeno, A.C. complied but asked
him if she could first remove her shirt because it was covered in urine.
Centeno said he did not mind the smell and did not let A.C. take off
her shirt. A.C. walked over to the mattress on the floor in the living
room, and Centeno proceeded to have sex with her. A.C. later
described the intercourse as painful, and she “remember[ed] saying
[to Centeno] that it was hurting.” She testified Centeno “knew that
[she] didn’t want it to continue because of . . . [her] body language.”
When the intercourse ended, Centeno told A.C., “I know that you
hate it when I fuck you like that.”
¶ 15 A.C. got up and went to shower. The water felt painful
against her skin. She vomited. After some time, A.C. got out, put
some clothes on, spread a blanket over the urine spot on her mattress,
and lay next to Toddler. A.C. tried to fall asleep but “felt like [she]
was going to die in [her] sleep because [her] head hurt so bad.”
Centeno slept in bed next to her, holding her phone, which he had
taken earlier in the night.
¶ 16 In the morning, A.C. was “in way more pain than [she] was
the night before.” The sides of her neck hurt, she was swollen beneath
her chin, and contact with her skin was painful. She tried to figure out
how to leave the apartment. But before she could decide her next
move, Centeno told A.C. to let him have sex with her again. A.C. did
not want to, but she did not feel like she could say no. When Centeno
4
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Opinion of the Court
compelled A.C. to have intercourse with him, Toddler was lying
beside A.C., staring up at her. Crying, A.C. reached down to cover
Toddler’s eyes. Centeno moved A.C.’s hand and told A.C. that
Toddler could watch because she “doesn’t know what’s happening.”
¶ 17 After Centeno was finished, A.C. got up and dressed
herself. Centeno placed A.C.’s phone on the bookshelf in the bedroom
and told A.C. that she was “not going to call anyone.” Centeno then
followed A.C. into the kitchen. While Toddler was eating breakfast,
Centeno said to Toddler, “Hey, [Toddler], do you want me to kill
your mommy? Yes? Or no? Yes? Or no?” Toddler, who was learning
to say yes, said yes. Child overheard this and began crying.
¶ 18 After breakfast, Centeno lay on the mattress in the living
room and watched television with the children. Noticing Centeno
was falling asleep, A.C. retrieved her phone and called her mother
(Mother). A.C. told Mother to come quickly and pick her up from her
apartment because Centeno “tried to kill [her] last night.” Minutes
later, Mother arrived. She gave Centeno an excuse as to why she
needed to take A.C. and the children for the day, and A.C., the
children, and Mother left the apartment and got into Mother’s van.
Mother drove the van around the corner of the apartment complex,
sat in a parking lot, and called the police.
The Police Interviews
¶ 19 When law enforcement arrived, an officer (Officer) spoke
with A.C. through the open window of Mother’s van. Officer noticed
bruises on A.C.’s neck. He asked her how long she had been out of
the apartment and if she had a way to reach Centeno. A.C. told Officer
that Centeno did not have a phone number but that he used a
messenger app. Officer asked A.C. if she could try to contact Centeno.
A.C. did so and noticed that his phone was “not connecting.” She told
Officer, “I think he’s gone. . . . He doesn’t have wifi on his phone. I
think he’s left.”
¶ 20 A.C., Mother, and the children followed the police to the
station. When they arrived, A.C. threw up in the parking lot. Inside
the police station, Officer sat down with A.C. in an interview room
and gathered her personal information. He told A.C., “I appreciate
you calling in. I know it takes a lot of strength . . . . We are here for
you, okay? . . . Decisions are made but it doesn’t make it allowable for
him to do anything, okay?”
¶ 21 Officer then asked A.C. to walk him through the incident.
A.C. told Officer that she and Centeno got into an argument about
Cousin and that Centeno hit her in the head “maybe like 100 times”
5
STATE v. CENTENO
Opinion of the Court
and choked her three times. She also explained that her face and neck
were swollen and that she had been throwing up. But as A.C. was
telling Officer more about the incident, a detective (Detective) entered
the room and ended A.C.’s interview with Officer so that A.C. could
receive medical care at the hospital.
¶ 22 Around the same time, Centeno arrived in handcuffs at the
police station, having been apprehended after an attempted flight
from law enforcement. He was taken to an interview room, where
Detective removed the handcuffs.
¶ 23 When Detective asked Centeno what happened the night
before, Centeno responded, “I really don’t remember. I was
intoxicated and I was, you know, pretty drunk, man.” Detective
asked Centeno if he remembered hitting A.C., and Centeno replied,
“Like I told you, I don’t remember, man.” Detective then asked
Centeno when he and A.C. last “had consensual sex.” Centeno
responded, “Consensual sex? . . . What do you mean?” He told
Detective they had sex earlier that morning, and he stated, “I hope
she’s not saying like, I mean, she’s my girlfriend, could I be charged
with that, like is that a thing like rape?” When Detective told Centeno
that “rap[ing] your wife” is a legal possibility, Centeno expressed
disbelief, saying, “Geez, man. . . . Crazy, that’s crazy.”
¶ 24 Soon thereafter, Centeno admitted to Detective that he had
assaulted A.C. When Detective told Centeno that A.C. had “marks
where [Centeno] strangled her,” Centeno replied, “I know but I’m
guilty of that, man, but not of the rape, man, not of the rape.”
The Trial
¶ 25 The State tried Centeno on two counts of rape, two counts
of aggravated assault, and two counts of domestic violence in the
presence of a child. The jury trial spanned four days in February 2020
and included testimony from A.C., Child, Mother, Officer, the sexual
assault nurse examiner who examined A.C. at the hospital (Nurse),
Detective, and Centeno.
¶ 26 The State called A.C. first. Struggling to contain her
emotions, A.C. testified that on the night in question Centeno hit her
“a ton of times” and choked her three times, two of which left her
unconscious. As A.C. testified about the choking, she began to feel
dizzy, and the prosecution gave her a moment. Once composed, A.C.
testified that, after the choking, her brain was “not working” well
because her head “was so swollen,” her face and lips “were swollen,”
and her “teeth were hurting.” She explained that she went into the
bathroom, and Centeno followed her in and told her to perform oral
6
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Opinion of the Court
sex on him. She testified that Centeno then demanded that she have
sex with him on the mattress in the living room. She said that she
went to sleep after Centeno finished and that Centeno again
demanded sex early the next morning. A.C. testified that she
complied because “[i]t was not safe to say no.”
¶ 27 The State also called eight-year-old Child to testify. When
the prosecutor asked Child some preliminary questions, she had
difficulty answering. Then, when asked if she “remember[ed] the last
night that [Centeno] was in [her] house,” Child became emotionally
distraught. The State requested a recess, which the court granted.
After the recess, the State elected not to resume its examination.
¶ 28 Outside the jury’s presence, defense counsel conceded that
Centeno “[c]ertainly” did not want the State to resume its
examination of Child, but he objected to the “situation” as “unfairly
prejudicial” and moved for a mistrial. Specifically, counsel argued
that the jury was left to “wild[ly] speculat[e] as to why [Child was]
crying.” The court denied the motion but invited counsel to propose
a curative instruction. After some discussion, and once the jury
returned, the court provided the following instruction:
[G]iven the emotional state of the last witness . . . the
prosecution has determined that they’re not going to call
that witness and since there’s no information that is
relevant to this case [that] was elicited from that witness,
you should not take into consideration the fact that she
took the witness stand but now is not going to proceed
at all. That should have no relevance with respect to
your decisions in this case.
¶ 29 Mother took the stand next. Mother testified that when she
arrived at A.C.’s apartment, A.C.’s face was “super red” and
“swollen.” And Mother testified that after A.C. got out of the
apartment, A.C. was “frightened,” “crying,” and “threw up.”
¶ 30 The State also called Officer. Officer testified that he
responded to Mother’s police call, and the State moved to admit
Officer’s body camera footage (Exhibit 19). The defense did not object,
and the court received Exhibit 19. The State played for the jury the
first portion of the recording, which was audio and video footage of
Officer talking with A.C. in Mother’s van. The State then asked
Officer about his preliminary interview with A.C. at the police
station. Officer testified that he observed A.C.’s “face was swollen”
and that she “had some marks around her neck and some bruises on
her face.” Officer testified that A.C. reported having been “hit in the
face multiple times” and having “vomited several times.”
7
STATE v. CENTENO
Opinion of the Court
¶ 31 Similarly, Nurse testified that she observed bruises on
A.C.’s face and neck. Nurse testified that, during the examination,
A.C. disclosed that Centeno “sat on top of her and . . . choked [her]”
and that he forced her to have sex with him. And Nurse testified that
the injuries on A.C.’s neck were consistent with her report of being
choked.
¶ 32 Detective testified that when he arrived at the station,
Officer was interviewing A.C. The State then pulled up the second
part of Exhibit 19, Officer’s body camera footage from the interview
room. The State did not play the footage for the jury but instead
showed Detective and the jury a still image from the exhibit, which
Detective confirmed depicted A.C. in the interview room. Detective
testified that he noticed A.C. was “emotionally upset” and
“physically injured,” with “red marks” and “swelling to her face and
neck.” And he testified that A.C. “made comments about vomiting.”
¶ 33 Detective also testified about his interview with Centeno. At
that point, the State moved to admit portions of the audio and video
footage from that interview (Exhibit 27). The defense made no
objection, and the State played the footage for the jury.
¶ 34 Finally, Detective addressed the State’s forensic evidence.
On cross-examination, defense counsel asked Detective about
blankets and articles of clothing A.C. brought in during a follow-up
interview. Although the blankets were “on the bed where the alleged
strangulation happened,” Detective acknowledged that “no
indications of urine were detected” on the blankets. Detective further
testified that A.C.’s clothing, though collected, was not tested and that
this “may have been an oversight.” Detective conceded that it would
have been “significant” if testing of the clothing had come back
negative because A.C. had “indicated that [her clothing] was
essentially soaked . . . with urine.”
¶ 35 After the State rested its case-in-chief, Centeno took the
stand in his own defense. On direct examination, Centeno admitted
that on the night in question he had argued with A.C. and that he was
“guilty of domestic violence.” He explained that he “put [his] hands
on her,” “slapped her,” and “hit her,” though he denied hitting A.C.
with “full force” or putting his hands around her neck. As for the
accusations of rape, he denied those, too. He testified that the
morning after the assault, he talked to A.C., they “kissed and ma[d]e
up,” they “ha[d] sex,” and A.C. “never once” indicated she did not
want to do so.
¶ 36 Centeno also testified about his flight from law
enforcement. Defense counsel had originally intended to avoid
8
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Opinion of the Court
testimony about Centeno’s flight, and he had successfully moved to
exclude evidence on the issue. But some of Centeno’s comments led
counsel to believe that the flight evidence was “coming in whether
[counsel] want[ed] [it] to or not.” So counsel decided to broach the
subject first and asked Centeno about it. Centeno testified that when
the police arrived at the apartment shortly after A.C. had left, he
“freaked out.” Centeno stated that he did not open the apartment
door, explaining, “I mean, who wants to go to jail? . . . I know that’s
what’s going to happen, you know.” Centeno then testified that after
ten to fifteen minutes had passed, he opened the door to leave. He
initially tried to walk away, but he ran from the police when they
shouted at him.
¶ 37 On cross-examination, Centeno walked back his earlier
denial of putting his hands on A.C.’s neck, and he admitted to causing
the swelling, red marks, and bruising on her face and neck. He also
acknowledged that he had choked her, but he claimed that it was a
part of “aggressive sex.” The State followed up by asking Centeno
why he had admitted to Detective that he strangled A.C. Centeno
explained that his “first language is not English” and that he “worded
it wrong.”
¶ 38 During closing arguments, the State, among other things,
invited the jury to consider Centeno’s admissions and to compare his
police interview with his trial testimony. The State argued that the
“version of events” Centeno testified to at trial was inconsistent with
his statements to Detective. For its part, the defense conceded that the
State had provided “clear beyond a reasonable doubt evidence that
[Centeno] from the outset has not disputed that he committed assault
with substantial bodily injury and domestic violence in the presence
of a child times two.” Counsel even suggested that the jury “find
[Centeno] guilty” of those charges. But counsel insisted that “there
are too many holes” in the charges for rape and aggravated assault to
find Centeno guilty of them.
¶ 39 The district court sent the jury to deliberate. The trial
exhibits, including video footage of Centeno’s police interview and of
Officer’s body camera, went with the jury into deliberations. Shortly
afterward, defense counsel objected to “the video footage” going
back to the jury room. The defense asserted that having those exhibits
go with the jurors “bolster[s] the prosecution’s case” and was akin to
“get[ting] transcripts of all the testimony that they’ve heard.” The
court overruled the objection.
¶ 40 The jury ultimately acquitted Centeno on one count of
aggravated assault but convicted him on two counts of domestic
9
STATE v. CENTENO
Opinion of the Court
violence in the presence of a child, one count of aggravated assault,
and two counts of rape. 2 Centeno later moved the district court for a
new trial, arguing in part that he was “completely deprived” of his
“ability to confront one of the witnesses against him” because the
State discontinued its examination of Child after she became
emotional. The court denied Centeno’s motion, finding that the
defense “made no attempt to call the child as a witness,” and
concluding that “there was no error, let alone prejudicial error.”
¶ 41 Centeno appeals.
ISSUES AND STANDARDS OF REVIEW
¶ 42 Centeno first argues the district court erred in not excluding
from the jury’s deliberations the exhibit containing footage of his
police interview. We review a district court’s decision to not withhold
a trial exhibit from jury deliberations for an abuse of discretion. Wyatt
v. State, 2021 UT 32, ¶ 21, 493 P.3d 621.
¶ 43 Second, Centeno contends his trial counsel was
constitutionally ineffective for not objecting to the admission of the
footage of Officer’s interactions with A.C. Also, Centeno contends
that counsel was ineffective in allowing the portion of the exhibit that
had not been played for the jury to go with the jury into deliberations.
“An ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89
P.3d 162.
¶ 44 Third, Centeno argues the district court erred in denying his
motions for a mistrial and a new trial. “We review the denial of a
motion for a mistrial under an abuse of discretion standard.” State v.
Silva, 2019 UT 36, ¶ 36, 456 P.3d 718. We also generally review a
district court’s denial of a motion for a new trial for abuse of
discretion, but we review any underlying legal conclusions for
correctness. See State v. Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551.
ANALYSIS
I. EXHIBIT 27
¶ 45 After the jury retired to deliberate, Centeno objected to
Exhibit 27—the footage of his police interview—going back to the
jury room, arguing that allowing the jury to view the exhibit
_____________________________________________________________
2 The jury acquitted Centeno of an aggravated assault charge in
which the State alleged that he had threatened A.C. with a knife.
10
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Opinion of the Court
“bolster[ed] the prosecution’s case” and placed undue emphasis on
the interview.3 The district court overruled the objection.
¶ 46 On appeal, Centeno challenges the court’s overruling of his
undue emphasis objection, arguing that allowing the jury to review
the footage in its deliberations was an abuse of discretion. Centeno
also posits two new theories on appeal: first, that the court erred in
overruling his objection because allowing the jury to have the exhibit
violated his constitutional rights to be present during all critical
stages of the proceedings and to confront the witnesses against him;
and second, that the court erred in overruling his objection because
the video depicted him in handcuffs.
¶ 47 We hold that the district court did not abuse its discretion in
overruling Centeno’s undue emphasis objection and allowing the
jury to take Exhibit 27 into its deliberations. Because Centeno’s
alternative theories are not preserved, and no exception to the
preservation rule applies, we do not reach their merits.
A. Undue Emphasis Objection
¶ 48 Centeno contends that the district court erred when, over
his objection, it allowed the footage of his police interview to go back
with the jury during deliberations. We disagree.
¶ 49 Rule 17(k) of the Utah Rules of Criminal Procedure
“occupies the field” regarding the exhibits that juries in criminal cases
can take into their deliberations. Wyatt v. State, 2021 UT 32, ¶ 21, 493
P.3d 621. The rule states, in relevant part: “Upon retiring for
deliberation, the jury may take . . . all exhibits which have been
received as evidence, except exhibits that should not, in the opinion
of the court, be in the possession of the jury, such as exhibits of
unusual size, weapons or contraband.” UTAH R. CRIM. P. 17(k).
¶ 50 Thus, as we recently observed in Wyatt v. State, the rule
“expressly allows the jury to take all exhibits back to deliberations
except those which the court decides in its discretion the jury should
not have.” 2021 UT 32, ¶ 19. And a court abuses its discretion only
when allowing the exhibit in the jury room would “create a likelihood
[of] injustice,” such as when the court is motivated by “bias,
prejudice, or malice,” or “when its decision was against the logic of
_____________________________________________________________
3 Centeno’s objection was general in nature and appeared to apply
to both video exhibits, Exhibit 19 (A.C.’s interactions with Officer) and
Exhibit 27 (Centeno’s police interview). But because Centeno has
challenged the district court’s ruling only as it applies to Exhibit 27, we
limit our analysis accordingly.
11
STATE v. CENTENO
Opinion of the Court
the circumstances and so arbitrary and unreasonable as to shock one’s
sense of justice.” See id. ¶ 23 (cleaned up).
¶ 51 In exercising its discretion, the court “may consider whether
the jury’s unfettered access to the exhibit would lead to undue
emphasis.” Id. ¶ 24. But as we noted in Wyatt, a defendant’s out-of-
court statements are “not typically a category that causes concern”
under rule 17(k). Id. ¶ 26. This is because a defendant’s statement
impugning his own credibility or incriminating himself carries “little
risk” of undue emphasis—instead, statements the defendant has
furnished against himself generally “warrant[] whatever emphasis
may result.” See id. ¶¶ 24, 26 (cleaned up).
¶ 52 Here, we conclude that the district court did not abuse its
discretion when it overruled Centeno’s objection and allowed the jury
to take Exhibit 27 into deliberations. By default, rule 17(k) allows
Exhibit 27 to go back with the jury. 4 And although the jury’s access to
the footage of Centeno’s police interview may have supported the
State’s case, any emphasis that the jury placed on Exhibit 27 in
deliberations was not unwarranted. In speaking with Detective,
Centeno furnished evidence against himself, and the State used that
evidence to introduce admissions and show inconsistencies in
Centeno’s story. As we recognized in Wyatt, a defendant’s
incriminating out-of-court statements generally “warrant[] whatever
emphasis” the jury chooses to place on them. Id. ¶ 24 (cleaned up).
Allowing that evidence to accompany the jury to its deliberations was
not so arbitrary and unreasonable as to shock our sense of justice, and
thus we affirm.
B. Unpreserved Theories
¶ 53 Centeno alternatively contends the court abused its
discretion in allowing the jury to take Exhibit 27 into deliberations
because doing so violated his constitutional rights to be present
during a critical stage of the proceedings and to confront the
witnesses against him. Centeno also complains that he was
prejudiced by the video because it showed him in handcuffs. The
State contends Centeno has not preserved these theories. We agree
with the State.
_____________________________________________________________
4 In Wyatt v. State, we referred rule 17(k) to our advisory committee
on the rules of criminal procedure “for direction on whether the rule
itself should include additional guidelines for a district court in
determining whether an exhibit should be withheld from the jury.”
2021 UT 32, ¶ 24 n.28, 493 P.3d 621. The committee currently has the
issue under consideration. We look forward to receiving its report.
12
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Opinion of the Court
¶ 54 Under our preservation rule, any issue brought on appeal
“must be sufficiently raised to a level of consciousness before the trial
court” such that the court has “an opportunity to rule on” it. State v.
Sanchez, 2018 UT 31, ¶ 30, 422 P.3d 866 (cleaned up). This requirement
promotes judicial economy and fairness. State v. Larrabee, 2013 UT 70,
¶ 15, 321 P.3d 1136. And the preservation rule “applies to every claim,
including constitutional questions,” unless a defendant demonstrates
an exception applies. Id. (cleaned up).
¶ 55 Centeno contends his objection was “broad enough to
preserve” the confrontation and prejudice theories he now presents
on appeal. But for purposes of preservation, “we view issues
narrowly,” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443 (cleaned
up), and require a party to raise an issue before the district court with
specificity, id. ¶ 15. Moreover, where “a party makes an objection at
trial based on one ground, [that] objection does not preserve for
appeal any alternative grounds for objection.” State v. Low, 2008 UT
58, ¶ 17, 192 P.3d 867. Here, Centeno’s objection on grounds of undue
emphasis did not raise before the district court the issues that he now
asserts on appeal: that his rights to be present and to confront adverse
witnesses were violated, and that the video unfairly depicted him in
handcuffs. Accordingly, he did not preserve these theories. See
Sanchez, 2018 UT 31, ¶ 30; Low, 2008 UT 58, ¶ 17.
¶ 56 Centeno alternatively asserts that, to the extent we deem
these theories unpreserved, we should consider them under the
exceptional circumstances exception to the preservation rule.
¶ 57 It is well established that we will not address the merits of
an unpreserved issue absent a showing that an exception to the
preservation rule applies. See, e.g., Johnson, 2017 UT 76, ¶ 15. The
exceptional circumstances doctrine is one of those exceptions, State v.
Flora, 2020 UT 2, ¶ 9, 459 P.3d 975, but it “is applied sparingly” and
reserved “for the most unusual circumstances,” Johnson, 2017 UT 76,
¶ 29 (cleaned up). To invoke the doctrine, a party must make a
showing of “a rare procedural anomaly,” id. ¶ 31, and only then will
the court “consider the effects of the anomaly, and whether those
effects warrant an exception to our preservation requirement,” id.
¶ 37. In analyzing these effects, we may consider, among other things,
whether “manifest injustice” would result from not reaching the
merits of the issue and whether “a significant constitutional right or
liberty interest is at stake.” Id. (cleaned up).
¶ 58 Centeno argues, for the first time in his reply brief, that
exceptional circumstances exist because “it is asking a great deal of
defense counsel to come up with a fully briefed articulation of the
13
STATE v. CENTENO
Opinion of the Court
basis of his objection . . . under the pressure of the trial proceedings.”
We reject this argument for two reasons. First, it is untimely. We
typically do not address issues raised for the first time in a reply brief.
Id. ¶ 16. Second, we do not see it as a “rare procedural anomaly” to
require a trial attorney to identify the legal basis for an objection—
even under the pressure of trial. See id. ¶ 29. Were it otherwise, the
exception would swallow the rule.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 59 At trial, the State called Officer to testify and, on direct
examination, introduced Officer’s body camera footage as Exhibit 19.
The exhibit contained two relevant parts: A.C. in Mother’s van talking
with Officer and A.C.’s interview with Officer at the police station. 5
¶ 60 In the first part, A.C. is speaking with Officer through an
open car window shortly after Mother helped her leave the
apartment. During the two-minute exchange, Officer asks A.C. if she
has a way to contact Centeno. Unable to reach him on a messenger
app, A.C. tells Officer that she thinks Centeno has “left” and is “gone”
from the apartment.
¶ 61 The second part of Exhibit 19 captures A.C.’s seventeen-
minute interview with Officer at the police station. The video begins
with Officer taking down A.C.’s personal information and telling
A.C. that he appreciates her calling and that he knows “it takes a lot
of strength.” Officer then asks A.C. to walk him through the incident.
She tells Officer that she and Centeno argued the night before and
that he hit her in the head “maybe like 100 times” and choked her
three times. She also explains that her face and neck are swollen and
that she has been throwing up. Before A.C. has a chance to tell the rest
of her story, Detective enters the room and interrupts the interview
to ask A.C. to go to the hospital to receive medical care.
¶ 62 When the State moved to admit Exhibit 19, defense counsel
made no objection. The State played the first part of the video—the
van footage—for the jury. The second part—the station footage—was
not played; only a still shot of A.C. in the interview room was shown.
When the jury retired for deliberations, the district court sent the trial
exhibits, including Exhibit 19, with the jury.
_____________________________________________________________
5 Exhibit 19 also contained a third part, showing Officer and other
law enforcement personnel walking through A.C.’s apartment. This
footage has no audio and was played for the jury in open court. As
Centeno concedes, part three “reveals nothing material to the
discussion in this appeal” and so we need not discuss it further.
14
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Opinion of the Court
¶ 63 Centeno contends that defense counsel rendered
constitutionally ineffective assistance in two ways relating to Exhibit
19. First, Centeno argues that counsel provided ineffective assistance
by not objecting to the exhibit’s admission on the ground that it was
inadmissible hearsay. Second, Centeno argues that counsel was
ineffective in not objecting to the jury taking the station footage into
deliberations because that segment of the video was not played in
open court. 6
¶ 64 “To prove ineffective assistance of counsel, the defendant
must establish two things: first, that trial counsel performed
deficiently and second, that trial counsel’s deficient performance
prejudiced the defendant.” State v. Bonds, 2023 UT 1, ¶ 35, 524 P.3d
581 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). We are
free to reject a defendant’s claim under either prong of the Strickland
test because “failure to establish either prong . . . is fatal to an
ineffective assistance of counsel claim.” Honie v. State, 2014 UT 19,
¶ 31, 342 P.3d 182. And the U.S. Supreme Court has instructed that
where “it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, . . . that course should be followed.”
Strickland, 466 U.S. at 697. Because we conclude that Centeno’s
defense was not prejudiced by counsel’s alleged deficient
performance, we limit our analysis to the second prong.
¶ 65 When evaluating prejudice in the context of ineffective
assistance, we “consider the totality of the evidence” before the jury
and “ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different” absent
counsel’s alleged error. Id. at 695–96. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome” of the
proceeding. Id. at 694.
¶ 66 We conclude that Centeno cannot demonstrate ineffective
assistance of counsel because he has not shown that the jury’s verdict
“would reasonably likely have been different” had either part of
Exhibit 19 been excluded from evidence or the jury room. See id. at
696.
A. Exhibit 19: The Van Footage
¶ 67 Centeno contends that the footage of A.C. in the van was
prejudicial because her statement to Officer that Centeno was not in
_____________________________________________________________
6 Centeno has not argued that his counsel was ineffective for not
objecting to the admission of the station segment on the basis that it
was not played for the jury.
15
STATE v. CENTENO
Opinion of the Court
the apartment was not “indic[ative] of innocence” and cast doubt on
his credibility. We are unpersuaded for several reasons.
¶ 68 First, the evidence was of minimal probative value. Officer
asked A.C. if Centeno was still in the apartment and if A.C. could
reach him. When it appeared that Centeno’s phone was not
connecting to the messenger app, A.C. assumed it meant he had left
the apartment. Before that, Mother had told Centeno that she needed
to take A.C. and the children for the day without any suggestion that
A.C. was going to report Centeno to the police. Thus, we doubt the
jury would view A.C.’s belief that Centeno had left the apartment as
suggestive of guilt.
¶ 69 Second, Centeno’s own admission of flight overshadowed
any negative inference that the jury could have drawn from A.C.’s
statement to Officer. Centeno testified that, contrary to A.C.’s
assumption, he had not left the apartment before police arrived.
Centeno explained that when the police showed up at the apartment
door, he would not open it, stating, “I mean, who wants to go to jail?
. . . I know that’s what’s going to happen, you know.” Centeno also
testified that when he finally left the apartment ten to fifteen minutes
later, he ran from police when they shouted at him. Given this
testimony, the jury had no need to infer from A.C.’s statement that
Centeno had fled due to a guilty conscience. Centeno admitted as
much himself.
¶ 70 Third, and perhaps most importantly, the State’s case
against Centeno was overwhelming. A.C. offered compelling
testimony of Centeno’s rape and assault, testimony that was
corroborated by photographs and several other witnesses who
testified to her overall condition and injuries the morning after.
Further, Centeno corroborated her account of the couple’s arguments,
and he admitted—either in the police interview, at trial, or both—that
he hit and strangled A.C. Although Centeno denied raping A.C. and
choking her unconscious, his denials rang hollow given his initial
assertions to Detective that he was intoxicated and could not
remember what had happened the night before, his reaction when
Detective told him it was legally possible to rape your wife, and his
other inculpatory admissions. In other words, the jury did not need
to infer guilt based on A.C.’s innocuous statement that she believed
Centeno had left the apartment. Rather, the jury undoubtedly relied
on Centeno’s own admissions and other corroborative evidence of his
guilt, leaving us no reason to believe that the verdict would have been
different had the jury not heard A.C. tell Officer that Centeno had left
the apartment. See Strickland, 466 U.S. at 696 (explaining that a verdict
16
Cite as: 2023 UT 22
Opinion of the Court
“only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support”).
Thus, Centeno’s claim of ineffective assistance of counsel based on
Exhibit 19’s van footage is unavailing.
B. Exhibit 19: The Station Footage
¶ 71 Centeno contends that the footage of A.C.’s interview at the
police station was unfairly prejudicial because it showed Officer
lending support to A.C. and showed A.C. “overwrought” with
emotion. Centeno also argues that because the interview footage was
not played for the jury in open court, he was deprived of the ability
to explain or comment on it. Centeno argues that, had the jury not
seen this footage, it is reasonably likely that the jury’s verdict would
have been different. 7 Again, for several reasons, we disagree.
¶ 72 First, to the extent the footage showed Officer expressing
support to A.C., we disagree with Centeno’s assertion that it was
“gratuitous.” A.C. arrived at the police station with visible injuries on
her face and neck. Officer could see that she had been injured—a fact
not in dispute—and thus he understandably tried to make her feel
comfortable as she made her report. The jury would have understood
that Officer’s comments about it taking strength to call the police was
not a comment on the veracity of A.C.’s specific accusations,
particularly where the interview had only just begun.
¶ 73 Second, we do not share Centeno’s view that the jury was
swayed against him by seeing A.C. as “overwrought” and
“anguished” in the footage. During the interview, A.C. appears
remarkably controlled. Although she occasionally cried, she was
focused and responsive to Officer’s questions, and she described
events without losing her composure. Further, the jury already saw
A.C. testify emotionally at trial, with the prosecutor twice asking her
if she needed a break. Because the jury personally witnessed an
equally, if not more, emotional A.C. at trial, we cannot agree that a
reasonable probability exists that the jury’s verdict would have been
different had Exhibit 19’s station footage been excluded.
¶ 74 Centeno next contends he was uniquely prejudiced by the
fact that the station footage was given to the jury despite it not having
been played in open court. Specifically, he asserts this prejudiced him
because he “had no opportunity to ‘explain or even comment [upon]’
footage played only during deliberations.” (Quoting State v. Midgett,
_____________________________________________________________
7 Centeno assumes the jury watched the station footage during its
deliberations. For purposes of our analysis, we do the same.
17
STATE v. CENTENO
Opinion of the Court
680 N.W.2d 288, 293 (S.D. 2004).) 8 But in making that assertion,
Centeno does not identify a single comment or explanation he would
have made if the footage had been played during trial. That is not
surprising. After all, A.C.’s interview statements—assuming the jury
watched the footage—would not have been news to the jury.
¶ 75 If the jury had watched the video, it would have heard A.C.
tersely tell Officer that Centeno hit her repeatedly and choked her
three times, that her face and neck were swollen, and that she had
been throwing up. But A.C. testified to the same at trial, and in much
greater and more graphic detail. Further, Centeno generally did not
dispute A.C.’s police station assertions. To the extent Centeno tried to
explain, he did so by testifying that the choking was part of
“aggressive sex” and that A.C.’s injuries were incurred in a mutual
fight she provoked, and by emphasizing testimony that A.C.’s bruises
could be the result of vomiting as opposed to strangulation. Thus, not
only was the station footage cumulative of the more vivid testimonial
evidence, but Centeno has not shown there were any assertions in the
unplayed footage that he did not confront.
¶ 76 Finally, in making his prejudice argument, Centeno has not
shown that the station footage “added enough to the overall
evidentiary picture already before the jury to impact the outcome of
the [trial].” See State v. Scott, 2020 UT 13, ¶ 45, 462 P.3d 350. As we
have already observed, the evidence against Centeno was
compelling. Centeno admitted—in his interview played for the jury
and during his trial testimony—that he was guilty of assaulting A.C.
and was responsible for her injuries. See supra ¶¶ 24, 33, 35, 37.
Further, Centeno’s admissions were corroborated by the testimony of
A.C., Mother, Officer, Detective, and Nurse, as well as by
photographs of A.C.’s injuries. A.C. testified in compelling detail
about the abuse she suffered at the hands of Centeno, and A.C. did
_____________________________________________________________
8 Centeno’s reliance on Midgett is inapposite, as that case is neither
controlling on this court nor persuasive under the circumstances. See
generally State v. Midgett, 680 N.W.2d 288 (S.D. 2004). In Midgett, the
appellate court analyzed whether the trial court “erred in allowing the
jury, during its deliberations, to view a videotaped interview of [the
defendant] that was neither played during trial nor admitted into
evidence.” Id. at 290 (emphasis added). The appellate court determined
that “[a]llowing the jury to consider . . . non-admitted evidence was
prejudicial error that require[d] reversal.” Id. at 293 (emphasis added).
That holding is unpersuasive here both because Exhibit 19 was
admitted into evidence and because Centeno’s argument comes to us
in an ineffective assistance posture.
18
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Opinion of the Court
not have the same credibility challenges Centeno did. Centeno had
admitted to fleeing from police, he suddenly remembered details of
the night in question after originally telling Detective he could not
recall what had happened, his police interview and his trial testimony
lacked consistency, and his claims of consensual sex and choking
were difficult to square with A.C.’s injuries and his admissions of
assault. In sum, given the overwhelming evidence against Centeno,
no reasonable probability exists that, absent admission of Exhibit 19’s
footage of A.C.’s station interview, the jury “would have had a
reasonable doubt respecting guilt.” See Strickland, 466 U.S. at 695.
Accordingly, Centeno’s ineffective assistance claim based on the
station footage of Exhibit 19 is also unavailing. 9
III. MISTRIAL AND NEW TRIAL MOTIONS
¶ 77 Centeno challenges the district court’s decisions denying his
motions for a mistrial and a new trial. First, Centeno contends the
district court abused its discretion when it denied his mistrial motion,
arguing that Child’s “non-verbal breakdown” left the jurors “to
speculate as to” the reason for the breakdown, which Centeno claims
“could only be interpreted against him.” Second, Centeno contends
that the district court erred when it denied his motion for a new trial
because, in Centeno’s view, his rights under the Confrontation Clause
of the Sixth Amendment were violated. Specifically, Centeno claims
_____________________________________________________________
9 Relatedly, Centeno asserts that “the jury’s possessing in
deliberations evidence not played in open court” is “reversible
structural error.” For that proposition, Centeno cites United States v.
Noushfar, 78 F.3d 1442 (9th Cir. 1996), amended by 140 F.3d 1244 (9th
Cir. 1998) (mem.). In Noushfar, the Ninth Circuit Court of Appeals
determined that “[s]ending unplayed tapes to the jury room” is “a
structural error requiring automatic reversal.” Id. at 1445. But Noushfar
is not binding on this court. And regardless, it is inapposite. Noushfar
involved a preserved error, not an ineffective assistance of counsel
claim. See id. at 1444. Although structural error analysis generally
presumes prejudice, see State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543, a
showing of prejudice is still required when structural error is asserted
through the framework of ineffective assistance, see Weaver v.
Massachusetts, 582 U.S. 286, 300–03 (2017); see also State v. Garcia, 2017
UT 53, ¶ 36, 424 P.3d 171 (“[A]lthough a violation of the defendant’s
right to a public trial is a structural error, where the unpreserved issue
was raised as ineffective assistance of counsel, Strickland prejudice is
not shown automatically.”). Centeno has not met his “burden to show
that he was prejudiced by his counsel’s performance.” See Garcia, 2017
UT 53, ¶ 37; see also supra ¶¶ 71–76.
19
STATE v. CENTENO
Opinion of the Court
he was deprived of the opportunity to cross-examine Child when the
State elected not to resume its examination of her. Because Centeno
has not shown error, both arguments fall short.
A. The Mistrial Motion
¶ 78 At trial, the State called eight-year-old Child to testify.
When she was asked if she remembered the last night Centeno was at
her apartment, Child became emotionally distraught. The court then
granted the State’s request for a recess to allow Child to compose
herself. However, during the recess, the State decided not to resume
the examination and the defense chose not to cross-examine her.
Outside the jury’s presence, the defense conceded that it “[c]ertainly”
did not want the State to resume its examination, but it still objected
to the “situation” as “unfairly prejudicial” and moved for a mistrial.
Specifically, the defense argued that the jury was left to “wild[ly]
speculat[e]” about the reason for her breakdown. The court denied
the motion and, upon the jury’s return, instructed it to disregard the
fact that Child took the witness stand but would not return to testify.
See supra ¶ 28.
¶ 79 The district court “has broad discretion in determining
whether a mistrial should be declared.” State v. Workman, 635 P.2d 49,
53 (Utah 1981). A court may grant a mistrial “where the circumstances
are such as to reasonably indicate that a fair trial cannot be had and
that a mistrial is necessary in order to avoid injustice.” State v. Wach,
2001 UT 35, ¶ 45, 24 P.3d 948 (cleaned up).
¶ 80 But “the prerogative of a reviewing court is much more
limited.” Id. “Because a district judge is in an advantaged position to
determine the impact of courtroom events on the total proceedings,”
we will not reverse the court’s denial of a mistrial motion “unless it is
plainly wrong in that the incident so likely influenced the jury that
the defendant cannot be said to have had a fair trial.” State v. Allen,
2005 UT 11, ¶ 39, 108 P.3d 730 (cleaned up); see also State v. Butterfield,
2001 UT 59, ¶ 47, 27 P.3d 1133 (explaining that an appellant
challenging the denial of a mistrial must show unfair prejudice, such
that “the verdict was substantially influenced by the challenged
testimony” (cleaned up)).
¶ 81 We have no basis to reverse the district court’s denial of
Centeno’s mistrial motion. He has not shown that Child’s breakdown
on the witness stand “so likely influenced the jury that [he] cannot be
said to have had a fair trial.” See Allen, 2005 UT 11, ¶ 39 (cleaned up).
Not only was the jury instructed not to draw any inference from the
fact that the prosecution elected not to proceed with its examination
of Child given her “emotional state,” the reason for her reaction was
20
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Opinion of the Court
not apparent. Child, who was only eight years old, might have been
afraid of testifying in a courtroom. After all, she struggled to answer
even the State’s preliminary questions. Or, Child might have reacted
emotionally because she missed Centeno or because she was
uncomfortable recalling the events of the night in question. But
regardless of the reason, it was a passing moment in a four-day trial,
and little could be drawn from it. And, if Centeno was concerned
about the jury speculating as to the reason for the breakdown, he
could have called Child back to the stand for cross-examination. He
chose, however, not to do so. Thus, any possible influence Child’s
reaction could have had on the jury was not unfair. Accordingly, we
affirm the court’s denial of Centeno’s mistrial motion.
B. The New Trial Motion
¶ 82 After the jury returned its verdict, the defense again raised
the issue of Child’s emotional breakdown on the witness stand, this
time moving for a new trial under rule 24(a) of the Utah Rules of
Criminal Procedure. Centeno argued that a new trial was warranted
because he was “completely deprived of the ability to confront one of
the witnesses against him.” The court denied the motion, reasoning
that Centeno “made no attempt to call the child as a witness.”
¶ 83 A district court may grant a new trial “in the interest of
justice if there is any error or impropriety which had a substantial
adverse effect upon the rights of a party.” UTAH R. CRIM. P. 24(a).
Centeno’s claim for a new trial fails because the premise for his
claim—an alleged violation of his Sixth Amendment right to
confrontation—is flawed.
¶ 84 “The Sixth Amendment of the United States Constitution,
which applies to both federal and state criminal prosecutions, grants
the accused the right to be confronted with the witnesses against
him.” State v. Timmerman, 2009 UT 58, ¶ 9, 218 P.3d 590 (cleaned up).
That right to confrontation guarantees a defendant the opportunity to
cross-examine a witness but it does not guarantee that the
opportunity be exercised. State v. Pecht, 2002 UT 41, ¶ 39, 48 P.3d 931.
In other words, the confrontation clause is not violated simply
because a defendant elects not to question a witness who appears for
cross-examination at trial. See id.
¶ 85 Although the State elected not to resume its examination
after Child became emotionally distraught, Centeno had every
opportunity to call Child back to the stand for cross-examination and
elected not to. Under these circumstances, Centeno’s confrontation
21
STATE v. CENTENO
Opinion of the Court
rights were not infringed. Thus, the district court correctly denied
Centeno’s motion for a new trial on this ground. 10
CONCLUSION
¶ 86 We conclude the district court did not err in overruling
Centeno’s undue emphasis objection and sending Exhibit 27—his
police interview footage—back with the jury. Because Centeno did
not preserve his additional theories challenging Exhibit 27, we do not
address them. As for Centeno’s challenge based on ineffective
assistance of counsel arising out of the admission of Exhibit 19—the
footage of A.C.’s interactions with Officer—it fails for lack of
prejudice. Finally, we conclude the district court did not err in
denying Centeno’s motions for a mistrial and a new trial arising out
of Child’s breakdown on the witness stand. Accordingly, we affirm
Centeno’s convictions.
_____________________________________________________________
10 Centeno also invokes the cumulative error doctrine, asserting
that the alleged errors, when “considered together,” require reversal.
“Under the cumulative error doctrine, we will reverse only if the
cumulative effect of the several errors undermines our confidence that
a fair trial was had.” State v. Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (cleaned
up). “But if the claims are found on appeal to not constitute error, . . .
the doctrine will not be applied.” State v. Maestas, 2012 UT 46, ¶ 363,
299 P.3d 892 (cleaned up). Because Centeno has not shown any errors
to cumulate, the doctrine is inapplicable.
22
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